Breece v. Social Security Administration
REPORT AND RECOMMENDATION: In light of the foregoing, the Magistrate Judge recommends that plaintiff's motion for judgment on the administrative record be DENIED and that the decision of the SSA be AFFIRMED. Signed by Magistrate Judge John S. Bryant on 3/2/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
DEBORAH ELAINE BREECE
SOCIAL SECURITY ADMINISTRATION
The Honorable Todd Campbell, District Judge
REPORT AND RECOMMENDATION
This is a civil action filed pursuant to 42 U.S.C. § 405(g), to obtain judicial
review of the final decision of the Social Security Administration (“SSA” or “the
Administration”) denying plaintiff’s application for disability insurance benefits, as provided
under Title II of the Social Security Act. The case is currently pending on plaintiff’s motion
for judgment on the administrative record (Docket Entry No. 14), to which defendant has
responded (Docket Entry No. 15). Upon consideration of these papers and the transcript of
the administrative record (Docket Entry No. 10),1 and for the reasons given below, the
undersigned recommends that plaintiff’s motion for judgment be DENIED and that the
decision of the SSA be AFFIRMED.
Plaintiff filed her application for benefits on November 22, 2010, alleging a
disability onset date of January 1, 2007, which was subsequently amended to June 6, 2010
Referenced hereinafter by page number(s) following the abbreviation “Tr.”
(Tr. 38, 42) Plaintiff’s claim was denied at the initial and reconsideration stages of state
agency review. Plaintiff subsequently requested de novo review of her claim by an
Administrative Law Judge (ALJ). The case came to be heard by the ALJ on April 2, 2013,
when plaintiff appeared without counsel and gave testimony. (Tr. 31-57) Testimony was
also received from an impartial vocational expert. At the conclusion of the hearing, the ALJ
took the matter under advisement until July 10, 2013, when he issued a written decision
finding plaintiff not disabled. (Tr. 11-22) That decision contains the following enumerated
The claimant last met the insured status requirements of the Social Security
Act on December 31, 2011.
The claimant did not engage in substantial gainful activity during the period
from her amended alleged onset date of June 6, 2010 through her date last
insured of December 31, 2011 (20 CFR 404.1571 et seq.).
Through the date last insured, the claimant had the following severe
impairments: degenerative disc disease; status post foot mass removal; and
major depressive [disorder] (20 CFR 404.1520(c)).
Through the date last insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled the severity of one
of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
After careful consideration of the entire record, the undersigned finds that,
through the date last insured, the claimant had the residual functional capacity
to perform light work as defined in 20 CFR 404.1567(b) except with only
occasional balancing, stooping, kneeling, crouching and crawling; occasionally
climbing ramps and stairs; no climbing ladders, ropes or scaffolds; frequent
overhead reaching bilaterally; would need a sit stand option every 30 to 60
minutes; only occasional contact with the general public; a job that involved
only simple, routine, repetitive and low level detailed, but not complex tasks;
and gradual and infrequent workplace changes.
Through the date last insured, the claimant was unable to perform any past
relevant work (20 CFR 404.1565).
The claimant was born on October 5, 1963 and was 48 years old, which is
defined as a younger individual age 18-49, on the date last insured (20 CFR
The claimant has at least a high school education and is able to communicate
in English (20 CFR 404.1564).
Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding
that the claimant is “not disabled,” whether or not the claimant has
transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P,
Through the date last insured, considering the claimant’s age, education, work
experience, and residual functional capacity, there were jobs that existed in
significant numbers in the national economy that the claimant could have
performed (20 CFR 404.1569 and 404.1569(a)).
The claimant was not under a disability, as defined in the Social Security Act,
at any time from January 1, 2007, the alleged onset date, through December
31, 2011, the date last insured (20 CFR 404.1520(g)).
(Tr. 13-15, 20-22)
On September 26, 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 Administration. 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.
II. Review of the Record
The following summary of the evidence of record is taken from plaintiff’s
brief, Docket Entry No. 14-1 at pp. 2-4:
Plaintiff was forty-eight years of age on the date last insured. (R. 62). She has a
high school education. (R. 38). Plaintiff has past relevant work as a cashier; sales clerk;
laundry worker; and waitress. (R. 24). Ms. Breece alleges disability due to a combination of
severe physical and mental impairments, including lumbar degenerative disc disease with
radiculopathy and stenosis; right foot mass status post removal; major depressive disorder;
and generalized anxiety disorder.
Kenneth Dodge, M.D. has served as Plaintiff's long-time treating physician
since 1998. (R. 399). Dr. Dodge provided a letter dated October 12, 2012 summarizing
Plaintiff's medical history, which stated as follows:
Deborah Breece is a patient of mine. I have seen for multiple years
for degenerative disc disease as well as mild to moderate spinal
stenosis. She also, in the past, has seen orthopaedics as well as a
pain doctor. At this time spinal epidurals have not felt to be
helpful. Surgery is not considered a good option noting the
significant amount of degenerative changes. She has been taking
Lortab 10/500 mg one tablet three times a day which has been
fairly effective. She is encouraged to try Mobic 15 mg daily. She
also is encouraged to return to water aerobics for which she has
In spite of the above medications, patient's ability to stand any
prolonged period of time is limited. Any significant physical
activity also dramatically impairs her ability to function. I suspect
her long term prognosis will remain poor.
(R. 644). In addition, Dr. Dodge completed a Medical Opinion dated November 14, 2012
regarding Plaintiff's physical functional abilities. (R. 729). Dr. Dodge opined that Ms. Breece
could lift and carry no more than ten pounds in a normal workday. He felt she would be able
to stand and walk about two hours and sit for about four hours in a normal workday. Dr.
Dodge also provided, among other things, that Plaintiff would need to change position in
short intervals; need to shift at will from position; would need to lie down unpredictably
once per day; and would be absent from work more than four days per month due to medical
reasons. (See R. 729-30).
[The objective medical evidence in this case includes a] lumbar MRI scan
performed July 6, 2010 [which] showed multi-level disc bulging causing central canal, lateral
recess and neural foraminal stenosis. Specifically, the MRI showed a lateral disc protrusion at
L2-3 resulting in moderate stenosis, mild bulges at L3-4 and L5-S1 and a moderate disc bulge
at L4-5. (R. 515). Lumbar myelogram performed October 8, 2010 showed L2-L3 and L3-L4
degenerative disc disease with associated spondylosis; moderate epidural deformities; L4-5
moderate anterior epidural deformity with moderate spinal stenosis and flattening of the L5
nerve roots bilaterally; and L5-S1 anterior epidural deformity with medial displacement of
the left S1 nerve root sleeve. (R. 531). CT scan performed the same date revealed a "large"
right paracentral disc herniation at L2-3 with moderate to severe right foraminal stenosis;
L4-5 moderate spinal stenosis; and L5-S1 disc herniation superimposed upon a diffuse disc
bulge. (R. 560). Plaintiff ultimately failed conservative treatment measures, including
epidural steroid injections (R. 335-38) and was ultimately referred to pain management.
Plaintiff attended pain management at the Pain Management Group throughout the calendar
year 2011. (R. 647-711).
Plaintiff has been under the care of mental health professional since at least
2007. (R. 643). On October 18, 2012, treating psychiatric nurse practitioner Carol Gilpin,
APRN-BC provided a written statement outlining Plaintiff's mental impairments. Ms. Gilpin
stated as follows:
I am writing as the treating nurse practitioner of psychiatry for my
patient referenced above, Deborah Breece. Ms. Breece has a
diagnosis of MDD Recurrent Moderate (296.32) and GAD
(300.02). Her current medications include Cymbalta 120 mg once
daily and Vyvanse 70 mg once every morning. Deborah's
symptoms include low mood, impaired focus and concentration,
feelings of worthlessness and guilt, poor sleep and severe fatigue.
She also suffers from feeling restless and on edge. Her current
prognosis is guarded. She may be able to achieve symptom relief
but symptom remission is unlikely. . . .
(R. 708). In addition, Ms. Gilpin completed a Mental Functional Assessment dated March 28,
2013 that endorsed "moderate" and "marked" limitations in all relevant areas. (R. 777-79).
Reference to addition record evidence is made in the discussion below, as
necessary to address the parties’ legal arguments.
III. Conclusions of Law
A. Standard of Review
This court reviews the final decision of the SSA to determine whether that
agency’s findings of fact are supported by substantial evidence in the record and whether the
correct legal standards were applied. Elam ex rel. Golay v. Comm’r of Soc. Sec., 348 F.3d
124, 125 (6th Cir. 2003). “Substantial evidence is defined as ‘more than a scintilla of evidence
but less than a preponderance; it is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.’” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th
Cir. 2007)(quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.
1994)). Even if the record contains substantial evidence that could have supported an
opposite conclusion, the SSA’s decision must stand if substantial evidence supports the
conclusion reached. E.g., Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir.
2005). Accordingly, while this court considers the record as a whole in determining whether
the SSA’s decision is substantially supported, it may not review the case de novo, resolve
conflicts in the evidence, or decide questions of credibility. See Bass v. McMahon, 499 F.3d
506, 509 (6th Cir. 2007); Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
B. Proceedings at the Administrative Level
The claimant has the ultimate burden to establish 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. at §
423(d)(3). In proceedings before the SSA, the claimant’s case is considered under a five-step
sequential evaluation process, described by the Sixth Circuit Court of Appeals as follows:
1) A claimant who is engaging in substantial gainful activity will not be found
to be disabled regardless of medical findings.
2) A claimant who does not have a severe impairment will not be found to be
3) A finding of disability will be made without consideration of vocational
factors, if a claimant is not working and is suffering from a severe impairment
which meets the duration requirement and which meets or equals a listed
impairment in Appendix 1 to Subpart P of the Regulations. Claimants with
lesser impairments proceed to step four.
4) A claimant who can perform work that he has done in the past will not be
found to be disabled.
5) If a claimant cannot perform his past work, other factors including age,
education, past work experience and residual functional capacity must be
considered to determine if other work can be performed.
Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007)(citing, e.g., Combs v. Comm’r
of Soc. Sec., 459 F.3d 640, 642-43 (6th Cir. 2006)(en banc)); 20 C.F.R. §§ 404.1520(b)-(f),
The SSA’s burden at the fifth step of the evaluation process can be carried by
relying on the medical-vocational guidelines, otherwise known as “the grids,” but only if the
claimant is not significantly limited by a nonexertional impairment, and then only when the
claimant’s characteristics identically match the characteristics of the applicable grid rule. See
Wright v. Massanari, 321 F.3d 611, 615-16 (6th Cir. 2003). Otherwise, the grids cannot be
used to direct a conclusion, but only as a guide to the disability determination. Id.; see also
Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990). In such cases 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, which is typically obtained through vocational expert (“VE”)
testimony. See Wright, 321 F.3d at 616 (quoting Soc. Sec. Rul. 83-12, 1983 WL 31253, *4
(S.S.A.)); see also Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987).
In determining residual functional capacity (“RFC”) for purposes of the
analysis required at steps four and five above, the SSA 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).
C. Plaintiff’s Statement of Errors
Plaintiff first argues that the ALJ erred in rejecting the opinion of her treating
physician, Dr. Dodge, without providing good reasons for this rejection. As the Sixth Circuit
has explained, the opinion of a treating source such as Dr. Dodge is to be reviewed
The Commissioner has elected to impose certain standards on the treatment of
medical source evidence. 20 C.F.R. § 404.1502. Under one such standard,
commonly called the treating physician rule, the Commissioner has mandated
that the ALJ “will” give a treating source's opinion controlling weight if it “is
well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in your
case record.” 20 C.F.R. § 404.1527[(c)]. If the ALJ declines to give a treating
source's opinion controlling weight, he must then balance the following
factors to determine what weight to give it: “the length of the treatment
relationship and the frequency of examination, the nature and extent of the
treatment relationship, supportability of the opinion, consistency of the
opinion with the record as a whole, and specialization of the treating source.”
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (citing 20
C.F.R. § 404.1527([c])(2)).
Importantly, the Commissioner imposes on its decision makers a clear duty to
“always give good reasons in our notice of determination or decision for the
weight we give [a] treating source’s opinion.” 20 C.F.R. § 404.1527([c])(2).
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.” Soc. Sec. Rul. No. 96–2p, 1996 SSR LEXIS 9, at *12
(Soc. Sec. Admin. July 2, 1996). This requirement is not simply a formality; it
is to safeguard the claimant's procedural rights. It is intended “to let claimants
understand the disposition of their cases, particularly in situations where a
claimant knows that his physician has deemed him disabled and therefore
might be especially bewildered when told by an administrative bureaucracy
that [ ]he is not.” Wilson, 378 F.3d at 544. Significantly, the requirement
safeguards a reviewing court's time, as it “permits meaningful” and efficient
“review of the ALJ's application of the [treating physician] rule.” Id. at 544-45.
Cole v. Astrue, 661 F.3d 931, 937-38 (6th Cir. 2011). Again, plaintiff does not argue that Dr.
Dodge’s opinion is due controlling weight, but claims error in the ALJ’s rejection of that
opinion without giving good reasons therefor. The ALJ’s decision contains the following
analysis of Dr. Dodge’s opinion that plaintiff’s impairments would preclude full time work:
The undersigned considered the opinion of the claimant’s long time treating
physician Dr. Dodge dated November 14, 2012 (Ex. 25F), but finds Dr. Dodge’s
opinion overly restrictive in light of the evidence of record, including his own
examinations of the claimant during the period in question that demonstrated
mostly findings of peripheral edema likely related to the claimant’s
consumption of salty foods, but no serious musculoskeletal or neurological
abnormalities (Ex. 5F). Dr. Dodge admitted in a letter dated October 12, 2012,
that the claimant’s use of Lortab has been fairly effective (Ex. 19F, p. 1). Given
Dr. Dodge’s statement, it is reasonable to assume that the claimant’s use of
Lortab throughout the period in question was also fairly effective. Further,
Dr. Dodge’s opinions were rendered after the claimant’s date last insured, and
Dr. Dodge gave no indication that his opinions were applicable to the
claimant’s ability to work during the period in question. Thus, the
undersigned given Dr. Dodge’s opinions little weight.
Plaintiff contends that these reasons are insufficient, relying principally upon
the results of imaging studies obtained during the relevant period to establish support for Dr.
Dodge’s subsequent assessment of plaintiff’s disabling level of impairment. However, while
the 2010 reports of x-ray, MRI, CT, and myelogram results in June, July, and October 2010
(Tr. 200-205, 511) do plainly establish an objective basis for plaintiff’s complaints of back and
leg pain, the ALJ properly acknowledged this fact (Tr. 15-16) before proceeding to question
Dr. Dodge’s assessment of the duration and severity of the resulting symptoms, in light of the
medical treatment she was receiving. Plaintiff takes issue with the ALJ’s citation of Dr.
Dodge’s treatment notes, arguing that those notes do not support the existence of a disabling
level of back and leg pain because he referred plaintiff to specialists for the treatment of her
spinal condition and pain management, rather than treat these conditions himself. (Docket
Entry No. 14-1 at 12) As defendant notes, this argument is a bit self-defeating, since it
invites the conclusion that Dr. Dodge was not in fact a treating physician with respect to
those conditions which formed the basis for his assessment. Notably, plaintiff failed to
produce an assessment from any treating specialist. Although the objective medical data
clearly supports the conclusion that plaintiff’s lumbar spine has suffered significant
degenerative changes, Dr. Dodge’s treatment notes do not provide substantial support for his
assessment of disabling limitations resulting therefrom.
Moreover, given this lack of specific attention from Dr. Dodge to the
conditions which plaintiff claims were disabling prior to 2012, the undersigned finds that the
ALJ reasonably questioned whether Dr. Dodge’s subsequent observation that plaintiff’s
symptoms were fairly controlled by Lortab would not also be the case during the relevant
period. In discussing plaintiff’s treatment at the pain management clinic, the ALJ noted that
plaintiff “admitted that her medications allow her to be more active and perform household
chores.” (Tr. 17, 651, 660, 663, 666) He further noted that plaintiff reported that her pain
medications gave her energy. (Tr. 17, 718) The ALJ observed that Dr. Dodge rendered his
assessment after plaintiff’s date last insured, during a time when he noted more than once
that Lortab held plaintiff’s pain in check. (Tr. 20, 464-67) Specifically, the ALJ made
reference to the following letter from Dr. Dodge in support of plaintiff’s disability claim,
dated October 12, 2012:
Deborah Breece is a patient of mine. I have seen her for multiple years for
degenerative disc disease as well as mild to moderate spinal stenosis. She also,
in the past, has seen orthopaedics as well as a pain doctor. At this time spinal
epidurals have not felt to be helpful. Surgery is not considered a good option
noting the significant amount of her degenerative changes. She has been
taking Lortab 10/500mg one tablet three times a day which has been fairly
effective. She is encouraged to try Mobic 15mg daily. She also is encouraged
to return to water aerobics for which she has found helpful.
In spite of the above medications, patient’s ability to stand any prolonged
period of time is limited. Any significant physical activity also dramatically
impairs her ability to function. I suspect her long term prognosis will remain
(Tr. 640) Defendant further notes that on the same day that Dr. Dodge completed his
assessment, he reported that plaintiff’s pain was “still present but manageable.” (Tr. 731)
Furthermore, the ALJ accounted for plaintiff’s limited ability to stand for prolonged periods
by including in his RFC finding the necessity of a sit/stand option allowing for postural
changes every 30 to 60 minutes.
Upon review of the ALJ’s rationale and the record in this case, the undersigned
must conclude that the ALJ gave good and sufficient reasons for discounting the weight of
Dr. Dodge’s assessment. While plaintiff also asserts the same arguments found insufficient
here vis-à-vis Dr. Dodge’s assessment in support of his position that the ALJ erroneously
discounted the October 2012 and March 2013 assessments of his treating mental health nurse
practitioner, Nurse Gilpin, the undersigned likewise finds substantial evidence supporting
the ALJ’s weighing of the mental health opinion evidence. This is particularly so inasmuch
as Nurse Gilpin is not an “acceptable medical source” whose opinion may be accorded the
preference established under the regulations for a treating physician, but is rather an “other
source” whose opinion is to be considered alongside the other relevant evidence of mental
impairment severity (or, as here, nonseverity). 20 C.F.R. § 404.1513(a), (d).
Plaintiff next argues that the ALJ erred in assigning significant weight to the
opinions of nonexamining consultants rendered on March 29 and October 11, 2011,
inasmuch as those opinions did not consider the complete medical record. The Sixth Circuit
has recently held that “[w]here the 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 an opinion’ from a non-examining source.” Miller v. Comm’r of Soc. Sec.,
--- F.3d ----, 2016 WL 362423, at *5 (6th Cir. 2016) (quoting Blakley v. Comm’r of Soc. Sec.,
581 F.3d 399, 409 (6th Cir. 2009)). It is clear in this case that the ALJ amply considered
plaintiff’s treatment during the entirety of the relevant period, and beyond. The second
nonexamining consultant, in affirming the March 2011 opinion of the first, stated on
October 11, 2011 -- less than two months before plaintiff’s date last insured -- that he
considered plaintiff’s allegation of worsening symptoms related to her back impairment, but
that the record did not reflect any additional treatment of that condition. (Tr. 439) The
record does contain treatment notes documenting plaintiff’s ongoing pain management visits
during the time between March and December 2011 (Tr. 647-99), but these notes do not
reveal any particular change in plaintiff’s condition or pain level. The ALJ recognized that
plaintiff sought treatment during July 2011 for a mass in her right foot, which had become
more painful recently and was surgically excised on July 18, 2011, but from which plaintiff
appeared to recover within the calendar year. (Tr. 18)2 The radiographic evidence in this
case was available to the nonexamining consultants, who recognized (as did the ALJ) that it
confirmed a back disorder that would be expected to cause pain. The ALJ properly
considered the evidence which the nonexamining consultants could not have, including the
November 2012 assessment of Dr. Dodge, and resolved the discrepancies as follows:
Although overly optimistic in some areas, the undersigned gives significant
weight to the opinions of the state agency medical consultant[s] in that they
support the contention that the claimant had the capacity for light exertional
activities during the relevant period (Exs. 7F and 11F). The residual functional
capacity above is generally consistent with medical imaging reports of the
claimant’s back, the claimant’s subjective reports of pain, considering
treatment records that showed a significant improvement in the claimant’s
pain with conservative measures, the claimant’s history of right foot surgeries,
the claimant’s testimony at the hearing, observations of the claimant,3 and
physical examinations of the claimant. Taken together, the claimant’s physical
impairments warrant no further restrictions than those indicated above. . . .
The ALJ makes reference to the note from plaintiff’s December 5, 2011 visit to Dr. Dodge, in
which the following information pertinent to her residual back and foot pain:
Discussion at length regarding her back and options that she has chosen. At this point
feels frustrated that pain still hasn’t changed in spite of nerve burns, multiple steroid
epidurals; finds that nonsteroidals sometimes will help. ... After much conversation
will use Lortab 10/500 one every eight hours or less. ... Patient promises to walk and
swim for thirty minutes per day at least three times per week.
Among the “observations of the claimant” which the ALJ had earlier noted were those
recorded by the consultative psychological examiner on April 26, 2011, when plaintiff was noted to
be polite, friendly, and calm, and “was observed chatting casually with her friend, no[t] exhibiting
over[t] symptoms of distress”; it was observed that plaintiff’s presentation did not support a diagnosis
of depression, that her performance on testing indicated that she was exaggerating her symptoms,
that she reported a robust range of daily activities, and that she adequately performed on all phases of
her mental status examination. (Tr. 19, 417-22)
(Tr. 19-20) In short, the ALJ’s consideration of the timing of the treating physician’s
assessment and its inconsistency with treatment records, as well as his consideration of
medical and testimonial evidence which postdates the nonexamining consultants’ opinions
and which aligns with his RFC finding, satisfies the undersigned that the circumstances were
appropriate for the ALJ to give greater weight to these consultants’ opinions than to the
opinion of Dr. Dodge. See Blakley, 581 F.3d at 409 (quoting Social Security Ruling 96-6p,
1996 WL 374180, at *3 (July 2, 1996)).
Plaintiff next argues that the ALJ erred in “playing doctor” when, lacking any
single opinion to which he could assign controlling weight, he arrived at a mental RFC
determination that essentially split the difference between the assessments of plaintiff’s
treating mental health nurse practitioner (who assessed numerous areas of marked functional
limitation (Tr. 773-75)) and the consultative psychological examiner (who assessed zero
functional limitation (Tr. 421)). Plaintiff cites Meece v. Barnhart, 192 Fed. Appx. 456, 465
(6th Cir. Aug. 8, 2006), as authority for this proposition. However, Meece is inapposite to the
issue raised by plaintiff here. In Meece, the ALJ rejected the claimant’s allegation of
disabling headaches by reference to the fact that his doctors did not prescribe certain drugs
commonly associated with migraine headaches, prompting the court to note that “[w]hile the
ALJ may have prescribed different pain medication than that prescribed by Plaintiff’s
doctors, this decision is beyond the expertise of the ALJ and is not a legitimate basis for an
adverse credibility determination.” Id. Far more compelling here are the cases cited by
defendant, in particular Rudd v. Comm’r of Soc. Sec., 531 Fed. Appx. 719 (6th Cir. Sept. 5,
2013), where the court stated:
Next, Rudd contends that the ALJ's RFC is not supported by substantial
evidence because no physician opined that Rudd was able to perform the
standing and walking requirements of light work. As we have mentioned, the
ALJ is charged with the responsibility of determining the RFC based on her
evaluation of the medical and non-medical evidence. As the Commissioner
points out, the Commissioner has final responsibility for deciding an
individual's RFC, SSR 96-5p, 1996 WL 374183 (July 2, 1996), and to require
the ALJ to base her RFC finding on a physician's opinion, “would, in effect,
confer upon the treating source the authority to make the determination or
decision about whether an individual is under a disability, and thus would be
an abdication of the Commissioner's statutory responsibility to determine
whether an individual is disabled.” Id. This argument is rejected.
Id. at 728. The undersigned finds no error in the ALJ determination of plaintiff’s mental
Finally, plaintiff argues that the ALJ erred in failing to account for the
evidence of her medical need to use a cane to assist in ambulation, and that this failure
undermined his determination that she could engage in the walking and carrying required
for light work. However, while the limited report of the consultative physical examiner in
this case made reference to plaintiff’s use of a cane as “medically necessary” (Tr. 404), the
ALJ clearly determined that while plaintiff was observed to make use of a cane, the record
did not support a finding that the use of a cane was necessary for ambulation. (Tr. 13, 17) In
support of this determination, the ALJ refers to clinical evidence that plaintiff was found to
display normal gait and station (Tr. 17, 18), and to the opinion evidence which does not
recognize the need for a cane. Substantial evidence supports this finding.
In sum, the undersigned 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). Accordingly, the undersigned would recommend that the
administrative decision be affirmed.
In light of the foregoing, the Magistrate Judge recommends that plaintiff’s
motion for judgment on the administrative record be DENIED and that the decision of the
SSA be AFFIRMED.
Any party has fourteen (14) days from receipt of this Report and
Recommendation in which to file any written objections to it with the District Court. Any
party opposing said objections shall have fourteen (14) days from receipt of any objections
filed in which to file any responses to said objections. Failure to file specific objections
within fourteen (14) days of receipt of this Report and Recommendation can constitute a
waiver of further appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140 (1985);
Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004)(en banc).
ENTERED this 2nd day of March, 2016.
s/ John S. Bryant
JOHN S. BRYANT
UNITED STATES MAGISTRATE JUDGE
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