Turner v. Commissioner of Social Security

Filing 17

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KAREN K. TURNER
Plaintiff,

Case No. 1:14-CV-1206

v.
HON. GORDON J. QUIST
COMMISSIONER OF SOCIAL
SECURITY

Defendant,
/
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 Karen Turner seeks review of the Commissioner’s decision denying her
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 Servs., 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 Servs., 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 Health and Human Servs., 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 Servs., 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 49 years of age on the date of the Administrative Law Judge’s (ALJ)
decision. (Tr. 7, 69). She graduated high school and obtained an associates degree. (Tr. 37).
Plaintiff was previously employed as a sales attendant, store detective, and radiologic technician.
(Tr. 63). Plaintiff applied for DIB on October 31, 2011, and SSI on January 12, 2012 alleging that
she had been disabled since May 18, 2009 due to rheumatoid arthritis, sleep apnea, osteoarthritis,
chronic back pain, depression, and anxiety. (Tr. 69, 79, 143–61). Plaintiff’s applications were denied

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on February 13, 2012, after which time she requested a hearing before an ALJ. (Tr. 91–101). On
April 24, 2013, Plaintiff appeared with her counsel before ALJ Donna Grit with testimony being
offered by Plaintiff and a vocational expert (VE). (Tr. 29–65). In a written decision dated July 12,
2013, the ALJ determined that Plaintiff was not disabled. (Tr. 7–23). Thereafter, the Appeals
Council declined to review the ALJ’s determination, making it the Commissioner’s final decision
in the matter. (Tr. 1–4). Plaintiff subsequently initiated this action pursuant to 42 U.S.C. § 405(g),
seeking judicial review of the ALJ’s decision.
ALJ’S DECISION
The social security regulations articulate a five-step sequential process for evaluating
disability. See 20 C.F.R. §§ 404.1520(a-f), 416.920(a-f).1 If the Commissioner can make a
dispositive finding at any point in the review, no further finding is required. See 20 C.F.R. §§
404.1520(a), 416.920(a).

The regulations also provide that if a claimant suffers from a

nonexertional impairment as well as an exertional impairment, both are considered in determining
the claimant’s residual functional capacity. See 20 C.F.R. §§ 404.1545, 416.945.
Plaintiff has the burden of proving the existence and severity of limitations caused

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1.

An individual who is working and engaging in substantial gainful activity will not be found to be
“disabled” regardless of medical findings (20 C.F.R. § 404.1520(b));

2.

An individual who does not have a “severe impairment” will not be found “disabled” (20 C.F.R. §
404.1520(c));

3.

If an individual is not working and is suffering from a severe impairment which meets the duration
requirement and which “meets or equals” a listed impairment in Appendix 1 of Subpart P of
Regulations No. 4, a finding of “disabled” will be made without consideration of vocational factors
(20 C.F.R. § 404.1520(d));

4.

If an individual is capable of performing work he or she has done in the past, a finding of “not
disabled” must be made (20 C.F.R. § 404.1520(e));

5.

If an individual’s impairment is so severe as to preclude the performance of past work, other factors
including age, education, past work experience, and residual functional capacity must be considered
to determine if other work can be performed (20 C.F.R. § 404.1520(f)).

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by her impairments and that she is precluded from performing past relevant work through step four.
Jones v. Comm’r of Soc. Sec., 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.
ALJ Grit determined Plaintiff’s claim failed at the fourth step of the evaluation. The
ALJ initially found that Plaintiff had not engaged in substantial gainful activity since her alleged
onset date. (Tr. 12). At the second step in the sequential evaluation, the ALJ determined Plaintiff
had the following severe impairments: (1) obesity; (2) positive RA factor with osteoarthritis; (3)
mild obstructive sleep apnea; (4) mild degenerative changes to the lumbar spine; (5) mild
degenerative changes to the cervical spine with bulging discs and no stenosis; and (6) very slight
dextroconvex curvature of the thoracic spine with mild spondylosis. (Tr. 12). 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. (Tr. 14). At the fourth step, the ALJ found
that Plaintiff retained the residual functional capacity (RFC) based on all the impairments:
to perform light work as defined in 20 CFR 404.1567(b) and 416.967(B) in
that she can lift and carry twenty pounds occasionally and ten pounds
frequently with no additional limitations in her ability to push or pull.
Further, the claimant would be able to stand and walk for six hours in an
eight-hour workday and sit six hours in an eight-hour workday. However,
the claimant would be unable to climb ladders, ropes, or scaffolds, and could
only frequently climb ramps and stairs, balance, stoop, kneel, crouch, or
crawl. Further, the claimant should avoid concentrated exposure to vibration
and extremes of cold.
(Tr. 14).
The ALJ also found at the fourth step that Plaintiff could perform her past relevant
work as a sales attendant, a store detective, and a radiological technician. (Tr. 22). The ALJ found
that this work did not require the performance of work related activities precluded by her residual

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functional capacity (RFC). (Tr. 22–23). Accordingly, the ALJ determined that Plaintiff has not been
under a disability, as defined in the Social Security Act, from May 18, 2009 (the alleged onset date)
through July 12, 2013 (the date of the decision). (Tr. 23).
DISCUSSION
Plaintiff’s statement of errors presents the following claims:
1.

The ALJ committed reversible error by not properly considering Plaintiff’s obesity.

2.

The ALJ committed reversible error by failing to properly weigh the evidence.

(Dkt. #14, PageID 744). The Court will discuss the issues below.
1.

Obesity

Plaintiff first argues that because the ALJ failed to properly evaluate and consider
her obesity, the RFC determination is not supported by substantial evidence.
While obesity is no longer considered a “listed impairment” by the Social Security
Administration, the effect of obesity on a claimant's ability to work must be specifically considered.
See, e.g., SSR 02–01P, Titles II and XVI: Evaluation of Obesity, 2002 WL 34686281 (Sept. 12,
2002); Shilo v. Comm’r of Soc. Sec., 600 F. App’x 956, 959 (6th Cir. 2015) (stating that “an ALJ
must consider the claimant's obesity, in combination with other impairments, at all stages of the
sequential evaluation”) (internal quotation marks omitted).
An ALJ is not obligated to employ any “particular mode of analysis” when assessing
the impact of a claimant's obesity. See id. at 959. Nevertheless, the ALJ must do more than merely
“mention the fact of obesity in passing.” Id. As the Sixth Circuit recently reiterated:
“Obesity . . .” must be considered throughout the ALJ's determinations,
“including when assessing an individual's residual functional capacity,”
precisely because “the combined effects of obesity with other impairments
can be greater than the effects of each of the impairments considered
separately.”

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Id. (quoting SSR 02–1P, 2002 WL 34686281 at *1–2).
The rationale for specifically considering the effect of obesity on a claimant’s ability
to function and perform work activities is straightforward:
Obesity “commonly leads to, and often complicates, chronic diseases of the
cardiovascular, respiratory, and musculoskeletal body systems.” For
example, “someone with obesity and arthritis affecting a weight-bearing joint
may have more pain and limitation than might be expected from the arthritis
alone.” The ALJ also must specifically take into account “the effect obesity
has upon the individual's ability to perform routine movement and necessary
physical activity within the work environment,” and consider how “fatigue
may affect the individual's physical and mental ability to sustain work
activity”—especially in “cases involving sleep apnea.”
Id. (quoting SSR 02–1P, 2002 WL 34686281 at *3–6).
The ALJ found Plaintiff’s obesity to be a severe impairment at step 2. The ALJ also
found that Plaintiff’s mild obstructive sleep apnea was a severe impairment. (A.R. 12). At step 4,
the ALJ noted that Plaintiff used a CPAP machine for her sleep apnea, and at the administrative
hearing, Plaintiff reported that the sleep apnea was no longer a problem. The ALJ further noted that
since using the CPAP machine, Plaintiff slept better and did not get migraine headaches. (Tr. 15).
Regarding Plaintiff’s obesity, the ALJ noted a visit Plaintiff had with her primary care doctor. At
the visit, Plaintiff was advised to lose weight, and the doctor noted that while movement of her limbs
caused some pain, an exam revealed no decrease in her range of motion. (Tr. 18). The ALJ also
noted that Plaintiff’s social worker thought Plaintiff was making poor choices, and needed to adopt
a formal plan to lose weight. (Tr. 18). Ultimately, the ALJ concluded:
In combination, the claimant’s reported pain from her osteoarthritis, the
degenerative changes to her spine, her obesity, and the fatigue that could be
caused by her obstructive sleep apnea, would limit her to light work.
Significantly, the claimant indicated that she was able to walk around a store,
taking breaks to stand, for about two hours . . . . In addition, the claimant’s
back impairments, as well as her obesity and her osteoarthritis, particularly
her complaints of pain in her knees and hands, would limit the claimant to
frequent climbing of ramps and stairs, balancing, stooping, kneeling,
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crouching, and crawling, and would prevent the climbing ladders, ropes, or
scaffolds . . . .
(Tr. 19). The ALJ’s analysis complies with Shilo because it considers the “effect obesity has upon
[Plaintiff's] ability to perform routine movement and necessary physical activity within the work
environment,” and “consider[s] how fatigue may affect [her] physical and mental ability to sustain
work activity.” Id. (internal quotation marks omitted). The ALJ’s conclusion is supported by
substantial evidence through both Plaintiff’s statements and other portions of the medical record.
(53-54, 60, 352, 369). Accordingly, Plaintiff’s claim fails.
2.

Medical Opinions

Plaintiff alleges that she is entitled to relief because the ALJ failed to properly assess
the medical opinions in the record. The Court disagrees.
The treating physician doctrine recognizes that medical professionals who have a
long history of caring for a claimant and her maladies generally possess significant insight into her
medical condition. See Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994). An ALJ must, therefore,
give controlling weight to the opinion of a treating source if: (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.” Gayheart v. Comm’r of Soc.
Sec., 710 F.3d 365, 375-76 (6th Cir. 2013) (quoting 20 C.F.R. § 404.1527).
Such deference is appropriate, however, only where the particular opinion “is based
upon sufficient medical data.” Miller v. Sec’y of Health and Human Servs., 1991 WL 229979, at*2
(6th Cir., Nov. 7, 1991) (citing Shavers v. Sec’y of Health and Human Servs., 839 F.2d 232, 235 n.1
(6th Cir. 1987)). The ALJ may reject the opinion of a treating physician where such is unsupported
by the medical record, merely states a conclusion, or is contradicted by substantial medical evidence.

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See Cohen, 964 F.2d at 528; Miller v. Sec’y of Health and Human Servs., 1991 WL 229979, at *2
(6th Cir., Nov. 7, 1991) (citing Shavers v. Sec’y of Health and Human Services, 839 F.2d 232, 235
n.1 (6th Cir. 1987)); Cutlip v. Sec’y of Health and Human Servs., 25 F.3d 284, 286-87 (6th Cir.
1994).
If an ALJ accords less than controlling weight to a treating source’s opinion, the ALJ
must “give good reasons” for doing so. Gayheart, 710 F.3d at 376. Such reasons must be “supported
by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent
reviewers the weight the adjudicator gave to the treating source’s medical opinion and the reasons
for that weight.” Id. This requirement “ensures that the ALJ applies the treating physician rule and
permits meaningful review of the ALJ’s application of the rule.” Id. (quoting Wilson v. Comm’r of
Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004)). Simply stating that the physician’s opinions “are not
well-supported by any objective findings and are inconsistent with other credible evidence” is,
without more, too “ambiguous” to permit meaningful review of the ALJ’s assessment. Id. at 376–77.
A.

Dr. Ramona Kwapiszewski

On April 9, 2013, Dr. Kwapiszewski completed two worksheets regarding Plaintiff’s
physical and mental residual functional capacity. (Tr. 484–89, 491–93). The doctor concluded that
Plaintiff was far more limited than the ALJ determined. After opining on various functional
limitations, Dr. Kwapiszewski stated Plaintiff was “unable to obtain gainful employment due to
chronic pain due to RA/OA. She suffers from moderate to severe OA [and] moderate to severe
depression. She would work if able, she has always demonstrated diligence and sincerity.” (Tr.
489).

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It is undisputed that Dr. Kwapiszewski qualifies as a treating physician.2

The ALJ

discounted Dr. Kwapiszewski’s opinion on the ground that such was not supported by the doctor’s
own past assessments encouraging Plaintiff to engage in exercise, and Plaintiff’s own statements
at the administrative hearing regarding her activities of daily living. (Tr. 21). These reasons amount
to “good reasons” and are further supported by substantial evidence. (Tr. 344–403, 458–62, 473).
For example, the doctor consistently told Plaintiff to exercise, and MRI results examined by Dr.
Kwapiszewski were not consistent with her opinion that Plaintiff suffered from severe osteoarthritis.
(Tr. 349–50, 354, 358–62). Substantial evidence thus supports the ALJ’s reasons for discounting Dr.
Kwapiszewski’s opinion, and Plaintiff’s claim of error regarding the doctor is rejected.
B.

Dr. Hylland

On November 15, 2011, Dr. Robert Hylland examined Plaintiff and rendered an
opinion in a letter to Dr. Kwapiszewski. Dr. Hylland noted that “weight loss is crucial for [Plaintiff]
to be successful in the long term.” (Tr. 325). He further opined, “I do not see her disabled from
gainful employment at this time but explained to her in the next six to 12 months I would like to see
her gradually improve with an exercise program, dieting and pain management when prudent.” (Tr.
325). The ALJ discounted the opinion because it did “not provide a function-by-function account
of the claimant’s limitations, and his opinion is actually a legal conclusion; the claimant is not
disabled from gainful employment.” (Tr. 20). The ALJ thus gave the opinion limited weight, noting
that it was significant that the doctor found Plaintiff capable of performing gainful activity. (Tr. 20).
While Plaintiff argues this opinion was improperly given only limited weight because
Dr. Hylland was a treating physician, it is unclear what benefit Plaintiff would derive if the opinion
2

Plaintiff’s brief misidentifies Dr. Kwapiszewski as Dr. Nadeau, a doctor who does not appear in the record.
(Dkt. #14, PageID 745). Plaintiff’s reply brief makes clear she was referring to Dr. Kwapiszewski. (Dkt. #16, PageID
768).

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were given greater weight. The doctor does not opine on any functional limitations Plaintiff may
experience, and indeed opined that Plaintiff was capable of performing substantial gainful activity.
That said, even though Dr. Hylland was a treating physician, the ALJ was not bound by the doctor's
conclusion regarding Plaintiff’s ability or inability to work. See 20 C.F.R. §§ 404.1527(d)(1) and
416.927(d)(1) (“A statement by a medical source that you are ‘disabled’ or ‘unable to work’ does
not mean that [the Commissioner] 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. Sec’y of Health and Human Servs., 790 F.2d 450, 452 (6th Cir.1986). While the Court concludes
that the ALJ's rationale is supported by substantial evidence, more significantly, Dr. Hylland's
opinion is not inconsistent with the ALJ's RFC determination. Thus, whether the ALJ articulated
good reasons for discounting Dr. Hylland’s opinion is irrelevant as such is not inconsistent with the
ALJ's RFC determination. Accordingly, this argument is rejected.3
C.

Dr. Robert Mogul

Plaintiff finally argues that the ALJ violated the Sixth Circuit’s holding in Gayheart
v. Commissioner of Social Security in giving great weight to the opinion of Dr. Robert Mogul, a
non-examining physician who reviewed the record for the state disability agency and opined on
Plaintiff’s physical RFC. On April 30, 2012, Dr. Mogul stated that Plaintiff could occasionally lift
and carry twenty pounds. She could stand and walk for about six hours in an eight hour workday,
could frequently climb ramps and stairs, balance, stoop, kneel, crouch, and occasionally crawl. (Tr.

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The Court notes that an orthopaedic surgeon, Stephen Montes, D.O., examined Plaintiff and provided a report
and assessment of her ability to do work related activities. (Tr. 666–84). W hile Plaintiff's brief mentioned Dr. M ontes,
it did not address any error with respect to the ALJ's evaluation of the doctor's opinions. Rather the brief merely notes
the ALJ rejected the opinion despite “his detailed findings.” (Dkt. #14, PageID 745). “[I]ssues adverted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.” McPherson v.
Kelsey, 125 F.3d 989, 995–96 (6th Cir.1997). To the extent Plaintiff raises a claim of error regarding Dr. Montes,
Plaintiff has waived that argument.

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405–07). Plaintiff had no manipulative, visual, communicative, or environmental limitations. (Tr.
407–08). The ALJ gave the opinion “great weight,” noting that it was consistent with Dr.
Kwapiszewski’s treatment notes and the assessment of Dr. Hylland. (Tr. 22). Plaintiff argues the
ALJ’s treatment of the opinion violates Gayheart.
In Gayheart, the Sixth Circuit provided guidance to ALJs regarding how to assess
opinions from nonexamining sources:
[O]pinions from nontreating and nonexamining sources are never assessed
for “controlling weight.” The Commissioner instead weighs these opinions
based on the examining relationship (or lack thereof), specialization,
consistency, and supportability, but only if a treating-source opinion is not
deemed controlling. 20 C.F.R. § 404.1527(c). Other factors “which tend to
support or contradict the opinion” may be considered in assessing any type
of medical opinion. Id. § 404.1527(c)(6).
710 F.3d at 376. “Social Security regulations recognize that opinions from non-examining state
agency consultants may be entitled to significant weight, because these individuals are ‘highly
qualified’ and are ‘experts in Social Security disability evaluation.’” Cobb v. Comm’r of Soc. Sec.,
No. 1:12–cv–2219, 2013 WL 5467172, at *5 (N.D. Ohio Sept. 30, 2013) (quoting 20 C.F.R. §§
404.1527(e) (2)(i), 416.927(e)(2)(i)); see Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994);
Brooks v. Comm’r of Soc. Sec., 531 F. App'x 636, 642 (6th Cir. 2013) (“[I]n appropriate
circumstances, opinions from State agency medical and psychological consultants . . . may be
entitled to greater weight than the opinions of treating or examining sources.”).
While the ALJ gave the opinion of Dr. Mogul “great weight,” there is no indication
in the record that the ALJ believed the opinion was entitled to controlling weight nor that the ALJ
gave the opinion controlling weight. Further, consistent with 20 C.F.R. § 404.1527(c)(6), the ALJ
noted Dr. Mogul’s position as a reviewer for the state agency, thus pointing to the specialization of
Dr. Mogul. Accordingly, the ALJ's decision to give the opinion great weight is supported by
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substantial evidence.
Plaintiff also argues that weight was improperly given to Dr. Mogul because he did
not review the entire record. “When an ALJ relies on a non-examining source who did not have the
opportunity to review later submitted medical evidence, especially when that evidence reflects
ongoing treatment,” the Sixth Circuit requires “some indication that the ALJ at least considered
these [new] facts before giving greater weight to an opinion that is not based on a review of a
complete case record.” Id. (internal citations and quotation marks omitted). The record shows the
ALJ considered the later additions to, among other things, Dr. Montes’ opinion regarding Plaintiff’s
RFC. (Tr. 684). Accordingly, Plaintiff's argument lacks merit.
CONCLUSION
For the reasons set forth herein, the Commissioner’s decision will be AFFIRMED. A
separate judgment shall issue.

Dated: December 11, 2015

/s/ Gordon J. Quist
GORDON J. QUIST
United States District Judge

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