Fishel v. Commissioner of Social Security
OPINION; signed by Magistrate Judge Ray Kent (Magistrate Judge Ray Kent, fhw)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
CHRISTINA MARIE FISHEL,
Case No. 1:15-cv-1271
Hon. Ray Kent
COMMISSIONER OF SOCIAL
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of
a final decision of the Commissioner of the Social Security Administration (Commissioner) denying
her claim for Supplemental Security Income (SSI).
Plaintiff alleged a disability onset date of January 1, 2012. PageID.191. Plaintiff
identified her disabling conditions as learning disabled, depression, insomnia, anxiety and emotional
problems. PageID.195. She completed high school and had previous employment as a housekeeper
in a motel and a recreational aide in a senior citizen home. PageID.196. An ALJ reviewed plaintiff’s
claim de novo and entered a written decision denying benefits on August 7, 2014. PageID.37-46.
This decision, which was later approved by the Appeals Council, has become the final decision of
the Commissioner and is now before the Court for review.
I. LEGAL STANDARD
This court’s review of the Commissioner’s decision is typically focused on
determining whether the Commissioner’s findings are supported by substantial evidence. 42 U.S.C.
§405(g); McKnight v. Sullivan, 927 F.2d 241 (6th Cir. 1990). “Substantial evidence is more than
a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Cutlip v. Secretary of Health & Human
Services, 25 F.3d 284, 286 (6th Cir. 1994). A determination of substantiality of the evidence must
be based upon the record taken as a whole. Young v. Secretary of Health & Human Services, 925
F.2d 146 (6th Cir. 1990).
The scope of this review is limited to an examination of the record only. This Court
does not review the evidence de novo, make credibility determinations or weigh the evidence.
Brainard v. Secretary of Health & Human Services, 889 F.2d 679, 681 (6th Cir. 1989). The fact that
the record also contains evidence which would have supported a different conclusion does not
undermine the Commissioner’s decision so long as there is substantial support for that decision in
the record. Willbanks v. Secretary of Health & Human Services, 847 F.2d 301, 303 (6th Cir. 1988).
Even if the reviewing court would resolve the dispute differently, the Commissioner’s decision must
stand if it is supported by substantial evidence. Young, 925 F.2d at 147.
A claimant must prove that he suffers from a disability in order to be entitled to
benefits. A disability is established by showing that the claimant cannot engage in substantial
gainful activity by reason of any medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than twelve months. See 20 C.F.R. §416.905; Abbott v. Sullivan, 905 F.2d 918, 923 (6th
Cir. 1990). In applying the above standard, the Commissioner has developed a five-step analysis:
The Social Security Act requires the Secretary to follow a “five-step
sequential process” for claims of disability. First, plaintiff must demonstrate that she
is not currently engaged in “substantial gainful activity” at the time she seeks
disability benefits. Second, plaintiff must show that she suffers from a “severe
impairment” in order to warrant a finding of disability. A “severe impairment” is one
which “significantly limits . . . physical or mental ability to do basic work activities.”
Third, if plaintiff is not performing substantial gainful activity, has a severe
impairment that is expected to last for at least twelve months, and the impairment
meets a listed impairment, plaintiff is presumed to be disabled regardless of age,
education or work experience. Fourth, if the plaintiff's impairment does not prevent
her from doing her past relevant work, plaintiff is not disabled. For the fifth and final
step, even if the plaintiff’s impairment does prevent her from doing her past relevant
work, if other work exists in the national economy that plaintiff can perform, plaintiff
is not disabled.
Heston v. Commissioner of Social Security, 245 F.3d 528, 534 (6th Cir. 2001) (citations omitted).
The claimant bears the burden of proving the existence and severity of limitations
caused by her impairments and the fact that she is precluded from performing her past relevant work
through step four. Jones v. Commissioner of Social Security, 336 F.3d 469, 474 (6th Cir. 2003).
However, at step five of the inquiry, “the burden shifts to the Commissioner 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. If it is determined that a claimant is or is not
disabled at any point in the evaluation process, further review is not necessary. Mullis v. Bowen, 861
F.2d 991, 993 (6th Cir. 1988).
“The federal court’s standard of review for SSI cases mirrors the standard applied in
social security disability cases.” D’Angelo v. Commissioner of Social Security, 475 F. Supp. 2d 716,
719 (W.D. Mich. 2007). “The proper inquiry in an application for SSI benefits is whether the
plaintiff was disabled on or after her application date.” Casey v. Secretary of Health and Human
Services, 987 F.2d 1230, 1233 (6th Cir. 1993).
II. ALJ’S DECISION
Plaintiff’s claim failed at the fifth step of the evaluation. At the first step, the ALJ
found that plaintiff has not engaged in substantial gainful activity since her SSI application date of
May 24, 2012. PageID.39. At the second step, the ALJ found that plaintiff had severe impairments
of a learning disability, borderline intellectual functioning, depression, and an anxiety disorder. Id.
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 in 20 C.F.R. Pt. 404,
Subpt. P, App. 1. PageID.41.
The ALJ decided at the fourth step that:
[T]he claimant has the residual functional capacity to perform a full range of work
at all exertional levels but with the following nonexertional limitations: work must
be limited to simple, routine and repetitive tasks in a work environment free of fast
paced production requirements involving only simple work-related decisions and
routine workplace changes. The claimant is likely to be off task 8% of the work
PageID.43. The ALJ also found that plaintiff had no past relevant work. PageID.45.
At the fifth step, the ALJ determined that plaintiff could perform a significant number
of unskilled jobs at all exertional levels in the national economy. PageID.45-46. Specifically, the
ALJ found that plaintiff could perform the unskilled work in the region (Michigan) such as: medium
dishwasher (8,600 jobs); light packaging (1,700 jobs); and light assembly (4,400 jobs). PageID.46.
Accordingly, the ALJ determined that plaintiff has not been under a disability, as defined in the
Social Security Act, since May 24, 2012, the date the application for SSI was filed. Id.
Plaintiff raised two issues on appeal:
Whether the Commissioner erred in failing to
obtain or attempt to obtain plaintiff’s prior
Plaintiff contends that the ALJ committed error by failing to obtain a copy of her
previous award of SSI benefits in 1993. The gist of plaintiff’s claim is that “the prior file is
extremely relevant due to the listing of 12.05 to determine whether claimant had an IQ of 70 or
below that can be established prior to her 22nd birthday.” Plaintiff’s Brief (docket no. 13,
PageID.497). A disability report in the present case indicates that plaintiff was found disabled on
June 1, 1993, and benefits terminated in May 2008. PageID.192. Plaintiff contends that benefits
were terminated because she was financially disqualified due to a marriage in May 2008 and that this
prior claim file is highly relevant to her current claim. PageID.497. Defendant points out that this
file no longer exists, noting that the code on the disability report (“L47”) indicates that the file has
been destroyed per agency protocol. PageID.192, 507. See POMS (Programs Operations Manual
System) DI 11005.05 (explaining that code “L47 = destroyed”).1 In short, there was no file which
the ALJ could retrieve. It is unclear whether counsel requested the file from the ALJ; a letter in the
record indicates that he requested it from the Appeals Council after the ALJ’s unfavorable decision.
PageID.269-271. Because the file is destroyed, plaintiff’s claim of error is denied as moot to the
extent she seeks a copy of it.
However, plaintiff includes a related claim. In her pre-hearing memorandum, plaintiff
points out that she was awarded SSI benefits as a child, that the benefits continued into adulthood,
that she was financially disqualified from receiving SSI benefits upon her marriage, is now divorced,
POMS is a policy and procedure manual that is used in evaluating Social Security claims. Davis
v. Secretary of Health & Human Services, 867 F.2d 336, 340 (6th Cir. 1989).
and asked to reinstate the previous SSI benefits. PageID.262-263. As discussed, the previous award
of benefits was documented in her record. Counsel pointed out that plaintiff attended special
education classes as a child, lives with her parents, does not have a driver’s license (having failed
the driving test on four occasions), and has never held full-time employment. PageID.262-263. At
the administrative hearing, plaintiff testified that she failed to get a driver’s license, that she cannot
cook without burning things, that most of her classes in high school were special education classes,
that she could not care for her child without her parents’ help, that she never lived by herself, that
she received SSI until she was married, and that she was divorced in October 2012. PageID.59, 67.
The issue of plaintiff’s IQ score was also discussed at the hearing. When plaintiff’s counsel stated
that they did not have an “actual exam” other than her primary treater’s estimate that it was between
60 and 70, and that the school no longer had records, the ALJ stated “I’d be curious to know what
that is.” PageID.69. At the close of the hearing, counsel argued that plaintiff was seeking
reinstatement of her previously awarded SSI benefits, which had ceased due to economic
The ALJ’s decision did not address the fact that plaintiff had been previously found
disabled, received SSI benefits for about 15 years, and that those benefits were terminated due to
economic ineligibility (as opposed to medical improvement). “The existence of a prior established
disability is highly relevant when the nature of that disability appears to be the very same cause of
the alleged disability then under examination.” Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir. 1984).
In this regard, the ALJ’s statement that “there is no indication in the objective medical evidence of
record that the claimant had any significant deficits in adaptive functioning prior to the attainment
of age 22” appears inconsistent with the fact that plaintiff was deemed disabled and eligible for SSI
when she was an eleven-year-old child. Finally, while the record reflects that plaintiff underwent
a consultative psychological evaluation by an agency psychologist after the hearing, PageID.37, 40,
477-485, this did not include an IQ test (even though the unresolved issue of plaintiff’s IQ was
discussed at the hearing). Given this record, the ALJ’s decision is not supported by substantial
evidence because it failed to acknowledge plaintiff’s prior established disability. In reaching this
determination, the undersigned is aware that the records from plaintiff’s 1993 disability
determination were destroyed. Nevertheless, the ALJ was on notice that the agency had previously
found plaintiff disabled and could have taken some steps to inquire about the basis for the prior
award of SSI benefits, which were not terminated due to medical improvement. Accordingly, this
matter will be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g). On remand,
the Commissioner should re-evaluate plaintiff’s claims taking into account her prior established
Whether the Commissioner erred in failing to
assign controlling weight to plaintiff’s treating
primary care physician, Dr. Paul Wagner, D.O.
Next, plaintiff contends that the ALJ failed to properly evaluate Dr. Wagner as her
treating physician. The ALJ addressed Dr. Wagner’s opinion as follows:
The record contains a series of medical records from Hart Family Medical
Center covering the timeframe from June 2012 to June 2013 (Exhibit B4 F). Similar
to above, the claimant was treated for a variety of minor physical ailments such as
upper respiratory infections, obesity, ankle/foot pain, chest wall pain, a menstrual
disorder NOS, vaginitis, and a left shoulder sprain with a fairly unremarkable MRI.
Again, these physical problems were either mild in severity and/or were reasonably
well controlled. They do not cause the claimant any significant functional limitations.
In view of these considerations, and as reflected above, the claimant is not found to
have any severe physical impairment herein.
More recent medical records from Hart Family Medical Center covering the
timeframe from July 2013 to February 2014 show ongoing treatment for depression
in addition to treatment for an anxiety state (Exhibits B5F; B6F). As of February 3,
2014, it was reported that the claimant’s anxiety and depression remained stable, and
that she was having no complications noted from the medication presently being used
(Exhibit B6F, p.2).
On February 5, 2014, Dr. Wagner completed a mental medical source
statement regarding the claimant’s work-related abilities (Exhibit B7F). He reported
to the effect that the claimant has fair to poor ability to function in many work-related
areas. He estimated that the claimant has a borderline intellect with an IQ between
60 and 70.
The undersigned is placing very little to no weight on the mental medical
source statement completed by Dr. Wagner on February 5, 2014 as discussed above
(Exhibit B7F). The limitations placed on the claimant by Dr. Wagner appear to be
considerably over restrictive and are not well supported objectively. Dr. Wagner
merely estimates that the claimant has a borderline intellect with an IQ ranging from
60-70. No formal intelligence testing (such as the Wechsler series) has been
administered to the claimant, and there are no school records showing severely
diminished IQ or even confirming placement in special education. Moreover, there
is no evidence that Dr. Wagner is a treating source physician or how long the
claimant has treated with this doctor.
PageID.45 (emphasis in original).
Plaintiff contends that the ALJ’s decision is not supported by substantial evidence
because the ALJ violated the regulations by erroneously stating that Dr. Wagner was not a treating
source. PageID.499-500. While plaintiff states that “Dr. Wagner has known claimant her entire
life,” PageID.499, she cites no evidence to support this claim. Nevertheless, the records reflect that
Dr. Wagner treated plaintiff for at least a year during the relevant time period (i.e., after the alleged
disability onset date of January 1, 2012). Dr Wagner’s name appears as plaintiff’s physician on
various forms from as early as November 11, 2012. See PageID.322, 337, 342, 346, 360, 362, 367,
369, 370, 371, 387, 419-421, 447-449, 456-457, 459-462. Dr. Wagner also adjusted plaintiff’s
medications on at least two occasions, PageID.420, 457, 460, and prescribed counseling for anxiety
and depression on November 4, 2013, PageID.462.
Defendant acknowledges that “the ALJ might have erred in concluding that Dr.
Wagner was not a treating source.” Defendant’s Brief (docket no. 14, PageID.507). However,
defendant implies that this was harmless error because the doctor’s opinion was not well-supported
objectively and only estimated plaintiff’s IQ score. Id.
A treating physician’s medical opinions and diagnoses are entitled to great weight in
evaluating plaintiff's alleged disability. Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001). “In
general, the opinions of treating physicians are accorded greater weight than those of physicians who
examine claimants only once.” Walters v. Commissioner of Social Security, 127 F.3d 525, 529-30
(6th Cir. 1997). “The treating physician doctrine is based on the assumption that a medical
professional who has dealt with a claimant and his maladies over a long period of time will have a
deeper insight into the medical condition of the claimant than will a person who has examined a
claimant but once, or who has only seen the claimant’s medical records.” Barker v. Shalala, 40 F.3d
789, 794 (6th Cir. 1994). See 20 C.F.R. § 416.927(c)(2) (“Generally, we give more weight to
opinions from your treating sources, since these sources are likely to be the medical professionals
most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring
a unique perspective to the medical evidence that cannot be obtained from the objective medical
findings alone or from reports of individual examinations, such as consultative examinations or brief
Under the regulations, a treating source’s opinion on the nature and severity of a
claimant’s impairment must be given controlling weight if the Commissioner finds that: (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. See
Gayheart v. Commissioner of Social Security, 710 F.3d 365, 375 (6th Cir. 2013). Finally, the ALJ
must articulate good reasons for not crediting the opinion of a treating source. See Wilson v.
Commissioner of Social Security, 378 F.3d 541, 545 (6th Cir. 2004); 20 C.F.R. § 416.927(c)(2)
(“[w]e will always give good reasons in our notice of determination or decision for the weight we
give your treating source’s opinion”).
In evaluating medical opinions, “[t]he source of the opinion . . . dictates the process
by which the Commissioner accords it weight.” Gayheart, 710 F.3d at 376. “If the Commissioner
does not give a treating-source opinion controlling weight, then the opinion is weighed based on the
length, frequency, nature, and extent of the treatment relationship . . . as well as the treating
source’s area of specialty and the degree to which the opinion is consistent with the record as a
whole and is supported by relevant evidence.” Gayheart, 710 F.3d at 376. See 20 C.F.R. §
Here, the ALJ failed to give good reasons for the weight assigned to Dr. Wagner’s
opinion because he did not classify Dr. Wagner as a treating physician. The ALJ’s failure to address
the extent of the doctor’s treatment relationship with plaintiff runs contrary to the regulatory scheme
for evaluating medical opinions. Defendant has not persuaded the undersigned that this fundamental
mis-characterization of the Dr. Wagner is harmless error. See Wilson, 378 F.3d at 545-46 (the ALJ’s
failure to give “good reasons” for not crediting a treating physician’s opinion does not constitute
harmless error). Furthermore, given that the agency destroyed plaintiff’s previous file and that the
ALJ did not order a post-hearing IQ test, Dr. Wagner’s IQ estimate is the only evidence on record.
Accordingly, this matter will be reversed and remanded pursuant to sentence four of 42 U.S.C. §
405(g) for a re-evaluation of Dr. Wagner’s opinion.
Accordingly, the Commissioner’s decision will be REVERSED and REMANDED
pursuant to sentence four of 42 U.S.C. § 405(g). On remand, the Commissioner is directed to (1)
re-evaluate plaintiff’s claims taking into account her prior established disability, and (2) re-evaluate
Dr. Wagner’s opinion. A judgment consistent with this opinion will be issued forthwith.
Dated: March 27, 2017
/s/ Ray Kent
United States Magistrate Judge
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