McAfee v. Commissioner of Social Security

Filing 16

OPINION; signed by Magistrate Judge Ray Kent (Magistrate Judge Ray Kent, jem)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GERALD McAFEE,
Plaintiff,
v.

Case No. 1:14-cv-771
Hon. Ray Kent

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of
a final decision of the Commissioner of the Social Security Administration (Commissioner) denying
his claim for disability insurance benefits (DIB).
Plaintiff was born in 1964. PageID.225. He completed high school and had past
employment as a core maker in a factory. PageID.260. Plaintiff alleged a disability onset date of
January 1, 2007. PageID.247. He identified his disabling conditions as: carpal tunnel; pain in back,
knees, shoulders and arms; hearing aids in both ears; and sleep apnea. PageID.259. The
administrative law judge (ALJ) reviewed plaintiff’s claim de novo and entered a written decision
denying benefits on February 21, 2013. PageID.35-47. As part of his decision, the ALJ gave res
judicata effect to a previous ALJ’s decision denying benefits on June 17, 2010, which found that
plaintiff was not disabled from the alleged onset date of January 1, 2007 through June 17, 2010.
PageID.35, 45. This decision, which was later approved by the Appeals Council, has become the
final decision of the Commissioner and is now before the Court for review.

I. LEGAL STANDARD
This court’s review of the Commissioner’s decision is typically focused on
determining whether the Commissioner's findings are supported by substantial evidence. 42 U.S.C.
§405(g); McKnight v. Sullivan, 927 F.2d 241 (6th Cir. 1990). “Substantial evidence is more than
a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Cutlip v. Secretary of Health & Human
Services, 25 F.3d 284, 286 (6th Cir. 1994). A determination of substantiality of the evidence must
be based upon the record taken as a whole. Young v. Secretary of Health & Human Services, 925
F.2d 146 (6th Cir. 1990).
The scope of this review is limited to an examination of the record only. This Court
does not review the evidence de novo, make credibility determinations or weigh the evidence.
Brainard v. Secretary of Health & Human Services, 889 F.2d 679, 681 (6th Cir. 1989). The fact that
the record also contains evidence which would have supported a different conclusion does not
undermine the Commissioner’s decision so long as there is substantial support for that decision in
the record. Willbanks v. Secretary of Health & Human Services, 847 F.2d 301, 303 (6th Cir. 1988).
Even if the reviewing court would resolve the dispute differently, the Commissioner’s decision must
stand if it is supported by substantial evidence. Young, 925 F.2d at 147.
A claimant must prove that he suffers from a disability in order to be entitled to
benefits. A disability is established by showing that the claimant cannot engage in substantial
gainful activity by reason of any medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than twelve months. See 20 C.F.R. § 404.1505; Abbott v. Sullivan, 905 F.2d 918, 923
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(6th Cir. 1990). In applying the above standard, the Commissioner has developed a five-step
analysis:
The Social Security Act requires the Secretary to follow a “five-step
sequential process” for claims of disability. First, plaintiff must demonstrate that she
is not currently engaged in “substantial gainful activity” at the time she seeks
disability benefits. Second, plaintiff must show that she suffers from a “severe
impairment” in order to warrant a finding of disability. A “severe impairment” is one
which “significantly limits . . . physical or mental ability to do basic work activities.”
Third, if plaintiff is not performing substantial gainful activity, has a severe
impairment that is expected to last for at least twelve months, and the impairment
meets a listed impairment, plaintiff is presumed to be disabled regardless of age,
education or work experience. Fourth, if the plaintiff's impairment does not prevent
her from doing her past relevant work, plaintiff is not disabled. For the fifth and final
step, even if the plaintiff’s impairment does prevent her from doing her past relevant
work, if other work exists in the national economy that plaintiff can perform, plaintiff
is not disabled.
Heston v. Commissioner of Social Security, 245 F.3d 528, 534 (6th Cir. 2001) (citations omitted).
The claimant bears the burden of proving the existence and severity of limitations
caused by her impairments and the fact that she is precluded from performing her past relevant work
through step four. Jones v. Commissioner of Social Security, 336 F.3d 469, 474 (6th Cir. 2003).
However, at step five of the inquiry, “the burden shifts to the Commissioner to identify a significant
number of jobs in the economy that accommodate the claimant’s residual functional capacity
(determined at step four) and vocational profile.” Id. If it is determined that a claimant is or is not
disabled at any point in the evaluation process, further review is not necessary. Mullis v. Bowen, 861
F.2d 991, 993 (6th Cir. 1988).
II. ALJ’S DECISION
Plaintiff’s claim failed at the fifth step of the evaluation. At the first step, the ALJ
found that plaintiff last met the insured status requirements of the Act on March 31, 2012, and that

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he had not engaged in substantial gainful activity from the relevant time period of June 18, 2010
through his date last insured. PageID.37. At the second step, the ALJ found that through the date
last insured plaintiff had severe impairments of multi-joint peripheral symmetric polyarthritis,
exercise induced hypertension, degenerative disc disease, obesity, and bilateral carpal tunnel
syndrome. Id. 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. PageID.39-40.
The ALJ decided at the fourth step that through the date last insured:
[T]he claimant had the residual functional capacity to perform light work as defined
in 20 C.F.R. § 404.1567(b) except that he is limited to work requiring no overhead
reaching bilaterally, no more than frequent reaching in all other directions bilaterally,
no need to hold the bilateral upper extremities in a set position for more than a few
minutes, no more than occasional handling and fingering with the left upper
extremity and no more than frequent handling and fingering with the right upper
extremity, no more than occasional climbing of ramps and stairs, balancing, stooping,
kneeling, and crouching, no crawling and climbing of ladders, ropes, and scaffolds,
and which avoids exposure to unprotected heights, moving mechanical parts,
weather, vibration, and temperature extremes.
PageID.40. The ALJ also found that plaintiff was unable to perform any past relevant work.
PageID.45.
At the fifth step, the ALJ determined that plaintiff could perform a significant number
of unskilled, light jobs in the national economy. PageID.45-46. Specifically, plaintiff could perform
the following work: school bus monitor (1,500 jobs in Michigan and 74,470 in the nation); and,
parking lot attendant (2,290 jobs in Michigan and 126,160 in the nation). Id. Accordingly, the ALJ
found that plaintiff has not been under a disability, as defined in the Social Security Act, at any time

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from January 1, 2007 (the alleged onset date) through March 31, 2012 (the date last insured).
PageID.46.
III. ANALYSIS
Plaintiff did not set forth a statement of errors as required by the Court. See Notice
(docket no. 8).1 Based on the arguments set forth in the brief, the Court gleans two issues.2
A.

The ALJ improperly evaluated the opinions of
three treating physicians.3

A treating physician’s medical opinions and diagnoses are entitled to great weight in
evaluating plaintiff's alleged disability. Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001). “In
general, the opinions of treating physicians are accorded greater weight than those of physicians who
examine claimants only once.” Walters v. Commissioner of Social Security, 127 F.3d 525, 529-30
(6th Cir. 1997). “The treating physician doctrine is based on the assumption that a medical
professional who has dealt with a claimant and his maladies over a long period of time will have a
deeper insight into the medical condition of the claimant than will a person who has examined a
claimant but once, or who has only seen the claimant’s medical records.” Barker v. Shalala, 40 F.3d
789, 794 (6th Cir. 1994). See 20 C.F.R. § 404.1527(c)(2) (“Generally, we give more weight to
opinions from your treating sources, since these sources are likely to be the medical professionals
most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring
1

The narrative statement of errors provided by plaintiff does not set forth “the specific errors of fact
or law upon which Plaintiff seeks reversal or remand” as directed by the Court. Plaintiff’s counsel is advised
that future briefs which fail to do so may be stricken.
2

Plaintiff’s initial brief consists of 27 pages. Plaintiff’s counsel is advised that future briefs which
exceed the 20 page limit may be stricken.
3

In this regard, the Court notes that while plaintiff sometimes referred to the opinions of four treating
physicians, his brief only addressed the opinions of three physicians. See PageID.766-770.

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a unique perspective to the medical evidence that cannot be obtained from the objective medical
findings alone or from reports of individual examinations, such as consultative examinations or brief
hospitalizations”).
Under the regulations, a treating source’s opinion on the nature and severity of a
claimant’s impairment must be given controlling weight if the Commissioner finds that: (1) the
opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques; and
(2) the opinion is not inconsistent with the other substantial evidence in the case record. See
Gayheart v. Commissioner of Social Security, 710 F.3d 365, 375 (6th Cir. 2013). Finally, the ALJ
must articulate good reasons for not crediting the opinion of a treating source. See Wilson v.
Commissioner of Social Security, 378 F.3d 541, 545 (6th Cir. 2004); 20 C.F.R. §§ 404.1527(c)(2)
and 416.927(c)(2) (“[w]e will always give good reasons in our notice of determination or decision
for the weight we give your treating source’s opinion”).
1.

J. Michael Wiater, M.D.

Plaintiff contends that the ALJ improperly evaluated an opinion expressed by Dr.
Wiater which appears in a treatment note from January 10, 2012:
Gerald McAfee returns status post left TSA 091301201 I. There is pain in the
shoulder, mostly in the front. Not able to go to work. Trying to get disability
coverage.
PageID.509. The ALJ gave little weight to the doctor’s statement that plaintiff was “[n]ot able to
go to work.” PageID.44. In assigning this weight the ALJ explained that “in the literal interpretation
it is overly broad and concerns an issue reserved to the Commissioner, and in the contextual
interpretation concerning the claimant’s left shoulder functioning, it is inconsistent with evidence
of successful surgical intervention and his own assessments of ‘good’ motor function (Exhibit
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B9F).” PageID.44-45, citing PageID.509-513. The determination of disability is the prerogative of
the Commissioner, not the treating physician. See Houston v. Secretary of Health and Human
Services, 736 F.2d 365, 367 (6th Cir. 1984). See 20 C.F.R. § 404.1527(d)(1) ( “[a] statement by a
medical source that you are ‘disabled’ or ‘unable to work’ does not mean that we will determine that
you are disabled”). Such statements, by even a treating physician, constitute a legal conclusion that
is not binding on the Commissioner. Crisp v. Secretary of Health and Human Services, 790 F.2d.
450, 452 (6th Cir. 1986). Based on this record, the ALJ gave good reasons for the weight assigned
to Dr. Wiater’s statement. Accordingly, plaintiff’s claim of error is denied.
2.

James Burczak, M.D.

Another treating physician, Dr. Burczak opined that “the claimant’s ‘upper extremity
usage is quite limited in the way of any heavy manual activities due to his shoulder replacement,’
and his ‘options for work activity are quite limited’ due to his wrist, hand and shoulder.” PageID.45.
The ALJ gave partial weight to the doctor’s opinion, stating “that while significant limitation is
supported as indicated in the discussion of the objective medical evidence above, nevertheless, the
opinion concerns issues regarding the available occupational base of jobs, for which Dr. Burczak is
not qualified to opine upon (Exhibit B11F).” Id. Under the regulations, “medical opinions” are
defined as “statements from physicians and psychologists or other acceptable medical sources that
reflect judgments about the nature and severity of your impairment(s), including your symptoms,
diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental
restrictions.” See 20 C.F.R. § 404.1527(a)(2). Here, Dr. Burczak’s statement that plaintiff’s
“options for work activity are quite limited” does not constitute a medical opinion under the
regulations. Rather, as the ALJ pointed out, it is an opinion regarding the available occupational
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base of jobs. Based on this record, ALJ gave good reasons for the limited weight assigned to this
opinion. Accordingly, plaintiff’s claim of error is denied.
3.

Richard Swanson, M.D.

Plaintiff contends that the ALJ improperly evaluated an opinion expressed by Dr.
Swanson which appears in a treatment note dated December 18, 2012:
I discussed disability with the patient and with his elbow and shoulder surgeries and
the resultant deformities I believe he should file for permanent disability.
PageID.731. The Court does not consider these notes to express a medical opinion under 20 C.F.R.
§ 404.1527(a)(2). Rather, these notes express Dr. Swanson’s belief that plaintiff should file a
disability claim because he has a permanent disability. To the extent that Dr. Swanson opined that
plaintiff suffered from a permanent disability, this is a determination reserved to the Commissioner.
See Crisp, 790 F.2d. at 452; Houston, 736 F.2d at 367; 20 C.F.R. § 404.1527(d)(1). Accordingly,
plaintiff’s claim of error is denied.
B.

The Commissioner’s finding that plaintiff’s
allegations of disabling pain in his shoulder, knees
and hands is not entirely credible is not supported
by substantial evidence.

Plaintiff contends that the ALJ erred by improperly discounting his credibility with
respect to the allegations of pain in his shoulders, knees and hands. “[C]redibility determinations
with respect to subjective complaints of pain rest with the ALJ.” Siterlet v. Secretary of Health and
Human Services, 823 F. 2d 918, 920 (6th Cir. 1987). “An individual’s statement as to pain or other
symptoms shall not alone be conclusive evidence of disability.” 42 U.S.C. § 423(d)(5)(A).
Objective medical evidence that confirms the existence of pain is required. Shavers v. Secretary of
Health and Human Services, 839 F.2d 232, 234-235 (6th Cir.1987). “A claimant, however, may rely
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in part on her own testimony in combination with objective medical evidence in order to establish
that she is disabled.” Cohen v. Secretary of Department of Health and Human Services, 964 F.2d
524, 529 (6th Cir. 1992) (emphasis in original). When evaluating a claimant’s statements of
subjective pain, the ALJ is required to determine the actual intensity and persistence of the
claimant’s symptoms and how these symptoms limit the claimant’s ability to work. Allen v.
Commissioner of Social Security, 561 F.3d 646, 652 (6th Cir. 2009). 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). Nevertheless, an ALJ’s credibility determinations regarding subjective
complaints must be reasonable and supported by substantial evidence. Rogers v. Commissioner of
Social Security, 486 F.3d 234, 249 (6th Cir. 2007).
In Duncan v. Secretary of Health and Human Services, 801 F.2d 847 (6th Cir. 1986),
the Sixth Circuit fashioned a two-prong test for evaluating an alleged disability based upon pain.
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.
Duncan, 801 F.2d at 853. See Felisky v. Bowen, 35 F.3d 1027, 1037-1039 (6th Cir. 1994) (the
Duncan analysis is a “succinct form” of the Social Security Administration’s guidelines for use in
analyzing a claimant's subjective complaints of pain as set forth in 20 C.F.R. § 404.1529).
Here, the ALJ found that plaintiff met the first prong of the Duncan test, when
he found that plaintiff had severe impairments of multi-joint peripheral symmetric polyarthritis,
exercise induced hypertension, degenerative disc disease, and bilateral carpal tunnel syndrome.
PageID.37, 41. The next question is whether plaintiff met the second prong of the Duncan test.
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However, the record is insufficient to enable the court to answer this question, because the ALJ’s
decision does not address plaintiff’s subjective complaints in a meaningful manner. After reviewing
the evidence, the ALJ makes a conclusory credibility determination:
I have considered the opinions of the claimant expressed in his Adult
Functional Report, however it is afforded little weight because, as indicated in the
discussion above, the allegations concerning the constant and unrelenting nature of
his symptoms is disproportionate to the objective medical evidence, and further, the
allegations are inconsistent with his level of actual functioning reported in activities
of daily living questions (Exhibit B4E).
PageID.45. The ALJ does not identify the symptoms mentioned in the Adult Functional Report,
address how those symptoms are disproportionate to the objective medical evidence, or how the
symptoms are inconsistent with his activities of daily living.
The Commissioner must provide a statement of evidence and reasons on which the
decision is based. See 42 U.S.C. § 405(b)(1). An ALJ “must articulate, at some minimum level, his
analysis of the evidence to allow the appellate court to trace the path of his reasoning.” Diaz v.
Chater, 55 F.3d 300, 307 (7th Cir. 1995). In this case, the Court cannot trace the path of the ALJ’s
reasoning with respect to plaintiff’s credibility. Accordingly, the ALJ’s decision will be reversed
and remanded pursuant to sentence four of 42 U.S.C. § 405(g). On remand the ALJ should reevaluate plaintiff’s credibility with respect to the pain in his shoulders, knees and hands.

IV. CONCLUSION
For the reasons discussed, the Commissioner’s decision will be REVERSED and
REMANDED pursuant to sentence four of 42 U.S.C. § 405(g). On remand, the Commissioner is

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directed to re-evaluate plaintiff’s credibility with respect to the pain in his shoulders, knees and
hands. A judgment consistent with this opinion will be issued forthwith.

Date: March 17, 2016

/s/ Ray Kent
Ray Kent
United States Magistrate Judge

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