Rios v. Commissioner of Social Security
OPINION; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
OSCAR RIOS, JR.,
Case No. 1:16-cv-171
HON. JANET T. NEFF
COMMISSIONER OF SOCIAL
This is a social security action brought under 42 U.S.C. § 405(g) seeking judicial
review of a final decision by the Commissioner of the Social Security Administration
(Commissioner). Plaintiff Oscar Rios seeks review of the Commissioner’s decision denying his
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.
Plaintiff was fifty-four years of age on the date of the Administrative Law Judge’s
(ALJ) decision. (PageID.46, 70.) He completed the tenth grade, and was previously employed as
a forklift driver and assembly line worker. (PageID.71, 89.) Plaintiff applied for benefits on
February 27, 2013, alleging that he had been disabled since August 1, 2008, due to type II diabetes,
hepatitis, depression, hypertension, and hyperlipidemia. (PageID.97–98, 152–153.) Plaintiff’s
application was denied on August 13, 2013, after which time he requested a hearing before an ALJ.
(PageID.117–127.) On June 19, 2014, Plaintiff appeared with his counsel before ALJ Lawrence
Blatnik for an administrative hearing with testimony being offered by Plaintiff and a vocational
expert (VE). (PageID.65–95.) In a written decision dated August 15, 2014, the ALJ determined that
Plaintiff was not disabled. (PageID.46–64.) On December 21, 2015, the Appeals Council declined
to review the ALJ’s decision, making it the Commissioner’s final decision in the matter.
(PageID.32–36.) Plaintiff subsequently initiated this action under 42 U.S.C. § 405(g).
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 his impairments and that he is precluded from performing past relevant work through step four.
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
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);
An individual who does not have a “severe impairment” will not be found “disabled” (20 C.F.R. §
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);
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);
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).
the claimant’s residual functional capacity (determined at step four) and vocational profile.” Id.
ALJ Blatnik determined that 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 his
alleged disability onset date. (PageID.51.) At step two, the ALJ determined Plaintiff had the
following severe impairments: (1) degenerative disc disease of the lumbar spine; (2) diabetes with
neuropathy; (3) degenerative arthritis with torn meniscus of the left knee; (4) hepatitis C with
cirrhosis of the liver; (5) obesity; (6) depression; (7) a cognitive disorder; and (8) a history of
substance abuse. (PageID.51.) 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.51–52.) At the fourth step, the ALJ determined Plaintiff retained the RFC
based on all the impairments:
to perform light work as defined in 20 CFR 404.1567(b). He can lift
or carry a maximum of 20 pounds occasionally and ten pounds
frequently; stand, walk and sit for at least six hours of an eight-hour
shift; can never climb ladders, ropes or scaffolds; only occasionally
balance, stoop, crouch, kneel, crawl, squat or climb ramps and stairs;
is limited to only occasional exposure to extreme heat, extreme cold
and humidity; can never use air, pneumatic, power, torque or
vibratory tools; and never work with dangerous or unprotected
machinery or at unprotected heights. Furthermore, he is able to
understand, remember and carry out only short simple instructions;
and is limited to simple unskilled work with SVP rating of 1 or 2;
work that involves only occasional contact with, and occasional
direction from, a supervisor; work requiring only brief and superficial
contact with the public; and routine work that does not require
frequent significant changes or adaptations.
(PageID.53.) Continuing with the fourth step, the ALJ determined found that Plaintiff was unable
to perform any of his past relevant work. (PageID.57.) 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 his limitations. See Richardson, 735 F.2d at 964. The VE testified that Plaintiff could
perform other work as a hand packer (50,000 jobs), bench hand (60,000 jobs), press operator (60,000
jobs), and cashier (70,000 jobs). (PageID.90–91.) 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.58.)
Accordingly, the ALJ concluded that Plaintiff was not disabled from August 1, 2008
through August 15, 2014. (PageID.59.)
The ALJ’s RFC Determination is Supported by Substantial Evidence.
Plaintiff first argues that the ALJ “never explains” in his RFC discussion “how
someone with the severe impairments found by the ALJ can do the exertional demands of light
work.” (PageID.1188.) But it is not entirely clear from Plaintiff’s brief exactly how the ALJ may
To the extent that Plaintiff claims his severe impairments should have led the ALJ to find
him disabled, Plaintiff is mistaken. Whether a claimant has a “severe impairment” is determined
at step two of the sequential evaluation, and defined as an impairment or combination of
impairments “which significantly limits your physical or mental ability to do basic work activities.”
20 C.F.R. § 404.1520(c). A claimant’s RFC is determined at step four of the sequential evaluation.
See Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014). RFC is a medical assessment
of what an individual can do in a work setting in spite of functional limitations and environmental
restrictions imposed by all of his medically determinable impairments. 20 C.F.R. § 404.1545. RFC
is defined as “the maximum degree to which the individual retains the capacity for sustained
performance of the physical-mental requirements of jobs” on a regular and continuing basis. 20
C.F.R. Part 404, Subpt. P, App. 2, § 200.00(c); see Cohen, 964 F.2d 524, 530 (6th Cir. 1992). “A
claimant’s severe impairment may or may not affect his or her functional capacity to do work.”
Griffeth v. Comm’r of Soc. Sec., 217 F. App’x 425, 429 (6th Cir. 2007). This is because “[t]he
regulations recognize that individuals who have the same severe impairment may have different
RFC’s depending on their other impairments, pain, and other symptoms.” Griffeth, 217 F. App’x
at 429 (citing 20 C.F.R. § 404.1545(e)); see, e.g., West v. Colvin, No. 5:14–69–KKC, 2014 WL
7177925, at *4 (E.D. Ky. Dec. 6, 2014) (“[t]he ALJ is not required to incorporate all ‘severe
impairments’ in her RFC assessment”). In formulating the RFC, “the ALJ need only articulate how
the evidence in the record supports the RFC determination, discuss the claimant’s ability to perform
sustained work-related activities, and explain the resolution of any inconsistencies in the record.”
Delgado v. Comm’r of Soc. Sec., 30 F. App’x 542, at 547–48 (6th Cir. 2002) (citations and quotation
marks omitted). Accordingly, Plaintiff’s claim that they ALJ’s step two step two determination
mandated a certain RFC or disability determination is rejected.
The gravamen of Plaintiff’s claim, however, appears to be that the ALJ never
explained his RFC determination. While it is apparently a mystery to Plaintiff how the ALJ arrived
at the RFC, the Court is not as perplexed. The ALJ’s RFC discussion spans six pages and includes
a summary of the medical evidence, a discussion of Plaintiff’s allegations, and the discussion of the
opinion evidence. (PageID.52–57.) A review of the ALJ’s decision demonstrates the ALJ
thoroughly discussed the medical record and provided ample reasoning for his RFC determination.
For example, the ALJ noted Plaintiff’s treatment for the impairments he found to be severe, but
found the medical record and Plaintiff’s daily activities did not support the severity of Plaintiff’s
allegations. (PageID.53–56.) The ALJ also gave great weight to the July 2013 opinion from Dr.
B.D. Choi, a state agency consultant. Dr. Choi found that Plaintiff could occasionally lift and carry
twenty pound weights and frequently lift and carry ten pound weights. (PageID.106.) Plaintiff
could stand, walk, and sit each for a total of about six hours in an eight hour workday.
(PageID.106.) He was unlimited in his ability to push and pull. (PageID.106.) The ALJ was free
to consider the consultant’s opinion and determine what weight, if any, it should be given. “Social
Security regulations recognize that opinions from non-examining state agency consultants may be
entitled to significant weight, because these individuals are ‘highly qualified’ and are ‘experts in
Social Security disability evaluation.’” Cobb v. Comm’r of Soc. Sec., No. 1:12–cv–2219, 2013 WL
5467172, at *5 (N.D. Ohio Sept. 30, 2013) (quoting 20 C.F.R. §§ 404.1527(e)(2)(i),
416.927(e)(2)(i)); see Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994). Accordingly, the Court
finds the ALJ adequately explained his reasons for determining Plaintiff could perform a range of
light work, and supported his decision with substantial evidence.
Plaintiff further claims, however, that the ALJ failed to consider several medical
records documenting his complaints of fatigue, memory issues, chronic pain, leg weakness and
swelling, night seats, and trouble sleeping. (PageID.1189–1190.) Plaintiff has not identified a basis
for disturbing the Commissioner’s decision. The ALJ is not required to discuss every piece of
evidence, and his failure to do so does not indicate that the evidence was not considered. See Daniels
v. Comm’r of Soc. Sec., 152 F. App’x 485, 489 (6th Cir. 2005); Simons v. Barnhart, 114 F. App’x
727, 733 (6th Cir. 2004); accord Van Der Maas v. Comm'r of Soc. Sec., 198 F. App’x 521, 526 (6th
Cir. 2006). Moreover it is clear the ALJ did in fact discuss and evaluate several of the impairments
Plaintiff claims he neglected. In discussing Plaintiff’s credibility, for example, the ALJ noted a May
15, 2014, treatment note that found no fatigue. Plaintiff denied any pain, swelling, or stiffness, and
further denied anxiousness, depressed mood, insomnia, or impaired memory. (PageID.1167–1168.)
It is the ALJ’s role to resolve any evidentiary conflicts. See Garner, 745 F.2d at 387. And
Plaintiff’s burden on appeal is much higher than citing evidence on which the ALJ could have found
a greater level of restriction. He must show that the ALJ’s factual finding is not supported by
substantial evidence. See Jones, 336 F.3d at 477 (“[T]he Commissioner’s decision cannot be
overturned if substantial evidence, or even a preponderance of the evidence, supports the claimant’s
position, so long as substantial evidence also supports the conclusion reached by the ALJ.”).
Plaintiff has failed to meet his burden.
For all the above reasons, Plaintiff’s claim of error is denied.
Plaintiff Has Not Demonstrated How the ALJ Violated SSR 02-1P.
At the hearing, Plaintiff testified that he was 5' 10" tall and weighed two hundred
seventy-five pounds. (PageID.70.) Plaintiff next claims the ALJ “[n]ever mentions or evaluates
SSR 02-1p with regard to obesity.” (PageID.1190.) Plaintiff has not demonstrated error.
SSR 02-1p states that:
Obesity is a risk factor that increases an individual’s chances of
developing impairments in most body systems. It commonly leads to,
and often complicates, chronic diseases of the cardiovascular,
respiratory, and musculoskeletal body systems. Obesity increases the
risk of developing impairments such as type II (so-called adult onset)
diabetes mellitus—even in children; gall bladder disease;
hypertension; heart disease; peripheral vascular disease; dyslipidemia
(abnormal levels of fatty substances in the blood); stroke;
osteoarthritis; and sleep apnea. It is associated with endometrial,
breast, prostate, and colon cancers, and other physical impairments.
Obesity may also cause or contribute to mental impairments such as
depression. The effects of obesity may be subtle, such as the loss of
mental clarity or slowed reactions that may result from
obesity-related sleep apnea.
SSR 02–1P, 2000 WL 628049, at *3 (Sept. 12, 2002). The ruling goes on to provide guidance for
evaluating a claimant’s obesity during the sequential evaluation. For example, at step three of the
five-step disability analysis, the Commissioner will:
find that an individual with obesity “meets” the requirements of a
listing if he or she has another impairment that, by itself, meets the
requirements of a listing. We will also find that a listing is met if
there is an impairment that, in combination with obesity, meets the
requirements of a listing. For example, obesity may increase the
severity of coexisting or related impairments to the extent that the
combination of impairments meets the requirements of a listing.
We will also find equivalence if an individual has multiple
impairments, including obesity, no one of which meets or equals the
requirements of a listing, but the combination of impairments is
equivalent in severity to a listed impairment.
Id. at *5. And in determining a claimant’s RFC:
An assessment should also be made of the effect obesity has upon the
individual’s ability to perform routine movement and necessary
physical activity within the work environment. Individuals with
obesity may have problems with the ability to sustain a function over
time. As explained in SSR 96-8p (“Titles II and XVI: Assessing
Residual Functional Capacity in Initial Claims”), our RFC
assessments must consider an individual’s maximum remaining
ability to do sustained work activities in an ordinary work setting on
a regular and continuing basis. A “regular and continuing basis”
means 8 hours a day, for 5 days a week, or an equivalent work
schedule. In cases involving obesity, fatigue may affect the
individual’s physical and mental ability to sustain work activity. This
may be particularly true in cases involving sleep apnea.
Id. at *6. But the ruling then cautions, “we will not make assumptions about the severity or
functional effects of obesity combined with other impairments. Obesity in combination with another
impairment may or may not increase the severity or functional limitations of the other impairment.
We will evaluate each case based on the information in the case record.” Id. In other words, the
ruling does nothing to relieve Plaintiff of the burden of marshaling competent medical opinions and
evidence to show specifically how his obesity exacerbated his other impairments, or interacted with
them, to render him incapable of all suitable work. Plaintiff had the burden of showing specifically
how his obesity, in combination with other impairments, limited his ability to a degree inconsistent
with the ALJ’s RFC determination. Plaintiff fails to meet that burden.
Moreover, as the Sixth Circuit has made clear, SSR 02–1P “does not mandate a
particular mode of analysis, but merely directs an ALJ to consider the claimant’s obesity, in
combination with other impairments, at all stages of the sequential evaluation.” Nejat v. Comm’r
of Soc. Sec., 359 F. App’x 574, 577 (6th Cir. 2009) (citation omitted); see also Bledsoe v. Barnhart,
165 F. App’x 408, 412 (6th Cir. 2006) (“[i]t is a mischaracterization to suggest that Social Security
Ruling 02–01p offers any particular procedural mode of analysis for obese disability claimants”).
The ALJ recognized that Plaintiff was obese at step two and analyzed the entire record in assessing
Plaintiff’s RFC. The Court finds the ALJ’s RFC determination sufficiently accounts for Plaintiff’s
obesity and the limitations reasonably imposed by such. Plaintiff has failed to show otherwise. This
argument is, therefore, rejected.
The ALJ Properly Considered Plaintiff’s Subjective Allegations.
At the administrative hearing, Plaintiff testified that he was impaired to an extent far
greater than that recognized by the ALJ. He testified, for example, that he could not walk for more
than a block at any one time. He could only stand for twenty to thirty minutes, and sit for thirty
minutes. (PageID.78.) He testified that he could not work a full time job, stating that “[j]ust in a
short time I start hurting.” (PageID.83.) He further testified that he had difficulty remembering,
stating that at times he could not remember where he put things, what he was going to do next, or
whether he had taken his medicine. (PageID.85.) The ALJ found Plaintiff’s complaints were “not
entirely credible.” (PageID.53.) Plaintiff claims that the ALJ failed to properly accommodate his
complaints and specifically erred in equating his daily activities to an ability to work.
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 [his] pain or other
symptoms will not alone establish that [he is] disabled.” 20 C.F.R. § 404.1529(a); see also Walters
v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997) (quoting 20 C.F.R. § 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
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)
The ALJ evaluated Plaintiff’s allegations as follows:
The medical evidence of record does not support the degree and
severity of limitation as alleged by the claimant. The treatment
records from 2008 through 2014 at Capital Medicine show that the
claimant generally had normal and stable health condition, even with
his impairments, and he had no medical complications. A May 2014
office visit report from Capital Medicine noted that, other than his
complaint of left knee pain, the the claimant reported that he had no
fatigue. He had no cardiovascular symptoms, and no frequent
urination. With his musculoskeletal review, the claimant reported
that he had no decreased range of motion, stiff[ness] or swelling. He
reported that he had no anxiety, depressed mood, impaired memory
or insomnia. He had no weakness, tremor or paresthesia.
Furthermore, the clinical physical examination showed that the
claimant was well nourished and developed. He had a normal
cardiovascular examination with normal heart sounds and no
murmurs. He generally had no cyanosis, clubbing or edema in his
lower extremities. Neurologically, the claimant had normal motor,
strength and tone in all his extremities. There were no focal deficits,
and his sensory examination was normal. His psychiatric
examination showed good judgment and insight, intact memory and
appropriate mood and affect. The musuloskeletal examination
showed normal station and gait, normal movements of the joints and
no crepitation, tenderness, masses, dislocation, subluxation or laxity.
His muscle strength and tone were normal. The claimant had
numerous office visit reports through his years of treatment at the
Capital Medicine that were essentially the same as the May 2014
office visit report, all indicating a stable and maintained health
condition (Exhibits 7F, 19F, 24F, 27F and 40F).
Furthermore, treatment records relating to the claimant’s hepatitis C
condition from the Gastroenterology Institute showed improvement,
compliance and no side effects. His condition remained maintained
and stable with treatment. His physical, musuloskeletal, neurological
and psychiatric examinations during his follow up office visits with
Dr. Rose were normal (Exhibits 16F, 34F and 35F). In December
2011, during his office visit, Dr. Ezzo forwarded a letter to the
Gastroenterology Institute, indicating that the claimant was not
exhibiting depressive symptoms over the past three months of
receiving injections, which was improving the claimant’s pain. He
continued to maintain a stable psychiatric condition with mental
treatment at the Par Rehab Services. The office reports of Dr. Ezzo
showed that the claimant generally had appropriate judgment, clear
and coherent thought processes, and his overall affect was
appropriate (Exhibit 33F). The treatment records from Dr. Ferro’s
office showed that the claimant had relief with treatment and
improvement of his pain. The reports indicated that the claimant had
overall appropriate affect, and clear and coherent though processes
(Exhibits 31F and 36F).
I considered the credibility of the claimant’s allegations and note that
the claimant had described activities that were not limited to the
extent one would expect, given his complaints of disabling symptoms
and limitations. In the April 2013 function report, the claimant
reported that he had trouble with postural maneuvers and his memory
problem due to the effects of his impairments. At the same time, the
claimant reported that he was able to prepare meals, perform
household chores – including cleaning and doing the laundry – and
mowed the lawn on a weekly basis. He reported that he shopped for
groceries, could handle his finances and followed instructions
(Exhibit 5E). During the August 2009 psychological evaluation, the
claimant reported that he was taking care of his ailing mother
(Exhibit 3F). Additionally, during the hearing, the claimant testified
that he drives daily. He is able to prepare his meals, perform
personal care and grooming and do his laundry and yard work,
including mowing the lawn. He also cleans snow in the winter. The
claimant shops in stores for his groceries. He testified that he is
learning to use a Kindle device. Clearly, these are not the activities
and abilities of an individual who is completely unable to engage in
any substantial gainful activity.
Rather than allege any error in the above discussion, Plaintiff begins by claiming the
“ALJ never rejects any of the Plaintiff’s complaints because they are simply never discussed in the
decision. The ALJ states that he does not find claimant credible; however, the ALJ never discusses
or evaluates Mr. Rio’[s] subjective complaints under 20 CFR 416.929(c).” (PageID.1190.) Plaintiff
goes on to say that “[s]uch factors as medication side effects, daily activities, and pain symptoms
are never discussed in the ALJ[’s] decision.” (PageID.1191.) This is, quite simply, incorrect. As
the above excerpt demonstrates, even a cursory review of the ALJ’s decision reveals an extensive
credibility discussion. (PageID.53, 56–57.) In addition, the ALJ explicitly stated he had evaluated
Plaintiff’s subjective complaints as required in 20 C.F.R. § 404.1529 (the regulation corresponding
to 20 C.F.R. § 416.929 for DIB claims) and discussed Plaintiff’s medication, daily activities, and
allegations of pain. (PageID.53.) It does nothing in service to his client for counsel to provide
broad, generic assertions that are easily proven false.
The Court finds the ALJ’s credibility discussion accurately reflects the record, and
contains several specific reasons for finding Plaintiff’s allegations to not be fully credible.
Accordingly, substantial evidence supports the ALJ’s credibility determination.
Despite his initial misstep, Plaintiff does raise two specific arguments regarding the
ALJ’s credibility discussion. Neither argument, however, compels a different result. Plaintiff first
claims that the ALJ should have credited his work history in evaluating the credibility of his
complaints. (PageID.1191.) In Felisky v. Bowen, 35 F.3d 1027, 1036–41 (6th Cir. 1994) the Sixth
Circuit included the claimant’s work history as one of the factors supporting the claimant’s
credibility, see id. at 1041, but it did not adopt a presumption of credibility based on that factor. Id.
“The Sixth Circuit has never held that a social security benefits claimant is entitled to a ‘presumption
of credibility.’ It is the ALJ’s function to determine credibility issues, and the claimant’s work
history is only one of the many factors that the ALJ can consider in making his credibility
determination.” Barney v. Comm’r of Soc. Sec., No. 1:08–cv–1225, 2010 WL 1027877, at *4 (W.D.
Mich. Jan. 20, 2010) (citing White v. Comm’r of Soc. Sec., 572 F.3d 272, 287 (6th Cir. 2009);
Siterlet v. Sec’y of Health & Human Servs., 823 F.2d 918, 920 (6th Cir. 1987); 20 C.F.R. §
404.1529) report and recommendation adopted, 2010 WL 1027867 (W.D. Mich. Mar. 18, 2010).
The ALJ considered the evidence of record and the extent to which Plaintiff’s
symptoms could “reasonably be accepted as consistent with the objective medical evidence and
other evidence,” which would include Plaintiff’s work history. (PageID.53) (citing 20 C.F.R. §
404.1529). It is patent the ALJ was aware of Plaintiff’s past work as a forklift driver and assembly
line worker. (PageID.57.) Credibility determinations fall within the province of the ALJ. See, e.g.,
Sullivan v. Comm’r of Soc. Sec., 595 F. App’x 502, 508 (6th Cir. 2014). There is substantial
evidence supporting the ALJ’s credibility determination, despite Plaintiff’s work history.
Accordingly, this argument is rejected.
Plaintiff next claims the ALJ impermissibly equated his daily activities with an ability
to perform full time work, and furthermore misrepresented those activities. (PageID.1191–1192.)
In Rogers v. Commissioner of Social Security, 486 F.3d 234, 248 (6th Cir. 2007), the Sixth Circuit
noted that “somewhat minimal daily functions are not comparable to typical work activities.”
However, as the regulations and case law make clear, a claimant’s daily activities may be used in
evaluating the severity of a claimant’s complaints. See 20 C.F.R. § 404.1529(c)(3); Cruse v.
Comm’r of Soc. Sec., 502 F.3d 532, 542 (6th Cir. 2007); Walters, 127 F.3d 525, 532 (6th Cir. 1997)
(“An ALJ may also consider household and social activities engaged in by the claimant in evaluating
a claimant’s assertions of pain or ailments.”); Blacha v. Sec’y of Health & Human Servs., 927 F.2d
228, 231 (6th Cir.1990) (“As a matter of law, an ALJ may consider household and social activities
in evaluating complaints of disabling pain.”).
Here, the ALJ began by noting that Plaintiff’s activities were not as limited as one
would expect, given the severity of his complaints. (PageID.57.) This appears to be a permissive
use of demonstrating a lack of support with, and an inconsistency between, Plaintiff’s complaints
and the record. However, the ALJ ends the discussion by noting that “[c]learly, these are not the
activities and abilities of an individual who is completely unable to engage in any substantial gainful
activity.” (PageID.57.) This statement appears to move into the area that concerned the court in
Rogers. It is not clear, then, whether the ALJ referenced Plaintiff’s activities in an allowable way
or equated them with an ability to work. Ultimately, the Court need not decide this point as even
assuming Plaintiff is correct, the ALJ provided several other reasons, supported by substantial
evidence, for discounting Plaintiff’s allegations. As the above discussion makes clear, the ALJ
found Plaintiff’s complaints enjoyed no support in the record. Treatment records consistently found
normal gait and station, and Plaintiff presented with coherent thought processes, and appropriate
affect. Accordingly, the Court finds no basis for disturbing the ALJ’s decision. See Ulman v.
Comm’r of Soc. Sec., 693 F.3d 709, 714 (6th Cir. 2012) (quoting Carmickle v. Comm’r of Soc. Sec.,
533 F.3d 1155, 1162 (9th Cir. 2008)) (“[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”).
For the reasons articulated herein, the undersigned concludes that the ALJ’s decision
is AFFIRMED. A separate Judgment shall issue.
Dated: October 28, 2016
/s/ Janet T. Neff
JANET T. NEFF
United States District Judge
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