DAVID R. GRAND, Magistrate Judge.
Plaintiff Anita Barber-Woodley brings this action pursuant to 42 U.S.C. § 405(g), challenging a final decision of Defendant Commissioner of Social Security ("Commissioner") denying her application for Disability Insurance Benefits ("DIB") under the Social Security Act (the "Act"). Both parties have filed summary judgment motions [10, 14], which have been referred to this Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
For the reasons set forth below, the Court finds the Administrative Law Judge's ("ALJ") credibility determination and the hypothetical question developed as a result are valid and supported by substantial evidence of record, resulting in a fully supportable disability determination. Accordingly, the Court RECOMMENDS that the Commissioner's Motion for Summary Judgment [14] be GRANTED, Barber-Woodley's motion [10] be DENIED and that, pursuant to sentence four of 42 U.S.C. § 405(g), the Commissioner's decision be AFFIRMED.
On December 15, 2010, Barber-Woodley filed an application for DIB, alleging disability as of May 25, 2008. (Tr. 129-37).
Under the Act, DIB is available only for those who have a "disability." See Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). The Act defines "disability" in relevant part as the
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
The Commissioner's regulations provide that a disability is to be determined through the application of a five-step sequential analysis:
Schueuneman v. Comm'r of Soc. Sec., No. 11-10593, 2011 U.S. Dist. LEXIS 150240 at *21 (E.D. Mich. Dec. 6, 2011) citing 20 C.F.R. §§ 404.1520, 416.920; see also Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001). "The burden of proof is on the claimant throughout the first four steps . . .. If the analysis reaches the fifth step without a finding that claimant is not disabled, the burden transfers to the [defendant]." Preslar v. Sec'y of Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).
Barber-Woodley, age 59 at the time of application, alleges disability based on the following conditions: depression/suicide and high blood pressure.
Barber-Woodley reported that her day includes reading, watching television and preparing dinner. (Tr. 181). She engages in some household chores including laundry and cleaning, with the help of her husband. (Tr. 182). She goes outside every day, but does not go out alone and only sometimes drives. (Tr. 183). She only will go out with her husband. (Tr. 35). She shops by mail, but does not feel she can handle money well because she cannot concentrate to balance the checkbook. (Tr. 183-84). She attends church twice a week with her husband but does not engage in other activities because she does not like to be around people. (Tr. 32-35). She reads the Bible, but has trouble concentrating. (Tr. 34). She has trouble following instructions, does not get along well with authority figures and does not adapt well to stress or changes in her routine. (Tr. 185-86).
Barber-Woodley does not take direct issue with the ALJ's evaluation of the medical evidence in this case. Further, the Court has reviewed the entire record, and will discuss the relevant portions of that record within the analysis portion of this Report and Recommendation.
Following the five-step sequential analysis, the ALJ concluded that Barber-Woodley was not disabled under the Act. At Step One, the ALJ determined that she did not engage in substantial gainful activity from her alleged onset date through her date last insured, June 30, 2012. (Tr. 19). At Step Two he found that Barber-Woodley suffered from the severe impairment of major depressive disorder. Id. At Step Three he found that her severe impairment did not meet or medically equal a listed impairment, specifically comparing it to Listing 12.04 (Affective Disorders). (Tr. 19-20). In making this determination, the ALJ concluded that Barber-Woodley had mild restriction in activities of daily living, moderate difficulties in social functioning and moderate difficulties in maintaining concentration, persistence and pace, with one to two episodes of decompensation. (Tr. 20).
Next, the ALJ assessed Barber-Woodley's residual functional capacity ("RFC"). He found her capable of work at all exertional levels, but that the work required "no contact with the public, limited contact with co-workers, simple and repetitive tasks, not capable of work requiring constant, [c]lose attention to detail or at more than a regular pace, and requiring occasional supervision." (Tr. 20). At Step Four, the ALJ found that, based on the foregoing RFC, Barber-Woodley could not return to her past relevant work as a teacher's aide. (Tr. 23). However, at Step Five, informed in part by VE testimony, the ALJ concluded that there were a significant number of jobs in the national economy that Barber-Woodley could still perform, and thus she was not disabled within the meaning of the Act. (Tr. 23-24). Specifically, the VE testified that, based on the foregoing RFC, the hypothetical claimant could perform the medium exertion jobs of dishwasher (3,800 jobs in the region), janitor (1,500 jobs), and packer (2,500 jobs), and the light exertion jobs of dishwasher (3,000 jobs), packer (5,200 jobs) and janitor (3,000 jobs). (Tr. 38-39).
The District Court has jurisdiction to review the Commissioner's final administrative decision pursuant to 42 U.S.C. § 405(g). Judicial review under this statute is limited in that the Court "must affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standard or has made findings of fact unsupported by substantial evidence in the record." Longworth v. Comm'r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005) (internal citations omitted); Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 654 (6th Cir. 2009) ("[I]f an agency has failed to adhere to its own procedures, we will not remand for further administrative proceedings unless the claimant has been prejudiced on the merits or deprived of substantial rights because of the agency's procedural lapses.") (internal quotations omitted). 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." Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (internal quotations omitted). In deciding whether substantial evidence supports the ALJ's decision, the Court does "not try the case de novo, resolve conflicts in evidence or decide questions of credibility." Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Rogers, 486 F.3d at 247 ("It is of course for the ALJ, and not the reviewing court, to evaluate the credibility of witnesses, including that of the claimant.").
When reviewing the Commissioner's factual findings for substantial evidence, the Court is limited to an examination of the record and must consider the record as a whole. Bass, 499 F.3d at 512-13; Wyatt v. Sec'y of Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). The court "may look to any evidence in the record, regardless of whether it has been cited by the Appeals Council," or in this case, the ALJ. Heston, 245 F.3d at 535; Walker v. Sec'y of Health & Human Servs., 884 F.2d 241, 245 (6th Cir. 1989). There is no requirement, however, that either the ALJ or this Court discuss every piece of evidence in the administrative record. Kornecky v. Comm'r of Soc. Sec., 167 Fed. Appx. 496, 508 (6th Cir. 2006) ("[A]n ALJ can consider all evidence without directly addressing in his written decision every piece of evidence submitted by a party.") (internal quotations omitted). If the Commissioner's decision is supported by substantial evidence, "it must be affirmed even if the reviewing court would decide the matter differently and even if substantial evidence also supports the opposite conclusion." Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (internal citations omitted).
Despite Barber-Woodley's brief's heading stating that she takes issue with the ALJ's evaluation of her medical records and opinion evidence, as well as with his formulation of an inaccurate hypothetical, the body of her brief fails to meaningfully address those issues. [See generally 10]. Her motion consists mainly of a compilation of quotations of black letter case law, and a recitation of her own testimony, with no accompanying analysis or application of the law to the facts of her case. Id. Further, Barber-Woodley does not actually appear to challenge the ALJ's assessment of the medical evidence, nor does she cite any medical opinion for which the ALJ failed to account. [10 at 9-10]. In fact, her brief cites to no medical evidence whatsoever. Id. Finally, although her argument heading does not suggest she takes issue with the ALJ's credibility determination, the issue of credibility is the only argument in her brief that could be considered even partially developed. (Id. at 9-10).
Barber-Woodley's brief is very similar to one her counsel filed in another matter, Burger v. Comm'r of Soc. Sec., 2013 WL 2285375 (E.D. Mich. May 23, 2013), which the court found to present no non-waived issue. And, on March 24, 2014, Chief Judge Rosen issued a scathing commentary on Barber-Woodley's counsel's approach to his clients' summary judgment briefs:
Fielder v. Comm'r of Soc. Sec., 2014 WL 1207865, at *1, n. 1 (E.D. Mich. Mar. 24, 2014) (internal citations omitted). Despite this warning, Barber-Woodley's counsel has continued to file "one-size-fits-all" briefs, containing the very same "conclusory allegations" and "absence of developed argument" that Chief Judge Rosen found wholly insufficient in Fielder. Here, then, as in Burger, the Court could find that Barber-Woodley has waived her arguments. See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.") (internal quotations omitted). Nonetheless, for the sake of completeness, the Court will consider all of the evidence in light of the arguments raised (albeit vaguely) by Barber-Woodley.
Although not specifically couched as such, Barber-Woodley's motion appears primarily, if not exclusively, to take issue with the ALJ's evaluation of her credibility, as the evidence upon which she relies to support her arguments is entirely her own subjective testimony about her conditions, with no reference to the medical evidence of record. Specifically, she argues that the ALJ failed to account for her stated inability to be around other people (evidenced by the fact that she allegedly only leaves the house twice a week to attend church), her inability to concentrate, her inability to sleep and her continued thoughts of self-harm. She further takes issue with the ALJ ignoring her testimony that the medications taken to control her condition do not always work, and as a result of this and her depression, she is unable to work a full-time job. In conclusion, she argues, "Clearly, if a mother had her only two sons killed — at separate times, it is expected that the depression surrounding that would be debilitating. A finding otherwise is just irrational." [10 at 10]. While the Court certainly sympathizes with Barber-Woodley, in evaluating the ALJ's decision, it must follow the regulations and binding legal precedent. Doing so results in a finding that the ALJ's decision is supported by substantial evidence.
The Sixth Circuit has held that an ALJ is in the best position to observe a witness's demeanor and to make an appropriate evaluation as to her credibility. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997). Thus an ALJ's credibility determination will not be disturbed "absent compelling reason." Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001). When a complaint of pain is in issue, after the ALJ finds a medical condition that could reasonably be expected to produce the claimant's alleged symptoms, she must consider "the entire case record, including the objective medical evidence, the individual's own statements about symptoms, statements and other information provided by treating or examining physicians . . . and any other relevant evidence in the case record." to determine if the claimant's claims regarding the level of her pain are credible. Soc. Sec. Rul. 96-7, 1996 SSR LEXIS 4 at *3, 1996 WL 374186 (July 2, 1996); see also 20 C.F.R. § 404.1529.
Contrary to Barber-Woodley's argument, the ALJ did in fact consider her testimony, and determined that she was not fully credible in her subjective reports of her condition for a variety of reasons.
The ALJ then discussed the medical evidence of record, including the opinion evidence of the consulting examiner. Id. The ALJ noted that treatment records from psychiatrist Dr. Sachin Nagarkar in June 2010 disclosed a Global Assessment of Functioning score of 65,
Regarding her activities of daily living, the ALJ noted that Barber-Woodley was inconsistent as to what her activities were — at some points stating she never went out, then later admitting she attends church twice weekly and telling an examiner she also shops with her husband. (Tr. 21-22; 32; 35; 183; 271). Despite her reports and testimony that she did not like other people, she admitted to getting along well with family, and having many friends at church. (Tr. 21-22; 270-71). The ALJ noted that Barber-Woodley is able to drive, attend medical appointments, and was noted to get along well with the ALJ and answer questions appropriately. (Tr. 21-22). She was also noted to be capable of doing housework, preparing meals and engaging in self-care. (Tr. 21-22; 271). He found these abilities to be consistent "with an active lifestyle for an unemployed person" and thus inconsistent with someone who was completely disabled. (Tr. 22).
As for opinion evidence, the ALJ discussed the consultative examination of Dr. Marianne Goergen in April 2011. (Tr. 21-22). He found Dr. Goergen's opinion to be internally inconsistent, as it diagnosed Barber-Woodley with major depressive disorder, single episode, moderate, but then issued her a GAF score of 40-45, which would be more consistent with severe symptoms. (Tr. 22; 272-73). He further noted that Dr. Goergen's ultimate conclusion was also inconsistent with her observations. (Tr. 22; 270-73). For example, Dr. Goergen concluded that Barber-Woodley would likely demonstrate irritability working with co-workers and supervisors and that her depression symptoms might cause her to have difficulty concentrating in a work setting. (Tr. 22; 272). However, the ALJ pointed out that Barber-Woodley had stated to her that she got along with her sister and son and had many friends at church. (Tr. 22; 270-71). She had also reported activities of daily living that were inconsistent with severe symptoms, including reading the Bible, preparing meals, going to church regularly, paying bills, and shopping with her husband. Id. And finally, the ALJ pointed out that Dr. Goergen herself had noted the possibility that Barber-Woodley was exaggerating her symptoms, but did not appear to take that into account in her ultimate conclusion. (Tr. 22; 271-73). Finally, the ALJ appropriately found that Dr. Goergen's conclusions, that Barber-Woodley would be irritable with co-workers and supervisors, that she would need simple tasks to start, "gradually increasing in complexity," and that she would have difficulty concentrating, "would not preclude the performance of all unskilled work on a sustained full-time basis." (Tr. 21-22; 272).
Overall, the Court finds that the ALJ's reasons for finding Barber-Woodley's subjective reports less than fully credible are valid and supported by substantial evidence of record. Barber-Woodley has offered this Court no compelling reason to overturn the ALJ's credibility determination and the Court finds none. Smith, 307 F.3d at 379 (credibility determination will not be disturbed absent "compelling reason").
Barber-Woodley parlays her credibility argument into one about the adequacy of the ALJ's hypothetical question to the VE. The Court notes that the hypothetical question posed to the VE included the exact same limitations the ALJ ultimately adopted in his written RFC. (Tr. 20; 38). Further, as discussed above, the ALJ had good reasons for rejecting Barber-Woodley's subjective allegations of limitation, and crafting an RFC and hypothetical based more on the objective medical record and Barber-Woodley's activities of daily living.
Barber-Woodley's specific arguments on these matters lack merit. First, Barber-Woodley argues that "Finding that [she] is capable of performing the positions of dishwasher, janitor, and packer while she would be subjected to public interaction, is not something she is capable of doing." [10 at 10 (citing Tr. 24)]. The Court rejects this argument because it ignores that the hypothetical question posed to the VE, and the ultimate RFC imposed by the ALJ, required "no contact with the public, [and only] limited contact with co-workers . . ." (Tr. 20, 38). As noted above, these limitations are consistent with the ALJ's valid credibility determination, in particular his findings about her ability to maintain some personal relationships on a consistent, on-going basis.
Barber-Woodley also argues that the ALJ's limitation of her to simple, routine tasks that do not require much concentration is "cruel" because such jobs are "thoughtless [ ], which, in turn, allows her to constantly think about her depression, which will lead to more severe depression." [10 at 10]. Barber-Woodley argues that she could not sustain such a mindless job "when she would have the entire day to dwell on the fact that her two sons were killed." Id. But as noted above, other than her own testimony, Barber-Woodley fails to provide any support for her argument that she could not perform work within the confines of the RFC. Nor does she provide any support for her conclusion that performing that work would exacerbate her depression. Again, following the proper analysis of the ALJ's decision, the Court should reject Barber-Woodley's argument.
An ALJ is entitled to rely upon the testimony of a VE in response to hypothetical questions to the extent those questions accurately portray the claimant's physical and mental impairments. Varley v. Sec'y of Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987). At the same time, an ALJ is only required to pose those hypothetical limitations that he finds credible. Burbo v. Comm'r of Soc. Sec., No. 10-2016, 2011 U.S. App. LEXIS 26143 (6th Cir. Sept. 21, 2011) citing Stanly v. Sec'y of Health & Human Servs., 39 F.3d 115, 118-19 (6th Cir. 1994). Here, the ALJ's hypothetical is based on his RFC, and his RFC is specifically based on the uncontroverted opinion evidence of record finding that Barber-Woodley could engage in simple work. (Tr. 20; 38-39; 272). Because the ALJ's hypothetical question accurately portrays the limitations he found credible, and because his credibility determination has already been found to be supported by substantial evidence of record, his hypothetical question is accurate and he was entitled to rely on the VE testimony that it generated. Therefore, the ALJ's conclusion that Barber-Woodley is not disabled should be affirmed.
For the foregoing reasons, the Court
