Burnette v. Commissioner of The Social Security Administration Michael J. Astrue

Filing 21

ORDER DISMISSING CASE. Signed by Judge Samuel H. Mays, Jr on 03/28/2017. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

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LAUREL DIANNE BURNETTE,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

No. 2:14-cv-02178-SHM

ORDER

Before the Court is Plaintiff Laurel Dianne Burnette’s appeal from a final decision of the Commissioner of Social Security

(“Commissioner”)

denying

Burnette’s

application

for

disability-insurance benefits under Title II of the Social Security Act (the “Act”), 42 U.S.C. § 401–34.

For the following

reasons, the Commissioner’s decision is AFFIRMED.
I.

BACKGROUND
On May 11, 2011, Burnette applied for disability-insurance

benefits under Title II of the Act.

(R. at P212.1)

Burnette al-

leged a “disabling condition” beginning on February 18, 2011.

1

References to “R.” are to the certified administrative record
in this case submitted by the Commissioner together with the
Commissioner’s Answer.
(See ECF Nos. 12-1, 12-2, 12-3.)
Page
references to record cites will use the ECF-assigned PageID for
the cited page, and will appear in the format “P___”.

(Id.)

The Social Security Administration (“SSA”) denied Bur-

nette’s application on initial review and on reconsideration.
(Id. at P143 (initial determination); id. at P144 (reconsideration).)
At Burnette’s request, an Administrative Law Judge (“ALJ”)
held a hearing about Burnette’s application on September 20,
2012.

(Id. at P105.)

On October 23, 2012, the ALJ issued a de-

cision denying Burnette’s benefits request.

(Id. at P89–P99.)

The ALJ found that Burnette was not disabled because she retained the residual functional capacity (“RFC”) to perform past
relevant work.

(See, e.g., id. at P99; see also Section II.B

infra (discussing sequential analysis).)

On January 14, 2014,

the SSA’s Appeals Council denied Burnette’s request for review.
(R. at P34.)

That denial made the ALJ’s decision the Commis-

sioner’s final decision.
Burnette

filed

(Compl., ECF No. 1.)

(Id.)

the

present

action

on

March

11,

2014.

The Commissioner answered Burnette’s com-

plaint on June 30, 2014.

(Answer, ECF No. 12.)

On July 1,

2014, the Court entered an Administrative Track Scheduling Order.

(ECF No. 13 (“Scheduling Order”).)

The order gave Bur-

nette thirty days to file “a brief in support of the asserted
claim,” and gave the Commissioner thirty days after that filing
to submit a response.
30, 2014.

(Id.)

Burnette filed her brief on July

(Mem. Br. in Supp. of Pl., ECF No. 14 (“Mem.”).)

2

The

Commissioner filed a response on September 2, 2014.
Supp. of Comm’r’s Decision, ECF No. 19 (“Resp.”).)

(Mem. in

Burnette did

not file a reply to the Response, and the deadline for doing so
has passed.
II.

(Scheduling Order 1.)

STANDARDS
A.

Standard of Review

Under 42 U.S.C. § 405(g), a claimant may obtain judicial
review of any final decision made by the Commissioner after a
hearing to which the claimant was a party.

“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], with or without remanding the cause
for a rehearing.”

42 U.S.C. § 405(g).

Review of the Commis-

sioner’s decision is limited to whether there is substantial evidence to support the decision and whether the Commissioner used
the proper legal criteria to make the decision.

Id.; Winn v.

Comm’r of Soc. Sec., 615 F. App’x 315, 320 (6th Cir. 2015); Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012).
“‘Substantial evidence is more than a scintilla of evidence but
less than a preponderance and is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’”

Bowman v. Comm’r of Soc. Sec., Case No. 16-6298, 2017

WL 1065553, at *3 (6th Cir. Mar. 21, 2017) (quoting McClanahan
v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006)).

3

In determining whether substantial evidence exists, the reviewing court must examine the evidence in the record as a whole
and must “‘take into account whatever in the record fairly detracts from its weight.’”

Conner v. Comm’r of Soc. Sec., 658 F.

App’x 248, 253 (6th Cir. 2016) (quoting Abbott v. Sullivan, 905
F.2d 918, 923 (6th Cir. 1990)).

If substantial evidence sup-

ports the Commissioner’s decision, the court must affirm that
decision and “may not ‘even inquire whether the record could
support a decision the other way.’”

Staymate v. Comm’r of Soc.

Sec., No. 16-3896, 2017 WL 902136, at *3 (6th Cir. Mar. 7, 2017)
(quoting Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994)).
The court may not try the case de novo or resolve conflicts
in the evidence.

Ulman, 693 F.3d at 713 (quoting Bass v. McMah-

on, 499 F.3d 506, 509 (6th Cir. 2007)).

The Commissioner, not

the court, is charged with the duty to weigh the evidence and to
resolve material conflicts in the testimony.

Vance v. Comm’r of

Soc. Sec., 260 F. App’x 801, 807, 808 (6th Cir. 2008) (citing
Bass, 499 F.3d at 509).
B.

The Five-Step Analysis

The Act defines “disability” as the “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to

4

last for a continuous period of not less than 12 months.”
U.S.C. § 423(d)(1).

42

Section 423(d)(2)(A) states:

An individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such
severity that he is not only unable to do
his previous work but cannot, considering
his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national
economy . . . .
Under the Act, the claimant bears the ultimate burden of
establishing an entitlement to benefits.

Oliver v. Comm’r of

Soc. Sec., 415 F. App’x 681, 682 (6th Cir. 2011) (citing 42
U.S.C. § 423(a); Wyatt v. Sec’y of Health & Human Servs., 974
F.2d 683 (6th Cir. 1992)).

The claimant has the initial burden

to prove she has a disability as defined by the Act.

Siebert v.

Comm’r of Soc. Sec., 105 F. App’x 744, 746 (6th Cir. 2004) (citing Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir.
1997)).

If she does so, the burden shifts to the Commissioner

to show that available employment exists that is compatible with
the claimant’s disability and background.

Nejat v. Comm’r of

Soc. Sec., 359 F. App’x 574, 576 (6th Cir. 2009) (quoting Jones
v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003)).
The Social Security Regulations (the “Regulations”) provide
a five-step “sequential analysis” governing entitlement to disability-insurance benefits.

20 C.F.R. § 404.1520(a)(4).

First,

the claimant must not be engaged in substantial gainful activi-

5

ty.

Id. § 404.1520(b).

Second, a finding must be made that the

claimant suffers from a severe impairment.

Id. § 404.1520(c).

Third, the ALJ must determine whether the impairment meets or
equals the severity criteria set forth in the Regulations’ Listing of Impairments.

Id. § 404.1520(d).

If the impairment sat-

isfies the criteria for a listed impairment, the claimant is
deemed disabled.

Fourth, if the claimant’s impairment does not

meet or equal a listed impairment, the ALJ must determine whether the claimant has the RFC to return to any past relevant work.
Id. § 404.1520(f).

If the claimant can return to past relevant

work, the claimant is deemed not disabled.

Id.

Fifth, if the

claimant is unable to perform past relevant work, the ALJ must
determine whether the claimant can perform other work existing
in

significant

§ 404.1520(g).

numbers

in

the

national

economy.

Id.

If at any point in the sequential analysis it is

determined that an individual is not disabled, further review is
unnecessary.

Id. § 404.1520(a)(4).

III. ANALYSIS
In her Memorandum, Burnette presents the following issues:
(1) “[w]hether the defendant’s [ALJ] had a legitimate basis upon
which to deny disability benefits or whether the [ALJ] was merely arbitrary and capricious and therefore abused his discretion”;

(2) “[w]hether

the

defendant

erred

by

the

denial

of

disability benefits to [Burnette] because of an error of law”;

6

and (3) “[w]hether the defendant erred by the denial of disability benefits to [Burnette] because the decision is not supported
by substantial evidence.”

(Mem. 2.)

These issue statements are vague.

It is Burnette’s respon-

sibility to point to the specific legal or factual errors in the
ALJ’s decision for the Court to review.2

The Memorandum con-

flates distinct issues, making it difficult to understand Burnette’s arguments.

Based on its review of the Memorandum, the

Court understands Burnette to present the following issues for
review:


Claim of Error 1: As a threshold matter, the ALJ
“erred when it was found that [Burnette] would
not be under a disability for twelve months or
more and that there is not substantial evidence
to support that position.” (Mem. 6.)



Claim of Error 2: At step three of the sequential
analysis, the ALJ erred by determining that Burnette’s impairments did not meet one or more of

2

Pages 8 through 12 of the Memorandum contain a section entitled
“Applicable Law.”
(Mem. 8.)
That section contains numerous
paragraphs discussing cases. It has no record citations or applications of law to the facts of this case. The Court cannot
and will not search this section to find applicable arguments.
United States v. Fowler, 819 F.3d 298, 309 (6th Cir. 2016)
(“‘Issues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.
It
is not sufficient for a party to mention a possible argument in
[a] skeletal way, leaving the court to put flesh on its
bones.’”) (quoting El-Moussa v. Holder, 569 F.3d 250, 257 (6th
Cir. 2009) (quoting McPherson v. Kelsey, 125 F.3d 989, 995–96
(6th Cir. 1997)) (alteration in McPherson). To the extent Burnette purports to make arguments in the “Applicable Law” section
that are not made elsewhere in the Memorandum, those arguments
are deemed waived.

7

the impairments in the Listing of Impairments.
(Id. at 7.)




Claim of Error 4: At step four of the sequential
analysis, the ALJ relied on evidence that was
“not competent” –– specifically, expert-witness
testimony from a “non examining physician.” (Id.
at 2.)



Claim of Error 5: At step four of the sequential
analysis, the ALJ inappropriately failed to give
controlling weight to the opinions of Burnette’s
treating physicians. (Id. at 3–5, 7.)



A.

Claim of Error 3: At step three of the sequential
analysis, the ALJ failed to consider Burnette’s
impairments in combination. (Id. at 3, 6–7.)

Claim of Error 6: At step four of the sequential
analysis, the ALJ failed to consider Burnette’s
testimony about disabling pain appropriately.
(Id. at 5–7.)

Claim of Error 1

Burnette states that the ALJ “erred when it was found that
[Burnette] would not be under a disability for twelve months or
more and that there is not substantial evidence to support that
position.”

(Id. at 6.)

The relevant definition of “disability”

is at 42 U.S.C. § 423(d)(1)(A).

Disability means “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.”

Burnette’s argument appears to be that, because the

ALJ did not address Burnette’s level of impairment 12 months in-

8

to the future, the ALJ could not conclude that Burnette did not
suffer from a § 423(d)(1)(A) disability.
not address this argument.

The Government does

(See generally Resp.)

To the extent Burnette makes a continuous-period argument,
that argument fails.
disabled

“from

The ALJ concluded that Burnette was not

February

18,

2011,

ALJ’s] decision” (October 23, 2012).

through

the

(R. at P99.)

date

of

[the

That conclu-

sion did not depend on § 423(d)(1)(A)’s continuous-period requirement.

It

depended

on

the

ALJ’s

determination

that,

throughout the stated period, Burnette had been able to engage
in substantial gainful activity notwithstanding her impairments.
As discussed below, substantial evidence supported the ALJ’s determination.

How an ALJ must apply the continuous-period re-

quirement is not material.
Claim of Error 1 in the Memorandum is DENIED.
B.

Claims of Error 2 and 3

Burnette states:
The [ALJ] and the defendant failed to evaluate the claimant’s symptoms under the Multiple Symptom Regulations.
The ALJ analyzed
each symptom individually, but failed to analyze the symptoms in combination.
The
Claimant’s symptoms clearly equal any one
impairment in the Listing of Impairments
even though singly each symptom does not
meet a listing.
Further, the [ALJ] failed
to note the deficits suffered by the Claimant as noted in the Listing of Impairments.

9

(Mem. 6 (emphases in original) (citation omitted).)3
This paragraph addresses step three of the sequential analysis, and combines two arguments.

The first is that the ALJ

considered Burnette’s symptoms individually, not in combination.
The second is that the ALJ did not consider whether Burnette’s
symptoms meet or equal the Listing of Impairments’ severity criteria.
The combined-symptoms argument fails.

The Sixth Circuit

has found an ALJ’s analysis of a claimant’s combined impairments
sufficient where the ALJ referred to a “combination of impairments” in deciding the claimant did not meet a listing, the ALJ

3

Burnette also states:
The problem is that the ALJ did not address
all of the symptoms in totality (together)
and thus did not look at the record as a
whole, but paid only lip service to the evidence. A claimant’s total medical condition
and history must be considered in combination and not fragmentized in deciding whether the claimant has sustained the burden of
proof, and the [ALJ] must give more than
“lip service” to the requirement that all
impairments be considered in combination.
The [ALJ] clearly gave only “lip service” to
the requirement that all impairments be considered in combination.
The [ALJ] thought
it sufficient to just mention that he looked
at all of the impairments. As noted above,
the 6th Circuit Court of Appeals has made it
clear that it is NOT sufficient to just
state that all impairments have been examined, but that some itemization must be
shown, otherwise it is just “lip service.”

(Mem. 3 (emphases in original) (citations omitted).)

10

referred to the claimant’s “impairments” as insufficiently severe to preclude performance of his past relevant work, the
ALJ’s decision was made after careful consideration of the entire record, and the ALJ’s decision discussed the claimant’s impairments

individually.

Gooch

v.

Sec’y

of

Health

&

Human

Servs., 833 F.2d 589, 591–92 (6th Cir. 1987); see also Simons v.
Barnhart, 114 F. App’x 727, 734 (6th Cir. 2004) (citing Gooch).
“To require a more elaborate articulation of the ALJ’s thought
process would not be reasonable.”

Gooch, 833 F.2d at 592.

The

Sixth Circuit has also found that the ALJ properly considered
the combined effects of a claimant’s impairments where the ALJ’s
decision

referred

to

the

claimant’s

“combination of impairments.”

“severe

impairments”

and

Loy v. Sec’y of Health & Human

Servs., 901 F.2d 1306, 1310 (6th Cir. 1990).
The ALJ in this case referred to his obligation to consider
all of Burnette’s impairments.

(R. at P90.)

He noted that, at

step three, he had to consider whether Burnette’s impairments
“or combination of impairments” met a listing.
id. at P92.)
Burnette’s

(Id.; see also

The step-three analysis specifically refers to

“combination

of

[Burnette’s] impairments.”

impairments”

and

(Id. at P92.)

the

“severity

of

The ALJ’s decision

demonstrates consideration of Burnette’s impairments in combination.

11

Burnette’s argument that the ALJ failed to consider the
Listing

of

Impairments

also

fails.

The

Government

responds

that, “[d]espite her burden to demonstrate that she meets or
equals a listing, [Burnette] makes no effort to name even a single listing she believes she meets.”

(Resp. 5.)

The Govern-

ment’s argument is well taken.
The Sixth Circuit has discussed an ALJ’s duties when a
claimant argues that her impairments meet a listing:
The relevant Social Security regulations require the ALJ to find a claimant disabled if
he meets a listing. Yet, neither the listings nor the Sixth Circuit require the ALJ
to “address every listing” or “to discuss
listings that the applicant clearly does not
meet.”
The ALJ should discuss the relevant
listing, however, where the record raises “a
substantial question as to whether [the
claimant] could qualify as disabled” under a
listing.
A claimant must do more than point to evidence on which the ALJ could have based his
finding to raise a “substantial question” as
to whether he has satisfied a listing.
Rather, the claimant must point to specific
evidence that demonstrates he reasonably
could meet or equal every requirement of the
listing. Absent such evidence, the ALJ does
not commit reversible error by failing to
evaluate a listing at Step Three.
Smith-Johnson v. Comm’r of Soc. Sec., 579 F. App’x 426, 432–33
(6th Cir. 2014) (citations omitted); see also Dew v. Comm’r of
Soc. Sec., No. 15-CV-12660, 2017 WL 744238, at *2 (E.D. Mich.

12

Feb. 27, 2017) (reciting similar standards and citing SmithJohnson).
Burnette points to no specific evidence showing that she
reasonably could meet or equal every requirement of a listing.
Indeed, Burnette does not state any particular listing that she
considers relevant.

She appears to invite the Court to search

the record and the Listings of Impairment for her.
the Court’s role.

That is not

Fowler, 819 F.3d at 309.

Claims of Error 2 and 3 in the Memorandum are DENIED.
C.

Claims of Error 4 and 5

Claims of Error 4 and 5 point to alleged errors in the
ALJ’s handling of medical evidence.

Claim of Error 4 is that,

during the fourth step of the sequential analysis,4 the ALJ relied on certain evidence that was “not competent.”

(Mem. 2.)

The evidence at issue is that of “an expert witness whose testimony was as a nonexamining physician,” with “physician” being
singular.

(Id. (emphasis in original) (citing R. at P97).)

4

Burnette states, “An attempt was made by the defendant ALJ to
discuss the evidence and use that evidence to show that [Burnette] is able to perform a light exertional job in the regional
economy[.]” (Mem. 2 (emphasis in original) (citing R. at P93).)
The “regional economy” reference suggests a dispute about the
ALJ’s handling of the fifth step of the sequential analysis.
The record is clear, however, that at P93 the ALJ was considering the fourth step of the sequential analysis (whether Burnette
had the RFC to return to past relevant work). (R. at P93–99.)
Because the ALJ determined that Burnette could perform past relevant work, the ALJ never reached the fifth-step question of
whether Burnette could perform alternative work.

13

It is unclear to whom Burnette is referring.
P97.)

(See R. at

At P97, the ALJ states that he “gave substantial weight

to the opinions of the State agency medical consultants,” with
“consultants” being plural.

(Id.)

The ALJ “concluded that the

opinions of the medical consultants should be afforded appropriate weight as highly qualified, non-examining medical sources.”
(Id.)

The consultants appear to be Dr. Victor O’Bryan and Dr.

Thomas Thrush.

(Id. at P96 (identifying Thrush as “state agency

medical reviewer”; id. at P97 (identifying O’Bryan as “state
agency reviewer”).)

The Court understands Burnette to refer to

O’Bryan and Thrush.

Burnette’s competence argument is apparent-

ly that the ALJ should not have considered the views of O’Bryan
and Thrush because they had “never seen the plaintiff and [had]
never spoken with the plaintiff’s physicians.”
That argument fails.

(Mem. 3–4, 7.)

The Commissioner’s regulations gov-

erning disability determinations instruct that, “[r]egardless of
its source, [the SSA] will evaluate every medical opinion [it]
receive[s].”

20 C.F.R. § 416.927(c).

and Thrush were medical opinions.

The reports of O’Bryan

(R. at P609–22 (assessment by

O’Bryan); id. at P623–32 (assessment by Thrush).)

That O’Bryan

and Thrush did not personally see Burnette does not make their
evidence “not competent.”
Claim of Error 5 contends that the ALJ gave too little
weight to the opinions of Burnette’s treating physicians.

14

Bur-

nette argues that the ALJ inappropriately relied on the opinions
of nonexamining doctors.

(Mem. 2–4.)

Burnette contends that

“the ALJ violated a basic premise of law that you cannot favor
the opinion of the one shot or non examining physicians over the
opinion of the treating physicians.”

(Id. at 4.)

Burnette also

states that the ALJ inappropriately “ignore[d]” the evaluations
of Burnette’s treating physicians:
[T]he ALJ ignores the residual functional
evaluation proffered by the treating physician of the claimant.
That finding is a
reach in and of itself.
The ALJ clearly
avoids and ignores the [treating-physician]
evaluations of Dr. [Ramesh] Gupta and Dr.
[Ying] Xu that the claimant cannot sit for
more than 2 hours a day or stand for a like
amount of time. That the claimant can maintain concentration and persistence during an
entire work day when she cannot sit for more
than 2 hours a day is just not believable
and is rampant speculation by the ALJ and
has no basis in fact or law, and cannot under any circumstance be implied by the facts
by the trier of fact.
That is reversible
error.
(Id. at 4–5 (emphasis in original) (citations omitted).)

The

Government

the

responds

that

“substantial

evidence

supports

ALJ’s rejection of [the] two treating physicians.”

(Resp. 9;

see also id. at 9–14.)
The Sixth Circuit has discussed the standards for assessing
medical evidence when making disability determinations:
As a general matter, an opinion from a medical source who has examined a claimant is
given more weight than that from a source

15

who has not performed an examination (a
“nonexamining source”), and an opinion from
a medical source who regularly treats the
claimant (a “treating source”) is afforded
more weight than that from a source who has
examined the claimant but does not have an
ongoing treatment relationship (a “nontreating source”).
In other words, “[t]he regulations provide progressively more rigorous
tests for weighing opinions as the ties between the source of the opinion and the individual become weaker.”
The source of the opinion therefore dictates
the process by which the Commissioner accords it weight.
Treating-source opinions
must be given “controlling weight” if two
conditions are met: (1) the opinion “is
well-supported by medically acceptable clinical and laboratory diagnostic techniques”;
and (2) the opinion “is not inconsistent
with the other substantial evidence in [the]
case record.”
If the Commissioner does not
give a treating-source opinion controlling
weight, then the opinion is weighed based on
the length, frequency, nature, and extent of
the treatment relationship, as well as the
treating source’s area of specialty and the
degree to which the opinion is consistent
with the record as a whole and is supported
by relevant evidence.
The Commissioner is required to provide
“good reasons” for discounting the weight
given to a treating-source opinion.
These
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.”
This procedural requirement “ensures that the ALJ applies
the
treating
physician
rule
and
permits meaningful review of the ALJ's application of the rule.”
On the other hand, opinions from nontreating
and nonexamining sources are never assessed
16

for “controlling weight.”
The Commissioner
instead weighs these opinions based on the
examining relationship (or lack thereof),
specialization, consistency, and supportability, but only if a treating-source opinion is not deemed controlling.
Other
factors “which tend to support or contradict
the opinion” may be considered in assessing
any type of medical opinion.
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375–76 (6th Cir.
2013) (citations omitted).
The ALJ did not give controlling weight to the opinions of
Xu or Gupta, deciding that, for the most part, they had “little
evidentiary weight.”

(R. at P98.)

The relevant discussion is

as follows:
After the hearing, claimant submitted additional medical records and two medical
source statements.
Claimant visited Dr.
Ying Xu . . . on May 1, 2012 . . . . Claimant was diagnosed with peripheral neuropathy, fibromyalgia, and chronic sinusitis.
In an accompanying medical assessment, Dr.
Xu indicated claimant had unspecified limitations of lifting and carrying; that she
could stand and walk a total of “0” (zero)
hours in an eight-hour day; no limitations
on sitting; never engage in postural activities; and had unspecified limitations on
reaching, handling, feeling, and push/pull.
[sic] Dr. Xu indicated claimant had no limitations in seeing and no environmental limitations.
He further indicated that the
limitations noted in the assessment began
“2008-2009[.]”
Claimant also submitted a medical source
statement signed by a Dr. Ramesh C. Gupta on
September 6, 2012.
Dr. Gupta indicated
claimant could occasionally lift 2-3 pounds;
stand/walk two hours in an eight-hour day;

17

sit two hours in an eight-hour day; never
engage in postural activities; that claimant
had unspecified limitations on reaching,
handling, push/pull, and seeing; that claimant had no limitations in feeling, speaking,
or hearing; that claimant had certain environmental limitations. [sic] Dr. Gupta indicated the limitations in his opinion began
in November 2010.
Dr. Xu’s opinion that claimant has no visual
limitations is accepted as consistent with
the record as a whole. However, the remainder of Dr. Xu’s opinion and Dr. Gupta’s
opinion are given little evidentiary weight.
Claimant testified that she continued to
work for the Girl Scouts as an administrative assistant until February 17, 2011. She
testified she had to lift up to 50 pounds in
her job and sit most of the day. The vocational expert testified the administrative
assistant job is normally performed at the
light level of exertion.
Claimant’s earnings reflect substantial gainful activity at
least though the first quarter of 2011. The
fact that claimant was able to continue in
her work as an administrative assistant
through the middle of February 2011, and by
her own testimony, lift up to 50 lbs and sit
most of the day, is sufficient grounds to
discount either opinion.
Dr. Xu’s opinion
is also discounted because his treatment
notes do not reflect the severity of the
limitations he assessed, and his opinion is
not consistent with the record as a whole.
Dr. Gupta’s opinion is further discounted
because it is not entirely clear that he had
recently examined claimant, and his opinion
is not consistent with the record as a
whole.
(Id. at P97–98 (citations omitted).)
The ALJ’s decision not to give the opinions of Gupta and Xu
controlling weight was appropriate only if (1) the doctors were

18

not

treating

sources,

or

(2)

their

opinions

were

not

well-

supported by medically acceptable clinical and laboratory diagnostic techniques, or were inconsistent with substantial record
evidence.

Gayheart, 710 F.3d at 375–76.

Xu was a treating source.

Burnette testified that Xu was

her primary-care physician and her “main doctor on [her] fibromyalgia and any other things that I have.”

(R. at P121.)

Bur-

nette also testified that she saw Xu “probably on a monthly
basis.”

(Id.)

The record is unclear how long Xu had been

treating Burnette, but the Commissioner does not dispute that Xu
is a treating source.

(See Resp. 11–13.)

The parties dispute whether Gupta was a treating source.
Under Sixth Circuit precedent, “[a] physician qualifies as a
treating source if there is an ‘ongoing treatment relationship’
such that the claimant sees the physician ‘with a frequency consistent with accepted medical practice for the type of treatment
and/or

evaluation

required

for

[the]

medical

condition.’”

Reeves v. Comm’r of Soc. Sec., 618 F. App’x 267, 273 (6th Cir.
2015) (quoting 20 C.F.R. § 404.1502) (alteration in Reeves).
Burnette testified that she saw Gupta “for [her] arthritis,” and that Gupta had written her prescriptions for handling
arthritis-related pain.

(R. at P122–23, P131.)

The record does

not establish how long Burnette had been seeing Dr. Gupta.
Commissioner

states

that

there

19

are

no

“treatment

notes

The
from

[Gupta] in the certified administrative record.”

(Resp. 13.)

The Commissioner also states that, “[i]n her brief before the
Court, [Burnette] does not directly cite any treatment records
from [Gupta].”

(Id.)

On this record, it is unclear whether Gupta is a treating
source.

The Court will assume without deciding that he is, be-

cause even if so, Gupta’s opinions do not merit controlling
weight.
The ALJ’s discussion of Gupta’s and Xu’s opinions does not
dispute that medically acceptable techniques support those opinions.

(R. at P97–98.)

For the ALJ to deny Gupta’s and Xu’s

opinions controlling weight, they had to be inconsistent with
substantial evidence in the record.

They were.

The ALJ was required to provide “good reasons” to discount
treating-source opinions.
testimony.

He relied on Burnette’s job-history

(R. at P98; see also id. at P116–17 (hearing testi-

mony about Burnette’s employment with Girl Scouts between 2004
and 2011).)

That testimony is substantial evidence of her abil-

ity to work during periods about which Gupta and Xu opined.
Bowman, 2017 WL 1065553, at *3 (evidence is “substantial” if it
is “such as a reasonable mind might accept as adequate to support a conclusion”).

Because Gupta’s and Xu’s opinions are in-

consistent with that substantial evidence, it was not improper
for the ALJ to deny those opinions controlling weight.

20

Notwithstanding his decision to deny Gupta’s and Xu’s opinions controlling weight, the ALJ had to weigh their opinions
based on the length, frequency, nature, and extent of the treatment relationship, as well as Gupta’s and Xu’s specialties and
the degree to which their opinions were consistent with the record as a whole and supported by relevant evidence.

20 C.F.R.

§ 404.1527(c).
The ALJ provided specific reasons for giving Gupta’s and
Xu’s opinions less weight than he gave to the opinions of the
state-agency medical reviewers.

Xu’s opinion was discounted be-

cause it was inconsistent with Burnette’s testimony and because
“his treatment notes do not reflect the severity of the limitations he assessed.”
pleted by Xu).)

(R. at P98; see also id. at P662 (form com-

Gupta’s opinion was discounted because it was

inconsistent with Burnette’s testimony and “because it [was] not
entirely clear that he had recently examined claimant.”

(R. at

P98; see also id. at P663–64 (form completed by Gupta).)
The ALJ did not avoid or ignore Gupta’s or Xu’s evaluations.

He discussed them and explained why he gave them little

weight.

There was substantial evidence supporting that deci-

sion: Gupta’s and Xu’s opinions conflicted with Burnette’s own
testimony.

Given that substantial evidence, the Court will not

second-guess the ALJ’s determination.
Claims of Error 4 and 5 in the Memorandum are DENIED.

21

D.

Claim of Error 6

The Memorandum contains the following passage addressing
evidence of pain:
A claimant need not establish the severity
of disabling pain by objective evidence.
The Secretary must give appropriate weight
to the lay testimony regarding pain if that
testimony is consistent with the medical evidence and may not reject a claim of disabling pain solely because the degree of pain
is not objectively established.
The ALJ
gave lip service to this requirement . . . ,
especially in regard to . . . neck and
shoulder pain.
An [ALJ] must give reasons for crediting or
rejecting a claimant’s testimony.
This
clearly was not done by the ALJ.
The ALJ
did not do so.
A claimant need not prove the exact cause of
a symptom particularly where the claimant’s
impairment is not fully understood.
In a
case like the instant case, pain[,] such as
the neck and shoulder pain of the claimant,
is not always understood. That is, however,
what the ALJ required the claimant to prove.
Clearly, there was no basis for the Defendant’s denial. Speculation, lip service, and
obfuscation are not valid bases.
(Mem. 5 (emphases in original) (citations omitted).)
This passage makes numerous arguments.
less.

Several are base-

The ALJ did not reject Burnette’s claim of disabling pain

“solely because the degree of pain [was] not objectively established.”

The ALJ determined, based on the relevant factors in

22

20 C.F.R. § 404.1529(c)(3),5 that Burnette’s “statements concerning the intensity, persistence, and limiting effects of [her
pain] are not credible to the extent they are inconsistent” with
the ALJ’s determination of Burnette’s RFC.

(R. at P95.)

The

ALJ did not require Burnette to “prove the exact cause” of her
pain, or to “establish the severity of disabling pain by objective evidence.”
The argument that the ALJ failed to give reasons for rejecting Burnette’s testimony is not well taken.

The Sixth Cir-

cuit has discussed the criteria for assessing pain evidence as
follows:
[T]here is a two-part test to evaluate a
claimant’s assertion of disability due to
pain.
A claimant must first establish an
underlying medical condition. Then, he must
establish either that objective medical evidence confirms the extent of the alleged
pain or that the objective medical evidence
could reasonably be expected to produce the
pain.
In evaluating claims of pain that
cannot be shown through objective medical
evidence, the ALJ is to “consider [a claimant’s] statements about the intensity, persistence, and limiting effects of [his]

5

Various amendments to 20 C.F.R. § 404.1529(c)(3) became effective on March 27, 2017.
See Revisions to Rules Regarding the
Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5844 (Jan.
18, 2017) (to be codified at 20 C.F.R. pts. 404, 416) (establishing amendments’ effective date).
Because the ALJ rendered
his decision before March 27, 2017, he used the earlier version
of § 404.1529(c)(3). The Court reviews the ALJ’s decision under
the prior version of the regulation.
Cf. Combs v. Comm’r of
Soc. Sec., 459 F.3d 640, 642 (6th Cir. 2006) (“The Act does not
generally give the SSA the power to promulgate retroactive regulations.”).

23

symptoms.”
“In determining the credibility
of the individual’s statements, the adjudicator must consider the entire case record,
including the objective medical evidence,
the individual’s own statements about symptoms, statements and other information provided by treating or examining physicians or
psychologists and other persons about the
symptoms and how they affect the individual,
and any other relevant evidence in the case
record.”
Massey v. Comm’r of Soc. Sec., 409 F. App’x 917, 921 (6th Cir.
2011) (citations omitted).
The ALJ agreed that Burnette’s “medically determinable impairments could reasonably be expected to cause” some pain, but
did not find credible her claim that her pain was disabling.
(R. at P95.)

Because Burnette’s claims of pain were not shown

“through objective medical evidence,” the ALJ was required to
consider Burnette’s statements about the pain and to make a
credibility determination.

That is what the ALJ did.

(See gen-

erally id. at P93–98.)
The ALJ’s discussion meets the Massey standards.

The ALJ

considered the objective medical evidence (id. at P95–98), Burnette’s statements about her symptoms (id. at P94–95), and medical experts’ statements about Burnette’s symptoms and how they
affected her (id. at P95–98).

Burnette points to nothing the

ALJ failed to consider as part of his credibility determination.
(See generally Mem.)

On this record, there is substantial evi-

24

dence to support the ALJ’s determination that Burnette’s pain
was not disabling.
Claim of Error 6 in the Memorandum is DENIED.
IV.

CONCLUSION
Each of the Claims of Error in the Burnette Memorandum is

DENIED.

The Commissioner’s determination that Burnette is not

disabled within the meaning of 42 U.S.C. § 423(d), because she
has the residual functional capacity to perform past relevant
work, is AFFIRMED.
So ordered this 28th day of March, 2017.

/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

25