Nettleman 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-692
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) and Supplemental Security Income (SSI) under Titles II and
XVI of the Social Security Act. On August 26, 2016, the parties agreed to proceed in this Court for
all further proceedings, including an order of final judgment. (ECF No. 9). 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 40 years of age on her alleged disability onset date. (PageID.181). She
successfully completed high school and worked previously as a care/health aide, rehabilitation
technician, and activities coordinator. (PageID.65). Plaintiff applied for benefits on February 21,
2014, alleging that she had been disabled since January 26, 2014, due to chronic obstructive
pulmonary disorder (COPD) and diabetes. (PageID.181-95, 222). Plaintiff’s application was
denied, after which time she requested a hearing before an Administrative Law Judge (ALJ).
(PageID.108-79). On May 13, 2015, Plaintiff appeared before ALJ Thomas English with testimony
being offered by Plaintiff and a vocational expert. (PageID.72-106). In a written decision dated
May 28, 2015, the ALJ determined that Plaintiff was not disabled. (PageID.58-67). The Appeals
Council declined to review the ALJ’s decision, rendering it the Commissioner’s final decision in the
matter. (PageID.40-45). 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 carpal tunnel syndrome and COPD,
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.60-62). With respect to Plaintiff’s residual
functional capacity, the ALJ found that Plaintiff retained the ability to perform light work subject
to the following limitations: (1) she can carry 10 pounds frequently and 20 pounds only
occasionally; (2) she can only occasionally use hand controls; (3) she can frequently perform
handling and fingering activities; (4) she can only occasionally balance, stoop, kneel, crouch, crawl,
and climb ramps/stairs; (5) she can never climb ladders or scaffolds; (6) she must avoid concentrated
exposure to weather, humidity, wetness, and temperature extremes; and (7) she must avoid even
moderate exposure to dust, odors, fumes, and other pulmonary irritants. (PageID.62).
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, her limitations notwithstanding.
Such was the case here, as the ALJ questioned a vocational expert.
The vocational expert testified that there existed approximately 210,000 jobs in the
national economy which an individual with Plaintiff’s RFC could perform, such limitations
notwithstanding. (PageID.93-98). 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).
Plaintiff is not Entitled to a Sentence Six Remand
As part of her request to obtain review of the ALJ’s decision, Plaintiff submitted to
the Appeals Council additional evidence which was not presented to the ALJ. (PageID.40-44, 384433). The Appeals Council received the evidence into the record and considered it before declining
to review the ALJ’s determination. This Court, however, is precluded from considering such
material. In Cline v. Commissioner of Social Security, 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) (quoting Cline, 96 F.3d at 148).
If Plaintiff can demonstrate, however, that this evidence is new and material, and that
good cause existed for not presenting it in the prior proceeding, 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); Financial Resources
Network, Inc. v. Brown & Brown, Inc., 2010 WL 4806902 at *30 n.29 (D. Mass., Nov. 18, 2010)
Plaintiff does not Suffer from a Listed Impairment
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 argues that the ALJ failed to properly consider Section 3.00
(Respiratory System) of the Listings. The only specific portion of the Listing which Plaintiff has
identified is Section 3.02(A) (Chronic Pulmonary Insufficiency) of the Listings. To the extent that
Plaintiff seeks relief based on some other, unspecified, portion of the Listing, any such argument has
been waived. See, e.g., Zizzo v. Commissioner of Social Security, 2013 WL 5291663 at *8 (E.D.
Mich., Sept. 19, 2013); Crosby v. Abbot, 2013 WL 4507903 at *5 (E.D. Mich., Aug. 23, 2013).
Section 3.02(A) provides as follows:
Chronic obstructive pulmonary disease, due to any cause, with the
FEV1 equal to or less than the values specified in table I
corresponding to the person’s height without shoes.
20 C.F.R., Part 404, Subpart P, Appendix 1, § 3.02(A).
Plaintiff’s height without shoes is 61 inches. (PageID.298). According to Table I,
to satisfy this Listing, Plaintiff’s FEV1 must be equal to or less than 1.15 liters. 20 C.F.R., Part 404,
Subpart P, Appendix 1, § 3.02(A).
The record before the ALJ contained pulmonary test results which do not satisfy the
Listing, as the ALJ correctly observed. (PageID.63, 298-313). Specifically, this particular test
produced FEV1 results ranging from 1.49 liters to 1.75 liters. (PageID.298). Plaintiff faults the ALJ
for failing to discuss the results of other pulmonary tests. Specifically, Plaintiff makes reference to
five other pulmonary test results. As discussed below, however, these test results do not advance
Plaintiff makes reference to the results of three pulmonary tests, occurring between
May 2014 and September 2014, which produced FEV1 results of 1.21, 1.34, and 1.92 liters.
(PageID.373-81, 418-20). First, this evidence was not presented to the ALJ. More importantly,
however, the results of these tests do not satisfy the Listing.
Plaintiff next makes reference to two pulmonary tests, occurring in December 2014
and April 2015 which produced FEV1 results of 0.92 and 1.12, respectively.2 (PageID.365, 411).
The April 2015 results were not presented to the ALJ. As for the December 2014 pulmonary function test, the record
does not contain the required supporting documentation, but instead contains only a notation regarding such.
To be found disabled pursuant to the Listings, Plaintiff must not only satisfy the Listing’s
requirements, but her impairment must also satisfy the 12-month duration requirement. See 20
C.F.R. §§ 404.1520(d), 416.920(d); Gambill v. Bowen, 823 F.2d 1009, 1011 (6th Cir. 1987);
Brooklier v. Commissioner of Social Security, 2015 WL 631958 at *3 (E.D. Mich., Feb. 13, 2015).
Because pulmonary function tests, performed within 12 months of the two test results in question,
produced results that do not satisfy the Listing, the test results cited by Plaintiff do not satisfy the
Listing. See Colon v. Commissioner of Social Security, 2010 WL 1292762 at *4 (W.D. Mich., Mar.
11, 2010) (“Plaintiff did not satisfy the 12-month durational requirement because his June 20, 2006
pulmonary function tests, administered less than one year later, produced forced expiratory volume
(FEV1) values that were significantly higher than those necessary to meet the requirements of
In sum, Plaintiff has failed to meet her burden that she satisfies a listed impairment.
Accordingly, the Court finds that the ALJ’s conclusion in this regard is supported by substantial
The ALJ Properly Evaluated the Medical Evidence
Plaintiff next faults the ALJ for failing to afford appropriate weight to the opinions
of her treating physician, Dr. Nadine Potempa. The Court is not persuaded.
In this context, a medical opinion is defined as “statements from physicians and
psychologists or other acceptable medical sources that reflect judgments about the nature and
severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can
still do despite impairment(s), and your physical or mental restrictions.”
20 C.F.R. §§
404.1527(a)(2); 416.927(a)(2). On the other hand, observations and treatment notes do not
constitute medical opinions. See, e.g., Miller v. Commissioner of Social Security, 2013 WL 1283871
at *2 (N.D. Ohio, Mar. 26, 2013) (a doctor’s “observations in the treatment notes were not entitled
to controlling weight because they offered no opinion regarding limitations caused by an
As Defendant correctly asserts, Dr. Potempa did not offer any opinion which is
inconsistent with the ALJ’s decision. Moreover, while the doctor suggested that Plaintiff may need
to use oxygen and an inhaler as needed, such is not inconsistent with the ALJ’s RFC finding or the
jobs identified by the vocational expert. The scant medical record presented to the ALJ reveals that
while Plaintiff experienced, in January 2014, an acute exacerbation of her condition, subsequent
testing and examination were largely unremarkable. (PageID.256, 260, 298-313, 331-34, 362, 383).
Furthermore, subsequent examinations revealed that Plaintiff’s condition improved with medication
and treatment. (PageID.363, 366, 375). Accordingly, this argument is rejected.
The ALJ Properly Assessed Plaintiff’s Emotional Impairments
Plaintiff next argues that the ALJ erred by failing to assess her “psychological
condition.” The ALJ recognized that Plaintiff experienced anxiety, but concluded that such “does
not cause more than minimal limitation in [Plaintiff’s] ability to perform basic mental work activities
and is therefore non-severe.” (PageID.61). The record before the ALJ amply supports this
conclusion. Plaintiff has not sought treatment for anxiety or any other emotional impairment and
there is nothing in the record to support Plaintiff’s argument that she suffers from a severe emotional
impairment. This argument is, therefore, rejected.
The ALJ Properly Relied on the Testimony of a Vocational Expert
Finally, Plaintiff 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 a significant number of 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 vocational expert. The Court
concludes, therefore, that the ALJ properly relied upon the vocational expert’s testimony.
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: May 18, 2017
/s/ Ellen S. Carmody
ELLEN S. CARMODY
United States Magistrate Judge
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