McWhorter v. Social Security Administration

Filing 21

MEMORANDUM signed by Chief Judge Kevin H. Sharp on 4/14/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
FLORENCE R. MCWHORTER,
Plaintiff,
v.
NANCY BERRYHILL,1
Acting Commissioner of
Social Security,
Defendant.

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No. 3:14-cv-01658
Judge Sharp

MEMORANDUM
Pending before the Court is Plaintiff’s Motion for Judgment on the Administrative Record
(Docket Entry No. 12). 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, Florence R. Mcwhorter, filed a Title II application for disability insurance on
March 21, 2011, alleging disability as of December 18, 2008. (Tr. 102-03). Plaintiff’s claim was

1

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).

denied at the initial level on July 12, 2011, and on reconsideration on October 28, 2011. (Tr. 61-66,
70-72). Plaintiff requested a hearing before an administrative law judge (“ALJ”), which was held
on March 11, 2013. (Tr. 9, 25, 74-75). On April 11, 2013, the ALJ issued a decision finding that
Plaintiff was not disabled. (Tr. 6-20). Plaintiff timely filed an appeal with the Appeals Council,
which issued a written notice of denial on June 26, 2014. (Tr. 1-3). 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 April 11, 2013. (AR p. 6). Based upon the
record, the ALJ made the following enumerated findings:
1.

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

2.

The claimant has not engaged in substantial gainful activity since December
18, 2008, the alleged onset date (20 CFR 404.1571 et seq.).

3.

The claimant has the following severe impairments: lumbar fusion;
fibromyalgia; and post-surgery on right wrist and left thumb with pins (20
CFR 404.1520(c).

4.

The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1(20 CFR 404.1520(d), 404.1525
and 404.1526).

5.

After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) that is limited to lifting and carrying twenty pounds
frequently and ten pounds occasionally;2 standing and/or walking for six

2

The Court notes an obvious scrivener’s error in the ALJ’s decision where the ALJ
transposed the words “frequently” and “occasionally,” as 20 C.F.R. § 404.1567(b) defines “light
work” as “lifting no more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds.” In his hypothetical questions to the vocational expert, the ALJ included
the correct definition of light work. (Tr. 53, 58). The parties do not dispute that the ALJ determined
2

hours in an eight-hour workday; sitting for six hours in an eight-hour
workday; performing occasional postural activities with no use of ladders;
occasionally handling with her light arm; and occasionally thumb-gripping
with her left hand. Additionally, she needs a sit/stand option in thirty-minute
intervals.
6.

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

7.

The claimant was born on September 28, 1959 and was 49 years old, which
is defined as a younger individual age 18-49, on the alleged disability onset
date. The claimant subsequently changed age category to closely approaching
advanced age (20 CFR 404.1563).

8.

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

9.

Transferability of job skills is not material to the determination of disability
because using the 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 82-41and 20 CFR Part 404, Subpart P,
Appendix 2).

10.

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

11.

The claimant has not been under a disability, as defined in the Social Security
Act, from December 18, 2008, through the date of this decision (20 CFR
404.1520(g)).

(AR pp. 11-20).

that Plaintiff could perform light work as defined in 20 C.F.R. § 404.1567(b). From the ALJ’s
opinion and a review of the record, it is clear that the ALJ simply made a drafting error and that this
error does not contradict the ALJ’s ultimate findings. Such error is harmless. Lete v. Colvin, No.
CIV.A. 14-66-GFVT, 2015 WL 4548736, at *5 (E.D. Ky. July 28, 2015); Parrish v. Colvin, No.
3:13-01218, 2014 WL 4053397, at *9 (M.D. Tenn. Aug. 15, 2014), report and recommendation
adopted, No. 3:13-01218, 2015 WL 4994239 (M.D. Tenn. Aug. 20, 2015); Wearen v. Colvin, No.
13-CV-6189P, 2015 WL 1038236, at *13-14 (W.D.N.Y. Mar. 10, 2015) (collecting cases); Ortiz v.
Comm'r of Soc. Sec., No. 6:10-CV-678-ORL-GJK, 2012 WL 603223, at *7 (M.D. Fla. Feb. 24,
2012)
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III. REVIEW OF THE RECORD
The following summary of the medical record is taken from the ALJ’s decision:
The claimant has a history of degenerative changes of the lumbar spine most severe
at L4-5 and post-operative changes related to a prior left hemilaminectomy at L5-S1
with mild to moderate left foraminal stenosis as demonstrated by an MRI performed
on November 17, 2009. A subsequent MRI revealed moderate central stenosis at
L3-4 due to disc bulging and facet hypertrophy. After conservative treatment
measures and epidural steroid injections failed to relieve the claimant's symptoms,
she underwent a decompressive lumbar laminectomy and fusion at L4-5 and L5-Sl
on December 18, 2008, the alleged onset date. Exhibits lF and 3F.
A follow-up treatment note dated January 15, 2009, from the claimant's orthopedic
surgeon, Edward Mackey, M.D., reflects that it was planned for the claimant to
return to work in two months on light duty. However, a couple of months later it was
noted that she was improving slowly and still had lingering back discomfort with
burning pain in her toes although an X-ray showed that her fusion was well-aligned.
She was prescribed Celebrex and Lyrica and given refills of Lortab, and on April 23,
2009, Dr. Mackey ordered therapy for core strengthening with a transition to an
independent gym program. Despite the claimant's ongoing symptoms, Dr. Mackey
gave her light duty restrictions of lifting no more than fifteen pounds, lifting no more
than five pounds frequently, and sitting and standing without limitations. Exhibit 3F.
On May 20, 2009, the claimant complained of worsening symptoms concerning for
neuropathic pain, and she prescribed an increased dosage of Lyrica. However, it was
noted that she still tried to return to her past work. The following month, a lumbar
MRI showed circumferential effacement of the epidural fat around the thecal sac at
L4-5 and L5-S1, a well circumscribed fluid collection in the laminectomy defect
most indicative of a seroma, and mild enhancement of the disc and endplates of the
intervertebral body graft placement due to either the claimant's recent surgery or
early inflammatory changes. Exhibit 3F.
On June 15, 2009, the claimant met with pain management provider Jeffrey
Hazlewood, M.D., on referral from Dr. Mackey. She endorsed a "pressure, soreness
type pain" in her lower back that radiated to her right lower extremity and caused
numbness and tingling in her right toes. However, she endorsed no more than mild
to moderate pain with medication with a pain rating of four to five on a ten-point
scale with ten being the worst. In addition to the claimant's symptoms, Dr.
Hazlewood also noted that she had a history of left thumb surgery in 2002-2003 and
two right wrist surgeries in 2003-2004. Exhibit 2F.
On examination, Dr. Hazlewood observed that the claimant had pain getting on the
examination table. She had spasms throughout her lumbar spine, diminished lumbar
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range of motion, decreased pinprick sensation in the right posterior calf, and slightly
diminished motor strength in the right hip flexor and right anterior tibialis with give
away. Otherwise, she had good range of motion throughout all extremities, negative
straight leg raises, normal motor strength in the upper and lower extremities, normal
reflexes, and normal sensation in the right medial foot and bilateral upper and left
lower extremities. Based on his overall examination, Dr. Hazlewood diagnosed the
claimant with chronic low back pain with a combination of mechanical and
neuropathic pain, lumbar spasms, and sacroiliac joint pain "probably referred from
the lumbar spine." She was continued on Lyrica, Celebrex, and Lortab and
additionally prescribed Lidoderm patches. She was also advised to continue using
a TENS unit and scheduled for sacroiliac joint injections. Exhibit 2F.
The next day, June 16, 2009, the claimant met with Dr. Mackey, who noted that she
was doing well neurologically and had good motor function. However, she had
increased pain with bilateral FABER test, and it was decided that she would proceed
with the sacroiliac joint injections, which was performed by Dr. Hazlewood on July
7, 2009. Exhibits 2F and 3F.
At a follow-up visit to Dr. Mackey on July 28, 2009, it was noted that the claimant
had tried to return to work but had been unable to do so. Nevertheless, it was
determined that she was twenty-five percent better. A couple of months later, Dr.
Mackey noted that the claimant had not been doing as well as he would have liked
and that that he could not medically clear her to return to her past work. He instead
decided to send her for a functional capacity evaluation. Exhibit 3F.
The actual findings of that functional capacity evaluation were not found in the
provided records. However, based on the results of the evaluation, Dr. Mackey
assessed permanent restrictions on October 21, 2009, of no lifting over five pounds
frequently, thirty pounds maximum, ten pounds from floor to waist, ten pounds from
waist to chest, and ten pounds overhead. He further opined that she needed to
alternate between sitting and standing, sitting for forty-five minutes per hour and
standing for fifteen minutes per hour. Such restrictions were not inconsistent with
a physical examination conducted by Dr. Hazlewood just a few days prior on
October 6, 2009, with findings of diminished lumbar range of motion but only mild
spasms, non-antalgic gait, and good range of motion throughout the lower
extremities. Exhibits 2F and 3F.
The following month on November 9, 2009, Dr. Mackey determined that the
claimant had an overall impairment rating of twenty-two percent based on her
persistent back symptoms. Exhibit 3F.
On follow-up visits to Dr. Hazlewood, the claimant endorsed having no more than
moderate pain with medication, and she stated that medication allowed her to
function and have a better quality of life. Examinations continued to demonstrate
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decreased lumbar range of motion, spasms, and tenderness. However, they also
showed negative straight leg raises, non-antalgic gait, and good range of motion
throughout the lower extremities. Exhibit 16F.
Despite her ongoing symptoms, the claimant reported on April 21, 2010, that she had
been looking for work while applying for disability, and on May 13, 2010, she
mentioned that she had been walking thirty minutes one to two times a day for
exercise. In July 2010, she experienced a significant flare-up in her low back pain,
but on August 5, 2010, she reported having "dramatic improvement" after being
prescribed Cymbalta. Exhibit 16F.
Several months later on October 21, 2010, Dr. Mackey noted that the claimant was
doing well symptomatically and continuing with her exercise program. Exhibit 3F.
The claimant continued to endorse having moderate pain with medication, but on
April 8, 2011, and May 5, 2011, she reported having a higher pain rating of six and
seven, respectively. However, her physical examinations remained the same with
findings of non-antalgic gait, negative straight leg raises, and good range of motion
throughout the lower extremities. Exhibit 16F.
On May 31, 2011, the claimant underwent a medical consultative examination
conducted by Deborah Morton, M.D. On examination, she had decreased lumbar,
hip, left thumb, and knee range of motion; mildly positive straight leg raises
bilaterally; diminished deep tendon reflexes in the lower extremities; diminished
strength in the upper extremities; and absent Babinski reflexes. However, she had
normal deep tendon reflexes in the upper extremities; normal gait, station, and gait
maneuvers; normal strength in the lower extremities; normal sensation; and normal
range of motion in her shoulders, elbows, wrists, and ankles. The claimant
complained of fibromyalgia but had no pain on palpation of any trigger points.
Exhibit 5F.
Based on her overall examination, Dr. Morton diagnosed the claimant with lumbar
spine fusion status post injury, fibromyalgia, and left thumb decreased range of
motion and opined sedentary work limitations. Exhibit 5F.
Following the consultative examination, the claimant met with an orthopedist on
June 22, 2011, for evaluation of left sternoclavicular joint pain. On examination, she
had a large prominence over her right sternoclavicular joint but full range of motion
with good muscle strength and tone, negative drop arm, no crepitus, and no signs of
instability. Nevertheless, she was diagnosed with right sternoclavicular joint
prominence "most likely due to arthritis." The evaluating orthopedist determined
that it was nothing more serious than that and recommended "just watching" the area.
Exhibit 7F.

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Remaining medical records from Dr. Hazlewood dated June 24, 2011, to February
l5 , 2013, reflect that the claimant endorsed increasing pain even with medication but
that her physical examinations remained rather unremarkable and virtually
unchanged from those conducted by Dr. Hazlewood prior to the medical consultative
examination. Specifically, Dr. Hazlewood's examinations consistently noted
decreased lumbar range of motion but normal motor strength in the bilateral lower
extremities, negative straight leg raises, non-antalgic gait, and good range of motion
throughout the lower extremities. Additionally, on December 20, 2012, it was noted
that the claimant had been "staying active." Exhibit 16F.
No additional medical records were provided.
Turning to the hearing testimony, the claimant testified that her pain never goes
away. She stated that her pain level is a five to six on average days, a three to four
on good days, and a nine on bad days. She testified that she has about fifteen to
twenty bad days a month and more bad days in the winter. She testified that in 2008
and 2009 she had sharp pain that radiated down her leg but that she now has
numbness in her leg with stabbing pain on bad days. She stated that she lies down
during the day to get comfortable but does not take naps during the day.
When asked about her physical abilities, the claimant testified that she can stand ten
to fifteen minutes at a time and sit ten minutes at a time. She stated that she used to
walk six miles a day but cannot do that any longer. She testified that she lives alone
and can do household chores but that her daughter and sister help with deep cleaning
and a yardman does her yard work. She stated that she attends school functions for
her ten-year-old grandson when she feels okay.
The claimant did not appear to be in significant pain while sitting and standing
during the hearing. Additionally, she was observed moving [her] arms and hands
while speaking.
In addition to her testimony, the claimant completed a pain questionnaire and
function reports. In her pain questionnaire, she reported having lower back pain three
times a week brought on by grocery shopping and walking. She claimed that her pain
lasted anywhere from two hours to all day but added that medication helped to
minimally relieve her pain for about tlu·ee to four hours. Exhibit 4E.
In her function reports, the claimant stated that she could perform self-care tasks,
drive, shop, do light housecleaning, wash laundry and dishes, prepare meals, sew,
play video games, and occasionally go out to restaurants. Exhibits 6E and 9E.
(AR pp. 13-17).
IV. DISCUSSION AND CONCLUSIONS OF LAW
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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
(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

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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
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

9

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.
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

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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
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 Assertions of Error
Plaintiff argues that (1) the ALJ did not give appropriate weight to the opinion of Dr. Edward
Mackey, Plaintiff’s treating physician; (2) the ALJ failed to give proper weight to the opinion of

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consultative examiner, Dr. Deborah Morton, who limited Plaintiff to sedentary work; (3) the ALJ
erred by giving great weight to the State agency medical consultants; (4) the ALJ failed to note Dr.
Jeffrey Hazlewood’s objective findings; (5) Plaintiff’s residual functional capacity was inaccurate;
(6) the ALJ erred in finding that Plaintiff’s testimony was not fully credible; (7) the ALJ erred in
using a “sit and squirm” test; (8) the ALJ erred in using intermittent daily activities to support the
finding that Plaintiff was not disabled; (9) the ALJ erred in finding that Plaintiff’s efforts to work
or find work indicated that she was not disabled; and (10) the ALJ’s decision is not supported by
substantial evidence. (Docket Entry No. 13, at 15-23). Plaintiff contends that the Commissioner’s
decision should be reversed under the fourth sentence of 42 U.S.C. § 405 (g). Id. at 24.
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
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 did not give appropriate weight to the opinion of Dr. Edward Mackey, Plaintiff's
treating physician.

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Plaintiff argues that the ALJ did not give appropriate weight to the opinion of Dr. Edward
Mackey, Plaintiff's treating physician. Plaintiff asserts that on October 7, 2009, Dr. Mackey
permanently restricted Plaintiff to: no lifting over 5 pounds frequently and 30 pounds maximum; 10
pounds floor-to-waist, 10 pounds waist-to-chest and 10 pounds overhead; and alternating sitting and
standing, 45 minutes sitting per hour, 15 minutes standing per hour. (Docket Entry No. 13, at 15;
Docket Entry No. 10, at 218). Plaintiff argues that, although the ALJ stated that he gave
“significant” weight to Dr. Mackey’s October 2009 opinion, the ALJ did not include any of Dr.
Mackey’s restrictions in his hypothetical question to the vocational expert. (Docket Entry No. 13,
at 16-17; Docket Entry No. 10, at 53-58). In response, Defendant contends that the ALJ properly
considered Dr. Mackey’s opinion and gave it “significant” weight. (Docket Entry No. 18, at 4).
Social Security regulations address three classifications of medical sources: treating sources;
examining but non-treating sources; and non-examining sources. 20 C.F.R. §§ 404.1527, 416.927;
20 C.F.R. §§ 404.1502, 416.902. A treating source has a history of medical treatment and an
ongoing treatment relationship with the plaintiff consistent with accepted medical practice. 20
C.F.R. §§ 404.1502, 416.902. An examining non-treating source has examined the plaintiff, but
does not have an ongoing treatment relationship. Id. A non-examining source is a physician,
psychologist, or other acceptable medical source who has not examined the plaintiff, but provides
a medical or other opinion based upon medical and treatment records. Id.
The opinion of an examining non-treating source is given greater weight than that from a
non-examining source and an opinion from a treating source is afforded greater weight than an
examining non-treating source. Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 375 (6th Cir. 2013)
(citing 20 C.F.R. §§ 404.1502, 404.1527(c)(1), (2)). “A treating physician’s opinion is normally

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entitled to substantial deference, but the ALJ is not bound by that opinion. The treating physician’s
opinion must be supported by sufficient medical data. Jones, 336 F.3d at 477 (citation omitted).
Thus, “[t]reating-source opinions must be given ‘controlling weight’ if two conditions are met: (1)
the opinion ‘is well-supported by medically acceptable clinical and laboratory diagnostic
techniques’; and (2) the opinion ‘is not inconsistent with the other substantial evidence in [the] case
record.’” Gayheart, 710 F.3d at 376 (quoting 20 C.F.R. § 404.1527(c)(2)). “Moreover, when the
physician is a specialist with respect to the medical condition at issue,” the specialist’s “opinion is
given more weight than that of a non-specialist.” Johnson v. Comm'r of Soc. Sec., 652 F.3d 646, 651
(6th Cir. 2011) (citing 20 C.F.R. § 404.1527([c])(5)).
“If the treating physician’s opinion is not supported by objective medical evidence, the ALJ
is entitled to discredit the opinion as long as he sets forth a reasoned basis for her rejection.” Jones,
336 F.3d at 477. The regulations provide that an ALJ must provide “good reasons” for discounting
the weight of a treating source opinion. Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir.
2004). “Those good reasons must be ‘supported by the evidence in the case record, and must be
sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to
the treating source's medical opinion and the reasons for that weight.’” Blakley, 581 F.3d at 406-07
(6th Cir. 2009) (quoting SSR 96–2p, 1996 WL 374188, at *5).
The ALJ’s conclusion regarding Plaintiff’s RFC was based upon the following:
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 entirely credible for the
reasons explained in this decision.
Overall, the evidence of record does not support a finding of disability. The only
significant objective findings were made by Dr. Morton, the medical consultative
14

examiner. However, Dr. Morton's one-time evaluation does not outweigh treatment
records from Drs. Mackey and Hazlewood.
Following her surgery, the claimant was consistently given light duty restrictions by
Dr. Mackey, her orthopedic surgeon, with permanent light duty restrictions assessed
in October 2009, and she reported having no more than moderate pain with
medication. An examination conducted the same month by Dr. Hazlewood, the
claimant's pain management provider, supported the light duty restrictions as they
demonstrated decreased lumbar range of motion, spasms, and decreased pinprick
sensation in right lower extremity but otherwise good range of motion throughout all
extremities, negative straight leg raises, normal motor strength in the upper and
lower extremities, normal reflexes, and normal sensation in the right foot and
bilateral upper and left lower extremities. Additionally, it was consistently noted that
medications allowed the claimant to function and have a better quality of life.
Remaining treatment records from Dr. Hazlewood from 2010 to 2013 continued to
be unremarkable concerning objective medical findings. Examinations consistently
showed negative straight leg raises, non-antalgic gait, and normal motor strength and
good range of motion in the lower extremities. Moreover, in April 2010, the
claimant reported that she was looking for work while applying for disability, and
in October 2010 it was noted that she was doing well symptomatically. The claimant
subsequently endorsed having increased pain, but her physical examinations
remained virtually unchanged. It was regularly noted that her medications allowed
her to function and have a better life without any adverse side effects, and it was also
noted that she stayed as active as she could.
The claimant did not require treatment for any residuals of her left thumb and right
wrist surgeries. However, those impairments were taken into consideration when
determining the claimant's residual functional capacity.
The claimant's reported activities per her function reports and testimony further
support a finding of non-disability.
Lastly, the claimant testified that her medications cause sleepiness and weight gain.
However, records show that the claimant denied having any adverse medication side
effects. Exhibits 4E and 16F. Additionally, the claimant's weight was discussed
above and found to be no more than mild in severity.
As for the opinion evidence, great weight is given to the State agency medical
consultants light work assessments at Exhibits l0 F and 13F as they are supported by
Dr. Mackey's permanent light duty restrictions; Dr. Hazlewood's consistent findings
of negative straight leg raises, non- antalgic gait, and normal motor strength and
good range of motion in the lower extremities; and the claimant's reported daily
living activities. For the same reasons, significant weight is also given to Dr.
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Mackey's permanent light restrictions in Exhibit 3F. However, Dr. Mackey's
assessment is given less weight as it is unclear on what his restrictions were actually
based. Nevertheless, a sit/stand option is incorporated into the claimant's residual
functional capacity in consideration of Dr. Mackey's assessed restrictions and the
claimant's testimony.
Additionally, crediting the claimant's history of left thumb and right wrist surgeries,
the undersigned further limits the claimant to no more than occasional handling with
the right hand and occasional thumb-gripping with the left hand.
Little weight is given to Dr. Morton's consultative examination assessment at Exhibit
5F as her sedentary limitations are overly restrictive given Dr. Mackey’s permanent
restrictions and Dr. Hazlewood’s physical examinations.
(Tr. 17-18).
“The Social Security Act instructs that the ALJ--not a physician--ultimately determines a
claimant's RFC.” Coldiron v. Comm'r of Soc. Sec., 391 F. App'x 435, 439 (6th Cir. 2010); see also
Nejat v. Comm'r of Soc. Sec., 359 F. App’x 574, 578 (6th Cir. 2009) (“Although physicians opine
on a claimant's residual functional capacity to work, ultimate responsibility for capacity-to-work
determinations belongs to the Commissioner.”). “[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 719, 728 (6th Cir. 2013). Therefore, “[a]n ALJ does not
improperly assume the role of a medical expert by weighing the medical and non-medical evidence
before rendering an RFC finding.” Coldiron, 391 F. App’x at 439. 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.

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Here, the ALJ recited Plaintiff’s restrictions that Dr. Mackey ordered in October 2009. (Tr.
15). The ALJ noted that the actual findings of the functional capacity evaluation in which Dr.
Mackey’s assessment was based were not provided in the medical records. Id. The ALJ noted that
Dr. Hazlewood on October 6, 2009, reported that Plaintiff had diminished lumbar range of motion
but only mild spasms, non-antalgic gait, and good range of motion throughout the lower extremities.
(Tr. 15, 17, 203). The ALJ also noted that Dr. Hazlewood consistently noted that medications
allowed Plaintiff to function and have a better quality of life without adverse side effects and that
treatment records from Dr. Hazlewood from 2010 to 2013 continued to be unremarkable, with
examinations consistently showing negative straight leg raises, non-antalgic gait, and normal motor
strength and good range of motion in the lower extremities. (Tr. 15-18, 190-99, 201). Dr.
Hazlewood noted in December 2012 that Plaintiff was “staying active.” (Tr. 16, 430). In May 2010,
Dr. Hazlewood remarked that Plaintiff was walking thirty minutes one to two times a day for
exercise, and on October 21, 2010, Dr. Mackey noted that Plaintiff was doing well symptomatically
and was continuing with her exercise program. (Tr. 234, 384). The ALJ further noted that the
medical record reflected that Plaintiff did not require treatment for any residuals of her left thumb
and right wrist surgeries, but that those impairments were taken into consideration when determining
Plaintiff’s RFC. (Tr. 18).
As to the opinion evidence, although significant weight was given to Dr. Mackey’s
permanent light restrictions, the ALJ explained that Dr. Mackey’s assessment was given less weight
as it was unclear on what the restrictions were actually based. (Tr. 18). However, the ALJ included
a sit/stand option into Plaintiff’s RFC in consideration of Dr. Mackey’s assessed restrictions and

17

Plaintiff’s testimony. (Tr. 18). The Court notes that Dr. Mackey’s assessment allows for lifting up
to 30 pounds, whereas the ALJ’s RFC limits lifting to 20 pounds. (Tr. 12, 218).
The record reflects that the ALJ gave significant weight to Dr. Mackey’s opinion and that
he provided good reasons for giving Dr. Mackey’s assessment less weight. The Court finds that the
ALJ demonstrated proper consideration of Dr. Mackey’s opinion.
2. The ALJ failed to give proper weight to the opinion of consultative examiner, Dr. Deborah
Morton, who limited Plaintiff to sedentary work.
Plaintiff contends that the ALJ erred in evaluating the opinion of Dr. Deborah Morton, the
consultative physician, who limited Plaintiff to sedentary work. (Docket Entry No. 13, at 17).
Plaintiff asserts that she “is not arguing that Dr. Morton’s opinion should outweigh Dr. Mackey’s
opinion,” but that “when Dr. Morton’s complete opinion is combined with Dr. Mackey’s opinion
and Dr. Hazelwood’s objective findings, it is obvious she cannot perform all the activities required
for light work.” (Docket Entry No. 19, at 3). Defendant contends that the ALJ properly explained
that little weight was given to Dr. Morton’s report because it was overly restrictive. (Docket Entry
No. 18, at 7).
It is the function of the ALJ to resolve the conflicts between the medical opinions. Justice
v. Comm’r of Soc. Sec., 515 F. App’x 583, 588 (6th Cir. 2013) (“In a battle of the experts, the
agency decides who wins. The fact that Justice now disagrees with the ALJ’s decision does not mean
that the decision is unsupported by substantial evidence.”). Under SSR 96-7p, the ALJ is permitted
to “consider his or her own recorded observations of the individual as part of the overall evaluation
of the credibility of the individual’s statements.” See SSR 96-7p; Blankenship v. Comm’r of Soc.
Sec., No. 14-2464, 2015 WL 5040223, at *10 (6th Cir. Aug. 26, 2015) (treating doctor’s assertion
that claimant was unable to walk from the parking lot to work was “seemingly contradicted by the
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fact that Blankenship was able to walk unassisted from her car to the room where the hearing was
being held.”). The ALJ may rely on opinions from consulting doctors. See Brown v. Comm'r of Soc.
Sec., No. 14-1626, 2015 WL 163059, at *1 (6th Cir. Jan. 13, 2015) (“The ALJ gave ‘some weight’
to the opinions of three consulting physicians…”). While all medical opinions are evaluated as
discussed in 20 C.F.R. § 404.1527, opinions by consulting or non-treating doctors need not be
evaluated in accordance with the treating physician rules outlined by the Sixth Circuit. See Rudd
v. Comm’r of Soc. Sec., 531 F. App’x at 730 (citing 20 C.F.R. § 404.1527 and Barker v. Shalala, 40
F.3d 789, 794 (6th Cir. 1994)); Smith v. Comm'r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007)
(“[T]he SSA requires ALJs to give reasons for only treating sources.”) (emphasis in original).
At Defendant’s request, Plaintiff was examined on May 31, 2011, by Dr. Deborah Morton,
who opined that Plaintiff was limited to work in the sedentary category. (Tr. 15, 267). The ALJ
noted that Plaintiff had some decreased range of motion and diminished strength and reflexes, but
other reflexes were normal, and Plaintiff had a normal gait, normal strength in the lower extremities,
normal sensation, and normal range of motion in her shoulders, elbows, wrists, and ankles. (Tr. 1516, 264-66). Although Plaintiff complained of fibromyalgia, she did not have any pain on any
trigger points. (Tr. 16, 264-66). The ALJ gave little weight to Dr. Morton’s one time examination
and assessment, finding the sedentary limitations were overly restrictive given Dr. Mackey’s
permanent restrictions and Dr. Hazlewood's physical examinations. (Tr. 18).
The Court finds that the ALJ properly considered and analyzed Dr. Morton’s opinion in
conjunction with the other medical evidence and that the ALJ did not err in assessing Dr. Morton’s
opinion.
3. The ALJ erred by giving great weight to the State agency medical consultants.

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Plaintiff argues that “[i]t was error for the ALJ to rely upon opinions of non-examining
doctors who did not see the complete file and whose opinions are not, in fact, supported by Dr.
Mackey.” (Docket Entry No. 13, at 19). Plaintiff asserts that one consultant did not see any records
after July 12, 2011 (Tr. 291-298) and another consultant did not see any records after October 24,
2011 (Tr. 325-328). Id. at 18-19. Defendant argues that the ALJ did not err in considering the
reports of the State agency medical consultants, particularly given Dr. Mackey’s opinion that
Plaintiff could work within the “light” exertional category. (Docket Entry No. 18, at 8-9).
“‘State agency medical and psychological consultants . . . are highly qualified physicians
[and] psychologists . . . who are also experts in Social Security disability evaluation,’ and whose
findings and opinions the ALJ ‘must consider . . . as opinion evidence.’” Lee v. Comm'r of Soc. Sec.,
529 F. App'x 706, 712 (6th Cir. 2013) (quoting 20 C.F.R. § 404.1527(e)(2)(i)). As stated supra,
while all medical opinions are evaluated as discussed in 20 C.F.R. § 404.1527, opinions by
consulting or non-treating doctors need not be evaluated in accordance with the treating physician
rules outlined by the Sixth Circuit. See Rudd, 531 F. App’x at 730.
The ALJ stated that he gave great weight to the State agency medical consultants’ light work
assessments as they were “supported by Dr. Mackey’s permanent light duty restrictions; Dr.
Hazlewood’s consistent findings of negative straight leg raises, non- antalgic gait, and normal motor
strength and good range of motion in the lower extremities; and the claimant’s reported daily living
activities.” (Tr. 18). Although the two medical consultants’ opinions were respectively issued on
July 12, 2011 and October 24, 2011, the record reflects that the ALJ made an independent
determination based on all the evidence and that the ALJ’s analysis clearly spanned the entire
record. See Gibbens v. Comm'r of Soc. Sec., 659 F. App'x 238, 248 (6th Cir. 2016) (“Where a

20

non-examining source ‘did not review a complete case record, we require some indication that the
ALJ at least considered these facts before giving greater weight’ to that opinion.”) (citation and
internal quotation marks omitted); accord Quinlavin v. Comm'r of Soc. Sec., No. 15-CV-731, 2017
WL 583722, at *4 (N.D. Ohio Feb. 14, 2017); Jacks v. Comm'r of Soc. Sec., No. 3:15-CV-309, 2017
WL 540922, at *5 (S.D. Ohio Feb. 10, 2017), report and recommendation adopted sub nom. Jacks
v. Berryhill, No. 3:15-CV-309, 2017 WL 1134506 (S.D. Ohio Mar. 27, 2017). The ALJ noted Dr.
Hazlewood’s consistent findings and that Plaintiff’s treatment records “continued to be
unremarkable concerning objective medical findings.” (Tr. 17). Further, Dr. Mackey’s assessment
regarding Plaintiff’s permanent restrictions did not change after October 21, 2009.
Plaintiff further argues that Dr. Mackey’s reference to “light duty” is different from the
Agency’s definition of “light work,” implying that the ALJ erroneously believed that Dr. Mackey
essentially restricted Plaintiff to “light work.” Plaintiff states:
Dr. Mackey did use the term “light duty” on April 23, 2009, but he defined it as, “No
lifting over 5 pounds frequently, 15 lbs. maximum, sit and stand ad lib” (Tr. 237).
Dr. Mackey’s definition of “light duty” does not match SSA’s definition of “light
work.” In any event, he changed those restrictions on October 7, 2009 and did not
use the term “light duty” again (Tr. 219).
(Docket Entry No. 19, at 4). However, the ALJ correctly cited the restrictions in Dr. Mackey’s
October 2009 report (Tr. 15) and relied upon these restrictions along with other evidence in the
administrative record in determining that Plaintiff could perform light work with limitations.
After a thorough review of the record, the Court finds no error in the ALJ’s evaluation of the
State agency medical consultants’ opinions.
4. The ALJ failed to note Dr. Jeffrey Hazlewood’s objective findings.

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Plaintiff argues that, although the ALJ stated that the only significant objective findings were
made by Dr. Morton, the ALJ ignored the objective findings of Dr. Jeffrey Hazlewood, which
included, among other findings, muscle spasms from June 2009 to October 2012. (Docket Entry No.
13, at 19). The ALJ noted that Dr. Hazlewood’s examinations continued to show spasms, but that
the examinations also showed negative straight leg raises, non-antalgic gait and good range of
motion throughout the lower extremities. (Tr. 15). The ALJ further noted that the remaining
medical records from Dr. Hazlewood were unremarkable. (Tr. 16). The Court concludes that the
ALJ properly considered the evidence from Dr. Hazlewood.
5. Plaintiff's residual functional capacity was inaccurate.
Plaintiff argues that “[w]hen Dr. Mackey’s exact restrictions are combined with Dr. Morton’s
restriction to sedentary work, it is clear that the residual functional capacity (which said that Ms.
McWhorter could perform light work, and could sit, stand, walk for six hours each in a workday)
is inaccurate.” (Docket Entry No. 13, at 20).
As discussed supra, the ALJ ultimately determines a plaintiff’s RFC. Coldiron, 391 F. App'x
at 439. The RFC does not need to be based on a particular medical opinion. Brown, 602 F. App’x
at 331. 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.
“[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.” Id. at 728.
The Court concludes that the ALJ properly considered the entire medical record in
determining Plaintiff’s RFC and finds no error in the ALJ’s evaluation of opinions that related to
Plaintiff’s limitations on her RFC.

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6. The ALJ erred in finding that Plaintiff's testimony was not fully credible.
Plaintiff argues that the ALJ erred in finding that Plaintiff's testimony was not fully credible.
Plaintiff asserts that if Plaintiff were fully credible then her testimony that she had to lie down during
the day would mean there are no jobs that she can perform. Plaintiff further asserts that efforts to
obtain relief for her pain and other impairments support her credibility, citing her back surgery,
seeking treatment from orthopedic and pain specialists, trying physical therapy, and taking pain
medication.
“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) (citing SSR 967p, 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, 486 F.3d at 248. “‘[A]n ALJ’s
findings based on the credibility of the applicant are to be accorded great weight and deference,
particularly since an ALJ is charged with the duty of observing a witness’s demeanor and
credibility.’” Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 652 (6th Cir.2009) (quoting Walters v.
Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir.1997)). An ALJ’s “credibility findings are virtually
‘unchallengeable.’” Ritchie v. Comm’r of Soc. Sec., 540 F. App’x 508, 511 (6th Cir. 2013) (citing
Payne v. Comm’r of Soc. Sec., 402 F. App’x 109, 112–13 (6th Cir. 2010)). “[H]armless error

23

analysis applies to credibility determinations in the social security disability context.” Ulman v.
Comm’r of Soc. Sec., 693 F.3d 709, 714 (6th Cir. 2012).
A review of the ALJ’s decision reflects that in determining Plaintiff’s credibility the ALJ
considered the objective evidence; treatment records; medications; that Plaintiff testified that her
medications caused sleepiness and weight gain but that her medical records showed that she denied
having any adverse side effects; her improvement with treatment; the ALJ’s observation that
Plaintiff did not appear to be in significant pain while sitting and standing during the hearing; her
daily activities; and that she searched for work while alleging disability. (Tr. 15-18).
Accordingly, based upon the record, the Court concludes that the ALJ’s findings were
supported by substantial evidence. See 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).
7. The ALJ erred in using a “sit and squirm” test.
Plaintiff argues that the ALJ impermissibly used a “sit and squirm” test by noting at the
hearing that Plaintiff did not appear to be in significant pain while sitting and standing and that she
moved her arms and hands while speaking. (Docket Entry No. 13, at 22; Docket Entry No. 10, at
17).
Under SSR 96-7p, the ALJ is permitted to “consider his or her own recorded observations
of the individual as part of the overall evaluation of the credibility of the individual’s statements.”
See SSR 96-7p; Blankenship, 2015 WL 5040223, at *10 (treating doctor’s assertion that claimant
was unable to walk from the parking lot to work was “seemingly contradicted by the fact that

24

Blankenship was able to walk unassisted from her car to the room where the hearing was being
held.”); Wiggins v. Comm'r of Soc. Sec., No. 14-CV-10452, 2014 WL 5782770, at *14 (E.D. Mich.
Nov. 6, 2014) (“[A]n ALJ is expressly permitted to take into account his own observations at an
in-person hearing as part of his evaluation of a claimant's credibility.”).
Here, the ALJ’s observation was one of several factors in determining Plaintiff’s credibility.
Accordingly, the ALJ’s consideration of this factor was not improper.
8. The ALJ erred in using intermittent daily activities to support the finding that Plaintiff was not
disabled.
Plaintiff argues that the “ALJ’s recitation of activities intermittently performed do not
support his finding that the claimant is not disabled.” (Docket Entry No. 13, at 23). However, an
ALJ may consider daily activities as one factor in the evaluation of subjective complaints. Temples
v. Comm'r of Soc. Sec., 515 F. App'x 460, 462 (6th Cir. 2013) (“[T]he ALJ did not give undue
consideration to Temples’ ability to perform day-to-day activities. Rather, the ALJ properly
considered this ability as one factor in determining whether Temples’ testimony was credible.”); 20
C.F.R. §§ 404.1529, 416.929.
The ALJ referred to function reports completed by Plaintiff in which she had fairly normal
functioning. (Tr. 17, 150-57, 167-74). The ALJ’s consideration of Plaintiff’s functioning was just
one factor in determining Plaintiff’s credibility. Accordingly, the ALJ properly considered
Plaintiff’s functioning as one factor in determining Plaintiff’s credibility.
9. The ALJ erred in finding that Plaintiff's efforts to work or find work indicated that she was not
disabled.
Plaintiff argues that the ALJ erred in finding that Plaintiff’s efforts to work or find work
indicated that she was not disabled. (Docket Entry No. 13, at 23). Defendant asserts that

25

considering Plaintiff’s efforts to find work is a logical consideration and that the ALJ did not err in
considering this as another factor in determining disability. (Docket Entry No. 18, at 12).
Plaintiff cites Walston v. Gardner, 381 F.2d 580 (6th Cir.1967). In Walston, the Sixth
Circuit held that “[w]here an applicant has unsuccessfully attempted to secure employment, less
evidence is needed to support a finding of disability than where the applicant has failed to make such
an effort.” 381 F.2d at 586-87. However, in Pasco v. Comm'r of Soc. Sec., 137 F. App'x 828, 843
(6th Cir. 2005), the Sixth Circuit distinguished Walston, explaining:
In Walston, the court reversed a determination that a claimant was not disabled by
noting that claimant's efforts to find employment were hindered by constant back
pain following an accident years before. The court in Walston thus made this
statement as further proof that the claimant really did suffer from a disability, not as
a general evidentiary standard.
Pasco v. Comm'r of Soc. Sec., 137 F. App'x 828, 843 (6th Cir. 2005). The Court rejected the
plaintiff’s argument that Walston required “the ALJ to infer that she is truly disabled from her
attempts to work.” Id.
The ALJ noted that in April 2010 Plaintiff was looking for work while applying for
disability, but also noted that October 2010 treatment notes reflected that Plaintiff was doing well
symptomatically. (Tr. 17, 238). This factor was just one of several factors that the ALJ considered
in determining if Plaintiff were disabled. See Bentley v. Shalala, 52 F.3d 784, 786 (8th Cir. 1995)
(“Bentley’s case must of course be distinguished from situations where the medical evidence
uniformly supports a finding of disability; in such cases an unsuccessful work search may even
reinforce a disability claim.”) (citing Walston, 381 F.2d at 586-87). Moreover, Dr. Mackey reported
that on November 9, 2009, Plaintiff was given an overall impairment of 22% and that she was
looking for work that did not require any physical labor. (Tr. 238). Further, the vocational expert

26

testified that there were jobs that such an individual could perform, including work as an office
clerk, ticket clerk, and information clerk. (Tr. 20, 56-57).
Accordingly, the Court concludes that the ALJ properly considered Plaintiff looking for work
while applying for disability as a factor in making his disability determination.
10. The ALJ's decision is not supported by substantial evidence.
Lastly, Plaintiff argues that the combined opinions of Dr. Morton and Dr. Mackey “show that
the ALJ is in error in finding that Ms. McWhorter can perform light work and that she can stand and
walk six hours a day.” (Docket Entry No. 13, at 23-24).
As previously discussed, the RFC does not need to be based on a particular medical opinion.
Brown, 602 F. App’x at 331. 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.
After a thorough review of the entire record, the Court concludes that the ALJ’s findings are
supported by substantial evidence.
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).
For all of the reasons stated, the Court will deny Plaintiff’s Motion for Judgment on the
Administrative Record. (Docket Entry No. 12).

27

An appropriate Order shall be entered.

__________________________________________
KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE

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