Bowen v. Social Security Administration et al

Filing 12

REPORT AND RECOMMENDATION re 9 MOTION for Judgment on the Record: The undersigned recommends that Plaintiff's Motion for Judgment on the Administrative Record be DENIED, and that the decision of the Commissioner be AFFIRMED. Signed by Magistrate Judge E. Clifton Knowles on 6/10/13. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(af)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
COOKEVILLE DIVISION
PATRICIA ELLEN BOWEN,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,1
Defendant.

Civil Action No. 2:12-cv-0022
Judge Nixon / Knowles

REPORT AND RECOMMENDATION
This is a civil action filed pursuant to 42 U.S.C. § 405(g), to obtain judicial review of the
final decision of the Commissioner of Social Security denying Plaintiff Disability Insurance
Benefits (“DIB”), as provided under Title II of the Social Security Act (“the Act”). The case is
currently pending on Plaintiff’s Motion for Judgment on the Administrative Record. Docket No.
9. Defendant has filed a Response, arguing that the decision of the Commissioner was supported
by substantial evidence and should be affirmed. Docket No. 11.
For the reasons stated below, the undersigned recommends that Plaintiff’s Motion for
Judgment on the Administrative Record be DENIED, and that the decision of the Commissioner
be AFFIRMED.
1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February
14, 2013. Pursuant to Fed. R. Civ. P. 25(d), Carolyn W. Colvin should therefore be substituted
for Commissioner Michael J. Astrue as the Defendant in this action. No further action needs to
be taken to continue this suit by reason of the last sentence of section 205(g) of the Social
Security Act, 42 U.S.C. § 405(g).
1

I. INTRODUCTION
Plaintiff protectively filed her application for Disability Insurance Benefits (“DIB”) on
April 21, 2009, alleging that she had been disabled since May 10, 2005, due to venous stasis,
depression, “overweight,” “extremely swollen” feet and ankles, and “underactive thyroid.” See,
e.g., Docket No. 5, Attachment (“TR”), pp. 97, 113. Plaintiff’s application was denied both
initially (TR 49) and upon reconsideration (TR 50). Plaintiff subsequently requested (TR 59)
and received (TR 96) a hearing. Plaintiff’s hearing was conducted on July 15, 2010, by
Administrative Law Judge (“ALJ”) Frank Letchworth. TR 29. Plaintiff and vocational expert
(“VE”), Katharine Bradford, appeared and testified. Id.
On August 26, 2010, the ALJ issued a decision unfavorable to Plaintiff, finding that
Plaintiff was not disabled within the meaning of the Social Security Act and Regulations. TR
21. Specifically, the ALJ made the following findings of fact:
1.

The claimant last met the insured status requirements of the
Social Security Act on December 31, 2007.

2.

Through December 31, 2007, the claimant engaged in
substantial gainful activity during 2005 (20 CFR
404.1520(b) and 404.1571 et seq.).

3.

However, there has been a continuous 12-month period(s)
during which the claimant did not engage in substantial
gainful activity. The remaining findings address the
period(s) the claimant did not engage in substantial gainful
activity up until her date last insured, December 31, 2007.

4.

Through the date last insured, the claimant had the
following severe impairments: Chronic Venous
Insufficiency; Morbid Obesity (20 CFR 404.1520(c)).

5.

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
2

Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525 and 404.1526).
The State Agency psychologist found there was insufficient
evidence to establish any severe mental impairment under
20 CFR 404.1521. In activities of daily living, the claimant
had no restriction. In social functioning, the claimant had
no difficulties. With regard to concentration, persistence or
pace, the claimant had no difficulties. As for episodes of
decompensation, the claimant had no episodes of
decompensation, each of extended duration. Because the
claimant’s mental impairments did not cause at least two
“marked” limitations or one “marked” limitation and
“repeated” episodes of decompensation, each of extended
duration, the “paragraph B” criteria were not satisfied. The
undersigned has also considered whether the “paragraph C”
criteria were satisfied. In this case, the evidence fails to
establish the presence of the “paragraph C” criteria.
6.

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 the
full range of light work as defined in 20 CFR 404.1567(b).

7.

Through the date last insured, the claimant was capable of
performing past relevant work as a retail clerk. This work
did not require the performance of work related activities
precluded by the claimant’s residual functional capacity
(20 CFR 404.1565).

8.

The claimant was not under a disability, as defined in the
Social Security Act, at any time from May 10, 2005, the
alleged onset date, through December 31, 2007, the date
last insured (20 CFR 404.1529(f)).

TR 14-21.
On October 26, 2010, Plaintiff timely filed a request for review of the hearing decision.
TR 8. On January 27, 2012, the Appeals Council issued a letter declining to review the case (TR
1-3), thereby rendering the decision of the ALJ the final decision of the Commissioner. This
civil action was thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. § 405(g). If the
3

Commissioner’s findings are supported by substantial evidence, based upon the record as a
whole, then these findings are conclusive. Id.
II. REVIEW OF THE RECORD
The parties and the ALJ have thoroughly summarized and discussed the medical and
testimonial evidence of Record. Accordingly, the Court will discuss those matters only to the
extent necessary to analyze the parties’ arguments.
III. CONCLUSIONS OF LAW
A. Standard of Review
This Court’s review of the Commissioner’s decision is limited to the record made in the
administrative hearing process. Jones v. Secretary, 945 F.2d 1365, 1369 (6th Cir. 1991). The
purpose of this review is to determine (1) whether substantial evidence exists in the record to
support the Commissioner’s decision, and (2) whether any legal errors were committed in the
process of reaching that decision. Landsaw v. Secretary, 803 F.2d 211, 213 (6th Cir. 1986).
“Substantial evidence” means “such relevant evidence as a reasonable mind would accept
as adequate to support the conclusion.” Her v. Commissioner, 203 F.3d 388, 389 (6th Cir. 1999)
(citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). “Substantial evidence” has been
further quantified as “more than a mere scintilla of evidence, but less than a preponderance.”
Bell v. Commissioner, 105 F.3d 244, 245 (6th Cir. 1996) (citing Consolidated Edison Co. v.
N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)).
The reviewing court does not substitute its findings of fact for those of the Commissioner
if substantial evidence supports the Commissioner’s findings and inferences. Garner v. Heckler,
745 F.2d 383, 387 (6th Cir. 1984). In fact, even if the evidence could also support a different

4

conclusion, the decision of the Administrative Law Judge must stand if substantial evidence
supports the conclusion reached. Her, 203 F.3d at 389 (citing Key v. Callahan, 109 F.3d 270,
273 (6th Cir. 1997). However, if the Commissioner did not consider the record as a whole, the
Commissioner’s conclusion is undermined. Hurst v. Secretary, 753 F.2d 517, 519 (6th Cir. 1985)
(citing Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980) (citing Futernick v. Richardson, 484
F.2d 647 (6th Cir. 1973))).
In reviewing the decisions of the Commissioner, courts look to four types of evidence:
(1) objective medical findings regarding Plaintiff’s condition; (2) diagnosis and opinions of
medical experts; (3) subjective evidence of Plaintiff’s condition; and (4) Plaintiff’s age,
education, and work experience. Miracle v. Celebrezze, 351 F.2d 361, 374 (6th Cir. 1965).
B. Proceedings At The Administrative Level
The claimant carries the ultimate burden to establish an entitlement to benefits by
proving his or her “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to last for a
continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). “Substantial gainful
activity” not only includes previous work performed by Plaintiff, but also, considering Plaintiff’s
age, education, and work experience, any other relevant work that exists in the national economy
in significant numbers regardless of whether such work exists in the immediate area in which
Plaintiff lives, or whether a specific job vacancy exists, or whether Plaintiff would be hired if he
or she applied. 42 U.S.C. § 423(d)(2)(A).
At the administrative level of review, the claimant’s case is considered under a five-step
sequential evaluation process as follows:

5

(1) If the claimant is working and the work constitutes substantial
gainful activity, benefits are automatically denied.
(2) If the claimant is not found to have an impairment which
significantly limits his or her ability to work (a “severe”
impairment), then he or she is not disabled.
(3) If the claimant is not working and has a severe impairment, it
must be determined whether he or she suffers from one of the
“listed” impairments2 or its equivalent. If a listing is met or
equaled, benefits are owing without further inquiry.
(4) If the claimant does not suffer from any listing-level
impairments, it must be determined whether the claimant can
return to the job he or she previously held in light of his or her
residual functional capacity (e.g., what the claimant can still do
despite his or her limitations). By showing a medical condition
that prevents him or her from returning to such past relevant work,
the claimant establishes a prima facie case of disability.
(5) Once the claimant establishes a prima facie case of disability,
the burden shifts to the Commissioner to establish the claimant’s
ability to work by proving the existence of a significant number of
jobs in the national economy which the claimant could perform,
given his or her age, experience, education, and residual functional
capacity.
20 C.F.R. §§ 404.1520, 416.920 (footnote added). See also Moon v. Sullivan, 923 F.2d 1175,
1181 (6th Cir. 1990).
The Commissioner’s burden at the fifth step of the evaluation process can be satisfied by
relying on the medical-vocational guidelines, otherwise known as “the grid,” but only if the
claimant is not significantly limited by a nonexertional impairment, and then only when the
claimant’s characteristics identically match the characteristics of the applicable grid rule.
Otherwise, the grid cannot be used to direct a conclusion, but only as a guide to the disability

2

The Listing of Impairments is found at 20 C.F.R., Pt. 404, Subpt. P, App. 1.
6

determination. Id. In such cases where the grid does not direct a conclusion as to the claimant’s
disability, the Commissioner must rebut the claimant’s prima facie case by coming forward with
particularized proof of the claimant’s individual vocational qualifications to perform specific
jobs, which is typically obtained through vocational expert testimony. See Varley v. Secretary,
820 F.2d 777, 779 (6th Cir. 1987).
In determining residual functional capacity for purposes of the analysis required at stages
four and five above, the Commissioner is required to consider the combined effect of all the
claimant’s impairments; mental and physical, exertional and nonexertional, severe and
nonsevere. See 42 U.S.C. § 423(d)(2)(B).
C. Plaintiff’s Statement Of Errors
Plaintiff contends that the ALJ: (1) improperly rejected the opinions of her treating
physician, Dr. Denise Dingle,3 (2) erred in finding that Plaintiff’s subjective complaints
regarding the limiting effects of her conditions were not credible, and (3) erred in finding that
Plaintiff could perform the full range of light work. Docket No. 10. Accordingly, Plaintiff
maintains that, pursuant to 42 U.S.C. § 405(g), the Commissioner’s decision should be reversed,
or in the alternative, remanded. Id.
Sentence four of § 405(g) states as follows:
The court shall have power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social Security,
with or without remanding the cause for a rehearing.

3

In passing, Plaintiff also contends that the ALJ erroneously failed to consider the 2009
opinion of Dr. Catherine Dale, who “had similar findings” to the 2007 findings of Dr. Wilcox.
See Docket No. 10 at 18.
7

42 U.S.C. §§ 405(g), 1383(c)(3).
“In cases where there is an adequate record, the Secretary’s decision denying benefits can
be reversed and benefits awarded if the decision is clearly erroneous, proof of disability is
overwhelming, or proof of disability is strong and evidence to the contrary is lacking.” Mowery
v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985). Furthermore, a court can reverse the decision and
immediately award benefits if all essential factual issues have been resolved and the record
adequately establishes a plaintiff's entitlement to benefits. Faucher v. Secretary, 17 F.3d 171,
176 (6th Cir. 1994). See also Newkirk v. Shalala, 25 F.3d 316, 318 (1994).
1. Weight Accorded to Plaintiff’s Treating Physician
Plaintiff argues that the ALJ should have accorded greater weight to the opinion of her
treating physician, Dr. Dingle. Docket No. 10. Specifically, Plaintiff contends that the ALJ
should have adopted Dr. Dingle’s 2009 opinion because, Dr. Dingle, as the treating physician,
“is generally more familiar with the patient’s condition than are other physicians.” Id. at 17.
Plaintiff argues that given Dr. Dingle’s familiarity with Plaintiff’s ailments, the ALJ should not
have rejected her opinion.4 Id.
Defendant responds that the ALJ appropriately rejected Dr. Dingle’s opinion and
explained why he did not find her opinion to be credible. Docket No. 11. Defendant submits
that the ALJ correctly determined that Dr. Dingle’s retroactive assessment of Plaintiff rendered

4

In this statement of error, Plaintiff also essentially argues that the ALJ’s refusal to
consider a 2009 opinion from Dr. Catherine Dale was erroneous, because Dr. Dale rendered
“similar findings” to those rendered by Dr. Wilcox in 2007, prior to Plaintiff’s December 31,
2007 date last insured. Docket No. 10. Although Plaintiff mentions this claim in her first
statement of error, she discusses this claim in detail in her second statement of error. Id.
Accordingly, the undersigned will do the same, and analyze this claim as part of Plaintiff’s
second statement of error.
8

twenty months after Plaintiff’s date last insured was “vague, unreliable, and inconsistent with her
treatment notes.” Id. at 8.
With regard to the evaluation of medical evidence, the Code of Federal Regulations
states:
Regardless of its source, we will evaluate every medical
opinion we receive. Unless we give a treating source’s opinion
controlling weight under paragraph (d)(2) of this section, we consider
all of the following factors in deciding the weight we give to any
medical opinion.
(1) Examining relationship. Generally, we give more weight
to the opinion of a source who has examined you than to the opinion
of a source who has not examined you.
(2) Treatment relationship. Generally, we give more weight
to opinions from your treating sources, since these sources are likely
to be the medical professionals most able to provide a detailed,
longitudinal picture of your medical impairment(s) and may bring a
unique perspective to the medical evidence that cannot be obtained
from the objective medical findings alone or from reports of
individual examinations, such as consultative examinations or brief
hospitalizations. If we find that a treating source’s opinion on the
issue(s) of the nature and severity of your impairment(s) is wellsupported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence
in your case record, we will give it controlling weight. When we do
not give the treating source’s opinion controlling weight, we apply
the factors listed in paragraphs (d)(2)(i) and (d)(2)(ii) of this section,
as well as the factors in paragraphs (d)(3) through (d)(6) of this
section in determining the weight to give the opinion . . .
(3) Supportability. The more a medical source presents
relevant evidence to support an opinion, particularly medical signs
and laboratory findings, the more weight we will give that opinion.
The better an explanation a source provides for an opinion, the more
weight we will give that opinion . . .
(4) Consistency. Generally, the more consistent an opinion
is with the record as a whole, the more weight we will give to that
opinion.
9

(5) Specialization. We generally give more weight to the
opinion of a specialist about medical issues related to his or her area
of specialty than to the opinion of a source who is not a specialist.
...
20 C.F.R. § 416.927(d) (emphasis added). See also 20 C.F.R. § 404.1527(d).
The ALJ must articulate the reasons underlying his decision to give a medical opinion a
specific amount of weight.5 See, e.g., 20 C.F.R. § 404.1527(d); Allen v. Commissioner, 561 F.3d
646 (6th Cir. 2009); Wilson v. Commissioner, 378 F.3d 541, 544 (6th Cir. 2004). The reasons
must be supported by the evidence and must be sufficiently specific so as to make clear to any
subsequent reviewers the weight the ALJ gave to the treating source medical opinion and the
reasons for that weight. SSR 96-2p.
The Sixth Circuit has held that, “provided that they are based on sufficient medical data,
the medical opinions and diagnoses of treating physicians are generally accorded substantial
deference, and if the opinions are uncontradicted, complete deference.” Howard v.
Commissioner, 276 F.3d 235, 240 (6th Cir. 2002)(quoting Harris v. Heckler, 756 F.3d 431, 435
(6th Cir. 1985)). If the ALJ rejects the opinion of a treating source, he is required to articulate
some basis for rejecting the opinion. Shelman v. Heckler, 821 F.2d 316, 321 (6th Cir. 1987). The
Code of Federal Regulations defines a “treating source” as:
[Y]our own physician, psychologist, or other acceptable medical

5

There are circumstances when an ALJ’s failure to articulate good reasons for the weight
accorded to medical opinions may constitute harmless error: (1) if a treating source opinion is so
patently deficient that the ALJ could not possibly credit it; (2) if the ALJ adopts the opinion or
makes findings consistent with the opinion; and/or (3) if the ALJ has complied with the goal of
20 C.F.R. §1527(d), by analyzing the physician’s contradictory opinions or by analyzing other
opinions of record. See, e.g., Friend v. Commissioner, 375 Fed. Appx. 543, 551 (6th Cir. April
28, 2010); Nelson v. Commissioner, 195 Fed. Appx. 462, 470-72 (6th Cir. 2006); Hall v.
Commissioner, 148 Fed. Appx. 456, 464 (6th Cir. 2006).
10

source who provides you or has provided you, with medical
treatment or evaluation and who has, or has had, an ongoing
treatment relationship with you.
20 C.F.R. § 404.1502.
Dr. Dingle treated Plaintiff for an extensive period of time, a fact that would justify the
ALJ’s according greater weight to her opinion than to other opinions, as long as that opinion was
supported by medically acceptable clinical and laboratory diagnostic techniques, and consistent
with the evidence of record. See TR 219-256. As will be discussed in greater detail below,
however, Dr. Dingle’s 2009 opinion was rendered retroactively, unsupported by the evidence of
record, and contradicted by evidence in the record. See TR 19-20. As the Regulations state, the
ALJ is not required to give controlling weight to a treating physician’s evaluation when that
evaluation is inconsistent with, or unsupported by, other substantial evidence in the record. See
20 C.F.R. § 416.927(d)(2) and 20 C.F.R. § 404.1527(d)(2). Instead, when there is contradictory
evidence, the treating physician’s opinion is weighed against the contradictory evidence under
the criteria listed above. Id. When the opinions are inconsistent with each other, the final
decision regarding the weight to be given to the differing opinions lies with the Commissioner.
20 C.F.R. § 416.927(e)(2).
The ALJ in the case at bar accorded the opinions expressed in Dr. Dingle’s September
15, 2009 Medical Source Statement “little weight” for the following reasons:
First, the undersigned notes Dr. Dingle dated the form September
15, 2009. Dr. Dingle has attempted to assess retroactively the
claimant’s condition so that the claimant would be found to
disabled [sic] before the expiration of the claimant’s date last
insured. While her sympathy for the claimant is patent, her
opinions are vague, unreliable, and inconsistent with her treatment
notes. For example, she states that the claimant’s obesity caused
“significant disfunction (sic) of her back and legs which limit her
11

ability to lift and carry.” In parentheses she stated: “(did occur
before Nov 2007).” It is unclear when the claimant’s ability to lift
became limited and what the limits were on a particular date. For
example, the undersigned is unable to determine whether the
claimant was able to lift more than 10 pounds in June 2005,
October 2006, or November 2007. This is particularly important
due to the regulatory requirement that impairments and limitations
exist for a continuous period of more than twelve months. This
type of specificity is particularly salient in this case because as Dr.
Dingle notes, she first treated the claimant in March 2000 and
“noted she had evidence of venous stasis with acute exacerbation
due to standing and walking all day at work.” However, the
claimant continued to work for five (5) years after March of 2000
thereby proving her condition was not disabling at that time even
though Dr. Dingle’s statement implies she was disabled in March
2000.
Another reason Dr. Dingle’s opinions are not persuasive is that her
treatment notes do not support her opinions. Her treatment notes
document the claimant’s conditions were stable and the main
treatment the claimant received was for her menopausal symptoms.
(Exhibit 4F). In fact in July 2005, Dr. Dingle expressly noted
there was no pitting edema and that the swelling in the claimant’s
feet was secondary to something other than edema. (Exhibit 4F at
p. 21). Dr. Dingle’s treatment notes also document the claimant’s
condition was stable in November 2005. (Exhibit 4F at p. 17).
Although the claimant’s venous stasis was noted, the only
treatments prescribed were diuretics and weight loss. The claimant
was not compliant with Dr. Dingle’s recommendation to lose
weight. Thereafter, there is no mention of venous stasis or
swelling until July 2006 when the claimant reported swelling even
though she had lost weight. (Exhibit 4F at p. 16). Thereafter there
was no complaint of leg swelling until May 2007. (Id. at p. 14). In
July she noted erythema or redness in the claimant’s legs; in
August 2007, Dr. Dingle noted there was no edema; and in
November 2007 she referred the claimant to Dr. Wilcox for
evaluation of “large lower leg secondary to venous stasis”. (Id. at
p. 13). Of course, as noted above, the claimant refused to comply
with Dr. Wilcox’s recommendations. Of note, the claimant never
had skin breakdown, ulcers, deep vein thrombosis or pitting
edema.
Third, it is difficult for the undersigned to believe that Dr. Dingle
has a distinct memory of the claimant’s condition (apart from her
12

treatment notes) in 2005, 2006, and 2007 such that she was able to
retroactively assess the claimant’s condition without her memory
being colored and influenced by the claimant’s subsequent
treatment and condition.
TR 19 (emphasis original).
Ultimately, regarding Dr. Dingle’s opinion, the ALJ stated:
The undersigned concludes for the above stated reasons, that Dr.
Dingle’s assessment is incredibly over-restrictive, and thus
internally inconsistent. Her conclusions are, at best, tenuous,
patently sympathetic to the claimant’s subjective complaints, and
unsupported by the objective findings. Accordingly, the
undersigned does not accept Dr. Dingle’s conclusions . . . .
TR 19-20.
As evidenced above, the ALJ clearly explained his rationale for finding that the opinions
expressed in Dr. Dingle’s September 15, 2009 Medical Source Statement should be accorded
“little weight.” The ALJ considered the evidence of record, reached a reasoned decision
regarding the weight to be accorded to Dr. Dingle’s opinion, and articulated the rationale for that
decision. The Regulations do not require more. Additionally, the ALJ’s decision to accord Dr.
Dingle’s opinion “little weight” was properly supported by substantial evidence. Plaintiff’s
argument that the ALJ should have accorded greater weight to the opinion of Dr. Dingle fails.
2. Subjective Complaints of Pain
Plaintiff contends that the ALJ erred in finding that her subjective complaints concerning
the intensity, persistence, and limiting effects of her symptoms and pain were not fully credible.
Docket No. 10. Specifically, Plaintiff argues that the ALJ did not consider the record as a whole,
because he did not consider 2009 reports from Dr. Catherine Dale and Dr. John Turnbull. Id.
Plaintiff suggests that even though her self-reported list of daily activities contradicts her

13

statements about the extent of her disability, the fact that subsequent assessments indicated that
she had Lymphedema and arthritis “so severe that knee replacement was recommended” could
support a conclusion that Plaintiff’s earlier statements about the extent of her disability had been
credible. Id.
Defendant responds that the ALJ “addressed Plaintiff’s credibility in great detail” and
properly discussed the contradictory evidence upon which he based his determination that her
subjective complaints regarding the extent of her disability were not fully credible. Docket No.
11. Defendant further contends that, because the 2009 reports from Drs. Dale and Turnbull were
dated almost two years after Plaintiff’s date last insured, and because the ALJ had properly
considered the medical evidence from the relevant time period, the ALJ was not bound to
consider these 2009 reports. Id.
The Sixth Circuit has set forth the following criteria for assessing a plaintiff’s subjective
allegations of pain and disabling symptoms:
[S]ubjective allegations of disabling symptoms, including pain, cannot alone
support a finding of disability...[T]here must be evidence of an underlying
medical condition and (1) there must be objective medical evidence to confirm
the severity of the alleged pain arising from the condition or (2) the objectively
determined medical condition must be of a severity which can reasonably be
expected to give rise to the alleged pain.
Duncan v. Secretary, 801 F.2d 847, 853 (6th Cir. 1986) (quoting S. Rep. No. 466, 98th Cong., 2d
Sess. 24) (Emphasis added); see also 20 C.F.R. §§ 404.1529, 416.929 (“[S]tatements about your
pain or other symptoms will not alone establish that you are disabled....”); and Moon v. Sullivan,
923 F.2d 1175, 1182-83 (“[T]hough Moon alleges fully disabling and debilitating
symptomology, the ALJ, may distrust a claimant’s allegations...if the subjective allegations, the
ALJ’s personal observations, and the objective medical evidence contradict each other.”).
14

Moreover, “allegations of pain...do not constitute a disability unless the pain is of such a
debilitating degree that it prevents an individual from engaging in substantial gainful activity.”
Bradley v. Secretary, 862 F.2d 1224, 1227 (6th Cir. 1988).
When analyzing the claimant’s subjective complaints of pain, the ALJ must also consider
the following factors and how they relate to the medical and other evidence in the record: the
claimant’s daily activities; the location, duration, frequency and intensity of claimant’s pain; the
precipitating and aggravating factors; and the other treatment or measures to relieve pain. See
Felisky v. Bowen, 35 F.3d 1027, 1039 (6th Cir. 1994) (construing 20 C.F.R. § 404.1529(c)(2)).
After evaluating these factors in conjunction with the evidence in the record, and by making
personal observations of the claimant at the hearing, an ALJ may determine that a claimant’s
subjective complaints of pain and other disabling symptoms are not credible. See, e.g., Walters
v. Commissioner, 127 F.3d 525, 531 (6th Cir. 1997); Blacha v. Secretary, 927 F.2d 228, 230 (6th
Cir. 1990); and Kirk v. Secretary, 667 F.2d 524, 538 (6th Cir. 1981).
An ALJ’s findings regarding a claimant’s credibility are to be accorded great weight and
deference, particularly because the ALJ is charged with the duty of observing the claimant’s
demeanor and credibility. Walters, 127 F.3d at 531 (citing Villarreal v. Secretary, 818 F.2d 461,
463 (6th Cir. 1987)). Discounting credibility is appropriate when the ALJ finds contradictions
among the medical reports, the claimant’s testimony, the claimant’s daily activities, and other
evidence. See Walters, 127 F.3d at 531 (citing Bradley, 682 F.2d at 1227; cf King v. Heckler,
742 F.2d 968, 974-75 (6th Cir. 1984); and Siterlet v. Secretary, 823 F.2d 918, 921 (6th Cir.
1987)). If the ALJ rejects a claimant’s testimony as not credible, however, the ALJ must clearly
state the reasons for discounting a claimant’s testimony (see Felisky, 35 F.3d at 1036), and the

15

reasons must be supported by the record (see King, 742 F.2d at 975).
Regarding Plaintiff’s credibility, the ALJ explained:
The claimant’s credibility has been undermined by inconsistent
statements relevant to the issue of disability. For example, at the
hearing, the claimant testified that she quit working due to her
medical condition. However, in her Disability Report she stated
that she stopped working “because of my medical condition and
other reasons”. (Exhibit 1E at p. 2). Further, she indicated that
she had been spending 16 hour days running (with her husband)
the pool/pool supply business. One can reasonably question
whether, although she was incapable of working extra hours on a
regular basis, she remained capable of working 40 hours per week
in a less demanding job. The claimant also testified that she
thought she her [sic] legs would get better and she would find a
job, but neither of those things happened. The undersigned views
this as an implicit admission that the claimant was able to work,
but just unable to find a job after closing her business. (Exhibit
1E).
Similarly she reported she saw Dr. Dingle for treatment and Dr.
Dingle had prescribed a water pill and compression stockings that
the claimant had made. (Exhibit 1E). However, Dr. Wilcox’s6
treatment notes document the claimant refused to even attempt
wearing compression stockings. (Exhibit 13F). The failure to
follow such simple advice is not the typical behavior of people
with totally disabling conditions.
The claimant has described daily activities which are not limited to
the extent one would expect, given the complaints of disabling
symptoms and limitations. The claimant’s activities of daily living
include taking care of her personal needs; helping her husband
with his medication; light cleaning; laundry; doing dishes; ironing;
making the beds; cooking dinner four times a week; and shopping
for groceries, pet food, toiletries, and household goods once a
week for two hours at a time. (Exhibit 5E). In addition, she
watches television, listens to the radio, pays bills, and drives. She
socializes with her girlfriends. They go to the movies, or to play
cards. She leaves the house every other day. She regularly goes to

6

Dr. A. Brian Wilcox, Jr., M.D. is a vascular surgeon who treated Plaintiff in December
of 2007. TR 327.
16

the post office, drug store, bank, and to the nursing home to see her
mother. She estimated in the Function Report that she completed
that she could lift 20 pounds and walk for 15 minutes, or one third
of a mile, before needing to rest for five minutes before resuming
her walk. She stated she used a treadmill for fifteen minutes every
day. She stated that she could pay attention for an hour at a time,
was “fine” following oral and written instructions; got along “fine”
with authority figures; stressful events kept her awake at night; and
she was okay with handling changes in routine. (Exhibit 5E).
Such activities are clearly not the activities of an individual with
totally disabling physical and/or mental conditions.
TR 17-18 (emphasis original)(footnote added).
The ALJ additionally discounted the credibility of Plaintiff’s subjective complaints as
follows:
In terms of the claimant’s venous insufficiency, it is well
established that in order to receive benefits, the claimant must
follow treatment prescribed by her doctor if this treatment can
restore her ability to work. Upon failure to follow the prescribed
treatment, benefit payments may be stopped, or in this case taken
into consideration in not awarding benefits. (20 CFR 404.1530(b)
and 20 CFR 416.930(b). In this case, the undersigned has taken
into consideration the claimant’s refusal to even attempt to follow
her vascular surgeon’s advice. If the claimant were as truly
disabled as she claims, she would at least attempt to comply with
this minimally demanding advice. However, she refused to make
even the slightest attempt at compliance. (Exhibit 13F). The
obvious inference is that she is not as disabled as she claims.
This inference is also supported by the fact the [sic] intermittent
treatment the claimant received due to her own actions. For
example she saw Dr. Dingle on October 20, 2006 and was told to
return in three months. However, in February 2007, the claimant
cancelled her February 20, 2007 appointment and did not see Dr.
Dingle again until March 28, 2007, an interval of five months
without treatment. (Exhibit 4F at p. 15). The claimant also
cancelled her appointments with Dr. Dingle on September 25,
2007 and October 19, 2007. (Exhibit 4F at p. 13). Again, this is
not the typical behavior of persons with totally disabling
impairments.

17

In terms of the claimant’s alleged depression, the claimant has
never received treatment from a mental health professional.
Instead, she has been treated by her primary care physician, Dr.
Dingle, who has never referred her to a specialist for treatment.
This suggests that any depression is mild and adequately treated by
her medication. Further supporting this conclusion is the fact that
the claimant has never required psychiatric or inpatient care and
takes very low doses of medication. (Exhibit 4F at p. 21). She
was first prescribed Lexapro and Xanax in May 2005. At her next
visit in July 2005 she reported the Lexapro was “helping lots”. In
September 2005 the claimant stated she was still depressed but
better than last year. (Exhibit 4F at p. 22). By November 2005 Dr.
Dingle noted her condition was stable. (Exhibit 4F at p. 17). At
her regular three month appointment in January 2006 the claimant
reported she was doing well. She denied symptoms of major
depressive disorder in April 2006; in July 2006, and October 2006
there was no mention of depression. At her next appointment, in
March 2007 Dr. Dingle noted minimal symptoms of major
depressive disorder. (Exhibit 4F at p. 15, 16, 17). Similarly, at her
appointment with Dr. Dingle on July 25, 2007, the claimant denied
any symptoms of major depressive disorder. (Exhibit 4F at p. 13).
There was no mention of depressive symptoms at her appointments
on October 26, 2006, June 26, 2007, August 24, 2007 either.
(Exhibit 4F at p. 13, 14, 15). At her last appointment before the
expiration of her date last insured on November 13, 2007, Dr.
Dingle noted the claimant was “cheerful” and had good affect.
(Exhibit 4F at p. 12).
In terms of her hypertension, Dr. Dingle’s treatment notes
document her blood pressure was adequately controlled by
medication. (Exhibit 4F at p. 12, 13, 14, 15, 16, 17).
TR 18-19.
As can be seen, the ALJ’s discussed rationale for finding Plaintiff’s subjective
complaints to be less than fully credible is extensive, detailed, and well-supported by the
evidence of record. The ALJ observed Plaintiff during her hearing, considered the objective and
testimonial evidence of record, and reached a reasoned decision; the ALJ’s findings are
supported by substantial evidence and the decision not to accord full credibility to Plaintiff’s

18

allegations was proper. Therefore, this claim fails.
As noted, Plaintiff also argues that the ALJ should have considered the 2009 opinions of
Drs. Catherine Dale and John Turnbull because, although those opinions were rendered nearly
two years after Plaintiff’s date last insured, they lend credence to the subjective complaints she
raised during her insured period. Docket No. 10. Specifically, Plaintiff contends that the ALJ’s
refusal to consider a November 17, 2009 opinion from Dr. Dale7 was erroneous, because Dr.
Dale rendered “similar findings” to those rendered by Dr. Wilcox in 2007 and because Dr.
Dale’s findings related to complaints that Plaintiff had been raising to Dr. Dingle since 2000. Id.
With regard to the ALJ’s refusal to consider the August 27, 2009 opinion of Dr. Turnball,
Plaintiff contends that Dr. Turnball’s finding of arthritis severe enough to warrant
recommending a knee replacement demonstrates that Plaintiff must have had severe arthritis
during the relevant time period, because “the development of arthritis in [her] knees could not
have advanced that much in less than two years.” Id. at 21.
Defendant argues that, because the ALJ addressed in detail the evidence relevant to the
period before Plaintiff’s date last insured, the ALJ was not required to discuss Dr. Dale’s opinion
rendered almost two years after Plaintiff’s date last insured “simply because Dr. Dale referenced

7

As a point of clarification, with regard to the ALJ’s alleged “refusal” to consider the
2009 opinions of Drs. Dale and Turnball, the undersigned notes that the ALJ actually stated:
It should be noted initially that the claimant’s date last insured is
December 31, 2007. Therefore, this opinion does not address
impairments or medical evidence after December 31, 2007.
TR 16 (emphasis original). Accordingly, the ALJ did not “refuse” to consider these two
opinions specifically, but rather, simply declined to address any impairments or evidence from
after the relevant date last insured.
19

Plaintiff’s complaints to Dr. Dingle.” Docket No. 11 at 10. With respect to Plaintiff’s
contention that Dr. Turnball’s 2009 recommendation for a knee replacement demonstrates that
Plaintiff must have had severe arthritis during the relevant time period, Defendant responds,
“such speculation on Plaintiff’s part is hardly sufficient to undermine the ALJ’s detailed analysis
of the contemporaneous medical evidence contained in the reports of treating physician Dr.
Dingle.” Id. fn 5 at 10-11.
As an initial matter, Plaintiff did not see Dr. Turnball or Dr. Dale until 2009, almost two
years after her date last insured. See TR 283-84, 294. Evidence related to events after a
claimant’s date last insured need only be considered to the extent that it is relevant to Plaintiff’s
condition before her date last insured. Higgs v. Bowen, 880 F.2d 860, 863 (1988).
Dr. Turnball evaluated Plaintiff on August 27, 2009 for complaints of “bilateral knee
pain.” TR 294. Upon examination, Dr. Turnball noted that Plaintiff had full extension of her
knees to 110 degrees of flexion limited by soft tissues. Id. He also noted that Plaintiff reported
pain with palpation over the medial joint lines bilaterally, but that “[t]here is no instability of
either knee.” Id. Dr. Turnball ordered standing bilateral x-rays of Plaintiff’s knees, which
revealed “severe arthritic changes in the medial compartments of both knees, right
radiographically worse than left,” and “patellofemoral arthrosis.” Id. With regard to Plaintiff’s
treatment plan, Dr. Turnball noted:
I recommend since she has not tired [sic] any significant
conservative measures to this point that she concentrate on
strengthening her legs. We taught her some exercises today. I also
had a long discussion with her about weight loss. Also
recommended injections. I injected both knees under sterile
conditions without complication. She will follow up with us in
about 6 weeks to see how she has done.

20

Id.
As can be seen, Dr. Turnball’s August 27, 2009 in no way references severe arthritis
warranting a knee replacement. In fact, noting that Plaintiff had not even tried any conservative
treatment measures to that point, Dr. Turnball recommended conservative measures such as
exercise, weight loss, and injections. Dr. Turnball’s findings neither support Plaintiff’s
subjective claim that her impairments are of disabling severity, nor bolster her credibility. The
ALJ’s refusal to consider this post-date last insured record is not reversible error; Plaintiff’s
contention fails.
With respect to Plaintiff’s contentions regarding the 2009 assessment from Dr. Dale, Dr.
Dale evaluated Plaintiff as “a consultation requested by [blank space] for legs,” on November
17, 2009, nearly two years after Plaintiff’s date of last insured. TR 283-84. After discussing
Plaintiff’s reported medical, familial, and social history, including complaints that Plaintiff had
experienced lower extremity swelling since age 16, which had progressively worsened over 40
years, Dr. Dale performed her examination of Plaintiff. Id. In her “Review of Systems,” Dr.
Dale noted, inter alia, that: (1) Plaintiff’s skin was negative for a change in size or color,
negative for a rash, and negative for any bruising; (2) Plaintiff’s ankles were swollen, but she did
not experience pain in her calf or hip when walking; and (3) Plaintiff did not have any
deformities of her bones or joints, and did not have any limitation of movement, but did have
arthritis and numbness in her extremities. TR 283. Dr. Dale also noted that Plaintiff’s skin had
no visible rash, no suspicious nevi or skin lesions or subcutaneous nodules; that Plaintiff’s
extremities had no clubbing, cyanosis, edema, ulceration, or gangrene; and that Plaintiff’s gait
was symmetric and unlabored. TR 284. Dr. Dale reviewed a lower extremity venous ultrasound

21

performed in September 2008 and reported that the ultrasound revealed no evidence of deep vein
thrombosis and no evidence of significant sophenaus venous reflux in Plaintiff’s bilateral lower
extremities. Id. Dr. Dale assessed Plaintiff with Lymphedema, and prescribed Plaintiff
compression hose, to be re-fitted every three to six months. Id. Dr. Dale noted that there was no
medical or surgical treatment for Lymphedema, but there were measures to provide symptom
relief. Id. In order to obtain “symptomatic improvement,” she recommended that Plaintiff
“constant[ly]” wear compression hose “every” day. Id.
As noted, Plaintiff was referred to Dr. Dale for evaluation of her legs. As can be seen,
however, Dr. Dale’s examination of Plaintiff yielded predominately normal results. While Dr.
Dale diagnosed Plaintiff with Lymphedema,8 she noted, inter alia, that Plaintiff’s extremities had
no clubbing, cyanosis, edema, ulceration, or gangrene, and that Plaintiff’s gait was symmetric
and unlabored; she prescribed compression hose. The ALJ was aware of Plaintiff’s claimed
ailments, and, as has been demonstrated in the quoted passages supra, discussed them at length
in his decision. Dr. Dale’s findings do not bolster Plaintiff’s credibility, nor do they demonstrate
either that Plaintiff was disabled under the Act, or that Plaintiff’s impairments had worsened to
disabling levels. The Regulations do not require the ALJ to discuss an opinion rendered nearly
two years after the date last insured simply because it references earlier complaints, when that
opinion lacks evidence of disability and the ALJ has appropriately discussed the complaints at
length. Plaintiff’s argument that the ALJ committed reversible error by not considering Dr.
Dale’s November 17, 2009 opinion fails.

8

Lymphedema is edema of the extremities due to a disorder of the lymphatic circulation.
See 20 CFR Pt. 404, Subpt. P, Appt. 1, §§ 4.00 and 4.11.
22

3. Residual Functional Capacity
Plaintiff argues that the ALJ erred in finding that she could perform the full range of light
work as defined in 20 CFR. 404.1567(b). Docket No. 10. Specifically, Plaintiff claims that she
could only walk for fifteen minutes, and that performing the full range of light work would
require more extensive walking than she could do. Id. Plaintiff additionally contends that, even
if she could lift twenty pounds as she reported, she would be unable to walk or stand or use leg
controls because of her lymphedema, since “standing or walking for long periods of time is one
of the very worst things that a person with lymphedema can do.” Id. Plaintiff also contends that
she would need to elevate her legs while sitting. Id. Plaintiff asserts that these factors are
consistent with the RFC determined by Dr. Dingle, which the ALJ should have accepted. Id.
Plaintiff further asserts that because the VE testified that Plaintiff had no skills transferable to
sedentary work, and Plaintiff should have been restricted to “at most” sedentary work, the ALJ
should have found Plaintiff to be disabled. Id.
Defendant responds that the ALJ assigned Plaintiff a RFC for light work based on
Plaintiff’s own report that she could lift twenty pounds. Docket No. 11. Defendant also argues
that Plaintiff, in her report, did not assert that she could only walk for fifteen minutes per
workday, but rather, that she could walk for fifteen minutes or one-third of a mile at one time
before taking a five minute break then continuing. Id. Defendant contends that even if Plaintiff’s
statement that she could only walk for fifteen minutes at one time before taking a break then
continuing precluded her from performing the full range of light work, the ALJ’s determination
would still be appropriate as the ALJ did not find Plaintiff’s statements to be credible. Id.
“Residual Functional Capacity” is defined as the “maximum degree to which the

23

individual retains the capacity for sustained performance of the physical-mental requirements of
jobs.” 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(c). With regard to the evaluation of physical
abilities in determining a claimant’s Residual Functional Capacity, the Regulations state:
When we assess your physical abilities, we first assess the nature
and extent of your physical limitations and then determine your
residual functional capacity for work activity on a regular and
continuing basis. A limited ability to perform certain physical
demands of work activity, such as sitting, standing, walking,
lifting, carrying, pushing, pulling, or other physical functions
(including manipulative or postural functions, such as reaching,
handling, stooping or crouching), may reduce your ability to do
past work and other work.
20 C.F.R. § 404.1545(b).
Plaintiff’s sole point of contention with the ALJ’s RFC determination is essentially that
her Lymphedema places restrictions upon her that are not consistent with being able to perform a
full range of light work, and that these restrictions are supported by the opinion of Dr. Dingle
such that they should have been adopted. See Docket No. 10. Although Plaintiff, in her Brief,
argues that she is able to walk for only fifteen minutes during the course of a workday, in the
function report that she personally completed, she wrote that she “can probably lift 20 lbs. and
walk 15 minutes.” Id., TR 146. In her function report, Plaintiff also stated that she could walk
for one-third of a mile before needing to stop and rest for five minutes and then continuing. Id.
Plaintiff additionally asserts that she would need to elevate her legs while sitting. Docket No.
10. If Plaintiff’s statements regarding her Lymphedema-based restrictions and her being limited
to walking only one-third of a mile before needing a five minute break were found to be
credible, Plaintiff would, in fact, fall short of being able to perform a full range of light work. As
discussed above, however, the ALJ properly discounted Plaintiff’s subjective complaints, finding
24

them contradictory to, and unsupported by, the evidence of record. Accordingly, the ALJ did not
have to accept Plaintiff’s asserted limitations.
The ALJ’s evaluation of Dr. Dingle’s opinion has been discussed in detail above, and
will not be repeated here. The ALJ properly considered Dr. Dingle’s records and 2009
retroactive opinion, and appropriately accorded that opinion “little weight.” As such, the ALJ is
not bound to base his RFC determination of Plaintiff on Dr. Dingle’s expressed opinion.
After considering the evidence of record and discussing that evidence at length, the ALJ
ultimately determined that Plaintiff retained the RFC to perform the full range of light work. TR
16. Specifically, the ALJ determined that Plaintiff could perform her past relevant work as a
retail clerk. TR 20. The ALJ’s determination that Plaintiff could perform her past relevant work
as a retail clerk is supported by the testimony of the VE, who testified at Plaintiff’s hearing that
Plaintiff had “transferable skills to the light, semi-skilled occupation of sales clerk.” TR 46. As
explained in greater detail above, the ALJ’s decision regarding Plaintiff’s ability to work is
further supported by her reported activities and by objective testing. The ALJ properly evaluated
the objective and testimonial evidence of record when determining Plaintiff’s RFC, and the
ALJ’s RFC determination was supported by substantial evidence. Accordingly, the ALJ’s
determination must stand.
IV. RECOMMENDATION
For the reasons discussed above, the undersigned recommends that Plaintiff’s Motion for
Judgment on the Administrative Record be DENIED, and that the decision of the Commissioner
be AFFIRMED.

25

Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after service of this Report and Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party opposing said objections shall have
fourteen (14) days after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985),
reh’g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.

________________________________
E. CLIFTON KNOWLES
United States Magistrate Judge

26