Coffey v. Social Security Administration, Commissioner of

Filing 22

MEMORANDUM AND ORDER. Plaintiffs motion for judgment on the pleadings shall be DENIED; the Commissioners motion for summary judgment shall be GRANTED; and the decision of the Commissioner shall be AFFIRMED. Signed by Magistrate Judge Susan K Lee on 8/15/2017. (AML, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA

LESLIE D. COFFEY

)
)
Plaintiff,
)
)
v.
)
)
COMMISSIONER OF SOCIAL SECURITY, )
)
Defendant.
)

No. 1:16-cv-222-SKL

MEMORANDUM AND ORDER
Plaintiff Leslie D. Coffey (“Plaintiff”) brought this action pursuant to 42 U.S.C. §§
405(g) seeking judicial review of the final decision of the Commissioner of Social Security
(“Commissioner” or “Defendant”) denying his disability insurance benefits (“DIB”). Each party
moved for a judgment [Docs. 16 & 18] with supporting briefs [Docs. 17 & 19]. This matter is
now ripe. For the reasons stated below, (1) Plaintiff’s motion for judgment on the pleadings
shall be DENIED; (2) the Commissioner’s motion for summary judgment shall be GRANTED;
and (3) the decision of the Commissioner shall be AFFIRMED.
I.

ADMINISTRATIVE PROCEEDINGS
As agreed by the parties, and as reflected in the transcript of the administrative

proceedings [Doc. 12 (“Tr.”)], Plaintiff filed for DIB on October 23, 2012, alleging disability
beginning August 1, 2012.

After Plaintiff’s claims were denied initially and upon

reconsideration, a hearing on Plaintiff’s claims was held before an administrative law judge
(“ALJ”) during which Plaintiff was represented by counsel. The ALJ issued a decision on March
13, 2015, finding that Plaintiff was not under a “disability” as defined in the Social Security Act

(“Act”) (Tr. 10-23). The Appeals Council denied Plaintiff’s request for review, making the
ALJ’s decision the final decision of the Commissioner. Plaintiff timely filed the instant action.
II.

FACTUAL BACKGROUND
A.

Education and Employment Background

As documented in the ALJ’s decision, Plaintiff was born September 16, 1967 and on the
date last insured was 47-years-old, which is defined as a younger individual age 18-49; had a
work history that included work as a demolition crane truck operator; had at least a high school
education; and was able to communicate in English (Tr. 22).
B.

Medical Records

Plaintiff alleged disability due to a fractured back, ruptured discs, depression, bipolar
disorder, post-traumatic stress disorder, asthma, and acid reflux (Tr. 32, 171).

The ALJ

summarized various medical records at issue, and both parties summarized portions of the
medical records in their respective briefs. The summary of the records will not be repeated
herein, but all germane records concerning the physical limitations at issue in this case have been
reviewed.
C.

Hearing Testimony

At the January 15, 2015 hearing before the ALJ, Plaintiff and a vocational expert (“VE”)
testified. The transcript of the testimony at the hearing (Tr. 29-48) has been carefully reviewed.
III.

ELIGIBILITY AND THE ALJ’S FINDINGS
A.

Eligibility

“The Social Security Act defines a disability as the ‘inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous

2

period of not less than 12 months.’” Schmiedebusch v. Comm’r of Soc. Sec., 536 F. App’x 637,
646 (6th Cir. 2013) (quoting 42 U.S.C. § 423(d)(1)(A)); see also Parks v. Soc. Sec. Admin., 413
F. App’x 856, 862 (6th Cir. 2011) (quoting 42 U.S.C. § 423(d)(1)(A)). A claimant is disabled
“only if his physical or mental impairment or impairments are of such severity that he is not only
unable to do his previous work, but cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which exists in the national economy.”
Parks, 413 F. App’x at 862 (quoting 42 U.S.C. § 423(d)(2)(A)).

The Social Security

Administration (“SSA”) determines eligibility for disability benefits by following a five-step
process. 20 C.F.R. § 404.1520(a)(4)(i-v). The five-step process provides:
1) If the claimant is doing substantial gainful activity, the claimant is
not disabled.
2) If the claimant does not have a severe medically determinable
physical or mental impairment—i.e., an impairment that
significantly limits his or her physical or mental ability to do basic
work activities—the claimant is not disabled.
3) If the claimant has a severe impairment(s) that meets or equals one
of the listings in Appendix 1 to Subpart P of the regulations and
meets the duration requirement, the claimant is disabled.
4) If the claimant’s impairment does not prevent him or her from
doing his or her past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant
is not disabled.
Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009). The claimant bears the
burden to show the extent of his impairments, but at step five, the Commissioner bears the
burden to show that, notwithstanding those impairments, there are jobs the claimant is capable of
performing. See Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512-13 (6th Cir. 2010).

3

B.

The ALJ’s Findings

The ALJ found Plaintiff met the insured status requirements through December 31, 2014
(Tr. 15). At step one of the process, the ALJ found Plaintiff had not engaged in any substantial
gainful activity since August 1, 2012, the alleged onset date (Tr. 15). At step two, the ALJ found
Plaintiff had the following severe impairments: degenerative disc disease with a history of
compression fracture of the lumbar spine, obesity, depression, bipolar disorder, and posttraumatic stress disorder (Tr. 15-16). At step three, the ALJ found Plaintiff did not have any
impairment or combination of impairments to meet or medically equal any presumptively
disabling impairments listed at 20 C.F.R. Pt. 404, Subpt. P, App’x 1 (Tr. 16-19). The ALJ
determined Plaintiff had the residual functional capacity (“RFC”) to perform light work with
additional limitations (Tr. 19-22)1. At step four, the ALJ found that Plaintiff was unable to
perform any past relevant work (Tr. 22).

At step five, after considering Plaintiff’s age,

education, work experience, and RFC, and after utilizing the Medical-Vocational Guidelines, 20
C.F.R. Pt. 404, Subpt. P, App’x 2 as a framework for the decision and considering the testimony
of the VE, the ALJ found there were jobs that existed in significant numbers in the national
economy that Plaintiff could perform (Tr. 22-23). These findings led to the ALJ’s determination
that Plaintiff was not under a disability as defined by the Act at any time from the alleged onset
date through the date of the ALJ’s decision (Tr. 23).
1

The ALJ determined that Plaintiff retained the RFC “to perform light work as defined in 20
CFR 404.1567(b) except: he can climb no ropes, ladders, or scaffolds; he can occasionally
balance, stoop, kneel, crouch, and crawl; he can have no exposure to extreme cold, vibration, or
hazards such as unprotected heights, moving machinery, or open flames; he is able to perform
work where interpersonal contact is incidental to the work performed, incidental is defined as
interpersonal contact requiring a limited degree of interaction such as meeting and greeting the
public, answering simple questions, accepting payment and making change; he can perform work
where the complexity of tasks can be learned by demonstration or repetition within 30 days, with
few variables, little judgment; and he is limited to work where supervision required is simple,
direct, and concrete.” (Tr. 19) (bold font in original omitted).
4

IV.

ANALYSIS
The relevant time period for consideration in this case is from August 1, 2012 (the date

Plaintiff alleges he became disabled) through December 31, 2014 (the date his insured status
expired). Plaintiff maintains that substantial evidence does not support the ALJ’s decision to
discount the opinions of two of his treating doctors: (1) orthopedic spine specialist, Scott
Hodges, D.O., and (2) internal medicine specialist, Gordon Akin, M.D.
A.

Standard of Review

A court must affirm the Commissioner’s decision unless it rests on an incorrect legal
standard or is unsupported by substantial evidence. 42 U.S.C. § 405(g); McClanahan v. Comm’r
of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (internal citations omitted). Substantial evidence
is “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”

McClanahan, 474 F.3d at 833 (internal citations omitted).

Furthermore, the

evidence must be “substantial” in light of the record as a whole, “tak[ing] into account whatever
in the record fairly detracts from its weight.” Garner v. Heckler, 745 F.2d 383, 388 (6th Cir.
1984) (internal citations omitted). If there is substantial evidence to support the Commissioner’s
findings, they should be affirmed, even if the court might have decided facts differently, or if
substantial evidence would also have supported other findings. Smith v. Chater, 99 F.3d 780,
782 (6th Cir. 1996); Ross v. Richardson, 440 F.2d 690, 691 (6th Cir. 1971). The court may not
re-weigh evidence, resolve conflicts in evidence, or decide questions of credibility. Garner, 745
F.2d at 387. The substantial evidence standard allows considerable latitude to administrative
decision makers because it presupposes “there is a ‘zone of choice’ within which the
Commissioner can act, without the fear of court interference.” McClanahan, 474 F.3d at 833
(quoting Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001)).

5

The court may consider any evidence in the record, regardless of whether it has been
cited by the ALJ. Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The court
may not, however, consider any evidence which was not before the ALJ for purposes of
substantial evidence review. Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Furthermore,
the court is under no obligation to scour the record for errors not identified by the claimant,
Howington v. Astrue, No. 2:08-CV-189, 2009 WL 2579620, at *6 (E.D. Tenn. Aug. 18, 2009)
(stating that assignments of error not made by claimant were waived), and arguments not raised
and supported in more than a perfunctory manner may be deemed waived, Woods v. Comm’r of
Soc. Sec., No. 1:08-CV-651, 2009 WL 3153153, at *7 (W.D. Mich. Sept. 29, 2009) (citing
McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997)) (noting that conclusory claims of
error without further argument or authority may be considered waived).
An ALJ is responsible for determining a claimant’s RFC after reviewing all of the
relevant evidence in the record.2 Rudd v. Comm’r of Soc. Sec., 531 F. App’x 719, 728 (6th Cir.
2013). The ALJ is “tasked with interpreting medical opinions in light of the totality of the
evidence.” Griffith v. Comm’r of Soc. Sec., 582 F. App’x 555, 564 (6th Cir. 2014) (citing 20
C.F.R. § 416.927(b)). The ALJ must determine which medical findings and opinions to credit
and which to reject. See Justice v. Comm’r of Soc. Sec., 515 F. App’x 583, 588 (6th Cir. 2013);
Schmidt v. Astrue, 496 F.3d 833, 845 (7th Cir. 2007) (In determining a claimant’s RFC, “the ALJ

2

A claimant’s RFC is the most the claimant can do despite his or her impairments. 20 C.F.R. §§
404.1545(a)(1), 416.945(a)(1). In other words, the RFC describes “the claimant’s residual
abilities or what a claimant can do, not what maladies a claimant suffers from—though the
maladies will certainly inform the ALJ’s conclusion about the claimant’s abilities.” Howard v.
Comm’r of Soc. Sec., 276 F.3d 235, 240 (6th Cir. 2002). Moreover, “[a] claimant’s severe
impairment may or may not affect his or her functional capacity to do work. One does not
necessarily establish the other.” Griffeth v. Comm’r of Soc. Sec., 217 F. App’x 425, 429 (6th Cir.
2007) (quoting Yang v. Comm’r of Soc. Sec., No. 00–10446–BC, 2004 WL 1765480, at *5
(E.D.Mich. July 14, 2004) (internal quotation marks omitted).
6

is not required to rely entirely on a particular physician’s opinion or choose between the opinions
of any of the claimant’s physicians.”). A court will not disturb an ALJ’s RFC determination as
long as the finding is supported by substantial evidence. See Jones v. Comm’r of Soc. Sec., 336
F.3d 469, 477 (6th Cir. 2003).
B.

Treating Source Opinions

In addressing the medical source opinions concerning Plaintiff’s physical limitations at
issue herein, the ALJ found:
In terms of the claimant’s physical abilities, the undersigned
accords great weight to opinions of Marvin Bittinger, M.D., who
opined that the evidence showed exertional and postural limitations
consistent with the administrative findings the undersigned now
makes, when he reviewed the claim record on April 4, 2013. Saul
Juliau, M.D., another such consultant, agreed with this assessment
on August 21, 2013. Again, the undersigned assigns weight to
these opinions in light of their consistency with the evidence, and
the expertise of these sources. The undersigned accords only
limited weight to the opinion of Dr. Mullady, who examined the
claimant only once, then opined he had limitations consistent with
a full range of light work, except that he could stand and walk at
most two hours in a work day. This opinion notably conflicts with
Dr. Mullady’s report at the same time that the claimant had normal
balance and gait, and walked without an assistive device; and in
any event this opinion was offered only five months after the
claimant’s allegedly-disabling fall.
The undersigned grants little weight to the opinion of Dr. Vaughn
that the claimant was not fully rehabilitated and could use more
physical therapy, only in that it has no direct bearing on the workrelated activities he could [] then perform despite the advisability
of additional treatment. The undersigned accords little weight as
well to the opinions of Scott Hodges, D.O., dated May 3, 2013, and
Gordon Akin, M.D., dated December 11, 2014. Dr. Hodges
indicated that the claimant could sit for at most two hours a day,
which is inconsistent both with the level of pain medications he
reports taking, and with his apparent ability to sit comfortably
during the disability hearing. The record does not reflect he
provided as much medical care to the claimant as Dr. Vaughn,
whose findings only three months later indicate far less limitation,
including normal gait and strength. Similarly, the record does not
7

show that Dr. Akin treated the claimant until recently in 2014,
even though his opinion states that the claimant had a range of
extreme and disabling limitations since August 1, 2014. This range
of limitations that would be solely disabling include, but are not
limited to, never being able to stoop, knee[l], crouch or crawl. Yet,
the repeated range of motion findings mentioned above find the
claimant to have always retained some significant range of motion
in his lumbar spine, for instance 45 degrees of flexion when seen
by Dr. Mullady in January 2013, and 50 degrees of flexion with
negative results on the straight leg raise test when seen by Dr.
Vaughn in August of that year. These test results are inconsistent
with postural activities being totally precluded, and there are no
more dire range of motion findings in the treatment reports of Dr.
Akin.
(Tr. 21) (citations to exhibits omitted).
As pertinent to the pending motions, Plaintiff initially sought treatment after a fall at
work with a physician and physical therapist in Wisconsin for complaints of low back pain,
bilateral lower extremity pain, and numbness and tingling in the right lower extremity. After
Plaintiff returned to Chattanooga, Tennessee, he sought treatment from Dr. Hodges (Tr. 320-64).
Records show that Plaintiff was seen by both Dr. Hodges and his physician’s assistant several
times (Tr. 320-55, 358-64).
On August 15, 2012, a lumbar MRI—ordered by Dr. Hodges— revealed a compression
fracture at the L3 level and a left paracentral disc protrusion at the L4-5 level compressing the
left L5 nerve root origin (Tr. 249-50). At a follow-up visit with Dr. Hodges on August 21, 2012,
Plaintiff reported continued low back pain that was intensified by any action except lying down
(Tr. 351).

Dr. Hodges recommended continued bracing, prescribed pain medications, and

created a work note to excuse Plaintiff from work until November (Tr. 352). On September 18,
2012, Plaintiff again saw Dr. Hodges and reported no improvement (Tr. 348). Dr. Hodges
recommended continued medications, a referral for a lumbar epidural steroid injection, and that
Plaintiff remain off work for another six to eight weeks (Tr. 349).
8

On October 15, 2012, Plaintiff was seen by Dr. Hodges’s physician’s assistant and
reported he felt worse since his last visit (Tr. 345). Plaintiff underwent an injection the same
day, was told to continue his medication and remain off work until his next appointment in four
weeks (Tr. 346). Plaintiff was seen by Dr. Hodges on November 13, 2012, and reported his prior
injection was of no help (Tr. 342). Plaintiff reported continued pain, numbness, tingling, and
weakness, and Dr. Hodges ordered updated lumbar x-rays, which showed an L3 superior
endplate fracture and retrolisthesis of 3 mm on flexion/extension (Tr. 342-43). Dr. Hodges
recommended Plaintiff remain off work until his next visit and continue a medication regimen
consisting of Endocet, Ambien, Neurontin, and Baclofen (Tr. 343). On January 10, 2013,
Plaintiff again returned to Dr. Hodges reporting no overall improvement (Tr. 339). Dr. Hodges
created a work note excusing Plaintiff from work until his next appointment in three weeks and
recommended no lifting, pushing, or pulling in the interim, and that Plaintiff continue a
medication regimen of Endocet, Ambien, Baclofen, and Neurontin (Tr. 340).
At a follow-up appointment on March 7, 2013, Plaintiff reported that his constant pain
felt worse since his last visit but that he was not taking his pain medications (Tr. 334). Dr.
Hodges instructed Plaintiff to continue his medication regimen and to remain off work with
restricted daily activity until his next appointment with restricted activity (Tr. 335). Plaintiff
returned on April 23, 2013, was seen by the physician’s assistant, and reported continued low
back pain with bilateral lower extremity pain and right lower extremity numbness/tingling (Tr.
331). Plaintiff was again instructed to remain off work with restricted daily activity until his
next appointment (Tr. 332).
On May 3, 2013, Dr. Hodges completed a “Medical Opinion Form” (Tr. 311-13) opining
that, due to severe pain, Plaintiff could not reasonably be expected to be reliable in attending an

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eight-hour day, forty-hour work week. Dr. Hodges stated it was reasonable to expect that
Plaintiff’s condition would cause pain and that Plaintiff’s subjective complaints of pain seemed
reasonable. Dr. Hodges stated that Plaintiff required two hours of bed rest during a normal
workday. Dr. Hodges further opined that in an eight-hour workday, five days a week, on a full
time basis, Plaintiff could only sit for thirty minutes at one time for two hours total, stand/walk
for twenty minutes at one time for a total of one hour, occasionally lift one to five pounds,
infrequently lift one to ten pounds, occasionally bend at the waist, occasionally reach above his
shoulders, and infrequently stand on a hard surface. Dr. Hodges also opined that Plaintiff had a
reasonable medical need to be absent from a full-time work schedule due to illness in excess of
twice per month. Dr. Hodges also noted that Plaintiff did not have significant side effects from
medication
On July 9, 2013, Plaintiff returned to Dr. Hodges’s physician’s assistant and reported
similar complaints as made in his prior visits and that he felt his condition had moderately
worsened since his last visit (Tr. 328).
On August 20, 2013, Plaintiff was seen by orthopedic spine specialist, Barry R. Vaughn,
M.D. in Chattanooga, Tennessee (Tr. 317-19). During this one-time visit, Plaintiff reported
constant low back pain with lower extremity radiation, numbness, and tingling and Dr. Vaughn
noted evidence of bilateral lower extremity edema, decreased lumbar flexion, and moderate
tenderness to palpation to the right and left flank. Plaintiff had normal pulses; normal, nontender muscles; full and normal strength in all of his muscles; normal gait and coordination; and
no swelling or tenderness over his spine. Plaintiff had a negative straight leg raising test.
Concerning Plaintiff’s lumbar fracture, Dr. Vaughn noted Plaintiff had never received physical
therapy after his brace was discontinued and opined he never completely rehabilitated from his

10

work injury and would benefit from physical therapy. Dr. Vaughn also opined Plaintiff could
not return to his previous work activity without appropriate rehabilitation (Tr. 319). Regarding
the L4-5 disc protrusion, Dr. Vaughn opined Plaintiff “might be a candidate for surgery since his
symptoms have not resolved with conservative treatment” and that since he had not completed
treatment “it would be impossible for the Plaintiff to return to his previous level of employment
until [the disc protrusion] was addressed” (Tr. 319).
On October 1, 2013, Plaintiff returned to Dr. Hodges’s physician’s assistant and reported
that he had been involved in a motor vehicle accident two weeks prior and felt worse since his
last visit (Tr. 325). Plaintiff was instructed to continue with restricted activity and return in two
to three weeks (Tr. 326). Instead, Plaintiff returned to see Dr. Hodges more than three months
later, on January 21, 2014, and reported intensified pain with activity, diminished pain with lying
down, and no improvement since his prior visit (Tr. 320). Dr. Hodges wrote prescriptions for
Plaintiff to continue his medication regimen of Neurontin, Baclofen, and Dilaudid, and also
wrote another work note for Plaintiff to remain off work until his next appointment (Tr. 321).
As instructed, Plaintiff returned on April 17, 2014, and he reported to Dr. Hodges’s
physician’s assistant that he had constant pain intensified by activity and diminished with rest
(Tr. 362). Plaintiff’s prescriptions for Neurontin, Baclofen, and Dilaudid were refilled and
another work note was issued for Plaintiff to remain off work until his next visit (Tr. 363).
Plaintiff returned for his last visit with Dr. Hodges’s physician’s assistant on July 31, 2014 to
follow up on his MRI for the lumbar spine (Tr. 358). Plaintiff again reported similar symptoms
of low back pain, right lower extremity pain, numbness, tingling, and weakness (Tr. 358).
Plaintiff’s most recent MRI from on July 15, 2014 showed evidence of an old compression
fracture of L3, a posterior disc protrusion at L4-5 with an annular tear with associated moderate

11

neural foraminal narrowing, transitional vertebra at the lumbosacral junction partially sacralized
on the left side of L5, and right renal cysts/masses (Tr. 359, 380-381).

It was again

recommended that Plaintiff remain off work until his next appointment and continue taking his
medications (Tr. 360).
Plaintiff relocated to Arizona and he began treatment with Dr. Akin (Tr. 371).3 On
September 30, 2014, Plaintiff reported feeling miserable due to his pain, and that he had to
frequently change positions throughout the day with only a reasonable degree of comfort when
reclining (Tr. 368). At Plaintiff’s next appointment on November 13, 2014, Plaintiff reported
doing about the same (Tr. 369).
On December 11, 2014, Dr. Akin completed a medical source statement (Tr. 374-79)
opining that in a hypothetical eight-hour workday, Plaintiff could only sit 20 minutes at one time
for two hours total, stand 20 minutes at one time for two hours total, walk 15 minutes at one time
for one hour total, and would have to lie down/rest the remainder of the workday. Dr. Akin also
stated that Plaintiff could never lift up to ten pounds; could occasionally reach overhead
bilaterally; Plaintiff could occasionally push/pull with his bilateral upper extremities; could
occasionally use his bilateral lower extremities for the operation of foot controls; could
occasionally balance and climb stairs and ramps; could never climb ladders or scaffolds, stoop,
kneel, crouch, or crawl; could never tolerate exposure to unprotected heights or vibration; could
occasionally tolerate moving mechanical parts and operating a motor vehicle; could never travel
without a companion over 100 miles; and Plaintiff could not walk a block at a reasonable pace
on rough or uneven surfaces. Dr. Akin also opined that Plaintiff’s chronic pain limitations had
lasted 12 consecutive months and had begun August 1, 2012.
3

Dr. Akin ordered the lumbar MRI that was reviewed at Plaintiff’s last appointment at Dr.
Hodges’s office (Tr. 373).
12

As noted above, the ALJ gave “little weight” to the opinions of Dr. Hodges and Dr.
Akins (Tr. 21). In considering a claim for disability, the ALJ generally must give the opinion of
the claimant’s treating physician “controlling weight.” 20 C.F.R. § 404.1527(c)(2). But the ALJ
must do so only if that opinion “is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in
[the] case record.” Id. If the opinions at issue are not given controlling weight, as here, the ALJ
must consider the following factors to determine what weight to give the opinions: “the length of
the treatment relationship and the 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 the specialization of the treating source.” Wilson v. Comm’r of Soc. Sec., 378
F.3d 541, 544 (6th Cir. 2004) (citing 20 C.F.R. § 404.1527(c)(2)).
The ALJ is not required to explain how he considered each of the above factors, but must
nonetheless give “good reasons” for rejecting or discounting a treating physician’s opinion.
Francis v. Comm’r of Soc. Sec., 414 F. App’x 802, 804 (6th Cir. 2011); 20 C.F.R. §
404.1527(c)(2) (the ALJ must “give good reasons in [the] notice of determination or decision for
the weight . . . give[n the] treating source’s opinion.”). “[A] properly balanced analysis might
allow the Commissioner to ultimately defer more to the opinions of consultative doctors than to
those of treating physicians [but] the regulations do not allow the application of greater scrutiny
to a treating-source opinion as a means to justify giving such an opinion little weight.” Gayheart
v. Comm’r of Soc. Sec., 710 F.3d 365, 379-80 (6th Cir. 2013) (citations omitted).
The ALJ stated that little weight was given to the opinion of Dr. Hodges because “Dr.
Hodges indicated that the claimant could sit for at most two hours a day, which is inconsistent
both with the level of pain medications he reports taking, and with his apparent ability to sit

13

comfortably during the disability hearing.” (Tr. 21). In discussing Dr. Hodges’s opinion, the
ALJ also inaccurately stated that Dr. Hodges did not provide as much care to Plaintiff as Dr.
Vaughn did, but accurately stated that Dr. Vaughn found far fewer limitations than Dr. Hodges
(Tr. 21). Plaintiff argues the ALJ’s reasoning for giving Dr. Hodges’s opinion little weight is
underdeveloped and inaccurate. Plaintiff argues the ALJ’s focus on the sitting limitations opined
by Dr. Hodges ignores other aspects of his opinion and that the ALJ’s observations during the
20-minute hearing ignores Plaintiff’s testimony, which indicated he was not sitting comfortably
as follows:
Q

Okay. Any problems with sitting?

A Oh, it’s the worst. I mean, like sitting right here now, it’s - - sitting is by far
the worst. By all things I do, sitting is it. And it’s just - - yeah.
(Tr. 40).
Q Sitting, though, how long can you sit before you need to rest?
A Not long. I’d like to go lay down right now, to be honest with you. I mean,
it’s 10 or 15, 20, 30 minutes tops.
Q

Thirty minutes is your max for sitting at one time?

A Yeah. I mean –
(Tr. 41). Plaintiff also reported during the hearing that he did not take narcotic medication on a
daily basis due to his fear of addiction, but did take prescribed medications for pain, including
Gabapentin and Baclofen, on a daily basis, and Morphine one to two times a week (Tr. 42-44).
I first will address the ALJ’s observation of Plaintiff during the hearing. As argued by
the government, the ALJ is permitted to “consider his or her own recorded observations of the
individual as part of the overall evaluation of the credibility of the individual’s statements.” See

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SSR 96-7p.4; see also, e.g., Blankenship v. Comm’r of Soc. Sec., 624 F. App’x 419, 430 (6th Cir.
2015) (treating doctor’s assertion that claimant was unable to walk from the parking lot to work
was “seemingly contradicted by the fact that Blankenship was able to walk unassisted from her
car to the room where the hearing was being held.”) and SSR 16-3p (ALJ may consider personal
observations of the claimant with the individual’s statement and with the evidence in the file).
The ALJ should consider Plaintiff’s subjective complaints concerning the intensity, persistence,
and limiting effects of his symptoms and this analysis is “inherently intertwined” with the RFC
assessment. See Murphy v. Comm’r of Soc. Sec., No. 1:15-CV-126-SKL, 2016 WL 2901746, at
*10 n.7 (E.D. Tenn. May 18, 2016) (citing Poppa v. Astrue, 569 F.3d 1167, 1171 (10th Cir.
2009) (“Since the purpose of the credibility evaluation is to help the ALJ assess a claimant’s
RFC, the ALJ’s credibility and RFC determinations are inherently intertwined.”)).
Pain symptoms can be difficult to quantify so the determination is often influenced by a
plaintiff’s credibility. See Hickey-Haynes v. Barnhart, 116 F. App’x. 718, 726-27 (6th Cir.
2004) (holding an ALJ may take a plaintiff’s credibility into account when making a
determination regarding the severity of pain complaints). There is no requirement that an ALJ
4

The SSA published SSR 16-3p, Policy Interpretation Ruling Titles II and XVI: Evaluation of
Symptoms in Disability Claims, which supersedes and rescinds SSR 96-7p, Policy Interpretation
Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility
of an Individual’s Statements. SSR 16-3p eliminates use of the term “credibility” from SSA
policy as the SSA’s regulations do not use this term, and it clarifies that subjective symptom
evaluation is not an examination of a claimant’s character. See SSR 16-3p, 2016 WL 1119029,
at *1 (Mar. 16, 2016). SSR 16-3p took effect in March 2016, after the ALJ issued the decision at
issue. Moreover, SSR 16-3p instructs ALJs in accordance with the applicable regulations to
consider all of the evidence in the record in evaluating the intensity and persistence of symptoms
after finding the claimant has a medically determinable impairment, which is exactly what the
ALJ has done in this matter. As such, it is not necessary to determine whether SSR 16-3p
applies retroactively. See Dooley v. Comm’r of Soc. Sec., 656 F. App’x 113, 119, at n.1 (6th Cir.
2016). As the record in this case and much of the existing case law refers to “credibility”
evaluations, the Court will occasionally refer to the ALJ’s analysis using the same term.

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must accept a physician’s or plaintiff’s allegation of a disabling level of pain without critical
review. To the contrary, “[a]lthough the treating physician’s assessment can provide substantial
input into this credibility determination, ultimately, the ALJ must decide . . . if the claimant’s
pain is so severe as to impose limitations rendering [him] disabled.” Dunn v. Comm’r of Soc.
Sec., No. 1:15-CV-176, 2016 WL 4194131, at *7 (S.D. Ohio July 15, 2016), report and
recommendation adopted, 2016 WL 4179586 (S.D. Ohio Aug. 8, 2016) (quotation marks,
alterations and citation omitted).
observations.

Plaintiff’s testimony does not invalidate the ALJ’s

Indeed, Plaintiff has not challenged the ALJ’s determination that Plaintiff’s

statements concerning the intensity, persistence, and limiting effects of his pain symptoms are
not entirely credible.
As argued by the government, a limitation to sitting only two hours per day is an extreme
limitation. In discussing this aspect of Dr. Hodges’s opinion, the ALJ inaccurately stated that
Dr. Hodges did not provide as much care to Plaintiff as Dr. Vaughn did, but accurately stated
that Dr. Vaughn found far fewer limitations than Dr. Hodges (Tr. 21). Plaintiff argues the
inclusion of this mistake requires remand. Plaintiff cites to White v. Comm’r of Soc. Sec., 312 F.
App’x 779, 788 (6th Cir. 2009) (“Because the ALJ does not accurately state the evidence used to
support his finding, his total discounting of the mental impairment is not supported by substantial
evidence.”). White, however, did not address a situation such as here where accurate reasons
were also given for assigning little weight to the treating physician’s opinion. To the contrary, in
White the claimant was diagnosed with an adjustment disorder and depression, and assigned a
GAF score of 55, indicating moderate symptoms, but the ALJ totally discounted the claimant’s
mental impairments in determining the RFC and inaccurately stated the antidepressants were for

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pain relief and sleep without noting the pain and lack of sleep were causing depression. Id. at
787-88.
To the extent the ALJ credited Dr. Vaughn’s opinion over Dr. Hodges’s opinion based on
the mistaken belief that Dr. Vaughn provided more treatment than Dr. Hodges, this cannot be
considered a good reason at all. However, this mistaken remark does not mandate remand
because the ALJ provided other good reasons in support of his determination to give little weight
to the opinion of Dr. Hodges and inclusion of this reason is harmless. As argued by the
government, Dr. Vaughn saw Plaintiff a few months after Dr. Hodges issued his opinion, and Dr.
Vaughn’s examination results dispute the extreme limitations Dr. Hodges described on his form.
Plaintiff contends the ALJ’s analysis of Dr. Hodges’s opinion was overly focused on Dr.
Hodges’s sitting limitation and underdeveloped on the remainder of his opinion because the ALJ
failed to discuss other limitations such as for standing/walking, lifting, and reaching. As argued
by the government, however, the ALJ’s analysis does not have to be all inclusive as long as it is
supported by substantial evidence. Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 651 (6th Cir.
2009) (holding ALJ’s brief one-sentence rejection of treating physician’s opinion satisfied “good
reasons” requirement because it reached several of the factors an ALJ must consider in
addressing such an opinion). Plaintiff cites no requirement that the ALJ discuss each aspect of a
doctor’s opinion before giving it little weight so long as he has a good reason supporting the
weight given. And, as argued by the government, Plaintiff offers no authority supporting a
requirement that the ALJ defer to the remainder of Dr. Hodges’s opinion in light of the ALJ’s
determination that the suggested sitting limitation was not well supported. The ALJ’s discussion
of Dr. Hodges’s opinion adequately informed Plaintiff (and the reviewing court) of the reasons
that opinion was given little weight.

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The same conclusion applies with respect to the weight given to Dr. Akin’s opinion. The
ALJ accorded it little weight because Dr. Akin had only recently treated Plaintiff a few times, but
applied his opinion back to 2012 and his opined postural limitations of never being able to stoop,
kneel, crouch, or crawl were inconsistent with records from Dr. Mullady at an exam in January
2013 and with records from Dr. Vaughn at a visit in August 2013 (Tr. 21, 379). These reasons
pass the requirements of the treating source rule contrary to Plaintiff’s counterarguments.
A properly balanced analysis, as was performed by the ALJ in this case, can allow the
Commissioner to defer ultimately more to the opinions of consultative doctors than to those of
treating physicians. See SSR 96-6p, 1996 WL 374180, at *3 (July 2, 1996) (“In appropriate
circumstances, opinions from . . . medical . . . consultants . . . may be entitled to greater weight
than the opinions of treating or examining sources.”). It is not error to ascribe more weight to a
non-examining or examining physician than to a treating physician in appropriate cases. See,
e.g., Brooks v. Comm’r of Soc. Sec., 531 F. App’x 636, 642 (6th Cir. 2013) (citing SSR 96–6p,
1996 WL 374180, at *3 (July 2, 1996)); Norris v. Comm’r of Soc. Sec., 461 F. App’x 433, 439
(6th Cir. 2012) (“Any record opinion, even that of a treating source, may be rejected by the ALJ
when the source’s opinion is not well supported by medical diagnostics or if it is inconsistent
with the record.” (Citations omitted)).
The ALJ’s decision discusses the evidence considered, noting not only the medical
source statements but also Plaintiff’s medical history, the medical signs and laboratory findings,
diagnostic imaging, the effects of treatment, the reports of daily activities, and other
observations. These are all the appropriate types of relevant evidence that an ALJ must consider
in evaluating medical opinions and formulating an RFC. See SSR 96-8p, 1996 WL 374184, at
*5 (July 2, 1996).

The Court FINDS the ALJ’s narrative discussion described sufficient

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evidence to support the ALJ’s RFC determination and evaluation of the medical evidence and
opinions.
Accordingly, because the ALJ’s hypothetical question included the limitations the ALJ
found credible and incorporated into the RFC determination, the ALJ could rely on the VE’s
testimony to support the finding that Plaintiff could perform jobs that exist in sufficient number
in the national economy. See Graley v. Comm’r of Soc. Sec., 646 F. App’x 414, 417 (6th Cir.
2016); Griffeth v. Comm’r of Soc. Sec., 217 F. App’x 425, 429 (6th Cir. 2007). Thus, the Court
CONCLUDES that the ALJ’s determination that jobs existed in significant numbers in the
national economy that Plaintiff could perform was supported by substantial evidence in the
record.
An ALJ’s determination must stand if it is supported by substantial evidence regardless
of whether the reviewing court would resolve the conflicts in the evidence differently. Kinsella
v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983). Here, the ALJ was faced with conflicting
evidence relating to Plaintiff’s ability to perform a reduced range of light work. As outlined
above, the ALJ’s resolution of this conflict was done in accordance with agency regulations and
controlling law and is supported by substantial evidence. Because the ALJ reached his decision
using correct legal standards and because those findings are supported by substantial evidence,
the Court must affirm it, even if reasonable minds could disagree on whether the individual was
disabled or substantial evidence could also support a contrary result.

See, e.g., Wright v.

Massanari, 321 F.3d 611, 614 (6th Cir. 2003); see also Longworth v. Comm’r of Soc. Sec., 402
F.3d 591, 595 (6th Cir. 2005) (“If substantial evidence supports the Commissioner’s decision,
this Court will defer to that finding even if there is substantial evidence in the record that would
have supported an opposite conclusion.” (Internal quotation marks omitted)).

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V.

CONCLUSION
For the foregoing reasons,
1) Plaintiff’s motion for judgment on the pleadings [Doc. 16] is DENIED;
2) The Commissioner’s motion for summary judgment [Doc. 18] is GRANTED;
and
3) The Commissioner’s decision denying benefits is AFFIRMED.
SO ORDERED.
ENTER:
s/fâátÇ ^A _xx
SUSAN K. LEE
UNITED STATES MAGISTRATE JUDGE

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