Mullins v. Social Security, Commissioner of

Filing 19

MEMORANDUM OPINION and ORDER. Signed by Magistrate Judge Patricia T. Morris. (KKra)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LORI A. MULLINS,
Plaintiff,

CASE NO. 2:14-CV-13288-PTM

v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

MAGISTRATE JUDGE PATRICIA T. MORRIS

/
OPINION AND ORDER 1
I.

INTRODUCTION
This is an action for judicial review of Defendant’s decision denying Plaintiff’s claim

for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) benefits.
The case is before this magistrate judge pursuant to the parties’ consent under 28 U.S.C. §
636(c) and District Judge Gerald E. Rosen’s order of reference. (Doc. 15.) Pursuant to E.D.
Mich. LR 7.1(e)(2), Plaintiff’s Motion for Sentence Four Remand (Doc. 13) and Defendant’s
Response and Motion for Summary Judgment (Docs. 17) will be decided without oral
argument. The Court has also reviewed Plaintiff’s response to Defendant’s motion. (Doc. 18.)
II.

ANALYSIS
A.

1

Background

The format and style of this Opinion and Order are intended to comply with the requirements of the EGovernment Act of 2002, Pub. L. 107-347, 116 Stat. 2899 (Dec. 17, 2002), Fed. R. Civ. P. 5.2(c)(2)(B), E.D.
Mich. Administrative Order 07-AO-030, and guidance promulgated by the Administrative Office of the United
States Courts found at: http://www.uscourts.gov/RulesAndPolicies/JudiciaryPrivacyPolicy/March2008
RevisedPolicy.aspx. This Order only addresses the matters at issue in this case and is not intended for
publication in an official reporter or to serve as precedent.

Plaintiff Lori Mullins was forty-two years old at the time of the administrative hearing
on September January 28, 2013. (Transcript, Doc. 10 at 25, 151.) Plaintiff worked as an
assistant manager at a car dealership, a collections account representative, a cashier, a customer
service representative, and in home health care before her alleged disability onset date. (Tr. at
202.) Plaintiff filed her claims for DIB and SSI on January 27, 2012, alleging that she became
unable to work on December 22, 2011. (Tr. at 151, 166.) The claims were denied at the initial
administrative stage. (Tr. at 97, 98.) In denying Plaintiff’s claims, the Commissioner
considered affective disorders and anxiety-related disorders. (Id.) On March 22, 2013, Plaintiff
appeared before Administrative Law Judge (“ALJ”) Dawn M. Gruenburg, who considered the
application for benefits de novo. (Tr. at 25-72.) In a decision dated May 16, 2013, the ALJ
found that Plaintiff was not disabled. (Tr. at 6-24.)
On June 27, 2014, the ALJ’s decision became the final decision of the Commissioner,
see Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004), when the Appeals
Council denied Plaintiff’s request for review. (Tr. at 1-4.) On August 25, 2014, Plaintiff filed
the instant suit seeking judicial review of the Commissioner’s unfavorable decision. (Doc. 1.)
B.

Standard of Review

The Social Security Administration has promulgated the following rules for the
administration of disability benefits. See 20 C.F.R. §§ 401-422. First, a state agency, acting
under the authority and supervision of the Administration, usually makes the initial
determination of whether a person is disabled. 20 C.F.R. § 404.1503; Bowen v. Yuckert, 482
U.S. 137, 142 (1987). If denied, the claimant may seek review of the state’s decision through
the Administration’s three-stage review process. Bowen, 482 U.S. at 142. In the first step of
this process, the state’s disability determination is reconsidered de novo by the state agency. Id.
2

Next the claimant has the right to a hearing before an ALJ. Id. Finally, “the claimant may seek
review by the Appeals Council.” Id. Only after the Commissioner has issued a final
administrative decision that is unfavorable may the claimant file an action in federal district
court. Id.; Mullen v. Bowen, 800 F.2d 535, 537 (6th Cir. 1986) (en banc).
This Court has original jurisdiction to review the Commissioner’s final administrative
decisions under 42 U.S.C. § 405(g). This is a limited review where we “‘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.’” Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005) (quoting
Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004); see also Walters v. Comm’r
of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997).
C.

The ALJ’s Five-Step Sequential Analysis

The “[c]laimant bears the burden of proving his [or her] entitlement to benefits.” Boyes
v. Sec’y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994); accord Bartyzel v.
Comm’r of Soc. Sec., 74 F. App’x 515, 524 (6th Cir. 2003). While, in general, the claimant “is
responsible for providing the evidence” to make a residual functional capacity (“RFC”)
assessment, before a determination of not disabled is made, the Commissioner is “responsible
for developing [a claimant’s] complete medical history, including arranging for a consultative
examination[] if necessary.” 20 C.F.R. § 404.1545(a)(3).
Title II, 42 U.S.C. §§ 401-434, provides DIB to qualifying wage earners who become
disabled prior to the expiration of their insured status; Title XVI, 42 U.S.C. §§ 1381-1385,
provides Supplemental Security Income (“SSI”) to poverty-stricken adults and children who
become disabled. F. Bloch, Federal Disability Law and Practice § 1.1 (1984). “DIB and SSI
3

are available only for those who have a ‘disability.’” Colvin v. Barnhart, 475 F.3d 727, 730
(6th Cir. 2007). “Disability” means:
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 12 months . . . .
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). 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). “If the Commissioner makes a dispositive finding at any point in the five-step
process, the review terminates.” Colvin, 475 F.3d at 730.
“Through step four, the claimant bears the burden of proving the existence and severity
of limitations caused by” an impairment that precludes performance of past relevant work.
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003) (cited with approval in Cruse
4

v. Comm’r of Soc. Sec., 502 F.3d 532, 540 (6th Cir. 2007)). If the analysis reaches step five,
the burden shifts to the Commissioner to show that “other jobs in significant numbers exist in
the national economy that [the claimant] could perform given [his or] her RFC and considering
relevant vocational factors.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)
(citing 20 C.F.R. §§ 416.920(a)(4)(v), 416.920(a)(4)(g)); see also Combs v. Comm’r of Soc.
Sec., 459 F.3d 640, 643 (6th Cir. 2006).
D.

The ALJ’s Findings

The ALJ applied the five-step disability analysis to Plaintiff’s claim and found at Step
One that Plaintiff met the insured status requirements through December 31, 2016, and had not
engaged in substantial gainful activity since December 22, 2011, the alleged onset date. (Tr. at
11.) At Step Two, she found that Plaintiff’s conditions of major depression, bipolar disorder,
and panic disorder were “severe” within the meaning of 20 C.F.R. § 404.1520 and § 416.920.
(Id.) At Step Three, she found that Plaintiff did not have an impairment or combination of
impairments that met or was the medical equivalent of a listing in the regulations. (Tr. at 1314.) At Step Four, she found that Plaintiff could perform unskilled light work with several
limitations and was unable to perform any past relevant work. (Tr. at 15.) She also found that
Plaintiff was forty-one years old on the alleged onset date, putting her into the “younger
individual” range of eighteen to forty-nine years old. (Tr. at 18.) At Step Five the ALJ found
that, considering Plaintiff’s age, education, work experience, and RFC, there were jobs existing
in the economy in significant numbers that Plaintiff could perform, and therefore Plaintiff was
not disabled. (Tr. at 18-19.)
E.

Administrative Record

1.

Medical History
5

In 1975, when Plaintiff was five years old, she received a psychological evaluation from
Dr. La Verne La Driere. (Tr. at 283-85.) The test results indicated she was “normally adjusted
youngster of average intellectual ability with no obvious defects in functioning. Personality
assets include[d] an outgoing disposition, ease in intrapersonal relationships and good reality
contact. Her liabilities [were] primarily in her relationship to and intense identification with her
mother and the anxieties this generate[d] for her.” (Id.)
Plaintiff was hospitalized in December 2005 for psychiatric treatment. (Tr. at 297.)
Plaintiff began outpatient treatment at Michigan Psychiatric and Behavioral Associates on
January 2, 2007 because she was having suicidal thoughts. (Tr. at 292.) Plaintiff saw Dr.
Douglas L. Foster on January 3. (Tr. at 286-87.) She said that she had suicide plans of running
a car into a wall or overdosing on pills. (Id.) Plaintiff had been a victim of physical abuse from
boyfriends and husbands, was molested as a young child, and was raped at age fifteen. (Tr. at
286-87, 290.) She also had lost her infant son to Sudden Infant Death Syndrome (“SIDS”) in
December 1992. (Tr. at 286-87.) Dr. Foster noted that she had spontaneous thoughts of suicide,
which seemed to manifest most often in the month of December. (Id.) Dr. Foster gave Plaintiff
a Global Assessment of Functioning (“GAF”) score of 40. 2 (Tr. at 288.) His impression was
major depression and he started Plaintiff on Celexa. (Tr. at 287.) He found her major stressors
were unresolved abuse and anger issues and low self-esteem. (Tr. at 288.) He also
recommended she seek treatment for substance abuse. (Id.) On April 11 Plaintiff’s GAF score

2

According to the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders, a GAF
score of 31-40 indicates “[s]ome impairment in reality testing or communication (e.g., speech is at times
illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations,
judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child
frequently beats up younger children, is defiant at home, and is failing at school).”Am. Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed., text rev. 2000) [hereinafter DSM-IV]. The
fifth edition of the DSM, however, rejects the use of GAF scores altogether. Am. Psychiatric Ass’n, Diagnostic
and Statistical Manual of Mental Disorders 16 (5th ed., 2013).

6

was 68. 3 (Tr. at 292.) Plaintiff was discharged from outpatient treatment on June 26, 2007,
after making “significant progress in decreasing her depression,” because she was not
complying with her medications and stopped attending her appointments. (Tr. at 291-92.)
On May 31, 2008, Plaintiff overdosed on medications and had snorted cocaine. (Tr. at
289.) Dr. Mukesh Lathia started her on Zoloft and recommended that she transfer to the Mental
Health Unit of Michigan Psychiatric and Behavioral Associates. (Id.) Plaintiff went against this
recommendation and was discharged on June 10. (Tr. at 289, 300.) On August 20 Plaintiff
reported hypomanic symptoms—she would be “extremely happy, talk a lot, would be giddy,
goofy, would spend a lot of money, would go through significant cleaning sprees, and would
also have increased sexual desire.” (Id.) She was started on Lamical, which was discontinued
because she developed hives. (Id.) Also on August 20, Plaintiff was placed on Depakote, which
was replaced with Trileptal on August 28 because she felt like a “zombie” and she “was crying
all the time.” (Id.)
Plaintiff saw Dr. Lathia on October 30, 2008. (Tr. at 289-91.) Plaintiff was living with
her mother and working as an office manager at this time. (Id.) She had two living children: an
eight-year-old son living with his father, and an eighteen-year-old son. (Id.) A mental status
examination showed normal speech; anxious mood; significantly less dysphoric but still
anxious affect; goal-directed and coherent thought process; no auditory, visual, or olfactory
hallucinations; emphatic denial of suicidal or homicidal ideations, plans, or intent; a strong
contract for safety; fair judgment; limited insight; and no cognitive deficit. (Id.) Plaintiff was
compliant with and reported that she was doing well on her combination of medications,
3

A GAF score of 61-70 indicated, “[s]ome mild symptoms (e.g., depressed mood and mild insomnia)
OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the
household), but generally functioning pretty well, has some meaningful interpersonal relationships.” DSM-IV,
supra at 34.

7

Trileptal and Zoloft, but inquired about increasing the dose of Trileptal. (Id.) Dr. Lathia said
that Plaintiff “was initially diagnosed with major depression, recurrent, but it is obvious that
she has bipolar disorder.” (Id.) Plaintiff was assessed with a GAF score of 45. 4 (Id.) Dr. Lathia
increased Plaintiff’s dose of Trileptal and also started her on Abilify. (Id.) Plaintiff was not
currently attending AA meetings, but was remaining sober. (Id.)
On September 25, 2011, Plaintiff was admitted to Bay Regional Medical Center for an
alleged assault. (Tr. at 358-59.) She suffered a contusion to the head and was treated with a
Toradol shot. (Id.)
On April 26, 2012, Plaintiff had a psychological consultative examination from Dr.
Michael Brady. (Tr. at 313-18.) She reported daily panic attacks, confusion, a lifetime of
depression, lack of motivation, problems getting out of bed, disorientation, problems thinking
and staying focused, anger, past suicide attempts, feelings of worthlessness, social isolation,
hopelessness about future, anhedonia, diminished libido, and problems sleeping. (Id.) She was
living with a roommate at the time, she had several close friends but rarely spoke with them,
and she got along “fair” with family members. (Id.) She had no current interests—she used to
“enjoy going to movies, spending time with friends and family, roller skating, taking walks,
and bicycling.” (Id.) On a typical day she woke up at 2:00 p.m., watched television, and went
to bed a 10:00 p.m. but would not fall asleep for hours. (Id.) She typically ate one meal a day
and did her own cooking and cleaning. (Id.) She appeared to be “in contact with reality,” she
felt worthless, there was “no unusual motor activity or hyperactivity,” and she “did not appear
to have a tendency to minimize or exaggerate” her symptoms. (Id.) “Her thoughts were

4

A GAF score of 41-50 indicated, “[s]erious symptoms (e.g., suicidal ideation, severe obsessional
rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no
friends, unable to keep a job).” DSM-IV, supra at 34.

8

spontaneous and well organized. There were no problems in pattern or content of speech.” (Id.)
She denied “any auditory or visual hallucinations, delusions, obsessions, persecutions, or
unusual powers. She reported feelings of worthlessness and occasional suicidal thoughts.” (Id.)
She only got five to six hours of sleep per night. (Id.) She appeared depressed throughout the
evaluation and was oriented times three. (Id.)
“Results of the mental status examination revealed abnormalities in abstract reasoning.”
(Id.) Dr. Brady found that Plaintiff’s “ability to relate and interact with others, including
coworkers and supervisors, [was] impaired,” and that “[h]er depression and distress could
affect her interpersonal relationships in the workplace.” (Id.) He also opined, “[h]er ability to
maintain concentration was fair” and “[h]er ability to withstand the normal stressors associated
with a workplace setting [was] somewhat impaired.” (Id.) He diagnosed her with “Major
Depressive Disorder, recurrent, moderate”; and “Panic Disorder, without agoraphobia.” (Id.)
He gave her a GAF score of 55. 5 (Id.)
Plaintiff had a clinical assessment to create a “person-centered” treatment plan for her
symptoms at Crossroads Center for Recovery on June 11, 2012. (Tr. at 319-23.) She planned
on attending group therapy sessions and getting individual psychiatric services. (Id.) Plaintiff
saw Dr. David Picone on June 27, July 25, and September 28, 2012. (Tr. at 324-35.) She
attributed her symptoms to past abuse and trauma. (Id.) She continued to have problems with
irritability, sadness, and sleep. (Id.) She had primarily depressive symptoms “intermingled with
symptoms of manic process.” (Id.) She did not report any obsessive, intrusive, or persistent
thoughts or compulsive, ritualistic acts. Her affect was appropriate and she exhibited a

5

A GAF score of 51-60 indicated “[m]oderate symptoms (e.g., flat affect and circumstantial speech,
occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends,
conflicts with peers or co-workers).” DSM-IV, supra at 34.

9

paranoid manner. (Id.) She denied hallucinations and delusions; she did not report any
“symptoms of psychotic process[es].” (Id.) She presented as “irritable, fully communicative,”
and relaxed. (Id.) Her demeanor was “glum,” her thinking was logical, and her thought content
was appropriate. (Id.) She denied suicidal and homicidal ideas and intentions. (Id.) Her insight
into problems was fair, her social judgment was fair, there were no signs of anxiety, there was
evidence of a short attention span, and no signs of withdrawal or intoxication. (Id.) She was
diagnosed as bipolar and depressed, tried a few combinations of medications, but she ended up
taking lithium. (Tr. at 325.)
Nurse Practitioner Lawrence Beek saw Plaintiff on January 31 and March 1, 2013 at
Crossroads. (Tr. at 429-30.) She was having difficulty sleeping—she would wake up around
3:00 a.m. or 4:00 a.m. and not be able to fall back to sleep and she would nap throughout the
day. (Id.) Mr. Beek counseled her that her naps were likely one of the reasons she had
difficulty sleeping properly at night. (Id.) Upon mental examination her affect was “reactive”;
her speech was “well-modulated”; and while she denied homicidal or suicidal ideations, she
admitted to “intermittent fleeting suicidal ideations,” but said that if they became too strong
she would contact emergency services before acting on them. (Id.)
Mr. Beek submitted an undated Mental Impairment Questionnaire, indicating that he
had “only had the opportunity to conduct medication reviews” with Plaintiff twice. (Tr. at 41013.) For Plaintiff’s signs and symptoms, Mr. Beek only indicated with a checkmark that she
had sleep disturbance, mood disturbance, and emotional ability. (Id.) He did not check, among
other things, difficulty thinking or concentrating, suicidal ideation or attempts, intrusive
recollections of a traumatic experience, or hostility and irritability. (Id.) He indicated with a
checkmark that she had “moderate” limitations in the ability to deal with ordinary work stress,
10

that she would be off task “up to 1 hour” in an eight hour work day, that she would be absent
from work “about once a month,” and that her impairments had lasted or were expected to last
at least twelve months. (Id.)
Plaintiff was “not significantly limited” in her ability “to remember locations and worklike procedures,” to “understand and remember [and carry out] one or two-step instructions,”
to “sustain an ordinary routine without supervision,” to “work in coordination with or
proximity to others without being distracted by them,” to “make simple work-related
decisions,” to “interact appropriately with the general public,” and “to ask simple questions or
request assistance.” (Id.) She was moderately limited in her ability to “understand and
remember detailed instructions,” to “maintain attention and concentration for extended
periods,” to “perform activities within a schedule, maintain regular attendance, and be punctual
within customary tolerances,” to “complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a consistent pace
without an unreasonable number and length of rest periods,” to “accept instructions and
respond appropriately to criticism from supervisors,” to “get along with co-workers or peers
without distracting them or exhibiting behavioral extremes,” to “maintain socially appropriate
behavior and to adhere to basic standards of neatness and cleanliness,” to “respond
appropriately to change in the work setting,” to “be aware of normal hazards and take
appropriate precautions,” to “travel in unfamiliar places or use public transportation,” and to
“set realistic goals or make plans independently of others.” (Id.) She was “markedly limited” in
her ability “to carry out detailed instructions.” (Id.)
2.

Adult Function Reports

11

Plaintiff completed an adult function report on February 22, 2012. (Tr. at 213-23.) On
an average day she would wake up and eat, shower, watch television, read the newspaper, and
try to visit people. (Tr. at 214.) However, sometimes she would not go anywhere because of
her mood swings, panic attacks, or lack of sleep from nightmares. (Id.) She did not take care of
any animals. (Id.) Before her condition she “used to be able to work and be[] sociable but these
last several years have gotten worse where I flip out [and am] afraid to be around people, [and
it is] hard for me to trust people around me.” (Id.) She did not have problems with her personal
care. (Id.) She needed reminders to take her medicine. (Id.) She prepared her own meals, but
she did not make full meals because she was afraid she would burn herself because of her lack
of concentration. (Tr. at 215.) She was able to clean the house, do laundry, iron, and do the
dishes; however, she sometimes needed reminders from friends or family. (Id.) She did not do
yardwork because she was afraid to “handle anything with blades.” (Tr. at 216.) She rarely
went outside, and never went out alone because she felt unsafe. (Id.)
Her hobbies included watching television, reading (although she was unable to
comprehend what she read), and biking. (Tr. at 217.) She spent time with others in person or
on the phone approximately one to two times a month. (Id.) She needed to be reminded of her
doctor appointments. (Id.) She had problems getting along with others because she would
“fight [and] argue with all my family members [and she had] resentful feelings to[ward] them
about when [she] was molested [and] neglected.” (Tr. at 218.) She was not as sociable as she
used to be because she could not trust anyone and felt “scared and nervous around others.”
(Id.) She reported problems with her memory, completing tasks, concentration, understanding,
following instructions, and getting along with others. (Id.) She had a very short attention span,
could follow written instructions “pretty well,” although she sometimes had to read them
12

several times, and could not follow spoken instructions very well. (Tr. at 218-19.) She did not
handle stress well at all and she did not like changes in her routine. (Tr. at 219.)
Plaintiff’s mother, Frieda A. Bacca, completed a third party adult function report on
February 28, 2012. (Tr. at 224-35.) Her daughter suffered from mood swings and panic attacks,
was unable to concentrate, and became nervous around people when she had her “outbu[r]sts.”
(Tr. at 224.) She could not sleep at night because of nightmares, but she slept a lot during the
day. (Tr. at 225.) She did not provide care for anyone else or for any pets. (Id.) She did not
have any problems providing for her personal care. (Id.) She needed reminders to take her
medicine. (Tr. at 226.) She prepared very simple meals for herself. (Id.) She did limited
housework and no yardwork. (Id.) She went outside three to four times a week. (Tr. at 227.)
She did not like going out alone because she was scared of having an outburst in public. (Id.)
According to her mother, Plaintiff’s hobbies included watching television, roller
skating, and bike riding. (Tr. at 228.) She occasionally would talk on the phone to friends and
family, but not as much as she used to. (Id.) She did not go outside to socialize, only to get
groceries and do laundry. (Id.) She had problems getting along with others because she
sometimes would have her “outbursts” around family members and friends. (Tr. at 229.) Her
mother noticed her social activities had changed since her conditions began because she had
“lost interest in a lot of things[] because of her bipolar [and] panic attacks.” (Id.) She indicated
that her daughter had problems concentrating, understanding, following instructions, and
getting along with others. (Id.) She added that her daughter became upset with people, and had
severe outbursts of anger. (Id.) She was unable to pay attention for very long, could not follow
written instructions well because she had problems concentrating and comprehending, and
could not follow spoken instructions very well because she would get frustrated easy and have
13

to hear the instructions several times in order to understand them. (Id.) She did not handle
stress well because of her outbursts. (Tr. at 230.) Changes in her routine upset her. (Id.)
3.

Administrative Hearing
a.

Plaintiff’s Testimony at Administrative Hearing

At the administrative hearing on March 22, 2013, Plaintiff testified as follows. On May
31, 2008 she overdosed on pills in a suicide attempt. (Tr. at 32.) She took her medications off
and on in 2008 and eventually stopped taking them in 2009. (Tr. at 34.) She had problems
sleeping at night. (Tr. at 35.) She had to stop working at the end of 2011 because she was using
her computer for personal use and she was having problems contacting “accounts.” (Id.) She
had not worked since. (Tr. at 36.) She did not feel that she would be able to work, probably not
even part time, because she would not be able to mentally handle any job. (Id.) She had a
problem sleeping at night and she often became tired during the day and would have to take
naps or just lie down. (Id.)
She had bipolar disorder which caused high days and low days. (Tr. at 37.) She said on
her high days she would have a lot more energy, be happier, feel better about herself, and get
more things done around the house. (Id.) However, during the low days she would have no
energy, just lay around all day, feel tired and depressed, ignore phone calls from family and
friends, and just remain locked in her room. (Id.) She estimated she experienced “low days”
three times per week. (Id.) She also had post-traumatic stress disorder (“PTSD”). (Tr. at 38.)
She had nightmares where she would think someone was physically hurting her or molesting
her. (Tr. at 39.) She also experienced flashbacks of past traumatic experiences: she had been
molested as a child, her father had died of cancer in prison, and she had discovered her son

14

dead in his crib from SIDS. (Tr. at 39-41.) At the time of the hearing she was taking lithium
three times a day. (Tr. at 41-42.)
b.

Plaintiff’s Mother’s Testimony at Administrative Hearing

Plaintiff’s mother also testified about her daughter at the administrative hearing. (Tr. at
48-55.) Her daughter had problems coping, concentrating, remembering things, and sleeping.
(Tr. at 49-50.) She cried a lot, had bad dreams, and had problems with low self-esteem. (Tr. at
50-51.) She had been molested when she was four years old and her father died of cancer while
in prison. (Tr. at 52-55.) She had attempted suicide when she was fifteen years old, and again
in 2008. (Tr. at 54-55.)
c.

Vocational Expert (“VE”) Testimony at Administrative Hearing

The ALJ asked the VE to assume an individual with Plaintiff’s age, education and work
experience with no exertional limitations, who was “capable of unskilled tasks, not at a
production rate, should work alone or in a small familiar group with occasional contact with
the public.” (Tr. at 66.) The VE said that the individual would not be able to perform any of
Plaintiff’s past work, but would be able to do other work. (Id.) The VE gave three examples,
all at the light level of exertion: 6000 office cleaner positions in the region (reduced for
occasional contact with public), 11,000 office helper positions, and 5400 production inspector
positions. (Tr. at 66-67.) The VE said that the above jobs would be available to the individual
with the following additional limitations: “light exertional limitation and . . . [the] need to work
in [an] environment that’s free from hazards such as unprotected heights, moving machinery;
the individual can work alone or in a small familiar group; the individual can have contact with
the public, [is] capable of simple tasks, not at a production rate.” (Tr. at 67.) The individual
would be able to maintain employment even if absent one day per month and off task up to ten
15

percent of the workday; however, being off task for fifteen percent of the workday would be
work preclusive. (Tr. at 68.)
F.

Governing Law and Analysis

1.

Legal Standard

The ALJ determined that Plaintiff had the RFC
to perform unskilled light work as defined in 20 CFR 404.1567(b) and
416.967(b). She can perform simple tasks. The claimant can work alone or
in small familiar groups. She can occasionally interact with the public. She
cannot perform production rate paced work. She must avoid hazards such
as unprotected heights and dangerous moving machinery. The claimant will
be expected to miss one day of work every month for mental health
maintenance.
(Tr. at 15.) The regulations define light work as involving
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. If someone can do light work, we
determine that he or she can also do sedentary work, unless there are
additional limiting factors such as loss of fine dexterity or inability to sit for
long periods of time.
20 C.F.R. § 404.1567(b).
After review of the record, I find that the ALJ utilized the proper legal standard in his
application of the Commissioner’s five-step disability analysis to Plaintiff’s claim. I turn next
to the consideration of whether substantial evidence supports the ALJ’s decision.
2.

Substantial Evidence

In deciding whether substantial evidence supports the ALJ’s decision, “we do not try the
case de novo, resolve conflicts in evidence, or decide questions of credibility.” Bass, 499 F.3d
at 509; see also Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). A reviewing court must
16

consider the evidence in the record as a whole, including any evidence that might subtract from
the weight of the Commissioner’s factual findings. Wyatt v. Sec’y of Health & Human Servs.,
974 F.2d 680, 683 (6th Cir. 1992). “Both the court of appeals and the district court may look to
any evidence in the record, regardless of whether it has been cited by the Appeals Council.”
Heston, 245 F.3d at 535. There is no requirement that either the ALJ or the reviewing court
discuss every piece of evidence in the administrative record. Kornecky v. Comm’r of Soc. Sec.,
167 F. App’x 496, 508 (6th Cir. 2006) (“‘[A]n ALJ can consider all the evidence without
directly addressing in his [or her] written decision every piece of evidence submitted by a
party.’” (quoting Loral Defense Systems-Akron v. N.L.R.B., 200 F.3d 436, 453 (6th Cir. 1999));
Van Der Maas v. Comm’r of Soc. Sec., 198 F. App’x 521, 526 (6th Cir. 2006).
If supported by substantial evidence, the Commissioner’s findings of fact are
conclusive. 42 U.S.C. § 405(g). Therefore, a court may not reverse the Commissioner’s
decision merely because it disagrees or because “‘there exists in the record substantial
evidence to support a different conclusion.’” McClanahan, 474 F.3d at 833 (quoting Buxton v.
Halter, 246 F.3d 762, 772 (6th Cir. 2001)); see also Mullen, 800 F.2d at 545. 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.” Cutlip v.
Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994); see also Jones, 336 F.3d at
475. “The substantial evidence standard presupposes that there is a ‘“zone of choice”’ within
which the Commissioner may proceed without interference from the courts.” Felisky v. Bowen,
35 F.3d 1027, 1035 (6th Cir. 1994) (citations omitted) (quoting Mullen, 800 F.2d at 545).
a.

Medical Source Evidence Governing Law

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The ALJ must “consider all evidence” in the record when making a disability decision.
42 U.S.C. § 423(d)(5)(B); accord 20 C.F.R. § 404.1520(a)(3); Wyatt, 974 F.2d at 683. Both
“acceptable” and non-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.” SSR 06-03p, 2006 WL 2329939, at *2. When
“acceptable medical sources” issue these opinions, the regulations deem the statements to be
“medical opinions.” 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. 20 C.F.R. § 404.1527(d).
The ALJ must use a six-factor balancing test to determine the probative value of these
medical opinions, including any treating source opinions that have not been given controlling
weight. 20 C.F.R. § 404.1527(c). The ALJ should use the same analysis for “other source”
opinions. See Cruse, 502 F.3d at 540-42; SSR 06-3p, 2006 WL 2329939, at *2. Further, an
ALJ must give a treating physician’s opinions regarding the nature and severity of a claimant’s
impairments controlling weight when it is “well-supported by medically acceptable clinical
and laboratory diagnostic techniques” and is “not inconsistent with the other substantial
evidence in [the] case record.” 20 C.F.R. § 404.1527(d)(2); SSR 96-2p, 1996 WL 374188, at
*1-2; see also Wilson, 378 F.3d at 544. Matters that are reserved to the Commissioner are not
“medical opinions” so they do not receive this deference. 20 C.F.R. § 404.1527(d)(2).
Additionally, a physician’s notations of a claimant’s subjective complaints are the “‘opposite
of objective medical evidence’” and the ALJ need not give the opinions based solely on those
assertions controlling weight. Masters v. Astrue, 818 F. Supp. 2d 1054, 1067 (N.D. Ill. 2011)
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(quoting Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir. 2010)). The regulations also require an
ALJ to 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).
b.

Analysis

Plaintiff argues that the ALJ’s decision was internally inconsistent because it gave
“conflicting conclusions regarding the nurse practitioner’s treatment and opinion.” (Doc. 13 at
10.) She complains that the ALJ “took portions of Larry Beek’s findings and the Mental
Impairment Questionnaire he completed and incorporated them within the RFC. Yet the ALJ’s
analysis of Larry Beek’s opinion was also given little weight.” (Id.) Plaintiff then argues that if
Mr. Beek’s opinion were “given controlling weight despite the contradictory analysis then one
factor in his analysis is work-preclusive. Namely, Mr. Beek indicated that [Plaintiff] would be
off task . . . up to one hour.” (Id. (citing Tr. 411).) Plaintiff then reasoned that because one hour
divided by eight hours equals twelve and a half percent, this limitation should have resulted in
a disability finding in light of the VE’s testimony that being off task over ten percent of the day
would be work preclusive. (Id.) Plaintiff also complains that the ALJ erred because she is not
allowed to pick and choose certain opinions of treating sources without articulating her
reasons. (Id. at 11-12.)
Plaintiff’s argument that the ALJ should have given Mr. Beek’s opinion that Plaintiff
would need to be off task “up to an hour” a day controlling weight fails because Mr. Beek, as a
nurse practitioner, is not a treating physician. 20 C.F.R. § 404.1513(d) (“Other sources include,
but are not limited to . . . nurse practitioners[.]”); SSR 06-3p, 2006 WL 2329939, at *2
(“[O]nly ‘acceptable medical sources’ can be considered treating sources . . . whose medical
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opinions may be entitled to controlling weight.”). In fact Mr. Beek is not an acceptable medical
source at all, and therefore his statements are not medical opinions; however the ALJ may use
them as evidence of the impairments’ severity. See 20 C.F.R. § 404.1513(d) (“In addition to
evidence from the acceptable medical sources . . . we may also use evidence from other sources
to show the severity of your impairment(s) and how it affects your ability to work.” (emphasis
added).) “[A]n ALJ has discretion to determine the proper weight to accord opinions from
“other sources” such as nurse practitioners.” Cruse, 502 F.3d at 540; see also Ghanim v.
Colvin, 763 F.3d 1154, 1161 (9th Cir. 2009) (finding that an ALJ may discount testimony from
nurse practitioners if germane reasons are provided). Further, even if the ALJ had given this
opinion dispositive effect, Plaintiff’s argument fails. She relies on the fact that Mr. Beek
indicated that she would be off task “up to an hour” in an eight hour work day. (Doc. 13 at 11
(citing Tr. 411).) However, because Mr. Beek was filling out a form, his only other options
were “never” or several options that were all over an hour. See (Tr. at 411). It does not follow
that Mr. Beek was indicating that Plaintiff would be need to be off task for an entire hour every
day.
Further, the ALJ properly determined the probative value of Mr. Beek’s opinions, as an
“other source” under the six-factor balancing test laid out in 20 C.F.R. § 404.1527(c). The ALJ
stated that she had “considered opinion evidence in accordance with the requirements of 20
CFR 404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.” (Tr. at 15.) “[T]here is
no per se rule that requires an ALJ to articulate each of the six regulatory factors listed in 20
C.F.R. § 404.1527(c).” Schanck v. Comm’r of Soc. Sec., No. 12-14837, 2014 WL 1304816 at
*5 (E.D. Mich. Mar. 31, 2014).

20

The ALJ made the following findings concerning Mr. Beek’s opinions in her Step Three
analysis. She gave his opinions that Plaintiff had moderate limitations in her activities of daily
living and in her social functioning significant weight, despite coming from an “other source,”
because “even though Mr. Beek had only examined the claimant twice, he was a psychiatric
nurse and had the opportunity to meet the claimant in person.” (Tr. at 13-14.) The ALJ
disagreed with Mr. Beek’s opinion that Plaintiff had “marked limitations” in concentration,
persistence, and pace and instead found only moderate limitations in this category. (Id.) She
reasoned that, while Plaintiff had occasional panic attacks and her medications made her feel
tired, “despite her limitations, the claimant is able to sustain focus and concentration long
enough to permit the timely and appropriate completion of tasks that require her attention such
as concentrating on television programs, remembering to pay her bills, and counting backwards
by 7s from 100.” (Id.)
The ALJ made the following findings concerning Mr. Beek’s opinions in her Steps Four
and Five analyses. She gave significant weight to his opinions “that the claimant could
understand, remember, and carry out 1-2 step tasks,” “could sustain an ordinary routine
without supervision,” and “would be expected to miss work about once a month.” (Tr. at 17.)
The ALJ noted that she could not give Mr. Beek’s opinions controlling weight because he was
not an acceptable medical source and also because he had only met claimant twice. (Id.) The
ALJ gave little weight to Mr. Beek’s opinion that Plaintiff “could work in coordination with
and in proximity to others without distraction” because “it was not consistent with the
claimant’s fear of strangers and history of panic attacks.” (Id.)
The ALJ provided good reasons for the weight she gave to all of Mr. Beek’s opinions.
The only opinion that she gave “little weight” to was discounted in favor of a more restrictive
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RFC. She also gave good reason for discounting his opinion that Plaintiff had “marked”
limitations in concentration, persistence, and pace. Therefore, substantial evidence supports the
ALJs finding with respect to the weight she accorded Mr. Beek’s opinions.
Plaintiff also argues that the ALJ erred because she gave Plaintiff’s mother’s statements
significant weight, and therefore her testimony regarding the severity of Plaintiff’s
impairments should have led to a disability conclusion. (Id. at 13-15.) Plaintiff points to her
mother’s testimony that she was off track quite a bit, cried a lot, had problems with memory,
had to sleep during the day because of nighttime nightmares, was easily confused, was unable
to go outside alone, and had problems following directions and understanding. (Id.)
Plaintiff’s mother is considered an “other source.” 20 C.F.R. § 404.1513(d) (“Other
sources include, but are not limited to . . . parents[.]”) The ALJ expressly considered Ms.
Bacca testimony as follows: she “was not surprised to hear of her daughter’s suicide attempts,”
her daughter had “‘hard times” in her life,” her daughter’s “mood swings and anxiety affected
the claimant’s ability to work,” and her daughter “was able to drive and do laundry.” (Tr. at 1617.) The ALJ gave Ms. Bacca’s testimony significant weight “even though [she] was not an
‘acceptable medical source,’” because she “saw the claimant frequently and was in a good
position to observe the claimant’s residual capacity firsthand.” (Tr. at 17.)
Under 20 C.F.R. § 404.1513, an ALJ “may . . . use evidence from other sources” but
there is no requirement that the ALJ do anything more than consider the other source evidence.
In addition, “testimony of lay witnesses, however, is entitled to perceptible weight only if it is
fully supported by the reports of the treating physicians.” Simons v. Barnhart, 114 F. App’x
727, 733 (6th Cir. 2004). The ALJ considered Ms. Bacca’s testimony and explained the weight
given her opinion, which is all the ALJ is required to do. Plaintiff states Ms. Bacca’s testimony
22

that Plaintiff “‘gets off track quite a bit and cries a lot about different things’ would certainly
effect [sic] her ability to work.” (Doc. 13 at 14.) In her Response to Defendant’s Motion to
Dismiss, Plaintiff asserts, “The record is replete with work-preclusive factors by the Claimant’s
mother which is internally inconsistent with a[n] unfavorable [d]ecision . . . .” (Doc. 18 at 4.)
Plaintiff outlines Ms. Bacca’s testimony regarding Plaintiff’s inability to concentrate, getting
nervous around others, having outbursts, emotional problems effecting ability to sleep, her
nightmares, her getting confused, problems concentrating, comprehending, and following
instructions, severe outbursts of anger, short attention span, getting frustrated easily, taking a
long time to understand instructions, and problems handling stress. (Id. at 4-5.) She concludes
that Plaintiff “could not perform work on a regular and sustained basis due to difficulties
concentrating, becom[ing] nervous around people, having outburst[s] around others, sleeping
during the day, and ha[ving] difficulty handling stress.” (Id. at 5.) The ALJ appropriately
factored some of these limitations into the RFC. (Tr. at 15.) As to limitations not factored into
the RFC, the ALJ is not required to give any perceptible weight to lay opinion testimony that
does not comport with the medical evidence, especially that of treating physicians. Simons, 114
F. App’x at 733. Therefore, substantial evidence supports the weight the ALJ accorded
Plaintiff’s mother’s statements.
Plaintiff also argues that Defendant presented a post-hoc argument when she argued that
“the ALJ cited adequate reasons for assigning the testimony significant weight but not
dispositive weight.” (Doc. 18 at 6 (citing S.E.C. v. Chenery Corp, 332 U.S. 194, 196 (1947)).)
Plaintiff’s throwaway Chenery claim fails to persuade. (Doc. 15 at 3.) True, the government as
a litigant cannot provide, and the court cannot develop or accept, after-the-fact rationalizations
for the agency decision “that the agency had not relied on in its [disputed] decision . . . .”
23

McClesky v. Astrue, 606 F.3d 351, 354 (7th Cir. 2010); see also Larson v. Astrue, 615 F.3d
744, 749 (7th Cir. 2010) (citing Chenery and holding, “But these are not reasons that appear in
the ALJ’s opinion, and thus they cannot be used here”); Berryhill v. Shalala, 4 F.3d 993, 1993
WL 361792, at *7 (6th Cir. 1993) (unpublished decision) (“[I]n large part, an agency’s
decision must be affirmed on the grounds noted in the decision.”). Nonetheless, the court can
consider “any evidence in the record, regardless of whether it has been cited by the ALJ” or the
Appeals Council. Blackburn v. Comm’r of Soc. Sec., No. 4:11-cv-58, 2012 WL 6764068 at *4;
see also Heston, 245 F.3d at 535 (“Both the court of appeals and the district court may look to
any evidence in the record, regardless of whether it has been cited by the Appeals Council.”).
The gravamen of the analysis is whether the Defendant or the court develops new arguments,
not whether they cite evidence to support the ALJ’s arguments.
Plaintiff does not explain how Defendant presented new arguments that the ALJ did not
consider in her decision. Rather, Plaintiff contends that Defendant’s assessment that “the ALJ
cited adequate reasons for assigning the testimony significant weight but not dispositive
weight” amounted to a post-hoc rationalization. (Doc. 18 at 6.) Defendant is not creating new
arguments for the ALJ, nor is she presenting new evidence; she is merely pointing out that the
ALJ provided good reasons for her decision.

III.

CONCLUSION
For all these reasons, after review of the record, I conclude that the decision of the ALJ,

which ultimately became the final decision of the Commissioner, is within that “zone of choice
within which decisionmakers may go either way without interference from the courts,” See
Felisky, 35 F.3d at 1035, as the decision is supported by substantial evidence.
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IV.

ORDER
In light of the entire record in this case, the Court finds that substantial evidence

supports the Commissioner’s determination that Plaintiff is not disabled. Accordingly, IT IS
ORDERED that Plaintiff’s Motion (Doc. 13) is DENIED, that Defendant’s Motion (Doc. 17)
is GRANTED, and that the findings of the Commissioner are AFFIRMED.

Date: May 28, 2015

s/ patricia t. morris

Patricia T. Morris
United States Magistrate Judge
CERTIFICATION
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 28, 2015

By s/Kristen Krawczyk
Case Manager to Magistrate Judge Morris

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