Followell v. SSA

Filing 12

MEMORANDUM OPINION & ORDER: It is ordered 1) 10 MOTION for Summary Judgment is DENIED. 2) 11 MOTION for Summary Judgment is GRANTED. Signed by Judge Joseph M. Hood on 3/31/2017.(SCD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON
GARY FOLLOWELL,

)
)
) Action No. 5:15-CV-00321-JMH
)
)
) MEMORANDUM OPINION AND ORDER
)
)
)
)
)

Plaintiff,
v.
NANCY J. BERRYHILL,
Acting Commissioner of
Social Security
Defendant.
**

**

**

**

**

This matter is before the Court on the parties’ cross-Motions
for Summary Judgment (DE 10, 11) on Plaintiff’s appeal of the
Commissioner’s denial of his application for disability insurance
benefits.1

The matter having been fully briefed by the parties is

now ripe for this Court’s review.
I.
In

determining

whether

an

individual

is

disabled,

an

Administrative Law Judge (“ALJ”) uses 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.
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.

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.

3. If an individual is not working and has a
severe impairment which “meets the duration
requirement and is listed in appendix 1 or
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 & Hum. Servs., 14 F.3d 1107, 1110 (6th
Cir. 1994)(citing 20 C.F.R. § 404.1520(1982)).
II.
In

October

2012,

Plaintiff

protectively

applied

for

disability insurance benefits pursuant to Title II of the Social
Security Act (Tr. 172-73). See 42 U.S.C. §§ 401-33.1 Plaintiff
pursued his claim to a de novo hearing before an administrative
law judge (ALJ) (Tr. 117-20, 122-24, 129-30), which the ALJ
convened in February 2014 (Tr. 42-97). On April 30, 2014, the ALJ
issued an unfavorable decision (Tr. 25-38). Plaintiff requested
review of the ALJ’s decision (Tr. 24, 241-45), which the Appeals

2

Council

denied

(Tr.

1-6),

making

the

ALJ’s

decision

the

Commissioner’s final decision for purposes of judicial review. See
20 C.F.R. § 422.210(a).
III.
Plaintiff was an individual closely approaching advanced age
on the date of the ALJ’s decision (Tr. 52, 172). He has a twelfth
grade education (Tr. 52, 216) and past work experience as a
material handler, color plate handler, and band saw operator (Tr.
92-93, 178-87, 191-99, 216). He alleged disability since April 30,
2012 (Tr. 172) due to arthritis and hypertension
(Tr. 214-15, 225-26, 230).
In May 2012, Plaintiff presented to Donald Hamner, M.D., with
complaints that included bilateral knee pain and pain with walking
(Tr. 253-54). Dr. Hamner diagnosed degenerative arthritis of his
knees and hypertension under adequate control (Tr. 255). In January
2013, Alex Guerrero, M.D., a state agency psychiatrist, reviewed
the evidence and said Plaintiff did not have a severe mental
impairment (Tr. 108-16).
In February 2013, Carlos Hernandez, M.D., a state agency
physician,

reviewed

the

evidence

and

assessed

limitations

consistent with medium work (Tr. 108-16). Two days later, Plaintiff
presented to Jeremy Tarter, M.D., with complaints that he continued
to struggle with both of his knees with increased debilitation and
compromised activities of daily living (Tr. 306). X-rays showed
3

that he had end stage medial compartment degenerative changes and
surprisingly quite a bit of patellofemoral degenerative changes
with osteophytes (bone spurs) and loss of clear space (Tr. 306).
Plaintiff underwent bilateral total knee replacement surgery on
April

8,

2013

and

was

discharged

three

days

later

with

prescriptions for narcotic medications (Tr. 258-70).
On April 15, 2013, Plaintiff told Lindsey Martin, PT, that
she had no significant complaints of pain, but tightness (Tr. 288).
Ms. Martin noted that Plaintiff tolerated initiation of therapy
exercises well (Tr. 288). Three days later, Plaintiff told Ms.
Martin that he felt “pretty good” and had no significant complaints
of pain, but muscle soreness (Tr. 287).2 Ms. Martin found that
Plaintiff was doing remarkably better with much improved leg
strength and endurance since his prior visit (Tr. 287). The
following

day,

Ms.

Martin

noted

that

Plaintiff

continued

to

tolerate therapy exercises well (Tr. 286).
On April 23, 2013, Plaintiff told Ms. Martin that he ambulated
some at home using a cane with his right hand (Tr. 285). Ms. Martin
found that Plaintiff tolerated therapy exercises (Tr. 285). She
said he required a cane for ambulating, but did very well (Tr.
285). On April 24, 2013, Plaintiff told Ms. Martin that he was
doing well and had a “big day” the prior day and did a lot of

2

Plaintiff made the same or similar statements later that month (Tr. 283-86)
and again in May 2013 (Tr. 281-82).

4

walking, which made him sore (Tr. 284). Ms. Martin noted that he
was very adamant about performing his home exercise program and
stretches, which “[was] reflected in his progress” (Tr. 284). Five
days later, Plaintiff reported that he had been very active over
the weekend and was “out walking quite a lot” (Tr. 283). Ms. Martin
noted that he continued to do very well with treatment, tolerated
increased therapy exercises, and ambulated with a cane, although
he was homebound and stayed by himself during the day (Tr. 283).
On May 1, 2013, Ms. Martin noted that Plaintiff tolerated
increased therapy exercises and demonstrated good balance and side
stepping (Tr. 282). The following day, he returned to Dr. Tarter,
reporting that he was doing well in all regards, had one more week
of home therapy, and used a cane outside of his house (Tr. 304).
Dr. Tarter found that both of his knees looked great, although he
lacked a little bit of extension on the left, and had a functional
gait (Tr. 304). Dr. Tarter said Plaintiff was “way ahead of the
game functionally,” a product of his diligence, and that it was
fine

if

he

stopped

physical

therapy

(Tr.

304).

He

refilled

Plaintiff’s Lortab and Ultram (narcotics) (Tr. 304).
On May 3, 2013, Plaintiff told Ms. Martin that he was very
pleased with his progress and was no longer taking prescription
pain medications (Tr. 281). Ms. Martin said that he continued to
do exceptionally well, tolerated initiation of therapy exercises,
and ambulated in his home with an assistive device (Tr. 281). Three
5

days later, Plaintiff told Ms. Martin that he felt okay, but was
“under the weather” and had inner ear problems, which affected his
balance and required him to use a cane (Tr. 280). Ms. Martin noted
that Plaintiff tolerated exercises using weight as resistance (Tr.
280).
On May 7, 2013, Plaintiff told Ms. Martin that he was doing
“pretty fair,” but still struggling with some inner ear issues
(Tr. 279). Ms. Martin noted that Plaintiff performed very well,
tolerating increased repetitions in all exercises and exhibiting
little to no limp ambulating with an assistive device (Tr. 279).
Two days later, Ms. Martin discharged Plaintiff from physical
therapy,

noting

he

met

all

of

his

goals

and

progressed

exceptionally well (Tr. 278).
In June 2013, Plaintiff returned to Dr. Tarter, reporting a
little bit of discomfort in his knees and that he was improving
steadily overall (Tr. 303). He said he had spasms at night (Tr.
303). Plaintiff said he was actually very active, having mowed,
worked on part of his farm, and used his weed eater the prior day
and walked about three to four miles per day in the course of his
normal life (Tr. 303). Dr. Tarter again found that his knees looked
good and he continued to do quite well (Tr. 303). Plaintiff said
he wanted to ride a bike (Tr. 303).
The following August, Plaintiff complained to Dr. Hamner of
depression and pain in his knees and elbow (Tr. 299). Dr. Hamner
6

found that Plaintiff had pain in his right knee with stairs,
although he was okay on level ground (Tr. 300). He diagnosed
osteoarthritis,

depression,

and

knee

pain

and

prescribed

medications, including Celexa (an antidepressant) (Tr. 300).
In September 2013, Plaintiff told Dr. Tarter that he was doing
very well and he had a little discomfort in his knees (Tr. 302).
Dr. Tarter found that Plaintiff did not have any effusion in either
knee (Tr. 302). He had excellent flexion, no laxity, and normal
motor functioning, although he had diminished sensation (Tr. 302).
Plaintiff complained of bilateral shoulder and thumb pain and right
elbow

arthritis

(Tr.

302).

Dr.

Tarter

said

Plaintiff’s

knee

function should improve (Tr. 302). He said that Plaintiff was
previously a manual laborer and did not think that he could return
to this position in any capacity no matter how well his knees
recovered (Tr. 302). He also said Plaintiff applied for disability,
which he thought this was reasonable given his conglomeration of
musculoskeletal difficulties, and prescribed Ultram (Tr. 302).
In

January

2014,

Plaintiff

returned

to

Dr.

Hamner

with

complaints of pain in his right elbow, left thumb, and knees (Tr.
309). Dr. Hamner found that he had right elbow tenderness and pain
in the base of the left thumb and adjusted his medications (Tr.
309). Dr. Hamner said Plaintiff’s prognosis for returning to active
employment was poor (Tr. 312). He said Plaintiff’s pain was
sufficiently

severe

to

interfere
7

with

his

attention

and

concentration frequently (Tr. 314). He said Plaintiff had a marked
limitation

on

his

ability

to

deal

with

normal

stresses

of

competitive employment such as working at a constant pace, working
appropriately with coworkers and supervisors, and not taking an
excessive number of breaks (Tr. 314). He said Plaintiff could only
sit and stand for 30 minutes each at one time and walk for 20
minutes at one time and sit, stand, and walk for less than two
hours each in an eight-hour workday (Tr. 315). He said that, in an
eight-hour workday, Plaintiff needed frequent periods of walking;
to lie down at will; to shift positions at will from sitting,
standing, or walking; to elevate his right leg at will; and to use
a cane while standing and walking (Tr. 316). He said Plaintiff
could frequently lift less than 10 pounds and infrequently lift 20
pounds (Tr. 316). He said Plaintiff could not use his right hand
for grasping, turning or twisting or either hand for reaching (Tr.
317). He said Plaintiff could not work at a regular job on a
sustained basis (i.e., eight hours per day, five days per week,
forty hours per week) (Tr. 317). He said Plaintiff had a reasonable
medical need to be absent from a full time work schedule on a
chronic basis, meaning more than two absences per month (Tr. 317),
and would miss work 70 percent of the time (Tr. 318).
In

October

2012,

Plaintiff

said

he

took

care

of

pets,

including dogs and chickens (Tr. 207). He said he had no problem
with his personal care (Tr. 207); prepared his own meals, including
8

sandwiches, once or twice a week; mowed the grass once a week on
a riding lawnmower for two hours (Tr. 208); went outside two or
three times per day; drove a car (Tr. 209); read and watched
television on a daily basis; and spent time with others once or
twice per week (Tr. 210). At the administrative hearing, he said
that he could drive a car (Tr. 53). He said that, on a typical
day, he sat around and watched old movies on television (Tr. 6869, 73). He said he could care for his personal needs, although he
needed his wife to help him with buttons and shoes (Tr. 69). He
said he used his phone to look at hunting web sites twice a week
for five minutes at a time (Tr. 75). He said he went to Gatlinburg,
Tennessee, in August 2013 for a one-week vacation where his wife
drove for about five hours with three stops of 15 to 20 minutes
each (Tr. 70-72). He said he drove to take his garbage to the
landfill twice a week (Tr. 72). He said he occasionally vacuumed
(Tr. 76). He said he could carry 30 pounds, but only with his left
hand (Tr. 77), and could only sit for 10 to 15 minutes without
standing (Tr. 79). He said his hand pain limited his ability to
work the most (Tr. 58-61, 64-65, 73). He said he had no grip
strength and could not hold anything (Tr. 58). He said he could
not bend his thumbs to the bases of his hands (Tr. 59-60). He rated
this pain as a seven or eight on a 10-point scale once or twice a
week for one to two days with heat and Tramadol reducing it to a
four (Tr. 60-61). He said he started using a cane after his surgery
9

(Tr. 61-62), which eased is knee pain, but he still had muscle
weakness on the right and sometimes fell (Tr. 63). He said he had
fallen three times since his surgery (Tr. 88). He said he had right
elbow pain for 10 years (Tr. 61). He said he was depressed (Tr.
65), which got worse by sitting in the house, but improved on
“pretty days” and with medications (Tr. 66). He said he could only
be around 10 people (Tr. 65).
The ALJ asked William Harpool, a vocational expert, to assume
a hypothetical individual of Plaintiff’s age, education and work
experience who could
perform a limited range of light exertional
work. That is to say, no lifting or carrying
more than 20 pounds occasionally, 10 pounds
frequently. No standing or walking for more
than six hours out of an eight-hour day and
for no more than 30 minutes at one time. No
sitting for more than six hours out of an
eight-hour day and for no more than an hour at
a time. Can do unlimited pushing or pulling up
to the exertional limitations. No more than
occasional balancing, stooping, or climbing of
ramps or stairs, but no kneeling, crouching,
crawling or climbing of ladders, ropes or
scaffolds. Such a person must use a cane for
walking on level surfaces but not for balance.
No work in areas of concentrated full body
vibration or using vibrating tools. No work in
areas of concentrated heat, cold or humidity,
wetness or dampness. No more than frequent
fine
fingering
or
gross
manipulation,
bilaterally. No more than simple, routine
work. No more than occasional interaction with
co-workers, supervisors or the general public
and no more than occasional changes in the
work place setting.

10

(Tr. 93-94). Mr. Harpool said that, while such a person could not
perform

his

past

work,

he

could

perform

the

jobs

of

final

inspector; automatic machine operator; and night watchman (Tr.
94).
The ALJ followed the five-step sequential evaluation set
forth in the agency’s regulations for determining disability. See
20 C.F.R. § 404.1520(a)(4). As relevant here, at step three, the
ALJ found that Plaintiff did not have an impairment or combination
of impairments that met or medically equaled the severity of one
of the listed impairments in 20 C.F.R. pt. 404, subpt. P, app. 1
(the Listings) (Tr. 31-33). The ALJ found that Plaintiff had the
residual functional capacity for a range of light work with
limitations as set forth in his hypothetical question to the
vocational expert, discussed above (Tr. 33-36). Proceeding to step
five, the ALJ found that Plaintiff was not disabled because he
could perform other work existing in significant numbers in the
national economy, including the jobs cited by the vocational expert
(Tr. 37-38).
IV.
When reviewing a decision made by the ALJ, the Court may not
“‘try the case de novo, resolve conflicts in evidence, or decide
questions of credibility.’” Ulman v. Comm’r of Soc. Sec., 693 F.3d
709, 713 (6th Cir. 2012) (quoting Bass v. McMahon, 499 F.3d 506,
509 (6th Cir. 2007).

“The ALJ’s findings are conclusive as long
11

as they are supported by substantial evidence.” 42 U.S.C. § 405(g);
Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001) (citations
omitted).

Substantial evidence “means such relevant evidence as

a reasonable mind might accept.” Foster, 279 F.3d at 353.
V.
As an initial matter, Plaintiff argues that the ALJ erred
because he did not find that Plaintiff had an impairment or
combination of impairments that met Listing § 1.02A (Pl.’s Br. at
2, 7-9). The agency’s regulations provide that a claimant is per
se disabled at step three of the sequential evaluation process if
he has an impairment or combination of impairments that meets or
medically equals all of the requirements of a Listing. See 20
C.F.R. § 404.1525; 20 C.F.R. pt. 404, subpt. P, app. 1. It is the
claimant’s burden to prove disability at this step. See Bowen v.
Yuckert, 482 U.S. 137, 146 n. 5 (1987); Her v. Comm’r of Soc. Sec.,
203 F.3d 388, 391 (6th Cir. 1999) (“the burden of proof lies with
the

claimant

at

steps

one

through

four

of

the

[sequential

evaluation process].”).
Listing § 1.02 provides for per se disability in relevant
part as follows:
1.02 Major dysfunction of a joint(s) due to
any cause): Characterized by gross anatomical
deformity (e.g., subluxation, contracture,
bony or fibrous ankylosis, instability) and
chronic joint pain and stiffness with signs of
limitation of motion or other abnormal motion
of the affected joint(s), and findings on
12

appropriate medically acceptable imaging of
joint space narrowing, bony destruction, or
ankylosis of the affected joint(s). With:
A. Involvement of one major peripheral weightbearing joint (i.e., hip, knee, or ankle),
resulting
in
inability
to
ambulate
effectively, as defined in 1.00B2b; . . . .
20 C.F.R. pt. 404, subpt. P, app. 1, § 1.02A.

“Inability to

ambulate effectively means an extreme limitation on the ability to
walk; . . . . [and] is defined generally as having insufficient
lower extremity functioning . . . to permit independent ambulation
without the use of a hand-held assistive device(s) that limits the
functioning of both upper extremities.” 20 C.F.R. pt. 404, subpt.
P, app. 1, § 1.00B2b(1).
“[F]or a claimant to show that his impairment matches a
Listing, it must meet all of the specified criteria. An impairment
that manifests only some of those criteria, no matter how severely,
does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990)
(emphasis in original).

The Court is not persuaded that Plaintiff

has shown that his impairment meets all of the specified criteria
for Listing § 1.02(A) and determines that the ALJ’s conclusion
that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled Listing § 1.02, inclusive
of subparagraphs A and B (Tr. 31-33)
evidence.

13

is supported by substantial

Plaintiff relies on his testimony that he must use a rail and
a cane or two canes to climb stairs (Tr. 81); that his orthopedic
surgeon, Dr. Tarter, documented Plaintiff’s persistent pain and
instability five (5) months after his bilateral knee replacements.
(R. 302); and that Dr. Hamner, his primary care physician, noted
in January 2014 that that Plaintiff suffered from poor sleep

due

to joint discomfort and continued to have pain in both knees
despite surgery (R. 308-309); and that Dr. Hamner opined that
Plaintiff required the use of a cane or other assistive device for
standing and walking and that his use of the cane demonstrated the
great pain which Plaintiff was experiencing. (R. 313-16).
Even so, this evidence does not demonstrate an “extreme
limitation on the ability to walk” in light of all of the evidence
in the record.

Evidence in the record tracks an impressive

recovery from knee surgery, which hardly suggests the type of
chronic pain or stiffness in his knees that would yield an extreme
limitation on his ability to walk – even when his need to use a
rail and his cane on stairs is considered. See (Tr. 258-70, 288
(explaining to physicial therapist, one week after bilateral knee
surgery in August 2013 that he had no significant complaints of
pain); Tr. 283-87 (same one month later); Tr. 281-82 (same in May
2013); Tr. 304 (orthopedic surgeon noted on May 2, 2013, that both
of Plaintiff’s knees looked great and that he lacked only a little
bit of extension on the left ); Tr. 303 (orthopedic surgeon noting
14

in June 2013, that Plaintiff had only a little bit of discomfort
in his knees and that he was improving steadily overall; Tr. 300
(general practitioner observed in August 2013 that Plaintiff had
pain in his right knee with stairs, but was okay on level ground;
Tr. 302 (Plaintiff reported to orthopedic surgeon in September
2013 that he was doing very well and had only a little discomfort
in his knees; surgeon found no effusion in either knee and observed
excellent flexion, no laxity, and normal motor functioning)).
Further, the ALJ relied on evidence in the record that
Plaintiff was quite active both before and after surgery, taking
care

of

himself

restriction

and

his

applicable

farm

in

in

daily

determining
living

when

the

level

deciding

of

that

Plaintiff did not meet Listing 12.04 due to mental impairment.

In

this instance, the same body of evidence supports the conclusion
that Plaintiff does not qualify under Listing 1.02(A) because it
reveals

an

active,

ambulatory

lifestyle,

notwithstanding

the

condition of Plaintiff’s knee pre-operatively or post-operatively.
See,

e.g.,

(Tr.

207

(prior

to

surgery

and

in

October

2012,

Plaintiff reported that he took care of pets, including dogs and
chickens and was engaged in personal care, including preparing his
own meals from time to time, mowing the lawn on a riding lawnmower,
going outside and driving a car); see also Tr. 285 (on April 23,
2013, several weeks after his surgery, physical therapist noted
that Plaintiff ambulated at home using a single cane with his right
15

hand which he required); Tr. 284 (Plaintiff told physical therapist
that he was doing well and had a “big day” the prior day and did
a lot of walking); Tr. 283 (in late April 2013, Plaintiff reported
to physical therapist that he had been very active over the weekend
and was “out walking quite a lot”); Tr. 282 (physical therapist
noted good balance and side stepping on May 1, 2013); Tr. 304
(orthopedic surgeon noted on May 2, 2013, that Plaintiff used a
cane outside of his house and had a functional gait), Tr. 281
(physical therapist noted on May 3, 2013, that Plaintiff ambulated
in his home with an assistive device); Tr. 280 (physical therapist
noted on May 6, 2013, that Plaintiff had to use a cane); Tr. 279
(physical therapist notes that Plaintiff exhibited little to no
limp when Plaintiff ambulated with an assistive device on May 7,
2013); Tr. 303 (Plaintiff reports mowing, working on part of his
farm, using his weed eater, and walking three to four miles in the
course of daily life in June 2013); Tr. 53 (testifying that he
could drive a car; Tr. 69 (testifying that he could care for his
personal needs; Tr. 70-72 (testifying that he went to Gatlinburg,
Tennessee, in August 2013 for a one-week vacation where his wife
drove for about five hours with three stops of 15 to 20 minutes
each); Tr. 72 (testifying that he drove to take his garbage to the
landfill twice a week); Tr. 76 (testifying that he occasionally
vacuumed)).

The ALJ’s decision that Plaintiff did not have an

impairment or combination of impairments that met or medically
16

equaled the severity of Listing 1.02(A) is supported by substantial
evidence of record.
Next, Plaintiff argues that the ALJ erred by not reasonably
considering the opinion of Dr. Hamner that Plaintiff’s prognosis
for

returning

to

active

employment

was

poor

(Tr.

312)

in

determining his residual functional capacity (Pl.’s Br. at 2, 913). Residual functional capacity “is an administrative assessment
of the extent to which an individual’s medically determinable
impairment(s), including any related symptoms, such as pain, may
cause physical or mental limitations that may affect his or her
ability to do work related physical or mental activities.” Social
Security Ruling (SSR) 96-8p, 1996 WL 374184, at *2. It is the most
a person can do, despite his limitations. See id. The ALJ bears
the responsibility for assessing a claimant’s residual functional
capacity. See 20 C.F.R. §§ 404.1545, 404.1546(c); Warner v. Comm’r
of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (“The determination
of disability is ultimately the prerogative of the Commissioner,
not the treating physician.” (quotation and brackets omitted)).
The ALJ must decide what weight, if any, to give to the
medical opinions of record. “Medical opinions” are defined as
“statements from physicians and psychologists or other acceptable
medical

sources

severity
diagnosis,

of

that

your

and

reflect

judgments

impairment(s),

prognosis,

what
17

about

including
you

can

the

nature

your

still

and

symptoms,
do

despite

impairment(s), and your physical and mental restrictions.” 20
C.F.R. § 404.1527(a)(2). Some “medical opinions” are entitled to
“controlling weight.” See id. § 404.1527(c)(2). To be eligible for
controlling weight, the opinion must be a medical opinion and must
also (1) come from a treating source, i.e., an acceptable medical
source

“who

provides

you,

or

has

provided

you

with

medical

treatment or evaluation and who has, or has had, an ongoing
treatment relationship with you,” id. § 404.1502; (2) be “wellsupported

by

medically

acceptable

clinical

and

laboratory

diagnostic techniques”; and (3) be “not inconsistent” with the
other substantial evidence in the case record. SSR 96-2p, 1996 WL
374188, at *2. If no opinion is entitled to controlling weight,
the agency considers several factors in deciding how much weight
to give to an opinion, including the nature of the medical source’s
relationship

with

the

claimant,

supportability,

consistency,

specialization, and any other factors that tend to support or
contradict

the

opinion.

See

20

C.F.R.

§§

404.1527(c)(1)-(6).

Generally, an ALJ should give the opinions of a treating physician
controlling weight, but may discount the opinion if he provides
good reasons supported by substantial evidence. See Wilson v.
Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).
When Dr. Hamner opined that Plaintiff prognosis for returning
to active employment was poor (Tr. 312), he was not offering a
medical opinion but was offering an opinion on an administrative
18

finding reserved to the Commissioner (Tr. 36). See 20 C.F.R. §
404.1527(d)(1)-(3)

(stating

that

opinions

on

some

issues,

including whether a claimant is “disabled” or “unable to work” are
not medical opinions, but opinions reserved to the Commissioner
because they are administrative findings that are dispositive of
a case, i.e., that would direct the determination or decision of
disability); Bass v. McMahon, 499 F.3d 506, 511-12 (6th Cir. 2007)
(the ALJ properly rejected a treating physician’s “conclusion of
disabling

back

pain,”

where

“controlling

weight

will

not

be

provided to a treating physician’s opinion on an issue reserved to
the Commissioner, and where this opinion was inconsistent with the
treating physician’s own statements on other occasions and with
the opinions of other evaluators).
The ALJ observed that Dr. Hamner’s concerns about Plaintiff’s
potential to return to work ignored the positive results that
Plaintiff experienced following his knee surgery (Tr. 36, 278-79,
281-88, 302-04). An ALJ can discount the opinion of a treating
source where it is inconsistent with the record as a whole. See 20
C.F.R. § 404.1527(c)(4) (stating an ALJ must consider whether an
opinion is consistent with the record as a whole); Norris v. Comm’r
of Soc. Sec., 461 F. App’x 433, 439 (6th Cir. 2012) (unpublished)
(“Any record opinion, even that of a treating source, may be
rejected by the ALJ when the source’s opinion is not well supported
by medical diagnostics or is inconsistent with the record.”). Thus,
19

the Court concludes that the ALJ reasonably assigned only “little
weight” to the opinion of Dr. Hamner (Tr. 36) and articulated good
reasons,

supported

by

substantial

evidence,

for

doing

so.

Ultimately, the ALJ assigned an RFC far more limited than proposed
state agency medical consultant Carlos X. Hernandez, M.D., who
opined that Plaintiff could perform a limited range of medium
exertional work. (Id.) The ALJ felt that Plaintiff needed an even
more restrictive RFC which provided for changing positions more
frequently

(which,

interestingly

enough,

tracks

Dr.

Hamner’s

suggestion that Plaintiff would need to change positions every
half hour or so, although it does not adopt his opinion that
Plaintiff could not sit, stand, or walk for more than two hours in
an eight hour workday), and, thus, crafted an RFC which included
that, as well, for a limited range of light work.
36.)

(Id. at 33,

This is both legally appropriate, considering the errand

reserved to the ALJ, and supported by substantial evidence of
record based on the observations and opinions of the various
positions, assigned weight based on their opinions support in the
record, and Plaintiff’s own testimony.

This is not error, as

Plaintiff suggests, and the decision of the ALJ and, thus, the
Acting Commissioner will be affirmed.
Accordingly, for all of the reasons set forth above, IT IS
ORDERED:

20

1)

that Plaintiff’s Motion for Summary Judgment (DE 10) is

DENIED; and
2)

that Defendant’s Motion for Summary Judgment (DE 11) is

GRANTED.
This the 31st day of March, 2017.

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