Dukes v. Commissioner of Social Security

Filing 17

OPINION; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RANDY M. DUKES,
Plaintiff,

Case No. 1:16-CV-872

v.
HON. JANET T. NEFF
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). Plaintiff seeks review of the Commissioner’s decision denying his claim for
disability insurance benefits (DIB) under Title II 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.
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 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
This is the second time Plaintiff’s application has reached this level of review.
Plaintiff’s DIB application was previously considered by Magistrate Judge Hugh Brenneman, Jr.
In a decision dated September 22, 2014, Judge Brenneman summarized the procedural history of
this case to that point as follows:
Plaintiff was born on June 3, 1966. He alleged a disability onset date
of February 15, 2009. Plaintiff had four or more years of college, and
had special job training at a police academy and at truck driving
school. He had previous employment as a police officer, public
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school security officer and truck driver. Plaintiff identified his
disabling conditions as post-traumatic stress disorder (PTSD),
depression, left knee acl repair, bone spurs, meniscus damage and left
hip strain. The administrative law judge (ALJ) reviewed plaintiff’s
claim de novo and entered a written decision denying benefits on
October 1, 2011. This decision, which was later approved by the
Appeals Council, has become the final decision of the Commissioner
and is now before the Court for review.
Dukes v. Comm’r of Soc. Sec., No. 1:13-cv-623 (W.D. Mich Sept. 22, 2014) (ECF No. 19,
PageID.962) (internal citations and footnotes omitted). Upon review, Judge Brenneman concluded
that the ALJ’s decision was not supported by substantial evidence. Specifically, Judge Brenneman
observed that the ALJ appeared to have used boilerplate language to discount the treating source
opinions by Dr. Hakima Aqel, M.D., and further found the ALJ had failed to provide good reasons
for assigning the opinions less than controlling weight. Judge Breneman further noted that it was
unclear whether the ALJ had considered an opinion from Dr. Darryl P. Plunkett, Ph.D, as one from
a treating source or as one from merely an examining source. Accordingly, the judge reversed and
remanded the decision of the Commissioner in order to “(1) determine whether Dr. Plunkett’s
opinion is that of a treater or an examiner, and then evaluate the opinion accordingly, and (2) reevaluate Dr. Aqel’s mental and physical RFC assessments.” Id. at PageID.971.
On December 5, 2014, pursuant to Judge Brenneman’s decision, the Appeals Council
remanded the case to the ALJ. (PageID.1132–1133.) On March 19, 2015, Plaintiff appeared with
his counsel before ALJ Donna Grit for an administrative hearing at which time both Plaintiff and
a vocational expert testified. (PageID.991–1021.) Following the hearing, the ALJ issued an
unfavorable written decision, dated July 17, 2015, concluding that Plaintiff was not disabled.
(PageID.936–988.) On May 9, 2016, the Appeals Council declined to review the ALJ’s decision,
making it the Commissioner’s final decision in the matter. (PageID.918–925.)
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Plaintiff’s insured status expired on March 31, 2015. (PageID.940.) To be eligible
for DIB under Title II of the Social Security Act, Plaintiff must establish that he became disabled
prior to the expiration of his insured status. See 42 U.S.C. § 423; Moon v. Sullivan, 923 F.2d 1175,
1182 (6th Cir. 1990).
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).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). 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. § 404.1545.
Plaintiff has the burden of proving the existence and severity of limitations caused
by his impairments and that he 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

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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));

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));

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. § 404.1520(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)).

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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 Grit determined that Plaintiff’s claim failed at the fifth step of the evaluation.
At step one, the ALJ found that Plaintiff did not engage in substantial gainful activity during the
period from his alleged disability onset date of February 15, 2009, through his date last insured of
March 31, 2015. (PageID.942.)

At step two, the ALJ determined Plaintiff had the severe

impairments of: (1) left knee pain status-post surgical repair; (2) degenerative changes of the right
shoulder; (3) a right heel spur; (4) obesity; (5) post-traumatic stress disorder (PTSD); (6) depression;
(7) and a history of substance abuse. (PageID.942.) At the third step, 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. (PageID.944–948.) At the fourth step, the ALJ determined Plaintiff
retained the RFC based on all the impairments through his date last insured:
to perform light work as defined in 20 CFR 404.1567(b) such that he
is able to lift and carry twenty pounds occasionally and ten pounds
frequently. He is able to push and/or pull up to ten pounds
occasionally. He is able to stand and/or walk two hours in an eighthour workday and sit for up to six hours of an eight-hour workday
with normal breaks. He requires the option to alternate between
sitting and standing at will. He may occasionally climb ramps and
stairs, but never ladders, ropes, or scaffolds. He may occasionally
stoop, kneel, crouch, and crawl. He must avoid unprotected heights
and dangerous machinery as well as walking on uneven surfaces. He
must not perform overhead work[.] He is limited to simple, routine,
repetitive tasks involving simple work related decisions with few, if
any, workplace changes. He may have occasional interaction with
coworkers and supervision, [sic] but must not have public interaction.
(PageID.948–949.) Continuing with the fourth step, the ALJ found that Plaintiff was unable to
perform any of his past relevant work. (PageID.977–978.) At the fifth step, the ALJ questioned the
VE to determine whether a significant number of jobs exist in the economy that Plaintiff could
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perform given his limitations. See Richardson, 735 F.2d at 964. The VE testified that Plaintiff
could perform other work as an assembler of small products (55,000 national positions) and as a
garment sorter (52,000 national positions). (PageID.1017–1020.) 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.979.)
Accordingly, the ALJ concluded that Plaintiff was not disabled from February 15,
2009, the alleged disability onset date, through March 31, 2015, the date last insured. (PageID.979.)
DISCUSSION
1.

The ALJ’s Discussion of the Medical Opinions Satisfies the Treating
Physician Rule.

As noted above, Magistrate Judge Brenneman remanded the prior decision by the
Commissioner for failure to follow the treating physician rule. On remand, the ALJ specifically
stated she had reevaluated the treating physicians and provided a lengthy discussion of their
opinions. Nevertheless, Plaintiff contends the ALJ has again violated the treating physician rule.
For reasons set out below, the Court disagrees.
By way of background, 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 his 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 provide “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.” Id. 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.
The ALJ considered four treating physician opinions. Regarding the first, a June
2010 mental RFC assessment from Dr. Hakima Aqel, the ALJ found that the medical evidence and
the record as a whole did not support the assessment. The ALJ specifically referenced Plaintiff’s
activities of daily living and a later opinion from Dr. Aqel which noted Plaintiff did not have
significant limitations in concentration, persistence or pace. The ALJ also noted that the assessment

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was internally inconsistent. (PageID.968–969.) Second, the ALJ considered a July 2010 physical
RFC assessment from Dr. Aqel and found it was entitled to only partial weight. The ALJ again noted
that the opinion was not consistent with the medical evidence of record and was further internally
inconsistent, noting for example that the doctor had opined Plaintiff could lift twenty-five pounds
frequently but only twenty-pounds occasionally. The ALJ also referenced records noting that
Plaintiff had a normal gait and lower extremity strength.

(PageID.969–970.) Third, the ALJ

considered an updated physical RFC opinion from Dr. Aqel dated July 2013 and gave it only partial
weight. The ALJ discussed records demonstrating Plaintiff had intact strength and gait, and further
evaluated the opinion against Plaintiff’s activities of daily living. (PageID.970–971.) Finally, the
ALJ considered the June 2010 mental RFC assessment from Dr. Plunkett and assigned it no weight.
(PageID.976–977.) Finding that the doctor was qualified as a treating physician, the ALJ declined
to assign it controlling weight because the opinion was internally inconsistent with the doctor’s own
treatment notes, and the record as a whole, including Plaintiff’s daily activities, did not support the
opinion.
Despite asserting that the ALJ failed to provide good reasons for assigning less than
controlling weight to these opinions, Plaintiff fails to address any of the reasons provided by the
ALJ, much less show they are not good reasons or how they are unsupported by substantial
evidence. Plaintiff complains that it would be impossible to fully discuss the opinions given the
page limits that are regularly imposed in Social Security cases. (PageID.1954.) The Court notes
that Plaintiff’s brief includes a lengthy recitation of the facts, many of which are unrelated to the
specific claims he raises. Moreover, the brief contains at least one-half page of empty space.

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(PageID.1953.) Finally, Plaintiff could have sought, but did not seek, permission for an increase in
page limits in this case.
The only specific issue that Plaintiff raises with regard to the medical opinions is the
fact that the Commissioner often discounts opinions because they are checkmark opinions with no
accompanying explanation. But the ALJ in this case did not discount the treating physician opinions
because they were made on checkmark forms.

Plaintiff then attacks the Social Security

Administration’s general methods for evaluating medical opinions. He notes that “[i]n the current
logic of the Social Security Administration, any visit for treatment in which a person is not openly
psychotic, violent, or suicidal, or, in the physical realm, not bleeding to death or demonstrating
massive physical dysfunction, apparently is enough to discredit the opinions of long-time treating
physicians.” (PageID.1956.) This baseless assertion does nothing to advance the claim asserted.
Nonetheless, the Court has thoroughly examined the record and finds that the ALJ’s reasoning is
sound and supported by substantial evidence.
The thrust of Plaintiff’s argument is that the ALJ gave too much weight to the nonexamining agency physicians. Plaintiff’s argument is fairly muddled. Plaintiff references Gayheart
v. Comm’r of Soc. Sec. and notes the court’s statement in that case that “opinions from nontreating
and nonexamining sources are never assessed for ‘controlling weight.’ The Commissioner instead
weighs these opinions based on the examining relationship (or lack thereof), specialization,
consistency, and supportability, but only if a treating-source opinion is not deemed controlling. 20
C.F.R. § 404.1527(c). Other factors ‘which tend to support or contradict the opinion’ may be
considered in assessing any type of medical opinion. Id. § 404.1527(c)(6).” Gayheart, 710 F.3d at
376.

Plaintiff then asserts that “[w]hile the ALJ assigned ‘considerable’ and not ‘controlling’

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weight to the non-examining psychologists, that semantic difference does not obscure the fact that
her Decision rests almost solely upon their opinions as opposed to the multiple opinions described
above on the first two pages of the Argument. Thus the good reasons required by 20 C.F.R. Section
404.1527(d)(2)(2004) to bypass the opinion of a treating physician simply are not present here.”
(PageID.1957.)
In essence, Plaintiff claims the ALJ could not assign greater weight to the opinions
of the non-examining agency consultants than to the opinions of his treating and examining sources
without violating the treating physician rule. Plaintiff is mistaken. It is true that, as a general matter,
the Commissioner will give “more weight to medical opinions from [a claimant’s] treating sources,
since these sources are likely to be the medical professionals most able to provide a detailed,
longitudinal picture of [a claimant’s] medical impairment(s) and may bring a unique perspective to
the medical evidence that cannot be obtained from the objective medical findings alone or from
reports of individual examinations, such as consultative examinations or brief hospitalizations.” 20
C.F.R. § 404.1527(c)(2). But this is by no means as rigid a rule as Plaintiff would apparently prefer.
To the contrary, an ALJ may rely on the opinions of the state agency physicians who reviewed a
plaintiff’s file. See 20 C.F.R. § 404.1527(e)(2)(I). “Social Security regulations recognize that
opinions from non-examining state agency consultants may be entitled to significant weight, because
these individuals are ‘highly qualified’ and are ‘experts in Social Security disability evaluation.’”
Cobb v. Comm’r of Soc. Sec., No. 1:12–cv–2219, 2013 WL 5467172, at *5 (N.D. Ohio Sept. 30,
2013) (quoting 20 C.F.R. §§ 404.1527(e)(2)(I), 416.927(e)(2)(I)); see Barker v. Shalala, 40 F.3d
789, 794 (6th Cir. 1994). Indeed, “in appropriate circumstances, opinions from State agency
medical and psychological consultants . . . may be entitled to greater weight than the opinions of

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treating or examining sources.” Brooks v. Comm’r of Soc. Sec., 531 F. App’x 636, 642 (6th Cir.
2013).
The ALJ is responsible for weighing conflicting medical opinions. See Buxton v.
Halter, 246 F.3d 762, 775 (6th Cir. 2001); see also Reynolds v. Comm’r of Soc. Sec., 424 F. App’x
411, 414 (6th Cir. 2011) (“This court reviews the entire administrative record, but does not
reconsider facts, re-weigh the evidence, resolve conflicts in evidence, decide questions of credibility,
or substitute its judgment for that of the ALJ.”). Where a treating physician’s opinion is not
supported by objective medical facts, a non-examining physician’s opinion may be accepted over
it “when the non-examining physician clearly states the reasons for his differing opinion.” Carter
v. Comm’r of Soc. Sec., 36 F. App’x 190, 191 (6th Cir. 2002). Here, it is patent the ALJ understood
the agency consultants had not examined Plaintiff, but nonetheless noted that the opinions were
consistent with the record and was based upon the consultants’ detailed knowledge of agency
regulations. (PageID.967–968.) Accordingly, the ALJ found they were entitled to considerable
weight. This is not, as Plaintiff’s argues, merely semantics. Rather it was entirely consistent with
Gayheart as well as the administration’s regulations regarding medical source opinions.
In sum, the ALJ provided several good reasons for assigning less than controlling
weight to Plaintiff’s treating physicians—a determination Plaintiff has not meaningfully challenged.
Once the ALJ made this determination, she did not err by determining that greater weight should
be given to the opinions from non-examining sources. The ALJ determined that the treating
physician opinions were inconsistent with the record while the agency opinions were consistent with
the record. This was an entirely appropriate determination. Accordingly, this claim of error is
denied.

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2.

The ALJ Did Not Err in Considering Plaintiff’s Receipt of
Unemployment Benefits After His Alleged Disability Onset Date in
Discounting Plaintiff’s Subjective Allegations.

At the administrative hearing, Plaintiff testified that he was impaired to an extent far
greater than as ultimately recognized by the ALJ. After summarizing the testimony, the ALJ found
that Plaintiff’s allegations were “not entirely credible.” (PageID.963.) The ALJ provided a lengthy
discussion of her reasons for making this finding, but Plaintiff’s sole argument against the ALJ’s
credibility determination concerns the following statement in the ALJ’s decision:
The record shows the claimant received unemployment benefits in all
quarters of 2009 and the first two quarters of 2010 (7D/2). In order
to qualify for such benefits, applicants typically must affirm that they
are capable of working. Thus, the claimant apparently claimed an
ability to work when applying for another form of government
benefits, while currently alleging an inability to work during the same
period.
(PageID.965.) Plaintiff contends that it was improper for the ALJ to discount his credibility based
on his receipt of unemployment benefits.
As the Sixth Circuit has long recognized, “pain alone, if the result of a medical
impairment, may be severe enough to constitute disability.” King v. Heckler, 742 F.2d 968, 974 (6th
Cir. 1984); see also Grecol v. Halter, 46 F. App’x 773, 775 (6th Cir. 2002). As the relevant Social
Security regulations make clear, however, a claimant’s “statements about [his] pain or other
symptoms will not alone establish that [he is] disabled.” 20 C.F.R. § 404.1529(a); see also Walters
v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997) (quoting 20 C.F.R. § 404.1529(a)); Hash
v. Comm’r of Soc. Sec., 309 F. App’x 981, 989 (6th Cir. 2009). Instead, a claimant’s assertions of
disabling pain and limitation are evaluated under the following standard:
First, we examine whether there is objective medical evidence of an
underlying medical condition. If there is, we then examine: (1)
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whether objective medical evidence confirms the severity of the
alleged pain arising from the condition; or (2) whether the objectively
established medical condition is of such a severity that it can
reasonably be expected to produce the alleged disabling pain.
Walters, 127 F.3d at 531 (citations omitted). This standard is often referred to as the Duncan
standard. See Workman v. Comm’r of Soc. Sec., 105 F. App’x 794, 801 (6th Cir. 2004).
Accordingly, “subjective complaints may support a finding of disability only where
objective medical evidence confirms the severity of the alleged symptoms.” Id. (citing Blankenship
v. Bowen, 874 F.2d 1116, 1123 (6th Cir. 1989)). However, where the objective medical evidence
fails to confirm the severity of a claimant’s subjective allegations, the ALJ “has the power and
discretion to weigh all of the evidence and to resolve the significant conflicts in the administrative
record.” Id. (citing Walters, 127 F.3d at 531).
In this respect, it is recognized that the ALJ’s credibility assessment “must be
accorded great weight and deference.” Id. (citing Walters, 127 F.3d at 531); see also Heston v.
Comm’r of Soc. Sec., 245 F.3d 528, 536 (6th Cir. 2001) (quoting Myers v. Richardson, 471 F.2d
1265, 1267 (6th Cir. 1972) (“[i]t [i]s for the [Commissioner] and his examiner, as the fact-finders,
to pass upon the credibility of the witnesses and weigh and evaluate their testimony”)). It is not for
this Court to reevaluate such evidence anew, and so long as the ALJ’s determination is supported
by substantial evidence, it must stand. The ALJ found Plaintiff’s subjective allegations to not be
fully credible, a finding that should not be lightly disregarded. See Varley v. Sec’y of Health &
Human Servs., 820 F.2d 777, 780 (6th Cir. 1987). In fact, as the Sixth Circuit has stated, “[w]e have
held that an administrative law judge’s credibility findings are virtually unchallengeable.” Ritchie
v. Comm’r of Soc. Sec., 540 F. App’x 508, 511 (6th Cir. 2013) (citation omitted).

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This district, as well as the Sixth Circuit, has recognized the apparent contradiction
between a claimant seeking disability benefits while simultaneously receiving unemployment
compensation. See, e.g., Workman, 105 F. App’x 794, 801–02 (6th Cir. 2000); see also Loyacano
v. Comm’r of Soc. Sec., No. 1: 13–cv–144, 2014 WL 1660072, at * 5 (W.D. Mich. Apr. 25, 2014)
(collecting cases); Smith v. Comm’r of Soc. Sec., No. 1:12–cv–904, 2014 WL 197846, at * 16 (S.D.
Ohio Jan. 15, 2014); Barton v. Astrue, No. 3:11–cv–1239, 2013 WL 6196297, at * 7 (M.D. Tenn.
Nov. 27, 2013).
Plaintiff first argues that any benefits he was given were received several years ago.
But as the ALJ noted, he nonetheless received these benefits during a period in which he claims he
was unable to work. The fact that this may have been several years before the ALJ’s decision is
immaterial. Plaintiff also argues that the above line of cases no longer applies due to subsequent
developments in agency policy. Specifically, Plaintiff points to an August 2010, memorandum from
Frank A. Cristaudo, the Chief Administrative Law Judge for the Social Security Administration.
That memo instructs ALJs that “the receipt of unemployment benefits does not preclude the receipt
of Social Security disability benefits. The receipt of unemployment benefits is only one of many
factors that must be considered in determining whether the claimant is disabled.” Webster v. Colvin,
2014 WL 4095341, at *9 (E.D. Tenn., Aug. 19, 2014). As Chief ALJ Cristaudo explained, “because
the disability decisionmaking process is uncertain and quite lengthy, a claimant should not be forced
to choose between applying for unemployment and disability benefits.” Id. Plaintiff argues that this
memo precludes consideration of a claimant’s receipt of unemployment benefits. Here, the ALJ did
not base the credibility determination solely on the receipt of unemployment benefits, but noted that
other factors, including Plaintiff’s daily activities and medical history, combined with the receipt

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of unemployment benefits, stood at odds with her disability claim. This was entirely appropriate.
Plaintiff’s interpretation of the memo also over-reads the Administration’s policy. As the memo
itself states, the receipt of unemployment benefits is a factor that may be considered. As such, the
deference generally accorded an ALJ’s credibility determination is appropriate here. Accordingly,
this claim of error is denied.
3.

The ALJ Properly Evaluated the Other Source Opinion Evidence.

In support of his application for disability benefits, Plaintiff submitted a July 18,
2014, letter on letterhead from Trackin Fast, Inc., where Plaintiff apparently worked part time. In
the letter Mr. Brian Stewart, whose position at the company is not evident, wrote “My name is Brian
Stewart. Randy Dukes is a part-time on call employee. He has limitations due to his service
connected disability. The increases in hours were due to training. He will average 6 to 10 hours per
week.” (PageID.1372.) Plaintiff also submitted an August 2, 2013, function report that was
completed by Plaintiff’s mother which generally provided limitations in excess of those accounted
for by the ALJ. (PageID.1345–1352.) The ALJ gave little weight to the assessment from Mr.
Stewart. She noted that Mr. Stewart was not an acceptable source, that it was unclear what role Mr.
Stewart had in the organization, and that the opinion was vague and was not stated in function by
function terms. The ALJ further noted that the letter was not consistent with the weight of the
medical evidence and Plaintiff’s activities of daily living. (PageID.974.) Regarding the function
report from Plaintiff’s mother, the ALJ also noted that she was not an acceptable source. To the
extent that Plaintiff’s mother stated that Plaintiff’s limitations exceeded those accounted for in the
RFC, the ALJ noted that the opinion was not consistent with the weight of the medical evidence and

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the record as a whole, including objective examination findings, diagnostic imaging studies, the
longitudinal treatment record, and the weight of the medical opinion evidence. (PageID.973–974.)
Neither Mr. Stewart’s letter nor the function report from Plaintiff’s mother is
evidence from an acceptable medical source. 20 C.F.R. § 404.1513(a). Only “acceptable medical
sources” can: (1) provide evidence establishing the existence of a medically determinable
impairment; (2) provide a medical opinion; and (3) be considered a treating source whose medical
opinion could be entitled to controlling weight under the treating physician rule. See SSR 06–3p,
2006 WL 2329939 at * 1 (SSA Aug. 9, 2006)); see also Hickox v. Comm’r of Soc. Sec., No.
1:09–cv–343, 2011 WL 6000829, at * 4 (W.D. Mich. Nov.30, 2011). Family members, friends,
social workers, therapists, and physician’s assistants are classified as “other sources” 20 C.F.R. §
404.1513(d). The opinions of “other sources” are not entitled to controlling weight and there is no
requirement that the ALJ provide “good reasons” for rejecting such opinions. See Smith v. Comm’r
of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007); see also Engebrecht v. Comm’r of Soc. Sec., 572 F.
App'x 392, 398 (6th Cir. 2014); Borden v. Comm’r of Soc. Sec., No. 1:13 cv 2211, 2014 WL
7335176, at *9 (N.D. Ohio Dec.19, 2014); Hibbard v. Comm’r of Soc. Sec., 1:12–cv–1216, 2014
WL 1276518, at *6 (W.D. Mich. Mar. 27, 2014). The ALJ is required to “consider” evidence from
such sources. 20 C.F.R. § 404.1527(f).
Plaintiff contends the ALJ imposed “ridiculous requirements” on the other source
opinion evidence and further states that “unless a plaintiff is born into a family of physicians, the
observations of family members receives no credit from this ALJ.” (PageID.1959.) Here, Plaintiff
continues a pattern of failing to point to specific errors made by the ALJ in this case, and denigrating
arguments do nothing to advance Plaintiff’s claim. The ALJ found that both other source opinions

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were inconsistent with the evidence of record, Plaintiff does not even attempt to argue that this
determination was unsupported by substantial evidence. “The burden of proof of showing a decision
is not supported by substantial evidence rests with the party seeking to overturn the decision of the
agency.” Century Cellunet of S. Michigan, Inc. v. City of Ferrysburg, 993 F. Supp. 1072, 1077
(W.D. Mich. 1997) (citing Barwacz v. Michigan Dep’t of Educ., 674 F. Supp. 1296, 1302 (W.D.
Mich.1987)). Nonetheless, the Court has examined that ALJ’s discussion of these two opinions and
compared such against the objective record. The ALJ’s discussion is supported by overwhelming
evidence and easily survives scrutiny when compared to the requirements for considering other
source opinions. This claim of error is denied.
CONCLUSION
For the reasons articulated herein, the undersigned concludes that the ALJ’s decision
is AFFIRMED. A separate judgment shall issue.

Dated: June 8, 2017

/s/ Janet T. Neff
JANET T. NEFF
UNITED STATES DISTRICT JUDGE

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