Place v. Commissioner of Social Security

Filing 21

OPINION vacating the Commissioner's decision and remanding the matter for further factual findings pursuant to sentence four of 42 U.S.C. § 405(g); signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, jal)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

WESLEY PLACE,
Plaintiff,

Hon. Ellen S. Carmody

v.

Case No. 1:16-CV-915

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) and Supplemental Security Income (SSI) under Titles II and
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. 12).
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
articulated herein, the Commissioner’s decision is vacated and this matter remanded for further
factual findings pursuant to sentence four of 42 U.S.C. § 405(g).

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 42 years of age on his alleged disability onset date. (PageID.255). He
successfully completed high school and worked previously as a truck driver. (PageID.57-58).
Plaintiff applied for benefits on August 3, 2013, alleging that he had been disabled since October
17, 2011, due to a back injury. (PageID.255-78, 292). Plaintiff’s application was denied, after
which time he requested a hearing before an Administrative Law Judge (ALJ). (PageID.101-252).
On February 18, 2015, Plaintiff appeared before ALJ James J. Kent with testimony being offered
by Plaintiff and a vocational expert. (PageID.73-99). In a written decision dated May 7, 2015, the
ALJ determined that Plaintiff was not disabled. (PageID.49-59). The Appeals Council declined to
review the ALJ’s determination, rendering it the Commissioner’s final decision in the matter.
(PageID.31-35). Plaintiff subsequently initiated this action 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

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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),

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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 her his 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 of the sequential evaluation process, 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. 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: (1) irritable bowel syndrome
(IBS)/Crohn’s disease; (2) chronic obstructive pulmonary disease (COPD); (3) fibromyalgia; (4)

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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sleep disorder; (5) migraines; (6) hypertension; (7) obesity; and (8) degenerative disc disease of the
spine, 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.51).
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) during an 8-hour
workday, he can stand/walk for 4 hours and sit for 6 hours; (2) he “might” need a sit/stand option
at will provided that he is not off task more than 10 percent of the work period; (3) he can
occasionally climb ladders, ropes, scaffolds, ramps, and stairs; (4) he can occasionally balance,
stoop, kneel, crouch, and crawl; (5) he has to avoid moderate exposure to environmental irritants
such as dust, odors, fumes, and gases. (PageID.52).
The ALJ found that Plaintiff cannot perform his 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, his
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

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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 561,000 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). Accordingly, the ALJ concluded that Plaintiff was not entitled to disability benefits.

I.

Treating Physician Doctrine
On October 18, 2013, Plaintiff’s treating physician, Dr. Michael Meyer, completed

a report concerning Plaintiff’s ability to perform work-related activities. (PageID.730-35). The
doctor reported that Plaintiff can: (1) frequently lift/carry 10 pounds and occasionally lift/carry 20
pounds; (2) sit, stand, and walk for two hours each during an 8-hour workday; (3) frequently
perform reaching activities; (4) occasionally push/pull; (5) continuously perform handling, fingering,
and feeling activities; (6) frequently operate foot controls; and (7) occasionally balance, stoop, kneel,
crouch, crawl, and climb ladders, ropes, stairs, and ramps. (PageID.730-35). The ALJ afforded
“little weight” to Dr. Meyer’s opinions. (PageID.57). Plaintiff argues that he is entitled to relief
because the ALJ’s rationale for discounting Dr. Meyer’s opinions is not supported by substantial
evidence.
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

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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
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

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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.
While there is overlap between Dr. Meyer’s opinion and the ALJ’s RFC assessment,
the two diverge in several respects, most importantly regarding Plaintiff’s ability to sit, stand, and
walk. In this respect, Dr. Meyer opined that Plaintiff is significantly more limited than the ALJ
found. There is nothing in the record, however, to indicate that if limited to the extent articulated
by Dr. Meyer that Plaintiff would still be able to perform work which exists in significant numbers.
Thus, if controlling weight had been given to Dr. Meyer’s opinion it may well have been dispositive
of Plaintiff’s claim for benefits. The ALJ discounted Dr. Meyer’s opinion, however, justifying such
with a single sentence: “The opinion of Dr. Meyer was given little weight since his findings are
inconsistent with the medical evidence of record.” (PageID.57). This statement is simply too vague
and ambiguous to facilitate meaningful review of the ALJ’s rationale. Moreover, the Court does not
discern anything else in the ALJ’s opinion which reasonably connects to or expands upon the
statement quoted above.
The Court notes that Defendant has, in response, advanced several arguments in
support of the ALJ’s decision to discount Dr. Meyer’s opinion. However, such after-the-fact
rationalizations are insufficient. Instead, as Wilson and Gayheart make clear, the task of articulating
the rationale for discounting a treating physician’s opinion rests with the ALJ. In sum, the ALJ’s
rationale for discounting Dr. Meyer’s opinions is not supported by substantial evidence. In light of
the fact that Dr. Meyer’s opinions are inconsistent with the ALJ’s RFC determination and the ALJ’s

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subsequent conclusion that there exists a significant number of jobs which Plaintiff can perform
consistent with his RFC, the ALJ’s failure is not harmless.

II.

Remand is Appropriate
While the Court finds that the ALJ’s decision fails to comply with the relevant legal

standards, Plaintiff can be awarded benefits only if “all essential factual issues have been resolved”
and “the record adequately establishes [his] entitlement to benefits.” Faucher v. Secretary of Health
and Human Serv’s, 17 F.3d 171, 176 (6th Cir. 1994); see also, Brooks v. Commissioner of Social
Security, 531 Fed. Appx. 636, 644 (6th Cir., Aug. 6, 2013). This latter requirement is satisfied
“where the proof of disability is overwhelming or where proof of disability is strong and evidence
to the contrary is lacking.” Faucher, 17 F.3d at 176; see also, Brooks, 531 Fed. Appx. at 644.
Evaluation of Plaintiff’s claim requires the resolution of certain factual disputes which this Court
is neither competent nor authorized to undertake in the first instance. Moreover, there does not exist
compelling evidence that Plaintiff is disabled. Accordingly, this matter must be remanded for
further administrative action.

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CONCLUSION
For the reasons articulated herein, the Court concludes that the ALJ’s decision is not
supported by substantial evidence. Accordingly, the Commissioner’s decision is vacated and the
matter remanded for further factual findings pursuant to sentence four of 42 U.S.C. § 405(g).
A judgment consistent with this opinion will enter.

Date: July 12, 2017

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

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