Bush 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
RICHARD A. BUSH,
Plaintiff,

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)
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-v)
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COMMISSIONER OF SOCIAL SECURITY,
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Defendant.
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____________________________________)

No. 1:14-cv-595
HONORABLE PAUL L. MALONEY

OPINION
This is a social security action brought under 42 U.S.C. § 405(g) seeking judicial review
of a final decision of the Commissioner of the Social Security Administration (Commissioner). Plaintiff
Richard Bush seeks review of the Commissioner’s decision denying his claim for disability insurance
benefits (DIB) and supplemental security income (SSI) under Titles II and XVI of the Social Security Act.
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. 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 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 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 born on May 3, 1964. He was 46 on the date of his alleged onset date of
disability. (A.R. 345). Plaintiff completed the ninth grade, obtained a GED, and was previously employed
as a laborer and machine operator. (A.R. 68, 377). On November 8, 2011, plaintiff filed for DIB and SSI
(A.R. 345, 349) alleging disability beginning on March 1, 2011 (A.R. 345, 349) due to “heart attack, ocd,
raynards disease, lupus, [and a] torn rotator [cuff.]” (A.R. 263). Plaintiff’s application was denied by the
Commissioner on January 13, 2012 (A.R. 281-88). Plaintiff thereafter requested a hearing before an
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Administrative Law Judge (ALJ) and, on January 15, 2013, plaintiff appeared with counsel for an
administrative hearing before ALJ John Giannikas. At that hearing plaintiff, Edward Pagella (a vocational
expert), Dr. Oscar Farmati and Mr. Richard Gross testified. (A.R. 56) ALJ Giannikas’ decision, dated
February 6, 2013, determined that plaintiff was not entitled to DIB or SSI. (A.R. 35-54). Plaintiff sought
review before the Appeals Council, but the Council declined to review the case on March 28, 2014 making
it the Commissioner’s final decision (A.R. 1-7). Plaintiff thereafter initiated this action.
ALJ’S DECISION
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 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. Commissioner of Social Security, 245 F.3d 528, 534 (6th Cir. 2001) (citations omitted).
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The plaintiff has the burden of proving the existence and severity of limitations caused by
his impairments and that he is precluded from performing past relevant work through step four. Jones v.
Commissioner of Social Security, 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.
The ALJ determined plaintiff’s claim failed at the fifth step of the evaluation. The ALJ
initially found that plaintiff had not engaged in substantial gainful activity since March 1, 2011. (A.R. 40).
Second, the ALJ determined that plaintiff had the severe impairments of (1) cardiovascular disorder, (2)
history of bilateral shoulder surgery, (3) gastrointestinal disorder, (4) history of substance abuse, and (5)
adjustment disorder with depressive and anxious features. (A.R. 40). At the third step, the ALJ considered
whether the plaintiff met a listed impairment and 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 (A.R. 41-43).
With respect to plaintiff’s residual functional capacity, the ALJ determined that plaintiff
has the residual functional capacity to occasionally lift and carry, push, and pull fifteen
pounds, frequently lift and carry, push, and pull, ten pounds or less, and that he is able to
sit for two to three hours straight for a total of six hours out of an eight-hour day, and stand
and walk for a total of two hours out of an eight hour day, but that he must ambulate at a
slower pace on largely level ground. In addition, he is not capable of bilateral overhead
reaching, and is capable of no more than occasional engagement in all postural functions,
but never any crawling or climbing of ladders, ropes, or scaffolds, and no exposure to
unprotected heights or operation of motor vehicles. Furthermore, the claimant must avoid
extremes of temperature. The claimant must have bathroom facilities close at hand and is
likely to be off task approximately 5-10% of the day (due to incontinence issues). The
claimant is limited to no more than occasional interaction with co-workers and supervisors
and no interaction with the public. Finally, the claimant is able to understand, remember,
and carry out simple tasks (one and two step instructions).
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(A.R. 43). Continuing with step four, the ALJ determined that plaintiff was unable to perform any past
relevant work. (A.R. 49).
At the fifth step, the burden of proof shifted to the Commissioner to establish by substantial
evidence that a significant number of jobs exist in the national economy which plaintiff could perform given
his limitations. See Richardson, 735 F.2d at 964. While the ALJ is not required to question a vocational
expert on the issue, “a finding supported by substantial evidence that a claimant has the vocational
qualifications to perform specific jobs” is needed to meet the burden. O’Banner v. Sec’y of Health and
Human Services, 587 F.2d 321, 323 (6th Cir. 1978). This standard requires more than mere intuition or
conjecture by the ALJ that the claimant can perform specific jobs in the national economy. See
Richardson, 735 F.2d at 964. Accordingly, ALJ’s routinely question a vocational expert (VE) in an
attempt to determine whether there exist a significant number of jobs which a particular claimant can
perform, his limitations notwithstanding. Such was the case in the instant matter. The VE testified that there
existed approximately 8,900 jobs in the state of Michigan and 438,000 national jobs which a person with
plaintiff’s residual functional capacity could perform, such limitations notwithstanding. (A.R. 108-12). The
VE testified that this work included jobs in hand sorting operations, as an assembler, and as a bench
packager. (A.R. 110). This represents a significant number of jobs. See Hall v. Bowen, 837 F.2d 272,
274 (6th Cir. 1988); McCormick v. Sec'y of Health & Human Servs., 861 F.2d 998, 1000 (6th Cir.
1988). Thus, following the five steps, the ALJ determined plaintiff was not disabled within the meaning of
the Act.

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ANALYSIS
Plaintiff raises three issues on appeal.
1.

The ALJ erred by failing to consider the objective medical evidence and
plaintiff’s subjective complaints in his RFC finding.

a.

The ALJ Properly Examined the Record

Plaintiff first claims that the ALJ erred in his determination of the record by ignoring facts
that would lead to a determination that plaintiff was disabled. The argument that the ALJ mischaracterized
or “cherry-picked” the record is frequently made and seldom successful, because “the same process can
be described more neutrally as weighing the evidence.” White v. Commissioner, 572 F.3d 272, 284 (6th
Cir.2009). To the extent that plaintiff asks this Court to re-weigh the evidence with respect to portions of
his medical history and then determine whether it agrees (or disagrees) with the ALJ’s determination as to
that particular event, he seeks a de novo review of the record which is beyond the scope of this Court’s.
See Brainard, 889 F.2d at 681. The record reflects that the ALJ considered plaintiff’s extensive medical
history. (A.R. 43-49). The fact that the record also contains evidence which would have supported a
different conclusion does not undermine the Commissioner’s decision. Willbanks, 847 F.2d at 303.
Accordingly, plaintiff’s claim of error is denied.
b.

The ALJ’s RFC Determination Accounted for
Plaintiff’s Medication Side Effects.

Next, plaintiff contends that the ALJ failed to discuss the side effects from his medications.
The record demonstrates that by the plaintiff’s date last insured, his medications included amlodipine,
aspirin, atorvastatin, carvedilol, docusate sodium, eszopiclone, hydrochlorothiazide, lisinopril, naproxen,
omeprazole, polyethylene glycol, promethazine, quetiapine, ranitidine, ropinirole, sertraline, solifenacin,
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tramadol, and nitroglycerin. (A.R. 378). At the administrative hearing, plaintiff stated he experienced side
effects from these medications that included constipation, nausea, vomiting, and dizziness. (A.R. 73).
Plaintiff also stated he took medication to help with the side effects. (A.R. 73).
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. Sec’y 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”). Based on this record, plaintiff’s complaints of side effects are
supported by objective medical evidence. (A.R. 703, 723, 811).
Contrary to plaintiff’s contentions, the ALJ properly evaluated these side effects. The ALJ
expressly noted “the claimant has alleged symptoms consistent with the aforementioned impairments,
including . . . medication side effects (nausea, constipation, vomiting, dizziness). . . .” and a psychiatrist’s
opinion that plaintiff may be over medicated. (A.R. 43, 47). Nevertheless, the ALJ found that “a careful
review of the record reveals that the claimant’s impairments do not prevent him from working at jobs
consistent with the residual functional capacity . . . .” (A.R. 44). For example, the ALJ noted the plaintiff’s
issues of constipation, and concluded that “[c]onsequently, the undersigned has afforded the claimant an
assessed limitation that he must be in close proximity to bathroom facilities and a period of time off task (510%) throughout the workday.” (A.R. 45). The RFC additionally accounted for plaintiff’s fatigue, dizziness
and nausea by stating plaintiff cannot crawl, climb ladders, ropes or scaffolds, and cannot be exposed to
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unprotected heights nor operate motor vehicles (A.R. 43). Accordingly, plaintiff’s claim of error will be
denied.
2.

The ALJ erred by giving an incomplete hypothetical and relying upon
improper VE testimony.

Plaintiff contends that the ALJ erred at step five by giving an inadequate hypothetical
question to the VE which rendered the VE’s testimony useless. First, plaintiff points out that the ALJ’s
RFC hypothetical was based, in part, on the opinion of a state agency psychiatric consultant, Dr. Ruquya
Tareen. Dr. Tareen’s opinion, as stated by the ALJ, was that the plaintiff “has moderate difficulties with
concentration, persistence, and pace . . .” (A.R. 49). The ALJ adopted those limitations in his RFC
determination. (A.R. 49). Plaintiff claims the ALJ erred, however, because the RFC did not address the
speed and pace at which plaintiff is able to work. (A.R. 11). The Court disagrees. The ALJ’s RFC
determination in the instant matter adequately accounted for speed and pace limitations by restricting
plaintiff to jobs which allow him to “ambulate at a slower pace on largely level ground,” restricting plaintiff
“to no more than occasional interaction with co-workers and supervisors and no interaction with the
public,” and restricting plaintiff to work which require the ability “to understand, remember, and carry out
simple tasks (one and two step instructions)” (AR 43). See Smith v. Halter, 307 F.3d 377, 378-79 (6th
Cir. 2001) (determining that a hypothetical question limiting the claimant to jobs that are “routine and low
stress, and do not involve intense interpersonal confrontations, high quotas, unprotected heights, or
operation of dangerous machinery” appropriately addressed the limitations of the claimant who “often”
suffered problems with concentration, persistence or pace resulting in the failure to complete tasks in a
timely manner”). Accordingly the plaintiff’s claim of error will be denied.

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Plaintiff also contends that the VE misunderstood a hypothetical given by the ALJ, i.e., that
the ALJ posed a hypothetical in which a person in plaintiff’s position would need to have restroom facilities
close at hand, but that the VE’s response involved the time plaintiff would be off task rather than the
proximity of bathroom facilities. The relevant portion of the transcript proceeds as follows:
Q.

Okay. Now hypothetical number two. This person would have to have bathroom facilities
close at hand in view of his incontinence issues. How would that affect the numbers that
you gave me?

A.

I would need to know the percentage amount of time that he would be off task.

Q.

Well, he told me he has to void three or four hour –

A.

That would indicate no substantial gainful activity.

Q.

Okay. Well, I don’t think it’s going to be more than – I don’t think he’d be off task more
than 10 percent out of a day, if that.

A.

[inaudible] likely affect the occupations.

Q.

Let’s say 5 to 10 percent.

A.

That would be no change in my response to hypothetical number one. [finding a significant
number of jobs plaintiff could perform].

(A.R. 110).
Although plaintiff is now challenging the VE’s response to a hypothetical question, his
counsel did not object to this testimony during the administrative hearing. “The Sixth Circuit, along with
other courts across the country, have generally recognized that a claimant’s failure to object to testimony
offered by a vocational expert, at the time of the administrative proceeding, waives the claimant’s right to
raise such issues in the district court.” Harris v. Commissioner of Social Security Administration, No.
1:11-cv-1290, 2012 WL 4434078 at 3 (N.D. Ohio Sept. 24, 2012), citing Hammond v. Chater, No.
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96-3755, 1997 WL 338719 at *3 (6th Cir. June 18, 1997) (finding the plaintiff’s failure to raise objections
to the VE’s testimony waived the argument on appeal).
Plaintiff further argues that the hypothetical question was deficient with respect to plaintiff’s
incontinence because it failed to specify that plaintiff would need to take unscheduled breaks and that
plaintiff would need, on occasion, to change clothing and clean himself. Plaintiff did not clarify this issue
during the administrative hearing. (A.R. 111). The Court disagrees. The hypothetical question posed to
the VE adequately addressed plaintiff’s concerns by plainly stating that plaintiff would need restroom
facilities close by, and be off task up to ten percent of the day. (A.R. 110-11). In the context of this
hypothetical question, use of the term “off task” necessarily included the understanding that plaintiff’s breaks
would be unscheduled.
Next, plaintiff contends that the VE provided information which was inconsistent with the
Dictionary of Occupational Titles (“DOT” ) and that the ALJ failed to develop the record to resolve the
inconsistencies. Plaintiff cites SSR 00–4p (“Use of vocational expert and vocational specialist evidence,
and other reliable occupational information in disability decisions”) for the proposition that “the ALJ should
have . . . verified that the VE understood the parameters of the limitation and asked whether there were
any conflicts with the Dictionary of Occupational Titles (DOT).” Plaintiff’s Brief (docket no. 10, PageID
#953).
The Sixth Circuit has rejected the argument that the Commissioner is bound by the DOT’s
characterization of occupations, holding that “the ALJ and consulting vocational experts are not bound by
the Dictionary in making disability determinations because the Social Security regulations do not obligate
them to rely on the Dictionary's definitions.” Wright v. Massanari, 321 F.3d 611, 616 (6th Cir. 2003),
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citing Conn v. Sec’y of Health & Human Services, 51 F.3d 607, 610 (6th Cir. 1995). Under SSR
00–4p, the ALJ has a duty to “[i]dentify and obtain a reasonable explanation for any conflicts between
occupational evidence.” 1 The Sixth Circuit has construed this SSR to mean “that the Social Security
Administration imposes an affirmative duty on ALJs to ask VEs if the evidence that they have provided
‘conflicts with the information provided in the DOT.’” Lindsley v. Commissioner of Social Security, 560
F.3d 601, 606 (6th Cir. 2009). The record reflects that the ALJ did not ask the VE if the evidence
conflicted with the information provided in the DOT. However, in this instance, the Court concludes that
the ALJ was absolved of this affirmative duty because by including a DOT code for each job identified in
her response to the hypothetical questions (A.R. 109–10), the VE demonstrated that her opinions were
consistent with the DOT. While the ALJ has a duty to develop the record, the court does not view SSR
00–4p as requiring the ALJ to affirmatively interrogate the VE in order to establish that no potential conflicts
exist between the VE’s testimony and the DOT when the VE’s own testimony includes citations to the
DOT. Accordingly, plaintiff's claim will be denied.
Finally, plaintiff contends that the VE was incorrect in determining the number of available
jobs, and claims, without pointing to anything in the record, that the number of jobs is actually much less
than the vocational expert claimed. Plaintiff’s Brief at PageID #953. The Court’s review “is limited to an
examination of the record only.” Brainard, 889 F.2d at 681. Plaintiff’s presentation of evidence outside
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SSR’s “are binding on all components of the Social Security Administration” and “represent
precedent final opinions and orders and statements of policy and interpretations” adopted by the
agency. 20 C.F.R. § 402.35(b)(1). While SSR’s do not have the force of law, they are an agency’s
interpretation of its own regulations and “entitled to substantial deference and will be upheld unless
plainly erroneous or inconsistent with the regulation.” Kornecky v. Commissioner of Social Security,
167 F.App’x. 496, 498 (6th Cir. 2006), quoting Wilson v. Commissioner of Social Security, 378
F.3d 541, 549 (6th Cir. 2004) (citations omitted).
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of the record is not a proper subject for review. Accordingly, plaintiff’s claim of error will be denied.
3.

The ALJ erred by making an improper credibility
determination.

Plaintiff contends that the ALJ improperly discounted his credibility. Plaintiff reasons that
the two inconsistencies on which the ALJ relied, use of alcohol and the reason plaintiff stopped working,
were not inconsistencies and did not have any bearing on credibility.
An ALJ may discount a claimant’s credibility where the ALJ “finds contradictions among the
medical records, claimant’s testimony, and other evidence.” Walters v. Commissioner of Social Security,
127 F.3d 525, 531 (6th Cir. 1997). “It [i]s for the [Commissioner] and his examiner, as the fact-finders,
to pass upon the credibility of the witnesses and weigh and evaluate their testimony.” Heston, 245 F.3d
at 536 (quoting Myers v. Richardson, 471 F.2d 1265, 1267 (6th Cir. 1972)). The court “may not disturb”
an ALJ's credibility determination “absent [a] compelling reason.” Smith v. Halter, 307 F.3d 377, 379
(6th Cir. 2001). The threshold for overturning an ALJ’s credibility determination on appeal is so high, that
in recent years, the Sixth Circuit has expressed the opinion that “[t]he ALJ’s credibility findings are
unchallengeable,” Payne v. Commissioner of Social Security, 402 F.App’x. 109, 113 (6th Cir. 2010),
and that “[o]n appeal, we will not disturb a credibility determination made by the ALJ, the finder of fact
. . . [w]e will not try the case anew, resolve conflicts in the evidence, or decide questions of credibility.”
Sullenger v. Commissioner of Social Security, 255 F.App’x. 988, 995 (6th Cir. 2007). In addition, the
Sixth Circuit has applied the harmless error analysis to a ALJ’s credibility determinations in social security
disability hearings. Ulman v. Commissioner of Social Security, 693 F.3d 709, 714 (6th Cir. 2012)
(“Nevertheless, an ALJ’s credibility determinations regarding subjective complaints must be reasonable and

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supported by substantial evidence. Rogers v. Commissioner of Social Security, 486 F.3d 234, 249 (6th
Cir. 2007).
Applying the necessary deferential standard, the Court is persuaded that the ALJ made
impermissible credibility determinations. The substantive portion of the credibility findings focused on
whether the limiting effect of the plaintiff’s impairments, as he testified, were supported by medical
evidence. The ALJ provided the following explanation:
After careful consideration of the evidence, the undersigned finds that the claimant’s
medical determinable impairments could reasonably be expected to cause the alleged
symptoms; however, the claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not fully credible to the extent that they are
inconsistent with the above residual functional capacity assessment. When evaluating
credibility as it relates to the claimant’s assertions, the undersigned has taken into
consideration various factors, including the objective medical evidence, medical treatment,
medications taken, comments regarding the claimant’s activities of daily living, work
history, and opinions.
(AR 44). The ALJ then summarized the medical evidence and medical treatment, concluding that the
record did not support the “intensity, persistence, and limiting effect of the symptomology alleged by the
claimant.” (Id.). Only then did the ALJ discuss other inconsistencies, the use of alcohol and the reason
that the plaintiff stopped working. In other words, the alleged errors were findings made by the ALJ after
finding that the medical evidence did not support the plaintiff’s testimony about the intensity, persistence,
and limiting effects of his disability. At worst, the ALJ’s discussion of alcohol use and work history were
harmless error.

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CONCLUSION
For the reasons provided above, the Court finds no error in the Commissioner’s decision
denying Plaintiff’s claim for disability insurance benefits or supplemental security income. Therefore, the
Commissioner’s decision is AFFIRMED. IT IS SO ORDERED.

Date: November 9, 2015

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

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