Humphrey v. Commissioner of Social Security Administration

Filing 33

Memorandum Opinion and Order that the decision of the Commissioner is affirmed (Related Doc # 1 ). Signed by Magistrate Judge William H. Baughman, Jr. on 3/14/2013. (S,G)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

APRIL HUMPHREY,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

)
)
)
)
)
)
)
)
)
)

CASE NO. 1:12 CV 280

MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.

MEMORANDUM OPINION AND
ORDER

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A.
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B.
The ALJ’s decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C.
Arguments for reversal of the Commissioner’s decision . . . . . . . . . . . . .

-3-3-3-5-

Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6A.
Standards of review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -61.
Substantial evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -62.
Treating physician rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -7B.
Application of standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -141.
The ALJ’s assessment of the opinion of treating physician Dr. Waghray
conforms to the treating physician rule and is supported by substantial
evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -142.
The ALJ’s credibility decision to discount Humphrey’s credibility was
proper under the applicable standards and is supported by substantial
evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -183.
The RFC findings as to cognitive function are supported by substantial
evidence.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -20Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -22-

Introduction
Before me1 is an action under 42 U.S.C. § 405(g) by plaintiff April Humphrey seeking
judicial review of the final decision of the Commissioner of Social Security denying her
applications for disability insurance benefits and supplemental security income.2 The
Commissioner has filed an answer3 and the transcript of the administrative proceedings.4
Pursuant to my initial order5 and procedural order,6 the parties have briefed their positions7
and filed supporting charts8 and fact sheets.9 The parties participated in a telephonic oral
argument.10
For the reasons stated below, I will find that the Commissioner’s decision is supported
by substantial evidence and will, therefore, be affirmed.

1

The parties have consented to my exercise of jurisdiction. ECF # 14.

2

ECF # 1. Because Humphrey is now receiving state workers’ compensation benefits,
she has stated that the portion of her application dealing with supplemental security income
benefits is now moot. See, ECF # 19 at 1.
3

ECF # 11.

4

ECF # 13.

5

ECF # 5.

6

ECF # 18.

7

ECF # 24 (Humphrey’s brief); ECF # 30 (Commissioner’s brief).

8

ECF # 24, Attachment 1 (Humphrey’s charts); ECF # 30, Attachment 1
(Commissioner’s charts).
9

ECF # 17 (Humphrey’s fact sheet).

10

ECF # 31 (minutes of oral argument); ECF # 32 (transcript of oral argument).
-2-

Facts
A.

Background
The claim here was originally filed in 2004 and then, after being denied by the

Commissioner, was the subject of a civil action filed here in 2008.11 After the parties
stipulated to a remand to consider the assessment of one of Humphrey’s treating physician’s,
an additional hearing before a new Administrative Law Judge (“ALJ”) was held in 2010, and
in 2011 the claim was again denied.12
B.

The ALJ’s decision
Humphrey, who was born in 1967,13 testified that she completed the ninth grade while

attending special education classes14 and that she previously worked as a maintenance
supervisor and cleaner, as well as an apartment leasing manager.15 She told the ALJ that she
is disabled by reason of “chronic pain in her back and neck which radiates into her arms and
legs ...[thereby causing] her arms and legs to give out ...[after] standing, sitting or walking

11

See, ECF # 24 at 2 (citing Transcript of Administrative Proceedings (“Tr.”) ECF #

12

Id. at 2-3.

13

Tr. at 734.

14

Id. at 793.

15

Id. at 787; see also, ECF # 19 at 2.

13).

-3-

for too long.”16 In addition, she testified that she “has trouble concentrating due to her
depression and pain.”17
Upon consideration of Humprey’s testimony and the medical evidence, the ALJ
determined that she had severe impairments consisting of degenerative disc disease of the
cervical and lumbar spine and dysthymia.18 In next determining that these impairments did
not meet or equal a listing, the ALJ specifically found that the physical impairment did not
meet listing § 1.04 and that the mental impairment of dysthymia, or chronic depression, did
not meet or equal listing § 12.04.19
The ALJ then made the following finding regarding Humphrey’s residual functional
capacity (RFC):
The claimant has the residual functional capacity to perform sedentary work
... except
•

she must be able to alternate between sitting and standing every hour
for five minutes

•

she can occasionally climb stairs and ramps

•

she can occasionally balance, stoop, kneel and crawl

•

she cannot bend

16

Tr. at 728.

17

Id.

18

Id. at 726.

19

Id. at 726-27.
-4-

•

she can reach in front but not overhead

•

she can handle, finger and feel

•

she must [avoid] hazardous conditions or extreme cold

•

she can perform simple routine tasks with simple short instructions and
[make] simple workplace decisions in an environment with few work
place changes

•

she can have no public contact and only superficial contact with
coworkers and supervisors. 20

Given that residual functional capacity, the ALJ found Humphrey incapable of performing
her past relevant work as a maintenance supervisor, cleaner, and apartment leasing
manager.21
Based on an answer to a hypothetical question posed to the vocational expert at the
hearing setting forth the residual functional capacity finding quoted above, the ALJ
determined that a significant number of jobs existed locally and nationally that Humphrey
could perform.22 The ALJ, therefore, found Humphrey not under a disability.23
C.

Arguments for reversal of the Commissioner’s decision
Humphrey asks for reversal of the Commissioner’s decision on the ground that it does

not have the support of substantial evidence in the administrative record. Specifically,
Humphrey presents three arguments for consideration:
20

Id. at 728.

21

Id. at 733-34.

22

Id. at 734-35.

23

Id. at 735.
-5-

1.

The ALJ found that the opinions of Dr. Waghray, one of Plaintiff’s
treating physicians, were not entitled to controlling weight, and in
particular the ALJ imposed no manipulative limitations. This finding
was not supported by substantial evidence, as the record fully supports
Dr. Waghray’s opinions. Plaintiff has consistently complained of upper
extremity symptoms, she has undergone two cervical fusions, and an
EMG/NCV test shows left sided radiculopathy from the exact level of
her second cervical fusion.24

2.

The ALJ found that Plaintiff’s complaints were not fully credible. This
finding lacks the support of substantial evidence because the ALJ’s
credibility finding misstates the evidence concerning Plaintiff’s
emergency treatment of January 2010 and misreads her drug screening
test.25

3.

The ALJ neglected to find that Plaintiff had an additional problem due
to borderline intellectual functioning, and imposed no limitations on her
ability to read or perform other cognitive functions in the workplace.
The evidence, including objective IQ testing, supports the existence of
intellectual limitations in Plaintiff, and supports that her difficulties in
reading would further limit her employment functioning.26

Analysis
A.

Standards of review

1.

Substantial evidence
The Sixth Circuit in Buxton v. Halter reemphasized the standard of review applicable

to decisions of the ALJs in disability cases:
Congress has provided for federal court review of Social Security
administrative decisions. 42 U.S.C. § 405(g). However, the scope of review is
limited under 42 U.S.C. § 405(g): “The findings of the Secretary as to any fact,
24

ECF # 24 at 1.

25

Id.

26

Id.
-6-

if supported by substantial evidence, shall be conclusive....” In other words, on
review of the Commissioner’s decision that claimant is not totally disabled
within the meaning of the Social Security Act, the only issue reviewable by
this court is whether the decision is supported by substantial evidence.
Substantial evidence is “ ‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.’ ”
The findings of the Commissioner are not subject to reversal merely
because there exists in the record substantial evidence to support a different
conclusion. This is so because there is a “zone of choice” within which the
Commissioner can act, without the fear of court interference.27
Viewed in the context of a jury trial, all that is necessary to affirm is that reasonable minds
could reach different conclusions on the evidence. If such is the case, the Commissioner
survives “a directed verdict” and wins.28 The court may not disturb the Commissioner’s
findings, even if the preponderance of the evidence favors the claimant.29
I will review the findings of the ALJ at issue here consistent with that deferential
standard.
2.

Treating physician rule
The regulations of the Social Security Administration require the Commissioner to

give more weight to opinions of treating sources than to those of non-treating sources under
appropriate circumstances.

27

Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (citations omitted).

28

LeMaster v. Sec’y of Health & Human Servs., 802 F.2d 839, 840 (6th Cir. 1986);
Tucker v. Comm’r of Soc. Sec., No. 3:06cv403, 2008 WL 399573, at *6 (S.D. Ohio Feb. 12,
2008).
29

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
-7-

Generally, we give more weight to opinions from your treating sources, since
these sources are likely to be the medical professionals most able to provide
a detailed, longitudinal picture of your medical impairment(s) and may bring
a unique perspective to the medical evidence that cannot be obtained from
objective medical findings alone or from reports of individual examinations,
such as consultative examinations or brief hospitalizations.30
If such opinions are “well-supported by medically acceptable clinical and laboratory
diagnostic techniques” and “not inconsistent with the other substantial evidence in [the] case
record,” then they must receive “controlling” weight.31
The ALJ has the ultimate responsibility for determining whether a claimant is
disabled.32 Conclusory statements by the treating source that the claimant is disabled are not
entitled to deference under the regulation.33
The regulation does cover treating source opinions as to a claimant’s exertional
limitations and work-related capacity in light of those limitations.34 Although the treating
source’s report need not contain all the supporting evidence to warrant the assignment of
controlling weight to it,35 nevertheless, it must be “well-supported by medically acceptable
clinical and laboratory diagnostic techniques” to receive such weight.36 In deciding if such
30

20 C.F.R. § 404.1527(d)(2).

31

Id.

32

Schuler v. Comm’r of Soc. Sec., 109 F. App’x 97, 101 (6th Cir. 2004).

33

Id.

34

Swain v. Comm’r of Soc. Sec., 297 F. Supp. 2d 986, 991 (N.D. Ohio 2003), citing
Green-Younger v. Barnhart, 335 F.3d 99, 106-07 (2nd Cir. 2003).
35

Garner v. Heckler, 745 F.2d 383, 391 (6th Cir. 1984).

36

Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 536 (6th Cir. 2001).
-8-

supporting evidence exists, the Court will review the administrative record as a whole and
may rely on evidence not cited by the ALJ.37
In Wilson v. Commissioner of Social Security,38 the Sixth Circuit discussed the treating
source rule in the regulations with particular emphasis on the requirement that the agency
“give good reasons” for not affording controlling weight to a treating physician’s opinion in
the context of a disability determination.39 The court noted that the regulation expressly
contains a “good reasons” requirement.40 The court stated that to meet this obligation to give
good reasons for discounting a treating source’s opinion, the ALJ must do the following:
•

State that the opinion is not supported by medically acceptable clinical
and laboratory techniques or is inconsistent with other evidence in the
case record.

•

Identify evidence supporting such finding.

•

Explain the application of the factors listed in 20 C.F.R.
§ 404.1527(d)(2) to determine the weight that should be given to the
treating source’s opinion.41

The court went on to hold that the failure to articulate good reasons for discounting
the treating source’s opinion is not harmless error.42 It drew a distinction between a

37

Id. at 535.

38

Wilson v. Comm’r of Soc. Sec., 378 F.3d 541 (6th Cir. 2004).

39

Id. at 544.

40

Id., citing and quoting 20 C.F.R. § 404.1527(d)(2).

41

Id. at 546.

42

Id.
-9-

regulation that bestows procedural benefits upon a party and one promulgated for the orderly
transaction of the agency’s business.43 The former confers a substantial, procedural right on
the party invoking it that cannot be set aside for harmless error.44 It concluded that the
requirement in § 1527(d)(2) for articulation of good reasons for not giving controlling weight
to a treating physician’s opinion created a substantial right exempt from the harmless error
rule.45
The opinion in Wilson sets up a three-part requirement for articulation against which
an ALJ’s opinion failing to assign controlling weight to a treating physician’s opinion must
be measured. First, the ALJ must find that the treating source’s opinion is not being given
controlling weight and state the reason(s) therefor in terms of the regulation – the absence
of support by medically acceptable clinical and laboratory techniques and/or inconsistency
with other evidence in the case record.46 Second, the ALJ must identify for the record
evidence supporting that finding.” 47 Third, the ALJ must determine what weight, if any, to
give the treating source’s opinion in light of the factors listed in 20 C.F.R.
§ 404.1527(d)(2).48

43

Id.

44

Id.

45

Id.

46

Wilson, 378 F.3d at 546.

47

Id.

48

Id.
-10-

In a nutshell, the Wilson line of cases interpreting the Commissioner’s regulations
recognizes a rebuttable presumption that a treating source’s opinion should receive
controlling weight.49 The ALJ must assign specific weight to the opinion of each treating
source and, if the weight assigned is not controlling, then give good reasons for not giving
those opinions controlling weight.50 In articulating good reasons for assigning weight other
than controlling, the ALJ must do more than state that the opinion of the treating physician
disagrees with the opinion of a non-treating physician51 or that objective medical evidence
does not support that opinion.52
The failure of an ALJ to follow the procedural rules for assigning weight to the
opinions of treating sources and the giving of good reason for the weight assigned denotes
a lack of substantial evidence even if the decision of the ALJ may be justified based on the
record.53 The Commissioner’s post hoc arguments on judicial review are immaterial.54
Given the significant implications of a failure to properly articulate (i.e., remand)
mandated by the Wilson decision, an ALJ should structure the decision to remove any doubt
as to the weight given the treating source’s opinion and the reasons for assigning such

49

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007).

50

Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406-07 (6th Cir. 2009).

51

Hensley v. Astrue, 573 F.3d 263, 266-67 (6th Cir. 2009).

52

Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551-52 (6th Cir. 2010).

53

Blakley, 581 F.3d at 407.

54

Wooten v. Astrue, No. 1:09-cv-981, 2010 WL 184147 (N.D. Ohio Jan. 14, 2010).
-11-

weight. In a single paragraph the ALJ should state what weight he or she assigns to the
treating source’s opinion and then discuss the evidence of record supporting that assignment.
Where the treating source’s opinion does not receive controlling weight, the decision must
justify the assignment given in light of the factors set out in §§ 1527(d)(1)-(6).
The Sixth Circuit has identified certain breaches of the Wilson rules as grounds for
reversal and remand:
•

the failure to mention and consider the opinion of a treating source,55

•

the rejection or discounting of the weight of a treating source without
assigning weight,56

•

the failure to explain how the opinion of a source properly considered
as a treating source is weighed (i.e., treating v. examining),57

•

the elevation of the opinion of a nonexamining source over that of a
treating source if the nonexamining source has not reviewed the
opinion of the treating source,58

•

the rejection of the opinion of a treating source because it conflicts with
the opinion of another medical source without an explanation of the
reason therefor,59 and

55

Blakley, 581 F.3d at 407-08.

56

Id. at 408.

57

Id.

58

Id. at 409.

59

Hensley, 573 F.3d at 266-67.
-12-

•

the rejection of the opinion of a treating source for inconsistency with
other evidence in the record without an explanation of why “the treating
physician’s conclusion gets the short end of the stick.”60

The Sixth Circuit in Blakley v. Commissioner of Social Security61 expressed
skepticism as to the Commissioner’s argument that the error should be viewed as harmless
since substantial evidence exists to support the ultimate finding.62 Specifically, Blakley
concluded that “even if we were to agree that substantial evidence supports the ALJ’s
weighing of each of these doctors’ opinions, substantial evidence alone does not excuse
non-compliance with 20 C.F.R. § 404.1527(d)(2) as harmless error.”63
In Cole v. Astrue,64 the Sixth Circuit recently reemphasized that harmless error
sufficient to excuse the breach of the treating source rule only exists if the opinion it issues
is so patently deficient as to make it incredible, if the Commissioner implicitly adopts the
source’s opinion or makes findings consistent with it, or if the goal of the treating source
regulation is satisfied despite non-compliance.65

60

Friend, 375 F. App’x at 551-52.

61

Blakley, 581 F.3d 399.

62

Id. at 409-10.

63

Id. at 410.

64

Cole v. Astrue, 661 F.3d 931 (6th Cir. 2011).

65

Id. at 940.
-13-

B.

Application of standards

1.

The ALJ’s assessment of the opinion of treating physician Dr. Waghray conforms
to the treating physician rule and is supported by substantial evidence.
Initially, it is necessary to precisely define the scope of the first issue on review.

While some questions concerning the handling of opinions from other treating sources
appeared to arise at various points, the issue as presented in Humphrey’s brief lists only the
ALJ’s treatment of the opinion of Dr. Waghray as being at issue,66 a fact which was explicitly
confirmed in the oral argument by Humphrey’s counsel.67
Further, the dispute concerning Dr. Waghray’s opinion centers on the portion of that
opinion relating to Humphrey’s ability to utilize her left hand – an opinion which the ALJ
gave little weight.68 In so doing, the ALJ began by acknowledging that Dr. Waghray was
Humphrey’s primary care doctor.69 But, the ALJ gave little weight to that portion of
Dr. Waghray’s opinion dealing with any limitations on manipulative functions, citing five
distinct, carefully documented reasons:
a.

although Dr. Waghray (and Humphrey) base a claim for manipulative
limitations on results from pin prick tests showing numbness and
tingling, there is no evidence that any numbness and tingling relate to
any proven impairment;

b.

three distinct functional capacity evaluations – in 2004, 2008, and 2010
– all rated Humphrey capable of “frequent fingering;”

66

ECF # 24 at 11-16.

67

ECF # 32 (transcript of oral argument) at 12.

68

Tr. at 731.

69

Id. at 730.
-14-

c.

while a 2004 test showed Humphrey had reduced grip strength, the
physical therapist administering that test reported that Humphrey was
“self-limiting” during the test;

d.

the pin prick tests, on which Humphrey and Dr. Waghray rely, were
done on both sides (bilateral), “while the claimant’s radiculopathy is
only in the left arm;”

e.

Dr. Waghray is not a specialist in orthopedics or neurology, a fact
which is evidenced by his incorrectly stating that Humphrey suffered
from cervical stenosis when no evidence of that condition appeared in
the radiology.70

These multiple reasons, each clearly stated, are contested to some extent by Humphrey
in her brief. In particular, she makes three major arguments:
a.

the “pin prick tests” (a term that Humphrey objects to in that these tests
were part of an EMG/NCV test done in 2008) were related by Dr. Blatt
to nerve injuries from her degenerative disc – one of the impairments
found by the ALJ – and the results for the left arm were confirmed by
later testing;71

b.

the “self-limiting” comment about the 2004 grip test actually related to
the fact that Humphrey was beginning to show the effect from cervical
pain after multiple grips – a finding that Humphrey would need to pace
her work and that then should have been included in the RFC;72

c.

the ALJ was internally inconsistent in giving great weight to
Dr. Waghray’s general, non-specific comments about Humphrey
retaining some capacity for work while giving little weight to specific,
functional opinions – and doing so by “cherry picking” seemingly
contradictory portions of other findings.73

70

Id. at 731.

71

ECF # 24 at 13-14.

72

Id. at 14-15.

73

Id. at 15-16.
-15-

This issue arises at the intersection of the treating source rule and the good reasons
requirement. As discussed, these elements, taken together, form the rubric under which
courts will review an ALJ’s decision to accord lesser weight to the opinion of a treating
source. Although often referred to as a single rule, it must be emphasized that there are two
distinct elements to be analyzed in conducting any judicial review.
Here, there is no dispute that the second “good reasons” element is at issue.
Initially, as to the treating source rule, although the ALJ does not explicitly identify
Dr. Waghray as a treating source whose opinion under the rule is presumptively entitled to
controlling weight, it is clear that the ALJ viewed him as such by stating that he was
Humphrey’s “primary care doctor”74 and by performing a version of the test set forth in the
regulations by which a treating source opinion is accorded less than controlling weight.75 In
that regard, and as will be developed below, the ALJ here took note of factors like the extent
to which the treating source opinion is supported by and/or consistent with other evidence
and the fact that Dr. Waghray is not a specialist in orthopedics or neurology.76
Accordingly, having determined that the opinion of Dr. Waghray, though a treating
source, should be accorded less than controlling weight, the matter then becomes whether

74

Tr. at 730.

75

See, id.; see also, 20 C.F.R. §§ 404.1527(d)(2), 416.927(c)(2); Wilson, 378 F.3d at
544 (citing 20 C.F.R. § 404.1527(d)(2)). As delineated in Wilson, these factors are the length
of the treating relationship and frequency of examination, the nature and extent of the
treatment relationship, supportability of the opinion, consistency of the opinion with the
record as a whole, and specialization of the treating source.
76

Tr. at 730-31.
-16-

the ALJ then complied with the good reasons requirement. As has been plainly taught by the
Sixth Circuit, compliance with the good reasons requirement means that:
(1)

the ALJ must clarify where the treating source opinion was not wellsupported by medically acceptable clinical and diagnostic evidence or
was otherwise inconsistent with other substantial evidence in the
record, identifying the evidence supporting such a conclusion;

(2)

the ALJ must explain how he applied the factors used to determine that
the opinion of the treating source was not entitled to controlling weight;

(3)

“the ALJ’s explanation must be sufficiently specific to make clear to
any subsequent reviewers the weight the adjudicator gave to the
treating source’s medical opinion and the reasons for that weight.”77

It is evident from the record and from the decision of the ALJ that the good reasons
requirement has been met in this case. Most particularly, there are two elements of the record
cited by the ALJ that are unchallenged by Humphrey. First, the existence of three separate
functional capacity evaluations over a period of six years that found Humphrey capable of
frequent fingering.78 Further, the fact that Dr. Waghray is not a specialist in orthopedics or

77

Helm v. Comm’r of Soc. Sec., 405 F. App’x 997, 1000 (6th Cir. 2011) (citation and
internal quotation marks omitted).
78

Tr. at 731 (citing to functional capacity evaluations in 2004, 2008, and 2010). I note
that although the ALJ does not extensively discuss these studies in the reasoning paragraph
itself, he does clearly identify them by reference to the record. Further, he does discuss each
of these studies individually in other portions of the opinion and there accords specific
weight to each result on the basis of how well the conclusion was supported by the findings
of the functional tests. See, e.g., Tr. at 730 (2004 functional evaluation), at 731 (2008
functional evaluation), at 732 (2010 functional evaluation). As such, the ALJ’s reasoning on
this issue is clearly established on the record to a reviewing court and so conforms to that
aspect of the good reasons requirement.
-17-

neurology is clearly spelled out by the ALJ, who then supports the relevance of that finding
by pointing to a lack of clinical support for a prior opinion of Dr. Waghray.79
As such, I find that the ALJ here complied with both the treating source rule and the
good reasons requirement in affording the functional capacity opinion of Dr. Waghray less
than controlling weight, and that this decision was supported by substantial evidence.
2.

The ALJ’s credibility decision to discount Humphrey’s credibility was proper under
the applicable standards and is supported by substantial evidence.
As I detailed in Cross v. Commissioner of Social Security,80 and as is well-established

by case authority, the ALJ’s findings on credibility are entitled to deference from the
reviewing court, and may not be disturbed without compelling reasons.81 Regulations set
forth factors to be considered in assessing credibility,82 and if an ALJ is to discount a
claimant’s complaints as incredible, he must clearly state the reasons for doing so.83
Here, there is no dispute that, in discounting Humphrey’s credibility as to pain, the
ALJ cited to: (a) opinions from two neurosurgeons (Drs. Blatt and Itani), stating that there
were no objective findings supporting the claims of pain;84 (b) inconsistent response to

79

Tr. at 731.

80

Cross v. Comm’r of Soc. Sec., 373 F. Supp. 2d 724, 733 (N.D. Ohio 2005).

81

Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001).

82

20 C.F.R. §§ 404.1529(c)(3)(i)-(vii).

83

Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994).

84

Tr. at 733.
-18-

treatment (despite improvement from physical therapy, Humphrey ceased treatment);85 and
(c) evidence that Humphrey “overstates” her symptoms, with particular note of a 2010
emergency room visit that the ALJ found contained evidence that Humphrey “dramatically
overstate[d] her symptoms compared to her actual functioning.”86 In addition, the ALJ took
note of “medical evidence including radiology and EMG’s, the functional capacity
evaluations and evidence of symptom magnification in the record” to support the discounting
of Humphrey’s claims of pain.87
Almost exclusively, Humphrey contests drawing any negative conclusions from the
2010 emergency room visit, arguing that “there was a reason for Plaintiff’s somewhat bizarre
behavior at that time.”88 Yet, even if the ALJ misconstrued that event, the reasons for
discounting Humphrey’s credibility are, as detailed above, far more extensive than any
conclusions that might have been drawn from that single episode. As presented by the ALJ,
those reasons include opinions from medical specialists and Humphrey’s actions on
numerous other occasions – none of which are here disputed by Humphrey.
Accordingly, for the reasons stated and applying the relevant standard, I find that the
decision of the ALJ to find Humphrey “not fully credible” in her claims of debilitating pain
is supported by substantial evidence and will not here be disturbed.

85

Id.

86

Id.

87

Id.

88

ECF # 24.
-19-

3.

The RFC findings as to cognitive function are supported by substantial evidence.
In her final argument, Humphrey contends that it was “plain error” by the ALJ not to

find that she has the severe impairment of borderline intellectual functioning and then to not
further restrict her RFC to reflect such an impairment.89
The Commissioner responds initially that, because the ALJ’s analysis went beyond
step two and found some severe impairments, it is “legally inconsequential” that the ALJ
may have not found another severe impairment.90 Rather, the Commissioner asserts, the
relevant issue is whether the RFC is proper as concerns any limitations arising out of
purported difficulties in Humphrey’s cognitive functioning.91
The residual functional capacity is a determination of the claimant’s “maximum
remaining ability to do sustained work activities in an ordinary work setting on a regular and
continuing basis, and the RFC assessment must include a discussion of the individual’s
abilities on that basis.”92
Moreover, as the Commissioner correctly observed, Anthony v. Astrue does impose
a requirement that once a severe impairment is determined, “the combined effect of all
impairments must [then] be considered, even if other impairments would not be severe.”93

89

Id. at 19-20.

90

ECF # 30 at 12 (quoting Anthony v. Astrue, 266 F. App’x 451, 457 (6th Cir. 2008)).

91

Id. at 12-13.

92

SSR 96-8p, 1996 WL 374184 (July 2, 1996).

93

White v. Comm. of Soc. Sec., 312 F. App’x 779, 787 (6th Cir. 2009) (referencing
20 C.F.R. §§ 404.1523 and 404.1545(a)(2)).
-20-

Therefore, once Humphrey was determined to have any severe impairments, the ALJ was
required to consider those impairments as well as any non-severe impairments in assessing
her RFC.94
In this case, the ALJ did note that Humphrey has a severe mental impairment in the
form of dysthymia, or a form of chronic depression.95 But this impairment was found to
create only some partial limitations, based on a psychological assessment.96 There is no
argument here that any limitations due to Humphrey’s dysthymia were not properly reflected
in the RFC.
As to any non-severe impairment of borderline intellectual functioning, the ALJ did
note that Humphrey’s treating psychologist, James Medling, Ph.D., stated that Humphrey
“appeared to function in the low average range,” but that, in Dr. Medling’s opinion,
Humphrey would “have good to fair abilities to handle instructions.”97
Based on that limited discussion, and on the balance of the evidence in the record, the
RFC contained mental limitations restricting Humphrey to doing “simple routine tasks with
simple short instructions and [making] simple workplace decisions in an environment with

94

Simpson v. Comm’r of Soc. Sec., 344 F. App’x 181, 191 (6th Cir. 2009).

95

Tr. at 726.

96

Id. at 731 (citing Martin Meyer, Ph.D.).

97

Id. at 727.
-21-

few workplace changes.”98 In addition, the RFC mandated that Humphrey have “no public
contact and only superficial contact with coworkers and supervisors.”99
Thus, while the ALJ’s discussion was not extensive as to how the non-severe
impairment of Humphrey’s cognitive abilities would affect her RFC, the discussion is present
on the record and is supported by evidence cited by the ALJ. Inasmuch as the RFC does
contain significant restrictions as to any mental demands, and given that Humphrey is neither
illiterate but merely “has difficulty with reading”100 (her reading aptitude being measured at
a fifth-grade level),101 I find that there is no error in the RFC itself or in the ALJ’s discussion
of why no further mental restrictions were incorporated into that RFC. Thus, applying the
applicable standard to the present case, I find the RFC to be supported by substantial
evidence.

Conclusion
For the reasons stated above, I find that the ALJ’s finding of no disability is supported
by substantial evidence and is, therefore, affirmed.
IT IS SO ORDERED.

Dated: March 14, 2013

98

Id. at 728.

99

s/ William H. Baughman, Jr.
United States Magistrate Judge

Id.

100

ECF # 32 (transcript of oral argument) at 7.

101

Id. at 8.
-22-