Staples v. Social Security Administration
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 Jeffery S. Frensley on 1/23/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
CAROLYN W. COLVIN,
Acting Commissioner of Social Security, )
Case No. 3:13-cv-01031
REPORT AND RECOMMENDATION
This is a civil action filed pursuant to 42 U.S.C. § 405(g), to obtain judicial review of the
final decision of the Commissioner of Social Security denying Plaintiff Supplemental Security
Insurance (“SSI”), as provided under Title XVI of the Social Security Act (“the Act”), as
amended. The case is currently pending on Plaintiff’s Motion for Judgment on the
Administrative Record. Docket No. 20. Plaintiff has filed an accompanying Memorandum in
Support of her Motion. Docket No. 21. Defendant has filed a Response, arguing that the
decision of the Commissioner was supported by substantial evidence and should be affirmed.
Docket No. 22.
For the reasons stated below, the undersigned recommends that Plaintiff’s Motion for
Judgment on the Administrative Record be DENIED, and that the decision of the Commissioner
Plaintiff filed her application for Supplemental Security Income (“SSI”) on June 10,
2010, with a protective filing date of April 18, 2010, alleging that she had been disabled since
January 10, 1990, due to back and neck problems, colon problems, seizure disorder, high blood
pressure, and mental problems.1 See, e.g., Docket No. 12, Attachment (“TR”), p. 67, 77, 142.
Plaintiff’s application was denied both initially (TR 66-67) and upon reconsideration (TR 68).
Plaintiff subsequently requested (TR 86-88) and received (TR 30-65) a hearing. Plaintiff’s
hearing was conducted on April 13, 2012, by Administrative Law Judge (“ALJ”) Brian
Dougherty. TR 30. Plaintiff and Vocational Expert, Michelle McBroom-Weiss, appeared and
On May 21, 2012, 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 10-29.
Specifically, the ALJ made the following findings of fact:
The claimant has not engaged in substantial gainful activity
since April 18, 2010, the application date (20 CFR 416.971
The claimant has the following severe impairments:
lumbago; degenerative disc disease of the lumbar spine;
insomnia; joint pain of the leg; hypertension; seizure
disorder; headaches; reflux; cognitive disorder; major
depressive disorder; bipolar; anxiety; adjustment disorder
with anxiety; and depressed mood (20 CFR 416.920(c)).
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 416.920(d), 416.925 and
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in 20
Plaintiff also previously filed an application for SSI on January 26, 2006, which was
denied. TR 66.
CFR 416.967(b) except the claimant must avoid exposure
to hazards. The claimant is further able to understand,
remember and carry out simple instructions and is able to
adapt to gradual and infrequent changes in the workplace.
The claimant is capable of performing past relevant work as
a gluer. This work does not require the performance of
work-related activities precluded by the claimant’s residual
functional capacity (20 CFR 416.965).
The claimant has not been under a disability, as defined in
the Social Security Act, since April 18, 2010, the date the
application was filed (20 CFR 416.920(f)).
On May 30, 2012, Plaintiff timely filed a request for review of the hearing decision. TR
8. On July 24, 2013, the Appeals Council issued a letter declining to review the case (TR 1-6),
thereby rendering the decision of the ALJ the final decision of the Commissioner. This civil
action was thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. § 405(g). If the
Commissioner’s findings are supported by substantial evidence, based upon the record as a
whole, then these findings are conclusive. Id.
II. REVIEW OF THE RECORD
The parties and the ALJ have thoroughly summarized and discussed the medical and
testimonial evidence of Record. Accordingly, the Court will discuss those matters only to the
extent necessary to analyze the parties’ arguments.
III. CONCLUSIONS OF LAW
A. Standard of Review
This Court’s review of the Commissioner’s decision is limited to the record made in the
administrative hearing process. Jones v. Sec’y of Health & Human Servs., 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. Sec’y of Health & Human
Servs., 803 F.2d 211, 213 (6th Cir. 1986).
“Substantial evidence” means “such relevant evidence as a reasonable mind might accept
as adequate to support the conclusion.” Her v. Comm’r of Soc. Sec., 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. Comm’r of Soc. Sec., 105 F.3d 244, 245 (6th Cir. 1996), citing Consol. Edison Co. v.
N.L.R.B., 305 U.S. 197, 229 (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 ALJ 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). If the
Commissioner did not consider the record as a whole, however, the Commissioner’s conclusion
is undermined. Hurst v. Sec’y of Health & Human Servs., 753 F.2d 517, 519 (6th Cir. 1985),
citing Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980).
In reviewing the decisions of the Commissioner, courts look to four types of evidence:
(1) objective medical findings regarding Plaintiff’s condition; (2) diagnoses 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 summarized as follows:
(1) If the claimant is working and the work constitutes substantial
gainful activity, benefits are automatically denied.
(2) If the claimant is not found to have an impairment which
significantly limits his or her ability to work (a “severe”
impairment), then he or she is not disabled.
(3) If the claimant is not working and has a severe impairment, it
must be determined whether he or she suffers from one of the
“listed” impairments2 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
The Listing of Impairments is found at 20 CFR § 404, Subpt. P, App. 1.
that prevents him or her from returning to such past relevant work,
the claimant establishes a prima facie case of disability.
(5) The burden then 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
See, e.g., 20 CFR §§ 404.1520, 416.920. See also Moon v. Sullivan, 923 F.2d 1175, 1181 (6th
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. Moon,
923 F.2d at 1181; 20 CFR § 404, Subpt. P, App. 2, Rule 200.00(e)(1), (2). See also Damron v.
Sec’y of Health & Human Servs., 778 F.2d 279, 281-82 (6th Cir. 1985). 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. Sec’y of Health & Human
Servs., 820 F.2d 777, 779 (6th Cir. 1987).
In determining residual functional capacity for purposes of the analysis required at stages
four and five above, the Commissioner is required to consider the combined effect of all the
claimant’s impairments: mental and physical, exertional and nonexertional, severe and
nonsevere. See 42 U.S.C. § 423(d)(2)(B).
C. Plaintiff’s Statement Of Errors
Plaintiff contends that the ALJ erred by: (1) improperly rejecting the medical opinions of
Plaintiff’s treating nurse practitioner, Ms. Vicki L. Mitchell, and consultative examiner, Dr. Terry
Edwards; (2) improperly assessing Plaintiff’s credibility, by not basing his decision on
substantial evidence, by using boilerplate language in violation of 96-7p, by citing Plaintiff’s
drug-seeking behavior and travel with her boyfriend, and by failing to consider whether
Plaintiff’s failure to obtain mental health treatment was due to her inability to afford care;
(3) failing to incorporate all of Plaintiff’s impairments in his Residual Functional Capacity
determination; (4) relying on VE testimony that was based on inadequate hypothetical questions
that did not contain all of Plaintiff’s limitations, and failing to ask the VE whether her testimony
was consistent with the DOT; (5) improperly determining that Plaintiff could perform past
relevant work, as Plaintiff’s past work as a gluer was not substantial gainful activity, as well as
finding that Plaintiff can perform other work. Docket No. 21. 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. Sec’y of Health & Human
Servs., 17 F.3d 171, 176 (6th Cir. 1994). See also Newkirk v. Shalala, 25 F.3d 316, 318 (6th Cir.
1. Weight Accorded to the Medical Opinion Evidence
Plaintiff argues that the ALJ improperly rejected the medical opinions of her treating
nurse practitioner, Vicki L. Mitchell, F.N.P, and consultative examiner, Terry Edwards, Ed.D.
Docket No. 21, p. 48-52. With regard to Ms. Mitchell, Plaintiff contends that the ALJ’s rejection
of her opinion is in violation of applicable regulations and rulings and is not supported by the
record. Id. at 48. While acknowledging that Ms. Mitchell is not an acceptable medical source,
Plaintiff argues that she is an “other source,” as defined by SSR 06-3p, which instructs that such
opinions are important and must be considered. Id., citing SSR 06-3p. Plaintiff further argues
that an evaluation of Ms. Mitchell’s opinion, using the factors provided by SSR 06-3p that are to
be considered when evaluating assessments from both acceptable and other sources, would result
in Ms. Mitchell’s opinion being given great weight. Id. at 48-49. Plaintiff maintains that Ms.
Mitchell’s opinion is also consistent with Plaintiff’s treatment records, and “is in fact the only
physical assessment in the file, save those of the two DDS non-examining consultants . . . .” Id.
at 49. In addition, Plaintiff contends that the ALJ’s reasons for rejecting Ms. Mitchell’s opinion
were improper – namely, that the ALJ cherry-picked Ms. Mitchell’s notes without providing
necessary context, put on “his doctor’s hat” to offer a medical opinion, and attempted to discredit
Ms. Mitchell by claiming that she over-exaggerated Plaintiff’s limitations in her opinion “‘in a
good-intentioned effort to assist [Plaintiff] with obtaining disability benefits.’” Id. at 50-51,
citing TR 21.
Defendant responds that under the Regulations, Ms. Mitchell is not an acceptable medical
source and as such, she is prohibited from providing medical opinions, and can only provide “an
opinion regarding her observations about plaintiff’s functional limitations as a result of an
impairment diagnosed by an acceptable medical source.” Docket No. 22, p. 19-20, citing 20
CFR § 416.913(a), 20 CFR § 416.913(d), 20 CFR § 416.927(a)(2) (emphasis in original).
Defendant argues that the ALJ properly accorded Ms. Mitchell’s opinion only little weight
because it was based primarily on Plaintiff’s own representations regarding Plaintiff’s symptoms,
which the ALJ found to be not fully credible, and because it is not supported by Plaintiff’s
treatment records, including Ms. Mitchell’s own records. Id. at 20.
With regard to Dr. Edwards, Plaintiff argues that although the ALJ claimed that he was
according considerable weight to Dr. Edwards’s opinion, he did not incorporate that opinion into
Plaintiff’s RFC, leading to an erroneous finding that Plaintiff is not disabled. Docket No. 21, p.
51-52. Specifically, Plaintiff contends that “the VE testified that the limitations noted by Dr.
Edwards (specifically the ‘moderate to marked’ impairment in focus and concentration) would
preclude performance of Ms. Staples’ past work as well as all of the other jobs the VE had
identified.” Id. at 51. Plaintiff further contends that the ALJ’s explanation for how he resolved
the contrast between Dr. Edwards’s opinion and the RFC ultimately determined for Plaintiff is
insufficient: “As one can see, the ALJ’s solution is to ‘interpret’ the impairment in focus and
concentration out of existence, a fancy trick if ever there was one!” Id. at 52, citing TR 22.
Defendant responds that, despite according considerable weight to Dr. Edwards’s
opinion, “the ALJ was not constrained to give it controlling weight and to incorporate those parts
of Dr. Edward’s [sic] opinion the ALJ disagreed with.” Docket No. 22, p. 16. Additionally,
Defendant contends that the ALJ was not required to adopt Dr. Edwards’s opinion regarding
Plaintiff’s inability to travel independently due to seizures. Id. at 17.
With regard to the evaluation of medical evidence, the Code of Federal Regulations
Regardless of its source, we will evaluate every medical opinion
we receive. Unless we give a treating source’s opinion controlling
weight under paragraph (c)(2) of this section, we consider all of the
following factors in deciding the weight we give to any medical
(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 (c)(2)(i) and (c)(2)(ii) of this section, as well as the
factors in paragraphs (c)(3) through (c)(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
(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
20 CFR § 416.927(c) (emphasis added). See also 20 CFR § 404.1527(c).
The ALJ must articulate the reasons underlying his decision to give a medical opinion a
specific amount of weight.3 See, e.g., 20 CFR § 404.1527(d); Allen v. Comm’r of Soc. Sec., 561
F.3d 646 (6th Cir. 2009); Wilson v. Comm’r of Soc. Sec., 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 medical record contains treatment notes from Ms. Mitchell, F.N.P., of Self-Centered
Primary Care and Weight Loss. TR 620-28, 714-29.
The Regulations provide that the ALJ may properly:
[U]se evidence from other sources to show the severity of your
impairment(s) and how it affects your ability to work. Other
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 CFR § 1527(d), by analyzing the physician’s contradictory opinions or by analyzing other
opinions of record. See, e.g., Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551 (6th Cir.
2010); Nelson v. Comm’r of Soc. Sec., 195 F. App’x 462, 470-72 (6th Cir. 2006); Hall v. Comm’r
of Soc. Sec., 148 F. App’x 456, 464 (6th Cir. 2006).
sources include, but are not limited to (1) Medical Sources not listed in paragraph (a) of this
section (for example, nurse-practitioners, physicians’ assistants,
naturopaths, chiropractors, audiologists, and therapists).
20 CFR § 404.1513(d) (emphasis added).
The ALJ discussed Ms. Mitchell’s opinion evidence as follows:
The claimant’s primary care provider is nurse practitioner Vicki L.
Mitchell, who began treating the claimant in October 2011. Ms.
Mitchell has treated the claimant for back pain, hip pain,
hypertension, and depression. In April 2012, Ms. Mitchell
completed another [sic] source statement in which she opined the
claimant is able to sit for one hour, stand/walk for 15-20 minutes,
and must lie down and elevate her legs four hours in an eight-hour
work day. Ms. Mitchell opined the claimant could lift five pounds
up to one hour a day, and more than five pounds less than one hour
a day. Ms. Mitchell opined the claimant could never stoop, kneel
or crouch, and would miss more than four days a month due to her
impairments. Ms. Mitchell stated the claimant suffered from
severe depression, anxiety, back pain with radiation, degenerative
disk disease, uncontrolled hypertension, seizure disorder, and
insomnia. (Exhibit 27F) From a mental standpoint, Ms. Mitchell
opined that the claimant is not capable of remembering work like
procedures; maintaining attention for two hours; maintaining
regular attendance; sustaining an ordinary routine without special
supervision; working in close proximity to others without unduly
distraction [sic]; complete a normal workday without interruption
from psychologically based symptoms; perform at a consistent
pace; accept instructions and respond appropriately to criticism
from supervisors; get along with co-workers, respond to change; be
aware of hazards; understand; remember and carry out detailed
instructions; interact with the public; set realistic goals; maintain
socially appropriate behavior; travel to unfamiliar places; and use
public transportation due to her anxiety and depression.
Despite these disabling impairments, there is no record that Ms.
Mitchell has referred the claimant to a specialist to evaluate her
orthopedic difficulties. In addition, despite Ms. Mitchell’s
recommendations, the claimant has not pursued formal therapy for
her depression and anxiety. Although Ms. Mitchell states the
claimant’s hypertension is uncontrolled, Dr. Sukulovski noted the
claimant’s blood pressure to be 125/85 in January 2011. (Exhibit
Ms. Bryant’s opinion is inconsistent with the objective medical
evidence, including the treatment notes, which indicate that the
claimant’s depression, hip pain and low back pain only moderately
limit her activities; that medication is relieving most of her pain;
and that the severity of her pain is moderate 3/10 after medication.4
26F, pgs 1, 3. Further, the course of treatment pursued by the
nurse practitioner has not been consistent with what one would
expect if the claimant were truly limited to the very significant
extent that the nurse practitioner has listed in the other source
It is not uncommon for a treating medical professional to complete
medical source statement forms that over-exaggerate a claimant’s
limitations in a good-intentioned effort to assist the claimant with
obtaining disability benefits. Unfortunately, when the treatment
records do not support the extremely severe degree of those
limitations as listed on the completed form, it is difficult to give
much weight to the opinion. This appears to be the case with Ms.
Mitchell’s other source statements. In addition, there is the issue
with the claimant’s underlying credibility with regard to her
representation of her symptoms. She has documented drug-seeking
behavior. In addition, she has not followed Ms. Mitchell’s
recommendation to seek mental health therapy. These facts detract
from her overall credibility. Ms. Mitchell’s opinions with regard to
the claimant’s physical and mental limitations are based primarily
on the claimant’s representations concerning her symptoms. As a
result of the underlying credibility issues with regard to such
representations, Ms. Mitchell’s opinion is given little weight.
Pursuant to Social Security Ruling 96-6p and 20 C.F.R. §§
404.1527(f) and 416.927(f), the undersigned has considered the
findings of fact made by state agency medical consultants and other
program physicians regarding the nature and severity of the
Although the ALJ refers to “Ms. Bryant,” it appears from the context that he means to
refer to Ms. Mitchell, Plaintiff’s nurse practitioner. As far as the undersigned can determine,
there is no “Ms. Bryant” associated with this matter.
claimant’s physical impairment. Little weight is accorded to the
claimant’s primary care provider Ms. Vicki Mitchell, as the severe
limitations opined by Ms. Mitchell in her medical source statement
dated April 12, 2012 are inconsistent with the other medical
evidence of record and Ms. Mitchell’s treatment plan and treatment
notes. In addition, the opinion is given less weight inasmuch as the
it [sic] is based primarily on the claimant’s non-credible
representations concerning her symptoms, and the other evidence
of record supports the finding that the claimant operates at much
higher functional level than opined by Ms. Mitchell. (Exhibit 27F)
Significant weight is accorded to the observations and diagnoses of
examining physician Dr. Bill Sekulovski and consultative
examiner Dr. Bruce Davis as these opinions are consistent with
each other, the objective medical evidence and the claimant’s lack
of treatment. (Exhibit 14F and Exhibit 21F) The above stated
opinions of Dr. Dr. [sic] Terry Edwards have been given
considerable weight and incorporated into the residual functional
capacity, along with the mental health treatment notes of the
claimant’s treating psychiatrist Dr. Narciso Gaboy. (Exhibit 13F
and Exhibit 20F)
TR 20-22, citing TR 462-66, 467-68, 494-591, 592-97, 714-22, 723-29.
Although Plaintiff asserts that the ALJ did not comply with the requirements listed in
SSR 06-3p, it is clear from the above discussion that the ALJ fully evaluated Ms. Mitchell’s
opinion, considered it with regard to the record as a whole, and clearly articulated his reasoning
for giving the opinion little weight. Rather than “cherry-picking” Ms. Mitchell’s notes, as can be
seen above, the ALJ thoroughly discussed her notes, showing that he evaluated the entire record
and considered its contents in making his decision. The ALJ noted that Ms. Mitchell’s opinion
was inconsistent with the objective evidence, including her own treatment notes. TR 22. In
addition, as will be discussed in greater detail below, the ALJ properly did not accord full
credibility to Plaintiff’s subjective representations. As noted above, the supportability of an
opinion with relevant evidence is material when determining the weight given to such an
opinion. See 20 CFR § 416.927(d). Accordingly, the ALJ properly reasoned that Ms. Mitchell’s
opinion should be given less weight, because of her reliance on Plaintiff’s subjective
representations in her opinion, as well as the conflict between that opinion and the objective
Furthermore, the ALJ correctly noted that as a nurse practitioner, Ms. Mitchell’s opinion
cannot be considered an acceptable medical opinion as defined in 20 CFR § 404.1513(a). As the
Regulations note, the opinion from an “other source” can only “provide insight into the severity
of the impairment(s) and how it affects the individual’s ability to function;” it cannot establish
Plaintiff’s impairments and limitations on its own. See SSR 06-03p. Thus, because the ALJ
determined and articulated that Ms. Mitchell’s opinion was inconsistent with the weight of
evidence indicating that Plaintiff’s impairments were not as disabling as Ms. Mitchell opined, the
ALJ correctly abided by the mandates of SSR 06-03p. Finally, the ALJ did not improperly
render a medical opinion, nor did he improperly discredit Ms. Mitchell’s opinion, as Plaintiff
contends; as discussed above, the ALJ’s determination regarding Ms. Mitchell’s opinion was
well-reasoned and considered all relevant evidence of record. Accordingly, Plaintiff’s argument
Turning to the opinion of Dr. Edwards, the ALJ discussed that opinion as follows:
Dr. Terry Edwards, a consultative examiner, evaluated the claimant
in August 2010, and conducted a mental status exam. Dr. Edwards
noted the claimant reported seizure problems, and opined that her
memory and concentration problems were likely related to her
seizures and other medical issues. The claimant told Dr. Edwards
that she does not date, and she is not interested in dating. Dr.
Edwards opined that the claimant would be able to make
interpersonal decisions, and would be able to get along with bosses
and coworkers, but would have moderate to marked problems with
stress only. He opined that she could not travel independently and
would have moderate to marked impairment in focus and
concentration, and moderate problems with overall adaptive skills.
Cognitively, she would be able to learn simple instructions with
extra assistance and have moderate problems with social
functioning. Dr. Edwards diagnosed the claimant with a cognitive
disorder, and major depressive disorder. (Exhibit 13F)
The above-stated opinions of Dr. Dr. [sic] Terry Edwards have
been given considerable weight and incorporated into the residual
functional capacity, along with the mental health treatment notes of
the claimant’s treating psychiatrist Dr. Narciso Gaboy.
TR 19-20, 22 citing TR 462-66, 494-591.
As an initial matter, the opinion of a consulting physician is not entitled to the deference
due the opinion of a treating physician. See Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994).
Further, the fact that an ALJ accords weight to an opinion does not require the ALJ to adopt that
opinion wholesale. See, e.g., Taylor v. Colvin, No. 1:13-cv-222, 2013 WL 6162527 at *14 (N.D.
Ohio Nove. 22, 2013). Accordingly, simply because the ALJ gave weight to Dr. Edwards’s
opinion and incorporated it into his RFC finding does not mean that Dr. Edwards’s findings as to
Plaintiff’s moderate to marked limitations in focus and concentration were, or should have been,
included. Dr. Edwards’s opinion with regard to Plaintiff’s ability to focus and concentrate was
inconsistent with the opinions of Dr. Bruce Davis and Dr. Bill Sekulovski, whose opinions the
ALJ accorded “significant weight.” The ALJ discussed the opinions of Drs. Davis and
Sekulovski as follows:
Dr. Bruce Davis, a consultative examiner, evaluated the claimant in
August 2010. Dr. Davis evaluated the claimant’s back pain.
Physical examination revealed neck pain with no tenderness or
spasms, with slow but normal neck flexion, extension, lateral
flexion, and rotation; normal shoulder, elbow, wrist, and hand
motion with good grip. The claimant’s lower back pain revealed
no tenderness or spasms, with slow position change, thoracolumbar
flexion with 90 degrees, extension 20 degrees, lateral motion 25
degrees, hip flexion 100 degrees, abduction 40 degrees, straight leg
raising 90 degree [sic] supine and seating; incomplete squatting; no
atrophy, normal reflexes, normal gait with slow gait maneuvers
(heel, toe and tandem) across exam room without assistance.
Dr. Bill Sekulovski, evaluated the claimant in January 2011. Dr.
Sekulovski noted the claimant was not taking any medicate [sic] at
the time for her seizures and that her seizures were under fair
control despite no medication. A mini-mental status examination
revealed the claimant to be alert and oriented x 3; with immediate
recall of 3 out of 3; short term recall 3 out of 3; with the ability to
repeat, name, and follow complex commands. The claimant was
noted to have responded normally to assessment of judgment,
insight, recent and remote memory, with no anxiety, agitation, or
depressed affect. The only problem Dr. Sekulovski definitely
diagnosed the claimant with was benign hypertension. (Exhibit
TR 20, citing TR 467-68, 592-97.
As can be seen, Dr. Sekulovski determined Plaintiff to have no impairments in focus and
concentration; in fact, the only problem he diagnosed Plaintiff with was benign hypertension. TR
20, citing TR 592-97. In addition, as noted above, the ALJ determined the opinions of Drs.
Davis and Bruce to be consistent with each other, which was one of his reasons for according
them significant weight. TR 22. Thus, the record presented inconsistent opinions regarding
Plaintiff’s ability to focus and concentrate, and the ALJ resolved this inconsistency by adopting
the opinions of Drs. Davis and Sekulovski, with regard to this issue, in his RFC finding. The
Code of Federal Regulations states that when opinions are inconsistent with each other, the final
decision regarding the weight to be given to the differing opinions lies with the Commissioner.
20 CFR § 416.927(e)(2). The ALJ properly incorporated Dr. Edwards’s opinion in his RFC
finding, while coming to a reasoned decision to not accept Dr. Edwards’s opinion wholesale.
Accordingly, Plaintiff’s argument fails.
Regarding Plaintiff’s argument that the ALJ “‘interpret[ed]’ the impairment in focus and
concentration out of existence” to resolve the dissonance between Dr. Edwards’s opinion and the
ALJ’s ultimate RFC finding, the footnote referenced by Plaintiff states the following:
The consultative examiner’s opinions (Exhibit 13F) of the claimant
having between a “moderate to marked” problem with stress only
and between a “moderate to marked” impairment in focus and
concentration are interpreted at Step 3 of the sequential evaluation
as “less than a marked” impairment. Therefore, an impairment that
is between a “moderate” impairment and a “marked” impairment
does not establish a “marked” impairment. At Step 5 of the
sequential evaluation, this opinion of between “moderate and
marked” limitations is interpreted as the claimant being able to
perform only simple, unskilled tasks and instructions. This very
restricted functional level takes into account the claimant’s
limitations with stress and with focus and concentration.
TR 22, citing TR 462-66.5 As can be seen, the ALJ appropriately interpreted an impairment
between “moderate and marked.” By definition, an impairment between “moderate and marked”
cannot establish a “marked” impairment. Nevertheless, the ALJ’s interpretation still maintains a
severely restricted functional level. Therefore, Plaintiff’s contention that the ALJ used a “fancy
trick” to “‘interpret’ the impairment in focus and concentration out of existence” is without
Although Plaintiff cites to “footnote 3 on page 10” of the ALJ’s decision (Docket No.
21, p. 52), this appears to be a typographical error. The text quoted by Plaintiff is found in
footnote 1. See TR 22.
2. Plaintiff’s Credibility
Plaintiff contends that in finding that her subjective complaints were not fully credible,
the ALJ’s erred by making a finding that “is not supported by substantial evidence, violates SSR
96-7p and is precisely the kind of boilerplate, conclusory opinion that ALJs prohibited [sic] from
making.” Docket No. 21, p. 54. Plaintiff points to SSR 96-7p and a Seventh Circuit decision
disapproving of “conclusory statements” regarding credibility. Id. at 54-55, citing Brindisi ex rel.
Brindisi v. Barnhart, 315 F.3d 783, 787-88 (7th Cir. 2003). Plaintiff argues that the ALJ’s
reasons for finding her not to be fully credible “do not withstand scrutiny” and, therefore, the
ALJ’s credibility determination was improper. Id. at 55. Specifically, Plaintiff contends that the
ALJ wrongly found that Plaintiff’s travel with her boyfriend in 2008 and 2009 detracted from her
claim of disability in and after April 2010. Id. at 40. Plaintiff also contends that, in citing
Plaintiff’s “drug-seeking behavior,” the ALJ referred to ER visits that took place nearly seven
years before Plaintiff filed her SSI claim, and ignored Plaintiff’s twenty-three other visits to the
hospital for treatment of various complaints. Id. at 41.
Plaintiff further argues that “the ALJ erred in rejecting [Plaintiff’s] complaints of
disabling symptoms because Plaintiff failed to obtain even more medical treatment (e.g.
psychological therapy) without considering whether this failure resulted from an inability to
afford treatment.” Id. at 56. Plaintiff contends that the ALJ erroneously found Plaintiff’s failure
to obtain mental health treatment to be evidence that Plaintiff’s affective disorder was not severe.
Defendant responds that “in evaluating credibility, the ALJ has complied with SSR 96-7p
and correctly found plaintiff not to be fully credible.” Docket No. 22, p. 12. Specifically,
Defendant argues that the ALJ found that Plaintiff’s activities of daily living are inconsistent
with the alleged severity of her impairments and that Plaintiff has made inconsistent statements
regarding her impairments. Id. at 9. Defendant further argues that Plaintiff’s testimony
regarding her travel with her boyfriend is inconsistent with Plaintiff’s claims that her back hurt so
much that she had to stay at home, and that Plaintiff was traveling with her boyfriend (and
missing health appointments) even after April 2010. Id. at 10-11. Defendant points to the fact
that “[o]n [Plaintiff’s] last visit on December 20, 2010, to Dr. Gaboy, as mentioned, he noted that
plaintiff was ‘barely compliant’ with her appointments as ‘she usually goes with her partner’
travelling.” Id. at 11, citing TR 494. Defendant contends that the ALJ correctly found that
Plaintiff’s missed mental health appointments and failure to take prescribed medications and seek
mental health treatment indicate that Plaintiff’s mental health impairments are not as severe as
she has alleged. Id. at 11. Defendant also contends that the ALJ correctly concluded that
“plaintiff’s ‘drug seeking behavior’ further detracts from her credibility regarding the severity of
her alleged impairments.” Id. at 12, citing TR 19. As to Plaintiff’s argument that the ALJ should
have considered whether Plaintiff did not seek mental health treatment because she could not
afford to, Defendant counters that “Exhibit 1 of plaintiff’s Brief outlines some 59 visits to Dr.
Gaboy which plaintiff could afford to make.” Id. at 11.
The Sixth Circuit has set forth the following criteria for assessing a plaintiff’s subjective
allegations, including 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. Sec’y of Health & Human Servs., 801 F.2d 847, 852-53 (6th Cir. 1986), quoting S.
Rep. No. 466, 98th Cong., 2d Sess. 24 (emphasis added); see also 20 CFR §§ 404.1529, 416.929
(“statements about your pain or other symptoms will not alone establish that you are disabled . . .
.”); Moon v. Sullivan, 923 F.2d 1175, 1182-83 (6th Cir. 1990) (“though Moon alleges fully
disabling and debilitating symptomatology, the ALJ may distrust a claimant’s allegations . . . if
the subjective allegations, the ALJ’s personal observations, and the objective medical evidence
contradict each other.”). Moreover, “[a]llegations of pain . . . do not constitute a disability,
unless the pain is of such a debilitating degree that it prevents an individual from participating in
substantial gainful employment.” Bradley v. Sec’y of Health & Human Servs., 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 CFR § 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. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997);
Blacha v. Sec’y of Health & Human Servs., 927 F.2d 228, 230 (6th Cir. 1990); and Kirk v. Sec’y
of Health & Human Servs., 667 F.2d 524, 538 (6th Cir. 1981).
The ALJ in the case at bar ultimately found that:
After careful consideration of the evidence, the undersigned finds
that the claimant’s medically determinable impairments could
reasonably be expected to cause some of the alleged symptoms;
however, the claimant’s statements regarding the intensity,
persistence and limiting effects of these symptoms are not fully
credible to the extent they are inconsistent with the above residual
functional capacity assessment.
TR 18. The ALJ explained his rationale for so finding as follows:
The claimant’s work history does not enhance the credibility of her
allegations of disability. The claimant has never worked on more
than a sporadic basis and has never demonstrated a consistent
motivation to work before the date of which she alleges becoming
disabled, which raises a question as to whether the claimant’s
continuing unemployment is actually due to medical impairments.
(Exhibit 5D) A poor work history can lessen a claimant’s
credibility. Woolf v. Shalala, 3 F.3d 1274 (8th Cir. 1993).
The claimant’s activities of daily living are inconsistent with her
allegations of such significant functional limitations, but are fully
consistent with the residual functional capacity described above.
The claimant can dress herself, prepare simple meals, and feed her
dogs. She also stated that she reads occasionally, watches
television and visits with her family. (Exhibit 5E and Exhibit 9E)
The claimant’s subjective complaints to her physicians, the
objective findings documented in her medical records, and the
treatment she has required do not support a finding that her severe
impairments prevent her from performing all work. Although the
claimant alleges disabling physical and mental problems, treatment
notes from Dr. Narciso C. Gaboy, the claimant’s treating physician,
indicate the claimant alleges stressors such as taking care of her
elderly parents and working in 2008 and 2007. Dr. Gaboy’s
treatment notes indicate that he is treating the claimant for
medication maintenance management and brief supportive therapy,
but consistently urges the claimant to see a therapist, to no avail.
In August 2008, the claimant reported to Dr. Gaboy that she enjoys
traveling with her boyfriend on his rig. In April 2009, Dr. Gaboy
noted the claimant missed her last appointment because she was
traveling with her boyfriend. In October 2009, Dr. Gaboy noted
the claimant had missed her last two appointments and was noncompliant. In December 2009, Dr. Gaboy noted that the claimant
was barely completing her treatment goals because she was noncompliant with her appointments and her medication. The
undersigned notes that in every treatment record with Dr. Gaboy in
2009, the claimant’s Axis III states Good Health. (Exhibit 20F)
The medical record indicates the claimant did not return to Dr.
Gaboy until December 2009. At that time, the claimant reported
that she was traveling with her boyfriend and missed her last
appointment. Dr. Gaboy noted that the claimant enjoyed relating
her travels with her boyfriend, and noted in Axis III that the
claimant was in Good Health. (Exhibit 20F) The medical record
indicates the claimant did not continue treatment with Dr. Gaboy
after December 2010. The claimant failed to follow Dr. Gaboy’s
treatment recommendations, specifically in her non-compliance
with medication and missed appointments, along with her failure to
find a therapist, despite Dr. Gaboy’s repeated recommendations.
Additionally, the claimant stopped treatment with Dr. Gaboy in
The claimant’s non-compliance, along with her discontinuation of
treatment, indicate that her mental health problems may not be as
severe as alleged. It is reasonable to conclude that the claimant’s
ability to function would improve if she sought consistent formal
mental health treatment and followed her physician’s plan of care
more diligently. Nevertheless, the claimant’s ability to travel
cross-country with her boyfriend indicates a high level of function
that is inconsistent with her complaints of disabling anxiety,
seizures, and major depressive disorder. The claimant was able to
enjoy these trips, and later relate her adventures to Dr. Gaboy in an
enjoyable fashion; actions inconsistent with someone suffering
disabling depression and anxiety, with disabling fear of having a
The claimant’s treatment record contains medical advice from
many years prior to the alleged onset date. Of note, the claimant
had a primary care physician in 2005 and 2006 named Dr. Janina
Meissner who treated the claimant for hypertension, headaches,
GERD, bipolar disorder, and insomnia. (Exhibit 6F) In June 2006,
Dr. Paulo C. Acosta, a neurologist, examined the claimant and
diagnosed her with seizure disorder. (Exhibit 7F) The record
indicates the claimant did not return to Dr. Acosta after his initial
examination, and there are no records that the claimant returned to
Dr. Meissner after February 2006. From February 2006 until
October 2011, the claimant’s treatment notes are limited to Dr.
Gaboy’s psychiatric medical management and numerous
emergency room visits. (Exhibit 11F and Exhibit 22F)
Additionally, the claimant was seen at Nashville Digestive Disease
Center from September 2007 until April 2008, and diagnosed with
gastritis and esphagitis. (Exhibit 9F)
The claimant has a history of drug seeking behavior, and
emergency room records reflect the claimant sought treatment from
numerous hospitals on the same day with requests for narcotic
medication. (Exhibit 1F, Exhibit 3F, Exhibit 8F, and Exhibit 12F)
This behavior further detracts from the claimant’s credibility with
regard to her description of her symptoms in this case.
Despite the claimant’s reports of frequent seizures, the claimant’s
medical record reflects that her seizure disorder was under control
in October 2011. The claimant has been treated numerous times by
her primary care provider since October 2011. The treatment notes
do not document that the claimant reported any seizure activity.
The undersigned has evaluated the medical evidence along with the
claimant’s testimony, and finds that although the claimant suffers
from numerous conditions that cause some limitations in her ability
to perform work related activities, the evidence does not support
that any of the claimant’s impairments are untreatable, or that the
claimant has made a consistent effort to treat her impairments in
hopes of finding employment. The claimant has documented drug
seeking behavior that along with her poor earning records, indicate
the claimant has other motivations in life that do not include being
gainfully employed. Additionally, the claimant’s history of
traveling across the country with her boyfriend is inconstant [sic]
with the inability to sit for more than an hour at a time due to
disabling pain, and inconstantly [sic] with disabling anxiety and
While the claimant’s medical records do not reveal that her severe
impairments are disabling, these conditions do impose some
limitations. The evidence of record supports a finding that
claimant’s severe impairments limit her to light work with some
additional limitations. Specifically, the evidence reveals that
claimant can lift and carry up to 20 pounds occasionally and must
avoid all hazards. The claimant is further limited to jobs that only
require simple instructions, and require [sic] initial extra help to
learn the job, with only gradual and infrequent changes in the
workplace. This finding is based on the opinion of the consultative
examiners in exhibits 13F and 14F. This finding is supported by
claimant’s lumbago; degenerative disc disease of the lumbar spine;
insomnia; joint pain of the leg; hypertension; seizure disorder;
headaches; reflux; cognitive disorder; major depressive disorder;
bipolar; anxiety; adjustment disorder with anxiety; and depressed
TR 18-22, citing TR 149-52, 178-85, 201-08, 247-50, 259-82, 302-11, 312-15, 316-62, 363-77,
400-68, 494-597 (footnote omitted).
As can be seen, the ALJ’s decision specifically addresses not only the medical evidence,
but also Plaintiff’s testimony and her subjective claims, clearly indicating that these factors were
considered. Id. The ALJ’s articulated rationale demonstrates that, although there is evidence
which could support Plaintiff’s claims, the ALJ chose to rely on evidence that was inconsistent
with Plaintiff’s allegations. This is within the ALJ’s province.
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; Kirk, 667 F.2d at 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. Sec’y of Health & Human Servs., 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, 862 F.2d at 1227; cf
King v. Heckler, 742 F.2d 968, 974-75 (6th Cir. 1984); and Siterlet v. Sec’y of Health & Human
Servs., 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.
Although Plaintiff asserts that the ALJ used boilerplate language along with unsupported
reasoning, as can be seen above, the ALJ actually considered the record, properly evaluated its
merits, and came to a reasoned decision regarding Plaintiff’s credibility. TR 18-22. With respect
to Plaintiff’s contention that the ALJ did not consider her inability to afford treatment, as can also
be seen above, the ALJ explicitly discussed and referred to Exhibit 5D, Plaintiff’s “Detailed
Earnings Query.” TR 18. This document details Plaintiff’s earnings from various employers.
TR 149-52. Accordingly, the ALJ was aware of Plaintiff’s finances.
Regarding Plaintiff’s assertion that the ALJ’s decision is not based on substantial
evidence, as explained above, “substantial evidence” means “such relevant evidence as a
reasonable mind would accept as adequate to support the conclusion.” Her, 203 F.3d at 389,
citing Richardson, 401 U.S. at 401, and has been further quantified as “more than a mere scintilla
of evidence, but less than a preponderance.” Bell, 105 F.3d at 245, citing Consol. Edison Co.,
305 U.S. at 229.
The record here contains many doctors’ evaluations, medical assessments, test results,
and the like, all of which were properly considered by the ALJ, and all of which constitute
“substantial evidence.” See TR 18-22. Additionally, the ALJ’s decision demonstrates that he
carefully considered the testimony of both Plaintiff and the VE. TR 18-24. While it is true that
some of the testimony and evidence supports Plaintiff’s allegations of disability, it is also true
that much of the evidence supports the ALJ’s determination that Plaintiff’s allegations that she is
incapable of all work activity are not fully credible. Id.
As has been noted, the reviewing court does not substitute its findings for those of the
Commissioner if substantial evidence supports the Commissioner’s findings and inferences.
Garner, 745 F.2d at 387. In fact, even if the evidence could also support a different conclusion,
the decision of the ALJ must stand if substantial evidence supports the conclusion reached. Her,
203 F.3d at 389, citing Key, 109 F.3d at 273.
As discussed above, after assessing all of the medical and testimonial evidence, the ALJ
ultimately determined that “the claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not fully credible to the extent they are inconsistent with
the above residual functional capacity assessment.” TR 18. In making this determination, the
ALJ observed Plaintiff during her hearing, assessed the medical records, and reached a reasoned
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 “the ALJ’s RFC finding is contradicted by his own Step 2
findings that [Plaintiff] suffers from 14 severe impairments.” Docket No. 21, p. 55. Specifically,
Plaintiff contends that the RFC “in no way” includes the limitations that result from these
impairments, especially concerning Plaintiff’s insomnia, low back and hip pain, headaches, and
medication use. Id. at 55-56.
Defendant responds that some of the fourteen severe impairments overlap. Docket No.
22, p. 15. Defendant further responds that “Step 2 is a threshold question with only a de minimis
functional ‘severity’ requirement” and that “[m]edical conditions alone do not entitle one to
disability benefits without related functional loss.” Id., citing Gross v. Heckler, 785 F.2d 1163,
1166 (4th Cir. 1986). Defendant argues therefore that it is the ALJ’s sole responsibility “to make
the RFC determination based upon the relevant evidence presented.” Id.
“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 CFR § 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 CFR § 404.1545(b).
The ALJ in the case at bar ultimately determined that Plaintiff retained the RFC for “light
work as defined in 20 CFR 416.967(b) except the claimant must avoid exposure to hazards. The
claimant is further able to understand, remember and carry out simple instructions and is able to
adapt to gradual and infrequent changes in the workplace” TR 17. The ALJ explained:
In making this finding, the undersigned has considered all
symptoms and the extent to which these symptoms can reasonably
be accepted as consistent with the objective medical evidence and
other evidence, based on the requirements of 20 CFR 416.929 and
SSRs 96-4p and 96-7p. The undersigned has also considered
opinion evidence in accordance with the requirements of 20 CFR
416.927 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.
As has been demonstrated, the ALJ appropriately considered, evaluated, and discussed
Plaintiff’s records and testimony when rendering his RFC assessment. TR 17-22. In fact, as
noted above, the ALJ specifically discussed Plaintiff’s fourteen impairments and noted that
although they did not rise to the level of disability, they nevertheless limit Plaintiff’s ability to
work. TR 21-22. The ALJ ultimately determined that Plaintiff retained the RFC to perform light
work with additional limitations. TR 17. The ALJ properly evaluated the evidence in reaching
this RFC determination, and the Regulations do not require more.
4. Hypothetical Questions and Reliance on the VE’s Testimony Related Thereto
Plaintiff argues that the ALJ’s hypothetical questions posed to the VE did not accurately
reflect her exertional and nonexertional limitations, and that therefore the ALJ erred in relying
upon the VE’s testimony to establish the existence of a significant number of jobs in the national
economy that Plaintiff could perform. Docket No. 21, p. 53. Specifically, Plaintiff argues that
the ALJ did not include limitations opined by Ms. Mitchell, which Plaintiff contends are
supported by the record and uncontradicted (except by the State medical consultants) Id.
Plaintiff also argues that the ALJ failed to include limitations opined by Dr. Womack, and did
not give any reason for failing to do so. Id. Additionally, Plaintiff maintains that “[t]he ALJ’s
failure to ask determine [sic] whether the VE’s testimony was consistent with the DOT is a
violation of SSR 00-4p, and constitutes reversible error.” Id.
Defendant does not specifically respond to Plaintiff’s contention that the ALJ’s
hypothetical questions posed to the VE did not accurately reflect Plaintiff’s exertional and
nonexertional limitations. See Docket No. 22. Regarding Plaintiff’s argument that the ALJ’s
failure to ask the VE whether her testimony was consistent with the DOT is reversible error,
Defendant responds that “[i]n this case, the omission is harmless.” Id. at 14. Defendant
First, the VE obviously relied upon the DOT giving the DOT
identifying numbers for each of the 3 light, unskilled jobs the VE
identified that a person with plaintiff’s RFC could perform. Tr. 61.
Nothing in the DOT descriptions of these jobs contradicts the VE’s
testimony. Second, for this omission to become harmful, plaintiff
must show prejudice. Plaintiff’ [sic] Brief makes no such showing
because plaintiff cannot do so.
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 CFR §§ 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, “expert testimony would be required to satisfy the Secretary’s burden of proof regarding the
availability of jobs which this particular claimant can exertionally handle.” Kirk v. Sec’y of
Health & Human Servs., 667 F.2d 524, 531 (6th Cir. 1983). In other words, the ALJ may rely on
the testimony of a VE 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 v.
Sec’y of Health & Human Servs., 820 F.2d at 779, quoting O’Banner v. Sec’y of Health, Ed. &
Welfare, 587 F.2d 321, 323 (6th Cir. 1978).
At Plaintiff’s hearing, the ALJ in the instant action posed several hypothetical questions
to the VE. TR 59-61. The ALJ first queried:
So Ms. McBroom-Weiss, we’ve got our, our past relevant
work at medium and light unskilled and semi-skilled. So
I’m going to give you a hypothetical, and for each
hypothetical, I want you to consider an individual who is
basically, would be 40 to 42 years old, seventh grade
education, so limited education. And then that, as I said,
that past relevant work in the light unskilled and medium
All right. For the first hypothetical, I want you to consider
from a physical standpoint, consider that the individual can
perform exertional activities at a full range of light with no
exposures to hazards. That’s based on 14F. And then
consider that the individual is able to understand, remember
and carry out only simple instructions. Let me just open
this up to – let me just read this to you. This is how it goes.
From, from – cognitively, she would be able to learn simple
instructions with extra assistance. Okay?
All right. So she’s able to understand, remember, and carry
out simple instructions, but to learn them, she’s going to
need a little extra assistance in the beginning. All right.
Also, only gradual and infrequent change. Okay. Based on
those physical and mental limitations, would she be able to
perform any past relevant work?
Your Honor, I had just a quick, quick question. I think it’s
the extra assistance is throwing me off. It would depend on
if she would need a job coach which would be a special
accommodation to learn the job or if she would just need a
little bit of minor extra assistance. I mean, it’s so unclear.
As I read it, it appears it would be just – it’s not a job coach
level. It’s the, it’s the – just a little extra more time with
the supervisor, but still able to, to learn the activities –
– and perform them.
Okay. Given that, Your Honor, the gluer position would
remain, but not the housekeeper.
Okay. All right. Because there are some questions with
regard to past relevant work, let’s go ahead and take
testimony with regard to other jobs in the regional or
national economy that may be available.
Okay. Just a moment, Your Honor. Given these
limitations, one example would be hotel housekeeper. That
DOT – sorry, just one second, computer is slow – is
323.687-014. A light unskilled position. Approximately
4,700 in Tennessee, 220,000 in the U.S. Just one more
second. Another example would be a hand packager at
light unskilled. Approximately – oh, 559.687-074.
Approximately 600 in Tennessee, 22,000 in the U.S.
That’s also light unskilled?
It is, Your Honor.
And just one additional – just one second. And another
example would be a bench assembler, 706.684-022, light
unskilled. Approximately 1,400 in Tennessee, 20,000 in
The ALJ then modified the hypothetical question and queried:
Okay. All right. For the next hypothetical, consider the
same physical limitations, but from a mental standpoint,
consider that the individual is going to have recurring
periods that – where she’s not able to maintain her focus
and concentration on a sustained basis. Consider that that’s
due to both issues with dealing with workplace stress and
problems with short and long term memory. And I think
another way to describe this is to consider that she would
be – it’s reasonable to expect that she would have periods
of being off-task for more than 20 percent of the day.
Based on those limitations, would that individual be able to
perform any of the past relevant work?
No, Your Honor.
How about other jobs in the regional or national economy?
There would not be, Your Honor.
As can be seen, the ALJ posed several hypothetical questions to the VE, each
incorporating different combinations of exertional and nonexertional limitations alleged by
Plaintiff and/or contained within the record. TR 59-61. As has been discussed in the statements
of error above, the ALJ properly evaluated the evidence, found that Plaintiff’s allegations were
not fully credible, and ultimately determined that Plaintiff retained the following RFC:
. . . to perform light work as defined in 20 CFR 416.967(b) except
the claimant must avoid exposure to hazards. The claimant is
further able to understand, remember and carry out simple
instructions and is able to adapt to gradual and infrequent changes
in the workplace.
An ALJ may rely on the testimony of a VE 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. Sec’y of Health, Ed. & Welfare,
587 F.2d 321, 323 (6th Cir. 1978).
In the instant action, the hypothetical question posed to the VE by the ALJ, upon which
the ALJ relied to establish the existence of a significant number of jobs in the national economy
that Plaintiff could perform, accurately reflected the limitations that the ALJ found credible,
consistent with, and supported by, the evidence of record. See TR 17-22. Because the
hypothetical question upon which the ALJ ultimately rendered his decision accurately
represented Plaintiff’s credible limitations, the ALJ properly relied on the VE’s answer to that
hypothetical question 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. Sec’y of Health & Human Servs., 823 F.2d 922, 927-28 (6th Cir. 1987); Varley, 820
F.2d at 779. Accordingly, Plaintiff’s claim fails.
Regarding Plaintiff’s argument that the ALJ omitted limitations from Ms. Mitchell’s
opinion, as discussed above, the ALJ properly accorded little weight to Ms. Mitchell’s opinion.
Thus, it was proper for the ALJ not to include the additional limitations included in her opinion
in the hypothetical questions posed to the VE.
Turning to Plaintiff’s contention that the ALJ improperly omitted, without explanation,
limitations assessed by Dr. Womack, the record indicates that Dr. Womack’s RFC assessment
indicated eight different moderate mental impairments. TR 483-84. Under “Sustained
Concentration and Persistence,” Dr. Womack indicated moderate limitations in the ability to
maintain attention and concentration for extended periods, and the ability to complete a normal
workday and workweek without interruptions from psychologically based symptoms and to
perform at a consistent pace without an unreasonable number and length of rest periods. Id.
Under “Social Interaction,” Dr. Womack indicated moderate limitations in the ability to interact
appropriately with the general public, the ability to accept instructions and respond appropriately
to criticism from supervisors, and the ability to get along with coworkers or peers without
distracting them or exhibiting behavioral extremes. TR 484. Under “Adaptation,” Dr. Womack
indicated moderate limitations in the ability to respond appropriately to changes in the work
setting, the ability to travel in unfamiliar places or use public transportation, and the ability to set
realistic goals or make plans independently of others. Id.
These findings are consistent with the findings by the ALJ and are consistent with the
opinions relied on by the ALJ. TR 16-22. Specifically, the ALJ determined Plaintiff to have the
following impairments in social interaction:
In social functioning, the claimant has moderate difficulties. The
claimant sits on her porch daily, talks on the phone, and spends
time with her mother and daughter. (Exhibit 9E). Treatment
records indicate the claimant often traveled with her boyfriend who
drove around to different work sites in different cities. (Exhibit
TR 16, citing TR 201-08, 494-591.
Regarding concentration and persistence, the ALJ discussed the following: “With regard
to concentration, persistence or pace, the claimant has moderate difficulties. The claimant has
difficulty with instructions and memory, but watches television and reads on occasion. (Exhibit
5E and Exhibit 9E).” TR 16, citing TR 178-85, 201-08. In addition, regarding adaptation, Dr.
Edwards opined that Plaintiff maintained “moderate problems with overall adaptive skills.” TR
465. Dr. Edwards’s opinion was given “considerable weight” by the ALJ. TR 22.
As can be seen, the moderate limitations noted by Dr. Womack in social interaction,
concentration and persistence, and adaptation were properly considered, evaluated, and assessed
by the ALJ. Accordingly, Plaintiff’s argument on this point fails.
Regarding Plaintiff’s claim that the ALJ failed to ask the VE whether her testimony was
consistent with the DOT (Docket 21, p. 53), the Social Security Regulations discuss the duty to
ask this question as follows:
The Responsibility to Ask About Conflicts
When a VE or VS provides evidence about the requirements of a
job or occupation, the adjudicator has an affirmative responsibility
to ask about any possible conflict between that VE or VS evidence
and information provided in the DOT. In these situations, the
Ask the VE or VS if the evidence he or she has provided conflicts
with information provided in the DOT; and
If the VE’s or VS’s evidence appears to conflict with the DOT, the
adjudicator will obtain a reasonable explanation for the apparent
Explaining the Resolution
When vocational evidence provided by a VE or VS is not
consistent with information in the DOT, the adjudicator must
resolve this conflict before relying on the VE or VS evidence to
support a determination or decision that the individual is or is not
disabled. The adjudicator will explain in the determination or
decision how he or she resolved the conflict. The adjudicator must
explain the resolution of the conflict irrespective of how the
conflict was identified.
SSR 00-4P, 2000 WL 1898704, *4 (2000). When an ALJ fails to ask the VE about consistency
with the DOT, courts have determined that without discernible harm to the plaintiff, the
Commissioner’s decision should not be remanded based purely on this technical error. See, e.g.,
Andrade v. Astrue, No. 2:11CV140, 2012 WL 364735, at *14 (E.D. Tenn. March 6, 2012)
(determining the ALJ’s failure to ask harmless when plaintiff failed to show he was harmed by
the ALJ’s inadvertence in not asking the VE whether there were any inconsistencies between her
testimony and the DOT).
In the case at bar, Plaintiff is correct that the ALJ failed to ask the VE whether her
testimony was consistent with the DOT. See TR 30-65. However, Plaintiff does not demonstrate
any way that she was harmed by this failure to ask. See Docket No. 21. In addition, while the
ALJ did not ask whether the VE’s testimony was consistent with the DOT, the VE explicitly
referred to the applicable DOT numbers in her testimony, as cited above. TR 59-61.
Accordingly, the ALJ was aware that the VE’s testimony was based on evidence consistent with
information provided by the DOT. As a result, there is no evidence that the VE’s testimony was
inconsistent with the DOT. Thus, the ALJ’s failure to ask the VE this question is not grounds for
reversal or remand.
Furthermore, regarding the ALJ’s duty to determine whether the VE’s testimony was
consistent with the DOT, the Social Security Regulations state:
Resolving Conflicts in Occupational Information
Occupational evidence provided by a VE or VS generally should
be consistent with the occupational information provided by the
DOT. When there is an apparent unresolved conflict between VE
or VS evidence and the DOT, the adjudicator must elicit a
reasonable explanation for the conflict before relying on the VE or
VS evidence to support a determination or decision about whether
the claimant is disabled. At the hearings level, as part of the
adjudicator’s duty to fully develop the record, the adjudicator will
inquire, on the record, as to whether or not there is such
Neither the DOT nor the VE or VS evidence automatically
“trumps” when there is a conflict. The adjudicator must resolve
the conflict by determining if the explanation given by the VE or
VS is reasonable and provides a basis for relying on the VE or VS
testimony rather than on the DOT information.
SSR 00-4), 2000 WL at *2. The ALJ stated that the VE’s testimony was consistent with
information in the DOT. TR 23. As there is no evidence that the VE’s testimony was
inconsistent with the DOT, the ALJ had no duty to explain the resolution of any conflict. SSR
00-4p. In addition, Plaintiff provides no support in her brief for her contention that the ALJ
failed to determine the consistency. See Docket No. 21. Accordingly, Plaintiff’s contention on
this point must fail.
5. Plaintiff’s Past Relevant Work and Ability to Perform Other Work
Plaintiff argues that the ALJ erred in determining that her work as a gluer qualified as
past relevant work. Docket No. 21, p. 52. Specifically, Plaintiff argues that her work as a gluer
did not constitute substantial gainful activity (“SGA”). Id. Plaintiff asserts that her monthly
income did not reach the level necessary for SGA. Id. at 52-53. In addition, Plaintiff contends
that because her work as a gluer did not qualify as past relevant work, the ALJ’s finding that she
could perform past relevant work was in error. Id. at 53.
Defendant responds that the ALJ “is not necessarily incorrect” in his past relevant work
determination. Docket No. 22, p. 14. Defendant contends that the presumption that $700.00 per
month constitutes SGA should not be applied mechanically in this type of situation “where the
average monthly earnings are very close to the $700.00 amount, or may well exceed this amount
since the record does not reflect whether plaintiff worked a full 12 months in the year 2000.” Id.,
citing TR 161. In addition, Defendant contends that even if the ALJ is in error, it would not
constitute reversible error because the ALJ made an alternative finding that Plaintiff could
perform other jobs identified by the VE. Id., citing TR 23-24.
The ALJ discussed Plaintiff’s ability to engage in past relevant work as a gluer as
5. The claimaint is capable of performing past relevant work
as a gluer. This work does not require the performance of
work-related activities precluded by the claimant’s residual
functional capacity (20 CFR 416.965).
The vocational expert testified that the claimant’s past relevant
work as a gluer is identified as light, unskilled work (D.O.T. #
795.687-014) with an SVP of 2. The vocational expert testified
that this work was not precluded by the claimant’s residual
In comparing the claimant’s residual functional capacity with the
physical and mental demands of this work, the undersigned finds
that the claimant is able to perform it as generally performed. The
undersigned specifically asked the vocational expert, pursuant to
the requirements set forth in SSR 00-4p, whether the opinions
expressed were consistent with the occupational information
provided in the Dictionary of Occupational Titles (DOT). The
vocational expert answered in the affirmative.
Although the claimant is capable of performing past relevant work,
there are other jobs existing in the national economy that she is
also able to perform. Therefore, the Administrative Law Judge
makes the following alternative findings for step five of the
sequential evaluation process.
TR 22-23. Although the ALJ did not directly discuss his reasons for considering Plaintiff’s work
as a gluer to be SGA, the ALJ considered Plaintiff’s work history records, which provide the
evidence of her monthly and yearly income, stating:
The claimant’s work history does not enhance the credibility of her
allegations of disability. The claimant has never worked on more
than a sporadic basis and has never demonstrated a consistent
motivation to work before the date of which she alleges becoming
disabled, which raises a question as to whether the claimant’s
continuing unemployment is actually due to medical impairments
(Exhibit 5D). A poor work history can lessen a claimant’s
credibility. Woolf v. Shalala, 3 F.3d 1274 (8th Cir. 1993).
TR 18, citing TR 149-52. As noted above, Exhibit 5D discusses Plaintiff’s earnings from
Regarding the impact of finding that a claimant has or has not engaged in SGA, the Code
of Federal Regulations states that: “Generally, if you worked for substantial earnings, we will
find that you are able to do substantial gainful activity. However, the fact that your earnings
were not substantial will not necessarily show that you are not able to do substantial gainful
activity.” 20 CFR § 416.974(a)(1). The portion of the Regulations relevant to calculating
whether a claimant’s income constitutes SGA states:
(2) Earnings that will ordinarily show that you have engaged in
substantial gainful activity. We will consider that your earnings
from your work activity as an employee (including earnings from
work in a sheltered workshop or a comparable facility especially
set up for severely impaired persons) show that you have engaged
in substantial gainful activity if:
(i) Before January 1, 2001, they averaged more than the
amount(s) in Table 1 of this section for the time(s) in which
(ii) Beginning January 1, 2001, and each year thereafter,
they average more than the larger of:
(A) The amount for the previous year, or
(B) An amount adjusted for national wage growth,
calculated by multiplying $700 by the ratio of the
national average wage index for the year 2 calendar
years before the year for which the amount is being
calculated to the national average wage index for
the year 1998. We will then round the resulting
amount to the next higher multiple of $10 where
such amount is a multiple of $5 but not of $10 and
to the nearest multiple of $10 in any other case.
(3) Earnings that will ordinarily show that you have not engaged in
substantial gainful activity.
(i) General. If your average monthly earnings are equal to
or less than the amount(s) determined under paragraph
(b)(2) of this section for the year(s) in which you work, we
will generally consider that the earnings from your work as
an employee (including earnings from work in a sheltered
workshop or comparable facility) will show that you have
not engaged in substantial gainful activity. We will
generally not consider other information in addition to your
earnings except in the circumstances described in paragraph
(b)(3)(ii) of this section.
20 CFR § 416.974(b).
As noted above, the Regulations establish a presumption of the amount of average
monthly income that will qualify as SGA; however, the Regulations do not create a bright line
rule. See 20 CFR § 416.974; Wade v. Astrue, No. 1:11 CV 489, 2012 WL 1004728 at *3 (N.D.
Ohio March 23, 2012). The Regulations simply indicate when earnings will “ordinarily show”
whether one earns enough income to constitute SGA. 20 CFR § 416.974. The relevant
Regulations provide guidelines for the ALJ’s determination. Id. The ALJ’s opinion
demonstrates that he considered Plaintiff’s income and came to a reasoned decision regarding
whether her work as a gluer qualified as SGA. TR 18, citing TR 149-52.
Furthermore, Table 1 of this section of the Regulations states that the average monthly
earnings applicable to Plaintiff is $700.00, as she worked between January and December 2000.
See 20 CFR § 416.974(b)(2)(ii)(B). The record indicates that Plaintiff was paid $7,516.87 for her
work as a gluer in 2000, meaning that if she worked all twelve months, her average monthly
income totaled about $626.41, which would not meet the $700.00 monthly presumption for SGA.
TR 150. Plaintiff, however, points to no evidence that she worked all twelve months of 2000.
See Docket No. 21. At Step 4 of the sequential evaluation, it is the plaintiff’s burden to prove
that his or her work did not constitute SGA and past relevant work. 20 CFR § 416.920. To meet
his or her burden regarding SGA, a plaintiff should put forth evidence of how many months in
the relevant time period he or she worked at the job in question. Wade v. Astrue, 2012 WL
1004728, at *3 (failing to find error in the ALJ’s SGA determination based on earnings alone
when plaintiff put forth no evidence regarding a proper denominator). In the case at bar, Plaintiff
simply states that “the evidence establishes that she performed this job for the entire year,”
without identifying any specific evidence. Docket No. 21, p. 53. It is not clear from the evidence
of record how many months of 2000 Plaintiff worked as a gluer, and thus whether she met the
presumption of SGA. See TR 149-52.
Notably, Plaintiff failed to make an argument in support of her contention that the ALJ
erred in his finding that Plaintiff could perform past relevant work. See Docket No. 21. Plaintiff
simply states that there was no past relevant work. Id. at 53. Accordingly, Plaintiff’s claims that
her work as a gluer did not constitute past relevant work and that she did not meet past relevant
work requirements more generally must fail.
Moreover, the ALJ continued to find that Plaintiff is also able to perform other work that
exists in significant numbers in the national economy. TR 23. Plaintiff contends that “the ALJ’s
finding that [Plaintiff] can perform other work is error.” Docket No. 21, p. 53. Specifically,
Plaintiff argues that because one of the ALJ’s hypothetical questions incorporated limitations
from Dr. Edwards’s assessment, that question that “the ALJ expressly endorsed resulted in
testimony from the VE that no jobs could be performed;” thus, the ALJ should have found
Plaintiff to be disabled. Id.
Defendant does not address Plaintiff’s contentions related to the ALJ’s finding that
Plaintiff could perform other work. See Docket No. 22.
Regarding the ALJ’s incorporation of Dr. Edwards’s assessment and the resulting VE
testimony, as discussed above in the first statement of error (Weight Accorded to the Medical
Opinion Evidence), the ALJ came to a reasoned decision regarding the inconsistencies between
the opinions of Drs. Bruce and Sekulovski and that of Dr. Edwards. As such, the ALJ properly
determined the impact of Dr. Edwards’s opinion on the RFC assessment and hypothetical
Regarding Plaintiff’s ability to perform other jobs in the national economy besides her
past relevant work, the ALJ wrote:
The claimant was born on October 22, 1969 and was 40 years old,
which is defined as a younger individual age 18-49, on the date the
application was filed (20 CFR 416.963). The claimant has a
limited education and is able to communicate in English (20 CFR
416.964). Transferability of job skills is not an issue in this case
because the claimant’s past relevant work is unskilled (20 CFR
In the alternative, considering the claimant’s age, education, work
experience, and residual functional capacity, there are other jobs
that exist in significant numbers in the national economy that the
claimant can also perform (20 CFR 416.969 and 416.969(a)).
In determining whether a successful adjustment to other work can
be made, the undersigned must consider the claimant’s residual
functional capacity, age, education, and work experience in
conjunction with the Medical-Vocational Guidelines, 20 CFR Part
404, Subpart P, Appendix 2. If the claimant can perform all or
substantially all of the exertional demands at a given level of
exertion, the medical-vocational rules direct a conclusion of either
“disabled” or “not disabled” depending upon the claimant’s
specific vocational profile (SSR 83-11). When the claimant cannot
perform substantially all of the exertional demands of work at a
given level of exertion and/or has nonexertional limitations, the
medical-vocational rules are used as a framework for
decisionmaking [sic] unless there is a rule that directs a conclusion
of “disabled” without considering the additional exertional and/or
nonexertional limitations (SSRs 83-12 and 83-14). If the claimant
has solely nonexertional limitations, section 204.00 in the MedicalVocational Guidelines provides a framework for decisionmaking
[sic] (SSR 85-15).
If the claimant had the residual functional capacity to perform the
full range of light work, a finding of “not disabled” would be
directed by Medical-Vocational Rule 202.17. However, the
claimant’s ability to perform all or substantially all of the
requirements of this level of work has been impeded by additional
limitations. To determine the extent to which these limitations
erode the unskilled light 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 of these factors the
individual would be able to perform the requirements of
representative occupations such as a hotel housekeeper (unskilled,
light, DOT #323.687-014), with approximately 4,700 jobs
statewide, and 220,000 jobs nationally); hand packager (unskilled,
light, DOT #559.687-074, with approximately 600 jobs locally and
22,000 jobs nationally); and a bench assembler (unskilled, light,
DOT #706.684-022, with approximately 1,400 jobs locally and
20,000 jobs nationally).
Pursuant to SSR 00-4p, the undersigned has determined that the
vocational expert’s testimony is 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
As has been discussed above, the ALJ properly evaluated and discussed the medical
evidence of record, appropriately assessed the credibility of Plaintiff’s statements, properly
determined Plaintiff’s RFC, asked appropriate questions of the VE and was justified in relying on
the VE’s testimony. The ALJ then properly arrived at the finding that Plaintiff is not only
capable of performing her past relevant work, but is capable of performing other work as well.
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
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 (1985), reh’g denied, 474 U.S. 1111
(1986); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72.
JEFFERY S. FRENSLEY
United States Magistrate Judge
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