Ryan v. Commissioner of Social Security

Filing 12

OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CINDY R. RYAN,
Plaintiff,

Case No. 1:16-CV-469

v.
HON. PAUL L. MALONEY
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 supplemental security income (SSI) under Title XVI
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 thirty-eight years of age on the date of the ALJ’s decision. (PageID.43,
167.) She completed high school and has worked in the past as a cashier / checker, sale attendant,
and as a sorter. (PageID.122, 287.) Plaintiff has previously applied for benefits in 2007, 2010, and
2012, which all resulted in unfavorable decisions. Plaintiff sought review of the 2012 decision in
federal court and, on March 31, 2015, Magistrate Judge Green affirmed the decision of the
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Commissioner. See Ryan v. Comm’r of Soc. Sec., No. 1:13-cv-1380 (W.D. Mich. Marc. 31, 2015)
(ECF No. 13).
While her federal case was pending, Plaintiff also filed a new application for SSI on
December 24, 2013, alleging that she had been disabled since August 13, 2012, due to bipolar
disorder, depression, back pain, leg pain, migraines, shaking, and diabetes.1 (PageID.167, 259–263.)
This application was denied upon initial review on February 28, 2014, after which time Plaintiff
requested a hearing before an ALJ. (PageID.183–189.) On February 24, 2015, Plaintiff appeared
with her counsel before ALJ Stanley Chin for an administrative hearing at which time both Plaintiff
and a vocational expert (VE) testified. (PageID.102–126.) On April 8, 2015, the ALJ issued his
written decision, concluding that Plaintiff was not disabled. (PageID.43–65.) On March 21, 2016,
the Appeals Council declined to review the ALJ’s decision, making it the Commissioner’s final
decision in the matter. (PageID.39–38.) Plaintiff subsequently initiated this action under 42 U.S.C.
§ 405(g).
ALJ’S DECISION
The social security regulations articulate a five-step sequential process for evaluating
disability. See 20 C.F.R. § 416.920(a-f).2 If the Commissioner can make a dispositive finding at any
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Administrative res judicata arising from the 2012 decision (PageID.139–161), barred any onset of disability
date before August 13, 2012, the date of the prior decision. See Casey v. Sec’y of Health & Human Servs., 987 F.2d
1230, 1232 (6th Cir. 1993). Further, SSI benefits are not awarded retroactively for months prior to the application for
benefits. 20 C.F.R. § 416.335; see Kelley v. Comm’r of Soc. Sec., 566 F.3d 347, 349 n.5 (3d Cir. 2009); see also
Newsom v. Soc. Sec. Admin., 100 F. App’x 502, 504 (6th Cir. 2004). The earliest month in which SSI benefits are
payable is the month after the application for SSI benefits is filed. Thus, January 2014 is Plaintiff’s earliest possible
entitlement to SSI benefits.
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1.

An individual who is working and engaging in substantial gainful activity will not be found to be
“disabled” regardless of medical findings (20 C.F.R. § 416.920(b));

2.

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

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point in the review, no further finding is required. See 20 C.F.R. § 416.920(a). The regulations also
provide that if a claimant suffers from a nonexertional impairment as well as an exertional
impairment, both are considered in determining the claimant’s residual functional capacity (RFC).
See 20 C.F.R. § 416.945.
Plaintiff has the burden of proving the existence and severity of limitations caused
by her impairments and that she is precluded from performing past relevant work through step four.
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). At step five, it is the
Commissioner’s burden “to identify a significant number of jobs in the economy that accommodate
the claimant’s residual functional capacity (determined at step four) and vocational profile.” Id.
ALJ Chin determined Plaintiff’s claim failed at step five. At step one the ALJ found
that Plaintiff had not engaged in substantial gainful activity since December 24, 2013, her application
date. (PageID.48.) At step two, the ALJ found that Plaintiff suffered from the severe impairments
of: (1) migraine headaches; (2) obesity; (3) cervical and lumbar spine disorders; (4) bipolar disorder;
(5) schizoaffective disorder; (6) anxiety disorder; and (7) personality disorder. (PageID.49.) 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.

3.

If an individual is not working and is suffering from a severe impairment which meets the duration
requirement and which “meets or equals” a listed impairment in Appendix 1 of Subpart P of
Regulations No. 4, a finding of “disabled” will be made without consideration of vocational factors
(20 C.F.R. § 416.20(d));

4.

If an individual is capable of performing work he or she has done in the past, a finding of “not
disabled” must be made (20 C.F.R. § 416.920(e));

5.

If an individual’s impairment is so severe as to preclude the performance of past work, other factors
including age, education, past work experience, and residual functional capacity must be considered
to determine if other work can be performed. (20 C.F.R. § 416.920(f)).

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P, App. 1. (PageID.49–52.) At step four, the ALJ determined Plaintiff retained the RFC based on
all the impairments to perform:
sedentary work as defined in 20 CFR 416.967(a): The claimant is
limited to lifting up to twenty pounds occasionally and lifting up to
ten pounds frequently. She is limited [to] standing and walking for
up to two hours and sitting for up to six hours in an eight-hour
workday with normal breaks. She is limited to no ladders, ropes, or
scaffolds and no crouching or crawling. She is limited to occasional
ramps or stairs and occasional balancing, stooping, and kneeling. She
is to occasionally avoid the use of moving machinery and exposure
to unprotected heights. She is further limited to simple, routine, and
repetitive tasks performed in a work environment free of fast-paced
production requirements involving only simple, work-related
decisions and routine workplace changes. She is limited to
occasional interaction with the public, coworkers, and supervisors.
(PageID.52.)

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

perform any of her 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 her limitations. See Richardson, 735 F.2d at 964. The VE testified that Plaintiff could
perform work in the following representative jobs: addresser (25,819 national positions), table
worker (13,738 national positions) and surveillance system monitor (17,284 national positions).
(PageID.122–124.) 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.)
Accordingly, the ALJ concluded that Plaintiff was not disabled from December 24,
2013, through April 8, 2015, the date of decision. (PageID.60.)

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DISCUSSION
On July 6, 2016, the Court entered a notice directing the filing of briefs in this matter.
Among other things, the notice stated that Plaintiff’s initial brief “must contain a Statement of
Errors, setting forth in a separately numbered section, each specific error of fact or law upon which
Plaintiiff seeks reversal or remand. Failure to identify an issue in the Statement of Errors constitutes
a waiver of that issue.” (PageID.962.) Plaintiff’s initial brief provides only a vague and generic
statement of errors. (PageID.970.) The Court must therefore frame the issues for review and gleans
the following claims from Plaintiff’s brief:
1.

Substantial evidence supports the opinions of Dr. Devine,
Dr. Sidiropoulos, and Dr. Santos.

2.

The ALJ should have re-contacted those physicians for clarification of their
opinions pursuant to SSR 96-5p.

The Court will discuss those issues below.3
I.

Treating Physician Rule.

Plaintiff’s brief provides lengthy excerpts from a total of six different medical
opinions from three different treating physicians. Dr. Nancy Devine, M.D., provided two opinions
contained in a mental RFC questionnaire, one dated April 25, 2011, and the other dated April 27,
2012. (PageID.744–748, 775–779.) Dr. Devine’s sole obligation regarding these questionnaires was

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The Court finds any other claims have been waived. Specifically, Plaintiff made brief arguments regarding
the ALJ’s credibility discussion, the ALJ’s review of an opinion from Dr. James Tripp (an agency reviewer), and the
ALJ’s discussion of an opinion from Ms. Anna Ryan (Plaintiff’s mother). Plaintiff’s arguments here are cursory at best,
and contain no reference to any relevant legal authority. “‘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.”).

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to fill in a blank, circle an answer, check a box, or provide a short answer. Both opinions state
Plaintiff was limited to an extent greater than as recognized by the ALJ. Specifically, the form
discussed Plaintiff’s capability to perform unskilled, semiskilled, and skilled work, as well as her
ability to do particular types of jobs. In all these areas, the doctor found Plaintiff had substantial
limitations. Furthermore, both opinions indicate that, were she to work, Plaintiff could be expected
to be absent from work several times a month. (Id.) On September 2, 2011, Dr. Devine also
completed a short checkbox opinion indicating that Plaintiff was unable to work. (PageID.780.) On
April 10, 2014, and November 5, 2014, Dr. Andreas Sidiropoulos completed mental RFC
questionnaires that were similar to those completed by Dr. Devine. Like Dr. Devine, Dr.
Sidiropoulos also indicated Plaintiff’s impairments led to restrictions greater than those accounted
for in the ALJ’s RFC determination. (PageID.708–713, 810–818.) Finally, on September 24, 2014,
Dr. Ronel Santos completed a questionnaire entitled “Headaches Medical Source Statement.” While
this statement differed in substance from those completed by Dr. Devine and Dr. Sidiropoulos, it was
similar in form in that the doctor’s obligation was only to fill in a blank, circle an answer, check a
box, or provide a short answer. Dr. Santos indicated that Plaintiff suffered from headaches of
multiple types and of moderate intensity, seven days a week. Each headache lasted between twelve
and twenty-four hours. He indicated Plaintiff would need to take unscheduled breaks, possibly five
days a week, each for several hours. In total, Plaintiff would likely be off task for twenty-five
percent or more of a workday, and would miss work more than four days a month.
(PageID.823–826.) The ALJ provided the following discussion of these opinions.
As for the opinion evidence, I first considered the medical
assessments submitted by Andreas Sidiropoulos, M.D. Dr.
Sidiropoulos completed a medical assessment in April 2014 and
noted that the claimant’s GAF score was 50. (Exhibit C21F). A
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follow up assessment in November 2014 stated that the claimant is
prone to panic attacks and anger outbursts, has social phobias, and
does not get along with others or do well in big crowds. He
concluded that the claimant has limitation in responding to work
stress and criticism from coworkers and supervisors and that she
would have trouble following directions, completing a normal
workday without breaks and working at a consistent pace. He farther
concluded she would be absent more than four days per month
because of her impairments. (Exhibit Cl IF). I note that Dr.
Sidiropoulos is an acceptable medical source for functional opinions
and is the claimant’s treating physician. However, his opinions are
conclusory in nature as they are primarily represented by checked
boxes on a standardized form. Dr. Sidiropoulos provided only
minimal narrative justification for his assessments and included no
citations to specific examination findings that would support his
opinions.2 In addition, although the doctor concludes the claimant
has severe vocational restrictions, it is not clear that the doctor was
familiar with the definition of ‘disability’ contained in the Social
Security Act and regulations. Specifically, it is possible that the
doctor was referring solely to an inability to perform the claimant’s
past work, which is consistent with the conclusions reached in this
decision. Finally, his opinions are inconsistent with the overall record
as a whole, which renders them less persuasive. Therefore, I have
assigned his opinions minimal weight.
I then considered the mental residual functional capacity
questionnaire opinions of Nancy Devine, M.D. from April 2011 and
April 2012. Dr. Devine assessed the claimant with bipolar disorder
and assessed her with a GAF score of 45 with a fair prognosis of
improvement. (Exhibit C15F and Cl 7F). I note that Dr. Devine is an
acceptable medical source for vocational functioning opinions.
However, her opinions are also of limited value in that they are also
in the form of a standardized form with no explanation of her
conclusions with citations to specific examination findings. I
additionally note that Dr. Devine’s opinions pre-date ALJ Grit’s prior
decision and that they therefore provide no indication of the
claimant’s level of functioning for the unadjudicated period at issue
in the present case. I therefore assigned Dr. Devine’s opinions little
weight.
I next considered the medical statement from Ronel Santos, M.D.,
from September 2014. Dr. Santos diagnosed the claimant with
chronic migraines and indicated that they cause the claimant nausea,
phonophobia, photophobia, exhaustion, and malaise. He concluded
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that these headaches would occur five days per week and would
preclude her from doing any work related activities during them and
that she would take several hours to recover. He farther concluded
that the claimant would be off- task up to twenty-five percent of the
day and absent more than four days per month due to her migraines.
(Exhibit C23F). I note that Dr. Santos is an acceptable medical
source for opinions and one of the claimant's treating physicians.
However, his assessment is also conclusory in nature and fails to
explain the underlying basis for his conclusions regarding the impact
of the claimant’s migraines on her vocational functioning given the
other evidence in the record and the claimant's hearing testimony
indicating her migraines occur less frequently than he states in his
opinion. Therefore, I have assigned his opinion minimal weight.
2

See, e.g., Mason v. Shalala, 994 F.2d 1058, 1065 (3d
Cir. 1993) (terming form reports “weak evidence at
best”); Crane v. Shalala, 76 F.3d 251, 253 (9th Cir.
1996) (holding that the ALJ "permissibly rejected"
three psychological evaluations “because they were
check-off reports that did not contain any explanation
of the bases of their conclusions”); O’Leary v.
Schweiker, 710 F.2d 1334, 1341 (8th Cir. 1983)
(“[W]hile these forms are admissible, they are entitled
to little weight and do not constitute ‘substantial
evidence’ on the record as a whole”).
(PageID.56–57.) Plaintiff contends the ALJ’s discussion of these opinions was in error.
By way of background the treating physician doctrine recognizes that medical
professionals who have a long history of caring for a claimant and her maladies generally possess
significant insight into her medical condition. See Barker v. Shalala, 40 F.3d 789, 794 (6th Cir.
1994). An ALJ must, therefore, give controlling weight to the opinion of a treating source if: (1) the
opinion is “well-supported by medically acceptable clinical and laboratory diagnostic techniques”
and (2) the opinion “is not inconsistent with the other substantial evidence in the case record.”
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375–76 (6th Cir. 2013) (quoting 20 C.F.R. §
404.1527).

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Such deference is appropriate, however, only where the particular opinion “is based
upon sufficient medical data.” Miller v. Sec’y of Health & Human Servs., 1991 WL 229979 at *2
(6th Cir., Nov. 7, 1991) (citing Shavers v. Sec’y of Health & Human Servs., 839 F.2d 232, 235 n.1
(6th Cir. 1987)). The ALJ may reject the opinion of a treating physician where such 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.” 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.
At this point it is important to recognize what Plaintiff is, and is not, alleging.
Notably, even after the most indulgent reading, Plaintiff does not argue the ALJ failed to provide
good reasons for assigning less than controlling weight to the opinions of these three physicians.4

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The Court notes that at least as regards Dr. Sidiropoulos’s April 10, 2014 opinion, the ALJ may very well have
failed to articulate good reasons that were supported by substantial evidence. But again, Plaintiff does not raise this
error, and the Court will not review it.

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In other words, Plaintiff does not claim the ALJ improperly rejected the opinions of the physicians.
Instead, Plaintiff merely lists the doctors’ various opinions, and then cherry picks record evidence
(some of which are beyond the scope of this Court’s review5) that she claims supports the opinions.
Plaintiff’s burden on appeal is much higher than citing evidence on which the ALJ could have found
a greater level of restriction. She must show that the ALJ’s factual finding is not supported by
substantial evidence. “[T]he Commissioner’s decision cannot be overturned if substantial evidence,
or even a preponderance of the evidence, supports the claimant’s position, so long as substantial
evidence also supports the conclusion reached by the ALJ.” See Jones, 336 F.3d at 477. As all
Plaintiff has done is point to evidence from which the ALJ could have reached a different decision,
her claim must fail. This is because Plaintiff’s alleged errors essentially ask this Court to re-weigh
the evidence with respect to the medical opinions without demonstrating, or even claiming, that the
ALJ’s treatment of these opinions is not supported by substantial evidence. In short, Plaintiff is
asking this Court to perform a de novo review of the record. It is beyond the scope of this Court’s
review to perform such a review. See Brainard, 889 F.2d at 681.
2.

SSR 96-5p.

Plaintiff closes her argument regarding the three physicians by contending that if the
ALJ had questions regarding these physicians’ opinions (as evidenced by the fact that they were not
5

The Court notes that in stating record evidence supports these physicians’ opinions, Plaintiff twice references
medical records that were submitted to the Appeals Council, but were not before the ALJ. (PageID.983, 986.) This
Court is precluded from considering that evidence. In Cline v. Comm’r of Soc. Sec., 96 F.3d 146 (6th Cir. 1996), the
Sixth Circuit indicated that where the Appeals Council considers new evidence that was not before the ALJ, but
nonetheless declines to review the ALJ’s determination, the district court cannot consider such evidence when
adjudicating the claimant’s appeal of the ALJ’s determination. Id. at 148; see also Bass v. McMahon, 499 F.3d 506,
512–13 (6th Cir. 2007). If Plaintiff can demonstrate, however, that this evidence is new and material, and that good cause
existed for not presenting it to the ALJ, the Court can remand the case for further proceedings, during which this new
evidence can be considered. Cline, 96 F.3d at 148. Plaintiff, however, has not asked for a sentence six remand, much
less demonstrated that this evidence is new, material, and that good cause existed for not presenting it to the ALJ. Thus
any request for a sentence six remand has also been waived.

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assigned controlling weight) the ALJ had a duty, pursuant to SSR 96-5p, to recontact those
physicians for clarification. In Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269 (6th Cir. 2010), the
Sixth Circuit held that there were “two conditions that must both be met to trigger the duty to
recontact: ‘the evidence does not support a treating source’s opinion . . . and the adjudicator cannot
ascertain the basis of the opinion from the record.’” Id. at 273 (quoting SSR 96-5p, 1996 WL
374183, at *6 (July 2, 1996)). An unsupported opinion alone does not trigger the duty to re-contact.
Id.
The duty is not triggered where, as here, the ALJ did not reject the physician’s
opinions because they were unclear; instead, he rejected the opinions because they were unsupported,
conclusory, or concerned previously adjudicated periods. (PageID.56–57.) “‘[A]n ALJ is required
to re-contact a treating physician only when the information received is inadequate to reach a
determination on claimant’s disability status, not where, as here, the ALJ rejects the limitations
recommended by that physician.” Ferguson, 628 F.3d at 274 (quoting Poe v. Comm’r of Soc. Sec.,
342 F. App’x 149, 156 n.3 (6th Cir. 2009)). Again, Plaintiff does not disagree or allege any error
with regard to the reasons provided by the ALJ for assigning less than controlling weight to these
opinions. Moreover, the former regulations which had “recogniz[ed] a duty to recontact in cases
where the evidence from the treating physician [was] inadequate to determine disability and
contain[ed] a conflict or ambiguity requiring clarification,” Id. at 273 (citing 20 CFR. §§
404.1512(e), 416.912(e)), were revised effective March 26, 2012, well before the ALJ’s decision in
this case. The revised regulations are found at 20 C.F.R. §§ 404.1520b(c)(1), 416.920b(c)(1) and
clarify that the Commissioner has “discretion, not a duty, to re-contact a medical source.”

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Jones v. Colvin, No. 2:12–cv–3605, 2014 WL 1046003, at *11 (N.D. Ala. March 14, 2014).
Accordingly, the ALJ did not violate SSR 96-5p. This 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: May 2, 2017

/s/ Paul L. Maloney
PAUL L. MALONEY
United States District Judge

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