Chandler v. Commissioner of Social Seurity

Filing 26

OPINION & ORDER: Plaintiff's 18 Statement of Specific Errors is overruled. Clerk is directed to enter judgment in favor of Defendant Commissioner of Social Security. Signed by Magistrate Judge Terence P Kemp on 7/1/2014. (agm1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Deanna Chandler,

:

Plaintiff,

:

v.

:
:
Commissioner of Social Security,
Defendant.

Case No. 2:13-cv-324
Magistrate Judge Kemp

:
OPINION AND ORDER
I.

Introduction

Plaintiff, Deanna Chandler, filed this action seeking review
of a decision of the Commissioner of Social Security determining
that, as of February 1, 2006, she was no longer disabled, and
that she had not become disabled after that date.

Plaintiff had

been found disabled in a prior decision dated March 17, 1999, and
had been awarded supplemental security income effective February
1, 1999.
After some delay in the administrative process due to
Plaintiff’s failure to attend a hearing, Plaintiff was given a
hearing before an Administrative Law Judge on June 20, 2011,
followed by a second hearing held on January 10, 2012.

In a

decision dated February 16, 2012, the ALJ upheld the termination
of benefits and also decided that Plaintiff had not been disabled
on any date after February 1, 2006.

That became the

Commissioner’s final decision on March 12, 2013, when the Appeals
Council denied review.
After Plaintiff filed this case, the Commissioner filed the
certified administrative record on August 5, 2013.

Plaintiff

filed her statement of specific errors on October 15, 2013.
Commissioner filed a response on January 17, 2014.

No reply

The

brief has been filed, and the case is now ready to decide.
II.

Plaintiff’s Testimony at the Administrative Hearing

Plaintiff, who was 48 years old at the time of the
administrative hearings and has a GED, testified as follows.

Her

testimony appears at pages 1339-60 of the administrative record.
The first subject discussed at the hearing was Plaintiff’s
alcohol abuse.

She testified that until about three years before

the hearing, she drank steadily, but was able to reduce her
drinking by getting back on medications for her psychological
conditions and through programs she was sent to.

She used

cocaine during the same time that she was abusing alcohol.

She

also acknowledged several criminal convictions and that she spent
time in prison on several occasions, and a short time in jail
more recently.
Plaintiff was then asked some questions about her daily
routine.

She said she was able to cook, do laundry, clean her

house, and listen to the radio.
people.

She did not like to be around

In additional to psychological issues, she stated that

she suffered from sleep apnea, asthma, diabetes, a thyroid
condition, anemia, arthritis, carpal tunnel syndrome, and bone
spurs in her heels.

She had excruciating pain in her low back

which prevented her from sitting, standing, or walking for
prolonged periods.

The pain radiated into her legs.

She also

had shortness of breath, cramping in her hands, and muscle spasms
in her feet and legs.

Lifting over five pounds hurt her back.

She could not walk more than half a block and could sit for only
half an hour.
Plaintiff had worked at a Subway restaurant in the past two
to four years, making sandwiches and taking orders.

She quit the

job because she could not get along with her coworkers.

She did

not leave her home except for going to see the doctor or to the
store, and she did not socialize with friends.
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III.

The Medical Records

The pertinent records - those which are most relevant to the
three errors alleged in Plaintiff’s statement of errors - can be
summarized as follows.

The Court will provide page references

for these records as they are summarized.
A.

Mental Health Records

Plaintiff, in her statement of errors, appears to rely on
these mental health records: three evaluations done by Dr.
Donaldson, one performed by Dr. Todd, several diagnostic or
intake assessments made from 2005 to 2009, and progress notes
from North Central Mental Health Services.

They are accurately

described in Plaintiff’s statement of the medical evidence (Doc.
18, at 4-11), and the Court will provide only a brief recap of
them here.
Dr. Donaldson first saw Plaintiff on December 12, 2005.

At

that appointment, she ascribed her disability to both physical
and psychological concerns, including not wanting to be around
people, depression, and memory problems.

Her affect was agitated

and she claimed not to know why she was seeing Dr. Donaldson.
She described frequent mood swings and anxiety.

Dr. Donaldson

diagnosed a dysthymic disorder and a generalized anxiety disorder
and rated her GAF at 50-60.

He did not note any marked

impairments in functioning.

(Tr. 371-75).

His second report,

based on a clinical evaluation performed on March 21, 2007, was
similar.

He did administer the MMPI-2 but did not view the

results as valid.

At the end of that session, he diagnosed

Plaintiff with a bipolar disorder, a generalized anxiety
disorder, a bereavement disorder, and polysubstance dependence,
but he rated her GAF at 60-65 and, again, while he found numerous
moderate limitations on her ability to do work-related functions,
found no marked limitations.

(Tr. 245-48).

In his third report,

dated April 12, 2010, Dr. Donaldson noted that Plaintiff had no
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impairment in her ability to understand, remember, and carry out
simple tasks or to perform repetitive tasks (although he
questioned her motivation to do so), and that she was moderately
limited in her ability to get along with others and to withstand
ordinary work stress.

At that time, he rated her GAF at 50-55.

(Tr. 666-69).
Dr. Todd saw Plaintiff on March 22, 2010, shortly before Dr.
Donaldson’s last report.

At that time, Plaintiff had been in

treatment at North Central for several years and was taking
medication for psychological conditions.

She had been diagnosed

there with major depression and anxiety.

She was attending

classes, riding public transportation, and doing some household
chores.

Plaintiff’s affect was flat and she reported some

auditory hallucinations.

Dr. Todd diagnosed a bipolar disorder

with psychotic features and rated Plaintiff’s GAF at 50.

She

concluded that Plaintiff was not employable and referred to a
residual functional capacity evaluation form which she had
completed, but that form does not appear to be part of the
record.

(Tr. 652-57).

The diagnostic assessments or intake reports include a
report from Netcare, Inc. dated January 24, 2005, which showed
that Plaintiff was attempting to resume case management following
her release from prison, and that she felt her mood swings were
returning.

She met the criteria for a provisional diagnosis of a

mood disorder.

Her GAF was rated at 55 and her mental status

exam was, for the most part, normal.

(Tr. 376-83).

She

underwent another diagnostic assessment with Directions for Youth
and Families on April 11, 2006 (but never returned for
treatment).
people.

She reported lifelong depression and a dislike of

The recent death of her son and a miscarriage had

intensified her symptoms.

Her initial and final GAF ratings were

59 and the only diagnosis made was post-traumatic stress
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disorder.

(Tr. 249-64).

July 21, 2008.
anxious.”

Next, North Central evaluated her on

Her mood at that time was “depressed and

However, she could complete activities of daily living

“at an adequate level ....”

She was diagnosed with severe

depression with psychotic features (based on her report of
hallucinations) and generalized anxiety disorder.
rated at 54.

(Tr. 594-99).

December, 2009.
anxiety.

Her GAF was

That assessment was updated in

Her only current symptom at that time was

She reported having a good relationship with her

grandmother and sons but had no friends.

Her mood was calm and

her motor activity was within normal limits.

She denied current

hallucinations and she was able to perform normal activities of
daily living.
to 61.

Her diagnoses did not change but her GAF improved

(Tr. 589-94).

Finally, the two sets of progress notes cited by Plaintiff
show, first, that in May, 2009, Plaintiff was not taking
medication and was not depressed, but she was unable to sleep or
concentrate and feared she was “headed for a crash.”

Prior to

that, in September, 2008, she was sleeping well, her appetite was
good, and she denied any depression or mood disturbances.
was taking medication at that time.

(Tr. 600-09).

She

The second

set of notes, dating from 2010, show that Plaintiff had some mood
disturbances when she was off her medications.

(Tr. 845-48).

The Commissioner, in turn cites to other mental health
records.

First, Dr. Voyten, a state agency psychologist,

completed a residual functional capacity assessment form on May
17, 2010.

She concluded that Plaintiff was moderately (but not

markedly) limited in five separate areas, most having to do with
either social interaction or dealing with work stress, based on
Plaintiff’s history of depression.

She noted that Plaintiff had

not received any treatment since 2009 and she cited the findings
of Dr. Donaldson concerning Plaintiff’s ability to do tasks.

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She

also found Plaintiff only partially credible about avoiding
people since she used public transportation and attended classes
at Columbus State.

(Tr. 673-76).

Dr. Voyten also evaluated the

“B” criteria and found no marked impairments.

(Tr. 687).

Dr.

Terry, another psychologist, affirmed that assessment on October
26, 2010.

(Tr. 960).

The Commissioner also points to a comment

made by Plaintiff to a social worker that she “was able to
function in most social situations.”
B.

(Tr. 597).

Records Concerning Asthma/COPD

Plaintiff also raises an issue about whether she met the
requirements of section 3.02 of the Listing of Impairments.

She

cites to a number of medical records documenting her breathing
difficulties.

Those records show the following.

Plaintiff went to the emergency room on November 24, 2009,
complaining of a cough.

Examination revealed some congestion.

She was given three breathing treatments and felt better.
diagnoses included acute bronchitis.

(Tr. 586-87).

The

She received

similar treatment for a cough on May 27, 2010, again being
diagnosed with bronchitis; a chest x-ray taken during that visit
was normal.

(Tr. 703-04).

Her cough was improved with treatment

when she was seen four days later.

(Tr. 705-06).

She was still

wheezing when she went to the hospital two weeks later reporting
chest pain and shortness of breath.

She was treated with

Albuterol, among other things, and hospitalized for three days
while various tests were run.
(Tr. 714-34).

She was improved on discharge.

She returned to the hospital shortly thereafter

and was diagnosed with a pulmonary embolism, which was treated
with heparin.

(Tr. 752).

Finally, spirometric tests were

administered on October 6, 2010, showing an FEV1 of 1.31 before
the administration of bronchodilators and 1.56 afterwards.
950).
C.

Other Pertinent Records

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(Tr.

The only other medical records which Plaintiff refers to in
her statement of errors are various emergency room records where
Plaintiff reported pain in her hand, chest, abdomen or pelvis,
flank, ankle, and back.

She also cites to some records

indicating she suffered from chronic back pain.

The importance

of these records to her argument is not in their precise content,
but in the fact that they are part of the record and the ALJ did
not (according to Plaintiff) acknowledge or properly consider
them.

Consequently, the Court will discuss these records when it

considers Plaintiff’s third statement of error below.
IV.

The Medical Testimony

A medical expert, Dr. Cherdron, testified at both
administrative hearings.

His testimony at the first hearing

begins at page 1362 of the record.
In that testimony, Dr. Cherdron concluded that the medical
records established the presence of depression, bipolar disorder,
a history of substance abuse, degenerative disk disease, asthma,
COPD, bilateral carpal tunnel syndrome, diabetes, a pulmonary
embolism, hyperthyroidism status post-thyroidectomy, status post
partial vulvectomy, hepatitis, and obesity.

He did not believe

they were so severe as to meet or equal any impairment described
in the Listing of Impairments.

As far as Plaintiff’s physical

ability was concerned, Dr. Cherdron thought she could lift 20
pounds occasionally and ten pounds frequently, could sit for six
hours in a work day and stand or walk four to six hours, with
appropriate breaks, and that she could occasionally bend, crouch,
crawl, stoop, and climb stairs.

She should not be exposed to

concentrated fumes or extremes of cold or heat or humidity, she
could balance and do fine manipulation frequently, and she could
neither climb ropes or ladders or work around unprotected
heights.

He did not think she had experienced any medical

improvement since 1999, however.

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At the second hearing, Dr. Cherdron confirmed that the
impairments he identified at the first hearing were still present
in the record, but that new evidence showed additional
impairments, including cardiomegaly and gastroesophageal reflux
disease.

He then testified that as of October 6, 2010, Plaintiff

satisfied Listing 3.02, chronic pulmonary insufficiency.

He also

changed his view of her residual functional capacity, adding a
limit to standing or walking of four hours per day, with a five
minute break every forty-five minutes, and indicating that she
could grasp only frequently, whereas before he thought she could
do so without limitation.

Lastly, he testified that not only was

there no medical improvement since 1999, but that Plaintiff had
gotten worse.

(Tr. 1383-91).
V.

The Vocational Testimony

Dr. Oestreich also testified at the first administrative
hearing, beginning on page 1370 of the record.

He did not

identify any past relevant work which Plaintiff had performed.
He was then asked to assume that Plaintiff had the limitations
identified by Dr. Cherdron, including a limitation of reaching
overhead with her left arm on only a frequent (rather than
continual) basis.

In Dr. Oestreich’s view, that would permit

Plaintiff to do about 20,000 light jobs in the Columbus area,
such as counter attendant, inspector, or car wash attendant.

If,

in addition, Plaintiff could do simple, routine tasks, was mildly
limited in her ability to perform repetitive tasks, was
moderately limited in her ability to attend to all but simple,
routine tasks, could interact with others only occasionally, and
were limited to low stress work without production quotas or time
pressures, she could do the same jobs he previously identified.
However, if Plaintiff were as limited as she testified, she could
not work.
At the second administrative hearing, a different vocational

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expert, Mr. Olsheski, was called as an expert witness.
testimony begins at page 1391 of the record.

His

Mr. Olsheski said

that the new limitations described by Dr. Cherdron would restrict
Plaintiff to sedentary work and about twenty percent of the light
jobs.

He described three light jobs that Plaintiff could do,

including hand packer, production inspector, and sewing machine
operator.
VI.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages
168-80 of the administrative record.

The important findings in

that decision are as follows.
The Administrative Law Judge found, first, that the
comparison point decision date was March 17, 1999, the date on
which Plaintiff was found to be disabled.

As far as Plaintiff’s

impairments are concerned, the ALJ found that on that date
Plaintiff had severe impairments including an affective disorder,
polysubstance abuse, hepatitis, and a history of a fractured left
elbow with related surgery.

As of February 1, 2006, the date

that benefits were terminated, and as of the date of the
decision, Plaintiff had those impairments plus an anxiety-related
disorder, a personality disorder, diabetes, COPD or asthma,
obesity, cardiomegaly or congestive heart failure, thyroid
disease, bilateral carpal tunnel syndrome, cervical spine
degenerative disc disease, right ankle arthritis, and vulvar
intraepithelial neoplasia.

The ALJ also found that these

impairments did not, at any time after February 1, 2006, meet or
equal the requirements of any section of the Listing of
Impairments (20 C.F.R. Part 404, Subpart P, Appendix 1).
Next, the ALJ found that Plaintiff had experienced medical
improvement in her psychological condition as of February 1,
2006, and that she no longer met the requirements of Listing
12.04 as of that date.

The ALJ then concluded that Plaintiff had

the residual functional capacity to perform light work, as
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described by Dr. Cherdron at the second administrative hearing,
and that she was limited to the performance of simple, repetitive
tasks in a low stress environment with occasional interaction
with others and no strict production requirements or time quotas.
The ALJ found that, with these restrictions, Plaintiff could
perform the jobs identified by the two vocational experts and
that such jobs existed in significant numbers in the regional and
national economies.

Consequently, the ALJ concluded that

Plaintiff’s disability ended on February 1, 2006, and that
Plaintiff was not entitled to benefits.
VII.

Plaintiff’s Statement of Specific Errors

In her statement of specific errors, Plaintiff raises these
issues: (1) substantial evidence does not support the ALJ’s
conclusion about medical improvement in Plaintiff’s mental health
condition; (2) the ALJ did not give appropriate weight to the
opinions of Dr. Todd and Dr. Cherdron; and (3) the ALJ did not
properly analyze Plaintiff’s claim of disabling pain.

The Court

analyzes these claims under the following standard.
Standard of Review.

Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the
Commissioner] as to any fact, if supported by substantial
evidence, shall be conclusive. . . ."

Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion'"

Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229 (1938)).
scintilla.'" Id.
Cir. 1976).

It is "'more than a mere

LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

The Commissioner's findings of fact must be based

upon the record as a whole.

Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th
Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.
1984).

In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into
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account whatever in the record fairly detracts from its weight.'"
Beavers v. Secretary of Health, Education and Welfare, 577 F.2d
383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human
Services, 755 F.2d 495, 497 (6th Cir. 1985).

Even if this Court

would reach contrary conclusions of fact, the Commissioner's
decision must be affirmed so long as that determination is
supported by substantial evidence.

Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).
A.

Medical Improvement

Plaintiff was granted benefits as of February 1, 1999, based
on a determination that her affective disorder met the
requirements of Listing 12.04.

That section presumes disability

when a claimant suffers from a disturbance of mood with either
manic or depressive symptoms, characterized by any one of a
number of symptoms (such as, for a depressive disorder, loss of
interest in all activities, appetite or sleep disturbances,
psychomotor agitation or retardation, decreased energy, feelings
of guilt or worthlessness, difficulty concentrating or thinking,
thoughts of suicide, or hallucinations, delusions or paranoid
thinking) and which also meets two of the four “B” criteria.

The

“B” criteria describe marked impairments in three areas
(activities of daily living, maintaining social functioning, or
maintaining concentration, persistence and pace) and also include
repeated, extended episodes of decompensation.

Plaintiff’s first

argument, phrased exactly as Plaintiff puts it in her brief, is
that “substantial evidence demonstrates that Ms. Chandler does
continue to meet Listing 12.04.”
at 14.

Statement of Errors, Doc. 18,

She supports this argument by recounting many of the

exhibits dealing with her psychological condition and noting that
they support a finding both that she still suffers from an
affective disorder of some type (either depression or anxiety),
still has most of the symptoms recited in Section 12.04(A), and
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meets two of the “B” criteria by having a marked impairment in
the areas of social functioning and maintaining concentration,
persistence and pace.

She does not, however, explain why the

ALJ’s contrary conclusion is not supported by substantial
evidence, and does not discuss the evidence which the ALJ cited
in determining that Plaintiff’s condition had improved to the
point where she no longer satisfied Listing 12.04.
As it relates to the precise argument made by Plaintiff, the
law clearly states that “[t]he findings of the Commissioner are
not subject to reversal merely because there exists in the record
substantial evidence to support a different conclusion.”
v. Halter, 246 F.3d 762, 772 (6th Cir. 2001).

Buxton

However, the Court

will also discuss the related question, and the one briefed by
the Commissioner, which is whether the ALJ’s decision on the
issue of medical improvement has substantial support in the
record.
The ALJ’s decision on this issue begins with the observation
that, at least since February 1, 2006, there is no evidence that
Plaintiff had any marked or extreme functional limitations from a
mental health standpoint.

The ALJ cited Plaintiff’s comment that

she functioned adequately in most social situations and her
ability to read, watch television, and attend classes where she
studied accounting and had to use public transportation.

She

referred to observations made by Dr. Donaldson about Plaintiff’s
appearance and orientation and the fact that he imposed only
moderate work-related limitations.

The ALJ also relied on the

conclusions of Drs. Voyten and Terry that Plaintiff had only mild
or moderate limitations in various areas.
All of the facts cited by the ALJ are supported by the
evidence of record.

None of the evidence to which Plaintiff

refers actually contradicts this evidence, with the possible
exception of Dr. Todd’s opinion that Plaintiff is not employable,
although the record is not clear as to whether Dr. Todd thought
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Plaintiff continued to meet the requirements of Listing 12.04.
However, Dr. Todd is not a treating source, and the ALJ was
entitled both to rely on the conflicting evidence from Dr.
Donaldson and the two state agency psychologists and to resolve
the conflicts in the medical evidence.

See, e.g., Brooks v.

Comm’r of Social Security, 531 Fed. Appx. 636, 642 (6th Cir. Aug.
6, 2013)(citing to Social Security Ruling 96-6p and explaining
when a state agency psychologist’s opinion may be given
significant weight); Walters v. Comm’r of Social Security, 127
F.3d 525, 528 (6th Cir. 1997)(holding that it is not the Court’s
task to resolve conflicts in the evidence), citing Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984).

Consequently, since

the presence of substantial evidence to the contrary - if, in
fact, that is the correct interpretation of the evidence cited by
Plaintiff even though most of it does not specifically mention
any marked areas of impairment - is not a sufficient basis to
overturn the ALJ’s decision, and since there is substantial
support in the record for the ALJ’s decision, Plaintiff’s first
statement of error is without merit.
B.

The Medical Expert Opinions

In her next statement of error, Plaintiff argues that the
ALJ did not give sufficient weight to either Dr. Todd’s opinion
or Dr. Cherdron’s statement that she satisfied Listing 3.02.

The

Court will address each of these contentions in turn.
1.

Dr. Todd

Dr. Todd’s evaluation is summarized above.

In brief, she

concluded that Plaintiff suffered from a bipolar disorder with
psychotic features and that she was not, at least for the ensuing
twelve-month period, employable.

Plaintiff contends that the ALJ

provided “incomplete and incorrect” reasons for rejecting Dr.
Todd’s view (Doc. 18, at 15) and that most of the factors cited
by Dr. Todd in support of her conclusion were consistent with
other evidence of record, including the treatment notes from
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North Central and Dr. Donaldson’s various reports.

The

Commissioner responds that, contrary to Plaintiff’s position, Dr.
Donaldson concluded that Plaintiff could work with only moderate
psychologically-based limitations, and that other evidence
supported the ALJ’s decision to reject Dr. Todd’s opinion.
Dr. Todd was not, of course, a treating source.

Several

legal principles apply to the Court’s review of an ALJ’s decision
to discount the opinions of a medical source who did not treat
the claimant.

First, “it is not a per se error of law ... for

the ALJ to credit a nonexamining source over a nontreating
source.”

Norris v. Comm’r of Social Security, 461 Fed. Appx.

433, 439 (6th Cir. Feb. 7, 2012).

Second, the ALJ is not

required to give “good reasons” for rejecting a nontreating
source’s opinions in the same way as must be done for a treating
source; “an ALJ need only explain its reasons for rejecting a
treating source because such an opinion carries ‘controlling
weight’ under the SSA.”

Id.

As this Court has noted, “[a]n ALJ

is permitted to make ... resolutions of conflicting evidence, and
there is no specific requirement that this type of decision be
set forth in the same type of detail required when rejecting the
opinion of a treating source.”

Jones v. Comm'r of Social

Security, 2012 WL 5378850, *5 (S.D. Ohio Oct. 30, 2012), adopted
and affirmed 2013 WL 556208 (S.D. Ohio Feb. 12, 2013).
ALJ may not simply ignore the opinions of

While the

nontreating sources,

as long as the record contains substantial evidence supporting
the ALJ’s evaluation of such an opinion, that evaluation cannot
be second-guessed by a reviewing court.

See, e.g., Nolan v.

Comm’r of Social Security, 2013 WL 1787386, *6 (S.D. Ohio Apr.
25, 2013), adopted and affirmed 2013 WL 4831029 (S.D. Ohio Sept.
10, 2013).
Here, the ALJ specifically rejected Dr. Todd’s opinion
because Dr. Todd’s report stated that Plaintiff was fully
oriented with clear and coherent thought processes and because
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Plaintiff was studying at Columbus State and using public
transportation.

(Tr. 177).

Those two statements were both true,

although, as Plaintiff notes, she subsequently stopped attending
classes.

Further, the ALJ’s decision about Dr. Todd’s opinion

cannot be read in a vacuum.

The ALJ did cite to Dr. Donaldson’s

contrary views about Plaintiff’s ability to perform various workrelated functions, and also to the state agency reviewers’
assessments discussed in detail above.

The ALJ found them more

credible based on the evidence as a whole; again, Plaintiff’s
argument concerning Dr. Todd’s opinion cites only to evidence
supposedly supporting her views (although not all of it actually
does so), and does not explain why any of the contrary evidence
is not, on this record, substantial enough to support the ALJ’s
decision.

The Court finds that there is substantial support for

the opposite viewpoint, and does not view this issue as one
justifying a remand.
2.

Dr. Cherdron

As noted in the Court’s review of the testimony given at the
administrative hearing, Dr. Cherdron, while he identified a
residual functional capacity which, from a physical standpoint,
appeared to be consistent with Plaintiff’s being able to work,
also said, at one point, that she met Listing 3.02.
not credit this part of his testimony.

The ALJ did

Plaintiff claims that was

error, and that either the ALJ should have accepted that
testimony as consistent with the record or asked Dr. Cherdron
about the issue of medical equivalence.
Listing 3.02 is entitled “Chronic Pulmonary Insufficiency.”
It presumes disability for someone with COPD with an FEV1 equal
to or less than certain values specified in a table included in
the Listing.

For a person of Plaintiff’s height (66"), the key

value is 1.35.

The introduction to the Listing states that the

highest test result must be used, however, and that is true
“whether they were achieved pre- or post-bronchodilator.”
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Bomeisl v. Apfel, 1998 WL 430547, *4 (S.D.N.Y. 1998).

Any test

which includes both higher and lower values “must be considered
as non-qualifying for purposes of the Listing criteria.”

Morgan

v. Astrue, 2013 WL 625097, *4 (D.S.C. Jan. 30, 2013), adopted and
affirmed 2013 WL 633581 (D.S.C. Feb. 20, 2013).

The ALJ rejected

Dr. Cherdron’s testimony for exactly that reason, and Plaintiff
makes no cogent argument that she was wrong to do so.
The ALJ also discussed other evidence of Plaintiff’s
breathing issues.

She noted that the pulmonary embolism had

resolved and that other testing revealed only a mild reduction in
diffusing capacity, see Tr. 961.
normal.

Chest x-rays were consistently

Although Plaintiff faults the ALJ for not asking Dr.

Cherdron for an opinion about medical equivalency, Plaintiff did
not ask that question either.

Plaintiff has cited no legal

authority for the proposition that the ALJ had to make such an
inquiry under the facts of this case, and the law is clear that
an ALJ has no duty to make further inquiries about medical
equivalence if he or she does not believe that “the symptoms,
signs, and laboratory findings reported in the case record
suggest that a judgment of equivalence may be reasonable” - that
is, an ALJ has “broad discretion in determining whether to
consult with a medical expert” on this issue.

Lance v. Astrue,

2008 WL 3200718, *4 (E.D. Tenn. Aug. 5, 2008), citing, inter
alia, SSR 96-6p.

The other evidence cited by both Plaintiff and

by the ALJ does not suggest that a finding of medical equivalence
might be reasonable here, and the ALJ did not err in her
treatment of this issue.
C.

Plaintiff’s Pain

Plaintiff’s third and final statement of error is that the
ALJ did not properly evaluate her subjective complaints of pain.
Citing to Rogers v. Comm’r of Social Security, 486 F.3d 234, 247
(6th Cir. 2007), she argues that the ALJ did not factor into her
analysis the multiple times Plaintiff visited the emergency room
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complaining of pain in her joints, abdomen and chest, nor
Plaintiff’s testimony about how severely her pain limited her
ability to walk, stand, and sit.

She essentially faults the ALJ

for “cherry-picking” the record concerning the pain which
Plaintiff was experiencing as well as the potential side effects
of her medications, including several opiate-based pain
relievers.
Taking these contentions in reverse order, Plaintiff does
not point to any portion of the record where either she or a
health care professional stated that her medications caused side
effects inconsistent with the ability to work at the light or
sedentary exertional levels.

Absent such evidence, the ALJ had

no reason to find that medication side effects were a significant
factor in determining Plaintiff’s residual functional capacity.
As to the balance of Plaintiff’s argument, evaluation of a
claimant's subjective reports of disabling pain is subject to a
two-part analysis.

First, the ALJ must determine if there is

objective medical evidence which confirms the presence of
disabling pain.

If not (and there frequently is not, given that

pain is difficult to measure or quantify, and is experienced
differently even by persons with the same underlying condition),
the ALJ must determine if the claimant suffers from an
objectively-established medical condition of sufficient severity
to permit a reasonable inference to be drawn that the disabling
pain actually exists.

See Duncan v. Secretary of H.H.S., 801

F.2d 847, 853 (6th Cir. 1986).

This procedure is reflected in 20

C.F.R. §404.1529(a).
It is important to note that these inquiries are to be
made separately, and that if there is objective evidence of a
sufficiently severe underlying condition, a claimant can prove
the existence of disabling pain due to that condition through
other evidence even if the medical evidence is not helpful in
establishing the extent of the claimant's pain.
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Felisky v.

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

Thus, the Commissioner is

not permitted to reject allegations of disabling symptoms,
including pain, solely because objective medical evidence is
lacking, but must consider other evidence, including the
claimant's daily activities, the duration, frequency, and
intensity of the symptoms, precipitating and aggravating factors,
medication (including side effects), treatment or therapy, and
any other pertinent factors.

20 C.F.R. §404.1529(c)(3).

The

Commissioner should also give appropriate weight to the opinion
of a long-term treating physician as to whether the claimant is
accurately reporting or exaggerating the extent to which
disabling symptoms exist.

Felisky, 35 F.3d at 1040.

If the

Commissioner summarily rejects the claimant's testimony
concerning pain without considering these matters, reversal or
remand may be warranted.
Since tolerance of pain is a highly individual matter,
determination of disability based on pain also depends to some
extent on the credibility of the claimant.
of H.H.S., 736 F.2d 365 (6th Cir. 1984).

Houston v. Secretary
If the Commissioner

rejects the claimant's testimony as to the extent of the
claimant’s pain, there need not be an express credibility
finding.

Willis v. Secretary of H.H.S., No. 84-3477, slip

op. at 9 (6th Cir. Apr. 30, 1985) (unpublished opinion),
citing Ramirez v. Secretary HEW, 550 F.2d 1286 (1st. Cir.
1977).

However, the reasons for the rejection must be

apparent from the record.

Id.

This requirement insures that

a sufficient record for review of the Commissioner’s credibility
determination is made.

Beavers v. Secretary of HEW, 557 F.2d

383, 386-87 (6th Cir. 1978), citing Combs v. Weinberger, 501 F.2d
1361 (4th Cir. 1974).

In order to reject claimant's credibility,

the Commissioner cannot rely solely on personal observation of
the claimant but must base the credibility determination on "some
other evidence."

Weaver v. Secretary of H.H.S., 722 F.2d 310,
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312 (6th Cir. 1983) (emphasis in original); see also, Persons v.
Secretary of H.H.S., 526 F.Supp. 1202 (S.D. Ohio 1981).

In light

of the Commissioner's opportunity to observe the claimant's
demeanor, the Commissioner's credibility finding is entitled to
deference and should not be discarded lightly.

Kirk v. Secretary

of H.H.S., 667 F.2d 524, 538 (6th Cir. 1981); Beavers v.
Secretary of HEW, 577 F.2d at 386-87.

The evaluation of a

claimant’s credibility is largely committed to the discretion of
the Commissioner, and the findings made in that regard are
entitled to “great weight and deference.”

Walters v. Comm’r of

Social Security, 127 F.3d 525, 531 (6th Cir. 1997).

However, the

Commissioner's credibility finding is not entitled to substantial
deference if the medical and lay evidence supporting allegations
of pain is uncontradicted and overwhelming.

King v. Heckler, 742

F.2d 968 (6th Cir. 1984).
Here, the ALJ provided the following rationale for finding
Plaintiff’s subjective complaints of disabling symptoms less than
fully credible.

After reciting the proper legal standard (Tr.

175), the ALJ concluded that Plaintiff’s “subjective complaints
are disproportionate and not supported by the record.”
177).

(Tr.

Her criminal history was noted as a factor in this

analysis, two reviewing sources (Dr. Manos and Dr. Sagone) found
her to be only partially credible, and the ALJ referred to a
number of statements and testimony which indicated that Plaintiff
could do more than she alleged, including evidence that she read,
attended college classes, used public transportation, lived
alone, functioned adequately in most social situations, and
appeared fully oriented ant not confused when she was evaluated
by Dr. Donaldson.

These are all legitimate factors to take into

account when evaluating the credibility of a social security
claimant.

See, e.g., Dozier v. Astrue, 2012 WL 2344163, *8 (N.D.

Ohio Mar. 15, 2012), adopted and affirmed 2012 WL 2343907 (N.D.
Ohio June 20, 2012)(collecting cases on use of claimant’s
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criminal history as a factor in evaluating credibility); see also
Jernigan v. Comm’r of Social Security, 2014 WL 1328177, *10
(E.D. Mich. Mar. 28, 2014), citing, inter alia, SSR 96-7p (“One
strong indication of the credibility of an individual's
statements is their consistency, both internally and with other
information in the case record”).
The fact that the ALJ did not specifically cite to the
emergency room visits mentioned in Plaintiff’s statement of
errors does not mean that they were not considered. The ALJ
relied heavily on the assessment done by Dr. Cherdron, the
medical expert, who reviewed these records. Further, “the fact
an ALJ did not specifically state every piece of evidence or
every symptom is not an error.” Dickey-Williams v. Commissioner
of Social Security, 975 F.Supp.2d 792, 807 (E.D. Mich. 2013).
Given the amount of deference owed to the ALJ’s resolution of
credibility issues, and the fact that the ALJ’s reasoning process
in this case is supported by the evidence, the fact that other
evidence might also have supported the opposite conclusion is not
determinative. The Court finds no merit in Plaintiff’s final
statement of error.
VIII. Decision
Based on the above discussion, Plaintiff’s statement of
errors is overruled and the Clerk is directed to enter judgment
in favor of the Defendant Commissioner of Social Security.

/s/ Terence P. Kemp
United States Magistrate Judge

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