Belcher v. Commissioner of Social Security

Filing 18

OPINION; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, sdb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

NICOLE M. BELCHER,
Plaintiff,

Case No. 1:16-cv-944

v.
HON. ROBERT J. JONKER
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) denying Plaintiff’s claim for disability insurance benefits (DIB) and supplemental
security income (SSI) under Titles II and XVI 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. The Commissioner has found that Plaintiff
is not disabled within the meaning of the Act.
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 evidence 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
Plaintiff was forty-six years of age on the date of the ALJ’s decision. (PageID.123,
237, 249.) She completed high school and was previously employed as a production worker, sewing
machine operator, automotive production assembler, and as a nurse’s aide. (PageID.184–186, 363,
417.) Plaintiff previously applied for benefits on July 27, 2011. This application resulted in an
unfavorable decision by an ALJ on January 7, 2013, but does not appear to have been further
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pursued. (PageID.126.) Instead, Plaintiff again applied for benefits on April 8, 2013, alleging
disability beginning July 7, 2010, due to depression, type II diabetes, anxiety, posttraumatic stress
disorder, chronic back pain, fibromyalgia, and hypertension.

(PageID.237, 249, 326–338.)

Plaintiff’s applications were denied on July 2, 2013, and Plaintiff subsequently requested a hearing
before an ALJ. (PageID.264–271, 276–278.) On October 14, 2014, Plaintiff appeared with her
counsel before ALJ Manh H. Nguyen for an administrative hearing at which time Plaintiff and a
vocational expert (VE) both testified. (PageID.158–195.) On January 30, 2015, the ALJ issued an
unfavorable written decision that concluded Plaintiff was not disabled. (PageID.123–139.) On June
2, 2016, the Appeals Council declined to review the ALJ’s decision, making it the Commissioner’s
final decision in the matter. (PageID.70–75.) Thereafter, Plaintiff initiated this action under 42
U.S.C. § 405(g).
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), 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 work he or she has done in the past, 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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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
the claimant’s residual functional capacity (RFC). See 20 C.F.R. §§ 404.1545, 416.945.
Plaintiff has the burden of proving the existence and severity of limitations caused
by her impairments and that she 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
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 Nguyen determined Plaintiff’s claim failed at step five. At step one, the ALJ
found that Plaintiff had not engaged in substantial gainful activity since her alleged disability onset
date. (PageID.129.) At step two, the ALJ found that Plaintiff suffered from the severe impairments
of degenerative disc disease, lumbar spine; fibromyalgia; diabetes mellitus with neuropathy; bipolar
disorder; posttraumatic stress disorder (PTSD); panic disorder; alcohol dependence, in remission;
cannabis abuse, in remission; and insomnia. (PageID.129.) At step three, 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 found in 20 C.F.R. Pt. 404, Subpt. P, App. 1.
(PageID.129–131.) At step four, the ALJ determined Plaintiff retained the RFC based on all the
impairments:
to perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except she can stand and walk only four hours in an eighthour workday and can occasionally operate foot controls bilaterally.
She can never climb ladders, ropes, or scaffolds, kneel or crawl. She
can occasionally climb stairs and ramps, balance, stoop, or crouch.
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She can frequently reach, handle, finger, and feel bilaterally. For
every 30 minutes of sitting, standing, or walking, she must be able to
change position for five minutes before resuming the prior position.
She will remain on task 90% of the workday. She cannot work
around unprotected heights or uncovered, unguarded moving
machinery. She is limited to simple instructions. She cannot work
in environment with production paced work quotas. She can tolerate
occasional, routine changes. She cannot work with the public and is
limited to occasional work with coworkers and supervisors. She
cannot work in groups of more than nine people.
(PageID.131.) Continuing with the fourth step, the ALJ determined that Plaintiff was unable to
perform any of her past relevant work. (PageID.133.) At the fifth step, the ALJ questioned the VE
to determine whether a significant number of jobs exist in the economy that Plaintiff could perform
given her limitations. See Richardson, 735 F.2d at 964. The VE testified that Plaintiff could
perform work in the following representative jobs: inspector (113,000 national positions), office
helper (80,000 national positions), and garment sorter (112,000 national positions).
(PageID.186–193.) 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.134.)
Accordingly, the ALJ concluded that Plaintiff was not disabled from July 7, 2010,
the alleged disability onset date, through January 30, 2015, the date of decision. (PageID.135.)
DISCUSSION
1.

The ALJ’s Step Two Evaluation.

On January 14, 2015, well after the administrative hearing but before the ALJ’s
decision two weeks later, Plaintiff suffered a slip and fall on some ice. She sought treatment at the
Mercy Hospital Cadillac Emergency Room, complaining of an injury to her low back and left hip.

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(PageID.658.) She stated she had chronic hip and low back pain, and that the pain was worse after
the fall. Plaintiff underwent x-rays and the completed scans revealed compression fractures at the
T12 and L1 vertebrae. (PageID.559.) In her first claim of error, Plaintiff argues the ALJ erred
because he failed to list these fractures as additional severe impairments. (PageID.686-688.)
As noted above, the ALJ found at step 2 of the sequential analysis that
Plaintiff had several severe impairments. (PageID.129.) To the extent that Plaintiff is arguing the
ALJ’s decision should be overturned because the ALJ failed to find additional severe impairments
at step 2, her argument is patently meritless. The finding of a severe impairment is a threshold
determination. One severe impairment suffices to advance the sequential analysis to the next step.
Here, the ALJ found nine, thus moving the analysis to the next step. The failure to find additional
severe impairments is therefore “legally irrelevant.” McGlothin v. Comm’r of Soc. Sec., 299 F.
App’x 516, 522 (6th Cir. 2008); see also Anthony v. Astrue, 266 F. App’x 451, 457 (6th Cir. 2008);
Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir.1987).
Further, the record fails to document that Plaintiff had any additional functional
restrictions stemming from these compression fractures. Moreover, the ALJ’s failure to explicitly
discuss these four pages2 of records was not reversible error. A claimant’s RFC represents the “most
[a claimant] can still do despite [the claimant’s] limitations.” Sullivan v. Comm’r of Soc. Sec., 595
F. App’x 502, 505 (6th Cir. 2014); see also SSR 96–8p, 1996 WL 374184 at *1 (S.S.A., July 2,
1996) (stating that a claimant’s RFC represents her ability to perform “work-related physical and
mental activities in a work setting on a regular and continuing basis,” defined as “8 hours a day, for

2

Only the records found in exhibit 15F were submitted to the ALJ. The records found at exhibit 16F were not.
Plaintiff does not request a sentence six remand for further consideration of these records.

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5 days a week, or an equivalent work schedule”). In formulating the RFC, “the ALJ need only
articulate how the evidence in the record supports the RFC determination, discuss the claimant's
ability to perform sustained work-related activities, and explain the resolution of any inconsistencies
in the record.” Delgado v. Comm’r of Soc. Sec., 30 F. App’x 542, at 547–48 (6th Cir. 2002)
(citations and quotation marks omitted). The ALJ is not required to discuss every piece of evidence,
and his failure to do so does not indicate that the evidence was not considered. See Daniels v.
Comm’r of Soc. Sec., 152 F. App’x 485, 489 (6th Cir. 2005); Simons v. Barnhart, 114 F. App’x 727,
733 (6th Cir. 2004); accord Van Der Maas v. Comm’r of Soc. Sec., 198 F. App’x 521, 526 (6th Cir.
2006).
Plaintiff only speculates that these records may explain her significant back pain; she
provides no medical opinion stating as much. Nor does it appear that any additional limitations are
called for from these records. The records submitted by Plaintiff contain no discussion of any
functional limitation related to Plaintiff’s compression fractures. To the contrary, the records note
Plaintiff’s strength and reflexes were equal and intact in her bilateral lower extremities.
(PageID.659.) She also had a negative straight leg raise test and there was no vertebral tenderness.
(PageID.659.) She was able to ambulate without difficulty. (PageID.659.) After receiving
medication, Plaintiff’s pain was nearly resolved. While the clinical impression was that Plaintiff did
have a compression fracture, it was described as old and, most notably, mild. (PageID.659.)
Accordingly, I find that Plaintiff’s arguments here are meritless.

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2.

The ALJ’s Evaluation of Plaintiff’s Subjective Complaints.

At the administrative hearing, Plaintiff alleged that she was impaired to an extent far
greater than as ultimately recognized by the ALJ. The ALJ summarized Plaintiff’s allegations as
follows:
The claimant alleged disability due to depression, Type II diabetes,
anxiety, PTSD, chronic back pain, fibromyalgia, and hypertension
(B2E). She testified she does not like crowds, and she gets nervous
and leaves if there are 10 people around. She stated she uses a cane
for balance, and she stated she sometimes falls. She stated she can
walk a few blocks and can stand up to five minutes.
(PageID.132.) The ALJ went on to find that Plaintiff’s allegations concerning the intensity,
persistence, and limiting effects of her symptoms were not entirely credible. (PageID.132.) In her
second claim of error, Plaintiff contends the ALJ erred by failing to explicitly discuss all the factors
contained in SSR 96-7p, the regulation concerning the evaluation of a claimant’s subjective
complaints. Plaintiff has not shown reversible error.
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 [her] pain or other
symptoms will not alone establish that [she is] disabled.” 20 C.F.R. §§ 404.1529(a), 416.929(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 other limitations are evaluated under the following
standard:

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First, we examine whether there is objective medical evidence of an
underlying medical condition. If there is, we then examine: (1)
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 making this finding, social security regulations
note that the Commissioner will consider the following factors: (1) a claimant’s daily activities, (2)
the location, duration, frequency, and intensity of a claimant’s pain or other symptoms, (3)
precipitating and aggravating factors, (4) the type, dosage, effectiveness, and side effects of any
medication a claimant takes or has taken to alleviate pain and other symptoms, (5) treatment, other
than medication, a claimant receives or has received for relief of pain or other symptoms, (6) any
measure a claimant uses or has used to relieve pain or other symptoms, such as lying on one’s back,
shifting positions, or sleeping on a board, and (7) any other factors concerning a claimant’s
functional limitations and restrictions due to pain or other symptoms.

See 20 C.F.R. §

404.1529(c)(3); SSR 16-3p, 2016 WL 1119029, at *7 (S.S.A. Mar. 16, 2016); see also SSR 96-7p,
1996 WL 374186, at *3 (S.S.A. July 2, 1996).

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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).
Plaintiff’s entire argument regarding the ALJ’s credibility evaluation is that the
“seven requirements under Social Security Ruling SSR 96-7p were either inadequately analyzed or
not analyzed at all.” (PageID.688.) It is true that meaningful appellate review of an ALJ’s credibility
determination requires more than a blanket assertion by an ALJ that “the claimant is not believable.”
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 248 (6th Cir. 2007). Put differently, the ALJ’s
credibility evaluation “must be sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator gave to the individual’s statements and the reasons
for that weight.” Id. But Plaintiff points to no authority requiring an ALJ to discuss each of the
factors listed in the regulations to meet this specificity requirement. To the contrary, the regulations
merely note that the ALJ will “consider” the factors. 20 C.F.R. §§ 404.1529(a), 416.929(a). The
ALJ gave sufficient consideration here.

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The ALJ gave a lengthy explanation of his factual finding regarding Plaintiff’s
credibility and explicitly noted his obligation to consider Plaintiff’s allegations under SSR 96-7p.
(PageID.132.)

Among other things, the ALJ noted that Plaintiff’s physical complaints were

inconsistent with objective examinations that found Plaintiff had normal sensation, reflexes, and
negative straight leg raise testing. (PageID.132.) While it is true that the October 2, 2014, treatment
note referenced by the ALJ is a note that largely concerned Plaintiff’s mental health complaints, the
Court sees no reversible error here because, as noted above, treatment records dated in January 2015
also contain no physical limitations and normal objective testing results. The ALJ also referenced
Plaintiff’s noncompliance with prescribed treatment. This was an appropriate consideration. The
Sixth Circuit recognizes that a claimant’s failure to follow prescribed treatment is evidence
supporting an ALJ’s factual finding that the claimant’s testimony was not fully credible. See Sias
v. Sec’y of Health & Human Servs., 861 F.2d 475, 480 (6th Cir.1988). Here Plaintiff failed to attend
therapy sessions (both physical and mental) and further failed to take her medication as prescribed.
In sum, the ALJ provided several reasons for finding Plaintiff’s allegations were less
than fully credible. These reasons were specific enough to permit the Court to undertake a
meaningful review. Furthermore, the reasons articulated by the ALJ are supported by substantial
evidence. Accordingly, this claim fails.
3.

The ALJ’s Evaluation of Plaintiff’s Fibromyalgia.

Plaintiff next contends the ALJ failed to properly evaluate her fibromyalgia. Plaintiff
correctly notes that SSR 12-2p is the applicable ruling. (PageID.691.) Beyond that, however,
Plaintiff provides only brief and conclusory remarks that the ALJ’s decision fails to properly apply
this ruling. Accordingly, Plaintiff fails to demonstrate she is entitled to relief on this claim of error.

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Admitting that the ALJ properly found her fibromyalgia was a severe impairment,
Plaintiff alleges that the ALJ failed to connect the dots between her pain from fibromyalgia and the
RFC. But Plaintiff fails to explain how the ALJ’s analysis failed to satisfy SSR 12-2p’s procedural
requirements. Again, there is a difference between what an ALJ must consider, and what he must
discuss. The Sixth Circuit has recently examined a similar claim regarding SSR 12-2p, and the
court’s decision on the point is worth quoting in its entirety:
On July 25, 2012, the SSA released SSR 12–2p (“the Ruling”), which
“provides guidance on how we develop evidence to establish that a
person has a medically determinable impairment of fibromyalgia, and
how we evaluate fibromyalgia in disability claims . . . .” SSA 12–2p,
2012 WL 3104869, at *1 (July 25, 2012). To that end, SSR 12–2p
describes criteria for establishing that a person has a medically
determinable impairment (“MDI”) of fibromyalgia, id. at *2–3, the
sources of evidence the ALJ may look to, id. at *3–4, and how a
claimant’s subjective assertions of pain and functional limitations are
evaluated, id. at *4. The Ruling also states that fibromyalgia should
be analyzed under the traditional five-step evaluation process used for
analyzing other claims for SSI. Id. at *5–6. Importantly, as Plaintiff
concedes in her brief before this Court, SSR 12–2p “is merely a
binding interpretation of that which was already lawfully in effect.”
In other words, SSR 12–2p merely provides guidance on how to apply
pre-existing rules when faced with a claimant asserting disability
based on fibromyalgia.
Plaintiff argues that “the Commissioner failed to apply SSR 12–2p in
denying the application for benefits.” Below, the district court
observed that “Plaintiff fails to explain how the ALJ’s RFC
assessment contravenes SSR 12–2p or how the Commissioner’s final
decision should have differed in light of SSR 12–2p.” We find the
same is true in this appeal. In addition to the above-quoted assertion
that the ALJ “failed to apply SSR 12–2p,” Plaintiff ambiguously
asserts that the ALJ “failed to enter into any discussion of the factors
required by law and the SSR.” Yet, Plaintiff does not state which
“factors” were not discussed.
To the extent these vague arguments suggest that the ALJ failed to
explicitly apply 12–2p’s diagnostic criteria for determining whether
a claimant has an MDI of fibromyalgia, such error—to the extent it
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exists—is harmless given that the ALJ concluded (1) that Plaintiff did
have fibromyalgia, and (2) that her fibromyalgia constituted a “severe
impairment” under the second step of the five-step analysis. To the
extent Plaintiff argues that the ALJ failed to properly apply SSR
12–2p’s guidelines for evaluating a claimant's personal statements
about the severity of her own symptoms, that argument is also
unavailing. Section IV of SSR 12–2p states that when evaluating a
claimant’s statements, ALJs must “follow the two-step process set
forth in our regulations and in SSR 96–7p.” SSR 12–2p, 2012 WL
3104869, at *5. In this case, the ALJ cited SSR 96–7p and explicitly
applied the two-step process described therein. Finally, as discussed
above, the ALJ applied the standard five-step process for evaluating
all disability claims. In sum, although the ALJ did not explicitly cite
SSR 12–2p, it nevertheless applied the Ruling’s principles. That is
all that is required under our precedents. McClanahan [v. Comm’r of
Soc. Sec., 474 F.3d 830, 834 (6th Cir. 2006)] (“Because the ALJ
conducted the analysis required by the Ruling, his failure to mention
it by name is not fatal to the decision.”).
Luukkonen v. Comm’r of Soc. Sec., 653 F. App’x 393, 398–400 (6th Cir. 2016) (internal footnotes
and citations omitted). The above analysis is easily applied to the instant case. As in Luukkonen,
Plaintiff provides only vague claims regarding SSR 12-2p. Furthermore, as the Sixth Circuit noted,
the ruling only provides guidance on applying pre-existing rules. In other words, the ruling does
not require an analysis separate from the traditional five-step sequential evaluation. Here, as in
Luukkonen, the ALJ found Plaintiff’s fibromyalgia constituted a severe impairment at step two.
(PageID.129.) Proceeding with the analysis, the ALJ found that none of Plaintiff’s impairments,
either alone or in combination, met or equaled a listed impairment. (PageID.129.) Turning to the
RFC discussion, the ALJ provided an extensive evaluation of Plaintiff’s credibility and applied the
two step process called for in SSR 96-7p and SSR 12-2p. (PageID.132.) This was all that the ruling
required on this record, and therefore Plaintiff’s claim that the ALJ failed to properly apply SSR 122p is without merit.

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4.

The ALJ’s Evaluation of Lay Witness Opinions.

In support of her application for benefits, Plaintiff submitted a function report
completed by her roommate, Lon Westfall. The ALJ considered the report, but stated it was not
given weight as it was from a non-medical source, the statements were general in nature, and the
statements did not discuss specific functional limitations. (PageID.133.) In her last claim of error,
Plaintiff argues that the ALJ improperly discredited these statements. (PageID.692.)
Opinions expressed by non-treating sources such as a claimant’s roommate are not
entitled to any deference, and the ALJ is not required to articulate good reasons for discounting such.
See, e.g., Smith v. Comm’r of Soc. Sec., 481 F.3d 873, 876 (6th Cir. 2007). The ALJ is simply
required to consider the opinions and accord such weight he finds appropriate. See, e.g., Engebrecht
v. Comm’r of Soc. Sec., 572 F. App’x 392, 397–98 (6th Cir. 2014). Plaintiff asserts that the
justifications for failing to assign weight to her roommate’s opinions are broad considerations that,
if accepted, would be sufficient to discount every function report received by the Commissioner, and
fail to pass muster under SSR 06-03p. (PageID.693.) The Court disagrees.
“SSR 06–3p does not require that an ALJ discuss opinions supplied by ‘other sources’
or to explain the evidentiary weight assigned thereto.” Hickox v. Comm’r of Soc. Sec., No.
1:09–cv–343, 2010 WL 3385528, at *7 (W.D. Mich. Aug. 2, 2010), report and recommendation
adopted, No. 1:09–CV–343, 2011 WL 6000829 (W.D. Mich. Nov. 30, 2011). This is because SSR
06–3p is phrased in permissive rather than mandatory terms:
In considering evidence from “non-medical sources” who have not
seen the individual in a professional capacity in connection with their
impairments, such as spouses, parents, friends and neighbors, it
would be appropriate to consider such factors as the nature and extent
to the relationship, whether the evidence is consistent with the other

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evidence, and any other factors that tends to support or refute the
evidence.
2006 WL 2329939, at *6 (S.S.A. Aug. 9, 2006). SSR 06–3p also uses the permissive term “should”
in connection with the ALJ’s explanation of the “consideration” given to “other source” opinions:
Since there is a requirement to consider all relevant evidence in an
individual's case record, the case record should reflect the
consideration of the opinions from medical sources who are not
“acceptable medical sources” and from “non-medical sources” who
have seen the claimant in their professional capacity. Although there
is a distinction between what an adjudicator must consider and what
the adjudicator must explain in the disability determination or
decision, the adjudicator should generally explain the weight given to
the opinions from these “other sources,” or otherwise ensure that the
discussion of the evidence in the determination or decision allows a
claimant or subsequent reviewer to follow the adjudicator's reasoning,
when such opinions may have an effect on the outcome of the case.
Id. at *6; see Vanportfliet v. Comm’r of Soc. Sec., No. 1:10–cv–578, 2012 WL 1345315, at *15
(W.D. Mich. Mar. 26, 2012); see also Bernard v. Comm’r of Soc. Sec., No. 11–12951, 2012 WL
3639054, at *12 (E.D. Mich. July 25, 2012). The Court finds no error in the ALJ’s consideration
of Plaintiff’s roommate’s statements. While the third-party report should not be expected to provide
medical expertise, the ALJ did not err by noting the limited scope of the lay witness’s knowledge.
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 separate judgment shall issue.

Dated: July 31, 2017

/s/ Robert J. Jonker
Robert J. Jonker
Chief United States District Judge

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