Tipton v. SSA

Filing 14

MEMORANDUM OPINION & ORDER: 1. The decision of the Commissioner is supported by substantial evidence and is hereby AFFIRMED; 2. Plf's Motion for Summary Judgment (Doc. # 12 ) is hereby DENIED; 3. Dft's Motion for Summary Judgment (Doc. # 13 ) is hereby GRANTED; and 4. A separate Judgment affirming this matter will be entered contemporaneously herewith. Signed by Judge David L. Bunning on 10/25/2011.(RBB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 11-50-DLB
LORENE TIPTON

vs.

PLAINTIFF

MEMORANDUM OPINION & ORDER

MICHAEL J. ASTRUE, Commissioner
SOCIAL SECURITY ADMINISTRATION
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*

DEFENDANT
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*

*

This action was brought pursuant to 42 U.S.C. § 405(g)1 to obtain judicial review of
an administrative decision of the Commissioner of Social Security. The Court, having
reviewed the record and the parties’ dispositive motions, will affirm the Commissioner’s
decision, as it is supported by substantial evidence.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Lorene Tipton applied for a period of disability and disability insurance
benefits (DIB) on November 12, 2008. (Tr. 114-15). At the time of filing, Plaintiff was 52
years old and alleged a disability onset date of March 15, 2008. (Tr. 114). Plaintiff alleges
that she is unable to work due to heart problems, arthritis, vision problems and depression.
(Tr. 13). Her application was denied initially and again on reconsideration. (Tr. 67, 73).

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In her Complaint, Plaintiff states that the instant “action is brought pursuant to . . . 42 U.S.C. §
405(a) . . . to review the Final Decision of the Commissioner.” (Doc. # 2). However, it is subsection (g) that
provides an individual with a right of action to seek judicial review of a final decision by the Commissioner of
Social Security. 42 U.S.C. § 405(g). Subsection (a) grants to the Commissioner the “power and authority to
make rules and regulations and to establish procedures.” 42 U.S.C. § 405(a).

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At Plaintiff’s request, an administrative hearing was conducted on January 5, 2010. (Tr.
25-64). On February 9, 2010, Administrative Law Judge (ALJ) Robert C. King ruled that
Plaintiff was not disabled and therefore not entitled to DIB. (Tr. 11-20). This decision
became the final decision of the Commissioner when the Appeals Council denied Plaintiff’s
request for review on December 9, 2010. (Tr. 1-5).
On February 7, 2011, Plaintiff filed the instant action. (Doc. # 2). The matter has
culminated in cross-motions for summary judgment, which are now ripe for review. (Docs.
# 12, 13).
II. DISCUSSION
A.

Overview of the Process

Judicial review of the Commissioner’s decision is restricted to determining whether
it is supported by substantial evidence and was made pursuant to proper legal standards.
See Colvin v. Barnhart, 475 F.3d 727, 729 (6th Cir. 2007). “Substantial evidence” is
defined as “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).
Courts are not to conduct a de novo review, resolve conflicts in the evidence, or make
credibility determinations. Id. Rather, we are to affirm the Commissioner’s decision,
provided it is supported by substantial evidence, even if we might have decided the case
differently. Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999). If supported
by substantial evidence, the Commissioner’s findings must be affirmed, even if there is
evidence favoring Plaintiff’s side. Listenbee v. Sec’y of Health & Human Servs., 846 F.2d

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345, 349 (6th Cir. 1988). Similarly, an administrative decision is not subject to reversal
merely because substantial evidence would have supported the opposite conclusion.
Smith v. Chater, 99 F.3d 780, 781-82 (6th Cir. 1996).
The ALJ, in determining disability, conducts a five-step analysis. Step 1 considers
whether the claimant still performs substantial gainful activity; Step 2, whether any of the
claimant’s impairments, alone or in combination, are “severe”; Step 3, whether the
impairments meet or equal a listing in the Listing of Impairments; Step 4, whether the
claimant can still perform her past relevant work; and Step 5, whether a significant number
of other jobs exist in the national economy which the claimant can perform. As to the last
step, the burden of proof shifts from the claimant to the Commissioner to identify “jobs in
the economy that accommodate [Plaintiff’s] residual functional capacity.” See Jones v.
Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003); see also Preslar v. Sec’y of Health
& Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).
B.

The ALJ’s Determination

At Step 1, the ALJ found that Plaintiff has not engaged in substantial gainful activity
since the alleged onset date on March 15, 2008. (Tr. 13). At Step 2, the ALJ found that
Plaintiff had the following severe combinations of impairments:
single vessel coronary artery disease of the right coronary artery. . . ; obesity;
thyroid disease; degenerative cyst involving the navicular on the left . . . ;
mild osteoarthritis of both knees; mild osteoarthritis of the low back . . . ;
blepharitis, specific punctuate keratitis, dry eye syndrome, nuclear sclerosis,
cataract, myopia, presbyopia, and astigmatism, with a corrected visual acuity
of 20/20 in the right eye and 20/20-2 in the left eye; and depressive disorder.
(Id.). At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part
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404, Subpart P, Appendix 1. (Tr. 16).
At Step 4, the ALJ found that Plaintiff possessed the residual functional capacity
(RFC) to perform light work as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b). (Tr. 17).
Plaintiff is restricted from climbing ladders, ropes or scaffolds and from crawling, but can
only occasionally climb ramps and stairs, stoop, crouch and squat. (Id.). She can
frequently perform fingering and handling with her upper extremities and can occasionally
reach above shoulder level. (Id.). The ALJ found that Plaintiff has “mild difficulty in
maintaining sustained concentration and persistence in the completion of tasks in a normal
amount of time, but can do adequately and within the norms expected in the competitive
workplace, except for tasks that require intense concentration and extraordinary
persistence.” (Id.).

She is capable of understanding, remembering and carrying out

instructions consistent with her education level. (Id.). The ALJ further found that Plaintiff
can generally relate adequately to coworkers, supervisors, and the general public, however
she “cannot do work that requires her to frequently negotiate and persuade others, or to
frequently engage in the resolution of interpersonal conflicts.” (Id.). Based upon these
findings, the ALJ found that Plaintiff is able to perform her past relevant work as a deli
worker. (Tr. 19).
Although the ALJ found that Plaintiff is capable of performing her past relevant work
in Step 4, he continued to provide alternative findings for Step 5 of the sequential
evaluation process. (Tr. 19). At Step 5, the ALJ found that Plaintiff was born on June 11,
1955 and was 52 years old, which is defined as an individual “closely approaching
advanced age,” on the date the application was filed. (Id.). See 20 C.F.R. § 416.963. The

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ALJ also found that Plaintiff has at least a high school education and is able to
communicate in English. (Tr. 19). Considering the Plaintiff’s age, education, work
experience and residual functional capacity, the ALJ determined that a significant number
of jobs exist in the national economy that Plaintiff can perform. (Tr. 20). ALJ King
therefore concluded that Plaintiff has not been under a disability within the meaning of the
Social Security Act since Plaintiff’s alleged disability onset date of March 15, 2008 through
the date of the decision. (Id.).
C.

Analysis

Plaintiff raises several arguments on appeal. First, Plaintiff contends the ALJ failed
to give appropriate weight to the opinion of treating physician, Dr. Alexander Brown, M.D.,
and failed to give adequate reasoning for refusing to accept his opinion. Second, Plaintiff
argues that the ALJ did not consider the combined effects of her impairments. Third,
Plaintiff alleges the ALJ did not consider the durational requirement of substantial gainful
activity. Finally, Plaintiff alleges the ALJ erred in finding her impairments did not meet or
medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1. The Court will address each of these challenges in turn.2

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The final argument raised in the “Issues Presented” section of Plaintiff’s Motion for Summary
Judgment (Doc. # 12-1, at 1-2) asks “[w]hether a reasonable person could conclude and justify that plaintiff
is not disabled in light of the substantial limitations assigned by the treating physician, supported by
overwhelming evidence of a lifetime of such difficulties and the further evaluation of the consultative
physician.” (Doc. # 21-1, at 2). However, this question is never answered by Plaintiff, nor supported by any
citation or reference to the evidence of record. In fact, this issue is not even addressed beyond this
introductory query.
In failing to direct this Court’s attention to any support in the record, or even to make an affirmative
assertion, Plaintiff’s argument lacks the specificity required by this Court on appeal. Hollon ex rel. Hollon v.
Comm’r of Soc. Sec., 447 F.3d 477, 490-91 (6th Cir. 2006). When a plaintiff neglects to offer any
particularized argument to support her assertion, this Court will not devise arguments on plaintiff’s behalf, nor
will the Court engage in an “open-ended” review of the entire record to determine what evidence-if any–may
arguably be inconsistent with the decision of the ALJ. Id. at 491. Accordingly, such challenge “warrants little
discussion, as [Plaintiff] has made little effort to develop this argument . . . or to identify any specific aspects

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1.

The ALJ Did Not Improperly Reject the Opinion of Treating Physician,
Dr. Alexander Brown

Plaintiff argues that the ALJ failed to give deference to the opinion of treating
physician Dr. Brown. “Generally, the opinions of treating physicians are given substantial,
if not controlling, deference.” Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir.
2004) (citing 20 C.F.R. § 404.1527(d)(2)). However, treating physicians’ opinions are only
given such deference when supported by objective medical evidence and consistent with
other substantial evidence in the record. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,
544 (6th Cir. 2004); see C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). If the ALJ concludes
that either criterion is not satisfied, he applies the following factors in determining how
much weight to give a treating physician's opinion: the length of the treatment relationship
and the frequency of examination, the nature and extent of the treatment relationship,
supportability of the opinion, consistency of the opinion with the record as a whole, and the
specialization of the treating source . . . ." Wilson v. Comm’r of Soc. Sec., 378 F.3d at 544.
“‘The determination of disability is [ultimately] the prerogative of the [Commissioner], not
the treating physician.’” Warner, 375 F.3d at 390 (quoting Harris v. Heckler, 756 F.2d 431,
435 (6th Cir. 1985)). Accordingly, an ALJ may elect not to give controlling weight to a
treating physician’s opinion, as long as he provides “good reasons” for so doing. Wilson,
378 F.3d at 544; 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2).
In this case, the ALJ did not credit the opinion of Plaintiff’s rheumatologist, Dr.
Brown, though he acknowledged Dr. Brown’s status as a treating physician. (Tr. 18; see

of the Commissioner’s determination that lack support in the record.” Id. at 490-91. Consistent with Sixth
Circuit precedent, this Court will not conduct an “open-ended” review of the entire record in search of all
possible evidence that might arguably cut against the ALJ’s conclusions. Id.

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Tr. 354-55). Dr. Brown completed a form in which he opined that Plaintiff suffers from
moderate pain and is capable of lifting no more than five pounds. (Tr. 355). He also found
that Plaintiff could occasionally bend or reach above shoulder level, but never squat, crawl
or climb. (Id.). Furthermore, he found that Plaintiff could frequently manipulate both her
left and right hands. (Id.). He noted that Plaintiff required mild restriction from unprotected
height, moving machinery and marked changed in temperature and humidity. (Id.).
However, Dr. Brown stated that Plaintiff is not restricted from driving automobile equipment
or exposure to dust, fumes and gases. (Id.). Finally, Dr. Brown opined that Plaintiff
required a sit/stand option and would occasionally need to elevate her legs during an eight
hour day. (Id.). The ALJ found these restrictions to be inconsistent with “the objective
medical evidence of record . . . and the claimant’s relatively extensive activities of daily
living.” (Tr. 18).
First, the ALJ noted that Dr. Brown’s assessment was inconsistent with his own
treatment records of Plaintiff. (Tr. 18). The record establishes that Plaintiff began
treatment with Dr. Brown and his colleagues at the Arthritis Center of Lexington in
September 2008. (Tr. 217-229). Dr. Brown regularly saw Plaintiff for arthritis. (Tr. 217-29,
273-83, 354-61). He prescribed Ultram, to use as needed, and recommended Tylenol and
Glucosamine Chondroitin for her osteoarthritis. (Tr. 274, 357, 359). The record indicates
that Plaintiff was also taking Calcium and an additional Vitamin D supplement. (Tr. 220,
273). Dr. Brown’s physical examination of Plaintiff consistently reflected only some
tenderness in the knees and ankles with pretibial swelling and tibio-femoral crepitus,
though it was not noted to be excessive. (Tr. 18, 219, 273). The examinations by both Dr.

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Brown and his colleague Dr. Ahmed indicated no swelling, tenderness, deformities or
effusions and full range of motion in the remaining joints of Plaintiff’s lower extremities. (Tr.
219, 273). Upon examination, no evidence was found of inflammatory arthritis. (Tr. 223).
The treatment notes and lab tests indicated negative results for rheumatoid factor and antiCCP antibody. (Tr. 357, 361). Furthermore, Dr. Brown’s treatment notes for October 2008
state that Plaintiff “feels considerably better since the last visit,” as do notes for January
2009, which also indicate that Plaintiff rated the intensity/severity of her pain only a three
out of ten on a severity scale in which ten represents the worst pain. (Tr. 219, 273).
Moreover, Dr. Brown’s treatment notes do not assess any restrictions on Plaintiff’s
daily activities. The absence of physical restrictions from a treating physician constitutes
substantial evidence that an impairment is not disabling. Longworth v. Comm’r of Soc.
Sec., 402 F.3d 591, 596 (6th Cir. 2005) (quoting Maher v. Sec’y of Health & Human Servs.,
898 F.2d 1106, 1109 (6th Cir. 1989)). Dr. Brown’s physical RFC assessment fails to point
to any particular records in Plaintiff’s medical history to support his conclusions. The
regulations state that “[t]he more a medical source presents relevant evidence to support
an opinion, particularly medical signs and laboratory findings, the more weight we will give
that opinion. The better an explanation a source provides for an opinion, the more weight
we will give that opinion.” 20 C.F.R. §§ 404.1527(d)(3), 416.927(d)(3); see also White v.
Comm’r of Soc. Sec., 572 F.3d 272, 286 (6th Cir. 2009) (“Conclusory statements from
physicians are properly discounted by ALJs.”).
Additionally, the ALJ found that Dr. Brown’s assessment contradicts the weight of
the medical evidence of record. (Tr. 18). While the objective medical evidence clearly

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establishes that Plaintiff has had some recurrent pain and swelling related to her arthritis,
it fails to support the extreme physical restrictions assessed by Dr. Brown. In July 2008,
Plaintiff underwent aspiration and received a cortisone injection to her left knee by
orthopaedic surgeon, Dr. Jean Page. (Tr. 187). Plaintiff reported improvement to her
mobility and a decrease in discomfort and swelling, and declined a subsequent injection
in her right knee. (Tr. 185). The ALJ notes that x-rays taken of Plaintiff’s knees show only
minimal findings. (Tr. 18). The record contains treatment notes from Plaintiff’s family
physician, Dr. Neeraj Mahboob, M.D., from April 2008 through November 2009. (Tr. 18894, 243-68, 389-401). It was noted that Plaintiff did have some limited range of motion due
to bilateral feet and knee pain, but there were no signs of synovitis or any gross deformity.
(Tr. 18, 256). The examination notes from August and November of 2008 and November
2009 indicate that Plaintiff displayed good range of motion. (Tr. 250, 253).
Finally, the ALJ noted the consistency of Dr. Brown’s opinion with other record
evidence, specifically Plaintiff’s “relatively extensive activities of daily living.” (Tr. 18).
These activities are described in statements made by Plaintiff and corroborated by
statements from her daughter. (See Tr. 33-40, 142-46, 148-55). Plaintiff testified that she
is unable to work due to heart problems and arthritis. (Tr. 40). Plaintiff stated that her
arthritis makes it difficult to stand or walk for long periods of time. (Id.). She also
complains that the side effects of her heart medications require her to take daily naps,
ranging from thirty minutes to two hours. (Tr. 42). Despite her allegations of disabling
pain, the ALJ noted that Plaintiff’s admitted daily activities were not limited to the extent
one would expect given her complaints of disabling pain. Plaintiff testified that she drives
once a week, does many household chores including laundry and cleaning, cooks meals,
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is able to maintain her own personal grooming and spends time with her immediate and
extended family. (Tr. 16, 34-39; see 149-51). Additionally, she cares for her disabled
husband by preparing his clothes for him and keeping track of his medication. (Tr. 16, 3940). These activities are confirmed by the statement of Plaintiff’s daughter. (Tr. 148-55).
For all of these reasons, substantial evidence supports the ALJ’s determination to give little
weight to the opinion of Dr. Brown, and the ALJ gave good reasons for doing so.
2.

The ALJ Did Not Fail to Consider the Combined Effects of Plaintiff’s
Impairments

Plaintiff argues the ALJ failed to consider the combined effect of her impairments.
However, an examination of the ALJ’s decision refutes this argument. The Commissioner
must “consider the combined effect of all [the individual’s] impairments without regard to
whether any such impairment, if considered separately, would be of sufficient severity. If
[the Commissioner] find[s] a medically severe combination of impairments, the combined
impact of the impairments will be considered throughout the disability determination
process.” 20 C.F.R. §§ 404.1523; 416.923. ALJ King considered all of Plaintiff’s severe
impairments, and Plaintiff’s RFC reflects a consideration of their combined effects. (Tr. 1719). The ALJ individually addressed Plaintiff’s heart problems, musculoskeletal complaints,
arthritis, vision problems, and depression, referencing the medical records pertinent to
each condition discussed. (Id.). The ALJ’s “individual discussion of multiple impairments
does not imply that he failed to consider the effect of the impairments in combination.” Loy
v. Sec’y of Health & Human Servs., 901 F.2d 1306, 1310 (6th Cir. 1990) (quoting Gooch
v. Sec’y of Health & Human Servs., 833 F.2d 589, 592 (6th Cir. 1987)).

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Moreover, Plaintiff does not provide the Court with any rationale to support her
argument. Rather, Plaintiff relies on conclusory statements, telling the Court that “[i]t is
clear from the medical evidence within the records that Plaintiff is severely impaired from
his [sic] mental and physical difficulties.” (Doc. # 12-1, at 4). Despite this supposed
abundance of record evidence, Plaintiff only cites generally to the physical RFC
assessment completed by Dr. Brown and the treatment records of Cumberland River
Comprehensive Care Center. As explained above, the ALJ properly afforded no weight
to the opinion of Dr. Brown as it was inconsistent with his own treatment notes and the
other substantial medical evidence of record, as well as Plaintiff’s activities of daily living.
The office treatment records from Cumberland River Comprehensive Care Center support
the findings of the ALJ. Plaintiff fails to point to any specific portion of those treatment
records or articulate how that portion would provide any support to her allegation.
Furthermore, general citation to only two medical reports in a record that contains several
hundred pages of medical records hardly supports an argument that the ALJ did not
consider the combined effects of all Plaintiff’s impairments.
3.

The ALJ Properly Found That Plaintiff is Capable of Maintaining
Employment

Plaintiff contends that the ALJ erred by failing to consider the durational requirement
of substantial gainful activity. Plaintiff cites Gatliff v. Comm’r of Soc. Sec., 172 F.3d 690
(9th Cir. 1999) for the proposition that substantial gainful activity means more than merely
the ability to find a job and physically perform the same, but also requires the ability to hold
the job for a significant period of time. Id. at 694. While the ALJ did not cite to Gatliff, his
decision rejects Plaintiff’s contention that she cannot maintain a job. Implicit in the RFC
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assigned to Plaintiff by the ALJ is a finding that Plaintiff is capable of maintaining
employment. Moreover, the VE testified that Plaintiff is capable of performing her past
relevant work, and the ALJ found that jobs exist in significant number in the national
economy that Plaintiff could also perform. (Tr. 19-20, 55-62).
Plaintiff does not explain why an individual with her RFC would be unable to
maintain employment. Plaintiff simply states:
The Courts have imposed a durational requirement of substantial activity
[that] ... requires the ability to hold the job for a significant period of time. ...
This was not considered by the ALJ, nor were the numerous exertional and
non-exertional restrictions placed upon the Plaintiff due to her physical and
mental limitations. This is made clear in the medical reports herein.
(Doc. # 12-1, at 4-5). Despite Plaintiff’s contention that the medical reports make clear that
the ALJ failed to consider the durational requirement of substantial gainful activity, Plaintiff
fails to provide any citation to the record. Consequently, Plaintiff’s conclusory argument
is simply not supported by the record herein. Additionally, this Court “has considered
Gatliff on a number of occasions and repeatedly rejected any suggestion of a separate
durational requirement.” Bowman v. Astrue, No. 5:10-CV-75, 2010 WL 4053543, at *6
(E.D. Ky. Oct. 14, 2010) (unpublished decision) (citations omitted).
4.

Plaintiff Failed to Show That She Meets a Listing

Plaintiff also argues that the ALJ should have found her impairments severe enough
to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. However, Plaintiff fails to identify what listing(s) she believes her impairments
meet or medically equal. In failing to direct this Court’s attention to which listing(s) her
impairments allegedly meet or medically equal, Plaintiff’s argument lacks the specificity

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required on appeal. Hollon ex rel. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 491 (6th
Cir. 2006). When a plaintiff fails to offer any particularized argument to support her
assertion, this Court will not “formulate arguments on the Plaintiff’s behalf” or engage in an
“open-ended review of the entirety of the administrative record to determine ... whether it
might contain evidence that arguably is inconsistent with the Commissioner’s decision, and
... whether the Commissioner sufficiently accounted for this evidence.” Id. Rather, the
Court limits its consideration to the particular points that Plaintiff appears to raise in her
motion for summary judgment. See id.
Plaintiff asserts only that “the medical evidence is clear and it does indicate
evidence of intensity, frequency and duration so as to seriously interfere with Plaintiff’s
ability to function.” (Doc. # 12-1, at 4). Plaintiff then concludes that “[i]t is clear from the
record that Plaintiff should have been determined to meet the GRID due to his [sic] very
serious problems, both physical and emotional.” (Id.). Plaintiff cites only one opinion to
support this claim, stating that “[e]ven the Social Security examiner, Dr. Baggs, recognized
substantial problems with depression.” (Id.). Therefore, it appears that Plaintiff believes
the ALJ erred in finding that Plaintiff’s depression did not meet or medically equal the
necessary criteria under the Mental Disorder Listing at Section 12.04.
In his decision, the ALJ evaluated Plaintiff’s depression under Listing 12.04
(Affective Disorders), and concluded that Plaintiff’s condition does not cause any marked
limitation in daily living activities, social functioning, or concentration, persistence or pace,
and further, that it does not meet the necessary criteria under any other Mental Disorder
Listings at Section 12.00. (Tr. 16). The required level of severity for 12.04 disorders is met

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when both paragraphs “A” and “B” criteria are satisfied, or when both paragraphs “A” and
“C” criteria are satisfied. Therefore, if Plaintiff cannot meet either paragraph “B” or “C”
criteria, her depression disorder would not qualify under the 12.04 Listing. Paragraph “B”
requires at least two of the following: (1) marked restriction of activities of daily living; (2)
marked difficulties in maintaining social functioning; (3) marked difficulties in maintaining
concentration, persistence or pace; or (4) repeated episodes of decompensation, each of
extended duration. 20 C.F.R. Part 404, Subpart P, Appendix 1, 12.04. Paragraph “C”
requires a “[m]edically documented history of a chronic affective disorder of at least two
years’ duration that has caused more than a minimal limitation of ability to do basic work
activities, with symptoms or signs currently attenuated by medication or psychosocial
support,” in conjunction with one of the following:
(1) Repeated episodes of decompensation, each of extended duration; or (2)
A residual disease process that has resulted in such marginal adjustment
that even a minimal increase in mental demands or change in the
environment would be predicted to cause the individual to decompensate; or
(3) Current history of one or more years’ inability to function outside a highly
supportive living arrangement, with an indication of continued need for such
an arrangement. Id.
The ALJ found that Plaintiff did not meet or medically equal the paragraph “B”
criteria because her mental impairment imposes only a mild restriction in her ability to
maintain the activities of daily living and mild difficulties in her ability to maintain social
functioning and concentration, persistence or pace. Additionally, the ALJ found no
evidence of decompensation. (Tr. 17). Finally, he stated that the evidence does not
support the presence of paragraph “C” criteria. (Id.).
In support of her argument, Plaintiff cites to only one medical report in the record–
a 2009 report prepared by consultative examiner Dr. Timothy L. Baggs. (Tr. 292-302).
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Despite Plaintiff’s assertion, this report does not contradict the ALJ’s opinion that Plaintiff’s
mental impairment is not severe enough to meet or medically equal the criteria under
Listing 12.04. In fact, the ALJ finds that his assessment “is consistent with Dr. Baggs’
opinion that the claimant does not have any substantial restrictions relating to
psychological issues.” (Tr. 19). Dr. Baggs found that Plaintiff’s mental impairment (1) did
not affect her capacity to understand and remember simple instructions; (2) created only
mild difficulty in maintaining sustained concentration and persistence in the completion of
tasks; (3) did not affect her ability to relate appropriately with others in a workplace
environment or social setting; and (4) did not limit her ability to adapt and respond
effectively to pressures found in normal work settings beyond that of an average worker.
(Tr. 300-01). None of the restrictions assessed by Dr. Baggs satisfy the criteria of
paragraphs “B” or “C” under the Listing at 12.04. Furthermore, the ALJ’s findings and Dr.
Baggs’ opinion are both supported by the treatment records from Cumberland River
Comprehensive Care Center. (Tr. 19, 362-388).
Consequently, given the lack of objective medical evidence that would support
Plaintiff’s allegation that her impairments meet or medically equal a listing, the Court finds
the ALJ’s determination that Plaintiff’s impairments do not meet or medically equal a listed
impairment is supported by substantial evidence.
5.

Plaintiff Makes Additional Arguments Which are Never Developed and
Not Provided Any Support from the Record

Plaintiff asserts additional complaints that are not raised in the “Issues Presented”
section of her Motion for Summary Judgment and are never fully developed. (Doc. # 12-1,
at 1-2). Plaintiff claims that “hypotheticals must be reasonably based upon the substantial
15

evidence within the record, which the ALJ failed to do in this instant case.” (Doc. # 21-1,
at 4).

However, Plaintiff fails to articulate any specific portion or finding within a

hypothetical that she deems improper. Further, she provides no citation to the record
evidence in support of this claim.
The testimony of a Vocational Expert (VE) in response to a hypothetical question
will provide substantial evidence of a claimant’s RFC to perform work in the national
economy where the question posed accurately reflected the claimant’s physical and mental
impairments. Webb v. Comm’r of Soc. Sec., 368 F.3d 629, 633 (6th Cir. 2004) (though an
ALJ need not list a claimant’s medical conditions, the hypothetical should provide the
vocational expert with the ALJ’s assessment of what the claimant “can and cannot do”).
It is well established, however, that an ALJ need only include those restrictions which enjoy
support when assessed against the backdrop of the entire record of objective medical
evidence. The findings of the ALJ which have been specifically challenged by the Plaintiff
have already been shown to enjoy this level of support. Most notably, the Plaintiff fails to
direct the Court’s attention to any restriction that was improperly included or improperly
disregarded by the ALJ in forming the hypotheticals, and makes no reference to the record
to support this claim. Therefore, this assertion is insufficient to establish that the ALJ erred
in presenting the hypotheticals to the VE.
The Plaintiff additionally states that “the testimony of the Plaintiff is important” and
that it is her position that “the testimony of the plaintiff [was] ignored in this matter.” (Doc.
# 12-1, at 5). This assertion is supported only by the statement that “Plaintiff is aware of
her problems and the limitations which they cause her,” declaring that “[s]he testified
credibly of the problems from which she suffers, and the reports of the doctors substantiate
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her testimony.” (Id.). Credibility determinations are generally reserved for the ALJ and
should not be discarded lightly. Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir.
2003). Social Security Rule 96-7p requires the ALJ to explain his credibility determination
so that it is “sufficiently specific to make clear to the individual and to any subsequent
reviewers the weight the adjudicator gave to the individual’s statements and the reasons
for that weight.” Id. The ALJ affirmatively considered Plaintiff’s testimony, but did not find
her subjective complaints fully credible, concluding that they are inconsistent with the
objective medical evidence and the extent of her daily activities. (Tr. 18). Plaintiff fails to
indicate what portions of Plaintiff’s testimony were impermissibly disregarded by the ALJ,
or how the medical reports serve to substantiate her testimony. Rather, Plaintiff makes
only general and conclusory statements. The credibility findings of the ALJ are sufficiently
explained in his decision and are supported by substantial evidence. Accordingly, the
general and unsupported assertions of Plaintiff on this matter are insufficient to find that
the ALJ improperly disregarded Plaintiff’s testimony.
III. CONCLUSION
Therefore, for the reasons stated herein, the Court concludes that the ALJ’s RFC
determination and his finding that Plaintiff was not disabled for purposes of the Social
Security Act are supported by substantial evidence. Accordingly, for the reasons stated,
IT IS ORDERED as follows:
1.

The decision of the Commissioner is supported by substantial evidence and
is hereby AFFIRMED;

2.

Plaintiff’s Motion for Summary Judgment (Doc. # 12) is hereby DENIED;

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3.

Defendant’s Motion for Summary Judgment (Doc. # 13) is hereby
GRANTED; and

4.

A

separate

Judgment

affirming

contemporaneously herewith.
This 25th day of October, 2011.

G:\DATA\SocialSecurity\MOOs\London\6-11-50- Tipton MOO.wpd

18

this

matter

will

be

entered