Thomas v. Commissioner of Social Security

Filing 20

OPINION ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

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

ERICKA M. THOMAS,
Plaintiff,

Case No. 1:16-CV-262

v.
HON. ROBERT J. JONKER
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 seeks review of the Commissioner’s decision that she was no longer
entitled to supplemental security income (SSI).
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
The ALJ summarized the procedural history of this case as follows:
In an initial determination from October 2005, the claimant was
found disabled as of October 1, 1995 pertaining to her claims for
supplemental security income and childhood disability insurance (on
the record of CM Thomas). The claimant’s disability was
subsequently determined to have continued in a determination dated
November 29, 2005 (Exhibit 3F).
The Social Security Administration completed a second continuing
disability review and, on July 24, 2012, it determined that the
claimant was no longer disabled as of July 1, 2012. This
determination was upheld upon reconsideration after a disability
hearing by a State agency Disability Hearing Officer. Thereafter, the

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claimant filed [a] timely written request for a hearing before an
Administrative Law Judge.
(PageID.36.) From there, Plaintiff appeared with her counsel before ALJ James Prothro for an
administrative hearing on June 26, 2014. (PageID.48–96.) On September 12, 2014, the ALJ issued
his decision finding that Plaintiff was no longer disabled. (PageID.33–47.) On January 11, 2016, the
Appeals Council denied review, making it the Commissioner’s final decision. (PageID.28–31.) This
action followed.
ALJ’S DECISION
ALJs employ an eight-step sequential analysis in Title II claims and seven steps in
Title XVI claims when assessing a continuation of benefits case. See 20 C.F.R. §§ 404.1594(f).
Steps two through eight in Title II claims mirror steps one through seven in Title XVI. See 20 C.F.R.
§§ 404.1594(f), 416.994(b). Title II, unlike Title XVI, has one addition step to begin the analysis:
namely whether the individual is engaging in substantial gainful activity. If the answer was yes, the
individual’s disability has ended. If no, the analysis continues through the following steps.
Step two of Title II (step one of Title XVI) is an examination of whether the
individual had an impairment or combination of impairments which meets or equals the severity of
a listed impairment. If the answer was yes, disability continues. Step three (step two of Title XVI)
is an inquiry as to whether there had been medical improvement. Step four (step three of Title XVI)
is an examination whether the medical improvement is related to the individual’s ability to perform
work. Step five (step four of Title XVI) is an analysis conducted if there has been no medical
improvement or the medical improvement is not related to the individual’s ability to perform work.
Step six (step five of Title XVI) is a determination whether the individual’s current impairments are

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severe. If there is no severe impairment, the individual is not disabled. Step seven (step six of Title
XVI) is an assessment of the claimant’s “ability to do substantial gainful activity” in accordance with
20 C.F.R. §§ 404.1560, 416.960. That is, the ALJ determines the individual’s residual functional
capacity (RFC) based on all her current impairments and considers whether she can perform past
relevant work. If she can perform such work, she is not disabled. Finally step eight (step seven of
Title XVI) is an administrative finding whether the individual can perform other work in light of her
age, education, work experience and RFC. If she is capable of performing other work, she is not
disabled. 20 C.F.R. §§ 404.1594(f), 416.994(b); see also Hagans v. Comm’r of Soc. Sec., 694 F.3d
287, 307–08 (3d Cir. 2012); Delph v. Astrue, 538 F.3d 940, 945–46 (8th Cir. 2008).
The ALJ began his discussion by finding that the administrative decision dated
November 29, 2005, was the most recent favorable decision that Plaintiff was disabled. It was “the
‘comparison point decision’ or CPD.” (PageID.38.) At the time of the CPD, Plaintiff had the
medically determinable impairment of asthma that was severe enough to meet the requirements of
Section 3.03B of the Listing of Impairments (“Listings”). (PageID.38.) Continuing with the
analysis, the ALJ found that Plaintiff had never engaged in substantial gainful activity, including the
period since July 1, 2012, the date her disability ended. (PageID.38.) The ALJ next found that the
medical evidence established that as of July 1, 2012, Plaintiff had the medically determinable
impairments of: (1) asthma; (2) migraine headaches (cervicalgia); (3) status-post left shoulder SLAP
lesion surgery [January 2014] with left-sided neck pain; (4) degenerative disc disease with low back
pain; (5) depression; (6) anxiety; and (7) opioid dependence [Vicodin, Dilaudid]. (PageID.39.) The
ALJ determined these were Plaintiff’s severe impairments. (PageID.39.) Next, the ALJ found that
since July 1, 2012, these impairments did not meet or medically equal the severity of any listed
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impairment, including Listings 1.02, 1.04, 1.08, 3.02, 3.03, 12.04, and 12.06. (PageID.39.) The ALJ
continued by finding that medical improvement occurred as of July 1, 2012, and that this
improvement was related to work because as of that date, Plaintiff no longer met or medically
equaled the Listing that was met at the time of the CPD. (PageID.39.) The ALJ next determined that
Plaintiff continued to have the above severe impairments on and after July 1, 2012. (PageID.40.)
At the next step, the ALJ found that as of her medical improvement date, Plaintiff retained the RFC
based on all the impairments:
to perform a range of light work as defined in 20 CFR 404.1567(b)
and 416.967(b) of the Regulations. She must avoid concentrated
exposure to fumes, odors, dusts, gases and poor ventilation. With the
left upper (non-dominant) extremity, the claimant can frequently
push, pull, and reach overhead. Claimant is limited to performing
simple work with only occasional public contact and performing no
fast-paced work.
(PageID.40.) With that in mind, the ALJ determined that Plaintiff had no past relevant work, but
that beginning on her medical improvement date, Plaintiff was able to perform a significant number
of jobs. (PageID.45–46.) The ALJ relied on the testimony of a vocational expert in doing so. See
Richardson, 735 F.2d at 964. The expert testified that Plaintiff could perform the following work:
office helper (5,200 Michigan jobs and 67,000 national jobs), mail sorter (2,800 Michigan jobs and
35,000 national jobs) and inspector (2,000 Michigan jobs and 18,000 national jobs).
(PageID.89–90.) Based on this record, the ALJ found that since July 1, 2012, Plaintiff was capable
of making a successful adjustment to work that exists in significant numbers in the national
economy. (PageID.46.)

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Accordingly, the ALJ entered a decision finding that Plaintiff’s disability ended on
July 1, 2012, and concluding that she remained not disabled through the date of the decision.
(PageID.46–47.)
DISCUSSION
1.

Substantial Evidence Supports the ALJ’s Medical Improvement
Determination.

Plaintiff first challenges the ALJ’s determination that she experienced medical
improvement beginning July 1, 2012. “Medical improvement” is defined in relevant part as follows:
Medical improvement is any decrease in the medical severity of your
impairment(s) which was present at the time of the most recent
favorable medical decision that you were disabled or continued to be
disabled. A determination that there has been a decrease in medical
severity must be based on changes (improvement) in the symptoms,
signs and/or laboratory findings associated with your impairment(s).
20 C.F.R. §§ 404.1594(b)(1) and 416.994(b)(1). Plaintiff contends the ALJ’s determination is faulty
because he chose “a date for the cessation of this Plaintiff’s benefits which does not coincide with
any particular medical record.” (PageID.1201.) Plaintiff cites to Mueller v. Comm’r of Soc. Sec.,
No. 1:09-CV-695, 2010 WL 3475494, at *5 (W.D. Mich. Aug. 10, 2010), report and
recommendation adopted, No. 1:09-CV-695, 2010 WL 3475436 (W.D. Mich. Sept. 2, 2010) in
support of her argument that the ALJ picked an arbitrary date to terminate benefits. In Mueller, the
Magistrate Judge held that the ALJ’s finding of medical improvement on a specific date “appears
to be an arbitrary date . . . not related to any particular occurrence or examination.” Id. As the Sixth
Circuit has stated, and this Court has recognized, however, no “smoking gun medical documents”
from a specific date are required to uphold an ALJ’s decision that medical improvement has
occurred. White v. Comm’r of Soc. Sec., 572 F.3d 272, 285 (6th Cir. 2009). Rather, “the ALJ’s
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determination as to the date on which a claimant’s disability ended must simply be ‘not so wholly
arbitrary so as to carry the ALJ’s decision outside the zone of choice that the ALJ possesses in
rendering disability decisions.’” Bronsink ex rel. Lovely v. Comm’r of Soc. Sec., No. 1:10–cv–458,
2011 WL 4579603, at *14 (W.D. Mich. Sept. 15, 2011) (quoting White, 572 F.3d at 285).
There is no presumption of continuing disability. See Kennedy v. Astrue, 247
F. App’x 761, 764 (6th Cir. 2007) (citing Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284,
286–87 n.1 (6th Cir. 1994)). Nevertheless, the burden of proof to establish that a claimant has
experienced a medical improvement which renders her capable of performing substantial gainful
activity lies with the Commissioner. See id. at 764–65; Couch v. Comm’r of Soc. Sec., 2012 WL
394878, at *10 (S.D. Ohio, Feb. 7, 2012). In sum, an ALJ must “build an accurate and logical bridge
between the evidence and the result.” York v. Massanari, 155 F. Supp. 2d 973, 980 (N.D. Ill. 2001).
The ALJ built a sufficient bridge here. As the ALJ indicated, state agency physicians
found that Plaintiff no longer met Listing 3.03B. (PageID.39.) Aside from incorrectly claiming that
the ALJ could not rely on these opinions because they were not dated July 1, 2012, Plaintiff does not
argue that ALJ could not rely on their opinions at this step. Indeed, “Social Security regulations
recognize that opinions from non-examining state agency consultants may be entitled to significant
weight, because these individuals are ‘highly qualified’ and are ‘experts in Social Security disability
evaluation.’” Cobb v. Comm’r of Soc. Sec., No. 1:12-cv-2219, 2013 WL 5467172, at *5 (N.D. Ohio
Sept. 30, 2013) (quoting 20 C.F.R. §§ 404.1527(e)(2)(I), 416.927(e)(2)(I)); see also Barker v.
Shalala, 40 F.3d 789, 794 (6th Cir. 1994). If anything, these opinions support a determination that
Plaintiff’s disability ended at an earlier date. For example, on April 18, 2012, Dr. Glen Douglass
indicated that Plaintiff had undergone medical improvement. (PageID.99.) In support, the doctor

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depended upon a normal pulmonary function study dated April 13, 2011,1 as well as several clear
lung exams dated September 12, 2011, November 16, 2011, and January 5, 2012. (PageID.99.)
Dr. Douglass gave a similar justification in determining that Plaintiff was capable of performing light
work. (PageID.565–572.) Dr. Saadat Abbasi also relied on these records in rendering his September
2012 opinion.

(PageID.696–697.)

The ALJ gave both these opinions significant weight.

(PageID.44.) Nevertheless, it appears the ALJ gave Plaintiff the benefit of the doubt and found a
later improvement date of July 1, 2012, a date near Dr. Thomas Spahn’s consultative examination
which found that though Plaintiff had strong depression and high anxiety, she was reasonably
friendly and had an appropriate affect to her mood. (PageID.576.) She had a GAF score of 60,
indicating only “[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic
attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends,
conflicts with peers or co-workers.)”.2 A.M.. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL
MANUAL OF MENTAL DISORDERS 472–73 (4th ed., Text Revision 2000) (PageID.578.). Dr. William
Schirado used this examination in arriving at his conclusions regarding Plaintiff’s mental
impairments. (PageID.597.) The ALJ gave significant weight to this opinion. (PageID.44.) In sum,
substantial evidence supports the ALJ’s medical improvement determination, and the ALJ’s reliance
on these medical opinions indicates that his decision was not “wholly arbitrary.” White, 572 F.3d
at 285. Accordingly, this claim of error is rejected.

1

Contrary to Plaintiff’s assertion, this study is in the record. (PageID.620).

2

Plaintiff questions the relevance of this examination in finding medical improvement related to her asthma.
As the examiner found, however, Plaintiff’s anxiety aggravates her asthma. (PageID.577.)

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2.

Substantial Evidence Supports the ALJ’s Determination that Plaintiff
No Longer Met a Listed Impairment.

The Listing of Impairments, detailed in 20 C.F.R. Part 404, Subpart P, Appendix 1,
identifies various impairments which, if present to the severity detailed therein, result in a finding
that the claimant is disabled. In a claim similar to that raised above, Plaintiff asserts that she
currently satisfies the requirements of Listing 3.03B. (PageID.1202–1203.) That Listing provides
as follows:
3.03

Asthma. With:
B.

Attacks (as defined in 3.00C), in spite of prescribed treatment and requiring
physician intervention, occurring at least once every 2 months or at least six
times a year. Each in-patient hospitalization for longer than 24 hours for
control of asthma counts as two attacks, and an evaluation period of at least
12 consecutive months must be used to determine the frequency of attacks.

20 C.F.R. Pt. 404, Subpt. P, App.1 § 3.03. Under Section 3.00C, “attacks” of asthma are defined
as:
[P]rolonged symptomatic episodes lasting one or more days and
requiring intensive treatment, such as intravenous bronchodilator or
antibiotic administration or prolonged inhalational bronchodilator
therapy in a hospital, emergency room or equivalent setting. Hospital
admissions are defined as inpatient hospitalizations for longer than 24
hours. The medical evidence must also include information
documenting adherence to a prescribed regimen of treatment as well
as a description of physical signs. For asthma, the medical evidence
should include spirometric results obtained between attacks that
document the presence of baseline airflow obstruction.
Id. at § 3.00C. The ALJ found that Plaintiff did not meet Listing 3.03 because “neither the
pulmonary function tests nor the frequency of emergency department visits establish listing-level
severity at any time since July 1, 2012, including the period from March 7, 2013 and March 24, 2014
when there were five emergency department visits (Exhibits 24F through 28F).” (PageID.39.)

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Plaintiff bears the burden to demonstrate that she satisfies the requirements of a listed
impairment. See Kirby v. Comm’r of Soc. Sec., 2002 WL 1315617 at *1 (6th Cir., June 14, 2002).
An impairment satisfies a listing, however, “only when it manifests the specific findings described
in all of the medical criteria for that particular impairment.” Lambert v. Comm’r of Soc. Sec., 2013
WL 5375298 at *8 (W.D. Mich., Sept. 25, 2013) (citing 20 C.F.R. §§ 404.1525(d) and 416.925(d)).
Plaintiff argues she satisfies this listing by pointing to six treatment records dated July 30, 2013,
October 14, 2013, December 24, 2013, January 5, 2014, January 20, 2014, and March 24, 2014.3
(PageID.1203.) She claims that “the number of her visits for emergency treatment demonstrated that
she continued to meet the requirements of the Listing.” (PageID.1228.) But the frequency of attacks
is only a part of the Listing’s requirements. The attacks must also satisfy the severity requirement
as found in Section 3.00C. Plaintiff’s brief and reply brief are entirely silent on this point, and as
laid out below, it does not appear these records support Plaintiff’s case.
On July 30, 2013, Plaintiff visited urgent care complaining of shortness of breath and
cough for the prior three days. (PageID.973.) On exam, she had normal pulmonary effort, but with
wheezes. (PageID.973.) She was given oral medication and medication via a nebulizer and was
discharged the same day in improved condition. (PageID.974.) On October 14, 2013, Plaintiff again
visited urgent care, complaining of sore throat, cough, and congestion. (PageID.979.) She was given
a chest x-ray, and treated with inhaled medication via a nebulizer. She was discharged the same day

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The Court notes that Plaintiff’s brief does not properly reference the record as required by
Administrative Order No. 16-MS-017, effective March 7, 2016, available at
http://www.miwd.uscourts.gov/referencing-court-record-pageid-cite-form. Plaintiff’s counsel is advised that future
filings which fail to follow the Court’s briefing requirements may be stricken. Moreover, it appears the dates provided
by Plaintiff do not correspond to the records she references. As such, the Court will examine those records and dates
referenced by the Commissioner. Importantly, Plaintiff’s reply brief does not disagree that these dates and records are
those she intended to reference. (PageID.1229) (“Defendant’s Brief very well may be correct regarding some of its
statements about the pagination and dates.”).

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in improved condition with prescribed medications, including an antibiotic. (PageID.979.) On
December 24, 2013, Plaintiff visited Mercy Health Urgent Care complaining of nausea, asthma,
sinus pressure, and migraines. (PageID.1106–1107.) On exam she was found to be breathing
without difficulty, though there was audible wheezing noted. (PageID.1109, 1128.) She was given
medication through a nebulizer as well as fluids through an IV. (PageID.1128.) She was discharged
the same day with a prescription for an antibiotic. (PageID.1128.) On January 5, 2014, Plaintiff
again visited Mercy Health Urgent Care. She complained of cough, shortness of breath, wheezing,
and rib pain. (PageID.1068.) She was treated with an inhaler and oral medication, told to take her
antibiotics for an additional day, and discharged with instructions to find a primary care physician.
(PageID.1074–1075.) On January 20, 2014, Plaintiff went to urgent care complaining of bumps in
her mouth, cough, nose bleed, and a yeast infection, which she thought was due to her prescribed
antibiotics. (PageID.1034.) She had unlabored breathing. (PageID.1034.) It was noted that she
had recently been on antibiotics for a sinus infection. (PageID.1052.) Plaintiff was not given any
medications during this visit, was counseled on asthma, and discharged the same day.
(PageID.1055.) Finally, on March 24, 2014, Plaintiff visited urgent care complaining of left shoulder
pain, chest and nasal congestion, cough, sore throat, and asthma. (PageID.993.) Plaintiff was
diagnosed with an acute exacerbation of her asthma and treated with a nebulizer. (PageID.999,
1001.)

After treatment, she had greatly improved air movement, but still had wheezing.

(PageID.1011.) Plaintiff was discharged the same day with nonlabored respiration. (PageID.997.)
At bottom, the above records do not appear to demonstrate that Plaintiff received the
intensive treatment or prolonged therapy necessary to satisfy the severity requirement of the above
listing. But even if they did, Plaintiff fails to satisfy another element of the listing. As the

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introduction of the listing makes clear, Plaintiff must suffer from asthma attacks despite prescribed
treatment. 20 C.F.R. Pt. 404, Subpt. P, App.1 § 3.03. Here, Plaintiff did not consistently follow
prescribed care. Indeed, the record demonstrates that Plaintiff’s relationship with her primary care
physician ended because she was not complying with his recommendations and care plan.
(PageID.1084.)

On January 5, 2014, in the middle of the six records she depends upon, it was

noted Plaintiff did not check her peak air flows, and did not take her medication routinely.
(PageID.1084.) Plaintiff accordingly has not demonstrated she meets all the requirements of Listing
3.03B. This claim of error is rejected.
3.

Plaintiff Has Waived Her Remaining Arguments.

Finally, it appears Plaintiff questions the ALJ’s step five determination, contending
that the RFC upon which the hypothetical question to the VE was based is unsupported by
substantial evidence. Plaintiff also argues the ALJ should have adopted the March 4, 2014, opinion
of Dr. John Healey that imposed a five-pound lift restriction and also should have incorporated
limitations due to the side effects of Plaintiff’s medications. (PageID.1203–1204.) These claims
are undeveloped and lack any coherent argument. Accordingly, they have been waived. See
McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997) (“[I]ssues 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 a most skeletal way, leaving the court to . . .
put flesh on its bones.”).
Even if Plaintiff had not waived these arguments, they would fail. Regarding
Dr. Healey’s opinion, the ALJ emphasized the opinions did not seem to indicate Plaintiff would be
permanently disabled. (PageID.45.) A review of the March 4, 2014, opinion indicates the ALJ was

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correct. In that note, Dr. Healey continued a five pound lifting limitation and indicated that there
would be a follow up in six weeks. (PageID.848.) On March 27, however, Dr. Healey signed off on
a physical therapist’s opinion that Plaintiff’s rehabilitation potential was “good.” (PageID.852–853.)
It does not appear Plaintiff treated with Dr. Healey again. Plaintiff’s attempt to transform this
temporary restriction into a permanent restriction based upon the mere fact that the record is silent
regarding further treatment with this physician is unavailing. Consequently, these records do not
satisfy Plaintiff’s burden of demonstrating disability lasting at least twelve months. See Vaughn v.
Comm’r of Soc. Sec., No. 14-CV-12496, 2015 WL 5216165, at *4 (E.D. Mich. Sept. 4, 2015)
(collecting cases). As for Plaintiff’s testimony regarding the side effects of her medications, such
allegations must be supported by objective medical evidence. See Essary v. Comm’r of Soc. Sec., 114
F. App’x 662, 665–66 (6th Cir. 2004) (where claimant testified that she suffered from dizziness and
drowsiness as a result of her medications, the ALJ did not err in finding that she suffered no side
effects where her medical records contain no such reported side effects to her physicians); Farhat
v. Sec’y of Health & Human Servs, No. 91–1925, 1992 WL 174540 at * 3 (6th Cir. July 24, 1992)
(“[claimant’s] allegations of the medication’s side-effects must be supported by objective medical
evidence”). Here, Plaintiff depends only on her testimony in support. (PageID.1203.) The ALJ
considered Plaintiff’s allegations, but found they were not credible. (PageID.43–44.) Plaintiff does
not challenge the ALJ’s credibility analysis. Accordingly, Plaintiff has not demonstrated any error
on this point.
For all the above reasons, this claim of error fails.

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CONCLUSION
In accordance with the Opinion entered this date:
IT IS HEREBY ORDERED that the Commissioner’s decision is AFFIRMED. The
Court further determines that appeal of this matter would not be taken in good faith. See Smith v.
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:

January 13, 2017

/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE

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