McCaleb v. Commissioner of Social Security

Filing 14

OPINION; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARK A. MCCALEB,
Plaintiff,

Case No. 1:16-cv-466

v.
HON. JANET T. NEFF
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). Plaintiff seeks review of the Commissioner’s decision denying his 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.
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 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 Administrative Law Judge’s
(ALJ) decision. (PageID.45, 68.) He has a GED, and was previously employed as a truck driver.
(PageID.68, 78.) Plaintiff applied for benefits on July 30, 2013, alleging disability beginning
January 12, 2013, due to bipolar disorder, vertigo, chronic sinusitis, sleep apnea, muscle pain, issues
with his thyroid, and a skin disorder in his hands. (PageID.131–132, 202–203.) Plaintiff’s
application was denied on October 21, 2013, after which time he requested a hearing before an ALJ.
(PageID.142–147.) On January 8, 2015, Plaintiff appeared with his counsel before ALJ William
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Reamon for an administrative hearing with testimony being offered by Plaintiff and a vocational
expert (VE). (PageID.65–128.) In a written decision dated March 27, 2015, the ALJ determined
that Plaintiff was not disabled. (PageID.45–64.) On March 30, 2016, the Appeals Council declined
to review the ALJ’s decision, making it the Commissioner’s final decision in the matter.
(PageID.35–40.) 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. § 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.
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

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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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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 Reamon determined Plaintiff’s claim failed at the fifth step of the evaluation.
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his
alleged disability onset date. (PageID.50.) At step two, the ALJ determined Plaintiff had the severe
impairments of moderate major depressive disorder, social anxiety, bipolar disorder, and myalgia
of the back and knees. (PageID.51.) At the third step, 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. (PageID.51–53.) At the fourth step, the ALJ determined Plaintiff retained the RFC
based on all the impairments to perform:
light work as defined in 20 CFR 404.1567(b) except the claimant
must avoid concentrated exposure to temperature extremes[,]
wetness, vibration and fumes, odors, dusts, gases and poor
ventilation; he also must avoid even moderate exposure to hazards
such as dangerous moving machinery and unprotected heights; he can
occasional[ly] interact[] with the general public and supervisors.
(PageID.53.) Continuing with the fourth step, the ALJ found that Plaintiff was unable to perform
any of his past relevant work. (PageID.58.) 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 other work as an assembler (16,000 Michigan jobs and 560,000 national jobs), packer
(12,000 Michigan jobs and 420,000 national jobs), and inspector (6,000 Michigan jobs and 210,000
national jobs). (PageID.126.) 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.59–60.)

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Accordingly, the ALJ concluded that Plaintiff was not disabled from January 12,
2013, the alleged disability onset date, through March 27, 2015, the date of decision. (PageID.60.)
DISCUSSION
On July 22, 2016, the Court entered a Notice in this case regarding the filing of briefs.
The Notice, in relevant part, stated that Plaintiff’s initial brief “must contain a Statement of Errors,
setting forth the specific errors of fact or law upon which Plaintiff seeks reversal or remand. Failure
to identify an issue in the Statement of Errors constitutes a waiver of that issue.” (PageID.503.)
Plaintiff’s Statement of Errors alleges the “Commissioner erroneously failed to give appropriate
weight to the opinions of the medical experts, violated agency rules, failed in her duties to provide
a fair and full hearing[,] and misapplied the law.” (PageID.511.) Accordingly, it falls far short of
the requirement that Plaintiff raise specific claims of fact or law within the Statement of Errors.2
Because Plaintiff’s counsel has failed to provide a proper Statement of Errors, the Court has
reviewed Plaintiff’s brief and gleans the following claims of error.
1.

The ALJ should have given controlling weight to the opinion of Ms. Nicole
Kosten, a licensed social worker, and Dr. Dennis Mulder, a consultative
examiner.

2.

The ALJ erred in assigning only partial weight to the opinion of Plaintiff’s
spouse.

The Court will discuss the issues below.
1.

Ms. Nicole Kosten.

On November 22, 2013, Ms. Nicole Kosten, a licensed social worker, completed a
medical source statement concerning Plaintiff’s limitations. (PageID.423–428.) Among other

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Plaintiff’s counsel is advised that future briefs that fail to provide a Statement of Errors alleging specific errors
may be stricken.

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things, Ms. Kosten offered an opinion regarding Plaintiff’s ability to perform unskilled work, his
ability to perform semiskilled and skilled work, and his ability to perform particular types of jobs.
(PageID.425–426.) Ms. Kosten noted, for example, that Plaintiff was unable to meet competitive
standards in the area of completing a normal workday and workweek without interruptions from
psychologically based symptoms, and in the area of dealing with normal work stress. (PageID.425.)
He was seriously limited in the ability to maintain regular attendance and be punctual, make simple
work related decisions, accept instructions and respond appropriately to criticism, and respond
appropriately to changes in a routine work setting. Plaintiff’s abilities were limited, but satisfactory,
in several additional areas. (PageID.425–426.) Notably, Ms. Kosten was asked three times to
explain these limitations and to include the medical and clinical findings that supported this
assessment. Each time, the area was left blank. (PageID.425–426.) Plaintiff argues the ALJ
committed reversible error when he gave little weight to this assessment.
The Court begins by determining whether Ms. Kosten qualifies as an acceptable
source. See 20 C.F.R. 404.1513(a). Plaintiff’s brief contains confusing references to Ms. Kosten’s
status as either an acceptable source or other source. At several points, for example, Plaintiff
strongly implies that Ms. Kosten should be considered not only as an acceptable source, but as a
treating source whose opinion should be given controlling weight. However Plaintiff later
seemingly admits that Ms. Kosten is only an other source whose opinion should be considered under
SSR 06–03p, an agency rule for considering opinions from such sources. (PageID.518–519.) The
Court will now clarify this confusion. Ms. Kosten is neither a treating physician nor an acceptable
source. She is a social worker. A social worker is not an “acceptable medical source.” See 20
C.F.R. § 404.1513(a), (d); see also Payne v. Comm’r of Soc. Sec., 402 F. App’x 109, 119 (6th Cir.
2010) (“[S]ocial workers are not acceptable medical sources under social security regulations.”).
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There is no “treating social worker rule,” and the opinion of a social worker is not entitled to any
particular weight. See Hayes v. Comm’r of Soc. Sec., No. 1:09–cv–1107, 2011 WL 2633945, at *6
(W.D. Mich. June 15, 2011) (collecting cases). Only “acceptable medical sources” can: (1) provide
evidence establishing the existence of a medically determinable impairment; (2) provide a medical
opinion; and (3) be considered a treating source whose medical opinion could be entitled to
controlling weight under the treating physician rule. See SSR 06–3p, 2006 WL 2329939, at *2
(S.S.A. Aug. 9, 2006)); see also Bliss v. Comm’r of Soc. Sec., 406 F. App’x 541 (2d Cir. 2011)
(“[T]he assessment by the social worker is ineligible to receive controlling weight because social
workers do not qualify as ‘acceptable medical sources.’”). Accordingly, the opinions of a social
worker fall within the category of information provided by “other sources.” See 20 C.F.R. §
404.1513(d).
Though Ms. Kosten’s opinion is not from an acceptable source, it should not
necessarily be completely rejected. Rather it may be used “to show the severity of [Plaintiff’s]
impairment(s) and how it affects [Plaintiff’s] ability to work.”

20 C.F.R. § 404.1513(d).

Additionally SSR 06–3p clarifies how the Social Security Administration will “consider opinions
from sources who are not ‘acceptable medical sources.’” SSR 06–3p, 2006 WL 2329939, at *1
(S.S.A. Aug. 9, 2006). It notes that:
With the growth of managed health care in recent years and the
emphasis on containing medical costs, medical sources who are not
“acceptable medical sources,” such as nurse practitioners, physician
assistants, and licensed clinical social workers, have increasingly
assumed a greater percentage of the treatment and evaluation
functions previously handled primarily by physicians and
psychologists. Opinions from these medical sources, who are not
technically deemed “acceptable medical sources” under our rules, are
important and should be evaluated on key issues such as impairment

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severity and functional effects, along with the other relevant evidence
in the file.
Id. at *3. The ruling further provides that “the adjudicator generally should explain the weight
given to opinions from these ‘other sources,’ or otherwise ensure that the discussion of the evidence
in the determination or decision allows a claimant or subsequent reviewer to follow the adjudicator’s
reasoning, when such opinions may have an effect on the outcome of the case.” Id. at *6. The
factors for considering acceptable source opinions found at 20 C.F.R. § 404.1527(d) “can” be
applied when evaluating these opinions. Id. at *4.
The Court concludes this standard was easily met here. The ALJ observed that the
opinions were given little weight for several reasons:
First, the opinions were given in a checkbox form without
explanation by Ms. Kosten (Exhibit 7F at 3-4). Second, this form
was filled out only after a few sessions with the claimant, as Ms.
Kosten indicated that the claimant had first presented to her on
August 23, 2013 and the form was filled out on November 23, 2013
(Exhibit 7F at 5, 6). Third, Ms. Kosten’s opinions contrast with her
own clinical notes. Although Ms. Kosten described additional factors
that would affect the claimant’s stress, such as punctuality, judgment,
complexity, and completing tasks, she previously stated that the
claimant’s anxiety is best described as social anxiety rather than
anxiety related to concentration, persistence, pace or the ability to
make judgments ((Exhibit 1F at 3, 7F at 5). Additionally, on
November 22, 2013, the day before she filled out the mental medical
source statement, Ms. Kosten stated that the form “will indicate that
the therapist does not believe that current mental health symptoms are
[‘]necessarily permanent[’]” and that the claimant’s prognosis at that
time was fair to good. (Exhibit 8F at 19). Finally, Ms. Kosten is not
an acceptable medical source. Therefore, Ms. Kosten’s opinions are
given little weight.
(PageID.58.)
The ALJ’s assessment is supported by the evidence of record. In addition to noting
Ms. Kosten was not an acceptable source, the ALJ correctly noted Ms. Kosten’s opinion was not
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supported by her treatment notes. For example, an August 29, 2013, note describes Plaintiff as
having a normal thought content with the ability to perform basic computations and apply abstract
reasoning. He also had a normal attention span and ability to concentrate. Most of his difficulty was
with social interaction. (PageID.355.) Another treatment note, this from the same date as the
assessment, indicates Plaintiff’s prognosis was good to fair, and Ms. Kosten further stated that the
restrictions offered were not necessarily permanent. (PageID.447.) The ALJ reasonably found such
notes to be inconsistent with the severity of the opinion. Moreover, the ALJ also correctly noted Ms.
Kosten did not explain the extreme limitations she provided. Indeed, in similar situations, the Sixth
Circuit has found that such rudimentary indications without any accompanying support meet the
patently deficient standard. See Hernandez v. Comm’r of Soc. Sec., 644 F. App’x 468, 475 (6th Cir.
2016). Plaintiff spends considerable effort pointing to other records she claims supports Ms.
Kosten’s opinion. But none of those records detract from the ALJ’s reasons for assigning the
opinion little weight or demonstrate the ALJ’s decision was unsupported by substantial evidence.
Furthermore, it also does not change the fact that Ms. Kosten did not explain her reasoning. Plaintiff
claims, however, that if there was any portion of the opinion that raised questions, the ALJ should
have recontacted Ms. Kosten. (PageID.518.) The Court is not persuaded.
Plaintiff bears “the ultimate burden of producing sufficient evidence to show the
existence of a disability.” Allison v. Apfel, 2000 WL 1276950 at *5 (6th Cir. Aug. 30, 2000)
(citations omitted). As the relevant Social Security regulations make clear, it is the claimant’s
responsibility to provide the evidence necessary to evaluate his claim for benefits. See 20 C.F.R.
§§404.1512 and 404.1514. As the Supreme Court has observed, “[i]t is not unreasonable to require

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the claimant, who is in a better position to provide information about his own medical condition, to
do so.” Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Only under “special circumstances, i.e., when a claimant is without counsel, is not
capable of presenting an effective case, and is unfamiliar with hearing procedures, does an ALJ have
a special, heightened duty to develop the record.” Trandafir v. Comm’r of Soc. Sec., 58 F. App’x
113, 115 (6th Cir. 2003) (citations omitted); Nabours v. Comm’r of Soc. Sec., 50 F. App’x 272, 275
(6th Cir. 2002) (citations omitted). Plaintiff was represented at the administrative hearing and there
is no evidence that his counsel was incapable of advocating Plaintiff’s position or was unfamiliar
with the relevant hearing procedures. Thus, the Court finds that the ALJ was not under a heightened
duty to develop the record in this matter.
Furthermore, the ALJ is not required to supplement the record with additional
evidence unless the record as it then exists is insufficient to assess Plaintiff’s RFC or otherwise
resolve his claims. See, e.g., Lamb v. Barnhart, 85 F. App’x 52, 57 (10th Cir. 2003); Ruby v. Colvin,
2014 WL 5782930 at *13 (S.D. Ohio, Nov. 6, 2014); Haney v. Astrue, 2010 WL 3859778 at *3
(E.D. Okla., Sept. 15, 2010). The record in this matter was sufficient to resolve Plaintiff’s claim for
benefits.
Finally, Plaintiff appears to fault the ALJ for assigning more weight to the opinion
of a non-examining consultant than to the opinion of Ms. Kosten because “[i]n general, the opinions
of treating physicians are accorded greater weight than those of physicians who examined claimants
only once.” (PageID.518.) The authority relied upon by Plaintiff is inapposite. Ms. Kosten is not
a treating physician. Instead, the proper authority is SSR 06–03p, which states:
The fact that a medical opinion is from an “acceptable medical
source” is a factor that may justify giving that opinion greater weight
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than an opinion from a medical source who is not an “acceptable
medical source” because, as we previously indicated in the preamble
to our regulations at 65 FR 34955, dated June 1, 2000, “acceptable
medical sources” “are the most qualified health care professionals.”
However, depending on the particular facts in a case, and after
applying the factors for weighing opinion evidence, an opinion from
a medical source who is not an “acceptable medical source” may
outweigh the opinion of an “acceptable medical source,” including
the medical opinion of a treating source. For example, it may be
appropriate to give more weight to the opinion of a medical source
who is not an “acceptable medical source” if he or she has seen the
individual more often than the treating source and has provided better
supporting evidence and a better explanation for his or her opinion.
SSR 06–3p, 2006 WL 2329939, at *5. Plaintiff is correct, then, to the extent that she claims in
certain situations an opinion from an other source may be given greater weight than an acceptable
source. The Court concludes, however, this is not such a situation. While Ms. Kosten has examined
Plaintiff seven times, her opinion was inconsistent with her treatment notes and lacked meaningful
explanation. The fact that she was not an acceptable source is also a relevant factor for giving the
opinion little weight. On the other hand, the ALJ found that the agency consultant’s opinion was
entitled to some weight to the extent it was consistent with the objective record. (PageID.57.) In
this, the ALJ correctly applied the factors found in 20 C.F.R. § 404.1527(c) and, accordingly, the
Court finds the ALJ properly evaluated Ms. Kosten’s opinion. This claim of error is denied.
2.

Dr. Dennis Mulder.

Plaintiff’s brief also references an opinion from Dr. Dennis Mulder, a consultative
examiner. (PageID.517.) Plaintiff, however, presents no argument regarding this opinion. Rather,
Plaintiff merely summarizes its contents and states that the opinion is consistent with the opinion
of Ms. Kosten. (PageID.517, 519.) It is not until her conclusion when Plaintiff claims that Dr.
Mulder’s opinion should have been given controlling weight. (PageID.521.) Even reading

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Plaintiff’s brief in the most indulgent way, the Court finds that any claim of error here has been
waived. “‘Issues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument
in the most skeletal way, leaving the court to . . . put flesh on its bones.’” United States v. Stewart,
628 F.3d 246, 256 (6th Cir. 2010) (quoting McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir.
1997)); see United States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996); accord Curler v. Comm’r of
Soc. Sec., 561 F. App’x 464, 475 (6th Cir. 2014) (“[P]laintiff develops no argument to support a
remand, and thus the request is waived.”).
Even if the argument had not been waived, it would have failed. The issue that
Plaintiff raises does not involve the treating physician rule because Dr. Mulder was a consultative
examiner who did not have a prior treating relationship with Plaintiff. See Smith v. Comm’r of Soc.
Sec., 482 F.3d 873, 876 (6th Cir. 2007); see also Louden v. Comm’r of Soc. Sec., 507 F. App’x 497,
498 (6th Cir. 2012); Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 506 (6th Cir. 2006).
Because Dr. Mulder was not a treating physician, the ALJ was not “under any special obligation to
defer to his opinion[s] or to explain why he elected not to defer to [them].” Karger v. Comm’r of
Soc. Sec., 414 F. App’x 739, 744 (6th Cir. 2011). The ALJ’s discussion of Dr. Mulder’s opinion
easily survives scrutiny. (PageID.57.)
3.

Ms. Ruth McCaleb.

In support of his application for benefits Plaintiff’s wife, Ms. Ruth McCaleb,
submitted a letter and third-party function report to the Commissioner. Both generally describe
Plaintiff as being much more limited than that found by the ALJ. (PageID.300–307, 334–340.) The
ALJ gave only partial weight to Ms. McCaleb’s opinion, noting that lay opinions are not acceptable

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medical opinions, the opinions were overly general, and that Ms. McCaleb had a financial interest
in Plaintiff’s application. (PageID.58.) Plaintiff’s final claim is that “[t]he Commissioner erred
when she gave Ms. McCaleb’s opinion partial weight because she lacked the credentials to offer
acceptable medical opinions. Although Ruth McCaleb may not have the medical expertise regarding
the Claimant’s medical conditions, she is in the best position to make comments on how she has seen
it affect the Claimant’s quality of life.” (PageID.520.) This short, conclusory argument lacks any
accompanying authority and accordingly also borders on waiver. Even giving Plaintiff the benefit
of the doubt, however, the Court finds no error.
Opinions expressed by lay witnesses such as a claimant’s spouse are not entitled to
any deference and the ALJ is not required to articulate good reasons for discounting such. See, e.g.,
Smith v. Comm’r of Soc. Sec., 481 F.3d 873, 876 (6th Cir. 2007). The ALJ is simply required to
consider such opinions and accord such the weight he finds appropriate. See, e.g., Engebrecht v.
Comm’r of Soc. Sec., 572 F. App’x 392, 397–98 (6th Cir. 2014). The ALJ gave sufficient
consideration here. He considered the opinion of Plaintiff’s spouse and afforded partial weight for
reasons supported by the record. (PageID.58.) It was not in error for the ALJ to consider the
financial interest that Plaintiff’s spouse would have in an award of benefits. Hyson v. Comm’r of
Soc. Sec., No. 5:12CV1831, 2013 WL 2456378, at *20 (N.D. Ohio June 5, 2013) (citing Ford v.
Barnhart, 57 F. App’x 984, 988–89 (3d Cir. 2003). Accordingly, this argument is rejected.

CONCLUSION
For the reasons articulated herein, the undersigned concludes that the ALJ’s decision
is AFFIRMED. A separate judgment shall issue.

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The Court further determines that appeal of this matter would not be taken in good
faith. See Smith v. Comm’r of Soc. Sec., 1999 WL 1336109, at *2 (6th Cir. 1999); Leal v. Comm’r
of Soc. Sec., No. 3:14 CV 285, 2015 WL 731311, at *2 (N.D. Ohio Feb. 19, 2015).
A separate judgment shall issue.
Dated: January 27, 2017

/s/ Janet T. Neff
JANET T. NEFF
UNITED STATES DISTRICT JUDGE

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