Cappo v. Commissioner of Social Security
OPINION ; signed by Magistrate Judge Timothy P. Greeley (Magistrate Judge Timothy P. Greeley, cmb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 2:14-cv-210
HON. TIMOTHY P. GREELEY
Plaintiff filed an application for disability insurance benefits under Title II of the
Social Security Act on June 11, 2013. See Transcript of Administrative Hearing at page 10
(hereinafter Tr. at ___). Plaintiff alleges that he became disabled on June 9, 2009, due to
impairments of his back and knees, as well as mental health issues. Tr. at 10, 52-55, 59-60. On
September 9, 2013, Plaintiff’s application was denied, and on November 5, 2013, Plaintiff filed a
request for an administrative hearing before an Administrative Law Judge (ALJ). Tr. at 10. The
ALJ held a video hearing on March 21, 2014. Id. At the hearing, Plaintiff was represented by
counsel. Id. Testifying at the hearing were Plaintiff and vocational expert David Ostwald. Tr. at
80. In a decision issued May 28, 2014, the ALJ denied Plaintiff’s claim for benefits. Tr. at 1030. Plaintiff then filed this action on October 7, 2014. Docket # 1.
Plaintiff suffers from degenerative disc disease, asthma, traumatic brain injury,
and post-traumatic stress disorder. Tr. at 15. At his hearing, Plaintiff testified that he previously
worked as a supervisor/ice bagger and as a machinist for the military. Tr. at 48-50. He testified
that he was injured by an IED while on duty on June 9, 2009. See Tr. at 41, 61. Since that time,
Plaintiff stated that his back sometimes gives out (requiring him to use a back brace and cane),
and that he can no longer sit or stand for more than ten minutes at a time. Tr. at 53-54, 72. He
indicated that he drives once or twice a week, and when driving for long distances, he has to stop
approximately every twenty minutes. Tr. at 82. Plaintiff testified that he does about five minutes
of dishes, shoveling, or laundry a day when possible. Tr. at 66, 70-71. Moreover, he has
headaches that sometimes turn into migraines about three to five times a week. Tr. at 61. While
Plaintiff remained employed by the army and on active duty until June 27, 2012, he claims that
he has not really worked since his accident on June 9, 2009. Tr. at 41, 44-45, 47.
Vocational expert David Ostwald testified at the hearing and was asked to
evaluate Plaintiff’s ability to perform his past relevant work based on several different
hypotheticals. Tr. at 80. The first hypothetical scenario asked if a person with Plaintiff’s past
relevant work experience that had the following limitations would be able to perform Plaintiff’s
past job as a supervisor/ice storage worker and a mechanic: work at the light exertional level,
except that the individual would be unable to climb ladders, ropes, or scaffolds; limited to
occasional climbing of ramps and stairs; occasional balancing, stooping, kneeling, crouching, and
crawling; not operate foot controls with the lower right extremity; avoid concentrated exposure to
extreme cold, wetness, humidity, vibration, and fumes, odors, dust, gases, and poor ventilation;
avoid exposure to all hazards; limited to simple, routine and repetitive work tasks involving
simple work-related decisions; and, limited to occasional contact with coworkers, supervisors,
and the public. Tr. at 82-83. Mr. Ostwald stated that this person would likely be able to work as
a supervisor/ice storage worker as long as the cold condition was modified, but not as a
mechanic; however, this person could perform work requiring general and light cleaning (3,000-2-
3,500 jobs), or work as an office helper (1,000 to 1,500 jobs), and a marker (4,000-5,000 jobs).
Tr. at 83-85. The ALJ next asked Mr. Ostwald what positions would be available for someone
that could do sedentary exeterional level work with the same restrictions as outlined in the
previous hypothetical. Tr. at 85. Mr. Ostwald stated that this person could do some inspector,
tester, or sorter work (200-500 jobs locally; 8,000-10,000 jobs nationally) and some machinetending work (500 to 1,000 jobs locally; 8,000-10,000 jobs nationally). Tr. at 85-86. The ALJ’s
next hypothetical used the same restrictions, and added the option of alternating between sitting
and standing (with sitting limited to one hour at a time and standing or walking limited to ten
minutes at a time). Tr. at 86. Mr. Ostwald testified that the same sedentary work would be
available for this person as mentioned in the second hypothetical. Tr. at 87. The ALJ added the
condition of using a cane for ambulation, and Mr. Ostwald stated that this person would be able
to do the same work as listed in the sedentary hypothetical as well. Id. For the ALJ’s last
hypothetical, he added the requirement that the person take unscheduled breaks four to five times
during the work week for a minimum of thirty minutes at a time. Id. Mr. Ostwald stated there
would be no jobs available for such a person. Id.
The ALJ determined that Plaintiff suffers from degenerative disc disease, asthma,
traumatic brain injury, and post-traumatic stress disorder. Tr. at 15. Based on these conditions
and the ALJ’s determination of Plaintiff’s physical and mental capabilities, the ALJ concluded
that Plaintiff could not perform his past relevant work. Tr. at 28-29. However, she concluded
that there were other jobs existing in significant numbers in the national economy that Plaintiff
could perform. Id.
Plaintiff filed an appeal in this Court on October 7, 2014 (docket # 1), alleging
that the ALJ’s decision to deny social security benefits to Plaintiff was improper because the
ALJ’s RFC finding did not take into account Plaintiff’s chronic headaches. Docket # 10.
Defendant Commissioner of Social Security filed a Response on December 19, 2014. Docket #
11. Plaintiff filed a Reply on March 16, 2015. Docket # 12. The matter is now ready for a
“Our review of the ALJ’s decision is limited to whether the ALJ applied the
correct legal standards and whether the findings of the ALJ are supported by substantial
evidence.” Winslow v. Comm’r of Soc. Sec., 566 Fed. App’x 418, 420 (6th Cir. 2014) (quoting
Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009)); see also 42 U.S.C. § 405(g).
The findings of the ALJ are conclusive if they are supported by substantial evidence. 42 U.S.C. §
405(g). Substantial evidence is defined as more than a mere scintilla of evidence but “such
relevant evidence that a reasonable mind might accept as adequate to support a conclusion.”
Jones v. Sec’y, Health & Human Servs., 945 F.2d 1365, 1369 (6th Cir. 1991). This Court is not
permitted to try the case de novo, nor resolve conflicts in the evidence and cannot decide
questions of credibility. Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th
Cir. 1989); see Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003) (noting the
ALJ’s decision cannot be overturned if sufficient evidence supports the decision regardless of
whether evidence also supports a contradictory conclusion). This Court is required to examine
the administrative record as a whole and affirm the Commissioner’s decision if it is supported by
substantial evidence, even if this Court would have decided the matter differently. See Kinsella
v. Schwikers, 708 F.2d 1058, 1059 (6th Cir. 1983); see also Mullen v. Bowen, 800 F.2d 535, 545
(6th Cir. 1986) (holding that the court must affirm a Commissioner even if substantial evidence
would support the opposite conclusion).
The ALJ must employ a five-step sequential analysis to determine if Plaintiff is
under a disability as defined by the Social Security Act. Warner v. Comm’r of Soc. Sec., 375
F.3d 387, 390 (6th Cir. 2004). If the ALJ determines Plaintiff is or is not disabled under a step,
the analysis ceases and Plaintiff is declared as such. 20 C.F.R. § 404.1520(a). Steps four and
five use the residual functional capacity assessment in evaluating the claim. Id.
At step one, the ALJ determined that Plaintiff engaged in substantial gainful
activity from June 9, 2009, through July 27, 2012; however, Plaintiff had not engaged in
substantial gainful activity since July 27, 2012 (much later than Plaintiff’s alleged onset date of
June 9, 2009). Tr. at 14; see 20 C.F.R. § 404.1520(b). At step two, the ALJ determined Plaintiff
has the following severe impairments: degenerative disc disease, asthma, traumatic brain injury,
and post-traumatic stress disorder. Tr. at 15. At step three, the ALJ determined Plaintiff’s
impairments or a combination of impairments did not meet or medically equal the severity of one
of the listed impairments in 20 C.F.R. part 404, Subpart P, Appendix 1. Tr. at 17-18. At step
four, the ALJ determined Plaintiff has the residual functional capacity (RFC) to perform
sedentary work, as defined in 20 C.F.R.§ 404.1567(a), with the additional limitations: he cannot
operate foot controls with right lower extremity; he can occasionally balance, stoop, kneel,
crouch, crawl and climb ramps and stairs; never climb ladders, ropes or scaffolds; avoid
concentrated exposure to extreme cold, wetness, humidity, vibration and fumes, odors, dusts,
gases and poor ventilation, and all exposure to hazards; perform simple, routine, and repetitive
work tasks involving simple work-related decisions; have occasional contact with coworkers,
supervisors, and the public. Tr. at 18. At step five, the ALJ concluded that Plaintiff could not
perform his past relevant work, but that there were jobs available in significant numbers in the
national economy that Plaintiff could do, such as: inspector (200-500 jobs locally; 8,000 to
10,000 jobs nationally) and production worker (500 to 1,000 jobs locally; 8,000 to 10,000 jobs
nationally). Tr. at 29-30. Therefore, the ALJ held that Plaintiff was not disabled during the time
period from his alleged onset date through his date last insured. Tr. at 30.
Plaintiff contends that the ALJ did not properly account for Plaintiff’s “severe,”
debilitating headaches in her RFC finding, and that there was not substantial evidence on record
to support the ALJ’s RFC determination. Docket #10. Upon review of the evidence on record,
this Court affirms the ALJ’s conclusions.
Plaintiff claims that the ALJ’s RFC finding is not supported by substantial
evidence primarily because the ALJ did not address Plaintiff’s complaints of chronic, consistent
headaches. The ALJ’s RFC finding indicated that Plaintiff could perform sedentary work with
several limitations. Tr. at 18, 30; see 20 C.F.R. § 404.1567(a). The ALJ’s RFC finding states
After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform
sedentary work as defined in 20 CFR 404.1567(a) except that he
cannot operate foot controls with the right lower extremity. The
claimant can occasionally balance, stoop, kneel, crouch, crawl and
climb ramps and stairs and never climb ladders, ropes or scaffolds.
He should avoid concentrated exposure to extreme cold, wetness,
humidity, vibration and fumes, odors, dusts, gases and poor
ventilation and all exposure to hazards. The claimant can perform
simple, routine and repetitive work tasks involving simple workrelated decisions. He can have occasional contact with coworkers,
supervisors and the public.
Tr. at 18. Plaintiff claims that even though this RFC finding is detailed, it does not address
Plaintiff’s chronic, severe headaches that “render him off task for considerable periods of time.”
Docket # 10 at 5. Plaintiff cites both his subjective complaints and NP Judith Bjork’s opinion as
evidence supporting his conclusion that the RFC finding is improper.1
An RFC finding is what a person is able to do despite his or her limitations. SSR
96-8p, 1996 WL 374184, at *1 (noting an RFC is not the least a person can do, but rather the
most a person can do). The ALJ makes RFC findings. Id. at *2. In making an RFC
determination, the ALJ must consider “only functional limitations and restrictions that result
from an individual’s medically determinable impairment or combination of impairments,
including the impact of any related symptoms.” Id. at *1. The RFC finding must be based on all
relevant evidence on record, including an individual’s medical history, reports of daily activity,
and recorded observations, for example. Id. at *5.
Plaintiff first contends that his subjective complaints pertaining to his chronic
headaches were not afforded sufficient weight, and therefore the RFC determination is improper
and not supported by substantial evidence. When an ALJ evaluates an individual’s complaints of
pain and disabling symptoms, the ALJ may consider the credibility of the person. Walters v.
Comm’r of Soc. Sec’y, 127 F.3d 525, 531 (6th Cir. 1997). “[A]n ALJ’s findings based on the
credibility of the applicant are to be accorded great weight and deference, particularly since an
ALJ is charged with the duty of observing a witness’s demeanor and credibility.” Id. (citing
Villarreal v. Sec’y of Health & Human Servs., 818 F.2d 461, 463 (6th Cir. 1987). An ALJ’s
determination of a plaintiff’s credibility must be supported by substantial evidence. Id.; Winslow,
Notably, however, Plaintiff’s subjective complaints are the only piece of evidence showing that his
headaches render him “off task” for considerable periods of time. Docket # 10 at 5.
566 Fed. App’x at 422. Simply stating that Plaintiff has pain or other symptoms is not sufficient
to establish that the individual is disabled. Walters, 127 F.3d at 531 (citing 20 C.F.R. §
404.1529(a)). The ALJ must assess an individual’s pain by using a two prong test:
First, we examine whether there is objective medical evidence of an
underlying medical condition. If there is, we then examine: (1)
whether objective medical evidence confirms the severity of the
alleged pain arising from the condition; or (2) whether the objectively
established medical condition is of such a severity that it can
reasonably be expected to produce the alleged disabling pain.
Id. (referencing Felisky v. Bowen, 35 F.3d 1027, 1038-39 (6th Cir. 1994) (quoting Duncan v.
Sec’y of Health & Human Servs., 801 F.2d 847, 853 (6th Cir. 1986)); see also 20 C.F.R. §
404.1529(a). “Discounting credibility to a certain degree is appropriate where an ALJ finds
contradictions among the medical reports, claimant’s testimony, and other evidence.” Walters,
127 F.3d at 531 (citing Bradley v. Sec’y of Health & Human Servs., 862 F.2d 1224, 1227 (6th
Cir. 1988)). An ALJ can also consider an individual’s ability to do household and social
activities when assessing the credibility of a person’s alleged pain and disabling symptoms. Id.
In determining that Plaintiff’s allegations of pain and disabling symptoms were
not credible, the ALJ identified several inconsistencies between Plaintiff’s testimony and the
medical (and non-medical) records provided. The ALJ appropriately evaluated and considered
Plaintiff’s allegations of pain in his decision:
The claimant premised his application for disability insurance
benefits on allegations of degenerative disc disease, back spasm, a
traumatic brain injury, a knee impairment, asthma, dyslexia, posttraumatic stress disorder, attention deficit hyperactivity disorder and
a learning disability. Since filing his application, he reported
worsening of his symptoms, noting that his conditions limited every
aspect of his life. The claimant alleged that his conditions affected
his ability to lift, stand, walk, sit, squat, bend, kneel, climb stairs,
reach, remember, complete tasks and get along with others.
Specifically, he stated that he could lift no more than 25 pounds and
that he could walk only ten minutes before needing to stop and rest.
He further stated that he did not finish what he started and that he had
trouble completing tasks.
Tr. at 19. Despite these allegations, the ALJ determined Plaintiff’s testimony pertaining to his
pain and disabling symptoms was not entirely credible:
After careful consideration of the evidence, the undersigned finds that
the claimant’s medically determinable impairments could reasonably
be expected to cause the alleged symptoms; however, the claimant’s
statement’s concerning the intensity, persistence and limiting
effects of these symptoms are not entirely credible for the reasons
explained in this decision.
As previously stated, the claimant served in the United States Army
from 2004 to July 2012. The claimant’s service is commendable and
included two deployments. His first deployment was to Iraq for 15
months from 2006 to 2007 and the second was to Afghanistan from
January 2009 to September 2009. He has reported sleeping problems
since his first deployment while exposed to multiple firefights.
During his second deployment, while working as a mechanic, he
experienced two back injuries while working as a mechanic.
Treatment records also indicate that the claimant was exposed to an
IED attack in June 2009 in Afghanistan. The claimant was seen in
Germany for post-traumatic stress disorder, traumatic brain injury,
insomnia, nightmares, post-concussion syndrome and was advised
upon return to follow up with treatment.
The claimant’s unit was set to deploy in November 2010, but the
claimant was found “Not Fit for Duty” due to back problems. The
record supports a finding that the claimant was not deployable after
the alleged onset date. However, the record does not support a
finding that the claimant has been unable to perform all work related
activity since June 9, 2009. Although the claimant has alleged that he
has been unable to engage in all work related activity since June 9,
2009, there are very few treatment records to review prior to May
In October of 2010, the claimant presented for a traumatic brain
injury evaluation. He reported symptoms of headaches, occasional
ringing in the ears, insomnia, dizziness, anxiety, nightmares,
irritability, stress and sensitivity to light and noise. On examination,
the claimant was alert and oriented. He demonstrated intact rapid
alternating movements, finger-to-nose movements and heel-to-shin
movements. He maintained 5+ strength bilaterally in the upper and
lower extremities. The claimant had a normal gait and Romberg’s
sign was negative. His lungs were clear to auscultation bilaterally.
These observations and findings are consistent with relatively mild
musculoskeletal, respiratory and neurologic symptoms, contrary to
the claimant’s allegations. The examiner diagnosed a history of
concussion, headache syndrome, insomnia, anxiety, tinnitus,
lightheadedness, tobacco use and referred the claimant for
psychiatric care. The examiner released the claimant without
limitations. The claimant has been treated with medication for
headaches. However, the record does not support a finding that he
has experienced headaches with a frequency or severity that
would result in a finding that the claimant is precluded from
performing all work related activity. In July 2011, the claimant
reported to treating mental health professionals that he was traveling
from Texas to Washington to visit his girlfriend’s family, which
involved a straight 34-hour drive. If the claimant were experiencing
the severity and frequency of symptoms he alleged, it would be
unlikely that the claimant would undertake such demanding
travel. Similarly, this strongly suggests that his back impairment did
not prevent the claimant from sitting.
In June of 2011 . . . he reported that he continued to experience
insomnia, headaches and back pain. On examination, the claimant
was alert and oriented. He demonstrated normal speech . . . . Later
that month, Rosanna Brown, P.A.-C., released the claimant with work
duty restrictions, but she did not include the specific restrictions. To
the extent that this constitutes an opinion, the undersigned gives it
very little weight as it was quite vague.
Also in May of 2013, the claimant presented to Debra J. Morley,
M.D., a neurologist, for a traumatic brain injury consultation. The
claimant reported to Dr. Morley that he was given a service rating of
zero percent for traumatic brain injury while in Fort Hood[,] Texas.
He reported that his service officer told him to refile his claim
because he was experiencing memory problems. At that time, the
claimant reported that he experienced a head injury in 2009 and that
he returned to his regular job as a mechanic following the accident .
. . . Dr. Morley noted that while the claimant sustained a mild
traumatic brain injury in 2009, an MRI of the brain performed in 2010
was unremarkable. Dr. Morley concluded that the claimant likely did
suffer a single mild traumatic brain injury during the IED detonation
on his vehicle. She stated that such a mild injury would not be
associated with any significant cognitive sequalea and certainly would
not explain his complaints of progressive memory loss and
forgetfulness. Dr. Morley’s observations and assessment further
suggest that the claimant’s traumatic brain injury does not cause
functional limitations beyond those included in the abovereferenced residual functional capacity.
The claimant has moderate limitations in concentration, persistence
or pace. In July of 2013, the claimant reported that he was able to pay
bills, count change, handle a savings account and use a checkbook
and money orders. At that time, he reported that his hobbies included
watching television, playing video games and playing board games.
The claimant has continued to engage in activities that require
the ability to concentrate, such as drive, manage his finances,
volunteer on a school bus and watch young children, which
strongly suggests that the claimant has the ability to concentrate.
However, considering the claimant’s subjective complaints and the
combined effects of his post-traumatic stress disorder and traumatic
brain injury, the undersigned finds that the claimant has moderate
limitations in concentration, persistence or pace.
Overall, this evidence is not consistent with the claimant’s
allegations made through his representative, that he cannot
sustain even sedentary exertional work due to his physical
limitations and that he cannot engage in basic work activities due
to his mental limitations. The claimant was treated conservatively
with good results. The objective medical evidence has revealed
relatively mild abnormalities and examiners did not observe findings
consistent with functional limitations beyond those included in the
above-referenced residual functional capacity.
Tr. at 19-21, 24 (citations omitted) (emphasis added). The ALJ’s assessment of Plaintiff’s pain
and disabling symptoms is thorough and complete. The ALJ properly concluded that Plaintiff’s
debilitating headache allegations were inconsistent with the medical evidence, and therefore
appropriately afforded little weight.2 See, e.g., Winslow, 566 Fed. App’x at 422 (demonstrating
that ALJ found claimant’s alleged functional limitations not credible because it largely conflicted
with credible, objective medical evidence). Thus, this Court affirms the ALJ’s RFC
Next, Plaintiff contends that the ALJ did not afford NP Judith Bjork’s opinion
sufficient weight when making his RFC determination. Docket # 10 at 1, 9-10 (citing Tr. 908,
912) (noting that NP Bjork concluded that Plaintiff’s “[h]eadaches result in going to a quiet dark
area 1-2 times a week, 30 minutes to one hour,” which Plaintiff believes renders him incapable of
working at any level).
When determining a claimant’s RFC, “[i]t is well established that the ALJ may
not substitute his medical judgment for that of the claimant’s physicians.” Brown v. Comm’r of
Soc. Sec., No. 1:14-CV-236, 2015 WL 1431521, *7 (W.D. Mich. Mar. 27, 2015) (citing Meece v.
Barnhart, 192 Fed. App’x 456, 465 (6th Cir. 2006)); see Simpson v. Comm’r of Soc. Sec., 344
For example, Plaintiff claims he cannot work because his chronic headaches are sporadic, unpredictable,
and debilitating; however, reports show that he is capable of performing competitive work at the sedentary level. See,
e.g., Tr. at 1651-52 (stating he can perform sedentary work with limitations); Tr. at 1560-63 (noting Plaintiff’s TBI
only moderately impacts his occupational and social impairments; “such a mild [TBI] injury would not be associated
with any significant cognitive sequalae. It would certainly not explain his complaints of progressive memory loss and
forgetfulness . . . . MRI was unremarkable;” and Plaintiff can babysit his son regularly, go shopping, go to the
movies, do laundry, watch TV, play video games, and shovel).
Fed. App’x 181, 194 (6th Cir. 2009) (quoting Rohan v. Charter, 98 F.3d 966, 970 (7th Cir. 1996)
(“ALJs must not succumb to the temptation to play doctor and make their own independent
medical findings.”). However, when evaluating the claimant’s RFC, the ALJ is not required to
base his or her RFC findings entirely on a physician’s opinion. See Rudd v. Comm’r of Soc. Sec.,
531 Fed. App’x 719, 728 (6th Cir. 2013) (quoting SSR-96-5p) (“[T]o require the ALJ to base her
RFC finding on a physician’s opinion, ‘would, in effect, confer upon the treating source the
authority to make the determination or decision about whether an individual is under a disability,
and thus would be an abdication of the Commissioner’s statutory responsibility to determine
whether an individual is disabled.’”). “[A]n ALJ does not improperly assume the role of a
medical expert by assessing the medical and non-medical evidence before rendering a residual
functional capacity finding.” Poe v. Comm’r of Soc. Sec., 342 Fed. App’x 149, 157 (6th Cir.
In his decision, the ALJ did consider the medical opinion of NP Bjork:
The undersigned also gives some weight to Ms. Bjork’s opinion that
the claimant’s traumatic brain injury and headaches affected his
ability to work. She noted that the claimant needed to go to a quiet
dark area at least one-to-two times per week for up to an hour. While
the claimant’s traumatic brain injury is does [sic] cause work related
restrictions, there is no objective evidence to justify the need for
frequent breaks. As discussed above, an MRI of the brain was
unremarkable and neurologic examinations did not reveal
abnormalities consistent with such severe limitations.
Tr. at 25 (citations omitted). Upon review of the evidence, the ALJ’s analysis of NP Bjork’s
opinion, in light of all of the evidence of record, is thorough and complete. Regardless, Plaintiff
believes the ALJ should have relied on the single part of NP Bjork’s opinion that stated that
Plaintiff’s “[h]eadaches result in going to a quiet dark area 1-2 times a week, 30 minutes to one
hour” because this supports Plaintiff’s conclusion that he is incapable of working at any level.
Tr. at 25; 912. Notably, however, immediately after making this notation in her report, NP Bjork
indicated that Plaintiff’s MRI results were normal. Tr. at 912. Moreover, the ALJ was under no
requirement to follow this single conclusion by NP Bjork; and, the ALJ appropriately did not
follow her opinion in this case due to the lack of objective medical evidence on record to support
her conclusion (as exemplified in the excerpt from the previous section).
Furthermore, an ALJ’s RFC determination is supposed to represent the “most [a
person] can still do despite [his or her] limitations.” 20 C.F.R. § 404.1545(a)(1) (emphasis
added). Therefore, despite Plaintiff’s complaints of chronic headaches, there is sufficient
evidence on record to support the ALJ’s RFC finding that Plaintiff can, at most, perform
Based on a review of the ALJ’s decision, it is clear that the ALJ adequately
considered all of the medical and non-medical evidence of record in making her RFC
determination. Poe, 342 Fed. App’x at 157. As a result, the ALJ’s RFC finding is supported by
substantial evidence, and this Court affirms the ALJ’s decision. See Jones, 336 F.3d at 475
(noting that this Court affirms the ALJ’s decision when there is sufficient medical evidence to
support the ALJ’s conclusions).
Plaintiff’s final argument is that the ALJ did not afford sufficient weight to the
opinion of LMSW Kim Green. Docket # 10 at 11-19. Regarding Ms. Green’s report, the ALJ
included the following in her decision:
The undesigned gives little weight to the February of 2014 opinion
offered by Kim Green, L.C.S.W. Regarding the claimant’s anxiety
disorder, she noted that the claimant had generalized persistent
asthma with motor tension, autonomic hyperactivity, apprehensive
expectation and vigilance and scanning. She further noted that the
claimant exhibited persistent and irrational fears, experienced
recurrent obsessions or compulsions that were a source of marked
distress and experienced recurrent and intrusive recollection of a
traumatic experience that were a source of marked distress. Ms.
Green opined that the claimant had marked limitations in activities of
daily living and moderate limitations in social functioning, in
concentration, persistence or pace and in episodes of decompensation.
Regarding the claimant’s depressive disorder, she likewise noted that
the claimant experienced several symptoms. She noted that the
claimant had moderate limitations in social functioning and in
concentration, persistence or pace and that the claimant had marked
limitations in activities of daily living and in episodes of
decompensation. The undersigned has not assigned significant weight
to Ms. Green’s opinions for several reasons. She is a social worker
and not an acceptable medical source. Her opinion has been
considered, but the restrictions provided are inconsistent with the
claimant’s reported activity level and the observations of examiners
and other treating providers.
Tr. at 27. A social worker is not an acceptable medical source within the meaning of the Social
Security Act. 20 C.F.R. § 414.1513(a) (including only licensed physicians, licensed or certified
psychologist, licensed optometrists, licensed podiatrists, and qualified speech-language
pathologists); see SSR 06-03p, 2006 WL 2329939, at *2 (noting that only acceptable medical
sources may be given controlling weight). Rather, Ms. Green is considered to be an “other
source” under the Act—meaning, her opinion is entitled to consideration given her longstanding
relationship with Plaintiff. 20 C.F.R. § 404.1513(d)(1); see Cole v. Astrue, 661 F.3d 931, 939
(6th Cir. 2011) (noting that a social worker that was plaintiff’s treating counselor should be
considered by the Commissioner). Based on the excerpt above, it is clear that the ALJ
considered Ms. Green’s opinion when determining Plaintiff’s mental RFC finding, which is all
she was required to do. See 20 C.F.R. § 404.1513(d)(1).
Even if Ms. Green was an acceptable medical source, the ALJ was under no
obligation to afford her opinion great weight because, under the Act, opinions of long-term
treating physicians are only given “great weight” when the opinions are supported by “sufficient
clinical findings and are consistent with the evidence.” Cutlip v. Sec’y of Health & Human
Servs., 25 F.3d 284, 287 (6th Cir. 1994); 20 C.F.R. § 404.1527(c). As discussed above, the ALJ
accurately found that the restrictions noted by Ms. Green “are inconsistent with the claimant’s
reported activity level and the observations of examiners and other treating providers.”3 Tr. at 27.
Therefore, the ALJ did not inappropriately disregard Ms. Green’s opinion, and his decision to
afford her little weight is supported by the evidence of record.
Therefore, based on the ALJ’s reasoned decision and upon review of the medical
opinions and non-medical evidence of record, it is clear that there is substantial evidence to
support the ALJ’s overall RFC finding. Thus, this Court affirms the ALJ’s RFC determination.
Plaintiff’s request to remand this case to the Social Security Administration
pursuant to Sentence Four or Six of 42 U.S.C. § 405(g) is denied. There is substantial evidence
in the record that supports the Commissioner’s decision that Plaintiff was not disabled as defined
by the Social Security Administration. In addition, Plaintiff has not provided new or previously
unavailable evidence to support his claim. Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990)
(noting that new evidence is that which did not exist or was unavailable at the time of the
hearing). In fact, Plaintiff makes no argument that he has new and material evidence for the
Some inconsistencies are, for example, that Plaintiff reported being able to concentrate enough to drive a
car, manage his finances, watch young children, and volunteer on a school bus (Tr. at 24 (citing Ex. 6E at 9-10)), and
that the State Agency medical consultant found that Plaintiff did not have episodes of decompensation for extended
duration, and that Plaintiff could perform one and two step tasks regularly. Tr. at 26 (citing Ex. 20F at 3).
courts to consider on remand. Instead, Plaintiff argues that his previously admitted evidence was
improperly considered by the ALJ. Consequently, this Court concludes the Plaintiff has not met
her burden to grant a reversal or remand in his case pursuant to Sentence Four or Six of 42
U.S.C. § 405(g).
Accordingly, the decision of the Commissioner is AFFIRMED (docket # 11) and
Plaintiff’s request for relief is DENIED (docket # 10).
NOTICE TO PARTIES: Objections to this Report and Recommendation must be
served on opposing parties and filed with the Clerk of the Court within ten (10) days of receipt of
this Report and Recommendation. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b); W.D. Mich.
LCivR 72.3(b). Failure to file timely objections constitutes a waiver of any further right to
appeal. United States v. Walters, 638 F.2d 947 (6th Cir. 1981); see also Thomas v. Arn, 474 U.S.
___/s/ Timothy P. Greeley_______________
TIMOTHY P. GREELEY
UNITED STATES MAGISTRATE JUDGE
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