STEPHANIE DAWKINS DAVIS, Magistrate Judge.
On September 27, 2016, plaintiff Joan Davis, acting pro se, filed the instant suit. (Dkt. 1). Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(b)(3), District Judge David M. Lawson referred this matter to the undersigned for the purpose of reviewing the Commissioner's unfavorable decision denying plaintiff's claim for period of disability and disability insurance benefits. (Dkt. 4). This matter is before the Court on cross-motions for summary judgment. (Dkt. 15, 20).
Plaintiff initially filed her claims for a period of disability and disability insurance benefits on January 30, 2014. (See Administrative Record, Dkt. 12, hereinafter referred to as "Tr." at 10). The claims were first disapproved by the Commissioner on March 20, 2014. (Tr. 86-9). Plaintiff requested a hearing and on June 3, 2015, plaintiff appeared with counsel before Administrative Law Judge ("ALJ") Yasmin Elias, who considered the case de novo. (Tr. 10). In a decision dated July 1, 2015, the ALJ found that plaintiff was not disabled from November 1, 2013, the alleged onset date ("AOD"), through the date of the decision. (Tr. 19). Plaintiff requested a review of this decision. (Tr. 5-6). The ALJ's decision became the final decision of the Commissioner when the Appeals Council, on August 8, 2016, denied plaintiff's request for review. (Tr. 1-4); Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004).
For the reasons set forth below, the undersigned
Plaintiff was 51 years old at the time of the date of alleged onset of disability of November 1, 2013. (Tr. 18). She has past relevant work as a nurse assistant/home health aide, hand packer, hi-lo driver, housekeeper, babysitter, financial aid technician and construction worker. In considering her claim, the ALJ applied the five-step disability analysis and found at step one that plaintiff had not engaged in substantial gainful activity since the AOD. (Tr. 12). At step two, the ALJ found that plaintiff's spinal disorder, osteoarthritis, asthma, and an affective disorder were "severe" within the meaning of the second sequential step. (Id.). However, at step three, the ALJ found no evidence that any of plaintiff's impairments or combination of impairments met or medically equaled one of the listings in the regulations. (Tr. 13). Thereafter, the ALJ determined the following as to plaintiff's residual functional capacity ("RFC"):
(Tr. 14). At step four, the ALJ found that plaintiff was unable to perform any past relevant work. (Tr. 18). At step five, the ALJ denied plaintiff benefits because she found that there were jobs that exist in significant numbers in the national economy that plaintiff could perform. (Id.).
Plaintiff claims a number of errors pertaining to the ALJ's unfavorable decision and the Appeals Council's denial of her review request. Plaintiff, however, provides very little argument in support of her claims. First, plaintiff states that the ALJ's decision is not supported by substantial evidence. She claims she is unable to work due to her physical and mental conditions, that the ALJ made procedural errors, and that the decision is not supported by substantial evidence pertaining to her psychiatric records. (Dkt. 15, pp. 2-3). Plaintiff also lists several reasons why she believes the Appeals Council erred in its denial of her review request: the Appeals Council did not give sufficient weight to the treating physician's opinion, it did not consider pain and other depression symptoms, and it did not ask for complete assessments of her work abilities from treating physicians. (Id. at p. 3).
She also challenges the Social Security Administration's processes. More particularly, she states that she was not informed that she had the rights to (1) submit additional evidence; (2) examine the evidence used in making the determination; (3) to introduce witnesses and question them, and (4) to present written or oral arguments to the ALJ. (Id.). She also claims she was not notified that an expert witness would be at the hearing, and avers more generally that there was an "abuse of process". (Id.).
Plaintiff states that she "can prove that she attended Disability Determination Services and was examined by a medical consultant and examiner who was not part of the initial decision and barred from deciding plaintiff's reconsideration of claim the claim [sic] which was denied." (Id. at p. 2). Finally, she claims that she was not in a condition to answer questions at the hearing before the ALJ because she was under the influence of prescription drugs. (Id.).
The Commissioner argues that there was substantial evidence to support the ALJ's unfavorable decision. The Commissioner cites various parts of the administrative record to support the conclusion that, although plaintiff has impairments, none caused functional limitations rendering her disabled. For example, records from early 2013 show normal range of motion in her back, normal motor and sensory examinations in her lower extremities, and minimal disc desiccation. (Dkt. 20, Commissioner's Brief, p. 7). And, although plaintiff fell in April 2015, in March 2015 she had no positive musculoskeletal findings, and her physical therapy did not include mobilization or gait training. (Id. at p. 8). Regarding plaintiff's asthma, the Commissioner points out that plaintiff was not prescribed a Nebulizer until April 2015, she continues to smoke cigarettes, her lungs generally were clear to auscultation, x-rays of the chest had been normal, and her blood pressure had been well controlled. (Id. at p. 9) (citing Tr. 48, 224, 227-228, 230, 232, 236, 501; see also Tr. 309, 313, 315, 318). Regarding her affective disorder, the Commissioner notes that plaintiff has no history of hospitalizations or psychological treatment before February of 2014. Further, while plaintiff did receive a GAF score of 50 because she was sad and tearful, by February 2015 she reported that she was feeling great, that she was compliant with medication with no adverse side effects, and that her financial situation was not as bad as it was in the past. (Id.). Moreover, plaintiff's treating physician, Dr. Syed Hussain, assessed GAF scores ranging variously from 55 to 65 between August 2014 and May 2015.
As to plaintiff's claims against the Appeals Council, the Commissioner argues that the Appeals Council decision is not reviewable by this Court. (Id. at p. 13) (citing Meeks v. Sec'y of Health & Human Servs., 1993 WL 216530, at *1 (6th Cir. June 18, 1993)). Nevertheless, the Commissioner goes on to analyze plaintiff's claims against the Appeals Council as if they were raised against the ALJ. On plaintiff's claim that her treating physician's opinions were not accorded sufficient weight, the Commissioner states that the ALJ properly assessed the greatest weight to the two agency physicians: Drs. Yousef and Khalid. (Id. at p. 11) (citing Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 409 (6th Cir. 2009) ("Certainly, the ALJ's decision to accord greater weight to state agency physicians over Blakley's treating sources was not, by itself, reversible error")). Further, the Commissioner argues that the ALJ's decision to give plaintiff's treating physician Dr. Pieh's opinion little weight was proper because the opinion was not supported by any narrative, and there were inconsistencies between the opinion and the record evidence. (Id.). Specifically, in April 2015 after treating plaintiff following a fall, Dr. Pieh noted plaintiff's use of a cane but recorded that she was ambulatory; then, without any explanation or support, checked off a box indicating that plaintiff was unable work. However, the Commissioner maintains that there is nothing in the record to support this assessment as applied to an earlier period. (Id.).
According to the Commissioner, contrary to plaintiff's claim, the ALJ was not required to seek an RFC assessment from her treating physician; the ALJ did consider her symptoms of depression; and the ALJ made appropriate weight assignments to the medical opinions. (Id. at p. 11, 13).
Furthermore, the Commissioner contends that even if the Court were to find that the ALJ erred in assessing plaintiff a light work RFC, the VE testified that there are also sedentary jobs available in significant numbers in the economy. (Id. at p. 12). Therefore, the ALJ's decision is supported by substantial evidence.
In response to plaintiff's general claims of abuse of process and failure to notify her of her rights, the Commissioner maintains that plaintiff is simply incorrect. The hearing notice provided to Plaintiff contained proper notification of her rights. (Id. at p. 14-15). As to plaintiff's argument that she was incapable of properly answering questions because she was under the influence of her prescription medications, the Commissioner contends that there is no evidence of difficulty answering questions—she was able to provide detailed answers. Further, she was represented by counsel who could have requested a continuance if her medication was causing a problem. (Id.).
As to plaintiff's claims about her purported visit with Disability Determination Services, the Commissioner contends that there is no evidence in the record showing a consultative examination, and there was no "reconsideration" phase in the proceedings. (Id. at p. 15). After the initial denial, the claim proceeded to an ALJ hearing. (Id.).
Finally, the Commissioner construes the additional evidence plaintiff submitted to the Court after she filed her brief as a request for a sentence six remand under § 605(g). In response, the Commissioner argues that plaintiff has not met the requirements for a sentence six remand. Sentence six provides that the court may at any time "order additional evidence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding. . . ." See King v. Sec'y of Health & Human Servs., 896 F.2d 204, 206 (6th Cir. 1990). However, two of the documents plaintiff recently submitted are already in the record and thus are not new evidence. (Dkt. 20 at p. 16; Tr. 502, 504). Further, plaintiff failed to show that the remaining evidence is material as it post-dates the ALJ's decision. (Dkt. 20 at p. 16). Moreover, it is not clear that she has established good cause for submitting at least some of the evidence prior to the hearing. (Id.) (citing Oliver v. Sec'y of Health & Human Servs., 804 F.2d 964, 966 (6th Cir. 1986)).
Plaintiff filed an "Answer" which the undersigned construes as a reply. In reply, plaintiff states that the ALJ denied her disability claim because she attended church, and contends that this determination violated her First Amendment Rights and is erroneous because the church is three blocks from her home and services last only an hour and a half. (Dkt. 23, Pg ID 615-16). She also states that she was denied disability benefits because of her obesity. Furthermore, the obesity determination was erroneous because she is not excessively obese, and her weight gain is caused by the steroids she takes. (Id. at Pg ID 616). She claims that while taking her medication she cannot stay focused and that the MRI she filed with the Court in May 2017 shows several bulging discs in her back which causes her pain all day. (Id.).
In enacting the social security system, Congress created a two-tiered system in which the administrative agency handles claims, and the judiciary merely reviews the agency determination for exceeding statutory authority or for being arbitrary and capricious. Sullivan v. Zebley, 493 U.S. 521 (1990). The administrative process itself is multifaceted in that a state agency makes an initial determination that can be appealed first to the agency itself, then to an ALJ, and finally to the Appeals Council. Bowen v. Yuckert, 482 U.S. 137 (1987). If a claimant does not receive relief during this administrative review process, the claimant may file an action in federal district court. Mullen v. Bowen, 800 F.2d 535, 537 (6th Cir. 1986).
This Court has original 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); Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). In determining whether substantial evidence supports the ALJ's 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); Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). "It is of course for the ALJ, and not the reviewing court, to evaluate the credibility of witnesses, including that of the claimant." Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007); Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003) (an "ALJ is not required to accept a claimant's subjective complaints and may . . . consider the credibility of a claimant when making a determination of disability."); Cruse v. Comm'r of Soc. Sec., 502 F.3d 532, 542 (6th Cir. 2007) (the "ALJ's credibility determinations about the claimant are to be given great weight, particularly since the ALJ is charged with observing the claimant's demeanor and credibility.") (quotation marks omitted); Walters, 127 F.3d at 531 ("Discounting credibility to a certain degree is appropriate where an ALJ finds contradictions among medical reports, claimant's testimony, and other evidence."). "However, the ALJ is not free to make credibility determinations based solely upon an `intangible or intuitive notion about an individual's credibility.'" Rogers, 486 F.3d at 247, quoting SSR 96-7p, 1996 WL 374186, *4. If supported by substantial evidence, the Commissioner's findings of fact are conclusive. 42 U.S.C. § 405(g). Therefore, this Court may not reverse the Commissioner's decision merely because it disagrees or because "there exists in the record substantial evidence to support a different conclusion." McClanahan v. Comm'r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc). 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, 486 F.3d at 241; Jones, 336 F.3d at 475. "The substantial evidence standard presupposes that there is a `zone of choice' within which the Commissioner may proceed without interference from the courts." Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994) (citations omitted), citing, Mullen, 800 F.2d at 545.
The scope of this Court's review is limited to an examination of the record only. Bass, 499 F.3d at 512-13; Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). When reviewing the Commissioner's factual findings for substantial evidence, a reviewing court must consider the evidence in the record as a whole, including that evidence which might subtract from its weight. Wyatt v. Sec'y of Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). "Both the court of appeals and the district court may look to any evidence in the record, regardless of whether it has been cited by the Appeals Council." Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). There is no requirement, however, that either the ALJ or the reviewing court must 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 the evidence without directly addressing in his written decision every piece of evidence submitted by a party.") (internal citation marks omitted); see also Van Der Maas v. Comm'r of Soc. Sec., 198 Fed. Appx. 521, 526 (6th Cir. 2006).
The "[c]laimant bears the burden of proving his entitlement to benefits." Boyes v. Sec'y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994); accord, Bartyzel v. Comm'r of Soc. Sec., 74 Fed. Appx. 515, 524 (6th Cir. 2003). There are several benefits programs under the Act, including the Disability Insurance Benefits Program of Title II (42 U.S.C. §§ 401 et seq.) and the Supplemental Security Income Program of Title XVI (42 U.S.C. §§ 1381 et seq.). Title II benefits are available to qualifying wage earners who become disabled prior to the expiration of their insured status; Title XVI benefits are available to poverty stricken adults and children who become disabled. F. Bloch, Federal Disability Law and Practice § 1.1 (1984). While the two programs have different eligibility requirements, "DIB and SSI are available only for those who have a `disability.'" Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). "Disability" means:
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); see also 20 C.F.R. § 416.905(a) (SSI).
The Commissioner's regulations provide that disability is to be determined through the application of a five-step sequential analysis:
Carpenter v. Comm'r of Soc. Sec., 2008 WL 4793424 (E.D. Mich. 2008), citing, 20 C.F.R. §§ 404.1520, 416.920; Heston, 245 F.3d at 534. "If the Commissioner makes a dispositive finding at any point in the five-step process, the review terminates." Colvin, 475 F.3d at 730.
"Through step four, 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." Jones, 336 F.3d at 474, cited with approval in Cruse, 502 F.3d at 540. If the analysis reaches the fifth step without a finding that the claimant is not disabled, the burden transfers to the Commissioner. Combs v. Comm'r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006). At the fifth step, the Commissioner is required to show that "other jobs in significant numbers exist in the national economy that [claimant] could perform given [his] RFC and considering relevant vocational factors." Rogers, 486 F.3d at 241; 20 C.F.R. §§ 416.920(a)(4)(v) and (g).
If the Commissioner's decision is supported by substantial evidence, the decision must be affirmed even if the court would have decided the matter differently and even where substantial evidence supports the opposite conclusion. McClanahan, 474 F.3d at 833; Mullen, 800 F.2d at 545. In other words, where substantial evidence supports the ALJ's decision, it must be upheld.
Plaintiff's claims can be separated into four distinct groups: Appeals Council errors, Sentence Six remand, procedural due process, and her claim having to do with Disability Determination Services. Each will be discussed in turn. For the reasons stated fully below, the undersigned finds that plaintiff's claims lack merit and thus
Plaintiff lists three errors she believes the Appeals Council made in denying her review request: that the Appeals Council did not give sufficient weight to her treating doctor's opinion, did not consider pain and other symptoms arising from her chronic depression, and erred in not asking for complete assessments of her abilities from treating doctors. (Dkt. 15 at p. 3).
As an initial matter, the Appeals Council decision is not reviewable by this Court. The Sixth Circuit has stated that, "[a]n Appeals Council order denying review is not . . . a reviewable order; such an order serves only to make the decision of the ALJ the final reviewable decision of the Secretary." Meeks v. Sec'y of Health & Human Servs., 1993 WL 216530, at *1 (6th Cir. June 18, 1993) (citing 20 C.F.R. § 404.955); see also Swindlehurst v. Astrue, 2012 WL 1622989, at *1 (E.D. Mich. Mar. 9, 2012) ("the Appeals Council's decision not to reopen a prior decision is not reviewable") (citing Harper v. Sec'y of Health and Human Servs., 978 F.2d 260, 262 (6th Cir. 1992)). Therefore, the undersigned will not review the Appeals Council's order.
Having said that, the undersigned recognizes that a pro se plaintiff's pleadings are to be liberally construed. McNier v. Comm'r of Soc. Sec., 166 F.Supp.3d 904, 908 (S.D. Ohio 2016) (citing Franklin v. Rose, 765 F.2d 82, 84-85 (6th Cir. 1985)). Therefore, to the extent plaintiff intended to raise these arguments against the ALJ instead, the arguments lack merit. The opinion of a treating physician should be given controlling weight if it is: (1) "well-supported by medically acceptable clinical and laboratory diagnostic techniques," and (2) "not inconsistent with the other substantial evidence in [the] case record." Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004); 20 C.F.R. § 404.1527(d)(2). The Commissioner is required to provide "good reasons" for discounting the weight given to a treating-source opinion. These reasons must be supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight. Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013). Once an ALJ has determined that a treating source opinion is not entitled to controlling weight, the ALJ should consider other specific factors to resolve the question of what weight will be assessed. Those factors include, (1) the length of the treatment relationship and frequency of examination, (2) the nature and extent of the treatment relationship, (3) supportability of the opinion, (4) consistency of the opinion with the record as a whole, and (5) the specialization of the treating source. Id.; see also Wilson, 378 F.3d at 544. Failure to analyze a treating source opinion under the two-prong controlling weight test amounts to the failure to provide good reasons for giving that opinion less than controlling weight. Gayheart, 710 F.3d at 376-77.
Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011) (citations omitted). "This circuit `has made clear that [it] do[es] not hesitate to remand when the Commissioner has not provided good reasons for the weight given to a treating physician's opinion.'" Gayheart, 710 F.3d at 380 (quoting Cole, 661 F. 3d at 939).
Here, the ALJ assigned treating physician Dr. Pieh's opinion limited weight based on "the omission of objective studies to support it and inconsistencies between this declaratory opinion and prior reports." (Tr. 17). More specifically, as the ALJ explained, Dr. Pieh "checked off that plaintiff was unable to work" but provided no support for this assertion. (Tr. 17). Indeed, Dr. Pieh specifically noted that MRIs and EMGs were not available for his review. (Id). On the other hand, as noted by the ALJ, numerous other reports in the record provide support for the conclusion that notwithstanding her limitations, plaintiff is not disabled. For instance, in February of 2013 plaintiff had a negative straight leg raising test, and examination of her lower extremities was normal. (Tr. 16). The ALJ referenced several objective findings that showed either minimal deficits or were followed by later findings which fell into the normal to mild range. (Id.) After summarizing the aforementioned records, the ALJ observed the following:
the claimant is unable to perform light work. (Id.)
Also, Dr. Pieh's opinion that plaintiff was unable to work was relatively new with no indication that his assessment applied to any period preceding his April 2015 examination. And, the statement that plaintiff was unable to work is not supported by the evidence in the record. Given the omission of objective studies, inconsistences between Dr. Pieh's opinion and prior reports, and the lack of a longterm treating relationship, the ALJ assigned Dr. Pieh's opinion limited weight. (Tr. 17). In doing so, the ALJ provided good reasons both for declining to afford Dr. Pieh's opinion controlling weight, and for according his opinion limited weight. As to the latter, the decision expressly observed that (1) Dr. Pieh did not have a long-term treating relationship with plaintiff; (2) Dr. Pieh's opinions were formed without the aid of objective diagnostic testing and contained internal inconsistency; and (3) his opinions were not supported by the overall record.
Additionally, as noted by the Commissioner, the ultimate decision of disability is reserved to the Commissioner. See White v. Comm'r of Soc. Sec., 572 F.3d 272, 286 (6th Cir. 2009) ("Conclusory statements from physicians are properly discounted by ALJs"); Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 287 (6th Cir. 1994) (Treating physician opinions "are only accorded great weight when they are supported by sufficient clinical findings and are consistent with the evidence"); see also Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) ("`The determination of disability is ultimately the prerogative of the Commissioner, not the treating physician.' Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985)."). Dr. Pieh checked a box on his evaluation form indicating that plaintiff was unable to work — at least as of April 2015. The sole narrative in the explanation section on that form mentions that plaintiff ambulates with a cane. (Tr. 487). No other limitations or restrictions are discussed. In this regard, Dr. Pieh's "opinion" was not so clearly a "medical opinion" as that term is used in the regulations, or of a nature that the ALJ was required to give it controlling weight or even subject it to the good reasons analysis. The ALJ must consider all
On the other hand, the ALJ assigned state agency reviewing Drs. Yousef and Khalid great weight because their opinions were consistent with the medical evidence and the record as a whole. (Id.). "Findings of fact made by State agency medical and psychological consultants and other program physicians and psychologists regarding the nature and severity of an individual's impairment(s) must be treated as expert opinion evidence of nonexamining sources at the administrative law judge and Appeals Council levels of administrative review." SSR 96-6p, 1996 WL 374180, at *1 (July 2, 1996). An ALJ may credit a non-treating physician's opinion over a treating physician's opinion when the ALJ gave good reasons for discounting the treating physician's opinion and the non-treating physician's opinion is supported by substantial evidence. Hill v. Comm'r of Soc. Sec., 560 Fed. Appx. 547, 550 (6th Cir. 2014). As demonstrated above, the ALJ gave good reasons for discounting plaintiff's treating physician's opinion, and as discussed below, the non-treating reviewing physicians' opinions are supported by substantial evidence.
Dr. Yousef evaluated plaintiff's mental functioning, and found that plaintiff had mild difficulty with social function and moderate difficulty with concentration, persistence and pace. (Tr. 17). As a result, he concluded that she could perform simple, routine, repetitive tasks. (Id.) Dr. Yousef's conclusions align with other evidence in the record, namely medical records indicating that plaintiff was capable of performing tasks of daily living like driving, going out alone, shopping in stores and online, reading her bible, using a checking account, watching television and attending church. Additionally, plaintiff did not have any psychiatric hospitalizations and failed to follow up with outpatient treatment. (Id. and Tr. 79, 82).
Dr. Khalid opined as to plaintiff's exertional limitations, concluding that plaintiff could lift 20 pounds occasionally and 10 pounds frequently; she could stand and/or walk for 6 hours out of an 8 hour workday; sit for a total of 6 hours out of an 8-hour work day; push and pull without restrictions beyond her lift/carry limitations; and occasionally climb, balance, stoop, kneel, crouch and crawl. (Tr. 81-82). The ALJ adopted in the RFC those opinions of Dr. Khalid that were supported by the medical evidence in the record. (Tr. 17). Dr. Khalid's evaluation is supported by the record. (See Tr. 77-78, medical evidence on which Dr. Khalid relied). For instance, in January 2013 plaintiff had normal range of motion in her spine. (Tr. 224). In February 2013 plaintiff had normal curvature of the spine, her straight leg raise was bilaterally negative, and she had normal bilateral lower extremities. (Tr. 225). She was noted as having no joint swelling, no tenderness, reduced range of motion in "l-s spine" in a musculoskeletal examination, and her strength appeared to be within normal limits in January 2014. (Tr. 309). In February 2013, an x-ray of plaintiff's left hip revealed the osseous structures to be within normal limits (Tr. 238, 239) and an x-ray of her lumbar spine showed normal osseous structures, and that the disc spaces were well preserved. (Tr. 240). Thus, the opinions of Dr. Khalid that were relied upon are supported by substantial evidence in the record, and there is no reason to disrupt the ALJ's weight assignments in this regard.
Plaintiff's other claims of error also lack merit. For instance, the record reveals that the ALJ did consider the impact that her psychological symptoms would have on her ability to work, contrary to plaintiff's contention. (Tr. 16). Specifically, the ALJ noted that overall her mental evaluations were normal and her symptoms were well-managed. (Id.). As noted by the ALJ and asserted by the Commissioner, the record evidence reveals that plaintiff has no history of hospitalizations or psychological treatment before January or February of 2014. (Id. and Tr. 350). The ALJ also considered the facts that during her February 2014 psychiatric evaluation she was cooperative, pleasant, friendly and talkative; and she did not have any psychomotor agitation or retardation. (Tr. 350). And, while she was assessed a GAF score of 50 in early 2014, between August 2014 and May of 2015 she was assessed meaningfully higher scores ranging from 55 to 65. (Id. and Tr. 420-426, 457, 463).
Additionally, contrary to plaintiff's claim, the ALJ did not err in not requesting a medical assessment of her abilities. It is the claimant's responsibility to provide evidence establishing her RFC. The statute provides that, "[a]n individual shall not be considered to be under a disability unless he [or she] furnishes such medical and other evidence of the existence thereof as the Secretary may require." 42 U.S.C. § 423(d)(5)(A). In deriving the plaintiff's RFC, the Commissioner must base the decision on "all of the relevant medical and other evidence." 20 C.F.R. 416.945. The statute does not require that the Commissioner rely on a physician's RFC, or any other particular piece of evidence. Indeed, the Sixth Circuit has opined, in at least one unpublished decision that, "[t]o require the ALJ to base her RFC finding on a physician's opinion, would, in effect confer upon the treating source the authority to make the determination or decision about whether an individual is under a disability, and thus would be an abdication of the Commissioner's statutory responsibility to determine whether an individual is disabled." Rudd v. Comm'r of Soc. Sec., 531 Fed. Appx. 719, 728 (6th Cir. 2013).
Furthermore, "[w]hile an ALJ `has broad latitude in ordering a consultative examination,' Diaz v. Secretary of Health and Human Services, 898 F.2d 774, 778 (10th Cir. 1990), the ALJ is not required to do so `unless the record establishes that such an examination is necessary to enable the [ALJ] to make the disability decision,'" Landsaw v. Secretary of Health & Human Services, 803 F.2d 211, 214 (6th Cir. 1986) (quoting Turner v. Califano, 563 F.2d 669, 671 (5th Cir.1997). Culp v. Comm'r of Soc. Sec., 2012 WL 4490746, at *4 (W.D. Mich. June 15, 2012), report and recommendation adopted sub nom. Culp v. Sec'y of Health & Human Servs., 2012 WL 4490740 (W.D. Mich. Sept. 28, 2012), aff'd sub nom. Culp v. Comm'r of Soc. Sec., 529 Fed. Appx. 750 (6th Cir. 2013). The Social Security Administration provides further guidance here: "If your medical sources cannot or will not give us sufficient medical evidence about your impairment for us to determine whether you are disabled or blind, we may ask you to have one or more physical or mental examinations or tests. We will pay for these examinations." 20 C.F.R. § 404.1517. "We may purchase a consultative examination 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. During the administrative hearing, the ALJ expressly asked whether the record was complete, and plaintiff's attorney confirmed that it was. (Tr. 28). The record contains sufficient medical records to allow the ALJ to make a determination in this case without ordering a separate examination or assessment. Further, the ALJ had the benefit of a reviewing physician, Dr. Khalid's opinion as to plaintiff's limitations based on his review of the medical records provided at that time. (Tr. 17, 80-81). Ultimately, the ALJ accepted only those portions of Dr. Khalid's opinion that were consistent with the overall record, and in fact, imposed greater postural limitations — "unable to climb ladders, ropes, and scaffolds" — in her RFC than those assessed by Dr. Khalid, as well as limitations to avoid moderate exposure to irritants and hazards and to be restricted to one to two step tasks. (Tr. 14). Plaintiff has not pointed to any record evidence which would undermine a finding of substantial evidence to support the limitations assessed by the ALJ.
Plaintiff submitted evidence to the Court after filing her motion for summary judgment. (Dkts. 19, 21). As noted above, this Court's review is limited to the evidence in the record. Bass, 499 F.3d at 512-13; Foster, 279 F.3d at 357. The question before the Court is whether plaintiff was disabled on or before the date of the ALJ decision, July 1, 2015. This Court cannot review and use any new evidence in determining whether the ALJ's decision is supported by substantial evidence in the record. See Young v. Berryhill, 2017 WL 2727889, at *2 (E.D. Ky. Mar. 21, 2017) ("The Court may evaluate only whether the ALJ applied the correct legal standards and made factual findings that are supported by substantial evidence in the record."). Further, even if the new evidence had been submitted to the Appeals Council, the Court could not rely on it because the Appeals Council declined to review plaintiff's case. See Cline v. Comm'r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996) (citing Cotton v. Sullivan, 2 F.3d 692, 695-96 (6th Cir.1993) ("where the Appeals Council considers new evidence but declines to review a claimant's application for disability insurance benefits on the merits, the district court cannot consider that new evidence in deciding whether to uphold, modify, or reverse the ALJ's decision."). Therefore, the undersigned will not consider the evidence plaintiff submitted to this Court in that manner.
Given that pro se filings are to be liberally construed, the Court considers plaintiff's submission of additional medical evidence to be a request for a Sentence Six remand under 42 U.S.C. § 405(g). See McNier v. Comm'r of Soc. Sec., 166 F.Supp.3d 904, 910 (citing Martin v. Comm'r of Soc. Sec., 2014 WL 2114690, at *3 (N.D. Ohio May 20, 2014)). However, plaintiff has failed to demonstrate that she is entitled to a Sentence Six remand.
"Sentence six of § 405(g) addresses situations where a Claimant submits new evidence that was not presented to the ALJ but would alter the ALJ's ultimate decision." Courter v. Comm'r of Soc. Sec., 479 Fed. Appx. 713, 725 (6th Cir. 2012). Sentence Six provides that the court may at any time
42 U.S.C. § 405(g). Evidence is new if it was not in existence at the time of the hearing. See Foster, 279 F.3d at 357. "Material evidence is evidence that would likely change the Commissioner's decision." Bass, 499 F.3d at 513 (citation omitted). Plaintiff has not made the case that a review of the subject records would likely change the Commissioner's decision. In a filing supplemental to her motion, she merely states that she provided the medical evidence in the hope that it will help this Court come to a decision. (Dkt. 19, Pg ID 576). Certainly evidence presented as "new" which was already in the record is, in fact, not new and will not change the Commissioner's decision; and evidence of medical tests and examinations conducted after the hearing that are largely consistent with prior findings — which the proffered records appear to be — is unlikely to bring about a different result.
As noted, some of the evidence plaintiff submitted is already in the record and therefore is not new because it was available at the time of the hearing. Specifically, the October 29, 2013 MRI report appears at Tr. 502 and the May 20, 2014 progress note appears at Tr. 504. The remaining evidence consists of reports made after the hearing: an April 2017 MRI of plaintiff's spine showing facet arthritis in her spine, (Dkt. 21, Pg ID 612); a September 2016 letter from Dr. Pieh stating the results of an x-ray showing spondylotic changes (Dkt. 19, Pg ID 578); an April 2016 Michigan Department of Human Services Medical Needs form filled out by Dr. Pieh (Id. at Pg ID 580); an undated Medical Needs form (Id. at Pg ID 579); an undated Progress Note (Id. at Pg ID 585); and a September 2016 Progress Note (Id. at Pg ID 587). Her submittal also appears to contain information from her health insurer. (Id. at Pg ID 583-84). While these latter records are new in that they were apparently generated after the hearing, they fall outside of the applicable review period and plaintiff has not made any effort to illuminate how or why review of these records would likely bring about a different result.
Of equal importance is good cause for failing to produce the evidence earlier. "A claimant shows `good cause' by demonstrating a reasonable justification for the failure to acquire and present the evidence for inclusion in the hearing before the ALJ." Foster, 279 F.3d at 357 (citing Willis v. Sec'y of Health & Human Servs., 727 F.2d 551, 554 (1984) (per curiam)). The fact that evidence was not in existence at the time of the hearing
As previously noted, at plaintiff's administrative hearing plaintiff's attorney stated that the record
Plaintiff raises the following claims under the umbrella of procedural due process: that the Commissioner committed abuse of process in the following ways:
(1) having as its motive to block her from receiving the benefits she believes she is entitled to; (2) failing to provide her with notice that there would be an expert witness at the hearing before the ALJ; (3) failing to provide her with notice that she had the right to submit additional evidence — to examine evidence used in making the determination, to introduce witnesses, to question witnesses, and to present written or oral arguments to ALJ; and (4) receiving testimony from her while her medication side effects prevented her from answering questions properly at the hearing. (Id. at pp. 2-3). Each of these claims lacks merit.
Social Security claimants have, for purposes of procedural due process, a property interest in benefits to which he or she hopes to qualify. Flatford v. Chater, 93 F.3d 1296, 1304 (6th Cir. 1996); Richardson v. Perales, 402 U.S. 389, 401-02 (1971). "At a minimum, the Due Process Clause requires that an individual is afforded notice and an opportunity to be heard before the deprivation of a protected interest through adjudication." Ferriell v. Comm'r of Soc. Sec., 614 F.3d 611, 620 (6th Cir. 2010). "Due process requires that a social security hearing be `full and fair." Flatford, 93 F.3d at 1305 (citing Perales, 402 U.S. at 401-02). To determine whether such a hearing passes constitutional muster, a court must look to the three factors identified by the Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335 (1976):
Plaintiff was provided notice of the hearing and who would testify at the hearing. The hearing notice expressly states, "A vocational expert will testify at your hearing." (Tr. 99). The hearing notice also explained plaintiff's rights. She was informed that the Commissioner would subpoena witnesses plaintiff believed had relevant information. (Tr. 99). She was informed that she "may submit documents, present and question witnesses, state your case, and give written statements about the facts and law." (Tr. 99). Therefore, she was notified of her rights before the hearing. Further, she was notified of the right to submit additional evidence after the hearing. The Notice of Decision informed plaintiff: "You or your representative may send us a written statement about your case. You may also send us new evidence. You should send your written statement and any new evidence
Whether a hearing was "full and fair" requires the undersigned to examine the Eldridge factors. The undersigned recognizes that, under the first Eldridge factor, the private interest at stake here is potentially great. Indeed, "a claimant's `private interest' is her `interest in a fair determination of [her] qualification (or lack thereof) for social security disability benefits and a meaningful opportunity to present her case.'" Adams v. Massanari, 55 Fed. Appx. 279, 286 (6th Cir. 2003).
As to the second Eldridge factor, under the procedures followed there was a low risk of an erroneous deprivation. Plaintiff was given an opportunity to heard, with counsel, after receiving multiple notices of the hearing and of her rights, question witnesses, and state her case. See Hearings, Appeals, and Litigation Law Manual ("HALLEX") I-2-6-60 (plaintiff and any witnesses may testify at the hearing before the ALJ subject to the ALJ's determination of subject and scope, and plaintiff and appointed representative, if any, has right to question any witnesses); see also (Tr. 27-73, hearing transcript). The Commissioner's procedures provide plaintiff and similarly-situated individuals a fair opportunity to present arguments for determination of disability. Where a claimant has been given the opportunity to appear at the hearing and did appear, was represented by counsel, and was permitted to present evidence and legal arguments, the claimant's right to due process has not been violated. Corbett v. Comm'r of Soc. Sec., 2012 WL 2462298, at *4 (D.N.J. June 27, 2012), aff'd, 523 Fed. Appx. 892 (3d Cir. 2013). In Corbett, the plaintiff claimed violation of procedural due process because she was not allowed to testify before the ALJ and was not given an opportunity to explain her exhibits. Id. However, because the plaintiff appeared with counsel and presented her case there was no procedural due process violation. Id. Likewise, here, plaintiff was given the opportunity to appear at the hearing and did appear, was represented by counsel, and was permitted to present evidence and legal arguments. Given the sufficient notice explained above and plaintiff's opportunity to present arguments at the hearing with counsel, there is a low risk of erroneous deprivation. See Ferriell, 614 F.3d at 621 (because the procedures at issue provided "Ferriell and similarly-situated individuals a fair opportunity to present arguments like Ferriell's claim for an amended onset date of disability, these procedures present a low risk of an erroneous deprivation of benefits.").
As for the third factor, the undersigned does not see any merit in requiring further procedures than those highlighted above. Plaintiff does not suggest any additional procedures she believes would have helped her case. Because there is a low risk of erroneous determination under the procedures used, the undersigned believes the utility of additional safeguards would be outweighed by the fiscal and administrative burden imposed. See Bailey v. Colvin, 2015 WL 428103, at *5 (E.D. Ky. Jan. 31, 2015). Thus, all three Eldridge factors lead the undersigned to conclude that plaintiff's hearing was full and fair.
The undersigned notes that plaintiff adverted to a state law abuse of process claim. That claim is not within the purview of this Court. "[T]he authority of this Court to review administrative decisions of the Commissioner is limited to deciding whether the proper legal standards were used and `whether there is substantial evidence in the record to support the findings.'" Portwood v. Comm'r of Soc. Sec., 396 F.Supp.2d 799, 804 (E.D. Mich. 2005) (citing Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003)).
Plaintiff also claims that she was unable to answer questions properly at the hearing because she was under the influence of her prescription medication. (Dkt. 15 at pp. 2-3). To the extent this is a claim that her due process rights were violated because she was unable to testify without suffering medication side effects, the argument fails. The seminal case on medication side effects affecting due process rights (and only case on the subject) is Riggins v. Nevada, 504 U.S. 127 (1992). In Justice Kennedy's concurring opinion, he explained that the side effects of antipsychotic drugs can compromise a criminal defendant's right to a fair trial because those types of drugs can affect the defendant's demeanor in the courtroom and render the defendant incapable or unwilling to assist counsel. Id. at 142. The record does not reflect that any issues identified in Riggins are present in this case. There is no indication that her medication affected her concentration or ability to answer questions; there is also no indication that plaintiff was taking antipsychotic drugs. The record does not indicate that she complained of side effects to a medical care provider. Further, the hearing transcript reveals that plaintiff was able to answer questions and provide detail, despite her representation to the ALJ that her medication made it difficult to remember dates. Finally, her attorney did not raise any such issue at the hearing. (Tr. 39).
The undersigned is unable to discern what plaintiff's argument is in regard to attending Disability Determination Services. She claims she "attended Disability Determination Services and was examined by a medical consultant and examiner who was not part of the initial decision and barred from deciding plaintiff's reconsideration of claim the claim [sic] which was denied." (Dkt. 15 at p. 2). There is nothing in the record from Disability Determination Services. Plaintiff does not provide a date for the examination and does not argue that it is evidence missing from the record. As noted earlier, her attorney told the ALJ the record
Finally, the undersigned notes plaintiff's arguments raised for the first time in her reply brief: that the ALJ violated her First Amendment rights when he denied her disability benefits because she attends church, and that she was denied benefits because of her obesity. (Dkt. 23, Pg ID 615-16). Because these arguments are raised for the first time in her reply brief, the arguments are waived. See Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008) ("Raising the issue for the first time in a reply brief does not suffice; reply briefs. . . do not provide the moving party with a new opportunity to present yet another issue for the court's consideration. Further the non-moving party ordinarily has no right to respond to the reply brief. . . . As a matter of litigation fairness and procedure, then, we must treat [such issues] as waived.") (quoting Novosteel SA v. U.S., Bethlehem Steel Corp., 284 F.3d 1261, 1274 (Fed. Cir. 2002)); Newsome v. Comm'r of Soc. Sec., 2014 WL 5362456 at *8 (E.D. Mich. Sept. 24, 2014) (citing Martinez v. Comm'r of Soc. Sec., 2011 WL 1233479 at *2 (E.D. Mich. March 30, 2011)).
For the reasons set forth above, the undersigned
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 and 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 and Human Servs., 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 Local Rule 72.1(d)(2), any objections must be served on this Magistrate Judge.
Any objections must be labeled as "Objection No. 1," "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), Local Rule 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.
