Rupert v. Commissioner of Social Security

Filing 14

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

DORIS M. RUPERT,
Plaintiff,
v.

Case No. 1:13-cv-460
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 Supplemental Security Income (SSI).
Plaintiff was born on February 10, 1966 (AR 312).1 She alleged a disability onset
date of January 1, 2000 (AR 312). Plaintiff completed one year of college and has been employed

as an assistant/substitute teacher, a cashier in a fast food restaurant, a meat cutter and a loan
processor (AR 37-40, 239, 330). Plaintiff identified her disabling conditions as neuropathy,
fibromyalgia, and degenerative disc disease (AR 329). An administrative law judge (ALJ) reviewed
plaintiff’s claim de novo and entered a written decision denying benefits on August 18, 2011 (AR
13-23). 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.

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

I. LEGAL STANDARD
This court’s review of the Commissioner’s decision is typically focused on
determining whether the Commissioner’s findings are supported by substantial evidence. 42 U.S.C.
§405(g); McKnight v. Sullivan, 927 F.2d 241 (6th Cir. 1990). “Substantial evidence is more than a
scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Cutlip v. Secretary of Health & Human Services,
25 F.3d 284, 286 (6th Cir. 1994). A determination of substantiality of the evidence must be based
upon the record taken as a whole. Young v. Secretary of Health & Human Services, 925 F.2d 146
(6th Cir. 1990).
The scope of this review is limited to an examination of the record only. This Court
does not review the evidence de novo, make credibility determinations or weigh the evidence.
Brainard v. Secretary of Health & Human Services, 889 F.2d 679, 681 (6th Cir. 1989). The fact that
the record also contains evidence which would have supported a different conclusion does not
undermine the Commissioner’s decision so long as there is substantial support for that decision in
the record. Willbanks v. Secretary of Health & Human Services, 847 F.2d 301, 303 (6th Cir. 1988).
Even if the reviewing court would resolve the dispute differently, the Commissioner’s decision must
stand if it is supported by substantial evidence. Young, 925 F.2d at 147.
A claimant must prove that he suffers from a disability in order to be entitled to
benefits. A disability is established by showing that the claimant cannot engage in substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period of

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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).
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

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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. At the first step, the ALJ
initially found that plaintiff has not engaged in substantial gainful activity since her SSI application
date of August 18, 2009 (AR 15). At the second step, the ALJ found that plaintiff had severe
impairments of degenerative disc disease of the lumbar spine and obesity (AR 15). 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
19). Specifically, plaintiff did not meet the requirements of Listings 1.04 (disorders of the spine) or
12.04 (affective disorders) (AR 17). The ALJ decided at the fourth step that plaintiff had the residual
functional capacity (RFC):
. . . to perform a limited range of sedentary work as defined in 20 CFR 416.967(a):
she cannot lift and/or carry more than 20 pounds occasionally and 10 pounds
frequently; sit, stand, walk, stoop, or drive for more than 30 minutes at a time after
which she requires a change of pace or short work-break; or perform activities which
require prolonged flexion of the neck or repetitive bending and twisting of the neck
and low back.
(AR 17). The ALJ also determined that plaintiff was unable to perform her past relevant work (AR
21).

At the fifth step, the ALJ determined that plaintiff could perform a significant number
of unskilled, light jobs in the regional economy (AR 22).2 Specifically, plaintiff could perform the
following: cashier (2,000 jobs); telephone solicitor (1,000 jobs); and surveillance system monitor

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Although the ALJ’s decision did not identify the relevant regional economy, the vocational expert
identified the region as the State of Michigan (AR 36-37, 78-80).

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(1,000 jobs) (AR 22). Accordingly, the ALJ determined that plaintiff has not been under a
disability, as defined in the Social Security Act, at any time through August 18, 2011 (the date of the
decision) (AR 22-23).

III. ANALYSIS
Plaintiff has raised two issues on appeal:
A.

The ALJ ignored the regulation requiring that the
combined effect of multiple medical impairments,
whether severe or non-severe, be considered in the
adjudication process.

Plaintiff contends that the ALJ failed to consider the combined effects of her
impairments as required by 20 C.F.R. § 416.923. Specifically, plaintiff contends that the ALJ failed
to consider her mental impairments. In his decision, the ALJ did not find plaintiff’s depression to
be a severe impairment. The ALJ noted that while plaintiff claimed to have attended therapy at Pine
Rest Christian Mental Health Services since she moved to Michigan in 2008, plaintiff conceded that
since March 2011 she attended only one such session (AR 15). The evidence of record indicates that
the claimant attended counseling at Michigan Behavioral Consultants from mid-April through
August 2009, which focused upon learning pain management skills (AR 16). The Social Security
Administration scheduled a consultative examination in November 2009, which assessed her to
have depression secondary to a medical condition (AR 16). Plaintiff initiated counseling at Pine
Rest in January 2010 citing decreased energy, difficulty sleeping, anhedonia, and crying spells as
her primary symptoms (AR 16). Plaintiff has received medication to treat her condition which has
been adjusted over time (AR 16).
The ALJ summarized plaintiff’s condition and treatment as follows:

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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. Progress notes from her counselors /
therapists show that the claimant has consistently presented for counseling sessions
as cooperative and in contact with reality; there are no annotations that she has
exhibited evidence of psychomotor agitation, hostility, suspiciousness, or unusual
behavior or mannerisms. Treatment records indicate that she generally offers clear,
rational responses and displays relevant, logical, and organized thought processes
with no evidence of a thought disorder.
(AR 16). The ALJ found that plaintiff’s mental impairment resulted in mild restrictions, noted the
absence of evidence to establish that plaintiff’s depression significantly limited her ability to
perform the mental demands of work activity, and determined that she did not meet the requirements
of Listing 12.04 (AR 16-17).
In addition, the record reflects that the ALJ considered the combined effects of
plaintiff’s impairments. The Social Security Act requires the agency “to consider the combined
effects of impairments that individually may be non-severe, but which in combination may constitute
a medically severe impairment or otherwise evince a claimant’s disability.” Foster v. Bowen, 853
F.2d 483, 490 (6th Cir. 1988); 20 C.F.R. § 416.923 (“In determining whether your physical or
mental impairment or impairments are of a sufficient medical severity that such impairment or
impairments could be the basis of eligibility under the law, we will consider the combined effect of
all of your impairments without regard to whether any such impairment, if considered separately,
would be of sufficient severity”). The Sixth Circuit has found that an ALJ’s analysis of a claimant’s
combined impairments sufficient where the ALJ referred to a “combination of impairments” in
deciding the claimant did not meet the listings, the ALJ referred to the claimant’s “impairments” as
not being severe enough to preclude performance of his past relevant work, the ALJ’s decision was
made after careful consideration of the “entire record,” and, all of the claimant’s impairments were

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discussed individually in the decision. See Gooch v. Secretary of Health and Human Services, 833
F.2d 589, 592 (6th Cir. 1987). “To require a more elaborate articulation of the ALJ’s thought
process would not be reasonable.” Id. The Sixth Circuit has also found that the ALJ properly
considered the combined effects of the claimant’s impairments where the ALJ’s decision referred
to the claimant’s “severe impairments” and “combination of impairments.” See Loy v. Secretary
of Health and Human Services, 901 F.2d 1306, 1310 (6th Cir. 1990). Here, the ALJ referred to the
issue as whether plaintiff was disabled under the Social Security Act “by reason of any medically
determinable physical or mental impairment or combination of impairments” (AR 13). In addition,
the ALJ referred to his consideration of plaintiff’s medically determinable impairments or
combination of impairments in evaluating her disability claim (AR 13-14, 20). The ALJ also stated
that he made his determination “[a]fter careful consideration of the entire record” (AR 15). The
ALJ’s decision indicates that he considered the combined effects of plaintiff’s impairments. See
Loy, 901 F.2d at 1310; Gooch, 833 F.2d at 592. Accordingly, plaintiff’s claim of error will be
denied.
B.

The ALJ violated the regulation requiring that
great weight be assigned to the opinions of treating
physicians and, if such weight is not to be assigned,
that good reasons be given for not doing so.

Plaintiff contends that the ALJ failed to give special consideration to her treating
psychologist and clinicians. “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

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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. § 416.927(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. §
416.927(c)(2). 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. § 416.927(c)(2) (“[w]e will always give good reasons in our notice of determination or
decision for the weight we give your treating source’s opinion”).
Here, plaintiff does not identify any particular opinion from a treating psychologist
that the ALJ failed to evaluate properly. Rather, plaintiff simply refers to the Global Assessment
of Functioning scores assigned to her by personnel at Pine Rest. Plaintiff’s Brief at pp. 10-11.
Plaintiff has failed to develop any issue for review with respect to the psychologists beyond her bald
assertions of error. “[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible

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argument in a most skeletal way, leaving the court to . . . put flesh on its bones.” McPherson v.
Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997). Accordingly, plaintiff’s claim of error must be

considered waived.
Plaintiff also contend that the ALJ erred in evaluating Dr. Brintnall’s “several
disability statements” based on the years he served as plaintiff’s treating physician. Plaintiff’s Brief
at pp. 10-11. The ALJ addressed Dr. Brintnall’s statements as follows:
The undersigned accords no significant weight to the statement issued in July 2010
from Dr. Brintnall, the claimant’s primary-care physician, in which he opined that
the claimant is '”totally disabled” and “deserves disability” (Exhibit 24f) as such is
an issue reserved to the Commissioner; he also cited no objective evidence to support
his conclusion. While such statements are considered in the evaluation of disability,
they can never be entitled to controlling weight or even special significance (SSR
96-5p).
(AR 21). Although Dr. Brintnall was a treating physician, the ALJ was not bound by the doctor’s
conclusion that plaintiff was unable to work. See 20 C.F.R. § 416.927(d)(1) ( “[a] statement by a
medical source that you are ‘disabled’ or ‘unable to work’ does not mean that [the Commissioner]
will determine that you are disabled’ ). Such statements, even by an eminent treating physician,
nevertheless constitute a legal conclusion that is not binding on the Commissioner. Crisp v.
Secretary of Health and Human Services, 790 F.2d. 450, 452 (6th Cir. 1986). The determination
of disability is the prerogative of the Commissioner, and not the doctor. See Houston v. Secretary
of Health and Human Services, 736 F.2d 365, 367 (6th Cir. 1984).

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IV. CONCLUSION
The ALJ’s determination is supported by substantial evidence. The Commissioner’s
decision will be affirmed pursuant to 42 U.S.C. § 405(g), and a judgment consistent with this
opinion shall be issued forthwith.

Dated: September 22, 2014

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

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