NOT RECOMMENDED F OR P UBLICATION File Na me: 12a0821n.06 No. 11-3981 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

NI COL E A. TORRES, Plaintiff-Appellant,

v. COMMI SSI ONER OF SOCI AL SECURI TY, Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE SOUTHERN D I STRI CT OF

OHI O

Be fore : SI L ER and MOORE, Circuit J udg es; VAN TA TENHOV E, District J udg e. * SILE R , Circuit J udg e. Nicole Torre s challeng es the final decision of an administrative law judge (“A L J ”) de n

y in g her application for disability insurance benef its based on fibromy alg ia, lupus, and other impairments. The district court aff irmed, con cluding that the AL J ’s decision was supported by substantial evidenc e in the rec ord. Be cause the AL J applied corr ect leg al standards and

rea ched a decision s u p ported by substantial evidenc e, we AF F IRM the judgme nt of the district
court. I. Torre s has previously wo r k e d a s a c a shier, office cler k, secr etar y , rec eptionist, administrative assistant, and a telephone opera tor for v ar i ous employ ers since 1988. She claims that she suffe rs

T h e Honora

ble Gre g ory F. Van Tatenhove , United States District J udg e for th e E as t er n * District of Ke ntucky , sitti ng by desig nation.from sev er al s ev ere impairments that have preve nted her from eng ag ing in substantial g ainful

employ ment since 2001. A. Medical History from Onset of Disability to Date Last Ins ured Torre s has seen a number of phy sicians re g arding her impairme nts since 2001. Dr. Vivian Perez-McA rthur, an osteopathic phy sician, trea ted Torre s on a reg ular basis from 2002 to 2004. Dr. McArthur d iag nosed Torre s with depre ssion, g ener ally confirme d the sy mptoms of lupus and fibromy alg ia, and presc ribed numerous medications including Pa xil for depre ssion and Plaquenil for lupus. Dr. J ennife r M. Richardson, a rheuma tologist, indicated that she t rea ted Torres from 2001
to 2004. Over the course of t re at m ent, Dr. Richardson continuously noted sy mptoms consistent 1 with lupus and fibromy alg ia, as well as fatig ue, depre ssion, poor sleep, mouth a nd head sores, and “pain all over.” Her g ener al course of trea tment was to continue Plaquenil, but eventua lly switched Torre s over to steroids. By Marc h 2005, Dr. Richardson opined that Torre s’s lupus was “not active” and continued the g ener al plan of tre atment. By the end of t he y ear Dr. Ri char dson indicated that Torre s “wa s actua lly

doing w ell lately .” I n 2005, Dr. J ohn C. Khol, a chiropra ctor, trea t ed Torre s for back, hip, neck pain, and heada ches. Dr. Khol indicated that Torre s self-r eporte d a “60% overa ll sy mptomatic improvement” aft er t re atm ent. His rec ommended trea tment plan included chiropra ctic manipulation, thera py , exercise, massa g e, modifica tion of daily activities, and home ma

nag ement.

Torre s herse lf indicates that she first saw Dr. Richardson in 2 0 0 2

. T h e re cord contains Dr. 1 Richardson’s pr og ress notes star ting only in 2003. - 2 -I n 2004, Dr. David H. Weaver , a consulting psy cholog ist, conducted a psy cholog ical

disability assessment repor t on Torre s. He conclude d Torres ’s “mood disorder may worsen her chronic medical conditions” and she “sh o ws grea t introversion, anxiety , and trauma signs.” Ultimately , Dr. Weaver found that her ability to understand, reme mber, and follow instructions did
not seem impaired. But her ability to maintain attention, pace , and persistenc e seeme d modera tely impaired. Thus, he opined that Torre s’s “ability to w ithstand the stress and pressure of day -to-day work seems modera tely to ma rkedly impaired.” Also in 2004, Dr. Steven J

. Mey er, a state ag ency psy cholog ist conducte d a psy chiatric revie w and r esidual functional capa city (“RF C”) assessment

on Torre s. Dr. Mey er opined that Dr. Weaver ’s “conc lusions are somewhat more limit ing than noted in [t he] body of [hi s] exam or [] other source s.” Dr. Mey er found Torre s to be “[c]apable of routine work, that [ she] is motivated to perf orm, in settings with occa sional intermittent interactions with others and f

ew c hang es.” Torre s’s insured status expired on J une 30, 2005, whe n she wa s 35 y ear s old. B. Medical History Post-Date Last Insur ed Torre s continued to see Dr. Richardson in 2006 for follow-ups, and Torre s re q u es t ed Dr. Richardson’s opinion on filing for disability

. A handwr itten response rea ds, “I would not encour ag e it. [A] nd it can [i lleg ible].” By J uly 2006, Dr. Richardson ag ain noted that Torre s “ha[d] been doing well lately ” and he r blood work wa s “fa irly normal.” D espite complaining of “a lot of pain in her back,” Torre s’s condition was improving overa ll and she wa s working out at “Curves.” I n J anuar y 2007, Dr. Kevin V. Hack s h aw , a rheuma tologist, examined Torre s for the first time. He g ener ally confirme d Dr. R ichar dson’s finding s and Torre s’s history of illness rela ted to lupus and fibromy alg ia. Howeve r, his g ener al impression was that “if [Torres] is looking for part-

- 3 -time wor k an d [Family and Medical L eave Act (“FML A”) ] is allowed, then she shoul d be able to

at least hold some par

t-time position.” I n September 2007, Tor res c omplained that her

sy mptoms

wer e g etting worse, but she was not taking her presc ribed medication. Dr. Hac kshaw noted “18/18 tender point sites, consistent with f ibromy alg ia,” and pre scribed L y rica and Da rvoce t. From 2007
to 2008, Torre s saw Dr. Mary Grulkowski, a family prac tice phy sician, who confirme d that Torre s was diag nosed with fibromy alg ia in April 2002 and was inca pacitate d from this chronic c ondition twice a month for two to three day s at a time. I n J anuar y 2008, Dr. Her b er t A. Grodne r, a consulting phy sician, examined Torre s for a disability evalua tion. He noted that Torre s was diag nosed with sy stemic lupus and fibromy alg ia but had not been taking her presc ribed Plaquenil. Dr. Gr o d n er conclude d that Torre s would have problems wit h repe titive weight b ea ri ng and repetitive activity in a sedentary position. Howeve r, he did state that she could perform some se dentar y activity or lig ht intermittent activity if she wa s in an erg onomically optimal position. He also stated that Torre s cou l d sit, stand, and walk thirty minutes without interruption, sit and stand for four hours eac h in an eig ht hour work day , and walk for two hours in an eig ht hour work day

. Ultimately , Dr. Grodne r opined that Torre s “could perf orm short intervals of a varie ty of activities, but these would depend on how sustained these activities

wer e and also how repe titive they wer e as well as the time from which she was perf orming [t hem].” I n Fe bruar

y 2008, Dr. Marg are t G. Smit h, a consulting psy cholog ist, conclude d that Torre s’s depre ssion and anxiety may : mildly to modera tely impair her ability to rela te to others; modera tely impair her ability to unde rstand and follow instructions; modera tely to marke dly impair her ability
to maintain attention, conce ntration, persistenc e and pace to perf orm routine tasks; and modera tely to markedly

impair her a

bility to withstand stress and pre ssures assoc iated with day -to-day work.

- 4 -C. Procedural Background

Upon Torre s’s application for disability insurance benef its in 2001, AL J Paul R. Armstrong ruled that Torre s was not entitled to disability insurance benef its. The SSA Appea ls Council vacated the hea ring decision and r emande d the ca se. On rema nd, the AL J conducte d a more thoroug h revie w of the evidenc e but conclude d that Torre s was not “under a ‘disability ,’ as define d in the Social Security Act, at any time from April 1, 2001, the alleg ed onset da te, throug h J une 30, 2005, the date la st insured [] .” The AL J found that Torre s had “seve re impairments” of lupus, fibromy alg ia, irritable bowel sy ndrome, depre ssion, and anxiety

. Howeve r, the AL J found that the impairments did not rea ch t h e level of sever ity contemplated by 20 C.F.R. §§ 404.1520(d), 404.15 2 5 an d 4 0 4.1526. At the hear ing, Dr. Ashok J ilhewal, a medical expert, testified that Torre s “re tained the [R FC] to perf orm sedenta

ry activity ” as defined i n 20 C.F.R. § 404.1567(a) with limit ations. Susan Etenber g , a vocational expert, also testified at the hear ing stating that “[Torres] reta ined the [R FC] to perf orm sim p l e u nskilled sedenta ry work.” Ultimately the AL J held that althoug h Torre s was unable to perfo rm h er p ast rele vant work, she still had the RFC to perf orm sedenta

ry work. Thus, Torre s was n o t d isabled within the meaning of the Social Sec urity Act. The SSA Appeals Council denied her appea l. Torre s soug ht revie w of the Commi ssioner’s final decision in fede ral district court, and the
mag istrate judge enter ed a Report and Recommenda tion (“Repor t”) that the AL J be reve rsed and the

case be rema

nded for an awa

rd of benef

its. Howeve r, the district court declined to follow the Report, holding that “the Commi ssioner’s final dec i sion [was] supported by substantial evidenc e in the

rec ord as a

whole and must be a ffirme d.”

- 5 -II.

T o rr es ar gu es that the district court err ed when it conducte d a full de novo revie w of the Report even though t h e Commi ssioner onl y filed specific obj ections t o the remedy rec ommended by the mag istrate judge (i.e. reve rsal for an awa rd of benef

its rather tha

n a re mand). Whil e Torre s is corre ct that the Commissi oner only objected to the r emedy , her a rg ument lacks mer it. We require that “a party

. . . file objections [t o the mag istrate judge ’s repor t] with the district
court or else waive right t o appea l.” See United St ates v. W alters , 638 F.2d 947, 949-50 (6th Cir. 1981). I n Thomas v. Arn , 474 U.S. 140 (1985), the Supreme Court found this waive r rule constitutional, holding “that a court of appea ls may adopt a rule conditioning appeal , wh en taken from a district cour t j u d gm ent that adopts a mag istrate’s rec ommendation, upon the filing of objections with the district court identify ing those issues on which further revie w is desired.” Id. at 155. Although a district judge is not require d to revie w an issue de novo if no objections are filed, Arn makes clea

r that nothing “pre clude[s] further revie w by the district judge , sua sponte or at the
reque st of a party , under a de novo or any other standard.” Id. at 154. There fore , the district court did not err in conduc ting a full de novo revie w in this case.

III. A district court’s decision in a disability case is revie wed de novo . Valley v. Comm’r of Soc. Sec. , 427 F.3d 388, 390 (6th Cir. 2005)

. The Commi ssioner’s conclusions will be upheld absent a deter mination that the AL J failed to apply the corr ect leg al standards or made find i n gs o f fa ct unsupported by substantial evidence i n t he rec ord. 42 U.S.C. § 405(g ); W hite v. Comm’r of Soc. Sec. , 572 F.3d 272, 281 ( 6th Cir. 2009).

- 6 -I n analy zing Torre s’s disability claim, the AL J followed the five-ste p sequential evalua tion
proce ss descr ibed in 20 C.F.R. § 416.920. Torre s arg ues that the AL J improperly acc orded less weig ht to her trea ting phy sicians, improperly relied on objective medic al evidenc e and disc ounted her subjec tive complaints in evaluating fibromy alg ia, and e rre d in his credibility deter mination. A. The ALJ adequately weighed the opinion s of the m edical expe rts I n evalua ting Torre s’s claim and settling on the RFC and disability deter minations, the AL J

acc orded “substantial weig ht” to the opinions of Dr. J ilhewal, a non examining source , “some

we i gh t ” t o the opi nions of Drs. Smit h and Grodner, ex amining sources, and “less weight” to Drs

. Richardson a

nd Hac kshaw, Tor

res’ s treating

phy sicians. 2
An AL J will g ener ally “g ive more weig ht to opinions from

. . . trea ting source s, since these

source s are likely to be the medical profe ssionals most able to provide a detailed, longitudinal picture of [a claimant’s] medical impairment(s).” 20 C.F.R. § 404.1527(c) (2). An AL J is require d to “g ive
g ood rea sons in [t he] notice of deter mination or decision for the weig ht [given to] trea ting source ’s opinions.” Id. The AL J expli citly acc orded less weig ht to Drs. Richardson an d Hac kshaw, Torre s’s supposed trea ting phy sicians, than to other examining and non-examining source s. He discussed the

The g overnme nt corr ectly arg ues t hat Dr. Hac kshaw’s 2007 opinion should not qualify for any 2 specia l considera

tion. Although Dr. Hackshaw may have become Torre s’s trea ting phy sician at a later t i m e, his 2007 opinion was g iven afte r the very first meeting with Torre s. As one visit is insufficient to establish a trea ting rel at i o n s hip, Dr. Hac kshaw’s 2007 opinion should not be considere d a trea ting source ’s opinion. See Kornecky v. Comm’r of Soc. Sec. , 167 F. App’x 496, 506 (6th Cir. 2006) (“The question i s wh ether [t he phy sician] had the ong oing rela tionship with [t he claimant] to qualify as a t re at ing phy sician at the time he rendere d his opinion .” (empha sis in orig inal)). Be cause the AL J considere d Dr. Hac kshaw to be a trea ting source , howeve r, and beca use the AL J ’s decision is supported by substa n ti a l e v id e nce reg ardle ss of Dr. Hac kshaw’s cate g orization, we a ssume for the sa

ke of a rg ument that Dr. Ha ckshaw can be considere d a tre ating phy sician. - 7 -opinions of the medical source s and the weig ht aff orded those opinions over four pag es in his decision. He briefly discussed the opinions o f t h e trea ting phy sicians, focusing on the fac t that,

acc ording to the AL J , they both “conside red the claimant able to hold at least a part-time position.” The discussion of the trea ting phy sicians’ opinions conclude s with the following explanation: “The

rec ord does no t , h o we v er , include any opinion from Dr. Hac kshaw or Dr. Richardson of what functions the claimant would or would not be able to pe rfor m that provide the underly ing basis for their opinions. There fore , their opinions are acc orded le ss weig ht.” The rea sons-g iving require ment require s the AL J to actua lly state his rea sons for discounting
trea ting source s’ opinions. See Smith v. Comm’r of Soc. Sec. , 482 F.3d 873, 875-76 (6th Cir. 2007). Whil e the AL J ’s explanation is short and somewhat lacking in specific ity and thoroug hness, in this

case it complied with the rea sons-g iving r equire ment. Moreove r, the AL J ’s decision to aff ord less weig ht to Drs. Richards o n an d Ha ckshaw is supported by substantial evidenc e. As the AL J explained in the short statement, the trea ting
p h y s i cians’ opinions expressed very littl e about Torre s’s actua l functional capa city

. The rec o rd includes many prog ress repor ts noting her subjective complaints, order ing medication or more tests, and rec ommending exercise or other trea tment options, but these opinions do not nece ssarily speak
to her functional capa city

. I n fac t, it seems the AL J g ave substantial weig ht to much of this evidenc e from the trea ting source s beca use the AL J ag ree d with the trea ting phy sicians as to their diag noses of Torr es and the exis tence of seve ral seve re impairme nts. T h e v as t m ajorit y of the opinions expressed by both trea ting and examining source s i s consistent with the RFC deter mination. Torre s focuse s on Dr. Hac kshaw’s opinion that “if [Torres] is looking for part-time work and [FML A] is allowed, then she should be able to at least hold some

- 8 -part-time position.” This opinion is not nece ssarily inconsistent with the ALJ ’s final

deter minati o n –under one rea ding of this statement, Dr. Hac kshaw is simply pointing out Torre s’s minimum capa city rathe r than her ceiling (she can at least do part-time work and perha ps full-time). For these rea sons, the AL J ’s decision is consistent with the majority of the phy sician opinions, and the deter

mination re gar d i n g t h e weig ht to be g iven to eac h opinion is supported by substantial evidence

. B. The ALJ’s RFC determ inati on is su pported by substant

ial evidence Torres arg ues that the AL J err ed in placing too much importance on objective medical evidenc e in making the disability deter mination becau s e fibromy alg ia does not lend itself to objective measure ment. Torre s points to Rogers v. Comm’r of Soc. Sec. , 486 F.3d 234, 243-44 (6th Cir. 2007) , for the proposition that, “unlike medical conditions that can be confirme d by objective testing, f ibromy alg ia patients pre sent no objectively alar ming sig ns.” The AL J ’s decision in this case di d n ot run afoul of the principles reg arding objective evidenc e of fibromy alg ia that wer e expressed in Rogers

. I n Rogers , the court held that the AL J err ed in failing to find the claimant’s fibromy alg ia t o be a sever e im pairment. Id. at 245-46. The court explained that,“in light of the unique evidentiar y difficulties associate d with the diag nosis and
trea tment of fibromy alg ia, opinions that focus solely upon objective ev i d ence are not particula rly rele vant” to the disability deter mination. Id. Torre s’s arg ument , h o we v er, ignor es an important distinction betwee n, on one hand, diag nosing fibromy alg ia and finding it to be a sever e impairment and, on the other, assessing a claimant’s phy sical limit ations due to the impairment. The AL J relied

on Torre s’s subjective complaint s and the opinions of her trea ting phy sicians in finding her fibromy alg ia to be a sever e impairment. Howeve r, “a diagnosis of fibromy alg ia does not

- 9 -automatically entitle [Torres] to d i s ab i l i t y b enefits.” See Vance v. Comm’r of Soc. Sec. , 260 F.

App’x 801, 806 (6th Cir. 2008) (emphasis in orig inal) (citing Sarchet v. Cha t er , 78 F.3d 305 (7th Cir. 1996), for the proposition that “[s] ome people may have a sever e case of fibromy alg ia as to be totally disabled fr om working . . . but most do not a nd the question is w hether [claimant] is one of the minority .”). Substantial evidence supports the AL J ’s RFC and disability deter minations. As ex plained above, the RFC and the limit ations imposed are consistent with the majori t y o f t h e opinions expressed by both trea ting and examining source s. Torre s periodica lly suffe red pain and fatig ue but her sy mptoms often improved with medication and tre atment. The AL J relied o n T orre s’s ability to perf orm “ac tiviti es of daily living” and ot her actions in evalua ting her functional ca p ac i t y . The AL J also examined the evidenc e from mental health experts and included in the RFC a limit ation that Torre s perf orm only simple, unskilled work. Along with Dr. J ilhewal’s testimony that Torre s could perf orm sedenta

ry work consis t en t with the limit ations expressed in the RFC, the rec ord contains “‘suc h rele vant evidenc e as a rea sonable mind might acc ept as adequate to support a conclusion’” that Torre s is not disabled. See W hite , 572 F.3d
at 281 (quoting Richardson , 402 U.S. at 401). Whil e the rec ord contains conflicting evidenc e that would sug g est further limit ations, under the substantial evidenc e standard, “administrative finding s ‘ar e not subject to reve rsal mere ly beca use substantial evidenc e exis ts in the rec ord to support a differ ent conclusion.’” Id. at 281 (quoting Felisky v. Bowen , 35 F.3d 1027, 1035 (6th Cir. 1996)). C. The ALJ’s credibility determin ation i s support ed by substantial

evide nce Torre s additionally arg ues that the AL J err ed in finding Torre s incre dible with reg ard to the

sever ity and fre quency of her impairments and limit ations. I n making a disability deter mination, the

- 10 -AL J is require d to “conside r all [t he claimant’s] sy mptoms, including pain, and the extent to which [t he] sy mptoms can rea sonably

be ac cepte d as consistent with the obj ective medical evidence and other evidenc e.” 20 C.F.R. § 404.1529. “Credibility dete rm inations with respe ct to subjective complaints of pain rest with the AL J ,” Allen v. Comm’r of Soc. Sec. , 561 F.3d 646, 652 (6th Cir. 2009) (i nterna l quotation marks and altera tions omitted), and “an AL J ’s finding s based on the

cre dibilit y of the applicant are to be acc orded g rea t weig ht and defe renc e, particula rly since an AL J is char g ed with the duty of observing a witness’s demea nor and cre dibilit y ,” W

alters v. Comm’r of Soc. Sec. , 127 F.3d 525, 531 (6th C ir. 1997). After explaining that Torre s testified that her impairments wer e sever e and prec luded her from competitive employ ment, the AL J conclude d that “[Torres’ s] subjective alleg ations are not entirely supported by the totality of the medical evidenc e.” The AL J ’s conclusion is supported by substantial evidenc e. Torre s’ s te s ti mony reg arding her

sever e and debi li ta

ti n g p a in c o u ld r e a sonably be considere d inconsistent with the testimony of cer tain phy sicians, including Dr. J ilhewal, who revie wed the entire rec ord and testified that Torre s could
p er form full-time work with cer tain limit ations. More importantly , Torre s’s alleg atio n s o f impairments could be considere d inconsistent with her own testimony about the daily activities she is able to perf

orm. These inconsistencies provide substantial evidenc e for the AL J ’s deter mination that Torre s was not completely cre dible. AF F IRMED.

- 11 -