Bennett v. Commissioner of Social Security

Filing 18

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KATHY BENNETT,
Plaintiff,

Case No. 1:16-CV-312

v.
HON. ROBERT HOLMES BELL
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) denying Plaintiff’s claim for supplemental security income (SSI) under Title XVI
of the Social Security Act.
STANDARD OF REVIEW
The scope of judicial review in a social security case is limited to determining
whether the Commissioner applied the proper legal standards in making her decision and whether
there exists in the record substantial evidence supporting that decision. See Brainard v. Sec’y of
Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). The Court may not conduct a de novo
review of the case, resolve evidentiary conflicts, or decide questions of credibility. See Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984). It is the Commissioner who is charged with finding the
facts relevant to an application for disability benefits, and her findings are conclusive provided they
are supported by substantial evidence. See 42 U.S.C. § 405(g).

Substantial evidence is more than a scintilla, but less than a preponderance. See
Cohen v. Sec’y of Health & Human Servs., 964 F.2d 524, 528 (6th Cir. 1992) (citations omitted).
It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
See Richardson v. Perales, 402 U.S. 389, 401 (1971); Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir.
1993). In determining the substantiality of the evidence, the Court must consider the evidence on
the record as a whole and take into account whatever 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-two years of age on the date of the ALJ’s decision. (PageID.41,
155.) She completed the ninth grade, and was previously employed as a horticultural worker, hand
packager, and hi-lo operator. (PageID.55, 259.) Plaintiff previously applied for benefits in June
2011. (PageID.44.) After an administrative hearing, ALJ Nicholas Ohanesian issued a written
decision on April 5, 2013, finding Plaintiff was not disabled. (PageID.131–147.) That decision was
affirmed by the Appeals Council on June 26, 2014. (PageID.148–151.) Shortly thereafter, on June
30, 2014, Plaintiff filed another application for SSI benefits, alleging that she had been disabled
since January 1, 2008, due to bipolar disorder, injuries from a motorcycle accident, depression,

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colitis, back problems, and carpal tunnel syndrome. (PageID.155, 229–234.) This application was
denied on September 24, 2014, after which time Plaintiff requested a hearing before an ALJ.
(PageID.172–175.) On December 11, 2015, Plaintiff appeared with her counsel before ALJ Michael
Condon for an administrative hearing at which time both Plaintiff and a vocational expert (VE)
testified. (PageID.62–129.) On January 13, 2016, the ALJ issued his written decision, concluding
that Plaintiff was not disabled. (PageID.41–61.) On March 8, 2016, the Appeals Council declined
to review the ALJ’s decision, making it the Commissioner’s final decision in the matter.
(PageID.32–35.) 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. § 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. § 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).

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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. § 416.920(b));

2.

An individual who does not have a “severe impairment” will not be found “disabled” (20 C.F.R. §
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. § 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. § 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. § 416.920(f)).

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See 20 C.F.R. § 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.
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 five. At step one the ALJ found
that Plaintiff had not engaged in substantial gainful activity since June 30, 2014, her application
date. (PageID.46.) At step two, the ALJ found that Plaintiff suffered from the following severe
impairments: (1) status-post bilateral clavicle fractures, post surgery; (2) left scapular fracture,
status-post surgery; (3) right shoulder AC joint separation, status-post surgery; (4) carpal tunnel
syndrome (CTS); (5) cervical and lumbar spine degenerative changes with cervical radiculopathy;
(6) chronic obstructive pulmonary disease (COPD); (7) history of polysubstance dependence / abuse;
(8) anxiety; (9) mood disorder; and (10) personality disorder. (PageID.46–47.) 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.47–49.) At step four, the ALJ determined Plaintiff retained the RFC based on all the
impairments to perform:
light work as defined in 20 CFR 416.967(b) that is she can lift and/or
carry up to 20 pounds occasionally and up to 10 pounds frequently,
sit for up to six hours total and stand and/or walk for up to four hours
total in an eight-hour workday. She can frequently climb ramps and
stairs, kneel, and crouch, never climb ladders, ropes, or scaffolds or
crawl, but may have unlimited balancing. She can occasionally
push/pull with the right upper extremity. She can frequently handle
bilaterally, but can only rarely (defined as five percent of the
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workday) reach or lift overhead bilaterally. She has no difficulty
reaching and lifting to head level. She can have no exposure to
extreme cold and only occasional exposure to vibration and hazards
including unprotected heights and dangerous moving machinery. She
is limited to doing simple, routine, and repetitive work that involves
making simple work-related decisions and tolerating routine
workplace changes. Finally, she can have occasional contact with the
general public.
(PageID.49.)

Continuing with the fourth step, the ALJ determined that Plaintiff was unable to

perform her past relevant work. (PageID.54–55.) At the fifth step, the ALJ questioned the VE to
determine whether a significant number of jobs exist in the economy that Plaintiff could perform
given her limitations. See Richardson, 735 F.2d at 964. The VE testified that Plaintiff could
perform the following work: inspector (18,000 national positions), office helper (30,000 national
positions), and mail sorter (15,000 national positions). (PageID.120–122.) Based on this record,
the ALJ found that Plaintiff was capable of making a successful adjustment to work that exists in
significant numbers in the national economy. (PageID.56.)
Accordingly, the ALJ concluded that Plaintiff was not disabled from June 30, 2014,
through January 13, 2016, the date of decision. (PageID.56.)
DISCUSSION
1.

The ALJ’s Analysis of Dr. Robert Bruxvoort’s Opinion Complies With
the Treating Physician Rule.

On December 3, 2015, Dr. Robert Bruxvoort, Plaintiff’s treating physician,
completed a one page medical source statement regarding Plaintiff’s limitations. The worksheet
consists of thirteen questions in which the doctor’s obligation was only to fill in a blank, or circle
an answer from a list of several possibilities. (PageID.503.) Among other things, Dr. Bruxvoort
indicated he had been treating Plaintiff since May 2014 with a frequency of examinations of every

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two to three months. Plaintiff was diagnosed with COPD, chronic back pain, anxiety, fibromyalgia,
PTSD, bipolar disorder, and degenerative disc disease. (PageID.503.) He assigned Plaintiff a
prognosis of “fair - poor.” (PageID.503.) Dr. Bruxvoort declined to opine on how often Plaintiff
could sit, stand or walk, as well as how many pounds she was able to lift or carry, and also declined
to opine on how often Plaintiff could perform several postural activities. (PageID.503.) He did
indicate however, that Plaintiff’s pain was of such a severity that it would frequently interfere with
her attention and concentration needed to perform even simple tasks. (PageID.503.) He identified
Plaintiff’s signs and symptoms as substance dependance, anxiety, and depression, and also indicated
that Plaintiff’s chronic pain, anxiety, and PTSD affected her ability to work. (PageID.503.) Finally,
were she to work, Dr. Bruxvoort noted Plaintiff could be expected to miss work more than four days
per month. (PageID.503.) The ALJ assigned only little weight to this opinion. (PageID.53.)
Plaintiff argues the ALJ should have given the opinion controlling weight.2 (PageID.1040.) The
Court disagrees.
By way of background, the treating physician doctrine recognizes that medical
professionals who have a long history of caring for a claimant and her maladies generally possess
significant insight into her medical condition. See Barker v. Shalala, 40 F.3d 789, 794 (6th Cir.
1994). An ALJ must, therefore, give controlling weight to the opinion of a treating source if: (1)
the opinion is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques” and (2) the opinion “is not inconsistent with the other substantial evidence in the case
record.” Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375–76 (6th Cir. 2013) (quoting 20 C.F.R.

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The ALJ also discussed an April 20, 2015, opinion from Dr. Bruxvoort which indicated Plaintiff would need
assistance with certain daily activities. (PageID.54.) Plaintiff makes no mention of this opinion, and therefore the Court
will only discuss the ALJ’s treatment of the doctor’s December 3, 2015, opinion.

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§ 404.1527).
Such deference is appropriate, however, only where the particular opinion “is based
upon sufficient medical data.” Miller v. Sec’y of Health & Human Servs., 1991 WL 229979, at *2
(6th Cir. Nov. 7, 1991) (citing Shavers v. Sec’y of Health & Human Servs., 839 F.2d 232, 235 n.1
(6th Cir. 1987)). The ALJ may reject the opinion of a treating physician where it is unsupported by
the medical record, merely states a conclusion, or is contradicted by substantial medical evidence.
See Cohen, 964 F.2d at 528; Miller, 1991 WL 229979 at *2 (citing Shavers, 839 F.2d at 235 n.1);
Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286–87 (6th Cir. 1994).
If an ALJ accords less than controlling weight to a treating source’s opinion, the ALJ
must “give good reasons” for doing so. Gayheart, 710 F.3d at 376. Such reasons must be
“supported by the evidence in the case record, and must be sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating source’s medical opinion and
the reasons for that weight.” Id. This requirement “ensures that the ALJ applies the treating
physician rule and permits meaningful review of the ALJ’s application of the rule.” Id. (quoting
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004)). Simply stating that the
physician’s opinions “are not well-supported by any objective findings and are inconsistent with
other credible evidence” is, without more, too “ambiguous” to permit meaningful review of the
ALJ’s assessment. Id. at 376–77.
The ALJ explained he was assigning Dr. Bruxvoort’s opinion only little weight
because the doctor “provided no explanation for his conclusions, especially the number of days off
work. This is particularly problematic given the lack of any physical limitations offered by the
doctor, not to mention that the signs and symptoms limiting the claimant were ‘Substance

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dependence,’ [‘]Anxiety,’ and ‘Depression,’ but nothing else.” (PageID.53.) The ALJ has provided
a good reason for assigning only little weight here. As relevant regulations point out, “[t]he more
a medical source presents relevant evidence to support an opinion, particularly medical signs and
laboratory findings, the more weight [the Commissioner] will give that opinion. The better an
explanation a source provides for an opinion, the more weight [The Commissioner] will give that
opinion.” 20 C.F.R. 416.927(c)(3). Here, as the ALJ noted, the opinion lacks any accompanying
explanation. Plaintiff argues, however, that the ALJ’s focus was too narrow, and claims the overall
record is consistent with the opinion. (PageID.1042–1044.) Therefore, Plaintiff contends, if the
opinion “is not inconsistent with other substantial evidence, then the issue, of whether the ALJ’s
opinion is supported by substantial evidence, is moot.” (PageID.1041–42.)
Plaintiff’s argument is without merit. In confronting a similar argument where the
plaintiff argued an opinion was not inconsistent with the record, the Sixth Circuit indicated that “it
is nearly impossible to analyze whether that is true because . . . [the] analysis is not accompanied
by any explanation.” Hernandez v. Comm’r of Soc. Sec., 644 F. App’x 468, 474 (6th Cir. 2016).
The opinion here suffers from a similar flaw. It is, as Plaintiff appears to acknowledge, completely
unaccompanied by any explanation. The majority of the opinion consists of little more than
impairments or diagnoses that Plaintiff suffers from. A meaningful explanation here is crucial
because, as the Sixth Circuit has observed, “the mere diagnosis” of a condition “says nothing about
the severity of the condition.” Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988); see also McKenzie
v. Comm’r of Soc. Sec., No. 99–3400, 2000 WL 687680 at *5 (6th Cir. May 19, 2000) (“the mere
diagnosis of an impairment does not render an individual disabled nor does it reveal anything about
the limitations, if any, it imposes upon an individual”). As the Hernandez court further noted, the

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Sixth Circuit has “previously declined to give significant weight to rudimentary indications that lack
an accompanying explanation.” Hernandez, 644 F. App’x at 474 (citing Keeton v. Comm’r of Soc.
Sec., 583 F. App’x 515, 524 (6th Cir. 2014). Dr. Bruxvoort’s opinion is similarly flawed, and
accordingly amounts to only “weak evidence at best.” Mason v. Shalala, 994 F.2d 1058, 1065 (3d
Cir. 1993). Plaintiff’s argument is rejected.
2.

The ALJ Was Not Required to Give More Weight to Dr. Bruxvoort’s
Opinion than to the Opinion of a Nonexamining Agency Consultant.

In his decision, ALJ Condon indicated he was giving significant weight to the opinion
of Dr. Ron Marshall, Ph.D., a state agency consultant who opined that the mental limitations from
the prior opinion should be adopted. In assigning it significant weight, the ALJ noted there was no
new and material evidence demonstrating a significant change in Plaintiff’s mental functioning since
ALJ Ohanesian’s earlier decision. He also noted that Plaintiff sought little mental health treatment
since the prior decision, and that the majority of her mental status examinations have been normal.
(PageID.53.)
Though not raised in her statement of errors, Plaintiff contends that the ALJ erred in
assigning greater weight to Dr. Marshall’s opinion than to Dr. Bruxvoort’s because the “ALJ
generally should assign more weight to the opinion of a source who has examined the claimant than
to an opinion of a source who has not examined the claimant.” (PageID.1045.) Plaintiff is correct
that“[a]s a general matter, an opinion from a medical source who has examined a claimant is given
more weight than that from a source who has not performed an examination.” Gayheart, 710 F.3d
at 375. But it is by no means as rigid a rule as Plaintiff apparently would prefer. Rather, an
examining relationship is only one of the factors an ALJ is to consider when weighing medical
opinions. See 20 C.F.R. § 416.927(c); see also McClean v. Colvin, No. 3:11–cv–236, 2013 WL
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4507807, at *8 (M.D. Tenn. Aug. 23, 2013) (“[R]espective examining and non-examining status [is]
only one of several relevant factors [.]”); Brooks v. Comm’r of Soc. Sec., 531 F. App’x 636, 642 (6th
Cir. 2013) (“[I]n appropriate circumstances, opinions from State agency medical and psychological
consultants . . . may be entitled to greater weight than the opinions of treating or examining
sources.”). Consistency is another important factor: “Generally, the more consistent an opinion is
with the record as a whole, the more weight we will give to that opinion.” 20 C.F.R. §
404.1527(c)(4).
The ALJ is responsible for weighing conflicting medical opinions. See Buxton v.
Halter, 246 F.3d 762, 775 (6th Cir. 2001); see also Reynolds v. Comm’r of Soc. Sec., 424 F. App’x
411, 414 (6th Cir. 2011) (“This court reviews the entire administrative record, but does not
reconsider facts, re-weigh the evidence, resolve conflicts in evidence, decide questions of credibility,
or substitute its judgment for that of the ALJ.”). Here, it is patent the ALJ understood the agency
consultant had not examined Plaintiff, but nonetheless noted that the opinion was consistent with
the record and was based upon the consultant’s detailed knowledge of agency regulations.
(PageID.53.) The ALJ accordingly properly evaluated the medical opinions under 20 C.F.R. §
416.927(c).
Finally, Plaintiff contends that the ALJ erred by failing to follow the VE’s testimony
at the administrative hearing regarding Dr. Bruxvoort’s opinion. (PageID.1046.) In response to a
hypothetical incorporating the doctor’s opinion that Plaintiff could be expected to miss more than
four days of work each month, the VE testified that such a limitation would preclude all work.
(PageID.123.) The ALJ was not required to adopt this testimony. In his hypothetical questions to
a VE, an ALJ is required to incorporate only those limitations which he finds credible and supported

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by the record. See Casey v. Sec'y of Health & Human Servs., 14 987 F.2d 1230, 1235 (6th Cir.
1993). As discussed above, the ALJ gave Dr. Bruxvoort’s opinion little weight because it lacked
any meaningful explanation, and the Court has found the ALJ did not err in doing so. Thus, the ALJ
was not bound by the VE’s response to a hypothetical question including limitations he found were
not credible and were unsupported by the record. Accordingly, Plaintiff’s claim of error is rejected.
CONCLUSION
For the reasons set forth herein, the Commissioner’s decision is supported by
substantial evidence and therefore will be AFFIRMED.
A separate judgment shall issue.

Dated: December 30, 2016

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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