Verschueren v. Commissioner of Social Security
OPINION; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
Hon. Ellen S. Carmody
Case No. 1:13-cv-423
This is an action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C.
§ 405(g), to review a final decision of the Commissioner of Social Security denying Plaintiff’s claim
for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) under Titles II and
XVI of the Social Security Act. On July 24, 2013, the parties agreed to proceed in this Court for all
further proceedings, including an order of final judgment. (Dkt. #11).
Section 405(g) limits the Court to a review of the administrative record and provides
that if the Commissioner’s decision is supported by substantial evidence it shall be conclusive. The
Commissioner has found that Plaintiff is not disabled within the meaning of the Act. For the reasons
stated below, the Court concludes that the Commissioner’s decision is not supported by substantial
evidence. Accordingly, the Commissioner’s decision is reversed and this matter remanded for
further factual findings pursuant to sentence four of 42 U.S.C. § 405(g).
STANDARD OF REVIEW
The Court’s jurisdiction is confined to a review of the Commissioner’s decision and
of the record made in the administrative hearing process. See Willbanks v. Sec’y of Health and
Human Services, 847 F.2d 301, 303 (6th Cir. 1988). The scope of judicial review in a social security
case is limited to determining whether the Commissioner applied the proper legal standards in
making her decision and whether there exists in the record substantial evidence supporting that
decision. See Brainard v. Sec’y of Health and Human Services, 889 F.2d 679, 681 (6th Cir. 1989).
The Court may not conduct a de novo review of the case, resolve evidentiary
conflicts, or decide questions of credibility. See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.
1984). It is the Commissioner who is charged with finding the facts relevant to an application for
disability benefits, and her findings are conclusive provided they are supported by substantial
evidence. See 42 U.S.C. § 405(g).
Substantial evidence is more than a scintilla, but less than a preponderance. See
Cohen v. Sec’y of Dep’t of Health and Human Services, 964 F.2d 524, 528 (6th Cir. 1992) (citations
omitted). It is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Bogle v. Sullivan, 998 F.2d 342,
347 (6th Cir. 1993). In determining the substantiality of the evidence, the Court must consider the
evidence on the record as a whole and take into account whatever in the record fairly detracts from
its weight. See Richardson v. Sec’y of Health and Human Services, 735 F.2d 962, 963 (6th Cir.
As has been widely recognized, the substantial evidence standard presupposes the
existence of a zone within which the decision maker can properly rule either way, without judicial
interference. See Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (citation omitted). This
standard affords to the administrative decision maker considerable latitude, and indicates that a
decision supported by substantial evidence will not be reversed simply because the evidence would
have supported a contrary decision. See Bogle, 998 F.2d at 347; Mullen, 800 F.2d at 545.
Plaintiff was 43 years of age on his alleged disability onset date. (Tr. 286). He
successfully completed high school and previously worked as a newspaper deliverer, machine
tender, salvage worker, steel laborer, and yard worker. (Tr. 37-38, 75).
Plaintiff applied for benefits on January 5, 2010, alleging that he had been disabled
since April 10, 2009, due to back pain and nerve damage in his left leg. (Tr. 286-301, 330).
Plaintiff’s applications were denied, after which time he requested a hearing before an
Administrative Law Judge (ALJ). (Tr. 125-285). On March 24, 2011, Plaintiff appeared before ALJ
Craig Petersen with testimony being offered by Plaintiff and a vocational expert. (Tr. 67-121). In
a written decision dated April 4, 2011, the ALJ determined that Plaintiff was not disabled. (Tr. 15666). The Appeals Council subsequently remanded the matter for further consideration. (Tr. 17476).
On April 3, 2012, ALJ Petersen held a second administrative hearing at which
Plaintiff and Plaintiff’s wife testified. (Tr. 48-66). In a written decision dated April 17, 2012, the
ALJ denied Plaintiff’s claim for disability benefits. (Tr. 27-39). The Appeals Council declined to
review the ALJ’s determination, rendering it the Commissioner’s final decision in the matter. (Tr.
6-9). Plaintiff subsequently initiated this pursuant to 42 U.S.C. § 405(g), seeking judicial review
of the ALJ’s decision.
The Court further notes that during the pendency of the present applications for
benefits, Plaintiff submitted a second SSI claim following a March 27, 2011 heart attack. (Tr. 174).
Plaintiff was found disabled as of April 15, 2011. (Tr. 174). Thus, the question presented by the
current action is simply whether Plaintiff was disabled between his alleged disability onset date of
April 10, 2009, and April 14, 2011. In this respect, the Court notes that Plaintiff’s insured status
expired on June 30, 2010. (Tr. 29). To be eligible for Disability Insurance Benefits, Plaintiff must
establish that he became disabled prior to the expiration of his insured status. See 42 U.S.C. § 423;
Moon v. Sullivan, 923 F.2d 1175, 1182 (6th Cir. 1990).
RELEVANT MEDICAL HISTORY
On April 10, 2009, Plaintiff was involved in an auto accident after which he began
to experience “thoracic and lumbar back pain.” (Tr. 443-451). X-rays of Plaintiff’s thoracic spine
revealed “mild” degenerative changes with “no evidence of fracture or subluxations.” (Tr. 552).
X-rays of Plaintiff’s lumbar spine revealed the following:
Pedicles are symmetric. Vertebral body heights are maintained, as
are the intervertebral disc space heights. There are no subluxations.
There are no pars defects. There is no evidence of fracture. The SI
joints are patent.
X-rays of Plaintiff’s chest were unremarkable with “no acute infiltrates, effusions,
or pneumothoraces.” (Tr. 554). X-rays of Plaintiff’s cervical spine were “unremarkable” with “no
fracture, dislocation, or subluxation.” (Tr. 555). Moreover, “[t]he intervertebral disc space heights
and vertebral body heights are preserved” and “[t]he prevertebral soft-tissues are within normal
limits.” (Tr. 555). A CT examination of Plaintiff’s cervical spine revealed “mild degenerative
changes.” (Tr. 556). Plaintiff was treated with pain medication and physical therapy. (Tr. 448-50).
X-rays of Plaintiff’s lumbar spine, taken May 11, 2009, were “unremarkable.” (Tr.
558). An MRI examination of Plaintiff’s thoracic spine, performed the same day, was likewise
“unremarkable.” (Tr. 559). Treatment notes dated May 18, 2009, indicate that Plaintiff’s back pain
was “resolving” and Plaintiff was cleared to “return to work without restriction.” (Tr. 447).
On June 4, 2009, Plaintiff participated in a CT examination of his thorax the results
of which revealed the following:
The appearance of the lungs is consistent with
emphysematous COPD. There is no evidence of acute
pulmonary abnormalities. There is no evidence of abnormal
masses or of lymphadenopathy.
There are stable degenerative changes of the spine, with no
evidence of acute bone abnormalities.
On July 10, 2009, Plaintiff was examined by Dr. Michael Luttropp. (Tr. 441).
Plaintiff reported that he was experiencing pain in his thoracic and lumbar spine as well as his right
hip. (Tr. 441). Plaintiff reported that his pain was “worse with activity” and was “not yet improving
with therapy.” (Tr. 441). A musculoskeletal examination revealed the following:
Gait narrow; capable toe and heel walk, station upright. Palpated
musculoskeletal tenderness bilateral paraspinal and parathoracic
areas. Improving gait, no new areas of tenderness, no areas of gross
weakness on exam. Right hip less tender but able to elicit pain on
exam. No crepitance.
A neurological examination revealed the following:
cranial nerves II - XII without deficit - normal and equal DTR’s normal bilateral sensation to light touch, proprioception of the great
toe, Babinski’s1 - normal function of all myotomes in both lower
(Tr. 441). Plaintiff’s pain medication regimen was modified and he was instructed to continue
participating in physical therapy. (Tr. 441).
On August 12, 2009, Plaintiff was examined by Dr. Luttropp. (Tr. 438). Plaintiff
reported that his back pain persisted, but that his hip pain was “diminished.” (Tr. 438). The results
of musculoskeletal and neurological examinations were again unremarkable. (Tr. 438). Plaintiff
was again instructed to continue participating in physical therapy. (Tr. 438). Plaintiff was
discharged from physical therapy on August 27, 2009, at which point Plaintiff rated his back pain
as 4 on a scale of 1 to 10. (Tr. 455-56).
On September 24, 2009, Plaintiff was examined by Dr. Patrick Ronan. (Tr. 485-89).
Plaintiff reported that he was experiencing neck and shoulder pain which he rated as “6-8 on a daily
basis.” (Tr. 485). A physical examination revealed the following:
General: On examination, the patient presents as a middle-aged mail
in no distress. He stands 6 feet 4 inches tall and weighs 227 pounds.
He is neat and well groomed.
Gait: He walks with a normal gait pattern. He can rise up on his toes
and heels and ambulate without evidence of weakness.
Spine: Inspection of the spine reveals normal contours. Shoulder and
hip heights are symmetric. Cervical motion is performed through
normal functional range with slight discomfort over the left upper
trapezius at end range rotation to the left.
There is no
Babinski test is a neurological test designed to discern damage to the central nervous system. See Babinski, available at
http://www.medterms.com/script/main/art.asp?articlekey=7171 (last visited on September 23, 2014).
Trendelenburg.2 Trunk motion elicits a pulling stretch over the right
mid back at end range. Extension brings out discomfort in this area,
traveling downward to the L4-5 level. Lateral bending to either side
elicits minimal symptoms.
Musculoskeletal: Inspection of the neck, upper back and upper limbs
reveals no muscle atrophy, bony deformity or skin changes. There is
no palpatory tenderness in the midline over the mid to upper thoracic
spinous processes into the neck. Severe pain is indicated with
palpation at the medial inferior border of the right scapula and just
below the scapula. Intensity diminishes upon leaving this area with
minimal discomfort in the upper back and minimal symptoms in the
soft tissues of the neck. There is no pain with palpation over the
glenohumeral or acromioclavicular joints. There is no discomfort
anterior over the chest. Muscle tone is normal. There are no trigger
phenomena or other abnormal myofascial hallmarks.
Active shoulder motion is performed slowly, but full without
symptoms in a rotator cuff or joint distribution. Cross adduction is
benign. There is no apprehension and instability. Good strength is
appreciated without pain in a rotator cuff pattern against resisted
external rotation. Impingement is not present. There is no pain over
the biceps tendons with resisted wrist supination. There is no pain
over the medial or lateral epicondyle of either humerus with resisted
flexion or extension of the wrist and digits, respectively.
Inspection of the back and lower limbs reveals no muscle atrophy,
bony deformity or skin changes. There is no remarkable discomfort
with palpation in the midline or over soft tissues of the low back
excluding the site of his injection yesterday. Muscle tone is normal.
There are no trigger phenomena or other abnormal myofascial
hallmarks. Hip rotation and flexion elicit no symptoms.
Neurologic: The patient is alert and answers all questions
appropriately. Sensation to pin is reported reduced in the right arm
relative to the left, but symmetric distal to the elbow. Sensation to
pin in the lower limbs is preserved. Reflexes are equivalent in the
triceps, biceps and brachioradialis tendons in the upper limbs as well
as patellar and Achilles’ tendons in the lower limbs. Manual muscle
Trendelenburg’s sign assesses the strength of the hip abductors. See Trendelenburg’s Sign and Hip Abductor Exercises, available
at: http://www.livestrong.com/article/425133-trendelenburgs-sign-and-hip-abductor-exercises/ (last visited on September 23, 2014). The test is
performed in a standing position with your feet shoulder width apart. You then slowly lift one foot off the ground, balancing on your other foot.
A positive test is when the hip of your non weight-bearing leg drops or is lower than the other side, indicating that the hip abductors on your
weight-bearing leg are weak and cannot stabilize your pelvis. Id.
testing reveals normal strength across the joints of all four limbs.
Spurling’s and straight leg raise elicit no complaints.3
Circumferential measurements of the arms and forearms reveal no
atrophy. Circumferential measurements of the legs are similarly
benign, within 1 cm. The left side is slight[ly] smaller than the right.
Vascular: There is mild peripheral edema in the lower limbs. Pulses
Dermatologic: Skin integrity and color are normal. There are no
atrophic changes of the skin or nails.
Imaging: Plain films of the lumbosacral spine April 10, 2009 reveal
five lumbar vertebrae. There is no evidence of spondylolysis or
spondylolisthesis. Disc space heights are preserved. There are no
unremarkable facet changes. Sacroiliac joints are benign.
Plain films of the thoracic spine April 10, 2009 reveal normal
alignment. There is no compression fracture or remarkable end plate
changes. Mild anterior spurring is noted on multiple levels.
Repeat films of the thoracic and lumbosacral spine May 11, 2009
reveal no change compared to earlier studies.
CT scan of the cervical spine April 10, 2009 reveals no fracture or
dislocation. There is no evidence of a disc protrusion.
MRI of the thoracic spine May 11, 2009 reveals normal alignment.
There is no compression fracture. There is no disc herniation or
compression of neural elements. Spinal cord signal is normal.
There are additional films which predate the motor vehicle accident.
Plain films of the cervical spine January 28, 2009 reveal normal
alignment with preserved disc heights and no degenerative end plate
Plain films of the thoracic spine January 28, 2009 reveal no change
compared to the studies in April and May.
A positive Spurling’s test suggests the presence of a cervical nerve root disorder. Thomas W. Woodward, M.D., and Thomas M.
Best, M.D., Ph.D., The Painful Shoulder: Part I Clinical Evaluation, American Family Physician, May 15, 2000, available at,
http://www.aafp.org/afp/20000515/3079.html (last visited on September 23, 2014).
The doctor concluded as follows:
Mr. Verschueren presents with pain primarily at the right lower
scapula off the midline. The area of discomfort is suspicious for a
soft tissue etiology; however, the palpatory examination, although
tender, reveals normal objective myofascial hallmarks. A contusion,
strain or tear would have healed.
Examination of the shoulder girdle reveals nothing abnormal. Range
of motion of the shoulders is preserved. Provocative maneuvers do
not implicate pathology in the rotator cuff, shoulder joint or
Pain from the right scapular area can travel cephalad and actually into
the upper limb when fierce, suggestive of a radicular process.
However, pain does not follow a dermatomal pattern. Review of
records did not relate symptoms of cervical radiculopathy. On
today’s examination, neurologic findings are benign. CT scan of the
cervical spine reveals nothing compatible with an acute injury such
as a disc herniation. Neural structures are not compromised.
Symptoms spread from the mid back to the low back when fierce, but
the patient does not describe specific emanation of symptoms from
the low back. Thigh pain does not follow a dermatome. Examination
reveals normal neurologic findings.
On September 30, 2009, Plaintiff participated in an MRI examination of his cervical
spine the results of which revealed “mild” disc bulging with “no significant stenosis or disc
herniations.” (Tr. 566). An MRI examination of Plaintiff’s lumbar spine, performed the same day,
revealed a “small central disc herniation at L5-S1.” (Tr. 567).
On October 15, 2009, Plaintiff was examined by Dr. Steven Klafeta. (Tr. 503-05).
Plaintiff reported that he was experiencing “constant” pain in his neck, back and lower extremities
which he rated as “8 out of 10.” (Tr. 503). Plaintiff walked with a “normal” gait and exhibited
“normal” lumbar and cervical range of motion. (Tr. 504). A neurologic examination revealed the
Cranial nerves II-XII are intact. Motor strength is 5/5 throughout.
His deep tendon reflexes are 2 throughout. There is no clonus, no
Hoffmann’s,4 no pectorals and no Babinski. His sensation is intact
to light touch, pin and vibration in all dermatomes. Decreased
vibration in the right hand.
(Tr. 504). The doctor concluded that he “cannot explain” Plaintiff’s pain symptoms. (Tr. 504).
X-rays of Plaintiff’s thoracic spine, taken October 26, 2009, revealed “minor disc
narrowing,” but were “otherwise unremarkable.” (Tr. 525). An MRI examination of Plaintiff’s
thoracic spine, performed the same day, was “normal.” (Tr. 524).
Treatment notes dated December 9, 2009, indicate that Plaintiff was “most likely”
experiencing myofascial pain. (Tr. 536). X-rays of Plaintiff’s lumbosacral spine, taken December
28, 2009, revealed “normal” lumbar alignment, “preserved” vertebral body and disc heights, “no
pathologic subluxation.” (Tr. 574). X-rays of Plaintiff’s thoracic spine, taken the same day,
revealed “mild degenerative changes” with “no bone injury or destruction.” (Tr. 575).
On January 21, 2010, Plaintiff was examined by Dr. Stephen Winston. (Tr. 538-39).
Plaintiff reported that he was experiencing “varying issues of unrelenting pain that includes severe
back pain, right leg pain with weakness, severe interscapular pain, neck pain and right arm pain.”
(Tr. 538). In response, the doctor observed the following:
What is most troubling about this patient is the degree of incapacity
experienced. His behavior during today’s visit is one of a person
with a significant amount of pain behavior and I did explain to the
patient and his wife that his pain behavior was excessive irrespective
of the amount of underlying pathology. Constant groaning because
of pain and the inability to move because of pain is simply odd.
Hoffman’s sign is an indicator of a number of neurological conditions including cervical spondylitis, other forms of spinal cord
compression, and multiple sclerosis. See Hoffman’s Sign, available at, http://www.mult-sclerosis.org/Hoffmanssign.html (last visited on
September 23, 2014).
(Tr. 538). A physical examination revealed the following:
Vital signs as noted. Mental status normal. Evidence of pain
behavior with non organic findings consistent with Waddell’s5 of
head down pressure causing pain, trunk rotation with hip rotation
causing pain and a lot of pain behavior such as grimacing and
groaning with movement of various structures including both arms
and both legs.
A focused examination reveals bilateral upper extremity examination
to be neurovascular intact for sensory function, motor and reflexes
including negative Hoffmann’s with normal distal pulses, negative
Adson’s,5 as well as a lower extremity examination that demonstrates
negative neurologic findings for sensation, motor, reflexes with toes
downgoing and no clonus. He arises with some difficulty, walks with
a tandem gait with a slight slump forward posture. His gait is
otherwise unremarkable. He has normal cervical range of motion and
the remaining portions of the examination are entirely normal.
On January 28, 2010, Plaintiff participated in a bone scan examination of his spine
and thoracic cage the results of which revealed “no focal areas to suggest a thoracic vertebral
fracture.” (Tr. 576).
On March 2, 2010, Plaintiff was examined by Dr. Mark Moulton. (Tr. 623). Plaintiff
reported that he was experiencing “chronic pain” that is “worsened with any type of activity” and
which also causes him to experience “nausea and vomiting.” (Tr. 623). A physical examination
revealed the following:
Physical examination shows a 6 foot-3 inch male. On motor testing,
A positive Waddell’s sign indicates that there exists a non-organic (i.e., psychological or psychosocial) component to an
individual’s lower back pain. See, e.g., A New Sign of Inappropriate Lower Back Pain, available at
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2504150/ (last visited on September 23, 2014); Assessment and Management of Acute Low Back
Pain, available at http://www.aafp.org/afp/991115ap/2299.html (last visited on September 23, 2014); Gordon Waddell, M.D., Waddell’s Signs Do they Mean Malingering?, Disability Medicine, March-June 2004 at 38-39; Steven Greer, M.D. and Leslie Mackler, What Physical Exam
Techniques are Useful to Detect Malingering, The Journal of Family Practice, August 2005 at 719-22.
Adson’s test is employed to determine the presence of thoracic outlet syndrome. J.E. Schmidt, Schmidt’s Attorneys’ Dictionary of
Medicine A-115 (Matthew Bender) (1996).
he has 5/5 strength in his iliopsoas, quadriceps, tibialis anterior, EHL,
gastoc soleus complex, hamstrings and peroneals bilaterally. He has
normal sensation in both lower extremities. Deep tendon reflexes are
normal at the knees and the ankles at +2 bilaterally. He has down
going toes, no sustained clonus and negative Babinski. He has good
dorsalis pedus pulse and posterior tibialis pulse at +2 bilaterally.
X-rays of Plaintiff’s thoracic and lumbar spine were “really quite unremarkable” with
“no evidence of spondylolisthesis, tumor, fracture or instability” and “no evidence of stenosis.” (Tr.
623). The doctor concluded that Plaintiff was not experiencing “an apparent structural problem,”
but instead simply required “pain management.” (Tr. 623).
On March 31, 2010, Plaintiff participated in a consultive examination conducted by
David Cashbaugh Jr., LLP. (Tr. 633-38). Plaintiff reported that he was disabled due to “nerve
damage in my right leg, pain in my upper back, herniated discs in my lower back.” (Tr. 633).
Plaintiff reported that “if he tries to do anything, he gets pain in his back, and his blood pressure will
shoot way up.” (Tr. 633). Plaintiff reported that he was taking Vicodin for his pain. (Tr. 633). The
doctor observed that Plaintiff had been prescribed four Vicodin tablets daily, but that a bottle of 21
Vicodin tablets, filled only two days previously, only had six pills left. (Tr. 633). Plaintiff reported
that “he is in pain 99% of the time” and that “most of the time his pain level is a 7 or an 8.” (Tr.
636). Cashbaugh observed that Plaintiff “was able to remain seated throughout the hour long
examination” and “did not appear to be physically uncomfortable while seated.” (Tr. 637).
Cashbaugh concluded that Plaintiff was experiencing pain disorder associated with both
psychological factors and a general medical condition. (Tr. 638).
On May 14, 2010, Plaintiff reported to the emergency room complaining of back
pain. (Tr. 657). Plaintiff reported that he was examined at a different emergency department the
previous day, but “feels dissatisfied because he does not feel that he received enough pain
medication yesterday.” (Tr. 657). The results of a physical examination were unremarkable. (Tr.
658-59). Plaintiff was nevertheless provided pain medication after which he was “discharged in
stable condition.” (Tr. 659).
On November 19, 2010, Plaintiff “underwent balloon angioplasty and stenting,”
performed by Dr. Craig McBrayer, to repair “acute arterial emboli”6 that Plaintiff was experiencing
in his right lower extremity. (Tr. 646). On December 8, 2010, Plaintiff was examined by Dr.
McBrayer. (Tr. 760). A duplex examination revealed “that the area of stenosis has resolved very
nicely.” (Tr. 760). Plaintiff reported that “his foot feels better” and the doctor observed that
Plaintiff’s “walking is markedly improved.” (Tr. 760).
On February 16, 2011, Physician’s Assistant Rebecca Ganzow and Dr. Sotero Ureta
completed a Physical Residual Functional Capacity Questionnaire. (Tr. 801-05). The doctor
reported that Plaintiff can walk one to two blocks “without rest or severe pain,” sit for 30 minutes,
and stand for 20 minutes. (Tr. 802). The doctor reported that during an 8-hour workday with
normal breaks, Plaintiff can stand/walk “less than 2 hours” and sit for “about 4 hours.” (Tr. 803).
The doctor reported that Plaintiff required a sit/stand option. (Tr. 803). The doctor reported that
Plaintiff can “rarely” lift 10 pounds and can “never” lift 20 pounds or more. (Tr. 803).
On March 27, 2011,7 Plaintiff reported to the hospital complaining of nausea,
vomiting, and shortness of breath. (Tr. 928). Plaintiff exhibited “evidence of congestive heart
An arterial embolism results from “a sudden interruption of blood flow to an organ or body part due to a clot (embolus).” See
Arterial Embolism, available at http://www.pennmedicine.org/encyclopedia/em_DisplayArticle.aspx?gcid=001102&ptid=1 (last visited on
September 29, 2014).
This particular record incorrectly identifies the date as April 27, 2011. As the Appeals Council recognized, Plaintiff experienced
his heart attack on March 27, 2011, a date which is consistent with the other medical evidence. (Tr. 174).
failure at initial presentation” and a subsequent heart catheterization “revealed severe three-vessel
coronary artery disease.” (Tr. 928). Plaintiff’s health, relative to his coronary artery disease,
continued to deteriorate throughout 2011. (Tr. 902-35, 942-60).
ANALYSIS OF THE ALJ’S DECISION
The social security regulations articulate a five-step sequential process for evaluating
disability. See 20 C.F.R. §§ 404.1520(a-f), 416.920(a-f).8 If the Commissioner can make a
dispositive finding at any point in the review, no further finding is required. See 20 C.F.R. §§
The regulations also provide that if a claimant suffers from a
nonexertional impairment as well as an exertional impairment, both are considered in determining
his residual functional capacity. See 20 C.F.R. §§ 404.1545, 416.945.
The burden of establishing the right to benefits rests squarely on Plaintiff’s shoulders,
and he can satisfy his burden by demonstrating that his impairments are so severe that he is unable
to perform his previous work, and cannot, considering his age, education, and work experience,
perform any other substantial gainful employment existing in significant numbers in the national
1. An individual who is working and engaging in substantial gainful activity will not be found to be “disabled”
regardless of medical findings (20 C.F.R. 404.1520(b));
2. An individual who does not have a “severe impairment” will not be found “disabled” (20 C.F.R.
3. If an individual is not working and is suffering from a severe impairment which meets the duration
requirement and which “meets or equals” a listed impairment in Appendix 1 of Subpart P of Regulations No.
4, a finding of “disabled” will be made without consideration of vocational factors (20 C.F.R. 404.1520(d));
4. If an individual is capable of performing work he or she has done in the past, a finding of “not disabled”
must be made (20 C.F.R. 404.1520(e));
5. If an individual’s impairment is so severe as to preclude the performance of past work, other factors
including age, education, past work experience, and residual functional capacity must be considered to
determine if other work can be performed (20 C.F.R. 404.1520(f)).
economy. See 42 U.S.C. § 423(d)(2)(A); Cohen, 964 F.2d at 528. While the burden of proof shifts
to the Commissioner at step five, Plaintiff bears the burden of proof through step four of the
procedure, the point at which his residual functioning capacity (RFC) is determined. See Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987); Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir.
1997) (ALJ determines RFC at step four, at which point claimant bears the burden of proof).
The ALJ determined that Plaintiff suffers from: (1) lumbar spine pain with lower
extremity radiculopthy; (2) upper back pain; (3) cervical spine pain; (4) depression; and (5) obesity,
severe impairments that whether considered alone or in combination with other impairments, failed
to satisfy the requirements of any impairment identified in the Listing of Impairments detailed in 20
C.F.R., Part 404, Subpart P, Appendix 1. (Tr. 30-34).
With respect to Plaintiff’s residual functional capacity, the ALJ determined that
Plaintiff retained the capacity to perform work subject to the following limitations: (1) he can
lift/carry 20 pounds occasionally and 10 pounds frequently; (2) he can frequently push/pull 10
pounds; (3) he can stand/walk for six hours during an 8-hour workday; (4) he can sit for six hours
during an 8-hour workday; (5) he can occasionally climb ramps/stairs, but cannot climb ladders,
ropes, or scaffolds; (6) he can occasionally stoop, kneel, and crouch, but can never crawl; (7) he
should avoid concentrated exposure to heat, humidity, cold, gases, and fumes; (8) he can perform
simple, routine, and repetitive tasks; (9) he must work in an environment that is free from fast-paced
production requirements; (10) he is limited to work involving only simple, work-related decisions
and few, if any, workplace changes. (Tr. 34-35).
The ALJ found that Plaintiff could not perform his past relevant work at which point
the burden of proof shifted to the Commissioner to establish by substantial evidence that a
significant number of jobs exist in the national economy which Plaintiff could perform, his
limitations notwithstanding. See Richardson, 735 F.2d at 964. While the ALJ is not required to
question a vocational expert on this issue, “a finding supported by substantial evidence that a
claimant has the vocational qualifications to perform specific jobs” is needed to meet the burden.
O’Banner v. Sec’y of Health and Human Services, 587 F.2d 321, 323 (6th Cir. 1978) (emphasis
added). This standard requires more than mere intuition or conjecture by the ALJ that the claimant
can perform specific jobs in the national economy. See Richardson, 735 F.2d at 964. Accordingly,
ALJs routinely question vocational experts in an attempt to determine whether there exist a
significant number of jobs which a particular claimant can perform, his limitations notwithstanding.
Such was the case here, as the ALJ questioned a vocational expert.
The vocational expert testified that there existed in the state of Michigan
approximately 8,600 jobs which an individual with Plaintiff’s RFC could perform, such limitations
notwithstanding. (Tr. 111-18). The vocational expert further testified that if Plaintiff were further
limited to: (1) lifting/carrying no more than 10 pounds; (2) a sit-stand option every 30 minutes; and
(3) no overhead work, there still existed approximately 2,800 jobs which Plaintiff could perform.
(Tr. 118-19). This represents a significant number of jobs. See Born v. Sec’y of Health and Human
Services, 923 F.2d 1168, 1174 (6th Cir. 1990); Hall v. Bowen, 837 F.2d 272, 274 (6th Cir. 1988);
Martin v. Commissioner of Social Security, 170 Fed. Appx. 369, 374 (6th Cir., Mar. 1, 2006). The
ALJ concluded, therefore, that Plaintiff was not entitled to disability benefits.
The ALJ Adjudicated the Correct Time Period
As noted above, Plaintiff was seeking both DIB and SSI benefits. However, because
Plaintiff’s insured status expired on June 30, 2010, the time periods relevant to each type of
disability claim were distinct. Specifically, the relevant time period for Plaintiff’s DIB claim was
April 10, 2009, through June 30, 2010. On the other hand, the relevant time period for Plaintiff’s
SSI claim was April 10, 2009, through April 14, 2011. Plaintiff asserts that he is entitled to relief
because the ALJ mistakenly adjudicated only his DIB claim, thereby failing to consider the entire
time period relevant to his SSI claim. Plaintiff’s claim is based upon an isolated statement in the
ALJ’s opinion suggesting that the only outstanding issue was whether Plaintiff was entitled to DIB
benefits. (Tr. 27).
In articulating the legal standard which governed Plaintiff’s disability claims, the ALJ
cited to the Code of Federal Regulations provisions applicable to both DIB and SSI claims. (Tr. 2829). Also, the ALJ expressly considered whether Plaintiff was disabled from April 10, 2009,
through April 14, 2011. (Tr. 28, 39). In sum, an examination of the totality of the ALJ’s decision
persuades the Court that the ALJ adjudicated the appropriate time period. Accordingly, this
argument is rejected.
This Court Lacks the Authority to Review Appeals Council Action
Plaintiff argues that he is entitled to relief because the ALJ “repeatedly violated the
Appeals Council’s remand order.” Plaintiff has failed, however, to cite to any authority in support
of this argument. The Court has failed to locate any controlling authority that authorizes this Court
to review and assess action undertaken by the Appeals Council. The Appeals Council remanded the
matter to the ALJ who again denied Plaintiff’s claim. Plaintiff appealed this determination to the
Appeals Council which denied review. Inherent in this decision is the conclusion that the Appeals
Council was satisfied that the ALJ complied with its previous remand order.
While the Sixth Circuit does not appear to have addressed this particular issue, the
Court did locate decisions by other district courts that the district court did possess the authority to
pass judgment on whether the ALJ complied with an Appeals Council remand order. See, e.g.,
Godbey v. Colvin, 2014 WL 4437647 (W.D. Ky., Sept. 9, 2014). The Court is not persuaded by this
authority, however, as it conflicts with the authority, discussed above, that limits this Court to
simply reviewing the ALJ’s decision and determining whether such is supported by substantial
evidence. On this particular issue, the Court is more persuaded by the conclusion reached by the
Honorable Joseph G. Scoville that “the scope of the Court’s review is defined by statute and does
not encompass the Appeals Council’s discretionary decision whether to grant review.” Porterfield
v. Commissioner of Social Security, 2014 WL 1329410 at *3 (W.D. Mich., Mar. 28, 2014).
Accordingly, this argument is rejected.
The ALJ’s Treatment of the Lay Witness Testimony is not a Basis for Relief
Plaintiff’s wife testified at the second administrative hearing. (Tr. 60-65). The ALJ,
however, did not address in his second opinion this particular testimony and the weight he afforded
such. Plaintiff asserts that this error entitles him to relief. Plaintiff’s wife testified that Plaintiff
experiences “difficulty functioning.” (Tr. 60-65). Her testimony, however, was vague and
nonspecific regarding the extent of Plaintiff’s functional limitations. (Tr. 60-65). While the ALJ
is generally required to comment upon lay witness testimony, the failure to do so is harmless unless
a reasonable ALJ “could have reached a different disability determination based on [the lay witness]
testimony.” Maloney v. Commissioner of Social Security, 480 Fed. Appx. 804, 810 (6th Cir., May
15, 2012). It is not reasonable to conclude that a reasonable ALJ could have reached a different
conclusion based on the testimony of Plaintiff’s wife. Accordingly, this argument is rejected.
The ALJ’s Step II Finding, as well as his RFC Determination, are not
Supported by Substantial Evidence
Plaintiff next asserts that he is entitled to relief because the ALJ found that his
“cardiac condition was not severe during the relevant time period.” At step two of the sequential
disability analysis articulated above, the ALJ must determine whether the claimant suffers from a
severe impairment. The Sixth Circuit has held that where the ALJ finds the presence of a severe
impairment at step two and proceeds to continue through the remaining steps of the analysis, the
alleged failure to identify as severe some other impairment constitutes harmless error so long as the
ALJ considered the entire medical record in rendering his decision. See Maziarz v. Sec’y of Health
and Human Services, 837 F.2d 240, 244 (6th Cir. 1987); Kirkland v. Commissioner of Social
Security, 528 Fed. Appx. 425, 427 (6th Cir., May 22, 2013) (“so long as the ALJ considers all the
individual’s impairments, the failure to find additional severe impairments. . .does not constitute
While the ALJ determined that Plaintiff suffered from a severe impairment at step
two of the sequential analysis and continued with the remaining steps thereof, the ALJ’s decision
belies any argument that he considered the entire record or all the impairments from which Plaintiff
suffers. Specifically, the ALJ made no mention in his opinion of the additional evidence concerning
Plaintiff’s heart attack and subsequent treatment for his cardiovascular condition. That the ALJ
failed to consider or account for Plaintiff’s cardiovascular impairment is amply demonstrated by the
fact that the ALJ, in his two decisions in this matter, articulated the exact same RFC in both
decisions. In other words, the ALJ determined that despite having suffered a heart attack, which
according to the Commissioner rendered Plaintiff completely disabled, such did not diminish
Plaintiff’s ability to perform work activities. This determination is not supported by substantial
evidence. In sum, neither the ALJ’s Step II findings nor his RFC determination are supported by
The ALJ’s Assessment of Dr. Ureta’s Opinions is not Supported by Substantial
Plaintiff also argues that he is entitled to relief because the ALJ failed to properly
assess the opinions of his treating physician, Dr. Ureta. The treating physician doctrine recognizes
that medical professionals who have a long history of caring for a claimant and his maladies
generally possess significant insight into his medical condition. See Barker v. Shalala, 40 F.3d 789,
794 (6th Cir. 1994). An ALJ must, therefore, give controlling weight to the opinion of a treating
source if: (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, 375-76 (6th Cir.
2013) (quoting 20 C.F.R. § 404.1527).
Such deference is appropriate, however, only where the particular opinion “is based
upon sufficient medical data.” Miller v. Sec’y of Health and Human Services, 1991 WL 229979 at
*2 (6th Cir., Nov. 7, 1991) (citing Shavers v. Sec’y of Health and Human Services, 839 F.2d 232,
235 n.1 (6th Cir. 1987)). The ALJ may reject the opinion of a treating physician where such is
unsupported by the medical record, merely states a conclusion, or is contradicted by substantial
medical evidence. See Cohen, 964 F.2d at 528; Miller v. Sec’y of Health and Human Services, 1991
WL 229979 at *2 (6th Cir., Nov. 7, 1991) (citing Shavers v. Sec’y of Health and Human Services,
839 F.2d 232, 235 n.1 (6th Cir. 1987)); Cutlip v. Sec’y of Health and Human Services, 25 F.3d 284,
286-87 (6th Cir. 1994).
If an ALJ accords less than controlling weight to a treating source’s opinion, the ALJ
must “give good reasons” for doing so. Gayheart, 710 F.3d at 376. Such reasons must be
“supported by the evidence in the case record, and must be sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating source’s medical opinion and
the reasons for that weight.” This requirement “ensures that the ALJ applies the treating physician
rule and permits meaningful review of the ALJ’s application of the rule.” Id. (quoting Wilson v.
Commissioner of Social Security, 378 F.3d 541, 544 (6th Cir. 2004)). Simply stating that the
physician’s opinions “are not well-supported by any objective findings and are inconsistent with
other credible evidence” is, without more, too “ambiguous” to permit meaningful review of the
ALJ’s assessment. Gayheart, 710 F.3d at 376-77.
If the ALJ affords less than controlling weight to a treating physician’s opinion, the
ALJ must still determine the weight to be afforded such. Id. at 376. In doing so, the ALJ must
consider the following factors: (1) length of the treatment relationship and frequency of the
examination, (2) nature and extent of the treatment relationship, (3) supportability of the opinion,
(4) consistency of the opinion with the record as a whole, (5) the specialization of the treating
source, and (6) other relevant factors. Id. (citing 20 C.F.R. § 404.1527). While the ALJ is not
required to explicitly discuss each of these factors, the record must nevertheless reflect that the ALJ
considered those factors relevant to his assessment. See, e.g., Oldham v. Astrue, 509 F.3d 1254,
1258 (10th Cir. 2007); Undheim v. Barnhart, 214 Fed. Appx. 448, 450 (5th Cir., Jan. 19, 2007).
As noted above, on February 16, 2011, Dr. Ureta and Physician’s Assistant Ganzow
completed a report concerning Plaintiff’s residual functional capacity, concluding that Plaintiff was
much more limited than recognized by the ALJ. The ALJ completely rejected these opinions on the
ground that the report was completed by an unacceptable medical source and “is not supported by
the majority of objective findings of record and other qualified medical opinions.” (Tr. 37).
First, while a physician’s assistant is not an acceptable medical source, a medical
doctor is an acceptable source. See, e.g., 20 C.F.R. §§ 404.1527(a)(2); 416.927(a)(2). The report
in question was clearly signed by Dr. Ureta. (Tr. 805). Moreover, there is neither evidence nor
suggestion that Dr. Ureta did not participate in this assessment or that the opinions expressed therein
are not his own. The ALJ also rejected the opinions in question on the ground that such are “not
supported by the majority of objective findings of record and other qualified medical opinions.” As
previously noted, simply asserting that a doctor’s opinions “are not well-supported by any objective
findings and are inconsistent with other credible evidence” is, without more, too “ambiguous” to
permit meaningful review of the ALJ’s assessment. Gayheart, 710 F.3d at 376-77. Accordingly,
the Court finds that the ALJ’s rationale for rejecting Dr. Ureta’s opinions is not supported by
Remand is Appropriate
While the Court finds that the ALJ’s decision fails to comply with the relevant legal
standards, Plaintiff can be awarded benefits only if proof of his disability is “compelling.” Faucher
v. Secretary of Health and Human Serv’s, 17 F.3d 171, 176 (6th Cir. 1994) (the court can reverse
the Commissioner’s decision and award benefits if all essential factual issues have been resolved
and proof of disability is compelling). While the ALJ’s decision is not supported by substantial
evidence, there does not exist compelling evidence that Plaintiff is disabled. In sum, evaluation of
Plaintiff’s claim requires the resolution of factual disputes which this Court is neither authorized nor
competent to undertake in the first instance. Specifically, a finding regarding Plaintiff’s RFC must
be made after which it must be determined whether there exist a significant number of jobs which
Plaintiff could perform consistent with his RFC. Accordingly, the Commissioner’s decision must
be reversed and this matter remanded for further factual findings.
For the reasons articulated herein, the Court concludes that the ALJ’s decision is not
supported by substantial evidence. Accordingly, the Commissioner’s decision is reversed and the
matter remanded for further factual findings pursuant to sentence four of 42 U.S.C. § 405(g).
A judgment consistent with this opinion will enter.
Date: September 30, 2014
/s/ Ellen S. Carmody
ELLEN S. CARMODY
United States Magistrate Judge
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