Burdge v. Commissioner of Social Security

Filing 13

MEMORANDUM OPINION by Magistrate Judge Dave Whalin on 8/26/13; the decision of the Commissioner is AFFIRMED.cc:counsel (DAK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCK
AT LOUISVILLE
ANNABETH O. BURDGE

PLAINTIFF

v.

CIVIL ACTION NO. 3:13-CV-218-DW

CAROLYN W. COLVIN, COMMISSIONER OF
SOCIAL SECURITY ADMINISTRATION

DEFENDANT

MEMORANDUM OPINION
Plaintiff Annabeth O. Burdge has filed a complaint pursuant to 42 U.S.C. §405(g) to
obtain judicial review of a final decision of the Commissioner of Social Security that denied her
application for disability insurance benefits (DIB). Burdge applied for DIB on December 13,
2011, alleging that she was disabled as of December 12, 2010, due to chronic abdominal pain,
bipolar disorder, depression, anxiety, endometriosis, post-traumatic stress disorder (PTSD),
memory problems and attention deficit disorder (ADD) (Tr. 247). The Commissioner denied
Burdge’s claim on initial consideration (Tr. 146-149) and on reconsideration (Tr. 157-159).
Burdge requested a hearing before an Administrative Law Judge (ALJ) (Tr. 160).
ALJ George A. Jacobs conducted a hearing in Louisville, Kentucky, on October 24, 2012
(Tr. 33-71). Burdge attended with her attorney, Russ Wilkey (Tr. 33). Burdge and vocational
expert (VE) William Harpool testified at the hearing (Tr. 39-65, 66-70). Following the
conclusion of the hearing, ALJ Jacobs entered a hearing decision on November 6, 2012, that
found Burdge is not disabled for the purposes of the Social Security Act (Tr. 9-28).
In his adverse decision, ALJ Jacobs made the following findings:
1.

The claimant meets the insured status requirements of the Social Security Act
through December 31, 2016.

2.

The claimant has not engaged in substantial gainful activity since December 12,
2013, the alleged onset date (20 C.F.R. 404.1571, et seq.).

3.

The claimant has the following severe impairments: right knee femoral condyle
and MCL injury; chronic abdominal pain status post-multiple surgeries; bipolar
disorder; anxiety disorder; depression and attention deficit disorder (20 C.F.R.
404.1520(c)).

4.

The claimant does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, and 404.1526).

5.

After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in
20 C.F.R. 404.1567(b) except: the claimant is able to perform occasional postural
activities but never climbing of ladders, ropes or scaffolding and must avoid
situational hazards like vibration, heights and machinery; and the claimant is able
to perform simple repetitive tasks for goal oriented work, but no production rate
pace work and is able to have only occasional contact with co-workers and
supervisors and no contact with the public.

6.

The claimant is unable to perform any past relevant work. (20 C.F.R. 404.1565).

7.

The claimant was born on December 19, 1981, and was 28-years-old, which is
defined as a younger individual age 18-49, on the alleged disability onset date.
(20 C.F.R. 404.1563).

8.

The claimant has at least a high school education and is able to communicate in
English (20 C.F.R. 404.1564).

9.

Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding
that the claimant is “not disabled” whether or not the claimant has transferable job
skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, App. 2).

10.

Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the claimant can perform (20 C.F.R. 404.1569, 404.1569(a)).

11.

The claimant has not been under a disability, as defined by the Social Security
Act, from December 12, 2010, through the date of this decision (20 C.F.R.
404.1520(f)).

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Burdge sought review of the hearing decision by the Appeals Council (Tr. 5). The Appeals
Council denied her request for review, finding no reason under the Rules to review ALJ Jacobs’
decision (Tr. 1-4). The present lawsuit followed.

Background Information.
Annabeth Burdge, born Dec. 19, 1981, was 30 years old at the time of the administrative
hearing in 2012 (Tr. 39). She has two years of college education, is 5’ 6” tall and weighs 140
lbs. (Tr. 47-48). Burdge served in the United States Army on active duty between 1999 and
2012, until her medical discharge due to bipolar disorder and abdominal pain, which a medical
examination board (MEB) determined prevents her from performing her military duties as a
heavy construction equipment operator (Tr. 359-366).
Burdge’s medical history while in the Army reflects complaints of chronic low back pain
as the result of a training accident that occurred when she fell some 15 feet and landed on her
back while attempting to climb a rope in basic training in 1999 (Tr. 360). Burdge complained to
the MEB that this chronic low back pain prevents her from sitting for extended periods of time,
driving heavy equipment, lifting heavy loads or wearing body armor (Tr. 360). Lumbar spine xray examination in May of 2011, however, was negative; and, Burdge denied any treatment with
pain injections, chiropractic adjustments, neurosurgery or orthopedic surgery (Id.). Physical
examination confirmed essentially a normal range of motion in the spine and normal motor
strength.
In February of 2009, Burdge suffered a tear of the medial collateral ligament of her right
knee during an airborne infantry parachute jump that necessitated her use of crutches and a cane
for approximately a year (Tr. 360). Burdge alleges that her knee injury leaves her in constant

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pain and that she needs surgery as a result. An MRI of her right knee obtained in February of
2009, confirmed a 12 mm x 2 mm deep osteochondral defect of the lateral femoral condyle of
her right knee associated with mild intensity bone marrow edema and a mild partial tear/sprain of
the MCL. (Id.). Burdge reported at the time that operating heavy construction equipment for
extended time periods increased her knee pain, as did prolonged walking, squatting, climbing,
running and jumping. Her treatment for this knee injury, however, consisted solely of rest, pain
medication, physical therapy and use of crutches and a brace. Motor strength in the affected leg
was noted to be 4/5 secondary to pain (Tr. 361).
In addition to her complaints of back, knee and abdominal pain (related to multiple
abdominal surgeries), Burdge also exhibited bipolar disorder, anxiety and attention deficit
disorder while in the military. Her treatment records reflect that she received treatment for both
bipolar disorder and anxiety at the Behavioral Health Clinic of the Ireland Army Hospital for
several years. Burdge also was referred to the Lincoln Trail Behavioral Health System for
inpatient hospital treatment for approximately 2 weeks in October of 2010, following suicidal
thoughts related to financial and childcare problems along with depression (Tr. 332-333).
Psychologist Margaret Dubicki diagnosed Burdge with bipolar disorder accompanied by
moderate depression and anxiety in June of 2011 (Tr. 361). Both Burdge’s mother and her sister,
according to Burdge, have been diagnosed with bipolar disorder. Burdge reports treatment with
Klonopin for anxiety, Zyprexia for her bipolar disorder, Concerta for adult attention deficit
disorder, and Percocet for her abdominal pain (Tr. 250, 361). Psychologist Dubicki concluded
that Burdge’s mental problems were exacerbated by her active duty Army service (Tr. 361).
Burdge was medically discharged from the Army in April of 2012, after more than a decade of
service due to the aforementioned medical conditions (Tr. 43).

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At the administrative hearing before Judge Jacobs, Burdge testified that she now lives
with her fourth husband and is visited regularly by her three children in the summer and every
holiday (Tr. 40). She and her husband live on her military disability pay (Tr. 41). Burdge is able
to drive, although her panic attacks allegedly limit the amount of time she can remain in an
automobile (Id.). Burdge acknowledged during the hearing that she has looked for work since
her military discharge, but her bipolar disorder prevents her employment (Tr. 44). She related a
history of five stomach surgeries that have resulted in painful scarring in her abdomen (Tr. 44).
She also experiences back pain from her fall in basic training that limits her ability to lift (Tr.
45). Other than her back and abdominal pain, Burdge informed the ALJ during the hearing that
she has no other physical problems that prevent her from working, other than occasional knee
pain (Tr. 45-46).
Burdge reported that during the 6-month period before the hearing her mental condition
has gotten worse (Tr. 50). She denied that her bipolar medication, Zyprexia, provides substantial
relief (Tr. 49-50). Burdge has been under the treatment of a psychiatrist, Dr. Steiner, for
monthly visits for the past four years (Tr. 51). This treatment, according to Burdge, has helped
her (Id.). She still, however, experiences days when she is unable to get off the couch due to her
bipolar condition (Tr. 52).
Burdge denied that she has any hobbies, belongs to any social groups, goes to the
movies, reads or exercises (Tr. 56-58). Although Burdge testified that she only used marijuana
once while a teenager, her military records reflect that she was disciplined for illicit drug use
while in the service immediately prior to her hospital treatment in October of 2010 (tr. 58-59).
In addition to her hospital treatment, Burdge related during the hearing that following her
hospitalization in the fall of 2010 she was placed into the intensive outpatient program (IOP) for

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four hours a day prior to her medical discharge from the Army (Tr. 63-66). As she described the
IOP, basically Burdge would spend each morning sitting in her platoon sergeant’s office doing
nothing. (Id.).

The Five-Step Sequential Evaluation Process.
Disability is defined by law as being the inability to do substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be expected to
result in death, or which has lasted or can be expected to last for a continuous period of not less
than 12 months. See, 20 CFR §§ 404.1505, 416.905(a). To determine whether a claimant for
DIB or SSI benefits satisfies such definition, a 5-step evaluation process has been developed. 20
C.F.R. §§ 404.1520, 916.920(a). At step 1, the Commissioner must determine whether the
claimant is currently engaged in substantial gainful activity; if so, the Commissioner will find the
claimant to be not disabled. See, 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(ii), 416.971.
See, Dinkel v. Secretary, 910 F2d, 315, 318 (6th Cir. 1990).
If the claimant is not working, then the Commissioner next must determine at step 2 of
the evaluation process whether the claimant has a severe impairment or combination of severe
impairments that significantly limit his or her ability to perform basic work activities. See 20
C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the impairments of the claimant are
determined by the Commissioner to be non-severe, in other words, so slight that they could not
result in a finding of disability irrespective of a claimant’s vocational factors, then the claimant
will be determined to be not disabled at step 2. See, Higgs v. Bowen, 880 F.2d 960, 962 (6th Cir.
1988); Mowery v. Heckler, 771 F.2d 966, 971-72 (6th Cir. 1985).

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If the claimant has a severe impairment or impairments, then the Commissioner at step 3
of the process will determine whether such impairments are sufficiently serious to satisfy the
listing of impairments found in Appendix 1 of Subpart B of Part 404 of the federal regulations.
20 C.F.R. §§ 404.1520(A)(4)(iii), 416.920(a)(4)(iii) The claimant will be determined to be
automatically disabled without consideration of his or her age, education or work experience if
the claimant’s impairments are sufficiently severe to meet or equal the criteria of any impairment
listed in the Appendix. See, Lankford v. Sullivan, 942 F.2d 301, 306 (6th Cir. 1991); Abbott v.
Sullivan, 905 F.2d 918, 923 (6th Cir. 1990).
When the severity of the claimant’s impairments does not meet or equal the listings, then
the Commissioner must determine at step 4 whether the claimant retains the residual functional
capacity (RFC) given his or her impairments to permit a return to any of his or her past relevant
work. 20 CFR §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). See, Smith v. Secretary, 893 F.2d 106,
109-110 (6th Cir. 1989). A claimant who retains the residual functional capacity, despite his or
her severe impairments, to perform past relevant work is not disabled. 20 CFR §§
404.1560(b)(3), 416.960(b)(3) The burden switches to the Commissioner at step 5 of the
sequential evaluation process to establish that the claimant, who cannot return to his or her past
relevant work, remains capable of performing alternative work in the national economy given his
or her residual functional capacity, age, education and past relevant work experience. See, 20
CFR §§ 404.1520(a)(4)(v), 404.1560( c ), 416.920(a)(4)(v), 416.960( c ); Felisky v. Bowen, 35
F.3d 1027, 1035 (6th Cir. 1994); Herr v. Commissioner, 203 F.3d 388, 391 (6th Cir. 1999).
Collectively, the above disability evaluation analysis is commonly referred to as the “5-step
sequential evaluation process.”

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Standard of Review.
Review of a decision of the Commissioner is governed by 42 U.S.C. § 405(g). The
statute, and case law that interprets it, require a reviewing court to affirm the findings of the
Commissioner if they are supported by substantial evidence and the Commissioner has employed
the appropriate legal standard. Walters v. Commissioner of Social Security, 127 F.3d 525, 528
(6th Cir. 1997) (“This Court must affirm the Commissioner’s conclusions absent a determination
that the Commissioner has failed to apply the correct legal standards or has made findings of fact
unsupported by substantial evidence in the record.). Substantial evidence is defined by the
Supreme Court to be “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). See also, Lashley v.
Sec’y of HHS, 708 F.2d 1048, 1053 (6th Cir. 1983) (citing Perales). It is more than a mere
scintilla of evidence or evidence that merely creates the suspicion of the existence of a fact, but
must be enough evidence to justify a refusal to direct a verdict if the matter were tried to a jury.
Sias v. Sec’y of HHS, 861 F.2d 475, 479 n. 1 (6th Cir. 1988).
The substantiality of the evidence is to be determined based upon a review of the record
taken as a whole, not simply some evidence, but rather the entirety of the record to include those
portions that detract from its weight. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984);
Laskowski v. Apfel, 100 F. Supp.2d 474, 482 (E.D. Mich. 2000). So long as the decision of the
Commissioner is supported by substantial evidence, it must be upheld by the federal court even if
the record might support a contrary conclusion. Smith v. Sec’y of HHS, 893 F.2d 106, 108 (6th
Cir. 1989). The substantial evidence standard “presupposes that there is a zone of choice within
which decision makers can go either way, without interference from the courts.” Mullen v.
Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc).

8

Issues for Review.
Findings of Fact 4, 5, 9, 10, 11
Burdge challenges the factual and legal adequacy of findings 4, 5, 9, 10 and 11 of Judge
Jacobs’ hearing decision. She first claims without explanation that Judge Jacobs’ finding of fact
no. 4-- that she does not have an impairment, or a combination of impairments, that meets or
medically equals any of the listed impairments of 20 C.F.R. Part 404, Subpart P, App. 1-- is not
supported by substantial evidence. Burdge does not identify, however, which specific listed
impairment(s) her medical condition allegedly satisfies. The Court therefore concludes that
Burdge has waived her potential argument as to finding of fact no. 4.
Issues that are presented in “a perfunctory manner, unaccompanied by some effort at
developed argument … are deemed waived.” See McPherson v. Kelsey, 125 F.3d 989, 995-96
(6th Cir. 1997). In other words, we decline to create a hypothetical argument for Burdge at step 3
of the sequential evaluation process only for the purpose of determining whether such an
argument, had it been adequately made, would have been persuasive when the relevant listed
impairments are identified and considered. See Hollon, ex rel. Hollon v. Comm’r, 447 F.3d 477,
479 (6th Cir. 2006) (The federal court may properly decline to formulate arguments on behalf of
a claimant or to make an open-ended review of the entire administrative record where the
claimant has not done so herself). Because Burdge did not identify any particular listed
impairment of the listing of impairments that she claims one or more of her severe impairments
satisfied, she has failed to carry her burden to establish relief at step 3. See Sullivan v. Zebley,
493 U.S. 521, 530 (1990); Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001); Thacker v. SSA,
93 Fed.Appx. 725, 727-28 (6th Cir. 2004).

9

Burdge does present a developed argument in her challenge to finding of fact no. 5 of
Judge Jacobs’ hearing decision (Tr. 15-26). In this finding, ALJ Jacobs concludes that Burdge
retains the RFC to perform light work with certain postural and nonexertional restrictions (Tr.
15). Burdge now maintains that ALJ Jacobs ignored critical evidence of her severe mental and
physical impairments in reaching his conclusion that she retains the RFC to perform a limited
range of light work. More specifically, Burdge focuses on the opinion of her treating
psychiatrist, Dr. Peter Steiner, who treated her for more than approximately 18 months for her
psychological problems (Tr. 609, 610-611).
On May 23, 2012, Dr. Steiner, a psychiatrist at the Department of Behavioral Health, at
Ft. Knox, Kentucky, wrote a memorandum that contained a description of Burdge’s mental
health treatment and her resulting nonexertional limitations (Tr. 609). The memorandum states:
SPC [Specialist] Annabeth Burdge has been under my care at the Dept. of
Behavioral Health since November 19, 2010. She had been hospitalized
with Bipolar Disorder and Anxiety in October, 2010 and was subsequently
placed in IOP for seven months. She was re-hospitalized in IOP for three
months in 2012. Her mood remains very labile despite intensive treatment
using both meds and psychotherapy. She has racing thoughts, paranoia,
and is very impulsive having rage with minimal stressors. SPC Burdge
also experiences panic attacks with shortness of breath, racing heart,
diaphoresis, and lightheadedness also triggered by stress. She also
experiences generalized anxiety and obsessions. PTSD symptoms are a
result of previous abuse.
The Army medically retired SPC Burdge for psychiatric and medical
issues. The medical issues related to five stomach surgeries causing
chronic abdominal pain due to scarring. The abdominal pain prevents her
from bending, lifting, and standing/sitting for extended periods of time.
Her behavior is extremely erratic and again she is extremely responsive to
minimal stress. Her children are not with her due to her mental instability
and I cannot imagine a work situation in which Ms. Burdge could
maintain much less be successful. In my opinion despite intensive
therapy, Ms. Annabeth Burdge is permanently and totally disabled.
(Tr. 609).

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Dr. Steiner subsequently prepared a mental residual functional capacity assessment
(RFC) for Burdge on July 26, 2012 (Tr. 610-611). Dr. Steiner in that mental RFC report, found
Burdge to be severely limited, in other words totally precluded, in her ability to understand and
remember detailed instructions, maintain attention and concentration for two straight hours,
make simple work-related decisions, complete a normal workday without interruption from
psychologically based symptoms, get along with co-workers or peers, maintain socially
appropriate behavior and respond appropriately to expected changes in work setting (Id.).
The doctor found Burdge to have moderately severe limitation, or in other words, a
substantial impairment, in her ability to remember locations and work procedures, carry out
detailed instructions, sustain an ordinary routine without supervision, work in coordination or
proximity to others without distraction, interact appropriately with the general public, accept
instructions and respond appropriately to criticism, set realistic goals, be aware of normal
hazards or travel in unfamiliar settings (Id.).
He found Burdge to be moderately limited, i.e., somewhat impaired, in her ability to
carry out short and simple repetitive instructions and to ask simple questions or request
assistance (Id.). Dr. Steiner in the same mental RFC assessment also concluded that workrelated stressors, including mild stress, would increase the level of Burdge’s mental impairment
beyond what he previously had indicated on the assessment form. In fact, he answered
affirmatively that routine, repetitive, simple or entry level work would actually serve as a stressor
to exacerbate Burdge’s psychologically based symptoms (Tr. 611).
Burdge now maintains that the May 23, 2012 memorandum and the July 26, 2012 mental
RFC assessment of Dr. Steiner conclusively establish her inability to perform substantial gainful
activity at any exertional level given her severely debilitating psychological symptoms (DN 9,

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FL&S, p. 12). Burdge metaphorically contends in this regard that ALJ Jacobs has ignored “the
disability forest for the trees.” In other words, she asserts that ALJ Jacobs merely seized upon
several isolated references to her psychological symptoms as being “mild,” while at the same
time completely ignoring her full history of unsuccessful hospitalization for her mental illness.
Burdge also argues that ALJ Jacobs failed to properly apply Social Security Ruling SSR
85-16 in determining her mental RFC. She points to the work assessment prepared by her
former commanding army officer, Captain Kari Haravitch, contained in the MEB report dated 27
June, 2011 (Tr. 359-366, 364-365). Capt. Haravitchi in her commander’s statement advises that
Specialist Burdge does not complete her assigned tasks, is unable to complete an 8-hour duty
day, has no well established relationships with her co-workers or supervisors, has diminished
attention or performance when significantly stressed, and is not capable of managing her
personal affairs or holding a higher position (Tr. 364). The same commander’s statement also
indicates that Burdge had been assigned an escort to assist her in her personal affairs “as these
tasks have become unmanageable to her.” (Tr. 364, 385, 387).
Burdge now contends that ALJ Jacobs had no basis on which to ignore these matters - the opinions of her treating psychiatrist and her former commander. She maintains that in doing
so ALJ Jacobs violated the “treating physician rule,” which requires that the opinion of a treating
physician such as Dr. Steiner be given controlling weight absent good reasons not to do so,
reasons that must be set forth in the hearing decision and must be supported by evidence of
record so that subsequent reviewers may determine whether the medical opinion of the treating
source has been given appropriate weight. Because ALJ Jacobs failed to give controlling weight
to Dr. Steiner’s opinions and his mental RFC assessment, Burdge concludes that the decision of
the Commissioner must be reversed and disability benefits awarded to her.

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This argument requires the Court to examine what is commonly referred to as the treating
source, or treating physician, rule. Under the treating physician rule, the Commissioner’s
regulations require that the ALJ will give a treating source’s opinion controlling weight if it “is
well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with other substantial evidence in your case record.” 20 C.F.R. §§404.1527(d)(2),
416.927(d)(2). See Cole v. Astrue, 661 F.3d 931, 937-39 (6th Cir. 2011) (discussing the treating
physician rule). A physician will qualify as a treating source if the claimant sees the doctor
“with a frequency consistent with accepted medical practice for the type of treatment/evaluation
required for the medical condition.” Smith v. Comm’r of Soc. Security, 482 F.3d 873, 876 (6th
Cir. 2007) (quoting 20 C.F.R. §404.1502).
The treating physician rule rests on the assumption that a medical professional who has
dealt with a claimant over a long period of time for a specific illness will have a deeper insight
into the medical condition of the claimant than an individual who may have examined the
claimant only once or has merely seen the medical records of the claimant. Barker v. Shalala, 40
F.3d 789, 794 (6th Cir. 1994) (citing Bowman v. Heckler, 70 F.2d 564, 568 (5th Cir. 1983)). The
opinion of a treating source need not be given complete deference, however, if that opinion lacks
objective support in the record, is in tension with a prior opinion of the same treating source,
lacks meaningful detail, is entirely conclusory, or is in conflict with other evidence of record
showing substantial improvement in the claimant’s condition. See White v. Comm’r, 572 F.3d
272, 285-87 (6th Cir. 2009); Calvert v. Firstar Financial, Inc., 409 F.3d 286, 294 (6th Cir. 2005);
Walters v. Comm’r, 127 F.3d 525, 530 (6th Cir. 1997); Cutlip v. Sec’y, 25 F.3d 284 (6th Cir.
1994).

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Even in those circumstances in which the Commissioner does not give the opinion of a
treating physician controlling weight, it may still be given great weight. White, 572 F.3d at 286
(citing SSR 96-2p). When an ALJ declines to give controlling weight to the opinion of a treating
source, the ALJ must balance a number of factors to evaluate what weight the opinion should be
given. Wilson, 378 F.3d at 544. These factors include the length of the treatment relationship,
frequency of examination, the nature and extent of the treatment provided, the supportability of
the opinion, the consistency of the opinion with the record as a whole, and the specialization of
the treating source. Cole, 661 F.3d at 937 (citing 20 C.F.R. §404.1527(d)(2)).
As to the importance of these factors when determining the weight to be given the
opinion of a treating source, Cole explains:

[T]he Commissioner imposes on its decision makers a clear duty to
“always give good reasons in our notice of determination or
decision for the weight we give [a] treating source’s opinion 20
C.F.R. §404.1527(d)(2). Those good reasons must be supported by
the evidence in the case record, and must be sufficiently specific to
make clear to any subsequent reviewers the weight the adjudicator
gave to the treating source’s medical opinion and the reasons for
that weight. S.S.R. 96-2p (1996). This requirement is not simply a
formality; it is to safeguard the claimant’s procedural rights. It is
intended ‘to let claimant’s understand the disposition of their cases,
particularly in situations where a claimant knows that his physician
has deemed his disabled and therefore might be especially
bewildered when told by an administrative bureaucracy that ... he
is not.” Wilson, 378 F.3d at 544.
Cole, 661 F.3d at 937-38.
When an ALJ fails to conduct a balancing of the above factors to determine the weight
that should be awarded to a treating source opinion, such as occurred in Cole, the Sixth Circuit
has made clear that it does not “hesitate to remand when the Commissioner has not provided
‘good reasons’ for the weight given to a treating physician’s opinion and we will continue

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remanding when we encounter opinions from ALJs that do not comprehensively set forth the
reasons for the weight assigned to a treating physician’s opinion.” Cole, 661 F.3d at 939 (citing
Hensley v. Astrue, 573 F.3d 263, 267 (6th Cir. 2009) (quoting Wilson, 378 F.3d at 545)).
ALJ Jacobs addresses the May 23, 2012 memorandum of Dr. Steiner at pp. 17-18 of his
hearing decision (Tr. 25-26). First, he correctly dismisses Dr. Steiner’s opinion that Burdge is
“permanently and totally disabled” as impermissibly invading the purview of the Commissioner
(Tr. 25). See Bass v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007)(“20 C.F.R.§ 404.1527(e)(1)
explicitly states that the conclusion of disability is reserved to the Secretary….Section ( e )(3)
further elaborates that no ‘special significance’ will be given to opinions of disability, even if
they come from a treating physician.”).
The ALJ next correctly notes that, as to Dr. Steiner’s opinion that Burdge’s chronic
abdominal pain prevents her from bending, lifting and standing/sitting for extended periods of
time, the doctor is not a treating source since he did not treat Burdge for her abdominal
complaints. See Blakley v Comm’r, 581 F.3d 399, 407 (6th Cir. 2009)( A physician is a treating
source if he has provided medical treatment or evaluation and has had an ongoing treatment
relationship with the claimant ... “with a frequency consistent with accepted medical practice for
the type of treatment and/or evaluation [that is] typical for the [treated condition(s)
].”)(citing 20 C.F.R. § 404.1502)(emphasis added). Further, ALJ Jacobs notes that these specific
functional limitations are not precluded by the RFC assessment contained in finding of fact no. 5
of the hearing decision that limits Burdge to a restricted range of light work (Tr. 15, 25). In this
respect, ALJ Jacobs instead chose to rely upon the physical functional capacity assessments of
the consulting medical experts including that of Dr. Mukherjee (Tr. 19-111).

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ALJ Jacobs at p. 18 of his hearing decision then turned to the mental residual functional
capacity assessment of Dr. Steiner (Tr. 25-26, 610-11). Based on Dr. Steiner’s treatment records
from December of 2010, through February of 2012, ALJ Jacobs concluded that the severe mental
limitations imposed by Dr. Steiner simply are not supported by his own treatment records (Tr.
26, 422-440, 485, 505, 517, 583, 590, 593). Specifically, ALJ Jacobs noted in his decision that
Dr. Steiner’s treatment records “are replete with findings and assessments of ‘mild’ symptoms
and mental limitations of no greater than ‘moderate’ severity and provide little support for the
level of dysfunction described in his report of May 2012….” (Tr. 26). ALJ Jacobs ultimately
concludes that “neither report from Dr. Steiner provides any support for his assertion that the
claimant has been essentially mentally-nonfunctional’ since at least July 2009.” (Id.).
Upon review of both the record and the extensive hearing decision of ALJ Jacobs, the
Court finds no violation of the treating physician rule resulted when the ALJ chose to give little
weight to Dr. Steiner’s assessments in his May 2012 memorandum or the July 2012 mental RFC
assessment (Tr. 609, 610-611). The ALJ hearing decision reflects a meticulous review of the
claimant’s medical history that is supported by extensive citations to specific portions of those
records. The Court has conducted its own independent review of Burdge’s Army service-related
medical records, as well. That review confirms that ALJ Jacobs has not “overlooked the forest
for the trees.”
First, Dr. Steiner’s own treatment notes do not support the severity of the mental
limitations that he imposes on Burdge. 1 Treatment examination notes of Dr. Steiner’s
psychiatric examinations routinely reveal only mild psychomotor agitation and/or mildly
pressured speech (Tr. 422, 440, 485, 505, 517, 583, 590). The same treatment notes repeatedly

1

Burdge concedes that ALJ Jacobs properly declined to afford any weight to Dr. Steiner’s ultimate conclusion that
she is disabled from all substantial gainful activity.

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confirm that Burdge was fully oriented with at least fair insight and judgment (Id.). Burdge also
reported to Dr. Steiner consistently during those examinations that she had no side effects from
her medication (Id.). By early January 2012, Burdge reported improved sleep, appetite and
energy (Tr. 593). She made essentially the same report of improving sleep, appetite and energy
in February of 2012 (Tr. 583).
Nowhere in the treatment notes of Dr. Steiner is there found any indication of the
extraordinarily severe mental limitations that the doctor includes in his mental RFC assessment
of July 26, 2012 (Tr. 610-611). To the contrary, Dr. Steiner routinely indicates that Burdge,
when compliant with her mental health treatment, has a global assessment of functioning (GAF)
score of 60, which would indicate at most only moderate symptoms or a moderate level of
impairment in her social, occupational and educational functioning (Tr. 440, 485, 505, 517, 583,
590, 593). While a GAF score is not determinative, the consistently high GAF scores imposed
by Dr. Steiner, when Burdge was compliance with treatment, contradict the conclusions of his
memorandum and mental RFC assessment.
The Court also notes that the written conclusions of the MEB contained in its report of
June 27, 2011, prepared by Dr. Julio DePena and physician’s assistant Kathleen Tatman, also
conflict with the report and assessment provided by Dr. Steiner. Dr. DePena in the MEB report
specifically concludes that
Prognosis is good for [Burdge’s] bipolar disorder as long as [Burdge] …
continues to take the medications for this disorder and to seek care as
needed. [Specialist] Burdge is better able to control her anxiety through
learning strategies. This condition should continue to improve with
practice.

(Tr. 365).

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This opinion of Dr. DePena appears to have been based in part on a psychological
evaluation performed by psychologist Margaret Dubicki of the Psychology Clinic at the Ireland
Army Hospital (Tr. 449-458). Dubicki assessed Burdge with moderate bipolar disorder without
psychotic symptoms and anxiety. (Tr. 456). Dubicki assessed Burdge with a current GAF score
of 55. (Id.)..Although Dubicki gave Burdge a poor prognosis for future military service, she
concluded that Burdge’s prognosis for occupational and social development in civilian life was
fair (Tr. 457).
Likewise, the state agency mental health consultants, Drs. Vanderplate, Sillers and
Perritt, also concluded upon review of Burdge’s service-related mental health treatment records
that she had no severe mental limitations such as those reported by Dr. Steiner (Tr. 23-24, 110113, 125-126, 140-142). In fact, Dr. Vanderplate found that Burdge was not significantly limited
in 13 of the 20 areas of functioning and only moderately limited in seven other areas of
functioning (Tr. 110-113). Dr. Sillers concluded that Burdge was not significantly limited in 15
of the 20 areas of functioning and only moderately limited in 5 other areas of functioning (Tr.
125-26). Dr. Perritt reached similar conclusions in his own review (Tr. 140-41). Accordingly,
the opinions of three reviewing mental health professionals further support the determination of
ALJ Jacobs that the extremely severe mental limitations imposed by Dr. Steiner are not entitled
to great weight given Dr. Steiner’s own treatment notes, the conclusion of the MEB review and
those of the reviewing state agency mental health experts. For these reasons, the Court
concludes that substantial evidence supports the hearing decision of ALJ Jacobs in this respect
and that ALJ Jacobs did not violate the treating physician rule therein.
The final matter for the Court to consider is whether Burdge has preserved her challenge
to findings of fact nos. 9, 10 and 11. Burdge in her fact and law summary indicates only that

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these findings are not supported by substantial evidence. She does not explain , however, how
the findings are deficient in light of the record or the controlling law. For example, in finding of
fact 9, ALJ Jacobs determined that transferability of job skills is not material to his disability
determination (Tr. 27). Burdge does not explain how transferability of job skills was material.
In the absence of any developed argument, the Court considers the issue to be waived.
Likewise, while Burdge apparently challenges the finding of the ALJ at step five of the
sequential evaluation process that there remains alternative work she is able to perform, given
her age, education, work experience and RFC, she does not explain why this conclusion is not
supported by substantial evidence apart from her reliance on Dr. Steiner’s memorandum and
mental RFC assessment (Tr 609, 610-11). ALJ Jacobs during the hearing presented the
vocational expert with a hypothetical question that accurately reflects Burdge’s physical and
mental limitations (Tr. 67-68). Based on those limitations and her vocational factors, V.E.
Harpool identified a substantial number of jobs in the national economy that Burdge remains
capable of performing (Tr. 68-69). Accordingly, the Commissioner carried her burden at step 5
of the sequential evaluation process based on the testimony of V.E. Harpool. See Ealy v.
Comm’r, 594 F.3d 504, 512-13 (6th Cir. 2010); Varley v. Sec’y of HHS, 820 F.3d 777, 779 (6th
Cir. 1987). For these reasons, the decision of the Commissioner is AFFIRMED.
August 26, 2013

Cc:

Counsel of Record

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