Harris v. Commissioner of Social Security

Filing 15

OPINION ; signed by Magistrate Judge Phillip J. Green (Green, Phillip)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THOMAS EARL HARRIS,

)
)
Plaintiff,
)
v.
)
)
COMMISSIONER OF
)
SOCIAL SECURITY,
)
)
Defendant.
)
______________________________________ )

Case No. 1:14-cv-00649-PJG
Honorable Phillip J. Green

OPINION
This is a social security action brought under 42 U.S.C. §§ 405(g), 1383(c)(3)
seeking review of a final decision of the Commissioner of Social Security finding that
plaintiff was not entitled to disability insurance benefits (DIB) and Supplemental
Security Income (SSI) benefits. On July 28, 2010, plaintiff filed his applications for
DIB and SSI benefits. Plaintiff alleged a July 17, 2010, onset of disability.1 (Page ID
162, 169). His claims were denied on initial review. (Page ID 93-112). On May 9,
2012, he received a hearing before an ALJ. (Page ID 60-91). On July 12, 2012, the ALJ
issued her decision finding that plaintiff was not disabled. (Page ID 46-55). The
Appeals Council granted plaintiff’s request for review. (Page ID 36). On May 20, 2014,

SSI benefits are not awarded retroactively for months prior to the
application for benefits. 20 C.F.R. § 416.335; see Kelley v. Commissioner, 566 F.3d 347,
349 n.5 (3d Cir. 2009); see also Newsom v. Social Security Admin., 100 F. App’x 502,
504 (6th Cir. 2004). The earliest month in which SSI benefits are payable is the month
after the application for SSI benefits is filed. Accordingly, August 2010 is plaintiff’s
earliest possible entitlement to SSI benefits.
1

the Appeals Council entered its decision denying plaintiff's claims for DIB and SSI
benefits. (Page ID 31-33).
Plaintiff filed a complaint seeking judicial review of the Commissioner’s decision.
On appeal, plaintiff argues that the Commissioner’s decision should be overturned on
the following grounds:2
1.

THE COMMISSIONER ERRONEOUSLY FAILED TO GIVE
APPROPRIATE WEIGHT TO THE OPINIONS OF THE TREATING
SOURCES, VIOLATED AGENCY RULES, AND MISAPPLIED THE
LAW.

(Plf. Brief at 1, docket # 13, Page ID 514). The Commissioner’s decision will be
affirmed.
Standard of Review
When reviewing the grant or denial of social security benefits, this court is to
determine whether the Commissioner’s findings are supported by substantial evidence
and whether the Commissioner correctly applied the law. See Elam ex rel. Golay v.
Commissioner, 348 F.3d 124, 125 (6th Cir. 2003); Buxton v. Halter, 246 F.3d 762, 772
(6th Cir. 2001). Substantial evidence is defined as “‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’”

Heston v.

Commissioner, 245 F.3d 528, 534 (6th Cir. 2001) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)); see Rogers v. Commissioner, 486 F.3d 234, 241 (6th Cir. 2007).

Issues not included in the plaintiff’s statement of issues are deemed
waived. See Ealy v. Commissioner, 594 F.3d 504, 513 (6th Cir. 2010); see also Jones v.
Commissioner, No. 1:13-cv-340, 2015 WL 1002858, at * 1 n.2 (W.D. Mich. Mar. 5, 2015)
(collecting cases).
2

-2-

The scope of the court’s review is limited. Buxton, 246 F.3d at 772. The court does not
review the evidence de novo, resolve conflicts in evidence, or make credibility
determinations. See Ulman v. Commissioner, 693 F.3d 709, 713 (6th Cir. 2012);
Walters v. Commissioner, 127 F.3d 525, 528 (6th Cir. 1997). “The findings of the
[Commissioner] as to any fact if supported by substantial evidence shall be
conclusive . . . .” 42 U.S.C. § 405(g); see McClanahan v. Commissioner, 474 F.3d 830,
833 (6th Cir. 2006). “The findings of the Commissioner are not subject to reversal
merely because there exists in the record substantial evidence to support a different
conclusion. . . . This is so because there is a ‘zone of choice’ within which the
Commissioner can act without fear of court interference.” Buxton, 246 F.3d at 772-73.
“If supported by substantial evidence, the [Commissioner’s] determination must stand
regardless of whether the reviewing court would resolve the issues of fact in dispute
differently.” Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir. 1993); see Gayheart v.
Commissioner, 710 F.3d 365, 374 (6th Cir. 2013) (“A reviewing court will affirm the
Commissioner’s decision if it is based on substantial evidence, even if substantial
evidence would have supported the opposite conclusion.”). “[T]he Commissioner’s
decision cannot be overturned if substantial evidence, or even a preponderance of the
evidence supports the claimant’s position, so long as substantial evidence also supports
the conclusion reached by the ALJ.” Jones v. Commissioner, 336 F.3d 469, 477 (6th
Cir. 2003); see Kyle v. Commissioner, 609 F.3d 847, 854 (6th Cir. 2010).

-3-

Discussion
The Appeals Council found that plaintiff met the disability insured requirement
of the Social Security Act through March 31, 2012, but not thereafter. (Op. at 2, Page
ID 32). Plaintiff had not engaged in substantial gainful activity on or after July 17,
2010, the alleged onset date. (Id.). Plaintiff had the following severe impairments:
status-post myocardial infarction with stent placement; hypertension; history of left
elbow epicondylitis; history of orthostatic lightheadedness; and depression. (Id.).
Plaintiff did not have an impairment or combination of impairments which met or
equaled the requirements of the listing of impairments. (Id.). The Appeals Council
found that plaintiff retained the residual functional capacity (RFC) for a limited range
of light work:
The claimant’s combination of impairments results in the following
limitations on his ability to perform work-related activities: light work
except no climbing ladders, ropes, or scaffolds; less than frequent
climbing of ramps and stairs; avoid concentrated exposure to heat, cold,
or humidity; avoid concentrated exposure to hazards such as unprotected
heights and dangerous moving machinery; retains the ability to
understand, carry out, remember, and sustain simple instruction and
work independently and make simple work related judgments and
decisions, and respond appropriately to supervisors, coworkers and work
situations; and deal with changes in a routine work setting. In review of
the above limitations, that claimant has the residual functional capacity
to perform a reduced range of [work at] the light exertional level.
(Id. at 2-3, Page ID 32-33). The Appeals Council found that plaintiff could not perform
any past relevant work.3 (Id. at 3, Page ID 33). Plaintiff was classified as an

This is where the Appeals Council’s decision departed from the ALJ’s
decision. The ALJ found that plaintiff was not disabled at step 4 of the sequential
analysis because he was capable of performing past relevant work. (Page ID 54).
3

-4-

individual closely approaching advanced age at all times relevant to his claims. (Id.).
Plaintiff has at least a high school education and is able to communicate in English.
(Id.). The Appeals Council found that the transferability of jobs skills was not material
to a determination of disability. (Id.). The Appeals Council then turned to the
testimony of a vocational expert (VE). In response to a hypothetical question regarding
a person of plaintiff’s age with his RFC, education, and work experience, the VE
testified that there were approximately 25,100 jobs in the regional economy and more
than 440,000 jobs in the national economy that the hypothetical person would be
capable of performing. (Id. at 2, Page ID 32). The Appeals Council found that this
constituted a significant number of jobs. Using Rule 202.13 of the Medical-Vocational
Guidelines as a framework, the Appeals Council found that plaintiff was not disabled.
(Op. at 2-3, Page ID 32-33).
Plaintiff’s statement of error is as follows:

“THE COMMISSIONER

ERRONEOUSLY FAILED TO GIVE APPROPRIATE WEIGHT TO THE OPINIONS
OF THE TREATING SOURCES, VIOLATED AGENCY RULES, AND MISAPPLIED
THE LAW.” (Plf. Brief at 1, Page ID 514). Under this heading, plaintiff argues that
the Commissioner should have given “controlling weight” to opinions expressed in a
Mental Residual Functional Capacity Questionnaire completed by Ms. Josie Canales,
a treating social worker, and a Physical Residual Functional Capacity Questionnaire
completed by Mr. William Ulrich, a treating physician’s assistant. He asserts that the
ALJ should have given less weight to the opinions of two acceptable medical sources,
Psychologist David Cashbaugh and Donald Sheill, M.D., because they conducted
-5-

consultative examinations. Plaintiff argues that the Commissioner violated a duty to
re-contact plaintiff’s social worker and physician’s assistant under SSR 96-5p and
violated SSR 96-7p by “drawing a negative inferences from the medical records without
questioning the Claimant’s reasoning for discontinuing treatment.”

Plaintiff’s

arguments do not provide a basis for disturbing the Commissioner’s decision.
No opinions expressed by Ms. Canales or Mr. Ulrich were entitled to controlling
weight. The treating physician rule does not apply to the opinions of social workers
and physician’s assistants because they are not “acceptable medical sources.” See 20
C.F.R. §§ 404.1513(a), (d)(1), 416.913(a), (d)(1). There is no treating social worker or
treating physician’s assistant rule. The opinions of social workers and physician’s
assistants are not entitled to any particular weight. Only “acceptable medical sources”
can: (1) provide evidence establishing the existence of a medically determinable
impairment; (2) provide a medical opinion; and (3) be considered a treating source
whose medical opinion could be entitled to controlling weight under the treating
physician rule. See Titles II and XVI: Considering Opinions and Other Evidence from
Sources Who are not ‘Acceptable Medical Sources’ in Disability Claims; Considering
Decisions on Disability by Other Governmental and Nongovernmental Agencies, SSR
06-3p (reprinted at 2006 WL 2329939, at * 2 (SSA Aug. 9, 2006)); see also Bliss v.
Commissioner, 406 F. App’x 541, 541 (2d Cir. 2011) (“[T]he assessment by the social
worker is ineligible to receive controlling weight because social workers do not qualify
as ‘acceptable medical sources.’ ”); Turner v. Commissioner, 613 F.3d 1217, 1223-24
(9th Cir. 2010). The opinions of physician’s assistants and social workers fall within
-6-

the category of information provided by “other sources.”4 See 20 C.F.R. §§ 404.1513(d),
416.913(d). The social security regulations require that information from other sources
be “considered.” 2006 WL 2329939, at * 1, 4 (citing 20 C.F.R. §§ 404.1513, 416.913);
Cole v. Astrue, 661 F.3d 931, 939 (6th Cir. 2011); Cruse v. Commissioner, 502 F.3d 532,
541 (6th Cir.2007). This is not a demanding standard. It was easily met here. The
ALJ is responsible for weighing conflicting evidence. See Buxton, 246 F.3d at 775; see
also Reynolds v. Commissioner, 424 F. App’x 411, 414 (6th Cir. 2011) (“This court
reviews the entire administrative record, but does not reconsider facts, re-weigh the
evidence, resolve conflicts in evidence, decide questions of credibility, or substitute its
judgment for that of the ALJ.”). The Commissioner’s decision to give greater weight
to medical professionals with greater expertise was appropriate. See 20 C.F.R. §§
404.1513, .1527(c), 416.913, .927(c); see also Walters v. Commissioner, 127 F.3d 525,
530 (6th Cir. 1987).
Plaintiff argues that, under SSR 96-5p, the Commissioner had a duty to
recontact Ms. Canales or Mr. Ulrich “for clarification of any concerns.” (Plf. Brief at

“The Commissioner ‘may’ use evidence from other sources, but
information from these ‘other sources’ cannot establish the existence of a medically
determinable impairment.” Brown v. Commissioner, 591 F. App’x 449, 451 (6th Cir.
2015) (quoting SSR 06-03p, 2006 WL 2329939, at * 2). The ALJ has “discretion to
determine the proper weight to accord opinions from other sources.” Engebrecht v.
Commissioner, 572 F. App’x 392, 398 (6th Cir. 2014). The opinions of “other sources”
are not entitled to controlling weight and there is no requirement that the ALJ provide
“good reasons” for rejecting such opinions. See Smith v. Commissioner, 482 F.3d 873,
876 (6th Cir. 2007); see also Engebrecht v. Commissioner, 572 F. App’x at 398; Borden
v. Commissioner, No. 1:13 cv 2211, 2014 WL 7335176, at * 9 (N.D. Ohio Dec. 19, 2014);
Hibbard v. Commissioner, 1:12-cv-1216, 2014 WL 1276518, at * 6 (W.D. Mich. Mar. 27,
2014).
4

-7-

5, Page ID 518). This argument fails on numerous levels. SSR 96-5p does not contain
any provision so broad as to require “clarification of any concerns.” Moreover, SSR 965p does not apply to any opinions expressed by Ms. Canales or Mr. Ulrich because the
ruling only applies to “medical opinions” provided by “acceptable medical sources.”
Policy Interpretation Regarding Titles II and XVI: Medical Source Opinions on Issues
Reserved to the Commissioner, SSR 96-5p (SSA July 2, 1996) (reprinted at 1996 WL
374183); see Ferguson v. Commissioner, 628 F.3d 269, 272 (6th Cir. 2010) (“For
purposes of SSR 96-5p, ‘medical opinions’ are defined as ‘statements from physicians
and psychologists or other acceptable medical sources that reflect judgments about the
nature and severity of [the claimant’s] impairment(s).’” (quoting SSR 96-5p, 1996 WL
374183 at * 2); see also Kostyo v. Colvin, No. 3:14-cv-1238, 2015 WL 4067260, at * 7
(N.D. Ohio July 2, 2015) (“SSR 96-5p is inapplicable to opinions from ‘other sources.’”).
Assuming arguendo that SSR 96-5p applied, it would support rather than
undermine the Commissioner’s decision. The regulation makes pellucid that the issue
of RFC is an issue “reserved to the Commissioner,” and even a treating physician’s
opinion on an issue reserved to the Commissioner is “never entitled to controlling
weight.” 1996 WL 374183 at * 2. Further, in Ferguson v. Commissioner, the Sixth
Circuit held that there were “two conditions that must both be met to trigger SSR 965p’s duty to recontact:5 the evidence does not support a treating source’s opinion ... and

5

Plaintiff fails to note that the former regulations which had “recogniz[ed] a duty to
recontact in cases where the evidence from the treating physician [was] inadequate to determine
disability and contain[ed] a conflict or ambiguity requiring clarification,” Ferguson, 628 F.3d at 273
n. 2 (citing 20 C.F.R. §§ 404.1512(e), 416.912(e), were revised effective March 26, 2012, more than
-8-

the adjudicator cannot ascertain the basis of the opinion from the record.” Id. at 273.
An unsupported opinion alone does not trigger the duty to recontact. Ferguson, 628
F.3d at 273. SSR 96-5p’s duty is not triggered where, as here, the Commissioner did
not reject the opinions because they were unclear, but instead rejected the opinions
because they were based on plaintiff’s subjective complaints and were not supported
by the other evidence of record. Ferguson, 628 F.3d at 273. “ ‘[A]n ALJ is required to
re-contact a treating physician only when the information received is inadequate to
reach a determination on claimant’s disability status, not where, as here, the ALJ
rejects the limitations recommended by that physician.’” Ferguson, 628 F.3d at 274
(quoting Poe v. Commissioner, 342 F. App’x 149, 156 n. 3 (6th Cir. 2009)). Where the
duty is not triggered, it is not violated. Ferguson, 628 F.3d at 274.
Plaintiff argues that the Commissioner violated SSR 96-7p by drawing a
“negative inference” from plaintiff’s failure to continue treating with Ms. Canales. He
asserts that the “Commissioner did not have the authority to draw any negative
inferences from the medical records without questioning the Claimant’s reasoning for
discontinuing treatment.” (Plf. Brief at 5, Page ID 518). This argument suffers from
numerous fatal flaws. Discussion of four will suffice for present purposes. First,
plaintiff fails to identify where the purportedly improper “apparent negative inference”
(Id.) is found in the Appeals Council’s decision or the portions of the ALJ’s decision

two years before the Appeals Council’s decision. The revised regulations are found at 20 C.F.R. §§
404.1520b(c)(1), 416.920b(c)(1) and clarify that the Commissioner has “discretion, not a duty, to
re-contact a medical source.” Jones v. Colvin, No. 2:12-cv-3605, 2014 WL 1046003, at * 11 (N.D.
Ala. March 14, 2014).
-9-

adopted by the Appeals Council. Second, plaintiff’s reliance on SSR 96-7p is misplaced.
The citation appears in plaintiff’s argument regarding the weight given to the opinions
of his treating social worker and physician’s assistant. (Plf. Brief at 5, Page ID 518).
SSR 96-7p addresses evaluation of the claimant’s credibility,6 not the credibility of
medical care providers. See Policy Interpretation Ruling Titles II and XVI: Evaluation
of Symptoms in Disability Claims:

Assessing the Credibility of an Individual’s

Statements, SSR 97-7p (SSA July 2, 1996) (reprinted at 1996 WL 374186); see also
White v. Commissioner, 572 F.3d 272, 287 (6th Cir. 2009); accord Seeley v.
Commissioner, 600 F. App’x 387, 392-93 (6th Cir. 2015) Brown v. Commissioner, No.
1:10-cv-705, 2012 WL 951556, at * 5 (W.D. Mich. Feb. 27, 2012). Third, it was entirely
appropriate for the Commissioner to consider the lack of evidence supporting the
extreme restrictions suggested by Ms. Canales and Mr. Ulrich, including the facts that
on July 19, 2011, plaintiff advised Canales that he did not feel that he needed any
further mental health treatment and he did not receive any mental health treatment
after that date. (Page ID 31, 52-53, 428). See 20 C.F.R. §§ 404.1527(c), 416.927(c).
Fourth, assuming that plaintiff’s statement of issues on appeal had included a
challenge to the Commissioner’s factual finding regarding plaintiff’s credibility, he
could not establish a violation of SSR 97-7p on this record. SSR 96-7p states that an

Plaintiff has not challenged the Commissioner’s factual finding regarding
credibility. Any such challenge on appeal would have been unsuccessful because the
Commissioner’s factual finding is supported by more than substantial evidence. See
Ulman v. Commissioner, 693 F.3d 709, 714 (6th Cir. 2012); Gooch v. Secretary of
Health & Human Servs., 833 F.2d 589, 592 (6th Cir. 1987); Ritchie v. Commissioner,
540 F. App’x 508, 511 (6th Cir. 2013).
6

-10-

“individual’s statements may be less credible if the level or frequency of treatment is
inconsistent with the level of complaints[.]” 1996 WL 374186, at * 7. The ruling goes
on to state that the adjudicator should not draw an adverse inference regarding the
claimant’s credibility “without first considering any explanations that the individual
may provide . . . that may explain infrequent or irregular medical visits or failure to
seek treatment.” Id. Plaintiff’s attorney did not elicit any testimony from plaintiff and
supplied no argument offering an explanation why plaintiff stopped seeking mental
health care. (Page ID 72-83, 88-91). The Commissioner cannot be faulted for failure
to consider an explanation that plaintiff

never provided.

See Johnson v.

Commissioner, No. 13-cv-14443, 2015 WL 1510462, at * 2 (E.D. Mich. Mar. 25, 2015).
Plaintiff makes a passing argument that the Commissioner failed to develop the
record, citing Lashley v. Secretary of Health & Human Servs., 708 F.2d 1048 (6th Cir.
1983). (Plf. Brief at 6, Page ID 519). This argument lacks merit. In Lashley, the
claimant, Jack Lashley, appeared for his hearing “without the assistance of an
attorney.” 708 F.2d at 1050. He had a fifth-grade education and was suffering from the
residuals of several strokes.

Id.

“Lashley possessed limited intelligence, was

inarticulate, and appeared to be easily confused.” Id. at 1052. The ALJ’s questions
were “superficial” and entire hearing transcript was only 11 pages long. Id. Under
those circumstances, the Sixth Circuit held that the ALJ fell short of satisfying his
“special duty” to the pro se litigant to develop the record. Id. at 1052-53. The ALJ’s
special duty to pro se parties to develop the record does not extend to plaintiff, because
he was represented by an attorney at the hearing. See Smith v. Commissioner, 473 F.
-11-

App’x 443, 445 (6th Cir. 2012); Kelly v. Commissioner, 314 F. App’x 827, 831 n. 1 (6th
Cir. 2009); see also Lang v. Commissioner, No. 1:14-cv-651, 2015 WL 3767785, at * 3
(W.D. Mich. June 17, 2015). Further, the ALJ is responsible for weighing conflicting
evidence, not the Court. See DeLong v. Commissioner, 748 F.3d 723, 726 (6th Cir.
2014); Buxton, 246 F.3d at 775; see also White v. Commissioner, 572 F.3d 272, 284 (6th
Cir. 2009).
Plaintiff arguments that the Commissioner “appear[ed] to misinterpret the
medical records” and “appear[ed to be] ‘credential biased’ against the opinions of Ms.
Canales and Mr. Ulrich” (see Plf. Brief at 6-8, Page ID 519-21) are perfunctory and
supported by no legal authority. They are deemed waived. “ ‘Issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation, are
deemed waived. It is not sufficient for a party to mention a possible argument in the
most skeletal way, leaving the court to ... put flesh on its bones.’ ” United States v.
Stewart, 628 F.3d 246, 256 (6th Cir. 2010) (quoting McPherson v. Kelsey, 125 F.3d 989,
995-96 (6th Cir. 1997)); see United States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996);
accord Curler v. Commissioner, 561 F. App’x 464, 475 (6th Cir. 2014) (“[Plaintiff
develops no argument to support a remand, and thus the request is waived.”).
For the reasons set forth herein, the Commissioner’s decision will be affirmed.

Date: August 10, 2015

/s/ Phillip J. Green
PHILLIP J. GREEN
United States Magistrate Judge

-12-