Hampton v. Social Security Administration

Filing 15

REPORT AND RECOMMENDATION: 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 7/15/2013. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ROBIN L. HAMPTON,

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

Civil Action No. 3:12-cv-00411
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. 14.
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

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

Commissioner be AFFIRMED.
I. INTRODUCTION
Plaintiff filed her application for Supplemental Security Income (“SSI”) on December 7,
2007,2 alleging that she had been disabled since November 1, 1995, due to “Bi Polar II [sic]”
disorder, fibromyalgia, chronic pain syndrome, chronic fatigue syndrome, chronic carpel tunnel
syndrome, chronic lower back strain, chronic vertigo, and clinical depression. See, e.g., Docket
No. 9, Attachment (“TR”), pp. 173, 202. Plaintiff’s application was denied both initially (TR
86) and upon reconsideration (TR 88). Plaintiff subsequently requested (TR 98) and received
(TR 114) a hearing. Plaintiff’s hearing was conducted on May 21, 2010, by Administrative Law
Judge (“ALJ”) Brian Dougherty. TR 32. Plaintiff and Vocational Expert, Gail Ditmore,
appeared and testified. Id.
On August 24, 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
26. Specifically, the ALJ made the following findings of fact:
1.

The claimant has not engaged in substantial gainful activity
since November 26, 2007, the application date (20 CFR
416.971 et seq.).

2.

The claimant has the following severe impairments:
obesity, mild lumbar spondylosis at L5/S1, fibromyalgia
and chronic obstructive pulmonary disease (20 CFR
416.920(c)) [sic]

3.

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,

2

Plaintiff protectively filed her application on November 26, 2007. See, e.g., TR 14, 25,
26, 86, 88.
2

Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
4.

After careful consideration of the entire record, the
undersigned finds the claimant has the residual functional
capacity (RFC) to perform lifting and/or carrying of 50
pounds occasionally and 25 pounds frequently; standing
and/or walking of 6 hours in an 8 hour workday; sitting of
6 hours in an 8 hour workday; unlimited pushing and/or
pulling; avoidance of concentrated exposure to fumes,
odors, dusts, gases; able to understand, remember and carry
out simple and detailed instructions; able to concentrate,
focus and perform such tasks with adequate persistence and
pace; not easily frustrated and able to work with average
speed; social skills are mildly limited, but adequate; no
limitation in adaptive skills.

5.

The claimant is unable to perform any past relevant work
(20 CFR 416.965).

6.

The claimant was 46 years old (a younger individual age
18-49) on the date the application was filed (20 CFR
416.963).

7.

The claimant has a high school education and one year of
college, and is able to communicate in English (20 CFR
416.964).

8.

The claimant has acquired work skills from past relevant
work (20 CFR 416.968).

9.

Considering the claimant’s age, education, work
experience, and residual functional capacity, the claimant
has acquired work skills from past relevant work that are
transferable to other occupations with jobs existing in
significant numbers in the national economy (20 CFR
416.969, 416.969(a) and 416.968(d)).

10.

The claimant has not been under a disability, as defined in
the Social Security Act, since November 26, 2007, the date
the application was filed (20 CFR 416.920(g)).

TR 14-25.
On September 16, 2010, Plaintiff timely filed a request for review of the hearing
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decision. TR 170. On March 16, 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 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)).

4

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
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

5

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:
(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

3

The Listing of Impairments is found at 20 C.F.R., Pt. 404, Subpt. P, App. 1.
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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
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) did not accord appropriate weight to Plaintiff’s
treating physicians, and (2) erred in determining that Plaintiff was not fully credible. 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).
“In cases where there is an adequate record, the Secretary’s decision denying benefits can
7

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 Opinion of Plaintiff’s Treating Physicians
Plaintiff maintains that the ALJ failed to adequately consider the opinion of Angela
Wood, APRN and Dr. Cynthia Rector, M.D.4 Docket No. 13. Specifically, Plaintiff argues that
the ALJ relied “primarily on the limitations, or lack thereof,” assessed by consultative
psychological examiner, Dr. Kathryn Sherrod when “attempt[ing] to discount the opinions of the
Plaintiff’s long-time mental health provider,” and did not provide “good reasons” for discounting
the opinion of Plaintiff’s treating physician. Id. at 12. Plaintiff further contends that the ALJ did
not discuss “any of the specific factors required by the Sixth Circuit case law to discount the
opinion of a treating physician.” Id. Plaintiff also maintains that the ALJ’s decision to discount
Nurse Wood and Dr. Rector’s opinion was not supported by substantial evidence. Id. at 14.
Defendant responds that the ALJ was not required to defer to an unsupported conclusory
opinion of disability submitted by treating physicians, and that the ALJ properly weighed Nurse
Wood and Dr. Rector’s opinion. Docket No. 14. Defendant specifically contends that the ALJ
indicated that he did not give the treating physician medical source statement much weight

4

The opinion to which Plaintiff is referring is a single medical source statement signed
by both Nurse Wood and Dr. Rector. TR 563-565.
8

because it was inconsistent with the clinical findings. Id.
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.
(5) Specialization. We generally give more weight to the
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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
source who provides you or has provided you, with 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).
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treatment or evaluation and who has, or has had, an ongoing
treatment relationship with you.
20 C.F.R. § 404.1502.
Treatment records indicate that Nurse Wood6 was one of Plaintiff’s treating sources, 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. Nurse Wood’s opinion, as enunciated in
the medical source statement (TR 563-565), however, contradicts other substantial evidence in
the record, including Plaintiff’s treatment records. Contrary to Plaintiff’s assertion that the ALJ
did not consider any of the requisite factors, the ALJ discussed how the medical source statement
was contradicted both by other medical evidence and by Plaintiff’s testimony regarding her daily
activities. Specifically, the ALJ stated:
A medical source statement was prepared by Nurse Wood (APN)
in May 2009, signed by Dr. Rector, apparently connected to
Lifecare (according to her representative’s statements at the
hearing). (Exhibit 17F) Apparently, Nurse Wood relied heavily
upon subjective complaints of symptoms and therefore, her
assessment may not represent an objective opinion . . .
Furthermore, the Wood/Rector assessment is not well supported by
clinical findings (Exhibit 18F indicated her mood was “stable”
with no symptoms of psychosis, mania, anxiety or depression; is
able to concentrate, remember and her judgment, reliability and
insight are fair) or psychological diagnostic techniques, and is not
inconsistent [sic] with other substantial evidence (she is able to
help her husband run his construction company, including a good
range of daily activities performed [sic]. For all these reasons, the
Wood/Rector opinion is entitled to less weight. (20 CFR
404.1527(d)(3) and (d)(4))

6

Dr. Rector is not listed as Plaintiff’s treating physician on any of the treatment notes
provided by LifeCare. TR 372-400, 434-54, 525-61, 566-86.
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TR 24, citing TR 562-65, 566-86.
As the Regulations state, the ALJ is not required to give controlling weight to a treating
source’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 source’s opinion is weighed against the contradictory
evidence under the criteria listed above. Id. Because Nurse Wood’s opinion was based on
Plaintiff’s subjective complaints, and was inconsistent with other evidence of record, including
Plaintiff’s reported daily activities, the Regulations do not mandate that the ALJ accord Nurse
Wood’s evaluation controlling weight. Accordingly, Plaintiff’s argument that the ALJ did not
accord proper weight to Nurse Wood’s medical source statement fails.
2. Credibility of Plaintiff’s Subjective Complaints
Plaintiff contends the ALJ erred in finding that her subjective complaints were not fully
credible. Docket No. 13. Specifically Plaintiff argues that the ALJ improperly relied on the
contradictions between a report by consultative psychological examiner Kathryn Sherrod, Ph.D.
and Plaintiff’s own testimony. Id. Plaintiff asserts that since this report was “totally
unsupported upon even cursory examination,” its findings should not have been used to
determine Plaintiff’s credibility. Id. at 16. Plaintiff further asserts that the because the ALJ
believed that Plaintiff was not entirely credible, he improperly “gloss[ed] over the objective
medical evidence in the file which supports a diagnosis of [fibromyalgia]” and “fail[ed] to
consider adequately the pain and fatigue caused by this condition.” Id. at 17. Plaintiff also
asserts that the ALJ never discussed the fact that Plaintiff’s narcotic treatment for fibromyalgia
had been ongoing for “a number of years,” or the fact that Dr. Sullivan’s office had signed a

12

request for a handicapped parking placard for Plaintiff due to her fibromyalgia. Id. Plaintiff
additionally argues that the ALJ erroneously discredited Plaintiff’s complaint of carpal tunnel
syndrome on the basis of psychologist’s opinion regarding this condition, which was improper
considering this was not within the psychologist’s area of expertise. Id. at 16.
Defendant responds that the consultative psychological examiner’s report was based on
her professional observations of Plaintiff, as well as valid psychological testing, and therefore
constitutes valid evidence in support of the ALJ’s determination that Plaintiff’s subjective
complaints were not entirely credible. Docket No. 14. Defendant additionally argues that, when
making his credibility determination, the ALJ considered contradictions in Plaintiff’s testimony
regarding the reasons she had left her previous jobs and contradictions in Plaintiff’s self-reported
daily activities. Id. Defendant further argues that the ALJ also considered medical evidence
relating to Plaintiff’s complaints of fibromyalgia and carpal tunnel syndrome. Id. Defendant
concludes that because the ALJ specifically addressed all of this evidence, he could properly find
Plaintiff’s subjective complaints concerning her bipolar disorder, fibromyalgia, and carpal tunnel
syndrome to be less than fully credible. Id.
The Sixth Circuit has set forth the following criteria for assessing a plaintiff’s allegations
of 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

13

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.”).
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, 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).
Despite Plaintiff’s assertion that Dr. Sherrod’s report was “groundless” and therefore
should not have been considered by the ALJ when determining Plaintiff’s credibility, the ALJ
found that Dr. Sherrod’s assessment was “well supported by clinical findings and psychological

14

diagnostic techniques,” and “not inconsistent with other substantial evidence, including good
ability to perform activities of daily living.” TR 24. Specifically, Dr. Sherrod’s assessment was
consistent with assessments from LifeCare and from Kathryn Steele, Psy. D., which the ALJ
discussed as follows:
In February 2008, Dr. Sherrod reported Mrs. Hampton acted like
she was being inconvenienced by having to participate in the
consultative mental status examination (CE). Dr. Sherrod reported
the claimant’s effort on testing tasks was “marginal.” Dr. Sherrod
reported she responded carelessly and quickly, and gave up
quickly, at times. She refused to attempt serial 7's and she
appeared to make intentional errors. For example, when asked to
close her eyes and touch her fingers to her nose, she touched her
finger to her mouth, nose and then cheek. When asked to close her
eyes and touch her left finger to her nose, she touched her upper lip
and her cheek. Dr. Sherrod reported this task is usually performed
correctly, even by individuals who have suffered strokes or other
serious illness. However, Dr. Sherrod reported her effort on
testing was sufficient to provide an estimate of her current level of
functioning. Dr. Sherrod reported she understood test directions,
did not require any test be explained in simpler terms, had
adequate concentration when responding to questions, had
adequate eye contact and her statements made sense. When asked
to name a fourth President, she said she did not know the name of
the governor of Tennessee. When asked to close her eyes and
touch her right finger to her nose, she touched her upper lip three
times. On Bender Gestalt Test, she worked haphazardly and
carelessly, but completed the drawings within the normal time
limits. She had no motor tremor and exhibited adequate
organizational skills. Significantly, Dr. Sherrod reported the
symptoms Mrs. Hampton described did not support the earlier
diagnosis of bipolar disorder NOS and that she appeared to be
“more functional than she claims.” (Exhibit 9F)
In February 2008, LifeCare reported increased stressors
accompanied by increased symptoms. In April 2008, her mood
was relatively stable, her memory was intact, she was able to
concentration [sic], and she had normal thought content, tearful
affect and depressed mood. In April 2008, she had increased
stressors with accompanying symptoms of major depression. In
June 2008, Vistaril was started for anxiety. Her memory (recent,
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immediate and remote) was intact, she was able to concentration
[sic], her thought content was disordered, her affect was bland and
she had euthymic mood. In August 2008, her mood was “stable”
with a flat affect. Mental status examination revealed she was able
to concentrate and had intact memory, despite her reports of poor
concentration. In November 2008, she was “coping well” with
relatively “stable” mood.” There were no symptoms of psychosis,
mania, depression or anxiety. In March 2009, faced with eviction
with no place to go, her mood was dejected. The mental health
provider reported “she does not personally assume any
responsibility for current situation” and was angry with her
husband. (Exhibits 13F, 16F) In October 2009 and in February
2010, she was able to concentrate, had intact memory, had normal
thought and “stable” mood. Despite the stressors of being
separated from her husband and facing eviction she was “coping
well.” In March 2010, she had “stable” mood, “appropriate”
affect, was able to concentrate, had normal thought content and
had intact memory. She was coping well with the situation, her
mood was “stable” and she had no symptoms of psychosis or
mania. Anxiety was manageable and directly related to her
stressors. Nevertheless, LifeCare kept her GAF scores in the 40's
(Exhibit 18F), which are scores very inconsistent with the latest
clinical findings of an ability to concentrate, intact memory,
normal thought, “stable” mood, “coping well,” appropriate affect,
no symptoms of psychosis or mania and reports that anxiety was
manageable with medication.
In July 2010, Kathryn Steele, Psy. D., performed a consultative
mental status examination (CE). The claimant arrived alone,
appeared calm and arrived promptly. She had driven herself. She
wore glasses; her affect was appropriate; her mood appeared flat;
and thinking was organized. Her self-reported evidence of
delusions was explained as: she dreamed of events before they
occurred. She self-reported evidence of hallucinations, saying she
saw and heard deceased family members, and unknown voices
telling her to harm herself. Attention was intact in the CE setting
with “mildly” impaired concentration. Estimated intellectual
functioning was in the average range. She was able to recall 2/3 of
the items after 5 minutes; however, she was capable of providing
detailed information regarding her past, her daily activities and
medications from memory, which remained intact (short and long
term). She met the criteria for a mood disorder, but symptoms
appeared to be “well managed” through medication and
psychotherapy. Dr. Steele assessed a GAF of 55, which is
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consistent with moderate limitations.
TR 15-17, citing TR 401-07, 434-54, 525-61, 566-86.
Additionally, the ALJ properly factored into his credibility determination the
inconsistencies between Dr. Sherrod’s report and Plaintiff’s testimony and reported daily
activities, and discussed Dr. Sherrod’s findings regarding Plaintiff’s bipolar disorder as follows:
. . . She did appear to be “mildly depressed,” but did not present as
a person with significant mental health issues. Dr. Sherrod further
recommended a formal test for malingering, such as SIRS. The
diagnoses included dysthymic disorder, nicotine dependence (three
packs per day) and rule out cannabis and cocaine abuse.
Interestingly, her GAF was 60 to 65, which is consistent with mild
to moderate limitations.
TR 17-18, quoting TR 406.
Also when considering Plaintiff’s credibility, the ALJ discussed psychological evidence
concerning Plaintiff’s social functioning, concentration, and “episodes of decompensation”
stating:
Regarding social functioning, in 2007, the claimant reported she
was married to her second husband and raising three children. She
said she visited others. She said she weekly participated in
community, church, sports or social group, i.e., she ran a cub scout
meeting. She reported recent stressors of the death of her
stepfather, her mother had been sick, her husband had heart
problems and her husband’s business was being audited by the
IRS. She said she visited others mostly on the telephone. She said
she did not get along with authority figures. In February 2008, her
children’s ages were 9, 11 and 17. She reported she had no friends,
but on psychologist testing, she named three of her neighbors. The
examining psychologist reported she had mild limitation in this
area. (Exhibits 5E, 6E, 14E, 8F, 9F) A state agency psychologist
reported she had mild limitation in this area. (Exhibit 12F)
Therefore, based upon a preponderance of the evidence, it is
determined there is mild limitation in this area.
Regarding concentration, persistence or pace, in September 2007,
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treatment records showed she was “able to concentrate” and had an
intact memory. She said she could pay attention for maybe one
hour. She said she followed written and spoken instructions
“okay.” In July 2010, Dr. Steele reported her attention was intact
in the CE setting. (Exhibits 6E, 8F, 20F) Dr. Sherrod reported she
had no limitation in understanding and remembering, no limitation
with her memory, no limitation in her ability to concentrate, no
limitation in persistence or pace, and no limitation in adaptive
skills. (Exhibit 9F) Dr. Sherrod’s assessment is well supported by
clinical findings and psychological diagnostic techniques, and is
not inconsistent with other substantial evidence, including her
ability to perform activities of daily living. Therefore, based upon
a preponderance of evidence, it is determined there are no
limitations in this area.
Regarding episodes of decompensation in work or work-like
setting, no reviewing, treating or examining physician, psychiatrist
or nurse practitioner reported any such episodes. The claimant
alleged decompensation at work; however, the objective evidence
does not support these allegations. Furthermore, two state agency
psychologists report there have been no such episodes. Therefore,
based upon a preponderance of the evidence, it is determined there
have been no such episodes.
TR 18-19, citing TR 223-32, 261-69, 372-407, 420-33, 608-15.
Additionally, the ALJ discussed Plaintiff’s reported daily activities, which were
inconsistent with her subjective claims, stating:
Regarding activities of daily living, in 2007, she reported she
enjoyed riding horses and had “lots of animals.” She reported she
cared for her children and her mother who was disabled. She
indicated she was taking care of the children and the animals, and
was scoutmaster for her son’s troop. Her husband reported the
claimant did “not make the kids help her with chores at home.”
The husband further admitted that his lack of helping around the
home did not make her very happy. She reported she feeds the
cats and dogs. She said her hobbies and interests included reading,
horses and sewing. The claimant reported her husband showed
lack of concern in financial matters and in participating in family
care. Also, she said “they have been trying to remodel home.” In
addition, she reported she could count change, handle a savings
account and use a checkbook/money orders. In November 2007,
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treatment records showed she did domestic duties including
childcare. In December 2007, her physically and mentally ill
daughter came home and they helped an 18 year old, pregnant teen
by allowing her to live with them. In February 2008, she reported
she got up at 6 a.m., ate a simple breakfast, got her children up,
prompted them to get ready for school, drove them to the end of
the street to the bus stop, skipped lunch and slept in the afternoon.
However, when asked who cared for her three children, she said
she picked the children up, made sure they did their homework,
fixed supper (tacos or something easy) and went to bed after
supper. When asked if she performed any tasks for the children
after supper, she said she made sure they showered and got in bed.
She reported she usually went to bed at 7 p.m., adding that she was
“up and down.” She explained that when she felt good, she
prepared all the meals, worked in the morning and afternoon,
relaxed after supper, went to bed at 9 p.m., slept well, had no
hobbies, and missed being a scout leader, riding horses, sewing
and reading, adding she no longer participated in these activities
due to pain. [In July 2007, she reported she enjoyed riding horses
and reported they had “lots of animals.”] In addition, she was able
to attend to all self-care needs unassisted, get up in the morning,
bathe, wash her hair, brush her teeth, comb her hair, dress
unassisted, perform “some” household chores (although other
evidence indicates she did all the household chores and child care,
because her husband did not help and she did not make the
children help), such as cook easy meals and wash dishes. She also
reported her daughter washed clothes. When asked if she was able
to make the beds, she responded “it’s doubtful.” She also
indicated that on a bad day (3 or 4 days a week), she could not get
up. She said she attended church services once or twice a month,
did not have any friends, did not visit her family, did shop for
groceries, prepared a list of items to remember and her husband
drove her to the store. However, she reported she owned a vehicle
and had a driver’s license.
...
In April 2008, she “helps husband run a construction company.”
In August 2008, she and her family had been on vacation in
Florida. They took the children swimming and they played board
games, and her husband agreed to get a second job. In September
2008, she reported her husband and children had to do the house
cleaning. She said she was able to do laundry and light cleaning
on good days. . . . In June, July, September, November and
December 2009 and in February and March 2010, she continued to
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help her husband run a construction company. In July 2010, she
reported a “very limited daily routine,” which included getting up
at 9 a.m., playing on the computer, reading the Bible until 12.30
[sic] p.m., taking naps for 2 hours, talking to her children and
watching television. She said she went to bed at 9 p.m., slept good
on medication, attended to household chores such as laundry and
cooked a full meal at least twice a week. She said she had not
been to the grocery store in 6 months due to “her dislike of leaving
the house.” She said she showered every other day, brushed her
teeth once a day and dressed only to attend appointments.
However, she was able to drive herself to the CE, arrived promptly
and came alone. Upon arrival, she appeared calm. She completed
paperwork independently and was observed to be organized and
detailed in doing so. She was neat and clean and casually dressed
in floral pants, a blouse and sandals. (Exhibits 5E, 6E, 9E, 13E,
14E, 8F, 13F, 16F, 18F) There is voluminous evidence which
indicates the claimant has a great range of daily activities.
Therefore, based upon a preponderance of the evidence, it is
determined there is no limitation in the area.
TR 17-18, citing TR 223-32, 244-45, 259-69, 372-400, 434-54, 525-61, 566-86, 609 (bracketing
original).
In addition to the aforementioned, the ALJ also considered contradictions in Plaintiff’s
statements regarding her work history. The ALJ specifically stated:
At the hearing, the claimant testified she would “go manic” and
“do something stupid” which had cost her “every” job. However,
her earlier reports indicate there were several other reasons for
leaving jobs (other than her mental impairment). For example, in
February 2008, the claimant reported she was not able to work
“lately” because of brown recluse spider bites and possible
methicillin-resistant staphylococcus aureus infection (MRSA).
(Exhibit 9F, p 3) In February 2008, she told Dr. Sherrod she quit
her first job working as a hotel maid “because of school.” Dr
Sherrod reported she did not fill out any further information
regarding previous jobs and said she was “quite vague when
questioned during the interview.” When further questioned about
her past work, “she vaguely responded, I’ve worked a bunch of
different ones.” When questioned further, she admitted she
worked as an administrative assistant for Metro General Hospital
from the fall of 1993 through June 1995, and reported she quit due
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to a manic phase. However, her husband spoke up and said “her
boss was a dirty old man and she wouldn’t go along with him.”
Then, she described a job, which lasted 18 months for a printing
company. The documented reason for quitting, “the business
closed.” She also reported she had a waitress job for six months in
1995, which she left due to “my ex husband broke my left cheek.”
(Exhibit 9F)
TR 14, quoting TR 403.
As can be seen, the ALJ’s decision specifically addresses in great detail not only the
medical evidence, but also Plaintiff’s testimony and her subjective claims, clearly indicating that
these factors were considered. TR 14-21. It is clear from the ALJ’s detailed discussion that,
although there is evidence which could support Plaintiff’s claims, the ALJ chose to rely on
medical findings and Plaintiff’s own statements concerning work history and daily activities that
were inconsistent with Plaintiff’s allegations. This is within the ALJ’s province.
Although Plaintiff contends that the ALJ “gloss[ed] over” evidence relating to Plaintiff’s
complaint of fibromyalgia, the ALJ considered the medical evidence relating to this complaint as
well, and discussed it as follows:
The claimant testified she had fibromyalgia (FM) which was
diagnosed by a specialist years earlier; that she spent an entire year
in bed. She indicated FM was treated with morphine and muscle
relaxants twice a day. She testified FM prevented her from using
her hands to button or zip her clothes. The medical evidence
shows that in 2005, myofascial pain was diagnosed. She had
tenderness to palpation over multiple trigger points with full range
of motion in lower extremities and full (5+/5) muscle strength
bilaterally in the upper and lower extremities. (Exhibit 5F) In
2008 and early 2009, Dr. Sullivan treated FM with associated
weight gain and menopause. He regularly refilled a prescription
for MsContin [sic] (Exhibit 15F), apparently not aware of her
history of polysubstance abuse. In January 2010, Dr. Sullivan
assessed generalized fibromyalgia (FM). (Exhibit 19F) There is no
indicate [sic] the claimant required ongoing trigger point injections
or she may have opted to receive narcotics. The medical evidence
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supports FM may cause some pain, and in combination with other
impairments, may necessitate reduction in lifting and/or carrying to
50 pounds occasionally and 25 pounds frequently, which is added
to the RFC.
TR 21 citing TR 315-35, 469-524, 587-607.
Contrary to Plaintiff’s argument otherwise, the ALJ discussed the totality of the evidence
relating to Plaintiff’s complaint of carpal tunnel syndrome as follows:
The claimant testified she had moderate carpal tunnel syndrome
(CTS). The medical evidence shows that in 1997, bilateral carpal
tunnel syndrome (CTS) was diagnosed without benefit of
electrodiagnostic testing. (Exhibit 2F) In 2005, she had full (5+/5)
muscle strength bilaterally in the upper and lower extremities.
Treatment records indicate a neurologist diagnosed her with CTS
(Exhibit 5F); however, these records cannot be located in the
record. In February 2008, an examination showed fine motor
skills were within normal limits. (Exhibit 9F) Without
electrodiagnostic studies, surgical records or clinical findings,
allegations of bilateral CTS represent a medically nondeterminable impairment or at most, a “non-severe” impairment.
TR 14, citing TR 304-09, 315-35, 401-07.
The ALJ, when evaluating the entirety of the evidence, is entitled to weigh the objective
medical evidence against Plaintiff’s subjective claims of pain 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,

22

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 assessing the medical and testimonial evidence of record, the ALJ determined that:
Inconsistencies of record detract from credibility. The claimant
testified she had lost every job due to mental symptoms. However,
the record reveals she lost jobs for numerous other reasons (see
discussion under finding number one). Also, her activities of daily
living are inconsistent with allegations of disability (see discussion
on pages 6 and 7). In 2007, her mental health provider reported
her medical compliance was “moderately” cooperative. (Exhibit
8F) In February 2008, she reported she was “trying to get her
disability and she was “afraid” if she gets a job she may not get
disability.” (Exhibit 8F, p 28) This statement clearly shows
failure to work may have been connected to her desire to receive
monetary gain in the form of disability benefits. Additionally, she
reported she had not received vocational rehabilitation services,
employment services or other support services that could help her
get back to work. (Exhibit 3E) It is noted the evidence does not
indicate she has taken the initiative to seek such services. She
alleges she has been unable to perform any type of gainful
employment since November 26, 2007. However, substantial
evidence indicates she has no physical limitations which preclude
the performance of any exertional level of work activity (for
specific restrictions see the RFC at finding number four).
Additionally, her performance of driving, shopping, caring for
three minor children and housecleaning belie allegations of
disability. Inconsistencies give validity to the belief that
symptoms and limitations have been overstated. When the
objective evidence and daily activities are measured against
testimony, allegations of disability become less credible. When
measured against an inconsistent work history, as seen in her
earnings record (Exhibit 5D), testimony regarding her inability to
perform any type of work activity becomes even less credible.
Therefore, it is determined suggestions of symptom overstatement,
lack of initiative in seeking vocational rehabilitation assistance,
numerous discrepancies of record, a wide range of daily activities,
evidence suggestive of malingering and inaccurate statements
23

regarding illegal drug use cause credibility to be adjudged as
questionable.
TR 22, citing TR 192-93, 201-10, 372-400.
The ALJ observed Plaintiff during her hearing, assessed the medical records, reached a
reasoned decision, and articulated his reasons for that decision; the ALJ’s finding that none of
the ailments alleged by Plaintiff was severe enough to preclude her from gainful employment is
supported by substantial evidence and the decision not to accord full credibility to Plaintiff’s
subjective allegations 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
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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