Burke v. Commissioner of Social Security
Filing
19
OPINION; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, jal)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RYAN BURKE,
Plaintiff,
Hon. Ellen S. Carmody
v.
Case No. 1:13-cv-611
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
_____________________________________/
OPINION
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 August 14, 2013, the parties agreed to proceed in this Court for
all further proceedings, including an order of final judgment. (Dkt. #12).
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).
1
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.
1984).
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
2
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.
PROCEDURAL POSTURE
Plaintiff applied for DIB benefits on July 24, 2006, alleging that he had been disabled
since July 13, 2006, due to depression, joint stiffness, and back pain. (Tr. 250-54). Plaintiff was 43
years of age on his alleged disability onset date. (Tr. 250). He possesses a tenth-grade education and
worked previously as a janitor. (Tr. 21, 82). Plaintiff’s application was denied, after which time he
requested a hearing before an Administrative Law Judge (ALJ). (Tr. 115-241). On May 21, 2009,
Plaintiff appeared before ALJ Terry Miller with testimony presented by Plaintiff and a vocational
expert. (Tr. 31-76). In a written decision dated July 22, 2009, the ALJ determined that Plaintiff was
not disabled. (Tr. 123-34).
Plaintiff appealed the matter to the Appeals Council, but before a decision on such
was rendered, Plaintiff submitted an application for SSI benefits in which Plaintiff alleged that he
had been disabled since March 26, 2007. (Tr. 255-59, 265). The Appeals Council subsequently
remanded the matter for further consideration. (Tr. 135-39). On September 27, 2011, ALJ Paul
Jones conducted a second administrative hearing at which Plaintiff and a vocational expert testified.
(Tr. 77-114). In a written decision dated November 10, 2011, the ALJ determined that Plaintiff was
not disabled. (Tr. 11-23). The Appeals Council declined to review the ALJ’s determination,
rendering it the Commissioner’s final decision in the matter. (Tr. 1-4). Plaintiff subsequently
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initiated this appeal pursuant to 42 U.S.C. § 405(g), seeking judicial review of the ALJ’s decision.
Plaintiff’s insured status expired on December 31, 2009. (Tr. 13). Accordingly, to
be eligible for Disability Insurance Benefits under Title II of the Social Security Act, 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 January 22, 2006, Dr. Lawrence Domino completed a Psychiatric Review
Technique form regarding Plaintiff’s mental limitations. (Tr. 551-64). Determining that Plaintiff
suffered from depression, the doctor concluded that Plaintiff satisfied the Part A criteria for Section
12.04 (Affective Disorders) of the Listing of Impairments. (Tr. 552-60). The doctor determined,
however, that Plaintiff failed to satisfy any of the Part B criteria for this particular Listing. (Tr. 561).
Specifically, the doctor concluded that Plaintiff experienced mild restrictions in the activities of daily
living, moderate difficulties in maintaining social functioning, moderate difficulties in maintaining
concentration, persistence or pace, and never experienced extended episodes of decompensation.
(Tr. 561).
Dr. Domino also completed a Mental Residual Functional Capacity Assessment form
regarding Plaintiff’s limitations in 20 separate categories encompassing (1) understanding and
memory, (2) sustained concentration and persistence, (3) social interaction, and (4) adaptation. (Tr.
565-68). Plaintiff’s abilities were characterized as “moderately limited” in six categories. (Tr. 56566). With respect to the remaining 14 categories, however, the doctor reported that Plaintiff was
either “not significantly limited” or that there existed “no evidence of limitation.” (Tr. 565-66).
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Treatment notes dated February 15, 2006, indicate that Plaintiff was suffering from
polycythemia.1 (Tr. 343). The doctor reported that he was unable to determine whether Plaintiff was
experiencing “primary” or “secondary” polycythemia because Plaintiff had failed to stop smoking.
(Tr. 343).
On May 1, 2006, Plaintiff participated in an MRI examination of his lumbar spine the
results of which revealed “small central L5-S1 disc protrusion without root compression or spinal
stenosis.” (Tr. 373). X-rays of Plaintiff’s right knee, left knee, right shoulder, left shoulder, and
bilateral hips, taken May 23, 2006, were all “normal.” (Tr. 363-67). Treatment notes dated May 24,
2006, indicate that Plaintiff was again “advised to quit smoking” because such was negatively
impacting his polycythemia. (Tr. 342).
On June 16, 2006, Plaintiff was examined by Dr. Satish Solanki (Tr. 353-54).
Plaintiff reported that he was experiencing pain in his knees, shoulders, and lower back which
“usually ranges 8 to 9 out of 10.” (Tr. 353). A musculoskeletal examination revealed the following:
His gait was normal and stable. Grip strength is normal in both
hands. Muscle power is normal in proximal and distal muscle
groups. He is able to get up from the chair and climb upon the exam
table without any difficulty. He has no palpable synovitis over his
hands, wrists, elbows, ankle, feet, or knee joints. There is no
abnormal joint effusion. He complained of tenderness upon palpation
mainly over the left shoulder and around both knees. Left shoulder
is also having mild crepitations and passive abduction of the shoulder
is associated with the pain after taking the arm above the shoulder
level. Rest of the musculoskeletal exam is unremarkable.
(Tr. 353).
1
Polycythemia (or polycythemia vera) is “a slow-growing type of blood cancer in which your bone marrow
makes too many red blood cells.” See Polycythemia vera, available at
http://www.mayoclinic.org/diseases-conditions/polycythemia-vera/basics/definition/con-20031013 (last visited on
September 22, 2014). Polycythemia vera “isn’t common” and “[w]ithout treatment, polycythemia vera can be lifethreatening.” However, “with proper medical care, many people experience few problems related to this disease.” Id.
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The results of various laboratory tests, including a rheumatoid factor test, were
negative. (Tr. 353). The doctor concluded as follows:
Polyarthralgias, which is mainly psychosomatic in nature. As per the
clinical examination and the lab tests, there is no evidence suggestive
of underlying inflammatory condition. His fatigue is most likely due
to insomnia, which is again associated with psychosomatic condition.
Other possibility could be obstructive sleep apnea syndrome for
which he should be worked up and that is deferred to his primary care
provider. Degenerative disk disease of lumbosacral spine for which
he is being seen by the neurosurgeon. Possible left shoulder
tendonitis.
(Tr. 354).
On October 27, 2006, Blaine Pinaire, Ph.D. completed a Psychiatric Review
Technique form regarding Plaintiff’s mental limitations. (Tr. 492-505). Determining that Plaintiff
suffered from depressive disorder, the doctor concluded that Plaintiff satisfied the Part A criteria for
Section 12.04 (Affective Disorders) of the Listing of Impairments. (Tr. 493-501). The doctor
determined, however, that Plaintiff failed to satisfy any of the Part B criteria for this particular
Listing. (Tr. 502). Specifically, the doctor concluded that Plaintiff experienced moderate restrictions
in the activities of daily living, moderate difficulties in maintaining social functioning, moderate
difficulties in maintaining concentration, persistence or pace, and never experienced extended
episodes of decompensation. (Tr. 502).
Dr. Pinaire also completed a Mental Residual Functional Capacity Assessment form
regarding Plaintiff’s limitations in 20 separate categories encompassing (1) understanding and
memory, (2) sustained concentration and persistence, (3) social interaction, and (4) adaptation. (Tr.
488-91). Plaintiff’s abilities were characterized as “moderately limited” in six categories. (Tr. 48889). With respect to the remaining 14 categories, however, the doctor reported that Plaintiff was
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“not significantly limited.” (Tr. 488-89).
On September 15, 2008, Dr. V. Puri completed an assessment of Plaintiff’s physical
residual functional capacity. (Tr. 584-86). The doctor reported that Plaintiff can “occasionally”
lift/carry 5 to 10 pounds. (Tr. 584). The doctor reported that during an 8 hour day, Plaintiff can
stand/walk and sit for 60 to 90 minutes each. (Tr. 585). The doctor reported that Plaintiff would
“very frequently. . .need to take unscheduled breaks/rest periods during the day” and, moreover,
would be absent from work “about 3 days per month “as a result of [his] impairments or treatment.”
(Tr. 585).
On October 22, 2008, Plaintiff was examined by Dr. Norbert Anderson. (Tr. 619-20).
The results of a mental status examination were as follows:
He is alert and oriented to person, place, time, and situation. He
appears to have at least average intelligence, but his mood is very
dysthymic and anxiety is always present to the point of agoraphobia
because he just avoids people, he cannot stand to even be around his
brain-damaged brother in the mobile home. He speaks in a
monotone, but otherwise he is easily understood. He speaks clearly
and coherently and there is no evidence of psychosis. He has severe
hopelessness and helplessness and this man currently had a suicidal
plan because he states he thinks that his granddaughter and he can
generally get pas[t] it even though he is essentially homeless and
helpless and without any resources. He does have some anxiety and
has a large amount of unresolved grief.
Presently, I am sure that I am (sic) note in this file as he walks
painfully and with difficulty and he takes pain medications and Xanax
regularly in controlled doses and it helps to decrease his pain, but it
certainly does not take it away. He has a CPAP machine for his sleep
apnea and he said it is very uncomfortable, but he stays with it
because, he feels, it will keep him alive.
(Tr. 619).
Plaintiff was diagnosed with major depression, recurrent and severe, with an impulse
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control disorder. (Tr. 620). The doctor also reported that Plaintiff “has anxiety disorder with panic
attacks and apparent agoraphobia avoiding all social contacts.” (Tr. 620). Plaintiff’s GAF score was
rated as 50.2 (Tr. 620).
On September 27, 2010, Plaintiff participated in a CT examination of his lumbar
spine the results of which revealed “multilevel degenerative changes” as well as “central canal
stenosis from L3-4 to L5-S1” with “no impingement of exiting or traversing nerve roots.” (Tr. 648).
On November 16, 2010, Plaintiff participated in an MRI examination of his lumbar spine the results
of which revealed “moderate-to-severe bilateral L5 neuroforaminal stenosis, which may be
compressing both L5 nerve roots.” (Tr. 751).
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).3 If the Commissioner can make a
2
The Global Assessment of Functioning (GAF) score refers to the clinician’s judgment of the individual’s
overall level of functioning. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders
32 (4th ed. 1994) (hereinafter DSM-IV). A GAF score of 50 indicates that the individual is experiencing “serious
symptoms or any serious impairment in social, occupational, or school functioning.” DSM-IV at 34.
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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.
404.1520(c));
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)).
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dispositive finding at any point in the review, no further finding is required. See 20 C.F.R. §§
404.1520(a), 416.920(a). 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
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 suffered from: (1) arthritis; (2) degenerative disc
disease of the lumbar spine; (3) polycythemia vera; (4) splenectomy, status post 1981 motor vehicle
accident; and (5) depression, 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. 13-15).
With respect to Plaintiff’s residual functional capacity, the ALJ determined that
Plaintiff retained the capacity to perform sedentary work subject to the following limitations: (1) he
can occasionally perform pushing/pulling activities with his lower extremities; (2) he can
occasionally climb, balance, stoop, kneel, crouch, and crawl; (3) he can occasionally perform
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overhead reaching with his right dominant upper extremity; (4) he can frequently perform gross and
fine manipulation activities with his upper extremities; (5) he must avoid concentrated exposure to
hazards, operating or controlling moving machinery, or working at unprotected heights; (6) he can
perform simple, routine, and repetitive tasks with occasional changes in the work setting; and (7) he
can perform work that is isolated with only occasional supervision. (Tr. 15).
The ALJ determined 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 lower peninsula of Michigan
approximately 6,000 jobs which an individual with Plaintiff’s RFC could perform, such limitations
notwithstanding. (Tr. 88-110). 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.
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1, 2006).
I.
The ALJ’s Assessment of the Medical Opinion Evidence is Not Supported by
Substantial Evidence
As noted above, Dr. Puri opined that Plaintiff was, from an exertional standpoint,
limited to a slightly greater extent than recognized by the ALJ. As discussed below, Dr. Marianne
Osentoski, on several occasions, offered opinions regarding Plaintiff’s non-exertional limitations that
indicate that Plaintiff was more limited than recognized by the ALJ. Plaintiff asserts that he is
entitled to relief because the ALJ did not provide sufficient rationale for affording less than
controlling weight to these opinions.
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
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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.
12
2007); Undheim v. Barnhart, 214 Fed. Appx. 448, 450 (5th Cir., Jan. 19, 2007).
A.
Dr. Puri
The ALJ agreed with Dr. Puri that Plaintiff was limited to the performance of a
limited range of sedentary work. Nevertheless, to the extent that Dr. Puri opined that Plaintiff was
more limited than articulated in his RFC, the ALJ afforded “little weight” to such. (Tr. 16). The
ALJ determined that Dr. Puri’s opinions were inconsistent with the medical record as a whole
including the doctor’s own contemporaneous treatment notes. This determination is supported by
substantial evidence.
B.
Dr. Osentoski
On four occasions between February 5, 2008, and March 29, 2011, Dr. Osentoski
completed an assessment of Plaintiff’s mental residual functional capacity. (Tr. 692-93, 695-96,
730-31, 817-18). Each of these reports assessed Plaintiff’s limitations in 20 separate categories
encompassing: (1) understanding and memory; (2) sustained concentration and persistence; (3) social
interaction; and (4) adaptation.
In her initial assessment, Dr. Osentoski reported that Plaintiff was “moderately
limited” in 15 categories, “markedly limited” in two categories, and “not significantly limited” in
three categories. (Tr. 817-18). In her May 23, 2008, and October 14, 2009 assessments, the doctor
concluded that Plaintiff was “moderately limited” in six categories and “markedly limited” in 14
categories. (Tr. 695-96, 730-31). In her March 29, 2011 assessment, the doctor concluded that
Plaintiff was “moderately limited” in four categories and “markedly limited” in 16 categories. (Tr.
13
692-93). These assessments defined “moderately limited” as “the individual’s capacity to perform
the activity is impaired.” (Tr. 692, 695, 730, 817). These assessments defined “markedly limited”
as “the individual cannot usefully perform or sustain the activity.” (Tr. 692, 695, 730, 817).
While there existed minor variations between these latter three assessments, in all
three assessments the doctor concluded that Plaintiff was “markedly limited” in the following areas:
(1) the ability to maintain attention and concentration for extended periods; (2) the ability to work
in coordination with or proximity to others without being distracted by them; (3) the ability to
complete a normal workday and workweek without interruptions from psychologically based
symptoms and to perform at a consistent pace without an unreasonable number and length of rest
periods; (4) the ability to interact appropriately with the general public; (5) the ability to get along
with coworkers or peers without distracting them or exhibiting behavioral extremes; (6) the ability
to maintain socially appropriate behavior and to adhere to basic standards of neatness and
cleanliness; and (7) the ability to respond appropriately to change in the work setting. (Tr. 692-93,
695-96, 730-31).
In its remand order, the Appeals Council specifically instructed the ALJ to properly
consider Dr. Osentoski’s opinions because she was Plaintiff’s “treating physician.” (Tr. 137-38).
While the ALJ acknowledged the aforementioned evidence, the ALJ failed to properly assess such.
As noted above, if the ALJ affords less than controlling weight to a treating physician’s opinion he
is required to determine the weight to be afforded such. The ALJ failed to indicate what weight (if
any) he afforded Dr. Osentoski’s opinions. Instead, the ALJ identified limited and discrete portions
of the doctor’s opinions with which he agreed and simply disregarded the fact that the majority of
the doctor’s opinions are simply inconsistent with his RFC determination. The closest that the ALJ
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came to analyzing Dr. Osentoski’s opinions was his suggestion that the doctor’s opinions are
somehow unreasonably inconsistent. This interpretation is not supported by the evidence. Rather,
as discussed above, the doctor’s opinions reflect her assessment that Plaintiff’s condition deteriorated
over time. Moreover, as discussed above, the doctor’s opinions are actually quite consistent with
respect to the general limitations which Plaintiff experiences. In sum, the ALJ improperly
discounted Dr. Osentoski’s opinions because he did so without providing any reasoning or rationale
in support thereof.
II.
The ALJ Considered Plaintiff’s Impairments and Properly Assessed Plaintiff’s
Credibility
Plaintiff next argues that the ALJ failed to consider that he suffers from fibromyalgia
and experiences pain. It is clear from the ALJ’s decision that he considered all of the evidence of
record. This argument is, therefore, rejected. Plaintiff also argues that the ALJ improperly
discounted his subjective allegations. As the ALJ observed, however, the objective medical evidence
was inconsistent with Plaintiff’s subjective allegations of disabling limitations, a sufficient rationale
for discounting Plaintiff’s subjective allegations. See King v. Heckler, 742 F.2d 968, 974 (6th Cir.
1984); Workman v. Commissioner of Social Security, 105 Fed. Appx. 794, 801 (6th Cir., July 29,
2004); Ritchie v. Commissioner of Social Security, 540 Fed. Appx. 508, 511-12 (6th Cir., Oct. 4,
2013) (“an administrative law judge’s credibility findings are virtually unchallengeable”).
III.
Remand is Appropriate
While the Court finds that the ALJ’s decision fails to comply with the relevant legal
15
standards, Plaintiff can be awarded benefits only if proof of her 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. Accordingly, the Commissioner’s decision must be
reversed and this matter remanded for further factual findings.
CONCLUSION
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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