De Long v. Commissioner of Social Security

Filing 23

OPINION; signed by Magistrate Judge Joseph G. Scoville (Magistrate Judge Joseph G. Scoville, mmh)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

)
BERNIECE J. DeLONG,
)
)
Plaintiff,
)
)
v.
)
)
COMMISSIONER OF
)
SOCIAL SECURITY,
)
)
Defendant.
)
____________________________________)

Case No. 1:10-cv-1056
Honorable Joseph G. Scoville

OPINION

This is a social security action brought under 42 U.S.C. §§ 405(g), 1383(c)(3) seeking
review of a final decision of the Commissioner of Social Security denying plaintiff’s claims for
disability insurance benefits (DIB) and supplemental security income (SSI) benefits. On July 14,
2003, plaintiff filed her applications for benefits alleging a February 23, 1997 onset of disability.1
Her disability insured status expired on June 30, 2004. Thus, it was plaintiff’s burden on her claim
for DIB benefits to submit evidence demonstrating that she was disabled on or before June 30, 2004.
See Moon v. Sullivan, 923 F.2d 1175, 1182 (6th Cir. 1990).

1

SSI benefits are not awarded retroactively for months prior to the application for benefits.
20 C.F.R. § 416.335; see Kelley v. Commissioner, 566 F.3d 347, 349 n.5 (3d Cir. 2009); see also
Newsom v. Social Security Admin., 100 F. App’x 502, 504 (6th Cir. 2004). The earliest month in
which SSI benefits are payable is the month after the application for SSI benefits is filed. Thus,
August 2003 is plaintiff’s earliest possible entitlement to SSI benefits.

Plaintiff’s claims for DIB and SSI benefits were denied on initial review. (A.R. 4144, 162-65). On May 5, 2005, plaintiff received her first hearing2 before an administrative law judge
(ALJ). (A.R. 1577-1627). On July 1, 2005, the ALJ issued a decision finding that plaintiff was not
disabled. (A.R. 409-20, 801-12). On October 22, 2005, the Appeals Council vacated the ALJ’s
decision and remanded the matter for further administrative proceedings. (A.R. 433-35, 817-19).
On February 21, 2006, plaintiff received her second administrative hearing. (A.R. 1543-1576). On
March 29, 2007, the ALJ issued a decision finding that plaintiff was not disabled. (A.R. 823-29,
870-76). On November 27, 2007, the Appeals Council vacated the ALJ’s decision and remanded
the matter for further administrative proceedings. (A.R. 831-33, 883-85). On August 26, 2008,
plaintiff received her third administrative hearing. (A.R. 1494-1542). On December 3, 2008, the
ALJ issued a decision finding that plaintiff was not disabled. (A.R. 23-34). On August 30, 2010,
the Appeals Council denied review (A.R. 11-13), and the ALJ’s decision became the
Commissioner’s final decision.
Plaintiff filed a timely complaint seeking judicial review of the Commissioner’s
decision. Pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure, the
parties voluntarily consented to have a United States magistrate judge conduct all further proceedings
in this case, including entry of final judgment. (docket # 12). Plaintiff asks the court to overturn the
Commissioner’s decision on the following grounds:
1.

2

The Commissioner “erred as a matter of law in relying on a consulting medical
source in determining residual functional capacity and in failing to assess nonexertional limitations on a function-by-function basis instead of relying on consistent
opinions of the treating physicians of record[;]”

Plaintiff was represented by counsel at all of her administrative hearings.
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2.

The Commissioner “erred as a matter of law in improperly assessing lay testimony”
and in assessing other medical source opinions; and

3.

The Commissioner erred as a matter of law in assessing plaintiff’s credibility and
mischaracterized the evidence of record.

(Plf. Brief at 1, docket # 16). Upon review, the Commissioner’s decision will be vacated and the
matter remanded to the Commissioner under sentence four of 42 U.S.C. § 405(g) for further
administrative proceedings.

Standard of Review
When reviewing the grant or denial of social security benefits, this court is to
determine whether the Commissioner’s findings are supported by substantial evidence and whether
the Commissioner correctly applied the law. See Elam ex rel. Golay v. Commissioner, 348 F.3d 124,
125 (6th Cir. 2003); Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Substantial evidence is
defined as “‘such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Heston v. Commissioner, 245 F.3d 528, 534 (6th Cir. 2001) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)); see Rogers v. Commissioner, 486 F.3d 234, 241 (6th Cir. 2007).
The scope of the court’s review is limited. Buxton, 246 F.3d at 772. The court does not review the
evidence de novo, resolve conflicts in evidence, or make credibility determinations. See Ulman v.
Commissioner, 693 F.3d 709, 713 (6th Cir. 2012); Walters v. Commissioner, 127 F.3d 525, 528 (6th
Cir. 1997). “The findings of the [Commissioner] as to any fact if supported by substantial evidence
shall be conclusive . . . .” 42 U.S.C. § 405(g); see McClanahan v. Commissioner, 474 F.3d 830, 833
(6th Cir. 2006). “The findings of the Commissioner are not subject to reversal merely because there
exists in the record substantial evidence to support a different conclusion. . . . This is so because

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there is a ‘zone of choice’ within which the Commissioner can act without fear of court
interference.”

Buxton, 246 F.3d at 772-73.

“If supported by substantial evidence, the

[Commissioner’s] determination must stand regardless of whether the reviewing court would resolve
the issues of fact in dispute differently.” Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir. 1993); see
Gayheart v. Commissioner, No. 12-3553, __ F.3d __, 2013 WL 896255, at * 7 (6th Cir. Mar. 12,
2013)(“A reviewing court will affirm the Commissioner’s decision if it is based on substantial
evidence, even if substantial evidence would have supported the opposite conclusion.”). “[T]he
Commissioner’s decision cannot be overturned if substantial evidence, or even a preponderance of
the evidence supports the claimant’s position, so long as substantial evidence also supports the
conclusion reached by the ALJ.” Jones v. Commissioner, 336 F.3d 469, 477 (6th Cir. 2003); see
Kyle v. Commissioner, 609 F.3d 847, 854 (6th Cir. 2010).

Discussion
The ALJ found that plaintiff met the disability insured status requirements of the
Social Security Act on February 23, 1997, her alleged onset of disability, and continued to meet the
requirements through June 30, 2004, but not thereafter. (A.R. 25). He found that the work plaintiff
had performed after her alleged onset of disability as a bartender/waitress and daycare provider did
not rise to the level of substantial gainful activity. (A.R. 25). The ALJ found that plaintiff had the
following severe impairments: “status-post lumbar fusion with back pain, an affective disorder, and
polysubstance abuse.” (A.R. 25). Plaintiff did not have an impairment or combination of
impairments which met or equaled the requirements of the listing of impairments. (A.R. 26-28).

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The ALJ found that plaintiff retained the residual functional capacity (RFC) for a limited range of
light work:
After careful consideration of the entire record, the undersigned finds that the claimant has
the residual functional capacity to perform a limited range of light work as defined in 20 CFR
404.1567(b), and 416.967(b). She is able to lift and/or carry 20 pounds occasionally and 10
pounds frequently; sit six hours of an eight-hour workday; and stand and/or walk four hours
of an eight-hour workday. She is able to do simple, unskilled light work where she does not
climb ladders, ropes, or scaffolds and where she does no more than occasional stooping or
crouching.
(A.R. 28). The ALJ found that plaintiff’s subjective complaints were not fully credible. (A.R. 2832). He found that plaintiff did not have past relevant work. (A.R. 32). She was 41-years-old as
of her alleged onset of disability, 48-years-old when her disability insured status expired, and 52years-old as of the date of the ALJ’s decision. Thus, she was classified as a younger individual at
all times relevant to her claim for DIB benefits. She remained classified as a younger individual
through November 6, 2005. On and after November 7, 2005, she was classified as an individual
closely approaching advanced age. (A.R. 32). Plaintiff has at least a high-school education and is
able to communicate in English. (A.R. 32). She lacks transferable work skills. (A.R. 32). The ALJ
then turned to the testimony of a vocational expert (VE). In response to a hypothetical question
regarding a person of plaintiff’s age, and with her RFC, education, and work experience, the VE
testified that there were approximately 14,500 jobs in the State of Michigan that the hypothetical
person would be capable of performing. (A.R. 1538-39). The ALJ found that this constituted a
significant number of jobs. Using Rules 202.13 and 202.30 of the Medical-Vocational Guidelines
as a framework, the ALJ held that plaintiff was not disabled.3 (A.R. 33).
3

Plaintiff has a substantial history of alcohol and drug abuse. (See e.g., A.R. 454-60, 463,
486, 488, 545, 553, 569-74, 578, 629, 638-40, 661, 664, 711, 725, 913, 919, 935, 953-54, 965, 1113,
1129, 1154, 1166, 1181, 1054). Since 1996, the Social Security Act, as amended, has precluded
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1.
Plaintiff argues that the ALJ’s decision should be overturned on the basis of evidence
that she never presented to the ALJ. (Plf. Brief at 6, 7, 31, 32). This is patently improper. It is
clearly established law within the Sixth Circuit that the ALJ’s decision is the final decision subject
to review by this court in cases where the Appeals Council denies review. This court must base its
review of the ALJ’s decision upon the administrative record presented to the ALJ. The Sixth Circuit
has repeatedly held that where, as here, the Appeals Council denies review and the ALJ’s decision
becomes the Commissioner’s decision, the court’s review is limited to the evidence presented to the
ALJ. See Jones v. Commissioner, 336 F.3d at 478; Foster v. Halter, 279 F.3d 348, 357 (6th Cir.
2001); Cline v. Commissioner, 96 F.3d 146, 148 (6th Cir. 1996); Cotton v. Sullivan, 2 F.3d 692, 696
(6th Cir. 1993); Casey v. Secretary of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993);
see also Osburn v. Apfel, No. 98-1784, 1999 WL 503528, at * 4 (6th Cir. July 9, 1999) (“Since we
may only review the evidence that was available to the ALJ to determine whether substantial
evidence supported [his] decision, we cannot consider evidence newly submitted on appeal after a
hearing before the ALJ.”). The court is not authorized to consider plaintiff’s proposed additions to

awards of SSI and DIB benefits based upon alcoholism and drug addiction. See 42 U.S.C. §§
423(d)(2)(C), 1382c(a)(3)(J); 20 C.F.R. §§ 404.1535, 416.935; see also Bartley v. Barnhart, 117 F.
App’x 993, 998 (6th Cir. 2004); Hopkins v. Commissioner, 96 F. App’x 393, 395 (6th Cir. 2004).
The claimant bears the burden of demonstrating that her substance abuse is not a contributing factor
to her disability. See Parra v. Astrue, 481 F.3d 742, 748 (9th Cir. 2007);Brown v. Apfel, 192 F.3d
492, 498 (5th Cir. 1999); see also Zarlengo v. Barnhart, 96 F. App’x 987, 989-90 (6th Cir. 2004).
The ALJ observed that plaintiff’s “substance abuse [was] likely to have been a material factor
regarding her affective problems.” (A.R. 31). However, because he found that plaintiff was not
disabled, he was not required to decide the issue of whether substance abuse was material to a
finding of disability. Gayheart v. Commissioner, 2013 WL 896255, at * 14.
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the record in determining whether the Commissioner’s decision is supported by substantial evidence
and whether the Commissioner correctly applied the law. See Cline, 96 F.3d at 148.
“A district court’s authority to remand a case for further administrative proceedings
is found in 42 U.S.C. § 405(g).” Hollon v. Commissioner, 447 F.3d 477, 482-83 (6th Cir. 2006).
The statute permits only two types of remand: a sentence four (post-judgment) remand made in
connection with a judgment affirming, modifying, or reversing the Commissioner’s decision; and
a sentence six (pre-judgment) remand where the court makes no substantive ruling as to the
correctness of the Commissioner’s decision. Hollon, 447 F.3d at 486 (citing Melkonyan v. Sullivan,
501 U.S. 89, 99-100 (1991)). The court cannot consider evidence that was not submitted to the ALJ
in the sentence four context. It only can consider such evidence in determining whether a sentence
six remand is appropriate. See Bass v. McMahon, 499 F.3d 506, 513 (6th Cir. 2007); Foster v.
Halter, 279 F.3d at 357.
Plaintiff has the burden under sentence six of 42 U.S.C. § 405(g) of demonstrating
that the evidence she now presents in support of a remand is “new” and “material,” and that there
is “good cause” for the failure to present this evidence in the prior proceeding. See Hollon, 447 F.3d
at 483; see Ferguson v. Commissioner, 628 F.3d 269, 276 (6th Cir. 2010). Courts “are not free to
dispense with these statutory requirements.” Hollon, 447 F.3d at 486. Plaintiff has not addressed,
much less carried her burden.4 See Ferguson, 628 F.3d at 276; Hollon, 447 F.3d at 483-84.

4

Although plaintiff’s attorney wasted dozens of pages on items such as a seven-page
“summary” of the hearing testimony (Plf. Brief at 23-29), plaintiff’s brief and reply brief do not
include any request for remand to the Commissioner under sentence six of 42 U.S.C. § 405(g).
Plaintiff filed a 59-page initial brief (docket # 16), which is three times the length allowed under the
court’s January 27, 2011 order. (docket # 15). On March 31, 2011, the court granted plaintiff leave
to file a 30-page initial brief. (docket # 18). Plaintiff’s attorney never filed a corrected brief fitting
within the expanded page limitation. Attorney Benjamin Symko is expressly warned that his
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A significant portion of the evidence filed after the ALJ entered his decision is not
new. However, some of the proffered evidence is new because it was generated after the ALJ’s
decision. (A.R. 1413-25, 1432-37, 1444-54, 1458-62, 1468-74, 1476-80). See Ferguson, 628 F.3d
at 276; Hollon, 447 F.3d at 483-84.
“Good cause” is not established solely because the new evidence was not generated
until after the ALJ’s decision. See Courter v. Commissioner, 479 F. App’x 713, 725 (6th Cir. 2012).
The Sixth Circuit has taken a “harder line.” Oliver v. Secretary of Health & Human Servs., 804 F.2d
964, 966 (6th Cir. 1986). The moving party must explain why the evidence was not obtained earlier
and submitted to the ALJ before the ALJ’s decision. See Ferguson, 628 F.3d at 276. Plaintiff has
not addressed, much less carried, her burden of demonstrating good cause.
Finally, in order to establish materiality, plaintiff must show that the introduction of
the evidence would have reasonably persuaded the Commissioner to reach a different conclusion.
See Ferguson, 628 F.3d at 276; Foster v. Halter, 279 F.3d at 357. Plaintiff has not addressed or
carried her burden.
The ALJ entered his decision on December 3, 2008. None of the documents
generated after December 3, 2008, would have reasonably persuaded the ALJ to reach a different
decision on plaintiff’s claims for SSI and DIB benefits, especially the latter because plaintiff’s
disability insured status expired more than four years before this material was generated.
•

On December 3, 2008, immediately after receiving the ALJ’s decision,
plaintiff reported to Physician’s Assistant Robert Poehl that she was upset

disregard for applicable page limitations will not be tolerated. In future cases, the court will either
strike the offending brief in its entirety or disregard every page in excess of the applicable page
limitation.
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that her claims for DIB and SSI benefits had been denied. Mr. Poehl stated,
“I do feel that she should qualify for disability given her difficulties with
radicular back pain as well as some issues with memory loss and bipolar
disorder.”

(A.R. 1455).

Commissioner.

The issue of disability is reserved to the

Mr. Poehl’s opinion that plaintiff “should qualify for

disability” would not have been entitled to any weight. See 20 C.F.R. §§
404.1527(d)(1), (3), 416.927(d)(1), (3).
•

On December 12, 2008, carotid diagnostic imaging on December 12, 2008,
indicated “mild bilateral atherosclerosis disease.” (A.R. 1424). X-rays taken
of plaintiff’s pelvis on December 23, 2008, returned normal results. (A.R.
1422). X-rays of her lumbar spine showed the “postsurgical fusion at the L5S1 level” with “no evidence of acute fracture involving the lumbar spine.”
(A.R. 1423).

•

On January 8, 2009, Mr. Poehl noted plaintiff’s return to crack cocaine use.
Plaintiff reported that she had a headache and was quite distressed “by her
problem of once again using illegal substance.” (A.R. 1454). Mr. Poehl
discussed the problem with plaintiff and reiterated that she must stop using
illegal drugs. (A.R. 1454).

•

On January 10, 2009, plaintiff appeared at Gerber Memorial Health Services
complaining of right flank pain radiating into her back. Uday Shankar, M.D.,
noted that plaintiff’s “35-pack year history of smoking and [that she]
continue[d] to smoke at a rate of 1 pack per day.” (A.R. 1433). Plaintiff

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stated that she occasionally drank alcohol and that her last use of cocaine had
been “2 to 3 months” earlier. (A.R. 1433). Her extremities displayed no
clubbing, cyanosis or edema. Her neurological examination revealed no focal
deficits. Psychiatrically, plaintiff displayed normal mentation and affect with
no homicidal or suicidal ideations. (A.R. 1434). The CT scan of plaintiff’s
abdomen and pelvis showed “[n]o acute abnormal pathology.” (A.R. 1419).
•

On January 21, 2009, Mr. Poehl noted: “She does have a history of substance
abuse and does state that she has had problems recently with [illegible]. I feel
very reluctant to give her any narcotics at this point.” (A.R. 1453). On
February 14, 2009, Physician’s Assistant Peter Fries observed that plaintiff
had no weakness in her extremities. He offered a diagnosis of chronic low
back pain. (A.R. 1447).

•

In September 2009, a social worker, Donald Verhoeven, completed a
“Medical Provider’s Assessment of Ability to Do Mental Work-Related
Activities.” (A.R. 1476-80). The transmittal letter from plaintiff’s attorney
dated September 30, 2009, represented to the Appeals Council that the
document was “prepared by Nan Alt, M.D.,” but the underlying document
clearly states that it was “PREPARED BY Donald L. Verhoeven.” (A.R.
1478). Mr. Verhoeven stated that he first met with plaintiff on January 26,
2009. (A.R. 1477). He offered his opinion that plaintiff had “extreme”
limitations

in

her

ability to

function

independently,

maintain

attention/concentration, understand, remember and carry out complex job

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instructions, demonstrate reliability, restriction of activities of daily living,
and difficulties in maintaining concentration, persistence or pace. (A.R.
1476-77). He stated that plaintiff had “marked” limitations in her ability to
follow work rules, use judgment, deal with work stresses, and understand,
remember, and carry out detailed but not complex job instructions. He stated
that plaintiff had “four or more” episodes of decompensation, each of
extended duration. (Id.). Mr. Verhoeven printed Dr. Alt’s name at the end
of this undated document. (A.R. 1478). The initials appearing on the
document’s signature line may or may not be Dr. Alt’s. (Id.). It is
unnecessary to resolve that issue, because the ALJ’s decision did not address
plaintiff’s condition at any time after December 3, 2008. Even assuming Dr.
Alt added her initials to the social worker’s questionnaire responses in
September 2009, it would not have reasonably persuaded the Commissioner
to reach a different conclusion on whether plaintiff was disabled during the
period at issue: February 23, 1997, through December 3, 2008.
Plaintiff has not demonstrated that remand pursuant to sentence six of 42 U.S.C. §
405(g) is warranted. Plaintiff’s request for a sentence-six remand is denied. Plaintiff’s arguments
must be evaluated on the record presented to the ALJ.

2.
Plaintiff argues that the ALJ “erred as a matter of law in relying on a consulting
medical source in determining residual functional capacity and in failing to assess non-exertional
limitations on a function-by-function basis instead of relying on the consistent opinions of the
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treating physicians of record.” (Plf. Brief at 29). The issue of whether the claimant is disabled
within the meaning of the Social Security Act is reserved to the Commissioner. 20 C.F.R. §§
404.1527(d)(1), 416.927(d)(1); see Warner v. Commissioner, 375 F.3d 387, 390 (6th Cir. 2004). A
treating physician’s opinion that a patient is disabled is not entitled to any special significance. See
20 C.F.R. §§ 404.1527(d)(1), (3), 416.927(d)(1), (3); Bass v. McMahon, 499 F.3d 506, 511 (6th Cir.
2007); Sims v. Commissioner, 406 F. App’x 977, 980 n.1 (6th Cir. 2011) (“[T]he determination of
disability [is] the prerogative of the Commissioner, not the treating physician.”). Likewise, “no
special significance” is attached to treating physician opinions regarding the credibility of the
plaintiff’s subjective complaints, RFC, or whether the plaintiff’s impairments meet or equal the
requirements of a listed impairment because they are administrative issues reserved to the
Commissioner. 20 C.F.R. §§ 404.1527(d)(2), (3), 416.927(d)(2), (3); see Allen v. Commissioner,
561 F.3d 646, 652 (6th Cir. 2009).
Generally, the medical opinions of treating physicians are given substantial, if not
controlling deference. See Johnson v. Commissioner, 652 F.3d 646, 651 (6th Cir. 2011). “[T]he
opinion of a treating physician does not receive controlling weight merely by virtue of the fact that
it is from a treating physician. Rather, it is accorded controlling weight where it is ‘well supported
by medically acceptable clinical and laboratory diagnostic techniques’ and is not ‘inconsistent . . .
with the other substantial evidence in the case record.’” Massey v. Commissioner, 409 F. App’x 917,
921 (6th Cir. 2011) (quoting Blakley v. Commissioner, 581 F.3d 399, 406 (6th Cir. 2009)). A
treating physician’s opinion is not entitled to controlling weight where it is not “well-supported by
medically acceptable clinical and laboratory diagnostic techniques” and is “inconsistent with the
other substantial evidence in [the] case record.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). The

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ALJ “is not bound by conclusory statements of doctors, particularly where they are unsupported by
detailed objective criteria and documentation.” Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001).
An opinion that is based on the claimant’s reporting of her symptoms is not entitled to controlling
weight. See Young v. Secretary of Health & Human Servs., 925 F.2d 146, 151 (6th Cir. 1990); see
also Francis v. Commissioner, 414 F. App’x 802, 804 (6th Cir. 2011) (A physician’s statement that
merely regurgitates a claimant’s self-described symptoms “is not a medical opinion at all.”).
Even when a treating source’s medical opinion is not given controlling weight
because it is not well-supported by medically acceptable clinical and laboratory diagnostic
techniques or is inconsistent with other substantial evidence in the record, the opinion should not
necessarily be completely rejected; the weight to be given to the opinion is determined by a set of
factors, including treatment relationship, supportability, consistency, specialization, and other
factors. See Titles II and XVI: Giving Controlling Weight to Treating Source Medical Opinions,
SSR 96-2p (reprinted at 1996 WL 374188 (SSA July 2, 1996)); 20 C.F.R. §§ 404.1527(c),
416.927(c); Martin v. Commissioner, 170 F. App’x 369, 372 (6th Cir. 2006).
The Sixth Circuit has held that claimants are “entitled to receive good reasons for the
weight accorded their treating sources independent of their substantive right to receive disability
benefits.” Smith v. Commissioner, 482 F.3d 873, 875-76 (6th Cir. 2007); see Cole v. Astrue, 661
F.3d 931, 937-38 (6th Cir. 2011); Wilson v. Commissioner, 378 F.3d 541, 544 (6th Cir. 2004).
“[T]he procedural requirement exists, in part, for claimants to understand why the administrative
bureaucracy deems them not disabled when physicians are telling them that they are.” Smith, 482
F.3d at 876; see Gayheart v. Commissioner, 2013 WL 896255, at * 9.

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Plaintiff argues that the ALJ gave too little weight to the opinions of her treating
physicians Robert Gunnell, M.D., Mark Moulton, M.D., Anthony Wilson, M.D., and Psychiatrist
Nan Alt, M.D., and gave too much weight to the opinions of consultative examiners Donald Sheill,
M.D., and Psychologist Dennis Mulder. (Plf. Brief at 29-47; Reply Brief at 1-4). It is the ALJ’s job,
not the court’s, to weigh the various competing medical opinions. See Ulman v. Commissioner, 693
F.3d at 713; Bass v. Mahon, 499 F.3d at 509. The fatal flaw in the ALJ’s opinion is not in the weight
he found was appropriate for the various medical opinions. Most of the opinions emphasized by
plaintiff are not medical opinions at all, but rather opinions on administrative issues such as
disability, which are reserved to the Commissioner. The deficiency in the ALJ’s opinion is his
failure to explain his findings in sufficient detail to satisfy the “good reasons” component of 20
C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). “To be sure, a properly balanced analysis might allow the
Commissioner to ultimately defer more to the opinions of consultative doctors than those of treating
physicians.” Gayheart v. Commissioner, 2013 WL 896255, at * 13. However, the ALJ’s opinion
lacks the type of focused analysis of the treating physicians’ opinions necessary to survive scrutiny
under the “good reasons” regulations as currently applied by the Sixth Circuit. Id.
For example, plaintiff received treatment at Orthopaedic Associates of Muskegon
from Drs. Moulton and Wilson. Although plaintiff’s assertion that the ALJ “never mentioned”
Wilson and Moulton in his opinion is not entirely accurate, it is not far from the mark. The ALJ
never mentioned Dr. Moulton by name. He did note the lumbar fusion surgery that Dr. Moulton
performed on July 23, 2003. (A.R. 25, 29). The ALJ did not address the opinions that treating
surgeon Moulton expressed in September 2003, September 2004, and April 2005 regarding
plaintiff’s functional limitations. (A.R. 295-96, 363). The ALJ’s omission is particularly glaring,

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in light of the expiration of plaintiff’s disability insured status on June 30, 2004. Further, Dr. Sheill
conducted his consultative examination almost four years after plaintiff’s disability insured status
expired. Nothing in Dr. Sheill’s opinion suggests that he purported to assess plaintiff’s condition
for any period before June 3, 2008. (A.R. 1165-76).
The ALJ made a passing reference to Dr. Wilson: “Dr. Wilson’s records disclose that
the claimant received about a 60 percent relief from lumbar facet injections.” (A.R. 29). The ALJ
did not engage Wilson’s statements that plaintiff was “totally disabled.” (A.R. 293-94, 728, 751).
The ALJ repeated the same pattern in his evaluation of the opinions regarding
plaintiff’s mental impairments. Although he recognized that Dr. Alt was a treating psychiatrist (A.R.
26, 27, 29), he failed to provide an adequate explanation why the opinions of consultative examiner
Mulder should receive greater weight. Dr. Alt began treating plaintiff in 2004, before plaintiff’s
disability insured status expired. (A.R. 394-95). Dr. Mulder conducted his consultative evaluation
on June 4, 2008, and did not offer any opinion regarding plaintiff’s condition before that date. (A.R.
1177-84). Although Mulder’s opinions are not discussed anywhere in the ALJ’s opinion, the hearing
transcript leaves no doubt that they were the foundation of the ALJ’s finding that plaintiff retained
the RFC for simple, unskilled work. (A.R. 28, 1538-39). The ALJ’s decision must be reversed,
because he failed to provide “good reasons” for the weight he gave to the opinions of plaintiff’s
treating physicians.

3.
Plaintiff argues that the ALJ erred as a matter of law in assessing Ms. DeLong’s
credibility and analyzing the evidence. (Plf. Brief at 57-59). Neither argument withstands scrutiny.

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A.

Cherry Picking
Plaintiff accuses the ALJ of “cherry picking” the record. This argument is frequently

made and seldom successful, because “the same process can be described more neutrally as weighing
the evidence.” White v. Commissioner, 572 F.3d 272, 284 (6th Cir. 2009). The narrow scope of
judicial review of the Commissioner’s final administrative decision does not include re-weighing
evidence. See Ulman v. Commissioner, 693 F.3d at 713; Bass v. Mahon, 499 F.3d at 509. The
ALJ’s opinion can be faulted for its lack of analytical rigor in addressing the opinions of plaintiff’s
treating physicians, but not for mischaracterization of the underlying medical evidence.

B.

Credibility
This case turns on the ALJ’s credibility determination regarding plaintiff’s subjective

complaints. Credibility determinations concerning a claimant’s subjective complaints are peculiarly
within the province of the ALJ. See Gooch v. Secretary of Health & Human Servs., 833 F.2d 589,
592 (6th Cir. 1987). It is the ALJ’s function to determine credibility issues. See Siterlet v. Secretary
of Health & Human Servs., 823 F.2d 918, 920 (6th Cir. 1987). The court does not make its own
credibility determinations. See Walters v. Commissioner, 127 F.3d at 528. The court cannot
substitute its own credibility determination for the ALJ’s. The court’s “review of a decision of the
Commissioner of Social Security, made through an administrative law judge, is extremely
circumscribed . . . .” Kuhn v. Commissioner, 124 F. App’x 943, 945 (6th Cir. 2005). The
Commissioner’s determination regarding the credibility of a claimant’s subjective complaints is
reviewed under the deferential “substantial evidence” standard. “Claimants challenging the ALJ’s
credibility determination face an uphill battle.” Daniels v. Commissioner, 152 F. App’x 485, 488
(6th Cir. 2005). “Upon review, [the court must] accord to the ALJ’s determinations of credibility
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great weight and deference particularly since the ALJ has the opportunity, which [the court] d[oes]
not, of observing a witness’s demeanor while testifying.” Jones, 336 F.3d at 476. “The ALJ’s
findings as to a claimant’s credibility are entitled to deference, because of the ALJ’s unique
opportunity to observe the claimant and judge her subjective complaints.” Buxton v. Halter, 246
F.3d at 773; accord White v. Commissioner, 572 F.3d 272, 287 (6th Cir. 2009); Casey v. Secretary
of Health & Human Servs., 987 F.2d 1230, 1234 (6th Cir. 1993).
The ALJ found that plaintiff’s testimony regarding her subjective functional
limitations was not fully credible. The ALJ’s full analysis of the evidence is quite lengthy and will
not be reproduced in its entirety herein. Among other things, the ALJ noted that plaintiff’s daily
activities were inconsistent with the level of restriction she claimed. Her credibility was further
undermined by her failure to follow prescribed medical treatment:
After careful consideration of the evidence, the undersigned finds that the claimant’s
medically determinable impairments could reasonably be expected to produce the alleged
symptoms; however, the claimant’s statements concerning the intensity, persistence, and
limiting effects of these symptoms are not credible to the extent that they are inconsistent
with the above residual functional capacity assessment.
Although the undersigned has determined that the claimant’s work after her alleged onset
date was not substantial gainful activity, her work as a babysitter for over two years was,
nonetheless significant. Specifically, the claimant was responsible for picking up the
children after school, feeding them, and putting them to bed. She reported that she taught
them to swim and that she did other activities with them (Exhibit 4E).
Although the claimant alleged at hearing being dependent upon her boyfriend and now her
daughters to do household activities, other statements contained in the evidence of record
disclose that the claimant has had a greater activity level. Moreover, those daily activities
reflect that the claimant would be able to perform work at the light exertional level. She has
reported that she is capable of doing craft projects, making jewelry, enjoying the outdoors,
and attending flea markets. She has acknowledged that she lives alone and that she does
household chores including preparing meals and cleaning. She is able to drive an automobile
(Testimony and Exhibit 16E).

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Since her 2003 lumbar fusion, the claimant has received only conservative treatment for her
back complaints. The claimant has been prescribed Norco for pain and Ativan for Anxiety
and depression (Exhibit 15 E/2). In November 2006 the claimant stated that her medications
helped her. She felt better and was joking with the treating doctor. She felt well enough to
go to Las Vegas with her boyfriend and to Arizona with family members. In March 2007 she
was able to travel to Arizona for about one month (Exhibit 45F/30-31).
***
The claimant’s noncompliance with medical treatment casts further doubt on the credibility
of her statements of overwhelming, debilitating symptoms. Notably, in February 2005 CMH
closed the claimant’s case because of her failure to follow through with additional
appointments (Exhibit 15F).
***
There is no substantial justification for the claimant’s statements that she spends four to eight
hours reclining during the day because of her symptoms (Exhibits 16E/4, 19E). Indeed, the
objective medical findings, her treatment history, and the comments of the acceptable
medical sources of record support a conclusion that she is capable of performing a limited
range of light work.
(A.R. 29-31).
It was appropriate for the ALJ to take plaintiff’s daily activities into account in
making his credibility determination. See Cruse v. Commissioner, 502 F.3d 532, 542 (6th Cir.
2007); Blacha v. Secretary of Health & Human Servs., 927 F.2d 228, 231 (6th Cir. 1990). It was
also appropriate for the ALJ to consider plaintiff’s failure to follow prescribed treatment. The Social
Security regulations make pellucid that the claimant bears the burden of demonstrating “good
reason” for her failure to follow prescribed treatment: “If you do not follow the prescribed treatment
without good reason, we will not find you disabled.” 20 C.F.R. §§ 404.1530(b), 416.930(b). The
Sixth Circuit recognizes that a claimant’s failure to follow prescribed treatment is evidence
supporting an ALJ’s factual finding that the claimant’s testimony was not fully credible. See Sias
v. Secretary of Health & Human Servs., 861 F.2d 475, 479-80 (6th Cir. 1988). Substantial evidence
is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

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Heston v. Commissioner, 245 F.3d at 534. The ALJ credibility finding is supported by more than
substantial evidence, and the ALJ gave a more than adequate explanation why he found that
plaintiff’s testimony was not fully credible. See Rogers v. Commissioner, 486 F.3d at 247-49.

4.
Plaintiff argues that the ALJ “failed to properly consider” the lay testimony of Ms.
DeLong’s late boyfriend,5 her two daughters, and the opinions of Social Worker Rhonda Hill and
Physician’s Assistant Robert Poehl. (Plf. Brief at 47-57; Reply Brief at 4-5). None of the evidence
emphasized by plaintiff is evidence from an acceptable medical source. 20 C.F.R. §§ 404.1513(a),
416.913(a). Only “acceptable medical sources” can: (1) provide evidence establishing the existence
of a medically determinable impairment; (2) provide a medical opinion; and (3) be considered a
treating source whose medical opinion could be entitled to controlling weight under the treating
physician rule. See Titles II and XVI: Considering Opinions and Other Evidence from Sources Who
are not ‘Acceptable Medical Sources’ in Disability Claims; Considering Decisions on Disability by
Other Governmental and Nongovernmental Agencies, SSR 06-3p (reprinted at 2006 WL 2329939,
at * 1 (SSA Aug. 9, 2006)); see also Hickox v. Commissioner, No. 1:09-cv-343, 2011 WL 6000829,
at * 4 (W.D. Mich. Nov. 30, 2011). Family members, friends, social workers, therapists, and
physician’s assistants are classified as “other sources” 20 C.F.R. §§ 404.1513(d), 416.913(d). The
ALJ is required to “consider” evidence from such sources. 20 C.F.R. §§ 404.1527(b), (d)(4),
416.927(b), (d)(4).

5

Dennis Puccia died in April 2008. (Plf. Brief at 22, 48).
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A.

Testimony of Plaintiff’s Boyfriend and Daughters
Plaintiff states that the lay evidence from Mr. Puccia and her daughters Dawn

Wamser and Lorinda DeLong “is the lynchpin of Ms. DeLong’s claim” and argues that “the failure
to consider or properly evaluate the lay evidence in this case by the ALJ demonstrates that his
decision is not based on substantial evidence and his inability to be a fair and unbiased6 fact-finder.”
(Plf. Brief at 51-52). The ALJ considered the testimony provided by plaintiff’s boyfriend and
daughters and found that it was not entitled to significant weight, because these individuals were
biased in favor of plaintiff’s claims. The objective medical evidence provided a more accurate
measure of plaintiff’s functional limitations:
Dennis Puc[cia], the claimant’s boyfriend, appeared and testified at the prior hearing. The
credibility of his testimony is suspect because in May 2007 the claimant said to the certified
physician’s assistant that she wanted SSI because she was going to help her boyfriend with
expenses. Mr. Puc[cia] was therefore a biased witness. Mr. Puc[cia] was motivated for the
claimant to receive Social Security payments so that he could get a contribution toward the
household expenses. Mr. Puc[cia] is now deceased, and the undersigned has considered the
testimonies of the claimant’s daughters at the most recent hearing.
The claimant’s daughters, Dawn Wa[m]ser and Lor[inda] DeLong, testified that they and
other family members help the claimant with household and yard work. Ms. Wa[m]ser noted
that the claimant was very emotional and cries a lot. The witness stated that her mother has
also expressed the unreasonable belief that someone is trying to kill her, such as putting
poison in the car. Ms. DeLong related that the claimant did not have a substance abuse
problem but that she was unable to care for herself physically and mentally.
The witnesses’ comments tend to support the claimant’s testimony and are reflective of the
concern they have for their mother. Their comments, however, are pertinent only as thirdparty observations and are not a determining factor in the ultimate decision of whether or not

6

Plaintiff sprinkles allusions to the ALJ’s bias throughout her brief. Issues raised in a
perfunctory manner are deemed waived. See Clemente v. Vaslo, 679 F.3d 482, 497 (6th Cir. 2012).
Even assuming plaintiff did not waive the issue, she has shown nothing approaching the level of
evidence necessary to overcome the presumption that the ALJ carried out his duties fairly and
impartially. See Bailey v. Commissioner, 413 F. App’x 853, 856 (6th Cir. 2011); Collier v.
Commissioner, 108 F. App’x 358, 364 (6th Cir. 2004).
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the claimant is disabled. The undersigned is persuaded, rather, by the objective medical
findings, the comments of the acceptable medical sources, the claimant’s treatment regimen,
and her prescribed medication usage to conclude that the allegations of debilitating
symptoms and limitations are not credible. The undersigned finds that the claimant retains
the residual functional capacity for a limited range of simple, unskilled light work as set forth
above.
(A.R. 31-32). The court finds no error in the ALJ’s consideration of the lay opinion evidence
provided by Mr. Puccia and plaintiff’s daughters.

B.

Physician’s Assistant Robert Poehl and Social Worker/Therapist Rhonda Hill
Plaintiff argues that the ALJ committed reversible error in the weight given to the

opinions of Mr. Poehl and Ms. Hill. Social workers, therapists, and physician’s assistants are not
acceptable medical sources. The ALJ is required to consider information provided by such “other
sources.” See 20 C.F.R. §§ 404.1513(d), 416.913(d); SSR 06-3p, 2006 WL 2329939, at * 1, 4;
Cruse, 502 F.3d 532, 541 (6th Cir. 2007). The ALJ rejected Mr. Poehl’s opinion in a very short
paragraph (A.R.31) and he made one reference to Ms. Hill (A.R. 27), but did not consider her
opinions in any detail. (A.R. 795-97, 1158-60, 1183-84). It is not necessary to determine whether
the ALJ’s handling of these opinions rose to the level of reversible error. See Gayheart v.
Commissioner, 2013 WL 896255, at * 12. It is sufficient to note that on remand the Commissioner
will have another opportunity to carefully consider the opinions provided by these individuals.

5.
Plaintiff asks the court to order the Commissioner to award DIB and SSI benefits.
(Plf. Brief at 59; Reply Brief at 5). “[T]he court can reverse the [Commissioner’s] decision and
immediately award benefits only if all essential factual issues have been resolved and the record
adequately establishes a plaintiff’s entitlement to benefits.” See Faucher v. Secretary of Health &
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Human Servs., 17 F.3d 171, 176 (6th Cir. 1994). “A judicial award of benefits is proper only where
the proof of disability is overwhelming or where the proof of disability is strong and evidence to the
contrary is lacking.” Id.; see Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985); see also
Kalmbach v. Commissioner, 409 F. App’x 852, 865 (6th Cir. 2011). Here, the Commissioner’s
decision is being reversed because the ALJ did not comply with the procedural requirement of
providing “good reasons” for the weight given to the opinions of plaintiff’s treating physicians, not
because the record strongly establishes plaintiff’s entitlement to benefits.

Conclusion
For the reasons set forth herein, the Commissioner’s decision will be vacated and the
matter remanded to the Commissioner under sentence four of 42 U.S.C. § 405(g) for further
administrative proceedings.

Dated: March 28, 2013

/s/ Joseph G. Scoville
United States Magistrate Judge

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