Scobey v. Commissioner of Social Security

Filing 16

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

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BRENDA SCOBEY,
Plaintiff,

Hon. Ellen S. Carmody

v.
Case No. 1:17-cv-987
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) under Title II 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.

2

PROCEDURAL POSTURE
Plaintiff was 40 years of age on her alleged disability onset date. (PageID.166).
She successfully completed high school and worked previously as a government auditor.
(PageID.51-52). Plaintiff applied for benefits on April 22, 2014, alleging that she had been
disabled since February 8, 2013, due to polymyositis, fibromyalgia, depression, and anxiety.
(PageID.166-72, 191).

Plaintiff=s application was denied, after which time she requested a

hearing before an Administrative Law Judge (ALJ). (PageID.86-164).
On June 10, 2016, Plaintiff appeared before ALJ Donna Grit with testimony being
offered by Plaintiff and a vocational expert. (PageID.60-84). In a written decision dated July
27, 2016, the ALJ determined that Plaintiff was not disabled. (PageID.36-53). The Appeals
Council declined to review the ALJ=s determination, rendering it the Commissioner=s final decision
in the matter. (PageID.26-30). 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

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));

3

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.
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) obesity; (2) fibromyalgia; (3)
bilateral carpal tunnel syndrome; (4) status-post cervical fusion; and (5) migraines, 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.38-42).

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

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 10 pounds occasionally and less than 10 pounds frequently; (2) during an 8-hour
workday, she can sit and stand/walk for 6 hours each; (3) she cannot climb ladders, ropes, or
scaffolds, but she can occasionally climb ramps and stairs; (4) she can occasionally balance, stoop,
kneel, crouch, crawl, and reach bilaterally overhead; (5) she is limited to frequent bilateral handling
and fingering; and (6) she must avoid more than occasional exposure to extremes of heat and cold,
vibration, the use of vibratory tools, dangerous moving machinery, and unprotected heights.
(PageID.42-43).
Based on the testimony of a vocational expert, the ALJ found that Plaintiff was able
to perform her past relevant work as an auditor. (PageID.79-80). The vocational expert also
testified that there existed approximately 165,000 jobs in the national economy which Plaintiff
could perform consistent with her RFC. (PageID.79-80). The vocational expert additionally
testified that if Plaintiff were further limited in that she required a sit-stand option and could
stand/walk for only 2 hours daily, there still existed approximately 75,000 jobs in the national
economy which Plaintiff could perform. (PageID.80-81). Accordingly, the ALJ concluded that
Plaintiff was not entitled to disability benefits.
I.

ALJ’s Description of the Relevant Medical Evidence
The ALJ discussed the medical evidence at great length. Specifically, the ALJ

stated as follows:
The claimant presented to her primary care physician, Mary Pell,
DO, on March 5, 2013, requesting that Dr. Pell complete short-term
disability paperwork on the claimant's behalf (Ex. 17F/80-81). The
note indicated that the claimant had last worked in February of 2013
5

(Id.). Interestingly, the claimant had an unremarkable physical
examination, and no diagnosis was found (Id.).
The claimant has a history of migraines since her early 20's (Ex.
5F/14). When she was younger she had one or two bad headaches
per year, with a number of more mild headaches throughout the year
(Id.). However, as she got older her headaches worsened. By the
time she was in her mid-30's the claimant reported that she had daily
headaches (Id.). She began getting Botox injections in early 2012,
and reported good reduction in headache symptoms with Botox
therapy (Id.).
The claimant had a consultation with Michael Grof, DO, in March
of 2013 for her complaints of numbness in her hands and feet (Ex.
1F/22). The claimant noted that her physical therapist had thought
she might have fibromyalgia, but the claimant had not seen a
rheumatologist at this time (Id.). On physical examination all the
claimant's muscles had normal power; they were all very tender to
palpation diffusely, with marked tenderness between the joints; but
her coordination appeared normal (Ex. 1F/24). She also had sensory
loss in the median nerve distribution of the hand on both sides; but
she had normal sensation across the foot all the way with no
dermatomal abnormalities, and no loss of sensory modalities over
the feet (Id.). Finally, her reflexes were 2+/4 and symmetric
although a little more sluggish with the triceps, but Dr. Grof
though[t] this was likely due to the claimant's frame than anything
else (Id.).
Dr. Grof diagnosed the claimant with migraine cephalgia without
aura, being treated with Botox; muscle contraction cephalgia;
diffuse myalgia and aithralgias, rule-out polymyositis; numbness in
hands due to carpal tunnel syndrome; severe pain in legs with
activity and weakness; and possible cervical spine abnormalities
(Id.). The claimant was not taking any medications for pain
management at that time, and Dr. Grof advised the claimant that she
could take 800mg Ibuprofen twice daily (Ex. 1F/25).
Dr. Grof had the claimant get an EMG. The EMG showed a very
slight to minimal median neuropathy at the wrist, on the right; and
probably a remote, stable L5 radiculopathy on the right without
evidence of active denervation; and very clear evidence of a diffuse
proximal myopathic process (Ex. 1F/17-18). Dr. Grof noted that
there was EMG evidence of carpal tunnel syndrome, but he noted
that it was so mild that he did not expect that it would have given
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the degree of symptomology that the claimant complained of (Ex. 1
F/16).
Dr. Grof also noted in April of 2013 that the claimant had
compression of her cervical spine (Ex. 1F/15). But he indicated that
it was not that especially severe, but it might warrant consideration
for possible decompressive surgery (Id.). MRI of the claimant's
cervical spine showed posterior disc osteophyte complex of the C5C6 level effacing the ventral thecal sac and mildly flattening the left
ventral spinal cord; moderate right C5-C6 neural foraminal
narrowing; and a small left thyroid nodule (Ex. 1F /27).
By August of 2013, Dr. Grof noted that the claimant had received
four IV infusions of Methylprednisolone, and the claimant reported
feeling that her legs had gotten "much stronger" (Ex. 1F/13).
However, she complained that her arms felt weaker (Id.). Dr. Grof
indicated that did not make any sense in treating claimant's
myopathy with steroids, and he found that the claimant had some
radicular symptoms in her arms where there was numbness and
tingling radiating from the neck down following a mostly C6
distribution on the left (Id.). The claimant reported that her arms
were weak when she would try to raise them over her head, but
otherwise Dr. Grof did not feel that they seemed to be that weak
(Id.).
Dr. Grof re-evaluated the claimant in October of 2013 for her
complaints of pain and weakness in her hands and feet (Ex. 1F/7).
The claimant continued to complain that she was losing feeling in
her feet (Id.). However, Dr. Grof noted that based on the claimant's
reports and findings that day, that he thought the claimant's
myopathic abnormality was markedly improved (Ex. 1F/8). He
noted that her symptoms fit with a mild L5 radiculopathy but the
majority of her pain seemed to be related more to swelling in her
legs and neuropathic changes (Id.). And he specifically noted that
claimant's peroneal sensory nerve on both sides was totally normal,
which suggested that a peripheral neuropathic cause was unlikely
(Id.).
The claimant's EMG showed a markedly improved myopathic
process; and persistent L5 radiculopathy without evidence of
significant active denervation, but no evidence of a polyneuropathy
(Ex. 1F/10). Dr. Grof noted that the claimant had some "rather
dramatic description of her complaints relative to the objective
findings" (Ex. 1F/9). For instance, the claimant asserted that her
hands frequently went completely numb and she could not feel
7

anything, but there was no evidence of her cervical spine causing
that degree of widespread conduction block to cause that, and there
was only the "minimalist" amount of peripheral nerve damage from
carpal tunnel syndrome seen when she was tested (Id.). She also
described excmciating pain in her feet, with weakness, but Dr. Grof
felt that it also appeared that the claimant tolerated this alleged pain
fairly well (Id.).
The claimant was scheduled to have surgery on her cervical spine in
December of 2013. At her pre-operative examination the claimant
had decreased range of motion in her cervical spine (Ex.21F/23). On
December 26, 2013, the claimant had C5-C6 anterior cervical
discectomy and fusion procedure (Ex. 2F/7). At her follow-up
appointment in March of 2014 the claimant reported that her neck
and arm pain were better (Ex. 10F/1). On physical examination the
claimant had good motor strength (id.). Dr. Winestone felt the
claimant was doing well, and he cleared the claimant to slowly
resume her usual activities (Id.).
The claimant had a clinic visit and follow-up appointment and
ultrasound for her thyroid in May of 2014 (Ex. 34F/1). She reported
at that time that she was doing much better since her neck surgery,
noting that she was doing "okay" these days (Id.).
The claimant had an EMG in July of 2014. The EMG showed mild
left median mononeuropathy at the wrist; and several sparse pockets
of increased insertional and spontaneous activity within several
muscles tested, which was consistent with an acute to subacute
lower cervical radiculopathy, but other possibilities were noted to
need consideration (Ex. 7F/17).
The claimant's pain clinic notes documented significant migraine
symptom relief with Botox injections. Specifically, she reported
between 50 to 90 percent symptom relief for up to 10 weeks (Ex.
6F, l IF, and 3 IF). The claimant testified that Botox injections did
help her migraine symptoms a lot, reducing her symptoms from
daily to approximately once or twice per week (Testimony at
8:49:24). However, her complaint was that the efficacy of the Botox
injections typically wore off a few weeks short of her next injection
(Id.).
The claimant was evaluated at the University of Michigan
rheumatology clinic in February of 2015 (Ex. 24F/66-68). She was
diagnosed with fibromyalgia (Ex. 24F/68). She was advised at that
time that a key aspect in fibromyalgia management was for the
8

claimant to appreciate that when her symptoms decreased in
response to pharmacological therapy, she needed to correspondingly
increase her functioning (Ex. 24F/69-70). It was noted that this
increase in function and activity could result in continuing reduction
in complaints of pain, fatigue, and other symptoms (Ex. 24F/70).
Finally, pain clinic treatment notes from February of 2016 indicated
that the claimant had 85 percent relief in her migraine symptoms,
for 10 weeks, with Botox injections (Ex. 31F/7). She described her
overall function as "vastly improved" (Id.). On physical examination
the claimant's muscle tone was normal, and her gait was nonantalgic, and unassisted (Ex. 31F/8).
(PageID.44-46).
II.

The ALJ Properly Evaluated the Medical Opinion Evidence
Three of Plaintiff’s care providers made observations or expressed opinions to

which the ALJ afforded limited weight: (1) Dr. Michael Grof; (2) Dr. Mary Pell; and (3) Dr. Eric
Kozfkay. (PageID.48-51). Plaintiff argues that she is entitled to relief on the ground that the
ALJ “essentially rejected all of those opinions.” (ECF No. 13 at PageID.1991). The Court notes
that the relevant question is not whether the ALJ discounted these particular opinions, but instead
whether the ALJ articulated good reasons for doing so. Because the ALJ articulated good reasons,
supported by substantial evidence, for discounting the opinions in question, this argument is
rejected.
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.
9

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.

10

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).
A.

Dr. Grof

On October 13, 2013, Dr. Grof reported that Plaintiff “thinks she would be unable
to do full time work because her muscles begin aching severely in her legs if she walks for more
than 15 minutes or stands on them more than 15 minutes.” (PageID.300). The doctor further
noted that Plaintiff “admits, however, that she can sit for much longer periods of time if forced to
do so.” (PageID.300). Dr. Grof further observed:
I cannot honestly state that I feel she is totally disabled. I definitely
cannot state that she is unable to sit for greater than 30 minutes.
She can use her arms and her hands well enough to type, write and
perform typical office-based duties of a clerical or office assistant
nature. She does have some neck pain, some other diffuse
neuropathic pain in her limbs but it is not a disabling type of pain,
by her own admission. I do think that a full eight hour day would
be pretty hard for her to get through. I do feel that she has a
neuromuscular condition that causes pain with muscular activity and
that the more she do[es] with it, the worse the pain will get.
Therefore, very limited repetitive physical activity would be
recommended. However, she should be able to drive from one
11

appointment to another for work. She also should be able to sit and
do light duty desk work for at least an hour at a time with a slight
break and then return to the same thing.
(PageID.300).
On October 31, 2013, Dr. Grof supplemented his opinion with the following
observations:
if Ms. Scobey is required by her job to remain seated for a period
longer than 45 minutes without being able to even stand up and
stretch her legs, walk around or just stand still, then I would have to
deem her completely disabled from that job because it would be
expected that, in her condition, prolonged sitting in one position,
longer than 45 minutes, will cause disabling pain. This is a
subjective complaint but it is reasonable and not an unusual
complaint in individuals such as Ms. Scobey. Though there is no
objective neurological reason for this, the production of intense pain
from prolonged pressure in certain positions without allowing
replenishing revascularization through the natural use of body
mechanic movement, could definitely produce pain that is intense
enough to distract her mind from what she should be thinking about
doing with her job.
(PageID.301).
In support of her decision to discount Dr. Grof’s opinions and observations, the
ALJ stated as follows:
The opinions of Michael Grof, DO, are given limited weight, and
not controlling weight. Dr. Grof initially indicated that he could not
honestly state that the claimant was totally disabled (Ex 1F/5). And
he did not feel he could state that she was unable to sit for greater
than 30 minutes (Id.). He felt she could use her arms and hands well
enough to type, write, and perform typical office-based duties of a
clerical or office assistant nature (Id.). He noted that the claimant
had some neck pain, and some other diffuse neuropathic pain in her
limbs, but it was not a disabling type of pain, by the claimant's own
admission (Id.). He noted that a full eight-hour day would be hard
for the claimant to get through, and he did feel the claimant had a
neuromuscular condition that caused pain with muscular activity
and the more she did with it, the worse the pain would get (Id.). He
therefore concluded that the claimant could perform very limited
12

repetitive physical activity; however, he felt she would be able to
drive from one appointment to another for work; and she would be
able to sit and do light duty desk work for at least an hour at a time
with a slight break and then return to the same thing (Id.). Dr. Grof
explained that he discussed these physical opinions with the
claimant, and she was pretty much in agreement (Id.).
However, Dr. Grof later noted that he made some mistakes in his
earlier assessment of the claimant (Ex. 1F/6). He opined that if the
claimant was required to remain seated for more than 45 minutes
without being able to stand up and stretch her legs, walk around, or
just stand still, then he felt the claimant was completely disabled
(Id.). He explained that this conclusion was based on the claimant's
subjective complaints, but he also felt that it was a reasonable
conclusion. He explained that there was no objective neurological
reason for the claimant's production of intense pain, but that
prolonged pressure in certain positions without allowing
replenishing revascularization through the natural use of body
mechanic movement could produce pain that was intense enough to
distract the claimant's mind from what she needed to think about to
do her job (Id.). He felt that was disabling (Id.).
Dr. Grof s opinions are given limited weight and not controlling
weight because they were internally inconsistent, as well as
inconsistent with the record. Dr. Grof s opinions are internally
inconsistent because he completely changed his opinions
concerning the claimant's functional abilities in his two assessments,
despite indicating in the first assessment that he specifically
discussed his opinions with the claimant, aud she expressed
agreement with his conclusions. Dr. Grof also focused on the
claimant's past work, but that is not the only issue of relevance in
the sequential evaluation process. Dr. Grof noted that there was no
objective neurological reason for the claimant's complaints of pain,
and explained that his conclusion that the claimant was disabled was
based on her subjective complaints, and his explanation concerning
movement to alleviate some of her pain. Dr. Grofs reliance on the
claimant's subjective complaints is misplaced. Especially
considering that the many mental status examinations noted
throughout the treatment notes indicated that the claimant did not
have significantly limited concentration. Finally, Dr. Grof s opinion
that the claimant was disabled was an opinion on an issue reserved
to the Commissioner, and involved vocational considerations for
which he is not an expert. Therefore, for all these reasons, the
opinions of Dr. Grof are given limited weight, and not controlling
weight.
13

(PageID.48-49).
The ALJ’s rationale for discounting Dr. Grof’s opinion is clearly stated, consistent
with the administrative record, and supported by substantial evidence.

In support of her

argument, Plaintiff has failed to identify any medical evidence which undercuts the ALJ’s analysis.
Instead, Plaintiff merely wants this Court to reweigh the evidence that was presented to the ALJ.
This is not a proper basis for relief. See, e.g., Reynolds v. Commissioner of Social Security, 424
Fed. Appx. 411, 414 (6th Cir., Apr. 1, 2011) (the court “reviews the entire administrative record,
but does not reconsider facts, re-weigh the evidence, resolve conflicts in the evidence, decide
questions of credibility, or substitute its judgment for that of the ALJ”).
The Court further notes that any error regarding the assessment of Dr. Grof’s
opinion is harmless. The vocational expert testified that if Plaintiff also required a sit-stand option
and could stand/walk for only two hours daily there still existed a significant number of jobs which
she could perform. Dr. Grof’s opinion is not inconsistent with this particular hypothetical which
undermines Plaintiff’s claim of complete disability. Because any error in this regard is harmless,
relief is not appropriate. See Shinseki v. Sanders, 556 U.S. 396, 407 (2009) (recognizing that the
harmless error doctrine is intended to prevent reviewing courts from becoming “impregnable
citadels of technicality”); Heston v. Commissioner of Social Security, 245 F.3d 528, 535-36 (6th
Cir. 2001) (recognizing that remand to correct an error committed by the ALJ unnecessary where
such error was harmless); Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (“no principle of
administrative law or common sense requires us to remand a case in quest of a perfect opinion
unless there is reason to believe that the remand might lead to a different result”); Berryhill v.
Shalala, 1993 WL 361792 at *7 (6th Cir., Sep. 16, 1993) (“the court will remand the case to the
14

agency for further consideration only if ‘the court is in substantial doubt whether the administrative
agency would have made the same ultimate finding with the erroneous finding removed from the
picture...’”).
B.

Dr. Pell

On March 9, 2013, Dr. Pell completed a brief form report in which she stated that
Plaintiff could perform “no work.” (PageID.1014). The doctor also reported that Plaintiff
should “be able to return to work in [her] occupation” on April 15, 2013. (PageID.1014). In
response, Plaintiff wrote to Dr. Pell requesting that she complete the form again. (PageID.1120).
Plaintiff detailed for Dr. Pell several of her medical complaints and stated, “the only way to
preserve my job is to say I am currently disabled.” (PageID.1120). On April 22, 2013, Dr. Pell
completed another brief form in which she reported that Plaintiff was unable to perform her thencurrent job because Plaintiff “can’t sit or stand without pain.” (PageID.1121). Dr. Pell further
reported that Plaintiff would be disabled from her then-current job through February 28, 2014.
(PageID.1121).
In support of her decision to discount Dr. Pell’s opinions, the ALJ stated:
The opinions of Mary Pell, DO, are given little weight and not
controlling weight. The claimant wrote a letter to Dr. Pell in April
of 2013 indicating that she was scheduled for a biopsy to see if she
had muscle disease; and neck surgery for her symptoms of
numbness in her arms and hands (Ex. 19F/5). Additionally, she
noted that an MRI had shown a growth on her thyroid, which the
claimant felt might need removal (Id.). She went on to explain that
she needed some time to take care of these things, and the only way
for her to preserve her job was for Dr. Pell to "say I am currently
disabled[“] (Id.). Dr. Pell subsequently completed a form on the
claimant's behalf (Ex. 19F/6). She opined that the claimant was
unable to sit or stand comfortably, or without pain, and that her
symptoms had been present from February 28, 2013 through the
present, which at that time was April of 2013 (Id.). The opinions of
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Dr. Pell are given little weight, and not controlling weight, as her
opinions are merely a recitation of the claimant's symptoms and
subjective complaints. Furthermore, the note that the claimant could
not sit or stand without pain is not helpful in establishing the
claimant's maximum residual functional abilities. Therefore, the
opinions of Dr. Pell are given no weight.
(PageID.49-50).
The ALJ’s rationale for discounting Dr. Pell’s opinion is clearly stated, consistent
with the administrative record, and supported by substantial evidence. The Court notes that
another legitimate reason for discounting Dr. Pell’s opinion is that the doctor’s opinion was limited
to Plaintiff’s ability to perform her then-current position rather than identifying, more generally,
Plaintiff’s ability to perform work-related activities. The Court again notes that Plaintiff has
failed to identify any medical evidence which is contrary to the ALJ’s analysis. Instead, Plaintiff
merely wants this Court to reweigh the evidence that was presented to the ALJ, which as noted
above is not appropriate.
C.

Dr. Kozfkay

On May 31, 2016, the doctor provided a sworn statement in which offered several
vague statements regarding Plaintiff’s ability to perform work-related activities. (PageID.196064).2 For example, the doctor stated “due to the severity of the pain and it affecting her whole
body, as well as her issues with not being rested and cognitive slowing, any laborious position or
any position that would cause undue mental stress would affect her ability to maintain full-time
employment.” (PageID.1962). With respect to specific functional limitations, Dr. Kozfkay
reported that during an 8-hour day Plaintiff could stand/walk no more than one hour.

2

This document is contained in Exhibit 39. Exhibit 40 contains a signed, but more difficult to read, version of this
same document.

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(PageID.1963). The doctor also reported that Plaintiff’s pain would interfere with her ability to
perform even simple tasks approximately 50-75 percent of the workday. (PageID.1964).
In support of her decision to discount Dr. Kozfkay’s opinions, the ALJ stated as
follows:
The opinions of Dr. Kozfkay noted in Exhibits 39F and 40F are
given little weight, and not controlling weight. Dr. Kozfkay
explained that he felt the claimant was disabled at that time, as well
as before, due to her severe pain affecting her whole body, and her
issues with not being well rested, being cognitively slow, and the
effects of mental stress on the claimant (Ex. 39F and 40F). He felt
that the claimant could not perform sedentary work because she had
an impaired sleep cycle, which affected her cognitive functioning
and decision making skills (Id.). And he felt that the claimant could
not perform any laborious position or any position that could cause
her undue stress, because this would affect her ability to maintain
full-time employment (Id.). He opined that the claimant could
probably occasionally lift and carry up to 10 pounds; her grips
strength demonstrated at the independent medical examination was
below normal; she could stand and/or walk for one hour in an eighthour workday; her ability to lift, carry, stand, and walk was limited
due to her severe pain; she would require a sit/stand option; she
would need the option to sit or stand every five to 10 minutes; she
would be off task 50 to 75 percent of the workday; and her
limitations had been present since February of 2013 (Id.).
Dr. Kozfkay opined that the claimant was disabled due to her severe
pain. However, our regulations establish that pain cannot be the sole
basis for limitations, HALLEX II-4-1-3. Additionally, Dr.
Kozfkay's references to the claimant's cognitive functioning were
directly contradicted by the many mental status examinations noted
throughout the record. The statement that "any position" would
cause the claimant undue mental stress, which would in tum affect
her ability to work was not supported by the record. Dr. Kozfkay
suggests that all work would be too mentally stressful for the
claimant. However, the claimant does not have a severe mental
impairment, and as noted throughout this decision, she had
consistently normal or near normal mental status examinations
performed by several different providers, in a variety of different
situations. Dr. Kozfkay went on to opine that the claimant would be
off task 50 to 75 percent of the workday. However, it is important to
note that in Dr. Kozfkay's own treatment notes he consistently found
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the claimant had normal muscle tone; and non-antalgic, unassisted
gait (Ex. 6F, 11F, and 31F). Furthermore, other than complaints of
anxiety, stress, depression, and problems sleeping, neither he nor his
staff ever noted that the claimant had significant attention or
concentration issues (Id.). Finally, Dr. Kozfkay opined that the
claimant would need to alternate between sitting and standing every
five to 10 minutes. However, this would result in the claimant
standing or walking more than one hour in an eight-hour workday,
which was the maximum amount of time he opined the claimant
could stand or walk. Therefore, his opinions were not only
inconsistent with the record; they were internally inconsistent and
mathematically inaccurate. Therefore, the opinions of Dr. Kozfkay
noted in Exhibits 39F and 40F are given little weight, and not
controlling weight.
(PageID.50-51).
The ALJ’s rationale for discounting Dr. Kozfkay’s opinion is clearly stated,
consistent with the administrative record, and supported by substantial evidence. The Court again
notes that Plaintiff has failed to identify any medical evidence which undermines the ALJ’s
analysis. Instead, Plaintiff merely wants this Court to reweigh the evidence that was presented to
the ALJ, which as noted above is not appropriate.
Plaintiff also incorrectly argues that because Plaintiff was diagnosed with
fibromyalgia, the opinions of her treating physicians “deserve even more credence.” (ECF No.
13 at PageID.1991). In support of this argument, Plaintiff cites to Rogers v. Commissioner of
Social Security, 486 F.3d 234 (6th Cir. 2007). In Rogers, the Sixth Circuit faulted an ALJ for
failing to articulate good reasons, supported by substantial evidence, for discounting the opinion
of a treating physician of a claimant who had been diagnosed with fibromyalgia. Id. at 237.
However, the Sixth Circuit’s decision was not based upon a failure by the ALJ to afford “more
credence” to the opinions in question. Instead, the court merely reiterated the well-known treating
physician rule and concluded that the ALJ in that case failed to comply with such. Id. 242-46.
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The Rogers court neither stated nor suggested that ALJs or courts are obligated to afford “even
more credence” to a treating physician’s opinion on the subject of fibromyalgia. In sum, Rogers
merely reiterates that ALJ’s must comply with the treating physician rule when evaluating the
opinions of a treating physician. Because the ALJ complied with the treating physician rule in
this instance, this argument is rejected.
III.

The ALJ Properly Considered Plaintiff’s Subjective Allegations
At the administrative hearing, Plaintiff testified that she is far more limited than the

ALJ concluded. For example, Plaintiff testified that she is unable to “even hold the vacuum
cleaner” or “lift something off the stove.” (PageID.75-76). Plaintiff reported that she is unable
to work because she “can’t focus” and experiences work-preclusive pain. (PageID.78). Plaintiff
reported, however, that she continues to drive, read, and perform crossword puzzles.
(PageID.76). The ALJ discounted Plaintiff’s subjective allegations on the ground that such “are
not entirely consistent with the record.” (PageID.46-47). Plaintiff argues that she is entitled to
relief because, “[o]nce again, this ALJ’s credibility determination was insufficient as a matter of
law.” (ECF No. 13 at PageID.1993-94).
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
19

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 *4-9.3
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).
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

3

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).

20

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.
In support of her decision to discount Plaintiff’s subjective allegations, the ALJ
stated as follows:
I first note that the claimant's statements concerning the intensity,
persistence, and limiting effects of her symptoms are not entirely
consistent with the record. The claimant alleges disabling
impairments, but most of the claimant's strength tests noted
throughout the record were good. Her carpal tunnel syndrome has
been described as mild and she told the independent medical
examiner that she did not wear splints (Ex. 36F/2). Her L5
radiculopathy has been noted as chronic, but it was also noted to be
21

stable, and there was no evidence of lower extremity weakness on
physical examinations. Despite the claimant's complaints of
fibromyalgia, she had good muscle tone on physical examinations.
And she reported improvement in her neck symptoms following her
discectomy and fusion procedure. Finally, the claimant has reported
significant benefit from her Botox treatments for her migraines. She
has not only reported symptom reduction, but overall functional
improvement due to her treatment at the pain clinic (Ex. 3lF/7).
Therefore, the claimant's statements concerning the intensity,
persistence, and limiting effects of her symptoms are not entirely
consistent with the record.
The claimant also reported to the independent medical examiner that
she used a walker and needed help arising, and she used a number
of aids and devices around the home, including a bathtub seat and
bar, long handled appliances, a jar opener, and a device for picking
things up from the floor (Ex. 36F/6). However, her pain clinic
treatment notes consistently noted that the claimant had a nonantalgic, bilaterally unassisted gait (Ex. 6F, 11F, and 31F). And the
independent medical examiner noted that despite the claimant's
complaints of "screaming pain" in certain areas, no pain behaviors
were observed during the examination, even with palpation of the
areas in question that the claimant claimed elicited extreme pain
reactions (Ex. 36F/7).
These factors are inconsistent with the claimant's statements
concerning the intensity, persistence, and limiting effects of her
symptoms.
(PageID.46-47).
The ALJ’s rationale for discounting Plaintiff’s testimony is supported by
substantial evidence and consistent with the legal standard articulated above. The Court is not
persuaded by Plaintiff’s argument that the Court should re-weigh the evidence which was
presented to the ALJ. Accordingly, this argument is rejected.
IV.

The ALJ Properly Evaluated Plaintiff’s Impairments
Plaintiff argues that she is entitled to relief because the ALJ failed to find that her

“struggles with irritable bowel syndrome and with frequent urinary symptoms” constitute severe
22

impairments. (ECF No. 13 at PageID.1994). At step two of the sequential disability analysis
articulated above, the ALJ must determine whether the claimant suffers from a severe impairment.
The Sixth Circuit has held that 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 her decision. See, e.g., 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”); Winn v. Commissioner of Social Security, 615 Fed. Appx. 315, 326 (6th Cir.,
June 15, 2015) (same).
Here, the ALJ determined that Plaintiff suffered from severe impairments at step
two of the sequential analysis and continued with the remaining steps thereof, considering in detail
the medical evidence of record. The record does not suggest that Plaintiff’s bowel or urinary
issues impose on her any limitations which are inconsistent with her RFC. Thus, even if it is
assumed that the ALJ erred in failing to find that these conditions constitute severe impairments,
such does not call into question the substantiality of the evidence supporting the ALJ’s decision.
This argument is, therefore, rejected.
V.

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 her 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
23

(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.
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 28, 2018

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

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