Kimble v. Commissioner of Social Security

Filing 15

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

JEFFREY KIMBLE,
Plaintiff,

Hon. Ellen S. Carmody

v.
Case No. 1:16-cv-755
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 Supplemental Security Income (SSI) under Title XVI of the Social Security Act. The parties
have agreed to proceed in this Court for all further proceedings, including an order of final
judgment. (ECF No. 11). 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.

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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

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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 53 years of age on his alleged disability onset date. (PageID.195). He
successfully completed high school and previously worked as a cleaner. (PageID.56-70-71).
Plaintiff applied for benefits on January 14, 2011, alleging that he had been disabled since December
31, 2008, due to neuropathy. (PageID.195-200, 242). Plaintiff’s application was denied, after which
time he requested a hearing before an Administrative Law Judge (ALJ). (PageID.100-86). On July
16, 2015, Plaintiff appeared before ALJ William Reamon with testimony being offered by Plaintiff
and a vocational expert. (PageID.62-98). In a written decision dated July 31, 2015, the ALJ
concluded that Plaintiff was not disabled. (PageID.44-57). The Appeals Council declined to review
the ALJ’s determination, rendering it the Commissioner’s final decision in the matter. (PageID.3438). Plaintiff subsequently initiated this appeal pursuant to 42 U.S.C. § 405(g), seeking judicial
review of the ALJ’s decision.

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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
his 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 he can satisfy his burden by demonstrating that his impairments are so severe that he is unable
to perform his previous work, and cannot, considering his 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, Plaintiff bears the burden of proof through step four of the
procedure, the point at which his residual functioning capacity (RFC) is determined. See Bowen v.

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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), 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)).

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Yuckert, 482 U.S. 137, 146 n.5 (1987); Walters v. Comm’r of Soc. Sec., 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 diffuse and unspecified arthropathies
and arthralgias, 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.46-48). With respect
to Plaintiff’s residual functional capacity, the ALJ determined that Plaintiff retained the capacity to
perform light work subject to the following limitations: (1) he cannot climb ladders, ropes, or
scaffolds; (2) he can occasionally balance, stoop, kneel, crouch, crawl, and climb ramps/stairs; and
(3) he cannot be exposed to unprotected heights. (PageID.48). At the administrative hearing, a
vocational expert testified that Plaintiff, if limited to this extent, could still perform his past relevant
work as a cleaner. (PageID.94-97). Accordingly, the ALJ concluded that Plaintiff was not disabled.

I.

The ALJ Properly Evaluated the Opinion Evidence
Plaintiff argues that he is entitled to relief because the ALJ failed to afford

appropriate weight to the opinions expressed by Brandon Younger, a physical therapist, and Dr.
Darren Grunwaldt, his treating physician. The ALJ afforded little weight to the opinions of these
care providers, a determination which is supported by substantial evidence.

A.

Dr. Grunwaldt

On March 31, 2014, Dr. Grunwaldt completed a form report regarding Plaintiff’s
impairments. (PageID.621-24). In response to a question which asked the doctor to report how long

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Plaintiff could continuously sit, the doctor reported, “unknown but would guess” more than 2 hours.
(PageID.622). In response to a question which asked the doctor to report how long Plaintiff could
continuously stand, the doctor reported, “unknown but would guess” 30 minutes. (PageID.622).
The doctor reported that during a normal workday with normal breaks, Plaintiff could sit for at least
6 hours and stand/walk for less than 2 hours total. (PageID.622). The doctor reported that Plaintiff
required a job with a sit/stand option. (PageID.623). In response to a question inquiring how much
Plaintiff could lift, the doctor responded, “unknown.” (PageID.623). The doctor also reported that
he was unsure whether Plaintiff was a malingerer. (PageID.621). On May 12, 2015, Dr. Grunwaldt
completed another form report regarding Plaintiff’s impairments. (PageID.1018-21). The doctor
provided similar responses, including that he either did not know or was “guessing” as to the extent
of Plaintiff’s functional ability in numerous categories. (PageID.1018-21). The doctor further
recommended that Plaintiff undergo a functional capacity examination to more accurately
assessment his functional limitations. (PageID.1021).
The treating physician doctrine recognizes that medical professionals who have a
long history of caring for a claimant and his 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.”

Gayheart v.

Commissioner of Social Security, 710 F.3d 365, 375-76 (6th Cir. 2013) (quoting 20 C.F.R. §
404.1527).
Such deference is appropriate, however, only where the particular opinion “is based

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upon sufficient medical data.” Miller v. Sec’y of Health and Human Services, 1991 WL 229979 at
*2 (6th Cir., Nov. 7, 1991) (citing Shavers v. Sec’y of Health and Human Services, 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 v. Sec’y of Health and Human Services, 1991
WL 229979 at *2 (6th Cir., Nov. 7, 1991) (citing Shavers v. Sec’y of Health and Human Services,
839 F.2d 232, 235 n.1 (6th Cir. 1987)); Cutlip v. Sec’y of Health and Human Services, 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.
Commissioner of Social Security, 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. Gayheart, 710 F.3d at 376-77.
If the ALJ affords less than controlling weight to a treating physician’s opinion, the
ALJ must still determine the weight to be afforded such. Id. at 376. In doing so, the ALJ must
consider the following factors: (1) length of the treatment relationship and frequency of the
examination, (2) nature and extent of the treatment relationship, (3) supportability of the opinion,

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(4) consistency of the opinion with the record as a whole, (5) the specialization of the treating
source, and (6) other relevant factors. Id. (citing 20 C.F.R. § 404.1527). While the ALJ is not
required to explicitly discuss each of these factors, the record must nevertheless reflect that the ALJ
considered those factors relevant to his assessment. See, e.g., Oldham v. Astrue, 509 F.3d 1254,
1258 (10th Cir. 2007); Undheim v. Barnhart, 214 Fed. Appx. 448, 450 (5th Cir., Jan. 19, 2007).
To the extent that Dr. Grunwaldt’s opinions are inconsistent with the ALJ’s RFC
finding, the medical record supports the ALJ’s assessment. While the results of EMG testing were
“suggestive of” polyneuropathy, laboratory analysis of Plaintiff’s blood revealed no evidence that
Plaintiff was experiencing polyneuropathy. (PageID.401-02, 427, 481). The results of physical
examinations were generally unremarkable. (PageID.507, 535, 740). MRIs of Plaintiff’s cervical
and thoracic spine revealed only “very minimal” degenerative changes. (PageID.472). Physical
therapy treatment notes indicated that Plaintiff was not experiencing strength deficits and otherwise
experienced an improvement in his symptoms. (PageID.700, 706). Treatment notes also indicated
that Plaintiff was not taking his prescribed medications as directed. (PageID.608, 740). The ALJ
discounted Dr. Grunwaldt’s opinions because such were inconsistent with the record and,
furthermore, because the doctor, by his own admission, simply guessed as to Plaintiff’s functional
ability. The ALJ’s decision in this regard is supported by substantial evidence.

B.

Brandon Younger

Younger, a physical therapist, completed a form report regarding Plaintiff’s
impairments. (PageID.1012-15). Younger reported that during an 8-hour workday, Plaintiff can sit
and stand/walk less than 2 hours each. (PageID.1014). Younger reported that Plaintiff could only

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“rarely” lift/carry 10 pounds and could “never” lift/carry 20 pounds. (PageID.1014). Younger also
reported that Plaintiff could “never” look down and would need to take unscheduled breaks “every
half hour.” (PageID.1014). Finally, Younger reported that Plaintiff does not experience “good
days” and “bad days” because “all days are bad days.” (PageID.1015). The ALJ afforded little
weight to Younger’s opinions on the ground that it was inconsistent with the medical record.
(PageID.55). Because Younger is not a treating physician, his opinions are not entitled to any
particular deference. Nevertheless, the ALJ’s decision to afford little weight to Younger’s opinions
is supported by substantial evidence for the reasons articulated above.

II.

The ALJ Properly Evaluated Plaintiff’s Impairments
The ALJ determined that Plaintiff suffers from diffuse and unspecified arthropathies

and arthralgias. Plaintiff argues, however, that he is entitled to relief because the ALJ failed to find
that he also suffered from polyneuropathy. At step two of the sequential disability 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

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and limitations. Moreover, the ALJ’s RFC assessment is supported by substantial evidence.
Accordingly, this argument is rejected.

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: May 8, 2017

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

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