Emmorey v. Commissioner of Social Security

Filing 16

OPINION affirming the Commissioner's decision; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, jal)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JACKIE EMMOREY,
Plaintiff,

Hon. Ellen S. Carmody

v.
Case No. 1:16-cv-314
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
_____________________________________/
OPINION
This is an action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C.
§ 405(g), to review a final decision of the Commissioner of Social Security denying Plaintiff’s claim
for Disability Insurance Benefits (DIB) under Title II of the Social Security Act. The parties have
agreed to proceed in this Court for all further proceedings, including an order of final judgment.
(ECF No. 11). Section 405(g) limits the Court to a review of the administrative record and provides
that if the Commissioner’s decision is supported by substantial evidence it shall be conclusive. The
Commissioner has found that Plaintiff is not disabled within the meaning of the Act. For the reasons
stated below, the Court concludes that the Commissioner’s decision is supported by substantial
evidence. Accordingly, the Commissioner’s decision is affirmed.

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STANDARD OF REVIEW
The Court’s jurisdiction is confined to a review of the Commissioner’s decision and
of the record made in the administrative hearing process. See Willbanks v. Sec’y of Health and
Human Services, 847 F.2d 301, 303 (6th Cir. 1988). The scope of judicial review in a social security
case is limited to determining whether the Commissioner applied the proper legal standards in
making her decision and whether there exists in the record substantial evidence supporting that
decision. See Brainard v. Sec’y of Health and Human Services, 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 Dep’t of Health and Human Services, 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 in the record fairly detracts from
its weight. See Richardson v. Sec’y of Health and Human Services, 735 F.2d 962, 963 (6th Cir.
1984). As has been widely recognized, 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

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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 55 years of age on his alleged disability onset date. (PageID.212). He
successfully completed high school and previously worked as a headlight assembler, metal building
assembler, maintenance worker, and die setter. (PageID.104, 228). Plaintiff applied for benefits on
December 9, 2013, alleging that he had been disabled since January 9, 2011, due to illiteracy, bad
back, bone spur on his toe, tendonitis in both elbows, and broken collarbones. (PageID.212-13,
227). Plaintiff’s applications were denied, after which time he requested a hearing before an
Administrative Law Judge (ALJ). (PageID.116-208).
On October 29, 2014, Plaintiff appeared before ALJ Paul Greenberg with testimony
being offered by Plaintiff and a vocational expert. (PageID.70-114). In a written decision dated
February 19, 2015, the ALJ issued a decision finding that Plaintiff was not disabled. (PageID.5965).

The Appeals Council declined to review the ALJ’s determination, rendering it the

Commissioner’s final decision in the matter. (PageID.47-51). Plaintiff subsequently initiated this
appeal pursuant to 42 U.S.C. § 405(g), seeking judicial review of the ALJ’s decision.

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ANALYSIS OF THE 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
his residual functional capacity. See 20 C.F.R. §§ 404.1545, 416.945.
The burden of establishing the right to benefits rests squarely on Plaintiff’s shoulders,
and he can satisfy his burden by demonstrating that his impairments are so severe that he is unable
to perform his previous work, and cannot, considering his age, education, and work experience,
perform any other substantial gainful employment existing in significant numbers in the national
economy. See 42 U.S.C. § 423(d)(2)(A); Cohen, 964 F.2d at 528. While the burden of proof shifts
to the Commissioner at step five, Plaintiff bears the burden of proof through step four of the
procedure, the point at which his residual functioning capacity (RFC) is determined. See Bowen v.

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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 her past relevant work, 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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Yuckert, 482 U.S. 137, 146 n.5 (1987); Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir.
1997) (ALJ determines RFC at step four, at which point claimant bears the burden of proof).
The ALJ determined that Plaintiff suffered from degenerative disc disease, a severe
impairment that whether considered alone or in combination with other impairments, failed to satisfy
the requirements of any impairment identified in the Listing of Impairments detailed in 20 C.F.R.,
Part 404, Subpart P, Appendix 1. (PageID.60-62). With respect to Plaintiff’s residual functional
capacity, the ALJ determined that Plaintiff retained the capacity to perform medium work2 subject
to the following limitations: (1) he can only frequently climb ramps or stairs; (2) he can only
frequently balance, stoop, kneel, crouch, or crawl; and (3) he can only occasionally climb ladders
or scaffolds. (PageID.62). A vocational expert testified that, if limited to the extent reflected in the
ALJ’s RFC determination, Plaintiff could still perform his past relevant work as a headlight
assembler and maintenance worker. (PageID.103-05). The ALJ concluded, therefore, that Plaintiff
was not entitled to disability benefits.

I.

Plaintiff’s Residual Functional Capacity
A claimant’s residual functional capacity (RFC) represents his ability to perform

“work-related physical and mental activities in a work setting on a regular and continuing basis,”
defined as “8 hours a day, for 5 days a week, or an equivalent work schedule.” Social Security
Ruling 96-8P, 1996 WL 374184 at *1 (Social Security Administration, July 2, 1996); see also,
Payne v. Commissioner of Social Security, 402 Fed. Appx. 109, 116 (6th Cir., Nov. 18, 2010). As
noted above, the ALJ concluded that Plaintiff retained the ability to perform a range of medium
2

Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects
weighing up to 25 pounds. 20 C.F.R. § 404.1567(c).

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work. Plaintiff argues that he is entitled to relief because the ALJ’s RFC determination is not
supported by substantial evidence. Specifically, Plaintiff asserts that he is limited to light work. The
scant medical evidence, however, supports the ALJ’s conclusion.
On June 19, 2012, Plaintiff was examined by Physician’s Assistant, Amy Werling.
(PageID.329-32). Plaintiff reported that he was experiencing persistent back pain. (PageID.329).
Straight leg raising was negative and an examination of Plaintiff’s lumbar spine revealed “pain free
active ROM [range of motion] with no limiting factors.” (PageID.331). An examination of
Plaintiff’s lower extremities revealed “normal” strength with no evidence of neurovascular
abnormality. (PageID.331). Plaintiff was prescribed medication and and instructed to perform back
stretching exercises. (PageID.331).
A September 20, 2012, examination revealed “normal range of motion, muscle
strength, and stability in all extremities with no pain on palpation.” (PageID.327). An examination
of Plaintiff’s lumbar spine revealed “no. . .tenderness with “normal mobility and curvature.”
(PageID.327). Plaintiff reported that his “symptoms are relieved by walking.” (PageID.326).
Plaintiff was advised to participate in physical therapy. (PageID.327). A December 17, 2012
examination revealed similar findings. (PageID.322-25).
On June 18, 2013, Plaintiff was examined by Dr. R. Scott Lazzara. (PageID.347-51).
Plaintiff reported that he experiences “chronic back pain.” (PageID.347). Plaintiff reported that he
discontinued working, not because of any impairment, but because “he was having issues with coworkers.” (PageID.347). Plaintiff reported that he now “mostly spends his time working on his
tractor at home.” (PageID.347). Plaintiff reported that he had not participated in physical therapy.
(PageID.347). A musculoskeletal examination revealed:

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There is no evidence of joint laxity, crepitance, or effusion. Grip
strength remains intact. Dexterity is unimpaired. The patient could
pick up a coin, button clothing and open a door. The patient had no
difficulty getting on and off the examination table, mild difficulty
heel and toe walking, mild difficulty squatting, and no difficulty
hopping. There is thoracic kyphosis of 15°. There is lumbar spine
straightening. Straight leg raising is negative.
(PageID.348).
The results of a neurological examination were as follows:
Cranial nerves are intact. Motor strength is normal. Tone is normal.
Sensory is intact to light touch and pinprick. Reflexes are 2+ and
symmetrical. The patient walks with a normal gait without the use of
an assist device.
(PageID.350).
X-rays of Plaintiff’s lumbar spine revealed:
Vertebral height and alignment are satisfactory. Disc spaces are well
maintained. No significant end plate spurring or eburnation can be
identified. I see no abnormalities affecting the posterior elements or
sacroiliac joints. There is minimal calcium deposition along the
walls of the distal abdominal aorta.
(PageID.346).
The doctor concluded his observations as follows:
He did have some mild thoracic kyphosis and did have some
associated lumbar spine straightening with possibly mild facet
arthropathy. Neurologically, he did appear stable as well as having
a stable gait. He did have mild difficulty doing orthopedic
maneuvers mostly because of stiffness in his back. At this point,
continued activity and avoidance of repetitive work would be
indicated. He does complain of tendonitis in both arms but his grip
strength and dexterity were well preserved. There were no findings
of carpal tunnel disease.

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(PageID.350-51).
On March 6, 2014, Plaintiff was examined by Dr. Michael Geoghegan. (PageID.37275). A physical examination revealed the following:
There are no obvious bony deformities. Peripheral pulses are easily
palpated and symmetrical. There is no edema. There are no
paravertebral muscle spasms noted. Range of motion is intact and
full throughout. Straight leg raise is negative bilaterally. There is no
erythema or effusion of any joint. Grip and pincher strength is
decreased bilaterally with 80% remaining as tested grossly today.
The hands have full dexterity bilaterally.
(PageID.373).
A neurological examination revealed the following:
Strength is 5/5 throughout. Grip strength is noted above. Motor and
sensory function remains intact. Romberg’s test is negative.3 Cranial
nerves II through XII are grossly intact. The patient is awake, alert
and oriented to person, place and time and affect is calm and
composed. Reflexes are present and symmetrical. No disorientation
is noted.
(PageID.374).
The ALJ’s RFC finding is supported by substantial evidence. The medical evidence
does not reveal that Plaintiff suffers from an impairment or experiences symptoms which are
inconsistent with his RFC. Plaintiff’s argument that the ALJ’s RFC must mimic or be based upon
the findings of Plaintiff’s care providers is contrary to Sixth Circuit authority. See, e.g., Rudd v.
Comm’r of Soc. Sec., 531 F. App’x 719, 728 (6th Cir. 2013) (“the Commissioner has final
responsibility for determining an individual’s RFC. . .and to require the ALJ to base her RFC finding

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Romberg test is a neurological test designed to detect poor balance. See Romberg Test, available at
http://www.mult-sclerosis.org/RombergTest.html (last visited on January 10, 2017). The patient stands with her feet
together and eyes closed. The examiner will then push her slightly to determine whether she is able to compensate and
regain her posture. Id.

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on a physician’s opinion ‘would, in effect, confer upon the treating source the authority to make the
determination or decision about whether an individual is under a disability, and thus would be an
abdication of the Commissioner’s statutory responsibility to determine whether an individual is
disabled’”); Coldiron v. Comm’r of Soc. Sec., 391 F. App’x 435, 439 (6th Cir. 2010) (“The Social
Security Act instructs that the ALJ not a physician ultimately determines a claimant’s RFC.”). This
argument is, therefore, rejected.

II.

Plaintiff’s Credibility
At the administrative hearing, Plaintiff testified that he was more limited than the

ALJ recognized. Specifically, Plaintiff testified that he experiences constant throbbing pain in his
elbows. (PageID.91). Plaintiff reported that he could only walk short distances before his back
would begin hurting. (PageID.94). Plaintiff testified that he has to lay down and rest his back every
afternoon for 30-45 minutes. (PageID.95). The ALJ discounted Plaintiff’s subjective allegations.
(PageID.63-64). Plaintiff asserts that he is entitled to relief because the ALJ’s rationale for
discounting his allegations is not supported by substantial evidence.
As the Sixth Circuit has long recognized, “pain alone, if the result of a medical
impairment, may be severe enough to constitute disability.” King v. Heckler, 742 F.2d 968, 974 (6th
Cir. 1984) (emphasis added); see also, Grecol v. Halter, 46 Fed. Appx. 773, 775 (6th Cir., Aug. 29,
2002) (same). As the relevant Social Security regulations make clear, however, a claimant’s
“statements about [his] pain or other symptoms will not alone establish that [he is] disabled.” 20
C.F.R. § 404.1529(a); see also, Walters v. Commissioner of Social Security, 127 F.3d 525, 531 (6th
Cir. 1997) (quoting 20 C.F.R. § 404.1529(a)) Hash v. Commissioner of Social Security, 309 Fed.

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Appx. 981, 989 (6th Cir., Feb. 10, 2009). Instead, as the Sixth Circuit has established, a claimant’s
assertions of disabling pain and limitation are evaluated pursuant to the following standard:
First, we examine whether there is objective medical evidence of an
underlying medical condition. If there is, we then examine: (1)
whether objective medical evidence confirms the severity of the
alleged pain arising from the condition; or (2) whether the objectively
established medical condition is of such a severity that it can
reasonably be expected to produce the alleged disabling pain.
Walters, 127 F.3d at 531 (citations omitted). This standard is often referred to as the Duncan
standard. See Workman v. Commissioner of Social Security, 105 Fed. Appx. 794, 801 (6th Cir., July
29, 2004).
Accordingly, as the Sixth Circuit has repeatedly held, “subjective complaints may
support a finding of disability only where objective medical evidence confirms the severity of the
alleged symptoms.” Id. (citing Blankenship v. Bowen, 874 F.2d 1116, 1123 (6th Cir. 1989)).
However, where the objective medical evidence fails to confirm the severity of a claimant’s
subjective allegations, the ALJ “has the power and discretion to weigh all of the evidence and to
resolve the significant conflicts in the administrative record.” Workman, 105 Fed. Appx. at 801
(citing Walters, 127 F.3d at 531).
In this respect, it is recognized that the ALJ’s credibility assessment “must be
accorded great weight and deference.” Workman, 105 Fed. Appx. at 801 (citing Walters, 127 F.3d
at 531); see also, Heston v. Commissioner of Social Security, 245 F.3d 528, 536 (6th Cir. 2001) (“[i]t
is for the [Commissioner] and his examiner, as the fact-finders, to pass upon the credibility of the
witnesses and weigh and evaluate their testimony”). It is not for this Court to reevaluate such
evidence anew, and so long as the ALJ’s determination is supported by substantial evidence, it must
stand. The ALJ found Plaintiff’s subjective allegations to not be fully credible, a finding that should
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not be lightly disregarded. See Varley v. Sec’y of Health and Human Services, 820 F.2d 777, 780
(6th Cir. 1987). In fact, as the Sixth Circuit recently stated, “[w]e have held that an administrative
law judge’s credibility findings are virtually unchallengeable.” Ritchie v. Commissioner of Social
Security, 540 Fed. Appx. 508, 511 (6th Cir., Oct. 4, 2013) (citation omitted).
In support of his decision to discount Plaintiff’s credibility, the ALJ concluded:
Several factors impair the claimant’s credibility as to the allegedly
disabling severity of his impairments. The claimant inconsistently
has reported he stopped working in January 2011 (his current alleged
onset date) and in June 2012 (Ex. 2E, 4E, 6E). At hearing, he
admitted to working as recently as June 2014, although for only a
short period. The claimant also testified he left his last long-term
employment because of interpersonal problems with other
employees, rather than because of any physical or exertional
limitation. I note the claimant has repeatedly described his back pain
as stable to treating sources (Ex. 1F, 4F, 7F). I further note the
claimant has reported engaging in relatively strenuous activities since
his alleged onset date, including attempts to play golf, mowing his
grass, and working on tractors (Ex. 3F, 4F).
On the subject of the claimant’s mental health allegations, I note he
successfully worked in skilled and semi-skilled jobs for substantial
stretches of time in the past and reported no mental difficulty
performing the work (Ex. 4E, 3F, 5F). Although the claimant has
reported illiteracy or an inability to read or write to some consultative
examiners, he admitted at hearing he has at least a basic ability to
read and do math (Ex. 5F, 6F).
(PageID.63-64).
The ALJ’s observations are supported by and are consistent with the evidence of
record. While Plaintiff has argued that the ALJ could have weighed the evidence differently, the
question is not whether a different interpretation of the evidence would be supported, but instead
whether the ALJ’s assessment is supported by substantial evidence. Because the ALJ’s assessment
is supported by substantial evidence, this argument is rejected.

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III.

The ALJ’s Sequential Analysis
Finally, Plaintiff argues that the ALJ erred at Step V of the sequential evaluation by

improperly relying on the testimony of a vocational expert as to the number of jobs Plaintiff could
perform consistent with his RFC. The ALJ did not make any Step V findings, however, but instead
found Plaintiff not disabled at Step IV of the sequential process on the ground that he could still
perform his past relevant work. Accordingly, this argument is rejected.

CONCLUSION
For the reasons articulated herein, the Court concludes that the ALJ’s decision is
supported by substantial evidence. Accordingly, the Commissioner’s decision is affirmed. A
judgment consistent with this opinion will enter.

Date: January 20, 2017

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

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