Melton v. Social Security Administration

Filing 20

REPORT AND RECOMMENDATION: For the reasons stated above, the Court RECOMMENDS that Plaintiff's Motion for Summary Judgment, (Doc. 15), be DENIED. Signed by Magistrate Judge Patricia T. Morris on 2/20/2018. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NORTHEASTERN DIVISION
SANDRA KAYE MELTON,
Plaintiff,
vs.

Civil Action No. 2:16-cv-00027
JUDGE ALETA A. TRAUGER
MAGISTRATE JUDGE PATRICIA T. MORRIS

SOCIAL SECURITY ADMINISTRATION,
Defendant.
________________________/

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION ON
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

I.

RECOMMENDATION
In light of the entire record in this case, I suggest that substantial evidence

supports the Commissioner’s determination that Plaintiff is not disabled. Accordingly, IT
IS RECOMMENDED that Plaintiff’s Motion for Summary Judgment, (Doc. 15), be
DENIED.
II.

REPORT
A.

Introduction and Procedural History

Pursuant to 28 U.S.C. § 636(b)(1), Federal Rule of Civil Procedure 72, and by
Notice of Reference, this case was referred to the undersigned Magistrate Judge for the
purpose of reviewing a final decision by the Commissioner of Social Security denying
Plaintiff Sandra Kaye Melton’s claim for Disability Insurance Benefits (“DIB”) under
1

Title II, 42 U.S.C. § 401 et seq., and Supplemental Security Income benefits (“SSI”)
under Title XVI, 42 U.S.C. § 1381 et seq. (Doc. 19). The matter is currently before the
Court on Plaintiff’s Motion for Summary Judgment. (Doc. 15).
On November 1, 2012 and November 9, 2012, Plaintiff filed applications for SSI
and DIB, respectively, alleging a disability onset date of June 30, 2005. 1 (Tr. 204-17).
The Commissioner denied her claims initially and on reconsideration. (Tr. 87-88, 12021). Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ”),
which occurred on November 26, 2014, before ALJ James Dixon. (Tr. 37-60). The ALJ
issued a decision on March 26, 2015, finding Plaintiff not disabled. (Tr. 18-34). On
March 4, 2016, the Appeals Council denied review, (Tr. 1-6), and Plaintiff filed for
judicial review of that final decision on May 5, 2016. (Doc. 1). Plaintiff filed the instant
Motion on October 5, 2016, (Doc. 15), and the Commissioner responded on November 2,
2016, (Doc. 18).
B.

Standard of Review

The district court has jurisdiction to review the Commissioner’s final
administrative decision pursuant to 42 U.S.C. § 405(g). The district court’s review is
restricted solely to determining whether the “Commissioner has failed to apply the
correct legal standard or has made findings of fact unsupported by substantial evidence in
the record.” Sullivan v. Comm’r of Soc. Sec., 595 F App’x. 502, 506 (6th Cir. 2014)
(internal quotation marks omitted). Substantial evidence is “more than a scintilla of

1

At the hearing, Plaintiff attempted to amend her alleged onset date to January 1, 2013, (Tr. 41),
but the ALJ denied this request as moot in his written decision, (Tr. 21).

2

evidence but less than a preponderance; it is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Rogers v. Comm’r of Soc. Sec., 486
F.3d 234, 241 (6th Cir. 2007) (internal quotation marks omitted).
The Court must examine the administrative record as a whole, and may consider
any evidence in the record, regardless of whether it has been cited by the ALJ. See
Walker v. Sec’y of Health & Human Servs., 884 F.2d 241, 245 (6th Cir. 1989). The Court
will not “try the case de novo, nor resolve conflicts in the evidence, nor decide questions
of credibility.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.
1994). If the Commissioner’s decision is supported by substantial evidence, “it must be
affirmed even if the reviewing court would decide the matter differently and even if
substantial evidence also supports the opposite conclusion.” Id. at 286 (internal citations
omitted).
C.

Framework for Disability Determinations

Under the Act, “DIB and SSI are available only for those who have a ‘disability.’”
Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). “Disability” means 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), 1382c(a)(3)(A) (DIB); 20 C.F.R. § 416.905(a) (SSI). The
Commissioner’s regulations provide that disability is to be determined through the
application of a five-step sequential analysis:
3

(i) At the first step, we consider your work activity, if any. If
you are doing substantial gainful activity, we will find that
you are not disabled.
(ii) At the second step, we consider the medical severity of
your impairment(s). If you do not have a severe medically
determinable physical or mental impairment that meets the
duration requirement . . . or a combination of impairments that
is severe and meets the duration requirement, we will find that
you are not disabled.
(iii) At the third step, we also consider the medical severity of
your impairment(s). If you have an impairment(s) that meets
or equals one of our listings in appendix 1 of this subpart and
meets the duration requirement, we will find that you are
disabled.
(iv) At the fourth step, we consider our assessment of your
residual functional capacity and your past relevant work. If
you can still do your past relevant work, we will find that you
are not disabled.
(v) At the fifth and last step, we condiser our assessment of
your residual functional capacity and your age, education, and
work experience to see if you can make an adjustment to other
work. If you can make an adjustment to other work, we will
find that you are not disabled. If you cannot make an
adjustment to other work, we will find that you are disabled.

20 C.F.R. §§ 404.1520, 416.920; see also Heston v. Comm’r of Soc. Sec., 245 F.3d 528,
534 (6th Cir. 2001). “Through step four, the claimant bears the burden of proving the
existence and severity of limitations caused by [his or] her impairments and the fact that
she is precluded from performing [his or] her past relevant work.” Jones v. Comm’r of
Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). The burden transfers to the Commissioner if
the analysis reaches the fifth step without a finding that the claimant is not disabled.
Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006). At the fifth step, the
4

Commissioner is required to show that “other jobs in significant numbers exist in the
national economy that [the claimant] could perform given [his or] her RFC [residual
functional capacity] and considering relevant vocational factors.” Rogers, 486 F.3d at 241
(citing 20 C.F.R. §§ 416.920(a)(4)(v), (g)).
Under the authority of the Social Security Act, the SSA has promulgated
regulations that provide for the payment of disabled child’s insurance benefits if the
claimant is at least eighteen years old and has a disability that began before age twentytwo (20 C.F.R. 404.350(a) (5) (2013). A claimant must establish a medically
determinable physical or mental impairment (expected to last at least twelve months or
result in death) that rendered her unable to engage in substantial gainful activity. 42
U.S.C. § 423(d)(1)(A). The regulations provide a five-step sequential evaluation for
evaluating disability claims. 20 C.F.R. § 404.1520.
D.

ALJ Findings

Following the five-step sequential analysis, the ALJ found Plaintiff not disabled.
(Tr. 21-29). At Step One, the ALJ found that Plaintiff last met the insured status
requirements of the Social Security Act on March 31, 2013, and had not engaged in
substantial gainful activity in the interval between her alleged onset date of June 30,
2005, and her date last insured. (Tr. 23-24). At Step Two, the ALJ concluded that the
following impairments qualified as severe: arthritis and hearing loss. (Tr. 24). The ALJ
also decided, however, that none of these met or medically equaled a listed impairment at
Step Three. (Tr. 24-25). Thereafter, the ALJ found that during the relevant time period

5

Plaintiff had the residual functional capacity (“RFC”) to perform medium work except
for the following limitations:
lifting a maximum of about fifty pounds occasionally and twenty-five
pounds frequently; standing and/or walking about six - eight hours in an
eight-hour workday; sitting about six – eight hours in an eight-hour
workday; unlimited pushing or pulling; frequent climbing ramps or stairs,
bending, stooping, kneeling, squatting, crouching, and crawling; and
occasional climbing ladders, ropes, or scaffolds.
(Tr. 25). At Step Four, the ALJ found Plaintiff did not have past relevant work. (Tr. 27).
Proceeding to Step Five, the ALJ determined there were jobs that existed in significant
numbers in the national economy that Plaintiff could perform, and thus Plaintiff was not
disabled. (Tr. 28-29).
E.

Administrative Record
1.

Medical Evidence

The Court has reviewed Plaintiff’s medical record. In lieu of summarizing her
medical history here, the Court will make references and provide citations to the record
as necessary in its discussion of the parties’ arguments.
2.

Application Reports and Administrative Hearing
i.

Function Report

On December 14, 2012, Plaintiff filled out a Function Report which appears in the
administrative record. (Tr. 274-81). She described her condition as causing extensive
joint pain that interfered with sleep and everyday activities. (Tr. 274). Treatments such as
steroid shots proved both ineffective and dangerous because they made her “heart jump
all over my chest.” (Id.). “I don’t have the [energy] to do things like I did.” (Tr. 275).
6

Despite these issues, her conditions did not interfere with any personal-care activities
(i.e., bathing, dressing, shaving, etc.), and she remained able to cook three times a week.
(Tr. 275-76). She continued to clean and do laundry twice a week, though “I have to
make myself [do so] sometimes.” (Tr. 276). She went out every day but could not drive
because “my hearing is bad and I was afraid to learn . . . .” (Tr. 277). She shopped for
groceries once a month for thirty minutes, and handled her own finances. (Id.). She had
no hobbies. (Tr. 278). She tended to avoid social activities outside her homestead because
the activities made her “feel stiff” and her hearing problems made interaction more
difficult. (Id.). Nevertheless, her children came to visit her once a week. (Id.). If she
decided to go to church, she would “have my husband or kids . . . go with me because it’s
hard for me to hear. So they can tell me what was said.” (Id.).
Prompted to mark abilities with which her conditions interfered, she marked:
lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, talking, hearing,
stair climbing, completing tasks, concentration, understanding, following instructions,
and using her hands. (Tr. 279). “My joints hurt[] when I try and do any of the things
listed.” (Id.). She could walk three-hundred feet before needing fifteen-minutes’ rest.
(Id.). Though written instructions posed no hurdle for her, she was “not good” at
following spoken instructions. (Id.). Summarizing her claim to disability, she wrote:
My life has changed because of my condition. I can’t work a 40 [hour] week
anymore. I can barely work 2 days a week and that bothers me. I don’t do
things like I did [because] I hurt every day and I don’t have the energy like I
did. I can’t take anything for it but [Tylenol because] my stomach won’t let
me. It’s hard for me to move fast [because] my joints won’t let me [because]
I’m stiff. It’s hard for me to keep a job [because] my hearing I can’t
7

understand what they want me to do. I have to sit down a lot because I hurt
and I get tired.”
(Tr. 281). This concluded her Function Report.
ii.

Plaintiff’s Testimony at the Administrative Hearing

After Plaintiff voiced a request to amend her alleged onset date to January 1, 2013,
(Tr. 41), the ALJ opened the hearing with an overview of Plaintiff’s background. He
noticed that Plaintiff “had eight previous applications for disability going all the way
back to the ‘90s, including a previous unfavorable decision with a judge back in 1995.”
(Tr. 44). In the past, she worked as a cook at a school, a cook at a fast food restaurant, a
dietary aide, and a housekeeper. (Id.). After establishing these details for the record, the
ALJ asked Plaintiff what kept her from being able to work full-time. (Tr. 47). She
identified “the pain in my back, my shoulders, and . . . the fatigue” as the main culprits
for her difficulty, as well as “real bad muscle spasms” in her back and “arthritis in my
shoulders . . . my knees, my hands, [and] my feet.” (Id.). “My right ear’s completely
gone,” and her doctor said “a hearing aid wouldn’t help it at all,” though the option
remained for her left ear. (Tr. 48). “I’ve had surgery done on my left ear.” (Id.).
Plaintiff then indicated that her arthritis ran in her family, and significantly
affected her shoulders and back. (Tr. 49-50). She estimated an ability to walk or stand for
about thirty minutes before needing to sit, and an ability to lift up to five pounds. (Tr. 50).
In June or July 2014, she started receiving joint injections in her shoulders. (Tr. 51). She
also took Tylenol and Ibuprofen, but “I’ve got to be careful about what I take because my
stomach is so sensitive to medication.” (Tr. 52). Although her doctor prescribed a muscle
8

relaxer, for instance, “I don’t take it very often because it makes me feel really funny.”
(Id.). She worked a part-time job for four hours at a time, four nights a week, and when
she returned home would do “a few little things around the house, . . .” (Tr. 53).
iii.

The VE’s Testimony at the Administrative Hearing

The VE began by classifying Plaintiff’s past work: a “maid, housekeeper,” a
“short-order cook,” a “traditional cook,” and a “dietary aide.” (Tr. 55). Thereafter, the
ALJ posed his first hypothetical: “[A]ssume a hypothetical individual the same age,
education, and past work experience as [Plaintiff], with the following physical limitations
. . . [of] lifting and/or carrying including up to 50 pounds occasionally, 25 pounds
frequently. Standing and/or walking with normal breaks about six out of eight. Sitting
with normal breaks about six out of eight. Unlimited pushing, pulling of the hand and
foot controls within those exertional limitations. Frequent postural activities except
occasional climbing of ladders, ropes, or scaffolds. There are no manipulative or visual
limitations. Avoid all exposure to very noisy environments such as heavy traffic,
manufacturing plant noises. Would those limitations allow for any of the past jobs that
[Plaintiff] has done?” (Tr. 56). The VE indicated that such an individual could perform
all of Plaintiff’s past jobs, and that other jobs existed which she could perform as well,
including: “hand packager” (with 3,300 local jobs and 127,000 national jobs), “machine
cleaner” (with 3,400 local jobs and 151,000 national jobs), and “laundry laborer” (with
10,000 local jobs and 437,000 national jobs). (Tr. 56-57). The VE also clarified that
“none of those three jobs would be negatively impacted by the noise limitation in this
RFC.” (Tr. 57).
9

For his second hypothetical, the ALJ provided for “lifting and carrying less than
10 pounds frequently, 10 to 20 pounds occasionally. Standing, walking up to 30 minutes
at one time without interruption. Total of three out of eight each. Sitting up to 30 minutes
at one time without interruptions for a total of three out of eight hours. Able to walk two
city blocks without rest or significant pain. Will need to shift positions at will from
sitting, standing, or walking approximately hourly for 15 minutes each before returning to
work. No manipulative limitations. Would those limitations allow for any work, past or
otherwise?” (Tr. 57-58). The VE initially said they “would allow for sit/stand positions in
the light exertional level,” but clarified that in fact “no jobs” would exist for such an
individual. (Tr. 58-59).
F.

Governing Law

The ALJ must “consider all evidence” in the record when making a disability
decision. 42 U.S.C. § 423(d)(5)(B). The regulations carve the evidence into various
categories, “acceptable medical sources” and “other sources.” 20 C.F.R. § 404.1513.
“Acceptable medical sources” include, among others, licensed physicians and licensed or
certified psychologists. Id. § 404.1513(a). “Other sources” include medical sources who
are not “acceptable” and almost any other individual able to provide relevant evidence.
Id. § 404.1513(d). Only “acceptable medical sources” can establish the existence of an
impairment. SSR 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 2006). Both

“acceptable”

and non-acceptable sources provide evidence to the Commissioner, often in the form of
opinions “about the nature and severity of an individual’s impairment(s), including
symptoms, diagnosis and prognosis, what the individual can still do despite the
10

impairment(s), and physical and mental restrictions.” Id.. When “acceptable medical
sources” issue such opinions, the regulations deem the statements to be “medical
opinions” subject to a multi-factor test that weighs their value. 20 C.F.R. § 404.1527.
Excluded from the definition of “medical opinions” are various decisions reserved to the
Commissioner, such as whether the claimant meets the statutory definition of disability
and how to measure his or her RFC. Id. § 404.1527(d).
The ALJ must use a six-factor balancing test to determine the probative value of
medical opinions from acceptable sources. 20 C.F.R. § 404.1527(c). The test looks at
whether the source examined the claimant, “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
specialization of the treating source.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544
(6th Cir. 2004); see also 20 C.F.R. § 404.1527(c). ALJs must also apply those factors to
“other source” opinions. See Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 540-42 (6th
Cir. 2007); SSR 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 2006).
Certain opinions of a treating physician, in contrast, receive controlling weight if
they are “well-supported by medically acceptable clinical and laboratory diagnostic
techniques” and are “not inconsistent with the other substantial evidence in [the] case
record.” 20 C.F.R. § 404.1527(d)(2); see also Wilson, 378 F.3d at 544. The only opinions
entitled to dispositive effect deal with the nature and severity of the claimant’s
impairments. 20 C.F.R. § 404.1527(d); SSR 96-2p, 1996 WL 374188, at *1-2 (July 2,
1996). Therefore, the ALJ does not owe a treating opinion deference on matters reserved
11

to the Commissioner. 20 C.F.R. § 404.1527(d); SSR 96-2p, 1996 WL 374188, at *1-2
(July 2, 1996). The ALJ “will not give any special significance to the source of an
opinion” regarding whether a person is disabled or unable to work, whether an
impairment meets or equals a Listing, the individual’s RFC, and the application of
vocational factors. 20 C.F.R. § 404.1527(d)(3).
The regulations mandate that the ALJ provide “good reasons” for the weight
assigned to the treating source’s opinion in the written determination. 20 C.F.R. §
404.1527(c)(2); see also Dakroub v. Comm’r of Soc. Sec., 482 F.3d 873, 875 (6th Cir.
2007). Therefore, a decision denying benefits
must contain specific reasons for the weight given to the treating source’s
medical opinion, supported by the evidence in the case record, and must
be sufficiently specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source’s opinion and the
reasons for that weight.

SSR 96-2p, 1996 WL 374188, at *5 (July 2, 1996); see also Rogers, 486 F.3d at 242. For
example, an ALJ may properly reject a treating source opinion if it lacks supporting
objective evidence. Revels v. Sec’y of Health & Human Servs., 882 F. Supp. 637, 640-41
(E.D. Mich. 1994), aff’d, 51 F.3d 273 (Table), 1995 WL 138930, at *1 (6th Cir. 1995).
An ALJ must analyze the credibility of the claimant, considering the claimant’s
statements about pain or other symptoms with the rest of the relevant evidence in the
record and factors outlined in Social Security Ruling 96-7p, 1996 WL 374186 (July 2,
1996). Credibility determinations regarding a claimant’s subjective complaints rest with
the ALJ. See Siterlet v. Sec’y of Health & Human Servs., 823 F.2d 918, 920 (6th Cir.
12

1987). Generally, an ALJ’s credibility assessment can be disturbed only for a
“compelling reason.” Sims v. Comm’r of Soc. Sec., 406 F. App’x 977, 981 (6th Cir.
2011); Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004).
The Social Security regulations establish a two-step process for evaluating
subjective symptoms, including pain. 20 C.F.R. § 404.1529; SSR 96-7p, 1996 WL
374186, at *2 (July 2, 1996). The ALJ evaluates complaints of disabling pain by
confirming that objective medical evidence of the underlying condition exists. The ALJ
then determines whether that condition could reasonably be expected to produce the
alleged pain or whether other objective evidence verifies the severity of the pain. See 20
C.F.R. § 404.1529; SSR 96-7p, 1996 WL 374186, at *2 (July 2, 1996); Stanley v. Sec’y of
Health & Human Servs., 39 F.3d 115, 117 (6th Cir. 1994). The ALJ ascertains the extent
of the work-related limitations by determining the intensity, persistence, and limiting
effects of the claimant’s symptoms. SSR 96-7p, 1996 WL 374186, at *2 (July 2, 1996).
While “objective evidence of the pain itself” is not required, Duncan v. Sec’y of
Health & Human Servs., 801 F.2d 847, 853 (6th Cir. 1986) (quoting Green v. Schweiker,
749 F.2d 1066, 1071 (3d Cir. 1984)) (internal quotation marks omitted), a claimant’s
description of his or her physical or mental impairments alone is “not enough to establish
the existence of a physical or mental impairment,” 20 C.F.R. § 404.1528(a). Nonetheless,
the ALJ may not disregard the claimant’s subjective complaints about the severity and
persistence of the pain simply because they lack substantiating objective evidence. SSR
96-7p, 1996 WL 374186, at *1 (July 2, 1996). Instead, the absence of objective
confirming evidence forces the ALJ to consider the following factors:
13

(i)
(ii)
(iii)
(iv)

[D]aily activities;
The location, duration, frequency, and intensity of . . . pain;
Precipitating and aggravating factors;
The type, dosage, effectiveness, and side effects of any medication .
. . taken to alleviate . . . pain or other symptoms;
(v) Treatment, other than medication, . . . received for relief of . . . pain;
(vi) Any measures . . . used to relieve . . . pain.
20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); see also Felisky v. Bowen, 35 F.3d 1027,
1039-40 (6th Cir. 1994); SSR 96-7p, 1996 WL 374186, at *3 (July 2, 1996).
Furthermore, the claimant’s work history and the consistency of his or her subjective
statements are also relevant. 20 C.F.R. § 404.1527(c); SSR 96-7p, 1996 WL 374186, at
*5 (July 2, 1996).
The claimant must provide evidence establishing her RFC. The statute lays the
groundwork for this, stating, “An individual shall not be considered to be under a
disability unless he [or she] furnishes such medical and other evidence of the existence
thereof as the Secretary may require.” 42 U.S.C. § 423(d)(5)(A); see also Bowen, 482
U.S. at 146 n.5. The RFC “is the most he [or she] can still do despite his [or her]
limitations,” and is measured using “all the relevant evidence in [the] case record.” 20
C.F.R. § 404.1545(a)(2). A hypothetical question to the VE is valid if it includes all
credible limitations developed prior to Step Five. Casey v. Sec. of Health & Human
Servs., 987 F.2d 1230, 1235 (6th Cir. 1993); Donald v. Comm’r of Soc. Sec., No. 0814784-BC, 2009 WL 4730453, at *7 (E.D. Mich. Dec. 9, 2009).
G.

Analysis

Plaintiff furnishes two discrete arguments in her Motion for Summary Judgment:
(1) the ALJ should have included “appropriate and supported limitations” in Plaintiff’s
14

hearing abilities in her RFC, (Doc. 16 at ID 762); and (2) the ALJ should have granted
more weight to the record opinion from Dr. King, Plaintiff’s treating physician, than he
did to a non-examining physician “who had not had the ability to review more recent
material evidence,” (Id. at ID 765). I address each argument in turn. 2
1.

Hearing Limitations

Plaintiff first contends the ALJ erred in “fail[ing] to include any limitation in the
RFC which would accommodate the work-related restrictions” her bilateral hearing loss
posed. (Doc. 16 at ID 762). She suggests evidence from Dr. Williams, Dr. Hartmann, Mr.
Hardison, and Dr. Valerio supports the proposition that Plaintiff “would lose most if not
all ability to understand speech or communicate in situations even where the noise level
is fairly low,” and perhaps as low as 50 decibels (“dB”). (Id. at ID 763). This error was
harmful, Plaintiff suggests, because although “the ALJ did include a limitation for
avoidance of very noisy environments in the hypothetical to the VE which resulted in the
identified jobs at Step 5, this limitation does not comport with the evidence that shows

2

The hearing transcript at issue, alongside various portions of the record, suggest Plaintiff
received an adverse disability finding in the past. (Tr. 44) (“The file indicates you’ve had eight
previous applications for disability going all the way back to the ‘90s, including a previous
unfavorable decision with a judge back in 1995.”). No such decision appears in the record, and
neither party nor the ALJ’s written decision makes mention of any prior disability determination.
Such prior determinations—rendered after a claimant had the right to be heard before an
impartial decision-maker—typically carry res judicata force into the future, and mandate the
application of a different standard to the disability determination: whether new and material
evidence shows a deterioration in condition sufficient to compel a finding of disability. See AR
98-4(6), 1998 WL 283902, at *3 (S.S.A. June 1, 1998) (acquiescing to Drummond v.
Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997)). Even assuming the ALJ erred in
failing to apply the res judicata standard to the case at hand, however, would not require remand.
Plaintiff’s burden under the standard applied by the ALJ is more lax—an adverse finding
thereunder would, a fortiori, remain adverse under the more exacting res judicata standard. For
this reason, I decline to address this issue any further.

15

[she] would require a much quieter work environment.” (Id. at ID 764). The jobs the VE
identified in response to the ALJ’s “very noisy” hypothetical, she notes, involve work
environments with moderate noise levels, and “[i]n comparing the illustrative examples
of a moderate noise intensity level with those specified as being around 50 dB in
loudness, it becomes highly questionable whether [Plaintiff] would in fact be able to
work in” such an environment. (Id.).
Defendant concedes the ALJ’s omission of hearing limitations in the RFC was
error, but maintains it was harmless. (Doc. 18 at ID 819-23). As Defendant correctly
notes, the transcript amply demonstrates the ALJ considered Plaintiff’s hearing
impairments. E.g., (Tr. 42-43) (“Now, I know that [Plaintiff] has some diminished
hearing, and she’s having a problem hearing me. But maybe y’all need to turn up the
volume on that end.”); see also (Tr. 48-49, 57). Moreover, the ALJ included a hearing
limitation—namely, “[a]void all exposure to very noisy environments such as heavy
traffic, manufacturing plant noises”—in the hypothetical question he ultimately adopted
in his written decision. (Tr. 56). When presented with this hypothetical, the VE listed the
same jobs the ALJ found Plaintiff capable of performing in his written decision. Compare
(Tr. 56-57), with (Tr. 28). The ALJ even asked specifically whether those jobs “would be
negatively impacted by the noise limitation in this RFC,” and the VE indicated they
would not. (Tr. 57). The ALJ may have omitted this limitation from his written decision,
but the VE “concluded that there were jobs in the area, taking into considerations the
limitation[], that could be performed,” rendering this error harmless. Heston v. Comm’r of
Soc. Sec., 245 F.3d 528, 536 (6th Cir. 2001); accord, e.g., Rogers-Lee v. Comm’r of Soc.
16

Sec., No.2:14-CV-11415, 2015 WL 5162269, at *9 (E.D. Mich. July 21, 2015) (“The
Sixth Circuit has held that, even where an ALJ did not discuss the opinion of a treating
physician, such an error was harmless where the hypothetical to the VE took the relevant
limitations into consideration.”), R.& R. adopted, No. 14-CV-11415, 2015 WL 5159750
(E.D. Mich. Sept. 2, 2015); Macielak v. Comm’r of Soc. Sec., No. 13-CV-10148, 2013
WL 6839292, at *10 (E.D. Mich. Dec. 27, 2013) (same).
To this, Plaintiff suggests that in any case, such a limitation was ineffective in
light of Dr. Williams’s finding that “being placed in an environment where the noise
level was around 50 dB reduced [Plaintiff’s] understanding ability to zero percent.” (Doc.
16 at ID 763) (citing (Tr. 611)). Put another way, Plaintiff avers the avoidance of “very
loud” environments would not be enough. I must note, however, that the record does not
corroborate Plaintiff’s interpretation of this raw medical evidence. Compare (Id.), with
(Tr. 611) (“Word Recognition: Excellent bilaterally at most comfortable listening levels.
Binaural word recognition testing in the sound field (50dB HL) confirmed complaints of
reduced understanding ability.”). Instead, the ALJ relied on those medical opinions which
reviewed Dr. Williams’s report and interpreted it as indicating difficulty hearing in “very
noisy” environments, or those with “concentrated exposure” to noise. (Tr. 82, 85, 98). As
I explain in more detail below, the ALJ considered the entire record and was permitted to
weigh this evidence as he did; Plaintiff fails to convincingly show she needs a more
severe limitation.

17

For these reasons, the ALJ’s error in failing to include a bilateral hearing
limitation in his RFC was harmless, and substantial evidence bolsters his opinion on this
front.
2.

Weight Accorded Dr. Kahlil

Plaintiff next avers the ALJ erred in assigning “only little weight” to Dr. King’s
opinion while relying instead on “the opinion of a non-examining physician.” (Doc. 16 at
ID 765). She summarizes the reasons given the ALJ for his weight assignment as to Dr.
King—namely: (i) inconsistency between his findings and Plaintiff’s work history, (ii)
lack of objective evidence, (iii) conservative treatment, and (iv) Plaintiff’s delay in
seeking treatment for her back pain—and challenges each one. (Id. at 766). Essentially,
Plaintiff contends the ALJ cherry-picked the evidence to manufacture good reasons for
discounting Dr. King’s opinion. Further, “[t]he propriety of the ALJ’s treatment of the
evidence is even more suspect given [her] request to amend the alleged onset date from
June 30, 2005 to January 1, 2013,” given “the evidence he cited as the sole basis for
asserting Dr. King’s opinion was unsupported would essentially be irrelevant, since it
was from 4 or 5 years prior to the amended onset date.” (Id. at ID 768).
Evaluating medical source statements requires considering factors such as the
nature of the source’s examining relationship with the client, 20 C.F.R. § 416.927(c)(1),
the source’s treatment relationship with the client, id. § (c)(2), the supportability of the
source’s opinion, id. § (c)(3), the consistency of the opinion with the record as a whole,
id. § (c)(4), whether the source is a specialist opining on areas within her specialty, id. §
(c)(5), as well as “any factors” the claimant or others “bring to [the Commissioner’s]
18

attention, or of which [the Commissioner] is aware, which tend to support or contradict
the opinion,” id § (c)(6). The ALJ “will always give good reasons. . . for the weight”
given a “treating source’s opinion.” Id § (c)(2) (emphasis added). The ALJ, however,
need not give ‘good reasons’ with respect to ‘other sources’—rather, he “generally
should explain the weight given to opinions from . . . ‘other sources,’ or otherwise ensure
that the discussion of the evidence in the determination or decision allows a claimant or
subsequent reviewer to follow the adjudicator’s reasoning, when such opinions may have
an effect on the outcome of the case.” SSR 06-03p, 2006 WL 2329939, at *6 (S.S.A.
Aug. 9, 2006). There remains an important “distinction between what an adjudicator must
consider and what the adjudicator must explain.” Id.
A review of the ALJ’s rationale shows she supplied good reasons for assigning Dr.
King’s opinion little weight. She determined that Dr. King’s findings would have
precluded “even limited part-time work,” which Plaintiff unquestionably held from 2005
to 2013. (Tr. 26-27). Though Plaintiff takes umbrage with such finding—(Doc. 16 at ID
766) (“[T]he ALJ has not provided any explanation as to why he believed Dr. King’s
opinion was inconsistent with [Plaintiff’s] part time work[.]”)—the ALJ plainly relied on
the VE’s testimony that Dr. King’s RFC would have precluded all work, and that two of
Plaintiff’s past part-time jobs required lifting in excess of the limits in Dr. King’s RFC
assessment. See (Tr. 59) (“no jobs” in the national economy for an individual with the
limitations included in Dr. King’s September 2014 RFC). Compare (Tr. 55) (describing
the jobs “traditional cook” and “dietary aide” as requiring “medium” exertion), and 20
C.F.R. § 404.1567(c) (“Medium work involves lifting no more than 50 pounds at a time
19

with frequent lifting or carrying of objects weighing up to 25 pounds.”), with (Tr. 700)
(limiting Plaintiff to occasionally lifting no more than 20 pounds). The language used to
convey the ALJ’s finding—namely, “[t]hese limitations would leave the claimant unable
to sustain even limited part-time work,” (Tr. 26)—while imprecise, seems impliedly
aimed at noting inconsistency between Plaintiff’s actual past work and Dr. King’s RFC.
This remains a valid reason to discount Dr. King’s findings.
The ALJ also reasoned that Dr. King grounded his drastic findings on mild
objective evidence from April 2008, and the limited, decidedly-conservative treatment in
the year that followed. (Tr. 27). Plaintiff falsely paints this rationale as the ALJ’s reliance
on “a few discrete, isolated pieces of evidence from 2008 or 2009” to undermine Dr.
King’s opinion, (Doc. 16 at ID 767), when in fact the inverse is true. Indeed, contrary to
Plaintiff’s lamentations—e.g., (Doc. 16 at ID 767) (“The ALJ neglected to mention that
other treatment notes from Dr. King, particularly those from 2013 and 2014, showed
consistent objective signs including decreased neck range of motion and left/bilateral
shoulder tenderness.”)—the ALJ expressly discussed a good deal of the most recent
evidence of record, illustrating its inconsistency with Dr. King’s findings, (Tr. 26)
(expressly discussing records from 2013 and 2014, and citing Exhibits 6F, 12F, 14F, 15F,
16F, 19F, and 20F). The record validates his conclusion as to Dr. King’s RFC. See, e.g.,
(Tr. 84, 100, 117, 414, 437, 612, 655, 667) (mild objective findings); (Tr. 69, 99, 349,
366, 395, 398, 401, 403, 415, 418, 421, 424, 431, 434, 442, 463, 466, 469, 471, 476, 48384, 490, 501, 524, 527, 541, 567-68, 597, 680, 683, 688) (full range of motion in all or
most major muscle groups); (Tr. 388, 394, 400, 402, 417, 420, 423, 427, 430, 433, 442,
20

447, 456, 463, 466, 469, 471, 483-84, 490, 501, 527, 541, 567-68, 662, 669) (little or no
joint pain); (Tr. 67, 78, 99, 110, 114, 606) (normal or relatively uninhibited activities of
daily living). Plaintiff’s tangential argument—that the ALJ improperly denied Plaintiff’s
motion to amend her onset date, then relied entirely upon evidence from before that date,
(Doc. 16 at ID 768)—is similarly debunked by the ALJ’s holistic written analysis. Cf.
Nichols v. Comm’r of Soc. Sec., 575 F. App’x 664, 665 (6th Cir. 2014) (“[A]ny error in
failing to explicitly consider the amended onset date was harmless because the ALJ
recognized that Nichols changed age categories in 2009 . . . she considered whether the
change affected the disability determination, and she determined that Nichols was not
disabled at any time between November 15, 2008, and the date of the ALJ’s decision.”).
In sum, the ALJ supplied good reasons for discounting Dr. King’s opinion.
Plaintiff also argues the ALJ should not have accorded State Agency physician Dr.
Rotker significant weight, as she performed her examination on June 27, 2013, and
therefore “could not have the ability to review pieces of material evidence when making
her assessment, including both opinions from Dr. King and multiple treatment notes from
Dr. King and other sources that evidenced an escalation of [Plaintiff’s] musculoskeletal.”
(Doc. 16 at ID 768). As discussed above, however, the ALJ considered the evidence postdating Dr. Rotker’s evaluation; so long as the ALJ grants “‘some indication’” she
considered facts not before a non-examining source who “did not review a complete case
record,” reliance on such source will not result in error. Miller v. Comm’r of Soc. Sec.,
811 F.3d 825, 834 (6th Cir. 2016) (quoting Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,
406 (6th Cir. 2009)).
21

Because the ALJ furnished reasons “sufficiently specific to make clear to any
subsequent reviewers” the weight he “gave to the treating source’s medical opinion and
the reasons for that weight,” the ALJ’s weight-assignment as to Dr. King is supported by
substantial evidence. SSR 96-2p, 1996 WL 374188, at *5 (July 2, 1996). The Court
should find Plaintiff’s corresponding misgivings unpersuasive.
H.

Conclusion

For the reasons stated above, the Court RECOMMENDS that Plaintiff’s Motion
for Summary Judgment, (Doc. 15), be DENIED.
III.

REVIEW
Pursuant to Rule 72(b)(2) of the Federal Rules of Civil Procedure, “[w]ithin 14

days after being served with a copy of the recommended disposition, a party may serve
and file specific written objections to the proposed findings and recommendations. A
party may respond to another party’s objections within 14 days after being served with a
copy.” Fed. R. Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(1). Failure to file specific
objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S.
140 (1985); Howard v. Sec’y of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991);
United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The parties are advised that
making some objections, but failing to raise others, will not preserve all the objections a
party may have to this Report and Recommendation. Willis v. Sec’y of Health & Human
Servs., 931 F.2d 390, 401 (6th Cir. 1991); Dakroub v. Detroit Fed’n of Teachers Local
231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy
of any objections is to be served upon this magistrate judge.
22

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,” etc.
Any objection must recite precisely the provision of this Report and Recommendation to
which it pertains. Not later than 14 days after service of an objection, the opposing party
may file a concise response proportionate to the objections in length and complexity. Fed.
R. Civ. P. 72(b)(2); E.D. Mich. LR 72.1(d). The response must specifically address each
issue raised in the objections, in the same order, and labeled as “Response to Objection
No. 1,” “Response to Objection No. 2,” etc. If the Court determines that any objections
are without merit, it may rule without awaiting the response.
s/ Patricia T. Morris
PATRICIA T. MORRIS
UNITED STATES MAGISTRATE JUDGE
SITTING BY SPECIAL DESIGNATION

Date: February 20, 2018

23