Oegema v. Commissioner of Social Security
Filing
25
OPINION ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Cynthia Oegema,
Plaintiff,
Case No. 1:15-CV-00349
Hon. R. Allan Edgar
v.
Carolyn W. Colvin,
Acting Commissioner of Social Security,
Defendant.
___________________________________/
OPINION
Plaintiff filed an application for disability insurance benefits under Title II of the
Social Security Act on December 10, 2011. See Transcript of Administrative Hearing at page 32
(hereinafter Tr. at ___). Plaintiff alleges that she became disabled on November 24, 2010, due to
impairments of her feet, hands, and shoulders. Tr. at 52. On March 30, 2012, Plaintiff’s
application was denied, and on April 28, 2012, Plaintiff filed a request for an administrative
hearing before an Administrative Law Judge (ALJ). Tr. at 32. The ALJ held a hearing on April
24, 2013. Id. At the hearing, Plaintiff was represented by counsel. Tr. at 46. Testifying at the
hearing were Plaintiff and vocational expert James Lozer. Tr. at 46-48. In a decision issued July
12, 2013, the ALJ denied Plaintiff’s claim for benefits. Tr. at 29-40. Plaintiff appealed the
decision to the Appeals Council, which denied her request for review on June 25, 2014. Tr. at 15. Plaintiff then filed this action on August 20, 2014. Docket # 1.
Plaintiff suffers from impairments of her neck, shoulders, hands, back, and feet.
At her hearing, Plaintiff testified that she has prior work experience as a general assistant and a
receptionist. Tr. at 82-85. Plaintiff testified that she could walk a couple of blocks when
wearing orthotic shoes, and that she often tried to elevate her feet to at least sitting level
throughout the day. Tr. at 62, 66, 87-88. She stated that she can drive any distance as long as
she gets out and walks for a few minutes after every hour of driving. Tr. at 50, 79. Plaintiff
testified that she can do some housework, including dishes, dusting, and sweeping, but she
indicated that she can only stand for fifteen minutes at a time before needing to sit. Similarly,
she can only sit for a half hour before needing to readjust her position. Tr. at 78-79. Plaintiff
retired on November 24, 2010, and has not worked since that time. Tr. at 52, 59.
Vocational expert James Lozer testified at the hearing and was asked to evaluate
Plaintiff’s ability to perform her past relevant work based on four different hypotheticals. Tr. at
85-88. The first hypothetical scenario asked if a person of Plaintiff’s age, education, and past
relevant work experience that had the following limitations would be able to perform Plaintiff’s
past job as a receptionist: lifting or carrying up to twenty pounds occasionally, ten pounds
frequently; sitting for a total of six hours and standing or walking (or a combination of both) for a
total of four hours of an eight hour day; climbing, kneeling, and balancing occasionally; stooping,
crouching, and crawling frequently; reaching overhead bilaterally occasionally; handling and
fingering frequently; and avoiding exposure to extreme cold or wetness. Tr. at 85-86. Mr. Lozer
noted that this person could perform work as a receptionist. In hypothetical two, the same
question was asked with the additional limitations of: occasional climbing of ramps and stairs,
balancing, stooping and crouching; never climbing ladders, ropes, or scaffolds; never kneeling or
crawling; and not operating leg or foot controls in either lower extremity. Tr. at 86-87. Mr.
Lozer stated that this hypothetical person could perform Plaintiff’s past work as a receptionist.
Tr. at 87. The third hypothetical added the limitation of carrying and/or lifting up to ten pounds,
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sitting for about six hours, and standing or walking for a total of two hours in an eight hour work
day. Id. Mr. Lozer said this person could perform the Dictionary of Occupational Title’s (DOT)
description of a receptionist, but not Plaintiff’s past work as a receptionist due to her having to
lift fifteen pounds at her past job. Tr. at 84, 87. Finally, in the fourth hypothetical, the only
additional limitation added was the need to elevate both legs at seat level throughout the day. Tr.
at 87-88. Mr. Lozer indicated a person with this added condition could not perform work as a
receptionist. Tr. at 88.
The ALJ determined that Plaintiff suffers from bilateral carpal tunnel syndrome,
degenerative joint disease and impairment of the right shoulder with tendinitis status-post right
arthroscopic acromioplasty and distal calviculectomy, left foot bunions status-post bilateral
bunionectomies, left foot osteoarthritis with multiple left foot surgeries including reconstruction,
and mild osteoarthritis of the hands. Tr. at 34. Based on these conditions and the ALJ’s
determination of Plaintiff’s physical capabilities, the ALJ concluded that Plaintiff could perform
her past work as a receptionist. Tr. at 39.
Plaintiff filed an appeal on August 20, 2014 (Docket # 1), alleging that the ALJ’s
decision to deny social security benefits to Plaintiff was not supported by substantial evidence.1
Plaintiff maintains that the ALJ erred in finding Plaintiff less than credible, which led to an
improper RFC finding and determination that Plaintiff could perform her past work as a
receptionist. Docket # 9. Defendant Commissioner of Social Security filed a response on
1
After this case was transferred from the Eastern District to the W estern District of Michigan, Magistrate
Judge Green ordered that the parties’ pending motions for summary judgment be stricken, but that their briefs would
be used for purposes of this Court’s review. Docket # 23. As such, this Court references the briefs for support in
rendering its decision.
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January 5, 2015. Docket # 10. Plaintiff has not filed a reply. The matter is now ready for a
decision.
I.
“Our review of the ALJ’s decision is limited to whether the ALJ applied the
correct legal standards and whether the findings of the ALJ are supported by substantial
evidence.” Winslow v. Comm’r of Soc. Sec., 566 Fed. App’x 418, 420 (6th Cir. 2014) (quoting
Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009)); see also 42 U.S.C. § 405(g).
The findings of the ALJ are conclusive if they are supported by substantial evidence. 42 U.S.C. §
405(g). Substantial evidence is defined as more than a mere scintilla of evidence but “such
relevant evidence that a reasonable mind might accept as adequate to support a conclusion.”
Jones v. Sec’y, Health & Human Servs., 945 F.2d 1365, 1369 (6th Cir. 1991). This Court is not
permitted to try the case de novo, nor resolve conflicts in the evidence and cannot decide
questions of credibility. Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th
Cir. 1989); see Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003) (noting the
ALJ’s decision cannot be overturned if sufficient evidence supports the decision regardless of
whether evidence also supports a contradictory conclusion). This Court is required to examine
the administrative record as a whole and affirm the Commissioner’s decision if it is supported by
substantial evidence, even if this Court would have decided the matter differently. See Kinsella
v. Schwikers, 708 F.2d 1058, 1059 (6th Cir. 1983); see also Mullen v. Bowen, 800 F.2d 535, 545
(6th Cir. 1986) (holding that the court must affirm a Commissioner even if substantial evidence
would support the opposite conclusion).
The ALJ must employ a five-step sequential analysis to determine if Plaintiff is
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under a disability as defined by the Social Security Act. Warner v. Comm’r of Soc. Sec., 375
F.3d 387, 390 (6th Cir. 2004). If the ALJ determines Plaintiff is or is not disabled under a step,
the analysis ceases and Plaintiff is declared as such. 20 C.F.R. § 404.1520(a). Steps four and
five use the residual functional capacity assessment in evaluating the claim. Id.
At step one, the ALJ determined that Plaintiff had not engaged in substantial
gainful activity since November 24, 2010, the alleged onset date. Tr. at 34; see 20 C.F.R. §
404.1520(b). At step two, the ALJ determined Plaintiff has the following severe impairments:
bilateral carpal tunnel syndrome, degenerative joint disease and impairment of the right shoulder
with tendinitis status-post right arthrosporic acromioplasty and distal calviculectomy, left foot
bunions status-post bilateral bunionectomies, left foot osteoarthritis with multiple left foot
surgeries including reconstruction, and mild osteoarthritis of the hands. Tr. at 34. At step three,
the ALJ determined Plaintiff’s impairments or a combination of impairments did not meet or
medically equal the severity of one of the listed impairments in 20 C.F.R. part 404, Subpart P,
Appendix 1. Tr. at 35. At step four, the ALJ determined Plaintiff has the residual functional
capacity (RFC) to perform sedentary work, as defined in 20 C.F.R.§ 404.1567(a), with the
additional limitations of: occasionally climb ramps or stairs, balance stoop, and crouch; no
kneeling, crawling, or climbing ladders, ropes, or scaffolds; no operation of leg or foot controls
with either lower extremity; no ambulation over uneven terrain; no overhead reaching bilaterally;
no forceful gripping or grasping bilaterally; no concentrated exposure to extreme cold or
wetness; and, frequent handling and fingering bilaterally. Id. At step five, the ALJ concluded
that Plaintiff is capable of performing past relevant work as a receptionist. Tr. at 39. Therefore,
the ALJ held that Plaintiff was not disabled during the time period from her alleged onset date
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through her date last insured. Id.
II.
Plaintiff contends that “the Commissioner erred as a matter of law in assessing
Cynthia Oemega’s credibility and by failing to properly evaluate the medical records of evidence
and, thereby, forming an inaccurate hypothetical that did not accurately portray Cynthia
Oegema’s impairments.” Docket # 9 at 6. Upon review of the evidence on record, this Court
affirms the ALJ’s conclusions.
A. Credibility
Plaintiff claims that the ALJ erred in finding her testimony to be less than credible
because there is objective medical evidence on record that supports her allegations of pain and
disabling symptoms. Docket # 9 at 10-11. When an ALJ evaluates an individual’s complaints of
pain and disabling symptoms, the ALJ may consider the credibility of the person. Walters v.
Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997). “[A]n ALJ’s findings based on the
credibility of the applicant are to be accorded great weight and deference, particularly since an
ALJ is charged with the duty of observing a witness’s demeanor and credibility.” Id. (citing
Villarreal v. Sec’y of Health & Human Servs., 818 F.2d 461, 463 (6th Cir. 1987). An ALJ’s
determination of a Plaintiff’s credibility must be supported by substantial evidence. Id.;
Winslow, 566 Fed. App’x at 422. Simply stating that Plaintiff has pain or other symptoms is not
sufficient to establish that the individual is disabled. Walters, 127 F.3d at 531 (citing 20 C.F.R. §
404.1529(a)). The ALJ must assess an individual’s pain by using a two prong test:
First, we examine whether there is objective medical evidence of an
underlying medical condition. If there is, we then examine: (1)
whether objective medical evidence confirms the severity of the
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alleged pain arising from the condition; or (2) whether the objectively
established medical condition is of such a severity that it can
reasonably be expected to produce the alleged disabling pain.
Id. (referencing Felisky v. Bowen, 35 F.3d 1027, 1038-39 (6th Cir. 1994) (quoting Duncan v.
Sec’y of Health & Human Servs., 801 F.2d 847, 853 (6th Cir. 1986)); see also 20 C.F.R. §
404.1529(a). “Discounting credibility to a certain degree is appropriate where an ALJ finds
contradictions among the medical reports, claimant’s testimony, and other evidence.” Walters,
127 F.3d at 531 (citing Bradley v. Sec’y of Health & Human Servs., 862 F.2d 1224, 1227 (6th
Cir. 1988)). An ALJ can also consider an individual’s ability to do household and social
activities when assessing the credibility of a person’s alleged pain and disabling symptoms. Id.
at 532.
In determining that Plaintiff’s allegations of pain and disabling symptoms were
less than credible, the ALJ identified several inconsistencies between Plaintiff’s testimony and
the evidence provided. In so doing, the ALJ first evaluated and considered Plaintiff’s testimony
in his decision:
The claimant alleged that she suffers from feet, shoulders, hands,
back and neck problems (Ex. 2E/2). She claimed that she has
difficulty lifting, squatting, bending, standing, reaching, walking,
sitting, kneeling, stair climbing, completing tasks, and using her
hands. Additionally, she testified that she could walk one block, sit
for 30 minutes, and stand for 15 minutes. Despite these allegations,
the claimant stated in her Function Report that she attends to her
personal care needs with some alleged difficulty, prepares meals,
performs light household chores, washes dishes, does laundry, drives,
shops, pays bills, counts change, handles a savings account, uses a
checkbook, watches television, reads, completes crossword puzzles,
uses a computer, goes out, talks on the phone, and spends time with
others (Ex. 5E/2-6).
Tr. at 36. Despite Plaintiff’s above-mentioned allegations, the ALJ determined that Plaintiff’s
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testimony regarding her pain and disabling symptoms was not credible:
The claimant has described daily activities that are not limited to the
extent one would expect, given the complaints of disabling symptoms
and limitations, which weakens the credibility of her allegations.
The undersigned notes that the claimant was able to sit comfortably
through the hearing. She maintained eye contact and responded
appropriately. Other that [sic] some crying at the end of the hearing,
there were no facial contortions, vocalizations, or any other evidence
of pain appreciated during the hearing. The undersigned recognizes
observations alone by an Administrative Law Judge at a hearing do
not constitute substantial evidence. However, said observations,
when combined with other inconsistencies present in the record as to
the degree of pain and functional limitation allegedly experienced by
the claimant, are worthy of consideration in reaching a credibility
determination.
After careful consideration of the evidence, the undersigned finds that
the claimant’s medically determinable impairments could reasonably
be expected to cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and limiting effects
of these symptoms are not entirely credible for the reasons explained
in this decision.
Turning to the medical evidence, the objective findings in this case
fail to provide strong support for the claimant’s allegations of
disabling symptoms and limitations. The undersigned notes that it is
the claimant’s responsibility to put forth evidence showing she had an
impairment and how severe it is during the period she alleges
disability (20 CFR 404.1512(c) and 416.912(c)). The Administrative
Law Judge has the authority to make a determination that the
claimant’s impairments are not incapacitating to the extent alleged.
Although the subjective element of incapacity is an important
consideration in determining disability, the Administrative Law Judge
has discretion to evaluate credibility and to arrive at an independent
judgment, in light of medical findings and evidence regarding the true
extent of the incapacity alleged by the claimant. The issue of
credibility in this case cannot be discussed analytically in absolute
terms, but must be measured by degree. The claimant testified, and
understandably may honestly believe that her impairments are
disabling. However, it is the duty of the undersigned to accurately
determine the degree of his impairments based upon the totality of all
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of the other evidence of record. The undersigned has evaluated the
claimant’s subjective complaints and other allegations in accordance
with 20 CFR 404.1529 and 416.929; SSR 96-4p; and 96-7p. The
claimant’s allegations are found to be not fully credible.
Additionally, the medical findings do not support the existence of
limitations greater than the above listed residual functional capacity.
The claimant suffers from several physical impairments, which limits
her to the above-described residual functional capacity. Prior to the
alleged onset date, physical therapy notes in 2008 show that the
claimant experience[d] 85 to 90% progress, and it was noted that she
could do most activities without difficulty (Ex. 23F/2). In November
2009, the claimant underwent a left foot reconstruction (Ex. 2F/7).
An x-ray of the right shoulder demonstrated only mild degenerative
changes. An MRI of the right shoulder at that time showed mild
arthritic change in the acromioclavicular joint and mild thinning of
the supraspinatus tendon without tear (Ex. 6F/13-15). In March 2010,
the claimant underwent a right arthrosporic acromioplasty and distal
calviculectomy after being diagnosed with right shoulder
impingement syndrome and acromiovascular degenerative arthritis
(Ex. 1F/1). Later that month, the claimant had normal range of
motion, and she exhibited no edema or tenderness. Further, she
displayed normal reflexes and muscle tone, and her coordination was
normal (Ex. 5F/7). In April 2010, it was noted that she was doing
very well following surgery. A few months later, she was doing quite
well and had returned to work (Ex. 5F/18). An examination
performed in September 2010 showed no cyanosis, clubbing, or
edema in the extremities. Evaluation of the right leg revealed no
Homan’s sign. There was no warmth in the lower extremity, and only
mild swelling near the right ankle was appreciated. Further, she had
full range of motion (Ex. 2F/3-4). One month later, she had full range
of motion in the neck, shoulders, and hips without pain. While
tenderness was noted in the right third PIP, second and fourth MCP,
and third and fifth DIPs, there was no swelling erythema, or warmth
except for some swelling in the third PIP. She had full range of
motion of the knees and ankles. She was diagnosed with
undifferentiated inflammatory arthritis, tendinitis, and low back pain
(Ex. 3F/16-17).
After the alleged onset date, in November 2010, the claimant was
able to perform a single limb heel rise on the left side and was
otherwise neurovascularly intact. While there was some tightness
over the lateral gastroc, but it was noted that it was very
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inconsequential (Ex. 7F/31). Later that month, the claimant had good
range of motion without pain in the neck and shoulders. There was
no swelling of any joints, nor was there any erythema or joint warmth.
The claimant was able to make a fist to 100% in both hands, and no
tender points were noted. It was noted that her tendinitis was
improving and that her arthritis had improved (Ex. 3F/12-13).
Similar findings were noted in January 2011, though the claimant had
two swollen joints and could only make a fist to 50% bilaterally (Ex.
3F/9). A bone density study was completed in April 2011, which was
normal (Ex. 4F/1). Later that month, the claimant had normal range
of motion throughout without tenderness or edema. Additionally, she
displayed normal reflexes and muscle tone, and her coordination was
normal. Similar findings were noted one month later (Ex. 5F/70, 80).
In January 2011, the claimant had good range of motion without pain
in the neck and shoulders. While two joints were swollen, there was
no erythema or warmth. Additionally, she could make a fist to 100%
bilaterally (Ex. 17F/31-32). An examination in February 2011
revealed zero swollen joints on a 30 joint count. She had normal
range of motion of the neck, shoulders, elbows, wrists, hands, knees,
ankles, and feet. Degenerative changes were noted in the right hand,
and some mild crepitus was appreciated in both shoulders. However,
there was no laxity in the valgus and varus stress tests of the knees.
Posterior and anterior drawer tests were negative. McMurray’s was
also negative (Ex. 8F/0). A review of systems in June 2011 was
negative for myalgias (Ex. 5F/90-91). One month later, she had no
swelling in any joints, and only minor irritability on rotational
motions of the neck. Her physician noted that it was clearly a
remission in the inflammatory arthritis (Ex. 8F/5). While a review of
systems was positive for back pain in November 2011, it was
negative for myalgias. Upon examination, she had normal range of
motion without tenderness or edema. Moreover, she displays normal
reflexes and muscle tone. Additionally, coordination was normal
(Ex. 5F/118). Although it was noted in December 2011 that she was
experiencing pain in her shoulder, foot, neck, and back, it was
determined that nothing should be done other than continuation of
conservative measures (Ex. 6F/3). Later that month, while antalgic,
the claimant was ambulatory. She had good overall alignment of the
ankle and hindfoot. A neurological examination was normal. An xray of the left foot showed a mild hallux valgus interphalangeus. An
x-ray of the right foot showed an increased IM angle and a slightly
long second metatarsal (Ex. 7F/32).
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In January 2012, it was noted that the claimant was doing well. She
had no swelling in any joints. She requested a corticosteroid injection
in the CMC in her left thumb because her last one gave her five
months of relief (Ex. 8F/3). Near that time, an examination showed
only mild impingement in the right shoulder. However, she had
excellent rotator cuff strength without pain (Ex. 11F/3). Later that
month, Babinksi was negative and coordination was intact. Her gait
was normal and strength was intact. There was no atrophy or
fasciculation seen, and pronator drift was not present. Further range
of motion was full and reflexes were intact. Moreover, sensory was
intact. An EMG at that time showed evidence of mild to moderate
bilateral carpal tunnel syndrome (Ex. 9F/4). Donald Sheill, M.D.,
conducted a consultative examination later that month. Inspection of
the hands revealed no atrophy, swelling, or deformity. Fine and gross
dexterity was intact, and sensory was full. Grip strength was lower
than expected, but there were signs of lack of full effort. Tinel’s was
negative bilaterally, and the ulnar nerves were not irritable at the
elbows. While the left forefoot was tender, there was no swelling.
She had a mild bunion deformity on the right, but her feet otherwise
appeared normal. Color, temperature, and moisture were normal, and
sensory was intact (Ex. 10F/2).
A few months later, a review of systems was negative for joint pain
and muscle pain. It was also negative for numbness, tingling, and
weakness. Upon examination, she had normal range of motion and
exhibited no edema or tenderness. Additionally, she exhibited normal
reflexes and muscle tone, and coordination was normal (Ex. 16F/22).
It was noted in April 2012 that the claimant was doing well and had
very little discomfort. There were no impingement signs on the right,
and she had excellent rotator cuff strength. Mild impingement was
noted in the left shoulder, but there was no weakness of the rotator
cuff or limited range of motion (Ex. 24F/2). In September 2012, she
had normal range of motion and exhibited no edema or tenderness.
Additionally, she exhibited normal reflexes and muscle tone, and
coordination was normal (Ex. 16F/25). A few months later, a review
of systems was negative for joint pain, muscle pain, and weakness.
Upon examination, she had normal range of motion. She displayed
normal reflexes, exhibited normal muscle tone, and coordination was
normal (Ex. 19F/41) . . . .
The credibility of the claimant’s allegations is weakened by
inconsistencies between her allegations and the medical evidence.
Although the inconsistent information provided by the claimant may
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not be the result of a conscious intention to mislead, nevertheless the
inconsistencies suggest that the information provided by the claimant
generally may not be entirely reliable. The claimant does experience
some levels of pain and limitations but only to the extent described
in the residual functional capacity above.
Tr. at 36-39. The ALJ’s assessment of Plaintiff’s pain and disabling symptoms is thorough and
complete, and there is substantial evidence to support the ALJ’s conclusion that Plaintiff’s
allegations were inconsistent with the medical evidence on record.
Nonetheless, Plaintiff points to several reports that she believes substantiate her
testimony regarding her pain and disabling symptoms. However, the medical evidence Plaintiff
cites to merely indicates that she had impairments or pain in her shoulders, hands, feet, and back
at various times since her alleged onset date. See Tr. at 569 (noting Plaintiff had shoulder pain
and overhead reaching problems, and that she had shoulder surgery on March 22, 2010); Tr. at
587 (stating Plaintiff had swelling and pain in right hand, and edema, tenderness, and swelling in
wrist). This type of medical evidence does not demonstrate or indicate Plaintiff’s ability to
function given the pain or medical impairments described within the reports. Similarly, it does
not touch on the intensity or severity of Plaintiff’s pain. To the extent that it does, the ALJ
properly accounted for those limitations within his RFC finding. See Tr. at 35 (noting, for
example, that Plaintiff could not overhead reach bilaterally).
Moreover, the conclusion that Plaintiff’s allegations of pain and disabling
symptoms were less than credible is supported by the inconsistencies between the evidence on
record and Plaintiff’s testimony. For example, in her Function Report from January 6, 2012,
Plaintiff indicated that she can go grocery and clothes shopping for about an hour, and do simple
chores around the house (such as cooking and doing laundry). Tr. at 212, 214. In addition,
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Plaintiff’s medical reports show that she told her physicians on two separate occasions that she
was traveling out of the country and was doing outdoor activities. Tr. at 420, 616. Despite this
evidence, Plaintiff testified that she can only sit for a half hour at a time, and that she can only
walk one to two blocks (or fifteen minutes). Tr. at 66, 78. Clearly, the medical reports
exemplifying Plaintiff’s functional abilities, coupled with her function report pertaining to her
daily activities, show that Plaintiff’s testimony was inconsistent with the evidence on record.
Overall, there is substantial evidence on the record to support the ALJ’s
determination that Plaintiff’s testimony was less than credible. Therefore, this Court defers to
the ALJ’s credibility determination. See Jones, 336 F.3d at 475 (noting when there is sufficient
medical evidence to support the ALJ’s finding, this Court does not overturn the ALJ’s decision,
even if evidence supports a different conclusion).
B. Treating Physician
Plaintiff suggests that the ALJ should have relied on the treating sources’ opinions
in determining Plaintiff’s RFC and credibility. In making this argument, Plaintiff states that the
ALJ should have considered and explicitly analyzed various factors under 20 C.F.R. §
404.1527(c) in determining how much weight to afford the opinions of the treating physicians.
Docket # 9 at 12-14. Plaintiff has not stated which treating physician she believes the ALJ
should have more deeply analyzed in his decision.
An ALJ affords a treating physician’s opinion controlling weight when the
evidence and findings are consistent with the other substantial evidence on record. 20 C.F.R. §
1527(c)(2). Only when the ALJ does not afford great weight to a treating source’s opinion is the
ALJ required to apply and conduct an analysis of the factors under (c)(2)(i) and (c)(2)(ii), and
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(c)(3) through (c)(6). Id. Moreover, an ALJ is not required to rely on medical opinions
concluding that a person is, or is not, disabled since that is an issue reserved to the
Commissioner. 20 C.F.R. § 1527(d).
Here, the ALJ did not state that he discredited the opinions of Plaintiff’s treating
physicians, which means that the ALJ relied on Plaintiff’s treating sources’ opinions (indicating
he did not have to apply the factors of 1527(c) in his decision). Instead, the only medical
opinions that the ALJ afforded little weight to were the opinions of two state agency medical
consultants, Dr. Larry Jackson and Dr. Mary Rees. Tr. at 39. A state agency physician is not a
treating physician, and is instead a non-examining source under 20 C.F.R. § 1527(e)(2). This
means that an ALJ is not bound by a state agency physician’s opinion.
Plaintiff repeatedly stated in her brief that the ALJ should have explained why
certain medical opinions were not adopted—presumably the opinions of the state agency
physicians since they were the only opinions given little weight. Docket # 12-14. However, the
ALJ did explain why he did not adopt the opinions of the state agency physicians: “While these
opinions are consistent with the finding of not disabled, they did not adequately consider the
claimant’s subjective allegations.” Tr. at 39. Even if the ALJ adopted the opinions of the state
agency physicians, it would have actually hurt Plaintiff since they concluded that Plaintiff could
perform light work (an RFC higher than sedentary work, which is what the ALJ determined
Plaintiff could do). Therefore, based on the ALJ’s reasoned decision and upon review of the
medical opinions and evidence on record, it is clear that there is substantial evidence to support
the ALJ’s determination of Plaintiff’s credibility and overall RFC.
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C. RFC Determination
Plaintiff claims that since the ALJ improperly disregarded her pain and disabling
symptoms, that the RFC finding is inaccurate. Docket # 9 at 11-12. The ALJ’s RFC finding
indicated that Plaintiff could perform sedentary work. Tr. at 35; see 20 C.F.R. § 404.1567(a).
Based on this RFC, the ALJ concluded that Plaintiff could perform her past relevant work as a
receptionist. Tr. at 39.
Plaintiff spent much of her brief discussing the law regarding treating physician’s
weight in an RFC determination, which seems to indicate that Plaintiff believes that her RFC
“assessment is the duty of her physicians.” Edwards v. Comm’r of Soc. Sec., 97 Fed. App’x 567,
569 (6th Cir. 2004). However, an RFC determination is exclusively within the purview of the
Commissioner. Id. (citing 20 C.F.R. §§ 404.1527(e)(2), 404.1546). The ALJ is not required to
base his RFC finding entirely on a physician’s opinion because that “would, in effect, confer
upon the treating source the authority to make the determination or decision about whether an
individual is under a disability, and thus would be an abdication of the Commissioner’s statutory
responsibility to determine whether an individual is disabled.” Rudd v. Comm’r of Soc. Sec., 531
Fed. App’x 719, 728 (6th Cir. 2013) (quoting SSR-96-5p). Rather, the ALJ may assess both
medical and non-medical evidence before making an RFC determination. Poe v. Comm’r of Soc.
Sec., 342 Fed. App’x 149, 157 (6th Cir. 2009). Upon review of the medical and non-medical
evidence on record, it is clear that there is substantial evidence to support the ALJ’s RFC
determination limiting Plaintiff to sedentary work.
Nevertheless, Plaintiff contends that the ALJ’s RFC finding is improper since it
does not take into consideration two factors that the vocational expert said would prevent a
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person like Plaintiff from being able to work as a receptionist: elevating her feet throughout the
day, and missing two days of work per month. Docket # 9 at 11-12. However, upon review of
the evidence, it is clear that there is no medical report that required Plaintiff to miss two days of
work per month or elevate her feet throughout the day. While Plaintiff testified at her hearing
that she elevates her feet regularly, the ALJ found her testimony less than credible, meaning that
he did not have to consider this information in making his RFC determination. See Powers v.
Comm’r of Soc. Sec., No. 13-10575, 2014 WL 861541, at *5 (E.D. Mich. March 5, 2014) (citing
Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993) (“[T]he ALJ is
only required to incorporate in his hypotheticals those limitations that he finds credible and
supported by the record.”)). Thus, there is no evidence on record to refute the ALJ’s finding that
Plaintiff can perform sedentary work with the limitations outlined above.
Overall, there is substantial evidence to support the ALJ’s determination of
Plaintiff’s RFC. As such, this Court affirms the decision of the ALJ. See Jones, 336 F.3d at 475
(noting that this Court affirms the ALJ’s decision when there is sufficient medical evidence to
support the ALJ’s conclusions).
III.
Plaintiff’s request to remand this case to the Social Security Administration
pursuant to Sentence Four or Six of 42 U.S.C. § 405(g) is denied. There is substantial evidence
in the record that supports the Commissioner’s decision that Plaintiff was not disabled as defined
by the Social Security Administration. In addition, Plaintiff has not provided new or previously
unavailable evidence to support her claim. Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990)
(noting that new evidence is that which did not exist or was unavailable at the time of the
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hearing). In fact, Plaintiff makes no argument that she has new and material evidence for the
courts to consider on remand. Instead, Plaintiff argues that her previously admitted evidence was
improperly considered by the ALJ. Consequently, this Court concludes the Plaintiff has not met
her burden to grant a reversal or remand in his case pursuant to Sentence Four or Six of 42
U.S.C. § 405(g).
Accordingly, the decision of the Commissioner is AFFIRMED and Plaintiff’s
request for relief is DENIED.
Dated: 8/17/2015
/s/ R. Allan Edgar
R. ALLAN EDGAR
UNITED STATES DISTRICT JUDGE
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