ROBERT HOLMES BELL, District Judge.
This is a social security action brought under 42 U.S.C. §§ 405(g) seeking judicial review of a final decision of the Commissioner of the Social Security Administration (Commissioner). Plaintiff Mary Whittaker seeks review of the Commissioner's decision denying her claim for disability benefits (DIB) and supplemental security income (SSI) under Titles II and XVI of the Social Security Act.
The Court's jurisdiction is confined to a review of the Commissioner's decision and of the record made in the administrative hearing process. See Willbanks v. Sec'y of Health & Human Servs., 847 F.2d 301, 303 (6th Cir. 1998). The scope of judicial review in a social security case is limited to determining whether the Commissioner applied the proper legal standards in making her decision and whether there exists in the record substantial evidence supporting that decision. See Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). The Court may not conduct a de novo review of the case, resolve evidentiary conflicts, or decide questions of credibility. See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). It is the Commissioner who is charged with finding the facts relevant to an application for disability benefits, and her findings are conclusive provided they are supported by substantial evidence. See 42 U.S.C. § 405(g).
Substantial evidence is more than a scintilla, but less than a preponderance. See Cohen v. Sec'y of Dep't of Health & Human Servs., 964 F.2d 524, 528 (6th Cir. 1992). It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir. 1993). In determining the substantiality of the evidence, the Court must consider the evidence on the record as a whole and take into account whatever in the record fairly detracts from its weight. See Richardson v. Sec'y of Health & Human Servs., 735 F.2d 962, 963 (6th Cir. 1984). The substantial evidence standard presupposes the existence of a zone within which the decision maker can properly rule either way, without judicial interference. See Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (citation omitted). This standard affords to the administrative decision maker considerable latitude, and indicates that a decision supported by substantial evidence will not be reversed simply because the evidence would have supported a contrary decision. See Bogle, 998 F.2d at 347; Mullen, 800 F.2d at 545.
Plaintiff was 50 years old on the date of the Administrative Law Judge's (ALJ) decision. (Tr. 8, 30.) Plaintiff graduated highschool, attended one year of college, and previously worked as a cashier, hostess, pharmacy technician, and a polisher. (Tr. 31, 55-57.) Plaintiff applied for SSI on October 27, 2011, and DIB on December 5, 2011, complaining of degenerative disc disease, depression, anxiety, PTSD, neck pain, pinched nerve in her left shoulder, and ruptured discs in her back and neck. (Tr. 11, 67.) Her applications were denied on February 12, 2012. (Tr. 11.) Plaintiff thereafter requested a hearing before an ALJ. (Tr. 28.) On December 13, 2012, Plaintiff appeared before ALJ Kathleen Eiler with testimony offered by Plaintiff and a vocational expert (VE). (Tr. 28.) In a written decision on January 25, 2013, the ALJ determined that Plaintiff was not disabled under the Social Security Act. (Tr. 8-25.) The Appeals Council declined to review the ALJ's determination, making it the Commissioner's final decision. (Tr. 1-6.) Plaintiff thereafter initiated this action, seeking judicial review of the Commissioner's decision.
The Social Security regulations articulate a five-step sequential process for evaluating disability. See 20 C.F.R. §§ 404.1520(a-f), 416.920(a-f).
Plaintiff has the burden of proving the existence and severity of limitations caused by her impairments and that she is precluded from performing past relevant work through step four. Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). At step five, it is the Commissioner's burden "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.
The ALJ determined Plaintiff's claim failed at the fifth step of the evaluation. The ALJ initially found that Plaintiff had not engaged in substantial gainful activity since July 11, 2011, the Plaintiff's alleged onset date. (Tr. 13.) Second, the ALJ determined that Plaintiff had the severe impairments of: (1) degenerative disc disease; (2) anxiety disorder; (3) posttraumatic stress disorder;
(4) personality disorder not otherwise specified; and (5) a history of alcohol abuse. (Tr. 13.) At the third step, the ALJ considered whether Plaintiff met a listed impairment and 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. (Tr. 14-15.)
With respect to Plaintiff's residual functional capacity (RFC), the ALJ determined that Plaintiff retained the capacity to perform light work, except that:
(Tr. 15.) Continuing with step four, the ALJ determined that Plaintiff had no qualifying past relevant work. (Tr. 20.)
At the fifth step, the ALJ questioned the VE to determine whether there existed a significant number of jobs which Plaintiff could perform, her limitations notwithstanding. In response to the ALJ's questions, the VE testified that there existed approximately 31,400 regional jobs (defined as the lower peninsula in the State of Michigan) that a person with Plaintiff's RFC could perform. (Tr. 21, 57-59.) The vocational expert testified that this work included jobs as an office cleaner, production inspector, and office helper. (Tr. 57-59.) This represents a significant number of jobs. See Hall v. Bowen, 837 F.2d 272, 274 (6th Cir. 1988); McCormick v. Sec'y of Health & Human Servs., 861 F.2d 998, 1000 (6th Cir. 1988).
Thus, following the five steps, the ALJ determined Plaintiff was not disabled within the meaning of the Act.
In this district, plaintiffs in Social Security appeals are required to provide a statement of errors, so that the court can address the specific matters at issue between the parties. Plaintiff's counsel did not comply with the requirements of the Court's direction regarding filing of briefs, which directed him to enumerate specific issues on appeal to this Court. (ECF No. 10, PageID.465) ("Plaintiff's initial brief must contain a Statement of Errors, setting forth the specific errors of fact or law upon which Plaintiff seeks reversal or remand."). Rather, Plaintiff's counsel set forth a single generic argument:
(ECF No. 17, PageID.484).
Because Plaintiff's counsel failed to enumerate the claims as directed, the Court must frame the specific error of fact or law upon which Plaintiff seeks reversal or remand. The Court gleans the following issue from Plaintiff's brief:
While Plaintiff may have raised other cryptic arguments, the Court deems all other claims of error as waived. See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) ("issues 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 a most skeletal way, leaving the court to . . . put flesh on its bones").
Plaintiff disagrees with the ALJ's treatment of the medical opinions in the record, arguing that the ALJ erred in the discussion of her treating nurse practitioner, Heather Nolan, as well as the opinions of other medical consultants. The Court finds no error.
Prior to the administrative hearing, Heather Nolan, a nurse practitioner, filled out a medical source statement regarding Plaintiff's RFC.
(Tr. 19.) Plaintiff argues that the ALJ erred because the ALJ's treatment of Ms. Nolan's opinion "lacks the necessary articulation for the reviewing Court to trace the ALJ's path of reasoning." (ECF No. 17, PageID.486). The Court disagrees.
A nurse practitioner is not an "acceptable medical source." See 20 C.F.R. § 416.913(a), (d); see also Turner v. Astrue, 390 F. App'x 581, 586 (7th Cir. 2010). Only "acceptable medical sources" can: (1) provide evidence establishing the existence of a medically determinable impairment; (2) provide a medical opinion; and (3) be considered a treating source whose medical opinion could be entitled to controlling weight under the treating physician rule. See Titles II and XVI: Considering Opinions and Other Evidence from Sources Who are not `Acceptable Medical Sources' in Disability Claims; Considering Decisions on Disability by Other Governmental and Nongovernmental Agencies, SSR 06-3p (reprinted at 2006 WL 2329939, at * 2 (SSA Aug. 9, 2006)). The opinions of a nurse practitioner fall within the category of information provided by "other sources." Id. at * 2; see 20 C.F.R. § 404.1513(d). The social security rulings merely require that information from other sources be "considered." 2006 WL 2329939, at * 1, 4. This is not a demanding standard, and it was easily met here.
The ALJ invoked and followed the course of action recommended by SSR 06-03p:
These factors include:
2006 WL 2329939, at * 4. Here, the ALJ expressly discussed two of the above factors, including the consistency (or lack thereof) of Ms. Nolan's opinion with the other evidence of the record, and Ms. Nolan's area of expertise, indicating that she understood her responsibility to consider the opinion under SSR 06-03p. (Tr. 19.) Moreover, the ALJ's reasons are supported by substantial evidence. In her function report, Plaintiff stated she was able to prepare meals, do laundry and dishes, and take care of her dog. (Tr. 227-28.) Scans of Plaintiff's spine revealed mostly mild degenerative changes. (Tr. 266-67.) Dr. Michael Simpson examined Plaintiff for the State Disability Agency and found that she had an intact grip and her dexterity was unimpeded. Plaintiff could button clothing, pick up a coin and open a door. (Tr. 361.) She had no difficulty getting on and off the exam table, squatting, and walking on her heels and toes. (Tr. 361.)
Plaintiff seems to argue that the ALJ's consideration of Dr. Simpson's opinion was in error, because he admitted he had not reviewed earlier scans. (ECF No. 17, PageID.486). When an ALJ relies on a non-examining source who did not have the opportunity to review later submitted medical evidence, especially when that evidence reflects ongoing treatment, the Sixth Circuit requires "some indication that the ALJ at least considered these [new] facts before giving greater weight to an opinion that is not based on a review of a complete case record." Brooks v. Comm'r of Soc. Sec., 531 F. App'x 636, 642 (6th Cir. 2013) (internal citations and quotation marks omitted). Here, the ALJ explicitly discussed the scans mentioned by Dr. Simpson, noting that "the evidence shows that, while the claimant has some limitations from this impairment, these limitations are not disabling." (Tr. 16.) Accordingly, Plaintiff's claim lacks merit.
On May 15, 2012, Dr. Mila Bacalla, a non-examining medical consultant, affirmed the RFC determination that Plaintiff was capable of light work with some additional limitations. (Tr. 364.) Another consultant, Dr. Bruce Douglass, stated on February 7, 2012, that Plaintiff was capable of performing routine, 2-step tasks on a sustained basis. (Tr. 77.) The ALJ gave the opinions "significant weight" noting that the two doctors were experts in their field and that "[t]hese opinions are consistent with the claimant's treatment history, diagnostic imaging studies, the consultative examination findings, and the claimant's reported activities of daily living." (Tr. 19.) Plaintiff argues the ALJ erred in assigning more weight to the non-examining reviewers than Ms. Nolan, the nurse practitioner who had treated Plaintiff.
The opinions of the two consultative examiners, Dr. Simpson and Dr. Bacalla, were not entitled to any particular weight. Karger v. Comm'r of Soc. Sec., 414 F. App'x 739, 744 (6th Cir. 2011). An examining relationship is one of the factors that an ALJ should consider when weighing medical opinions. See 20 C.F.R. § 416.927(c); see also McClean v. Colvin, No. 3:11-cv-236, 2013 WL 4507807, at *8 (M.D. Tenn. Aug. 23, 2013) ("[R]espective examining and non-examining status [is] only one of several relevant factors[.]"). Consistency is another important factor, however: "Generally, the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion." 20 C.F.R. § 416.927(c)(4).
While the issue of RFC is reserved to the Commissioner, the ALJ was free to consider the doctors' opinions and determine what weight, if any, they should be given. "Social Security regulations recognize that opinions from non-examining state agency consultants may be entitled to significant weight, because these individuals are `highly qualified' and are `experts in Social Security disability evaluation.'" Cobb v. Comm'r of Soc. Sec., No. 1:12-cv-2219, 2013 WL 5467172, at *5 (N.D. Ohio Sept.30, 2013) (quoting 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i)); see Barker v. Shalala, 40 F.3d 789, 794 (6th Cir.1994). Moreover, "in appropriate circumstances, opinions from State agency medical and psychological consultants . . . may be entitled to greater weight than the opinions of treating or examining sources." Brooks v. Commissioner, 531 F. App'x 636, 642 (6th Cir. 2013). This is such an appropriate circumstance, and as discussed above, substantial evidence supports the ALJ's reasons for giving the consultants' opinions significant weight. Accordingly, Plaintiff's claim of error is denied.
For the reasons set forth herein, the Commissioner's decision will be
