Samons v. Commissioner of Social Security

Filing 17

OPINION affirming the ALJ's decision and determining that an appeal of this matter would not be taken in good faith; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, rmw)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DEBORAH K. SAMONS,
Plaintiff,

Case No. 1:15-CV-1166

v.
HON. JANET T. NEFF
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 by the Commissioner of the Social Security Administration
(Commissioner). Plaintiff Deborah Samons seeks review of the Commissioner’s decision denying
her claim for disability insurance benefits (DIB) and supplemental security income (SSI) under
Titles II and XVI of the Social Security Act.
STANDARD OF REVIEW
The 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 forty-eight years of age on the date of the Administrative Law Judge’s
(ALJ) decision. (PageID.46, 98, 108.) She completed high school, attended one year of college, and
was previously employed as a health care aide. (PageID.90–91.) Plaintiff applied for benefits on
November 28, 2012, alleging that she had been disabled since September 1, 2011, due to hip
degeneration, disc disease, neck and back problems, fibromyalgia, and high blood pressure.
(PageID.98, 108, 185–192.) Plaintiff’s applications were denied on April 30, 2013, after which time
she requested a hearing before an ALJ. (PageID.122–142.) On March 20, 2014, Plaintiff appeared
with her counsel before ALJ Richard Gartner for an administrative hearing with testimony being

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offered by Plaintiff and a vocational expert (VE). (PageID.65–96.) That same day, Plaintiff
amended her alleged onset date to June 1, 2012. (PageID.205.) In a written decision dated May 22,
2014, the ALJ determined that Plaintiff was not disabled. (PageID.46–60.) On September 9, 2015,
the Appeals Council declined to review the ALJ’s decision, making it the Commissioner’s final
decision in the matter. (PageID.34–38.) 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), 416.920(a-f).1 If the Commissioner can make a
dispositive finding at any point in the review, no further finding is required. See 20 C.F.R. §§
404.1520(a), 416.920(a).

The regulations also provide that if a claimant suffers from a

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

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1.

An individual who is working and engaging in substantial gainful activity will not be found to be
“disabled” regardless of medical findings (20 C.F.R. §§ 404.1520(b), 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 work he or she has done in the past, 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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by her impairments and that she is precluded from performing past relevant work through step four.
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). At step five, it is the
Commissioner’s burden “to identify a significant number of jobs in the economy that accommodate
the claimant’s residual functional capacity (determined at step four) and vocational profile.” Id.
ALJ Gartner determined that 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.51.) At step two, the ALJ determined Plaintiff had the
following severe impairments: (1) degenerative disease of the lumbosacral spine; (2) degenerative
disease of the cervical spine; (3) asthma; and (4) hypertension. (PageID.51–52.) 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.52.) At the fourth step, the ALJ
determined Plaintiff retained the RFC based on all the impairments:
to perform a limited range of sedentary work as defined in 20 CFR
404.1567(a) and 416.967(a) with no climbing of ropes, ladders, or
scaffolds; with no more than occasional balancing, stooping,
kneeling, crouching, crawling, or climbing of ramps or stairs; with no
more than occasional use of the upper or lower extremities for
overhead reaching, or pushing/pulling, including the operation of
hand levers or foot pedals; and with no exposure to dangerous
machinery or unprotected heights.
(PageID.52.) Continuing with the fourth step, the ALJ determined that Plaintiff was unable to
perform any of her past relevant work. (PageID.54.) 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 testified that Plaintiff could
perform other work as a general office clerk (142,000 jobs), information clerk (88,000 jobs), and
sorter / packer (87,000 jobs). (PageID.91–92.) Based on this record, the ALJ found that Plaintiff
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was capable of making a successful adjustment to work that exists in significant numbers in the
national economy. (PageID.55.)
Accordingly, the ALJ concluded that Plaintiff was not disabled from her alleged onset
date through May 22, 2014, the date of decision. (PageID.55–56.)
DISCUSSION
1.

The ALJ’s Evaluation of the Opinion Evidence.

On February 6, 2013, Dr. Horace Davis, D.O., completed a two page RFC
questionnaire regarding Plaintiff’s impairments. (PageID.276–277.) Among other things, Dr. Davis
noted that Plaintiff’s impairments were of such as severity that they would constantly interfere with
her attention and concentration. Plaintiff would need to recline or lie down during the workday in
excess of time allotted for typical breaks. Plaintiff could not sit, stand, or walk each for even one
hour total in a workday. (PageID.276.) Plaintiff could only occasionally lift and carry ten pounds,
and would be expected to miss work more than four times a month. Ultimately, Dr. Davis indicated
that Plaintiff was not physically capable of working a full time job on a sustained basis.
(PageID.277.) On March 17, 2014, Dr. Davis filled out an identical worksheet providing identical
limitations. (PageID.334–335.) The ALJ found that Dr. Davis’s opinions were not “entitled to any
weight:”
The limitations imposed by Dr. Davis are inconsistent with the
overall evidence of record, including the visit reports of Dr. Davis,
himself. In each of his statements, this doctor expresses his opinion
that the claimant is not able to sit, or stand/walk, for any period of
time during an eight hour day (Exhibits 1F, 6F). However, on the
same date as the latter statement, Dr. Davis saw the claimant and
noted that she had a normal gait and station (Exhibit 7F); and he said,
in his opinion statement, the totally inconsistent opinion that she
could walk for up to four blocks without having to rest, could
stand/walk for ten minutes at a time, and could sit for fifteen minutes
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at a time (Exhibit 6F). Clearly, there is no basis to suggest the
claimant is limited to a greater extent than the residual functional
capacity found by the undersigned.
(PageID.54.) Plaintiff claims the ALJ’s discussion is fatally flawed. The Court disagrees.
The treating physician doctrine recognizes that medical professionals who have a
long history of caring for a claimant and her maladies generally possess significant insight into her
medical condition. See Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994). An ALJ must,
therefore, give controlling weight to the opinion of a treating source if: (1) the opinion is
“well-supported by medically acceptable clinical and laboratory diagnostic techniques” and (2) the
opinion “is not inconsistent with the other substantial evidence in the case record.” Gayheart v.
Comm’r of Soc. Sec., 710 F.3d 365, 375–76 (6th Cir. 2013) (quoting 20 C.F.R. § 404.1527). It is
undisputed that Dr. Davis qualifies as a treating physician.
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 it 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

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the reasons for that weight.” Id. This requirement “ensures that the ALJ applies the treating
physician rule and permits meaningful review of the ALJ’s application of the rule.” Id. (quoting
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004)). Simply stating that the
physician’s opinions “are not well-supported by any objective findings and are inconsistent with
other credible evidence” is, without more, too “ambiguous” to permit meaningful review of the
ALJ’s assessment. Id. at 376–77.
Plaintiff argues the ALJ erred in failing to assign controlling weight to the opinion
of Dr. Davis, first noting that there was no opinion evidence that contradicted Dr. Davis’ opinion.
(PageID.379.) But opinion evidence in contradiction to a treating physician’s opinion is not what
is required in the treating physician doctrine, and is a misreading of the authority set forth above.
Indeed, the ALJ found that the opinion was contradicted-by Dr. Davis’ own treatment records. As
the ALJ noted, a March 17, 2014, treatment note from Dr. Davis found that Plaintiff had a smooth
gait and upright posture. (PageID.339.) The ALJ reasonably found such to be inconsistent with the
doctor’s opinion that Plaintiff would be unable to stand or walk for even one hour total during the
workday. Plaintiff argues that the note also found decreased range of motion and tenderness on the
lumbar spine. (PageID.339.) True enough, but such does nothing to resolve the inconsistency
between the doctor’s opinion and his notation that Plaintiff had a smooth gait. Moreover, the ALJ
found the opinion itself to be internally inconsistent between its finding that Plaintiff could not
stand, sit, or walk for even an hour in the workday, but she was able to walk two to four blocks
without rest, sit for fifteen minutes at any one time, and stand or walk for ten minutes.
(PageID.276.) Together, these provide good reasons, supported by substantial evidence, for
assigning less than controlling weight to the opinion.

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Plaintiff also argues the ALJ failed to evaluate the factors for weighing medical
opinions found at 20 CFR §§ 404.1527(c), 416.927(c). (PageID.379.) Plaintiff is correct that even
when a treating source’s medical opinion is not given controlling weight, it should not necessarily
be completely rejected. Rather 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
SSR 96–2p, 1996 WL 374188 at *4; see also Martin v. Comm’r of Soc. Sec., 170 F. App’x 369, 372
(6th Cir. 2006). While the ALJ is not required to explicitly discuss each of these factors, the record
must nevertheless reflect that the ALJ considered those factors relevant to his assessment. See, e.g.,
Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007); Undheim v. Barnhart, 214 F. App’x 448,
450 (5th Cir. 2007). The ALJ gave sufficient consideration here. In addition to noting his obligation
to consider the factors (PageID.54), the record shows the ALJ considered the fact that Dr. Davis was
Plaintiff’s family physician. He also discussed scans ordered by the doctor which revealed a disc
protrusion at C5-6, and degenerative disc disease in the lumbosacral spine. (PageID.52.) The ALJ
reasonably found, however, that other factors, including consistency and supportability, did not
support the doctor’s opinion.
Even if the ALJ somehow erred here, any error would be harmless. Both of Dr.
Davis’s opinions are short, two page worksheets that consist of short fill-in-the-blank and check-box
answers. They are entirely unaccompanied by any explanation, treatment notes, or rationale for the
severity of the opinions. The Sixth Circuit has recently reiterated that such form reports, without
accompanying explanation, constitute “weak evidence at best” and meets the “patently deficient
standard.” Hernandez v. Comm’r of Soc. Sec., 644 F. App’x 468, 475 (6th Cir. 2016). Accordingly,
this argument is rejected.

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Plaintiff further argues the ALJ erred in failing to assign weight to an opinion from
a consultative examiner, Dr. Bharti Sachdev, M.D. (Page.378.) It appears Plaintiff claims the ALJ
should have weighed Dr. Sachdev’s statement that she “has chronic lower back pain with decreased
mobility and mainly the complaint of right hip pain.” (PageID.305.) Plaintiff acknowledges the
lack of functional limitations in Dr. Sachdev’s report, but argues the report “gave some credence to
[her] complaints of pain and further support for the treating source opinion of Dr. Davis.”
(PageID.378.)
Because Dr. Sachdev was not a treating physician, the ALJ was not “under any
special obligation to defer to [his] opinion or to explain why he elected not to defer to it.” Karger
v. Comm’r of Soc. Sec., 414 F. App’x 739, 744 (6th Cir. 2011); see Peterson v. Comm’r of Soc. Sec.,
552 F. App’x 533, 539–40 (6th Cir. 2014). The opinions of a consultative examiner are not entitled
to any particular weight. See Peterson at 539; Norris v. Comm’r of Soc. Sec., 461 F. App’x 433, 439
(6th Cir. 2012). While the ALJ is required to give “good reasons” for the weight assigned a treating
source’s opinion, see Wilson, 378 F.3d at 545, this articulation requirement does not apply when an
ALJ rejects the report of a non-treating medical source, see Smith v. Comm’r of Soc. Sec., 482 F.3d
873, 876 (6th Cir. 2007). However, “the ALJ’s decision still must say enough to allow the appellate
court to trace the path of his reasoning.” Stacey v. Comm’r of Soc. Sec., 451 F. App’x 517, 519 (6th
Cir. 2011) (internal quotation marks omitted).
Here, the ALJ thoroughly discussed Dr. Sachdev’s report, but did not appear to treat
the report as offering a medical opinion by assigning any weight to the report. (PageID.53.)
“Medical opinions are statements from physicians and psychologists or other acceptable medical
sources that reflect judgments about the nature and severity of your impairment(s), including your

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symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical
or mental restrictions.” 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). Relying on this definition, the
Commissioner argues Plaintiff has failed to point to a medical opinion within Dr. Sachdev’s report.
(PageID.396.) Ultimately, the Court need not decide this, assuming arguendo, that Plaintiff is
correct, the ultimate question is whether the ALJ’s decision is supported by substantial evidence.
See Dykes ex rel. Brymer v. Barnhart, 112 F. App’x 463, 468 (6th Cir. 2004). Here, Plaintiff has
failed to demonstrate that Dr. Sachdev’s report that Plaintiff “has chronic lower back pain with
decreased mobility and mainly the complaint of right hip pain” is in any way inconsistent with the
limitations provided by the ALJ that, among other things, limited Plaintiff to a sedentary RFC. See
Pasco v. Comm’r of Soc. Sec., 137 F. App’x 828, 839 (6th Cir. 2005).
For all the above reasons, this claim of error is rejected.
2.

The ALJ’s RFC Determination.

Finally, Plaintiff argues that because the ALJ rejected Dr. Davis’ opinion, the ALJ
“thus formulated [the RFC] upon the bare medical record . . . [and] succumbed to the temptation to
make his own medical findings.” (PageID.381–383.) A review of the decision demonstrates that
the ALJ’s RFC determination is based on substantial evidence, not the ALJ’s own lay opinion.
When determining a claimant’s RFC, “[i]t is well established that the ALJ may not
substitute his medical judgment for that of the claimant’s physicians.” Brown v. Comm’r of Soc.
Sec., No. 1:14–CV–236, 2015 WL 1431521, *7 (W.D. Mich. Mar. 27, 2015) (citing Meece v.
Barnhart, 192 F. App’x 456, 465 (6th Cir. 2006)); see Simpson v. Comm’r of Soc. Sec., 344 F.
App’x 181, 194 (6th Cir. 2009) (quoting Rohan v. Charter, 98 F.3d 966, 970 (7th Cir. 1996)) (“ALJs
must not succumb to the temptation to play doctor and make their own independent medical

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findings.”). However, when evaluating the claimant’s RFC, the ALJ is not required to base his RFC
findings entirely on a physician’s opinion. See Rudd v. Comm’r of Soc. Sec., 531 F. App’x 719, 728
(6th Cir. 2013) (quoting SSR 96–5p) (“[T]o 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.’”). Importantly, “an ALJ does not improperly assume the role of a medical expert by
assessing the medical and non-medical evidence before rendering a residual functional capacity
finding.” Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 157 (6th Cir. 2009).
The Court concludes the ALJ acted squarely within his authority in determining
Plaintiff’s RFC. It is the ALJ who has the ultimate responsibility for assessing a Plaintiff’s RFC,
based on all of the relevant evidence. See 20 C.F.R. §§ 404.1545(a), 416.945(a); Webb v. Comm’r
of Soc. Sec., 368 F.3d 629, 633 (6th Cir. 2004) (“The ALJ is charged with the responsibility of
evaluating the medical evidence and the claimant’s testimony to form an assessment of [their]
residual functional capacity.”) It not the ALJ’s burden to seek out medical opinions to prove or
disprove a disability claim. Brown v. Comm’r of Soc. Sec., 602 F. App’x 328, 331 (6th Cir. 2015).
Rather, it is the Plaintiff’s obligation to provide evidence to support her claim of disability. 20 CFR
§§ 404.1512(c), 416.912(c). The medical evidence in this case has not confirmed the presence of
a disabling impairment. Contrary to Plaintiff’s conclusions, the ALJ did not play doctor in this case.
Rather, the ALJ determined that the medical evidence did not support Plaintiff’s claim of disability
and that the evidence presented was inconsistent with Dr. Davis’s opinion. This claim of error
accordingly fails.

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CONCLUSION
For the reasons articulated herein, the undersigned concludes that the ALJ’s decision
is AFFIRMED. The Court further determines that an appeal of this matter would not be taken in
good faith. See Smith v. Comm’r of Soc. Sec., 1999 WL 1336109, at *2 (6th Cir., Dec. 20, 1999);
Leal v. Comm’r of Soc. Sec., 2015 WL 731311, at *2 (N.D. Ohio, Feb. 19, 2015); see also 28 U.S.C.
§ 1915(a)(3). A separate judgment shall issue.

Dated:

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

November 30, 2016

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