Davis v. Social Security Administration
MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Waverly D. Crenshaw, Jr on 8/23/17. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
CHERYL LYNN DAVIS,
Acting Commissioner of
CHIEF JUDGE CRENSHAW
Pending before the Court is Cheryl Lynn Davis’s Motion for Judgment on the Administrative
Record (Doc. No. 12), to which the Commissioner of Social Security (“Commissioner”) has
responded (Doc. No. 15). Plaintiff filed a reply to Defendant’s response. (Doc. No. 16.) Upon
consideration of the parties’ briefs and the transcript of the administrative record (Doc. No. 11),2 and
for the reasons set forth below, Plaintiff’s Motion for Judgment will be DENIED and the decision
of the Commissioner will be AFFIRMED.
I. Magistrate Judge Referral
In order to ensure the prompt resolution of this matter, the Court will VACATE the referral
to the Magistrate Judge.
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).
Referenced hereinafter by “Tr.” followed by the page number found in bolded typeface at
the bottom right corner of the page.
Plaintiff filed an application for supplemental security income (“SSI”) under Title XVI of the
Social Security Act on December 7, 2011, alleging disability onset as of September 10, 2009, which
was amended to August 4, 2011, due to back pain, osteoporosis and diverticulitis, depression,
fibromyalgia, and arthritis. (Tr. 11, 48, 76, 132, 203.) Plaintiff’s claims were denied at the initial
level on April 24, 2012, and on reconsideration on July 6, 2012. (Tr. 77, 83.) Plaintiff subsequently
requested de novo review of her case by an administrative law judge (“ALJ”). (Tr. 86, 94.) The ALJ
heard the case on November 14, 2013, when Plaintiff appeared with counsel and gave testimony. (Tr.
12, 26-47.) Testimony was also received by a vocational expert. (Tr. 39-45.) At the conclusion of
the hearing, the matter was taken under advisement until February 14, 2014, when the ALJ issued
a written decision finding Plaintiff not disabled. (Tr. 8-18.) That decision contains the following
The claimant has not engaged in substantial gainful activity since 2009 (20
CFR 416.971 et seq.).
The claimant has the following severe impairments: degenerative disk disease,
obesity, and carpal tunnel syndrome (20 CFR 416.920©).
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 416.920(d), 416.925 and
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 416.967(b) with occasional balancing, stooping, kneeling,
crouching and crawling and occasionally climbing ramps and stairs. No
climbing ladders, ropes, and scaffolds. She could handle and finger frequently
bilaterally, but could not work around unguarded moving machinery and
The claimant is capable of performing past relevant work as a cashier. This
work does not require the performance of work-related activities precluded by
the claimant’s residual functional capacity (20 CFR 416.965).
The claimant has not been under a disability, as defined in the Social Security
Act, since December 7, 2011, the date the application was filed (20 CFR
The claimant’s subjective complaints, including pain, have been evaluated as
required by the applicable regulations and rulings.
(Tr. 13, 14, 17.)
On September 17, 2014, the Appeals Council denied Plaintiff’s request for review of the
ALJ’s decision (Tr. 1-3), thereby rendering that decision the final decision of the Commissioner.
This civil action was thereafter timely filed, and the court has jurisdiction. 42 U.S.C. § 405(g). If
the ALJ’s findings are supported by substantial evidence based on the record as a whole, then those
findings are conclusive. Id.
III. REVIEW OF THE RECORD
The following summary of the medical record is taken from the ALJ’s decision:
The claimant’s primary complaints revolve around back pain, but she has had
remarkably little treatment for such complaints. She has not sought any treatment
from her neurologist since August 2011, when she last saw Physician Assistant
Casamo, complaining of increased back pain radiating to the left leg. Examination
was stable. She was advised to obtain a second opinion regarding recommended back
surgery, which she did not want to undergo. She weighed 226 pounds. She had a
slight 4/5 weakness in the left lower extremity due to pain. Gait was guarded. She
had slightly decreased sensation to light touch on the lateral left foot. Exhibit 3F.
Decompressive laminectomy3 had been recommended by Dr. McNamera in January
2010 for radiculopathy,4 but she did not elect to have that surgery, and did not return
Laminectomy is the excision of the posterior arch of a vertebra. Dorland’s Illustrated
Medical Dictionary 1003 (32nd ed. 2012).
Radiculopathy is the “disease of the nerve roots, such as from inflamation or impingement
by a tumor or a bony spur.” Dorland’s at 1571.
to see Dr. McNamera thereafter. Exhibit 2F. She occasionally saw primary care
providers for back or leg pain. An August 2011 visit to Dr. Hays for a three month
check-up reported that she was overall doing very well. She reported occasional
polyarthralgias,5 which had improved, and low back pain. She was obese and slightly
tender over the low back. The last visit to that provider occurred in October 2011,
when she complained of back pain. She had declined surgery offered by Dr.
McNamera. Although she reported carpal tunnel symptoms for two years, that visit
was the first time those symptoms were mentioned to Dr. Hays. She weighed 232
pounds, was tender over the back with moderately decreased range of motion over the
thoracic spine and severely decreased range of motion of the lumbar spine. She had
positive Phalen6 and Tinel’s7 tests. She had evidence of muscle spasm and an
antalgic8 gait. Impression included bilateral carpal tunnel syndrome (based on one
time reported symptoms alone) and degenerative disk disease. Exhibit 6F. Although
the claimant continued to request refills of medication by telephone, a November
2012 note indicated that the claimant had not been seen in over a year, and Dr. Hays
refused to refill any more prescriptions unless she was seen in the office. Exhibit
10F. There is no evidence that she returned to see Dr. Hays.
She then began primary care with Fast Pace Urgent Care, but mainly was seen for
sinus and congestion. Other than weight (222 pounds to 244 pounds), the only
objective signs noted revolved around her sinus and respiratory complaints during
most visits. She complained of left hip pain in November 2012, for which she
received an injection, but she had full range of motion of the back and hips on
examination. She was tender over the left trochanter.9 She had thrush10 and low back
pain in January 2013, at which time she did have decreased range of motion of the
back and tenderness. Gait was normal. She complained of right upper back pain in
April 2013 radiating to the neck and shoulder. She had tenderness over the right
shoulder without any other objective signs. In May 2013, she complained of left
ankle pain of two weeks’ duration, and back pain. She sat comfortably during the
Polyarthralgias pertains to pain in many different joints. Dorland’s at 150, 1487.
Refers to a positive sign for carpal tunnel syndrome. Dorland’s at 1717.
A Tinel sign “indicates a partial lesion or the beginning regeneration of the nerve.”
Dorland’s at 1716.
Antalgic is defined as “counteracting or avoiding pain, as a posture or gait assumed so as to
lessen pain.” Dorland’s at 97.
Trochanter is “either of the two processes below the neck of the femur.” Dorland’s at 1970.
Thrush is a yeast infection that causes white patches in the mouth and on the tongue. See
http://www.webmd.com/oral-health/tc/thrush-topic-overview#1(last viewed August 10, 2017).
evaluation. Musculoskeletal and neurological examinations were normal. Impression
was low back pain, fatigue, and myalgias/fibromyalgia. Visits in September and
November 2013 were for sinus complaints. Physical examination was normal except
for signs related to her respiratory symptoms. Specifically, she did not have
decreased range of motion of any joint or her back, and gait was normal. She was
advised to stop smoking and to lose weight. Exhibits12F and 13F.
She has a remote history of colon resection for diverticulosis. Follow-up in recent
years has been very limited. She reported doing great, so cancelled her appointment
in October 2011with her specialist, Dr. Chokski. She was not seen again until April
2013, after a recent endoscopy. She reported no difficulty swallowing, no heartburn,
and dysphagia. Her only complaint was constipation. No examination was
performed. She was advised to follow a liquid diet for a couple of days. Impression
was gastroesophageal reflux disease, constipation, and gastritis. Exhibits 5 F and 11F.
She was referred for consultative physical and psychological evaluations. The
physical evaluation was performed by Dr. Rinehart in February 2012. There is no
indication that Dr. Rinehart received any medical records to review. She reported
back pain since a motor vehicle accident in 1995 (but worked thereafter). She mainly
stayed at home and did a little housekeeping. Interestingly, she told Dr. Rinehart that
“surgery was never considered to be a viable option.” Since Dr. McNamera had
recommended surgery in 2010, which she had refused, that would appear to be a
misstatement of the facts by the claimant. She had not seen her primary care
provider, Dr. Hays for pain medications for several months, since her insurance had
lapsed. She reported that she could stand for 45 minutes, sit for 35 minutes, and walk
for 25 minutes, but could do no lifting. In the Review of Systems, she complained
exclusively of back problems. Abdominal pain and seizures were not mentioned.
She smoked one pack of cigarettes a day. On examination, she was alert and oriented.
Blood pressure was 134/80. She weighed 223 pounds at a height of 65 inches. She
was able to get up and down from the examination table. She had decreased range
of motion of the back and all lower extremity joints, although range of motion of the
upper extremity joints and cervical spine were normal. There was no swelling or
warmth of any of the joints. She was a little unsteady. Sensory examination was
intact. Reflexes were 0-1+. Muscle strength of the upper extremities was 4-5/5 and
lower extremities was 3/4 due to pain. Impression was chronic back pain and
fibromyalgia (although none of the criteria for that disorder is mentioned. SSR
12-2.). Based on this one-time examination, Dr. Rinehart found that the claimant
could do no sitting, standing, walking, or lifting in an eight hour work day. Exhibit
7F. No weight is accorded this opinion, since the examination findings are
remarkably different from those reported from any treating source, and the
misinformation given him by the claimant. Those limitations would result in the
claimant recumbent eight hours a day, a level of limitation not even alleged by the
She also underwent a consultative psychological examination by Dr. Gale in February
2012, although the claimant told Dr. Gale that she primarily was disabled due to
physical problems. She was not even sure if psychological symptoms interfered with
the ability to work. She took Lexapro for anxiety and depression, prescribed by her
primary care provider. She had no history of any treatment by a mental health
professional. She reported living with her adult son in his condominium. She did her
own laundry, light housework, dusting, light cooking, and watched television and
read. She talked to friends on the telephone. She occasionally went out to eat with
friends. She had a normal gait and posture. There was no unusual motor behavior.
She was told she could get up and change positions during the evaluation as needed,
but never got up. She had not taken any pain medication prior to the interview. She
was preoccupied because of pain and bills. She reported periods of depression for six
months. She had minor difficulty with attention. She could recall two of three items
after five minutes. She had difficulty with serial three and seven testing. Memory
was grossly intact. Abstraction was normal. She could do basic computations. There
were no neurocognitive deficits. Impression was depressive disorder, N.O.S., with
anxiety. Dr. Gale found no impairment of understanding and remembering, social
interaction , or adaptation, but noted mild impairment of concentration and
persistence, which might be more severe with pain (not based on any psychological
impairment). Exhibit 8F.
The claimant testified at the hearing that she completed eighth grade in school, but
later got her high school diploma. She completed a medical billing course by mail,
but never worked at a job in that field. She worked at Publix as a cashier full time for
three years; she received long term disability for 18 months after she stopped
working. She had not worked since 2009. She could not work any longer because
of pain in her back. She could not sit or stand for long periods. Pain was at a level of
eight on a scale of ten with medication. She had a burning feeling and could not
focus. Pain was aggravated by bending, sitting long, or standing over ten minutes.
Pain radiated to her hips, knees, and ankles. Stretching aggravated it. No position
was comfortable. She had to move from side to side. She went from the recliner to
the couch. She laid down four hours a day to help control the pain. She had
difficulty concentrating over 30 minutes while watching television or movies. Pain
caused lack of focus. Bad and good days were equal in number; on bad days, she did
not get out of bed or shower. She testified that she had fibromyalgia, with hand,
shoulder, and ankle pain. She had difficulty sleeping at night. She was depressed and
anxious about what she could not do any longer. She did dishes and laundry; her son
had someone come in to clean. She felt too bad to socialize with friends. She could
no longer ride horses, play sports, or embroider. She read, but had difficulty
concentrating. She missed being able to garden. When asked about declining
recommended surgery, she said that the doctor could not 100% guarantee a cure, so
she did not have it. She had not had any specialized treatment since she lost her
insurance after 18 months of long term disability. She could not move after having
epidural steroid injections. She said that a discogram almost killed her; it hurt so bad.
In the function report completed by the claimant in December 2011, contained at
exhibit 5E, she said that she could not stand in one place for over a few minutes. She
fixed her coffee in the morning, showered, took her medications, microwaved food,
read, watched television, did laundry and dishes. She had difficulty putting on her
pants, and took showers because she could not get out of the tub. She cleaned her
own bathroom, wiped down countertops, and dusted, but could not do yard work,
sweeping, or mopping. She could drive short distances without problem. She grocery
shopped. She could handle her own finances. She read, watched television, and
listened to the radio. She talked to friends on the telephone, and occasionally went
out to eat. She could not lift over seven pounds. She did not handle stress well or
changes in routine. She wore a brace on her hand.
[The RFC] adopts the opinion of the state agency physician, Dr. Montague-Brown.
Exhibit 4A. The opinion of consultative examiner Rinehart is given no significant
weight for the reasons given above. Exhibit 7F. His limitations would essentially
result in the claimant being recumbent the entire day, which is not supported
anywhere in the medical evidence, or the claimant’s own reported activities.
IV. CONCLUSIONS OF LAW
A. Standard of Review
This Court reviews the final decision of the Commissioner to determine whether substantial
evidence supports that agency’s findings and whether it applied the correct legal standards. Miller
v. Comm’r of Soc. Sec., 811 F.3d 825, 833 (6th Cir. 2016). Substantial evidence means “‘more than
a mere scintilla’ but less than a preponderance; substantial evidence is such ‘relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Id. (quoting Buxton v. Halter,
246 F.3d 762, 772 (6th Cir. 2001)). In determining whether substantial evidence supports the
agency’s findings, a court must examine the record as a whole, “tak[ing] into account whatever in
the record fairly detracts from its weight.” Brooks v. Comm’r of Soc. Sec., 531 F. App’x 636, 641
(6th Cir. 2013) (quoting Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984)). The agency’s
decision must stand if substantial evidence supports it, even if the record contains evidence
supporting the opposite conclusion. See Hernandez v. Comm’r of Soc. Sec., 644 F. App’x 468, 473
(6th Cir. 2016) (citing Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)).
Accordingly, this court may not “try the case de novo, resolve conflicts in evidence, or decide
questions of credibility.” Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012) (quoting
Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007)). Where, however, an ALJ fails to follow
agency rules and regulations, the decision lacks the support of substantial evidence, “even where the
conclusion of the ALJ may be justified based upon the record.” Miller, 811 F.3d at 833 (quoting
Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014)).
B. The Five-Step Inquiry
The claimant bears the ultimate burden of establishing an entitlement to benefits by proving
his or her “inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). The claimant’s “physical or mental impairment” must “result from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” Id. § 423(d)(3). The Commissioner considers a
claimant’s case under a five-step sequential evaluation process, described by the Sixth Circuit Court
of Appeals as follows:
1) A claimant who is engaging in substantial gainful activity will not be found to be
disabled regardless of medical findings.
2) A claimant who does not have a severe impairment will not be found to be
3) A finding of disability will be made without consideration of vocational factors,
if a claimant is not working and is suffering from a severe impairment which meets
the duration requirement and which meets or equals a listed impairment in Appendix
1 to Subpart P of the Regulations. Claimants with lesser impairments proceed to step
4) A claimant who can perform work that he has done in the past will not be found
to be disabled.
5) If a claimant cannot perform his past work, other factors including age, education,
past work experience and residual functional capacity must be considered to
determine if other work can be performed.
Parks v. Soc. Sec. Admin., 413 F. App’x 856, 862 (6th Cir. 2011) (citing Cruse v. Comm’r of Soc.
Sec., 502 F.3d 532, 539 (6th Cir. 2007)); 20 C.F.R. §§ 404.1520, 416.920. The claimant bears the
burden through step four of proving the existence and severity of the limitations her impairments
cause and the fact that she cannot perform past relevant work; however, at step five, “the burden
shifts to the Commissioner to ‘identify a significant number of jobs in the economy that
accommodate the claimant’s residual functional capacity . . . .” Kepke v. Comm’r of Soc. Sec., 636
F. App’x 625, 628 (6th Cir. 2016) (quoting Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th
The Commissioner can carry its burden at the fifth step of the evaluation process by relying
on the Medical-Vocational Guidelines, otherwise known as “the grids,” but only if a nonexertional
impairment does not significantly limit the claimant, and then only when the claimant’s
characteristics precisely match the characteristics of the applicable grid rule. See Anderson v.
Comm’r of Soc. Sec., 406 F. App’x 32, 35 (6th Cir. 2010); Wright v. Massanari, 321 F.3d 611, 61516 (6th Cir. 2003). Otherwise, the grids only function as a guide to the disability determination.
Wright, 321 F.3d at 615-16; see also Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990). Where
the grids do not direct a conclusion as to the claimant’s disability, the SSA must rebut the claimant’s
prima facie case by coming forward with proof of the claimant’s individual vocational qualifications
to perform specific jobs, typically through vocational expert testimony. Anderson, 406 F. App’x at
35; see Wright, 321 F.3d at 616 (quoting SSR 83-12, 1983 WL 31253, *4 (Jan. 1, 1983)).
When determining a claimant’s residual functional capacity (“RFC”) at steps four and five,
the Commissioner must consider the combined effect of all the claimant’s impairments, mental and
physical, exertional and nonexertional, severe and nonsevere. 42 U.S.C. §§ 423(d)(2)(B), (5)(B);
Glenn v. Comm’r of Soc. Sec., 763 F.3d 494, 499 (6th Cir. 2014) (citing 20 C.F.R. § 404.1545(e)).
C. Plaintiff’s Statement of Errors
Plaintiff argues that the ALJ erred (1) by failing to properly weigh and evaluate the medical
opinion evidence; (2) by failing to perform a proper credibility analysis; and (3) by improperly
relying on an incomplete hypothetical question posed to the vocational expert. (Doc. No. 13, at 13,
19, 22.)11 Plaintiff requests that the Commissioner’s decision be vacated and that this case be
remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings.
Id. at 22.
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
Citations to the parties’ briefs reference the Court’s ecf pagination.
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 statement of
errors is addressed below.
1. The ALJ’s residual functional capacity determination is unsupported by
substantial evidence because the ALJ erred in weighing and evaluating the
medical opinion evidence.
Plaintiff contends that in determining Plaintiff’s RFC the ALJ erred “by failing to weigh the
opinion of treating spine specialist Dr. McNamara, erred by relying solely upon the opinion from a
non-examining physician to determine the RFC, and erred by according no weight to the opinion
from consultative examiner Dr. Rinehart.” (Doc. No. 13, at 14.) In response, Defendant contends
that Dr. McNamara’s November 2009 opinion concerning Plaintiff’s abilities was not relevant
because Plaintiff’s alleged disability onset date was August 4, 2011, and that the ALJ therefore was
not obligated to provide an analysis of that opinion. (Doc. No. 15, at 6-7.) Defendant contends that
the ALJ did consider Dr. McNamara’s treatment of Plaintiff during the relevant period. Id.
Defendant also contends that the ALJ gave appropriate reasons for declining to give any weight to
Dr. Rinehart’s opinion, and such reasoning is supported by substantial evidence.
Id. at 8.
Specifically, Defendant contends that Dr. Rinehart’s examination findings were remarkably different
than those reported by other doctors; Dr. Rinehart’s opinion was inconsistent with Plaintiff’s own
allegations; and Dr. Rinehart’s opinion was based on inaccuracies and misstatements. Id. at 8-9.
Defendant further contends that an ALJ may consider the opinion of a non-examining physician in
making a disability determination. Id. at 10.
Social security regulations and rulings establish the framework for an ALJ’s consideration
of medical opinions. See 20 C.F.R. §§ 404.1527, 416.927; SSR 96-2p. Acceptable medical sources
are divided into three categories: treating sources; examining but non-treating sources; and
non-examining sources. Id. A treating source “means your own acceptable medical source who
provides you, or has provided you, with medical treatment or evaluation” consistent with accepted
medical practice, and “who has, or has had, an ongoing treatment relationship with you.” 20 C.F.R.
§§ 404.1527, 416.927. An examining, but “nontreating source . . . has examined the claimant but
does not have, or did not have, an ongoing treatment relationship with h[im].” Smith v. Comm’r of
Soc. Sec., 482 F.3d 873, 875 (6th Cir. 2007) (internal citation and quotation marks omitted). A
“nonexamining source is a physician, psychologist, or other acceptable medical source who has not
examined [the claimant] but provides a medical or other opinion in [the claimant’s] case.” Id.
(internal citation and quotations marks omitted).
“When evaluating medical opinions, the SSA will generally give more weight to the opinion
of a source who has examined [the claimant] than to the opinion of a source who has not examined
[him].” Id. (internal citations and quotations marks omitted). “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)).
The ALJ is generally required to accord the opinion of a claimant’s treating physician
substantial deference. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004); 20 C.F.R.
§ 404.1527(c)(2). Such deference, however, is due only when a treating physician’s opinion is “well
supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence” before the ALJ. 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2). The ALJ “is not bound by conclusory statements of doctors, particularly where they
are unsupported by detailed objective criteria and documentation.” Buxton, 246 F.3d at 773.
Likewise, an ALJ may reasonably find that a medical opinion that is inconsistent with other evidence
in the record or that is internally inconsistent is unreliable. See Vorholt v. Comm’r of Soc. Sec., 409
F. App’x 883, 887-889 (6th Cir. 2011); see also White v. Comm’r, 572 F.3d 272, 286 (6th Cir. 2009)
(holding that an ALJ’s finding that a medical opinion conflicts with other evidence in the record is
a sufficient reason to discount the opinion); 20 C.F.R. §§ 404.1527(d)(4), 416.927(d)(4) (providing
that “the more consistent an opinion is with the record as a whole, the more weight we will give to
Additionally, an opinion that is based on the claimant’s reporting of her symptoms is not
entitled to controlling weight. See Young v. Sec’y of Health & Human Servs., 925 F.2d 146, 151
(6th Cir. 1990); see also Francis v. Comm’r Soc. Sec. Admin, 414 F. App’x 802, 804 (6th Cir. 2011)
(noting that a physician’s statement that merely regurgitates a claimant’s self-described symptoms
“is not a medical opinion at all.”). Rather, “[t]he more a medical source presents relevant evidence
to support an opinion, particularly medical signs and laboratory findings, the more weight [an ALJ]
will give that opinion.” 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3); see also Bell v. Barnhart, 148
F. App’x 277, 285 (6th Cir. 2014) (declining to give weight to a doctor’s opinion that was supported
by only the claimant’s reported symptoms).
Ultimately, the determination of disability is “the prerogative of the Commissioner, not the
treating physician.” Warner, 375 F.3d at 390 (quoting Harris v. Heckler, 726 F.2d 431, 435 (6th Cir.
1985)). As such, a treating physician’s opinion that a patient is disabled is not entitled to any special
significance. See 20 C.F.R. §§ 404.1527(d)(1)(3), 416.927(d)(1)(3); Bass, 499 F.3d at 511; Sims v.
Comm’r of Soc. Sec., 406 F. App’x 977, 980 n.1 (6th Cir. 2011) (recognizing that “the determination
of disability [is] the prerogative of the Commissioner, not the treating physician.”)
If the ALJ decides not to accord the opinion of a treating physician controlling weight, the
ALJ relies on a number of factors-including the length of the treatment relationship, the frequency
of evaluation, nature and extent of the treatment relationship, how well supported by medical
evidence the treating physician’s opinion is, the consistency of the treating physician’s opinion with
the record as a whole, and whether the treating physician is a specialist-to determine how much
weight to give the treating physician’s opinion. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6).
Where the ALJ finds that the treating physician is not entitled to controlling weight, the regulations
require the ALJ to give “good reasons” for the weight given to a treating source’s opinion. 20 C.F.R.
§§ 404.1527(c)(2), 416.927(c)(2). Consequently, a decision denying benefits has to state “specific
reasons for the weight given to the treating source’s medical opinion, 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.”
S.S.R. 96–2p, 1996 WL 374188 at *5 (1996). This procedural safeguard “ensures that the ALJ
applies the treating physician rule and permits meaningful review of the ALJ’s application of the
rule.” Wilson, 378 F.3d at 544.
Although courts prefer that they do so, ALJs need not explicitly mention in their decisions
every factor under 20 C.F.R. §§ 404.1527©, 416.927© when determining the weight to give the
opinion of a treating physician. See Adams v. Astrue, No. 1:07-cv-2543, 2008 WL 9396450, at *3,
n.5 (citing Thacker v. Comm’r of Soc. Sec., 99 F. App’x 661, 665 (6th Cir. 2004)). Nevertheless,
ALJs must still conduct an analysis sufficient for the court to engage in a “meaningful review of the
ALJ’s application of the [treating physician] rule.” Wilson, 378 F.3d at 544.
Plaintiff argues that the ALJ failed to consider the November 2009 opinion of Dr. McNamara,
Plaintiff’s treating spine specialist, who opined, “At the present time, [Plaintiff] is a cashier at Publix.
Given her low back condition, I think she needs to try to pursue long-term disability as the standing
and lifting required by the grocery business will not be suitable for her.” (Doc. No. 13, at 14; Tr.
223-24.) Plaintiff contends that this omission is significant because this opinion is at odds with the
ALJ’s determination that Plaintiff could perform light work and that the ALJ failed to provide good
reasons for rejecting this opinion. (Doc. No. 13, at 15.)
The ALJ noted that in January 2010 Dr. McNamara recommended a decompressive
laminectomy procedure for radiculopathy, but that Plaintiff elected not to have the surgery. (Tr. 14,
227.) The ALJ also noted that Plaintiff did not return to see Dr. McNamara after January 2010. (Tr.
14, 234, 295.) Although the ALJ did not discuss Dr. McNamara’s November 2009 opinion, that
opinion predated the alleged onset date by almost two years. “Courts have held that an ALJ’s failure
to mention a treating physician’s opinion, which was based on the claimant’s condition before the
alleged onset date, is harmless error.” Mohssen v. Comm’r of Soc. Sec., No. 12-14501, 2013 WL
6094728, at *11 (E.D. Mich. Nov. 20, 2013) (citing Heston v. Comm’r of Soc. Sec., 245 F.3d 528,
535 (6th Cir. 2001)); Burke v. Comm’r of Soc. Sec., No. 1:15-CV-83, 2016 WL 1156596, at *4
(W.D. Mich. Mar. 24, 2016) (“The Court finds no error in the ALJ’s failure to address [the plaintiff’s
treating physician’s] opinion, which was given more than two years before plaintiff’s alleged
disability onset date . . . .”) (citing Mohssen, 2013 WL 6094728, at *11); Moore v. Colvin, No.
14-12310, 2015 WL 4066735, at *4 (E.D. Mich. July 2, 2015) (“[F]ailure to mention even a treating
source’s opinion predating the alleged onset is, at most, harmless error.”); Owings v. Colvin, 133 F.
Supp. 3d 985, 1002 (M.D. Tenn. 2015) (“This court has previously held that the ALJ did not err in
not considering the opinion of a treating physician who did not treat the claimant during the relevant
time. Absent any authority to the contrary, the ALJ was not required to consider [the treating
physician’s] opinion because there is no bridge between it and the relevant period at issue.” citing
Litteral v. Colvin, 2014 WL 6997889, at *17 (M.D. Tenn. Dec. 30, 2014)); Austin v. Colvin, No.
3:13-CV-629-PLR, 2015 WL 1208638, at *10 (E.D. Tenn. Mar. 16, 2015) (where the plaintiff’s
treating physician’s statement that the plaintiff should not work “‘because he is lifting and this would
not be in his best interest,’” the district court noted, “First, this statement was made prior to Plaintiff’s
alleged onset date . . . and therefore is not illustrative of any functional limitations between the
alleged onset date and the date of hearing.”)
Further, “[f]irst and foremost, the opinion of disability falls within an area exclusively
reserved to the Commissioner and is not entitled to treatment as a medical opinion.” Massey v.
Colvin, No. 3:16-CV-00887, 2017 WL 56629, at *6 (M.D. Tenn. Jan. 5, 2017), report and
recommendation adopted sub nom. Massey v. Soc. Sec. Admin., No. 3:16-RCV-R00887, 2017 WL
1366918 (M.D. Tenn. Jan. 20, 2017) (citing 20 C.F.R. §§ 404.1527(d), 416.927(d); Stamps v.
Comm’r of Soc. Sec., No. 1:15-CV-0557, 2016 WL 4500793, at *5 (W.D. Mich. Aug. 29, 2016)
(holding that the ALJ is not bound by physician’s opinion that the claimant cannot work). “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.”). “A physician’s opinion that a claimant is disabled is entitled to no
deference because it is the prerogative of the Commissioner, not the treating physician, to make a
disability determination.” Gaskin v. Comm’r of Soc. Sec., 280 F. App’x 472, 474 (6th Cir. 2008);
Bass, 499 F.3d at 511 (“no special significance will be given to opinions of disability, even if they
come from a treating physician”) (internal quotations marks and citation omitted); see Massey, 2017
WL 56629, at *6 (finding that the ALJ did not err by declining to discuss the treating physician’s
opinion that “the Plaintiff is unfit for duty, absent an accommodation,” as that opinion “treads upon
the Commissioner’s province of determining disability and is not entitled to weight as a medical
Accordingly, the Court concludes that if the ALJ committed any error in declining not to
discuss Dr. McNamara’s opinion, such error was harmless.
Plaintiff next argues that the ALJ erred by according no weight to the opinion of consultative
examiner Dr. Rinehart, while completely adopting the opinion of Dr. Montague-Brown, the nonexamining State agency physician. (Doc. No. 13, at 16.) The Sixth Circuit has long held that “the
regulation requiring an ALJ to provide ‘good reasons’ for the weight given a treating physician’s
opinion does not apply to an ALJ’s failure to explain his favoring of one non-treating source’s
opinion over another.” Wright v. Colvin, No. 1:15-cv-01931, 2016 WL 5661595, at *9 (N.D. Ohio
Sept. 30, 2016) (citing Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 506-07 (6th Cir. 2006)).
Likewise, the ALJ is “under no special obligation” to provide great detail as to why the opinions of
the nonexamining providers “were more consistent with the overall record” than the examining, but
nontreating providers. Norris v. Comm’r of Soc. Sec., 461 F. App’x 433, 440 (6th Cir. 2012). As
long as “the ALJ’s decision adequately explains and justifies its determination as a whole, it satisfies
the necessary requirements. . . .” Id. 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.”).
Here, Dr. Rinehart’s examination of Plaintiff reflected that Plaintiff was able to get up and
down from the examination table. (Tr. 15, 341.) Plaintiff’s range of motion of her feet, ankles, knees
and hips could flex to approximately 90 degrees, but not any further due to pain. Id. Plaintiff also
had a decreased range of motion in her back. Id. However, Plaintiff’s range of motion of her upper
extremities and cervical spine were normal. Id. There was no swelling or warmth of any of her
joints. Id. Plaintiff’s mobility was somewhat poor, and she was a little unsteady. Id. Plaintiff’s
sensory examination was intact, her reflexes were 0-1+, and her muscle strength of the upper
extremities was 4-5/5 and of the lower extremities was 3/4 due to pain. Id. Dr. Rinehart’s assessment
was chronic back pain and fibromyalgia. Id. Based upon his examination of Plaintiff, Dr. Rinehart
opined that Plaintiff could not do any type of sitting, standing, lifting, or walking in an eight-hour
work day. (Tr. 15-16, 342.)
The ALJ accorded no weight to Dr. Rinehart’s opinion, stating that Dr. Rinehart’s
examination findings were remarkably different from those reported by other doctors. (Tr. 16.) The
ALJ noted that Dr. Rinehart did not indicate if he received any medical records to review. (Tr. 15.)
The ALJ noted that in August 2011 Plaintiff saw Physician Assistant Anthony Casamo, complaining
of increased back pain radiating down her left leg. (Tr. 14, 230.) Plaintiff’s examination was stable,
and a review of her images showed degenerative disk disease. (Tr. 230.) Plaintiff was advised to
obtain a second opinion regarding recommended back surgery, which she did not want to undergo.
(Tr. 14, 230, 234.) Plaintiff had a slight 4/5 weakness in the left lower extremity due to pain, her gait
was guarded, and she had a slightly decreased sensation to light touch on the lateral left foot. (Tr.
14, 232.) The ALJ noted that in August 2011 Plaintiff saw her primary care provided, Dr. James
Hayes, for a three month check-up, who reported that Plaintiff was overall doing very well. (Tr. 14,
300.) Plaintiff reported having continued lower back pain and having occasional polyarthralgias,
which had improved. Id. Plaintiff last saw Dr. Hayes in October 2011, complaining of back pain.
(Tr. 14, 295.) Dr. Hayes noted that Plaintiff had tenderness over the thoracic and lumbar spine, with
moderately decreased range of motion of the thoracic spine and severely decreased range of motion
of the lumbar spine. (Tr. 14, 298.) Plaintiff had positive Phalen’s and Tinel’s tests and had evidence
of muscle spasm and an antalgic gait. Id.
The ALJ noted that Plaintiff later began treatment at an urgent care center, and in November
2012, while being treated for left hip pain, Plaintiff’s examination reflected that she had no limitation
of movement of her lumbar spine and that there was no pain in all ranges of motion. (Tr. 15, 394.)
Plaintiff also had no limitations in her hips. Id. In May 2013, Plaintiff complained of left ankle pain
and back pain. (Tr. 15, 380.) Plaintiff ambulated without assistance and sat comfortably on the
examination table without difficulty or evidence of pain. (Tr. 15, 382.) In July 2013, Plaintiff’s
musculoskeletal and neurologic examinations showed that there was no evidence of muscle weakness
or reduced range of motion and her gait was normal; in November 2013, Plaintiff had no
musculoskeletal problems, and her gait was normal. (Tr. 15, 374, 406.)
The ALJ also accorded no weight to Dr. Rinehart’s opinion because Dr. Rinehart’s limitations
would result in Plaintiff being “recumbent eight hours a day, a level of limitation not even alleged
by the claimant.” (Tr. 16.) Plaintiff told Dr. Rinehart that she could stand for 45 minutes, sit for 35
minutes, and walk for 25 minutes. (Tr. 15, 339.) Plaintiff reported that she could not lift anything,
but said that she could wash dishes and do some laundry. (Tr. 339.) Plaintiff reported to Dr. Gale
that she did her laundry, some light housework, some light cooking, and some washing of dishes.
(Tr. 16, 345.) Dr. Gale noted that Plaintiff had a normal gait and posture and that she did not display
any unusual motor behavior. (Tr. 16, 346.) Dr. Gale told Plaintiff that she could get up and change
positions during the evaluation as needed due to her pain, but she never did. Id. Plaintiff had not
taken any pain medication prior to the interview. Id.
Further, the ALJ accorded no weight to Dr. Rinehart’s opinion because it was based upon
misinformation given to him by Plaintiff. (Tr. 16.) The ALJ noted that Plaintiff told Dr. Rinehart
that “surgery was never considered to be a viable option,” but that because Dr. McNamara
recommended surgery in 2010, which she had refused, that statement to Dr. Rinehart “would appear
to be a misstatement of the facts by the claimant.” (Tr. 15, 339.) As to Dr. Rinehart’s assessment
that Plaintiff suffered from fibromyalgia, this diagnosis was based on Plaintiff’s reporting that she
suffered from fibromyalgia. (Tr. 15, 339, 341.) Citing Social Security Ruling 12-2p, 2012 WL
3104869 (S.S.A. July 25, 2012), the ALJ noted that Dr. Rinehart’s examination report lacked the
specific findings to support that diagnosis. (Tr. 15.)12
In Walters v. Comm’r of Soc. Sec., No. 1:14-CV-481, 2015 WL 1851451 (S.D. Ohio Apr.
22, 2015), report and recommendation adopted, No. 1:14CV481, 2015 WL 5693640 (S.D. Ohio Sept.
29, 2015), appeal dismissed (July 8, 2016), the court explained:
The agency will find that a person has a [medically determinable impairment
(“MDI”)] of [fibromyalgia (“FM”)] if a physician diagnosed FM and provides the
evidence described under § II.A or § II.B of the Ruling, and the physician’s diagnosis
is not inconsistent with the other evidence in the individual’s case record. Id. Under
§ II. A., the agency “may find that a person has an MDI of FM if he or she has all
three of the following”: 1. A history of widespread pain-that is, pain in all quadrants
of the body (the right and left sides of the body, both above and below the waist) and
Based upon a review of the medical record, the Court finds that the ALJ properly considered
and analyzed Dr. Rinehart’s opinion in conjunction with the other medical evidence and that the ALJ
did not err in assessing no weight to Dr. Rinehart’s opinion, as the ALJ’s determination was
supported by substantial evidence.
Plaintiff also argues that the ALJ erred in relying on the opinion of a non-examining State
agency doctor. (Doc. No. 13, at 16.) Defendant contends that the ALJ properly relied on the opinion
of non-examining State agency physician, Dr. Karla Montague-Brown. (Doc. No. 15, at 10.) “An
ALJ may consider the opinion of a non-examining physician designated by the Secretary in
determining whether a claimant has medically determinable impairments.” Neal v. Astrue, No.
3:08-0464, 2009 WL 2135792, at *7 (M.D. Tenn. July 16, 2009) (citing Reynolds v. Secretary, 707
F.2d 927, 930 (6th Cir.1983)). “‘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
axial skeletal pain (the cervical spine, anterior chest, thoracic spine, or low back) that
has persisted (or that persisted) for at least 3 months’ and which “may fluctuate in
intensity and may not always be present.”; 2. “At least 11 positive tender points on
physical examination” which must be found in specified locations; and 3. Evidence
that other physical and mental disorders that could cause the symptoms or signs were
excluded, such as “imaging and other laboratory tests (for example, complete blood
counts, erythrocyte sedimentation rate, anti-nuclear antibody, thyroid function, and
rheumatoid factor).” Id., at *2-3. A person may be found to have an MDI of FM under
§ II.B. if she has all three of the following criteria: 1. A history of widespread pain
as described under § II. A. 12. “Repeated manifestations of six or more FM
symptoms, signs, or co-occurring conditions, especially manifestations of fatigue,
cognitive or memory problems (“fibro fog”), waking unrefreshed, depression, anxiety
disorder, or irritable bowel syndrome;” and 3. Evidence such as that described in §
II.A.3 that “other disorders that could cause these repeated manifestations of
symptoms, signs, or co-occurring conditions were excluded[.]” Id., at 3.
Id. at *5.
v. Comm’r of Soc. Sec., 529 F. App’x 706, 712 (6th Cir. 2013) (citation omitted); 20 C.F.R. §
“In appropriate circumstances, opinions from State agency medical and
psychological consultants . . . may be entitled to greater weight than the opinions of treating or
examining sources.” SSR 96-6p, 1996 WL 374180, at *3 (July 2, 1996); see also Hoskins v. Comm’r
of Soc. Sec., 106 F. App’x 412, 415 (6th Cir. 2004) (“State agency medical consultants are
considered experts and their opinions may be entitled to greater weight if their opinions are supported
by the evidence.”).
In arriving at her opinion, Dr. Montague-Brown considered Plaintiff’s function reports; her
work history; her seizure questionnaire; the consultative psychological examination by Dr. Gale; Dr.
Rinehart’s medical opinion; and medical records from Dr. Amit Choksi, Vanderbilt Bone and Joint
Clinic, Maury Regional Hospital, Dr. Brian Jackson and Dr. Hayes. (Tr. 64-67.) Plaintiff’s daily
activities reflected that she attended to her self-care needs with some difficulty due to physical
problems, prepared simple meals, completed light household chores, drove short distances, went
grocery shopping, and sometimes went out to eat with friends. (Tr. 68-69, 72.) Dr. Montague-Brown
found Plaintiff partially credible. (Tr. 69.) In assessing Plaintiff’s credibility, Dr. Montague-Brown
found Plaintiff’s activities of daily living and the location, duration, frequency and intensity of her
pain and symptoms as the most informative factors. Id. Dr. Montague-Brown opined that Plaintiff
could lift 20 pounds occasionally and 10 pounds frequently; stand and/or walk for about 6 hours in
an 8-hour workday; sit for about 6 hours in an 8-hour workday; that Plaintiff had no push and/or pull
limitations; that Plaintiff could climb stairs, balance, stoop, kneel, crouch, and crawl occasionally,
but never climb ladders; that Plaintiff was unlimited in reaching and feeling, but limited in handling
and fingering; and Plaintiff had no environmental limitations except to avoid all exposure to hazards.
Dr. Rinehart’s opinion was deemed “too restrictive” “due to the fact that even the most
severely restricted RFC would have some degree of walking, standing or sitting.” (Tr. 65-66, 70, 72,
73.) Dr. Montague-Brown stated that Dr. Rinehart’s opinion relied “heavily on the subjective report
and symptoms and limitations provided by [Plaintiff]” and that the totality of the evidence did not
support Dr. Rinehart’s opinion, as Dr. Rinehart’s opinion was an overestimate of the severity of
Plaintiff’s restrictions/limitations and was “based only on a snapshot of [Plaintiff’s] functioning.”
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). Nor does the RFC need to correspond to a
physician’s opinion because the Commissioner has the final authority to make determinations or
decisions on disability. Rudd v. Comm’r of Soc. Sec., 531 F. App’x 719, 728 (6th Cir. 2013).
Accordingly, the Court concludes that after evaluating the entire record, the ALJ considered that Dr.
Montague-Brown’s opinion was consistent with, and supported by, the medical record as a whole,
and properly relied on Dr. Montague-Brown’s opinion in determining Plaintiff’s RFC. The Court
finds no error in the ALJ’s evaluation of the State agency medical consultant’s opinion.
2. The ALJ’s credibility determination is unsupported by substantial evidence.
Plaintiff contends that the ALJ erred in evaluating Plaintiff’s credibility. (Doc. No. 13, at 19.)
Specifically, Plaintiff argues that the ALJ focused too strongly on Plaintiff’s statement to Dr.
Rinehart about her being recommended for surgery and that the ALJ did not properly consider
Plaintiff’s daily activities. Id. at 20-21. In response, Defendant asserts that Plaintiff’s inconsistent
statements cast doubt on her veracity and that her refusal to have surgery showed that she did not
view surgery as a viable option because her pain was not as severe as she claimed. (Doc. No. 15, at
12-13.) Defendant also asserts that the ALJ properly considered Plaintiff’s daily activities as one
factor in evaluating Plaintiff’s credibility. Id. at 13.
Although the ALJ, not the court system, is tasked with evaluating a witness’ credibility,
credibility findings must be “grounded in the evidence and articulated in the determination or
decision.” SSR 96-7P, 1996 WL 374186 at *4 (S.S.A. July 2, 1996); Rogers v. Commissioner, 486
F.3d 234, 247 (6th Cir. 2007). In addition to the objective evidence, the ALJ should consider the
following factors when assessing the credibility of a claimant’s statements regarding her symptoms:
1. The individual’s daily activities;
2. The location, duration, frequency, and intensity of the individual’s pain or other
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication the individual
takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, the individual receives or has received for relief of pain
or other symptoms;
6. Any measures other than treatment the individual uses or has used to relieve pain or other
symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or
sleeping on a board); and
7. Any other factors concerning the individual’s functional limitations and restrictions due
to pain or other symptoms.
SSR 96-7P, 1996 WL 374186 at * 3. Under SSR 96–7p, the ALJ is required to “consider” the
seven-listed factors, but there is no requirement that the ALJ discuss every factor. See White v.
Commissioner, 572 F.3d 272, 287 (6th Cir. 2009); see also Coleman v. Astrue, No. 2:09-cv-36, 2010
WL 4094299, at * 15 (M.D. Tenn. Oct.18, 2010) (finding that “[t]here is no requirement [ ] that the
ALJ expressly discuss each listed factor.”); Roberts v. Astrue, No. 1:09-cv-1518, 2010 WL 2342492,
at * 11 (N.D. Ohio June 9, 2010) (finding that “the ALJ need not analyze all seven factors contained
in SSR 96-7p to comply with the regulations”).
Credibility determinations concerning a claimant’s subjective complaints are within the
province of the ALJ. See Gooch v. Secretary of Health & Human Servs., 833 F.2d 589, 592 (6th
The Court does not make its own credibility determinations.
See Walters v.
Commissioner, 127 F.3d 525, 528 (6th Cir. 1997). The Court’s “review of a decision of the
Commissioner of Social Security, made through an administrative law judge, is extremely
circumscribed . . . .” Kuhn v. Commissioner, 124 F. App’x 943, 945 (6th Cir. 2005). The
Commissioner’s determination regarding the credibility of a claimant’s subjective complaints is
reviewed under the “substantial evidence” standard. This is a “highly deferential standard of review.”
Ulman, 693 F.3d at 714; see Warner, 375 F.3d at 392 (noting that credibility findings made by the
ALJ are given great deference.). “Claimants challenging the ALJ’s credibility determination face an
uphill battle.” Daniels v. Commissioner, 152 F. App’x 485, 488 (6th Cir. 2005); see Ritchie v.
Commissioner, 540 F. App’x 508, 511 (6th Cir. 2013) (recognizing that “[w]e have held that an
administrative law judge’s credibility findings are ‘virtually unchallengeable.’”) “Upon review, [the
Court must] accord to the ALJ’s determinations of credibility great weight and deference particularly
since the ALJ has the opportunity, which [the Court] d[oes] not, of observing a witness’s demeanor
while testifying.” Jones, 336 F.3d 469, 476 (6th Cir. 2003). “The ALJ’s findings as to a claimant’s
credibility are entitled to deference, because of the ALJ’s unique opportunity to observe the claimant
and judge her subjective complaints.” Buxton, 246 F.3d at 773; accord White, 572 F.3d at 287.
The Sixth Circuit recognizes that meaningful appellate review requires more than a blanket
assertion by an ALJ that “the claimant is not believable.” Rogers, 486 F.3d at 248. The Rogers court
observed that Social Security Ruling 96-7p requires that the ALJ explain his or her credibility
determination and that the explanation “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.
The ALJ noted that Plaintiff told Dr. Rinehart “that ‘surgery was never considered to be a
viable option,’” although Dr. McNamara recommended surgery in 2010, which Plaintiff had refused.
(Tr. 15, 17-18.) The ALJ noted that such statement “would appear to be a misstatement of the facts
by the claimant.” (Tr. 15, 18.) Plaintiff admits that she “did say this to Dr. Rinehart” and that
“surgery was in fact a viable option recommended by Dr. McNamara,” but states that “Plaintiff could
have meant surgery was not a viable option for her.” (Doc. No. 13, at 20) (emphasis added.)
However, this possible alternative interpretation is not sufficient to challenge the ALJ’s credibility
determination, which is accorded great weight and deference. Jones, 336 F.3d at 476; Warner, 375
F.3d at 392. The ALJ properly considered these inconsistent statements when assessing Plaintiff’s
credibility. Further, the ALJ properly considered Plaintiff’s activities as one factor in the evaluation
of her credibility. See 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. § 416.929(a) (2013). The ALJ noted that Plaintiff’s “reported
activities to the consultative examiners and in the function report are not nearly as restrictive as
[Plaintiff] reported at the hearing.” (Tr. 17.) The ALJ noted that Dr. Gale’s consultative report
reflected that Plaintiff did her own laundry, light housework, dusting, light cooking, and that she
occasionally went out to eat with friends. (Tr. 16.) Dr. Gale noted that Plaintiff had a normal gait
and posture, and there was no unusual motor behavior. Id. Dr. Gale told Plaintiff that she could get
up and change positions during the evaluation as needed, but she never did so. Id. Plaintiff also had
not taken any pain medication prior to the interview. (Tr. 16, 345.)
In construing the record as a whole, the Court concludes that the ALJ properly evaluated
Plaintiff’s credibility based upon substantial evidence in the record.
3. The ALJ’s Step 4 determination is unsupported by substantial evidence
because the ALJ relied upon an incomplete hypothetical question asked to the
Plaintiff contends that the ALJ’s reliance upon the testimony of a vocational expert in
determining that Plaintiff can perform her past relevant work as a cashier cannot provide substantial
evidence to support the ALJ’s decision, as it was based upon an incomplete hypothetical question.
(Doc. No. 13, at 22.) Specifically, Plaintiff contends that had the ALJ properly incorporated Dr.
McNamara’s and Dr. Rinehart’s opinions into the RFC, not relied upon the opinion of the
non-examining State agency physician, and properly evaluated Plaintiff’s credibility, a more proper
hypothetical question could have been submitted to the vocational expert. Id. However, as discussed
supra, the ALJ did not commit any error in declining to discuss Dr. McNamara’s opinion, in assessing
no weight to Dr. Rinehart’s opinion, in relying on Dr. Montague-Brown’s opinion in determining
Plaintiff’s RFC, and in evaluating Plaintiff’s credibility. Thus, the ALJ’s hypothetical question was
proper, and substantial evidence supported the ALJ’s finding that Plaintiff could perform the past
relevant work as cashier based on the testimony of the vocational expert at the hearing. See Temples,
515 F. App’x at 462 (“The ALJ’s hypothetical questions were not flawed because the opinions of Dr.
Jain and Dr. Bunch were not supported by the record. Therefore, the ALJ was not required to
incorporate these opinions in the hypothetical questions that were submitted to the vocational
expert.”); Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987) (“Substantial
evidence may be produced through reliance on the testimony of a vocational expert in response to
a ‘hypothetical’ question, but only ‘if the question accurately portrays [plaintiff’s] individual physical
and mental impairments.’”) (citation omitted); Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512-13
(6th Cir. 2010). Accordingly, this statement of error is without merit.
In light of the foregoing, Plaintiff’s Motion for Judgment on the Administrative Record will
be DENIED and the decision of the Commissioner will be AFFIRMED.
An appropriate order is filed herewith.
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE
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