Reed v. Commissioner of Social Security

Filing 21

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

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SELENE REED,
Plaintiff,
v.

Case No. 1:14-cv-1129
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) which
denied her claim for disability insurance benefits (DIB) and supplemental security income (SSI).
Plaintiff was born in 1965. PageID.1555. She completed a GED and had previous
employment as a cashier, lens fabricator, telemarketer, and telephone customer service person.
PageID.1560. Plaintiff alleged that she was disabled as of June 1, 2007. PageID.1555. Plaintiff
identified her disabling conditions as panic attacks, depression, arthritis, diabetes, chronic obstructive
pulmonary disease (COPD), congestive heart failure, mass on kidney (possible cancer), and high
blood pressure. PageID.1559. An administrative law judge (ALJ) reviewed plaintiff’s claim de novo
and entered a written decision denying benefits on January 10, 2013. PageID.1388-1398. 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

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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). 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).

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“The federal court’s standard of review for SSI cases mirrors the standard applied in
social security disability cases.” D’Angelo v. Commissioner of Social Security, 475 F. Supp. 2d 716,
719 (W.D. Mich. 2007). “The proper inquiry in an application for SSI benefits is whether the
plaintiff was disabled on or after her application date.” Casey v. Secretary of Health and Human
Services, 987 F.2d 1230, 1233 (6th Cir. 1993).
II. ALJ’S DECISION
Plaintiff’s claim failed at the fifth step of the evaluation. At the first step, the ALJ
found that plaintiff had not engaged in substantial gainful activity since the alleged onset date of June
1, 2007 and that she met the insured status requirements of the Act through March 31, 2013.
PageID.1390. At the second step, the ALJ found that plaintiff had severe impairments of diabetes
mellitus, degenerative disc disease of the lumbar spine, bilateral shoulder calcific tendinosis, COPD,
affective disorder-depression, and anxiety. 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.1391.
The ALJ decided at the fourth step that:
[T]he residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) except: the claimant can lift and carry twenty pounds
occasionally and ten pounds frequently; sit, stand, and walk for six hours each; push
and pull as much as can lift and carry; occasionally reach overhead bilaterally;
frequently reach all other, handle, finger, feel, and climb ramps and stairs; never
climb ladders and scaffolds or crawl; occasionally balance, stoop, kneel, and crouch;
avoid unprotected heights and dangerous moving mechanical parts; no concentrated
exposure to extreme cold and extreme heat; and no concentrated exposure to fumes,
odors, dusts, gases, and poor ventilation. The claimant is limited to simple tasks;
limited to routine and repetitive tasks; limited to simple work-related decisions; and
the claimant would miss more than one or two days of work, but not more than
twelve days per year and on task eighty-five percent.

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PageID.1392. The ALJ also found that plaintiff was unable to perform any past relevant work.
PageID.1396.
At the fifth step, the ALJ determined that plaintiff could perform a significant number
of unskilled jobs at the light exertional level in the national economy. PageID.1397-1398.
Specifically, plaintiff could perform the following unskilled jobs in the Lower Peninsula of
Michigan: receptionist (1,600 jobs); office clerk-general (5,400 jobs); and counter or retail clerk
(1,500 jobs). PageID.1397. Accordingly, the ALJ determined that plaintiff has not been under a
disability, as defined in the Social Security Act, from June 1, 2007 (the alleged onset date) through
January 10, 2013 (the date of the decision). PageID.1398.
III. ANALYSIS
Plaintiff did not set forth a statement of errors in the form directed by the Court. See
Notice (docket no. 8). Upon reviewing plaintiff’s brief, the Court will address two claims identified
by plaintiff.
A.

Did the ALJ fail to comply with 20 C.F.R. §§
404.1527 and 416.927 in not according adequate
weight to the opinion of Ms. Reed’s treating
physicians and did the ALJ fail to consider the
various factors set forth in 20 C.F.R. §§ 404.1527
and 416.927(d) in evaluating the opinion of the
treating physicians?

Plaintiff contends that the ALJ did not properly evaluate the opinions of two treating
physicians, Seth Egleston, M.D. and Sajid Hussain, M.D. 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.
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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)
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.

Dr. Egelston1

The ALJ addressed Dr. Egelston’s opinion as follows:

1

Plaintiff sometimes refers to Dr. Egelston as “Dr. Egleston.”

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The October 2012 medical needs report of Seth Egelston, M.D., indicated that
the claimant had diabetes, hypertension, and anxiety. The report indicated that the
claimant could not work. She had physical limitations, and she could only lift or
carry up to ten pounds. The claimant would need assistant with shopping, doing
laundry, and doing housework (Exhibit 38F). I give minimal weight to the
assessment of Dr. Egelston, as it is inconsistent with the medical evidence, including
treatment records and objective clinic findings. For instance, just few months prior
to the evaluation report, in June 2012, office visit report indicated that the claimant
was doing well with pain medications, which were controlling her symptoms. The
claimant was still smoking, and she was advised to stop smoking (Exhibit 33F).
There are no debilitating intervening events that would justify the limitations as
assessed by Dr. Egelston. Furthermore, during the hearing, the claimant testified that
she could perform activities of daily living.
PageID.1394.
While the ALJ gave good reasons for the weight assigned to Dr. Egelston’s opinion,
he made few references to Dr. Egelston’s medical records. As it turns out, the doctor’s records were
not part of the administrative transcript. Plaintiff noted that 40 pages of Dr. Egelston’s records “were
not exhibited at the hearing level” and attached those documents to her brief. See PageID.1048,
1070-1113. When a plaintiff submits evidence that has not been presented to the ALJ, the Court
may consider the evidence only for the limited purpose of deciding whether to issue a sentence-six
remand under 42 U.S.C. § 405(g). See Sizemore v. Secretary of Health and Human Services, 865
F.2d 709, 711 (6th Cir.1988). Under sentence-six, “[t]he court . . . may at any time order the
additional evidence to be taken before the Commissioner of Social Security, but only upon a showing
that there is new evidence which is material and that there is good cause for the failure to incorporate
such evidence into the record in a prior proceeding . . .” 42 U.S.C. § 405(g). In a sentence-six
remand, the court does not rule in any way on the correctness of the administrative decision, neither
affirming, modifying, nor reversing the Commissioner’s decision. Melkonyan v. Sullivan, 501 U.S.
89, 98 (1991). “Rather, the court remands because new evidence has come to light that was not
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available to the claimant at the time of the administrative proceeding and that evidence might have
changed the outcome of the prior proceeding.” Id. “The party seeking a remand bears the burden
of showing that these two requirements are met.” Hollon ex rel. Hollon v. Commissioner of Social
Security, 447 F.3d 477, 483 (6th Cir. 2006).
In this instance, it is undisputed that Dr. Egelston’s records were omitted from the
administrative transcript. Indeed, defendant admits that “ the entirety of Dr. Egelston’s treatment
notes was inadvertently omitted from the administrative record” and subsequently filed them as a
supplemental administrative transcript (docket no. 17-3, PageID.2141-2180). PageID.2187. There
is no question that these documents should have been part of the original administrative transcript
reviewed by the ALJ. Under the circumstances, a sentence-six remand is appropriate to allow the
Commissioner an opportunity to review Dr. Egelston’s medical records which form the basis of the
doctor’s opinion. Accordingly, this matter will be remanded for that limited purpose.
2.

Dr. Hussain

Plaintiff also raised a cursory argument that the ALJ did not evaluate the opinions of
her treating psychiatrist, Dr. Hussain. PageID.1056, 2106, 2114.

These opinions, set forth in

Exhibit 40F, were referenced at the administrative hearing held on December 14, 2012.
PageID.1407, 1410. However, the documents in Exhibit 40F did not exist at the time of the
administrative hearing, having been signed on January 7 and 22, 2013. PageID.2106, 2114.
Furthermore, the Appeals Council admitted Exhibit 40F as new evidence in its order entered
September 5, 2014. PageID.1136. When a plaintiff submits evidence that has not been presented
to the ALJ, the Court may consider the evidence only for the limited purpose of deciding whether
to issue a sentence-six remand. See Sizemore, 865 F.2d at 711. As discussed, plaintiff bears the
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burden of demonstrating the materiality and good cause necessary to obtain a sentence-six remand.
See Hollon, 447 F.3d at 483. Here, plaintiff does not explain the apparent discrepancy in the record
with respect to Exhibit 40F, nor does she address materiality or good cause in the context of a
sentence-six remand.2 The Court is not required to scour the record for potential arguments on her
behalf. Browder v. Ankrom, 473 Fed. Appx. 499, 500 (6th Cir. 2012). Accordingly, this claim of
error is denied.
B.

Did the substantial evidence of record document
that Ms. Reed is disabled and unable to perform
the basic mental demands of unskilled work as
described in SSR 85-15, warranting an award of
benefits?

Plaintiff contends that the ALJ’s residual functional capacity (RFC) assessment and
the hypothetical question posed to the vocational expert (VE) which incorporated the RFC failed to
provide the full limitations occasioned by plaintiff’s severe mental impairments of depression and
anxiety. Plaintiff has not provided any meaningful argument on this issue. In addition, while
plaintiff’s claims that she is entitled to an award of benefits under Social Security Ruling (SSR) 8515, she does not address that SSR in her brief.

The gist of plaintiff’s claim is that the ALJ

incorrectly accounted for her severe impairments of depression and anxiety by limiting her to work
which involved simple tasks, routine and repetitive tasks, and simple work-related decisions.
PageID.1059, 1392.
RFC is a medical assessment of what an individual can do in a work setting in spite
of functional limitations and environmental restrictions imposed by all of his medically determinable

2

Unlike the situation involving Dr. Egelston’s records, defendant has not advised the Court that Dr.
Hussain’s records were inadvertently omitted from the administrative transcript.

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impairments. 20 C.F.R. §§ 404.1545 and 416.945. It is “the maximum degree to which the
individual retains the capacity for sustained performance of the physical-mental requirements of
jobs.” 20 C.F.R. Part 404, Subpt. P, App. 2, § 200.00(C). Here, the ALJ determined that plaintiff
suffered from panic attacks and depression, that she would be at mild to moderate risk for psychiatric
decompensation under stressful work conditions, that she could sustain her attention to complete
simple tasks, that she could carry out simple instructions. PageID.1394. After reviewing these
conditions, the ALJ found that the RFC “would adequately accommodate any limitations as to the
claimant’s ability to handle work related stress conditions since she is limited to simple, routine, and
repetitive work and simple work related decisions.” PageID.1394. The ALJ’s limitations were
appropriate. See, e.g., Smith v. Halter, 307 F.3d 377, 378-79 (6th Cir. 2001) (where a claimant
suffered from depression with problems involving concentration, persistence or pace resulting in the
failure to complete tasks in a timely manner, those limitations were appropriately addressed by
restricting the claimant to jobs that were “routine and low stress, and do not involve intense
interpersonal confrontations, high quotas, unprotected heights, or operation of dangerous
machinery”); Allison v. Apfel, No. 99-4090, 2000 WL 1276950 at *4 (6th Cir. Aug. 30, 2000) (where
the ALJ found that the claimant suffered from nonexertional impairments of a borderline personality
disorder, borderline intellectual functioning and substance addiction, the ALJ’s RFC accounted for
these impairments by limiting the claimant to simple, repetitive and routine work at the light
exertional level, which was analogous to unskilled light work). Accordingly, plaintiff’s claim of
error is denied.

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IV. CONCLUSION
The ALJ’s decision shall be remanded pursuant to sentence six of 42 U.S.C. § 405(g).
On remand, the Commissioner is directed to review Dr. Egelston’s October 2012 report in light of
those records and, if appropriate, adjust plaintiff’s RFC. An order consistent with this opinion will
be issued forthwith.

Dated: March 21, 2016

/s/ Ray Kent
Ray Kent
United States Magistrate Judge

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