United States District Court, W.D. Michigan, Northern Division
TIMOTHY P. GREELEY, UNITED STATES MAGISTRATE JUDGE.
September of 2012, plaintiff Sandra McLeod filed an
application for disability and supplemental security income
insurance benefits. See Transcript of Administrative Hearing.
(ECF No. 7, PageID.262-263). Plaintiff alleges that she
became disabled on January 6, 2011, due to degenerative disc
disease, plantar fasciitis, chronic muscle spasms, chronic
headaches, heightened nerve sensitivity, numbness and
tingling in hands and feet, widespread pain, dizzy spells,
blurry vision, and sleep disturbances causing fatigue. (ECF
No. 7-6, PageID.293). Plaintiff's application was denied
initially and plaintiff requested an administrative hearing
before an Administrative Law Judge (ALJ).
Brent C. Bedwell, held a hearing on October 1, 2014 (ECF No.
7-2, PageID127-158). Plaintiff was represented by counsel at
the hearing. Plaintiff and vocational expert John R. Reiser
testified. Plaintiff was born on April 15, 1967, and has a
high school education. (ECF No. 7-2, PageID.131). Plaintiff
lives with her husband and stepson. She has a driver's
license. Plaintiff has past work experience as a casino
blackjack dealer between 1996 and 2001. (PageID.132). She
also worked as a valet and bell attendant. She worked until
2007, at which time she ceased working due to her disability.
explained that she is in chronic pain every day. When she
washes dishes her hands cramp, when she sweeps her back
spasms, when she walks her hips burn, and she has cysts in
the arches of her feet. (PageID.133). The more active she
becomes, the more she hurts. (PageID.134). She takes Norco
for pain, Topamax for nerve pain, Baclofen for muscle spasms,
Prilosec for her ulcer, Claritin for allergies, Remeron for
depression, and Ventolin for asthma.
was examined by neurologist Dr. Coccia who informed her that
she did not need surgery on either her back or neck.
(PageID.135). When Dr. Coccia “crammed his hand into
[her] hip” she screamed and started to cry. Dr. Coccia
asked if she had been diagnosed with having fibromyalgia.
After poking her in the back, which caused her pain, Dr.
Coccia informed her that he thought she had fibromyalgia.
(PageID.136). Plaintiff has had some success with epidurals
and nerve blocks. (PageID.137). Dr. Alshab cauterized the
nerves in the bottom of her back and told her that she had
arachnoiditis, which she believes will eventually cripple
explains that the pain never goes away and that her daily
activities are limited. Plaintiff can watch television
sitting-up until her back locks and then she needs to
lay-down. She does Sudoko puzzles and spends time with her
pet ferret and dog. (PageID.138). Plaintiff stated that she
could sit for about one hour and stand for about one half
hour to one hour before needing to get up and move.
(PageID.140). The cysts in her feet cause her pain from
standing up for too long. Plaintiff experiences hip pain from
walking and needs to stop after about one and a half blocks.
(PageID.141). Plaintiff can lift up to ten pounds on a good
takes Remeron for depression, but does not see a mental
health professional. (PageID.142). She stated that without
Remeron she would cry all the time, so she thinks that it
helps. She does not engage in recommended physical therapy
exercises, but just tries to do her daily activities of
keeping the house clean. Plaintiff states that she has
difficulty sleeping. Plaintiff goes to sleep about 5:00 to
6:00 am and sleeps until 2:00 to 3:00 pm in the afternoon.
vocational expert testified that a hypothetical individual
plaintiff's age, educational background, and work
experience, who is limited to unskilled sedentary work that
allows a change in position every 30 minutes, without needing
to climb ladders, ropes, or scaffolds, limited to occasional
climbing of ramps, stairs, stooping, crouching, kneeling, and
crawling, avoiding exposure to unprotected heights, and
hazardous moving machinery, and who is off task up to ten
percent of the time in addition to regular breaks could not
perform plaintiff's past work because none of those
positions were sedentary. (PageID149-151). That person could
find work such as seated assembly production work (1, 500
jobs in Michigan and 23, 000-24, 000 jobs nationally),
information clerk or appointment clerk (2, 000 jobs in
Michigan and 70, 000 jobs nationally), and office clerk (2,
700 jobs in Michigan and 89, 000 jobs nationally). The
vocational expert opined that anyone who is off task more
than ten percent of the work day would be unable to work.
found that plaintiff could perform jobs that existed in
significant numbers in the national economy given
plaintiff's residual functional capacity (RFC) and
therefore concluded that plaintiff was not under a
“disability” under the Social Security Act (20
C.F.R. § 404.1520(g)). The ALJ's decision became the
agency's final decision when the Appeals Council denied
plaintiff's request for review. Plaintiff now seeks
judicial review of the agency's final decision denying
her request for disability benefits. Plaintiff filed this
action pro se.
of the ALJ's decision is limited to whether the ALJ
applied the correct legal standards and whether the findings
of the ALJ are supported by substantial evidence.”
Winslow v. Comm'r of Soc. Sec., 566 Fed.
App'x 418, 420 (6th Cir. 2014) (quoting Blakley v.
Comm'r of Soc. Sec., 581 F.3d 399, 405 (6th Cir.
2009)); see also 42 U.S.C. § 405(g). The
findings of the ALJ are conclusive if they are supported by
substantial evidence. 42 U.S.C. § 405(g). Substantial
evidence is defined as more than a mere scintilla of evidence
but “such relevant evidence that a reasonable mind
might accept as adequate to support a conclusion.”
Jones v. Sec'y, Health & Human Servs., 945
F.2d 1365, 1369 (6th Cir. 1991). This Court is not permitted
to try the case de novo, nor resolve conflicts in
the evidence and cannot decide questions of credibility.
Brainard v. Sec'y of Health & Human Servs.,
889 F.2d 679, 681 (6th Cir. 1989); see Jones v.
Comm'r of Soc. Sec., 336 F.3d 469, 475 (6th Cir.
2003) (noting the ALJ's decision cannot be overturned if
sufficient evidence supports the decision regardless of
whether evidence also supports a contradictory conclusion).
This Court is required to examine the administrative record
as a whole and affirm the Commissioner's decision if it
is supported by substantial evidence, even if this Court
would have decided the matter differently. See Kinsella
v. Schwikers, 708 F.2d 1058, 1059 (6th Cir. 1983);
see also Mullen v. Bowen, 800 F.2d 535, 545 (6th
Cir. 1986) (holding that the court must affirm a Commissioner
even if substantial evidence would support the opposite
must employ a five-step sequential analysis to determine if
plaintiff is under a disability as defined by the Social
Security Act. Warner v. Comm'r of Soc. Sec., 375
F.3d 387, 390 (6th Cir. 2004). If the ALJ determines
plaintiff is or is not disabled under a step, the analysis
ceases and plaintiff is declared as such. 20 C.F.R. §
404.1520(a). Steps four and five use the residual functional
capacity assessment in evaluating the claim. Id. The
ALJ determined that plaintiff was not engaged in substantial
gainful activity since her January 6, 2011, alleged onset
date, and plaintiff had the severe impairments of
degenerative disc disease, planter fasciitis, obesity,
residuals of left foot surgery, a mood disorder, depression,
and an anxiety disorder. The ALJ noted that plaintiff had
non-severe impairments of gastro esophageal reflux disease
and irritable bowel syndrome. In addition, although plaintiff
alleged she suffers with fibromyalgia, the ALJ found that
without a definitive diagnosis of fibromyalgia it was a
non-medically determinable impairment. The ALJ considered
plaintiff's claims of “diffuse body pain”
allegedly caused by fibromyalgia. The ALJ found that
plaintiffs' impairments did not meet or medically equal
the severity of one of the listed impairments in 20 C. F. R.
part 404, Subpart P, Appendix 1. The ALJ determined that
plaintiff has the residual functional capacity (RFC) to
perform sedentary work with additional limitations of:
alternating between sitting and standing every thirty
minutes, being off task ten percent of the time, avoiding
exposure to heights, hazards and the use of moving machinery,
not climbing ladders, ropes and scaffolds, and allowing only
occasional stooping, crouching, kneeling, crawling and
climbing of ramps and stairs. The ALJ found that plaintiff
could perform unskilled sedentary jobs in the national
economy such as production worker (23, 000 jobs), information
clerk (70, 000 jobs), and general office clerk (89, 000
jobs). This Court must affirm the ALJ's findings if
sufficient evidence supports the decision even if the
evidence supports an alternative conclusion.
argues that the ALJ erred by not finding a definitive
diagnosis of fibromyalgia in the medical records, by failing
to conclude that her foot disorder met listing 1.02(A) and
that her back disorder met listing 1.04, by failing to make
appropriate findings of credibility, and by failing to
conclude that the 2013 mental status examination showed
debilitating mental limitations or that the medical records
supported plaintiff's allegations of disabling symptoms.
Plaintiff further alleges that the ALJ failed in concluding
that she had diminished strength (4/5) in her lower
extremities, but that her sensation and range of motion were
argues that the ALJ failed to conclude that she suffers with
a disabling mental condition because on occasion doctors have
noted that she is dysphoric. The ALJ fully considered
plaintiff's mental impairments when considering her
ability to function daily. The ALJ stated:
The claimant testified she was not seeing a doctor for her
depression. However, she has medication that she stated was
helpful with her symptoms.
In activities of daily living, the claimant has mild
restriction. The claimant uses a pill organizer to remember
her medications (Exhibit B3E-3). She is able to prepare
simple meals and perform basic household chores (Exhibit
B3E-3). The claimant testified she manages about the same
range of activities today. The claimant is able to drive a
car and go shopping (Exhibit B3E-4). Although the claimant
reported difficulties keeping her checkbook balanced, she is
able to pay bills and count change (Exhibit B3E-4). The
claimant reported having difficulties managing her personal
hygiene, but the medical records describe good hygiene
(Exhibits B3E-2, Bl0F-9 and Testimony).
In social functioning, the claimant has mild difficulties.
The claimant reported that she does not have difficulties
getting along with others (Exhibit B3E-6). She gets along
with authority figures and she has never lost a job because
of problems getting along with other people (Exhibit B3E- 7).
The claimant keeps in contact with her family and friends,
but she does not go out and socialize on a regular basis
(Exhibit B3E-5). The claimant reported that her physical pain
is the main reason she does not like to go out (Exhibit
With regard to concentration, persistence or pace, the
claimant has moderate difficulties. The claimant reported
having memory problems and difficulties sustaining
concentration (Exhibit B3E-6). The claimant reported being
able to follow written instructions, but having some
difficulty remembering spoken ones (Exhibit B3E-6). As for
episodes of decompensation, the claimant has experienced no
episodes of decompensation, which have been of extended
duration. The claimant has not been hospitalized due to
mental health issues. The medical records have not documented
deterioration in adaptive functioning caused by mental health
(PageID.115-117). There exists substantial evidence to
support the ALJ's decision that plaintiff does not suffer
from a disabling mental condition.
argues that there exists a general consensus in the medical
records that she suffers with fibromyalgia. Plaintiff asserts
that fibromyalgia appears in a number of her medical records.
In a June 8, 2010, progress note, Dr. Aldridge wrote that
plaintiff presented with subjective complaints that included
“chronic pain superimposed with fibromyalgia.”
(PageID.352). Plaintiff's Neurontin prescription was
increased to 200mg three times per day to address the
fibromyalgia pain. On October 13, 2010, Plaintiff was seen
for a check-up regarding her fibromyalgia complaints.
(PageID.346). At that time, her prescription for Neurontin
was discontinued despite the success in pain improvement
because it caused continuous weight gain. Plaintiff was
intermittently using Robaxin and Flexeril and her chronic
pain issues were to be the subject of a one month follow-up
2012, plaintiff visited the Upper Peninsula Pain Institute at
War Memorial Hospital on several occasions for pain
treatment. Plaintiff presented with low back pain, neck pain,
and shoulder pain. Plaintiff was diagnosed with
lumbar/thoracic radicultis, lumber post laminectomy, and
fibromyalgia/myositis and ...