Poland v. Commissioner of Social Security

Filing 12

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

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

LAURA L. POLAND,
Plaintiff,

Case No. 1:15-CV-399

v.
HON. RAY KENT
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 Laura Poland seeks review of the Commissioner’s decision denying her
claim for disability insurance benefits (DIB) under Title II of the Social Security Act.
STANDARD OF REVIEW
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 & 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 & 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 & Human Servs., 735 F.2d 962, 963 (6th Cir. 1984). 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 thirty-nine years of age on the date of the Administrative Law Judge’s
(ALJ) decision. (PageID.37, 87.) She completed high school, and was previously employed as a
bagger. (PageID.61, 79–80.) Plaintiff applied for benefits on December 22, 2011, alleging that she
had been disabled since March 31, 2010, due to a cognitive impairment, PTSD, borderline
personality disorder, acid reflux, depression, a flipped colon/stomach pains, and problems associated
with her right shoulder, wrist, and knee. (PageID.87, 159–165.) Plaintiff’s application was denied
on April 3, 2012, after which she requested a hearing before an ALJ. (PageID.104–108.) On June
13, 2013, Plaintiff appeared with her counsel before ALJ Janice Bruning for an administrative
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hearing with testimony offered by Plaintiff and a vocational expert (VE). (PageID.58–82.) In a
written decision dated September 18, 2013, the ALJ determined that Plaintiff was not disabled.
(PageID.37–57.) On February 20, 2015, the Appeals Council declined to review the ALJ’s decision,
making it the Commissioner’s final decision in the matter. (PageID.28–32.) Plaintiff subsequently
initiated this action under 42 U.S.C. § 405(g).
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).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). 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 (RFC).
See 20 C.F.R. § 404.1545.
Plaintiff has the burden of proving the existence and severity of limitations caused
by her impairments and that she is precluded from performing past relevant work through step four.

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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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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 Bruning determined Plaintiff’s claim failed at the fifth step of the evaluation.
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her
alleged disability onset date. (PageID.42.) At step two, the ALJ determined Plaintiff had the
following severe impairments: (1) right shoulder tear; (2) right knee tear with surgery and
osteoarthritis; (3) obesity; (4) learning disorder; (5) depression; and (6) anxiety. (PageID.42.) 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. (PageID.44–46.)
At the fourth step, the ALJ found that Plaintiff retained the RFC based on all the impairments:
to perform light work as defined in 20 CFR 404.1567(b) except the
claimant should never climb ladders, rope, or scaffolds, should only
occasionally climb ramps/stairs, balance, stoop, kneel, crouch, crawl,
bend or twist, could occasionally push/pull and reach overhead with
the right upper extremity and occasionally use the right lower
extremity to push/pull. Based on the claimant’s mental impairments,
she should be limited to 1-3 step simple, routine and repetitive tasks
involving no public contact and no more than occasionally interaction
with co-workers and supervisors. The claimant should not be
required to perform work involving “teamwork” in order to complete
job tasks and should not work in an environment requiring more than
occasional changes in work/duties and decision-making.
(PageID.46.) Continuing with the fourth step, the ALJ determined that Plaintiff was unable to
perform her past relevant work. (PageID.50.) At the fifth step, the ALJ questioned the VE to
determine whether a significant number of jobs exist in the economy that Plaintiff could perform
given her limitations. See Richardson, 735 F.2d at 964. The VE identified the following jobs as

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representative of work that Plaintiff could perform: packager (15,000 Michigan jobs and 534,000
national jobs), cleaner/ housekeeper (12,000 Michigan jobs and 524,000 national jobs), and conveyor
line bakery worker (16,000 Michigan jobs and 235,000 national jobs). (PageID.79–81.) Based on
this record, the ALJ found that Plaintiff was capable of making a successful adjustment to work that
exists in significant numbers in the national economy. (PageID.51.)
Accordingly, the ALJ concluded that Plaintiff was not disabled at any point from her
alleged onset date through the date of the decision. (PageID.51–52.)
DISCUSSION
Plaintiff’s sole claim of error is that the ALJ failed to afford sufficient weight to the
opinions from two of her treating physicians. The first opinion, dated July 9, 2012, is from
Plaintiff’s treating psychologist, Dr. Amy Borgman, PhD. (PageID.586–590.) Among other things,
Dr. Borgman opined that Plaintiff was seriously limited, but not precluded, in her ability to function
in the areas of remembering work-like procedures, understanding, remembering, and carrying out
very short and simple instructions, sustaining an ordinary routine without special supervision,
making simple work-related decisions, responding appropriately to changes in a routine work setting,
and being aware of normal hazards. (PageID.588.) Plaintiff was unable to perform activities such
as maintaining attention for two hour segments, maintaining regular attendance and punctuality,
working in coordination with or proximity to others without being distracted, completing a normal
workday and workweek without interruptions, performing at a consistent pace without an
unreasonable number and length of rest periods, accepting instructions and respond appropriately
to criticism from supervisors, and dealing with normal work stresses. (PageID.588.) Plaintiff
furthermore could not interact appropriately with the public, and was seriously limited but not
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precluded, in maintaining socially appropriate behavior and adhering to basic standards of neatness
and cleanliness, and could be expected to miss work more that four days per month.
(PageID.589–590.) On April 18, 2013, Dr. Borgman stated that the above opinion represented
Plaintiff’s then current limitations as well. (PageID.725.)
Plaintiff also relies on a May 30, 2013 medical source statement from Dr. Gretchen
Goltz regarding Plaintiff’s limitations due to her headaches. (PageID.742–745.) Dr. Goltz indicated
that she had been treating with Plaintiff for nine years, and that Plaintiff suffered both migraine and
vascular tension headaches roughly four times a month, lasting five to six hours. These headaches
were of such a severity that they prevented Plaintiff from performing all activities, and were
accompanied with nausea, phonophobia, photophobia, throbbing pain, an inability to concentrate,
mood changes, exhaustion, malaise, vertigo, visual disturbances, impaired sleep and appetite, and
pain made worse with activities (PageID.742.) Consequently, Dr. Goltz indicated that since
February 2011, Plaintiff was incapable of even “low stress” work. (PageID.744.) She stated
Plaintiff would be unable to stay at work when she had headaches, and Plaintiff could be expected
to miss work more than four times per month. (PageID.745.) She also noted that in a typical
workday, Plaintiff would be off task twenty-five percent or more of the workday. (PageID.744.)
The ALJ assigned “some” weight to Dr. Borgman’s opinion and “no weight” to Dr.
Goltz’s opinion. (PageID.49–50.) Plaintiff claims the ALJ erred in failing to give sufficient weight
to both opinions.
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,
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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, 710
F.3d at 375–76 (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 & Human Servs., 1991 WL 229979 at *2
(6th Cir., Nov. 7, 1991) (citing Shavers v. Sec’y of Health & 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.
See Cohen, 964 F.2d at 528; Miller, 1991 WL 229979 at *2 (citing Shavers, 839 F.2d at 235 n.1);
Cutlip v. Sec’y of Health & 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.” 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.
Gayheart, 710 F.3d at 376–77.

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A.

Dr. Borgman

As noted above, the ALJ gave Dr. Borgman’s opinion some weight. She noted she
accommodated Plaintiff’s mental restrictions by limiting Plaintiff to 1-3 step simple, routine and
repetitive tasks with no public contact and only occasional interaction with co-workers and
supervisors. The ALJ also found Plaintiff could not perform tasks involving teamwork to complete
job duties and could not work in an environment requiring more than occasional changes in
work/duties and decision-making. (PageID.50.) The ALJ noted however that:
Dr. Borgman’s other findings, which included that the claimant
would likely be absent from work more than four days per month, are
not supported by the record as there is no indication that the claimant
requires such frequent treatment or is unable to tend to her activities
of daily living on a regular basis as a result of her mental capacity.
Rather, the claimant lives alone in a house and is able to
independently care for her personal hygiene needs, prepare simple
meals, wash the dishes, do laundry, make her bed, dust, vacuum,
sweep, mop, sew, shop, drive, go to church on a regular basis, handle
funds, and care for pets. (Exhibits 5E, (E, and 9F).
(PageID.50.) The ALJ’s decision is entirely consistent with the above authority and supported by
substantial evidence. Importantly, Plaintiff does not disagree with anything contained in the above
excerpt. Rather she contends that the ALJ was required to give more weight to the opinion of Dr.
Borgman than the opinion of Dr. Dennis Mulder, a consultative examiner.2 (PageID.759–760.)
As an initial matter, Plaintiff appears to mistakenly believe that Dr. Mulder was also
the agency consultant who authored the Commissioner’s Disability Determination Explanation
(DDE). (PageID.759–60.) A review of the DDE demonstrates, however, that Dr. Judy Strait was
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On March 22, 2011, Dr. Mulder opined that Plaintiff had a “fair” potential for “becoming gainfully employed
in a simple, unskilled work situation on a sustained and competitive basis . . . pending her compliance with psychiatric
treatment. The patient appeared to have no difficulty understanding, remembering, or following through with simple
instructions, and there appears to be few restrictions to her ability to perform simple, repetitive, concrete tasks.”
(PageID.580–581.)

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the agency consultant to whom the ALJ assigned some weight. (PageID.49, 87–101.)

While the

ALJ did not assign a specific weight to Dr. Mulder’s opinion, the ALJ appears to have adopted it,
noting that she agreed with the doctor’s assessment of Plaintiff’s abilities. (PageID.49.) With that
in mind, the Court finds that Plaintiff has raised a claim that the ALJ was required to give more
weight to the opinion of Dr. Borgman, than to the opinion of Dr. Dennis Mulder.3
Plaintiff correctly states that Dr. Borgman has treated Plaintiff on several occasions
and qualifies as her treating physician. This fact would justify a decision to give more weight to the
doctor’s opinion than to others in the record. See 20 C.F.R. § 404.1527(c)(2)(i) (“Generally, the
longer a treating source has treated you and the more times you have been seen by a treating source,
the more weight we will give to the source’s medical opinion.”). As discussed above, however, the
ALJ found Dr. Borgman’s opinion was inconsistent with other substantial evidence in the record –
namely Plaintiff’s daily activities. As such, the ALJ was not required to give controlling weight to
the opinion. See 20 C.F.R. § 404.1527(c)(2). Instead, when there is contradictory evidence, it is the
ALJ’s role to weigh the conflicting medical opinions. See Buxton v. Halter, 246 F.3d 762, 775 (6th
Cir. 2001); see also Reynolds v. Comm’r of Soc. Sec., 424 F. App’x 411, 414 (6th Cir. 2011) (“This
court reviews the entire administrative record, but does not reconsider facts, re-weigh the evidence,
resolve conflicts in evidence, decide questions of credibility, or substitute its judgment for that of
the ALJ.”). The ALJ does so using the factors found at 20 C.F.R. § 404.1527(c).
An examining relationship is only one of the factors an ALJ is to consider when
weighing medical opinions. See 20 C.F.R. § 404.1527(c); see also McClean v. Colvin, No.
3:11–cv–236, 2013 WL 4507807, at *8 (M.D. Tenn. Aug. 23, 2013) (“[R]espective examining and

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The Court concludes Plaintiff has not raised a cognizable claim against the agency consultant.

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non-examining status [is] only one of several relevant factors [.]”). Consistency is another important
factor: “Generally, the more consistent an opinion is with the record as a whole, the more weight we
will give to that opinion.” 20 C.F.R. § 404.1527(c)(4). The ALJ acknowledged the limited
examining relationship that Dr. Mulder had, but nevertheless found it to be consistent with Plaintiff’s
activities of daily living and treatment notes in the record, while Dr. Borgman’s opinion was not
consistent. Accordingly it was not in error for the ALJ to give more weight to Dr. Mulder’s opinion
than to Dr. Borgman’s opinion.
B.

Dr. Goltz

At step two, the ALJ found that Plaintiff’s headaches did not amount to a severe
impairment. In her discussion the ALJ noted Plaintiff’s treatment with Dr. Goltz, and also discussed
and the doctor’s subsequent opinion:
The claimant complained of “periodic” migraine headaches in May
2009 and February 2010 (Exhibit 7F, pg.16) and not again until
September 2010 (Exhibit 7F, p. 101), at which time she reported that
they occur intermittently and that she was improving (Id.). The
claimant’s primary care physician, Dr. Gretchen Goltz, opined that
the claimant’s headaches were likely from muscle tension in her neck
and simply recommended neck stretches and range of motion
exercises as well as Tylenol or Motrin as needed. During a visit on
February 24, 2011, the claimant remarked that her migraine problem
had not changed (Exhibit 7F, p.162). Accordingly, the undersigned
finds that the evidence does not show that the claimant’s headaches
have resulted in more than minimal work-related limitations.
While the undersigned notes that the claimant’s primary care
physician rendered an opinion as to the effect of the claimant’s
headaches in Exhibit 22F, the undersigned accords it no weight for
the following reasons. The claimant’s primary doctor reported that
her headaches occur four times a month and prevent the claimant
from all activities. Per this report, the claimant’s primary doctor
indicated that this has been going on for nine years. However, the
claimant engaged in substantial gainful activity through March 2010
and only stopped then due to knee problems, not headaches. She also
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performs various activities of daily living on a regular basis as she
lives alone in a house, including caring for pets and doing different
chores (Exhibits 5E, 6E, and 9E).
(PageID.43.)

The Commissioner acknowledges that the ALJ was mistaken in stating that Dr.

Goltz’s opinion concerned Plaintiff’s condition for the prior nine years. A correct reading of the
opinion shows that Dr. Goltz stated Plaintiff’s limitations first applied on February 24, 2011, well
after Plaintiff had ceased substantial gainful activity. (PageID.745.) The Commissioner argues,
however, that the decision may be upheld on the remaining reasons articulated by the ALJ. The
Court agrees. See Kelly v. Astrue, No. 3:08-CV-271, 2009 WL 2591761, at *8 (S.D. Ohio Aug. 20,
2009) (finding an ALJ’s error did not require reversal when an ALJ provided other reasons,
supported by substantial evidence).
The ALJ found the doctor’s opinion to be inconsistent with Plaintiff’s daily activities.
As Plaintiff stated in her function report, she lives alone in a house. (PageID.212.) She takes care
of a pet and has no problems handling her personal care. She is able to prepare meals, and Plaintiff
has had no changes in her cooking habits since the beginning of her impairments. (PageID.214,
221.) Plaintiff can clean and do laundry, and does not need encouragement in doing those activities.
(PageID.214.) She goes out two to three times a week, goes shopping, and can drive a car.
(PageID.215, 223.) Her hobbies include watching TV and crochet, and there have been no changes
since the onset of her impairments. (PageID.216.) She spends time with others every day, and goes
to church. (PageID.249.) When asked how her illnesses, injuries, or conditions limited her ability
to work, Plaintiff did not cite any issues due to migraines. (PageID.245.) The Court finds the ALJ
reasonably found these activities to be inconsistent with the limitations the doctor provided.

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Plaintiff does not quibble with any of the above, but claims it was in error for the ALJ
to note Plaintiff’s conservative treatment for her migraines. According to Plaintiff, “the
Commissioner failed to realize that the only course of treatment for migraines is of a conservative
nature,” and that “the only course of treatment [was] to take the prescribed medications and rest for
the period of time needed, which in the Clamant’s case consists of lying down in a quiet darkened
room for 5-6 hours to alleviate the pain.” (PageID.759.) Plaintiff provides no support for this
assertion. The record shows that the ALJ accurately described Plaintiff’s treatment history for her
migraines. She went long periods without complaining of migraines, and Dr. Goltz did prescribe
neck stretches and range of motion exercises in addition to medication. (PageID.451.) On February
24, 2011, Dr. Goltz noted that Plaintiff’s migraines were less frequent than she later opined – noting
they occurred only every couple of months during which Plaintiff missed one day of work.
(PageID.510.) When a CT scan of Plaintiff’s head found a chronic injury, Plaintiff declined a
referral to a neurologist. (PageID.603.)

While Plaintiff might disagree with what constitutes

conservative treatment, this does not mean the ALJ erred in finding the record inconsistent with the
doctor’s opinions.
Accordingly, for all the above reasons, Plaintiff’s claim of error is denied
CONCLUSION
For the reasons articulated herein, the Commissioner’s decision will be AFFIRMED.
A separate judgment shall issue.

Dated: September 7, 2016

/s/ Ray Kent
RAY KENT
United States Magistrate Judge

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