Johnson v. Social Security Administration, Commissioner of
Filing
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MEMORANDUM AND OPINION as set forth in following order. Signed by Magistrate Judge Debra C Poplin on 6/25/19. (ABF)
fUNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
JUDY M. JOHNSON,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
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No. 3:17-cv-374-DCP
MEMORANDUM OPINION
This case is before the undersigned pursuant to 28 U.S.C. § 636(b), Rule 73 of the Federal
Rules of Civil Procedure, and the consent of the parties [Doc. 16]. Now before the Court are
Plaintiff’s Motion for Summary Judgment and Memorandum in Support [Docs. 19 & 19-1] and
Defendant’s Motion for Summary Judgment and Memorandum in Support [Docs. 20 & 21]. Judy
M. Johnson (“Plaintiff”) seeks judicial review of the decision of the Administrative Law Judge
(“the ALJ”), the final decision of Defendant Nancy A. Berryhill (“the Commissioner”). For the
reasons that follow, the Court will DENY Plaintiff’s motion and GRANT the Commissioner’s
motion.
I.
PROCEDURAL HISTORY
On October 26, 2011, Plaintiff filed an application for disability insurance benefits
pursuant to Title II of the Social Security Act, 42 U.S.C. § 401 et seq., as well as supplemental
social security income pursuant to Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq.
[Tr. 10]. After both applications were denied at the initial level of the agency’s review, Plaintiff
did not appeal the decision. [Id.].
Then, on January 24, 2013, Plaintiff filed an application for supplemental security income
benefits pursuant to Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq., claiming a
period of disability that began on January 1, 2007. [Id.]; see [Tr. 86]. The ALJ declined to reopen either of the 2011 applications. [Tr. 10]. After her application was denied initially and upon
reconsideration, Plaintiff requested a hearing before an ALJ. [Tr. 122]. A hearing was held on
July 21, 2015. [Tr. 30–64]. On April 15, 2016, the ALJ found that Plaintiff was not disabled. [Tr.
10–22]. The Appeals Council denied Plaintiff’s request for review on June 20, 2017 [Tr. 1–6],
making the ALJ’s decision the final decision of the Commissioner.
Having exhausted her administrative remedies, Plaintiff filed a Complaint with this Court
on August 23, 2017, 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.
ALJ FINDINGS
The ALJ made the following findings:
1. The claimant has not engaged in substantial gainful activity since
January 24, 2013, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: spine
disorder with grade I spondylolisthesis at L5/S1, osteoarthritis and
bursitis in the left knee, asthma, affective disorder and anxiety
disorder (20 CFR 416.920(c)).
3. 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 416.920(d), 416.925 and 416.926).
4. 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 416.967(b) except she can
lift and carry ten pounds frequently and 20 pounds occasionally. In
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an eight-hour workday, the claimant can sit for eight hours, stand
for four hours and walk for four hours. The claimant is able to
understand, remember and carry out simple and detailed
instructions. She can maintain concentration and persistence for the
above tasks. The claimant is able to adapt to gradual and infrequent
changes in the work setting. She is limited to work that requires
only frequent interactions with the public, co-workers and
supervisors.
5. The claimant is capable of performing past relevant work as a
Companion. This work does not require the performance of workrelated activities precluded by the claimant’s residual functional
capacity (20 CFR 416.965).
6. The claimant has not been under a disability, as defined in the
Social Security Act, since January 24, 2013, the date the application
was filed (20 CFR 416.920(f)).
[Tr. 12–22].
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’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
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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.” 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).
IV.
DISABILITY ELIGIBILITY
“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.”
42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(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.
§§ 423(d)(2)(A) and 1382c(a)(3)(B).
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
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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.
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) and 416.920(a)(4), -(e). An RFC is the most a claimant can do despite his
limitations. §§ 404.1545(a)(1) and 416.945(a)(1).
The claimant 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)).
V.
ANALYSIS
Plaintiff contends that the ALJ’s RFC determination is not supported by substantial
evidence in several regards. First, Plaintiff asserts that the ALJ failed to properly weigh the
medical opinions in her RFC determination, claiming “in general,” that that the ALJ’s weight
determinations are “confusing, scattered, and somewhat arbitrary.” [Doc. 19-1 at 16]. Moreover,
Plaintiff claims that the ALJ failed to properly review the medical opinions in the record, including
the opinion of her treating physician, John Gernert, M.D., consultative examiner Jeffrey Summers,
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M.D., consultative examiner Eva Misra, M.D., and consultative examiner Ellen Denny, Ph.D. [Id.
at 17–20]. Further, Plaintiff claims that although the ALJ afforded great weight to the opinions of
the nonexamining state agency consultants, James Millis, M.D. and Carol Lemeh, M.D., the ALJ
failed to include the environmental limitations assessed in their opinions. [Id. at 21].
Next, Plaintiff challenges the ALJ’s finding that her COPD was not a severe impairment,
as well as the ALJ’s subsequent failure to include any limitations that accounted for Plaintiff’s
respiratory issues. [Id. at 21–24]. Plaintiff also alleges that the ALJ improperly concluded that
she has past relevant work, and that the ALJ’s Step Five determination is not supported by
substantial evidence. [Id. at 24–26]. Lastly, Plaintiff claims that the ALJ improperly failed to
apply the “advanced age” category. [Id. at 26]. The Court will address Plaintiff’s specific
allegations of error in turn.
A.
Medical Opinions
1.
Dr. Gernert
Plaintiff challenges the ALJ’s assignment of little weight to a portion of Dr. Gernert’s
opinion, as well as the subsequent exclusion from the RFC determination of the sitting limitations
assessed in this portion of the opinion. [Doc. 19-1 at 17–18]. However, the Commissioner asserts
that the ALJ properly only afforded great weight to the portions of Dr. Gernert’s opinion which
were supported by the record. [Doc. 21 at 9].
Plaintiff began treatment with Dr. Gernert on June 5, 2013 to address bilateral foot pain
due to her gout. [Tr. 387]. Plaintiff continued to see Dr. Gernert on June 19, 2013 [Tr. 386], and
on July 22, 2013 [Tr. 385]. Then, on October 8, 2013, Dr. Gernert completed a Medical Source
Statement of Plaintiff’s ability to perform work-related activities. [Tr. 378–83]. Dr. Gernert
opined that Plaintiff could sit, stand, and walk for four hours at one time without interruption and
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for four hours total in an eight-hour workday. [Tr. 379]. Additionally, Dr. Gernert found that
Plaintiff did not require the use of a cane to ambulate [Id.], and that she could frequently operate
foot controls with both feet [Tr. 380]. Lastly, Dr. Gernert opined that Plaintiff could frequently
climb stairs and ramps, balance, stoop, kneel, crouch, or crawl, and that she could only
occasionally climb ladders or scaffolds. [Tr. 381].
The ALJ reviewed Dr. Gernert’s opinion and ultimately gave great weight to the portion
of Dr. Gernert’s Medical Source Statement finding that Plaintiff could stand and walk for only
four hours and did not require a cane to ambulate, as these opinions were consistent with the record.
[Tr. 19]. However, the ALJ assigned little weight to Dr. Gernert’s opinion that Plaintiff could not
sit for more than four hours because it was outside the scope of Dr. Gernert’s expertise as a
podiatrist.
[Id.].
The ALJ further noted that Dr. Gernert’s opinion was based on three
examinations in June and July of 2013, that Plaintiff’s bilateral foot pain was controlled with
steroid injections and Voltaren gel, and Plaintiff did not return to see Dr. Gernert. [Id.].
In considering a claim of disability, the ALJ generally must give the opinion of the
claimant’s treating physician “controlling weight.” 20 C.F.R. §§ 404.1527(c); 416.927(c)(2).1
However, the ALJ must do so only if that opinion “is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the] case record.” Id. If the opinion is not given controlling weight, as here, the ALJ
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The treating physician rule has been abrogated as to claims filed on or after March 27,
2017. See 20 C.F.R. §§ 404.1520c; 416.920c (“We will not defer or give any specific evidentiary
weight, including controlling weight, to any medical opinion(s) . . . including those from your
medical sources.”); see also Revisions to Rules Regarding the Evaluation of Medical Evidence, 82
Fed. Reg. 5844-01, 2017 WL 168819, at *5852–57 (Jan. 18, 2017). The new regulations eliminate
the term “treating source,” as well as what is customarily known as the treating physician rule. As
Plaintiff’s application was filed before March 27, 2017, the treating physician rule applies. See
id. §§ 404.1527; 416.927.
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must consider the following factors to determine what weight to give it: “the length of the treatment
relationship and the frequency of examination, the nature and extent of the treatment relationship,
supportability of the opinion, consistency of the opinion with the record as a whole, and the
specialization of the treating source,” as well as “other factors.” Wilson v. Comm’r of Soc. Sec.,
378 F.3d 541, 544 (6th Cir. 2004) (citing 20 C.F.R. § 404.1527).
The ALJ is not required to explain how she considered each of these factors but must
nonetheless give “good reasons” for giving a treating physician’s opinion less than controlling
weight. Francis v. Comm’r of Soc. Sec., 414 F. App’x 802, 804 (6th Cir. 2011); see also Morr v.
Comm’r of Soc. Sec., 616 F. App’x 210, 211 (6th Cir. 2015) (holding “good reasons” must be
provided “that are sufficiently specific to make clear to any subsequent reviewers the weight given
to the treating physician’s opinion and the reasons for that weight”) (citing Wilson, 378 F.3d at
544; 20 C.F.R. §§ 404.1527(c)(2) & 416.927(c)(2)).
Plaintiff asserts that the ALJ’s “reason for this weight determination is nonsensical, as the
ALJ fail[ed] to explain how standing and walking is within the scope of Dr. Gernert’s expertise,
yet somehow sitting is not.” [Doc. 19-1 at 17]. Therefore, Plaintiff claims that the ALJ’s “failure
to adopt this sitting limitation without explanation is improper picking and choosing of [the]
record.” [Id. at 18].
The Commissioner maintains that the ALJ properly considered Dr. Gernert’s specialty in
evaluating the opinion and found that opinion on the ability to sit is not within a podiatrists’
specialization. [Doc. 21 at 10]. Further, the Commissioner alleges that the ALJ also provided
several additional reasons for why she assigned little weight to the opined sitting limitation: that
Dr. Gernert based his opinion on three examinations for bilateral foot pain secondary to gout,
Plaintiff’s pain was subsequently controlled with steroid injections, and Plaintiff never returned to
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Dr. Gernert—although she complained of gout at her consultative examination with Dr. Misra in
November 2013. [Doc. 21 at 10].
“The ALJ may not pick and choose portions of opinions that support his findings without
providing a clear analysis of why certain portions are rejected while other are accepted.” Perez v.
Comm’r of Soc. Sec., No. 1:17-cv-2311, 2018 WL 5620094, at *14 (N.D. Ohio Oct. 30, 2018).
However, in the present case, the ALJ clearly stated her reasoning for assigning little weight to Dr.
Gernert’s opinion regarding Plaintiff’s ability to sit. First, the ALJ considered Dr. Gernert’s
specialty as a podiatrist, and also noted that Plaintiff only had three examinations with Dr. Gernert.
Podiatrists are considered “acceptable medical source[s]” under 20 C.F.R. § 416.913(a) “for
establishing impairments of the foot, or foot and ankle only.” See Patterson v. Colvin, No. 1:14CV-1132, 2015 WL 4644603, at *14 n.5 (N.D. Ohio Aug. 4, 2015). Accordingly, “[a]s a podiatrist,
the scope of [Dr. Gernert’s] medical evaluation was limited to impairments of her feet.” See
Guarente v. Berryhill, No. 16-cv-12003, 2017 WL 3621078, at *6 (D. Mass. Aug. 23, 2017).
Therefore, the ALJ properly found that this opinion on Plaintiff’s ability to sit was outside
of the scope of Dr. Gernert’s expertise as a podiatrist. See, e.g., Milliman v. Berryhill, No. 161279-LPS-MPT, 2017 WL 3912830, at *12 (D. Del. Sept. 7, 2017) (affirming assignment of no
weight to treating physician’s opinion, in part because “[t]he ALJ determined that . . . [the]
podiatrist opined outside the scope of his expertise, especially regarding plaintiff’s functional
limitations [including the ability to sit] and diabetic neuropathy”); Sobolewski v. Apfel, 985 F.
Supp. 300, 312 (E.D. N.Y. Nov. 19, 1997) (“Because Dr. Coombs [a podiatrist] lacked the
qualifications to opine on plaintiff’s capacity to sit or lift, it is clear that, to the extent that his nonmedical opinion purported to discuss plaintiff’s limitations other than as caused by the condition
of her feet, his opinion should have been accorded little weight. Dr. Coombs was simply not
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qualified to opine that plaintiff could sit or lift without limitation . . . .”).
The ALJ also noted that Plaintiff’s gout—her chief complaint causing bilateral foot pain—
was subsequently controlled through treatment. Further, by discussing that Dr. Gernert’s opinion
was based on three examinations over a two-month period, and that Plaintiff failed to return for a
follow-up appointment despite complaining of gout pain, the ALJ properly considered both “the
length of the treatment relationship,” as well as “the nature and extent of the treatment
relationship.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (citing 20 C.F.R.
§ 404.1527).
Accordingly, the Court finds that ALJ provided “good reasons” for giving the opinion of
Plaintiff’s treating podiatrist, Dr. Gernert, less than controlling weight. Francis v. Comm’r of Soc.
Sec., 414 F. App’x 802, 804 (6th Cir. 2011). The ALJ properly considered Dr. Gernert’s expertise
as a podiatrist, as well as Plaintiff’s treatment history and the nature of the treatment relationship.
Therefore, Plaintiff’s allegation of error does not constitute a basis for remand.
2.
Dr. Misra
Plaintiff alleges that the ALJ improperly found that Dr. Misra’s opinion was entitled to
little weight, as “the ALJ’s assertion that Dr. Misra’s opinion was based on [Plaintiff’s] subjective
complaints of gout is simply unfounded and unsubstantiated with the actual medical record, which
indicates plenty of objective findings . . . .” [Doc. 19-1 at 19]. The Commissioner claims that the
ALJ properly resolved an inconsistency in the record, and “identified other evidence that supported
the finding that Plaintiff’s ability to sit, stand, and walk were not as limited as opined by Dr.
Gernert and Dr. Misra.” [Doc. 21 at 10].
Dr. Misra consultatively examined Plaintiff on November 11, 2013. [Tr. 398]. Dr. Misra
performed a physical examination and noted that she reviewed certain medical records. [Tr. 398–
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400]. Dr. Misra opined that Plaintiff retained the capacity to occasionally lift and carry, including
upward pulling, for up to one-third to two-thirds in an eight-hour workday, to a maximum of ten
pounds. [Tr. 400]. Additionally, Dr. Misra found that Plaintiff could frequently lift and carry up
to ten pounds in an eight-hour workday. [Id.]. Lastly, Dr. Misra opined that Plaintiff could stand
or walk without normal breaks for a total of about four hours in an eight-hour workday, as well as
sit without restriction. [Id.].
In the disability decision, the ALJ assigned little weight to Dr. Misra’s opinion, specifically
with regard to the opinion that Plaintiff was limited to standing and walking for a total of only four
hours “because it was based on the claimant’s subjective complaints of ongoing symptoms of gout,
[which] were not supported by the record corroboration.” [Tr. 19]. The ALJ reviewed Plaintiff’s
treatment with Dr. Gernert for treatment of her gout with steroid injections, but noted “no evidence
of continuing treatment or ongoing difficulties.” [Id.]. Further, the ALJ discussed how Dr. Misra’s
opinion was inconsistent with the medical record, including that Plaintiff “was able to stand up
from a chair, and, on and off, the table without difficulty,” that her lungs were clear to auscultation
on physical examination, that Plaintiff had “full range of motion in her lumbar spine and right leg,
with limited range of motion in her left knee,” and that “her straight leg raises were negative as
were the Babinski, Tinel and Romberg testing.” [Tr. 19-20]. Lastly, the ALJ noted that a
pulmonary function test was within normal limits. [Tr. 20].
Opinions from non-treating sources are never assessed for controlling weight but are
evaluated using the regulatory balancing factors set forth in 20 C.F.R. § 416.927(c). Gayheart
v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (citing 20 C.F.R. § 404.1527(c)). These
opinions are weighed “based on the examining relationship (or lack thereof), specialization,
consistency, and supportability.” Id. (citing 20 C.F.R. § 404.1527(c)). “Other factors ‘which tend
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to support or contradict the opinion’ may be considered in assessing any type of medical
opinion.” Id. (quoting 20 C.F.R. § 404.1527(c)(6)). An ALJ is only required to provide good
reason for explaining the weight assigned to the opinion of a “treating source.” 20 C.F.R. §
416.927(c)(2); see Perry v. Comm’r of Soc. Sec., 501 F. App’x 425, 426 (6th Cir. 2012) (“An ALJ
need not ‘give good reasons’ for the weight he assigns opinions from physicians who, like Dr.
Pickering, have examined but not treated a claimant.”).
In fact, opinions from one-time
consultative examiners are not due any special degree of deference. Barker v. Shalala, 40 F.3d
789, 794 (6th Cir. 1994).
Plaintiff contends that the ALJ’s reasoning that Dr. Misra’s opinion was based on
Plaintiff’s subjective allegations of gout is not supported by substantial evidence, as Dr. Misra’s
opinion was based on objective findings. [Doc. 19-1 at 19]. Plaintiff asserts that Dr. Misra
indicated that she had access to medical records, and that her notes “indicated that Plaintiff had a
mild limp, some decreased ROM with her left knee flexion and left ankle dorsiflexion, as well as
a knot on the sole of her foot.” [Id.]. Therefore, Plaintiff maintains that the ALJ rejected Dr.
Misra’s opinion because if Plaintiff was found to be limited to sedentary work based on the opined
walking and sitting restrictions, then she would have been found to be disabled. [Id.].
First, although Dr. Misra detailed that in addition to the physical examination, she reviewed
medical records including Plaintiff’s “EMR” and a “previous consultation,” the ALJ reasonably
found that the opinion was primarily based on Plaintiff’s subjective allegations of pain related to
her gout. [Tr. 400]. Although Plaintiff points to notes of the physical examination indicating that
she had a mild limp and decreased range of motion in her left knee and ankle, Dr. Misra also
indicated that Plaintiff stated that she has gout, that her “last flare-up was a couple of months ago
in her feet,” and that “[s]he ranks the pain 6/10 on the pain scale with medications, [which] may
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all be related to gout.” [Tr. 398]. The Sixth Circuit recently upheld an ALJ’s assignment of less
weight to a consultative examiner’s opinion, as the ALJ found that the opinion was based on the
claimant’s subjective reporting of symptoms, and the opinion was not supported by other objective
evidence. Staymate v. Comm’r of Soc. Sec., 681 F. App’x 462, 467 (6th Cir. 2017). In Staymate,
the Sixth Circuit reiterated that “[w]e have previously found reasoning that a medical opinion
relied too heavily on the claimant’s subjective complaints as adequate to support an ALJ’s decision
to give little weight to the opinion.” Id. (citing Keeler v. Comm’r of Soc. Sec., 511 F. App’x 472,
473 (6th Cir. 2013)).
Further, the ALJ detailed how Plaintiff’s subjective allegations of bilateral foot pain related
to her gout were not supported by the objective medical evidence. The ALJ noted Plaintiff’s
treatment through steroid injections and subsequent lack of regular treatment from Dr. Gernert.
[Tr. 19]; see [Tr. 378–87]. Additionally, the ALJ reviewed the results of the examination with Dr.
Misra, including that Plaintiff was able to get up from a chair and on and off the table without
difficulty, that her lungs were clear to auscultation, that she only had a limited range of motion in
her left knee, and that her straight leg raises were negative. [Tr. 399].
Ultimately, the ALJ’s rationale for discounting Dr. Misra’s opinion is consistent with the
regulatory factors for weighing medical opinions and controlling Sixth Circuit authority. See 20
C.F.R. § 416.927(c)(2)–(4); see also Keeler v. Comm’r of Soc. Sec., 511 F. App’x 472, 473 (6th
Cir. 2013) (finding that substantial evidence supported the ALJ’s decision not to give controlling
weight to a physician’s opinion because the opinion conflicted with the physician’s findings, was
contradicted by other evidence in the record, and appeared to be based primarily on the claimant’s
subjective complaints).
The ALJ found that Dr. Misra’s opinion was based on Plaintiff’s
subjective allegations and subsequently detailed how the medical record did not support Plaintiff’s
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subjective allegations regarding her gout. See, e.g., Staymate, 681 F. App’x at 467 (finding
“reasoning that a medical opinion relied too heavily on the claimant’s subjective complaints [is]
adequate to support an ALJ’s decision to give little weight to the opinion”); Makulski v. Berryhill,
No. 3:17-cv-128, 2018 WL 2144152, at *5 (E.D. Tenn. May 9, 2018) (holding substantial evidence
supported ALJ’s assignment of partial weight to consultative examiner’s opinion, as “the ALJ
considered the consistency and supportability of the opinion,” when concluding that the
consultative examiner heavily relied on the Plaintiff’s subjective allegations).
Accordingly, Plaintiff’s assignment of error with regard to the weight given to Dr. Misra’s
opinion is not well-taken.
3.
Dr. Denny
Plaintiff asserts that the ALJ’s reasoning for assigning little weight to Dr. Denny’s opinion
is “broad and conclusory,” as the ALJ failed to identify which parts of the opinion were based on
Plaintiff’s subjective allegations and did not “cite to any specific inconsistencies between Dr.
Denny’s opinion and the record.” [Doc. 19-1 at 20].
Dr Denny performed a clinical interview and mental status exam on November 5, 2013,
and stated that Plaintiff “usually needs assistance with most tasks,” but that “[s]he is sometimes
able to complete a task, but often has problems with forgetting and also pain.” [Tr. 389]. Dr.
Denny reported that Plaintiff displayed a depressed mood, but appeared to be oriented in all four
spheres of consciousness, as she correctly identified the date, the approximate time, the location,
and the purpose of the examination. [Tr. 389–90]. Dr. Denny also noted that Plaintiff displayed
a mild impairment in memory, as well as a mild impairment in attention and concentration. [Tr.
390]. Next, Dr. Denny reported that Plaintiff stated that she has been depressed since her son died
in November of 2012, as well as that she suffers from low motivation and energy and social
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isolation. [Tr. 391]. Accordingly, Dr. Denny opined that Plaintiff had moderate limitations in her
abilities in understanding and remembering, mild limitations in her abilities in sustaining
concentration and attention, moderate impairments in interacting with others, and moderate
impairments in adapting to changes and requirements. [Id.].
The ALJ assigned little weight to Dr. Denny’s opinion, finding that “it was only consistent
with [Plaintiff’s] subjective complaints which were inconsistent with the record, with little
objective corroboration.” [Tr. 20]. The ALJ noted the results of Plaintiff’s mental status
examination with Dr. Denny, including that Plaintiff was able to correctly recall two of three words
repeated five minutes earlier with prompting, count forward by threes to fifteen, and name four
presidents since 1960. [Id.]. Additionally, the ALJ found that although Plaintiff reported to Dr.
Denny that her depression started after the death of her son, the medical record establishes earlier
treatment for her depression. [Id.]; see [Tr. 260–76].
Here, Dr. Denny noted that she performed a clinical interview, as well as a mental status
exam of Plaintiff. [Tr. 388]. While Plaintiff alleges that the ALJ failed to identify what portion
of the opinion were “derived from subjective complaints” [Doc. 19-1 at 20], the ALJ reasonably
found that Dr. Denny’s opinion was primarily based upon Plaintiff’s subjective allegations. See
Staymate v. Comm’r of Soc. Sec., 681 F. App’x 462, 467 (6th Cir. 2017) (finding “reasoning that
a medical opinion relied too heavily on the claimant’s subjective complaints [is] adequate to
support an ALJ’s decision to give little weight to the opinion”); cf. Klusmeier v. Berryhill, No.
3:16-cv-39, 2017 WL 1066641, at *13 (E.D. Tenn. Mar. 21, 2017) (reviewing an ALJ’s treatment
of Dr. Denny’s opinion in another case, finding that a notation that she reviewed a prior
psychological evaluation, as well as letters from Plaintiff’s nurse practitioner and social worker,
“demonstrate that Dr. Denny did not rely solely on the Plaintiff’s self-report in assessing the
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Plaintiff’s ability to perform work-related activities as found by the ALJ”).
Moreover, the ALJ properly considered the extent to which Dr. Denny’s opinion was
supported by the objective medical evidence, as opposed to Plaintiff’s subjective allegations,
including inconsistencies between the date of the onset of Plaintiff’s depression and Plaintiff’s
previous “history of controlled symptoms when she was compliant with her doctor’s instructions”
when examining Plaintiff’s affective disorders and anxiety disorders. [Tr. 18]; see Crum v.
Comm’r of Soc. Sec., 660 F. App’x 449, 457 (6th Cir. 2016) (“No doubt, the ALJ did not reproduce
the list of these treatment records a second time when she explained why Dr. Bell’s opinion was
inconsistent with this record. But it suffices that she listed them elsewhere in her opinion.”); Long
v. Berryhill, No. 1:16-cv-485-CHS, 2018 WL 1162621, at *7 (E.D. Tenn. Mar. 5, 2018) (rejecting
Plaintiff’s argument that the ALJ, after stating that the consultative examiner’s opinion was based
primarily on Plaintiff’s subjective complaints, should have identified the evidence which was
inconsistent with the consultative examiner’s testimony, as “the ALJ described the relevant
evidence that undermined Dr. Chandler’s opinion throughout his opinion”).
Lastly, the ALJ examined how Dr. Denny’s opinion was inconsistent with the record,
including the results of Plaintiff’s examination. See Kepke v. Comm’r of Soc. Sec., 636 F. App’x
625, 629 (6th Cir. 2016) (“Regardless of any inherent subjectivity in the field of psychiatry, a
doctor cannot simply report what his patient says and repackage it as an opinion.”); Makulski v.
Berryhill, No. 3:17-cv-128, 2018 WL 2144152, at *5 (E.D. Tenn. May 9, 2018) (holding
substantial evidence supported ALJ’s assignment of partial weight to consultative examiner’s
opinion, as “the ALJ considered the consistency and supportability of the opinion,” when
concluding that the consultative examiner heavily relied on the Plaintiff’s subjective allegations).
16
Ultimately, the ALJ’s reasons for discounting Dr. Denny’s opinion are consistent with the
regulatory factors for weighing medical opinions and controlling Sixth Circuit authority. See 20
C.F.R. § 416.927(c)(2)–(4); see also Keeler v. Comm’r of Soc. Sec., 511 F. App’x 472, 473 (6th
Cir. 2013) (finding that substantial evidence supported the ALJ’s decision not to give controlling
weight to a physician’s opinion because the opinion conflicted with the physician’s findings, was
contradicted by other evidence in the record, and appeared to be based primarily on the claimant’s
subjective complaints). The ALJ found that Dr. Denny’s opinion was based on Plaintiff’s
subjective allegations, and was not consistent with the record or objective corroboration. [Tr. 20].
See, e.g., Staymate v. Comm’r of Soc. Sec., 681 F. App’x 462, 467 (6th Cir. 2017) (finding
“reasoning that a medical opinion relied too heavily on the claimant’s subjective complaints [is]
adequate to support an ALJ’s decision to give little weight to the opinion”). Accordingly,
Plaintiff’s assignment of error with regard to the weight given to Dr. Denny’s medical opinion is
not well-taken.
4.
Dr. Summers
Plaintiff challenges the ALJ’s assignment of little weight to the portion of Dr. Summers’s
opinion regarding Plaintiff’s COPD. [Doc. 19-1 at 18]. Plaintiff claims that the ALJ’s reasoning
for discounting this portion of the opinion is not supported by substantial evidence. [Id.]. The
Commissioner asserts that the ALJ properly found that Dr. Summers’s opinion that Plaintiff had
mild COPD was entitled to little weight. [Doc. 21 at 15].
Dr. Summers performed a consultative examination on April 30, 2013 [Tr. 374]. Dr.
Summers noted that Plaintiff reported a history of lower back pain, as well as difficulty breathing,
including a diagnosis of COPD. [Id.]. On examination, Dr. Summers reported “a few scattered
wheezes” in both lungs, good air movement, and that the “expiratory phase of respiration is
17
prolonged.” [Tr. 375]. Dr. Summers noted that Plaintiff reported a longstanding history of tobacco
abuse, as well as that she had been treated with various inhalers with modest improvement. [Tr.
374]. Additionally, Dr. Summers stated that Plaintiff “has clinical evidence of mild COPD.” [Tr.
376]. Accordingly, Dr. Summers opined that Plaintiff would have difficulty performing strenuous
exertion, as well as working in dusty conditions, temperature extremes, and high humidity. [Id.].
Ultimately, the ALJ assigned great weight to Dr. Summers’s opinion that Plaintiff was
limited to lifting and carrying 20 pounds, as well as performing sedentary and low to moderate
intensity activities. [Tr. 19]. However, the ALJ assigned little weight to his opinion that Plaintiff
has mild COPD, finding it was inconsistent with normal pulmonary function testing and Plaintiff’s
continued tobacco use. [Id.]. Additionally, the ALJ detailed that Plaintiff stated that she was still
engaged in work activity. [Id.]. The ALJ noted that Plaintiff “had a few scattered wheezes in her
bilateral lungs with good air movement and prolonged expiratory phase of respiration.” [Id.].
The ALJ properly found that Dr. Summers’s opinion regarding Plaintiff’s COPD was
entitled to little weight because of Plaintiff’s normal pulmonary function testing. See Norris v.
Comm’r of Soc. Sec., 461 F. App’x 433, 469 (6th Cir. 2012) (holding a consultative examiner’s
opinion “may be rejected by the ALJ when the source’s opinion is not well supported by medical
diagnostics or if it is inconsistent with the record”); Key v. Astrue, No. 2:10-cv-68, 2011 WL
2491439, at *12 (M.D. Tenn. June 22, 2011) (finding substantial evidence existed to support
discounting evidence of treating physician with regard to environmental limitations, as Plaintiff
had a normal chest x-ray and continued to smoke), report and recommendation adopted by, 2011
WL 3475482 (M.D. Tenn. Aug. 9, 2011); see also 20 C.F.R. § 404.1527(c) (directing that an ALJ
evaluates a non-treating source opinion by considering the supportability of the opinion). The ALJ
noted the results of Plaintiff’s examination with Dr. Misra on November 18, 2013, where
18
Plaintiff’s pulmonary function test was within normal limits and her lungs were clear to
auscultation. [Tr. 20]; see [Tr. 393–397]. Moreover, a pulmonary function test from May 23,
2012 was within normal limits, despite Plaintiff’s complaints of difficulty breathing [Tr. 288].
Lastly, the ALJ noted that during her examination with Dr. Summers, Plaintiff exhibited good air
movement in her lungs, although combined with a prolonged expiratory phase of respiration [Tr.
19].
Additionally, the ALJ discounted Dr. Summers’s opinion due to Plaintiff’s treatment
history and continued tobacco usage. The ALJ detailed that Plaintiff admitted to smoking one pack
of cigarettes a day. [Tr. 19]. “In addition[,] the Plaintiff[‘s] refusal to quit smoking belies [her]
objection to being around chemicals, fumes and smoke.” Gutierrez v. Astrue, No. 09-2149, 2011
WL 528924, at *9 (W.D. Ark. Jan. 28, 2011) (citing Nichols v. Comm’r of Soc. Sec., No. 1:09-cv1091, 2010 WL 5178069, at *3 (W.D. Mich. Nov. 18, 2010), report and recommendation adopted
by, 2010 WL 5178033 (W.D. Mich. Dec. 15, 2010)); see, e.g., Sias v. Sec’y of Health & Human
Servs., 861 F.2d 475, 480 (6th Cir. 1988); Pichey v. Colvin, No. 2:15-cv-37, 2016 WL 6566681,
at *6 (M.D. Tenn. Nov. 4, 2016).
As Dr. Summers was not a treating physician, the ALJ had no heightened articulation
requirement as to his opinion. See Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir.
2007) (“[E]ven if the purpose of the reasons-giving requirement in § 404.1527(d)(2) applies to the
entire regulation, the SSA requires ALJs to give reasons for only treating sources.”). The ALJ
properly found that the portion of Dr. Summers’s opinion stating that Plaintiff had mild COPD
was entitled to little weight because of Plaintiff’s continued tobacco use and normal pulmonary
function test. Therefore, Plaintiff’s arguments regarding Dr. Summers’s opinion do not constitute
a basis for remand.
19
5.
Dr. Millis and Dr. Lemeh
Plaintiff challenges the ALJ’s failure to include environmental limitations in her RFC,
despite the assignment of great weight to the opinions of Dr. Millis and Dr. Lemeh. [Doc. 19-1 at
22]. However, the Commissioner asserts that the ALJ maintains the ultimate responsibility to
determine Plaintiff’s RFC, and is not required to adopt an opinion wholesale. [Doc. 21 at 15].
Dr. Millis reviewed the evidence of record at the initial level of the agency’s review, and
opined that Plaintiff could occasionally lift and/or carry twenty pounds, frequently lift and/or carry
ten pounds, and stand and/or walk, as well as sit, for a total of about six hours in an eight-hour
workday. [Tr. 81]. Dr. Millis opined that Plaintiff could frequently climb ramps or stairs, balance,
stoop, kneel, crouch, or crawl, and that Plaintiff could occasionally climb ladders, ropes, or
scaffolds. [Id.]. Lastly, Dr. Millis found that Plaintiff could have unlimited access to extreme
heat, wetness, humidity, noise, vibration, or hazards, but that Plaintiff should avoid concentrated
exposure to fumes, odors, dusts, gases, and poor ventilation. [Tr. 82]. Dr. Millis stated that the
opined environmental limitations were due to Plaintiff’s COPD. [Id.].
At the reconsideration level of the agency’s review, Dr. Lemeh opined that Plaintiff could
occasionally lift and/or carry twenty pounds, frequently lift and/or carry ten pounds, could stand
and/or walk for a total of five hours, and sit for a total of six hours in an eight-hour workday. [Tr.
97]. Further, Dr. Lemeh found that Plaintiff could occasionally climb ramps, stairs, ladders, ropes,
or scaffolds, balance, stoop, kneel, crouch, and crawl. [Tr. 98]. With respect to Plaintiff’s
environmental limitations, Dr. Lemeh opined that Plaintiff could have unlimited access to extreme
cold or heat, wetness, humidity, noise, or hazards, but that she should avoid concentrated exposure
to vibration, fumes, odors, dusts, gases, or poor ventilation. [Tr. 98–99].
20
In the disability decision, the ALJ assigned great weight to the opinions of the
nonexamining state agency consultants, finding that they “were generally consistent with the
weight of the evidence.” [Tr. 19]. The ALJ noted that Dr. Millis opined that Plaintiff could
perform a mildly diminished range of work at the light exertional level, and that Dr. Lemeh
affirmed the opinion of Dr. Millis. [Id.].2 However, the ALJ did not include any environmental
limitations in the RFC determination. [Tr. 15].
Ultimately, when an ALJ fails to incorporate all of the limitations opined from a medical
source who received great weight, “it does not follow that the ALJ’s explanation is, therefore,
procedurally inadequate, or that the RFC was not supported by substantial evidence.” Moore v.
Comm’r of Soc. Sec., No. 1:13-CV-00395, 2013 WL 6283681, at *7 (N.D. Ohio Dec. 4, 2013);
see Reeves v. Comm’r of Soc. Sec., 618 F. App’x 267, 275 (6th Cir. 2015) (“Even where an ALJ
provides “great weight” to an opinion, there is no requirement that an ALJ adopt a state agency
psychologist’s opinions verbatim; nor is the ALJ required to adopt the state agency psychologist’s
limitations wholesale.”) (citing Harris v. Comm’r of Soc. Sec. Admin., No. 1:13–cv–00260, 2014
WL 346287, at *11 (N.D. Ohio Jan. 30, 2014)).
While Plaintiff challenges the ALJ’s failure to include the environmental limitations opined
by the nonexamining state agency consultants—that she should avoid concentrated exposure to
vibration, fumes, odors, dusts, gases, or poor ventilation—both Dr. Millis and Dr. Lemeh stated
that the opined environmental limitations were based on Plaintiff’s COPD. “To the extent an ALJ
determines that an identified impairment, severe or otherwise, does not result in any work-related
restrictions or limitations, the ALJ ‘is required to state the basis for such conclusion.’” Branham
2
The Court notes that the ALJ incorrectly referred to Dr. “Mills” in the disability decision.
[Tr. 19].
21
v. Colvin, No. 14-CV-12454, 2015 WL 5719674, at *6 (E.D. Mich. Sept. 30, 2015) (quoting Hicks
v. Comm’r of Soc. Sec., No. 12-13581, 2013 WL 3778947, at *3 (E.D. Mich. July 18, 2013)).
During the disability determination, the ALJ reviewed in detail why she did not find the
medical evidence of record to support a finding that Plaintiff’s COPD affected her ability to work.
[Tr. 12–13]. Specifically, the ALJ found that Plaintiff’s COPD was not a severe impairment and
that the opined RFC “more than fully accommodates any minimal limitations,” due to Plaintiff’s
continued smoking, normal pulmonary function testing, as well as that her “COPD symptoms were
controlled with medications along with a daily nebulizer treatment.” [Id.]. Moreover, as the Court
has already detailed, when discussing Dr. Summers’s opinion, the ALJ gave little weight to the
portion of the opinion that Plaintiff had mild COPD. [Tr. 19].
Therefore, although the ALJ assigned great weight to Dr. Millis and Dr. Lemeh’s opinions,
she appropriately detailed her reasoning for not including opined environmental limitations due to
Plaintiff’s COPD throughout the opinion. Price v. Comm’r of Soc. Sec., No. 14-cv-13662, 2016
WL 3193025, at *2 (E.D. Mich. June 9, 2016) (“The ALJ’s decision not to include the restrictions
suggests that he did not intend to adopt that limitation. . . . Furthermore, the Court has reviewed
the ALJ’s order and the evidence as a whole, and finds that the ALJ’s decision not to incorporate
those limitations into the RFC was supported by substantial evidence.”). Further, as the Court will
later discuss, substantial evidence supports the ALJ’s decision to not include any environmental
limitations in the RFC determination.3
The ALJ “is not required to recite the medical opinion of a physician verbatim in his
residual functional capacity finding . . . [and] an ALJ does not improperly assume the role of a
3
See infra Section V(B).
22
medical expert by assessing the medical and non-medical evidence before rendering a residual
functional capacity finding.” Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 157 (6th Cir. 2009)
(internal citations omitted). Here, the ALJ properly detailed why Plaintiff’s COPD did not support
the finding of environmental limitations, and the RFC determination is supported by substantial
evidence in the record. Therefore, Plaintiff’s assertion that the ALJ’s RFC determination did not
include all of the exact limitations from Dr. Millis and Dr. Lemeh’s opinions, despite the ALJ’s
assignment of great weight to these opinions, does not constitute a basis for remand.
B.
COPD and Respiratory Limitations
Plaintiff objects to the ALJ’s failure to include environmental limitations accounting for
the alleged disabling effects of her COPD, asthma, and respiratory issues in the RFC
determination. [Doc. 19-1 at 21–24]. Plaintiff contends that the ALJ’s RFC determination
“undermines” the opinions of the nonexamining state agency consultants, Dr. Millis and Dr.
Lemeh, as the ALJ afforded great weight to these opinions but subsequently failed to include
opined environmental limitations. [Id. at 22]. Additionally, Plaintiff claims that the ALJ also
failed to properly consider the opinion of Dr. Summers, despite the ALJ also affording great weight
to the consultative examiner’s opinion. [Id. at 22–23]. Lastly, Plaintiff asserts that the medical
record supports “that Plaintiff has respiratory impairments that should have been accounted for in
the RFC.” [Id. at 23].
However, the Commissioner maintains that the ALJ properly found that while Plaintiff’s
COPD was a medically determinable impairment, neither her COPD or her asthma caused severe
enough restrictions to affect Plaintiff’s ability to work. [Doc. 21 at 13–16]. Further, the
Commissioner states that the ALJ reviewed the medical record regarding Plaintiff’s respiratory
impairments to find that any environmental limitations were unnecessary, due to “Plaintiff’s
23
regularly normal pulmonary function tests, her lack of any hospitalizations or emergency room
care for her breathing, her reported daily activities, and her continued voluntary exposure to the
pulmonary irritant of cigarette smoke.” [Id. at 15–16].
It is well settled that the ALJ’s failure to identify some impairments as “severe” is harmless
where the ALJ continues the disability determination and considers both severe and non-severe
impairments at subsequent steps of the sequential evaluation as required by the regulations. See
Fisk v. Astrue, 253 F. App’x 580, 583 (6th Cir. 2007) (“And when an ALJ considers all of a
claimant’s impairments in the remaining steps of the disability determination, an ALJ’s failure to
find additional severe impairments at step two ‘[does] not constitute reversible error.’”) (quoting
Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987)); Pompa v. Comm’r
of Soc. Sec., 73 F. App’x 801, 803 (6th Cir. 2003) (“Because the ALJ found that Pompa had a
severe impairment at step two of the analysis, the question of whether the ALJ characterized any
other alleged impairment as severe or not severe is of little consequence.”).4 Therefore, the Court
notes that any failure by the ALJ to classify Plaintiff’s COPD as a severe impairment at Step Two
would be harmless error.
However, Plaintiff challenges the ALJ’s failure to include any environmental limitations
in the RFC to account for her severe impairment of asthma, as well as the non-severe impairment
of COPD. Plaintiff asserts that the medical record, including several opinions to which the ALJ
assigned great weight, support environmental limitations due to her respiratory impairments.
4
In the disability decision, the ALJ first identified several severe impairments, including
spine disorder with grade I spondylolisthesis at L5/S1, osteoarthrosis and bursitis in the left knee,
asthma, affective disorder, and anxiety disorder. [Tr. 12]. However, the ALJ proceeded to
consider all medically determinable impairments, both severe and non-severe, in the continued
disability determination.
24
A claimant’s RFC is the most the claimant can do despite his or her impairments. 20 C.F.R.
§ 404.1545(a)(1). In other words, the RFC describes “the claimant’s residual abilities or what a
claimant can do, not what maladies a claimant suffers from—though the maladies will certainly
inform the ALJ’s conclusion about the claimant’s abilities.” Howard v. Comm’r of Soc. Sec., 276
F.3d 235, 240 (6th Cir. 2002). Moreover, “[a] claimant’s severe impairments may or may not
affect his or her functional capacity to do work. One does not necessarily establish the other.”
Griffeth v. Comm’r of Soc. Sec., 217 F. App’x 425, 429 (6th Cir. 2007) (internal quotation marks
and citations omitted). Ultimately, an ALJ is responsible for determining a claimant’s RFC after
reviewing all of the relevant evidence in the record. Rudd v. Comm’r of Soc. Sec., 531 F. App’x
719, 728 (6th Cir. 2013) (citation omitted).
In the disability decision, the ALJ properly explained her reasoning for not finding
Plaintiff’s COPD to be a severe impairment. During her Step Two analysis, the ALJ stated that
Plaintiff’s “COPD symptoms were controlled with medications along with a daily nebulizer
treatment,” as well as that Plaintiff “was smoking up to five cigarettes each day” and that a May
23, 2012 pulmonary function test was normal. [Tr. 12]. Accordingly, the ALJ found that the RFC
“more than fully accommodates any minimal limitations” that Plaintiff may have because of her
COPD. [Tr. 13]. See, e.g., Vetetoe v. Astrue, No. 3:13–00008, 2014 WL 3619583, at *14 (M.D.
Tenn. July 22, 2014) (noting that “[a]sthma and COPD are not synonymous. Rather, COPD is a
disease that may be characterized by, inter-alia, the specific impairment of asthma”), report and
recommendation adopted by, 2014 WL 4095896 (M.D. Tenn. Aug. 19, 2014).
Further, the ALJ reviewed the medical record with respect to Plaintiff’s asthma, which the
ALJ found to be a severe impairment. The ALJ noted a February 5, 2013 office visit in which
Plaintiff was negative for cough, dyspnea, hemoptysis and frequent wheezing. [Tr. 18]; see [Tr.
25
278]. Further, the ALJ repeated Plaintiff’s normal pulmonary function test on May 23, 2012. [Tr.
18]; see [Tr. 286–90]. Additionally, the ALJ noted that Plaintiff’s symptoms were controlled with
inhalers and a nebulizer, and that [t]here was no evidence that [Plaintiff] was hospitalized for
asthma or any pulmonary disorder or was prescribed supplemental oxygen.” [Tr. 18].
The ALJ also noted Plaintiff’s failure to stop smoking, and although she testified that she
stopping smoking in 2013, the ALJ found that Plaintiff’s medical records from Cherokee Health
Systems demonstrated that she continued to smoke as recently as July 2015. [Tr. 17]; see [Tr.
585].
“Plaintiff’s
failure
to
stop
smoking—contrary
to
her
physicians’
repeated
recommendations—weighs against finding severe limitations from her COPD.” Barringer v.
Comm’r of Soc. Sec., No. 13-CV-12746, 2014 WL 4065475 at *13 (E.D. Mich. Aug. 18, 2014)
(citing Sias v. Sec’y of Health & Human Servs., 861 F.2d 475, 480 (6th Cir. 1988)); see also Blaim
v. Comm’r of Soc. Sec., 595 F. App’x 496, 498 (6th Cir. 2014) (“[T]he ALJ noted that parts of
Blaim’s testimony were contradicted by the record, and that Blaim’s conservative treatment
schedule and persistent refusal to take his medications or quit smoking—as his doctors repeatedly
advised—suggested that his condition was not as serious as Blaim made it out to be.”); Brown v.
Soc. Sec. Admin., 221 F.3d 1333 (table), 2000 WL 876567, at *1 (6th Cir. 2000) ( “Although
Brown suffers from chronic obstructive pulmonary disease, his heavy smoking habit indicates that
the condition is not disabling.”) (citing Sias, 861 F.2d at 480).
Although Plaintiff points to alternative evidence that she claims is consistent with the
finding of environmental limitations due to her respiratory impairments, “[t]he substantialevidence standard . . . presupposes that there is a zone of choice within which the decisionmakers
can go either way, without interference by the courts.” Blakley v. Comm’r of Soc. Sec., 581 F.3d
399, 406 (6th Cir. 2009) (alteration in original) (internal citation omitted). This Court decides only
26
whether there was substantial evidence to support the ALJ’s decision. In that event, the Court is
to defer. Id. The ALJ is responsible for considering all the medical opinions of record and “does
not improperly assume the role of a medical expert by assessing the medical and non-medical
evidence before rendering” a claimant’s RFC. Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 157
(6th Cir. 2009). “Rather, it is the Commissioner’s prerogative to determine whether a certain
symptom or combination of symptoms renders a claimant unable to work.” Luukkonen v. Comm’r
Soc. Sec., 653 F. App’x 393, 402 (6th Cir. 2016) (citing 20 C.F.R. § 416.929(c)(1), -(d)(2)). The
ALJ is responsible for weighing medical opinions, as well as resolving conflicts in the medical
evidence of record. Richardson v. Perales, 402 U.S. 389, 399 (1971); see also 20 C.F.R. §
416.946(c) (stating the final responsibility for assessing a claimant’s RFC rests with the ALJ).
Accordingly, the ALJ properly found that Plaintiff’s COPD did not constitute a severe
impairment, and that the RFC determination properly accounted for any limitations stemming from
Plaintiff’s COPD. With respect to Dr. Summers’s opinion, although he detailed Plaintiff’s mild
COPD, as well as scattered wheezes and prolonged expirations [Tr. 374–76], the ALJ properly
noted that this opinion was inconsistent with Plaintiff’s normal pulmonary function test and
continued tobacco use [Tr. 19]. The ALJ was not required to incorporate all of the limitations in
Dr. Millis and Dr. Lemeh’s opinions, as the environmental limitations were based upon a finding
of Plaintiff’s COPD, and the ALJ detailed throughout the opinion why the medical record did not
support limitations due to Plaintiff’s COPD. Ultimately, the ALJ found that any environmental
limitations were negated by Plaintiff’s normal pulmonary function tests, lack of hospitalization for
her breathing, continued smoking, and lack of proper treatment. Therefore, the Court finds that
the ALJ’s RFC determination is supported by substantial evidence.
27
C.
Past Relevant Work
Plaintiff contends that the ALJ improperly found that she had past relevant work as a
“companion,” as her monthly earnings did not constitute substantial gainful activity. [Doc. 19-1
at 24–25]. In addition, Plaintiff alleges that the ALJ improperly asked the VE to classify “sitting
with the elderly man” as relevant past work. [Id. at 25].
The Commissioner maintains that the monthly earnings, which Plaintiff alleges establish
that her past work experience did not qualify as substantial gainful activity, actually determine
whether a claimant is eligible for benefits at Step One—not whether past relevant work is
substantial gainful activity. [Doc. 21 at 17]. Therefore, the Commissioner asserts that the ALJ
reasonably found that Plaintiff’s past work was substantial and gainful. [Id.]. Lastly, the
Commissioner states that the ALJ made an alternative finding at Step Five that even if Plaintiff
could not perform her past relevant work, there was other work within the national economy that
she could perform. [Id.].
In the disability decision, the ALJ found that Plaintiff was capable of performing past
relevant work as a “Companion,” and that “[t]his work does not require the performance of workrelated activities precluded” by Plaintiff’s RFC. [Tr. 20]. During the disability hearing, Plaintiff
described her past work history of sitting with an elderly man, which the VE classified as a
“companion.” [Tr. 56]. Plaintiff claims that the record indicates that she earned $8,058 in 2011
and $9,577 in 2012. [Doc. 19-1 at 25]; see [Tr. 164–78]. Therefore, Plaintiff alleges that “it was
erroneous for the ALJ to even ask the VE to classify the job, as it was not a job performed a[s]
substantial gainful activity.” [Doc. 19-1 at 25].
As the Court has previously detailed, a claimant will be deemed disabled “only if his
physical or mental impairment or impairments are of such severity that he is not only unable to do
28
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.” 42 U.S.C. §§
423(d)(2) (A), 1382c(a)(3)(B). “Past relevant work” is defined as work that claimants have done
within the past fifteen years that is “substantial gainful activity,” and that lasted long enough for
the claimant to learn to do it. Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir.
2006) (citing 20 C.F.R. § 404.1560(b)(1)). The Regulations also set an average monthly-earnings
threshold to qualify as substantial gainful activity. See 20 C.F.R. § 404.1574(b)(3)(i). For 2011
and 2012, the time period at issue, the monthly threshold for substantial gainful activity was $1640
and $1690, respectively. See https://www.ssa.gov/oact/cola/sga.html.
“In sum, consistent with other courts which have so held, the Court holds that a rebuttable
presumption arises that past relevant work is not substantial gainful activity when the evidence
shows that a disability claimant’s earnings from that past relevant work are below the threshold
set by the regulations.” Brown v. Colvin, No. 13–13917, 2015 WL 1530769, at *4–6 (E.D. Mich.
Mar. 31, 2015) (finding that the ALJ erred by finding that the plaintiff could perform his past
relevant work because his past work as a fast food worker never rose to the level of substantial
gainful activity, and thus could not be considered past relevant work); see, e.g., Wright-Hines v.
Comm’r of Soc. Sec., 597 F.3d 392, 397–98 (6th Cir. 2010) (“finding “there is a presumption
against finding that a claimant engaged in substantial gainful activity if the claimant’s monthly
earnings from the work falls below a specified amount”).
Ultimately, the ALJ erred by finding that Plaintiff’s work as a companion qualified as past
relevant work, as Plaintiff’s monthly earnings did not constitute substantial gainful activity.
Plaintiff claims that she only earned $8,058 in 2011, and $9,577 in 2012, with the amounts for
both years well below the monthly-earning threshold. See [Tr. 165]. During the disability hearing,
29
the ALJ questioned about her earnings for “sitting with the elderly man,” and Plaintiff testified
that she agreed to work 20 hours for $150. [Tr. 56]. Although the overall rate was unclear, the
ALJ then asked the VE to classify the best match of Plaintiff “sitting with the elderly man.” [Id.].
However, the ALJ did not make findings with respect to whether Plaintiff’s previous work activity
qualified as substantial gainful activity, or discuss the effect of Plaintiff’s testimony regarding her
monthly earnings. Therefore, the ALJ improperly found that Plaintiff was able to perform her past
relevant work as a companion.
When error is committed at Step Four, “the Commissioner’s decision can be affirmed only
if the ALJ also found in the alternative, with the support of substantial evidence, that Plaintiff was
capable of making an adjustment to ‘other work’ existing in significant numbers in the national
economy.” Prater v. Astrue, No. 4:08-CV-83, 2010 WL 1257882, *9 (E.D. Tenn. Mar. 3,
2010) (internal citations omitted), report and recommendation adopted by, 2010 WL 1257880
(E.D. Tenn. Mar. 25, 2010); see also 20 C.F.R. §§ 404.1520(a)(4)(v); 404.1560(c)(1)).
Here, the ALJ also made an alternative finding that although Plaintiff was capable of
performing her past relevant work as a companion, there were sufficient jobs existing in the
national economy that she was also able to perform. [Tr. 21]. Specifically, the ALJ asked the VE
whether jobs existed in the national economy for an individual with Plaintiff’s age, education,
work, experience, and RFC—to which the VE responded that such an individual was capable of
performing the requirements of a packager, with 361,000 jobs nationally; a machine tender, with
76,000 jobs nationally; and as an assembler, with 92,000 jobs nationally. [Tr. 21–22]; see [Tr. 57–
58]. The ALJ found that based upon this testimony, Plaintiff “is capable of making a successful
adjustment to other work that exists in significant numbers in the national economy.” [Tr. 22].
Accordingly, any error regarding Plaintiff’s past relevant work was harmless, as the ALJ
30
appropriately found that significant work existed in the national economy that Plaintiff could
perform. See, e.g., Michael v. Comm’r of Soc. Sec., No. 2:18-cv-131, 2018 WL 3490822, at *6
(S.D. Ohio July 20, 2018) (“It is thus well-established that if an ALJ makes additional findings at
step five that are supported by substantial evidence, any error at step four is harmless.”), report
and recommendation adopted by, 2018 WL 4223151 (S.D. Ohio Sept. 5, 2018); Dunnett v.
Comm’r of Soc. Sec., No. 12–10930, 2013 WL 460445, at *15 (E.D. Mich. Aug. 29, 2013) (“The
ALJ did not end her analysis at step four—she continued to step five, and found that Plaintiff could
perform other work that existed in significant numbers in the national economy. As such, an error
at step four—if any—was harmless.”) (emphasis in original).
D.
Borderline Age Category
Lastly, Plaintiff contends that she was less than two weeks from the “advanced age”
category at the time the ALJ issued her decision, and thus, the ALJ should have applied the
regulations for a person of advanced age. [Doc. 19-1 at 26]. Additionally, Plaintiff asserts that
under this advanced age category, she would have been found disabled under Medical Vocational
Rule 202.01 or 202.02. [Id.].
During the disability decision, the ALJ found that Plaintiff was 51 years old, which is
defined as an individual closely approaching advanced age, on the date that the application was
filed. [Tr. 21]. The ALJ also noted Plaintiff’s high school education and ability to communicate
in English. [Id.]. Ultimately, the ALJ found that transferability of job skills was not material
because using the Medical-Vocational Rules as a framework supported a finding that Plaintiff was
“not disabled,” regardless of her transferrable job skills. [Id.].
“Age” is defined in 20 C.F.R. §§ 404.1563(a) and 416.963(a) as being the claimant’s
“chronological age.” In a disability determination, the Commissioner considers an individual’s
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“chronological age in combination with [a claimant’s RFC], education, and work experience.” 20
C.F.R. §§ 404.1563(a) and 416.963(a). Additionally, age is a factor in determining an individual’s
ability to adjust to other work, where “advancing age” is considered “to be an increasingly limiting
factor in the person’s ability to make such an adjustment.” Id. Specifically, the regulations make
the following distinctions:
(d) Person closely approaching advanced age. If you are closely
approaching advanced age (age 50–54), we will consider that your age
along with a severe impairment(s) and limited work experience may
seriously affect your ability to adjust to other work.
(e) Person of advanced age. We consider that at advanced age (age 55 or
older), age significantly affects a person’s ability to adjust to other work.
We have special rules for persons of advanced age and for persons in this
category who are closely approaching retirement age (age 60 or older). See
§ 404.1568(d)(4).
20 C.F. R. §§ 404.1563(d)-(e); and 416.963(d)-(e).
However, under 20 C.F.R. § 404.1563(b), the Social Security Administration “will not
apply the age categories mechanically in a borderline situation.”
The Social Security
Administration’s Hearings, Appeals, and Litigation Law Manual (HALLEX) states that a
borderline situation exists when: (1) the claimant’s age is within a few days or months of a higher
age category; and (2) use of the higher age category would result in a finding of
disability. Borderline Age, HALLEX I-2-2-42, 2016 WL 1167001, at *1 (Mar. 25, 2016).
To
determine if a borderline age situation exists in the current case, the Court must determine whether
“using the older age category would result in a determination or decision that [Plaintiff was]
disabled.” 20 C.F.R. §§ 404.1563(b) and 416.963(b).
Here, Plaintiff was in a borderline age situation, as she was less than two weeks from the
“advanced age” category at the time of the ALJ’s decision. Therefore, Plaintiff argues that she
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would have been founded disabled under Medical-Vocational Rules 202.01 or 202.02. At step
five of the disability determination, the Commissioner has the burden of proving that other work
exists in the national economy that the claimant can perform giving his RFC and vocational factors,
including age, education, and work skills. Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th
Cir. 1997) (citing 20 C.F.R. § 404.1520). Generally, the Commissioner may meet her burden by
applying the medical-vocational guidelines (“the grid”), which indicates whether a claimant is
“disabled” or “not disabled” based upon the claimant’s age, education, and whether he has
transferable job skills. Id. (citing Wright v. Massanari, 321 F.3d 611, 615 (6th Cir. 2003); Burton
v. Sec’y of Health & Human Servs., 893 F.2d 821, 822 (6th Cir. 1990)).
Medical–Vocational Rule 202.01 directs the ALJ to enter a finding of disability when the
claimant is a person of advanced age, with limited education, who cannot return to their prior
unskilled work. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table 2 (Rule 202.01). MedicalVocational Rule 202.02 directs a finding of disability when the claimant is a person of advanced
age, with limited education, who cannot return to their skilled or semiskilled previous work
experience, as the skills are not transferrable. 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table 2 (Rule
202.02).
However, Plaintiff did not have a limited education, as the ALJ found that she “has at least
a high school education and is able to communicate in English.” [Tr. 21]. Under 20 C.F.R. §
416.964(b)(3), which defines education as a vocational factor, a limited education is “a 7th grade
through the 11th grade level of formal education.” During the disability hearing, Plaintiff testified
that she graduated high school and had briefly attended vocational school. [Tr. 43]. Plaintiff does
not allege that the ALJ improperly found that she had at least a high school education, and
therefore, Plaintiff could not be found to be disabled under Medical-Vocational Rule 202.01 or
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202.02.
Additionally, the Court notes that the ALJ did not mechanically apply the MedicalVocational Rules. As the ALJ detailed in her decision, the ALJ used the Medical-Vocational Rules
only as a “framework,” and considered Plaintiff’s limitations resulting from her severe
impairments and the testimony of the VE. [Tr. 21]. Further, the ALJ was aware of Plaintiff’s age,
as the ALJ cited to Plaintiff’s date of birth, as well as 20 C.F.R. § 416.963. [Tr. 21]; see Ramsey
v. Soc. Sec. Admin., No. 3:14-1917, 2016 WL 727547, at *6, n.5 (M.D. Tenn. Feb. 24, 2016)
(noting a citation to 20 C.F.R. § 404.1563 indicates that the ALJ “was plainly aware” of Plaintiff’s
date of birth, and “[t]he fact that the ALJ made such findings while referring to § 404.1563 has
been noted to provide some indication that the ALJ considered the arguably borderline age
situation”), report and recommendation adopted by, 2016 WL 1044973 (M.D. Tenn. Mar. 16,
2016).
Lastly, “[a]lthough ALJs are obligated by this text [20 C.F.R. § 404.1563 or 20 C.F.R. §
416.963—evaluating age as a vocational factor] not to apply the age categories mechanically and
to consider whether use of an older age category would be appropriate in a borderline case, nothing
in this language obligates an ALJ to address a claimant’s borderline age situation in his opinion or
explain his thought process in arriving at a particular age-category determination. Rather, the
regulation merely promises claimants that the Administration will ‘consider’ veering from the
chronological-age default in borderline situations.” Bowie v. Comm’r of Soc. Sec., 539 F.3d 395,
399 (6th Cir. 2008). The Sixth Circuit in Bowie considered whether “additional vocational
adversities” existed to justify placing the plaintiff in the older age category, and provided an
example that “substantial evidence might be lacking where an ALJ, with no explanation, places a
claimant in the ‘younger individual’ age category who is 49 years and 11 months, unskilled,
34
sedentary, barely literate, and whose only previous work experience was in the fishing
industry.” Id. at 401.
Similarly, in Caudill v. Comm’r of Soc. Sec., the Sixth Circuit also examined whether
significant additional vocational adversities were in place to require discussion of a claimant’s
borderline age category. 424 F. App’x 510, 516 (6th Cir. 2011). The Sixth Circuit in Caudill
compared the hypothetical set forth in Bowie to the plaintiff who was approximately 54 years and
10 months old at the time of the ALJ’s decision, had a second-grade reading level, and whose only
relevant work experience was in the coal mining industry, yet whose borderline age situation was
not mentioned in the ALJ’s decision. 424 F. App’x at 518. However, the disability determination
of the plaintiff in Caudill was found to have been properly decided under his chronological age
classification, without a discussion of his borderline age. Id.
In the present case, Plaintiff does not point to sufficient “additional vocational adversities”
that would require an explicit borderline age analysis by the ALJ. Bowie, 539 F.3d at 401. Here,
the ALJ found that Plaintiff has a high school education and is able to communicate in English.
[Tr. 21]. Further, the ALJ utilized the testimony of the VE to question whether Plaintiff could
perform the modified range of light work, and found that an individual with Plaintiff’s age,
education, work experience, and RFC would be able to perform the requirements of representative
occupations at the unskilled light level, with an SVP of two, including as a packager, machine
tender, and as an assembler. [Tr. 21–22].
Ultimately, the Sixth Circuit has stated that “an ALJ does not have a procedural obligation
to address a claimant’s borderline age situation in his opinion or explain his reasons for arriving at
a particular age categorization.” Bowie, 539 F.3d at 400–01. Further, “[t]he fact that age
categories are not to be applied mechanically, [ ] obviously does not mean that a claimant must be
35
moved mechanically to the next age category whenever her chronological age is close to that
category.” Van der Maas v. Comm’r of Soc. Sec., 198 F. App’x 521, 528 (6th Cir.
2006); see Caudill, 424 F. App’x at 516–18 (holding ALJ did not err in categorizing plaintiff as
an individual “closely approaching advanced age,” rather than person of “advanced age,” even
though the plaintiff was fifty-four years and ten months at the time of the hearing decision).
Therefore, the Court finds that the ALJ’s decision to use Plaintiff’s chronological age does not
constitute a basis for remand.
V.
CONCLUSION
Based on the foregoing, Plaintiff’s Motion for Summary Judgment [Doc. 19] will be
DENIED, and the Commissioner’s Motion for Summary Judgment [Doc. 20] will be GRANTED.
The decision of the Commissioner will be AFFIRMED. The Clerk of Court will be DIRECTED
to close this case.
ORDER ACCORDINGLY.
Debra C. Poplin
United States Magistrate Judge
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