McLean v. Social Security Administration

Filing 18

MEMORANDUM OPINION signed by Senior Judge Thomas Wiseman on 6/21/2017. (ab)

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

PATRICIA JO MCLEAN
V.

) No. 3:14-01332
Senior Judge Wiseman

NANCY BERRYHILL, '
acting Commissioner of the
Social Security Administration

)
)
)

MEMORANDUM
I. Introduction
Pending before the court is the Plaintiff's Motion For Judgment On The Administrative
Record (Docket No. 11). The Defendant has filed a Response (Docket No. 12) to the Motion,
and the Plaintiff has filed a Reply (Docket No. 14). For the reasons set forth herein, the
Plaintiff s Motion is DENIED, and the decision of the Social Security Administration is
AFFIRMED.
II. Procedural Background
In August 2010, the Plaintiff filed an application for supplemental security income,
disability insurance benefits, and disabled widow's benefits under the Social Security Act.
(Administrative Record ("AR" ), at 11, 131-134 (Docket No. 9)). The Plaintiff's application
alleged disability beginning on October 15, 2009. (Id.)' After receiving initial denials of the
' Nancy Berryhill became acting Commissioner for the Social Security Administration
on January 23, 2017.
a The Plaintiff filed a previous application for benefits, which was denied by an
administrative law judge on July 1, 2009. (Id., at 70-81). The Plaintiff appealed that decision to
the Appeals Counsel, and ultimately to federal district court, but the decision was affirmed. ,See

application, the Plaintiff requested a hearing before an administrative law judge ("ALJ"). (Id.)
The ALJ held a hearing on November 28, 2012 at which the Plaintiff appeared with a nonattorney representative and testified in support of her claim. (Id , at 11, 26-59). A friend of the
Plaintiff, as well as a vocational expert, also testified at the hearing. (Id.)
The ALJ issued a written decision on January 11, 2013, concluding that the Plaintiff was
not disabled during the relevant time period. (Id., at 8-25). In reaching her decision, the ALJ
found as follows:
1. The claimant meets the insured status requirements of the Social Security Act
through September 30, 2005.
2. It was previously found that the claimant is the unmarried widow of the
deceased insured worker and has attained the age of 50. The claimant met the nondisability requirements for disabled widow's benefits set forth in section 202(e) of
the Social Security Act.
3. The prescribed period ended on July 31, 2012.
4. The claimant has not engaged in substantial gainful activity since October 15,
2009, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
5. The claimant has the following severe impairments: bulging discs/low back
syndrome, degenerative disc disease of the cervical spine, hepatitis C, chronic
obstructive pulmonary disease, and seizure disorder (20 CFR 404.1520(c) and
416.920(c)).
6. The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).
7. After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform less than the full range of
light work as defined in 20 CFR 404.1567(b) and 416.967(b). Specifically, she

Patricia Jo McLean v. Carolyn W. Colvin, 3:11 cv00236 (Docket Nos. 33, 34).
2
L.! 1.

has the capacity to lift 15 to 20 pounds occasionally. For any given eight-hour
workday, she can stand and walk for four hours. She has no sitting restrictions.
She can perform push/pull actions only occasionally and must avoid concentrated
exposure to airborne contaminants. The claimant can perform frequent postural
activities except that she would be precluded from climbing ladders, ropes, or
scaffolding, and permitted to balance only occasionally. The claimant must avoid
unprotected heights and moving machinery because of additional limitations
imposed by her epilepsy. She would be able to carry out at least simple directions,
maintain concentration and persistence sufficient to perform routine and/or
repetitive one through two-step tasks. Production pace work and assembly line
work would be precluded. She would be unable to interact with the public on a
regular basis, but can interact with co-workers and supervisors. She can adapt to
gradual and infrequent changes.
8. The claimant is unable to perform any past relevant work (20 CFR 404.1565
and 416.965).
9. The claimant was born on June 8, 1960 and was 49 years old, which is defined
as a younger individual age 18-49, on the alleged disability onset date (20 CFR
404. 1563 and 416.963).
10. The claimant has a limited education and is able to communicate in English
(20 CFR 404.1564 and 416.964).
11. Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding
that the claimant is `not disabled,' whether or not the claimant has transferable job
skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
12. Considering the claimant's age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969,
and 416.969(a)).
13. The claimant has not been under a disability, as defined in the Social
Security Act, from October 15, 2009, through the date of this decision (20 CFR
404.1520(g) and 416.920(g)).
(AR, at 13-21).
The Appeals Council denied the Plaintiff's request for review of the ALJ decision (AR, at
1-5), which became the final decision of the Social Security Administration ("SSA"), Sims v.

Apfel, 530 U.S. 103, 107, 120 S. Ct. 2080, 2083, 147 L. Ed. 2d 80 (2000). This action, seeking
review of that decision, has been timely filed, and the Court has jurisdiction under 42 U.S.C. §
405(g) to adjudicate it.
III. Review of the Record
At the hearing before the ALJ, the Plaintiff testified that she was 53 years old and had a
ninth-grade education. (AR, at 30). According to the Plaintiff, she is unable to work because she
cannot breathe, has a hard time doing anything socially, and is tired all the time. (Id., at 30-31).
The Plaintiff further testified that due to hip pain, she is unable to stand and/or walk for over 40
minutes, or to sit for over 45 minutes, in an eight-hour period. (Id., at 31-32, 34). The Plaintiff
estimated her pain level to be an eight on a scale of one to ten, with ten as the most severe. (Id.,
at 33). The Plaintiff testified that she takes one to two naps per day that last an average of one
hour. (Id.)
The Plaintiff indicated that she had been diagnosed with COPD [chronic obstructive
pulmonary disease] and has been prescribed two types of inhalers to treat the condition. (Id., at
34-35). According to the Plaintiff, she has reduced her smoking habit to a quarter of a pack of
cigarettes per day. (Id.). The Plaintiff testified that her breathing issues limit her to 15 minutes of
standing at a time. (Id., at 35-36). The Plaintiff estimated that the maximum weight she could
carry or lift would be 15 pounds. (Id., at 37). When asked how her condition had changed since
her previous hearing in 2009, the Plaintiff said that everything had gotten a lot worse, including
her breathing, eyesight, and hip. (Id., at 41-42). She also indicated that she now has constant
headaches because of her neck. (Id.)
Jackie Hobdy testified that the Plaintiff is his fianc6 and that they had been seeing each
2

other for four and one-half years. (Id., at 43). According to Mr. Hobdy, he sees the Plaintiff every
day. (Id., at 44). Mr. Hobdy testified that the Plaintiff drove them to the hearing because he does
not have a driver's license. (Id.) Mr. Hobdy explained that he is transported by either the Plaintiff
or his mother to visit the Plaintiff every day. (Id.) Mr. Hobdy testified that the Plaintiff's hip pain
and shortness of breath keep her from being able to work. (Id.) He explained that the Plaintiff
does household chores, but it takes her a long time because she has to take intervals of rest. (Id.,
at 45). Mr. Hobdy further testified that the Plaintiff takes Dilantin for seizures but he has not
witnessed her have a seizure. (Id.) According to Mr. Hobdy, the Plaintiff has had episodes in
which she says she feels a seizure coming on, but after applying ice and a cloth to her face, she
says she feels better. (Id., at 45-46). Since her previous hearing, Mr. Hobdy said, the Plaintiff's
hip and lung issues have gotten worse. (Id., at 46). Mr. Hobdy testified that the Plaintiff had
reduced her smoking habit to three-quarters of a pack to one pack of cigarettes per day. (Id.)
After Mr. Hobdy testified, the ALJ asked the Plaintiff to retake the witness stand, and
asked her if the medical records were correct that she told her doctor she had two seizures in
February of 2012. (Id., at 47-48). The Plaintiff said she did and that Mr. Hobdy was not at her
house when the seizures occurred. (Id., at 48-49).
The vocational expert, Pedro Roman, testified that the Plaintiff had worked as a cashier in
the past, which is considered light work with a Specific Vocational Preparation rating of 3. (Id.,
at 50). The ALJ asked Mr. Roman various hypothetical questions. (Id., at 50-55). In response to
a hypothetical that assumed the Plaintiff's age, education, work experience, and residual
functional capacity as set forth above, Mr. Roman testified that the individual in the hypothetical
would be able to perform light occupations with a sit/stand option, and with a 30% reduction in

the number of occupations in the economy. (Id.) Specifically, Mr. Roman testified, the
individual would be able to work as a companion, file clerk, inspector and hand packager, and
mail clerk. (Id.)
In her subsequent written opinion, the ALJ reviewed the medical evidence as follows:
On June 9, 2009, the claimant presented to the health department with complaints
of seizure disorder. (Exhibit 4F). The claimant reported weekly episodes of loss of
consciousness and shortness of breath. Treatment records note that the claimant
denied having epilepsy, but rather experienced `seizures' since 1998. (Exhibit 4F,
p. 8). The nurse's diagnosis of the claimant was seizure, hepatitis C, chronic
obstructive pulmonary disease, and tobacco abuse.
The claimant presented to Roy Johnson, M.D. for a consultative examination on
December 27, 2010. (Exhibit 2F). The claimant reported a history of chronic
obstructive pulmonary disease and seizure disorder. Dr. Johnson diagnosed the
claimant with cervical spine syndrome, low back syndrome with radiculopathy,
seizure disorder, hepatitis C infection, and chronic obstructive pulmonary disease.
(Id., at 3). X-rays of the claimant's lumbar spine were normal. (Exhibits 1F, p. 2
and 2F, p. 1). X-rays of the claimant's cervical spine revealed degenerative disc
disease at C5-C6 through C6-C7. (Exhibits 1F, p. 1 and 217, p. 1). On physical
examination, the claimant had full range of motion of the shoulders, elbows, and
wrists bilaterally. The claimant demonstrated full range of motion on the left hip,
and 70 degrees flexion for the right hip. The claimant also demonstrated 3 out of 5
grip strength and full range of motion of his [sic] knees and ankles bilaterally.
In March 2011, the claimant's chest x-ray revealed that the heart size and
pulmonary vascularity are within normal limits. (Exhibit 517). In addition, there
was no alveolar consolidation, effusion or pneumothorax, and no acute bony
abnormality seen. The impression was no acute infiltrate. On April 27, 2011, the
claimant returned to Dr. Johnson for an examination. (Exhibit 7F). The claimant
reported chronic obstructive pulmonary disorder, seizure disorder, hepatitis C,
chronic back pain, bulging disc in the neck and back, as well as depression. Vital
signs were as follows: height — 67 inches; weight —132 pounds; blood pressure —
135/69; pulse — 67; temperature — 96.8; and visual acuity without glasses — right
20/200, left 20/25, and both 20/25. The claimant's lung fields were clear to
auscultation, no wheeze, rhonchi, or Tales noted. (Id., at 2).
In February 2012, the claimant presented to the health department for a hepatitis E
vaccine and a medication refill of Dilantin. (Exhibit 18F). The claimant reported
that she had a seizure three days prior to this visit. She stated that she was
Z

watching television and all of a sudden, she woke up on the floor. A registered
nurse diagnosed the claimant with several diagnoses, to include chronic
obstructive pulmonary disease, tobacco, and seizure disorder. (Id., at 2).
In a medical assessment for ability to perform work-related activities dated
December 27, 2010, Dr. Johnson deemed the claimant able to occasionally lift 15
to 20 pounds. (Exhibit 2F). According to Dr. Johnson, the claimant can stand and
walk for four out of eight hours with normal breaks. Dr. Johnson gave the
claimant `no sitting restrictions at this time.' On May 8, 2011, Dr. Johnson
determined the claimant has the capacity to occasionally lift and/or carry 20
pounds, and frequently lift and/or carry 10 pounds. (Exhibit 7F). For any given
eight-hour workday, Dr. Johnson noted the claimant can stand and walk for at
least two hours and sit for about six hours.
On May 23, 2011, Saul A. Juliao, M.D. conducted a physical, functional capacity
assessment. (Exhibit 8F). Dr. Juliao deemed the claimant able to work at less than
a full range of light exertion. Specifically, Dr. Juliao indicated that the claimant
can occasionally lift and/or carry 20 pounds, and frequently lift and/or carry 10
pounds. For any given eight-hour workday, the claimant can stand, walk, and sit
for about six hours, respectively. As for postural limitations, she can frequently
climb ramps and stairs, balance, stoop, kneel, crouch and crawl. (Exhibit 8F, p. 3).
However, Dr. Juliao determined that the claimant should avoid climbing ladders,
ropes, and scaffolds. Concerning visual'limitations, the claimant is limited in
depth perception and field of vision. According to Dr. Juliao, the claimant should
avoid moderate exposure to vibration and all exposure to hazards. (Id., at 5).
In a medical evaluation by Dr. Juliao on May 24, 2011, he found some worsening
of the claimant's condition, which was substantiated by medical findings. (Exhibit.
9F). Medical findings included no vision in the claimant's right eye, left eye 20/20; and tenderness in L4-5 paraspinal area.
(AR, at 17-18).
IV. Analysis
A. Standard of Review
This court's review of the SSA decision to deny benefits is "`limited to determining
whether the Commissioner's decision is supported by substantial evidence and was made
pursuant to proper legal standards."' Miller vt.~Cbmm'r ofSoc. Sec., 811 F.3d 825, 833 (0 Cir.

7

2016)(quoting Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 405-06 (6" Cir. 2009)).
"Substantial evidence" constitutes "`more than a scintilla' but less than a preponderance" and 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 (6" Cir. 2001)). In making that
determination, the court is to examine the evidence in the record as a whole and "`take into
account whatever in the record fairly detracts'from its weight."' Conner v. Comm'r of Soc. Sec.,
658 F. App'x 248, 253 (6" Cir. 2016)(quoting Abbott v. Sullivan, 905 F.2d 918, 923 (6" Cir.
1990)). If the court finds substantial evidence to support the decision, it must affirm and "may
not inquire whether the record could support a different decision." Id. The court may not resolve
conflicts in evidence or decide questions of credibility. Id.; Ulman v. Comm'r of Soc. Sec., 693
F.3d 709, 713 (6" Cir. 2012). If the ALJ fails to follow agency rules and regulations, however,
his or her decision is not supported by substantial evidence, even if the ALJ's conclusion may be
justified based upon the record. Miller, 811 F.3d at 833.
B. The Five-Step Analysis
The Social Security Act defines "disability" as the "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). A "physical or mental
impairment" is defined as "an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3).
In determining whether the claimant is disabled within the meaning of the Social Security
8

Act, the ALJ is to apply a five-step analysis as set forth in 20 C.F.R. § 404.1520(a). Kepke v.

Comm'r of Soc. Sec., 636 F. App'x 625, 627-28 (6" Cir. 2016). "If the claimant is found to be
conclusively disabled or not disabled at any step, the inquiry ends at that step." Id , at 627
(quoting Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 652 (6" Cir. 2009)). The analytical
framework is as follows:
1) If the claimant is doing substantial gainful activity, the claimant is not disabled.
2) If the claimant does not have a severe medically determinable physical or
mental impairment — i.e., an impairment that significantly limits his or her
physical or mental ability to do basic work activities — the claimant is not
disabled.
3) If the claimant has a severe impairm nt(s) that meets or equals one of the
listings in Appendix 1 to Subpart P of the regulations and meets the duration
requirement, the claimant is disabled.
4) If the claimant's impairment does not prevent him or her from doing his or her
past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant is not
disabled. If the claimant cannot make an adjustment to other work, the claimant is
disabled.

Kepke, 636 F. App'x at 627-28. The burden of proof is on the claimant through the first four
steps of the analysis, but then shifts to the Commissioner, if the analysis reaches the fifth step, to
"`identify a significant number of jobs in the economy that accommodate the claimant's residual
functional capacity... "' Id., at 628 (quoting Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390
(6th Cir.2004)).
In this case, the ALJ found the Plaintiff was capable of performing light work with certain
limitations. (AR, at 20-21). The Social Security regulations define "light work" as follows:
(b) Light work. Light work involves lifting no more than 20 pounds at a time with
C

frequent lifting or carrying of objects weighing up to 10 pounds. Even though the
weight lifted may be very little, a job is in this category when it requires a good
deal of walking or standing, or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the ability to do
substantially all of these activities. If someone can do light work, we determine
that he or she can also do sedentary work, unless there are additional limiting
factors such as loss of dexterity or inability to sit for long periods of time.
20 C.F.R. § 404.1567(b).
C. Plaintiff's Statement of Errors'
1. Failure to evaluate medical opinions
The Plaintiff first claims that the ALJ's residual functional capacity finding is
unsupported by substantial evidence because she failed to evaluate all the medical opinions in the
record, and because she failed to reconcile the differences in the opinions offered by Dr. Johnson.
"Residual functional capacity" ("RFC") is an assessment of the claimant's "remaining capacity
for work" once her limitations have been taken into account. Howard v. Comm'r of Soc. Sec.,
276 F.3d 235, 239 (6`" Cir. 2002); 20 C.F.R. § 404.1545; 416. 945. In determining the RFC, the
ALJ is required to consider the combined effect of all of the claimant's ailments. 42 U.S.C. §
423(d)(2)(B); 20 CFR § 404.1545(e). See also Glenn v. Comm'r of Soc. Sec., 763 F.3d 494,499
(6th Cir. 2014). The RFC is to be based on all relevant medical and other evidence. Howard, 276
F.3d at 239; 20 C.F.R. § 404.1545; 416. 945.
The Plaintiff contends that, in fashioning the RFC, the ALJ erred in failing to consider the
medical opinions offered by Dr. Kathryn Steele, Dr. Rebecca Sweeny, Dr. George Davis, Dr.

' The Plaintiff's appeal challenges the ALJ's conclusions regarding her application for
disabled widow's benefits for the period ending July 31, 2012. She does not appear to challenge
the ALJ's decision that she is not entitled to disability insurance benefits for failure to establish
that she was disabled prior to September 30, 2005.
It$]

Nathaniel Robinson, and both opinions offered by Dr. Saul A. Juliao. The ALJ is required to
"evaluate every medical opinion and consider the following non-exhaustive factors in deciding
what weight to give each opinion: examining relationship, treatment relationship, the extent to
which medical signs and laboratory findings support the opinion, the consistency of the opinion
with the record as a whole, and the specialization of the doctor rendering the opinion." Poe v.

Comm'r ofSoc. Sec., 342 Fed. App'x 149, 156<(6`" Cir. 2009)(citing 20 C.F.R. §§ 404.1527(d),
416.927(d)).
The ALJ evaluated the opinions of Dr. Steele, Dr. Sweeny, and Dr. Davis in concluding
that the Plaintiff's mental impairment of adjustment disorder was non-severe because it did not
cause more than minimal limitation in her ability to perform basic mental work activities:
S. Kathryn Steele, Psy.D./HSP administered a mental status examination on July
6, 2011. (Exhibit 1OF). Dr. Steele diagnosed the claimant with adjustment
disorder with depressed mood. (Id., at 3). The claimant's current Global
Assessment of Functioning (GAF) score was assessed at 53, indicating moderate
difficulty in social and/or occupational functioning. DSM-IV-TR (2000 text
revision). She stated that she had not been prescribed psychotic medications since
2005. The claimant denied current mental health concerns and reported a history
of being prescribed Paxil, Xanax, and Zoloft through her former primary care
physician.
Dr. Steele observed that the claimant's gait was limping, which she attributed to
her back pain. (Exhibit l OF, p. 2). The claimant reported that her driver's license
was suspended in 2006, but she is eligible to have it reinstated. She indicated that
she is capable of driving without difficulty pending her driver's license being
reinstated. Dr. Steele estimated the claimant's estimated intellectual functioning
within the low average range.
As for Dr. Steele's medical source opinion, the claimant will be capable of
recalling and understanding simple and complex directions. (Exhibit l OF). Dr.
Steele noted that in a structured environment, the claimant demonstrated an ability
to maintain concentration and carry out simple instructions. According to Dr.
Steele, the claimant appeared capable of interacting with co-workers or
supervisors on an appropriate level. She also appeared capable of responding
11

appropriately to changes in a routine and/or work setting.
On July 18, 2011, Rebecca Sweeney, Ph.D. completed a Psychiatric Review
Technique Form. (Exhibit 12F). Dr. Sweeney indicated that the claimant has
`mild' degrees of limitation with restriction of activities of daily living and
difficulties in maintaining concentration, persistence, or pace. (Id., at 11).
However, Dr. Sweeney determined that the claimant has no limitation with
difficulties in maintaining social functioning. According to Dr. Sweeney, the
claimant has experienced no episodes of decompensation. Dr. Sweeney concluded
that the claimant's mental impairment is not severe. (Exhibit 12F, p. 1).
On September 1, 2011, George Davis, Ph.D. submitted a medical evaluation of
the claimant. (Exhibit 14F). After review, Dr. Davis documented that the claimant
alleged no worsening of mental impairments. As a result, Dr. Davis affirmed the
initial mental assessment by Dr. Sweeney.

(Id., at 14-15).
Applying these opinions in the context of the four broad functional areas set out in the
disability regulations for evaluation of mental disorders, the ALJ concluded that the Plaintiff had
mild limitations in "activities of daily living," and "concentration, persistence, or pace," and had
no limitations in "social functioning" and "episodes of decompensation." (Id., at 15-16). Eased
on these findings, the ALJ determined that the Plaintiff's medically determinable mental
impairment was non-severe. (Id.) The ALJ explained, however, that the RFC assessment reflects
the degree of limitation she found in the mental function analysis. (Id., at 16).
The Plaintiff contends that the ALJ failed to evaluate the weight given to these opinions
and explain their impact in her decision when determining her RFC. Although the ALJ did not
repeat the extended discussion of these three opinions in the RFC section of the opinion,
however, she clearly incorporated their opinions regarding the Plaintiff s limitations in her RFC
finding. As part of the RFC, the ALJ found that the Plaintiff "would be able to carry out at least
simple directions, maintain concentration and persistence sufficient to perform routine and/or
12

repetitive one through two-step tasks." (Id.) She found that "[p]roduction pace work and
assembly line work would be precluded" and that the Plaintiff would be "unable to interact with
the public on a regular basis, but can interact with co-workers and supervisors." (Id.) The ALJ
also found that the Plaintiff "can adapt to gradual and infrequent changes." (Id.) These findings
are obviously based on Dr. Steele's opinion that the Plaintiff would be capable of: recalling and
understanding simple and complex directions; maintaining concentration and carrying out simple
instructions in a structured environment; interacting with co-workers or supervisors on an
appropriate level; and responding appropriately to changes in a routine and/or work setting. (Id.,
at 14). See Poe, 342 Fed. App'x, at 157 (ALJ is not required to recite the medical opinion of a
physician verbatim in her residual functional capacity finding).
The RFC is also consistent with Dr. Sweeney's opinion, as well as Dr. Davis's opinion,
that the Plaintiff had mild limitations in "activities of daily living," and "concentration,
persistence, or pace," and had no limitations in "social functioning" and "episodes of
decompensation." (Id., at 15). The Plaintiff does not specify any aspect of these opinions that
should have been included but were not. Thus, her argument with regard to these three opinions
is without merit.
As for Dr. Juliao, the Plaintiff contends that, although the ALJ discussed the medical
opinion provided by Dr. Juliao on May 23, 2011, she failed to evaluate the opinion he provided
the next day, on May 24, 2011. As set forth above, the ALJ discussed Dr. Juliao's May 23, 2011
"physical, functional capacity assessment" and explained that he deemed the Plaintiff to be able
to work at less than a full range of light exertion. (Id., at 18). The ALJ noted that, according to
Dr. Juliao, the Plaintiff could: occasionally lift and/or carry 20 pounds and frequently lift and/or
13

carry 10 pounds; stand, walk, and sit for about six hours in an eight-hour workday; and
frequently climb ramps and stairs, balance, stoop, kneel, crouch and crawl. (Id.) As for
limitations, the ALJ noted that Dr. Juliao opined that the Plaintiff: should avoid climbing
ladders, ropes and scaffolds; is limited in depth perception and field of vision; and should avoid
moderate exposure to vibration and all exposure to hazards. (Id) The ALJ then explained that, in
his medical evaluation of the Plaintiff on May 24, 2011, Dr. Juliao found some worsening of the
Plaintiff's medical conditions, which included "no vision in the claimant's right eye, left eye20/20; and tenderness in L4-5 paraspinal area." (Id)
In evaluating the medical evidence, the ALJ addressed Dr. Juliao's opinion as follows:
As for the opinion evidence, the undersigned gives great weight to the opinion of
Dr. Johnson where he deems the claimant able to occasionally lift 15-20 pounds.
This opinion is consistent with the objective medical evidence. Dr. Johnson also
had the opportunity to examine the claimant. On the other hand, little weight is
given to the opinion of Dr. Juliao, who did not examine the claimant. Dr. Juliao
determined that the claimant can sit for six hours of an eight-hour workday.
However, Dr. Johnson found that the claimant has no sitting restrictions.
(Id., at 19).
A fair reading of the ALJ's decision indicates that she included both Dr. Juliao's
assessments — conducted one day apart - in her conclusion that his opinion should be given little
weight.' Neither of the assessments were based on a physical examination of the Plaintiff and the
ALJ explained that that factor led to her decision to give greater weight to the opinion of Dr.
Johnson.
Finally, the Plaintiff argues that the ALJ failed to mention the medical opinion of Dr.
4

Dr. Juliao himself appears to tie the two assessments together. In his May 24, 2011
assessment, Dr. Juliao specifically refers to his assessment on May 23, 2011 as providing the
basis for his conclusions. (Id., at 229).
14

Robinson. Dr. Robinson provided a one-page medical opinion on September 11, 2011, which
was based on a review of the Plaintiff s file and states: "I have reviewed all the evidence in file
and the physical assessments of 5/23/11 and 5/24/11 are adopted." (Id., at 265). The assessments
to which Dr. Robinson refers are presumably those of Dr. Juliao.
Although the ALJ did not discuss the opinion of Dr. Robinson, her failure to do so does
not undermine her decision. The Sixth Circuit has explained that "[w]hile it might be ideal for an
ALJ to articulate his reasons for crediting or discrediting each medical opinion, it is well settled
that `[a]n ALJ can consider all the evidence without directly addressing in his written decision
every piece of evidence submitted by a parry."' Kornecl v. Comm'r of Soc. Sec., 167 F. App'x
496, 507 (6th Cir. 2006). The ALJ implicitly assessed little weight to the opinion of Dr.
Robinson for the same reason she assessed little weight to the opinion of Dr. Juliao, upon which
Dr. Robinson relied in reaching his opinion. The ALJ's failure to specifically discuss Dr.
Robinson's opinion is harmless given that her analysis is obvious from the record.
2. The differences in the opinions of Dr. Johnson
Next, the Plaintiff argues that the ALJ failed to reconcile the differences between the
opinions given by Dr. Roy Johnson. As noted above, Dr. Johnson examined the Plaintiff on
December 27, 2010, and as part of his narrative report of that examination, he opined as follows:
Ms. McLean may occasionally lift 15 to 201bs. She may stand and walk for four
out of eight hours with normal breaks. ,She has no sitting restrictions at this time.
She should continue to see her doctor in regards to her various medical conditions
and her work activities should not exceed any restrictions placed on her by her
treating physician.
(AR, at 182). Dr. Johnson examined the Plaintiff again on April 27, 2011, and as part of a
questionnaire with multiple choice answers he completed after that visit, he opined that the
15

Plaintiff could occasionally lift and/or carry 20 pounds and could frequently lift 10 pounds. (Id.,
at 210). In answer to a question regarding how long the Plaintiff could stand and/or walk with
normal breaks in an eight-hour workday, Dr,. Johnson checked the box for "[a]t least 2 hours"
rather than the other choices offered: "[1]ess than 2 hours," "[a]bout 6 hours," or [c]annot assess."

(Id., at 215). In answer to a question regarding how long the Plaintiff could sit with normal
breaks in an eight-hour workday, Dr. Johnson checked the box for "[a]bout 6 hours" rather than
the other choices offered: "[1]ess than 6 hours" or [c]annot assess." (Id.) As part of the RFC, the
ALJ adopted Dr. Johnson's opinion that the Plaintiff could stand and walk for four hours, and
had no sitting restrictions. (Id., at 16). The Plaintiff contends that the ALJ erred in failing to
address the changes in Dr. Johnson's opinion on these limitations as reflected in the second
report.
The court is persuaded, however, that the ALJ reasonably relied on Dr. Johnson's first
opinion in fashioning the RFC. As described above, Dr. Johnson's second assessment did not
include the physician's narrative explanation of his findings. Instead, the physician was presented
with multiple choice answers that did not mirror his prior explanation. The question regarding
the Plaintiff's ability to stand and/or walk did not provide a choice for "four hours," and his
choice of "at least two hours" did not contradict the narrative opinion in that regard. The question
regarding the Plaintiffs ability to sit did not provide a choice for "no sitting restrictions," and his
choice of "about six hours" was the closest choice to his narrative opinion. Under these
circumstances, the court concludes that the ALJ did not err in relying on Dr. Johnson's narrative
opinion in fashioning the RFC. See, e.g., Hernandez v. Comm'r of Soc. Sec., 644 F. App'x, 468,
474-75 (6" Cir. 2016)(noting that less weight may be accorded a physician's "check-box
16

analysis" unaccompanied by explanation).
3. Failure to consider Plaintiff s vision impairment
The Plaintiff contends that the ALJ erred in failing to consider her vision impairment as
severe or to otherwise include it as a limitation in the RFC. With regard to the Plaintiff's vision,
as set forth above, the ALJ noted Dr. Johnson's evaluation on April 27, 2011, which found that
the Plaintiff had "[v]isual acuity without glasses: Right 20/200, left 20/25, and both 20/25." (Id.,
at 17, 211). Later in the evaluation, Dr. Johnson indicates that the Plaintiff had no limitations
with regard to vision. (Id., at 215). In his previous evaluation on December 10, 2010, Dr.
Johnson found that the Plaintiff had "[v]isual acuity without glasses: Right no vision was noted,
left 20/30, and both 20/30." (Id., at 181).
The ALJ also noted Dr. Juliao's evaluation on May 23, 2011, which found as follows
regarding the Plaintiff's vision: "12/27/10 PE unremarkable except for right eye no vision. LE
20/30." (Id., at 18, 218). This finding was presumably based on Dr. Johnson's physical
examination of the Plaintiff on December 27, 2010. Later in the evaluation, Dr. Juliao refers to
this finding, and states that the Plaintiff has "monocular vision only." (Id., at 220).
In her decision, the ALJ explained that she accorded more weight to Dr. Johnson's
opinion than to Dr. Juliao's opinion but she did not specifically address the Plaintiff's contention
that her vision constitutes an impairment in fashioning the RFC. (Id., at 19). The court is
persuaded that such an omission is harmless, however, because the ALJ's opinion clearly reflects
that she relied on Dr. Johnson's April 27, 2011 opinion that the Plaintiff had no limitations with
regard to vision. As the ALJ explained, Dr. Juliao's findings with regard to vision were not based
on a physical examination of the Plaintiff, but instead were based on her medical records,
17

specifically Dr. Johnson's examination. The Plaintiff has not cited any other objective medical
evidence or medical opinion that would support a finding that she has a severe or limiting vision
impairment. Thus, the court concludes that there was substantial evidence in the record to
support the ALJ's determination that Plaintiff s vision impairment was not severe and should not
be included as a limitation in the RFC.
4. Failure to support credibility determination with substantial evidence
The Plaintiff argues that the ALJ failed to provide substantial evidence for her
determination that Plaintiff s statements concerning the intensity, persistence and limiting effects
of her symptoms should not be fully credited. An ALJ's analysis of the credibility of a claimant is
accorded "`great weight and deference particularly since the ALJ has the opportunity, which we
do not, of observing a witness's demeanor while testifying."' Sorrell v. Comm'r ofSoc. Sec., 656
F. App'x 162, 173 (6th Cir. 2016)(quotingJones v. Comm'r ofSoc. Sec., 336 F.3d 469, 476 (61'
Cir. 2003)). Although subjective complaints of a claimant can support a claim for disability,
those claims may be discounted if they are inconsistent with the objective evidence in the record.

Id.
In evaluating the Plaintiff's subjective complaints about the intensity and persistence of
symptoms, such as pain, the ALJ is to consider such factors as: (1) the claimant's daily activities;
(2) the location, duration, frequency, and intensity of pain or other symptoms; (3) precipitating
and aggravating factors; (4) the type, dosage, effectiveness and side effects of any medication
. f ,,

taken to relieve the symptoms; (5) treatment, other than medication received, to relieve the
symptoms; (6) measures used to relieve the symptoms; and (7) other factors concerning
functional limitations and restrictions as a result of the symptoms. 20 C.F.R. §§ 404.1529(c),
18

416.929(c); Soc. Sec. Rul. 96-7p.
As set forth above, the Plaintiff testified at the hearing that due to her hip pain, she is
unable to stand for more that 40 minutes, and is unable to sit for more than 45 minutes. The
Plaintiff later testified that her breathing problems keep her from standing for more than 15
minutes at a time. In addition, the Plaintiff testified that she suffered constant headaches because
of her neck condition.
Addressing the Plaintiff s testimony in her written decision, the ALJ explained that the
Plaintiff's statements concerning the intensity, persistence and limiting effects of her symptoms
were not entirely credible. (AR, at 18). The ALJ explained that the medical evidence in the
record showed an isolated finding of degenerative disc disease, but the X-rays on the chest and
lumbar spine were within normal limits. (Id., at 19). In addition, a physical examination revealed
a full range of motion for the Plaintiff s left hip, shoulders, elbows, wrists, knees and ankles; and
70 degrees flexion for the right hip. (Id.) The ALJ also explained that the Plaintiff s complaints
to medical staff regarding the occurrence of seizures and the extent of reduction in her cigarette
smoking were contradicted by Mr. Hobdy. (Id.)
The Plaintiff argues that the medical evidence supports her testimony because one of the
X-rays indicates a mild disc space narrowing and an overall impression of degenerative disc
disease. (AR, at 178). The Plaintiff also points out that in the December 27, 2010 evaluation, Dr.
Johnson noted that the Plaintiff had "[t]enderness to palpation L4-L5 paraspinal area" and a
limped gate. (Id., at 181). Dr. Johnson's impressions included cervical spine syndrome, and low
back syndrome with radiculopathy. (Id., at 182). Finally, the Plaintiff points out that she sought

,

treatment from Dr. Ponce every month from August 2011 to October 2012. (Id., at 304-331).
R

In her opinion, the ALJ noted the findings in the medical records and explained that they
simply did not support the Plaintiffs testimony regarding the intensity and limiting effects of her
symptoms. The ALJ's explanation for reaching that conclusion is more than sufficient. As for her
visits to Dr. Ponce, the Plaintiff has pointed to nothing in the progress notes and other medical
records from Dr. Ponce that would support her description of the intensity of her symptoms.
The Plaintiff also contends that the ALJ erred in relying on the minor discrepancies
between her testimony and Mr. Hobdy as to the amount of cigarettes she smokes daily and the
number of seizures she has suffered in assessing her credibility. In her opinion, however, the ALJ
noted these discrepancies as part of her overall assessment of the Plaintiff s credibility and did
not attach more importance to the discrepancies than they were due.
Finally, the Plaintiff argues that the ALJ failed to consider her testimony about the
restrictions on her daily activities. In her opinion, however, the ALJ summarized the Plaintiff s
testimony about her pain, her difficulty breathing, and the limiting effect it had on her ability to
sit, stand, and sleep. (Id., at 18). She simply concluded that the other evidence in the record did
not support the Plaintiff's testimony. The court is persuaded that substantial evidence supports
F

the ALJ's credibility determination.
5. Reliance on the answer to an incomplete hypothetical question
Finally, the Plaintiff argues that the ALJ's failure to properly fashion the RFC and to
properly assess the Plaintiff's credibility, as she contends above, led her to pose a hypothetical to
the vocational expert at the hearing that failed to include all her limitations. For the reasons set
forth above, the court concludes that substantial evidence supports the ALJ's determinations
regarding the RFC and the Plaintiff's credibility. Accordingly, the court is not persuaded that the

ALJ's decision rested on the answer to an incomplete hypothetical question.

In sum, the Court concludes that the decision of the Social Security Administration is
supported by substantial evidence on the record as a whole, and should be affirmed.
V. Conclusion
For the reasons set forth herein, the Plaintiff's Motion For Judgment On The
Administrative Record (Docket No. 11) is denied.
It is so ORDERED.

THOMAS A. WISEMAN, JR.
U.S. District Judge

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