Perry v. SSA

Filing 19

MEMORANDUM OPINION AND ORDER; 1)Pla's 17 Motion for Summary Judgment is DENIED; 2)Defendant's 18 Motion for Summary Judgment is GRANTED. Signed by Judge Joseph M. Hood on 8/13/2013. (LST)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DIVISION OF KENTUCKY
NORTHERN DIVISION at COVINGTON

NICOLE PERRY,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
SOCIAL SECURITY
ADMINISTRATION,
Defendant.

Civil Case No.
2:12-cv-168-JMH
MEMORANDUM OPINION & ORDER

***
This matter is before the Court upon cross-motions
for

summary

Commissioner's
insurance
reviewed

judgment
denial

benefits.
the

record

on
of

Plaintiff's

her

appeal

application

[Tr.

10—21].1

and

being

for

The

otherwise

of

the

disability

Court,

having

sufficiently

advised, will deny Plaintiff's motion [D.E. 17] and grant
Defendant's motion [D.E. 18].
I.

OVERVIEW OF THE PROCESS AND THE INSTANT MATTER
The Administrative Law Judge ("ALJ"), in determining

disability, conducts a five-step analysis:
1.
An individual who is working and engaging in
substantial gainful activity is not disabled,
regardless of the claimant's medical condition.
1

These are not traditional Rule 56 motions for summary
judgment.
Rather, it is a procedural device by which the
parties bring the administrative record before the Court.
1

2.
An individual who is working but does not
have a "severe" impairment which significantly
limits his physical or mental ability to do basic
work activities is not disabled.
3.
If an individual is not working and has a
severe impairment which "meets the duration
requirement and is listed in appendix 1 or is
equal to a listed impairment(s)", then he is
disabled regardless of other factors.
4.
If a decision cannot be reached based on
current work activity and medical facts alone,
and the claimant has a severe impairment, then
the Secretary reviews the claimant's residual
functional capacity and the physical and mental
demands of the claimant's previous work. If the
claimant is able to continue to do this previous
work, then he is not disabled.
5.
If the claimant cannot do any work he did in
the past because of a severe impairment, then the
Secretary
considers
his
residual
functional
capacity,
age,
education,
and
past
work
experience to see if he can do other work. If he
cannot, the claimant is disabled.
Preslar v. Sec'y of Health & Human Servs., 14 F.3d 1107,
1110 (6th Cir. 1994) (citing 20 C.F.R. § 404.1520 (1982)).
"The burden of proof is on the claimant throughout the
first

four

disabled."

steps
Id.

of

this

process

to

prove

that

he

is

"If the analysis reaches the fifth step

without a finding that the claimant is not disabled, the
burden transfers to the Secretary."

Id.

In the instant matter, the ALJ considered Plaintiff’s
claim

in

evaluation

accordance
process.

with
[Tr.

the

10—21].
2

five-step
He

first

sequential
determined

under

step

one

substantial

that

gainful

activity

alleged onset date.
step

two

and

determinable

Plaintiff
since

[Tr. 12].

found

that

severe

has

not

April

engaged

in

2002,

the

24,

Next, the ALJ continued to

Plaintiff

has

two

impairments,

including

disc disease and chronic headaches.

medically

degenerative

[Tr. 12].

After deciding that Plaintiff’s impairments did not
equal

a

listed

Listing

impairment

1.04(A),

which

continuously

insisted

proceeded

step

to

under

three,

Plaintiff’s

that

four

step

Plaintiff

and

found

including

attorney
meets,

that

has

the

Plaintiff

ALJ

has

a

residual functional capacity (“RFC”) to perform light work.
[Tr. 17].

The ALJ concluded that she would be unable to

perform her past relevant work as a waitress with this RFC;
however, he determined with the assistance of a vocational
expert

that

other

work

exists

in

significant

numbers

nationally and across the state that Plaintiff can perform
in her condition.

[Tr. 19—20].

Thus, the ALJ determined

that Plaintiff is not disabled under the Social Security
Act.

[Tr. 20—21].
In

this

Commissioner’s

appeal,
decision

evidence of record.
the

ALJ

erred

by

Plaintiff
is

not

argues

supported

by

that

the

substantial

Specifically, Plaintiff argues that
1)

failing
3

to

hold

that

Plaintiff’s

degenerative

disc

1.04(A);

failing

2)

disease
to

meets

the

incorporate

criteria
a

of

medical

Listing
expert’s

modifications to his medical source statement that he made
while giving testimony at the hearing; and 3) improperly
discounting Plaintiff’s credibility as to her statements
regarding the intensity, persistence, and limiting effects
of her symptoms.

[D.E. 17].

The Court has considered

arguments by Plaintiff and the Commissioner, as well as the
administrative record, and, for the reasons stated below,
affirms the Commissioner’s decision.
II.

STANDARD OF REVIEW
In

reviewing

benefits,

the

the

court

ALJ's

may

decision

not

try

the

to

deny

case

de

disability
novo,

nor

resolve conflicts in the evidence, nor decide questions of
credibility.

Cutlip v. Sec'y of Health & Human Servs., 25

F.3d 284, 286 (6th Cir. 1994).

Instead, judicial review of

the ALJ's decision is limited to an inquiry into whether
the ALJ's findings were supported by substantial evidence,
42 U.S.C. § 405(g), Foster v. Halter, 279 F.3d 348, 353
(6th Cir. 2001), and whether the ALJ employed the proper
legal standards in reaching his conclusion, see Landsaw v.
Sec'y of Health & Human Servs., 803 F.2d 211, 213 (6th Cir.
1986).

"Substantial evidence" is "more than a scintilla of

evidence,

but

less

than

a

preponderance;
4

it

is

such

relevant

evidence

as

a

reasonable

adequate to support a conclusion."

mind

might

accept

as

Cutlip, 25 F.3d at 286.

III. FACTUAL AND PROCEDURAL BACKGROUND
At the time of her hearings, Plaintiff was a thirtyseven

year

old

woman

with

an

eleventh-grade

education.

[Tr. 664].

She has past work experience as a waitress.

[Tr. 665].

Plaintiff filed for disability under Title II

and

Title

XVI

on

April

beginning April 24, 2002.
both

initially

Plaintiff

and

requested

8,

[Tr. 10].

upon
a

2008,

with

issued

an

unfavorable

November 5, 2010.
Court.

the

decision

[Tr. 21].

[Tr.

ALJ,

[Tr. 10; 606—67].

second hearing on May 21, 2010.

disability

The claim was denied

reconsideration.

hearing

place on May 21, 2010.

alleging

10].

which

took

She received a

[Tr. 10; 30—87].
denying

The ALJ

disability

on

Plaintiff now appeals to this

[D.E. 1].

According to Plaintiff, she began having problems with
her back about twenty years ago when her son was born.
[Tr. 636].

Plaintiff has also been involved in at least

two car accidents in 2004 and 2008 (Tr. 451; 459], in which
she claims she experienced significant deterioration.
Plaintiff

has

a

well-documented

history

of

degenerative disc disease, supported by several MRIs in the
record.

[Tr. 367; 362; 509; 566—68].
5

Although Plaintiff’s

pain

associated

with

her

degenerative

disc

disease

was

primarily in her back and left leg for several years, she
also began to experience pain in her right leg in April and
May of 2010.

[Tr. 571—84].

The most recent MRI, conducted

in April 2010, showed that Plaintiff has a large extruded
disc

fragment

stenosis

and

radiculopathy.

at
a

L5

resulting

mechanism

[Tr. 567].

in

for

severe

at

central

least

a

canal

right

S1

There was also discogenic and

facet degeneration resulting in foraminal narrowing at L4-5
and L5-S1 that was greatest on the left at L5-S1 providing
a mechanism for a left L5 radiculopathy.
Plaintiff

visited

her

primary

[Tr. 567].

care

physician,

Dr.

Leigh Gaines, regularly over the course of 2003-2010 (Tr.
413—61; 499—509; 540—68].
Gaines

noted

that

As late as January 26, 2010, Dr.

Plaintiff

lower extremities.

had

[Tr. 500].

normal

strength

in

her

Dr. Gaines reported that

Plaintiff had positive straight leg raises several times
over the years, [Tr. 445, 543, 544, 443, 436], but also
reported several times that Plaintiff had negative straight
leg raises, including just months before her first hearing
on January 26, 2010.

[Tr. 500; 432; 434].

While Plaintiff

has experienced limitations in her range of motion, sensory
loss,

and

reflex

loss,

consistently reported.

these

limitations

have

not

been

[Tr. 387—88; 429; 432; 434; 500;
6

501; 503; 526; 579].

Further, no physician has ever opined

that Plaintiff suffers from muscle atrophy in her lower
extremities,

and

Plaintiff’s

counsel

does

not

suggest

otherwise.
Plaintiff

also

suffers

from

complained of them in 2006.
Dr.

Gaines

migraines

a

in

January

month.

[Tr. 423].

2010

[Tr.

migraines.

that

She

first

She reported to

she

has

one

to

two

She

reported

at

the

500].

hearing, also in 2010, that she has “three, four, five - four times a week, easy” lasting up to an entire day.
78].

She takes Maxalt for her migraine pain.

[Tr.

[Tr. 542].

Plaintiff received a consultative examination with Dr.
Phillip Swedberg on August 8, 2008.
examination,

Dr.

Swedberg

[Tr. 386—89].

concluded

that

Plaintiff

Upon
is

“capable of performing at least a mild to moderate amount
of

sitting,

pushing,

ambulating,

pulling,

[Tr. 388].

standing,

lifting,

and

bending,

carrying

heavy

kneeling,
objects.”

Further, he concluded that Plaintiff has “no

difficulty reaching, grasping, and handling objects,” has
“no visual and or communication limitations,” and had no
“environmental limitations.”
Dr.

Gaines

did

not

[Tr. 389].

complete

a

residual

functional

capacity assessment for Plaintiff, but she did provide a
letter for Plaintiff’s file on May 20, 2010, which stated
7

that Plaintiff’s medications have some “side effects that
would impair her daytime functioning on a job.”

[Tr. 569].

She also concluded that “Ms. Perry obviously suffers from
numerous

medical

problems

maintain employment.”

that

impair

[Tr. 569].

her

ability

to

Dr. Gaines never opined,

in the letter or upon the Court’s review of her medical
records,

that

Plaintiff

was

completely

incapable

of

working.
Finally,
that

Dr.

testified

Chukwuemeka
at

Ezike,

Plaintiff’s

the

October

medical
2010

expert

hearing,

concluded in his medical source statement that Plaintiff is
capable of lifting no more than twenty pounds occasionally
and ten pounds frequently, sitting, standing or walking for
about six hours each in an eight-hour workday, and is able
to balance, kneel, crouch, crawl, stoop, and climb ramps
and

stairs

occasionally,

ropes and scaffolds.

but

cannot

ever

climb

ladders,

[Tr. 598—99].

Plaintiff has had the same boyfriend for over twenty
years, who is also the father of her adolescent son.

She

reported that she goes to movies and goes out to eat with
her son [Tr. 295], is able to prepare small meals [Tr.
296],

goes

grocery

shopping

and

clothes

shopping

[297],

goes to church [Tr. 298], and has a good relationship with
her mother [Tr. 298].

In July 2009, Plaintiff told her
8

doctor

that

she

was

able

to

paint

generally do things around the house.

her

bathroom

[Tr. 503].

and

She also

told her doctor in 2007 that she attended all of her son’s
sporting

events

and

[Tr. 418; 305].

helped

her

mother,

who

had

cancer.

Plaintiff has smoked about a half of a

pack of cigarettes daily since at least 2003.

[Tr. 557].

She claimed in 2009 and at her hearing in 2010 that she is
trying to quit smoking.

[Tr. 501; 75].

IV. ANALYSIS
Plaintiff’s first argument on appeal is that the ALJ
erred by failing to conclude that Plaintiff’s impairments
meet

or

medically

equal

Listing

1.04(A),

musculoskeletal disorders of the spine.
404, subpt. B, app. 1, § 1.04(A) (2013).

which

involves

See 20 C.F.R. pt.
In order to show

that impairments meet a listing, a claimant “must satisfy
all of the criteria,” or establish that his impairments
medically equal a listed impairment.

Reynolds v. Comm’r of

Soc. Sec., 424 F. App’x 411, 414 (6th Cir. 2011); Rabbers
v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 653 (6th Cir.
2009) (citing 20 C.F.R. § 404.1525(c)).

The ALJ concluded

that Listing 1.04 was not met because, although Plaintiff
had sensory loss and positive straight leg tests, she did
not have them consistently; because he did not believe she
had

any

reflex

or

motor

loss;
9

and

because

all

of

the

medical sources advised that Plaintiff did not meet Listing
1.04(A).

[Tr. 17].

The Court agrees.

Listing 1.04(A) requires the following:
1.04 Disorders of the spine (e.g., herniated nucleus
pulposus, spinal arachnoiditis, spinal stenosis,
osteoarthritis, degenerative disc disease, facet
arthritis,
vertebral
fracture),
resulting
in
compromise of a nerve root (including the cauda
equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized
by neuro-anatomic distribution of pain, limitation of
motion of the spine, motor loss (atrophy with
associated
muscle
weakness
or
muscle
weakness)
accompanied by sensory or reflex loss and, if there
is involvement of the lower back, positive straightleg raising test (sitting and supine).
SOCIAL

SECURITY,

DISABILITY

EVALUATION

UNDER

SOCIAL

SECURITY,

http://www.ssa.gov/disability/professionals/bluebook/1.00Musculoskeletal-Adult.htm#1_04
2013).1

(last

visited

August

9,

Plaintiff does have a history of degenerative disc

disease, exhibited through her MRIs.

[Tr. 566, 367, 362].

Plaintiff’s April 2010 MRI also revealed that she has a
“mechanism
foraminal

for

at

narrowing

least
at

a

right

L4-5

S1

and

L5-SI

mechanism for a left L5 radiculpathy.”

radiculopathy”
that

provides

[Tr. 567].

and
“a
All

appear to be in agreement that this provides at least some
evidence of nerve root compression, characterized by pain.
1

In addition to nerve root compression, one can also meet
Listing 1.04(A) with evidence of spinal arachnoiditis or
lumbar spinal stenosis.
It appears undisputed that there
is no evidence of either of these disorders in the record.
10

Further,

although

straight

leg

Plaintiff

tests,

she

has

has

had

also

multiple

negative

several

positive

had

straight leg tests of the years [Tr. 445, 543, 544, 443,
436], has experienced decreased range of motion at times
[Tr. 542, 543]2, and has sometimes had sensory and reflex
loss [Tr. 509, 543, 579].
However, no physician has ever reported that Plaintiff
has suffered from motor loss, and it has been repeatedly
reported

that

Plaintiff

extremities.

has

good

[Tr. 414; 501; 509].

strength

in

her

lower

Thus, Plaintiff fails

to meet this element of Listing 1.04, a conclusion that
concords with Dr. Ezike’s expert opinion [Tr. 596], and is
not contradicted by any other medical findings, including
those

of

her

treating

physician.

Accordingly,

the

ALJ

committed no error by finding that Plaintiff fails to meet
Listing 1.04.
Second, Plaintiff argues that the ALJ erred by failing
to

explain

why

he

did

not

incorporate

Dr.

Ezike’s

modifications to his medical source statement that were,
according
testimony.

to

Plaintiff’s
Specifically,

counsel,
when

2

made

pressed

by

during

his

Plaintiff’s

Several of Plaintiff’s medical records also report that
she had good range of motion in her lower extremities on
the days that she was examined.
[Tr. 414, 415, 501, 503,
543].
11

counsel, Dr. Ezike testified that 1) there is no reason
that Plaintiff cannot sit about six hours in a total day,
which “would be about 20 minutes [standing] in an hour if
you calculate it” [Tr. 44]; 2) her current MRI would not
preclude Plaintiff from completing sedentary work [Tr. 42];
and

3)

it

is

possible

that

when

Plaintiff

goes

to

the

emergency room on a day that her pain is a ten on a zero to
ten pain scale, “she may have difficulty going to work.”
[Tr. 44].
Regarding Plaintiff’s first argument, the Court cannot
see how Dr. Ezike’s testimony at the hearing significantly
differs from his medical source statement.

Consistently

with his medical source statement, in which he noted that
Plaintiff “may need sit/stand option if she has back pain
exacerbation,” he testified at the hearing that she would
benefit from a job where she could sit or stand based off
of how much pain she is in on a particular day, since he
expects her symptoms to “wax and wane.”

[Tr. 43; 599].

When

the

Plaintiff’s

counsel

asked

Dr.

Ezike

amount

of

“total sitting” that Plaintiff would be able to do in a
day’s time, Dr. Ezike answered that there “is no reason why
she

cannot

sit

about

six

hours

in

a

day

total,”

consistent with his medical source statement.
599].

also

[Tr. 44,

When pressed further about an exact amount per hour
12

Plaintiff could sit, Dr. Ezike stated “[t]hat would be - that would be about 20 minutes (standing) an hour if you
calculate

it”

versus

forty

minutes

sitting.

[Tr.

44].

Upon the Court’s calculation this number is slightly off,
since sitting forty minutes every hour in an eight hour
workday only works out to sitting roughly five and onethird

hours.

However,

because

the

context

of

the

questioning indicates that this was only a rough estimate,
and because Dr. Ezike still maintained his opinion that she
could sit for six hours in a workday, the Court finds no
error

with

the

ALJ’s

refusal

to

adopt

this

exact

limitation.
Plaintiff’s second argument – that the ALJ erred by
not

adopting

limited

to

Dr.

Ezike’s

sedentary

work

opinion
given

that
the

Plaintiff

latest

MRI

may
–

be

also

fails, because the ALJ did incorporate this limitation into
his

analysis.

It

is

true

that

the

ALJ

stated

that

Plaintiff has an RFC such that she is capable of “light
work.”

[Tr.

vocational

17].

expert

However,
at

the

in

October

his

question

hearing,

he

to

the

clearly

incorporated Dr. Ezike’s limitation with regard to giving
Plaintiff an option to sit and stand into his hypothetical
question,
would

and

limit

the

vocational

Plaintiff

to

expert

told

him

sedentary

jobs

like

13

that

this

those

in

assembly,

clerking,

Accordingly,

in

the

and
ALJ’s

inspection.
opinion,

he

[Tr.
noted

that

83].
“the

claimant’s ability to perform all or substantially all of
the requirements of this level of work has been impeded by
additional limitations.”

[Tr. 20].

that

to

the

economy

jobs
would

available
be

the

He therefore stated

Plaintiff

sedentary

in

jobs

the

quoted

national
by

the

vocational expert, such as those in assembly, clerking and
inspection.

[Tr. 20].

Thus, because the ALJ essentially

incorporated Dr. Ezike’s opinion that Plaintiff would be
limited to sedentary work into his overall opinion, the
fact that he said that Plaintiff was capable of light work
in the RFC is, if anything, harmless error.3
Finally, Plaintiff takes issue with the fact that the
ALJ did not incorporate what she frames as an additional
limitation stated by Dr. Ezike at the hearing regarding
Plaintiff’s potential absences from work.

Specifically,

Plaintiff’s counsel asked Dr. Ezike if, since Plaintiff’s

3

To the extent that Plaintiff also contests the ALJ’s
failure to incorporate into the RFC that Plaintiff must
have a “sit/stand option,” the same analysis applies.
Although it is true that the ALJ did not state in the RFC
that Plaintiff must have a sit/stand option, he included
this fact in his hypothetical to the vocational expert, and
limited the job categories for available work options for
Plaintiff to those that only required sedentary work and
that would allow Plaintiff to sit or stand on an as-needed
basis.
14

symptoms would wax and wane, there would likely “be days
that her pain would be so severe, she would have trouble
making it to work.”

[Tr. 44].

Dr. Ezike responded that it

would be possible that if her pain was a ten on a zero to
ten

pain

scale

on

a

particular

day,

such

as

when

she

visited the emergency room, she may have difficulty going
to work.

[Tr. 44].

Plaintiff testified during the hearing

that although her pain can reach a ten, it is, on average,
a seven, with four to five bad days a week.

[Tr. 54—55].

What Plaintiff ignores when making this argument is
that the ALJ, as this Court concludes below, appropriately
discounted

Plaintiff’s

intensity,

persistence,

and

limiting

symptoms.

If

had

found

the

ALJ

credibility

with

regard
effects

credible

to

the

of

her

Plaintiff’s

testimony that she frequently experienced pain at a level
ten, then perhaps it would have been legal error for him
not to incorporate this opinion from the medical expert
into his opinion.

However, the adverse credibility finding

meant that the ALJ was relieved of his duty to incorporate
this medical opinion into his residual functional capacity
assessment, as the ALJ was not of the informed belief that
Plaintiff experiences this type of pain as often as she
claims.

The Court finds no error.

15

This leads to Plaintiff’s final argument, in which
she argues that the ALJ improperly discounted Plaintiff’s
credibility as to her statements regarding the intensity,
persistence, and limiting effects of her symptoms.

While

an ALJ must consider a plaintiff’s statements about her
pain

when

determining

“[d]iscounting
appropriate

whether

credibility

where

an

ALJ

to
finds

a

she

is

certain

contradictions

disabled,
degree

is

among

the

medical reports, claimant’s testimony, and other evidence.”
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir.
1997).

“Notably, an ALJ’s credibility determinations about

the claimant are to be given great weight, ‘particularly
since

the

ALJ

is

charged

demeanor and credibility.’”

with

observing

the

claimant’s

Cruse v. Comm’r. of Soc. Sec.,

502 F.3d 532, 542 (6th Cir. 2007) (citing Walters, 127 F.3d
at 531).

In this case, the ALJ’s reasons for discounting

Plaintiff’s
evidence

in

credibility
the

were

record;

supported

therefore,

by

substantial

deference

to

his

decision is appropriate.
First, the ALJ considered the fact that Plaintiff’s
testimony appeared to be exaggerated when compared to her
contemporaneous statements to physicians.
ALJ

pointed

out

that

although

Plaintiff

For example, the
stated

in

her

functional report that she had to lay on the couch most of
16

the time, and stated at her hearing that she has had “daily
pain” since 2002 [Tr. 62], she reported to her doctor that
she was fairly active in 2005, followed a fairly normal
routine in 2007, attended her teenage son’s sporting events
and helped her mother who had cancer in 2007, and could
function fairly well in 2009, demonstrated by her ability
to paint her bathroom and generally do things around her
house.

[Tr. 418, 429, 503].

although

Plaintiff

The ALJ also pointed out that

testified

that

she

had

been

falling

frequently for about ten years, she told Dr. Swedburg in
2008 that she had never fallen.

[Tr. 48, 386].

Plaintiff

also denied falling to her emergency room doctors in April
2010.

[Tr. 584].
In response, Plaintiff argues that the ALJ should not

have

relied

on

statements

that

she

made

to

physicians

during office visits, since “miscommunications can easily
occur.”

[D.E. 17 at 19].

Plaintiff also argues that the

ALJ took her statements from her 2008 Function Report out
of context.

Specifically, she takes issue with the fact

that the ALJ cited Plaintiff’s stated inability to walk to
the

restroom

by

herself,

and

concluded

that

this

contradicted her testimony that she cared for her mother
and attended her son’s sporting events.

[Tr. 18; 295].

Plaintiff points out that she only stated that she could
17

not

walk

without

assistance

to

the

menstrual cycle, not at all times.

bathroom
[Tr. 295].

during

her

Thus, she

contends that it is unfair that the ALJ used this fact
against her.
However,
claimant’s

an

own

ALJ

is

complaints

entitled
of

to

symptoms,”

consider

“the

and,

that

for

matter, “any other relevant information contained in the
record” when assessing a claimant’s credibility.

Rogers v.

Comm’r of Soc. Sec’y, 486 F.3d 234, 247 (6th Cir. 2007).
Thus, it is perfectly acceptable for the ALJ to consider
the

consistency

physicians
credibility.

and

between
her

what

Plaintiff

testimony

when

reported

to

assessing

her
her

Further, while it is true that Plaintiff did

state that she is only unable to walk by herself to the
restroom when she is on her menstrual cycle, she clearly
wrote in her statement the following: “Watch TV after get
my son off to school.

I lay on the couch with my feet up I

have to lay like that all the time on heat pad most time.
I haven’t slept in my bed in thirteen years.”

[Tr. 294].

The ALJ appropriately discounted Plaintiff’s credibility to
the extent that this statement is inconsistent with her
reported daily activities during this time period.

See

Walters, 127 F.3d at 532 (citing Crisp v. Sec’y of Health &
Human Servs., 790 F.2d 450, 453 (6th Cir. 1986)) (“An ALJ
18

may also consider household and social activities engaged
in by the claimant in evaluating a claimant’s assertions of
pain or ailments.”).
Plaintiff argues that her statements about her daily
activities

are

not

necessarily

inconsistent

with

her

statements that she is in a great deal of pain, since she
has

always

alleged

that

she

has

good

and

bad

days.

However, the mere fact that some medical evidence in the
record

“might”

irrelevant,

as

support
it

is

an

the

opposite

function

of

conclusion

is

this

to

Court

determine whether substantial evidence supported the ALJ’s
decision,

not

differently.

whether

the

case

could

have

been

decided

Bass v. McMahon, 499 F.3d 506, 509 (6th Cir.

2007) (quoting Foster v. Halter, 279 F.3d 348, 353 (6th
Cir. 2001)) (citations omitted) (“[W]e do not try the case
de novo, resolve conflicts in evidence, or decide questions
of credibility.

Instead, we consider the ALJ's decision

determinative

there

if

is

‘such

relevant

evidence

as

a

reasonable mind might accept’ as sufficient to support the
ALJ's conclusion.”).
The ALJ also noted that some of her testimony was “the
product

of

leading

and

suggestive

questions

from

her

representative, which indicates either a poor historian or
an

exaggeration

in

support

of
19

her

claim.”

[Tr.

18].

Because the Federal Rules of Evidence do not apply during
these hearings, Plaintiff argues that the ALJ should not
have considered this in his determination of whether her
testimony was credible.

However, the Court does not find

substantial error in this observation by the ALJ.
that

Plaintiff

was

unable

to

remember

The fact

several

facts

throughout questioning by both her attorney and the ALJ
does indeed indicate that she is either a poor historian or
that she is attempting to exaggerate her symptoms.

The ALJ

was not discrediting Plaintiff’s testimony because she was
being

led

Evidence,

by
as

her

counsel

counsel

against

suggests;

the

rather,

Federal

Rules

he

inferring

was

of

from the fact that Plaintiff was unable to remember several
significant

details

until

reminded

by

her

counsel

Plaintiff’s testimony was not entirely credible.

that

This is

an observation within his discretion.
In

his

opinion,

the

ALJ

also

noted

that

Plaintiff

“testified that her pain can reach as high as 10 on a scale
of 0-10 with 10 being the highest level.
that

magnitude

would

require

However, pain of

emergency

inpatient

hospitalization, and the file contains no such records.”
[Tr. 18].

The ALJ also concluded that there was “evidence

of non-compliance with treatment recommendations” since she
refused

to

be

treated

by

medical
20

school

residents

and

refused an offer of preventative medication for migraines.
[Tr. 18].
were

Plaintiff argues that both of these comments

inappropriate.

With

regard

to

the

pain

scale,

Plaintiff argues that because the pain scale is a “relative
scale,” rating yourself at a ten on such a scale may mean
something

differently

[D.E. 17 at 19].

entirely

to

two

different

people.

Thus, she argues that it is improper to

“narrowly define the ‘10’ on the pain scale as requiring
immediate inpatient treatment.”
the

non-compliance

argues

that

it

is

with

[D.E. 17 at 19].

treatment

“entirely

As for

recommendations,

reasonable

to

worry

she
about

having students perform surgery on one’s spine,” and that
while Plaintiff did not accept preventative medication for
migraines, she accepted other migraine medications to deal
with her pain.

[D.E. 17 at 21—22].

Thus, Plaintiff argues

that the ALJ should not discount Plaintiff’s credibility
for these actions.
Again, the Court notes that the issue of whether these
facts could have been viewed differently is not an issue
appropriately before this Court.

Bass, 499 F.3d at 509.

The only function of this Court is to assess whether or not
the

ALJ

followed

the

appropriate

legal

framework

when

making his decision, and whether his decision is supported
by substantial evidence.

Id. (“If the ALJ’s decision is
21

supported by substantial evidence, then reversal would not
be warranted even if substantial evidence would support the
opposite conclusion.” (citing Longworth v. Comm’r of Soc.
Sec., 402 F.3d 591, 595 (6th Cir. 2005))).

Regardless, an

ALJ is within his discretion to consider his belief as to
whether

Plaintiff’s

medical record.

testimony

is

inconsistent

with

the

Jones v. Comm’r of Soc. Sec., 336 F.3d

469, 476 (6th Cir. 2003) (“Nevertheless, an ALJ is not
required to accept a claimant’s subjective complaints and
may properly consider the credibility of a claimant when
making

a

determination

of

disability.”).

While

perhaps

framed a little speculatively, the ALJ’s determination that
the medical record does not reflect that Plaintiff’s pain
was constantly rated at a ten on a zero to ten pain scale
is a perfectly acceptable consideration.
Moreover, an ALJ is entitled to consider a claimant’s
refusal to engage in treatment options, particularly when
the

record

indicates

that

this

was

factor in his credibility assessment.

not

a

determinative

See Strong v. Soc.

Sec. Admin., 88 F. App’x 841, 846 (6th Cir. 2004) (“In the
ordinary course, when a claimant alleges pain so severe as
to be disabling, there is a reasonable expectation that the
claimant will seek examination or treatment.
do

so

may

cast

doubt

on

a
22

claimant’s

A failure to
assertions

of

disabling pain.” (citing Williams v. Bowen, 790 F.2d 713,
715 (8th Cir. 1986))).

The Court finds no error.

Plaintiff also presents various complaints concerning
other portions of the ALJ’s decision.
argues

that

the

ALJ

erred

when

For example, she

stating

that

Plaintiff

worked after her alleged onset date, and contends that the
ALJ

improperly

discounted

Plaintiff’s

credibility

for

providing an unsupported claim that medical services for
indigent persons are not available in her area.

The Court

agrees that Plaintiff’s medical record actually states that
she was on a leave of absence from work at Bob Evans, and,
thus, does not support a conclusion that she was working
after her alleged onset date.

[Tr. 557].

The Court also

agrees with Plaintiff that the ALJ should not have faulted
Plaintiff for not submitting documentation to support her
claim that she has no access to indigent medical services
given his failure to offer her an opportunity to submit
such documentation.

That being said, it is clear to the

Court that these two conclusions by the ALJ did not form
the

foundational

Plaintiff’s

basis

for

his

credibility.

The

decision
ALJ

to

gave

discount
numerous

explanations apart from these specific reasons as to why he
discounted her credibility.

[Tr. 18—19].

Even accepting

Plaintiff’s arguments in this regard, substantial evidence
23

still

supports

the

ALJ’s

decision.

Nothing

more

is

required.
Therefore, because the objective evidence in this case
did not establish that Plaintiff is disabled within the
meaning of the Social Security Act, and because substantial
evidence supports the ALJ’s decision, the Commissioner’s
decision is affirmed.
V. CONCLUSION
ACCORDINGLY, IT IS ORDERED:
(1)

that

Plaintiff’s

Motion

for

Summary

Judgment

Motion

for

Summary

Judgment

[D.E. 17] is DENIED; and
(2)

that

Defendant’s

[D.E. 18] is GRANTED.
This the 13th day of August, 2013.

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