Sonnenberg v. Commissioner of Social Security
OPINION; signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
Case No. 1:12-cv-154
Hon. Hugh W. Brenneman, Jr.
COMMISSIONER OF SOCIAL
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of
a final decision of the Commissioner of the Social Security Administration (Commissioner) denying
her claim for disability insurance benefits (DIB) and supplemental security income (SSI).
Plaintiff was born on May 16, 1987 (AR 146).1 She alleged a disability onset date
of October 1, 2007 (AR 11). Plaintiff graduated from high school and had previous employment as
a cashier, fast food crew member, and stocker at a grocery store (AR 151, 156). Plaintiff identified
her disabling conditions as: major depressive disorder; generalized anxiety disorder; attention deficit
disorder, neurologically-based cognitive disorder; post-traumatic stress disorder; extremely impaired
delayed memory; extremely slow processing speed; schizotypal personality disorder; severely
impaired verbal memory; and avoidant/dependant personality disorder (AR 148). Plaintiff stated
that due to these conditions: she is rejected and mocked; people become frustrated and angry with
her; she will never be able to drive; and she speaks and moves much slower than most people (AR
Citations to the administrative record will be referenced as (AR “page #”).
150). The administrative law judge (ALJ) reviewed plaintiff’s claim de novo and entered a written
decision denying benefits on July 16, 2010 (AR 9-16). This decision, which was later approved by
the Appeals Council, has become the final decision of the Commissioner and is now before the Court
I. LEGAL STANDARD
This court’s review of the Commissioner’s decision is typically focused on
determining whether the Commissioner's findings are supported by substantial evidence. 42 U.S.C.
§405(g); McKnight v. Sullivan, 927 F.2d 241 (6th Cir. 1990). “Substantial evidence is more than a
scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Cutlip v. Secretary of Health & Human Services,
25 F.3d 284, 286 (6th Cir. 1994). A determination of substantiality of the evidence must be based
upon the record taken as a whole. Young v. Secretary of Health & Human Services, 925 F.2d 146
(6th Cir. 1990).
The scope of this review is limited to an examination of the record only. This Court
does not review the evidence de novo, make credibility determinations or weigh the evidence.
Brainard v. Secretary of Health & Human Services, 889 F.2d 679, 681 (6th Cir. 1989). The fact that
the record also contains evidence which would have supported a different conclusion does not
undermine the Commissioner’s decision so long as there is substantial support for that decision in
the record. Willbanks v. Secretary of Health & Human Services, 847 F.2d 301, 303 (6th Cir. 1988).
Even if the reviewing court would resolve the dispute differently, the Commissioner’s decision must
stand if it is supported by substantial evidence. Young, 925 F.2d at 147.
A claimant must prove that he suffers from a disability in order to be entitled to
benefits. A disability is established by showing that the claimant cannot engage in substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period of
not less than twelve months. See 20 C.F.R. § 404.1505; Abbott v. Sullivan, 905 F.2d 918, 923 (6th
Cir. 1990). In applying the above standard, the Commissioner has developed a five-step analysis:
The Social Security Act requires the Secretary to follow a “five-step
sequential process” for claims of disability. First, plaintiff must demonstrate that she
is not currently engaged in “substantial gainful activity” at the time she seeks
disability benefits. Second, plaintiff must show that she suffers from a “severe
impairment” in order to warrant a finding of disability. A “severe impairment” is one
which “significantly limits . . . physical or mental ability to do basic work activities.”
Third, if plaintiff is not performing substantial gainful activity, has a severe
impairment that is expected to last for at least twelve months, and the impairment
meets a listed impairment, plaintiff is presumed to be disabled regardless of age,
education or work experience. Fourth, if the plaintiff's impairment does not prevent
her from doing her past relevant work, plaintiff is not disabled. For the fifth and final
step, even if the plaintiff’s impairment does prevent her from doing her past relevant
work, if other work exists in the national economy that plaintiff can perform, plaintiff
is not disabled.
Heston v. Commissioner of Social Security, 245 F.3d 528, 534 (6th Cir. 2001) (citations omitted).
The claimant bears the burden of proving the existence and severity of limitations
caused by her impairments and the fact that she is precluded from performing her past relevant work
through step four. Jones v. Commissioner of Social Security, 336 F.3d 469, 474 (6th Cir. 2003).
However, at step five of the inquiry, “the burden shifts to the Commissioner to identify a significant
number of jobs in the economy that accommodate the claimant’s residual functional capacity
(determined at step four) and vocational profile.” Id. If it is determined that a claimant is or is not
disabled at any point in the evaluation process, further review is not necessary. Mullis v. Bowen, 861
F.2d 991, 993 (6th Cir. 1988).
“The federal court’s standard of review for SSI cases mirrors the standard applied
in social security disability cases.” D’Angelo v. Commissioner of Social Security, 475 F. Supp. 2d
716, 719 (W.D. Mich. 2007), citing Bailey v. Secretary of Health and Human Servs., No. 90-3265,
1991 WL 310 at * 3 (6th Cir. Jan. 3, 1991). “The proper inquiry in an application for SSI benefits
is whether the plaintiff was disabled on or after her application date.” Casey v. Secretary of Health
and Human Services, 987 F.2d 1230, 1233 (6th Cir. 1993).
II. ALJ’S DECISION
Plaintiff’s claim failed at the fifth step of the evaluation. The ALJ initially found that
plaintiff has not engaged in substantial gainful activity since the alleged onset date of October 1,
2007 and that she met the insured status requirements under the Act through June 30, 2010 (AR 11).
Second, the ALJ found that plaintiff has the following severe impairments: a cognitive disorder; an
anxiety disorder; and a personality disorder (AR 11). At the third step, the ALJ found that plaintiff
did not have an impairment or combination of impairments that met or equaled the requirements of
the Listing of Impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (AR 12). Specifically, plaintiff did
not meet the requirements of Listings 12.02 (organic mental disorders), 12.06 (anxiety related
disorders) or 12.08 (personality disorders) (AR 12).
The ALJ decided at the fourth step that:
[T]he claimant has the residual functional capacity to perform a full range of work
at all exertional levels but with the following non-exertional limitations: only simple,
repetitive and routine tasks; with only occasional contact with supervisors and the
general public and occasional changes in the work setting.
(AR 13). The ALJ also found that plaintiff was unable to perform any of her past relevant work (AR
At the fifth step, the ALJ determined that plaintiff could perform a significant number
of unskilled jobs at all exertional levels in the regional economy (defined as the lower peninsula of
Michigan) (AR 15-16). Specifically, plaintiff could perform the following unskilled, light jobs in
the regional economy: laundry room worker (6,000 jobs); horticultural/greenhouse worker (1,200
jobs); and cleaner (3rd shift) (6,000 jobs) (AR 16). The ALJ also found that plaintiff could perform
additional jobs which were available at other exertional levels (AR 16). Accordingly, the ALJ
determined that plaintiff has not been under a disability, as defined in the Social Security Act, from
October 1, 2007 (the alleged onset date) through July 16, 2010 (the date of the decision) (AR 16).
Plaintiff raised one issue on appeal:
The Social Security Administration failed to give proper weight to
the only treating physician’s opinions that plaintiff is not capable of
being employed in any full time employment positions because of her
cognitive disorder, anxiety disorder and a personality disorder.
Plaintiff contends that the ALJ failed to properly evaluate the opinions of Gary
Burkhart, Ph.D. A treating physician’s medical opinions and diagnoses are entitled to great weight
in evaluating plaintiff's alleged disability. Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001). “In
general, the opinions of treating physicians are accorded greater weight than those of physicians who
examine claimants only once.” Walters v. Commissioner of Social Security, 127 F.3d 525, 529-30
(6th Cir. 1997). “The treating physician doctrine is based on the assumption that a medical
professional who has dealt with a claimant and his maladies over a long period of time will have a
deeper insight into the medical condition of the claimant than will a person who has examined a
claimant but once, or who has only seen the claimant’s medical records.” Barker v. Shalala, 40 F.3d
789, 794 (6th Cir. 1994). See 20 C.F.R. § 404.1527(c)(2) (“Generally, we give more weight to
opinions from your treating sources, since these sources are likely to be the medical professionals
most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring
a unique perspective to the medical evidence that cannot be obtained from the objective medical
findings alone or from reports of individual examinations, such as consultative examinations or brief
hospitalizations”). Under the regulations, a treating source’s opinion on the nature and severity of
a claimant’s impairment must be given controlling weight if the Commissioner finds that: (1) the
opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques; and
(2) the opinion is not inconsistent with the other substantial evidence in the case record.
Gayheart v. Commissioner of Social Security, 710 F.3d 365, 375 (6th Cir. 2013); 20 C.F.R. §§
404.1527(c)(2) and § 416.927(c)(2). An ALJ is not bound by the conclusory statements of doctors,
particularly where the statements are unsupported by detailed objective criteria and documentation.
Buxton, 246 F.3d at 773; Cohen v. Secretary of Health & Human Services, 964 F.2d 524, 528 (6th
In summary, the opinions of a treating physician “are only accorded great weight
when they are supported by sufficient clinical findings and are consistent with the evidence.” Cutlip
v. Secretary of Health and Human Services, 25 F.3d 284, 287 (6th Cir. 1994). Finally, the ALJ must
articulate good reasons for not crediting the opinion of a treating source.
See Wilson v.
Commissioner of Social Security, 378 F.3d 541, 545 (6th Cir. 2004); 20 C.F.R. §§ 404.1527(c)(2)
and 416.927(c)(2) (“[w]e will always give good reasons in our notice of determination or decision
for the weight we give your treating source’s opinion”).
Dr. Burkhart stated that he had treated plaintiff since July 12, 2007 (AR 438). The
doctor prepared a neuropsychological assessment report, based on an examination conducted on
July 12th and 25th, 2007 (AR 356-60). Based on his examination, Dr. Burkhart’s assessment set
forth the following “summary and conclusions”:
Currently, Leah Sonnenberg is estimated to be functioning in the average
range of intelligence with similar verbal and performance abilities. Of note however,
is her significantly slow processing speed (time it takes her to process new
information). Her delayed memory, particularly for verbal information is severely
impaired. Her language abilities, visuo-spatial abilities, academic abilities, and
attention abilities are [sic] appear intact. Her executive functions are intact.
The overall pattern of the neuropsychological assessment is consistent with
Leah’s lifelong struggle with learning. Her adjustment to her limitations continues
to be a struggle. Of some concern is the report of poor sleep and her continued
difficulty with bladder control. This might suggest that further neurological
evaluation would be appropriate, perhaps with a sleep study and other review to
exclude the possibility of noctumal seizures.
The doctor’s relevant opinions appear in his Recommendations 3, 4 and 5:
In a work setting, Leah will struggle to learn new information,
particularly information presented verbally. A job Leah enjoys will
make learning new material somewhat less of a chore for her. In
addition, her work should be in a protected setting, due to her poor
memory and speed of processing information: Leah is not able to
respond quickly or in novel ways to new situations.
Leah will remember things best that she has seen: written notes,
pictures showing instructions (rather than verbal instructions), being
shown where something is (rather than told) will help her to best
utilize her memory.
Based on these results Leah should not drive a motor vehicle. Leah’s
poor processing speed does not allow her to make rapid judgments or
scan multiple stimuli at once. If she wants to contest this view she
should undergo an evaluation at the Mary Free Bed Rehabilitation
Hospital driving program.
Dr. Burkhart translated these conclusions and recommendations in a letter dated July
25, 2007, in which he set forth the following work restrictions:
To Whom It May Concern:
I have completed a neuropsychological evaluation on Leah Sonnenberg. Ms.
Sonnenberg has a neurologically based cognitive disorder.
In a work setting, Ms. Sonnenberg will struggle to leam new information,
particularly information presented verbally. Her work should be in a protected
setting: Ms. Sonnenberg is not able to respond quickly or in novel ways to new
Ms. Sonnenberg will remember things best that she has seen; written notes,
pictures showing instructions (rather than verbal instructions), being shown where
something is (rather than told) will help her to best utilize her memory.
In addition, due to her condition, Ms. Sonnenberg will perform best when not
under stress. This may include working part-time, which would allow her adequate
time to process events and thus be less stressed.
(AR 429). In a subsequent “to whom it may concern” letter dated September 4, 2007, Dr. Burkhart
stated, “[i]t is my strong recommendation that Ms. Sonnenberg only work three days a week due to
her medical condition” (AR 441).
On October 20, 2008, Dr. Burkhart performed another neuropsychological assessment
report, which was requested “to assist with possible guardianship needs” (AR 430). It was reported
that while plaintiff “was doing better from a psychological standpoint,” she “still gives the
impression of someone younger than her stated age [of 21 years]” (AR 430). Her psychological
profile was relatively stable with her July 2007 results, with the following exceptions: a significant
improvement in her delayed memory skills; a significant drop in her visual/spatial skills; and
improvement in her attention (AR 431). In addition, Dr. Burkhart found that plaintiff’s executive
functions “reflect an area of significant impairment,” which “will result in poor insight, poor
judgment and difficulties with organizing her activities” (AR 432). With respect to job related
skills, the doctor found that:
She continues to have a slowed processing speed and will do best with tasks
that are overlearned. Her best performance will come on tasks that do not have a
deadline, and a decreased work schedule to allow her time to decompress between
the expectations of having to perform on the job.
(AR 432). Dr. Burkhart also concluded: that it would be helpful to have someone to help plaintiff
make major decisions about health care or finances; that plaintiff should be involved in the decisions
“especially if she is able to express reasoning in a credible manner”; that she should have extensive
time (i.e., one day) to think about important decision; and that she presents “as immature for her
age” (AR 432). In his recommendations, the doctor noted that due to her immaturity, plaintiff “will
likely be gullible and susceptible to be taken advantage of due to her naivety” and that she will do
best in a structured setting where others can have her best interests in mind (AR 432). Once again,
the doctor cautioned against plaintiff driving a motor vehicle unless evaluated by a driving
rehabilitation program (AR 432).
Dr. Burkhart prepared another neuropsychological re-assessment report on April 16,
2010, (AR 433). This report was an updated assessment prepared for a judge “for guardianship
purposes” (AR 433). In this report, the doctor found that the prior assessment reports had merit and
that plaintiff’s test results reflected “a stable pattern of cognitive strengths and weaknesses” (AR
On June 14, 2010, Dr. Burkhart prepared a medical provider’s assessment of ability
to do mental work-related activities, which stated the following opinions. With respect to “making
occupational adjustments,” the doctor found that plaintiff had extreme limitations (relating to coworkers, dealing with the public, using judgment, dealing with work stresses and maintaining
attention/concentration) and marked limitations (following work rules, interacting with supervisors,
and functioning independently) (AR 436). With respect to the ability to make performance
adjustments, the doctor felt that plaintiff had extreme limitations in understanding, remembering and
carrying out “complex job instructions” and marked limitations in understanding, remembering and
carrying out even “simple job instructions” (AR 436-37). With respect to making personal/social
adjustments, the doctor felt that plaintiff had extreme limitations in relating predictably in social
situations, and marked limitations in maintaining personal appearance, behaving in an emotionally
stable manner, and demonstrating reliability (AR 437). With respect to functional limitations, the
doctor opined that plaintiff had extreme limitations in maintaining social functioning and
concentration, persistence and pace, and that she had marked limitations in her activities of daily
living (AR 437). The doctor supported his findings by referring to his assessments and noting that
a birth injury is suspected in plaintiff’s condition (AR 436-37). Based on these limitations, Dr.
Burkhart felt that plaintiff would be absent from work more than three times a month and that she
would not able to manage benefits (AR 438).
The ALJ evaluated Dr. Burkhart’s opinions as follows:
As for the opinion evidence, the claimant submitted the evaluation of Dr.
Burkhart (Exhibit 15F). This was completed in June 2010. Before assessing it, one
should note that in July 2007 Dr. Burkhart only recommended avoiding verbal
instruction, work in a protected setting and no driving (Exhibit 3F/5). He
summarized that in a letter describing low stress, protected work, which he noted
“may” mean part time work (Exhibit 12F). Two months later, he stiffened that
recommendation a bit, saying he “strongly recommended” part time work - but
seemed to be focused on the current job in the fast food restaurant (Exhibit 16F).
The June 2010 assessment puts the claimant in the marked or extreme
categories for every area of psychological function. This includes even in matters
of personal care or appearance (Exhibit 15F/2), which is inconsistent with all the
other evidence. I do not find Dr. Burkhart’s conclusions to be consistent with the
remaining evidence. The claimant would have to be incapable of caring for her own
basic needs or ever leaving the house on her own, much less working part time and
testifying without assistance at her hearing, for her to be as impaired as this
A more accurate assessment of the claimant’s psychological status is found
in the State consultative evaluator’s report of June 2008 (Exhibits 8F; 9F). These
findings are incorporated into this decision and reflected in the residual functional
capacity, where the marked impairment in concentration, persistence and pace
supports a capacity for simple work, routinely performed, in a low stress
While the ALJ found that Dr. Burkhart’s opinions were inconsistent with all of the
other evidence, his decision does not cite medical evidence from other treaters. Rather the ALJ
relied on a Mental Residual Functional Capacity (RFC) Assessment and a Psychiatric Review
Technique Form (PRTF) prepared by a non-examining agency psychologist, John Gallagher, Ed.D.,
on June 25, 2008 (AR 385-402). Dr. Gallagher’s mental RFC did not include a narrative functional
capacity assessment (as required by the form) but simply referred to the PRTF (AR 387), which in
turn cited Dr. Burkhart’s report of July 2007. It appears that the last two sentences of the
“consultant’s notes” on the PRTF are intended to be the narrative functional capacity assessment:
She is limited to work that does not involve rapid visual scanning and does not
involve a good deal of verbal memory. Otherwise she is able to follow simple
instructions, respond to supervision, adjust to routine changes and make simple
decisions and judgments.
Based on this record, the ALJ has not articulated good reasons for rejecting the
opinions of plaintiff’s treating psychologist, Dr. Burkhart. See Wilson, 378 F.3d at 545. The ALJ
did not explain medical evidence from other treaters which was inconsistent with Dr. Burkhart’s
opinions. In addition, while the ALJ stated that he found Dr. Gallagher’s conclusions were “more
accurate,” the ALJ did not address Gallagher’s restriction that plaintiff engage in “work that does
not involve rapid visual scanning and does not involve a good deal of verbal memory.” These
restrictions referred to by Dr. Gallagher are consistent with Dr. Burkhart’s opinion that plaintiff’s
poor processing speed does not allow her to make rapid judgments and scan multiple stimuli at once,
and that plaintiff remembers best with pictures showing instructions rather than verbal instructions.
Accordingly, this matter will be reversed and remanded pursuant to sentence four of 42 U.S.C. §
405(g). On remand, the Commissioner should re-evaluate Dr. Burkhart’s opinions.
The ALJ’s decision is not supported by substantial evidence. Accordingly, the
Commissioner’s decision will be reversed and remanded pursuant to sentence four of 42 U.S.C. §
405(g). On remand, the Commissioner should re-evaluate Dr. Burkhart’s opinions. A judgment
consistent with this opinion shall be issued forthwith.
Dated: September 20, 2013
/s/ Hugh W. Brenneman, Jr.
HUGH W. BRENNEMAN, JR.
United States Magistrate Judge
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