Dillinger v. Social Security Administration, Commissioner of

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

ERIN B. DILLINGER, )

)

Plaintiff, )

)

v. ) No. 3:18-CV-293-DCP

)

ANDREW M. SAUL,1 )

Acting Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION

This case is before the undersigned pursuant to 28 U.S.C. § 636(b), Rule 73 of the Federal

Rules of Civil Procedure, and the consent of the parties [Doc. 19]. Now before the Court are

Plaintiff’s Motion for Summary Judgment and Memorandum in Support [Docs. 16 & 17] and

Defendant’s Motion for Summary Judgment and Memorandum in Support [Docs. 21 & 22]. Erin

B. Dillinger (“Plaintiff”) seeks judicial review of the decision of the Administrative Law Judge

(“the ALJ”), the final decision of Defendant Andrew M. Saul (“the Commissioner”). For the

reasons that follow, the Court will DENY Plaintiff’s motion and GRANT the Commissioner’s

motion.

I. PROCEDURAL HISTORY

Plaintiff previously filed an application for disability insurance benefits on October 11,

2011, as well as an application for supplemental security income on November 15, 2011. [Tr. 12].

In both applications, Plaintiff alleged disability beginning on June 1, 2009. [Id.]. On April 17,

1 Andrew M. Saul was sworn in as the Commissioner of Social Security on June 17, 2019,

during the pendency of this case. Therefore, pursuant to Federal Rule of Civil Procedure 25(d),

Andrew M. Saul is substituted as the Defendant in this case.

2013, ALJ Mary C. Montanus issued a partially favorable decision, finding that Plaintiff was not

disabled from June 1, 2009 through July 31, 2011. [Id.]; see [Tr. 77–99]. However, ALJ Montanus

found that Plaintiff became disabled on August 1, 2011, but that medical improvement occurred

on December 28, 2012, and Plaintiff was no longer disabled as of that date. [Id.]. Plaintiff did not

appeal this finding of partial disability.

On January 28, 2014, Plaintiff filed an application for disability insurance benefits pursuant

to Title II of the Social Security Act, 42 U.S.C. § 401 et seq., alleging disability beginning on June

1, 2009. [Tr. 12, 203–11]. After her application was denied initially and upon reconsideration,

Plaintiff requested a hearing before an ALJ. [Tr. 155]. A hearing was held on February 8, 2017.

[Tr. 37–77]. On August 29, 2017, ALJ Joan A. Lawrence found that Plaintiff was not disabled.

[Tr. 12–23]. ALJ Lawrence applied res judicata and found that the previous ALJ’s decision was

final as to the period between June 1, 2009 and December 27, 2012, and “addresse[d] December

28, 2012 through the claimant’s date last insured.” [Tr. 12]. The Appeals Council denied

Plaintiff’s request for review on April 6, 2018 [Tr. 1–6], making the ALJ’s decision the final

decision of the Commissioner.

Having exhausted her administrative remedies, Plaintiff filed a Complaint with this Court

on July 13, 2018, seeking judicial review of the Commissioner’s final decision under Section

405(g) of the Social Security Act. [Doc. 1]. The parties have filed competing dispositive motions,

and this matter is now ripe for adjudication.

II. ALJ FINDINGS

The ALJ made the following findings:

1. The claimant last met the insured status requirements of the

Social Security Act on June 30, 2016.

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2. The claimant did not engage in substantial gainful activity during

the period from her alleged onset date of December 28, 2012

through her date last insured of June 30, 2016 (20 CFR 404.1571 et

seq.).

3. Through the date last insured, the claimant had the following

severe impairments: psoriatic arthritis, osteoarthritis in hips and

right knee, asthma, degenerative disc disease, diabetes, peripheral

neuropathy, depression (20 CFR 404.1520(c)).

4. Through the date last insured, the claimant did not have an

impairment or combination of impairments that meets or medically

equals the severity of one of the listed impairments in 20 CFR Part

404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525,

404.1526).

5. After careful consideration of the entire record, the undersigned

finds that, through the date last insured, the claimant had the residual

functional capacity to perform light work as defined in 20 CFR

404.1567(b) except that she can occasionally balance, stoop, kneel,

crouch, and climb stairs; must avoid extreme temperatures,

humidity, vibration, and hazards; avoid dust, fumes, smoke, and

other pulmonary irritants; no crawling, climbing, ladders, or

overhead work; can do simple work; and can deal with change one-

third of the workday.

6. Through the date last insured, the claimant was unable to perform

any past relevant work (20 CFR 404.1565).

7. The claimant was born on April 21, 1979 and was 37 years old,

which is defined as a younger individual age 18-40, on the date last

insured (20 CFR 404.1563).

8. The claimant has at least a high school education and is able to

communicate in English (20 CFR 404.1564).

9. Transferability of job skills is not material to the determination

of disability because using the Medical-Vocational Rules as a

framework supports a finding that the claimant is “not disabled,”

whether or not the claimant has transferable job skills (See SSR 82-

41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. Through the date last insured, considering the claimant’s age,

education, work experience, and residual functional capacity, there

were jobs that existed in significant numbers in the national

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economy that the claimant could have performed (20 CFR 404.1569

and 404.1569(a)).

11. The claimant was not under a disability, as defined in the Social

Security Act, at any time from December 28, 2012 through June 30,

2016, the date last insured (20 CFR 404.1520(g)).

[Tr. 15–22].

III. STANDARD OF REVIEW

When reviewing the Commissioner’s determination of whether an individual is disabled

pursuant to 42 U.S.C. § 405(g), the Court is limited to determining whether the ALJ’s decision

was reached through application of the correct legal standards and in accordance with the

procedure mandated by the regulations and rulings promulgated by the Commissioner, and

whether the ALJ’s findings are supported by substantial evidence. Blakley v. Comm’r of Soc. Sec.,

581 F.3d 399, 405 (6th Cir. 2009) (citation omitted); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,

544 (6th Cir. 2004).

Substantial evidence is “more than a scintilla of evidence but less than a preponderance; it

is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citations omitted). It

is immaterial whether the record may also possess substantial evidence to support a different

conclusion from that reached by the ALJ, or whether the reviewing judge may have decided the

case differently. Crisp v. Sec’y of Health & Human Servs., 790 F.2d 450, 453 n.4 (6th Cir. 1986).

The substantial evidence standard is intended to create a “‘zone of choice’ within which the

Commissioner can act, without the fear of court interference.” Buxton v. Halter, 246 F.3d 762,

773 (6th Cir. 2001) (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)). Therefore, the

Court will not “try the case de novo, nor resolve conflicts in the evidence, nor decide questions of

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credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citation omitted).

On review, the plaintiff “bears the burden of proving his entitlement to benefits.” Boyes v.

Sec’y. of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994) (citation omitted).

IV. DISABILITY ELIGIBILITY

“Disability” is 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 twelve months.”

42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). A claimant will only be considered disabled:

if his physical or mental impairment or impairments are of such

severity that he is not only unable to do his previous work but

cannot, considering his age, education, and work experience, engage

in any other kind of substantial gainful work which exists in the

national economy, regardless of whether such work exists in the

immediate area in which he lives, or whether a specific job vacancy

exists for him, or whether he would be hired if he applied for work.

§§ 423(d)(2)(A) and 1382c(a)(3)(B).

Disability is evaluated pursuant to a five-step analysis summarized as follows:

1. If claimant is doing substantial gainful activity, he is not disabled.

2. If claimant is not doing substantial gainful activity, his

impairment must be severe before he can be found to be disabled.

3. If claimant is not doing substantial gainful activity and is

suffering from a severe impairment that has lasted or is expected to

last for a continuous period of at least twelve months, and his

impairment meets or equals a listed impairment, claimant is

presumed disabled without further inquiry.

4. If claimant’s impairment does not prevent him from doing his

past relevant work, he is not disabled.

5. Even if claimant’s impairment does prevent him from doing his

past relevant work, if other work exists in the national economy that

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accommodates his residual functional capacity (“RFC”) and

vocational factors (age, education, skills, etc.), he is not disabled.

Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (citing 20 C.F.R. § 404.1520).

A claimant’s residual functional capacity (“RFC”) is assessed between steps three and four and is

“based on all the relevant medical and other evidence in your case record.” 20 C.F.R. §§

404.1520(a)(4), -(e) and 416.920(a)(4), -(e). An RFC is the most a claimant can do despite her

limitations. 20 C.F.R. §§ 404.1545(a)(1) and 416.945(a)(1).

The claimant bears the burden of proof at the first four steps. Walters, 127 F.3d at 529.

The burden shifts to the Commissioner at step five. Id. At the fifth step, the Commissioner must

prove that there is work available in the national economy that the claimant could perform. Her

v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999) (citing Bowen v. Yuckert, 482 U.S. 137,

146 (1987)).

V. ANALYSIS

Plaintiff asserts that the ALJ’s RFC determination is not supported by substantial evidence,

as she contends that RFC is not supported by the treatment records reviewed in the disability

decision or the opinions of the nonexamining state agency consultants. [Doc. 17 at 8–12].

Additionally, Plaintiff contends that the ALJ failed to properly analyze whether her physical

impairments met Listing 14.09. [Id. at 12–15]. The Court will address Plaintiff’s specific

allegations of error in turn.

A. ALJ’s RFC Determination

Plaintiff challenges the ALJ’s failure to include any manipulation, handling, or fingering

limitations, or any limitations relating to her being off-task during the workday, in the RFC

determination. Plaintiff asserts that “the ALJ opted not to rely upon the medical opinions contained

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in the record, and opted to utilize mischaracterized portions of Plaintiff’s treatment notes in

determining an RFC that was not consistent with the record as a whole.” [Id. at 11].

The Commissioner responds that the ALJ’s decision not to include limitations in handling

and fingering, or difficulties in focus and concentration, is supported by substantial evidence and

that Plaintiff’s reported activities were inconsistent with any significant manipulative limitations.

[Doc. 22 at 18–19]. Further, the Commissioner asserts that the ALJ appropriately stated why she

assigned little weight to the opinions of the nonexamining state agency consultants [Id. at 20], as

well as that Plaintiff has failed to show any “harm from the exclusion of the state agency

physician’s manipulative limitations from the ALJ’s RFC finding.” [Id.]. Lastly, the

Commissioner maintains that the ALJ also properly found that Plaintiff’s statements concerning

the intensity, persistence, and limiting effects of her symptoms were not entirely consistent with

the evidence in the record. [Id.].

A claimant’s RFC is the most that claimant can do despite his or her impairments. 20

C.F.R. § 404.1545(a)(1). In other words, the RFC describes “the claimant’s residual abilities or

what a claimant can do, not what maladies a claimant suffers from—though the maladies will

certainly inform the ALJ’s conclusion about the claimant’s abilities.” Howard v. Comm’r of Soc.

Sec., 276 F.3d 235, 240 (6th Cir. 2002). An ALJ is responsible for determining a

claimant’s RFC after reviewing all the relevant evidence of record. Rudd v. Comm’r of Soc. Sec.,

531 F. App’x 719, 727–28 (6th Cir. 2013). “[W]hile an ALJ is free to resolve issues of credibility

as to lay testimony, or to choose between properly submitted medical opinions, the ALJ cannot

substitute his or her own lay medical opinion for that of a treating or examining doctor.” Smiley

v. Comm’r of Soc. Sec., 940 F. Supp. 2d 592, 600 (S.D. Ohio 2013) (internal quotation marks and

brackets omitted).

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In the disability decision, the ALJ found that Plaintiff had the RFC to perform a modified

range of light work, except for finding the relevant limitations that she could occasionally balance,

stoop, kneel, crouch, and climb stairs; no crawling, climbing ladders, or overhead work; could do

simple work; and could deal with change for one-third of the workday. [Tr. 18].

Plaintiff first challenges the ALJ’s failure to include fingering or handling limitations in

the RFC determination. Plaintiff claims that the ALJ improperly based this finding on the

treatment records of her treating rheumatologist, Jay Warrick, M.D., as “the ALJ . . . completely

mischaracterized the totality of the treatment notes in the record.” [Doc. 17 at 9]. Additionally,

Plaintiff alleges that the failure to account for handling or fingering limitations in the RFC is in

conflict with the opinions of the nonexamining state agency physicians, who found that Plaintiff

was capable of no more than sedentary work, with a limitation to frequent handling and fingering.

In the disability decision, the ALJ found that Plaintiff was limited from overhead work, but

did not include any additional limitations related to Plaintiff’s use of her hands. [Tr. 18]. The ALJ

first reviewed Plaintiff’s psoriatic arthritis and degenerative disc disease when finding that

Plaintiff’s “statements concerning the intensity, persistence and limiting effects of the[ ] [claimed]

symptoms are not entirely consistent with the medical evidence and other evidence in the record.”

[Tr. 19]. The ALJ noted that Plaintiff had normal range of motion in her cervical and lumbar

spine, as well as normal strength in her upper and lower extremities during an April 29, 2013

examination in West Palm Beach, Florida. [Tr. 19 (citing Tr. 427–41)]. In particular, Plaintiff’s

motor strength testing was found to be 5/5 bilaterally including her trapezius, deltoid, triceps, and

biceps, and her hand grasping was 5/5 bilaterally. [Tr. 428].

Further, the ALJ detailed that Dr. Warrick examined Plaintiff on November 20, 2013, and

noted that Plaintiff had mild skin disease and minimal swelling. [Tr. 19 (citing Tr. 521–28)]. The

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ALJ discussed a January 19, 2015 treatment note, in which Dr. Warrick stated that Plaintiff did

not have significant swelling or deformity in her hands. [Tr. 19]; see [Tr. 581–82]. Next, the ALJ

reviewed that Plaintiff stated that she restarted Enbrel for treatment of her arthritis on April 8, 2015

and reported “that she felt better.” [Id.]; see [Tr. 583]. The ALJ detailed that Plaintiff stated on

April 7, 2016 that her psoriatic arthritis was “generally well controlled with Enbrel.” [Tr. 19 (citing

Tr. 570–94)]; see [Tr. 591]. Additionally, the ALJ noted that while Plaintiff testified that she had

frequent infections due to her medications, Dr. Warrick’s treatment notes on April 7, 2016 stated

“she did not get frequent infections [with Enbrel].” [Tr. 19 (citing Tr. 591)]. Dr. Warrick noted

that “[w]hile on the Enbrel, she is generally well controlled.” [Tr. 591].

The ALJ then reviewed the medical record with respect to Plaintiff’s back pain and

degenerative disc disease. [Tr. 20]. First, the ALJ detailed that a June 13, 2016 MRI “showed a

disc protrusion at L5-S1 that encroached the L5 nerve root but did not impinge on the nerve root.”

[Id. (citing (Tr. 606)]. The ALJ discussed that Plaintiff reported excellent pain relief from her trial

spinal cord stimulator in November of 2015. [Id.]. Following the permanent placement of her

spinal cord stimulator on November 23, 2015 [Tr. 640, 975–76], the ALJ detailed that Plaintiff

reported that she was doing well and that she had moderate pain reduction with pain medications

in January of 2016. [Tr. 20]; see [Tr. 637]. Additionally, the ALJ cited to progress notes from

Plaintiff’s treatment with Comprehensive Pain Specialists on March 17 and April 12, 2016 where

Plaintiff “continued to report moderate reduction in pain with pain medications.” [Tr. 20 (citing

Tr. 611, 618)].2 Therefore, the ALJ found that Plaintiff’s “impairments are not as severe as she

has alleged.” [Id.].

2 On March 17, 2016, Plaintiff reported that her lumbar pain was moderately controlled on

her current medication regimen, and denied side effects, stating that she was doing well on that

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Next, the ALJ stated that she assigned little weight to the opinions of the nonexamining

state agency physicians, largely “[b]ecause these physicians did not see any medical evidence after

2014.” [Tr. 21]. Dr. Rita Misra examined the evidence of record at the initial level of the agency’s

review on July 6, 2014 and opined the same RFC finding from Plaintiff’s previous claim—that

Plaintiff could occasionally and frequently lift and carry up to ten pounds, stand and/or walk for a

total of two hours, and sit for a total of six hours in an eight-hour workday. [Tr. 116]. Additionally,

Dr. Misra opined that Plaintiff could occasionally climb ramps or stairs, balance, stoop, kneel,

crouch, or crawl, but that she could never climb ladders, ropes, or scaffolds. [Tr. 116–17]. Lastly,

Dr. Misra found that Plaintiff was limited in her ability to reach left and right in front and/or

laterally, as well as in her ability to handle (gross manipulation) and finger (fine manipulation).

[Tr. 117]. Therefore, Dr. Misra opined that Plaintiff was limited to no overhead manipulation, and

frequent manipulation otherwise. [Id.]. Dr. Thomas Thrush examined the evidence of record at

the reconsideration level of the agency’s review on December 28, 2014, and opined an identical

RFC and manipulative limitations. [Tr. 134–35].

In the disability decision, the ALJ noted that “these physicians did not have access to the

complete medical record.” [Tr. 20]. For example, the ALJ detailed that they did not review the

January 19, 2015 treatment note in which Dr. Warrick stated that Plaintiff did not have significant

swelling of deformity. [Tr. 581–82]. Additionally, the ALJ noted that the nonexamining state

agency physicians did not have access to Dr. Warrick’s treatment notes after Plaintiff restarted

day and had no new complaints or concerns since her last office visit. [Tr. 625]. The ALJ

mistakenly cites to a May 16, 2016 treatment note which similarly notes that Plaintiff states that

“[s]he is doing well today with no new complaints or concerns since her last office visit,” and her

chronic low back, knee, and shoulder pain “is reduced with her current medication regimen by up

to 25%.” [Tr. 611].

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Enbrel, including that on April 8, 2015 where she stated “that she felt better” [Tr. 583], and that

on April 7, 2016, where Dr. Warrick noted that while on Enbrel, Plaintiff was “generally well

controlled” [Tr. 591]. The ALJ also discussed that the nonexamining state agency consultants did

not review Plaintiff’s excellent pain relief from her trial spinal cord simulator, as well as that

Plaintiff reported that she was doing well and that she had moderate pain reduction with pain

medication in January 2016. [Tr. 637]. Lastly, as the Court has already detailed, the ALJ cited to

March 17 and April 12, 2016 treatment notes where Plaintiff continued to report moderate

reduction in her overall pain with pain medications. [Tr. 611, 618].

Plaintiff asserts that “[w]hile there are notes of minimal improvement of symptoms with

the use of medication, the record does not reflect a Plaintiff who was pain-free or thriving post-

spinal cord stimulator, as suggested in the ALJ’s decision.” [Doc. 17 at 9]. In particular, Plaintiff

points to treatment notes detailing, “on multiple occasions, post stimulator implant, that she

experienced ‘0-25%’ improvement with the treatment plan.” [Id. (citing Tr. 604, 611, 613, 620,

627, 644)]. However, the Commissioner claims that Plaintiff’s treatment records with

Comprehensive Pain Specialists establish that Plaintiff stated that her pain was mildly to

moderately reduced with her current medication. [Doc. 22 at 12 (citing Tr. 604, 618, 1002, 1009,

1015)]. Plaintiff also cites to an October 13, 2016 treatment note with Dr. Warrick that stated that

“Enbrel is helpful, but she has had more prominent joint pain, stiffness, and swelling mainly in the

small joints of the hands, right knee, ankles and right shoulder.” [Tr. 965].

Ultimately, the ALJ was not required to adopt the opinions of the nonexamining state

agency consultants and appropriately detailed her reasoning for affording little weight to their

opinions. The ALJ explained why she rejected the opinions of Dr. Misra and Dr. Thrush, and

identified specific treatment notes in the record which the nonexamining state agency physicians

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did not review. In the disability decision, the ALJ discussed how the nonexamining state agency

physicians failed to review Plaintiff’s moderate pain reduction through her use of pain medication,

Enbrel, to treat her psoriatic arthritis and a permanent spinal cord stimulator.

Social Security Ruling 96-8p provides that “[i]f the RFC assessment conflicts with an

opinion from a medical source, the adjudicator must explain why the opinion was not adopted.”

1996 WL 374184, at *7 (July 2, 1996). However, the ALJ was not required to prove “good

reasons” for rejecting the opinions of non-treating medical sources. Norris v. Comm’r of Soc. Sec.,

461 F. App’x 433, 439 (6th Cir. 2012) (noting “a claimant is entitled under the SSA only to reasons

explaining the weight assigned to his treating sources”); see Gayheart v. Comm’r of Soc. Sec., 710

F.3d 365, 376 (6th Cir. 2013) (holding that “opinions from nontreating and nonexamining sources

are never assessed for ‘controlling weight’”).

While the ALJ did not directly address her rationale for failing to include the handling and

fingering limitations in the Dr. Misra and Dr. Thrush’s opinions, as the Court has already detailed,

the ALJ detailed specific treatment notes that were in conflict with the opinion. See Stringer v.

Colvin, No. 3:14-1255, 2015 WL 5037064, at *8 (M.D. Tenn. Aug. 24, 2015) (holding the ALJ

provided satisfactory explanation for weight afforded to opinion of non-treating physician, even

though he did not specifically explain why he chose not to adopt each and every limitation offered),

report and recommendation adopted sub nom., Stringer v. Soc. Sec. Admin., 2015 WL 5444802

(M.D. Tenn. Sept. 15, 2015). Further, the ALJ found that the opinions were entitled to little weight,

as the nonexamining state agency physicians did not review any medical records after 2014. See

Moscorelli v. Colvin, No. 1:15-CV-1509, 2016 WL 4486851, at *3–4 (N.D. Ohio Aug. 26, 2016)

(“However, the ALJ was only tasked with offering an explanation, and the Court finds that the

ALJ offered a satisfactory explanation for the weight afforded to the opinions of the state agency

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psychologists and the reasons why some but not all of the limitations offered by these sources were

incorporated into the RFC.”); see, e.g., Watson v. Comm’r of Soc. Sec., No. 1:16-CV-432-SKL,

2018 WL 1460866, at *12–13 (E.D. Tenn. Mar. 23, 2018) (“The ALJ has provided a reasoned

explanation why Plaintiff’s RFC is less restrictive than found by every medical source of record.

The ALJ is allowed to depart from the medical opinions in assessing Plaintiff’s RFC so long as he

does not draw conclusions without citing to substantial evidence in support.”).

Additionally, the Commissioner correctly states that any error by the ALJ to include the

frequent handling and fingering limitations in Dr. Misra and Dr. Thrush’s opinions was harmless.

The nonexamining state agency consultants limited Plaintiff to frequent handling and fingering, as

opposed to constant handling and fingering, and at the disability hearing, the vocational expert’s

(“VE”) testimony incorporated such limitation in a hypothetical posed by the ALJ. Specifically,

the VE opined that an individual, who could do frequent but not constant, handling and fingering

on both hands up to two thirds of the day, would still be able to perform the jobs of ticket seller,

storage rental clerk, and toll collector—the same jobs that the ALJ found that an individual with

Plaintiff’s age, education, work experience, and RFC would be able to perform. [Tr. 70].

“Although the RFC must be supported by evidence of record, it need not correspond to, or

even be based on any specific medical opinion.” Simon v. Comm’r of Soc. Sec., No. 2:16-CV-259,

2017 WL 1017733, at *6 (S.D. Ohio Mar. 16, 2017) (citing Brown v. Comm’r of Soc. Sec., 602 F.

App’x 328, 331 (6th Cir. 2015)), report and recommendation adopted by, 2017 WL 3172717 (S.D.

Ohio July 25, 2017). An ALJ does not improperly assume the role of a medical expert by assessing

the medical and non-medical evidence before rendering the RFC. Poe v. Comm’r of Soc. Sec., 342

F. App’x 149, 157 (6th Cir. 2009). “The Sixth Circuit has repeatedly upheld ALJ decisions where

the ALJ rejected medical opinion testimony and determined [the] RFC based on objective medical

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evidence and non-medical evidence.” Henderson v. Comm’r of Soc. Sec., No. 1:08-cv-2080, 2010

WL 750222, at *2 (N.D. Ohio Mar. 2, 2010) (internal citations omitted).

Lastly, Plaintiff asserts that the ALJ erred by failing to include any additional limitations

on her ability to remain on task, “despite the fact that Plaintiff is on a variety of medications that

are known to affect one’s ability to concentrate.” [Doc. 17 at 11]. However, “an ALJ is not

required to accept a claimant’s subjective complaints and may properly consider the credibility of

a claimant when making a determination of disability,” and “can present a hypothetical to the

[vocational expert] on the basis of his own assessment if he reasonably deems the claimant’s

testimony to be inaccurate.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003). The

Commissioner also correctly states that Plaintiff fails to cite to any support within the medical

record, and cites to numerous treatment records from December of 2012 to July of 2016 wherein

Plaintiff denied any significant side effects of her medication. See [Doc. 22 at 21]; see, e.g.,

Hopkins v. Comm’r of Soc. Sec., 96 F. App’x 393, 395 (6th Cir. 2004) (“Although Hopkins

complained of drowsiness, nausea, and blurred vision, these conditions were not documented in

the record.”).

Although Plaintiff would interpret the medical evidence differently, the Court finds that

the ALJ’s determination was within her “zone of choice.” Blakley v. Comm’r of Soc. Sec., 581

F.3d 399, 407 (6th Cir. 2009) (holding that “[t]he substantial-evidence standard . . . presupposes

that there is a zone of choice within which the decisionmakers can go either way” and that as long

as substantial evidence supports the ALJ’s finding, the fact that the record contains evidence which

could support an opposite conclusion is irrelevant) (quotations omitted); see also Huizar v. Astrue,

No. 3:07CV411-J, 2008 WL 4499995, at *3 (W.D. Ky. Sept. 29, 2008) (“While plaintiff

understandably argues for a different interpretation of the evidence from that chosen by the ALJ,

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the issue is not whether substantial evidence could support a contrary finding, but simply whether

substantial evidence supports the ALJ’s findings.”).

Ultimately, it is well-established that when evaluating the claimant’s RFC, the ALJ is not

required to base his RFC findings entirely on a physician’s opinion. See, e.g., Mokbel-Alijahmi v.

Comm’r of Soc. Sec., 732 F. App’x 395, 401–02 (6th Cir. 2018) (“We have previously rejected the

argument that a residual functional capacity determination cannot be supported by substantial

evidence unless a physician offers an opinion consistent with that of the ALJ.”) (citing Shepard v.

Comm’r of Soc. Sec., 705 F. App’x 435, 442–43 (6th Cir. 2017) (rejecting the argument that “the

ALJ’s [residual functional capacity] lacks substantial evidence because no physician opined that

[the claimant] was capable of light work”); Rudd v. Comm’r of Soc. Sec., 531 F. App’x 719, 728

(6th Cir. 2013) (rejecting the same argument because “the ALJ is charged with the responsibility

of determining the [residual functional capacity] based on her evaluation of the medical and non-

medical evidence”)). “Rather, it is the Commissioner’s prerogative to determine whether a certain

symptom or combination of symptoms renders a claimant unable to work.” Luukkonen v. Comm’r

Soc. Sec., 653 F. App’x 393, 402 (6th Cir. 2016) (citing 20 C.F.R. § 416.929(c)(1), -(d)(2)). The

ALJ is responsible for weighing medical opinions, as well as resolving conflicts in the medical

evidence of record. Richardson v. Perales, 402 U.S. 389, 399 (1971); see also 20 C.F.R. §

416.946(c) (stating the final responsibility for assessing a claimant’s RFC rests with the ALJ).

Accordingly, the ALJ’s finding that Plaintiff could perform a modified range of light work

was within her “zone of choice,” despite affording little weight to the opinions of the nonexamining

state agency consultants. See Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009).

Therefore, the ALJ’s decision not to include any handling or fingering limitations, or any

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limitations on Plaintiff’s ability to remain on track, in the RFC determination is supported by

substantial evidence.

B. ALJ’s Step Three Analysis

Plaintiff asserts that the ALJ failed to properly analyze whether her physical impairments

met Listing 14.09. [Doc. 17 at 12–14]. The Commissioner responds that the ALJ properly

considered Listing 14.09 and substantial evidence supports the ALJ’s conclusion that she did not

meet the Listing. [Doc. 22 at 15–18].

At step three of the sequential evaluation, a claimant may establish disability by

demonstrating that his impairment is of such severity that it meets, or medically equals, one of the

listings within the “Listing of Impairments” codified in 20 C.F.R., Part 404, Subpart P, Appendix

1. Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997); Foster v. Halter, 279 F.3d

348, 352 (6th Cir. 2001). The Listings describe impairments that the SSA considers to be “severe

enough to prevent an individual from doing any gainful activity, regardless of his or her age,

education, or work experience.” 20 C.F.R. § 404.1525(a). A claimant who meets the requirements

of a Listed Impairment will be deemed conclusively disabled, and entitled to benefits, but the

claimant has the burden to prove that all of the elements are satisfied. King v. Sec’y of Health &

Human Servs., 742 F.2d 968, 974 (6th Cir. 1984); see also Walters, 127 F.3d at 529. Only when

an impairment satisfies all of the Listing’s criteria will the impairment be found to be of listing

level severity. 20 C.F.R. § 404.1525(d).

In determining whether an impairment is of listing level severity, the ALJ is tasked with

comparing the medical evidence of record with a Listing’s requirements. Reynolds v. Comm’r of

Soc. Sec., 424 F. App’x 411, 415 (6th Cir. 2011). However, the Sixth Circuit rejected “a heighted

articulation standard” with regard to the ALJ’s step three finding. Bledsoe v. Barnhart, 165 F.

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App’x 408, 411 (6th Cir. 2006). “If a claimant does not have one of the findings, however, she

can present evidence of some medical equivalent to that finding.” Bailey v. Comm’r of Soc. Sec.,

413 F. App’x 853, 854 (6th Cir. 2011) (citations omitted). Yet, it is not sufficient to come close

to meeting the conditions of a Listing. See, e.g., Dorton v. Heckler, 789 F.2d 363, 367 (6th Cir.

1989) (affirming Commissioner’s decision that Plaintiff didn’t meet Listing where medical

evidence “almost establishes a disability”). Plaintiff has the burden of proving that her

impairments could meet or medically equal the criteria of Listing 14.09 by pointing to specific

medical findings that satisfy all of the criteria of the listing. Joyce v. Comm’r of Soc. Sec., 662 F.

App’x 430, 433 (6th Cir. 2016); Wredt ex rel. E.E. v. Colvin, No. 4:12-cv-77, 2014 WL 281307,

at *5 (E.D. Tenn. Jan. 23, 2014) (citations omitted).

At the time of the ALJ’s decision, Listing 14.09A required inflammatory arthritis, as

described in § 14.00D6, with:

A. Persistent inflammation or persistent deformity of:

1. One or more major peripheral weight-bearing joints resulting in the

inability to ambulate effectively (as defined in 14.00C6); or

2. One or more major peripheral joints in each upper extremity resulting in

the inability to perform fine and gross movements effectively (as defined

in 14.00C7).

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 14.09.

Section 1.00 defines the term inability to perform fine and gross movements effectively

as:

Inability to perform fine and gross movements effectively means an extreme loss

of function of both upper extremities; i.e., an impairment(s) that interferes very

seriously with the individual’s ability to independently initiate, sustain, or complete

activities. To use their upper extremities effectively, individuals must be capable of

sustaining such functions as reaching, pushing, pulling, grasping, and fingering to

be able to carry out activities of daily living.

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Therefore, examples of inability to perform fine and gross movements effectively

include, but are not limited to, the inability to prepare a simple meal and feed

oneself, the inability to take care of personal hygiene, the inability to sort and

handle papers or files, and the inability to place files in a file cabinet at or above

waist level.

20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.00(B)(2).

Plaintiff asserts that she met the applicable requirements under Listing 14.09A(2). First,

Plaintiff claims that Dr. Warrick’s treatment records establish swelling in her hands during

examination, which has resulted in her being unable to perform handling and fingering effectively.

[Doc. 17 at 13 (citing Tr. 521–28, 585, 593, 966)]. Additionally, Plaintiff alleges that she testified

that common tasks, such as completing paperwork for her children, are troublesome due to the

pain and swelling in her hands. [Id. (citing Tr. 56)]. Lastly, Plaintiff notes that Dr. Misra and Dr.

Thrush limited her to frequent handling and fingering. [Id. (citing Tr. 106–21, 125–39)].

In the disability decision, the ALJ found that Plaintiff did not have an impairment or

combination of impairments that met or medically equaled the severity of a Listed Impairment.

[Tr. 17]. Specifically, the ALJ noted that she considered Listing 14.09, but that “there is no

evidence that the claimant has had repeated manifestations of inflammatory arthritis, persistent

inflammation, persistent deformity, or ankylosing spondylitis.” [Id.].

Although the ALJ did not specifically examine the requirements of Listing 14.09 in detail,

“[t]he Sixth Circuit has declined to adopt a blanket rule that remand is required whenever an ALJ

‘provides minimal reasoning at step three of the five-step inquiry.’” Wischer v. Comm’r of Soc.

Sec., No. 13-cv-180, 2015 WL 518658, at *12 (S.D. Ohio Feb. 6, 2015), report and

recommendation adopted by, 2015 WL 1107543 (S.D. Ohio Mar. 11, 2015) (quoting Forrest v.

Comm’r of Soc. Sec., 591 F. App’x 359, 364–66 (6th Cir. 2014)); In Forrest, the Sixth Circuit

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upheld the ALJ’s conclusory finding at step three for two reasons: (1) the ALJ made sufficient

factual findings elsewhere in his decision to support his conclusion at step three; and (2) even if

the ALJ’s factual findings failed to support his step three findings, the error was harmless because

the plaintiff had not shown his impairments met or medically equaled in severity any of the listed

impairments. 591 F. App’x at 366.

Elsewhere in the disability decision, as the Court has already reviewed, the ALJ noted that

Plaintiff had normal range of motion in her cervical and lumber spine, as well as normal strength

in her upper and lower extremities during an April 29, 2013 examination. [Tr. 19 (citing Tr. 427–

41)]. Dr. Warrick noted minimal synovitis, or swelling, during a November 20, 2013 examination.

[Id. (citing Tr. 521–28)]. Additionally, the ALJ cited to a January 19, 2015 treatment note in which

Dr. Warrick stated that Plaintiff did not have significant swelling or deformity. [Tr. 19]; see [Tr.

581–82]. Although Dr. Warrick noted persistent inflammation in Plaintiff’s middle and index

fingers, the ALJ noted that Plaintiff also stated that her psoriatic arthritis was generally controlled

with Enbrel. [Tr. 20]; see [Tr. 591–95, 596–97]. Ultimately, the ALJ found that the “residual

functional capacity assessment is supported by Dr. Warrick’s treatment notes that stated that the

claimant had minimal swelling and no deformities along with the claimant’s statements that Enbrel

generally controlled her psoriatic arthritis.” [Tr. 21].

Therefore, the Court finds that the ALJ’s later discussion of Plaintiff’s treatment records

with Dr. Warrick provides substantial evidence to support her step three finding that Plaintiff did

not have “persistent inflammation” required to meet the applicable requirements of Listing 14.09.

See, e.g., Nokes v. Astrue, No. 2:09-CV-00070, 2011 WL 2632541, at *9 (M.D. Tenn. July 5,

2011) (finding substantial evidence supported finding that the plaintiff did not meet Listing 14.09,

“[a]s the ALJ noted, upon examination, Dr. Fisher observed that Plaintiff had no synovitis and no

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neurological deficits, and that she had a normal gait and normal range of motion with no joint

effusion or erythema in her hips, knees, ankles, feet, lumbar spine, shoulders, elbows, wrists, and

hands”), report and recommendation adopted by, 2011 WL 3111370 (M.D. Tenn. July 26, 2011);

Driver v. Astrue, No. 2:08-0001, 2010 WL 6826618, at *14 (M.D. Tenn. Dec. 29, 2010) (“The

record evidence and the plaintiff’s testimony do not indicate that she suffers from persistent

inflammation or a persistent deformity that causes her to ambulate ineffectively or to be unable to

perform fine and gross movements effectively. The record medical evidence shows that the

plaintiff had minimal swelling and no deformities in her joints.”) (internal citation omitted), report

and recommendation adopted by, 2011 WL 2600882 (M.D. Tenn. June 30, 2011).

With regard to the “inability to perform fine and gross movements effectively” under

Listing 14.09, Plaintiff claims that she testified that she was unable to complete paperwork, as well

as that the nonexamining state agency physicians opined that Plaintiff should be limited to frequent

handling and fingering. [Doc. 17 at 13]. However, the ALJ found that Plaintiff’s statements

regarding the limiting effects of her symptoms were not as severe as alleged after reviewing the

medical record with respect to her psoriatic arthritis. [Tr. 19]. Additionally, the nonexamining

state agency physicians each considered Listing 14.09 and found that Plaintiff did not meet the

requirements of any applicable Listing. [Tr. 115, 132].

Accordingly, the Court finds that the ALJ’s step three determination that Plaintiff did not

meet the requirements of Listing 14.09 is supported by substantial evidence, as the ALJ’s

subsequent discussion of the treatment records provided support for his finding that Plaintiff did

not have repeated manifestations of inflammatory arthritis.

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V. CONCLUSION

Based on the foregoing, Plaintiff's Motion for Summary Judgment [Doc. 16] will be

DENIED, and the Commissioner’s Motion for Summary Judgment [Doc. 21] will bbe GRANTED.

The decision of the Commissioner will be AFFIRMED. The Clerk of Court will be DIRECTED

to close this case.

ORDER ACCORDINGLY.

Q / WA OW ( . Pela

Debra C. Poplin

United States Magistrate Judge

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