Frazier v. Social Security Administration

Filing 16

MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Kevin H. Sharp on 4/12/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ELIZABETH ANN FRAZIER,
Plaintiff,
v.
NANCY BERRYHILL,1
Acting Commissioner of
Social Security,
Defendant.

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No. 3:14-cv-00872
Judge Sharp

MEMORANDUM
Pending before the Court is Plaintiff’s Motion for Judgment on the Administrative Record
(Docket Entry No. 14). The motion has been fully briefed by the parties.
Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final
decision of the Commissioner of Social Security (“Commissioner”) denying Plaintiff’s claim for
disability insurance under Title II , as provided by the Social Security Act (“the Act”). Upon review
of the administrative record as a whole and consideration of the parties’ filings, the Court finds that
the Commissioner’s determination that Plaintiff is not disabled under the Act is supported by
substantial evidence in the record as required by 42 U.S.C. § 405(g). Plaintiff’s motion will be
denied.
I. INTRODUCTION
Plaintiff, Elizabeth Frazier, filed a Title II application for disability insurance on August 13,
2010, alleging disability as of August 16, 2003. (Tr. 29, 69, 144-45). Plaintiff’s claim was denied

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Nancy Berryhill became acting Commissioner for the Social Security Administration on
January 23, 2017, and is therefore substituted as Defendant. See Fed. R. Civ. P. 25(d).

at the initial level on November 30, 2010, and on reconsideration on June 3, 2011. (Tr. 69-74, 7578). Plaintiff requested a hearing before an administrative law judge (“ALJ”), which was held on
October 18, 2012. (Tr. 41, 100, 106). On November 9, 2012, the ALJ issued a decision finding that
Plaintiff was not disabled. (Tr. 26-36). Plaintiff timely filed an appeal with the Appeals Council,
which issued a written notice of denial on January 29, 2014. (Tr. 1-5). This civil action was
thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. § 405(g).
II. ALJ FINDINGS
The ALJ issued an unfavorable decision on November 9, 2012. (AR p. 26). Based upon the
record, the ALJ made the following enumerated findings:
1.

The claimant last met the insured status requirements of the Social Security
Act on June 30, 2009.

2.

The claimant did not engage in substantial gainful activity during the period
from her alleged onset date of August 16, 2003 through her date last insured
of June 30, 2009 (20 CFR 404.1571 et seq.).

3.

Through the date last insured, the claimant had the following severe
impairment: degenerative disc disease, fibromyalgia, Sjogren’s and residuals
of atrial septal defect repair (20 CFR 404.1520(c)).

4.

Through the date last insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled 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,
through the date last insured, the claimant had the residual functional
capacity to perform light work as defined in 20 CFR 404.1567(b) in that she
could lift 20 pounds occasionally and ten pounds frequently, could sit for six
hour in an eight-hour workday and could stand/walk for six hours in an
eight-hour workday. However, she could only occasionally balance stoop,
knee, crouch, crawl and climb ramps and stairs. She could never climb
ladders, ropes or scaffolds.

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6.

Through the date last insured, the claimant was capable of performing past
relevant work as a cafeteria manager, DOT code 187.167-106, which is
SVP7. This work did not require the performance of work related activities
precluded by the claimant’s residual functional capacity (20 CFR 404.1565).

7.

The claimant was not under a disability, as defined in the Social Security
Act, at any time from August 16, 2003, the alleged onset date, through June
30, 2009, the date last insured (20 CFR 404.1520(f)).

(AR pp. 31-36).
III. REVIEW OF THE RECORD
Plaintiff was born on May 11, 1953, and alleges that she became disabled on August 16,
2003. (Tr. 29, 144). In her Disability Report, Plaintiff alleged disability due to “[d]epression,
injuries to neck, back, joints, degenerative disc disease.” (Tr. 167). The following summary of the
medical record is taken from the ALJ’s decision:
The claimant testified that she was injured in an accident, in both June and August
of 2003. She began to have back pain that spread into her legs. She testified that she
began to have joint pain in 2007. Both Dr. McFerland and Dr. Cuevas treated the
claimant during that time. Dr. McFerland sent her to a pain clinic. She testified that
before June of 2009, her date last insured, she experienced significant pain and
secondary limitations in her lower back, feet and legs. She also had issues with foot
pain and chronic fatigue. She testified that her doctor blamed the pain for the fatigue.
She also testified to memory problems and anxiety attacks, but the timing of those
conditions was less than clear in her testimony.
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 assessment.
Notes from Dr. Leslie Cuevas show a diagnosis of Sjogren’s in March of 2008.
However, when the claimant was seen in September of that same year, at Vanderbilt
Hospital, there was no mention of the condition. There is no indication that the
claimant has received ongoing treatment or has suffered any significant limitations
from the condition. Exhibits 2F and 3F.

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The claimant had CTs (with contrast) and myelograms done in July 2004 that
revealed cervical and lumbar disc bulges. At C4-5 and C5-6, she had minimal
spondylitic disk bulges. At L4-5, she had mild broad-based spondylitic disk bulge,
no focal disk herniation and neural foramina and facet joints intact. At L5-Sl, she had
mild right lateral disc protrusion. There was no significant stenosis in any of the
joints. In 2005, the claimant’s records from Dr. McFerland show degenerative disc
disease under his “Assessment,” but the imaging studies suggest that the
degenerative disc disease was very mild at that time. Exhibits 1F and 6F.
In April of 2007, the claimant had another MRI, secondary to complaints of low back
pain, paresthesia and weakness in her legs. The images showed mild degenerative
disk disease changes in the mid and lower lumbar spines. The images revealed mild
central canal stenosis at L4-5, but no focal disk herniation or nerve root
impingement. Exhibit 5 F.
In December of 2009, almost six months after the claimant’s date last insured, the
claimant visited Dr. Vaughn Allen, with continued complaints of back, leg and neck
pain. He ordered MRIs that were very similar to those ordered years earlier. The
lumbar images again showed mild and nominal readings. At L4-L5, there was
moderate narrowing, but that moderate narrowing caused only mild stenosis. At
L5-Sl, there was mild and minimal stenosis. The cervical images showed a little
change. There was mild to moderate central stenosis at C5-C6 with mild foraminal
stenosis. At C4-C5, the stenosis was mild. Dr. Allen recommended pain management
for her degenerative disc disease and fibromyalgia. Exhibit 4F.
The claimant saw Dr. Ifeanyi Obianyo in the later part of 2010 and in early 2011.
She consistently complained of back, neck, arm and leg pain and paresthesia, but
there are no comments in the record that solidifies onset date and severity. Another
cervical MRI was done in March of 201 l, and this time, the radiologist used the
words “mild” and “minimal” to describe the stenosis from the claimant's
degenerative disc disease. It appears that there has been no significant change from
the findings of 2005. Exhibit 16F.
In June of 2011, the claimant established her care with Dr. Cathy L.
Hammond-Moulton. She told the doctor that she had been diagnosed with
fibromyalgia the previous year. She also said that her pain was the result of two
back-to-back motor vehicle accidents in 2003. The claimant alleged to have a low
back bulging disc and said that Dr. Lambert had performed an MRI in March of her
shoulders, neck and arm. She said she also received steroid shots in March. She
complained of numbness and tingling in both hands. Upon examination, the
physician found vertebral spine tenderness in the lower back and palpable
paraspinals spasm. However, the motor system was labeled normal. Additionally, the
doctor noted a normal gait. The claimant visited this same physician in July and the
doctor again described her gait as normal and her motor system as normal. In August
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of 2011, the claimant saw her physician for a sore throat, but she made no mention
of musculoskeletal pain, based on the office visit notes. She visited the doctor again
in October with chest congestion, but this time she mentioned pain in her right
shoulder. This recitation of treatment since May of 2009 is significant only because
it shows times without complaint even after the date last insured. More importantly,
the claimant returned in December of 2011 with allergic rhinitis and back pain. Her
description of the back pain was that it had been chronic, but not constant. The
physician wrote, “Pains in the upper back, arm and low back ongoing and
intermittent for yrs, but recently, about 2 weeks ago, began again w/ the left elbow
to the upper shoulder and neck.” This description suggests that the claimant’s
testimony of constant, debilitating pain that causes an inability to stand without being
bent-over is perhaps exaggerated. None of the treating physicians describes her
condition as such. 17F
The claimant was diagnosed with fibromyalgia by at least 2005. In January of that
year, the claimant’s physician, Dr. McFerland, wrote in his office notes, “She reports
chronic pain in her neck, legs, etc and she states, I refuse to work,’ ‘It kills me to lift
my head up.’ She again speaks in a stoic and matter of fact fashion essentially
demanding that she is entitled to disability.” Although the doctor’s “Assessment”
included the diagnosis of fibromyalgia, under the doctor’s “Plan,” he wrote,
“Discussed my concerns with her and the fact that although she has chronic soft
tissue pain, I cannot consider her disabled by this.” Exhibit 6.
The claimant visited Dr. Leslie Cuevas in early 2006 and was again diagnosed with
fibromyalgia. She returned in December of 2007, explained she had been “lost to
follow up” because of discovery and repair of ASD, and complained of severe joint
and muscle pain. She had been found to have a positive rheumatoid factor and had
18 out of 18 trigger points. The diagnoses were positive rheumatoid factor,
fibromyalgia, and vitamin D deficiency. Dr. Cuevas noted that the claimant had
negative side effects from Lyrica and suggested that she would benefit from regular
exercise and better sleep. Exhibit 2F.
The claimant returned to see Dr. McFarland in December of 2006, but then waited
almost a year before returning in November of 2007. It looks as if they may have
spoken by phone in June of 2008, when she asked for the filling of some forms
regarding disability based on a motor vehicle accident in 2003. There are no other
notes or opinions provided by Dr. McFarland. It appears he treated her for pain for
several years, but did not consider her pain disabling at the time he last commented
on the subject in 2005.
In December of 2006, the claimant was preparing for parathyroid surgery, when an
ECG identified an atria septal defect that required surgery. In February of 2007, the
claimant saw her heart surgeon and reported that since the closure of her atrial septal
defect the previous December, her symptoms had improved substantially and that she
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was “not that short of breath anymore and she [could] do more than what she had
been in the past. An echocardiogram ... revealed a well-seated ADS device without
evidence of left or right shunt. She denied chest pain, palpitation or syncope.” In
April of 2007, the claimant saw the cardiologist for another follow up visit. Dr.
David Zhao noted that the claimant had done well since her surgery and was not
having any symptoms suggestive of procedural complications. Her echocardiogram
revealed an ejection fraction of 55-65% without any valvular disease noted. Exhibit
3F.
The claimant had a chest x-ray in February of 2011. The radiologist noted the
endovascularly placed occlusive device within the atrial septal defect, as well as mild
cardiomegaly, but concluded, “no acute cardiopulmonary disease identified.” It
appears the claimant has sustained a good recovery from the heart repair and is free
of symptoms related to the defect. Exhibit 13F.
The claimant saw Dr. Brnce Davis in October of 2012, more than three years after
the date last insured. His observations can be only guesses as to the claimant’s
condition in 2009. He summarized her medical history, complaints and observations.
He saw a normal gait and full range of motion in both shoulders. She had slow, but
normal motion in her wrists, hands and fingers. Her gait maneuvers, such as heel-toe
and tandem, were normal, but slow. Dr. Davis concluded that the claimant could
lift/carry ten pounds both occasionally and frequently, could sit for one to two hours
at one time and four to six hours in an eight-hour workday. She could stand/walk for
only four hours in an eight-hour workday. He also limited the claimant’s neck
motions, grip, climbing, squatting, extreme heat and cold, and movement on uneven
surfaces. While this evaluation of the claimant’s residual functional capacity in
October of 2012 is not challenged, it is not considered a dependable assessment of
her condition in May of 2009. The letter sent to Dr. Davis by the claimant’s attorney,
providing medical history and asking for an onset date for the claimant’s present
symptoms, does not contain the earlier quoted opinion of Dr. McFerland that the
claimant’s condition did not qualify her for disability at that time. Dr. Davis’ hand
written note on the attorney’s summary is not based on the complete record as
supplied by Dr. McFerland. Even so, the limited range of light exertion level work
assigned in the residual functional capacity above, is not significantly different than
this opinion issued three years after the date last insured. 15B and 18F.
(AR pp. 33-35).
During the hearing, she and her attorney made reference to chronic fatigue, carpal
tunnel syndrome and joint pain.
Notes from Dr. McFerland include depression in the assessment part of the record,
but there is no discussion of the condition. In June of 2011, when the claimant began
treatment with Dr. Cathy L. Hammond-Moulton, her record noted “no depression.”
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Although depression may be an occasional problem, the record does not reflect any
sustained treatment from a mental health provider and does not suppott the allegation
of depression as a severe impairment. Exhibits 6F and 17F.
The claimant’s allegations of joint pain are credible, but not to the extent that they
qualify as a severe impairment. Dr. Bruce Davis examined her in 2012 and found that
she had no tenderness in her wrist or hand. She had normal finger sensation, fist
making and finger-thumb opposition. She had reduced grip, but no atrophy and no
swelling, redness, warmth or nodules. She had full range of motion in both shoulders
and elbows. Although she had a positive rheumatoid factor from a blood panel, her
joint limitations are not severe, based on the observations of Dr. Davis. The doctor
suspected that she might have carpal tunnel syndrome, but at the time of her date last
insured, there is no evidence that this condition was a medically diagnosed
impairment. Exhibit 18F.
Although fatigue may be a symptom accompanying her fibromyalgia, it is not a
medically diagnosed impairment. Her doctor opined that it was the result of pain.
(AR pp. 31-32).
IV. DISCUSSION AND CONCLUSIONS OF LAW
A. Standard of Review
The determination of disability under the Act is an administrative decision. The only
questions before this Court are: (i) whether the decision of the Commissioner is supported by
substantial evidence; and (ii) whether the Commissioner made any legal errors in the process of
reaching the decision. 42 U.S.C. § 405(g). See Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 28 L. Ed. 2d 842 (1971) (adopting and defining substantial evidence standard in context of
Social Security cases); Kyle v. Comm’r Soc. Sec., 609 F.3d 847, 854 (6th Cir. 2010); Landsaw v.
Sec’y of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986).
Substantial evidence has been defined as “more than a mere scintilla” and “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402
U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 83 L. Ed. 126

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(1938)); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). The Commissioner’s
decision must be affirmed if it is supported by substantial evidence, “‘even if there is substantial
evidence in the record that would have supported an opposite conclusion.’” Blakley v. Comm’r of
Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.
1997)); Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003); Her v. Comm’r of Soc.
Sec., 203 F.3d 388, 389-90 (6th Cir. 1999)).
The Court must examine the entire record to determine if the Commissioner’s findings are
supported by substantial evidence. Jones v. Secretary, 945 F.2d 1365, 1369 (6th Cir.1991). A
reviewing court may not try the case de novo, resolve conflicts in evidence, or decide questions of
credibility. See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citing Myers v. Richardson,
471 F.2d 1265, 1268 (6th Cir. 1972)). The Court must accept the ALJ’s explicit findings and final
determination unless the record as a whole is without substantial evidence to support the ALJ’s
determination. 42 U.S.C. § 405(g). See, e.g., Houston v. Sec’y of Health & Human Servs., 736 F.2d
365, 366 (6th Cir. 1984).
B. Determining Disability at the Administrative Level
The claimant has the ultimate burden of establishing her entitlement to benefits by proving
her “inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
The asserted impairment(s) must be demonstrated by medically acceptable clinical and laboratory
diagnostic techniques. See 42 U.S.C. §§ 423(d)(3) and 1382c(a)(3)(D); 20 CFR §§ 404.1512(a), (c),
404.1513(d). “Substantial gainful activity” not only includes previous work performed by the

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claimant, but also, considering the claimant’s age, education, and work experience, any other
relevant work that exists in the national economy in significant numbers regardless of whether such
work exists in the immediate area in which the claimant lives, or whether a specific job vacancy
exists, or whether the claimant would be hired if she applied. 42 U.S.C. § 423(d)(2)(A).
In the proceedings before the Social Security Administration, the Commissioner must
employ a five-step, sequential evaluation process in considering the issue of the claimant’s alleged
disability. See Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001); Abbot v. Sullivan,
905 F.2d 918, 923 (6th Cir. 1990). First, the claimant must show that she is not engaged in
“substantial gainful activity” at the time disability benefits are sought. Cruse v. Comm’r of Soc.
Sec., 502 F.3d 532, 539 (6th Cir. 2007); 20 CFR §§ 404.1520(b), 416.920(b). Second, the claimant
must show that she suffers from a severe impairment that meets the twelve month durational
requirement. 20 CFR §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). See also Edwards v. Comm’r of Soc.
Sec., 113 F. App’x 83, 85 (6th Cir. 2004). Third, if the claimant has satisfied the first two steps, the
claimant is presumed disabled without further inquiry, regardless of age, education or work
experience, if the impairment at issue either appears on the regulatory list of impairments that are
of sufficient severity as to prevent any gainful employment or equals a listed impairment. Combs
v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006); 20 CFR §§ 404.1520(d), 416.920(d). A
claimant is not required to show the existence of a listed impairment in order to be found disabled,
but such a showing results in an automatic finding of disability that ends the inquiry. See Combs,
supra; Blankenship v. Bowen, 874 F.2d 1116, 1122 (6th Cir. 1989).
If the claimant’s impairment does not render her presumptively disabled, the fourth step
evaluates the claimant’s residual functional capacity in relationship to her past relevant work.

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Combs, supra. “Residual functional capacity” (“RFC”) is defined as “the most [the claimant] can
still do despite [her] limitations.” 20 CFR § 404.1545(a)(1). In determining a claimant’s RFC, for
purposes of the analysis required at steps four and five, the ALJ is required to consider the combined
effect of all the claimant’s impairments, mental and physical, exertional and nonexertional, severe
and nonsevere. See 42 U.S.C. §§ 423(d)(2)(B), (5)(B); Foster v. Bowen, 853 F.2d 483, 490 (6th
Cir.1988). At the fourth step, the claimant has the burden of proving an inability to perform past
relevant work or proving that a particular past job should not be considered relevant. Cruse, 502
F.3d at 539; Jones, 336 F.3d at 474. If the claimant cannot satisfy the burden at the fourth step,
disability benefits must be denied because the claimant is not disabled. Combs, supra.
If a claimant is not presumed disabled but shows that past relevant work cannot be
performed, the burden of production shifts at step five to the Commissioner to show that the
claimant, in light of the claimant’s RFC, age, education, and work experience, can perform other
substantial gainful employment and that such employment exists in significant numbers in the
national economy. Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005) (quoting
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997)). See also Felisky v. Bowen, 35
F.3d 1027, 1035 (6th Cir. 1994). In order to rebut a prima facie case, the Commissioner must come
forward with proof of the existence of other jobs a claimant can perform. Longworth, 402 F.3d at
595. See also Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 528 (6th Cir. 1981), cert.
denied, 461 U.S. 957, 103 S. Ct. 2428, 77 L. Ed. 2d 1315 (1983) (upholding the validity of the
medical-vocational guidelines grid as a means for the Commissioner of carrying his burden under
appropriate circumstances). Even if the claimant’s impairments prevent the claimant from doing
past relevant work, if other work exists in significant numbers in the national economy that the

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claimant can perform, the claimant is not disabled. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647,
652 (6th Cir. 2009). See also Tyra v. Sec’y of Health & Human Servs., 896 F.2d 1024, 1028-29 (6th
Cir. 1990); Farris v. Sec’y of Health & Human Servs., 773 F.2d 85, 88-89 (6th Cir. 1985); Mowery
v. Heckler, 771 F.2d 966, 969-70 (6th Cir. 1985).
If the question of disability can be resolved at any point in the five-step sequential evaluation
process, the claim is not reviewed further. 20 CFR § 404.1520(a)(4). See also Higgs v. Bowen, 880
F.2d 860, 863 (6th Cir. 1988) (holding that resolution of a claim at step two of the evaluative process
is appropriate in some circumstances).
C. Plaintiff’s Assertion of Error
Plaintiff argues that (1) the ALJ’s finding that Plaintiff can perform light work and can return
to her past relevant work was not based on substantial evidence; (2) the ALJ’s finding that Plaintiff’s
depression, carpal tunnel syndrome, and joint pain were not severe impairments was not based on
substantial evidence; and (3) the ALJ failed to apply the proper pain standard and failed to evaluate
properly and assess Plaintiff’s credibility. (Docket Entry No. 12, at 12-19). Plaintiff contends that
the Commissioner’s decision should be reversed under the fourth sentence of 42 U.S.C. § 405 (g)
with instructions to award benefits. Id. at 19.
Sentence four of 42 U.S.C. § 405(g) states as follows:
The court shall have power to enter, upon the pleadings and transcript of the record,
a judgment affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a rehearing.
42 U.S.C. §§ 405(g), 1383(c)(3). “In cases where there is an adequate record, the [Commissioner’s]
decision denying benefits can be reversed and benefits awarded if the decision is clearly erroneous,
proof of disability is overwhelming, or proof of disability is strong and evidence to the contrary is

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lacking.” Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985). Additionally, a court can reverse
the decision and immediately award benefits if all essential factual issues have been resolved and
the record adequately establishes a claimant’s entitlement to benefits. Faucher v. Secretary, 17 F.3d
171, 176 (6th Cir. 1994). See also Newkirk v. Shalala, 25 F.3d 316, 318 (1994). Plaintiff’s
assertions of error are addressed below.
1. The ALJ’s finding that Plaintiff can perform light work and can return to her past relevant work
was not based on substantial evidence.
Citing Social Security Ruling 82-62, Plaintiff argues that because there is not any medical
evidence that supports the ALJ’s finding that Plaintiff can perform light work the ALJ erred in
finding that Plaintiff could return to her past relevant work as a cafeteria manager. (Docket Entry
No. 12, at 12). Plaintiff contends that “the ALJ did not cite to any medical opinions from treating
or examining physicians that supported his finding that Mrs. Frazier could perform light work. . .
. Dr. Davis’s assessment does not support a finding that Mrs. Frazier can perform light work.” Id.
at 14. Plaintiff argues that because Dr. Davis limited her to a sedentary RFC Plaintiff would
therefore be eliminated from all past relevant work and would meet the Grids on her 55th birthday,
resulting in a favorable decision for her. Id. In response, Defendant contends that the record as a
whole supports the ALJ’s finding that Plaintiff was not disabled for the relevant period between
August 16, 2003, and June 30, 2009, and that the ALJ properly determined that Plaintiff’s
allegations were not supported by the medical evidence. (Docket Entry No. 13, at 5, 7).
To qualify for disability insurance benefits, an individual “must establish ‘the onset of
disability prior to the expiration of his insured status.’” Garner v. Heckler, 745 F.2d 383, 390 (6th
Cir. 1984) (citation omitted) (emphasis in original); Redding v. Shalala, No. 94-3471, 1995 WL
299027, at *3 (6th Cir. May 16, 1995) (“[A] claimant must show that he not only had an impairment
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prior to the expiration of his insured status but that he actually became disabled prior to that time.”).
“Evidence of disability obtained after the expiration of insured status is generally of little probative
value.” Strong v. Soc. Sec. Admin., 88 F. App’x 841, 845 (6th Cir.2004) (citation omitted). Such
evidence “must relate back to the claimant’s condition prior to the expiration of her date last
insured” to be relevant. Wirth v. Comm'r of Soc. Sec., 87 F. App’x 478, 480 (6th Cir. 2003); Higgs
v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988). The record reflects that Plaintiff’s insured status
expired on June 30, 2009, and Plaintiff therefore must prove that she became disabled prior to June
30, 2009, in order to qualify for disability benefits.
In addressing past relevant work, SSR 82-62 provides, in part:
Determination of the claimant’s ability to do [Past Relevant Work] requires a careful
appraisal of (1) the individual’s statements as to which past work requirements can
no longer be met and the reason(s) for his or her inability to meet those requirements;
(2) medical evidence establishing how the impairment limits ability to meet the
physical and mental requirements of the work; and (3) in some cases, supplementary
or corroborative information from other sources such as employers, the Dictionary
of Occupational Titles, etc., on the requirements of the work as generally performed
in the economy. The decision as to whether the claimant retains the functional
capacity to perform past work which has current relevance has far-reaching
implications and must be developed and explained fully in the disability decision.
Since this is an important and, in some instances, a controlling issue, every effort
must be made to secure evidence that resolves the issue as clearly and explicitly as
circumstances permit.
....
In finding that an individual has the capacity to perform a past relevant job, the
determination or decision must contain among the findings the following specific
findings of fact:
1. A finding of fact as to the individual’s RFC.
2. A finding of fact as to the physical and mental demands of the past job/occupation.
3. A finding of fact that the individual’s RFC would permit a return to his or her past
job or occupation.
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1982 WL 31386, at *3, 4 (S.S.A. January 1, 1982).
The ALJ noted that Plaintiff was injured in two vehicle accidents in June and August of
2003, and that she began experiencing pain in her lower back and legs. (Tr. 33, 34, 49, 257). The
ALJ noted that Plaintiff’s medical records showed that Plaintiff had CTs (with contrast) and
myelograms done in July 2004 that revealed cervical and lumbar disc bulges. (Tr. 33, 223). At
C4-5 and C5-6, Plaintiff had minimal spondylitic disk bulges, and at L4-5, she had mild broad-based
spondylitic disk bulge, no focal disk herniation and neural foramina and facet joints intact. (Tr. 33,
223-25). At L5-Sl, Plaintiff had mild right lateral foraminal disk protrusion. (Tr. 33, 225). The
records did not show any significant stenosis in any of the joints. (Tr. 33).
In January 2005, Dr. Robert Ferland,2 Plaintiff’s treating physician, diagnosed Plaintiff with
fibromyalgia and remarked that Plaintiff “reports chronic pain in her neck, legs, etc and she states,
‘I refuse to work,’ ‘It kills me to lift my head up.’ She again speaks in a stoic and matter of fact
fashion essentially demanding that she is entitled to disability.” (Tr. 34, 374). Under the doctor’s
“Plan,” Dr. Ferland stated, “Discussed my concerns with her and the fact that although she has
chronic soft tissue pain, I cannot consider her disabled by this.” Id. Dr. Ferland notes depression,
but there is no discussion of the condition. (Tr. 31, 374). Dr. Ferland referred Plaintiff to Dr. Leslie
Cuevas early in 2006 for pain evaluation. (Tr. 34, 257). Dr. Cuevas diagnosed Plaintiff with
fibromyalgia. (Tr. 34, 254-59).
The ALJ noted that in December 2006, Plaintiff had surgery to repair an atria septal defect.
(Tr. 35, 294-302). In February of 2007, Dr. David Zhao, Plaintiff’s heart surgeon, reported that

2

Dr. Ferland is incorrectly referred to as Dr. McFerland or Dr. McFarland in the ALJ’s
decision.
14

since the closure of her atrial septal defect, her symptoms had improved substantially and that she
was “not that short of breath anymore and she [could] do more than what she had been in the past.
An echocardiogram . . . revealed a well-seated ADS device without evidence of left or right shunt.
She denied chest pain, palpitation or syncope.” (Tr. 35, 286). In an April 2007 follow up visit, Dr.
Zhao noted that Plaintiff was doing well since her surgery and was not having any symptoms
suggestive of procedural complications. (Tr. 35, 281-83).
In April 2007, Plaintiff had another MRI that revealed that she had mild degenerative disk
disease changes of the mid and lower lumbar spine. (Tr. 33, 342). The images revealed mild central
canal stenosis at L4-5, but that there was not any focal disk herniation or nerve root impingement.
Id. Plaintiff returned to Dr. Ferland in November 2007. (Tr. 34, 387-88). Dr. Ferland does not
mention depression in his assessment of Plaintiff. (Tr. 387-88). The ALJ noted that there were not
any other medical records provided by Dr. Ferland after November 2007. (Tr. 34).
In December 2007, Plaintiff returned to Dr. Cuevas with complaints of severe joint and
muscle pain. (Tr. 34, 252). Plaintiff was found to have a positive rheumatoid factor and had 18 out
of 18 trigger points. Id.

Dr. Cuevas diagnosed Plaintiff with positive rheumatoid factor,

fibromyalgia, and vitamin D deficiency. Id. Dr. Cuevas noted that Plaintiff had negative side effects
from Lyrica and suggested that she would benefit from regular exercise and better sleep. (Tr. 34,
253). In March 2008, Dr. Cuevas diagnosed Plaintiff with Sjogren’s.3 (Tr. 33, 248). The ALJ noted

3

Sjogren’s syndrome is defined as “a chronic inflammatory autoimmune disease that affects
especially older women, that is characterized by dryness of mucous membranes especially of the
eyes and mouth and by infiltration of the affected tissues by lymphocytes, and that is often
associated with rheumatoid arthritis.” https://www.merriam-webster.com/medical/sjogren
15

that there were not any medical records showing that Plaintiff received ongoing treatment or
suffered any significant limitations from Sjogren’s. (Tr. 33).
In December of 2009, Plaintiff visited Dr. Vaughan Allen, with complaints of back, leg and
neck pain. (Tr. 33, 332). The MRIs showed at L4-L5 there was moderate narrowing with mild
stenosis, at L5-Sl there was mild and minimal stenosis, there was mild to moderate central stenosis
at C5-C6 with mild left foraminal stenosis, and mild stenosis at C4-C5. (Tr. 33, 334-35). Dr. Allen
recommended pain management for her degenerative disc disease and fibromyalgia. (Tr. 33, 336).
Plaintiff also had MRIs taken of her cervical spin e in March 2011, which showed there was mild
left lateral recess stenosis and borderline central canal stenosis at C5-C6 and minimal left lateral
recess stenosis and mild left foraminal stenosis at C6-C7. (Tr. 33-34, 485). The ALJ noted that
there did not appear to have been significant change from previous findings. (Tr. 34). See Steed v.
Astrue, 524 F.3d 872, 875 (8th Cir. 2008) (finding that substantial evidence supported the ALJ’s
conclusion the plaintiff could perform light work and suffered only mild degenerative changes to
her back condition where her “diagnostic tests showed actual disc herniation or bulging,” but the
diagnosis was tempered by words “mild” or “minimal” regarding either the herniation or its effects).
Dr. Cathy L. Hammond-Moulton in June and July 2011 reported that Plaintiff had vertebral
spine tenderness in the lower back and palpable paraspinal spasm, but that her motor system was
normal and that she had a normal gait. (Tr. 34, 494, 497).
Plaintiff visited Dr. Bruce Davis in October 2012, which the ALJ noted was three years after
the date last insured. (Tr. 35, 512-15). Dr. Davis opined that Plaintiff could lift 10 pounds
occasionally and frequently, sit for 4 to 6 hours in an 8-hour workday, and stand/walk for 4 hours
in an 8-hour workday. (Tr. 515). Dr. Davis also limited Plaintiff’s neck motions, repetitive/forceful

16

grip, climbing, squatting, extreme heat and cold, and movement on uneven surfaces. Id. Dr. Davis
opined that Plaintiff’s postural limitations began in 2005. (Tr. 141).
At the hearing, the ALJ remarked that Dr. Ferland’s disability assessment form was not part
of the record. (Tr. 52). The ALJ remarked to the vocational expert that he did not see any RFCs in
the medical records that related back to time period where Plaintiff was insured. (Tr. 65-66). In his
decision, the ALJ did not consider Plaintiff’s RFC in October 2012 to be a dependable assessment
of Plaintiff’s condition prior the expiration of insurance status. (Tr. 35). The ALJ noted that the
“letter sent to Dr. Davis by the claimant’s attorney, providing medical history and asking for an
onset date for the claimant’s present symptoms, does not contain the earlier quoted opinion of Dr.
[]Ferland that the claimant’s condition did not qualify her for disability at that time.” Id. The ALJ
further noted that his RFC determination was not significantly different than Dr. Davis’s opinion
issued three years after the date last insured. Id.
At the hearing, the ALJ posed a hypothetical question to the vocation expert that included
the limitations in Plaintiff’s RFC. (Tr. 64). The vocational expert testified that such a person could
perform Plaintiff’s past relevant work as a cafeteria manager. Id. In his decision, the ALJ found the
following:
In comparing the claimant's residual functional capacity with the physical and mental
demands of this work, the undersigned finds that the claimant was able to perform
it as generally performed. This finding is supported by the testimony of the
vocational expert, Dr. Gary Sturgill, who concluded that based upon the residual
functional capacity noted above, the claimant would be capable of performing her
past work as a cafeteria manager.
(Tr. 36).
“[T]he ALJ is charged with the responsibility of determining the RFC based on [the ALJ’s]
evaluation of the medical and non-medical evidence.” Rudd v. Comm’r of Soc. Sec., 531 F. App’x
17

719, 728 (6th Cir. 2013). The RFC does not need to be based on a particular medical opinion.
Brown v. Comm’r of Soc. Sec., 602 F. App’x 328, 331 (6th Cir. 2015). The RFC does not need to
correspond to a physician’s opinion because the Commissioner has the final authority to make
determinations or decisions on disability. Rudd, 531 F. App’x at 728.
Here, it appears the ALJ took the entire record into account before rendering his decision.
After a thorough review of the entire medical record, the Court concludes that the ALJ’s decision
regarding Plaintiff’s RFC and Plaintiff’s ability to perform her past relevant work is supported by
substantial evidence.
2. The ALJ's finding that Plaintiff's depression, carpal tunnel syndrome, and joint pain were not
severe impairments was not based on substantial evidence.
Plaintiff argues that ALJ failed to consider Plaintiff’s depression, carpal tunnel syndrome,
and joint pain as severe impairments. As to depression, the ALJ correctly found the following:
Notes from Dr. []Ferland include depression in the assessment part of the record, but
there is no discussion of the condition. In June of 2011, when the claimant began
treatment with Dr. Cathy L. Hammond-Moulton, her record noted “no depression.”
Although depression may be an occasional problem, the record does not reflect any
sustained treatment from a mental health provider and does not support the allegation
of depression as a severe impairment.
(Tr. 31). Additionally, in Plaintiff’s last visit to Dr. Ferland in November 2007, Dr. Ferland did not
mention depression in his assessment of Plaintiff. (Tr. 387-88).
A mere diagnosis of a condition does not establish a severe impairment or the existence of
a functional limitation. Marcum v. Colvin, No. CV 16-86-WOB-CJS, 2017 WL 1129943, at *8
(E.D. Ky. Feb. 28, 2017), report and recommendation adopted, No. CV 2016-86 (WOB-CJS), 2017
WL 1129594 (E.D. Ky. Mar. 24, 2017); Higgs, 880 F.2d at 863 (“The mere diagnosis of arthritis,
of course, says nothing about the severity of the condition.”) (citing Foster, 853 F.2d at 489

18

(diagnosable impairment not necessarily disabling)). “[I]t is [the plaintiff’s] burden to prove the
severity of her impairments.” Higgs, 880 F.2d at 863 (citing Murphy v. Sec’y of Health & Human
Servs., 801 F.2d 182, 185 (6th Cir.1986)).
Accordingly, based upon a review of the medical records, the Court concludes that the ALJ’s
finding regarding Plaintiff’s depression is supported by substantial evidence.
As to Plaintiff’s joint pain and carpal tunnel syndrome, the ALJ found:
The claimant’s allegations of joint pain are credible, but not to the extent that they
qualify as a severe impairment. Dr. Bruce Davis examined her in 2012 and found that
she had no tenderness in her wrist or hand. She had normal finger sensation, fist
making and finger-thumb opposition. She had reduced grip, but no atrophy and no
swelling, redness, warmth or nodules. She had full range of motion in both shoulders
and elbows. Although she had a positive rheumatoid factor from a blood panel, her
joint limitations are not severe, based on the observations of Dr. Davis. The doctor
suspected that she might have carpal tunnel syndrome, but at the time of her date last
insured, there is no evidence that this condition was a medically diagnosed
impairment.
(Tr. 32).
Plaintiff cites to medical records from Dr. Allen, Dr. Obianyo and Dr. Hammond-Moulton
(Tr. 336, 466, 497-515) in support of her argument that she suffered from carpal syndrome that the
ALJ should have found was a severe impairment. (Docket Entry No. 12, at 15-16). However, these
medical records are dated after the expiration of her insured status. Plaintiff does not cite any
diagnosis of carpal tunnel syndrome prior to the expiration of her insured status. “Evidence of
disability obtained after the expiration of insured status is generally of little probative value.”
Strong, 88 F. App’x at 845. Thus, the Court concludes that the ALJ properly concluded that the
impairment was not medically determinable prior to the expiration of her insured status.
3. The ALJ failed to apply the proper pain standard and failed to evaluate properly and assess
Plaintiff's credibility.

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Plaintiff argues that the ALJ failed to apply the proper pain standard and has
mischaracterized the evidence in the record in finding Plaintiff only partially credible. (Docket
Entry No. 12, at 16). Plaintiff argues that the record contains abundant references to long-standing
pain suffered by Plaintiff and that “[t]hese findings were apparently never considered and the
[ALJ’s] decision is contrary to the Commissioner’s policy in evaluating the severity of the
Claimant’s fibromyalgia syndrome.” Id. at 17. Plaintiff also contends that the ALJ failed to
consider Plaintiff’s work history “which supports a favorable inference regarding credibility.” Id.
at 18. Defendant contends that the ALJ properly found Plaintiff’s allegations inconsistent with the
record as a whole, including her treatment and medical proof. (Docket Entry No. 13, at 5).
“In making a credibility determination, Social Security Ruling 96-7p provides that the ALJ
must consider the record as a whole, including objective medical evidence; the claimant's statements
about symptoms; any statements or other information provided by treating or examining physicians
and other persons about the conditions and how they affect the claimant; and any other relevant
evidence.” Reynolds v. Comm'r of Soc. Sec., 424 F. App'x 411, 417 (6th Cir. 2011) (quoting SSR
96-7p, 1996 WL 374186, at *2 (July 2, 1996)). “Social Security Ruling 96-7p . . . requires the ALJ
explain his credibility determinations in his decision such that it ‘must be sufficiently specific to
make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the
individual's statements and the reasons for that weight.’” Rogers v. Comm'r of Soc. Sec., 486 F.3d
234, 248 (6th Cir. 2007). An ALJ “is not required to analyze the relevance of each piece of evidence
individually. Instead, the regulations state that the decision must contain only ‘the findings of facts
and the reasons for the decision.’” Bailey v. Comm'r of Soc. Sec., 413 F. App'x 853, 855 (6th Cir.
2011) (quoting 20 C.F.R. § 404.953); see Loral Def. Sys.-Akron v. N.L.R.B., 200 F.3d 436, 453 (6th

20

Cir. 1999) (“An ALJ can consider all the evidence without directly addressing in his written decision
every piece of evidence submitted by a party. Nor must an ALJ make explicit credibility findings
as to each bit of conflicting testimony, so long as” the ALJ’s treatment of the evidence as a whole
shows that the ALJ “implicitly resolve[d] such conflicts.”) (citations and internal quotation marks
omitted); accord Bowman v. Chater, No. 96–3990, 1997 WL 764419, at *4 (6th Cir. Nov. 26, 1997).
If an ALJ “simply erred in a factual finding,” courts “are not to second-guess,” “[a]s long as the ALJ
cited substantial, legitimate evidence to support his factual conclusions.” Ulman v. Comm’r of Soc.
Sec., 693 F.3d 709, 714 (6th Cir. 2012).

“[H]armless error analysis applies to credibility

determinations in the social security disability context.” Id.
Title 20 C.F.R. § 404.1529(c)(3) provides:
Evaluating the intensity and persistence of your symptoms, such as pain, and
determining the extent to which your symptoms limit your capacity for work—
(3) Consideration of other evidence. Since symptoms sometimes suggest a greater
severity of impairment than can be shown by objective medical evidence alone, we
will carefully consider any other information you may submit about your symptoms.
The information that you, your treating or nontreating source, or other persons
provide about your pain or other symptoms (e.g., what may precipitate or aggravate
your symptoms, what medications, treatments or other methods you use to alleviate
them, and how the symptoms may affect your pattern of daily living) is also an
important indicator of the intensity and persistence of your symptoms. Because
symptoms, such as pain, are subjective and difficult to quantify, any
symptom-related functional limitations and restrictions which you, your treating or
nontreating source, or other persons report, which can reasonably be accepted as
consistent with the objective medical evidence and other evidence, will be taken into
account as explained in paragraph (c)(4) of this section in reaching a conclusion as
to whether you are disabled. We will consider all of the evidence presented,
including information about your prior work record, your statements about your
symptoms, evidence submitted by your treating or nontreating source, and
observations by our employees and other persons. . . . Factors relevant to your
symptoms, such as pain, which we will consider include:
(i) Your daily activities;

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(ii) The location, duration, frequency, and intensity of your pain or
other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any
medication you take or have taken to alleviate your pain or other
symptoms;
(v) Treatment, other than medication, you receive or have received
for relief of your pain or other symptoms;
(vi) Any measures you use or have used to relieve your pain or other
symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes
every hour, sleeping on a board, etc.); and
(vii) Other factors concerning your functional limitations and
restrictions due to pain or other symptoms.
Id.
“An ALJ, however, is not required to explicitly discuss every § 404.1529(c)(3) factor in [the
credibility] assessment.” Ausbrooks v. Astrue, No. CIV.A. 12-12144, 2013 WL 3367438, at *19
(E.D. Mich. July 5, 2013); Barney v. Comm'r of Soc. Sec., No. 1:08-CV-1225, 2010 WL 1027867,
at *2 (W.D. Mich. Mar. 18, 2010) (rejecting the plaintiff's argument that the ALJ should have
considered his work history in the disability determination). In weighing the factors in 20 C.F.R.
§ 404.1529(c)(3), “the Commissioner has the power and discretion to weigh all of the evidence and
to resolve the significant conflicts in the administrative record.” Walters v. Comm'r of Soc. Sec., 127
F.3d 525, 531 (6th Cir. 1997). An ALJ’s credibility determination is entitled to great deference.
Ulman, 693 F.3d at 714 (“As long as the ALJ cited substantial, legitimate evidence to support his
factual conclusions, we are not to second-guess: ‘If the ALJ's decision is supported by substantial
evidence, then reversal would not be warranted even if substantial evidence would support the
opposite conclusion.’”) (citation omitted).
The ALJ specifically found that Plaintiff’s fibromyalgia was a severe impairment. (Tr. 31).
As to Plaintiff’s credibility the ALJ found the following:

22

The claimant is considered only partially credible. Her testimony suggests total
disability and many days spent without the capability to function. However, the
office notes from treating physicians do not support her testimony. Dr. McFerland
made it a point to note her attitude in 2005. The claimant told him she had been
working since she was 14 years old and refused to work anymore. He concluded that
she was not disabled at that time. The imaging studies do not support her allegations
of pain. She had studies done in 2004 that revealed only mild and minimal changes
in her spine. Her latest MRIs do not suggest anything more severe than those taken
in 2004. She appears to have fully recovered from her heart repair and now has an
ejection fraction of 55 to 65 percent. While her fibromyalgia continues to be a
problem, there is nothing in the record or the findings from Dr. Davis to suggest that
she cannot sustain light exertion level work.
(Tr. 35-36).
Although Plaintiff testified that she could not walk long distances during the relevant time
period (Tr. 57), Dr. Cuevas noted on April 27, 2006, that Plaintiff reported that she exercised 180
minutes, 3 to 4 days a week (Tr. 255), and noted on March 10, 2008, that Plaintiff reported that she
exercised on a treadmill “almost every day.” (Tr. 248). In May 2006, Dr. Cuevas stated that
Plaintiff needed “regular non-strenuous exercise” (Tr. 254), and in December 2007, stated that
Plaintiff would “benefit from regular exercise” (Tr. 253). The ALJ also noted Plaintiff’s statements
to Dr. Ferland in January 2005 that she “‘refuse[d] to work’” and that she was “essentially
demanding that she [was] entitled to disability.” (Tr. 34, 35, 374). However, Dr. Ferland opined
that her impairments were not disabling. (Tr. 374). As to Plaintiff’s assertion that her work history
supports her credibility, Plaintiff’s earning also show that she had several years with no earnings and
low earnings in other years. (Tr. 147).
In construing the record as a whole, the Court concludes that the ALJ properly evaluated
Plaintiff's credibility based upon substantial evidence in the record.
4. Evidence submitted to the Appeals Council.

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After the ALJ’s decision, Plaintiff submitted to the Appeals Council Disability Claim Forms
for American Bankers Life Assurance Company of Florida signed by Dr. Ferland, stating that
Plaintiff was “permanently disabled” from her occupation, but the Appeals Council declined
Plaintiff’s request for review of the ALJ’s decision. (Tr. 1-5, 18-25, 516-522). Contrary with his
medical record dated January 20, 2005, Dr. Ferland remarked that Plaintiff’s disability began on that
date. (Tr. 19-25, 374, 516-522).
“[W]here the Appeals Council considers new evidence but declines to review a claimant’s
application for disability insurance benefits on the merits, the district court cannot consider that new
evidence in deciding whether to uphold, modify, or reverse the ALJ’s decision.” Cline v. Comm'r
of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996) (citing Cotton v. Sullivan, 2 F.3d 692, 69–96 (6th Cir.
1993)); Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001) (The Sixth Circuit “has repeatedly held
that evidence submitted to the Appeals Council after the ALJ’s decision cannot be considered part
of the record for purposes of substantial evidence review.”). Thus, Plaintiff’s reference that “Dr.
Ferland’s opinion regarding continuing disability from 2005 forward only bolsters the opinion of
Dr. Davis,” (Docket Entry No. 12, at 14), cannot be considered part of the record for purposes of
substantial evidence review.
V. CONCLUSION
In sum, the Court concludes that the findings of the ALJ are supported by substantial
evidence on the record as a whole, and are free from legal error. With such support, the ALJ’s
decision must stand, even if the record also contains substantial evidence that would support the
opposite conclusion. E.g., Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005).

24

For all of the reasons stated, the Court will deny Plaintiff’s Motion for Judgment on the
Administrative Record. (Docket Entry No. 14).
An appropriate Order shall be entered.

__________________________________________
KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE

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