Germany-Johnson v. Commissioner of Social Security ( 2008 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0677n.06
Filed: November 5, 2008
07-3168
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KAREN GERMANY-JOHNSON, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
COMMISSIONER OF SOCIAL ) NORTHERN DISTRICT OF OHIO
SECURITY, )
)
Defendant-Appellee. )
Before: DAUGHTREY and GILMAN, Circuit Judges; EDMUNDS,* District Judge.
PER CURIAM. In this appeal challenging the denial of Social Security disability
benefits, claimant Karen Germany-Johnson assigns as error the “second step” ruling by
the administrative law judge (ALJ) that her medical condition was not severe enough to
advance the sequential evaluation process, as well as the ALJ’s failure to give appropriate
deference to the opinion of her treating physician. Denial of benefits was affirmed by the
Appeals Council and by the district court. We conclude that the ALJ erred as a legal
matter by (1) applying the wrong standard of review at the second step of the five-step
evaluation process and (2) failing to comply with the Social Security Administration’s rule
*
The Hon. Nancy G. Edmunds, United States District Judge for the Eastern District of
Michigan, sitting by designation.
07-3168
Germany-Johnson v. Commissioner of Social Security
that a decision denying benefits must include specific reasons for rejecting the opinion of
a treating physician, a requirement reiterated in our opinion in Wilson v. Commissioner of
Social Security, 378 F.3d 541 (6th Cir. 2004). As a result, this case must be remanded to
the ALJ for further consideration.
I. FACTUAL AND PROCEDURAL BACKGROUND
After working steadily from 1969 to 1996, with a four-year break in the early 1980s
to start a family, Germany-Johnson was involved in an automobile accident in 1996 that
apparently caused neck and back pain, which in turn exacerbated nerve damage she had
experienced as the result of three surgeries on her lower spine dating back to 1972.
Unable to maintain full-time work, she held several part-time or short-term jobs over the
next six years, while she was in the care of her primary physician, Dr. Mark Meacham. In
1998, she was seen by an orthopedic specialist, Dr. John Collis, who diagnosed her with
chronic shoulder and neck pain due to arthritic disc disease and severe pain due to C5 disc
herniation and extrusion. Her efforts at physical therapy resulted in the onset of vertigo,
which was serious enough to require hospitalization. In 2000, Germany-Johnson
developed an ulcer due to taking medication for her neck and low back pain. Two years
later, Dr. Meacham referred Germany-Johnson to Dr. Raynor, a rheumatologist, who found
that she was “likely” suffering from fibromyalgia.
In November 2002, the claimant was also referred by Dr. Meacham to Dr. Gardziola,
a neurologist. Dr. Gardziola recognized that she was the victim of chronic pain but said
-2-
07-3168
Germany-Johnson v. Commissioner of Social Security
that he could not easily identify its source because it did not fit a neuropathic pattern. He
nevertheless noted that Germany-Johnson had a long history of muscle pain and spasm.
Germany-Johnson applied for disability benefits in 2002. In December of that year,
she was seen by Dr. Alok K. Bhaiji, a consulting physician chosen by the Social Security
Administration. He found that the claimant had vertigo and herniated discs and ordered
an MRI. It revealed Germany-Johnson had annular bulging at the L4-L5 area and left-
sided disc herniation at L5-S1. Another MRI taken of the cervical spine revealed bony
degenerative changes in her neck. Other diagnoses included spondylosis and lordotic
reversal, scoliosis with pelvic tilt, and a peptic ulcer caused by the various pain medications
that Germany-Johnson was taking.
In February 2003, Dr. Meacham listed diagnoses of myositis, cervical syndrome,
and myalgia and noted that the claimant’s pain was at a level six out of ten. That month
Dr. Gardziola found that the claimant’s condition remained unchanged and that she
continued to have pain and weakness. By the end of February, Dr. Meacham had written
a letter to the claimant explaining that he had treated her for several years and that he had
“NO doubts that the combination of medical diagnoses you have contribute to significant
difficulty with maintaining gainful employment.” A year later, on January 2, 2004, Dr.
Meacham wrote another letter, noting that the claimant had been his patient since the mid-
1990's and had undergone exhaustive evaluations of her physical symptoms by many
specialists, without any resolution of her neck pain and fibromyalgia symptoms. He
-3-
07-3168
Germany-Johnson v. Commissioner of Social Security
concluded that Germany-Johnson was unable to sustain work and that her symptoms were
debilitating.
In applying for disability benefits in 2002, Germany-Johnson described nerve pain
in her back and neck, painful muscle spasms, and numbness in her coccyx, saying that the
pain made it difficult to perform normal tasks like walking, sitting, standing, doing laundry,
lifting cookware, and grocery shopping, among others. She also said that she needed help
from her family in preparing meals and house-cleaning and that she was largely
housebound. Her application was denied initially and also upon reconsideration.
Germany-Johnson then requested a hearing before an administrative law judge, at
which she appeared with counsel and testified. A medical expert and a vocational expert
also testified. The ALJ determined that Germany-Johnson was not disabled, finding that
she “d[id] not have any impairment or impairments [that] significantly limit her ability to
perform basic work-related activities” and, therefore, “d[id] not have a severe impairment.”
The Appeals Council denied the claimant’s request for review and a magistrate judge,
sitting by agreement as the district court, found that there was substantial evidence to
support the decision of the administrative law judge and upheld that decision.
II. DISCUSSION
A. Standard of Review
-4-
07-3168
Germany-Johnson v. Commissioner of Social Security
We exercise de novo review of district court decisions in Social Security cases. See
Valley v. Comm’r of Soc. Sec., 427 F.3d 388, 390 (6th Cir. 2005). The underlying findings
of the administrative law judge are reviewed for substantial supporting evidence. See 42
U.S.C. § 405(g). Substantial evidence is “‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Richardson v. Perales, 402 U.S. 389,
401 (1971)(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
Under applicable Social Security regulations, the merit of a disability claim is
determined by following a sequential five-step analysis. See 20 C.F.R. § 404.1520. The
ALJ must determine, first, whether the claimant is working; second, whether the alleged
impairment is severe; third, whether the impairment meets or equals a listed impairment
and hence has a certain level of severity; fourth, whether the claimant can still do past
relevant work; and, finally, when considering the claimant’s age, education, work
experience, and residual functional capacity, whether the claimant can do other work. See
20 C.F.R. § 404.1520(a)(4). The burden is on the claimant to satisfy the first four steps.
See Longworth v. Comm’r Soc. Sec. Admin., 402 F.3d 591, 595 (6th Cir. 2005). In this
case, the ALJ followed the required evaluation only through the second step, finding that
the claimant was not disabled because her impairments were not “severe.”
B. Severity of Impairment
-5-
07-3168
Germany-Johnson v. Commissioner of Social Security
The step-two severity determination is phrased in the negative: if a claimant does
not have a severe medically determinable physical or mental impairment, for at least twelve
months, or a combination of impairments that is severe, the claimant is not disabled. 20
C.F.R. § 404.1520. In this circuit, the claimant’s burden of proof at step two “has been
construed as a de minimis hurdle in the disability determination process . . . [A]n
impairment can be considered not severe only if it is a slight abnormality that minimally
affects work ability regardless of age, education, and experience.” Higgs v. Bowen, 880
F.2d 860, 862 (6th Cir. 1988) (emphasis added) (citing Farris v. Sec’y of Health and Human
Serv., 773 F.2d 85, 89-90 (6th Cir. 1985)). See also Bowen v. Yuckert, 482 U.S. 137, 158-
59 (1987) (“Only those claimants with slight abnormalities that do not significantly limit any
‘basic work activity’ can be denied benefits without undertaking this vocational analysis.”)
(O’Connor, J., concurring). Furthermore, step-two severity review is used primarily to
“screen out totally groundless claims.” Farris, 773 F.2d at 89.
Clearly, Germany-Johnson’s impairments were not groundless under 20 C.F.R. §
404.1521, because the record establishes that, without question, they interfered with her
basic work activities. Basic work activities are defined as “the abilities and aptitudes
necessary to do most jobs” such as “(1) physical functions such as walking, standing,
sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing,
hearing and speaking; (3) understanding, carrying out, and remembering simple
instructions; (4) use of judgment; (5) responding appropriately to supervision, co-workers
and usual work situations; and (6) dealing with changes in a routine work setting.” 20
-6-
07-3168
Germany-Johnson v. Commissioner of Social Security
C.F.R. § 404.1521. The record reveals to our satisfaction that the claimant’s back and
neck pain and fibromyalgia limited her ability to work. Beyond the personal anecdotes from
Germany-Johnson listed above, Dr. Bhaiji found from her symptoms that she could have
difficulty walking and lifting, and Dr. Meacham, the claimant’s treating physician, described
her as totally disabled from working.
The question in this appeal thus becomes whether there is also substantial evidence
to support the opposite conclusion – that the claimant’s impairments are so slight that they
have little, if any, impact on her work capacity. If substantial evidence supports the
decision of the administrative law judge, “this Court will defer to that finding ‘even if there
is substantial evidence in the record that would have supported an opposite conclusion.’”
Longworth, 402 F.3d at 595 (quoting Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390
(6th Cir. 2004)). See also Cutlip v. Sec’y of Health and Human Serv., 25 F.3d 284, 286
(6th Cir. 1994) (“If the Secretary’s decision is supported by substantial evidence, it must
be affirmed even if the reviewing court would decide the matter differently, see Kinsella
v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983), and even if substantial evidence also
supports the opposite conclusion, see Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)
(en banc).”).
In this circuit, “substantial evidence means more than a scintilla of evidence. It
means such relevant evidence as a reasonable mind would accept as adequate to support
a conclusion.” Mowery v. Heckler, 771 F.2d 966, 970 (6th Cir. 1985) (quoting Lashley v.
-7-
07-3168
Germany-Johnson v. Commissioner of Social Security
Sec’y of Health and Human Serv., 708 F.2d 1048, 1053 (6th Cir. 1983). Moreover,
“[d]isability may be established by a claimant suffering from a variety of medical problems
no one of which might be sufficiently disabling to prevent substantial gainful employment,
but when taken together have that result.” Mowery, 771 F.2d at 971. As in Mowery,
although the ALJ and the district court gave what can best be described as “lip service”
to this principle, we conclude that both courts came to the wrong conclusion with regard
to this claimant. Id.
The ALJ acknowledged in his order that “the record indicates claimant has
diagnoses of fibromyalgia with degenerative disc disease of the cervical and lumbar
spines.” He concluded, however, that the record also “establishes that these impairments
are not severe impairments,” based upon what he identified as the claimant’s “normal”
characteristics. For example, after describing diagnoses of annular bulging, disc
herniation, cervical disc disease, and bony degeneration, the ALJ pointed to the
“essentially normal” EMG and nerve conduction. However, he neglected to mention that
the report also suggested that further evaluation by MRI was dictated by “markedly
prolonged peroneal and posterior tibial F waves.” The administrative law judge next
alluded to physical examinations that have “noted normal range of motion of the cervical
spine, lumbar spine, as well as normal range of motion of the upper and lower extremities.”
But, the source of these findings, although not cited, was the physical examination
conducted by Dr. Bhaiji, the consulting physician hired by the Social Security
Administration, who also noted the claimant could have difficulty with walking and lifting,
-8-
07-3168
Germany-Johnson v. Commissioner of Social Security
two basic work activities under 20 C.F.R. § 404.1521, and who recommended a further
neurological evaluation of Germany-Johnson.
Pointing to the claimant’s “normal sensation, normal reflexes, and normal muscle
strength. . . [and also] normal gait,” the ALJ concluded that “while the claimant alleges that
she is disabled by her pain[,] her complaints are not supported by the overall objective
medical evidence in the record which is normal.” However, one of the bases for these
“normal” findings was the report of Dr. Gardziola that also described the claimant’s “long
history of muscle pain and spasm . . . [from] pinching in her neck, which creates a chain
reaction to pinching and pain in her buttock, legs, feet, shoulders, and neck.”
Although the administrative law judge focused on what he perceived to be “normal”
findings by the medical experts, the caveats provided by those same doctors indicate that
– taking the record as a whole and including both the doctors who provided normal findings
and those who found the claimant had a severe disability – there is not substantial
evidence to support the administrative law judge’s finding that the claimant’s impairments
are not “severe,” at least for purposes of step-two analysis. See Hurst v. Sec’y of Health
and Human Serv., 753 F.2d 517, 519 (6th Cir. 1985) (“failure to consider the record as a
whole undermines the Secretary’s conclusion”). Indeed, in our judgment the evidence in
the record that can be considered to establish Germany-Johnson’s condition as “normal”
is minimal and is offset by the not-normal findings in the same reports.
-9-
07-3168
Germany-Johnson v. Commissioner of Social Security
The administrative law judge also based his finding that the claimant’s disability is
not severe on the nature of her prescribed medications, noting that they are commonly
used to treat mild symptoms and concluded from that fact “that the claimant [h]as an
impairment which is so slight, it would not be expected to interfere with her ability to work
or a non-severe impairment.” But this observation wholly overlooks evidence in the record
that Germany-Johnson took these medications in such large doses that she developed an
ulcer and had to stop taking them. Indeed, Dr. Cain found the claimant had an ulcer due
to “anti-inflammatory drug use.” Moreover, as noted by her treating physician, Dr.
Meacham, the prescription drugs Vioxx and Celebrex were ineffective to control Germany-
Johnson’s pain symptoms, as was Tylenol. Although the use of relatively mild medications
may be taken to indicate that the claimant does not suffer from “severe disabling pain,”
Maher v. Sec’y of Health and Human Serv., 898 F.2d 1106, 1109 (6th Cir. 1989) (citing
Kimbrough v. Sec’y of Health and Human Serv., 801 F.2d 794, 797 (6th Cir. 1986)), the
Tenth Circuit has held that when the claimant suffers from the side effects of using pain
relievers, an ALJ cannot rely on the non-use of those same pain relievers to evaluate the
claimant’s impairment. See Frey v. Bowen, 816 F.2d 508, 517 (10th Cir. 1987) (“Unrefuted
testimony by both [doctors] indicated that anti-inflammatory and anti-pain medication
appropriate for [the claimant’s] degenerative arthritic condition was contraindicated
because of the side effects of stomach irritation. Although pain abatement would enhance
[the claimant’s] ability to perform sedentary work, the side effects would interfere with
restoration of his ability to work.”).
- 10 -
07-3168
Germany-Johnson v. Commissioner of Social Security
The ALJ also focused on the testimony of Dr. Hershel Goren, one of the agency’s
medical experts, but Dr. Goren examined only the claimant’s medical file, not the claimant
herself, in preparation for testimony regarding the validity of the other expert’s diagnoses,
the degree of the claimant’s dysfunction, and both her mental and her physical capacities.
Dr. Goren concluded that the claimant’s symptoms did not equal any Social Security
Administration listings, that she would not be impaired in a work setting, and that she would
have no restrictions on her functional capacity. He based his conclusions on his
determination that her symptoms did not necessarily correlate with any of the MRI
abnormalities and, therefore, that those abnormalities thus could not be considered
objective findings.
Our review convinces us that, even after extending appropriate deference to the
ALJ’s decision, the denial of relief at step two was not supported by substantial evidence.
First, the opinion of a non-examining physician such as Dr. Goren should be given
relatively little weight “if it is contrary to the opinion of the claimant’s treating physician.”
Shelman v. Heckler, 821 F.2d 316, 321 (6th Cir. 1987) (“[t]he testimony of [non-examining
physician] cannot provide a sufficient basis for rejecting the opinions of plaintiff’s treating
physicians . . . ”) (citing Broughton v. Heckler, 776 F.2d 960, 962 (11th Cir. 1985). See
also Cohen v. Sec’y Health and Human Serv., 964 F.2d 524, 528 (6th Cir. 1992) (“medical
opinions and diagnoses of treating physicians are entitled to great weight, and if
uncontradicted, are entitled to complete deference”) (citing King v. Heckler, 742 F.2d 968,
973 (6th Cir. 1984)). In this case, Dr. Goren’s opinion contradicts that of the claimant’s
- 11 -
07-3168
Germany-Johnson v. Commissioner of Social Security
treating physician, Dr. Meacham, whose opinion was largely, if not completely, overlooked
by both the ALJ and the district court.
In giving controlling weight to Dr. Goren’s opinion and to only selective portions of
reports by the agency’s other consulting physician, Dr. Bhaiji, and the claimant’s secondary
physician, Dr. Gardziola, the ALJ failed to give effect to the agency’s “treating source”
regulation, 20 C.F.R. § 404.1527(d)(2). That provision requires an administrative law judge
to give more weight to opinions from treating sources if the treating physician’s opinion is
“well-supported by medically acceptable clinical and laboratory diagnostic techniques.”
Moreover, the regulation also requires the judge to state “good” reasons for the weight
given the opinion of a claimant’s treating physician. 20 C.F.R. § 404.1527(d)(2). Hence,
a decision denying benefits “must contain specific reasons for the weight given to the
treating source’s medical opinion, 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.”
Soc. Sec. Rul. 96-2p 1996 WL 374188 at *5 (1996). See also Wilson v. Comm’r of Soc.
Sec., 378 F.3d 541, 544 (6th Cir. 2004).
The substantive arm of the regulation, referred to in this circuit as the “treating
physician rule,” creates “a presumption, albeit a rebuttable one, that the opinion of a
treating physician is entitled to great deference, its non-controlling status notwithstanding.”
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007). Even if the treating
- 12 -
07-3168
Germany-Johnson v. Commissioner of Social Security
physician’s opinion is not given controlling weight, the administrative law judge must still
determine how much weight is appropriate for the opinion, considering: (1) the length,
frequency, nature, and extent of the treatment relationship; (2) consistency of the
physician’s conclusions and the evidence to support them; and (3) the specialization of the
treating physician. See id.
Once the weight to be given the opinion is determined, the procedural arm of the
regulation requires the ALJ to “provide good reasons for discounting treating physicians’
opinions, reasons that are 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.” Id. (internal quotation marks omitted). These reasons are particularly
important when the treating physician has diagnosed the claimant as disabled. See id.
As we held in Wilson, “A court cannot excuse the denial of a mandatory procedural
protection simply because, as the Commissioner urges, there is sufficient evidence in the
record for the ALJ to discount the treating source’s opinion and, thus, a different outcome
on remand is unlikely.” 378 F.3d at 546. Ultimately, “a failure to follow the procedural
requirement of identifying the reasons for discounting the opinions and for explaining
precisely how those reasons affected the weight accorded the opinions denotes a lack of
substantial evidence, even where the conclusion of the ALJ may be justified based upon
the record.” Rogers, 486 F.3d at 243.
- 13 -
07-3168
Germany-Johnson v. Commissioner of Social Security
Here, the only evidence that the ALJ cited to refute the severity of the claimant’s
diagnoses was the “normal” findings of two non-treating doctors. But, the judge was
selective in parsing the various medical reports and simply failed altogether to address the
findings of Dr. Meacham, the physician who had been treating the claimant for almost ten
years, beyond merely setting them out in narrative fashion. He apparently did not give any
weight to them, nor did he explain why he had discounted the treating physician’s opinion
that the claimant was disabled from working, beyond saying that “her complaints are not
supported by the overall objective medical evidence in the record which is normal.” The
record thus establishes as a matter of law that the case must be remanded to the
administrative law court for further consideration. See Wilson, 378 F.3d at 544.
On remand, the administrative law judge is further directed to evaluate Germany-
Johnson’s claims under the standard appropriate for claims of fibromyalgia. In general, an
“impairment must result from anatomical, physiological, or psychological abnormalities
which can be shown by medically acceptable clinical and laboratory diagnostic techniques.
A physical or mental impairment must be established by medical evidence consisting of
signs, symptoms, and laboratory findings, not only by [the claimant’s] statement of
symptoms.” 20 C.F.R. § 416.908. Fibromyalgia, however, can be confirmed as a severe
impairment without objective testing. See Rogers, 486 F.3d at 243 (“On at least one
occasion, we have recognized that fibromyalgia can be a severe impairment that, unlike
medical conditions that can be confirmed by objective testing, fibromylagia patients present
no objectively alarming signs.”). In fact, persons suffering from fibromyalgia “manifest
- 14 -
07-3168
Germany-Johnson v. Commissioner of Social Security
normal muscle strength and neurological reactions and have a full range of motion.”
Preston v. Sec’y of Health and Human Serv., 854 F.2d 815, 820 (6th Cir. 1988). As a
result, we have previously concluded that “[t]here are no objective tests which can
conclusively confirm the disease.” Id. at 818. Instead, the standard for diagnosing
fibromyalgia in this circuit involves testing a series of focal points for tenderness and ruling
out other possible conditions through objective medical and clinical trials. See Rogers, 486
F.3d at 244.
As in Rogers, the ALJ in this case did not discuss, let alone apply, the correct
standard for assessing a diagnosis of fibromyalgia in his decision, instead emphasizing and
basing his denial of benefits on “normal” physical findings, i.e., normal muscle strength,
normal range of motion, and normal gait. But for obvious reasons, these findings bore little
relevance to Dr. Meacham’s diagnosis of fibromyalgia. See Rogers, 486 F.3d at 245 (“in
light of the unique evidentiary difficulties associated with the diagnosis and treatment of
fibromyalgia, opinions that focus solely upon objective evidence are not particularly
relevant”).
Finally, we note the Commissioner’s contention that remanding this case for further
consideration would be futile if, as the Commissioner insists, the claimant will fail at a later
point in the sequential determination of disability. However, we have held that it is
“inappropriate” to speculate concerning the ultimate outcome when an administrative law
judge stopped his or her evaluation at a premature step in the sequential analysis, because
- 15 -
07-3168
Germany-Johnson v. Commissioner of Social Security
the remaining steps are for the administrative law judge to consider in the first instance.
See Farris, 773 F.2d at 90 (“Since the ALJ stopped at the severity stage in the evaluation
process and did not reach the question of whether Mrs. Farris’[s] disorder met or exceeded
the severity of a listed impairment, it is inappropriate for us to consider these questions at
this juncture in the case, although they must be determined by the ALJ on remand.”).
III. CONCLUSION
For the reasons set out above, we REVERSE the judgment of the district court and
REMAND this case to the administrative law court for further consideration of the
claimant’s application for disability benefits.
- 16 -
07-3168
Germany-Johnson v. Commissioner of Social Security
RONALD LEE GILMAN, Circuit Judge, concurring. I concur in the majority
opinion, but write separately because I disagree with the majority’s conclusion that the
record lacks substantial evidence to support the ALJ’s finding that Germany-Johnson is not
disabled. Nevertheless, I agree that the ALJ erred in failing to explain the diminished
weight that he attributed to the opinion of Germany-Johnson’s treating physician, and
would therefore remand the case for further consideration, but only on this narrower
ground.
I agree with the majority that the record is replete with evidence that
Germany-Johnson has impairments. Indeed, this conclusion is not disputed by any of the
physicians who either examined Germany-Johnson or reviewed her file, including the
Social Security Administration’s (SSA’s) own Dr. Goren. Even the ALJ acknowledged that
Germany-Johnson suffers from the impairments of “fibromyalgia with degenerative disc
disease of the cervical and lumbar spines.” (JA 23) But he ultimately concluded that
“these impairments are not severe impairments.” (JA 23)
The majority concludes that “the evidence that can be considered to establish
Germany-Johnson’s condition as ‘normal’ is minimal and is largely rebutted by the not-
normal findings in the same reports.” (Maj. op. 9) Yet the medical documents on record
show that the various tests conducted on Germany-Johnson repeatedly and consistently
showed “normal” results. And where abnormalities were identified, the record lacks any
information as to their severity.
- 17 -
07-3168
Germany-Johnson v. Commissioner of Social Security
Dr. Raynor, for example, as the claimant’s treating rheumatologist, found that her
gait and muscle strength were “normal” and that her physical exam was “unremarkable.”
(JA 109) Another examining physician, Dr. Bhaji, found, among other things, that her
reflexes and the range of motion in her upper and lower extremities were “normal.”
(JA 118) He also concluded that she would have no difficulty with work-related activities
such as sitting, standing, and carrying objects, but that she may have difficulty walking and
lifting. (JA 119) Dr. Gardziola, Germany-Johnson’s treating neurologist, documented the
fact that she experienced pinching and numbness, but said that she exhibited full strength
and that he could not easily identify her chronic pain. He did not come to any further
conclusions about the severity of her impairments, and recommended that she undergo
MRI and nerve-conduction tests. (JA 141) Dr. Burdette, who did the nerve-conduction
studies, concluded that the results were “within the broad limits of normal for a patient of
this age.” (JA 132) The radiologist, Dr. Rosenfeld, ran a series of MRI tests and found the
results to be almost entirely “normal,” with the exception of a herniated disc, “annular
bulging,” “diffuse distribution,” and “bony degenerative changes.” (JA 125-29) He did not,
however, characterize the effect or severity of these problems. (JA 125-29) And Dr.
Goren, the SSA’s medical expert, testified that Germany-Johnson did not have “objective
findings to support her complaints.” (JA 23)
Although “not-normal” findings in Germany-Johnson’s medical record might in fact
establish that she has impairments, this court has held that the existence of such
impairments does not alone lead to the conclusion that they are (or are not) severe. See
- 18 -
07-3168
Germany-Johnson v. Commissioner of Social Security
Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (“[T]he mere diagnosis of [an
impairment], of course, says nothing about the severity of the condition.”). Where, as here,
a claimant is found to have impairments, but the tests come back either negative or in the
normal range, I do not believe that the record supports a finding that the impairments are
severe. See, e.g., Crady v. Sec’y of Health & Human Servs., 835 F.2d 617, 620-21 (6th
Cir. 1987) (holding that the ALJ was justified in determining that the claimant’s complained-
of knee condition was “not a severe impairment” where post-operative tests showed no
restriction of motion and “only minor degenerative joint changes” in that knee, and x-ray
results “were essentially within normal limits”). I believe that the test results provide the
most reliable and objective basis for determining the degree to which any of Germany-
Johnson’s impairments impacts the claimant’s physical abilities or activities. And the test
results in this case indicate that she has “normal” function, despite her impairments.
To be sure, Dr. Meacham, Germany-Johnson’s treating physician, sent a letter to
her in 2003 stating that he had no doubts that she would face “significant difficulty with
maintaining gainful employment,” and sent her another letter in 2004 stating that her
symptoms were “debilitating.” (JA 145) The SSA’s so-called “treating source” regulation,
20 C.F.R. § 404.1527(d)(2), “requires an administrative law judge to give more weight to
opinions from treating sources if the treating physician’s opinion is ‘well-supported by
medically acceptable clinical and laboratory diagnostic techniques.’” (Maj. op. 12
(emphasis added)). Thus the opinion of a treating physician is generally given greater
weight than that of other examining physicians. Allen v. Califano, 613 F.2d 139, 145 (6th
- 19 -
07-3168
Germany-Johnson v. Commissioner of Social Security
Cir. 1980). But “such opinions receive great weight only if they are supported by sufficient
clinical findings and are consistent with the evidence.” Bogle v. Sullivan, 998 F.2d 342,
347-348 (6th Cir. 1993). An ALJ “is not bound by conclusory statements of doctors,
particularly where they are unsupported by detailed objective criteria and documentation.”
Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001) (citation omitted).
The medical documentation that Dr. Meacham submitted provides little, if any,
support for his conclusions. His record of each of Germany-Johnson’s office visits consists
only of one or two pages of not-very-detailed notes in which he documents her complaints
as she described her symptoms to him, and simply lists his diagnoses without elaboration.
But he makes no mention of any method or test he used to diagnose her symptoms, or to
independently confirm or objectively evaluate the severity of those symptoms. (JA 145-56,
172-75, 183) In one case, he explicitly noted “no clinical evidence on exam.” (JA 149)
Nevertheless, the ALJ failed to comply with the requirement that he “always give good
reasons in [his] . . . decision for the weight [he gives to the] treating source’s opinion.”
20 C.F.R. § 404.1527(d)(2). This alone is grounds for reversal. See Wilson v. Comm’r of
Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (citing 20 C.F.R. § 404.1527(d)(2) and holding
that “[a]lthough substantial evidence otherwise supports the decision of the Commissioner
in this case, reversal is required because the agency failed to follow its own procedural
regulation” that mandates a discussion of the weight given to the treating
physician’s opinion).
- 20 -
07-3168
Germany-Johnson v. Commissioner of Social Security
Germany-Johnson ultimately bears the burden of proving the severity of her
impairments. See Murphy v. Sec’y of Health & Human Servs., 801 F.2d 182, 185 (6th Cir.
1986). Although I am sympathetic to her situation, I cannot say on the basis of this record
that she has met that burden, or that the ALJ erred in finding that her impairments are not
severe. But because the ALJ failed to state his reasons for the decreased weight that he
attributed to the opinion of Germany-Johnson’s treating physician, I concur in the majority
opinion’s decision to reverse the district court’s judgment and remand the case to the ALJ
for further consideration.
- 21 -