Nelson v. Commissioner of Social Security
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
Hon. Ellen S. Carmody
Case No. 1:16-CV-642
COMMISSIONER OF SOCIAL
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 17,
2016, the parties agreed to proceed in this Court for all further proceedings, including an order of
final judgment. (ECF No. 8). 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
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 57 years of age on her alleged disability onset date. (PageID.153). She
possesses a tenth grade education and worked previously as a grocery clerk and a grocery stock
clerk. (PageID.46, 61). Plaintiff applied for benefits on December 6, 2013, alleging that she had
been disabled since October 30, 2012, due to high cholesterol, chronic obstructive pulmonary
disease (COPD), depression, and borderline diabetes. (PageID.153-59, 190). Plaintiff’s application
was denied, after which time she requested a hearing before an Administrative Law Judge (ALJ).
(PageID.89-151). On June 30, 2015, Plaintiff appeared before ALJ Nicholas Ohanesian with
testimony being offered by Plaintiff and a vocational expert. (PageID.52-82). In a written decision
dated July 17, 2015, the ALJ determined that Plaintiff was not disabled. (PageID.39-48). The
Appeals Council declined to review the ALJ’s determination, rendering it the Commissioner’s final
decision in the matter. (PageID.20-24). Plaintiff subsequently initiated this pursuant to 42 U.S.C.
§ 405(g), seeking judicial review of the ALJ’s decision.
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. §§
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. 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),
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)).
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 chronic obstructive pulmonary
disease, a severe impairment 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.41-42). With respect
to Plaintiff’s residual functional capacity, the ALJ found that Plaintiff retained the ability to perform
light work limited to only frequent exposure to cold and pulmonary irritants. (PageID.42).
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
significant number of jobs which a particular claimant can perform, his limitations notwithstanding.
Such was the case here, as the ALJ questioned a vocational expert.
The vocational expert testified that there existed approximately 4,200,000 jobs in the
national economy which an individual with Plaintiff’s RFC could perform, such limitations
notwithstanding. (PageID.65-71). 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). The vocational expert also testified that if Plaintiff were further limited to sedentary
work with only frequent exposure to cold and pulmonary irritants there existed approximately
2,900,000 jobs which Plaintiff could still perform. The ALJ concluded, therefore, that Plaintiff was
not entitled to disability benefits.
The ALJ’s RFC Determination is Supported by Substantial Evidence
Plaintiff argues that she is entitled to relief because the ALJ “erred in evaluating [her]
residual functional capacity.” Specifically, Plaintiff appears to argue that she cannot perform work
on a regular and continuing basis, but instead can perform activities for only ten minutes before
having to sit and rest for “probably” fifteen minutes. (ECF No. 16 at PageID.371-72). The meager
evidence of record, however, does not support the proposition that Plaintiff is so severely limited.
X-rays of Plaintiff’s chest revealed no evidence of infiltrates, effusion, or acute
disease. (PageID.269, 275). Treatment notes indicate that use of an inhaler has been “very helpful”
for Plaintiff. (PageID.270, 285, 294). A consultive examination revealed that Plaintiff’s lungs were
“clear throughout but with diminished breath sounds and prolonged expiratory phase.”
(PageID.316). The doctor further observed that Plaintiff “had no cyanosis, clubbing, or pursed lip
breathing. . .did not cough during the assessment. . .[and] did not appear dyspneic as a result of the
routine exam maneuvers.” (PageID.316). The doctor concluded that “it does appear that [Plaintiff]
would not be able to exert beyond a sedentary or light level.” (PageID.316). The medical evidence
is not inconsistent with the ALJ’s RFC determination.
Plaintiff’s reported activities are likewise not inconsistent with the ALJ’s RFC
assessment. Plaintiff reported that she performs “basic housework and shopping” (315) Plaintiff’s
sister-in-law reported that Plaintiff performs a variety of activities including washing laundry, house
cleaning, shopping, camping, and attending sporting events. (PageID.205-09). She also reported
that Plaintiff can walk one-half block and lift 30 pounds. (PageID.210). Treatment notes dated
February 17, 2015, indicate that Plaintiff “recently started smoking again.” (PageID.335).
In sum, the ALJ’s RFC determination is supported by substantial evidence.
Moreover, even if Plaintiff were further limited to sedentary work, the vocational expert testified
that there existed a significant number of jobs which Plaintiff could perform at such a functional
level. This argument is, therefore, rejected.
Plaintiff does not Satisfy the Listings
The Listing of Impairments, detailed in 20 C.F.R., Part 404, Subpart P, Appendix 1,
identifies various impairments which, if present to the severity detailed therein, result in a finding
that the claimant is disabled. Plaintiff also argues that she satisfies Section 3.02 (Chronic Pulmonary
Insufficiency) of the Listings. Plaintiff’s argument fails for two reasons.
First, Plaintiff’s argument is premised upon the consideration of evidence which was
not presented to the ALJ. This Court is precluded from considering such material. See Cline v.
Commissioner of Social Security, 96 F.3d 146-48 (6th Cir. 1996). 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. To satisfy the materiality requirement, Plaintiff must show
that there exists a reasonable probability that the Commissioner would have reached a different
result if presented with the new evidence. Sizemore v. Secretary of Health and Human Serv’s, 865
F.2d 709, 711 (6th Cir. 1988). Plaintiff bears the burden of making these showings. See Hollon ex
rel. Hollon v. Commissioner of Social Security, 447 F.3d 477, 483 (6th Cir. 2006). Plaintiff has not
requested that the Court remand this matter for consideration of this evidence. Plaintiff has,
therefore, waived any such argument. See, e.g., Porzillo v. Department of Health and Human
Services, 369 Fed. Appx. 123, 132 (Fed. Cir., Mar. 12, 2010) (claimant “waves any arguments that
are not developed”); Shaw v. AAA Engineering & Drafting, Inc., 213 F.3d 519, 537 n.25 (10th Cir.
2000) (arguments “superficially” developed are waived).
Plaintiff bears the burden to demonstrate that she satisfies the requirements of a listed
impairment. See Kirby v. Comm’r of Soc. Sec., 2002 WL 1315617 at *1 (6th Cir., June 14, 2002).
An impairment satisfies a listing, however, “only when it manifests the specific findings described
in all of the medical criteria for that particular impairment.” Lambert v. Commissioner of Social
Security, 2013 WL 5375298 at *8 (W.D. Mich., Sept. 25, 2013) (citing 20 C.F.R. §§ 404.1525(d)
and 416.925(d)). The ALJ specifically considered whether Plaintiff satisfied Section 3.02 of the
Listings, but concluded that the evidence did not satisfy the Listings’ requirements. (PageID.42).
Plaintiff has failed to articulate any argument that the ALJ’s analysis and conclusion is not supported
by substantial evidence. Accordingly, this argument is rejected.
The ALJ Properly Evaluated the Medical Evidence
Plaintiff asserts that the ALJ “failed to give adequate weight to the opinion of [her]
treating physician.” 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 “wellsupported by medically acceptable clinical and laboratory diagnostic techniques” and (2) the opinion
“is not inconsistent with the other substantial evidence in the case record.”
Commissioner of Social Security, 710 F.3d 365, 375-76 (6th Cir. 2013) (quoting 20 C.F.R. §
Plaintiff has failed to develop this argument. Plaintiff has failed to identify any
opinion by her treating physician to which the ALJ was required to accord deference. While
Plaintiff notes that her doctor suggested that she “cannot do a very physical job” and is allegedly
incapable of performing work on a regular and sustained basis, the ALJ need not defer to such
opinions as they are vague and concern the ultimate question whether Plaintiff is disabled, a matter
reserved to the commissioner. See 20 C.F.R. § 404.1527(d)(1). Accordingly, this argument is
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
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