Lakenen v. Commissioner of Social Security
OPINION; signed by Magistrate Judge Timothy P. Greeley (Magistrate Judge Timothy P. Greeley, pjc)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
LISA KAY LAKENEN,
Case No. 2:14-cv-155
HON. TIMOTHY P. GREELEY
COMMISSIONER OF SOCIAL SECURITY,
In January 2011, plaintiff Lisa Kay Lakenen filed an application for disability and
disability insurance benefits. See Transcript of Administrative Hearing at pages 224-230 (hereinafter
Tr. at ___). Plaintiff alleges that she became disabled on November 4, 2009, due to back pain, left
shoulder impairment, COPPED, migraines and psychological impairment. Plaintiff’s application was
denied initially on May 26, 2011, and plaintiff requested an administrative hearing before an
Administrative Law Judge (ALL). Tr. at 171-72 . ALL Brent C. Be dwell held a hearing on January
11, 2013. Tr. at 68. Plaintiff and vocational expert Leslie Goldsmith testified at the hearing. On
February 15, 2013, ALL Be dwell issued a decision denying plaintiff’s request for disability benefits.
Tr. at 52-63. Plaintiff filed a Request for Review of Hearing Decision/Order on April 3, 2013. Tr.
at 48. On June 3, 2014, the Appeals Council denied plaintiff’s request for a review of the ALL’s
decision, making the ALL’s decision the final decision of the Commissioner. Tr. at 1. Plaintiff then
filed this action.1
At the hearing plaintiff testified that she has constant pain in her shoulder between her
shoulder blades and in her neck. Tr. at 77. Plaintiff takes Oxycontin twice a day and Percocet four
times a day. Id. Plaintiff testified that she can sit for about one half hour before she has to get up and
move. Tr. at 79. Plaintiff can stand for about fifteen minutes before having to sit down. Tr. at 80.
She can walk about one half block and lift a gallon of milk. Id. Plaintiff indicates that she
experiences depression, which is probably from not being able to work. Id. She does not take
medication for depression because she cannot tolerate antidepressants. Id. Plaintiff believes that
without the pain she would not have depression. Tr. at 86. Plaintiff has made attempts to exercise,
but each time she tries to exercise she ends up in bed for a few days because activity causes muscle
pain. Tr. at 81.
Plaintiff left her medical clerk job because she was only able to work for about four
hours a day before the pain became intolerable. Tr. at 82. She also experiences migraines at least
once a month. Tr. at 83. She has had a migraine that lasted one month. Tr. at 84. However, her
average migraine lasts three days. Id. She experiences rotator cuff pain than radiates down her arm
to her wrist and sometimes her fingers. Tr. at 85. She has been diagnosed with COPD and uses an
inhaler. The COPD causes tightness in her chest and back once or twice per month. Id. Plaintiff can
climb twelve stairs but has to sit down for five minutes to catch her breath. Tr. at 86.
Plaintiff describes the pain in her back near her bra strap as a consistent nine, the pain
in her shoulder blade area as a six, the pain in her neck as a six, and the pain in her shoulder as a four.
Both parties consented to proceed before a Magistrate Judge on October 30, 2014.
Tr. at 87-88. Exercise and cold make the pain worse. Tr. at 88. She has difficulty pulling, such as
pulling charts in and out of racks. Id. Movement between the shoulder blades aggravates the pain.
Id. She sleeps about six hours a day at night, and lays down about four times during the day and
sleeps between 20 minutes and two hours. Tr. at 89. Plaintiff indicates that she does less household
work and her husband is now doing more household chores. Tr. at 90.
The vocational expert testified that for a hypothetical individual of plaintiff’s age,
education and work experience, limited to unskilled light work who could sit or stand every fifteen
minutes, could not climb ladders, ropes or scaffolds, and is limited to occasionally climbing ramps,
climbing stairs, stooping, crouching, kneeling and crawling, who must avoid exposure to extreme
cold, unprotected heights, hazards, and moving machinery, and who may be off task for ten percent
of the day in addition to regularly scheduled breaks, there exists about 20,000 office clerks jobs,
10,000 food preparation jobs including 3,000 to 4,000 sit and stand light duty level positions, and
5,000 light and sedentary level security jobs in the Michigan economy. Tr. at 97. If the hypothetical
individual was limited to low stress sedentary work in addition to the above limitations, the vocational
expert testified that the number of positions available in the economy would be the same for office
clerk jobs, for food service positions there would be about 5,000 jobs and for security positions there
would be about 2,500 jobs. Tr. at 98. There exist no jobs in the economy for the hypothetical
individual who needs to be off task more than 10% of the time. Id.
Plaintiff was seen by Dr. Katherine Lao, M.D., on January 14, 2009. Tr. at 302. Dr.
Lao indicated that plaintiff suffered with disruptive thoracic spinal pain radiating to the left. Id. Dr.
Vijay Singh, M.D., noted that plaintiff had multilevel disc displacement. Tr. at 305. Plaintiff
received some relief from an epidural injection. Tr. at 304-305. On November 11, 2009, Dr. Lao
noted that the epidural injection made plaintiff’s pain worse. Tr. at 308. She further noted that while
plaintiff was getting some pain relief from her prescription pain medications, she has received more
medications to control her pain. Dr. Lao noted that there are concerns about developing an
intolerance to pain mediation and that pain medication was not the solution to pain management. Id.
Dr. Lao opined that plaintiff needed to work on her coping skills and activity modifications. Id. On
December 2009, an MRI revealed stable mild cervical spondylosis. Tr. at 310. The MRI impression
showed right paracentrial disc protrusions with mild cord flattening at T5-T6, T7-T8, and T8-T9. Tr.
On February 22, 2011, Dr. Maria Carolina LD Espejo, M.D., reported that plaintiff
complained of chronic neck pain and left shoulder and back pain. Tr. at 334. Plaintiff reported that
physical therapy made her symptoms worse. Tr. at 335. Plaintiff felt that her symptoms had
progressed since 2009 when she had her last MRI. Tr. at 337. Plaintiff received an MRI which
revealed a disc protrusion at C5-6 with spur formation that was probably impinging her left C6. She
also had a C-7 radiculopathy. Tr. at 333. Dr. Espejo discussed pain management with plaintiff. Id.
Plaintiff received an MRI of her spine in April 2011. Tr. at 372). The MRI revealed unchanged
prominent disc herniations at T5-6 through T8-9, as well as T2 signal loss from some of the other
discs. The MRI revealed unchanged disc degeneration. Id.
On April 12, 2011, psychologists Barbara Halazon, Ph.D, LLP, and Margaret K.
Cappone, Ph.D, issued a report at the request of the Disability Determination Service. Tr. at 377-383.
The report diagnosed plaintiff with adjustment disorder with mixed anxiety and depressed mood, low
average IQ, chronic back and neck, chronic headaches, chronic stomachaches, not working, and
overall decreased functional ability. Tr. at 383. Plaintiff was assessed with a GAF of 50 and guarded
prognosis. Id. Dr. Richard C. Gause, M.D., examined plaintiff at the request of the Disability
Determination Service. Tr. at 387-390. Dr. Gause determined that plaintiff has degenerative disc
disease, and a left rotator cuff injury. Tr. at 389.
Dr. Stuart K. Johnson wrote a “To whom it may concern” letter on April 19, 2011,
indicating that he believed that it is difficult for plaintiff to be functional from a disability standpoint.
Tr. at 407. Licensed Psychologist Ralph L. Olson, Ph.D, BCBA-D examined plaintiff and found that
she had a mood disorder due to chronic back pain with depressive features. Tr. at 416. Dr. Olson
gave plaintiff a GAF of 40. Id.
Dr. Johnson completed a physical residual functional capacity questionnaire for
plaintiff on April 3, 2012. Tr. at 429-433.
Dr. Johnson based his answers on his subjective
discussions with plaintiff and indicated that a functional assessment would be required for objective
data. Tr. at 432. Dr. Johnson reported that plaintiff suffered with chronic back, thoracic, and neck
pain that has been resistant to medical procedures and medications. Plaintiff also suffers with
depression and anxiety, and is incapable of performing even low stress jobs. Tr. at 430. Dr. Johnson
noted that plaintiff could sit and stand for less than two hours per day. Tr. at 431. Plaintiff reported
that she could not do sustained periods of work for eight hours per day. Id. Plaintiff reported that she
needs to lay down six or more times per day for 10-30 minutes. Id. Plaintiff reported that she needs
unscheduled breaks during an eight hour day. Id. Dr. Johnson could not assess plaintiff’s ability to
lift and carry weight, but indicated that she could never lift fifty pounds. Id. Plaintiff could rarely
twist, stoop, crouch and climb stairs. Tr. at 432. Plaintiff could not climb ladders. Id.
To establish an entitlement to disability benefits, plaintiff is required to show that she
is unable to engage in any substantial gainful activity due to a “medically determinable physical or
mental impairment that can be expected . . . to last for a continuous period of not less than 12
months.” See 42 U.S.C. § 1382c(a)(3)(A). See also Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir.
1990). If plaintiff’s impairments prevent her from performing her previous work, it must also be
established that there is not work existing in significant numbers in the economy that she can perform.
See 42 U.S.C. § 1382c(a)(3)(B). Plaintiff bears the burden of establishing her entitlement to disability
benefits. In determining whether plaintiff can engage in substantial gainful activity, the social
security regulations set forth a five step sequential evaluation, which was followed by the ALL in this
case. See 20 CFR § 416.920. See also Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003). Following
that sequential evaluation, if the Commissioner finds that plaintiff is not disabled at any step, then the
Commissioner does not need to analyze further.
In the instant case, the ALL determined that plaintiff has severe impairments of
degenerative disc disease, headaches, and adjustment disorder with mixed anxiety and depressed
mood. The ALL also found that plaintiff has a history of left rotator cuff injury, but that the medical
records did not show that the injury could be defined as a severe impairment. The ALL determined
that plaintiff was capable of performing a range of unskilled sedentary work that would allow her to
have a sit/stand option every 15 minutes in a low stress job that provides her to be off task 10 percent
of the day, with avoidance of exposure to extreme cold, heights, hazards, and moving machinery. In
addition the position cannot require climbing ladders, ropes and scaffolds, and may occasionally
require stooping, crouching, kneeling, crawling, and climbing ramps and stairs. Plaintiff argues that
the ALL erred by not properly considering the opinion of plaintiff’s treatment physician, by not
considering plaintiff’s shoulder impairment, by using boilerplate language, and by failing to follow
the vocational expert’s answers to hypothetical questions.
The decision of the Commissioner shall be conclusive if it is supported by substantial
evidence. See Mullen v. Bowen, 800 F.2d 535, 538 (6th Cir. 1986). Substantial evidence has been
defined as such relevant evidence as a reasonable person might find adequate to support a conclusion.
See Richardson v. Perales, 402 U.S. 389, 401 (1971). The Sixth Circuit has indicated that “the
findings of the Commissioner are not subject to reversal merely because there exists in the record
substantial evidence to support a different conclusion . . . this is so because there is a ‘zone of choice’
within which the Commissioner can act, without fear of court interference.” Buxton v. Halter, 246
F.3d 762, 772 (6th Cir. 2001). Accordingly, the ALL’s decision is not to be “overturned if substantial
evidence, or even a preponderance of the evidence, supports the claimant’s position, so long as
substantial evidence also supports the conclusion reached by the ALL.” See Jones v. Commissioner
of Social Security, 336 F.3d 469, 477 (6th Cir. 2003). If this Court concludes that substantial
evidence does not exist to support the Commissioner’s decision, the Court can reverse the decision
and immediately award benefits, but only if all essential factual issues have been resolved and the
record adequately establishes a claimant’s entitlement to benefits. See Newkirk v. Shalala, 25 F.3d
316, 318 (6th Cir. 1994); Faucher v. Secretary of Health and Human Services, 17 F.3d 171, 176 (6th
The opinions of plaintiff’s treating physicians are entitled to some deference and
cannot be ignored by the Commissioner. The Sixth Circuit has explained that the treating source
opinions are entitled to great weight if the are supported by sufficient clinical findings and are
consistent with the evidence of record. See Blakely v. Commissioner of Social Security, 581 F.3d 399,
406 (6th Cir. 2009) ; Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir. 1993). The Commissioner is not
bound by the treating physicians’ opinions and such opinions are entitled to great weight only if they
are supported by sufficient clinical findings and are consistent with the evidence. The treating
physicians’ opinions are not entitled to a presumption of correctness when the record contains
contrary evidence. If there is well supported contradicting evidence, the treating physicians’ opinions
are not entitled to controlling weight. See Rogers v. Commissioner of Social Security, 486 F.3d 234,
242 (6th Cir. 2007). Where the treating physicians’ opinions are well supported by medically
acceptable clinical and laboratory diagnostic tests, and are not inconsistent with other substantial
evidence in the record, then the opinions are accorded controlling weight. Wilson v. Commissioner
of Social Security, 378 F.3d 541 (6th Cir. 2007).
Plaintiff argues that the ALL failed to accept her treating physician’s assessment
provided in the Residual Functional Capacity form.
The ALL did find that since Dr. Johnson
indicated that the answers were primarily based upon plaintiff’s subjective complaints, that the RFC
would be given “partial weight” in the disability decision. Ultimately, the ALL, found that while the
medical evidence supported the alleged symptoms, the plaintiff’s claim regarding “the intensity,
persistence and limiting effects of these symptoms” were not credible. Tr. at 58. The ALL noted that
when Dr. Johnson continued to treat plaintiff after submitting the RFC form, he noted that plaintiff’s
condition was stable. Tr. at 60. The ALL carefully considered the medical evidence and carefully
explained his decision in denying plaintiff’s claim for disability benefits.
The ALL explained:
The undersigned notes that no surgical intervention has been
recommended and the claimant has been treated with conservative
treatment measures with varying amounts of relief noted. The
undersigned notes that in a report, dated April 2011, Dr. Johnson
reported that it was difficult for the claimant to be functional from a
disability standpoint. Yet, in May 2011, consulting physician, Dr.
Gause, noted the exam was unremarkable except for impaired range
of motion in the cervical and lumbar spines and both shoulders.
The undersigned acknowledges the residual functional capacity
questionnaire from Dr. Johnson, dated April 2012. While the doctor
indicated that he saw the claimant 3-4 times a year, Dr. Johnson
specifically reported that the limitations were based on the claimant’s
statements and subjective complaints of pain. Consequently, the
undersigned gives Dr. Johnson’s opinions only partial weight. In fact,
his subsequent progress notes reflect the claimant’s pain was stable
aside from a mild flare in November 2012.
The claimant has subjectively reported recurrent, chronic headaches.
While the medical record does not contain objective findings to
substantiate a medically determinable cause for her symptoms nor
have there been any physical examination findings consistent with her
subjective complaints, the undersigned views this as likely
complicating her generalized pain and thus as a severe impairment.
The record also indicates that claimant has complained of depression
and anxiety related to her pain. However, while review of the record
reflects these were initially addressed with medication, the claimant
was not [compliant] in this regard, discontinuing medications on her
own. Further, on consultative exam in April 2011, Dr. Halazon
reported she did not display any pain behavior. However, she was
emotional and tearful and Dr. Halazon concluded she had an
adjustment disorder. While she assessed the claimant’s GAF at 50,
suggestive of serious impairment in functioning, the claimant reported
her prior day included driving, grocery shopping, putting items away,
picking her daughter up from school, making dinner, doing dishes and
folding laundry, which suggests she had a range of ability to function.
Dr. Halazon concluded the claimant could follow 1 and 2 part
directives but that her pain would interfere with her ability for
concentration and focus. Dr. Halazon’s limitations are reasonably
accounted for in the above residual functional capacity finding.
As outlined above, the record is void of subsequent mental health
treatment until February 2012, when claimant saw Dr. Olson. While
the claimant complained of continuing depression and anxiety, Dr.
Olson reported little evidence of abnormality and concluded she had
a mood disorder due to chronic pain. While he assessed her GAF at
40, the undersigned notes that this conclusion is inconsistent with his
exam findings as well as the claimant’s reported activities of daily
living. Further, while he recommended cognitive therapy the record
is void of such treatment evidence. In fact, at the hearing, the claimant
testified she is receiving no treatment in this regard, which suggests
her symptoms are not as severe as alleged. She also confirmed she
was not taking any medication for depression.
Moreover, the claimant’s actual functioning, as indicated by her
activities of daily living, also shows she is more functional than her
allegations suggest. At the time the claimant filed for benefits, she
described daily activities which include getting her daughter off to
school, cooking, cleaning, laundry and gardening. She was
independent with regard to personal care. She drove on a regular basis
and shopped several times a month. Her husband confirmed these
activities at that time. As previously noted when seen for consultative
exam in 2011, she reported she maintained the ability to perform most
of these tasks. The claimant testified that her husband now does most
of the household tasks and that she spends most of the day watching
television. However, upon further questioning by her attorney, she
acknowledged that she is able to cook and vacuum and perform some
tasks when her husband is away at work. She indicated the ability to
sit 30 minutes, stand 15 minutes, walk ½ block and lift a gallon of
milk, all of which are within the aforementioned residual functional
capacity finding. Overall, the undersigned finds the claimant’s
allegations regarding the symptoms and limitations associated with her
impairments to be less than fully credible. Though the objective
evidence does reflect that her conditions cause some work related
limitations, the extent of such limitations, as subjectively reported by
the claimant, is not supported by the objective medical findings,
physical exam findings, and overall treatment documentation.
Tr. at 61-62.
Contrary to plaintiff’s claims, the ALL did consider plaintiff’s shoulder impairment
and determined based upon the objective evidence that plaintiff’s shoulder impairment was not a
severe impairment. Plaintiff has pointed to no medical evidence in the record that could contradict
that conclusion. In the opinion of the undersigned, the ALL properly considered plaintiff’s claim of
a shoulder impairment. Further, plaintiff complains that the ALL improperly used too much
“boilerplate language” in his opinion pointing to only one sentence of the opinion. After a review of
the decision, I can only conclude that the ALL’s decision that plaintiff is not disabled is well
explained and that there is substantial evidence in the record that supports the Commissioner’s
decision that plaintiff is not disabled as defined by the Social Security Administration.
Accordingly, the decision of the Commissioner is AFFIRMED and plaintiff’s request
for relief is DENIED.
Dated: June 30, 2015
/s/ TIMOTHY P. GREELEY
TIMOTHY P. GREELEY
UNITED STATES MAGISTRATE JUDGE
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