United States District Court, E.D. Michigan, Southern Division
L. LUDINGTON UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION CROSS-MOTIONS FOR SUMMARY
JUDGMENT (DKT. 14, 16)
STEPHANIE DAWKINS DAVIS UNITED STATES MAGISTRATE JUDGE
Proceedings in this Court
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).
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.
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).
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.
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.
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
(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).
Plaintiff's Claims of Error
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).
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).
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).
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).
Commissioner's Motion for Summary Judgment
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).
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
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).
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 ...