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Case: 2:12-cv-00164-DCR Doc #: 14 Filed: 09/20/13 Page: 1 of 25 - Page ID#: 747

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY

NORTHERN DIVISION

(at Covington)

MATTHEW FRANK MURNANE,

Plaintiff,

V.

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

Defendant.

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Civil Action No. 2: 12-164-DCR

MEMORANDUM OPINION

AND ORDER

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This matter is pending for consideration of cross-motions for summary judgment filed

by Plaintiff Matthew Frank Murnane (“Murnane” or “the Claimant”) and Defendant Carolyn

W. Colvin, Acting Commissioner of Social Security (“the Commissioner”). [Record

Nos. 11, 13] Murnane contends that the Administrative Law Judge (“ALJ”) erred in finding

that he is not entitled to a period of disability and Disability Insurance Benefits (“DIB”)

under the Social Security Act (“Act”). He seeks reversal of the ALJ’s decision and an award

of benefits or, in the alternative, remand for further consideration. The Commissioner asserts

that the ALJ’s decision was proper and should be affirmed. For the reasons discussed below,

the Court will grant the Commissioner’s motion for summary judgment and deny the relief

sought by Murnane.

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I.

On April 27, 2009, Murnane applied for a period of disability and DIB under Title II

of the Act. He alleges a disability beginning January 1, 2003. [Tr., pp. 28, 70-75] His

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application was denied initially and upon reconsideration. [Id.] On January 14, 2011, an

administrative hearing was held by video. Murnane appeared and testified in Cincinnati,

Ohio, while ALJ Daniel Dadabo presided from Evanston, Illinois. [Tr., pp. 42-69] Larry

Hicks, Murnane’s attorney, along with vocational expert (“VE”) William J. Kiger were also

present at the hearing. [Id.] ALJ Dadabo issued a decision on March 23, 2011, finding that

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Murnane was not disabled under sections 216(i) and 223(d) of the Act. [Tr, pp. 28-36]

Murnane was fifty-three years old at the time of the ALJ’s decision. [Tr., pp. 25, 45]

He has completed three years of college and has prior work experience as a self-employed

used car dealer/dealership owner and operator, and auto sales manager. [Tr., pp. 30, 45-46]

His alleged disability results from severe hip impairment with status post hip replacement

and revisions and a major staph infection in his left hip. [Tr., pp. 32, 83] After reviewing

the record and testimony presented during the hearing, the ALJ concluded that Murnane

suffered from a severe impairment of avascular hip necrosis with status post hip

replacements and revisions. [Id.] Notwithstanding this impairment, he found that Murnane

3

1

Murnane’s date of last insured was December 31, 2004. [Tr., pp. 28, 30, 178]

Following Murnane’s hearing before ALJ Dadabo, additional evidence was admitted into the record.

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[Tr., p. 28]

ALJ Dadabo concluded that Murnane did not have an impairment that met or equaled a listed

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impairment. [Tr., p. 31]

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retained the residual functional capacity (“RFC”) to perform a full range of light work as

defined in 20 C.F.R. § 404.1567(b). [Tr., pp. 32-35] In relevant part, ALJ Dadabo

“decline[d] to infer that through the date [of] last insured, the claimant was unable to work

on uneven surfaces, around operating machinery[,] or operate foot controls.” [Tr., p. 35]

Based on the VE’s testimony, the ALJ found that Murnane could perform his past

relevant work as a small business manager, buyer, and sales representative at the light level

of exertion, as well as an auto sales manager, generally performed at the sedentary level.

[Tr., pp. 35, 66-67] After finding that Murnane could perform past relevant work, the ALJ

concluded that he was not disabled. [Tr., p. 35]

II.

Under the Social Security Act, a “disability” is defined as “the inability to engage in

‘substantial gainful activity’ because of a medically determinable physical or mental

impairment of at least one year’s expected duration.” Cruse v. Comm’r of Soc. Sec., 502 F.3d

532, 539 (6th Cir. 2007). A claimant’s Social Security disability determination is made by

an ALJ in accordance with “a five-step ‘sequential evaluation process.’” Combs v. Comm’r

of Soc. Sec., 459 F.3d 640, 642 (6th Cir. 2006) (en banc) (quoting 20 C.F.R. §

404.1520(a)(4)). If the claimant satisfies the first four steps of the process, the burden shifts

to the Commissioner with respect to the fifth step. See Jones v. Comm’r of Soc. Sec., 336

F.3d 469, 474 (6th Cir. 2003).

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First, the claimant must demonstrate that he is not engaged in substantial gainful

employment at the time of the disability application. 20 C.F.R. § 404.1520(b). Second, the

claimant must show that he suffers from a severe impairment or combination of impairments.

20 C.F.R. § 404.1520(c). Third, if the claimant is not engaged in substantial gainful

employment and has a severe impairment which is expected to last for at least twelve months

and which meets or equals a listed impairment, he will be considered disabled without regard

to age, education, and work experience. 20 C.F.R. § 404.1520(d). Fourth, if the

Commissioner cannot make a determination of disability based on medical evaluations and

current work activity and the claimant has a severe impairment, the Commissioner will then

review the claimant’s RFC and relevant past work to determine whether he can perform his

past work. If he can, he is not disabled. 20 C.F.R. § 404.1520(f).

Under the fifth step of the analysis, if the claimant’s impairment prevents him from

doing past work, the Commissioner will consider his RFC, age, education, and past work

experience to determine whether he can perform other work. If he cannot perform other

work, the Commissioner will find the claimant disabled. 20 C.F.R. § 404.1520(g). The

Commissioner has the burden of proof only on “the fifth step, proving that there is work

available in the economy that the claimant can perform.” White v. Comm’r of Soc. Sec., 312

F. App’x 779, 785 (6th Cir. 2009) (quoting Her v. Comm’r of Soc. Sec., 203 F.3d 388, 391

(6th Cir. 1999)).

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Judicial review of the denial of a claim for Social Security benefits is limited to

determining whether the ALJ’s findings are supported by substantial evidence and whether

the correct legal standards were applied. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241

(6th Cir. 2007). The substantial evidence standard presupposes that there is a zone of choice

within which decision makers can go either way, without interference from the court.

McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006). Substantial

evidence is such relevant evidence as a reasonable mind might accept as sufficient to support

the conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Bass v. McMahon, 499

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

If supported by substantial evidence, the Commissioner’s decision must be affirmed

even if the Court would decide the case differently and even if the claimant’s position is also

supported by substantial evidence. Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir.

2007); Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007); Longworth v. Comm’r of Soc.

Sec. Admin., 402 F.3d 591, 595 (6th Cir. 2005); Casey v. Sec’y of Health & Human Servs.,

987 F.2d 1230, 1233 (6th Cir. 1993). Thus, the Commissioner’s findings are conclusive so

long as they are supported by substantial evidence. 42 U.S.C. § 405(g).

III.

Murnane argues that the Commissioner’s determination should be overturned because

it is not supported by substantial evidence. More specifically, he contends that: (1) the ALJ

impermissibly “played doctor” when making his RFC determination; (2) the ALJ’s RFC

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determination fails to meet the requirements of SSR 96-8p and does not properly explain the

basis for Murnane’s RFC assessment; and (3) the ALJ violated the treating physician rule

when weighing the opinions of Dr. Joel I. Sorger, Orthopedist. [Record No. 11] However,

the Commissioner argues that the decision denying benefits to Murnane is supported by

substantial evidence.

A. Murnane’s RFC

As an initial matter, Murnane argues that the ALJ erred in making RFC findings based

on his “own non-expert ‘reading of the record.’” Because the ALJ is not a medical expert,

he asserts that these determinations were erroneous. [Record No. 11, p. 8 (citing Hall v.

Celebrezze, 314 F.2d 686, 690 (6th Cir. 1963) (the Secretary may not supplant his own

opinions regarding physical disabilities for those of uncontradicted medical experts))]. This

argument, however, is misplaced.

The RFC determination

is a matter reserved for

the ALJ.

See 20

C.F.R. § 404.1520(a)(4) (outlining the five-step sequential evaluation process used to

ascertain whether a claimant is disabled). See also Edwards v. Comm’r of Soc. Sec., 97 F.

App’x 567, 569 (6th Cir. 2004) (“[The RFC] determination is expressly reserved for the

Commissioner.”). In making this determination, the ALJ considers the medical evidence,

non-medical evidence, and the claimant’s credibility. See 20 C.F.R. §§ 404.1545(a)(1), (3)

& 404.1546(c). The Sixth Circuit has recognized that “the ALJ is charged with the

responsibility of evaluating the medical evidence and the claimant’s testimony to form an

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assessment of the claimant’s residual functional capacity.” Coldiron v. Comm’r of Soc. Sec.,

391 F. App’x 435, 439 (6th Cir. 2010) (internal quotation marks and citation omitted).

Moreover, an ALJ “does not improperly assume the role of a medical expert by weighing the

medical and non-medical evidence before rendering an RFC finding.” Id. (citations omitted).

The ALJ also need not “give any special significance to the source of an opinion on issues

reserved to the Commissioner.” 20 C.F.R. § 404.1527(d)(3). An ALJ’s finding on the RFC

will be upheld where it is supported by substantial evidence.

1.

Credibility Determination

Murnane argues that the ALJ did not properly evaluate his subjective complaints when

determining his RFC. [Record No. 11, pp. 7-9] He asserts that ALJ Dadabo’s reliance on

written statements submitted as part of the application for benefits was in error. [Record No.

11, p. 7] He implies that the ALJ should have been confined to only testimony at his hearing

in evaluating his credibility. However, he cites to no authority for this proposition. Instead,

contrary to Murnane’s argument, the Social Security regulations require the ALJ to review

all evidence in the record when making an RFC determination. See 20 C.F.R. § 404.1545(a)

(emphasis added). Additionally, the written documents that ALJ Dadabo relied on were

records Murnane submitted. These records detail extensive daily activities which embody

relevant considerations in evaluating Murnane’s credibility. The ALJ did not err in

considering these materials.4

Moreover, a comparison of the Claimant’s testimony and his written submissions demonstrates that

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there is little to no substantive difference.

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Credibility determinations regarding a claimant’s subjective complaints of pain rest

with the Commissioner. See Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir.

1997). Such determinations are entitled to a great amount of deference. See Buxton v.

Halter, 246 F.3d 762, 773 (6th Cir. 2001); see also Williamson v. Sec’y of Health and Human

Servs., 796 F.2d 146, 150 (6th Cir. 1986). This is because the ALJ is in a unique position to

“observe the claimant and judge [his] subjective complaints.” Buxton, 246 F.3d at 773. In

fact, an ALJ is “charged with the duty of observing a witness’s demeanor and credibility.”

Walters, 127 F.3d at 531. As a result, an ALJ’s credibility determinations are “entitled to

deference on judicial review.” Boyett v. Apfel, 8 F. App’x 429, 434 (6th Cir. 2001).

However, if the ALJ “rejects a claimant’s testimony as incredible, he must clearly state his

reasons for doing so.” Felisky v. Brown, 35 F.3d 1027, 1036 (6th Cir. 1994).

Here, the ALJ found that Murnane’s “medically determinable impairments could

reasonably be expected to cause the alleged symptoms; however, [his] statements concerning

the intensity, persistence and limiting effects of these symptoms are not credible to the extent

they are inconsistent” with his RFC. [Tr., p. 33] ALJ Dadabo clearly stated his reasons for

finding Murnane’s testimony not entirely credible. For instance, the ALJ considered

Murnane’s work history and daily activities and found them to be inconsistent with his

complaints. [Tr., pp. 33-34] Murnane indicated that does small loads of laundry, visits

friends, attends church, drives his car, goes shopping, takes his daughter to school. Further,

he traveled by car for over forty-five minutes to Columbus, Ohio for a doctor’s appointment.

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[Tr., pp. 34, 207-212] ALJ Dadabo correctly weighed these activities in determining that

Murnane’s subjective statements conflicted with his own accounts of daily activities. See

Buxton, 246 F.3d at 775 (noting that the claimant’s ability to shop for herself, do light

cleaning, cook, drive, and exercise daily contradicted her claim that she could not work); see

also Walters, 127 F.3d at 532 (noting that an ALJ may consider a claimant’s engagement in

household and social activities in assessing his assertions of pain and ailments).

The evidence also indicates that Murnane continued to work as a car dealer as late as

2008. [Tr., pp. 34, 52-53] The Claimant testified that he attended approximately three auto

auctions in 2004 and the same number in 2010. [Tr., pp. 53, 57-59] He stated that, at these

auctions, he would stand for forty-five minutes to an hour, walked around the vehicles that

were up for auction, and stood during the bidding sessions. [Tr., pp. 57-59] ALJ Dadabo

also noted that Dr. Sorger indicated that Murnane “works one of his jobs as a used car

salesman. He goes to a lot of automobile shows . . . .” [Tr., p. 632] The ALJ properly

considered this evidence, finding that Murnane’s continued work as a car dealer, even at a

reduced rate, undermined his credibility. [Tr., p. 34; see Blair v. Comm’r Soc. Sec., 430 F.

App’x 426, 427-428 (6th Cir. 2011) (affirming ALJ’s adverse credibility determination

where the claimant worked part time from home after her alleged onset date of disability,

drove her car daily, picked up her children from the bus, went to church, and visited family

and friends); see also Maloney v. Comm’r of Soc. Sec., 480 F. App’x 804, 811 (6th Cir.

2012).]

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Additionally, ALJ Dadabo’s credibility determination was based on objective medical

evidence and treatment history that Murnane received for his hip ailments. See 20 C.F.R.

§ 404.1529(c)(3)(v) (noting that the Commissioner will consider the treatment a claimant

receives for relief of his pain or other symptoms). The ALJ found that “[d]espite undergoing

multiple surgeries before the date last insured, including the January 2003 left hip revision,

which certainly suggests that the symptoms were genuine, the record otherwise reflects that

[the] surgeries generally were successful in relieving the symptoms through the date of last

insured.” [Tr., p. 33]

5

Dr. George Shybut, M.S., who operated the claimant’s hip in 2003, noted that, post-

operatively, oral analgesics controlled Murnane’s pain and he was able to complete his

course of therapy. [Tr., pp. 294-98] This was also corroborated by Murnane’s testimony that

prescribed medication provided him pain relief. [Tr., pp. 33, 203, 294; see generally

Houston v. Sec’y of Health & Human Servs., 736 F.2d 365, 367 (6th 1984) (affirming ALJ’s

credibility determination where the claimant’s condition was managed by medication); see

also Hardy v. Astrue, No. 5:12CV1836, 2013 U.S. Dist. LEXIS 62942, at *35 (N.D. Ohio

May 2, 2013) (affirming ALJ’s credibility determination where ALJ found the claimant’s use

5
The Claimant’s contention that this finding contradicts the ALJ’s ultimate RFC determination is
without merit. [Record No. 11, p. 7] While the ALJ stated the obvious — that the Claimant undergoing
surgery would suggest the surgery was actually warranted — the ALJ also found that the surgeries were
generally successful in relieving the symptoms through the date of last insured. [Tr., p. 33] The ALJ then
weighed other statements of the Claimant, along with medical and non-medical evidence in making his RFC
determination.

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of prescribed medication controlled pain as well as the claimant’s experienced improvement

after physical therapy, coupled with his failure to further pursue such therapy).]

Murnane was also advised by Dr. Shybut to undergo physical therapy post surgery

until he could walk independently. [Tr., pp. 295] The Claimant concedes that, consistent

with his medical records, he made progress during a number of therapy sessions in 2003.

[Record No. 11, p. 14; see also Tr., pp. 309-12.] Despite this progress, Murnane was later

discharged from therapy in December 2003 after failing to contact the therapy center since

November 2003. [Tr., pp. 294-95, 309-13; see Longworth v. Comm’r Soc. Sec. Admin., 402

F.3d 591, 596 (6th Cir. 2005) (noting that a physician’s prescription of only physical therapy

constituted substantial evidence that supported the ALJ’s RFC finding that the claimant could

perform an “adequate range of light work”).] ALJ Dadabo also inferred that Murnane’s

failure to continue with physical therapy indicated that the Claimant no longer thought he

needed it. [Tr., p. 33; see 20 C.F.R. § 404.1530 (noting that absent good reasons, the

claimant “must follow [the] treatment prescribed by [his] physician if this treatment can

restore [his] ability to work”).] The ALJ permissibly considered Murnane’s failure to

continue with physical therapy in making his credibility determination. See Tippett v. Colvin,

No. 6:12-cv-239-JMH, 2013 WL 3233579, at *7 (E.D. Ky. June 24, 2013); see also Choate

v. Barnhart, 457 F.3d 865, 872 (8th Cir. 2006) (a claimant’s noncompliance with physician’s

directions or prescribed treatment is valid reason to discredit his subjective allegations).

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In light of the deference given to the ALJ regarding the Claimant’s credibility and

subjective complaints of pain, as well as the fact that he clearly stated his reasoning for the

weight afforded to Murnane’s complaints, the Court finds no error with the ALJ’s

determination of Murnane’s credibility. The ALJ properly considered the medical and non-

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medical evidence of record and Murnane’s own testimony in determining the RFC.

Substantial evidence supports the ALJ’s determination of Murnane’s RFC.

2.

State Agency Single Decision Maker & Non-Examining Physician
Opinions

Murnane also contends that the ALJ erred in the weight that he assigned to the

opinions of state agency decision maker (“SDM”) Jeremy Vincent and state agency medical

consultant Amanda Lange, M.D., when determining his RFC. [Record No. 11, pp. 10-11]

More specifically, he argues that SDM Vincent and Dr. Lange expressed no opinion

regarding his impairments and that the ALJ “erred in ascribing ‘great weight’” to the findings

of Vincent and Dr. Lange because they “never rendered an RFC opinion.” [Id., p. 11]

Murnane concludes that “these ‘non-opinions’ cannot be ‘substantial evidence’ to support

the [ALJ’s RFC determination].” [Id.]

6
The Claimant contention that the ALJ used “boilerplate, robo-decision language criticized by the
Seventh Circuit in Parker v. Astrue, 597 F.2d 920, 921-22 (7th Cir. 2010),” also lacks merit. As noted above,
ALJ Dadabo properly considered the Murnane’s credibility and he sufficiently explained his reasoning for
the weight given to Murnane’s subjective complaints. While the ALJ used language that has been criticized
by some courts, he also considered Murnane’s testimony, comparing it to the other evidence as well as prior
written statements of the Claimant. [Tr., pp. 32-34]

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However, the Claimant is incorrect in contending that SDM Vincent and Dr. Lange

did not express opinions. [Record No. 13, p. 10] On July 14, 2009, SDM Vincent reviewed

the evidence and opined that there was “insufficient evidence to establish the presence of any

condition which would have prevented the claimant from working on or before December

31, 2004.” [Tr., p. 558] Dr. Lange affirmed Vincent’s findings on November 10, 2009. [Tr.,

p. 600] In essence, Dr. Lange affirmed Vincent’s finding that there was insufficient evidence

to establish that Murnane suffered from a disabling condition during his insured period. [Tr.,

pp. 558, 600] Thus, Vincent and Dr. Lange expressed opinions that there was no evidence

in the record to support a finding of disability.

It was proper for ALJ Dadabo to consider the opinion of state agency medical

consultant Dr. Lange. See 20 C.F.R. § 404.1527(e). And because state agency consultants

7

are considered experts in the Social Security disability programs, their opinions may be

entitled to great weight if such opinions are supported by the evidence in the record. See 20

C.F.R. § 416.1527(f)(2); SSR 96-6p, 1996 WL 374180 (July 2, 1996); see also Hibbard v.

Astrue, 537 F. Supp. 2d 867 (E.D. Ky. 2008). Additionally, SSR 96-6p provides that, “[i]n

appropriate circumstances, opinions [of non-examining physicians] may be entitled to greater

7
ALJ Dadabo did not specifically state the weight he afforded SDM Vincent’s opinion. Instead, he
evaluated SDM Vincent’s opinion in his discussion of Dr. Lange’s opinion. He noted that “[a]s for the
opinion evidence . . . the undersigned has accorded great weight to the opinion of the State agency consultant
[Dr. Lange] affirming the opinion of the State consultant [SDM Vincent], insofar as the evidence is
insufficient to support greater limitations than determined herein.” [Tr., p. 35]

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weight than the opinions of treating or examining sources.” SSR 96-6p, 1996 WL 374180

(July 2, 1996).

ALJ Dadabo properly considered and weighed the opinions of Dr. Lange after he

examined all the evidence presented. [Tr., p. 35] The ALJ specifically discussed the

Claimant’s hip surgeries in 2000 and 2003, his physical therapy treatment, as well as his

subjective complaints, work history, and daily living activities. [Tr., pp. 33-35] The ALJ

also noted that, despite Murnane presenting himself “to the emergency room for left hip

complaints in July 2003 and November 2003, fearing infection or loosening” of his hip

implants, “[a] bone scan obtained in November 2003, [] did not evidence infection.” [Tr.,

p. 33] Further, the ALJ considered a February 2004 “follow-up whole body bone scan”

which failed to show more than mild changes in the hips compared to a bone scan that was

obtained in 2001 before the revision, as well as further imaging obtained in October 2004

that “revealed the joint prosthesis to be unremarkable, with no evidence of fracture or

loosening.” [Tr., pp. 33, 439, 442, 634] The ALJ appropriately evaluated the opinions of

Dr. Lange – and by implication the opinion of SDM Vincent.

3.

RFC Assessment & Requirements of SSR 96-8p

Murnane contends that ALJ Dadabo did not comply with SSR 96-8p in determining

his RFC. [Record No. 11, p. 12] He argues that the ALJ’s failure to include a function-by-

function assessment was erroneous. [Id.] SSR 96-8p requires that the ALJ’s RFC

assessment “include a narrative discussion describing how the evidence supports each

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conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence

(e.g., daily activities, observations).” SSR 96-8p, 1996 SSR LEXIS 5, at *19 (July 2, 1996).

“The adjudicator must discuss the individual’s ability to perform sustained work activities

in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days

a week, or an equivalent work schedule).” Id.; see also Sims v. Apfel, 172 F.3d 879, 880

(10th Cir. 1999) (defining a “regular and continuing basis” as “8 hours a day, for 5 days a

week”). Further, SSR 96-8p requires the ALJ to individually assess the exertional and non-

exertional capacities of the claimant in determining his RFC. 1996 SSR LEXIS 5, at *15-19.

In Delgado v. Commissioner of Social Security, the Sixth Circuit rejected the

claimant’s argument that SSR 96-8p requires an ALJ to include a function-by-function

discussion in his determination of the claimant’s maximum capacity to perform each work-

related activity. 30 F. App’x 542, 547-48 (6th Cir. 2002). The court noted that, “[a]lthough

a function-by-function analysis is desirable, SSR 96-8p does not require ALJs to produce

such a detailed statement in writing.” Id. at 548 (quotation marks and citation omitted); see

also Boatwright v. Comm’r Soc. Sec., No. 11-14427, 2013 U.S. Dist. LEXIS 36145, at *29-

30 (E.D. Mich. Feb. 20, 2013) (report and recommendation), adopted by No. 11-14427, 2013

U.S. Dist. LEXIS 35152, at *1 (E.D. Mich. Mar. 14, 2013). The court further opined that the

ALJ is only required to articulate how the evidence of record supports the RFC

determination, discuss the claimant’s ability to perform work-related activities, and explain

the resolution of any inconsistencies in the record. 30 F. App’x at 547.

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Here, the ALJ considered each of Murnane’s symptoms that were supported by

evidence in the record. [Tr., p. 32 (“In making this finding, the undersigned has considered

all symptoms and the extent to which these symptoms can reasonably be accepted as

consistent with the objective medical evidence and other evidence.”)] He discussed the

limitations those symptoms would place on Murnane’s ability to work and determined that

the Claimant could perform a full range of light work as defined in 20 C.F.R. § 404.1567(b).

[Tr., pp. 32–35] Moreover, the ALJ found that the Claimant had not provided any medical

evidence relating to the relevant time period which undermined his RFC conclusion. [Tr.,

p. 35] Ultimately, with the testimony of the VE, he concluded that Murnane could perform

his past relevant work on a regular and continuing basis. [Tr., p. 35] The ALJ provided a

narrative discussion of Murnane’s symptoms, their effect on his work, and how he reached

those conclusions. Thus, the narrative he provided complied with the requirements of SSR

96-8p.

Next, the Claimant alleges that the ALJ erred in determining that he had the ability

to perform the full range of light work, absent any specific documentation that explicitly

stated such. [Record No. 11, pp. 12-14] However, the RFC finding is based “on all of the

relevant medical and other evidence.” 20 C.F.R. § 404.1545(a)(3). While the evidence “may

contain medical opinions” that include statements which reflect judgments of what a claimant

can still do despite his impairments, a medical source assessment of the claimant’s limitations

is not necessary to allow the ALJ to make his RFC determination. 20 C.F.R.

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§ 404.1527(a)(2) (emphasis added); see also 20 C.F.R. 404.1545(a); Bingaman v. Comm’r

Soc. Sec., 186 F. App’x 642, 647 (6th Cir.2009).

As noted above, the responsibility of determining the Claimant’s RFC rests with the

ALJ, not a physician. See Coldiron, 391 F. App’x at 439. And “[a]lthough the ALJ may not

substitute his opinion for that of a physician, he is not required to recite the medical opinion

of a physician verbatim in his residual functional capacity finding.” Poe v. Comm'r of Soc.

Sec., 342 F. App’x. 149, 157 (6th Cir. 2009). Further, the ALJ does not impermissibly

assume the role of a medical expert by assessing the medical and non-medical evidence in

determining the claimant’s RFC. See Ford v. Comm’r Soc. Sec., 114 F. App’x 194, 197 (6th

Cir. 2004).

Thus, Murnane is wrong in contending that the ALJ’s determination was erroneous

because the state agency physicians did “not say claimant could do ‘light’ work” and because

the “claimant did not say it, [] nor did the claimant’s physicians say that claimant could do

light work.” [Record No. 11, p. 13] As noted above, such a determination is expressly

reserved for the Commissioner. See 20 C.F.R. § 404.1546(c). ALJ Dadabo properly

considered the evidence of record in assessing Murnane’s RFC and expressly indicated his

rationale for determining the claimant’s RFC. Moreover, substantial evidence supports the

ALJ’s RFC finding.

Throughout his motion for summary judgment, Murnane alleges that certain medical

records were not available to him at the time he filed his application for disability, or at the

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time he filed his current Complaint. More specifically, he contends that he “has been

handicapped in obtaining evaluative information from his first treating source, Dr. Shybut,

because Dr. Shybut [] was claimant’s first hip surgeon who unknowingly implanted a

defective hip replacement device which resulted in a lawsuit, which led Dr. Shybut to refuse

to provide any further information.” [Record No. 11, p. 10 (emphasis in original)] He

asserts that this lack of medical information demonstrates that the Commissioner’s decision

is not based on substantial evidence.

However, it is well-settled that a claimant bears the ultimate burden of proving the

existence of disability as defined by the Act. See Jones, 336 F.3d at 474; see also Foster v.

Halter, 279 F.3d 348, 353 (6th Cir. 2001); Boyes v. Sec’y of Health & Human Servs., 46

F.3d 510, 512 (6th Cir. 1994); 20 C.F.R. §§ 404.1512(a) & (c); 42 U.S.C. § 423(a), (c),

(d)(5)(A). Moreover, the burden of providing a complete record to enable the Commissioner

to reach a disability determination rests with the Claimant. See 20 C.F.R. §§ 404.1512(a) &

(c); Lancaster v. Comm’r of Soc. Sec., 228 F. App’x 563, 571 (6th Cir. 2007); Landsaw v.

Sec’y of Health & Human Servs., 803 F.2d 211, 214 (6th Cir. 1986) (“The burden of

providing a complete record, defined as evidence complete and detailed enough to enable

[the Commissioner] to make a disability determination, rests with the claimant.”); see also

Rise v. Apfel, No. 99-6164, 2000 U.S. App. LEXIS 26851, at *4 (6th Cir. Oct. 13, 2000)

(noting that “[o]nly under special circumstances, when a claimant is without counsel, not

capable of presenting an effective case, and unfamiliar with hearing procedures does the ALJ

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have a special duty to develop the record”) (citing Lashley v. Sec’y of Health & Human

Servs., 708 F.2d 1048, 1051-525 (6th Cir. 1983)).

Thus, because it was neither the Commissioner’s burden to prove that the Murnane

was disabled, nor was it the Commissioner’s responsibility to provide a complete record, the

Claimant’s argument is not well-taken. The ALJ properly evaluated the evidence presented

to him and reached the determination that the Claimant was not disabled.

B.

Dr. Joel I. Sorger

Murnane argues that ALJ Dadabo failed to provide good reasons for discounting the

opinion of Dr. Joel I. Sorger, as set out in his January 20, 2011 narrative medical history

letter. [Record No. 11, pp. 14-16] In this letter, Dr. Sorger outlines the Claimant’s medical

history and treatment since May 2005. [Tr., pp. 631-32] Dr. Sorger also endorsed his

application for disability benefits and opined that he does not believe that the Claimant can

return to his past employment in a full-time capacity. [Tr., p. 632] But contrary to Murnane’s

assertions, the ALJ considered Dr. Sorger’s opinions and found them to be inconsistent with

his own treatment records. As a result, he afforded Sorger’s opinions little weight.

As a general rule, the ALJ gives “more weight to the opinion of a source who has

examined [the claimant] than to the opinion of a source who has not.” 20 C.F.R.

8

8
An ALJ must consider several factors in determining what weight to give medical opinions,
including: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and
extent of the treatment relationship; (3) the supportability of the opinion; (4) the consistency of the opinion
with regard to the record as a whole; (5) whether the treating source is a specialist in the area of his or her
opinion; and (6) any other factors that tend to support or contradict the opinion. 20 C.F.R. § 404.1527(c).

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§ 404.1527(c)(1). Additionally, Social Security regulations require an ALJ to give “good

reasons” for the weight accorded to the opinion of the claimant’s treating physician. 20

C.F.R. § 404.1527(c)(2); see also Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir.

2004). However, there is no such requirement for the opinions of examining medical

sources. Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007) (noting that the

Social Security Administration “requires ALJs to give reasons for only treating sources”

(emphasis in original)). The ALJ is also “‘not bound by conclusory statements of doctors,

particularly where they are unsupported by detailed objective criteria and documentation.’”

Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 509 (6th Cir. 2006) (per curiam)

(quoting Buxton, 246 F.3d at 773). The regulations also provide that a physician’s opinion

regarding whether a claimant is disabled or unable to work will be given no “special

significance.” 20 C.F.R. § 404.1527(e)(3).

As noted above, Dr. Sorger’s letter indicates that he did not meet the Claimant until

May 24, 2005 (after the initial onset date), and approximately five months after the expiration

the Claimant’s insured status. [Tr., p. 631] Because Dr. Sorger neither examined nor treated

the Claimant during his period of insured status, he was not a treating physician and his

opinions are not entitled deferential review. See Swain v. Comm’r of Soc. Sec., 379 F. App’x

512, 517 (6th Cir. 2010) (holding that a “treating physician’s opinion is minimally probabtive

when the physician began treatment after the expiration of the claimant’s insured status”)

(internal citation omitted); Strong v. Soc. Sec. Admin., 88 F. App’x 841, 845 (6th Cir. 2004)

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(“Evidence of disability obtained after the expiration of insured status is generally of little

probative value.”); Siterlet v. Sec’y of Health & Human Servs., 823 F.2d 918, 920 (6th Cir.

1987) (a treating physician’s opinion was minimally probative because the physician did not

see the claimant for the first time until eight months after the expiration of his insured status);

Carey v. Astrue, No. 11-cv-11010, U.S. Dist. LEXIS 61665, at *30-31 (E.D. Mich. Apr. 11,

2012) (report and recommendation) adopted by No. 11-11010, 2012 U.S. Dist. LEXIS 61386

(E.D. Mich. May 2, 2012).

Murnane concedes that Dr. Sorger’s opinion does “not address with any degree of

certainty the period of time from January 1, 2003 through December 31, 2004” because he

did not begin treating Murnane until May 2005. [Record No. 11, p. 16] He argues that Dr.

Sorger’s letter “describe[s] what sounded like claimant’s condition when Dr. Shybut operated

[on him] in May 2003, however, the report omits dates.” [Id.] In short, Dr. Sorger was not

the Claimant’s treating physician during Murnane’s period of last insured. And ALJ Dadabo

“was under no special obligation” to provide a detailed discussion of his reasoning behind

the weight given to the opinions of Dr. Sorger. Norris v. Comm’r of Soc. Sec., 461 F. App’x

433, 440 (6th Cir. 2012).

While Murnane makes the superficial assertion that Dr. Sorger’s opinions should have

been afforded “great weight” for the period he treated him, medical evidence post-dating the

Claimant’s date of last insured is generally immaterial. See Gant v. Comm’r of Soc. Sec., 372

F. App’x 582, 585 (6th Cir. 2010) (affirming the ALJ’s finding that certain medical source

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opinions were credible but were not relevant since the opinions did not relate to the

claimant’s limitations prior to the date of last insured and were based on medical

observations taken after the claimant’s insured status expired); Yamin v. Comm’r of Soc. Sec.,

67 F. App’x 883, 885 (6th Cir. 2003) (affirming ALJ’s finding that the claimant’s medical

source opinion made a year after claimant’s date of last insured was not relevant to time prior

to the expiration of the claimant’s insured status); Cf. Sizemore v. Sec’y of Health & Human

Servs., 865 F.2d 709, 712 (6th Cir. 1988) (“Evidence which reflected the applicant's

aggravated or deteriorated condition is not relevant because such evidence does not

demonstrate the point in time that the disability itself began.”). The Claimant also makes no

argument concerning how Dr. Sorger’s opinions relate back to his limitations prior to his date

of last insured, see Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (a medical condition

diagnosed after the date of last insured is only minimally probative of a claimant’s condition

during the insured period), and the Court is not required to make such arguments for the

claimant. See Hollon ex rel. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 491 (6th Cir.

2006).

Notwithstanding the minimal weight to which Dr. Sorger’s opinions are entitled, ALJ

Dadabo reviewed his letter and concluded that it was inconsistent with his own treatment

records. [Tr., p. 34] For instance, Dr. Sorger’s treatment notes do not demonstrate the

existence of disabling pain or limitations. Following the Claimant’s hip revision surgery in

2006, he experienced some left thigh pain in April 2006 following his surgery, but the x-rays

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of his left hip showed that the implant was in good position, his physical examination

demonstrated that he had no increased pain with motion or weight bearing, and that “overall

he [was] doing fine.” [Tr., pp. 550-53] The Claimant continued doing well through the rest

of 2006 and into 2007, with one instance of knee pain. [Tr., pp. 544-47] Despite Murnane’s

subjective complaints of knee pain, Dr. Sorger’s notes indicate that a physical exam showed

that his knee motion was “excellent” and that his knee was “not really swollen,” and that x-

rays of his left knee show “minimal arthritic changes.” [Tr., p. 544] Additionally, x-rays of

his left hip exhibited “no change in position of the prosthesis.” [Id.] In September 2006 Dr.

Sorger noted that his limp was almost gone, and in November 2007 his notes state that the

Claimant had no pain. [Tr., pp. 546, 541]

Dr. Sorger’s treatment notes from 2007 to 2010 indicate that the Claimant’s condition

continued to improve and that he was able to walk with out a cane or crutches in January

2008. [Tr., pp. 534-40, 625-28] And although his records state that the Claimant wore a

brace in July 2009, Dr. Sorger noted that the Claimant was doing fine overall and had no new

complaints. [Tr., pp. 627-28] Despite these observations, Dr. Sorger’s January 2011 letter

stated that the Claimant continued to have difficulty with pain and with a limp. [Tr., p. 632]

However, notwithstanding the fact that this conclusion is contrary to Dr. Sorger’s treatment

notes, a physician’s statement that only reiterates a claimant’s subjective complaints of pain

is not medical evidence. See Bass, 499 F.3d at 509 (a doctor’s report that merely repeats a

patient’s assertions about her level of pain and her condition is not objective medical

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evidence); see also Mitchell v. Comm’r of Soc. Sec., 330 F. App’x 563, 569 (6th Cir. 2009)

(“A doctor’s report that merely repeats the patient’s assertions is not credible, objective

medical evidence and is not entitled to the protections of the good reasons rule.”); Warner

v. Comm’r of Soc. Sec., 375 F.3d 387, 391 (6th Cir. 2004).

ALJ Dadabo also found that Dr. Sorger’s narrative letter failed to “add anything new

as far as supported conclusions that would eliminate all work prior to the [date of last

insured].” Particularly convincing to ALJ Dadabo was that even though Dr. Sorger began

seeing the Claimant about six months after his date of last insured, in May 2005, he did not

“demarcate a substantial deterioration until 2007, which [was] well after the [date of last

insured].” [Tr., p. 34] And, as outlined above, even despite this deterioration, Dr. Sorger’s

treatment notes indicated that Murnane continued to progress. See 20 C.F.R.

§ 404.1527(c)(3)-(4) (noting that the Commissioner considers the supportability and

consistency in determining the appropriate weight given to medical source opinions). In

sum, the record demonstrates that the ALJ properly assessed the opinion of Dr. Sorger and

provided proper explanation for discounting his opinion.

IV.

Although Murnane has established that he suffers from some medical impairments,

he has not established that he is disabled as defined by the Act. After reviewing the record,

the Court does not find any of the Murnane’s arguments persuasive. The ALJ did not

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commit a reversible error and his decision is well supported by substantial evidence.

Accordingly, it is hereby

ORDERED as follows:

(1)

Plaintiff Matthew Frank Murnane’s Motion for Summary Judgment

[Record No. 11] is DENIED.

(2)

Defendant Caroyn W. Colvin’s Motion for Summary Judgment [Record No.

13] is GRANTED.

(3)

The administrative decision of Administrative Law Judge Daniel Dadabo will

be AFFIRMED by separate judgment entered this date.

This 20 day of September, 2013.

th

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