Riggs v. Commissioner of Social Security
Filing
13
MEMORANDUM OPINION & ORDER by Magistrate Judge H. Brent Brennenstuhl on 2/6/14; The final decision of the Commissioner is AFFIRMED. This is a final and appealable Order and there is no just cause for delay.cc:counsel (JBM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:13CV-00068-JHM
ELEANOR RIGGS
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 Eleanor Riggs (“Plaintiff”) seeking judicial
review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the Plaintiff
(DN 9) and Defendant (DN 12) have filed a Fact and Law Summary. Additionally, the Plaintiff has
filed a motion for summary judgment (DN 10) and Defendant has filed a response (DN 12).
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 11). By Order entered September 3,
2013 (DN 6), 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.
FINDINGS OF FACT
Plaintiff filed an application for Supplemental Security Income benefits on June 30, 2010
(Tr. 54, 155, 185). Plaintiff alleged that she became disabled on June 28, 2007, as a result of her
lower back, diabetes, and rapid heart rate (Tr. 185, 211). On November 15, 2011, Administrative
Law Judge Scott M. Staller (“ALJ”) conducted a video hearing from Baltimore, Maryland (Tr. 9).
Plaintiff appeared in Bowling Green, Kentucky, and was represented by attorney Debra L. Broz (Tr.
9, 54). Also participating and testifying was Pat Green, a vocational expert (Tr. 9, 54).
In a decision dated February 15, 2012, the ALJ evaluated this adult disability claim pursuant
to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 54-62). At the
first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since June 30, 2010,
the application date (Tr. 56). At the second step, the ALJ determined that Plaintiff’s degenerative
disc disease of the lumbar spine, status post fracture of the sacrum, asthma, and obesity are “severe”
impairments within the meaning of the regulations (Tr. 56). Notably, at the second step, the ALJ
also determined that Plaintiff’s hypertension, rapid heart rate, and depression are “non-severe”
impairments within the meaning of the regulations (Tr. 56). 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. 57).
At the fourth step, the ALJ found Plaintiff has the residual functional capacity to perform less
than a full range of light work because she requires a job that will allow her to sit or stand
alternatively, but she would not have to leave the workstation; she may only occasionally climb
ramps or stairs; never climb ladders, ropes, or scaffolds; and only occasionally balance, stoop, kneel,
crouch, or crawl; she should avoid concentrated exposure to operational control of moving
machinery and unprotected heights; and avoid all concentrated exposure to wetness, humidity,
extreme cold, and extreme heat (Tr. 57). Additionally, the ALJ found that Plaintiff is unable to
perform any of her past relevant work (Tr. 60).
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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. 60-61). The ALJ found that Plaintiff is capable of performing a significant number of jobs that
exist in the national economy (Tr. 60-61). Therefore, the ALJ concluded that Plaintiff has not been
under a “disability,” as defined in the Social Security Act, from June 30, 2010, through the date of
the decision, February 15, 2012 (Tr. 61).
Plaintiff timely filed a request for the Appeals Council to review the ALJ’s decision (Tr. 7).
The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision (Tr. 1-3, 4).
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
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
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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.
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. Section 405(g);
Cotton v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993); Wyatt v. Secretary of Health and Human
Services, 974 F.2d 680, 683 (6th Cir. 1992), and whether the correct legal standards were applied.
Landsaw v. Secretary of Health and Human Services, 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.”
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Cotton, 2 F.3d at 695 (quoting Casey v. Secretary of Health and Human Serverices, 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. Secretary
of Health and Human Services, 964 F.2d 524, 528 (6th Cir. 1992) (quoting Garner v. Heckler, 745
F.2d 383, 387 (6th Cir. 1984)).
Plaintiff disagrees with Finding No. 2 which identifies her severe impairments (DN 9, Fact
and Law Summary at Page 2; DN 10, Summary Judgment Motion at Pages 4-6). Plaintiff asserts
the ALJ should have found she suffers from an additional severe impairment, major depression and
anxiety (DN 9, Fact and Law Summary at Page 2; DN 10, Summary Judgment Motion at Pages 4-6).
In support of her position, Plaintiff cites a Communicare treatment note prepared by a licensed
psychological associate, Peg Ferguson, M.A. and L.P.A. (Tr. 728). The note indicates Plaintiff
suffers from anxiety and depression (Tr. 728). Essentially, Plaintiff claims the ALJ overlooked this
treatment note and failed to follow the applicable regulations (DN 10, Summary Judgment Motion
at Pages 4-6).
Defendant argues that substantial evidence supports the ALJ’s finding (DN 12, Fact and Law
Summary at Pages 4-6). Defendant asserts the assessment by Craig Cabezas, Ph.D. (Tr. 569), shows
Plaintiff does not have a severe impairment of depression (DN 12, Fact and Law Summary at Pages
4-6).
Plaintiff’s argument fails to appreciate that only “acceptable medical sources” are qualified
to diagnose a medical condition and render a “medical opinion” about the nature and severity of the
impairment, including limitations or restrictions imposed by the impairment. 20 C.F.R. §§
416.913(a), 416.927(a)(2). Licensed physicians (medical osteopathic doctors), licensed or certified
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psychologists, licensed optometrists, licensed podiatrists, and qualified speech-language pathologists
are classified as “acceptable medical sources.” 20 C.F.R. § 416.913(a)(1)-(5) (emphasis added).
Under the regulations Ms. Ferguson, a licensed psychological associate, is not qualified to diagnose
Plaintiff with depression because she is not classified as an “acceptable medical source.” This is the
reason why the ALJ discounted the note from a patient care assistant indicating Plaintiff is depressed
(Tr. 56, 748). Notably, the consultative examiner, Craig S. Cabezas, Ph.D., is qualified to render
a diagnostic opinion because he is a licensed psychologist (Tr. 565-570). However, Dr. Cabezas’
diagnostic impression at Axis I was “[n]o diagnosis” (Tr. 569-570). This means Plaintiff can not
demonstrate she has a “medically determinable” mental condition that satisfies the duration
requirement (20 C.F.R. §§ 404.1509, 416.909) and “significantly 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 v. Bowen, 880 F.2d 860, 863 (6th Cir.
1988) (per curiam). In sum, Plaintiff failed to demonstrate she has a “severe” mental impairment.
More importantly, according to the regulations, upon determining that a claimant has one
severe impairment, the Administrative Law Judge must continue with the remaining steps in the
disability evaluation outlined above. 20 C.F.R. §§ 416.920(a)(4)(ii) and (c). Here, the ALJ found
that Plaintiff suffered from the severe impairments of degenerative disc disease of the lumbar spine,
status post fracture of the sacrum, asthma, and obesity (Tr. 56). Accordingly, the ALJ continued
with the remaining steps in the disability determination. Because the ALJ could consider the
limitations imposed by Plaintiff’s mental impairments in determining whether she retained sufficient
residual functional capacity to allow her to return to her past relevant work and to other jobs in the
national economy (Tr. 57-61), the ALJ's failure to find that Plaintiff’s mental impairments are
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“severe” within the meaning of the regulations could not constitute reversible error. Maziarz v.
Secretary of Health & Human Services, 837 F.2d 240, 244 (6th Cir. 1987).
Next, Plaintiff disagrees with Finding No. 4 because her chronic pain and the limitations
expressed by two treating and one examining physician show she is unable to perform even
sedentary work (DN 9, Fact and Law Summary at Page 2; DN 10, Summary Judgment Motion at
Pages 6-8). Plaintiff accuses the ALJ of substituting his own opinion for the medical opinions from
Dr. Djurasovic (Tr. 595-604)1, Dr. McClure (Tr. 646)2, and Dr. Hueker (Tr. 560-561)3 (DN 9, Fact
and Law Summary at Page 2; DN 10, Summary Judgment Motion at Pages 6-8). Additionally,
Plaintiff argues the opinions of her treating physicans, Drs. Djurasovic and McClure, “should be
given greater weight than non-treating physicians” (DN 10, Motion for Summary Judgment at Pages
8-10). Further, Plaintiff asserts the ALJ failed to set forth good reasons for discounting their
opinions (DN 10, Motion for Summary Judgment at Pages 8-10). Finally, Plaintiff asserts although
the ALJ indicated he was assigning great weight to the opinion of her treating physician, Dr.
Harping, the ALJ actually substituted his own opinion that Plaintiff can lift 20 pounds for Dr.
Harping’s medical opinion that Plaintiff can lift no more than 15 pounds (DN 10, Motion for
Summary Judgment at Page 10).
1
Dr. Djurasovic, a treating orthopaedic surgeon, expressed a 10 pound lifting restriction,
a 2 hour walking restriction, an alternate between sitting and standing restriction, and a never
stoop, kneel, crouch or crawl restriction (Tr. 595-604).
2
Dr. McClure, a treating family physician, expressed a 10 pound lifting restriction (Tr.
646).
3
Dr. Hueker, an examining physician, expressed a 20 minute standing restriction, a 100
foot walking restriction, and a gallon of milk bilaterally lifting restriction (Tr. 560-561).
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Defendant argues that substantial evidence in the record supports the ALJ’s residual
functional capacity finding that Plaintiff can perform less than a full range of light work (DN 12,
Fact and Law Summary at Pages 6-8). Defendant asserts that substantial evidence also supports the
ALJ’s evaluation of the opinions of Plaintiff’s treating physicians (Drs. Djurasovic, McClure) and
the examining physician (Dr. Huecker) (DN 12, Fact and Law Summary at Pages 8-12). Defendant
contends the ALJ concluded based on the totality of the evidence that Plaintiff could occasionally
lift up to 20 pounds as opposed to improperly substituting his opinion for Dr. Harping’s opinion that
Plaintiff could do no heavy lifting over 15 pounds (DN 12, Fact and Law Summary at Pages 12-13).
By way of background, Finding No. 4 addresses Plaintiff’s residual functional capacity (Tr.
57). The residual functional capacity finding is the ALJ’s ultimate determination of what Plaintiff
can still do despite her physical limitations (Tr. 57). 20 C.F.R. §§ 416.945(a), 416.946. The ALJ’s
residual functional capacity finding was appropriately based on a consideration of medical source
statements and all other evidence in the case record about what Plaintiff can do despite limitations
caused by her physical impairments (Tr. 57-60). 20 C.F.R. §§ 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 ALJ assigned weight to the medical source statements in the record and
considered Plaintiff’s subjective allegations and made credibility findings (Tr. 57-60). 20 C.F.R.
§§ 416.927(c), 416.929; Social Security Ruling 96-7p.
The Court will first address Plaintiff’s argument that the ALJ failed to give appropriate
consideration and weight to the opinions of her treating physicians. Treating source opinions must
receive “controlling weight” when two conditions are met: (1) the medical opinion “is wellsupported by medically acceptable clinical and laboratory diagnostic techniques”; and (2) the
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medical opinion “is not inconsistent with other substantial evidence in ...[the] case record.” 20
C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Gayheart v. Commissioner, 710 F.3d 365, 376 (6th Cir.
2013). If the Administrative Law Judge does not give the treating physician’s medical opinion
controlling weight, “then the opinion is weighed based on the length, frequency, nature, and extent
of the treating relationship, ... as well as the treating source’s area of specialty and the degree to
which the opinion is consistent with the record as a whole and is supported by relevant evidence.
Id. (citing 20 C.F.R. § 404. 1527(c)(2)-(6)). Further, the Administrative Law Judge must provide
“good reasons” for the weight given to the treating physician’s opinion. 20 C.F.R. § 404.1527(c)(2);
Social Security Ruling 96-2p; Gayheart, 710 F.3d at 376; Wilson v. Commissioner of Social
Security, 378 F.3d 541, 545-546 (6th Cir. 2004). Notably, “[t]hese reasons must be ‘supported by
the evidence in the case record, and must be sufficiently specific to make clear to any subsequent
reviewers the weight the adjudicator gave to the treating source’s medical opinion and the reasons
for that weight.’” Gayheart, 710 F.3d at 376 (citing Social Security Ruling 96-2p, 1996 WL 374188,
at *5 (Soc. Sec. Admin. July 2, 1996)). “This procedural requirement ‘ensures that the ALJ applies
the treating physician rule and permits meaningful review of the ALJ’s application of the rule.’”
Gayheart, 710 F.3d at 376 (quoting Wilson, 378 F.3d 544).
The ALJ provided a thorough summary of the medical evidence in the record before
addressing the weight assigned to the medical opinions (Tr. 58-60). The ALJ concluded that
objective testing only suggested mild back impairments (Tr. 59). Further, the ALJ observed while
Plaintiff cannot return to heavy-duty work the medical records indicate she can return to less
strenuous work activity (Tr. 59). The ALJ then discussed the weight he accorded to the medical
opinion of Dr. Harping, a treating physician (Tr. 59). Specifically, the decision reads as follows:
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As for the opinion evidence, in March of 2008, Dr. John Harping
found the claimant should be restricted to light duty and no heavy
lifting over 15 lbs. (Exhibit 14F, p. 96). The undersigned assigns
great weight to Dr. Harping’s opinion as a treating physician familiar
with the claimant. However, based on the totality of the evidence the
undersigned finds that the claimant can occasionally lift up to 20 lbs.
(Tr. 59). Although the ALJ’s explanation is brief, it does set forth “good reasons” why Dr.
Harping’s opinion failed to meet the second prong of the “controlling weight” test. Specifically, the
ALJ found Dr. Harping’s weight lifting restriction was inconsistent with substantial evidence in the
record that suggested mild back impairments (Tr. 58-60). The ALJ also expressed “good reasons”
for discounting Dr. Harping’s 15 pound lifting restriction. Specifically, the ALJ found the
restriction inconsistent with the totality of the evidence in the record. In sum, the ALJ’s findings
are supported by substantial evidence in the record and comport with applicable law. Notably, if
the ALJ had included the 15 pound weight restriction in his residual functional capacity finding, the
result at the fifth step would not have changed because the vocational expert identified jobs at the
sedentary level that exist in significant numbers in the national economy (Tr. 23-24).
Plaintiff’s treating orthopaedic surgeon, Dr. Djurasovic, rendered two opinions. The ALJ’s
discussion regarding the weight accorded to Dr. Djurasovic’s opinions reads as follows:
In November of 2010, Dr. Mladen Djurasovic concluded that due to
the claimant’s severe lower back pain she could only lift less than 10
lbs. frequently; stand or walk at least 2 hours in an 8-hour workday;
and she must periodically alternate between sitting and standing. In
February of 2011, Dr. Djurasovic concluded that the claimant was not
able to work, and she required a cane for ambulation (Exhibit 29F).
The undersigned assigns little weight to the [sic] Dr. Djurasovic’s
opinion because his opinion is not supported by the objective
evidence in the record. The objective evidence shows mild back
problems, negative straight leg raising tests and 5/5 motor strength in
both of the claimant’s legs. Dr. Djurasovic has also noted on
numerous occasions that the claimant did not appear to be in any
distress.
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(Tr. 60). Although the ALJ’s explanation is brief, it does set forth “good reasons” why Dr.
Djurasovic’s restrictions failed to meet both prongs of the “controlling weight” test. Specifically,
the ALJ found Dr. Djurasovic’s opinion was not well-supported by the objective evidence (MRIs,
CT scans, x-rays, and observations on examination) discussed in the preceding paragraphs and the
opinion was inconsistent with what is set forth in the doctor’s own treatment notes. Additionally,
the ALJ expressed “good reasons” for assigning “little weight” to Dr. Djurasovic’s opinion.
Specifically, the ALJ concluded the limitations were not supported by the objective evidence in the
record and the doctor’s own treatment notes. Moreover, the undersigned observes that Dr.
Djurasovic’s opinion is not consistent with Dr. Harping’s opinion. In sum, the ALJ’s findings are
supported by substantial evidence in the record and comport with applicable law.
Another treating physician, Dr. McClure, rendered an opinion. The ALJ’s discussion
regarding the weight accorded to Dr. McClure’s medical opinion reads as follows:
In January of 2011, Dr. Robert McClure found that the claimant was
limited to only occasionally lifting 10 lbs. The claimant required a
hand-held assistive device, and she must avoid extreme cold, heat, or
wetness (Exhibit 28F). The undersigned assigns some weight to Dr.
McClure’s opinion on the claimant’s limitations regarding her
asthma. However, the undersigned assigns little weight to his
opinion on the claimant’s other limitations because it is inconsistent
with the objective evidence of record for the same reasons cited in the
preceding paragraph.
(Tr. 60). The ALJ did not assign controlling weight because Dr. McClure’s opinion was not wellsupported by the objective evidence (MRIs, CT scans, x-rays, and observations on examination)
discussed in the preceding paragraphs. Additionally, the ALJ expressed “good reasons” for
assigning “little weight” to all of the opinions expressed by Dr. McClure, with the exception of the
asthma limitations which received some weight. Specifically, the ALJ concluded the limitations
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were not supported by the objective evidence in the record. Further, the undersigned observes the
discounted parts of Dr. McClure’s opinion are inconsistent with Dr. Harping’s opinion. In sum, the
ALJ’s findings are supported by substantial evidence in the record and comport with applicable law.
Finally, the ALJ discussed the consultative physical examination performed by Dr. Huecker
in August of 2010 (Tr. 58). Further, the ALJ accurately summarized Dr. Huecker’s observations on
examination (Tr. 58, 560). However, the ALJ failed to mention Dr. Huecker’s medical source
statement (Tr. 58). The medical source statement reads as follows:
No limitations with sitting, traveling, handling, speaking, listening,
reasoning or social interaction. She can stand 20 minutes at a time.
Walk 100 feet at a time before her back pain stops her. With lifting
and carrying objects, her weight restriction is one gallon of milk
bilaterally. She has attempted more than this and finds that it causes
severe back pain.
(Tr. 560-561). Certainly, the ALJ should have considered this medical opinion. 20 C.F.R. §
416.927(c). Undoubtedly, the ALJ would have discounted the restrictions in the medical statement
because they appear to be based on Plaintiff’s comments to Dr. Huecker, instead of objective testing.
Further, the ALJ would have concluded they are inconsistent with the totality of the evidence,
including Dr. Harping’s opinion. Notably, Dr. Huecker’s lifting restriction indicates Plaintiff can
lift about nine pounds with each arm.4 This may mean Dr. Huecker believed Plaintiff could lift
about 18 pounds with both arms. If this is what Dr. Huecker intended then his lifting restriction and
the 15 pound lifting restriction expressed by Dr. Harping would be similar. There is no way telling
whether the ALJ considered this possibility when he found Plaintiff can occasionally lift up to 20
pounds (Tr. 59). Regardless, if the ALJ had included a 15 pound weight restriction in his residual
4
A gallon of milk weighs about nine pounds. Dairy Facts, http://www.ansc.purdue.edu/faen/
dairy%20facts.html.
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functional capacity finding, the result at the fifth step would not have changed because the
vocational expert identified jobs at the sedentary level that exist in significant numbers in the
national economy (Tr. 23-24). In sum, the ALJ’s omission was harmless.
Certainly, Administrative Law Judges should not substitute their own judgment for a
physician’s un-controverted medical opinion. Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999); see
also Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000); and Lennon v. Apfel, 191 F.Supp.2d 968,
977 (W.D. Tenn. 2001). Here, the ALJ relied on other medical evidence or authority in the record
in reaching his residual functional capacity findings (Tr. 58-60). Thus, there is no merit to
Plaintiff’s accusation that the ALJ substituted his own judgment for the opinions of the treating and
examining physicians.
Next, Plaintiff disagrees with the ALJ’s credibility assessment regarding her subjective
complaints of disabling chronic pain. Notably, Plaintiff’s subjective statements that she is
experiencing pain and 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. 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. Secretary of Health and Human Serv's., 801 F.2d
847, 853 (6th Cir. 1986), applies.
First, an 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 condition; or (2) whether the objectively established medical condition is of such severity
13
that it can reasonably be expected to produce the alleged disabling pain." Duncan, 801 F.2d at 853.
When the reported pain and other 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).
Here, the ALJ concluded the objective medical evidence did not confirm the severity of the
alleged pain and other symptoms arising from Plaintiff’s back condition (Tr. 58-59). Therefore, the
ALJ considered the level of Plaintiff’s daily activities in assessing the extent to which pain and other
symptoms are of disabling severity (Tr. 58-59). 20 C.F.R. § 416.929(c)(3)(i); Bogle v. Sullivan, 998
F.2d 342, 348 (6th Cir. 1993); Blacha v. Secretary of Health and Human Serv's., 927 F.2d 228, 231
(6th Cir. 1990). Further, the ALJ considered whether there are any inconsistencies in the evidence
and the extent to which there are any conflicts between her statements and the rest of the evidence
(Tr. 58-59). 20 C.F.R. § 416.929(c)(4). Additionally, the ALJ looked the medication used to
alleviate the alleged pain and other symptoms (Tr. 58-59). 20 C.F.R. §§ 404.1529(c)(3)(iv),
416.929(c)(3)(iv).
The ALJ found from the medical record and Plaintiff's testimony that Plaintiff does not suffer
pain to the extent she testified. In the absence of detailed corroborating evidence of Plaintiff's
subjective complaints, it becomes the duty of the ALJ to resolve the issue of Plaintiff's credibility.
Because tolerance of pain is a highly individualized matter, and a determination of disability based
on pain depends, of necessity, largely on the credibility of the claimant, the conclusion of the
Administrative Law Judge, who has the opportunity to observe the claimant's demeanor, "should not
be discharged lightly." Houston v. Secretary of Health and Human Serv's., 736 F.2d 365, 367 (6th
14
Cir. 1984) (citing Beavers v. Secretary of Health, Educ. and Welfare, 577 F.2d 383 (6th Cir. 1978)).
The undersigned concludes that the ALJ's findings regarding Plaintiff's credibility are supported by
substantial evidence and fully comport with applicable law. Additionally, the undersigned
concludes that the ALJ’s residual functional capacity finding is supported by substantial evidence
in the record and comports with applicable law.
Next, Plaintiff disagrees with Finding No. 8 (DN 9, Fact and Law Summary at Page 2).
Finding No. 8 reads as follows:
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 8241 and 20 CFR Part 404, Subpart P, Appendix 2).
(DN 60) (emphasis omitted). Notably, Plaintiff does not explain in her memorandum why she
disagrees with this finding (DN 10, Motion for Summary Judgment). It is well-established that
“issues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.” United States v. Layne, 192 F.3d 556, 566 (6th Cir.1999)
(quoting McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir.1997)); see also Brindley v.
McCullen, 61 F.3d 507, 509 (6th Cir.1995) (observing that “[w]e consider issues not fully developed
and argued to be waived.”); Rice v. Commissioner of Social Security, 2006 WL 463859, *2 (6th Cir.
2006). Plaintiff’s dispute with Finding No. 8 is deemed waived because she has not set forth some
argument in support of her position.
Plaintiff disagrees with Finding Nos. 9 and 10 (DN 9, Fact and Law Summary at Page 2).
Finding No. 9 indicates, after considering Plaintiff’s age, education, work experience, residual
functional capacity, and the vocational expert’s testimony, the ALJ finds there are jobs that exist in
15
significant numbers in the national economy that Plaintiff can perform (Tr. 60). Finding No. 10 sets
forth the ALJ’s conclusion that Plaintiff has not been under a disability, as defined in the Social
Security Act, since June 30, 2010, the date the application was filed (Tr. 61). Again, Plaintiff does
not explain in her memorandum why she disagrees with these findings. To the extent Plaintiff
challenges these findings based on her earlier arguments, the undersigned has found no merit to her
earlier arguments and, therefore, her challenges here must also fail. To the extent Plaintiff has failed
to provide argument in support of her challenges to Finding Nos. 9 and 10, the undersigned
concludes she has waived the challenges due to a failure to set forth some supporting argument.
ORDER
For the foregoing reasons, IT IS HEREBY ORDERED that the final decision of the
Commissioner is AFFIRMED. This is a final and appealable Order and there is no just cause for
February 6, 2014
Copies:
Counsel
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