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Case 1:12-cv-00574-HWB Doc #20 Filed 09/20/13 Page 1 of 12 Page ID#414

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

APRIL M. BROTT,



Plaintiff,

v.

COMMISSIONER OF SOCIAL
SECURITY,

Defendant.

/

Case No. 1:12-cv-574
Hon. Hugh W. Brenneman, Jr.

OPINION

Plaintiff brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of

a final decision of the Commissioner of the Social Security Administration (Commissioner) denying

her claim for Supplemental Security Income (SSI).

Plaintiff was born on July 30, 1982 (AR 145).1 She alleged a disability onset date of

August 6, 2005, when she was injured in an auto accident (AR 145, 226). Plaintiff completed two

years of college, and had previous employment as a cashier, a sales clerk and as a janitor at a hospital

(AR 53-55, 151, 155, 165). Plaintiff identified her disabling conditions as back pain due to an auto

accident (AR 150). Plaintiff stated that this condition limited her ability to work, because she is

unable to sit, stand or walk for very long without being in pain, and the pain medication makes her

drowsy (AR 150). The administrative law judge (ALJ) reviewed plaintiff’s claim de novo and

entered a written decision denying benefits on April 29, 2010 (AR 10-20). This decision, which was

later approved by the Appeals Council, has become the final decision of the Commissioner and is

1 Citations to the administrative record will be referenced as (AR “page #”).

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now before the Court for review.

I. LEGAL STANDARD

This court’s review of the Commissioner’s decision is typically focused on

determining whether the Commissioner's findings are supported by substantial evidence. 42 U.S.C.

§405(g); McKnight v. Sullivan, 927 F.2d 241 (6th Cir. 1990). “Substantial evidence is more than a

scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Cutlip v. Secretary of Health & Human Servs.,

25 F.3d 284, 286 (6th Cir. 1994). A determination of substantiality of the evidence must be based

upon the record taken as a whole. Young v. Secretary of Health & Human Servs., 925 F.2d 146 (6th

Cir. 1990).

The scope of this review is limited to an examination of the record only. This Court

does not review the evidence de novo, make credibility determinations or weigh the evidence.

Brainard v. Secretary of Health & Human Services, 889 F.2d 679, 681 (6th Cir. 1989). The fact that

the record also contains evidence which would have supported a different conclusion does not

undermine the Commissioner’s decision so long as there is substantial support for that decision in

the record. Willbanks v. Secretary of Health & Human Services, 847 F.2d 301, 303 (6th Cir. 1988).

Even if the reviewing court would resolve the dispute differently, the Commissioner’s decision must

stand if it is supported by substantial evidence. Young, 925 F.2d at 147.

A claimant must prove that he suffers from a disability in order to be entitled to

benefits. A disability is established by showing that the claimant cannot engage in substantial gainful

activity by reason of any medically determinable physical or mental impairment which can be

expected to result in death or which has lasted or can be expected to last for a continuous period of

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not less than twelve months. See 20 C.F.R. §416.905; Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir.

1990). In applying the above standard, the Commissioner has developed a five-step analysis:

The Social Security Act requires the Secretary to follow a “five-step
sequential process” for claims of disability. First, plaintiff must demonstrate that she
is not currently engaged in “substantial gainful activity” at the time she seeks
disability benefits. Second, plaintiff must show that she suffers from a “severe
impairment” in order to warrant a finding of disability. A “severe impairment” is one
which “significantly limits . . . physical or mental ability to do basic work activities.”
Third, if plaintiff is not performing substantial gainful activity, has a severe
impairment that is expected to last for at least twelve months, and the impairment
meets a listed impairment, plaintiff is presumed to be disabled regardless of age,
education or work experience. Fourth, if the plaintiff's impairment does not prevent
her from doing her past relevant work, plaintiff is not disabled. For the fifth and final
step, even if the plaintiff’s impairment does prevent her from doing her past relevant
work, if other work exists in the national economy that plaintiff can perform, plaintiff
is not disabled.

Heston v. Commissioner of Social Security, 245 F.3d 528, 534 (6th Cir. 2001) (citations omitted).

The claimant bears the burden of proving the existence and severity of limitations

caused by her impairments and the fact that she is precluded from performing her past relevant work

through step four. Jones v. Commissioner of Social Security, 336 F.3d 469, 474 (6th Cir. 2003).

However, at step five of the inquiry, “the burden shifts to the Commissioner to identify a significant

number of jobs in the economy that accommodate the claimant’s residual functional capacity

(determined at step four) and vocational profile.” Id. If it is determined that a claimant is or is not

disabled at any point in the evaluation process, further review is not necessary. Mullis v. Bowen, 861

F.2d 991, 993 (6th Cir. 1988).

“The federal court’s standard of review for SSI cases mirrors the standard applied

in social security disability cases.” D’Angelo v. Commissioner of Social Security, 475 F. Supp. 2d

716, 719 (W.D. Mich. 2007), citing Bailey v. Secretary of Health and Human Servs., No. 90-3265,

1991 WL 310 at * 3 (6th Cir. Jan. 3, 1991). “The proper inquiry in an application for SSI benefits

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is whether the plaintiff was disabled on or after her application date.” Casey v. Secretary of Health

and Human Services, 987 F.2d 1230, 1233 (6th Cir. 1993).

II. ALJ’S DECISION

Plaintiff’s claim failed at the fifth step of the evaluation. The ALJ initially found that

plaintiff had not engaged in substantial gainful activity since her SSI application date of May 2, 2008

(AR 12). Second, the ALJ found that plaintiff had severe impairments of lumbar degenerative disc

disease (“DDD”) and obesity (AR 12). At the third step, the ALJ found that plaintiff did not have

an impairment or combination of impairments that met or equaled the requirements of the Listing

of Impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (AR 19). In this regard, the ALJ reviewed

Listing 1.04 (disorders of the spine) (AR 14). The ALJ decided at the fourth step as follows:

After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform sedentary work as defined
in 20 CFR 416.967(a) except that she is limited to performing work that allows for
a sit/stand at will option in an 8-hour work day. She can never crawl, crouch, kneel,
or climb ladders, ropes, or scaffolds, and she can only occasionally stoop, balance,
and climb ramps and stairs. She must avoid concentrated exposure to vibrations, and
she must not work around hazards such as unprotected heights or dangerous/moving
machinery. In addition, she is limited to performing unskilled, simple, repetitive
tasks.

(AR 15). The ALJ also found that plaintiff was unable to perform any past relevant work (AR 18).

At the fifth step, the ALJ determined that plaintiff could perform a range of unskilled

sedentary work in the regional and national economies (AR 39). Representative occupations

include: video surveillance monitor (2,000 jobs regionally and 82,000 jobs nationally); visual

inspector (2,200 jobs regionally and 110,000 jobs nationally); and order checker (4,800 jobs

regionally and 180,000 jobs nationally) (AR 19-20). Accordingly, the ALJ determined that plaintiff

has not been under a disability, as defined in the Social Security Act, since May 2, 2008, the date the

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application for SSI was filed (AR 20).

III. ANALYSIS

Plaintiff has raised two issues on appeal:

A.

The ALJ erred in assessing residual functional
capacity because he improperly gave substantial
weight to a non-examining physician while failing
to give good reasons for disregarding the
plaintiff’s treating medical source.

Plaintiff contends that the ALJ failed to give good reasons for affording little weight

to the opinion of her treating physician, Kevin Fitzgerald, M.D., and improperly gave substantial

weight to the opinion of a non-examining agency physician, Dinesh Tanna, M.D. (AR 17-18, 233-

39). A treating physician’s medical opinions and diagnoses are entitled to great weight in evaluating

plaintiff's alleged disability. Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001). “In general, the

opinions of treating physicians are accorded greater weight than those of physicians who examine

claimants only once.” Walters v. Commissioner of Social Security, 127 F.3d 525, 529-30 (6th Cir.

1997). “The treating physician doctrine is based on the assumption that a medical professional who

has dealt with a claimant and his maladies over a long period of time will have a deeper insight into

the medical condition of the claimant than will a person who has examined a claimant but once, or

who has only seen the claimant’s medical records.” Barker v. Shalala, 40 F.3d 789, 794 (6th Cir.

1994). See 20 C.F.R. § 416.9527(c)(2) (“Generally, we give more weight to opinions from your

treating sources, since these sources are likely to be the medical professionals most able to provide

a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective

to the medical evidence that cannot be obtained from the objective medical findings alone or from

reports of individual examinations, such as consultative examinations or brief hospitalizations”).

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Under the regulations, a treating source’s opinion on the nature and severity of a claimant’s

impairment must be given controlling weight if the Commissioner finds that: (1) the opinion is

well-supported by medically acceptable clinical and laboratory diagnostic techniques; and (2) the

opinion is not inconsistent with the other substantial evidence in the case record. See Gayheart v.

Commissioner of Social Security, 710 F.3d 365, 375 (6th Cir. 2013); 20 C.F.R. § 416.927(c)(2).

An ALJ is not bound by the conclusory statements of doctors, particularly where the statements are

unsupported by detailed objective criteria and documentation. Buxton, 246 F.3d at 773; Cohen v.

Secretary of Health & Human Services, 964 F.2d 524, 528 (6th Cir. 1992).

In summary, the opinions of a treating physician “are only accorded great weight

when they are supported by sufficient clinical findings and are consistent with the evidence.” Cutlip

v. Secretary of Health and Human Services, 25 F.3d 284, 287 (6th Cir. 1994). Finally, the ALJ must

articulate good reasons for not crediting the opinion of a treating source. See Wilson v.

Commissioner of Social Security, 378 F.3d 541, 545 (6th Cir. 2004); 20 C.F.R. § 416.927(c)(2)

(“[w]e will always give good reasons in our notice of determination or decision for the weight we

give your treating source’s opinion”).

On August 21, 2008, non-examining agency physician, Dr. Dinesh Tanna, reviewed

plaintiff’s medical record to assess her physical residual capacity (AR 233-39). This review

included notes from a consulting examination performed by June Hillelson, D.O., on August 5, 2008

(AR 225-30, 239). In this examination, Dr. Tanna found that plaintiff could frequently lift 10

pounds, sit about six hours in an 8-hour workday, stand and walk about two hours in an 8-hour

workday, and that she required the ability to periodically alternate sitting and standing to avoid pain

(AR 233). Dr. Tanna felt that plaintiff should never kneel, crouch, crawl or climb ladder, ropes or

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scaffolds (AR 234). However, plaintiff could occasionally balance, stoop and climb stairs (AR 234).

Dr. Tanna felt that plaintiff should avoid concentrated exposure to environmental hazards such as

vibration, machinery and heights (AR 236).

On April 7, 2010, plaintiff obtained a sworn statement from Dr. Fitzgerald, an

anesthesiologist with a fellowship in pain management, regarding plaintiff’s limitations (AR 334-

43). Dr. Fitzgerald stated that he treated plaintiff between March 2007 and March 2010 (AR 335).

His working diagnosis for plaintiff’s pain is “lumbar radiculopathy in the S1 nerve root as well as

degenerative disc disease and also lumbosacral spondylosis” (AR 335). In March 2010, the doctor

administered a facet injection for arthritis in the back (AR 337). At that time plaintiff was

prescribed a muscle relaxant (Zanaflex) and was taking pain relievers such as ibuprofen and Vicoden

(AR 337). The doctor agreed that, in his opinion, plaintiff could lift ten pounds occasionally, and

stand and walk for less than two hours in an 8-hour workday (AR 338-39). The doctor felt that

plaintiff could sit, stand and walk for about 20-30 minutes at a time (AR 339). Dr. Fitzgerald felt

that plaintiff’s use of a cane was necessary at times (AR 339). The doctor agreed that, due to her

pain, plaintiff could not work an 8-hour workday, five days a week with normal breaks (AR 339-40).

The doctor testified that plaintiff could never bend, twist, squat, kneel, climb stairs or ladders,

crouch, crawl or stoop, and that she could occasionally reach above the shoulders (AR 340-41). The

doctor would also restrict plaintiff from working at unprotected heights or with moving machinery

due to her back pain and to “cognitive dysfunction” from her medication (AR 341-42). Based on

his review of the records, Dr. Fitzgerald felt that these restrictions have been in place since her

alleged onset date in August 2005 when she suffered injuries in the automobile accident (AR 12,

341-42).

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The ALJ addressed the opinion evidence of Drs. Tanna, Hillelson, Fitzgerald, and

two other treating physicians as follows:

With regard to the opinion evidence, the undersigned has considered the
opinion of Dinesh Tanna, M.D., a State agency medical consultant. Dr. Tanna
opined that the claimant has the residual functional capacity to perform sedentary
work with a sit/stand at-will option (Exhibit 8F2). Dr. Tanna further indicated that
the claimant can never crawl, crouch, kneel, or climb ladders, ropes, or scaffolds, and
that she can only occasionally stoop, balance, and climb ramps and stairs (Exhibit
8F3). In addition, Dr. Tanna opined that the claimant must avoid concentrated
exposure to vibrations, and that she must not work around hazards such as
unprotected heights or dangerous/moving machinery (Exhibit 8F5). Because Dr.
Tanna’s opinion is generally consistent with the objective medical evidence of
record, the undersigned affords it substantial weight in reaching a conclusion as to
the claimant’s residual functional capacity.

The undersigned has also considered the opinions of Stephen Bloom, D.O.,
and Mona Merritt, M.D. In September 2006, Dr. Bloom released the claimant to
work without restrictions (Exhibit 13F4). In October 2007 and December 2007. Dr.
Merritt opined that the claimant needs “5 minute breaks with walking for 15
minutes” with “no lifting greater than 15 pounds,” and “no bending or stooping” and
with a work day “no greater than 8 hours” (Exhibit 1F I6-17). The undersigned
concurs with Dr. Bloom and Dr. Merritt’s opinions that the claimant is not disabled.
However, considering the objective medical evidence of record, and affording some
weight to the claimant’s testimony, the undersigned finds the claimant’s residual
functional capacity more consistent with less than the full range of sedentary work.

In addition, the undersigned has considered the opinion of June Hillelson,
D.O., consultative examiner. At the conclusion of the consultative examination, Dr.
Hillelson opined that the claimant “can perform sedentary activities, although after
sitting for 60 minutes, she should stand for at least 5 minutes. She can stand for 30
minutes, lift 15 pounds, climb 2 flights of stairs, and walk for 1 mile. She should
avoid repetitive bending and not be squatting or stooping” (Exhibit 6F 4). Because
this examining physician’s opinion is supported by the findings on examination and
is generally consistent with the objective medical evidence of record, the
undersigned affords it some weight in reaching a conclusion as to the claimant’s
residual functional capacity.

Consistent with SSR 96-2p, the undersigned has also considered the opinion
of Kevin Fitzgerald, M.D., the claimant's treating physician. In April 2010, Dr.
Fitzgerald limited the claimant to performing significantly less than the full range of
sedentary work (Exhibit 18F7), further indicating that she could not perform full time
work on a regular basis (Exhibit 18F8). However, little weight can be afforded to

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Dr. Fitzgerald’s opinion, since it is inconsistent with his findings on examination and
with the other objective medical evidence of record. Four months before he issued
his opinion, Dr. Fitzgerald reported that the claimant “has gotten good relief with
intermittent facet injections” (Exhibit 9F3). Similarly, he indicated that her radicular
symptoms had disappeared in March 2010 (Exhibit 9F2). And, at the same time he
issued his opinion, Dr. Fitzgerald reported that the claimant experienced 65% pain
relief for two and one-half to three months from facet injections (Exhibit 18F5).

(AR 18).

Viewing the evidence as a whole, the Court concludes that the ALJ gave good

reasons for the weight attributed to Dr. Fitzgerald’s opinion. Wilson, 378 F.3d at 545. In this

regard, the ALJ noted that contrary to Dr. Fitzgerald’s opinion, two other treating physicians (Drs.

Bloom and Merritt), a consultative examiner (Dr. Hillelson) and a non-examining agency physician

(Dr. Tanna) expressed opinions that plaintiff could perform a limited range of sedentary work.

Accordingly, plaintiff’s claim of error will be denied.

B.

Substantial evidence does not support the
credibility determination.

Plaintiff contends the ALJ’s credibility determination is not supported by substantial

evidence because the ALJ relied on plaintiff’s daily activities “to besmirch [her] credibility” without

focusing on the entire record and that the discrepancies in plaintiff’s testimony were “hardly

significant” to undermine her credibility. Plaintiff’s Brief at pp. 14-16. An ALJ may discount a

claimant’s credibility where the ALJ “finds contradictions among the medical records, claimant’s

testimony, and other evidence.” Walters, 127 F.3d at 531. “It [i]s for the [Commissioner] and his

examiner, as the fact-finders, to pass upon the credibility of the witnesses and weigh and evaluate

their testimony.” Heston, 245 F.3d at 536, quoting Myers v. Richardson, 471 F.2d 1265, 1267 (6th

Cir. 1972). The court “may not disturb” an ALJ’s credibility determination “absent [a] compelling

reason.” Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001). The threshold for overturning an ALJ’s

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credibility determination on appeal is so high, that in recent years, the Sixth Circuit has expressed

the opinion that “[t]he ALJ’s credibility findings are unchallengeable,” Payne v. Commissioner of

Social Security, 402 Fed. Appx. 109, 113 (6th Cir. 2010), and that “[o]n appeal, we will not disturb

a credibility determination made by the ALJ, the finder of fact . . . [w]e will not try the case anew,

resolve conflicts in the evidence, or decide questions of credibility.” Sullenger v. Commissioner

of Social Security, 255 Fed. Appx. 988, 995 (6th Cir. 2007). Nevertheless, an ALJ’s credibility

determinations regarding subjective complaints must be reasonable and supported by substantial

evidence. Rogers v. Commissioner of Social Security, 486 F.3d 234, 249 (6th Cir. 2007).

The ALJ evaluated plaintiff’s credibility as follows:

In evaluating the persuasiveness of the testimony, the undersigned notes that
the claimant described daily activities which are not limited to the extent one would
expect, given the complaints of disabling symptoms and limitations. In addition to
the activities described in her testimony above, the claimant completed a function
report in which she indicated that she prepares lunch for herself, visits her best friend
and cousin at their homes, reads, listens to music, talks on the phone, uses the
internet, text messages (Exhibit 3E1), goes outside daily (Exhibit 3E4), goes out to
eat, and goes to church (Exhibit 3E5). Also, aside from the two part time jobs that
the claimant has held since the application date (as described above), the claimant
reported in August 2008 that she was doing some babysitting (Exhibits 9F 3, 11F
13). Overall, the claimant’s actual daily activities reveal a significantly greater
functional ability than alleged.

Though the claimant has been prescribed multiple treatments for the alleged
impairments, which weighs in her favor, medical records reveal that the treatments
have been relatively effective in controlling her symptoms. For example, the
claimant reported in July 2006 that physical therapy had helped “quite a bit” (Exhibit
13F 8). One month later, the claimant was noted to have made “significant
improvements” with physical therapy (Exhibit 13F 5). Additionally, medical records
show that the claimant has experienced pain reduction from her multiple medications
(Exhibits 6F 2, 11F 13, 18). The claimant has also had “good relief” with facet
injections (Exhibits 1F l, 4F 7, 6F 4, 9F 2-4). Furthermore, the claimant reported a
twenty-five percent reduction in her pain level with hydrotherapy (Exhibit 5F 1).

Further, the undersigned notes that there are significant inconsistencies
between the claimant’s statements on record. For example, the claimant reported

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that she can lift no more than ten pounds (Exhibit 3E 6), but she testified that she can
lift up to fifteen pounds. Likewise, the claimant testified that she shops only once
per month, though she previously reported that she shops once per week (Exhibit 3E
4). These discrepancies seriously undermine the claimant’s credibility.

(AR 17) (emphasis in original).

Plaintiff has failed to present a compelling reason to disturb the ALJ’s credibility

determination. The ALJ could properly rely on plaintiff’s daily activities as a basis for finding that

her claim of a disabling condition was not credible. While plaintiff may not have engaged

vigorously in all of these activities, such endeavors are not indicative of an invalid, incapable of

performing sedentary types of work. See, e.g., Pasco v. Commissioner of Social Security, 137 Fed.

Appx. 828, 846 (6th Cir. 2005) (substantial evidence supported finding that plaintiff was not disabled

where plaintiff could “engage in daily activities such as housekeeping, doing laundry, and

maintaining a neat, attractive appearance” and could “engage in reading and playing cards on a

regular basis, both of which require some concentration”) (footnote omitted); Bogle v. Sullivan, 998

F.2d 342, 348 (6th Cir. 1993) (a claimant’s ability to perform household and social activities on a

daily basis is contrary to a finding of disability); Gist v. Secretary of Health and Human Services, 736

F.2d 352, 358 (6th Cir. 1984) (a claimant’s capacity to perform daily activities on a regular basis will

militate against a finding of disability).

In addition, the ALJ could properly observe inconsistencies in plaintiff’s reported

ability to lift and travel. In her function report dated June 18, 2008, plaintiff stated that she could

lift less than 5 to10 pounds, suggesting that she could not perform even light sedentary work (AR

162, 164). See 20 C.F.R. § 416.967(a) (defining sedentary work as “lifting no more than 10 pounds

at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools”).

At her hearing on April 14, 2010, plaintiff testified that she could lift about 15 pounds, an amount

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which would not exclude sedentary work (AR 28, 42). Contrary to plaintiff’s contention, her

inconsistent reports regarding her ability to lift represent the difference between the ability to

perform sedentary work (i.e., lift 15 pounds) and the inability to perform sedentary work (i.e., lift

less than 5 pounds). Plaintiff’s statements regarding her ability to leave her home and shop are also

significant. In June 2008, plaintiff stated that she was able to shop about once a week (AR 160),

while at her hearing plaintiff testified that she could shop only about once a month (AR 50-51). The

difference between being able to leave her house and shop about 52 times a year as opposed to

shopping only 12 times per year is significant, with the latter testimony suggesting that she is

essentially unable to leave her house to undertake a normal daily activity. Plaintiff’s claim of error

is denied.

IV. CONCLUSION

The ALJ’s determination is supported by substantial evidence. Accordingly, the

Commissioner’s decision will be affirmed pursuant to 42 U.S.C. § 405(g). A judgment consistent

with this opinion shall be issued forthwith.

Dated: September 20, 2013

/s/ Hugh W. Brenneman, Jr.
HUGH W. BRENNEMAN, JR.
United States Magistrate Judge

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