Bauer v. Commissioner of Social Security
Filing
14
OPINION ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JANELL BAUER,
Plaintiff,
CASE NO. 1:14-CV-392
v.
HON. ROBERT J. JONKER
CAROLYN W. COLVIN,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
__________________________________/
OPINION
This is a social security action brought under 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking
review of an unfavorable decision by the Commissioner of Social Security (Commissioner). Plaintiff
Janell Baur filed her application for disability benefits on October 17, 2011. Plaintiff now seeks
review of the Commissioner’s decision denying her claim for disability benefits (DIB) under Title II
of the Social Security Act.
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 during the time
period within which Plaintiff would be eligible to receive benefits. The Court has thoroughly
reviewed the record and the filings by plaintiff and the Commissioner and, for the reasons stated
below, concludes that the Commissioner’s decision is supported by substantial evidence.
Accordingly, the Commissioner’s decision is affirmed.
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 & Hum. Serv.,
847 F.2d 301, 303 (6th Cir. 1998). 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 & Hum. Serv., 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 & Hum. Serv., 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 & Hum. Serv., 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 to the administrative decision
maker considerable latitude, and indicates that a decision supported by substantial evidence will not
2
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 Bauer was 47 at the time of the Administrative Law Judge’s (ALJ) decision. (See
A.R. 33). She graduated from high school and completed one year of college. (See A.R. 34).
Ms. Bauer previously worked as a telephone solicitor; sales representative for advertising;
department manager in retail; receptionist; retail manager; salesperson in retail; title clerk; customer
order clerk; and credit authorizor. (A.R. 63-64.)
Plaintiff applied for benefits on October 17, 2011, alleging that she had been disabled since
August 25, 2011, due to: drop foot; fibromyalgia; depression; arthritis; and PTSD.1 (A.R. 159.)
Ms. Bauer’s application was denied by the Commissioner during its initial review on December 6,
2011. (A.R. 86-87.) Thereafter plaintiff requested a hearing before an ALJ.
On December 13, 2012, Plaintiff received a hearing before ALJ Henry Kramzyk. Plaintiff;
Plaintiff’s mother, Judith Bauer; and a vocational expert, Thomas Gusloff, testified. After hearing
testimony on the matter and reviewing the record, the ALJ issued an unfavorable decision on
January 16, 2013. The ALJ found that plaintiff was not disabled because she was capable of
performing past relevant work and because there are other jobs that exist in significant numbers in
the national economy that the Plaintiff can also perform. (A.R. 23-24.) On February 11, 2014 the
Appeals Council denied review (A.R. 1-4), and the ALJ’s decision became the Commissioner’s final
decision. In this lawsuit, Plaintiff challenges the Commissioner’s decision.
1
Though not noted on her initial application for benefits, Ms. Bauer at the hearing before the
ALJ also described chronic pain; chronic fatigue; memory problems; and obesity as disabling
conditions she experienced. (A.R. 45-46.)
3
Plaintiff’s insured status expires on December 31, 2016 (A.R. 15). Accordingly, to be
eligible for Disability Insurance Benefits under Title II of the Social Security Act, Plaintiff must
establish that she became disabled prior to the expiration of her insured status. See 42 U.S.C. § 423;
Moon v. Sullivan, 923 F.2d 1175, 1182 (6th Cir. 1990).
ALJ’s DECISION
A claimant must prove that she 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 not less than
twelve months. See 20 C.F.R. §§ 404.1505 and 416.905; Abbott v. Sullivan, 905 F.2d 918, 923 (6th
Cir. 1990). To aid ALJs in applying the above standard, the Commissioner of Social Security 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 [a] plaintiff must demonstrate that
she is not currently engaged in “substantial gainful activity” at the time she seeks
disability benefits. Second, [a] 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 [a] 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, [a] 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, [a] 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 [the] plaintiff can
perform, plaintiff is not disabled.
Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001) (citations omitted); see also 20
C.F.R. §§ 404.1520(a-f).
4
The plaintiff has the burden of proving the existence and severity of limitations caused by
her impairments and that she is precluded from performing past relevant work through step four.
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). At step five, it is the
Commissioner’s burden “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
the Commissioner can make a 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 ALJ determined Plaintiff’s claim failed at the fourth step of the above mentioned
evaluation. Following the five steps, the ALJ initially found that Plaintiff had not engaged in
substantial gainful activity since August 26, 2011 (A.R. 15.) Second, the ALJ determined Plaintiff
had the severe impairments of fibromyalgia; right foot drop; remote history of right acetabular pelvic
fracture; and obesity. (Id.) The ALJ also determined that Plaintiff had a non-severe impairment of
hypertension which she manages with medication. The ALJ determined further that Plaintiff had a
medically determinable mental impairment of depression that was non-severe because it caused no
more than minimal limitation in Plaintiff’s ability to perform basic mental work activities. (A.R.
15.) At the third step, the ALJ found that Plaintiff did not have an impairment or combination of
impairments that met or equaled the requirements of the Listing of Impairments in 20 C.F.R. Pt. 404,
Subpt. P, App. 1. Specifically, the ALJ determined that Plaintiff did not meet the criteria in listing
14.09.
At the fourth step, the ALJ determined Plaintiff’s residual functional capacity (RFC). The
ALJ found that Plaintiff
5
has the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) except that she can lift and/or carry 20 pounds occasionally and 10
pounds frequently. The claimant can stand and/or walk 6 hours in an 8-hour workday
and sit for up to 6 hours in an 8-hour workday. The claimant can only occasionally
use foot controls with the right lower extremity. She can never climb ladders, ropes
or scaffolds, kneel or crawl, or more than occasionally climb ramps or stairs, balance,
stoop, or crouch.
(A.R. 18.) At the fourth step, the ALJ ruled that based on his RFC determination, the Plaintiff was
able to perform her past relevant work as a retail manager; telephone solicitor; receptionist; sales
person; title clerk; customer order clerk; and credit authorizor, as each of those jobs is generally
performed in the national economy. (A.R. 23.) Though not required to proceed to the fifth step, the
ALJ also found alternatively that “considering the claimant’s age, education, work experience, and
residual functional capacity, there are other jobs that exist in significant numbers in the national
economy that the claimant can perform.” (A.R. 24.) Accordingly, the ALJ denied Plaintiff’s
application for disability insurance benefits. After the Appeals Council denied review of the ALJ’s
decision, Plaintiff filed this lawsuit.
ANALYSIS
Plaintiff contends that the ALJ did not follow the treating physician doctrine because,
according to Plaintiff, the ALJ gave less than controlling weight to Dr. Pareigis’s opinion and failed
to provide good reasons for doing so. Plaintiff also claims that the ALJ failed to evaluate Plaintiff’s
credibility properly. The Court considers each of these assertions in turn.
1. Treating Physican Doctrine
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
6
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. Comm’r of Soc.
Sec., 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 & Hum. Serv., 1991 WL 229979 at *2 (6th Cir.,
Nov. 7, 1991) (citing Shavers v. Sec’y of Health & Hum. Serv., 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 & Hum. Serv., 1991 WL 229979 at *2 (6th Cir.,
Nov. 7, 1991) (citing Shavers v. Sec’y of Health & Hum. Serv., 839 F.2d 232, 235 n.1 (6th Cir.
1987)); Cutlip v. Sec’y of Health & Hum. Serv., 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. Comm’r of
Soc. Sec., 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.
7
The ALJ carefully considered Dr. Pareigis’s opinion and gave good reasons for giving it little
weight. The ALJ described at length the records of Dr. Pareigis’s treatment of Plaintiff. (A.R. 20.)
After detailing the records of treatment, the ALJ explained that
[t]he claimant’s treating source, Dr. Pareigis, opined on December 23, 2011 that the
claimant could lift and carry, at most, 10 pounds occasionally due to the
fibromyalgia. She opined the claimant could sit for four hours in an 8-hour workday,
stand for one hour in an 8-hour workday, and walk for one hour in an 8-hour workday
secondary to right leg and hip pain with nerve damage and right foot drop (Exhibit
2F/1). The undersigned has considered this opinion but gives it little weight.
(A.R. 22.) The ALJ discussed explicitly his reasons for giving the opinion little weight:
First, the doctor noted that just a couple of months prior, the claimant had only mild
limitations in the range of motion of the right hip. Additionally, the doctor
recommended the claimant undergo a pool exercise program, which the claimant
failed to do (Exhibit 2F/5). Notably, the doctor rendered the opinion on December
23, 2011 but when the claimant saw her on December 22, 2011, the claimant had
only some mild strength deficits on the right side (Exhibit 2F/4). When the
claimant’s pain medication was adjusted to Methadone the claimant reported the
medication was working well and was able to decrease the Norco. Most notably,
however, when the claimant returned to see the doctor in August 2012, she reported
good pain control, had lost 40 pounds in six months, and had increased activity.
Therefore, the doctor’s opinion appears to be based on the claimant’s subjective
complaints of pain and sympathetic to the claimant. Furthermore, the doctor’s
opinion accounts for 6 hours out of an 8-hour workday and does not indicate what the
claimant would be doing the rest of the time.
(Id.) The ALJ thus provided a series of good reasons including that the opinion was inconsistent
with the medical record. He provided specific examples: Dr. Pareigis found only mild strength
deficits in the December 22, 2011 appointment; Plaintiff’s medication was working well; and in
August 2011 Plaintiff reported good pain control, substantial weight loss, and increased activity.
(Id.)
Plaintiff asserts that the ALJ should have sought further information from Dr. Pareigis
instead of drawing a negative inference from the opinion accounting for only six hours of an eight8
hour workday. This argument fails. The ALJ based his opinion not merely on such an inference,
but more fundamentally on inconsistencies with the medical record, as already discussed. See
Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 272-73 (6th Cir. 2010) (noting that SSR-96-5p did
not require ALJ to re-contact the treating physician where the treating physician’s opinion was found
unpersuasive not because its bases were unclear, but because it was not corroborated by objective
medical evidence.”). Plaintiff also says the ALJ failed to take into account her obesity, but the record
undercuts this claim. In formulating the RFC, the ALJ noted that “considering [the claimant’s] body
habitus, she can never climb ladders, ropes or scaffolds, kneel, crawl, or more than occasionally
climb ramps or stairs, balance, stoop, or crouch.” Plaintiff disagrees with the ALJ’s overall analysis,
but the ALJ gave good reasons for discounting Dr. Pareigis’s opinion. Accordingly, the Court finds
that the ALJ did not commit reversible error with regard to the weight he gave Dr. Pareigis’s
opinion.
2.
Credibility Determination
Plaintiff also challenges the ALJ’s finding that while her medically determinable impairments
could reasonably be expected to cause her alleged symptoms, her “statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely credible.” (A.R. 19-20.)
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 [her] pain or other symptoms will not alone establish that [she is] disabled.” 20 C.F.R.
§ 404.1529(a); see also, Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997) (quoting
9
20 C.F.R. § 404.1529(a)) Hash v. Comm’r of Soc. Sec., 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 under 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 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. Comm’r of Soc. Sec., 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. Comm’r of Soc. Sec., 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
10
disregarded. See Varley v. Sec’y of Health & Hum. Serv., 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. Comm’r of Soc. Sec., 540 Fed. Appx. 508, 511
(6th Cir., Oct. 4, 2013) (citation omitted).
Substantial evidence supports the ALJ’s credibility determination. In making his credibility
determination, the ALJ thoroughly discussed the record evidence, including, but not limited to,
Plaintiff’s medical records; Plaintiff’s own testimony; and Plaintiff’s mother’s testimony. (A.R.
19-23.) The ALJ pointed out that medical records reflect that by March 2012, Plaintiff reported that
her pain medications were working fairly well and that by August 2012, the Plaintiff reported good
pain control, increased activity, and a weight loss of forty pounds. (A.R. 21.) The ALJ noted that
the Plaintiff testified at the hearing that pain medications help with her pain. (Id.) The ALJ
observed that the Plaintiff’s activities of daily living did not support a conclusion that the Plaintiff
is disabled:
The claimant lives by herself and maintains her apartment. She dusts, vacuums,
straightens up the apartment, cooks on a limited basis, loads the dishwasher, does the
laundry, bathes and dresses herself. . . . The claimant cares for her dog and while she
testified that he uses puppy pads so that she does not have to take him out, her friend
reported that she walks the dog daily. . . . The claimant interacts with her mother
frequently and they go out for lunch and dinner. . . . The claimant attends family
functions on holidays and birthdays, goes grocery shopping alone, and testified that
she attends church every Sunday.2
2
Plaintiff objects that the friend who reported that she walks the dog daily was referring to
the period of time before her disability onset date, and that she is no longer able to walk the dog
daily. Accepting this as true, it does not change the analysis, because the other evidence the ALJ
cites in support of his credibility determination is substantial even without reference to walking the
dog.
11
(A.R. 20.) Plaintiff says that the ALJ did not take into consideration the fatigue she experiences as
a side effect of medication. To the contrary, the ALJ stated explicitly that “the claimant testified that
she sleeps a lot and naps during the day . . . [but] claimant did not report excessive fatigue to her
treating doctor.” (A.R. 21.) The ALJ also noted that “[w]hile her mother testified to the claimant’s
decreased stamina, she did not testify that the claimant was sleeping excessively or sleeping while
she was visiting at her apartment.” (Id.) More generally, Plaintiff disagrees with the way the ALJ
weighed the evidence in making his credibility determination, but she offers no persuasive argument
that the evidence supporting the determination is insufficient. The ALJ supported his credibility
determination with substantial evidence.
3.
Plaintiff is Not Entitled to a Sentence Six Remand
As part of her request to obtain review of the ALJ’s decision, Plaintiff submitted to the
Appeals Council additional evidence which was not presented to the ALJ. (A.R. 1-7, 318-321). The
Appeals Council received the evidence into the record and considered it before declining to review
the ALJ’s determination. This Court, however, is precluded from considering such material. In
Cline v. Comm’r of Soc. Sec., 96 F.3d 146 (6th Cir. 1996), the Sixth Circuit indicated that where the
Appeals Council considers new evidence that was not before the ALJ, but nonetheless declines to
review the ALJ’s determination, the district court cannot consider such evidence when adjudicating
the claimant’s appeal of the ALJ’s determination. Id. at 148; see also, Bass v. McMahon, 499 F.3d
506, 512-13 (6th Cir. 2007) (quoting Cline, 96 F.3d at 148).
If Plaintiff can demonstrate, however, that this evidence is new and material, and that good
cause existed for not presenting it in the prior proceeding, the Court can remand the case for further
proceedings during which this new evidence can be considered. Cline, 96 F.3d at 148. To satisfy
12
the materiality requirement, Plaintiff must show that there exists a reasonable probability that the
Commissioner would have reached a different result if presented with the new evidence. Sizemore
v. Sec’y of Health & Hum. Serv’s, 865 F.2d 709, 711 (6th Cir. 1988). Plaintiff bears the burden of
making these showings. See Hollon ex rel. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 483 (6th
Cir. 2006).
Plaintiff has not requested that the Court remand this matter for consideration of this
evidence. Plaintiff has, therefore, waived any such argument. See, e.g., Porzillo v. Dep’t of Health
& Hum. Serv., 369 F. Appx. 123, 132 (Fed. Cir., Mar. 12, 2010) (claimant “waives any arguments
that are not developed”); Shaw v. AAA Engineering & Drafting, Inc., 213 F.3d 519, 537 n.25 (10th
Cir. 2000) (arguments “superficially” developed are waived); Financial Resources Network, Inc. v.
Brown & Brown, Inc., 2010 WL 4806902 at *30 n.29 (D. Mass., Nov. 18, 2010) (same).
CONCLUSION
For these reasons, the Commissioner’s decision is AFFIRMED. A judgment shall issue
separately.
Dated:
September 25, 2015
/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?