Webb v. Commissioner of Social Security Administration
Filing
21
ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT (Doc. 12) AND DENYING PLAINTIFFS MOTION FOR SUMMARY JUDGMENT (Doc. 11) Signed by District Judge Avern Cohn. (SCha)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
REGINA D. WEBB,
Plaintiff,
v.
Case No. 14-12332
HON. AVERN COHN
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________/
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Doc.
12) AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (Doc. 11)
I. INTRODUCTION
This is a social security case. Plaintiff Regina Webb (Plaintiff) appeals from the
final decision of the Acting Commissioner of Social Security (Commissioner) denying
her application for Disability Insurance Benefits (DIB) under the Social Security Act.
Plaintiff claims disability since June 8, 2012, due to carpal tunnel syndrome (CTS),
depression, and anxiety disorders. (Doc. 8-2, ID 44)
The parties filed cross motions for summary judgment. (Docs. 11, 12) The
motions were referred to a Magistrate Judge (MJ) for a report and recommendation
(R&R).
The MJ recommends that the Court deny Plaintiff’s motion for summary
judgment, grant the Commissioner’s motion, and affirm the decision pursuant to 42
U.S.C. § 405(g).
Now before the Court is Plaintiff’s Objections to the R&R. (Doc. 16) For the
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following reasons, the Court will adopt the R&R as the findings and conclusions of the
Court, supplemented as follows.
II. BACKGROUND
The R&R set forth the facts, many of which are repeated here. Plaintiff applied
for DIB on June 11, 2012, asserting that she was disabled and unable to work since
June 8, 2012, due to her CTS, anxiety, and depression. (Doc. 8-2, ID 42, 44, 52) The
Social Security Administration (SSA) denied Plaintiff’s claim; Plaintiff requested a
hearing before an Administrative Law Judge (ALJ). The request was granted.
After considering the evidence presented at the hearing and in the record, the
ALJ determined that Plaintiff was not entitled to disability benefits because she retained
the residual functional capacity to perform a full range of light work.1 (Id. at 52) The
ALJ relied on the opinion of a vocational expert, who testified that “[Plaintiff was] able to
perform the requirements of representative light, unskilled occupations such as an
administrative support worker.” (Id.) Plaintiff requested a review of the ALJ’s decision.
The Appeals Council (AC) declined to review Plaintiff’s case, finding no reason to
disturb the findings of the ALJ. Plaintiff filed the instant action for judicial review of the
denial of benefits.
A. The Record Before the ALJ
In reaching her decision, the ALJ considered Plaintiff’s testimony, weighed the
1
“Light work involves lifting no more than 20 pounds at a time with frequent lifting
or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be
very little, a job is in this category when it requires a good deal of walking or standing, or
when it involves sitting most of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full or wide range of light work, you
must have the ability to do substantially all of these activities.” 20 CFR 404.1567(b).
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medical assessments, and evaluated Plaintiff’s credibility as described below.
1. Plaintiff’s Testimony
Plaintiff was 50 years old at the time of the administrative hearing. She received
a high school education and was employed by the City of Flint performing street
maintenance and was reassigned to a clerical position after a period of workers’
compensation as a “make work” job, designed specifically in a restricted capacity for city
workers who had previously been on workers’ compensation. (Id. at 60) Plaintiff began
her clerical position on June 2006 and she stopped working on June 8, 2012.
At the administrative hearing, Plaintiff testified that she is unable to work due to a
combination of symptoms. She stated that her CTS caused pain in her hands with
recurrent numbness and weakness. (Id. at 44) Plaintiff testified her physical limitations
prevented her from working and interfered seriously with her ability to perform daily
tasks. She noted that, due to her CTS, she was unable to lift more than 5-10 pounds for
more than a few minutes. (Id. at 48) She reported no problems walking or standing,
and that her daily activities include light chores such as laundry and dish washing. (Id.
at 80-82) Plaintiff testified that while doing clerical work, her responsibilities included
answering about four or five phone calls in an eight-hour day, as well as filing mail and
waiting on customers.
(Id. at 81)
Plaintiff stopped working when the restricted
employment ended on June 8, 2012. Plaintiff also testified that she was suffering from
anxiety and depression, which caused considerable problems with activities of daily
living, and that on several days per month, she was unable to perform most activities.
(Id. at 46)
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2. Physical Assessments
The ALJ considered Plaintiff’s medical history, including the opinions of several
physicians.
The ALJ observed that Plaintiff’s medical records reflect a history of
“moderate” bilateral CTS dating back to 2002. (Id. at 44) The ALJ noted that this
condition had been treated through Plaintiff’s primary care provider with pain medication
and nocturnal wrist braces.
The ALJ’s decision referenced EMG studies by Nael M. Tarakji, M.D., dating
from August 2002 and May 2012, and from D. V. Pasupuleti, M.D., dating from March
2004, stating that although Plaintiff exhibited evidence of CTS, Plaintiff’s symptoms
were only “moderate” in severity. (Doc. 8-7, ID 249, 291, 295)
The ALJ also referenced medical reports by Plaintiff’s primary care physician
Elmadhi Saeed, M.D., dating from August 2011 to December 2013. In February 2012,
Dr. Saeed stated that Plaintiff complained of symptoms of CTS that had surfaced
“months ago.” (Id. at 260) The exam revealed that Plaintiff had a tender left wrist that
was consistent with CTS. (Id. at 262) Dr. Saeed stated that although Plaintiff’s CTS
symptoms were chronic, they only moderately limited Plaintiff’s activities. (Id.) The
same diagnosis was repeated in March and May 2012. (Id. at 254, 257) Similarly, in
August and September 2012, and in May, July, and September 2013, Dr. Saeed again
described Plaintiff’s symptoms of CTS in both hands, however noting that these
symptoms only moderately limited her activities. (Id. at 350, 359, 362, 368, 371)
In October 2012, Quan Nguyen, M.D., a consultant for the State agency,
reviewed Plaintiff’s medical records and opined that she was capable of lifting 10
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pounds frequently and 20 occasionally, with an unlimited ability to push or pull within
those weight restrictions.
(Doc. 8-3, ID 107)
He further found she could only
occasionally climb ladders, ropes or scaffolds, but had unlimited ability to engage in
other postural activities. (Id. at 108) She was limited to only frequent handling due to
her CTS but had no limitation to fine manipulation using her fingers. (Id.)
3. Mental Assessments
Relevant here, the ALJ noted that in May and June 2011, Plaintiff’s psychiatrist,
Nikhil Vora, M.D., observed that Plaintiff had a dysphoric mood and flat affect, but
showed no signs of psychosis and had fair psychomotor functioning and insight. (Id. at
338-39) In September 2011, Plaintiff was discharged from care because her condition
had improved. (Id. at 329) Plaintiff was assigned a Global Assessment of Functioning
(GAF) score of 702 and was not required to follow a discharge plan. (Id.)
The ALJ noted that Plaintiff did not seek therapy services again until January
2014. Plaintiff return to Dr. Vora, who completed a check-box questionnaire in which he
rated Plaintiff’s ability as “poor” or “none” in every area of job functioning except
“[m]aintain[ing] personal appearance,” for which Plaintiff received a “fair” rating. (Id. at
375-76)
As clinical support for his assessment, Dr. Vora cited poor thought
organization, comprehension, and memory; emotional instability; and “depression,
compromised cognitive skills, crying spells, anxiety, helplessness, hopelessness.” (Id.
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The GAF scale is a method of considering psychological, social, and occupational
function on a hypothetical continuum of mental health. The GAF scale ranges from 0 to
100, with serious impairment in functioning at a score of 50 or below. Scores between
51 and 60 represent moderate symptoms or moderate difficulty in social or occupational
functioning.
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at 376)
The ALJ gave little weight to Dr. Vora’s conclusions, explaining that “the basis for
[Dr. Vora’s] opinion is not clear from the evidence of record” and that Dr. Vora “appears
not to have examined [Plaintiff] for several years before the completion of [the checkbox questionnaire.]” (Doc. 8-2, ID 50) The ALJ stated that although Dr. Vora includes
extreme mental limitations, his January 2014 report noted no serious cognitive deficits
and indicated only moderate symptoms. Finally, the ALJ stated that Dr. Vora’s opinion
was “explicitly inconsistent” with the contemporaneous psychological examinations, and
was not consistent with the record as a whole or with objective medical findings. (Id.)
4. Plaintiff’s Credibility
After considering the record, Plaintiff’s testimony, and her credibility, the ALJ
concluded:
The evidence of record is not strongly supportive of [Plaintiff’s] allegations
regarding the limiting effects of her impairments. . . . Indeed, her CTS
appears to have remained stable for years: EMG studies from 2002 to
2012 continue to suggest “moderate” levels of disease, despite the fact
that the [Plaintiff] worked for much of that period. . . . Again, the record
suggests that her CTS remained stable for years and this condition does
not prevent some use of the hands or performance of some full-time work
activities. . . . On the whole, [Plaintiff’s] physical impairments appeared
generally stable during the relevant period, and there is no reasonable
indication that they prevented her from performing some significant
physical activity. [Plaintiff’s] allegations of very serious problems using the
hands and other physical difficulties are not consistent with this evidence
and are not wholly credible.
(Doc. 8-2, ID 49)
B. Plaintiff’s Objections to the R&R
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Plaintiff advances three primary objections to the ALJ’s decision. First, she says
that the ALJ erred in finding that her accommodated clerical work constituted SGA.
Second, she says that the ALJ erred in finding that she was able to use her hands on a
frequent basis. Finally, she says the ALJ erred by failing to give controlling weight to
her treating psychiatrist, Dr. Vora, who offered opinions supporting a finding of disability.
Each objection is addressed in turn.
III. STANDARD OF REVIEW
Judicial review of a Social Security disability benefits application is limited to
determining whether the commissioner “has failed to apply the correct legal standards
or has made findings of fact unsupported by substantial evidence in the record.”
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). A reviewing court
may not resolve conflicts in the evidence or decide questions of credibility. Brainard v.
Sec’y of HHS, 889 F.2d 679, 681 (6th Cir. 1989). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971). It is “more than a scintilla but less
than a preponderance.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 299 (1938). The
Substantiality of the evidence must be based upon the record taken as a whole.
Futernick v. Richardson, 484 F.2d 647, 649 (6th Cir. 1973). The substantial evidence
standard “presupposes that there is a zone of choice within which the decision makers
can go either way, without interference with the courts.” Mullen v. Bowen, 800 F.2d
535, 545 (6th Cir. 1986). The portions of the R&R that the claimant finds objectionable
are reviewed de novo. 28 U.S.C. § 636(b)(1)(c); Smith v. Detroit Fed’n of Teachers,
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Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987).
IV. DISCUSSION
A. Substantial Gainful Activity
Plaintiff says that the ALJ erred in finding that her clerical job constituted
substantial gainful activity (SGA). Specifically, Plaintiff says that her clerical work from
June 2006 to June 2012 does not constitute SGA under Social Security regulations
because it was not actual work but “sheltered” or “accommodated” work. She says that
the ALJ ignored her testimony regarding her clerical duties and erred in finding that her
work during this period did not constitute “sheltered work” under the Social Security
regulations. This argument lacks merit.
1. Controlling Authority
To establish entitlement to benefits based on disability, Plaintiff must prove that
she is unable “to engage in any [SGA] 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 months.” 42
U.S.C. § 423(d)(1)(A); Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). The ALJ
used several guides to decide whether the work a claimant has done constitutes SGA.
20 CFR 404.1574(a).
Social Security regulations state that work that is considered “sheltered work”
may not constitute SGA, if it can be shown that the claimant is not truly earning the
amounts he or she is being paid. 20 C.F.R. § 404.1574(a)(3).
Whether the work
constitutes “sheltered work” depends on the “reasonable worth of the work, rather than
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on the actual amount of the earnings.” Id. Thus, “the presumption of [SGA] . . . can be
rebutted by evidence of the nature of the applicant’s work, the conditions of employment
and the adequacy of the applicant’s performance.” Dinkel v. Sec’y of Health & Human
Servs., 910 F.2d 315, 319 (6th Cir. 1990).
2. The ALJ’s Conclusions Are Well Supported
At the administrative hearing, Plaintiff testified regarding her duties while in the
clerical position, and argued that this constitutes sheltered work.
The ALJ stated,
however, that such an analysis must consider the nature of the work, and generally
requires an employer’s report, which was not included here. (Doc. 8-2, ID 92-94) In
addition, the ALJ stated that Plaintiff’s arguments concerning sheltered work is separate
and unrelated to the issue at hand—i.e., whether Plaintiff retains the RFC to perform a
limited range of work. (Id.) The ALJ concluded that Plaintiff was engaged in SGA
through June 8, 2012—a period which includes her time working in the clerical position.
The ALJ further stated that Plaintiff’s ability to work during this period supported the
conclusion that her CTS was not a disability. (Id. at 44) The ALJ’s conclusions are well
supported.
To begin, Plaintiff did not produce an employer’s report documenting her work
responsibilities during her six years of clerical work. She offered no evidence, other
than her testimony, which would allow the ALJ to find that she was not truly earning the
amounts she was being paid.
The ALJ was correct in recognizing that Plaintiff’s
subjective explanations could not overcome the burden necessary to demonstrate that
her clerical duties constituted sheltered work. See, e.g., Dinkel v. Sec’y of Health &
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Human Servs., 910 F.2d 315, 319 (6th Cir. 1990) (finding that the claimant failed to
meet the burden of showing that her work was sheltered work pursuant to 20 C.F.R. §
404.1574(a)(3))).
Second, the ALJ was in correct in noting that “sheltered work” is a separate issue
from whether Plaintiff is disabled. Thus, even if Plaintiff’s duties were to constitute
sheltered work, the ALJ’s finding that Plaintiff is not disabled cannot be disturbed if the
record as a whole supports that determination. See Dekruger v. Comm’r of Soc. Sec.,
No. 08-10410, 2009 WL 596123, at *11-12 (E.D. Mich. Mar. 9, 2009) (even if claimant is
correct that past work was not SGA, the error is harmless where the record as a whole
supports the determination that the claimant was not disabled). Thus, any error made
by the ALJ in this respect is harmless.
Finally, the ALJ reached her decision regarding Plaintiff’s SGA upon finding that
Plaintiff’s statements at the hearing were not fully credible. Courts commonly defer to
an ALJ’s credibility finding because “[t]he opportunity to observe the demeanor of a
witness, evaluating what is said in the light of how it is said, and considering how it fits
with the rest of the evidence gathered before the person who is conducting the hearing,
is invaluable, and should not be discarded lightly.” Keeton v. Comm’r of Soc.Sec., 583
Fed. Appx. 515, 531 (6th Cir. 2014) (quoting Beavers v. Sec. of Health, Ed. & Welfare,
577 F.2d 383, 387 (6th Cir. 1978)).
For these reasons, the ALJ’s finding that Plaintiff was engaged in SGA through
June 8, 2012 is well supported by evidence in the record.
B. The ALJ’s RFC Analysis
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Next, Plaintiff objects to the ALJ’s RFC finding that Plaintiff is capable of frequent
handling, fingering, and feeling with her hands with no continuous writing. Plaintiff says
that “the medical records as well as Plaintiff’s testimony indicates that Plaintiff, at most
would be able to use her hands on an occasional basis.” (Doc. 16, ID 455) Plaintiff
further says that the medical records “clearly establish” she is suffering from CTS that
causes severe limitations in the use of her hands. (Id.) This argument lacks merit.
To begin, Plaintiff relies on the very evidence that the ALJ found was not entirely
credible—her own subjective testimony. See Part II.A.4, supra. The ALJ declined to
credit Plaintiff’s subjective statements, explaining that the objective medical evidence of
record and Plaintiff’s own reported daily activities do not reach the degree of claimed
limitations that the record credibly supports. See Stanley v. Sec’y of Health & Human
Servs., 39 F.3d 115, 118-19 (6th Cir. 1994) (“[T]he ALJ is not obliged to incorporate
unsubstantiated complaints into [his or her analysis]”); Casey v. Sec’y of Health &
Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993) (holding that the ALJ is required to
incorporate only those limitations that the record credibly supports).
The ALJ considered a wide range of evidence regarding Plaintiff’s physical
limitations. However, the record repeatedly shows that Plaintiff’s symptoms related to
CTS were only “moderate” in severity and only “moderately limited her activities.” See
Part II.A.2, supra.
The ALJ noted that that the only doctor to specifically address
Plaintiff’s handling ability was state examiner Dr. Nguyen, who determined that she was
capable of frequent handling. The ALJ properly determined that Plaintiff’s condition has
remained relatively stable since 2002, and did not deteriorate despite her complaints of
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worsening pain.
ALJ properly determined that Plaintiffs allegations of serious limitations in using
her hands were not consistent with the evidence of record. The ALJ’s determination is
therefore supported by substantial evidence and should not be disturbed.
C. Dr. Vora’s Opinion
Finally, Plaintiff objects to the ALJ’s rejection of Dr. Vora’s opinion. Plaintiff says
that the “ALJ is not empowered to reject the opinion of a treating physician.” (Doc. 16,
ID 455) Plaintiff says that the ALJ violated the Treating-Source Rule by giving little
weight to Dr. Vora’s January 30, 2014, medical source statement, which indicated that
Plaintiff’s mental symptoms are so severe she has poor or no significant ability to
perform even basic mental work. (Doc. 8-2, ID 50) For several reasons, this argument
is without merit.
1. Controlling Authority
The Social Security Administration defines three types of medical sources: nonexamining sources, non-treating (but examining) sources, and treating sources. See 20
C.F.R. § 404.1502; see also Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 514 (6th Cir.
2010). A physician qualifies as a treating source if there is an “ongoing treatment
relationship” such that the claimant sees the physician “with a frequency consistent with
accepted medical practice for the type of treatment and/or evaluation required for [the]
medical condition.” 20 C.F.R. § 404.1502.
Under the “Treating-Source Rule,” the opinions of a claimant’s treating physician
are generally given more weight than those of non-treating and non-examining
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physicians. 20 C.F.R. § 404.1527(c)(2). When an ALJ does not give a treating source’s
opinion controlling weight, the ALJ must consider a number of factors in considering
how much weight is appropriate.3 Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242
(6th Cir. 2007).
Further, the ALJ is procedurally required to give “good reasons” for discounting
treating physicians’ opinions, which are “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.” Rogers, 486 F.3d at 242 (quoting Soc. Sec.
Rul. 96–2p, 1996 WL 374188, at *4).
“However, this requirement only applies to
treating sources.” Ealy, 594 F.3d at 514 (citation omitted) (emphasis in original).
2. Dr. Vora’s Opinion Is Not Entitled to Controlling Weight
The ALJ appropriately determined that Dr. Vora’s opinion was not entitled to
controlling weight.
The record shows that the ALJ considered several factors in
evaluating the weight of Dr. Vora’s opinions and provided numerous reasons supporting
his conclusion.
To begin, the ALJ concluded that Dr. Vora’s medical source statement did not
qualify as an opinion from a treating source that is entitled to controlling weight. “A
physician qualifies as a treating source if the claimant sees her ‘with a frequency
consistent with accepted medical practice for the type of treatment and/or evaluation
required for [the] medical condition.’ ” Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876
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The length of the treatment relationship with the physician, the nature and extent
of that relationship, the frequency of examination, the supportability of the physician’s
opinion, the consistency of that opinion with the record as a whole. Wilson v. Comm’r of
Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).
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(6th Cir. 2007) (alteration in original) (quoting 20 C.F.R. § 404.1502). Here, the ALJ
explained that Dr. Vora had not examined Plaintiff in nearly two and a half years,
between September 2011 and January 2014. Because of this long gap in treatment,
Plaintiff cannot demonstrate the frequency of treatment necessary to show that Dr. Vora
is a treating source.
Moreover, the ALJ determined that Dr. Vora’s opinion did not comport with his
own notes from that examination, and that his assessment appeared to be “explicitly
inconsistent with the contemporaneous examination report of record.” (Doc. 8-2, ID at
50) The ALJ noted that in the medical source statement, Dr. Vora included extreme
mental limitations; however, the only examination report of Dr. Vora dating from January
2014 describes no extreme mental deficits. The ALJ also concluded that Dr. Vora’s
statements concerning the severity and restricting effects of Plaintiff’s depression and
anxiety should not be strongly weighed because Dr. Vora provided little narrative
support for his opinions, and his checked box responses in his medical form did not
follow logically from his clinical findings.
Finally, the ALJ gave limited weight to Dr. Vora’s opinion because his “opinion
[did] not appear to be consistent with objective medical findings, given the evidence of
record and the few examinations.” (Doc. 8-2, ID at 51) See Bogle v. Sullivan, 998 F.2d
342, 345, 347-48 (6th Cir. 1993) (holding that the ALJ can discount treating source
opinion that is unsupported by objective evidence or inconsistent with other substantial
evidence, including the physician’s own findings). The ALJ found that Plaintiff’s primary
care physician records did not report symptoms of depression or anxiety that could
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reasonably be expected to result in the extreme limitations noted by Dr. Vora.
The ALJ provided good reasons for discounting Dr. Vora’s opinion, which are
supported by substantial evidence in the record. Plaintiff’s objection therefore cannot
prevail.
VI. CONCLUSION
For the reasons stated above, the R&R is adopted as the findings and
conclusions of the Court, supplemented as above.
Plaintiff’s motion for summary
judgment has therefore been denied, and the Commissioner’s motion for summary
judgment granted. This case is DISMISSED.
SO ORDERED.
Dated: 8/11/2015
s/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
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