              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 11a0482n.06

                                         No. 10-5104                                 FILED
                                                                                 Jul 14, 2011
                      UNITED STATES COURT OF APPEALS
                                                                           LEONARD GREEN, Clerk
                           FOR THE SIXTH CIRCUIT


WENDY LOU BLAIR,

       Plaintiff-Appellant,

              v.                                              On Appeal from the United
                                                              States District Court for the
COMMISSIONER OF SOCIAL SECURITY,                              Western District of Kentucky

       Defendant-Appellee.




                                                        /

Before:       BATCHELDER, Chief Circuit Judge, GUY and MOORE, Circuit
              Judges.

       RALPH B. GUY, JR., Circuit Judge.          Plaintiff Wendy Lou Blair appeals pro se

from the judgment affirming the decision of the Commissioner of Social Security denying

her applications for social security disability and supplemental security income benefits.

Blair argues that the Commissioner erred by not giving proper weight to the opinions of her

treating physician and nurse practitioner. The district court rejected this claim, which was

argued through counsel in objections to the magistrate judge’s report and recommendation.

After review of the record, we affirm.

                                             I.
No. 10-5104                                                                                  2

       Plaintiff, born in 1967, was 34 years old on the date of alleged disability in August

2002. She is a high-school graduate, attended two years of college, and completed training

as a medical assistant. Plaintiff worked previously as a hospital ward and billing clerk, and

doing customer service surveys as a “mystery shopper.” Although plaintiff continued to

work as a mystery shopper after the alleged onset of disability, the work during that period

was part-time, from home, and resulted in earnings of less than $4,000 annually. Plaintiff

testified that she stopped working completely in November 2004, although she later applied

for a secretarial job for which she was not hired. Plaintiff was insured for purposes of the

Social Security Act through September 30, 2005.

       Plaintiff testified that she lived with her husband and three children (ages 9, 12, and

16), drove a car every day, picked up her children from the bus stop, went to church, and

visited relatives and friends. Plaintiff would walk a couple of blocks at her doctor’s

instructions, managed her own self care, did household chores with her son, and shopped for

groceries. Although plaintiff said she used a cane at times, she did not have or use it during

the hearing. Plaintiff, who was 5' 8" tall and weighed 256 pounds, claimed to be disabled

due to obesity, diabetes, and fibromyalgia, and had a history of repeated surgery to repair an

abdominal hernia.

       Plaintiff applied for disability insurance benefits on December 23, 2004, alleging that

she had been disabled since August 18, 2002. The Commissioner denied the application

initially and upon reconsideration, and a hearing was conducted at plaintiff’s request on

March 10, 2006. The administrative law judge (ALJ) denied the application on June 28,
No. 10-5104                                                                                  3

2006, but the Appeals Council remanded to the ALJ for further consideration on May 24,

2007. On remand, the application was consolidated with plaintiff’s separate application for

supplemental security income benefits. On September 24, 2008, after a second hearing, the

ALJ denied both applications.

       The ALJ undertook the required sequential evaluation process and determined at the

fourth of five steps that plaintiff was not disabled for purposes of the Social Security Act.

See Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 543 (6th Cir. 2004) (describing five-step

process); 20 C.F.R. §§ 404.1520, 416.920. First, the ALJ found that plaintiff had not

engaged in any substantial gainful employment since the alleged onset of disability. Second,

the ALJ determined that plaintiff suffered from severe medically determinable physical

impairments of obesity, insulin dependent diabetes mellitus, lupus/fibromyalgia, and had a

history of repeated surgery to repair an abdominal hernia. Third, there is no dispute that

plaintiff’s impairments did not meet or medically equal one of the “listed” impairments. At

the fourth step, the ALJ determined that plaintiff had a residual functional capacity for

medium work with limitations, and concluded that plaintiff was capable of performing her

past relevant work because it required only light exertion. This obviated the need to reach

the fifth step of the analysis. The claimant bears the burden of proof on all except the fifth

step of the analysis. Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003).

       The Appeals Council denied plaintiff’s request for review on April 14, 2009, and

plaintiff, still represented by counsel, filed this action seeking review of the Commissioner’s

decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). On October 28, 2009, the
No. 10-5104                                                                                  4

magistrate judge rejected plaintiff’s claims and recommended affirmance. On December 4,

2009, the district court overruled plaintiff’s objections, adopted the magistrate judge’s

findings and conclusions, and affirmed the final agency decision. This pro se appeal

followed.

                                              II.

       The decision of the ALJ, which became the final agency decision in this case, is

reviewed under the same standard applied by the district court: namely, whether substantial

evidence in the record supports the ALJ’s findings. Roberts v. Comm’r of Soc. Sec., 486 F.3d

234, 241 (6th Cir. 2007). Substantial evidence is more than a scintilla, but less than a

preponderance of evidence. Id.

       On appeal, plaintiff reiterates her contention that the ALJ failed to give proper weight

to the opinions of her treating physician concerning the severity of her impairments. The

Commissioner’s regulations require that the opinion of a claimant’s treating physician be

given “controlling weight” if that opinion is “‘well-supported by medically acceptable

clinical and laboratory diagnostic techniques’ and ‘not inconsistent with the other substantial

evidence in [the] case record.’” Wilson, 378 F.3d at 544 (citation omitted) (alteration in

original); 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). Even if not entitled to controlling

weight, the ALJ must decide how much weight to give to a treating physician’s opinions

taking into account the length of the treatment relationship, frequency of examination, extent

of the physician’s knowledge about the impairments, amount of relevant evidence supporting

that opinion, extent to which the opinion is consistent with the record as a whole, whether
No. 10-5104                                                                                 5

or not the physician is a specialist, and any other relevant factors tending to support or

contradict the opinion. 20 C.F.R. §§ 404.1527(d)(2)-(6), 416.927(d)(2)-(6). No special

significance is given to an opinion on issues reserved for the Commissioner, however,

including opinions about whether the claimant meets the statutory definition of disability.

20 C.F.R. §§ 404.1527(e), 416.927(e).

       Here, plaintiff relied on a fibromyalgia questionnaire and residual functional capacity

assessment completed by Nurse Practitioner Sharon Benson in December 2005, and later

initialed by her treating physician John Kilgallin, MD, in March 2006. A slightly different

version of this form completed by plaintiff herself and initialed by Dr. Kilgallin in April

2008, listed problems such as diabetic neuropathy, osteoarthritis, anemia, cognitive

difficulties, frequent headaches, and spinal impairments. The ALJ rejected these opinions

that checked almost every block and assessed plaintiff to be “practically bedridden,” finding

that they were not supported by the objective medical evidence. The ALJ explained that the

records from Dr. Kilgallin’s office did not document the plaintiff’s condition as being that

severe and ignored evidence considered by the consulting rheumatologists who examined

plaintiff. The ALJ concluded that these assessments were completed in an attempt to

strengthen plaintiff’s disability claim.

       Apart from these assessments, Dr. Kilgallin wrote a letter dated March 3, 2008, listing

plaintiff’s diagnoses, explaining that plaintiff had been unsuccessful in controlling her

diabetes and hypertension, and indicating that, while more subjective and difficult to

ascertain if controlled, plaintiff’s fibromyalgia was “likely to be a prominent cause of her
No. 10-5104                                                                                    6

lethargy.” With respect to her diagnosis of lupus, he stated that “one must refer to the notes

of a rheumatologist for the assessment on the control of lupus.” Dr. Kilgallin emphasized

that plaintiff’s positive outlook meant that her demeanor did not tend to convey the extent

of her distress, and opined that plaintiff was “certainly incapable of holding down a job” and

was functionally “unable physically or emotionally to perform basically any type of duty

which requires consistent attendance and/or performance.”

       To the extent that Dr. Kilgallin opined that plaintiff is “disabled” or “unable to work,”

his opinion is not entitled to weight because that is an issue reserved for the Commissioner.

20 C.F.R. §§ 404.1527(e)(1), 416.927(e)(1) (“A statement by a medical source that you are

‘disabled’ or ‘unable to work’ does not mean that we will determine that you are disabled.”).

Further, the ALJ found that Dr. Kilgallin’s opinions concerning the severity of plaintiff’s

impairments were inconsistent with the other substantial evidence in the case.

       Specifically, in March 2005, plaintiff was evaluated for complaints of abdominal and

lower-back pain by Dr. Kevin Moreman. Dr. Moreman found plaintiff to have a normal

range of motion, negative straight-leg raising, normal grip strength, and normal ability to

walk. Plaintiff was not taking pain medication, except an occasional Lortab, and did not

have physical findings to suggest any limitation because of back pain in stooping, bending,

reaching, sitting, standing, moving about, carrying, or travel. Plaintiff had undergone a

hysterectomy and hernia repair in June 2003, and a repeated surgery to repair an abdominal

hernia in November 2004. These surgeries and plaintiff’s abdominal pain led Dr. Moreman

to limit plaintiff’s frequent lifting to only five-to-ten pounds because of an increased risk of
No. 10-5104                                                                                     7

incisional hernia.




       Diagnosed with fibromyalgia, plaintiff was evaluated by rheumatologist Dr. Asad

Fraser in June 2005. Dr. Fraser found plaintiff to have good grip strength, normal deep

tendon reflexes, and no swelling, synovitis, effusions, or loss of motion in any of her joints.

Referred to another rheumatologist, plaintiff was examined by Dr. Kelly Cole in July 2005.

Dr. Cole concluded that plaintiff’s condition satisfied the criteria for fibromyalgia and found

some arthritic changes in plaintiff’s knees. On a return visit to Dr. Cole in August 2005,

plaintiff reported her condition as improved, and plaintiff was given a prescription for

Lidoderm patches for pain. When seen in Dr. Kilgallin’s office, plaintiff reported that her

condition was stable and the patches were helpful. On four visits in October and November

2005, Benson noted that plaintiff had problems controlling her blood pressure and diabetes

and that the problems were caused, in part, by plaintiff’s diet. At one of those visits, plaintiff

reported that her fibromyalgia had improved.

       Dr. Kilgallin examined plaintiff for the first time since the alleged onset of disability

in January 2006, and noted that plaintiff had a little more energy and prescribed a new

fibromyalgia medication at a later visit in February 2006. Dr. Kilgallin saw plaintiff for

abdominal pain, diabetes, and nausea and vomiting between April and June 2006, and

Benson treated plaintiff for hypertension between July 2006 and September 2007. Dr.

Kilgallin’s notes from a visit on September 18, 2007, indicated that plaintiff had headaches

and fluctuating blood pressure and blood sugar levels. Dr. Kilgallin’s notes from visits in
No. 10-5104                                                                                  8

early 2008 noted poorly controlled diabetes and leg pain and back tenderness that led to a

referral for an MRI. The results of the MRI showed degenerative changes at L5-S1 but were

otherwise normal. Notes from an appointment with Benson in April 2008 indicated that

plaintiff’s diabetes was better controlled with her insulin pump.

       On December 29, 2007, plaintiff was examined by Dr. Thomas Coury, a physical

medicine and rehabilitation physician. Dr. Coury found that plaintiff was not in acute

distress, had normal gait, did not use an ambulatory device, and had no tenderness or masses

in plaintiff’s abdomen.    Dr. Coury noted a history of diabetes, with neuropathy and

gatroparesis; fibromyalgia with a history of 16/18 tender points; and recent diagnosis of lupus

based on a positive ANA. On examination, he found some decrease in the range of motion

in shoulders and elbows; decreased ability to walk heel-to-toe or squat; and pain on

palpitation (including 16/18 tender points for fibromyalgia). Dr. Coury concluded that

plaintiff had mild-to-moderate restriction in tolerance for stooping, bending, reaching,

standing, lifting, carrying, and handling objects, but no evidence of restriction in tolerance

for sitting, moving about, or traveling. Dr. Coury also completed the SSA’s Medical Source

Statement of Ability to Do Work-Related Activities (Physical), finding that plaintiff could

frequently lift and carry up to 20 pounds, occasionally lift one hundred pounds, stand or walk

one hour without interruption and for a total of five hours out of an eight-hour workday, and

sit without interruption for two hours and for a total of eight hours out of an eight-hour work

day. Plaintiff could frequently perform reaching, handling, fingering, feeling, pushing and

pulling with her hands, and could only occasionally perform climbing, balancing, stooping,
No. 10-5104                                                                                            9

kneeling, crouching or crawling. This, the ALJ found, accurately described plaintiff’s

residual functional capacity.

        Plaintiff emphasized in the district court that fibromyalgia presents subjective

symptoms. When objective medical evidence does not confirm the severity of a claimant’s

pain, the Commissioner will consider a claimant’s daily activities; location, duration,

frequency, and intensity of the pain or other symptoms; precipitating or aggravating factors;

any medication, treatment, or measures used to relieve pain or other symptoms; and other

functional limitations or restrictions due to pain or other symptoms.                   20 C.F.R. §§

404.1529(c)(3), 416.927(c)(3).         The ALJ found that plaintiff’s claims concerning the

intensity, persistence, and limiting effects of the symptoms of her medically determinable

impairments were not credible to the extent that they were inconsistent with the residual

functional capacity determination. Because credibility is particularly relevant in the absence

of sufficient objective medical evidence, the courts will generally defer to the

Commissioner’s assessment of credibility when it is supported by an adequate basis. Walters

v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997).

        After review of the record, we find that the ALJ’s determination not to accord greater

weight to Dr. Kilgallin’s opinions concerning the severity of plaintiff’s impairments and the

extent of plaintiff’s functional limitations was supported by substantial evidence.

        AFFIRMED.1


        1
        The magistrate judge concluded that to the extent that the “treater” opinions were those of Nurse
Benson, they were not from an “acceptable medical source” required to establish a medically determinable
impairment as listed in 20 C.F.R. § 404.1513(a). However, § 404.1513(d) states that in addition to the
acceptable medical sources, evidence from other sources may be used to determine the severity of the
No. 10-5104                                                                                             10




claimant’s impairments and how it affects the ability to work and that those sources include nurse
practitioners and physicians’ assistants. We are satisfied that the ALJ did not disregard the treating
physician opinions for this reason, but found that the opinions were not supported by the objective medical
evidence or consistent with the other substantial evidence in the record.
