Shrum v. Social Security Administration

Filing 23

REPORT AND RECOMMENDATION: On January 30, 2018, the case was assigned to the undersigned pursuant to 28 U.S.C. § 636 for a Report and Recommendation. For the reasons set forth below, I recommend that Plaintiffs Motion [Docket # 18 be DENIED. Signed by Magistrate Judge R. Steven Whalen on 6/5/18. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs) Modified on 6/5/2018 (afs).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

DEBRA RADER SHRUM,
Plaintiff,

Civil Action No. 16-02870
HON. ALETA A. TRAUGER
U.S. District Judge
HON. R. STEVEN WHALEN
U.S. Magistrate Judge

v.

COMMISSIONER OF SOCIAL
SECURITY,

Defendant.
_____________________________/
REPORT AND RECOMMENDATION
Plaintiff Debra Rader Shrum (“Plaintiff”) brings this action under 42 U.S.C. §405(g),
challenging a final decision of Defendant Commissioner denying her application for
Disability Insurance Benefits under Title II of the Social Security Act. On April 14, 2017,
Plaintiff filed a Motion for Judgment [Docket #18]. On January 30, 2018, the case was
assigned to the undersigned pursuant to 28 U.S.C. § 636 for a Report and Recommendation.
For the reasons set forth below, I recommend that Plaintiff’s Motion [Docket #18] be
DENIED.

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I. PROCEDURAL HISTORY
Plaintiff filed an application for Disability Insurance Benefits (“DIB”) on June 24,
2011, alleging disability as of May 4, 2010 (Tr. 229-230). After the initial denial of the
claim, Plaintiff requested an administrative hearing, held on February 1, 2013 (Tr. 88-131).
On March 15, 2013, Administrative Law Judge (“ALJ”) Brian Dougherty found that Plaintiff
was capable of performing her past relevant work as a computer clerk and as a customer
service representative (Tr. 144-145). On June 20, 2014, the Appeals Council remanded the
case for administrative proceedings, directing that the ALJ (1) provide an assessment of
Plaintiff’s mental limitations, (2) provide a rationale for the limitations found in the Residual
Functional Capacity (“RFC”), and, (3) determine whether Plaintiff’s past work activity rose
to the level of “past relevant work” (Tr. 151-152). The Appeals Council also directed the
ALJ to take supplemental testimony from a Vocational Expert (“VE”) “[i]f warranted by the
expanded record” (Tr. 152).
ALJ Dougherty held a second hearing on June 25, 2015 (Tr. 36).

Plaintiff,

represented by attorney Tina Foster, testified, as did VE Rebecca Williams (Tr. 45-76, 7681). On July 31, 2015, ALJ Dougherty issued a partially favorable decision, finding that
as of September 1, 2014, Plaintiff was disabled (Tr. 25-29). On September 22, 2016, the
Appeals Council denied review (Tr. 1-3). Plaintiff filed for judicial review of the final
decision on November 14, 2016.

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II. BACKGROUND FACTS
Plaintiff, born November 9, 1961, was 53 when ALJ Dougherty issued his decision
(Tr. 29, 229).

She completed two years of college and worked previously as a

“coordinator/auditor” and global supply chain specialist (Tr. 251). Her application for
benefits alleges disability resulting from migraines, anxiety, depression, Gastroesophageal
Reflux Disease (“GERD”), stress, fatigue, heel spurs, bunions, and a variety of upper
extremity and back problems (Tr. 249). She reported that she stopped working because she
was laid off (Tr. 250).
A.

Plaintiff’s Testimony

Plaintiff offered the following testimony at the June 25, 2015 hearing:
She lived with her husband (Tr. 45). Her 10-year-old grandson lived with them on
weekdays (Tr. 45). Her husband continued to work (Tr. 47). Plaintiff relied on “frozen
foods” for meal preparation (Tr. 47). Her husband grocery shopped, performed the heavier
laundry chores, and vacuumed (Tr. 47). Plaintiff held a valid driver’s license and was able
to drive up to 10 miles at a time before experienced leg and back pain (Tr. 49). She received
a handicap placard for her car several years earlier (Tr. 50). She last worked in 2010 (Tr.
50).
Plaintiff received a Workers’ Compensation settlement due to “repetitive motion type
. . . injury” in 1989 or 1990 (Tr. 52-53). She attributed her “lay-off” at her most recent
position to her frequent migraines, but acknowledged that three other individuals had been

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terminated at the same time (Tr. 53).
Plaintiff was unable to work due to migraines, noting that before being laid off, she
used up her leave and vacation time due to the condition (Tr. 58). She was unable to type
well due to hand problems (Tr. 60). She denied overuse of pain medication, noting that her
current dosage eased her pain without preventing her from functioning “at all” (Tr. 60-61).
Physical therapy and occupational therapy worsened her condition (Tr. 64). She experienced
pain while sitting and walked with a limp (Tr. 65). Before hurting her back in 2009, she was
able to walk four miles a day but now experienced discomfort even walking to the mailbox
(Tr. 66).
In response to questioning by her attorney, Plaintiff testified that she was unable to
hold or carry five pounds on a consistent basis (Tr. 69). Before being laid off, migraines
caused her to miss three to four days of work each month (Tr. 70). She experienced two to
three migraines each week lasting between four and ten hours (Tr. 70-71). In addition, she
experienced chronic non-migraine headaches and sleep disturbances (Tr. 72). Due to nonrestful sleep, she required two to three naps a day (Tr. 72). She spent a total of five hours a
day napping (Tr. 73). Due to migraines and depression, she experienced comprehension and
memory problems (Tr. 73-74). Her ability to work with others was compromised by
depression and anxiety (Tr. 75). She experienced problems changing routines (Tr. 75-76).

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B.

Medical Evidence
1. Records Related to Plaintiff’s Treatment1

February, 2010 records by Robert McDaniel, M.D. note Plaintiff’s report that her
headaches were “not quite as frequent and . . . easier to control” (Tr. 381). Plaintiff reported
that she was sleeping well and “missing less work” (Tr. 381). A May, 2010 MRI of the
lumbar spine showed only mild degenerative disc disease with a shallow disc protrusion at
L2-L3 (Tr. 375, 467). Dr. McDaniel’s July, 2010 records state that Plaintiff experienced
“situational stress and anxiety” due to losing her job and her husband’s reduction in hours
(Tr. 379). The same month, T. Scott Baker, M.D. noted Plaintiff’s report of radiating back
pain (Tr. 444). He observed that Plaintiff was in no acute distress with a normal mental
status examination (Tr. 446). She demonstrated a normal gait, full muscle strength, and
normal muscle tone (Tr. 446). Physical therapy records note that Plaintiff’s goals were “met”
(Tr. 464). The following month and in September and October, 2010, he administered
epidural injections (Tr. 338, 440, 442). In November, 2010, Plaintiff reported that her back
condition was unchanged (Tr. 435).
January, 2011 range of motion studies were unremarkable (Tr. 430). In February,
2011, Dr. McDaniel recommended that Plaintiff exercise and lose weight (Tr. 377). The
same month, she underwent a fasciotomy of the left foot for the condition of plantar fasciitis

1

Records significantly predating the alleged onset date of May 4, 2010 and records
created well after September 1, 2014 (onset of disability date found by the ALJ) are
omitted from the present discussion.
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(Tr. 453). Followup records show initially good results (Tr. 454-455). March, 2011 records
by Kimberly Plourde, M.D. state that Plaintiff was able to walk without difficulty (Tr. 468).
In May, 2011, Plaintiff underwent additional epidural injections without complications (Tr.
418). The same month, Plaintiff reported “constant” left foot pain (Tr. 448). Dr. Baker’s
August, 2011 records note Plaintiff’s report of “9/10” pain on average (Tr. 471). He advised
her to “stay active and continue home exercise program” (Tr. 473).
Dr. Baker’s April, 2012 records note full muscle strength despite Plaintiff’s report of
continuing, intractable pain (Tr. 607-609). May, 2012 audiological testing showed “mild to
profound asymmetrical sensorineural hearing loss bilaterally” but that Plaintiff retained
“excellent” word recognition in both ears (Tr. 651). August, 2012 records also show full
muscle strength (Tr. 605). Dr. McDaniel’s October, 2012 records note Plaintiff’s report of
migraines once or twice a week (Tr. 618).
In April and August, 2013, Dr. Baker noted that conservative treatment for back pain
“provided a reduction in pain, improved quality of life, and improved activity level” (Tr. 688,
695). Dr. Baker’s January, 2014 records note good results from physical therapy, home
exercise, and transcutaneous electrical stimulation (“TENS”) (Tr. 711). February, 2014
imaging studies of the bilateral hands showed moderate osteoarthritis of the thumb joints (Tr.
717). In March, 2014, Dr. Baker administered bilateral wrist injections, noting that
conservative measures “including medications and exercise” had failed (Tr. 718-719).
September, 2014 EMG testing of the upper extremities slowed “very mild to mild” bilateral

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neuropathy of the wrist (Tr. 746). In December, 2014, Dr. Baker discharged Plaintiff for
“inappropriate and/or threatening behavior” toward staff (Tr. 760).
2. Non-Treating Records
In August, 2011, Marie La Vasque, MA, on behalf of Susan R. Vaught, Ph.D.,
performed a consultative psychological examination, noting Plaintiff’s report that daily
activities were curtailed by migraines and back and foot pain (Tr. 506).

La Vasque

concluded that Plaintiff’s attention “appeared to be intact, but her concentration appeared to
be mildly to moderately impaired” with mild impairment in short-term memory (Tr. 507).
La Vasque noted that Plaintiff’s allegations of depression and anxiety bore a “primarily . .
. somatic focus” (Tr. 507). She found that Plaintiff was capable of “understanding simple
and complex instructions but “may have difficulty adapting to changes in work environment
and/or job requirements” (Tr. 508).
The following month, Babar Parvez, M.D. examined Plaintiff on behalf of the SSA,
noting full strength in all extremities (Tr. 511). He noted a normal range of motion except
for restriction of the dorsolumbar spine and left ankle (Tr. 512). The same month, R.
Warren, M.D. performed a non-examining Psychiatric Review Technique, finding that as a
result of depression and anxiety, Plaintiff experienced mild restriction in activities of daily
living and moderate restriction in social functioning and concentration, persistence, or pace
(Tr. 513, 516, 518, 523). Dr. Warren found that Plaintiff experienced moderate limitation
in carrying out detailed instructions, maintaining concentration for extended periods, working

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within a schedule, working with others without distraction, completing a normal workweek
without psychologically-based interruption, interacting appropriately with the public,
accepting instruction, and getting along with coworkers (Tr. 527-528). He nonetheless
concluded that Plaintiff was capable of performing unskilled work (Tr. 525, 529).
Also in September, 2011, Tyra Harris, M.D. performed a non-examining review of
the treating and consultative records, finding that Plaintiff could lift 20 pounds occasionally
and 10 frequently; stand or walk at least two hours in an eight-hour workday and sit for six;
and push and pull without limitation (Tr. 532). Dr. Harris found that Plaintiff could climb
stairs/ramps, kneel, crouch and crawl occasionally and frequently balance and stoop (Tr.
533). She found that Plaintiff was precluded from all climbing or ladders, ropes, or scaffolds
and should avoid concentrated exposure to hazards such as machinery or heights (Tr. 533,
535). She found Plaintiff “partially credible” (Tr. 538).
In November, 2011, Jenaan Khaleeli, Psy.D. affirmed Dr. Warren’s September, 2011
findings (Tr. 548). The same month, Thomas Thrush, M.D. performed a non-examining
review of the examining and consultative records on behalf of the SSA, finding that Plaintiff
could lift 20 pounds occasionally and 10 frequently; sit, stand, or walk for six hours in an
eight-hour workday; and push and pull without limitation (Tr. 550). He found that Plaintiff
could perform occasional postural activity (Tr. 551). He cited treating records noting a
normal gait and full muscle strength (Tr. 556).

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On September 24, 2014, Albert Gomez, M.D. performed a consultative physical
examination on behalf of the SSA, noting an antalgic gait and moderate difficulty getting on
and off the examining table (Tr. 727). He noted a 3/5 hand grip and motor strength in the
upper extremities (Tr. 728). Plaintiff was unable to tandem walk, squat, or stand on one leg
(Tr. 728). Dr. Gomez found that Plaintiff was limited to lifting 10 pounds on an occasional
basis but no carrying (Tr. 730). He found that Plaintiff was limited to sitting for three hours,
standing for two, and walking for one in an eight-hour day (Tr. 731). He limited Plaintiff to
occasional manipulative activity with a preclusion on pushing and pulling (Tr. 732). He
precluded all postural activity except occasional stooping (Tr. 733). He precluded all work
involving unprotected heights, moving machinery, and vibration and limited Plaintiff to
occasional operation of a motor vehicle, airborne hazards, and temperature extremes (Tr.
734). He found that Plaintiff was unable to walk for even one block on rough or uneven
surfaces (Tr. 735). The following month, Karla D. McQuain, Ph.D. found that due to
depression and anxiety, Plaintiff experienced short-term memory impairment, mild
impairment in concentration and moderate impairment in social functioning and adaptability
(Tr. 741). Dr. McQuain found moderate limitation in interacting with public, supervisors,
and coworkers and moderate difficulty adapting to workplace changes (Tr. 743).
C. Vocational Expert
VE Rebecca Williams classified Plaintiff’s past relevant work as a booking clerk as
sedentary and skilled; budget record clerk, sedentary/skilled; and internal auditor, light

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(sedentary as performed)/skilled2 (Tr. 76-77). The ALJ then described a hypothetical
individual of Plaintiff’s age, education, and work background:
[C]onsider that [this] individual can occasionally lift 20 pounds, frequently lift
10 pounds, consider that standing and walking are two hours per day . . . sitting
is approximately six hours per day. Postural activities on an occasional basis,
with no use of ladders, no exposures to any hazards. From a mental
standpoint, consider the individual could understand, remember, and carry out
simple tasks and instructions, with occasional interaction with supervisors,
frequent interaction with the public. Based on those limitations, is the past
relevant work in those three positions you identified available? (Tr. 78).
The VE testified that the above limitations would preclude Plaintiff’s past relevant
work but would allow for the light, unskilled work of a storage facility rental clerk (43,000
positions in the national economy); press operator (25,000); and sewing machine operator
(35,000) (Tr. 79). The VE testified further that if the same individual were limited to lifting
10 pounds occasionally and five frequently; sitting, standing, or walking three hours a day;
occasional handling, fingering, and reaching, and a preclusion on all postural activities, all
work would be precluded (Tr. 80).

2

20 C.F.R. § 404.1567(a-d) defines sedentary work as “lifting no more than 10 pounds
at a time and occasionally lifting or carrying articles like docket files, ledgers, and small
tools; light work as “lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds;” medium work as “lifting no more than 50
pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds;” and
that exertionally heavy work “involves lifting no more than 100 pounds at a time with
frequent lifting or carrying of objects weighing up to 50 pounds.
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In response to questioning by Plaintiff’s attorney, the VE stating that the job of arbor
press operator was classified as light due to its use of hand and foot controls (Tr. 80). She
noted further that the position of storage facility rental clerk was classified as light work
“more because of the lifting” than standing and walking (Tr. 81). The VE stated that the
need to miss three to four days of work each month would preclude all unskilled work (Tr.
81).
D. The ALJ’s Decision
ALJ Dougherty issued a partially favorable decision (Tr. 16-29). He found that as of
September 1, 2014, Plaintiff was limited to sedentary work and was thus disabled3 (Tr. 29).
The ALJ found that for the period proceeding September 1, 2014, Plaintiff was not
disabled.

Citing the medical transcript, ALJ Dougherty found that while Plaintiff

experienced the severe impairments of “post-coccyx fracture, lumbosacral spondylosis
without myelopathy, radiculopathy, chronic pain syndrome, lumbar degenerative disc disease,
[herniated nucleus pulposus], plantar fasciitis, migraines, gastroesophageal reflux disease,
irritable bowel syndrome, anxiety and depression, none of the impairments met or medically
equaled “the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P,

3

Plaintiff, born November 9, 1961, was 52 on September 1, 2014. Under the “Grids,”
an individual limited to exertionally sedentary, unskilled work between the ages 50 to 55
(“closely approaching advanced age”) directs a disability finding. 20 C.F.R. part 404, subpart
P, App. 2, Rule 201.14.
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Appendix 1”4 (Tr. 18-19). The ALJ found that Plaintiff experienced moderate limitation in
social functioning and concentration, persistence, or pace (Tr. 19). From May 4, 2010 to
September 1, 2014, the ALJ found that Plaintiff retained the Residual Functional Capacity
(“RFC”) for exertionally light work with the following additional limitations:
[S]he could occasionally lift/carry 20 pounds and frequently lift/carry ten
pounds, could stand/walk for two hours and could sit for six hours. She could
only occasionally climb stairs and ramps, balance, stoop, kneel, crouch and
crawl, but could never climb ladders, ropes or scaffolds. She could never be
exposed to environmental hazards. She could understand, remember and
carryout simple instructions and tasks, have occasional interaction with
supervisors and frequent interaction with the general public (Tr. 19).
Citing the VE’s testimony, the ALJ found that while Plaintiff was unable to perform
any of her past relevant work, she could perform the light, unskilled work of a storage rental
clerk, press operator, and sewing machine operator (Tr. 28, 79).
The ALJ discounted Plaintiff’s allegations of disabling limitation for the period
predating September 1, 2014 (Tr. 19). He noted that a May, 2010 MRI of the lumbar spine
showed only mild degenerative disc disease (Tr. 21). He cited 2010 and 2011 records
showing improvement with conservative treatment (Tr. 21). He noted that Plaintiff reported
good results from the intermittent use of psychotropic medication for the conditions of
anxiety and depression (Tr. 22). In support of the RFC, he cited the non-examining source
4

The ALJ found that as of September 1, 2014, Plaintiff also experienced the severe
impairment arthritis of the hand (Tr. 18). He noted that while a 1994 Workers’
Compensation settlement noted limitations of the hand, there were “no diagnosis or treatment
record in the file addressing this condition before the claimant saw the independent
consultant in September of 2014 (Tr. 19).
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findings that Plaintiff was capable of a reduced range of light work (Tr. 23).
The ALJ cited the records stating that Plaintiff “wanted to quit work in 2008, but did
not quite due to financial issues” (Tr. 23). He noted that while Plaintiff claimed to be
“discharged” for taken too many sick days, “her description” of the work termination
suggested that she was laid off as part of a reduction in work force (Tr. 23). He noted that
Plaintiff was capable of driving, doing errands for her mother, laundry, shopping with the use
of an electrical cart, reading, paying bills, doing errands, and using a computer (Tr. 24). He
cited a psychological examiner’s finding of “excess focus on her somatic complaints” (Tr.
24). He found that Plaintiff had “suboptimal motivation to reenter the workforce” (Tr. 24).

III. STANDARD OF REVIEW
The district court reviews the final decision of the Commissioner to determine
whether it is supported by substantial evidence. 42 U.S.C. §405(g); Sherrill v. Secretary of
Health and Human Services, 757 F.2d 803, 804 (6th Cir. 1985). Substantial evidence is more
than a scintilla but less than a preponderance. It is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.
389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229, S. Ct. 206, 83 L.Ed.126 (1938)). The standard of review is deferential and
“presupposes that there is a ‘zone of choice’ within which decision makers can go either way,
without interference from the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir.
1986)(en banc). In determining whether the evidence is substantial, the court must “take into
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account whatever in the record fairly detracts from its weight.” Wages v. Secretary of Health
& Human Services, 755 F.2d 495, 497 (6th Cir. 1985). The court must examine the
administrative record as a whole, and may look to any evidence in the record, regardless of
whether it has been cited by the ALJ. Walker v. Secretary of Health and Human Services,
884 F.2d 241, 245 (6th Cir. 1989).
IV. FRAMEWORK FOR DISABILITY DETERMINATIONS
Disability is defined in the Social Security Act as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months.” 42 U.S.C. §423(d)(1)(A). In
evaluating whether a claimant is disabled, the Commissioner is to consider, in sequence,
whether the claimant: 1) worked during the alleged period of disability; 2) has a severe
impairment; 3) has an impairment that meets or equals the requirements of an impairment
listed in the regulations; 4) can return to past relevant work; and 5) if not, whether he or she
can perform other work in the national economy. 20 C.F.R. §416.920(a). The Plaintiff has
the burden of proof at steps one through four, but the burden shifts to the Commissioner at
step five to demonstrate that, “notwithstanding the claimant's impairment, he retains the
residual functional capacity to perform specific jobs existing in the national economy.”
Richardson v. Secretary of Health & Human Services, 735 F.2d 962, 964 (6th Cir.1984).

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V. ANALYSIS
Plaintiff disputes the finding that she was not disabled until September 1, 2014,
making three arguments in favor of remand. Plaintiff’s Brief, 5-18, Docket #19, Pg ID
907. First, she contends that the RFC for the period prior to September 1, 2014 describes
essentially sedentary rather than light work. Id. at 5-10. Next, she argues that the ALJ
erred by declining to “consult a medical expert” to determine the extent of her upper
extremity limitations in the period before September 1, 2014. Id. at 10-14. Finally, she
faults the ALJ for failing to consider her “stellar work history” in discounting her
allegations of limitation. Id. at 14-18.
A. Light Work
Plaintiff contends that while the ALJ found that she could perform exertionally
“light” work prior to September 1, 2014, the RFC limiting her to standing or walking for
two hours a day actually describes sedentary work. Id. at 5-10 (citing Tr. 19).
Under 20 C.F.R. § 404.1567(b), light work is defined as “lifting no more than 20
pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.”
Light work is characterized by the ability to walk, stand, or push/pull. “Even though the
weight lifted may be very little, a job is in this category when it requires a good deal of
walking or standing, or when it involves sitting most of the time with some pushing and
pulling of arm or leg controls.” Id. In contrast, sedentary work is limited to “lifting no
more than 10 pounds at a time” with only occasional walking and standing. §

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404.1567(a). SSR 83-10p describes exertionally light work as follows:
Even though the weight lifted in a particular light job may be very little, a
job is in this category when it requires a good deal of walking or
standing—the primary difference between sedentary and most light jobs. A
job is also in this category when it involves sitting most of the time but with
some pushing and pulling of arm-hand or leg-foot controls, which require
greater exertion than in sedentary work.... Relatively few unskilled light
jobs are performed in a seated position. 1983 WL 31251, at *5 (January 1,
1983).
The ALJ found that Plaintiff had an RFC for “light work as defined in 20 C.F.R.
404.1567(b) in that she could occasionally lift/carry 20 pounds and frequently lift/carry
ten pounds, could stand/walk for two hours and could six for six hours” (Tr. 19). The
ALJ noted that the physical limitations in RFC were drawn from the non-examining
assessments of Drs. Harris and Thrush (Tr. 23 citing 532, 550).
The question of whether Plaintiff was limited to sedentary work is critical given
that under the “Grids,” an individual limited to exertionally sedentary, unskilled work
between the ages 50 to 55 (“closely approaching advanced age”) directs a disability
finding. 20 C.F.R. part 404, subpart P, App. 2, Rule 201.14. At first glance, the
restriction to standing/walking two hours a day would appear to limit Plaintiff to
sedentary work, despite her ability to lift up to 20 pounds. However, the ALJ did not err
in finding Plaintiff capable of light work. First, the VE’s testimony that the RFC for
standing/walking only two hours a day would allow for a significant range of light work
(the jobs of storage facility rental clerk, press operator, and sewing machine operator)
constitutes substantial evidence in support of the Step Five “light” work findings (Tr. 79-16-

80). See SSR 83-14, 1983 WL 31254, at *3 (January 1, 1983)(VE assistance “advisable”
in “situations where the rules would direct different conclusions, and the individual's
exertional limitations are somewhere ‘in the middle’ in terms of the . . . criteria for
exertional ranges of work”). Where a claimant’s RFC falls between the light and
sedentary categories, “[s]o long as the hypothetical is accurate, the administrative law
judge may rely on the vocational expert’s testimony to find that the plaintiff can perform
a significant number of jobs in the national economy. That is exactly what the
administrative law judge did, and we find no error in his approach.” Branon v.
Commissioner of Social Sec., 539 Fed.Appx. 675, 680 (6th Cir. October 2, 2013); See also
Clark v. Colvin, 2017 WL 169103, at *5 (M.D.Tenn. January 17, 2017); adopted, 2017
WL 1425523, at *1 (M.D.Tenn. April 21, 2017)(“Because the Plaintiff's RFC was
between [exertional] ranges of work, the ALJ appropriately . . . sought the assistance of a
VE).
Moreover, the VE testified as to why the job findings were categorized as light
rather than sedentary. She noted that while none of the three jobs required extensive
walking or standing, two of the three jobs required the use of foot controls. See SSR 8310 at *5 (light work also includes work involving “sitting most of the time but with some
pushing and pulling of arm-hand or leg-foot controls.” (Emphasis added). The VE
testified that the press operator position was performed in a seated position but required

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“the frequent use [of] hand . . . or foot controls”5 (Tr. 80). She noted further that the
position of storage facility rental clerk fell into the light range due to the lifting
requirements and the need to “occasionally . . . go to a unit and lock it out or unlock it for
someone” (Tr. 81).
Plaintiff’s argument that her “significantly reduced” ability to perform light work
directs a sedentary finding fails for the same reasons. See SSR 82-14 at *3. She cites
POMS 25015.006(E(1)(d), which states that a reduction in standing/walking to four hours
a day “significantly” erodes the exertionally light occupational base.6 Plaintiff’s Brief at
9. However, under § 404.1567(b), light work can be performed “sitting most of the time
with some pushing and pulling of arm or leg controls” in lieu of a “good deal of walking
or standing,” as more commonly required for light work. Two of the three positions cited
by the VE required the use of foot controls. Notably, neither of the non-examining
sources cited by the ALJ found limitation in pushing or pulling in any extremity (Tr. 532,
550). Because substantial evidence supports the finding that Plaintiff can perform jobs
allowing her to sit for 75 percent of the day with the use of foot petals, she is capable of

5

While the ALJ did not ask the VE to explain why the position of sewing machine
operator was classified as a light position, he was presumably aware that operating a
sewing machine requires the use of foot pedals.
6

POMS 25015.006(E(1)(d) does not include a statement that standing/walking four hours a
day significantly erodes the light occupational base. https://secure.ssa.gov/poms.nsf/lnx/
0425015006. (Last visited May 21, 2018). Nonetheless, I will consider Plaintiff’s argument
that a limitation to standing/walking four hours “significantly” reduces the number of light
jobs.
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exertionally light work as contemplated by the regulations.
Contrary to Plaintiff’s further argument, the ALJ sufficiently articulated his
reasons for finding that she was capable of a range of light rather than sedentary work
until September 1, 2014. He noted that an MRI of the lumbar spine showed only mild
degenerative disc disease (Tr. 21). He cited 2011 records showing negative neurological
findings, a normal gait, and the ability to toe and heel walk (Tr. 21, 24). The ALJ noted
that Plaintiff went “months at a time without examination or treatment” (Tr. 24). As
noted further below, the ALJ provided a rationale for partially discounting her allegations
of physical limitation.
As such, Plaintiff’s claim that she is essentially unable to perform most of the
requirements of light work or that the ALJ failed to provide an adequate rationale for the
RFC should be rejected.
B. The Use of a Medical Expert
Plaintiff argues second that the ALJ erred by failing to consult a medical expert to
determine whether her hand condition created significant work-related impairment before
September 1, 2014. Plaintiff’s Brief at 10-14.
SSR 83-20 governs the determination of an onset of disability date. 1983 WL
31249, at *3 (January 1, 1983). “In some cases, it may be possible, based on the medical
evidence to reasonably infer that the onset of a disabling impairment(s) occurred some
time prior to the date of the first recorded medical examination, e.g., the date the claimant

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stopped working. How long the disease may be determined to have existed at a disabling
level of severity depends on an informed judgment of the facts in the particular case.” Id.
The determination of the onset date, “must have a legitimate medical basis. At the
hearing, the [ALJ] should call on the services of a medical advisor when onset must be
inferred. If there is information in the file indicating that additional medical evidence
concerning onset is available, such evidence should be secured before inferences are
made.” Id.
However, the ALJ did not err in declining to consult a medical advisor in finding
that the hand condition did not become a severe impairment until September 1, 2014 (Tr.
25). He noted that none of the 2012 or 2013 records mentioned hand pain (Tr. 25). While
February, 2014 imaging studies showed moderate osteoarthritis of the thumb joint, the
ALJ noted that the records for this period show that she could still bathe, dress, groom
herself, prepare meals, drive, shop, and care for pets (Tr. 25). My own review of the
records shows that nerve conduction studies of the upper extremities performed on
September 16, 2014 show only “very mild to mild bilateral median neuropathy of the
bilateral wrists” (Tr. 748). None of the records shows the presence of reduced hand grip
until Dr. Gomez’s September 24, 2014 examination (Tr. 728). Because the ALJ’s
discussion and review of the medical evidence was well supported and explained, he did
not err in declining to consult a consultative medical expert. See McClanahan v. Comm'r
of Soc. Sec., 474 F.3d 830, 836-37 (6th Cir. 2006)(medical expert not necessary to

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augment the well supported findings regarding the onset date). Moreover, under 20
C.F.R. § 404.1512(a), a claimant must “‘furnish medical and other evidence that [the
SSA] can use to reach conclusions about her medical impairment(s) and ... its effect on
her ability to work on a sustained basis.’” Cranfield v. Commissioner, Social Security, 79
Fed.Appx. 852, 858, 2003 WL 22506409, *5 (6th Cir. November 3, 2003)(punctuation
omitted)(citing § 404.1512(a)); see also Landsaw v. Sec'y of Health & Human Servs.,
803 F.2d 211, 214 (6th Cir. 1986)(ALJ authorized but not required to order additional
testing “if the existing medical sources do not contain sufficient evidence to make a
determination”). Here, while the records show that Plaintiff may have reported
intermittent hand problems prior to September 1, 2014, nerve conduction testing showed
only very mild to mild abnormalities as of September 16, 2014. Notably, Plaintiff did not
provide an assessment documenting the degree of hand limitations prior to September 1,
2014. Because the existing evidence was sufficient to support the finding that the hand
condition was not severe until September 1, 2014, the ALJ was not obliged to seek expert
medical testimony.
C. The Credibility Determination
Finally, Plaintiff contends that her “stellar work history” ought to have been
acknowledged by the ALJ in making the credibility determination. Plaintiff’s Brief at 14-18.
The credibility determination, currently guided by SSR 96-7p, directs that a claimant's
allegations regarding “the intensity, persistence, or functionally limiting effects of pain or

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other symptoms are not substantiated by objective medical evidence,” the testimony must be
evaluated “based on a consideration of the entire case record.”7 1996 WL 374186 at *2 (July
2, 1996).

One of the factors to be considered is “[t]he consistency of the individual’s

statements with other information in the case record, including reports and observations by
other persons concerning the individual’s daily activities, behavior, and efforts to work.” SSR
96-7p at *6.
Plaintiff cites a long line of cases for the proposition that a claimant’s good work
history should be factored into the determination of whether she is credible. However, she
is short on the particulars of why her work history was “stellar” other than to state that she
reported work earnings for 117 out of 124 possible quarters since the age of 18. Plaintiff’s
Brief at 14-17. Moreover, the the ALJ acknowledged Plaintiff’s work history. He noted that
Plaintiff worked until 2010, but expressed the desire to leave work as early as 2008 (Tr. 23).
He noted that while Plaintiff claimed that she was terminated in 2010 due to her inability to
keep up with her work assignments, her testimony and reports to others suggested that she
was laid off as part of a reduction in force (Tr. 23). The ALJ’s summation of Plaintiff’s work
7

In March, 2016, SSR 16-3p superceded SSR 96-7p. The newer Ruling eliminates the
use of the term “credibility” from SSA policy. SSR 16-3p, 2016 WL 1119029, *1 (Mar. 16,
2016). The Ruling states that “subjective symptom evaluation is not an examination of an
individual’s character.” Instead, ALJs are directed to “more closely follow [the] regulatory
language regarding symptom evaluation.” See 20 C.F.R. § 404.1529(c)(3), fn 7, below.
Nonetheless, SSR 96-7p applies to the present determination, decided on July 31, 2015. See
Combs v. CSS, 459 F.3d 640, 642 (6th Cir. 2006)(accord 42 U.S.C. § 405(a))(The Social
Security Act “does not generally give the SSA the power to promulgate retroactive
regulations”).
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history is consistent with my own review of the record.
More generally, the ALJ’s determination that Plaintiff was capable of a range of
exertionally light work until September 1, 2014 is well supported by the treating,
consultative, and non-examining records. For example, treating records for the relevant
period show a normal gait, full muscle strength, and normal muscle tone (Tr. 446). Plaintiff
received exclusively conservative care for back pain (Tr. 377, 418, 607-609) and experienced
good results from foot surgery (Tr. 454-455). Because the ALJ’s credibility determination
is well supported and adequately explained, a remand on this basis is not warranted. See
Cruse v. CSS, 502 F.3d 532, 542 (6th Cir. 2007) (ALJ's credibility determination entitled to
deference); Anderson v. Bowen, 868 F.2d 921, 927 (7th Cir. 1989)(citing Imani v. Heckler,
797 F.2d 508, 512 (7th Cir. 1986))(An ALJ's “credibility determination must stand unless
‘patently wrong in view of the cold record’”).
I note in closing that my recommendation to uphold the finding that Plaintiff was not
disabled before September 1, 2014 should not be interpreted to wholly discount her claims
of some level of physical limitation before that date. However, because the ALJ’s
determination is supported by substantial evidence and is well within the “zone of choice”
accorded to the fact-finder at the administrative hearing level, it should not be disturbed by
this Court. Mullen v. Bowen, supra.

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VI. CONCLUSION
For these reasons, I recommend that Plaintiff’s Motion for Summary Judgment
[Docket #18] be DENIED.
Any objections to this Report and Recommendation must be filed within 14 days of
service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D. Mich. LR
72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of
appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v.
Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th
Cir. 1981). Filing of objections which raise some issues but fail to raise others with
specificity will not preserve all the objections a party might have to this Report and
Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v.
Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987).
Within 14 days of service of any objecting party’s timely filed objections, the
opposing party may file a response. The response shall be not more than 20 pages in length
unless by motion and order such page limit is extended by the court. The response shall
address specifically, and in the same order raised, each issue contained within
the objections.

Dated: June 5, 2018

s/R. Steven Whalen
R. STEVEN WHALEN
UNITED STATES MAGISTRATE JUDGE

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CERTIFICATE OF SERVICE
I hereby certify on June 5, 2018 that I electronically filed the foregoing paper with the
Clerk of the Court sending notification of such filing to all counsel registered electronically.
I hereby certify that a copy of this paper was mailed to non-registered ECF participants on
June 5, 2018.

s/Carolyn M. Ciesla
Case Manager for the
Honorable R. Steven Whalen

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