Nelson v. Commissioner of Social Security
Filing
26
OPINION ; signed by Magistrate Judge Phillip J. Green (Green, Phillip)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
)
LISA NELSON,
)
)
Plaintiff,
)
)
v.
)
)
COMMISSIONER OF
)
SOCIAL SECURITY,
)
)
Defendant.
)
____________________________________)
Case No. 1:12-cv-1125
Honorable Phillip J. Green
OPINION
This is a social security action brought under 42 U.S.C. § 405(g), seeking judicial
review of a final decision of the Commissioner of Social Security denying plaintiff’s
claim for disability insurance benefits (DIB). On March 4, 2009, plaintiff filed her
application for benefits, alleging a July 30, 2006, onset of disability. (Page ID 948-54).
Her claim was denied on initial review. (Page ID 897-900). On May 20, 2011, plaintiff
received a hearing before an ALJ, at which she was represented by counsel. (Page ID
816-70). On August 9, 2011, the ALJ issued a decision finding that plaintiff was not
entitled to DIB benefits or a period of disability. (Op., Page ID 798-807). On August
28, 2012, the Appeals Council denied review (Page ID 789-791), and the ALJ’s decision
became the Commissioner’s final decision.
Plaintiff filed a 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 # 19).
Plaintiff asks the Court to overturn the Commissioner’s decision on the following
grounds:
1.
The ALJ “failed to give controlling weight” to the opinions of
Doctors Gregory Stempky, D.O., Alexander Franko III, M.D.,
Alejandro Nakahodo M.D., and Susan Hunt, LMSW “with whom
the Claimant was treated collectively for over five years.”
2.
The ALJ “misinterpreted the records of treating psychologist
Walter Parmelee, Ed.D.”
3.
The ALJ “misapplied the law through failure to follow Social
Security Rules/regulations, and disregarded the Court’s holding in
a precedential case.”
(Plf. Brief at 2, docket # 18, Page ID 1490). The Commissioner’s decision will be
affirmed.
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
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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 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, 710 F.3d 365, 374 (6th Cir. 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).
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Discussion
The ALJ found that plaintiff met the disability insured requirement of the Social
Security Act from July 30, 2006, through the date of the ALJ’s decision. (Op. at 3, Page
ID 800). Plaintiff had not engaged in substantial gainful activity on or after July 30,
2006.1
(Id.).
Plaintiff had the following severe impairments:
“irritable bowel
syndrome, major depressive disorder, and generalized anxiety disorder.” (Id. at 4, Page
ID 801). Plaintiff did not have an impairment or combination of impairments which
met or equaled the requirements of the listing of impairments. (Id.). 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 light
work as defined in 20 CFR 404.1567(b) with the following limitations:
she cannot lift, carry, push and/or pull more than 20 pounds occasionally
and 10 pounds frequently; stand and/or walk for more than a total of six
hours in an eight-hour workday; sit for more than a total of six hours in
an eight-hour workday; or concentrate to perform more than simple,
routine job tasks.
(Op. at 5, Page ID 802). The ALJ found that plaintiff’s testimony regarding her
subjective complaints was not fully credible. (Id. at 5-8, Page ID 802-05). Plaintiff was
unable to perform any past relevant work. (Id. at 9, Page ID 806). She was 38 years
old as of her alleged onset of disability and 43 years old as of the date of the ALJ’s
decision. Thus, plaintiff was classified as a younger individual at all times relevant to
The ALJ considered the work that plaintiff performed as a nurse from
September 1, 2008, to December 1, 2008, to be an unsuccessful work attempt. (Op. at
4, Page ID 801).
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her claim for DIB benefits. (Id.). Plaintiff has at least a high school education and is
able to communicate in English. (Id.). The ALJ found that the transferability of job
skills was not material to the determination of disability. (Id.).
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 19,700
jobs in Michigan that the hypothetical person would be capable of performing. (Page
ID 862-64). The ALJ found that this constituted a significant number of jobs. Using
Rule 202.21 of the Medical-Vocational Guidelines as a framework, the ALJ held that
plaintiff was not entitled to DIB benefits or a period of disability.2 (Op. at 9-10, Page
ID 806-07).
1.
Plaintiff argues that the ALJ committed reversible error when he failed to give
controlling weight to the opinions of doctors Gregory Stempky, D.O., Alexander Franko
III, M.D., Alejandro Nakahodo M.D., and Susan Hunt, LMSW “with whom the
Claimant has treated with collectively for over five years.” (Plf. Brief at 2, Page ID
The ALJ found that plaintiff was not entitled to a period of disability because
she “applied for benefits on March 4, 2009, which was approximately 19 months after
her period of disability ended.” (Op. at 1, Page ID 798). “The regulations provide that
a claimant must file an application for a period of disability while disabled, or no later
than 12 months after the month in which the period of disability ends.” (Id.) (citing 20
C.F.R. § 404.621). Plaintiff did not satisfy the requirements of the exception found in
20 C.F.R. § 404.322. (Op. at 1, Page ID 798). “Therefore, her application for benefits
was not filed within 12 months after her period of disability ended and therefore, no
period of disability c[ould] be established.” (Id.). On Appeal, plaintiff does not claim
an entitlement to a period of disability. She has not shown any error in the ALJ’s
application of the standards set forth in sections 404.322 and 404.621.
2
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1490). There is no “collective” treating physician rule. Plaintiff’s argument that the
ALJ should have treated social worker Hunt’s opinions as if they were the opinions of
an acceptable medical source is contrary to applicable law.
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); 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); 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.”); accord
Gentry v. Commissioner, 741 F.3d 708 (6th Cir. 2014).
Likewise, “no special
significance”3 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); 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
“We will not give any special significance to the source of an opinion on issues
reserved to the Commissioner described in paragraphs (d)(1) and (d)(2) of this section.”
20 C.F.R. § 404.1527(d)(3).
3
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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)); see
Gayheart v. Commissioner, 710 F.3d 365, 376 (6th Cir. 2013) (A treating physician’s
medical opinion is entitled to controlling weight where “two conditions are met: (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.’” (citing 20 C.F.R. § 404.1527(c)(2)). The 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 selfdescribed 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,
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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); 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, 710 F.3d at 376.
A.
Doctors Nakahodo and Franko
On July 23, 2004, Dr. Nakahodo conducted a flexible sigmoidoscopy and
attempted to perform a colonoscopy. He offered a postoperative diagnosis of irritable
bowel syndrome. (Page ID 1293). Plaintiff has not identified any opinion expressed
by Dr. Nakahodo which failed to receive appropriate weight.
Dr. Franko was plaintiff’s former primary care physician. (Page ID 804). On
November 2, 2005, Dr. Franko performed a new patient evaluation. (Page ID 1138).
In January 2006, he offered a diagnosis of irritable bowel syndrome, depression, and
tobacco abuse. (Id.). On April 10, 2006, Dr. Franko wrote that plaintiff had “a lot of
social upheaval in her life right now. I think that is the etiology of her bowel
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dysfunction.” (Page ID 1137). Plaintiff’s gallbladder was surgically removed without
complication on July 11, 2006. (Page ID 1098-1101, 1134, 1220-21). On July 19, 2006,
Brian Gluck, D.O., noted that plaintiff had no nausea and was feeling great. He
indicated that plaintiff had a history of “IBS like symptoms,” but was not experiencing
any of those symptoms “at all” after her gallbladder surgery. (Page ID 1097). During
the period from August 2006, through June 2007, Dr. Franko treated plaintiff for
irritable bowel syndrome, obesity, anxiety and depression. (Page ID 1111-26). On May
10, 2007, Dr. Franko indicated that plaintiff’s anxiety had improved and that her
depressive disorder was stable. Among other things, Dr. Franko noted that plaintiff
enjoyed daily activities, was not forgetful, did not experience memory loss, and had
normal insight and judgment. (Page ID 1124). In July 2007, Dr. Franko completed a
series of insurance forms asking him to evaluate plaintiff’s mental status. He
indicated that he would defer to the opinions of plaintiff’s treating psychologist, Walter
Parmelee. (Page ID 1133). Plaintiff has not identified any medical opinion expressed
by Dr. Franko which failed to receive appropriate weight.
B.
Dr. Stempky
Plaintiff argues that the ALJ failed to give appropriate weight to Dr. Stempky’s
responses to an Irritable Bowel Residual Functional Capacity Questionnaire. (Plf.
Brief at 2-3, Page ID 1490-91). The earliest progress notes from Dr. Stempky are dated
February 1, 2008. Plaintiff complained of a cold and bronchitis. (Page ID 1161). On
examination, Dr. Stempky’s indicated that plaintiff was “normal” in all physical
categories. (Page ID 1162). On March 5, 2008, plaintiff reported that she occasionally
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experienced nausea from her irritable bowel syndrome and was asking for a refill of her
Zofran prescription. Plaintiff related that her psychiatric symptoms were under
control. Dr. Stempky renewed plaintiff’s prescriptions for Seroquel, Ativan, and
Zofran. Dr. Stempky “strongly encouraged” plaintiff to quit smoking cigarettes. (Page
ID 1161).
On July 9, 2008, plaintiff reported that she was trying to quit smoking and was
not taking any medication for her bipolar disorder.
She complained of nausea,
vomiting, depression and anxiety and was seeking refills on her prescriptions for
Ativan and Zofran. Dr. Stempky found that plaintiff was not in any acute distress and
answered questions appropriately. Dr. Stempky’s progress notes indicate that they
talked about plaintiff’s diabetes and that he renewed plaintiff’s Ativan prescription.
(Page ID 1159).
On October 14, 2008, plaintiff returned to Dr. Stempky for a checkup. She
reported that she was “doing pretty well.” (Page ID 1158). She was working nights at
Harbor Hospice. She was having some trouble sleeping because she was working
nights. Stempky noted as follows: “She is still mourning the loss of her son, but she
is not suicidal and since she has stopped taking Celexa, she does not feel that she is
any more depressed than what she was. MEDS: Ativan, she is taking about three per
day, and she takes Bentyl for her irritable bowel syndrome. She is prescribed Buspar
and Celexa but has not been taking them. She takes Flexeril p.r.n. She has been using
the Seroquel and Risperdal and Zofran p.r.n. She does admit she is still smoking.”
(Id.). Plaintiff was not in any acute distress and she gave appropriate responses to Dr.
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Stempky’s questions. He strongly encouraged plaintiff to quit smoking, increased her
Seroquel prescription to help her sleep, renewed her Risperdal and Zofran
prescriptions, and added a prescription for Temazepam. (Id.).
On December 8, 2008, plaintiff reported that she was experiencing a great deal
of stress related to the upcoming anniversary of her son’s death. She complained of
nausea, vomiting, diarrhea, and depression. Plaintiff reported that she did not check
her blood sugars on a regular basis. Dr. Stempky gave plaintiff prescriptions for
Celexa, AcipHex for her stomach issues and renewed her prescriptions for Zofran and
Temazepam. (Page ID 1156). On December 19, 2008, plaintiff “denied any significant
problems.” She was not in any acute distress. Because plaintiff complained of nausea
and vomiting, Dr. Stempky referred plaintiff to Dr. Powers. (Page ID 1157).
On January 20, 2009, plaintiff reported to Dr. Stempky that the Celexa and
Seroquel prescriptions helped. Dr. Powers reported that plaintiff “just has irritable
bowel syndrome and cyclical vomiting disorder.” (Page ID 1155). Dr. Powers did not
think that a scope was necessary and expressed a preference for continuing chronic PPI
therapy.” Plaintiff told Dr. Stempky that she was doing a little better, but had recently
lost her job. She “was wondering about applying for disability because of her disk
disorder.” (Id.). Dr. Stempky concluded this progress note as follows: “I am going to
refer Lisa to Bevin to discuss possibly getting social security benefits and we will see
her back in three months for a recheck.” (Id.).
On April 20, 2009, plaintiff returned to Dr. Stempky for a checkup. Plaintiff
reported that she experienced nausea and vomiting about “twice in a two week period.”
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(Page ID 1154). She denied any chest pain or shortness of breath. She continued to
smoke cigarettes against medical advice. Plaintiff had good distal pulses. Plaintiff
reported that she had been taking her medications and that they did keep her mood
stabilized. (Id.). Dr. Stempky renewed plaintiff’s Risperdal prescription and once
again strongly encouraged her to stop smoking. (Page ID 1154).
On July 28, 2009, plaintiff reported that she continued to smoke about a pack
of cigarettes per day. She denied any chest pain or shortness of breath. She related
that she had less trouble with diarrhea since she began increasing the amount of
Vicodin she was taking. She reported that she was doing okay, but was a little bit
more depressed than usual. (Page ID 1258). On August 7, 2009, Dr. Stempky
prescribed Synthroid for hypothyroidism. (Page ID 1257). On October 13, 2009, Dr.
Stempky increased plaintiff’s Synthroid to 100 mg. and renewed her Vicodin and
Flexeril because she reported experiencing “a little bit of back pain.” (Page ID 1257).
On November 2, 2009, plaintiff returned to Dr. Stempky for a checkup on her
diabetes. Plaintiff reported that she was doing okay. She denied any headaches,
blurry vision, chest pain or shortness of breath. Plaintiff reported that she was
experiencing nausea and diarrhea. She continued to smoke a pack of cigarettes per
day. Dr. Stempky found that plaintiff was not in any acute distress. Her lungs were
clear. Dr. Stempky indicated that he was going to start plaintiff on “Glucophage 500
mg with her biggest meal a day.” (Page ID 1358).
On December 16, 2009, plaintiff reported that a day earlier she had experienced
extremely high blood sugars. She had been directed to go to the emergency room and
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reported that she slipped an fell before going to the emergency room. She complained
of lower back pain. Dr. Stempky gave plaintiff a prescription for Norco for pain relief.
In addition, he offered a diagnosis of uncontrolled diabetes and he adjusted her
medications. Plaintiff gave Dr. Stempky forms to fill out in support of her disability
claim. (Page ID 1356). On December 21, 2009, Dr. Stempky found that plaintiff’s
blood sugars had improved, but remained high. (Page ID 1355). On December 30,
2009, plaintiff reported another fall, this time having slipped on ice on Christmas Eve.
She continued to report cyclical vomiting “every once in a while.” (Page ID 1355).
On December 30, 2009, Dr. Stempky completed an “Irritable Bowel Syndrome
Questionnaire” for plaintiff’s attorney. (Page ID 1277-80). Among other things,
Stempky marked boxes on this form asserting that plaintiff was unable to work and
that her symptoms would constantly interfere with the concentration and attention
needed to perform even simple work tasks. (Id.).
On January 11, 2010, plaintiff related that her pain was “just about gone.”
(Page ID 1352). Her blood sugars were “running very well” and she was tolerating her
medication “without any increase in her nausea.” (Id.). On February 4, 2010, plaintiff
indicated that she was experiencing fewer problems with irritable bowel symptoms.
(Page ID 1351). On March 4, 2010, Dr. Stempky again encouraged plaintiff to quit
smoking. (Page ID 1351).
On March 29, 2010, plaintiff reported that she felt better after taking someone
else’s prescription medication. She asked Dr. Stempky to give her a prescription for
Adderall: “Lisa comes into the clinic today following up on her bipolar disorder as well
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as she wants to try Adderall. She reports that she has had trouble her whole life with
focusing. Her daughter is on Adderall and she tried one of her daughter’s Adderall and
she actually felt much better. She was able to focus. She reports that she was feeling
really good on Abilify.” Dr. Stempky gave plaintiff a prescription for “Adderall 20 mg.
twice a day.” (Page ID 1349).
On April 19, 2010, plaintiff appeared at Dr. Stempky’s office to have him fill out
forms for her disability. Plaintiff reported that she was “feeling very good” while
taking a combination of Abilify and Adderall. She continued to smoke a pack of
cigarettes per day. Her strength was 5/5 in the upper and lower extremities and equal
bilaterally. She walked with a normal gait. (Page ID 1348).
On August 9, 2010, Dr. Stempky indicated that after taking plaintiff off Seroquel
and putting her back on Abilify six months earlier, plaintiff had been “doing well
mentally and she ha[d] lost 50 pounds.” (Page ID 1340).
On February 22, 2011, Dr. Stempky signed a one-sentence letter which stated
as follows:
“I have reviewed the Irritable Bowel Residual Functional Capacity
Questionnaire dated December 30, 2009, and believe Ms. Nelson’s limitations remain
the same.” (Page ID 1411).
The ALJ carefully considered Dr. Stempky’s opinions and found that the
limitations that he suggested were not well supported by objective evidence and were
inconsistent with the record as a whole, including his own treatment notes:
The record indicates that the claimant initiated treatment for her general
medical concerns with G. Stempky, D.O. in February 2008. He continued
to prescribe medication therapy for her IBS, depression, and anxiety; he
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also monitored her diabetes and advised weight reduction and cessation
of tobacco use. When examined in mid-October 2008, the claimant
reported that while she was still mourning the death of her son the
previous December, she had ceased her use of the antidepressant Celexa,
as well as her antianxiety agent Buspar. He noted her report that
“overall, she is doing pretty well.” Dr. Stempky noted her report of
increased nausea and vomiting when examined in early December 2008,
which she attributed to increased stress due to the approaching
anniversary of her son’s death. He noted her denial of “any significant
problems” at her next exam in late December 2008. She had re-initiated
her use of Celexa and subsequently reported it to be helpful. When
examined in late April 2009, she reported that she was typically
experiencing nausea and vomiting twice within a two-week period at this
point in time. The medication therapy for the claimant’s IBS and
emotional symptoms continues to be monitored and revised as necessary
(Exhibits 5f, 7f, 12f, 17f, and 23f).
The undersigned notes, with interest, that Dr. Stempky’s treatment notes
contain no reports from the claimant of experiencing any IBS symptoms
after April 2009 until December 2009 (Exhibits 5f and 17f/p. 18). His
treatment notes throughout 2010 repeatedly stated that the claimant is
“doing well overall” with regard to her IBS (Exhibit 17f). There is little
evidence to indicate that she required frequent emergent symptoms for
IBS symptoms unresponsive to her medication therapy.
Although the evidence of record indicates the claimant has been assessed
to have depressive and anxiety disorders, the overall record is not
reflective of emotional symptoms experienced by the claimant to a
debilitating degree, as would be suggested by a history of repeated
hospitalizations for mental health treatment.
***
The undersigned accords little weight to the opinion offered in December
2009 from Dr. Stempky regarding the claimant’s physical limitations as
such appears to be based upon the claimant’s subjective complaints
(Exhibit 13f). The overall evidence of record clearly indicates that the
claimant’s IBS symptoms fluctuate and have not been experienced at the
frequency or severity reflected within Dr. Stempky’s assessment on a
regular and consistent basis.
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(Op. at 7-8, Page ID 804-05). The Court finds no violation of the treating physician
rule. The underlying progress notes did not support the level of restriction Dr.
Stempky suggested in his questionnaire responses. The Sixth Circuit has consistently
held that inconsistencies between proffered restrictions and the underlying treatment
records are good reasons for discounting a treating source’s opinions. See e.g., Hill v.
Commissioner, 560 F. App’x 547, 549-50 (6th Cir. 2014); Fry v. Commissioner, 476 F.
App’x 73 (6th Cir. 2012).
C.
Psychologist Parmelee
Plaintiff argues that the ALJ appears to have “misinterpreted” Dr. Parmelee’s
records because he failed to list the exact number of times that plaintiff saw Parmelee
and failed to note in his opinion that in plaintiff’s last visit in February 2008, Dr.
Parmelee “indicated that the Claimant suffered from being anxious, on edge, sad,
depressed, fatigued, poor appetite, sleep disturbance, and upset stomach.” (Plf. Brief
at 5-6, Page ID 1493-94). Plaintiff saw Dr. Parmelee during the period from September
5, 2006, through February 27, 2008. (Page ID A.R. 503-28). The ALJ was not required
to reproduce every progress note or list the exact number of visits. Further, although
February 2008 progress note contains a list of plaintiff’s subjective complaints, the
point that Dr. Parmelee emphasized in the progress note was that plaintiff’s condition
was improving and that she was looking forward to getting back to work:
Lisa is still having some bad days where she just wants to sleep and avoid
but they are less frequent and she gets back on track the next day. She
has more focus now. She did get the application out for her old position
at the hospital and has done a follow up call on it. She is looking forward
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to getting back to work at least part time. She feels that the structure
and purpose will be good for her.
(Page ID 1303).
A review of the treatment records confirms that the ALJ did not “misinterpret”
Dr. Parmelee’s records. On September 5, 2006, plaintiff told Dr. Parmelee that she had
recently had her gallbladder removed and felt very ill in the mornings. She reported
that she had been divorced for two years and that her ex-husband had moved out of the
country to avoid paying child support. Plaintiff indicated that she would check with Dr.
Franko about a possible stress/medical leave from her job. (Page ID 1327). On
September 13, 2006, plaintiff reported to Psychologist Parmelee that she was on “stress
leave” from her job. She continued to complain of “feeling anxious, on edge, depressed
at times, fatigued, poor appetite, [] times of being very nervous, withdrawn, sleep is
disturbed, increased need for sleep, upset stomach.” (Page ID 1327). Plaintiff reported
that she was relieved to be on leave from work but at the same time feeling stress
because of it. She indicated that she was a single parent who was busy trying to keep
things going with her kids’ schedules. She reported that the Ativan she was taking
helped with anxiety, but stated that she was feeling pressure from her doctor and
boyfriend not to take it. (Page ID 1326). In October 2006, plaintiff stated that she felt
guilty about taking a trip to Maine with her boyfriend and leaving the children with
her mother. (Page ID 1326). In November 2006, plaintiff reported feeling guilty about
not going back to work. She indicated that she traveled to Grand Rapids, attended a
Bob Seger concert, stayed overnight, and had a good time. (Page ID 1324-25).
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On January 10, 2007, plaintiff reported stress related to the foreclosure of her
home. (Page ID 1322). On January 29, 2007, Psychologist Parmelee completed a
questionnaire for her employer’s disability insurance provider and he indicated that
plaintiff was “currently unable to work” and that the restrictions he suggested were
“temporary.” (Page ID 1317-18).
In early March 2007, plaintiff reported that she had broken up with her
boyfriend and that she felt less anxious now that he was out of her life. (Page ID
1313). On March 28, 2007, plaintiff reported that her application for long-term
disability benefits through her employer had been approved.
(Page ID 1312).
Plaintiff’s boyfriend returned in March and stayed until June. (Page ID 1309-11).
In June 2007, plaintiff reported stress related because she had to go to court
because she had been accused of shoplifting. (Page ID 1310). In July 2007, she
received papers notifying her to vacate the house by the end of the month. (Page ID
1309). On July 16, 2007, Psychologist Parmelee sent a letter to the insurer offering his
opinion that plaintiff would be unable to return to her “former fulltime position
because of continued symptoms of anxiety and depression.” Psychologist Parmelee
encouraged plaintiff to begin the process of getting back to work. He recommended
that plaintiff “look for a different work environment.” (Page ID 1307-08).
In August 2007, plaintiff moved back in with her parents. (Page ID 1306). In
November 2007, she pleaded guilty to shoplifting. She reported that he had been
placed on probation for six months and was required to take a six-week class at MCC.
(Page ID 1305). Plaintiff’s son was killed in a December 2007 car accident. (Page ID
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830, 1305). Plaintiff struggled the next few months dealing with the loss of her son.
(Page ID 1304). In February 2008, plaintiff reported that she was going to fill out an
application for her old job, that she had an appointment with human resources, and
was ready to get back to work part time at least. (Page ID 1303). Progress notes from
the next appointment indicate that plaintiff’s employer was receptive to having
plaintiff come back to work on a part-time schedule. (Page ID 1303). The last progress
notes from Psychologist Parmelee’s office are dated March 26, 2008. The entry states
that plaintiff canceled her appointment. (Page ID 1302).
Plaintiff argues that the ALJ should have given greater weight to the RFC
restrictions that Psychologist Parmelee suggested in his January 2007 questionnaire
responses. (Plf. Brief at 6, Page ID 1494) (citing AR 518-521, found at Page ID 131720). The ALJ stated that plaintiff would have been found disabled during this period
in 2007 if she had not waited until March 4, 2009, to file her application for benefits.
(Op. at 1, Page ID 798).
“[W]hile the claimant may have had more significant
limitations from July 2006 through July 2007, this period of time is too far removed
from her application date in March 2009.” (Id. at 8, Page ID 805). The Court finds no
error.
D.
Ms. Hunt
The treating physician rule did not apply to the opinions of Ms. Hunt because
social workers are not “acceptable medical sources.” See 20 C.F.R. §§ 404.1513(a),
(d)(3); see also Payne v. Commissioner, 402 F. App’x 109, 119 (6th Cir. 2010); Geiner v.
Astrue, 298 F. App’x 105, 108 (2d Cir. 2008); Hayes v. Commissioner, No. 1:09-cv-1107,
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2011 WL 2633945, at * 6 (W.D. Mich. June 15, 2011). No opinion expressed by Ms.
Hunt was entitled to controlling weight. 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 * 2 (SSA Aug. 9, 2006)). The opinions of social workers fall within the
category of information provided by “other sources.” Id. at * 2; see 20 C.F.R. §
404.1513(d)(3). The social security regulations require that information from other
sources be “considered.” 2006 WL 2329939, at * 1, 4 (citing 20 C.F.R. §§ 404.1513).
This is not a demanding standard. It was easily met here. (Op. at 7-8, Page ID 80405).
3.
Plaintiff’s third claim of error is that the ALJ “misapplied the law through
failure to follow Social Security Rules/regulations, and disregarded the Court’s holding
in a precedential case.” (Plf. Brief at 2, Page ID 1490). The case that plaintiff cites is
Lashley v. Secretary of Health & Human Servs., 708 F.2d 1048 (6th Cir. 1983). (Plf.
Brief at 10, Page ID 1498).
Plaintiff’s argument is more readily quoted than
summarized:
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In Lashley, the Court held it is the Commissioner’s duty to develop the
record fully and provide a full and fair hearing for the Claimant. The
Commissioner’s acceptance of one non-acceptable medical source opinion
while completely disregarding the opinions of another indicates a biased
opinion that prevents the claimant from receiving a full and fair hearing.
In reality, L.M.S.W. Hunt’s certifications represent proof of acceptability.”
(Plf. Brief at 10, Page ID 1498). The above-quoted argument lacks merit. In Lashley,
the claimant, Jack Lashley, appeared for his hearing “without the assistance of an
attorney.” 708 F.2d at 1050. He had a fifth-grade education and was suffering from
the residuals of several strokes. Id.
“Lashley possessed limited intelligence, was
inarticulate, and appeared to be easily confused.” Id. at 1052. The ALJ’s questions
were “superficial” and entire hearing transcript was only 11 pages long. Id. Under
those circumstances, the Sixth Circuit held that the ALJ fell short of satisfying his
“special duty” to the pro se litigant to develop the record. Id. at 1052-53. The ALJ’s
special duty to pro se parties to develop the record does not extend to plaintiff, because
she was represented by an attorney at the hearing. See Smith v. Commissioner, 473
F. App’x 443, 445 (6th Cir. 2012); Kelly v. Commissioner, 314 F. App’x 827, 831 n. 1
(6th Cir. 2009); see also Lang v. Commissioner, No. 1:14-cv-651, 2015 WL 3767785, at
* 3 (W.D. Mich. June 17, 2015).
Further, the ALJ is responsible for weighing
conflicting evidence, not the Court. See DeLong v. Commissioner, 748 F.3d 723, 726
(6th Cir. 2014); Buxton, 246 F.3d at 775; see also White v. Commissioner, 572 F.3d 272,
284 (6th Cir. 2009).
The record contains no evidence that the ALJ was “biased” against plaintiff.
Plaintiff presents nothing approaching the convincing evidence of actual bias necessary
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to overcome the presumption that the ALJ was impartial. The ALJ is presumed to
have exercised his powers with honesty and integrity, and the plaintiff has the burden
of overcoming the presumption of impartiality “with convincing evidence that a risk of
actual bias or prejudgment is present.” Collier v. Commissioner, 108 F. App’x 358, 364
(6th Cir. 2004) (citing Schweiker v. McClure, 456 U.S. 188, 196 (1982), and Navistar
Int’l Transp. Corp v. EPA, 921 F.2d 1339, 1360 (6th Cir. 1991)); see Bailey v.
Commissioner, 413 F. App’x 853, 856 (6th Cir. 2011) (“We presume that judicial and
quasijudicial officers, including ALJs, carry out their duties fairly and impartially.”).
Plaintiff has the burden of providing “convincing evidence that a risk of actual bias or
prejudgment is present.” See Bailey, 413 F. App’x at 856. For the alleged bias to be
disqualifying, it must “stem from an extrajudicial source and result in an opinion on
the merits on some basis other than what the judge learned from his participation in
the case.” United States v. Grinnell Corp., 384 U.S. 563, 583 (1966); see Miller v.
Barnhart, 211 F. App’x 303, 305 n.1 (5th Cir. 2006). “[A]ny alleged prejudice on the
part of the decisionmaker must be evident from the record and cannot be based on
speculation or inference.” Carrelli v. Commissioner, 390 F. App’x 429, 436-37 (6th Cir.
2010); see Perschka v. Commissioner, 411 F. App’x 781, 788 (6th Cir. 2010) (“An
adverse ruling alone is not enough to support a finding of bias.”). “[E]xpressions of
impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of
what imperfect men and women . . . sometimes display” are insufficient to establish
bias. Liteky v. United States, 510 U.S. 540, 555-56 (1994).
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The Court finds no
evidence that the ALJ was biased against plaintiff, much less the convincing evidence
of actual bias that is necessary to overcome the presumption of impartiality.
Conclusion
For the reasons set forth herein, a judgment will be entered affirming the
Commissioner’s decision.
Dated: July 29, 2015
/s/ Phillip J. Green
United States Magistrate Judge
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