Shipman v. Colvin
OPINION and ORDER DENYING PLAINTIFF'S 23 MOTION for Summary Judgment Social Security AND GRANTING DEFENDANT'S 28 MOTION for Summary Judgment - Signed by Magistrate Judge R. Steven Whalen. (CCie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
DANIEL RICHARD SHIPMAN,
Civil Action No. 16-12217
HON. R. STEVEN WHALEN
U.S. Magistrate Judge
COMMISSIONER OF SOCIAL
OPINION AND ORDER
Plaintiff Daniel Richard Shipman brings this action pursuant to 42 U.S.C. §405(g),
challenging a final decision of Defendant Commissioner denying his application for
Disability Insurance Benefits (“DIB”) under the Social Security Act. Both parties have filed
summary judgment motions. For the reasons set forth below, Defendant’s motion for
summary judgment [Dock. #28] is GRANTED and Plaintiff’s motion for summary judgment
[Dock. #23] is DENIED.
I. PROCEDURAL HISTORY
On August 21, 2013, Plaintiff filed an application for DIB, alleging disability as of
November 19, 20091 (Tr. 206-218). After the initial denial of the claim, Plaintiff requested
Plaintiff later amended his alleged onset date to January 14, 2012 due to the res
judicata effect of a previous finding that he was not disabled on or before January 13, 2012
(Tr. 18, 109-117).
an administrative hearing, held on March 9, 2015, in Mount Pleasant, Michigan before
Administrative Law Judge (“ALJ”) Manh Nguyen (Tr. 35). Plaintiff, represented by attorney
Janice Brownson, testified (Tr. 40-69), as did Vocational Expert (“VE”) Michelle Ross (Tr.
69-74). On May 7, 2015, ALJ Nguyen found that Plaintiff was not disabled through the date
last insured of December 31, 2014 (Tr. 18-30). On April 12, 2016, the Appeals Council
denied review (Tr. 1-3). Plaintiff filed for judicial review of the final decision on June 16,
II. BACKGROUND FACTS
Plaintiff, born May 27, 1977, was just short of his 38th birthday when the ALJ issued
his decision (Tr. 30-206). He completed a GED and worked as an automotive technician (Tr.
238-239). He alleges disability due to upper and lower extremity numbness; depression;
anxiety; chronic back, neck, and leg pain; and migraine headaches (Tr. 237).
Plaintiff offered the following testimony:
He lived in West Branch, Michigan, stood 6' 4", weighed 275 pounds, and lived with
his wife and three of his children (Tr. 41). His childcare activities were limited to directing
them to do their daily chores, prepare appropriate meals, go to bed at a reasonable time, and
“oversee[ing]” their homework (Tr. 41). He was unable to engage in sports with his son due
to back pain (Tr. 42).
In response to questioning by his attorney, Plaintiff reported that he had not worked
since being injured “on the job” in 2009 (Tr. 44). His lower back condition had worsened
since the January, 2012 administrative decision (Tr. 44-45). Due to the back condition, his
legs collapsed beneath him periodically requiring him to recline for several hours (Tr. 45).
As a result of continual neck pain, he experienced sleep disturbances (Tr. 45). He also
experienced sharp left shoulder pain, required the use of wrist splints due to a diagnosis of
Carpal Tunnel Syndrome, and experienced lower extremity swelling for which he wore
support hose (“CTS”) (Tr. 45). He treated his pain with medication, physical therapy, and
injections (Tr. 46). He did not experience any improvement from the injections (Tr. 47). He
had been told by a neurologist that the back condition was best treated with conservative care
(Tr. 48). His upper back problems were triggered by “just normal movements” (Tr. 50). The
episodes of upper back pain were currently “few and far between” because he had learned
how to move to avoid pain (Tr. 50). He experienced ongoing wrist and finger pain (Tr. 51).
His problems gripping were worse in the left (non-dominant) hand (Tr. 51). He was unable
to perform manipulative manipulations with the right hand (Tr. 52).
Plaintiff’s physician prescribed the use of a cane one year before the hearing (Tr. 52).
Plaintiff experienced only limited relief from pain medication (Tr. 54). He experienced the
medication side effects of memory problems and nightmares (Tr. 55). He took daytime naps
due to nighttime sleep disturbances (Tr. 55). His most comfortable position was lying flat
on his back (Tr. 57). He was able to sit for up to 40 minutes at a time and stand and walk for
10 (Tr. 57-58). He was unable to lift more than eight pounds (Tr. 60). He went shopping
with his wife once every two weeks but was required to rest on a bench periodically while
his wife grocery shopped (Tr. 60). He was able to cook one meal a week (Tr. 65). He
experienced up to two “bad” days each week at which time he spent the day in bed (Tr. 66).
He was unable to perform any other household, yard, or laundry chores (Tr. 67). Due to pain
and mental distraction, he was unable to follow the plot of a movie or television show (Tr.
As a result of his physical limitations and inability to provide for his family, Plaintiff
also experienced depression and anxiety (Tr. 63). On one occasional he sought emergency
treatment believing that he was having a heart attack before receiving a diagnosis of anxiety
(Tr. 63-64). His symptoms were mostly resolved with the use of anti-anxiety medication (Tr.
1. Treating Sources
In June, 2010 John N. DiBella, M.D. noted Plaintiff’s report of thoracic and low back
pain since a November, 2009 workplace injury (Tr. 317 see Tr. 326). Dr. DiBella noted later
the same month that Plaintiff obtained good results with steroid injections to the thoracic
spine (Tr. 314).
Records predating the alleged onset date of January 14, 2012 are included for
background purposes only.
September, 2011 EMG studies of the bilateral lower extremities ordered by
Mohammed M. Al-Qasmi, M.D. showed mild right L4 radiculopathy with a normal left leg
(Tr. 374, 380, 383).
On January 13, 2012, Plaintiff reported continued low back pain and migraine
headaches (Tr. 433). The same month, Dr. Al-Qasmi observed good motor strength in the
lower and upper extremities but diminished reflexes (Tr. 369). He noted a normal gait and
station (Tr. 369). Dr. Al-Qasmi recommended continued physical therapy (Tr. 369-370). In
May, 2012, Dr. Al-Qasmi made similar findings but noted Plaintiff’s report that steroid
injections were mostly ineffective (Tr. 367-368). July, 2012 treating records by Clark Jones,
D.O. note a normal gait, full orientation and a normal mood (Tr. 410). Plaintiff reported leg
numbness from sitting in one position for extended periods (Tr. 410). October, 2012 imaging
studies of the cervical spine were unremarkable (Tr. 416, 516). Dr. Al-Qasmi’s November,
2012 records note Plaintiff’s report of increased left leg pain and right arm numbness with
a weakened grip (Tr. 365). Dr. Al-Qasmi observed an antalgic gait and station (Tr. 365).
Treating notes by Dr. Jones from the same month note an appropriate mood and affect (Tr.
In January, 2013, Dr. Jones noted Plaintiff’s report of dizziness and memory problems
but noted a normal affect and full orientation (Tr. 402-403). In May, 2013, Plaintiff sought
emergency treatment for dizziness and chest pain (Tr. 355). He was diagnosed with anxiety
(Tr. 355). Dr. Al-Qasmi recommended physical therapy for complaints of upper and lower
extremity radiculopathy (Tr. 363-364). The following month, EMG studies of the upper
extremities showed left-sided mild, chronic C6-C7 radiculopathy, moderately severe left
Carpal Tunnel Syndrome (“CTS”), and mild bilateral ulnar mononeuropathy of the elbows
(Tr. 380). July, 2013 records state that Plaintiff was exercising and doing stretching
exercises and had reduced symptoms of anxiety (Tr. 511). September, 2013 treating records
note an appropriate affect despite Plaintiff’s report of anxiety and depression (Tr. 399-400).
Plaintiff reported that the symptoms of anxiety were reduced (Tr. 398). December, 2013
treating notes state that Plaintiff did not experience significant relief from prescribed pain
medication, used a cane, and experienced right elbow pain (Tr. 499).
In March, 2014, Plaintiff was prescribed compression stockings for lower extremity
edema (Tr. 497). An MRI of the lumbar spine from the same month showed only a small
disc protrusion at L4-L5 and very mild degenerative changes (Tr. 513, 542). An MRI of the
thoracic spine showed only a small disc protrusion at T9-T10 (Tr. 514). An MRI of the
cervical spine showed a small herniation at C6-C7 (Tr. 541, 574). May, 2014 treating
records note the need for a cane (Tr. 493). The same month, Dr. Al-Qasmi increased
Plaintiff’s dosage of Neurontin but noted full strength, normal memory, and good
coordination (Tr. 549). September, 2014 treating records note ongoing anxiety attacks (Tr.
481-482). Plaintiff reported continued sleep disturbances due to pain (Tr. 485). He also
reported recent falls (Tr. 485). Treating records note an abnormal gait but full orientation
The same month, neurologist Jayant Jagannathan, M.D. performed a surgical
consultation (Tr. 538). He advised against surgery but recommended “pain management,”
including medication and injections (Tr. 539). In November, 2014, Dr. Al-Qasmi noted a
normal gait and full strength but that Plaintiff used a cane (Tr. 546). Treating records from
the same month state that Plaintiff was advised to avoid alcoholic beverages (Tr. 570).
February, 2015 treating records note Plaintiff’s report of back pain, depression, anxiety,
irritability, and sleep disturbances (Tr. 551). He exhibited a “wide-based and ataxic gait”
(Tr. 552). He exhibited a normal mood and affect (Tr. 552).
2. Consultative and Non-Examining Sources
In October, 2013, George Pestrue, Ph.D. performed a consultative psychological
examination on behalf of the SSA, noting Plaintiff’s report of depression, anxiety, and low
energy resulting from his physical limitations (Tr. 424). He reported an anxiety attack two
weeks earlier (Tr. 424). He reported that he was easily distracted and was prescribed Ritalin
as a child (Tr. 424). Plaintiff reported that he drank a case of beer on weekends and
continued to smoke (Tr. 425). He reported that he read for four to six hours a day (Tr. 426).
He denied hallucinations (Tr. 427).
Dr. Pestrue observed that Plaintiff was “friendly and cooperative” but moderately
depressed with a “flat” affect (Tr. 426-427). He noted good calculations and good judgment
(Tr. 428). Dr. Pestrue assigned him a GAF of 47 due to major depression, ADHD, a panic
disorder, physical problems, and psycho social stressors (Tr. 429).
The same month, Mark Garner, Ph.D. performed a non-examining evaluation of the
medical evidence, finding that as a result of Attention Deficit Disorder (“ADD”), Attention
Deficit Hyperactivity Disorder (“ADHD”), depression, and anxiety, Plaintiff experienced
mild impairment in activities of daily living and moderate impairment in social functioning
and concentration, persistence, or pace (Tr. 135).
The same month, Eric VanderHaagen, D.O. performed a non-examining assessment
of the physical limitations on behalf of the SSA, finding that Plaintiff could lift a maximum
of 10 pounds; sit for six hours in an eight-hour workday and stand/walk for two; and
push/pull with the lower extremities without limitation (Tr. 137). Dr. VanderHaagen found
that Plaintiff’s ability to push/pull in the left upper extremity was limited (Tr. 137). He found
that Plaintiff was limited to frequent overhead lifting and gross manipulation (Tr. 138). He
restricted Plaintiff to frequent balancing, stooping, kneeling, crouching, crawling, and
climbing ramps and stairs (Tr. 138). He precluded all climbing of ladders, ropes, and
scaffolds (Tr. 138).
Vocational Expert Testimony
VE Ross classified Plaintiff’s former work as an auto-mechanic as skilled and
exertionally medium (very heavy as performed)3 (Tr. 70-71, 296). The ALJ then described
20 C.F.R. § 404.1567(a-d) defines sedentary work as “lifting no more than 10 pounds
at a time and occasionally lifting or carrying articles like docket files, ledgers, and small
tools; light work as “lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds;” medium work as “lifting no more than 50
pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds;” and
a hypothetical individual of Plaintiff’s age, education, and work history:
This person can occasionally lift 10 pounds. This person can frequently lift
articles such as docket files, and ledgers, and small tools . . . . can stand and/or
walk up to two hours in an eight-hour work day . . . . can occasionally operate
foot controls and push/pull with the lower extremities. . . . can frequently
push/pull with the upper extremities . . . . [but] cannot climb ladders, ropes, or
scaffolds, kneel, or crawl. . . . can occasionally climb stairs and ramps, balance,
stoop, and crouch . . . . can occasionally reach overhead with the left arm . . .
non-dominant arm. . . . can frequently reach forward, handle, and finger with
either hand. For every 30 minutes of sitting, standing, or walking, this person
must change position every . . . five minutes, before resuming the prior position.
This person will remain on task 90 percent of the work day, despite the
changes. Whenever this person stands or walks, [he] must use a cane in the
right, dominant hand. This person cannot perform commercial driving. . . .
cannot work around unprotected heights or uncovered, unguarded, moving
machinery. . . . can carry out simple instructions. . . . cannot work at a
production rate pace, such as assembly line work . . . . cannot interact with the
general public as part of his or her job duties. . . . can occasionally interact with
supervisors and co-workers. . . . [W]ould a person with these restrictions be
able to perform the Claimant’s past relevant work? (Tr. 71-72).
The VE stated that the above limitations would preclude Plaintiff’s past work but
would allow for the sedentary/unskilled work of an inserter (125,000 positions in the national
economy); machine attendant (110,000); and parts checker (90,000) (Tr. 72-73). She stated
that her testimony was not inconsistent with the information found in the Dictionary of
Occupational Titles (“DOT”) (Tr. 73). The VE found that if the same individual were
additionally limited by being off task 20 percent of the day, missing two or more days of
work each month, or, the need for two unscheduled breaks lasting for up to one hour two
that exertionally heavy work “involves lifting no more than 100 pounds at a time with
frequent lifting or carrying of objects weighing up to 50 pounds.
times a day, all competitive employment would be eliminated (Tr. 73).
D. The ALJ’s Decision
ALJ Nguyen noted that in an earlier application for benefits, Plaintiff was found not
disabled on or before January 13, 2012 (Tr. 18). ALJ Nguyen found “new and material
evidence” created subsequent to that date supported the finding that Plaintiff experienced
additional limitation (Tr. 18)(citing Administrative Ruling (“AR”) 98-4(6) (Tr. 18); see also
Drummond v. CSS, 126 F. 3d 837 (6th Cir. 1997).
Citing the medical transcript, ALJ Nguyen found that subsequent to January 13, 2012
and the December 31, 2014 expiration of DIB benefits, Plaintiff experienced the severe
impairments of “degenerative disc disease of the lumbar spine, status post work injury, with
radiculopathy; degenerative disc disease of thoracic spine; cervical stenosis with neck pain;
effusion and cyst of the right knee; insomnia; obesity; major depression; attention deficit
hyperactivity disorder (“ADHD”); and panic disorder” but that none of the conditions met
or medically equaled an impairment found in Part 404 Appendix 1 Subpart P, Appendix No.
1 (Tr. 21). He found that the conditions of sinusitis, hyperlipidemia, gastroesophageal reflux
disease (“GERD”), and Chronic Obstructive Pulmonary Disorder (“COPD”) were non-severe
The ALJ found that Plaintiff experienced mild restriction in activities of daily living
and moderate restriction in social functioning and concentration, persistence, or pace (Tr.
22). The ALJ found that through December, 31 2014, Plaintiff retained the Residual
Functional Capacity (“RFC”) for sedentary work with the following additional limitations:
Can occasionally lift up to ten pounds; frequently lift articles such as docket
files, ledgers and small tools. Can stand or walk up to two hours in eight hour
workday; can sit for six hours in an eight hour work day. Can occasionally
operate foot controls, and push or pull with the lower extremities. Can
frequently push or pull with the upper extremities. No climbing of ladders,
ropes or scaffolds. No kneeling or crawling. Can occasionally climb stairs
and ramps, and balance, stoop or crouch. Can occasionally reach over head
with the left non-dominant arm. Can frequently reach forward, handle and
finger with either hand. For every 30 minutes of standing or walking, must
change position for five minutes before resuming prior position. Will remain
on task for 90% of the workday despite these changes. Must use cane in the
right dominant hand when standing or walking. No commercial driving. No
work around unprotected heights or unguarded, uncovered, moving machinery.
Can carry out simple instructions. Cannot work at a production rate pace, such
as assembly line work. Cannot interact with general public as regular job
duties; can occasionally interact with supervisors and coworkers (Tr. 23).
Citing the VE’s testimony, the ALJ found that while Plaintiff was unable to perform
any of his past relevant work, he could perform the jobs of inserter, machine attendant, and
parts checker (Tr. 29-30).
The ALJ discounted Plaintiff’s allegations of disability. He noted that imaging studies
of the lumbar spine showed only mild degenerative changes with a “very small disc
herniation at L4-L5 (26). The ALJ cited Dr. Al-Qasmi’s May, 2014 observation of a normal
attention span and recent and remote memory (Tr. 26). He noted that as of November, 2014,
Plaintiff exhibited a normal gait despite the use of a cane (Tr. 27). However, the ALJ noted
that Plaintiff’s allegations had not been “completely dismissed, but rather, . . . included in the
[RFC] to the extent that they [were] consistent with the evidence as a whole” (Tr. 28).
III. STANDARD OF REVIEW
The district court reviews the final decision of the Commissioner to determine
whether it is supported by substantial evidence. 42 U.S.C. §405(g); Sherrill v. Secretary of
Health and Human Services, 757 F.2d 803, 804 (6th Cir. 1985). Substantial evidence is more
than a scintilla but less than a preponderance. It is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.
389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229, S. Ct. 206, 83 L.Ed.126 (1938)). The standard of review is deferential and
“presupposes that there is a ‘zone of choice’ within which decision makers can go either way,
without interference from the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir.
1986)(en banc). In determining whether the evidence is substantial, the court must “take into
account whatever in the record fairly detracts from its weight.” Wages v. Secretary of Health
& Human Services, 755 F.2d 495, 497 (6th Cir. 1985). The court must examine the
administrative record as a whole, and may look to any evidence in the record, regardless of
whether it has been cited by the ALJ. Walker v. Secretary of Health and Human Services,
884 F.2d 241, 245 (6th Cir. 1989).
IV. FRAMEWORK FOR DISABILITY DETERMINATIONS
Disability is defined in the Social Security Act as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months.” 42 U.S.C. §423(d)(1)(A). In
evaluating whether a claimant is disabled, the Commissioner is to consider, in sequence,
whether the claimant: 1) worked during the alleged period of disability; 2) has a severe
impairment; 3) has an impairment that meets or equals the requirements of an impairment
listed in the regulations; 4) can return to past relevant work; and 5) if not, whether he or she
can perform other work in the national economy. 20 C.F.R. §416.920(a). The Plaintiff has
the burden of proof at steps one through four, but the burden shifts to the Commissioner at
step five to demonstrate that, “notwithstanding the claimant's impairment, he retains the
residual functional capacity to perform specific jobs existing in the national economy.”
Richardson v. Secretary of Health & Human Services, 735 F.2d 962, 964 (6th Cir.1984).
A. The RFC
Plaintiff argues first that the RFC crafted by the ALJ did not have benefit of an
updated physical evaluation. Plaintiff’s Brief, 15-21, Docket #23, Pg ID 674. He contends
that the records post-dating the October, 2013 non-examining physical assessment adopted
by the ALJ show that the physical conditions worsened between October, 2013 and the
May15, 2015 administrative decision. Id. He argues that the ALJ erred by failing to order
an “updated” assessment. Id.
The RFC describes an individual's residual abilities. Howard v. Commissioner of
Social Security, 276 F.3d 235, 239 (6th Cir. 2002). “RFC is to be an ‘assessment of
[Plaintiff's] remaining capacity for work’ once her limitations have been taken into account”
Id. (citing 20 C.F.R. § 416.945). In determining a person's RFC, it is necessary to consider
(1) objective medical evidence as well as (2) subjective evidence of pain or disability. 20
C.F.R. § 404.1545(a)(1)(RFC must be based on all "relevant evidence"). The RFC must
consider the alleged physical, mental, and environmental restrictions. § 404.1545(b-d).
Plaintiff is correct that generally, “updated” medical records are to be accorded more
weight than older ones. See Brooks v. CSS, 531 Fed.Appx. 636, 642 (6th Cir. August 6,
2013)(ALJ adoption of non-consulting source's earlier opinion over the more recent
examining findings constitutes reversible error). Likewise in Hamblin v. Apfel, 7 Fed.Appx.
449, 451, 2001 WL 345798, *2 (6th Cir. March 26, 2001), the Sixth Circuit affirmed an
ALJ's rejection of an “outdated” opinion on the basis that another physician had performed
a more recent appraisal with contradicting findings).
Specifically, Plaintiff faults the ALJ for adopting Dr. VanderHaagen’s October, 2013
finding that he could perform a limited range of sedentary work on the basis that the records
between then and the May 15, 2015 administrative decision reflect a greater degree of
limitation (Tr. 137). As a threshold matter, the Court notes that Plaintiff’s entitlement to
DIB benefits expired on December 31, 2014. Therefore, the period under consideration by
the ALJ ended less than 15 months after the October, 2013 assessment, not on the date of the
decision (Tr. 30).
Moreover, Plaintiff’s argument that the RFC is based on outdated records fails for
multiple reasons. First, the adoption of older records over more recent ones does not
automatically constitute error. To be sure, “[w]hen an ALJ relies on a non-examining source
who ‘did not have the opportunity to review’ later submitted medical evidence, especially
when that evidence ‘reflects ongoing treatment,’ we generally require ‘some indication that
the ALJ at least considered these new facts before giving greater weight to an opinion that
is not based on a review of a complete case record.’” Brooks, at 642 (citing Blakley v.
Comm'r of Soc. Sec., 581 F.3d 399, 409 (6th Cir. 2009))(internal citations and punctuation
omitted). The ALJ did exactly that, providing a two-page discussion of the records postdating the non-examining physical evaluation (Tr. 26-27). He cited the March, 2014 MRI
studies showing “small” or “very small” abnormalities (Tr. 26). The ALJ cited the May,
2014 records stating that Plaintiff denied weakness and exhibited normal muscle tone and
full strength (Tr. 26-27). The ALJ observed that as of September, 2014, Plaintiff reported
the need for a cane but as of November, 2014, exhibited a normal gait (Tr. 27). The ALJ
noted that Plaintiff had been advised to continue conservative treatment (Tr. 27).
Second, Plaintiff’s contention that the ALJ accepted Dr. VanderHaagen’s October,
2013 findings uncritically and failed to credit newer evidence is flatly contradicted by the
administrative opinion. The ALJ stated that while he agreed with Dr. VanderHaagen’s
sedentary RFC, “the record also supports additional limitation, including [the] use of a cane
for mobilization” (Tr. 28). The RFC composed by the ALJ includes additional manipulative
limitations, a sit/stand option, and the use of a cane for standing and walking (Tr. 23, 137138). Further, while the newer records show that Plaintiff began using a cane approximately
one year subsequent to Dr. VanderHaagen’s assessment, the newer records do not suggest
a greater degree of limitation than set forth in the RFC found in the administrative opinion.
While Plaintiff argues, in effect, that the March, 2014 MRI studies validated his allegations
of physical limitation, the ALJ correctly noted that the studies reflected at most mild
abnormalities (Tr. 26).
The majority of the 2014 records show a normal gait and full
strength despite the need for a cane (Tr. 485, 493, 549).
Further, given the ample evidence post-dating the October, 2013 assessment, the ALJ
was not required to order an additional examination. “An ALJ has discretion to determine
whether further evidence, such as additional testing or expert testimony, is necessary.” Foster
v. Halter, 279 F.3d 348, 355 (6th Cir. 2001) (citing 20 C.F.R. §§ 404.1517, 416.917) (“ ‘If
your medical sources cannot or will not give us sufficient medical evidence about your
impairment for us to determine whether you are disabled or blind, we may ask you to have
one or more physical or mental examinations or tests’”); see also Landsaw v. Sec'y of Health
& Human Servs., 803 F.2d 211, 214 (6th Cir. 1986)(ALJ authorized but not required to order
additional testing “if the existing medical sources do not contain sufficient evidence to make
a determination”)(emphasis added). Because ample treating records and imaging studies
postdate the October, 2013 assessment, Plaintiff’s argument that an additional examination
was required for a proper adjudication of the claim is without merit.
Accordingly, Plaintiff’s claim that the ALJ relied on “outdated” records in crafting
the RFC does not provide a basis for remand.
B. The Report by Plaintiff’s Friend
In his second argument, Plaintiff disputes the ALJ’s conclusion that the allegations
of limitation were not credible. Plaintiff’s Brief at 21-23. He takes issue with the rejection
of the report by his longtime friend stating Plaintiff was unable to care for his own personal
needs, prepare meals, or sit, stand, or walk for meaningful periods. Id. (citing Tr. 261-266).
SSR 06–3p directs that the ALJ must consider evidence from “other, ” non-medical
sources such as family members or friends whose observations may be helpful in developing
an assessment of a claimant's limitations. 2006 WL 2329939, *6 (2006); 20 C.F.R. §
404.1513(d)(4). In weighing such evidence, it is “appropriate to consider such factors as the
nature and extent of the relationship, whether the evidence is consistent with other evidence,
and any other factors that tend to support or refute the evidence.” SSR 06-3p at *6.
In September, 2016, Gerald Weiss, identifying himself as Plaintiff’s friend, provided
an assessment of Plaintiff’s limitations, stating that Plaintiff was unable to sit, stand, or walk
for significant periods due to pain (Tr. 261). Mr. Weiss stated that he talked to Plaintiff on
a weekly basis (Tr. 261). He reported that Plaintiff’s wife helped him dress and bathe (Tr.
262). He noted that Plaintiff was able to grocery shop with the use of a motorized cart but
lacked the concentrational ability to handle his finances (Tr. 264). He noted that Plaintiff
experienced problems sitting, standing, walking and performing postural and manipulative
activities (Tr. 266).
The ALJ stated that he “considered” Mr. Weiss’ report of limitation but accorded it
“no weight” on the sole basis that it was “not a medical opinion” (Tr. 24). The ALJ’s
rationale is unsatisfactory, given that form filled out by Mr. Weiss, entitled “Function Report
- Third Party” required him to provide an assessment of Plaintiff’s condition in his capacity
as a long-term friend, not a medical expert. Nonetheless, the ALJ’s rejection of Mr. Weiss’
assessment does not provide grounds for remand. First, while SSR 06-3p mandates
consideration of a layperson’s report, nowhere does it require the ALJ to articulate his
reasons for discounting the non-medical “other source” observations. In contrast to opinions
by acceptable and non-acceptable medical sources, “SSR 06–3p does not identify . . .
‘[layperson] evidence’ as an ‘opinion’ that requires an explanation of the weight given it.”
Finkbeiner v. CSS, 2015 WL 668058, *10 (E.D.Mich. February 17, 2015); SSR 06-3p at *46. Moreover, the ALJ was not obligated to accord weight to layperson testimony. “The fact
that the ALJ is required to consider such third-party statements does not mandate that the
ALJ adopt them . . .” Shelton v. Colvin, 2015 WL 5569024, *17 (W.D. Okla. Aug. 24, 2015);
06-3p at *6, report and recommendation adopted, 2015 WL 5579803 (W.D. Okla. Sept. 22,
Second, the ALJ’s discussion of Mr. Weiss’ layperson assessment directly follows
Plaintiff’s own less restrictive account of his limitations (Tr. 24). For example, Plaintiff’s
acknowledgment that he could drive stands directly at odds with Mr. Weiss’ statement that
Plaintiff was unable to drive (Tr. 264). Likewise, while Mr. Weiss stated that Plaintiff’s
household activities were limited to preparing two-minute microwave meals (Tr. 263-264),
Plaintiff admitted that he was also able to fold laundry and vacuum (Tr. 24). Mr. Weiss’
claim that Plaintiff went “nowhere,” stands at odds with Plaintiff’s report that he attended
church and visited his children’s school (Tr. 24, 264). Although the ALJ’s rationale for
rejecting Mr. Weiss’ report was less than satisfactory, it cannot be said that he misconstrued
the content of the report or failed to “consider” the report as required by SSR 06-3p. Further,
because the record as a whole generously supports the finding that Plaintiff was capable of
the limited range of sedentary work set forth in the RFC, a remand for the purpose of better
explaining the reasons for rejecting Mr. Weiss’ report is unlikely to change the nondisability determination. Accordingly, the Court declines to remand the case to the
administrative level on this basis.
C. The Hypothetical Question to the VE
For identical reasons to those set forth in Section A., Plaintiff’s argument that the
VE’s job findings were based on an incomplete set of hypothetical restrictions does not
provide a basis for remand. Plaintiff’s Brief at 23-24. It is well settled that vocational
testimony given in response to a question that does include all of a claimant's relevant
limitations does not constitute substantial evidence. Varley v. Commissioner of HHS, 820
F.2d 777, 779 (6th Cir. 1987); Teverbaugh v. CSS, 258 F.Supp.2d 702, 706 (E.D. Mich.
2003) (Roberts, J)(reversible error for ALJ to rely upon unsupported job findings in making
a Step Five determination).
However, Plaintiff does not point to any specific deficiency in the copious
hypothetical restrictions posed to the VE, but reiterates that the RFC in the administrative
opinion (including the same restrictions as in the hypothetical question to the VE) does not
account for his full degree of limitation (Tr. 23, 71-72). As discussed above, the ALJ
permissibly drew the limitations set forth in the RFC from the medical source evidence and
imaging studies. The ALJ’s discussion and conclusions regarding the medical evidence,
imaging studies, and Plaintiff’s testimony reflects my own review of the record. Having
adequately explained his reasons for discounting Plaintiff’s more extreme but unsupported
allegations of limitation, the ALJ was not required to include them in either the hypothetical
question or ultimate RFC. See Stanley v. Secretary of Health and Human Services, 39 F.3d
115, 118–119 (6th Cir.1994)(ALJ not obliged to credit rejected claims in question to VE).
Although Plaintiff has shown some degree of limitation stemming from his 2009
workplace injury, the ALJ’s determination that he was capable of a limited range of
unskilled sedentary work is well within the “zone of choice” accorded to the fact-finder at
the administrative hearing level and should not be disturbed by this Court. Mullen v. Bowen,
For the reasons stated above, Defendant’s motion for summary judgment [Dock. #28]
is GRANTED and Plaintiff’s motion for summary judgment [Dock. #23] is DENIED.
IT IS SO ORDERED.
s/ R. Steven Whalen
R. STEVEN WHALEN
UNITED STATES MAGISTRATE JUDGE
Dated: September 25, 2017
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was sent to parties of record
on September 25, 2017, electronically and/or by U.S. mail.
s/Carolyn M. Ciesla
Case Manager to the
Honorable R. Steven Whalen
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