Meyers v. Commissioner of Social Security

Filing 19

OPINION ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CYNTHIA L. MEYERS,
Plaintiff,
Case No. 1:15-CV-0984
v.
HON. ROBERT J. JONKER
COMMISSIONER OF SOCIAL
SECURITY,
Defendant,
/
OPINION
This is a social security action brought under 42 U.S.C. § 405(g) seeking judicial
review of a final decision of the Commissioner of the Social Security Administration
(Commissioner). Plaintiff Cynthia Meyers seeks review of the Commissioner’s decision denying
her claim for disability insurance benefits (DIB) under Title II of the Social Security Act.
STANDARD OF REVIEW
The scope of judicial review in a social security case is limited to determining
whether the Commissioner applied the proper legal standards in making her decision and whether
there exists in the record substantial evidence supporting that decision. See Brainard v. Sec’y of
Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). The Court may not conduct a de novo
review of the case, resolve evidentiary conflicts, or decide questions of credibility. See Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984). It is the Commissioner who is charged with finding the
facts relevant to an application for disability benefits, and her findings are conclusive provided they
are supported by substantial evidence. See 42 U.S.C. § 405(g).

Substantial evidence is more than a scintilla, but less than a preponderance. See
Cohen v. Sec’y of Health & Human Servs., 964 F.2d 524, 528 (6th Cir. 1992) (citations omitted).
It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
See Richardson v. Perales, 402 U.S. 389, 401 (1971); Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir.
1993). In determining the substantiality of the evidence, the Court must consider the evidence on
the record as a whole and take into account whatever in the record fairly detracts from its weight.
See Richardson v. Sec’y of Health & Human Servs., 735 F.2d 962, 963 (6th Cir. 1984). The
substantial evidence standard presupposes the existence of a zone within which the decision maker
can properly rule either way, without judicial interference. See Mullen v. Bowen, 800 F.2d 535, 545
(6th Cir. 1986) (citation omitted). This standard affords to the administrative decision maker
considerable latitude, and indicates that a decision supported by substantial evidence will not be
reversed simply because the evidence would have supported a contrary decision. See Bogle, 998
F.2d at 347; Mullen, 800 F.2d at 545.
PROCEDURAL POSTURE
Plaintiff was forty-three years of age on the date of the Administrative Law Judge’s
(ALJ) decision. (PageID.48, 75.) She completed high school, and was previously employed as a
switchboard operator, resident supervisor, and reception clerk. (PageID.77, 100–101.) Plaintiff
applied for benefits on July 12, 2012, alleging that she had been disabled since May 31, 2012, due
to thrombotic thrombocytopenic purpura, depression, headaches, migraines, and cholecystitis.
(PageID.106, 186–187.) Plaintiff’s application was denied on August 30, 2012, after which time she
requested a hearing before an ALJ. (PageID.116–121.) On October 15, 2013, Plaintiff appeared with
her representative before ALJ Carol Guyton for an administrative hearing with testimony being
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offered by Plaintiff and a vocational expert (VE). (PageID.68–104.) In a written decision dated
January 10, 2014, the ALJ determined that Plaintiff was not disabled. (PageID.48–67.) On
March 30, 2015, the Appeals Council declined to review the ALJ’s decision, making it the
Commissioner’s final decision in the matter. (PageID.39–44.) Plaintiff subsequently initiated this
action under 42 U.S.C. § 405(g).
ALJ’S DECISION
The social security regulations articulate a five-step sequential process for evaluating
disability. See 20 C.F.R. § 404.1520(a-f).1 If the Commissioner can make a dispositive finding at
any point in the review, no further finding is required. See 20 C.F.R. § 404.1520(a). The regulations
also provide that if a claimant suffers from a nonexertional impairment as well as an exertional
impairment, both are considered in determining the claimant’s residual functional capacity (RFC).
See 20 C.F.R. § 404.1545.
Plaintiff has the burden of proving the existence and severity of limitations caused
by her impairments and that she is precluded from performing past relevant work through step four.

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1.

An individual who is working and engaging in substantial gainful activity will not be found to be
“disabled” regardless of medical findings (20 C.F.R. § 404.1520(b));

2.

An individual who does not have a “severe impairment” will not be found “disabled” (20 C.F.R.
§ 404.1520(c));

3.

If an individual is not working and is suffering from a severe impairment which meets the duration
requirement and which “meets or equals” a listed impairment in Appendix 1 of Subpart P of
Regulations No. 4, a finding of “disabled” will be made without consideration of vocational factors
(20 C.F.R. § 404.1520(d));

4.

If an individual is capable of performing work he or she has done in the past, a finding of “not
disabled” must be made (20 C.F.R. § 404.1520(e));

5.

If an individual’s impairment is so severe as to preclude the performance of past work, other factors
including age, education, past work experience, and residual functional capacity must be considered
to determine if other work can be performed. (20 C.F.R. § 404.1520(f)).

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Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). At step five, it is the
Commissioner’s burden “to identify a significant number of jobs in the economy that accommodate
the claimant’s residual functional capacity (determined at step four) and vocational profile.” Id.
ALJ Guyton determined Plaintiff’s claim failed at the fifth step of the evaluation. At
step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her alleged
disability onset date. (PageID.53.) At step two, the ALJ determined Plaintiff had the following
severe impairments: (1) depression; (2) anxiety; and (3) undiagnosed myalgias. (PageID.53.) At the
third step, the ALJ found that Plaintiff did not have an impairment or combination of impairments
that met or equaled the requirements of the Listing of Impairments. (PageID.54–55.) At the fourth
step, the ALJ found that Plaintiff retained the RFC based on all the impairments:
to perform light work as defined in 20 CFR 404.1567(b), except she
cannot climb ladders, ropes, or scaffolds; she cannot balance, stoop,
kneel, crouch, crawl, or climb stairs/ramps more than occasionally;
she cannot work at unprotected heights or around dangerous
machinery; she cannot perform more than simple, routine tasks
involving no more than simple, short instructions, simple workrelated decisions, and few workplace changes; and she cannot
maintain contact with the general public or more than occasional
contact with co-workers.
(PageID.55.) Continuing with the fourth step, the ALJ determined that Plaintiff was unable to
perform any of her past relevant work. (PageID.60.) At the fifth step, the ALJ questioned the VE
to determine whether a significant number of jobs exist in the economy that Plaintiff could perform
given her limitations. See Richardson, 735 F.2d at 964. The VE identified the following positions
as those Plaintiff could perform: garment sorter (1,020 regional jobs2 and 41,000 national jobs),

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At the hearing, the VE defined regional jobs as those jobs existing within the lower peninsula of the state of
Michigan. (PageID.101.)

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folder (1,100 regional jobs and 44,000 national jobs), and sorter of agricultural produce (1,000
regional jobs and 40,000 national jobs). (PageID.101–102.) Based on this record, the ALJ found
that Plaintiff was capable of making a successful adjustment to work that exists in significant
numbers in the national economy. (PageID.62.)
Accordingly, the ALJ concluded that Plaintiff was not disabled at any point from her
alleged disability onset date through the date of decision. (PageID.62.)
DISCUSSION
1.

The ALJ Properly Evaluated Plaintiff’s Credibility.

At the hearing, Plaintiff testified that she was impaired to an extent far greater than
that recognized by the ALJ. For example, Plaintiff stated that she had pain in her lower
joints–placing the pain at a ten on a scale of one to ten. (PageID.83.) She could only sit down for
five minutes without getting up, and walk or stand for ten minutes before needing to rest.
(PageID.83–84.) She further stated she had a panic attack every day. (PageID.84.) She testified that
about once a week she becomes fearful when going outside, and at all times cannot go beyond her
driveway by herself.

(PageID.95–96.)

The ALJ found her testimony to not be credible.

(PageID.56.) Plaintiff argues the ALJ erred in doing so.
As the Sixth Circuit has long recognized, “pain alone, if the result of a medical
impairment, may be severe enough to constitute disability.” King v. Heckler, 742 F.2d 968, 974 (6th
Cir. 1984); see also Grecol v. Halter, 46 F. App’x 773, 775 (6th Cir. 2002). As the relevant Social
Security regulations make clear, however, a claimant’s “statements about [her] pain or other
symptoms will not alone establish that [she is] disabled.” 20 C.F.R. §§ 404.1529(a), 416.929(a); see
also Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997) (quoting 20 C.F.R.
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§ 404.1529(a)); Hash v. Comm’r of Soc. Sec., 309 F. App’x 981, 989 (6th Cir. 2009). Instead, a
claimant’s assertions of disabling pain and limitation are evaluated under the following standard:
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
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
Walters, 127 F.3d at 531 (citations omitted). This standard is often referred to as the Duncan
standard. See Workman v. Comm’r of Soc. Sec., 105 F. App’x 794, 801 (6th Cir. 2004).
Accordingly, “subjective complaints may support a finding of disability only where
objective medical evidence confirms the severity of the alleged symptoms.” Id. (citing Blankenship
v. Bowen, 874 F.2d 1116, 1123 (6th Cir. 1989)). However, where the objective medical evidence
fails to confirm the severity of a claimant’s subjective allegations, the ALJ “has the power and
discretion to weigh all of the evidence and to resolve the significant conflicts in the administrative
record.” Id. (citing Walters, 127 F.3d at 531).
In this respect, it is recognized that the ALJ’s credibility assessment “must be
accorded great weight and deference.” Id. (citing Walters, 127 F.3d at 531); see also Heston v.
Comm’r of Soc. Sec., 245 F.3d 528, 536 (6th Cir. 2001) (“[i]t is for the [Commissioner] and his
examiner, as the fact-finders, to pass upon the credibility of the witnesses and weigh and evaluate
their testimony”). It is not for this Court to reevaluate such evidence anew, and so long as the ALJ’s
determination is supported by substantial evidence, it must stand. The ALJ found Plaintiff’s
subjective allegations to not be fully credible, a finding that should not be lightly disregarded. See
Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 780 (6th Cir. 1987). In fact, as the Sixth

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Circuit has stated, “[w]e have held that an administrative law judge’s credibility findings are virtually
unchallengeable.” Ritchie v. Comm’r of Soc. Sec., 540 F. App’x 508, 511 (6th Cir. 2013) (citation
omitted).
The ALJ discussed Plaintiff’s testimony regarding her nonexertional complaints as
follows:
Although the evidence of record also indicates that the claimant has
been assessed to have depressive and anxiety/panic disorders, the
overall record is not reflective of emotional symptoms experienced
by the claimant to a debilitating degree, as would be suggested by a
history of repeated hospitalizations for mental health treatment.
Records from her various treatment providers, as well as the
psychological report from Dr. Lozer, show that the claimant has
consistently presented for exams as cooperative and in contact with
reality. There are no annotations that she exhibited evidence of
hostility, suspiciousness, tangentiality, or unusual behavior or
mannerisms. Again, no significant deficits of cognition, memory,
concentration or judgment were evident upon the consultative
psychological evaluation of the claimant conducted by Dr. Lozer in
November 2013, where she offered clear, rational responses and
displayed relevant, logical, and organized though processes with no
evidence of a though disorder (Exhibit 22F). There is no evidence
showing that the claimant has reported experiencing significant
adverse-side effects from her current medication regimen, and she has
consistently reported improvement of her mood and anxiety with their
use. Furthermore, per her own admissions, she has clearly maintained
an adequate amount of daily activities since May 31, 2012, the date
she alleges she became disabled and unable to work.
(PageID.59.) The ALJ’s reasons for discounting Plaintiff’s allegations are supported by substantial
evidence. In addition to finding her testimony inconsistent with her daily activities–a determination
Plaintiff has not challenged–the ALJ found Plaintiff’s testimony was inconsistent with the record,
which showed a lack of repeated hospitalizations and normal mental status exams. In this the ALJ
gave an accurate recitation of the evidence of record, and accordingly substantial evidence supports
the ALJ’s decision.
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Plaintiff argues, however, that in discrediting her statements, the ALJ improperly
played doctor, improperly relied on normal mental status findings, and failed to properly consider
her use of medication, including the side effects she experienced. (PageID.957–961.)
The Court disagrees with Plaintiff’s characterization of the ALJ’s credibility
discussion. The ALJ did not improperly state that a claimant would require a certain amount of
hospitalizations in order to be disabled. Rather it was entirely proper for the ALJ to note that
Plaintiff had not been repeatedly hospitalized for mental health treatment.

See 20 C.F.R.

404.1529(c) (noting that in evaluating the intensity and persistence of a claimant’s symptoms, the
Commissioner will consider several relevant factors, including “treatment, other than medication,
you receive or have received for relief of your pain or other symptoms”). In noting the lack of
repeated hospitalizations, the ALJ did not base her factual finding regarding Plaintiff’s credibility
on her own lay medical opinion. See Griffith v. Comm’r of Soc. Sec., 582 F. App’x 555, 562 (6th
Cir. 2014) (“As the ALJ properly reviewed and weighed the reports to make a legal determination
that is supported by substantial evidence, the assertion that the ALJ was ‘playing doctor’ is
unsupported.”); cf. Simpson v. Comm’r of Soc. Sec., 344 F. App’x 181, 194 (6th Cir. 2009).
The Court also disagrees with Plaintiff’s statement that the ALJ believed evidence
of hostility, suspiciousness, tangentiality, or unusual behavior of mannerisms was required in order
to be found disabled. While the ALJ perhaps could have been more clear, what is evident from the
preceding sentence of the discussion is that the ALJ found Plaintiff’s testimony to be inconsistent
with mental status exams finding Plaintiff to be cooperative and in contact with reality. This
observation is supported by substantial evidence. For example, at a May 2, 2013, group therapy
session Plaintiff was not on any medication, but was calm, attentive, logical, and cooperative.

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(PageID.474–475.) Later, Dr. James Lozer, a consultative examiner, found Plaintiff to be in contact
with reality and had a fair insight. (PageID.885–886.) The ALJ reasonably found these normal
mental status examinations to be inconsistent with the severity of Plaintiff’s allegations. Plaintiff
relatedly argues, however, the ALJ erred by “focus[ing] on objective signs that are lacking from a
single examination” even though the “overall record supports” her complaints. (PageID.960.) The
problem with this argument is that it is the ALJ, not the Court, who is charged with weighing the
evidence. It is the ALJ’s role to weigh the evidence and resolve inconsistencies. Her decision must
be upheld so long as it is supported by substantial evidence. See Richardson, 402 U.S. at 399.
Though the ALJ may have only specifically cited to one report, her discussion makes clear she was
also relying on other reports that demonstrate normal findings. As noted above, this determination
is supported by substantial evidence.
Next, Plaintiff argues the ALJ erred failing to find that Plaintiff reported side effects
from her medications. The ALJ noted Plaintiff’s testimony that her medications made her drowsy
and dizzy, but noted that Plaintiff did not state which medication caused those effects. (PageID.56.)
The ALJ concluded that there was “no evidence showing that the claimant has reported experiencing
significant adverse-side effects from her current medication regimen.” (PageID.59, 960.) Plaintiff
argues otherwise. Allegations of a medication’s side effects must be supported by objective medical
evidence. See Essary v. Comm’r of Soc. Sec., 114 F. App’x 662, 665–66 (6th Cir. 2004) (where
plaintiff testified that she suffered from dizziness and drowsiness as a result of her medications, the
ALJ did not err in finding that she suffered no side effects where her medical records contain no such
reported side effects to her physicians); Farhat v. Sec’y of Health & Human Servs., No. 91–1925,
1992 WL 174540 at * 3 (6th Cir. July 24, 1992) (“[claimant’s] allegations of the medication’s

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side-effects must be supported by objective medical evidence”). Plaintiff argues that Ativan makes
her drowsy, and that Klonopin was not effective. (PageID.960.) As for Klonopin, lack of efficacy
does not appear to constitute a side effect that the ALJ needed to consider. As regards Ativan, there
was one report where her psychologist recorded her statement that Ativan put her to sleep.
(PageID.444.) But as Plaintiff herself admits, she is no longer taking that medication, and that ALJ
specifically noted that Plaintiff reported no side effects from her current regime. Accordingly, the
Court finds that Plaintiff has failed to provide objective medical evidence demonstrating that she
experienced side effects from her current medication regime, and for that reason her argument must
be rejected.
Similarly, Plaintiff errs by citing to medications she no longer takes in arguing the
ALJ mistakenly found she consistently reported improvement on her current medications.
(PageID.960–961.) True, she reported to Dr. James Lozer (a consultative examiner) after the hearing
that her current medications were not helping (PageID.883) but her statements to her other
physicians are otherwise. As Plaintiff herself puts it, she “was trialed on multiple antidepressants
until she found relief on the second trial of Cymbalta.” (PageID.961) (emphasis added.) When she
was discharged from Forest View Hospital on Cymbalta and Seroquel her mood had improved.
(PageID.504.) She was given a good prognosis so long as she continued her medication and kept
her appointments.

(PageID.505.)

The ALJ did not err in finding that Plaintiff regularly

demonstrated improvement on her current medication.

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Here, the ALJ’s factual finding regarding Plaintiff’s credibility, in total, is supported
by substantial evidence and withstands scrutiny under the deferential substantial evidence standard
of review. Plaintiff’s claim of error is denied.3
2.

The ALJ Properly Evaluated the Medical Opinions in the Record.

Plaintiff next argues the ALJ erred in failing to assign proper weight to the opinions
of Dr. Lozer and Ms. Angela Smith, her sister. The Court disagrees.
Plaintiff first argues that the ALJ erred in assigning only little weight to a portion of
Dr. James Lozer’s opinion. Specifically, Plaintiff argues that the ALJ should have credited
Dr. Lozer’s opinion that she “would not be able to engage in full time competitive employment” and
his opinion that Plaintiff had a “marked limitation in her ability to perform and sustain work related
functions” (PageID.888.) Plaintiff argues the ALJ improperly considered GAF scores and ignored
favorable evidence in her decision. (PageID.961–962.)
As a consultative examiner, Dr. Lozer’s opinion was not entitled to any particular
weight. Karger v. Comm’r of Soc. Sec., 414 F. App’x at 744. While Plaintiff correctly notes the
limited usefulness of GAF scores, the problem for Plaintiff is that the ALJ correctly noted that
statements, as those made here, opining that a claimant is disabled or unable to work concern an
issue reserved to the Commissioner and are entitled to no special significance. (PageID.60); 20
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Later in her brief, Plaintiff contends that the ALJ erred by refusing to adopt the hypothetical posed to the VE
which incorporated her subjective complaints. (P:ageID.968.) However, a hypothetical question need only include those
limitations which the ALJ accepts as credible. See Blacha v. Sec’y of Health & Human Servs., 927 F.2d 228, 231 (6th
Cir. 1990). It is well settled that a hypothetical question to a VE need not include unsubstantiated complaints. See Casey
v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993); see also Carrelli v. Comm’r of Soc. Sec., 390
F. App’x 429, 438 (6th Cir. 2010) (“[I]t is ‘well established that an ALJ may pose hypothetical questions to a vocational
expert and is required to incorporate only those limitations accepted as credible by the finder of fact.’”) (quoting Casey,
987 F.2d at 1235). The VE does not determine a claimant’s medical restrictions or how they impact the claimant’s
RFC—that is the ALJ’s job. See Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 247 (6th Cir. 1987). The
ALJ, having found that Plaintiff’s subjective complaints were not fully credible, was not bound by the VE’s responses
to hypothetical questions incorporating a contrary assumption.

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C.F.R. § 404.1527(d). Such statements, by even a treating physician, constitute a legal conclusion
that is not binding on the Commissioner. Crisp v. Sec’y of Health & Human Servs., 790 F.2d 450,
452 (6th Cir.1986). The determination of disability is the prerogative of the Commissioner, not the
treating physician. See Houston v. Sec’y of Health & Human Servs., 736 F.2d 365, 367 (6th
Cir.1984). The ALJ also noted the opinion was inconsistent with Dr. Lozer’s statement that Plaintiff
would have only mild limitations in understanding, remembering, and carrying out simple
instructions and moderate limitations on complex instructions. (PageID.60, 889.) Such is more than
substantial evidence to give only little weight to Dr. Lozer’s conclusory opinion.
Plaintiff further faults the ALJ for failing to say a few words about Dr. Lozer’s
specific statement that Plaintiff would have a marked limitation in the ability to perform and sustain
work related functions. (PageID.963, 993–995.) The Commissioner responds that there is “no
practical distinction” between this statement and Dr. Lozer’s statement that Plaintiff is unable to
work. (PageID.985.) The Court agrees. Plaintiff attempts to distinguish the statement from one
finding a Plaintiff disabled or unable to work, but does little more than assert that while the latter
statement concerns an issue reserved to the Commissioner, the former does not. (PageID.994.) As
explained above, the ALJ summarized Dr Lozer’s report and explained why he gave only partial
weight to the opinion. The ALJ was not required to discuss in detail every part. See Thacker v.
Comm’r of Soc. Sec., 99 F. App’x 661, 665 (6th Cir. 2004) (“An ALJ need not discuss every piece
of evidence in the record for his decision to stand.”). The Court finds no error here.
Plaintiff finally argues the ALJ erred in failing to properly consider the function report
provided by her sister, Ms. Angela Smith. (PageID.963–965.) Ms. Smith qualifies as an “other
source,” and accordingly her statement may be used by the Commissioner to show the severity of

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Plaintiff’s impairments and how it affects Plaintiff ability to work. 20 C.F.R. § 404.1513(d).
Because she was an “other source,” the ALJ was required only to consider Ms. Smith’s opinion. See
SSR 06–03p, 2006 WL 2329939, at *2, 6 (S.S.A. Aug. 9, 2006) (citing 20 C.F.R. §§ 404.1513,
416.913); Cole v. Astrue, 661 F.3d 931, 939 (6th Cir. 2011); Cruse v. Comm’r of Soc. Sec., 502 F.3d
532, 541 (6th Cir. 2007)). This is not a demanding standard. It was easily met here. In addition to
noting Ms. Smith’s relationship with Plaintiff, the ALJ found statements from acceptable sources,
and Plaintiff’s treatment, daily activities, and demeanor at the hearing, all undercut Ms. Smith’s
opinion. Such was more than sufficient to satisfy the ALJ’s obligation to consider the other source
opinion, and for reasons stated above, is supported by substantial evidence.
For all the above reasons, Plaintiff’s claim of error is rejected.
3.

The ALJ’s RFC Determination is Supported by Substantial Evidence.

Plaintiff contends that the ALJ’s RFC assessment failed to provide the full limitations
occasioned by Plaintiff’s fatigue and diffuse pain. (PageID.965–66.) The gist of Plaintiff’s claim
is that these impairments render her incapable of performing the demands of light work.
RFC is a medical assessment of what an individual can do in a work setting despite
functional limitations and environmental restrictions imposed by all of the individual’s medically
determinable impairments. 20 C.F.R. § 404.1545. It is “the maximum degree to which the
individual retains the capacity for sustained performance of the physical-mental requirements of
jobs.” 20 C.F.R. Part 404, Subpt. P, App. 2, § 200.00(C). Here, the ALJ determined that Plaintiff
suffered from depression, anxiety, and undiagnosed myalgias. (PageID.53, 55.) The ALJ also found
that Plaintiff retained the RFC for a limited range of light work, and that she could carry out only
simple, short instructions. (PageID.55–60.) The ALJ carefully considered the evidence related to

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Plaintiff’s mental impairments, complaints of fatigue, and lower extremity pain. (PageID.55–60.)
Plaintiff has not shown that the restrictions the ALJ included in her fact RFC determination, such
as limiting Plaintiff to light work with only occasional postural restrictions and simple, routine tasks
with a further limitation regarding contact with the public and co-worker failed to adequately take
into account Plaintiff's functional limitations stemming from the complained of impairments. The
records Plaintiff depends upon merely document her subjective reports of fatigue and pain,
complaints the ALJ has already found to not be credible. The Court finds, therefore, that the ALJ
properly considered all of Plaintiff’s impairments in formulating the RFC.
Plaintiff further argues that because the ALJ’s RFC assessment does not mirror the
opinion or findings of any medical expert, the ALJ was left to “play doctor” when creating the RFC.
(PageID.966–968.) Plaintiff relies on language in Vaughn v. Comm’r of Soc. Sec., No. 14-CV-12496,
2015 WL 5216165 (E.D. Mich. Sept. 4, 2015), and Deskin v. Comm’r of Soc. Sec., 605 F. Supp. 2d
908 (N.D. Ohio 2008)) to support her assertion. In Vaughn, the court held that “courts have stressed
the importance of medical opinions to support a claimant’s RFC, and cautioned against relying on
their own expertise in drawing RFC conclusions from raw medical data.” Id. at *9. That case cited
Deskin for support. There, in relevant part, the court stated “[a]n ALJ is not qualified to assess a
claimant’s RFC on the basis of bare medical findings, and as a result an ALJ’s determination of RFC
without a medical advisor’s assessment is not supported by substantial evidence.” Id. at 912.
Deskin, however, has been soundly criticized as “not representative of the law established by the
legislature, and interpreted by the Sixth Circuit Court of Appeals.” Henderson v. Comm’r of Soc.
Sec., No. 1:08 CV 2080, 2010 WL 750222, at *2 (N.D. Ohio Mar. 2, 2010). Indeed, as Defendant
correctly notes, the Sixth Circuit has rejected Plaintiff’s argument. See, e.g., Rudd v. Comm’r of Soc.

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Sec., 531 F. App’x 719, 728 (6th Cir. 2013) (“the Commissioner has final responsibility for
determining an individual’s RFC . . . and to require the ALJ to base her RFC finding on a physician’s
opinion ‘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’”) (quoting
SSR 96–5p); Coldiron v. Comm’r of Soc. Sec., 391 F. App’x 435, 439 (6th Cir. 2010) (“The Social
Security Act instructs that the ALJ not a physician ultimately determines a claimant’s RFC.”)
The Court concludes the ALJ acted squarely within her authority in determining
Plaintiff’s RFC. It is the ALJ who has the ultimate responsibility for assessing a Plaintiff’s RFC,
based on all of the relevant evidence. See 20 C.F.R. § 404.1545(a); Webb v. Comm’r of Soc. Sec.,
368 F.3d 629, 633 (6th Cir. 2004) (“The ALJ is charged with the responsibility of evaluating the
medical evidence and the claimant's testimony to form an assessment of [their] residual functional
capacity.”) As the ALJ indicated, Dr. Lozer’s opinion played a part in determining Plaintiff’s RFC.
(PageID.60.) The ALJ also considered Plaintiff’s treatment notes, statements to her physicians, and
activities of daily living. (PageID.60.) The Court finds no error here.
CONCLUSION
For the reasons discussed, the Commissioner’s decision will be AFFIRMED. A
separate judgment shall issue.

Dated:

September 19, 2016

/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE

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