Daniels v. Social Security

Filing 20

OPINION AND ORDER denying 11 Motion for Summary Judgment; granting 17 Motion for Summary Judgment. Signed by Magistrate Judge Stephanie Dawkins Davis. (THal)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KENNETH DANIELS,

Case No. 16-13798

Plaintiff,

Stephanie Dawkins Davis
United States Magistrate Judge

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_____________________________________/

OPINION AND ORDER
CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkt. 11, 17)
I.

PROCEDURAL HISTORY
A.

Proceedings in this Court

On October 25, 2016, plaintiff filed the instant suit seeking judicial review
of the Commissioner’s decision disallowing social security disability benefits.
(Dkt. 1). Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(b)(3), District
Judge Thomas L. Ludington referred this matter to the undersigned magistrate
judge for the purpose of reviewing the Commissioner’s decision denying
plaintiff’s claims. (Dkt. 2). On February 2, 2017, the parties filed a notice of
consent to this Magistrate Judge’s authority, which was signed by Judge
Ludington on February 6, 2017. (Dkt. 13, 14). The matter is before the Court on
cross-motions for summary judgment. (Dkt. 11, 17, 18). A hearing on the cross-

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motions for summary judgment was held on December 5, 2017, pursuant to notice.
(Dkt. 19).
B.

Administrative Proceedings

On September 27, 2013, plaintiff filed claims for period of disability and
disability insurance benefits, alleging disability beginning May 1, 2010. (Tr. 189).
Plaintiff amended the alleged onset date to September 7, 2013. (Tr. 15). The
Commissioner initially denied plaintiff’s disability application on January 24,
2014. Id. Thereafter, plaintiff requested an administrative hearing, and on
February 18, 2015, he appeared with counsel before Administrative Law Judge
(“ALJ”) Anthony M. Smereka, who considered his case de novo. (Tr. 27-63). In
an October 8, 2015 decision, the ALJ determined that plaintiff was not disabled
within the meaning of the Social Security Act. (Tr. 12-22). The ALJ’s decision
became the final decision of the Commissioner on September 22, 2016, when the
Social Security Administration’s Appeals Council denied plaintiff’s request for
review. (Tr. 1-6).
For the reasons set forth below, the undersigned DENIES plaintiff’s motion
for summary judgment, GRANTS defendant’s motion for summary judgment, and
AFFIRMS the findings of the Commissioner.
II.

FACTUAL BACKGROUND
Plaintiff was 55 years old, placing him in the “advanced age” category, on
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the date he filed his application. (Tr. 21). Plaintiff has past relevant work as a
sales person, which is skilled and medium as performed. Id. Plaintiff suffers from
abdominal pain, obesity, congestive heart failure, atrial fibrillation, obstructive
sleep apnea, and diverticulitis. (Tr. 17). The ALJ applied the five-step disability
analysis to plaintiff’s claims and found at step one that plaintiff did not engage in
any substantial gainful activity since the application date. (Tr. 17). At step two,
the ALJ found that plaintiff had the following severe impairments: status post
hernia repair and obesity. Id. The ALJ found the remainder of plaintiff’s
impairments to be non-severe.
At step three, the ALJ found that plaintiff did not have an impairment or
combination of impairments that met or equaled one of the listings in the
regulations. Id. at 17-18. The ALJ assessed plaintiff’s residual functional
capacity (RFC) as follows:
After careful consideration of the entire record, I find
that the claimant has the residual functional capacity to
perform medium work as defined in 20 CFR 416.967(c)
except the claimant must avoid exposure to workplace
hazards (e.g. unprotected heights or around dangerous
moving machinery). The claimant cannot climb
ladders/ropes/scaffolds; can occasionally climb
ramps/stairs; can frequently balance, kneel, crouch, and
crawl.
Id. at 18. At step four, the ALJ determined that plaintiff could perform his past
relevant work as a sales person. Id. at 20-21. In the alternative, at step five, the
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ALJ found that, given plaintiff’s age, education, work experience and RFC, a
significant number of jobs exists in the national economy that plaintiff is capable
of performing. Id. at 21-22. Therefore, the ALJ concluded that plaintiff has not
been under a disability from the application date through the date of the decision.
Id. at 22.
III.

DISCUSSION
A.

Standard of Review

This Court has original jurisdiction to review the Commissioner’s final
administrative decision pursuant to 42 U.S.C. § 405(g). Judicial review under this
statute is limited in that the court “must affirm the Commissioner’s conclusions
absent a determination that the Commissioner has failed to apply the correct legal
standard or has made findings of fact unsupported by substantial evidence in the
record.” Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005);
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). In deciding
whether substantial evidence supports the ALJ’s decision, “we do not try the case
de novo, resolve conflicts in evidence, or decide questions of credibility.” Bass v.
McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Garner v. Heckler, 745 F.2d 383,
387 (6th Cir. 1984). “It is of course for the ALJ, and not the reviewing court, to
evaluate the credibility of witnesses, including that of the claimant.” Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007). “However, the ALJ is not
4

free to make credibility determinations based solely upon an ‘intangible or
intuitive notion about an individual’s credibility.’” Rogers, 486 F.3d at 247,
quoting Soc. Sec. Rul. 96-7p, 1996 WL 374186, *4.
If supported by substantial evidence, the Commissioner’s findings of fact
are conclusive. 42 U.S.C. § 405(g). Therefore, this Court may not reverse the
Commissioner’s decision merely because it disagrees or because “there exists in
the record substantial evidence to support a different conclusion.” McClanahan v.
Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006); Mullen v. Bowen, 800
F.2d 535, 545 (6th Cir. 1986) (en banc). 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, 486
F.3d at 241; Jones, 336 F.3d at 475. “The substantial evidence standard
presupposes that there is a ‘zone of choice’ within which the Commissioner may
proceed without interference from the courts.” Felisky v. Bowen, 35 F.3d 1027,
1035 (6th Cir. 1994) (citations omitted), citing Mullen, 800 F.2d at 545.
The Commissioner’s regulations provide that disability is to be determined
through the application of 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
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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.
Carpenter v. Comm’r of Soc. Sec., 2008 WL 4793424 (E.D. Mich. 2008), citing,
20 C.F.R. §§ 404.1520, 416.920; Heston, 245 F.3d at 534. “If the Commissioner
makes a dispositive finding at any point in the five-step process, the review
terminates.” Colvin, 475 F.3d at 730.
“Through step four, the claimant bears the burden of proving the existence
and severity of limitations caused by her impairments and the fact that she is
precluded from performing her past relevant work.” Jones, 336 F.3d at 474, cited
with approval in Cruse, 502 F.3d at 540. If the analysis reaches the fifth step

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without a finding that the claimant is not disabled, the burden transfers to the
Commissioner. 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 [claimant] could perform
given [his] RFC and considering relevant vocational factors.” Rogers, 486 F.3d at
241; 20 C.F.R. §§ 416.920(a)(4)(v) and (g).
If the Commissioner’s decision is supported by substantial evidence, the
decision must be affirmed even if the court would have decided the matter
differently and even where substantial evidence supports the opposite conclusion.
McClanahan, 474 F.3d at 833; Mullen, 800 F.2d at 545. In other words, where
substantial evidence supports the ALJ’s decision, it must be upheld.
B.

Evaluation of Plaintiff’s Testimony/Credibility

At the hearing, plaintiff testified that the condition that prevents him from
working is constant, ongoing abdominal pain that makes it difficult for him to sit
for extended periods of time or wear clothing that covers his abdomen, and makes
it hard for him to travel in a car. (Tr. 41). He also discussed his history of
diverticulitis that was “too bad to scope,” and abdominal surgery that left him
“fully gutted,” with a large incision and recurrent post-operative infections. Id. at
43-44. Subsequently, he developed a hiatal hernia that required another surgery
because the infections made his abdominal wall weaker; and shortly after this
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surgery, severe pain caused him to go back to the emergency room where he
received blood transfusions due to blood loss. Id. at 45. ER personnel
encountered heavy scarring when trying to draw out the blood that had collected in
his abdomen. Id. Doctors have told him that his symptoms attributable to scar
tissue from the surgeries, are “basically how it is going to be,” and that he will
need to deal with the pain. Id. at 37, 48-49. He stated that he is treating with Dr.
Richter for pain management, and taking Methadone twice per day, Gabapentin
three times a day, and Tramadol as needed. Id. at 42, 47. Plaintiff explained that
he is most comfortable reclining with his pants undone, or lying on his side. He
also explained that if he was not required to sit in a chair during the hearing, he
would instead be in those positions. Id. at 49. He testified that driving to the
hearing increased his pain from a 4-5 to a 7-8, and predicted that he would be
spending a good deal of the next day lying down. Id. at 46-48.
The ALJ did not find plaintiff’s testimony fully credible, reasoning as
follows:
… the medical record does not support the degree of
dysfunction alleged. The claimant admitted the primary
reason he cannot sustain employment is due to
abdominal pain. The record however, does not contain
any treatment beyond prescription of pain medication
since his surgeries. Practitioners even noted his
medication regime was relieving his pain to an
acceptable level (Exhibit 6F, 8F). The claimant admitted
he has not received any “draining” in the last year and
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has not been checked for this. The claimant’s reported
activities further degrade his credibility. He admitted he
cares for his father who has dementia, has “no problem”
performing personal care tasks, prepares his own meals,
completes household chores, and drives a motor vehicle
(Exhibit 3E).
As for the opinion evidence, Dr. Richter concluded the
claimant could not perform medium work on a sustained
basis (Exhibit 7F). He provided no support for this
conclusion and I give this statement little weight.
Disability Determination Services (DDS) medical
consultant B.D. Choi, M.D. concluded the claimant
could perform medium work with occasional climbing
and frequent balancing, stooping, kneeling, crouching,
and crawling. Although not an examining source, Dr.
Choi supported his conclusions with objective findings.
Further, he has experience evaluating Social Security
Disability claims. I give this opinion significant weight.
(Tr. 19-20).
Credibility determinations concerning a claimant’s subjective complaints
are peculiarly within the province of the ALJ. See Gooch v. Sec’y of Health &
Human Servs., 833 F.2d 589, 592 (6th Cir. 1987). “It [i]s for the [Commissioner]
and his examiner, as the fact finders, to pass upon the credibility of the witnesses
and weigh and evaluate their testimony.” Heston v. Comm’r of Soc. Sec., 245 F.3d
528, 536 (6th Cir. 2001) (quoting Myers v. Richardson, 471 F.2d 1265, 1267 (6th
Cir. 1972)). As the Sixth Circuit has held, determinations of credibility related to
subjective complaints of pain rest with the ALJ because “the ALJ’s opportunity to
observe the demeanor of the claimant ‘is invaluable, and should not be discarded
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lightly.’” Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 538 (6th Cir.
1981) (citation omitted). “Upon review, [the court must] accord to the ALJ’s
determinations of credibility great weight and deference particularly since the ALJ
has the opportunity, which [the court] d[oes] not, of observing a witness’s
demeanor while testifying.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th
Cir. 2003). Thus, an ALJ’s credibility determination will not be disturbed “absent
compelling reason.” Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001). The ALJ
is not required to accept the testimony of a claimant if it conflicts with medical
reports, the claimant’s prior statements, the claimant’s daily activities, and other
evidence in the record. See Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531
(6th Cir. 1997). Rather, when a complaint of pain or other symptoms is at issue,
once the ALJ finds the claimant has a medical condition that could reasonably be
expected to produce the alleged symptoms, he must consider “the entire case
record, including the objective medical evidence, statements and other information
provided by treating or examining physicians . . . and any other relevant evidence
in the case record” to determine if the claimant’s claims regarding the level of his
pain are credible. SSR 96-7p, 1996 WL 374186, at *1; see also 20 C.F.R.
§ 416.929. Consistency between the plaintiff’s subjective complaints and the
record evidence ‘tends to support the credibility of the [plaintiff], while
inconsistency, although not necessarily defeating, should have the opposite
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effect.” Kalmbach v. Comm’r of Soc. Sec., 409 Fed. Appx. 852, 863 (6th Cir.
2011).
Plaintiff claims that the ALJ’s conclusion that plaintiff’s “reported activities
further degrade his credibility,” stems from a misrepresentation regarding
plaintiff’s statements, and the ALJ’s selectively identifying the evidence regarding
plaintiff’s reported level of activity. The ALJ cites to Exhibit 3E, plaintiff’s selfcompleted Function Report – Adult to support his observation that plaintiff helped
care for his father. (Tr. 232-239). However, plaintiff insists that he did not make
any reference to taking care of his father on this form, and, in fact, denied that he
was helping take care of another person at that time. Id. at 234. Plaintiff notes
that “preparing his own meals” consists of fixing sandwiches and microwave
prepared meals, 5-10 minute tasks; and his condition has caused this function to
change because he can only stand for short periods, which is considerably more
limited than the ALJ infers. Id. Similarly, plaintiff “completes household chores”
such as loading the dishwasher, doing laundry or doing light pick-up no more than
10-15 minutes daily. Id. Further, plaintiff does not indicate that he drives when
he goes out. Id. Thus, plaintiff asserts that the ALJ overstated the level of
functioning plaintiff reported and failed to acknowledge that plaintiff indicated on
the same form significantly restricted functions such as: not being able to walk
more than two blocks; not being able to sit for more than thirty minutes without
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putting his feet up; not shopping; and being limited to lifting only light loads. Id.
at 232, 234, 235, 237.
Conversely, the Commissioner maintains that the ALJ appropriately
considered plaintiff’s activities of daily living. (Tr. 19-20). Plaintiff reported that
he handled his personal care, prepared his own meals, loaded the dishwasher, did
laundry, did light pick-up and light yard work, rode in a car and drove to the
hearing, read, watched television, used the computer, went to the movies and
restaurants, maintained social connections over the phone and on Facebook, and
helped to care for his father. (Tr. 47, 233-36, 436, 440). The Commissioner
points out that the Sixth Circuit has emphasized claimants’ abilities to perform
some of the same daily activities in a number of decisions denying benefits. And,
while some of these activities were limited as to plaintiff, the ALJ did not equate
these activities, in and of themselves, with the capability to do medium work.
Rather, the referenced activities were only one part of the ALJ’s overall
consideration of plaintiff’s allegations.
The Commissioner also points out that, despite plaintiff’s challenge to the
ALJ’s statement that he drove, plaintiff did in fact testify that he drove to the
hearing. (Tr. 19, 47). Additionally, though plaintiff took issue with the ALJ’s
finding that he helped to care for his father, the Commissioner points to records
reflecting that plaintiff reported to Dr. Richter in 2015 that he lived with his father
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who had dementia, had to be watched, and needed help because he was very weak.
(Tr. 436, 440). Thus, the Commissioner maintains that the ALJ properly
considered these activities as one factor in his overall assessment of plaintiff’s
RFC.
As the Commissioner acknowledges, plaintiff’s reported activities, standing
alone, are insufficient to support the ALJ’s credibility findings. However, it is
evident that the ALJ also relied on other medical evidence to support his RFC and
adverse credibility findings, as discussed in more detail below. Moreover, an ALJ
may reasonably view such daily activities as inconsistent with subjective
complaints of disabling limitations. 20 C.F.R. § 404.1529(c)(3)(I); see also
Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 392 (6th Cir. 2004) (recognizing
that in nearly all cases, an evaluation of a claimant’s daily activities is relevant to
the evaluation of subjective complaints and ultimately, to the determination of
disability); Heston, 245 F.3d at 536 (an ALJ may consider claimant’s testimony of
limitations in light of other evidence of claimant’s ability to perform tasks such as
walking, going to church, going on vacation, cooking, vacuuming and making
beds). Notably, the ALJ did not say that any of these activities, individually or in
combination, equated with an ability to sustain full-time work. Rather, the ALJ
found that they showed plaintiff was less limited in his functional abilities than he
alleged, which is a permissible credibility consideration. See Garcia v. Comm’r of
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Soc. Sec., 2018 WL 838371, at *15 (N.D. Ohio Feb. 12, 2018) (citing Walters, 127
F.3d at 532 (an ALJ may consider household activities in evaluating the credibility
of the claimant’s allegations of disabling symptoms); Temples v. Comm’r of Soc.
Sec., 515 Fed. Appx. 460, 462 (6th Cir. 2003) (“[T]he ALJ did not give undue
consideration to Temples’ ability to performing day-to-day activities. Rather, the
ALJ properly considered this ability as one factor in determining whether
Temples’ testimony was credible.”). Thus, it was entirely appropriate for the ALJ
to consider plaintiff’s activities of daily living as one factor in assessing his
credibility and those findings are supported by the record.
According to plaintiff, there are also several other errors in the ALJ’s
credibility analysis, most of which can be described as the ALJ mischaracterizing
the medical evidence in the record. Plaintiff first points to the ALJ’s reference to
the treatment regimen being limited to pain medication that was giving acceptable
relief. As to the “pain at an acceptable level” finding, the medical records from
each visit with plaintiff’s pain management physician, Dr. Richter, say:
Plan: Talked about the 4’s of Analgesia: getting the pain
at an acceptable level, Activity: Pain meds are helping
and doing more, Adverse effects: constipation, Aberrant
behavior: need to follow the pain agreement. Must keep
Active!
(Tr. 424, 425, 426, 427, 428, 430, 433, 437). Plaintiff contends that the doctor
was not saying that his pain was at an acceptable level, but rather that his “plan” –
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the four goals of pain management – was to try to get the person to an acceptable
level of pain. Thus, plaintiff insists that the ALJ misconstrued the level of pain
that was being reported. In response, the Commissioner posits that even if the
ALJ misread these treatment notes, Dr. Richter still said that the pain medication
was helping and plaintiff was able to do more. (Tr. 423-28, 430, 433, 437, 441).
Furthermore, Dr. Richter advised plaintiff to keep active, and did not recommend
any further intervention. Id. Additionally, since the ALJ also gave other valid
reasons for finding that the degree of limitation alleged by plaintiff was not
supported by the record, any error in this regard does not require remand. See
Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 714 (6th Cir. 2012) (“[s]o long as
there remains substantial evidence supporting the ALJ’s conclusions on credibility
and the error does not negate the validity of the ALJ’s ultimate credibility
conclusion, such is deemed harmless and does not warrant reversal”) (citation
omitted). As discussed in detail below, the Court agrees that the ALJ’s analysis,
though perhaps imperfect in some respects, remains supported by substantial
evidence.
While plaintiff contends that the ALJ selectively relied on or “cherrypicked” the medical evidence by pointing out less favorable and ignoring more
positive findings, the Court concludes that the ALJ’s approach is more accurately
characterized as a weighing of the evidence. According to plaintiff, Dr. Richter
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consistently documents chronic abdominal pain symptoms that worsen with
moving and improve with lying still, and which, over time, lead to plaintiff
switching from Norco to Tramadol, and later adding Gabapentin and Methadone
as part of the pain regimen. (Tr. 424-430, 432-433, 435-437, 439). Plaintiff
maintains that these records corroborate his testimony about his limited walking,
standing and need to lie down, as well as his testimony about the need to take
these medications for chronic abdominal pain. (Tr. 42, 47, 49). Plaintiff also
contends that the prescription of these medications for a diagnosis of chronic
abdominal pain corresponds with Dr. Richter’s examinations finding a distended
and scarred abdomen, and later adding tenderness to even light touch. Id.
Plaintiff says that the ALJ does not discuss these components anywhere in his
decision. Moreover, plaintiff points out that Dr. Rodriguez, who examined
plaintiff at the request of the State Agency, also found tenderness on palpation of
the abdomen and pain radiating to the abdomen while doing the left straight leg
test (Tr. 411); yet the ALJ said that the straight leg testing was normal. (Tr. 19).
Plaintiff argues the ALJ’s discounting the credibility of his testimony of chronic
pain based on the fact that plaintiff’s treatment only involves ongoing pain
management rather than more surgery also constitutes error. Plaintiff complains
that the ALJ neglects to mention that the medications regularly prescribed to him
by a pain specialist are narcotics directed at addressing severe chronic pain.
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Further, the ALJ did not address the fact that plaintiff’s surgeon did not direct that
further surgery was warranted. (Tr. 414-417).
Notwithstanding the record evidence plaintiff points to above, the
Commissioner points out that the records also reveal limited treatment and
improvement in plaintiff’s symptoms. As the Commissioner explains, prior to his
application for SSI, plaintiff had open sigmoid colon resection with anastomosis
(June 2012), CT guided drainage of LLQ abscess, and ventral hernia repair
(January 2013). (Tr. 382, 388-89, 414, 416). In February 2013, plaintiff was
admitted to the hospital for a short time after his hernia repair complaining of
abdominal pain, but he was improved on discharge. (Tr. 288). Next, in April
2013, plaintiff’s CT scan of the abdomen revealed an interval decrease in size of a
previously observed upper abdominal encapsulated seroma/hematoma, and
diverticulosis of the colon without evidence for diverticulitis. (Tr. 282-83). In
January 2014, plaintiff underwent a consultative examination with Michael
Rodriguez, D.O. (Tr. 407-411). On examination, there was tenderness to
palpation of the abdomen in the lower left quadrant (Tr. 411), but otherwise the
findings were normal: intact range of motion, intact grip strength, no tenderness,
erythema, or effusion of any joint, no muscle spasm, no edema, negative straight
leg raising (with some report of abdominal pain during the test), intact motor
strength, intact sensation, present and symmetrical reflexes, no difficulty getting
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on and off examination table, no difficulty heel and toes walking, no difficulty
squatting, and no difficulty hopping. (Tr. 408-11). In January and February 2014,
plaintiff’s surgeon, Bashar G. Yaldo, saw him for follow-up, with plaintiff
reporting abdominal pain. (Tr. 414-17). Dr. Yaldo’s examination of the
abdomen, revealed tenderness and an abdominal wall mass at the epigastric region,
but otherwise there were no apparent scars, no palpable hernias, no abdominal
distension, no other palpable abdominal masses, and normal bowel sounds. (Tr.
415, 417). Dr. Yaldo prescribed Norco, and advised that if plaintiff was still
having pain, he would schedule an IR for abdominal wall fluid aspiration in six
months. (Tr. 415). Plaintiff did not follow-up. Plaintiff also saw Ken Richter,
M.D., with complaints of abdominal pain in 2014 and 2015. (Tr. 423-30, 432-41).
Plaintiff did consistently report abdominal pain made worse with moving. Id.
However, physical examinations were generally normal with intact gait and
neurological findings. There was consistent mention of distended abdomen and
some reports of tenderness. (Tr. 424-27, 429, 432, 436, 440). Plaintiff was
primarily treated with tramadol, which he noted to be helpful. (Tr. 424-30,
432-33, 436-37, 440-41). Dr. Richter later also prescribed gabapentin and
methadone for pain. Id.
Based on the medical record and treatment notes, the Court agrees with the
Commissioner that the ALJ appropriately found that, while plaintiff did complain
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of pain and there were findings of abdominal tenderness, the record largely shows
that pain medication was helpful and effective. (Tr. 19-20). Notably, all other
physical and neurological findings were normal. Plaintiff did not return to Dr.
Yaldo for the abdominal wall fluid aspiration, which was recommended if the pain
continued (Tr. 19-20, 52, 415); and plaintiff stated that he had not sought any
emergency treatment recently. (Tr. 37). Dr. Richter himself noted that the
medication was helping and advised plaintiff to remain active. (Tr. 423-28, 430,
433, 437, 441).
Additionally, the ALJ appropriately relied on Dr. Choi’s conclusions that
plaintiff could perform medium work. (Tr. 64-72). It is well-established that,
under certain circumstances, opinions from reviewing State agency physicians
“may be entitled to greater weight than the opinions of treating or examining
sources.” SSR 96-6p; 1996 WL 374180, at *3; Brooks v. Comm’r of Soc. Sec.,
531 Fed. Appx. 636, 642 (6th Cir. 2013) (“[O]pinions from State agency medical
and psychological consultants ... may be entitled to greater weight than the
opinions of treating or examining sources.”) (quoting SSR 96-6p, 1996 WL
374180, at *3); Benson v. Colvin, 2014 WL 3919577, at *9 (E.D. Ky. Aug. 11,
2014) (“[I]t is not a per se error to give more weight to the opinion of a
non-examining physician than that given to an examining or treating physician’s
opinion.”). Indeed, the opinions of state agency medical and psychological
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consultants may be entitled to significant weight where they are supported by
record evidence. Lee v. Comm’r of Soc. Sec., 529 Fed. Appx. 706, 713 (6th Cir.
2013); 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i)). It is true that Dr. Choi’s
opinions were issued on January 24, 2014, and he did not have the benefit of Dr.
Richter’s records. However, the ALJ can reasonably credit the opinion of a
reviewing medical source, despite the fact that the source did not have access to
the entire record, where the conclusion that the claimant retained the capacity to
work was supported by the totality of the medical and vocational evidence in the
record. Glasgow v. Comm’r of Soc. Sec., 690 Fed. Appx. 385, 387 (6th Cir. 2017)
(citing McGrew v. Comm’r of Soc. Sec., 343 Fed. Appx. 26, 32 (6th Cir. 2009)
(concluding that an ALJ may rely on a state agency physician’s opinion that is not
based on all of the medical evidence in the record if the ALJ takes into account
any evidence that the physician did not consider)). Here, the ALJ expressly
considered Dr. Richter’s records and, as discussed below, those records suggests
that plaintiff is not as limited as he alleges.
Plaintiff began treating with Dr. Richter in June 2014 for abdominal pain
and received a prescription for Norco. (Tr. 424). In September 2014, plaintiff
reported that he could not tolerate the Norco and that the Tramadol was better for
his abdominal pain. (Tr. 425). As a result, he received an adjustment to his
Tramadol prescription at that time. Id. In December 2014, Dr. Richter continued
20

to prescribe Tramadol along with Gabapentin. (Tr. 426). In early April 2015, Dr.
Richter placed plaintiff on a trial dose of Fentynal, along with short-acting
Tramadol. (Tr. 428). Later in that same month, Dr. Richter prescribed
Methadone, and noted that the pain medications were helping and that plaintiff
was doing more. (Tr. 430). In July 2015, plaintiff’s pain complaints remained
consistent and his medications were continued. (Tr. 436-437). Plaintiff’s pain
score remained 6/10 throughout Dr. Richter’s treatment, even though his pain was
at time reported as “worse” or “better” and pain medications were noted as being
helpful. While Dr. Richter concluded that plaintiff could not perform “medium”
work, his opinion does not include any narrative or otherwise specify the basis for
this conclusion. In particular, Dr. Richter’s opinion does not address the
components of medium work, that is, whether plaintiff could not meet the lifting
or carrying requirements, the standing/walking requirements, or some other aspect
of medium work. Furthermore, Dr. Richter’s opinion that plaintiff could not
perform medium work on a full time basis is a “check the box” form, unsupported
by any reference to medical records. See e.g., Ashley v. Comm’r of Soc. Sec., 2014
WL 1052357, at *8 n.6 (W.D. Mich. Mar. 19, 2014) (“Courts have increasingly
questioned the evidentiary value of ‘multiple choice’ or ‘check-off’ opinion forms
complet[ed] by treating physicians which are not []supported by clinical
records[.]”). Beyond his unsupported opinion that plaintiff cannot perform
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medium work, Dr. Richter does not specify limitations beyond those captured in
the assessed RFC, and nothing in Dr. Richter’s treatment notes or other medical
evidence in the record compels a different result than that found by the ALJ.
The Court notes that a claimant’s assertion of “cherry picking” the record
“is seldom successful because crediting it would require a court to re-weigh
evidence.” DeLong v. Comm’r of Soc. Sec., 748 F.3d 723, 726 (6th Cir. 2014)
(citing White v. Comm’r of Soc. Sec., 572 F.3d 272, 284 (6th Cir. 2009) (“‘[W]e
see little indication that the ALJ improperly cherry picked evidence; the same
process can be described more neutrally as weighing the evidence.’”)). Here, the
Court concludes that the ALJ’s credibility analysis is supported by substantial
evidence. The ALJ reasonably concluded that the degree of limitation plaintiff
alleged was not supported by the record. (Tr. 18-20). Notably, were the Court to
remand this matter, there is nothing in the record that would compel a different
result. The objective medical evidence does show that plaintiff has scar tissue and
a seroma/hematoma that he has declined to have drained, but there is no evidence
of any new hernia; and plaintiff points to no credible medical opinion suggesting
that greater limitations apply. Thus, while observation of the former may evoke
suspicion of attendant limitations, the absence of evidence of any specific
limitations leaves at its core, an assessment of plaintiff’s subjective pain
complaints by the ALJ. And, as detailed above, the ALJ offered several well22

documented reasons for finding that the degree of limitation alleged by plaintiff
was not supported by the record. The ALJ’s conclusions that (1) plaintiff’s
complaints were not supported by the medical evidence; (2) plaintiff only required
conservative treatment for his pain, and such treatment helped relieve his pain; and
(3) plaintiff engaged in several identified daily activities, are all supported by
substantial evidence in the record. Further, the ALJ also noted that his RFC
finding was consistent with the medical opinion of Dr. Choi, M.D., the
nonexamining state agency physician who opined that plaintiff could perform
medium work after reviewing the record. (Tr. 20, 69-70). The credibility
determination of the ALJ, to which considerable deference is afforded, is
supported by substantial evidence and plaintiff’s invitation to re-weigh the
evidence is declined.
IV.

CONCLUSION
For the reasons set forth above, the undersigned DENIES plaintiff’s motion

for summary judgment, GRANTS defendant’s motion for summary judgment, and
AFFIRMS the findings of the Commissioner.
IT IS SO ORDERED.
Date: March 29, 2018

s/Stephanie Dawkins Davis
Stephanie Dawkins Davis
United States Magistrate Judge

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CERTIFICATE OF SERVICE
I certify that on March 29, 2018, I electronically filed the foregoing paper
with the Clerk of the Court using the ECF system, which will send electronic
notification to all counsel of record.
s/Tammy Hallwood
Case Manager
[phone]
[e-mail]

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