Evans v. Commissioner of Social Security

Filing 13

OPINION reversing the Commissioner's decision and remanding the matter for further factual findings pursuant to sentence four of 42 U.S.C. § 405(g); signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, jal)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JUDITH EVANS,
Plaintiff,

Hon. Ellen S. Carmody

v.
Case No. 1:11-cv-1195
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
_____________________________________/
OPINION
This is an action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C.
§ 405(g), to review a final decision of the Commissioner of Social Security denying Plaintiff’s claim
for Supplemental Security Income (SSI) benefits under Title XVI of the Social Security Act. On
February 15, 2012, the parties agreed to proceed in this Court for all further proceedings, including
an order of final judgment. (Dkt. #10).
Section 405(g) limits the Court to a review of the administrative record and provides
that if the Commissioner’s decision is supported by substantial evidence it shall be conclusive. The
Commissioner has found that Plaintiff is not disabled within the meaning of the Act. For the reasons
stated below, the Court concludes that the Commissioner’s decision is not supported by substantial
evidence. Accordingly, the Commissioner’s decision is reversed and this matter remanded for
further factual findings pursuant to sentence four of 42 U.S.C. § 405(g).

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STANDARD OF REVIEW
The Court’s jurisdiction is confined to a review of the Commissioner’s decision and
of the record made in the administrative hearing process. See Willbanks v. Sec’y of Health and
Human Services, 847 F.2d 301, 303 (6th Cir. 1988). The scope of judicial review in a social security
case is limited to determining whether the Commissioner applied the proper legal standards in
making her decision and whether there exists in the record substantial evidence supporting that
decision. See Brainard v. Sec’y of Health and Human Services, 889 F.2d 679, 681 (6th Cir. 1989).
The Court may not conduct a de novo review of the case, resolve evidentiary
conflicts, or decide questions of credibility. See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.
1984). It is the Commissioner who is charged with finding the facts relevant to an application for
disability benefits, and her findings are conclusive provided they are supported by substantial
evidence. See 42 U.S.C. § 405(g).
Substantial evidence is more than a scintilla, but less than a preponderance. See
Cohen v. Sec’y of Dep’t of Health and Human Services, 964 F.2d 524, 528 (6th Cir. 1992) (citations
omitted). It is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Bogle v. Sullivan, 998 F.2d 342,
347 (6th Cir. 1993). In determining the substantiality of the evidence, the Court must consider the
evidence on the record as a whole and take into account whatever in the record fairly detracts from
its weight. See Richardson v. Sec’y of Health and Human Services, 735 F.2d 962, 963 (6th Cir.
1984).
As has been widely recognized, the substantial evidence standard presupposes the
existence of a zone within which the decision maker can properly rule either way, without judicial
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interference. See Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (citation omitted). This
standard affords to the administrative decision maker considerable latitude, and indicates that a
decision supported by substantial evidence will not be reversed simply because the evidence would
have supported a contrary decision. See Bogle, 998 F.2d at 347; Mullen, 800 F.2d at 545.

PROCEDURAL POSTURE
Plaintiff was 45 years old on her alleged disability onset date. (Tr. 114, 203). She
successfully completed high school, but has no past relevant work experience. (Tr. 17). Plaintiff
applied for benefits on September 12, 2008, alleging that she had been disabled since September 16,
2005, due to lymphedema and complications from cancer treatment. (Tr. 114-17, 135). Plaintiff
later amended her disability onset date to June 1, 2008. (Tr. 203). Plaintiff’s application was denied,
after which time she requested a hearing before an Administrative Law Judge (ALJ). (Tr. 73-113).
On October 1, 2010, Plaintiff appeared before ALJ James Prothro, with testimony being offered by
Plaintiff and vocational expert, Paul Delmar. (Tr. 26-72). In a written decision dated November 12,
2010, the ALJ determined that Plaintiff was not disabled. (Tr. 11-18). The Appeals Council
declined to review the ALJ’s determination, rendering it the Commissioner’s final decision in the
matter. (Tr. 1-6). Plaintiff subsequently initiated the appeal pursuant to 42 U.S.C. § 405(g), seeking
judicial review of the ALJ’s decision.

RELEVANT MEDICAL HISTORY
In September 2005, Plaintiff was diagnosed with bilateral breast cancer. (Tr. 277-81).
Plaintiff subsequently began chemotherapy treatment supervised by Dr. Marcia Liepman with the
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West Michigan Cancer Center. (Tr. 256-65). On March 21, 2006, Plaintiff underwent “modified
radical mastectomy” of the right breast. (Tr. 214-15). Following surgery, Plaintiff received further
chemotherapy treatment. (Tr. 222-25). Treatment notes dated August 18, 2006, indicate that there
was “no evidence of relapse of her right breast cancer.” (Tr. 225).
On October 9, 2007, Plaintiff was examined by Dr. Liepman. Plaintiff reported that
she was continuing to experience “swelling of her right arm.” (Tr. 339). An examination revealed
that Plaintiff “has lymphedema1 of her entire arm on the right, from her fingertips to her shoulder.”
(Tr. 339). On May 6, 2008, Dr. Liepman reported that Plaintiff “has developed rather significant
right arm lymphedema.” (Tr. 336). On September 9, 2008, Dr. Liepman reported that Plaintiff’s
“lymphedema has gotten worse.” (Tr. 334). Following a January 27, 2009 examination, Dr.
Liepman described Plaintiff’s right arm lymphedema as “severe.” (Tr. 423). Treatment notes
authored by Dr. Liepman, on June 23, 2009, indicate that Plaintiff “is continuing to have problems
with lymphedema and soreness in her chest.” (Tr. 421). On July 6, 2010, Plaintiff was examined
by Dr. Liepman. (Tr. 454-55). An examination of Plaintiff’s right upper extremity revealed that it
was “quite tender” and, despite treatment, “still massively swollen from the shoulder down.” (Tr.
454).
On October 19, 2010, Dr. Nabil Nouna executed a sworn statement regarding
Plaintiff’s impairments and limitations. (Tr. 483-84). The doctor reported that he operates the
Thomas Street Clinic in Allegan, Michigan and has treated Plaintiff since “late 2005.” (Tr. 483).

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Lymphedema refers to swelling of the arms or legs “caused by a blockage [of the] lymphatic system, an
important part of [the] immune and circulatory systems.” See Lymphedema, available at
http://www.mayoclinic.com/health/lymphedema/DS00609 (last visited on February 22, 2013). The blockage prevents
lymph fluid from draining well, and as the fluid builds up, the swelling continues.” Lymphedema is “most commonly
caused by the removal of or damage to [the] lymph nodes as part of cancer treatment.” Id.

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Dr. Nouna reported that he was presently treating Plaintiff for anxiety, diabetes, hypothyroidism,
sinusitis, obesity, sleep arousal disorder, and cervical spondylosis. (Tr. 483). With respect to
Plaintiff’s breast cancer and lymphedema, Dr. Nouna reported that he “stays in contact with” Dr.
Liepman regarding such. (Tr. 483). Dr. Nouna reported that Plaintiff “has made repeated reports
to this office regarding her chronic, constant, severe pain in her right arm, shoulder, shoulder blade
and right chest regions of her torso.” (Tr. 483). The doctor reported that he believed that Plaintiff
was “very credible” regarding the severity of her pain. (Tr. 483). Dr. Nouna stated that Plaintiff was
unable to “lift over five pounds on a frequent basis” and “can be on her feet for less than two hours
each day.” (Tr. 484). The doctor further noted that “chronic fatigue, lack of energy, lack of any
ability to focus/concentrate are symptoms consistent with her medical problems” and that “her level
of pain will prevent her from concentrating on any particular event.” (Tr. 484). The doctor
concluded that, “I do not believe [Plaintiff] is currently capable of being employed in any full time
employment position and has not been capable since early 2008.” (Tr. 483).

ANALYSIS OF THE ALJ’S DECISION
The social security regulations articulate a five-step sequential process for evaluating
disability. See 20 C.F.R. §§ 404.1520(a-f), 416.920(a-f).2 If the Commissioner can make a

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1. An individual who is working and engaging in substantial gainful activity will not be found to be “disabled”
regardless of medical findings (20 C.F.R. 404.1520(b));
2. An individual who does not have a “severe impairment” will not be found “disabled” (20 C.F.R.
404.1520(c));
3. If an individual is not working and is suffering from a severe impairment which meets the duration
requirement and which “meets or equals” a listed impairment in Appendix 1 of Subpart P of Regulations No.
4, a finding of “disabled” will be made without consideration of vocational factors (20 C.F.R. 404.1520(d));
4. If an individual is capable of performing work he or she has done in the past, a finding of “not disabled”

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dispositive finding at any point in the review, no further finding is required. See 20 C.F.R. §§
404.1520(a), 416.920(a). The regulations also provide that if a claimant suffers from a nonexertional
impairment as well as an exertional impairment, both are considered in determining her residual
functional capacity. See 20 C.F.R. §§ 404.1545, 416.945.
The burden of establishing the right to benefits rests squarely on Plaintiff’s shoulders,
and she can satisfy her burden by demonstrating that her impairments are so severe that she is unable
to perform her previous work, and cannot, considering her age, education, and work experience,
perform any other substantial gainful employment existing in significant numbers in the national
economy. See 42 U.S.C. § 423(d)(2)(A); Cohen, 964 F.2d at 528.
While the burden of proof shifts to the Commissioner at step five, Plaintiff bears the
burden of proof through step four of the procedure, the point at which her residual functioning
capacity (RFC) is determined. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Walters v.
Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997) (ALJ determines RFC at step four, at which
point claimant bears the burden of proof).
The ALJ determined that Plaintiff suffered from: (1) lymphedema; (2) obesity; (3)
diabetes mellitus; and (4) back pain of the lumbar spine, severe impairments that whether considered
alone or in combination with other impairments, failed to satisfy the requirements of any impairment
identified in the Listing of Impairments detailed in 20 C.F.R., Part 404, Subpart P, Appendix 1. (Tr.
13-15).

must be made (20 C.F.R. 404.1520(e));
5. If an individual’s impairment is so severe as to preclude the performance of past work, other factors
including age, education, past work experience, and residual functional capacity must be considered to
determine if other work can be performed (20 C.F.R. 404.1520(f)).

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With respect to Plaintiff’s residual functional capacity, the ALJ determined that
Plaintiff retained the capacity to perform light work3 subject to the following limitations: (1) she
cannot lift/carry more than 10 pounds; (2) she can stand/walk for “about” six hours during an 8-hour
workday; (3) she can sit for “about” six hours during an 8-hour workday; (4) no frequent push/pull
and hand control activities with her right upper extremity; (5) she can frequently climb ramps and
stairs, but can never climb ladders, ropes, or scaffolds; (6) she can occasionally stoop, kneel, crouch,
and crawl; (7) she can use her right upper extremity in an assist capacity; (8) she can occasionally
use her right upper extremity to perform gross and fine manipulation activities as well as reach in
all directions including overhead and; and (9) she must avoid concentrated exposure to extreme cold,
extreme heat, and vibration. (Tr. 15).
The ALJ concluded that Plaintiff had no past relevant work, at which point the burden
of proof shifted to the Commissioner to establish by substantial evidence that a significant number
of jobs exist in the national economy which Plaintiff could perform, her limitations notwithstanding.
See Richardson, 735 F.2d at 964. While the ALJ is not required to question a vocational expert on
ther issue, “a finding supported by substantial evidence that a claimant has the vocational
qualifications to perform specific jobs” is needed to meet the burden. O’Banner v. Sec’y of Health
and Human Services, 587 F.2d 321, 323 (6th Cir. 1978) (emphasis added). Ther standard requires
more than mere intuition or conjecture by the ALJ that the claimant can perform specific jobs in the
national economy. See Richardson, 735 F.2d at 964. Accordingly, ALJs routinely question

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Light work involves lifting “no more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds.” 20 C.F.R. § 404.1567. Furthermore, work is considered “light” when it involves “a good
deal of walking or standing,” defined as “approximately 6 hours of an 8-hour workday.” 20 C.F.R. § 404.1567; Titles II
and XVI: Determining Capability to do Other Work - the Medical-Vocational Rules of Appendix 2, SSR 83-10, 1983 WL
31251 at *6 (S.S.A., 1983); Van Winkle v. Commissioner of Social Security, 29 Fed. Appx. 353, 357 (6th Cir., Feb. 6,
2002).

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vocational experts in an attempt to determine whether there exist a significant number of jobs which
a particular claimant can perform, her limitations notwithstanding. Such was the case here, as the
ALJ questioned vocational expert Paul Delmar.
The vocational expert testified that there existed approximately 8,000 jobs in the state
of Michigan which an individual with Plaintiff’s RFC could perform, such limitations
notwithstanding. (Tr. 66-67). This represents a significant number of jobs. See Born v. Sec’y of
Health and Human Services, 923 F.2d 1168, 1174 (6th Cir. 1990); Hall v. Bowen, 837 F.2d 272, 274
(6th Cir. 1988); Martin v. Commissioner of Social Security, 170 Fed. Appx. 369, 374 (6th Cir., Mar.
1, 2006). Accordingly, the ALJ concluded that Plaintiff was not disabled as defined by the Social
Security Act.
Plaintiff asserts a single claim on appeal - that the ALJ failed to properly analyze the
opinions expressed by Dr. Nouna, one of her treating physicians. Plaintiff argues that due to this
error, this matter should be remanded “for re-evaluation of Dr. Nouna’s opinion.” As noted above,
on October 19, 2010, Dr. Nouna reported that Plaintiff was unable to “lift over five pounds on a
frequent basis” and “can be on her feet for less than two hours each day.” The doctor further noted
that “chronic fatigue, lack of energy, lack of any ability to focus/concentrate are symptoms consistent
with her medical problems” and that “her level of pain will prevent her from concentrating on any
particular event.” Dr. Nouna concluded that, “I do not believe [Plaintiff] is currently capable of
being employed in any full time employment position.”
The treating physician doctrine recognizes that medical professionals who have a long
history of caring for a claimant and her maladies generally possess significant insight into her
medical condition. See Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994). An ALJ must,
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therefore, “give the opinion of a treating source controlling weight if he finds the opinion ‘wellsupported by medically acceptable clinical and laboratory diagnostic techniques’ and ‘not
inconsistent with the other substantial evidence in [the] case record.’” Wilson v. Commissioner of
Social Security, 378 F.3d 541, 544 (6th Cir. 2004).
Such deference is appropriate, however, only where the particular opinion “is based
upon sufficient medical data.” Miller v. Sec’y of Health and Human Services, 1991 WL 229979 at
*2 (6th Cir., Nov. 7, 1991) (citing Shavers v. Sec’y of Health and Human Services, 839 F.2d 232,
235 n.1 (6th Cir. 1987)). The ALJ may reject the opinion of a treating physician where such is
unsupported by the medical record, merely states a conclusion, or is contradicted by substantial
medical evidence. See Cohen, 964 F.2d at 528; Miller v. Sec’y of Health and Human Services, 1991
WL 229979 at *2 (6th Cir., Nov. 7, 1991) (citing Shavers v. Sec’y of Health and Human Services,
839 F.2d 232, 235 n.1 (6th Cir. 1987)); Cutlip v. Sec’y of Health and Human Services, 25 F.3d 284,
286-87 (6th Cir. 1994).
If an ALJ accords less than controlling weight to a treating source’s opinion, the ALJ
must “give good reasons” for doing so. Wilson, 378 F.3d at 544. In articulating such reasons, the
ALJ must consider the following factors: (1) length of the treatment relationship and frequency of
the examination, (2) nature and extent of the treatment relationship, (3) supportability of the opinion,
(4) consistency of the opinion with the record as a whole, (5) the specialization of the treating source,
and (6) other relevant factors. See 20 C.F.R. §§ 404.1527, 416.927; see also, Wilson, 378 F.3d at
544. The ALJ is not required, however, to explicitly discuss each of these factors. See, e.g., Oldham
v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007); Undheim v. Barnhart, 214 Fed. Appx. 448, 450 (5th
Cir., Jan. 19, 2007). Instead, the record must reflect that the ALJ considered those factors relevant
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to her assessment. See Oldham, 509 F.3d at 1258; Undheim, 214 Fed. Appx. at 450.
The ALJ rejected Dr. Nouna’s opinion on the ground that “the regulations provide
that the final responsibility for deciding such issues as what an individual’s residual functional
capacity is and whether the residual functional capacity would prevent an individual from returning
to his work is an reserved to the Commissioner.” (Tr. 16-17). To the extent that the ALJ rejected
Dr. Nouna’s opinion that Plaintiff was not “currently capable of being employed in any full time
employment position,” such is appropriate. See See 20 C.F.R. § 416.927(e)(1) (an opinion by a
treating source that a claimant is disabled is entitled to no deference because the determination of
disability is a matter reserved to the Commissioner).
However, as noted above, in addition to concluding that Plaintiff was unable to work,
Dr. Nouna also articulated specific functional limitations to which Plaintiff was subject. The ALJ
gave no reasons whatsoever for rejecting the doctor’s opinions on such. The ALJ’s failure to
articulate any rationale for rejecting the opinions in question renders his decision infirm and requires
that the matter be remanded for proper evaluation of Dr. Nouna’s opinion. A recent Sixth Circuit
case is instructive on this point.
In Kalmbach v. Commissioner of Social Security, 409 Fed. Appx. 852 (6th Cir., Jan.
7, 2011), two treating physicians offered opinions concerning Kalmbach’s physical limitations. Id.
at 855-56. The doctors reported that Kalmbach was unable to work, but also identified specific
functional limitations to which Kalmbach was subject. Id. The ALJ rejected the doctors’ opinions,
in part, on the ground that “the determination of disability is a conclusion reserved to the
Commissioner.” Id. at 861. The Sixth Circuit found that the ALJ’s rationale failed to satisfy the
aforementioned standard. As the court noted, “the fact that the ultimate determination of disability.
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. .is reserved to the Commissioner. . .did not supply the ALJ with a legitimate basis to disregard the
physicians’. . .assessment of Kalmbach’s abilities to perform work-related activities.” Id. As the
Sixth Circuit concluded, this particular error, by itself, mandated reversal and remand. Id. at 861-62.
The Court discerns no relevant distinction between the legal error that was identified in Kalmbach
and the ALJ’s actions in the present case. In both instances, the ALJ erred by ignoring one particular
aspect of a treating physician’s opinion, articulating specific functional limitations, because a
separate aspect of the doctor’s opinion concerned a matter reserved to the Commissioner. The same
result is, therefore, required.4

CONCLUSION
For the reasons articulated herein, the Court concludes that the ALJ’s decision is not
supported by substantial evidence. Accordingly, the Commissioner’s decision is reversed and the
matter remanded for further factual findings pursuant to sentence four of 42 U.S.C. § 405(g).
A judgment consistent with this opinion will enter.

Date: February 28, 2013

/s/ Ellen S. Carmody
ELLEN S. CARMODY
United States Magistrate Judge

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As previously noted, Plaintiff requests that this matter be remanded for proper evaluation of Dr. Nouna’s
opinion. Plaintiff has not requested that this matter be remanded for an award of benefits. However, even if Plaintiff had
requested such relief, the result would be the same as there does not exist compelling evidence that Plaintiff is disabled.
See Faucher v. Secretary of Health and Human Serv’s, 17 F.3d 171, 176 (6th Cir. 1994) (the court can reverse the
Commissioner’s decision and award benefits only if all essential factual issues have been resolved and proof of disability
is compelling). While the ALJ’s decision is faulty, there does not exist compelling evidence that Plaintiff is disabled.
Evaluation of Plaintiff’s claim requires the resolution of factual disputes which this Court is neither authorized nor
competent to undertake in the first instance.

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