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Hudson v. Commissioner of Social Security

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

January 31, 2018


          Mark A. Goldsmith, United States District Judge.


          Stephanie Dawkins Davis, United States Magistrate Judge.


         A. Proceedings in this Court

         On 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).

         B. Administrative Proceedings

         Plaintiff filed her initial claim for disability insurance benefits (“DIB”) payments on October 11, 2011. (Tr. 15)[1]. The application was denied on January 31, 2012. (Id.). Plaintiff did not appeal the unfavorable determination, and it became the final decision of the Commissioner. (Id.).

         Plaintiff 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).

         For the 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 GRANTED.


         A. ALJ Findings

         Plaintiff, 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).

         The ALJ 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).

         Thereafter, 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).

         B. Plaintiff's Claims of Error

         Plaintiff 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. (Id.).

         Further, 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.

         Plaintiff 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.

         Plaintiff 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. (Id.).

         The 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 month. (Id.).

         Plaintiff 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. (Id.).

         C. Commissioner's Motion for Summary Judgment

         The 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).

         Regarding 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).

         Dr. 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).

         As to 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. Srivastava's statement.

         The 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).

         As to 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 ...

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