Florian v. Commissioner of Social Security
OPINION; signed by Magistrate Judge Ray Kent (fhw)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
Case No. 1:21-cv-1
Hon. Ray Kent
COMMISSIONER OF SOCIAL
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review
of a final decision of the Commissioner of Social Security (Commissioner) which denied her claim
for supplement security income (SSI).
On December 27, 2018, plaintiff filed an application for SSI alleging a disability
onset date of November 12, 2018. PageID.56. At that time, plaintiff was still in high school.
Plaintiff identified her disabling conditions as generalized anxiety disorder, post-traumatic stress
disorder (PTSD), adjustment disorder, disruptive mood dysregulation disorder, and oppositional
defiant disorder. PageID.249. Plaintiff completed high school in May 2019 and has no past
relevant work. PageID.63, 65.1 An ALJ reviewed plaintiff’s claim de novo and entered a written
decision denying benefits on April 15, 2020. PageID.56-67. This decision, which was later
approved by the Appeals Council, has become the final decision of the Commissioner and is now
before the Court for review.
In this regard, plaintiff “testified she graduated from high school in May 2019 with a final GPA of approximately
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This Court’s review of the Commissioner’s decision is typically focused on
determining whether the Commissioner’s findings are supported by substantial evidence. 42
U.S.C. § 405(g); McKnight v. Sullivan, 927 F.2d 241 (6th Cir. 1990). “Substantial evidence is
more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Cutlip v. Secretary of Health
& Human Services, 25 F.3d 284, 286 (6th Cir. 1994). A determination of substantiality of the
evidence must be based upon the record taken as a whole. Young v. Secretary of Health & Human
Services, 925 F.2d 146 (6th Cir. 1990).
The scope of this review is limited to an examination of the record only. This Court
does not review the evidence de novo, make credibility determinations or weigh the evidence.
Brainard v. Secretary of Health & Human Services, 889 F.2d 679, 681 (6th Cir. 1989). The fact
that the record also contains evidence which would have supported a different conclusion does not
undermine the Commissioner’s decision so long as there is substantial support for that decision in
the record. Willbanks v. Secretary of Health & Human Services, 847 F.2d 301, 303 (6th Cir. 1988).
Even if the reviewing court would resolve the dispute differently, the Commissioner’s decision
must stand if it is supported by substantial evidence. Young, 925 F.2d at 147.
A claimant must prove that he suffers from a disability in order to be entitled to
benefits. A disability is established by showing that the claimant cannot engage in substantial
gainful activity by reason of any medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than twelve months. See 20 C.F.R. §416.905; Abbott v. Sullivan, 905 F.2d 918, 923
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(6th Cir. 1990). In applying the above standard, the Commissioner has developed a five-step
The Social Security Act requires the Secretary to follow a “five-step
sequential process” for claims of disability. First, plaintiff must demonstrate that
she is not currently engaged in “substantial gainful activity” at the time she seeks
disability benefits. Second, plaintiff must show that she suffers from a “severe
impairment” in order to warrant a finding of disability. A “severe impairment” is
one which “significantly limits . . . physical or mental ability to do basic work
activities.” Third, if plaintiff is not performing substantial gainful activity, has a
severe impairment that is expected to last for at least twelve months, and the
impairment meets a listed impairment, plaintiff is presumed to be disabled
regardless of age, education or work experience. Fourth, if the plaintiff's
impairment does not prevent her from doing her past relevant work, plaintiff is not
disabled. For the fifth and final step, even if the plaintiff’s impairment does prevent
her from doing her past relevant work, if other work exists in the national economy
that plaintiff can perform, plaintiff is not disabled.
Heston v. Commissioner of Social Security, 245 F.3d 528, 534 (6th Cir. 2001) (citations omitted).
The claimant bears the burden of proving the existence and severity of limitations
caused by her impairments and the fact that she is precluded from performing her past relevant
work through step four. Jones v. Commissioner of Social Security, 336 F.3d 469, 474 (6th Cir.
2003). However, at step five of the inquiry, “the burden shifts to the Commissioner to identify a
significant number of jobs in the economy that accommodate the claimant’s residual functional
capacity (determined at step four) and vocational profile.” Id. If it is determined that a claimant
is or is not disabled at any point in the evaluation process, further review is not necessary. Mullis
v. Bowen, 861 F.2d 991, 993 (6th Cir. 1988).
“The federal court’s standard of review for SSI cases mirrors the standard applied
in social security disability cases.” D’Angelo v. Commissioner of Social Security, 475 F. Supp. 2d
716, 719 (W.D. Mich. 2007). “The proper inquiry in an application for SSI benefits is whether the
plaintiff was disabled on or after her application date.” Casey v. Secretary of Health and Human
Services, 987 F.2d 1230, 1233 (6th Cir. 1993).
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Plaintiff’s claim failed at the fifth step of the evaluation. At the first step, the ALJ
found that plaintiff has not engaged in substantial gainful activity since her application date of
December 27, 2018. PageID.58. At the second step, the ALJ found that plaintiff had severe
impairments of: major depressive disorder; adjustment disorder; generalized anxiety disorder;
social anxiety disorder; oppositional defiant disorder; bipolar disorder; and PTSD. Id. At the third
step, the ALJ found that plaintiff did not have an impairment or combination of impairments that
met or equaled the requirements of the Listing of Impairments in 20 C.F.R. Pt. 404, Subpt. P, App.
1. PageID.59. In reaching this determination, the ALJ gave specific consideration to Listings
12.04, 12.06, 12.08, and 12.15. PageID.59-61.
The ALJ decided at the fourth step that:
After careful consideration of the entire record, I find that the claimant has
the residual functional capacity to perform a full range of work at all exertional
levels but with the following nonexertional limitations: she is limited to receiving,
comprehending, and executing simple routine tasks, making simple work related
decisions, and having no more than occasional workplace changes; she can have
occasional contact with public, coworkers, and supervisors; she can perform no
assembly line or hourly production quota work.
PageID.61. The ALJ also found that plaintiff has no past relevant work. PageID.65.
At the fifth step, the ALJ determined that plaintiff could perform a significant
number of unskilled jobs at all exertional levels. PageID.66. Specifically, the ALJ found that
plaintiff could perform the requirements of unskilled work in the national economy such as
industrial cleaner (medium exertional level, 1,200,000 jobs), stores laborer (medium exertional
level, 70,000 jobs), and laundry laborer (light exertional level, 150,000 jobs). Id. Accordingly,
the ALJ determined that plaintiff has not been under a disability, as defined in the Social Security
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Act, from December 27, 2018 (the date the application was filed) through April 15, 2020 (the date
of the decision). PageID.67.
Plaintiff raises a single error on appeal.
The Decision Lacks Substantial Evidence to Deny Benefits
When it Improperly Rejects the Opinions in a Treating Source
The gist of plaintiff’s claim is that the ALJ failed to properly evaluate the opinion
her treating psychologist, Leigh Wendtland, Ph.D. For claims filed on or after March 27, 2017,
the regulations provide that the Social Security Administration (SSA) “will not defer or give any
specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior
administrative medical finding(s).” 20 C.F.R. § 416.920c(a). In these claims, the SSA “will
articulate in our determination or decision how persuasive we find all of the medical opinions and
all of the prior administrative medical findings in [the claimant’s] record.”
20 C.F.R. §
416.920c(b). In addressing medical opinions and prior administrative medical findings, the ALJ
will consider the following factors: (1) supportability; (2) consistency; (3) relationship with the
claimant; (4) specialization; and (5) other factors. See 20 C.F.R. § 416.920c(c)(1)-(5).
The most important factors which the ALJ considers in evaluating medical opinions
are “supportability” and “consistency”:
Therefore, we will explain how we considered the supportability and consistency
factors for a medical source’s medical opinions or prior administrative medical
findings in your determination or decision. We may, but are not required to, explain
how we considered the factors in paragraphs (c)(3) through (c)(5) of this section,
as appropriate, when we articulate how we consider medical opinions and prior
administrative medical findings in your case record.
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20 C.F.R. §416.920c(b)(2).2 If the ALJ finds that two or more medical opinions “are both equally
well-supported and consistent with the record but are not exactly the same,” the ALJ must
articulate what factors were most persuasive in differentiating the opinions. 20 C.F.R. §
416.920c(b)(3) (internal citations omitted).
In addition, the new regulations recognize that “[b]ecause many claims have
voluminous case records containing many types of evidence from different sources, it is not
administratively feasible for us to articulate in each determination or decision how we considered
all of the factors for all of the medical opinions and prior administrative medical findings in your
case record.” 20 C.F.R. § 416.920c(b)(1). Thus, “when a medical source provides multiple
medical opinion(s) or prior administrative medical finding(s), we will articulate how we
considered the medical opinions or prior administrative medical findings from that medical source
together in a single analysis using the factors listed in paragraphs (c)(1) through (c)(5) of this
section, as appropriate.” Id. “We are not required to articulate how we considered each medical
opinion or prior administrative medical finding from one medical source individually. Id.
As one court observed, “[t]hese new regulations plainly are less demanding than
the former rules governing the evaluation of medical source opinions, especially those of treating
sources.” Hardy v. Commissioner of Social Security, 554 F. Supp. 3d. 900, 906 (E.D. Mich. 2021).
Nevertheless, the new regulations set forth a minimum level of articulation for a reviewing court.
The ALJ addressed Dr. Wendtland’s opinion as follows:
The regulations explain “supportability” as follows: “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.” 20 C.F.R. § 416.920c(c)(1). The regulations explain “consistency” as follows: “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.” 20 C.F.R. § 416.920c(c)(2). *
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The claimant’s psychologist, Leigh Wendtland, Ph.D., provided a statement
in March 2020 (Ex. 13F). Dr. Wendtland stated she had treated the claimant for
approximately 6 years and saw her on average every third week of the month. She
stated the claimant’s diagnoses impacted her ability to work. She stated the claimant
would often go to work consistently for approximately one month, and then she
would not go in due to not feeling well or missing her alarm. She stated the claimant
would then experience anxiety about returning to work and would just stop going.
She indicated the claimant also had issues getting along with coworkers and
supervisors, but Dr. Wendtland stated that more often than not, the claimant would
have opportunities to redeem herself but would choose to stop going to work. Dr.
Wendtland stated that conflict caused the claimant to experience an increase in
anxiety, and her depression caused her to have low productivity and motivation.
Dr. Wendtland also indicated the claimant became overwhelmed with caring for
day-to-day activities while living on her own. Dr. Wendtland indicated that things
would not change for the claimant without some significant differences in her
functioning. Dr. Wendtland stated the claimant had a consistent pattern of obtaining
different employments, going for a short time, and then stopped going. She stated
she did not see things changing for the claimant without some significant
supervision or somebody taking her to work or picking her up or being more hands
on. I find this opinion less persuasive. While I agree the record consistently showed
the claimant had difficulty maintaining employment, as noted above, all of the jobs
involved a high degree of social contact, and this limitation is accounted for in the
assessed residual functional capacity. In addition, Dr. Wendtland’s opinion is
largely neither supported nor consistent with the record. Instead, Dr. Wendtland
speculates on the claimant’s future abilities and limitations rather than giving
current functional limitations and then predicates her thoughts on unrelated issues
such as the claimant’s ability to obtain daily transportation. To the contrary, the
record consistently noted normal to mild mental status examinations. The record
showed the claimant did reasonably well in school with regular education classes
and was able to graduate with a 3.0 GPA. The record reflects she was able to
generally live on her own, attend school with few absences, and participate in
extracurricular activities (Ex. 14E; 4F; 5F pgs. 21-25; 10F pgs. 4, 6, 8, 11, 30, 32;
11F pgs. 31, 34, 37; Hearing Audio at 1:17:05, 1:30:25, 1:36:50, 1:40:00).
Accordingly, this opinion is less persuasive.
Plaintiff raises four objections to the ALJ’s evaluation of Dr. Wendtland’s opinion.
Plaintiff’s Brief (ECF No. 16, PageID.671). First, plaintiff contends that the ALJ’s evaluation
relies on insubstantial evidence. Specifically, the fact that plaintiff completed school, had few
absences from school, and participated in extracurricular activities at school does not conflict with
Dr. Wendtland’s opinion and is not sufficient to establish the ability to maintain full-time
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employment. The Court notes that when plaintiff applied for SSI, she was 18 years old, still in
high school, and had very little work history. Plaintiff points out that her work as a teenager
included part-time seasonal jobs at an ice cream store, and short stints (sometimes only weeks) at
various jobs where she was eventually fired, including a Subway restaurant, a McDonald’s
restaurant, a dry-cleaning company, a take-out restaurant, and a Tractor Supply Company store.
Id. at PageID.661-662. Given this history, the ALJ relied on the available evidence, which
included her ability to complete tasks while in high school. In addition, the ALJ considered
plaintiff’s limited work history in developing the residual functional capacity (RFC) stating that,
While I agree the claimant has significant mental impairments, her symptoms are
accommodated for in the residual functional capacity by limiting her abilities to
interact with others, comprehend and execute tasks, make decisions, deal with
workplace changes, and perform assembly line or hourly production quota work.
PageID.64. Accordingly, this claim of error is denied.
Second, plaintiff contends that the evaluation relies on inaccurate summaries of the
evidence. Specifically, plaintiff contends that while living on her own, plaintiff’s landlords
“experienced her messiness, poor hygiene and irresponsibility.” Id. After high school, plaintiff
rented a room from a family (PageID.597) but was later evicted. A transcript of text messages
from plaintiff’s landlord for a two-month period from December 31, 2019, through January 27,
2020, indicate that plaintiff had poor hygiene, left moldy food in the cupboards, had no sheets on
the bed, left candy wrappers on the floor, and had “food, candy and soda stored all around the chair
in her living room with a blanket covering it.” PageID.328. Plaintiff contends that this evidence
is not consistent with the ALJ’s conclusion that plaintiff “was able to generally live on her own.”
PageID.65. The Court notes that the landlord’s evidence reflects only a two-month period
(December 2019 through January 2020). The ALJ considered all of the evidence in the record
since plaintiff filed her SSI claim to reach this determination. See PageID.62 (“Records noted she
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was generally able to live on her own, although she still received parental help concerning activities
such as meal planning and bills (Ex. 2F; 3F; 5F).”). “The findings of the Commissioner are not
subject to reversal merely because there exists in the record substantial evidence to support a
different conclusion.” Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). “This is so because
there is a ‘zone of choice’ within which the Commissioner can act, without the fear of court
interference.” Id. at 773 (6th Cir. 2001). Accordingly, this claim of error is denied.
Third, plaintiff contends that the evaluation ignores almost all of the medical
evidence. Specifically, the decision states that, “the record consistently noted normal to mild
mental status examinations” (PageID.65). Plaintiff’s Brief at PageID.671. Plaintiff points out that
while the ALJ conclude that “[s]he was consistently noted to be oriented with appropriate affect
and intact functional status” (PageID.62), the ALJ cites no records for this conclusion.
PageID.671. The ALJ does not identify plaintiff’s treating psychiatrist, Tariq Faridi, M.D.
However, the ALJ refers to the doctor’s treatment, “15-minute psychiatry sessions every one to
two months,” and cites the relevant medical records (Exh. 5F). See PageID.62-65, 451-476 (Ex.
5F). The ALJ found that,
On occasion, she was noted to be anxious, guarded, and distractible with dysphoric
mood and labile affect. However, she was consistently noted to be oriented with
appropriate dress and appearance, fair insight and judgment, appropriate thought
content, appropriate behavior, and normal perception and flow of thought.
Plaintiff also contends that while the case involves exclusively severe mental
impairments, the ALJ’s decision “is remarkably sparse on its articulation of the mental health
Plaintiff’s Brief at PageID.672.
The Court does not agree with that
observation. As discussed, plaintiff alleged a disability onset date of November 12, 2018, while
she was still in high school. The administrative hearing was held on April 1, 2020, less than one
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year after plaintiff graduated from high school. PageID.73-108. The ALJ addressed the treatment
records for the relevant time period, as well as the opinions of non-examining psychological
consultant Robert Gerl, Ph.D. (March 4, 2019) and plaintiff’s treating psychologist Dr. Wendtland
(March 30, 2020). PageID.62-65, 118-122, 648-652.3 Accordingly, this claim of error is denied.
Fourth, plaintiff contends that the evaluation misstates Dr. Wendtland’s opinions.
For example, plaintiff contends that the ALJ incorrectly referred to the doctor’s opinions as
Dr. Wendtland’s opinion is largely neither supported nor consistent with the record.
Instead, Dr. Wendtland speculates on the claimant’s future abilities and limitations
rather than giving current functional limitations and then predicates her thoughts
on unrelated issues such as the claimant’s ability to obtain daily transportation.
PageID.65. Plaintiff explains that,
Rather than “speculate” on the future, Dr. Wendtland based her opinion on the
established pattern demonstrated by Ms. Florian, where she misses a day, or a
couple days, and soon is out of the workplace. (PageID.650-651). That was the
reason that Dr. Wendtland expected Ms. Florian to frequently miss work.
Plaintiff’s Brief at PageID.674. Plaintiff also contends that the ALJ erred because the doctor never
commented on daily transportation. Id.
It appears to the Court that Dr. Wendtland did engage in some speculation and did
comment on transportation to and from work as one reason why plaintiff would not be able to be
employed in the future. When asked by plaintiff’s attorney, “As we look forward, would you
anticipate any change in her ability to maintain employment in the near future?”, the doctor
In the near future without some significant differences in her functioning,
no. I’m not a fortune teller, so I can’t tell you if she will for sure change or if this
pattern will be maintained throughout her life. Although I think you can look at
history, she has had a pretty consistent pattern with obtaining different
The Court notes that a scrivener’s error appears in the ALJ’s decision, which refers to Dr. Gerl’s opinion (Exh. 1A)
as “Exh. X”. PageID.64.
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employments, going for a short time and then stopping going. Without some
significant supervision or somebody kind of taking her to work or picking her up
or being more hands on, I don’t know why that would change.
PageID.651. Given this record, the Court concludes that the ALJ did not misstate Dr. Wendtland’s
opinions. Accordingly, this claim of error is denied.
For these reasons, the Commissioner’s decision will be AFFIRMED. A judgment
consistent with this opinion will be issued forthwith.
Dated: September 15, 2022
/s/ Ray Kent
United States Magistrate Judge
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