Shepard v. Commissioner of Social Security ( 2017 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0540n.06
No. 17-1237 FILED
Sep 26, 2017
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MARGARET L. SHEPARD, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
COMMISSIONER OF SOCIAL SECURITY, ) COURT FOR THE WESTERN
) DISTRICT OF MICHIGAN
Defendant-Appellee. )
)
)
BEFORE: MERRITT, MOORE, and ROGERS, Circuit Judges.
ROGERS, Circuit Judge. Margaret Shepard appeals the district court’s decision to
uphold the final decision of the Commissioner of Social Security denying her claim for
Disability Insurance Benefits under Title II of the Social Security Act. Shepard contends that the
Commissioner failed to assess her claim in accordance with the relevant Social Security Rulings.
However, substantial evidence demonstrates that the Commissioner’s decision comported with
all relevant rulings. Shepard also argues that the Commissioner failed to give proper weight to
her testimony and the opinion of her treating physician. These claims also fail because there is
substantial evidence to support the Commissioner’s decision to discount the weight of this
evidence. Finally, Shepard contends that there is not substantial evidence to support the
Commissioner’s residual functional capacity determination. However, there is substantial
No. 17-1237, Shepard v. Comm’r of Soc. Sec.
evidence in the record to support the Commissioner’s assessment. The district court, therefore,
properly upheld the Commissioner’s decision to deny Shepard’s Social Security Disability claim.
Margaret Shepard was born in March 1959. She has a high school education, and past
work experience as a mail carrier. Beginning in the early 2000’s, Shepard sought treatment for
bilateral carpal tunnel syndrome and reflex sympathetic dystrophy (“RSD”). At that time, Dr.
Narin Tanir became Shepard’s primary physician, treating Shepard’s carpal tunnel and RSD as
well as her other medical issues including obesity, depression, fatigue, and degenerative disc
disease. Shepard continued to see Dr. Tanir for these various medical issues through June 28,
2014.
On July 14, 2010, Shepard filed an application for disability insurance benefits, alleging
disability beginning on January 30, 2002 through June 30, 2007, her date last insured for
benefits. The State agency responsible for reviewing her application denied Shepard’s claim,
and she requested a hearing before an ALJ. Following a hearing, the ALJ denied Shepard’s
claim, and the Appeals Council denied review. On judicial review, the district court determined
that the ALJ’s decision was not supported by substantial evidence and remanded the case to the
Social Security Administration. Shepard v. Colvin, No. 12-CV-14386, 2013 WL 6062006, at *6
(E.D. Mich. Nov. 18, 2013).
In accordance with the district court’s order, the Appeals Council vacated the
Commissioner’s decision and remanded the case for further proceedings. Shepard’s second
administrative hearing was held on October 9, 2014 before a different ALJ. At the hearing, both
Shepard and a vocational expert testified. Shepard also amended her alleged disability onset date
to June 1, 2007.
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The ALJ’s December 31, 2014 written opinion concluded that Shepard was not disabled
from June 1, 2007, her amended alleged onset date, through June 30, 2007, her date last insured.
The ALJ determined that Shepard retained the residual functional capacity (“RFC”) to perform:
light work as defined in 20 CFR 404.1567(b) with the following:
She would require a sit/stand option, at will, and would not take
her off task more than 10%. She could never climb ladders, ropes
or scaffolds; occasionally climb ramps and stairs, stoop, kneel,
crouch, crawl, and balance. She could occasionally handle, finger
and feel bilaterally with upper extremities; would have to avoid
exposure to hazards such as unprotected heights, moving
mechanical parts, and operating motor vehicles. She can perform
simple, routine tasks; no contact with the public; and only
occasional changes in the work setting.
This conclusion was based on the ALJ’s review of the medical reports, testimony, and opinion
evidence in the record. During her review of the record, the ALJ determined that Shepard’s
statements concerning the limiting effects of her symptoms were “not entirely credible” and that
an assessment by Dr. Tanir that Shepard was unable to perform “light” or “sedentary work”
should be afforded “little weight.” Finally, based on the ALJ’s RFC findings and the vocational
expert’s testimony that Shepard could work as a machine tender, with 101,000 such positions
existing in the national economy, the ALJ concluded that Shepard was capable of making a
successful adjustment to work that exists in significant numbers in the national economy.
The Appeals Council denied Shepard’s subsequent request for review, making the second
ALJ’s decision the Commissioner’s final decision. Shepard again sought judicial review. This
time, the district court upheld the Commissioner’s decision.
The district court rejected Shepard’s argument that the ALJ erred in determining
Shepard’s RFC. First, the court concluded that the ALJ in the remanded proceedings was not
bound by the RFC from the initial administrative decision because “the only final decision by the
Commissioner in this case is [the] December 31, 2014 decision,” and the district court decision
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remanding the case to the Commissioner “expressly directed the Commissioner to ‘reconsider
the RFC.’” Shepard v. Comm’r of Soc. Sec., 2017 WL 104095, at *4 (W.D. Mich. Jan. 11,
2017). Moreover, the court observed that the Appeals Council’s remand order and the decision
of the prior district court make clear “that the prior ALJ got it wrong.” Next, the district court
determined that the substance of the ALJ’s RFC was supported by substantial evidence. The
court held that “[t]he ALJ provided a thorough and accurate discussion of the medical evidence,”
and cited medical reports that Shepard’s pain was “relatively stable and was under ‘satisfactory
control’ so long as she limited any repetitive activity.” Id. at *5.
The district court also held that substantial evidence supported the ALJ’s decision to
discount Shepard’s testimony and Dr. Tanir’s opinion regarding Shepard’s ability to work. Id. at
*7–8. The district court concluded that the conservative nature of Shepard’s treatment, the
relatively effective of control of her symptoms with pain medication, and Shepard’s daily
activities all supported the ALJ’s determination that Shepard’s testimony about the limiting
effect of her symptoms was “not entirely credible.” Id. Finally, the district court concluded that
the medical evidence in the record cited by the “ALJ provided good reasons, supported by
substantial evidence, for assigning little weight” to Dr. Tanir’s opinion. Id. at *5–7. This appeal
followed.
Shepard alleges that the ALJ’s decision erred in four respects: (i) the ALJ failed to
properly apply Social Security Ruling 03-2p (“SSR 03-2p”), which describes the process for
evaluating cases involving RSD, when determining the effect of RSD on Shepard’s ability to
work; (ii) the ALJ lacked substantial evidence for discounting Dr. Tanir’s opinion about
Shepard’s ability to perform “light” or “sedentary work;” (iii) the ALJ’s determination that
Shepard’s statements concerning the limiting effects of her symptoms were “not entirely
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credible” is not based on substantial evidence; and (iv) the ALJ’s RFC determination is not
supported by substantial evidence. None of these contentions warrants reversal.
First, the ALJ properly applied the sequential evaluation process required by SSR 03-2p
to determine the effect of Shepard’s RSD on her ability to work. See SSR 03-2p, 2003 WL
22399117, at * 6 (S.S.A., Oct. 20, 2003). While Shepard is correct that the ALJ’s decision does
not explicitly cite SSR 03-2p, the decision clearly comports with the five-step sequential
evaluation process for RSD claims prescribed by the ruling. The sequential evaluation process
is not particular to RSD claims; rather, “[c]laims in which the individual alleges RSDS/CRPS are
adjudicated using the sequential process, just as for any other impairment.” SSR 03-2p, 2003
WL 22399117, at *6 (emphasis added). First, ALJ Holmes concluded that the “record
establishes that the claimant has reflex sympathetic dystrophy,” after considering “all symptoms
and the extent to which these symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence.” Next, the ALJ determined that Shepard’s
impairment was severe because it had “more than a minimal effect on the claimant’s ability to
perform basic work-related tasks.” At step three, the ALJ determined that record evidence of
Shepard’s “activities of daily living,” “social functioning,” “concentration, persistence or pace,”
and “episodes of decompensation” demonstrated that her impairment was not equal in severity to
any of the impairments listed in 20 CFR Part 404, Subpart P, Appendix 1.
Shepard does not dispute these findings or argue that the ALJ failed to conduct these
steps under SSR 03-2p properly. Instead, Shepard argues that, because the ALJ did not explicitly
cite SSR 03-2p when assessing her RFC, there is not substantial evidence that the ALJ was
aware of the unique characteristics of RSD or the Administration’s policy for evaluating RSD
claims. But once a diagnosis of RSD is found, the determination of whether someone is disabled
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continues the same way it does “for any other impairment.” SSR 03-2p, 2003 WL 22399117, at
*6; Combs v. Astrue, 243 F. App’x 200, 205 (8th Cir. 2007). Indeed, SSR 03-2p’s guidance on
assessing a claimant’s RFC mirrors the guidance provided by social security rulings for other
medical disorders. Compare, e.g., SSR 03-2p, 2003 WL 22399117, at *6 with SSR 12-2P, 2012
WL 3104869, at *6 (S.S.A. July 25, 2012) (both instructing adjudicators to evaluate RFC under
SSR 96-8p). The ALJ adhered to SSR 03-2p’s directives to “evaluate the intensity, persistence,
and limiting effects of the individual’s symptoms to determine the extent to which the symptoms
limit the individual’s ability to do basic work,” and consider “all of the individual’s symptoms
. . . in deciding how such symptoms may affect functional capacities.” SSR 03-2p, 2003 WL
22399117, at *6–7. Explicitly citing SSR 03-2p would not have substantively changed the ALJ’s
analysis, and the fact that her inquiry actually comported with the directives of SSR 03-2p is
evidence that she was aware of the administration’s policy for evaluating RSD claims and
applied that policy.
It is also apparent that the ALJ was aware of the unique characteristics of RSD and
weighed those characteristics in determining Shepard’s limitations. As discussed above, the
ALJ’s review of objective medical evidence, including “all symptoms,” led the ALJ to conclude
that Shepard’s RSD was a severe impairment. The ALJ could not have concluded that Shepard
suffered from RSD and that her impairment was severe without being aware of the symptoms
and character of the syndrome. Rather, the ALJ’s decision devoted a great deal of discussion to
the medical evidence associated with Shepard’s RSD, observing common symptoms and
characteristics such as spontaneous pain and concerns about RSD “spread[ing] to other limbs, or
to remote parts of the body,” SSR 03-2p, 2003 WL 22399117, at *1-2. Thus, the ALJ’s decision
thoroughly considered RSD at each relevant stage of her analysis. This is in stark contrast to the
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case cited by Shepard, Miller v. Comm’r of Soc. Sec., 811 F.3d 825 (6th Cir. 2016), where we
found that the ALJ’s failure to discuss the claimant’s obesity past step two and his reliance on a
non-examining physician’s opinion “cast[] additional doubt upon whether there [was] substantial
evidence” to support the ALJ’s decision. Id. at 835. The structure and analysis in the ALJ’s
decision demonstrate that she considered Shepard’s RSD claim in conformance with SSR 03-2p.
Second, although Dr. Tanir was Shepard’s treating physician, the ALJ had good reasons
to discount his opinion because the conclusory opinion was rendered more than seven years after
the relevant period and it was inconsistent with substantial objective medical evidence in the
record. A treating physician’s opinion is typically afforded controlling weight under the treating
physician doctrine, but the ALJ is permitted to discount the weight given to a treating source’s
opinion if the ALJ “provide[s] ‘good reasons’ . . . ‘supported by the evidence in the case
record.’” Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (citations
omitted). Here, the record demonstrates several instances in which Dr. Tanir’s medical records
do not support the severity of the doctor’s opinion. Dr. Tanir noted, for example, normal gait
and sufficient pain control with medication. Moreover, the ALJ cited treatment notes that often
described Shepard’s upper and lower extremities as normal with occasional tenderness to the
knee. Adjudicators must consider whether a medical opinion is supported by the record and
whether the opinion is consistent with the record as a whole. 20 CFR § 404.1527(c)(3), (4). The
treatment notes from Dr. Tanir in the record cited by the ALJ demonstrate that Dr. Tanir’s
opinion could be denied controlling weight by the ALJ.
The fact that there is some evidence in the medical records to support Dr. Tanir’s
conclusion is not enough to overturn the agency. “The fact that a record may also possess
substantial evidence to support a different conclusion than that reached by the ALJ or that a
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reviewing judge might have decided the case differently is irrelevant.” Crisp v. Sec’y of Health
and Human Servs., 790 F.2d 450, 452 n. 4 (6th Cir. 1986). “The findings of the Commissioner
are not subject to reversal merely because there exists in the record substantial evidence to
support a different conclusion.” Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Instead,
our review is “limited to determining whether [the Commissioner’s decision] is supported by
substantial evidence and was made pursuant to proper legal standards.” Rogers v. Comm’r of
Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (citations omitted). In this case, the medical
evidence in the record cited by the ALJ demonstrates that there was substantial evidence to find
that Dr. Tanir’s opinion was inconsistent with the case record.
Dr. Tanir’s evaluation was also completed more than seven years after Shepard’s last
insured date. Shepard argues that the ALJ failed to observe that each page of Dr. Tanir’s
evaluation states that its responses relate to Shepard’s “Condition On Or Before June 30, 2007.”
But the ALJ’s decision never questioned whether Dr. Tanir’s evaluation related to the relevant
period. Instead, the ALJ considered whether the retrospective evaluation, seven years after the
fact, was reliable given that the “medical records from Dr. Tanir . . . provide little information or
support for allegations of disab[ility].” The ALJ’s concern is reasonable in light of Dr. Tanir’s
conclusory opinion, which provided no supporting findings or records and consisted largely of
one word answers, circles, and check-marks. Such opinions have been characterized as “weak
evidence at best” that meets the “patently deficient standard.” Hernandez v. Comm’r of Soc.
Sec., 644 F. App’x 468, 475 (6th Cir. 2016) (quoting Mason v. Shalala, 994 F.2d 1058, 1065 (3d.
Cir. 1993)). This is not to say that retrospective evaluations are inherently unreliable or that the
record is devoid of evidence of Shepard’s impairment. But the medical record evidence cited by
the ALJ and the threadbare nature of Dr. Tanir’s evaluation seven years after Shepard’s last
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insured date demonstrate substantial evidence that the ALJ has good reason to discount Dr.
Tanir’s opinion.
Third, the ALJ’s determination that Shepard’s statements concerning the “intensity,
persistence and limiting effects of [her] symptoms are not entirely credible” is supported by
substantial evidence. The ALJ observed that the medical evidence in the record indicated that
“claimant’s treatment has been relatively conservative in nature,” and “[h]er treatment has
generally consisted of pain medications, which have been relatively effective in controlling her
symptoms.” While Shepard alleges that the ALJ “selectively cited from the evidence of record”
and “relied on three isolated treatment notes,” the decision actually demonstrates a thorough
engagement with relevant evidence in the record. In disability cases, “the relevant time period
runs from [the claimant’s] alleged onset date to h[er] date last insured,” and the ALJ relied on the
medical records near in time to the relevant period here: June 1, 2007 to June 30, 2007. Watters
v. Comm’r of Soc. Sec., 530 F. App’x 419, 421 (6th Cir. 2013). Physical exams and objective
testing in May and September of 2007 demonstrated mild shoulder weakness, mild lumbar
tenderness, and mild underlying sensory peripheral neuropathy. The ALJ also observed that a
physical exam from July 2007 showed that Shepard had full range of motion in her lumbar spine
and good strength in her upper extremities, notwithstanding the presence of a positive bilateral
Tinel’s signs. Much of the counter-evidence that Shepard points to is either well after the
relevant inquiry period or relies on the very subjective statements that the ALJ discredited.
The ALJ also considered statements in Shepard’s Function Report that were inconsistent
with testimony about a “limited lifestyle.” Shepard indicated that she engaged in a variety of
activities including driving, preparing simple meals, light household cleaning, and doing laundry
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with assistance carrying the basket up and down the stairs. Indeed, Shepard told her physician
that she was performing her own housework and was even working in May and July of 2007.
Shepard argues that it was an error for the ALJ to rely on the daily activities described in
her Function Report because “[n]one of these activities demonstrates the ability to perform light
work.” But Shepard’s argument misunderstands the ALJ’s decision. The ALJ cited these
activities as evidence that Shepard’s testimony about the severity of her symptoms and her
limited lifestyle was “not entirely credible,” not to demonstrate that she was capable of light
work. It was entirely appropriate for the ALJ to consider whether Shepard’s asserted limitations
were consistent with her ability to drive, prepare simple meals, shop, and go to eat or the movies.
See 20 CFR § 404.1529. Such activity may be considered in making a credibility determination
regarding a claimant’s asserted limitations. See, e.g., Sorrell v. Comm’r of Soc. Sec., 656 Fed.
App’x. 162, 174 (6th Cir. 2016) (citing Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 543–44 (6th
Cir. 2007) and Young v. Sec’y of Health & Human Servs., 925 F.2d 146 (6th Cir. 1990)). “An
ALJ’s credibility assessment must be accorded great weight and deference.” Workman v.
Comm’r of Soc. Sec., 105 F. App’x 794, 801 (6th Cir. 2004). “We have held that an
administrative law judge’s credibility findings are virtually unchallengeable” absent compelling
reasons. Ritchie v. Comm’r of Soc. Sec., 540 F. App’x 508, 511 (6th Cir. 2013) (citation
omitted). Such reasons are not present here.
Finally, substantial evidence supports the ALJ’s determination that, “through the date last
insured, [Shepard] had the residual functional capacity to perform light work” with certain
restrictions. The ALJ’s findings are supported by evidence that Shepard’s treatment during the
relevant period was relatively conservative, generally consisting of pain medications, and that
this treatment was generally effective. Between May and July of 2007, Shepard reported
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significant improvement in her pain levels with medication, and in June of 2007 she reported to
her physician that her pain relief was adequate. As discussed above, physical exams and
objective medical testing in the record demonstrated only mild abnormalities near in time to the
relevant period. Moreover, immediately before the relevant period Shepard had “full[y] active
abduction and forward flexion and internal rotation was equal bilaterally.”
Shepard contends that there is conflicting evidence in the record that demonstrates she
was incapable of light work during the relevant period. That may be so, but when the ALJ is
“presented with the not uncommon situation of conflicting medical evidence[,] [t]he trier of fact
has the duty to resolve that conflict.” Richardson v. Perales, 402 U.S. 389, 399 (1971). Our job
is only to ensure that the Commissioner’s determination is supported by substantial evidence.
See Rogers, 486 F.3d at 241. Moreover, the conflicting evidence that Shepard cites supports the
ALJ’s decision to include limitations on Shepard’s ability to perform light work, including a
sit/stand at will option and limitations on her ability to handle, finger, and feel bilaterally with
the upper extremities. The RFC’s limitations are further supported by Shepard’s testimony and
opinion evidence in the record. All of these considerations are consistent with the
Commissioner’s guidelines for assessing a claimant’s residual functional capacity. See SSR 96-
8p, 1996 WL 374184, at *2 (July 2, 1996).
Shepard also argues that the ALJ’s RFC lacks substantial evidence because no physician
opined that Shepard was capable of light work. But “the ALJ is charged with the responsibility
of determining the RFC based on her evaluation of the medical and non-medical evidence.”
Rudd v. Comm’r of Soc. Sec., 531 F. App’x 719, 728 (6th Cir. 2013) (emphasis added). An RFC
is an “administrative finding,” and the final responsibility for determining an individual’s RFC is
reserved to the Commissioner. SSR 96-5p, 1996 WL 374183, at * 1–2 (July, 2, 1996). “[T]o
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require the ALJ to base her RFC on a physician’s opinion, would, in effect, confer upon the
treating source the authority to make the determination or decision about whether an individual is
under a disability.” Rudd, 531 F. App’x at 728.
The judgment of the district court is affirmed.
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