                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 18a0563n.06

                                                 No. 18-5124

                              UNITED STATES COURT OF APPEALS
                                                                                                   FILED
                                   FOR THE SIXTH CIRCUIT                                    Nov 07, 2018
                                                                                        DEBORAH S. HUNT, Clerk
 REGINA AMBURGEY,
                       Plaintiff-Appellant,
                                                                        ON APPEAL FROM THE
 v.
                                                                        UNITED STATES DISTRICT
                                                                        COURT FOR THE EASTERN
 COMMISSIONER OF SOCIAL SECURITY,
                                                                        DISTRICT OF KENTUCKY
                      Defendant-Appellee.

BEFORE:          CLAY and GRIFFIN, Circuit Judges; ZOUHARY, District Judge.*

        CLAY, Circuit Judge. Regina Amburgey (“Plaintiff”) appeals the district court’s decision

affirming the final decision of the Commissioner of Social Security (“Commissioner”) denying

Plaintiff’s claim for Social Security Disability and Social Security Income benefits (together

“disability benefits”). For the reasons explained below, this Court will AFFIRM the district

court’s decision.

                                       STATEMENT OF FACTS

A. Factual and Procedural History

        1. The Administrative Law Judge (“ALJ”) Denies Plaintiff’s First Application for
           Disability Benefits

        Plaintiff filed an application for disability benefits on November 28, 2012. Plaintiff claimed

that she had been disabled since December 31, 2008.

        The ALJ denied Plaintiff’s application on August 26, 2013. The ALJ found that Plaintiff

had severe physical and psychological impairments but that she did not have a single impairment



        *
           The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by
designation.
No. 18-5136, Amburgey v. Comm’r of Soc. Sec.


or combination of impairments that qualified as a “listed impairment.” (See ECF No. 9-1 at PageID

#222–24.) The ALJ ruled that Plaintiff did not have the ability to perform “any past relevant

work.”1 (Id. at PageID #227.) But the ALJ found that Plaintiff was not disabled because she had

the residual functional capacity (“RFC”) to perform “sedentary work”2 subject to limitations to

accommodate her physical impairments. (See id. at PageID #224–25.) Specifically, the ALJ

determined that Plaintiff could:

        lift and carry ten pounds frequently and 20 pounds occasionally; stand and walk 30
        minutes at a time for a total of two hours in an eight hour day; sit for six hours in
        an eight hour day; occasionally push and pull with the right lower extremity and
        [the] right upper extremity; never crawl or climb ladders, ropes, or scaffolds;
        occasionally climb, stoop, kneel, or crouch; occasionally reach overhead with the
        right upper extremity; and should avoid exposure to [c]old, wet, humidity, or
        vibration. She is limited to simple, repetitive tasks in two-hour increments over a
        normal work schedule, and can interact appropriately with peers, supervisors, and
        the general public.

(Id.)

        Plaintiff did not appeal this decision.

        2. Plaintiff Files a Second Application for Disability Benefits

        Plaintiff filed a second application for disability benefits on November 5, 2013. As in her

previous application, Plaintiff claimed a disability beginning on December 31, 2008.3 The ALJ

found that res judicata precluded reconsideration of Plaintiff’s disability claim for the period



        1
         Despite concluding that Plaintiff lacked the ability to perform any past relevant work, the
ALJ failed to identify any jobs that Plaintiff had previously held.
        2
         “To determine the physical exertion requirements of work in the national economy, we
classify jobs as sedentary, light, medium, heavy, and very heavy.” 20 C.F.R. § 404.1567.
“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as
one which involves sitting, a certain amount of walking and standing is often necessary in carrying
out job duties. Jobs are sedentary if walking and standing are required occasionally and other
sedentary criteria are met.” Id. § 404.1567(a).
        3
            The same ALJ presided over Plaintiff’s second application.


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covered by Plaintiff’s first application, i.e., from December 31, 2008 to August 26, 2013, the date

the ALJ issued her denial. Therefore, the ALJ construed Plaintiff’s second application as claiming

a disability beginning on August 27, 2013, the day after the ALJ denied Plaintiff’s first application.

                 a.   Submitted Medical Evidence

        The ALJ reviewed numerous medical and psychological records from after the ruling on

Plaintiff’s previous application. The ALJ separately analyzed Plaintiff’s claims that she was

disabled because of (1) right foot pain; (2) knee pain; (3) shoulder problems; (4) neck problems;

(5) obesity; and (6) depression/anxiety. The Court will summarize the evidence that the ALJ

considered in evaluating each of Plaintiff’s alleged disabilities.

                       i.    Physical Problems

        Right Foot Pain. Plaintiff reported that she had severe right foot problems that limited her

ability to stand. But Morgan Eckerd, M.D.,4 and Dustin Johnson, M.D.,5 reported that Plaintiff

could stand on her tiptoes and heels, and tandem walk without problems. They also found that

Plaintiff could squat.6 Dr. Eckerd stated that Plaintiff walked with a “[n]ormal” gait. (ECF No. 9-

1 at PageID #860.) Dr. Johnson noted that Plaintiff had a “slightly labored” gait but reported that

she had a “normal posture.” (Id. at PageID #1129.) Dr. Johnson diagnosed Plaintiff with a mild

bone spur, but stated that Plaintiff had no other significant degenerative changes in her right foot.

While Plaintiff’s treating physician, Ira Potter, M.D., noted that Plaintiff experienced sensory loss

in her right foot with tenderness and loss of motion in her right toe, Dr. Potter reported that Plaintiff

could nonetheless stand without difficulty.



        4
            Dr. Eckerd performed a consultative examination of Plaintiff in December 2013.
        5
            Dr. Johnson performed a consultative examination of Plaintiff in May 2015.
        6
          Dr. Johnson reported that Plaintiff could squat with no difficulty, while Dr. Eckerd
reported that Plaintiff could squat with mild difficulty.


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        Chih Yen, D.P.M., evaluated Plaintiff for foot pain in May 2014. Dr. Yen reported that

Plaintiff had a limited range of motion in her ankles and diagnosed Plaintiff with metatarsalgia,

equinus contracture of the ankle, Tailor’s bunion, and rheumatoid arthritis. But Dr. Yen also noted

that Plaintiff had normal bilateral muscle strength. Moreover, an x-ray of Plaintiff’s right foot

showed an “old” and healed fracture, mild osteoarthritis, and a small bone spur, but did not show

evidence of an acute fracture or any destructive lesion or dislocation. (Id. at PageID #722.) Dr.

Yen reevaluated Plaintiff in July 2014 and noted that while Plaintiff still experienced a “very

limited” range of motion in her right ankle, she had improved by 20 percent since beginning

physical therapy. (Id. at PageID #889.) A follow-up x-ray in September 2014 revealed no changes

since May 2014.

        In her January 7, 2016 decision, the ALJ found that the medical evidence did not fully

support Plaintiff’s alleged limitations because of right foot pain. The ALJ stated that the

degenerative problems in Plaintiff’s right foot were “only mild” and not worsening. (Id. at PageID

#95.) The ALJ concluded that Plaintiff had “some limitations” in her ability to stand and walk but

retained the ability to perform a “reduced range of light exertional work activity and stand and

walk for two hours in a workday.” (Id. at PageID #95–96.)

        Knee Pain. Plaintiff also reported limitations because of knee pain. But Dr. Eckerd did not

report that Plaintiff suffered from knee problems when she evaluated Plaintiff in December 2013.

In fact, Dr. Eckerd reported that Plaintiff could rise from a sitting position, stand on her tiptoes

and heels, and tandem walk without problems. Dr. Eckerd also noted that Plaintiff did not display

muscle asymmetry, structural deformity, or swelling and that she could bend and squat with only

mild difficulty.




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        Plaintiff obtained an MRI of her right knee in June 2014. The MRI was “[n]egative” except

for an incidental finding of varicose veins. (Id. at PageID #868.) In June 2014, Dr. Potter reported

tenderness and mild loss of flexion in Plaintiff’s right knee but stated that she could stand without

difficulty. In October 2014, Steven Carawan, M.D., evaluated Plaintiff’s right knee and reported

pain with palpation and crepitus. But Dr. Carawan reported no swelling or locking of the joint, and

noted that Plaintiff had “[g]ood stability” in her knee. (Id. at PageID #1214.) Plaintiff obtained a

second MRI of her right knee in November 2014 which was “[n]egative.” (Id. at PageID #993.)

Dr. Potter evaluated Plaintiff’s right knee again in January 2015 and reported tenderness,

crepitation, and loss of flexion.

        Plaintiff began complaining of left knee pain in November 2014. Dr. Carawan diagnosed

chondromalacia in Plaintiff’s left knee, but an MRI revealed no meniscus tear. In December 2014,

Jayalakshimi Pampati, M.D., evaluated Plaintiff for rheumatoid arthritis. Dr. Pampati found no

evidence of rheumatoid arthritis and noted that Plaintiff experienced minimal joint tenderness with

crepitation on range of motion.

        Dr. Johnson performed a consultative examination of Plaintiff in May 2015. Dr. Johnson

reported that Plaintiff had a “slightly labored gait,” but noted that Plaintiff exhibited “5/5” bilateral

strength in her lower extremities, had a “normal” posture, could stand on her tiptoes and heels, and

tandem walk without problems, and did not use an ambulatory assistance device. (Id. at PageID

#1129–30.)

        The ALJ found that the medical evidence did not fully support Plaintiff’s asserted

limitations due to knee problems. The ALJ stated that Plaintiff experienced degenerative changes

in her knees but that there was no evidence of advanced degeneration. The ALJ concluded that




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No. 18-5136, Amburgey v. Comm’r of Soc. Sec.


despite her knee problems, Plaintiff could perform “a range of light exertional work activity.” (Id.

at PageID #96.)

        Shoulder Pain. Plaintiff had her right rotator cuff surgically repaired in 2008. In December

2013, Dr. Eckerd noted that Plaintiff had a reduced range of motion in her right shoulder. But Dr.

Eckerd reported that Plaintiff demonstrated a “5/5” bilateral grip strength with adequate dexterity

and fine motor movements, and that she could grasp objects with both hands. (Id. at PageID #860–

62.)

        Plaintiff began physical therapy on her shoulders in June 2014. In July 2014, a nurse

reported that Plaintiff could not raise either arm above shoulder level. In October 2014, Dr.

Carawan reported that Plaintiff had a decreased range of motion in her left shoulder and that she

could not raise her left arm over 90 degrees. Dr. Carawan also noted that Plaintiff reported left

shoulder pain during active and passive motion and had a positive impingement sign. However, in

November 2014, Dr. Carawan reported that Plaintiff had regained a full range of motion in both

shoulders. He noted, however, that Plaintiff experienced some pain with full elevation and internal

rotation.

         Plaintiff obtained imaging of her left shoulder in the fall of 2014. An x-ray taken on

October 14, 2014 indicated no fracture, dislocation, or acute osseous abnormality. But an MRI

taken on November 20, 2014 indicated a partial tear of the rotator cuff tendon and bursitis and

hypertrophy in the AC joint. However, Dr. Carawan reported that the MRI indicated “no

significant pathology to the rotator cuff.” (Id. at PageID #1204.)

        In March 2015, Dr. Carawan reported tenderness to palpation and a limited range of motion

in Plaintiff’s shoulders. In April 2015, Dr. Potter noted that Plaintiff had a mild decreased range

of motion and mild pain with motion in her right shoulder. In May 2015, Dr. Johnson again




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No. 18-5136, Amburgey v. Comm’r of Soc. Sec.


observed a decreased range of motion in Plaintiff’s shoulders. But Dr. Johnson reported that

Plaintiff demonstrated “5/5” strength in her upper extremities, did not experience motor

dysfunction, and displayed normal gross manipulation and grip strength in both hands. (Id. at

PageID #1131.)

        Plaintiff underwent surgery to repair her left shoulder in August 2015. At the post-

operation visit later that month, Plaintiff reported pain in her left shoulder but was told to

discontinue using a sling. It does not appear that there are any additional records about the

condition of Plaintiff’s left shoulder following her surgery.

        The ALJ concluded that the medical record did not fully support Plaintiff’s claimed

impairments due to shoulder problems. The ALJ found that while Plaintiff experienced continuing

problems with her shoulders, the evidence was inconclusive as to the extent of Plaintiff’s

limitations because some medical providers reported that Plaintiff had a reduced range of motion

while others stated that she merely experienced pain. The ALJ also noted that no evidence

indicated that Plaintiff had lost any strength in her upper extremities. The ALJ determined that

Plaintiff could perform tasks that entailed handling, fingering, and manipulation and “a range of

light exertional work activity” with limitations on climbing, reaching, and pushing and pulling.

(Id. at PageID #97–98.)

        Neck and Spine Problems. Dr. Carawan reported that Plaintiff experienced pain when

bending and when extending and rotating her cervical spine. Plaintiff obtained an MRI of her

cervical spine which indicated narrowing of the disc space in three vertebrae. But Dr. Johnson did

not report any issues with Plaintiff’s neck or spine when he performed his consultative

examination.




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No. 18-5136, Amburgey v. Comm’r of Soc. Sec.


        The ALJ found that the medical evidence did not fully support Plaintiff’s alleged

limitations due to neck and spine problems. The ALJ noted that Plaintiff has not seen a specialist,

received chiropractic treatment or injections, or undergone surgery. The ALJ concluded that

Plaintiff’s neck and spine issues would not prevent her from performing “a reduced range of light

exertional activity.” (Id. at PageID #98.)

        Obesity. Plaintiff is obese. Nonetheless, Dr. Johnson reported that Plaintiff did not use an

ambulatory assistance device, had normal posture and a slightly labored gait, and had no difficulty

getting onto and off of the examination table. Plaintiff considered bariatric treatment and was

approved for surgery but decided not to undergo surgery. While the doctor who authorized bariatric

surgery reported that exertion caused Plaintiff to experience mild shortness of breath, Plaintiff’s

pulmonary function test came back normal.

        The ALJ found that the medical evidence did not support Plaintiff’s claimed limitations

due to obesity. The ALJ further found that the restrictions imposed in the RFC sufficiently

accommodated for Plaintiff’s obesity.

                      ii.    Mental Health Problems

        Nathan Sainsbury, M.A., diagnosed Plaintiff with severe, recurrent major depressive

disorder and anxiety in 2013. Plaintiff saw Sainsbury regularly through July 2014. While

Sainsbury noted that Plaintiff experienced depression and anxiety throughout this period, he

consistently reported that Plaintiff did not report suicidal ideations and that her “mood and

psychomotor activities [are] within normal limits.”7 (See id. at PageID #771; id. at PageID #772;

id. at PageID #774; id. at PageID #812; id. at PageID #813; id. at PageID #816; id. at PageID




       On two occasions, Sainsbury reported that Plaintiff’s “mood was depressed” and that her
        7

psychomotor activities were “slow.” (See id. at PageID #821; id. at PageID #826.)


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No. 18-5136, Amburgey v. Comm’r of Soc. Sec.


#817; id. at PageID #818; id. at PageID #821; id. at PageID #823; id. at PageID #826; id. at PageID

#827; id. at PageID #829; id. at PageID #830; id. at PageID #831.)

        Suzette Trent, APRN, also treated Plaintiff. Plaintiff’s father passed away on January 1,

2014. In her notes from Plaintiff’s session two weeks later, Trent reported that Plaintiff had been

feeling less depressed since she started taking a new antidepressant but that after losing her father

she was more depressed than ever. But even in the months after her father’s death, Plaintiff’s mood

and psychomotor activities were within normal limits. Moreover, in a progress note from January

29, 2014, a mental health treatment provider rated Plaintiff’s depressed mood at a “4” and anxiety

at a “2” on a 10-point scale, with “0” indicating “no functional impairment” and “10” indicating

“severe functional impairment.” (Id. at PageID #846.) Further, Trent reported that Plaintiff’s mood

improved in the months after her father’s death. In April 2015, Trent reported that Plaintiff was

only “somewhat depressed.” (Id. at PageID #1182.) In September 2015, Trent indicated that

Plaintiff’s mood had again improved, albeit only “somewhat.” (Id. at PageID #1184.)

        Plaintiff’s Global Assessment of Functioning (“GAF”) scores8 steadily improved as her

treatment progressed. In November 2013, Plaintiff received a GAF score of 49. 9 Plaintiff was

assessed twice during the summer of 2014 and received GAF scores of 56 on both occasions.10 In




        8
          “A GAF score is a ‘subjective determination’ on a scale of 1 to 100 ‘that represents the
clinician’s judgment of the individual’s overall level of functioning.’” Bowman v. Comm’r of Soc.
Sec., 683 F. App’x 367, 369 n. 1 (6th Cir. 2017) (quoting DeBoard v. Comm’r of Soc. Sec., 211 F.
App’x. 411, 415 & n.1 (6th Cir. 2006)).
        9
         “‘A GAF of 41 to 50 means that the patient has serious symptoms . . . OR any serious
impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).’”
White v. Comm’r of Soc. Sec., 572 F.3d 272, 276 (6th Cir. 2009) (alteration in original) (quoting
Edwards v. Barnhart, 383 F. Supp. 2d 920, 924 n. 1 (E.D. Mich. 2005)).
         “A GAF rating of 51 to 60 signals the existence of moderate difficulty in social or
        10

occupational functioning.” Id. (quoting Barnhart, 383 F. Supp. 2d at 924 n. 1).


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No. 18-5136, Amburgey v. Comm’r of Soc. Sec.


December 2014 and April 2015, Plaintiff received GAF scores of 58. And in September 2015,

Plaintiff received a GAF score of 60.11

        Dr. Potter, Plaintiff’s primary-care physician, diagnosed Plaintiff with severe recurrent

anxiety and depression in June 2014. Dr. Potter also reported that Plaintiff suffered from decreased

affect and decreased short-term memory. However, Dr. Potter noted that Plaintiff did not exhibit

deficits in judgment or insight. Dr. Potter again reported that Plaintiff suffered from severe anxiety

and depression during visits in November 2014 and January 2015, but he noted that Plaintiff did

not exhibit hallucinations, delusions, or psychotic thoughts.

        Claude Dotson, Psy.D., diagnosed Plaintiff with anxiety and depression in May 2015. After

a follow-up appointment on September 28, 2015, Dotson again noted that Plaintiff was anxious

and irritable. However, Dotson wrote that while Plaintiff reported experiencing anxiety at a level

of “9.5” on a 10-point scale, she “did not have the appearance of being quite [that] anxious.” (Id.

at PageID #1597.)

        The ALJ found that Plaintiff suffers from depression and anxiety. But the ALJ concluded

that the medical evidence did not fully support Plaintiff’s alleged disability due to mental health

problems. The ALJ stated that the medical evidence indicated that Plaintiff’s mental health issues

improved with treatment and did not support Plaintiff’s claim that she suffered debilitating panic

attacks. The ALJ further stated that the RFC sufficiently accommodated Plaintiff’s psychological

limitations.




        11
          The ALJ did not explicitly reference Plaintiff’s GAF scores in the decision denying her
application. But the ALJ presumably considered Plaintiff’s GAF scores when rendering her
decision. Plaintiff’s GAF scores were contained in the treatment notes submitted by Sainsbury and
Trent that the ALJ discussed extensively in the decision.


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No. 18-5136, Amburgey v. Comm’r of Soc. Sec.


                b. The ALJ Denies Plaintiff’s Second Application

        Based on the medical evidence discussed above, the ALJ found that Plaintiff had the

following severe impairments: depression; anxiety; history of foot pain, status post bunionectomy

and excision of neuroma; history of knee pain; history of rotator cuff tear; obesity; cervical

osteophyte complex; partial tear of left rotator cuff; and chondromalacia of left knee. But the ALJ

found that none of these impairments individually or in combination equaled the severity of a listed

impairment. The ALJ further found that Plaintiff “is able to perform past relevant work in small

products assembly.” (Id. at PageID #102.) The ALJ also determined that Plaintiff could perform

“light work”12 subject to certain restrictions to accommodate Plaintiff’s limitations. (Id. at PageID

#93.)

        Despite determining that Plaintiff could perform relevant past work and light work, the

ALJ imposed nearly identical restrictions in Plaintiff’s RFC as in the decision denying Plaintiff’s

first application. Specifically, the ALJ found that:

        The claimant can lift and carry 20 pounds occasionally and 10 pounds frequently;
        can stand and walk for 30 minutes at a time and for two hours in an eight hour
        workday; can sit for six hours in an eight hour workday; can push and pull
        occasionally with the right lower extremity and the right upper extremity; can reach
        frequently with the left upper extremity in all directions; should not climb ropes,
        ladders, or scaffolds; occasionally can climb ramps and stairs; can occasionally
        stoop, kneel, and crouch; should have no concentrated exposure to coldness,
        wetness, humidity, or vibration; is limited to performing simple, routine tasks in
        two hour increments over the course of a normal 40 hour work schedule; and the
        claimant can interact appropriately with coworkers, supervisors, and the general
        public.


        12
           “Light work involves lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. 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. To be considered
capable of performing a full or wide range of light work, you must have the ability to do
substantially all of these activities. If someone can do light work, we determine that he or she can
also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time.” 20 C.F.R. § 404.1567(b).


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No. 18-5136, Amburgey v. Comm’r of Soc. Sec.


(Id. at PageID #93.) The only meaningful difference is that the ALJ imposed a reaching restriction

on Plaintiff’s left upper extremity not present in the RFC from the first decision.

                c. Plaintiff Appeals the Denial of Her Second Application

        Plaintiff appealed the ALJ’s decision to the Appeals Counsel, which denied her request for

review. Thus, the ALJ’s decision became the final decision of the Commissioner.

        Plaintiff subsequently filed a complaint in the district court. Plaintiff and the Commissioner

filed cross motions for summary judgment. The district court denied Plaintiff’s motion for

summary judgment, granted summary judgment for the Commissioner, and affirmed the ALJ’s

decision. This appeal followed.

                                               DISCUSSION

SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ’S FINDING THAT PLAINTIFF IS
NOT DISABLED

                                          Standard of Review

        “The court of appeals reviews the district court’s conclusion in social security cases de

novo, and directly reviews the [Commissioner’s] findings and conclusions as if it were the first

reviewing court.” Luukkonen v. Comm’r of Soc. Sec., 653 F. App’x 393, 398 (6th Cir. 2016)

(alteration in original) (quoting Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir. 1990)). “Appellate

review ‘is limited to determining whether the Commissioner’s decision is supported by substantial

evidence and was made pursuant to proper legal standards.’” Winn v. Comm’r of Soc. Sec., 615 F.

App’x 315, 320 (6th Cir. 2015) (quoting Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011)); see

42 U.S.C. § 405(g).

        “Under this standard, a reviewing court must affirm an ALJ’s order where it finds ‘such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Keeton

v. Comm’r of Soc. Sec., 583 F. App’x 515, 524 (6th Cir. 2014) (quoting Richardson v. Perales,



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No. 18-5136, Amburgey v. Comm’r of Soc. Sec.


402 U.S. 389, 401 (1971)). “‘When deciding . . . whether substantial evidence supports the ALJ’s

decision, we do not try the case de novo, resolve conflicts in evidence, or decide questions of

credibility.’” Luukkonen, 653 F. App’x at 398 (alteration in original) (quoting Bass v. McMahon,

499 F.3d 506, 509 (6th Cir. 2007)). Accordingly, “‘[e]ven if the evidence could also support

another conclusion, the decision of the [ALJ] must stand if the evidence could reasonably support

the conclusion [the ALJ] reached.’” Id. at 524 (second alteration in original) (quoting Her v.

Comm’r of Soc. Sec., 203 F.3d 388, 389–90 (6th Cir. 1999)); see Sullivan v. Comm’r of Soc. Sec.,

595 F. App’x 502, 506 (6th Cir. 2014) (quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d

284, 286 (6th Cir. 1994)) (“Indeed, ‘[i]f the [ALJ’s] decision is supported by substantial evidence,

it must be affirmed even if the reviewing court would decide the matter differently, and even if

substantial evidence also supports the opposite conclusion.’”) (alteration in original).

                                               Analysis

A. Relevant Legal Principles

        “Individuals may be eligible to receive disability insurance benefits from the Social

Security Administration if they meet certain eligibility requirements.” Winn, 615 F. App’x at 320.

One requirement is for the Commissioner to determine that the individual is “disabled.” Id.;

Keeton, 583 F. App’x at 524. “Under the Social Security Act, ‘disability’ is defined 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.’” Sorrell v. Comm’r of Soc. Sec., 656 F.

App’x 162, 169 (6th Cir. 2016) (quoting 42 U.S.C. § 423(d)(1)(A)).




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        “The Commissioner employs a ‘five-step sequential evaluation process’ to determine

whether a claimant is disabled.” Keeton, 583 F. App’x at 524 (quoting 20 C.F.R. § 404.1520(a)(1)).

Under this five-step process:

        First, plaintiff must demonstrate that she is not currently engaged in substantial
        gainful activity at the time she seeks disability benefits.

        Second, plaintiff must show that she suffers from a severe impairment in order to
        warrant a finding of disability. A severe impairment is one which significantly
        limits physical or mental ability to do basic work activities.

        Third, if plaintiff is not performing substantial gainful activity, has a severe
        impairment that is expected to last for at least twelve months, and the impairment
        meets a listed impairment, plaintiff is presumed to be disabled regardless of age,
        education or work experience.

        Fourth, if the plaintiff’s impairment does not prevent her from doing her past
        relevant work, plaintiff is not disabled.

        For the fifth and final step, even if the plaintiff’s impairment does prevent her from
        doing her past relevant work, if other work exists in the national economy that
        plaintiff can perform, plaintiff is not disabled.

Winn, 615 F. App’x at 320 (quoting Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007)). “The

review is terminated if the Commissioner makes a dispositive finding at any stage of this inquiry.”

Id. (citing Colvin, 475 F.3d at 730).

        “The claimant has the burden through the first four steps of either establishing a finding of

‘disabled’ or precluding a finding of ‘not disabled.’” Anderson v. Comm’r of Soc. Sec., 406 F.

App’x 32, 34–35 (6th Cir. 2010) (quoting Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990)).

The burden shifts to the Commissioner at step five. Anthony v. Astrue, 266 F. App’x 451, 457 (6th

Cir. 2008).

B. Application to the Matter at Hand

        Plaintiff contends that the ALJ’s decision denying her second application was not

supported by substantial evidence for four reasons. First, Plaintiff argues that the ALJ improperly



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revised Plaintiff’s RFC from sedentary work subject to restrictions (in the decision denying

Plaintiff’s first application) to light work subject to restrictions (in the decision denying Plaintiff’s

second application) without any evidence of medical improvement, in violation of Drummond v.

Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997). Second, Plaintiff asserts that the

ALJ impermissibly altered the finding from the first decision that Plaintiff lacked the RFC to

perform past relevant work, in violation of Dennard v. Secretary of Health & Human Services,

907 F.2d 598 (6th Cir. 1990). Third, Plaintiff claims that the ALJ inappropriately found that

Plaintiff could perform light work because the ALJ imposed restrictions on Plaintiff’s activities in

the RFC that fall below the minimum requirements for light work and, in essence, limit Plaintiff

to sedentary work. Finally, Plaintiff contends that the ALJ failed to adhere to the treating physician

rule in reaching the conclusion that Plaintiff is not disabled. The Court addresses these arguments

in turn.

           1. The ALJ’s Decision Did Not Violate Drummond Because Plaintiff’s Medical
              Circumstances Had Improved Since the Decision on Her First Application

           Plaintiff argues that the ALJ improperly revised Plaintiff’s RCF from sedentary work (in

the first decision) to light work (in the second decision) in violation of Drummond, 126 F.3d 837.

(Pl. Br. at 21–22.) The Court rejects Plaintiff’s argument. Contrary to Plaintiff’s contention,

Drummond does not apply here.

           In Drummond, the plaintiff applied for disability benefits. Id. at 838. The ALJ found that

the plaintiff had the RFC to perform sedentary work and denied the application. Id. Subsequently,

the plaintiff filed another application. Id. at 839. Between the time of the first and second ALJ

determinations, the plaintiff turned 50 and thus was classified as a “person approaching advanced

age.” Id. (quoting 20 C.F.R. § 404.1563(c)). This meant that the plaintiff would have been entitled

to disability benefits if the ALJ again found that the plaintiff was limited to sedentary work. Id.



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But the ALJ found that the plaintiff had the RFC to perform “medium” level work and denied the

plaintiff’s application. Id. This Court reversed. We explained that “[w]hen the Commissioner has

made a final decision concerning a claimant’s entitlement to benefits, the Commissioner is bound

by this determination absent changed circumstances.” Id. at 842 (emphasis added). As this Court

recently noted, the problem in Drummond was that “[n]othing had changed between the end of the

first application and the beginning of the second one—other than the advancement of one year in

the applicant’s age.” Earley v. Comm’r of Soc. Sec., 893 F.3d 929, 932 (6th Cir. 2018) (discussing

Drummond, 126 F.3d 837). The first and second ALJs reviewed the same medical evidence—

except for a single additional report indicating that the plaintiff’s “condition actually worsened”

since the decision on the plaintiff’s first application. Drummond, 126 F.3d at 843. Because the

plaintiff’s medical circumstances had not changed, the Commissioner was bound by the previous

finding that the plaintiff could only perform sedentary work. Id. Therefore, the second

determination that the plaintiff could perform medium work was “not supported by substantial

evidence.” Id.

        Drummond is inapposite. Whereas the ALJs in Drummond reached different conclusions

about the plaintiff’s RFC based on nearly identical evidence, in this case the ALJ’s second decision

relied on an extensive body of evidence collected after the decision denying Plaintiff’s first

application. Furthermore, unlike in Drummond, the evidence collected after the first decision

indicated that Plaintiff’s circumstances had improved.

        For instance, the first decision gave “significant weight” to Dr. Heather O’Donnell’s

January 2013 examination of Plaintiff. (R. 9-1 at PageID #226–27.) Dr. O’Donnell reported that

Plaintiff “was unable to squat, toe walk or heel walk,” that her “[t]andem walking was limited,”

and that she could “perform only activities involving sitting with hands positioned at table level.”




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No. 18-5136, Amburgey v. Comm’r of Soc. Sec.


(Id.; see id. at PageID #666–67.) Dr. O’Donnell’s report was the only objective evidence of

Plaintiff’s physical health that the ALJ cited in the first decision.

        By the time the ALJ reviewed Plaintiff’s second application in January 2016, Plaintiff had

seen several additional doctors who reported significant improvement in her physical condition.

Doctors Eckerd and Johnson reported that Plaintiff could stand on her tiptoes and heels, and

tandem walk without problems. They also agreed that Plaintiff could squat.13 Additionally, Dr.

Johnson reported that Plaintiff could stand from a sitting position without assistance. Dr. Potter,

Plaintiff’s treating physician, also reported that Plaintiff could stand without difficulty. The ALJ

cited these findings in the second decision.14

        In conclusion, the ALJ did not violate Drummond by revising Plaintiff’s RFC. Drummond

does not apply here because substantial evidence indicates that Plaintiff’s medical circumstances

had improved between the ALJ’s decisions on Plaintiff’s applications.

        2. The ALJ’s Decision Did Not Violate Dennard Because the ALJ Did Not Reclassify
           the Exertional Demands of Plaintiff’s Past Relevant Employment

        Next, Plaintiff asserts that the ALJ impermissibly altered the finding from the first decision

that Plaintiff lacked the ability to perform past relevant work, in violation of Dennard, 907 F.2d



        13
          Dr. Johnson stated that Plaintiff could squat with no difficulty, while Dr. Eckerd reported
that Plaintiff could squat with mild difficulty.
        14
           While the ALJ’s second decision examined the extensive evidence collected after the
ALJ denied Plaintiff’s first application, the second decision does not explicitly state how Plaintiff’s
medical condition improved from the time her first application was denied. This is presumably
explained by the fact that the ALJ “concluded that the period under consideration for disability [in
Plaintiff’s second application] began on August 27, 2013, the day after the prior decision.” (See
R.9-1 at PageID #88.) Still, the second decision would have benefitted from an explicit discussion,
similar to that provided by the Court above, about how Plaintiff’s medical circumstances had
changed since the ALJ denied Plaintiff’s first application. However, the Court does not believe
that the ALJ’s failure to explicitly reference Plaintiff’s original medical circumstances invalidates
the ALJ’s decision because substantial medical evidence collected after the ALJ’s first decision
indicated that Plaintiff’s medical circumstances had improved. See Drummond, 126 F.3d at 843.


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No. 18-5136, Amburgey v. Comm’r of Soc. Sec.


598. (Pl. Br. at 22–23.) The Court rejects this contention. As explained below, Dennard does not

apply here.

        In Dennard, an ALJ concluded that the plaintiff could not perform his past relevant work

as a resident care supervisor, which the ALJ characterized as “heavy.” Id. at 600. But the ALJ

denied the plaintiff’s application nonetheless because he found that the plaintiff had the ability to

perform sedentary work and therefore was not disabled. Id. at 599. The plaintiff filed a second

disability claim. Id. The ALJs who reviewed the second claim re-characterized the exertional level

of the plaintiff’s past relevant work as a resident care supervisor as “sedentary to light” and

concluded that the plaintiff was not disabled because he could perform this past relevant work. Id.

This Court reversed, finding that subsequent ALJs could not re-characterize the exertional

requirements of the plaintiff’s previous position. Id.; see Kolomjec v. Sec’y of Health & Human

Servs., 940 F.2d 660 (6th Cir. 1991) (table) (citing Dennard, 907 F.2d at 600) (“In Dennard, this

court held that a prior determination by the Secretary regarding the exertional level of a claimant’s

past work was binding in subsequent proceedings.”); Senters v. Sec’y of Health & Human Servs.,

960 F.2d 150 (6th Cir. 1992) (table) (citing Dennard, 907 F.2d at 600) (explaining that in Dennard

this Court held that “principles of res judicata and collateral estoppel prevented the Secretary from

reevaluating the exertional level of plaintiff’s former job.”).

        Dennard is inapposite. Unlike the ALJs in Dennard, the ALJ here did not re-characterize

the exertional level of Plaintiff’s prior relevant work. In fact, the decision denying Plaintiff’s first

application did not provide an exertional level of Plaintiff’s past relevant work or state what past

relevant work experience Plaintiff possessed; it stated only that Plaintiff “is unable to perform any

past relevant work.” (R. 9-1 at PageID #227.) Thus, the ALJ’s conclusion that Plaintiff is able to




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No. 18-5136, Amburgey v. Comm’r of Soc. Sec.


perform past relevant work in small products assembly is not inconsistent with the ALJ’s first

decision. Accordingly, Dennard does not apply.15

        3. Plaintiff’s Ability to Perform Light Work Is Not Central to the Question of
           Whether Plaintiff Is Disabled Because the ALJ Determined that Plaintiff Could
           Perform Her Past Relevant Work and Alternative Sedentary Jobs

        Plaintiff contends that substantial evidence does not support the ALJ’s determination that

she could perform light work because her RFC contains limitations that fall below the exertional

requirements for light work and, in essence, limit her to sedentary work. (Pl. Br. at 23–24.) But

whether Plaintiff is capable of performing light work is not central to the question of whether she

is disabled. The ALJ determined that, based on her limitations, Plaintiff could perform her past

relevant work and other sedentary jobs. Plaintiff is not disabled due to a physical disability if

substantial evidence supports either one of these findings. See 20 C.F.R. § 404.1560; 20 C.F.R.,

Pt. 404, Subpt. P, App. 2. In that case, the ALJ’s finding that Plaintiff could perform light work,

even if not supported by substantial evidence, would constitute “harmless error” and would not

warrant reversal. See, e.g., Keeton, 583 F. App’x at 524 (internal citation omitted) (explaining that




        15
           Plaintiff states that she is “bewildered” that “the same ALJ could impose res judicata on
her earlier findings and then freely alter important elements to the detriment of the [Plaintiff].” (Pl.
Br. at 23.) This argument has three fatal flaws. First, Plaintiff mischaracterizes the ALJ’s
invocation of res judicata. As explained above, the ALJ applied res judicata to preclude review of
Plaintiff’s disability for the period of time already considered by the previous decision. Contrary
to Plaintiff’s insinuation, the ALJ did not invoke res judicata to preclude Plaintiff from proving
that Plaintiff became disabled after the period covered by the ALJ’s first decision. Second, Plaintiff
fails to recognize that the ALJ did not “alter” anything about the first decision; the ALJ conducted
a de novo review of the time period covered by the second application and found that Plaintiff
failed to meet the definition of “disabled.” This distinguishes the ALJ’s conduct here from the
impermissible action taken by the ALJs in Dennard. Third, if the Court were to accept Plaintiff’s
argument, an ALJ reviewing a subsequent application would be precluded from reconsidering
findings made by an ALJ in a previous decision, even if the applicant’s medical circumstances
changed between the first and second rulings. The Court declines Plaintiff’s invitation to prevent
ALJs from considering a claimant’s changed medical circumstances when ruling on a subsequent
application for disability benefits.


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No. 18-5136, Amburgey v. Comm’r of Soc. Sec.


“even where the ALJ’s decision is based on mistakes, this Court affirms those conclusions if the

mistakes constituted harmless error.”).

                a. Plaintiff Is Not Disabled Due if She Can Perform Past Relevant Work

        At step four, the ALJ concluded that Plaintiff’s impairments did not prevent her from

performing her past relevant work in small products assembly. If Plaintiff can perform past

relevant work she is, by definition, not disabled. 20 C.F.R. § 404.1560(b)(3) (“If we find that you

have the residual functional capacity to do your past relevant work, we will determine that you can

still do your past work and are not disabled.”); see Winn, 615 F. App’x at 320 (quoting Colvin, 475

F.3d at 730) (“[I]f the plaintiff’s impairment does not prevent her from doing her past relevant

work, plaintiff is not disabled”); Rothacher v. Chater, 121 F.3d 709 (6th Cir. 1997) (table) (citing

20 C.F.R. § 404.1520(3)) (explaining that an “individual capable of performing past relevant work

is not disabled”). Therefore, if substantial evidence supports the ALJ’s determination that Plaintiff

has the RFC to perform her past relevant work in small products assembly, Plaintiff is not disabled

on account of a physical disability.

                b. Plaintiff is Not Disabled if She Can Perform Alternative Sedentary Jobs

        At step five, the ALJ concluded that Plaintiff has the RFC to perform the following jobs

identified by the vocational expert: (1) light or sedentary monitor; (2) sedentary bench assembly,

and (3) sedentary inspecting. Plaintiff does not dispute the vocational expert’s testimony that these

jobs exist in the national economy. These jobs are all classified as sedentary. Because Plaintiff is

under 50 years old and has a high school education (see Pl. Br. at iv), Plaintiff is not disabled if

she can perform sedentary work. See 20 C.F.R., Pt. 404, Subpt. P, App. 2. Accordingly, Plaintiff

is not disabled due to a physical disability if substantial evidence supports the ALJ’s finding that

Plaintiff has the RFC to perform the sedentary jobs identified by the vocational expert.




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No. 18-5136, Amburgey v. Comm’r of Soc. Sec.


        4. Substantial Evidence Supports the ALJ’s Conclusion that Plaintiff Can Perform
           Her Past Relevant Work and Alternative Sedentary Jobs

        Substantial evidence supports the ALJ’s conclusion that Plaintiff can perform her past

relevant work in small parts assembly. The ALJ cites to the testimony of a vocational expert who

stated that, given Plaintiff’s RFC, Plaintiff has the capability to perform her previous job in small

products assembly.16 Plaintiff has not cited to any evidence to rebut the vocational expert’s

opinion. Further, the medical evidence regarding Plaintiff’s physical capabilities supports the

ALJ’s finding. Plaintiff testified that her position in small products assembly required her to “just

sit there . . . all the parts w[ere] right there, so I had to just lift [the parts] from the table and put

[them] together.” (R. 9-1 at PageID #151.) Plaintiff has not identified any medical evidence that

would suggest that she would struggle performing these tasks. Moreover, Plaintiff exhibited



        16
           During the hearing, the ALJ asked the vocational expert:
       Let me give you some hypothetical questions, please, and for [the] purposes of all
       [of] my hypothetical questions today I’d like to ask you to assume that we are
       discussing a worker between 42 and soon to be 46 years old, who is a high school
       graduate, and who has the employment history consistent with her testimony. And
       for the first hypothetical I’d like to ask you to assume that this worker can lift or
       carry 10 [pounds] on a frequent basis, 20 pounds on an occasional basis. Please
       assume that she can stand or walk 30 minutes at a time, for a total of two hour[s]
       through the course of an eight hour work day, sit for a total of six hours through the
       course of an eight hour work day. She can perform push/pull activities with both
       her left and right upper extremity on an occasional basis. She should never be
       expected to climb a rope, ladder, or scaffold. She can climb stairs, stoop, crouch,
       and crawl on an occasional basis. She can reach overhead bilaterally, but on an
       occasional basis only. She m[u]st avoid concentrated exposure to cold, wetness,
       humidity and vibrations. Please further assume that she’s restricted to simple,
       routine, tasks [INAUDIBLE] schedule. She can interact appropriately, however,
       with coworkers and supervisors. And with those limitations in your professional
       opinion, Ms. Hale [phonetic]?
(R. 9-1 at PageID #152–53.) In response, the vocational expert stated that “[t]he small
products assembly [job] would comply with that.” (Id. at PageID #153.) The Court also
notes that the vocational expert testified that based on Plaintiff’s RFC, she could not
perform other past relevant work, such as operating a welding machine or working as an
inspector.


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No. 18-5136, Amburgey v. Comm’r of Soc. Sec.


normal grip strength in both hands and adequate dexterity and fine motor movements. And, as the

ALJ noted, no medical evidence indicates that Plaintiff had lost any strength in her upper

extremities. Therefore, the Court finds that substantial evidence supports the ALJ’s conclusion that

Plaintiff has the RFC to perform her past relevant work in small products assembly.

        Substantial evidence also supports the ALJ’s conclusion that Plaintiff can perform other

sedentary jobs. The vocational expert testified that Plaintiff could perform three unskilled jobs at

the sedentary level: surveillance monitor, sedentary or bench assembly, and sedentary inspecting.

The medical evidence supports the ALJ’s conclusion that Plaintiff could complete these jobs

despite her limitations. Furthermore, Plaintiff does not argue that she lacks the RFC to complete

any of these jobs. Accordingly, the Court finds that substantial evidence supports the ALJ’s finding

that Plaintiff has the RFC to perform these alternative sedentary jobs.

        In sum, substantial evidence supports the ALJ’s conclusion that Plaintiff’s physical

limitations do not prevent her from performing past relevant work or alternative sedentary jobs.

Accordingly, Plaintiff is not disabled due to a physical disability.

        5. Substantial Evidence Supports the ALJ’s Determination that Plaintiff is Not
           Disabled Due to Mental Health Problems

        Substantial evidence supports the ALJ’s conclusion that Plaintiff is not disabled due to

mental health problems. Sainsbury, a clinician who treated Plaintiff over an extended period of

time, consistently reported that her mood and psychomotor activities were within normal limits.

While Plaintiff was severely depressed after her father passed away in January 2014, her mood

and psychomotor activities remained within normal limits and a progress note from later that

month rated Plaintiff’s depressed mood at “4” and anxiety at a “2” on a 10-point scale, which did

not indicate a severe functional impairment. (Id. at PageID #847.) Furthermore, in April 2015,

Trent reported that Plaintiff was only “somewhat depressed,” (id. at PageID #1182), and Trent



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No. 18-5136, Amburgey v. Comm’r of Soc. Sec.


reported in September 2015 that Plaintiff’s mood had again improved. Accordingly, as the ALJ

noted, Plaintiff’s anxiety and depression improved significantly with treatment and medication.

Furthermore, no evidence indicates that she experienced more severe symptoms, such as

hallucinations, delusions, or suicidal ideations. Finally, Plaintiff has not pointed to any opinion

from any of her mental health providers that she was disabled on account of her mental health

problems. Therefore, the Court finds that substantial evidence supports the ALJ’s conclusion that

Plaintiff’s mental health problems did not render her disabled.

         Plaintiff makes three arguments for why substantial evidence does not support the ALJ’s

conclusion that she is not disabled due to mental health problems. (See Pl. Br. at 27–28.) All lack

merit.

         Plaintiff first argues that the ALJ failed to consider the opinions of Dr. Leigh A. Ford,

whose opinions to which the ALJ gave “significant weight” in denying Plaintiff’s first application.

(Pl. Br. at 26.) But Dr. Ford examined Plaintiff before the ALJ decided Plaintiff’s first application,

i.e., before the time period covered by the ALJ’s most recent decision. The Court rejects Plaintiff’s

contention that the ALJ was required to consider the opinions of a physician who only treated

Plaintiff prior to the time period at issue in her current application.

         Plaintiff next asserts that the ALJ failed to mention the mental health treatment records

from Kentucky River Community Care. Plaintiff is simply wrong. The ALJ discussed in detail the

treatment notes submitted by Sainsbury and Trent, clinicians from Kentucky River Community

Care who treated Plaintiff with ongoing psychotherapy.

         Lastly, Plaintiff contends that the ALJ improperly gave “great weight” to Edward Stodola,

Ph.D., a state agency mental health consultant who adopted the findings in the ALJ’s previous

decision that Plaintiff was not disabled due to mental health impairments. The Court finds no error




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No. 18-5136, Amburgey v. Comm’r of Soc. Sec.


in the ALJ’s approach. The ALJ did not rely exclusively on Dr. Stodola’s assessment; the ALJ

provided an in-depth analysis of Plaintiff’s ongoing psychotherapy with Sainsbury and Trent, and

also discussed Plaintiff’s treatment with Dr. Potter. Further, while Dr. Stodola provided his opinion

in April 2014, Dr. Stodola reviewed extensive medical records submitted after the decision on

Plaintiff’s first application and concluded that her mental health problems had not worsened.

Finally, Plaintiff points to no evidence to support her assertion that her anxiety or depression

became more severe since the ALJ’s previous decision.

        6. Plaintiff’s Remaining Arguments Lack Merit

        Plaintiff presents several additional arguments for why the ALJ’s decision was not

supported by substantial evidence. All are non-starters.

                a. Treating Physician Rule

        Plaintiff argues that the ALJ failed to give adequate weight to the “findings, records, and

assessments” provided by Dr. Potter, Plaintiff’s treating physician. (Pl. Br. at 29–30.) Plaintiff does

not specify which of Dr. Potter’s opinions the ALJ failed to adequately credit. However, it seems

likely that Plaintiff objects to the ALJ’s discounting of Dr. Potter’s April 2015 questionnaire in

which Dr. Potter stated that Plaintiff’s physical limitations completely disabled her from engaging

in substantial gainful employment. In response, the Commissioner contends that the ALJ

reasonably discounted Dr. Potter’s opinions because they were unsupported by objective medical

evidence and inconsistent with the rest of Plaintiff’s medical record. (D. Br. at 23–27.)

        “Under the treating physician rule, an ALJ must give controlling weight to the opinion of

a claimant’s treating physician if it ‘is well-supported by medically acceptable clinical and

laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the

claimant’s] case record . . . .’” Winn, 615 F. App’x at 321 (alterations in original) (quoting (20




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No. 18-5136, Amburgey v. Comm’r of Soc. Sec.


C.F.R. § 404.1527(c)(2)). As this Court has explained, “the term ‘not inconsistent’ is meant to

convey that ‘a well-supported treating source medical opinion need not be supported directly by

all of the other evidence (i.e., it does not have to be consistent with all the other evidence) as long

as there is no other substantial evidence in the case record that contradicts or conflicts with the

opinion.’” Id. (quoting Soc. Sec. Ruling 96–2P, 1996 WL 374188 at *3 (July 2, 1996)).

        “If the Commissioner determines that it will not give controlling weight to the opinion of

a treating physician, it must provide ‘good reasons’ for its decision.” Monateri v. Comm’r of Soc.

Sec., 436 F. App’x 434, 440 (6th Cir. 2011) (quoting 20 C.F.R. § 404.1527(d)(2)). An ALJ’s

“failure to follow the procedural requirement of identifying the reasons for discounting [a treating

physician’s] opinions and for explaining precisely how those reasons affected the weight accorded

the opinions denotes a lack of substantial evidence, even where the conclusion of the ALJ may be

justified based upon the record.” Id. (quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 243

(6th Cir. 2007)).

        The Court finds that the ALJ did not violate the treating physician rule. Several of Dr.

Potter’s opinions were contradicted by, or inconsistent with, substantial evidence in Plaintiff’s

medical record—including some of his own previous findings. Further, the ALJ provided “good

reasons” for discounting Dr. Potter’s opinions and explained how those reasons affected the weight

given to his opinions.

        Dr. Potter’s opinions about Plaintiff’s lifting, standing, and walking abilities were

contradicted by substantial evidence in Plaintiff’s medical record. For example, Dr. Potter’s

assessment that Plaintiff could occasionally lift ten pounds and frequently lift only less than ten

pounds conflicted with Dr. Johnson’s report that Plaintiff had “5/5” strength in her upper

extremities and could continuously lift up to 100 pounds. (See R. 9-1 at PageID #1131–32.)




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No. 18-5136, Amburgey v. Comm’r of Soc. Sec.


Similarly, Dr. Potter’s conclusion that Plaintiff could stand or walk for only two hours in an eight-

hour workday contradicted the evidence from Dr. Eckerd and Dr. Johnson that Plaintiff could stand

on her tiptoes and heels, tandem walk without problems, and had a normal or only “slightly”

labored gait. (See id. at PageID #860; id. at PageID #1130.) In fact, Dr. Potter’s assessment

contradicted his own previous findings; a few months earlier, he reported that Plaintiff could “stand

without difficulty.” (Id. at PageID #948; id. at PageID #951.) Further, while Plaintiff experienced

tenderness, loss of flexion, and crepitus in her knees, MRIs of Plaintiff’s right knee were negative,

an MRI of Plaintiff’s left knee revealed no meniscus tear, and Dr. Johnson reported that Plaintiff

had a normal posture and “5/5” bilateral strength in her lower extremities. (Id. at PageID #1129–

30.) The ALJ noted that Dr. Potter’s opinions about Plaintiff’s lifting, standing, and walking

abilities contradicted the evidence in Plaintiff’s medical record and explained that she accordingly

gave “little weight” to those opinions.17 (Id. at PageID #99.)

        Similarly, Dr. Potter’s opinion that Plaintiff could not sit for six hours in an eight-hour

workday was contradicted by substantial evidence in Plaintiff’s medical record. Dr. Johnson

concluded that Plaintiff could perform activities involving sitting for eight hours. In fact, as the

ALJ noted, no other evidence in Plaintiff’s medical record indicated that Plaintiff had problems

sitting. The ALJ explained that she gave Dr. Potter’s opinion “little weight” because it was

inconsistent with the rest of the medical evidence. (See id. at PageID #99.)

        Finally, Dr. Potter reported that Plaintiff had a “moderate degree” of impairment pushing

and pulling with upper and lower extremities, that Plaintiff should never climb ramps, stairs,


        17
          Despite giving “little weight” to Dr. Potter’s opinions about Plaintiff’s lifting, standing,
and walking abilities, the ALJ imposed restrictions on Plaintiff’s lifting, standing, and walking that
largely mirrored Dr. Potter’s suggested restrictions. The ALJ found that Plaintiff could lift ten
pounds frequently and twenty pounds occasionally, which was only ten pounds higher than the
limitations recommended by Dr. Potter. Further, the ALJ found that Plaintiff could stand and walk
for only two hours in an eight-hour workday—the same limitation recommended by Dr. Potter.


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No. 18-5136, Amburgey v. Comm’r of Soc. Sec.


ladders, ropes, or scaffolds, and that her reaching abilities were limited. (Id. at PageID #1111–12.)

These opinions conflicted with the substantial evidence that Plaintiff had normal muscle strength

in her upper and lower extremities. The ALJ nonetheless gave “partial weight” to Dr. Potter’s

opinion because the medical evidence showed that Plaintiff had a limited range of motion in her

shoulders. (Id. at PageID #99.) The ALJ accommodated Plaintiff’s limitations by restricting her to

occasional pushing and pulling with the right upper and lower extremities; preventing her from

ever climbing ropes, ladders or scaffolds; and limiting her to occasionally climbing ramps and

stairs. Substantial evidence supports the ALJ’s decision.

        In conclusion, the Court finds that the ALJ did not violate the treating physician rule

because substantial evidence contradicted several of Dr. Potter’s opinions and the ALJ provided

good reasons for the amount of weight she gave to Dr. Potter’s opinions.

                b. Plaintiff’s Other Arguments

        Plaintiff contends that the ALJ improperly gave “little weight” to the opinions of Russell

Baker, a physical therapist who reported that Plaintiff suffers from debilitating stiffness and pain

in her feet that prevents her from standing or walking for more than five minutes. (Pl. Br. at 26.)

Contrary to Plaintiff’s contention, the ALJ was not required to give Baker’s opinion any particular

weight because “a physical therapist is not recognized as an acceptable medical source.” Nierzwick

v. Comm’r of Soc. Sec., 7 F. App’x 358, 363 (6th Cir. 2001) (citing Walters v. Comm’r of Soc.

Sec., 127 F.3d 525, 530–31 (6th Cir. 1997)). The ALJ considered Baker’s opinion and properly

explained that she afforded it little weight because the objective medical evidence did not support

the severe limitations that Baker reported, specifically Dr. Johnson’s finding that Plaintiff retained

“5/5” strength in her lower extremities. (R. 9-1 at PageID #101.) Accordingly, the ALJ did not err

by discounting Baker’s opinion. See Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 838 n. 9 (6th




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No. 18-5136, Amburgey v. Comm’r of Soc. Sec.


Cir. 2016) (citing SSR 06-03, 2006 WL 2329939, at *1 (Aug. 9, 2006)) (stating that the designation

as a non-acceptable medical source “may ‘justify’ giving an opinion of an acceptable medical

source greater weight.”)

        Finally, Plaintiff asserts that the ALJ improperly failed to give sufficient weight to the

opinion of Dr. O’Donnell. (Pl. Br. at 26.) But, like Dr. Ford, Dr. O’Donnell only examined the

Plaintiff before the ALJ decided Plaintiff’s first application.

                                               CONCLUSION

        Because substantial evidence supports the ALJ’s determination that Plaitniff is not disabled

due to physical or mental health problems, the Court AFFIRMS the district court’s decision.




                                                  - 28 -
