Gross v. Colvin
OPINION and ORDER GRANTING Plaintiff's 17 Motion for Summary Judgment; DENYING Defendant's 20 Motion for Summary Judgment--Signed by Magistrate Judge Anthony P. Patti. (MWil)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
KRISTEN JO GROSS,
Case No. 2:16-cv-10365
Magistrate Judge Anthony P. Patti
OPINION AND ORDER GRANTING PLAINTIFF’S MOTION TO
REMAND PURSUANT TO SENTENCE FOUR (DE 17) AND DENYING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (DE 20)
Plaintiff, Kristen Jo Gross, Jr., brings this action under 42 U.S.C. §§405(g)
and 1383(c)(3) for review of a final decision of the Commissioner of Social
Security (“Commissioner”) denying her application for disability insurance
benefits. On March 19, 2013, Plaintiff protectively filed an application for
disability insurance benefits, alleging that she has been disabled since February 13,
2013. (R. at 31.) Plaintiff’s application was denied and she sought a de novo
hearing before an Administrative Law Judge (“ALJ”). ALJ Melody Paige held a
hearing on October 30, 2014 and subsequently determined that Plaintiff was not
disabled within the meaning of the Social Security Act. (R. at 31-86.) On
December 19, 2015, the Appeals Council denied Plaintiff’s request for review. (R.
at 1-4.) ALJ Paige’s decision became the Commissioner’s final decision. Plaintiff
then timely commenced the instant action.
THE INSTANT MOTIONS
In her motion for remand, Plaintiff asserts that ALJ Paige committed
reversible error in three ways: 1) by violating the treating source rule, 20 C.F.R.
§404.1527(c)(2) and S.S.R. 96-8p; 2); 2)
by erring in her consideration of
Plaintiff’s credibility; and 3) by relying upon an incomplete hypothetical to the
vocational expert (“VE”) at Step 5. (DE 17.) The Commissioner opposes the
motion and has filed a motion for summary judgment, noting that substantial
evidence supports the ALJ’s decision.
The parties have consented to my authority. (DE 13.) A hearing was held
on March 17, 2017, at which Plaintiff’s counsel (Edward A. Wicklund) and
Defendant’s counsel (AUSA John J. Engel) appeared by telephone. The Court will
consider the parties’ arguments, both on the papers and at the hearing, in turn.
Treating Physician Rule
Plaintiff’s treating physician, Mark Brennan, M.D., completed two residual
functional capacity (“RFC”) questionnaires: the first on October 13, 2013 and the
second on August 8, 2014. (R. at 325-26 and 423-25.) In both, he concluded that
Plaintiff’s impairments precluded sedentary work.
The ALJ discounted Dr.
Brennan’s conclusion, noting that its work preclusive nature was not well
supported by treatment notes or objective studies, and seemed to rely heavily on
Plaintiff’s subjective reports. (R. at 36.) The ALJ formulated an RFC that limited
Plaintiff to sedentary work “except that she can occasionally climb ramps, stairs,
balance, stoop, kneel, crouch, and crawl; but can never climb ladders, ropes, or
scaffolds” and should avoid “concentrated exposure to vibrations and hazards,”
with only occasional reaching overhead. (R. at 34.) The parties concede that Dr.
Brennan’s opinions constitute the only opinion evidence in the record.
The ALJ must consider all medical opinions that he or she receives in
evaluating a claimant’s case. 20 C.F.R. § 416.927(b). The regulations define
medical opinions as “statements from physicians . . . that reflect judgments about
the nature and severity of your impairment(s), including your symptoms, diagnosis
and prognosis, what you can still do despite impairment(s), and your physical or
mental restrictions.” 20 C.F.R. § 416.927(a)(2). “Administrative law judges are
not bound by any findings made by State agency medical or psychological
consultants, or other program physicians or psychologists.”
20 CFR §
404.1527(e)(2)(i). The ALJ must, however, “consider findings and other opinions”
of State Agency medical or psychological consultants.
The ALJ generally gives deference to the opinions of a treating source
“since these are likely to be the medical professionals most able to provide a
detailed, longitudinal picture of [a patient’s] medical impairment(s) and may bring
a unique perspective to the medical evidence that cannot be obtained from the
objective medical findings alone . . . .” 20 C.F.R. § 416.927(c)(2); Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 408 (6th Cir. 2009). To qualify as a treating
source, the physician must have an “ongoing treatment relationship” with the
claimant. 20 C.F.R. § 404.1502.
If the ALJ does not afford controlling weight to a treating physician’s
opinion, the ALJ must meet certain procedural requirements.1 Wilson v. Comm’r
of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). Specifically, if an ALJ does not
give a treating source’s opinion controlling weight:
An exception exists for treating source opinions on issues that are reserved to the
Commissioner, which “are never entitled to controlling weight or special
significance.” S.S.R. 96-5p, 61 FR 34471-0, at *34473. Examples of issues
reserved to the Commissioner include:
1. Whether an individual’s impairment(s) meets or is equivalent in
severity to the requirements of any impairment(s) in the listings;
2. What an individual’s RFC is;
3. Whether an individual’s RFC prevents him or her from doing past
4. How the vocational factors of age, education, and work experience
5. Whether an individual is “disabled” under the Act.
[A]n ALJ must apply certain factors—namely, 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 the
specialization of the treating source—in determining what weight to
give the opinion.
Id.; see also 20 C.F.R. § 404.1527(c).
However, while an ALJ must “always give good reasons in [the ALJ’s]
notice of determination or decision for the weight [the ALJ] give[s] your treating
source’s opinion,” 20 C.F.R. § 416.927(c)(2), and “must be sufficiently specific
to make clear to any subsequent reviewers the weight the adjudicator gave to the
treating source’s medical opinion and the reasons for that weight,” Friend v.
Comm’r of Soc. Sec., No. 09-3889, 375 F. App’x 543, 550 (6th Cir. 2010) (per
curiam) (internal quotation omitted), there is no per se rule that requires a written
articulation of each of the six regulatory or “Wilson factors” listed in 20 C.F.R. §§
404.1527(c)(2)-(6), 416.927(c)(2)-(6). Tilley v. Comm’r of Soc. Sec., 394 F. App’x
216, 222 (6th Cir. 2010). In other words, the regulations do not require “an
exhaustive factor-by-factor analysis.” Francis v. Comm’r of Soc. Sec., 414 F.
App’x 802, 804-805 (6th Cir. 2011) (citing § 404.1527(d)(2)).
Plaintiff puts forth two arguments with respect to the ALJ’s treatment of Dr.
Brennan’s opinion. First, she asserts that the ALJ improperly discounted his
opinion that Plaintiff could not perform sedentary work and points to treatment
records and examination findings that support Dr. Brennan’s conclusions. Second,
she argues that the ALJ committed reversible error by discounting the only opinion
evidence in the record and creating an RFC by interpreting the raw medical data in
the record. While Plaintiff’s first argument is unavailing, her second is
The ALJ Did not Err in Discounting Dr. Brennan’s Opinion
The ALJ properly discounted Dr. Brennan’s opinion. First, she noted that
Dr. Brennan’s opinion that Plaintiff could not return to work is an issue reserved to
the Commissioner and therefore not entitled to special deference. See 20 C.F.R. §
404.1527(d). Second, she concluded that Dr. Brennan’s treatment notes and
objective medical evidence in the record were inconsistent with his severe
limitations. She did not commit error in discounting the opinion for
inconsistencies. See Price v. Comm’r of Soc. Sec., 342 F. App’x 172, 176 (6th Cir.
2009) (concluding that the ALJ properly rejected a treating physician opinion that
was not supported by objective medical evidence); Buxton v. Halter, 246 F.3d 762,
773 (6th Cir. 2001) (the ALJ is “not bound by conclusory statements of doctor,
particularly where they are unsupported by detailed objective criteria and
documentation.” (internal quotation omitted)); White v. Comm’r of Soc. Sec., 572
F.3d 272, 286 (6th Cir. 2009) (an ALJ’s finding that a medical opinion conflicts
with other evidence in the record is sufficient to discount the opinion.).
Plaintiff’s RFC is not Supported by Substantial Evidence
The parties spent the entirety of the hearing on Plaintiff’s second argument
related to the ALJ’s treatment of opinion evidence and the resulting RFC. As
stated in her brief, Plaintiff asserts that the ALJ erred by relying on raw medical
data in the record to formulate her RFC and essentially “playing doctor.” Pursuant
to 20 C.F.R. § 404.1527(d), the RFC assessment is the sole purview of the ALJ.
However, there is significant case law in this district confirming the general
principle that the ALJ “must generally obtain a medical expert opinion” when
formulating the RFC unless the ‘“medical evidence shows relatively little physical
impairment’ such that the ALJ can permissibly render a commonsense judgment
about functional capacity[.]” Guido v. Comm’r of Soc. Sec., No. 13-cv-13520,
2014 WL 4771929, at *12 (E.D. Mich. Sept. 24, 2014) (quoting Deskin v. Comm’r
of Soc. Sec., 605 F. Supp. 2d 908, 912 (N.D. Ohio 2008)); see also Wyatt v.
Comm’r of Soc. Sec., No. 12-11406, 2013 WL 4483074, at *16 (E.D. Mich. Aug.
19, 2013) (“ALJ RFC determinations must be supported by medical opinions.”);
Allen v. Comm’r of Soc. Sec., No. 12-15097, 2013 WL 5676254, at *15 (E.D.
Mich. Sept. 13, 2013), report and recommendation adopted, No. 12-15097, 2013
WL 5676251 (E.D. Mich. Oct. 18, 2013) (finding that the RFC was not supported
by substantial evidence where the ALJ rejected the only opinion evidence in the
record, leaving the court “with the circumstance of the ALJ interpreting raw
medical data to arrive at a residual functional capacity determination, without the
benefit of an expert medical opinion.”); Tomford v. Comm’r of Soc. Sec., No. 1311140, 2014 WL 764685, at *1 (E.D. Mich. Feb. 25, 2014) (same); Wheeler v.
Comm’r of Soc. Sec., No. 14-12540, 2015 WL 5461527, at *9 (E.D. Mich. Aug.
14, 2015), report and recommendation adopted, No. 14-12540, 2015 WL 5460709
(E.D. Mich. Sept. 17, 2015) (stressing “the importance of medical opinions to
support a claimant’s RFC”); Ali v. Comm’r of Soc. Sec., No. 15-14483, 2017 WL
726665, at *11 (E.D. Mich. Jan. 20, 2017, report and recommendation adopted,
No. 15-14483, 2017 WL 712899 (E.D. Mich. Feb. 23, 2017) (where the only
opinion evidence has been discounted, “Courts in this circuit have regularly noted
that, while it is for the ALJ to weigh the medical evidence, ALJs are not qualified
to interpret raw medical data, and may not ‘play doctor.’”); Greenly v. Colvin, No.
CIV 14-12345, 2015 WL 4635641, at *6 (E.D. Mich. July 27, 2015), report and
recommendation adopted, 2015 WL 5026180 (E.D. Mich. Aug. 21, 2015)
(remanding where no consulting physician had assessed the claimant’s RFC and
the claimant had well documented impairments); Zaft v. Comm’r of Soc. Sec., No.
12-12415, 2013 WL 5340772, at *12 (E.D. Mich. Sept. 23, 2013) (emphasizing
that “while an ALJ is free to resolve issues of credibility as to lay testimony, or to
choose between properly submitted medical opinions, the ALJ cannot substitute his
or her own lay ‘medical’ opinion for that of a treating or examining doctor.”
(internal quotations omitted)); Morgan v. Colvin, No. CV 15-12544, 2016 WL
5430215 (E.D. Mich. Sept. 29, 2016), report and recommendation adopted, 2016
WL 5430215 (E.D. Mich. Sept. 29, 2016); but see Woelk v. Comm’r of Soc. Sec.,
No. CIV 13-12411, 2014 WL 2931404, at *7-8 (E.D. Mich. May 15, 2014), report
and recommendation adopted, 2014 WL 2931411 (E.D. Mich. June 30, 2014)
(finding that it was not per se grounds for error when an ALJ did not cite to any
medical opinion when assessing the claimant’s RFC). Although the Sixth Circuit
has not directly addressed this issue, the conclusion of this district has support in
other circuits. See Manso-Pizarro v. Sec’y of Health & Hum. Servs., 76 F. 3d 15,
17 (1st Cir. 1996) (“[A]n ALJ, as a lay person, is not qualified to interpret raw data
in a medical record” unless “the medical evidence shows relatively little physical
impairment[.]”); Ferguson v. Schweiker, 765 F. 2d 31, 37 (3d Cir. 1985)
(concluding that it was “incumbent upon the ALJ to secure additional evidence
from another physician” where the ALJ discounted the opinion evidence in the
record); Rohan v. Chater, 98 F.3d 966, 971 (7th Cir. 1996) (remanding where the
ALJ discounted opinion evidence and substituted his own assessment of the
claimant’s diagnosis in articulating the RFC).
Defendant points out that these unpublished cases from our own circuit are
not binding on this Court and maintains that they were decided in error. The
Commissioner asks the Court instead to rely on the principles outlined in the
regulations as set forth in Rudd v. Comm’r of Soc. Sec., 531 F. App’x 719, 728 (6th
Cir. 2013), which states that requiring 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.’” Id. (quoting SSR
96-5p, 1996 WL 374183 (July 2, 1996)); see also 20 C.F.R. § 404.1527(d)(2).
However, where the Court finds that the treating physician’s opinion was properly
rejected or discounted, as here, it is not a question of requiring the ALJ to base the
RFC on the rejected opinion, but rather of whether the ALJ has another basis for
assigning one, beyond the ALJ’s own interpretation of raw medical data.
The Court, therefore, is left with a multitude of consistent, reported and
unreported cases holding that it is in error for the ALJ to formulate an RFC without
the benefit of any opinion evidence and an unreported, non-binding Sixth Circuit
case which is somewhat at odds with this conclusion. The reasoning in Rudd is
persuasive—the social security statute does not contemplate a bright line rule
requiring the ALJ to base his or her RFC finding on a physician’s opinion. For
example, as discussed by Defendant at the hearing, 20 C.F.R. § 404.1527(d)
provides that the final responsibility for deciding issues such as the claimant’s
residual functional capacity is reserved to the Commissioner. However, the district
court cases cited above also do not require the ALJ to entirely base his or her RFC
finding on the opinion of a physician—they require the ALJ’s RFC assessment be
supported by substantial evidence and not merely on the ALJ’s own medical
interpretation of the record.
Further, in order to make a decision on this issue, this Court “may not
uphold an ALJ’s decision, even if there is enough evidence in the record to support
it, if the decision fails to provide an accurate and logical bridge between the
evidence and the result.” Pollacia v. Comm’r of Soc. Sec., No. 09-cv-14438, 2011
WL 281044, at *6 (E.D. Mich. Jan. 6, 2011); see also Wilson v. Commissioner of
Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (requiring an appellate record that
would “permit meaningful review” of the ALJ’s application of the rules). In the
instant case, it is unclear on what the ALJ based her ultimate RFC conclusion, and
she draws no accurate and logical bridge to instruct the Court of her reasoning.
While she points to MRI results showing mild to moderate issues and minimal
lower extremity swelling, this Court is hard pressed to meaningfully review those
medical judgments. For example, what effect does an EMG study finding “mild
right-sided C7 radiculopathy and mild right-sided L5 and S1 radiculopathy” have
on Plaintiff’s ability to lift or carry “articles like docket files, ledgers, and small
tools,” or to perform occasional overhead reaching? (R. at 34-35); 20 C.F.R. §
404.1567(a). A medical doctor could presumably tell us.
It is notable that the ALJ stated during the hearing that she “was a nurse for
40 years,” indicating that she does have significant medical training and an ability
to assess the objective medical data in a way that this Court does not. (R. at 71.)
This was said in the context of her having Plaintiff stand up at the hearing so she
could “look at her legs” in order to “see if they’re swollen.” (R. at 70-71.) This
highlights the problem at hand. See, e.g., Simpson v. Comm’r of Soc. Sec., 344 F.
App’x 181, 194 (6th Cir. 2009) (finding that the ALJ impermissibly substituted the
treating physician’s medical opinion with her own where he assessed the potential
pain pelvic adhesions would cause). Nurses are not considered acceptable medical
sources under the Social Security rules. 20 C.F.R. § 404.1502; see also Meuzelaar
v. Comm’r of Soc. Sec., 658 F. App’x 582, 584 (6th Cir. 2016) (noting that, in the
context of a social security appeal, the opinion of a nurse “is entitled to less weight
than a physician’s opinion.”). For the purposes of Social Security Disability Law,
ALJ Paige is as much a lay person as I am, or very nearly so. Nguyen v. Chater,
172 F. 3d 31, 35 (“As a lay person . . . the ALJ was simply not qualified to
interpret raw medical data in functional terms” where “no medical opinion
supported the [RFC] determination.”). While it is perfectly legitimate for a
judicial officer to examine physical evidence—for example viewing scars—here
the ALJ pointed to her own experience as a nurse and implied an expertise beyond
that of an adjudicator.
Nor is this a case where the medical evidence shows relatively little physical
impairment, such that the ALJ can make a commonsense judgment about
Plaintiff’s functional capacity. See, e.g., Higgs v. Bowen, 880 F.2d 860, 863 (6th
Cir. 1988) (an example of an “exceptional ‘totally groundless’” claim that could be
dismissed on the medical evidence alone). There is significant evidence in the
record indicating that Plaintiff was admitted to the hospital for five days due to leg
pain and thigh rash, reporting severe pain (R. at 432-34), underwent treatment for
back and shoulder pain (R. at 330-31, 334-35, 338, 341, 344), had a tender cervical
spine with limited flexion and extension (R. at 351-52), and suffered from
weakness in the right upper extremity (R. at 348). Accordingly, although there are
likely instances in which an ALJ can formulate an RFC without the aid of opinion
evidence, this is not one of those cases. The RFC determination in this action is
not supported by substantial evidence and this matter must be remanded on that
basis. A remand is necessary to obtain a proper medical source opinion and for the
redetermination of Plaintiff’s RFC. If necessary, the ALJ may utilize any of the
tools provided in the regulations for ordering additional opinion evidence. See 20
C.F.R. §§404.1512(b)(2) and 404.1520b(c).
“The ALJ’s assessment of credibility is entitled to great weight and
deference, since he [or she] had the opportunity to observe the witness’s
demeanor.” Infantado v. Astrue, 263 Fed. App’x 469, 475 (6th Cir. 2008). “It is of
course for the ALJ, and not the reviewing court, to evaluate the credibility of
witnesses, including that of the claimant.” Rogers v. Comm’r of Soc. Sec., 486 F.3d
234, 247. It is for this reason that the ALJ’s credibility findings have at times been
characterized as “unchallengeable.” Payne v. Comm’r Soc. Sec., 402 Fed. App’x
109, 113-114 (6th Cir. 2010). Nevertheless, “an ALJ’s assessment of a claimant’s
credibility must be supported by substantial evidence.” Walters v. Comm’r Soc.
Sec., 127 F.3d 525, 531 (6th Cir. 1997).
Here, the ALJ properly discounted Plaintiff’s credibility by pointing to
contradictions between her testimony and the record evidence. For example, the
ALJ found Plaintiff’s testimony that she could not work because of swelling in her
legs to be contradicted by evidence in the record in which she indicated that the
swelling was minimal and controlled by medication. (R. at 35 and 217.) The ALJ
also notes that Plaintiff’s complaints of regular migraines was not supported by the
evidence in the record. (R. at 35.) Finally, the ALJ concluded that Plaintiff’s
contention that she was unable to sit, stand, or walk was inconsistent with the fact
that she went on a camping trip, during which she swam, drove two hours to get
home, and “subsequently went shopping all day[.]” (R. at 37, 401, 434, and 441.)
Discounting credibility on the basis of such inconsistencies was not in error. See
Myatt v. Comm’r of Soc. Sec., 251 F. App’x 332, 336 (6th Cir. 2007) (concluding
that substantial evidence supported the ALJ’s credibility determination where it
was based on “inconsistencies between [the plaintiff’s] testimony, medical history,
and information he and his wife submitted to the SSA.”)
Plaintiff has waived her argument with respect to the ALJ’s reliance on the
hypothetical to the VE at Step 5. The Sixth Circuit explains that “[i]t is not
sufficient for a party to mention a possible argument in a most skeletal way,
leaving the court to . . . put flesh on its bones.” McPhereson v. Kelsey, 125 F.3d
989, 995-96 (6th Cir. 1997); see also United States v. Layne, 192 F.3d 556, 566
(6th Cir. 1999) (“issues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.”). Here, Plaintiff
merely indicates that the ALJ’s hypothetical “failed to provide any of the
supported limitations by Dr. Brennan,” and therefore was not supported by
substantial evidence. Further, by framing her argument in this way, Plaintiff
attempts to shift the burden of proof from herself to the ALJ, since the burden
remains with the claimant through Step 4. Jones v. Comm’r Soc. Sec., 336 F.3d
469, 474 (6th Cir. 2003) (“Through step four, the claimant bears the burden of
proving the existence and severity of limitations caused by her impairments and
the fact that she is precluded from performing her past relevant work . . . .”).
Plaintiff’s counsel did not address this issue at the hearing. Given the
paucity of argument in the brief and failure to even mention it during the hearing, I
conclude that Plaintiff has waived her Step 5 argument, which, to the extent it is
discernible, appears to be just a repackaging of her attack on the RFC.
Remand Under Sentence Four
The Social Security Act authorizes “two types of remand: (1) a post
judgment remand in conjunction with a decision affirming, modifying, or reversing
a decision of the [Commissioner] (a sentence-four remand); and (2) a pre-judgment
remand for consideration of new and material evidence that for good cause was not
previously presented to the [Commissioner] (a sentence-six remand).” Faucher v.
Sec’y of Health and Human Servs., 17 F.3d 171, 174 (6th Cir.1994) (citing 42
U.S.C. § 405(g)). Under a sentence-four remand, the Court has the authority to
“enter, upon the pleadings and transcript of the record, a judgment affirming,
modifying, or reversing the decision of the Commissioner . . ., with or without
remanding the cause for a rehearing.”
42 U.S.C. § 405(g).
Where there is
insufficient support for the ALJ’s findings, “the appropriate remedy is reversal and
a sentence-four remand for further consideration.” Morgan v. Astrue, 10–207, 2011
WL 2292305, at *8 (E.D. Ky. June 8, 2011) (citing Faucher, 17 F.3d at 174); see
also White v. Comm’r of Soc. Sec., 312 F. App’x 779, 790 (6th Cir. 2009) (“If a
court determines that substantial evidence does not support the [Commissioner’s]
decision, the court can reverse the decision and immediately award benefits only if
all factual issues have been resolved and the record adequately establishes a
plaintiff’s entitlement to benefits.” (internal quotations omitted)). Here, there is
insufficient support for the ALJ’s findings, and the factual issues have not been
resolved. This matter shall therefore be remanded for rehearing under Sentence
Four consistent with this opinion.
Due to the errors outlined above, and in order for this Court to have an
appellate record which would “permit meaningful review,” Wilson, 378 F.3d at
544, Plaintiff is entitled to an order remanding this case to the Social Security
Administration pursuant to Sentence Four of 42 U.S.C. §405(g). Accordingly,
Plaintiff’s motion for remand is GRANTED and Defendant’s motion for summary
judgment is DENIED.
IT IS SO ORDERED.
Dated: March 28, 2017
s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
I hereby certify that a copy of the foregoing document was sent to parties of record
on March 28, 2017, electronically and/or by U.S. Mail.
Case Manager for the
Honorable Anthony P. Patti
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