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Barnes v. Commissioner of Social Security

United States District Court, W.D. Michigan, Southern Division

June 21, 2017




         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) denying Plaintiffs claim for disability insurance benefits (DIB) and supplemental security income (SSI) under Titles II and XVI of the Social Security Act. Section 405(g) limits the Court to a review of the administrative record and provides that if the Commissioner's decision is supported by substantial evidence, it shall be conclusive. The Commissioner has found that Plaintiff is not disabled within the meaning of the Act.


         The scope of judicial review in a social security case is limited to determining whether the Commissioner applied the proper legal standards in making her decision and whether there exists in the record substantial evidence supporting that decision. See Brainard v. Sec 'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). The Court may not conduct a de novo review of the case, resolve evidentiary conflicts, or decide questions of credibility. See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). It is the Commissioner who is charged with finding the facts relevant to an application for disability benefits, and her findings are conclusive provided they are supported by substantial evidence. See 42 U.S.C. § 405(g).

         Substantial evidence is more than a scintilla, but less than a preponderance. See Cohen v. Sec'y of Health & Human Servs., 964 F.2d 524, 528 (6th Cir. 1992) (citations omitted). It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir. 1993). In determining the substantiality of the evidence, the Court must consider the evidence on the record as a whole and take into account whatever evidence in the record fairly detracts from its weight. See Richardson v. Sec'y of Health & Human Servs., 735 F.2d 962, 963 (6th Cir. 1984). The substantial evidence standard presupposes the existence of a zone within which the decision maker can properly rule either way, without judicial interference. See Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (citation omitted). This standard affords to the administrative decision maker considerable latitude, and indicates that a decision supported by substantial evidence will not be reversed simply because the evidence would have supported a contrary decision. See Bogle, 998 F.2d at 347; Mullen, 800 F.2d at 545.


         Plaintiff was fifty-one years of age on the date of the ALJ's decision. (PageID.57, 120, 129.) He completed high school and attended two years of college, but did not obtain a degree. (PageID.80.) Plaintiff previously was employed as a groundskeeper and as a building maintenance repairer. (PagelD.98-99.) Plaintiff applied for benefits on April 12, 2013, alleging disability beginning March 1, 2009, due to rectal bleeding and bowel trouble. (PagelD. 120-121, 129-130, 235-247.) These applications were denied on September 30, 2013, after which Plaintiff requested a hearing before an ALJ. (PagelD. 151-194.) On September 11, 2014, Plaintiff appeared with his counsel before ALJ Michael S. Condon for an administrative hearing at which both Plaintiff and a vocational expert (VE) testified. (PageID.75-102.) At the hearing, Plaintiff amended the alleged onset date to June 25, 2013, the day before his 50th birthday. (PageID.78, 257.) On October 31, 2014, the ALJ issued an unfavorable written decision that concluded Plaintiff was not disabled. (PageID.57-74.) On April 18, 2016, the Appeals Council declined to review the ALJ's decision, making it the Commissioner's final decision in the matter. (PagelD.34-40.) Plaintiff subsequently initiated this action under 42 U.S.C. § 405(g).


         The social security regulations articulate a five-step sequential process for evaluating disability. See 20 C.F.R. §§ 404.1520(a-f), 416.920(a-f).[1] If the Commissioner can make a dispositive finding at any point in the review, no further finding is required. See 20 C.F.R. §§ 404.1520(a), 416.920(a). The regulations also provide that if a claimant suffers from a nonexertional impairment as well as an exertional impairment, both are considered in determining the claimant's residual functional capacity (RFC). See 20 C.F.R. §§ 404.1545, 416.945.

         Plaintiff has the burden of proving the existence and severity of limitations caused by his impairments and proving that he is precluded from performing past relevant work through step four. Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). At step five, it is the Commissioner's burden "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.

         ALJ Condon determined that Plaintiffs claim failed at step five. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his amended alleged disability onset date. (PageID.62.) At step two, the ALJ found that Plaintiff suffered from the severe impairments of: (1) diverticulosis/diverticulitis, with history of colon perforation and surgically removed abscess; (2) hypertension; and (3) chronic anal fissure. (PageID.62.) At step three, 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 found in 20 C.F.R. Pt. 404, Subpt. P, App. 1. (PagelD.62-63.) At step four, the ALJ determined that Plaintiff retained the RFC based on all the impairments to perform:

light work as defined in 20 CFR 404.1567(b) and 416.967(b) except frequent balancing, stooping, kneeling, crouching, crawling, and climbing ramps or stairs; occasional climbing of ladders, ropes, or scaffolds; and requires the option to alternate sitting and standing, with sitting for 20 minutes then standing for 20 minutes before sitting again.

(PageID.63.) Continuing with the fourth step, the ALJ determined that Plaintiff was unable to perform any of his past relevant work. (PageID.67.) At the fifth step, the ALJ questioned the VE to determine whether a significant number of jobs exist in the economy that Plaintiff could perform given his limitations. See Richardson, 735 F.2d at 964. The VE testified that Plaintiff could perform work in the following representative jobs: assembler (1, 500 regional and 45, 000 national positions), packager (2, 500 regional and 170, 000 national positions), and officer helper (4, 500 regional and 180, 000 national positions). (PageID.99-100.) Based on this record, the ALJ found that Plaintiff was capable of making a successful adjustment to work that exists in significant numbers in the national economy. (PageID.68.)

         Accordingly, the ALJ concluded that Plaintiff was not disabled from June 26, 2013, the amended alleged disability onset date, through October 31, 2014, the date of decision. (PageID.68-69.)


         Plaintiff identifies four claims in his brief: First, that the ALJ erred in assigning only little weight to the opinion of his treating physician; second, the ALJ "played doctor" in crafting the RFC by rejecting the opinion of the treating physician; third, the ALJ violated SSR 96-8p by failing to provide a narrative discussion or account for his severe limitations in the RFC; and, fourth, that the ALJ erred by finding Plaintiffs subjective complaints to be less than fully credible. The Court will discuss the issues below.

         1. The ALJ Correctly Evaluated the Treating Physician Opinion.

         On September 3, 2014, Dr. Jean Thomas completed a Physical Residual Functional Capacity Questionnaire regarding Plaintiffs limitations. Among other things, she noted that Plaintiff was diagnosed with an anal fissure, rectal pain, and constipation. (PageID.475.) Dr. Thomas assigned him a guarded prognosis. (PageID.475.) When asked to identify the clinical findings and objective signs in support of her opinion, however, the doctor noted that Plaintiff had declined a rectal exam for personal reasons, and the doctor demurred to the records of the surgeons and specialists who had been treating Plaintiff. When asked to describe Plaintiffs treatment and response, the doctor noted that Plaintiff had undergone surgery and been prescribed topical and oral pain medication, but stated "I would direct to [the] above specialists for specifics." (PageID.475.)

         When asked whether Plaintiffs impairments were "reasonably consistent with the symptoms and functional limitations described in this evaluation" Dr. Thomas indicated that it was impossible to answer with certainty. When further asked how long Plaintiff would be off task, and to what degree Plaintiff could tolerate work stress, Dr. Thomas responded that Plaintiff could be expected to be off task twenty-five percent or more of the workday and was incapable of even low stress jobs. For both of these limitations, the doctor noted that the restrictions were "per patient." (PageID.477.)

         Dr. Thomas went on to state that Plaintiff could only sit and stand / walk each for less than two hours total in an eight-hour workday. (PageID.477.) While Plaintiff would not need to be able to shift positions at will between sitting, standing, or walking, Dr. Thomas noted that this was only because Plaintiff was comfortable only when he was lying down. Plaintiff also would not need to take unscheduled breaks during an eight-hour workday, but this was because he could not work an eight-hour workday. (PageID.477.) Dr. Thomas further noted that Plaintiff was incapable of lifting and carrying even less than ten pound weights. (PageID.477.) Plaintiff could never twist, stoop, crouch, and climb ladders or stairs. (PageID.478.)

         After summarizing Dr. Thomas' opinion, the ALJ gave it the following consideration:

[D]espite Dr. Thomas being a treating physician, numerous inconsistencies with the medical evidence of record limit the weight given to this opinion. For example, the claimant admitted in his testimony that he could lift up to 20 pounds, which is in direct contrast to the opinion of Dr. Thomas. Also, there are numerous inconsistencies between the opinion and Dr. Thomas' own treatment notes. Specifically, the vast majority of Dr. Thomas' examinations of the claimant were normal, or at most, contained only limited findings (Ex 15F).
Moreover, despite [] completing the opinion form, Dr. Thomas repeatedly stated that she was relying solely on the claimant's subjective statements in her completing of the form. Although there are many examples, just one is a handwritten comment by the doctor right next to a question about the percentage of the day that the claimant would be off task. Although the doctor checked the claimant would be off task 25 percent or more of the time, she immediately qualified this by writing, "Per patient". In fact, the overall lack of any substantive support for her statements is contained throughout the form comprising the opinion as many other responses were also qualified by Dr. Thomas with the use of such terms as, "Patient assertion" and "Per patient report." (Ex 14F). Dr. Thomas even replied to the question of whether the claimant's symptoms were "reasonably ...

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