White v. Commissioner of Social Security

Filing 24

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

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL ANTHONY WHITE,
Plaintiff,
v.

Hon. Sally J. Berens

COMMISSIONER OF SOCIAL SECURITY,

Case No. 1:20-cv-334

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 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 vacate the Commissioner’s decision and
remand the matter for further factual findings pursuant to sentence four of 42 U.S.C. § 405(g).
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 &
Human Servs., 847 F.2d 301, 303 (6th Cir. 1988). The scope of judicial review in a social

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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 & 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 his 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 & 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 Health & 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 July 19, 2016, alleging that he
became disabled as of June 15, 2016, due to depression and anxiety. (PageID.161, 173–74.)
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Plaintiff was age 26 at the time of his alleged onset date. (PageID.161.) Plaintiff graduated from
high school and had previous employment as a cashier. (PageID.341.) After Plaintiff’s
applications were denied, he requested a hearing before an Administrative Law Judge (ALJ).
ALJ Stephanie Katich conducted a video hearing on November 1, 2018, and received
testimony from Plaintiff and Ryan Wilmer, an independent vocational expert. (PageID.79–109.)
The ALJ held a supplemental hearing on April 2, 2019, and received testimony from Plaintiff,
Plaintiff’s mother, and Julie Dyer, an impartial vocational expert. (PageID.111–47.) On April 30,
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.56–67.) The Appeals Council denied
Plaintiff’s request for review on February 21, 2020, making ALJ Katich’s April 30, 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 April 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 his past relevant work, a finding of “not
disabled” must be made (20 C.F.R. §§ 404.1520(e), 416.920(e));
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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 his residual functional capacity (RFC). 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 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 of June 15, 2016, the ALJ found that Plaintiff suffered from severe
impairments of depressive disorder and anxiety disorder. (PageID.58.)
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 considered Listings 12.04 (depressive, bipolar, and related disorders) and 12.06
(anxiety and obsessive-compulsive disorders). (PageID.59.) In connection with these listings, 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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ALJ considered the four broad areas of mental functioning set out in the “paragraph B” criteria,
20 C.F.R. Pt. 404, Subpt. P, App 1. Under paragraph B, Plaintiff was required to prove one
extreme limitation or two marked limitations in the following areas:
1. Understanding, remembering, or applying information;
2. Interacting with others;
3. Concentrating, persisting, or maintaining pace;
4. Adapting or managing oneself.
20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 12.04(B), 12.06(B), 12.08(B). A claimant is mildly
limited if his ability to function in an area “independently, appropriately, effectively, and on a
sustained basis is slightly limited.” Id. § 12.00.F.2. A claimant is moderately limited if such
ability is “fair,” markedly limited if such ability is “seriously limited,” and extremely limited if
he has no ability to function in a given area. Id. The ALJ found that Plaintiff was moderately
limited in all areas. (PageID.59–60.)
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 with the following mental limitations:
The claimant can understand, remember and carry out simple instructions and
tasks. He can make judgments on simple work related decisions and he can
respond appropriately to occasional and superficial interactions with coworkers
and supervisors. He should avoid work activity requiring interactions with the
general public. He can respond appropriately to usual work situations, and he can
deal with a routine work setting with very few, if any, changes in terms of work
setting and processes.
(PageID.60.)
At step four, the ALJ determined that Plaintiff did not retain the RFC to perform any of
his past relevant work. (PageID.65–66.) At step five, however, based on testimony from the
vocational expert, the ALJ found that Plaintiff could perform the occupations of laundry worker,
hand packager, and housekeeper, one million of which existed in the national economy that an
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individual of Plaintiff’s age, education, work experience, and RFC could perform. (PageID.66–
67.) 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 a single issue in his appeal. He contends that the ALJ failed to properly
weigh the opinion of Plaintiff’s treating physician, Louis Joseph, M.D. (ECF No. 12 at
PageID.2647.)
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 his
medical condition.2 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 “wellsupported by medically acceptable clinical and laboratory diagnostic techniques,” and (2) the
opinion “is not inconsistent with the other substantial evidence in [the] case record.” Gayheart v.
Comm’r of Soc. Sec., 710 F.3d 365, 375-76 (6th Cir. 2013) (quoting 20 C.F.R. § 404.1527). That
deference is appropriate, however, only where the opinion “is based upon sufficient medical
data.” Miller v. Sec’y of Health & Human Servs., 1991 WL 229979, at *2 (6th Cir. Nov. 7, 1991)
(citation omitted). The ALJ may reject the opinion of a treating physician where it is unsupported
by the medical record, merely states a conclusion, or is contradicted by substantial medical
evidence. See Cohen, 964 F.2d at 528; Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284,
286-87 (6th Cir. 1994).

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The treating physician rule applies in this case as Plaintiff filed his claim before March 27,
2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 584401, 2017 WL 168819 (Jan. 18, 2017).
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If an ALJ accords less than controlling weight to a treating source’s opinion, the ALJ
must give “good reasons” for doing so. Gayheart, 710 F.3d at 376. Those reasons must be
“supported 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.” Id. This requirement “ensures that the ALJ applies the
treating physician rule and permits meaningful review of the ALJ’s application of the rule.” Id.
(citation omitted). Simply stating that the physician’s opinions “are not well-supported by any
objective findings and are inconsistent with other credible evidence” is, without more, too
“ambiguous” to permit meaningful review of the ALJ’s assessment. Id. at 376-77.
If the ALJ affords less than controlling weight to a treating physician’s opinion, the ALJ
must still determine the weight it should be afforded. 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 explicitly to 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 F. App’x 448, 450 (5th Cir. 2007).
The ALJ addressed Dr. Joseph’s October 11, 2018 opinion as follows:
I have considered and given partial weight to the statement of Louis Joseph M.D.,
as his opinion is somewhat consistent with the medical evidence of record. Great
weight is given to Dr. Joseph's opinion that the claimant has unlimited or very
good ability to remember work-like procedures, understand, remember and carry
out simple instructions and make simple work-related decisions. (Exhibit 12F/3).
However, little weight is given to Dr. Joseph’s opinion that the claimant would be
unable to complete a normal workday and week without interruptions from his
mental health symptoms and would be absent more than four days per month
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from work, as these limitations are not consistent with the medical evidence of
record or not supported by Dr. Joseph’s own treatment notes of the claimant.
(Exhibit 12F). Additionally, Dr. Joseph does not provide reasoning for this
limitation, especially in light the rest of the opinions in his statement, which do
not show that the claimant has any other significant limitations. (Exhibit 12F). Dr.
Joseph’s treatment notes from June 2018, characterized the claimant’s depression
as “intermittent.” (Exhibit 11F/29). The claimant reported that his depression was
under control and that his passive suicidal ideation was less intense. (Exhibit
11F/32). The notes further states [sic] that the claimant still had some problems
with focusing, but none were evident on the date of treatment. (Exhibit 11F/32).
Treatment notes in August 2018 states the claimant “has not experienced
significant suicidal ideation with intent in several months where he was screened
and hospitalized.” (Exhibit 11F/14). The claimant reported that his medications
“help “70%” with respect to diminishing his symptoms of depression and
anxiety.” He reported he was happy with his current medication response.
(Exhibit 11F/1).
(PageID.64–65.)
Plaintiff contends that the ALJ failed to properly weigh the portion of Dr. Joseph’s
opinion that he would be unable to complete a normal workday and week without interruptions
from his mental health symptoms and would be absent from work more than four days per
month. Plaintiff contends that, although the ALJ cited Dr. Joseph’s treatment records indicating
that Plaintiff’s depression was “under control,” that his suicidal ideation was “less intense,” and
that Plaintiff had not experienced any significant suicide ideation in several months, the ALJ
disregarded portions of Dr. Joseph’s treatment notes, other medical records, and non-medical
evidence tending to support Dr. Joseph’s opinions. In particular, Plaintiff notes that he
consistently endorsed suicidal thoughts and was hospitalized at least twice during the relevant
period for suicide ideation; had a history of inability to engage in sustained work activity—
including a failed stint of basic training in the United States Air Force, which he left after five
weeks due to his severe mental condition; required reminders from his mother to complete tasks
around the house and to attend to his personal and medical care; and often lost his driving
privileges due to a lack of motivation to complete his chores at home. (ECF No. 19 at
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PageID.1031–32.) Plaintiff contends that the ALJ’s reliance on selectively-chosen, halfsentences and phrases from the record presents a misleading picture of his mental condition. (Id.
at PageID.1032–33.)
Defendant responds that, in formulating Plaintiff’s RFC, the ALJ properly considered the
evidence as a whole, including Plaintiff’s subjective symptoms, the objective medical evidence,
Plaintiff’s daily activities, and improvement with treatment and appropriately accounted for all
of Plaintiff’s mental limitation by including restrictions in the RFC based on all of the evidence
in the record. (ECF No. 22 at PageID.1047–56.) Defendant notes that the ALJ in fact discussed
most of the evidence that Plaintiff claims the ALJ ignored to support her “skewed depiction” of
Plaintiff’s treatment records. (Id. at PageID.1046, 1056–57.) Finally, Defendant contends that the
ALJ properly weighed Dr. Joseph’s opinion under the treating physician rule and provided “good
reasons” for according little weight to the portion of his opinion regarding Plaintiff’s inability to
meet competitive standards in his ability to complete a normal workday and week and his likely
absences from work more than four days per month. (Id. at PageID.1058–60.)
As noted, the sole issue is whether the ALJ properly weighed the rejected portion of Dr.
Joseph’s opinion. There is no separate issue as to whether substantial evidence supports the
ALJ’s articulated RFC. In assigning little weight to Dr. Joseph’s opinion, the ALJ noted that Dr.
Joseph did not provide any reasoning for this limitation. This reason, alone, normally would
justify the ALJ’s rejection of Dr. Joseph’s opinion and constitute a good reason. The Sixth
Circuit has noted that an ALJ “properly [gives] a check-box form little weight,” absent an
“explanation for the restrictions entered on the form” or citation to “supporting objective medical
evidence.” Ellars v. Comm’r of Soc. Sec., 647 F. App’x 563, 567 (6th Cir. 2016); see also
Hernandez v. Comm’r of Soc. Sec., 644 F. App’x 468, 474 (6th Cir. 2016) (“We have previously

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declined to give significant weight to rudimentary indications that lack an accompanying
explanation.”). Here, however, Dr. Joseph provided an explanation for his opinion, stating,
“Michael has days when his depression is more intense, leading him to spend excessive time
isolating and not leaving the house. His stress tolerance during these episodes would be
diminished.” (PageID.763.) The ALJ did not address this explanation. Would this have carried
the day in the ALJ’s view? Absent a remand there is no way to know.
The ALJ also said that Dr. Joseph’s opinion was inconsistent with the medical evidence
of record or not supported by Dr. Joseph’s own treatment notes. The ALJ cited treatment notes
from June 28, 2018, August 8, 2018, and September 2018, indicating that Plaintiff’s depression
was “intermittent,” that Plaintiff reported that his depression was “under control” and his passive
suicide ideation was “less intense,” that Plaintiff had “not experienced significant suicidal
ideation” since his March 2018 hospitalization, that his medications diminished his symptoms of
depression and anxiety by “70%,” and he was happy with his current medication response.
(PageID.65, 693, 706, 721, 724.) Plaintiff argues that this cherry-picked evidence fails to
accurately portray the extent of his mental health symptoms.
Arguments that the ALJ “cherry-picked” the record to diminish a claimant’s symptoms
are frequently made but are seldom successful because “the same process can be described more
neutrally as weighing the evidence.” White v. Comm’r of Soc. Sec., 572 F.3d 272, 284 (6th Cir.
2009). Still, an ALJ may not “cherry-pick” isolated medical records to reject a treating
physician’s opinion. See Minor v. Comm’r of Soc. Sec., 513 F. App’x 417, 435 (6th Cir. 2013)
(noting that “the ALJ cherry-picked select portions of the medical record to discredit Minor’s
complaints of pain”) (citing Germany–Johnson v. Comm’r of Soc. Sec., 313 F. App’x 771, 777
(6th Cir. 2008) (per curiam)); Goble v. Astrue 385 F. App’x 588, 593 (7th Cir. 2010) (“An ALJ

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is obligated to consider all relevant medical evidence and may not cherry-pick facts to support a
finding of non-disability while ignoring evidence that points to a disability finding.”). The Court
finds that the ALJ’s analysis presents the latter circumstance.
Despite the evidence the ALJ cited that Plaintiff’s symptoms of depression were
“intermittent,” that Plaintiff reported improvement with treatment and his depression was “under
control,” and that his passive suicide ideation was “less intense,” Plaintiff’s treatment records
show that he continued to suffer from depression and anxiety in late 2018 and early 2019,
(PageID.969 (“still ongoing intermittent depression, anhedonia, poor motivation, poor focus”),
974 (reporting that he had ”been experiencing some increase in depression and lower
motivation), 996 (the “depression is still there,” but “[n]ot everyday,” and “anxiety ‘still
there’”)), and continued to experience passive suicide ideation at times (PageID.982, 996). As
these records show, Dr. Joseph’s characterization of Plaintiff’s depressive symptoms as
“intermittent” is consistent with his explanation that Plaintiff’s symptoms are more intense on
some days than others. In other words, while Plaintiff’s treatment records show that he had
experienced some improvement in his symptoms of depression and anxiety, a fair reading also
shows that his mental impairments were ongoing. See Boulis-Gasche v. Comm’r of Soc. Sec.,
451 F. App’x 488, 494 (6th Cir. 2011) (noting the ALJ’s failure to consider evidence indicating
that the claimant continued to suffer from mental illness notwithstanding the doctor’s
observation that the claimant’s “mood may be some better”). Other evidence also aligns with Dr.
Joseph’s opinion. For example, use of the family car was key to Plaintiff addressing his social
anxiety by enabling him to get out more and engage with others, yet he often lost his driving
privileges due to lack of motivation to complete his chores at home. (PageID.808, 964, 977,
980.) In this regard, the rejected portion of Dr. Joseph’s opinion is not necessarily inconsistent

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with the portion to which the ALJ assigned great weight. That is, while Plaintiff may have very
good ability to remember, understand, and carry out simple instructions and make work-related
decisions, low or reduced motivation resulting from his depression and anxiety may still be
work-preclusive if he is unable to meet competitive standards for attendance or if his mental
health symptoms prevent him from completing a normal workday.
Defendant contends that, because the ALJ discussed much of the evidence elsewhere in
her decision, she did not ignore it. But simply mentioning evidence is insufficient to comply with
the treating physician rule and good reasons requirement, as the ALJ must provide some
explanation as to why cited evidence does not support the doctor’s opinion. Cf. Smalley v.
Comm’r of Soc. Sec., No. 20-1865, 2021 WL 4026783, at *5 (6th Cir. Sept. 3, 2021) (noting that
“the ALJ made no effort to explain why the cherry-picked factors he found relevant undermined
Dr. Sagan-Yewah's conclusion that Smalley would need frequent breaks or would be unable to
sit or stand continuously for more than one to two hours”). It is incumbent on the ALJ to explain
why evidence that, on its face, appears to support Dr. Joseph’s opinion, is inconsistent or not
supportive of that opinion. Accordingly, the Court concludes that remand is appropriate based on
the ALJ’s failure to articulate good reasons for rejecting Dr. Joseph’s opinion. See Hensley v.
Astrue, 573 F.3d 263, 267 (6th Cir. 2009) (“We have stated that we do not hesitate to remand
when the Commissioner has not provided ‘good reasons’ for the weight given to a treating
physician’s opinion and we will continue remanding when we encounter opinions from ALJs
that do not comprehensively set forth the reasons for the weight assigned to a treating
physician’s opinion.”) (internal quotation marks and brackets omitted).

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Conclusion
For the reasons stated above, the Court will vacate and remand the Commissioner’s
decision for further evaluation of Dr. Joseph’s opinion under the treating physician rule as set
forth herein.
An order consistent with this opinion will enter.
Dated: September 8, 2021

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

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