DAVID R. GRAND, Magistrate Judge.
Plaintiff Edna Adams ("Adams") brings this action pursuant to 42 U.S.C. §405(g), challenging the 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 [19, 23], 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 that substantial evidence supports the Administrative Law Judge's ("ALJ") conclusion that Adams is not disabled under the Act. Accordingly, the Court recommends that the Commissioner's Motion for Summary Judgment [23] be GRANTED, Adams' Motion for Summary Judgment [19] be DENIED, and that, pursuant to sentence four of 42 U.S.C. §405(g), the ALJ's decision be AFFIRMED.
On July 24, 2012, Adams filed an application for DIB, alleging a disability onset date of May 1, 2010.
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" as the:
42 U.S.C. §423(d)(1)(A). The Commissioner's regulations provide that a disability is to be determined through the application of a five-step sequential analysis:
Scheuneman v. Comm'r of Soc. Sec., 2011 WL 6937331, at *7 (E.D. Mich. Dec. 6, 2011) (citing 20 C.F.R. §404.1520); 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).
At the time of the hearing, Adams was 54 years old, and at 5'10" tall, weighed 235 pounds. (Tr. 29, 129, 140). She had completed high school and earned a certificate in computer programming. (Tr. 29, 130). At the time of the hearing, Adams was divorced with an adult son and living alone. (Tr. 28-29, 150). Previously, she worked as a retail manager at both Target and K-Mart; however, she was laid off in 2007 and has not worked since. (Tr. 30, 130-31).
Adams alleges disability primarily as a result of sarcoidosis, asthma, sciatica, hypertension, thyroid disease, and depression. (Tr. 129, 150). She testified that she has difficulty breathing and uses a nebulizer and inhalers every day. (Tr. 31). She claims her blood pressure is not controlled, and says she gets headaches and tingling when it is elevated. (Tr. 32). Her sciatica causes back pain, which radiates down her left leg. (Tr. 33). In addition, Adams suffers from depression; however, she testified that she had not been undergoing mental health treatment because she lacked insurance for a period of time. (Tr. 33). She takes numerous medications for her conditions, which allegedly cause drowsiness and require her to urinate frequently. (Tr. 37-38, 43-44). She testified that she can walk approximately one block before she gets short of breath; can sit for 25-30 minutes before her back and legs hurt; and cannot lift even a gallon of milk. (Tr. 39-40).
In terms of daily activities, Adams watches television and uses her iPad. (Tr. 42). She is able to bathe and dress herself, prepare simple meals, and shop in stores, but her son and grandson assist her with laundry and housecleaning. (Tr. 42-43, 151-52). She has a driver's license but does not have access to a car; she relies on her son and her brother to drive her to doctors' appointments. (Tr. 28). Adams no longer attends church because she "can't really get out and function too well" and is no longer able to engage in hobbies she previously enjoyed, such as ceramics, walking, and dancing. (Tr. 45, 154). However, she has no difficulty getting along with others and is able to pay bills and handle a checking account. (Tr. 41, 153, 155).
The Court has thoroughly reviewed Adams' medical record. In lieu of summarizing her medical history here, the Court will make references and provide citations to the record as necessary in its discussion of the parties' arguments.
Annette Holder testified as an independent vocational expert ("VE") at the administrative hearing. (Tr. 49-58). The ALJ asked the VE to imagine a claimant of Adams' age, education, and work experience who can lift, carry, push, and pull up to 20 pounds occasionally and 10 pounds frequently, stand and/or walk for 6 hours in an 8-hour workday, and sit for at least 6 hours in an 8-hour workday, with the following additional limitations: no reaching overhead; occasional climbing of ramps and stairs, stooping, and crouching; frequent balancing; no crawling, kneeling, or climbing ladders or scaffolds; must avoid even moderate exposure to pulmonary irritants; limited to simple, routine, and repetitive unskilled tasks, free of fast-paced production requirements, with few (if any) workplace changes and no more than simple workrelated decisions; and no interaction with the public. (Tr. 51-52). The VE testified that the hypothetical individual would not be capable of performing any of Adams' past relevant work. (Id.). However, the VE further testified that the hypothetical individual would be capable of working in the jobs of bench assembler (250,000 jobs in the national economy), inspector (200,000 jobs), and packer (240,000 jobs). (Tr. 52-53).
At Step One of the five-step sequential analysis, the ALJ found that Adams did not engage in substantial gainful activity between May 1, 2010 (the alleged onset date) and December 31, 2012 (the date last insured). (Tr. 10). At Step Two, the ALJ found that Adams has the severe impairments of sarcoidosis, essential hypertension, asthma, affective disorder, hypothyroidism, sciatica, bilateral knee osteoarthritis, left rotator cuff tendinitis, and obesity. (Id.). At Step Three, the ALJ found that Adams' impairments, whether considered alone or in combination, do not meet or medically equal a listed impairment. (Tr. 11).
The ALJ then assessed Adams' residual functional capacity ("RFC"), concluding that she can lift, carry, push, and pull up to 20 pounds occasionally and 10 pounds frequently, stand and/or walk for 6 hours in an 8-hour workday, and sit for at least 6 hours in an 8-hour workday, with the following additional limitations: no reaching overhead; occasional climbing of ramps and stairs, stooping, and crouching; frequent balancing; no crawling, kneeling, or climbing ladders or scaffolds; must avoid even moderate exposure to pulmonary irritants; limited to simple, routine, and repetitive unskilled tasks, free of fast-paced production requirements, with few (if any) workplace changes and no more than simple work-related decisions; and no interaction with the public. (Tr. 13).
At Step Four, the ALJ determined that, through her date last insured, Adams was unable to perform any of her past relevant work. (Tr. 17). At Step Five, the ALJ concluded, based in part on the VE's testimony, that, through her date last insured, Adams was capable of performing a significant number of jobs that exist in the national economy. (Tr. 18). As a result, he found that Adams was not disabled under the Act prior to her date last insured. (Tr. 19).
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, 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. See Kornecky v. Comm'r of Soc. Sec., 167 F. App'x 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); Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) ("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'").
In her motion, Adams argues that the ALJ erred by (1) not having her evaluated by a pulmonary specialist; (2) not affording appropriate weight to the opinion of consultative physician Atul Shah, M.D.; and (3) failing to provide an accurate hypothetical to the VE. (Doc. #19 at 6-9). Each of these arguments is discussed below.
In her first argument, which consists of only a single sentence, Adams asserts that the ALJ erred in failing to have her evaluated by a pulmonary specialist, claiming:
(Id. at 6). This is the entirety of Adams' argument in this respect — she does not explain how her sarcoidosis impacts her activities of daily living, nor does she accompany her argument with any citation to the record. For that reason alone, this argument should be deemed waived. See, e.g., 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. It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones.") (internal quotations omitted).
Moreover, even if the Court were to address the substance of this argument, it is without merit. The ALJ found Adams' sarcoidosis to be a severe impairment at Step Two and addressed this impairment — along with her asthma — in his RFC analysis. (Tr. 10, 13-14). Specifically, the ALJ thoroughly discussed the medical evidence related to Adams' respiratory impairments — which consistently showed that her conditions were stable — and made a negative finding regarding the credibility of Adams' subjective complaints, stating:
(Tr. 13-14 (footnote added)). Substantial evidence supports the ALJ's assessment of the medical evidence related to Adams' respiratory impairments (including sarcoidosis), and the ALJ clearly considered this evidence in formulating Adams' RFC (requiring that she avoid even moderate exposure to pulmonary irritants).
To the extent Adams argues that the ALJ was required to obtain a consultative examination by a pulmonary specialist, such an argument fails. The applicable regulation provides that a consultative examination may be obtained "to try to resolve an inconsistency in the evidence, or when the evidence as a whole is insufficient to allow us to make a determination or decision on your claim." 20 C.F.R. § 404.1519a(b). Here, there was sufficient evidence regarding Adams' sarcoidosis for the ALJ to make a determination as to her respiratory impairments, and Adams has pointed to no evidence suggesting otherwise.
Adams also argues that the ALJ erred in analyzing the opinion of consultative examining physician Atul Shah, M.D. (Doc. #9 at 6-8). Dr. Shah examined Adams on December 10, 2012, noting that she had not worked since 2007 and that she complained of progressively worsening depression since that time. (Tr. 420). Adams also reported "anxiety attacks for the last two to three years," which lasted 20-30 minutes at a time and occurred as often as five times a week. (Tr. 421). Dr. Shah further noted Adams' report that she had received mental health treatment in 2008 but lost her insurance in 2009 and had not seen a psychiatrist or psychologist since that time. (Id.). On mental status examination, Adams was fully oriented with fair insight, spontaneous and organized speech, and a blunted affect. (Tr. 421-22). Dr. Shah assigned a Global Assessment of Functioning ("GAF")
(Tr. 422-23).
The ALJ discussed Dr. Shah's examination findings, ultimately affording his opinion little weight. (Tr. 17). In reaching this conclusion, the ALJ specifically noted that "Dr. Shah's diagnosis of panic disorder was based solely on [Adams'] subjective complaints," that Adams "did not report [] isolation or panic attacks to her treating physician," and that "Dr. Shah's opinion was based on these subjective reports, which are not consistent with [Adams'] treatment record or function report."
Adams appears to advance three challenges to the ALJ's evaluation of Dr. Shah's opinion. First, Adams argues that the ALJ "failed to consider" Dr. Shah's opinion that she "suffered with two psychiatric disorders." (Doc. #19 at 7). As set forth above, this is incorrect; the ALJ thoroughly analyzed Dr. Shah's opinion and properly afforded it little weight. (Tr. 17). Moreover, the ALJ did not disregard Dr. Shah's opinion entirely; indeed, he incorporated into the RFC several limitations related to Adams' mental impairments, saying:
(Tr. 16). Thus, to the extent Dr. Shah opined that Adams had decreased capacity for interaction with the public, the ALJ's mental RFC finding expressly addresses such a limitation.
Adams also argues — somewhat confusingly — that the "opinion of a medical source, especially a specialist, a Board Certified Psychiatrist
First, although Adams suggests that "controlling weight" was due Dr. Shah's opinion under the treating physician rule, that is incorrect, as Dr. Shah was an examining (versus a treating) physician. See Kornecky, 167 F. App'x at 506-07 (one-time examining physician is not considered a treating physician for purposes of application of the treating physician rule) (collecting cases).
Second, contrary to Adams' suggestion, the ALJ considered the relevant factors set forth in 20 C.F.R. § 404.1527(c) in determining the weight to be afforded Dr. Shah's opinion. Specifically, he considered the nature of the relationship between Adams and Dr. Shah (noting that Dr. Shah conducted a one-time consultative examination); the supportability of the opinion (explaining that Dr. Shah's diagnosis of a panic disorder was based solely on Adams' subjective reports, which were not reflected in treatment notes); and the consistency of the opinion with other evidence of record (noting that Dr. Shah's findings were "not consistent with [Adams'] treatment record or function report"). (Tr. 17). Although the ALJ did not expressly identify Dr. Shah's specialty, there is no indication that his specialty (or lack thereof) played any role in the ALJ's decision to discount his opinion. Moreover, "there is no per se rule that requires an articulation of each of the six regulatory factors listed in 20 C.F.R. §404.1527(c)." Biestek v. Comm'r of Soc. Sec., 2017 WL 1214456, at *7 (E.D. Mich. Feb. 24, 2017) (citing cases). Thus, the Court finds no error in this respect.
Finally, Adams argues that the ALJ erred "when he utilized his own opinion as the medical source," rather than relying on Dr. Shah's opinion. (Doc. #19 at 6). But this argument simply misapprehends the law. The Social Security Act provides that it is the responsibility of the ALJ — not a physician — to determine a claimant's RFC, and "[a]n ALJ does not improperly assume the role of a medical expert by assessing the medical and non-medical evidence before rendering a residual functional capacity finding." Poe v. Comm'r of Soc. Sec., 342 F. App'x 149, 157 (6th Cir. 2009). In this case, in determining Adams' RFC, the ALJ considered and provided a detailed analysis of the medical evidence regarding Adams' mental impairment. (Tr. 15 (citing Tr. 269, 271, 295, 297, 301, 303, 307, 309, 319, 321, 334, 347)). In addition, the ALJ considered Dr. Shah's opinion and although he assigned it little weight, he formulated an RFC that provided limitations expressly accounting for Adams' moderate difficulties in concentration, persistence, or pace, as well as her limitations in dealing with the public. (Tr. 13, 16). Thus, the Court finds no error warranting remand in the ALJ's evaluation of Dr. Shah's opinion and/or his formulation of Adams' mental RFC.
Adams also argues that the ALJ failed to provide the VE "with the critical information contained in Dr. Shah's report so the vocational expert could accurately indicate whether the Plaintiff had the residual functional capacity to perform unskilled lite [sic] work." (Doc. #19 at 9). Although Adams phrases this as a Step Five challenge, it is clear that, because the ALJ's RFC finding (Tr. 13) is identical to the hypothetical question he posed to the VE (Tr. 51-52), Adams is actually attempting to challenge the RFC finding via a purported Step Five error. See Kirchner v. Colvin, 2013 WL 5913972, at *11 (E.D. Mich. Nov. 4, 2013) ("Kirchner's Step Five argument is a veiled attack on the ALJ's underlying RFC finding" because "this is not a scenario where the ALJ's hypothetical failed to match up to the RFC he ultimately imposed."). As set forth above, however, the ALJ's assessment of the medical evidence and subsequent RFC finding are supported by substantial evidence. Accordingly, Adams' argument that the ALJ provided the VE with an inaccurate hypothetical lacks merit.
For all of the above reasons, and upon an independent review of the entire record, the Court concludes that the ALJ's decision is supported by substantial evidence.
For the foregoing reasons, the Court RECOMMENDS that the Commissioner's Motion for Summary Judgment [23] be GRANTED, Adams' Motion for Summary Judgment [19] be DENIED, and the ALJ's decision be AFFIRMED.
The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and Fed. R. Civ. P. 72(b)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec'y of HHS, 932 F.2d 505, 508 (6th Cir. 1991); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). The filing of objections which 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. See Willis v. Sec'y of HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. L.R. 72.1(d)(2), a copy of any objections is to be served upon this magistrate judge.
