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 was born in 1970. PageID.297. She completed high school, had additional training as a certified Michigan peer support specialist, and had past employment as a temporary laborer, substitute school bus driver, and mental health aide. PageID.156-157, 198, 302. Plaintiff alleged a disability onset date of March 1, 2010. PageID.297. She identified her disabling conditions as bipolar I disorder, chronic fatigue syndrome, fibromyalgia and complex migraines. PageID.301. The administrative law judge (ALJ) reviewed plaintiff's claim de novo and entered a written decision denying benefits on June 24, 2013. PageID.143-157. 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 fourth step of the evaluation. At the first step, the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged onset date of March 1, 2010, and that she meets the insured status requirements of the Act through June 30, 2016. PageID.145. At the second step, the ALJ found that plaintiff had severe impairments of obesity, fibromyalgia, trochanteric bursitis, status post dislocated shoulder, fatigue, chronic pain, asthma, obstructive sleep apnea (OSA), and status post hysterectomy and endometriosis. PageID.146. 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.150.
The ALJ decided at the fourth step that:
PageID.151. The ALJ also found that plaintiff was capable of performing her past relevant work as a mental health aide, work which did not require the performance of work-related activities precluded by her residual functional capacity (RFC). PageID.157. Accordingly, the ALJ found that plaintiff has not been under a disability, as defined in the Social Security Act, from March 1, 2010 (the alleged onset date) through June 24, 2013 (the date of the decision). PageID.127.
Plaintiff raised four issues (with sub-issues) on appeal.
Plaintiff contends that the ALJ failed to include her affective disorders ("bipolar syndrome and depression") as severe impairments. A "severe impairment" is defined as an impairment or combination of impairments "which significantly limits your physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c). Upon determining that a claimant has one severe impairment at step two of the sequential evaluation, the ALJ must continue with the remaining steps in the evaluation. See Maziarz v. Secretary of Health & Human Services, 837 F.2d 240, 244 (6th Cir. 1987). Once the ALJ determines that a claimant suffers from a severe impairment, the fact that the ALJ failed to classify a separate condition as a severe impairment does not constitute reversible error. Id. An ALJ can consider such non-severe conditions in determining the claimant's RFC. Id. "The fact that some of [the claimant's] impairments were not deemed to be severe at step two is therefore legally irrelevant." Anthony v. Astrue, 266 Fed. Appx. 451, 457 (6th Cir. 2008). Here, the ALJ found that plaintiff had a number of severe impairments. PageID.146. The ALJ's failure to include additional severe impairments at step two is legally irrelevant. Accordingly, plaintiff's claim of error will be denied.
Plaintiff contends that Mark Hamilton, MA, LLP, should be treated as an acceptable medical source. The Court disagrees. The regulations define an "acceptable medical source" as licensed physicians, licensed or certified psychologists, licensed optometrists, licensed podiatrists, and qualified speech-language pathologists. See 20 C.F.R. § 404.1513(a). An "acceptable medical source" receives special deference. See 20 C.F.R. § 404.1513(a) ("We need evidence from acceptable medical sources to establish whether you have a medically determinable impairment(s)"). A treating source who is not an "acceptable medical source" is deemed an "other source." See 20 C.F.R. § 404.1513(d) (" In addition to evidence from the acceptable medical sources listed in paragraph (a) of this section, we may also use evidence from other sources to show the severity of your impairment(s) and how it affects your ability to work. Other sources include, but are not limited to — (1) Medical sources not listed in paragraph (a) of this section (for example, nurse-practitioners, physicians' assistants, naturopaths, chiropractors, audiologists, and therapists)[.]").
In the present case, Mr. Hamilton was a "limited licensed psychologist," not a "licensed psychologist." See 20 C.F.R. § 404.1513(a). In Michigan, an individual with a master's degree in psychology may obtain a "limited" psychology license. M.C.L. § 333.18223(b)(2) (authorizing such licenses). Normally, a limited licensed psychologist must be supervised. Id. In Richardson v. Commissioner of Social Security, No. 1:12-cv-776, 2013 WL 5211245 (W.D. Mich. Sept. 16, 2013), affirmed 570 Fed. Appx, 537 (6th Cir. 2014), this Court determined that a limited licensed psychologist is not an acceptable medical source under the regulations:
Richardson, 2013 WL 5211245 at *7-8 (footnote omitted).
In affirming this decision, the Sixth Circuit rejected plaintiff's claim that the ALJ improperly evaluated the opinion of limited licensed psychologist Fabiano:
Richardson v. Commissioner of Social Security, 570 Fed. Appx. 537, 538-39 (6th Cir. 2014) (emphasis added).
Finally, in Smith-Johnson v. Commissioner of Social Security, 579 Fed. Appx, 426 (6th Cir. 2014), a case in which the plaintiff took the opposite position as asserted in here (i.e., that an LLP who issued an unfavorable opinion was not an acceptable medical source), the court explained that in evaluating an opinion prepared by a limited licensed psychologist, the "acceptable medical source" is not the limited licensed psychologist, but rather the supervising licensed psychologist who co-signed the opinion:
Smith-Johnson, 579 Fed. Appx. at 427, 435. Accordingly, plaintiff's claim of error is denied.
Plaintiff contends that the ALJ's RFC determination is not supported by substantial evidence because he erred in evaluating the opinions of Fred Boothby, NP and Mr. Hamilton. RFC is a medical assessment of what an individual can do in a work setting in spite of functional limitations and environmental restrictions imposed by all of his medically determinable impairments. 20 C.F.R. § 404.1545. It is defined as "the maximum degree to which the individual retains the capacity for sustained performance of the physical-mental requirements of jobs." 20 C.F.R. Part 404, Subpt. P, App. 2, § 200.00(c). RFC is determined at step four of the sequential evaluation. See Gentry v. Commissioner of Social Security, 741 F.3d 708, 722 (6th Cir. 2014).
For the reasons discussed, supra, neither NP Boothby nor Mr. Hamilton were acceptable medical sources. Rather, "nurse practitioners, therapists, and the like" are evaluated as "other" medical sources, sometimes referred to as "non-acceptable medical sources." See Amato Noto v. Commissioner of Social Security, — Fed. Appx. —, 2015 WL 7253050 at *4 (6th Cir. Nov. 16, 2015). The ALJ addressed NP Boothby's opinions, one of which was co-signed by Mr. Hamilton,
PageID.155-156.
The regulations provide that the agency will evaluate every medical opinion received "[r]egardless of its source," and that unless a treating source's opinion is given controlling weight, the agency will consider the factors set forth in § 404.1527(c)(1)-(6) in deciding the weight given to any medical opinion. See 20 C.F.R. § 404.1527(c). While the ALJ is required to give "good reasons" for the weight assigned a treating source's opinion, Wilson v. Commissioner of Social Security, 378 F.3d 541, 545 (6th Cir. 2004), this articulation requirement does not apply when an ALJ evaluates the report of a medical source who is not a treating, acceptable medical source. See Smith v. Commissioner of Social Security, 482 F.3d 873, 876 (6th Cir.2007). The opinion of a "non-acceptable medical source," such as a nurse practitioner or therapist, "is not entitled to any particular weight or deference — the ALJ has discretion to assign it any weight he feels appropriate based on the evidence of record." Amato Noto, ___ Fed. Appx. ___, 2015 WL 7253050 at *4. However, "the ALJ's decision still must say enough to allow the appellate court to trace the path of his reasoning." Stacey v. Commissioner of Social Security, 451 Fed. Appx. 517, 519 (6th Cir. 2011) (internal quotation marks omitted). Here, the ALJ provided a reasoned evaluation of the opinions prepared by NP Boothby and Mr. Hamilton. Accordingly, plaintiff's claim of error is denied.
Plaintiff contends that the RFC determination is flawed because it did not take into account plaintiff's significant impairments of bipolar disorder and depression. The ALJ acknowledged that plaintiff was diagnosed with bipolar disorder and borderline personality disorder. PageID.148, 551. However, the diagnosis of a condition says nothing about the severity of the condition. Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988). See McKenzie v. Commissioner of Social Security, No. 99-3400, 2000 WL 687680 at *5 (6th Cir. May 19, 2000) ("the mere diagnosis of an impairment does not render an individual disabled nor does it reveal anything about the limitations, if any, it imposes upon an individual").
Here, the ALJ found that "[t]he claimant's medically determinable mental impairments of bipolar disorder and borderline personality disorder, considered singly and in combination, do not cause more than minimal limitation in the claimant's ability to perform basic mental work activities and are therefore nonsevere." PageID.148. In reaching this determination, the ALJ performed an in-depth review of plaintiff's medical records. PageID.148-150. As discussed, although the ALJ did not find these impairments to be severe impairments, she could consider these non-severe conditions in determining the claimant's RFC. Maziarz, 837 F.2d at 244. However, in this case, the ALJ found no significant limitation which would lead to a work restriction based on these diagnoses. PageID.148-150.
When courts review an ALJ's decision under 42 U.S.C. § 405(g) to determine whether substantial evidence supports that decision, "we do 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). Even if this 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. "As long as the ALJ cited substantial, legitimate evidence to support his factual conclusions, we are not to second-guess." Ulman v. Commissioner, 693 F.3d 709, 714 (6th Cir.2012). Here, the ALJ's evaluation of plaintiff's bipolar disorder and borderline personality disorder is supported by substantial evidence. Accordingly, plaintiff's claim of error is denied.
Although listed in the statement of errors, plaintiff does not develop this argument, other than to state that the limitations set forth in the ALJ's hypothetical question are not supported by plaintiff's RFC. PageID.1135. An ALJ's finding that a plaintiff possesses the capacity to perform substantial gainful activity that exists in the national economy must be supported by substantial evidence that the plaintiff has the vocational qualifications to perform specific jobs. Varley v. Secretary of Health and Human Services, 820 F.2d 777, 779 (6th Cir. 1987). This evidence may be produced through the testimony of a VE in response to a hypothetical question which accurately portrays the claimant's physical and mental limitations. See Webb v. Commissioner of Social Security, 368 F.3d 629, 632 (6th Cir. 2004); Varley, 820 F.2d at 779. However, a hypothetical question need only include those limitations which the ALJ accepts as credible. Blacha v. Secretary of Health and Human Services, 927 F.2d 228, 231 (6th Cir. 1990). Here, the hypothetical posed to the VE incorporated the ALJ's RFC determination. Accordingly, plaintiff claim of error is denied.
It is the claimant's burden at the fourth step of the sequential evaluation to show an inability to return to any past relevant work. Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980). To support a finding that a claimant can perform his or her past relevant work, the Commissioner's decision must explain why the claimant can perform the demands and duties of the past job as actually performed or as ordinarily required by employers throughout the national economy. D'Angelo v. Commissioner of Social Security, 475 F.Supp.2d 716, 723-24 (W.D. Mich. 2007), citing Studaway v. Secretary of Health & Human Services, 815 F.2d 1074, 1076 (6th Cir.1987). See SSR 82-61, 1982 WL 31387 at *2 (1982) (the determination at step four can be supported by the finding that the claimant can perform her past relevant work as "actually performed," or, "as generally required by employers throughout the national economy"). The Act requires that a claimant show that his impairments are so severe that he is "unable to do his previous work." Studaway, 815 F.2d at 1076, quoting 42 U.S.C. § 423(d)(2)(A).
Plaintiff contends that the ALJ failed to consider that her past relevant work as a mental health aide was in a sheltered environment and that an employer in a competitive work setting would not make these accommodations. The Court disagrees. Accommodated work is a factor to consider in determining whether one can do past relevant work. See 20 C.F.R. § 404.1573(c) ("[i]f your work is done under special conditions, we may find that it does not show that you have the ability to do substantial gainful activity").
Boyes v. Secretary of Health & Human Services, 46 F.3d 510, 512 (6th Cir. 1994).
In addressing plaintiff's claim, the ALJ considered the statement of her supervisor, Claudia Wink-Basing, the executive director of InterAct of Michigan. PageID.156. Plaintiff was employed as a peer specialist at InterAct. PageID.888. According to Ms. Wink-Basing, peer specialist positions have some flexibility "to accommodate the cycles of peoples' illnesses that sometimes get in the way of their being able to perform all the duties that everyone else might otherwise be asked to do." Id. Thus, Interact provided an accommodation to plaintiff by changing her work schedule on short notice and letting her work from home. PageID.889. When asked "[d]o you accommodate other professionals or clerical staff by letting them work from home in that same manner?" Ms. Wink-Basing answered, "No, that is really not an option." Id.
The accommodation issue was raised at the administrative hearing, when plaintiff's counsel asked the VE whether, based on Ms. Wink-Basing's statement, plaintiff's past employment was competitive or accommodated. PageID.201. The VE responded that plaintiff's employment was both competitive and accommodated, with the accommodation given to attendance and punctuality. PageID.201-202. The VE also testified that, considering Ms. Wink-Basing's statement, "peer support personnel have that accommodation" at InterAct. PageID.202-203.
In evaluating the evidence regarding plaintiff's RFC, the ALJ assigned little weight to Ms. Wink-Basing's opinion of plaintiff's abilities to perform work-related activities:
PageID.156.
However, the ALJ adopted the VE's opinions which were based upon Ms. Wink-Basing's statements regarding plaintiff's duties in her past relevant work as a peer specialist and the accommodations provided to her by InterAct. The ALJ addressed plaintiff's past relevant work as follows:
PageID.156-157.
The VE considered the issue of accommodation at the administrative hearing and concluded that plaintiff could perform her past relevant work as actually performed at InterAct. Based on this record, substantial evidence supports the ALJ's determination that plaintiff could perform her past relevant work. Accordingly, this claim of error is denied.
The ALJ's determination is supported by substantial evidence. The Commissioner's decision will be