Shirley v. Commissioner of Social Security

Filing 19

MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 10/25/2013; For the foregoing reasons, IT IS HEREBY ORDERED that the final decision of the Commissioner is AFFIRMED, pursuant to 42 U.S.C. § 405(g). This is a final and appealable Order and there is no just cause for delay. cc: Counsel (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:13CV-00038-JHM

EVELYN M. SHIRLEY

PLAINTIFF

VS.

CAROLYN W. COLVIN, Acting
Commissioner of Social Security

DEFENDANT

MEMORANDUM OPINION
AND ORDER
BACKGROUND
Before the Court is the complaint (DN 1) of Evelyn M. Shirley (“Plaintiff”) seeking judicial
review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the Plaintiff
(DN 15) and Defendant (DN 18) have filed a Fact and Law Summary.
Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties have consented to the
undersigned United States Magistrate Judge conducting all further proceedings in this case,
including issuance of a memorandum opinion and entry of judgment, with direct review by the Sixth
Circuit Court of Appeals in the event an appeal is filed (DN 13). By Order entered June 14, 2013
(DN 14), the parties were notified that oral arguments would not be held unless a written request
therefor was filed and granted.

FINDINGS OF FACT
Plaintiff filed applications for Disability Insurance benefits and Supplemental Security
Income payments on December 20, 2011 (Tr. 11, 200-206, 207-213). Plaintiff alleged that she
became disabled on July 1, 2010 as a result of bipolar disorder, suicidal ideation, history of suicide
attempts, high blood pressure, and intermittent back problems (Tr. 11, 200-206, 207-213, 306).
These claims were denied initially on March 6, 2012, and upon reconsideration on May 8, 2012 (Tr.
11). Plaintiff filed a request for a hearing and, thereafter, Administrative Law Judge D. Lyndell
Pickett (“ALJ”) conducted a hearing on July 11, 2012 in Louisville, Kentucky (Tr. 11). Plaintiff was
present and represented by Trevor A. Smith, an attorney (Tr. 11). Also present and testifying was
William R. Irvin, an impartial vocational expert (Tr. 11).
In a decision dated August 7, 2012, the ALJ evaluated this adult disability claim pursuant
to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 11-22). At the
first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since July 1, 2010,
the alleged onset date (Tr. 13). At the second step, the ALJ determined that Plaintiff’s cervical
radiculopathy, obesity, bipolar disorder, obsessive-compulsive disorder, and polysubstance abuse
in full sustained remission are “severe” impairments within the meaning of the regulations (Tr. 14).
Also, at the second step, the ALJ observed that Plaintiff has some history of hypertension; however,
he did not find hypertension to be a severe impairment (Tr. 14). At the third step, the ALJ
concluded that Plaintiff does not have an impairment or combination of impairments that meets or
medically equals one of the listed impairments in Appendix 1 (Tr. 14).
At the fourth step, the ALJ found Plaintiff has the residual functional capacity to perform
medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except she may never climb

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ladders, ropes or scaffolds; frequently, but not constantly, balance, stoop, kneel, and crouch; and
must avoid all exposure to hazards like dangerous machinery and unprotected heights (Tr. 15).
Additionally, the ALJ found that Plaintiff has the mental residual functional capacity to perform
routine, repetitive, unskilled and low stress work, which requires no strict production quotas (Tr.
15). Lastly, the ALJ determined that Plaintiff may have no contact with the public and only
occasional contact with supervisors and coworkers in a task-oriented environment (Tr. 15). Relying
on testimony from the vocational expert, the ALJ found that Plaintiff is unable to perform her past
relevant work as a fast wood worker, factory clothes dryer, laundry worker, and daycare worker (Tr.
20).
The ALJ proceeded to the fifth step where he considered Plaintiff’s residual functional
capacity, age, education, and past work experience as well as testimony from the vocational expert
(Tr. 21). The ALJ found that Plaintiff is capable of performing a significant number of jobs that
exist in significant numbers in the national economy (Tr. 21). Therefore, the ALJ concluded that
Plaintiff has not been under a “disability,” as defined in the Social Security Act, from July 1, 2010,
through August 7, 2012, the date of the ALJ’s decision (Tr. 21-22).
Plaintiff timely filed a request for the Appeals Council to review the ALJ’s decision (Tr. 33).
The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision (Tr. 1-3).

CONCLUSIONS OF LAW
The Social Security Act authorizes payment of Disability Insurance Benefits and
Supplemental Security Income to persons with disabilities. 42 U.S.C. §§ 401 et seq. (Title II

3

Disability Insurance Benefits), 1381 et seq. (Title XVI Supplemental Security Income). The term
“disability” is defined as an
“[i]nability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than twelve (12) months.”
42 U.S.C. §§ 423(d)(1)(A) (Title II), 1382c(a)(3)(A) (Title XVI); 20 C.F.R. §§ 404.1505(a),
416.905(a); Barnhart v. Walton, 535 U.S. 212, 214 (2002); Abbott v. Sullivan, 905 F.2d 918, 923
(6th Cir. 1990).
The Commissioner has promulgated regulations setting forth a five-step sequential
evaluation process for evaluating a disability claim. See “Evaluation of disability in general,” 20
C.F.R. §§ 404.1520, 416.920. In summary, the evaluation proceeds as follows:
(1)

Is the claimant engaged in substantial gainful activity?

(2)

Does the claimant have a medically determinable impairment
or combination of impairments that satisfies the duration
requirement and significantly limits his or her ability to do
basic work activities?

(3)

Does the claimant have an impairment that meets or
medically equals the criteria of a listed impairment within
Appendix 1?

(4)

Does the claimant have the residual functional capacity to
return to his or her past relevant work?

(5)

Does the claimant’s residual functional capacity, age,
education, and past work experience allow him or her to
perform a significant number of jobs in the national
economy?

Here, the ALJ denied Plaintiff’s claim at the fifth step.

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As previously mentioned, the Appeals Council denied Plaintiff’s request for review of the
ALJ’s decision (Tr. 1-3). At that point, the ALJ’s decision became the final decision of the
Commissioner. 20 C.F.R. §§ 404.955(b), 404.981, 422.210(a); see 42 U.S.C. § 405(h) (finality of
the Commissioner’s decision).
Review by the Court is limited to determining whether the findings set forth in the final
decision of the Commissioner are supported by “substantial evidence,” 42 U.S.C § 405(g); Cotton
v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993); Wyatt v. Sec’y of Health and Human Servs., 974 F.2d
680, 683 (6th Cir. 1992), and whether the correct legal standards were applied. Landsaw v. Sec’y
of Health and Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). “Substantial evidence exists when
a reasonable mind could accept the evidence as adequate to support the challenged conclusion, even
if that evidence could support a decision the other way.” Cotton, 2 F.3d at 695 (quoting Casey v.
Sec’y of Health and Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993)). In reviewing a case for
substantial evidence, the Court “may not try the case de novo, nor resolve conflicts in evidence, nor
decide questions of credibility.” Cohen v. Sec’y of Health and Human Servs., 964 F.2d 524, 528
(6th Cir. 1992) (quoting Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984)).
Plaintiff challenges the ALJ’s Finding No. 5, which addresses the fourth step in the five-step
sequential evaluation process promulgated by the Commissioner (DN 15, Plaintiff’s Fact and Law
Summary at Pages 2-11).1 Here, the ALJ found that Plaintiff has the residual functional capacity

At the fourth step of the sequential evaluation process, the Administrative Law Judge
makes findings regarding the claimant’s residual functional capacity, the physical and mental
demands of the claimant’s past relevant work, and the claimant’s ability to return to the past
relevant work. See 20 C.F.R. § 416.920(e). The residual functional capacity finding is the
Administrative Law Judge’s ultimate determination of what a claimant can still do despite his or
her physical and mental limitations. 20 C.F.R. §§ 416.945(a), 416.946. This finding is based on
a consideration of medical source statements and all other evidence in the case record. 20 C.F.R.
1

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to perform medium work2, except she may never climb ladders, ropes or scaffolds; frequently, but
not constantly, balance, stoop, kneel, and crouch; and must avoid all exposure to hazards like
dangerous machinery and unprotected heights (Tr. 15). Additionally, the ALJ found that Plaintiff
has the mental residual functional capacity to perform routine, repetitive, unskilled and low stress
work, which requires no strict production quotas (Tr. 15). Lastly, the ALJ determined that Plaintiff
may have no contact with the public and only occasional contact with supervisors and coworkers
in a task-oriented environment (Tr. 15).
Plaintiff argues that Finding No. 5 is not supported by substantial evidence because the ALJ
made selective findings without a rationale for rejecting those findings that support Plaintiff’s claim
of disability (DN 15, Plaintiff’s Fact and Law Summary at Pages 2-11). Plaintiff also argues that
the ALJ failed to consider her subjective complaints of pain when making the residual functional
capacity determination (DN 15, Plaintiff’s Fact & Law Summary at Pages 2-11). More specifically,
Plaintiff maintains that due to her physical and mental conditions, she is unable to perform even
unskilled sedentary work (DN 15, Plaintiff’s Fact & Law Summary at Pages 2-11). With regard to
her physical impairments, Plaintiff asserts that she experiences severe neck pain, which radiates into

§§ 416.929, 416.945(a). Thus, in making the residual functional capacity finding the
Administrative Law Judge must necessarily assign weight to the medical source statements in
the record as well as consider the subjective allegations of the claimant and make credibility
findings. 20 C.F.R. §§ 416.927(c), 416.929; Social Security Ruling 96-7p.
2

The Social Security Regulations define “medium work” in the following manner:
Medium work involves lifting no more than 50 pounds at a time
with frequent lifting or carrying of objects weighing up to 25
pounds. If someone can do medium work, we determine that he or
she can also do sedentary and light work.

20 C.F.R. § 404.1567(b).
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her chest and left shoulder, and as a result of this pain, she cannot lift more than 10 or 20 pounds or
reach overhead (Tr. 16, 61-62). As to her mental impairments, Plaintiff asserts that she suffers from
severe depression, obsessive-compulsive disorder and anxiety, and she has a history of substance
abuse (Tr. 16, 50-60). In addition, she alleges auditory hallucinations, racing thoughts, mood
swings, suicidal ideation and paranoia, which interfere with her sleep and ability to get along with
others (Tr. 16, 50-60). Because of her alleged mental impairments, Plaintiff asserts that she can
maintain concentration on an object for no more than 30 minutes at one time (Tr. 16, 50-60). Lastly,
Plaintiff maintains that the ALJ’s determination concerning her ability to perform medium work is
faulty, because it is partially based on the ALJ’s improper assessment of her credibility (DN 15,
Plaintiff’s Fact and Law Summary at Pages 8-9).
In assessing a claimant’s residual functional capacity, the Administrative Law Judge must
necessarily consider the subjective allegations of the claimant and make credibility findings. 20
C.F.R. §§ 404.1529, 416.929; Social Security Ruling 96-7p. A claimant’s statement that he or she
is experiencing pain or other symptoms will not, taken alone, establish that he or she is disabled;
there must be medical signs and laboratory findings which show the existence of a medical
impairment that could reasonably be expected to give rise to the pain alleged. 20 C.F.R. §§
404.1529(a), 416.929(a).
In determining whether a plaintiff suffers from debilitating pain, the two-part test set forth
in Duncan v. Sec’y of Health and Human Servs., 801 F.2d 847, 853 (6th Cir. 1986), applies. First,
the Administrative Law Judge must examine whether there is objective medical evidence of an
underlying medical condition. If there is, then the Administrative Law Judge must determine: “(1)
whether objective medical evidence confirms the severity of the alleged pain arising from the

7

condition; or (2) whether the objectively established medical condition is of such severity that it can
reasonably be expected to produce the alleged disabling pain.” Id. When, as in this case, the
reported pain or symptoms suggest an impairment of greater severity than can be shown by objective
medical evidence, the Administrative Law Judge will consider other information and factors which
may be relevant to the degree of pain alleged. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).
According to Social Security Ruling 96-7p, an Administrative Law Judge must consider the
objective medical evidence as well as the following factors when assessing the credibility of an
individual’s statements: (1) the individual’s daily activities; (2) the location, duration, frequency,
and intensity of the individual’s pain or other symptoms; (3) factors that precipitate and aggravate
the symptoms; (4) the type, dosage, effectiveness, and side effects of any medication the individual
takes or has taken to alleviate the pain or other symptoms; (5) treatment, other than medication, the
individual receives or has received for relief of pain or other symptoms; (6) Any measures other than
treatment the individual uses or has used to relieve pain or other symptoms; and (7) any other factors
concerning the individual’s functional limitations and restrictions due to pain or other symptoms.
Here, the ALJ was persuaded by the absence of objective medical evidence supporting
Plaintiff’s symptoms, her treatment history, and her own testimony regarding her daily activities (Tr.
15-20).

More importantly, the ALJ found Plaintiff’s statements–concerning the intensity,

persistence, and limiting effects of her symptoms–not to be credible to the extent they are
inconsistent with her residual functional capacity finding. It is of course for the Administrative Law
Judge, and not the reviewing court, to evaluate the credibility of witnesses, including that of the
claimant. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007) (citing Walters v.
Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997); Crum v. Sullivan, 921 F.2d 642, 644 (6th

8

Cir. 1990); Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 538 (6th Cir. 1981)). However,
the Administrative Law Judge is not free to make credibility determinations based solely upon an
“intangible or intuitive notion about an individual’s credibility.” Rogers, 486 F.3d at 247 (citing
Social Security Ruling 96-7p, 1996 WL 374186, *4 (July 2, 1996)). “In evaluating complaints of
pain, an Administrative Law Judge may properly consider the credibility of the claimant.” Walters
v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997) (quoting Kirk v. Sec’y of Health and
Human Servs., 667 F.2d 524, 538 (6th Cir. 1981)). Furthermore, an Administrative Law Judge’s
findings based on the credibility of the claimant are to be accorded great weight and deference,
particularly since an Administrative Law Judge is charged with the duty of observing a witness’
demeanor and credibility. Walters, 127 F.3d at 531 (citing Villarreal v. Sec’y of Health and Human
Servs., 818 F.2d 461, 463 (6th Cir. 1987)). Nevertheless, an Administrative Law Judge’s assessment
of a claimant’s credibility must be supported by substantial evidence. Beavers v. Sec’y of Health,
Educ. and Welfare, 577 F.2d 383, 386-87 (6th Cir. 1978).
Plaintiff contends the ALJ erred in not fully crediting her subjective complaints of pain and
reported limitations (DN 15, Plaintiff’s Fact and Law Summary at Pages 2-11). First, Plaintiff
claims that the ALJ failed to take into account her treatment history as a whole and to discuss the
side effects she experiences from her medications (DN 15, Plaintiff’s Fact and Law Summary at
Pages 5-7). The Court disagrees.
The treatment a plaintiff has sought for the allegedly disabling mental and physical
impairments is a factor the Administrative Law Judge may consider in assessing plaintiff’s
subjective complaints. 20 C.F.R. §§ 404.1529(c)(3)(V) and 416.929(c)(3)(v). Here, the ALJ
observed that “the course of medical treatment and use of medication in this case are not consistent

9

with the disabling symptoms as described by the claimant” (Tr. 17). Moreover, the ALJ noted that
“[t]reatment of the claimant’s physical and mental conditions has been conservative” (17). With
regard to her physical impairments, the ALJ recognized the following:
It is noted that the claimant has not been hospitalized for a significant
period of time and surgical intervention has not been necessary for
any of her impairments. Specifically, as to her neck impairment, the
claimant has received some treatment from her family practitioner,
including the prescription of Neurontin. Yet, the office visit notes
reflect numerous occasions on which the claimant did not specify any
particular complaint other than medication refills for her hypertension
and GERD, which contrasts with the current claim of ongoing,
disabling symptoms since the alleged onset date. (Exhibits 14F, 17F
and 18F). Additionally, the claimant has been seen in the emergency
room on only 2 occasions for acute pain since the alleged onset date,
but there is no evidence of hospitalization for any period of time. It
is noted that both of these visits are in January 2011, at the time of
onset of her cervical symptoms. (Exhibits 12F and 13F). Moreover,
she has not been seen by an orthopedic surgeon or neurosurgeon for
evaluation of her neck pain, she has had no epidural injections, and
does not see a pain specialist. It also is noted that the claimant does
not use an assistive device to walk or wear a brace and she has not
participated in physical therapy or received care from a chiropractor.
Moreover, she has not received any treatment for her obesity.
(Tr. 17-18). The ALJ discounted Plaintiff’s credibility, because her subjective complaints with
regard to her physical impairments are not well-supported by the medical evidence of record.
Plaintiff testified that her excruciating neck pain prevented her from lifting more than 10 or 20
pounds or reach overhead, but as the ALJ noted, there is no medical evidence in the record to
corroborate the severity of her alleged neck pain (Tr. 16-18).

In addition, Plaintiff’s alleged

physical symptoms are contradicted by her daily activities, as will be discussed below.
With regard to her mental impairments, the ALJ observed the following:
[T]he claimant has received fairly regular outpatient therapy and she
is prescribed psychotropic medications. However, the record reflects
that treatment has been effective in treating her symptoms. In
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December 2011, the treatment records reflect that she was stable on
present meds and her mood was stable. Moreover, in May 2012, she
reported that she was doing better since her medication change the
previous month. She indicated that she was having no racing
thoughts, mood swings or psychosis and she wanted to continue
working part-time. (Exhibits 14F, 17F and 18F). Further, she has not
been seen in the emergency room or hospitalized for any period of
time related to her mental health issues since the alleged onset date.
Given the claimant’s allegations of totally disabling symptoms, one
might expect to see some indication in the treatment records of
restrictions placed on the claimant by the treating doctor. Yet a
review of the record in this case reveals no restrictions recommended
by the treating doctor. All the foregoing, indicate that the claimant’s
allegations of symptoms and limitations is not as severe as alleged.
(Tr. 18). In light of the ALJ’s observations, the Court concluded that the ALJ conducted a thorough
review of the record as a whole and properly found Plaintiff not to be fully credible. While the ALJ
did not list every single medication Plaintiff uses, he explicitly addressed Plaintiff’s use of
medications and her own testimony that she was doing better in May 2012 due to a medication
change (Tr. 18). It is well-established that an Administrative Law Judge is not required to discuss
each and every piece of evidence in the record for his or her decision to stand. See Paskewitz v.
Astrue, 2012 WL 5845357, *11 (N.D. Ohio 2012) (“Although required to develop the record fully
and fairly, an ALJ is not required to discuss all the evidence submitted, and an ALJ’s failure to cite
specific evidence does not indicate that it was not considered” (citations omitted).

The

Administrative Law Judge is not required to discuss each piece of data in his or her opinion, so long
as he or she considers the evidence as a whole and reaches a reasoned conclusion. See Boseley v.
Comm’r of Soc. Sec., 397 F. Appx. 195, 199 (6th Cir. 2010).
In addition to the above, the ALJ discounted Plaintiff’s credibility based on the inconsistency
of her daily activities and the residual functional capacity of medium work and are inconsistent with
Plaintiff’s allegations of impairments (Tr. 18). A plaintiff’s level of daily activity is a factor which
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the Administrative Law Judge may consider in determining the extent to which pain is of disabling
severity. 20 C.F.R. §§ 404.1529(c)(3)(I), 416.929(c)(3)(I); Bogle v. Sullivan, 998 F.2d 342, 348 (6th
Cir. 1993); Blacha v. Sec’y of Health and Human Servs., 927 F.2d 228, 231 (6th Cir. 1990). (As a
matter of law, an Administrative Law Judge may consider household and social activities in
evaluating complaints of disabling pain). In the present matter, Plaintiff’s activities during the
relevant time period involved working at a daycare 15 hours per week, walking four blocks to the
bus stop to get to work, and attending two or three AA meetings per week (Tr. 18, 53-65).
Moreover, the ALJ acknowledged that Plaintiff manages her own fiances and does her own shopping
(Tr. 18, 53-65). Also, during the mental consultative examination on February 13, 2012, Plaintiff
reported that she enjoyed being around other people and spent a good portion of her day talking with
others (Tr. 18, 570-573). This level of activity, while not extensive, is not indicative of disabling
pain. See Crisp v. Sec’y of Health and Human Servs., 790 F.2d 450, 453 (6th Cir. 1986). Plaintiff
maintains that her daily activities do not amount to “substantial gainful activity,” and a result, she
is not able to perform medium work as set forth under the ALJ’s residual functional capacity
determination. The Court agrees that the mere fact Plaintiff is able to maintain a range of daily
activities does not mean she is not disabled. However, the ALJ did not analyze Plaintiff’s credibility
in terms of her daily activities alone but also looked at her medical records and treatment regimen,
emotional condition, appearance and demeanor, and overall testimony (Tr. 15-18).
Also, Plaintiff challenges the ALJ’s consideration of her work history in discrediting her
credibility (DN 15, Plaintiff’s Fact and Law Summary at Page 6). More specifically, Plaintiff argues
that the ALJ failed to consider special conditions that exist for Plaintiff in the workplace as set forth
under 20 C.F.R. § 404.1573(c) (DN 15, Plaintiff’s Fact and Law Summary at Page 6). According

12

to Plaintiff’s testimony during the administrative hearing, she stated that her employer at the day
care made a special accommodation for her not to have any contact with the children but instead she
would be responsible for cooking, washing dishes, doing laundry, and any other cleaning duties
(Tr. 16-18, 66). Plaintiff’s argument that the ALJ failed to take this special accommodation into
account is misplaced, because the ALJ actually considered these duties as Plaintiff’s daily activities
(Tr. 16-18).
Lastly, Plaintiff makes a general challenge to the ALJ’s determination that Plaintiff exhibited
“generally unpersuasive appearance and demeanor” during her testimony at the hearing (DN 15,
Plaintiff’s Fact and Law Summary at Pages 8-9). To be more specific, the ALJ provided the
following credibility finding:
Another factor influencing the conclusions reached in this decision
is the claimant’s generally unpersuasive appearance and demeanor
while testifying at the hearing. The claimant was capable of
answering questions and relating adequately with the undersigned
without any apparent interference or mental or physical symptoms.
It is emphasized that this observation is only one among many being
relied on in reaching a conclusion regarding the credibility of the
claimant’s allegations and the claimant’s residual functional capacity.
(Tr. 19). As discussed above, an Administrative Law Judge’s credibility determinations about a
claimant are to be given great weight, particularly since the ALJ is charged with observing the
claimant’s demeanor and credibility. Walters, 127 F.3d at 531. Moreover, the “[Administrative
Law Judge] is not free to make credibility determinations based solely upon an ‘intangible or
intuitive notion about an individual’s credibility.’” Rogers, 486 F.3d at 247. While “unpersuasive
appearance and demeanor” alone is not sufficient to discredit Plaintiff’s credibility, it is one of many
factors used in assessing credibility as set forth under Social Security Ruling 96-7p. The ALJ
explicitly noted that this observation was only one among many factors being relied on in making
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a credibility finding (Tr. 19). As a result, Plaintiff’s challenge is without merit and the Court will
not second-guess the ALJ’s credibility determinations under Finding No. 5. In sum, the Court finds
that the ALJ’s credibility determinations are supported by substantial evidence and comport with
applicable law.
Next, Plaintiff argues that the ALJ failed to provide reasons for rejecting the opinion of
Jessica Huett, Psy. D. (DN 15, Plaintiff’s Fact and Law Summary at Pages 9-10). In addition,
Plaintiff argues that the ALJ erred in according great weight to the opinions of state agency
psychological consultants (DN 15, Plaintiff’s Fact and Law Summary at Pages 10-11). In
opposition, the Commissioner maintains that the ALJ properly assessed the opinions of the medical
sources as prescribed under applicable law (DN 15, Commissioner’s Fact and Law Summary at
Pages 11-12). The Court agrees with the Commissioner.
The rule on controlling weight applies when a “treating source” renders a “medical opinion”
that is both well supported by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with other substantial evidence in the record. Social Security Ruling 96-2p; 20
C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); Bogle v. Sullivan, 998 F.2d 342, 347-348 (6th Cir. 1993);
Crouch v. Sec’y of Health and Human Servs., 909 F.2d 852, 857 (6th Cir. 1990). If the medical
opinion of a treating source is not entitled to controlling weight, then the Administrative Law Judge
must determine how much weight it should be accorded.

20 C.F.R. §§ 404.1527(d)(2),

416.927(d)(2); Social Security Ruling 96-2p. While there are no treating sources in the present
matter, the ALJ had to consider medical opinions from consultative examiners and non-examining
state agency psychological consultants and give “good reasons” for rejecting or adopting the
opinions.

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Furthermore, under certain circumstances the opinions of non-examining State agency
medical or psychological consultants may be given greater weight than the opinions of treating or
examining sources. Social Security Ruling 96-6p, 1996 WL 374180, *3 (July 2, 1996). “For
example, the opinion of a State agency medical or psychological consultant or other program
physician or psychologist may be entitled to greater weight than a treating source’s medical opinion
if the State agency medical or psychological consultant’s opinion is based on a review of a complete
case record that includes a medical report from a specialist in the individual’s particular impairment
which provides more detailed and comprehensive information than what was available to the
individual’s treating source.” Social Security Ruling 96-6p, 1996 WL 374180, *3.
With regard to Dr. Huett, the ALJ gave “little weight” to her opinion (Tr. 19-20). Plaintiff
maintains that the ALJ rejected Dr. Huett’s opinion without providing any basis for rejecting it;
however, Plaintiff fails to recognize the ALJ’s extensive discussion with regard to Dr. Huett. The
ALJ acknowledged Dr. Huett’s conclusions, as set forth in the ALJ’s opinion:
Dr. Huett concluded that the claimant had the following work-related
limitations: marked limitations in her ability to sustain attention and
concentration towards the performance of simple and repetitive tasks;
moderate to marked limitations in her ability to tolerate stress and
pressure of day-to-day employment and respond appropriately to
supervision, coworkers and work pressures in a work setting; and
slight impairment in her ability to understand, remember and carry
out instructions towards performance of simple repetitive tasks.
(Tr. 19). The ALJ found the aforementioned conclusions contrary to Dr. Huett’s assigning Plaintiff
a GAF score of 51 to 55, which indicates only moderate symptoms or impairment in social or
occupational functioning (Tr. 19-20).
Furthermore, the ALJ determined that Dr. Huett’s opinion was inconsistent with Plaintiff’s
daily activities, including her current capacity to work part-time, and her conservative treatment
15

history (Tr. 21). The ALJ also observed that Plaintiff’s mental health treatment records reflect that
she is doing much better and her moods are stable (Tr. 21). As a result, the ALJ’s decision to afford
“little weight” to the opinion of Dr. Huett is supported by substantial evidence and comports with
applicable law.
With regard to the state agency psychological consultants, the ALJ afforded “great weight”
to their assessments (Tr. 20). The ALJ discussed the assessment performed on March 4, 2012 and
affirmed on May 2, 2012, in which the state agency psychological consultants determined the
following:
[C]laimant is capable of understanding, remembering and carrying
out simple and one and two step instructions; sustaining attention for
extended periods of two hour segments for simple tasks; relating
adequately to coworkers and supervisors with occasional (not more
than 1/3 of the time) contact with the public; and adapting to routine
changes as needed within the above parameters. (Exhibits 7A, 8A, 9A
and 10A).
(Tr. 20). The ALJ properly gave weight to the assessment completed by the state agency
psychological consultants, as laid out above, because they had the benefit of reviewing the record
as a whole and their residual functional capacity assessment is consistent with the record.
Overall, the ALJ properly adopted the residual functional capacity determination set forth
by the state agency psychological consultants and added additional postural and environmental
limitations, based on the X-ray of Plaintiff’s cervical spine and in giving some weight to the
subjective complaints of Plaintiff (Tr. 19). As a result, the ALJ adequately reviewed the evidence
in the record as a whole and his determination under Finding No. 5 is supported by substantial
evidence and comports with applicable law.

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Plaintiff challenges ALJ’s Finding No. 10, which addresses the fifth step in the five-step
sequential evaluation process promulgated by the Commissioner (DN 15, Plaintiff’s Fact and Law
Summary at Page 11). After considering Plaintiff’s age, education, work experience, and residual
functional capacity, including testimony from the vocational expert, the ALJ concluded that there
are jobs that exist in significant numbers in the national economy that the Plaintiff can perform as
explained in 20 C.F.R. §§ 404.1569 and 404.1569(a) (Tr. 21). More specifically, the ALJ found that
Plaintiff is capable of performing representative occupations such as cleaner, packer, and store
laborer (Tr. 21). Plaintiff does not provide specific arguments as to why Finding No. 10 is not
supported by substantial evidence (DN 15, Plaintiff’s Fact and Law Summary at Page 11). Instead,
she maintains that Finding No. 10 is not supported by substantial evidence, because of the reasons
set forth under the challenge to Finding No. 5 (DN 15, Plaintiff’s Fact and Law Summary at Page
11).
At the fifth step, the burden of proof shifts to the Commissioner as explained below:
The burden of proof in a claim for Social Security benefits is upon
the claimant to show disability which prevents her from performing
any substantial gainful employment for the statutory period. Once,
however, a prima facia case that claimant cannot perform her usual
work is made, the burden shifts to the [Commissioner] to show that
there is work in the national economy which she can perform.
Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980) (citing Hephner v. Mathews, 574 F.2d 359, 361
(6th Cir. 1978); Garrett v. Finch, 436 F.2d 15, 18 (6th Cir. 1970)). The Commissioner may meet this
burden by relying on expert vocational testimony received during the hearing to determine what jobs
exist in significant numbers in the economy which plaintiff can perform considering the combination
of his or her limitations. See Born v. Sec’y of Health and Human Servs., 923 F.2d 1168, 1174 (6th
Cir. 1990); Davis v. Sec’y of Health and Human Servs., 915 F.2d 186, 189 (6th Cir. 1990); Varley
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v. Sec’y of Health and Human Servs., 820 F.2d 777, 779 (6th Cir. 1987). In making a determination
at the fifth step of the five-step sequential evaluation process, the ALJ must consider a claimant’s
age, education, past relevant work experience, and residual functional capacity. 20 C.F.R. §§
404.1520(f), 416.920(f).
Notably, a vocational expert’s testimony can constitute substantial evidence to support the
Commissioner’s finding that a plaintiff is capable of performing a significant number of jobs
existing in the local, regional, and national economies, Bradford v. Sec’y of the Dep’t of Health and
Human Servs., 803 F.2d 871, 874 (6th Cir. 1986) (per curiam), so long as a vocational expert’s
testimony is based on a hypothetical question which accurately portrays the plaintiff’s physical and
mental impairments. Varley v. Sec’y of Health and Human Servs., 820 F.2d 777, 779 (6th Cir.
1987). The hypothetical question is not erroneous where at least one doctor substantiates the
information contained therein. Hardaway v. Sec’y of Health and Human Servs., 823 F.2d 922, 92728 (6th Cir. 1987) (per curiam). Moreover, there is no requirement that the Administrative Law
Judge’s hypothetical question to the vocational expert reflect plaintiff’s unsubstantiated complaints.
For reasons discussed above, Plaintiff has failed to successfully challenge the ALJ’s residual
functional capacity finding. As mentioned earlier, the ALJ found that Plaintiff has the residual
functional capacity to perform medium work which is impeded by additional limitations (Tr. 15, 21).
Because Plaintiff’s residual functional capacity finding did not parallel the criteria of MedicalVocational Rule 203.22, the ALJ only used the medical-vocational rules as a framework for
decision-making (Tr. 21). To determine the extent to which these limitations erode the unskilled
medium occupational base, the ALJ asked the vocational expert whether jobs exist in the national
economy for an individual with Plaintiff’s age, education, work experience, and residual functional

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capacity (Tr. 21). The vocational expert testified that Plaintiff would be able to perform the
requirements of representative occupations including: cleaner, packer, and store laborer (Tr. 21).
While Plaintiff does not provide specific arguments as to why she challenges Finding No. 10, she
challenges Finding No. 10 based on the residual functional capacity determination under Finding
No. 5. As discussed above, the ALJ’s residual functional capacity determination is supported by
substantial evidence and moreover, the ALJ incorporated this residual functional capacity in his
hypothetical question to the vocational expert (Tr. 21, 65-70). Because the hypothetical question
accurately portrays Plaintiff’s physical and mental impairments, the vocational expert’s testimony
that there are jobs that exist in significant numbers the Plaintiff can perform constitutes substantial
evidence.
Based on the foregoing reasons, the ALJ properly relied on the testimony of the vocational
expert to find Plaintiff can perform jobs that exist in significant numbers in the national economy
(Tr. 21). As a result, the Court finds that the ALJ’s determination under Finding No. 10 is supported
by substantial evidence in the record and fully comports with applicable law.
In relation to the ALJ’s determination of “not disabled,” at the fifth step of the five-step
sequential evaluation process promulgated by the Commissioner, Plaintiff challenges Finding No.
9 (DN 15, Plaintiff’s Fact and Law Summary Page 11). Plaintiff does not provide specific
arguments as to why she challenges Finding No. 9. Instead, Plaintiff’s challenge to Finding No. 9
is based on the arguments relating to the challenge to the residual functional capacity determination
under Finding No. 5. Under Finding No. 9, the ALJ concluded the following:
Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills (See SSR 8219

41 and 20 CFR Part 404, Subpart P, Appendix 2).
(Tr. 21).
As expressed above, the ALJ found that Plaintiff suffered from limitations beyond those
accounted for by the Medical-Vocational Guidelines and therefore, used the rules merely as a
“framework” in determining whether Plaintiff could perform other work (Tr. 21). The ALJ relied
on the testimony of the vocational expert, in determining that there are significant number of jobs
in the national economy that Plaintiff could perform (Tr. 21).
In relevant part, Social Security Ruling 82-41 reads, “When the issue of skills and their
transferability must be decided, the adjudicator or ALJ is required to make certain findings of fact
and include them in the written decision,” and “When a finding is made that a claimant has
transferable skills, the acquired work skills must be identified.” 1982 WL 31389, * 7 (January 1,
1982); see also Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 549 (6th Cir. 2004). The
Commissioner has interpreted that these passages apply only when an Administrative Law Judge
relies solely on the Medical-Vocational Guidelines, also known as the grid, in which cases the
Administrative Law Judge must ascertain whether the claimant has transferable skills in order to
apply the grid. See Wilson, 378 F.3d at 549. Here, the ALJ merely used the grid as a “framework”
in determining that Plaintiff is not disabled and therefore, transferability of job skills is not essential
to the determination of disability. In sum, the ALJ’s determination under Finding No. 10 is
supported by substantial evidence and comports with applicable law.
Lastly, with regard to Finding No. 11, Plaintiff makes a broad challenge to the ALJ’s ruling
that Plaintiff has not been under a disability, as defined in the Social Security Act, from July 1, 2010,
through August 7, 2012 (DN 15, Plaintiff’s Fact and Law Summary at Page 11). Based on the

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analysis the Court has set forth with regard to Finding Nos. 5, 9, and 10, the ALJ did not err in
finding that Plaintiff has not been under a disability from July 1, 2010 through August 7, 2012.
Because the Court concludes that Plaintiff’s challenge to Finding Nos. 5, 9, and 10 fails, Plaintiff’s
argument with regard to Finding No. 11 holds no merit. In sum, the Court has reviewed the record
and finds that the ALJ’s determinations under Finding Nos. 5, 9, and 10 are supported by substantial
evidence in the record and fully comport with applicable law.

CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that the final decision of the
Commissioner is AFFIRMED, pursuant to 42 U.S.C. § 405(g).
This is a final and appealable Order and there is no just cause for delay.

October 25, 2013

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Counsel of Record

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