United States District Court, E.D. Michigan, Southern Division
JULIE A. BARNES, Plaintiff
COMMISSIONER OF SOCIAL SECURITY, Defendant.
D. BORMAN UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION CROSS-MOTIONS FOR SUMMARY
JUDGMENT (DKT. 16, 18)
STEPHANIE DAWKINS DAVIS UNITED STATES MAGISTRATE JUDGE
Proceedings in this Court
October 19, 2016, plaintiff filed the instant suit seeking
judicial review of the Commissioner's unfavorable
decision disallowing benefits. (Dkt. 1). This case was
referred to the undersigned magistrate for all pre-trial
purposes. (Dkt. 4). This matter is before the Court on
cross-motions for summary judgment. (Dkt. 16, 18).
filed the instant claims for a period of disability and
disability insurance benefits on November 13, 2013, alleging
disability beginning August 1, 2013. (Tr. 11). The claim was
initially disapproved by the Commissioner on March, 2014.
(Tr. 11). Plaintiff requested a hearing, and on May 21, 2015,
she appeared and testified, with the assistance of her
attorney, before Administrative Law Judge (ALJ) Melody Paige,
who considered the case de novo. (Tr. 22-53). In a
decision dated August 24, 2015, the ALJ found that plaintiff
was not disabled. (Tr. 8-17). Plaintiff requested a review of
this decision (Tr. 7), and the ALJ's decision became the
final decision of the Commissioner when the Appeals Council
denied plaintiff's request for review on September 6,
2016, 2016. (Tr. 1-6); 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.
was born in 1964 and was 52 years old on the date last
insured, March 31, 2017. (Tr. 144). Plaintiff had work
history as executive assistant, human resources generalist, a
legal secretary, and a purchasing assistant. (Tr. 157).
laintiff stopped working on August 23, 2013 because of her
conditions. (Tr. 147). In a decision dated August 24, 2015,
the ALJ applied the five-step disability analysis to
plaintiff's claim and found at step one that plaintiff
had not engaged in substantial gainful activity since the
amended alleged onset date through the last date insured.
(Tr. 13). The ALJ found that plaintiff had the following
medically determinable impairments: IBS, history of hernia,
and anxiety/depression. (Tr. 13). However, at step two, the
ALJ found that plaintiff's medically determinable
impairments were not severe impairments. Id. Thus,
the ALJ ended her analysis at step two and concluded that
plaintiff has not been under a disability from the amended
alleged onset date through the last date insured. (Tr.
15-17). Plaintiff requested a review of this decision, and
the ALJ's decision became the final decision of the
Commissioner when the Appeals Council denied plaintiff's
request for review on September 6, 2016. (Tr. 1-7);
Wilson v. Comm'r of Soc. Sec., 378 F.3d 541,
543-44 (6th Cir. 2004).
Plaintiff's Claims of Error
to plaintiff, the ALJ erred by failing to consider the
objective medical evidence and plaintiff's subjective
complaints in his step two analysis. Specifically, plaintiff
contends that when the ALJ failed to find that
plaintiff's IBS; history of hernia; and
anxiety/depression were severe impairments in her step two
analysis. Plaintiff asserts that there is significant
evidence showing that her IBS is a severe impairment,
including 28 emergency room visits, 15 of which occurred
after the alleged onset date of August 1, 2013. In addition
to the multiple ER visits, plaintiff says she has
consistently treated with a primary care physician, Dr.
Russell Chavey. Dr. Chavey has noted the plaintiff's
diagnosis of IBS. (Tr. 490, 493, 495, 499). Further, Dr.
Chavey opined that plaintiff has severe irritable bowel
disease and assessed her prognosis as guarded. (Tr. 504).
Moreover, physical examinations throughout the record note
abdominal and epigastric tenderness. (Tr. 651, 829, 839,
874). Dr. Chavey completed a Residual Functional Capacity
Questionnaire on December 26, 2013 specifically indicating
multiple limitations due to the plaintiff's severe
irritable bowel disease. (Tr. 504-507). Plaintiff argues that
it makes little sense that her treating doctor would fill out
an RFC form indicating specific limitations if she did not
have a severe impairment.
also takes issue with the ALJ's conclusion that there is
no evidence of medical treatment at the alleged onset date
thus indicating no worsening or changing in the
Plaintiff's condition. (Tr. 15). Plaintiff points out
that this conclusion is not supported by the evidence because
there were multiple ER visits after the alleged onset date
and a clear deterioration of condition which is evidenced by
the increase in ER visits as well as her doctor's
opinions of disability. Furthermore, the new hire, quarter
wage, and unemployment query noted a decrease from $12,
214.00 in the 2nd quarter of 2013 (April - June) to only $7,
319.00 in the 3rd quarter of 2013 (July - September). (Tr.
140). Plaintiff suggests that this drop in wages indicates
that the plaintiff stopped working sometime in the 3rd
quarter of 2013, which is in line with the alleged onset
date. Also, plaintiff had three ER visits in September 2013,
which also suggests a deterioration of condition around the
time of the alleged onset date. Finally, the certified
earnings record notes no earnings in 2014 or 2015, thus
adducing more evidence that plaintiff was under a disability.
(Tr. 143). Therefore, plaintiff contends that ample medical
evidence combined with a decrease then cessation of earnings
supports a finding that plaintiff's IBS along with her
depression and anxiety are severe impairments.
also points out that the ALJ at one point in her decision
says she does not have any severe impairments, (Tr. 13) then
on the next page of the decision states “[t]he
above-listed impairments more than minimally affect the
claimant's ability to perform work activities on a
regular and sustained basis, and are therefore severe.”
The ALJ's decision also states that plaintiff's
depression/anxiety are medically determinable impairments
(Tr. 13), but later states that there “is not a
medically determinable mental impairment.” (Tr. 16).
Plaintiff argues that the above excerpts render the ALJ's
decision internally inconsistent, and thus not supported by
plaintiff asserts that the ALJ ignores any evidence that does
not align with her finding of no disability, particularly
with regard to medical opinion evidence. The ALJ may not
substitute his own medical judgment for that of the treating
physician where the opinion of the treating physician is
supported by the medical evidence. McCain v. Dir., Office
of Workers Comp. Programs, 58 Fed.Appx. 184, 193 (6th
Cir. 2003). According to plaintiff, ample medical evidence
supports her treating physician's opinions, which are
also supported by plaintiff's subjective complaints. Yet,
the ALJ discounted all medical opinions and made an erroneous
plaintiff contends that the ALJ's decision to reject Dr.
Chavey's treating physician opinion is not supported by
substantial evidence, and the ALJ failed to comply with the
procedural aspect of the treating physician rule. (Tr. 16).
Plaintiff complains that the ALJ dismissed Dr. Chavey's
assessment in a single conclusory statement declaring that
the assessment is not supported by treatment records and the
Plaintiff rarely presented for treatment. (Tr. 16). Plaintiff
says that such an explanation for assigning “little
weight” cannot constitute the “good
reasons” contemplated by SSR 96-2p, averring further
that it ignores the substantial amount of evidence to the
contrary. Plaintiff characterizes the record as full of
treatment records from Dr. Chavey and multiple ER visits.
Given the nature of plaintiff's IBS, she says it follows
that she would have more ER visits than regular doctor
visits. Furthermore, she states that the ALJ does not
properly consider the extent to which Dr. Chavey was fully
involved in the longitudinal picture of plaintiff's care.
Specifically, Dr. Chavey noted that plaintiff's severe
IBS attacks would result in hospital stays 4 - 6 times per
year, and that these episodes last 1 - 5 days requiring IV
hydration and observation. (Tr. 504). She points out that
this is in line with plaintiff's treatment record. Since
Dr. Chavey is privy to plaintiff's condition and in a
position to render an opinion given his history of treating
plaintiff and accurate portrayal of the severity, the
ALJ's decision to give “little weight” is not
supported by substantial evidence and was made without giving
plaintiff alleges that the ALJ made an improper credibility
assessment. According to plaintiff, the ALJ uses boilerplate
credibility language stating: “the claimant's
testimony … the intensity of the claimant's
symptoms and their alleged impact on her functioning is not
consistent with the totality of the evidence.”
Plaintiff cites the Seventh Circuit in Bjornson v.
Astrue, 671 F.3d 640, 645 (7th Cir. 2012), which
provides that this type of language is “essentially
meaningless.” Plaintiff urges the Court to find that
the ALJ's language is likewise meaningless since it does
not specifically state which parts of plaintiff's
testimony she finds credible and which are not credible.
Furthermore, the ALJ's conclusion that plaintiff's
drug seeking behavior calls her credibility into question
relies on an assumption that is wrong and irrelevant.
Although there are some instances in the record of drug
seeking behavior, plaintiff says that this behavior can most
likely be attributed to the severe pain she was in and the
fact that the medication Dilaudid was the only medication
that provided some relief. Plaintiff testified at the hearing
that an IV of Dilaudid is the only thing that helps stop
vomiting. (Tr. 35). Plaintiff also points out that there is
no evidence of positive drug tests in the record, nor is
there any evidence that plaintiff uses recreational drugs.
Finally, the ALJ does not specifically identify any testimony
of plaintiff or make any personal observations regarding
credibility. . Thus, according to plaintiff, the ALJ has made
an insufficient and incorrect credibility assessment,
particularly in light of the de minimis standard
required in a Step Two analysis.
The Commissioner's Motion for Summary Judgment
Commissioner first argues that plaintiff utilizes the wrong
standard of review in challenging the ALJ's step two
analysis in that plaintiff focuses on whether there is
evidence to support the her contention that her impairment is
severe, rather than on whether there is substantial evidence
in the record to support the ALJ's conclusion that it is
not. See Potter v. Comm'r of Soc. Sec., 223
Fed.Appx. 458, 464, (6th Cir. 2007) (“The question on
review is not whether substantial evidence, or even the
weight of the evidence, supports [Plaintiff's] position.
Rather, this court is only asked to decide if the record
includes substantial evidence to support the
Commissioner's determination.”). The Commissioner
acknowledges that Step two is a “de minimis
hurdle” Higgs v. Bowen, 880 F.2d 860, 862 (6th
Cir. 1988), used to “screen out ‘totally
groundless claims.'” Griffeth v. Comm'r of
Soc. Sec., 217 Fed.Appx. 425, 428 (6th Cir. 2007)
(quoting Farris v. Sec'y of Health & Human
Servs., 773 F.2d 85, 89 (6th Cir. 1985)). At that point
in the sequential evaluation, plaintiff was required to
demonstrate that she experienced a severe, medically
determinable impairment that could be expected to result in
death, or that lasted-or could be expected to last- for a
continuous period of at least twelve months. 20 C.F.R. §
404.1520(a)(4)(ii); 20 C.F.R. § 404.1509; Foster v.
Sec'y of Health & Human Servs., 1990 WL 41835,
at *2 899 F.2d 1221 (6th Cir. Apr. 11, 1990) (“It was
[the claimant's] burden to show the severity of his
impairments.”). “[A]n impairment or combination
of impairments is considered ‘severe' if it
significantly limits [the claimant's] physical or mental
abilities to do basic work activities.” Social Security
Ruling (SSR) 96-3p available at 1996 WL 374181, at *1.
“An impairment or combination of impairments is not
severe if it does not significantly limit [the
claimant's] physical or mental ability to do basic work
activities.” 20 C.F.R. § 404.1521(a) (effective to
March 26, 2017). Or, in other words, “[a]n impairment
or combination of impairments is found ‘not
severe'…when medical evidence establishes only a
slight abnormality or a combination of slight abnormalities
which would have no more than a minimal effect on an
individual's ability to work…” SSR 85-28
available at 1985 WL 56856, at *3.
to the Commissioner, the medical record consists almost
entirely of emergency room visits. Plaintiff's theory is
that the ALJ should have determined that her irritable bowel
syndrome was disabling or, at the very least, that it was a
severe impairment because she repeatedly sought out emergency
room treatment for abdominal pain. Yet, as one doctor put it,
“[t]here [was] no evidence to suggest that [Plaintiff]
[had] true abdominal pain.” (Tr. 962); (Tr. 800)
(“[Plaintiff] presented for recurrent abdominal pain.
She has had several visits to the EC for this in the past. On
all of these visits, there have been no acute emergencies
found or explanations for her chronic abdominal
pain.”). Instead, according to the Commissioner, the
record strongly suggests that the driving force behind her
multiple emergency room visits was her desire to obtain
Dilaudid. The Commissioner points to evidence showing that
she went so far as to “literally beg for [it] by
name.” (Tr. 800); (Tr. 714) (“She is [a] Dilaudid
seeker… She kept asking for Dilaudid even though it
was explained to her multiple times that it is not indicated
in her condition… [O]nce this decision was made she
came up to the doctor's room and demanded
discharge”); (Tr. 962) (“history of drug-seeking
behavior”); (Tr. 982) (“drug seeking
behavior”); (Tr. 1072) (“drug-seeking behavior
for the past few years”); (Tr. 1076) (“I am
concerned that [Plaintiff] is here for narcotics
specifically. The fact that she is continually asking for
Dilaudid specifically is a concern… After having this
conversation, the [Plaintiff] simply asked to be discharged.
Again, I would be highly cautious prescribing her any
narcotics unless there is an explicit reason to do
so.”); (Tr. 1355) (“drug-seeking
Commissioner also points out that her examinations and test
results were largely unremarkable. Occasionally when visiting
the emergency room, plaintiff would appear to be
uncomfortable (Tr. 673, 798, 861, 890) or have some abdominal
tenderness (Tr. 464, 468, 829, 861, 973, 1022, 1057) but, in
the vast majority of instances, she was in no distress (Tr.
463, 468, 488, 691, 705, 755, 779, 829, 846, 874, 927, 931,
970, 973, 983, 1005, 1034, 1052, 1074) and received normal
examinations of her abdomen. (Tr. 238, 488, 673, 691, 705,
724, 756, 768, 779, 781, 798, 839, 846, 880, 884, 890, 927,
931, 960, 1009, 1034, 1052, 1061, 1074, 1333, 1336, 1354).
She received a battery of largely normal abdominal imaging,
(Tr. 212, 214, 829, 863, 866, 892), biopsies (Tr. 671, 1337),
physical examinations (Tr. 234, 468, 673, 691, 705, 723-724,
755-756, 768, 779, 798, 829, 839, 846, 853, 861, 879-880,
884, 890, 927, 931-932, 1008-1009, 1021-1022, 1028, 1052,
1061, 1074, 1333, 1336, 1354), acute abdominal series (Tr.
484-485, 831, 995, 1042, 1350), colonoscopies (Tr. 860,
1336), gastric emptying scans (Tr. 953-954), laboratory
studies (Tr. 726, 880, 962, 1010), and
esophagogastroduodenoscopies (Tr. 227, 466, 689, 860), (Tr.
1072) (“extensive unremarkable workup”). Her
latest treatment note from March 2015 states that she was
only getting intermittent flares of irritable bowel syndrome,
and that she was doing well in between those flares. (Tr.
1333). There is also no record of her seeking any treatment
in the five months between that visit and the date of the
ALJ's decision. Hamlin v. Comm'r of Soc.
Sec., 1996 WL 729287, at * (6th Cir. Dec. 17, 1996)
(“gaps in a history of medical treatment are likely to
suggest that the claimant was not receiving treatment during
the gaps and was not disabled then.”). Thus, based on
the evidence set forth above showing normal objective
evidence; her drug-seeking behavior; and the lack of
treatment with a primary care physician or gastrointestinal
specialist (Tr. 15), the ALJ found that plaintiff's
irritable bowel syndrome was not a severe impairment.
Commissioner also maintains that the alleged inconsistencies
in the ALJ's decision were typographical errors that were
harmless. The Commissioner contends that the ALJ accidentally
stated in a single boilerplate sentence that plaintiff had
severe impairments (Tr. 14), but since the ALJ spent the next
three-plus pages explaining why plaintiff did not have any
severe impairments (Tr. 14-17), inclusion of that language
was a clear typographical error and is harmless. Lund v.
Colvin, 2014 WL 1153508, at *4 n. 3 (D. Minn. Mar. 21,
2014) (collecting cases showing that typographical errors are
harmless). The Commissioner posits that the same is true of
the ALJ's statement about plaintiff's depression. The
ALJ initially stated, again, in one boilerplate sentence,
that it was a medically determinable impairment. (Tr. 13).
She then spent three full paragraphs explaining the medical
determinability standard and finding that plaintiff's
depression was not a medically determinable impairment. (Tr.
16). According to the Commissioner, the context makes it
clear that the ALJ meant to find that Plaintiff's
depression was not medically determinable, and her earlier
statement to the contrary was “merely a scrivener's
error.” McAllister v. Colvin, 2017 WL 1190952,
at *2 (E.D. Mich. Mar. 31, 2017).
Commissioner also contends that the ALJ's weighing of the
medical opinion evidence is supported by substantial
evidence. In December 2013, Dr. Chavey filled out an
“irritable bowel syndrome residual functional capacity
questionnaire, ” and found that plaintiff was more
limited than ultimately recognized by the ALJ. (Tr. 504-507).
The Commissioner acknowledges that, prior to writing the
opinion, Dr. Chavey had met with plaintiff enough times to
have an “ongoing treatment relationship” (Tr.
489, 492, 495, 498) that qualifies him as a treating source.
Nevertheless, the ALJ rejected Dr. Chavey's opinion
because plaintiff “rarely presented to [his office] for
any treatment; thus, the assessment is not supported by
treatment records and rendered less persuasive.” (Tr.
16); Davis v. Comm'r of Soc. Sec., 2016 WL
4445774, at *7 (E.D. Mich. July 29, 2016), R&R adopted,
2016 WL 4429641 (E.D. Mich. Aug. 22, 2016) (permitting ALJs
to discount medical opinion when they are “either
unsupported or inconsistent”). The Commissioner asserts
that, if anything, the ALJ's description of Dr.
Chavey's opinion was too charitable since his opinion was
not only unsupported by his notes, but also outright
contradicted by those notes. According to the Commissioner,
the gist of Dr. Chavey's opinion was that plaintiff's
abdominal pain and its associate symptoms greatly affected
her ability to work. (Tr. 504-507). Yet, much like
plaintiff's emergency room records, Dr. Chavey's
treatment notes showed that plaintiff had no abdominal pain.
(Tr. 490, 493, 496, 499, 931). Thus, while plaintiff contends
that her emergency room records support Dr. Chavey's
opinion, the Commissioner maintains, as explained above, that
they do the exact opposite.
plaintiff's credibility claim, the Commissioner
acknowledges that because the ALJ denied plaintiff's
claim at step two, she was required to assess plaintiff's
credibility at that step. See Curvin v. Colvin, 778
F.3d 645, 649 (7th Cir. 2015) (discussing SSR 96-3p,
available at 1996 WL 374181, at *2). In doing so, the ALJ
found plaintiff's credibility wanting based on the
unremarkable objective evidence, plaintiff's drug seeking
behavior, and her lack of non-emergency room treatment. (Tr.
15-17). The ALJ also questioned plaintiff's August 1,
2013 onset date because plaintiff experienced irritable bowel
syndrome prior to that date (Tr. 204), and the ALJ opined
that the record did not support a conclusion that it worsened
around that time. (Tr. 15). While plaintiff highlights her
decreased earnings in the third quarter of 2013 as evidence
of a downturn in her condition around the onset date, the
Commissioner points out that the reason for the decreased
earnings in that quarter was because her contract job with
the Ford Motor Company ended. (Tr. 27-28, 148, 157). As to
her contention that her emergency room visits in September
2013 demonstrated that her condition worsened, the
Commissioner says all those visits demonstrated was more
drug-seeking behavior (Tr. 714), and more unremarkable
objective examinations. (Tr. 227-228, 234, 237-238, 673,
plaintiff's complaint about “boilerplate language,
” the Commissioner contends that at best, plaintiff has
identified a harmless error because the ALJ accompanied the
boilerplate statement with “an adequate explanation of
the adverse credibility finding.” Sorrell v.
Comm'r of Soc. Sec., 656 Fed.Appx. 162, 174 (6th
Cir. 2016). And, the Commissioner says that the ALJ's
consideration of plaintiff's drug-seeking behavior was an
entirely appropriate. Jackson v. Comm'r of Soc.
Sec., 2015 WL 4611472, at *7 (W.D. Mich. July 31, 2015)
to the extent that the ALJ did not specifically identify any
testimony of plaintiff or make any personal observations
regarding credibility, the Commissioner points out that the
ALJ was not “required to discuss each piece of data in
[her] opinion, so long as [she] consider[ed] the evidence as
a whole and reach a reasoned conclusion.” Boseley
v. Comm'r of Soc. Sec. Admin., 397 Fed.Appx. 195,
199 (6th Cir. 2010). According to the Commissioner, the ALJ
stated on multiple occasions that she considered the entire
record (Tr. 13) ...