Messina v. Social Security Administration, Commissioner of
JUDGMENT ORDER that the Court finds that the ALJ properly reviewed and weighed theevidence to determine Plaintiff is capable of performing light work, with certainenumerated restrictions. Substantial evidence supports the ALJs findings andconclusions. Therefore, Plaintiffs Motion For Summary Judgment 13 is DENIED and that the Commissioners Motion for Summary Judgment 11 isGRANTED. Signed by Chief District Judge Thomas A Varlan on 9/10/13. (ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
TOMMYE BERGERON MESSINA,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
This case is before the undersigned for disposition of Plaintiff’s Motion for
Summary Judgment and Memorandum in Support [Docs. 11, 12] and Defendant’s
Motion for Summary Judgment and Memorandum in Support [Docs. 13, 14]. Plaintiff
Tommye Bergeron Messina seeks judicial review of the decision of the Administrative
Law Judge (“ALJ”), the final decision of the Defendant Carolyn W. Colvin, Acting
Commissioner of Social Security (“the Commissioner”).
On November 26, 2008, the Plaintiff filed an application for a period of disability,
disability insurance benefits, and/or supplemental security income, claiming a period of
disability which began October 7, 2008. After her application was denied initially and
also denied upon reconsideration, the Plaintiff requested a hearing. On July 14, 2010, a
hearing was held before an ALJ to review determination of Plaintiff’s claim. [Tr. 39-60].
On August 18, 2010, the ALJ found that the Plaintiff was not disabled.
The Appeals Council denied the Plaintiff’s request for review; thus, the decision
of the ALJ became the final decision of the Commissioner. The Plaintiff now seeks
judicial review of the Commissioner’s decision.
The ALJ made the following findings:
1. The claimant meets the insured status requirements of the
Social Security Act through December 31, 2013.
2. The claimant has not engaged in substantial gainful
activity since October 7, 2008, the alleged onset date (20 CFR
404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following combination of severe
impairments: degenerative disc disease of the cervical spine,
carpal tunnel syndrome, ulnar nerve neuropathy,
hyperlipidemia, anxiety, and depression (20 CFR 404.1520(c)
4. The claimant does not have an impairment or combination
of impairments that meets or medically equals one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix
1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d),
416.925 and 416.926).
5. After careful consideration of the entire record, the
undersigned finds that the claimant has the residual functional
capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) except that she can only
occasionally climb stairs or ramps; she can only occasionally
stoop, bend from the waist to the floor, or crouch; she cannot
climb ladders, ropes, or scaffolds; she cannot crawl; she
cannot do repetitive handling, feeling, or fingering; she is
limited to no more than frequent overheard reaching; and she
requires work involving no more than simple, repetitive, and
6. The claimant is unable to perform any past relevant work
(20 CFR 404.1565 and 416.965).
7. The claimant was born on April 30, 1962 and was 46 years
old, which is defined as a younger individual age 18-49, on
the alleged disability onset date (20 CFR 404.1563 and
8. The claimant has at least a high school education and is
able to communicate in English (20 CFR 404.1564 and
9. Transferability of job skills is not material to the
determination of disability because using the MedicalVocational Rules as a framework supports a finding that the
claimant is “not disabled,” whether or not the claimant has
transferable job skills (See SSR 82-41 and 20 CFR Part 404,
Subpart P, Appendix 2).
10. Considering the claimant’s age, education, and work
experience, and residual functional capacity, there are jobs
that exist in significant numbers in the national economy that
the claimant can perform (20 CFR 404.1569, 404.1569(a),
416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined
in the Social Security Act, from October 7, 2008, through the
date of this decision (20 CFR 404.1520(g) and 416.920(g)).
To qualify for SSI benefits, plaintiff must file an application and be an “eligible
individual” as defined in the Act. 42 U.S.C. § 1382(a); 20 C.F.R. § 416.202. An
individual is eligible for SSI benefits on the basis of financial need and either age,
blindness, or disability. See 42 U.S.C. § 1382(a).
“Disability” is the inability “[t]o 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
period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). An individual shall
be determined to be under a disability 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, regardless of whether such
work exists in the immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work. 42 U.S.C. §
Disability is evaluated pursuant to a five-step analysis summarized as follows:
1. If claimant is doing substantial gainful activity, he is not
2. If claimant is not doing substantial gainful activity, his
impairment must be severe before he can be found to be
3. If claimant is not doing substantial gainful activity and is
suffering from a severe impairment that has lasted or is
expected to last for a continuous period of at least twelve
months, and his impairment meets or equals a listed
impairment, claimant is presumed disabled without further
4. If claimant’s impairment does not prevent him from doing
his past relevant work, he is not disabled.
5. Even if claimant’s impairment does prevent him from
doing his past relevant work, if other work exists in the
national economy that accommodates his residual functional
capacity and vocational factors (age, education, skills, etc.),
he is not disabled
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (citing 20 C.F.R. §
404.1520). Plaintiff bears the burden of proof at the first four steps. Walters, 127 F.3d at
529. The burden shifts to the Commissioner at step five. Id. At the fifth step, the
Commissioner must prove that there is work available in the national economy that the
claimant could perform. Her v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999)
(citing Bowen v. Yuckert, 482 U.S. 137, 146 (1987)).
STANDARD OF REVIEW
When reviewing the Commissioner’s determination of whether an individual is
disabled pursuant to 42 U.S.C. § 405(g), the Court is limited to determining “whether the
ALJ applied the correct legal standards and whether the findings of the ALJ are supported
by substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir.
2009) (citing Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). If the ALJ applied the
correct legal standards and his findings are supported by substantial evidence in the
record, his decision is conclusive and must be affirmed. Warner v. Comm’r of Soc. Sec.,
375 F.3d 387, 390 (6th Cir. 2004); 42 U.S.C. § 405(g). Substantial evidence is “more
than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Rogers v. Comm’r
of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quotation omitted); see also Richardson
v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison v. NLRB, 305 U.S. 197,
It is immaterial whether the record may also possess substantial evidence to
support a different conclusion from that reached by the ALJ, or whether the reviewing
judge may have decided the case differently. Crisp v. Sec’y of Health & Human Servs.,
790 F.2d 450, 453 n.4 (6th Cir. 1986). The substantial evidence standard is intended to
create a “‘zone of choice’ within which the Commissioner can act, without the fear of
court interference.” Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001) (quoting Mullen
v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)). Therefore, the Court will not “try the case
de novo, nor resolve conflicts in the evidence, nor decide questions of credibility.”
Walters, 127 F.3d at 528.
In addition to reviewing the ALJ’s findings to determine whether they were
supported by substantial evidence, the Court also reviews the ALJ’s decision to
determine whether it was reached through application of the correct legal standards and
in accordance with the procedure mandated by the regulations and rulings promulgated
by the Commissioner. See Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir.
2004). The Court may, however, decline to reverse and remand the Commissioner’s
determination if it finds that the ALJ’s procedural errors were harmless.
An ALJ’s violation of the Social Security Administration’s procedural rules is
harmless and will not result in reversible error “absent a showing that the claimant has
been prejudiced on the merits or deprived of substantial rights because of the [ALJ]’s
procedural lapses.” Wilson, 378 F.3d at 546-47. Thus, an ALJ’s procedural error is
harmless if his ultimate decision was supported by substantial evidence and the error did
not deprive the claimant of an important benefit or safeguard. See id. at 547.
On review, Plaintiff bears the burden of proving his entitlement to benefits. Boyes
v. Sec’y. of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994) (citing Halsey v.
Richardson, 441 F.2d 1230 (6th Cir. 1971)).
POSITIONS OF THE PARTIES
Plaintiff argues that the Commissioner’s decision was not supported by substantial
evidence. She presents three allegations of error: (1) the ALJ erred by not finding that
the Plaintiff’s alleged fibromyalgia was a severe impairment; (2) the ALJ erred in
weighing the medical evidence in the record – specifically, opinions of treating sources;
and (3) the ALJ erred in his evaluation of the Plaintiff’s credibility and subjective
The Commissioner responds that the ALJ’s decision is supported by substantial
evidence. Alternatively, the Commissioner concedes that the ALJ may have erred, but
the Commissioner maintains that any error was harmless and not the basis for a remand.
The Court will address each of the Plaintiff’s allegations of error in turn.
Fibromyalgia as a Severe Impairment
As the Plaintiff recognizes, there is no specific listing for fibromyalgia in the
listings of impairments found at 20 C.F.R. 404, Subpart P, Appendix 1.
Commissioner will, however, recognize fibromyalgia as a medically determinable
impairment if the condition is established by findings that comply with the definition
endorsed by the American College of Rheumatology. See Jarvis v. Comm’r of Soc. Sec.,
2009 WL 649655, at *13 (S.D. Ohio 2009). As with any other medical condition, “[t]he
mere diagnosis of fibromyalgia does not per se establish disability.” Id.
The Plaintiff’s argument is somewhat unclear, but she appears to argue that the
ALJ erred by not finding fibromyalgia to be a severe impairment at step two of the
analysis. [Doc. 12 at 6].1 Failure to find a specific impairment is severe at step two is
legally inconsequential. As the Court of Appeals for the Sixth Circuit has explained,
“once any one impairment is found to be severe, the ALJ must consider both severe and
nonsevere impairments in the subsequent steps.” McGlothin v. Comm’r of Soc. Sec., 299
Fed. App’x 516, 522 (6th Cir. 2008). When the ALJ proceeds to step three after finding
any severe impairments at step two, then the failure to identify a particular impairment as
severe becomes “legally irrelevant.” Id.
In this case, the ALJ found that Plaintiff had at least one severe impairment, and
the issue of whether other impairments could have been found to be severe is “legally
irrelevant.” See id. The ALJ specifically found at step two of the sequential evaluation
process that Plaintiff had several severe impairments. [Tr. 29]. Thus, the ALJ found in
To the extent the Plaintiff more generally argues that the ALJ did not properly address
findings of Sam Kabbani, M.D., the Court will address those findings below in Part B of Section
V of this Memorandum and Order.
Plaintiff’s favor at step two and proceeded through step five of the sequential evaluation
process. See 20 C.F.R. §§ 404.1520(a)(4)(iii)-(v), 416.920(a)(4)(iii)-(v).
Because the ALJ did not stop at step two and continued through the sequential
analysis, the Court finds that, to the extent the ALJ erred by not including fibromyalgia in
the list of severe impairments at stage two, such error is harmless and “legally irrelevant.”
The undersigned finds that the allegation of error at step two is not well-taken, and it is
not an appropriate basis for remand or reversal.
Weighing the Medical Evidence in the Record
Plaintiff alleges that the ALJ erred in weighing the medical evidence in the record.
In her initial Brief in Support of Motion for Summary Judgment [Doc. 12], Plaintiff
mentions only Sam Kabbani, M.D., by name in her argument regarding the weighing of
the medical evidence in the record, [id. at 11-12]. In her Supplemental Brief [Doc. 17],
however, the Plaintiff also takes issue with the weight afforded to the findings of
Timothy Renfree, M.D., and her mental health providers, and the ALJ’s explanation. The
Court will address the weight afforded to each of these sources in turn.
Sam Kabbani, M.D.
The Commissioner does not dispute the Plaintiff’s classification of Dr. Kabbani of
East Tennessee Neurology Clinic, P.C., as a treating physician.
Plaintiff submits that Dr. Kabbani diagnosed Plaintiff with fibromyalgia in an
office note composed July 15, 2008. [Doc. 12 at 2 (citing Tr. 227)]. This office note
Ms. Messina returns today for follow-up regarding her right
arm pain. She said the Daypro has helped. She lost her job.
She seemed [to be] having some depression. She is not
suicidal. She is feeling down due to the loss of her job and
the pain itself. She has tender spots in more than 11 points. I
gave her trial of Cymbalta 30 mg, increased to 60 mg daily
for fibromyalgia. Refill medications. Return to my office in
three months. Otherwise, no change on physical exam.
[Tr. 227]. Plaintiff notes that Dr. Kabbani also prescribed the Plaintiff pain medication
and conducted nerve sensory tests [Tr. 230-33], which Plaintiff argues supports the
The ALJ discussed Dr. Kabbani’s assessment of the Plaintiff stating: “In a July
2008 follow-up visit the claimant reported that the medication that she had been given
had helped with pain. She also reported that she had lost her job and that she was feeling
depressed.” [Tr. 31]. The ALJ also addressed what appears to be the Plaintiff’s only
other visit with Dr. Kabbani in the record. [Tr. 31]. He explained that in her initial visit
in March 2008 she was treated for pain in her right elbow and shoulder and diagnosed
with neuropathy in the right arm. [Tr. 31]. With regard to the sensory tests also
conducted in March 2008, the ALJ explained: “The treatment record noted that an
electromyography conducted in March 2008 revealed significant carpal tunnel syndrome
as well as ulnar nerve compression at the elbow, indicating cubital tunnel syndrome.”
Ultimately, the ALJ concluded that the Plaintiff was capable of performing light
work with certain enumerated limitations on stooping, bending, crouching, etc. [Tr. 38].
The ALJ afforded great weight to the state agency consultants and gave little weight to
the treating physicians’ opinions “to the extent they conclude that the claimant had
greater limitations in work-related functioning than indicated by the State agency
consultants.” [Tr. 33].
The treating physician rule is familiar to the Court and the parties. In short, if a
treating physician’s opinion as to the nature and severity of an impairment is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in the case record, it must be given
controlling weight. 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2). But where an
opinion does not garner controlling weight, the appropriate weight to be given to an
opinion will be determined based upon the following factors: length of treatment,
frequency of examination, nature and extent of the treatment relationship, amount of
relevant evidence that supports the opinion, the opinion’s consistency with the record as a
whole, the specialization of the source, and other factors which tend to support or
contradict the opinion. 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2).
When an ALJ does not give a treating physician’s opinion controlling weight, the
ALJ must always give “good reasons” for the weight given to a treating source’s opinion
in the decision. 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2).
The Court finds that the ALJ may have erred by not giving good reasons for
discounting Dr. Kabbani’s statement that Plaintiff received treatment for fibromyalgia.
For the reasons stated below, however, the Court finds that any such error is not
The Court of Appeals for the Sixth Circuit has explained that “if the
Commissioner adopts the opinion of the treating source or makes findings consistent with
the opinion, it may be irrelevant that the ALJ did not give weight to the treating
physician’s opinion, and the failure to give reasons for not giving such weight is
correspondingly irrelevant.” Wilson, 378 F.3d at 547. The undersigned has weighed this
flexibility against more recent pronouncements by the Court of Appeals that it “has made
clear that [it] do[es] not hesitate to remand when the Commissioner has not provided
good reasons for the weight given to a treating physician’s opinion.” Gayheart v. Comm’r
of Soc. Sec., 710 F.3d 365, 380 (6th Cir. 2013) (citing Cole v. Astrue, 661 F.3d 931, 939
(6th Cir. 2011)).
The Court finds that the error with regard to Dr. Kabbani is harmless, because the
mere mention of fibromyalgia does not equate to a medical opinion precluding work. Dr.
Kabbani did not opine on the nature and extent of the Plaintiff’s fibromyalgia. He did not
say, for example, that the Plaintiff had difficulty sitting for longer than an hour or that it
was reasonable to expect the Plaintiff would have difficulty walking given the severity of
Moreover, the ALJ included many limitations that would likely
address the pain caused by Plaintiff’s fibromyalgia – e.g. not stooping, bending; not
climbing ladders or engaging in repetitious tasks; not frequently reaching overhead. [Tr.
31]. At the hearing, the Plaintiff mentioned her fibromyalgia and its effect on her ability
to sit and stand later in her testimony, but the limitations she alleged were not correlated
to or corroborated by Dr. Kabbani. [Tr. 48-49].
Based upon the foregoing, the Court finds that the ALJ did not commit reversible
error in affording little weight – to the extent it exceeded the residual functional capacity
determination – to Dr. Kabbani’s treatment of Plaintiff for fibromyalgia.
Timothy J. Renfree, M.D.
In her initial brief, Plaintiff argues that the ALJ erred by not discussing the fact
that the “treating physician and the Plaintiff have discussed surgery options to possibly
alleviate her conditions.” [Doc. 12 at 11]. The Plaintiff does not identify the condition or
the treating physician to whom she refers, but it appears from the record that Plaintiff
meant Timothy J. Renfree, M.D., who treated Plaintiff at Tennessee Orthopaedic Clinic.
In her supplemental brief, Plaintiff adds that Dr. Renfree found the Plaintiff had a
positive Tinel and compression overlying the cubital tunnel. [Tr. 237]. She also submits
that Dr. Renfree found that the nerve conduction studies performed by Dr. Kabbani were
significant for carpal tunnel syndrome and nerve compression in the elbow. [Id.].
Plaintiff maintains that the ALJ erred by not affording appropriate weight to these
findings or properly explaining the reasons for discounting the findings. As stated above,
if a treating physician’s opinion as to the nature and severity of an impairment is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in the case record, it must be given
controlling weight, and where it is not afforded such weight, the ALJ must state good
reasons for his or her decision to discount the opinion.
On July 21, 2008, Dr. Renfree confirmed that the Plaintiff had carpel tunnel
syndrome and cubital tunnel syndrome. He stated, “Her EMG and nerve conduction
study per Dr. Kabbani 3/24/08 looking at the numbers here, looks significant for carpal
tunnel syndrome as well as ulnar ne[rve] compression at the elbow, cubital tunnel
He also noted Plaintiff’s positive Tinel and compression
overlying both the carpal and cubital tunnel. [Id.]. Dr. Renfree recommended surgery.
The ALJ found the Plaintiff’s severe impairments included carpal tunnel syndrome
and ulnar nerve neuropathy. He addressed Dr. Renfree’s findings by explaining:
In a separate July 2008 treatment, the claimant was seen for
right greater than left numbness and tingling in her hands.
She reported that her physical impairments got worse around
November 2007 and now she had loss of grip strength,
weakness, increased numbness, and paresthesias.
underwent a nerve conduction study which indicated carpal
tunnel syndrome and cubital tunnel syndrome.
examination of her right upper extremity revealed a positive
Tinel and compression overlying the cubital tunnel and
positive Tinel and compression overlying the carpal tunnel.
She had some mild thenar wasting on the right and she could
flex and extend her digits. Her sensation was intact to light
touch and she noted subjective numbness to her finger tips.
She had numbness both ulnarly and radially. The treatment
record noted that an electromyography conducted in March
2008 revealed significant carpal tunnel syndrome as well as
ulnar nerve compression at the elbow, indicating cubital
tunnel syndrome. Surgery for both carpal tunnel release and
ulnar nerve surgery has been recommended but the claimant
so far has lacked the insurance necessary to get the surgery.
The ALJ stated generically that he gave the findings of treating physicians “little
weight to the extent that they conclude that the claimant had greater limitations in workrelated physical functioning than indicated by the State agency consultants.” [Tr. 33].
He added: “The claimant’s carpal tunnel syndrome and ulnar neuropathy could be
improved with surgery but the claimant simply cannot afford such surgery. Thus, she has
not reached a level of maximum medical improvement with respect to those impairments
despite suggested plan for treatment.” [Tr. 32].
The Plaintiff has not cited the Court to, nor has the Court found any findings made
by Dr. Renfree that were actually discounted. Louise G. Patikas, M.D., the state agency
physician who reviewed the file, adopted Dr. Renfree’s findings from July 21, 2008. [Tr.
377]. Dr. Patikas found that the Plaintiff was limited in her manipulation including
reaching, handling, fingering, and feeling, [Tr. 373], and the ALJ adopted the same
Another state agency physician, Robert T. Doster, found similar
manipulative limitations, except that he found the Plaintiff was not limited in her ability
to feel. [Tr. 436]. The ALJ, however, adopted Dr. Patikas’s more restrictive findings
which included limitations on feeling. [Tr. 30].
The Court has reviewed the treatment notes from Dr. Renfree and finds that Dr.
Renfree never indicated limitations beyond the limitations endorsed by the state agency
physician and adopted by the ALJ. [Tr. 237]. Thus, the Court finds that the ALJ did not
discount the findings of Dr. Renfree.
The Court acknowledges that the ALJ’s generic statement that all treating
physicians received little weight is a somewhat confusing way of stating his actual
findings, and the Court could arguably find that the ALJ erred by not stating the weight
afforded to Dr. Renfree’s treatment more explicitly.
After reviewing the record,
however, the Court is convinced that Dr. Renfree did not actually offer an opinion on the
extent of the actual limitations from the Plaintiff’s carpal and capital syndromes. He
failed to do so despite the fact that he specifically noted that the Plaintiff was “a
receptionist apparently unemployed.”
The ALJ and the state agency
physicians acknowledged and adopted Dr. Renfree’s diagnoses, and the ALJ incorporated
limitations into the residual functional capacity determination that addressed the carpal
and capital syndromes.
Based upon the foregoing, the Court finds that the ALJ did not err in addressing or
affording weight to the findings of Dr. Renfree.
Mental Health Providers
In her supplemental brief, Plaintiff argues that the ALJ erred in weighing the
opinions of her mental health providers. The Plaintiff was treated by Psychiatrist Shirley
Trentham for depression in 2008 to 2009. Dr. Trentham indicated that the Plaintiff
suffered from Neurotic Depression and assessed the Plaintiff with a Global Assessment
Functioning (“GAF”) scores of 52 to 60. [Tr. 362, 364, 366, 358, 432, 434]. Diana Cox, a
therapist, wrote a letter on December 23, 2010, stating that the Plaintiff is continuing
treatment, was having difficulty controlling her symptoms, and “would be unable to
maintain employment.” [Tr. 451]. She also stated that the Plaintiff would have difficulty
making decisions, procrastinating, and not being self-assured.
Andrew J. Phay, Ph.D., the state agency physician, diagnosed Plaintiff with
moderate, recurrent depressive disorder. [Tr. 391]. He found that the Plaintiff was likely
to have some but not substantial difficulty maintaining concentration, performing routine
performance/productivity. [Tr. 395].
The ALJ discussed the Plaintiff’s mental health treatment history at length, [Tr.
32], and as with the other treating physicians the ALJ discounted the opinions of
Plaintiff’s treating sources to the extent they conflicted with the findings of the state
agency physicians. Initially, the Court finds that the treating psychiatrists’ GAF scores
between 50 and 60, which indicate moderate symptoms, are consistent with the ALJ’s
limitation of the Plaintiff’s residual functional capacity to simple, repetitive, non-detailed
The Court finds that the ALJ did not discount these scores.
Alternatively, to the extent the ALJ’s opinion may be interpreted as discounting these
scores, the Court finds that the ALJ properly explained this finding by noting the
treatment relationship and Dr. Trentham’s specialty, but stating that the scores were
considered along with later assessments indicating that the Plaintiff was doing better, [Tr.
The ALJ did err in discussing the Plaintiff’s daily activities. He noted that the
“claimant stays home and cares for the needs of her husband and children,” and
thereafter, concluded that the Plaintiff had only “mild restrictions.” [Tr. 32]. Plaintiff
testified that her ex-husband only occasionally stays with her, [Tr. 44], and she explained
that her children help her with chores rather than her caring for them, [Tr. 51, 54-55].
This error, however, occurred in discussing Plaintiff’s mental health and is not raised by
the Plaintiff. It appears to the undersigned to be harmless.
With regard to the letter from Ms. Cox, the Court finds first that Ms. Cox was not
a treating physician because she is a therapist. As a result her opinion is not entitled to
the deference afforded to a treating physician. The Plaintiff acknowledges the same.
[Doc. 17 at 9]. Even if a medical source is not a treating physician, the ALJ is required to
consider, but not discuss every medical opinion he or she receives. See 20 C.F.R. §
404.1527; Boseley v. Comm’r of Soc. Sec, 397 Fed. App’x 195, 199 (6th Cir. 2010)
(“Neither the ALJ nor the Council is required to discuss each piece of data in its opinion,
so long as they consider the evidence as a whole and reach a reasoned conclusion.”).
Thus, the Court turns to the issue of whether the ALJ failed to consider Ms. Cox’s letter
and whether any such failure would be reversible error.
In pertinent part, Ms. Cox’s letter stated that the Plaintiff had problems with
making decisions, procrastinating, and being self-assured and that she had issues
controlling her depression. [Tr. 451]. These conditions are adequately addressed through
the portion of the residual functional capacity finding that she could perform “work
involving no more than simple, repetitive, and non-detailed tasks.” [Tr. 30].
The other portion of the opinion which opines that the Plaintiff “would be unable
to maintain employment” infringes upon an area of decision reserved for the
Commissioner. [Tr. 451]. The ALJ would have been more thorough had he stated that
Ms. Cox’s assessment would be afforded little weight in the decision, but the lack of
weight afforded to the assessment is consistent with 20 C.F.R.§§ 404.1527(c)(2) and
416.927(c)(2), which instruct applicants that the Commissioner is “responsible for
making the determination or decision about whether you meet the statutory definition of
disability.” Moreover, it is consistent with the case law of the Sixth Circuit, which also
holds that the issue of whether the claimant can or cannot perform work is reserved for
the ALJ’s determination. See, e.g., Bass v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007)
(“[T]he conclusion of disability is reserved to the Secretary . . . .”); Gaskin v. Comm’r of
Soc. Sec., 280 Fed. App’x 472, 475-76 (6th Cir. 2008) (“[T]he ultimate determination of
disability is a matter reserved to the Commissioner.”). The Court finds that any failure to
discuss Ms. Cox’s opinion that the Plaintiff could not maintain employment is harmless.
Based upon the foregoing, the Court finds that the ALJ did not err in addressing or
affording weight to the findings of the Plaintiff’s mental health providers.
Plaintiff’s Credibility and Subjective Complaints
Finally, the Plaintiff argues that the ALJ did not comply with SSR 96-7p, which
addresses evaluation of credibility. Specifically, the Plaintiff argues that the ALJ gave
too much weight to the fact that Plaintiff received unemployment and sought
employment. [Doc. 12 at 14]. In addition, she argues that the ALJ discounted the
Plaintiff’s credibility because she did not undergo surgery. [Id.].
Social Security Ruling 96-7 is lengthy and addresses a number of topics, but
generally, it instructs:
When evaluating the credibility of an individual’s statements,
the adjudicator must consider the entire case record and give
specific reasons for the weight given to the individual’s
The finding on the credibility of the individual’s statements
cannot be based on an intangible or intuitive notion about an
individual’s credibility. The reasons for the credibility finding
must be grounded in the evidence and articulated in the
determination or decision. It is not sufficient to make a
conclusory statement that “the individual’s allegations have
been considered” or that “the allegations are (or are not)
SSR 96-7p, 1996 WL 374186, *4.
With regard to the Plaintiff’s credibility, the ALJ initially noted that the Plaintiff
received unemployment until just one week before the hearing on her claim. [Tr. 31].
The ALJ explained:
[I]n order to qualify for unemployment insurance benefits, a
person must hold themselves out as being ready, willing, and
able to work provid[ed] an opportunity to work presents
itself, and in most instances, must report their job seeking
efforts in order to continue to qualify for benefits . . . .
Although unemployment benefits are not relevant to a
calculation of whether the claimant was engaging in
substantial gainful activity, the fact that she received those
benefits when she claimed to be disabled should be
considered against her credibility.
[Tr. 29]. After stating that the claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms but not the intensity, persistence,
and limitations alleged, the ALJ further explained:
The claimant alleges that she is unable to work due to her
combination of physical and mental impairments, yet she
drew unemployment insurance from 2008 to 2010 on the
premise that she was ready, willing, and able to work
providing an opportunity to work presented itself. The
claimant testified at the hearing that she was laid off from her
last job because the position was eliminated in the bad
economy. In fact, the claimant testified that she has tried
multiple times to find new employment but has not been
successful. The claimant’s carpal tunnel syndrome and ulnar
neuropathy could be improved with surgery but the claimant
simply cannot afford such surgery. Thus, she has not reached
a level of maximum medical improvement with respect to
those impairments despite the suggested plan for treatment.
The claimant’s mental impairments are moderately limited at
most and the residual functional capacity set forth above takes
into consideration her mental limitations.
“The ALJ’s credibility findings are subject to substantial deference on review. . .
.” White v. Comm’r of Soc. Sec., 572 F.3d 272, 288 (6th Cir. 2009) (quoting Barker v.
Shalala, 40 F.3d 789, 795 (6th Cir. 1994)). “[A]n ALJ’s findings based on the credibility
of the applicant are to be accorded great weight and deference, particularly since an ALJ
is charged with the duty of observing a witness’s demeanor and credibility,” Walters, 127
F.3d at 531.
The Court of Appeals for the Sixth Circuit has held that collection of
unemployment benefits, which requires recipients to state that they are seeking work,
conflicts with allegations of disability under the Social Security Act. As the Court of
Appeals explained in Workman v. Comm’r of Social Sec., 105 F. App’x 794 (6th
Cir.2004), “[a]pplications for unemployment and disability benefits are inherently
Id. at 801 (citing Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th
Cir.1983)); see also Bowden v. Comm’r Social Sec., 1999 WL 98378, *7 (6th Cir. 1999).
The Court finds that the ALJ did not err in discounting the Plaintiff’s credibility
based, in part, on her receipt of unemployment benefits. The case law of this Circuit
clearly establishes that the inconsistency inherent in receiving unemployment benefits –
while certifying that one can and will work – and seeking disability benefits – while
asserting that during the same period of time one cannot work – is relevant to the
credibility of the claimant.
The Plaintiff asserts that the ALJ should have used the Plaintiff’s attempts to find
work to bolster her credibility, rather than undercutting her credibility. [Doc. 12 at 14].
The Plaintiff has not cited the Court to any cases holding the same and the Court has
found none through its own review. Further, the Court finds that claiming benefits from
one government agency by attesting to a willingness and ability to work and subsequently
claiming benefits from a different government agency by attesting to an inability to work
during the same time period does call one’s credibility into issue.
With regard to the ALJ’s note that the Plaintiff had not reached the maximum
level of medical improvement, SSR 96-7p instructs the ALJ to consider explanations that
may provide insight into why the Plaintiff has not undergone certain treatments. SSR 967p at *7-8. The ALJ followed his remark about surgery by noting that the Plaintiff
“simply cannot afford such surgery.” [Tr. 32]. The ALJ’s statement indicates that he did
not discount Plaintiff’s credibility based upon her inability to pay. He observed that she
had not met her maximum medical improvement, and as a result, the residual functional
capacity determination included restrictions on repetitive handling feeling or fingering,
along with restrictions on frequent overhead reaching. [Tr. 30]. The Court finds that the
ALJ did not err by noting that the Plaintiff had not had surgery and could not afford such
surgery, and that there is no indication that the ALJ discounted the Plaintiff’s credibility
because of such.
Based upon the foregoing and considering the deference afforded to an ALJ’s
credibility determination, the Court finds that the ALJ did not commit reversible error in
evaluating the Plaintiff’s credibility or subjective complaints.
Accordingly, the Court finds that the ALJ properly reviewed and weighed the
evidence to determine Plaintiff is capable of performing light work, with certain
Substantial evidence supports the ALJ’s findings and
Therefore, Plaintiff’s Motion For Summary Judgment [Doc. 13] is
DENIED and that the Commissioner’s Motion for Summary Judgment [Doc. 11] is
IT IS SO ORDERED.
s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE
ENTERED AS A JUDGMENT
s/ Debra C. Poplin
CLERK OF COURT
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