Briscoe v. SSA

Filing 14

MEMORANDUM OPINION AND ORDER: (1) Pla's 10 Motion for Summary Judgment is DENIED. (2) Commissioner's 13 Motion for Summary Judgment is GRANTED. (3) Judgment in favor of the Dft shall be entered contemporaneously herewith. Signed by Judge Gregory F. VanTatenhove on July 6, 2017. (AWD) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON

RICHARD BRISCOE,

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Plaintiff,
V.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

Case No. 5:16-cv-00368-GFVT

MEMORANDUM
OPINION
&
ORDER

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Richard Briscoe seeks judicial review of an administrative decision of the Commissioner
of Social Security, which denied Briscoe’s application for a period of disability and disability
insurance benefits (DIB) under Title II of the Social Security Act. [R. 1.] Mr. Briscoe brings
this action pursuant to 42 U.S.C. § 1383(c)(3) and 42 U.S.C. § 405(g), alleging various errors on
the part of the ALJ considering the matter. The Court, having reviewed the record and for the
reasons set forth herein will DENY Mr. Briscoe’s Motion for Summary Judgment [R. 10] and
will GRANT the Commissioner’s [R. 13.]
I
A
Plaintiff Richard Briscoe filed a Title II application for a period of disability and
disability insurance benefits (“DIB”) alleging disability beginning March 4, 2013. [Transcript
(hereinafter, “Tr.”) 16.] Mr. Briscoe’s motion for summary judgment explains that Briscoe
suffers from, among other things, severe back pain, a cartilage tear in his right knee, disc
extrusion at L5-S1, left hip locking sensation and radiation of back pain to the leg and hip,

sporadic falling in part because his left leg “give[s] out,” and obesity. [R. 10-1 at 2-5.] Briscoe’s
claim for a period of disability and DIB was denied on August 5, 2013, and upon reconsideration
on October 14, 2013. [Tr. 16.] Briscoe then requested a hearing that was held in January 2015
before Administrative Law Judge Robert B. Bowling. [Id.] Following the hearing, the ALJ
issued a final decision denying Briscoe’s application for a period of disability and disability
insurance benefits. [Tr. 16-29.]
B
In evaluating a claim of disability, an ALJ conducts a five-step analysis. See 20 C.F.R.
404.1520. 1 First, if a claimant is performing a substantial gainful activity, he is not disabled. 20
C.F.R. § 404.1520(b). Second, if a claimant does not have any impairment or combination of
impairments which significantly limit his physical or mental ability to do basic work activities,
then he does not have a severe impairment and is not “disabled” as defined by the regulations.
20 C.F.R. § 404.1520(c). Third, if a claimant’s impairments meet or equal one of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is “disabled.” 20 C.F.R.
§404.1520(d). Before moving to the fourth step, the ALJ must use all the relevant evidence in
the record to determine the claimant’s residual functional capacity (RFC), which is an
assessment of one’s ability to perform certain physical and mental work activities on a sustained

1

The Sixth Circuit summarized this process in Jones v. Comm’r of Soc. Sec., 336 F.3d 469 (6th Cir. 2003):
To determine if a claimant is disabled within the meaning of the Act, the ALJ employs a five-step
inquiry defined in 20 C.F.R. § 404.1520. Through step four, the claimant bears the burden of
proving the existence and severity of limitations caused by her impairments and the fact that she is
precluded from performing her past relevant work, but at step five of the inquiry, which is the focus
of this case, the burden shifts to the Commissioner to identify a significant number of jobs in the
economy that accommodate the claimant’s residual functional capacity (determined at step four)
and vocational profile.

Id. at 474 (internal citations omitted).
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basis despite any impairment experienced by the individual. See 20 C.F.R. § 404.1520(e); 20
C.F.R. § 404.1545. Fourth, the ALJ must determine whether the clamant has the RFC to perform
the requirements of his past relevant work, and if a claimant’s impairments do not prevent him
from doing past relevant work, he is not “disabled.” 20 C.F.R. § 404.1520(e). Fifth, if a
claimant’s impairments (considering his RFC, age, education, and past work) prevent him from
doing other work that exists in the national economy, then he is “disabled.” § 404.1520(f).
At the outset of this case, the ALJ determined that Mr. Briscoe met the insured status
requirements of the Social Security Act through December 31, 2018. [Tr. 18.] Then, at step one,
the ALJ found Briscoe had not engaged in substantial gainful activity since March 4, 2013, the
alleged onset date. [Tr. 18.] The claimant did receive pay after the alleged onset date but these
earnings were for vacation pay and not for labor or services provided by Briscoe. [Id.] At step
two, the ALJ found that Briscoe suffered from severe impairments of “disorders of the spine and
joints and obesity.” [Tr. 18; see also 20 CFR 404.1520(c).] At step three, the ALJ determined
Briscoe’s combination of impairments did not meet or medically equal the severity of one of the
listed impairments in 20 CFR Part 404 Subpart P, Appendix 1. [Tr. 19.] Before moving onto
step four, the ALJ considered the entire record and determined Briscoe possessed the residual
functional capacity to perform light work as defined in 20 CFR 404.1567(b) with certain
physical and environmental limitations described as follows
[H]e can stand and walk for only two hours total in an eight hour workday; can sit
for only six hours total in an eight hour workday; would require a sit or stand
option on a 30 minute basis; can only occasionally push and pull with the bilateral
lower extremities; can only occasionally operate foot controls with the bilateral
lower extremities; can never climb ladders, ropes, or scaffolds; can only
occasionally climb ramps or stairs; can only occasionally stoop, kneel, crouch,
and craw; should avoid concentrated exposure to extreme colds, wetness, or
humidity; should avoid even moderate exposure to vibration; and should avoid all
exposure to the use of moving machinery and unprotected heights.

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[Tr. 20.]
After explaining how he determined Briscoe’s RFC [Tr. 20-27], the ALJ found at
step four that, based on this RFC, Briscoe is unable to perform any past relevant work.
[Tr. 27.] A vocational expert considered Mr. Briscoe’s RFC and the additional
environmental and postural limitations imposed by the ALJ, and testified that claimant
could perform “occupations at the sedentary level of exertion.” [Tr. 28.] The ALJ found
that jobs “exist in significant numbers in the national economy that the claimant can
perform” after the vocational expert identified qualifying jobs such as “production helper
. . . information clerk . . . and call-out operator.” [Id.] Accordingly, the ALJ concluded
that Mr. Briscoe is “not disabled” and that he had not been “under a disability, as defined
in the Social Security Act, from March 4, 2013, through the date of this decision.” [Tr.
29.] The Appeals Council denied Briscoe’s request for review of the ALJ’s unfavorable
decision. [Tr. 1] Briscoe now seeks judicial review in this Court.
C
The Court’s review is generally limited to whether there is substantial evidence in the
record to support the ALJ’s decision. 42 U.S.C. § 405(g); Wright v. Massanari, 321 F.3d 611,
614 (6th Cir. 2003); Shelman v. Heckler, 821 F.2d 316, 319-20 (6th Cir. 1987). “Substantial
evidence” is “more than a scintilla of evidence but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Cutlip v.
Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citing Richardson v. Perales,
402 U.S. 389, 401 (1971)). The substantial evidence standard “presupposes that there is a zone
of choice within which [administrative] decision makers can go either way, without interference

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by the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (quoting Baker v. Heckler,
730 F.2d 1147, 1150 (8th Cir. 1984)).
To determine whether substantial evidence exists, courts must examine the record as a
whole. Cutlip, 25 F.3d at 286 (citing Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 535
(6th Cir. 1981), cert. denied, 461 U.S. 957 (1983)). However, a reviewing court may not
conduct a de novo review, resolve conflicts in the evidence, or make credibility determinations.
Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012); see also Bradley v. Sec’y of
Health & Human Servs., 862 F.2d 1224, 1228 (6th Cir. 1988). Rather, if the Commissioner’s
decision is supported by substantial evidence, it must be affirmed even if the reviewing court
would decide the matter differently, and even if substantial evidence also supports the opposite
conclusion. See Ulman, 693 F.3d at 714; Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007);
Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).
II
A
The Court must first address Mr. Briscoe’s contention that the ALJ committed a
reversible error when he “failed at Step Two of the sequential evaluation to recognize Briscoe
meets or equals Listing 1.04A.” [R. 10 at 7.] Claimant argues that in addition to the
requirements found in Listing 1.04, the Administrative Law Judge was required by SSR 02-1p to
“take into account [Briscoe’s] obesity in combination with a lumbar impairment.” [R. 10 at 8.]
The Claimant believes that the ALJ rendered an unfavorable decision partially because Briscoe
“did not meet Listing 1.04 because there was no evidence of no nerve root compression,” but
“[t]his is a patently false statement.” [R. 9 at 13.]
At Step Three the ALJ is tasked with determining whether a claimant's impairments meet

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or equal one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §
404.1520(d). If the impairments do “meet or equal” one of those listed impairments, the
claimant is deemed “disabled.” Id. “For a claimant to show that his impairment matches a
listing, it must meet all of the specified medical criteria. An impairment that manifests only
some of those criteria, no matter how severely, does not qualify.” Malone v. Comm'r of Soc.
Sec., 507 Fed.Appx. 470, 472 (6th Cir.2012) (quoting Sullivan v. Zebley, 493 U.S. 521, 530
(1990)) (emphasis in original). For a claimant to demonstrate that his “impairment is the medical
equivalent of a listing,” he must demonstrate that the impairment is “at least equal in severity and
duration to the criteria of any listed impairment.” Reynolds v. Comm'r of Soc. Sec., 424
Fed.Appx. 411, 414–15 (6th Cir.2011) (citing 20 C.F.R. § 416.926(a); 20 C.F.R. § 404.1526(a)).
As the Sixth Circuit has explained, “[a]n administrative law judge must compare the medical
evidence with the requirements for listed impairments in considering whether the condition is
equivalent in severity to the medical findings for any Listed Impairment.” Id. Briscoe had the
burden of showing that his impairments were equal or equivalent to a listed impairment.
Malone, 507 Fed.Appx. at 472 (citing Foster v. Halter, 279 F.3d 348, 354 (6th Cir.2001). “To
meet that burden [Briscoe] was required to point to medical signs and laboratory findings that are
at least equal to a listed impairment in duration and severity.” Id.
Briscoe believes that he has met the requirements of Listing 1.04A. [See R. 10 at 10.]
Section 1.04A of the Listing states:
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
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with associated muscle weakness or muscle weakness) accompanied by
sensory or reflex loss and, if there is involvement of the lower back,
positive straight-leg raising test (sitting and supine).
20 C.F.R. pt. 404, subpt. P, app. 1, § 1.04. The ALJ found that “claimant does not have the
ambulatory deficits described in Sections 1.00(B)(2)(b) and 1.00(B)(2)(c), as required by
Sections 1.02(A) and 1.02(B)” and there was “no evidence of nerve root compression, spinal
arachnoiditis, or lumbar spinal stenosis resulting in pseudoclaudication, as required by Section
1.04.” [Tr. 19-20.] Importantly, and despite the Claimant’s allegations that the ALJ failed to
consider obesity in conjunction with the evidence of record, the ALJ specifically stated that he
had “also considered the claimant’s obesity in evaluating his impairment under this Section SSR
02-1p.” [Tr. 19-20.]
As stated above, “[f]or a claimant to show that his impairment matches a listing, it must
meet all of the specified medical criteria. An impairment that manifests only some of those
criteria, no matter how severely, does not qualify.” Malone v. Comm'r of Soc. Sec., 507
Fed.Appx. 470, 472 (6th Cir.2012) (quoting Sullivan v. Zebley, 493 U.S. 521, 530 (1990)).
While discussing Mr. Briscoe’s extensive medical history the ALJ did note that Claimant has
significant back pain that “radiates into his hips and legs.” [Tr. 21.] There was decreased range
of motion “in the thoracic and paraspinals bilaterally” due to thoracic muscle strain and “possible
torn muscles”. [Id.] But, following physical therapy, Briscoe was able to “return to work with
minimal pain.” [Tr. 21.] After reporting continued low back pain a June 2012 x-ray “of the
lumbar spine revealed normal results” but a subsequent MRI revealed “multilevel degenerative
changes.” [Tr. 22.]
In August 2012, Dr. Stephens performed a back surgery that was initially successful as
the claimant “reported that his symptoms had improved since the procedure” but back pain later

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returned. [Tr. 22.] Mr. Briscoe’s post-operative follow up showed “no difficulties in motor
strength.” Id. In fact, the medical record shows that Claimant did not have motor loss (atrophy
with muscle weakness) [R. 13 at 6, Tr. 309, 320, 347, 414, 501, 602, 647], claimant did not
display consistent sensory or reflex loss [R. 13 at 6], and Mr. Briscoe’s medical records failed to
indicate positive straight-leg raising tests in both the sitting and supine positions. [R. 13 at 6, Tr.
516, 614.] While the Court is highly sympathetic to the Mr. Briscoe’s medical issues, when the
objective medical evidence is applied to the standard elucidated in Malone v. Comm'r of Soc.
Sec., 507 Fed.Appx. 470, 472 (6th Cir.2012), Mr. Briscoe’s “impairment … manifests only some
of those criteria” in Section 1.04A of the Listing, therefore “no matter how severe[]” his
impairments, he “does not qualify.” Id.
The ALJ did make mistakes or misinterpretations of the medical evidence. For example,
the ALJ stated that “there is no evidence of nerve root compression,” but an MRI report from
April 29, 2014, found that disc protrusion at L4-5 did “impress[] upon nerve roots in the thecal
sac.” [Tr. 487-488.] Even so, the Court agrees with the Commissioner’s conclusion that this
error is harmless. While it is true that the ALJ misinterpreted some medical evidence, Claimant
has not been harmed by this error because the Claimant failed to meet the remaining section
1.04A criteria. [See R. 13 at 6 referencing Shinseki v. Sanders, 129 S. Ct. 1696, 1706
(2009)(“the burden of showing that an error is harmful normally falls upon the party attacking
the agency’s determination.”)] Specifically, the administrative record does not show “positive
straight-leg raising test (sitting and supine)” nor does the Claimant direct the court to evidence
showing a positive straight-leg test in both the sitting and supine positions. Rather, the
Claimant’s brief merely directs the court to positive straight leg test results without distinction as
to the claimant’s posture during these examinations. [See R. 10 at 9 (“Dr. Stephens noted

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positive Straight Leg Raising on the left. On December 1, 2014, after two separate back
surgeries, Amanda Dean noted positive Straight Leg Raising bilaterally.”]
Longstanding Sixth Circuit case law dictates that, when an ALJ’s decision is supported
by substantial evidence, “reversal would not be warranted even if substantial evidence would
support the opposite conclusion.” Bass, 499 F.3d at 509. Here, the ALJ’s findings take into
account Briscoe’s obesity and limitations and are supported by substantial evidence in the record.
Any possible error in misstating the nerve root compression is harmless in light of the evidence
that supports the ALJ’s conclusions and the claimant’s failure to meet all the requirements of
Listing 1.04A. See Ulman, 693 F.3d at 714. It is not this court’s responsibility to conduct a de
novo review, resolve conflicts in the evidence, or make credibility determinations, therefore the
Claimant’s motion for summary judgment will not be granted on these grounds. Ulman v.
Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012); see also Bradley v. Sec’y of Health &
Human Servs., 862 F.2d 1224, 1228 (6th Cir. 1988).
B
Next, Mr. Briscoe claims that the ALJ failed to examine the entire case record when
evaluating the claimant’s credibility and his stated limitations. [See R. 10 at 10.] Specifically,
Briscoe’s counsel directs the Court to a number of the ALJ’s statements in the administrative
opinion. First, the Claimant argues that the ALJ believed that Mr. “Briscoe ‘responded well to
treatment,’ despite evidence directly contradicting this statement.” [Id.] Briscoe also believes
that “no treating provider has [sic] found Briscoe has responded well to treatment.” [Id.] Finally,
Mr. Briscoe cites to a number of comments made by the ALJ that he feels are baseless, lack
support, and contradict the great weight of evidence in the record. [See R. 10 at 11-12.]
The ALJ evaluated Mr. Briscoe’s credibility during the proceedings and analyzed his

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subjective complaints. In addition the ALJ considered the entire record and medical evidence in
determining an appropriate RFC for Mr. Briscoe. [See Tr. 20-27.] ALJ Bowling found that
“claimant’s statements concerning his impairments and their impact on his ability to work [are]
inconsistent with his activity of daily living, the clinical findings, and the course of treatment,
and therefore are not entirely credible.” [Tr. 27.]
The Sixth Circuit’s standard for evaluating pain is based on the factors set forth in 20
C.F.R. § 416.929(c)(2). Under the regulations, a claimant’s “subjective allegations of disabling
symptoms, including pain, cannot alone support a finding of disability.” Duncan v. Sec’y of
Health and Human Servs., 801 F.2d 847, 852 (6th Cir. 1986) (citing 20 C.F.R. § 404.1529); see
also 42 U.S.C. §423(d)(5)(A) (“[a]n individual’s statement as to pain or other symptoms shall
not alone be conclusive evidence of disability. . .”). There must also be objective medical
evidence of an underlying condition supporting allegations of pain. Duncan, at 852. In Duncan,
the Sixth Circuit set out a two-part test for evaluating subjective complaints of pain:
First, we examine whether there is objective medical evidence of an underlying
medical condition. If there is, we then examine: (1) whether objective medical
evidence confirms the severity of the alleged pain arising from the condition; or (2)
whether the objectively established medical condition is of such a severity that it
can reasonably be expected to produce the alleged disabling pain.
801 F.2d at 853. Thus, the second part of the test requires one of two alternatives. If the
claimant establishes one of those requirements, the SSA regulations direct the ALJ to consider
various factors in evaluating the claimant’s subjective statements about the intensity and
persistence of pain or other symptoms. See 20 C.F.R. §§404.1529(a), (c)(2)-(3). Such factors
include: the claimant’s daily activities; location, duration, frequency, and intensity of pain;
precipitating and aggravating factors; type, dosage, effectiveness, and side effects of any
medication taken to alleviate the pain; treatment other than medication the claimant has received

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for pain; and any other measures the claimant uses to relieve the pain. Id.; see also Felisky v.
Bowen, 35 F.3d 1027, 1039-40 (6th Cir. 1994); SSR 96-7p, 1996 WL 374186, at *3.
However, even when the medical records confirm the requisite objective medical
condition supporting the claimant’s complaints, “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.” Jones, 336 F.3d 469, 475-76 (6th Cir. 2003) (citing Walters v.
Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1990)). When considering the Felisky factors
listed above, the Sixth Circuit has also recognized that “determinations of credibility related to
subjective complaints of pain rest with the ALJ and that the ALJ’s opportunity to observe the
demeanor of the claimant is invaluable and should not be discarded lightly.” Duncan, 801 F.2d
at 852; see also Walters, 127 F.3d at 531 (“In evaluating complaints of pain, . . . an ALJ’s
findings based on the credibility of the applicant are to be accorded great weight and deference,
particularly since an ALJ is charged with the duty of observing a witness’s demeanor and
credibility.”).
Here, ALJ Bowling considered a number of factors that suggested Briscoe’s impairments
were not as severe as alleged in a detailed seven-page description of the claimant’s medical
history. [Tr. 20-27.] Briscoe’s back pain began in 2012, increased in severity over time, and
required two surgeries for treatment. [Tr. 20-21.] Mr. Briscoe’s is allegedly substantially
limited by chronic lower back pain that radiates into his legs and knee and make it difficult for
prolonged concentration. [Tr. 21.] The pain limited his ability to bend, “lift over 5 to 10 pounds;
sit over 15 to 20 minutes; stand over 25 minutes; walk over 400 to 500 yards; stoop; kneel;
crouch; crawl; and reach up to shave his head.” [Tr. 21.] But, early medical intervention and
consultations with medical doctors from 2003 to 2008 displayed normal findings with “mild

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degenerative changes.” [Id.] By March 2012, Briscoe, a then 36 year old man, complained of
back pain following physical exertion. From this Doctors’ visit, the claimant was classified as
obese and his charts note a weight of 298 pounds. [Tr. 21.] Later hospital visits throughout
2012 hospital initially revealed normal results despite complaints of pain but, eventually, an MRI
showed “multilevel degenerative changes” and “disc extrusion at L5-S1.” [Tr. 22.]
Dr. Stephens performed a surgery on the claimant’s back and, at the post-op follow up,
“Mr. Briscoe reported that his symptoms had improved since the procedure.” [Tr. 22.]
Claimant’s counsel suggests that the ALJ improperly reported that Briscoe “responded well to
treatment,” but this brief improvement following back surgery is one example of Briscoe’s
positive response to surgical or medical intervention. [R. 10 at 11.] Five months post-op
Briscoe’s pain was “much improved when compared to the pre-op pain and [] he had returned to
full activity.” [Tr. 22.] But increasing pain and a subsequent surgery resulted in no
improvement, although x-ray testing “revealed no acute abnormalities and alignment was
normal.” [Id.] By July 2013, Briscoe continued attending pain management clinics for back and
knee pain, which was likely aggravated by his weight of 304 pounds. [Tr. 23.] Upon
consultation with Dr. Wright, the claimant’s medications were adjusted and “he was advised to
exercise as tolerated.” [Id.]
While the record does contain positive straight leg test results, in October 2013 the
claimant had “normal muscle tone and no atrophy was present in his lower extremities . . . and
straight leg raising test was negative.” [Tr. 23; see also Tr. 24 “Dr. Stephens noted in May
2014… [s]trength was 5/5 in all extremities and straight leg raising was negative.”] Mr. Briscoe
attended a significant number of appointments with doctors and pain management professionals,
many of which resulted in the prescription of pain medication as well as continued

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encouragement to exercise. [Tr. 23-24.] The ALJ specifically noted that Dr. Wright’s records
show that “according to patient medications are working well” but that Mr. Briscoe was still in
pain. [Tr. 24.]
At least two doctors agreed that Mr. Briscoe was no longer a candidate for surgical
intervention because “no specific nerve root was being compressed” therefore “the claimant was
advised to work on activity modification, which included weight loss and cessation of smoking.”
[Tr. 25.] During one visit to a family care facility in Harrodsburg, the claimant “revealed that he
was still trying to get disability as a result of his back and leg pain.” [Tr. 26.] Roughly in this
time period, around December 2014, Mr. Briscoe “displayed positive straight leg raising at 45
degrees” and noted increasing instances of falling due to leg weakness. [Tr. 26.]
ALJ Bowling determined that “claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely credible.” [Tr. 26.] This is
because the record “does not indicate that the claimant has strength deficits, circulatory
compromise, neurological deficits, muscle spasms, fasciculations, fibrillations, or muscle atrophy
or dystrophy, which is often associated with long-standing, severe or intense pain and physical
inactivity.” [Tr. 26.] The record indicates that Briscoe does not use assistive devices,
neurological exams were normal, and “musculoskeletal examination shows no swelling, no
effusion, and no deformities.” The ALJ also observed that the claimant states he is unable to
work but that Briscoe can “keep monthly doctors’ appointments; take care of his personal needs;
perform household chores, which includes cooking; and grocery shop on occasion.” Finally, the
ALJ noted that Briscoe had previously testified as to limitations that restrict sitting to 15-30
minutes but, Mr. Briscoe “told Dr. Ballard Wright that he was preparing to take his grandmother

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to a Christmas show in Cleveland” in a “two days up and two days back” driving trip. [Tr. 26;
R. 13 at 8-9.]
The Claimant also takes issue with “completely baseless” statements in the administrative
opinion. [R. 10 at 11.] Specifically, the Claimant directs the Court to the ALJ’s concluding
remarks where ALJ Bowling stated, “[i]n summary, it would seem that the claimant’s multiple
complaints are based on his reluctance to perform any additional activities rather than a cause for
his alleged restrictions. One’s preference or lack of motivation is no basis for disability.” [Tr.
26.] The Court agrees with the Commissioner’s belief that, in context, the statement is not meant
to generally disparage the claimant’s credibility but, rather, was written as a direct response to
the “Plaintiff’s allegation that he could not engage in activities, despite the fact that he was
actually engaging in those activities.” [R. 13 at 11.]
Ultimately, the ALJ has considerable discretion to analyze the claimant’s credibility and
weigh the evidence. See Jones, 336 F.3d 469, 475-76 (6th Cir. 2003) (finding that “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”) (citing Walters v. Comm’r
of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1990)). The ALJ’s ability to observe the claimant and
make credibility determinations related to subjective complaints of pain are “invaluable and
should not be discarded lightly.” Duncan, 801 F.2d at 852.
In evaluating Briscoe’s credibility, the ALJ considered many, if not all, of the requisite
factors and clearly explained his reasoning and the claimant’s inconsistent statements as well as
the contradictory medical evidence in the record. The regulations do not require a detailed, itemby-item discussion of each credibility factor discussed in Felisky v. Bowen, 35 F.3d 1027, and
although the ALJ should consider the factors, the ALJ need not engage in such an extensive

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analysis in every decision, especially where the medical record does not objectively support the
claimant’s allegations. Bowman v. Chater, 132 F.3d 32 (Table), 1997 WL 764419, at *4 (6th
Cir. Nov. 26, 1997) (per curiam) (finding the ALJ can fulfill the requirements for evaluating
claimant’s complaints of pain by considering most of the Felisky factors but need not apply each
one in every case). Ultimately, ALJ Bowling appropriately analyzed the record and Briscoe’s
testimony to determine the claimant’s credibility and what weight to give to Mr. Briscoe’s
subjective allegations of pain. The Claimant asserts that it was “reversible error for the ALJ to
so erroneously evaluate Briscoe’s credibility in direct contradiction to the great weight of the
evidence.” [R. 10 at 12.] But, after review by the Court, it is evident that ALJ Bowling’s
determination, that the subjective reports of symptoms were insufficient to establish the alleged
disability, was based upon substantial evidence in the record. [See Tr. 20-29.] Further, as
required by 20 C.F.R. § 404.1529(c)(4), the ALJ appropriately considered inconsistencies in the
evidence.
ALJ Bowling found that Mr. Briscoe has not been under a disability as defined by the
Social Security Act. [Tr. 29.] After a comprehensive review of the record, administrative
hearing, and medical documents, it is evident that the ALJ’s findings were reasonable and
supported by substantial evidence from the record. As stated above, the decision to uphold the
ALJ’s decision is made in light of this court’s duty to determine whether the Commissioner’s
decision is supported by substantial evidence. Seeing that it is not this court’s responsibility to
conduct a de novo review, resolve conflicts in the evidence, or make credibility determinations,
the ALJ’s decision should be upheld as his opinion was based upon a careful review of the
record and the opinion is supported by substantial evidence. Ulman v. Comm’r of Soc. Sec., 693

15

F.3d 709, 713 (6th Cir. 2012); see also Bradley v. Sec’y of Health & Human Servs., 862 F.2d
1224, 1228 (6th Cir. 1988).
III
Being otherwise sufficiently advised, the Court hereby ORDERS as follows:
1. Plaintiff Richard Briscoe’s Motion for Summary Judgment [R. 10] is
DENIED;
2. The Commissioner’s Motion for Summary Judgment [R. 13] is GRANTED; and
3. Judgment in favor of the Defendant shall be entered contemporaneously herewith.
This the 6th day of July, 2017.

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