ANTHONY P. PATTI, Magistrate Judge.
Plaintiff, Debra J. Horning, brings this action under 42 U.S.C. §§ 405(g) for review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits (DIB). This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's motion for summary judgment (DE 15), the Commissioner's cross motion for summary judgment (DE 16), Plaintiff's reply (DE 17) and the administrative record (DE 11).
Plaintiff filed her application for DIB on May 24, 2011, alleging that she has been disabled since December 29, 2008, at age 48. R 194-200; see also R. at 218-220, 221-231. Plaintiff alleges disability as a result of migraine headaches, lumbar-degenerative bone disease with pinched disc, diabetes with some neuropathy, fibromyalgia, severe sleep apnea, and depression. R. at 120-121. Plaintiff's application was denied initially on October 17, 2011. R. at 120-134, 135.
On December 9, 2011, Plaintiff sought a de novo hearing before an Administrative Law Judge ("ALJ"). R. at 82-83. ALJ Paul W. Jones held a hearing on October 2, 2012, at which Plaintiff and VE Sharon Princer appeared (R. at 84-119). On November 16, 2012, ALJ Jones issued an unfavorable decision, concluding that Plaintiff had not been under a disability within the meaning of the Social Security Act since December 29, 2008. R. at 61-79.
On or about January 15, 2013, Plaintiff requested review of the unfavorable decision. R. at 59. On March 11, 2014, the Appeals Council denied Plaintiff's request for review. R. at 1-6. Thus, ALJ Jones's decision became the Commissioner's final decision.
Plaintiff then timely commenced the instant action on April 30, 2014. DE 1.
Plaintiff alleges that she has been disabled since December 29, 2008. R. at 28. Plaintiff's medical records span the period from April 22, 2008 to January 7, 2013. R. at 261-736 (Exhibits 1F-21F). Among those the ALJ cited are:
R. at 70-73. These records will be discussed in detail as required below.
Plaintiff testified at the October 2, 2012 hearing. R. at 89-106, 110-117. She has a high school diploma plus two years of college, where she achieved an Administrative Associate's degree. R. at 93-94. She knows how to read and write and do simple math. R. at 94. She has county assistance for health care and receives food stamps in the amount of $200 per month. R. at 95.
When her job with Michigan Bell Telephone Company ended in 2004, she got a year of severance and, after that, a year of unemployment. R. at 96, 100. She was laid off from a job she had in 2008 at Schiffer Mason, after which she thinks she got some unemployment during 2009. R. at 96.
Although she has lived alone since 2008, her 21 year old daughter moved in during 2012 to help Plaintiff. R. at 90. Also living with Plaintiff are her daughter's 24 year old boyfriend and their 22 month old baby. R. at 90-91. They pay some rent, if possible. See R. at 90, 95.
From 2008 to 2012, if she needed something done at the house, she would call for help or hire someone to get it done. She has done laundry when she can but has not done much in 2012. R. at 91-92. Plaintiff grocery shops in small spurts, but she has to lean on the cart and needs assistance to unload canned goods, etc. She drives only short distances, due to twitches in her leg. R. at 92.
Plaintiff has trouble getting ready for doctor's appointments due to pain. R. at 110. Plaintiff takes Ultram®, Mobic® and/or Tylenol for back and hip pain. R. at 103. Her hips are worse than her low back. R. at 103-104. She admitted to smoking marijuana to help relax spasms and to help her sleep. R. at 104.
Upon examination by her counsel, Plaintiff testified about the daily effects of her depression. R. at 110. She also testified that, in addition to Cymbalta®, she takes Neurontin, Zestoretic®, Glucophage, Mobic®, Benadryl®; and Bentyl and described the side effects of these medications. R. at 113-114. She further testified to functional limitations, such as sitting, standing, lifting and showering, as well as her limitation in concentration. R. at 114-115, 116.
The ALJ's re-examination of Plaintiff included testimony about the physical and mental challenges she faces when getting ready for an appointment (R. at 110-111) and that she either lays on the couch or watches television, mostly The Waltons, from her Lazy Boy all day, since she cannot stand or sit (R. at 117). She also testified about her fibromyalgia and the diaphoretic side effects caused by several increases in her dosage of Cymbalta®, of which she was unaware. R. at 111-113.
Vocational Expert (VE) Sharon K. Princer also testified at the October 2, 2012 hearing. When examined by the ALJ, VE Princer testified that Plaintiff's past relevant work as a telephone operator and information operator at Michigan Bell were "semi-skilled, sedentary, SVP 3, performed at sedentary[,]" and the receptionist job at Schiffer Mason Contractor was "SVP 4, semi-skilled, sedentary, performed at medium." R. at 106-107. After being posed with an extensive hypothetical, the VE testified that such a person could perform the light, unskilled jobs of hand packer, inspector and assembler, and which exist in significant numbers in the local economy. R. at 108-109.
However, when examined by Plaintiff's counsel and asked to assume Plaintiff's testimony regarding her limitations, VE Princer testified that Plaintiff would not be able to perform the job duties. R. at 117-118.
ALJ Paul W. Jones rendered his decision on November 16, 2012. R. at 61-79. At Step 1, the ALJ found that Plaintiff had not engaged in substantial gainful activity since December 29, 2008, the alleged onset date. R. at 66.
At Step 2, the ALJ found that Plaintiff had the severe impairments of: obesity; hip, degenerative joint disease and arthritis; anxiety disorder; and affective disorder. R. at 66-68. The ALJ further determined that Plaintiff's lumbago condition, diabetes, hypertension, fibromyalgia and marijuana abuse could not be considered severe impairments. R. at 67-68.
At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. R. at 68-69.
At Step 4, the ALJ found that Plaintiff had the residual functional capacity (RFC) to perform light work with certain exceptions and that Plaintiff could not perform any past relevant work. R. at 69-73.
At Step 5, the ALJ determined that there are jobs that exist in significant numbers in the national economy that Plaintiff could perform. R. at 74.
The District Court has jurisdiction to review the Commissioner's final administrative decision pursuant to 42 U.S.C. § 405(g). When reviewing a case under the Social Security Act, the Court "must affirm the Commissioner's decision if it `is supported by substantial evidence and was made pursuant to proper legal standards.'" Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6
Although the substantial evidence standard is deferential, it is not trivial. The Court must "`take into account whatever in the record fairly detracts from [the] weight'" of the Commissioner's decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, "if substantial evidence supports the ALJ's decision, this Court defers to that finding `even if there is substantial evidence in the record that would have supported an opposite conclusion.'" Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)); see also 42 U.S.C. § 405(g) ("The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive. . . ."). Finally, even if the ALJ's decision meets the substantial evidence standard, "`a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.'" Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).
In her motion for summary judgment, Plaintiff contends that the ALJ did not comply with the Social Security Rules and Regulations when assessing her ability to perform full time competitive work (DE 15 at 22-27) and also contends that the ALJ failed to comply with 20 C.F.R. § 404.1527 and SSR 06-03p in not according adequate weight to the opinion of Plaintiff's treating mental health therapist (DE 15 at 27-30).
The Commissioner opposes Plaintiff's motion, asserting that the ALJ properly assessed Plaintiff's ability to perform full-time competitive employment (DE 16 at 9-21) and the ALJ properly evaluated the opinion from Plaintiff's mental health therapist (DE 16 at 21-26).
The Undersigned will address these arguments in turn.
Plaintiff claims that the ALJ did not assess the impact of her obesity and OSA. DE 15 at 22-23. Plaintiff contends that, while the ALJ determined that Plaintiff had the severe impairment of obesity, the ALJ did not analyze the effects of obesity as required by SSR 02-1p in determining Plaintiff's RFC.
In support of her statement that "[t]he ALJ's recitation of his knowledge that Plaintiff is severely impaired by obesity does not replace a carefully analyzed opinion as to how this very severe impairment effects plaintiff's ability to perform substantial gainful employment[,]" DE 15 at 23, Plaintiff relies upon Sleight v. Commissioner of Social Sec., 896 F.Supp.2d 622, 630-636 (E.D. Mich. 2012) (Cohn, J., adopting report and recommendation of Michelson, M.J.). DE 15 at 23-24. However, as the Commissioner points out (DE 16 at 11-12), Sleight is factually and procedurally distinguishable. In Sleight, the Court remanded at Step 3, after noting the ALJ's finding that Sleight had the severe impairments of low back pain, migraine headaches and bipolar disorder, but not obesity.
More importantly, the ALJ's decision in the case at bar did consider Plaintiff's obesity at Steps 3 through 5. Within the discussion of applicable law, the ALJ stated:
R. at 65. After determining that obesity was one of Plaintiff's severe impairments at Step 2, the ALJ noted within his RFC discussion that Plaintiff had received treatment for obesity. R. at 66, 70. This was obliging, considering that Plaintiff merely testified to her weight, not to any corresponding limitations. R. at 93. Furthermore, while Plaintiff did mention that, due to her inability to stand or sit, she either reclines in her Lazy Boy or lays on the couch during the day and either watches TV or dozes "because I don't sleep at night" (R. at 117), and argues that OSA is "one of the usual comorbidities" associated with obesity (DE 17 at 3) (emphasis added), she fails to show the Court in either one of her briefs where the record supports a claim of debilitating apnea, let alone evidence of the limitations which are alleged to stem from her obesity and/or apnea. (See DE 15 at 22-24, DE 17 at 2-3).
Instead, it was the ALJ who cited reports of Plaintiff's obesity, which are found within his Step 4 RFC determination. Although the ALJ relied upon various records in stating that Plaintiff had received treatment for obesity (see R. at 70, 261-326, 409-463, 470-477), the Undersigned particularly notes that the ALJ gave some weight to the October 7, 2011 physical RFC assessment of Quan Nguyen, M.D. (R. at 128-130), which listed obesity as one of the causes of Plaintiff's postural limitations (R. at 129) and which nevertheless noted that "the claimant has capacity to perform a [sic] light work." R. at 71, 128-130. The ALJ also gave some weight to the October 17, 2011 finding of Blaine Pinaire, Ph.D., which listed obesity as a severe medically determinable impairment. R. at 71, 126. Additionally, he considered the September 22, 2011 internist report of Walid Nader, M.D. of HCC Evaluations, L.L.C., which notes that Plaintiff "has a problem with [and history of] sleep apnea and uses a CPAP machine at home[,]" and lists her weight as 223 pounds, as well as a neurological and orthopedic supplemental report of the same date which mentions pain with squatting and arising from squatting and concludes that clinical evidence supports the need for a walking aid. R. at 72, 589-593.
Plaintiff's argument that the Court "is left without any ability to review how [the ALJ] considered obesity and how he applied it to [Plaintiff's] RFC[,]" suggesting that the ALJ did not comply with 5 U.S.C. § 557(c)(3)(A), is not supported by the record. The ALJ's consideration of both obesity and apnea was adequate.
Plaintiff also reminds the Court that, when examined by Plaintiff's counsel and asked to assume Plaintiff's testimony regarding her limitations, VE Princer testified that Plaintiff would not be able to perform the job duties (R. at 117-118). DE 17 at 3. However, while Plaintiff may well suffer from OSA in association with her Level III obesity,
Plaintiff claims the ALJ did not consider the effects of her lumbago. DE 15 at 24-25. More directly, Plaintiff challenges the ALJ's Step 2 conclusion that Plaintiff's lumbago was not a severe impairment (R. at 67). DE 15 at 24. "[A]n impairment(s) that is `not severe' must be a slight abnormality (or a combination of slight abnormalities) that has no more than a minimal effect on the ability to do basic work activities." Soc. Sec. Rul. 96-3p, 1996 WL 374181 at * 1 (1996). In other words, "if an impairment has `more than a minimal effect' on the claimant's ability to do basic work activities, the ALJ must treat it as `severe.'" Nejat v. Commissioner of Social Sec., 359 F.App'x 574, 576-577 (6th Cir. 2009) (quoting Soc. Sec. Rul. 96-3p, 1996 WL 374181 at * 1 (1996)).
At Step 2, in concluding that Plaintiff's lumbago was not a severe impairment, the ALJ referred to several assessments including the notes of Stanley S. Lee, M.D., who diagnosed chronic low back pain (R. at 466-477) and the consultation report and notes of John J. Wald, M.D., from five separate visits. R. at 67.
In addition, the ALJ's Step 2 discussion regarding lumbago referred to an MRI, specifically the July 20, 2012 MRI of the lumbar spine, which revealed, among other things, degenerative disc disease and mild disc bulges (R. at 625-626). See R. at 67. Moreover, the Court notes that Plaintiff's medical records include further evidence of such tests:
It is Plaintiff's position that "multiple MRIs . . . prove conditions that would account for the pain." DE 15 at 25. However, a diagnosis of lumbago confirmed by an MRI does not necessarily confirm the severity of the lumbago. In Higgs v. Bowen, 880 F.2d 860 (6th Cir. 1988), the Sixth Circuit stated: "The mere diagnosis of arthritis, of course, says nothing about the severity of the condition." Higgs, 880 F.2d at 863 (emphasis added). The Court then noted, "[t]he doctors' reports are silent regarding any limitation of joint motion, as well as the intensity, frequency, and duration of arthritic pain. We have upheld findings of no severe impairment in cases involving similar records." Id. The same is true here. Moreover, the record indicates that Plaintiff's pain is relieved by medication. R. at 67, 478.
To be sure, Plaintiff's reply attempts to make the case, by making several citations to the record, that the ALJ did not properly credit the intensity of her lumbago. See DE 17 at 3-5. However, the ALJ's Step 2 discussion of Plaintiff's lumbago was supported by Dr. Lee's September 30, 2009 notes (R. at 466-477), Dr. Wald's May 3, 2011 notes (R. at 478-483), Dr. Wald's October 19, 2011 notes (R. at 602-606), and Dr. Wald's February 2, 2012, June 5, 2012 and September 11, 2012 notes (R. at 607-623), as well as the July 20, 2012 MRI of the lumbar spine (R. at 625-626). Thus, the ALJ's finding that Plaintiff's lumbago was not a severe impairment is supported by substantial evidence.
Moreover, the ALJ mentioned back pain elsewhere in his decision. For example, at Step 4, the ALJ discussed the April 4, 2011 office visit with Syed Hasan Raza, M.D. (R 405-408), at which Plaintiff felt "some improvement in right hip and low back pain[;]" the May 3, 2011 notes of Michelle Brewer (R. at 391-392), which list low back pain and a diagnosis of fibromyalgia; and Dr. Nader's September 22, 2011 internist report (R. at 589-595), which note "lumbar degenerative bone disease with pinched disc," and "fibromyalgia" among Plaintiff's complaints and indicate that the musculoskeletal examination revealed "mild pain with pressure to the lumbar area." See R. at 72. It is clear that he took all of this into consideration in rendering his opinion.
Thus, even if the ALJ erred by not concluding that Plaintiff's lumbago was a severe impairment, the ALJ took lumbago into consideration at Step 4. See Nejat v. Commissioner of Social Sec., 359 F.App'x 574, 577 (6
Plaintiff claims the ALJ did not consider the effects of her fibromyalgia syndrome. DE 15 at 25-26. In essence, Plaintiff challenges the ALJ's Step 2 conclusion that Plaintiff's fibromyalgia is not a severe impairment. DE 15 at 25, R. at 68.
The Social Security Ruling that concerns the evaluation of fibromyalgia provides, in part: "Generally, a person can establish that he or she has an MDI of FM by providing evidence from an acceptable medical source. A licensed physician (a medical or osteopathic doctor) is the only acceptable medical source who can provide such evidence. We cannot rely upon the physician's diagnosis alone. The evidence must document that the physician reviewed the person's medical history and conducted a physical exam. We will review the physician's treatment notes to see if they are consistent with the diagnosis of FM, determine whether the person's symptoms have improved, worsened, or remained stable over time, and establish the physician's assessment over time of the person's physical strength and functional abilities." SSR 12-2P, 2012 WL 3104869, 2 (July 25, 2012) (footnote omitted).
In concluding that Plaintiff's fibromyalgia was not a severe impairment, the ALJ relied upon Plaintiff's October 2, 2012 testimony (R. at 84-119) and the May 3, 2011 consultation by Dr. Wald (R. at 478-483). Then, the ALJ specifically stated: "As there are no medical evidence records demonstrating a severe fibromyalgia condition or indicating that the condition caused work related or functional limitations for the requisite 12-month period, this condition cannot be considered a severe impairment." R. at 68.
To be sure, Plaintiff backs up her argument that the ALJ did not consider the effects of her FMS with citations to her testimony about housework (R. at 91), and the April 22, 2008 notes of rheumatologist Sonia Yousuf, M.D. (R. at 460-463), as well as references to the notes of rheumatologist Syed Hasan Raza, M.D. DE 15 at 25. Plaintiff takes the position that the ALJ should have analyzed the symptoms listed in Yousuf's and Raza's notes for their effects on Plaintiff's RFC. DE 15 at 25-26. Then, relying in part upon Rogers v. Commissioner of Social Sec., 486 F.3d 234, 245 (6th Cir. 2007), Plaintiff contends that the ALJ "erroneously concentrated on an analysis of how Ms. Horning's pain complaints were not supported by objective medical evidence ([R. at 68]) — which just proves FMS, it does not disprove it." DE 15 at 26. Similarly, in her reply, Plaintiff takes the position that SSR 99-2p, which concerns evaluating chronic fatigue syndrome (CFS) cases, requires more than ALJ Jones provided. DE 17 at 5-6. In so doing, Plaintiff notes that Dr. Nader's September 22, 2011 internist report (R. at 589-595), upon which the ALJ relied in determining Plaintiff's RFC (R. at 72), declares that Plaintiff cannot walk on her heels and toes, her gait is not stable and within normal limits, clinical evidence supports the need for a walking aid, and Plaintiff would fall without aid (R. at 593). This limitation, Plaintiff argues, precludes light work, which requires the use of both hands and the ability to stand at least 6 hours of an 8 hour work day. DE 17 at 6.
However, the Court should conclude that the ALJ properly evaluated Plaintiff's fibromyalgia. First, the ALJ did not rely solely on a lack of objective evidence. As discussed above, the ALJ's Step 2 discussion of fibromyalgia expressly cited Dr. Wald's May 3, 2011 notes (R. at 478-483) and referred to the October 2, 2012 testimony. Second, with respect to the actual or differential diagnoses of rheumatologists Yousuf and Raza, a diagnosis of fibromyalgia does not, by itself, establish a severe impairment. Higgs, 880 F.2d at 863.
Third, as pointed out by the Commissioner, the ALJ considered Plaintiff's fibromyalgia at Step 4. For example, the ALJ referred to the May 3, 2011 notes of Michelle Brewer, which acknowledged a diagnosis of fibromyalgia but indicated a stable clinical impression and an ability to meet her needs in the home (R. at 391-392), and the September 22, 2011 notes of Dr. Nader, which acknowledged the complaint of fibromyalgia, noted "mild pain with pressure to the lumbar area[,]" and apparently acknowledged pain with squatting and arising from squatting R. at 72, 589-595.
Here, the ALJ limited Plaintiff's ability to do light work in several aspects, including "claimant can stand and walk for approximately two hours each and sit for six hours in an eight-hour workday, with normal breaks[.]" R. at 69. Thus, even if the ALJ erred by not concluding that Plaintiff's fibromyalgia was a severe impairment at Step 2, the ALJ took fibromyalgia into consideration at Step 4. See Nejat, 359 F.App'x at 577. In other words, any error in the ALJ's treatment of Plaintiff's fibromyalgia at Step 2 was rendered harmless by the ALJ's treatment of Plaintiff's fibromyalgia during the determination of Plaintiff's RFC.
At the time of Plaintiff's October 11, 2012 appointment, Andrea Breese, M.D., noted the following active medications: Zantac®, Lovaza®, trazodone Hcl, Bentyl®, Zestoretic®, Glucophage®, Ultram®, Neurontin®, Mobic®, diclofenac, Flexeril®, Benadryl®, Cymbalta® and marijuana. R. at 632. During the October 2, 2012 hearing, Plaintiff testified that her side effects include severe sweating, dizziness, falling and nausea. R. at 112-114. Plaintiff contends that these side effects "would adversely affect her ability to hold full time competitive work and [were] overlooked in the ALJ's RFC analysis." DE 15 at 27.
Defendant contends that Plaintiff did not reference any documentary evidence demonstrating medication side effects. See DE 16 at 20-21; see also Essary v. Commissioner of Social Sec., 114 F.App'x 662, 665-666 (6th Cir. 2004) ("Although Essary testified that she suffered from dizziness and drowsiness as a result of her medications, Essary's medical records make no indication that Essary reported such side effects to any of her physicians. Thus, based on the record before him, the ALJ did not err in finding that Essary suffered no adverse side effects from her medications."); Hopkins v. Commissioner of Social Security, 96 F.App'x 393, 395 (6th Cir. 2004) ("There was no evidence of side effects that would prevent Hopkins from engaging in gainful activity. Although Hopkins complained of drowsiness, nausea, and blurred vision, these conditions were not documented in the record. Further, the ALJ noted other instances in which Hopkins had not been completely truthful. Credibility determinations rest with the ALJ.") (citing Siterlet v. Sec'y of Health & Human Servs., 823 F.2d 918, 920 (6th Cir.1987)).
However, Plaintiff replies by citing six (6) instances in which she brought her complaints of side effects from medication to the attention of a physician:
See DE 17 at 6-7.
Nonetheless, the ALJ expressly represented that he acted in accordance with 20 C.F.R. § 404.1529
Plaintiff also argues that the ALJ did not consider Plaintiff's persistent efforts to obtain pain relief as discussed in SSR 96-7p.
However, as the ALJ noted, Plaintiff testified that she sees Dr. Breese at the Center for Family Health approximately every three months when she needs her medications checked or when something else is going on with her (R. at 105-106) and Dr. Brewer also noted she will see Plaintiff back "on as needed basis only[,]" (R. at 467-469, 470-472). See R. at 72.
Moreover, as the Commissioner points out, the record contains evidence which would support a conclusion that Plaintiff can work on a sustained basis. DE 16 at 26. For example, in notes from October 6, 2011 (R. at 596-601), consultative examiners Jeter and Dr. Bray noted, "There is no impairment in the patient's ability to understand simple directions." R. at 600. In Dr. Nader's September 22, 2011 supplemental report (R. at 592-593), Plaintiff's current abilities were only limited in the category of "Squat & Arise from Squatting." R. at 592. Also, Dr. Nguyen's October 7, 2011 physical RFC assessment (R. at 128-130), which mentions using a cane to reduce pain and prevent falling, also mentions that, taking into consideration her obesity, Plaintiff could perform light work. Furthermore, Dr. Pinaire's October 17, 2011 mental RFC assessment (R. at 130-132) explained:
R. at 132. The ALJ made clear that he gave some weight to Drs. Pinaire and Nguyen's October 2011 assessments(R. at 120-134). See R. at 71.
Within his discussion of the medical evidence, ALJ Jones attributed little weight to the September 22, 2011 and September 27, 2012 opinions of Eric Mikelait, L.M.S.W. (R. at 588, R. at 628). R. at 71. By way of background, Mikelait provided outpatient therapy for Plaintiff from October 15, 2010 to September 27, 2012. R. at 588, 628.
Despite this period of treatment, the record seems to contain only two (2) documents from Mikelait. First, in a letter dated September 22, 2011, Mikelait wrote to Wendy Shultz (R. at 588), the person who signed the October 17, 2011 disability determination (R. at 134-135). Second, on September 27, 2012, Mikelait wrote another letter (R. at 628), seemingly in preparation for the October 2, 2012 hearing. The ALJ referred to Mikelait's two letters in his opinion, stating:
DE 71 (emphasis added).
As an initial matter, the parties agree that Mikelait is not an "acceptable medical source" as contemplated by 20 C.F.R. §§ 404.1513(a), 416.913(a) ("Sources who can provide evidence to establish an impairment."). See DE 16 at 23, DE 17 at 7. Moreover, as the Commissioner correctly points out (DE 16 at 23), Mikelait, who is a licensed master social worker (LMSW) (R. at 628), is not a "treating source" as defined by 20 C.F.R. § 404.1502, 20 C.F.R. § 416.902 ("Treating source means your own physician, psychologist, or other acceptable medical source who provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with you.").
Instead, Plaintiff contends that Mikelait is an "other source" under 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1). DE 17 at 7. "[I]nformation from such `other sources' may be based on special knowledge of the individual and may provide insight into the severity of the impairment(s) and how it affects the individual's ability to function." SSR 06-03p, 2006 WL 2329939, 2 (Aug. 9, 2006).
Plaintiff argues that the ALJ did not comply with 20 C.F.R. § 404.1527 ("Evaluating Opinion Evidence.") and SSR 06-03p by not according adequate weight to the opinion of Mikelait, and by not considering the length and nature of the treatment relationship.
SSR 06.03p provides, in part: "Although the factors in 20 CFR 404.1527(d) and 416.927(d) explicitly apply only to the evaluation of medical opinions from `acceptable medical sources,' these same factors can be applied to opinion evidence from `other sources.' These factors represent basic principles that apply to the consideration of all opinions from medical sources who are not `acceptable medical sources' as well as from `other sources,' such as teachers and school counselors, who have seen the individual in their professional capacity. These factors include:
SSR 06-03p, 2006 WL 2329939, 4-5 (emphasis added).
Here, the ALJ acknowledged his compliance with SSR 06-03p (R. at 69) and, as noted above, found Mikelait's assessment
Moreover, while I acknowledge Plaintiff's statement about her "many visits" with Mikelait (DE 15 at 29), the Court has only seen two (2) entries from Mikelait — the September 22, 2011 letter (R. at 588) and the September 27, 2012 letter (R. at 628) — and not the underlying records. The ALJ cited each of these in his RFC finding. R. at 71.
Also, to the extent Plaintiff argues that the ALJ should have found Plaintiff disabled in light of Mikelait's observations and Plaintiff's testimony about depression and concentration (see DE 15 at 29), the ALJ did consider Plaintiff's testimony and noted that she "responded well to treatment" once her "medications were adjusted." See R. at 70, 494.
"[D]uring the first four steps, the claimant has the burden of proof; this burden shifts to the Commissioner only at Step Five." Walters v. Commissioner of Social Sec., 127 F.3d 525, 529 (6th Cir. 1997). It is the claimant's burden to prove his or her RFC. See 20 C.F.R. § 416.912(a); Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001).
Plaintiff has not satisfied her burden to challenge the ALJ's Step 2 or RFC findings. Thus, from a review of the record as a whole and for the reasons stated above, the Undersigned concludes that substantial evidence supports the ALJ's decision denying benefits. Accordingly, it is
The parties to this action may object to and seek review of this Report and Recommendation, but are required to file any objections within 14 days of service, as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 72.1(d). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec'y of Health & Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sec'y of Health & Human Servs., 932 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1273 (6th Cir. 1987). Pursuant to Local Rule 72.1(d)(2), any objections must be served on this Magistrate Judge.
Any objections must be labeled as "Objection No. 1," and "Objection No. 2," etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than 14 days after service of an objection, the opposing party may file a concise response proportionate to the objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich LR 72.1(d). The response must specifically address each issue raised in the objections, in the same order, and labeled as "Response to Objection No. 1," "Response to Objection No. 2," etc. If the Court determines that any objections are without merit, it may rule without awaiting the response.
1. Is the claimant engaged in substantial gainful activity?
2. Does the claimant suffer from one or more severe impairments?
3. Do the claimant's severe impairments, alone or in combination, meet or equal the criteria of an impairment set forth in the Commissioner's Listing of Impairments, 20 C.F.R. Subpart P, Appendix 1?
4. Considering the claimant's residual functional capacity, can the claimant perform his or her past relevant work?
5. Considering the claimant's age, education, past work experience, and residual functional capacity, can the claimant perform other work available in the national economy?
See 20 C.F.R. §404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009); Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
