Adam v. Commissioner of Social Security

Filing 15

OPINION affirming the Commissioner's decision; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, jal)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ADAM,
Plaintiff,

Hon. Ellen S. Carmody

v.
Case No. 1:17-cv-691
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 Supplemental Security Income (SSI) under Title 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.
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 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 38 years of age on his alleged disability onset date. (PageID.163).
Plaintiff successfully completed high school and previously worked as a truck driver.
(PageID.504-05). Plaintiff applied for benefits on June 4, 2012, alleging that he had been disabled
since March 1, 2012, due to chronic obstructive pulmonary disorder (COPD), breathing problems,
pinched nerves in his back, and degenerative joint disease. (PageID.163-68, 179).
Plaintiff=s application was denied, after which time he requested a hearing before
an Administrative Law Judge (ALJ). (PageID.105-60). Following a hearing, ALJ Thomas
Walters denied Plaintiff’s claim. (PageID.51-59, 63-97). The Appeals Council declined to
review the ALJ=s determination, rendering it the Commissioner=s final decision in the matter.
(PageID.31-34). On April 15, 2016, the undersigned vacated the Commissioner’s decision on the
ground that the ALJ’s assessment of an opinion offered by Plaintiff’s treating physician was
“simply too ambiguous to permit meaningful review.” (PageID.583-92).
On February 14, 2017, ALJ Walters conducted another hearing with testimony
being offered by Plaintiff and a vocational expert. (PageID.516-42). In a written decision dated
April 5, 2017, the ALJ determined that Plaintiff was not disabled. (PageID.497-507). The
Appeals Council declined to review the ALJ=s determination, rendering it the Commissioner=s final
decision in the matter. (PageID.625-27). Plaintiff subsequently initiated this appeal 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

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));

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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
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 his impairments 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, 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 suffered from: (1) chronic obstructive pulmonary
disease (COPD); (2) degenerative disc disease; (3) degenerative joint disease of both knees; and

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)).

(4) obesity, 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.499-500). 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) he requires a sit-stand
option permitting him to change positions every 30-60 minutes; (2) he cannot tolerate concentrated
exposure to odors, dusts, gases, or fumes, or work around moving machinery or unprotected
heights; (3) he cannot deal with the public; and (4) he is limited to simple, routine, and repetitive
work. (PageID.500).
The ALJ found that Plaintiff was unable to 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, 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 reported that there existed approximately 323,000 jobs in the
national economy which an individual with Plaintiff=s RFC could perform, such limitations

notwithstanding. (PageID.536-38). 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.

Medical Opinion Evidence
On October 15, 2012, Dr. Laurie Gulick completed a form regarding Plaintiff’s

ability to perform physical activities. (PageID.336-37). While the ALJ articulated for Plaintiff
a very restrictive RFC, Dr. Gulick concluded that Plaintiff was, in certain respects, even more
limited than the ALJ recognized. For example, Dr. Gulick concluded that during an 8-hour
workday, Plaintiff could stand/walk and sit for “less than” two hours each. The doctor reported
that Plaintiff would need to lie down and rest twice daily during an 8-hour workday. The doctor
also reported that Plaintiff’s impairments would cause him to be absent from work more than four
days monthly. The ALJ afforded limited weight to Dr. Gulick’s opinions. Plaintiff argues that
he is entitled to relief on the ground that the ALJ’s rationale for discounting his treating physician’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 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
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

considers 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).
Dr. Gulick rendered her opinion on October 15, 2012. The medical evidence of
record prior to this date simply fails to support Dr. Gulick’s opinions. X-rays of Plaintiff’s knee,
taken on March 5, 2012, were negative. (PageID.244). The results of a March 23, 2012
examination were unremarkable with the doctor noting that Plaintiff’s allegations of pain are
“dramatically greater than what one can identify clinically. . .” (PageID.364). Treatment notes
dated June 28, 2012, indicate that Plaintiff was experiencing “mild” COPD. (PageID.392).
Likewise, the medical evidence subsequent to Dr. Gulick’s opinion fails to
demonstrate that Plaintiff is limited to the extent alleged. Chest x-rays, taken April 25, 2013,
were unremarkable with no evidence of acute disease. (PageID.355). Treatment notes dated
June 9, 2013, indicate that Plaintiff exhibited normal strength, range of motion, and reflexes.
(PageID.347-48). The results of a June 10, 2013 CT angiogram of Plaintiff’s head and neck were
“normal.” (PageID.451-54). Following a June 12, 2013 examination, Plaintiff was instructed to
exercise and avoid “heavy exertion.” (PageID.292-94).
Treatment notes dated March 24, 2014, indicate that Plaintiff characterized his back
pain as “mild” and the results of an examination were unremarkable. (PageID.836-38). The

doctor also noted that Plaintiff’s compliance with treatment directives was only “fair” and he does
not follow diet and exercise instructions.

(PageID.836).

A CT scan of Plaintiff’s thorax,

performed on July 2, 2014, revealed low lung volumes, but no acute pulmonary process.
(PageID.872).

A September 8, 2016 examination revealed that Plaintiff was capable of

performing “non-strenuous” sedentary work. (PageID.779-83). A CT scan of Plaintiff’s lumbar
spine, performed on September 11, 2014, revealed a “mild” disc bulge at L5-S1 without evidence
of herniation, stenosis, or nerve root compromise. (PageID.856-57). Treatment notes dated
October 14, 2016, indicate that Plaintiff’s exhibited normal range of motion and negative straight
leg raising. (PageID.886). It was further noted that Plaintiff’s back pain was exacerbated by his
sedentary lifestyle and lack of exercise.

(PageID.886).

In sum, the ALJ articulated good

reasons, supported by substantial evidence, for discounting Dr. Gulick’s opinions. Accordingly,
this argument is rejected.
II.

Plaintiff’s Subjective Allegations
At the administrative hearing, Plaintiff testified that he was far more limited than

the ALJ concluded. For example, Plaintiff testified that he was unable to walk even one block or
stand for longer than “a couple minutes.” (PageID.523-25). Plaintiff reported that he has to lay
down for several hours each day. (PageID.523, 527-28). Plaintiff testified that he is unable to
drive because his medications make him too drowsy. (PageID.526). Plaintiff also reported that
he vomits or experiences incontinence “once or twice a week.” (PageID.529-30). Plaintiff
argues that he is entitled to relief because the ALJ improperly discounted his subjective allegations.
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, a claimant=s assertions of
disabling pain and limitation are evaluated pursuant to the following standard.
First, it must be determined whether the claimant has a medically determinable
impairment that could reasonably be expected to produce the claimant’s alleged symptoms. See
Titles II and XVI: Evaluation of Symptoms in Disability Claims, Social Security Ruling 16-3p,
2016 WL 1119029 at *3-4 (S.S.A., Mar. 16, 2016). Next, the intensity and persistence of the
claimant’s symptoms are evaluated to determine the extent to which such limit his ability to
perform work-related activities. Id. at *4-9.2
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.@ Workman v. Commissioner of Social Security, 105 Fed. Appx. 794, 801 (6th Cir.,
July 29, 2004). However, where the objective medical evidence fails to confirm the severity of a
claimant=s 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).

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Social Security Ruling 16-3p rescinded Social Security Ruling 96-7p. Id. at *1. However, the adoption of this
new Social Security Ruling did not alter the analysis for evaluating a claimant’s subjective statements. Instead, as
the Social Security Administration stated, it was simply “eliminating the use of the term ‘credibility’ [so as to]
clarify that that subjective symptom evaluation is not an examination of an individual’s character.” Ibid. As
courts recognize, aside from this linguistic clarification, “[t]he analysis under SSR 16-3p otherwise is identical to
that performed under SSR 96-7p.” Young v. Berryhill, 2018 WL 1914732 at *6 (W.D. Ky., Apr. 23, 2018).

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 assess a claimant’s subjective allegations
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 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.
The ALJ expressly acknowledged that Plaintiff’s impairments “prevent him from
performing more than unskilled sedentary work with additional postural and environmental
restrictions.” (PageID.500-01). The ALJ further concluded, however, that the medical evidence

simply “does not support the degree of dysfunction alleged.”

(PageID.501).

The medical

evidence does not support Plaintiff’s allegations of vomiting, incontinence, or work preclusive
medication side effects. Moreover, as discussed above, the medical evidence fails to demonstrate
that Plaintiff is limited to the extent alleged. In sum, substantial evidence supports the ALJ’s
decision to discount Plaintiff’s subjective allegations. Accordingly, this argument is rejected.
III.

The ALJ Properly Relied on the Testimony of a Vocational Expert
Plaintiff argues that the ALJ’s finding at Step V of the sequential evaluation process

is unsupported by the evidence. While the ALJ may satisfy his burden through the use of
hypothetical questions posed to a vocational expert, such questions must accurately portray
Plaintiff’s physical and mental impairments. See Cline v. Comm’r of Soc. Sec., 96 F.3d 146, 150
(6th Cir. 1996). The hypothetical question which the ALJ posed to the vocational expert simply
asked whether there existed jobs which an individual could perform consistent with Plaintiff’s
RFC, to which the vocational expert indicated that there existed a significant number of such jobs.
The ALJ’s RFC determination is supported by substantial evidence and there was nothing
improper or incomplete about the hypothetical questions the ALJ posed to the vocational expert.
The Court concludes, therefore, that the ALJ properly relied upon the vocational expert’s
testimony.

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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.

Dated: September 10, 2018

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

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