Stockman v. Commissioner of Social Security

Filing 12

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

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMES STOCKMAN,
Plaintiff,

Hon. Ellen S. Carmody

v.
Case No. 1:17-cv-1007
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
_____________________________________/
OPINION
This is an action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C.
' 405(g), to review a final decision of the Commissioner of Social Security denying Plaintiff=s
claim for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) under
Titles II and XVI of the Social Security Act. The parties have agreed to proceed in this Court for
all further proceedings, including an order of final judgment. Section 405(g) limits the Court to
a review of the administrative record and provides that if the Commissioner=s decision is supported
by substantial evidence it shall be conclusive. The Commissioner has found that Plaintiff is not
disabled within the meaning of the Act. For the reasons stated below, the Court concludes that
the Commissioner=s decision is supported by substantial evidence.

Accordingly, the

Commissioner=s decision is affirmed.
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.
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PROCEDURAL POSTURE
Plaintiff was 42 years of age on his alleged disability onset date. (PageID.158).
Plaintiff successfully completed high school and worked previously as a stock clerk and industrial
truck operator. (PageID.46). Plaintiff applied for benefits on July 31, 2014, alleging that he
had been disabled since May 28, 2014, due to degenerative disc disease and bulging and protruding
discs.

(PageID.158-74, 202).

Plaintiff=s applications were denied, after which time he

requested a hearing before an Administrative Law Judge (ALJ). (PageID.77-156). On August
9, 2016, ALJ JoErin O’Leary conducted a hearing with testimony being offered by Plaintiff and a
vocational expert. (PageID.52-75). In a written decision dated September 7, 2016, the ALJ
determined that Plaintiff was not disabled. (PageID.36-47). 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

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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));

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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) degenerative disc disease; (2)
headaches; (3) obesity; (4) chronic pain syndrome; (5) traumatic brain injury; (6) mood disorder;
and (7) anxiety, 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.38-41). With
respect to Plaintiff=s residual functional capacity, the ALJ determined that Plaintiff retained the

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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capacity to perform light work subject to the following limitations: (1) during an 8-hour workday,
he can stand and walk for four hours each; (2) he can never climb ladders, ropes, or scaffolds, but
can occasionally climb ramps/stairs; (3) he can occasionally balance, stoop, kneel, crouch, and
crawl; (4) he can never work around unprotected heights or moving mechanical parts; and (5) he
is limited to simple, routine, repetitive tasks and making simple work-related decisions.
(PageID.41).
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 226,000 jobs in the
national economy which an individual with Plaintiff=s RFC could perform, such limitations
notwithstanding. (PageID.70-73). 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
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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 Evidence
In addition to Plaintiff’s testimony at the administrative hearing and other

statements, the administrative record contained less than 200 pages of medical treatment records.
The ALJ described this evidence as follows:
The claimant has degenerative disc disease and headaches, but these
conditions are not disabling. The claimant's symptom severity is
inconsistent with the diagnostic imaging results. Treatment
providers conducted imaging studies of the claimant's cervical spine
approximately 18 days after the claimant's motor vehicle accident.
These studies indicated that the claimant had a small central disc
protrusion with mild central canal stenosis and no neuroforaminal
narrowing at C4- C5, a moderate disc bulge with moderate to severe
central canal stenosis at C5-C6, and a broad- based disc bulge with
no central canal stenosis at C6-C7 (2F/2). The claimant also had a
disk herniation in his lumbar spine at L5-S1; this was an
exacerbation of a disk herniation present since 2010 (2F/7). Imaging
studies from July 2014 revealed mild stenosis in the thoracic spine
T10-T11 and early stenosis and modest for mineral narrowing at C4C5 and C5-C6 (5F/1).
Though diagnostic imaging results confirm the presence of a severe
impairment, the claimant's condition has improved with relatively
conservative treatment modalities. In June 2014, the claimant
presented for treatment with complaints of back pain. Treatment
providers gave the claimant Decadron, Toradol, and Norco;
treatment providers noted that the claimant experienced good
symptomatic relief(1F/2). They gave the claimant a work release
form, and discharged him with instructions to follow with his
primary care provider (1F/2). Though trigger point injections did not
help, physical therapy, ice, rest, medication, and use of the TENS
unit reduced the claimant's pain. He denied numbness or tingling
(11F/8).

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In June 2014, treatment providers referred the claimant to the
Rehabilitation Department of Spectrum Health. They ordered the
claimant to attend 4 weeks of physical therapy twice a week. The
claimant received cervical/lumbar traction, mobilization manual
therapy, postural instruction, McKinzie exercises, and aerobic
conditioning (2F/8). On June 6, 2014, treatment providers noted that
the claimant required increase[d] time to complete his therapeutic
exercises. However, on June 13, 2014, treatment providers noted
that the claimant was able to perform all therapeutic exercises
without difficulty [and] no complaints of increased pain during or
after his treatment session (2F/13). The claimant reported that he
could possibly start back to work (2F/13). Treatment providers
discharged the claimant on June 18, 2014, stating that the claimant
tolerated all their possessions (sic) well with minimal to no
difficulties in performing the therapeutic exercises and progressions.
Providers further stated that the patient demonstrated the ability to
perform his exercises [at] home safely to continue to improve his
ability to lower his pain levels (2F/16). In July 2016, the claimant
stated that Topamax helped with his headaches (11F/1).
In addition, the claimant's physical examinations and activities of
daily living are inconsistent with his claims of disability. In May
2014, the claimant presented to West Shore Medical Center for
emergency treatment with complaints of back pain (1F/1). Upon
examination, the claimant exhibited pain on palpation paraspinally.
However, there was no midline spinal process tenderness or step off.
The claimant's straight leg raise examinations were negative. The
claimant has strong equal pulses, full strength in his bilateral lower
extremities, and sensation grossly in multiple dermatomes (1F/2).
In June 2014, treatment providers noted that while the claimant did
have some decreased range of motion. However, treatment
providers also noted that he was able to look to either side without
difficulty, while experiencing some discomfort. He can will (sic) all
extremities with no focal weakness furthermore, while the claimant
complained of significant pain and spasm in his back when he went
from sitting to laying down, [his] providers do not feel any palpable
spasm of the lumbar thoracic spine (4F/3). They decided that the
claimant should continue to remain off work until June 23, 2014;
they continued him on the same pain medication regimen (4F/3). In
June 2014, the claimant stated that he returned to work after his
April 2014 accident; he was bending 75 to 150 times a night,
squatting, and picking up steel during this time (2F/8). The claimant
remarked in November 2015 that his pain was mainly in his head
and neck. In July 2014, the claimant exhibited mild cervical and
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lumbar myofascial tenderness, and is straight leg raising test with
mild positive on the right. However, claimant's straight leg raising
test was negative on the left and he had a negative Spurling's test.
Furthermore, the claimant had normal strength and tone in his upper
and lower extremities, and symmetrical deep tendon reflexes (5F/1).
As late as November 2015, the claimant has also shown normal gait
and balance (5F/1; 10F/2).
The claimant is six feet and one inch tall and has weight ranging
from 265.4 to 270 pounds for a Body Mass Index between 35 and
35.6 (8F/1; 10F/2). The claimant is clinically obese. I have
considered how weight affects the claimant's ability to perform
routine movement and necessary physical activity within the work
environment. I am aware that obesity is a risk factor that increases
an individual's chances of developing impairments in most body
symptoms. Obesity can cause limitation of function and the effects
of obesity may not be obvious. The combined effects of obesity with
other impairments may be greater than might be expected without
the disorder. I have. . . considered any added or accumulative effects
the claimant's obesity played on the claimant's ability to function,
and to perform routine movement and necessary physical activity
within the work environment. Based on the impact of these
impairments, the claimant can perform light work except he can
stand for 4 hours and walk for four hours in an 8-hour workday. He
can never climb ladders, ropes, or scaffolds. He can occasionally
climb ramps and stairs. He can occasionally balance, stoop, kneel,
crouch and crawl. He can never work around unprotected heights or
moving mechanical parts.
The claimant has chronic pain syndrome, a traumatic brain injury, a
mood disorder, and anxiety, but these conditions are not disabling.
The claimant has been depressed and displayed a flat affect.
However, from December 2014 through May 2016, the claimant's
psychiatric examination was unremarkable routinely unremarkable.
He showed no psychomotor, mood, affect, speech, or thought
impairments (11F). The claimant has received no psychiatric
medication, counseling, or therapy. Chronic pain appears to
exacerbate his mental condition (11F/2). Based on these
impairments, he is limited to performing simple routine repetitive
tasks and making simple work related decisions.
(PageID.42-44).

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II.

The ALJ Properly Assessed the Medical Opinion Evidence
On July 27, 2016, Dr. Karen Meyer provided a sworn statement in response to

questioning by Plaintiff’s counsel. (PageID.424-33). Dr. Meyer stated that she began treating
Plaintiff in December 2014. (PageID.425). The doctor did not articulate any specific functional
limitations applicable to Plaintiff, but instead simply asserted that Plaintiff was unable to return to
work because he would be “off-task” “probably about 50 percent” of the time and would be absent
more than two days monthly. (PageID.424-33). The ALJ afforded Dr. Meyer’s opinions “little
weight.” (PageID.45). Plaintiff argues that he is entitled to relief because the ALJ failed to
afford controlling weight to the opinion of his treating physician. The Court disagrees.
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,
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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 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

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1254, 1258 (10th Cir. 2007); Undheim v. Barnhart, 214 Fed. Appx. 448, 450 (5th Cir., Jan. 19,
2007).
First, to the extent Dr. Meyer simply asserted that Plaintiff was unable to work,
such is entitled to no deference as such is a matter expressly reserved to the Commissioner.
See 20 C.F.R. §§ 404.1527(d)(1); 416.927(d)(1).

To the extent that Dr. Meyer offered

observations that constitute a “medical opinion,” see 20 C.F.R. §§ 404.1527(a)(2); 416.927(a)(2),2
the ALJ discounted such on the ground that they were “inconsistent with [Plaintiff’s] physical
examination findings, objective medical evidence, and [Plaintiff’s] daily activities.”
(PageID.45). This determination is supported by substantial evidence.
As the ALJ observed, Plaintiff has been treated with conservative measures.
(PageID.248-49, 255-57, 272-81, 317-18). Such treatment is inconsistent with Dr. Meyer’s
opinion that Plaintiff is incapable of working.

See, e.g., Myatt v. Commissioner of Social

Security, 251 Fed. Appx. 332, 335 (6th Cir., Oct. 16, 2007) (a claimant’s “modest treatment
regimen. . .is inconsistent with a diagnosis of total disability”). Dr. Meyer’s treatment notes are
inconsistent with her subsequent sworn statement. (PageID.380-423). A neurosurgeon who
examined Plaintiff recommended conservative treatment. (PageID.317-18). Another physician
who examined Plaintiff concluded that Plaintiff could perform light work in which he “regularly”
lifted “up to 20 pounds.” (PageID.442-46). The ALJ recognized that Plaintiff experiences
several severe impairments which impose significant functional limitations. Such are adequately
accounted for in the ALJ’s RFC assessment which has not been challenged by Plaintiff. Dr.

2
These provisions define a medical opinion as “statements from physicians and psychologists or other acceptable
medical sources that reflect judgments about the nature and severity of your impairment(s), including your
symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental
restrictions”).

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Meyer’s opinion that Plaintiff is far more limited was discounted by the ALJ for reasons that were
clearly articulated and supported by substantial evidence. Accordingly, this argument is rejected.
CONCLUSION
For the reasons articulated herein, the Court concludes that the ALJ=s decision is
supported by substantial evidence. Accordingly, the Commissioner=s decision is affirmed. A
judgment consistent with this opinion will enter.

Date: September 26, 2018

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

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