United States District Court, E.D. Michigan, Southern Division
A. Goldsmith, United States District Judge.
REPORT AND RECOMMENDATION CROSS-MOTIONS FOR SUMMARY
JUDGMENT (DKT. 12, 13)
Stephanie Dawkins Davis, United States Magistrate Judge.
Proceedings in this Court
August 17, 2016, plaintiff Crystal Hudson filed the instant
suit. (Dkt. 1). Pursuant to 28 U.S.C. § 636(b)(1)(B) and
Local Rule 72.1(b)(3), District Judge Mark A. Goldsmith
referred this matter to the undersigned for the purpose of
reviewing the Commissioner's partially favorable decision
denying plaintiff's claim for a period of disability,
disability insurance benefits, and supplemental security
income benefits prior to becoming disabled and granting
supplemental security income since the date she became
disabled. (Dkt. 3). This matter is before the Court on
cross-motions for summary judgment. (Dkt. 12, 13).
filed her initial claim for disability insurance benefits
(“DIB”) payments on October 11, 2011. (Tr.
The application was denied on January 31, 2012.
(Id.). Plaintiff did not appeal the unfavorable
determination, and it became the final decision of the
filed the instant claim for a period of disability and DIB
under Title II and for supplemental security income
(“SSI”) under Title XVI on May 23, 2013.
(Id.). The claims were initially denied on September
6, 2013. Plaintiff requested a hearing and on January 6,
2015, plaintiff appeared with counsel before Administrative
Law Judge (“ALJ”) Kevin W. Fallis, who considered
the case de novo. (Tr. 16). In a decision dated
March 23, 2015, the ALJ found that, as to the application for
period of disability and DIB, plaintiff was not disabled.
(Tr. 30). As to the application for SSI, the ALJ found that
plaintiff has been disabled since December 8, 2014.
(Id.). Plaintiff requested a review of this
decision. (Tr. 9-10). The ALJ's decision became the final
decision of the Commissioner when the Appeals Council, on
July 16, 2016, denied plaintiff's request for review.
(Tr. 1); Wilson v. Comm'r of Soc. Sec., 378 F.3d
541, 543-44 (6th Cir. 2004).
reasons set forth below, the undersigned
RECOMMENDS that plaintiff's motion for
summary judgment be DENIED, and that
defendant's motion for summary judgment be
born in 1959, was an individual closely approaching advanced
age prior to the established disability onset date; and on
December 8, 2014 plaintiff's age category changed to an
individual of advanced age. (Tr. 27). The relevant period of
eligibility for plaintiff's Title II claim is from
February 1, 2012 (the day after the prior determination,
which is the earliest possible onset date) to September 30,
2012 (plaintiff's date last insured). (Tr. 15).
Plaintiff's period of eligibility under Title XVI is from
May 23, 2013 (the protective filing date) through the
present. (Tr. 15).
applied the five-step disability analysis and found at step
one that plaintiff had not engaged in substantial gainful
activity since the earliest possible onset date of
disability, February 1, 2012. (Tr. 18). At step two, the ALJ
found that plaintiff's status post left tibial fracture
and arthroscopic surgery with residual pain and weakness,
osteopenia, osteoarthritis, disc herniation of the cervical
spine, obesity, carpal tunnel syndrome, fibromyalgia,
depressive disorder, anxiety disorder, and substance use
disorder (alcoholism) were “severe” within the
meaning of the second sequential step. (Id.). The
ALJ found that some of the impairments-carpal tunnel
syndrome, depressive disorder, anxiety disorder, and
substance use disorder-were not established by objective
medical evidence prior to the date last insured. (Tr. 18). At
step three, the ALJ found no evidence that plaintiff's
impairments singly or in combination met or medically equaled
one of the listings in the regulations. (Tr. 19).
the ALJ assessed plaintiff's residual functional capacity
(“RFC”) as follows:
After careful consideration of the entire record, the
undersigned finds that since February 1, 2012, the claimant
has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b) except she can
only occasionally perform pushing or pulling. She can only
occasionally operate foot controls. The claimant can only
occasionally perform overhead reaching, and only frequently
perform handling of objects and fingering activities
bilaterally. She can never climb ladders, ropes, or
scaffolds, and can only occasionally climb ramps or stairs,
balance, stoop, kneel, crouch, and crawl. The claimant is
limited to jobs that can be performed while using a handheld
assistive device that is required for uneven terrain or
prolonged ambulation. She must avoid all exposure to
excessive vibration and unprotected heights. She must avoid
concentrated use of hazardous moving machinery. Her work is
limited to simple, routine, and repetitive tasks performed in
a work environment free of fast-paced production
requirements, involving only simple work-related decisions
and routine workplace changes. She can only have occasional
and superficial interaction with co-workers and the public.
(Tr. 21-2). At step four, the ALJ found that since February
1, 2012, plaintiff was unable to perform any past relevant
work. (Tr. 27). At step five, the ALJ denied plaintiff
disability insurance benefits because he found that, prior to
December 8, 2014, there were jobs that existed in significant
numbers in the national economy that plaintiff could have
performed. (Tr. 28). However, the ALJ granted plaintiff
supplement security income because he found that beginning
December 8, 2014, there were no jobs that exist in
significant numbers in the national economy that plaintiff
could perform. (Tr. 29).
Plaintiff's Claims of Error
claims error in the ALJ's failure to give her treating
physicians' opinions controlling weight. (Dkt. 12, Pg ID
724). She claims that Ms. Brittney Westfall's opinions
should have be given controlling weight rather than
non-examining, non-treating physician Dr. Blaine Pinaire,
Ph.D., because Dr. Pinaire's opinions are inconsistent
with Ms. Westfall's opinions. (Id.). Ms.
Westfall stated that plaintiff is unable to work due to her
mental impairments, and given the treating relationship this
opinion should have been given controlling weight.
plaintiff claims the ALJ erred in finding that Westfall's
opinion was inconsistent with her assessment. (Id.
at Pg ID 725). Westfall gave plaintiff a GAF score of 51-55
and the ALJ noted that Westfall also found that plaintiff had
marked loss in certain areas such as capacity in memory and
understanding. However, Westfall stated that plaintiff had
moderate loss in only some of the areas, rather than marked
loss in all areas as the ALJ stated. (Id.). The ALJ
gave significant weight to the GAF scores (50-60) in the
record from different therapists. (Id.). However,
plaintiff states that GAF scores are no longer used and
should not be relied upon.
also states that the ALJ gave little weight to a treating
physician, indicating that the statement by the doctor is
non-specific. (Id. at Pg ID 727). Plaintiff does not
name the physician. Plaintiff contends that the evidence is
clear that plaintiff's arthritis and leg fracture from an
accident prevent her from working full time, and so the
opinion is not non-specific. (Id.). Plaintiff asks
that her treating physicians be given greater weight.
also takes issue with the ALJ's statements on her
alcoholic behavior, even though he stated that substance use
did not impact his decision. (Id. at Pg ID 726). She
contends that the record does not show any treatment for
alcoholism and she was not diagnosed an alcoholic.
rest of plaintiff's brief is devoted to what appears to
be an argument that the RFC is not supported by substantial
evidence. Since her car accident on June 18, 2011, plaintiff
has had neck and shoulder pain, arthritis, and suffers from
fatigue. (Id.). She has not worked since the
accident and now also suffers from hip pain. She cannot walk
for long periods of time, she cannot complete household
chores without problems, and does not do any chores outside.
(Id.). She must now use a cane to walk or else she
will fall. (Id.). Her medication side effects cause
her to be exhausted, nauseated, and have headaches.
(Id. at Pg ID 726-27). Medication and steroidal
injections do not reduce her pain. (Id. at Pg ID
727). According to plaintiff, the ALJ's decision that she
could perform light work is erroneous because the evidence
supports a finding of sedentary work, not light work.
Plaintiff testified that she cannot lift a gallon of milk,
precluding a finding that she could perform light work.
(Id.). A finding of sedentary work would have
directed a finding of “disabled” because she was
a person approaching advanced age under the
Medical-Vocational Guidelines. (Id.). Further, she
testified that she is always tired and she would likely be
off task 20% of the day and miss work more than three times a
also points to her grip strength test from Dr. Asit Ray which
found that her right side grip strength is 45 pounds and her
left side is 40 pounds, precluding her from performing light
work. (Id. at Pg ID 728). The three jobs the
vocational expert produced: bench assembly, packer, and
inspector, all include gripping in the job, but with poor
grip strength she would not be able to perform those jobs.
Commissioner's Motion for Summary Judgment
Commissioner argues that the ALJ properly gave Ms.
Westfall's opinions no weight. (Dkt. 13, at p. 7).
According to the Commissioner, the record does not contain
the opinion of a treating physician as to her mental
impairments according to 20 C.F.R. § 404.1502 and 20
C.F.R. § 404.1513(a)(1)-(5). (Id.). The only
acceptable medical source addressing plaintiff's mental
impairments is Dr. Pinaire. (Id. at p. 8).
Plaintiff's therapist, Brittney Westfall, LLMSW, is not
an acceptable medical source because “[L]imited License
Master Social Workers are not ‘acceptable medical
sources' under the Regulations.” (Id.
citing Pinkett v. Comm'r of Soc. Sec., No.
15-cv-12226, 2016 WL 5369611, at *8 (E.D. Mich. Sept. 26,
2016)). Thus, the ALJ was not required to give Ms.
Westfall's opinion any weight at all, but rather was
permitted simply to consider the opinion. (Id.). Not
only is Ms. Westfall's opinion not an acceptable medical
source, the ALJ provided multiple additional reasons for
discounting her statements. (Id. at p. 9). Ms.
Westfall's one-paragraph letter stating that plaintiff
was unable to work due to her mental health symptoms was a
“bald conclusion” and did not provide a
function-by-function analysis. (Id. at p. 9-10).
Further, Ms. Westfall's “Medical Source
Statement” was discounted because it was internally
inconsistent and inconsistent with her treatment notes.
(Id. at p. 10). For example, the ALJ found that Ms.
Westfall's check offs for marked limitations were
inconsistent with her notation that plaintiff's GAF
scores ranged from 51-55 over the previous year, when a GAF
score of 51-60 indicates only moderate symptoms or moderate
difficulty in social, occupational, or school functioning.
(Id. at p. 11; Tr. 25). Further, Ms. Westfall's
opinion was inconsistent with plaintiff's treatment
notes. Plaintiff at times presented to her doctors with a
normal mood, affect, behavior, judgment, and thought
processes; and the ALJ noted that at other times she
presented a depressed mood, anxiety, insomnia, mood swings,
substance abuse, impaired judgment, and feelings of
hopelessness. (Id. at 11-2; Tr. 25, 453-60).
Additionally, the ALJ noted that Ms. Westfall's
observation that Plaintiff could handle her own finances was
inconsistent with her statements that Plaintiff suffered from
marked limitations in concentration, memory, understanding,
and the ability to complete tasks. (Id. at p. 12).
plaintiff's argument that the ALJ should not have given
her GAF scores significant weight, the Commissioner argues
that the ALJ did not rely on her GAF scores to determine she
was not disabled. (Id. at p. 13). Instead, the ALJ
considered the GAF scores as one piece of evidence that was
inconsistent with Ms. Westfall's statements.
(Id.; Tr. 24-25).
Pinaire provided the only acceptable medical source opinion
on plaintiff's mental impairments. (Id. at p.
14). Because Dr. Pinaire's opinion was consistent with
the medical record and reflected “the degree of
psychological limitation that the claimant experienced during
the relevant periods of eligibility, ” the ALJ accorded
the opinion significant weight. (Id.; Tr. 26). In
particular, Dr. Pinaire opined that plaintiff could
understand, remember, and carry out simple instructions, make
judgments commensurate with unskilled work, and perform
simple 1-2 step tasks on a regular and continuing basis.
(Dkt. 13, at p. 14; Tr. 100). The ALJ assessed a mental RFC
for plaintiff that was consistent with Dr. Pinaire's
opinion. (Dkt. 13, at p. 14; Tr. 21-22, 26, 100).
plaintiff's physical impairments, the Commissioner
contends that the ALJ's assessment of the medical
evidence is supported by substantial evidence. (Dkt. 13, at
p. 14). The Commissioner points out that plaintiff claims
that the ALJ erred because he gave little weight to her
treating physician, yet fails to name the physician to whom
she is referring. Instead, she points to Exhibit 6F which
contains treatment notes from two physicians: Janet Robinson,
M.D. and Ajay Srivastava, M.D. (Id. at p. 15; Tr.
411-15). Dr. Srivastava wrote that plaintiff “has pain
that is enough to stop her from working to her full
capacity.” (Dkt. 13, at p. 15; Tr. 415). The ALJ gave
this statement “little weight” because it was
“too generic and nonspecific to be of real use in
making a function-by-function analysis.” (Dkt. 13, at
p. 15; Tr. 24). The Commissioner argues that Dr.
Srivastava's statement does not meet the standard
requiring that a doctor's statement “reflect
judgments about the nature and severity of your
impairment(s), including your symptoms, diagnosis and
prognosis, what you can still do despite impairment(s), and
your physical or mental restrictions.” (Dkt. 13, at p.
15; 20 C.F.R. § 404.1527(a)(2)). Further, this statement
concerns a matter reserved for the Commissioner and thus was
due no special significance. (Dkt. 13 at p. 16; 20 C.F.R.
§ 404.1527(d)(3)). Additionally, Dr. Srivastava's
treatment note indicates that he would not keep plaintiff on
restrictions anymore and that he wanted her to go back to
work. (Dkt. 13, at p. 16; Tr. 415). When plaintiff saw Dr.
Srivastava again a year later he indicated that plaintiff
would be “treated conservatively.” (Dkt. 13, at
p. 16; Tr. 421-22). Thus, the ALJ properly evaluated Dr.
Commissioner argues that plaintiff's assertion that she
has reduced grip strength and thus cannot perform light work
is incorrect. Dr. Asit Ray found that plaintiff had reduced
grip strength, numbness, and tingling in her right hand, but
did not indicate that her grip strength scores indicated
“poor grip strength.” (Dkt. 13, at p. 17).
Further, although Dr. Ray noted a positive Phalen's
(carpal tunnel) test on her right hand, he also noted that
she could make a full fist with complete closure, showed no
atrophy of the intrinsic hand muscles, and could open a jar
with both hands. (Id.; Tr. 504). Dr. Ray did not
assess any functional limitations, but rather suggested that
plaintiff retained a functional capacity requiring no
restrictions. (Id.; Tr. 505). The ALJ properly
assigned Dr. Ray's opinion little weight and assessed an
RFC that was more limited than Dr. Ray's report. (Dkt.
13, at p. 17).
plaintiff's argument that the RFC is not supported by
substantial evidence, the Commissioner first points out that
plaintiff did not challenge the ALJ's assessment of her
subjective complaints, thus rendering that argument waived.
(Id. at p. 19). According to the Commissioner, the
ALJ properly discounted plaintiff's subjective
complaints. The ALJ found her complaints were undermined by
her ability to engage in daily activities. (Id. at
p. 20). The ALJ noted that her symptoms were described as
mild, and they ...