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.
24
25
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