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Nowak v. Commissioner of Social Security

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

June 29, 2017

CHRISTOPHER NOWAK, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION

          GORDON J. QUIST UNITED STATES DISTRICT JUDGE.

         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 Plaintiff's 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.

         STANDARD OF REVIEW

         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.

         PROCEDURAL POSTURE

         Plaintiff was forty-six years of age on the date of the alleged onset of disability. (PageID.71, 80.) He previously completed high school and has worked as a construction worker and as a glazer. (PageID.65, 206.) Plaintiff applied for benefits on April 23, 2013, alleging disability beginning May 10, 2012, due to a shoulder and neck injury. (PageID.71, 80, 175-186.) These applications were denied on September 11, 2013, after which time Plaintiff requested a hearing before an ALJ. (PageID.93-100, 105-106.) On May 1, 2015, Plaintiff appeared with his counsel before ALJ William G. Reamon for an administrative hearing, at which time both Plaintiff and a vocational expert (VE) testified. (PageID.46-69.) On June 18, 2015, the ALJ issued an unfavorable written decision that concluded Plaintiff was not disabled. (PageID.28-45.) On March 18, 2016, the Appeals Council declined to review the ALJ's decision, making it the Commissioner's final decision in the matter. (PageID.23-25.) Plaintiff subsequently initiated this action under 42 U.S.C. § 405(g).

         ALJ'S DECISION

         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 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 Reamon determined that Plaintiff's claim failed at step five. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his alleged disability onset date. (PageID.33.) At step two, the ALJ found that Plaintiff suffered from the severe impairments of status-post two left shoulder surgeries (rotator cuff repair and labrum injuries) and degenerative disc disease of the cervical spine. (PageID.33.) 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. (PageID.34.) At step four, the ALJ determined that Plaintiff retained the RFC based on all the impairments to perform light work as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b), with the following additional limitations: (1) occasional use of ramps and stairs; (2) no use of ladders, ropes, and scaffolds; (3) no overhead reaching and occasional reaching on the right side; (4) occasional balancing, stooping, and crouching; (5) no kneeling and no crawling; and (6) avoiding concentrated exposure to extremes of temperature, humidity, and hazards. (PageID.34.) Continuing with the fourth step, the ALJ determined that Plaintiff was unable to perform any of his past relevant work. (PageID.39.) 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: folder (52, 000 national positions), assembler of small parts (54, 000 national positions), and garment sorter (51, 000 national positions). (PageID.66-68.) 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.41.)

         Accordingly, the ALJ concluded that Plaintiff was not disabled from May 10, 2012, the alleged disability onset date, through June 18, 2015, the date of decision. (PageID.41.)

         DISCUSSION

         1.The ALJ's Evaluation of the Treating Physician Opinion.

         On October 10, 2013, Dr. Daniel Mass. completed a form report regarding Plaintiff's impairments.[2] (PageID.332-335.) Dr. Mass. reported that Plaintiff was more limited than the ALJ ultimately concluded. The ALJ afforded “reduced weight” to Dr. Mass's opinion. (PageID.38.) Plaintiff argues that he is entitled to relief on the ground that the ALJ failed to articulate good reasons for discounting the opinion of his treating physician.

         By way of background, the treating physician doctrine recognizes that medical professionals who have a long history of caring for a claimant and his maladies generally possess significant insight into his medical condition. See Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994). An ALJ must, therefore, give controlling weight to the opinion of a treating source if: (1) the opinion is “well-supported by medically acceptable clinical and laboratory diagnostic techniques” and (2) the opinion “is not inconsistent with the other substantial evidence in the case record.” Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 375-76 (6th Cir. 2013) (quoting 20 C.F.R. § 404.1527).

         Such deference is appropriate, however, only where the particular opinion “is based upon sufficient medical data.” Miller v. Sec'y of Health & Human Servs., 1991 WL 229979 at *2 (6th Cir., Nov. 7, 1991) (citing Shavers v. Sec'y of Health & Human Servs., 839 F.2d 232, 235 n.1 (6th Cir. 1987)). The ALJ may reject the opinion of a treating physician where such is unsupported by the medical record, merely states a conclusion, or is contradicted by substantial medical evidence. See Cohen, 964 F.2d at 528; Miller, 1991 WL 229979 at *2 (citing Shavers, 839 F.2d at 235 n.1); Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286-87 (6th Cir. 1994).

         If an ALJ accords less than controlling weight to a treating source's opinion, the ALJ must provide “good reasons” for doing so. Gayheart, 710 F.3d at 376. Such reasons must be “supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.” Id. This requirement “ensures that the ALJ applies the treating physician rule and permits meaningful review of the ALJ's application of the rule.” Id. (quoting Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004)). Simply stating that the physician's opinions “‘are not well-supported by any objective findings' and are ‘inconsistent with other credible evidence'” is, without more, too “ambiguous” to permit meaningful review of the ALJ's assessment. Id. at 376-77.

         Much of Dr. Mass's opinion is consistent with the ALJ's RFC determination. For example the doctor declined to offer a limitation regarding how often Plaintiff could sit, stand, or walk. He also indicated that Plaintiff would not need to change position between sitting and standing, and was capable of walking effectively. (PageID.332.) Nevertheless the doctor reported that during an eight-hour day, Plaintiff could never use his left upper extremity to lift or carry even five pound weights due to a positive cubital tunnel sign with hand weakness. (PageID.332.) Plaintiff furthermore could never use his left upper extremity to reach above his shoulder, and could also never kneel, crouch, crawl, or climb ladders, ropes, and scaffolds. (PageID.333.) The doctor also found that Plaintiff could never use his left hand to handle, finger, or feel. (PageID.333.) Similarly, Plaintiff could never use his left arm to push, pull, or operate hand controls. (PageID.334.) Finally, Dr. Mass. indicated that were he to work, Plaintiff could be expected to be absent from work more than four days per month.[3] (PageID.335.)

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

The claimant underwent an ulnar nerve transposition for cubital tunnel syndrome on the left side with lengthening of the flexor pronator mass on the left (Exhibit 10F/68). It appears that [Dr. Mass's opinion] was authored just days before this surgery. The post-surgery medical treatment is not convincing or persuasive that any of the limitations that Dr. Moss proposed last for any continuous 12-month period.

(PageID.39.) Plaintiff contends the reasons offered by the ALJ are unsupported by substantial evidence. The Court disagrees.

         As an initial matter, the Court observes that on the check-box form that Dr. Mass. completed, Dr. Mass. repeatedly failed to respond when asked for supportive medical findings, clinical notes, or test results. On the occasions when he did respond, the doctor provided only cryptic notations that Plaintiff had cubital tunnel syndrome with hand weakness, and that Plaintiff needed surgery. The Sixth Circuit has recently observed that these “rudimentary” unsupported checkmark forms with no further explanation are of limited usefulness. See Hernandez v. Comm'r of Soc. Sec., 644 F. App'x 468, 474 (6th Cir. 2016). In any ...


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