Cummins v. Commissioner of Social Security

Filing 17

OPINION; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, jal)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JENNIFER CUMMINS,
Plaintiff,

Hon. Ellen S. Carmody

v.
Case No. 1:14-cv-354
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 Supplemental Security Income (SSI) benefits under Title XVI of the Social Security Act. On
June 26, 2014, the parties agreed to proceed in this Court for all further proceedings, including an
order of final judgment. (Dkt. #11).
Section 405(g) limits the Court to a review of the administrative record and provides
that if the Commissioner’s decision is supported by substantial evidence it shall be conclusive. The
Commissioner has found that Plaintiff is not disabled within the meaning of the Act. For the reasons
stated below, the Court concludes that the Commissioner’s decision is supported by substantial
evidence. Accordingly, the Commissioner’s decision is affirmed.

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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 interference.
See Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (citation omitted). This standard affords
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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 was 32 years of age on her alleged disability onset date. (Tr. 101). She
possesses a tenth grade education and worked previously as a customer service representative,
secretary/receptionist, and babysitter. (Tr. 19, 28). Plaintiff applied for benefits on August 20, 2010,
alleging that she had been disabled since April 1, 2009, due to scoliosis, placement of spinal rods,
and partial hip removal. (Tr. 101-04, 115). Plaintiff’s application was denied, after which time she
requested a hearing before an Administrative Law Judge (ALJ). (Tr. 53-100). On May 18, 2012,
Plaintiff appeared before ALJ Jonathan Stanley with testimony being offered by Plaintiff and a
vocational expert. (Tr. 22-52). In a written decision dated May 23, 2012, the ALJ determined that
Plaintiff was not disabled. (Tr. 12-21). The Appeals Council declined to review the ALJ’s
determination, rendering it the Commissioner’s final decision in the matter. (Tr. 1-4). Plaintiff
initiated this pursuant to 42 U.S.C. § 405(g), seeking judicial review of the ALJ’s decision.

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).1 If the Commissioner can make a
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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.

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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 she can satisfy her burden by demonstrating that her impairments are so severe that she is unable
to perform her previous work, and cannot, considering her 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 her 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) lumbar spine and thoracic spine
scoliosis status post implantation of Harrington rods, and (2) cervical spine degenerative disc
disease, severe impairments that whether considered alone or in combination with other

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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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. 14-15). With respect to
Plaintiff’s residual functional capacity, the ALJ determined that Plaintiff retained the capacity to
work subject to the following limitations: (1) she can lift/carry 20 pounds occasionally and 10
pounds frequently; (2) during an 8-hour workday, she can stand/walk and sit for six hours each; (3)
she can occasionally balance, kneel, stoop, crouch, crawl, and climb ramps/stairs; and (4) she must
avoid concentrated exposure to temperature extremes and vibrations to the body. (Tr. 15).
A vocational expert testified that if limited to the extent reflected by her RFC,
Plaintiff would still be able to perform her past relevant work. (Tr. 42-44). The vocational expert
further testified that even Plaintiff were further limited to the performance of sedentary work, there
still existed more than 150,000 jobs in the national economy which Plaintiff would be able to
perform. (Tr. 45-46). Accordingly, the ALJ concluded that Plaintiff was not entitled to disability
benefits.

I.

The ALJ’s RFC Determination
As noted above, the ALJ concluded that Plaintiff retained the ability to perform a

range of light work. Plaintiff argues that the ALJ’s RFC determination is not supported by
substantial evidence. The Court disagrees.
Plaintiff suffered scoliosis as a child eventually undergoing a “Harrington rod spine
fusion.”2 (Tr. 211). X-rays of Plaintiff’s lumbar spine, taken December 28, 2009, revealed that the

2

A Harrington rod is “a surgical implant used to stretch the spine in order to correct abnormal curvature.” See
Harrington Rod, available at http://www.spine-health.com/glossary/harrington-rod (last visited on June 8, 2015).

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“heights and alignments of the lumbosacral vertebrae are within normal limits” with no evidence of
fracture or dislocation. (Tr. 202). A December 2, 2009 CT scan of Plaintiff’s cervical spine revealed
that the “disk spaces were well maintained” with “no evidence of a disk herniation.” (Tr. 205). A
September 30, 2010 examination revealed “no kyphosis or scoliosis” and “good range of motion.”
(Tr. 213). The doctor concluded that Plaintiff was experiencing myofascial pain for which physical
therapy was recommended. (Tr. 213). Plaintiff subsequently participated in physical therapy
reporting improvement in her symptoms. (Tr. 242-59, 281-307, 320-21). November 18, 2011 x-rays
of Plaintiff’s cervical, thoracic, and lumbar spine were unremarkable. (Tr. 352-54). The conclusion
that Plaintiff can perform a limited range of light work is consistent with the medical evidence. The
Court, therefore, finds that the ALJ’s RFC determination is supported by substantial evidence.
Accordingly, this argument is rejected.

II.

Dr. Neil See’s Opinions
On three occasions between June 15, 2011, and May 5, 2012, Dr. Neil See offered

opinions regarding Plaintiff’s ability to perform work activities. (Tr. 323-25, 336-40, 368). The ALJ
afforded “little weight” to Dr. See’s opinions. (Tr. 18-19). Plaintiff asserts that because Dr. See was
her treating physician, the ALJ was obligated to afford controlling weight to his opinions.
The treating physician doctrine recognizes that medical professionals who have a long
history of caring for a claimant and her maladies generally possess significant insight into her
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 “wellsupported by medically acceptable clinical and laboratory diagnostic techniques” and (2) the opinion
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“is not inconsistent with the other substantial evidence in the case record.”

Gayheart v.

Commissioner of Social Security, 710 F.3d 365, 375-76 (6th Cir. 2013) (quoting 20 C.F.R. §
404.1527).
Such deference is appropriate, however, only where the particular opinion “is based
upon sufficient medical data.” Miller v. Sec’y of Health and Human Services, 1991 WL 229979 at
*2 (6th Cir., Nov. 7, 1991) (citing Shavers v. Sec’y of Health and Human Services, 839 F.2d 232,
235 n.1 (6th Cir. 1987)). The ALJ may reject the opinion of a treating physician where such is
unsupported by the medical record, merely states a conclusion, or is contradicted by substantial
medical evidence. See Cohen, 964 F.2d at 528; Miller v. Sec’y of Health and Human Services, 1991
WL 229979 at *2 (6th Cir., Nov. 7, 1991) (citing Shavers v. Sec’y of Health and Human Services,
839 F.2d 232, 235 n.1 (6th Cir. 1987)); Cutlip v. Sec’y of Health and Human Services, 25 F.3d 284,
286-87 (6th Cir. 1994).
If an ALJ accords less than controlling weight to a treating source’s opinion, the ALJ
must “give good reasons” for doing so. Gayheart, 710 F.3d at 376. Such reasons must be
“supported by the evidence in the case record, and must be sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating source’s medical opinion and
the reasons for that weight.” This requirement “ensures that the ALJ applies the treating physician
rule and permits meaningful review of the ALJ’s application of the rule.” Id. (quoting Wilson v.
Commissioner of Social Security, 378 F.3d 541, 544 (6th Cir. 2004)). Simply stating that the
physician’s opinions “are not well-supported by any objective findings and are inconsistent with
other credible evidence” is, without more, too “ambiguous” to permit meaningful review of the
ALJ’s assessment. Gayheart, 710 F.3d at 376-77.
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If the ALJ affords less than controlling weight to a treating physician’s opinion, the
ALJ must still determine the weight to be afforded such. Id. at 376. In doing so, the ALJ must
consider the following factors: (1) length of the treatment relationship and frequency of the
examination, (2) nature and extent of the treatment relationship, (3) supportability of the opinion,
(4) consistency of the opinion with the record as a whole, (5) the specialization of the treating source,
and (6) other relevant factors. Id. (citing 20 C.F.R. § 404.1527). While the ALJ is not required to
explicitly discuss each of these factors, the record must nevertheless reflect that the ALJ considered
those factors relevant to his assessment. See, e.g., Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir.
2007); Undheim v. Barnhart, 214 Fed. Appx. 448, 450 (5th Cir., Jan. 19, 2007).
Dr. See asserts that Plaintiff suffers from extreme physical limitations. Specifically,
on June 15, 2011, Dr. See reported that Plaintiff “can’t stand to cook, can’t lift, twist, [or] bend [and]
needs to lay down during [the] day.” (Tr. 325). On November 20, 2011, Dr. See reported that during
an 8-hour workday, Plaintiff could sit for about 2 hours and can stand/walk for less than two hours.
(Tr. 338). The doctor reported that Plaintiff could “rarely” lift less than 10 pounds and could “never”
lift 10 pounds or more. (Tr. 338). The doctor also reported that Plaintiff would need to take
unscheduled breaks every 15 minutes. (Tr. 338). Finally, on May 5, 2012, Dr. See reported that
Plaintiff was unable to lift more than 5 pounds and “would be limited in the amount of time she
could stand, sit, and ambulate.” (Tr. 368).
The ALJ discounted Dr. See’s opinions on the ground that such were contradicted by
the medical evidence. (Tr. 18-19). As the medical evidence discussed above indicates, the ALJ’s
decision to discount Dr. See’s opinions is supported by substantial evidence. The doctor’s extreme
opinions are contradicted by the medical evidence including the contemporaneous treatment notes
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authored by Plaintiff’s various care providers. Accordingly, this argument is rejected.

III.

Plaintiff’s Credibility
At the administrative hearing, Plaintiff testified that she was unable to work because

she experiences numbness in her lower extremities and is unable to sit or stand for prolonged periods
of time. (Tr. 34-40). Plaintiff also reported that she was unable to lift a gallon of milk. (Tr. 38).
Plaintiff also reported, however, that medication, physical therapy, and use of a heating pad lessens
her pain and makes her feel “more mobile.” (Tr. 34-36). The ALJ discounted Plaintiff’s testimony
that she suffers from extreme and disabling limitations. (Tr. 17-18). Plaintiff asserts that she is
entitled to relief because the ALJ’s rationale for discounting her statements is not supported by
substantial evidence.
As the Sixth Circuit has long recognized, “pain alone, if the result of a medical
impairment, may be severe enough to constitute disability.” King v. Heckler, 742 F.2d 968, 974 (6th
Cir. 1984) (emphasis added); see also, Grecol v. Halter, 46 Fed. Appx. 773, 775 (6th Cir., Aug. 29,
2002) (same). As the relevant Social Security regulations make clear, however, a claimant’s
“statements about [his] pain or other symptoms will not alone establish that [he is] disabled.” 20
C.F.R. § 404.1529(a); see also, Walters v. Commissioner of Social Security, 127 F.3d 525, 531 (6th
Cir. 1997) (quoting 20 C.F.R. § 404.1529(a)) Hash v. Commissioner of Social Security, 309 Fed.
Appx. 981, 989 (6th Cir., Feb. 10, 2009). Instead, as the Sixth Circuit has established, a claimant’s
assertions of disabling pain and limitation are evaluated pursuant to the following standard:
First, we examine whether there is objective medical evidence of an
underlying medical condition. If there is, we then examine: (1)
whether objective medical evidence confirms the severity of the
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alleged pain arising from the condition; or (2) whether the objectively
established medical condition is of such a severity that it can
reasonably be expected to produce the alleged disabling pain.
Walters, 127 F.3d at 531 (citations omitted). This standard is often referred to as the Duncan
standard. See Workman v. Commissioner of Social Security, 105 Fed. Appx. 794, 801 (6th Cir., July
29, 2004).
Accordingly, as the Sixth Circuit has repeatedly held, “subjective complaints may
support a finding of disability only where objective medical evidence confirms the severity of the
alleged symptoms.” Id. (citing Blankenship v. Bowen, 874 F.2d 1116, 1123 (6th Cir. 1989)).
However, where the objective medical evidence fails to confirm the severity of a claimant’s
subjective allegations, the ALJ “has the power and discretion to weigh all of the evidence and to
resolve the significant conflicts in the administrative record.” Workman, 105 Fed. Appx. at 801
(citing Walters, 127 F.3d at 531).
In this respect, it is recognized that the ALJ’s credibility assessment “must be
accorded great weight and deference.” Workman, 105 Fed. Appx. at 801 (citing Walters, 127 F.3d
at 531); see also, Heston v. Commissioner of Social Security, 245 F.3d 528, 536 (6th Cir. 2001) (“[i]t
is for the [Commissioner] and his examiner, as the fact-finders, to pass upon the credibility of the
witnesses and weigh and evaluate their testimony”). It is not for this Court to reevaluate such
evidence anew, and so long as the ALJ’s determination is supported by substantial evidence, it must
stand. The ALJ found Plaintiff’s subjective allegations to not be fully credible, a finding that should
not be lightly disregarded. See Varley v. Sec’y of Health and Human Services, 820 F.2d 777, 780
(6th Cir. 1987). In fact, as the Sixth Circuit recently stated, “[w]e have held that an administrative
law judge’s credibility findings are virtually unchallengeable.” Ritchie v. Commissioner of Social
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Security, 540 Fed. Appx. 508, 511 (6th Cir., Oct. 4, 2013) (citation omitted).
The ALJ examined in detail the evidence and concluded that such undermined
Plaintiff’s credibility. This conclusion is supported by substantial evidence as the discussion of the
medical evidence above reveals. Accordingly, this argument is rejected.

CONCLUSION
For the reasons articulated herein, the Court concludes that the ALJ’s decision is
supported by substantial evidence. Accordingly, the Commissioner’s decision is affirmed. A
judgment consistent with this opinion will enter.

Date: June 18, 2015

/s/ Ellen S. Carmody
ELLEN S. CARMODY
United States Magistrate Judge

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