Marijanovic 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
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
VESNA MARIJANOVIC,
Plaintiff,

Case No. 1:15-CV-1209

v.
HON. ELLEN S. CARMODY
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. The parties have agreed to proceed in this Court for all further
proceedings, including an order of final judgment. (ECF No. 8.)
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 & Human
Servs., 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 & 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 evidence 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

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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 fifty years of age on the date of the ALJ’s decision. (PageID.45, 72.)
She possesses a high school education from the country of Croatia and previously worked as an
assembly machine tender. (PageID.74, 91.) Plaintiff applied for benefits on March 26, 2013,
alleging that she had been disabled since December 12, 2012, due to issues stemming from surgery
on both of her hands as well as carpal tunnel syndrome. (PageID.100, 106, 169–170.) Plaintiff’s
applications were denied on April 30, 2013, after which time she requested a hearing before an
Administrative Law Judge (ALJ). (PageID.112–119, 123–125.) On December 17, 2013, Plaintiff
appeared with her counsel before ALJ Carol Guyton for an administrative hearing at which time
both Plaintiff (through an interpreter) and a vocational expert (VE) testified. (PageID.65–97.) In
a written decision dated May 30, 2014, the ALJ determined that Plaintiff was not disabled.
(PageID.45–64.) On September 18, 2015, the Appeals Council declined to review the ALJ’s
decision, making it the Commissioner’s final decision in the matter. (PageID.18–21.) 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

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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));

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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.
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, Plaintiff bears the burden of proof through step four of the
procedure, the point at which her residual functional capacity (RFC) is determined. See Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987); Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir.
1997) (noting that the ALJ determines RFC at step four, at which point the claimant bears the burden
of proof).
The ALJ determined that Plaintiff’s claim failed at step four. At step one, the ALJ
found that Plaintiff had not engaged in substantial gainful activity since her alleged disability onset
date of December 12, 2012. (PageID.50.) At step two, the ALJ found that Plaintiff suffered from

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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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the following severe impairments: (1) bilateral carpal tunnel syndrome and bilateral tenosynovitis,
status post carpal tunnel release and trigger thumb surgeries; (2) diabetes mellitus; (3) obesity; (4)
bipolar disorder; and (5) post-traumatic stress disorder (PTSD). (PageID.50.) At step three, 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 found in 20 C.F.R. Pt. 404, Subpt. P, App. 1.
(PageID.50–52.) At step four, the ALJ determined Plaintiff retained the RFC based on all the
impairments:
to perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except she can only frequently handle with both hands.
In addition, the claimant can perform unskilled work, that is, 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.
(PageID.52.) Continuing with the fourth step, the ALJ posed the above RFC in a hypothetical
question to the VE.2 In response to the ALJ’s questioning, the VE testified that Plaintiff was able
to return to her past relevant work as an assembly machine tender. (PageID.93.) Relying on the
VE’s testimony, the ALJ determined that Plaintiff was capable of performing this work both as it
was generally and as it was actually performed. (PageID.59.) Having made her determination at
step four, the ALJ completed the analysis and entered a decision finding Plaintiff was not under a
disability from her alleged onset date through May 30, 2014, the date of decision. (PageID.60.)

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Vocational expert testimony is not required at step four of the sequential analysis. See Cruse v. Comm’r of
Soc. Sec., 502 F.3d 532, 544–45 (6th Cir. 2007); see also 20 C.F.R. § 404.1560(b)(2). However, the ALJ may use a
vocational expert’s services in determining whether a claimant can perform her past relevant work. 20 C.F.R. §§
404.1560(b)(2), 416.960(b)(2) (a VE “may offer relevant evidence within his or her expertise or knowledge concerning
the physical and mental demands of a claimant’s past relevant work, either as the claimant actually performed it or as
generally performed in the national economy.”). It is common practice for an ALJ to rely upon a VE’s testimony at step
four of the sequential analysis. See, e.g., Delgado v. Comm’r of Soc. Sec., 30 F. App’x 542, 548 (6th Cir. 2002).

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DISCUSSION
1.

The ALJ’s Analysis of Ms. Carrie Raap’s Opinion.

On October 18, 2013, Ms. Carrie Raap, a licensed social worker, completed an
assessment worksheet regarding Plaintiff’s limitations. Ms. Raap was asked to indicate the severity
of Plaintiff’s limitations in several specific categories encompassing the areas of making
occupational adjustments, making performance adjustments, and making personal and social
adjustments. (PageID.486–487.) She also offered an opinion regarding the severity of Plaintiff’s
functional limitations in an area commonly referred to as “paragraph B” criteria. (PageID.487.) Ms.
Raap indicated that Plaintiff’s limitations ranged from none through extreme in severity.3 The social
worker concluded by remarking that:
I have been seeing Mrs. Marijanovic in an out patient mental health
clinic since 5-3-13. She has a diagnosis of Bipolar Disorder and Post
Traumatic Stress Disorder. Mrs. Marijanovic has attended all her
scheduled appointments and has engaged in treatment. While patient
has made some progress in her treatment, it is not significant enough
improvement for her to return to a work environment. Patient came
for treatment following surgery on her hands. This surgery seems to
have triggered her Post Traumatic Stress Disorder and is also making
her symptoms of Bipolar Disorder and emotional instability markedly
worse. Due to her age and symptoms at this time it is unlikely that
Mrs. Marijanovic will make a significant recovery that would allow
her to function in a work environment with no limitations.
(PageID.488.) The ALJ began her discussion by noting that she had considered Ms. Rapp’s opinion
pursuant to Social Security Ruling (SSR) 06–03p, and that opinions regarding whether an individual

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The worksheet defined mild limitations as those “that do not significantly limit a person’s ability to perform
most jobs.” (PageID.486.) Moderate limitations were those “that result in satisfactory but limited function.”
(PageID.486.) Marked limitations were those that “seriously, but not completely, interfere with the ability to function
independently, appropriately, and effectively on a sustained basis.” (PageID.486.) Finally extreme limitations were
those reflecting “a degree of limitation that is incompatible with the ability to do any gainful activity.” (PageID.486.)

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can work are those that are reserved to the Commissioner. The ALJ concluded by stating that she
gave
some weight to Ms. Raap’s opinion that the claimant cannot return to
a work environment with no limitations because the available medical
evidence indicates that the claimant’s mental impairments limit her
to unskilled work with social functioning limitations as set forth in
the residual functional capacity above. The undersigned also gives
some weight to the opined severity of the claimant’s mental
limitations but finds that the medical evidence does not suggest that
the claimant has more than moderate difficulties in maintaining
concentration, persistence, or pace.
(PageID.58.) The thrust of Plaintiff’s claim is that the ALJ’s analysis here falls far short of the
agency’s requirements. The Court disagrees.
The requirement that an ALJ articulate “good reasons” for affording less than
controlling weight to a care provider’s opinion only applies to opinions rendered by acceptable
medical sources. See, e.g., Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007).
Moreover, only acceptable medical sources can offer medical opinions. See, e.g., 20 C.F.R. §§
404.1527(a) (2); 416.927(a)(2). In this context, a medical opinion is defined as “statements from
physicians and psychologists or other acceptable medical sources that reflect judgments about the
nature and severity of your impairment(s), including your 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). A social worker is not an “acceptable medical source.” See 20
C.F.R. §§ 404.1513(a), (d) 416.913(a), (d); see also Payne v. Comm’r of Soc. Sec., 402 F. App’x
109, 119 (6th Cir. 2010) (“[S]ocial workers are not acceptable medical sources under social security
regulations.”). There is no “treating social worker rule,” and the opinion of a social worker is not
entitled to any particular weight. See Hayes v. Comm’r of Soc. Sec., No. 1:09–cv–1107, 2011 WL

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2633945, at *6 (W.D. Mich. June 15, 2011) (collecting cases).
Nevertheless, social workers and other unacceptable medical sources, are permitted
to offer statements regarding “the severity of [a claimant’s] impairment(s) and how [such] affects
[her] ability to work.” See, e.g., 20 C.F.R. §§ 404.1513(d); 416.913(d). When evaluating a
statement from an unacceptable medical source, the ALJ is not required to assess such pursuant to
any particular factors or benchmarks. See, e.g., Gayheart, 710 F.3d at 378 (“[t]he factors set forth
in 20 C.F.R. § 404.1527 . . . apply only to medical opinions from acceptable medical sources”).
Instead, the ALJ is required simply to “consider” statements from unacceptable medical sources.
See, e.g., Gayheart, 710 F.3d at 378 (quoting SSR 06–03P, 2006 WL 2329939 at *4 (S .S.A., Aug.
9, 2006)).
Plaintiff properly identifies SSR 06–03p as providing guidance for considering
opinions from other sources such as social workers. She claims the facts of this case are analogous
to those of an Eastern District of Michigan case in which Magistrate Judge Randon remanded an
ALJ’s decision for failure to properly consider the opinion of an other source opinion under SSR
06–03p. (PageID.664) (citing Hogston v. Comm’r of Soc. Sec., No. CIV.A. 12-12626, 2013 WL
5423781, at *10 (E.D. Mich. Sept. 26, 2013)). Eastern District of Michigan decisions, however, are
not binding on this Court. See Michigan Elec. Employees Pension Fund v. Encompass Elec. & Data,
Inc., 556 F.Supp.2d 746, 761–62 (W.D. Mich.2008); see also White v. Comm’r of Soc. Sec., No.
1:13–cv–172, 2014 WL 1028888, at * 6 n.6 (W.D. Mich. Mar. 17, 2014). Moreover, the Court does
not find the concerns that warranted a remand in Hogston to be present here. The ALJ’s decision
provided an extensive discussion of the record, including a thorough evaluation of Plaintiff’s
treatment with Ms. Raap. (PageID.56–57.) In doing so, the ALJ identified several records that

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noted Plaintiff did not consistently take her medication. (PageID.518, 558, 581, 585.) When she
did take her medication, she reported feeling better. (PageID.540.) On those occasions her mood
improved and she was able to sleep better. (PageID.540, 564.) It was reported that Plaintiff made
“some progress towards goals by taking medication regularly.” (PageID.570.) She was “calmer and
was smiling and friendly.” (PageID.564.) All this, the ALJ concluded, did not warrant limitations
beyond those found in the RFC. (PageID.58.) SSR 06–03p states that “there is a distinction
between what an adjudicator must consider and what the adjudicator must explain in the disability
determination or decision.” Accordingly, “the adjudicator generally should explain the weight given
to 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.” SSR 06–03p, 2006
WL 2329939, at *6 (S.S.A. Aug. 9, 2006). The ALJ has done so here, and accordingly Plaintiff’s
claim of error is rejected
2.

Plaintiff has Waived Her Second Claim of Error.

In her second claim of error, Plaintiff claims the ALJ’s conclusion that she was
capable of performing substantial gainful activity is unsupported by substantial evidence due to the
fact that she consistently had GAF scores of 40 in the period leading up to the administrative
hearing.4 (PageID.653.) These GAF scores are referenced in her statements of facts. (PageID.657.)
Her argument, however, merely provides the following conclusory sentences:

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The Global Assessment of Functioning (GAF) score refers to the clinician’s judgment of the individual’s
overall level of functioning. AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS 32 (4th ed. 2000). A GAF score of 40 indicates “some impairment in reality testing or communication (e.g.,
speech is at times illogical, obscure or irrelevant) OR major impairment in several areas, such as work or school, family
relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child
frequently beats up younger children, is defiant at home, and is failing at school).” Id. at 34.

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The evidence in this case shows that Mrs. Marijanovic, who had
numerous prior psychiatric hospitalizations, and whose mental illness
was documented by many of the medical professionals she saw for
her [physical] impairments, was functioning at a GAF level of 40 for
the eight months prior to the hearing held in this matter. For the ALJ,
without citing any contrary evidence of record, to find that Mrs.
Marijanovic was capable of substantial gainful employment was to
render a decision that was not supported by substantial evidence.
(PageID.666.) Plaintiff has waived this claim of error. “‘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. Comm’r of Soc. Sec., 561 F. App’x 464, 475 (6th Cir. 2014) (“[P]laintiff
develops no argument to support a remand, and thus the request is waived.”). Even if it was not
waived, the Court finds such an argument would fail. Indeed the Sixth Circuit has explicitly rejected
the proposition that an ALJ should determine disability based solely on the unsupported, subjective
determination of a GAF score. Rutter v. Comm’r of Soc. Sec., No. 95–5772, 1996 WL 379424, at
*2 (6th Cir. July 15, 1996); see also Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 511 (6th
Cir. 2006) (noting that there is no “statutory, regulatory, or other authority requiring the ALJ to put
stock in a GAF score in the first place”).
Accordingly, this claim of error is rejected.

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CONCLUSION
For the reasons articulated herein, the Commissioner’s decision will be AFFIRMED.
A separate judgment shall issue.

Date: January 19, 2017

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

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