McClintock v. Commissioner of Social Security

Filing 18

OPINION; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CHRISTINA MCCLINTOCK,
Plaintiff,

Hon. Ellen S. Carmody

v.
Case No. 1:17-cv-332
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.
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
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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 30 years of age on her alleged disability onset date. (PageID.1315).
She successfully completed high school and worked previously as a cashier, sales clerk, and retail
customer service worker. (PageID.1113). Plaintiff applied for benefits on October 15, 2013,
alleging that she had been disabled since September 28, 2012, due to scoliosis, plantar fasciitis,
back pain, and foot pain. (PageID.1315-22, 1342). Plaintiff=s applications were denied, after
which time she requested a hearing before an Administrative Law Judge (ALJ). (PageID.12131312).
On March 5, 2015, Plaintiff appeared before ALJ Donna Grit with testimony being
offered by Plaintiff and a vocational expert. (PageID.1145-1211). Plaintiff thereafter submitted
additional medical evidence in response to which the ALJ conducted a supplemental hearing on
January 28, 2016, at which Plaintiff and a vocational expert testified. (PageID.1122-44). In a
written decision dated February 18, 2016, the ALJ determined that Plaintiff was not disabled.
(PageID.1103-15). The Appeals Council declined to review the ALJ=s determination, rendering
it the Commissioner=s final decision in the matter. (PageID.1060-66). 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
her residual functional capacity. See 20 C.F.R. '' 404.1545, 416.945.
The burden of establishing the right to benefits rests squarely on Plaintiff=s
shoulders, and she can satisfy her burden by demonstrating that her impairments are so severe that
she is unable to perform her previous work, and cannot, considering her age, education, and work
experience, perform any other substantial gainful employment existing in significant numbers in
the national economy. See 42 U.S.C. ' 423(d)(2)(A); Cohen, 964 F.2d at 528. While the burden
of proof shifts to the Commissioner at step five, Plaintiff bears the burden of proof through step

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1.

An individual who is working and engaging in substantial gainful activity will not be found to be
Adisabled@ regardless of medical findings (20 C.F.R. '' 404.1520(b), 416.920(b));

2.

An individual who does not have a Asevere impairment@ will not be found Adisabled@ (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 Ameets or equals@ a listed impairment in Appendix 1 of Subpart P of Regulations
No. 4, a finding of Adisabled@ 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 Anot 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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four of the procedure, the point at which her residual functioning capacity (RFC) is determined.
See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Walters v. Comm=r of Soc. Sec., 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 suffered from: (1) scoliosis; and (2) degenerative
changes of the thoracic and lumbar 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.1106-07). With respect to Plaintiff=s residual functional capacity, the ALJ determined
that Plaintiff retained the capacity to perform sedentary work subject to the following limitations:
(1) she can occasionally climb ramps and stairs, but cannot climb ladders, ropes, or scaffolds; (2)
she can occasionally balance, stoop, kneel, and crouch, but can never crawl; and (3) she must be
permitted to wear tennis shoes in the workplace. (PageID.1107).
The ALJ found that Plaintiff was unable to perform her past relevant work at which
point the burden of proof shifted to the Commissioner to establish by substantial evidence that a
significant number of jobs exist in the national economy which Plaintiff could perform, her
limitations notwithstanding. See Richardson, 735 F.2d at 964. While the ALJ is not required to
question a vocational expert on this issue, Aa 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.
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Accordingly, ALJs routinely question vocational experts in an attempt to determine whether there
exist a significant number of jobs which a particular claimant can perform, his limitations
notwithstanding. Such was the case here, as the ALJ questioned a vocational expert.
The vocational expert testified that there existed approximately 140,000 jobs in the
national economy which an individual with Plaintiff=s RFC could perform, such limitations
notwithstanding. (PageID.1195-99). This represents a significant number of jobs. See, e.g.,
Taskila v. Commissioner of Social Security, 819 F.3d 902, 905 (6th Cir. 2016) (“[s]ix thousand
jobs in the United States fits comfortably within what this court and others have deemed
‘significant’”). The vocational expert further testified that if Plaintiff were further limited to work
which afforded a sit/stand option, there still existed approximately 70,000 jobs which Plaintiff
could perform consistent with her RFC. (PageID.1199-1200). Accordingly, the ALJ concluded
that Plaintiff was not entitled to disability benefits.
I.

The ALJ’s RFC Assessment is Supported by Substantial Evidence
A claimant’s RFC represents the “most [a claimant] can still do despite [the

claimant’s] limitations.” Sullivan v. Commissioner of Social Security, 595 Fed. Appx. 502, 505
(6th Cir., Dec. 12, 2014); see also, Social Security Ruling 96-8P, 1996 WL 374184 at *1 (Social
Security Administration, July 2, 1996) (a claimant’s RFC represents her ability to perform “workrelated physical and mental activities in a work setting on a regular and continuing basis,” defined
as “8 hours a day, for 5 days a week, or an equivalent work schedule”). As previously noted, the
ALJ concluded that Plaintiff retained the ability to perform a limited range of sedentary work.
Plaintiff argues that she is entitled to relief on the ground that the ALJ’s RFC assessment is not
supported by substantial evidence.
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The ALJ recognized that Plaintiff experiences scoliosis and degenerative changes
of her thoracic and lumbar spine; however, the evidence does not support the argument that these
impairments impose limitations greater than the ALJ recognized. Physical examinations of
Plaintiff’s back and spine have not revealed findings which are inconsistent with the ALJ’s
opinion. (PageID.1640-58, 1777-1856). Treatment notes dated February 25, 2014, indicate that
Plaintiff “is to return to work without restrictions.” (PageID.1792). X-rays of Plaintiff’s cervical
spine, taken March 26, 2015, revealed “tiny” spurs at C4-5, but were otherwise unremarkable.
(PageID.1957). X-rays of Plaintiff’s thoracic and lumbar spine, taken the same day, revealed
“mild” scoliosis and “mild” degenerative arthritis, but were otherwise unremarkable.
(PageID.1958-59). Plaintiff also experiences plantar fasciitis, but again there is nothing in the
record to suggest that such impairs her to a degree beyond that recognized by the ALJ.
(PageID.1623-24, 1679-86, 1779-1856). Finally, Plaintiff argues that the ALJ erred by failing “to
incorporate [into her RFC assessment] the limiting effects of [her] absenteeism.” The medical
record, however, does not support Plaintiff’s argument that her medical impairments result in a
work-preclusive number of work absences. Accordingly, this argument is rejected.
II.

The ALJ Properly Evaluated the Opinion Evidence
On December 16, 2010, Dr. Harold Wakefield complaint a “Request for Leave of

Absence – FMLA” form for Plaintiff’s then current employer. (PageID.1859-62). The doctor
indicated that Plaintiff required “medical leave” from December 16, 2010, through June 6, 2011,
so that she could attend chiropractic treatment for her scoliosis and thoracic spine pain.
(PageID.1859-62). Plaintiff argues that she is entitled to relief because the ALJ’s decision to
discount the opinion of her treating physician is not supported by substantial evidence.
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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 Awellsupported by medically acceptable clinical and laboratory diagnostic techniques@ and (2) the
opinion Ais 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 Ais 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 Agive good reasons@ for doing so. Gayheart, 710 F.3d at 376. Such reasons must be
Asupported 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 Aensures that the ALJ applies the treating
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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 Aare not well-supported by any objective findings and are inconsistent
with other credible evidence@ is, without more, too Aambiguous@ 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,
(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).
Plaintiff’s argument fails for three reasons. First, a review of the FMLA forms in
question reveals that Dr. Wakefield did not articulate a medical opinion. In this context, a medical
opinion is defined as “statements from physicians and psychologists or other acceptable medical
sources that reflect judgments about the nature and severity of your impairment(s), including your
symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical
or mental restrictions.” 20 C.F.R. §§ 404.1527(a)(2); 416.927(a)(2). Dr. Wakefield did not
articulate any functional limitations from which Plaintiff allegedly suffered. Instead, the doctor
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reported that it was “unknown” the extent to which Plaintiff was impaired and that instead, “if the
flare ups are bad [Plaintiff] will be asked to come in and be evaluated and we will give
recommendations at that time.” (PageID.1862).
Second, as the ALJ indicated, the FMLA forms in question concerned a period of
time more than two years prior to Plaintiff’s alleged disability onset date and, therefore, were not
relevant. (PageID.1112). Finally, to the extent the FMLA forms in question are interpreted as
asserting that Plaintiff is more limited than the ALJ recognized, such is contradicted by the medical
record. Accordingly, this argument is rejected.
III.

The ALJ Properly Evaluated Plaintiff’s Impairments
As noted above, the ALJ determined that Plaintiff suffers from multiple severe

physical impairments. Plaintiff argues, however, that she is entitled to relief because the ALJ
failed to also find that she suffers from a severe cervical pain and plantar fasciitis. At step two of
the sequential disability analysis articulated above, the ALJ must determine whether the claimant
suffers from a severe impairment. 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 she considered the entire
record and all Plaintiff’s impairments and limitations. Moreover, the ALJ’s RFC assessment is
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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, 2018

/s/ Ellen. S. Carmody
ELLEN S. CARMODY
U.S. Magistrate Judge

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