Germay v. Commissioner of Social Security

Filing 19

OPINION; signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CATHY GERMAY,
Plaintiff,
v.

Case No. 1:12-cv-1157
Hon. Hugh W. Brenneman, Jr.

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION
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 child’s insurance benefits1 and supplemental security income (SSI).
Plaintiff was born on July 19, 1982 (AR 100).2 She alleged a disability onset date of
July 18, 2003 (AR 238). Plaintiff graduated from college with a degree in fine arts (painting) and

had previous employment as a painting instructor, a self-employed artist and a fast food worker (AR
135, 146, 698-701). Plaintiff identified her disabling conditions as: hereditary hemorrhagic

1

See 20 C.F.R.§ 404.350(a)(5) (“You are entitled to child’s benefits on the earnings record of an
insured person who is entitled to old-age or disability benefits or who has died if . . .(5) . . . you are 18
years old or older and have a disability that began before you became 22 years old[.]”)
2

Citations to the administrative record will be referenced as (AR “page #”).

telangiectasia (HHT)3; left lung wedge resection for with arterial venous malformations (AVM’s);
chronic pain due to surgery; depression; schizophrenia; and nerve damage (AR 134).
After an administrative hearing held on November 25, 2008 (AR 693-753), the
administrative law judge (ALJ) reviewed plaintiff’s claim de novo and entered a decision denying
benefits on February 5, 2009 (AR 31-38). The Appeals Council remanded the case for additional
review and fact finding (AR 40-42). A second hearing was held on August 17, 2010 (AR 754-80).
The ALJ reviewed plaintiff’s claim de novo and entered a decision denying benefits on September
21, 2010 (AR 18-26). This decision, which was later approved by the Appeals Council, has become
the final decision of the Commissioner and is now before the Court for review.
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).

3

“Telangiectasia” is defined as “permanent dilation of preexisting blood vessels (capillaries,
arterioles, venules), creating small focal red lesions, usually in the skin or mucous membranes.” Dorland’s
Illustrated Medical Dictionary (28th Ed.) at p. 1664. “Hereditary hemorrhagic telangiectasia” is defined as
“an autosomal dominant vascular anomaly characterized by the presence of multiple small telangiectases of
the skin, mucous membranes, gastrointestinal tract, and other organs, associated with recurrent episodes of
bleeding from affected sites and gross or occult melena.” Id.

2

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. § 416.905; 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).

3

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). “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 had not attained the age of 22 as of the alleged disability onset date of July 18, 2003, and
that she has not engaged in substantial gainful activity since that date (AR 20). Second, the ALJ
found that plaintiff had severe impairments of: hereditary hemorrhagic telangiectasia, with arterial
venous malformations (AVM’s) and resultant epistaxis4; and anemia (AR 20). 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
4

“Epistaxis” is defined as “nosebleed; hemorrhage from the nose.” Dorland’s Illustrated Medical
Dictionary at p. 569.

4

22). Specifically, the ALJ found that there is no specific listing for evaluating HHT with venous
malformations, and plaintiff did not meet the requirements of Listing 7.02 (chronic anemia) (AR 22).
The ALJ decided at the fourth step that plaintiff “has the residual functional capacity
to perform work limited to lifting up to 20 pounds occasionally and 10 pounds frequently; sitting up
to 6 hours and standing/walking up to 6 hours in an 8-hour workday; and only occasional overhead
work with the left upper extremity” (AR 22). The ALJ also found that plaintiff was unable to
perform any past relevant work (AR 24).
At the fifth step, the ALJ determined that plaintiff could perform a range of light work
in the national economy (AR 25). Representative occupations in the regional economy (Michigan)
included 40,000 unskilled, light clerical jobs, including general office clerk, file clerk, photocopy
machine attendant, or medical records scanner (AR 25). Accordingly, the ALJ determined (1) that
based on her application for child’s insurance benefits, plaintiff was not disabled as defined in the
Social Security Act prior to July 18, 2004, the date she attained age 22, and (2) that based on her
application for SSI, plaintiff was not disabled as defined in the Social Security Act from July 18,
2003 (the alleged onset date) through September 21, 2010 (the date of the decision) (AR 25-26).

III. ANALYSIS
Plaintiff raised three issues (with sub-issues) on appeal:
A.

The ALJ’s decision was not based on substantial evidence
because he failed to give proper weight to the findings and
opinion plaintiff’s physicians as required by 20 C.F.R. §
416.927(d) and applicable case law.
Plaintiff contends that the ALJ failed to give proper weight to the opinions of her

treating physicians. 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.
5

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.

See

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
Cir. 1992). 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, 25
F.3d 284 at 287.

6

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) (“[w]e will always give good reasons in our notice of determination or
decision for the weight we give your treating source’s opinion”).
1.

The ALJ did not address and/or give proper
weight to Dr. McKay’s statements.

Gianna McKay, M.D., provided a statement regarding plaintiff’s condition on
December 22, 2008 (AR 634-39). Dr. McKay treated plaintiff since 2007 (with the doctor’s office
having treated plaintiff since 1994), and diagnosed her with HHT, post thoracotomy syndrome,
anemia, frequent epistaxis, migraine headaches, and allergies (AR 634). The doctor identified the
vocationally relevant major symptoms as follows “[t]he primary symptom would be the left upper
chest pain that radiates into her arm that is worsened by upright activity including walking and
sitting and fatigue that is worsened by activity which is secondary to her anemia and medications”
(AR 634). Given plaintiff’s anemia, the side effects of her medications, and her “overall clinical
picture,” the doctor thought it was medically reasonable for plaintiff to take naps during the day (AR
634). Dr. McKay also thought plaintiff’s pain or other symptoms were sufficiently severe to
interfere with her attention and concentration, even if she was performing a simple, unskilled
sedentary job (AR 634-35). The interference would be frequent and over a sustained period of time
(AR 635). The doctor also opined: that plaintiff could walk about one block or 15 minutes at a time;
that she could sit for up to two hours and stand less than two hours in an eight-hour workday; that
she would need to take an unscheduled break about once an hour; that plaintiff could lift at most 10
pounds; that her neck movement (flexion, turning, looking up, or holding a static position) would
be restricted; that she would have less than frequent use of her upper extremities; that plaintiff’s
7

description having nosebleeds once or twice a day are consistent with her hemoglobin level; and,
that plaintiff’s reported pain in her upper left chest is consistent with post thoracotomy pain
syndrome (AR 635-37). However, the doctor could not “medically explain the radiation to her left
leg” (AR 618). Finally, Dr. McKay opined that plaintiff could not work an eight-hour workday with
normally scheduled breaks:
I think her pain is the first factor but the fact that she is on medications that can affect
her energy [sic] in addition to her anemia which also significantly contributes to her
inability to have that kind of attention or focus for an eight hour period.
(AR 638).
In reviewing the medical evidence, the ALJ summarized plaintiff’s treatment history
as follows. The ALJ found that “while there is evidence of deconditioning, there is no objective
evidence of a problem beyond anemia” (AR 23). Plaintiff had a history of pain, but when
discharged from a pain clinic in September 2006, she reported no pain with palpation (AR 23). A
University of Michigan Hospital doctor who had followed plaintiff’s underlying disease noted that
the pain was nicely controlled in January 2007 (AR 23, 593). In April 2007, Dr. McKay noted that
plaintiff was in no apparent distress on examination and recommended exercise (AR 23). Plaintiff’s
anemia increased in 2009, but at that time plaintiff admitted that she was not taking iron supplements
as prescribed (AR 23). By September 2009 plaintiff’s anemia improved with medication and her
pain was generally well-controlled (AR 23). In July 2010, a pain and rehabilitation specialist,
Gholamreza Shareghi, Ph.D., M.D., found that plaintiff’s upper extremities were normal (AR 23,
630).
The ALJ reviewed Dr. McKay’s 2008 opinion as follows:
As for the opinion evidence, claimant offered the December 2008 statement
of Dr. McKay, her primary care doctor (Exhibit 29F/26-30). While Dr. McKay is
8

not a specialist, she certainly would be familiar with claimant’s complaints and
general condition. The doctor concluded claimant had severe limitations in many
respects and could not work since 2003 (ibid, at 30). I would note, however, that
while opinions from treating physicians are to be carefully considered and may be
entitled to controlling weight on issues concerning the nature and severity of an
individual’s impairments, a conclusion regarding the issue of disability is reserved
to the Commissioner (Social Security Ruling 96-5p). In this instance, I assign little
weight to Dr. McKay’s opinion. Logically, it must be based on the underlying
diagnosis, combined with the subjective complaints, since even Dr. McKay notes
little objective evidence of a problem in her treatment notes. Yet, Dr. McKay
conceded that some of those subjective complaints are hard to explain medically
(Exhibit 29F/29), and she does not appear to give any credence or consideration to
the history of at least intermittent improvement with various treatment modalities.
She overlooks her own notes, which confirm that the pain is well-controlled with
medication. She does not address the improvement in the anemia with the current
treatment.
(AR 24).
However, as plaintiff pointed out, Dr. McKay updated her 2008 statement in 2010,
but the ALJ did not address the more recent statement. Plaintiff’s Brief at pp. 5, 12. Dr. McKay
made this statement on August 16, 2010 (the day before plaintiff’s hearing), but it was not
transcribed and signed by Dr. McKay until September 8, 2010 (AR 660-64). The statement was
faxed to the ALJ on September 14, 2010 and identified as in the medical record as Exhibit 35F (AR
659). Defendant acknowledges that Dr. McKay gave an updated assessment on August 16, 2010
and that the ALJ did not address it in his decision. Defendant’s Brief at pp. 9-10. Defendant takes
the position that Dr. McKay’s August 16, 2010 statement “merely reiterated her December 8, 2008
statement, which, as discussed above, the ALJ properly gave little weight to” and that the ALJ’s lack
of specific discussion of the August 16, 2010 statement was a harmless, de minimis procedural error
which could conceivably exist under Wilson. Id. at p. 10. See Wilson, 378 F.3d at 547 (while the
regulations require the ALJ to give good reasons for the weight assigned to a treating source’s
opinion, the Sixth Circuit observed “[t]hat is not to say that a violation of the procedural requirement
9

of § 1527(d)(2) could never constitute harmless error. We do not decide the question of whether a
de minimis violation may qualify as harmless error. For instance, if a treating source’s opinion is so
patently deficient that the Commissioner could not possibly credit it, a failure to observe §
1527(d)(2) may not warrant reversal”).
Here, it is undisputed that Dr. McKay is plaintiff’s primary care doctor. The Court
does not view Dr. McKay’s 2010 opinions so “patently deficient” as to avoid the procedural
requirements set forth in Wilson. Accordingly, this matter will be reversed and remanded pursuant
to sentence four of 42 U.S.C. § 405(g). On remand, the Commissioner should evaluate Dr. McKay’s
updated statement made on August 16, 2010 (AR 660-64).
2.

The ALJ did not consider Dr. Shareghi’s
statement.

At the hearing, plaintiff’s counsel wanted to send the ALJ additional opinion
evidence from Dr. Shareghi. The ALJ noted that he had records from Dr. Shareghi from as recent
as July 22, 2010, and told plaintiff’s counsel that he had “an obligation to read anything you send
me, and if you send it to me before I sign off on a decision, I’ll read it and consider it and put it into
the, into the decision” (AR 758). Plaintiff’s counsel sent the ALJ an unsigned copy of Dr.
Shareghi’s statement on September 17, 2010 (AR 665-69), but he was unable to send the signed
version until September 21, 2010, the same date the ALJ issued his decision. While it is possible
that the ALJ rejected Dr. Shareghi’s unsigned opinion on authenticity concerns, he did not address
that issue in his decision. However, since the ALJ received Dr. Shareghi’s signed opinion on the
same day as he issued he decision, and this matter is being remanded, there is no reason why the
ALJ cannot review that opinion on remand. Accordingly, on remand, the ALJ should evaluate Dr.
Shareghi’s September 21, 2010 opinion.
10

B.

The ALJ’s decision that plaintiff’s thoracic pain syndrome and
mental impairments do not constitute severe impairments is not
supported by substantial evidence.
Plaintiff contends that the ALJ erred by failing to find that her thoracic pain

syndrome and mental impairments constituted severe impairments. A “severe impairment” is defined
as an impairment or combination of impairments “which significantly limits your physical or mental
ability to do basic work activities.” 20 C.F.R. § 416.920(c). Upon determining that a claimant has
one severe impairment the ALJ must continue with the remaining steps in the disability evaluation.
See Maziarz v. Secretary of Health & Human Services, 837 F.2d 240, 244 (6th Cir. 1987). Once the
ALJ determines that a claimant suffers from a severe impairment, the fact that the ALJ failed to
classify a separate condition as a severe impairment does not constitute reversible error. Id. An ALJ
can consider such non-severe conditions in determining the claimant’s residual functional capacity.
Id. Here, the ALJ found that plaintiff had multiple severe impairments and performed the remaining
steps of the disability evaluation. This claim of error will be denied.
C.

The ALJ’s residual functional capacity (RFC) finding is not
supported by substantial evidence as required by 20 C.F.R. §
416.914 and applicable case law.
1.

The RFC does not accurately portray plaintiff’s
well-established impairments on plaintiff’s ability
to function, as required by 20 C.F.R. § 416.945 and
SSR 98-6p.

Residual functional capacity (RFC) is a medical assessment of what an individual can
do in a work setting in spite of functional limitations and environmental restrictions imposed by all
of his medically determinable impairments. 20 C.F.R. § 416.945. RFC is defined as “the maximum
degree to which the individual retains the capacity for sustained performance of the physical-mental
requirements of jobs” on a regular and continuing basis. 20 C.F.R. Part 404, Subpt. P, App. 2, §
11

200.00(c); See Cohen, 964 F.2d at 530. “The RFC assessment must address both the remaining
exertional and nonexertional capacities of the individual.” SSR 96-8p.5 Plaintiff contends that the
RFC assessment did not take into account her nosebleeds, which, according to plaintiff, occur once
or twice a day, lasting about 30 minutes (AR 762). During that time, blood goes out her nostrils and
down her throat (AR 762). Sometimes she can control it with a tissue, but other times if the blood
is “rolling everywhere” she has to stand over a sink or waste basket (AR 762). The type of
nosebleeds that plaintiff suffers are more than a periodic nuisance. Dr. McKay corroborated the fact
that plaintiff suffers from daily nosebleeds and this was one cause of plaintiff’s anemia (AR 635-37,
662). As a practical matter, this type of condition would certainly affect plaintiff’s ability to
function in a work setting. For example, plaintiff’s attorney posed a hypothetical question to the
vocational expert (VE) regarding the nosebleeds:
[L]et’s assume that every other day, [plaintiff] had a nose bleed during the course of
the work day that took her off, was of course unscheduled, unpredictable and it took
her off task for the duration of the nose bleed. And of course, there’d be a bit of
blood around and she’[d] have to attend to that. Would that preclude all work?
(AR 778). In response, the VE testified “It would appear so” (AR 778).
It is undisputed that plaintiff suffers from frequent and significant nosebleeds. The
ALJ found that this condition was a severe impairment (AR 20). The VE testified that this condition
could be work preclusive (AR 778). However, plaintiff’s RFC was mute with respect to limitations
caused by this condition. Given this record, the RFC did not accurately reflect plaintiff’s ability to

5

SSR’s “are binding on all components of the Social Security Administration” and “represent
precedent final opinions and orders and statements of policy and interpretations” adopted by the agency. 20
C.F.R. § 402.35(b)(1). While SSR’s do not have the force of law, they are an agency’s interpretation of its
own regulations and “entitled to substantial deference and will be upheld unless plainly erroneous or
inconsistent with the regulation.” Kornecky v. Commissioner of Social Security, 167 Fed. Appx. 496, 498
(6th Cir. 2006), quoting Wilson, 378 F.3d at 549 (citations omitted).

12

function in a work setting. Accordingly, on remand, the ALJ should re-evaluate the evidence with
respect to plaintiff’s nosebleeds and determine the extent to which this condition affects her RFC.
2.

The ALJ’s decision is not supported by substantial
evidence because he failed to follow 20 C.F.R. §
416.929 and applicable case law in assessing
plaintiff’s credibility.

An ALJ may discount a claimant’s credibility where the ALJ “finds contradictions
among the medical records, claimant’s testimony, and other evidence.” Walters, 127 F.3d at 531.
“It [i]s for the [Commissioner] and his examiner, as the fact-finders, to pass upon the credibility of
the witnesses and weigh and evaluate their testimony.” Heston, 245 F.3d at 536, quoting Myers v.
Richardson, 471 F.2d 1265, 1267 (6th Cir. 1972). The court “may not disturb” an ALJ’s credibility
determination “absent [a] compelling reason.” Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001).
The threshold for overturning an ALJ’s credibility determination on appeal is so high, that in recent
years, the Sixth Circuit has expressed the opinion that “[t]he ALJ’s credibility findings are
unchallengeable,” Payne v. Commissioner of Social Security, 402 Fed. Appx. 109, 113 (6th Cir.
2010), and that “[o]n appeal, we will not disturb a credibility determination made by the ALJ, the
finder of fact . . . [w]e will not try the case anew, resolve conflicts in the evidence, or decide
questions of credibility.” Sullenger v. Commissioner of Social Security, 255 Fed. Appx. 988, 995
(6th Cir. 2007). Nevertheless, an ALJ’s credibility determinations regarding subjective complaints
must be reasonable and supported by substantial evidence. Rogers v. Commissioner of Social
Security, 486 F.3d 234, 249 (6th Cir. 2007).
The ALJ’s evaluation of plaintiff’s credibility included the following observations:
As noted earlier, claimant alleges considerable impairment of her physical
function, as a result of the chronic pain from her thoracotomy, the fatigue from her
epistaxis with resultant anemia, and the more practical problem of dealing with
13

frequent nosebleeds while trying to perform various activities. The medical evidence
of record reflects consistent subjective complaints of pain over the years, reportedly
only intermittently relieved by or somewhat controlled by treatment.
A careful review of the medical evidence demonstrates that while there is
evidence of deconditioning, there is no objective evidence of a problem beyond
anemia. The alleged onset date is in July 2003. In October 2004, after surgery,
claimant reported she usually sleeps OK and can get most of her chores done
(Exhibit 7F/11). She had no pain with movement and full range of motion (ibid). In
December 2004, after additional treatment, claimant reported being able to do all her
activities of daily living (id, at 15). Pain continued to flare up and she complained
of fatigue, but in May 2006, she was noted to have no anemia (Exhibit 13F/11). Her
clinical examination was generally negative, except for pain and some “disuse”
atrophy (ibid, at 7, 10). She was discharged from a pain clinic in September 2006
(Exhibit 23F/14). At that time, she had no pain with palpation, though the next month
she reported pain with palpation (ibid, at 13). Her treating doctor since 2007, Gianna
McKay, noted in April 2007 that she was in no apparent distress on examination (id,
at 10). The doctor recommended exercise.
The University of Michigan Hospital doctor who followed the underlying
disease noted the pain was “quite nicely” controlled in January 2007 (Exhibit 29F/4).
The next year, it was not (ibid, at 2). The year after that, claimant was found to be
stable, with “occasional epistaxis” (Exhibit 32F/3). But a month later, Dr. McKay
noted “frequent” epistaxis (Exhibit 33F/6). Claimant admitted she was not taking
iron supplements as prescribed to address her anemia, but the minimal amount she
took had improved her hemoglobin testing (ibid). In June 2009, claimant’s anemia
had increased, but she admitted she was again not taking any iron (id, at 5). In
September 2009, claimant admitted her pain was well-controlled in general, though
it increased with activity (id, at 4). Her anemia had again improved with medication
(id, at 3).
Finally, a pain and rehabilitation specialist noted in July 2010 that claimant
had a normal, bilateral upper extremity examination (Exhibit 30F/4). Although she
complained of cervical spine pain, the doctor felt the cause of it was “unclear” (ibid,
at 6). He wondered if the opiate medication was contributing to the pain (id, at 4).
(AR 23).
The ALJ summarized his credibility determination as follows:
The evidence indicates that claimant’s complaints are not well supported by
objective findings. Her clinical examinations are generally objectively normal. The
objective finding of anemia is, indeed, present and may cause fatigue, but claimant
has been non-cooperative with her treatment. When she cooperates, the condition
14

improves. She complained that the medication made her nauseous, but that is a
recent complaint and the new medication seems to be working well.
(AR 23-24).
The ALJ properly discounted plaintiff’s credibility after identifying contradictions
among the medical records, plaintiff’s testimony, and other evidence. Walters, 127 F.3d at 531.
However, as discussed, the ALJ did not review Dr. McKay’s updated statement from 2010. Because
the ALJ’s credibility determination was based on an incomplete medical record, the Court concludes
that the credibility determination is not supported by substantial evidence. See Rogers, 486 F.3d at
249. On remand, the ALJ should re-evaluate plaintiff’s credibility based upon the complete medical
record.
3.

Because the ALJ’s RFC is deficient, his
hypothetical to the VE is legally insufficient.

An ALJ’s finding that a plaintiff possesses the capacity to perform substantial gainful
activity that exists in the national economy must be supported by substantial evidence that the
plaintiff has the vocational qualifications to perform specific jobs. Varley v. Secretary of Health and
Human Services, 820 F.2d 777, 779 (6th Cir. 1987). This evidence may be produced through the
testimony of a VE in response to a hypothetical question which accurately portrays the claimant’s
physical and mental limitations. See Webb v. Commissioner of Social Security, 368 F.3d 629, 632
(6th Cir. 2004); Varley, 820 F.2d at 779. Here, the ALJ posed a hypothetical question to the VE

which reflected the RFC determination (AR 22, 776-77). Both the RFC determination and the
hypothetical question were based, in part, upon the ALJ’s review of Dr. McKay’s opinions and
records. However, as discussed, supra, the Court concluded that a reversal and remand under
sentence four is in order because the ALJ did not review Dr. McKay’s updated statement from

15

August 16, 2010. In addition, the RFC did not address plaintiff’s chronic nosebleeds. These
infirmities carried over into the hypothetical question posed to the VE which, as a result, did not
accurately portray plaintiff’s limitations. The Commissioner should re-evaluate the vocational
evidence at the fifth step of the sequential process.
IV. CONCLUSION
For the reasons discussed, 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 (1) evaluate Dr. McKay’s August 16, 2010 updated statement, (2) re-evaluate the evidence
with respect to plaintiff’s nosebleeds to determine the extent to which this condition affects her
ability to function in a work setting, (3) re-evaluate plaintiff’s credibility based upon the complete
medical record, (4) evaluate Dr. Shareghi’s September 21, 2010 opinion, and (5) re-evaluate
vocational evidence at the fifth step of the sequential process. A judgment consistent with this
opinion shall be issued forthwith.

Dated: March 31, 2014

/s/ Hugh W. Brenneman, Jr.
HUGH W. BRENNEMAN, JR.
United States Magistrate Judge

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