Harris v. Social Security
Filing
28
OPINION and ORDER DENYING PLAINTIFF'S 21 MOTION for Summary Judgment AND GRANTING DEFENDANT'S 26 MOTION for Summary Judgment - Signed by Magistrate Judge R. Steven Whalen. (CCie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHAUNA EDWARD HARRIS,
Plaintiff
Civil Action No. 16-13654
v.
HON. R. STEVEN WHALEN
U.S. Magistrate Judge
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
__________________________________/
OPINION AND ORDER
Plaintiff Chauna Edward Harris (“Plaintiff”) brings this action under 42 U.S.C.
§405(g), challenging a final decision of Defendant Commissioner (“Defendant”) denying his
application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income
(“SSI”) under the Social Security Act. For the reasons discussed below, Defendant’s Motion
for Summary Judgment [Docket #26] is GRANTED and Plaintiff’s Motion for Summary
Judgment [Docket #21] is DENIED.
I. PROCEDURAL HISTORY
On July 15, and August 14, 2014 respectively, Plaintiff filed applications for DIB and
SSI, alleging disability as early as September 10, 2007 (Tr. 231, 233). After the initial denial
of the claim, Plaintiff requested an administrative hearing, held on June 19, 2015 before
Administrative Law Judge (“ALJ”) Carol Guyton (Tr. 35). Plaintiff, represented by attorney
Adam Banton, testified (Tr. 46-64), as did Vocational Expert (“VE”) Don K. Harrison (Tr.
64-69). On August 26, 2015, ALJ Guyton determined that Plaintiff was capable of his past
relevant work as a kitchen worker and alternatively, a significant range of other work (Tr.
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27-29). On August 16, 2016, the Appeals Council denied review (Tr. 1-3). Plaintiff filed
for judicial review of the final decision in this Court on October 13, 2016.
II. BACKGROUND FACTS
Plaintiff, born June 12, 1985, was 30 when ALJ Guyton issued her decision (Tr. 29,
231). He completed a GED in 2000 and worked as a baker, cook, and manager (Tr. 299).
He alleges disability resulting from a seizure disorder and depression (Tr. 298).
A.
Plaintiff’s Testimony
Plaintiff offered the following testimony:
He was disabled as of August, 2012 (Tr. 46). He stood 6' 1" and weighed 185 pounds
(Tr. 47). He was divorced and had seven children by his former wife (Tr. 47). The last time
any of his children lived with him was 2013 (Tr. 48). He currently lived in an apartment
with a woman who took care of him; although she was a “good friend,” they did not have a
romantic relationship (Tr. 48). The friend was able to care for him during his seizures
because she was “in the medical field” (Tr. 49). He had not worked since 2007 or 2008 and
had never held a driver’s license (Tr. 49-50).
Internal Revenue Service (“IRS”) records stating that Plaintiff made $9,000 in 2014
were erroneously attributed to him and he was currently attempting to rectify the mistake
with IRS (Tr. 50-51). Records showing that he made $300 in 2013 reflected an unsuccessful
work attempt which ended when he had a seizure at work (Tr. 52). His former work as a
cook and kitchen worker did not require him to lift more than 20 pounds (Tr. 55). Plaintiff
was unable to work due to seizures occurring any time one to three times a week (Tr. 55).
His seizures lasted no longer than 12 minutes but he experienced head and body aches for
the next three to four days (Tr. 56). He took anti-seizure medication which had recently been
increased (Tr. 56-57). He also took Norco and Mirtazapine (Tr. 57). He did not experience
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a notable improvement in muscle pain with medication and did not experience medication
side effects (Tr. 57). Prior to his latest emergency room visit, he had been hospitalized for
two weeks earlier in the month (Tr. 58-59). He had not used alcohol since 2007 or used
marijuana in the past two years (Tr. 60). He then acknowledged September, 2014 hospital
records stating that he was then using alcohol and marijuana, noting that the use was due to
“maybe a relapse” (Tr. 60).
Plaintiff did not perform any chores at home other than easy meal preparation (Tr.
61). He spent the day watching television and going to doctors’ appointments (Tr. 61). He
was unable to sit for even an hour due to back pain (Tr. 62). He was unable to stand or walk
for more than 30 minutes or lift more than 20 pounds (Tr. 63). He denied manipulative
limitations (Tr. 63). In response to questioning by his attorney, Plaintiff reported that after
a seizure, he spent most of the day in bed (Tr. 63-64).
B.
Medical Evidence
1. Records Related to Plaintiff’s Treatment
June, 2012 emergency records state that Plaintiff experienced a seizure after failing
to take his anti-seizure medication for three days (Tr. 374). November, 2012 emergency
records state that Plaintiff experienced a seizure three days after he stopped taking his seizure
medication (Tr. 377). January, 2013 emergency records state that Plaintiff requested antiseizure medication (Tr. 381). He was given a prescription and “a list of free clinics in the
area” (Tr. 381). In March, 2013, blood tests showed a “sub-therapeutic” level of Dilantin
(Tr. 547). In May, 2013, Plaintiff experienced a seizure after failing to take his medication
for at least three days (Tr. 518). He admitted to occasional alcohol use (Tr. 519). Plaintiff
sought anti-seizure medication from emergency room personnel in July, 2013 (Tr. 384).
September, 2013 emergency room records note Plaintiff’s report of seizures after
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failing to take Dilantin for several days (Tr. 338). Plaintiff admitted to tobacco and
marijuana use but denied using alcohol (Tr. 339). In November, 2013, Plaintiff sought
emergency treatment for a seizure (Tr. 312). He reported to emergency room personnel that
while he was compliant with the anti seizure medication, he had been drinking alcohol two
days before the seizure and was smoking marijuana with his friends at the time of seizure
(Tr. 312). He was diagnosed with alcohol withdrawal, drug abuse, electrolyte abnormality,
head injury, hypoglycemia, and medical non-compliance (Tr. 313). A CT of the head was
unremarkable (Tr. 313, 323-324). Plaintiff also reported left shoulder pain (Tr. 322). He
was discharged under the care of his girlfriend (Tr. 313). He was advised to refrain from
smoking marijuana because it could lower his “seizure threshold and was told not to drink
alcohol which WILL lower [his] threshold” (Tr. 320)(capitalization in original). Emergency
notes from later the same month also note that he was not compliant with medical advice (Tr.
335). A CT of the head was unremarkable (Tr. 347). In December, 2013, Plaintiff reported
seizure activity after using alcohol during a trip out of town (Tr. 332).
In January, 2014, Ernest A. Mullen, M.D. noted Plaintiff’s report of breakthrough
seizures and that Plaintiff was “not adequately medicated” due to financial constraints (Tr.
351). He noted diagnoses of epilepsy and depression (Tr. 352). The following month,
Plaintiff reported being compliant with his medication but admitted to regular alcohol use
(Tr. 349). In May, 2014, Plaintiff reported a seizure while on a subway platform (Tr. 354).
Plaintiff admitted that he had been non-compliant with Keppra and that “every time” he
failed to take the anti-seizure medication for three days, he experienced a seizure (Tr. 361).
The following month, imaging studies of the left shoulder were unremarkable (Tr. 391, 396).
Plaintiff admitted that he had a seizure after failing to take his anti-seizure medication (Tr
393). In September, 2014, Plaintiff reported a seizure after drinking “a small amount of
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alcohol” and using marijuana and cocaine (Tr. 406, 496, 503). He denied depressive
symptoms (Tr. 496).
Treating records from later the same month state that Plaintiff had seven children by
his former wife and two other children by two different women but was not in contact with
any of them (Tr. 409). Plaintiff reported anxiety and depression but denied feelings of guilt
(Tr. 409). He retracted his previous admission that he was drinking and using cocaine at the
time of his recent seizure, attributing his confession to “residual from the seizure” (Tr. 417).
He was referred to a neurologist for the condition of epilepsy (Tr. 412).
Mental health treating records by Theadia Carey, M.D. note Plaintiff’s report of
depression and sleep disturbances due to seizure activity (Tr. 441). Plaintiff denied using
alcohol for the past six or seven years (Tr. 442). Plaintiff was diagnosed with a dysthymic
disorder secondary to epileptic seizures (Tr. 446). He reported approximately one seizure
each day (Tr. 625). In November, 2014, neurologist Lakshmi Shankar, M.D. noted that an
MRI was negative for abnormalities (Tr. 427-428). The same month, Maura Bradley, M.D.
noted Plaintiff’s report of one to three seizures a day (Tr. 560).
In January, 2015, Plaintiff reported four seizures in 30 days while taking 500mg of
Keppra as directed (Tr. 530). However, he demonstrated normal neurological and cognitive
abilities (Tr. 531, 535). Imaging studies from the same month show a dislocation of the left
shoulder (Tr. 537). Psychiatric treating records note that he was “depressed and stressed
ever since” he was denied disability benefits (Tr. 620). In February, 2015, Plaintiff sought
emergency treatment after experiencing a seizure (Tr. 449). He reported that he was
medication compliant but noted that his dose of Keppra had been recently lowered by his
neurologist (Tr. 449, 453). Dr. Shankar recommended that Plaintiff’s Keppra dosage be
restored to its previous level of 750mg (Tr. 460). A CT was unremarkable (Tr. 489, 576).
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Treating records state that Plaintiff smelled strongly of alcohol (Tr. 476). Plaintiff admitted
that he had been out with friends until 4:00 a.m. the previous day (Tr. 579). Treating records
from the next month state that Plaintiff’s Keppra dosage had been upped to 750mg (Tr. 570).
The same records state that Plaintiff would be “most likely” undergoing surgery for the left
shoulder condition (Tr. 571). The same month, Plaintiff was advised to decrease the Keppra
and start another anti-seizure medication (Tr. 591).
In June, 2015, Dr. Bradley completed an assessment of Plaintiff’s work-related
abilities, finding that as a result of depression, epilepsy, and left shoulder problems, Plaintiff
would be off task at least 25 percent of the workday and be unable to perform even “low
stress” jobs (Tr. 601-602). She found that Plaintiff could walk up to four city blocks; sit or
stand for more than two hours at a time; and stand/walk for around four hours in an eighthour workday (Tr. 602-603). She found that Plaintiff was limited to lifting 20 pounds
occasionally and 10 frequently (Tr. 603). She found that he was limited to occasional
twisting and stooping but precluded from all climbing of ladders and stairs (Tr. 604). She
precluded Plaintiff from all overhead activity with the left upper extremity (Tr. 604). She
found that Plaintiff would be expected to miss more than four days of work each month (Tr.
604). Dr. Bradley’s treating notes from the following day state that Plaintiff had recently
been incarcerated for 72 days for driving with a suspended license (Tr. 606). Plaintiff did
not display any abnormalities beyond a history of epilepsy and left shoulder pain (Tr. 609).
The following week, Plaintiff reported a seizure despite his report that he was fully
medication-compliant (Tr. 634). The same month, Plaintiff reported that he wanted to
resume psychiatric treatment, alleging that since his incarceration, he experienced
depression, bipolar disorder, and schizophrenia (Tr. 612). Plaintiff appeared well groomed
and dressed with good expressive and “receptive language skills” (Tr. 613).
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2. Non-Treating Sources
In December, 2014, R. Sil, M.D. performed a consultative neurological examination
on behalf of the SSA, noting Plaintiff’s report of seizures three to four times a week followed
by fatigue and the need to sleep (Tr. 430). Plaintiff denied smoking or drinking (Tr. 430).
He demonstrated 5/5 motor strength and no neurological deficiencies (Tr. 431-433). The
same day, Nick Boneff, Ph.D. performed a consultative psychological examination on behalf
of the SSA, noting Plaintiff’s report of anxiety and difficulty getting along with others (Tr.
435). Plaintiff reported that he had no friends and did not feel like getting out of bed most
days (Tr. 436). Dr. Boneff found that Plaintiff was not capable of managing his benefit
funds but “should be able to remember and execute a three or possibly four step repetitive
procedure with little to no independent judgment or decision making required” (Tr. 438).
In January, 2015, Milagros Flores, M.D. performed a non-examining review of
Plaintiff’s treating records on behalf of the SSA, concluding that Plaintiff could lift 50
pounds occasionally and 25 frequently; sit, stand, or walk for six hours in an eight-hour
workday; and push and pull without limitation (Tr. 126). He found that Plaintiff could
balance, stoop, kneel, crouch, crawl and climb stairs frequently but was precluded from all
climbing of ramps, ladders, or scaffolds (Tr. 126). He found that Plaintiff should avoid
concentrated exposure to temperature extremes, wetness, humidity, noise, airborne hazards,
and hazards such as machinery or heights (Tr. 127). The same month, James Tripp, Ed.D.
performed a non-examining psychological evaluation on behalf of the SSA, finding moderate
limitation in the ability to understand, remember, and carry out detailed instructions; interact
appropriately with the public; and respond appropriately to workplace changes (Tr. 130-132,
135). Dr. Tripp found that as a result of affective, personality, and substance addiction
disorders, Plaintiff experienced mild limitation in activities of daily living and social
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functioning and moderate limitation in maintaining concentration, persistence, or pace (Tr.
147).
C.
Vocational Expert Testimony
VE Harrison classified Plaintiff’s former work as a kitchen worker as exertionally
medium and unskilled (light as performed)1 (Tr. 65). The ALJ then posed a set of restrictions
to the VE, describing a hypothetical individual of Plaintiff’s age, education, and work
background:
[L]ight work, which means that they can frequently climb ramps and stairs,
and balance and crawl and kneel and stoop and crouch, except that they cannot
climb ladders, ropes or scaffolding or be exposed to hazardous machinery and
unprotected heights. Now they are limited to unskilled work, which is no
more than simple, short instructions, and simple work related decisions with
few workplace changes. There’s to be no contact with the general public, no
work with production quotas or production - - or production pass. And . . . .
a limitation for the [left shoulder. . . . [O]ccasional overhead reaching with the
left upper extremity. And so with those limitations, can this person do their
past relevant work? (Tr. 65-66).
The VE stated that the need to be off task at least 15 percent of the workday or, take
four or more absences a month would preclude all competitive work (Tr. 67). He stated that
his testimony was consistent with the Dictionary of Occupational Titles (“DOT”) except for
the testimony regarding time off task and workday absences, which was based on his own
professional experience (Tr. 67). He stated further that the hypothetical limitations would
allow for the light, unskilled work of a small products assembler (150,000 in the national
1
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
that exertionally heavy work “ lifting no more than 100 pounds at a time with frequent lifting
or carrying of objects weighing up to 50 pounds.
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economy); packer (35,000); and office cleaner (250,000) (Tr. 68).
D. The ALJ’s Decision
Citing the medical transcript, ALJ Guyton found that Plaintiff experienced the severe
impairments of “seizure disorder, left glenohumeral joint instability, and adjustment disorder
with mixed anxiety and depressed mood” but that none of the conditions met or medically
equaled an impairment found in Part 404 Appendix 1 Subpart P, Appendix No. 1 (Tr. 21-22).
She found that the condition of lumbago did not cause more than “minimal” limitation (Tr.
22). She found that Plaintiff experienced mild limitation in activities of daily living and
moderate limitation in social functioning and concentration, persistence, or pace (Tr. 22-23).
The ALJ determined that Plaintiff retained the Residual Functional Capacity (“RFC”) for
light work with the following limitations:
[F]requently balance, crawl, kneel, stoop, crouch, or climb ramps and stairs.
He could never climb ladders, ropes, or scaffolds. He could perform
occasional overhead reaching with the left upper extremity. He could never
be exposed to hazardous machinery or unprotected heights. He would be
limited to unskilled work, which would be no more than simple short
instructions and simple work related decisions with few workplace changes.
He could never have contact with the general public. He could never work
with production quotas or production pace (Tr. 23).
Citing the VE’s testimony, the ALJ found that Plaintiff could perform his past relevant work
as a kitchen worker as well as the light, unskilled work of a small products assembler,
packer, or office cleaner (Tr. 27-29, 67-68).
The ALJ discounted Plaintiff’s allegations of disability, noting that he was noncompliant with his anti-seizure medication (Tr. 24). She cited June, 2015 treating records
showing that while the seizure disorder was not controlled, Plaintiff exhibited intact motor
strength, normal reflexes, a normal gait and normal coordination and speech (Tr. 25). She
accorded only “partial weight” to Dr. Bradley’s June, 2015 opinion, noting that while the
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finding that Plaintiff could lift up to 20 pounds with limited postural activity was well
supported, Dr. Bradley’s finding that Plaintiff would be off-task 25 percent of the day and
need for frequent absences was contradicted by the “normal neurological findings” by
treating sources (Tr. 25).
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
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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).
V. ANALYSIS
A. Medication Non-Compliance
Plaintiff’s first argument concerns his long-term failure to take his anti-convulsant
medication. Plaintiff’s Brief at 15, Docket #21, Pg ID 707. Plaintiff argues that the ALJ
neglected to take into account that his non-compliance was attributable to financial
limitations. Id. at 15-18. He notes further that although he became medication compliant
in November, 2014, he continued to experience seizures. Id. at 17-18.
Under SSR 96–7p, 1996 WL 374186, *7 (July 2, 1996), an ALJ “must not draw any
inferences about an individual's symptoms and their functional effects from a failure to seek
or pursue regular medical treatment without first considering any explanations that the
individual may provide, or other information in the case record, that may explain the “failure
to seek medical treatment.”2 See also SSR 82–59, 1982 WL 31384, *4 (1982)(The ALJ must
2
While SSR 96-7p was superseded by SSR 16-3p, SSR 96-7p applies to the current
decision, issued in 2015.
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consider an individual’s claim that she is unable to afford the prescribed treatment).
Plaintiff’s argument is a red herring. While the ALJ did not address the possible role
that monetary limitations may have played in Plaintiff’s non-compliance, the records do not
overwhelmingly support that conclusion that his access to anti-seizure medication was
attributable to financial constraints. As early as January, 2013, emergency room personnel
provided him with a list of free medical clinics in his area (381). Records from January,
2014 forward indicate that he had access to regular medical care (Tr. 351). Despite the
availability of medical care from that point forward, he continued his previously established
pattern of experiencing a seizure after running out of medicine for three or four days then
seeking emergency treatment.
Moreover, the records support the conclusion that Plaintiff’s continued seizure
activity was precipitated by his failure to follow medical advice, rather than financial
constraints. Plaintiff acknowledged in February, 2014 that he used alcohol regularly (Tr.
349). February, 2014 treating records show that while Plaintiff was purportedly compliant
with anti-seizure medication, he continued to use alcohol despite being previously advised
that alcohol would precipitate seizure activity (Tr. 349). Records from the remainder of
2014 indicate that while he had access to medication, he failed to procure regular refills of
the prescribed medication, and/or, used alcohol, marijuana, or cocaine (Tr. 349, 354, 361,
393, 406, 496, 503), despite being told as early as November, 2013 that the use of alcohol
and marijuana would lower his seizure threshold (Tr. 320). While Plaintiff argues that he
continued to experience seizures after becoming medication compliant in late 2014, late
February, 2015 records show that he experienced a seizure after ingesting alcohol (Tr. 476).
Although in June, 2015, Plaintiff reported one seizure despite his insistence that he was
medically compliant, the records generously support the conclusion that the continued
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seizure activity was attributable to either the failure to take the anti-seizure medical or
continued substance abuse. The ALJ did not err in concluding that Plaintiff’s noncompliance with medical advice stood at odds with the allegations of disability. See Sias v.
Secretary of HHS, 861 F.2d 475, 480 (6th Cir.1988)(allegations of disability undermined by
failure to follow the prescribed medical regime).
B. Dr. Bradley’s Treating Assessment
Plaintiff also contends that the ALJ erred by according only partial weight to Dr.
Bradley’s June, 2015 treating opinion. Plaintiff’s Brief at 18-21. Plaintiff disputes the ALJ’s
rejection of Dr. Bradley’s finding that he would be off task at least 25 percent of the day and
absent from work more than four days a month due to seizure activity. Id.
Case law in effect at the time of Plaintiff's application requires that “if the opinion
of the claimant's treating physician is supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence
in [the] case record, it must be given controlling weight.” Hensley v. Astrue, 573 F.3d 263,
266 (6th Cir. 2009)(internal quotation marks omitted)(citing Wilson v. CSS, 378 F.3d 541,
544 (6th Cir. 2004); 20 C.F.R. § 404.1527(c)(2)). In the presence of contradicting
substantial evidence however, the ALJ may reject all or a portion of the treating source's
findings, Warner v. Commissioner of Social Sec., 375 F.3d 387, 391-392 (6th Cir. 2004),
provided that he supplies “good reasons” for doing so. Wilson, at 547; 20 C.F.R. §
404.1527(c)(2); SSR 96–2p, 1996 WL 374188, *5 (1996). In explaining the reasons for
giving less than controlling weight to the treating physician's opinion, the ALJ must consider
(1) “the length of the ... relationship” (2) “frequency of examination,” (3) “nature and extent
of the treatment,” (4) the “supportability of the opinion,” (5) the “consistency ... with the
record as a whole,” and, (6) “the specialization of the treating source.” Wilson, at 544.
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The ALJ accorded “partial weight” to Dr. Bradley’s June, 2015 findings, adopting the
treating finding that Plaintiff was limited to exertionally light work and the preclusion on
climbing of ladders, ropes, or scaffolds (Tr. 25 citing 601-604). In contrast, she rejected the
finding that Plaintiff would miss more than four days a month and be off task for 25 percent
or more of the workday, noting that Dr. Bradley’s “limitations [were] excessive in light of
the objective medical evidence, including the normal neurological findings exhibited . . .
throughout treatment (Tr. 25).
Plaintiff, in effect, argues that while the neurological findings were essentially normal,
the ALJ failed to take into account how the seizure activity and its aftermath would affect
his ability to work. Plaintiff’s Brief at 20. However, as discussed above, the ALJ
permissibly found that the ongoing seizure activity was attributable to Plaintiff’s noncompliance with medical advice (Tr. 24-25). See SSR 96–7p supra, at *8 (“individual's
statements may be less credible” where “medical reports or records show that the individual
is not following the treatment as prescribed and there are no good reasons for this failure.”).
Aside from the ALJ’s well-developed discussion of Plaintiff’s non-compliance with medical
advice, she noted that a December, 2014 neurological examination was wholly unremarkable
(Tr. 430-433). Because the ALJ’s partial rejection of Dr. Bradley’s findings is well
explained and well supported, a remand on this basis is not warranted.
C. The RFC/Hypothetical Question
Finally, Plaintiff argues that the RFC for exertionally light, unskilled work did not
take into account his significant limitation in concentrational limitations found by both Dr.
Boneff and Dr. Tripp. Plaintiff’s Brief at 21-24. He argues that hypothetical question to the
VE and by extension, the identical RFC found in the administrative opinion does not reflect
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his full degree of concentrational limitation.3 Id.
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).
In regard to Plaintiff’s alleged concentrational limitations, the ALJ posed the
following restrictions to the VE: “unskilled work, which is no more than simple, short
instructions, and simple work related decisions with few workplace changes. . . . [N]o
contact with the general public, no work with production quotas or production - - or
production pass” (Tr. 65-66).
Plaintiff argues that in justifying the choice of hypothetical limitations, the ALJ mischaracterized Dr. Boneff’s consultative findings. Plaintiff’s Brief at 21. Plaintiff notes that
the ALJ summarized Dr. Boneff’s findings as follows: “demonstrated difficulties with
concentration as evidenced by problems performing calculation tasks accurately but did
display only strengths in immediate memory and the ability to pay attention” (Tr. 26).
3
The ALJ ultimately determined at Step Four of the sequential analysis that Plaintiff
could perform his past relevant work (Tr. 27). She was not required to use VE testimony in
making the Step Four determination. Studaway v. HHS, 815 F.2d 1074, 1076 (6th Cir.
1987); Mays v. Barnhart, 78 Fed. Appx. 808, 813–814, 2003 WL 22430186, *4 (3rd Cir.
October 27, 2003) (“At step four of the sequential evaluation process, the decision to use a
vocational expert is at the discretion of the ALJ”). Although the use of a VE is optional in
making a Step Four finding, “the propriety of the hypothetical question ... is a proper concern
for the Court, since it may furnish relevant information that the ALJ may consider in
determining whether the plaintiff could do her past work.” Merkel v. CSS, 2008 WL
2951276, *4 (E.D. Mich. July 29, 2008) (Lawson, J.)(citing 20 C.F.R. § 404.1560(b)).
Likewise here, the Court will address the adequacy of the limitations posed to the VE.
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Plaintiff notes that Dr. Boneff actually found “difficulties with concentration as evidence[d]
by problems performing calculation tasks accurately. He did display only slight strengths
in immediate memory and the ability to pay attention [with] significant problems with short
term memory as well.” Plaintiff’s Brief at 21-22 (emphasis in Brief)(citing Tr. 437-438).
The Court need not parse the difference between Dr. Boneff’s finding of “slight
strengths” in immediate memory and attention and the ALJ’s “strengths in immediate
memory and the ability to pay attention” given that Dr. Boneff ultimately concluded that
Plaintiff’s concentrational limitations did not preclude a significant range of unskilled work
(Tr. 26, 437-438). While Dr. Boneff found some degree of concentrational limitation, he
stated in conclusion that Plaintiff “should be able to remember and execute a three or
possibly four step repetitive procedure with little to no independent judgment or decision
making required” (Tr. 438). Dr. Boneff’s findings cannot be interpreted to support the
finding that Plaintiff experienced disabling concentrational limitations.
Likewise, Plaintiff’s contention that the hypothetical limitations crafted by the ALJ
did not adequately account for his deficiencies in concentration, persistence, and pace does
not provide grounds for remand. Plaintiff relies on Brown v. CSS, 672 F.Supp 2d 794, 797
(E.D. Mich. 2009), which holds that remand is appropriate in the instance that the “ALJ’s
hypothetical question . . . with respect to concentration . . . does not reflect the frequency of
the impairment” such as ability to “meet quotas, stay alert, or work at a consistent pace.” Id.
(citing Edward v. Barnhard, 383 F. Supp 2d 92, 930 (E.D. Mich. 2005)). However, Brown
is distinguishable from this case. In contrast to Brown where the hypothetical restrictions
were limited to “simple, routine, repetitive, one or two step tasks,” Id. at 797, ALJ Guyton
directly addressed Plaintiff’s possible deficiencies in persistence in pace by precluding work
with “production quotas or production . . . pass” (Tr. 65-66). Unlike Brown, the present
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hypothetical question accounted for Plaintiff’s limited ability to “meet quotas” and work
consistently. The present hypothetical question further addressed Plaintiff’s concentrational
deficiencies by limiting him to (1) unskilled work (2) work with “no more than simple, short
instructions,” and, (3) “simple work related decisions with few workplace changes” (Tr. 65).
Because these limitations adequately reflect the concentrational limitations found by both
Dr. Boneff and Tripp, the RFC for a limited range of unskilled work does not provide
grounds for remand.
Because the determination that Plaintiff was capable of performing his past relevant
work as a kitchen worker and other unskilled light work was well within the “zone of choice”
accorded to the fact-finder at the administrative hearing level, it should not be disturbed by
this Court. Mullen v. Bowen, supra.
CONCLUSION
For these reasons, Defendant’s Motion for Summary Judgment [Docket #26] is
GRANTED and Plaintiff’s Motion for Summary Judgment [Docket #21] is DENIED.
IT IS SO ORDERED.
s/ R. Steven Whalen
R. STEVEN WHALEN
UNITED STATES MAGISTRATE JUDGE
Dated: February 23, 2018
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was sent to parties of
record on February 23, 2018, electronically and/or by U.S. mail.
s/Carolyn M. Ciesla
Case Manager to the
Honorable R. Steven Whalen
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