Stinson v. Commissioner of Social Security

Filing 22

MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 3/10/2017 - The final decision of the Commissioner is AFFIRMED. Judgment is granted for the Commissioner. cc:counsel (DAK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1: 16-CV-00004-HBB

MARIE E. STINSON

PLAINTIFF

VS.

NANCY A. BERRYHILL, Acting
Commissioner of Social Security

DEFENDANT

MEMORANDUM OPINION
AND ORDER
BACKGROUND
Before the Court is the complaint (DN 1) of Marie E Stinson (APlaintiff@) seeking judicial
review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the
Plaintiff (DN 14) and Defendant (DN 21) have filed a Fact and Law Summary.
Pursuant to General Order No. 2014-17, this matter has been referred to the undersigned
United States Magistrate Judge to review the Fact and Law Summaries and submit Findings of
Fact, Conclusions of Law and Recommendations. By Order entered April 13, 2016 (DN 12), the
parties were notified that oral arguments would not be held unless a written request therefor was
filed and granted. No such request was filed.

1

FINDINGS OF FACT
Plaintiff protectively filed applications for Disability Insurance Benefits and Social
Security Income payments1 on July 6, 2012 (Tr. 13, 106). Plaintiff alleged that she became
disabled on December 30, 2005 as a result of a pinched nerve in the back, high blood pressure, and
high cholesterol (Tr. 106, 190-). Administrative Law Judge Todd Spangler (AALJ@) conducted a
hearing on August 20, 2014 in London, Kentucky (Tr. 13, 656-58). Plaintiff was present and
represented by attorney David Cross. Also present and testifying were William Ellis, as a
vocational expert, and Dr. Arthur Lorber, as a medical expert (Tr. 13, 656-58).
In a decision dated November 18, 2014, the ALJ evaluated this adult disability claim
pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr.
13-23). The ALJ noted that Plaintiff met the insured status requirements of the Social Security
Act through December 31, 2005 (Tr. 15). At the first step, the ALJ found Plaintiff has not
engaged in substantial gainful activity at any time relevant to the decision (Tr. 15).
At the second step, the ALJ determined there was an absence of evidence demonstrating
that Plaintiff=s hypertension was a severe impairment prior to December 31, 2005, her date last
insured (Tr. 15-16). Additionally, the ALJ found an absence of evidence showing her purported
back problems and anxiety were medically determinable impairments prior to December 31, 2005,
the date last insured (Tr. 16). Therefore, the ALJ concluded that Plaintiff did not have a severe
impairment or combination of impairments prior to December 31, 20015 (Tr. 16-17).

1 Plaintiff's application for Social Security Income benefits does not appear in the record. However, the documents
within the administrative record indicate that Plaintiff filed her application on the same day that she filed her
application for Disability Insurance Benefits.

2

At the second step, the ALJ also determined since Plaintiff’s application for SSI payments
was filed on July 6, 2012, Plaintiff has had the combined “severe” impairments of obesity and
lumbar degenerative disc disease (Tr. 17-18).

Additionally, the ALJ found that Plaintiff’s

hypertension, hyperlipidemia, vertigo, kidney problems, poor vision, chronic pain in her feet, pain
and swelling in her right hand, irritable bowel syndrome, gastritis, and mental impairment are
nonsevere impairments within the meaning of the regulations (Tr. 17-21). At the third step, the
ALJ concluded since July 6, 2012, Plaintiff has not had an impairment or combination of
impairments that meets or medically equals one of the listed impairments in Appendix 1 (Tr. 16).
At the fourth step, the ALJ found that since Plaintiff’s application for SSI payments was
filed on July 6, 2012, Plaintiff has had:
[T]he residual functional capacity to perform medium work as
defined in 20 CFR 404.1567(c) and 416.967(c) except that she
cannot climb ladders, ropes or scaffolds; can perform no more than
frequent balancing, stooping, kneeling, crouching, crawling or
climbing of ramps and stairs. She can tolerate no more than
concentrated exposure to vibration and no more than moderate
exposure to work place hazards.
(Tr. 21). Relying on testimony from the vocational expert, the ALJ found since Plaintiff’s
application for SSI payments was filed on July 6, 2012, Plaintiff Plaintiff has been capable of
performing past relevant work as a sewing factory worker (Dr. 22-23). Therefore, the ALJ
concluded that Plaintiff has not been under a Adisability,@ as defined in the Social Security Act,
from December 30, 2005 through the date of the decision, November 18, 2014 (Tr. 23).
Plaintiff timely filed a request for the Appeals Council to review the ALJ=s decision. The
Appeals Council denied Plaintiff=s request for review of the ALJ=s decision (Tr. 6-9).

3

CONCLUSIONS OF LAW
Standard of Review
Review by the Court is limited to determining whether the findings set forth in the final
decision of the Commissioner are supported by Asubstantial evidence,@ 42 U.S.C. § 405(g); Cotton
v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993); Wyatt v. Sec’y of Health & Human Servs., 974 F.2d
680, 683 (6th Cir. 1992), and whether the correct legal standards were applied. Landsaw v. Sec’y
of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). ASubstantial 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 & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993)). In reviewing a
case for substantial evidence, the Court Amay not try the case de novo, nor resolve conflicts in
evidence, nor decide questions of credibility.@ Cohen v. Sec’y of Health & Human Servs., 964
F.2d 524, 528 (6th Cir. 1992) (quoting Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984)).
As previously mentioned, the Appeals Council denied Plaintiff=s request for review of the
ALJ=s decision (Tr. 6-9). 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). Thus, the Court will be reviewing the decision of the ALJ, not the
Appeals Council, and the evidence that was in the administrative record when the ALJ rendered
the decision. 42 U.S.C. § 405(g); 20 C.F.R. § 404.981; Cline v. Comm’r of Soc. Sec., 96 F.3d
146, 148 (6th Cir. 1996); Cotton v. Sullivan, 2 F.3d 692, 695-696 (6th Cir. 1993).

4

The Commissioner’s Sequential Evaluation Process
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
Disability Insurance Benefits), 1381 et seq. (Title XVI Supplemental Security Income). The term
Adisability@ 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 AEvaluation 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

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 fourth step.
A
1. Plaintiff’s Argument
Plaintiff challenges Finding No. 5 because her vertigo and gastritis are also severe
impairments (DN 14 PageID # 738). Plaintiff acknowledges that the failure to find a particular
impairment severe does not, standing alone, constitute reversible error provided “the effect of that
condition is considered in determining whether the claimant ‘retained sufficient residual
functional capacity to allow him to perform substantial gainful activity’” (Id. PageID # 740 citing
Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987)). Plaintiff argues
that she established functional limitations for both conditions through her testimony and the
medical records which were not taken into consideration by the ALJ in determining Plaintiff’s
residual functional capacity (Id. PageID # 740-42). Plaintiff asserts that the ALJ did not properly
consider the impact of Plaintiff’s dizziness/vertigo and epigastric pain when considering her
residual functional capacity, and, therefore, the matter should be remanded to the ALJ with
instructions to address this issue (Id.).
2. Defendant’s Argument
Defendant points out that the ALJ acknowledged Plaintiff’s complaints related to her
vertigo and gastric problems but found those conditions caused no more than minimal limitations
on Plaintiff’s ability to work (DN 21 PageID # 759-60 citing Tr. 18-19). Defendant asserts that to
the extent those conditions affected Plaintiff’s work activities, the ALJ adequately accounted for
6

all of Plaintiff’s credible limitations in the residual functional capacity assessment by limiting
Plaintiff to medium work with postural and environmental limitations (Id. citing Tr. 21). Further,
Defendant points out because medical signs and laboratory findings did not show a medically
determinable impairment related to Plaintiff’s claims of vertigo, the ALJ was not obligated to
accept or accommodate Plaintiff’s complaints concerning her difficulty sitting/standing and lifting
stemming from her vertigo (Id. PageID # 760-61 citing 20 C.F.R. §§ 416.929(a) and (b)).
Defendant asserts that the ALJ evaluated Plaintiff’s complaints about stomach problems and
reasonably determined there was no evidence to show they caused more than minimal limitations
(Id.).
3. Discussion
At the second step in the sequential evaluation process, a claimant must demonstrate she
has a Asevere@ physical or mental impairment to continue with the remaining steps in the disability
determination. 20 C.F.R. §416.920(a)(4)(ii); Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988)
(per curiam). To satisfy this burden, the claimant must show she suffers from (1) a Amedically
determinable@ physical or mental condition; (2) the condition satisfies the 12 month duration
requirement set forth in 20 C.F.R. §§ 404.1509 and/or 416.909; and (3) the condition Asignificantly
limits@ her ability to do one or more basic work activities. 20 C.F.R. '' 404.1520(a)(4)(ii) and
(c), 416.920(a)(4)(ii) and (c); Social Security Ruling 96-3p; Social Security Ruling 96-4p; Higgs,
880 F.2d at 863.
To satisfy the Amedically determinable@ requirement the claimant must present objective
medical evidence (i.e., signs, symptoms, and laboratory findings) that demonstrates the existence
of a physical or mental impairment. 20 C.F.R. § 416.908; Social Security Ruling 96-4p, 1996 WL
7

374187, at *1 (1996); Social Security Ruling 96-3p, 1996 WL 374181, at *2 (1996). Thus,
symptoms and subjective complaints alone are not sufficient to establish the existence of a
Amedically determinable@ physical or mental impairment. Social Security Ruling 96-4p, 1996
WL 374187, at *1.
Basic work activities relate to the abilities and aptitudes necessary to perform most jobs,
such as the ability to perform physical functions, the capacity for seeing and hearing, and the
ability to use judgment, respond to supervisors, and deal with changes in the work setting. 20
C.F.R. § 416.921(b). An impairment will be considered non-severe only if it is a “slight
abnormality which has such minimal effect on the individual that it would not be expected to
interfere with the individual’s ability to work, irrespective of age, education and work experience.”
Farris v. Sec’y of Health & Human Servs., 773 F.2d 85, 90 (6th Cir. 1985) (citing Brady v.
Heckler, 724 F.2d 914, 920 (11th Cir. 1984)).
Although Plaintiff’s subjective complaints of vertigo are memorialized in the record, there
is an absence of objective medical evidence demonstrating the existence of a medically
determinable condition.

The records from the Cumberland Family Medical Center merely

indicate that Dr. Tammy Brown prescribed medications such as Meclizine and Zofran to address
Plaintiff’s subjective complaints (see Tr. 254, 522-43, 551, 565). Dr. Brown did order the cranial
MRI scan performed on March 19, 2014 that revealed:
On the T1 weighted sagittal images, midline structures appear
intact. On the T2 and FLAIR axial images, brain parenchyma a is
homogeneous. There is some mild increased signal identified
within the periventricular white matter. The findings are fairly
subtle and probably related to minimal changes of chronic
microvascular ischemia. No foci of cortical signal abnormality are
identified.
8

On the T2 weighted images, there is no evidence of significant
mucoperiosteal thickening or air fluid levels. The left maxillary
sinus is hypoplastic. The 7th and 8th nerve complexes appear
intact.
(Tr. 544). Apparently, Dr. Brown concluded the MRI generated essentially normal findings
because she did not mention the results in subsequent treatment notes dated March 21, April 4,
April 18, April 22, May 19, and July 18, 2014 (Tr. 522-43).
The ALJ recognized that Plaintiff’s history of vertigo dated back to November 2013, and
that medications such as Meclizine and Zofran were prescribed to address Plaintiff’s symptoms
(Tr. 18). The ALJ also recognized an overall absence of any specialist treatment, even though
Plaintiff was referred to a neurologist in March 2014, or diagnostic testing such as a tilt table
testing to identify any objective etiology for Plaintiff’s vertigo complaints (Id.). Further, the ALJ
noted that the cranial MRI2 generated normal findings (Id.). Despite the paucity of objective
medical evidence regarding this medical condition, the ALJ must have found that Plaintiff’s
vertigo is a “medically determinable” impairment because the ALJ determined “this condition no
more than minimally impacts the claimant’s ability to perform basic work-related activities and is
therefore less than severe in nature” (Id.). The undersigned concludes that the ALJ’s findings, at
the second step, regarding Plaintiff’s vertigo are supported by substantial evidence in the record
and comport with applicable law.
Plaintiff’s complaints about epigastric pain and acid reflux resulted in Dr. Cross
performing a gastro-scope on January 2, 2014 (Tr. 499, 510). During the procedure, Dr. Cross
took a biopsy and sent it to the lab to determine if Plaintiff had Helicobacter pylori bacteria (Id.).

2 The ALJs reference to a "cranial CT scan" appears to be a typographical error because he cites the cranial MRI
report in the record (Tr. 18 citing Exhibit 18F at p. 27).

9

Additionally, Dr. Cross observed that Plaintiff had a normal esophagus, an intact gastro
esophageal junction, a normal duodenum, but her stomach had moderate to severe gastritis
(inflamed stomach lining) (Id.). Dr. Cross prescribed a proton pump inhibitor (“PPI”) (Protonix
40 mg twice daily) to reduce the gastric acid production in her stomach and indicated that he would
prescribe an antibiotic if the biopsy was positive for Helicobacter pylori bacteria (Tr. 488, 499,
510). Although the lab and pathology reports were negative for Helicobacter pylori (Tr. 480,
509), Dr. Cross’ treatment note indicates Plaintiff was H. pylori positive and that antibiotics were
prescribed to treat the bacterial infection in Plaintiff’s stomach (Tr. 506). On January 26, 2014,
Plaintiff advised Dr. Cross that she continued to experience epigastric pain, acid reflux, and nausea
(Tr. 504).
On January 13, 2014, a gallbladder sonogram revealed a mass like density in the left kidney
(Tr. 508). On January 31, 2014, a CT scan of the abdomen was performed with and without IV
contrast to assess the mass in the left kidney that had been revealed during the sonogram (Tr.
495-96). The CT scan revealed bilateral renal cysts with a large cyst in the mid to upper pole of
the left kidney measuring 4.9 x 5.1 cm, and at least two if not three cysts were seen in the right
kidney in the mid-posterior aspect (Id.).
On February 19, 2014, Dr. Cross performed a colonoscopy that revealed essentially normal
results with the exception of proctitis in the rectum (Tr. 501). Proctitis is an inflammation of the
lining of the rectum.3
The ALJ acknowledged Plaintiff’s complaints regarding kidney problems as well as
medical evidence showing the presence of renal cysts (Tr. 18-19). However, the ALJ observed

3 http://www.mayoclinic.org/diseases-conditions/proctitis/basics/definition/con-20027855.

10

there was no evidence in the record of any hospitalizations or even outpatient specialist treatment
related to kidney problems (Id.). As a result, the ALJ found no evidence of a severe impairment
with regard to Plaintiff’s kidneys (Id.). The undersigned concludes that the ALJ’s findings, at the
second step, regarding Plaintiff’s kidney problems are supported by substantial evidence in the
record and comport with applicable law.
The ALJ noted that Plaintiff had reported a history of irritable bowel syndrome during her
October 2012 consultative examination (Tr. 19). Due to the absence of any corresponding
treatment records, the ALJ rejected Plaintiff’s assertion and found no evidence to support irritable
bowel syndrome as a medically determinable impairment (Id.). There is no indication in Dr.
Cross’ records that plaintiff was diagnosed with irritable bowel syndrome.

Therefore, the

undersigned concludes that the ALJ’s findings at the second step, regarding Plaintiff’s purported
irritable bowel syndrome are supported by substantial evidence in the record and comport with
applicable law.
The ALJ observed that Plaintiff complained about significant stomach problems (Tr. 19).
The ALJ acknowledged that testing had revealed moderate gastritis and that Plaintiff tested
positive for a H. pylori bacterial infection (Id.). However, the ALJ noted there was no evidence in
the record indicating that these conditions “more than minimally impact her ability to perform
basic work-related activities and are therefore less than severe in nature” (Id.). The undersigned
concludes that the ALJs findings at the second step, regarding plaintiff’s stomach problems are
supported by substantial evidence in the record and comport with applicable law. In sum, at the

11

second step, substantial evidence in the record supports the ALJ’s finding that Plaintiff failed to
demonstrate her vertigo and stomach problems are “severe” impairments within the meaning of
the regulations.
Assuming, arguendo, that substantial evidence did not support the ALJ’s findings with
regard to Plaintiff’s vertigo and stomach problems, that alone would be an insufficient basis to
reverse and remand the ALJ’s decision.

See Maziarz, 837 F.2d at 244.

So long as an

Administrative Law Judge finds that other impairments are severe, continues on with the
sequential evaluation process, and considers all of the claimant’s impairments in the remaining
steps, the error is harmless. See Maziarz, 837 F.2d at 244; Mish v. Comm’r of Soc. Sec., No.
1:09-CV-753, 2011 WL 836750, at *1-2 (W.D. Mich. Mar. 4, 2011); Stephens v. Astrue, No.
09-55-JBC, 2010 WL 1368891, at *2 (E.D. Ky. Mar. 31, 2010); Meadows v. Comm'r of Soc. Sec.,
No. 1:07cv1010, 2008 WL 4911243, at *12-13 (S.D. Ohio Nov.13, 2008); Jamison v. Comm’r of
Soc. Sec., No. 1:07-CV-152, 2008 WL 2795740, at *8-9 (S.D. Ohio July 18, 2008); Tuck v.
Astrue, No. 1:07-CV-00084-EHJ, 2008 WL 474411, at *3 (W.D. Ky. Feb. 19, 2008).
Here, the ALJ found that Plaintiff’s obesity and lumbar degenerative disc disease are
“severe” impairments (Tr. 17), and continued with the sequential evaluation process (Tr. 18-23).
The decision clearly indicates that the ALJ considered Plaintiff’s vertigo and stomach problems in
the remaining steps in the sequential evaluation process (Id.). As mentioned above, the ALJ
found Plaintiff’s vertigo was a “nonsevere” impairment (Tr. 18). Nonetheless, to accommodate
any residuals that may be associated with vertigo, the ALJ included within the residual functional

12

capacity assessment the environmental limitation that Plaintiff “can tolerate no more than
concentrated exposure to vibration and no more than moderate exposure to workplace hazards”
(Tr. 18, 21, 22).
In the context of finding Plaintiff’s stomach problems are “nonsevere”, the ALJ
acknowledged but discounted Plaintiff’s subjective complaints (Tr. 18-21).

While Plaintiff

argues her subjective complaints are supported by the medical evidence, the undersigned notes
that much of what she has cited is her own subjective complaints to the physicians, not objective
medical evidence.

While Plaintiff has cited some objective medical evidence, it does not

substantiate her claim that the ALJ should have included physical limitations in the residual
functional capacity assessment. For example, although Dr. Cox diagnosed gastritis and an H.
pylori bacterial infection in Plaintiff’s stomach, Dr. Cox did not articulate any physical limitations
caused by these conditions. Rather, Dr. Cox merely treated these conditions with a prescription
of antibiotics and a PPI. Further, there is no medical opinion in the record indicating the renal
cysts on Plaintiff’s kidneys would impose any type of physical limitation on Plaintiff. Clearly,
substantial evidence in the record supports the ALJ’s findings regarding Plaintiff’s subjective
complaints about her stomach problems. Therefore, the ALJ’s decision not to include Plaintiff’s
subjective complaints about her stomach problems within the residual functional capacity
assessment comports with applicable law. In sum, Plaintiff is not entitled to relief under the
holding in Maziarz.

13

B
1. Plaintiff’s Argument
Plaintiff disagrees with Finding No. 7 (DN 14 PageID # 738, 742-43). Specifically,
Finding No. 7 reads as follows:
After careful consideration of the entire record, the undersigned
finds that, since her application for Supplemental Security Income
payments was filed on July 6, 2012, the claimant has had the
residual functional capacity to perform medium work as defined in
20 CFR 404.1567(c) and 416.967(c) except that she cannot climb
ladders, ropes or scaffolds; can perform no more than frequent
balancing, stooping, kneeling, crouching, crawling or climbing of
ramps and stairs. She can tolerate no more than concentrated
exposure to vibration and no more than moderate exposure to
workplace hazards.
(Tr. 21). Plaintiff asserts the ALJ, in making the above residual functional capacity assessment,
failed to consider substantial evidence in the record demonstrating that she has great difficulty in
walking, has serious complaints of dizziness and vertigo, and experiences “severe gastritis” (DN
14 PageID # 738). Additionally, Plaintiff contends that substantial medical evidence in the
record demonstrates her lumbar degenerative disc disease prevents her from performing medium
work (Id.). Plaintiff points out pain treatment records from 2012 reveal that she had “lumbosacral
spondylosis without myelopathy facet arthropathy” and “lumbar or lumbosacral disc
degeneration” (Id. PageID # 742 citing Tr. 262). Plaintiff further points out that June 2012
medical records show her range of motion was restricted with extension, she experienced muscle
spasms in her back, she had a limited range of motion, her back movements were painful, and
tenderness was noted (Id. citing Tr. 228, 271-72). Plaintiff additionally points out that an
objective study in November 2013 revealed “degenerative changes of the thoracic spine” and that
Exhibit 18F reveals multiple notations of chronic back pain by Dr. Brown, Plaintiff’s primary
14

treating physician (Id. citing Tr. 522-579). Plaintiff contends “[d]espite this overwhelming
evidence, the ALJ opined that the claimant could lift 35-40 pounds, which is not based on the
substantial evidence” (Id. PageID # 743).
2. Defendant’s Argument
Defendant contends substantial evidence in the record supports the ALJ’s residual
functional capacity findings with regard to environmental limitations imposed by Plaintiff’s
vertigo and the absence of limitations imposed by Plaintiff’s gastritis (DN 21 PageID # 762).
Defendant points out that the ALJ relied on 3 different medical opinions in the record in making
the residual functional capacity findings (Id.). Defendant notes that the ALJ relied on the opinion
of Dr. Robert Nold, a consultative examiner, who opined that Plaintiff could lift between the 35
and 40 pounds (Id. citing Tr. 212). Defendant observes that the ALJ considered the opinion of Dr.
Amanda Lange, a nonexamining state agency physician, who also opined that Plaintiff could
perform the requirements of medium work (Id. citing Tr. 22, 411-18). Defendant points out that
Dr. Lorber, the medical expert who testified during the administrative hearing, agreed that
Plaintiff’s lumbar spine impairment would somewhat reduce her functional capacity to perform
medium work (Id. PageID # 763 citing Tr. 665). Defendant argues those three medical opinions
constitute substantial evidence that support the ALJ’s finding that Plaintiff has the residual
functional capacity to perform a limited range of medium work despite her degenerative disc
disease (Id.). Additionally, Defendant contends that the ALJ directly address Plaintiff’s lumbar
degenerative disc disease, noting that “imaging studies revealed generally mild abnormalities,
[and] that clinical findings documented no more than tenderness without any indication of
neurological deficits or significantly reduced range of motion” (Id. citing Tr. 22). Further,
15

defendant points out that the ALJ explained there was no opinion from any treating physician
about Plaintiff’s functional capacity (Id. citing Tr. 22).
3. Discussion
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. §§ 404.1545(a), 404.1546, 416.945(a), 416.946. The residual functional capacity
finding is based on a consideration of medical source statements and all other evidence in the case
record about what a claimant can do despite limitations caused by his or her physical and mental
impairments. 20 C.F.R. §§ 404.1529, 404.1545(a), 404.1546, 416.929, 416.945(a), 416.946;
Social Security Ruling 96-5p; Social Security Ruling 96-7p. Thus, in making the residual
functional capacity finding the Administrative Law Judge must necessarily assign weight to the
medical source statements in the record and consider the subjective allegations of the claimant and
make credibility findings. 20 C.F.R. §§ 404.1527(c), 404.1529; Social Security Ruling 96-7p.
In the preceding section, the undersigned concluded that substantial evidence in the record
supports the ALJ’s residual functional capacity findings with regard to the environmental
limitations imposed by Plaintiff’s vertigo and the absence of physical limitations imposed by
Plaintiff’s stomach problems. Therefore, the undersigned need only address Plaintiff’s challenge
to the ALJ’s findings regarding Plaintiff’s ability to walk and perform medium work despite her
diagnosis of lumbar degenerative disc disease.
As previously mentioned, Plaintiff argues that the ALJ failed to consider substantial
evidence in the record showing that Plaintiff has great difficulty walking, and her lumbar
degenerative disc disease prevents her from performing medium work. As articulated, Plaintiff’s
16

argument encourages the Court to review the record and determine whether there is substantial
evidence to support more restrictive physical limitations than what the ALJ found in his residual
functional capacity assessment.

However, an Administrative Law Judge’s decision “is not

subject to reversal merely because substantial evidence would have supported an opposite
decision.” Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (quoting Baker v. Heckler, 730
F.2d 1147, 1149 (8th Cir. 1984)). Under the applicable standard, the Court must determine
whether the ALJ’s findings 4 are supported by “substantial evidence.” ASubstantial 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 & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993)). Thus,
the Court must determine whether substantial evidence in the record supports the challenged
findings in the ALJ’s residual functional capacity assessment.
On October 1, 2012, Dr. Nold performed a consultative physical examination of Plaintiff
(Tr. 209-15). In relevant part, Dr. Nold’s opinion indicated that Plaintiff “should be able to bend
and lift items up to 35 or 40 pounds without much difficulty and her back is probably not a major
problem as long as she avoids very heavy lifting” (Tr. 212). Dr. Lange, a nonexamining state
agency physician, reviewed the medical record on June 12, 2013, and opined that Plaintiff could
perform the requirements of medium work (Tr. 411-18). Additionally, Dr. Lorber testified as a
medical expert during the administrative hearing (Tr. 661-65). Based on his review of all the

4 The Court is limited to determining whether the findings set forth in the final decision of the Commissioner are
supported by Asubstantial evidence.@ 42 U.S.C. § 405(g); Cotton v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993); Wyatt
v. Sec’y of Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). Here, the ALJ’s decision is the final decision
of the Commissioner because the Appeals Council denied Plaintiff’s request for review of the ALJ’s decision. See 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).

17

medical evidence in the record, Dr. Lorber opined that Plaintiff’s lumbar spine impairment would
somewhat reduce her functional capacity to perform medium work (Tr. 665).
The ALJ observed that the record did not contain any treating source opinion regarding
Plaintiff’s physical limitations (Tr. 22). In pertinent part the ALJ’s decision reads as follows:
In the absence of such, I have considered consultative examiner Dr.
Robert Nold, who opined that the claimant should be able to lift at
least 35 to 40 pounds (Exhibit 2F). I have also considered the state
agency rationale [Dr. Lange] contained in Exhibits 1F and 8F
finding the claimant capable of performing a limited range of
medium work, and while I have considered the exacerbating effects
of the claimant’s obesity upon her underlying lumbar disc disease, I
note that imaging studies revealed generally mild abnormalities,
that clinical examinations consistently documented no more than
tenderness without any indication of neurological defects or
significantly reduced range of motion and that the limitation
proposed by Dr. Nold and the state agency are generally consistent
with the longitudinal record. As such, I find that further limitations
are not warranted pursuant to Social Security Ruling 02-1p. I
further note that the environmental limitation regarding exposure to
workplace hazards appropriately accommodates her history of
vertigo, which I previously deemed to be less than severe in nature.
My ultimate assessment is likewise consistent with the medical
expert testimony offered by Dr. Lorber.
(Tr. 22). The ALJ’s finding that Plaintiff can perform a limited range of medium work, despite
her degenerative disc disease, is supported by substantial evidence in the record and fully comports
with applicable law, including the regulations for evaluating consultative and treating physician's
opinions and pain. See 20 C.F.R. §§ 404.1519a-p, 404.1527, 404.1529, 416.919a-p, 416.927,
4416.929.
Plaintiff’s argument did not cite any medical evidence substantiating her subjective
complaint that she has great difficulty with walking. Her testimony during the administrative
hearing merely indicates that her legs give out on her if she stands or walks for more than 30
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minutes (Tr. 677). The ALJ’s decision does not expressly address Plaintiff’s purported difficulty
walking. However, the ALJ did find that Plaintiff can perform a limited range of medium work
(Tr. 21) which “requires standing or walking, off and on, for a total of approximately 6 hours in an
8–hour workday . . .” See Social Security Ruling 83-10. Thus, it can be inferred from the ALJ’s
residual functional capacity finding that the ALJ discounted Plaintiff’s subjective statement about
her difficulty with walking.
In assessing Plaintiff=s residual functional capacity the ALJ must necessarily consider her
subjective allegations and make credibility findings. See 20 C.F.R. §§ 404.1529, 416.929; Social
Security Ruling 96-7p. Plaintiff's statement that she is experiencing pain or other symptoms will
not, taken alone, establish that 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 and other symptoms alleged.

See 20 C.F.R. §§ 404.1529(a), 416.929(a).

In

determining whether Plaintiff suffers from debilitating pain and other symptoms, the two-part test
set forth in Duncan v. Sec’y of Health & Human Servs., 801 F.2d 847, 853 (6th Cir. 1986), applies.
In compliance with the first part of the test, the ALJ examined the record and determined is
objective medical evidence of underlying medical conditions. Then the ALJ determined the
objectively established medical conditions were not of such severity that they could reasonably be
expected to produce the alleged symptoms to the degree alleged by Plaintiff (Tr. 22). See Id.
Inasmuch as the purported symptoms suggested impairments of greater severity than could be
shown by objective medical evidence, the ALJ appropriately considered other information and
factors that may be relevant to the degree of symptoms alleged. See 20 C.F.R. §§ 404.1529(c)(3),
416.929(c)(3). For example, Plaintiff’s purported inability to walk is inconsistent with her own
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treating source consistently encouraging Plaintiff walk and exercise to lose weight (Tr. 18). See
20 C.F.R. §§ 404.1529(c)(4) and 416.929(c)(4). The undersigned concludes that the ALJ's
findings regarding the credibility of Plaintiff's purported limitations are supported by substantial
evidence and fully comport with applicable law. See 20 C.F.R. §§ 404.1529, 416.929.
C
Plaintiff also disagrees with Finding Nos. 8 and 9 because she believes that the ALJ’s
residual functional capacity assessment is not supported by substantial evidence in the record (DN
14 PageID # 738). For the reasons set forth above, substantial evidence in the record supports the
ALJ’s residual functional capacity assessment.

Further, the vocational expert’s testimony

constitutes substantial evidence to support Finding Nos. 8 and 9 because the testimony was based
on a hypothetical question that accurately portrayed Plaintiff’s physical and mental impairments.
Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987).

ORDER
IT IS HEREBY ORDERED that the final decision of the Commissioner is AFFIRMED.
IT IS FURTHER ORDERED that judgment is granted for the Commissioner.

March 10, 2017

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