Vaughan v. Commissioner of Social Security

Filing 17

OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GARY L. VAUGHAN,
Plaintiff,
v.

Case No. 1:13-cv-1266
Hon. Paul L. Maloney

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 his claim for
disability insurance benefits (DIB).
Plaintiff was born on August 28, 1963 (AR 170).1 He alleged a disability onset date of July
31, 2001 (AR 170). Plaintiff completed the 12th grade, and had previous employment as a landscape
laborer, automobile detailer, janitor, construction worker, machine operator/conveyor tender, hand
packer, compression molding machine tender and roofer (AR 18, 175). He last worked in April 2000
(AR 153). Plaintiff identified his disabling conditions as a seizure disorder and back pain (AR 174). On
July 12, 2012, an Administrative Law Judge (ALJ) reviewed plaintiff’s claim de novo and entered a

1

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

decision denying benefits (AR 11-20). This decision, which was later approved by the Appeals Council,
has become the final decision of the Commissioner and is now before the Court for review.
I. LEGAL STANDARD
This court’s review of the Commissioner’s decision is typically focused on determining
whether the Commissioner's findings are supported by substantial evidence. 42 U.S.C. §405(g);
McKnight v. Sullivan, 927 F.2d 241 (6th Cir. 1990). “Substantial evidence is more than a scintilla of
evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Cutlip v. Secretary of Health & Human Services, 25 F.3d 284, 286
(6th Cir. 1994). A determination of substantiality of the evidence must be based upon the record taken
as a whole. Young v. Secretary of Health & Human Services, 925 F.2d 146 (6th Cir. 1990).
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
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which has lasted or can be expected to last for a continuous period of 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. At step one, the ALJ found that plaintiff has not
engaged in substantial gainful activity since the alleged onset date of July 31, 2001 and met the insured

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status requirements of the Social Security Act through June 30, 2009 (AR 13). At step two, the ALJ found
that through the date last insured, plaintiff suffered from severe impairments of chronic obstructive
pulmonary disease (COPD) and an anxiety disorder (AR 13). At step three, the ALJ found that through
the date last insured, 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 14).
The ALJ decided at the fourth step that through the date last insured, plaintiff had the
residual functional capacity (RFC):
. . . to perform light work as defined in 20 CFR 404.1567(b) except that he can never
climb ladders, ropes, or scaffolds; can frequently climb ramps and stairs; and can
frequently balance, stoop, kneel, crouch, crawl, and squat. He must have a sit/stand
option that enables him to change position at will. He must avoid concentrated exposure
to fumes, odors, dust, gases, or respiratory irritants. He can never use air, pneumatic,
power, torque, or vibratory tools; and can never work with dangerous or unprotected
machinery, or at unprotected heights. He is limited to simple, unskilled work with an SVP
rating of 1 or 2; he is able to understand, remember, and carry out only short, simple
instructions. He is limited to work that requires only occasional close personal contact or
interaction with coworkers, and only brief and superficial contact with the public.
(AR 15). The ALJ also found that through the date last insured, plaintiff was unable to perform any past
relevant work (AR 18).
At the fifth step, the ALJ determined that through the date last insured, plaintiff could
perform a significant number of jobs in the national economy (AR 19-20). Specifically, plaintiff could
perform the following sedentary, unskilled jobs in the relevant region, defined as the Lower Peninsula of
Michigan: hand packager (3,000 jobs); machine feeder (500 jobs); material handler (500 jobs); and
production worker (3,000 jobs) (AR 19). Accordingly, the ALJ determined that plaintiff has not been

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under a disability, as defined in the Social Security Act, from July 31, 2001 (his alleged onset date) through
June 30, 2009 (his date last insured) (AR 19-20).
III. ANALYSIS
Plaintiff raised four issues on appeal:
A.

Since the ALJ failed to even discuss, much less
consider, the side effects from the claimant’s many
medications on his ability to work, as required, was
his RFC assessment erroneously reached?

Plaintiff contends that the ALJ failed to discuss or consider the side effects of his
medication. During the administrative hearing, plaintiff testified that he gets tired easily, that he does not
have any patience, and that he naps every day (AR 40, 45-46). Plaintiff attributed this to the side effects
of his medication, stating “I think it’s my medicine that makes me tired really, a lot, you know” (AR 46).
Plaintiff also testified that he “got one of them cards” for medical marijuana, that he used marijuana “a
couple of weeks” before the administrative hearing, and that marijuana “don’t do nothing for me besides
put me to sleep” (AR 42).
Allegations of a medication’s side effects must be supported by objective medical evidence.
See Essary v. Commissioner of Social Security, 114 Fed. Appx. 662, 665-66 (6th Cir. 2004) (where
plaintiff testified that she suffered from dizziness and drowsiness as a result of her medications, the ALJ did
not err in finding that she suffered no side effects where her medical records contain no such reported side
effects to her physicians); Farhat v. Secretary of Health and Human Services, No. 91-1925, 1992 WL
174540 at * 3 (6th Cir. July 24, 1992) (“[claimant’s] allegations of the medication’s side-effects must be
supported by objective medical evidence”).

Here, plaintiff supports his claim of side effects by

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citing Allison S. Thomas, M.D., who opined that one of his medications, Niravam, relieves anxiety but
causes sedation and dizziness, and that another medication, Vicodin, relieves pain but causes drowsiness
(AR 306, 324-25).2 The ALJ discussed Dr. Thomas’ reference to the medication side effects, finding that
Dr. Thomas “reported that his medications relieve his anxiety and pain, but cause side effects of dizziness
and nausea” (AR 16-17). However, the ALJ gave the doctor’s opinion little weight (AR 17).3 In addition,
the ALJ observed that plaintiff derived a substantial benefit from Niravam without apparent side effects:
As to the claimant’s anxiety disorder, on February 6 and July 18, 2008, and again
on February 23, 2009, Dr. Thomas stated that the claimant has a history of anxiety well
controlled with Niravam. Her notes also indicate that the claimant did not have any change
in sleep pattern, depression, inability to concentrate, insomnia, or suicidal ideation or
planning. (2F/38, 47, 53)
(AR 16).
The ALJ discussed plaintiff’s “extremely high” use of prescription medication (i.e., four
Xanax a day, three Valium a day and five Vicodin a day), that plaintiff “takes Valium, Vicodin, Dilantin,
Ativan, and Lexapro, and describes side effects of fatigue, sleepiness, nausea, dizziness, headaches,
drowsiness, dry mouth, and lack of energy,” and that plaintiff tested positive for benzodiazepines,
marijuana, and opiates, which also “tends to call his credibility into question” (AR 16-18).
In summary, the ALJ discussed plaintiff’s “extremely high” use of prescription medication,
his testimony regarding medication side effects (including medical marijuana), and Dr. Thomas’ opinion

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In her brief, plaintiff refers to Dr. Thomas’ opinion that two of plaintiff’s medications, Focalin and
Niravam, cause side effects. Plaintiff’s Brief (docket no. 12, PageID # 381). The doctor’s opinion is difficult
to read, but appears to identify the two medications as Niravam and Vicodin (AR 306). This is consistent
with the doctor’s notes regarding plaintiff’s medications, which include Niravam and Vicodin, but do not
include Focalin (AR 314 and 325).
3

See discussion in § III.D., infra.

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related to the side effects of Niravam and Vicodin. However, the ALJ did not reach any conclusions as
to the extent of the side effects or as to any functional limitations which arose from these side effects. The
Commissioner must provide a statement of evidence and reasons on which the decision is based. See 42
U.S.C. § 405(b)(1). While it is unnecessary for the ALJ to address every piece of medical evidence, see
Heston, 245 F.3d at 534-35, an ALJ “must articulate, at some minimum level, his analysis of the evidence
to allow the appellate court to trace the path of his reasoning.” Diaz v. Chater, 55 F.3d 300, 307 (7th
Cir. 1995). “It is more than merely ‘helpful’ for the ALJ to articulate reasons . . . for crediting or rejecting
particular sources of evidence. It is absolutely essential for meaningful appellate review.” Hurst v.
Secretary of Health and Human Services, 753 F.2d 517, 519 (6th Cir. 1985), quoting Zblewski v.
Schweiker, 732 F.2d 75, 78 (7th Cir.1984). Here, the Court cannot “trace the path” of the ALJ’s
reasoning with respect to whether plaintiff had functional limitations from medication side effects.
Accordingly, this matter will be remanded pursuant to sentence four of 42 U.S.C. § 405(g). On remand,
the Commissioner should address the extent to which plaintiff experienced medication side effects and the
functional limitations caused by any such side effects.
B.

Did the ALJ violate SSR 96-8p in not considering
the claimant’s seizure disorder, low back disorder
and headaches on his ability to work?

Plaintiff contends that the ALJ failed to consider his seizure disorder, low back disorder,
and headaches as severe impairments. A “severe impairment” is defined as an impairment or combination
of impairments “which significantly limits your physical or mental ability to do basic work activities.” 20
C.F.R. § 404.1520(c). Upon determining that a claimant has one severe impairment the ALJ must continue
with the remaining steps in the disability evaluation. See Maziarz v. Secretary of Health & Human
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Services, 837 F.2d 240, 244 (6th Cir. 1987). Once the ALJ determines that a claimant suffers from a
severe impairment, the fact that the ALJ failed to classify a separate condition as a severe impairment does
not constitute reversible error. Maziarz, 837 F.2d at 244. An ALJ can consider such non-severe
conditions in determining the claimant’s RFC. Id. “The fact that some of [the claimant’s] impairments were
not deemed to be severe at step two is therefore legally irrelevant.” Anthony v. Astrue, 266 Fed. Appx.
451, 457 (6th Cir. 2008). Here, the ALJ found that plaintiff had severe impairments of COPD and an
anxiety disorder (AR 13). The ALJ’s failure to include other severe impairments at step two is legally
irrelevant. Id. Accordingly, plaintiff’s claim of error will be denied.
C.

Since the ALJ found that the claimant has a severe
mental impairment, did his RFC assessment
consider the full impact of this impairment?

Plaintiff contends that the ALJ’s RFC assessment did not adequately address his severe
impairment of anxiety, because the RFC did not include the ALJ’s finding that plaintiff had moderate loss
of his ability to concentrate, persist or keep pace (AR 14). 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). It 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.
The finding referred to by plaintiff (i.e., moderate loss of ability to concentrate, persist or
keep pace) was made at step three of the sequential evaluation process, during which the ALJ considered
whether plaintiff met the “paragraph B” requirement of listed impairment 12.06 (Anxiety Related Disorders)
(AR 14). This finding was not an RFC determination. See Gentry v. Commissioner of Social Security,
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741 F.3d 708, 722 (6th Cir. 2014) (RFC is determined at step four of the sequential evaluation). In
addition, the ALJ did not have to include the paragraph B finding as part of his RFC determination.
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 v. Commissioner of Social Security Administration, No. 1:13-cv-1339, 2014 WL 3389206
(N.D. Ohio July 9, 2014). See Fellows v. Commissioner of Social Security, No. 1:14-cv-506, 2015
WL 4134699 at *6 (W.D. Mich. July 8, 2015) (ALJ did not need to include paragraph B findings in the
RFC determination).
Furthermore, the ALJ’s RFC took into account plaintiff’s anxiety by limiting him:
to simple, unskilled work; to carrying out only short, simple instructions; and to work that requires only
occasional close personal contact or interaction with coworkers, and only brief and superficial contact with
the public (AR 15). 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). Accordingly, this claim of error will
be denied.
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D.

Did the ALJ fail to comply with 20 C.F.R. §
404.1527 in not according adequate weight to the
opinion of the claimant’s treating physician and did
the ALJ also fail to consider the various factors set
forth in 20 C.F.R. § 404.1527(d) in evaluating the
opinion of the treating physician?

Finally, plaintiff contends that the ALJ failed to adequately address the opinions of his
treating physician, Dr. Thomas, as set forth in a “Medical Source Statement Concerning Claimaint’s Ability
to Engage in Work Related Activities” (AR 306-09). 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 opinion is well-supported

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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”).
The ALJ summarized Dr. Thomas’ opinions as follows:
As for the opinion evidence, on June 8, 2011, Dr. Thomas opined that the claimant
has severe generalized anxiety with frequent panic attacks, and chronic, constant, moderate
low back pain with decreased range of motion. She reported that his medications relieve
his anxiety and pain, but cause side effects of dizziness and nausea. Dr. Thomas opined
that the claimant's symptoms are severe enough to interfere with his ability to stay on task
in a work situation constantly. She opined that he cannot walk even one city block without
rest or severe pain; can continuously sit or stand for twenty minutes at a time, and less than
two hours a day; and needs eight or more periods of walking around during an eight-hour
day for five minutes each. She opined that he does not need to be able to shift positions
at will, but that he would need unscheduled breaks every thirty minutes for thirty minutes.
The doctor indicated the claimant can occasionally lift less than ten pounds; would have
significant limitations doing repetitive reaching, handling, or feeling; and could only reach
5% of the time, bilaterally. He can never bend or twist at the waist. Dr. Thomas indicated
he would miss work more than three times a month. She also opined that he is
permanently disabled. (4F)
(AR 16-17).
The ALJ assigned “little weight” to Dr. Thomas’ opinion for the following reasons:
It is not consistent with, or supported by, the medical evidence of record, such as
lumbosacral x-rays, and is incredible. If the claimant needed to take a break every thirty
minutes for thirty minutes, then he would constantly be on a break. Furthermore, the
opinion of Dr. Thomas that the claimant is permanently disabled involves an issue that is
reserved to the Commissioner of Social Security, or to the Commissioner’s designees, to
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resolve pursuant to 20 CFR 404.1503, 404.1527(e), 416.903 and 416.927(e). A finding
that an individual is “disabled” or “unable to work,” is an administrative finding and is an
issue reserved to the Commissioner (20 CFR 404.1527(e)(1) and 416.927(e)(1).
Medical opinions on these issues must not be disregarded; but cannot be entitled to
controlling weight or even given special significance, even when offered by a treating
source (SSR 96-5p).
(AR 16-17).
As an initial matter, the ALJ properly addressed Dr. Thomas’ opinion that plaintiff is
“permanently disabled” (AR 309). Although Dr. Thomas 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. § 404.1527(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, by even a treating physician,
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, not the treating physician. See Houston v. Secretary of Health and Human
Services, 736 F.2d 365, 367 (6th Cir. 1984).
However, the ALJ did not give good reasons for the weight assigned to the doctor’s
opinion. See Wilson, 378 F.3d at 545. While the ALJ summarily rejected Dr. Thomas’ opinion as not
consistent with plaintiff’s lumbosacral x-rays, he did not address the x-rays, much less compare that
evidence to Dr. Thomas’ opinion (AR 16-17). Nor did the ALJ identify the other medical evidence of
record and explain how Dr. Thomas’ opinion was not consistent with that evidence (AR 16-17).
Accordingly, this matter will be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g).
On remand, the Commissioner should re-valuate Dr. Thomas’ opinion.

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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 is
directed (1) to address the extent to which plaintiff experienced medication side effects and the functional
limitations caused by any such side effects, and (2) to re-valuate Dr. Thomas’ opinion. A judgment
consistent with this opinion will be issued forthwith.

Date:

September 28, 2015

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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