Kent 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

PHILIP KENT,
Plaintiff,

Case No. 1:16-CV-372

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 by the Commissioner of the Social Security Administration
(Commissioner) denying Plaintiff’s claim for disability insurance benefits (DIB) under Title II 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. The Commissioner has found that Plaintiff is not disabled within the meaning of the
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 forty-one years of age on the date of the ALJ’s decision. (PageID.35,
62.) He previously obtained a high school education and had been employed as a welder/grinder.
(PageID.80.) Plaintiff applied for benefits on July 1, 2013, alleging that he had been disabled since
June 11, 2008, due to a low back injury / herniated lumbar disc with radiculopathy, headaches, and
TMJ. (PageID.91, 154–155.) This application was denied on October 1, 2013, after which time
Plaintiff requested a hearing before an ALJ. (PageID.104–116.) Shortly before the hearing,
Plaintiff’s counsel authored a letter amending the onset date to October 31, 2012. (PageID.164.)
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On September 3, 2014, Plaintiff appeared with his counsel before ALJ Nicholas Ohanesian for an
administrative hearing, at which time both Plaintiff and a vocational expert (VE) testified.
(PageID.54–89.) On November 14, 2014, the ALJ issued his written decision, concluding that
Plaintiff was not disabled. (PageID.35–52.) On February 24, 2016, the Appeals Council declined
to review the ALJ’s decision, making it the Commissioner’s final decision in the matter.
(PageID.28–32.) Plaintiff subsequently initiated this action under 42 U.S.C. § 405(g).
Plaintiff’s insured status expired on December 31, 2013. (PageID.91.) Accordingly,
to be eligible for DIB under Title II of the Social Security Act, Plaintiff must establish that he
became disabled prior to the expiration of his insured status. See 42 U.S.C. § 423; Moon v. Sullivan,
923 F.2d 1175, 1182 (6th Cir. 1990).
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).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). The regulations
also provide that if a claimant suffers from a nonexertional impairment as well as an exertional

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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));

2.

An individual who does not have a “severe impairment” will not be found “disabled” (20 C.F.R. §
404.1520(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));

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));

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)).

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impairment, both are considered in determining the claimant’s residual functional capacity (RFC).
See 20 C.F.R. § 404.1545.
Plaintiff has the burden of proving the existence and severity of limitations caused
by his impairments and that he 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 during the period between his alleged
disability onset date and his date last insured.2 (PageID.40.) At step two, the ALJ found that
Plaintiff suffered from the severe impairments of: (1) degenerative disc disease of the lumbar spine
with stenosis and radiculopathy; (2) migraine headaches; and (3) temporomandibular joint disorder
(TMJ). (PageID.40–41.) 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.41.) At step four, the ALJ determined
Plaintiff retained the RFC based on all the impairments to perform:
sedentary work as defined in 20 CFR 404.1567(a). The claimant can
occasionally climb ramps and stairs, but can never climb ladders,
ropes or scaffolds. He can occasionally balance, stoop, kneel, crouch
and crawl. He is limited to frequent exposure to extreme cold,
extreme heat, humidity, hazards, lighting and noise above that of a
normal office environment. Further, he must be provided the
opportunity to change positions from standing to sitting or vice versa
for one to two minutes every fifteen minutes.

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The ALJ noted that although Plaintiff’s counsel had amended the onset date to a later date, the letter was not
signed by Plaintiff, and accordingly the ALJ considered the application from the original onset date of June 11, 2008.
(PageID.38.) Plaintiff does not allege this was in error.

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(PageID.42.)

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

perform any of his past relevant work. (PageID.46.) 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 his limitations. See Richardson, 735 F.2d at 964. The VE testified that Plaintiff could
perform work in the following representative jobs: packager sorter (3,000 positions), cashier (4,000
positions), and assembler (3,500 positions). (PageID.80–84.) 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.48.)
Accordingly, the ALJ concluded that Plaintiff was not disabled from June 11, 2008,
through December 31, 2013, the date last insured. (PageID.48.)
DISCUSSION
On May 28, 2013, Dr. Shawn Ruth, Plaintiff’s treating physician, completed an
assessment of Plaintiff’s ability to do physical work-related activities. (PageID.285–287.) When
asked how many minutes or hours Plaintiff could sit without interruption, Dr. Ruth wrote “never.”
When asked how long Plaintiff could stand or walk without interruption, Dr. Ruth wrote
“occasionally.” Dr. Ruth provided the same answer when asked for the total amount of hours in an
eight-hour workday Plaintiff could perform those activities. (PageID.285.) Dr. Ruth further
indicated Plaintiff would need a sit/stand option, but would be in pain in either position.
(PageID.285.) Plaintiff could never lift or carry fifty pound weights, and could only rarely lift lesser
pound weights, including only five pound weights. (PageID.285.) Additionally Plaintiff could
never bend or stoop, squat or kneel, or climb ramps or stairs. (PageID.285.) Plaintiff could only
occasionally crouch or crawl. (PageID.285.) Plaintiff experienced headaches, and when asked for
positive test results and objective signs, the doctor checked a box next to “MRI.” (PageID.286.)
Dr. Ruth indicated that, when experiencing a headache, Plaintiff would need to rest until the
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symptoms were gone, and that this limitation went back to 2010. (PageID.286.) Dr. Ruth further
opined that Plaintiff’s pain would constantly interfere with his attention and concentration, and he
would need to take unscheduled breaks each day lasting between thirty and sixty minutes.
(PageID.286–287.) Finally, Dr. Ruth indicated that Plaintiff would have good days and bad days,
and were he to work, he could be expected to miss more than four days of work each month.
(PageID.287.) On August 11, 2014, after Plaintiff’s date last insured, Dr. Ruth indicated these
limitations were still valid. (PageID.240.) The ALJ assigned the opinion only limited weight.
(PageID.45.) Plaintiff’s sole claim of error is that the ALJ failed to provide good reasons, under the
treating physician doctrine, for assigning the opinion less than controlling weight.3 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 his maladies generally possess
significant insight into his 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.
§ 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

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The Court notes that the ALJ also considered Dr. Ruth’s April 4, 2013, statement that Plaintiff “is unable to
be gainfully employed and should likely go on disability.” (PageID.272.) The ALJ gave the opinion “no weight,” noting
that opinions claiming an individual is disabled are reserved to the Commissioner. (PageID.44.) Plaintiff does not
challenge the ALJ’s consideration of this statement.

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(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 provided the following discussion of Dr. Ruth’s opinion:
Although Dr. Ruth has treated the claimant for a number of years, her
[sic] assessment is not corroborated by the other evidence of record.
In that regard, it is noted that she [sic] cites to the MRI as clinical
support of the claimant’s limitations; however, the review of the
actual MRI report reveals that the claimant’s spinal pathology has
remained stable since 2010 and only minimal degenerative findings
(Exhibit 3F/26), which surgeons have noted not to be of surgical
significance (Exhibit 2F/1-2). Further, EMGs have been negative for
radiculopathy (Exhibits 2F/3-6, 3F/31-34). The claimant has also
admitted to Dr. Ruth that he was able to complete his activities of
daily living (Exhibit 9F/2-3), which undoubtedly exceed the
restrictions, specifically the no sitting and only occasional walking /
standing, she [sic] assessed. Thus, based on the foregoing, her [sic]
assessments are provided only limited weight.
(PageID.45.)
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The Court finds the ALJ has provided good reasons, supported by substantial
evidence, for assigning limited weight to the opinion. Dr. Ruth’s opinion, contained in a three page
worksheet, is remarkably lacking for any explanation for the severe limitations that were provided.
The sole reference to any objective data was to an MRI, but as the ALJ noted, the MRI contained
only mild findings, and the record contained no recommendations for surgery. Other examinations
returned normal results, such as an EMG test showing no radiculopathy. Finally, Plaintiff’s
activities, including watching television, preparing simple meals, driving a car for less than twenty
minutes, and playing cards and games with friends is inconsistent with the severity of Dr. Ruth’s
opinion. (PageID.179–180.) None of Plaintiff’s arguments to the contrary is persuasive.
Plaintiff first questions the ALJ’s reference to the November 12, 2012, MRI,
admitting that although the MRI demonstrates Plaintiff’s condition has remained stable when
compared to imaging from 2011 and 2010, the ALJ ignores the substance of the MRI, and
mistakenly references degenerative changes, rather than his spinal stenosis as the cause of his
problems. (PageID.389–391.) Plaintiff’s lay interpretation of this evidence, however, does nothing
to demonstrate the ALJ’s conclusion was erroneous. He points to no authority or medical record
that would support this assertion. In any event, the MRI’s findings reference Plaintiff’s stenosis
only as mild. (PageID.260.) More importantly, when the MRI was viewed by neurosurgeon Vicente
Gracias, there was “nothing dramatic enough to warrant surgical intervention.” (PageID.230.)
Plaintiff argues that the ALJ’s observation that “surgeons” recommended against surgery was
incorrect. However, as the Commissioner points out, Dr. Gracias noted that Plaintiff had also been
seen by several other neurosurgeons. (PageID.229.) The record does not indicate that any of those
surgeons found surgery was warranted. Plaintiff also argues that Dr. Gracias’ opinion conflicts with
the opinion of Dr. Kenneth Easton, who did recommend surgery. (PageID.365.) But Dr. Easton’s

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treatment note did not indicate that he recommended surgery, only that he could “potentially”
decompress the L4-L5 and that he could only give a seventy percent chance that the treatment would
work. (PageID.366.) When Plaintiff declined surgery, Dr. Easton indicated he would keep the door
open to future treatment. (PageID.366.) Thus the conflict that Plaintiff alleges is not present. In
any event, even if there was a conflict, substantial evidence would still support the ALJ’s
observation.
Next, Plaintiff argues the ALJ’s statement regarding radiculopathy runs contrary to
his step two determination as well as the caveat contained in the treatment note referenced by the
ALJ. (PageID.392.) The ALJ’s reasoning here could admittedly be more clear. But it appears the
ALJ referenced the December 5, 2012, test merely as one of several other records he found did not
support the severity of Dr. Ruth’s opinion. The finding of a severe impairment at step two is a “de
minimis” hurdle and “says nothing as to its limiting effects.” Simpson v. Comm’r of Soc. Sec., No.
1:13-CV-640, 2014 WL 3845951, at *9 (S.D. Ohio Aug. 5, 2014) (citing Higgs v. Bowen, 880 F.2d
860, 862 (6th Cir. 1988)). Here, it appears the ALJ gave Plaintiff the benefit of the doubt by finding
radiculopathy at step two, but found that Plaintiff’s complaints of this condition were not supported
by the record. The Court finds no error here.
Plaintiff also faults the ALJ for failing to discuss several records, including Dr.
Ruth’s treatment notes. Contrary to this assertion, several of the notes were referenced by the ALJ,
albeit not directly in reference to Dr. Ruth’s opinion or in the manner that Plaintiff would perhaps
have preferred. But in any event, Plaintiff’s burden on appeal is much higher than citing evidence
on which the ALJ could have found a greater level of restriction. He must show that the ALJ’s
factual finding is not supported by substantial evidence. See Jones, 336 F.3d at 477 (“[T]he
Commissioner’s decision cannot be overturned if substantial evidence, or even a preponderance of

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the evidence, supports the claimant's position, so long as substantial evidence also supports the
conclusion reached by the ALJ.”). The ALJ is not required to discuss every piece of evidence,
especially when considering a medical opinion, and his 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). Plaintiff does not demonstrate how any of these
records render the ALJ’s decision to accord limited weight to Dr. Ruth’s opinion unsupported by
substantial evidence.
Finally, Plaintiff argues it was in error for the ALJ to find Plaintiff’s reported daily
activities were inconsistent with Dr. Ruth’s opinion that Plaintiff could never sit and only
occasionally stand or walk. (PageID.392–393.) However, based on his testimony and function
reports, Plaintiff is able to do more than “never” sit. Plaintiff argues, however, that Dr. Ruth’s
opinion should be read in concert with an April 22, 2013, Physical Work Performance Test, which
was completed by a physical therapist and submitted alongside Dr. Ruth’s opinion. Like Dr. Ruth’s
opinion, the test found that Plaintiff could never sit, but could occasionally stand and walk.
(PageID.283.) The test clarified that “‘[n]ever’ scores . . . do not mean the client can literally never
perform them. Rather, they are able to be performed for brief periods throughout the day but are
not able to be performed for up to 1/3 of the day.” (PageID.284.) Plaintiff claims that Dr. Ruth’s
opinion “likely” used the terms never and occasionally in the same way. (PageID.393.) Perhaps.
But the problem here is that Dr. Ruth did not indicate as such on the assessment he completed. The
assessment was clear with what was expected, and contained its own definitions. The ALJ’s reading
of the opinion was therefore not unreasonable. This, of course, only highlights the problems with
assessment worksheets that are unaccompanied by meaningful explanation.

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In sum the ALJ provided good reasons, supported by substantial evidence, for
assigning limited weight to Dr. Ruth’s opinion. Plaintiff’s claim of error is denied.
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: February 17, 2017

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

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