Black v. Commissioner of Social Security

Filing 13

OPINION affirming the Commissioner's decision; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, jal)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TAMMY BLACK,
Plaintiff,

Hon. Ellen S. Carmody

v.

Case No. 1:15-CV-438

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
______________________________________/
OPINION
This is an action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C.
§ 405(g), to review a final decision of the Commissioner of Social Security denying Plaintiff’s claim
for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) under Titles II and
XVI of the Social Security Act. On July 8, 2015, the parties agreed to proceed in this Court for all
further proceedings, including an order of final judgment. (ECF No. 9).
Section 405(g) limits the Court to a review of the administrative record and provides
that if the Commissioner’s decision is supported by substantial evidence it shall be conclusive. The
Commissioner has found that Plaintiff is not disabled within the meaning of the Act. For the reasons
stated below, the Court concludes that the Commissioner’s decision is supported by substantial
evidence. Accordingly, the Commissioner’s decision is affirmed.

STANDARD OF REVIEW
The Court’s jurisdiction is confined to a review of the Commissioner’s decision and
of the record made in the administrative hearing process. See Willbanks v. Sec’y of Health and
Human Services, 847 F.2d 301, 303 (6th Cir. 1988). The scope of judicial review in a social security
case is limited to determining whether the Commissioner applied the proper legal standards in
making her decision and whether there exists in the record substantial evidence supporting that
decision. See Brainard v. Sec’y of Health and Human Services, 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 Dep’t of Health and Human Services, 964 F.2d 524, 528 (6th
Cir. 1992) (citations omitted). It is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Bogle v.
Sullivan, 998 F.2d 342, 347 (6th Cir. 1993). In determining the substantiality of the evidence, the
Court must consider the evidence on the record as a whole and take into account whatever in the
record fairly detracts from its weight. See Richardson v. Sec’y of Health and Human Services, 735
F.2d 962, 963 (6th Cir. 1984).
As has been widely recognized, the substantial evidence standard presupposes the
existence of a zone within which the decision maker can properly rule either way, without judicial
interference. See Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (citation omitted). This

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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 41 years of age on her alleged disability onset date. (PageID.328). She
successfully completed high school and worked previously as a home health aide nurse assistant.
(PageID.178-79). Plaintiff applied for benefits on August 8, 2012, alleging that she had been
disabled since July 9, 2011, due to diabetes, anxiety with panic attacks, depression with suicidal
ideation, neuropathy, sciatica, arthritis of the knees, high cholesterol, heart problems, poor memory
and concentration, and trouble standing, bending, and sitting. (PageID.328-44, 362). Plaintiff’s
applications were denied, after which time she requested a hearing before an Administrative Law
Judge (ALJ). (PageID.236-326). On August 14, 2013, Plaintiff appeared before ALJ Edward
Studzinski with testimony being offered by Plaintiff and a vocational expert. (PageID.185-231).
In a written decision dated December 23, 2013, the ALJ determined that Plaintiff was not disabled.
(PageID.168-80). The Appeals Council declined to review the ALJ’s determination, rendering it
the Commissioner’s final decision in the matter. (PageID.19-24). Plaintiff subsequently initiated
this pursuant to 42 U.S.C. § 405(g), seeking judicial review of the ALJ’s decision.
Plaintiff’s insured status expired on December 31, 2012.

(PageID.170).

Accordingly, to be eligible for Disability Insurance Benefits under Title II of the Social Security
Act, Plaintiff must establish that she became disabled prior to the expiration of her insured status.
See 42 U.S.C. § 423; Moon v. Sullivan, 923 F.2d 1175, 1182 (6th Cir. 1990).

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ANALYSIS OF THE ALJ’S DECISION
The social security regulations articulate a five-step sequential process for evaluating
disability. See 20 C.F.R. §§ 404.1520(a-f), 416.920(a-f).1 If the Commissioner can make a
dispositive finding at any point in the review, no further finding is required. See 20 C.F.R. §§
404.1520(a), 416.920(a).

The regulations also provide that if a claimant suffers from a

nonexertional impairment as well as an exertional impairment, both are considered in determining
her residual functional capacity. See 20 C.F.R. §§ 404.1545, 416.945.
The burden of establishing the right to benefits rests squarely on Plaintiff’s shoulders,
and she can satisfy her burden by demonstrating that her impairments are so severe that she is unable
to perform her previous work, and cannot, considering her age, education, and work experience,
perform any other substantial gainful employment existing in significant numbers in the national
economy. See 42 U.S.C. § 423(d)(2)(A); Cohen, 964 F.2d at 528. While the burden of proof shifts
to the Commissioner at step five of the sequential evaluation process, Plaintiff bears the burden of
proof through step four of the procedure, the point at which her residual functioning capacity (RFC)
is determined. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Walters v. Comm’r of Soc. Sec.,

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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), 416.920(b));
2. An individual who does not have a “severe impairment” will not be found “disabled” (20 C.F.R. §§ 404.1520(c),
416.920(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), 416.920(d));
4. If an individual is capable of performing her past relevant work, a finding of “not disabled” must be made (20 C.F.R.
§§ 404.1520(e), 416.920(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), 416.920(f)).

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127 F.3d 525, 528 (6th Cir. 1997) (ALJ determines RFC at step four, at which point claimant bears
the burden of proof).
The ALJ determined that Plaintiff suffers from: (1) obesity; (2) left shoulder
tendinopathy; (3) internal derangement of the left knee; and (4) depression, severe impairments that
whether considered alone or in combination with other impairments, failed to satisfy the
requirements of any impairment identified in the Listing of Impairments detailed in 20 C.F.R., Part
404, Subpart P, Appendix 1. (PageID.170-73).
With respect to Plaintiff’s residual functional capacity, the ALJ found that Plaintiff
retained the ability to perform sedentary work subject to the following limitations: (1) she cannot
stand/walk for longer than 15 minutes at any one time; (2) she can occasionally climb ramps/stairs,
but can never climb ladders, ropes, or scaffolds; (3) she can occasionally balance, stoop, kneel,
crouch, and crawl; (4) she cannot use her left upper extremity to reach in any direction fully
extended for more than 75 percent of her full range of motion; (5) she can only occasionally reach
overhead with her left upper extremity, while not bearing more than minimal weight; (6) she must
avoid concentrated exposure to extreme cold, extreme wetness, and excessive vibration; (7) she can
never drive or operate moving machinery; (8) she cannot work at unprotected heights, around
exposed flames, or around unguarded large bodies of water; (9) she must avoid concentrated
exposure to unguarded hazardous machinery; (10) she is limited to simple, routine, and repetitive
tasks that require only simple judgment and simple decision making; (11) she is limited to work with
only minor or occasional changes in the work setting; (12) she cannot work in a direct public service
capacity, but can tolerate brief and superficial interaction with the general public which is incidental
to her primary job duties; and (13) she is limited to brief and superficial interaction with supervisors

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and co-workers. (PageID.173). The ALJ further concluded that Plaintiff requires a sit/stand option
as follows: (1) after sitting for 60 minutes, she must be allowed to stand/walk for up to 5 minutes
before sitting for another 60 minutes; and (2) after standing/walking for 15 minutes she must be
allowed to sit for 5 minutes before standing/walking for another 15 minutes, but must not be offtask. (PageID.173).
The ALJ found that Plaintiff cannot perform her past relevant work at which point
the burden of proof shifted to the Commissioner to establish by substantial evidence that a
significant number of jobs exist in the national economy which Plaintiff could perform, her
limitations notwithstanding. See Richardson, 735 F.2d at 964. While the ALJ is not required to
question a vocational expert on this issue, “a finding supported by substantial evidence that a
claimant has the vocational qualifications to perform specific jobs” is needed to meet the burden.
O’Banner v. Sec’y of Health and Human Services, 587 F.2d 321, 323 (6th Cir. 1978) (emphasis
added). This standard requires more than mere intuition or conjecture by the ALJ that the claimant
can perform specific jobs in the national economy. See Richardson, 735 F.2d at 964. Accordingly,
ALJs routinely question vocational experts in an attempt to determine whether there exist a
significant number of jobs which a particular claimant can perform, his limitations notwithstanding.
Such was the case here, as the ALJ questioned a vocational expert.
The vocational expert testified that there existed approximately 3,200 jobs in the
“Michiana” area and approximately 505,000 jobs nationwide, which an individual with Plaintiff’s
RFC could perform, such limitations notwithstanding. (PageID.220-27). This represents a
significant number of jobs. See Born v. Sec’y of Health and Human Services, 923 F.2d 1168, 1174
(6th Cir. 1990); Hall v. Bowen, 837 F.2d 272, 274 (6th Cir. 1988); Martin v. Commissioner of Social

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Security, 170 Fed. Appx. 369, 374 (6th Cir., Mar. 1, 2006). The ALJ concluded, therefore, that
Plaintiff was not entitled to disability benefits.

I.

The ALJ Properly Assessed Dr. MacCart’s Opinion
Plaintiff’s treating physician, Dr. John MacCart, opined that Plaintiff was impaired

to an extent far greater than recognized by the ALJ. The ALJ, however, afforded “little weight” to
Dr. MacCart’s opinions. Plaintiff argues that she is entitled to relief because the ALJ failed to
articulate good reasons for discounting her treating physician’s 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,
therefore, give controlling weight to the opinion of a treating source if: (1) the opinion is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques” and (2) the opinion
“is not inconsistent with the other substantial evidence in the case record.”

Gayheart v.

Commissioner of Social Security, 710 F.3d 365, 375-76 (6th Cir. 2013) (quoting 20 C.F.R. §
404.1527).
Such deference is appropriate, however, only where the particular opinion “is based
upon sufficient medical data.” Miller v. Sec’y of Health and Human Services, 1991 WL 229979 at
*2 (6th Cir., Nov. 7, 1991) (citing Shavers v. Sec’y of Health and Human Services, 839 F.2d 232,
235 n.1 (6th Cir. 1987)). 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 v. Sec’y of Health and Human Services, 1991

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WL 229979 at *2 (6th Cir., Nov. 7, 1991) (citing Shavers v. Sec’y of Health and Human Services,
839 F.2d 232, 235 n.1 (6th Cir. 1987)); Cutlip v. Sec’y of Health and Human Services, 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.
Commissioner of Social Security, 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.
On April 16, 2013, Dr. MacCart reported that during an 8-hour workday Plaintiff can
(1) sit for 15 minutes at one time and “about 4 hours” total and (2) stand/walk for 15 minutes at one
time and “about 2 hours” total. (PageID.483). The doctor reported that Plaintiff also required a sitstand option. (PageID.483). The doctor reported that Plaintiff can: (1) occasionally lift less than
10 pounds; (2) rarely lift 10 pounds, and (3) never lift 20 pounds. (PageID.484). The doctor also
reported that “on average,” Plaintiff would, as a result of her impairments, be absent from work
“about two days per month.” (PageID.485). In a report completed September 11, 2013, Dr.
MacCart offered similar opinions regarding Plaintiff’s ability to function. (PageID.552-55).

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The ALJ discounted Dr. MacCart’s opinions as inconsistent with the medical record.
Specifically, the ALJ noted that:
Dr. MacCart’s treatment records show that [Plaintiff’s] knee and
shoulder both improved with medication and therapy. She also
received little follow-up. There is no support at all for the conclusion
that she would miss two days of work per month. There are at times
months between appointments. [Dr. MacCart] is also not [Plaintiff’s]
treating orthopedist, but rather a family physician.
(PageID.177).
As detailed above, the ALJ articulated a rather restrictive RFC to account for
Plaintiff’s various impairments. As the ALJ observed, Dr. MacCart’s treatment notes do not support
the opinion that Plaintiff is more restricted than reflected in his RFC. (PageID.443-70, 486-510).
For example, the doctor reported that Plaintiff exhibited “full range of motion” in her left knee with
only “mild pain.” (PageID.452). Subsequent x-rays of Plaintiff’s left shoulder revealed “minimal
abnormalities.” (PageID.495). Treatment notes indicate that Plaintiff’s pain is relieved with
medication. (PageID.506). Treatment notes from Plaintiff’s other care providers likewise support
the ALJ’s RFC assessment. (PageID.471-76, 515-51). For example, a psychological examination
revealed that Plaintiff could perform work consistent with her RFC. (PageID.471-76). Treatment
notes by Dr. Daniel Sohn indicate that while Plaintiff experiences “limited shoulder range of
motion,” she has only “mild” rotator cuff tendinosis and “good” grip strength and muscular function.
(PageID.515). X-rays of Plaintiff’s knee likewise do not support the argument that Plaintiff is more
limited than reflected by the ALJ’s RFC assessment. (PageID.513). In sum, the ALJ’s decision to
afford “little weight” to Dr. MacCart’s opinions is supported by substantial evidence.

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II.

The ALJ’s RFC is Supported by Substantial Evidence
Plaintiff next argues that because the ALJ’s RFC assessment does not mirror the

opinion or findings of any medical expert such is legally deficient. Plaintiff has identified no
authority to support this position. While Plaintiff has cited to two Sixth Circuit decisions, neither
supports Plaintiff’s argument.
In Hensley v. Astrue, 573 F.3d 263 (6th Cir. 2009), the Sixth Circuit held that an ALJ
could not reject a treating physician’s opinion based solely on the finding that “another physician
had reached the opposite conclusion.” Id. at 266. In Cole v Astrue, 661 F.3d 931 (6th Cir. 2011),
the Sixth Circuit held that where an ALJ discounted a treating physician’s opinion based upon an
inaccurate assessment of the claimant’s reported activities, such violated the Treating Physician
Rule. Id. at 939. These decisions merely reiterate the uncontroversial rule that the ALJ’s decision
to discount the opinion of a treating physician must be supported by substantial evidence. Neither
decision, however, supports Plaintiff’s argument that the ALJ’s RFC determination must be
consistent with the opinions or findings of any medical examiner or care provider.
Moreover, as Defendant correctly notes, the Sixth Circuit has rejected Plaintiff’s
argument. See, e.g., Rudd v. Commissioner of Social Security, 531 Fed. Appx. 719, 728 (6th Cir.,
Sept. 5, 2013) (“the Commissioner has final responsibility for determining an individual’s RFC. .
.and to require the ALJ to base her RFC finding on a physician’s opinion ‘would, in effect, confer
upon the treating source the authority to make the determination or decision about whether an
individual is under a disability, and thus would be an abdication of the Commissioner’s statutory
responsibility to determine whether an individual is disabled”) (quoting Social Security Regulation
96-5p). Accordingly, this argument is rejected.

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CONCLUSION
For the reasons articulated herein, the Court concludes that the ALJ’s decision is
supported by substantial evidence. Accordingly, the Commissioner’s decision is affirmed. The
Court further determines that appeal of this matter would not be taken in good faith. See Smith v.
Commissioner of Social Security, 1999 WL 1336109 at *2 (6th Cir., Dec. 20, 1999); Leal v.
Commissioner of Social Security, 2015 WL 731311 at *2 (N.D. Ohio, Feb. 19, 2015); 28 U.S.C. §
1915(a)(3). A judgment consistent with this opinion will enter.

Date: May 24, 2016

/s/ Ellen S. Carmody
ELLEN S. CARMODY
United States Magistrate Judge

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