ELLEN S. CARMODY, Magistrate Judge.
This is an action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review a final decision of the Commissioner of Social Security denying Plaintiff's claim for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) under Titles II and XVI of the Social Security Act. The parties have agreed to proceed in this Court for all further proceedings, including an order of final judgment. (ECF No. 9).
Section 405(g) limits the Court to a review of the administrative record and provides that if the Commissioner's decision is supported by substantial evidence it shall be conclusive. The Commissioner has found that Plaintiff is not disabled within the meaning of the Act. For the reasons stated below, the Court concludes that the Commissioner's decision is supported by substantial evidence. Accordingly, the Commissioner's decision is
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 and Human Services, 847 F.2d 301, 303 (6th Cir. 1988). 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 and Human Services, 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 and Human Services, 964 F.2d 524, 528 (6th Cir. 1992) (citations omitted). 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 and Human Services, 735 F.2d 962, 963 (6th Cir. 1984). As has been widely recognized, 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 48 years of age on his alleged disability onset date. (PageID.218). He successfully completed high school and previously performed the following work: extrusion/press helper, production/automobile assembly, press operator, and construction/roofer. (PageID.81). Plaintiff applied for benefits on February 7, 2013, alleging that he had been disabled since August 16, 2012, due to broken left ankle, right knee injury, right ankle injury, left shoulder injury, lower back pain, depression, neck injury, and arthritis. (PageID.218-28, 265). Plaintiff's applications were denied, after which time he requested a hearing before an Administrative Law Judge (ALJ). (PageID.139-217). On May 6, 2014, Plaintiff appeared before ALJ Luke Brennan with testimony being offered by Plaintiff and a vocational expert. (PageID.88-137). In a written decision dated May 27, 2014, the ALJ determined that Plaintiff was not disabled. (PageID.71-82). The Appeals Council declined to review the ALJ's determination, rendering it the Commissioner's final decision in the matter. (PageID.24-29). Plaintiff subsequently initiated this appeal pursuant to 42 U.S.C. § 405(g), seeking judicial review of the ALJ'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).
The burden of establishing the right to benefits rests squarely on Plaintiff's shoulders, and he can satisfy his burden by demonstrating that his impairments are so severe that he is unable to perform his previous work, and cannot, considering his age, education, and work experience, perform any other substantial gainful employment existing in significant numbers in the national economy. See 42 U.S.C. § 423(d)(2)(A); Cohen, 964 F.2d at 528. While the burden of proof shifts to the Commissioner at step five, Plaintiff bears the burden of proof through step four of the procedure, the point at which his residual functioning capacity (RFC) is determined. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997) (ALJ determines RFC at step four, at which point claimant bears the burden of proof).
The ALJ determined that Plaintiff suffers from (1) separation of the left AC joint; (2) multiple arthralgias; (3) left knee chronic ACL insufficiency; (4) status post painful hardware removal of the right knee; (5) chronic right ankle pain after undergoing open reduction internal fixation (ORIF); (6) degenerative disc disease at C4-5 and C5-6; and (7) depressive disorder, severe impairments that whether considered alone or in combination with other impairments, failed to satisfy the requirements of any impairment identified in the Listing of Impairments detailed in 20 C.F.R., Part 404, Subpart P, Appendix 1. (PageID.73-76).
With respect to Plaintiff's residual functional capacity, the ALJ determined that Plaintiff retained the capacity to perform light work subject to the following limitations: (1) he can lift/carry 20 pounds occasionally and 10 pounds frequently; (2) during an 8-hour workday he can stand/walk and sit for 6 hours each; (3) he can engage in frequent reaching with his left upper extremity; (4) he can frequently climb ramps and stairs; (5) he can occasionally climb ladders, ropes, and scaffold; and (6) he is capable of performing simple, routine tasks. (PageID.76).
The ALJ found that Plaintiff cannot perform his past relevant work at which point the burden of proof shifted to the Commissioner to establish by substantial evidence that a significant number of jobs exist in the national economy which Plaintiff could perform, his limitations notwithstanding. See Richardson, 735 F.2d at 964. While the ALJ is not required to question a vocational expert on this issue, "a finding supported by substantial evidence that a claimant has the vocational qualifications to perform
The vocational expert testified that there existed approximately 21,000 jobs in the state of Michigan, and approximately 1,150,000 jobs nationwide, which an individual with Plaintiff's RFC could perform, such limitations notwithstanding. (PageID.127-34). This represents a significant number of jobs. See Born v. Sec'y of Health and Human Services, 923 F.2d 1168, 1174 (6th Cir. 1990); Hall v. Bowen, 837 F.2d 272, 274 (6th Cir. 1988); Martin v. Commissioner of Social Security, 170 Fed. Appx. 369, 374 (6th Cir., Mar. 1, 2006). The ALJ concluded, therefore, that Plaintiff was not entitled to disability benefits.
In a single paragraph of his detailed 12-page opinion, the ALJ mistakenly made reference to a claimant other than Plaintiff. (PageID.76-77). Plaintiff argues that this oversight mandates that this matter be remanded. The Court disagrees. The paragraph in question does not concern the ALJ's analysis of the evidence or any legal issue. Instead, it is merely an introductory paragraph which sets the stage for the ALJ's discussion of the evidence. This does not make the oversight any less egregious, but contrary to Plaintiff's assertion it does not render the ALJ's decision invalid.
The ALJ correctly identified Plaintiff throughout the remainder of the opinion. The ALJ's discussion of the evidence was limited to the evidence in the present record. Thus, the error in question is simply the type of mistake that occurs when word processing software is utilized to prepare opinions. It is the same type of error that this Court — and Plaintiff's counsel — have made from time to time. Plaintiff has identified absolutely no authority to support his call for remand. The Court finds remand is not appropriate. See Shinseki v. Sanders, 556 U.S. 396, 407 (2009) (recognizing that the harmless error doctrine is intended to prevent reviewing courts from becoming "impregnable citadels of technicality"); Heston v. Commissioner of Social Security, 245 F.3d 528, 535-36 (6th Cir. 2001) (recognizing that remand to correct an error committed by the ALJ unnecessary where such error was harmless); Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) ("no principle of administrative law or common sense requires us to remand a case in quest of a perfect opinion unless there is reason to believe that the remand might lead to a different result"). Accordingly, this argument is rejected.
As noted above, the ALJ determined that Plaintiff was capable of performing a limited range of light work. Plaintiff argues that the ALJ's determination in this regard is deficient. Specifically, Plaintiff challenges the determination that he can stand/walk for six hours during an 8-hour workday. With respect to this particular issue, the ALJ stated:
(PageID.77-78).
The ALJ's assessment of the evidence is accurate and consistent with the record. The only evidence which undermines the ALJ's assessment is the opinion offered by Dr. Lindberg which, as discussed below, was properly discounted. Plaintiff bears the burden at step four of the sequential process to establish that he is limited to the extent alleged. Plaintiff has failed to do so. The ALJ's RFC determination is supported by substantial evidence. Accordingly, this argument is rejected.
On April 25, 2014, Plaintiff's treating physician, Dr. Kurt Lindberg, offered a sworn statement in response to questions posed by Plaintiff's counsel. (PageID.411-21). Dr. Lindberg reported that Plaintiff was limited to a greater extent than the ALJ recognized. Specifically, the doctor reported that Plaintiff was unable to sit or stand for six hours during an 8-hour workday and, moreover, was unable to lift more than 10 pounds. (PageID.415). The doctor also reported that Plaintiff was "severely depressed." (PageID.416). The ALJ found the doctor less than credible and, therefore, afforded his opinions "little weight." (PageID.78-79). Plaintiff argues that he is entitled to relief because the ALJ failed to articulate good reasons for discounting Dr. Lindberg's opinions.
The treating physician doctrine recognizes that medical professionals who have a long history of caring for a claimant and his maladies generally possess significant insight into his medical condition. See Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994). An ALJ must, therefore, give controlling weight to the opinion of a treating source if: (1) the opinion is "wellsupported by medically acceptable clinical and laboratory diagnostic techniques" and (2) the opinion "is not inconsistent with the other substantial evidence in the case record." Gayheart v. Commissioner of Social Security, 710 F.3d 365, 375-76 (6th Cir. 2013) (quoting 20 C.F.R. § 404.1527).
Such deference is appropriate, however, only where the particular opinion "is based upon sufficient medical data." Miller v. Sec'y of Health and Human Services, 1991 WL 229979 at *2 (6th Cir., Nov. 7, 1991) (citing Shavers v. Sec'y of Health and Human Services, 839 F.2d 232, 235 n.1 (6th Cir. 1987)). The ALJ may reject the opinion of a treating physician where such is unsupported by the medical record, merely states a conclusion, or is contradicted by substantial medical evidence. See Cohen, 964 F.2d at 528; Miller v. Sec'y of Health and Human Services, 1991 WL 229979 at *2 (6th Cir., Nov. 7, 1991) (citing Shavers v. Sec'y of Health and Human Services, 839 F.2d 232, 235 n.1 (6th Cir. 1987)); Cutlip v. Sec'y of Health and Human Services, 25 F.3d 284, 286-87 (6th Cir. 1994).
If an ALJ accords less than controlling weight to a treating source's opinion, the ALJ must "give good reasons" for doing so. Gayheart, 710 F.3d at 376. Such 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." This requirement "ensures that the ALJ applies the treating physician rule and permits meaningful review of the ALJ's application of the rule." Id. (quoting Wilson v. Commissioner of Social Security, 378 F.3d 541, 544 (6th Cir. 2004)). Simply stating that the physician's opinions "are not well-supported by any objective findings and are inconsistent with other credible evidence" is, without more, too "ambiguous" to permit meaningful review of the ALJ's assessment. Gayheart, 710 F.3d at 376-77.
In support of his decision to discount Dr. Lindberg's opinions, the ALJ stated the following:
(PageID.78-79).
The ALJ articulated specific reasons, which are more than supported by the record, for discounting the doctor's opinion. As the ALJ correctly observed, the medical evidence, including Dr. Lindberg's own treatment notes, do not support his opinions. A review of the doctor's testimony makes clear that his opinions were based too a great extent, if not almost exclusively, on Plaintiff's subjective allegations rather than the results of examination or objective testing. Furthermore, while Plaintiff takes great issue with the ALJ's observations regarding the manner in which the doctor was questioned, the ALJ's assessment is consistent with the record. In sum, the ALJ's decision to discount Dr. Lindberg's opinion is supported by substantial evidence.
In discounting Plaintiff's credibility, the ALJ considered Plaintiff's failure to participate in mental health treatment as well as his alcohol abuse. (PageID.77). Plaintiff argues that it was improper for the ALJ to consider his alcohol abuse when evaluating his credibility. Plaintiff further argues that before discounting his testimony for failure to obtain treatment, the ALJ was required to determine whether his failure to obtain treatment was the result of an inability to pay for such. The Court is not persuaded.
Plaintiff sought mental health treatment from a Michigan Community Mental Health Center which is obligated to provide mental health services regardless of the recipient's ability to pay. See Mich. Comp. Laws § 330.1810; see also, Free or Low Cost Mental Health Care, available at http://www.michigan.gov/mdhhs/0,5885,7-339-71547_2943_52115-203750--,00.html (last visited on July 9, 2016) (noting that when receiving treatment from a Community Mental Health Center, "[y]ou pay what you can afford based on your income"). Plaintiff was approved for services through Community Mental Health. (PageID.493). Thus, to the extent Plaintiff failed to seek treatment such was not due to an inability to pay for such. As for the ALJ's reference to Plaintiff's alcohol use, such has long been held to be appropriate. See, e.g., Arnone v. Commissioner of Social Security, 2012 WL 7658385 at *8 (W.D. Mich., Sept. 26, 2012) (collecting cases). Accordingly, this argument is rejected.
Plaintiff submitted to the Appeals Council evidence which was not presented to the ALJ. (PageID.32-64). The Appeals Council received the evidence, but nevertheless declined to overturn the ALJ's determination. This Court, however, is precluded from considering the evidence in question. In Cline v. Commissioner of Social Security, 96 F.3d 146 (6th Cir. 1996), the Sixth Circuit indicated that where the Appeals Council considers new evidence that was not before the ALJ, but nonetheless declines to review the ALJ's determination, the district court cannot consider such evidence when adjudicating the claimant's appeal of the ALJ's determination. Id. at 148; see also, Bass v. McMahon, 499 F.3d 506, 512-13 (6th Cir. 2007).
If Plaintiff can demonstrate, however, that this evidence is new and material, and that good cause existed for not presenting it to the ALJ, the Court can remand the case for further proceedings during which this new evidence can be considered. Cline, 96 F.3d at 148. To satisfy the materiality requirement, Plaintiff must show that there exists a reasonable probability that the Commissioner would have reached a different result if presented with the new evidence. Sizemore v. Secretary of Health and Human Serv's, 865 F.2d 709, 711 (6th Cir. 1988). Plaintiff bears the burden of making these showings. See Hollon ex rel. Hollon v. Commissioner of Social Security, 447 F.3d 477, 483 (6th Cir. 2006).
In assessing the evidence in question and declining to reverse the ALJ's decision, the Appeals Council stated that:
(PageID.25).
The Court agrees with the assessment by the Appeals Council. The evidence in question reveals that Plaintiff suffered a knee injury several months after the ALJ's decision. (PageID.32-53). The evidence also contains the results of a psychological consult examination conducted May 6, 2015, almost one year after the ALJ's decision. (PageID.60-64). The examiner first met with Plaintiff on this date, thus his conclusions, even assuming they are credible, cannot reasonably apply to the time period prior to the ALJ's decision. Accordingly, Plaintiff is not entitled to a Sentence Six remand for the consideration of this evidence.
For the reasons articulated herein, the Court concludes that the ALJ's decision is supported by substantial evidence. Accordingly, the Commissioner's decision is
2. An individual who does not have a "severe impairment" will not be found "disabled" (20 C.F.R. §§ 404.1520(c), 416.920(c));
3. If an individual is not working and is suffering from a severe impairment which meets the duration requirement and which "meets or equals" a listed impairment in Appendix 1 of Subpart P of Regulations No. 4, a finding of "disabled" will be made without consideration of vocational factors. (20 C.F.R. §§ 404.1520(d), 416.920(d));
4. If an individual is capable of performing her past relevant work, a finding of "not disabled" must be made (20 C.F.R. §§ 404.1520(e), 416.920(e));
5. If an individual's impairment is so severe as to preclude the performance of past work, other factors including age, education, past work experience, and residual functional capacity must be considered to determine if other work can be performed (20 C.F.R. §§ 404.1520(f), 416.920(f)).