NOT RECOMMENDED FOR PUBLICATION File Name: 17a0540n.06
No. 17-1237

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT MARGARET L. SHEPARD, Plaintiff-Appellant,

v. COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

BEFORE: MERRITT, MOORE, and ROGERS, Circuit Judges. ROGERS, Circuit Judge. Margaret Shepar d appeals the district court’s decision to uphold the final decision of th e Commissioner of Social S ecurity denying her claim for Disability Insurance Benefits under Title II of the Social Security Act. Shepard contends that the Commissioner failed to assess her claim in accordance with the relevant Social Security Rulings. However, substantial evidence demonstrates th at the Commissioner’s d ecision comported with all relevant rulings. Shepard also argues that the Commissioner failed to give proper weight to her testimony and the opinion of he r treating physician. These clai ms also fail because there is substantial evidence to support the Commissioner’s decision to discount the weight of this evidence. Finally, Shepard cont ends that there is not substa ntial evidence to support the Commissioner’s residual functional capacity determination. However, there is substantialNo. 17-1237, Shepard v. Comm’r of Soc. Sec.

-2- evidence in the record to suppor t the Commissioner’s assessment. The district court, therefore, properly upheld the Commissioner’s decision to deny Shepard’s Social Security Disability claim. Margaret Shepard was born in March 1959. She has a high school education, and past work experience as a mail carrier. Beginning in the early 2000’s, Shepard sought treatment for bilateral carpal tunnel s yndrome and reflex sympathetic dystr ophy (“RSD”). At that time, Dr. Narin Tanir became Shepard’s primary physician, treating Shepard’s carpal tunnel and RSD as well as her other medical issues including obesity, depression, fa tigue, and degenerative disc disease. Shepard continued to see Dr. Tanir fo r these various medical issues through June 28,
2014. On July 14, 2010, Shepard filed an application fo r disability insuranc e benefits, alleging disability beginning on January 30, 2002 through June 30, 2007, her date last insured for benefits. The State agency responsible for revi ewing her application denied Shepard’s claim, and she requested a hearing before an ALJ. Following a hearing, the ALJ denied Shepard’s claim, and the Appeals Council deni ed review. On judicial review , the district court determined that the ALJ’s decision was not supported by substantial eviden ce and remanded the case to the Social Security Administration. Shepard v. Colvin , No. 12-CV-14386, 2013 WL 6062006, at *6 (E.D. Mich. Nov. 18, 2013). In accordance with the district court’s order, the Appeals Council vacated the Commissioner’s decision and remanded the case for further proceedings. Shepard’s second administrative hearing was held on October 9, 2014 before a differe nt ALJ. At the hearing, both Shepard and a vocational expert te stified. Shepard also amended her alleged disability onset date to June 1, 2007.No. 17-1237, Shepard v. Comm’r of Soc. Sec.

-3- The ALJ’s December 31, 2014 written opinion conc luded that Shepard was not disabled from June 1, 2007, her amended alleged onset date, through June 30, 2007, her da te last insured. The ALJ determined that Shepard retained the re sidual functional capacity (“RFC”) to perform: light work as defined in 20 CF R 404.1567(b) with the following: She would require a sit/stand optio n, at will, and would not take her off task more than 10%. She could never climb ladders, ropes or scaffolds; occasionally clim b ramps and stairs, stoop, kneel, crouch, crawl, and balance. She co uld occasionally handle, finger and feel bilaterally with upper extremities; would have to avoid exposure to hazards such as unprotected heights, moving mechanical parts, and operating motor vehicles. She can perform simple, routine tasks; no contact with the public; and only occasional changes in the work setting. This conclusion was based on the ALJ’s review of the medical reports, testim ony, and opinion evidence in the record. During her review of the record, the ALJ determined that Shepard’s statements concerning the limiting effects of her sy mptoms were “not entirely credible” and that an assessment by Dr. Tanir that Shepard was unable to perform “light” or “sedentary work” should be afforded “little weight.” Finally, based on the ALJ’s RFC findings and the vocational expert’s testimony that Shepard could work as a machine tender, with 101,000 such positions existing in the national economy, the ALJ conc luded that Shepard was capable of making a successful adjustment to work that exists in significant numbers in the national economy. The Appeals Council denied Shepard’s subseq uent request for review, making the second ALJ’s decision the Commissioner’s final decision. Shepard again sought ju dicial review. This time, the district court uphe ld the Commissioner’s decision. The district court rejected Shepard’s argument that the ALJ erred in determining Shepard’s RFC. First, the court concluded that the ALJ in the remanded proceedings was not bound by the RFC from the initial ad ministrative decision because “the only final decision by the Commissioner in this case is [the] December 31, 2014 decision,” and the di strict court decisionNo. 17-1237, Shepard v. Comm’r of Soc. Sec.

-4- remanding the case to the Commissioner “expressl y directed the Commissioner to ‘reconsider the RFC.’” Shepard v. Comm’r of Soc. Sec. , 2017 WL 104095, at *4 (W.D. Mich. Jan. 11, 2017). Moreover, the court observed that the A ppeals Council’s remand or der and the decision of the prior district court make clear “that th e prior ALJ got it wrong.” Next, the district court determined that the substance of the ALJ’s RF C was supported by substantial evidence. The court held that “[t]he ALJ provided a thorough an d accurate discussion of the medical evidence,” and cited medical reports that Shepard’s pain wa s “relatively stable and was under ‘satisfactory control’ so long as she limited any repetitive activity.” Id. at *5. The district court also held that substant ial evidence supported the ALJ’s decision to discount Shepard’s testimony and Dr. Tanir’s opinion regarding Shepard’s ability to work. Id. at *7–8. The district court conclude d that the conservative nature of Shepard’s treatment, the relatively effective of control of her symptoms with pain medication, and Shepard’s daily activities all supported the ALJ’s determinatio n that Shepard’s testimony about the limiting effect of her symptoms was “not entirely credible.” Id. Finally, the district court concluded that the medical evidence in the record cited by the “ALJ provided good reasons, supported by substantial evidence, for assigning lit tle weight” to Dr. Tanir’s opinion. Id. at *5–7. This appeal followed. Shepard alleges that the ALJ’s decision erred in four respects: (i) the ALJ failed to properly apply Social Security Ruling 03-2p (“SSR 03-2p”), whic h describes the process for evaluating cases involving RSD, when determini ng the effect of RSD on Shepard’s ability to work; (ii) the ALJ lacked s ubstantial evidence for disco unting Dr. Tanir’s opinion about Shepard’s ability to perform “light” or “sedenta ry work;” (iii) the ALJ’s determination that Shepard’s statements concerning the limiting eff ects of her symptoms were “not entirelyNo. 17-1237, Shepard v. Comm’r of Soc. Sec.

-5- credible” is not based on substa ntial evidence; and (iv) the ALJ’s RFC determination is not supported by substantial evidence. None of these contentions warrants reversal. First, the ALJ properly app lied the sequential evaluation process required by SSR 03-2p to determine the effect of Shepard’s RSD on her ability to work. See SSR 03-2p, 2003 WL 22399117, at * 6 (S.S.A., Oct. 20, 2003). While Shepar d is correct that the ALJ’s decision does not explicitly cite SSR 03-2p, the decision clear ly comports with the five-step sequential evaluation process for RSD claims prescribed by the ruling. The seque ntial evaluation process is not particular to RSD claims; rather, “[c]laims in which the individual alleges RSDS/CRPS are adjudicated using the sequential process, just as for any other impairment .” SSR 03-2p, 2003 WL 22399117, at *6 (emphasis added). First, ALJ Holmes conclude d that the “record establishes that the claimant has reflex sympat hetic dystrophy,” after co nsidering “all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence.” Next, the ALJ determined that Shepard’s impairment was severe because it had “more than a minimal effect on the claimant’s ability to perform basic work-related tasks.” At step thre e, the ALJ determined that record evidence of Shepard’s “activities of daily living,” “social functioning,” “concentration, persistence or pace,” and “episodes of decompensation” demonstrated that her impairment was not equal in severity to any of the impairments listed in 20 CFR Part 404, Subpart P, Appendix 1. Shepard does not dispute these findings or argue that the ALJ failed to conduct these steps under SSR 03-2p properly. Instead, Shepard ar gues that, because the ALJ did not explicitly cite SSR 03-2p when assessing her RFC, there is not substantial evidence that the ALJ was aware of the unique characterist ics of RSD or the Administration’s policy for evaluating RSD claims. But once a diagnosis of RSD is found, the determination of whether someone is disabledNo. 17-1237, Shepard v. Comm’r of Soc. Sec.

-6- continues the same way it does “for any other impairment.” SSR 03-2p, 2003 WL 22399117, at *6; Combs v. Astrue , 243 F. App’x 200, 205 (8 th Cir. 2007). Indeed, SSR 03-2p’s guidance on assessing a claimant’s RFC mirrors the guidance provided by social security rulings for other medical disorders. Compare, e.g. , SSR 03-2p, 2003 WL 22399117, at *6 with SSR 12-2P, 2012 WL 3104869, at *6 (S.S.A. July 25, 2012) (both instructing adjudica tors to evaluate RFC under SSR 96-8p). The ALJ adhered to SSR 03-2p’s direc tives to “evaluate the intensity, persistence, and limiting effects of the individual’s symptoms to determine the extent to which the symptoms limit the individual’s ability to do basic work,” and consider “all of the individual’s symptoms . . . in deciding how such symptoms may af fect functional capaci ties.” SSR 03-2p, 2003 WL 22399117, at *6–7. Explicitly citing SSR 03-2p would not have substantively changed the ALJ’s analysis, and the fact that her inquiry actually comported with the dir ectives of SSR 03-2p is evidence that she was aware of the administ ration’s policy for evaluating RSD claims and applied that policy. It is also apparent that the ALJ was awar e of the unique characteristics of RSD and weighed those characteristics in determining Shepard’s limitations. As discussed above, the ALJ’s review of objective medical evidence, incl uding “all symptoms,” led the ALJ to conclude that Shepard’s RSD was a severe impairment. The ALJ could not have concluded that Shepard suffered from RSD and that her impairment was severe without being aware of the symptoms and character of the syndrome. Rather, the ALJ’s decision devoted a great deal of discussion to the medical evidence associated with Shep ard’s RSD, observing common symptoms and characteristics such as spontaneous pain and co ncerns about RSD “spread[ing] to other limbs, or to remote parts of the body,” SSR 03-2p, 2003 WL 22399117, at *1-2. Thus, the ALJ’s decision thoroughly considered RSD at each relevant stage of he r analysis. This is in stark contrast to theNo. 17-1237, Shepard v. Comm’r of Soc. Sec.

-7- case cited by Shepard, Miller v. Comm’r of Soc. Sec. , 811 F.3d 825 (6th Cir. 2016), where we found that the ALJ’s failure to discuss the claima nt’s obesity past step two and his reliance on a non-examining physician’s opinion “ cast[] additional doubt upon whet her there [was] substantial evidence” to support the ALJ’s decision. Id. at 835. The structure an d analysis in the ALJ’s decision demonstrate that she considered Shepar d’s RSD claim in conformance with SSR 03-2p. Second, although Dr. Tanir was Shepard’s tr eating physician, the ALJ had good reasons to discount his opinion because the conclusory opi nion was rendered more than seven years after the relevant period and it was inconsistent with substantial objective me dical evidence in the record. A treating physician’s opinion is typicall y afforded controlling weight under the treating physician doctrine, but the ALJ is permitted to di scount the weight given to a treating source’s opinion if the ALJ “provide[s] ‘good reasons’ . . . ‘supported by the evidence in the case record.’” Gayheart v. Comm’r of Soc. Sec. , 710 F.3d 365, 376 (6th Cir. 2013) (citations omitted). Here, the record demonstrates several instances in which Dr. Tanir’s medical records do not support the severity of the doctor’s opini on. Dr. Tanir noted, for example, normal gait and sufficient pain control with medication. More over, the ALJ cited treatment notes that often described Shepard’s upper and lower extremities as normal with occasional tenderness to the knee. Adjudicators must consider whether a me dical opinion is supporte d by the record and whether the opinion is consistent with the record as a whole. 20 CFR § 404.1527(c)(3), (4). The treatment notes from Dr. Tanir in the record cited by the ALJ demonstr ate that Dr. Tanir’s opinion could be denied cont rolling weight by the ALJ. The fact that there is some evidence in the medical records to support Dr. Tanir’s conclusion is not enough to overturn the agency. “The fact that a record may also possess substantial evidence to support a different conclusion than that reached by the ALJ or that aNo. 17-1237, Shepard v. Comm’r of Soc. Sec.

-8- reviewing judge might have decided th e case differently is irrelevant.” Crisp v. Sec’y of Health and Human Servs. , 790 F.2d 450, 452 n. 4 (6th Cir. 1986). “The findings of the Commissioner are not subject to reversal merely because there exists in the record substantial evidence to support a different conclusion.” Buxton v. Halter , 246 F.3d 762, 772 (6th Cir. 2001). Instead, our review is “limited to determining whethe r [the Commissioner’s de cision] is supported by substantial evidence and was made pur suant to proper legal standards.” Rogers v. Comm’r of
Soc. Sec. , 486 F.3d 234, 241 (6th Cir. 2007) (citations omitted). In this case, the medical evidence in the record cited by the ALJ demonstrat es that there was substantial evidence to find that Dr. Tanir’s opinion was inc onsistent with the case record. Dr. Tanir’s evaluation was also completed mo re than seven years after Shepard’s last insured date. Shepard argues th at the ALJ failed to observe that each page of Dr. Tanir’s evaluation states that its responses relate to Shepard’s “Condition On Or Before June 30, 2007.” But the ALJ’s decision never questioned whether Dr . Tanir’s evaluation related to the relevant period. Instead, the ALJ considered whether the retrospective evaluation , seven years after the fact, was reliable given that the “medical records from Dr. Tanir . . . provide little information or support for allegations of disab[il ity].” The ALJ’s concern is reas onable in light of Dr. Tanir’s conclusory opinion, which provided no supporting fi ndings or records and consisted largely of one word answers, circles, and check-marks. Such opinions have been characterized as “weak evidence at best” that meets the “patently deficient standard.” Hernandez v. Comm’r of Soc.
Sec. , 644 F. App’x 468, 475 (6th Cir. 2016) (quoting Mason v. Shalala , 994 F.2d 1058, 1065 (3d. Cir. 1993)). This is not to say that retrospectiv e evaluations are inherently unreliable or that the record is devoid of evid ence of Shepard’s impairment. But th e medical record evidence cited by the ALJ and the threadbare natu re of Dr. Tanir’s evaluation se ven years after Shepard’s lastNo. 17-1237, Shepard v. Comm’r of Soc. Sec.

-9- insured date demonstrate substantial evidence that the ALJ has good reason to discount Dr. Tanir’s opinion. Third, the ALJ’s determination that Shepard’ s statements concerning the “intensity, persistence and limiting effects of [her] sympto ms are not entirely credible” is supported by substantial evidence. The ALJ observed that the medical evidence in the record indicated that “claimant’s treatment has been relatively conser vative in nature,” a nd “[h]er treatment has generally consisted of pain medications, which have been relatively effective in controlling her symptoms.” While Shepard alleges that the ALJ “selectively cited from the evidence of record” and “relied on three isolated treatment notes,” the decision actually de monstrates a thorough engagement with relevant evidence in the record. In disability cases, “the relevant time period runs from [the claimant’s] alleged onset date to h[er] date last insured,” and the ALJ relied on the medical records near in time to the releva nt period here: June 1, 2007 to June 30, 2007. Watters v. Comm’r of Soc. Sec. , 530 F. App’x 419, 421 (6th Cir. 2013) . Physical exams and objective testing in May and September of 2007 demonstrat ed mild shoulder weakness, mild lumbar tenderness, and mild underlying sensory peripheral neuropathy. The ALJ also observed that a physical exam from July 2007 showed that Shepar d had full range of motion in her lumbar spine and good strength in her upper extremities, notwith standing the presence of a positive bilateral Tinel’s signs. Much of the counter-evidence th at Shepard points to is either well after the relevant inquiry period or relies on the very subjective statemen ts that the ALJ discredited. The ALJ also considered statements in Shepard’s Function Report that were inconsistent with testimony about a “limited lifestyle.” Shep ard indicated that she engaged in a variety of activities including driving, prep aring simple meals, light ho usehold cleaning, and doing laundryNo. 17-1237, Shepard v. Comm’r of Soc. Sec.

-10- with assistance carrying the basket up and down th e stairs. Indeed, Shepard told her physician that she was performing her own housework and was even working in May and July of 2007. Shepard argues that it was an error for the AL J to rely on the daily activities described in her Function Report because “[n]one of these activities demonstrates the ability to perform light work.” But Shepard’s argument misunderstands the ALJ’s decision. The ALJ cited these activities as evidence that Shepard’s testimony about the severity of her symptoms and her limited lifestyle was “not entirely credible,” no t to demonstrate that she was capable of light work. It was entirely appropriate for the ALJ to consider whether Shepard’s asserted limitations were consistent with her ability to drive, prepare simple meals, shop, and go to eat or the movies.
See 20 CFR § 404.1529. Such activity may be considered in making a credibility determination regarding a claimant’s asserted limitations. See, e.g. , Sorrell v. Comm’r of Soc. Sec. , 656 Fed. App’x. 162, 174 (6th Cir. 2016) (citing Cruse v. Comm’r of Soc. Sec. , 502 F.3d 532, 543–44 (6th Cir. 2007) and Young v. Sec’y of Health & Human Servs. , 925 F.2d 146 (6th Cir. 1990)). “An ALJ’s credibility assessment must be accorded great weight and deference.” Workman v. Comm’r of Soc. Sec. , 105 F. App’x 794, 801 (6th Cir. 2004) . “We have held that an administrative law judge’s credibility findings ar e virtually unchallengeable” absent compelling

reasons. Ritchie v. Comm’r of Soc. Sec. , 540 F. App’x 508, 511 (6th Cir. 2013) (citation omitted). Such reasons are not present here. Finally, substantial evidence supports the ALJ’s determination that, “through the date last insured, [Shepard] had the residual functional cap acity to perform light work” with certain restrictions. The ALJ’s findings are supported by evidence that Shepard’s treatment during the relevant period was relatively c onservative, generally consisting of pain medications, and that this treatment was generally effective. Between May and July of 2007, Shepard reportedNo. 17-1237, Shepard v. Comm’r of Soc. Sec.

-11- significant improvement in her pain levels with medication, and in June of 2007 she reported to her physician that her pain re lief was adequate. As discussed above, physical exams and objective medical testing in the record demonstr ated only mild abnormalities near in time to the relevant period. Moreover, imme diately before the relevant pe riod Shepard had “full[y] active abduction and forward flexion and intern al rotation was eq ual bilaterally.” Shepard contends that there is conflicting evidence in the record that demonstrates she was incapable of light work during the relevant period. That may be so, but when the ALJ is “presented with the not uncommon situation of conflicting medical ev idence[,] [t]he trier of fact has the duty to resolve that conflict.” Richardson v. Perales , 402 U.S. 389, 399 (1971). Our job is only to ensure that the Commissioner’s dete rmination is supported by substantial evidence.
See Rogers , 486 F.3d at 241. Moreover, the conflicting evidence that Shepard cites supports the ALJ’s decision to include limitations on Shepard’ s ability to perform light work, including a sit/stand at will option and limitati ons on her ability to handle, finger, and feel bilaterally with the upper extremities. The RFC’s limitations are further supported by Shepard’s testimony and opinion evidence in the record. All of thes e considerations are consistent with the Commissioner’s guidelines for assessing a cl aimant’s residual functional capacity. See SSR 96- 8p, 1996 WL 374184, at *2 (July 2, 1996). Shepard also argues that the ALJ’s RFC l acks substantial evidence because no physician opined that Shepard was capable of light work. But “the ALJ is charged with the responsibility of determining the RFC based on her evaluation of the medical and non-medical evidence.” Rudd v. Comm’r of Soc. Sec. , 531 F. App’x 719, 728 (6th Cir. 2013) (emphasis added). An RFC is an “administrative finding,” an d the final responsibility for de termining an individual’s RFC is reserved to the Commissioner. SSR 96-5p, 1996 WL 374183, at * 1–2 (July, 2, 1996). “[T]oNo. 17-1237, Shepard v. Comm’r of Soc. Sec.

-12- require the ALJ to base her RFC on a physicia n’s opinion, would, in effect, confer upon the treating source the authority to ma ke the determination or decision about whether an individual is under a disability.” Rudd , 531 F. App’x at 728. The judgment of the district court is affirmed.