Brown v. Social Security Administration et al

Filing 19

REPORT AND RECOMMENDATION: For the reasons discussed above, the undersigned recommends that Plaintiff's Motion for Judgment Upon 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.)(tmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
SHRETHA T. BROWN,

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

Civil Action No. 3:12-cv-00346
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 Supplemental Security
Insurance (“SSI”), as provided under Title XVI of the Social Security Act (“the Act”), as
amended. The case is currently pending on Plaintiff’s Motion for Judgment Upon the
Administrative Record. Docket No. 12. Defendant has filed a Response, arguing that the decision
of the Commissioner was supported by substantial evidence and should be affirmed. Docket No.
18.

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).

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For the reasons stated below, the undersigned recommends that Plaintiff’s Motion for
Judgment Upon the Administrative Record be DENIED, and that the decision of the
Commissioner be AFFIRMED.
I. INTRODUCTION
Plaintiff protectively filed her application for Supplemental Security Income (“SSI”) on
November 13, 2007,2 alleging that she had been disabled since November 1, 2007, due to “right
foot problems.” See, e.g., Docket No. 10, Attachment (“TR”), pp. 91, 145, 170. Plaintiff’s
application was denied both initially (TR 91) and upon reconsideration (TR 93). Plaintiff
subsequently requested (TR 119) and received (TR 120) a hearing. Plaintiff’s hearing was
conducted on April 5, 2010, by Administrative Law Judge (“ALJ”) Daniel Whitney. TR 28.
Plaintiff and Vocational Expert, Rebecca Williams, appeared and testified. Id.
On May 19, 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
105. Specifically, the ALJ made the following findings of fact:
1.

2.

The claimant has the following severe impairment: foot
pain (20 CFR 416.920(c)).

3.

2

The claimant has not engaged in substantial gainful activity
since November 13, 2007, the application date (20 CFR
416.971 et seq.).

The claimant does not have an impairment or combination
of impairments that meets or medically equals one of the
listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).

Plaintiff’s application for SSI was filed on December 14, 2007. TR 145.
2

4.

After careful consideration of the entire record, I find that
the claimant has the residual functional capacity to perform
medium work as defined in 20 CFR 416.967(c) that is
limited to lifting and/or carrying fifty pounds occasionally
and twenty-five pounds frequently; standing, walking,
and/or sitting six hours in an eight-hour workday;
frequently balancing, stooping, kneeling, crouching,
crawling, and climbing ramps/stairs; and occasionally
climbing ladders/ropes/scaffolds.

5.

The claimant has no past relevant work (20 CFR 416.965).

6.

The claimant was born on October 5, 1974 and was 33
years old, which is defined as a younger individual age 1849, on the date the application was filed (20 CFR 416.963).

7.

The claimant has limited education and is able to
communicate in English (20 CFR 416.964).

8.

Transferability of job skills is not an issue because the
claimant does not have past relevant work (20 CFR
416.968).

9.

Considering the claimant’s age, education, work
experience, and residual functional capacity, there are jobs
that exist in significant numbers in the national economy
that the claimant can perform (20 CFR 416.969 and
416.969(a)).

10.

The claimant has not been under a disability, as defined in
the Social Security Act, since November 13, 2007, the date
the application was filed (20 CFR 416.920(g)).

TR 100-05.
On August 2, 2010, Plaintiff timely filed a request for review of the hearing decision. TR
26. On March 8, 2012, the Appeals Council issued a letter declining to review the case (TR 1),
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

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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

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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).

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At the administrative level of review, the claimant’s case is considered under a five-step
sequential evaluation process as follows:
(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” impairments3 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

3

The Listing of Impairments is found at 20 C.F.R., Pt. 404, Subpt. P, App. 1.
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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
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 failed to: 1) give appropriate weight to the opinion of her
treating podiatrist, Dr. Keith W. Osorio, and 2) adequately evaluate her credibility. Docket No.
13. 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.
42 U.S.C. §§ 405(g), 1383(c)(3).

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“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 the Opinion of Plaintiff’s Treating Podiatrist
Plaintiff maintains that the ALJ “dismissed” the opinion of Plaintiff’s treating podiatrist,
Dr. Keith W. Osorio. Docket No. 13 at 6. In support of her argument, Plaintiff cites Dr. Osorio’s
opinion that Plaintiff had a severe foot deformation that would never be resolved through further
surgical intervention and that Plaintiff would be unable to hold a job that requires ambulation or
standing for extended periods of time or at all. Id. at 3; citing TR 231, 235. Plaintiff argues that
the ALJ inappropriately accorded greater weight to the opinion of the consulting examiner, Dr.
Michael Ryan, than to the opinion of Dr. Osorio, without explaining his reasons for discounting
Dr. Osorio’s opinion and without justification for according greater weight to Dr. Ryan’s
opinion. Docket No. 13 at 7; TR 236-43. Plaintiff contends that “since no reasons of any kind
were given for discounting Dr. Osorio’s opinions,” the ALJ’s decision cannot be supported by
substantial evidence and, accordingly, must be reversed or remanded. Docket No. 13 at 8.
Defendant responds that the ALJ properly considered and weighed the medical evidence
of record. Docket No. 18 at 8-13. Defendant argues, as an initial matter, that Dr. Osorio did not
give one opinion, but rather, three opinions, despite having treated Plaintiff before the relevant

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period. Id. at 9. Defendant contends that Dr. Osorio’s opinions were incongruent with each
other, and based on no evidence during the relevant period. Id. Defendant maintains that,
accordingly, there were no records during the relevant period from Dr. Osorio for the ALJ to
discuss. Id. Defendant notes that Plaintiff bears the burden of establishing disability through
step four of the sequential evaluation; that Plaintiff failed to meet that burden; and that “[l]acking
evidence from plaintiff, the ALJ decided her claim based on the information available in her
case.” Id. at 10. Defendant argues that the medical opinions of record support the ALJ’s
determination that Plaintiff retained a RFC to perform medium work. Id. Defendant notes that
Dr. Osorio’s opinions were not only incongruent with each other, but also with the medical
assessment from Dr. Christian Vissers, the consultative examination report from Dr. Mark
Bennett, and the Physical RFC Assessment from Dr. Michael Ryan. Id.; citing TR 227-31, 23234, 235, 236-43, 244-50. Defendant asserts that, given the disparity between sources, the ALJ
properly discounted the opinions of Dr. Osorio, and appropriately accorded greater weight to the
opinion of Dr. Ryan. Docket No. 18 at 12-13.
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

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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 well-supported 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.
(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.4 See, e.g., 20 C.F.R. § 404.1527(d); Allen v. Commissioner, 561 F.3d

4

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).
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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
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. Osorio is Plaintiff’s treating podiatrist, having treated her in 2007 and having
performed her bunionectomy in September of that year. TR 102-03, 216-26. As a treating
physician, Dr. Osorio’s opinions would normally be accorded greater weight than other opinions,
as long as Dr. Osorio’s opinions were supported by medically acceptable clinical and laboratory
diagnostic techniques, and consistent with the evidence of record. 20 C.F.R.§ 416.927(d). The
ALJ in the case at bar, however, found Dr. Osorio’s opinions unpersuasive because Dr. Osorio

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provided divergent opinions about Plaintiff’s condition during a time in which Plaintiff was no
longer in his care. TR 103, 227-30, 231, 235.
Recounting Dr. Osorio’s treatment of Plaintiff and subsequent opinions, the ALJ stated:
In September 2007, the claimant was diagnosed with hallucis
abductor valgus with metatarsal primus valgus right foot;
elongated third metatarsal right foot; and hammertoe fifth digit
right foot. She underwent a radical bunionectomy with first
metatarsal osteotomy with K-wire fixation; third metatarsal
osteotomy; and hammertoe repair fifth digit. Exhibit 2F.
...
Other opinion evidence consists of a Medical Source Statement
completed in February 2008 by the claimant’s podiatrist Keith W.
Osorio, D.P.M., who reported that the claimant could occasionally
balance, kneel, crawl, and stoop but should avoid climbing and
crouching. He did not complete the remainder of the form stating
that his practice is limited to podiatry. However, an unsigned
letter from Dr. Osorio states that the claimant is afflicted with
several congenital foot deformities such as severe rigid pes
planovalgus and metatarsal adductus which cause significant
discomfort with prolonged standing or ambulation. He further
stated, “The pain in the foot, knee, hip or lower back related and
can be chronic in nature [sic]. Ms. Brown has severe pain in both
feet during any weight-bearing activity, she had surgery several
months ago to relieve some of her symptoms [sic]. However her
foot pain is never going to be resolved through surgical
intervention.” He opined that the claimant will be unable to work
in any job requiring ambulation or standing for extended periods.
Exhibit 3F. In September 2008, Dr. Osorio submitted a second
letter which stated that the claimant’s surgery was successful in
correcting the major deformities; however, she continues to suffer
from multiple foot deformities which make it impossible for her to
hold any employment which requires standing or walking. He
further stated that these problems are permanent and would not be
resolved by further surgical interventions. Exhibit 5F.
TR 102-03, citing TR 216-26, 227-30, 231, 235 (bracketed material in original).

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When determining the weight to be accorded to the opinion evidence, the ALJ also
considered the opinions of Dr. Vissers, Dr. Bennett, and Dr. Ryan, all of which were inconsistent
with the opinions expressed by Dr. Osorio, recounted above. TR 102-04, referencing TR 227-30,
231, 232-34, 235, 236-43, 244-50. The ALJ discussed each medical opinion in turn. TR 102-04.
In April 2010, subsequent to the hearing, Dr. Vissers, an orthopaedic surgeon, examined
Plaintiff in order to complete a Medical Source Statement on her behalf. TR 244-50. Recounting
Dr. Vissers’ assessment, the ALJ stated:
Subsequent to the hearing, the claimant was evaluated by
orthopaedic surgeon Christian Vissers, M.D., for pain in her right
foot with ambulation, and it was noted that she was applying for
disability. Upon examination, her first metatarsopalangeal joint
demonstrated 15 [degrees] of dorsiflexion and twenty [degrees] of
plantar flexion; significant pes planus; significant weakness with
extensor hallucis and digitorum longus; tibialis anterior intact;
decreased sensation on the dorsum of the foot with no other
sensory deficits noted. Diagnostic tests demonstrated previous
bunion surgery with some retained hardware in the distal aspect of
the metatarsal. The medical assessment was status post right
hallux valgux corrective surgery; decreased sensation dorsum right
foot; and pes planus deformity right foot.
TR 102. The ALJ continued:
It was noted that the claimant was not interested in any additional
treatment at this time and was to return to the clinic on an as
needed basis. She requested completion of a Medical Source
Statement. Dr. Vissers reported that the claimant can lift up to one
hundred pounds occasionally and frequently carry up to fifty
pounds; sit and/or stand for eight hours; and does not need a cane
to ambulate. She can continuously operate bilateral foot controls;
frequently stoop, kneel, crawl, and climb stairs/ramps;
occasionally balance and crouch; never climb
ladders/ropes/scaffolds; can perform activities like shopping,
traveling without a companion, walking a block at a reasonable
pace on rough or uneven surfaces, use public transportation,

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prepare simple meals, care for personal hygiene, and sort/handle
paper or files. Exhibit 7F.
TR 102-03, citing TR 244-50.
Recounting Dr. Bennett’s consultative opinion, dated May 16, 2008, the ALJ stated:
A consultative examination was performed in May 2008 by Mark
Bennett, M.D., wherein the claimant reported that she had bunion
surgery on her right foot, but experienced sharp pain in the foot
that “can jump to her other foot.” She said that she has no pain
while standing at first but that it comes on with time. She reported
taking non-steroidal anti-inflammatory drugs and a Medrol Dose
Pack. During the examination, it was noted that she had no limp
but walked with a shifting cock-toe walk. She was observed to
have no difficulty getting out of a chair or onto an examination
table, and she used no assistive devices to aid in walking. . . She
had normal ranges of motion in her knees and ankles, and the right
foot had good sensation with well-healed scars. Due to the brevity
and scope of the evaluation, Dr. Bennett was unable to make a
determination about the claimant’s ability to perform work-related
tasks. Exhibit 4F.
TR 103, citing TR 232-34.
The ALJ also considered the September 10, 2008 opinion of Dr. Ryan, in which Dr. Ryan
opined that Plaintiff retained the residual functional capacity to perform medium level work. TR
102.5 Discussing Dr. Ryan’s assessment, the ALJ noted:
A Physical Residual Functional Capacity Assessment was
performed in September 2008 by State agency medical consultant
Michael N. Ryan, M.D., who reviewed the evidence and reported
that the claimant could lift and/or carry fifty pounds occasionally
and twenty-five pounds frequently; stand, walk and/or sit six hours
in an eight-hour workday; frequently balance, stoop, kneel, crouch,
crawl, and climb ramps/stairs; and occasionally climb
ladders/ropes/scaffolds. He noted that the claimant reported pain

5

An ALJ may consider the opinion of a non-examining physician designated by the Secretary in
determining whether a claimant has medically determinable impairments. Reynolds v. Secretary,
707 F.2d 927, 930 (6th Cir. 1983).
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when putting on shoes and walking a lot; however she has a
walking boot but reported that she does not use it much. Exhibit
6F.
TR 103, citing TR 236-43.
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 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).
After evaluating the opinion evidence discussed above, the ALJ explained:
The opinion evidence has been considered as required by 20 CFR
416.927 and SSRs 96-2p, 96-5p, 96-6p and 06-3p, and State
Agency medical consultant Dr. Ryan’s opinion is most consistent
with the evidence of record. All other medical opinions are
credited only to the extent they are reflected in the residual
functional capacity. The evidence of record documents that the
claimant was not evaluated for foot pain or any other medical
condition between October 2007 and March 2010. Furthermore,
she admitted to not taking any medication for the past two years
although she has health insurance. Subsequent to the hearing, it
noted [sic] that the claimant was not interested in any further
medical treatment for her feet other than obtaining a disability
opinion.
TR 104.
The ALJ considered the conflicting opinion evidence, discussed above, and the other
objective and testimonial evidence of record, discussed below, and ultimately determined that

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Dr. Ryan’s opinion was most consistent with the evidence of record. This is within the ALJ’s
province. As has been noted, when there are conflicting opinions in the record, the final decision
regarding the weight to be accorded to the opinions lies with the ALJ. Because there were
conflicting opinions in the case at bar, the Regulations do not mandate that the ALJ accord any
of Dr. Osorio’s opinions controlling weight. The ALJ properly considered the conflicting
opinion evidence and, as can be seen in the quoted passage above, appropriately explained the
reasons for his determination; the ALJ’s decision not to accord great weight to the opinion of Dr.
Osorio was proper; Plaintiff’s argument fails.
2. Subjective Complaints of Pain
Plaintiff contends that the ALJ did not appropriately address her subjective complaints of
“significant pain and very limited activities” when finding her subjective claims only partially
credible. Docket No. 13 at 8-11. Specifically, Plaintiff argues that, rather than state his reasons
for crediting or rejecting her subjective complaints, the ALJ “tosse[d] out boilerplate” and failed
to adequately discuss why Plaintiff’s statements made at the hearing about her limited mobility
were not fully credible. Id. at 10. Plaintiff additionally notes that conflicting statements made in
forms to which the ALJ refers as a basis for discounting her credibility were possibly completed
by Plaintiff’s attorney, not Plaintiff herself, and thus should not be used against her. Id. at 9.
Plaintiff contends that it was erroneous for the ALJ not to ask Plaintiff about the discrepancies he
believed existed and not to give Plaintiff the opportunity to address this concern. Id.
Defendant responds that the ALJ properly found Plaintiff’s subjective complaints only
partially credible. Docket No. 18 at 13. Defendant notes that “the ALJ found most record
evidence supported a conclusion that plaintiff’s claims of intense, persistent, and limiting foot

16

pain were only credible to the extent that the symptoms would not prevent doing a range of
medium work.” Id.; citing TR 101-02, 104. Defendant argues that the ALJ appropriately
considered Plaintiff’s inconsistent statements and contradictory daily activities. Id. Defendant
also argues that the fact that Plaintiff’s attorney may have completed one of the reports does not
undermine the ALJ’s decision because: (1) Plaintiff hired legal counsel to represent her
regarding her claim, (2) her counsel would be an officer of the court with the duties of candor
and zealous client representation, and (3) the ALJ notified Plaintiff and her counsel at the
hearing that he would decide Plaintiff’s claim based upon a review of the record and her hearing
testimony, and specifically asked Plaintiff’s counsel if there was any objection to the record but
Plaintiff’s counsel had none. Docket No. 18 at 13-14. Finally, Defendant notes that Plaintiff
bears the burden of proving her disability at steps one through four of the sequential evaluation.
Id.
The Sixth Circuit has set forth the following criteria for assessing a plaintiff’s allegations
of pain:
[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,

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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.”).
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; the type, dosage and effect of medication; 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).
In the case at bar, the ALJ found that Plaintiff’s subjective complaints of pain expressed
at the hearing were not fully credible because they were inconsistent with other statements made
by Plaintiff and with medical evidence in the record. TR 102. In making this determination, the
ALJ noted that he had:
considered the claimant’s allegations at the hearing regarding
disabling symptoms, including pain and substantial limitations in
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her ability to carry out activities of daily living. I have not
discounted such allegations solely on the basis of the absence or
minimal nature of the objective medical record. Rather, I have
afforded full consideration to all of the evidence presented relating
to subjective complaints, including, as appropriate and applicable
herein, the claimant’s prior work record and observations by third
parties and treating and examining physicians relating, as
appropriate, to such matters as: the claimant’s daily activities; the
duration, frequency, and intensity of any pain and other symptoms;
precipitating and aggravating factors; dosage, effectiveness, and
side effects, if any, from medications; functional restrictions;
treatment, other than medication, that is received for pain or other
symptoms; and any measures other than treatment that are used to
relieve pain or other symptoms (20 CFR 404.1529 and SSR 967p).
TR 101.
When explaining his rationale for discounting Plaintiff’s credibility, the ALJ articulated
that Plaintiff’s testimony at the hearing was incongruous with her statements in the Pain
Questionnaire, dated August 5, 2008, and in the Disability Report, dated December 4, 2008, as
well as with her medical history and objective evidence relating thereto, including the opinion
evidence discussed above. TR 102, referencing TR 36-49, 194-97, 201-09. Specifically, the ALJ
stated:
At the hearing, the claimant also reported shortness of breath but
admitted to smoking four to five packs of cigarettes per day.
Additionally, she stated that she had received no medical treatment
for this condition. . . .
...
At the hearing, the claimant alleged disability due to bilateral foot
pain resulting from previous surgery and arthritis. She reported
that she is unable to stand for more than five minutes and then she
must elevate her feet for thirty minutes to one hour. However, her

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medical history is not necessarily consistent with her allegations of
disability. . . .
...
At the hearing, the claimant reported that she lives with her five
year old son and his father. She reported that she does not grocery
shop or do anything all day long expect sleep and watch television.
However, she then reported that she gets her son up and ready for
school. In the Pain Questionnaire, the claimant reported that she
“walks around every day of the week to find jobs and fill out
applications for jobs [sic].” She also reported that she walks to and
from the bus stop to attend her appointments, apply for
employment, grocery shop, run errands, and take care of other
personal needs. In a Disability Report, she stated that she walks
her son to school; however, at the hearing, she stated that her
brother takes him to school every day. She reported that she has a
walking boot, but “I don’t use it that much just every so often.”
She also stated that she does not take medication because she ran
out of her prescription two years ago. Exhibit 7E, 9E.
TR 100-04, referencing TR 36-49, 194-97, 201-09 ([sic] in original).
As can be seen in the quoted passages here and above, the ALJ’s decision specifically
addresses not only Plaintiff’s testimony and her subjective complaints, but also the medical,
opinion, and administrative evidence of record, indicating that these items were considered. TR
102-04. Although Plaintiff contends that her hearing testimony should be deemed more credible
than other evidence, including the documents that she contends were completed by her attorney,
Plaintiff cites no authority to support her contention. Id. An ALJ is charged with considering
the record as a whole, reaching a reasoned decision that is supported by substantial evidence, and
articulating the rationale for that decision; the ALJ in the case at bar did so. It is clear from the
ALJ’s articulated rationale that the ALJ chose to rely on evidence that disputed Plaintiff’s
subjective complaints. Id. This is within the ALJ’s province.

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The ALJ, when evaluating the entirety of the evidence, is entitled to weigh the objective
evidence against Plaintiff’s subjective claims and reach a credibility determination. See, e.g.,
Walters, 127 F.3d at 531; 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 reasons must be
supported by the record (see King, 742 F.2d at 975).
After considering the objective, testimonial, and administrative evidence of record, and
observing Plaintiff at her hearing, the ALJ in the case at bar ultimately determined:
After careful consideration of the evidence, I find that the
claimant’s medically determinable impairments could reasonably
be expected to cause the alleged symptoms; however, the
claimant’s statements concerning the intensity, persistence, and
limiting effects of these symptoms are not credible to the extent
they are inconsistent with the above residual functional capacity
assessment.
...
The claimant’s subjective complaints have been accepted, as far as
they were supported by the objective evidence and the record as a

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whole. Her impairment is limiting; however, not disabling. The
record simply does not support the claimant’s allegations of
disability.
TR 104.
As explained by the ALJ, although Plaintiff claimed very limited functioning at the
hearing, the record demonstrates, inter alia, that she has also reported moderate levels of
mobility and activity, that she has not taken medication for her pain in the past two years, that
she is not interested in receiving further medical treatment, and that she rarely wears her walking
boot. TR 36-49, 102, 194-97, 201-09.
The ALJ observed Plaintiff during her hearing, assessed the medical records, reached a
reasoned decision, and articulated the rationale for that decision; the ALJ’s findings are
supported by substantial evidence, and the decision not to accord full credibility to Plaintiff’s
allegations made at the hearing was proper. Therefore, this claim fails.
IV. RECOMMENDATION
For the reasons discussed above, the undersigned recommends that Plaintiff’s Motion for
Judgment Upon the Administrative Record be DENIED, and that the decision of the
Commissioner be AFFIRMED.
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

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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

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