Papp v. Commissioner of Social Security

Filing 14

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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

CYNTHIA K. PAPP,
Plaintiff,

Case No. 1:16-CV-111

v.

HON. GORDON J. QUIST

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 Cynthia Papp 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. 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.
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 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
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-seven years of age on the date of the ALJ’s decision (PageID.85,
95, 107.) She completed high school and was previously employed as a newspaper carrier.
(PageID.76, 115, 240.) Plaintiff filed for benefits on June 28, 2013, alleging that she had been
disabled since January 1, 2010, due to shoulder problems and arthritis. (PageID.85, 95, 210–217.)
Plaintiff’s applications were denied on December 17, 2013, after which time she sought a hearing
before an ALJ. (PageID.124–145.) On November 4, 2014, Plaintiff appeared with her counsel
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before ALJ Yvette Diamond, during which time both Plaintiff and a vocational expert (VE) testified.
(PageID.47–83.) At the hearing, Plaintiff amended her onset date to March 22, 2012. (PageID.50.)
On November 29, 2014, the ALJ issued an unfavorable decision, finding Plaintiff was not disabled.
(PageID.107–120.) On December 8, 2015, the Appeals Council declined to review the ALJ’s
decision, making it the Commissioner’s final decision in the matter. (PageID.33–35.) 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
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), 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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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.
The ALJ determined Plaintiff’s claim failed at step four. At step one, the ALJ found
that Plaintiff had not engaged in substantial gainful activity since her amended alleged onset date.
(PageID.112.) At step two, the ALJ found that Plaintiff suffered from the severe impairment of
osteoarthritis. (PageID.112–113.) 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.113.) 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 lift and carry twenty pounds occasionally
and ten pounds frequently; stand or walk for six out of eight hours;
and sit for six out of eight hours. She can perform unlimited pushing
and pulling. She can frequently climb stairs, balance, stoop, kneel,
crouch, and crawl but can only occasionally climb ladders. She can
perform frequent overhead reaching.
(PageID.113.) 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 a newspaper carrier. (PageID.77–78.) Relying on the VE’s
testimony, the ALJ determined that Plaintiff was capable of returning to her past relevant work.
(PageID.115–116.) 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
November 29, 2014, the date of decision. (PageID.116.)

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Although not required, 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 Failure to Use the “Special Technique” Was Harmless Error.

As noted above, Plaintiff initially alleged she was disabled due to shoulder problems
and arthritis. (PageID.85, 95.) Later in a disability appeal form, however, she also alleged disability
due to depression. (PageID.296.). And at the hearing, Plaintiff’s depression was emphasized as an
alleged disabling impairment. (PageID.51.) The ALJ determined, however, that Plaintiff did not
have a severe mental impairment at step two. (PageID.113.) Plaintiff claims the ALJ erred at this
step, because she should have used the “special technique” found in 20 CFR §§ 404.1520a, 416.920a
when assessing the severity of her mental impairment. (PageID.461.)
The agency’s regulations provide that “when we evaluate the severity of mental
impairments for adults . . . we must follow a special technique at each level in the administrative
review process.” 20 C.F.R. §§ 404.1520a(a), 416.920a(a). The agency’s use of the “special
technique” is explained as follows:
(b) Use of the technique.
(1)

Under the special technique, we must first evaluate your pertinent symptoms,
signs, and laboratory findings to determine whether you have a medically
determinable mental impairment(s). See § 416.908 for more information
about what is needed to show a medically determinable impairment. If we
determine that you have a medically determinable mental impairment(s), we
must specify the symptoms, signs, and laboratory findings that substantiate
the presence of the impairment(s) and document our findings in accordance
with paragraph (e) of this section.

(2)

We must then rate the degree of functional limitation resulting from the
impairment(s) in accordance with paragraph (c) of this section and record our
findings as set out in paragraph (e) of this section.

20 C.F.R. §§ 404.1520a(b), 416.920a(b). The controlling legal authority on this point is the Sixth
Circuit’s decision in Rabbers v. Commissioner of Social Security, 582 F.3d 647 (6th Cir. 2009). The
court summarized the use of the special technique at step two as follows:
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At step two, an ALJ must evaluate the claimant’s “symptoms, signs,
and laboratory findings” to determine whether the claimant has a
“medically determinable mental impairment(s).” [20 C.F.R. §
404.1520a(a),] § 404.1520a(b)(1). If the claimant has a medically
determinable mental impairment, the ALJ “must then rate the degree
of functional limitation resulting from the impairment(s)” with
respect to “four broad functional areas”: “[a]ctivities of daily living;
social functioning; concentration, persistence, or pace; and episodes
of decompensation.” Id. §§ 404.1520a(b)(2), (c)(3). These four
functional areas are commonly known as the “B criteria.” See 20
C.F.R. pt. 404, subpt. P, app. 1, § 12.00 et seq.; Craft v. Astrue, 539
F.3d 668, 674 (7th Cir. 2008). The degree of limitation in the first
three functional areas is rated using the following five-point scale:
none, mild, moderate, marked, and extreme. 20 C.F.R. §
404.1520a(c)(4). The degree of limitation in the fourth functional
area (episodes of decompensation) is rated using the following
four-point scale: none, one or two, three, four or more. Id. If the ALJ
rates the first three functional areas as “none” or “mild” and the
fourth area as “none,” the impairment is generally not considered
severe and the claimant is conclusively not disabled. Id. §
404.1520a(d)(1). Otherwise, the impairment is considered severe and
the ALJ will proceed to step three. See id. § 404.1520a(d)(2).
Id. at 652–53. The Rabbers court further noted that
[T]he regulations require an ALJ to document the application of this
special technique in the written decision. [20 C.F.R. §
404.1520a(d)(3),] § 404.1520a(e). Until 2000, an ALJ was required
to complete a [Psychiatric Review Technique Form] and append the
form to the decision. See Revised Medical Criteria for Evaluating
Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg. 50,746
(Aug. 21, 2000). Now, the regulations require only an ALJ’s written
decision to “incorporate the pertinent findings and conclusions based
on the technique.” 20 C.F.R. § 404.1520a(e)(2). The decision must
refer to the “significant history, including examination and laboratory
findings, and the functional limitations that were considered in
reaching a conclusion about the severity of the mental
impairment(s).” Id. The decision must also “include a specific
finding as to the degree of limitation in each of the functional areas.”
Id.
Id. at 653–654. The ALJ discussed Plaintiff’s depression at step two as follows:
I also considered the claimant’s alleged depression (both singly and
in combination with her severe impairments) and found it to be
nonsevere. There is little if any mental health treatment for
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depression noted in the record. Additionally, the claimant’s primary
care provider Amy Werling, PA-C classified her depression as mild
on August 14, 2013. (Exhibit 3F, p1). Moreover, the claimant
testified that she does not see a psychiatrist or a therapist. However,
I have fully considered the effects of the claimant’s non-severe
impairments, particularly in conjunction with the effects of her severe
ones, in determining his [sic] residual functional capacity, as is
required by SSR 96-8p.
(PageID.113.) It is undisputed that the ALJ did not evaluate Plaintiff’s depression under the special
technique. The ALJ did not include a specific finding regarding the degree of limitation in each of
the functional areas. But that is not the end of the analysis. In an extensive discussion, the Rabbers
court went on to decline the plaintiff’s argument that harmless error should not apply when an ALJ
fails to apply the special technique. Instead, the Court noted that in situations in which a court is
[f]aced with an ALJ’s failure to address the [special technique] . . . a reviewing court
need only ask whether the record indicates that the claimant’s mental impairment
would have ultimately satisfied the B criteria. This kind of evidence—evidence
regarding the claimant’s activities of daily living, social functioning, concentration,
persistence, or pace, and episodes of decompensation—is objective, concrete factual
and medical evidence that will be apparent in the record, at least in some cases.
Id. at 656–57. The court warned, however, that reviewing courts should “exercise caution” in
conducting the harmless error analysis, noting that “in some cases . . . the record may contain
conflicting or inconclusive evidence relating to the [special technique.] Or it may contain evidence
favorable to the claimant that the ALJ simply failed to acknowledge or consider.” Id. at 657.
Here, the Court finds there to be objective evidence, apparent in the record, that
Plaintiff does not satisfy the paragraph B criteria. As an initial matter, an agency consultant
explicitly found that Plaintiff did not satisfy the paragraph B criteria, noting that Plaintiff had only
mild restrictions in activities of daily living, mild difficulties in maintaining concentration,
persistence or pace, and had experienced no repeated episodes of decompensation of extended
duration. As noted above, this determination would lead, under the regulations, to a finding that
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Plaintiff did not have a severe mental impairment. (PageID.90.) The record supports such a
conclusion. In her first function report, dated August 9, 2013, Plaintiff reported only physical
difficulties as limiting her ability to work. (PageID.258.) She spent the day doing chores, using the
computer, and taking care of her husband. (PageID.259.) She had no problems with her personal
care. (PageID.259.) She described her hobbies as including “walking” and “riding bikes” and that
she loved “just being with friends and being out doors.” (PageID.262.) She stated there were no
changes in her social activities since her illnesses began. (PageID.263.) She was able to follow
written and spoken instructions. (PageID.263.) On her April 17, 2014, function report, Plaintiff
reported “severe depression” as limiting her ability to work. (PageID.308.) She generally alleged
more limitations than in her initial report, but still reported she was able to talk on the phone with
friends every day, and visit with them about once a week. (PageID.311.) At the hearing she
testified she was currently working as a newspaper carrier about eight hours a week. (PageID.54.)
She lived with her daughter and grandchildren, though she testified she didn’t do anything with
them. (PageID.66.) She would ride a bike “occasionally.” (PageID.70.) She was able to watch a
whole episode of a television program. (PageID.73.) All this points to a finding that Plaintiff could
not meet the paragraph B functional criteria.
Important to the harmless error analysis, there is little evidence pointing to a contrary
finding. At the hearing, Plaintiff testified that her depression made her just want to lie around and
not do anything. But most of her testimony related to her physical complaints. (PageID.73.) The
record also contains several notes from Plaintiff’s primary care provider, Ms. Amy Werling, a
physician’s assistant. (PageID.463.) Plaintiff notes, for example, the results of an April 3, 2014,
patient questionnaire that found she had severe depression and was a medium risk for suicide.
(PageID.364) The record from that date shows Ms. Werling diagnosed Plaintiff with depression and
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started her on medication. (PageID.367.) But the record also shows that Plaintiff began to improve
after starting this medication. At a June 11, 2014, visit, Plaintiff was described as doing well on the
medication. She did not have a depressed mood, or diminished interest or pleasure. (PageID.412.)
Two months later, Plaintiff’s health questionnaire indicated only mild depression. (PageID.371.)
She had an appropriate mood and affect. (PageID.371.) The Court does not doubt that Plaintiff
experiences limitations in certain areas of functioning, but the assertion that she meets the functional
criteria of paragraph B is not supported by the record. Harmless error accordingly applies. Rabbers,
582 F.3d at 656–57
In making the above determination, the Court rejects Plaintiff’s attempt to distinguish
Rabbers. Specifically, Plaintiff notes that in Rabbers, the ALJ classified the plaintiff’s mental
impairment as severe at step two. Here, on the other hand, the ALJ found that Plaintiff’s depression
did not constitute a severe impairment. The Court finds that this difference does not require a
different result. The fact remains that nothing in the record supports a finding that Plaintiff satisfies
the paragraph B criteria. To the extent that Plaintiff argues the ALJ’s failure to classify her
depression as severe is reversible error, the Court disagrees. As Plaintiff concedes, the Sixth Circuit
has held that where the ALJ finds the presence of a severe impairment at step two and proceeds to
continue through the remaining steps of the analysis, the alleged failure to identify as severe some
other impairment constitutes harmless error so long as the ALJ considered the entire medical record
in rendering his decision. See Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th
Cir. 1987); Kirkland v. Comm’r of Soc. Sec., 528 F. App’x 425, 427 (6th Cir. 2013) (“so long as the
ALJ considers all the individual’s impairments, the failure to find additional severe impairments .
. . does not constitute reversible error”). Plaintiff argues, however, that these cases should not apply
because the ALJ failed to consider her depression and evidence relating to the impairment past step
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two. (PageID.463.) She points to the ALJ’s statement that “[t]here is little if any mental health
treatment for depression noted in the record.” (PageID.113.)
It is apparent that the ALJ considered Plaintiff’s depression in crafting the RFC. For
example, the ALJ noted Plaintiff’s testimony, as well as a treatment note from Ms. Werling finding
Plaintiff had mild depression, and then specifically explained that she had considered the non-severe
impairments in crafting the RFC. (PageID.113.) Later in the RFC discussion, the ALJ noted that
Plaintiff received psychiatric medication from Ms. Werling, but did not see a psychiatrist or a
therapist for her depression. (PageID.114.) While the ALJ could have, perhaps, more fully discussed
this impairment, the ALJ is not required to discuss every piece of evidence, and her failure to do so
does not indicate that the evidence was not considered. See Daniels v. Comm’r of Soc. Sec., 152 F.
App’x 485, 489 (6th Cir. 2005); Simons v. Barnhart, 114 F. App’x 727, 733 (6th Cir. 2004); accord
Van Der Maas v. Comm’r of Soc. Sec., 198 F. App’x 521, 526 (6th Cir. 2006).
For all the above reasons, the Court finds remand is not appropriate. See Shinseki v.
Sanders, 556 U.S. 396, 407 (2009) (recognizing that the harmless error doctrine is intended to
prevent reviewing courts from becoming “impregnable citadels of technicality”); Heston v. Comm’r
of Soc. Sec., 245 F.3d 528, 535–36 (6th Cir. 2001) (recognizing that remand to correct an error
committed by the ALJ was unnecessary where such error was harmless); Fisher v. Bowen, 869 F.2d
1055, 1057 (7th Cir. 1989) (“no principle of administrative law or common sense requires us to
remand a case in quest of a perfect opinion unless there is reason to believe that the remand might
lead to a different result”).
2.

The ALJ’s Evaluation of the Opinion Evidence.

On February 14, 2014, Ms. Werling completed an RFC worksheet regarding
Plaintiff’s limitations. (PageID.360–361.) Among other things, she indicated that Plaintiff’s
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symptoms would frequently interfere with her attention and concentration. She would need to be
able to shift positions at will, and take unscheduled breaks. (PageID.360.) She could only
occasionally lift and carry ten pound weights. (PageID.361.) Plaintiff could use her upper
extremities for grasping, turning, twisting, and reaching for objects only twenty percent of a
workday. She could never perform fine manipulation. (PageID.361.) Plaintiff was not capable of
working a full time job on a sustained basis, but were she to work, she could be expected to miss
work three to four times a month. (PageID.361.) The ALJ assigned only little weight to the opinion,
noting that Ms. Werling was not an acceptable source, and that the opinion was not supported by
Plaintiff’s activities, the evidence presented, and Plaintiff’s testimony. (PageID.115.) Plaintiff
argues that the ALJ committed reversible error failing to “provide sufficient rationale to indicate she
properly applied the standard outlined in SSR 06-03p” when considering Ms. Werling’s opinion.
(PageID.466.) The Court disagrees.
Physician’s assistants are not “acceptable medical sources.” See 20 C.F.R. §§
404.1513(a), (d), 416.913(a), (d). There is no “treating physician’s assistant rule” and the opinions
of a physician’s assistant are not entitled to any particular weight. See Geiner v. Astrue, 298 F.
App’x 105, 108 (2d Cir. 2008). As Plaintiff’s correctly notes, SSR 06–3p clarifies how the Social
Security Administration “consider[s] opinions from sources who are not ‘acceptable medical
sources.’” SSR 06–3p, 2006 WL 2329939, at *1 (S.S.A. Aug. 9, 2006)). SSR 06–3p begins by
emphasizing the critical distinctions between opinions offered by “acceptable medical sources” and
opinions supplied by “other sources.” Only “acceptable medical sources” can: (1) provide evidence
establishing the existence of a medically determinable impairment; (2) provide a medical opinion;
and (3) be considered a treating source whose medical opinion could be entitled to controlling
weight under the treating physician rule. Id. at *1. The opinions of a physician’s assistant fall within
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the category of information provided by “other sources.” Id. at *2; see 20 C.F.R. §§ 404.1513(d),
416.913(d). The social security regulations require that information from other sources be
“considered.” 2006 WL 2329939, at *1, 4 (citing 20 C.F.R. §§ 404 .1512, 1527, 416.912, 927). The
ruling recognizes, however:
With the growth of managed health care in recent years and the
emphasis on containing medical costs, medical sources who are not
“acceptable medical sources,” such as nurse practitioners, physician
assistants, and licensed clinical social workers, have increasingly
assumed a greater percentage of the treatment and evaluation
functions previously handled primarily by physicians and
psychologists. Opinions from these medical sources, who are not
technically deemed “acceptable medical sources” under our rules, are
important and should be evaluated on key issues such as impairment
severity and functional effects, along with the other relevant evidence
in the file.
SSR 06–03p, 2006 WL 2329939, at *3 (S.S.A. Aug. 9, 2006). Accordingly, the ruling further
provides that “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.” Id. at *6. It further states that the factors
for considering acceptable source opinions “can” be applied to these opinions. Id. at *4. This
standard was easily met here. The ALJ thoroughly discussed the opinion and provided several
reasons for assigning it only little weight. The ALJ correctly noted that Plaintiff was a physician’s
assistant. Contrary to Plaintiff’s assertion, the regulations state that a specialization is a relevant
factor for consideration. See 20 C.F.R. §§ 404.1527, 416.927. The ALJ also found the opinion was
not supported by the record. For example, in August 2013, Plaintiff told Ms. Werling she was able
to perform her normal activities, albeit with some pain. (PageID.335.) Dr. Naveed Naeem, a
consultative examiner and acceptable source, found Plaintiff was able to “perform all activities of
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daily living without difficulty.” (PageID.324.) She was able to perform activities like picking up
coins from a flat surface, button, unbutton, zip, unzip, and tie shoes. (PageID.325.) She could lift
fifty pounds occasionally, and twenty-five ponds frequently. She had no postural or manipulative
limitations. (PageID.326.) Substantial evidence therefore supports the ALJ’s decision to assign
only little weight to Ms. Werling’s opinion.
CONCLUSION
For the reasons articulated herein, the Commissioner’s decision will be AFFIRMED.
The Court further determines that 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. 1999); Leal v. Comm’r of Soc. Sec., 2015
WL 731311, at *2 A separate judgment shall issue.

Dated: December 27, 2016

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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