Mise v. Colvan et al. (TV2)

Filing 16

MEMORANDUM AND OPINION as set forth in following order. Signed by Magistrate Judge H Bruce Guyton on 6/28/16. (ABF)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
WILLIAM DAVID MISE,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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No. 3:15-CV-373-HBG

MEMORANDUM OPINION
This case is before the undersigned pursuant to 28 U.S.C. § 636(b), Rule 72(b) of the
Federal Rules of Civil Procedure, and the consent of the parties [Doc. 12]. Now before the Court
is the Plaintiff’s Motion for Summary Judgment and Memorandum in Support [Docs. 13 & 13-1]
and the Defendant’s Motion for Summary Judgment and Memorandum in Support [Docs. 14 &
15].

William David Mise (“the Plaintiff”) seeks judicial review of the decision of the

Administrative Law Judge (“the ALJ”), the final decision of the Defendant Carolyn W. Colvin,
Acting Commissioner of Social Security (“the Commissioner”).
On February 20, 2014, the Plaintiff filed an application for disability insurance benefits
(“DIB”), claiming a period of disability which began December 12, 2013. [Tr. 268]. After his
application was denied initially and upon reconsideration, the Plaintiff requested a hearing. [Tr.
151]. On November 20, 2014, a hearing was held before the ALJ to review determination of the
Plaintiff’s claim. [Tr. 36-48]. During the hearing, the Plaintiff amended his alleged onset date to
January 1, 2014. [Tr. 42]. A supplement hearing was held on March 26, 2015, in order to allow
the Plaintiff to undergo two consultative examinations as well as obtain additional medical

evidence that was missing at the time of the first hearing. [Tr. 49-79].

Following the second

hearing, the ALJ issued a decision on May 5, 2015, finding that the Plaintiff was not disabled.
[Tr. 12-32]. The Appeals Council denied the Plaintiff’s request for review [Tr. 1-5]; thus, the
decision of the ALJ became the final decision of the Commissioner.
Having exhausted his administrative remedies, the Plaintiff filed a Complaint with this
Court on June 5, 2015, seeking judicial review of the Commissioner’s final decision under
Section 205(g) of the Social Security Act.

[Doc. 2].

The parties have filed competing

dispositive motions, and this matter is now ripe for adjudication.

I.

ALJ FINDINGS
The ALJ made the following findings:
1. The claimant meets the insured status requirements of the
Social Security Act through December 31, 2017.
2. The claimant has not engaged in substantial gainful activity
since January 14, 2014, the amended alleged onset date (20 CFR
404.1571 et seq.).
3.
The claimant has the following severe impairments:
degenerative disc disease, anxiety, asthma, diabetes mellitus and
diabetic neuropathy, and depression (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform sedentary work as defined in 20 CFR 404.1567(a) except
he can stand and/or walk for six hours in an eight-hour workday;
sit for six hours in eight-hour workday; cannot climb ladders,
ropes, or scaffolds; and he can only occasional climb ramps or
stairs, balance, stoop, kneel, crouch, or crawl. In addition, he can
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only have occasional exposure to extreme cold and heat; and can
have no exposure to pulmonary irritants, proximity to moving
mechanical parts, or working in high exposed places. Mentally, he
has the ability to understand, remember, and carry out simple and
detailed and complex instructions; is able to maintain
concentration and persistence for the above tasks; is able to adapt
to gradual and infrequent changes in the work setting; and is
limited to work that requires occasional interaction with public, coworkers, and supervisors.
6. The claimant is unable to perform any past relevant work (20
CFR 404.1565).
7. The claimant was born on September 12, 1974 and was 39
years old, which is defined as a younger individual age 18-44, on
the alleged disability onset date (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination
of disability because using the Medical-Vocational 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, 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 and 404.1569(a)).
11. The claimant has not been under a disability, as defined in the
Social Security Act, from January 1, 2014, through the date of this
decision (20 CFR 404.1520(g)).
[Tr. 17-26].

II.

DISABILITY ELIGIBILITY
This case involves an application for DIB. An individual qualifies for DIB if he or she:

(1) is insured for DIB; (2) has not reached the age of retirement; (3) has filed an application for
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DIB; and (4) is disabled. 42 U.S.C. § 423(a)(1).
“Disability” is 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 period of not less than twelve
months.” § 423(d)(1)(A); 20 C.F.R. § 404.1505(a). A claimant will only be considered disabled
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. § 423(d)(2)(A); see 20 C.F.R. § 404.1505(a).
Disability is evaluated pursuant to a five-step analysis summarized as follows:
1. If claimant is doing substantial gainful activity, he is not
disabled.
2. If claimant is not doing substantial gainful activity, his
impairment must be severe before he can be found to be disabled.
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 inquiry.
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 (“RFC”) and
vocational factors (age, education, skills, etc.), he is not disabled.
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Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (citing 20 C.F.R. §
404.1520). The claimant bears the burden of proof at the first four steps. Id. 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)).

III.

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. 42 U.S.C. § 405(g); Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th
Cir. 2004).

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.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.
1994) (citing Kirk v. Secretary of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981))
(internal citations omitted).
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
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(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.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citing
Myers v. Richardson, 471 F.2d 1265 (6th Cir. 1972)).
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).
On review, the 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)).

IV.

POSITIONS OF THE PARTIES
On appeal, the Plaintiff raises three allegations of error committed by the ALJ. First, the

Plaintiff argues that he suffers from additional severe impairments beyond those found by the
ALJ at step two. [Doc. 13-1 at 5]. Second, the Plaintiff contends that the ALJ failed to give
appropriate consideration to the opinion of consultative examiner Jeffrey Uzzle, M.D. [Id. at 56]. Lastly, the Plaintiff maintains that the ALJ’s credibility determination is not supported by
substantial evidence. [Id. at 7-8].
The Commissioner submits that the ALJ properly evaluated the Plaintiff’s impairments at
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step two and took into consideration all of the Plaintiff’s severe and nonsevere impairments at
subsequent steps of the sequential evaluation. [Doc. 15 at 3]. The Commissioner additionally
contends that the ALJ’s residual functional capacity (“RFC”) assessment is supported by
substantial evidence, which included a proper evaluation of Dr. Uzzle’s opinion and the
Plaintiff’s credibility. [Id. at 4-12].

V.

ANALYSIS
The Court will address the Plaintiff’s allegations of error in turn.
A.

Step Two – Severe Impairments

At step two, the ALJ found that the Plaintiff’s degenerative disc disease, anxiety, asthma,
diabetes mellitus and diabetic neuropathy, and depression were severe impairments. [Tr. 17].
The Plaintiff argues that the ALJ failed to recognize additional severe impairments, including
“abdominal pain, chest pain, anxiety, arthralgia, back pain, cough, decrease in appetite, diabetes
mellitus type 2, dizziness, fatigue, fever, [gastroesophageal reflux disease] GERD, headache
hyperlipidemia, hypogonadism, insomnia, joint pain, lower back pain, nasal passage blockage,
neck pain, and shortness of breath,” as well as “chronic bronchitis and chronic sinusitits.” [Doc.
13-1 at 5]. The Plaintiff contends that these additional conditions severely affected his ability to
do work. [Id.].
The Commissioner maintains that the Plaintiff’s argument is without merit because the
ALJ considered many of the impairments alleged by the Plaintiff, some of which were found to
be severe, and that the Plaintiff also fails to explain how the additional impairments he cites
cause limitations beyond those assessed by the ALJ.

[Doc. 15 at 4].

Furthermore, the

Commissioner points out that the particular impairments found to be severe at step two is
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“legally irrelevant” since the ALJ continued the sequential evaluation and considered all of the
Plaintiff’s impairments, both severe and nonsevere, at the remaining steps. [Id.].
At step two, “the ALJ must find that the claimant has a severe impairment or
impairments” to be found disabled. Farris v. Sec’y of Health & Human Servs., 773 F.2d 85, 88
(6th Cir. 1985). To be severe, an impairment or combination of impairments must “significantly
limit[] your physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c).
Step two has been described as “a de minimis hurdle” in that an impairment will be considered
nonsevere “only if it is a slight abnormality that minimally affects work ability regardless of age,
education, and experience.” Higgs v. Brown, 880 F.2d 860, 862 (6th Cir. 1988) (citing Farris,
773 F.2d at 90).
Here, the Court finds no error by the ALJ at step two for several reasons. First, the ALJ
considered many of the impairments complained of by the Plaintiff and even found several of
them to be severe.

For example, the ALJ considered complaints of chest pain, anxiety,

arthralgia, back pain, diabetes, GERD, hyperlipidemia, joint pain, breathing problems, chronic
bronchitis, and chronic sinusitits. [Tr. 17-18, 21]. Several of the impairments complained of by
the Plaintiff were in fact found to be severe by the ALJ, including the Plaintiff’s anxiety, asthma,
back problems (i.e., degenerative disc disease), and diabetes. [Tr. 17]. As to the additional
impairments alleged to be severe, the Plaintiff does not explain how they significantly limit his
ability to perform work activities. While he draws the Court’s attention to numerous treatment
records from his primary care provider, David Goldman, M.D., in arguing that he suffered from
additional severe impairments, the Court observes that the cited records do no more than
repetitively note various medical conditions the Plaintiff has been diagnosed with at one time or
another. These records do not provide documentation of continuous complaints of or treatment
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for each noted diagnosis, and therefore fail to demonstrate that that the Plaintiff suffered from
additional impairments that significantly limited his functional abilities. See Higgs, 880 F.2d at
863 (explaining that the mere diagnosis of a condition “says nothing about the severity of the
condition”).
Second, even if the Plaintiff could successfully argue that he suffered from additional
impairments that were severe, “the specific severe impairment noted by the ALJ in his step two
finding is irrelevant.” Hastie v. Colvin, No. 3:13-CV-511-TAV-HBG, 2014 WL 2208942, at *3
(E.D. Tenn. May 28, 2014). The Court of Appeals for the Sixth Circuit has explained that when
an ALJ finds some impairments to be severe and continues the sequential evaluation process, as
is the case here, it is “legally irrelevant” that other impairments are determined to be nonsevere,
because “the ALJ must consider both severe and nonsevere impairments in the subsequent
steps.” McGlothin v. Comm’r of Soc. Sec., 299 F. App’x 516, 522 (6th Cir. 2008) (citation
omitted); see 20 C.F.R. § 404.1545(a)(2) (“We will consider all of your medically determinable
impairments of which we are aware, including your medically determinable impairments that are
not ‘severe’ . . . when we assess your residual functional capacity.”). Here, the ALJ continued
the sequential evaluation by considering all of the Plaintiff’s impairments in assessing his RFC.
[Tr. 21] (“[T]he undersigned has considered all symptoms and the extent to which these
symptoms can reasonably be accepted as consistent with the objective medical evidence and
other evidence. . . .”).
Therefore, the Court finds that the ALJ did not commit reversible error at step two of the
sequential evaluation, and the Plaintiff’s argument to the contrary is not well-taken.

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B.

Consultative Examiner Jeffery Uzzle, M.D.

Next, the Plaintiff argues that the ALJ should have given greater weight to the opinion of
Dr. Uzzle.
The Plaintiff obtained an Independent Medical Evaluation from Dr. Uzzle on November
20, 2014, for the purpose of securing an opinion on whether the Plaintiff had the ability to:
maintain employment on either a full-time or part-time basis, abstain from missing workdays,
maintain a normal workday without interruptions, work at a consistent pace, and work without
excessive rest periods. [Tr. 599]. Dr. Uzzle opined that the Plaintiff is not able to work an eighthour workday in any type of employment, would miss work more than two days per month,
could not maintain a normal workday without interruptions, and could not perform work at a
consistent pace without an unreasonable number and lengthy periods of rest. [Tr. 601]. Dr.
Uzzle based his opinion on the Plaintiff’s “complex” “physical and psychological” impairments
and conditions. [Id.].
In the disability determination, the ALJ assigned “little weight” to Dr. Uzzle’s opinion
because he did not provide a functional evaluation of the Plaintiff’s abilities. [Tr. 24]. The ALJ
found that Dr. Uzzle’s opinion only consisted of conclusory statements that the Plaintiff could
not work, was speculative, and was a vocational opinion that Dr. Uzzle was unqualified to make.
[Id.]. In addition, the ALJ found that Dr. Uzzle’s conclusion that the Plaintiff could not work
was an issue reserved for the Commissioner’s determination. [Id.].
The Plaintiff submits that the ALJ did not provide specific reasons for the weight
assigned to Dr. Uzzle’s opinion, and that Dr. Uzzle’s opinion is more than a vocational opinion,
but is a “medical opinion” because it is based upon a complete review of the Plaintiff’s medical
history. [Doc. 13-1 at 6].
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The Commissioner counters that Dr. Uzzle’s opinion was not a medical opinion because
it opined on an issue reserved to the Commissioner, and therefore, the opinion was not due any
particular deference. [Doc. 15 at 9].
“Medical opinions” are defined as statements from “acceptable medical sources that
reflect judgments about the nature and severity of your impairment(s), including your symptoms,
diagnosis and prognosis, what you can still do despite impairment(s), and your physical or
mental restrictions.”

20 C.F.R. § 404.1527(a)(2).

While medical opinions from one-time

examiners are not due any “special degree of deference,” Barker v. Shalala, 40 F.3d 789, 794
(6th Cir. 1994), their opinions must be considered, 20 C.F.R. § 404.1527(b). The weight such
opinions are entitled to will depend on the supportability of the opinion, consistency of the
opinion with other evidence in the record, specialization of the examining source, and other
factors which may support or undermine the opinion. § 404.1527(c)(1)-(6). Moreover, opinions
on certain issues, such as whether a claimant is “unable to work,” are not medical opinions, “but
are, instead, opinions on issues reserved to the Commissioner because they are administrative
findings that are dispositive of a case.” § 404.1527(d), -(1). Accordingly, opinions on issues
reserved to the Commissioner are not given any special significance. § 404.1527(d)(3).
In the instant matter, the Court finds the ALJ properly weighed Dr. Uzzle’s opinion.
With regard to Dr. Uzzle’s conclusion that the Plaintiff is not able to maintain any type of
employment, the Court finds that the ALJ properly found that the matter was an issue reserved to
the Commissioner. See Turner v. Comm’r of Soc. Sec., 381 F. App’x 488, 493 (6th Cir. 2010)
(“Dr. Wright’s statement that Turner was not ‘currently capable of a full-time 8–hour workload’
was simply an alternate way of restating his opinion that Turner was ‘unable to work.’ It was
thus an opinion on an issue reserved to the Commissioner and was not entitled to any
11

deference.”). As to Dr. Uzzle’s findings that the Plaintiff would miss work more than two days
per month, could not maintain a normal workday without interruptions, and could not perform
work at a consistent pace without an unreasonable number and lengthy rest periods, the Court
agrees that these findings are speculative at best. “The better explanation a source provides for
an opinion,” and the more relevant evidence a source gives to support the opinion, “particularly
medical signs and laboratory findings,” the more weight the opinion will be given. 20 C.F.R. §
404.1527(c)(3). Here, Dr. Uzzle provided no explanation for his findings other than to say that
they are based upon the Plaintiff’s physical and psychiatric impairments. Dr. Uzzle’s reasoning
amounts to conclusory statements that are not entitled to any significant deference. The Court
also observes that “the more consistent an opinion is with the record as a whole, the more
weight” the opinion will receive. § 404.1527(c)(4). In this case, six other medical sources1
opined far less restrictive limitations than those found by Dr. Uzzle. [See Tr. 87-94, 108-111,
111-113, 466-67, 607-16, 618-28]. The ALJ assigned great weight to these other opinions [Tr.
24-25] with no objection from the Plaintiff. The Court has not found, and the Plaintiff has not
shown, any particular evidence that supports Dr. Uzzle’s findings or undermines the ALJ’s
decision to assign greater weight to these other opinions of record.
The Plaintiff suggests that Dr. Uzzle’s opinion was entitled to more weight because he
routinely provides consultative examinations on behalf of the Social Security Administration and
had reviewed all of the Plaintiff’s medical records. [Doc. 13-1 at 6]. While this may well be
true, the ALJ “is not bound by conclusory statements of doctors, particularly where they are

1

The additional medical sources include two non-examining state agency physicians, one non-examining state
agency psychiatrist, two state agency consultative examiners (a physician and a psychiatrist), and the Plaintiff’s
treating chiropractor. The Court also notes that Plaintiff’s counsel remarked during the first administrative hearing
that that he was unable to secure a medical opinion from one of the Plaintiff’s doctors “because a lot times the
primary care doctors are reluctant to do those.” [Tr. 39].

12

unsupported by detailed objective criteria and documentation.” Cohen v. Sec’y of Dep’t of
Health & Human Servs., 964 F.2d 524, 528 (6th Cir. 1992) (citing King v. Heckler, 742 F.2d
968, 973 (6th Cir. 1984)).
Accordingly, the Court finds the Plaintiff’s allegation of error in this regard is without
merit.

C.

Credibility Determination

Finally, the Plaintiff argues that the ALJ erred in assessing the Plaintiff’s credibility.
“In evaluating complaints of pain, an ALJ may properly consider the credibility of the
claimant.” Walters, 127 F.3d at 531. Because a claimant’s statements as to “pain or other
symptoms will not alone establish the [the claimant] is disabled,” 20 C.F.R. § 404.1529(a), the
Sixth Circuit has articulated the standard for evaluating subjective complaints as follows:
First, we examine whether there is objective medical evidence in
an underlying medical condition. If there is, we then examine (1)
whether objective medical evidence confirms the severity of the
alleged pain arising from the condition; or (2) whether the
objectively established medical condition is of such a severity that
it can reasonably be expected to produce the alleged disabling
pain.
Duncan v. Sec. of Health & Human Servs., 801 F.2d 847, 853 (6th Cir. 1986). In regard to this
second prong, “adjudicator must make a finding on the credibility of the individual’s statements
based on a consideration of the entire case record.” Soc. Sec. Rul. 96-7p, 1996 WL 374186, at
*2 (July 2, 1996).
In deciding whether the objective evidence confirms the severity of the alleged pain or
whether the objectively established medical condition is of such a severity that it can reasonably
be expected to produce the alleged disabling pain, the ALJ must consider the following factors:
13

(i) daily activities; (ii) the location, frequency, and intensity of the pain or other symptoms; (iii)
precipitating and aggravating factors; (iv) the type, dosage, effectiveness, and side effects of any
medication you take or have taken to alleviate your pain or other symptoms; (v) treatment, other
than medication, received or have received for relief of pain or other symptoms; (vi) any
measures that are used or were used to relieve pain or other symptoms; (vii) other factors
concerning functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. §
404.1529(c)(3).
An ALJ’s findings regarding credibility “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.
Here, the ALJ discounted the Plaintiff’s subjective complaints, in part, due to: (1) the
Plaintiff’s failure to adhere to his primary care provider’s advice to stop smoking, and (2)
inconsistent statements made by the Plaintiff during the administrative hearings with regard to
the need for back surgery. [Tr. 23-24]. The ALJ noted that the Plaintiff was advised to stop
smoking due to high blood pressure, but a treatment note from June 2013 revealed that he
continued to smoke. [Tr. 23]. The ALJ further noted that during the first hearing, the Plaintiff
testified that he presented to a Dr. Fry for back surgery but the doctor declined to perform the
surgery because the Plaintiff had too many white blood cells at the time. [Tr. 24]. The ALJ
observed that in the second hearing, the Plaintiff denied making any statement with regard to
needing “surgery.” [Id.]. The ALJ also noted that the record was held open so that the Plaintiff
could obtain Dr. Fry’s records, but none were submitted. [Id.].
As to the Plaintiff’s failure to stop smoking, he argues that subsequent records from other
treatment providers reveal that he in fact made an effort to quit smoking. [Doc. 13 at 8] (citing
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Tr. 587, 596, 607-08). Additionally, the Plaintiff explains that during the second administrative
hearing, he clarified that when he said back “surgery,” he meant that he was supposed to receive
epidural injections but used the term “surgery” because he was going to be “put under.” [Id.].
Moreover, the Plaintiff argues that he also clarified during the hearing that Dr. Fry did not
perform the procedure due to an infection in the Plaintiff’s bloodstream but that Dr. Fry’s records
did not indicate the reason why the procedure was not performed. [Id.].
The Commissioner maintains that the ALJ properly discounted the Plaintiff’s credibility
for a number of additional reasons, including non-compliance with other treatment
recommendations, the Plaintiff’s reported daily living activities, and other inconsistencies noted
within the record. [Doc. 15 at 7-8]. With specific regard to the Plaintiff’s statements about
needing back surgery, the Commissioner argues that in addition to testifying in the first instance
that “surgery” was required, the Plaintiff also claimed in a September 2014 disability report that
he had been scheduled for back “surgery,” which furthers contradicts the Plaintiff’s statements to
the contrary. [Id. at 8].
With regard to the Plaintiff’s alleged inconsistent statements regarding what procedure
was required for his back and why it was not performed, the Court observes that Dr. Fry’s
treatment notes were not made part of the record which precludes the Court from undertaking a
meaningful review of the parties’ contentions. The Court finds, however, that it need not resolve
this conflict because even assuming that the ALJ erred, the error would be found harmless
because the ALJ provided a number of other appropriate reasons for discounting the Plaintiff’s
credibility. See Wilson, 378 F.3d at 546-47 (holding that 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
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rights because of the [ALJ]’s procedural lapses”). For this same reason, the Court finds that later
treatment notes that remark on the Plaintiff’s efforts to quit smoking are insufficient to overcome
the additional reasons cited by the ALJ for discrediting the Plaintiff’s credibility.
The ALJ found that the Plaintiff’s daily living activities as described in the Plaintiff’s
Function Report, Work History Report, and as reported to a consultative examiner in January
2015, negated the severity of the Plaintiff’s disabling symptoms and limitations. [Tr. 23] (citing
Exhibits 4E, 5E, & 20F). These activities include the Plaintiff’s ability to perform personal care
needs, mow the yard using a riding mower, driving, going out alone, grocery shopping, going to
the movies, managing finances, reading, using the computer, texting on the phone, watching his
nephew at the park, and preparing simple meals. [Id.]. A claimant’s ability to perform daily
activates is one factor that may be appropriately considered in assessing a claimant’s subjective
complaints of pain. 20 C.F.R. § 404.1529(c)(4)(i). Thus, the ALJ properly recognized that the
Plaintiff’s reported activities weakened his assertions of disabling symptoms and limitations. See
Meuzelaar v. Comm’r of Soc. Sec., No. 15-2341, 2016 WL 2849305, at *3 (6th Cir. 2016)
(“Because much of Meuzelaar’s ‘own testimony suggest[ed] . . . [she] is capable of far more than
she asserted,’ the parts of her testimony to the contrary undermined her credibility.”) (internal
citation to the administrative record omitted).
In addition, the ALJ properly considered the Plaintiff’s compliance with treatment
recommendations. [Tr. 23]. For example, the ALJ observed that the Plaintiff was noncompliant
with recommendations of physical therapy to address his complaints of back pain. [Tr. 646]. In
addition, the Plaintiff’s orthopedist recommended that he follow-up with Dr. Yoakum, a spine
specialist, to address complaints of radiculopathy pain. [Tr. 712]. The Plaintiff, however, failed
to do so. [Tr. 710, 713]. Moreover, the Plaintiff’s primary care provider, Robert Dowell, N.P.,
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recommended a low sodium diet due to the Plaintiff’s high blood pressure, but it was noted that
the Plaintiff did not adhere to this advice. [Tr. 391]. Further, Mr. Dowell described the
Plaintiff’s medication compliance as “fair.” [Id.]. It was also noted that the Plaintiff was
noncompliant in taking his diabetic medication. [Tr. 394]. The Plaintiff’s failure to adhere to
medical advice is an appropriate factor that weighs against a favorable credibility finding. See
Lawson v. Comm’r of Soc. Sec., 192 F. App’x 521, 527-28 (6th Cir.2006) (upholding a denial of
benefits where “the ALJ held that ‘Lawson’s credibility with respect to her symptoms and
impairments in significantly diminished by her failure to follow-up with recommendations of
treating physicians to seek psychiatric or mental health treatment [and] failure to take
medications as prescribed . . . .’”).
Lastly, the ALJ acted appropriately when she discounted the Plaintiff’s credibility based
upon inconsistent statements within the record. [Tr. 24]. The ALJ observed that the Plaintiff
reported selling his heating and air conditioning business in January 2014, but a June 2014
treatment note stated that he still owned the company. [Tr. 551]. The ALJ also cited to a
number of statements made by the Plaintiff that were not supported by the record. The Plaintiff
testified that his diabetes caused sores on his feet and legs that would not heal, but the medical
evidence fails to substantiate the Plaintiff’s allegations. The Plaintiff also testified that he was
supposed to have knee surgery but that the anesthesiologist would not treat him until his lung
doctor cleared him for surgery. [Tr. 55]. However, treatment notes from pulmonologist Rajiv
Dhand M.D., and orthopedic surgeon Ryan Dabs, M.D., fail to corroborate the Plaintiff’s claim.
[Tr. 702-08, 709-716]. Moreover, the Plaintiff testified that he had panic attacks daily along
with crying spells. [Tr. 64-65]. In April 2014, however, the Plaintiff requested to be taken off of
Xanax because he was “[f]eeling fine now.” [Tr. 555]. “Discounting credibility to a certain
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degree is appropriate where an ALJ finds contradictions among medical reports, claimant’s
testimony, and other evidence.” Walters, 127 F.3d at 531
In sum, the Court finds that the ALJ gave numerous other reasons, supported by the
record, for determining that the Plaintiff’s subjective allegations were not entirely credible.
Accordingly, the Court finds that the ALJ’s overall credibility determination is supported by
substantial evidence, and the Plaintiff’s contention to the contrary is not well-taken.

VI.

CONCLUSION
Based upon the foregoing, it is hereby ORDERED that the Plaintiff’s Motion for

Summary Judgment [Doc. 13] be DENIED, and the Commissioner’s Motion for Summary
Judgment [Doc. 14] be GRANTED. The Clerk of Court will be directed to CLOSE this case.
ORDER ACCORDINGLY.
ENTER:

United States Magistrate Judge

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