Irminger v. Social Security Administration, Commissioner of (TV1)

Filing 18

MEMORANDUM OPINION: the Plaintiff's Motion for Summary Judgment [Doc. 11] will be DENIED, and the Commissioner's Motion for Summary Judgment [Doc. 16] will be GRANTED. The decision of the Commissioner will be AFFIRMED. The Clerk of Court will be directed to CLOSE this case. Signed by Magistrate Judge C Clifford Shirley, Jr on September 26, 2017. (AYB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
ELISA D. IRMINGER,
Plaintiff,
v.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.

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No. 3:16-CV-137-CCS

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. 13]. Now before the Court
is the Plaintiff’s Motion for Summary Judgment and Memorandum in Support [Docs. 11 & 12]
and the Defendant’s Motion for Summary Judgment and Memorandum in Support [Docs. 16 &
17]. Elise D. Irminger (“the Plaintiff”) seeks judicial review of the decision of the Administrative
Law Judge (“the ALJ”), the final decision of the Defendant Nancy A. Berryhill, Acting
Commissioner of Social Security (“the Commissioner”). For the reasons that follow, the Court
will DENY the Plaintiff’s motion, and GRANT the Commissioner’s motion.
I.

PROCEDURAL HISTORY
On March 20, 2012, the Plaintiff filed an application for disability insurance benefits

pursuant to Title II of the Social Security Act, 42 U.S.C. § 401 et seq., claiming a period of
disability which began February 3, 2010. [Tr. 34, 155-57]. After her application was denied

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During the pendency of this case, Nancy A. Berryhill replaced Acting Commissioner
Carolyn W. Colvin. Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is
substituted as the Defendant in this case.

initially and upon reconsideration, the Plaintiff requested a hearing. [Tr. 122]. A hearing was held
before the ALJ on May 1, 2014 [Tr. 53-101], and on August 21, 2014, the ALJ found that the
Plaintiff was not “disabled” [Tr. 29-52]. The Appeals Council denied the Plaintiff’s request for
review [Tr. 9-14], and the ALJ’s decision became the final decision of the Commissioner.
Having exhausted her administrative remedies, the Plaintiff filed a Complaint with this
Court on February 24, 2016, seeking judicial review of the Commissioner’s final decision under
Section 405(g) of the Social Security Act. [Doc. 1]. The parties have filed competing dispositive
motions, and this matter is now ripe for adjudication.
II.

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’s decision
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, and
whether the ALJ’s findings are supported by substantial evidence. Blakley v. Comm’r of Soc. Sec.,
581 F.3d 399, 405 (6th Cir. 2009) (citation omitted); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,
544 (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) (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 (6th Cir. 1986).
The substantial evidence standard is intended to create a “‘zone of choice’ within which the
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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) (citation omitted).
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) (citation omitted).
III.

ANALYSIS
“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.
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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.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (citing 20 C.F.R. § 404.1520).
A claimant’s residual functional capacity (“RFC”) is assessed between steps three and four
and is “based on all the relevant medical and other evidence in your case record.” 20 C.F.R. §
404.1520(a)(4), -(e).

An RFC is the most a claimant can do despite his limitations.

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404.1545(a)(1). The claimant bears the burden of proof at the first four steps. Walters, 127 F.3d
525. 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)).
The Plaintiff contends that the ALJ committed two errors. First, the Plaintiff submits that
her RFC is not supported by substantial evidence because the ALJ failed to properly weigh the
opinion of her treating physician, Robert Kasprzak, D.O., and failed to identify the substantial
evidence that supports the specific limitations incorporated into the Plaintiff’s RFC. [Doc. 12 at
14-15]. Second, the Plaintiff maintains that the ALJ failed to properly assess the Plaintiff’s
credibility. [Id. at 15]. The Court will address each argument in turn.
A.

Treating Physician, Robert Kasprzak, D.O.

Dr. Kasprzak has been the Plaintiff’s primary care physician since March 2010. [Tr. 362].
On June 12, 2012, Dr. Kasprzak completed a “Multiple Impairment Questionnaire,” wherein he
opined on the Plaintiff’s impairments and their limiting effects. [Tr. 472-79]. The Plaintiff’s
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diagnoses included fibromyalgia, chronic depression, migraine headaches, irritable bowel
syndrome (“IBS”), and interstitial cystitis. [Tr. 472]. These diagnoses were based upon a review
of examination findings made by other treating specialists. [Tr. 472-73]. Dr. Kasprzak noted that
the largely negative laboratory and MRI results yielded by these specialists were “in keeping” with
fibromyalgia, migraine headaches, and gastrointestinal problems.

[Id.].

The Plaintiff also

experienced chronic, moderate pain in her right arm, shoulder, and neck. [Tr. 473-74].
In terms of functional limitations, Dr. Kasprzak opined that in an eight-hour workday, the
Plaintiff could sit for six hours and stand and/or walk up to one hour, but would need to move
around every hour for at least five minutes. [Tr. 474-75]. The Plaintiff could occasionally lift or
carry up to 10 pounds and would be moderately-to-markedly limited doing repetitive hand
movements, such as reaching, handling, and fingering. [Tr. 475-76]. She would also need to avoid
fumes, extreme temperatures, heights, and activities involving pushing, pulling, kneeling, bending,
and stooping. [Tr. 476, 478]. Dr. Kasprzak concluded that the Plaintiff’s frequent pain and other
symptoms would interfere with her ability to maintain a full-time competitive job, even one
involving low stress, on a sustained basis, and she would be required to take unscheduled breaks
every hour for at least five minutes and would likely be absent from work more than three times a
month. [Tr. 476-78]. Dr. Kasprzak followed-up with a letter on July 25, 2013, noting that the
Plaintiff’s condition remained the same and her symptoms had recently flared-up as a result of her
pregnancy and subsequent delivery. [Tr. 481].
In the disability determination, the ALJ concluded that the Plaintiff could perform light
work as defined in 20 C.F.R. § 404.1567(b), except she cannot tolerate exposure to pulmonary
irritants, she is capable of moderate stress jobs but would need a break from her workplace when
she gets a headache, and she can perform basic work activities and would be absent from the
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workplace one time a month. [Tr. 39]. In assessing the Plaintiff’s RFC, the ALJ assigned “no
weight” to Dr. Kasprzak’s opinion. [Tr. 44]. The ALJ found that the limitations assessed therein
were not supported by the physician’s treatment notes which consistently indicated that the
Plaintiff appeared in “no acute distress.” [Tr. 44]. Moreover, the ALJ found that the opinion
reflected, almost verbatim, the Plaintiff’s subjective account of her abilities and symptoms. [Id.].
On this basis, the ALJ concluded that the limitations appeared to be assessed out of sympathy for
the Plaintiff rather than objective medical evidence. [Id.].
Under the Social Security Act and its implementing regulations, if a treating physician’s
opinion as to the nature and severity of an impairment is (1) well-supported by medically
acceptable clinical and laboratory diagnostic techniques and (2) 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). When an opinion does not garner controlling weight, the appropriate weight to be
given to an opinion will be determined based upon the 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. § 404.1527(c)(1)(6).
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. §
404.1527(c)(2). A decision denying benefits “must contain specific reasons for the weight given
to the treating source’s medical opinion, supported by evidence in the case record, and must be
sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to
the treating source’s medical opinion and the reasons for the weight.” Soc. Sec. Rul. 96-2p, 1996
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WL 374188 at *5 (July 2, 1996). Nonetheless, the ultimate decision of disability rests with the
ALJ. See King v. Heckler, 742 F.2d 968, 973 (6th Cir. 1984); Sullenger v. Comm’r of Soc. Sec.,
255 F. App’x 988, 992 (6th Cir. 2007).
The Plaintiff argues that the ALJ failed to identify any substantial evidence that
contradicted Dr. Kasprzak’s opinion and argues that appearing in “no acute distress” during office
visits does not amount to “good reason.” [Doc. 12 at 16, 18, 21]. The Plaintiff submits that the
ALJ’s assignment of “great weight” to the opinion of treating neurologist Timothy Braden, M.D.,
and “some weight” to the opinions from the non-examining state agency physicians does not
constitute substantial evidence that contradicts Dr. Kasprzak’s opinion, because Dr. Braden’s
opinion only addressed limitations due to the Plaintiff’s headaches and the non-examining state
agency physicians found the Plaintiff’s file contained insufficient evidence to find the Plaintiff had
any severe impairments. [Id.]. The Court is not persuaded by the Plaintiff’s interpretation of the
evidence.
In reaching this conclusion, the Court finds that the Plaintiff’s appearance during
examinations, i.e., findings of “no acute distress,” are relevant and appropriate considerations for
the ALJ to take into account when assessing a medical opinion. See Shepherd v. Colvin, No. 7:15CV-100-KKC, 2017 WL 1179954, at *2 (E.D. Ky. Mar. 29, 2017) (finding treatment notes that
documented “no acute distress” and other normal examination findings amounted to “good reason”
by the ALJ for rejecting a treating physician’s opinion); see also Leeman v. Comm’r of Soc. Sec.,
449 F. App’x 496, 497 (6th Cir. 2011) (“ALJs may discount treating-physician opinions that are
inconsistent with substantial evidence in the record, like the physician’s own treatment notes.”).
Moreover, and contrary to the Plaintiff’s assertion, the ALJ’s decision identifies evidence
that contradicts Dr. Kasprzak’s opinion. In this regard, the ALJ gave “great weight” to Dr.
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Braden’s finding that the Plaintiff could handle moderate stress, that her migraine headaches did
not produce any complicated factors, and that she would only be absent from the workplace about
once a month. [Tr. 44, 274-79]. Although Dr. Braden only opined on the severity and limiting
effect of the Plaintiff’s migraine headaches, his opinion constitutes substantial evidence that
undermines the opinion of Dr. Kasprzak who assessed limitations, in part, on the basis of the
Plaintiff’s migraine headaches. [Tr. 472-73, 478]; see Swett v. Comm’r of Soc. Sec., 886 F. Supp.
2d 656, 660 (S.D. Ohio 2012) (“Where there are conflicting opinions from various medical
sources, it is the ALJ’s function to evaluate the medical evidence and determine Plaintiffs’ RFC.”)
(citing Webb v. Comm’r of Soc. Sec., 368 F.3d 629, 633 (6th Cir. 2004)).
As to the other impairments Dr. Kasprzak noted would produce work-related limitations,
specifically fibromyalgia and gastrointestinal problems, the ALJ’s decision discussed in great
detail that there was nothing in the medical record establishing the existence of fibromyalgia under
the criteria set forth in Social Security Ruling 12-2p, 2012 WL 3104869, at *2-3 (July 25, 2012),
which requires that a claimant satisfy the 1990 American College of Rheumatology (“ACR”)
Criteria for the Classification of Fibromyalgia or the 2010 ACR Preliminary Diagnostic Criteria.
[Tr. 35]. Indeed, treating rheumatologist James Burns, M.D., specifically declined to make a
definitive diagnosis of fibromyalgia (or any rheumatology disorder) and was of the opinion that
the Plaintiff would not qualify for disability benefits “based on fibromyalgia.”2 [Tr. 35, 660, 667].

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The Plaintiff mistakenly submits that Dr. Burns diagnosed fibromyalgia during a
treatment visit on October 6, 2011. [See Doc. 12 at 10-11]. Dr. Burns noted that “[c]urrent
information is more likely to represent fibromyalgia,” but remained of the opinion that a definitive
diagnosis could not be reached as of February 24, 2012. [Tr. 660, 664]. The ALJ acknowledged
findings made by Dr. Burns and Dr. Kasprzak as to complaints of pain and tenderness upon
examination at times. [Tr. 35]. But as concluded by the ALJ, the medical evidence does not meet
the requisite diagnostic criteria for fibromyalgia as a medical determinable impairment.
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The ALJ correctly observed that there was no evidence that the Plaintiff met the requisite
diagnostic criteria, including the lack of positive tender point testing or areas of persistent
tenderness for a three-month period. [Tr. 35 (citing Sec. Sec. Rul. 12-2p, 2012 WL 3104869, at
*2)]. The ALJ observed that Dr. Kasprzak’s treatment notes mentioned fibromyalgia in a cursory
manner and that his medical opinion attributed negative laboratory and MRI testing as “in keeping”
with fibromyalgia. [Tr. 35]. But as the ALJ correctly surmised, “This information is not sufficient
to establish the existence of fibromyalgia” and a diagnosis alone does not establish fibromyalgia
as a medically determinable impairment. [Tr. 35]; see Vance v. Comm’r of Soc. Sec., 260 F. App’x
801, 806 (6th Cir. 2008) (“[A] diagnosis of fibromyalgia does not automatically entitle [a claimant]
to disability benefits.”) (emphasis in original).
Similarly, the ALJ sufficiently discussed the medical evidence pertaining to the Plaintiff’s
gastrointestinal problems, including IBS, gastritis/colitis, duodenal ulcers, and mild biliary
dysfunction, and she reasonably concluded that these aliments appeared to be acute conditions that
resolve or remained intermittent. [Tr. 35-36]. The ALJ discussed the relevant medical records,
including those from treating gastroenterologist Meade Edmunds, M.D., and found that the
Plaintiff’s gastrointestinal status appeared stable, testing generally unremarkable, and
improvement was shown with the use of probiotics and discontinuing Meloxicam which was
linked to a more recent bout of abdominal pain. [Tr. 36, 427, 429, 437-45, 492-97, 609, 619, 626,
645].
The ALJ’s finding regarding fibromyalgia and gastrointestinal problems is also supported
by the non-examining state agency physicians who found the record lacked sufficient evidence to
establish a medical determinable impairment that was severe. [Tr. 373, 405]. The ALJ gave their
opinions “some weight,” departing from their findings only with respect to the Plaintiff’s migraine
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headaches which the ALJ found posed more than a minimal limitation. [Tr. 44].
The Plaintiff further suggest that the ALJ substituted his own unqualified assessment of
the record because in rejecting Dr. Kasprzak’s opinion, the ALJ did not cite to any other medical
opinion that specifically opined that the Plaintiff could perform the exertional demands of light
work. [Doc. 12 at 19]. “The Sixth Circuit has repeatedly upheld ALJ decisions where the ALJ
rejected medical opinion testimony and determined RFC based on objective medical evidence and
non-medical evidence.” Henderson v. Comm’r of Soc. Sec., No. 1:08 CV 2080, 2010 WL 750222,
at *2 (N.D. Ohio Mar. 2, 2010) (rejecting the argument that an ALJ’s RFC determination must be
based on a medical advisor’s assessment). “Although the RFC must be supported by evidence of
record, it need not correspond to, or even be based on any specific medical opinion.” Simon v.
Comm’r of Soc. Sec., No. 2:16-CV-259, 2017 WL 1017733, at *6 (S.D. Ohio Mar. 16, 2017); see
Thomas v. Comm’r of Soc. Sec., No. 11-15450, 2013 WL 1250721, at *4 (E.D. Mich. Feb. 25,
2013) (“The determination of an individual’s RFC need not be based on a medical opinion because
it is a determination reserved to the ALJ as fact-finder for the Commissioner.”), adopted by, No.
11-CV-15450, 2013 WL 1250649 (E.D. Mich. Mar. 26, 2013), aff’d, 550 F. App’x 289 (6th Cir.
2014). Indeed, the ALJ alone is tasked with assessing a claimant’s RFC, 42 U.S.C. § 423(d)(5)(B),
based on “specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily
activities, observations),” Soc. Sec. Rul. 96-8p, 1996 WL 374184, at *7 (July 2, 1996). The ALJ’s
discussion of the medical evidence, including treatment rendered by other specialists, as well as
activities the Plaintiff engaged in, which will be addressed more fully below, provides a reasoned
explanation for the ALJ’s finding that the Plaintiff could perform light work.

See 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
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medical diagnostics or if it is inconsistent with the record.”).
Finally, the Plaintiff takes issue with the ALJ’s conclusion that Dr. Kasprzak’s opinion was
rendered out of sympathy for the Plaintiff because the opinion appeared to be based on the
Plaintiff’s subjective complaints. [Doc. 12 at 16-17]. The Court observes that Dr. Kasprzak’s
opinion does reflect many of the Plaintiff’s self-reported symptoms and limitations expressed
during a May 2012 office visit in which the Plaintiff presented to Dr. Kasprzak for the purpose of
completing disability paperwork. [Compare Tr. 304-06 with Tr. 472-79]. Regardless, the ALJ’s
ultimate conclusion that the opinion was not supported by Dr. Kasprzak’s treatment notes is
substantiated by the record and constitutes “good reason.” See Leeman, 449 F. App’x at 497.
While Dr. Kasprzak purported to base his opinion on examinations findings made by the Plaintiff’s
treating specialists, many of these specialists, as discussed above, opined mild effects from the
Plaintiff’s migraine headaches, improved gastrointestinal problems, and an inconclusive diagnosis
of fibromyalgia.
“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.’” Longworth v. Comm’r Soc. Sec. Admin., 402 F.3d 591, 595 (6th Cir. 2005) (quoting
Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004)). The Court finds that the ALJ’s
decision identifies substantial evidence that contradicts Dr. Kasprzak’s opinion, as well as his
interpretation of the medical evidence of record. Accordingly, the Court finds the Plaintiff’s
argument that the ALJ did not properly weigh Dr. Kasprzak’s opinion to be without merit.
B.

Credibility Determination

The Plaintiff also maintains that substantial evidence does support the ALJ’s finding that
the Plaintiff’s subjective allegations are not entirely credible.
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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. Therefore, “discounting credibility to a certain degree is
appropriate where an ALJ finds contradictions among the medical reports, claimant’s testimony,
and other evidence.” Id. Nonetheless, the ALJ’s finding must be supported by substantial
evidence. Id.
In evaluating a claimant’s subjective allegations as to the intensity and persistence of
symptoms, the ALJ must consider the following factors: (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. § 1529(c)(3).
The ALJ found the Plaintiff’s “statements concerning the intensity, persistence and limiting
effects of [her] symptoms are not entirely credible” for several reasons, including that the medical
evidence demonstrated that she did not suffer from certain aliments, she showed improvement over
the course of treatment for her impairments, and she engaged in daily living activities that were
not consistent with a finding of disability. [Tr. 42-44].
The Plaintiff argues that treatment notes documenting that she was in “no acute distress”
does not support a finding of “not disabled” where the record contains evidence that she suffers
from carpal tunnel syndrome, fibromyalgia, and gastrointestinal problems. [Doc. 12 at 21]. But
the ALJ addressed these alleged impairments, finding no positive diagnosis of fibromyalgia as
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opined by the Plaintiff’s treating rheumatologist, Dr. Burns. [Tr. 35, 660, 664]. Moreover, the
record likewise does not contain a positive diagnosis of carpal tunnel syndrome. The ALJ observed
that diagnostic test results could not identify an underlying basis for the Plaintiff’s upper extremity
and hand pain, and there was no indication that the pain persisted for the requisite twelve-month
period. [Tr. 34-35]. The only evidence cited by the Plaintiff to the contrary is a treatment note by
Dr. Burns, indicating positive right-sided Phalen’s and Tinel’s signs. [Doc. 12 at 21 (citing Tr.
666)]. But again, Dr. Burns opined that he could not reach any conclusive diagnoses. [Tr. 660].
In addition, the Plaintiff’s arguments that she suffers from gastrointestinal issues was also
sufficiently addressed by the ALJ who found that many of that the Plaintiff’s conditions were acute
conditions that resolved or remained intermittent. [Tr. 35-36]. Furthermore, the fact that the
Plaintiff appeared in “no acute distress” during office visits was simply one factor the ALJ
considered in her overall determination that the record simply did not substantiate the gravity of
the Plaintiff’s claims.
The Plaintiff also contends that she gave uncontradicted testimony that her activities of
daily living are severely limited. [Doc. 12 at 22]. But the ALJ noted that the Plaintiff traveled
out-of-state for a camping trip and almost exclusively cares for her young child during the day
which requires lifting and caring up to twenty pounds, as well as bending, squatting, and other
activities. [Tr. 43]. While these activities may not amount to substantial gainful activity, and the
Plaintiff should not be chastised for providing the necessary care of a young child, it does
demonstrate that the Plaintiff is at least capable of functioning physically and doing activities in
her personal life that she has otherwise alleged she cannot perform in the workplace.
The ALJ’s discussion of the medical evidence, opinions offered from treating physicians,
the lack of conclusive diagnoses for impairments which the Plaintiff claims are debilitating, and
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some of the Plaintiff’s daily living activities, taken together, amounts to substantial evidence that
supports the ALJ’s decision to find the Plaintiff less than fully credible. Therefore, the Court finds
the Plaintiff’s assignment of error in this regard is not well-taken.
VI.

CONCLUSION
Based on the foregoing, the Plaintiff’s Motion for Summary Judgment [Doc. 11] will be

DENIED, and the Commissioner’s Motion for Summary Judgment [Doc. 16] will be GRANTED.
The decision of the Commissioner will be AFFIRMED. The Clerk of Court will be directed to
CLOSE this case.
ORDER ACCORDINGLY.
s/ C. Clifford Shirley, Jr.
United States Magistrate Judge

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