Holmes v. Commissioner of Social Security

Filing 20

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

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARNI HOLMES,
Plaintiff,

Hon. Ellen S. Carmody

v.
Case No. 1:17-cv-421
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.
Commissioner=s decision is affirmed.

Accordingly, the

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 47 years of age on her alleged disability onset date. (PageID.197).
She successfully completed high school, as well as several years of college, and worked previously
as a cleaner, receptionist, and a video production person. (PageID.47, 62-63, 103-04). Plaintiff
applied for benefits on February 3, 2014, alleging that she had been disabled since December 13,
2013, due to osteoarthritis and depression. (PageID.197-204, 226). Plaintiff=s applications were
denied, after which time she requested a hearing before an Administrative Law Judge (ALJ).
(PageID.113-95).
On September 1, 2015, Plaintiff appeared before ALJ Lawrence Blatnik with
testimony being offered by Plaintiff and a vocational expert. (PageID.54-111). In a written
decision dated October 28, 2015, the ALJ determined that Plaintiff was not disabled. (PageID.4049).

The Appeals Council declined to review the ALJ=s determination, rendering it the

Commissioner=s final decision in the matter. (PageID.23-28). Plaintiff subsequently initiated
this appeal pursuant to 42 U.S.C. ' 405(g), seeking judicial review of the ALJ=s decision.
Plaintiff’s insured status expired on June 30, 2015. (Tr.42); see also, 42 U.S.C. §
423(c)(1). Accordingly, to be eligible for Disability Insurance Benefits under Title II of the Social
Security Act, Plaintiff must establish that she became disabled prior to the expiration of her insured
status. See 42 U.S.C. § 423; Moon v. Sullivan, 923 F.2d 1175, 1182 (6th Cir. 1990).
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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
four of the procedure, the point at which her residual functioning capacity (RFC) is determined.

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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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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) osteoarthritis; (2) degenerative
disc disease of the cervical and lumbar spine; (3) fibromyalgia; (4) carpal tunnel syndrome; and
(5) depression, 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.42-45).
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 lift, carry, push, and pull 10 pounds occasionally and lesser weight frequently; (2) during
an 8-hour workday, she can sit for 6 hours and stand/walk for 2 hours each; (3) she requires an
option to change positions from sitting to standing and vice versa, every 20-30 minutes for 3-5
minutes at a time; (4) she can frequently use bilateral hand controls; (5) she can frequently finger
and feel with either hand; (6) she can occasionally climb ladders and scaffolds; (7) she can
occasionally be exposed to unprotected heights, moving mechanical parts, extreme cold or heat;
(8) she can never use vibratory tools; and (9) she is limited to performing simple, routine, and
repetitive tasks. (PageID.45).
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
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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.
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.102-08). 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’”). Accordingly, the ALJ concluded that Plaintiff was not entitled to disability
benefits.
I.

The ALJ’s Credibility Assessment is Supported by Substantial Evidence
At the administrative hearing, Plaintiff testified that she was far more limited than

the ALJ determined in his RFC assessment. For example, Plaintiff testified that she “can’t think
straight” and is “exhausted all the time.” (PageID.79-80). Plaintiff reported that she “can’t lift
anything,” “can’t bend at the waist,” and is unable to walk even one half block. (PageID.81, 101).
The ALJ found that Plaintiff was not entirely credible and, accordingly, discounted her subjective

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allegations. (PageID.45-47). Plaintiff argues that the ALJ’s credibility determination is not
supported by substantial evidence.
As the Sixth Circuit has long recognized, Apain 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) (emphasis added); see also, Grecol v. Halter, 46 Fed. Appx. 773, 775 (6th Cir.,
Aug. 29, 2002) (same). As the relevant Social Security regulations make clear, however, a
claimant=s Astatements 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. Commissioner of Social Security, 127
F.3d 525, 531 (6th Cir. 1997) (quoting 20 C.F.R. ' 404.1529(a)) Hash v. Commissioner of Social
Security, 309 Fed. Appx. 981, 989 (6th Cir., Feb. 10, 2009). Instead, as the Sixth Circuit has
established, a claimant=s assertions of disabling pain and limitation are evaluated pursuant to the
following standard:
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. Commissioner of Social Security, 105 Fed. Appx. 794, 801 (6th Cir.,
July 29, 2004).
Accordingly, as the Sixth Circuit has repeatedly held, Asubjective 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
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subjective allegations, the ALJ Ahas the power and discretion to weigh all of the evidence and to
resolve the significant conflicts in the administrative record.@ Workman, 105 Fed. Appx. at 801
(citing Walters, 127 F.3d at 531).
In this respect, it is recognized that the ALJ=s credibility assessment Amust be
accorded great weight and deference.@ Workman, 105 Fed. Appx. at 801 (citing Walters, 127 F.3d
at 531); see also, Heston v. Commissioner of Social Security, 245 F.3d 528, 536 (6th Cir. 2001)
(A[i]t is 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 and Human Services, 820
F.2d 777, 780 (6th Cir. 1987).

As the Sixth Circuit has stated, A[w]e have held that an

administrative law judge=s credibility findings are virtually unchallengeable.@

Ritchie v.

Commissioner of Social Security, 540 Fed. Appx. 508, 511 (6th Cir., Oct. 4, 2013) (citation
omitted).
Nevertheless, the ALJ is not permitted to make credibility determinations based
upon Aan intangible or intuitive notion about an individual=s credibility.@ Rogers v. Commissioner
of Social Security, 486 F.3d 234, 247 (6th Cir. 2007). Instead, the ALJ=s rationale for discrediting
a claimant=s testimony Amust 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. at 248. Accordingly, Ablanket assertions that the claimant is not believable

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will not pass muster, nor will explanations as to credibility which are not consistent with the entire
record and the weight of the relevant evidence.@ Id.
As the ALJ observed, the objective medical evidence did not support Plaintiff’s
subjective allegations. X-rays and MRIs “were negative for notable malalignment, high-grade
stenosis or cord insult.” (PageID.269-77, 301, 315-16, 452-53). The ALJ noted that the results
of electromyographic examination revealed that Plaintiff experienced mild carpal tunnel
syndrome, but were otherwise negative. (PageID.293-97). Physical examinations consistently
revealed no deficiencies in range of motion, motor strength, reflexes, or sensation which are
inconsistent with the ALJ’s RFC. (PageID.312-13, 326-27, 365, 379, 388). The ALJ also
correctly noted that none of Plaintiff’s care providers imposed on Plaintiff functional limitations
which are inconsistent with Plaintiff’s RFC. In sum, the ALJ’s reasons for discounting Plaintiff’s
subjective allegations are supported by substantial evidence. Accordingly, this argument is
rejected.
II.

The ALJ Properly Assessed Plaintiff’s Fibromyalgia
Plaintiff also argues that the ALJ failed to comply with Social Security Ruling 12-

2 when evaluating her fibromyalgia and the extent to which such impairs her ability to function.
Social Security Ruling 12-2, Evaluation of Fibromyalgia, “provides guidance on
how we develop evidence to establish that a person has a medically determinable impairment of
fibromyalgia, and how we evaluate fibromylagia in disability claims and continuing disability
reviews under titles II and XVI of the Social Security Act.” Social Security Ruling, SSR 12-2p;
Titles II and XVI: Evaluation of Fibromyalgia, 77 Fed. Reg. 43640 (S.S.A. July 25, 2012). Much

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of this Social Security Ruling concerns how to assess whether a claimant’s fibromyalgia even
constitutes a severe impairment. Id. at 43640-43643.
Here, the ALJ concluded that Plaintiff’s fibromyalgia constitutes a severe
impairment. However, the determination that a claimant’s fibromyalgia constitutes a severe
impairment does not trigger any special fibromyalgia-specific analysis. Instead, Social Security
Ruling 12-2 expressly states that once a claimant’s fibromyalgia is found to constitute a severe
impairment, the ALJ “will consider it in the sequential evaluation process to determine whether
the person is disabled.” Id. at 43643. Specifically, the ALJ will “consider the severity of the
impairment, whether the impairment medically equals the requirements of a listed impairment,
and whether the impairment prevents the person from doing his or her past relevant work or other
work that exists in significant numbers in the national economy.” Id.
The ALJ assessed Plaintiff’s fibromyalgia consistent with this Ruling. The ALJ
found that Plaintiff’s fibromyalgia constituted a severe impairment and then continued with the
required sequential analysis. As the evidence discussed above indicates, the ALJ’s determination
that Plaintiff’s fibromyalgia did not meet or medically equal a listed impairment is supported by
substantial evidence. The ALJ found, at step four, that Plaintiff could no longer perform her past
relevant work, but based on the testimony of a vocational expert likewise found that there existed
a significant number of jobs which Plaintiff could still perform consistent with her RFC. The
Court, therefore, discerns no error in the ALJ’s evaluation of Plaintiff’s fibromyalgia.

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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: June 18, 2018

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

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