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Hill v. Commissioner of Social Securit

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

February 27, 2018

DAWN DENISE HILL, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE

          REPORT AND RECOMMENDATION CROSS-MOTIONS FOR SUMMARY JUDGMENT (DKT. 14, 16)

          STEPHANIE DAWKINS DAVIS UNITED STATES MAGISTRATE JUDGE

         I. PROCEDURAL HISTORY

         A. Proceedings in this Court

         On January 11, 2017, plaintiff Dawn Denise Hill 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 Thomas L. Ludington referred this matter to the undersigned for the purpose of reviewing the Commissioner's unfavorable decision denying plaintiff's claim for a period of disability and disability insurance benefits. (Dkt. 3). This matter is before the Court on cross-motions for summary judgment. (Dkts. 14, 16).

         B. Administrative Proceedings

         Plaintiff filed a prior application for a period of disability and disability insurance benefits and was found “not disabled” in a decision dated December 18, 2014. (Tr. 52).[1] On March 8, 2016, the Appeals Council vacated the prior decision and remanded the case back to the same Administrative Law Judge (“ALJ”) James J. Kent. (Id.). Plaintiff is alleging disability beginning on January 17, 2013. (Id.). Plaintiff appeared with counsel at a hearing on June 28, 2016. (Id.). On August 2, 2016, after considering the case on remand, ALJ Kent issued a second unfavorable decision, finding plaintiff not disabled from the alleged onset date through the date of the decision. (Id.). Plaintiff requested a review of this decision. (Tr. 44). The ALJ's decision became the final decision of the Commissioner when the Appeals Council, on December 9, 2016, denied plaintiff's request for review. (Tr. 1-5); 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, that defendant's motion for summary judgment be GRANTED, and that the findings of the Commissioner be AFFIRMED.

         II. FACTUAL BACKGROUND

         A. ALJ Findings

         Plaintiff, born September 12, 1966, was 46 years old on the alleged disability onset date. (Tr. 30). She has past relevant work in data entry, as an administrative assistant clerk, and as a bookkeeper. (Tr. 65). The ALJ applied the five-step disability analysis and found at step one that plaintiff had not engaged in substantial gainful activity since January 17, 2013, the alleged onset date. (Tr. 55). At step two, the ALJ found that plaintiff's degenerative disease of the lumbosacral spine, osteoarthritis, autoimmune hepatitis, a mixed undifferentiated connective tissue disorder, generalized dysmotility syndrome, depressive disorder, generalized anxiety disorder and attention deficit hyperactivity disorder (ADHD) were “severe” within the meaning of the second sequential step. (Tr. 55-56). However, 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. 56-57).

         Thereafter, the ALJ assessed plaintiff's residual functional capacity (“RFC”) as follows:

After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except she can lift up to 20 pounds occasionally and 10 pounds frequently. She can stand and walk for six hours and sit for six in an eight-hour workday with normal breaks. She is unable to climb ladders, ropes or scaffolds, occasionally balance, stoop, kneel, crouch, crawl, and climb stairs. She can frequently feel on the right hand. She must avoid excessive cold, humidity and vibration. She is limited to simple, routine and repetitive tasks.

(Tr. 57). At step four, the ALJ found that plaintiff was unable to perform any past relevant work. (Tr. 65). At step five, the ALJ denied plaintiff benefits because she found that there were jobs that exist in significant numbers in the national economy that plaintiff can perform. (Tr. 65-66).

         B. Plaintiff's Claims of Error

         Plaintiff has two claims of error against the ALJ. Plaintiff's first argument is that the ALJ erred in failing to give controlling weight to plaintiff's treating physician Dr. Breese. (Dkt. 14, Pl.'s Brief, at p. 6). Plaintiff notes the Treating Physician Rule that greater deference is generally given to a treating physician's opinion over non-treating physicians. (Id.). When the treating physician's opinion is not given controlling weight, the ALJ, in determining how much weight is appropriate, must consider a host of factors, including the length, frequency, nature, and extent of the treatment relationship; the supportability and consistency of the physician's conclusions; the specialization of the physician; and any other relevant factors. (Id. at p. 7) (citing Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004)). Plaintiff also points out that the ALJ must provide “good reasons” for discounting a treating physician's opinion. (Id. at p. 8).

         The ALJ discounted Dr. Breese's opinion given on an FMLA form in which the doctor noted that plaintiff would miss work two to six days per month. The ALJ rejected Dr. Breese's opinion for two reasons: (1) the ALJ noted that the FMLA form Dr. Breese filled out applied to a period of time prior to the alleged onset date, and (2) the ALJ noted that a decision by another nongovernmental or governmental agency about whether an individual is disabled based on its own rules is not binding on the Social Security Administration. (Id. at p. 9). As to the ALJ's second reason, plaintiff argues it is inapposite. The Department of Labor did not make a determination of disability. (Id.). The FMLA form is meant to have Dr. Breese's opinion of the effect of plaintiff's medical conditions, specifically, how much time plaintiff would miss from work. Plaintiff's FMLA leave immediately preceded the termination of her employment due to the same conditions on which she bases her disability claim. (Id.) (citing Miller v. Colvin, 114 F.Supp.3d 741, 769 (D.S.D. 2015) (finding FMLA form statements relevant where claimant utilized FMLA leave in the time immediately preceding employment termination)). Plaintiff points out that both vocational experts on her disability claims agreed that an individual needing to miss one day of work per week per month would not be able to work. (Id. at p. 10).

         Second, plaintiff argues that the ALJ did not properly evaluate her credibility. (Id. at p. 12). The ALJ determined that plaintiff's subjective complaints were not entirely credible. (Id.). Plaintiff argues that the ALJ did not follow the regulations when he discredited her complaints. Plaintiff points to the ALJ's statement that he found her “medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision” and states that it does not comport with the ALJ's obligations under the regulations in evaluating her credibility. (Id. at p. 15). Further, she argues that the ALJ erroneously relied on plaintiff's activities in discounting her credibility. (Id.). Although activities are one factor to consider, they should not be used as substantial evidence to discredit her subjective complaints. (Id.) (citing Acton v. Comm'r of Soc. Sec., 2014 WL 6750595, at *12 (E.D. Mich. Dec. 1, 2014). The ALJ also failed to consider plaintiff's good work record in making his determination. (Id. at p. 16). Plaintiff contends that her earnings report shows a strong work history. (Id.). Lastly, plaintiff cites St Cin v. Comm'r of Soc. Sec., 2015 WL 3660151, at *8 (W.D. Mich. June 12, 2015), for the proposition that relying on activities of daily living in discounting a claimant's credibility may be error where the activities were not inconsistent with the claimant's allegations on his or her ability to function. (Id. at p. 16-17).

         Finally, plaintiff argues that the ALJ's error in discounting Dr. Breese's opinion and plaintiff's credibility resulted in an erroneous RFC. (Id. at p. 18).

         C. Commissioner's Motion for Summary Judgment

         The Commissioner argues that substantial evidence supports the ALJ's RFC assessment. (Dkt. 16, Commissioner's Brief, at p. 9-11). The Commissioner points to examinations that showed, (1) mild musculoskeletal, neurological, and gastroenterological findings; (2) that her physical symptoms were well-controlled with treatment; (3) that she initially refused counseling or medication despite allegations of disabling anxiety; (4) that her mental conditions never required emergency care; and (5) aside from occasional notations of a depressed mood and affect, her mental status examinations showed little or no abnormalities. (Id. at p. 9).

         The Commissioner's response to plaintiff's treating physician argument is twofold: First, substantial evidence supports the ALJ's weight assignment; and second, even if the ALJ erred, any error is harmless because the record supports the determination that plaintiff's impairments would not cause her to miss two to six days of work per month. According to the Commissioner, the ALJ correctly assigned Dr. Breese's opinion little weight because it predates the relevant period and was prepared to support plaintiff's application for time off work under the FMLA, which is not based on the Commissioner's disability standards. (Id. at p. 11) (citing Davis v. Comm'r of Soc. Sec., at *9 (E.D. Mich. July 29, 2016) and 20 C.F.R. § 404.1504). The Commissioner points out that at the time of her FMLA application, plaintiff presented with right shoulder pain, liver disease, and anxiety. (Id. at p. 12) (citing Tr. 426). However, in her disability application, plaintiff claimed she could not work due to the following impairments: depression, anxiety, cirrhosis, Raynaud's syndrome, autoimmune hepatitis, connective tissue disease, pruritus, osteoarthritis, polyarthralgia, and piriformis syndrome (sciatica). (Id.) (Tr. 330). Although Dr. Breese's opinion listed many of the diagnoses cited in plaintiff's disability application, her opinion focused on plaintiff's shoulder surgery and anxiety, both for which plaintiff had experienced improvement. (Id. at p. 15). Therefore, the conditions that prompted the FMLA application are not entirely the same as those in her disability application.

         Further, the Commissioner argues that there is nothing in the record or in Dr. Breese's opinion or treatment notes supporting her opinion that plaintiff would miss two to six days of work per month due to unspecified “flare-ups.” (Id. at p. 12-13). When Dr. Breese examined her, she was in no apparent distress, her right shoulder had normal range of motion, her extremities appeared normal, she had no neurological deficits, and was diagnosed with improved shoulder pain. (Id. at p. 12) (Tr. 427). Dr. Breese did not explain why plaintiff's shoulder surgery, autoimmune hepatitis, persistent hand pain, Raynaud's disease, primary biliary cirrhosis, anxiety, and polyarthralgia are disabling. (Id. at p. 13). Plaintiff was able to work full time until January 2013 despite active diagnoses of Raynaud's syndrome, cirrhosis, osteoarthritis, sciatica (with Piriformis syndrome), autoimmune hepatitis, hypokalemia, pruritis, and inflammatory bowel disease, and status post shoulder surgery. (Id.) (Tr. 379, 382, 384, 388). Further, the Commissioner argues that treatment records from July 2012 to January 2013 do not support Dr. Breese's prediction that plaintiff's conditions would require significant absences from work. (Id. at p. 13-15).

         The Commissioner contends that the record supports the ALJ's RFC assessment, while simultaneously undercutting Dr. Breese's opinion that plaintiff would frequently miss work. (Id. at p. 15). Even if the Court found that the ALJ did not provide “good reasons” for discounting Dr. Breese's opinion, remand is not warranted where the ALJ has met the procedural goals of 20 C.F.R. § 404.1527 “by indirectly attacking the supportability of the treating physician's opinion or its consistency with other evidence in the record.” (Id. at p. 16). Here, the ALJ indirectly attacked Dr. Breese's opinion that plaintiff's symptoms would cause her to miss work when the ALJ ...


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