Waggoner v. SSA

Filing 13

MEMORANDUM OPINION & ORDER: 1. The Commissioner's Motion for Summary Judgment R. 12 is GRANTED. 2. The Plaintiff's Motion for Summary Judgment R. 10 is DENIED. Signed by Judge Danny C. Reeves on 3/24/17.(KSS)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
(at Ashland)
HOLLY SUE LYKINS WAGGONER,

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Plaintiff,
V.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security1,
Defendant.
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Civil Action No. 0: 16-084-DCR

MEMORANDUM OPINION
AND ORDER

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This matter is pending for consideration of cross-motions for summary judgment filed
by Plaintiff Holly Sue Lykins Waggoner (“Waggoner”) [Record No. 10] and Defendant Nancy
A. Berryhill, Acting Commissioner of the Social Security Administration (“the
Commissioner”). [Record No. 12] For the reasons that follow, the Commissioner’s motion
will be granted and the relief that Waggoner seeks will be denied.
I.
On February 15, 2006, Administrative Law Judge (“ALJ”) Andrew J. Chwalibog
determined that Waggoner was able to perform light and sedentary work and was not disabled
under the Social Security Act (“Act”). [Tr. 104] Waggoner later filed an application for
disability insurance benefits (“DIB”) on May 17, 2006 through her attorney Eric Conn,
alleging a disability beginning on March 13, 2004. [Tr. 241] Her claim was denied initially
and on reconsideration. [Tr. 116-19] Waggoner then requested an administrative hearing

1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. She is substituted
as the defendant in this action pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.

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before an ALJ. [Tr. 248] ALJ David B. Daugherty did not hold a hearing and determined that
Waggoner was disabled based largely on Dr. Frederic Huffnagle’s opinion. [Tr. 127-28]
After finding reason to believe that fraud was involved in the decision to award benefits
in Waggoner’s case, the Social Security Administration notified Waggoner that it would be
redetermining her claim for benefits from the onset date through the date of the decision. [Tr.
173] It specifically identified evidence that Eric Conn submitted, including evidence from Dr.
Frederic Huffnagle, as being suspected of fraud. [Id.] The agency thus informed Waggoner
that any evidence from Dr. Huffnagle would be disregarded during the redetermination
process. [Id.] On redetermination, Waggoner was permitted to submit additional evidence in
support of her original claim for benefits. [Tr. 175] The agency would then evaluate the
legitimate evidence that she initially presented along with any additional evidence and
determine whether she had a disability from the alleged onset date through the date of the
decision. [Id.]
Following an administrative hearing, ALJ Paul Guaghen concluded that Waggoner was
not disabled from the alleged onset date through the date of the prior decision. [Tr. 20] She
then sought review by the Appeals Council, which was denied. [Tr. 1] Waggoner has
exhausted her administrative remedies and this case is ripe for review pursuant to 42 U.S.C. §
405(g).
II.
Waggoner was 48 years old on the date that she applied for DIB. [Tr. 241] She has a
7th grade education and has previous employment as a certified nurse’s assistant. [Tr. 259,
264] The claimant worked as a certified nurse’s assistant from 1990-93 and then again from
1995-2004.

[Tr. 259]

Waggoner alleged inability to work due to chronic obstructive
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pulmonary disease (“COPD”), emphysema, bronchial asthma, depression, insomnia, leg pain,
heart problems, ankle problems, urinary incontinence, lower back pain, high blood pressure,
high cholesterol, and diabetes. [Tr. 258]
At various times during the relevant time period, Waggoner was diagnosed with: mild
coronary artery disease [Tr. 367]; COPD [Tr. 728]; fibromyalgia [Tr. 671, 803]; cervical disc
disease with disc protrusions [Tr. 741]; disc herniation [Tr. 848]; depression and anxiety [Tr.
699-705, 722-24]; and problems sleeping [Tr. 672, 699-705]. Waggoner was diagnosed with
a fracture and torn ligament in her ankle in July 2004. [Tr. 340] She obtained an operation to
address these injuries. [Id.] The physician reported that her “[f]inal x-ray was good” and she
“left the Operating Room in good condition.” [Id.] In 2005 a plate and screws were removed
from ankle, and the physician reported that Waggoner “left the Operating Room in good
condition.” [Tr. 348] She later indicated that the pain in her ankle had improved as a result of
the surgery. [Tr. 673]
Dr. Tim Garner treated Waggoner for urinary incontinence in March 2005. [Tr. 349]
He assessed the claimant with mixed urinary incontinence and scheduled urodynamic studies.
[Tr. 350] These studies revealed normal findings. [Tr. 351] She obtained a vaginal sling to
address her condition. [Tr. 360] The physician stated that Waggoner “tolerated the procedure
well.” [Id.] She later reported that her symptoms significantly improved as a result of the
procedure. [Tr. 672]
Treatment notes from January 2006 reflect that Waggoner complained of pain “all
over.” [Tr. 670] She was diagnosed with fibromyalgia in February 2006. [Tr. 699-70] The
physician recommended physical therapy and prescribed Neurontin. [Tr. 670] Treatment

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notes state that the Neurontin “helped with the pain . . . .” [Tr. 671] Physicians later noted
“multiple arthralgias/myalgias” in November 2006. [Tr. 728]
Waggoner was given a cardiac catheterization in June 2004, which revealed mild
coronary artery disease. [Tr. 367] She also had COPD. [Id.] Treatment records from
throughout 2004 indicate that she reported a cough but that her breathing improved with
medication that her condition generally had improved. [Tr. 673-80, 727] She obtained a
second cardiac catheterization in December 2006. [Tr. 840] The physician reported that the
operation was successful. [Tr. 843]
Waggoner was referred for an MRI in September 2006 after complaining of neck pain.
[Tr. 741] The MRI showed minimal annular bulging at C3/4 and a protrusion at C5/6. [Id.]
In March 2007, Waggoner obtained an MRI of the lumbar spine. [Tr. 848] The findings were
of L4/L5 and L5/S1 disc herniations. [Id.]
Waggoner was given a disability examination in July 2006. [Tr. 687] She claimed
disability due to fibromyalgia, lung problems, and depression. [Id.] Dr. Barry Burchett
reported that Waggoner ambulated with a normal gait, did not require the use of a handheld
assistive device, and was comfortable in supine and sitting positions. [Tr. 689] Waggoner
appeared depressed and had a frequent cough. [Id.] Dr. Burchett reported that he “would
guess that 16 of 18 trigger-points are tender” but that the evaluation was “difficult to verify”
because “most control points are also sensitive . . . .” [Id.] Dr. Burchett noted that the claimant
did not have shortness of breath following minimal exertion but had probable asthma, probable
chronic bronchitis, and possible emphysema. [Tr. 691] Pulmonary functioning was in the
range of normal and an EKG was unremarkable. [Id.] Additionally, she had normal range of

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motion in all areas tested, a negative straight leg test in sitting and supine positions, and 5/5
strength in upper and lower extremities. [Tr. 689, 690, 692]
Dr. William R. Rigby also evaluated Waggoner for disability in July 2006. [Tr. 699]
He remarked that her gait was normal, she used no assistive devices, and there was no
appearance of invalidism.

[Tr. 700]

He noted “inadequacies of personality” and that

Waggoner appeared “tired and lacking in stamina.” [Id.] Dr. Rigby concluded that she
appeared “free of major mental health problems . . . .” [Tr. 703] Waggoner reported a range
of depressive symptoms, which Dr. Rigby stated “appeared moderate in degree and chronic in
nature . . . .” [Id.] Waggoner also described anxiety symptoms. [Id.] Dr. Rigby found
psychological conditions of dysthymia and anxiety disorder, and stated that these conditions
were “likely to continue indefinitely and . . . improve or worsen in correlation with physical
problems.” [Tr. 704] However, he opined that Waggoner appeared “to have good ability to
understand, retain, and follow simple instructions and good ability to sustain attention to
perform simple repetitive tasks” and “fair ability to relate to . . . fellow workers and supervisors
and fair ability to tolerate stress and pressures with work activity.” [Id.]
In September 2006, a state agency consultant concluded that Waggoner’s mental
impairments were not severe. [Tr. 719] In November 2006, another state agency consultant
reviewed Waggoner’s mental impairments and affirmed this finding. [Tr. 748-59]
During the administrative hearing before ALJ Gaughen, Waggoner testified she had to
stop working as a certified nurse assistant in 2004 because of her pain. [Tr. 59] The claimant
stated that she was unable to work in a less strenuous position because she was not able to lift
things, it hurt her to stretch, and it hurt to bend. [Tr. 63] She asserted that she was unable to

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stand for longer than 15 minutes or walk more than 50 feet without stopping to rest, and that
lifting any more than 5 pounds would be painful. [Tr. 64]
Waggoner reported that her daily activities involved spending “a lot of time laying
trying to get comfortable” and not doing “much of anything.” [Tr. 76] She left her home
primarily for doctor’s appointments or to go to the grocery store, where she would walk
through the store and shop. [Id.] Waggoner testified that her sister lived behind her and would
help her “with what needed to be done.” [Tr. 77] She stated that she was unable to complete
chores. [Tr. 80]
Waggoner also testified that she had a manual wheelchair that she only needed to be
part of the time, and that she used while grocery shopping. [Tr. 79] She states that she began
using the wheelchair after she injured her ankle. [Id.]
The VE then testified, and the ALJ presented the following hypothetical of a person
with the capacity for:
Some light exertion, as that is defined in the Dictionary of Occupational Titles,
but not a full range of it.
Assume that she could do forward bending or stooping occasionally and
capacity to lift or carry objects is also occasional for the criteria set out for light
work using occasional in the DOT.
She could not operate foot controls as part of a job or occupation. She could not
keep up with fast paced production demands nor would she be a candidate to
work at unprotected heights or in driving industrial equipment nor should she
work at a place where there’s temperature extremes or extremes of humidity.
Overall, what’s being laid out here is she couldn’t tolerate unusual work
stressors or work in dangerous conditions. The worker presents with capacity
to work on the feet for six hours out of eight in a day and for give or take two
hours at one time. She could work seated for at least six hours of an eight-hour
day and for two at one time, with some allotment for a sit/stand alternating
option.
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The individual could be expected to work for eight of eight, and there is not a
frequent need to change positions.
[Tr. 82] The ALJ further clarified that, during a normal workday, the hypothetical person
would “spend three-quarters of the time working on the feet, if needed, and sporadically for
periods that would be certainly less than [an] hour, she could continue work but in a chair or
on a stool.” [Tr. 83] The VE concluded that this hypothetical person could work as cashier
II, document preparer, and escort vehicle driver. [Tr. 83-84]
Waggoner’s attorney then modified the question such that the hypothetical person could
not bend or stoop, could stand no more than 25 to 30 minutes at a time, and could sit no more
than 25 to 30 minutes at a time. [Tr. 84] The VE replied that a person with such additional
limitations could not be an escort vehicle driver; could still work as a document preparer; and
could work as a cashier II, but there would be fewer cashier II jobs available for this
hypothetical person. [Tr. 84-85] The attorney then further modified the question to include
frequent breaks due to urinary incontinence, and the VE further eroded the available cashier II
positions. [Tr. 87] Waggoner’s attorney imposed an additional modification for fibromyalgia
pain and cervical pain that caused the hypothetical person to be unable to concentrate, and the
VE stated that this modification eliminated all jobs. [Tr. 88] Finally, the attorney modified
the original question such that the hypothetical person would need to stop working for 45
minutes at a time to recover, and the VE concluded that this limitation would eliminate all
jobs. [Tr. 91]
ALJ Gaughen found severe impairments of residual effects of ankle fracture, disc
herniation, fibromyalgia, COPD, and coronary artery disease. [Tr. 31] He concluded that the
claimant’s impairments of urinary incontinence, hypertension, hyperlipidemia, diabetes, major
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depressive disorder and anxiety disorder were not severe. [Id.] He further determined that
Waggoner did not have an impairment or combination of impairments that met or medically
equaled the severity of a listed impairment. [Tr. 33]
Next, the ALJ found that Waggoner had the residual functional capacity (“RFC”) to
perform:
light work as defined in 20 CFR 404.1567(b) except that the beneficiary could
occasionally forward bend, stoop or lift/carry objects for light work and can
never operate foot controls. The beneficiary cannot keep up with fast-paced
production demands and cannot perform work involving unprotected heights,
driving industrial equipment, temperature extremes or humidity extremes.
Additionally, the beneficiary cannot tolerate unusual work stressors or work in
dangerous conditions. The beneficiary can work on the feet for 6 hours in an 8hour work day for 2 hours at a time. After being on the feet, the beneficiary
could be off-feet for less than an hour while continuing work. With some
allotment for a sit/stand option, the beneficiary could work 8 of 8 hours. There
is not a frequent need to change positions.
[Tr. 34]
Based on the evidence presented, the ALJ concluded that Waggoner experienced
symptoms from her physical impairments. [Tr. 35] However, the issue was “the degree of her
symptoms and whether [they] cause disabling limitations.”

[Id.]

He found multiple

inconsistencies between the evidence and Waggoner’s own assertions regarding her
symptoms. [Tr. 35-36] For example, the consultative examiner noted that she had normal gait
and normal range of motion in all of her extremities, but Waggoner testified that she required
the use of a wheelchair. [Tr. 36] Additionally, she continued to smoke despite alleging
breathing problems, and the record also indicated that her breathing problems improved with
medication. [Id.]
The ALJ considered Dr. Rigby’s opinion regarding Waggoner’s mental impairments,
but assigned it partial weight because it was internally inconsistent in some respects. [Tr. 37]
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He adopted the state agency doctor’s findings that Waggoner’s mental health impairments
were not severe. [Id.] He also declined to consider the hypotheticals that Waggoner’s attorney
presented to the VE, stating that these questions were not supported by the evidence. [Id.]
Based on the VE’s testimony the ALJ concluded that there were jobs that Waggoner
could have performed which existed in significant numbers in the national economy during
the relevant time period. [Tr. 38] As a result of the foregoing findings, the ALJ concluded
that Waggoner was not disabled under the Act. [Tr. 39]
III.
Under the Act, a “disability” is defined as “the inability to engage in ‘substantial gainful
activity’ because of a medically determinable physical or mental impairment of at least one
year’s expected duration.” Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007)
(citing 42 U.S.C. § 423(d)(1)(A)). A claimant’s Social Security disability determination is
made by an ALJ in accordance with “a five-step ‘sequential evaluation process.’” Combs v.
Comm’r of Soc. Sec., 459 F.3d 640, 642 (6th Cir. 2006) (en banc) (quoting 20 C.F.R. §
404.1520(a)(4)). If the claimant satisfies the requirements of the first four steps of the process,
the burden shifts to the Commissioner with respect to the fifth step. See Jones v. Comm’r of
Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003).
A claimant must first demonstrate that she is not engaged in substantial gainful
employment at the time of the disability application. 20 C.F.R. § 404.1520(b). Second, the
claimant must show that she suffers from a severe impairment or a combination of
impairments. 20 C.F.R. § 404.1520(c). Third, if the claimant is not engaged in substantial
gainful employment and has a severe impairment that is expected to last for at least twelve
months and that meets or equals a listed impairment, she will be considered disabled without
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regard to age, education, and work experience. 20 C.F.R. § 404.1520(d). Fourth, if the
claimant has a severe impairment but the Commissioner cannot make a determination of the
disability based on medical evaluations and current work activity, the Commissioner will
review the claimant’s residual functional activity (“RFC”) and relevant past work to determine
whether she can perform his past work. If she can, she is not disabled. 20 C.F.R. §
404.1520(f).
Under the fifth step of the analysis, if the claimant’s impairments prevent her from
doing past work, the Commissioner will consider his RFC, age, education, and past work
experience to determine whether she can perform other work. If she cannot perform other
work, the Commissioner will find the claimant disabled. 20 C.F.R. § 404.1520(g). “The
Commissioner has the burden of proof only on ‘the fifth step, proving that there is work
available in the economy that the claimant can perform.’” White v. Comm’r of Soc. Sec., 312
F. App’x 779, 785 (6th Cir. 2009) (quoting Her v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th
Cir. 1999)).
This Court’s review is limited to determining whether the ALJ’s findings are supported
by substantial evidence and whether the ALJ employed the proper legal standards in reaching
his decision. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). Substantial
evidence is such relevant evidence as reasonable minds might accept as sufficient to support
the conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Bass v. McMahon, 499 F.3d
506, 509 (6th Cir. 2007). The Commissioner’s findings are conclusive if they are supported
by substantial evidence. 42 U.S.C. § 405(g).

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IV.
Waggoner presents five arguments for consideration. Her first argument is that the
reconsideration process violated her rights under the Due Process Clause.

However,

Waggoner did not raise this claim in her Complaint. [Record No. 1] The Complaint does not
mention the redetermination process at all, much less state a claim that the process amounted
to a violation of the Due Process Clause. Instead, she states only that the Commissioner’s
decision “is not supported by substantial evidence and is contrary to the law and evidence . . .
.” [Id.]
A plaintiff is not entitled to raise a claim for the first time at the summary judgment
stage. Tucker v. Union of Needletrades, Industrial and Textile Employees, 407 F.3d 784, 788
(6th Cir. 2005) (noting that the appropriate procedure is to amend the complaint and that
permitting a plaintiff to raise a claim for the first on summary judgment “would subject
defendants to unfair surprise”). In Bristol v. Comm’r of Soc. Sec., 408 Fed. Appx. 956 (6th
Cir. 2011), the claimant raised due process claims in the motion for summary judgment, but
those claims were not in the complaint and the claimant did not attempt to amend the complaint
to assert them. The Sixth Circuit recognized that a complaint may be constructively amended
if the parties fully litigate an issue that was not included in the complaint. Id. at 957. However,
because the Commissioner did not address the claims in its motion for summary judgment, the
complaint had not been constructively amended and the due process claims were not properly
raised. Id. (citing Tucker, 407 F.3d at 787-89). The Sixth Circuit thus, like the district court,
declined to consider the claims. Id.
Waggoner’s Complaint does not include a Due Process claim and the Complaint has
not been constructively amended to include the claim. The Commissioner begins her argument
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relating to the Due Process claim by stating that Waggoner waived this claim by failing to raise
it in the Complaint. Accordingly, the Complaint was not constructively amended and still fails
to assert the Due Process claim that Waggoner now seeks to have this Court address. Because
the Complaint does not raise the claim, it is not properly raised on summary judgment and this
Court declines to consider it.
Waggoner’s remaining arguments address the ALJ’s consideration of the evidence.
She cites to various aspects of the medical evidence and the ALJ’s conclusion regarding her
RFC and argues that the ALJ evaluated the evidence improperly and thus that his conclusions
were incorrect.

Although her arguments are difficult to follow, Waggoner appears to

effectively argue that the ALJ’s determination regarding her RFC was not supported by
substantial evidence and raises various challenges based on specific aspects of the RFC
finding.
Substantial evidence exists when a “reasonable mind might accept” the relevant
evidence “as adequate to support a conclusion.” Kirk v. Sec. of Health and Human Servs., 667
F.2d 524, 535 (6th Cir. 1981). As long as there is substantial evidence to support the ALJ’s
decision, it will be upheld, “even if there is substantial evidence in the record that would have
supported an opposite conclusion . . . .” Wright v. Massanari, 321 F.3d 611, 614 (6th Cir.
2003) (citation omitted).
Waggoner specifically addresses fibromyalgia and argues that the ALJ improperly gave
her diagnoses for this condition insufficient weight. Here, the record reflects that Waggoner
was diagnosed with fibromyalgia and that she was prescribed Neurontin for this condition.
[Tr. 671] However, the record lacks a medical opinion regarding the severity of this condition
or its effect on Waggoner’s ability to work. Accordingly, the evidence regarding the impact
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of the fibromyalgia comes from Waggoner herself, who testified that her pain rendered her
unable to work. [Tr. 59-64]
A claimant’s subjective complaints of pain “can support a claim for disability, if there
is also evidence of an underlying medical condition in the record.” Cruse v. Comm’r of Soc.
Sec., 502 F.3d 532, 542 (6th Cir. 2007) (citation omitted). However, “an ALJ is not required
to accept a claimant’s subjective complaints and may . . . consider the credibility of a claimant
when making a determination of disability.”

Cruse, 502 F.3d at 542.

The ALJ’s

determinations regarding a claimant’s credibility are accorded significant deference “since the
ALJ is charged with observing the claimant’s demeanor and credibility.” Id. (citation
omitted). These findings will be upheld if they are supported by substantial evidence. Ulman
v. Comm’r of Soc. Sec., 693 F.3d 709, 714 (6th Cir. 2012).
Here, the ALJ considered the fibromyalgia diagnosis and stated that he found that
Waggoner did experience symptoms from her conditions but that she was not credible
regarding the “degree of her symptoms and whether [they] cause disabling symptoms.” [Tr.
15, 16] He noted the consultative examination of Dr. Barry Burchett, who concluded that a
fibromyalgia diagnosis was difficult to verify because most of Waggoner’s control points were
sensitive. [Tr. 16] The ALJ also cited Dr. Burchett’s notes that Waggoner walked with a
normal gait, did not require a handheld device, and had a normal range of motion in all of her
extremities and her spine. [Id.] In contrast to these notes, Waggoner testified that she required
the use of a wheelchair during the relevant period. [Tr. 79] The ALJ concluded that
Waggoner’s allegations of her disabling pain were discredited by Dr. Burchett’s report
regarding her ability to walk and the full range of motion in her extremities and spine. [Tr.
16-17]
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There is substantial evidence to support the ALJ’s credibility determination.
Waggoner’s records contain very little objective evidence regarding her fibromyalgia and she
has not introduced any medical evidence suggesting that her condition would be reasonably
expected to produce disabling pain. See Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531
(6th Cir. 1997). The record shows that Waggoner was diagnosed with fibromyalgia in early
2006, and was prescribed medication at that time.2 However, the Court was unable to locate
any further evidence relating to this diagnosis for the remainder of the relevant period, through
April 2007, and the Plaintiff did not identify any. The absence of further treatment or
discussion of this condition supports the ALJ’s conclusion that Waggoner exaggerated its
severity. Additionally, Dr. Burchett’s opinion that the fibromyalgia diagnosis was difficult to
verify also provides evidence that the condition was less severe than alleged. [Tr. 689]
Likewise, the report that she was able to walk normally and had a full range of motion in her
extremities weakens her allegations of disabling pain. [Id.]
Waggoner also asserted that the ALJ “significantly disregarded [Waggoner’s]
breathing problems in assessing her RFC . . . .” But she does not explain what further
limitations her breathing problems would impose beyond those listed in the RFC, or how her
breathing problems would prevent her from performing light, primarily sedentary work.
Without this explanation there is no reason to conclude that the RFC that Waggoner was
assigned would not accommodate whatever breathing problems she claims. In any event, the
ALJ specifically discussed Waggoner’s breathing problems and his conclusion that they were

2

As Waggoner points out, the ALJ did incorrectly state that she was not prescribed pain
medication. However, this misstatement does not amount to error if there is substantial evidence
to support the ALJ’s determination. See Wright, 321 F.3d at 614.

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not especially limiting is supported by substantial evidence. First, she continued to smoke
cigarettes daily, which suggested that she was not as impaired in her breathing as she
suggested.3 [Tr. 16, 701] Additionally, the records reflect that her breathing and overall
condition had improved with medication. [Tr. 673-80, 727] Dr. Burchett found that her lungs
were clear and she did not exhibit shortness of breath with exertion or while lying flat. [Tr.
691]
Waggoner’s third argument consists of numerous citations to various portions of the
record. Waggoner does not cite to any legal authority in this section. Likewise, she fails to
provide any indication of what relief to which the unexplained portions of the record entitle
her. The Court is unable to evaluate this argument because it is unable to discern what, if any,
argument Waggoner is attempting to make. “Issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived. It is not
sufficient for a party to mention a possible argument in the most skeletal way, leaving the court
to put flesh on its bones.” McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (internal
quotation marks and citation omitted).
Next, Waggoner argues that the ALJ improperly discounted the opinion of consultative
examiner William R. Rigby, who opined on Waggoner’s mental impairments. Although ALJs
are required to consider the findings of consultative examiners, they “are not bound by” their
findings. 20 C.F.R. § 404.1527(2)(i). As a result, ALJs are not required to even discuss a
consultative examiner’s opinion in their decisions, much less provide reasons for the weight

3

Waggoner makes much of the fact that the record reflects that she had reduced her smoking,
but the fact remains that for much of the relevant time period, she was smoking some number of
cigarettes daily. [Tr. 701]

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assigned to their opinions. Dykes ex rel. Brymer v. Barnhart, 112 Fed. Appx. 463, 468 (6th
Cir. 2004). It thus follows that ALJs are free to assign appropriate weight to a consultative
examiner’s opinion based on all evidence in the record.
As an initial matter, the ALJ discussed Dr. Rigby’s opinion and gave reasons for his
decision to give it partial weight, which not only complies with the regulations but also goes
beyond what the regulations require. [Tr. 18] However, even if the ALJ did improperly fail
to give controlling weight to Dr. Rigby’s opinion, giving it controlling weight would not have
affected Waggoner’s disability status because the opinion does not support a finding of
additional mental limitations. Dr. Rigby stated that Waggoner appeared “free of major mental
health problems . . . .” [Tr. 703] Although Dr. Rigby found anxiety and depression, he
concluded that Waggoner appeared “to have good ability to understand, retain, and follow
simple instructions and good ability to sustain attention to perform simple repetitive tasks” and
“fair ability to relate to . . . fellow workers and supervisors and fair ability to tolerate stress and
pressures with work activity.” [Tr. 704] This opinion is consistent with the ALJ’s RFC
finding.
Finally, Waggoner challenges the ALJ’s hypothetical question, arguing that it
overstated her RFC and “disregarded the combined effects of her impairments.” The claimant
does not describe the impairments or specify which limitations should have been imposed.
She cites generally to limitations suggested by Waggoner’s counsel during the administrative
hearing, but does not cite to any evidence demonstrating additional limitations that the ALJ
should have included in the hypothetical question but did not. Again, while these deficiencies
make Waggoner’s argument difficult to evaluate, the record reflects that the argument lacks
merit because the ALJ’s hypothetical question was proper.
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An ALJ’s hypothetical question to the VE must accurately portray the claimant’s
abilities and limitations. Brantley v. Comm’r of Soc. Sec., 637 Fed. Appx. 888, 897 (6th Cir.
2016). However, the hypothetical question “need not include a comprehensive list of a
claimant’s medical conditions.” Id. (citation omitted). Further, the ALJ is only required to
include a limitation if he finds it credible. Casey v. Sec’y of Health & Human Servs., 987 F.2d
1230, 1235 (6th Cir. 1993).
The ALJ’s hypothetical question largely mirrored his RFC determination which, as will
be discussed, was supported by substantial evidence. Additionally, the suggested limitations
are unsupported by the evidence and the ALJ was thus not required to include them in the
hypothetical question. Waggoner’s attorney proposed greater limitations that are presumably
based on Waggoner’s allegations of pain—greater limitations on her ability to stand and sit for
extended periods of time and greater limitations on her ability to maintain focus. [Tr. 84-91]
As previously discussed, the ALJ did not find the alleged severity of Waggoner’s pain
symptoms credible, and he is not required to include limitations that he did not find credible.
Additionally, Waggoner’s attorney suggested a limitation based on Waggoner’s urinary
incontinence. [Tr. 86] The record, however, reflects that Waggoner underwent surgery for
this condition and that condition improved following the operation. [Tr. 360, 672] Waggoner
did not identify any evidence that urinary incontinence continued to be an issue after the
surgery. She has thus failed to demonstrate that the ALJ was required to include this limitation
in the hypothetical question.
Regarding Waggoner’s arguments collectively, her challenges to the ALJ’s RFC
determination fail because the determination is supported by substantial evidence. First,
regarding Waggoner’s subjective assertions of disabling pain, the ALJ concluded that these
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assertions were not credible. As discussed previously, the ALJ’s credibility determination on
this issue is supported by substantial evidence. [Tr. 34, 82] There is also substantial evidence
to support the ALJ’s finding regarding Waggoner’s limitations in movement. Dr. Burchett
noted that Waggoner walked with a normal gait without use of an assistive device, had a
normal range of motion in all areas tested, and also had full strength in her upper and lower
extremities. [Tr. 689, 690, 692] Additionally, Waggoner reported that the condition of her
ankle had improved after she obtained surgery. [Tr. 673] Regarding her neck and back pain,
an MRI did report bulging, a protrusion, and disc herniations, but beyond these assessments,
Waggoner does not identify any evidence in the record that these conditions caused her any
significant difficulty or that she was being treated for these conditions. [Tr. 741, 848] The
only other evidence is Waggoner’s assertion of pain symptoms, which, as previously
discussed, the ALJ properly determined was not credible. There is thus substantial evidence
to support the ALJ’s RFC finding that Waggoner could perform light work.4
Substantial evidence also supports the ALJ’s determination that Waggoner’s mental
limitations did not inhibit her ability to do the unskilled work identified at step five. Waggoner
has been diagnosed with anxiety and depression. [Tr. 703] However, the record supports a
finding that these conditions do not inhibit her ability to work. Dr. Rigby opined that she had
“good ability to understand, retain, and follow simple instructions and good ability to sustain
attention to perform simple repetitive tasks” and “fair ability to relate to . . . fellow workers
and supervisors and fair ability to tolerate stress and pressures with work activity.” [Tr. 704]

4

For the reasons previously stated, the record does not support a finding of additional
limitations for Waggoner’s urinary incontinence. The ALJ thus did not err by declining to include
this in his RFC determination.

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Similarly, two state agency consultants concluded that Waggoner’s mental impairments were
not severe. [Tr. 719, 748-59]5
V.
Waggoner did not include a claim that her Due Process Clause rights were violated in
her Complaint, so the claim is waived and will not be considered. Her remaining arguments
regarding the ALJ’s consideration of the evidence also fail. Broadly, there was substantial
evidence to support the ALJ’s determination regarding her RFC. Specifically, the ALJ’s
credibility determination is supported by substantial evidence. The ALJ also gave consultative
examiner Dr. Rigby’s opinion the required consideration but even if he did not, the opinion
would not have supported a finding of mental limitations. Finally, the hypothetical question
posed to the VE properly accounted for Waggoner’s limitations. Accordingly, it is hereby
ORDERED as follows:
1.

The Commissioner’s Motion for Summary Judgment [Record No. 12] is

GRANTED.
2.

The Plaintiff’s Motion for Summary Judgment [Record No. 10] is DENIED.

This 24th day of March, 2017.

5

Waggoner vaguely references problems sleeping, and identifies some support in the record,
but fails to demonstrate that these problems amount to limitations that should be accounted for in
the RFC.

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