Werkema v. Commissioner of Social Security

Filing 15

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

JOANN D. WERKEMA,
Plaintiff,
v.

Case No. 1:13-cv-646
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 disability insurance benefits (DIB).
Plaintiff was born on October 2, 1956 (AR 144).1 She alleged a disability onset date
of October 5, 2009 (AR 144). Plaintiff had four or more years of college, with previous employment

as a computer operator at a hospital and a school teacher (AR 157). Plaintiff identified her disabling
conditions as bipolar II, anxiety and a cognitive disorder (AR 156). The administrative law judge
(ALJ) reviewed plaintiff’s claim de novo and entered a written decision denying benefits on March
2, 2012 (AR 21-30). 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. § 404.1505; 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).
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 had not engaged in substantial gainful activity since the alleged onset
date of October 5, 2009, and that she met the insured status requirements of the Social Security Act

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through December 31, 2014 (AR 23). At the second step, the ALJ found that plaintiff had the
following severe impairments: a left shoulder disorder; depression; and a cognitive disorder (AR 23).
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 24). Specifically, plaintiff did not meet the requirements of Listings 1.02
(major dysfunction of a joint), 12.02 (organic mental disorders), or 12.04 (affective disorders) (AR
24).
The ALJ decided at the fourth step that plaintiff:
. . . has the residual functional capacity to perform a full range of work at all
exertional levels but with the following nonexertional limitations: The claimant is
restricted to only occasional overhead reaching with the left upper extremity. In
addition, she is limited to simple unskilled work with an SVP rating of 1 or 2; and
can understand, remember, and carry out only short simple instructions. She is also
limited to routine work that does not involve frequent significant changes or
adaptations, and work that does not involve meeting production quotas or goals or
keeping pace with co-workers.
(AR 25). The ALJ also found that plaintiff was unable to perform any past relevant work (AR 28).

At the fifth step, the ALJ determined that plaintiff could perform a significant number
of unskilled work at all exertional levels (AR 28). Specifically, plaintiff could perform the following
work in the lower peninsula of Michigan: bench handler (medium exertional level) (10,000 jobs);
assembly work (medium exertional level) (10,000 jobs); ticket seller (light exertional level) (3,000
jobs); machine operator (light exertional level) (2,500 jobs); order clerk (light exertional level)
(5,000 jobs); bench handler (light exertional level) (5,000 jobs); and assembly worker (light
exertional level (5,000 jobs) (AR 29). Accordingly, the ALJ determined that plaintiff has not been
under a disability, as defined in the Social Security Act, from October 5, 2009 (the alleged onset
date) through March 2, 2012 (the date of the decision) (AR 30).

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III. ANALYSIS
Plaintiff raised three issues on appeal:
A.

The ALJ’s step 3 determination and conclusions
are not supported by substantial evidence.

Plaintiff contends that the ALJ did not properly consider her bipolar disorder as
meeting or equaling Listing 12.04.2 A claimant bears the burden of demonstrating that he meets or
equals a listed impairment at the third step of the sequential evaluation. Evans v. Secretary of
Health & Human Services, 820 F.2d 161, 164 (6th Cir.1987). In order to be considered disabled
under the Listing of Impairments, “a claimant must establish that his condition either is permanent,
is expected to result in death, or is expected to last at least 12 months, as well as show that his
condition meets or equals one of the listed impairments.” Id. An impairment satisfies the listing
only when it manifests the specific findings described in the medical criteria for that particular
impairment. 20 C.F.R. § 404.1525(d). A claimant does not satisfy a particular listing unless all of
the requirements of the listing are present. See Hale v. Secretary of Health & Human Services, 816
F.2d 1078, 1083 (6th Cir.1987). See, e.g., Thacker v. Social Security Administration, 93 Fed.Appx.
725, 728 (6th Cir 2004) (“[w]hen a claimant alleges that he meets or equals a listed impairment, he
must present specific medical findings that satisfy the various tests listed in the description of the
applicable impairment or present medical evidence which describes how the impairment has such
equivalency”). If a claimant successfully carries this burden, the Commissioner will find the

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Plaintiff concedes that the ALJ’s failure to identify bipolar disorder as a severe impairment is
harmless error. Plaintiff’s Brief at pp. 11-12. See Anthony v. Astrue, 266 Fed. Appx. 451, 457 (6th Cir. 2008)
(the fact that some of a claimant’s impairments were not deemed to be severe at step two is “legally
irrelevant”).

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claimant disabled without considering the claimant’s age, education and work experience. 20 C.F.R.
§ 404.1520(d).
Here, the ALJ found that plaintiff failed to meet either the “paragraph B” or
“paragraph C” criteria of Listing 12.04 (AR 24). In reaching this determination, the ALJ pointed
out that his reasons for the findings “will be further explained in evaluating the claimant’s residual
functional capacity” (AR 24). In this regard, the ALJ did provide such an explanation which was
sufficient to support his findings at step three (AR 25-28). The ALJ’s method of addressing the
Listings was not error requiring reversal. As the Court observed in Bledsoe v. Barnhart, 165 Fed.
Appx. 408 (6th Cir. 2006):
Bledsoe’s argument that the ALJ should spell out the weight he gave to each
factor in his step three analysis is not supported by case law. Requiring a heightened
articulation standard would be inconsistent with this court’s rulings. In a case that
turned on step three analysis, where the disability claimant had multiple medical
problems, this court noted, “the ALJ’s findings of fact should not be disturbed unless
we are persuaded that his findings are legally insufficient.” Dorton v. Heckler, 789
F.2d 363, 367 (6th Cir.1986). Dorton supports the proposition that there is no
heightened articulation standard where the ALJ’s findings are supported by
substantial evidence. Id. In the instant case the ALJ’s factual findings are supported
by substantial evidence. The plain language of the ALJ’s opinion states that he
considered all impairments. The ALJ thus considered all evidence as required by the
regulation.
Bledsoe, 165 Fed. Appx. at 411.
Furthermore, it is plaintiff’s burden to establish that she met a particular Listing. See
Evans, 820 F.2d at 164. Here, plaintiff does not demonstrate that she met the criteria of Listing
12.04. Rather, plaintiff simply speculates that it is “possible that the medical evidence” meets or
equals a listed impairment. Plaintiff’s Brief at p. 14. Accordingly, plaintiff’s claim of error will be
denied.

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B.

The ALJ failed to properly account for plaintiff’s
“moderate” concentration, persistence, and pace
limitations in his RFC assessment and
corresponding hypothetical questions to the VE.

Plaintiff contends that the ALJ erred because although he determined at step three
that plaintiff had “moderate” limitations in maintaining concentration, persistence or pace, the ALJ
did not include these limitations in plaintiff’s residual functional capacity (RFC). RFC is a medical
assessment of what an individual can do in a work setting in spite of functional limitations and
environmental restrictions imposed by all of his medically determinable impairments. 20 C.F.R. §
404.1545. RFC is defined as “the maximum degree to which the individual retains the capacity for
sustained performance of the physical-mental requirements of jobs” on a regular and continuing
basis. 20 C.F.R. Part 404, Subpt. P, App. 2, § 200.00(c).
As an initial matter, the finding referred to by plaintiff was made at step three of the
sequential evaluation process when the ALJ was required to determine whether plaintiff met the
“paragraph B” requirements of Listing 12.02 and 12.04 (AR 24). This finding was not an RFC
finding made at step four.

See 20 CFR Pt. 404, Subpt. P, App. 1, 12.00.A. (“RFC is a

multidimensional description of the work-related abilities you retain in spite of your medical
impairments. An assessment of your RFC complements the functional evaluation necessary for
paragraphs B and C of the listings by requiring consideration of an expanded list of work-related
capacities that may be affected by mental disorders when your impairment(s) is severe but neither
meets nor is equivalent in severity to a listed mental disorder”).
The court discussed a similar issue in Pinkard v. Commissioner of Social Security
Administration, No. 1:13-cv-1339, 2014 WL 3389206 (N.D. Ohio July 9, 2014), explaining the

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difference between the findings made at step three to determine whether a claimant met the
requirements of a particular listed impairment and the RFC determination made at step four:
Next, Plaintiff argues that the ALJ erred in concluding that Plaintiff had
moderate difficulties in concentration, persistence, and pace, while failing to include
an appropriate limitation for these difficulties in the RFC findings. . . Plaintiff
refers to the ALJ’s paragraph B findings in his evaluation of Plaintiff’s depression
under 12.04 of the listing of impairments []. 20 C.F.R. pt. 404, subpt. P, app. 1
Sections 12.04, 12.05, 12.06. However, the ALJ does not have to include paragraph
B finding[s] in his RFC finding. Paragraph B findings under the listings are findings
at step three of the sequential evaluation process, and are not RFC findings
pertaining to steps four and five of the sequential evaluation process. 20 C.F.R. pt.
404, subpt. P, app. 1, Section 12.00. Hence, the ALJ was correct in finding that
Plaintiff had moderate limitations in evaluating her mental impairment under the
listings at step three of the sequential evaluation process, and in not including a
“moderate limitation in concentration, persistence, and pace” in his residual
functional capacity finding at steps four and five.
Pinkard, 2014 WL 3389206 at *10.
In addition, the ALJ’s RFC took into account plaintiff’s nonexertional limitations by
limiting her to simple unskilled work, which required her to understand, remember, and carry out
only short simple instructions, and limited her to routine work that did not involve frequent
significant changes or adaptations, meeting production quotas or goals, or keeping pace with
co-workers (AR 25). Unskilled work, by definition, incorporates some non-exertional components,

consisting of “work which needs little or no judgment to do simple duties that can be learned on the
job in a short period of time.” 20 C.F.R. § 404.1568(a). Such work involves simple and routine
tasks. Allison v. Apfel, No. 99-4090, 2000 WL 1276950 at *4 (6th Cir. Aug. 30, 2000). See
generally, Smith v. Halter, 307 F.3d 377, 378-79 (6th Cir. 2001) (where ALJ found that claimant
“often” suffered problems with concentration, limiting claimant to jobs that are routine and low
stress and which do not involve intense interpersonal confrontations appropriately addressed that
impairment). The vocational expert (VE) identified unskilled jobs consistent with this RFC (AR 698

71). According, plaintiff’s claim of error regarding the ALJ’s procedure for determining the RFC
will be denied.
C.

The ALJ failed to follow the treating physician
rule in evaluating the medical source statement of
Dr. Thebert.

Plaintiff contends that the ALJ’s decision to assign limited weight to her treating
psychiatrist, Michael Thebert, M.D., is not supported by evidence and failed to give good reasons
for this determination. A treating physician’s medical opinions and diagnoses are entitled to great
weight in evaluating plaintiff's alleged disability. Buxton v. Halter, 246 F.3d 762, 773 (6th Cir.
2001). “In general, the opinions of treating physicians are accorded greater weight than those of
physicians who examine claimants only once.” Walters v. Commissioner of Social Security, 127
F.3d 525, 529-30 (6th Cir. 1997). “The treating physician doctrine is based on the assumption that
a medical professional who has dealt with a claimant and his maladies over a long period of time will
have a deeper insight into the medical condition of the claimant than will a person who has examined
a claimant but once, or who has only seen the claimant’s medical records.” Barker v. Shalala, 40
F.3d 789, 794 (6th Cir. 1994). See 20 C.F.R. § 404.1527(c)(2) (“Generally, we give more weight to
opinions from your treating sources, since these sources are likely to be the medical professionals
most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring
a unique perspective to the medical evidence that cannot be obtained from the objective medical
findings alone or from reports of individual examinations, such as consultative examinations or brief
hospitalizations”).

Under the regulations, a treating source’s opinion on the nature and severity of a
claimant’s impairment must be given controlling weight if the Commissioner finds that: (1) the

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opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques; and
(2) the opinion is not inconsistent with the other substantial evidence in the case record.

See

Gayheart v. Commissioner of Social Security, 710 F.3d 365, 375 (6th Cir. 2013); 20 C.F.R. §
404.1527(c)(2). Finally, the ALJ must articulate good reasons for not crediting the opinion of a
treating source. See Wilson v. Commissioner of Social Security, 378 F.3d 541, 545 (6th Cir. 2004);
20 C.F.R. § 404.1527(c)(2) (“[w]e will always give good reasons in our notice of determination or
decision for the weight we give your treating source’s opinion”).
Plaintiff’s treating psychiatrist, Dr. Thebert, prepared a mental residual functional
capacity (RFC) assessment on January 5, 2012 (AR 447-49). In that assessment, the doctor found
that plaintiff’s ability to function was extremely restricted (i.e., “extremely limited”) in the following
areas: understand and remember detailed instructions; perform activities within a schedule, maintain
regular attendance, and be punctual within customary tolerances; sustain an ordinary routine with
minimal supervision; and be aware of normal hazards and take appropriate precautions (AR 447-48).
In addition, plaintiff’s ability to function was seriously restricted (i.e., “markedly limited”) in the
following areas: remember locations and work-like procedures; understand and remember
moderately detailed instructions; carry out moderately detailed instructions; carry out detailed
instructions; maintain attention and concentration for extended periods of time; make ordinary workrelated decisions; complete a normal workday and workweek without interruptions from
psychologically based symptoms, and perform at a consistent pace without an unreasonable number
and length of rest periods; and respond appropriately to changes in the work setting (AR 447-48).
Dr. Thebert summarized his evaluation as follows:

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Joann had problems on her job as a teacher. Left a child in a classroom
alone, left a child outside for recess. School noted these changes in long-term
teacher and she was removed from her job.
Workup revealed an unexpectedly low IQ and other issues leading to a
diagnosis of cognitive disorder NOS. Doesn’t quite fit diagnosis of dementia at this
time.
She also has bipolar disorder that is in good control with treatment.
Disability due to cognitive impairment.
(AR 449).
The ALJ evaluated Dr. Thebert’s opinions as follows:
On January 5, 2012, Dr. Thebert completed a mental residual functional
capacity assessment report in which he concluded that the claimant had marked and
extreme limitations in the areas of understanding and memory and adaptation due to
a cognitive disorder. Dr. Thebert indicated the claimant was disabled due to her
cognitive impairment. He also noted the claimant had a bipolar disorder with good
control with treatment (Exhibit 12F).
. . . I also assign limited weight to the January 5, 2012 mental residual
functional capacity assessment of Dr. Thebert, the claimant’s current
psychotherapist. His findings that the claimant has “marked” limitations in eight
categories, and “extreme” limitations in four other categories appear to overstate
significantly the extent of the claimant’s mental limitations, and are not consistent
with, or supported by, either Dr. Thebert’s progress notes or other treatment records.
Dr. Thebert’s assessment appears to have been performed specifically for use at the
claimant’s disability hearing. There were several progress reports of Dr. Thebert
indicating the claimant’s general stable condition. In a March 12, 2009 progress
note, it was reported the claimant’s condition had improved with treatment. She
seemed more hopeful and had some lifting of her mood. She was friendly with no
signs of hallucinations, delusions, bizarre behaviors, or other indicators of psychotic
process. Her associations were intact, her thinking was logical, and her thought
content was appropriate with no signs of anxiety. A February 25, 2010 progress note
reported improving and stable condition. On November 18, 2010, it was reported
that the claimant’s condition had not changed, and the plan was to continue with the
same treatment regime. Similarly, a January 13, 2011 progress note report indicated
that the claimant’s mood was stable, she was sleeping well, and there was no
psychosis. She was tolerating her current treatment. The claimant’s July 13, 2011
routine general medical examination report by Binisa B. Shah, M.D. indicated that
the claimant had no problems with the review of her system. Her physical
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examination was normal with appropriate mood and affect and no thought disorder.
Her depressive disorder was found to be in partial to unspecified remission (Exhibits
1F, 6F, 9F, 11F, and 12F).
(AR 26-27).
Plaintiff contends that the ALJ failed to properly evaluate Dr. Thebert’s opinion
because he did not consider plaintiff’s nearly monthly visits with the doctor since 2006 (AR 224-82,
334-58, 395-422). While Dr. Thebert found plaintiff’s bipolar disorder under control, he expressed
concerns regarding her cognitive deficits and possible early dementia. The medical record reflects
that Dr. Thebert observed plaintiff’s cognitive mental condition deteriorating over time. On May
6, 2010, the doctor noted that plaintiff had “[j]ust signed papers to accept termination [of her
teaching position] and going on long term disability due to this illness not being able to be stable
enough to allow working” (AR 235). On August 12, 2010, plaintiff stated that her memory was
worse and that according to her daughter, she was “doing ‘weird things’” (AR 231). On August 26,
2010, Dr. Thebert found no change in plaintiff’s cognitive status, but noted “[s]till possible mild
cognitive deficits” (AR 230). On November 18, 2010, Dr. Thebert noted that there had been no
change in plaintiff’s cognitive status, but planned to have additional neuropsych testing (AR 226).
On January 13, 2011, Dr. Thebert noted that with respect to plaintiff’s cognitive condition, plaintiff
“had new neuropsych testing that shows a worsening and possible early dementia” (AR 224, 408).
Based on this record, the ALJ did not give good reasons for the weight assigned to
Dr. Thebert’s January 5, 2012 RFC assessment. See Wilson, 378 F.3d at 545. However, “an
agency’s violation of its procedural rules will not result in reversible error absent a showing that the
claimant has been prejudiced on the merits or deprived of substantial rights because of the agency’s
procedural lapses.” Id. at 546-47. As the party attacking the agency’s determination, plaintiff has

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the burden of establishing that the error was harmful. See Shinseki v. Sanders, 556 U.S. 396, 409-10
(2009). Here, plaintiff has met that burden. Dr. Thebert’s treatment relationship with plaintiff
lasted approximately five years. Recent records suggest that plaintiff’s condition declined in 2010.
While the ALJ’s decision referred to the positive aspects of plaintiff’s January 13, 2011
examination, he did not address Dr. Thebert’s negative findings with respect to plaintiff’s cognitive
disorder, i.e., that plaintiff had a worsening condition and possible early dementia. In addition, it
appears that Dr. Thebert opined that plaintiff lost her teaching position due to cognitive problems.

IV. CONCLUSION
For the reasons discussed, the Commissioner’s decision will be REVERSED and
REMANDED pursuant to sentence four of 42 U.S.C. § 405(g). On remand, the Commissioner
should re-evaluate Dr. Thebert’s treatment records and the doctor’s January 5, 2012 RFC
assessment. A judgment consistent with this opinion will be issued forthwith.

Dated: September 22, 2014

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

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