Bishop v. Social Security Administration et al
MEMORANDUM OPINION OF THE COURT. Signed by Magistrate Judge Barbara D. Holmes on 9/7/17. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NANCY A. BERRYHILL
Acting Commissioner of
Social Security 1
Plaintiff filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain
judicial review of the final decision of the Social Security Administration (“Commissioner”)
denying her claim for a period of disability and Disability Insurance Benefits (“DIB”), as
provided under Title II of the Social Security Act (“the Act”). The case is currently pending on
Plaintiff’s motion for judgment on the administrative record (Docket Entry No. 16), 2 to which
Defendant has responded. Docket Entry No. 17. Plaintiff has also filed a subsequent reply to
Defendant’s response. Docket Entry No. 18. This action is before the undersigned for all further
proceedings pursuant to the consent of the parties and order of the District Judge in accordance
with 28 U.S.C. § 636(c) (Docket Entry Nos. 20-21).
Upon review of the administrative record as a whole and consideration of the parties’
filings, Plaintiff’s motion is DENIED and the decision of the Commissioner is AFFIRMED.
Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for
former Acting Commissioner Carolyn W. Colvin as the defendant in this suit.
By order entered January 22, 2014, Plaintiff was allowed thirty (30) days to file a motion for
judgment on the record. Docket Entry No. 15. Plaintiff instead filed only a “brief in support of motion for
judgment on the administrative record” (Docket Entry No. 16), which the Court will treat as both a
motion and memorandum.
Plaintiff filed an application for a period of disability and DIB on September 8, 2010. See
Transcript of the Administrative Record (Docket Entry No. 14) at 54. 3 She alleged a disability
onset date of August 15, 2010. AR 54.4 Plaintiff asserted that she was unable to work due to
heart problems, breathing problems, stomach problems, brain lesion, depression, asthma, ulcer,
migraines, memory loss, and pain on both side of the body. AR 63, 67.
Plaintiff’s applications were denied initially and upon reconsideration AR 54-55.
Pursuant to her request for a hearing before an administrative law judge (“ALJ”), Plaintiff
appeared with counsel and testified at a hearing before ALJ Elizabeth P. Neuhoff on January 15,
2013. AR 29. On March 1, 2013, the ALJ denied the claim. AR 11-13. On July 5, 2013, the
Appeals Council denied Plaintiff’s request for a review of the ALJ’s decision (AR 1-3), thereby
making the ALJ’s decision the final decision of the Commissioner. This civil action was
thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. § 405(g).
II. THE ALJ FINDINGS
The ALJ issued an unfavorable decision on March 1, 2013. AR 11. Based upon the
record, the ALJ made the following enumerated findings:
1. The claimant meets the insured status requirements of the Social Security Act
through December 31, 2015.
The Transcript of the Administrative Record is hereinafter referenced by the abbreviation “AR”
followed by the corresponding page number(s) as numbered in large black print on the bottom right
corner of each page. All other filings are hereinafter referenced by the abbreviation “DE” followed by the
corresponding docket entry number and page number(s) where appropriate.
This was later amended to October 1, 2010. AR 14.
2. The claimant has not engaged in substantial gainful activity since October 1,
2010, the amended alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: asthma, major depressive
disorder, generalized anxiety disorder, and alcohol abuse in current remission (20
4. The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform a full range of work at all
exertional levels but with the following nonexertional limitations: the claimant
can have no work around pulmonary irritants; limited to unskilled work consisting
of simple tasks and instructions; can maintain concentration, persistence and pace
for periods of at least two hours at a time; occasionally engage in contact with the
public; can handle occasional changes in the workplace routine setting or location.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on April 9, 1961 and was 49 years old, which is defined as
a younger individual age 18-49, on the amended alleged disability onset date (20
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 Medical-Vocational 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 regional
and national economy that claimant can perform (20 CFR 404.1569 and
11. The claimant has not been under a disability, as defined in the Social Security
Act, from August 15, 2008, through the date of this decision (20 CFR
III. REVIEW OF THE RECORD
The parties and the ALJ have thoroughly summarized and discussed the medical and
testimonial evidence of the administrative record. Accordingly, the Court will discuss those
matters only to the extent necessary to analyze the parties’ arguments.
IV. DISCUSSION AND CONCLUSIONS OF LAW
A. Standard of Review
The determination of disability under the Act is an administrative decision. The only
questions before this Court upon judicial review are: (i) whether the decision of the
Commissioner is supported by substantial evidence, and (ii) whether the Commissioner made
legal errors in the process of reaching the decision. 42 U.S.C. § 405(g). See Richardson v.
Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971) (adopting and defining
substantial evidence standard in context of Social Security cases); Kyle v. Comm’r of Soc. Sec.,
609 F.3d 847, 854 (6th Cir. 2010). The Commissioner’s decision must be affirmed if it is
supported by substantial evidence, “even if there is substantial evidence in the record that would
have supported an opposite conclusion.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th
Cir. 2009) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)); Jones v. Comm’r of
Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003); Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90
(6th Cir. 1999).
Substantial evidence is defined as “more than a mere scintilla” and “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson,
402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 83 L.
Ed. 126 (1938)); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007); LeMaster v.
Weinberger, 533 F.2d 337, 339 (6th Cir. 1976) (quoting Sixth Circuit opinions adopting
language substantially similar to that in Richardson).
The 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). A
reviewing court may not try the case de novo, resolve conflicts in evidence, or decide questions
of credibility. See, e.g., Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citing Myers v.
Richardson, 471 F.2d 1265, 1268 (6th Cir. 1972)). The Court must accept the ALJ’s explicit
findings and determination unless the record as a whole is without substantial evidence to
support the ALJ’s determination. 42 U.S.C. § 405(g). See, e.g., Houston v. Sec’y of Health &
Human Servs., 736 F.2d 365, 366 (6th Cir. 1984).
B. Determining Disability at the Administrative Level
The claimant has the ultimate burden of establishing an entitlement to benefits by proving
her “inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12 months.”
42 U.S.C. § 432(d)(1)(A). The asserted impairment(s) must be demonstrated by medically
acceptable clinical and laboratory diagnostic techniques. See 42 U.S.C. §§ 432(d)(3) and
1382c(a)(3)(D); 20 C.F.R. §§ 404.1512(a), (c), and 404.1513(d). “Substantial gainful activity”
not only includes previous work performed by the claimant, but also, considering the claimant’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 the
claimant lives, or whether a specific job vacancy exists, or whether the claimant would be hired
if she applied. 42 U.S.C. § 423(d)(2)(A).
In the proceedings before the Social Security Administration, the Commissioner must
employ a five-step, sequential evaluation process in considering the issue of the claimant’s
alleged disability. See Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001); Abbot
v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, the claimant must show that she is not
engaged in “substantial gainful activity” at the time disability benefits are sought. Cruse v.
Comm’r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007); 20 C.F.R. §§ 404.1520(b), 416.920(b).
Second, the claimant must show that she suffers from a severe impairment that meets the
12-month durational requirement. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). See also
Edwards v. Comm’r of Soc. Sec., 113 F. App’x 83, 85 (6th Cir. 2004). Third, if the claimant has
satisfied the first two steps, the claimant is presumed disabled without further inquiry, regardless
of age, education or work experience, if the impairment at issue either appears on the regulatory
list of impairments that are sufficiently severe as to prevent any gainful employment or equals a
listed impairment. Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006); 20 C.F.R.
§§ 404.1520(d), 416.920(d). A claimant is not required to show the existence of a listed
impairment in order to be found disabled, but such showing results in an automatic finding of
disability that ends the inquiry. See Combs, supra; Blankenship v. Bowen, 874 F.2d 1116, 1122
(6th Cir. 1989).
If the claimant’s impairment does not render her presumptively disabled, the fourth step
evaluates the claimant’s residual functional capacity in relationship to her past relevant work.
Combs, supra. “Residual functional capacity” (“RFC”) is defined as “the most [the claimant] can
still do despite [her] limitations.” 20 C.F.R. §§ 404.1545(a)(1). In determining a claimant’s RFC,
for purposes of the analysis required at steps four and five, the ALJ 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), (5)(B); Foster v. Bowen,
853 F.2d 483, 490 (6th Cir. 1988). At the fourth step, the claimant has the burden of proving an
inability to perform past relevant work or proving that a particular past job should not be
considered relevant. Cruse, 502 F.3d at 539; Jones, 336 F.3d at 474. If the claimant cannot
satisfy the burden at the fourth step, disability benefits must be denied because the claimant is
not disabled. Combs, supra.
If a claimant is not presumed disabled but shows that past relevant work cannot be
performed, the burden of production shifts at step five to the Commissioner to show that the
claimant, in light of the claimant’s RFC, age, education, and work experience, can perform other
substantial gainful employment and that such employment exists in significant numbers in the
national economy. Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005)
(quoting Walters v. Comm’r of Soc. Sec., 402 F.3d 525, 529 (6th Cir. 1997)). See also Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). To rebut a prima facie case, the Commissioner must
come forward with proof of the existence of other jobs a claimant can perform. Longworth, 402
F.3d at 595. See also Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 528 (6th Cir. 1981),
cert. denied, 461 U.S. 957, 103 S. Ct. 2428, 77 L. Ed. 2d 1315 (1983) (upholding the validity of
the medical-vocational guidelines grid as a means for the Commissioner of carrying his burden
under appropriate circumstances). Even if the claimant’s impairments prevent the claimant from
doing past relevant work, if other work exists in significant numbers in the national economy that
the claimant can perform, the claimant is not disabled. Rabbers v. Comm’r of Soc. Sec., 582 F.3d
647, 652 (6th Cir. 2009). See also Tyra v. Sec’y of Health & Human Servs., 896 F.2d 1024,
1028-29 (6th Cir. 1990); Farris v. Sec’y of Health & Human Servs., 773 F.2d 85, 88-89 (6th Cir.
1985); Mowery v. Heckler, 771 F.2d 966, 969-70 (6th Cir. 1985).
If the question of disability can be resolved at any point in the sequential evaluation
process, the claim is not reviewed further. 20 C.F.R. § 404.1520(a)(4). See also Higgs v. Bowen,
880 F.2d 860, 863 (6th Cir. 1988) (holding that resolution of a claim at step two of the evaluative
process is appropriate in some circumstances).
C. The ALJ’s Five-Step Evaluation of Plaintiff
In the instant case, the ALJ resolved Plaintiff’s claim at step five of the five-step process.
The ALJ found that Plaintiff met the first two steps, but determined at step three that Plaintiff
was not presumptively disabled because she did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1. At step four, the ALJ found that Plaintiff was unable
to perform past relevant work as a nurse aid due to its requirements of medium exertion and
semi-skilled work. The ALJ found at step five that Plaintiff could find gainful employment as an
assembler, finisher, or hand packager, all of which exist in significant numbers in the regional
and national economy. AR 16-23.
D. Plaintiff’s Assertions of Error
Plaintiff argues that the ALJ erred by (1) improperly evaluating the opinions of two
consultative examiners; (2) improperly evaluating her recurrent diverticulitis; (3) improperly
evaluating her credibility; and (4) failing to comply with SSR 00-4p. DE 16 at 1-2. Plaintiff
therefore requests that this case be reversed and benefits awarded, or, alternatively, remanded
pursuant to sentence four of 42 U.S.C. § 405(g) for further consideration. Id. at 24-25.
Sentence four of 42 U.S.C. § 405(g) states the following:
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
[Commissioner’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 claimant’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). The Court addresses each of Plaintiff’s assertions of error below.
1. The opinions of the consultative examiners.
Plaintiff argues that the ALJ erred by rejecting the opinions of Dr. Lauture Massac and
Dr. Michael Loftin, two psychological consultative examiners who provided the only opinions
from examining sources regarding Plaintiff’s alleged mental impairments, and instead giving
more weight to opinions from non-examining consultants. DE 16 at 12-13. Plaintiff argues that
the ALJ improperly relied on evidence of her minimal activities of daily living to discount
Dr. Massac’s opinion, and improperly discredited Dr. Loftin’s opinion based on Plaintiff’s
subjective complaints instead of clinical findings. DE 16 at 15-16.
Dr. Massac opined that Plaintiff suffered from mild to moderate limitations in short-term
memory capacity, moderate impairment in her ability to sustain concentration, and was in the
low average range of intellectual functioning. AR 268. He also remarked that Plaintiff “shows
evidence of a marked impairment in her social relating.” AR 270. However, Dr. Massac
subsequently completed a medical source statement (“MSS”) regarding Plaintiff’s mental
restrictions in which he opined that none of Plaintiff’s functional capacities were affected by any
mental condition. AR 271-72. Dr. Massac’s sole comment on the MSS noted that Plaintiff
“appears to be impacted by major depressive disorder. She reports sleeping a lot and [being]
unable to do any chores in her house.” AR 272.
In discounting Dr. Massac’s opinion, the ALJ explained that there was no evidence that
Plaintiff suffered any significant social problems, observing that Plaintiff “lives with her
husband, talks to her daughter often, drives, and makes microwavable foods, soups or
sandwiches.” AR 21. Plaintiff argues that these minimal social activities do not disprove that she
suffers from social impairment, an assertion with which the undersigned does not necessarily
disagree. However, Dr. Massac’s general statement that Plaintiff “shows evidence of a marked
impairment in her social relating,” which was based solely on Plaintiff’s description of her
symptoms and not on a review of any medical records, is negated by his subsequent conclusion
that Plaintiff’s impairment does not affect her ability to interact with supervisors, co-workers, or
the public. AR 272. Plaintiff points to no evidence to refute this finding or establish that Plaintiff
suffers from any functional restrictions due to her alleged social impairment. See 20 C.F.R.
§ 404.1520a(c)(2) (“We will rate the degree of your functional limitation based on the extent to
which your impairment(s) interferes with your ability to function independently, appropriately,
effectively, and on a sustained basis.”). Indeed, Dr. Loftin similarly found that Plaintiff suffers
from overwhelmingly mild limitations with respect to her social condition. AR 319.5 Therefore,
to the extent that the ALJ erred by relying in part on minimal daily activities to discount
Dr. Massac’s opinion, such error is harmless.
Dr. Loftin’s report similarly concluded that Plaintiff was in the average range of
intellectual functioning, but additionally found evidence of “marked and severe impairment” in
her short-term memory capabilities, moderate to marked impairment in her ability to sustain
concentration, and mild impairment with respect to social relating and long-term memory
functioning. AR 317. Dr. Loftin completed an MSS that reflected these findings. AR 318-20.
Notably, Dr. Loftin was not provided any medical records to review. AR 308.
The ALJ provided a more detailed explanation for rejecting Dr. Loftin’s assessment,
including Plaintiff’s performance in response to testing:
[D]r. Loftin’s opinion was based on the claimant’s subjective reports and not
objective clinical findings. While the claimant’s test scores on the Wechsler
Memory Scale ... were lower than expected, they fell within the average to low
average range. On mental status examination, the claimant was able to recall all
three named items immediately. In serial 3s, she completed four out of six
iterations successfully. Additionally, the GAF scores of both [Dr. Loftin and
Dr. Massac] are inconsistent with the claimant’s activities of daily living.
Furthermore, it is apparent that the claimant provided conflicting information to
both consultative examiners.
AR 22. Plaintiff disagrees with the ALJ’s characterization of “average” test scores and notes that
“some of the auditory process scores” obtained by Dr. Loftin were lower than average. DE 16 at
16. This does not, however, refute Dr. Loftin’s unequivocal conclusion, based on both his testing
and independent examination, that Plaintiff’s intellectual functioning is within the “average
range.” AR 317-18. Indeed, Dr. Jenaan Khaleeli, a non-examining consultant who reviewed
Specifically, Dr. Loftin found that Plaintiff exhibited “mild” impairment in three out of four
categories of social functioning, and “moderate” impairment in her ability to respond appropriately to
usual work situations and changes in a routine work setting. AR 319.
Plaintiff’s medical records, specifically opined that the average intellectual functioning results
obtained from Dr. Loftin’s testing “do not indicate marked limitations in memory.” AR 340.
Moreover, the ALJ correctly noted that Plaintiff provided inconsistent reports to each of
the consultative examiners. While she advised Dr. Massac in January of 2011 that she drinks six
beers per day (AR 267), she denied any alcohol use during her subsequent visit with Dr. Loftin
just a few months later, going so far as claiming that she had not consumed alcohol since 2000.
AR 309. 6 She also provided considerably different accounts regarding the frequency of alleged
panic attacks to the examiner, ranging from two to three episodes per day (AR 268) to none at
all. AR 310. These are not insignificant discrepancies, especially in light of Dr. Loftin’s
statement that his conclusions were “[b]ased on the claimant’s available history and ...
presentation during [her] psychological evaluation[.]” AR 318. Plaintiff’s alcohol consumption is
especially relevant to Dr. Loftin’s finding that she “showed evidence of marked and severe
impairment in her short-term memory” (AR 317), because, as noted by Dr. Khaleeli, any opinion
regarding memory limitations would be substantially impacted by knowledge of the subject
claimant’s consumption of six alcoholic beverages per day. AR 340.
Plaintiff additionally suggests that the ALJ committed reversible error by assigning little
weight to the opinions of Dr. Massac and Dr. Loftin “in favor of the opinions of sources who
have never examined or even seen [Plaintiff].” DE 16 at 12-13. Plaintiff cites no authority to
support this position, however, and the Court notes that the Sixth Circuit has held that an ALJ
may reasonably accord greater weight to the opinion of a non-examining consultant than one
provided by a treating physician. See Brooks v. Comm'r of Soc. Sec., 531 F. App’x. 636, 642 (6th
The Court also notes that during a separate consultative examination with Dr. Donita Keown the
day before her interview with Dr. Massac, Plaintiff provided yet another account, reporting that she
“occasionally” consumes alcohol. AR 277.
Cir. 2013) (observing that “[i]n appropriate circumstances, opinions from State agency medical
and psychological consultants ... may be entitled to greater weight than the opinions of treating
or examining sources”) (citing SSR 96-6p); see also Benson v. Colvin, No. 7:13-022, 2014 WL
3919577, at *9 (E.D. Ky. Aug. 11, 2014) (“[I]t is not a per se error to give more weight to the
opinion of a non-examining physician than that given to an examining or treating physician’s
opinion.”). Plaintiff’s argument in this regard is thus unavailing.
In evaluating the opinions of non-treating medical sources, the ALJ is required to
consider several factors, including the supportability and consistency of the opinions. See
20 C.F.R. § 404.1527(c). The ALJ determined that the opinions of Drs. Massac and Loftin were
not supported by the evidence of record, and concluded that Dr. Loftin’s opinion was
inconsistent with his own testing. AR 21-22. The ALJ additionally discounted these opinions
based on the extremely contradictory reports Plaintiff provided to each examiner, which was
appropriate. See C.F.R. § 404.1527(c)(6) (“When we consider how much weight to give to a
medical opinion, we will also consider any factors you or others bring to our attention, or of
which we are aware, which tend to support or contradict the opinion.”). Accordingly, the Court
finds that substantial evidence supports the ALJ’s conclusions regarding these opinions.
2. Evidence of diverticulitis.
Plaintiff argues that the ALJ failed to discuss the evidence of her hospitalization due to
diverticulitis, and claims that the ALJ erred in finding that the effect of this condition on her
ability is minimal. DE 16 at 19-20. Plaintiff’s argument is unpersuasive.
Plaintiff notes that she has been hospitalized multiple times for diverticulitis, yet fails to
provide any evidence that this condition is disabling. See Krakow v. Comm’r of Soc. Sec.,
No. 13-14388, 2015 WL 1301300, at *10 (E.D. Mich. Mar. 23, 2015) (“[S]imply because
plaintiff suffers from certain conditions or carries certain diagnoses does not equate to
disability[.]”). This is critical, as it is Plaintiff’s burden to “prove the existence and severity of
limitations caused by her impairment[.]” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th
Cir. 2003) (emphasis added). For example, Plaintiff points to her treatment at Horizon Medical
Center in October of 2010 to support her argument, but her discharge note indicates that this
acute episode was resolved with antibiotics and that she was “feeling significantly better ... and
stable to be discharged home.” AR 424. Plaintiff experienced an additional acute episode in
November of 2011, which was again resolved with antibiotics. AR 541. Plaintiff was discharged
from the hospital two days later following “marked improvement in her symptoms.” AR 541.
Plaintiff also cites a CT scan performed in June of 2012, yet the findings of this study
actually revealed improvement in Plaintiff’s condition, with a “mild degree of recurrent
diverticulitis in this same sigmoid segment without complicating factors.” AR 575. Plaintiff
again experienced acute diverticulitis episodes in October, November, and December of 2012,
but such episodes were treated with antibiotics and a recommended dietary change. AR 532, 620.
A CT scan from October of 2012 demonstrated “absolute complete resolution of diverticulitis”
(AR 488), which further undermines Plaintiff’s claim that her condition is disabling.
It is undisputed that Plaintiff suffers from diverticulitis, yet notwithstanding Plaintiff’s
contention otherwise, the mere diagnosis of a condition “says nothing about the severity of the
condition.” Higgs, 880 F.2d at 863. Plaintiff faults the ALJ for failing to include any limitations
in the RFC pertaining to diverticulitis, but fails to identify an opinion indicating that diverticulitis
causes any functional limitations. She instead asks the Court to reverse the Commissioner’s
decision based on the ALJ’s refusal to approximate the severity of this condition, which the
Court declines to do. See Finch v. Comm’r of Soc. Sec., No. 07-13796, 2008 WL 4449857, at *1
(E.D. Mich. Sept. 30, 2008) (holding that the Court will not entertain a claimant’s invitation to
speculate regarding the severity of a diagnosis); see also Flowers v. Comm’r of Soc. Sec.,
No. 14-12449, 2015 WL 4274961, at *4 (E.D. Mich. July 14, 2015) (declining to speculate as to
the possible limitations related to a claimant’s neck condition). The ALJ provided an adequate
discussion in determining that Plaintiff’s diverticulitis does not represent a severe impairment,
with references to both objective medical findings and the opinion of a consultative examiner.
AR 16-17. The Court therefore finds that substantial evidence supports this determination.
3. Credibility determination.
Plaintiff argues that the ALJ erred by discounting Plaintiff’s credibility based on her
receipt of unemployment insurance benefits since her receipt of such benefits was due to
financial strain and not reflective of her ability to work. DE 16 at 21-22. Plaintiff also cites a
memorandum purportedly from Chief Administrative Law Judge Frank A. Cristaudo noting that
a claimant “can qualify for Social Security disability benefits even though he or she remains
capable of performing some work.” Id. at 21. 7
Plaintiff’s argument is misplaced for multiple reasons. First, it is well-established that
applications for unemployment and disability benefits are “inherently inconsistent” because
“[t]here is no reasonable explanation for how a person can claim disability benefits under the
guise of being unable to work, and yet file an application for unemployment benefits claiming
that [she] is ready and willing to work.” Workman v. Comm’r of Soc. Sec., 105 F. App’x 794,
801-02 (6th Cir. 2004) (internal citation and quotations omitted); see also Villarreal v. Comm’r
of Soc. Sec., No. 2:13- 15197, 2014 WL 6750327, at *7 (E.D. Mich. Nov. 30, 2014) (“[The
The Court is unable to examine the actual document because Plaintiff fails to provide a valid
citation to the alleged memorandum.
claimant] applied for both jobs and unemployment benefits after his alleged onset date—
representing that he was ready, willing, and able to work—which is obviously not consistent
with his allegations of disabling pain.”); Siler v. Astrue, No. 11-391, 2012 WL 2603656, at *13
(E.D. Ky. July 5, 2012) (“When a claimant files for unemployment, [she] is stating that [she] is
ready, willing and able to work ... Yet, when a claimant files for disability benefits, [she] is
stating that [she] is unable to work[.]”) (internal citations omitted). Plaintiff cites nothing that
supersedes such judicial precedent.
Additionally, the ALJ did not, as Plaintiff suggests, discount her credibility based on her
receipt of unemployment benefits. The ALJ instead properly considered such evidence as part of
his overall analysis:
The claimant filed for and received unemployment benefits from the [first]
quarter of 2011 through the [second] quarter of 2012. The claimant testified that
she looked for work during this time, and she further admitted that she would
have worked if she were offered a job. While this fact alone is not enough to
refute a claim of disability, it does tend to demonstrate that the claimant believed
that she was capable of working, which is more than would be expected of a
person alleging disabling functional limitations.
AR 20-21 (emphasis added). Plaintiff’s attempt to mischaracterize the emphasis that the ALJ
placed on her receipt of unemployment benefits is therefore rejected.
Finally, the ALJ provided a detail explanation of the additional reasons for discounting
Plaintiff’s credibility, which included conflicting statements to the consultative examiners
regarding her daily activities, the frequency of alleged panic attacks, and the amount of alcohol
she consumes on a daily basis. AR 21. As previously discussed, Plaintiff informed Dr. Loftin
that she had not consumed alcohol in over a decade (AR 309), but told Dr. Massac just months
earlier that she consumed six beers per day. AR 267. Plaintiff also advised Dr. Massac that she
received food stamps (AR 267), but denied receiving such benefits during her hearing before the
ALJ. AR 42-43. The ALJ thus clearly provided sufficient support for his determination.
The Sixth Circuit has held that an ALJ’s credibility determination is “virtually
unchallengeable.” Ritchie v. Comm’r of Soc. Sec., 540 F. App’x 508, 511 (6th Cir. 2013)
(internal citation and quotations omitted). As long as the determination is supported by
substantial evidence, it must be “accorded great weight and deference, particularly since an ALJ
is charged with the duty of observing a witness’s demeanor and credibility.” Calvin v. Comm’r of
Soc. Sec., 437 F. App’x 370, 371 (6th Cir. 2011) (citing Walters v. Comm’r of Soc. Sec., 127
F.3d 525, 531 (6th Cir. 1997)). Substantial evidence supports the ALJ’s determination of
Plaintiff’s credibility in the instant case, and it is therefore affirmed.
4. Vocational expert testimony.
Plaintiff finally argues that the ALJ erroneously adopted testimony from the vocational
expert (“VE”) that conflicted with the Dictionary of Occupational Titles (“DOT”). DE 16 at 2223. Specifically, Plaintiff claims that all of the jobs offered by the VE as viable options for
employment involved a “reasoning level” of two, while Plaintiff’s RFC reflects a “reasoning
level” of only one. Id. Plaintiff also argues that there is a conflict between the VE’s testimony
and the DOT, and that the ALJ violated SSR 00-4p by failing to procure an explanation from the
VE for this discrepancy. Id. at 24.
Plaintiff’s argument involves the nonexertional limitation contained in the assigned RFC
that restricts Plaintiff to “unskilled work consisting of simple tasks and instructions.” AR 18.
During the hearing, the ALJ posed a hypothetical to the VE that included this limitation, to
which the VE replied that Plaintiff would be able to perform multiple jobs despite this restriction,
including “assembler, small products,” “finisher,” and “packager, hand.” AR 47-48. However,
each of these positions entails a reasoning level of two, which is defined in the DOT as an ability
to “[a]pply commonsense understanding to carry out detailed but uninvolved written or oral
instructions” and “[d]eal with problems involving a few concrete variables in or from
standardized situations.” DE 16 at 23. Therefore, Plaintiff argues, the level two reasoning
requirements preclude work due to her restriction to simple tasks and instructions. Id.
The Court agrees that the “reasoning level” requirements of the three jobs identified by
the VE technically exceed Plaintiff’s RFC. However, based on relevant case law, the Court finds
that any error committed by the ALJ in this regard is harmless. In response to an identical
argument, the Sixth Circuit noted that there is “no authority for the proposition that jobs
requiring reasoning levels two or three are inconsistent as a matter of law with a limitation to
simple work.” Monateri v. Comm’r of Soc. Sec., 436 F. App’x 434, 446 (6th Cir. 2011) (internal
quotations omitted). In that case, the Sixth Circuit rejected the subject claimant’s argument by
explaining that although the Commissioner relies on information available from the DOT in
making a determination as to disability, the regulations “do not obligate [the ALJ and consulting
vocational experts] to rely on the [DOT’s] classifications,” thus there is “no precedent that
requires the Commissioner to align DOT ‘reasoning levels’ with RFC classifications.” Id. Such
reasoning was affirmed in a subsequent decision, in which the Sixth Circuit held that a
discrepancy between a limitation requiring only simple tasks and the DOT reasoning levels “is
not the type of actual or apparent conflict that necessitates a resolution under SSR 00-4p.”
Winslow v. Comm’r of Soc. Sec., 566 F. App’x 418, 420 (6th Cir. 2014).
Here, Plaintiff does not claim that she would be unable to perform the jobs identified by
the VE, but instead argues for reversal of the Commissioner’s decision based on an alleged
violation of SSR 00-4p. However, the ALJ asked the VE if his testimony was consistent with the
DOT (AR 49), thus fulfilling her obligation to inquire about any inconsistencies under SSR 004p. See Johnson v. Comm’r of Soc. Sec., 535 F. App’x 498, 508 (6th Cir. 2013) (the ALJ’s duty
under SSR 00-4p “is satisfied if he or she asks the VE whether his or her testimony is consistent
with the DOT”) (citing Martin v. Comm’r of Soc. Sec., 170 F. App’x 369, 374 (6th Cir. 2006)).
Counsel for Plaintiff did not question the VE regarding any inconsistencies between the VE’s
testimony and the DOT during the hearing, and the ALJ was under no additional obligation to
identify such inconsistencies. See id. (“The ALJ is not required to affirmatively conduct an
independent investigation into the testimony of witnesses to determine if they are correct.”)
(internal quotations omitted). Therefore, to the extent that the ALJ violated SSR 00-4p, the Court
finds that such error is harmless.
For the above stated reasons, Plaintiff’s motion for judgment on the administrative record
(DE 16) 8 is DENIED. An appropriate Order will accompany this memorandum.
BARBARA D. HOLMES
United States Magistrate Judge
See n.2, supra.
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