Whitaker v. Commissioner of Social Security
OPINION; signed by Magistrate Judge Ray Kent (Magistrate Judge Ray Kent, jem)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
KAREN L. WHITAKER,
Case No. 1:14-cv-1090
Hon. Ray Kent
COMMISSIONER OF SOCIAL
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 her
claim for disability insurance benefits (DIB).
Plaintiff was born in 1960. PageID.250. She completed the 11th grade and had past
employment as a laborer with a temporary service, a laborer in a nursing home, a fast food restaurant
crew member, a cashier, and a motel business manager. PageID.255. She alleged a disability onset date
of January 1, 2010. PageID.250. Plaintiff identified her disabling condition as depression. PageID.254.
The administrative law judge (ALJ) reviewed plaintiff’s claim de novo and entered a written decision
denying benefits on March 22, 2013. PageID.49-59. 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
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 (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 she had not engaged in substantial gainful activity since the alleged onset date of January 1, 2010,
and that she met the insured status requirements of the Act through December 31, 2014. PageID.51.
At the second step, the ALJ found that plaintiff had the severe impairments of affective disorder and
drug/alcohol abuse (DAA) in sustained remission. 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.52.
The ALJ decided at the fourth step that:
[T]he claimant has the residual functional capacity to perform a full range of work at all
exertional levels but with the following nonexertional limitations: no physical
limitations; can understand, remember and carry out simple instructions; can have
occasional general public, coworker and supervisory contact/interaction; would work
better in small group environment and/or low stress setting.
PageID.54. The ALJ also found that plaintiff was unable to perform any of her past relevant work.
At the fifth step, the ALJ determined that plaintiff could perform a significant number
of unskilled jobs at all exertional levels in the national economy. PageID.58-59. Specifically, plaintiff
could perform the following unskilled jobs in Michigan: machine feeder (15,000 jobs); packager (7,200
jobs); and production helper (14,000 jobs). PageID.59.1 Accordingly, the ALJ found that plaintiff has
not been under a disability, as defined in the Social Security Act, from January 1, 2010 (the alleged
onset date) through March 22, 2013 (the date of the decision). PageID.59.
Plaintiff raised one issue on appeal.
The Commissioner erroneously failed to give
appropriate weight to the opinions of treating
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
The ALJ’s decision did not state whether these jobs were located in the region or throughout the
nation. However, the vocational expert testified that these jobs were located in the State of Michigan.
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 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) (“[w]e will always give good
reasons in our notice of determination or decision for the weight we give your treating source’s
Amy Hogue, M.D.
Dr. Hogue is plaintiff’s primary care physician. The doctor completed a diabetes residual
functional capacity (RFC) form on November 13, 2012. PageID.695-698. Plaintiff points out that in
the form, Dr. Hogue stated that plaintiff suffered from symptoms including fatigue, difficulty walking,
episodic vison blurriness, general malaise, psychological problems, extreme pain or numbness,
difficulty thinking/concentrating, and headaches. PageID.708. In her brief, plaintiff relies on Dr.
Hogue’s opinions regarding her mental impairments, i.e., that her pain and other symptoms were severe
enough to frequently (34% to 66% of an 8-hour work day) interfere with attention and concentration
to perform even simple work tasks, that she was incapable of even low stress jobs, that she would be
absent more than four days per month due to the severity of her impairments, and that the “extent of the
patient’s psychiatric illness would be a significant barrier to her ability to work in full time
employment.” PageID.695-698, 708-709.
The ALJ performed an extensive review of Dr. Hogue’s assessment, which appears in
its entirety below:
The claimant submitted another medical opinion statement from Dr. Hogue at
exhibit l8F. Dr. Hogue addresses both the diabetes and the mental health aspect of this
case. Dr. Hogue listed clinical findings of diabetic neuropathy, anxiety and depression
and these are actually diagnoses that Dr. Hogue may have meant to list elsewhere. The
claimant is listed as apparently suffering from diabetic neuropathy as the basis for her
physical limitations per Dr. Hogue. However, all of the clinical findings from Dr.
Hogue and the facility Dr. Hogue is affiliated with refer to the diabetes neuropathy as
negative, or not present. The clinical findings do not support the presence of diabetic
neuropathy, and the most frequent indication of diabetic neuropathy is how the claimant
presented this issue as a subjective symptom. For example, the clinical findings for
diabetes were negative or within normal limits at exhibits 12F, pp. 4, 15, 22, 25, and 50.
Exhibit 18F also cites the psychiatric problems as a basis for finding that the
claimant is incapable of working. Dr. Hogue refers to having met the claimant first
during the end of 2011, and signed the medical statement 11/13/2012. During that time
the claimant was meeting with Ms. Bouwma [a licensed master’s social worker
(LMSW)] at Muskegon Family Care, as Dr. Hogue and Ms. Bouwma worked at that
facility simultaneously. Dr. Hogue’s actual clinical notes show that she was deferring
to Ms. Bouwma for the mental health issues and course of treatment.
Dr. Hogue is a primary care source and hence was not overly involved in the
treatment of the claimant’s depression and anxiety. This summary from Dr. Hogue is
not entitled to any particular weight. As Dr. Hogue relies upon Ms. Bouwma at this
practice, it is also relevant that the clinician refers to the claimant as having some
improvement in her functional status. At exhibit 12F, p. 18 her GAF had improved to
60 per Ms. Bouwma. This is inconsistent with exhibits 18F and 16F, wherein the
claimant supposedly has serious limitations that would meet or equal listing 12.04 if
adopted. The psychiatric treatment notes also states that the claimant improved with the
use of Seroquel (ex. 12F, p. 23).
Dr. Hogue did not refer to the claimant having significant physical restrictions,
and many of the questions pertaining to sitting, standing, walking, lifting, carrying,
reaching, handling and fingering were not addressed as this is something the source did
not test or assess. She was found to have no limits in lifting, carrying weights up to 50
pounds occasionally. Dr. Hogue mostly emphasized the psychiatric component and how
that could be a barrier to her ability to work full time (ex. 18F).
Based on this record, the Court concludes that the ALJ failed to give good reasons for
the weight assigned to Dr. Hogue’s opinions regarding plaintiff’s mental condition. First, the ALJ
avoided assigning weight to Dr. Hogue’s opinions by stating that the doctor’s summary “is not entitled
to any particular weight.” See 20 C.F.R. § 404.1527(c) (“Regardless of its source, we will evaluate
every medical opinion we receive. Unless we give a treating source’s opinion controlling weight under
paragraph (c)(2) of this section, we consider all of the following factors in deciding the weight we give
to any medical opinion.”).
Second, the ALJ discounted Dr. Hogue’s opinion because the doctor “is a primary care
source and hence was not overly involved in the treatment of the claimant’s depression and anxiety.”
PageID.57. The Court disagrees with this characterization of the doctor’s ability to render a medical
opinion regarding plaintiff’s mental impairments. It is well established that an ALJ can discount a
psychologist’s opinion about the claimant’s physical functioning, because a psychologist is not qualified
to diagnose a physical condition. See Buxton v. Halter, 246 F.3d 762, 775 (6th Cir. 2001). However,
as an M.D. licensed to practice medicine in Michigan, Dr. Hogue is qualified to treat both physical and
mental conditions. See Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (a duly licensed
physician under the laws of most states, can practice and render psychiatric services, i.e., prescribe
psychotropic medication, conduct psychotherapy, etc.); M.C.L. § 333.17001(f) (“‘Practice of medicine’
means the diagnosis, treatment, prevention, cure, or relieving of a human disease, ailment, defect,
complaint, or other physical or mental condition, by attendance, advice, device, diagnostic test, or other
means, or offering, undertaking, attempting to do, or holding oneself out as able to do, any of these
acts”) (emphasis added). “While the medical profession has standards which purport to restrict the
practice of psychiatry to physicians who have completed residency training programs in psychiatry, it
is well established that primary care physicians (those in family or general practice) ‘identify and treat
the majority of Americans’ psychiatric disorders.’” Sprague, 812 F.2d at 1232. Thus, for purposes of
a disability claim, “[a] treating physician’s opinion on the mental state of his patient constitutes
competent medical evidence even though the physician is not a certified psychiatrist.” Bushor v.
Commissioner of Social Security, No. 1:09-cv-320, 2010 WL 2262337 at * 10, fn. 4 (S.D. Ohio April
15, 2010). See also, Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1995) (where a medical doctor treating
a claimant for chronic pain expressed opinions regarding the claimant’s mental restrictions, those
opinions constituted “competent psychiatric evidence” and may not be discredited by an ALJ on the
ground that the doctor is not a board certified psychiatrist). For these reasons, the ALJ’s decision is
reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g). On remand, the Commissioner
should re-evaluate Dr. Hogue’s opinion with respect to plaintiff’s mental condition.
Plaintiff contends that the ALJ misinterpreted Ms. Bouwma’s opinions expressed in a
mental RFC questionnaire. PageID.382-390. Although Ms. Bouwma is a social worker, plaintiff refers
to her as plaintiff’s “treating psychologist since 1998” and suggests that the ALJ should treat Ms.
Bouwma’s opinions under the treating physician doctrine. PageID.706-710. The requirement that the
Commissioner give “good reasons” for the weight given to an opinion applies only to “treating sources”
(i.e., a physician, psychologist or other acceptable medical source who has provided medical treatment
or evaluation). See Smith v. Commissioner of Social Security, 482 F.3d 873, 876 (6th Cir.2007)
(“[b]efore determining whether the ALJ violated Wilson by failing to properly consider a medical
source, we must first classify that source as a ‘treating source’”); Burke ex rel. A.R.B. v. Astrue, No.
6:07-cv-376, 2008 WL 1771923at *7 (E.D. Ky. April 17, 2008) (“the deferential reason-giving
requirements for the rejection of a treating-source opinion necessarily do not apply where the source
in question is not an ‘acceptable medical source’”). An “acceptable medical source” refers to one of
the sources described in 20 C.F.R. § 404.1513(a), i.e., licensed physicians, licensed or certified
psychologists, licensed optometrists, licensed podiatrists, and qualified speech-language pathologists.
See 20 C.F.R. § 404.1502. As a social worker, Ms. Bouwma is considered an “other” medical source.
See 20 C.F.R. § 404.1513(d)(1) (“other” medical sources include nurse-practitioners, physicians’
assistants, naturopaths, chiropractors, audiologists and therapists). Because Ms. Bouwma is not an
acceptable medical source, the ALJ was neither required to give her opinions “complete deference” nor
required to meet the “good reason” requirement of § 404.1527(c)(2). See Smith, 482 F.3d at 876; Burke
ex rel. A.R.B., 2008 WL 1771923 at *7. Nevertheless, “the ALJ’s decision still must say enough to
allow the appellate court to trace the path of his reasoning.” Stacey v. Commissioner of Social Security,
451 Fed. Appx. 517, 519 (6th Cir. 2011) (internal quotation marks omitted). Here, the ALJ provided
a reasoned discussion of Ms. Bouwma’s opinion. PageID.55-56. Accordingly, this claim of error is
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
directed to re-evaluate Dr. Hogue’s opinion with respect to plaintiff’s mental condition. A judgment
consistent with this opinion will be issued forthwith.
Date: March 16, 2016
/s/ Ray Kent
United States Magistrate Judge
Plaintiff attached documents to her brief, including an update from Ms. Bouwma which may have
been omitted from the administrative transcript. PageID.712-713. Plaintiff, however, does not seek a remand
under sentence-six of 42 U.S.C. § 405(g) to review this new evidence. Accordingly, these documents will
not be considered.
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