Yackley v. Social Security

Filing 18

MEMORANDUM OPINION and ORDER re 17 MOTION for Summary Judgment , 14 MOTION for Summary Judgment with supporting brief and certificate of service. Signed by Magistrate Judge Patricia T. Morris. (KCas)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
RALPH M. YACKLEY,
Plaintiff,

CASE NO. 16-cv-14075
MAGISTRATE JUDGE PATRICIA T. MORRIS

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
___________________________/

OPINION AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
(Docs. 14, 17)
I.
OPINION
A. Introduction and Procedural History
This is an action for judicial review of a final decision by the Commissioner of
Social Security denying Plaintiff Ralph Yackley’s claim for disability benefits under the
Disability Insurance Benefits program of Title II, 42 U.S.C. § 401 et seq. (Doc. 1). The
case is before the undersigned magistrate judge pursuant to the parties’ consent under 28
U.S.C. § 636(c), E.D. Mich. LR 72.1(b)(3), and by Notice of Reference. (Docs. 4, 13). The
matter is currently before the Court on cross-motions for summary judgment. (Docs. 14,
17).
Yackley was 58 years old when his insured status expired in December 2012. (Tr.
146). On April 2, 2014, he filed his initial application for Disability Insurance Benefits.
(Tr. 131-32). After the Commissioner denied his claim, Yackley requested a hearing, (Tr.
80), which was held before Administrative Law Judge Amy L. Rosenberg, (Tr. 28), and
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included testimony from both Yackley, (Tr. 33), and Vocational Expert Amelia Shelton,
(Tr. 50). Yackley also took the opportunity to amend his alleged onset date from January
15, 2008, to August 28, 2012. (Tr. 16, 196). Ultimately, the ALJ found that Yackley had
not had a disability during the relevant time period. (Tr. 24), and the Appeals Council
denied Yackley’s request for review. (Tr. 1, 16-24). This action followed.
B. Standard of Review
The district court has jurisdiction to review the Commissioner’s final administrative
decision pursuant to 42 U.S.C. § 405(g). The district court’s review is restricted to
determining whether the “Commissioner has failed to apply the correct legal standard or
has made findings of fact unsupported by substantial evidence in the record.” Sullivan v.
Comm’r of Soc. Sec., 595 F. App’x 502, 506 (6th Cir. 2014) (internal citations omitted).
Substantial evidence is “more than a scintilla of evidence but less than a preponderance; it
is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (internal
quotations omitted).
The Court must examine the administrative record as a whole, and may consider
any evidence in the record, regardless of whether it has been cited by the ALJ. See Walker
v. Secretary of Health and Human Services, 884 F.2d 241, 245 (6th Cir. 1989). The Court
will 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).
If the Commissioner’s decision is supported by substantial evidence, “it must be affirmed

2

even if the reviewing court would decide the matter differently and even if substantial
evidence also supports the opposite conclusion.” Id. at 286 (internal citations omitted).
C.

Framework for Disability Determinations

Under the Act, “DIB and SSI are available only for those who have a ‘disability.’”
Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). “Disability” means the inability
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] months.

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); 20 C.F.R. § 416.905(a) (SSI).
The Commissioner’s regulations provide that disability is to be determined through
the application of a five-step sequential analysis:
(i) At the first step, we consider your work activity, if any. If
you are doing substantial gainful activity, we will find that you
are not disabled. . . .
(ii) At the second step, we consider the medical severity of your
impairment(s). If you do not have a severe medically
determinable physical or mental impairment that meets the
duration requirement . . . or a combination of impairments that
is severe and meets the duration requirement, we will find that
you are not disabled. . . .
(iii) At the third step, we also consider the medical severity of
your impairment(s). If you have an impairment(s) that meets
or equals one of our listings in appendix 1 of this subpart and
meets the duration requirement, we will find that you are
disabled. . . .
(iv) At the fourth step, we consider our assessment of your
residual functional capacity and your past relevant work. If you
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can still do your past relevant work, we will find that you are
not disabled. . . .
(v) At the fifth and last step, we consider our assessment of
your residual functional capacity and your age, education, and
work experience to see if you can make an adjustment to other
work. If you can make an adjustment to other work, we will
find that you are not disabled. If you cannot make an
adjustment to other work, we will find that you are disabled.
20 C.F.R. §§ 404.1520, 416.920. See also Heston v. Comm’r of Soc. Sec., 245 F.3d 528,
534 (6th Cir. 2001). “Through step four, the claimant bears the burden of proving the
existence and severity of limitations caused by [his or] her impairments and the fact that
[he or] she is precluded from performing [his or] her past relevant work.” Jones v. Comm’r
of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). A claimant must establish a medically
determinable physical or mental impairment (expected to last at least twelve months or
result in death) that rendered him unable to engage in substantial gainful activity. 42 U.S.C.
§ 423(d)(1)(A). The burden transfers to the Commissioner if the analysis reaches the fifth
step without a finding that the claimant is not disabled. Combs v. Comm’r of Soc. Sec., 459
F.3d 640, 643 (6th Cir. 2006). At the fifth step, the Commissioner is required to show that
“other jobs in significant numbers exist in the national economy that [the claimant] could
perform given [his or] her RFC [residual functional capacity] and considering relevant
vocational factors.” Rogers, 486 F.3d at 241 (citing 20 C.F.R. §§ 416.920(a)(4)(v), (g)).
D. ALJ Findings
Following the five-step sequential analysis, the ALJ concluded that Yackley was
not disabled under the Act. At Step One, the ALJ found that Yackley did not engage in
substantial gainful activity between his alleged onset date of August 28, 2012, and his date
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last insured of December 31, 2012. (Tr. 18). At Step Two, the ALJ found that Yackley had
several severe impairments: degenerative disc disease and stenosis of the lumbar spine,
obesity, and osteoarthritis. (Tr. 18). The ALJ further determined, however, that none of
these impairments met or medically equaled a listed impairment. (Tr. 20).
The ALJ then found that Yackley had the residual functional capacity to perform
medium work “except: he can frequently climb, balance, stoop, kneel, crouch and crawl,”
(Tr. 20), which left him unable to perform his past relevant work in a composite position
as “stock clerk grocery” and “cashier.” (Tr. 22). Finally, at Step Five, the ALJ found that
through the date last insured, “there were jobs that existed in significant numbers in the
national economy that the claimant could have performed”—namely, laundry worker, linen
room attendant, or packager. (Tr. 23).
E. Administrative Record
1. Medical Evidence
The Court has thoroughly reviewed Yackley’s medical record. In lieu of
summarizing his medical history here, the Court will make reference and provide citations
to the record as necessary in its discussion of the parties’ arguments.
2. Application Reports and Administrative Hearing
a. Yackley’s Function Report
Yackley completed his function report on July 22, 2014. He indicated that his
alleged medical conditions sometimes affected his daily life. For example, he reported
some difficulty sleeping, as he was “unable to get comfortable,” and had to “get up and sit
in [a] lounge chair for a while—then back to bed.” He had “trouble with socks and shoes”
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and had to use the shower instead of the tub for bathing, but otherwise indicated no
problems with personal care. (Tr. 172).
He also marked that he had trouble with lifting, squatting, bending, standing,
walking, sitting, kneeling, and climbing stairs. (Tr. 176). He could lift 10 to 20 pounds and
walk “a very short distance,” “100 yards” or “maybe shorter” before needing to take a 15minute rest. (Tr. 176).
Some aspects of his daily life remained unchanged from before his reported onset:
He continued to prepare his own meals daily, (Tr. 173), and was comfortable paying bills,
counting change, handling a savings account, and using a checkbook. (Tr. 174-75). He
could still drive and could go out unaccompanied; he regularly went alone to church, the
doctor, and the dentist. (Tr. 175). He went grocery shopping with his mother once a month
for about an hour, where he needed to hold on to the shopping cart. (Tr. 174). He had no
problem getting along with family, friends, neighbors, or others. (Tr. 176).
For hobbies, he liked to read and watch sports on TV. Since the onset of his
conditions, however, he had been unable to “bowl or play any kind of sports.” (Tr. 176).
He played cards instead, mostly with his elderly parents. (Tr. 175).
b. Yackley’s Testimony at the Administrative Hearing
At the hearing, Yackley’s chief complaints were of pain in his back and knee. He
felt a “pretty sharp” pain in the last three vertebrae in his spine and his tailbone, with “two
or three” days a week being particularly bad. Further, after Yackley underwent surgery on
his left knee to repair a torn meniscus, that knee became “loaded with arthritis.” (Tr. 42).

6

His prescribed muscle relaxant also sometimes made him “a little drowsy or tired.” (Tr.
49).
Yackley confirmed he had not done any work for pay or profit since his amended
onset date of August 28, 2012—in fact, he had last been employed in 2007. (Tr. 38, 47).
He had a bachelor of science and had spent several more years pursuing a Master’s in
“business, finance, banking.” (Tr. 35). When he was still working, he had “basically the
same position” for years as a cashier and stocker in several grocery stores, where he “did
stock, put stock on the shelf at night, unloaded trucks, ran the register at night . . . [and] did
basic customer service work.” The job required him to lift as much as 80 pounds and be on
his feet “almost all” day. (Tr. 37).
Asked why he could no longer work a full-time job on a sustained basis, Yackley
answered, “For one thing, nobody will hire me. The second thing is I can’t lift very much
for very long periods of time.” (Tr. 39). He said he could stand for 15 minutes before
needing to sit, and then sit for 15 minutes before needing to stand. (Tr. 39-40). He estimated
he could lift about ten pounds, and could not bend to pick something up off the floor
without pain. (Tr. 40).
At the time of his testimony, Yackley was divorced and living with his elderly
parents. (Tr. 33). He would “try to do what I can to help them out.” (Tr. 33-34). For
example, he helped with household chores by taking out the garbage—though he was
unable to cut the lawn or shovel snow. “On occasion” he also cooked “easy stuff” like
hamburgers, (Tr. 45), and he was able to go grocery shopping using an electric cart or by
taking a break partway through to sit down. (Tr. 47).
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While he used to bowl and play basketball, baseball, and football, he was no longer
able to do so; instead, he played cards. (Tr. 46).
By way of treatment, Yackley took atenolol and losartan potassium regularly, as
well as Flexeril, aspirin, Extra Strength Tylenol, and Motrin when needed. (Tr. 42-43). He
also used Biofeed rub, a skin rub that provides heat for pain relief. (Tr. 43). Once in a while
he used a cane. (Tr. 44). He did “not generally” need to lie down during the day, but spent
six to seven hours a day reclining in a La-Z-Boy chair at home, as sitting in a chair with a
high back helped relieve his pain. (Tr. 44-45).
Finally, Yackley’s attorney clarified that “the limitations you talk about today, they
were in effect as of 2012, is that correct?” (Tr. 47-78). Yackley confirmed they were. (Id.).
c. The VE’s Testimony at the Administrative Hearing
As an initial matter, the VE classified Yackley’s past employment as semi-skilled,
(Tr. 54), and a composite of “store clerk grocery”—rated as heavy duty, in this instance
“somewhere between medium and heavy”—and “cashier grocery”—a light duty job. (Tr.
50-51).
The ALJ then asked her first hypothetical: “Assume that this individual is limited to
working at the medium exertional level and the person would be limited to frequent rather
than constant climbing, balancing, stooping, kneeling, crouching or crawling. Could the
hypothetical individual perform . . . the claimant’s past work . . . ?” (Tr. 51). The VE said
no. The ALJ then inquired whether the same hypothetical individual could perform other
medium work, to which the VE responded yes, as a “laundry worker I” (with 28,000 jobs

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nationally), “linen room attendant” (57,000 jobs nationally), or “packager” (132,000 jobs
nationally). (Tr. 51-52).
Moving on to her second hypothetical, the ALJ asked, “So now assume that the
person is limited to working at the light exertional level and can only occasionally climb,
balance, stoop, kneel, crouch or crawl. Are there jobs in the national economy that the
person would be able to perform?” (Tr. 52). In that case, the VE answered, the person could
work at the light-duty level as a “fast food worker” (750,000 jobs nationally), “marker”
(144,000 jobs nationally), or “parking lot attendant” (41,000 jobs nationally). (Id.).
Next, the ALJ added another restriction to the hypothetical: “a sit/stand option . . .
so that the person would have the ability to change position between sitting or standing at
will provided that they wouldn’t be off task more than ten percent of the workday and
making those positional changes. Would those jobs that you just gave me at the light level
be available?” (Tr. 52-53).
The jobs of parking lot attendant and marker would still be available, said the VE,
although the number of available jobs would be reduced to 35,000 and 56,000 nationally,
respectively. (Tr. 53). Fast food worker would no longer be available, but the VE offered
in its place “mail room clerk” (99,000 jobs nationally). (Id.).
The ALJ posed a final hypothetical in which the person was “limited to a total of
only two hours sitting and two hours of standing or walking within an eight-hour workday.”
(Id.). These would be work-preclusive limitations, the VE responded. (Id.).
Finally, the VE addressed a hypothetical from Yackley’s attorney in which a person
“would have two or three bad days to the point that he couldn’t even show up for work.”
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(Tr. 56). “That would be work preclusive in my opinion,” the VE said. “Anything more
than one day per month missed is work preclusive.” (Id.).
F. Governing Law
The ALJ must “consider all evidence” in the record when making a disability
decision. 42 U.S.C. § 423(d)(5)(B). The regulations carve the evidence into categories:
“acceptable medical sources” and “other sources.” 20 C.F.R. § 404.1513. “Acceptable
medical sources” include, among others, licensed physicians and licensed or certified
psychologists. Id. § 404.1513(a). “Other sources” include medical sources who are not
“acceptable” and almost any other individual able to provide relevant evidence. Id. §
404.1513(d). Only “acceptable medical sources” can establish the existence of an
impairment. SSR 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 2006). Both “acceptable” and
non-acceptable sources provide evidence to the Commissioner, often in the form of
opinions “about the nature and severity of an individual’s impairment(s), including
symptoms, diagnosis and prognosis, what the individual can still do despite the
impairment(s), and physical and mental restrictions.” Id. When “acceptable medical
sources” issue such opinions, the regulations deem the statements to be “medical opinions”
subject to a multi-factor test that weighs their value. 20 C.F.R. § 404.1527. Excluded from
the definition of “medical opinions” are various decisions reserved to the Commissioner,
such as whether the claimant meets the statutory definition of disability and how to measure
his or her RFC. Id. § 404.1527(d).
The ALJ must use a six-factor balancing test to determine the probative value of
medical opinions from acceptable sources. 20 C.F.R. § 404.1527(c). The test looks at
10

whether the source examined the claimant, “the length of the treatment relationship and the
frequency of examination, the nature and extent of the treatment relationship,
supportability of the opinion, consistency of the opinion with the record as a whole, and
specialization of the treating source.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544
(6th Cir. 2004); see also 20 C.F.R. § 404.1527(c). ALJs must also apply those factors to
“other source” opinions. See Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 540-42 (6th Cir.
2007); SSR 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 2006).
Certain opinions of a treating physician, in contrast, receive controlling weight if
they are “well-supported by medically acceptable clinical and laboratory diagnostic
techniques” and are “not inconsistent with the other substantial evidence in [the] case
record.” 20 C.F.R. § 404.1527(c)(2); see also Wilson, 378 F.3d at 544. The only opinions
entitled to dispositive effect deal with the nature and severity of the claimant’s
impairments. 20 C.F.R. § 404.1527(d); SSR 96-2p, 1996 WL 374188, at *1-2 (July 2,
1996). Therefore, the ALJ does not owe a treating opinion deference on matters reserved
to the Commissioner. 20 C.F.R. § 404.1527(d); SSR 96-2p, 1996 WL 374188, at *1-2 (July
2, 1996). The ALJ “will not give any special significance to the source of an opinion”
regarding whether a person is disabled or unable to work, whether an impairment meets or
equals a Listing, the individual’s RFC, and the application of vocational factors. 20 C.F.R.
§ 404.1527(d)(3).
The regulations mandate that the ALJ provide “good reasons” for the weight
assigned to the treating source’s opinion in the written determination. 20 C.F.R. §

11

404.1527(c)(2); see also Dakroub v. Comm’r of Soc. Sec., 482 F.3d 873, 875 (6th Cir.
2007). Therefore, a decision denying benefits
must contain specific reasons for the weight given to the treating source’s
medical opinion, 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 opinion and the reasons for that
weight.
SSR 96-2p, 1996 WL 374188, at *5 (July 2, 1996); see also Rogers, 486 F.3d at
242. For example, an ALJ may properly reject a treating source opinion if it lacks
supporting objective evidence. Revels v. Sec’y of Health & Human Servs., 882 F.
Supp. 637, 640-41 (E.D. Mich. 1994), aff’d, 51 F.3d 273 (Table), 1995 WL 138930,
at *1 (6th Cir. 1995).
An ALJ must analyze the credibility of the claimant, considering the claimant’s
statements about pain or other symptoms with the rest of the relevant evidence in the record
and factors outlined in Social Security Ruling 96-7p, 1996 WL 374186 (July 2, 1996).
Credibility determinations regarding a claimant’s subjective complaints rest with the ALJ.
See Siterlet v. Sec’y of Health & Human Servs., 823 F.2d 918, 920 (6th Cir. 1987).
Generally, an ALJ’s credibility assessment can be disturbed only for a “compelling
reason.” Sims v. Comm’r of Soc. Sec., 406 F. App’x 977, 981 (6th Cir. 2011); Warner v.
Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004).
The Social Security regulations establish a two-step process for evaluating
subjective symptoms, including pain. 20 C.F.R. § 404.1529; SSR 96-7p, 1996 WL 374186,
at *2 (July 2, 1996). The ALJ evaluates complaints of disabling pain by confirming that
objective medical evidence of the underlying condition exists. The ALJ then determines
12

whether that condition could reasonably be expected to produce the alleged pain or whether
other objective evidence verifies the severity of the pain. See 20 C.F.R. § 404.1529; SSR
96-7p, 1996 WL 374186, at *2 (July 2, 1996); Stanley v. Sec’y of Health & Human Servs.,
39 F.3d 115, 117 (6th Cir. 1994). The ALJ ascertains the extent of the work-related
limitations by determining the intensity, persistence, and limiting effects of the claimant’s
symptoms. SSR 96-7p, 1996 WL 374186, at *2 (July 2, 1996).
A claimant’s description of his physical or mental impairments alone is “not
enough to establish the existence of a physical or mental impairment,” 20 C.F.R. §
404.1528(a). Nonetheless, the ALJ may not disregard the claimant’s subjective complaints
about the severity and persistence of the pain simply because they lack substantiating
objective evidence. SSR 96-7p, 1996 WL 374186, at *1 (July 2, 1996). “[O]bjective
evidence of the pain itself” is not required. Duncan v. Sec’y of Health & Human Servs.,
801 F.2d 847, 853 (6th Cir. 1986) (quoting Green v. Schweiker, 749 F.2d 1066, 1071 (3d
Cir. 1984)) (internal quotation marks omitted). Instead, the absence of objective confirming
evidence forces the ALJ to consider the following factors:
(i)
(ii)
(iii)
(iv)

[D]aily activities;
The location, duration, frequency, and intensity of . . . pain;
Precipitating and aggravating factors;
The type, dosage, effectiveness, and side effects of any medication .
. . taken to alleviate . . . pain or other symptoms;
(v) Treatment, other than medication, . . . received for relief of . . . pain;
(vi) Any measures . . . used to relieve . . . pain.
20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); see also Felisky v. Bowen, 35 F.3d 1027,
1039-40 (6th Cir. 1994); SSR 96-7p, 1996 WL 374186, at *3 (July 2, 1996). Furthermore,

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the claimant’s work history and the consistency of his subjective statements are also
relevant. 20 C.F.R. § 404.1527(c); SSR 96-7p, 1996 WL 374186, at *5 (July 2, 1996).
The claimant must provide evidence establishing his RFC. The statute lays the
groundwork for this, stating, “An individual shall not be considered to be under a disability
unless he furnishes such medical and other evidence of the existence thereof as the
Secretary may require.” 42 U.S.C. § 423(d)(5)(A); see also Bowen, 482 U.S. at 146 n.5.
The RFC “is the most he [or she] can still do despite his [or her] limitations,” and is
measured using “all the relevant evidence in [the] case record.” 20 C.F.R. § 404.1545(a)(2).
A hypothetical question to the VE is valid if it includes all credible limitations developed
prior to Step Five. Casey v. Sec. of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir.
1993); Donald v. Comm’r of Soc. Sec., No. 08-14784-BC, 2009 WL 4730453, at *7 (E.D.
Mich. Dec. 9, 2009).
G. Analysis
Yackley argues that the ALJ erred because (1) she failed to properly weigh the RFC
assessment completed by Yackley’s treating physician and (2) substantial evidence does
not support the ALJ’s finding that Yackley was capable of a limited range of medium work
during the period between his alleged onset date and his insurance cutoff date.
1. The ALJ provided good reasons for according limited weight to the
RFC assessment completed by Yackley’s treating physician.
Yackley argues that the ALJ failed to give proper weight to the RFC assessment
completed by his treating physician, Dr. Giordano. (Doc. 14 at 13). Dr. Giordano
completed the assessment at his request in March 2014, (Tr. 422)—more than a year after
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Yackley’s insurance had lapsed. (Tr. 325). She indicated that she had seen Yackley since
2008 for “preventative care” and follow-up for “ongoing chronic conditions,” namely,
hypertension, hyponatremia, obesity, hyperlipidemia, “low back pain,” and “knee pain.”
(Tr. 419). As for treatment, she wrote that Yackley was doing “home exercises for
strengthening/stabilization” and “working on weight loss.” (Id.). According to her
assessment, Yackley would be incapable of even “low stress” jobs due to his back. (Tr.
420). He could walk 30 yards without rest or severe pain, sit for 45 minutes, and stand for
30 minutes; he could sit or stand or walk less than 2 hours total in an 8-hour workday. (Tr.
420-21) He could frequently lift less than 10 pounds, occasionally lift up to 20 pounds, and
never lift 50 pounds. (Tr. 420). Additionally, he could never twist, crouch, or climb ladders,
and could only rarely stoop or bend, although he could occasionally climb stairs. (Tr. 422)
He would need “frequent breaks” from doing repetitive reaching, handling, or fingering,
and “lifting [his arms] up or down would not be well.” (Id.). Dr. Giordano asserted that
Yackley had been so limited since July 29, 2008—the date of his first appointment with
her.
The ALJ assigned only limited weight to Dr. Giordano’s assessment,
explaining, “Relative to the period through December 2012, I do not find Dr.
Giordano’s appraisal to be well supported objectively, or to be consistent with the
record as a whole, or to accurately reflect the claimant’s functionality.” (Tr. 22).
In Yackley’s brief, he asserts that the “ALJ’s statement that Dr. Giordano’s
functional assessment and appraisal were not well supported objectively does not suffice
to satisfy the explanatory requirement of the treating source rule.” (Doc. 14 at 17). He
15

argues that the Sixth Circuit has held that “it is not enough to dismiss a treating physician’s
opinion as ‘incompatible’ with other evidence of record; there must be some effort to
identify the specific discrepancies.” (Doc. 14 at 17-18) (citing Friend v. Comm’r of Soc.
Sec., 375 F. App’x 543, 552 (6th Cir. 2010). Further, Yackley asserts that a finding that a
treating source medical opinion is inconsistent with other substantial evidence in the record
means only that the opinion is not entitled to controlling weight, not that the opinion should
be rejected. (Doc. 14 at 18) (citing Fisk v. Astrue, 253 F.App’x 580, 585 (6th Cir. 2007)).
As an initial matter, it is misleading to suggest that the ALJ rejected Dr. Giordano’s
opinion outright. Rather, the ALJ stated plainly, “I assign limited weight to Dr. Giordano’s
opinion.” (Tr. 22).
Nor is that the sum total of the ALJ’s discussion on this point. Evaluating medical
source statements requires considering factors such as the nature of the source’s examining
relationship with the client, the source’s treatment relationship with the client, the
supportability of the source’s opinion, the consistency of the opinion with the record as a
whole, and whether the source is a specialist opining on areas within her specialty, as well
as “any factors [the claimant] or others bring to [the Commissioner’s] attention, or of which
[the Commissioner] is aware, which tend to support or contradict the opinion.” 20 C.F.R.
§ 416.927(c)(1)-(6). The ALJ is not required to provide an “exhaustive factor-by-factor
analysis,” Francis v. Comm’r of Soc. Sec., 414 F. App’x 802, 804 (6th Cir. 2011), but “will
always give good reasons . . . for the weight” given a “treating source’s opinion.” 20 C.F.R.
§ 416.927(c)(2). The regulations direct the ALJ to give controlling weight to certain
opinions of a treating physician if they are “well-supported by medically acceptable clinical
16

and laboratory diagnostic techniques” and are “not inconsistent with the other substantial
evidence in [the] case record.” 20 C.F.R. § 404.1527(c)(2).
Unfortunately for Yackley, a perusal of the ALJ’s opinion and the record provides
good reason for her decision to assign only limited weight to Dr. Giordano’s opinion. The
ALJ notes that “looking only at the period leading up to the date last insured, the degree of
limitation suggested by Dr. Giordano is not borne out by the record. The clinician’s own
progress notes, discussed above, cite modest findings.” (Tr. 22). An inconsistency between
a treating physician’s opinion and the physician’s own treatment records or the medical
records as a whole can be “a ‘good reason’ to discount treating physician opinion
evidence.” Hudson v. Colvin, No. 15-163-ART, 2015 WL 12684338, at *2 (E.D. Ky. Dec.
23, 2015); see also Bogle v. Sullivan, 998 F.2d 342, 348 (6th Cir. 1993) (affirming an ALJ’s
decision to discount the opinion of a treating physician that was inconsistent with the
physician’s treatment records).
With that, the ALJ directs the reader to a detailed discussion of Dr. Giordano’s notes
conducted earlier in the opinion, which shows particular attention to the two appointments
Yackley had between his alleged onset date and the date when his insurance lapsed. There,
the ALJ notes that on Yackley’s alleged onset date of August 28, 2012, he reported to Dr.
Giordano “instances of knee pain, and back pain that occurred when he was more active
doing outside duties.” (Tr. 19). He also remarked, however, that “he felt pretty good.” (Id.).
The ALJ goes on to describe Dr. Giordano’s own recorded observations that Yackley
appeared

17

well nourished, well developed, and in no distress. The claimant’s blood
pressure was 136/80, and his heart sounds and rhythm were normal. His
lungs were clear to auscultation, and without adventitious sounds, intercostal
retractions or accessory muscle use. The claimant’s abdomen was obese and
negative for tenderness, distention, ascites, organomegaly or masses. The
claimant’s extremities were not clubbed, cyanotic or edematous. No
limitation of motion, neurovascular deficit or gait irregularity was noted. The
claimant displayed no unusual anxiety or evidence of depression . . . .
(Tr. 19) (internal citations omitted).
Next, I note that the Court must examine the administrative record as a whole, and
may consider any evidence in the record, regardless of whether it has been cited by the
ALJ. See Walker v. Secretary of Health and Human Services, 884 F.2d 241, 245 (6th Cir.
1989). Here, the record lends further credence to the ALJ’s finding, as, far from prescribing
any limitations on Yackley’s daily activities or movements, Dr. Giordano in fact instructed
Yackley to “exercise, and to get out and be active.” (Id.). Over the course of their
relationship, Dr. Giordano and her cohorts in the office repeatedly told Yackley to go for
walks or otherwise exercise—after their first appointment, after his alleged onset date, after
his insured status expired, and so on, well into 2014. (Tr. 211, 214, 216, 218, 220, 222,
225, 227, 231, 234, 236, 260, 266, 269, 272, 276, 285, 305, 309, 317, 334, 342). For
example, on Yackley’s alleged onset date, Dr. Giordano instructed him to “get out
moving/exercising” and to “[m]ove your joints!”—hardly the advice a doctor would be
expected to give a patient who cannot walk farther than 30 yards. (Tr. 280).
In October 2012, at Yackley’s only other appointment before his insurance lapsed,
Dr. Giordano reiterated that “[p]atient’s goal is to get out and exercise” and discussed a
“walking program” with him. (Tr. 285-86). Yackley told her that “[i]n nice weather he will
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walk around his trailer park.” (Tr. 286). He reported no back or knee pain whatsoever. (Tr.
285). Indeed, he did not report back pain again for nearly a year after his onset date—
months after his insured status had expired. (Tr. 305). The absence of even a single notation
about back pain in that time stands in stark contrast to Dr. Giordano’s assertion that
Yackley was incapable of working even low-stress jobs due to his back, and that he had
been so limited since July 2008.
Even Dr. Giordano’s own notes from her July 2008 appointment with Yackley call
that assessment into question. At the time, she wrote Yackley was “feeling good” and
played softball and basketball for fun; she encouraged him to exercise for 30 minutes every
day. (Tr. 211). She marked he was “negative for back pain.” (Tr. 212).
Additionally, the ALJ notes that Dr. Giordano’s assessment essentially mirrors
Yackley’s self-reported limitations: “At the time of the request, the claimant informed [Dr.
Giordano] that he believed he was disabled and could not stand more than 25-30 minutes,
that he could not sit more than 45-50 minutes, etc.” (Tr. 22) (internal citation omitted).
Then “Dr. Giordano indicated that the claimant was unable to stand more than 30 minutes,
and was unable to sit more than 45 minutes.” (Id.) (internal citations omitted). An ALJ may
properly reject a treating source’s opinion where it “relies on [the claimant’s] subjective
claims rather than on detailed clinical data.” Gayheart v. Comm’r of Soc. Sec., 710 F.3d
365, 378 (6th Cir. 2011); see also Crum v. Sullivan, 921 F.2d 642, 645 (6th Cir. 1990) (ALJ
properly discounted psychiatrist’s opinion that was made “almost entirely on the basis of
the claimant’s subjective complaints.”).

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Thus, the ALJ provided good reasons to afford only limited weight to Dr.
Giordano’s RFC assessment.
2. Substantial evidence supports the ALJ’s finding that plaintiff was
capable of a limited range of medium work during the period between
his onset date and the insurance cutoff date.
Second, Yackley argues that the ALJ lacked substantial evidence for her finding
that Yackley could perform medium work with some limitations during the relevant period.
“Medium work” involves lifting no more than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds. 20 C.F.R. § 404.1567(c). Medium work also
requires “frequent stooping and crouching.” SSR 83-14. Here, the ALJ found that “through
the date last insured, the claimant had the residual functional capacity to perform medium
work . . . except: he can frequently climb, balance, stoop, kneel, crouch and crawl.” (Tr.
20).
It is true that the ALJ “found the claimant to be a candid and forthcoming
individual,” and emphasized that “he certainly appears to have significant limitation and
dysfunction at the present day.” (Tr. 22). But Yackley’s limitations in the present day are
not at issue. Yackley carried the burden of proving he was disabled between his alleged
date of onset in August 2012 and the expiration of his insured status in December 2012.
He presented only “a modest amount of evidence affiliated with his alleged health
concerns” during that time, (Tr. 22). As the ALJ noted, “[t]he record does not fully support
that claimant’s contentions as to the magnitude of his symptomology and dysfunction,
including his expressed level of pain, and reported need to take breaks and to recline for
extended intervals on most days, as of the date last insured.” (Tr. 21). For example, as
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discussed in Section 1, supra, Yackley’s treating physician repeatedly recommended he
walk or otherwise exercise, from his first appointment with her in 2008 through at least
mid-2014. The ALJ remarked further that “[d]uring the relevant period, the claimant did
not undergo surgical intervention, physical therapy, injection modalities, work hardening
or other aggressive rehabilitation measures.” (Tr. 21). 1
An ALJ may consider the credibility of the claimant when making a disability
determination, and a reviewing court must give great weight to that credibility
determination. Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 542 (6th Cir. 2007).
Inconsistencies within the claimant’s testimony or between his testimony and the medical
record may constitute substantial evidence sufficient to support the ALJ’s decision to treat
the claimant’s testimony “as less than credible.” Id. at 543; see also Walters v. Comm’r of
Soc. Sec., 127 F.3d 525 (6th Cir. 1997) (“Discounting credibility to a certain degree is
appropriate where an ALJ finds contradictions among the medical reports, claimant’s
testimony, and other evidence.”).
Additionally, the ALJ assigned “some weight” to findings made by non-examining
Disability Determination Service physician Quan Nguyen. (Tr. 22). At the initial
determination level, the DDS found insufficient evidence to establish Yackley had a
“severe” impairment during the relevant time. While the ALJ explained that evidence

1

Although I briefly address the ALJ’s determination of Yackley’s credibility, I note that Yackley never
explicitly challenged that determination. Thus, to the extent that his brief relies on the credibility of his
own testimony, it does him little service. “[I]ssues adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation, are deemed waived. ‘It is not sufficient for a party to mention
a possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones.’” Citizens
Awareness Network, Inc. v. United States Nuclear Regulatory Comm'n, 59 F.3d 284, 293–94 (1st
Cir.1995) (citation omitted).

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supplied after the DDS’s determination “persuade[d] me the claimant had a ‘severe’
impairment,” she still “concur[red] with the ultimate DDS determination that the claimant
was not disabled under the Social Security Act through December 2012.” (Tr. 22). Dotson
v. Apfel, No. 99-6163, 2000 WL 1562817, at *2 (6th Cir. Oct. 10, 2000) (holding that
“when considered in the context of the complete record, a non-treating physician’s medical
opinion can constitute substantial evidence”); see, e.g., Atterberry v. Sec’y of Health &
Human Servs., 871 F.2d 567, 571 (6th Cir. 1989).
The ALJ also pointed out that “[w]ithin testimony or the written record, it was
reported that the claimant performed self-care tasks, prepared simple meals, helped his
elderly parents with household chores, took out trash, mowed the lawn, drove an
automobile, shopped (sometimes with an electric cart), played cards, read, watched
television sports, paid bills, and attend[ed] church services.” (Tr. 21) (internal citation
omitted). Yackley challenges only this—the ALJ’s consideration of his daily activities.
(Doc. 14 at 18-23). He argues that “[s]poradic and transitory activities such as hobbies,
household chores, social activities, religious activities and driving an automobile should
not be considered as showing an ability to engage in substantial gainful activities.” (Doc.
14 at 13). But it is entirely appropriate for the ALJ to consider the claimant’s daily
activities, among other factors, when determining his work function—indeed, the
regulations direct the ALJ to do so. 20 C.F.R. § 404.1529(c)(3). For example, in Blacha,
the Sixth Circuit found that the ALJ had “an adequate basis to discount [the claimant’s]
credibility” in part because “some of [his] activities were inconsistent with his claims of
disabling pain.” Blacha v. Sec’y of Health and Human Servs., 927 F.2d 228, 231 (6th Cir.
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1990). “Especially significant,” the court found, was the claimant’s ability to drive. Id.; see
also Morr v. Comm’r of Soc. Sec., 66 F. App’x 210, 212 (6th Cir. 2015) (finding ALJ’s
adverse credibility determination was properly based in part on contradictions between the
claimant’s alleged medical complaints and her “own activities including providing for her
own personal grooming, cleaning, cooking daily for up to an hour, watching television,
washing dishes three time[s] daily, doing laundry, caring for cats, and driving”); Heston v.
Comm’r of Soc. Sec., 245 F.3d 528, 536 (6th Cir. 2001) (finding that the ALJ properly
“considered [the claimant’s] testimony concerning fatigue and shortness of breath in light
of other evidence that [she] regularly walks around her yard for exercise, rides an exercise
bicycle, goes to church, goes on vacation, cooks, vacuums, and makes beds”); Walters v.
Comm’r of Soc. Sec., 127 F.3d 525, 532 (6th Cir. 1997) (finding that the ALJ acted properly
when he took into account that claimant could “run all of his errands, walk two miles,
prepare all of his meals, and drive three times a week”).
Lastly, Yackley asserts that “[t]he Seventh Circuit has cautioned the SSA against
placing undue weight on a claimant’s household activities in assessing the claimant’s
ability to hold a job outside the home.” (Doc. 14 at 15 (citing Mendez v. Barnhart, 439
F.3d 360, 362 (7th Cir. 2006))). But it is not for this Court to reweigh the evidence. See
Mullins v. Sec’y of Health and Human Servs., 680 F.2d 472, 472 (6th Cir. 1982) (“Our task
is not to reweigh the evidence. That is solely the province of the [Commissioner].”). Our
sole duty is to determine whether the ALJ “has made findings of fact unsupported by
substantial evidence in the record.” Sullivan v. Comm’r of Soc. Sec., 595 F. App’x 502, 506
(6th Cir. 2014). If substantial evidence supports the ALJ’s determination, the reviewing
23

court must affirm it, “even if the reviewing court would decide the matter differently and
even if substantial evidence also supports the opposite conclusion.” Cutlip v. Sec’y of
Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994).
Plaintiff requests that the Court reverse the final decision of the Commissioner and
grant disability benefits to Yackley. The Court may do so, however, only if it determines
first that substantial evidence does not support the decision, and then that all essential
factual issues have been resolved and the record adequately establishes the plaintiff’s
entitlement to benefits. Faucher v. Sec’y of Health and Human Services, 17 F.3d 171, 176
(6th Cir. 1994). Here, as the Commissioner’s findings are supported by substantial
evidence, a judicial award of benefits is unjustified.
H. Conclusion
For the reasons stated above, the Court finds that the ALJ’s decision, which
ultimately became the final decision of the Commissioner, is supported by substantial
evidence.
II.

ORDER
In light of the above findings, IT IS ORDERED that Yackley’s Motion for

Summary Judgment, (Doc. 14), be DENIED, the Commissioner’s Motion for Summary
Judgment, (Doc. 17), be GRANTED, and this case be AFFIRMED.
s/ Patricia T. Morris
Patricia T. Morris
United States Magistrate Judge

Date: August 31, 2017

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CERTIFICATION
I hereby certify that the foregoing document was electronically filed this date
through the Court’s CM/ECF system which delivers a copy to all counsel of record.
Date: August 31, 2017

By s/Kristen Castaneda
Case Manager

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