Pfaff v. Commissioner of Social Security

Filing 17

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

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHELLE PFAFF,
Plaintiff,

Hon. Ellen S. Carmody

v.

Case No. 1:16-CV-544

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
______________________________________/
OPINION
This is an action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C.
§ 405(g), to review a final decision of the Commissioner of Social Security denying Plaintiff’s claim
for Disability Insurance Benefits (DIB) under Title II of the Social Security Act. On August 19,
2016, the parties agreed to proceed in this Court for all further proceedings, including an order of
final judgment. (ECF No. 13). Section 405(g) limits the Court to a review of the administrative
record and provides that if the Commissioner’s decision is supported by substantial evidence it shall
be conclusive. The Commissioner has found that Plaintiff is not disabled within the meaning of the
Act. For the reasons stated below, the Court concludes that the Commissioner’s decision is
supported by substantial evidence. Accordingly, the Commissioner’s decision is affirmed.

STANDARD OF REVIEW
The Court’s jurisdiction is confined to a review of the Commissioner’s decision and
of the record made in the administrative hearing process. See Willbanks v. Sec’y of Health and
Human Services, 847 F.2d 301, 303 (6th Cir. 1988). The scope of judicial review in a social security
case is limited to determining whether the Commissioner applied the proper legal standards in
making her decision and whether there exists in the record substantial evidence supporting that
decision. See Brainard v. Sec’y of Health and Human Services, 889 F.2d 679, 681 (6th Cir. 1989).
The Court may not conduct a de novo review of the case, resolve evidentiary
conflicts, or decide questions of credibility. See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.
1984). It is the Commissioner who is charged with finding the facts relevant to an application for
disability benefits, and her findings are conclusive provided they are supported by substantial
evidence. See 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla, but less than a
preponderance. See Cohen v. Sec’y of Dep’t of Health and Human Services, 964 F.2d 524, 528 (6th
Cir. 1992) (citations omitted). It is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Bogle v.
Sullivan, 998 F.2d 342, 347 (6th Cir. 1993). In determining the substantiality of the evidence, the
Court must consider the evidence on the record as a whole and take into account whatever in the
record fairly detracts from its weight. See Richardson v. Sec’y of Health and Human Services, 735
F.2d 962, 963 (6th Cir. 1984).
As has been widely recognized, the substantial evidence standard presupposes the
existence of a zone within which the decision maker can properly rule either way, without judicial
interference. See Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (citation omitted). This

2

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 32 years of age on her alleged disability onset date. (PageID.58). She
successfully completed college and worked previously as a file clerk. (PageID.91, 343-44).
Plaintiff applied for benefits on March 14, 2012, alleging that she had been disabled since June 8,
2007, due to reflex sympathetic dystrophy in her left foot and right shoulder, depression, and
anxiety. (PageID.310-11, 337). Plaintiff’s application was denied, after which time she requested
a hearing before an Administrative Law Judge (ALJ). (PageID.138-308). On August 19, 2013,
Plaintiff appeared before ALJ Paul Jones with testimony being offered by Plaintiff and a vocational
expert. (PageID.81-124). In a written decision dated August 27, 2013, the ALJ determined that
Plaintiff was not disabled. (PageID.156-63). The Appeals Council subsequently remanded the
matter to the ALJ who, after another hearing, denied Plaintiff’s claim in a written decision dated
March 13, 2015. (PageID.48-80). The Appeals Council declined to review the ALJ’s decision,
rendering it the Commissioner’s final decision in the matter. (PageID.38-42). Plaintiff subsequently
initiated this pursuant to 42 U.S.C. § 405(g), seeking judicial review of the ALJ’s decision.

3

ANALYSIS OF THE ALJ’S DECISION
The social security regulations articulate a five-step sequential process for evaluating
disability. See 20 C.F.R. §§ 404.1520(a-f), 416.920(a-f).1 If the Commissioner can make a
dispositive finding at any point in the review, no further finding is required. See 20 C.F.R. §§
404.1520(a), 416.920(a).

The regulations also provide that if a claimant suffers from a

nonexertional impairment as well as an exertional impairment, both are considered in determining
her residual functional capacity. See 20 C.F.R. §§ 404.1545, 416.945.
The burden of establishing the right to benefits rests squarely on Plaintiff’s shoulders,
and she can satisfy her burden by demonstrating that her impairments are so severe that she is unable
to perform her previous work, and cannot, considering her age, education, and work experience,
perform any other substantial gainful employment existing in significant numbers in the national
economy. See 42 U.S.C. § 423(d)(2)(A); Cohen, 964 F.2d at 528. While the burden of proof shifts
to the Commissioner at step five of the sequential evaluation process, Plaintiff bears the burden of
proof through step four of the procedure, the point at which her residual functioning capacity (RFC)
is determined. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Walters v. Comm’r of Soc. Sec.,

1

1. An individual who is working and engaging in substantial gainful activity will not be found to be “disabled”
regardless of medical findings (20 C.F.R. §§ 404.1520(b), 416.920(b));
2. An individual who does not have a “severe impairment” will not be found “disabled” (20 C.F.R. §§ 404.1520(c),
416.920(c));
3. If an individual is not working and is suffering from a severe impairment which meets the duration requirement and
which “meets or equals” a listed impairment in Appendix 1 of Subpart P of Regulations No. 4, a finding of “disabled”
will be made without consideration of vocational factors. (20 C.F.R. §§ 404.1520(d), 416.920(d));

4. If an individual is capable of performing her past relevant work, a finding of “not disabled” must be made (20 C.F.R.
§§ 404.1520(e), 416.920(e));
5. If an individual’s impairment is so severe as to preclude the performance of past work, other factors including age,
education, past work experience, and residual functional capacity must be considered to determine if other work can
be performed (20 C.F.R. §§ 404.1520(f), 416.920(f)).

4

127 F.3d 525, 528 (6th Cir. 1997) (ALJ determines RFC at step four, at which point claimant bears
the burden of proof).
The ALJ determined that Plaintiff suffers from: (1) left foot reflex sympathetic
dysfunction (RSD); (2) bilateral shoulder dysfunction; (3) affective disorder; and (4) anxiety
disorder, severe impairments that whether considered alone or in combination with other
impairments, failed to satisfy the requirements of any impairment identified in the Listing of
Impairments detailed in 20 C.F.R., Part 404, Subpart P, Appendix 1. (PageID.50-53). With respect
to Plaintiff’s residual functional capacity, the ALJ found that Plaintiff retained the ability to perform
sedentary work subject to the following limitations: (1) she can only occasionally reach overhead
bilaterally; (2) she is limited to simple, routine, and repetitive tasks; and (3) she is limited to jobs
with only occasional changes in the work setting and only occasional public interaction.
(PageID.53).
The ALJ found that Plaintiff was unable to perform her past relevant work at which
point the burden of proof shifted to the Commissioner to establish by substantial evidence that a
significant number of jobs exist in the national economy which Plaintiff could perform, her
limitations notwithstanding. See Richardson, 735 F.2d at 964. While the ALJ is not required to
question a vocational expert on this issue, “a finding supported by substantial evidence that a
claimant has the vocational qualifications to perform specific jobs” is needed to meet the burden.
O’Banner v. Sec’y of Health and Human Services, 587 F.2d 321, 323 (6th Cir. 1978) (emphasis
added). This standard requires more than mere intuition or conjecture by the ALJ that the claimant
can perform specific jobs in the national economy. See Richardson, 735 F.2d at 964. Accordingly,
ALJs routinely question vocational experts in an attempt to determine whether there exist a

5

significant number of jobs which a particular claimant can perform, her limitations notwithstanding.
Such was the case here, as the ALJ questioned a vocational expert.
The vocational expert testified that there existed approximately 150,000 jobs in the
national economy which an individual with Plaintiff’s RFC could perform, such limitations
notwithstanding. (PageID.58-59). This represents a significant number of jobs. See Born v. Sec’y
of Health and Human Services, 923 F.2d 1168, 1174 (6th Cir. 1990); Hall v. Bowen, 837 F.2d 272,
274 (6th Cir. 1988); Martin v. Commissioner of Social Security, 170 Fed. Appx. 369, 374 (6th Cir.,
Mar. 1, 2006).

I.

The ALJ Properly Evaluated the Medical Evidence
On May 11, 2012, Plaintiff participated in a consultive psychological examination

conducted by Leonard McCulloch, LLP. (PageID.476-85). On May 25, 2012, Plaintiff participated
in a consultive physical examination conducted by Dr. Karen Krieger. (PageID.486-91). The ALJ
afforded limited weight to the opinions expressed by these consultive examiners. Plaintiff argues
that she is entitled to relief because the ALJ erred by affording greater weight to the opinions
expressed by other medical professionals.
McCulloch reported that Plaintiff’s “abilities to understand, remember, and carry out
simple instructions like on the MSE are opinioned to not be severely impacted but moderate
weaknesses are seen in areas of attention, concentration, short term memory, and processing
information in a novel fashion and in translating abstract proverb material.” (PageID.484).
McCulloch further “opinioned” that Plaintiff’s ability to “respond to others appropriately, including
coworkers and supervisors,” was “severely impacted.” (PageID.484). McCulloch concluded that

6

“it is opinioned that no serious employer would hire” Plaintiff and, furthermore, that Plaintiff “is in
very strong need” of mental health therapy. (PageID.484).
Because McCulloch examined Plaintiff on only one occasion his opinions are not
entitled to any particular weight or deference. See, e.g., Kornecky v. Commissioner of Social
Security, 167 Fed. Appx. 496, 506-07 (6th Cir. 2006). The ALJ nevertheless afforded “partial
weight” to McCulloch’s opinion as evidenced by the ALJ’s determination that Plaintiff was limited
to simple, routine, and repetitive tasks and jobs with only occasional changes in the work setting and
only occasional public interaction. (PageID.53, 56). As for McCulloch’s opinion that Plaintiff’s
ability to “respond to others appropriately” was “severely impacted,” the ALJ observed that the term
“severely impacted” is “vague and difficult to quantify, unlike the defined terms used by the
Administration.” (PageID.56). As for McCulloch’s opinion that “no serious employer would hire”
Plaintiff, the ALJ correctly rejected such on the ground that whether Plaintiff is disabled is a matter
reserved to the Commissioner. See 20 C.F.R. § 404.1527(d)(1).
The ALJ’s rationale for affording limited weight to McCulloch’s opinion is supported
by substantial evidence. Furthermore, to the extent that McCulloch opined that Plaintiff is more
limited than the ALJ recognized, such is contradicted by the medical evidence. While Plaintiff
acknowledged that she has Blue Cross Blue Shield health insurance that covers mental health
treatment, the record contains no indication that Plaintiff has opted to receive treatment.
(PageID.95). Thus, no mental health professional who has regularly treated Plaintiff has expressed
an opinion contrary to the ALJ’s RFC. There is also evidence that when Plaintiff has been
prescribed medications to treat her depression and anxiety, Plaintiff has failed to regularly take such.

7

(PageID.393, 556). The Court, therefore, discerns no error by the ALJ in his assessment of Mr.
McCulloch’s opinions.
The ALJ afforded “little weight” to Dr. Krieger’s opinions on the ground that the
doctor’s “impressions do not quantify the scope of [Plaintiff’s] physical impairment.” (PageID.57).
As the ALJ noted, Dr. Krieger’s “basic conclusions are that ‘claimant claims stuff.’” (PageID.57).
While not artfully stated, the ALJ is correct that Dr. Krieger noted Plaintiff’s many allegations of
severe pain and limitation. Nevertheless, Dr. Krieger did not express an opinion or make any
findings on physical examination that are inconsistent with Plaintiff’s RFC. (PageID.486-92). The
doctor did, however, note that Plaintiff was “uncooperative” and exhibited “poor effort” during the
examination. (PageID.486).
Moreover, the medical evidence does not support Plaintiff’s extreme allegations.
While Plaintiff has been diagnosed with reflex sympathetic dystrophy of the left foot and right
shoulder, there is no objective evidence which supports the argument that such limits her to an
extent greater than that recognized by the ALJ. To the contrary, the evidence indicates that Plaintiff
responded quite well to physical therapy and has been treated with conservative methods such as
physical therapy, medication, and exercise. (PageID.390-475, 494-586). In sum, the Court discerns
no error in the ALJ’s assessment of the opinions in question.

II.

The ALJ Properly Evaluated Plaintiff’s Impairments
As noted above, the ALJ determined that Plaintiff suffers from multiple severe

impairments. Plaintiff argues, however, that she is entitled to relief because the ALJ failed to find
that she also suffered from additional mental impairments. At step two of the sequential disability

8

analysis articulated above, the ALJ must determine whether the claimant suffers from a severe
impairment. The Sixth Circuit has held that where the ALJ finds the presence of a severe
impairment at step two and proceeds to continue through the remaining steps of the analysis, the
alleged failure to identify as severe some other impairment constitutes harmless error so long as the
ALJ considered the entire medical record in rendering his decision. See Maziarz v. Sec’y of Health
and Human Services, 837 F.2d 240, 244 (6th Cir. 1987); Kirkland v. Commissioner of Social
Security, 528 Fed. Appx. 425, 427 (6th Cir., May 22, 2013) (“so long as the ALJ considers all the
individual’s impairments, the failure to find additional severe impairments. . .does not constitute
reversible error”). A review of the ALJ’s decision makes clear that he considered the entire record
and all Plaintiff’s impairments and limitations. Moreover, as discussed above, the ALJ’s RFC
assessment is supported by substantial evidence. Accordingly, this argument is rejected.

III.

The ALJ Properly Relied on the Vocational Expert’s Testimony
Plaintiff also argues that the ALJ’s finding at Step V of the sequential evaluation

process is unsupported by the evidence. While the ALJ may satisfy his burden through the use of
hypothetical questions posed to a vocational expert, such questions must accurately portray
Plaintiff’s physical and mental impairments. See Cline v. Comm’r of Soc. Sec., 96 F.3d 146, 150
(6th Cir. 1996). The hypothetical question which the ALJ posed to the vocational expert simply
asked whether there existed jobs which an individual could perform consistent with Plaintiff’s RFC,
to which the vocational expert indicated that there existed in the national economy approximately
150,000 such jobs. The ALJ’s RFC determination is supported by substantial evidence and there
was nothing improper or incomplete about the hypothetical questions the ALJ posed to the

9

vocational expert. The Court concludes, therefore, that the ALJ properly relied upon the vocational
expert’s testimony.

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

Date: February 8, 2017

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

10