Chase v. Social Security, Commissioner of

Filing 16

OPINION and ORDER Granting Defendant's 13 Motion for Summary Judgment and Denying Plaintiff's 10 Motion for Summary Judgment. Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WALDENA CHASE,
Plaintiff,
v.

Case No. 13-12062
Hon. Judith E. Levy
Mag. Judge Michael J. Hluchaniuk

CAROLYN W. COLVIN
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
_______________________________/
OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [13] AND DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT [10]
Plaintiff Waldena D. Chase (“plaintiff”) brings this action
pursuant to 42 U.S.C. § 405(g) challenging the Commissioner of Social
Security’s (“Commissioner”) final denial of her application for Disability
Insurance Benefits (“DIB”) under the Social Security Act.

Cross

motions for summary judgment were filed. (Dkts. 10& 13). For the
reasons set forth below, plaintiff’s motion for summary judgment is
denied, defendant’s motion for summary judgment is granted, and the

Commissioner’s final decision adopting the Administrative Law Judge’s
(“ALJ”) findings is affirmed.
I.

Background
Plaintiff, born August 27, 1981, was 39 years old at the time she

filed for DIB. (Dkt. 8-2, Tr. 44). She completed high school and some
technical college classes, and she previously worked as a clerk in
medical offices. (Dkt. 8-2, Tr. 46-49). Her application for DIB alleges
disability, with an onset date of December 12, 2009, as a result of lupus,
osteoarthritis, cervical disc herniation, and lumbar disc herniation.
(Dkt. 8-2, Tr. 102). Plaintiff testified that she: (1) suffers from chronic
fevers and daily exhaustion; (2) is only able to read for short periods of
time due to severe neck pain; (3) has difficulty driving due to neck
limitations; (4) is unable to pay bills or watch movies due to difficulty
concentrating; (5) has difficulty sleeping; (6) has high blood pressure
and swollen fingers; and (7) headaches and dizziness. (Id.)
Despite her alleged physical impairments, plaintiff reported being
able to: (1) take care of her household by cleaning, cooking, doing
laundry, and helping her children with their homework; (2) prepare her
children for and driving them to and from school; (3) shop for groceries

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and other necessities; (4) use her computer for at least an hour at a
time; (5) watch television; (6) talk on the telephone; and (7) attend most
of her son’s basketball games during the winter. (Dkt. 8-6, Tr. 181-84)
During the period in question, plaintiff also applied for and received
unemployment benefits, claiming that she was ready and willing to
work. (Dkt. 8-5, Tr. 16, 149-52). On January 19, 2011, plaintiff filed an
application for DIB, alleging disability with an onset date of December
12, 2009. (Dkt. 8-2, Tr. 14, 142-48).
Plaintiff’s initial DIB claim was denied by the Disability Examiner
on August 9, 2011. (Dkt. 8-2, Tr. 14, 111-15). The Examiner recognized
that plaintiff was suffering from systemic lupus erythematosus,
essential hypertension, osteoarthritis of the lumbar and cervical spine,
and from migraines, but plaintiff’s claims were found to be only
partially credible. The Examiner noted that there was no evidence of
end organ damage, no evidence that plaintiff used an assistive device to
walk, and no history of ER visits for the migraines.

The Disability

Determination Explanation (DDE) concluded that plaintiff’s condition
results in some limitations in her ability to perform work related
activities. However, these limitations do not prevent her from

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performing past work as a medical clerk, and she is able to work for up
to eight hours per day.
Plaintiff thereafter filed a request for an administrative hearing,
which was held on May 16, 2012, before Administrative Law Judge
Patricia S. McKay. (Dkt. 8-4, Tr. 118-19; Dkt. 8-2, Tr. 14, 38-101). Both
plaintiff, who was represented by counsel, and a vocational expert
(“VE”) appeared and testified at the hearing. (Id.) On June 5, 2012,
Judge McKay denied benefits and issued an unfavorable decision that
found plaintiff not disabled. (Dkt. 8-2, Tr. 11-21). Like the initial DDE,
Judge McKay found that plaintiff had conditions that limited her ability
to work, but ultimately found that she was capable of performing past
relevant work for up to eight hours per day, and consequently was not
disabled.

On April 16, 2013, the Appeals Council denied plaintiff’s

request for review, rendering the ALJ’s earlier decision the final
decision of the Acting Commissioner. (Dkt. 8-2, Tr. 1-6). Plaintiff filed
for judicial review of the Acting Commissioner’s decision on May 9,
2013.
II.

Analysis
A. Standard of Review

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An applicant who is not satisfied with the Commissioner’s final
decision may obtain review in federal district court. 42 U.S.C. § 405(g).
The district court “must affirm the Commissioner’s conclusions absent a
determination that the Commissioner has failed to apply the correct
legal standard or has made findings of fact unsupported by substantial
evidence in the record.” Longworth v. Comm’r of Soc. Sec., 402 F.3d
591, 595 (6th Cir. 2005) (internal quotation marks omitted). The court
may affirm, modify, or reverse the Commissioner’s decision, and may
also choose to remand the case for rehearing where appropriate. 42
U.S.C. § 405(g).
The Commissioner’s findings of fact are given substantial
deference on review, and are conclusive if supported by substantial
evidence. Barker v. Shalala, 40 F.3d 789, 795 (6th Cir. 1994); 42 U.S.C.
§ 405(g). 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.” Rogers v. Comm’r of Soc.
Sec., 486 F.3d 234, 241 (6th Cir. 2007). If there is substantial evidence
to support the Commissioner’s decision, the district court must affirm it
even if substantial evidence also supports the contrary conclusion. Bass

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v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Wright v. Massanari,
321 F.3d 611, 614 (6th Cir. 2003); see also Cutlip v. Sec’y of Health and
Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (explaining that if the
decision is supported by substantial evidence, “it must be affirmed even
if the reviewing court would decide the matter differently… and even if
substantial evidence also supports the opposite conclusion”).
When deciding whether there is substantial evidence to support
the Commissioner’s factual findings, the district court is limited to an
examination of the record and should consider the record as a whole.
Bass, 499 F.3d at 512-13; Wyatt v. Sec’y of Health and Human Servs.,
974 F.2d 680, 683 (6th Cir. 1992). However, neither the Commissioner
nor the reviewing court must discuss every piece of evidence in the
administrative record. Kornecky v. Comm’r of Soc. Sec., 167 F. App’x
496, 508 (6th Cir. 2006).

The district court also does not “resolve

conflicts in evidence, or decide questions of credibility,” but defers to the
Commissioner on such matters. Bass, 499 F.3d at 509.
B. Legal Framework for Disability Determinations
Pursuant to the Social Security Act, only those who have a
disability may claim Disability Insurance Benefits. 42 U.S.C. §

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423(a)(1)(E). Disability, as defined by the Social Security Act, is 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 lasted or can be expected to last for
a continuous period of at least twelve months.
423(d)(1)(A),

1382c(a)(3)(A);

20

C.F.R.

§

42 U.S.C. §§

416.905(a).

The

Commissioner's regulations provide a five-step sequential analysis to
determine disability:
Step One: If the claimant is currently engaged in substantial
gainful activity, benefits are denied without further analysis.
Step Two: If the claimant does not have a severe impairment
or combination of impairments that “significantly limits . . .
physical or mental ability to do basic work activities,”
benefits are denied without further analysis.
Step Three: If the claimant is not performing substantial
gainful activity, has a severe impairment that is expected to
last for at least twelve months, and the severe impairment
meets or equals one of the impairments listed in the
regulations, the claimant is conclusively presumed to be
disabled regardless of age, education, or work experience.
Step Four: If the claimant is able to perform his or her past
relevant work, benefits are denied without further analysis.
Step Five: Even if the claimant is unable to perform his or
her past relevant work, if other work exists in the national
economy that plaintiff can perform, in view of his or her age,
education, and work experience, benefits are denied.
20 C.F.R. §§ 404.1520, 416.920.

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The claimant has the burden of proof for steps one through four;
at the fifth step, the burden shifts to the Commissioner. Preslar v. Sec'y
of Health and Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994). If the
Commissioner makes a dispositive finding at any point in the five-step
process, the review terminates. 20 C.F.R. §§ 404.1520(a)(4) and
416.920(a)(4).
C. The Commissioner's Finding That Chase Was Not Disabled
is Supported by Substantial Evidence.
In this case, the ALJ concluded at step four that Chase was not
“disabled,” based on the finding that Chase retained a residual
functional capacity (“RFC”) that would allow her to perform her past
relevant work as an office manager, receptionist, or medical billing
clerk. Plaintiff disagreed and argued that: (1) the ALJ failed to give
proper weight to her treating medical sources; (2) the ALJ failed to
properly assess her credibility, limitations, and complaints of pain; (3)
the testimony given by the vocational expert demonstrates that she is
not able to perform work in a competitive work setting; and (4) the
Commissioner’s decision is not supported by substantial evidence. (Dkt.
8-2; Dkt. 10).
1. Plaintiff’s Medical Sources and Subjective Complaints
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Plaintiff argues that the ALJ did not properly assign Dr. Morton's
and Dr. Femminineo’s opinions controlling weight, and that the ALJ did
not consider all of the factors outlined in 20 C.F.R. § 404.1527(d). These
objections are without merit.
The Social Security Administration (“SSA”) has issued regulations
providing that so long as a treating physician's “opinion on the issue(s)
of the nature and severity of [a claimant's] impairment(s) is wellsupported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence
in [a claimant's] case record[,]” it will receive “controlling weight.” 20
C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).

Section 404.1527(c)(2) makes

clear that the SSA “will always give good reasons in [its] notice of
determination or decision for the weight [it] gives [each claimant's]
treating source’s opinion.”
Even when treating physicians are not given controlling weight,
the ALJ evaluates their opinions by considering the following six
factors: “(1) length of the treating relationship and frequency of
examination; (2) nature and extent of the treating relationship; (3)
supportability; (4) consistency; (5) specialization; and (6) other factors

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that tend to support or contradict the medical opinion.” Butler v.
Barnhart, 353 F.3d 992, 1003 n.7 (D.C. Cir. 2004) (citing 20 C.F.R. §§
404.1527(d)(2)-(6), 416.927(d)(2)-(6)).
a. Dr. Morton’s Opinion
Although the ALJ acknowledged that Dr. Morton was plaintiff’s
treating physician, she gave little weight to Dr. Morton’s medical
opinion. (Dkt. 8-2, Tr. 17-21). This was appropriate because the ALJ
found that Dr. Morton’s opinion was contradicted by substantial
evidence documenting signs of improvement as well as the claimant’s
own reports of her daily activities, and furthermore, that Dr. Morton
was not an expert in the area of disability determinations.
Dr. Morton opined, on Feb. 24, 2012, that plaintiff was unable to
be gainfully employed due to her symptoms. Dr. Morton has been
regularly treating plaintiff since 2008, and he specializes in the
diagnosis and medical management of people with arthritis-related
conditions including degenerative arthritis. (Dkt. 8-7, Tr. 275). Dr.
Morton concluded:
[T]he severity of [plaintiff’s] continual symptoms that she
complains about on a chronic basis makes me think that she
is unable to be gainfully employed at this time, and I would

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not anticipate any significant improvement in the near or
distant future.
(Id.)
Dr. Morton’s opinion, however, was contradicted by treatment
notes documenting signs of improvement. After plaintiff was instructed
to participate in a physical therapy program to address her
osteoarthritis in October 2009, for example, plaintiff was discharged in
December 2009 for having partially met her medical goals. (Dkt. 8-7,
Tr. 218-19).

Treatment notes also indicate that she increased her

cervical range of motion by ten degrees such that she could flex her
neck to do household chores. (Dkt. 8-2, Tr. 19). Her pain also decreased
to 3 on a scale of 1 to 10. (Id.).
Further, Dr. Morton indicated that his opinion was based on the
plaintiff’s subjective complaints, rather than on his previous reports of
her progress and daily activities. (Dkt. 8-7, Tr. 275).

A patient’s

subjective complaints are not sufficient to establish a physical or mental
impairment. See 20 C.F.R. § 404.1528; Durio v. Comm’r of Soc. Sec.,
1996 WL 169362 at *5 (6th Cir. 1996) (treating physician’s report not
entitled to deference where it “appears to be a characterization of the

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plaintiff’s complaints, rather than the results of any independent
medical evaluation.”)
b. Dr. Femminineo’s Opinion
The ALJ also appropriately assigned Dr. Femminineo’s opinion
little weight because his opinion was, similarly, inconsistent with
treatment records and reported activity, as well as the fact that Dr.
Femminineo was not an on-going treating source. (Dkt. 8-2, Tr. 20).
Dr. Femminineo opined that plaintiff’s pain and other symptoms
were severe enough to constantly interfere with the attention and
concentration needed to perform even simple work tasks. (Dkt. 8-2, Tr.
19). He estimated that plaintiff was able to sit for thirty minutes at a
time for a total of four hours. (Id.).
Dr. Femminineo’s opinion, however, was based on a one-time
evaluation, and as such, did not warrant more weight due to the nature
of the examining relationship and the length and frequency of the
treating relationship between him and plaintiff. 20 C.F.R. §§
404.1527(d)(2)-(6) and 416.927(d)(2)-(6); Norris v. Comm'r of Soc. Sec.,
461 F. App'x 433, 439 (6th Cir. 2012) (ALJ appropriately denied giving

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treating physician’s opinion because the physician was a one-time
treating source.)
Accordingly, the Court agrees with the Commissioner’s decisions
to grant little weight to either of these doctor’s opinions.
2. Supporting Evidence of Residual Functioning Capacity
a. Performance of Daily Activities
Plaintiff’s

range

of

daily

activities

further

supports

the

Commissioner’s evaluation of the medical opinions. Plaintiff testified
that she took care of her household by cleaning, cooking, doing laundry,
and helping her children with their homework. (Dkt. 8-7, Tr.181). She
helped her children got ready for school, and she attended most of her
son’s basketball games during the winter. (Dkt. 8-7, Tr. 184). These
activities undermine Dr. Morton’s opinion of completely debilitating
limitations. See Bogle v. Sullivan, 998 F.2d 342, 348 (6th Cir. 1993)
(providing that an ALJ may consider household and social activities in
evaluating complaints of disabling pain or symptoms.)
b. Vocational Expert’s Testimony
The ALJ also appropriately relied upon the RFC assessment of the
VE. Based on plaintiff’s subjective complaints alone, the VE conceded

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that all of plaintiff’s past work would be eliminated and she would be
precluded from performing any relevant employment. The VE testified,
however, that once objective evidence was included in her analysis,
plaintiff would only be precluded from performing the duties of her most
recent job and would be able to perform other relevant work. (Dkt. 8-2,
Tr. 20). She clarified that the available jobs would not require more
than occasional climbing of stairs, kneeling, stooping, and other actions
that were within the functional capacity of plaintiff to perform in a
workplace setting.

The VE concluded that plaintiff’s limitations

allowed her to be employed in any one of approximately ten thousand
clerical jobs in the state, or any one of about ten thousand low-skilled
service jobs in the state. (Dkt. 8-2, Tr. 89). The ALJ found the VE’s
testimony to be persuasive and well-supported.
c. Collection of Unemployment Benefits
Plaintiff also collected unemployment benefits from the 2nd
quarter of 2010 to the 3rd quarter of 2011, overlapping with the period
that she claims to be disabled.

The Sixth Circuit has found that

“applications for unemployment and disability benefits are inherently
inconsistent” because collecting unemployment benefits presumes a

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readiness and willingness to work. Workman v. Comm'r of Soc. Sec.,
105 F. App'x 794, 801 (6th Cir.2004), (citing Kinsella v. Schweiker, 708
F.2d 1058, 1059 (6th Cir.1983).
III.

Conclusion
The Court finds that, because the medical evidence plaintiff relies

upon is not dispositive, and because plaintiff’s extensive list of reported
daily activities presumed a residual functioning capacity for past
relevant work, that the Acting Commissioner’s denial of benefits is
supported by substantial evidence.
Accordingly,
Plaintiff’s Motion for Summary Judgment is DENIED,
Defendant’s Motion for Summary Judgment is GRANTED, the
Acting Commissioner’s findings are AFFIRMED, and this case is
DISMISSED WITH PREJUDICE.

Dated: December 9, 2014
Ann Arbor, Michigan

s/Judith E. Levy___________
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
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The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on December 9, 2014.
s/Felicia M. Moses__________
FELICIA M. MOSES
Case Manager

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