Snyder v. Commissioner of Social Security

Filing 14

OPINION; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

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

MICHAEL JAMES SNYDER,

)
)
Plaintiff,
)
)
v.
)
)
COMMISSIONER OF
)
SOCIAL SECURITY,
)
)
Defendant.
)
____________________________________)

Case No. 1:15-cv-137
Honorable Janet T. Neff

OPINION
This is a social security action brought under 42 U.S.C. ' 1383(c)(3) seeking
judicial review of a final decision of the Commissioner of Social Security denying
plaintiff=s claim for supplemental security income (SSI) benefits.

On February 13,

2014, plaintiff filed his application for SSI benefits. (PageID.177-85). He alleged a
February 1, 2014, onset of disability.
on initial review.

(PageID.101-16).

(PageID.177).

Plaintiff=s claim was denied

On October 28, 2014, plaintiff received a

hearing before an ALJ, at which he was represented by counsel.

(PageID.59-99).

On November 10, 2014, the ALJ issued her decision finding that plaintiff was not
disabled.

(PageID.43-53).

On January 16, 2015, the Appeals Council denied

review (PageID.28-30), and the ALJ=s decision became the Commissioner=s final
decision.

Plaintiff filed a complaint seeking judicial review of the Commissioner=s
decision. He asks the court to overturn the Commissioner=s decision on the following
grounds:
I

The ALJ=s decision was not based on substantial evidence because she
failed to give proper weight to the findings and opinion of plaintiff=s
treating psychiatrists.
A.

B.

II.

The ALJ=s opinion did not address factors under 20 C.F.R. '
416.927(c), (d), such as the length of treatment, frequency of
examination, and the nature and extent of the treatment
relationship.
The ALJ=s findings that plaintiff did not meet the requirements
of listings 12.04 and 12.06 are not supported by substantial
evidence

The ALJ=s factual finding regarding plaintiff=s residual functional
capacity (RFC) is not supported by substantial evidence.
A.

The ALJ failed to follow 20 C.F.R. ' 416.913(d) and SSR 96-03p
in the weight she gave to the opinions of plaintiff=s treating nurse
practitioner and mental health therapist.

B.

The ALJ failed to consider all plaintiff=s impairments and their
impact on his ability to perform substantial gainful activity as
required by 20 C.F.R. ' 416.945(c) and SSR 98-6p and 85-15p.

(Plf. Brief at iii, ECF No. 11, PageID.1035).

Upon review of the record, and for the

reasons stated herein, the Commissioner=s decision will be affirmed.
Standard of Review
When reviewing the grant or denial of social security benefits, this Court is to
determine whether the Commissioner=s findings are supported by substantial
evidence and whether the Commissioner correctly applied the law. See Elam ex rel.
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Golay v. Commissioner, 348 F.3d 124, 125 (6th Cir. 2003); Buxton v. Halter, 246 F.3d
762, 772 (6th Cir. 2001). Substantial evidence is defined as A>such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.=@

Heston

v. Commissioner, 245 F.3d 528, 534 (6th Cir. 2001) (quoting Richardson v. Perales,
402 U.S. 389, 401 (1971)); see Rogers v. Commissioner, 486 F.3d 234, 241 (6th Cir.
2007).

The scope of the Court=s review is limited. Buxton, 246 F.3d at 772.

The

Court does not review the evidence de novo, resolve conflicts in evidence, or make
credibility determinations. See Ulman v. Commissioner, 693 F.3d 709, 713 (6th Cir.
2012); Walters v. Commissioner, 127 F.3d 525, 528 (6th Cir. 1997). AThe findings of
the [Commissioner] as to any fact if supported by substantial evidence shall be
conclusive . . . .@ 42 U.S.C. ' 405(g); see McClanahan v. Commissioner, 474 F.3d 830,
833 (6th Cir. 2006). AThe findings of the Commissioner are not subject to reversal
merely because there exists in the record substantial evidence to support a different
conclusion.

. . .

This is so because there is a >zone of choice= within which the

Commissioner can act without fear of court interference.@ Buxton, 246 F.3d at 77273.

AIf supported by substantial evidence, the [Commissioner=s] determination must

stand regardless of whether the reviewing court would resolve the issues of fact in
dispute differently.@

Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir. 1993); see

Gayheart v. Commissioner, 710 F.3d 365, 374 (6th Cir. 2013) (AA reviewing court will
affirm the Commissioner=s decision if it is based on substantial evidence, even if
substantial evidence would have supported the opposite conclusion.@).
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A[T]he

Commissioner=s decision cannot be overturned if substantial evidence, or even a
preponderance of the evidence supports the claimant=s position, so long as substantial
evidence also supports the conclusion reached by the ALJ.@ Jones v. Commissioner,
336 F.3d 469, 477 (6th Cir. 2003); see Kyle v. Commissioner, 609 F.3d 847, 854 (6th
Cir. 2010).
Discussion
The ALJ found that plaintiff had not engaged in substantial gainful activity on
or after February 13, 2014, the date of his application for SSI benefits. (Op. at 3,
PageID.45).

Plaintiff had the following severe impairments:

Adegenerative disc

disease of the spine with a small disc protrusion at the L3-4 level and mild to
moderate neural foramen stenosis at L5-S1 (Exhibit 10F); pancreatitis (Exhibits 19F20F); and a major depressive disorder with psychotic features; attention-deficithyperactivity disorder (ADHD); post-traumatic stress disorder; and a substance
addiction disorder (Exhibit 11F).@1

(Id.). The ALJ found that plaintiff did not have

1 Plaintiff has a significant history of alcohol, prescription medication, marijuana,

and other substance abuse. Since 1996, the Social Security Act, as amended, has
precluded awards of SSI and DIB benefits based upon alcoholism and drug
addiction. See 42 U.S.C. §§ 423(d)(2)(C), 1382c(a)(3)(J); 20 C.F.R. §§ 404.1535,
416.935; see also Bartley v. Barnhart, 117 F. App’x 993, 998 (6th Cir. 2004); Hopkins
v. Commissioner, 96 F. App'x 393, 395 (6th Cir. 2004). The claimant bears the
burden of demonstrating that drug and alcohol addiction is not a contributing factor
to his disability. See Cage v. Commissioner, 692 F.3d 118, 122-25 (2d Cir. 2012);
see also Zarlengo v. Barnhart, 96 F. App’x 987, 989–90 (6th Cir. 2004). Because
plaintiff was found not to be disabled, the ALJ was not required to decide the issue
of whether substance abuse was material to a finding of disability. See Gayheart v.
Commissioner, 710 F.3d 380, 365 (6th Cir. 2013).
-4-

an impairment or combination of impairments that met or equaled the requirements
of the listing of impairments. (Id. at 4, PageID.46).

The ALJ found that plaintiff

retained the residual functional capacity (RFC) for a limited range of light work:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform a range of light work
as defined in 20 CFR 416.967(b) of the Regulations. Claimant is able to lift
and carry a maximum of twenty pounds occasionally and a maximum of ten
pounds frequently. He can stand or walk for six hours, and sit for six hours
in an eight-hour workday. He can perform postural functions occasionally
(climbing stairs/ramps, crawling, stooping, kneeling, balancing and crouching).
He cannot use ladders, ropes, or scaffolds; use hazardous machinery; or work
at unprotected heights. He can perform simple, routine tasks involving no
more than simple, short instructions and simple work-related decisions with
few workplace changes. The claimant can have no contact with the general
public and only occasional contact with coworkers and supervisors.
(Op. at 6, PageID.48).

The ALJ found that plaintiff=s testimony regarding his

subjective complaints was not fully credible.
Plaintiff has no past relevant work.

(Id. at 6-9, PageID.48-51).
(Id. at 9, PageID.51). Plaintiff was 51

years old on the date he filed his application for SSI benefits. He was classified as
an individual closely approaching advanced age at all times relevant to his claim.
(Id.).

Plaintiff has a high school education.

(Id.). The transferability of job skills

was not an issue because plaintiff did not have past relevant work.
then turned to the testimony of a vocational expert (VE).

(Id.). The ALJ

In response to a

hypothetical question regarding a person of plaintiff=s age, and with his RFC,
education, and work experience, the VE testified that there were approximately
18,900 jobs in Michigan that the hypothetical person would be capable of performing.
(PageID.95-96).

The ALJ found that this constituted a significant number of jobs.
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Using Rule 202.13 of the Medical-Vocational Guidelines as a framework, the ALJ
held that plaintiff was not disabled.

(Op. at 10-11, PageID.52-53).
1.

Plaintiff argues that the ALJ should have given controlling weight to the
opinions of Kameswara Tatineni, M.D., and Goal Bedi, M.D. (Plf. Brief at 10-15,
PageID.1046-1051; Reply Brief at 2, PageID.1080).

The issue of whether the

claimant is disabled within the meaning of the Social Security Act is reserved to the
Commissioner.

20 C.F.R. ' 416.927(d)(1); see Warner v. Commissioner, 375 F.3d 387,

390 (6th Cir. 2004). A treating physician=s opinion that a patient is disabled is not
entitled to any special significance.

See 20 C.F.R. '' 416.927(d)(1), (3); Bass v.

McMahon, 499 F.3d 506, 511 (6th Cir. 2007); Sims v. Commissioner, 406 F. App=x
977, 980 n.1 (6th Cir. 2011) (A[T]he determination of disability [is] the prerogative of
the Commissioner, not the treating physician.@).

Likewise, Ano special significance@2

is attached to treating physician opinions regarding the credibility of the plaintiff=s
subjective complaints, RFC, or whether the plaintiff=s impairments meet or equal the
requirements of a listed impairment because they are administrative issues reserved

AWe will not give any special significance to the source of an opinion on issues
reserved to the Commissioner described in paragraphs (d)(1) and (d)(2) of this
section.@ 20 C.F.R. ' 416.927(d)(3); see Blankenship v. Commissioner, 624 F. App=x
419, 429-30 (6th Cir. 2015).
2

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to the Commissioner. 20 C.F.R. '' 416.927(d)(2), (3); see Allen v. Commissioner, 561
F.3d 646, 652 (6th Cir. 2009).
Generally, the medical opinions of treating physicians are given substantial, if
not controlling, deference. See Johnson v. Commissioner, 652 F.3d 646, 651 (6th Cir.
2011).

A[T]he opinion of a treating physician does not receive controlling weight

merely by virtue of the fact that it is from a treating physician.

Rather, it is accorded

controlling weight where it is >well supported by medically acceptable clinical and
laboratory diagnostic techniques' and is not >inconsistent . . . with the other
substantial evidence in the case record.=@ Massey v. Commissioner, 409 F. App=x 917,
921 (6th Cir. 2011) (quoting Blakley v. Commissioner, 581 F.3d 399, 406 (6th Cir.
2009)).

A treating physician=s opinion is not entitled to controlling weight where it

is not Awell-supported by medically acceptable clinical and laboratory diagnostic
techniques@ and is Ainconsistent with the other substantial evidence in [the] case
record.@ 20 C.F.R. ' 416.927(c)(2); see Gayheart v. Commissioner, 710 F.3d 365, 376
(6th Cir. 2013) (A treating physician=s medical opinion is entitled to controlling
weight where Atwo conditions are met:

(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.=@
(citing 20 C.F.R. ' 416.927(c)(2)).
The ALJ Ais not bound by conclusory statements of doctors, particularly where
they are unsupported by detailed objective criteria and documentation.@ Buxton v.

-7-

Halter, 246 F.3d at 773.

An opinion that is based on the claimant=s reporting of his

symptoms is not entitled to controlling weight. See Young v. Secretary of Health &
Human Servs., 925 F.2d 146, 151 (6th Cir. 1990); see also Francis v. Commissioner,
414 F. App=x 802, 804 (6th Cir. 2011) (A physician=s statement that merely
regurgitates a claimant=s self-described symptoms Ais not a medical opinion at all.@).
Even when a treating source=s medical opinion is not given controlling weight,
the opinion should not necessarily be completely rejected; the weight to be given to
the opinion is determined by a set of factors, including treatment relationship,
supportability, consistency, specialization, and other factors.

See Titles II and XVI:

Giving Controlling Weight to Treating Source Medical Opinions, SSR 96-2p
(reprinted at 1996 WL 374188 (SSA July 2, 1996)); 20 C.F.R. ' 416.927(c); Martin v.
Commissioner, 170 F. App=x 369, 372 (6th Cir. 2006).
The Sixth Circuit has held that claimants are Aentitled to receive good reasons
for the weight accorded their treating sources independent of their substantive right
to receive disability benefits.@ Smith v. Commissioner, 482 F.3d 873, 875-76 (6th
Cir. 2007); see Cole v. Astrue, 661 F.3d 931, 937-38 (6th Cir. 2011); Wilson v.
Commissioner, 378 F.3d 541, 544 (6th Cir. 2004).

A[T]he procedural requirement

exists, in part, for claimants to understand why the administrative bureaucracy
deems them not disabled when physicians are telling them that they are.@ Smith,
482 F.3d at 876; see Gayheart v. Commissioner, 710 F.3d at 376.

-8-

Plaintiff filed his application for SSI benefits on February 13, 2014.3

On the

date he filed his application for SSI benefits, plaintiff was a resident of “long term
substance abuse residential housing.”

(PageID.211).

He was in the residential

alcohol treatment program at New Beginnings from September 2013, until July 2014.
(PageID.63, 70).

On about July 8, 2014, with assistance from his social worker,

Raquel DeAnda-Ring, plaintiff was able to obtain a housing voucher.

He lived

independently in his own apartment from July 2014, through the date of his
administrative hearing. (PageID.70, 77, 92-93).
On February 5, 2014, plaintiff’s social worker, Ms. DeAnda-Ring generated
a document that she labeled as a medical summary (PageID.737-44) and completed a
mental RFC questionnaire (PageID.745-50). She had plaintiff’s former psychiatrist,
Dr. Tatineni, sign both documents.4 (PageID.745-50).

3 Plaintiff was in jail for an extended period before he filed his application for SSI

benefits. (PageID.357, 361, 366, 521, 527, 536, 538, 542, 552-53, 559, 561, 570,
573, 581-82, 623, 630-31, 656). Plaintiff is not eligible to receive SSI benefits for
any months he was confined in a jail or prison. See 42 U.S.C. § 1382(e)(1)(A); 20
C.F.R. § 416.1325.
Plaintiff submitted evidence generated before he filed his application for SSI
benefits. Such evidence is minimally probative and is considered only to the extent
that it illuminates plaintiff’s condition during the 9-month period at issue which ran
from the date plaintiff filed his application for SSI benefits through November 10,
2014, the date of the ALJ’s decision. See Higgs v. Bowen, 880 F.2d 860, 863 (6th
Cir. 1988); see also Van Winkle v. Commissioner, 29 F. App’x 353, 358 (6th Cir.
2002); Edwards v. Commissioner, No. 1:14-cv-101, 2015 WL 5691192, at * 6 (W.D.
Mich. Sept. 28, 2015).
4 “Dr. Tatineni left KCMH in August 2013.” (Plf. Brief at 10, PageID.1046). Dr.
Tatineni did not have any treatment relationship with plaintiff during the period at
issue. On March 23, 2012, Dr. Tatineni offered a diagnosis of bipolar mood

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On February 18, 2014, plaintiff saw John Cegielski, M.D.

Plaintiff reported

that he was frustrated and wanted to get back on Norco for chronic back pain.

Dr.

Cegielski noted that plaintiff had been precluded from receiving narcotics because
two years earlier he had refused to take a urine test.

Plaintiff’s MRI showed

arthritic changes and a mild disc bulge. He was alert and in no acute distress.
motor examination was normal.

His

Plaintiff was provided with a contact for appealing

his no controlled substances status. Dr. Cegielski gave plaintiff a prescriptions for
Ultram and Cymbalta and encouraged him to engage in low impact exercise to help
lower his blood pressure.

(PageID.966-69).

On February 20, 2014, Nurse Overmyer noted that plaintiff arrived on time for
his appointment and was in a very pleasant mood.

She noted that plaintiff did a lot

of research on the Internet and made many of his decisions regarding medications
based on that research.

He wanted to stop taking Geodon.

discontinued that prescription and initiated a trial of Latuda.

Ms. Overmyer

Plaintiff reported that

disorder, mixed, and ADHD. Plaintiff was experiencing significant legal problems.
(PageID.460-62). On May 25, 2012, Dr. Tatineni had offered a diagnosis of bipolar
mood disorder, generalized anxiety disorder, and a history of ADHD. Plaintiff did
not have any acute medical problems. (PageID.457-59). On August 9, 2013, Dr.
Tatineni indicated that plaintiff’s medications were effective and did not note any
undesirable side effects. Plaintiff had fluctuating moods and thoughts and
depression and anger, but they were lessening while he was taking his medications
regularly. His diagnosis of ADHD and bipolar mood disorder, mixed, remained
unchanged. He noted plaintiff’s “past history of major depression and suicidal
ideations.” He gave plaintiff a GAF score of 60. He recommended that plaintiff
“avoid using any non prescribed medications or any substances of alcohol and
continue to be monitored.” (PageID.820-24).
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he had started exercising more and felt a big improvement.
score of 51.

She gave plaintiff a GAF

Plaintiff’s attention and concentration were appropriate. His thought

processes were logical and coherent.

(PageID.411-15).

On April 1, 2014, plaintiff returned to Dr. Cegielski.

He indicated that his

low back and neck pain was tolerable with Ultram and Meloxicam.
he had stopped taking Cymbalta because it made no difference.

He related that

(PageID.964-66)

On April 15, 2014, plaintiff indicated that his medication was effective and that
he was not experiencing any side effects.
good. (Id.).

(PageID.781).

His behavior and motor activity were normal.

appropriate

and

unremarkable.

His

insight

and

His sleep pattern was
His thought content was
judgment

were

good.

(PageID.782).
On April 26, 2014, Thuy Nguyn performed a consultative examination.
Plaintiff stated that he had back pain and neck pain since a car accident in the 1980s.
Plaintiff did not require any assistive device.

He did not have any clubbing,

cyanosis, or edema. His gait and station were normal.
range of motion and strength.

Plaintiff retained a good

Dr. Nguyn found that plaintiff could lift and carry up

to 50 pounds and walk about 2 miles.

(PageID.756-60).

On May 23, 2014, Dr. Cegielski recorded plaintiff’s complaint that lower back
pain kept him from being active and that he had problems sleeping.

Plaintiff

reported that Hydrocodone worked the best, but Dr. Cegielski reiterated that plaintiff
was not eligible to receive prescriptions for narcotics.
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Plaintiff stated that he had

spoken with the office manager and that individual indicated that it was up to Dr.
Cegielski whether plaintiff received narcotics.
and person and his speech was normal.

Plaintiff was oriented to time, place,
His motor examination revealed no

dysfunction.

Plaintiff had no muscle spasms, but lumbosacral spine movements

elicited pain.

Dr. Cegielski engaged in a long discussion with plaintiff regarding use

and abuse of narcotics and somewhat reluctantly initiated a trial of Norco to help
reduce plaintiff’s pain.

(PageID.961-64).

On May 14, 2014, plaintiff indicated to Nurse Overmyer that he “never” used
alcohol or other substances.

(PageID.775).

Plaintiff described variable moods.

He stated that he continued to go to InterAct and was enjoying it.

A month earlier,

Nurse Overmyer had provided plaintiff with the sun salutation yoga booklet and
plaintiff reported that he had been doing yoga exercises every day.
up to participate in the yoga class at InterAct.
15, 2014.

(PageID.776).

sexual innuendos.

He had signed

His first class was scheduled for May

Plaintiff was described as flirtatious and he was making

His thought processes were coherent.

concentration were intact.

(PageID.776).

His attention and

On June 11, 2014, Nurse Overmyer

indicated that plaintiff’s mood was much more in the normal range rather than being
on the high side.

He was jovial and upbeat.

and unremarkable.

His thought content was appropriate

His insight and judgment were appropriate.

(PageID.770-74).

On July 14, 2014, plaintiff returned to Kalamazoo Community Mental Health
and Substance Abuse Services and was seen by Nurse Overmyer.
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Plaintiff related

that he had always been close to his grandmother and she was dying. He reported
that he had experienced some recent anxiety related to glitches in his getting a new
apartment.

Plaintiff’s appearance was neat and clean.

to go to the beach in his summer clothes and sandals.
and friendly.

He looked like he was ready
His attitude was cooperative

His attention and concentration were intact. His mood was in the

normal range and stable.

His thought processes were logical and coherent.

His

insight and judgment were “good for the most part.” Nurse Overmyer gave plaintiff
a GAF score of 54. (PageID.764-69).
On August 11, 2014, Nurse Overmyer noted that plaintiff was “neat, clean and
appropriately dressed.”
contact.

His attitude was friendly and cooperative with good eye

His behavior and psychomotor activity were normal.

Plaintiff reported

that he had “good” attention and concentration, but he was interested in trying a
different medication for ADHD.
medication.

Nurse Overmyer supported this change in

Plaintiff’s communication and speech normal were normal, but he did

appear “a little bit distractible[.]”

He reported that his mood was “4 or 5/10 with 10

being the best, mostly having to do with his grandmother.”
congruent.

His thought content was appropriate.

coherent and organized.

His affect is mood

His thought process was

His insight and judgment were rated from fair to good.

Nurse Overmyer discontinued plaintiff’s Adderall prescription and began a trial of
Vyvanese.
load.

She considered this a positive change in terms of plaintiff’s stimulant

(PageID.933-38).
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On August 12, 2014, Nurse Practitioner Overmyer provided plaintiff’s attorney
with a statement regarding plaintiff (PageID.928-29) and she signed a “Mental
Residual Functional Capacity Form.”

(PageID.930-32).

Nurse

Overmyer’s

statement and her RFC questionnaire are also signed by Gopal Bedi, M.D.
(PageID.929, 932), but there is no evidence in this administrative record of any
treatment provided by Dr. Bedi.
In August 2014, plaintiff’s social worker at InterAct of Michigan, Ms. DeAndaRing, indicated that plaintiff had moved into his own apartment on July 8, 2014. His
leisure activities included attending and participating in sports or performing arts,
reading newspapers, magazines and books, playing recreational games with others,
being involved in arts and crafts and going to the movies.

Plaintiff reported that he

struggled with PTSD related to his father’s abuse of his mother and his guilt and
remorse for his drunk driving which had killed a woman in 1987. He stated that he
frequently contemplated suicide.

(PageID.940-57).

On August 28, 2014, plaintiff saw Edward Haughn, D.O.

Plaintiff received a

Norco prescription, but was required to sign a controlled substances contract.
(PageID.960-61).
On September 14, 2014, plaintiff was discharged from Bronson Hospital.
(PageID.987).

The one page of the discharge summary is all the Bronson Hospital

documentation that plaintiff provided stemming from this hospitalization.

The

fragment of the discharge summary provided indicates that plaintiff appeared at the
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hospital emergency room with complaints of abdominal pain.

He reported that he

had been an “inpatient at the Gilmore Center for about 10 months before being
discharged 6-8 weeks ago to his own apartment.

He started drinking during that

time.

He reports drinking 1-2 pints of vodka daily.

(Id.).

Plaintiff was diagnosed with “alcoholic pancreatitis.” He was impulsive and

had evidence of ETOH withdrawal.

Last drank Friday evening.”

He was not interested in inpatient ETOH

rehabilitation because he had just obtained his housing voucher.

His long term

prognosis was “guarded due to alcohol addiction.” (PageID.987).
On September 17, 2014, plaintiff returned to Dr. Haughn. Plaintiff received
extensive counseling regarding his alcohol abuse.

Dr. Haughn noted plaintiff’s long

history of alcohol dependence. Plaintiff had achieved a period of alcohol abstinence
for about 7 months, but then relapsed for 10 days of heavy drinking. Four days later,
he went to the emergency room with severe abdominal pain. It was determined that
plaintiff had active pancreatitis and liver dysfunction and he was hospitalized for
almost a week.

(PageID.958-59, 987).

On September 22, 2014, plaintiff was hospitalized after making a suicidal
attempt in which he draped a belt over a pipe and had balanced on a table top until
a neighbor talked him down off the table.

Plaintiff stated that he did not drink

alcohol for a year, but relapsed when his grandmother died on August 25, 2014.

In

addition, plaintiff denied ever using marijuana or other street drugs and denied ever
abusing prescription drugs.

(PageID.987-1013).
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On October 14, 2014, Ms. DeAnda-Ring and Nurse Overmyer generated a
revised version of their February 5, 2014, medical summary.

(PageID.1015-27).

On October 28, 2014, the ALJ conducted plaintiff’s administrative hearing.
She heard testimony from three witnesses:
vocational expert.
benefits.

plaintiff, Ms. DeAnda-Ring, and the

Plaintiff’s social worker testified in support of his claim for SSI

She indicated that she worked at InterAct of Michigan in Kalamazoo.

(PageID.85).

Her initial professional contact with plaintiff was in 2010.

Closer to

the period at issue, she saw plaintiff once a week in a group therapy setting and she
met with plaintiff on case management issues such as housing.

She indicated that

her job involved connecting plaintiff to resources and that she helped plaintiff
complete a “slew of paperwork” to get his apartment. (PageID.86, 92). She testified
that plaintiff had been kicked out of the InterAct program in 2013 because he had
been drinking.

(PageID.87). Plaintiff had managed to get himself banned from a

local library where he spent his time using the library’s Internet connection.
Plaintiff was permitted to return to the InterAct program in about August 2013.
(PageID.87-88).

Plaintiff’s social worker indicated that plaintiff’s ability to go to the

library and do research on the Internet did not undermine her belief that plaintiff
struggles with concentration.
work.

She offered her opinion that plaintiff was unable to

(PageID. 90-91).
It was against this backdrop that the ALJ considered the various opinions

regarding plaintiff’s RFC that had been submitted for her consideration. The ALJ
- 16 -

found that the RFC restrictions suggested by plaintiff’s social worker5 were entitled
to little weight.

(See Op. at 9, PageID.51).

In addition, the ALJ found that the RFC

restrictions suggested by Nurse Practitioner Overmyer and Dr. Bedi were entitled to
little weight.

(See Op. at 9, PageID.51).

The Court finds no violation of the treating physician rule.

The opinions on

which plaintiff relies were not the opinions of treating psychiatrists or physicians.
Nurse Overmyer is a nurse practitioner and Ms. Deanda-Ring is a social worker.
The treating physician rule did not apply to their opinions.
practitioners are not “acceptable medical source[s].”

Social workers and nurse

See 20 C.F.R. § 416.913(a); see

also Bliss v. Commissioner, 406 F. App’x 541 (2d Cir. 2011); Turner v. Astrue, 390 F.
App’x 581, 586 (7th Cir. 2010); Pastorino v. Commissioner, No. 15-10918, 2016 WL
787132, at *1 (E.D. Mich. Feb. 29, 2016); Thompson v. Commissioner, No. 1:14-cv464, 2015 WL 5665142, at * 15 (W.D. Mich. Sept. 24, 2014); Drain v. Commissioner,
No. 14-cv-12036, 2015 WL 4603038, at *4 (E.D. Mich. July 30, 2015); Harper v.
Commissioner, No. 1:13-cv-1014, 2015 WL 869207, at *3 (W.D. Mich. Feb. 27, 2015).
Only “acceptable medical sources” can: (1) provide evidence establishing the
existence of a medically determinable impairment; (2) provide a medical opinion; and

5 The ALJ noted that after plaintiff was released from jail, plaintiff had obtained a
housing voucher, with Ms. DeAnda-Ring’s assistance, and that plaintiff had been
living on his own at an apartment since July 2014. (Op. at 8, PageID.50).
Plaintiff’s economic needs, including his need for shelter, were important factors for
his social worker, but they were not factors that the ALJ could consider in
determining whether plaintiff was disabled. (Id.).
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(3) be considered a treating source whose medical opinion could be entitled to
controlling weight under the treating physician rule. See Titles II and XVI:
Considering Opinions and Other Evidence from Sources Who are not ‘Acceptable
Medical Sources' in Disability Claims; Considering Decisions on Disability by Other
Governmental and Nongovernmental Agencies, SSR 06-3p (reprinted at 2006 WL
2329939, at * 2 (SSA Aug. 9, 2006)). The opinions of a nurse practitioner and a social
worker fall within the category of information provided by “other sources.” Id. at *2;
see 20 C.F.R. § 416.913(d). The social security regulations require that information
from other sources be “considered.” 2006 WL 2329939, at *1, 4 (citing 20 C.F.R. §§
416.912, .927).

This is not a demanding standard, and it was easily met here.

Dr. Tatineni and Dr. Bedi are acceptable medical sources, but they were not
treating psychiatrists at any time during the period at issue: February 13, 2014,
through November 10, 2014.

Social security regulations define a “treating source”

as a physician or other acceptable medical source who has had an ongoing treatment
relationship with the claimant.

20 C.F.R. § 416.902; see Coldiron v. Commissioner,

391 F. App’x 435, 442 (6th Cir. 2010).

Whether a psychiatrist or physician is a

“treating source” is determined as of the date the opinions at issue are supplied. See
Karger v. Commissioner, 414 F. App’x 739, 744 (6th Cir. 2011); Kornecky v.
Commissioner, 167 F. App’x 496, 506 (6th Cir. 2006). Here, Dr. Tatineni did not
have any ongoing treatment relationship on the date he signed the documents that
plaintiff emphasizes.

Although Dr. Tatineni “signed Exhibit 11F, he had stopped
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treating the claimant in approximately August 2013 (Exhibit 8F).”
PageID.51).

(Op. at 9,

The addition of Dr. Tatineni’s signatures when he had no treating

source relationship with plaintiff did not transform the opinions in Exhibit 11
(PageID.727-50) into the opinions of a treating physician.
There is no record of any treatment provided by Dr. Bedi.

Again, adding

Bedi’s signature to Nurse Overmeyer statements “did not transform those opinions
into the opinions of a treating physician.” See Fletcher v. Astrue, No. 1:11-cv-1100,
2013 WL 4500334, at * 9 (W.D. Mich. Aug. 21, 2013).

Plaintiff did not present

evidence establishing a treating physician relationship with Dr. Bedi. See Kornecky
v. Commissioner, 167 F. App’x at 506-07. Because Dr. Bedi and Dr. Tatineni were
not treating physicians during the period at issue, the ALJ was not “under any special
obligation to defer to [their] opinion[s] or to explain why [s]he elected not to defer to
[them].” Karger v. Commissioner, 414 F. App’x at 744.
2.
Plaintiff argues that the ALJ committed error when she found that plaintiff’s
impairments did not meet the requirements of listings 12.04 and 12.06 because she
did not adequately take the restrictions suggested by Doctors Bedi and Tatineni into
account. (Plf. Brief at 16-17, PageID.1052-53; Reply Brief at 2-3, PageID.1080-81).
The issues of disability, RFC, and whether a claimant meets or equals the
requirements of a listed impairment are issues reserved to the Commissioner. See
20 C.F.R. ' 416.927(d); see Allen v. Commissioner, 561 F.3d at 652. Even in the case
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of a treating physician or psychiatrist, if a treating source Asubmits an opinion on an
issue reserved to the Commissioner B such as whether the claimant is disabled, or
unable to work, the claimant=s RFC, or the application of vocational factors B his
decision need only >explain the consideration given to the treating sources opinion.=
The opinion, however, >is not entitled to any particular weight.= @

Curler v.

Commissioner, 561 F. App=x 464, 471 (6th Cir. 2014) (quoting Johnson v.
Commissioner, 535 F. App=x 498, 505 (6th Cir. 2013) and Turner v. Commissioner,
381 F. App=x 488, 493 (6th Cir. 2010)).
It is well established that a claimant must show that he satisfies all the
individual requirements of a listing. See Elam ex rel. Golay v. Commissioner, 348
F.3d 124, 125 (6th Cir. 2003); Hale v. Secretary of Health & Human Servs., 816 F.2d
1078, 1083 (6th Cir. 1987).

“If all the requirements of the listing are not present,

the claimant does not satisfy that listing.”

Berry v. Commissioner, 34 F. App’x 202,

203 (6th Cir. 2002). “It is insufficient that a claimant comes close to satisfying the
requirements of a listed impairment.” Elam, 348 F.3d at 125.
“Listing 12 addresses nine specific mental disorders and begins with a set of
introductory instructions.” Randall v. Astrue, 570 F.3d 651, 658 (5th Cir. 2009). The
listing’s introductory instructions “are no less mandatory” than the individual
listings.

Id.; see 20 C.F.R. § 416.925(c)(2).

The introduction states, “Each listing,

except 12.05 and 12.09, consists of a statement describing the disorder(s) addressed
by the listing, paragraph A criteria (a set of medical findings), and paragraph B

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criteria (a set of impairment-related functional limitations). There are additional
functional criteria (paragraph C criteria) in listings 12.02, 12.03, 12.04, and 12.06.”
Listings 12.04 and 12.06 contain identical paragraph B criteria. The claimant has
the burden of demonstrating at least two of the following: marked restriction of
activities of daily living; marked difficulties in maintaining social functioning;
marked difficulties in maintaining concentration, persistence, or pace; or repeated
episodes of decompensation, each of extended duration.

A “marked” limitation is a

degree of limitation that is more than moderate, but less than extreme. 20 C.F.R.
Pt. 404, Subpt. P, App. 1 § 12.00(C); see Sullenger v. Commissioner, 255 F. App’x 988,
993–94 (6th Cir. 2007); Pascoe v. Commissioner, 137 F. App’x 828, 844 n.18 (6th Cir.
2005).

The ALJ found that plaintiff did not meet the Part B severity requirements

of listings 12.04 and 12.06 because he had “mild” restrictions in his activities of daily
living, “marked” difficulties in maintaining social functioning, “moderate” difficulties
of concentration, persistence or pace, and “no episodes of decompensation, which have
been of extended duration.”

The ALJ cited evidence supporting each of her findings.

(Op. at 4-6, PageID.46-48).
Plaintiff's burden on appeal is much higher than identifying pieces of evidence
on which the ALJ could have made a factual finding in his favor. The Commissioner’s
decision cannot be overturned if substantial evidence, or even a preponderance of the
evidence supports the claimant’s position, so long as substantial evidence also
supports the conclusion reached by the ALJ. Jones v. Commissioner, 336 F.3d 469,

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477 (6th Cir. 2003). The ALJ’s findings that plaintiff did not meet the requirements
of listings 12.04 and 12.06 are supported by substantial evidence.
3.
Plaintiff argues that the ALJ violated 20 C.F.R. § 416.913(d) and SSR 06-03p
because the ALJ did not adequately address the factor of length of time that plaintiff
had been seeing Nurse Practitioner Overmyer and Ms. DeAnda-Ring.
18-19, PageID.1054-55).

(Plf. Brief at

Plaintiff’s argument that the ALJ failed to give adequate

consideration to the opinion of these “other sources” under 20 C.F.R. § 416.913(d) is
rejected for the reasons stated in section 1.
Plaintiff generally invokes SSR 06-3p, but does not address any particular
provision of that social security ruling. SSR 06-3p clarifies how the Social Security
Administration “consider[s] opinions from sources who are not ‘acceptable medical
sources.’ ” Titles II and XVI: Considering Opinions and Other Evidence from Sources
Who are not ‘Acceptable Medical Sources' in Disability Claims; Considering Decisions
on Disability by Other Governmental and Nongovernmental Agencies, SSR 06–3p
(reprinted at 2006 WL 2329939, at * 1 (SSA Aug. 9, 2006)). The ruling states that an
ALJ should consider factors like those applicable to acceptable medical source
opinions when reviewing other source opinions.

SSR 06-3p is phrased in permissive

rather than mandatory terms. SSR 06-3p uses the permissive term “should” in
connection with the ALJ’s explanation of the “consideration” given to “other source”
opinions:

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Since there is a requirement to consider all relevant evidence in an individual’s
case record, the case record should reflect the consideration of the opinions
from medical sources who are not “acceptable medical sources” and from “nonmedical sources” who have seen the claimant in their professional capacity.
Although there is a distinction between what an adjudicator must consider and
what the adjudicator must explain in the disability determination or decision,
the adjudicator should generally explain the weight given to the opinions from
these “other sources,” or otherwise ensure that the discussion of the evidence
in the determination or decision allows a claimant or subsequent reviewer to
follow the adjudicator's reasoning, when such opinions may have an effect on
the outcome of the case.
2006 WL 2329939, at * 6.
The ALJ considered the factors listed in 20 C.F.R. §416.927(c).
PageID.49).

(Op. at 7,

The ALJ determined that the although plaintiff has a lengthy

psychiatric history, the level of restriction suggested by Ms. DeAnda-Ring and Nurse
Practitioner Overmyer were not well supported for the period at issue and were not
consistent with the record as a whole.

(Op. at 9, PageID.51). Further, the ALJ was

not required to conduct a factor-by-factor analysis in reviewing a treating physician’s
opinion, see Garcia v. Commissioner, No. 1:13-cv-501, 2015 WL 869191, at * 8 (W.D.
Mich. Feb. 27, 2015), she certainly was not required to do so in addressing an “other
source” opinions. See Curl v. Commissioner, No. 1:13-cv-700, 2015 WL 6394173, at
* 5 (W.D. Mich. Oct. 22, 2015); Belasco v. Commissioner, No. 1:14-cv-1778, 2015 WL
4094707, at * 10 (N.D. Ohio July 7, 2015).
4.
The remaining section of plaintiff’s brief is labeled as a challenge to the ALJ’s
RFC finding because she “failed to adequately consider all Plaintiff’s limitations.”

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(Plf. Brief at 19, PageID.1055).

The “example” cited was plaintiff’s testimony that

“his sleep [was] interrupted and his medications cause[d] daytime drowsiness.
naps or nods off several times a day.”6

He

(Id.).

Credibility determinations concerning a claimant=s subjective complaints are
peculiarly within the province of the ALJ.

See Gooch v. Secretary of Health &

Human Servs., 833 F.2d 589, 592 (6th Cir. 1987).
credibility determinations.

The Court does not make its own

See Walters v. Commissioner, 127 F.3d at 528.

The

Court=s Areview of a decision of the Commissioner of Social Security, made through
an administrative law judge, is extremely circumscribed . . . .@
Commissioner, 124 F. App=x 943, 945 (6th Cir. 2005).

Kuhn v.

The Commissioner=s

determination regarding the credibility of a claimant=s subjective complaints is
reviewed under the Asubstantial evidence@ standard.

This is a Ahighly deferential

standard of review.@ Ulman v. Commissioner, 693 F.3d 709, 714 (6th Cir.

2012).

AClaimants challenging the ALJ=s credibility determination face an uphill battle.@

6 The other arguments listed in this section of plaintiff’s brief (Plf. Brief at 19-20) are
not adequately developed and are deemed waived. Passing statements which fail to
cite any supporting legal authority do not suffice. “ ‘Issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation, are
deemed waived. It is not sufficient for a party to mention a possible argument in the
most skeletal way, leaving the court to ... put flesh on its bones.’ ” United States v.
Stewart, 628 F.3d 246, 256 (6th Cir. 2010) (quoting McPherson v. Kelsey, 125 F.3d
989, 995–96 (6th Cir. 1997)); see United States v. Elder, 90 F.3d 1110, 1118 (6th Cir.
1996); accord Curler v. Commissioner, 561 F. App’x 464, 475 (6th Cir. 2014)
(“[Plaintiff develops no argument to support a remand, and thus the request is
waived.”).
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Daniels v. Commissioner, 152 F. App=x 485, 488 (6th Cir. 2005); see Ritchie v.
Commissioner, 540 F. App=x 508, 511 (6th Cir. 2013) (AWe have held that an
administrative law judge=s credibility findings are >virtually unchallengeable.=@).
AUpon review, [the Court must] accord to the ALJ=s determinations of credibility great
weight and deference particularly since the ALJ has the opportunity, which [the
Court] d[oes] not, of observing a witness=s demeanor while testifying.@ Jones, 336
F.3d at 476.

AThe ALJ=s findings as to a claimant=s credibility are entitled to

deference, because of the ALJ=s unique opportunity to observe the claimant and judge
h[is] subjective complaints.@

Buxton v. Halter, 246 F.3d at 773; accord White v.

Commissioner, 572 F.3d 272, 287 (6th Cir. 2009); Casey v. Secretary of Health &
Human Servs., 987 F.2d 1230, 1234 (6th Cir. 1993).
The ALJ found that plaintiff’s testimony claiming that he suffered from
extreme drowsiness and needed to take naps was not credible.
PageID.49-50).

(See Op. at 7-8,

The Court finds that the ALJ gave an adequate explanation of her

credibility finding and that her finding regarding plaintiff’s credibility is supported
by more than substantial evidence.
Conclusion
For the reasons set forth herein, the decision of the Commissioner will be
affirmed.
Dated: March 14, 2016

/s/ Janet T. Neff
Janet T. Neff
United States District Judge
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