Greene-Howard v. Social Security, Commissioner of
MEMORANDUM OPINION and ORDER re 19 MOTION for Summary Judgment , 16 MOTION to Remand Pursuant to Sentence Four Signed by Magistrate Judge Patricia T. Morris. (KCas)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
CASE NO. 16-12621
MAGISTRATE JUDGE PATRICIA T. MORRIS
COMMISSIONER OF SOCIAL SECURITY,
OPINION AND ORDER ON CROSS
MOTIONS FOR SUMMARY JUDGMENT (Docs. 16, 19)
Introduction and Procedural History
This is an action for judicial review of a final decision by the Commissioner of
Social Security (“Commissioner”) denying Plaintiff Julie Greene-Howard’s claim for
disability benefits under the Disability Insurance Benefits (“DIB”) program of Title II, 42
U.S.C. § 401 et seq, and Supplemental Security Income (“SSI”) under Title XVI, 42 U.S.C.
§ 1381 et seq. (Doc. 1; Tr. 1-3). The case is before the undersigned magistrate judge
pursuant to the parties’ consent under 28 U.S.C. § 636(c), E.D. Mich. LR 72.1(b)(3), and
by Notice of Reference. (Docs. 3, 13, 15). The matter is currently before the Court on crossmotions for summary judgment. (Docs. 16, 19).
Plaintiff was fifty-two years old as of February 13, 2015, the date of the ALJ’s
decision. (Tr. 22, 145). Her applications for benefits were initially denied on April 17,
2013. (Tr. 81-82). Plaintiff requested a hearing before an Administrative Law Judge
(“ALJ”), which took place before ALJ Lisa Leslie on January 27, 2015. (Tr. 27-68).
Plaintiff, represented by attorney Ms. Ilanski, testified, as did vocational expert (“VE”) Ms.
McFarland. (Id.). On February 13, 2015, the ALJ issued a written decision in which she
found Plaintiff not disabled. (Tr. 10-22). On May 4, 2015, the Appeals Council denied
review. (Tr. 1-4). Plaintiff filed for judicial review of that final decision on July 14, 2016.
Standard of Review
The district court has jurisdiction to review the Commissioner’s final administrative
decision pursuant to 42 U.S.C. § 405(g). The district court’s review is restricted solely to
determining whether the “Commissioner has failed to apply the correct legal standard or
has made findings of fact unsupported by substantial evidence in the record.” Sullivan v.
Comm’r of Soc. Sec., 595 F. App’x 502, 506 (6th Cir. 2014) (internal citations omitted).
Substantial evidence is “more than a scintilla of evidence but less than a preponderance; it
is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (internal
The Court must examine the administrative record as a whole, and may consider
any evidence in the record, regardless of whether it has been cited by the ALJ. See Walker
v. Secretary of Health and Human Services, 884 F.2d 241, 245 (6th Cir. 1989). The Court
will not “try the case de novo, nor resolve conflicts in the evidence, nor decide questions
of credibility.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994).
If the Commissioner’s decision is supported by substantial evidence, “it must be affirmed
even if the reviewing court would decide the matter differently and even if substantial
evidence also supports the opposite conclusion.” Id. at 286 (internal citations omitted).
Framework for Disability Determinations
Under the Act, “DIB and SSI are available only for those who have a ‘disability.’”
Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). “Disability” means the inability
to engage in any 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 [twelve]
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); 20 C.F.R. § 416.905(a) (SSI). The
Commissioner’s regulations provide that disability is to be determined through the
application of a five-step sequential analysis:
Step One: If the claimant is currently engaged in substantial
gainful activity, benefits are denied without further analysis.
Step Two: If the claimant does not have a severe impairment
or combination of impairments that “significantly limits . . .
physical or mental ability to do basic work activities,” benefits
are denied without further analysis.
Step Three: If the claimant is not performing substantial
gainful activity, has a severe impairment that is expected to last
for at least twelve months, and the severe impairment meets or
equals one of the impairments listed in the regulations, the
claimant is conclusively presumed to be disabled regardless of
age, education or work experience.
Step Four: If the claimant is able to perform his or her past
relevant work, benefits are denied without further analysis.
Step Five: Even if the claimant is unable to perform his or her
past relevant work, if other work exists in the national economy
that plaintiff can perform, in view of his or her age, education,
and work experience, benefits are denied.
20 C.F.R. §§ 404.1520, 416.920. See also Heston v. Comm’r of Soc. Sec., 245 F.3d 528,
534 (6th Cir. 2001). “Through step four, the claimant bears the burden of proving the
existence and severity of limitations caused by [his or] her impairments and the fact that
she is precluded from performing [his or] her past relevant work.” Jones v. Comm’r of Soc.
Sec., 336 F.3d 469, 474 (6th Cir. 2003). The burden transfers to the Commissioner if the
analysis reaches the fifth step without a finding that the claimant is not disabled. Combs v.
Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006). At the fifth step, the Commissioner
is required to show that “other jobs in significant numbers exist in the national economy
that [the claimant] could perform given [his or] her RFC [residual functional capacity] and
considering relevant vocational factors.” Rogers, 486 F.3d at 241 (citing 20 C.F.R. §§
Following the five-step sequential analysis, the ALJ found Plaintiff not disabled
under the Act. (Tr. 22). The ALJ found at Step One that Plaintiff had not engaged in
substantial gainful activity following the alleged onset date, March 30, 2010. (Tr. 12). At
Step Two, the ALJ concluded that Plaintiff had the following severe impairments: “status
post amputation of four fingers, asthma/chronic obstructive pulmonary disease (COPD),
depression, anxiety, and alcohol abuse.” (Tr. 12-14). At Step Three, the ALJ found that
Plaintiff’s combination of impairments did not meet or equal one of the listed impairments.
(Tr. 14-15). The ALJ then found that Plaintiff had the residual functional capacity (“RFC”)
to perform light work, with additional limitations as follows:
No fine manipulation with the left hand; no concentrated exposure to extreme
heat, cold, humidity, fumes, odors, dust or other pulmonary irritants; she is
limited to simple, routine, repetitive tasks.
(Tr. 15-19). At Step Four, the ALJ found that Plaintiff was unable to return to her past
relevant work. (Tr. 20). At Step Five, the ALJ found that Plaintiff could still perform jobs
which exist in significant numbers in the national economy, and was thus not disabled. (Tr.
The Court has thoroughly reviewed Plaintiff’s medical record. In lieu of
summarizing her medical history here, the Court will make references and provide citations
to the record as necessary in its discussion of the parties’ arguments.
Application Reports and Administrative Hearing
Plaintiff’s Function Report
Plaintiff completed a function report on April 4, 2014, wherein she wrote that she
was disabled by depression, colitis, amputation of fingers on her left hand, carpal tunnel
syndrome, and back pain. (Tr. 213). She wrote that depression interfered with her sleep,
eating, and communication with others. (Id.). Her colitis prevented her from “leav[ing] the
bathroom for hours” and caused vomiting. (Id.). Amputation of fingers on her left hand
caused carpal tunnel syndrome on her right. (Id.). Cervical fusion caused back pain which
prevented her from completing “almost any kind of physical labor.” (Id.). Plaintiff’s daily
activities were composed solely of watching television and eating. (Tr. 214). Her hobbies
included watching television and reading books; she described the frequency with which
she performed these activities by exclaiming “it’s all I do!!!!” (Tr. 215). Plaintiff
sometimes experienced insomnia followed by periods of sleeping for a full twenty-four
hours. (Tr. 214). She was sometimes “too depressed” to perform personal care activities
like dressing, bathing, caring for hair, shaving, and feeding herself. (Id.).
Plaintiff used lists and reminders from friends to ensure she performed personal care
and took medication on time. (Tr. 215). She prepared her own food, consisting of yogurt
and canned food. (Id.). She also washed laundry and dishes. (Id.). Plaintiff rarely went
outside due to social anxiety. (Tr. 216). She could not go outside alone due to anxiety, and
chose not to drive vehicles. (Id.). However, she shopped in stores for food “very
infrequently.” (Id.). She did not spend time with others. (Tr. 217). However, Plaintiff also
wrote that she had no difficulty getting along with others. (Tr. 218).
Plaintiff checked boxes indicating that she was limited in terms of lifting, squatting,
bending, sitting, kneeling, stair climbing, memory, completing tasks, concentration, using
hands, and getting along with others. (Tr. 218). She wrote that her back pain prevented her
from “physical movement” and her depression caused her to lack “any desire or energy.”
(Id.). She was unable to estimate her ability to walk, writing “depends (asthma).” (Id.). She
was likewise unable to estimate her ability to pay attention, writing “varies.” (Id.). She did
not finish what she started, but could follow written or oral instructions “pretty well.” (Id.).
She got along with authority figures “okay,” but did not handle stress or changes in routine
well. (Tr. 219). Plaintiff did not list any medication side effects. (Tr. 220).
Third-Party Function Report
Plaintiff’s boyfriend Tim Rivard, with whom she cohabitated, completed a thirty
party function report on April 4, 2014, which generally confirmed Plaintiff’s own report.
Plaintiff’s Testimony at the Administrative Hearing
At the January 27, 2015, hearing before the ALJ, Plaintiff testified that she stopped
working in 2002 when her father committed suicide, which deepened her preexisting
depression. (Tr. 38-39). Her use of the anti-depressant Prozac helped “somewhat.” (Tr. 40).
Plaintiff’s depression stripped her of motivation and caused somnolence problems; she
sometimes slept “four days in a row for 20 hours a day,” and other times was unable to
sleep at all. (Id.).
Plaintiff testified that her average day consisted of sitting on the couch, watching
television, feeding her pets, and performing chores like washing dishes and clothes. (Tr.
40). Her boyfriend performed the majority of the chores around the house and performing
the necessary shopping. (Id.). She had great difficulty leaving the home for any reason, to
the point of feeling “nervous and upset all day” if she has an appointment. (Tr. 41). She
did not, at the time of the hearing, have any hobbies which caused her to leave the home.
Plaintiff also testified that she experienced colitis flare ups “almost daily,” spending
roughly an hour in the bathroom each morning, waking four or five times nightly to
defecate, and in some cases vomiting. (Tr. 42). Stress worsened these symptoms. (Id.). She
visited the emergency room “several times” on account of colitis symptoms, including on
one occasion two or three months prior to the hearing. (Tr. 43). Prescription medication
helped to tame this ailment “somewhat.” (Id.).
Plaintiff’s cervical spine was fused at three points, which caused back pain during
physical activity and weather changes. (Tr. 44). She estimated that she could stand for only
about one hour at a time and sit for about two hours at a time. (Id.). She could walk for
about thirty minutes without rest. (Id.).
Three fingers on Plaintiff’s left hand were amputated in 1980, and she therefore
used her right hand “pretty much exclusively.” (Tr. 45). This caused carpal tunnel
syndrome in the right hand through overuse. (Id.).
The ALJ noted that while Plaintiff alleged onset date was March 2010, the medical
record showed no records prior to 2011. (Tr. 49).
The VE’s Testimony at the Administrative Hearing
The ALJ then called upon the services of a VE to determine Plaintiff’s ability to
perform work. The ALJ first asked the VE to characterize Plaintiff’s past relevant work.
(Tr. 53). Because the ALJ proceeded to Step Five, Plaintiff’s past work is irrelevant to this
The ALJ asked the VE to assume a hypothetical individual who was limited to light
work; but who could perform “no fine manipulation with her left hand and would be able
to have no concentrated exposure to extreme heat, cold, humidity, fumes, odors, dusts or
other pulmonary irritants, and would be limited to simple, routine, repetitive tasks.” (Tr.
61-62). The VE first noted that if the claimant was limited to work at the sedentary level
of work, she would be disabled because such positions require frequent use of the bilateral
extremities. (Tr. 62). The VE then found that a worker limited as in the ALJ’s hypothetical
could perform work as a counter clerk (62,000 jobs nationally), sales attendant (54,000
jobs nationally), and hostess (11,000 jobs). (Tr. 63).
In a second hypothetical, the ALJ asked the VE to imagine the same restrictions as
before, but to add that the individual would be limited sedentary work; the VE reiterated
her conclusion that such a worker would be precluded from most positions. However, the
VE found that such a worker could potentially perform the role of a “code separator,” of
which there were only 5,000 such positions nationally, and surveillance systems monitor,
again with roughly 5,000 positions nationally. (Tr. 65).
Finally, the ALJ added further postural, manipulation, and attention restriction to
the second hypothetical; the VE found that such a worker would be unemployable. (Tr.
66). The VE noted that workers are expected to be off task no more than fifteen percent of
the workday. (Id.).
The ALJ must “consider all evidence” in the record when making a disability
decision. 42 U.S.C. § 423(d)(5)(B). The regulations carve the evidence into various
categories, “acceptable medical sources” and “other sources.” 20 C.F.R. § 404.1513.
“Acceptable medical sources” include, among others, licensed physicians and licensed or
certified psychologists. Id. § 404.1513(a). “Other sources” include medical sources who
are not “acceptable” and almost any other individual able to provide relevant evidence. Id.
§ 404.1513(d). Only “acceptable medical sources” can establish the existence of an
impairment. SSR 06-03p, 2006 WL 2329939, at *2. Both
acceptable sources provide evidence to the Commissioner, often in the form of opinions
“about the nature and severity of an individual’s impairment(s), including symptoms,
diagnosis and prognosis, what the individual can still do despite the impairment(s), and
physical and mental restrictions.” Id. at *2. When “acceptable medical sources” issue such
opinions, the regulations deem the statements to be “medical opinions” subject to a multifactor test that weighs their value. 20 C.F.R. § 404.1527. Excluded from the definition of
“medical opinions” are various decisions reserved to the Commissioner, such as whether
the claimant meets the statutory definition of disability and how to measure his or her RFC.
Id. at 404.1527(d).
The ALJ must use a six-factor balancing test to determine the probative value of
medical opinions from acceptable sources. 20 C.F.R. § 404.1527(c). The test looks at
whether the source examined the claimant, “the length of the treatment relationship and the
frequency of examination, the nature and extent of the treatment relationship,
supportability of the opinion, consistency of the opinion with the record as a whole, and
specialization of the treating source.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544
(6th Cir. 2004). See also 20 C.F.R. § 404.1527(c). ALJs must also apply those factors to
“other source” opinions. See Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 540-42 (6th Cir.
2007); SSR 06-3p, 2006 WL 2329939, at *2.
Certain opinions of a treating physician, in contrast, receive controlling weight if
they are “well-supported by medically acceptable clinical and laboratory diagnostic
techniques” and are “not inconsistent with the other substantial evidence in [the] case
record.” 20 C.F.R. § 404.1527(d)(2). See also Wilson, 378 F.3d at 544. The only opinions
entitled to dispositive effect deal with the nature and severity of the claimant’s
impairments. 20 C.F.R. § 404.1527(d); SSR 96-2p, 1996 WL 374188, at *1-2. Therefore,
the ALJ does not owe a treating opinion deference on matters reserved to the
Commissioner. 20 C.F.R. § 404.1527(d); SSR 96-2p, 1996 WL 374188, at *1-2. The ALJ
“will not give any special significance to the source of an opinion” regarding whether a
person is disabled or unable to work, whether an impairment meets or equals a Listing, the
individual’s RFC, and the application of vocational factors. 20 C.F.R. § 404.1527(d)(3).
The regulations mandate that the ALJ provide “good reasons” for the weight
assigned to the treating source’s opinion in the written determination. 20 C.F.R. §
404.1527(c)(2). See also Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 875 (6th Cir. 2007).
Therefore, a decision denying benefits
must contain specific reasons for the weight given to the treating
source’s medical opinion, 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 opinion and the reasons for that weight.
SSR 96-2p, 1996 WL 374188, at *5 (1996). See also Rogers, 486 F.3d at 242. For example,
an ALJ may properly reject a treating source opinion if it lacks supporting objective
evidence. Revels v. Sec. of Health & Human Servs, 882 F. Supp. 637, 640-41 (E.D. Mich.
1994), aff’d, 51 F.3d 273, 1995 WL 138930, at *1 (6th Cir. 1995) (unpublished table
An ALJ must analyze the credibility of the claimant, considering the claimant’s
statements about pain or other symptoms with the rest of the relevant evidence in the record
and factors outlined in Social Security Ruling 96-7p. Credibility determinations regarding
a claimant’s subjective complaints rest with the ALJ. See Siterlet v. Sec’y of Health &
Human Servs., 823 F.2d 918, 920 (6th Cir. 1987). Generally, an ALJ’s credibility
assessment can be disturbed only for a “compelling reason.” Sims v. Comm’r of Soc. Sec.,
No. 09-5773, 2011 WL 180789, at *4 (6th Cir. Jan. 19, 2011) (citing Smith v. Halter, 307
F.3d 377, 379 (6th Cir. 2001)); Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir.
The Social Security regulations establish a two-step process for evaluating
subjective symptoms, including pain. 20 C.F.R. § 404.1529; SSR 96-7p, 1996 WL 374186,
at *2. The ALJ evaluates complaints of disabling pain by confirming that objective medical
evidence of the underlying condition exists. The ALJ then determines whether that
condition could reasonably be expected to produce the alleged pain or whether other
objective evidence verifies the severity of the pain. See 20 C.F.R. § 404.1529; SSR 96-7p,
1996 WL 374186, at *2; Stanley v. Sec’y of Health & Human Servs., 39 F.3d 115, 117 (6th
Cir. 1994). The ALJ ascertains the extent of the work-related limitations by determining
the intensity, persistence, and limiting effects of the claimant’s symptoms. SSR 96-7p,
1996 WL 374186, at *2.
While “objective evidence of the pain itself” is not required, Duncan v. Sec’y of
Health & Human Servs., 801 F.2d 847, 853 (6th Cir. 1986) (quotation omitted), a
claimant’s description of his or her physical or mental impairments alone is “not enough
to establish the existence of a physical or mental impairment,” 20 C.F.R. § 404.1528(a).
Nonetheless, the ALJ may not disregard the claimant’s subjective complaints about the
severity and persistence of the pain simply because they lack substantiating objective
evidence. SSR 96-7p, 1996 WL 374186, at *1. Instead, the absence of objective confirming
evidence forces the ALJ to consider the following factors:
The location, duration, frequency, and intensity of . . . pain;
Precipitating and aggravating factors;
The type, dosage, effectiveness, and side effects of any
medication . . . taken to alleviate . . . pain or other symptoms;
Treatment, other than medication, . . . received for relief of . . .
(vi) Any measures . . . used to relieve . . . pain.
20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). See also Felisky v. Bowen, 35 F.3d 1027,
1039-40 (6th Cir. 1994); SSR 96-7p, 1996 WL 374186, at *3. Furthermore, the claimant’s
work history and the consistency of his or her subjective statements are also relevant. 20
C.F.R. § 404.1527(c); SSR 96-7p, 1996 WL 374186, at *5.
The claimant must provide evidence establishing her RFC. The statute lays the
groundwork for this, stating, “An individual shall not be considered to be under a disability
unless he [or she] furnishes such medical and other evidence of the existence thereof as the
Secretary may require.” 42 U.S.C. § 423(d)(5)(A). See also Bowen, 482 U.S. at 146 n.5.
The RFC “is the most he [or she] can still do despite his [or her] limitations,” and is
measured using “all the relevant evidence in [the] case record.” 20 C.F.R. § 404.1545(a)(2).
A hypothetical question to the VE is valid if it includes all credible limitations developed
prior to Step Five. Casey v. Sec. of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir.
1993); Donald v. Comm’r of Soc. Sec., No. 08-14784-BC, 2009 WL 4730453, at *7 (E.D.
Mich. Dec. 9, 2009).
Plaintiff argues that the ALJ erred in the following ways: 1) Failing to articulate
how it was determined that Plaintiff could perform “light” work, and interpreting raw
medical data in the process; 2) Failing to adequately compensate for Plaintiff’s depression
and anxiety; 3) Failing to give “good reasons” for the weight accorded to Dr. Wagner’s
opinion; 4) Providing inadequate reasons for discounting the third-party function report
provided by Plaintiff’s friend, Mr. Rivard. (Doc. 16 at 5-13). These arguments will be
addressed in turn.
The ALJ’s RFC Finding is Well Supported
Plaintiff first argues that the ALJ inadequately explained how he reached the finding
that Plaintiff could perform “light” work. (Doc. 16 at 5-6). She notes that under SSR 968p the ALJ is obligated to provide a
[N]arrative discussion describing how the evidence supports each
conclusion, citing specific medical facts (e.g., laboratory findings) and
nonmedical evidence (e.g., daily activities, observations). In assessing RFC,
the adjudicator must discuss the individual’s ability to perform sustained
work activities in an ordinary work setting on a regular and continuing basis
(i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and
describe the maximum amount of each work-related activity the individual
can perform based on the evidence available in the case record.
Plaintiff does not point to any particular piece of medical data which she believes is
inconsistent with light work. Plaintiff instead appears to argue that the ALJ’s decision is
so deficient that she need only point to the lack of evidence in the ALJ’s decision, rather
than producing any evidence of disability. This represents a misunderstanding of the
burden-shifting system employed in the five-step sequential evaluation process. Claimants
bear the burden of demonstrating disability “[t]hrough step four.” Jones, 336 F.3d at 474.
Claimants thus bear the burden of demonstrating that the RFC assessed by the ALJ does
not incorporate all of the claimant’s supportable limitations.
Even if Plaintiff demonstrated that the ALJ failed to comply with the narrative
discussion requirement of SSR 96-8p, she is not entitled to relief unless she also shows that
the RFC does not properly describe her supportable impairments. As discussed in greater
detail in the sections below, she has not identified any well-supported symptoms not
accounted for by the ALJ’s RFC.
Plaintiff also argues that the ALJ improperly evaluated raw medical data, a task
reserved to medical experts. (Doc. 16 at 6-17). While not entirely clear, Plaintiff appears
to argue that the ALJ was obligated to base her RFC finding on an RFC assessment drafted
by a physician. This is not so. “[T]o require the ALJ to base her RFC finding on a
physician’s opinion, would, in effect, confer upon the treating source the authority to make
the determination or decision about whether an individual is under a disability, and thus
would be an abdication of the Commissioner’s statutory responsibility to determine
whether an individual is disabled.” Rudd v. Comm’r of Soc. Sec., 531 Fed. Appx. 719, 728
(6th Cir. 2013) (quotation omitted). No error can be found here.
The ALJ Adequately Accounted for Plaintiff’s Depression and
Plaintiff next argues that the ALJ erred by insufficiently accounting for her
depression and anxiety ailments. (Doc. 16 at 8-9). In essence, Plaintiff asserts that the
limitation to “simple, routine, repetitive tasks” is tantamount to a restriction to “unskilled”
work. She asserts that this restriction does not account for the symptoms produced by her
metal ailments, including in the areas of “carrying out and understanding instructions,
responding appropriately to supervision, co-workers and work pressures in a work place.”
Plaintiff’s argument is a variant of an argument frequently raised in this district: that
a limitation to “unskilled” or “simple” work does not account for moderate concentration,
persistence, or pace (“CPP”) limitations. Courts have resolved this issue both ways. See
Hernandez v. Comm’r of Soc. Sec., No. 10–cv–14364, 2011 WL 4407225, at *9 (E.D.
Mich. Aug. 30, 2011) (collecting cases). Some judges in this district have noted that even
simple, unskilled, routine jobs often require meeting quotas, alertness, or consistent pace.
See, e.g., Edwards v. Barnhart, 383 F. Supp. 2d 920, 930 (E.D. Mich. 2005); see also Teal
v. Comm’r of Soc. Sec., No. 10-13154, 2011 WL 4484910, at *3 (E.D. Mich. July 12, 2011)
(noting that surveillance monitor and visual inspector positions “require a high degree of
sustained concentration”), report and recommendation adopted, No. 10-13154, 2011 WL
4484864 (E.D. Mich. Sept. 26, 2011).
Ultimately, courts must look to “the record as a whole” to determine whether the
restrictions included by the ALJ in the RFC assessment are sufficient to account for the
claimant’s CPP limitations. Hernandez, No. 10–cv–14364, 2011 WL 4407225, at *9.
Plaintiff does not point to any medical evidence in the record supporting her claim
that a limitation to “simple, routine, repetitive tasks” is insufficient to account for her
mental health symptoms. Plaintiff is represented by competent counsel, and must bear the
burden of demonstrating her entitlement to disability benefits through Step Four of the
sequential evaluation process. She is not entitled to rely upon the Court to scour the medical
record on her behalf in the search for evidence which could support her arguments. See
United States v. Robinson, 390 F.3d 853, 886 (6th Cir. 2004) (“It is not sufficient for a
party to mention a possible argument in the most skeletal way, leaving the court to . . . put
flesh on its bones.”) (quoting McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997)).
Plaintiff’s failure to bolster her argument with any references to the record waives that
Even if Plaintiff’s argument was not waived, it would fail on the merits. The ALJ
made note of medical records beginning in 2012 which suggest that Plaintiff suffers from
anxiety and depression. (Tr. 17-19). Plaintiff treated her depression with medication, and
reported ups and downs in her emotional wellbeing from 2012 through 2014. (Tr. 17-18).
In March 2013 her depression was “not well controlled” (Tr. 256). In September 2013 she
reported great emotional distress after her sister committed suicide. (Tr. 296). In November
2014 she was “feeling pretty good on her current medications,” which were “finally [in] .
. . the right combination.” (Tr. 293). In August 2014 she was “overwhelmed by her
dependent living situation,” and expressed distress with the feeling of being “stuck +
trapped” because she had not “worked in 13 years & I have a felony. 1” (Tr. 297).
As found by the ALJ, the totality of the medical records in this matter are scant, and
only a few of those records deal with mental health. These records establish that Plaintiff
suffers from depression and perhaps anxiety, and that she is under treatment for these
disorders, but they do not establish any functional restrictions which would impede
Plaintiff’s ability to perform work. The ALJ also properly noted evidence that Plaintiff’s
The ALJ noted inconsistency between Plaintiff’s alleged 2010 disability onset date and her
unemployment beginning in 2002. (Tr. 17). The undersigned also notes Plaintiff’s candid
admission to her doctor that her felon status impeded her ability to obtain work. (Tr. 297).
ability to focus is fully intact, including her penchant for reading. (Tr. 14). Likewise, while
Plaintiff attested to avoiding others (Tr. 216), the ALJ noted that she was able to maintain
a relationship with her romantic partner (Tr. 14). The ALJ’s RFC adequately accounts for
Plaintiff’s supportable mental ailments.
The ALJ Provided Good Reasons for the Weight Accorded to Dr.
Plaintiff next argues that the ALJ erred by providing inadequate reasons for
discounting the opinion rendered by her treating physician, Dr. Wagner, as required by 20
C.F.R. § 404.1527(c)(2). First, she notes that Dr. Wagner was the supervising family
practice physician at his clinic, a fact which the ALJ neglected to mention. (Doc. 16 at 11).
She also complains that the ALJ did not discuss the length, frequency, nature, or extent of
the treatment relationship; the consistency with the remainder of the medical record; or
other relevant factors. (Id. at 11-12). While ALJs are obligated to consider all of the factors
listed in 20 C.F.R. § 404.1527(c) when evaluating medical opinions, they are not obliged
to reference every factor in the decision. See Francis v. Comm’r Soc. Sec. Admin., 414 F.
App’x 802, 804 (6th Cir. 2011). Finding a physician’s opinion inconsistent with other
medical records is sufficient reason to discount even a treating physician’s opinion. See
Helm v. Comm’r of Soc. Sec. Admin., 405 F. App’x 997, 1001 (6th Cir. 2011); Hudson v.
Colvin, No. 15-163-ART, 2015 WL 12684338, at *2 (E.D. Ky. Dec. 23, 2015).
The ALJ noted that Dr. Wagner’s proposed physical restrictions, including lifting
no more than ten pounds and walking less than two hours per day, was inconsistent with
other evidence of record. (Tr. 19). In particular, the ALJ noted that Plaintiff walked two
miles per day in July 2014, which suggested that Plaintiff could walk for more than the two
hours daily suggested by Dr. Wagner. 2 (Tr. 303, 305). This is not to ignore Plaintiff’s
complaints of some hip or back pain, which were worsened by the exertion of walking (Tr.
260, 270, 303). However, the record does not support a finding that Plaintiff’s pain was
severe enough to meaningfully limit her ability to walk or lift. Notably, Plaintiff’s
testimony at the hearing before the ALJ and in her function report both focused primarily
on her mental health. The undersigned also notes that Plaintiff treated her back pain with
over the counter ibuprofen (Tr. 304), suggesting that her back pain was manageable without
use of prescription medication. See Lang v. Colvin, No. 2:14-CV-00175-JMH, 2016 WL
918987, at *6 (E.D. Ky. Mar. 4, 2016) (“It is not inappropriate for an ALJ to consider the
type of treatment, including the type and relative strength of pain relief medications used
by a claimant . . . .”); Battice v. Comm’r of Soc. Sec., No. 1:12-CV-1389, 2014 WL
Plaintiff argues that the record regarding her penchant for walking two miles per day offers “no
clarity as to whether she walks 2 miles at a time or she breaks up her walks.” (Doc. 16 at 11).
Regardless, the ALJ cited this record as evidence that Plaintiff was able to walk for a greater period
of time than suggested by Dr. Wagner, who proposed that she be limited to walking less than two
hours per day. (Tr. 305). Given that Dr. Wagner’s proposed walking restriction does not establish
a lower bound of her walking abilities, any evidence that Plaintiff walked more than necessary
provides some reason to doubt Dr. Wagner’s opinion.
1366489, at *9 (W.D. Mich. Mar. 31, 2014) (“[U]se of over-the-counter pain medications
undercut his claims of disabling pain.”).
Plaintiff complains that the ALJ relied on boilerplate language, such as complaining
that the “severity of the limitations are not consistent with the totality of the medical
evidence of record” (Tr. 19) without referencing any specific portion of the “300+ page
record” (Doc. 16 at 11). The majority of Plaintiff’s short medical record deals with
complaints of gastrointestinal distress and emotional issues. As detailed above, only a very
small portion of the record addresses Plaintiff’s complaints of back pain, and nothing in
the record corroborates Dr. Wagner’s proposed ten pound lifting limitation. While the ALJ
characterized this as an inconsistency, it is perhaps more accurately termed a lack of
support for Dr. Wagner’s findings. Given the dearth of evidence supporting Dr. Wagner’s
strict limitations, the ALJ was well within her power to give minimal weight to that
The Commissioner also asserts that Dr. Wagner’s opinion is a check-the-box form,
and is therefore so deficient that the ALJ need not have considered it in the first place.
(Doc. 19 at 13-15). An ALJ’s failure to consider an opinion is harmless where the “treating
source’s opinion is so patently deficient that the Commissioner could not possibly credit
it.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 409 (6th Cir. 2009) (quoting Wilson v.
Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004)). It is well settled that a check23
the-box form, unaccompanied by explanation, is entitled to little or no weight, because “it
is nearly impossible to analyze” the justification for the checked boxes. See Hernandez v.
Comm’r of Soc. Sec., 644 Fed. Appx. 468, 474 (6th Cir. 2016); Larson v. Astrue, 615 F.3d
744, 751 (7th Cir. 2010) (“Although by itself a check-box form might be weak evidence,
the form takes on greater significance when it is supported by medical records.”). The Sixth
Circuit recently indicated that a check-the-box opinion unaccompanied by other supporting
evidence “meets our patently deficient standard.” Hernandez v. Comm’r of Soc. Sec., 644
F. App’x 468, 475 (6th Cir. 2016). Therefore, even if the ALJ wholly ignored Dr. Wagner’s
opinion, that error would have been harmless. In this case, the ALJ engaged with the
decision and gave brief but sufficient reasons for discounting Dr. Wagner’s opinion.
The ALJ Adequately Considered Mr. Rivard’s Third-Party
Finally, Plaintiff contends that the ALJ gave inadequate reasons for discounting the
third-party function report produced by Plaintiff’s boyfriend with whom she shares a home,
Mr. Rivard. (Doc. 16 at 12-14). She asserts that the ALJ’s justifications are not specific to
Mr. Rivard’s report, but rather are boilerplate justifications for ignoring all third-party
function reports. (Id. at 13). First, the ALJ noted that Mr. Rivard was not a medical expert,
thus his estimation of Plaintiff’s medical ailments is not entitled to any special deference.
(Tr. 19). Plaintiff contends that while this is true, it is irrelevant, because the purpose of
third-party function reports is to provide a layman’s view of the everyday life of the
claimant. (Doc. 16 at 13). Both parties are quite correct in their respective arguments. Mr.
Rivard’s report should not be expected to provide medical expertise, and thus should not
be discounted for his lack of medical expertise. However, the ALJ did not err by simply
noting the limited scope of Mr. Rivard’s knowledge.
Plaintiff also complains that the ALJ made certain unreasonable presumptions about
her relationship with Mr. Rivard. (Doc. 16 at 13). The ALJ found that Mr. Rivard would
be “likely influenced, at least minimally, by his affection towards the claimant and a natural
tendency to believe and support her.” (Tr. 19). Plaintiff asserts that this is mere speculation,
and asks how the “judge know[s]” the relationship between her and Mr. Rivard. (Doc. 16
at 13). Review of Plaintiff’s testimony at the oral hearing shows that she readily admitted
Mr. Rivard was her “boyfriend,” and that she cohabitated with him. (Tr. 40). In August
2014 she expressed displeasure with being overly “dependent on [her] boyfriend” given
her lack of income. (Tr. 297). The record therefore supports the ALJ’s finding that Mr.
Rivard has an interest in bettering Plaintiff’s finances, if only to defray the cost of
Plaintiff’s cohabitation. Given that Plaintiff calls Mr. Rivard her boyfriend, it was also
reasonable for the ALJ to conclude that Mr. Rivard’s affection for Plaintiff may interfere
with his objectivity.
Finally, Plaintiff asserts that the ALJ insufficiently supported her claim that Mr.
Rivard’s statements were inconsistent with the preponderance of the medical record. (Tr.
16 at 13-14). As noted above, Mr. Rivard’s function report is essentially duplicative of
Plaintiff’s own self-reported limitations. The ALJ’s justifications for discounting
Plaintiff’s self-reported limitations are thus sufficient to support her treatment of Mr.
Rivard’s report. No error can be found here.
The ALJ Erred in Considering Whether Plaintiff Equals a Listed
Finally, I note one issue which neither party has addressed. ALJs are empowered to
determine whether a claimant meets a listed impairment at Step Three of the sequential
evaluation process without assistance, but are obliged to seek the input of a medical expert
when considering whether the claimant “equals” a listed impairment. See Retka v. Comm’r
of Soc. Sec., 1995 WL 697215, at *2 (6th Cir. Nov. 22, 1995) (“Generally, the opinion of
a medical expert is required before a determination of medical equivalence is made.”)
(citing 20 C.F.R. § 416.926(b)); Krawczak v. Comm’r of Soc. Sec., No. 14-11281, 2016
WL 1178753, at *4 (E.D. Mich. Feb. 26, 2016) (“SSR 96–6p treats equivalence
determinations differently from determinations as to whether an impairment meets a
listing, requiring expert evidence for the former, but not the latter.”), report and
recommendation adopted, No. 14-11281, 2016 WL 1170778 (E.D. Mich. Mar. 25, 2016).
“This expert opinion requirement can be satisfied by a signature on the Disability
Determination Transmittal Form.” Osley v. Comm’r of Soc. Sec., No. 12-12279, 2013 WL
3456963, at *10 (E.D. Mich. July 9, 2013).
Here, the Commissioner opted to use the “Single Decisionmaker” model for
resolving Plaintiff’s claims at the administrative level. (Tr. 72). The single decisionmaker
model stems from 20 C.F.R. §§ 404.1406(b)(2) and 404.906(b)(2); these regulations
provide for experimental, stream-lined procedures that eliminated the reconsideration level
of review and allowed claims to go directly from the initial denial to ALJ hearing. See
Crooks v. Comm’r of Soc. Sec., No. 12–cv–13365, 2013 WL 4502162, at *9 (E.D. Mich.
Aug. 22, 2013). “Most significantly, it allowed the state agency employee (the single
decisionmaker) to render the initial denial of benefits without documenting medical
opinions from the state agency medical consultants.” Id. At the appellate level, including
the proceedings before the ALJ, these Physical RFC forms completed by SDMs are “not
opinion evidence[.]” Id. (citing The Programs Operations Manual System (“POMS”) DI §
24510.05). “Accordingly, under the regulations and agency policy, SDM assessments have
no place in an ALJ’s disability determination.” White v. Comm’r of Soc. Sec., No. 12–cv–
12833, 2013 WL 4414727, at *8 (E.D. Mich. Aug. 14, 2013).
The Commissioner’s disability denial explanation paperwork shows that a
psychological expert was employed to assist in determining whether Plaintiff met or
equaled a listed impairment insofar as her mental illnesses were concerned. (Tr. 73).
However, that paperwork appears to show that the Commissioner did not employ an expert
in physical medicine to determine whether Plaintiff met or equaled a listing in terms of her
physical impairments. This was error. See Buxton v. Halter, 246 F.3d 762, 775 (6th Cir.
2001) (finding that a psychologist was not qualified to diagnose a claimant’s physical
conditions); Byerley v. Colvin, No. 12–CV–91, 2013 WL 2145596, at *11 (N.D. Ind. May
14, 2013) (“Because the psychologist who prepared the form did not consider physical
impairments, it cannot be relied on as expert opinion that Plaintiff’s combination of
physical and mental impairments do not equal a Listing.”).
However, I conclude that the Commissioner’s error on this point does not merit
remand. First, Plaintiff has wholly failed to recognize, raise, or develop any argument
related to Step Three, and in doing so has waived any argument regarding the
Commissioner’s error at that step. See McPherson, 125 F.3d at 995–96. Furthermore, the
record clearly does not contain sufficient evidence to meet or equal a listed impairment of
the physical variety, thus the ALJ’s error on this point could not have affected the outcome
of the case, and remand would be pointless. See Smith-Johnson v. Comm’r of Soc. Sec.,
579 F. App’x 426, 432 (6th Cir. 2014) (“Yet, neither the listings nor the Sixth Circuit
require the ALJ to “address every listing” or “to discuss listings that the applicant clearly
does not meet.”) (quoting Sheeks v. Comm’r of Soc. Sec. Admin., 544 F. App’x 639, 641
(6th Cir. 2013)); Reynolds v. Comm’r of Soc. Sec., 424 F. App’x 411, 416 (6th Cir. 2011)
(suggesting that where the claimant puts forth no evidence which could meet a listing,
remand for further consideration of that listing would be fruitless). While
considered Listing 1.05, relating to skeletal disorders, and Listings 3.02 and 3.03, relating
to breathing disorders (Tr. 14), there is no evidence in the record which could support a
finding that Plaintiff meets or equals those listings. Consequently, the Commissioner’s
failure to employ an expert in physical medicine to determine whether Plaintiff equaled a
listed impairment was harmless.
I find that the ALJ’s decision, which ultimately became the final decision of the
Commissioner, is supported by substantial evidence. The ALJ’s conclusion that Plaintiff
could perform light work was sufficiently well supported, and the ALJ was not obliged to
premise her RFC on a doctor’s opinion. The record does not demonstrate that Plaintiff
suffers any limitations in terms of social functioning or CPP, and the ALJ adequately
accounted for Plaintiff’s supportable limitations resulting from depression and anxiety. The
ALJ provided sufficiently good reasons for according little weight to Dr. Wagner’s
opinion, and adequately considered Mr. Rivard’s report. Finally, while the parties did not
discuss the issue, I find that the ALJ erred by not calling upon an expert of physical
medicine when determining whether Plaintiff equaled listed impairments of a physical
nature. However, because Plaintiff clearly does not meet any such listing, this error was
harmless, and remand should not issue.
In light of the above findings, IT IS ORDERED that Plaintiff’s motion for
summary judgment (Doc. 16) is DENIED, the Commissioner’s motion for summary
judgment (Doc. 19) is GRANTED, and that this case is affirmed.
IT IS SO ORDERED.
s/ Patricia T. Morris
Patricia T. Morris
United States Magistrate Judge
Date: May 15, 2017
I hereby certify that the foregoing document was electronically filed this date
through the Court’s CM/ECF system which delivers a copy to all counsel of record.
Date: May 15, 2017
By s/Kristen Castaneda
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