American Earth Solutions, LLC v. Peacock et al

Filing 32

REPORT AND RECOMMENDATION: For the reasons discussed above, the undersigned recommends that Plaintiff's Motion for Judgment on the Administrative Record be DENIED, and that the decision of the Commissioner be AFFIRMED. Signed by Magistrate Judge E. Clifton Knowles on 1/19/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

BETTY SUE HALL,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 3:13-cv-01097
Judge Campbell / Knowles

REPORT AND RECOMMENDATION
This is a civil action filed pursuant to 42 U.S.C. § 405(g), to obtain judicial review of the
final decision of the Commissioner of Social Security denying Plaintiff Disability Insurance
Benefits (“DIB”), as provided under Title II of the Social Security Act (“the Act”). The case is
currently pending on Plaintiff’s Motion for Judgment on the Administrative Record. Docket No.
11. Defendant has filed a Response, arguing that the decision of the Commissioner was
supported by substantial evidence and should be affirmed. Docket No. 13.
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
be AFFIRMED.
I. INTRODUCTION
Plaintiff filed her application for Disability Insurance Benefits (“DIB”) on December 14,
2010, alleging that she has been disabled since January 1, 2008,1 due to “physical limitations due

1

Plaintiff subsequently amended her alleged onset date to January 16, 2009. TR 14.

to surgery” and hernias, hypertension, degenerative disc disease, “plastic mesh inside abdominal
cavity,” high blood pressure, diabetes, “stress,” and “cholesterol.” See, e.g., Docket No. 9,
Attachment (“TR”), pp. 128-29, 157. Plaintiff’s application was denied both initially (TR 71-73)
and upon reconsideration (TR 80-82). Plaintiff subsequently requested (TR 83) and received
(TR 27-59) a hearing. Plaintiff’s hearing was conducted on January 8, 2013, by Administrative
Law Judge (“ALJ”) Scott Shimer. TR 27. Plaintiff and vocational expert (“VE”), Dr. Gary
Sturgill, appeared and testified. Id.
On February 20, 2013, 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
12-22. Specifically, the ALJ made the following findings of fact:
1.

The claimant meets the insured status requirements of the
Social Security Act through December 31, 2014.

2.

The claimant has not engaged in substantial gainful activity
since January 16, 2009, the amended alleged onset date (20
CFR 404.1571 et seq.).

3.

The claimant has the following severe impairments:
depressive disorder, degenerative disc disease, status-post
hernia with repair, diabetes mellitus, Type II, obesity, and
arthritis (20 CFR 404.1520(c)).

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 light work as defined in 20
CFR 404.1567(b). Specifically, the claimant is able to lift
and carry up to 20 pounds occasionally and 10 pounds
2

frequently and stand, walk, and sit for 6 hours in an 8-hour
day except that the claimant can occasionally stoop, kneel,
crouch, and crawl. She can occasionally climb ramps and
stairs and can never climb ladders, ropes, or scaffolds. The
claimant is limited to simple, repetitive, routine tasks with
detailed but not complex instructions. She can have only
gradual and infrequent changes in the workplace setting and
can have only occasional interaction with the general
public.
6.

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

7.

The claimant was born on November 12, 1958 and was 49
years old, which is defined as an individual closely
approaching advanced age, on the alleged disability onset
date (20 CFR 404.1563).

8.

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

9.

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

10.

Considering the claimant’s age, education, work
experience, and residual functional capacity, there are jobs
that exist in significant numbers in the national economy
that the claimant can perform (20 CFR 404.1569 and
404.1569(a)).

11.

The claimant has not been under a disability, as defined in
the Social Security Act, from January 1, 2008, through the
date of this decision (20 CFR 404.1520(g)).

TR 14-22.
On April 5, 2013, Plaintiff timely filed a request for review of the hearing decision. TR
7. On April 19, 2014, the Appeals Council issued a letter declining to review the case (TR 1-5),
3

thereby rendering the decision of the ALJ the final decision of the Commissioner. This civil
action was thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. § 405(g). If the
Commissioner’s findings are supported by substantial evidence, based upon the record as a
whole, then these findings are conclusive. Id.
II. REVIEW OF THE RECORD
The parties and the ALJ have thoroughly summarized and discussed the medical and
testimonial evidence of Record. Accordingly, the Court will discuss those matters only to the
extent necessary to analyze the parties’ arguments.
III. CONCLUSIONS OF LAW
A. Standard of Review
This Court’s review of the Commissioner’s decision is limited to the record made in the
administrative hearing process. Jones v. Sec’y, 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 would 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, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)).
4

The reviewing court does not substitute its findings of fact for those of the Commissioner
if substantial evidence supports the Commissioner’s findings and inferences. Garner v. Heckler,
745 F.2d 383, 387 (6th Cir. 1984). In fact, even if the evidence could also support a different
conclusion, the decision of the Administrative Law Judge must stand if substantial evidence
supports the conclusion reached. Her, 203 F.3d at 389 (citing Key v. Callahan, 109 F.3d 270,
273 (6th Cir. 1997)). 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) diagnosis and opinions of
medical experts; (3) subjective evidence of Plaintiff’s condition; and (4) Plaintiff’s age,
education, and work experience. Miracle v. Celebrezze, 351 F.2d 361, 374 (6th Cir. 1965).
B. Proceedings At The Administrative Level
The claimant carries the ultimate burden to establish an entitlement to benefits by proving
his or her “inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). “Substantial gainful activity” not
only includes previous work performed by Plaintiff, but also, considering Plaintiff’s age,
education, and work experience, any other relevant work that exists in the national economy in
significant numbers regardless of whether such work exists in the immediate area in which
Plaintiff lives, or whether a specific job vacancy exists, or whether Plaintiff would be hired if he
or she applied. 42 U.S.C. § 423(d)(2)(A).
5

At the administrative level of review, the claimant’s case is considered under a five-step
sequential evaluation process as follows:
(1) If the claimant is working and the work constitutes substantial
gainful activity, benefits are automatically denied.
(2) If the claimant is not found to have an impairment which
significantly limits his or her ability to work (a “severe”
impairment), then he or she is not disabled.
(3) If the claimant is not working and has a severe impairment, it
must be determined whether he or she suffers from one of the
“listed” 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
that prevents him or her from returning to such past relevant work,
the claimant establishes a prima facie case of disability.
(5) Once the claimant establishes a prima facie case of disability,
the burden shifts to the Commissioner to establish the claimant’s
ability to work by proving the existence of a significant number of
jobs in the national economy which the claimant could perform,
given his or her age, experience, education, and residual functional
capacity.
20 C.F.R. §§ 404.1520, 416.920 (footnote added). See also Moon v. Sullivan, 923 F.2d 1175,
1181 (6th Cir. 1990).
The Commissioner’s burden at the fifth step of the evaluation process can be satisfied by
relying on the medical-vocational guidelines, otherwise known as “the grid,” but only if the
claimant is not significantly limited by a nonexertional impairment, and then only when the

2

The Listing of Impairments is found at 20 C.F.R., Pt. 404, Subpt. P, App. 1.
6

claimant’s characteristics identically match the characteristics of the applicable grid rule.
Otherwise, the grid cannot be used to direct a conclusion, but only as a guide to the disability
determination. Id. In such cases where the grid does not direct a conclusion as to the claimant’s
disability, the Commissioner must rebut the claimant’s prima facie case by coming forward with
particularized proof of the claimant’s individual vocational qualifications to perform specific
jobs, which is typically obtained through vocational expert testimony. See Varley v. 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: (1) failed to properly evaluate the medical opinion
evidence of record; (2) relied on a deficient hypothetical question and therefore erroneously
found that Plaintiff could perform jobs identified by the VE; (3) improperly evaluated her
credibility; and (4) erroneously found that her obesity did not increase the severity of her pain or
functional limitations. Docket No. 12. 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,
7

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.
1994).
1. Evaluation of the Medical Opinion Evidence
Plaintiff first argues that the ALJ erroneously accorded “little weight” to the Medical
Source Statement (“MSS”) - Physical that was completed by Nurse Scher and signed by both Dr.
Hoooper and Nurse Scher. Docket No. 12, p. 14. Plaintiff contends that the ALJ’s discounting
that opinion because the opinion “was never completed by the treating source; only the first part
with yes or no questions was answered” was improper. Id. Plaintiff asserts that, even though Dr.
Hooper did not complete all of the MSS, the ALJ is not permitted to “disregard the part he did
complete,” because the Regulations require consideration of all medical opinions. Id., p. 15,
citing 20 C.F.R. § 404.1527(b). Plaintiff notes that the MSS was signed by both Dr. Hooper and
Nurse Scher, and Plaintiff asserts that the completed portion reflects a medical judgment about
her physical restrictions. Id. Plaintiff argues that the opined physical restrictions would preclude
work, and that the MSS - Physical should have been accorded “great if not controlling weight”
8

because it is not inconsistent with other substantial evidence in the record. Id.
Plaintiff additionally argues that the ALJ erroneously accorded the July 13, 2011
assessment of her mental restrictions “little weight.” Id., p. 16. Plaintiff maintains that the ALJ
should not have discounted the opined mental restrictions simply because the assessment had
been completed by Nurse Scher, since Dr. Hooper signed it, “thereby authenticating its contents.”
Id. Plaintiff argues that Dr. Hooper’s signature is enough to reflect that the stated opinion is his
opinion, and she further argues that her depression is established by multiple acceptable sources,
including Dr. Hooper, Dr. Gomez, and “multiple NTNEXSAPC’s.” Id., referencing TR 209-10,
241, 242, 245, 280-82, 290, 305-08.
Plaintiff reiterates her argument that the ALJ did not properly evaluate the medical
opinion evidence of record, stating: “Dr. Hooper’s opinion of [Plaintiff’s] mental and physical
restrictions is entitled to substantially greater weight than any other medical opinion; no other
physician or psychologist expressing an opinion saw [her] on more than one brief occasion for a
consultative exam, and the state-agency consultants did not see her at all or even review all of the
medical evidence.”
Defendant responds that the ALJ properly considered the opinions of record, including
those of Albert Gomez, M.D., S. Kathryn Steele, Psy.D, Beth Scher, N.P., and the State agency
medical consultants: Charles Settle, M.D., James Gregory, M.D., Diana Shearer, M.D., P. Jeffrey
Wright, Ph.D., and Jenaan Khaleeli, Psy.D. Docket No. 13, p. 5-7. Defendant notes that it is the
job of the ALJ to consider the evidence of record and resolve conflicts between the medical
opinions, and Defendant asserts that the ALJ in the case at bar properly did so. Id.
With regard to Plaintiff’s argument that the ALJ did not properly evaluate Dr. Hooper’s
9

opinion, Defendant responds that Plaintiff’s contention that the opinion at issue is, in fact Dr.
Hooper’s “ignores the medical records surrounding the opinions.” Id., p. 7-9. Specifically,
Defendant argues:
On July 16, 2011, Plaintiff presented to Dr. Hooper for the first
time since March 2011 asking the doctor to complete these forms
(Tr. 233, 280). Dr. Hooper refused and stated that Plaintiff needed
to “talk to the provider who has provided the most [sic] of her care
for her disability related issues” and specifically referred her to Ms.
Scher (Tr. 280). Dr. Hooper did not see Plaintiff again until July
2012 (Tr. 337). On July 13, 2011, Plaintiff presented to Ms. Scher
to complete the disability forms (Tr. 279). Based on this record, it
is clear that Ms. Scher and not Dr. Hooper completed the July 2011
opinions. As such, the ALJ properly found the opinions were
provided by an “other source (Tr. 20). Therefore, the opinions
could not be entitled to controlling weight.
In addition to properly identifying the source of the opinion, the
ALJ properly evaluated the opinions in accordance with agency
policy (Tr. 20). . . .
First, the ALJ properly recognized that Ms. Scher was Plaintiff’s
treating source (Tr. 20). See 20 C.F.R. § 404.1527(c)(2).
However, the ALJ properly noted that the physical assessment was
not fully completed (Tr. 20, 276-78). Ms. Scher answered several
yes/no questions, but when asked for specific limitations and an
explanation for the limitations, Ms. Scher left the form incomplete
(Tr. 276-78). Ms. Scher provided no explanation or support for the
yes/no responses (Tr. 275-76). . . . Plaintiff attempts rectify this
deficiency in her brief by citing to evidence that she claims
supports her allegations. See Pl.’s Br. At 15. However, the state
agency medical consultants considered the same evidence in
finding that Plaintiff could perform a range of light work (Tr. 268).
The physical assessment provides no support and, thus, the ALJ
properly gave the statement little weight (Tr. 20).
Id., p. 8-9 (footnotes omitted).
With regard to the evaluation of medical evidence, the Code of Federal Regulations
states:
10

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 opinion.
(1) Examining relationship. Generally, we give more
weight to the opinion of a source who has examined you than to
the opinion of a source who has not examined you.
(2) Treatment relationship. Generally, we give more
weight to opinions from your treating sources, since these sources
are likely to be the medical professionals most able to provide a
detailed, longitudinal picture of your medical impairment(s) and
may bring a unique perspective to the medical evidence that cannot
be obtained from the objective medical findings alone or from
reports of individual examinations, such as consultative
examinations or brief hospitalizations. If we find that a treating
source’s opinion on the issue(s) of the nature and severity of your
impairment(s) is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in your case record, we will give it
controlling weight. When we do not give the treating source’s
opinion controlling weight, we apply the factors listed in
paragraphs (d)(2)(i) and (d)(2)(ii) of this section, as well as the
factors in paragraphs (d)(3) through (d)(6) of this section in
determining the weight to give the opinion. . . .
(3) Supportability. The more a medical source presents
relevant evidence to support an opinion, particularly medical signs
and laboratory findings, the more weight we will give that opinion.
The better an explanation a source provides for an opinion, the
more weight we will give that opinion. . . .
(4) Consistency. Generally, the more consistent an opinion
is with the record as a whole, the more weight we will give to that
opinion.
(5) Specialization. We generally give more weight to the
opinion of a specialist about medical issues related to his or her
area of specialty than to the opinion of a source who is not a
specialist.
...
20 C.F.R. § 416.927(c) (emphasis added). See also 20 C.F.R. § 404.1527(c).
The ALJ must articulate the reasons underlying his decision to give a medical opinion a

11

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 Sixth Circuit has held that, “provided that they are based on sufficient medical data,
the medical opinions and diagnoses of treating physicians are generally accorded substantial
deference, and if the opinions are uncontradicted, complete deference.” Howard v. Comm’r of
Soc. Sec., 276 F.3d 235, 240 (6th Cir. 2002) (quoting Harris v. Heckler, 756 F.2d 431, 435 (6th
Cir. 1985)). If the ALJ rejects the opinion of a treating source, however, he is required to
articulate some basis for rejecting the opinion. Shelman v. Heckler, 821 F.2d 316, 321 (6th Cir.
1987). The Code of Federal Regulations defines a “treating source” as:
[Y]our own physician, psychologist, or other acceptable medical
source who provides you or has provided you, with medical
treatment or evaluation and who has, or has had, an ongoing
treatment relationship with you.
20 C.F.R. § 404.1502.
The MSS - Physical at issue was completed by Nurse Scher, and signed by both Nurse
Scher and Dr. Hooper. TR 275-78. In that MSS, Nurse Scher indicated that she had treated
3

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.
April 28, 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).
12

Plaintiff from 1963 until July 13, 2011, the date of the completion of the MSS - Physical. TR
276. She noted that Plaintiff suffers from “Hiatal hernia - confirmed by EGD; Back pain - mild
to moderate arthritis (3-11).” TR 275. When asked whether there are objective tests available to
quantify the precise levels of pain, fatigue, shortness of breath, or other subjective symptoms
suffered by Plaintiff, Nurse Scher answered “no.” Id. Nurse Scher also checked the boxes
indicating that: (1) Plaintiff had reported that her symptoms prevented her from working;
(2) Plaintiff’s symptoms were consistent with the impairments from which she suffers;
(3) Plaintiff’s stamina and endurance were limited to the extent that she would experience
difficulty working an 8-hour workday without several intermittent periods of rest, each exceeding
15 minutes; (4) Plaintiff would need to lie down intermittently during the course of an 8-hour
workday; (5) Plaintiff would need to alternate sitting and standing during the course of an 8-hour
workday; (6) Plaintiff experienced nervousness, depression, or anxiety, difficulty concentrating
or remaining attentive, and difficulty following or remembering directions; (7) It was reasonable
to expect significant variations in Plaintiff’s ability to sustain a consistent level of functioning
from day to day; (8) Plaintiff would experience good days and bad days resulting in absences
from work exceeding 2 days per month; and (9) Plaintiff’s condition is aggravated by, and her
symptoms exacerbated by, periods of physical and emotional stress. TR 275-76.
Nurse Scher left the remainder of the MSS - Physical blank. See TR 276-78. She
rendered no opinion regarding Plaintiff’s abilities to lift and carry, stand and walk, or sit. Id.
She further rendered no opinion regarding Plaintiff’s endurance, or Plaintiff’s ability to perform
any postural activities, such as climbing, balancing, stooping, crouching, kneeling, crawling, or
bending. Id. She did not indicate whether Plaintiff’s reaching, handling, feeling, pushing,
13

speaking, pulling, seeing, or hearing were affected by her impairments, nor did she indicate
whether Plaintiff’s impairments caused any environmental restrictions. Id. When asked to state
any other work-related activities that could be affected by or attributable to Plaintiff’s
impairment(s) and to indicate how the activities could be affected, Nurse Scher left the space
blank. Id.
As noted, the MSS was completed by Nurse Scher. Although a nurse is not among the
“acceptable medical sources” enumerated in 20 CFR 404.1513(a), the Regulations provide that
the ALJ may properly:
“use evidence from other sources to show the severity of your
impairment(s) and how it affects your ability to work. Other
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).
The ALJ in the instant action discussed the July 13, 2011 MSS - Physical as follows:
The undersigned notes that the physical residual functional
capacity questionnaire was never completed by the treating source;
only the first part with yes or no questions was answered. (Exhibit
9F). This document is given little weight and greater weight is
given to the State agency medical consultants’ assessments.
TR. 20.
As an initial matter, regardless of whether the MSS - Physical was completed by Dr.
Hooper or Nurse Scher, the ALJ is not bound to accept opinions provided via yes/no checkedbox questionnaires because those opinions, without explanation or documentation, are not
supported by medical findings, and the ALJ may properly reject the opinion of a treating
14

physician where that opinion is not sufficiently supported by medical findings. See, e.g., Combs
v. Commissioner, 459 F.3d 640, 652 (6th Cir. 2006)(en banc); Walters v. Commissioner, 127 F.3d
525, 530 (6th Cir. 1997); Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988).
As discussed above, Nurse Scher answered only the yes/no questions in the first part of
the questionnaire; she left the remainder of the MSS blank. See TR 257-76. Additionally, Nurse
Scher did not cite any medical records or evidence to support her opinions, nor did she in any
way explain those opinions. See id. For these reasons alone, the ALJ could properly accord the
MSS - Physical little weight.
Plaintiff also argues that the ALJ erroneously accorded little weight to her July 13, 2011
Ability to do Work-Related Activities - Mental form. Docket No. 12, p. 16. Plaintiff argues the
ALJ should not have discounted the opined mental restrictions simply because that form was
completed by Nurse Scher, because Dr. Hooper signed it, “thereby authenticating its contents,”
and because her depression is established by several acceptable sources, including Dr. Hooper,
Dr. Gomez and “multiple NTNEXSAPC’s.” Id.
As noted, Nurse Scher completed an Ability to do Work-Related Activities - Mental form
regarding Plaintiff on July 13, 2011. TR 273-74. In that assessment, Nurse Scher opined that
Plaintiff had “limited, but satisfactory” abilities to: (1) sustain an ordinary routine without special
supervision; (2) ask simple questions or request assistance; (3) be aware of normal hazards and
take appropriate precautions; and (4) adhere to basic standards of neatness and cleanliness. Id.
She further opined that Plaintiff had “seriously limited, but not precluded” abilities to:
(1) remember work-like procedures; (2) maintain regular attendance and be punctual within
customary, usually strict tolerances; (3) accept instructions and respond appropriately to criticism
15

from supervisors; (4) get along with co-workers or peers without unduly distracting them or
exhibiting behavioral extremes; (5) respond appropriately to changes in a routine work setting;
and (6) maintain socially appropriate behavior. Id.
Nurse Scher additionally opined that Plaintiff was “unable to meet competitive standards”
in the following areas: (1) understanding and remembering very short and simple instructions;
(2) carrying out very short and simple instructions; (3) working in coordination with or proximity
to others without being unduly distracted; (4) making simple work-related decisions; (5) dealing
with normal work stress; (6) setting realistic goals or making plans independently of others;
(7) interacting appropriately with the general public; and (8) traveling in unfamiliar places. Id.
She further opined that Plaintiff had “no useful ability to function” in these areas: (1) maintaining
attention for two hour segments; (2) completing a normal workday and work week without
interruptions from psychologically based symptoms; (3) performing at a consistent pace without
an unreasonable number and length of rest periods; (4) understanding and remembering detailed
instructions; (5) carrying out detailed instructions; (6) dealing with stress of semiskilled and
skilled work; and (7) using public transportation. Id. Nurse Scher also opined that Plaintiff was
unable to manage benefits in her own best interest and would be absent from work more than 4
days per month. Id.
As support for her findings, Nurse Scher stated simply:
Because of patient’s depression, pt is unable to concentrate and
focus and follow simple instructions. Pt is just so depressed that
holding a job would not be feasible.
TR 273.
When asked to describe any additional reasons why Plaintiff would have difficulty
16

working at a regular job on a sustained basis, Nurse Scher answered: “None.” TR 274.
The ALJ discussed Nurse Scher’s July 13, 2011, Ability to do Work-Related Activities Mental form regarding Plaintiff, stating:
In July 2011, a nurse practitioner completed a form regarding the
claimant’s alleged mental impairments and their impact on her
ability to perform substantial gainful activity. (Exhibit 8F). The
undersigned has given little weight to the conclusion that, due to
the claimant’s depression, she is unable to concentrate, focus,
follow simple instructions and hold a job. This conclusion is
unsupported by the claimant’s longitudinal treatment notes and the
remaining medical evidence of record. The undersigned notes, as
well, that a nurse practitioner is not an “acceptable medical source”
pursuant to SSR 06-03p.
TR 20 (emphasis added).
As to the remaining opinion evidence concerning Plaintiff’s mental impairments, the ALJ
stated:
The claimant underwent a mental status examination with S.
Kathryn Steele, Psy. D., in April 2011, as well. (Exhibit 4F). She
reported problems with “stress” and depression, which she
attributed to financial worries since being “laid off” from her job.
The claimant indicated that she had been prescribed medication by
her primary care physician but that this medication was ineffective.
She denied a diagnosis for a mood disorder, a history of outpatient
mental health treatment, or a history of psychiatric hospitalization.
The claimant’s mental status examination was essentially normal
despite the claimant’s complaints of restricted activities of daily
living. The claimant’s assertion that she spends most of each day
sitting around the house due to not feeling well is not supported by
clinical findings or treatment notes. She stated that a current hernia
prevents her from engaging in activity and makes her embarrassed
to do things in public. However, the claimant acknowledged that
she does shop for groceries once weekly and cooks meals twice
weekly. The claimant denied performing household chores but
stated that she can take care of her own personal needs. The
claimant drove herself to her appointment and stated that she
drives as needed without difficulty. On presentation, the
17

claimant’s affect was appropriate and her mood appeared
depressed and sad. The claimant’s speech was within normal
limits, her thinking was organized, and there was no evidence of
delusions. Thought content appeared pessimistic and self-pitying.
While the claimant reported suicidal ideation two months prior, she
denied current suicidal thoughts. The claimant’s insight and
judgment both appeared to be good. The claimant reported daily
crying spells related to her medical health and financial difficulties.
Following testing, Dr. Steele concluded that the claimant is
functioning within the average range of intelligence and that her
depressive symptoms appear related to her reported medical
concerns. Of note, Dr. Steele stated that the claimant does not
appear to meet the criteria for a mood disorder but nonetheless she
assigned the claimant with adjustment disorder with depressed
mood. The claimant was assigned a GAF of 60. The undersigned
notes that the American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders: DSM-IV 34 (4th ed., text
revision 2000) indicates that a GAF score of 51-60 is indicative of
moderate symptoms or moderate difficulty in social, occupational
or school functioning.
Dr. Steele further indicated that the claimant would not have
difficulty understanding and remembering detailed directions and
noted that the claimant was able to understand and participate in a
complex conversation without difficulty. The claimant would not
have difficulty carrying out simple and/or complex instructions and
is capable of completing work tasks in an efficient and timely
manner. As far as the claimant’s interpersonal relationships, Dr.
Steele noted that the claimant was, for the most part cooperative
with the examiner and is unlikely to have difficulties interacting
with co-workers or supervisors on an appropriate level. The
claimant would be able to respond appropriately to changes in
workplace settings.
The undersigned has given this assessment some weight but has
given the claimant’s subjective complaints the benefit of the doubt
in limited her to simple, repetitive, routine tasks with detailed but
not complex instructions, in limiting her interaction with the
general public, and in limiting her to occasional change in the work
setting.
TR 19-20.
18

The ALJ also noted:
While the undersigned finds that the medical opinions of the state
agency medical consultants are overly expansive in light of the
objective medical evidence of record, their opinions also support a
finding of “not disabled” and their opinions do deserve some
weight, particularly in a case like this in which there exist a
number of other reasons to reach similar conclusions. (Exhibits
12F and 13F).
TR 20.
The ALJ further discussed Plaintiff’s mental impairments, including her depression, as
follows:
In activities of daily living, the claimant has mild restriction. The
claimant cares for herself, prepares simple meals, and shops for
groceries. She also takes care of her grandchildren as needed.
(Exhibit 4F).
In social functioning, the claimant has moderate difficulties. While
the claimant stated that she tends to get angry, she is able to engage
in social activity appropriately and, as mentioned above, enjoys
caring for and spending time with her grandchildren. (Exhibit
12F).
With regard to concentration, persistence or pace, the claimant has
moderate difficulties. The claimant has some limitation in her
work-like duties due to these difficulties but is able to perform a
reduced range of light work.
As for episodes of decompensation, the claimant has experienced
no episodes of decompensation, which have been of extended
duration.
Because the claimant’s mental impairment does not cause at least
two “marked” limitations or one “marked” limitation and
“repeated” episodes of decompensation, each of extended duration,
the “paragraph B” criteria are not satisfied.
The undersigned has also considered whether the “paragraph C”
criteria are satisfied. In this case, the evidence fails to establish the
19

presence of the “paragraph C” criteria.
The undersigned notes that the claimant has declined a
recommendation to see a psychiatrist, stating that it has not helped
in the past. (Exhibit 10F). Consultative examination results reflect
that the claimant put forth minimal effort on some tasks, reducing
her credibility. Currently, the claimant is not receiving any
treatment from a mental health professional, indicating that her
symptoms are not as severe as alleged.
. . . The record reflects that the claimant . . . retains the mental
capacity to perform the demands of low stress work. . . .
...
While the claimant has complained of depression, her reluctance to
seek treatment indicates that her condition is not as disabling as
alleged. In June 2011, the claimant stated that the Celexa
prescribed by her family doctor had not really helped her
depression but she firmly expressed that she did not wish to be
referred to a psychologist or a psychiatrist for mental health
treatment. (Exhibit 10F). . . . While the claimant complained
generally of depression in October 2012, she was alert and oriented
in all spheres on examination, was cooperative and had intact
cognitive function with normal mood and affect and good insight
and judgment. (Exhibit 18F).
TR 15-16, 18.
Ultimately, the ALJ concluded:
In sum, in light of the claimant’s status-post hernia repair,
degenerative disc disease and arthritis, the undersigned has limited
the claimant to occasional stooping, kneeling, crouching, and
crawling, as well as climbing ramps and stairs. The claimant can
never climb ladders, ropes, and scaffolds. The undersigned has
also considered the claimant’s depressive disorder in limiting her
to simple, repetitive, routine tasks with detailed but not complex
instructions, and in limiting her to gradual and infrequent changes
in the workplace setting with only occasional interaction with the
general public. However, due to the aforementioned
inconsistencies, particularly the relatively benign physical
examinations and the extent of the claimant’s daily activities, the
20

undersigned cannot find the claimant’s allegation that she is
incapable of all work activity to be credible.
TR 20.
As can be seen in the quoted passages above, and as will be discussed in greater detail in
the statements of error below, the ALJ in the instant action discussed the medical evidence of
record, including the results of Plaintiff’s MRIs, lab tests, etc., the treatment records of Plaintiff’s
primary care treating providers, Dr. Wayne Hooper and his nurse, Nurse Scher, the medical
records from the Sumner Medical Group and the Sumner Regional Medical Group, and the
opinions of the State agency medical consultants. TR 15-20, citing TR 208-32, 233-38, 239-42,
243-46, 273-74, 279-85, 287-300, 301-04, 311-33, 334-349.
When reviewing the evidence of record, the ALJ must consider all medical opinions and
determine the weight to be accorded to each. 20 C.F.R. § 416.927(c). When the opinions are
inconsistent with each other, the final decision regarding the weight to be given to the differing
opinions lies with the Commissioner. 20 C.F.R. § 416.927(e)(2). Because the ALJ in the instant
action considered all of the medical opinions (as well as the medical and testimonial evidence) of
record and articulated the weight accorded to each and the reasons therefore, the ALJ could
properly accord little weight to Plaintiff’s MSS - Physical and MSS - Mental. Plaintiff’s
arguments on this point fail.
2. ALJ’s Hypothetical Question and Reliance on the Answer Thereto
Plaintiff argues that the hypothetical questions the ALJ posed to the VE failed to include
several of the mental and physical restrictions that the VE had opined would preclude work.
Docket No. 12, p. 17-18. Plaintiff contends that if the hypothetical questions posed are flawed,

21

the ALJ cannot rely on the VE’s answer to those hypotheticals as substantial evidence. Id.
Plaintiff asserts, therefore, that the ALJ’s finding that there were a significant number of jobs in
the national economy that Plaintiff could perform was not supported by substantial evidence. Id.
Defendant responds that the ALJ’s hypothetical questions posed to the VE properly
incorporated the impairments and limitations he found credible, and that as such, the ALJ could
rely upon the VE’s answers that there was work existing in the national economy that Plaintiff
could perform. Docket No. 13, p. 15-16.
As explained above, the Commissioner has the burden at step five of the sequential
evaluation process of establishing the claimant’s ability to work by proving the existence of a
significant number of jobs in the national economy that the claimant could perform, given his or
her age, experience, education, and residual functional capacity. 20 C.F.R. §§ 404.1520,
416.920. See also Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990). The Commissioner’s
burden at step five can be satisfied by relying on the grid rules only if Plaintiff is not significantly
limited by nonexertional impairments, such as mental limitations, manipulative limitations or
environmental limitations. Abbot v. Sullivan, 905 F.2d 918, 926 (6th Cir. 1990). In the presence
of nonexertional limitations that would preclude the application of the grid, “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
vocational expert in response to a hypothetical question as substantial evidence of the existence
of a significant number of jobs that the claimant is capable of performing as long as the
hypothetical question accurately represents the claimant’s credible limitations. See Varley, 820
22

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 posed the following hypothetical questions to the VE and
received the following responses:
Q

Okay. Let me ask you a couple of hypothetical questions,
and for my first hypothetical question, I want you to assume
a person of the claimant’s age, education, and the work past
[sic] just described. A good portion of this RFC - - I’m
going to read it to you, but it’s coming from the DES, for
this first one, limits at 6F and with some additional
limitations in her - - so assume this person would be
restricted to light exertional level work with only
occasional balancing, stooping, kneeling, crouching, and
crawling, and occasionally climbing ramps and stairs; no
climbing ladders, ropes, or scaffolding; would need a job
that involves simple, routine, repetitive tasks and maybe
some lower level detail, but not complex type of work
tasks; would need a job that gradual [sic] and infrequent
workplace changes; and only occasional contact with the
general public. It sounds to me like the past work would be
ruled out - -

A

That’s correct, Your Honor.

Q

- - even at the light level just because of the mental health
limitations; is that correct?

A

That is correct.

Q

With those limitations would there be any other jobs
available?

A

Well, let me offer you figures for unskilled, light work that
would allow for the restrictions you’ve noted. They include
general office clerks numbering approximately 4,200 in the
state economy and approximately 230,000 in the national
economy. A representative DOT code number for office
clerks is 222.587-038. A second example is office helpers.
They number approximately 2,000 in the state and
23

approximately 115,000 in the nation. A sample DOT code
number is 239.567-010. A third example of unskilled, light
work is order clerks. They number approximately 5,000 in
the state and approximately 215,000 in the nation. A
representative DOT code number is 229.587-018.
Q

Now, using Exhibit 8F as, as our basis - - let’s start with
this. That - - Dr. Hooper, in that form, indicated that the
claimant would miss more than four days of work per
month. If that were a limitation added to the limitations
that I just described, would that allow for any of the jobs
that I named or any other job in the national economy?

A

No, Your Honor. That’s well over the allowable
absenteeism rate found in competitive employment.
...

Q

And it, it, it indicates some problems with concentration
and pace, but let’s assume this. If a person was unable to
sustain attention, concentration, persistence, and pace for
let’s, lt’s say periods of up to one hour throughout an eighthour workday, would these jobs that I named - - or that you
named in hypo number one exist?

A

No, Your Honor.

Q

Would any job allow for those kinds of limitations?

A

No, that would preclude work.

Q

And I think the individual - - or the claimant - - described
some - - the need to elevate her legs throughout the day at
waist level. Would any job, at the light or less level, with
the limitations we named, accommodate those limitations?

A

No, Your Honor. Even sedentary work is precluded with
the need to elevate one’s lower extremities to that height.

TR 55-57.
Plaintiff’s counsel then asked the VE the following questions, and received the following

24

answers:
ATTY: . . . The need to lie down intermittently during the
workday would be inconsistent with competitive work,
would it not?
VE:

That really is incompatible with work so it would preclude
all work.

ATTY: If an individual were required to have rest breaks
exceeding those normally tolerated, that is, 15 minutes
every two hours, would they be able to maintain
competitive employment?
VE:

No.

TR 57.
As can be seen, the ALJ posed several hypothetical questions to the VE, each based on
limitations contained in different Exhibits, and each containing both exertional and nonexertional
limitations. See TR 55-57. Although Plaintiff argues that the ALJ’s hypothetical questions
failed to include several of the mental and physical restrictions that the VE had opined would
preclude work, the ALJ posed different hypothetical questions with different combinations of
impairments. See id. Furthermore, the ALJ need only accept or include the limitations he deems
credible. See, e.g., Cline v. Shalala, 96 F.3d 146, 150 (6th Cir. 1996); Stanley v. Secretary, 39
F.3d 115, 118-19 (6th Cir. 1994); Blacha v. Secretary, 927 F.2d 228, 231 (6th Cir. 1990).
As discussed passim, ultimately, the ALJ is charged with examining and weighing the
evidence, evaluating Plaintiff’s credibility, and determining Plaintiff’s limitations and her
resultant residual functional capacity. After considering the medical and testimonial evidence of
record, the ALJ in the instant action determined that Plaintiff retained the residual functional
capacity to perform light work as defined in 20 CFR 404.1567(b). TR 16. Specifically, the ALJ
25

found that Plaintiff could lift and carry up to 20 pounds occasionally and 10 pounds frequently;
stand, walk, and sit for 6 hours in an 8-hour day; occasionally stoop, kneel, crouch, and crawl;
and occasionally climb ramps and stairs but never climb ladders, ropes, or scaffolds. Id. The
ALJ also found that Plaintiff was limited to simple, repetitive, routine tasks with detailed but not
complex instructions; could have only gradual and infrequent changes in the workplace setting;
and could have only occasional interaction with the general public. Id.
The VE testified that an individual with the above residual functional capacity limitations
would be unable to perform Plaintiff’s past relevant work, but would be able to make a
successful adjustment to other work that exists in significant numbers in the national economy,
including work as a general office clerk (approximately 4,200 in the state economy and
approximately 230,000 in the national economy), office helper (approximately 2,000 in the state
and approximately 115,000 in the nation), and/or order clerk (approximately 5,000 in the state
and approximately 215,000 in the nation).
Because the ALJ posed hypothetical questions that accurately represented Plaintiff’s
credible exertional and nonexertional limitations, the ALJ properly relied on the VE’s answers to
those hypothetical questions 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.
3. Plaintiff’s Credibility
Plaintiff next argues that the ALJ improperly discounted her credibility. Docket No. 12,
p. 18-21. Plaintiff notes that the ALJ’s discussion of her credibility is not found in one part of
26

his decision, but rather, is “interspersed at various points throughout.” Id., p. 18. Plaintiff takes
issue with each point raised by the ALJ, stating:
The ALJ first notes that [Plaintiff] declined to see a
psychiatrist, stating it had not helped in the past (Tr. 16).
However, the evidence does not reflect that Dr. Hooper made a
referral to a psychiatrist or psychologist; he merely raised it as a
possibility (Tr. 281). Moreover, Dr. Hooper was already
prescribing [Plaintiff] an anti-depressant (Celexa), precisely what a
psychiatrist would do. Id. Finally, [Plaintiff] was financially
strapped, as [she] testified her income was necessary to pay the
household expenses and that it was very difficult financially to live
on her husband’s income (Tr. 48). The simple fact is that [she]
could not afford costly psychiatric or psychological treatment.
The ALJ next complained about [Plaintiff’s] “minimal
effort” on cognitive tests (Tr. 16). However, she is does not [sic]
allege cognitive deficiencies: she is an intelligent woman who
through persistence and hard work advanced through the ranks of
her employer from material handler to lead operator to shipping
clerk to accounting before finally arriving at shipping and receiving
manager (Tr. 41). [Plaintiff] is depressed - she is not mentally
deficient.
The ALJ next challenged the alleged inconsistency between
[Plaintiff’s] testimony as to whether she stopped working due to
her impairments or to work force reduction (Tr. 17). . . . [T]here is
no inconsistency between [Plaintiff’s] testimony and earlier
statements as to why she stopped working: she stopped working
because her employer laid her off when she could no longer do her
job satisfactorily (Tr. 36-38, 157). . . .
. . . [T]he ALJ concluded that the fact that [Plaintiff] cared
for her grandchildren occasionally was inconsistent with her
alleged functional limitations (Tr. 17). However, this activity is in
no way comparable to competitive fulltime [sic] employment, as
she cared for three of the grandchildren only two days a week for
three hours each time while her daughter attended school and for
the fourth only briefly until her son got his act together, her
husband was available to help her, and she engaged in this activity
for only two months (Tr. 44-45). . . .

27

Although not framed specifically in terms of credibility, the
ALJ cites [Plaintiff’s] receipt of unemployment benefits as
evidence that “she was not totally disabled as she alleged” (Tr. 14).
. . . This suggests the ALJ employed an improper legal standard in
evaluating whether [Plaintiff] was disabled.
Id.
Plaintiff argues that the ALJ failed to consider her limited mobility, limited daily
activities, the fact that her husband performs most of the household chores, her need to elevate
her legs much of the day because of pain and swelling in her legs and feet, the fact that she is
sometimes not able to afford her medication, and the objective medical evidence revealing a
herniated disc at L4-5 with moderate stenosis coupled with obesity. Id., p. 21, referencing TR
47, 49-52, 325. Plaintiff further argues that the ALJ failed to consider her “exemplary work
history (Tr. 135-136) and the fact that she returned to her job following multiple abdominal
surgeries (Tr. 42).” Id. Plaintiff contends that the ALJ should have considered these things when
evaluating her credibility. Id.
Defendant responds that the ALJ properly assessed Plaintiff’s credibility and determined
that Plaintiff’s allegations regarding her limitations were not totally credible because those
allegations were inconsistent with the record as a whole, including the opinion evidence, her
medical treatment, and the objective medical evidence. Docket No. 13, p. 4-5. Defendant argues
that the ALJ appropriately evaluated the medical and testimonial evidence of record, identified
many inconsistencies in the record, rendered a reasoned decision that was supported by
substantial evidence, and articulated the reasons for his decision. Id., passim.
The Sixth Circuit has set forth the following criteria for assessing a plaintiff’s subjective
allegations:
28

[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, 853 (6th Cir. 1986) (quoting S. Rep.
No. 466, 98th Cong., 2d Sess. 24) (emphasis added); see also 20 C.F.R. §§ 404.1529, 416.929
(“[S]tatements about your pain or other symptoms will not alone establish that you are
disabled....”); Moon v. Sullivan, 923 F.2d 1175, 1182-83 (6th Cir. 1990) (“[T]hough Moon
alleges fully disabling and debilitating symptomology, the ALJ, may distrust a claimant’s
allegations...if the subjective allegations, the ALJ’s personal observations, and the objective
medical evidence contradict each other.”). Moreover, “allegations of pain...do not constitute a
disability unless the pain is of such a debilitating degree that it prevents an individual from
engaging in substantial gainful activity.” Bradley v. 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 C.F.R. § 404.1529(c)(2)). After evaluating these factors in conjunction with the
evidence in the record, and by making personal observations of the claimant at the hearing, an
ALJ may determine that a claimant’s subjective complaints of pain and other disabling symptoms
29

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).
After considering the evidence of record, the ALJ in the instant action found that
Plaintiff’s “medically determinable impairments could reasonably be expected to cause some of
her alleged symptoms; however, [her] statements concerning the intensity, persistence and
limiting effects of these symptoms are generally not credible for the reasons explained in this
decision.” TR 17. In so finding, the ALJ discussed Plaintiff’s credibility as follows:
. . . The undersigned notes that following her alleged onset date,
the claimant received unemployment benefits, which necessarily
implies that she was not totally disabled as alleged. In order to
receive state unemployment benefits, an individual must certify
that she is able to work, is available for full-time work, is willing to
accept suitable work if offered, and is actively seeking full-time
work each week. (Exhibit 2D).
...
The undersigned notes that the claimant has declined a
recommendation to see a psychiatrist, stating that it has not helped
in the past. (Exhibit 10F). Consultative examination results reflect
that the claimant put forth minimal effort on some tasks, reducing
her credibility. Currently, the claimant is not receiving any
treatment from a mental health professional, indicating that her
symptoms are not as severe as alleged.
...
At her hearing, the claimant first testified about her prior job
duties. She stated that, as a shipping supervisor, she had physical
duties, such as moving containers, as well as customer service
responsibilities. When asked how her job came to an end, the
claimant stated that she became ill and was no longer able to
perform her required duties. When the undersigned asked the
claimant about paperwork indicating that she was let go due to a
30

reduction in job force rather than to illness, the claimant admitted
that there was a period when personnel was being let go but that, at
the time she was let go, she was the only one. . . . When asked
about July 2009 treatment notes in which she reported taking care
of three children under 10, the claimant responded that she helped
care for her grandchildren (a nine-year old and four-year-old twins)
when her daughter went back to school. . . . On an average day, the
claimant alleged that she spends 6-7 hours with her feet elevated to
waist level.
There is some inconsistency in the testimony as to whether the
claimant stopped performing work due to her impairments or to
work-force reduction. However, the undersigned notes that as the
claimant is found not to be disabled, the discrepancy in her
testimony serves only as a further limitation to her credibility.
. . . The Administrative Law Judge recognizes that childcare, by its
very nature, requires a certain degree of lifting, carrying, standing,
walking, pushing, pulling, bending, and stooping. Such activity is
inconsistent with the functional limitations alleged by the claimant.
...
In March 2011, the claimant did complain of low back
“discomfort” with some radiation into the buttocks and legs. She
reported that she has to sit after standing for more than 10 minutes
at a time and cannot sleep. (Exhibit 2F). On examination, the
claimant had negative straight leg raising and reflexes were brisk in
the knees and ankles. No motor weakness was seen. The claimant
did complain of tenderness on palpation to her lower spine. Dr.
Wayne Hooper assessed the claimant with likely osteoarthritis,
with a possible inflammatory component. Images takes [sic] of the
claimant’s lumbar spine at that time showed mild to moderate
lower lumbar spine degenerative changes with disc space
narrowing and osteophyte formation. Images taken of the
claimant’s spine in November 2011 showed some degenerative
changes with herniation at L4-L5, but no stenosis or nerve root
impingement was noted. (Exhibit 17). October 2012 treatment
notes indicate that the claimant had normal strength in all
extremities as well as full range of motion. (Exhibit 18F). The
claimant had normal gait.
...
31

While the claimant has complained of depression, her reluctance to
seek treatment indicates that her condition is not as disabling as
alleged. In June 2011, the claimant stated that the Celexa
prescribed by her family doctor had not really helped her
depression but she firmly expressed that she did not wish to be
referred to a psychologist or a psychiatrist for mental health
treatment. (Exhibit 10F). At that time, the claimant indicated that
Cymbalta had improved her back pain. While the claimant
complained generally of depression in October 2012, she was alert
and oriented in all spheres on examination, was cooperative and
had intact cognitive function with normal mood and affect and
good insight and judgment. (Exhibit 18F).
...
Dr. Albert Gomez performed a consultative examination on the
claimant in April 2011. (Exhibit 3F). . . . [The claimant]
complained of low back pain and stated that is had [sic] been
present for seven years, although the claimant did not complain of
back discomfort to her long-time primary care physician until
March 2011. . . . The claimant asserted that she last worked in
2008, inconsistent with her testimony and earnings report.
On examination, the claimant was alert and oriented in all spheres,
and appeared to be in no acute distress. She presented with a
normal gait and was able to get on and off the examination table
without difficulty. Moderate tenderness to palpation was noted on
the claimant’s cervical spine, but range of motion was normal. The
claimant had full range of motion in both shoulders; the claimant
complained of moderate tenderness to palpation of the left
shoulder. Full range of motion was noted bilaterally in the
claimant’s elbows, wrists, hips, knees, and ankles, and the claimant
had normal grip strength. Motor strength was 5/5 in the upper and
lower extremities. Deep tendon reflexes were normal, as was
sensation. Moderate tenderness was noted on palpation to the
claimant’s lumbar spine. Full range of motion was seen except for
slightly limited flexion. The claimant was able to tandem walk,
heel walk, and toe walk normally, and could squat and stand on
one leg. Dr. Gomez assessed the claimant with diabetes, chronic
low back pain, degenerative joint disease and depression and
concluded that the claimant would be able to occasionally lift 2030 pounds and can stand or sit for at least six hours in an eight32

hour workday, with normal breaks. As this assessment and
minimal findings are consistent with the remaining medical
evidence of record and with the residual functional capacity set
forth above, the undersigned has given it significant weight. Of
note, Dr. Gomez placed no functional limitations on the claimant.
The claimant underwent a mental status examination with S.
Kathryn Steele, Psy.D. in April 2011, as well. (Exhibit 4F). She
reported problems with “stress” and depression, which she
attributed to financial worries since being “laid off” from her job.
. . . The claimant’s mental status examination was essentially
normal despite the claimant’s complaints of restricted activities of
daily living. The claimant’s assertion that she spends most of each
day sitting around the house due to not feeling well is not
supported by clinical findings or treatment notes. She stated that a
current hernia prevents her from engaging in activity and makes
her embarrassed to do things in public. However, the claimant
acknowledged that she does shop for groceries once weekly and
cooks meals twice weekly. The claimant denied performing
household chores but stated that she can take care of her own
personal needs. . . .
...
The undersigned . . . has given the claimant’s subjective
complaints the benefit of the doubt in limiting her to simple,
repetitive, routine tasks with detailed but not complex instructions,
in limiting her interaction with the general public, and in limiting
her to occasional change in the work setting.
...
In sum, in light of the claimant’s status-post hernia repair,
degenerative disc disease and arthritis, the undersigned has limited
the claimant to occasional stooping, kneeling, crouching, and
crawling, as well as climbing ramps and stairs. The claimant can
never climb ladders, ropes, and scaffolds. The undersigned has
also considered the claimant’s depressive disorder in limiting her
to simple, repetitive, routine tasks with detailed but not complex
instructions, and in limiting her to gradual and infrequent changes
in the workplace setting with only occasional interaction with the
general public. However, due to the aforementioned
inconsistencies, particularly the relatively benign physical
examinations and the extent of the claimant’s daily activities, the
33

undersigned cannot find the claimant’s allegation that she is
incapable of all work activity to be credible.
TR 14-20.
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. It is clear from the ALJ’s articulated rationale that, although there is evidence
which could support Plaintiff’s claims, the ALJ noted inconsistencies between the evidence and
Plaintiff’s allegations, and chose to rely on evidence that was contrary to Plaintiff’s subjective
complaints. 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

34

F.2d at 975.
As discussed above, the ALJ, after considering the medical and testimonial evidence of
record, found that Plaintiff’s “medically determinable impairments could reasonably be expected
to cause some of her alleged symptoms; however, [her] statements concerning the intensity,
persistence and limiting effects of these symptoms are generally not credible for the reasons
explained in this decision.” TR 17. The ALJ’s decision clearly articulates his reasons for
discounting Plaintiff’s credibility and the Regulations do not require more. The ALJ observed
Plaintiff during her hearing, assessed the medical records, reached a reasoned decision, and
articulated the basis for that 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.
4. Evaluation of Plaintiff’s Obesity and its Effects
Finally, Plaintiff argues that the ALJ erroneously found “no convincing evidence in the
record that obesity increases the severity or functional limitations of any other impairment.”
Docket No. 12, p. 21, quoting TR 15. Plaintiff argues that she is obese and that the ALJ so
found, that she has a documented herniated lumbar disc with moderate stenosis as well as
osteoarthritis and degenerative lumbar disc disease, and that she is in pain. Id. Plaintiff asserts,
“Common sense and human experience, not to mention human anatomy, compels a conclusion
that an obese person with a herniated disc, osteoarthritis, and degenerative lumbar disc disease is
going to experience more severe pain and functional limitations than a non-obese person,
notwithstanding the ALJ’s finding to the contrary.” Id., p. 22.
Defendant responds that the ALJ considered Plaintiff’s obesity in accordance with SSR
35

02-1p and properly determined that Plaintiff’s obesity did not increase the severity or functional
limitations of any other impairment. Docket No. 13, p. 12, citing TR 15. Defendant argues that
Plaintiff’s “common sense” argument is contrary to agency policy and ignores the medical
opinions of record. Id.
SSR 02-1p addresses the evaluation of obesity, and states in relevant part as
follows:
We will consider obesity in determining whether:
- The individual has a medically determinable impairment. . . .
- The individual’s impairment(s) is severe. . . .
- The individual’s impairment(s) meets or equals the requirements
of a listed impairment in the listings. . . .
- The individual’s impairment(s) prevents him or her from doing
past relevant work and other work that exists in significant
numbers in the national economy. . . .
...
. . . [W]e will also consider the possibility of coexisting or related
conditions, especially as the level of obesity increases . . .
...
However, we will not make assumptions about the severity or
functional effects of obesity combined with other impairments.
Obesity in combination with another impairment may or may not
increase the severity or functional limitations of the other
impairment. We will evaluate each case based on the information
in the case record.
...
Obesity can cause limitation of function. The functions likely to be
limited depend on many factors, including where the excess weight
is carried. . . . The combined effects of obesity with other
impairments may be greater than might be expected without
obesity. . .
...
. . . When we identify obesity as a medically determinable
36

impairment . . ., we will consider any functional limitations
resulting from the obesity in the RFC assessment, in addition to
any limitations resulting from any other physical or mental
impairments that we identify.
The ALJ in the case at bar found that Plaintiff had the following severe impairments:
depressive disorder, degenerative disc disease, status-post hernia with repair, diabetes mellitus,
Type II, obesity, and arthritis. TR 14. The ALJ found that these impairments “more than
minimally impact” Plaintiff’s ability to perform work-related activities. Id. Discussing
Plaintiff’s obesity specifically, the ALJ stated:
As of October 2012, the claimant weighed 200 pounds at 64 inches
tall. (Exhibit 18F). Although there is no specific listing for
evaluating the claimant’s obesity under the Listing of Impairments,
the undersigned has considered Social Security Ruling 02-01.
However, there is no convincing evidence in the record that obesity
increases the severity or functional limitations of any other
impairment. Therefore, the criteria for this Ruling are not met.
TR 15.
As discussed above, the ALJ in the case at bar has thoroughly considered the medical and
testimonial evidence of record, including that related to Plaintiff’s obesity. In so doing, he found
that Plaintiff’s obesity was a severe impairment, but not severe enough to meet the criteria for
SSR 02-01. This determination is within his province.
Plaintiff’s argument that “Common sense and human experience, not to mention human
anatomy, compels a conclusion that an obese person with a herniated disc, osteoarthritis, and
degenerative disc disease is going to experience more severe pain and functional limitations than
a non-obese person, notwithstanding the ALJ’s finding to the contrary” (Docket No. 12, p. 22),
ignores the fact that the Social Security Act and Regulations mandate that the ALJ’s decision

37

must be based on the medical and testimonial evidence of record and supported by substantial
evidence. Plaintiff’s obesity is part of the record, as are her subjective complaints and reported
limitations. Accordingly, the sources rendering the medical opinion evidence of record were
aware of Plaintiff’s obesity and reported limitations, as well as her subjective complaints as
reported in her treatment records and examinations, and yet none opined that Plaintiff’s obesity
increased the severity or functional limitations of any other impairment as necessary under the
Act, Regulations, listings, or SSRs.
SSR 02-01 states in part:
[W]e will not make assumptions about the severity or functional
effects of obesity combined with other impairments. Obesity in
combination with another impairment may or may not increase the
severity or functional limitations of the other impairment. We will
evaluate each case based on the information in the case record.
The ALJ in the case at bar has done just that; he has evaluated Plaintiff’s obesity and its
impact based on the information in the case record, including, inter alia, the objective medical
evidence and the opinion evidence, and found “no convincing evidence in the record that obesity
increases the severity or functional limitations of any other impairment” to a level that satisfies a
listing, SSR 02-01, or results in disability, as defined in the Act or Regulations. The ALJ
complied with SSR 02-01; Plaintiff’s argument fails.
IV. RECOMMENDATION
For the reasons discussed above, the undersigned recommends that Plaintiff’s Motion for
Judgment on the Administrative Record be DENIED, and that the decision of the Commissioner
be AFFIRMED.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
38

days after service of this Report and Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party opposing said objections shall have
fourteen (14) days after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985),
reh’g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72.

________________________________
E. CLIFTON KNOWLES
United States Magistrate Judge

39