Bandy v. Social Security Administration

Filing 19

ORDER: For the reasons stated above, the Court ADOPTS the Report, DENIES Plaintiff's Motion, and AFFIRMS the decision of the Commissioner. This Order terminates this Court's jurisdiction over the above-styled action, and the case is DISMISSED. It is so ORDERED. Signed by Senior Judge John T. Nixon on 12/9/11. (tmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NORTHEASTERN DIVISION

LISA K. BANDY,

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Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

No. 2:10-cv-00119
Judge Nixon
Magistrate Judge Brown

ORDER
Pending before the Court is Plaintiff Lisa K. Bandy’s Motion for Judgment on the Record
(“Motion”) (Doc. No. 12), filed with a Memorandum in Support (Doc. No. 13). Defendant
Commissioner of Social Security filed a Response in Opposition (Doc. No. 14), to which
Plaintiff filed a Reply (Doc. No. 15). Magistrate Judge Brown issued a Report and
Recommendation (“Report”) recommending that Plaintiff’s Motion be denied and the final
decision of the Commissioner be affirmed. (Doc. No. 16.) Plaintiff filed Objections to the
Report (Doc. No. 17) and Defendant filed a Response to Plaintiff’s Objections (Doc. No. 18).
Upon review of the record, the Court ADOPTS the Report, DENIES Plaintiff’s Motion, and
AFFIRMS the decision of the Commissioner.
I.

BACKGROUND
A. Factual Background
The Court adopts the facts as stated in the Review of the Record in Magistrate Judge

Brown’s Report (Doc. No. 17 at 3-12).

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B. Procedural Background
Plaintiff filed an application for Disability Insurance Benefits (“DIB”) on October 23,
2007, alleging disability due to scoliosis, thyroid problems, Grave’s Disease, and mental
impairments. (Tr. 150-52.) Plaintiff stated an amended alleged onset date of September 24,
2005, because Plaintiff had been previously denied benefits by an ALJ on September 23, 2005.
(Tr. 73-81; 150-52.) Plaintiff’s application was denied upon initial review, and again upon
reconsideration. (Tr. 94-96, 100-01.) Plaintiff’s request for a hearing before an Administrative
Law Judge (“ALJ”) was granted, and the hearing took place on June 25, 2009. (Tr. 36-52.)
Plaintiff requested and was granted a supplemental hearing, which was held on October 27,
2009. (Tr. 25-34.) The ALJ denied Plaintiff’s claim on January 1, 2010. (Tr. 54-65.) The ALJ
made the following findings of fact and conclusions of law:
1. The claimant last met the insured status requirements of the Social Security Act on
December 31, 2006.
2. The claimant did not engage in substantial gainful activity during the period from her
amended onset date of September 24, 2005 through her date last insured of December 31,
2006 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the following severe impairments: lumbar
and thoracic degenerative disc disease and spondylosis; mechanical low back pain
syndrome; and fibromyalgia (20 CFR 404.1420(c)).
4. Through the date last insured, the claimant did not have an impairment or combination of
impairments that met or medically equaled one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that, through the
date last insured, the claimant had the residual functional capacity to perform sedentary
work as defined in 20 CFR 404.1567(a) that is limited to occasional postural limitations,
such as climbing, balancing, stooping, crouching, kneeling and crawling; occasional
pushing and pulling with the arms; avoiding exposure to concentrated temperature
extremes; and having a sit/stand option at will.

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6. Through the date last insured, the claimant was unable to perform any past relevant work
(20 CFR 404.1565).
7. The claimant was born on October 20, 1964 and was 42 years old, which is defined as a
younger individual age 18-44, on the date last insured (20 CFR 404.1563).
8. The claimant has a limited education and is able to communicate in English. (20 CFR
404.1564).
9. Transferability of job skills is not material to the determination of disability because
using the Medical-Vocational Rules as a framework supports a finding that the claimant
is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41
and 20 CFR Part 404, Subpart P, Appendix 2).
10. Through the date last insured, considering the claimant’s age, education, work
experience, and residual functional capacity, there were jobs that existed in significant
numbers in the national economy that the claimant could have performed (20 CFR
404.1569 and 404.1569(a)).
11. The claimant was not under a disability, as defined in the Social Security Act, at any time
from September 24, 2005, the amended onset date, through December 31, 2006, the date
last insured (20 CFR 404.1520(g)).
(Tr. 59-65.)
Plaintiff’s request for review was denied by the Appeals Council on October 29, 2010 (Tr. 1-3),
making the ALJ’s decision the final decision of the Commissioner.
On December 2, 2010, Plaintiff filed this action to obtain judicial review of the
Commissioner’s final decision, pursuant to 42 U.S.C. § 405(g). (Doc. No. 1.) On March 3,
2011, Plaintiff filed a Motion for Judgment on the Record (Doc. No. 12), to which Defendant
responded on April 4, 2011 (Doc. No 25). Plaintiff filed a Reply to Defendant’s Response on
April 13, 2011. (Doc. No. 15.) On July 28, 2011, Magistrate Judge Brown issued the Report
recommending that the Commissioner’s decision be affirmed and that Plaintiff’s Motion be
denied. (Doc. No. 16.) Plaintiff asserted three objections to the Magistrate Judge’s findings on
August 3, 2011, specifically:
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1. Plaintiff objects to the Magistrate Judge’s recommendation that substantial evidence
supports the ALJ’s evaluation of Plaintiff’s mental disorders.
2. Plaintiff objects to the Magistrate Judge’s recommendation that substantial evidence
supports the weight the ALJ gave to the opinion of Plaintiff’s physicians.
3. Plaintiff objects to the Magistrate Judge’s recommendation that substantial evidence
supports the ALJ’s evaluation of Plaintiff’s credibility.
(Doc. No. 27.) Defendant filed a Response to Plaintiff’s objections on August 17, 2011 (Doc.
No. 18). The Court discusses the merits of Plaintiff’s objections below.
II.

STANDARD OF REVIEW
The Court’s review of the Report is de novo. 28 U.S.C. § 636(b). This review, however,

is limited to “a determination of whether substantial evidence exists in the record to support the
[Commissioner’s] decision and to a review for any legal errors.” Landsaw v. Sec’y of Health &
Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). Title II of the Social Security Act provides
that “[t]he findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). Accordingly, the reviewing
court will uphold the ALJ’s decision if it is supported by substantial evidence. Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Substantial evidence is a term of art and is defined
as “‘such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Richardson v. Perales, 402 U.S 389, 401 (1971) (quoting Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)). It is “more than a mere scintilla of evidence, but less than a
preponderance.” Bell v. Comm’r of Soc. Sec., 105 F.3d 244, 245 (6th Cir. 1996) (citing Consol.
Edison, 305 U.S. at 229).
“Where substantial evidence supports the Secretary’s determination, it is conclusive,
even if substantial evidence also supports the opposite conclusion.” Crum v. Sullivan, 921 F.2d
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642, 644 (6th Cir. 1990) (citing Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc)).
This standard of review is consistent with the well-settled rule that the reviewing court in a
disability hearing appeal is not to weigh the evidence or make credibility determinations, because
these factual determinations are left to the ALJ and to the Commissioner. Hogg v. Sullivan, 987
F.2d 328, 331 (6th Cir. 1993); Besaw v. Sec’y of Health & Human Servs., 966 F.2d 1028, 1030
(6th Cir. 1992). Thus, even if the Court would have come to different factual conclusions as to
the Plaintiff’s claim on the merits than those of the ALJ, the Commissioner’s findings must be
affirmed if they are supported by substantial evidence. Hogg, 987 F.2d at 331.
III.

PLAINTIFF’S OBJECTIONS TO THE MAGISTRATE JUDGE’S REPORT
Magistrate Judge Brown’s Report explains that review of the ALJ’s decision is limited to

Plaintiff’s medical records taken after September 24, 2005, the date of the previous ALJ decision
denying Plaintiff’s disability claim. (Doc. No. 16 at 12.) Administrative res judicata precludes
review of issues and facts that were resolved by a previous decision of the Commissioner, and
prior disability determinations preclude a finding of disability within a previously adjudicated
period. Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1232 (6th Cir. 1993). Thus,
Plaintiff must prove that her condition worsened to the point of becoming disabling after
September 24, 2005.
A. Plaintiff objects to the Magistrate Judge’s recommendation that substantial evidence
supports the ALJ’s evaluation of Plaintiff’s mental impairment.
When a claimant alleges a disabling mental impairment, an ALJ must first evaluate
whether the claimant has a medically determinable mental impairment and then rate the degree
of functional limitation resulting from the impairment. 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§ 12.00. Each listed mental impairment consists of paragraphs labeled A, B, and C describing
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the impairment. The ALJ must evaluate the “A” criteria, consisting of the “symptoms, signs, and
laboratory findings” of the claimant’s alleged medically determinable mental impairment. Id.
The ALJ must also evaluate the “B” criteria, which rate the claimant’s degree of functional
limitation and consist of four functional areas: activities of daily living; social functioning;
concentration, persistence, or pace; and episodes of decompensation.” Id. If the “B” criteria are
not satisfied, the ALJ must assess the “C” criteria, which provide similar criteria for evaluating
impairment-related functional limitations that are incompatible with the ability to do any gainful
activity. Id. A claimant is deemed to have a listed mental impairment if his medical record
satisfies the diagnostic description in the introductory paragraph and the criteria of both
paragraphs A and B, or A and C. Id.
In denying Plaintiff’s claim for benefits, the ALJ found that Plaintiff’s mental
impairments are non-severe. (Tr. 60.) The ALJ noted that although Plaintiff had been diagnosed
with anxiety and major depressive disorder, Plaintiff was in the process of being weaned off of
medication by November of 2009. (Id.) The ALJ also relied on a doctor’s assessment that the
Plaintiff had no limitation in activities of daily living, social functioning, and concentration,
persistence or pace, and no episodes of decompensation. (Id.) Finally, the ALJ stated that the
evidence in the record does not establish the presence of “C” criteria. (Id.)
As an initial matter, Magistrate Judge Brown considered records on Plaintiff’s psychiatric
treatment beginning in September of 2004, despite the prior ALJ decision in 2005, because it is
unclear whether the prior ALJ decision considered those records. (Id.) This Court agrees that
consideration of the earlier records is appropriate and will do the same. Magistrate Judge
Brown’s Report goes on to recommend a finding that substantial evidence supports the ALJ’s
determination on Plaintiff’s mental limitations, noting that Plaintiff offered little evidence to the
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contrary. (Doc. No. 16 at 16.) In addition to the evidence cited by the ALJ, Magistrate Judge
Brown cites Plaintiff’s GAF scores, Plaintiff’s improvement on medication in 2005, Plaintiff’s
testimony that she is able to microwave meals and do some light household chores, and the fact
that Plaintiff voluntarily stopped seeing a new provider. (Id. at 15-16.)
Plaintiff now objects that the record shows that her mental condition is a severe
impairment that would seriously interfere with her ability to work. (Doc. No. 17 at 1-2.)
Plaintiff argues that she has consistently had a GAF score of 45, which indicates serious
symptoms of mental impairment. (Id. at 1.) Plaintiff also cites various medical notes in the
record that describe the severity of her impairment. (Id. at 1-2.) Finally, Plaintiff states that she
has been on two medications for her mental disorders on a consistent basis. (Id. at 2.) Defendant
responds that Plaintiff’s objection “merely reiterates her lay interpretation of the evidence” and
does not acknowledge that much of the medical evidence predates the relevant period of time for
the disability evaluation. (Doc. No. 18 at 1.)
Plaintiff’s objection does not dispute any of the evidence relied on by the ALJ or
Magistrate Judge Brown. The Court agrees with Magistrate Judge Brown that substantial
evidence in the record supports the ALJ’s determination that Plaintiff’s mental impairments are
not severe enough to meet the requirements of a medically determinable impairment.
Specifically, substantial evidence supports the finding that Plaintiff’s functional limitations are
not severe.
The portions of Plaintiff’s medical notes which she quotes in support of her objection
consist of her own subjective complaints of her level of functioning, rather than the objective
opinions and observations of the clinicians. (Tr. 305, 307, 320.) Further, Plaintiff’s complaint
on September 27, 2005 that she was “unable to do most ADLs or clean home” was due to her
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back pain, not her mental conditions. (Tr. 307.) During the same time period, the clinicians
consistently evaluated Plaintiff’s depression and anxiety to be moderate, not severe. (Tr. 30208.) They also consistently determined that her financial, family, and social relationship
stressors were moderate or mild, and that her level of functioning was moderate. (Id.)
Further, Dr. Andrew Phay completed a psychiatric review of Plaintiff on November 24,
2007. (Tr. 272-85.) Dr. Phay determined that Plaintiff suffered from the medically determinable
impairment of anxiety, but that the impairment was non-severe. (Tr. 272.) Dr. Phay also
evaluated Plaintiff for the relevant B and C criteria, but found that she had no functional
limitations according to either criteria. (Tr. 382-83.) Dr. Phay determined that Plaintiff was able
to care for her own hygiene, cook meals, do some light cleaning, and buy groceries, and that she
had “no significant conflicts” getting along with others. (Tr. 384.) Dr. Phay concluded that
Plaintiff’s limitations were related primarily to her physical problems. (Id.)
Plaintiff makes much of her low GAF score. A GAF score is a clinician’s subjective
determination of an individual’s overall level of functioning. Kornecky v. Comm’r of Soc. Sec.,
167 F. App’x 496, 503 n.7 (6th Cir. 2006). Although the Report notes that Plaintiff’s scores
were as high as 65 at some time, the Court finds no evidence in the record that Plaintiff had a
current score higher than 45. A GAF of 41 to 50 means that a patient has serious symptoms or
serious impairment in social, occupational, or school functioning. Id. However, A GAF score is
not raw medical data, and it may have little or no bearing on social and occupational functioning.
Id. at 13. There is no requirement that an ALJ consider GAF scores, and if other substantial
evidence supports the conclusion that a claimant is not disabled, a court may not disturb the
denial of benefits because of a low GAF score. Id. at 14. Additionally, as discussed above, the

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same reports indicate that the clinicians found Plaintiff’s level of functioning to be moderate.
(Tr. 302-08.)
Substantial evidence exists in the record for the ALJ’s determination that Plaintiff’s
mental conditions did not impair her level of functioning to a severe enough degree to interfere
with her ability to do some work. At the least, there is no evidence that Plaintiff’s mental
impairments worsened since an ALJ denied her disability claim in September of 2005. The
Court therefore adopts Magistrate Judge’s recommendation that the ALJ properly evaluated
Plaintiff’s mental impairments.
B. Plaintiff objects to the Magistrate Judge’s recommendation that substantial evidence
supports the weight the ALJ gave to the opinion of Plaintiff’s physicians.
A “treating source” is one who has provided the claimant with medical treatment or
evaluation and who has had an ongoing treatment relationship with the claimant. 20 C.F.R.
§§ 404.1502, 416.902. Generally, the opinions of treating physicians are entitled to greater
weight than the opinions of non-treating physicians. Rogers v. Comm’r of Soc. Sec., 486 F.3d
234, 242 (6th Cir. 2007) (citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir.
2004)). If the opinion of the treating physician as to the nature and severity of the claimant’s
conditions is supported by accepted clinical and laboratory diagnostic tests and is not
inconsistent with other substantial evidence from the record, it will have controlling weight.
Rogers, 378 F.3d at 242.
In determining the weight the accord a treating physician’s opinion, the ALJ must
consider “a host of factors, including the length, frequency, nature, and extent of the treatment
relationship; the supportability and consistency of the physician’s conclusions; the specialization
of the physician; and any other relevant factors.” Id. When discounting the opinion of the
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treating physician, the ALJ must provide “good reasons” that are “‘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 that weight.’” Id. at 242 (quoting SSR 96-2p, 1996 WL
374188, at *4 (July 2, 1996)). The less consistent an opinion is with the record, the less weight it
will be given. See 20 C.F.R. §§ 404.1527(d)(3), 416.927(d)(3). Deciding what weight to give to
competing evidence, such as contradicting opinions by multiple treating physicians, is an
administrative finding for which the final authority resides with the Commissioner. See 20
C.F.R. § 416.927(e); Walker v. Sec’y Health & Human Servs., 980 F.2d 1066, 1070 (6th Cir.
1992).
In denying Plaintiff’s disability claim, the ALJ determined that Plaintiff has the capacity
to perform sedentary work with some limitations. (Tr. 61.) Sedentary work is defined as:
[L]ifting no more than 10 pounds at a time and occasionally lifting or carrying
articles like docket files ledgers and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of walking and standing is
often necessary in carrying out job duties. Jobs are sedentary if walking and
standing are required occasionally and other sedentary criteria are met.
20 C.F.R. § 404.1567(a). The ALJ determined that Plaintiff can perform sedentary work with
occasional postural limitations, occasional pushing and pulling with the arms, avoiding exposure
to concentrated temperature extremes, and having a sit/stand option at will. (Tr. 61.)
The ALJ stated that he gave significant weight to the opinion of Dr. Hazlewood,
Plaintiff’s treating physiatrist, that Plaintiff has the ability to push, pull or lift greater than fifteen
points and should avoid repetitive bending. (Tr. 63.) The ALJ also gave significant weight to
the opinion of Dr. Keown, a consultative examiner, who opined that Plaintiff does not have any
impairment-related limitations and that no evidence suggested a need for a restricted work
environment, but only to the extent that Dr. Keown’s opinion supports a finding that Plaintiff is
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capable of sedentary work. (Id.) The ALJ also gave significant weight to the opinion of
Plaintiff’s former physiatrist, Dr. Moore, that Plaintiff needs the ability to sit at will and should
avoid moderate exposure to extreme cold and high humidity. (Id.)
The ALJ gave little weight to the state-agency consultants’ assessments, and to the
opinion of Plaintiff’s primary care physician, Dr. McKinney, because he is not a specialist. (Tr.
64.) Dr. McKinney completed a Medical Source Statement regarding Plaintiff’s physical ability
to do work-related activities on March 21, 2008. (Tr. 400-05.) Dr. McKinney opined that
Plaintiff can occasionally lift and carry up to twenty pounds; can sit, stand, and walk for twenty
to thirty minutes at a time each, or for two to three hours total in a work day; can occasionally or
frequently perform activities using her hands, but never pushing or pulling; can climb stairs,
ramps, ladders, or scaffolds; cannot stop, kneel, crouch, or crawl; can occasionally be subjected
to environmental limitations; and can perform activities of daily living such as shipping,
preparing meals, and caring for personal hygiene. (Id.) Dr. McKinney completed another
Medical Source Statement in June of 2009 containing essentially the same evaluation, but with a
less restrictive view of Plaintiff’s ability to perform activities using her hands. (Tr. 516.)
Magistrate Judge Brown concludes in the Report that the ALJ properly treated Dr.
McKinney’s opinion because, although he treated Plaintiff for a range of medical problems, her
severe impairments were treated by the other doctors. (Doc. No. 16 at 17-18.) The Report notes
that a treating specialist’s opinion is typically given more weight than non-specialists under 20
C.F.R. § 404.1527(d)(5). (Id. at 17.) Magistrate Judge Brown also recommends that the ALJ did
not err in failing to adopt some of Dr. Moore’s opinions because they are inconsistent with Dr.
Moore’s treatment notes. (Id. at 18.) Plaintiff objects that Dr. McKinney’s and Dr. Moore’s
treatment notes are similar and not inconsistent with the record, and that Dr. McKinney
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consistently treated Plaintiff for her chronic back pain and fibromyalgia. (Doc. No. 17 at 2.)
Plaintiff also objects that although Dr. Moore’s treatment notes indicate improvement in
Plaintiff’s pain, they do not indicate improvement in functioning. (Id.)
The Court does not find that Dr. McKinney’s opinions as to Plaintiff’s limitations are
inconsistent with the ALJ’s determination that Plaintiff can perform sedentary work with
additional limitations. Therefore, the Court does not find that the disability determination would
be different if the ALJ had explicitly accorded Dr. McKinney’s opinions greater weight. For
example, Dr. McKinney opined that Plaintiff can occasionally lift and carry up to 20 pounds,
more than the requirements for sedentary work. Dr. McKinney also opined that Plaintiff could
not sit, stand, or walk for more than twenty or thirty minutes at a time, and the ALJ modified the
requirements for Plaintiff’s ability to perform sedentary work to include an at-will sit/stand
option. Dr. McKinney also determined that Plaintiff is capable of ambulating without assistance
and can handle paper and files. Even if the ALJ were to have improperly discounted those
opinions, a violation of the treating physician rule is harmless error if the Commissioner makes
findings consistent with the physician’s opinions. Friend v. Comm’r of Soc. Sec., 375 F. App’x
543, 551 (6th Cir. 2010) (citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 547 (6th Cir.
2004)).
The only apparent inconsistency between Dr. McKinney’s opinion and the ALJ’s
determination is that Dr. McKinney felt Plaintiff could never engage in pushing or pulling. As to
that specific finding, the ALJ relied on Dr. Hazlewood’s opinion that Plaintiff could occasionally
push or pull up to fifteen pounds. (Tr. 63.) As Magistrate Judge Brown noted, the opinion of a
treating specialist about medical issues related to his specialty is generally accorded greater
weight than the opinion of a non-specialist. 20 C.F.R. § 404.1527. The statute does not indicate,
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as Plaintiff suggests, that Dr. McKinney’s opinion must be given greater weight simply because
he also treated Plaintiff’s physical conditions. Further, the weight given to the competing
opinions of multiple treating physicians is an administrative finding for which the final authority
resides with the Commissioner. See 20 C.F.R. § 416.927(e); Walker, 980 F.2d at 1070.
Plaintiff has also objected to the ALJ’s failure to adopt certain opinions of Dr. Moore.
Specifically, Dr. Moore opined that Plaintiff would need to lie down twice per eight-hour work
shift and that her impairments would cause her to be absent from work about four days per
month. (Tr. 330-31.) Magistrate Judge Brown observed that around the same time as Dr.
Moore completed his Medical Source Statement, his treatment notes indicate that Plaintiff’s pain
had improved and that Plaintiff deferred an epidural steroid injection as treatment. (Doc. No. 16
at 18.) The Report also notes that by September 13, 2006, Dr. Moore’s treatment notes indicate
a fifty to sixty percent improvement in controlling Plaintiff’s pain and her overall quality of life.
(Id.)
An ALJ may accept parts of a physician’s opinion and reject other parts when such
treatment is supported by the record. Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 391-92 (6th
Cir. 2004). The Court finds that Dr. Moore’s opinions which the ALJ did not adopt are not
supported by the record. Dr. Moore completed an identical evaluation prior to Plaintiff’s last
disability determination, which the ALJ explicitly considered in that decision and then went on
to find that Plaintiff could perform a significant range of light work. (Tr. 77-79.) The ALJ
found Plaintiff not disabled at that time, and Dr. Moore’s treatment notes do not indicate
significant deterioration in Plaintiff’s condition since that time. In fact, Dr. Moore’s notes
indicate that Plaintiff eventually had significant improvement with her pain and quality of life
under his care. (Tr. 336, 340.) Accordingly, the Court agrees with Magistrate Judge Brown’s
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recommendation that the ALJ did not err in his consideration of the opinions of Plaintiff’s
physicians.
C. Plaintiff objects to the Magistrate Judge’s recommendation that substantial evidence
supports the ALJ’s evaluation of Plaintiff’s credibility.
An ALJ’s determination about a claimant’s credibility is to be accorded great weight and
deference, particularly since the ALJ is charged with the duty of observing the witness’s
demeanor and credibility. Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997)
(citing Villarreal v. Sec’y of Health & Human Servs., 818 F.2d 461, 463 (6th Cir. 1987)).
Nonetheless, an ALJ’s credibility determination must be supported by substantial evidence. Id.
The ALJ found that Plaintiff’s statements concerning the intensity, persistence and
limiting effects of her physical symptoms are not credible to the extent that they were
inconsistent with his determination that she could perform sedentary work. (Tr. 62.) The ALJ
noted that Plaintiff reported a fifty to sixty percent improvement in her pain control and quality
of life in September of 2006, and that the same treatment record indicated that Plaintiff required
frequent rest breaks only when performing activities exceeding light physical demand. (Id.) The
ALJ also cited objective medical tests of her physical abilities over the course of several years
that contradicted her reported limitations. (Tr. 62-63.) The ALJ observed Dr. Hazlewood’s
notes that Plaintiff was independent in all activities of daily living, that her medication improved
her quality of life, and that Dr. Hazlewood declined to fill out a disability form for Plaintiff. (Tr.
62.) The ALJ further relied on Dr. Keown’s report that Plaintiff did not give a reliable effort
during her examination and had normal ambulation when she did not think she was being
observed. (Tr. 63.) Finally, the ALJ noted several contradictions between Plaintiff’s testimony
and the medical record. (Id.)
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Magistrate Judge Brown recommends a finding that substantial evidence supports the
ALJ’s evaluation of Plaintiff’s credibility regarding her complaints of pain. (Doc. No. 16 at 19.)
The Report relies on Dr. Keown’s report that Plaintiff changed her ambulation when she knew
she was being observed, the scarcity of objective evidence of Plaintiff’s back pain and
fibromyalgia in the record, Plaintiff’s improvement on medication, and Dr. Hazlewood’s report
that he refused to support Plaintiff’s disability claim. (Id.) Plaintiff now objects that Dr.
Keown’s implication that Plaintiff was faking her severe pain is insufficient to diminish her
credibility, because Dr. Keown only briefly examined Plaintiff, and no other physicians have
ever made such a suggestion. (Doc. No. 17 at 3.) Further, Plaintiff objects that relying on Dr.
Hazlewood’s refusal to fill out a disability form reads too much into this fact, as many doctors
decline to become involved with disability claims. (Id.)
The Court notes that the records from Dr. Hazlewood’s office do not merely say that he
would not fill out a disability form for Plaintiff, but also that he “can’t support disability.” (Tr.
493.) This indicates to the Court that Dr. Hazlewood’s refusal goes beyond a general aversion to
assisting with disability claims. Further, Dr. Hazlewood had treated Plaintiff repeatedly for
several months by the time he refused to support disability. (Tr. 492, 494, 498-501.) The Court
therefore finds that the fact that Dr. Hazlewood declined to support Plaintiff’s disability claim
could reasonably contribute to substantial evidence supporting the ALJ’s credibility
determination.
Dr. Keown’s reports of Plaintiff’s unsatisfactory effort during her evaluation are also
more involved than Plaintiff asserts. Dr. Keown did not simply state that Plaintiff was “faking”
her pain, but rather that Plaintiff did not provide a reliable effort throughout the examination in
order for Dr. Keown to thoroughly evaluate her limitations. (Tr. 560-61.) Dr. Keown noticed
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that Plaintiff ambulated normally before the examination began, could lean forward to adjust
articles of clothing around her ankles while seated on the exam table, and did not show difficulty
using her hands to manipulate her clothing and belongings. (Tr. 561.) These observations were
contradicted by Plaintiff’s effort during the examination exercises. (Id.) Dr. Keown’s notes are
not insignificant to a credibility determination, despite the fact that it was Dr. Keown’s only
examination of Plaintiff.
As summarized above, the ALJ’s credibility determination did not rest solely on the
reports of Dr. Hazlewood and Dr. Keown, as Plaintiff asserts. Giving Plaintiff the benefit of the
doubt as to Dr. Hazlewood’s intentions, the other evidence cited by the ALJ in support of his
determination constitutes substantial evidence to discredit Plaintiff’s credibility. The ALJ did
not entirely discount Plaintiff’s subjective complaints, but rather only to the extent that the
complaints contradict her ability to do sedentary work. The overall record certainly supports
Plaintiff’s ability to do such physically undemanding work, and the ALJ’s assessment of
Plaintiff’s credibility is therefore supported by substantial evidence.
IV.

CONCLUSION
For the reasons stated above, the Court ADOPTS the Report, DENIES Plaintiff’s

Motion, and AFFIRMS the decision of the Commissioner. This Order terminates this Court's
jurisdiction over the above-styled action, and the case is DISMISSED.
It is so ORDERED.
Entered this the _9th ____ day of December, 2011.

___________________________________
JOHN T. NIXON, SENIOR JUDGE
UNITED STATES DISTRICT COURT
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