RAY KENT, Magistrate Judge.
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 disability insurance benefits (DIB).
Plaintiff alleged a disability onset date of June 27, 2010. PageID.224. Plaintiff's counsel subsequently amended the alleged onset date to "June [not the first], 2012 to conform to the proofs." PageID.41. Plaintiff identified her disabling conditions as arthritis on the spine which limits the time she can stand and sit, right hip problems, sciatic nerve problems, depression and anxiety. PageID.228. She had one year of college education, and previous employment as the lead hanger in a paint shop, a cashier, a waitress, and a fast food worker. PageID.229. The administrative law judge (ALJ) reviewed plaintiff's claim de novo and entered a written decision denying benefits on June 17, 2014. PageID.41-65. This decision, which was later approved by the Appeals Council, has become the final decision of the Commissioner and is now before the Court for review.
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 Services, 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 Services, 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 not less than twelve months. See 20 C.F.R. § 404.1505; Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). In applying the above standard, the Commissioner has developed a five-step analysis:
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).
Plaintiff's claim failed at the fifth step of the evaluation. At the first step, the ALJ found that plaintiff had not engaged in substantial gainful activity "at any time material to this decision" and that she "meets the disability insured status requirements of the Act and Regulations at all times material to this decision." PageID.44. At the second step, the ALJ found that plaintiff had severe impairments of "[the] lumbar spine for which she underwent spinal fusion surgery with residuals from it and her continuing impairments, and impairments of social functioning, concentration, persistence, or pace due to affective, anxiety, and substance addiction disorders." Id. 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. PageID.47.
The ALJ decided at the fourth step that plaintiff had the residual functional capacity (RFC) to perform a range of light, unskilled work on a sustained basis as follows:
PageID.49. The ALJ also found that plaintiff was unable to perform any past relevant work. PageID.63.
At the fifth step, the ALJ determined that plaintiff could perform a significant number of unskilled, light exertional jobs in the national economy. PageID.64. Specifically, the ALJ found that plaintiff could perform the following unskilled, light work in the region (defined as the State of Michigan): laundry aide (5,000 jobs); housekeeper (3,000 jobs); and mail clerk (1,500 jobs). Id. Accordingly, the ALJ determined that plaintiff has not been under a disability, as defined in the Social Security Act, "at any time material to this decision." Id.
Plaintiff raised two issues on appeal.
Plaintiff claims that the ALJ erred in evaluating her credibility. An ALJ may discount a claimant's credibility where the ALJ "finds contradictions among the medical records, claimant's testimony, and other evidence." Walters v. Commissioner of Social Security, 127 F.3d 525, 531 (6th Cir. 1997). "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 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).
Plaintiff contends that the ALJ rejected her subjective complaints without considering her ability to afford treatment contrary to SSR 96-7p,
SSR 96-7p, 1996 WL 374186 at *7-8 (July 2, 1996).
Contrary to plaintiff's claim, the ALJ considered plaintiff's ability to afford medical treatment in evaluating her credibility:
PageID.58-59. In addition, the record reflects that the ALJ addressed plaintiff's access to health care at the administrative hearing. In this regard, when the ALJ asked plaintiff how she paid for mental health treatment, plaintiff responded that Community Mental Health offered free services until her husband obtained insurance and that now she goes to a different facility paid for by that insurance. PageID.100-101. Based on this record, the ALJ considered plaintiff's ability to afford medical treatment consistent with SSR 96-7p. Accordingly, plaintiff's claim of error will be denied.
Plaintiff contends that the ALJ failed to properly evaluate her RFC, which was determined by "a battle of the consulting physicians." Plaintiff's Brief (docket no. 13, PageID.557).
The thrust of plaintiff's claim is that the ALJ improperly evaluated the opinions of consultants psychologist Dr. Mulder, and orthopedist Dr. Montes. At the outset of his review, the ALJ states that he is giving these examining consultants less weight than the agency's nonexamining consultants:
PageID.60 (emphasis in original).
It appears that the ALJ did not consider Drs. Mulder and Montes' past experience as examiners for the DDS as evidence that they possessed knowledge of the disability review process equal to that of the non-examining agency reviewers. In support of his position, the ALJ cites portions of 20 C.F.R. § 404.1527, which regulates the evaluation of opinion evidence. The first cited section, 20 C.F.R. § 404.1527(c)(1) ("Examining relationship"), provides that "Generally, we will give more weight to the opinion of a source who has examined you than to the opinion of a source who has not examined you." The second cited section, 20 C.F.R. § 404.1527(c)(6) ("Other factors") provides that:
The ALJ relied on § 404.1527(c)(6) to bolster the opinions of the agency reviewers, stating "As previously noted, medical consultants to the Administration — as opposed to non-examining or non-treating medical consultants who may review and comment upon medical evidence — are recognized to have specialized knowledge concerning the disability program and its evidentiary requirements (20 CFR 404.1527(c)(6))." PageID.59.
The regulations acknowledge that agency consultants are experts in Social Security disability evaluation, as set forth in 20 C.F.R.§ 404.1527(e)(2)(i), which states:
20 C.F.R. § 404.1527(e)(2)(i) (emphasis added).
Here, it appears that even though the ALJ found that Dr. Mulder and Dr. Montes were former agency examiners considered to be experts in Social Security disability evaluation while working for the agency, they somehow lost this expertise when they offered opinions on behalf of the claimant, i.e., they no longer had an "understanding of our disability programs and their evidentiary requirements" equal to that of the agency reviewers in this case. 20 C.F.R. § 404.1527(c)(6). In this regard, the ALJ adopted the opinion of two non-examining experts who testified at the hearing, Dr. Solodky (PageID.74-90) and Dr. O'Brien, (PageID.90-99) in part because they had "specialized knowledge of the disability program" under 20 C.F.R. § 404.1527(c)(6). Based on this record, the Court cannot trace the path of the ALJ's reasoning which resulted in his decision to discount the opinions of examining consultants Dr. Mulder and Dr. Montes in favor of the opinions of the non-examining agency reviewers Dr. O'Brien and Dr. Solodky. Stacey, 451 Fed. Appx. at 519. Accordingly, this matter should be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for a re-evaluation of the opinions of Dr. Mulder and Dr. Montes.
For the reasons discussed, the Commissioner's decision will be
