Rearden v. Commissioner of Social Security

Filing 20

MEMORANDUM OPINION & ORDER by Magistrate Judge H. Brent Brennenstuhl on 4/21/2016: 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. 4:15CV-00070-HBB

MELISSA REARDEN

PLAINTIFF

VS.

CAROLYN W. COLVIN, Acting
Commissioner of Social Security

DEFENDANT

MEMORANDUM OPINION
AND ORDER
BACKGROUND
The Commissioner of Social Security denied Melissa Rearden’s application for disability
insurance benefits. Reardon seeks judicial review of the Commissioner’s final decision pursuant
to 42 U.S.C. § 405(g). Both Rearden (DN 14-1) and the Commissioner (DN 19) 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 11).

FINDINGS OF FACT
Melissa Rearden is 52 years old, has a twelfth grade education, and lives in Kirksville,
Kentucky, with her husband (Tr. 44). In the past, Rearden has worked as Captain of the Catering
Department at the Executive Inn and as a machine operator at Omnico, Inc. (Tr. 45-46). In 2010,
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Rearden briefly collected unemployment before getting a job at Marathon for two months (Tr.
44-45). She stopped working at Marathon because her neuropathy got worse and interfered with
her daily activities (Tr. 51). Rearden testified that she does laundry, cleans the house, and
prepares meals (Tr. 57).
Rearden applied for disability insurance benefits (“DIB”) under Title II, claiming that she
became disabled on October 7, 2010, as a result of diabetes type 2 (Tr. 188, 214). Her
application was denied initially and on reconsideration (Tr. 76, 93).

Administrative Law Judge

Marci Eaton (“ALJ”) conducted a hearing in Paducah, Kentucky, on August 7, 2013 (Tr. 39).
Rearden attended the hearing with her attorney, Bradley Rhoads (Id.). Stephanie Barnes, an
impartial vocational expert, also appeared at the hearing (Id.). The ALJ issued an unfavorable
decision on November 8, 2013 (Tr. 33).
The ALJ applied the traditional five-step sequential analysis promulgated by the
Commissioner, 20 C.F.R § 404.1520; Kyle v. Comm’r of Soc. Sec., 609 F.3d 847, 855 (6th Cir.
2010), and found as follows. First, Rearden has not engaged in substantial gainful activity since
October 7, 2010, her alleged onset date (Tr. 22). Second, Rearden has the severe impairments of
“diabetes mellitus, peripheral neuropathy, degenerative disc disease, osteoarthritis, chronic
obstructive pulmonary disease (COPD), and affective disorder” (Id.). Third, none of Rearden’s
impairments or combination of impairments meets or medically equals the severity of a listed
impairment from 20 C.F.R. Pt. 404, Subpt. P, App’x 1 (Id.). Fourth, Rearden has the residual
functional capacity (“RFC”) to perform light work with the following specifications:
[S]he can frequently climb ramps and stairs, but only occasionally
climb ladders, ropes and scaffolds. She can occasionally balance,
stoop, kneel, crouch, and crawl. She should avoid concentrated
exposure to vibrating equipment, moving machinery, and
unprotected heights.
She is limited to understanding,
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remembering, and carrying out short, simple, one-to-three step
instructions. She has the ability to make simple work-related
judgment. She can have frequent interaction with the public. She
should avoid fast-paced work and work with excessive noise.
(Tr. 24). Additionally, Rearden is unable to perform any of her past relevant work (Tr. 31). Fifth
and finally, considering Rearden’s age, education, work experience, and RFC, there are jobs that
exist in significant numbers in the national economy that the claimant can perform (Tr. 32).
Rearden appealed the ALJ’s decision (Tr. 15). The Appeals Council declined review (Tr.
1). At that point, the denial became the final decision of the Commissioner, and Rearden
appealed to this Court (DN 1).

CONCLUSIONS OF LAW
A. Standard of Review
When reviewing the Administrative Law Judge’s decision to deny disability benefits, the
Court may “not try the case de novo, nor resolve conflicts in the evidence, nor decide questions of
credibility.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)
(citations omitted). Instead, the Court’s review of the Administrative Law Judge’s decision is
limited to an inquiry as to whether the Administrative Law Judge’s findings were supported by
substantial evidence, 42 U.S.C. § 405(g); Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001)
(citations omitted), and whether the Administrative Law Judge employed the proper legal
standards in reaching her conclusion. See Landsaw v. Sec’y of Health & 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 v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993).
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B. Finding No. 3
Rearden argues that the ALJ failed to recognize all of her severe impairments, including
her heart condition, obesity, hypertension, hyperthyroidism, and COPD (DN 14-1, at p. 8).
Although the ALJ didn’t label these conditions as severe, the Commissioner responds that the ALJ
adequately assessed whether these conditions would cause any limitations on her ability to work
(DN 19, at p. 5).
In Finding No. 3, the ALJ found Rearden has the severe impairments of diabetes mellitus,
peripheral neuropathy, degenerative disc disease, osteoarthritis, chronic obstructive pulmonary
disease, and affective disorder (Tr. 22). Upon determining that a claimant suffers from one severe
impairment, the Administrative Law Judge must consider all impairments, severe and non-severe,
in the remaining steps. Pompa v. Comm’r of Soc. Sec., 73 F. App’x 801, 803 (6th Cir. 2003)
(citing 20 C.F.R. § 404.1545(e)). While the ALJ here did not find that Rearden’s heart condition,
obesity, hypertension, and hyperthyroidism were severe impairments at step three, she did
consider these impairments in her RFC determination.
As for Rearden’s heart condition, the ALJ explained there is no evidence she suffers from a
severe cardiovascular impairment (Tr. 27). Although Rearden did visit a cardiologist in July of
2011, he reported her condition was stable and recommended she lose weight and stop smoking
(Id.). Likewise, the ALJ discussed Rearden’s obesity, indicating she “thoroughly considered the
impact of [her] obesity” and the effect it has on her ability to perform routine movement and
necessary physical activity within the work environment (Tr. 28). However, the ALJ found
Rearden’s obesity did not cause additional limitations above those established by her severe
impairments (Id.). Finally, the ALJ explained that even though Rearden has hypertension and

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hyperthyroidism, there are no findings suggesting she has more than minimal limitations as a result
of these conditions (Id.).
Rearden also believes that the ALJ should have ordered a consultative examination to
assess the degree of her COPD (DN 14-1, at p. 8). When the evidence as a whole is not sufficient
to support a decision on the claim, it is within the discretion of the Administrative Law Judge to
order a consultative examination. 20 C.F.R. § 404.1519a. Here, there was nothing in the record
indicating that the ALJ should order a consultative examination for Rearden’s COPD. The ALJ
concluded Rearden’s COPD was a severe impairment and discussed pulmonary and chest
examinations revealing normal effort and breath sounds. If anything, based on the evidence in the
record, the ALJ gave Rearden the benefit of the doubt in finding her COPD was a severe
impairment.
Rearden feels that if the ALJ had taken into account her “well-documented struggles with
pain,” she would have found Rearden to be disabled (DN 14-1, at p. 8).

Yet the ALJ

comprehensively discussed all of Rearden’s severe and non-severe impairments in her eight-page
RFC determination. All of these findings by the ALJ affirm that she considered Rearden’s
impairments alone and in combination throughout her decision. As such, the ALJ’s decision is
supported by substantial evidence.
C. Finding No. 4
Rearden argues that the ALJ failed to consider objective medical evidence proving she
meets the requirements of Listing 1.04A (DN 14-1, at pp. 3-4). The ALJ’s decision, Reardon
explains, only fully assessed whether her mental conditions met or equaled a listing but never
discussed the spinal disorder listing (Id.).

In opposition, the Commissioner contends that

although the ALJ did not specifically mention Listing 1.04 at Finding No. 4, she thoroughly
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discussed the medical evidence relating to Rearden’s back impairments and explained in detail
why the impairments were not disabling (DN 19, at p. 8).
A claimant must meet all of the specified medical criteria of a listing in order to show that
her impairment matches the listing. Sullivan v. Zebley, 493 U.S. 521, 530, 110 S.Ct. 885, 107
L.Ed.2d 967 (1990) (emphasis added). “It is insufficient that a claimant comes close to meeting
the requirements of a listed impairment.” Elam ex rel. Golay v. Comm’r of Soc. Sec., 348 F.3d
124, 125 (6th Cir. 2003) (citing Dorton v. Heckler, 789 F.2d 363, 367 (6th Cir. 1986)). Listing
1.04 covers “Disorders of the spine (e.g., herniated nucleus pulpsus, spinal arachnoiditis, spinal
stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in
compromise of a nerve root . . . or the spinal cord.” 20 C.F.R. Pt. 404, Subpt P, App. 1, Listing
1.04 (emphasis added). Additionally, to satisfy Listing 1.04A, a claimant must prove:
A. Evidence of nerve root compression characterized by
nuero-anatomic distribution of pain, limitation of motion of the
spine, motor loss (atrophy with associated muscle weakened or
muscle weakness) accompanied by sensory or reflex loss and, if
there is involvement of the lower back, positive straight-leg raising
test (sitting back or supine).
Id.
Here, at Finding No. 4, the ALJ noted that Rearden is not subject to any impairment in
section 1.00 “musculoskeletal system” and stated that Finding No. 5 would explain this conclusion
in greater detail (Tr. 23). In Finding No. 5, the ALJ went on to thoroughly discuss Rearden’s back
limitations, specifically her X-ray and MRI results. The ALJ pointed out that a lumbar spine
x-ray revealed “mild degenerative changes at L5-S1 and that a cervical spine x-ray revealed “only
mild ucinate degenerative changes at C5-C6” (Tr. 26). As for Rearden’s MRI of the lumbar
spine, the ALJ noted results revealing an “L5-S1 cephalad disc extrusion, deforming the thecal sac
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and causing mass effect on the left S1 nerve root” and “mild disc bulging at L3-L4 and L4-L5
levels with a superimposed left recess/proximal forminal disc protrusion at L3-L4 “(Id.). The
ALJ also discussed an MRI of Rearden’s cervical spine, revealing a left C5-C6 disc protrusion
causing mild-moderate recess stenosis (Id.).
Rearden has not identified any evidence beyond the x-rays and MRIs discussed in the
ALJ’s Finding No. 5 to support that she meets Listing 1.04A. In fact, Rearden only makes a
cursory argument that her MRI “combined with multiple objective medical findings clearly
establishes all of these requirements,” which she followed with a string citation to the record (DN
14-1, at p. 4).
After reviewing the portions of the record Rearden cites to, it is evident that she cannot
meet all of the elements of Listing 1.04A. Although the MRI of Rearden’s lumbar spine showed
an “L5-S1 cephalad disc extrusion, deforming the thecal sac and causing mass effect on the left S1
nerve root,” the results do not specify that the nerve root or spinal cord has been compromised.
Moreover, Rearden fails to prove “limitation of motion of the spine.” In fact, the records from
Mary Danhauer, APRN, that Reardon cites to, indicate her musculoskeletal range of motion is
normal and her cervical back and thoracic back are normal (Tr. 599, 732, 740). Otherwise,
Danhauer’s records only note that Rearden “exhibits tenderness and bony tenderness in the lumbar
back” and include a diagram with the following note: “Tender LS Spine, Tender to palpation [sic]
paravertebral muscles, Pain in LB with SLR on the bilaterally, Pain in LB with [sic] rotation of
bilaterally LE. R > L” (Tr. 599, 732). The note is difficult to decipher, but even so, it fails to
demonstrate Rearden has motor loss accompanied by sensory or reflex loss and positive
straight-leg raising test. Thus, the medical records do not support Rearden’s argument that her
impairments satisfy the stringent criteria of Listing 1.04A.
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D. Finding No. 5
Next, Rearden makes a number of arguments against the ALJ’s RFC determination at
Finding No. 5. The RFC finding is the Administrative Law Judge’s ultimate determination of
what a claimant can still do despite his physical and mental limitations.

20 C.F.R. §§

404.1545(a), 404.1546, 416.945(a), 416.946. The Administrative Law Judge bases his RFC
finding 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 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.
1. Mary Danhauer’s Opinion
Rearden believes the ALJ improperly applied SSR 06-03 in finding that Mary Danhauer’s
opinion should be afforded little weight (DN 14-1, at pp. 5-6). Rearden recognizes that Nurse
Danhauer is not an acceptable medical source but refers to her as a “treating nurse practitioner”
and argues that her opinion is supported by the record as a whole, including her objective findings
(Id. at p. 6). The Commissioner counters that the ALJ reasonably accounted for Rearden’s
neurological and musculoskeletal limitations by restricting her to a reduced range of light work
(DN 19, at pp. 12-13).
The regulations define “acceptable medical source” at 20 C.F.R. § 404.1513(a) by listing
the categories of medical sources that qualify.

It is well-established that APRNs are not

“acceptable medical sources.” See Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 541 (6th Cir.
2007); Meredith v. Colvin, No. 3:14cv416, 2015 WL 2137202, at *17 (N.D. Ohio May 7, 2015).
Rather, APRNs are considered “other sources” pursuant to 20 C.F.R. § 416.913(d)(1), and their
opinions are neither entitled to controlling weight nor subject to the “good reasons” requirement of
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the treating physician rule. See Social Security Ruling 06-03p, 2006 WL 2329939, at *3 (Aug. 9,
2006); Borden v. Comm’r of Soc. Sec., No. 1:13CV2211, 2014 WL 7335176, at *9 (N.D. Ohio
Dec. 19, 2014). Nonetheless, an Administrative Law Judge may apply the factors from 20 C.F.R.
§ 404.1527(c) to opinion evidence from “other sources.” SSR 06-03p at *4-5.
Here, the ALJ correctly acknowledged that because Mary Danhauer is an APRN, she is not
an acceptable medical source (Tr. 31). The ALJ identified several reasons for affording little
weight to Nurse Danhauer’s opinion, most notably that the record did not support her opinion (Id.).
The ALJ also discussed that she did not start treating Rearden until September of 2012, almost two
years after her alleged onset date, and prior to this visit, Rearden “had not received treatment or
taken medication for over a year” (Id.). Additionally, the ALJ noted although objective and
clinical signs revealed findings precluding Rearden from any strenuous work, there are no findings
to support Nurse Danhauer’s opinion that she is unable to perform light work activity (Id.).
After reviewing the record, the undersigned agrees that Nurse Danhauer’s treatment notes
do not support the restrictive findings in her opinion. For instance, Nurse Danhauer’s opinion
states that Rearden can only stand for 30 minutes at one time and three hours in an eight-hour day;
sit for about 15 minutes at one time and two and a half hours in an eight-hour day; and lay down
once every hour for about ten minutes (747-49). On the other hand, Nurse Danhauer’s objective
treatment notes consistently indicate Rearden has a normal musculoskeletal range of motion and
normal physical exam results on her cervical and thoracic back (Tr. 599, 732, 740). As discussed
above, although there were some degenerative findings from x-rays and MRIs performed by Nurse
Danhauer, none of her findings or impressions support the severity of limitations in her opinion
(Tr. 572-74).

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The ALJ clearly considered the 20 C.F.R. § 404.1527(c) factors in her exhaustive
evaluation of Nurse Danhauer’s opinion. Thus, her conclusion that Nurse Danhauer’s opinion
should be accorded little weight is supported by substantial evidence in the record and follows SSR
06-03.
2. Dr. John Gedmark’s Opinion
Rearden also claims the ALJ improperly relied on the “snapshot opinion” of the
non-examining state agency physician, Dr. John Gedmark (DN 14-1, at p. 6). In support, Rearden
explains that Dr. Gedmark’s review of the record was incomplete and “in no way considers actual
observation or examination” of her (Id.). Because Dr. Gedmark did not review the entire medical
record, Rearden argues his opinion is not supported by substantial evidence (Id. at p. 7). The
Commissioner maintains that while Dr. Gedmark did not review the entire medical record, any
shortcoming in his opinion was remedied by the ALJ’s thorough review of the record (DN 19, at
pp. 13-14).
The regulations provide that “[s]tate agency medical and psychological consultants . . . are
highly qualified physicians and psychologists who are also experts in Social Security disability
evaluation.” 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i). Generally, a non-examining
physician’s report is entitled to less weight than the reports of other physicians who examined the
claimant. Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980). When a non-examining source
has not reviewed a significant portion of the record, and the Administrative Law Judge fails to
indicate that he has “at least considered [that] fact before giving greater weight” to the reviewing
doctor’s opinion, the decision cannot stand. Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 409
(6th Cir. 2009). But when the opinions of non-examining State agency medical/psychological
advisors are consistent with the record, those opinions represent substantial evidence to support
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the Administrative Law Judge’s decision. 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(f); Social
Security Ruling 96-6p, 1996 WL 374180, at *2, 3; Atterbery v. Sec’y of Health & Human Servs.,
871 F.2d 567, 570 (6th Cir. 1989).
Here, the ALJ adopted the analysis of State agency physician, Dr. Gedmark (Tr. 31). Dr.
Gedmark performed his review of Rearden’s record on October 23, 2012, and affirmed a prior
RFC determination (Tr. 91). Admittedly, Dr. Gedmark did not evaluate the entire record because
he performed his review before some of Nurse Danhauer’s treatment and the issuance of her
opinion (Tr. 594, 637, 745). It is, therefore, fair to conclude that Dr. Gedmark did not review a
significant portion of the record. Nevertheless, the ALJ considered Nurse Danhauer’s records
and opinion in great detail before determining that her opinion was entitled to little weight.
Further, the ALJ appropriately adopted Dr. Gedmark’s evaluation because it was
consistent with the record. In his assessment, Dr. Gedmark considered Rearden’s daily activities,
limitations, and medications. Of note, Dr. Gedmark discussed Nurse Danhauer’s treatment notes
from September 12 and 19, 2012, indicating her musculoskeletal range of motion was normal and
her muscle tone was normal (Tr. 91). Nurse Danhauer’s additional records, post-dating Dr.
Gedmark’s decision, offer little probative value because of the inconsistencies between her
treatment notes and finding of disability. This evidence also falls short of demonstrating that
there is a reasonable probability that the state agency physician would have reached a different
disposition if presented with this evidence. Because Dr. Gedmark’s opinion was consistent with
the record and the ALJ considered this fact before assigning it greater weight than Nurse
Danhauer’s opinion, the undersigned finds the ALJ’s decision is supported by substantial
evidence.

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3. Rearden’s Credibility
Rearden argues the ALJ failed in finding her testimony was not credible and failed to state
sufficient reasons for doing so (DN 14-1, at p. 10). Specifically, Rearden claims it was improper
to discount her credibility based on noncompliance and lack of treatment (Id.).

The

Commissioner responds that it was proper for the ALJ to consider whether Rearden’s failure to
receive treatment or take her medication was due to her financial situation or lack of insurance
(DN 19, at p. 16).
When the Administrative Law Judge evaluates credibility, a claimant’s statement that she
is experiencing pain or other symptoms will not, taken alone, establish that he is disabled. See 20
C.F.R. § 404.1529(a); Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 530 (6th Cir. 1997); Duncan
v. Sec’y of Health & Human Servs., 801 F.2d 847, 853 (6th Cir. 1986). There must be medical
signs and laboratory findings which show the existence of a medical impairment that could
reasonably be expected to produce the pain alleged. Walters, 127 F.3d at 530; Duncan, 801 F.2d
at 854. In making his evaluation, the Administrative Law Judge considers objective medical
evidence, as well as other factors such as evidence of daily activities, the frequency and intensity
of pain, medication taken and any resulting side effects, and any other measures taken to alleviate
the pain. See 20 C.F.R. §§ 404.1529(c)(2), (3), 416.929(c)(2), (c)(3).
In determining whether a claimant suffers from debilitating pain and other symptoms, the
Sixth Circuit applies the two-part test set forth in Duncan, 801 F.2d at 853.

First the

Administrative Law Judge must examine whether there is objective medical evidence of an
underlying medical condition. Duncan, 801 F.2d at 853. Here, the ALJ concluded there was
objective evidence that the claimant’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms (Tr. 28). Next, the Administrative Law Judge must
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determine: “(1) whether objective medical evidence confirms the severity of the alleged pain
arising from the condition; or (2) whether the objectively established medical opinion is of such
severity that it can reasonably be expected to produce the alleged disabling pain.” Duncan, F.2d
at 853. Here, the ALJ found that Rearden’s statements “concerning the intensity, persistence and
limiting effects of these symptoms are not entirely credible” (Tr. 28).
The ALJ offered several reasons for discounting Rearden’s credibility. First, the ALJ
explained that Rearden had “uncontrolled diabetes” because she was not compliant in receiving
treatment or with taking her medication (Tr. 25). When Rearden began treating with Nurse
Danhauer, she had not received any type of treatment for over a year (Id.). The ALJ also noted it
was reasonable that Rearden experienced an exacerbation of symptoms from going more than a
year without treatment or medication (Tr. 29-30). Specifically, the ALJ considered whether
Rearden’s noncompliance was due to her financial situation and lack of insurance and took note of
her ability to support her long time smoking habit (Tr. 30). Courts within the Sixth Circuit have
found that an Administrative Law Judge may consider a claimant’s noncompliance as one factor
that can diminish credibility. Williams v. Comm’r, Soc. Sec. Admin., No. 3:13-CV-1276, 2014
WL 1406433, at *13 (N.D. Ohio Apr. 10, 2014) (citing Kinter v. Colvin, No. 5:12CV490, 2013
WL 1878883, at *9 (N.D. Ohio Apr. 18, 2013)).
Along with considering Rearden’s noncompliance with treatment and medication, the ALJ
also discussed the discrepancies between her testimony and the report of her son (Tr. 28-29).
Particularly, Rearden’s son reported she mows her yard and babysits her grandchild, whereas,
Rearden reports that she cannot mow the lawn and has a hard time doing household chores (Id.).
The ALJ concluded that Rearden’s testimony regarding her activities of daily living reveals

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“significantly less activities than was previously reported” but that these limitations could not be
objectively verified (Tr. 29).
The ALJ also considered Rearden’s testimony that she has side effects of dizziness and
trouble remembering things or focusing due to her medication (Tr. 29). To account for these side
effects, the ALJ found Rearden should avoid concentrated exposure to hazards, and she is limited
to simple work (Id.). Finally, the ALJ considered Rearden’s testimony that she can only stand for
about 15-20 minutes at a time, sit for about 20 minutes at a time, and must lie down for about three
hours of the day due to pain (Tr. 29). Yet the ALJ explained that there are no objective findings in
the record demonstrating limitations regarding prolonged sitting, standing, or walking (Id.).
Because the ALJ considered a myriad of factors in evaluating Rearden’s credibility,
including those mentioned in 20 C.F.R. § 404.1529(c), the undersigned finds the ALJ’s credibility
determination is supported by substantial evidence.
4. Lay Witness Testimony
In addition, Rearden claims the ALJ erred in giving “little weight” to third-party reports
from her husband and two sons (DN 14-1, at p. 11). Rearden argues the ALJ “categorically
reject[ed] all lay witness testimony” (Id. at p. 12). The Commissioner clarifies that the ALJ
afforded “some weight” to these reports because although they indicated some limited activities,
there was nothing indicating that Rearden could not perform a range of light work (DN 19, at p.
17).
SSR 06-03p instructs that in evaluating evidence from lay witnesses, “it is appropriate to
consider such factors as the nature and extent of the relationship, whether the evidence is
consistent with other evidence, and any other factors that tend to support or refute the evidence.”
SSR 06-03p, 2006 WL 2329939, at *6 (Aug. 9, 2006). When lay witness testimony is provided,
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an Administrative Law Judge cannot disregard it without comment but, rather, must “give reasons
for not crediting the testimony that [is] germane to each witness.” Maloney v. Comm’r of Soc.
Sec., 480 F. App’x 804, 810 (6th Cir. 2012). Yet when an Administrative Law Judge discusses at
length the objective medical evidence, she is not required to give a separate review of a third party
statement. See Pasco v. Comm’r of Soc. Sec., 137 F. App’x 828, 842 (6th Cir. 2005) (finding the
ALJ did not err in failing to mention letter from claimant’s mother).
Here, the ALJ explicitly afforded the third party reports from Rearden’s husband and two
sons “some weight” and discussed the evidence provided in each report (Tr. 30). The ALJ
explained that although Rearden’s husband and sons reported that she has some limitations, they
described daily activities that are not very limited (Id.).

For instance, the ALJ recounted

statements from Rearden’s son, Nathan, that she “[c]ooks, cleans for husband, babysits & helps
raise grandchild” (Id.).

Similarly, the ALJ noted Rearden’s husband’s statements that she

prepares daily meals, does the mowing, and does some housework, but “has to take breaks several
times due to getting light-headed or foot pain” (Id.).

Rearden’s other son, James, also

corroborated that Rearden performs “some housework and yardwork,” fixes small, easy meals,
and watches her grandson for a few hours every couple of days (Id.). As such, the ALJ
appropriately afforded “some weight” to the third party reports in the record, and these findings are
supported by substantial evidence.
5. Improper Speculation
Rearden makes two claims that the ALJ erred in speculating as to medical conclusions (DN
14-1, at p. 9). First, Rearden claims the ALJ speculated in affording great weight to Dr. John
Gedmark’s opinion. The undersigned has thoroughly evaluated this argument in the preceding
sections and found it is without merit. Second, Rearden claims the ALJ acted as her own medical
15

expert by failing to assign weight to the opinions of the state agency psychologists (Id. at pp. 9-10).
The Commissioner argues that it is clear the ALJ rejected the state agency psychologist opinions
because he found Rearden had a severe mental impairment and included limitations in his RFC
pursuant to that mental impairment (DN 19, at p. 15).
The Administrative Law Judge is not bound to accept the opinion or theory of any medical
expert, “but may weigh the evidence and draw his own inferences.” McCain v. Dir., Office of
Workers Compensation Programs, 58 F. App’x 184, 193 (6th Cir. 2003) (citation omitted). Even
so, the Administrative Law Judge is not permitted to “substitute his own medical judgment for that
of the treating physician,” Simpson v. Comm’r of Soc. Sec., 344 F. App’x 181, 194 (6th Cir. 2009)
(citing Meece v. Barnhart, 192 F. App’x 456, 465 (6th Cir. 2006)), and may not make his own
independent medical findings.

Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) (citations

omitted).
It is true that an Administrative Law Judge must consider all medical opinions that he or
she received in evaluating a claimant’s case. 20 C.F.R. § 416.927(d). Though the ALJ here did
not assign specific weight to the state agency psychologists, it can be inferred from the decision
that the ALJ rejected their findings. For instance, the ALJ recognized that the state agency
psychologists opined that Rearden did not have a severe mental impairment (Tr. 31). The ALJ
additionally noted that Rearden has neither required emergency room treatment for mental health
problems nor undergone any mental health counseling or therapy (Tr. 31). However, because
Rearden was taking psychotropic medication for an affective disorder, the ALJ found this was a
severe impairment and limited her to a range of simple work (Id.).
Any error resulting from the ALJ’s failure to accord weight to the state agency
psychologists is, therefore, harmless in that the ALJ sufficiently explained his determination. The
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ALJ did not engage in improper speculation by discussing Rearden’s psychotropic medication and
lack of mental health treatment.

ORDER
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 delay.

April 21, 2016

Copies:

Counsel

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