Moss v. Commissioner of Social Security

Filing 17

OPINION; signed by Magistrate Judge Sally J. Berens (jln)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JACKEE AARON MOSS,
Plaintiff,
v.

Hon. Sally J. Berens

COMMISSIONER OF
SOCIAL SECURITY,

Case No. 1:20-cv-243

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 claims 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 and in accordance with the
law it shall be conclusive. The Commissioner has found that Plaintiff is not disabled within the
meaning of the Act. Plaintiff seeks judicial review of this decision.
For the following reasons, the Court will affirm the Commissioner’s decision.
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
Servs., 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 his
decision and whether there exists in the record substantial evidence supporting that decision. See
Brainard v. Sec’y of Health and Human Servs., 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 those 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 Dept. of Health and Human Servs., 964 F.2d 524, 528 (6th Cir. 1992). 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 Dept. of Health and Human Servs., 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). 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 filed applications for DIB and SSI on August 21, 2017, alleging that he became
disabled as of December 9, 2016, due to depression, anxiety, attention deficit hyperactivity
disorder (ADHD), and sleep disorder. (PageID.108.) Plaintiff was age 37 at the time of his alleged
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onset date. (Id.) Plaintiff had previous employment as a document reviewer/paralegal/attorney.
(PageID.66, 302.) After Plaintiff’s applications were denied, he requested a hearing before an
Administrative Law Judge (ALJ).
ALJ Amy L. Rosenberg conducted a hearing on March 1, 2019, and received testimony
from Plaintiff and David Huntington, an impartial vocational expert. (PageID.56.) On April 19,
2019, the ALJ issued a written decision finding that Plaintiff was not disabled from his alleged
onset date through the date of the decision. (PageID.56–69.) The Appeals Council denied
Plaintiff’s request for review on January 17, 2020, making ALJ Rosenberg’s March 1, 2019
decision the Commissioner’s final decision. See Cook v. Comm’r of Soc. Sec., 480 F.3d 432,434
(6th Cir. 2007).
Plaintiff initiated this action for judicial review on March 18, 2020.
Analysis of the ALJ’s Opinion
The social security regulations articulate a five-step sequential process for evaluating
disability. See 20 C.F.R. §§ 404.1520(a-f), 416.920(a-f).1 If the Commissioner can make a
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1. An individual who is working and engaging in substantial gainful activity will not be found
to be “disabled” regardless of medical findings (20 C.F.R. §§ 404.1520(b), 416.920(b));
2. An individual who does not have a “severe impairment” will not be found “disabled” (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 “meets or equals” a listed impairment in Appendix 1 of
Subpart P of Regulations No. 4, a finding of “disabled” 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 “not disabled”
must be made (20 C.F.R. §§ 404.1520(e), 416.920(e));
5. If an individual’s impairment is so severe as to preclude the performance of past work,
other factors including age, education, past work experience, and residual functional
capacity must be considered to determine if other work can be performed (20 C.F.R.
§§ 404.1520(f), 416.920(f)).
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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
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 functional 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).
After finding that Plaintiff had not engaged in substantial gainful activity since his alleged
onset date, the ALJ found that Plaintiff suffered from the following severe impairments: (1)
depressive disorder; (2) anxiety disorder; and (3) ADHD. (PageID.59.) At step three, the ALJ
determined that Plaintiff does not have an impairment or combination of impairments that meets
or medically equals any impairment identified in the Listing of Impairments detailed in 20 C.F.R.,
Part 404, Subpart P, Appendix 1. (PageID.59–60.) The ALJ specifically considered listings 12.04,
12.06, and 12.11. As for the “paragraph B” factors, the ALJ found that Plaintiff was mildly limited
in the areas of understanding, remembering, or applying information; not limited at all in the area
of interacting with others; moderately limited in the areas of concentrating, persisting, and
maintaining pace; and moderately limited in the areas of adapting and managing oneself. (Id.)

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With respect to Plaintiff’s RFC, the ALJ determined that Plaintiff retained the capacity to
perform a full range of work at all exertional levels subject to the following nonexertional
limitations:
He can understand, remember, and carry out simple, routine tasks, and simple
work-related decisions. He cannot perform a job that requires compliance with
strict time deadlines or strict production quotas. He can tolerate occasional changes
in the routine work setting.
(PageID.61.)
At step four, the ALJ determined that Plaintiff was unable to perform his past relevant
work. (PageID.66–67.) At step five, however, based on testimony from the vocational expert, the
ALJ found that Plaintiff could perform the occupations of hospital food service worker, industrial
cleaner, and linen room attendant, 539,000 of which existed in the national economy that an
individual of Plaintiff’s age, education, work experience, and RFC could perform. (PageID.67–
68.) This represents a significant number of jobs. See, e.g., Taskila v. Comm’r of Soc. Sec., 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’”).
Discussion
Plaintiff raises one issue in his appeal: the ALJ failed to properly assess the opinions of his
treating physician, Douglas Ruben, Ph.D., which were supported by a previous consultative
examination by Jonathan Shy, Ph.D., as well as other evidence in the record. (ECF No. 14 at
PageID.516.)
The ALJ evaluated three medical opinions. First, Leonard Balunas, Ph.D., the State agency
psychological consultant, opined that Plaintiff was moderately limited in the areas of
understanding, remembering, or applying information, concentrating, persisting, or maintaining
pace, and adapting or managing himself, and mildly limited in interacting with others.
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(PageID.113.) Dr. Balunas opined that Plaintiff could understand and remember one- and two-step
instructions, could carry out one- and two-step tasks that do not require sustained concentration or
working in close proximity with others, and could tolerate occasional changes in the work setting.
(PageID.115–16.) The ALJ found Dr. Balunas’s opinion mostly persuasive, concluding that the
portion of the opinion limiting Plaintiff from working in close proximity with others was not
supported by the record. (PageID.66.)
Next, consultative examiner John Jeter, M.A., L.L.P., L.M.S.W. (and his supervisor, Hugh
Bray, Ph.D., L.P.), opined that Plaintiff’s ability to comprehend and carry out simple directions
and perform repetitive, routine, simple tasks was within normal limits and that his ability to
comprehend complex tasks was within normal limits. Mr. Jeter also opined that Plaintiff was able
to get along appropriately with supervisors and the public. (PageID.425.) The ALJ found most of
the opinion persuasive, but found the portion of the opinion regarding Plaintiff’s ability to
comprehend complex tasks unpersuasive because the record showed that Plaintiff could not
understand, remember, and carry out complex tasks on a sustained basis due to his psychological
symptoms. (PageID.66.)
Finally, the ALJ found Dr. Ruben’s opinion unpersuasive as follows:
Dr. Ruben opined that the claimant is unable to meet competitive standards in the
ability to: complete a normal workday/week without interruptions from psychbased symptoms; perform at a consistent pace without an unreasonable number and
length of rest periods; and deal with stress of semiskilled and skilled work. He
opined that the claimant is seriously limited, but not precluded, in the ability to:
remember work-like procedure; maintain regular attendant [sic] and be punctual
within customary usually strict tolerances; sustain an ordinary routine without
special supervision; respond appropriately to changes in routine work setting; deal
with normal work stress; and set realistic goals and make plans independently of
others. Dr. Ruben opined that the claimant would be absent about three days per
month. (10F). Dr. Ruben’s opinion is not supported by or consistent with the record
as a whole. It is clear that the claimant has difficulty sustaining a work routine when
performing complex work, but I find that he could sustain simple, routine work
activity, as evidenced by medication controlling his ADHD and depression, his
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work doing legal document review, his dog training and breeding, and his work on
political campaign.
(PageID.66.)
Because Plaintiff filed his applications after March 27, 2017, the ALJ evaluated the medical
opinions pursuant to 20 C.F.R. §§ 404.1520c and 416.920c. These regulations provide that the
ALJ “will not defer or give any specific evidentiary weight, including controlling weight, to any
medical opinion(s) or prior administrative medical finding(s),” even an opinion from a treating
source. 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, an ALJ will articulate his or her
determination of the persuasiveness of a medical opinion “in a single analysis using the factors
listed in paragraphs (c)(1) through (c)(5) of this section, as appropriate.” Id. §§ 404.1520c(b)(1),
416.920c(b)(1). Those factors include: (1) supportability; (2) consistency; (3) relationship with the
claimant; (4) specialization; and (5) other factors which tend to support or contradict the opinion.
Id. §§ 404.1520c(1)–(5), 416.920c(1)–(5). The ALJ must explain his or her consideration of the
supportability and consistency factors, but absent circumstances not present here, is not required
to explain how the remaining factors were considered. Id. §§ 404.l520c(b)(2), (3), 416.920c(b)(2),
(3). The regulation defines “supportability” and “consistency as follows:
(1) Supportability. The more relevant the objective medical evidence and
supporting explanations presented by a medical source are to support his or her
medical opinion(s) or prior administrative medical finding(s), the more persuasive
the medical opinions or prior administrative medical finding(s) will be.
(2) Consistency. The more consistent a medical opinion(s) or prior administrative
medical finding(s) is with the evidence from other medical sources and nonmedical
sources in the claim, the more persuasive the medical opinion(s) or prior
administrative medical finding(s) will be.
Id. §§ 404.1520c(1)–(2), 416.920c(c)(1)–(2).
Plaintiff argues that the ALJ failed to properly evaluate Dr. Ruben’s opinion because she
failed to consider that it was consistent and supported by other probative evidence in the record.
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First, Plaintiff contends that the ALJ failed to recognize that Dr. Ruben’s opinion was consistent
with a consultative examination by Jonathan D. Shy, Ph.D., on January 31, 2013, when Plaintiff
was age 33. (PageID.340–52.) Plaintiff notes that Dr. Shy subjected Plaintiff to numerous
intellectual tests and concluded that, based on Plaintiff’s test scores, Plaintiff would very likely
have difficulty absorbing, processing, retaining, and retrieving visual material as well as his peers.
(ECF No. 14 at PageID.533 (citing PageID.350).) Plaintiff contends that the ALJ simply ignored
this evidence.
However, Dr. Shy rendered his opinion almost four years prior the commencement of the
relevant period. While Dr. Shy’s findings speak to Plaintiff’s abilities in January 2013, they were
not necessarily probative of his abilities during the relevant period. Since Dr. Shy’s examination,
Plaintiff had passed he Michigan Bar Examination, worked full-time as a document reviewer, and
volunteered for a judicial campaign. (PageID.83–85, 495.) Instead, the ALJ logically focused on
evidence pertaining to the relevant period. For example, during the November 29, 2017
consultative examination, Plaintiff reported that his medications were effective, he lived alone,
performed his own activities of daily living independently, made his own dental and medical
appointments, and helped with child care. (PageID.422.) Based on the testing during that
examination, the consultative examiner opined that Plaintiff could comprehend and carry out
simple directions and perform repetitive, routine, simple tasks. (PageID.66, 425.) Thus, the ALJ
did not err by failing to consider Dr. Shy’s findings in her consistency and supportability analysis.
Plaintiff also contends that the ALJ failed to explain why Dr. Ruben’s “copious notes”
from his numerous therapy sessions with Plaintiff over the years, showing that Plaintiff required
almost continuous support from his mother, girlfriend, and therapist simply to perform activities
of an average daily life, failed to support his opinion. (ECF No. 14 at PageID.533.) Plaintiff argues

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that, instead of considering the entire record, the ALJ selectively chose evidence of Plaintiff’s
achievements, while ignoring evidence that Plaintiff’s psychological symptoms precluded him
from sustaining full-time work. (Id. at PageID.534.) However, the ALJ’s decision shows that she
fully and accurately discussed Dr. Ruben’s treatment notes from the relevant period earlier in the
decision, which showed that, while Plaintiff struggled with motivation and organization, he made
excellent progress with treatment, including maintaining focus and attention to details, completing
tasks, sustaining daily structure, and seeking out and following up on new opportunities.
(PageID.492, 493, 497, 498, 500, 502.) The treatment notes also show that Dr. Ruben often
observed that Plaintiff showed no signs of depression or regressive behaviors. (PageID.492, 494,
497.) The ALJ also found that Plaintiff’s volunteer activity for a judicial campaign, his dog training
and breeding, and his performance of work as full-time legal document reviewer were inconsistent
with Dr. Ruben’s opinions. (PageID.66.)
As Plaintiff acknowledges, an ALJ is not required to discuss every piece of evidence in the
record. See Simons v. Barnhart, 114 F. App’x 727, 733 (6th Cir. 2004). “Although required to
develop the record fully and fairly, an ALJ is not required to discuss all the evidence submitted,
and an ALJ’s failure to cite specific evidence does not indicate that it was not considered.” Id.
Here, there is no indication that the ALJ “cherry-picked” the record in order to reach a
predetermined result. While Plaintiff points to other evidence in the record that could have
supported a different conclusion, it is not for this Court to second-guess the ALJ’s decisions when
supported by substantial evidence. See Reynolds v. Comm’r of Soc. Sec., 424 F. App’x 411, 414
(6th Cir. 2011) (a reviewing court “does not reconsider facts, re-weigh the evidence, resolve
conflicts in evidence, decide questions of credibility, or substitute its judgment for that of the
ALJ”). Moreover, an ALJ’s decision is not subject to reversal, even though there may be

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substantial evidence in the record that would have supported the opposite conclusion, if substantial
evidence also supports the conclusion that was reached by the ALJ. See Key v. Callahan, 109 F.3d
270, 273 (6th Cir. 1997).
Here, the ALJ’s decision shows that she fully considered the evidence of record and
properly evaluated Dr. Ruben’s opinion. Thus, Plaintiff’s claim of error is rejected.
Conclusion
For the reasons stated above, the Court concludes that the ALJ’s decision is supported by
substantial evidence. Accordingly, the Commissioner’s decision is affirmed.
An order consistent with this opinion will enter.
Dated: June 4, 2021

/s/ Sally J. Berens
SALLY J. BERENS
U.S. Magistrate Judge

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