Dewey v. Commissioner of Social Security
OPINION ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
MICHAEL ERNEST DEWEY,
Case No. 1:16-CV-395
HON. ROBERT J. JONKER
COMMISSIONER OF SOCIAL
This is a social security action brought under 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. 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.
Plaintiff was forty years of age on the date of the Administrative Law Judge’s (ALJ)
decision. (PageID.26, 52.) He has a high school education and previously worked as a snow
remover, car detailer, and automobile porter. (PageID.55, 73.) Plaintiff applied for benefits on
September 27, 2013, alleging that he had been disabled since September 20, 2013, due to a bad back,
ADHD, anxiety, and depression. (PageID.107, 169–175.) Plaintiff’s application was denied on
November 5, 2013, and Plaintiff subsequently requested a hearing before an ALJ. (PageID.120–123,
126–127.) On October 9, 2014, Plaintiff appeared with his counsel before ALJ Paul W. Jones for
an administrative hearing at which time Plaintiff, his wife, and a vocational expert (VE) all testified.
(PageID.44–105.) In a written decision dated November 14, 2014, the ALJ determined that Plaintiff
was not disabled. (PageID.26–42.) Thereafter, on February 22, 2016, the Appeals Council declined
to review the ALJ’s decision. (PageID.16–21.) Plaintiff subsequently initiated this action under 42
U.S.C. § 405(g).
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
impairment, both are considered in determining the claimant’s residual functional capacity (RFC).
See 20 C.F.R. § 404.1545.
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));
An individual who does not have a “severe impairment” will not be found “disabled” (20 C.F.R.
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));
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));
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)).
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.
ALJ Jones determined Plaintiff’s claim failed at step four. At step one, the ALJ found
that Plaintiff had not engaged in substantial gainful activity since September 20, 2013, the alleged
disability onset date. (PageID.31.) At step two, the ALJ found that Plaintiff suffered from the
following severe impairments: (1) degenerative disc disease of the lumbar spine; (2) Attention
Deficit Disorder (ADD); and (3) a generalized anxiety disorder. (PageID.31–32.) 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.32–33.) At step four, the ALJ determined Plaintiff retained the RFC based on all the
impairments to perform:
medium work as defined in 20 CFR 404.1567(c). He can lift up to 50
pounds occasionally, and lift/carry up to 25 pounds frequently; only
occasionally climb ramps or stairs; never climb ladders, ropes, or
scaffolds; occasionally stoop; and frequently balance, kneel, crouch,
and crawl. He is limited to simple, routine, repetitive tasks with only
occasional changes in the work setting.
(PageID.33.) Continuing with the fourth step, the ALJ posed the above RFC in a hypothetical
question to the VE.2 In response to the ALJ’s questioning, the VE testified that Plaintiff was capable
of returning to his past relevant work. (PageID.81.) Relying on this testimony, the ALJ concluded
Although not required, it is common practice for an ALJ to rely upon a VE’s testimony at step four of the
sequential analysis. See, e.g., Delgado v. Comm’r of Soc. Sec., 30 F. App’x 542, 548 (6th Cir. 2002).
that Plaintiff’s claim failed at step four, as his past relevant work did not require the performance of
work-related activities precluded by his RFC. (PageID.37.) Having made his determination at step
four, the ALJ was not required to proceed to step five, however, the ALJ also included an alternative
step five finding that Plaintiff was able to perform work in other jobs that exist in significant
numbers in the national economy. Again relying on VE testimony, the ALJ found Plaintiff was able
to perform work as a dishwasher (80,000 positions), inspector (100,000 positions), and machine
operator (60,000 positions). (PageID.38, 82.) 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
Accordingly, the ALJ concluded that Plaintiff was not disabled from September 20,
2013, through November 14, 2014, the date of decision. (PageID.38–39.)
The ALJ’s Decision is Not Internally Inconsistent.
Plaintiff first contends that the ALJ erred because although he determined at step
three that Plaintiff had “moderate” limitations in maintaining concentration, persistence or pace, the
ALJ did not include these limitations in Plaintiff’s RFC. (PageID.333–335.) RFC is a medical
assessment of what an individual can do in a work setting in spite of functional limitations and
environmental restrictions imposed by all of his medically determinable impairments. 20 C.F.R.
§ 404.1545. RFC is defined as “the maximum degree to which the individual retains the capacity
for sustained performance of the physical-mental requirements of jobs” on a regular and continuing
basis. 20 C.F.R. Part 404, Subpt. P, App. 2, § 200.00(c).
Plaintiff is correct in pointing out that the ALJ found he had moderate limitations in
concentration, persistence, and pace at step three. However, Plaintiff fails to recognize that the ALJ’s
assessment of disorders at steps two and three:
are not an RFC assessment but are used to rate the severity of mental
impairment(s) at steps 2 and 3 of the sequential evaluation process.
The mental RFC assessment used at steps 4 and 5 of the sequential
evaluation process requires a more detailed assessment by itemizing
various functions contained in the broad categories found in
paragraphs B and C of the adult mental disorders listings in 12.00 of
the Listing of Impairments.
SSR 96–8p, 1996 WL 374184, at *4 (July 2, 1996); see also 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§ 12.00.A. (“RFC is a multidimensional description of the work-related abilities you retain in spite
of your medical impairments. An assessment of your RFC complements the functional evaluation
necessary for paragraphs B and C of the listings by requiring consideration of an expanded list of
work-related capacities that may be affected by mental disorders when your impairment(s) is severe
but neither meets nor is equivalent in severity to a listed mental disorder”).
The court discussed a similar issue in Pinkard v. Commissioner of Social Security
Administration, No. 1:13–cv–1339, 2014 WL 3389206 (N.D. Ohio July 9, 2014). That case
explained the difference between the findings made at step three to determine whether a claimant
met the requirements of a particular listed impairment and the RFC determination made at step four
Next, Plaintiff argues that the ALJ erred in concluding that Plaintiff
had moderate difficulties in concentration, persistence, and pace,
while failing to include an appropriate limitation for these difficulties
in the RFC findings . . . Plaintiff refers to the ALJ’s paragraph B
findings in his evaluation of Plaintiff's depression under 12.04 of the
listing of impairments [ ]. 20 C.F.R. pt. 404, subpt. P, app. 1 Sections
12.04, 12.05, 12.06. However, the ALJ does not have to include
paragraph B finding[s] in his RFC finding. Paragraph B findings
under the listings are findings at step three of the sequential
evaluation process, and are not RFC findings pertaining to steps four
and five of the sequential evaluation process. 20 C.F.R. pt. 404,
subpt. P, app. 1, Section 12.00. Hence, the ALJ was correct in
finding that Plaintiff had moderate limitations in evaluating her
mental impairment under the listings at step three of the sequential
evaluation process, and in not including a “moderate limitation in
concentration, persistence, and pace” in his residual functional
capacity finding at steps four and five.
Pinkard, 2014 WL 3389206 at *10. The Court agrees with this analysis and finds the inconsistency
alleged by Plaintiff is simply not present here. Accordingly, this claim of error is denied.
The ALJ’s Credibility Analysis is Supported by Substantial Evidence.
At the administrative hearing, Plaintiff testified he was unable to perform the duties
of his past work due to both physical and mental issues. (PageID.75.) For example, he testified he
was unable to stay focused and could not watch television for any length of time before being
distracted by something else. (PageID.85, 90.) He also testified he had back pain going down his
leg. (PageID.93.) This pain limited him to being able to walk only a couple of blocks. (PageID.94.)
In his decision, the ALJ found Plaintiff’s allegations were “not entirely credible.” (PageID.34.)
Plaintiff claims the ALJ erred in doing so. (PageID.336–345.)
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); see also Grecol v. Halter, 46 F. App’x 773, 775 (6th Cir. 2002). 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. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997) (quoting 20 C.F.R. § 404.1529(a)); Hash
v. Comm’r of Soc. Sec., 309 F. App’x 981, 989 (6th Cir. 2009). Instead, a claimant’s assertions of
disabling pain and limitation are evaluated under 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. Comm’r of Soc. Sec., 105 F. App’x 794, 801 (6th Cir. 2004).
Accordingly, “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.” Id. (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.” Id. (citing Walters, 127 F.3d at 531); see also Heston v.
Comm’r of Soc. Sec., 245 F.3d 528, 536 (6th Cir. 2001) (quoting Myers v. Richardson, 471 F.2d
1265, 1267 (6th Cir. 1972) (“[i]t [i]s 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 not be lightly disregarded. See Varley v. Sec’y of Health & Human
Servs., 820 F.2d 777, 780 (6th Cir. 1987). In fact, as the Sixth Circuit has stated, “[w]e have held
that an administrative law judge’s credibility findings are virtually unchallengeable.” Ritchie v.
Comm’r of Soc. Sec., 540 F. App’x 508, 511 (6th Cir. 2013) (citation omitted).
Plaintiff’s argument begins by arguing the ALJ’s analysis is flawed because the ALJ
merely identified a “lack of corroboration” for Plaintiff’s allegations rather than a direct
“contradiction” thereof. Plaintiff claims such violates the following portion of agency regulations:
Because symptoms, such as pain, are subjective and difficult to
quantify, any symptom-related functional limitations and restrictions
which you, your treating or nontreating source, or other persons
report, which can reasonably be accepted as consistent with the
objective medical evidence and other evidence, will be taken into
account as explained in paragraph (c)(4) of this section in reaching a
conclusion as to whether you are disabled.
20 C.F.R. § 404.1529(c). As other courts in this district have held, however, Plaintiff’s argument
is contrary to the controlling authority identified above and “stretches the language of this regulation
too far.” Pratt v. Comm’r of Soc. Sec., No. 1:10-CV-438, 2012 WL 5844969, at *6 (W.D. Mich.
Nov. 19, 2012). Indeed, the regulation’s wording “suggest[s] a subtle and complex weighing
process, rather than . . . [a] crude dichotomy.” Id. Therefore, the Court declines to adopt Plaintiff’s
interpretation of the relevant regulations.
Plaintiff also objects to the following paragraph in the ALJ’s decision:
After careful consideration of the evidence, I find that the claimant’s
medically determinable impairments could reasonably be expected to
cause the alleged symptoms; however, the claimant’s statements
concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible for the reasons explained in this
(PageID.34.) As the Sixth Circuit has recognized, however, the “chief concern with the popularity
[of this language] is the risk that an ALJ will mistakenly believe it sufficient to explain a credibility
finding, as opposed to merely introducing or summarizing one.” Cox v. Comm’r of Soc. Sec., 615
F. App’x 254, 260 (6th Cir. 2015) (emphasis in original). Accordingly, the Sixth Circuit has found
no violation of Social Security policy when the use of boilerplate credibility language is followed
by a “thorough explanation elsewhere of [the ALJ’s] reasons for doubting [the claimant’s] account.”
Forrest v. Comm’r of Soc. Sec., 591 F. App’x 359, 366 (6th Cir. 2014). Here, the ALJ did not solely
discount Plaintiff’s credibility using the above language. Moreover, the ALJ’s subsequent reasoning
is not so vague, as Plaintiff alleges, so as to preclude meaningful review.
Indeed Plaintiff’s subjective allegations, to the extent such are inconsistent with his
RFC, enjoy little (if any) support in the record. As the ALJ found, for example, Plaintiff “described
daily activities that are not limited to the extent one would expect, given the complaints of disabling
symptoms and limitations.” (PageID.34.) In this, the ALJ was not equating Plaintiff’s daily
activities to an ability to perform full time work, but rather making the accurate observation that
Plaintiff’s abilities to perform activities such as shovel snow and paint his house were inconsistent
with his reports of back pain and difficulty concentrating. (PageID.262, 303.) The ALJ also
correctly observed that despite Plaintiff’s testimony that his work ended because of his inability to
focus, there was little evidence in the record supporting this assertion. Moreover, as the ALJ further
noted, Plaintiff received only irregular treatment for his mental impairments. (PageID.36.)
Furthermore, mental status exams indicated lower anxiety, panic attacks that had mostly resolved,
and a “good” ability to focus. (PageID.296.) In sum, the ALJ’s decision to accord limited weight
to Plaintiff’s subjective allegations is supported by substantial evidence.
Plaintiff Has Not Satisfied His Burden For A Sentence Six Remand.
Plaintiff submitted additional records to the Appeals Council that were not considered
by the ALJ. This includes a November 14, 2014, letter from Dr. Stephanie Commings, as well as
an October 23, 2014, RFC mental RFC assessment completed by Dr. Commings. (PageID.316–323.)
In his final claim, Plaintiff requests a remand under sentence six. When a plaintiff submits evidence
that has not been presented to the ALJ, the court may consider the evidence only for the limited
purpose of deciding whether to issue a sentence-six remand under 42 U.S.C. § 405(g). See Sizemore
v. Sec’y of Health & Human Servs., 865 F.2d 709, 711 (6th Cir. 1988). Under sentence-six, “[t]he
court . . . may at any time order the additional evidence to be taken before the Commissioner of
Social Security, but only upon a showing that there is new evidence which is material and that there
is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . .”
42 U.S.C. § 405(g). In a sentence-six remand, the court does not rule in any way on the correctness
of the administrative decision, neither affirming, modifying, nor reversing the Commissioner's
decision. Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991). “Rather, the court remands because new
evidence has come to light that was not available to the claimant at the time of the administrative
proceeding and that evidence might have changed the outcome of the prior proceeding.” Id. “The
party seeking a remand bears the burden of showing that these two requirements are met.” Hollon
ex rel. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 483 (6th Cir.2006).
In order for a claimant to satisfy the burden of proof as to materiality, “he must
demonstrate that there was a reasonable probability that the [Commissioner] would have reached a
different disposition of the disability claim if presented with the new evidence.” Sizemore, 865 F.2d
at 711. However, “[e]vidence of a subsequent deterioration or change in condition after the
administrative hearing is deemed immaterial.” Wyatt v. Sec’y of Health & Human Servs., 974 F.2d
680, 685 (6th Cir.1992).
“A claimant shows ‘good cause’ by demonstrating a reasonable
justification for the failure to acquire and present the evidence for inclusion in the hearing before the
ALJ.” Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). To show good cause a claimant is
required to detail the obstacles that prevented him from entering the evidence in a timely manner.
Bass v. McMahon, 499 F.3d 506, 513 (6th Cir. 2007).
Assuming that this additional evidence qualifies as new, the Court finds that Plaintiff
has failed to satisfy his burden of demonstrating good cause and materiality. Plaintiff suggests that
he has good cause for failing to present the opinion to the ALJ prior to hearing because “treaters are
more willing to fill out [disability] forms if same is delivered personally by the patient.”
(PageID.348.) He further contends it was not reasonable to obtain an opinion prior to receipt of a
notice of hearing, and accordingly the next possible time to obtain an opinion was at Plaintiff’s next
appointment after the hearing. (PageID.348.) This falls far short of demonstrating good cause.
Nothing in Dr. Commings’ letter or elsewhere indicates that she would only fill out disability
paperwork during a predetermined appointment with Plaintiff. Moreover, Plaintiff’s assertion that
it was unreasonable to obtain an opinion prior to receipt of a notice of a hearing is illogical. Nothing
about the fact that an opinion was obtained prior to a hearing notice would make such an opinion
stale. The case Plaintiff relies on is readily distinguished. In that case, Plaintiff proceeded
unrepresented and had requested a postponement of the hearing. The hearing, however, went on as
scheduled and accordingly it came as a surprise to the plaintiff that the hearing would take place.
Finkbeiner v. Comm’r of Soc. Sec., No. 13-13906, 2015 WL 668058, at *9 (E.D. Mich. Feb. 17,
2015). Here there is no such confusion. Moreover, Plaintiff was represented by counsel, who,
presumably, would know it was Plaintiff’s burden to marshal the evidence supporting his case for
disability. Even if this were not true, the ALJ granted Plaintiff’s request for an additional two weeks
after the hearing to submit the RFC form, well after Plaintiff’s appointment with Dr. Cummings.
Plaintiff does not demonstrate why he was unable to timely submit the form.
Even if Plaintiff were somehow able to succeed in demonstrating good cause, Plaintiff
has failed to demonstrate the additional evidence is material. The narrative letter is largely
cumulative of information already in the record. And the assertion that Plaintiff is precluded from
gainful employment would not be entitled to any particular weight as it is an opinion reserved to the
Commissioner. See 20 C.F.R. § 404.1527(d); Turner v. Comm’r of Soc. Sec., 381 F. App’x 488, 493
(6th Cir. 2010). Similarly, the RFC worksheet would not have helped Plaintiff’s cause. It consists
of twenty questions in which Dr. Commings’ sole obligation was to check a box indicating the
severity of Plaintiff’s impairment in that category. Dr. Commings indicated Plaintiff was not
significantly limited in eight categories, moderately limited in eight others, and markedly limited in
four. (PageID.320–321.) The worksheet contained no definitions for what was moderately or
markedly limited. Furthermore, no explanation was provided beyond the check box indications. The
November 14, 2014, provides little by way of explanation as well.
Plaintiff argues that the worksheet is material both to the ALJ’s evaluation of his
credibility as well as to the RFC determination. Regarding Plaintiff’s credibility, it is true that the
ALJ observed there was no opinion from a treating source. (PageID.36.) But this was not the only
reason used by the ALJ for discounting Plaintiff’s credibility. Indeed as delineated above, the ALJ
had ample justification for discounting the severity of Plaintiff’s complaints. Substantial evidence
therefore would remain to support the ALJ’s determination. See Ulman v. Comm’r of Soc. Sec., 693
F.3d 709, 714 (6th Cir. 2012). Moreover, the Sixth Circuit has noted that “rudimentary indications
that lack an accompanying explanation” meets “the patently deficient standard.” Hernandez v.
Comm'r of Soc. Sec., 644 F. App'x 468, 475 (6th Cir. 2016) (citing Friend v. Comm’r of Soc. Sec.,
375 F. App’x 543, 551 (6th Cir. 2010). The RFC worksheet here is similarly lacking in meaningful
explanation and accordingly is deficient. Therefore, Plaintiff cannot demonstrate this evidence is
material, and for all the above reasons, has failed to satisfy his burden to demonstrate a sentence six
remand is warranted.
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.
January 24, 2017
/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE
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