Williams v. Social Security Administration
MEMORANDUM OPINION OF THE COURT. Signed by Senior Judge Thomas Wiseman on 4/18/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
SALLIE R. WILLIAMS,
Pending before the court is the plaintiff Sallie R. Williams' Motion for Judgment on the
Administrative Record (ECF No. 10), to which the defendant Social Security Administration
(SSA) has responded (ECF No. 16). The plaintiff filed a reply to the SSA's response. (ECF No.
17.) Upon consideration of the parties' briefs and the transcript of the administrative record
(ECF No. 8),1 and for the reasons given below, the plaintiff's Motion for Judgment on the
Administrative Record will be DENIED and the decision of the SSA will be AFFIRMED.
I. Magistrate Judge Referral
To avoid any further delay in the resolution of this matter, the court will VACATE the
referral to the magistrate judge.
The plaintiff filed an application for disability insurance benefits under Title II of the
Social Security Act on March 30, 2010, alleging disability onset as of September 11, 2009, due
to a stroke and high blood pressure. (Tr. 129.) Her claim to benefits was denied at the initial and
I Referenced hereinafter by "Tr." followed by a page number which can be found at the lower right corner
of the transcript.
reconsideration stages of state agency review. The plaintiff subsequently requested de novo
review of her case by an Administrative Law Judge (ALJ). The ALJ heard the case on August 3,
2012, when the plaintiff appeared with counsel and gave testimony. (Tr. 31-57.) Testimony
was also received from an impartial vocational expert. (Id.) At the conclusion of the hearing,
the matter was taken under advisement until August 10, 2012, when the ALJ issued a written
decision finding that the plaintiff was not disabled. (Tr. 13-25.) That decision contains the
following enumerated findings:
1. The claimant meets the insured status requirements of the Social Security Act
through March 31, 2013.
2. The claimant has not engaged in substantial gainful activity since September
11, 2000 the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: history of cerebrovascular
accident, osteoarthritis of the knees, and hypertension (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that
meet 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
5. After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform sedentary work as
defined in 20 CFR 404.1567(a) except the claimant can lift and/or carry up to
10 pounds occasionally and five pounds frequently; sit for six hours; stand
and/or walk for two hours; never climb ladders/ropes/scaffolds or crouch;
occasionally climb ramps/stairs, balance, kneel, and crawl; and should avoid
all exposure to hazards.
6. The claimant is capable of performing past relevant work as a secretary. This
work does not require the performance of work-related activities precluded by
the claimant's residual functional capacity (20 CFR 404.1565).
7. The claimant has not been under a disability, as defined in the Social Security
Act, from September 11, 2009, through the date of this decision (20 CFR
(Tr. 18, 21, 25.)
On November 6, 2013, the Appeals Council denied the plaintiff's request for review of
the ALJ's decision (Tr. 1-5), thereby rendering that decision the final decision of the SSA. This
civil action was thereafter timely filed, and the court has jurisdiction. 42 U.S.C. § 405(g). If the
ALJ's findings are supported by substantial evidence based on the record as a whole, then those
findings are conclusive. Id.
III. Review of the Record
The following summary of the medical record is taken from the ALJ's decision:
As for the objective evidence concerning the claimant's history of cerebrovascular
accident (CVA), the claimant's problems began on September 11, 2009. While
singing in church, the claimant became weak and unsteady and could not control
her right side. Ex. 1 F, p. 7. Her sister took her to Centennial Medical Center's
emergency room. Id. Her blood pressure was "quite elevated at 203/90" and she
"required parenteral BP medications." Id. Two CT scans and an MRI confirmed
that the claimant had experienced a brainstem hemorrhage. Id. She was seen by a
neurosurgeon and admitted to Centennial. Id. The claimant's doctors determined
that her CVA was caused by uncontrolled hypertension. Ex. 2F, p. 5. Ultimately,
no surgical intervention was necessary, and the claimant "did very well during
this admission." Ex. 2F, p. She responded well to her inpatient treatments and
was deemed "stable for discharge" on September 17, 2009. Id. On that date, she
was transferred to Vanderbilt's Stallworth Rehabilitation Hospital (Stallworth).
The claimant received inpatient rehabilitative treatment at Stallworth from
September 17, 2009 through September 25, 2009. It was noted that the claimant
"did very well with rehabilitation therapies" during her stay at Stallworth. E x. 1F,
p. 8. A pre-discharge physical examination noted only mild or very mild
abnormalities and was otherwise unremarkable. Ex. 1F, pp. 8-9. "The [claimant]
made significant progress with regards to mobility, transfers, self-care, and
activities of daily living. She reached a modified independent level of function"
prior to discharge. Ex. 1 F, p. 9.
The claimant subsequently received physical therapy, occupational therapy, and
speech/language pathology treatment through Baptist Hospital. Concerning her
physical therapy, while certain therapy goals remained unmet, the claimant's
physical therapist determined that her progress had plateaued such that there was
"no need for skilled therapy intervention." Ex. 3F, p. 18. The claimant was
deemed to be "independent" and was set up with a physical therapy home
exercise program. Id. Concerning her occupational therapy, the claimant met all
of her therapy goals. Ex. 3F, p. 31. She was noted to be "independent" without
the need for continued skilled occupational therapy intervention, and she was set
up with an occupational therapy home exercise program. Ex. 3F, p. 32.
Concerning her speech/language pathology treatment, she had "achieved all
goals" by the 14th out of 24 authorized visits. See Ex. 3F, p. 2.
The claimant's primary care physician is Dr. Francisco Mayorquin of the
Cholesterol Center of Nashville. In October 2009, he noted that the claimant was
"improving." Ex. 517, p. 45. In November 2009, he stated that the claimant
"reports that she has been doing well." Ex. 5F, p. 42. In February 2010, a
physical exam was generally unremarkable, and Dr. Mayorquin noted that the
claimant had begun using a cane. Ex. 5F, pp. 27-28. In March and April 2010,
the claimant again had generally unremarkable physical exams with normal gait
and good balance. Ex. 517, pp. 5-16. At the remainder of her appointments in
2010, as well as the vast majority of her appointments in 2011 and 2012, the
claimant had generally unremarkable physical exams, including normal mobility,
normal gait/station, good balance, and/or grossly intact sensation. Exs. 13F, 22F.
At some appointments, the claimant was noted to be feeling better or to have no
concerns. See, e.g., Ex. 13F, pp. 14-29. At a very small number of appointments,
she complained of relatively routine problems (e.g., pain, headaches, rashes, etc.).
See, e.g., Ex. 1 pp. 11-12. At her most recent documented appointment, the
claimant complained of knee pain and back pain; even so, she had a generally
unremarkable physical exam, including a musculoskeletal exam showing normal
range of motion, normal strength, and normal tone. Ex 22F, pp. 1-3. On the
whole, Dr. Mayorquin's treatment records are comprised of generally
unremarkable physical examinations and occasional/sporadic subjective
The claimant saw Dr. Anne O'Duffy of the Vanderbilt Neurology Clinic for
follow-up appointments concerning her CVA. In April 2010, Dr. O'Duffy noted
that the claimant's "balance is off, but she manages quite well overall." Ex. 4F, p.
5. Dr. O'Duffy also noted that the claimant had decided to retire after 30 years
with the Tennessee Department of Human Services. Id. An MRI showed no
evidence of acute intracranial abnormality. Ex. 4F, p. 4. In July 2010, Dr.
O'Duffy noted that the claimant was "doing well" and that her speech was
"improving and rarely gets very bad." Ex. 12F, p. 16. Dr. O'Duffy further stated,
"Her biggest problem is balance first thing in the morning," which generally
resolved within 15-20 minutes. Id. In January 2011, Dr. O'Duffy noted that the
claimant tended to use a cane when she was outside and that she had headaches
"at times," approximately "once every week or two," but that she had been able to
manage migraines in the past. Ex. 12F, p. 3. Dr. O'Duffy concluded that the
claimant was "doing quite well." Ex. 12F, p. 4. In July 2011, Dr. O'Duffy noted
that the claimant still had occasional headaches but that she was still "doing quite
As for the objective evidence concerning the claimant's osteoarthritis, the
claimant was generally noted to have normal mobility and gait with good balance
at her primary care appointments, as noted above. However, based on her
subjective allegations of pain in May 2012, Dr. Mayorquin refered the claimant to
Premier Orthopaedics. The claimant was seen on May 31, 2012, by physician's
assistant (PA) Lacie Baker in the office of Dr. Joseph Chenger. Ex. 21F. The
claimant reported severe knee pain, as well as radiating lower back pain. Ex. 21F,
p. 5. PA Baker noted, "She is not interested in any treatment" but "states she
would just like to know what is causing her pain." Id. The claimant's
musculoskeletal exam was essentially normal, including full range of motion
without pain and negative straight leg raise testing. Ex. 21F, p. 6. PA Baker also
noted full range of motion, full flexion, and full extension of the knee, but she
also documented positive patella apprehension tests on both sides. Id Despite
these exam findings imaging of the knees revealed advanced osteoarthritis of the
right knee and marked osteoarthritis of the left knee, which were to be treated
with physical therapy. Ex. 21F, pp. 6-7. Although there is scant evidence of the
claimant's osteoarthritis prior to 2012, it stands to reason that the claimant's
osteoarthritis had been present for some time, as it had progressed to "advanced"
and "marked" severity by the time PA Baker obtained imaging of the claimant's
As for the evidence concerning the claimant's hypertension, there is little question
as to whether the claimant's high blood pressure was the root cause of her CVA.
See Ex. 2F, p. 5. At the time of her initial hospitalization, she was put on an
antihypertensive medication regimen, which continued for a number of weeks
after she was discharged, until her primary care physician took over treatment of
her hypertension. See, e.g., Ex. 5F, p. 45. Beginning in late 2009 and continuing
into 2010, the claimant was routinely noted by Dr. Mayorquin to be taking her
blood pressure medications without related complaints, despite occasional
elevated readings. See, e.g Ex. 5F, pp. 16-27. In April 2010, Dr. O'Duffy, the
neurologist, noted that the claimant's blood pressure readings had generally been
good with occasional elevations. Ex. 4F, p. 6. By January 2011, Dr. Mayorquin
described the claimant's blood pressure as being "very well controlled," sentiment
shared by Dr. O'Duffy in July 2011. Exs. 13F, p. 3; 23F, pp. 5-7. The claimant's
blood pressure readings were still good as of May 2012. Ex. 22F, pp. 1-3.
After careful consideration of the evidence, the undersigned finds that the
claimant's medically determinable impairments could reasonably be expected to
cause the alleged symptoms; however, the claimant's statements concerning the
intensity, persistence and limiting effects of these symptoms are not credible to
the extent they are inconsistent with the above residual functional capacity
The claimant's statements concerning the intensity, persistence, and limiting
effects of her impairments and symptoms are not fully credible. This finding is
not intended to suggest that the claimant has been anything less than forthright
and honest; however, the totality of the evidence does not support the claimant's
subjective allegations of disabling limitations. To be sure, the claimant endured a
major medical ordeal in the form of her CVA and subsequent rehabilitation
among other things. However, the medical evidence of record, beginning in late
2009, is predominantly comprised of generally unremarkable physical exams,
which typically included normal range of motion, normal strength, normal
sensation, normal gait/station, and/or normal balance. The record also reflects
improved and generally stable blood pressure readings following the claimant's
hospitalization, with only occasional elevated readings. In addition, the
claimant's considerable activities of daily living speak to a high level of
functioning, despite the aforementioned conditions and her osteoarthritis. In light
of the foregoing considerations, the claimant's statements concerning the
intensity, persistence, and limiting effects of her impairments and symptoms are
not credible to the extent they are inconsistent with the above residual functional
As for the opinion evidence, great weight is given to the opinion of Dr. Celia
Gulbenk, a state agency medical consult. Dr. Gulbenk opined that the claimant
could lift/carry 10 pounds occasionally and less than 10 pounds frequently;
stand/walk for two hours; sit for six hours; occasionally climb ramps/stairs,
balance, stoop, kneel, or crawl; never climb ladders/ropes/scaffolds or crouch; and
should avoid all exposure to hazards. Ex. 7F, pp. 2-5. Dr. Gulbenk's opinion is
consistent with the medical evidence of record, as it adequately considers the
claimant's subjective allegations, yet it is not inconsistent with the medical
evidence of record, including generally unremarkable physical exams over an
extended period. In contrast, little weight is given to the opinion of state agency
consultant Dr. John Rinde. Distinct from Dr. Gulbenk's opinion, Dr. Rinde
opined that the claimant could lift/carry 20 pounds occasionally and 10 pounds
frequently, and he opined that the claimant should avoid even moderate exposure
though not all exposure, to hazards. On balance, Dr. Rinde's opinion is overly
optimistic as to the claimant's ability to lift/carry and as to her ability to tolerate
exposure to any hazards. As such, Dr. Rinde's opinion is given little weight,
while Dr. Gulbenk's opinion is given great weight.
In sum, the above residual functional capacity assessment is supported by the
objective evidence as set forth above, the disparities between the claimant's
subjective allegations and the objective evidence, and the opinion of Dr. Gulbenk.
Viewed as a whole, the evidence confirms that the claimant has the residual
functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a)
except the claimant can lift and/or carry up to 10 pounds occasionally and five
pounds frequently; sit for six hours; stand and/or walk for two hours; never climb
ladders/ropes/scaffolds or crouch; occasionally climb ramps/stairs, balance, kneel,
and crawl; and should avoid all exposure to hazards.
IV. Conclusions of Law
A. Standard of Review
This court reviews the final decision of the SSA to determine whether substantial
evidence supports that agency's findings and whether it applied the correct legal standards.
Miller v. Comm'r of Soc. Sec., 811 F.3d 825, 833 (6th Cir. 2016). Substantial evidence means
"`more than a mere scintilla' but less than a preponderance; substantial evidence is such `relevant
evidence as a reasonable mind might accept as adequate to support a conclusion."' Id. (quoting
Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001)). In determining whether substantial
evidence supports the agency's findings, a court must examine the record as a whole, "tak[ing]
into account whatever in the record fairly detracts from its weight." Brooks v. Comm'r of Soc.
Sec., 531 F. App'x 636, 641 (6th Cir. 2013) (quoting Garner v. Heckler, 745 F.2d 383, 388 (6th
Cir. 1984)). The agency's decision must stand if substantial evidence supports it, even if the
record contains evidence supporting the opposite conclusion. See Hernandez v. Comm'r of Soc.
Sec., 644 F. App'x 468, 473 (6th Cir. 2016) (citing Key v. Callahan, 109 F.3d 270, 273 (6th Cir.
Accordingly, this court may not "try the case de novo, resolve conflicts in evidence, or
decide questions of credibility." Ulman v. Comm'r of Soc. Sec., 693 F.3d 709, 713 (6th Cir.
2012) (quoting Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007)). Where, however, an ALJ
fails to follow agency rules and regulations, the decision lacks the support of substantial
evidence, "even where the conclusion of the ALJ may be justified based upon the record."
Miller, 811 F.3d at 833 (quoting Gentry v. Comm'r of Soc. Sec., 741 F.3d 708, 722 (6th Cir.
B. The Five-Step Inquiry
The claimant bears the ultimate burden of establishing 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 result in death
or which has lasted or can be expected to last for a continuous period of not less than 12
months." 42 U.S.C. § 423(d)(1)(A). The claimant's "physical or mental impairment" must
"result from anatomical, physiological, or psychological abnormalities which are demonstrable
by medically acceptable clinical and laboratory diagnostic techniques." Id. § 423(d)(3). The SSA
considers a claimant's case under a five-step sequential evaluation process, described by the
Sixth Circuit Court of Appeals as follows:
1) A claimant who is engaging in substantial gainful activity will not be found to be
disabled regardless of medical findings.
2) A claimant who does not have a severe impairment will not be found to be
3) A finding of disability will be made without consideration of vocational factors, if
a claimant is not working and is suffering from a severe impairment which meets
the duration requirement and which meets or equals a listed impairment in
Appendix 1 to Subpart P of the Regulations. Claimants with lesser impairments
proceed to step four.
4) A claimant who can perform work that he has done in the past will not be found
to be disabled.
5) If a claimant cannot perform his past work, other factors including age, education,
past work experience and residual functional capacity must be considered to
determine if other work can be performed.
Parks v. Soc. Sec. Admin., 413 F. App'x 856, 862 (6th Cir. 2011) (citing Cruse v. Comm'r of
Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007)); 20 C.F.R. §§ 404.1520, 416.920. The claimant
bears the burden through step four of proving the existence and severity of the limitations her
impairments cause and the fact that she cannot perform past relevant work; however, at step five,
"the burden shifts to the Commissioner to `identify a significant number of jobs in the economy
that accommodate the claimant's residual functional capacity ...." Kepke v. Comm'r of Soc.
Sec., 636 F. App'x 625, 628 (6th Cir. 2016) (quoting Warner v. Comm'r of Soc. Sec., 375 F.3d
387, 390 (6th Cir. 2004)).
The SSA can carry its burden at the fifth step of the evaluation process by relying on the
Medical-Vocational Guidelines, otherwise known as "the grids," but only if a nonexertional
impairment does not significantly limit the claimant, and then only when the claimant's
characteristics precisely match the characteristics of the applicable grid rule. See Anderson v.
Comm'r of Soc. Sec., 406 F. App'x 32, 35 (6th Cir. 2010); Wright v. Massanari, 321 F.3d 611,
615-16 (6th Cir. 2003). Otherwise, the grids only function as a guide to the disability
determination. Wright, 321 F.3d at 615-16; see also Moon v. Sullivan, 923 F.2d 1175, 1181 (6th
Cir. 1990). Where the grids do not direct a conclusion as to the claimant's disability, the SSA
must rebut the claimant's prima facie case by coming forward with proof of the claimant's
individual vocational qualifications to perform specific jobs, typically through vocational expert
testimony. Anderson, 406 F. App'x at 35; see Wright, 321 F.3d at 616 (quoting SSR 83-12, 1983
WL 31253, *4 (Jan. 1, 1983)).
When determining a claimant's residual functional capacity (RFC) at steps four and five,
the SSA must consider the combined effect of all the claimant's impairments, mental and
physical, exertional and nonexertional, severe and nonsevere. See 42 U.S.C. §§ 423(d)(2)(B),
(5)(B); Glenn v. Comm'r of Soc. Sec., 763 F.3d 494, 499 (6th Cir. 2014) (citing 20 C.F.R.
C. The Plaintiffs Statement of Errors
The plaintiff first argues that the ALJ's residual function capacity ("RFC") finding was
not supported by substantial evidence because it did not include all of the plaintiffs functional
limitations. (ECF No. 11 at Page ID# 821.) The plaintiff contends that the ALJ's RFC
assessment failed to consider the plaintiff's need to use a cane, her limited use of her right
(dominant) upper extremity and her cognitive deficits. (Id.)
With respect to usage of the cane, the plaintiff argues that the ALJ failed to consider Dr.
Rinde's, one of the state-agency medical consultant's, opinion that the plaintiff required the use
of a cane. (Id.) "Administrative law judges ... are not bound by findings made by State
agency ... physicians ... , but they may not ignore these opinions and must explain the weight
given to the opinions in their decisions." SSR 96-6P, 1996 WL 374180, at *2.
After fully considering Dr. Rinde's testimony, the ALJ determined that it was entitled to
little weight because "Dr. Rinde's opinion is overly optimistic as to the claimant's ability to
lift/carry and as to her ability to tolerate exposure to any hazards." (Tr. 24.) Additionally, the
ALJ compared Dr. Rinde's opinion to the other state-agency medical consultant, Dr. Gulbenk,
and determined that Dr. Gulbenk's opinion was entitled to great weight because it "is consistent
with the medical evidence of record, as it adequately considers the claimant's subjective
allegations, yet it is not inconsistent with the medical evidence of record, including generally
unremarkable physical exams over an extended period." (Id.)
Moreover, while Dr. Rinde noted that the plaintiff used a cane, it is not clear whether, in
his opinion, the plaintiff required a cane, or whether he was merely observing that the plaintiff
was using a cane.' By contrast, Dr. Gulbenk reported that the plaintiff was "able to walk without
assistance, but gait wide based and is a bit unsteady when first standing and on turns." (Tr. 564.)
The ALJ properly supported her determination that Dr. Rinde's opinion was entitled to little
' That Dr. Rinde was observing rather than opining regarding the plaintiff's use of the cane is
supported by Dr. Rinde's observation that "she was able to walk without assistance but she used
a cane and had a wide gait." (Tr. 711.)
weight and fully explained her determination in the decision. See supra., SSR 96-6P. As such,
Dr. Rinde's comment that the plaintiff used a cane does not undermine the ALJ's RFC
The plaintiff also claims that the ALJ failed to consider that Dr. O'Duffy and Dr.
Chenger noted that she used a cane. The plaintiff does not suggest that Dr. O'Duffy or Dr.
Chenger prescribed the use of the cane or advised the plaintiff to use a cane. Indeed, the plaintiff
does not point to any evidence in the record, nor has the court found any such evidence,
suggesting that any medical professional prescribed a cane, and there was substantial evidence in
the record to suggest that the plaintiff did not require a cane in order to ambulate.' See Ex. 5F,
pp. 9, 15 (the plaintiff's treating physician noting that the plaintiff's gait was "normal" and that
she had "good balance" and not noting the use of a cane during visits on March 15, 2010, April
2, 2010, April 20, 2010); pp. 43 (Application for Disabled Person License Plate and/or Placard,
signed by the plaintiff's treating physician but failing to reflect that the plaintiff required a cane);
Ex 8F, ppl (consultative examiner, Dr. Deborah Doineau, noted that the plaintiff "ambulated
without assistance" during the July 29, 2010 exam.)
Consequently, the ALJ was not required to consider the plaintiff's use of a cane in her
RFC assessment. See Carreon v. Massanari, 51 F. App'x 571, 575 (6th Cir. 2002)(finding that
"because the cane was not a necessary device for claimant's use, it cannot be considered an
exertional limitation that reduced her ability to work.); see also Murphy v. Astrue, No. 2:11-cv-
' While Plaintiff testified at the hearing that "they told me to start using the cane," presumably
meaning the physical therapists at Baptist Hospital, after a few weeks of using a walker, (Tr. 50)
the records from Baptist Hospital do not support this testimony. The discharge report prepared
by physical therapist Danielle Stoller on February 10, 2010, noted that no equipment or supplies
were issued to the plaintiff, and that one of the plaintiff's short term goals could not be met
because she continued to carry a straight cane "due to insecurity however has had no episodes of
knee buckling." Ex. No. 3F pp. 18-19.
00114, 2013 WL 829316, at * 10 (M.D.Tenn. Mar. 6, 2013)(finding ALJ did not err by relying on
VE testimony in response to a hypothetical which did not account for use of the cane where cane
was not prescribed by any physician and there was medical evidence that the plaintiff moved
about with unrestricted mobility ).
With respect to the plaintiff's claim that the ALJ failed to consider that she had difficulty
using her right upper extremity, the plaintiff argues that the ALJ did not consider her testimony
at the hearing that she never regained her typing speed after her stroke, that she did not have a
strong grip with her right hand and that she would use both hands to hold any item that was not
very light. (Tr. 41-42, 49.)
By the time of her May, 2012, appointment with Dr. Mayorquin, the plaintiff's primary
treating physician, Dr. Mayorquin reported that the plaintiff had no elbow, hand or wrist pain,
that her musculoskeletal exam showed "normal range of motion, normal strength, normal tone"
and specifically with respect to her right upper extremity, Dr. Mayorquin reported "a normal
exam." (Ex. 22F pp. 1-2.) Additionally, Dr. Mayorquin reported that the plaintiff "denied
muscle cramps, muscle weakness, joint pain, joint swelling, stiffness." (Ex. 22F at pp. 6.)
In assessing the medical evidence supplied in support of a claim, there are certain
governing standards to which an ALJ must adhere. Key among these is that
greater deference is generally given to the opinions of treating physicians than to
those of non-treating physicians, commonly known as the treating physician rule.
See Soc. Sec. Rul. 96-2p, 1996 WL 374188 (July 2, 1996); Wilson v. Comm'r of
Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). Because treating physicians are "the
medical professionals most able to provide a detailed, longitudinal picture of [a
claimant's] medical impairment(s) and may bring a unique perspective to the
medical evidence that cannot be obtained from the objective medical findings
alone," their opinions are generally accorded more weight than those of nontreating physicians. 20 C.F.R. § 416.927(d)(2). Therefore, if the opinion of the
treating physician as to the nature and severity of a claimant's conditions is "wellsupported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with other substantial evidence in [the] case record," then it
will be accorded controlling weight. Wilson, 378 F.3d at 544.
Rogers v. Comm'r ofSoc. Sec., 486 F.3d 234, 242 (6th Cir. 2007).
To the extent the ALJ failed to consider the plaintiff's subjective statements about the
alleged impaired functioning of her right upper extremity, the ALJ was entitled to rely on the
plaintiff's treating primary care physician's conclusion that as of May, 2012, the plaintiff's upper
extremities functioned normally.
The plaintiff's final contention with respect to the adequacy of the ALJ's RFC
assessment is that the ALJ failed to properly consider her cognitive deficits. The plaintiff
testified that she had difficulty remembering things and concentrating on activities. (Tr. 41, 4748.) However, after reviewing the record, the ALJ noted that the plaintiff.
enjoys reading, watching TV, playing card games, playing computer games, doing
puzzles, and sewing, all of which require reasonable amounts of concentration,
persistence, or pace. Ex. 4E, p. 1 . She also stated that she was learning to play
the bass guitar. Ex. 8E, p. 5. During a consultative psychological evaluation, the
claimant was noted to have clear, coherent, goal-directed speech; intact memory;
and no loosening of associations, circumstantial, or tangential thinking. Ex. 8F p.
Moreover, the consultative psychological examiner noted the claimant's
considerable activities of daily living and adequate social functioning. Ex. 8F.
She also noted that the claimant's speech was clear, coherent, and goal-oriented;
she expressed herself adequately; her memory seemed intact, despite some
complaints of memory problems; she had a good fund of general knowledge;
demonstrated good abstract/interpretational abilities; showed no evidence of
psychosis; no evidence of loosening associations, circumstantial, or tangential
thinking; and no evidence of hallucinations, delusions, or ideas of reference,
despite "somewhat" below average insight. Ex. 8F, p. 3. Based on her evaluation
of the claimant, the examiner opined that the claimant had no more than mild
mental limitations. Ex. 8F, p. 4. Finally, there is no mental health treatment
history, and there are no mental health opinions of record from any treating
source. In light of the foregoing discussion, the totality of the evidence indicates
that the claimant's mental impairment causes no more than minimal limitation of
her ability to perform basic work activities, consistent with the above finding that
the claimant's mental impairment is non-severe.
The ALJ's finding that any cognitive deficits caused no more than minimal limitation of
the plaintiff s ability to perform basic work activities was supported by substantial evidence, and
thus, is not subject to reconsideration by this court.
In sum, the ALJ's RFC assessment was procedurally proper and was supported by
The plaintiff next contends that the ALJ's finding that she could do her past relevant
work is not supported by substantial evidence. The plaintiff bases this claim on her argument
that the ALJ failed to consider all of the plaintiff's functional limitations. The court has
determined that the ALJ's RFC assessment did not fail to consider any of the plaintiff's
functional limitations and was supported by substantial evidence. Thus, any arguments that the
plaintiff makes on that basis, are without merit.
Plaintiff also argues that the ALJ erred when she stated that the vocational expert ("VE")
testified that the plaintiff performed her job at the "medium exertional level." Whether the ALJ
misinterpreted the VE's testimony or not is irrelevant because the ALJ ultimately found that
plaintiff "is able to perform past relevant work as a secretary, "as that occupation is normally
performed (as described in the Dictionary of Occupational Titles ("DOT"))" which classifies
such work as sedentary, "though not as actually performed by the claimant." (Tr. 25.) There is
no dispute that the VE acknowledged that the DOT defines secretarial work as sedentary. (Tr.
Social Security Ruling 82-61 identifies three possible tests for determining whether a
claimant retains the capacity to perform his past relevant work. They are: (1) whether the
claimant "retains the capacity to perform a past relevant job based on a broad generic,
occupational classification of that job;" (2) whether the claimant retains the capacity to perform
the particular functional demands and job duties of his past job as he actually performed it; and
(3) "[w]hether the claimant retains the capacity to perform the functional demands and job duties
of the job as ordinarily required by employers throughout the national economy." SSR 82-61,
1982 WL 31387, at *1-2. Under the second test, the claimant should be found to be "not
disabled" if the evidence shows that he retains the RFC to perform the functional demands and
job duties of a past relevant job as he actually performed it. Id Under the third test, the DOT
can be used to define the job as it is usually performed in the national economy, although "[i]t is
understood that some individual jobs may require somewhat more or less exertion than the DOT
description." Id., at *3. The Ruling clarifies:
A former job performed [ ] by the claimant may have involved functional
demands and job duties significantly in excess of those generally required for the
job by other employers throughout the national economy. Under this test, if the
claimant cannot perform the excessive functional demands and/or job duties
actually required in the former job but can perform the functional demands and
job duties as generally required by employers throughout the economy, the
claimant should be found to be "not disabled."
Id., see also Hurley v. Comm'r of Soc. Sec., No. 1:13-cv-913, 2015 WL 954192, at *12 (S.D.
Ohio Mar, 4, 2015) (concluding that ALJ could consider whether the plaintiff had the RFC to
perform the purchasing job as generally performed in the national economy or as the plaintiff
actually performed the job.)
Thus, while acknowledging that the plaintiff s RFC would prevent her from resuming her
former secretarial job, it was entirely appropriate for the ALJ to conclude, as she did, that
plaintiff's RFC would allow her to perform the job of a secretary as classified by the DOT and
"as ordinarily required by employers throughout the national economy." SSR 82-61, 1982 WL
The plaintiff next argues that the ALJ did not evaluate her obesity in accordance with the
provisions of S.S.R. 02-1p and failed even to find that obesity constituted a severe impairment.
This claim is meritless.
Initially, the court notes that the plaintiff did not allege obesity as an impairment in her
disability application and, although at the hearing before the ALJ the plaintiff's counsel
mentioned that the plaintiff's was obese, stating: "So, obviously she's also morbidly obese," (Tr.
37), counsel never questioned the plaintiff regarding the impact of her obesity on her ability to
work or her daily activities. Indeed, but for that single comment by the plaintiff's counsel, there
was no mention of the plaintiff's obesity at the hearing.4 The ALJ is under no "obligation to
investigate a claim not presented at the time of the application for benefits and not offered at the
hearing as a basis for disability." Pena v. Chater, 76 F.3d 906, 909 (8th Cir. 1996) (quoting
Brockman v. Sullivan, 987 F.2d 1344, 1348 (8th Cir.1993)); see also Nejat v. Comm'r of Soc.
Sec., 359 F. App'x 574, 577 (finding the claimant's contention that the ALJ failed to consider his
obesity meritless, where the claimant failed to list obesity in his application and there was scant
evidence of obesity in the record.)
Even if the plaintiff had raised obesity as an impairment however, she still could not
prevail on this claim. Social Security Ruling 02-1p explains the SSA's policy on the evaluation
of obesity. Although the SSA no longer qualifies obesity as a "listed impairment," the ruling
"remind[s] adjudicators to consider its effects when evaluating disability." SSR 02-1p, 2000 WL
628049, at *1 (S.S.A.). SSR 02-1p states:
An assessment should also be made of the effect obesity has upon the individual's
ability to perform routine movement and necessary physical activity within the
work environment. Individuals with obesity may have problems with the ability
The ALJ asked plaintiff her age, height and weight; however this appears to be a standard
introductory line of questioning and not specifically related to the plaintiff's obesity.
to sustain a function over time ... [O]ur RFC assessments must consider an
individuals' maximum remaining ability to do sustained work activities in an
ordinary work setting ona [sic] regular and continuing basis. A "regular and
continuing basis" means 8 hours a day, for 5 days a week, or an equivalent work
Id. at *6. The Sixth Circuit has made clear that it is "a mischaracterization to suggest that Social
Security Ruling 02-1p offers any particular procedural mode of analysis for obese disability
claimants." Bledsoe v. Barnhart, 165 F. App'x 408, 412 (6th Cir. 2006). The ALJ does not need
to make specific mention of obesity if she credits an expert's report that considers obesity. See
id.; see also Coldiron v. Comm'r of Soc. Sec., 391 F. App'x 435, 442--43 (6th Cir. 2010) (finding
that the ALJ adequately accounted for the claimant's obesity where every medical opinion the
ALJ evaluated acknowledged the claimant's obesity and the ALJ relied on these opinions in
formulating the claimant's RFC); Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004) (stating
"although the ALJ did not explicitly consider [claimant's] obesity, it was factored indirectly into
the ALJ's decision as a part of the doctors' opinions.").
Notably, while most of the physician's treating plaintiff noted that she was obese,' the
plaintiff does not suggest, and the court has not found, that any physician opined that the
plaintiff's obesity was an issue of concern for which they were treating the plaintiff or which
impaired the plaintiff's functioning. Moreover, it is reasonable to assume that the ALJ's failure
to specifically elaborate on the issue of plaintiff's obesity stems more from the plaintiff's failure
to raise obesity as a functional limitation in her application or to present any such evidence at the
hearing, than that the ALJ did not consider the issue. See Essary v. Comm'r of Soc. Sec., 11 F.
' See e.g. Ex 217, pp. 2 (Centennial Medical Center, 2/11/09, noting high BMI without further
comment); Ex No. 4F, pp. 15 (Vanderbilt University Medical Center ("VUMC"), 2/5/10, noting
"obese" without further comment); Ex. No. 4F, pp. 20 (VUMC Discharge Summary, 9/25/09,
noting "morbid obesity" under past medical history without further comment); Ex No. 5F, pp 6,
10, 15, 28 (the plaintiff's treating physician noting "obesity" without further comment).
App'x 662, 667 (6th Cir. 2004) (finding that ALJ sufficiently considered the claimant's obesity
where obesity was mentioned without elaboration, finding that "[t]he absence of further
elaboration on the issue of obesity likely stems from the fact that [the claimant] failed to present
evidence of any functional limitations resulting specifically from her obesity); see also Forte v.
Barnhart, 377 F.3d 892, 896 (8th Cir. 2004) (rejecting claimant's "argument that the ALJ erred
in failing to consider his obesity in assessing his RFC," explaining that, "[a]lthough his treating
doctors noted that [the claimant] was obese and should lose weight, none of them suggested his
obesity imposed any additional work-related limitations, and he did not testify that his obesity
imposed additional restrictions."); Cranfield v. Comm'r of Soc. Sec., 79 F. App'x 852, at 857858 (6th Cir. 2003)(finding that neither the ALJ nor the court had an obligation to address
claimant's obesity where she did not provide any evidence suggesting that she or her doctors
regarded her weight as an impairment and where claimant provided no evidence that obesity
affected her ability to work.) The court finds that the plaintiff did not raise obesity as an
impairment, but even if she did, by thoroughly considering the plaintiff's medical records, and to
the extent those records raised the plaintiff's obesity as an issue, the ALJ implicitly considered
the plaintiff's obesity in compliance with the requirements of SSR 02-1p.
Finally, the plaintiff argues that the ALJ did not evaluate her credibility in accordance
with the provisions of 20 C.F.R. § 404.1529(c)(3) and S.S.R. 96-7p. The plaintiff contends that
the ALJ's credibility determination was contradictory and failed to properly consider the
plaintiff's statements about her limitations. Additionally, the plaintiff contends that the ALJ
failed to consider most of the factors set forth at 20 C.F.R. § 404.1529(c)(3) and S.S.R. 96-7p
including: the duration, intensity, and frequency of the plaintiff's symptoms; precipitating and
aggravating factors; the limitation in the plaintiff's daily activities and the need for frequent
assistance; and the plaintiff s exemplary work history.
An ALJ is required to follow a two-step process when evaluating an individual's
subjective complaints. First, the ALJ must determine whether the individual has an underlying
medically determinable physical or mental impairment that could reasonably be expected to
produce the individual's symptoms. 20 C.F.R. § 404.1529(b). The existence of such an
impairment must be demonstrated by objective medical evidence.
Second, once an
underlying impairment that could reasonably be expected to produce the individual's symptoms
has been shown, the ALJ must evaluate the intensity, persistence, and limiting effects of the
individual's symptoms to determine the extent to which they limit the individual's ability to
perform basic work activities. 20 C.F.R. § 404.1529(c). This determination requires the ALJ to
assess the credibility of the individual's statements about symptoms and their functional effects,
i.e., the degree to which those statements can be believed and accepted as true. 20 C.F.R. §
404.1529(c)(4); SSR 96-7p, 1996 WL 374186, at *2,4.
An important indication of the credibility of an individual's statements is their
consistency, both internally and with other information in the record. SSR 96-7p, 1996 WL
374186, at *5-6; 20 C.F.R. § 404.1529(c)(4). If an individual's statements lack consistency, an
ALJ should give them little weight. See id.
An ALJ's findings based on the credibility of the claimant are to be accorded great
weight and deference, particularly since an ALJ is charged with observing a witness's demeanor
and credibility. See Walters v. Comm'r of Soc. Sec., 127 F.M. 525, 531 (6th Cir. 1997) (citing
Villarreal v. Secretary of Health and Human Servs., 818 F.2d 461, 463 (6th Cir.1987).
However, an ALJ's assessment of a claimant's credibility must be supported by substantial
evidence. See id (citing Beavers v. Secretary of Health, Educ. and Welfare, 577 F.2d 383, 38687 (6th Cir. 1978)).
The plaintiff first complains about what she sees as a contradiction: the ALJ's finding
that although the plaintiff was forthright and honest, the plaintiff's statements about the intensity,
persistence and limiting effects of her impairments and symptoms were not fully credible. (Tr.
24.) "The claimant's credibility may be properly discounted `to a certain degree ... where an
[ALJ] finds contradictions among the medical reports, claimant's testimony, and other
evidence."' Warner, 375 F.3d at 392 (quoting Walters, 127 F.3d at 531.) Thus, the ALJ did not
have to find that the plaintiff was lying, in order to conclude that her statements were not fully
The ALJ found that "the totality of the evidence did not support the [plaintiff's]
subjective allegations of disabling limitations." But, contrary to the plaintiff's contention, the
ALJ did not stop there. Rather, after going through the plaintiff's entire medical history, the ALJ
[T]he medical evidence of record, beginning in late 2009, is predominantly
comprised of generally unremarkable physical exams, which typically included
normal range of motion, normal strength, normal sensation, normal gait/station,
and/or normal balance. The record also reflects improved and generally stable
blood pressure readings following the claimant's hospitalization, with only
occasional elevated readings. In addition, the claimant's considerable activities of
daily living speak to a high level of functioning, despite the aforementioned
conditions and her osteoarthritis. In light of the foregoing considerations, the
claimant's statements concerning the intensity, persistence, and limiting effects of
her impairments and symptoms are not credible to the extent they are inconsistent
with the above residual functional capacity assessment.
(Tr. 24.) Moreover, earlier in her decision, in connection with her assessment of the four
functional areas for evaluating mental disorders, the ALJ had set out her findings regarding the
plaintiff's day-to-day functioning. Relying on the plaintiff's subjective experience as reflected in
documents the plaintiff completed and her testimony at the hearing, the ALJ found that:
The claimant reported that she experiences only minimal limitations with regard
to personal care tasks. Ex. 4E, p. 2. For example, she prepares her own meals
daily (e.g., baked fish, pinto beans, pot pies, greens, etc.). Ex. 4E, p. 3. In
addition, she reported that, while being "very slow," she is able to clean the
bathroom, do laundry, iron clothes, wash dishes, and make her bed. Id. She also
shops for clothes, food, or to pick up medications. Ex. 4E, p. 4.
The claimant reported that she spends time with others, including by talking in
person or on the phone, playing games on the computer, visiting people, or going
along for a drive. Ex. 4E, p. 5. She further reported that she talks with others
every day and visits people once a week. Id. The claimant stated that she
regularly goes to church and to the park, twice weekly. Id. In addition the
claimant reported that she does not have any problems getting along with family,
friends, neighbors, or others, and that she has "no problem" getting along with
authority figures. Ex. 4 p. 6.
The claimant reported that she follows written instructions "pretty good" but is
"not so good" at following spoken instructions. Ex. 4E, p. 6. She also reported
difficulty handling stress or handling changes in routine. Ex. 4E, p. 7. However,
the claimant also reported that she was able to independently manage her
finances. Ex. 4E, p. 5. She stated that she enjoys reading, watching TV, playing
card games, playing computer games, doing puzzles, and sewing, all of which
require reasonable amounts of concentration, persistence, or pace. Ex. 4E, p. S.
She also stated that she was learning to play the bass guitar. Ex. 8E, p. S. During
a consultative psychological evaluation, the claimant was noted to have clear,
coherent, goal-directed speech; intact memory; and no loosening of associations,
circumstantial, or tangential thinking. Ex. 8F p. 3.
(Tr. 19.) After fully considering the factors set forth in 20 C.F.R. § 404.1529(c)(3) and
S.S.R. 96-7p, the ALJ found that the plaintiff's subjective statements concerning the
intensity persistence and limiting effects of her impairment and symptoms was not fully
credible. Substantial evidence supported the ALYs credibility determination, which will
not be disturbed by this court.
In sum, the plaintiff's allegations of error have no merit, and the decision of the ALJ is
supported by substantial evidence on the record as a whole. Consequently, the ALJ's decision
will be affirmed.
In light of the foregoing, the plaintiff's Motion for Judgment on the Administrative
Record will be DENIED and the decision of the SSA will be AFFIRMED. An appropriate
order is filed herewith.
Thomas A. Wiseman, Jr.
SENIOR DISTRICT JUDGE
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