Kaufmann v. Commissioner of Social Security
OPINION; signed by Magistrate Judge Ray Kent (Magistrate Judge Ray Kent, fhw)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SHANNON L. KAUFMANN,
Case No. 1:14-cv-1230
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 1970. PageID.297. She completed high school, had additional
training as a certified Michigan peer support specialist, and had past employment as a temporary
laborer, substitute school bus driver, and mental health aide. PageID.156-157, 198, 302. Plaintiff
alleged a disability onset date of March 1, 2010. PageID.297. She identified her disabling
conditions as bipolar I disorder, chronic fatigue syndrome, fibromyalgia and complex migraines.
PageID.301. The administrative law judge (ALJ) reviewed plaintiff’s claim de novo and entered a
written decision denying benefits on June 24, 2013. PageID.143-157. 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
(6th Cir. 1990). In applying the above standard, the Commissioner has developed a five-step
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 fourth 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
March 1, 2010, and that she meets the insured status requirements of the Act through June 30, 2016.
PageID.145. At the second step, the ALJ found that plaintiff had severe impairments of obesity,
fibromyalgia, trochanteric bursitis, status post dislocated shoulder, fatigue, chronic pain, asthma,
obstructive sleep apnea (OSA), and status post hysterectomy and endometriosis. PageID.146. 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.150.
The ALJ decided at the fourth step that:
[T]he claimant has the residual functional capacity to perform sedentary work as
defined in 20 CFR 404.1567(a) except the claimant can lift and carry up to twenty
pounds less than frequently and ten pounds frequently. The claimant can stand and
walk for two hours in an eight-hour day. The claimant can sit for up to six hours in
an eight-hour day. The claimant cannot climb ladders, ropes, or scaffolds. The
claimant can less than frequently climb ramps and stairs or perform any stooping,
kneeling, crouching, and crawling. The claimant does not have any limits on
balancing. The claimant should avoid concentrated exposure to the extremes of heat,
cold, and humidity as well as fumes, odors, dusts, gases, and poor ventilation. The
claimant cannot bilaterally overhead reach.
PageID.151. The ALJ also found that plaintiff was capable of performing her past relevant work as
a mental health aide, work which did not require the performance of work-related activities
precluded by her residual functional capacity (RFC). PageID.157. Accordingly, the ALJ found that
plaintiff has not been under a disability, as defined in the Social Security Act, from March 1, 2010
(the alleged onset date) through June 24, 2013 (the date of the decision). PageID.127.
Plaintiff raised four issues (with sub-issues) on appeal.
The ALJ failed to follow the “slight abnormality
standard” when she found that Ms. Kaufmann’s
affective disorders are not a “severe impairment.”
Plaintiff contends that the ALJ failed to include her affective disorders (“bipolar
syndrome and depression”) as severe impairments. A “severe impairment” is defined as an
impairment or combination of impairments “which significantly limits your physical or mental
ability to do basic work activities.” 20 C.F.R. § 404.1520(c). Upon determining that a claimant has
one severe impairment at step two of the sequential evaluation, the ALJ must continue with the
remaining steps in the evaluation. See Maziarz v. Secretary of Health & Human Services, 837 F.2d
240, 244 (6th Cir. 1987). Once the ALJ determines that a claimant suffers from a severe impairment,
the fact that the ALJ failed to classify a separate condition as a severe impairment does not constitute
reversible error. Id. An ALJ can consider such non-severe conditions in determining the claimant’s
RFC. Id. “The fact that some of [the claimant’s] impairments were not deemed to be severe at step
two is therefore legally irrelevant.” Anthony v. Astrue, 266 Fed. Appx. 451, 457 (6th Cir. 2008).
Here, the ALJ found that plaintiff had a number of severe impairments. PageID.146. The ALJ’s
failure to include additional severe impairments at step two is legally irrelevant. Accordingly,
plaintiff’s claim of error will be denied.
The ALJ violated 20 C.F.R. §404.1513(a) by failing
to consider Mark Hamilton, MA, LLP, an
acceptable medical source.
Plaintiff contends that Mark Hamilton, MA, LLP, should be treated as an acceptable
medical source. The Court disagrees. The regulations define an “acceptable medical source” as
licensed physicians, licensed or certified psychologists, licensed optometrists, licensed podiatrists,
and qualified speech-language pathologists. See 20 C.F.R. § 404.1513(a). An “acceptable medical
source” receives special deference. See 20 C.F.R. § 404.1513(a) (“We need evidence from acceptable
medical sources to establish whether you have a medically determinable impairment(s)”). A treating
source who is not an “acceptable medical source” is deemed an “other source.” See 20 C.F.R. §
404.1513(d) (“ In addition to evidence from the acceptable medical sources listed in paragraph (a)
of this section, we may also use evidence from other sources to show the severity of your
impairment(s) and how it affects your ability to work. Other sources include, but are not limited to
-- (1) Medical sources not listed in paragraph (a) of this section (for example, nurse-practitioners,
physicians' assistants, naturopaths, chiropractors, audiologists, and therapists)[.]”).
In the present case, Mr. Hamilton was a “limited licensed psychologist,” not a
“licensed psychologist.” See 20 C.F.R. § 404.1513(a). In Michigan, an individual with a master’s
degree in psychology may obtain a “limited” psychology license. M.C.L. § 333.18223(b)(2)
(authorizing such licenses). Normally, a limited licensed psychologist must be supervised. Id. In
Richardson v. Commissioner of Social Security, No. 1:12-cv-776, 2013 WL 5211245 (W.D. Mich.
Sept. 16, 2013), affirmed 570 Fed. Appx, 537 (6th Cir. 2014), this Court determined that a limited
licensed psychologist is not an acceptable medical source under the regulations:
Plaintiff contends that the ALJ gave little or no weight to a treating source,
whom plaintiff refers to as “Dr. Maureen Fabiano, the treating psychologist,” “Dr.
Fabiano,” “M.A. Fabiano,” and “Dr[.] Maureen Fabiano.” Plaintiff's Brief at pp. 3,
11–13. The record reflects that Ms. Fabiano is not a doctor, but rather holds a
master’s degree and is a limited licensed psychologist “MA/LLP” (AR 532).
The ALJ could properly discount Ms. Fabiano’s opinions because she is not
an acceptable medical source under 20 C.F.R. § 416.913(a) (defining acceptable
medical sources as licensed physicians, licensed or certified psychologists, licensed
optometrists (for establishing visual disorders only), licensed podiatrists (for
establishing impairments of the foot, or foot and ankle only), and qualified
speech-language pathologists (for establishing speech or language impairments only).
While Ms. Fabiano’s opinions can be considered as evidence from an “other”
medical source, they are not entitled the weight given to the opinion of an
“acceptable medical source” such as a doctor. See 20 C.F.R. § 416.913(d) (1)
(evidence from “other” medical sources includes information from
nurse-practitioners, physicians’ assistants, naturopaths, chiropractors, audiologists
and therapists). See also, Gayheart, 710 F.3d at 378 (psychological therapist is not
an acceptable medical source under the regulations); Shontos v. Barnhart, 328 F.3d
418, 425–26 (8th Cir.2003) (nurse practitioner is not an acceptable medical source
under § 404.1513(a), but can be considered as an “other” medical source under 20
C.F.R. § 404.1513(d)(1)); Nierzwick v. Commissioner of Social Security, 7 Fed.
Appx. 358, 363 (6th Cir.2001) (physical therapist’s report not afforded significant
weight because the therapist is not recognized as an acceptable medical source).
Pursuant to Social Security Ruling (SSR) 06–3p, opinions from other medical
sources, such as nurse practitioners, physicians’ assistants and therapists “are
important and should be evaluated on key issues such as impairment severity and
functional effects, along with other relevant evidence in the file.” See SSR 06–3p.
The ALJ evaluated and then properly discounted Ms. Fabiano's opinions consistent
with SSR 06–3p. Accordingly, plaintiff’s claim of error should be denied.
Richardson, 2013 WL 5211245 at *7-8 (footnote omitted).
In affirming this decision, the Sixth Circuit rejected plaintiff’s claim that the ALJ
improperly evaluated the opinion of limited licensed psychologist Fabiano:
Richardson next argues that the ALJ erred by discounting the medical
opinions of examining psychologist Dr. J. Keith Ostien and case worker Maureen
Fabiano, who both concluded that Richardson had significant work-related
limitations in mental functioning. The ALJ reasonably gave little weight to the
medical opinion of Ms. Fabiano because she is not a physician and her conclusion
that Richardson had significant impairments conflicted with other substantial
evidence in the record, including Richardson’s 2008 mental health assessment,
Fabiano's own treatment notes, and Dr. Pinaire’s opinion. Likewise, the ALJ
reasonably discounted Dr. Ostien’s opinion because it was given after a single
evaluation and his conclusions were based largely on Richardson’s vague statements
concerning his circumstances and condition.
Richardson v. Commissioner of Social Security, 570 Fed. Appx. 537, 538-39 (6th Cir. 2014)
Finally, in Smith-Johnson v. Commissioner of Social Security, 579 Fed. Appx, 426
(6th Cir. 2014), a case in which the plaintiff took the opposite position as asserted in here (i.e., that
an LLP who issued an unfavorable opinion was not an acceptable medical source), the court
explained that in evaluating an opinion prepared by a limited licensed psychologist, the “acceptable
medical source” is not the limited licensed psychologist, but rather the supervising licensed
psychologist who co-signed the opinion:
On April 29, 2008, Smith–Johnson submitted to a psychological evaluation by Mary
P. Koopman, a licensed professional counselor and limited licensed psychologist,
which was cosigned by P. Douglas Callan, Ph.D., a licensed psychologist.
Although Smith-Johnson takes issue with the consideration of Koopman’s
report because she is not an “acceptable medical source,” she makes no attempt to
explain why a report that is co-signed by an acceptable medical source (a licensed
psychologist) cannot be considered. Even assuming, however, that the report does
not come from an acceptable medical source, the regulations plainly permit
consideration of that report. Specifically, the objective findings in the report are
properly considered because they are relied upon by Dr. Kriauciunas, a
non-examining state agency consultant whose opinion should be given weight only
“insofar as [it is] supported by evidence in the case record.” SSR 96–6p; see also 20
C.F.R. § 404.1527(c)(3)-(4). Koopman’s opinions also are properly considered under
the regulations that require evaluation of every medical opinion “[r]egardless of its
source,” and that permit “other sources” to be used to determine severity. 20 C.F.R.
§§ 404.1513(d), 404.1527(c).
Smith-Johnson, 579 Fed. Appx. at 427, 435. Accordingly, plaintiff’s claim of error is denied.
The ALJ’s RFC determination and hypothetical
are not supported by substantial evidence.
The ALJ committed legal error when he gave
“limited weight” to the opinion of plaintiff’s
treating psychologist and therapist and failed to
comply with § 404.1527 in determining plaintiff’s
Plaintiff contends that the ALJ’s RFC determination is not supported by substantial
evidence because he erred in evaluating the opinions of Fred Boothby, NP and Mr. Hamilton. 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 impairments.
20 C.F.R. § 404.1545. It is defined as “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). RFC is determined at step four of the sequential evaluation. See
Gentry v. Commissioner of Social Security, 741 F.3d 708, 722 (6th Cir. 2014).
For the reasons discussed, supra, neither NP Boothby nor Mr. Hamilton were
acceptable medical sources. Rather, “nurse practitioners, therapists, and the like” are evaluated as
“other” medical sources, sometimes referred to as “non-acceptable medical sources.” See Amato
Noto v. Commissioner of Social Security, -- Fed. Appx. --, 2015 WL 7253050 at *4 (6th Cir. Nov.
16, 2015). The ALJ addressed NP Boothby’s opinions, one of which was co-signed by Mr.
Hamilton,1 as follows:
I have read and considered the opinion of family nurse practitioner, Fred
Boothby, FNP (Exhibits l5F and 31F). Mr. Boothby opined that the claimant is
unable to meet most competitive standards to do unskilled or semiskilled work
(Exhibit Bl5F/4 and 5). He further opined that the claimant had moderate restrictions
in activities of daily living, and marked restrictions in maintaining social functioning
and maintaining concentration, persistence, or pace (Exhibit 15F/5). I give this
opinion little weight. First, as a nurse practitioner, Mr. Boothby’s opinion is not from
The co-signed opinion is a “Mental impairment questionnaire (RFC & Listings)” dated May 31,
2012, PageID.630-635, and the other opinion is a “Signed Statement of Fred Boothby” dated April 3, 2013,
an acceptable medical source. Second, Mr. Boothby’s opinion is inconsistent with
his own treatment notes. He opined that when he sees the claimant, she is very
distressed most of the time (Exhibit 3lF/l ). However, in the fall of 2012 he reported
that the claimant had a bright affect (Exhibit B26F/6). Further, in February 2013, his
treatment notes show that the claimant’s mood appeared to be happy (Exhibit
B26F/3). Mr. Boothby’s opinion is inconsistent with other mental status examination
[sic] of the claimant where the claimant was found to be cooperative with good
insight, judgment, and impulse control (Exhibits B8F/3, 6, and 36, Bl lF/7, and
B26F/3). Accordingly, I give this opinion little weight as it is inconsistent with the
claimant’s residual functional capacity.
The regulations provide that the agency will evaluate every medical opinion received
“[r]egardless of its source,” and that unless a treating source’s opinion is given controlling weight,
the agency will consider the factors set forth in § 404.1527(c)(1)-(6) in deciding the weight given
to any medical opinion. See 20 C.F.R. § 404.1527(c). While the ALJ is required to give “good
reasons” for the weight assigned a treating source’s opinion, Wilson v. Commissioner of Social
Security, 378 F.3d 541, 545 (6th Cir. 2004), this articulation requirement does not apply when an
ALJ evaluates the report of a medical source who is not a treating, acceptable medical source. See
Smith v. Commissioner of Social Security, 482 F.3d 873, 876 (6th Cir.2007). The opinion of a
“non-acceptable medical source,” such as a nurse practitioner or therapist, “is not entitled to any
particular weight or deference -- the ALJ has discretion to assign it any weight he feels appropriate
based on the evidence of record.” Amato Noto, -- Fed. Appx. --, 2015 WL 7253050 at *4. However,
“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 evaluation of the opinions
prepared by NP Boothby and Mr. Hamilton. Accordingly, plaintiff’s claim of error is denied.
The ALJ’s RFC finding is not supported by
substantial evidence because she did not include
any limitations pertaining to plaintiff’s affective
Plaintiff contends that the RFC determination is flawed because it did not take into
account plaintiff’s significant impairments of bipolar disorder and depression. The ALJ
acknowledged that plaintiff was diagnosed with bipolar disorder and borderline personality disorder.
PageID.148, 551. However, the diagnosis of a condition says nothing about the severity of the
condition. Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988). See McKenzie v. Commissioner of
Social Security, No. 99-3400, 2000 WL 687680 at *5 (6th Cir. May 19, 2000) (“the mere diagnosis
of an impairment does not render an individual disabled nor does it reveal anything about the
limitations, if any, it imposes upon an individual”).
Here, the ALJ found that “[t]he claimant’s medically determinable mental
impairments of bipolar disorder and borderline personality disorder, considered singly and in
combination, do not cause more than minimal limitation in the claimant’s ability to perform basic
mental work activities and are therefore nonsevere.” PageID.148. In reaching this determination,
the ALJ performed an in-depth review of plaintiff’s medical records. PageID.148-150. As
discussed, although the ALJ did not find these impairments to be severe impairments, she could
consider these non-severe conditions in determining the claimant’s RFC. Maziarz, 837 F.2d at 244.
However, in this case, the ALJ found no significant limitation which would lead to a work restriction
based on these diagnoses. PageID.148-150.
When courts review an ALJ’s decision under 42 U.S.C. § 405(g) to determine
whether substantial evidence supports that decision, “we do not try the case de novo, resolve
conflicts in evidence, or decide questions of credibility.” Bass v. McMahon, 499 F.3d 506, 509 (6th
Cir. 2007). Even if this 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. “As long as the ALJ
cited substantial, legitimate evidence to support his factual conclusions, we are not to second-guess.”
Ulman v. Commissioner, 693 F.3d 709, 714 (6th Cir.2012). Here, the ALJ’s evaluation of plaintiff’s
bipolar disorder and borderline personality disorder is supported by substantial evidence.
Accordingly, plaintiff’s claim of error is denied.
The hypothetical question posed to the Vocational
Expert (VE) failed to include all plaintiff’s
well-established impairments or symptoms.
Although listed in the statement of errors, plaintiff does not develop this argument,
other than to state that the limitations set forth in the ALJ’s hypothetical question are not supported
by plaintiff’s RFC. PageID.1135. An ALJ’s finding that a plaintiff possesses the capacity to
perform substantial gainful activity that exists in the national economy must be supported by
substantial evidence that the plaintiff has the vocational qualifications to perform specific jobs.
Varley v. Secretary of Health and Human Services, 820 F.2d 777, 779 (6th Cir. 1987). This evidence
may be produced through the testimony of a VE in response to a hypothetical question which
accurately portrays the claimant’s physical and mental limitations. See Webb v. Commissioner of
Social Security, 368 F.3d 629, 632 (6th Cir. 2004); Varley, 820 F.2d at 779. However, a hypothetical
question need only include those limitations which the ALJ accepts as credible. Blacha v. Secretary
of Health and Human Services, 927 F.2d 228, 231 (6th Cir. 1990). Here, the hypothetical posed to
the VE incorporated the ALJ’s RFC determination. Accordingly, plaintiff claim of error is denied.
The ALJ’s finding that at Step 5 [sic] that Ms.
Kaufmann could perform her past relevant work
is not supported by the evidence because plaintiff
needed accommodations from her employer, which
are not found in the mental health aid position
generally in the national economy.
It is the claimant’s burden at the fourth step of the sequential evaluation to show an
inability to return to any past relevant work. Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980).
To support a finding that a claimant can perform his or her past relevant work, the Commissioner’s
decision must explain why the claimant can perform the demands and duties of the past job as
actually performed or as ordinarily required by employers throughout the national economy.
D’Angelo v. Commissioner of Social Security, 475 F. Supp. 2d 716, 723-24 (W.D. Mich. 2007),
citing Studaway v. Secretary of Health & Human Services, 815 F.2d 1074, 1076 (6th Cir.1987). See
SSR 82-61, 1982 WL 31387 at *2 (1982) (the determination at step four can be supported by the
finding that the claimant can perform her past relevant work as “actually performed,” or, “as
generally required by employers throughout the national economy”). The Act requires that a
claimant show that his impairments are so severe that he is “unable to do his previous work.”
Studaway, 815 F.2d at 1076, quoting 42 U.S.C. § 423(d)(2)(A).
Plaintiff contends that the ALJ failed to consider that her past relevant work as a
mental health aide was in a sheltered environment and that an employer in a competitive work setting
would not make these accommodations. The Court disagrees. Accommodated work is a factor to
consider in determining whether one can do past relevant work. See 20 C.F.R. § 404.1573(c) (“[i]f
your work is done under special conditions, we may find that it does not show that you have the
ability to do substantial gainful activity”).
Work done under special conditions is addressed in 20 C.F.R. § 404.1573(c),
which provides that even work done in a sheltered workshop may show a claimant
possesses “the necessary skills and ability to work at the substantial gainful activity
level.” If, however, a claimant’s impairments prevent him from doing “ordinary or
simple tasks satisfactorily without more supervision or assistance than is usually
given other people doing similar work,” it may be sufficient to show that the claimant
is not working at the substantial gainful activity level. 20 C.F.R. § 404.1573(b).
Boyes v. Secretary of Health & Human Services, 46 F.3d 510, 512 (6th Cir. 1994).
In addressing plaintiff’s claim, the ALJ considered the statement of her supervisor,
Claudia Wink-Basing, the executive director of InterAct of Michigan. PageID.156. Plaintiff was
employed as a peer specialist at InterAct. PageID.888. According to Ms. Wink-Basing, peer
specialist positions have some flexibility “to accommodate the cycles of peoples’ illnesses that
sometimes get in the way of their being able to perform all the duties that everyone else might
otherwise be asked to do.” Id. Thus, Interact provided an accommodation to plaintiff by changing
her work schedule on short notice and letting her work from home. PageID.889. When asked “[d]o
you accommodate other professionals or clerical staff by letting them work from home in that same
manner?” Ms. Wink-Basing answered, “No, that is really not an option.” Id.
The accommodation issue was raised at the administrative hearing, when plaintiff’s
counsel asked the VE whether, based on Ms. Wink-Basing’s statement, plaintiff’s past employment
was competitive or accommodated. PageID.201. The VE responded that plaintiff’s employment
was both competitive and accommodated, with the accommodation given to attendance and
punctuality. PageID.201-202. The VE also testified that, considering Ms. Wink-Basing’s statement,
“peer support personnel have that accommodation” at InterAct. PageID.202-203.
In evaluating the evidence regarding plaintiff’s RFC, the ALJ assigned little weight
to Ms. Wink-Basing’s opinion of plaintiff’s abilities to perform work-related activities:
I have read and considered the signed statement of Claudia Wink-Basing,
MSW (Exhibit B29F). Ms. Wink-Basing is the executive director of lnteract of
Michigan (Exhibit B29F/ 1). She supervised the claimant when the claimant was
hired as a peer specialist at Interact of Michigan (Exhibit B29F/1 ). This opinion is
given little weight, as it is a lay opinion based on casual observation rather than
objective medical evidence and testing.
However, the ALJ adopted the VE’s opinions which were based upon Ms. WinkBasing’s statements regarding plaintiff’s duties in her past relevant work as a peer specialist and the
accommodations provided to her by InterAct. The ALJ addressed plaintiff’s past relevant work as
Based on the claimant’s documented vocational background and the claimant’ s
testimony, the vocational expert indicated the claimant worked within the last fifteen
years as a mental health aide. A mental health aide is a light, semiskilled occupation
with an SVP of 4. The claimant performed this occupation at the sedentary
The claimant’s past relevant work of mental health aide was performed within
fifteen years of the date of this decision. The claimant’s former employer submitted
a document showing that the claimant performed this occupation in 2010 and 2011
Having been asked to assume a person with the same age, education, and
work experience as the claimant, and a residual functional capacity as stated in the
finding immediately prior to this one, the vocational expert testified that such an
individual would be able to perform this past relevant work as actually performed by
The testimony of the vocational expert is consistent with the Dictionary of
Occupational Titles, and I accept it. In comparing the claimant’s residual functional
capacity with the physical and mental demands of the claimant’s past relevant work,
I have determined the claimant is able to perform this past relevant work as actually
performed based on the testimony of the vocational expert.
The VE considered the issue of accommodation at the administrative hearing and
concluded that plaintiff could perform her past relevant work as actually performed at InterAct.
Based on this record, substantial evidence supports the ALJ’s determination that plaintiff could
perform her past relevant work. Accordingly, this claim of error is denied.
The ALJ’s determination is supported by substantial evidence. The Commissioner’s
decision will be AFFIRMED pursuant to 42 U.S.C. § 405(g). A judgment consistent with this
opinion will be issued forthwith.
Dated: March 25, 2016
/s/ Ray Kent
United States Magistrate Judge
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