Graves v. Social Security Administration

Filing 18

REPORT AND RECOMMENDATION: The undersigned recommends that Plaintiff's Motion for Judgment on the Administrative Record be DENIED, and that the decision of the Commissioner be AFFIRMED. Signed by Magistrate Judge E. Clifton Knowles on 8/23/13. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
BENITA DAWN GRAVES,

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

Civil Action No. 3:12-cv-01242
Judge Nixon / Knowles

REPORT AND RECOMMENDATION
This is a civil action filed pursuant to 42 U.S.C. § 405(g), to obtain judicial review of the
final decision of the Commissioner of Social Security denying Plaintiff Disability Insurance
Benefits (“DIB”), as provided under Title II of the Social Security Act (“the Act”). The case is
currently pending on Plaintiff’s “Motion for Summary Judgment on the Record Social Security
Disability Benefits.”2 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. Plaintiff has filed a Reply to Defendant’s Response. Docket No. 17.

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).
2

Although Plaintiff entitles her document, “Motion for Summary Judgment on the
Record Social Security Disability Benefits,” the undersigned will construe it as a Motion for
Judgment on the Administrative Record.
1

For the reasons stated below, the undersigned recommends that Plaintiff’s “Motion for
Summary Judgment on the Record Social Security Disability Benefits” be DENIED, and that the
decision of the Commissioner be AFFIRMED.
I. INTRODUCTION
Plaintiff filed her application for Disability Insurance Benefits (“DIB”) on April 21,
2008, alleging that she has been disabled since August 2, 2007, due to osteoarthritis,
fibromyalgia, parathesia, migraines, and anxiety. See, e.g., Docket No. 8, Attachment (“TR”),
pp. 112, 133. Plaintiff’s application was denied both initially (TR 45) and upon reconsideration
(TR 46). Plaintiff subsequently requested (TR 66) and received (TR 84) a hearing. Plaintiff’s
hearing was conducted on April 13, 2010, by Administrative Law Judge (“ALJ”) James Lessis.
TR 22. Plaintiff and vocational expert (“VE”), Calvin Turner, appeared and testified. Id.
On March 18, 2011, 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 8.
Specifically, the ALJ made the following findings of fact:
1.

The claimant meets the insured status requirements of the
Social Security Act through December 31, 2012.

2.

The claimant has not engaged in substantial gainful activity
since August 2, 2007, the alleged onset date (20 CFR
404.1571 et seq.).

3.

The claimant has the following severe impairments:
fibromyalgia, CMC joint osteoarthritis, migraine
headaches, depression and anxiety (20 CFR 404.1520(c)).

4.

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 404.1520(d), 404.1525 and
404.1526).
2

5.

After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to maintain employment at the level of
lifting and carry [sic] a maximum of 10 pounds; to stand
and walk 2 hours in an 8-hour workday; to sit 6 hours in an
8-hour workday; she is restricted to negligible climbing,
balancing, kneeling, stooping, crouching, crawling; she is
restricted to negligible use of pedals (foot controls); she is
restricted to frequent reaching, handling, fingering, and
feeling; and negligible exposure to extreme temperatures,
vibrations, moving mechanical parts, electric shock,
hazardous exposed places, radiation, explosives, and to
fumes, odors, dust, gasses, and poor ventilation.
Furthermore, she is limited to minimal contact with the
public, co-workers, and supervisors. From a mental
standpoint, the claimant has the reasoning, mathematical,
and language (R-M-L) development to do the following:
apply commonsense understanding to carry out detailed but
uninvolved written or oral instructions; deal with problems
involving a few concrete variables in or from standardized
situations; add, subtract, multiply, and divide all units of
measure; perform the four operations with like common
and decimal fractions; compute ratio, rate, and percent;
draw and interpret bar graphs; perform arithmetic
operations involving all American monetary units; read a
passive vocabulary of 5,000 to 6,000 words; read at a rate
of 190-215 words per minute; read adventure stories and
comic books, looking up unfamiliar words in a dictionary
for meaning, spelling, and pronunciation; read instructions
for assembling model cars and airplanes; write compound
and complex sentences, using cursive style, proper end
punctuation, and employing adjectives and adverbs; speak
clearly and distinctively with appropriate pauses and
emphasis, correct pronunciation, and variations in word
order, using present, perfect, and future tenses.

6.

The claimant is unable to perform any past relevant work
(20 CFR 404.1565).

7.

The claimant was born on June 1, 1963 and was 44 years
old, which is defined as a younger individual age 18-44, on
the alleged disability onset date. The claimant
subsequently changed age category to a younger individual
3

age 45-49 (20 CFR 404.1563).
8.

The claimant has at least a high school education and is
able to communicate in English (20 CFR 404.1564).

9.

Transferability of job skills is not material to the
determination of disability because using the MedicalVocational Rules as a framework supports a finding that
the claimant is “not disabled,” whether or not the claimant
has transferable job skills (See SSR 82-41 and 20 CFR Part
404, Subpart P, Appendix 2).

10.

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 404.1569 and
404.1569(a)).

11.

The claimant has not been under a disability, as defined in
the Social Security Act, from August 2, 2007, through the
date of this decision (20 CFR 404.1520(g)).

TR 10-16.
On May 18, 2011, Plaintiff timely filed a request for review of the hearing decision. TR
110. On September 27, 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
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.

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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
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))).

5

In reviewing the decisions of the Commissioner, courts look to four types of evidence:
(1) objective medical findings regarding Plaintiff’s condition; (2) diagnosis and opinions of
medical experts; (3) subjective evidence of Plaintiff’s condition; and (4) Plaintiff’s age,
education, and work experience. Miracle v. Celebrezze, 351 F.2d 361, 374 (6th Cir. 1965).
B. Proceedings At The Administrative Level
The claimant carries the ultimate burden to establish an entitlement to benefits by
proving his or her “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to last for a
continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). “Substantial gainful
activity” not only includes previous work performed by Plaintiff, but also, considering Plaintiff’s
age, education, and work experience, any other relevant work that exists in the national economy
in significant numbers regardless of whether such work exists in the immediate area in which
Plaintiff lives, or whether a specific job vacancy exists, or whether Plaintiff would be hired if he
or she applied. 42 U.S.C. § 423(d)(2)(A).
At the administrative level of review, the claimant’s case is considered under a five-step
sequential evaluation process as follows:
(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

6

“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
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).

3

The Listing of Impairments is found at 20 C.F.R., Pt. 404, Subpt. P, App. 1.
7

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 erred in failing to properly: (1) address and weigh the
medical opinion evidence of record; (2) evaluate Plaintiff’s credibility; (3) assess Plaintiff’s
residual functional capacity; and (4) determine the number of jobs that Plaintiff could perform.
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
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. Medical Opinion Evidence
8

Plaintiff argues that the ALJ failed to properly consider and evaluate the medical opinion
evidence of record. Docket No. 13 at 7. Specifically, Plaintiff argues that the ALJ should have
accorded greater weight to the opinions of treating and examining physicians Drs. C. Rob Dyer,
Steven Larson, Edmundo Magpantay, Jane Siegel, Bruce Butler, John Yuill, M. Farooq Ali, and
Randall Curtis, because those opinions demonstrate that Plaintiff’s left-hand impairment proves
that she is disabled. Id. at 9-11, citing TR 80-81, 426-27, 454, 456, 674, 676, 745, 891, 1093.
Plaintiff alleges that the ALJ erroneously considered only the opinions of Dr. Yuill and Dr.
Magpantay, and that the ALJ’s consideration of their opinions was narrowly circumscribed, as it
failed to note that both physicians agreed that Plaintiff could not perform repetitive hand motion.
Id. at 11, referencing TR 13, 674, 891. Plaintiff asserts that an ALJ’s dismissal of a treating
physician’s opinion requires an explicit and specific rationale, and that, in the instant case, the
ALJ failed to provide that specificity. Id. at 12; citing Bowen v. Commissioner, 478 F.3d 742,
748 (6th Cir. 2007).
Defendant maintains that the ALJ properly evaluated the medical opinions and evidence
of record. Docket. No. 14 at 8-13. Defendant asserts that, as a preliminary matter, not all
physicians’ statements are medical opinions as defined by 20 C.F.R. § 404.1527(a)(2),4 and that
an ALJ is not bound by physicians’ conclusory statements that are unsupported by objective
medical evidence. Id. at 8; citing 20 C.F.R. § 404.1527(a)(2); Buxton v. Halter, 246 F.3d 762,

4

20 C.F.R. § 404.1527(a)(2) states:
Medical opinions are statements from physicians and psychologists
or other acceptable medical sources that reflect judgment(s), about
the nature and severity of your impairment(s), including your
symptoms, diagnosis and prognosis, what you can still do despite
your impairment(s), and your physical condition.
9

773 (6th Cir. 2001). Defendant also asserts that, regardless, each of the eight physicians’ notes
and opinions is not inconsistent with the ALJ’s findings. Id. at 9-13.
Regarding Dr. Dyer, Defendant asserts that Dr. Dyer’s statement discussed by Plaintiff
was merely a note to be given to Plaintiff’s employer regarding her left-thumb pain and her
ability to perform her mail carrier job, and was not a medical opinion. Id. at 9, citing TR 13, 42627. Additionally, Defendant maintains that Dr. Dyer’s note did not preclude all types of work.
Id.
Discussing Dr. Larson, Defendant similarly claims that the note Plaintiff cited was a
request for a one-day medical leave, and not a medical opinion. Id., citing TR 456. With regard
to Dr. Magpantay, who performed a Fitness-for-Duty (FFD) examination, Defendant claims that
the note referenced by Plaintiff was likewise not a medical opinion, and that Dr. Magpantay did
not consider Plaintiff’s impairments for Social Security purposes. Id. at 9-10, citing TR 13-14,
668-70, 674.
Addressing Dr. Siegel, Defendant notes that, although Plaintiff argues that Dr. Siegel’s
statement purported that Plaintiff could not do any job requiring left-thumb gripping, Dr.
Siegel’s statement, in fact, stated that Plaintiff had only “mild” arthritis and could return to work
with splints. Id. at 10, citing Docket No. 13 at 10; TR 676, 677, 682, 686. As with the previous
physicians’ statements, Defendant argues that Dr. Siegel offered no medical opinion regarding
Plaintiff’s ability to do other jobs. Id. at 10-11.
Regarding Dr. Butler, Defendant argues that: his report summarizes Dr. Magpantay’s
previous assessment; the “report is not a medical opinion under SSA’s regulations;” it is not
inconsistent with the ALJ’s findings; and Dr. Butler is not a treating or examining physician. Id.

10

at 11, citing TR 744-746. Defendant then notes that Dr. Yuill’s medical opinion speaks only to
Plaintiff’s ability to complete postal duties and is not applicable to a Social Security
determination, nor is it inconsistent with the ALJ’s finding that Plaintiff could perform other
jobs. Id. at 11-12, citing TR 23, 686, 891, 1009.
Defendant also addresses Dr. Ali’s RFC assessment, which opines that Plaintiff could sit,
stand, and walk for less than an hour. Id. at 12, citing TR 80. Defendant claims this assessment
is not supported by objective medical evidence (including Dr. Ali’s own examination findings)
or by Plaintiff’s subjective complaints. Id. at 12, citing TR 149, 168, 188, 428-29. Finally,
regarding Dr. Curtis, Defendant argues that his statement was not a medical opinion but a legal
conclusion, and as such, the ALJ was not required to give it any “special significance.” Id. at 13,
citing 20 C.F.R. § 404.1527(e)(3), referencing TR 1093. Defendant additionally notes that Dr.
Curtis’s statement was rendered after the ALJ’s decision, and it would thus have been impossible
for the ALJ to consider it. Id., citing TR 1093.
Plaintiff replies that the statements made by Drs. Magpantay, Seigel, Butler, Yuill, Ali
and Curtis are, in fact, medical opinions.5 Docket No. 17 at 1-7. Plaintiff specifically argues that
Dr. Magpantay’s statement that Plaintiff “could potentially drop objects she carries,” is a
medical opinion within the meaning of 20 C.F.R. § 404. 1527(a)(2). Id. at 2, quoting TR 675.
Plaintiff also asserts in her Reply that Defendant’s reasoning for rejecting the RFC assessment of
Dr. Ali was not discussed by the ALJ, so this reasoning cannot be applied post hoc to correct the
ALJ’s error. Id. at 5, citing Docket No. 14 at 12. Finally, Plaintiff replies that Dr. Curtis’

5

Plaintiff’s Reply does not address whether the statements made by Drs. Dyer and
Larson are medical opinions.
11

opinion should have been considered by the ALJ. Id. at 6-7, referencing TR 1093.
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 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.

12

(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.6 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 un-contradicted, 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:

6

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).
13

[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.
In the instant case, the ALJ discussed the medical evidence of record at length. TR 12-14.
Although Plaintiff is correct that the ALJ did not mention each physician by name, as will be
discussed in greater detail below, the ALJ did appropriately consider the physician records.
Docket No. 13 at 11; TR 11-14.
Plaintiff contends that the ALJ should have considered that, on June 4, 2007, Dr. Rob
Dyer ordered Plaintiff to stop working until further notice because of “degenerative arthritis at
the base of her thumb with early breakdown.” Docket No. 13, at 9, quoting TR 426. As an
initial matter, TR 426 is an “office note” from Dr. Dyer reporting x-ray and examination results.
In that note, Dr. Dyer indicated that he gave Plaintiff an injection, a brace, and a “note to return
to work in two days.” TR 426. Contrary to Plaintiff’s assertion, Dr. Dyer did not “order[]
Plaintiff to stop working until further notice.” In fact, as noted, Dr. Dyer explicitly stated that he
gave Plaintiff a “note to return to work in two days.” TR 426.
Dr. Dyer is a physician practicing with Tennessee Orthopaedic Alliance (“TOA”).7 Dr.
Dyer’s treatment records are contained in Exhibits 4F and 15F. See TR 412-27, 676-702. The
ALJ directly referenced Dr. Dyer’s treatment notes and TOA medical records as follows:
The medical evidence shows that the claimant has a history of
osteoarthritis in her left hand and CMC joint of her left thumb,

7

Tennessee Orthopaedic Alliance records dated February 1, 2005 to August 9, 2007 are
designated as Exhibit 4F (TR 412-27), while TOA records dated February 1, 2005 to April 23,
2008 are designated as Exhibit 15F (TR 676-702).
14

fibromyalgia, arthritis in her neck and knees, shoulder pain,
anxiety, and migraine headaches (Exhibits 2F, 3F, and 4F). . . .
...
. . . She reported some improvement of her shoulder pain in June
2007 after receiving an injection (Exhibit 4F/31)8. . . .
. . . On January 9, 2008, she reported less pain when wearing the
CMC splint (Exhibit 15F/8). . . .Orthopedic office note dated
March 27, 2008 indicated that she only reported mild numbness in
her neck region and occasional weakness in her hands (Exhibit
15F/6).
...
. . . Examination of her right shoulder in April 2007 revealed
nearly full passive and active range of motion as well as good
rotator cuff strength and only mild pain in her AC joints and with
supraspinatus testing (Exhibit 4F/11).
She reported some improvement in her right shoulder pain in June
2007 after receiving an injection (Exhibit 4F/31). In October 2007,
she reported less pain in her left hand while wearing her CMC
splint (Exhibit 15F/8). . . . At an orthopedic examination the same
month, she reported only mild numbness in her neck region and
only occasional weakness in her hands (Exhibit 15F/6). . . .
TR 12-14, citing TR 261-93, 294-411, 412-27, 681, 683 (footnote added).
As can be seen, the ALJ considered TOA medical records, and, specifically, Dr. Dyer’s
treatment notes from Plaintiff’s June 4, 2007 visit. TR 12-14, 424. Plaintiff’s contention that the
ALJ considered only the opinions of Dr. Yuill and Dr. Magpantay fails.
Plaintiff also contends that the ALJ failed to consider the medical opinion of Dr. Steven
Larson. Docket No. 13 at 9-12. Specifically, Plaintiff contends that the ALJ should have

8

The ALJ cites Exhibit 4F/31. There is no page 31 within this Exhibit, however. It is
presumed from the context that the ALJ meant to reference page 13 of Exhibit 4F, and that the
notation of page 31 was simply a typographical error. TR 13, 14, 424.
15

considered that, on October 30, 2007, Dr. Larson ordered a brace for Plaintiff’s left wrist, limited
her to lifting no more than 10 pounds, pushing and pulling as tolerated, and avoiding work that
increases her pain. Id., referencing TR 456. Significantly, TR 456 is an excuse from work note
verifying that Plaintiff had a doctor’s appointment on October 30, 2007, and delineating her
work limitations. The note explicitly states that it, “Expires - 8 weeks.” See TR 456.
Dr. Larson practices with American Orthopedics and Sports Medicine, and his treatment
notes are contained in Exhibits 6F. See TR 430-57. The ALJ explicitly discussed evidence
within Exhibits 6F as follows:
MRI of her cervical spine on April 27, 2007 showed a congenital
fusion at C6-7 level and minimal disc bulging at C5-6, which did
not efface the cord or nerve roots (Exhibit 6F/7). . . . She
underwent physical therapy for CMC joint pain (Exhibits 6F/12-16
and 7F/20-39).
...
The claimant has received treatment for her osteoarthritis in her
joints, fibromyalgia, and neck and back pain, but this treatment has
been conservatively [sic] in nature and she has responded well to
the treatment. Objective evidence only revealed minimal disc
bulging in her cervical spine (Exhibit 6F/7) . . .
TR 13, citing TR 436, 441-45, 477-96.
The ALJ’s discussion of evidence within Exhibit 6F demonstrates that he was aware of
Dr. Larson’s treatment notes, as they are contained within that Exhibit; Plaintiff’s contention to
the contrary is unavailing.
Plaintiff next argues that the ALJ did not properly consider the opinion of Dr. Edmundo

16

Magpantay. Docket No. 13 at 9, 11. Specifically, Plaintiff contends that, on April 10, 2008,9 Dr.
Magpantay noted that Plaintiff experienced pain and weakness in her left hand, pain and stiffness
in her head and neck, and an inability to concentrate fully on her work as a result, all of which
the ALJ should have considered. Id., referencing TR 674. Plaintiff also contends that the ALJ
considered only the part of Dr. Magpantay’s opinion that Plaintiff would not be able to perform
her work as a rural mail carrier, and failed to address the expressed limitation that Plaintiff could
not perform repetitive hand motion. Id., at 11. Dr. Magpantay’s treatment notes are contained
within Exhibits 14F and 18F. See TR 667-75, 885-90.
The ALJ addressed Dr. Magpantay’s opinion as follows:
On April 16, 2008, she underwent a Fitness-For-Duty Evaluation
(FFDE). Dr. Magpantay opined that the claimant was unable to
perform repetitive motion due to osteoarthritis; and was unable to
perform the duties of a rural carrier due to Fibromyalgia,
migraines, and anxiety and panic attacks (Exhibit 14F). The
claimant reported on April 28, 2008 that the Lidocaine patches
were helping over her neck and shoulder (Exhibit 28F/15).
...
As for the opinion evidence, both Dr. Magpantay and Dr. Yuill
opined that the claimant was unable to perform her past relevant
work as a rural mail carrier (Exhibits 14F and 19F). The
undersigned concurs with their opinions. However, she is not
precluded from all work. The vocational expert identified a
signification [sic] number of jobs she could perform with her
current residual functional capacity.
TR 13-14, citing TR 667-75, 891-941, 1007.
As an initial matter, the Fitness-For-Duty Evaluation explicitly referenced by the ALJ is

9

Although Plaintiff contends that Dr. Magpantay made these findings on April 10, 2008,
the note on TR 674 is actually dated April 16, 2008, and is the same record discussed by the ALJ
in his opinion. See TR 674.
17

the same record Plaintiff argues the ALJ should have considered. Moreover, contrary to
Plaintiff’s assertion, the ALJ specifically noted that Dr. Magpantay opined that Plaintiff was
unable to perform repetitive motion due to osteoarthritis, and the ALJ noted Plaintiff’s report
that Lidocaine patches were helping. The ALJ properly considered Dr. Magpantay’s FitnessFor-Duty Evaluation and concurred with his assessment. Plaintiff’s argument regarding the
ALJ’s consideration of Dr. Magpantay’s opinion thus fails.
Plaintiff also argues that the ALJ failed to properly consider Dr. Jane Seigel’s opinion
that Plaintiff “could not do any job which would require repetitive or ongoing gripping with that
left thumb.” Docket. No. 13 at 10, referencing TR 676. Dr. Seigel practices with TOA, and her
treatment notes are contained within Exhibit 15F. TR 676-702.
As a preliminary matter, the statement to which Plaintiff refers is not a medical opinion
as defined by 20 C.F.R. § 404.1527(a)(2). See TR 676. Regardless, as has been discussed above
with regard to his consideration of the opinion of Dr. Dyer, the ALJ properly considered the
records from TOA. TR 12-14, citing TR 412-27, 676-702. Plaintiff’s argument about Dr.
Seigel’s statement is unavailing.
Regarding the May 2, 2008 Fitness-For-Duty Evaluation of Dr. Bruce Butler wherein Dr.
Butler opined that “due to the inability to perform repetitive motions with the hands (especially
the left hand) the likelihood of dropping an item due to the inability to grasp or carry is very
likely,” Plaintiff is correct in noting that the ALJ did not directly discuss it. Docket No. 13 at 1011, referencing TR 745. Records from Dr. Butler are contained within Exhibits 17F and 18F.
TR 744-884, 885-890.
Dr. Butler is a non-examining consulting physician who completed a Fitness-For-Duty

18

Evaluation specifically pertaining to Plaintiff’s ability to perform her job as a rural mail carrier.
TR 744-46. Significantly, the ALJ agreed that Plaintiff could not return to her past work as a
rural mail carrier. TR 14. Additionally, Dr. Butler’s evaluation simply summarizes the findings
of Dr. Magpantay’s assessment and treatment notes from other physicians that the ALJ did
discuss. TR 12-14, 667- 75, 744-46. Because the ALJ discussed the evidence considered by Dr.
Butler, and actually concurred that Plaintiff was unable to return to her past work as a rural mail
carrier, the ALJ’s failure to explicitly discuss Dr. Butler’s findings constitutes harmless error;
Plaintiff’s argument on this point fails.
Plaintiff next contends that the ALJ failed to consider Dr. John Yuill’s May 23, 2008
opinion that Plaintiff could not “perform repetitive hand motion required to sort and collect
letters and parcels.” Docket No. 13 at 10-12. Dr. Yuill’s records are contained in Exhibit 19F.
TR 891-941.
Discussing Dr. Yuill’s opinion, the ALJ stated:
A letter dated May 23, 2008 from Dr. Yuill indicated that he
concur [sic] that the claimant had findings of fibromyalgia which
cause diffused muscle pain and left had [sic] osteoarthritis that
impaired her ability to perform repetitive motion. He further stated
that given those impairments, she did not seem capable of
performing all of the duties of a rural carrier as described, more
specifically, he doubted that she could lift 70 pounds or perform
the repetitive hand motion required to sort and collect letters and
parcels (Exhibit 19F).
...
As for the opinion evidence, both Dr. Magpantay and Dr. Yuill
opined that the claimant was unable to perform her past relevant
work as a rural mail carrier (Exhibits 14F and 19F). The
undersigned concurs with their opinions. However, she is not
precluded from all work. The vocational expert identified a
signification [sic] number of jobs she could perform with her
current residual functional capacity.
19

TR 13-14, citing TR 667-75, 891-941.
As discussed above with regard to Drs. Magpantay and Butler, Dr. Yuill’s opinion
addresses Plaintiff’s ability to perform her duties as a rural mail carrier. TR 667-75, 744-46,
891-941. As previously noted, the ALJ actually concurred with Dr. Yuill’s assessment that
Plaintiff was unable to return to her past work as a rural mail carrier. TR 13, 14, citing TR 891941. Additionally, although Plaintiff argues that the ALJ failed to consider Dr. Yuill’s opinion
that Plaintiff could not “perform repetitive hand motion required to sort and collect letters and
parcels,” as can be seen in the quoted passage above, the ALJ explicitly so noted in his
discussion of Dr. Yuill’s opinion. Docket No. 13 at 10, 11; TR 13,14, citing TR 891-941.
Plaintiff’s contention that the ALJ’s consideration of Dr. Yuill’s opinion was narrowly
circumscribed is unavailing.
Plaintiff next maintains that the ALJ failed to consider the Physical Capacities Evaluation
completed by Dr. M. Farooq Ali. Docket No. 13 at 10, 11, citing TR 80-81; see also Docket No.
17 at 5. Plaintiff contends that Dr. Ali limited her “in a number of ways that equated to a finding
of disability,” and specifically agreed that she could not push or pull with her hand, or perform
fine manipulation, including gripping and grasping. Id. Dr. M. Farooq Ali is an attending
physician at Portland Medical Center and Plaintiff’s treating rheumatologist, whose treatment
notes are contained within Exhibits 5F, 9F, 10F, and 28F. TR 428-29, 578-88, 589-613, 9931024.
Plaintiff correctly asserts that the ALJ failed to explicitly mention Dr. Ali’s Physical
Capacities Evaluation of Plaintiff; the ALJ did, however, consider Dr. Ali’s treatment notes,

20

exemplifying that the ALJ was aware of his assessment. TR 13-14. Discussing Dr. Ali’s
records, the ALJ stated:
. . . She was evaluated on August 21, 2007 for polyarthralgias. She
reported generalized aches and pains, feeling of tiredness, fatigue,
unrefreshed sleep with poor sleep hygiene. She had mild
osteoarthritis in her hands but no synovitis, tenderness with
palpitation in the first CMC joint in her left hand, bicipital
tendinitis with positive impingement signs in her right shoulder,
and right subacromina bursa tenderness. She had a full range of
motion in her other joints and some tender areas over the front and
back of her torso. The assessment was localized osteoarthritis and
fibromyalgia. She was advised to do some mild aerobic exercises,
at least two to three times a week (Exhibits 28F/2-3). . . .
...
. . . The claimant reported on April 28, 2008 that the Lidocaine
patches were helping over her neck and shoulder (Exhibit 28F/15).
...
Progress notes dated August 14, 2008 indicated that she had a MRI
of her neck and lumbar spine was [sic] within normal limits. She
had mild osteoarthritis changes in her hands with no synovitis,
tenderness with palpation in the first CMC joint, positive
impingement signs with subacromial bursae [sic] tenderness, but
full range of motion in her other joints. She also had some
tenderness over the areas of the front and back of her torso, paired
trigger points and crepitus in her knees (Exhibit 28F/17). She
reported on February 19, 2009 that the trigger pint [sic] injections
had only a mild effect on her pain but that the Lidocaine patches
were helping over her neck and shoulders (Exhibit 28F/19).
September 21, 2009, it was noted that she had many complaints
due to weather changes. She was also diagnosed with plantar
fasciitis (Exhibit 28F/24).
...
In February 2009, she reported that the Lidocaine patches were
helping with the pain over her neck and shoulders (Exhibit
28F/19).

21

TR 13-14, citing TR 994-95, 1007, 1009, 1011, 1016.
Dr. Ali was Plaintiff’s treating rheumatologist, a fact that would justify the ALJ’s
according great weight to his opinion, as long as that opinion was supported by medically
acceptable clinical and laboratory diagnostic techniques, and consistent with the evidence of
record. In the September 21, 2009 Physical Capacities Evaluation at issue, Dr. Ali opined that
Plaintiff could sit and/or stand/walk for less than 1 hour at a time in an 8-hour day; grasp with
both hands, but not push and pull or do fine manipulation with either hand; could not use feet
and/or legs for repetitive movements; could never lift and/or carry over 20 pounds, rarely lift 1019 pounds, and occasionally lift up to 9 pounds; could rarely bend, squat, and crawl, and
occasionally climb and reach above shoulder; and was severely restricted in activities involving
unprotected heights, being around moving machinery, exposure to marked changes in
temperature and humidity, driving automobile equipment, and being exposed to dust, fumes, and
gases. TR 80-81.
Significantly, Dr. Ali’s September 21, 2009 Physical Capacities Evaluation contradicts
other substantial evidence in the record, including his own treatment notes. 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 of 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).

22

As can be seen in the quoted passages above, the ALJ’s decision demonstrates that he
considered Dr. Ali’s records. TR 13-14. Because Dr. Ali’s September 21, 2009 Physical
Capacities Evaluation contradicts other substantial evidence in the record, including his own
treatment notes, the Regulations do not mandate that the ALJ accord Dr. Ali’s evaluation great
or controlling weight. Accordingly, Plaintiff’s argument fails.
Finally, Plaintiff argues that the ALJ failed to properly consider Dr. Randall Curtis’ April
6, 201110 finding that, due to her fibromyalgia, degenerative disc disease, headaches,
osteoarthritis, and anxiety with panic attacks, Plaintiff was unable to “perform in any gainful
employment position.” Docket No. 13 at 10-12, quoting TR 1093; see also Docket No. 17 at 67. As a preliminary matter, Dr. Curtis’ April 6, 2011 opinion is dated three weeks after the
ALJ’s March 18, 2011 decision was rendered. TR 8-16, 1093. Accordingly, the ALJ could not
have considered it prior to rendering a decision. Significantly, however, Dr. Curtis’ records,
contained in Exhibit 32F, were considered by the Appeals Council as part of the additional
evidence it received and reviewed. TR 4. Even after reviewing Dr. Curtis’ records (along with
the remainder of the additional evidence it received), the Appeals Council found no basis for
disturbing the ALJ’s decision. TR 1-4.
Moreover, Dr. Curtis’ statement, “Mrs. Graves is unable to perform in any gainful
employment position” (TR 1093), is not a medical opinion as defined by 20 C.F.R.
§ 404.1527(a)(2) because it expresses a legal conclusion reserved for the Commissioner. As

10

Although Plaintiff’s supporting Memorandum indicates that Dr. Curtis’ finding was
made on April 6, 2001, that date appears to be a typographical error, as the referenced finding
was actually made on April 6, 2011. See TR 1093.

23

discussed in 20 C.F.R. § 404.1527(e)(3), when physicians render opinions on issues reserved to
the Commissioner, the opinion will not be given “any special significance.” Finally, the ALJ is
not bound by conclusory statements of doctors, particularly where they are unsupported by
objective criteria and documentation. Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001). In the
case at bar, Dr. Curtis’ opinion is not supported by any accompanying treatment or assessment
notes reflecting objective medical evidence. TR 1085-1130.
Because Dr. Curtis’ opinion was rendered after the ALJ’s decision, was considered by
the Appeals Council, was a legal conclusion reserved for the Commissioner, and was
unsupported by treatment notes or other objective medical evidence, Plaintiff’s argument
regarding Dr. Curtis’ opinion fails.
Plaintiff argues that, “[b]ecause the ALJ found that Plaintiff was not disabled, he clearly
rejected in whole or in part the opinions of the eight physicians” discussed above. Docket No.
13 at 11. Plaintiff contends that this must be the case because “every physician of record (other
than the DDS physicians) . . . agreed that Plaintiff is either disabled or functionally disabled (not
able to grasp or use her left thumb repetitively.” Id. As has been discussed above, the issue of
disability is an issue reserved to the Commissioner; accordingly, the ALJ is not bound by a
physician’s finding that Plaintiff is either “disabled” or “functionally disabled.” Plaintiff’s
contention that, “ [b]ecause the ALJ found that Plaintiff was not disabled, he clearly rejected in
whole or in part the opinions of the eight physicians” discussed above is simply an assumption;
and one that, for the reasons discussed above, is unavailing.
For the foregoing reasons, the ALJ has properly considered and weighed the opinion
evidence of record; and has appropriately articulated the reasons for his decision. Plaintiff,

24

therefore, cannot prevail on this statement of error.
2. Plaintiff’s Credibility
Plaintiff contends that in finding that her subjective complaints were not fully credible,
the ALJ did not appropriately address her complaints of pain. Docket No. 13 at 13-17.
Specifically, Plaintiff argues that the ALJ discounted the credibility of her subjective complaints
by claiming generally that there were inconsistencies between Plaintiff’s complaints and the
objective medical evidence. Id. at 15, citing TR 14. Plaintiff takes issue with the fact that the
ALJ failed to explain what those reported inconsistencies were. Id. at 15-17. Plaintiff further
contends that the ALJ failed to consider the nature of fibromyalgia, which waxes and wanes in
severity, and was supported by Plaintiff’s statements. Id., referencing TR 25-38. Plaintiff
additionally contends that Plaintiff’s testimony was corroborated by the “testimony” of
Plaintiff’s supervisor, James Wilson, which the ALJ failed to consider (Id. at 16, citing TR 21012), and by her increasing problems with pain and fatigue that spanned seven years of treatment
and diagnoses (Id. at 16-17, citing TR 249-1130). Plaintiff maintains that her subjective
complaints have remained consistent, and that her seeking treatment from “numerous specialists
in including [sic] [a] rheumatologist, a neurologist and a pain specialist,” as well as “a physical
therapist and a chiropractor” further substantiate her claims. Id.
Defendant responds that the ALJ properly found that Plaintiff’s subjective complaints
were not fully credible. Docket No. 14 at 13-15. Defendant notes that the ALJ supported his
determination by referencing the existence of inconsistencies between Plaintiff’s statements,
Plaintiff’s reported daily activities, and the objective medical evidence. Id. at 13-14. Defendant
highlights several inconsistencies and argues that, given these inconsistencies, the ALJ’s

25

determination was appropriate. Id. at 14. Defendant also notes, “subjective complaints alone
cannot provide a basis for a finding of disability.” Id. Defendant asserts that although Plaintiff
was advised by physicians to stop smoking and to lose weight, Plaintiff failed to follow these
admonitions, and her health continued to deteriorate. Id. at 14-15, citing TR 561-62, 567, 95253, 616-17, 1033, 1047. Defendant argues that Plaintiff’s noncompliance with physicians’
recommendations undermines her credibility. Id. at 15, citing, e.g., Vorholt v. Commissioner, 409
Fed. Appx. 883, 888 (6th Cir. 2011).
Plaintiff replies reemphasizing her original argument that the ALJ failed to consider the
inherent nature of fibromyalgia. Docket No. 17 at 7. Plaintiff maintains that the fact that a
disease is little understood by the medical community does not make the disease less disabling.
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,
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

26

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 ultimately found that Plaintiff’s subjective complaints were
not fully credible, stating:
After careful consideration of the evidence, the undersigned finds
that the claimant’s medically determinable impairment could
reasonably be expected to cause some of the alleged symptoms,
but 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 (SSR 96-7p). The finding of diminished
credibility is supported by inconsistencies between the claimant’s
allegations and the paucity of objective medical evidence.

27

TR 14.
Discussing Plaintiff’s subjective complaints and the treatment related thereto, the ALJ
stated:
The claimant testified that she has fibromyalgia with pain in her
neck, shoulder, knees, feet, back and hands, which was worse with
changes in the weather. She testified she has had shots in her left
thumb as well as therapy, she wears a hand brace, and she had
carpal tunnel syndrome and a cyst on her right hand. She testified
she has migraine, cluster, and tension headaches and has migraine
headaches about three times a week, cluster headaches once or
twice every two weeks, and tension headaches two to three times a
week. She claimant [sic] testified that her headaches are
sometimes triggered by certain smells. She testified that she uses a
TENs unit and pain patch for neck tension. The claimant testified
she had some breathing problems, bronchitis which had pretty
much resolved. She that [sic] she has problems with her feet
(plantar fasciitis), and has worn orthopedic shoes since 2005,
which helps support her feet but does not resolve the swelling and
pain. The claimant testified that she has received treatment for her
shoulders but still has problems with mobility, movement and
stiffness. She testified that she has problems sleeping and feels
groggy, tired, and irritable during the day. She testified she was
depressed due to loss of job.
The claimant testified that she could probably lift or carry a pound,
she drops things constantly, she has problems squatting due to her
hips and knees, she has problems bending, she can sit for 30
minutes, she can stand for five to ten minutes, and she has
difficulty with her right hand and her finger will sometimes lock.
The medical evidence shows that the claimant has a history of
osteoarthritis in her left hand and CMC joint of her left thumb,
fibromyalgia, arthritis in her neck and knees, shoulder pain,
anxiety, and migraine headaches (Exhibits 2F, 3F, and 4F). MRI
of her right shoulder in April 2007, showed no evidence of rotator
cuff tear, tendinopathy within the supraspinatus and infraspinatus,
and AC joint hypertrophic and degenerative changes (Exhibit
3F/51). Examination of her right shoulder on April 11, 2007
revealed nearly full passive and active range of motion as well as
good rotator cuff strength and mild pain at her AC joints and with

28

supraspinatus testing. The assessment was impingement (Exhibit
4F/11).
MRI of her cervical spine on April 27, 2007 showed a congenital
fusion at C6-7 level and minimal disc bulging at C5-6, which did
not efface the cord or nerve roots (Exhibit 6F/7). She reported
some improvement of her shoulder pain in June 2007 after
receiving an injection (Exhibit 4F/31). She was evaluated on
August 21, 2007 for polyarthralgias. She reported generalized
aches and pain, feeling of tiredness, fatigue, unrefreshed sleep with
poor sleep hygiene. She had mild osteoarthritis in her hands but
no synovitis, tenderness with palpitation in the first CMC join in
her left hand, bicipital tendinitis with positive impingement signs
in her right shoulder, and right subacromina bursa tenderness. She
had a full range of motion in her other joints and some tender areas
over the front and back of her torso. The assessment was localized
osteoarthritis and fibromyalgia. She was advised to do some mild
aerobic exercises, at least two to three times a week (Exhibits
28F/2-3). She underwent physical therapy for CMC joint pain
(Exhibits 6F/12-16 and 7F/20-39).
MRI of her left hand on October 16, 2007 showed only mild
trapezium-first metacarpal effusion, and early trapezium-first
metacarpal osteoarthritis (Exhibit 3F/46). On January 9, 2008, she
reported less pain when wearing the CMC splint (Exhibit 15F/8).
She reported on January 30, 2008 that she had left facial and neck
paresthesias, headaches, and neck and back pain. She had
tenderness over her back and shoulders but good movement
(Exhibit 11F/1). At a follow-up visit on March 7, 2008, she
reported that she did not take the Elavil because it was an
antidepressant and she did not like to get Botox injections for her
headaches. She was neurological [sic] intact. It was noted that her
examination was normal except for headaches (Exhibits 13F/1-3).
Orthopedic office note dated March 27, 2008 indicated that she
only reported mild numbness in her neck region and occasional
weakness in her hands (Exhibit 15F/16).
On April 16, 2008, she underwent a Fitness-For-Duty Evaluation
(FFDE). . . . The claimant reported on April 28, 2008 that the
Lidocaine patches were helping over her neck and shoulder
(Exhibit 28F/15).
...

29

Progress notes dated August 14, 2008 indicated that she had a MRI
of her neck and lumbar spine was [sic] within normal limits. She
had mild osteoarthritis changes in her hands with no synovitis,
tenderness with palpation in the first CMC joint, positive
impingement signs with subacromial bursae tenderness, but full
range of motion in her other joints. She also had some tenderness
over the areas of the front and back of her torso, paired trigger
points and crepitus in her knees (Exhibit 28F/17). She reported on
February 19, 2009 that the trigger pint [sic] injections had only a
mild effect on her pain but that the Lidocaine patches were helping
over her neck and shoulders (Exhibit 28F/19). September 21,
2009, it was noted that she had many complaints due to weather
changes. She was also diagnosed with plantar fasciitis (Exhibit
28F/24).
...
The claimant has received treatment for her osteoarthritis in her
joints, fibromyalgia, and neck and back pain, but this treatment has
been conservatively [sic] in nature and she has responded well to
the treatment. Objective evidence only revealed minimal disc
bulging in her cervical spine (Exhibit 6F/7), no evidence of rotator
cuff tear in her right shoulder, but tendinopathy within the
supraspinatus and infraspinatus as well as AC joint hypertrophic
and degenerative changes (Exhibit 3F/51), and mild trapezium-first
metacarpal effusion and early trapezium-first metacarpal
osteoarthritis in her left hand (Exhibit 3F/46). Examination of her
right shoulder in April 2007 revealed nearly full passive and active
range of motion as well as good rotator cuff strength and only mild
pain in her AC joints and with supraspinatus testing (Exhibit
4F/11).
She reported some improvement in her right shoulder pain in June
2007 after receiving an injection (Exhibit 4F/31). In October
2007, she reported less pain in her left hand while wearing her
CMC splint (Exhibit 15F/8). When she was seen on March 7,
2008 for her neurological complaints, she was neurological [sic]
intact. She had normal muscle bulk and normal strength in all
extremities. It was noted that her examination was normal except
for her headaches (Exhibit 13F/1-3). At an orthopedic
examination the same month, she reported only mild numbness in
her neck region and only occasional weakness in her hands

30

(Exhibit 15F/6). In February 2009, she reported that the Lidocaine
patches were helping with the pain over her neck and shoulders
(Exhibit 28F/19).
TR 12-14, citing TR 25-38, 261-93, 299-411, 412-27,11 430-57, 458-650, 614-53, 660-66, 676702, 891-941, 993-1024.
As can be seen, the ALJ’s decision specifically addresses in detail not only the medical
evidence, but also Plaintiff’s testimony and her subjective claims, clearly indicating that these
factors were considered. TR 12-14. Although Plaintiff complains that the ALJ committed
reversible error by not discussing her activities of daily living, interestingly, Plaintiff did not
directly testify to her activities of daily living at her hearing. See TR 22-44. In response to
questions posed both by the ALJ and by her attorney, Plaintiff testified about her medical history
and diagnoses, her pain and associated triggers and limitations, her treatment and pain relief
measures, her medications and their side effects, and her functional limitations, but not
specifically about her activities of daily living. As can be seen in the ALJ’s discussion of the
evidence of record, the ALJ accurately and thoroughly recounted Plaintiff’s testimony. With
regard to Plaintiff’s testimony that she very seldom went out because she did not feel
comfortable in public and that she did not have any social outlets, club memberships or attend
church because she felt “like people are looking at [her]” (TR 37-38), the ALJ considered this
testimony in determining that Plaintiff experienced bipolar disorder, depression, and anxiety;
that Plaintiff’s depression and anxiety were severe impairments; and that Plaintiff’s mental
impairments did not meet or medically equal Listing 12.04 (affective disorders), Listing 12.06

11

As previously noted, the ALJ cites Exhibit 4F/31. Exhibit 4F, however, does not have
31 pages, and given the context, it is likely that the ALJ intended to cite Exhibit 4F/13. TR 14,
424.

31

(anxiety related disorders), or any other Listing. TR 10-11. Additionally, the ALJ considered
this testimony when ultimately finding that Plaintiff was “limited to minimal contact with the
public, co-workers, and supervisors.” TR 11, numbered para. 5. Plaintiff’s contention on this
point fails.
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,
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).
As discussed above, after assessing all the objective medical evidence and Plaintiff’s
testimony and subjective complaints, the ALJ determined that Plaintiff’s subjective complaints
of pain were not fully credible. TR 14. Plaintiff claims that in so doing, the ALJ did not
properly consider the inherent nature of fibromyalgia or the various treatments obtained by
Plaintiff. Docket No. 13 at 15; Docket No. 17 at 7. As has been demonstrated in the quoted

32

passages above, however, the ALJ explicitly found Plaintiff’s fibromyalgia to be a severe
impairment and specifically discussed Plaintiff’s complaints of fibromyalgia and associated pain
and limitations, as well as the objective testing she underwent and the treatment she received
from various sources. TR 10, 12-14.
Additionally, although Plaintiff correctly notes that the ALJ did not specifically discuss
statements made by Plaintiff’s supervisor, James Wilson, Mr. Wilson did not provide
“testimony” as Plaintiff avers, and Mr. Wilson’s statements merely reflect his observations of
Plaintiff’s work as a rural mail carrier. Docket No. 13 at 16, citing TR 210-12. Further, although
Mr. Wilson’s statements are consistent with some of Plaintiff’s allegations, they are not
consistent with the medical evidence of record. TR 12-14, 25-38, 210-12. The ALJ must only
give perceptible weight to statements of a lay witness when they are consistent with medical
evidence. See Lashley v. Secretary of H.H.S., 708 F.2d 1048, 1054 (6th Cir. 1983).
The ALJ observed Plaintiff during her hearing, assessed the medical records, reached a
reasoned decision, and appropriately articulated the basis for his decision; the ALJ’s findings are
supported by substantial evidence and the decision not to accord full credibility to Plaintiff’s
allegations was proper. Therefore, this claim fails.
3. Residual Functional Capacity
Plaintiff maintains that there is “ample evidence in the medical record that Plaintiff is
severely limited in the use of her left thumb resulting in a vocational limitation of no repetitive
or no ongoing gripping.” Docket No. 13 at 12. Plaintiff notes that the opinions of Drs. Seigel,
Butler, Yuill, and Ali support this determination. Id. Plaintiff contends that because the ALJ
failed to consider Plaintiff’s left-thumb repetitive motion limitation, the ALJ’s RFC finding does

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not accurately reflect Plaintiff’s impairments. Id. at 13.
Defendant does not directly respond to Plaintiff’s RFC argument. Docket No. 14.
Defendant does, however, contend that the medical assessments of Drs. Dyer, Larson,
Magpantay, Siegel, Butler, and Yuill are not inconsistent with the ALJ’s findings. Id. at 9-12.
Plaintiff reiterates her RFC argument in her Reply, arguing that the record supports
Plaintiff’s limited use of hands beyond the limitations reflected in the ALJ’s RFC assessment.
Docket No. 17 at 2-7. Regarding Dr. Magpantay’s opinion, Plaintiff contends that the ALJ’s
RFC finding should have included a limitation for Plaintiff occasionally dropping objects
because the ALJ concurred with Dr. Magpantay’s assessment, which so included. Id. at 2.
Discussing statements rendered by Drs. Butler and Yuill, Plaintiff contends that the ALJ’s RFC
assessment did not adequately reflect their determinations regarding Plaintiff’s ability to perform
repetitive hand motions. Id. at 4-5; TR 744, 891.
“Residual Functional Capacity” is defined as the “maximum degree to which the
individual retains the capacity for sustained performance of the physical-mental requirements of
jobs.” 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(c). With regard to the evaluation of physical
abilities in determining a claimant’s RFC, the Regulations state:
When we assess your physical abilities, we first assess the nature
and extent of your physical limitations and then determine your
residual functional capacity for work activity on a regular and
continuing basis. A limited ability to perform certain physical
demands of work activity, such as sitting, standing, walking,
lifting, carrying, pushing, pulling, or other physical functions
(including manipulative or postural functions, such as reaching,
handling, stooping or crouching), may reduce your ability to do
past work and other work.
20 C.F.R. § 404.1545(b).

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As has been discussed in the statements of error above, the ALJ properly considered the
medical and testimonial evidence of record, including the opinions of Drs. Seigel, Butler, Yuill,
Ali, and Magpantay, and Plaintiff’s arguments with regard to the ALJ’s consideration of their
opinions are unavailing. The ALJ, after evaluating all of the objective medical evidence of
record and Plaintiff’s reported level of activity, determined that Plaintiff retained the RFC for
performing sedentary work with numerous additional limitations, including an inability to lift
and carry more than ten pounds and a restriction from performing frequent reaching, handling,
fingering, and feeling.12 TR 11, 15. As can be seen, contrary to Plaintiff’s assertion, her
inability to perform repetitive hand motions is expressly factored in to the ALJ’s RFC
determination when he restricted Plaintiff from performing frequent reaching, handling,
fingering, and feeling.
The ALJ properly considered the evidence of record, and his RFC finding adequately
reflects Plaintiff’s left-hand impairments. TR 11-14. Substantial evidence supports the ALJ’s
Residual Functional Capacity determination; accordingly, the ALJ’s determination stands.
4. Existence of a Significant Number of Jobs
Plaintiff next maintains that the ALJ erred in failing to consider Plaintiff’s left-thumb
repetitive motion limitation in his finding that there were jobs existing in significant numbers
that Plaintiff could perform. Docket No. 13 at 13. Plaintiff cites SSR 83-10 which states, “most
unskilled sedentary jobs require good use of hands and fingers for repetitive hand-finger

12

The limitations stated here are the limitations related specifically to Plaintiff’s left-hand
impairment that are contained in the ALJ’s ultimate RFC finding, quoted supra p. 3, numbered
para. 5.

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actions.” Id., quoting SSR 83-10. Plaintiff continues by discussing the VE’s hearing testimony
and his response to Plaintiff’s attorney’s question pertaining to repetitive motion hand
limitations. Id., citing TR 42. Plaintiff alleges that together, the physicians’ opinions and the
VE’s testimony support a determination that Plaintiff is severely limited regarding repetitive
motion of her left hand and that Plaintiff cannot perform the types of jobs associated with the
ALJ’s RFC determination. Id.
Defendant does not directly respond to Plaintiff’s contention regarding the VE’s
testimony. Docket No. 14. In her Reply, Plaintiff further discusses the VE’s testimony, arguing
that the VE testified that an inability to grip would preclude working in most sedentary jobs, and
that the ALJ’s determination regarding jobs Plaintiff could perform does not adequately reflect
the evidence of record. Docket No. 17 at 3.
As explained above, the Commissioner has the burden at step five of the sequential
evaluation process of establishing the claimant’s ability to work by proving the existence of a
significant number of jobs in the national economy that the claimant could perform, given his or
her age, experience, education, and residual functional capacity. 20 C.F.R. §§ 404.1520,
416.920. See also Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990). The Commissioner’s
burden at step five can be satisfied by relying on the grid rules only if Plaintiff is not
significantly limited by nonexertional impairments, such as mental limitations, manipulative
limitations, or environmental limitations. Abbot v. Sullivan, 905 F.2d 918, 926 (6th Cir. 1990).
In the presence of nonexertional limitations that would preclude the application of the grid
regulations, “expert testimony would be required to satisfy the Secretary’s burden of proof

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regarding the availability of jobs which this particular claimant can exertionally handle.” Kirk v.
Secretary, 667 F.2d 524, 531 (6th Cir. 1983). In other words, the ALJ may rely on the testimony
of a vocational expert in response to a hypothetical question as substantial evidence of the
existence of a significant number of jobs that the claimant is capable of performing as long as the
hypothetical question accurately represents the claimant’s credible limitations. See Varley, 820
F.2d at 779 (quoting O’Banner v. Secretary, 587 F.2d 321, 323 (6th Cir. 1978)).
In the case at bar, as discussed above, the ALJ’s decision specifically addressed
Plaintiff’s limitations, and his RFC determination expressly included restrictions directed at
Plaintiff’s left hand limitations, including restrictions against lifting or carrying more than ten
pounds and restrictions on frequent reaching, handling, fingering, and feeling. TR 11-14. The
ALJ further noted:
If the claimant has the residual functional capacity to perform the
full range of sedentary work, a finding of “not disabled” would be
directed by Medical-Vocational Rule 201.28 and Rule 201.21.
However, the claimant’s ability to perform all or substantially all
of the requirements this level of work has been impeded by
additional limitations. To determine the extent to which these
limitations erode the unskilled sedentary occupational base, the
Administrative Law Judge asked the vocational expert whether
jobs exist in the national economy for an individual with the
claimant’s age, education, work experience, and residual
functional capacity. The vocational expert testified that given all
these factors the individual would be able to perform the
requirements of representative occupations such as a stuffer with
349,000 nationally including 8,610 in the state of Tennessee; as a
[sic] optical lens inserter with 81,000 nationally including 2,500 in
the state of Tennessee; and as a jewelry preparer with 80,000
nationally including 1,160 in the state of Tennessee.
Pursuant to SSR 00-4p, the vocational expert’s testimony is

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consistent with the information contained in the Dictionary of
Occupational Titles.
Based on the testimony of the vocational expert, the undersigned
concludes that, considering the claimant’s age, education, work
experience, and residual functional capacity, the claimant is
capable of making a successful adjustment to other work that
exists in significant numbers in the national economy. A finding
of “not disabled” is therefore appropriate under the framework of
the above-cited rules.
TR 15-16, referencing TR 38-44.
The above quoted passage is consistent with the VE’s testimony. TR 15-16, 38-44. With
regard to the hypothetical posed by the ALJ to the VE, the hearing transcript reads as follows:
Q

Okay. Well, I want you to consider that as past relevant
work. Consider a hypothetical person of the same age and
education as the claimant, and consider a residual
functional capacity for reduced range of sedentary work
with postural limitations precluding all but negligible
climbing, balancing, stooping, kneeling, crouching and
crawling. I’ll define that term negligible as I use it in these
hypotheticals, it’s not an absolute zero or never, but it is
closer to that level than it is to the next level up.
The next level up, occasional is defined as up to
one-third of the day, mid-way between zero and one-third
is one-sixth, so I’m talking about less than one-sixth of the
day. But still, not quite zero, still short of never, as I use
the term. With manipulative limitations, no more than
frequent. That would rule out any constant reaching,
handling, fingering, feeling.

A

Yes, sir.

Q

Environmentally precluded from all but negligible
exposure to the elements of weather, cold, hot, wet, humid
environments, vibration, moving mechanical parts, electric

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shock, hazardous exposed places, radiation, explosives,
fumes, odors, dust, gasses, poor ventilation. Mentally
limited to work involving no more than minimal contact
with public, coworkers, supervisors. With an MRL of
2/2/2 or below, that’s reasoning, math and language at the
2nd level, not the lowest level, the second level.
A

Yes, sir.

Q

And with pedal limitations, use of foot controls, negligible.

A

Yes, sir.

Q

See past work at the medium level would be ruled out by
this sedentary RFC, would it not, Mr. Turner?

A

Yes, sir, it would; as she did not acquire any transferrable
skills to the sedentary range with the limitations you
provided. But I do have a list of other occupations the
hypothetical person can potentially be employed.

Q

Okay. Well, why don’t you give those to me then.

A

Yes sir. One occupation, Your Honor, is called a stuffer.
It’s for packaging as a [INAUDIBLE] machine operator.
You stuff things like games, toys or sports equipment. It is
sedentary, unskilled, SVP-2. The RML is 2/1/1, the DOT
code is 731.685-014. In the state of Tennessee, there are
8,610 employed. And, nationally, 349,000. Also, Your
Honor, an optical lens inserter. A lense inserter is also
sedentary, unskilled occupation, with an SVP of 2. The
RMLs are 1/1/1, the DOT code is 713.687-026. In the state
of Tennessee, there are 2,500 employed. And, nationally,
81,000. Also, Your Honor, a jewelry preparer. A jewelry
preparer namely prepares the jewelry for sale or
distribution or manufacturing. They work in the jewelry,
silverware [INAUDIBLE] industry. It is sedentary,
unskilled, SVP-2. The RMLs are 2/1/1. The DOT code is

39

700.687-062. In the state of Tennessee, there is 1,160
employed. And nationally, 80,000. Those three
occupations, Your Honor, do fit within the limitations you
provided.
TR 38-41.
As noted above, the ALJ’s hypothetical question posed to the VE incorporated Plaintiff’s
age, education, work experience, and expressed nonexertional impairments of postural,
manipulative, environmental, and mental limitations. See TR 38-41. The ALJ’s hypothetical
question, therefore, accurately represented Plaintiff’s limitations.
In making her argument regarding this statement of error, Plaintiff also discusses the
VE’s responses to questions posed by Plaintiff’s attorney, the exchange of which is as follows:
BY THE ATTORNEY:
Q

Would any of the jobs that you’ve named require any type
of repetitive motion of either the dominant or nondominant hand?

A

Well, they are classified reaching, handling and fingering
and feeling as frequent so that’s defined up to 75 percent of
the day, so you would be using your hands quite a bit.

BY THE ADMINISTRATIVE LAW JUDGE:
Q

There are occupations that require even greater use of the
hands then these?

A

Oh, yes, sir. You could have constant. As a matter of fact,
Your Honor, most sedentary, unskilled occupations the
reaching, handling and finger [sic] is constant. So, with the
low RMLs like that, you can get entry-level work or so –
these jobs are a lot easier than the ones that are constant. . .
...

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BY THE ATTORNEY:
Q

So, the jobs you identified would require repetitive or
ongoing gripping with, say, the left thumb?

A

Well, the Dictionary of Occupational Titles does not
manipulatively break it down per finger or actually using –
but you would be using your thumbs. You’re using all
your fingers in both of your hands.

TR 42-43.
Although Plaintiff contends that the VE’s answers to the questions posed by her attorney
demonstrate that she cannot perform the jobs identified by the VE, as can be seen, the VE
clarified that he included “low RMLs” in the jobs he identified as appropriate and that those
would allow for entry-level work, which, although would require use of the fingers in both
hands, Plaintiff could perform given her expressed restrictions. See TR 38-43.
As discussed, the ALJ’s hypothetical question accurately represented Plaintiff’s
exertional and nonexertional limitations. Because the ALJ’s hypothetical question accurately
represented Plaintiff’s limitations, the ALJ properly relied on the VE’s answers to prove the
existence of a significant number of jobs in the national economy that Plaintiff could perform.
See Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994); Hardaway v. Secretary, 823 F.2d 922,
927-928 (6th Cir. 1987); and Varley, 820 F.2d at 779. Accordingly, Plaintiff’s claim fails.
IV. RECOMMENDATION
For the reasons discussed above, the undersigned recommends that Plaintiff’s Motion for
Judgment on the Administrative Record be DENIED, and that the decision of the Commissioner
be AFFIRMED.

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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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