NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 13a0746n.06 No. 12-4227 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T SONJ A STANKOSKI , Plaintiff-Appellant,
v. MI CHAEL

J . ASTRUE, COMMI SSI ONER OF SOCI AL SECURI TY, Def endant- Appellee
. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COURT FOR THE SOUTHER

N DI STRI CT OF OHI O
OPI NI ON
Be fore : McKEAGU E and DO NAL D, Circuit J udg es; L AWSON, District J udg e. *
B er n i ce B. Donald, Circuit Judge. On April 30, 2007, Sonja Stankoski applied fo r disability insurance benef its. Her application was denied by the Commi ssioner of Social Security
. The denial was upheld afte r a hear ing befor e an ad m i n i strative law judge
. The Commi ssioner’s decision was aff

irmed by the district co u rt
. Stankoski timely appea ls. For the rea sons set forth here in, we AF F IRM.
I.
I n 2007, Sonja Stankoski soug ht Socia l Sec urity disability insurance benef its, a lleg ing that she could not work due to a host of m ental and phy sical i mpairments. Although she attempted to

The Honora

ble David M. L awson, United States District J udg e for the Easter n District of * Michig an, sitting by

desig nation.No. 12-4227

Stankoski v. Comm’ r of Soc. Sec

. d o part-time work as an interpre ter in 2008 and 2009, she had not eng ag ed in substantial g ainful activity since November 3, 2006, the alleg ed onset date of her disability
. Stankoski testified that she
rec eived private disability benef its until May 2009. Sta n k o s ki suffe rs from major depre ssive disorder, single episode; osteoarthr itis of the spine; ischemic car diac disease; fibromy alg ia; obesity ; and hy pothy roidism.
1. Mental Im pairm ents
I n April 2007, Stankoski was diag nosed with major depre ssive disorder, sever e without psy chotic fea tures. I n Aug ust 2007, Stankoski attended a psy cholog ical consultative mental status examination wher e Mark Hammer ly , Ph.D., diag nosed her with m o dera te single episode major d ep re s s i on. Dr. Hammer ly noted that Stankoski was mildly defic ient in social rela tionships and perf ormed minimal household and community activities. Dr. Hammer ly also noted that Stankoski drove herse lf to appointments and attempted to seek employ ment within the last y ear . Dr. Hammer ly rate d Stankoski’s me ntal abilities as modera tely impaired in re lating to othe rs; not impair ed in he r ability to understand, reme mber, and follow instructions; not impaired in her ability t o maintain attention, conce ntration, persistenc e, and pace to perf orm simple repe titiv e t asks; and modera tely impaired in her ability to endure the stress and pressure s associate d with day -to-day work activity
. Stankoski soug ht mental health trea tment until May 2009 when her husband chang ed insurance
. I n J uly 2009, Br

uce Henne ssy , M. D. , S tankoski’s trea ting g astroente rolog ist, rec ommended that Stankoski continue t o s ee a counselor for her ong oing depre ssion. Dr. Henne ssy opined that Stankoski seeme d depre ssed and that Stankoski’s depre ssion was cre ating her phy sical sy mptoms. - 2 -No. 12-4227

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. Dr. Henne ssy explained to Stankoski that medical thera py was unsucce ssful in trea ting her phy sical ailments, but psy chother apy could be benef icial in g etting to the root of the problem. Stankoski
rec eived psy chotropic me dication, but she has not re ceive d the re commended psy chother apy . 2. P hysical Impairm ents
A. Back Im pairm ents
I n September 2007, an x -ra y of Stankoski’s lumbar spine sug g ested deg en e r a ti v e disc disease at vertebrae L 4-L 5 with interspac e narrowing , sclerosis, spurring, and vacuum disk formation. I n October 2007, a lumbar mag netic resona nce imag ing (MRI ) scan showed L 4-5 desicc ation and bulge with modera te spinal cana l stenosis, along wit h L 3 -4 disc desicc ation and bulge with mild biforaminal stenosis and mild centr al cana l stenosis. Stankoski also had an MRI of the cer vical spine, which showed C3-C4 spondy l o t i c p rotrusion resulting in mild to modera te stenosis; eff ace ment of the thec al s ac absent evidenc e of spinal cord compre ssion; C4-C5 disc desicc ation with broad- based bulging disc that eff ace s the theca l sac absent evidenc e of any spinal cord compre ssion and mild left-sided fora minal stenosis; and C5-C6 disc heig ht narr owing an d disc desicc ation with spondy lotic protrusion eff acing the theca l sac absent evidenc e of cord compre ssion with ot h er mild deg ener ative chang es. I n November 2007, Stankoski had another MRI of the thorac ic spine, which demonstrated minimal, non-compre ssive lower thorac ic spondy losis with no evidenc e of compre ssive discopathy in the thorac ic spine. T h ro u gh o ut this time, Stankoski complained of

pain and numbness in her back a nd leg s.
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. I n October 2009, S t an k o s k i had a computed tom og raphy scan of the l umbar spine and the thorac ic spine. The scan of the lumbar spine confirme d the previously discussed deg ener ative chang es along with modera te to sever e d ege n er ati ve chang es at L 5-S1. The scan of the thorac ic spine indicated mild deg ener ative chang es. I n November 2009, another MRI reve aled desicc ation of t he L 3-L 4 throug h L 5-S1 interver tebra l discs, along with centr al s pinal cana l stenosis at L 4-L 5 rela ted to discog enic s p o n d y l otic chang es with bilatera l fora minal encr oachme nt. Another MRI showed multilevel diffuse disc bulging with no spinal cord compr ession.
On November 30, 2009, Stankoski’s trea ting phy sician, Wil liam Kemp, M.D., F.A.C.S
. , noted in his clinical assessment to Albert Salomon, D.O., another trea ting phy sician, that Stankoski had some thorac olumbar pain seconda ry to deg ener ative chang es without evidenc e of spinal cord or
nerve root compre ssion. He also indicated that th e thorac ic are a did not likely require a surg ical proce dure; however, local i njection t hera py might be an opti on. Dr. K em p o p i n ed that Stankoski
was having only mild proble ms a nd her stenosis was modera te. He went on to e x plain that he and Stankoski discussed surg ical trea tment of her spinal stenosis which would include decompr ession, fix ation and fusion at L 4-L 5, but he mentioned that Stankoski d i d n o t fe el that the level of her difficulties was sufficie nt to war rant surg ical intervention. I nstead, she wanted to try epidura l steroid injections and pain manag ement trea tment. During a follow-up appo i n tment in Dec ember 2009, Stankoski ex presse d that she had nor mal streng th in the bilateral uppe r and lowe r extremities.

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. B. Heart Im pairm ents
Stankowski was diagnose d with corona ry arte ry disease and was treated in J uly 2008 with
car diac cathe terization and insertion of a stent. During a routine follow-up on October 28, 2009, her phy sician indicated that St an k o s ki was doing well without chest pain, shortness of brea th, paroxy smal nocturna l dy spnea (PND), orthopnea , or periphe ral edema
. Her phy sical condition was
unrema rkable at that time. On Marc h 6, 2009, a ca rd i ac cathe terization reve aled another lesion, which was trea ted wit h a drug- el uting stent. The treating phy sician opi ned that the new stent had achie ved excellent results and the orig inal stent loo k ed g rea t. On Marc h 27, 2009, Stankoski followed-up with the trea ting phy sician and complained that she felt poorly and continued to suffe r from chest pressure , burning , and shortness of brea th. The trea ting phy sician noted that Stankoski looked g rea t and that her phy sical condition was unrema rkable
. He altere d her medication and asked her to join car diac reha

bilitation. I n J une 2009, another car diovascular cathe terization showed twovessel artery disease with 65 perc ent s tenosis of t he left anter ior desce nding arter y and 65 perc ent stenosis of the ci rc u m fl ex. During a follow-up visit in September 2009, Stankoski repor ted mild improvement in her fatig ue and shortness of brea th, improvement in her m o o d , an d t hat she felt better ove rall.
C. F ibrom yalgia On August 18, 2007, Dr. He rber t A. Grodne r diag nosed S tankoski with deg ener ative joi nt disease and fibromy alg ia, “which has caused her to have ‘extreme pain’ in her back, neck, h an d s , - 5 -No. 12-4227

Stankoski v. Comm’ r of Soc. Sec

. shoulders, and knees.” On Fe bruar y 2, 2010, Dr. Albert M. Salomon examined Stankoski during a routine che ck-up a

nd indicated that Stankoski was suff ering from fibromy alg ia. D. Obesity
On Dec ember 4, 2007, Dr. Albert M. Salomon indicated that Stankoski was obese, based on t h re e we i g ht measure ments taken during periodic intervals in 2007. On J une 15, 2009, wh i l e discharg ing Stankoski from the hospital afte r s h e u n d erwent a hear t ang ioplasty , Dr. Ernest L
. Mazz afe rri, Jr. also diag nosed Stankoski as being obese. E. Hyp othyroidism
On Aug ust 18, 2007, Dr. Her bert A. Grodne r diag nosed Stankoski with hy pothy roidism. On J une 10, 2008, Dr. Kenne th H. Vitellas examined Stankoski and deter mined that her thy

roid g land was “ unrema

rkable .”
3. P roce edings
On April 30, 2007, Sonja Stankoski filed an application for disability insurance benef its. Her claim was denied by the Commi ssioner of Social of Security
. There afte r, Stankoski filed a written reque st f or a hear ing, which was held by an administrative law judge (AL J ) via video c onfer ence . Stankoski appea

red in Columbus, Ohio, and the AL J presided over th e h e a r in g f r o m Houston, Texas.

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. Wit h reg ard t o her mental impairments, Stankoski testified that she could take car e of her persona l needs and only had mild restric tions with her daily living activities. She also testified that while she does not g et out of the house often, she visits her family
. Stankoski further explained that she has trouble conce ntrating and completing tasks in a timely manner . During the proce eding s, Daniel W. Hamill, Ph.D., a psy cholog ical expe rt , co n firmed Stankoski’s major depre ssion, single episode. Dr. Hamill, howeve r, did not believe that Stankoski’s mental impairment rose to the level of a disability under the Social Security standards. He based his conclusion, i n part, on Stankoski’s modera te s core on her globa l assessment of function, which is inconsistent with “marke d” impairment. 1 During the proce eding s, Melissa Neiman M.D., a medical expert, opined that none of Stankoski’s p h y s i ca l impairments rose to the level of any listi ng for presumptive disability
. She testified t hat S tankoski could perf orm light leve l work ac tivity that excluded cra

wling, crouc hing, kneeling , heig hts, ropes, sca ffolds, ladde rs, exposure to heig hts, or use of da ng erous mac hinery
. After consideration of the evidenc e, the AL J conclude d that Stank o s k i wa s not disabled within the meaning of the Social Security Act. Stankoski appea led the AL J ’s decision deny ing her application for social secur ity disability insurance benef its. The district court adopted the mag istrate
The term “mar

ked” is a standard for mea s u ri n g t he deg ree of limit ation. Marke d means 1 more than mode rate but less than ex treme. A marked limitation may arise w hen seve ral a ctivities or functions are impaired, or even when only one is impaired, so long as the deg ree of limit ation is such as to interfe re seriously with the abili ty to function independe ntly , appropr iately , eff ectively , and on a sustaine d basis. See 20 C.F.R. §§ 404.1520a and 416.920a
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. judge ’s repor

t and rec ommendation aff irming the Commi ssioner of Soc i al Security ’s decision. Stankoski now appea ls.
II. On appe al of a

denial of be nefits, we conduct a de novo revie w of the di strict court’s leg al conclusion that the AL J ’s dec ision was supported by substantial evidence
. Johnson v. Comm’r of Soc. Sec. , 652 F.3d 646 (6th Cir. 2011); s ee a l s o Bass v. McM

ahon , 499 F.3d 506, 509 (6th Cir. 2007). “Substantia l evidence is more than a scintilla but less than a preponde ranc e; it is such rele vant evidenc e as a

rea sonable mind might a cce pt as adequa te to suppor

t a conclusion.” Vance

v. Comm’r of Soc. Sec. , 260 F. App’x 801, 803 (6th Cir. 2008) (quoting Cutli p v. Sec’ y of Health & Human Servs. , 25 F.3d 284, 286 (6th Cir. 1994)). We, howeve r, will not try the case de n o vo , resolve conflicts in evidenc e, or decide questions of cre dibilit y . Smith v. Halter , 307 F.3d 377, 379 (6th Cir. 2001). R ather , we “must aff irm the Commis sioner’s c onclusions absent a de termination t h at t h e C ommissi oner has failed to apply the correc t leg al s tandar ds or has made findings of fa ct unsupported by substantial evidenc e in the rec ord.” Vance , 260 F. App’x at 803 (quoting Longwort h v. C omm’r of Soc. Sec. , 402 F.3d 591, 595 (6th Cir. 2005)). A review of the record d em o nstrates that the AL J ’s upholding of the Commi ssioner’s decision was adequately supported by substantial evidenc e. Stankoski arg

ues that the AL J made sever al err ors in disposing of the case at step five of the sequential evalua

tion proce ss presc ribed by 20 C.F.R. § 404. 1 520, contending that the AL J : (1) made
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. err ors of fac t and law in evalua ting the medical and vocational evidenc e; (2) er re d i n ev aluating Stankoski’s nervous and mental impairments; (3) err ed reg arding Stankoski’s subjective complaints and the cre dibilit y finding ; and (4) found that Stankoski could perf orm jobs th at ex cee d her capa biliti es. We must decide whether , under 42 U.S.C. § 405(g ), substantial evidenc e supports the AL J ’s dec ision.
Stankoski arg

ues that the AL J said that he relied on “objec tive medical evidenc e” in dealing with Stankoski’s complaints rela ting to fibromy alg ia, which does not have objective finding s except the familiar trig g er points. She al s o arg ues that the AL J should not have relied on Dr. Neiman, a
neurosur g eon, when fibromy alg ia falls to the specia lty of rheuma tology
. And Dr. G rodner opined that she would have difficulty doing most ty pes of phy sical activity
. I t bear s noting, as we have on
ear lier occa sions, that in many case s wher e a claimant bases an alleg ation of disability on a diag nosis of fibromy alg ia, difficulty arises over the lack of objective finding s, beca use that ailment is difficult to corr elate with objectively observa ble, phy sical manifestations. See, e.g., Preston v. Sec’ y of Health & Human Servs. , 854 F.2d 815, 817-18 (6th Cir. 1988) (obser ving that, “[a]s set forth in the two medical journal article s . . . fibrositis cause s sever e musculoskeletal pain which is acc ompanied by stiffness and fatig ue due to sleep disturbance s. . . . [I ]t is a proce ss of diag nosis by exclusion and testing of cer

tain ‘foc al tender points’ on the body for acute tender ness which is char acte ristic in fibrositis patients”); Cla r k v. A et n a Life Ins. Co. , 395 F. Supp. 2d 589, 609 (W.D. Mich. 2005) (citing Gaffney v. Comm’r of Soc. Sec. , 277 F. Supp. 2d 733, 736 (E.D. Mich. 2003)); see also Rogers v. Comm’r of Soc. Sec. , 486 F.3d 234, 243 (6th Cir. 2007). But a diag nosis of fibromy alg ia
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. does not equate to a finding of disability or an entitlement to benef its. Vance v. Comm’r of

Soc. Sec. , 260 F. App’ x 801, 806 (6th Cir. 2008).
Th e A L J to o k in

to a c c o u n t th e o b je c ti v e medical evidenc e conce rning Stankoski’s limit ations when determining her residual functional capa city to perf orm work. Residual functional capac ity is an “asse ssment of [t he claimant’s] rema ining capa city for work,” once her limit ations have been considere d. 20 C.F.R. § 416.945(a)
. I t is meant “to descr ibe the claimant’s residual abilities or what the claimant can do, not what maladies a claimant suffe rs from — though the maladies will cer tainly inform the AL J ’s conc lusion about the claimant’s abilities.” Howard v

. Comm’r of Soc. Se c., 276 F.3d 235, 240 ( 6th Cir. 2002). Stankoski arg ues that Dr. N eiman’s assessment that Stankoski only had mild deg ener ative chang es in her lower back was fac tually incorre ct. Stankoski also quibbles with the order in which the AL J hear d testimony
. Both of these arg uments are unavailing
. Whil e there is objective medical evidenc e that demonstrates Stankoski suffe red from back impairments, there is also ample evidenc e to support the AL J ’s co n clusion that Stankoski’s back impairments did not result in limit ations bey ond her capa city to perf orm a li mited rang e of light work. For example, Stankoski underw ent
numerous imag ing scans, but none of the imag ing results demonstrated that Stankoski’s back impairments wer e debilitating. Moreove r, Stankoski admitted that she did not fee l that her back pain
war rante d a surg ical proce d u re . As such, she opted for less invasive epidura l injections and pain manag ement ther apy

and the r ecor d sug g ests that Stankoski responded we ll to these treatments.

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. Stankoski also arg ues that her mental impairments are more limit ing than t h e AL J ’s conclusions show. Stankoski claims that they aff ect her on a daily basis, evidenc ed by cry ing spells and low ener g y . Yet there is no objective medical evidenc e to support these complaints. See Jones

v. Comm’r of Soc. Sec. , 336 F.3d 46 9 , 4 7 5 (6 t h C i r. 2003) (“The re is no question that subjective complaints of a claimant can support a claim for disability , if there is also objective medical evidenc e of an unde rly ing me dical condition in the record.” ) An AL J is not require d to acc ept a c laimant’s subjective complaints and “may proper ly consider the cre dibilit y of a cl ai m ant” when making a deter mination of di s ab i l i t y . W a l ters v. Comm’r of Soc. Sec. , 127 F.3d 525, 531 (6th Cir. 1997). Stankoski essentially asks this court to delve into a cre dibilit y deter mination, and we simply will not decide questions of cre dibilit y . See Halter , 307 F.3d at 379. There is ample evidenc e in the rec ord to support the Commi ssioner’s finding that Stankoski’s mental impairments did not compromise her ab i l i t y to perf

orm a rang e of semi-skilled work outlined by the AL J
. For example, Stan k o s k i achie ved a modera te g lobal function assessment, she was able to drive herse lf to her appointments, and she benef

itted from m ental health counseling but chose to stop g oing to counseling only afte r her husba nd’s insuranc e cove rag e cha ng ed.
Stankoski arg

ues that the AL J g ave g rea ter weigh t t o t h e fi ndings of Drs. Neiman and Hammil compar ed to Stankoski’s trea ting phy sicians and that the AL J failed to specify the amount
o f weight g iven. “Ge nera lly , the opinions of trea ting phy sicians are g iven substantial , i f n o t controlling , defe renc e.” W arner v. Comm’r of Soc. Sec. , 375 F.3d 387, 390 (6 t h Cir. 2004). Howeve r, “tre ating phy sicians’ opinions are only g iven such defe renc e when supported by objective
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. medical evidenc e.” Id. (citing Jones , 336 F.3d at 477). None of Stankoski’s t re at i n g phy sicians opined that any of Stankoski’s ailments wer e debilitating. I n fac t, her trea ting phy sicians’ opinions
are in alig nment with the AL J ’s decision. And even if th ey wer e not, “[t] he deter mination of disability is [ul timately ] the prer og ative of the [C ommissi oner], not the trea ting phy sician.” Vance , 260 F. App’ x at 804 (quoting Harris v. Hec kler , 756 F.2d 431, 435 ( 6th Cir. 1985). Stankoski arg ues that her

job skill s are not transfe rable
. This arg ument, howeve r, was not raised befor e the district court and there fore is forf eited. See Ealy v. Comm’r of Soc. Sec. , 594 F.3d 504, 513 (6th Cir. 2010). Stankoski also arg ues that the AL J err ed by finding that she could perf orm semi-skilled jobs while at the s am e time finding that she was limit ed to unskilled work. This arg ument is without merit beca use t he AL J ’s decision does not lim it St ankoski to unskilled work. For example, the residual functional capa city assessment did not limit Stankoski to unskilled work and none of

the medica l opinions of recor d limit ed Stankoski to unskill ed wor k.
III. There is ample evidenc e in the rec ord to support the Commi ssioner’s finding that none of Stankoski’s impairments wer e disabling in the Social Security context. See Vance , 260 F. App’x at 803. For this reason, we AF F IRM
.

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