Argall v. Commissioner of Social Security

Filing 21

OPINION ; signed by Magistrate Judge Timothy P. Greeley (Magistrate Judge Timothy P. Greeley, jas)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

DARIN ARGALL,
Plaintiff,
Case No. 2:16-cv-31
HON. TIMOTHY P. GREELEY

v.
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
___________________________________/

OPINION
This is a social security action brought under 42 U.S.C. § 405(g) seeking judicial
review of a final decision by the Commissioner of the Social Security Administration
(Commissioner).1 Plaintiff Darin Argall filed an initial brief on October 21, 2016 (ECF No. 16)
and a supplemental brief on November 7, 2016 (ECF No. 18). Defendant filed a response on
November 22, 2016. (ECF No. 19.) Plaintiff did not filed a reply. The matter is now ready for a
decision. 2
Plaintiff alleges that he became disabled on August 6, 2012. On July 10, 2013,
Plaintiff Darin Argall filed an application for disability insurance benefits under Title II of the
Social Security Act. (ECF No. 7-2, PageID.52.) In his initial application for disability benefits,
Plaintiff alleged that he was disabled because of “fractured ribs, separated clavicle, bulging discs,

1

Pursuant Federal Rule of Civil Procedure 25(d), the caption in this case has been updated to reflect that Nancy A.
Berryhill is now the Acting Commissioner of Social Security.
2
Both parties consented to proceed before a Magistrate Judge. ECF No. 10.

separated left shoulder, damaged lungs, blood line through heart, damaged right hand and wrist, 2
hernia surgeries, chronic pain, difficulty turning neck or back, and learning disabilities.” (ECF
No. 7-4, PageID.118.) On October 15, 2013, Plaintiff’s application was denied. (PageID.118.)
On December 17, 2013, Plaintiff filed a Title XVI application for supplemental security income
and a written request for an administrative hearing before an Administrative Law Judge (ALJ).
(PageID.122.)
The ALJ held a hearing on September 10, 2015, in which Plaintiff was represented
by a non-lawyer. (ECF No. 7-2, PageID.70.) At the hearing, Plaintiff testified that he was thirtysix years old and had a GED. (PageID.76.) He stated that he used to work as a mason and was
injured at work on August 6, 2012. Plaintiff worked for three days after his injury, but could not
continue to work because the pain was too severe. (PageID.76.) As a result of the injury, Plaintiff
received an $80,000 workers compensation settlement. (PageID.77.) Since the injury, Plaintiff
spends most of the day “watching TV or not doing a whole lot.” (PageID.79.) Plaintiff tried
physical therapy for a period of time, but it was not helpful. (PageID.85-86.) He testified that he
struggles with performing daily tasks and can only walk one block, stand for one hour, or sit for
one hour before needing breaks because of the pain. (PageID.91-92.)
In addition to Plaintiff’s testimony, a vocational expert—Dr. Jacquelyn E.
Wenkman—testified at the hearing. (PageID.95-98.) The ALJ asked Dr. Wenkman whether a
person of the Plaintiff’s age, education, and work experience could work as a mason with the
following non-exertional limitations: no climbing ladders, ropes, or scaffolds; moderate exposure
to moving machinery and unprotected heights; limited reaching with upper right extremity; and
allowing ten percent of work day off task. (PageID.95-96.) Dr. Wenkman responded “no.”
(PageID.96.) However, Dr. Wenkman stated that a person with the same limitations could perform

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light level jobs including: lobby attendant (87,000 positions); cafeteria attendant (225,000
positions); and machine tender (168,000 positions). (PageID.96.) In addition, Dr. Wenkman
testified that a person with the same limitations could perform the following sedentary level
positions: lobby or building attendant (17,000 positions); machine tending (22,000 positions);
clerk (79,000 positions); and office helper (99,000 positions). (PageID.96.) Dr. Wenkman also
stated that if the person was off task fifteen percent of the workday, the potential jobs would be
eliminated. (PageID.96-97.)
On November 9, 2015, the ALJ issued a written decision denying Plaintiff’s claim
for benefits. (ECF No. 7-2, PageID.49.) The ALJ found that Plaintiff could perform jobs that
existed in significant numbers in the national economy given Plaintiff’s residual functional
capacity (RFC). (PageID.63.) Therefore, the ALJ concluded that Plaintiff was not under a
“disability,” as defined by the Social Security Act, 20 C.F.R. § 404.1520(g), from August 6, 2012
to the date of the decision. (PageID.63.)
Plaintiff subsequently appealed to the Appeals Council, which denied his request
for review on December 29, 2015. (ECF No. 7-2, PageID.25.) Plaintiff now seeks judicial review
of the agency’s final decision denying her request for disability benefits.
“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).
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

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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.
Schweiker, 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). At step one, the ALJ determines whether the claimant can still perform
substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). At step two, the ALJ determines
whether the claimant’s impairments are considered “severe.” 20 C.F.R. § 404.1520(a)(4)(ii). At
step three, the ALJ determines whether the claimant’s impairments meet or equal a listing in 20
C.F.R. part 404, Subpart P, Appendix 1. 20 C.F.R. § 404.1520(a)(4)(iii). At step four, the ALJ
determines whether the claimant has the residual functional capacity to still perform past relevant
work. 20 C.F.R. § 404.1520(a)(4)(iv). At step five, the ALJ determines whether a significant
number of other jobs exist in the national economy that the claimant can perform. 20 C.F.R. §
404.1520(a)(4)(v). If the ALJ determines Plaintiff is not disabled under any step, the analysis
ceases and Plaintiff is declared as such. 20 C.F.R § 404.1520(a).

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In this case, the ALJ correctly applied the five-step analysis. At step one, the ALJ
determined that Plaintiff had not engaged in substantial gainful activity since August 6, 2012, the
alleged onset date. (ECF No. 7-2, PageID.54.)
At step two, the ALJ determined that Plaintiff had the following severe
impairments: degenerative disc disease; degenerative joint disease, and status post left
sternoclavicular joint sprain. (PageID.54.) The ALJ found that Plaintiff’s chronic wrist pain was
not a severe impairment because Plaintiff injured his wrist in 2011 and had returned to work as a
mason with normal strength prior to the August 6, 2012, injury. (PageID.55.) The ALJ also found
that Plaintiff’s muscle aches and pains were not a severe impairment. (PageID.55.) Although
Plaintiff was diagnosed with fibromyalgia, the ALJ found that Plaintiff was diagnosed in 2015 and
did not meet the duration requirement in 20 C.F.R. § 404.1509. (PageID.55.) Moreover, the ALJ
found that Plaintiff’s medical examinations “show good musculoskeletal and neurologic function.”
(PageID.55.)
At step three, the ALJ determined that 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. (PageID.55.) The ALJ made this determination after
comparing Plaintiff’s back and neck injuries to the criteria listed under 1.04, and Plaintiff’s
sternoclavicular injuries to the criteria listed under 1.02. (PageID.55.)
At step four, the ALJ determined Plaintiff has the residual functional capacity
(RFC) to perform light work, as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), with the
additional limitations of: “no climbing of ladders, ropes or scaffolds, only frequent overhead
reaching with the right upper extremity, must avoid moderate exposure to the use of moving
machinery and unprotected heights, and allow off task 10% of the workday in addition to regular

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breaks.” (PageID.55.) This determination was based on a thorough review of Plaintiff’s medical
records. Relying on Plaintiff’s x-rays and MRIs, as well as, medical reports from Plaintiff’s
shoulder specialist and rehabilitation specialist, the ALJ found that Plaintiff suffered from
degenerative processes of the neck and back, and a sternoclavicular injury. (PageID.56-59.) The
ALJ also found that Plaintiff was more active than he alleged in his function reports and his
testimony at the hearing. (PageID.59-60.) The ALJ noted that some of the medical records
indicated that Plaintiff is capable of performing some forms of work but that he did not want to
work a “desk job.” (PageID.60.) Finally, the ALJ explained that he afforded little weight to some
of the medical records because the records were vague and/or largely inconsistent with Plaintiff’s
other medical records. (PageID.60-62.)
At step five, the ALJ determined that there were jobs that existed in significant
numbers in the national economy that Plaintiff could perform. (PageID.63.) The ALJ relied on
the vocational expert’s testimony that Plaintiff could perform light work jobs including: lobby
attendant (87,000 positions); cafeteria attendant (225,000 positions); and machine tender (168,000
positions). (PageID.63.) Therefore, the ALJ concluded that Plaintiff was not disabled during the
time period from his alleged onset date through the date of the decision. (PageID.63.)
Although Plaintiff filed an initial brief and a supplemental brief, he does not
advance any specific arguments challenging the Commissioner’s final decision. Instead, Plaintiff
broadly asserts that he has “significant” and “disabling” injuries that prevents him from returning
to work or performing other work and attached twenty-five pages of medical records. The medical
records that Plaintiff submitted can be separated into three categories: (1) medical records that
predate the Commissioner’s final decision but were not part of the certified administrative record
(PageID.613, 615, 621-23, 625-628); (2) medical records that postdate the Commissioner’s final

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decision and were not part of the certified administrative record (PageID.603-604, 616); and (3)
medical records that were part of the certified administrative record (PageID.605-612, 614, 624,
629-630).
With respect to the first two categories of medical records, Plaintiff is submitting
new evidence and is essentially requesting a sentence six remand. Under sentence six of 42 U.S.C.
§ 405(g), the court “may at any time order additional evidence to be taken before the Commissioner
of Social Security, but only upon a showing that there is new evidence which is material and that
there is good cause for the failure to incorporate such evidence into the record in a prior proceeding
. . . .” Thus, Plaintiff must show that (1) the evidence is new, (2) the evidence is material, and (3)
there is good cause for the failure to incorporate such evidence into the record. First, “evidence is
new only if it was ‘not in existence or available to the claimant at the time of the administrative
proceeding.’” Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001) (quoting Sullivan v. Finkelstein,
496 U.S. 617, 626 (1990)). Second, “evidence is ‘material’ only if there is ‘a reasonable
probability that the Secretary would have reached a different disposition of the disability claim if
presented with the new evidence.’” Id. (quoting Sizemore v. Sec’y of Health & Human Servs., 865
F.2d 709, 711 (6th Cir. 1988)). Third, “[a] claimant shows ‘good cause’ by demonstrating a
reasonable justification for the failure to acquire and present the evidence for inclusion in the
hearing before the ALJ.” Id. The Sixth Circuit has taken a “harder line” on the good cause test,
and requires a claimant to present a valid reason for failing to obtain a medical evaluation prior to
the hearing. Oliver v. Sec’y of Health & Human Servs., 804 F.2d 964, 966 (6th Cir. 1986); see
also Willis v. Sec’y of Health & Human Servs., 727 F.2d 551, 554 (6th Cir. 1984). The party
seeking remand bears the burden of showing that a remand is appropriate. Foster, 279 F.3d at 357.

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Here, Plaintiff has failed to meet his burden to show that a sentence six remand is
warranted. As described above, Plaintiff broadly asserts that he is disabled and attached several
pages of medical records. He does not describe why the records that predated the Commissioner’s
decision were not included in the record. Thus, Plaintiff fails to establish that the predated records
meet the “new” and “good cause” requirements to warrant a sentence six remand. In addition,
although the medical records that postdated the Commissioner’s decision are considered “new,”
Plaintiff does not meet the “good cause” requirement because he did not offer any reason for failing
to obtain these medical evaluations prior to the date of the Commissioner’s decision.
In addition, Plaintiff has failed to show that both the predated and postdated medical
records are “material” and would have any reasonable probably of altering the Commissioner’s
decision. Several of the medical records are consistent with Plaintiff’s prior medical records. For
example, on September 8, 2016, a doctor determined that Plaintiff had degenerative disc disease
and recommended that Plaintiff start a conditioning program. (PageID.603-04.) In addition, some
of the medical records seem to actually contradict Plaintiff’s argument that he is disabled. For
example, Plaintiff submitted a June 2015 Michigan Department of Human Services medical
assessment in which a medical consultant determined that Plaintiff was not disabled.
(PageID.621.) The medical consultant found that Plaintiff could lift twenty pounds occasionally
and ten pounds frequently in a workplace setting, which is consistent with the Commissioner’s
decision that Plaintiff can perform light work.
Further, with respect to the medical records that were already part of the
administrative record, it is unclear what part of the Commissioner’s decision that Plaintiff is
challenging.

Nonetheless, the Court finds that there is substantial evidence to support the

Commissioner’s decision that Plaintiff is not disabled. As discussed above, the ALJ correctly

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applied the five-step analysis in this case. In addition, the ALJ’s examination of Plaintiff’s medical
records is thorough and complete. Over the past several years, Plaintiff has routinely sought
medical treatment for his injuries from various doctors including: primary providers, shoulder and
rehabilitation specialists, and emergency room doctors. Based on these medical records, the ALJ
found that Plaintiff suffered from degenerative processes of the neck and back, as well as a
sternoclavicular injury. The ALJ stated:
In sum, the medical records document the degenerative processes of
the claimant’s neck and back along with the sternoclavicular injury.
The undersigned has accommodated these conductions by reducing
the claimant to light work except no climbing of ladders, ropers or
scaffolds, only frequent overhead reaching with the right upper
extremity, must avoid moderate exposure to the use of moving
machinery and unprotected heights, and allowed off task 10% of the
workday in addition to regular breaks. The elimination of ladders,
ropes or scaffolds and exposure to use of moving machinery and
unprotected heights accounts for his chronic use of narcotics for pain
control. The limitation on frequent overhead reaching with the right
upper extremity considers any radicular symptoms associated with
his neck pain. (ECF No. 7-7, PageID.420.) The additional time off
task addresses his complaints of ongoing, significant pain and his
use of chronic narcotic pain medication.
(ECF No. 7-2, PageID.59) (citation updated).
Plaintiff’s injuries restrict his movements and undoubtedly cause him pain.
However, as the ALJ detailed, the medical records suggest that Plaintiff overstates his pain and
symptoms. For example, in January 2013, Plaintiff was examined by a rehabilitation specialist.
(ECF No. 7-8, PageID.569.) The specialist noted that during a formal cervical spine examination,
Plaintiff could “extend, flex or rotate the cervical spine right or left” ten degrees, but it was painful.
However, the specialist also noted that when casually observed, Plaintiff appeared to rotate the
cervical spine at least 30 degrees without any pain. Similarly, in December 2012, Plaintiff
complained of a constant popping sensation in his left shoulder. (ECF No. 7-8, PageID.564.)

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However, when he was examined by a shoulder specialist, Plaintiff could not reproduce the
popping sensation.
Furthermore, the medical records indicate that Plaintiff is more active than he
alleged at the hearing. In the decision, the ALJ summarized some of these records:
[I]n November 2012, he indicated that his injury did not have an
impact on his mobility, bathing, dressing, feeding/swallowing,
toileting, grooming/hygiene, or communication abilities (ECF No.
7-8, PageID.543). He reported to his treating provider in October
2013 that he was helping a friend with a trailer (ECF No. 7-7,
PageID.445) and in November that he shingled a roof and had been
getting firewood ready for winter (ECF No. 7-7, PageID.442). In
June 2014, he told his treating provider that he was performing
masonry work. He indicated he was letting others do the heavy
lifting (ECF No. 7-7, PageID.438). In February 2015, he told his
primary care provider that he primarily heated his house with wood
and, while someone else splits his wood for him, he was generally
able to carry the wood in to his house (ECF No. 7-7, PageID.475).
He also indicated that he would occasionally do the dishes, though
his daughter will help with this task.
ECF No. 7-2, PageID.59-60. (citations updated).
In addition, the ALJ did not err when he afforded less weight to the medical
opinions of some of Plaintiff’s treating physicians. A treating physician’s medical opinion is
generally entitled to great weight when evaluating a patient’s alleged disability. Buxton v. Halter,
246 F.3d 762, 773 (6th Cir. 2001). The ALJ must give controlling weight to a treating physician’s
medical opinion when the opinion “is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your
case record.” 20 C.F.R. § 404.1527(c)(2); see also Gayheart v. Comm’r of Soc. Sec., 710 F.3d
365, 376 (6th Cir. 2013); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004); Buxton,
246 F.3d at 773. When an ALJ decides to not give a treating physician’s opinion controlling
weight, the ALJ must provide “good reasons” for doing so. Gayheart, 710 F.3d at 376. The ALJ

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must ascertain the proper weight to afford a medical opinion by considering the following factors:
“the length, frequency, nature, and extent of the treatment relationship; the supportability and
consistency of the physician’s conclusions; [and] the specialization of the physician.” Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007); see also 20 C.F.R. § 404.1527(c).
However, “an exhaustive factor-by-factor analysis” is not required. See Francis v. Comm'r of Soc.
Sec., 414 Fed. App’x. 802, 804 (6th Cir. 2011).
Here, the ALJ gave a thorough, well-reasoned, and complete explanation for the
weight he afforded the medical opinions of Plaintiff’s treating physicians. First, the ALJ gave
little weight to Dr. Christopher Dehlin’s medical opinion that Plaintiff could work four hours per
day and required two days off per month due to Plaintiff’s physical limitations. The ALJ
explained:
Dr. Dehlin observed and examined the claimant over the course of
time, but his assessment is at odds with the medical evidence of
record. As to the standing/walking, imaging studies show
degenerative process of the spine, but the claimant generally walks
with a normal gait and exhibits no deficits in lower extremity
musculoskeletal or neurologic function that could contribute to such
significant standing/walking limitations (ECF No. 7-7, PageID.389400, 412-446, 448-501.) As to lifting, the shoulder specialist could
not appreciate the “popping” or instability the claimant was
reporting (ECF No. 7-8, PageID.564) and examination otherwise
generally show normal strength, bulk and tone in the muscles of
extremities; intact sensation; 2+ reflexes through absent ankle jerks
at times; and, normal coordination (ECF No. 7-7, PageID.436-446,
448-501.) Regarding the claimant’s sitting capacity, he has
generally been noted to be seated comfortably in the examination
chair (ECF No. 7-7, PageID.389-400.) In terms of the claimant’s
attention/concentration, persistence or pace, and ability to deal with
work stress, examination have produced no evidence of ongoing
cognitive deficits that would require significant limitations in these
areas (ECF No. 7-7, PageID.389-400, 448-491; ECF No. 7-8,
PageID.504-551.) The undersigned allowed for additional time off
task in response to the claimant’s partially credible subjective pain
complaints. As to Dr. Dehlin’s indication that the claimant could
only work for four hours a day, it is not in keeping with the above
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cited evidence reflecting relatively good function on examination in
a setting of possible symptom amplification and symptoms of an
undetermined etiology (ECF No. 7-8, PageID.504-551.) Finally, Dr.
Dehlin’s allowance for additional absences per month is speculative.
The record does not include frequent no shows or cancelations that
would give rise to an opinion that the claimant is not capable of
meeting his obligations.
ECF No. 7-2, PageID.60. (citations updated).
Relying on similar reasons, the ALJ gave little weight to Dr. J. Bryan Dixon’s
March 2014 opinion that Plaintiff could not return to work because he needed “significant
modifications” to accommodate his shoulder and neck pain. (ECF No. 7-2, PageID.61.) Again,
the ALJ found that Dr. Dixon’s opinion was contrary to the majority of Plaintiff’s medical records.
The ALJ also noted that the opinion was vague because it failed to identity or define the meaning
of “significant modifications.”
Next, the ALJ gave little weight to Dr. Jonathan Robertson’s medical opinion that
Plaintiff could work only two hours per day and required four days off per month because it was
also contrary to the majority of Plaintiff’s medical records. (ECF No. 7-2, PageID.61.) However,
the ALJ afforded some weight to Dr. Robertson’s opinion that Plaintiff could lift ten pounds and
occasionally lift twenty pounds, which is consistent with the ability to perform light work.
In addition, the ALJ gave some weight to pain management provider, Dr. Mansour
Milk’s medical opinion that Plaintiff should be careful with overhead lifting and avoid any
strenuous activity involving his upper extremities. (ECF No. 7-2, PageID.61-62.) The ALJ noted
that Dr. Milky “did not preclude overhead lifting, he simply instructed the claimant to be careful
with it and the limitation to light work allows for this.” (PageID.62.)
Lastly, the ALJ gave little weight to Shoulder Specialist Dr. Jason Doppelt’s
December 2012 opinion that Plaintiff could not continue working. (ECF No. 7-2, PageID.62.)

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The ALJ reasoned that Dr. Doppelt did not appear to have the same opinion after he examined
Plaintiff for a second time shortly thereafter.
In sum, this Court finds that there is substantial evidence to support 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: May 18, 2017
. /s/ Timothy P. Greeley
.
TIMOTHY P. GREELEY
UNITED STATES MAGISTRATE JUDGE

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