Davis v. Commissioner of Social Security
REPORT AND RECOMMENDATION that Plaintiff's statement of errors be overruled and that judgment be entered in favor of the Commissioner. Objections to R&R due by 4/3/2017. Signed by Magistrate Judge Terence P. Kemp on 3/20/2017. (agm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Melissa E. Davis,
:Case No. 2:16-cv-312
:CHIEF JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp
Commissioner of Social
REPORT AND RECOMMENDATION
Plaintiff, Melissa E. Davis, filed this action seeking
review of a decision of the Commissioner of Social Security
denying her application for disability insurance benefits.
application was filed on September 27, 2011, and alleged that
Plaintiff became disabled on June 10, 2011.
After initial administrative denials of her claim,
Plaintiff was given a hearing before an Administrative Law Judge
on September 17, 2014.
ALJ denied benefits.
In a decision dated October 21, 2014, the
That became the Commissioner’s final
decision on February 17, 2016, when the Appeals Council denied
After Plaintiff filed this case, the Commissioner filed the
administrative record on June 24, 2016.
Plaintiff filed a
statement of errors on August 11, 2016, to which the Commissioner
responded on November 23, 2016.
Plaintiff did not file a reply
brief, and the case is now ready to decide.
Plaintiff’s Testimony at the Administrative Hearing
Plaintiff, who was 44 years old as of the date of the
hearing and who has a high school education with some college
work, testified as follows.
Her testimony appears at pages 44-83
of the administrative record.
Plaintiff testified that she was a licensed cosmetologist.
Other than selling some 31 brand gift products in 2012 and 2013,
she had not worked since her alleged onset date.
she had worked for 23 years as a cosmetologist and as a nail
She owned her own shop for six of those years.
work required standing, bending, and twisting (or, for doing
nails, sitting and bending) and did not involve lifting objects
heavier than a blow dryer.
Plaintiff said she had suffered from scoliosis since she was
More recently, she had developed issues with her neck as
She had not undergone back or neck surgery.
She did have
carpal tunnel release surgery on her left wrist in 2012.
Additionally, she was being given shots in her foot every three
weeks to treat Morton’s neuroma.
not walk at all.
Without those shots, she could
She wore a prescription boot on her right foot
and had been using a TENS unit for several years to help loosen
up her back.
When asked about medications, Plaintiff testified that she
took them for fibromyalgia, a thyroid condition, anxiety, and
She was getting treatment from her family physician,
a rheumatologist, and a licensed social worker.
Her worst pain
was in her back and hip although she also had pain in her
shoulder, arm, and neck, which could radiate into her back.
Plaintiff said she could walk for about ten minutes on level
ground, stand for about the same amount of time, and bend and
squat, but not very well.
She could sit in one position for ten
or fifteen minutes but was never really comfortable.
she sat for too long, her legs went numb.
Plaintiff said that she needed help with personal care.
could not raise her arms high enough to wash her hair.
husband and mother (and sometimes a friend) helped get her
children ready for school in the morning.
She was seldom able to
help with cooking or laundry, and did not often accompany her
husband or her mother when they shopped for groceries.
were times when she had to leave social gatherings due to pain.
She applied ice to her foot at least once per day and often
rested or elevated it as well.
She also said she dropped objects
in the home like a coffee cup or her glasses and that she could
not use either hand repetitively.
The Medical Records
The pertinent medical records are found beginning at page
379 of the administrative record.
They can be summarized as
X-rays were taken of Plaintiff’s lower back and right hip on
March 2, 2009.
They showed levoscoliosis of the spine and mild
degenerative changes at L3-S1, but no abnormalities in the right
An MRI done at about the same time showed a herniated disc
Later in the year, Plaintiff elected to
have steroid injections, which were performed on November 30,
2009 and December 14, 2009.
She also had physical therapy,
which, at the time, appeared to have been effective in reducing
her pain, although she reported later that it was not.
had more injections in 2010 and said they had a temporary effect
on her pain.
The physician who treated her
Morton’s neuroma, Dr. Wayt, commented in November, 2011 that he
thought she could still work and that she had no limitations due
to her foot problems.
He repeated his belief that
she was not disabled in a note dated August 26, 2012.
Also in 2011, Plaintiff underwent an MRI of her thoracic
That study showed bulging discs at various levels as well
as two disc herniations, but without spinal stenosis or cord
An MRI of the cervical spine
showed some disc bulging as well with some loss of disc spacing
and some spinal stenosis.
Finally, an MRI of the
lumbar spine showed that there was degenerative disc disease at
L4-5 with a broad-based disc protrusion which could compromise
the left L5 nerve roots.
However, the study was also interpreted
as showing no changes since April of 2009.
also had carpal tunnel release surgery in 2011.
Wayt’s treatment notes from 2012 showed a diagnosis of
fibromyalgia as well as chronic back pain and depression, and
also indicated that Cymbalta had helped her pain.
developed numbness and shoulder pain on the right side with
associated decrease in range of motion.
shoulder was subsequently injected but that did not have much
An MRI of the shoulder showed some
degenerative changes in the AC joint.
In 2013, she
informed Dr. Wayt that she no longer needed pain medication for
her back and had not been taking it in quite some time.
She continued to report numbness in her right hand and arm
in 2014, however, as well as generalized fatigue.
Dr. Musunuri saw Plaintiff on April 25, 2012, for a
consultative physical evaluation.
Plaintiff reported a three or
four-year history of back pain which was being treated by
physical therapy and a TENS unit.
She more recently began to
experience pain in her right thigh and ascribed this to
She needed to have carpal tunnel surgery on her
right hand and she was depressed.
Manual muscle testing was
normal and he observed no limits on her range of motion.
said she could walk and grip without difficulty.
concluded that any work-related limitations were moderate.
reported her statements about the ability to sit, stand, and
walk, but made no independent assessment of those abilities.
Plaintiff began seeing Dr. Vawter regularly in 2013 (she had
seen him once in 2012).
She told him in May that she was having
discomfort in her back and neck and had not been taking Lyrica,
which he had prescribed, because she could not afford it.
found tender points in her cervical, thoracic, and lumbar areas.
In October, 2013, she reported some relief with Gabapentin.
showed only minimal tenderness over the major muscle groups and
Dr. Vawter described her as being in “minor discomfort.”
On July 22, 2014, he completed a functional capacity
evaluation form, indicating that Plaintiff had fibromyalgia
syndrome, osteoarthritis, degenerative arthritis, and cervical
He said her condition was severe and that she
could not sit, stand, or walk for more than two hours each during
a work day.
She would also have to lie down, could not lift any
amount of weight, and would miss work at least three days per
month and “probably more.”
David R. Bousquet, M.Ed., performed a consultative
psychological evaluation on February 9, 2012.
At that time,
Plaintiff had been in mental health counseling for a few months
and was taking psychotropic medication prescribed by her family
doctor. She reported depression and tearfulness due to pain and
not being able to do things she used to do.
problems with energy level and motivation but also said she
became anxious if she had to do anything or go anywhere.
Plaintiff read during the day but had a hard time finishing
things, and she watched television and cared for a young child.
Mr. Bousquet observed that Plaintiff’s mood was anxious and sad.
He thought her intellectual capacities were in the average range.
He diagnosed a mood disorder due to multiple medical problems and
rated her functional GAF at 60.
He concluded that she could
remember and carry out job instructions, would have difficulty
maintaining attention and concentration or persistence and pace
in a job setting, would not have problems maintaining socially
acceptable behavior in the workplace, and would have some
problems responding to work stress.
A mental health assessment was also done by a therapist,
Carole Ann Al-Din, whose notes show that Plaintiff reported being
unable to work due to pain caused by fibromyalgia and that she
had some problems with anxiety.
Ms. Al-Din diagnosed a major
depressive disorder and an anxiety disorder in addition to a mood
disorder, and she rated Plaintiff’s GAF at 48-50.
progress notes showed that Plaintiff said she was unable to go
back to hair styling because she could not hold her back, neck,
and hands up for any length of time, and that strength and
stretching exercises were helping to reduce her pain.
Counseling notes from later in 2012 indicate that in April,
Plaintiff was doing much better, although she also was
experiencing an increase in anxiety which led to an emergency
visit in May.
In June, she appeared subdued and tired, which
could have been due to caffeine withdrawal.
described her life as a “complete mess.”
By August, she
notes show that she had been absent from counseling for three or
She said in January that she had been walking, and
in April reported doing some work from home.
By May, her affect
was broader, and in July and September her mood was euthymic and
she seemed to be progressing.
She did have one session, however,
where she had to lie on the floor due to low back pain.
Ms. Al-Din subsequently completed a questionnaire
stating that Plaintiff had problems with attention and anxiety
and that she would not likely be able to go back to work due to
those problems and chronic pain.
She also endorsed several
marked limitations in work-related functioning.
State Agency Reviewers
Plaintiff’s impairments were also evaluated by state agency
physicians and psychologists.
From a physical standpoint, Dr.
Hall concluded that Plaintiff could do a limited range of light
work with some postural restrictions and a limitation on the use
of her right arm and hand.
with that assessment.
Dr. Chang later agreed
Neither had the benefit of
Dr. Vawter’s opinion.
As to psychologically-based limitations, Dr. Haskins said
that Plaintiff was moderately limited in her ability to maintain
concentration and attention for extended periods but she could
complete tasks in a static work setting that did not require
close sustained focus or sustained fast pace or have stringent
time or production requirements.
conclusions were reaffirmed by Dr. Rabold.
of those opinions were rendered in 2012.
The Vocational Evidence
Larry Bell testified as the vocational expert in this case.
His testimony begins at page 84 of the administrative record.
First, Mr. Bell was asked to classify Plaintiff’s past
He said that the job of hair stylist was light
and skilled, and that was true even for someone who owned her own
The nail tech job was the same.
Next, Mr. Bell was asked questions about a hypothetical
person of Plaintiff’s age, education, and work experience who
could perform at the light exertional level but who could not
climb ladders, ropes, or scaffolds and could occasionally stoop
In addition, the person was limited to frequent
handling and fingering with the right upper extremity.
said that such a person could work as a hair stylist.
the person to sedentary work would eliminate that job, but the
person could still work as a bench worker or a general sorter.
Mr. Bell was then asked if there would be jobs available to
Plaintiff if she were as limited as she described in her
testimony, including the fact that she would be off task for 30%
of the day and would average four absences from work each month.
He said such a person could not do routine work at any exertional
The limitations contained in the reports from Dr. Vawter
and from Plaintiff’s social worker, Carol Al-Din, also were workpreclusive.
Finally, in response to questions from Plaintiff’s counsel,
Mr. Bell testified that someone who could use the upper
extremities on only an occasional basis could not work as a hair
stylist or do any of the other jobs he identified.
one foot elevated for an hour per day would eliminate even
The Administrative Law Judge’s Decision
The Administrative Law Judge’s decision appears at pages 1326 of the administrative record.
The important findings in that
decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
met the insured status requirements of the Social Security Act
through December 31, 2015.
Second, he found that Plaintiff had
not engaged in substantial gainful activity since her alleged
Going to the next step of the sequential evaluation
process, the ALJ concluded that Plaintiff had severe impairments
including mild to moderate degenerative disc disease of the
cervical spine from C4-C6; disc herniations at T7-T8 and T-10-T11
without significant spinal stenosis or cord signal abnormality;
degenerative disc disease at L4-L5; diagnosis of osteoarthritis
of multiple sites/fibromyalgia; Morton’s neuroma of the right
foot; and bilateral carpal tunnel syndrome status post left-sided
release in December 2011.
The ALJ also found that these
impairments did not, at any time, meet or equal the requirements
of any section of the Listing of Impairments (20 C.F.R. Part 404,
Subpart P, Appendix 1).
Moving to the next step of the sequential evaluation
process, the ALJ found that Plaintiff could work at the sedentary
exertional level, could occasionally stoop and crawl, and could
not climb ladders, ropes, or scaffolds.
Also, she was limited to
frequent fingering and handling with the right upper extremity.
With these restrictions, the ALJ concluded that Plaintiff,
could not do her past relevant work, but she could work as a
bench worker or a general sorter.
He also found that those jobs
existed in significant numbers in the regional economy (1,650
positions) and the national economy (174,500 positions).
Consequently, the ALJ decided that Plaintiff was not entitled to
Plaintiff’s Statement of Errors
In her statement of errors, Plaintiff raises these issues:
(1) the ALJ failed to give controlling weight to the treating
source opinions; (2) the ALJ did not take Plaintiff’s
fibromyalgia into account in making his residual functional
capacity finding; (3) The ALJ did not weigh adequately the nonmedical source evidence; and (4) the ALJ’s credibility finding
was not supported by the record.
These issues are considered
under the following legal 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
Richardson v. Perales, 402
adequate to support a conclusion'"
U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229 (1938)).
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.
In determining whether the Commissioner's decision is
supported by substantial evidence, the Court must "'take into
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).
The Treating Source Opinion
Plaintiff argues, first, that the ALJ should have given
controlling weight to the opinion expressed by Dr. Vawter.
asserts that his opinion was well-supported and should have been
given either controlling weight or substantial deference.
Instead, the ALJ afforded it no weight at all.
the reasons given by the ALJ do not support that evaluation.
It has long been the law in social security disability cases
that a treating physician's opinion is entitled to weight
substantially greater than that of a nonexamining medical
advisor or a physician who saw plaintiff only once.
§404.1527(c); see also Lashley v. Secretary of H.H.S., 708 F.2d
1048, 1054 (6th Cir. 1983); Estes v. Harris, 512 F.Supp. 1106,
1113 (S.D. Ohio 1981).
However, in evaluating a treating
physician’s opinion, the Commissioner may consider the extent to
which that physician’s own objective findings support or
contradict that opinion.
Moon v. Sullivan, 923 F.2d 1175 (6th
Cir. 1990); Loy v. Secretary of HHS, 901 F.2d 1306 (6th Cir.
The Commissioner may also evaluate other objective
medical evidence, including the results of tests or examinations
performed by non-treating medical sources, and may consider the
claimant’s activities of daily living.
HHS, 25 F.3d 284 (6th Cir. 1994).
Cutlip v. Secretary of
No matter how the issue of the
weight to be given to a treating physician’s opinion is finally
resolved, the ALJ is required to provide a reasoned explanation
so that both the claimant and a reviewing Court can determine why
the opinion was rejected (if it was) and whether the ALJ
considered only appropriate factors in making that decision.
Wilson v. Comm’r of Social Security, 378 F.3d 541, 544 (6th Cir.
As always, it is helpful to begin the analysis of this issue
by examining the ALJ’s decision in some detail.
discussing Dr. Vawter’s opinion, the ALJ reviewed his treatment
records, noting that the physical examinations he performed
showed very little tenderness and that he diagnosed
osteoarthritis without the benefit of any objective evidence to
confirm that diagnosis.
Then, after giving only
little weight to the opinions of the state agency reviewers (both
of whom said that Plaintiff could do light work) because they
were rendered prior to additional medical records becoming
available, based on Plaintiff’s testimony, and in order to give
Plaintiff the benefit of the doubt, the ALJ turned to the form
completed by Dr. Vawter.
The ALJ supplied six different reasons for giving the
opinions expressed on that form no weight.
They are: (1) the
form is a checklist and provided no objectively-based explanation
for the limitations expressed on it; (2) Dr. Vawter did not
confirm the presence of osteoarthritis by any objective testing;
(3) Dr. Vawter’s treatment notes, indicating that Plaintiff’s
condition was stable, are inconsistent with this evaluation; (4)
the opinion conflicts with the notes of “the claimant’s primary
care provider” (presumably Dr. Wayt) whose notes “reveal normal
objective findings from a musculoskeletal and neurological
standpoint” and who did not believe that Plaintiff was disabled;
(5) Plaintiff’s activities of daily living are in excess of the
capabilities stated on the form; and (6) the assertion that
Plaintiff would miss more than three days of work per month is
“based upon pure speculation and conjecture.”
Plaintiff takes issue with this line of reasoning,
contending that Dr. Vawter did support his opinions with
citations to the records; that his own treatment notes say not
only that Plaintiff’s condition was stable, but that she was
experiencing pain, discomfort, depression, and anxiety; that his
status as a specialist distinguishes his opinion from that of Dr.
Wayt, who is not; that Plaintiff’s daily activities are not
necessarily consistent with working full-time; and that the ALJ
did not factor in the length and nature of the treating
In response, the Commissioner asserts that the ALJ
articulated sufficiently good reasons to justify his decision to
discount Dr. Vawter’s opinion.
Here, the ALJ crafted a residual functional capacity finding
which fell somewhere in between that expressed in the opinions of
the state agency reviewers and that expressed by Dr. Vawter.
that extent, even though the ALJ said that he gave no weight to
Dr. Vawter’s opinion, he still credited some of Dr. Vawter’s
medical findings in deciding that Plaintiff was limited to a
range of sedentary work.
Further, although the ALJ may not have
been entirely accurate when he said that Dr. Vawter cited no
findings in support of his opinion, he correctly noted that there
was no objective evidence of osteoarthritis of multiple joints,
which diagnosis appeared to play a large part in Dr. Vawter’s
Further, the examination notes of both Dr. Vawter and
Dr. Wayt show that Plaintiff’s condition was basically normal,
with normal muscle strength and range of motion.
Dr. Wayt did,
as the ALJ noted, express his opinion on several occasions that
Plaintiff was not disabled, and the ALJ is also correct that
Plaintiff’s own description of her activities of daily living,
while not necessarily supporting a finding that she could work on
a full-time basis, show that she was capable of a greater range
of activities than Dr. Vawter’s opinion indicated.
factors, taken together, indicate that reasonable minds could
differ about how much weight should be given to Dr. Vawter’s
opinion, which, while it may have some support in the record,
cannot be said to be consistent with the entire record - which is
the other part of the legal standard which governs when a
treating source opinion is to be given controlling weight.
20 C.F.R. §404.1527(c).
The ALJ acted within his “zone of
choice” on this issue given the conflicting evidence, and that
precludes a reviewing court from reversing the ALJ’s finding.
See, e.g., Buxton v. Halter, 246 F.3d 762, 773 (6th Cir.
2001)(“there is a ‘zone of choice’ within which the Commissioner
can act, without the fear of court interference”).
Plaintiff’s second argument is that the ALJ erred by not
adequately incorporating limitations arising from her
fibromyalgia into the physical residual functional capacity
She concedes that the ALJ cited the appropriate Social
Security Ruling (SSR 12-2p) used in evaluating fibromyalgia, but
contends that some of the criteria in this Ruling are outdated,
and argues that the severity of this impairment should have been
determined using the more recent criteria developed by the
American College of Rheumatology.
It appears that Plaintiff is arguing that the ALJ made an
error of law when applying SSR 12-2p.
That Ruling states that
the ALJ “will find” that a person has fibromyalgia if (1) there
is a diagnosis of that condition by a qualified physician - which
there was here; (2) the diagnosis is not inconsistent with other
evidence in the record; and (3) the claimant satisfies the
requirements set out either in the American College of
Rheumatology’s 1990 Criteria for the Classification of
Fibromyalgia (which are reiterated in Section II(A) of the
Ruling) or the 2010 Preliminary Diagnostic Criteria, which are
incorporated into Section II(B) of the Ruling.
Here, the ALJ did find, at step two of the sequential
evaluation process, that Plaintiff’s “osteoarthritis of multiple
sites/fibromyalgia” was a severe impairment (Tr. 15), which is
the issue specifically addressed by SSR 12-2p, but, somewhat
inconsistently, also concluded that “the objective requirements
needed to establish this impairment are not contained in the
The ALJ then cited to both sets of
criteria found in SSR 12-2p, concluded that those requirements
were not met, and then said that, despite this finding, “the
claimant’s pain symptoms stemming from her fibromyalgia,
musculoskeletal, and/or neurological issues have been taken into
account when determining [her] residual functional capacity ....”
It is not clear exactly what issue Plaintiff has raised
The ALJ did, contrary to Plaintiff’s argument, cite and
discuss not only the earlier criteria from the American College
of Rheumatology but the later ones as well.
She may be arguing
that despite using the correct criteria, the ALJ erred by not
finding fibromyalgia to be a severe impairment here.
If that is
her argument, any such error in this case was harmless.
failure of an ALJ to find that any particular impairment is
severe can be cured by taking any limitations caused by that
impairment into account when a residual functional capacity
finding is made.
As this Court said in Angelo v. Comm'r of
Social Security, 2013 WL 765646, *6 (S.D. Ohio Feb. 28, 2013),
adopted and affirmed 2013 WL 1344841 (S.D. Ohio Apr. 2, 2013), if
“the ALJ considered all of plaintiff’s impairments (both severe
and non-severe) in determining plaintiff's RFC, any alleged
failure to characterize certain impairments as ‘severe’ at step
two of the sequential evaluation is legally irrelevant and
constitutes harmless error.”
See also Maziarz v. Secretary of
Health & Human Services, 837 F.2d 240, 244 (6th Cir. 1987).
ALJ did so here, and this Court has already determined that his
evaluation of the opinions rendered by Dr. Vawter, who treated
Plaintiff for fibromyalgia, was not erroneous.
there is no merit in Plaintiff’s second claim of error.
The Non-Medical Source Evidence
The third error which Plaintiff alleges relates to the ALJ’s
evaluation of evidence from nine different lay witnesses, all of
whom commented on how Plaintiff’s physical pain affected her dayto-day activities.
The ALJ cited to SSR 06-03p in evaluating
this evidence and said that he considered it, but determined that
more weight should be given to the medical evidence and credible
opinion evidence which, in his view, tended to “discredit the
severity of the limitations as set forth in the narratives
submitted by the claimant’s friends and family.”
also commented that the narratives were “not all that applicable
to how [Plaintiff] would function in a work environment.”
Plaintiff faults this analysis as deviating from the standards
set forth in both SSR 06-03p and SSR 16-3p and as failing to
provide any real explanation about why so little weight was
assigned to this evidence.
The Commissioner argues, in response,
that Plaintiff is simply attempting to get this Court to reweigh
the evidence, and that such reweighing is clearly beyond the
scope of permissible judicial review.
SSR 16-3p, one of the two Rulings cited by Plaintiff, was
not in effect at the time the ALJ made his decision, so it is
difficult to see how any alleged failure to follow that Ruling
could be error.
That Ruling was intended to clarify Ruling 96-
7p, however, which was in effect when the ALJ decided this case,
and which also authorized an ALJ to consider “other relevant
evidence” including statements from non-medical sources in
determining the extent to which a claimant suffered from
debilitating symptoms caused by medically determinable
SSR 06-03p, which the ALJ did cite, says that an
ALJ can consider evidence from “other sources” including
“[s]pouses, parents and other caregivers, siblings, other
relatives, friends, neighbors, clergy, and employers” in
determining the severity of any impairment.
The Ruling does not
mandate any particular procedure, but states that “it would be
appropriate to consider such factors as the nature and extent of
the relationship, whether the evidence is consistent with other
evidence, and any other factors that tend to support or refute
The ALJ complied with SSR 06-03p by acknowledging the “other
evidence” presented, citing the relevant factors from the Ruling,
and explaining that he was giving more weight to the medical
No further explanation of his reasoning
process was required.
See, e.g., Kelly v. Comm’r of Social
Security, 2016 WL 8115402, *10 (E.D. Mich. July 22, 2016),
adopted and affirmed 2016 WL 4868532, (E.D. Mich. Sept. 15,
2016)(holding that although an ALJ must consider statements like
these, they are not statements “to which the ALJ was required to
explicitly assign weight”).
The Commissioner is correct that if
the Court were to go beyond determining whether the ALJ complied
with the applicable regulations by considering this evidence, and
would second-guess the weight assigned to it, the Court would be
usurping the function of the Commissioner in weighing the
Consequently, the Court finds no merit in this third
claim of error.
The Credibility Finding
Lastly, Plaintiff contends that the ALJ erred when he did
not find her testimony of disabling symptoms to be fully
In support of this assertion, she argues - again
citing to SSR 16-3p - that the reasons given for discounting her
testimony, including the fact that she supposedly engages in a
“wide array” of activities of daily living - are insufficient and
represented an impermissibly selective reading of the record.
It is also the law that a social security ALJ is not
permitted to reject allegations of disabling symptoms, including
pain, solely because objective medical evidence is lacking.
Rather, the ALJ 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).
Although the ALJ is given wide latitude to make determinations
about a claimant’s credibility, the ALJ is still required to
provide an explanation of the reasons why a claimant is not
considered to be entirely credible, and the Court may overturn
the ALJ’s credibility determination if the reasons given do not
have substantial support in the record.
See, e.g. Felisky v.
Bowen, 35 F.3d 1027 (6th Cir. 1994).
Here, the ALJ provided not just one, but multiple, reasons
for discounting Plaintiff’s testimony.
They included “the degree
of medical treatment required, discrepancies between the
claimant’s assertions and information contained in the
documentary reports, the medical history, the findings made on
examination, the claimant’s assertions concerning her ability to
work, and the reports of the reviewing, treating, and examining
Her ability to perform a “wide array of
activities of daily living” was only one factor in this analysis,
The ALJ was also entitled to, and did, consider the
objective medical evidence showing relatively mild disease of the
spine without significant spinal or foraminal stenosis and the
lack of clinical evidence of advanced arthritis or soft tissue
Nevertheless, the ALJ did credit her
testimony to the extent that he limited her to sedentary work
The Court concludes that the credibility analysis was
sufficient and supported by evidence in the record and that,
again, the ALJ made a decision which was within his “zone of
That being so, the credibility finding presents no
basis for reversal or remand.
Based on the above discussion, it is recommended that the
Plaintiff’s statement of errors be overruled and that judgment be
entered in favor of the Commissioner.
Procedure on Objections
If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection
is made, together with supporting authority for the objection(s).
A judge of this Court shall make a de novo determination of those
of the report or specified proposed findings or
recommendations to which objection is made.
objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.
28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation.
See Thomas v.
Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge
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