Berretta v. Commissioner of Social Security

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
GAIL BERRETTA,
Plaintiff,
vs- 	No. 2:25-cv-02176-SHL-jay
FRANK BISIGNANO,
Commissioner of Social Security,
Defendant.
REPORT AND RECOMMENDATION
Plaintiff Gail Berretta brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial
review of the final decision of the Commissioner of Social Security (the “Commissioner” or
“Defendant”) denying Plaintiff supplemental security income (SSI) under Title XVI of the Social
Security Act. (D.E. 1, 17). Defendant has responded in opposition (D.E. 19), Plaintiff has filed a
Reply (D.E. 20), and this matter is now ripe. As the parties have not consented, this matter has
been referred to the Magistrate Judge for a Report and Recommendation. (D.E. 12). For the reasons
stated below, the Magistrate Judge recommends that Plaintiff’s appeal be denied and the decision
of the Commissioner be affirmed.
ADMINISTRATIVE PROCEEDINGS
On December 2, 2022, Plaintiff filed an application for supplemental security income
(SSI), alleging disability beginning on November 23, 2022 (Tr. 179). Plaintiff’s claims were
denied initially and upon reconsideration, and Plaintiff requested a hearing with an administrative
law judge (hereinafter “ALJ”) (Tr. 44-53, 61-73). A hearing was held on March 15, 2024 (Tr. 31-
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43). The ALJ issued a decision finding Plaintiff not disabled on March 27, 2024 (Tr. 19-26). The
Appeals Council later denied Plaintiff’s request for further review (Tr. 1-5).
Plaintiff has exhausted her administrative remedies, and the ALJ’s decision stands as the
final decision of the Commissioner. Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for
judicial review of a “final decision” of the Commissioner. Plaintiff timely filed the instant action
(D.E. 1).
FACTUAL BACKGROUND
Education and Employment Background
Plaintiff was 55 years old on the date the application was filed (Tr. 24). She reported having
a General Equivalency Diploma (GED). (Id.). Plaintiff alleged disability due to hearing loss,
diabetes, thyroid issues, arthritis in her back, a “veins problem,” and the fact that she “had a test
for osteoarthritis” (Tr. 207). She stated that she stopped working in 2012 because of her conditions
(Id.). Plaintiff has no past relevant work. (Tr. 24).
Medical Records
Plaintiff (D.E. 17, 20) and Defendant (D.E. 19) both discuss the medical evidence they
believe is relevant in their respective briefs. The ALJ discussed Plaintiff's medical records for the
relevant time period as well (Tr. 19-26). While there is no need to summarize the medical records
herein, the relevant records have been comprehensively reviewed.
Hearing Testimony
Plaintiff was represented by attorney Elizabeth Cunningham in the hearing on March 15,
2024 (Tr. 31). Plaintiff and a Vocational Expert (V.E.) both testified. Id. The transcript of the
testimony from the hearing has been carefully reviewed.
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APPLICABLE LAW AND THE ALJ’S FINDINGS
Applicable Law
Under 42 U.S.C. § 405(g), a claimant may obtain judicial review of any final decision made
by the Commissioner after a hearing to which he or she was a party. “The court shall have the
power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying,
or reversing the decision of the Commissioner of Social Security, with or without remanding the
cause for a rehearing.” 42 U.S.C § 405(g). The court’s review is limited to determining whether
there is substantial evidence to support the Commissioner’s decision, id. and whether the correct
legal standards were applied. Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997). See also
Landsaw v. Sec’y of Health & Human Servs, 803 F.2d 211, 213 (6th Cir. 1986).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (quoting
Richardson v. Perales, 402 U.S. 389 (1971)). It is “more than a mere scintilla of evidence, but less
than a preponderance.” Bell v. Comm’r of Soc. Sec., 105 F.3d 244, 245 (6th Cir. 1996) (citing
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The Commissioner, not the court,
is charged with the duty to weigh the evidence, to make credibility determinations and resolve
material conflicts in the testimony, and to decide the case accordingly. Walters v. Comm’r of Soc.
Sec., 127 F.3d 525, 528 (6th Cir. 1997); Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir. 1990);
Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). When substantial evidence supports the
Commissioner’s determination, it is conclusive, even if the substantial evidence also supports the
opposite conclusion. Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004); Foster v.
Halter, 279 F.3d 348, 53 (6th Cir. 2001); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986).
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The ALJ Findings
The ALJ’s decision contains in part the following pertinent findings and conclusions:
1. 	Claimant has not engaged in substantial gainful activity since November 23, 2022, the
application date.
2. 	Claimant has the following severe impairments: sensorineural hearing loss and arthritis of
the right knee (20 CFR 416.920(c)).
3. 	Claimant has not had an impairment or combination of impairments that meets or medically
equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
416.920(d), 416.925 and 416.926).
4. 	After careful consideration of the entire record, the ALJ finds that Claimant has the residual
functional capacity to perform a full range of work at all exertional levels but with the
following nonexertional limitations: she should avoid concentrated exposure to loud
background noises and can occasionally kneel, crouch, and crawl.
5. 	Claimant has no past relevant work.
6. 	Claimant was born on February 17, 1967 and was 55 years old, which is defined as an
individual of advanced age, on the date the application was filed (20 CFR 416.963).
7. 	Claimant has a General Equivalency Diploma (GED) (20 CFR 416.964).
8. 	Transferability of job skills is not an issue because Claimant does not have past relevant
work (20 CFR 416.968).
9. 	Considering Claimant’s age, education, work experience, and residual functional capacity,
there are jobs that exist in significant numbers in the national economy that Claimant can
perform (20 CFR 416.969 and 416.969a).
10. Claimant has not been under a disability, as defined in the Social Security Act, since
November 23, 2022, the date the application was filed.
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ANALYSIS
Standard of Review
The Social Security Act authorizes “two types of remand: (1) a post judgment remand in
conjunction with a decision affirming, modifying, or reversing a decision of the [Commissioner]
(a sentence-four remand); and (2) a pre-judgment remand for consideration of new and material
evidence that for good cause was not previously presented to the [Commissioner] (a sentence-six
remand).” Faucher v. Sec'y of Health and Human Servs., 17 F.3d 171, 174 (6th Cir. 1994) (Citing
42 U.S.C. § 405(g)).
Plaintiff here is requesting a sentence-four remand. Pursuant to 42 U.S.C. § 405(g), the
court has the authority to “enter, upon the pleadings and transcript of the record, a judgment
affirming, denying, or reversing the decision of the [Commissioner], with or without remanding
the cause for a hearing.” 42 U.S.C. § 405(g).
A court must affirm the Commissioner’s decision unless it rests on an incorrect legal
standard or is unsupported by substantial evidence. 42 U.S.C. § 405(g); McClanahan v. Comm'r
of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (citations omitted). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Buxton
v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (quoting Richardson v. Perales, 402 U.S. 389 (1971)).
It is “more than a mere scintilla of evidence, but less than a preponderance.” Bell v. Comm'r of Soc.
Sec., 105 F.3d 244, 245 (6th Cir. 1996) (citing Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). If there is substantial evidence to support the Commissioner’s findings, they should
be affirmed, even if the court might have decided facts differently, or if substantial evidence would
also have supported other findings. Smith v. Chater, 99 F.3d 780, 782 (6th Cir. 1996); Ross v.
Richardson, 440 F.2d 690, 691 (6th Cir. 1971). The court may not re-weigh evidence, resolve
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conflicts in evidence, or decide questions of credibility. Garner, 745 F.2d at 387. The substantial
evidence standard allows considerable latitude to administrative decision makers because it
presupposes “there is a ‘zone of choice’ within which the Commissioner can act, without the fear
of court interference.” McClanahan, 474 F.3d at 833 (quoting Buxton v. Halter, 246 F.3d 762, 772
(6th Cir. 2001)).
The court may consider any evidence in the record, regardless of whether it has been cited
by the ALJ. Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The court may not,
however, consider any evidence that was not before the ALJ for purposes of substantial evidence
review. Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Furthermore, the court is under no
obligation to scour the record for errors not identified by the claimant, Howington v. Astrue, No.
2:08-CV-189, 2009 WL 2579620, at *6 (E.D. Tenn. Aug. 18, 2009) (stating that assignments of
error not made by claimant were waived), and arguments not raised and supported in more than a
perfunctory manner may be deemed waived, Woods v. Comm'r of Soc. Sec., No. 1:08-CV-651,
2009 WL 3153153, at *7 (W.D. Mich. Sept. 29, 2009) (citing McPherson v. Kelsey, 125 F.3d 989,
995-96 (6th Cir. 1997)) (noting that conclusory claims of error without further argument or
authority may be considered waived).
The court may immediately award benefits “only if all essential factual issues have been
resolved and the record adequately establishes a plaintiff’s entitlement to benefits.” Id. at 176
(citations omitted).” “A judicial award of benefits is proper only where the proof of disability is
overwhelming or where the proof of disability is strong and evidence to the contrary is lacking.”
Id. In the alternative, where there is insufficient support for the ALJ’s findings, the appropriate
remedy is to reverse and remand for further consideration. Morgan v. Astrue, No. 10-207, 2011
WL 2292305, at *8 (E.D. Ky. June 8, 2011) (citing Faucher, 17 F.3d at 174).
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The Parties’ Arguments and Analysis
Plaintiff argues that this matter should be reversed and remanded. Plaintiff complains that
substantial evidence does not support the ALJ’s RFC finding. Pl.’s Br. at 1. Specifically, Plaintiff
argues that “[t]he ALJ’s decision is not adequately explained or supported as it does not indicate
how the ALJ reasoned that the evidence of record demonstrates that Plaintiff has the assessed RFC
upon which the ALJ’s conclusion was based.” (D.E. 7).
A claimant’s RFC is “the most [the claimant] can still do despite [the claimant’s]
limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The ALJ must assess a claimant’s RFC
based on all of the relevant evidence in the record. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3);
see also SSR 96-8P, Assessing Residual Functional Capacity in Initial Claims, 1996 WL 374184,
at *3 (S.S.A. July 2, 1996) (“The RFC assessment is a function-by-function assessment based upon
all of the relevant evidence of an individual’s ability to do work-related activities.”). “[T]he ALJ
is charged with the responsibility of evaluating the medical evidence and the claimant’s testimony
to form an ‘assessment of his residual functional capacity.’” Webb v. Comm’r of Soc. Sec., 368
F.3d 629, 633 (6th Cir. 2004) (alteration in original) (quoting 20 C.F.R. § 416.920(a)(4)(iv)). An
ALJ can consider all of the evidence without directly addressing all of it. See Kornecky v. Comm’r
of Social Sec., 167 F. App’x 496, 507-08 (6th Cir. 2006) (quoting Loral Defense Systems–Akron
v. N.L.R.B., 200 F.3d 436, 453 (6th Cir. 1999)). The Court must affirm the decision of the ALJ if
there is substantial evidence to support the decision; it is not enough for the plaintiff to prove that
substantial evidence supports his or her preferred RFC. Rogers v. Comm’r of Soc. Sec., 486 F.3d
234, 241 (6th Cir. 2007); Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003).
Here, a review of the ALJ’s decision shows that contrary to Plaintiff’s claims otherwise,
substantial evidence supports the RFC in this case. Plaintiff first argues that the ALJ erred in
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finding that she did not have any exertional limitations. (D.E. 17, p. 8). The ALJ concluded that
Plaintiff did not have any exertional limitations but must avoid concentrated exposure to loud
background noises and could only occasionally kneel, crouch, and crawl. (Tr. 23). In response, the
Commissioner notes that the medical record was “fairly sparse,” but “supports the ALJ’s
conclusions.” (D.E. 19, p. 5).
With regard to Plaintiff’s arthritis of the right knee and lumbar spinal stenosis, the
Commissioner notes that Plaintiff exhibited normal strength in all extremities, a normal gait, and
normal range of motion when examined (see, e.g., Tr. 341, 346, 354, 399, 430). Also of note,
Plaintiff denied weakness or difficulty walking or denied musculoskeletal issues generally (see,
e.g., Tr. 249, 341, 354). In notes from Triumph Agility Care to Campbell Clinic on September 25,
2023, Plaintiff indicated she had no issues and denied pain, and was ready for discharge (Tr. 397,
399). On another occasion, in January 2023, Plaintiff was described as “totally asymptomatic” by
provider Pedro Velasquez, MD. (Tr. 362). At this appointment she denied difficulty ambulating
and weakness, denied gait abnormality and denied loss of strength. Plaintiff also noted she wanted
to schedule an appointment with an exercise and wellness coach (Tr. 362). This evidence is
substantial evidence in support of the ALJ’s findings of no exertional limitations.
With regard to Plaintiff’s hearing impairment, Plaintiff complains:
the ALJ’s suggestion that Plaintiff’s hearing loss is minimal and effectively
resolved with hearing aids impermissibly ignores her provider’s observation
that she cannot hear during examinations without amplification, or that her
hearing aids were causing her dizziness that resulted in multiple falls. T 458,
446. Most significantly, the ALJ completely ignored the recent audiology
test results which show that even at 95 dB, Plaintiff’s word recognition was
just 48% in the left ear, and her word recognition at 90dB in the right ear
was 52%. T 446.
(D.E. 17, p. 10). The Commissioner rebuts that the ALJ acknowledged Plaintiff’s hearing issues
but cited evidence showing that, while the impairment caused some limitations, the record did not
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warrant limitations beyond those found by the ALJ. The ALJ noted that Plaintiff reported that she
did “very well” with hearing aids in the Shea Clinic records dated April 3, 2023, and that Plaintiff
exhibited moderate sensorineural hearing loss (Tr. 21, 23-24). In her findings, the ALJ explained:
The records 	show 	the claimant 	has 	sensorineural 	hearing 	loss 	with
discrimination scores of 100 percent in the right ear and 80 percent in the
left ear. Speech reception thresholds [were] at 55 decibels. Otoscopic
examination was completely unremarkable (Exhibit 1F). Records from
Shea Clinic on April 3, 2023, show the claimant was doing very well with
hearing aids. On January 29, 2024, the claimant denied any subjective
changes in hearing (Exhibit 8F)
(Tr. 24). A review of the record shows that substantial evidence supports the ALJ’s findings with
regard to Plaintiff’s hearing issues. For example, in the notes from the January 2024 examination
that both Plaintiff and the ALJ reference, Plaintiff’s hearing level is marked as moderate or
moderately severe on a scale of normal to profound. Plaintiff reported improvement with
frequency of dizziness and that the “stuffy feeling” had totally resolved. (Tr. 446).
The Commissioner maintains that Plaintiff is seeking to reweigh the evidence, which is not
permitted. See Dyson v. Comm’r of Soc. Sec., 786 F. App’x 586, 588 (6th Cir. 2019) (“This court
does not weigh evidence, assess credibility, or resolve conflicts in testimony—that’s the ALJ’s
job.”) (citing Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir. 1990)). In her Reply, Plaintiff argues
that while the hearing aids did improve Plaintiff’s hearing impairment, the ALJ mischaracterized
the issue because the hearing aids caused dizziness which resulted in multiple falls. It is clear from
the record, however, that there was no mischaracterization. Plaintiff listed “loss of hearing” on her
disability application and indeed the ALJ acknowledged that “[m]edical records reflect a history
of hearing loss.” (Tr. 21). The ALJ considered the objective medical evidence submitted as well
as Plaintiff’s testimony. Plaintiff testified that the hearing aids helped. (Tr. 36). Plaintiff also
testified about falling, when the ALJ asked about other health problems:
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Q: Okay. And what other health problems do you have?
A: My back. My back is killing me now. My neck, my knee. I went through
the Panels Clinic. I’ve had a number of falls because of the issues with my
hearing and stuff. My balance was kind of weird and stuff like that, so I’ve
had a few [falls] and stuff like that. And it’s just I haven’t been able to – my
whole life has just been turned upside down with so many adjustments and
right now I’m just trying to get my pain under control. For one thing, I can’t
function because I’m in so much pain.
(Tr. 36). Plaintiff continued on to discuss her knee and back pain. This snippet of testimony was
the entirety of Plaintiff’s testimony regarding dizziness and falls. As discussed above, objective
medical records, which the ALJ discussed, noted improvement of Plaintiff’s hearing impairment.
And as for dizziness and falling, the Court agrees with the Commissioner that the medical evidence
is fairly sparse. “[T]he ALJ is charged with the responsibility of evaluating the medical evidence
and the claimant’s testimony to form an ‘assessment of his residual functional capacity.’” Webb v.
Comm’r of Soc. Sec., 368 F.3d 629, 633 (6th Cir. 2004) (alteration in original) (quoting 20 C.F.R.
§ 416.920(a)(4)(iv)). The ALJ did so here, and substantial evidence supports the ALJ’s RFC
finding.
The ALJ discussed Plaintiff’s severe and non-severe impairments she found were
“medically managed.” (Tr. 21-22, 24). The ALJ also specifically stated that in formulating the
RFC she had “considered all symptoms and the extent to which these symptoms can be reasonably
be accepted as consistent with the objective medical evidence and other evidence, based on the
requirements of 20 CFR 416.929 and SSR 16-3p.” (Tr. 23.) See Emard v Comm’r of Soc. Sec., 953
F.3d 844, 851 (6th Cir. 2020) (“[T]he ALJ’s statements that she had considered the entire record
and all of Emard’s symptoms suggest that she had considered Emard’s impairments in
combination.”); see also Gooch v. Secretary of Health & Human Servs., 833 F.2d 589, 591-592
(6th Cir. 1987). The Court will decline Plaintiff’s invitation to reweigh the evidence. See Nasser
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v. Comm’r of Soc. Sec., No. 22-1293, 2022 WL 17348838, at *2 (6th Cir. 2022) (ALJ properly
evaluated persuasiveness and the claimant’s arguments were merely “classic examples of
invitations to reweigh the evidence ….”) Substantial evidence supports the ALJ’s findings, and
the ALJ built an accurate and logical bridge between the evidence in this case and the resulting
RFC. Accordingly, the Magistrate Judge finds no reversible error.
CONCLUSION
The Magistrate Judge finds no reversible error. The ALJ properly considered the evidence
in this case. Substantial evidence contained in the record as a whole supports the ALJ’s findings.
The ALJ’s RFC finding was within the “zone of choice.” See Blakely v. Comm’r of Soc. Sec., 581
F.3d 399, 406 (6th Cir.2009); see also Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir.1986). While
Plaintiff may disagree with the ALJ’s reasons, that does not mean that the reasons were
insufficiently articulated or unsupported by the record. When the Court finds that substantial
evidence supports the ALJ’s decision, it must affirm that decision. See Smith v. Comm’r. of Soc.
Sec., 482 F.3d 876 (6th Cir. 2007) (“We will defer to the Commissioner’s factual finding that is
supported by substantial evidence, even if we might reach the opposite conclusion.”). Plaintiff had
a fair hearing and full administrative consideration in accordance with applicable statutes and
regulations. Because all essential issues have been resolved in this case and substantial evidence
supports the ALJ’s determination that Plaintiff was not disabled, neither an immediate award of
benefits, nor a remand is appropriate in this case. The Magistrate Judge therefore recommends that
the decision of the Commissioner be affirmed.
Respectfully submitted, this the 6th of February 2026.
s/ Jon A. York_______________
JON A. YORK
UNITED STATES MAGISTRATE JUDGE
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NOTICE
Within fourteen (14) days after being served with a copy of this report and recommendation
disposition, a party may serve and file written objections to the proposed findings and
recommendations. A party may respond to another party's objections within fourteen (14)
days after being served with a copy. Fed. R. Civ. P. 72(b)(2). Failure to file objections within
fourteen (14) days may constitute waiver and/or forfeiture of objections, exceptions, and
further appeal.
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