Holland v. Social Security, Commissioner of
Filing
15
ORDER denying 9 Motion for Summary Judgment; granting 13 Motion for Summary Judgment. Signed by District Judge Victoria A. Roberts. (CPin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DENISE HOLLAND,
Plaintiff,
Case No. 13-14091
Hon. Victoria A. Roberts
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
/
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Doc. #
13) AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (Doc. # 9)
I.
INTRODUCTION
This matter is before this Court on the parties’ cross-motions for summary
judgment. Denise Holland (“Holland”) challenges a final determination by the
Commissioner of Social Security (“Commissioner”) denying her application for Social
Security Disability Insurance Benefits.
The Court GRANTS the Commissioner’s Motion for Summary Judgment; and
DENIES Holland’s Motion for Summary Judgment.
II.
SOCIAL SECURITY ACT DISABILITY BENEFITS FRAMEWORK
Under 42 U.S.C. § 423, a wage earner suffering from a disability is entitled to
disability benefits. The act defines disability as an “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
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for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
The claimant bears the burden to prove entitlement to benefits. Dice v. Comm'r of
Soc. Sec., No. 12-CV-11784, 2013 WL 2155528, at *6 (E.D. Mich. Apr. 19, 2013). To
determine if a person is disabled, and eligible for benefits, the Commissioner uses a
five-step sequential analysis:
Step One: If the claimant is currently engaged in substantial gainful
activity, benefits are denied without further analysis.
Step Two: If the claimant does not have a severe impairment or
combination of impairments, that significantly limits ... physical or mental
ability to do basic work activities, benefits are denied without further
analysis.
Step Three: If plaintiff is not performing substantial gainful activity, has a
severe impairment that is expected to last for at least twelve months, and
the severe impairment meets or equals one of the impairments listed in
the regulations, the claimant is conclusively presumed to be disabled
regardless of age, education or work experience.
Step Four: If the claimant is able to perform his or her past relevant work,
benefits are denied without further analysis.
Step Five: Even if the claimant is unable to perform his or her past
relevant work, if other work exists in the national economy that plaintiff can
perform, in view of his or her age, education, and work experience,
benefits are denied.
Id. (citing 20 CFR § 404.1520). For the first four steps, the claimant bears the burden to
prove the severity of impairment and that it precludes performing work. Spreeman v.
Comm'r of Soc. Sec., No. 12-12641, 2013 WL 5212023, at *2 (E.D. Mich. Sept. 16,
2013). At the fifth step, the burden shifts to the Commissioner to show that other jobs
exist in the national economy that the claimant is qualified to perform despite
impairment. Id. To meet this burden, the Commissioner’s decision must be supported by
substantial evidence. Varley v. Sec'y of Health & Human Servs., 820 F.2d 777, 779 (6th
2
Cir. 1987). Substantial evidence may be produced through reliance on the testimony of
a vocational expert in response to a hypothetical question, but only if the question
accurately portrays the claimant’s individual physical and mental impairments. Id.
III.
BACKGROUND AND ADMINISTRATIVE HISTORY
A.
Background
Holland worked as a school bus driver. She was diagnosed with breast cancer
and underwent a partial mastectomy. Holland then began chemotherapy and eventually
radiation treatments. As a result of the treatments, Holland suffered from many side
effects; she was lethargic and had memory problems. She lost weight and suffered from
numbness in her fingers and toes. Early in her recovery she relied heavily on friends
and family to aid her in completing basic household tasks, such as preparing meals,
doing laundry, and running errands. As time progressed Holland’s condition improved.
Her doctors reported that Holland tolerated her treatments well; however, she still had
some residual side effects, such as numbness in her fingers and toes, sores on her feet,
and headaches. Holland eventually returned to work as a bus driver; however, the
numbness in her fingers and toes prevented her from being able to drive as efficiently
as she once had, and her feet were unable to feel operating pedals.
On February 23, 2011, Holland filed for disability benefits. Her claim was denied
on May 3, 2011. Holland proceeded to request a hearing. On February 9, 2012, Holland
appeared with counsel before Administrative Law Judge (“ALJ”) Kevin Fallis for the
disability hearing. During the hearing, Holland testified about her impairments, and
Vocational Expert (“VE”) Kimberly Warner also testified. On April 18, 2012, the ALJ
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denied Holland benefits. The ALJ said Holland undoubtedly suffered from pain and
difficulties due to her illness; however, she was not disabled as defined by the Social
Security Act. The Appeals Council denied Holland’s request for review, and the decision
of the ALJ became the final decision of the Commissioner.
Holland now seeks judicial review. She says the ALJ erred because the
hypothetical questions posed to the VE did not adequately represent her impairments.
She also says the ALJ failed to give proper weight to the medical records of her treating
physicians. Holland also claims the ALJ erred when he said Holland was not credible
when she testified about the severity of her symptoms. The Commissioner says the ALJ
did not commit error and the decision is supported by substantial evidence.
B.
Administrative Record
1.
Relevant Medical Records
Holland sought treatment from multiple doctors and specialists. In March 2010,
Dr. Christopher Ash diagnosed Holland with breast cancer, more specifically, a poorly
differentiated carcinoma. (Tr. 176). On April 30, 2010, Holland underwent a
lumpectomy. On May 10, 2010, Dr. Ash reported that Holland’s breast was healing well,
and she was ready to see an oncologist. (Tr. 177). On May 24, 2010, Dr. Ash reported
that Holland was doing well, “her incision is healing nicely,” and “she is without other
complaints.” Id. On June 7, 2010, Dr. Ash reported that Holland was “doing really well.”
Id. On July 19, 2010, Dr. Ash reported that Holland was “in the middle of chemo and
doing fairly well but looks tired.” Id. On September 13, 2010, Dr. Ash reported that
Holland was “down in the dumps,” and “still hasn’t really kind of worked on accepting
the fact that this is what is going on with her,” but “[e]xamination wise, she looks great.”
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Id. On October 25, 2010, Dr. Ash reported that Holland was midway through
chemotherapy, and would soon begin radiation therapy. Her breasts were examined
without any palpable lesions or worries. (Tr. 178). On January 10, 2011, Dr Ash
reported that Holland was doing really well. Id.
Dr. Rizwan Danish treated Holland and reported on May 28, 2010 that Holland
was recovering from surgery uneventfully. (Tr. 249 - 250). The report said Holland was
“active, ambulatory and eating well.” Id. Dr. Danish also reported that Holland’s
“extremity examination is unremarkable” and her “axillary wounds are well healing.” The
doctor did note that Holland had a “significant risk of disease recurrence because of
unfavorable biologic features of the tumor...Therefore, adjuvant chemotherapy is
strongly recommended to her and will improve her chance of survival significantly.
Adjuvant radiation therapy after the completion of chemotherapy is also recommended.”
Id. On July 9, 2010, Dr. Danish reported Holland’s appetite was fair, she was fatigued,
but denied pain. (Tr. 244). On July 30, 2010, Dr. Danish reported that Holland had some
lesions and discharge on her pelvic area, discharge from her eyes, constipation, but an
improving appetite. (Tr. 243). On August 6, 2010, Dr. Danish reported that Holland
denied pain, lesions in her pelvic area were improving, and her appetite was fair. (Tr.
242). On September 17, 2010, Dr. Danish reported that there were zero changes since
Holland’s visit on August 27, 2010, Holland denied pain, and her appetite was
improving. (Tr. 240). On October 15, 2010, Dr. Danish reported that Holland suffered
from night sweats and hot flashes. Holland also complained of numbness in her fingers,
tongue, and toes. (Tr. 239). On November 5, 2010, Dr. Danish reported that Holland
was in the same condition as was reported on October 15, 2010, but noted that Holland
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denied pain, and had a good appetite. (Tr. 238). In a letter to Dr. Ash dated that same
day, Dr. Danish wrote that Holland feels well, has completed chemotherapy, and is in
complete clinical remission. (Tr. 247). On January 4, 2011, Dr. Danish reported that
Holland was suffering from a sore throat and back pain. (Tr. 236). On February 23,
2011, Dr. Danish reported that Holland was suffering from sensitivity to lights, and some
pain, but her appetite was good. (Tr. 235). In a letter to Dr. Ash dated the same day,
Dr. Danish wrote Holland “continues to complain of paresthesias in the tips of her
fingers and balls of her feet. She tells me that she has trouble feeling the gas pedal.”
(Tr. 246).
Holland consulted Dr. Haesook Kim, a radiation oncologist, for radiation
treatments. The consultation report stated Holland was receiving chemotherapy and she
had some numbness in her fingers and feet related to chemotherapy, but she had no
other complaints and denied any other symptoms. (Tr. 276). On January 26, 2011, Dr.
Kim reported that Holland “tolerated treatment very well without any unusual side effects
of the treatment.” And, “[a]t the conclusion of radiation treatment, she felt fine and
denied any complaints.” (Tr. 275). On February 25, 2011, Dr. Kim wrote that Holland
was given a radiation treatment, her appetite improved, her energy level significantly
improved, and she was doing well. (Tr. 274). The report noted that Holland complained
of residual tingling and numbness in her fingertips and toes related to chemotherapy. Id.
On June 29, 2011, Dr. Kim reported Holland was doing well and denied any particular
complaints. (Tr. 341). The tingling and numbness of the fingertips have improved, but
the symptoms in the toes remain unchanged. Id. Dr. Kim was satisfied with Holland’s
progress and said Holland will be examined again in six months and then discharged
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from follow up care. Id.
2.
Hearing Testimony
Holland testified she had a lumpectomy and underwent chemotherapy and
radiation treatments. As a result, she suffered from headaches, sensitivity to light, and
numbness in her hands and feet. (Tr. 39 - 40). During the closed period of April 30,
2010 to August 15, 2011, which is the time Holland was off of work, Holland had trouble
going up and down stairs. (Tr. 30). She was able to do some laundry, and prepare some
meals; however, while cooking she would often cut her fingers because she could not
feel the knife. (Tr. 31). She testified that while doing chores she would often take breaks
and nap up to six times a day. (Tr. 32). Holland said she would regularly sleep for eight
hours, but sleep was disrupted due to pain. (Tr. 33). Holland also said she lost thirty
pounds. Id. And, she had trouble concentrating and remembering things. (Tr. 42 - 43).
Holland said she was unable to lift more than five pounds, stand for more than 20
minutes, or sit or walk continuously for any period of time exceeding 30 minutes. (Tr. 40
- 41).
At one point Holland’s entire foot was numb, but by the time she testified, only
the ball of her foot was numb. Id. She also said she had a plantar’s wart removed and
the podiatrist did not have to numb her foot because she could not feel anything. Id.
Holland testified that she did not drive, so friends or family drove her. One time,
while driving, she had a panic attack and had to be picked up. (Tr. 34).
Holland returned to work as a bus driver. (Tr. 35). Her employer accommodated
her side effects by providing her with a specialized bus that enabled her better hand
control. The employer allowed co-workers to help lift the hood of her bus while she
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completed her engine inspection, and allowed her to wear extra padding under her
seatbelt. (Tr. 49). Holland said she still suffered from numbness in her fingers and toes,
and she was unable to feel the bus pedals. (Tr. 35). She admitted that due to her
condition she should not be driving. (Tr. 52).
3.
Hypothetical Questions and Vocational Expert
The ALJ proposed four hypothetical questions to VE Kimberly Warner. The first
hypothetical asked what jobs would be available to a person who would be able to
perform:
at the light level which is lift up to 20 pounds occasionally,
lift, carry up to ten pounds frequently, stand, walk for about
six hours and sit for up to six hours in an eight hour work day
with normal breaks. This individual can never operate foot
controls with either lower extremity. [She] can never climb
ladders, ropes or scaffolds, [She] could occasionally climb
ramps or stairs, occasionally perform balancing, stooping,
kneeling, crouching, and crawling. [She] would be limited
bilaterally to frequent handling and fingering of objects and
limited to frequent feeling bilaterally. [She] would have to
avoid all exposure to unprotected heights. Additionally, work
would be limited to simple, routine, repetitive tasks
performed in a work environment free of fast paced
production requirements involving only simple work related
decisions and routine work place changes.
(Tr. 55). The VE said such a person could work as an information clerk, counter clerk,
and an office helper. (Tr. 56).
The second hypothetical contained the same limitations as the first hypothetical
except the person would be limited to sedentary work, which means the person could lift
up to ten pounds occasionally, stand, walk for two hours, and sit for up to six hours in an
eight hour work day with normal breaks. Id. The VE testified there would be work as a
credit checker, document preparer, and a visual surveillance system monitor. (Tr. 56 8
57).
In hypothetical three, the individual would be limited “bilaterally to only occasional
handling and fingering of objects and feeling of objects.” (Tr. 57). The VE testified that
the jobs available would be information clerk, counter clerk, visual surveillance system
monitor, and credit checker. (Tr. 58).
In hypothetical four the person would be limited to “handling, fingering and feeling
to never,” which the VE testified would result in the elimination of all jobs except visual
surveillance system monitor. Id.
In hypothetical five, the person would be off task 20% of the time. (Tr. 58). The
VE testified that would preclude all employment. (Tr. 58 - 59).
In hypothetical six the individual would be absent from work for two days a month
due to symptom side effects, and doctor visits. (Tr. 59). The VE testified all employment
would be precluded. Id.
C.
ALJ Findings
The ALJ applied the five-step sequential analysis, and concluded that Holland
was not disabled.
At step one, the ALJ found that Holland has not engaged in substantial gainful
activity since April 29, 2010.
At step two, he concluded Holland suffered from multiple severe impairments:
status post left breast cancer with radiation and chemotherapy with residual neuropathy
of toes and fingers and headaches.
At step three, the ALJ found Holland does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the
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listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
At step four, he found Holland was unable to perform past relevant work, but her
residual functional capacity allowed her to perform light work with some limitations.
Holland could never operate foot pedals with the bilateral lower extremities. She could
never climb ladders, ropes, or scaffolds. She was limited to occasional climbing of
ramps or stairs, and occasional balancing, stooping, kneeling, crouching, and crawling.
She could frequently handle objects, fingering, and feeling. She should avoid exposure
to excessive vibration, use of moving machinery, and exposure to unprotected heights.
And, the ALJ limited her to work that is simple, routine, and repetitive. Moreover, work
tasks should be performed in an environment free of past-paced production
requirements, and involve only simple work related decisions with routine work place
changes due to headaches and pain.
The ALJ did not believe Holland’s testimony concerning the intensity,
persistence, and limiting effects of her symptoms to the extent they were inconsistent
with the residual functional capacity assessment. The ALJ said he believes Holland still
suffers from side effects of chemotherapy and radiation: numbness and headaches.
However, those side effects were not interfering with Holland’s ability to perform work
tasks. The ALJ notes, Holland testified that after chemotherapy she was unable to write
or hold a pen, but she was able to fill out the lengthy handwritten Headache Form and
Function Report. The ALJ gave great weight to Dr. Kim’s February 23, 2011, report that
stated Holland was in complete remission. And, the ALJ considered the April 4, 2011,
Function Report which said Holland could prepare meals, clean, shop, wash dishes,
walk, drive, and ride in a car. Moreover, the ALJ gave weight to other medical reports,
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such as the June 29, 2011, report that said Holland was doing well and had no
complaints.
At step five, based on the testimony of the VE, and after considering Holland’s
age, education, work experience, and residual functional capacity, the ALJ found that
there are jobs that exist in significant numbers in the national economy that Holland can
perform, such as an information clerk, counter clerk, and office helper.
IV.
STANDARD OF REVIEW
A person may seek judicial review of any final decision of the Commissioner of
Social Security; however, the findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive. 42 U.S.C. § 405.
“Substantial evidence is more than a scintilla of evidence but less than a
preponderance and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Brainard v. Sec’y of Health & Human Servs., 889
F.2d 679, 681 (6th Cir. 1989) (citing Consol. Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)). Substantial evidence exists when a reasonable mind could accept the
evidence as adequate to support the challenged conclusion, even if that evidence could
also support the opposite conclusion. Casey v. Sec’y of Health and Human Servs., 987
F.2d 1230, 1233 (6th Cir. 1993). And, if the Commissioner’s decision is supported by
substantial evidence, it must stand, regardless of whether the Court would resolve the
disputed facts differently. Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir. 1993)
“In determining whether the Secretary's factual findings are supported by
substantial evidence, a court must examine the evidence in the record taken as a
whole, and take into account whatever in the record fairly detracts from its weight.”
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Id. (citations omitted). Thus, in reviewing the Commissioner’s decision, the court may
consider only the record that was before the ALJ, and cannot review the evidence de
novo, weigh the evidence, or make credibility determinations. See, id.
V.
ANALYSIS
A.
Hypothetical
Holland challenges the hypothetical posed to the VE and relied upon by the ALJ.
She says the hypothetical does not consider all of Holland’s limitations; therefore, the
VE’s testimony does not constitute substantial evidence. But, Holland fails to identify
which medical impairment was omitted from the hypothetical, or how the hypothetical is
deficient in describing her limitations.
The Sixth Circuit stated that “issues which are adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation, are deemed
waived.” Kennedy v. Comm'r of Soc. Sec., 87 F. App'x 464, 466 (6th Cir. 2003). See
also, Dice, 2013 WL 2155528, at *7 (“It is not sufficient for a party to mention a possible
argument in a most skeletal way, leaving the court to ... put flesh on its bones... This
court need not make the lawyer's case by scouring the party's various submissions to
piece together appropriate arguments.”)(citations omitted). Holland cannot simply claim
that “[b]ecause each element of the hypothetical does not accurately describe [Holland]
in all significant, relevant respects, the VE’s testimony at the hearing should not
constitute substantial evidence.” Holland has to identify for the Court what exactly was
inaccurate or insufficient about the hypothetical in order for it to make a ruling. Since
Holland fails to identify how the hypothetical fails to describe Holland, the Court deems
this argument waived.
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However, even if the argument was not waived, the Court finds there is
substantial evidence to support the hypothetical questions. The ALJ said Holland
suffered from “status post left breast cancer with radiation and chemotherapy with
residual neuropathy of toes and fingers and headaches.” Each hypothetical posed to the
VE took into account Holland’s foot limitations by eliminating the operation of foot
pedals, and eliminating the climbing of ladders, ropes, and scaffolds. The hypothetical
limited Holland to occasional climbing of stairs, ramps, crawling, stooping and
balancing. The ALJ limited the hypothetical scenario to work that is simple, routine, and
repetitive in order to accommodate her headaches and pain. (Tr. 16). Moreover,
although the ALJ ultimately found Holland’s testimony regarding her hand limitations not
credible, he did propose two hypothetical scenarios that represented her hand
capabilities. One hypothetical limited the individual to occasional handling and fingering
of objects, and another hypothetical limited the individual to frequent handling and
fingering of objects. Both scenarios produced jobs in the national economy. Thus, the
hypothetical scenarios were representative of Holland’s impairments.
B.
Treating Physicians’ Opinions
Holland says the ALJ erred when he improperly disregarded the medical records
of her treating physicians. If a treating physician's opinion concerning the nature and
severity of a claimant's impairment is well-supported by the medical record, and it is not
inconsistent with the other substantial evidence, the Commissioner will give the opinion
controlling weight. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 530 (6th Cir. 1997)
(citing 20 C.F.R. § 404.1527(d)(2)). However, the Commissioner is not bound to adopt
the opinions of a treating physician when the physician simply documents the claimant’s
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symptoms and makes no assertion that the claimant’s impairments rendered her unable
to perform work functions. Walters, 127 F.3d at 530. The ALJ may reject the opinion of
a treating physician when good reason is found in the record to do so. Workman v.
Comm'r of Soc. Sec., 105 F. App'x 794, 800 (6th Cir. 2004). See also, id. (“The ALJ
rejected [the treating physician’s] assessment because it was inconsistent with other
medical evidence of record, [claimant’s] restrictions were not found anywhere in his
treatment records... and there is no indication the ALJ relied on the assessment of the
two state agency physicians as his basis for disregarding [the treating physician’s]
opinion.”).
Holland’s treating physicians noted that Holland complained of numbness in her
fingers and toes, but none said Holland’s ailments were so severe and disabling as to
preclude her from performing work activities. See also, Walters, 127 F.3d at 530.
(“[claimant] is unable to direct this court to any portion of [treating physician’s] records
which support the claim that his impairments are disabling.”). In fact, the ALJ noted that
“no treating or examining physician has indicated findings that would satisfy the severity
requirements of any listed impairment.” (Tr. 41). Instead, there is medical evidence that
supports the conclusion that Holland was doing well and had a healthy prognosis. For
instance, Dr Ash reported that Holland was doing really well. (Tr. 178). And, Dr. Kim
reported that Holland tolerated treatment very well without any unusual side effects, and
that her energy level improved. (Tr. 274). In addition, Dr. Kim reported that although
there was residual tingling and numbness in the fingertips and toes, Holland denied any
particular complaints. (Tr. 341). Moreover, the tingling and numbness of the fingertips
had improved Id. Thus, the ALJ did not erroneously discredit the treating physicians’
14
opinions; rather, the ALJ relied on the treating physicians’ reports, and their lack of
indication that Holland’s symptoms were severe, to come to his conclusion. The ALJ did
not err.
C.
Credibility Assessment
Holland says the ALJ erred when he rejected Holland’s testimony about the
intensity and severity of her symptoms as “not credible.” Holland says her testimony is
supported by medical evidence on record. For example, Holland identifies a medical
record from March 2010, which says Holland came in “with a breast mass in her left
breast” and that it hurts to touch. She also relies on a record from October 2010 that
says Holland was undergoing chemotherapy and would begin radiation. Moreover, she
relies on a record from April 2010, which says Holland suffered from a “left partial
mastectomy with sentinel lymph node biopsy. And finally, Holland points to a record that
says she has a significant risk of disease recurrence due to unfavorable biological
features of the tumor.
Courts are deferential to an ALJ's credibility assessment because an ALJ is in
the position to observe a witness's demeanor and credibility; however, a credibility
assessment must be supported by substantial evidence. Walters, 127 F.3d at 531.
Discounting the credibility of a claimant to a certain degree is appropriate when the ALJ
finds contradictions among the medical records, claimant's testimony, and other
evidence. Id. at 532. Moreover, an “ALJ may also consider household and social
activities engaged in by the claimant in evaluating a claimant's assertions of pain or
ailments.” Id.
The ALJ did not err when he found Holland’s testimony concerning the severity of
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her symptoms to be less than credible. The ALJ’s credibility assessment is supported by
substantial evidence. The ALJ gave great weight to Holland’s own medical records,
such as the fact that Holland was in complete remission, and the subsequent records
which indicate she was doing well and had no complaints. He found Dr. Kim’s June 29,
2011 report particularly persuasive. Moreover, the ALJ examined Holland’s Function
Report and noted that while Holland stated she was unable to write with a pen, she was
able to handwrite the Function Report and Headache Report. In addition, the ALJ
considered Holland’s activities. He noted she was able to clean, shop, do laundry, wash
dishes, prepare meals, walk, drive, ride in a car, and complete work activities.
Ultimately, the ALJ found that although Holland was unable to perform past work, she
could perform other work. Therefore, the ALJ’s credibility assessment and decision
were supported by substantial evidence.
VI.
CONCLUSION
The Commissioner’s decision is supported by substantial evidence. The Court
GRANTS the Commissioner’s Motion for Summary Judgment; and DENIES Holland’s
Motion for Summary Judgment.
IT IS ORDERED.
S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: January 15, 2015
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The undersigned certifies that a copy of
this document was served on the
attorneys of record by electronic means or
U.S. Mail on January 15, 2015.
S/Carol A. Pinegar
Deputy Clerk
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