Alyson Luukkonen v. Comm'r of Social Security , 653 F. App'x 393 ( 2016 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0345n.06
No. 15-1561
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Jun 22, 2016
DEBORAH S. HUNT, Clerk
ALYSON LUUKKONEN,
Plaintiff-Appellant,
v.
ON APPEAL FROM THE UNITED
COMMISSIONER OF SOCIAL STATES DISTRICT COURT FOR THE
SECURITY, WESTERN DISTRICT OF MICHIGAN
Defendant-Appellee.
________________________________/
BEFORE: COLE, Chief Judge; CLAY and GIBBONS, Circuit Judges.
CLAY, Circuit Judge. Plaintiff Alyson Luukkonen (“Plaintiff”) appeals from the
district court’s order upholding the Commissioner of Social Security’s (“Commissioner”) denial
of Plaintiff’s application for Supplemental Security Income (“SSI”) under Title XVI of the
Social Security Act, 42 U.S.C. §§ 1381–1383f. For the reasons discussed below, we AFFIRM.
BACKGROUND
Plaintiff filed an application for SSI on January 24, 2011. At that time, she was twenty-
four years old and had no prior work experience. Her claim for disability was supported by
medical records, reports from physicians and psychologists, and standard forms and
questionnaires prepared shortly after her application was submitted. For example, Plaintiff filled
out a “Function Report” form as part of her application. In that report, Plaintiff asserted that she
suffered from, inter alia, chronic pain, difficulty concentrating, short-term memory loss,
No. 15-1561
migraines, poor sleep, depression, irritable bowel syndrome (“IBS”), chronic bladder infections,
and allergies. She also stated that, depending on the severity of her symptoms at any particular
time, she had trouble performing various physical tasks—e.g. lifting, standing, reaching, and
walking—and that she sometimes required assistance with dressing and bathing. She also
reported difficulty with following instructions.
Plaintiff attributed many of her physical and mental limitations to fibromyalgia.1 She
also claimed to suffer from body dysmorphic disorder (“BDD”),2 which manifested as a
reluctance to socialize, constant mirror checking, compulsive behavior, a need to wear
sunglasses around strangers, and low self-esteem. On the other hand, when she was feeling well,
Plaintiff enjoyed working on arts and crafts, “surfing” the internet, and watching television. She
also stated that she had a boyfriend and that she kept in touch with friends using her computer.
She would, on occasion, do her own shopping.
In April 2011, at the request of Michigan’s Disability Determination Service, Plaintiff
was evaluated by consultative psychologist Dr. Steve Geiger. During her evaluation, Plaintiff
reported the same symptoms that were described in her Function Report. Plaintiff also told Dr.
Geiger that she lived with her grandparents and that they did her laundry, housekeeping, and
meal preparation, and that they were her sole source of financial support. Dr. Geiger reported
that Plaintiff’s clothing was neat and clean, and her grooming and hygiene were good. She had
good contact with reality, was pleasant, and was oriented to person, place, and time. Dr. Geiger
1
The Social Security Administration describes fibromyalgia as “a complex medical
condition characterized primarily by widespread pain in the joints, muscles, tendons, or nearby
soft tissues that has persisted for at least 3 months.” SSR 12-2p, 2012 WL 3104869, at *2 (July
25, 2012).
2
BDD is “a mental disorder in which a normal-appearing person is either preoccupied
with some imagined defect in appearance or is overly concerned about some very slight physical
anomaly.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 549 (32d ed. 2012).
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also reported Plaintiff’s performance on a number of simple tests: Plaintiff “remembered 7 digits
forward and 4 digits backward;” she “remembered 2 of 3 objects after three-minute delay;” she
could perform basic mathematical calculations, including counting backwards from 100 by 7s;
she could explain common proverbs. (R. 10-5, PageID 504–05.) At the conclusion of his report,
Dr. Geiger opined:
I believe [Plaintiff] could understand and follow simple instructions. She could
perform simple routine tasks. She would have considerable difficulty working in
any environment where she had to have interactions with others. She is extremely
self-conscious about the way she looks [and is] very worried about the judgments
other people make about her face and body. She would have significant difficulty
handling work pressure and stress and would have difficulty effectively
communicating with coworkers, customers and supervisors. . . . She is in need of
ongoing psychiatric and psychological treatment.
(Id. at 505.)
On May 9, 2011, Plaintiff visited Dr. Carol Beals, a rheumatologist, for an initial
investigational visit. (R. 10-5, PageID 522.) Plaintiff’s chief complaints at that examination
were “[f]ibromyalgia and all over pain.” Dr. Beals’ report from that visit described Plaintiff as a
“delightful, very pleasant 25-year-old female who is alert, oriented and appropriate in all
manners. She [was] wearing sunglasses, although she did take them off when” requested. (Id. at
524.) Dr. Beals observed that Plaintiff was 5’5” tall, weighed 174 pounds, and appeared to have
hypermobility in all of her joints. Plaintiff told Dr. Beals that she had recently lost 140 pounds
of weight over 15 months, and that she had “been exercising on the stationary bike every day.
Sometimes, she does this for hours. . . . She has used a treadmill from time to time for exercise.”
(Id. at 523.) At the conclusion of her report, Dr. Beals opined that, based on her initial
evaluation of Plaintiff, it appeared that she did “meet the criteria for fibromyalgia syndrome.”
(Id. at 525.)
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Plaintiff soon after learned that Michigan’s Disability Determination Service had denied
her claim for SSI. Plaintiff retained an attorney and submitted a request to the Social Security
Administration (“SSA”) for a hearing by an administrative law judge (“ALJ”).
On July 20, 2011, Plaintiff returned to Dr. Beals. In a report prepared after that visit, Dr.
Beals wrote:
Patient comes in today for a target visit for disability appointment. . . . She is here
to discuss disability since she does not feel that she can work and she has been
denied disability . . . . I will need to talk with her lawyer . . . and see what [is] the
best approach. I think that the psychiatric condition is the primary reason that she
cannot work in the public and that psychiatric evaluation would be most
appropriate.
(R. 10-5, PageID 558–59.) The report also noted that Plaintiff refused to be weighed during this
visit, and that Plaintiff’s “hypermobility syndrome, fibromyalgia, and somatic dysfunction have
not changed since her initial evaluation.” (Id. at 559.)
On July 20, 2011—the same day as Plaintiff’s visit to Dr. Beals—Plaintiff’s counsel sent
a letter to Chief ALJ Thomas Walters. In that letter, Plaintiff’s counsel asserted that Dr. Geiger’s
April 2011 report, discussed above, “failed to provide specific assessments relative to the
functioning of” Plaintiff. (R. 10-2, PageID 187.) The letter thereafter requested that Judge
Walters issue a subpoena requiring Dr. Geiger to testify at Plaintiff’s hearing before the ALJ, or
that Dr. Geiger be ordered to answer interrogatories addressing the alleged deficiencies in his
report.
On August 11, 2011, Plaintiff visited Dr. Tatyana Sigal, a psychiatrist that Plaintiff had
previously seen between 2004 and 2006. During that visit, Plaintiff stated that she felt “really
ugly” and that she could not take care of herself. Dr. Sigal opined that Plaintiff: was alert and
oriented to person, place, and time; was pleasant and cooperative; made good eye contact; had a
well-organized thinking process with no signs of psychosis; and had “fair” levels of attention,
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No. 15-1561
concentration, memory, insight, and judgment. Dr. Sigal noted that Plaintiff’s mood was
depressed, but stable, and that her affect was broad and congruent with her mood. On August
23, 2011, Dr. Sigal completed a two-page mental residual functional capacity (“RFC”)3
assessment form, in which Dr. Sigal rated Plaintiff’s limitations in each of twenty categories of
mental ability. Dr. Sigal rated Plaintiff to be: (1) “not significantly limited” in three categories;
(2) “moderately limited” in seven categories; and (3) “markedly limited” in ten categories. This
form, however, had no accompanying explanation of Dr. Sigal’s ratings.
Plaintiff’s administrative hearing was held on March 1, 2012; Paul Jones was the
presiding ALJ. At that hearing, Plaintiff testified that she was disabled due to chronic pain,
fatigue, and fear of being around others. She stated that she slept for more than twelve hours a
day. She also testified that she had sporadic migraines and the common symptoms of IBS.
Upon questioning by the ALJ, Plaintiff admitted that she was able to graduate from high school
despite her illnesses and fear of being around others. A vocational expert was thereafter called to
testify regarding Plaintiff’s ability to find work. The ALJ asked the expert whether there were
jobs for someone with Plaintiff’s educational background and lack of prior work experience,
assuming that Plaintiff had the RFC to perform unskilled, medium work4 limited to simple tasks
with only occasional public interaction. The expert opined that several potential jobs existed for
someone with those characteristics, including box bender, sweeper, and production helper.
3
SSA regulations define RFC as “the most [a claimaint] can still do despite [her]
limitations.” 20 C.F.R. § 404.1545(a)(1).
4
“Medium work involves lifting no more than 50 pounds at a time with frequent lifting
or carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 416.967(c).
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On March 8, 2012, the ALJ issued a decision denying Plaintiff’s claim for SSI. The ALJ
applied the traditional five-step process for evaluating disability benefits claims.5 At step one,
the ALJ determined that Plaintiff had not engaged in any substantial activity since the date of her
application. At step two, the ALJ found that Plaintiff’s obesity, affective disorder, BDD, and
fibromyalgia constituted severe impairments. The ALJ noted, however, that Dr. Beals’
conclusion that Plaintiff suffered from fibromyalgia was necessarily based on Plaintiff’s
subjective complaints of pain and tenderness in certain places on her body. The ALJ also found
that Plaintiff’s migraines were not a severe impairment because they could be controlled by
medication. At step three, the ALJ found that Plaintiff’s impairments did not match the severity
of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. §§
416.920(a)(4)(iii), 416.920(d).
The ALJ then determined that Plaintiff retained the RFC necessary “to perform medium
work, as defined in 20 CFR [§] 416.967(c) . . . except she can only do simple, routine, and
repetitive tasks, with only occasional interaction with the public.” (R. 9-2, PageID 39.) The ALJ
opined: “I find [Plaintiff’s] medically determinable impairments could reasonably be expected to
cause [her] alleged symptoms, but her statements concerning the intensity, persistence, and
limiting effects of these symptoms are not credible to the extent they are inconsistent with the
above residual functional capacity assessment.” (Id. at 40.) The adverse credibility
5
Because Plaintiff does not argue that the ALJ inappropriately applied the five-step
process, that process is not discussed in detail below. Briefly summarized, however: in steps one
through four, a claimant bears the burden of demonstrating: (1) that she did not engage in
substantial gainful activity since filing her claim; (2) that she had a severe impairment or
combination of impairments; (3) those impairments met or medically equaled the impairments
enumerated in SSA regulations; OR (4) those impairments prevented her from performing her
past relevant work. See, e.g., Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003);
20 C.F.R. § 416.920(b)–(f). At step five, the burden shifts to the Commissioner to prove the
existence of “a significant number of jobs in the economy that accommodate the claimant’s
residual functional capacity (determined at step four) and vocational profile.” Id.
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determination was largely based on the lack of objective evidence supporting Plaintiff’s
subjective assertions of pain and fear of social interaction. The ALJ also rejected Dr. Geiger’s
and Dr. Sigal’s conclusions regarding the work-preclusive severity of Plaintiff’s psychological
impairments because objective evidence in the record undermined those conclusions.
At step four, the ALJ determined that because Plaintiff had no past relevant work
experience, it could not be determined whether she had the RFC to continue such past work.
Finally, the ALJ concluded that based on the vocational expert’s testimony, Plaintiff was
“capable of making a successful adjustment to . . . work that exists in significant numbers in the
national economy.” (Id. at 41.)
Plaintiff’s request for review of the ALJ’s decision with the SSA’s Appeals Council was
denied on August 13, 2013, thus making the ALJ’s decision the final decision of the Social
Security Commissioner. See 20 C.F.R. § 416.1481. On October 10, 2013, Plaintiff filed a
complaint in federal district court seeking review of the SSA’s denial of her claim for SSI.
Plaintiff’s primary arguments before the district court were: (1) the ALJ failed to properly
evaluate Plaintiff’s fibromyalgia, polycystic ovarian syndrome (“PCOS”),6 and psychiatric
conditions; and (2) the ALJ erred by failing to issue a subpoena for Dr. Geiger. Plaintiff’s case
was assigned to a magistrate judge, who issued a report and recommendation affirming the
Commissioner’s denial of Plaintiff’s application. Plaintiff filed objections to the report and
recommendation, but the district court adopted the report and recommendation in its entirety.
Plaintiff timely appealed.
6
Plaintiff does not reassert her arguments regarding PCOS in this appeal.
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DISCUSSION
I. The ALJ Properly Assessed Plaintiff’s Fibromyalgia
“The court of appeals reviews the district court’s conclusion in social security cases de
novo, and directly reviews the [Commissioner’s] findings and conclusions as if it were the first
reviewing court.” Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir. 1990). The Commissioner’s
final decision must be affirmed if it “is supported by substantial evidence and was made pursuant
to proper legal standards.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007);
see also 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 Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “When deciding
. . . 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); see also Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir. 1993) (“If it is
supported by substantial evidence, the [Commissioner’s] determination must stand regardless of
whether the reviewing court would resolve the issues of fact in dispute differently.”). Finally,
any questions of law are reviewed de novo. McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830,
833 (6th Cir. 2006).
On appeal, Plaintiff argues that the ALJ incorrectly analyzed her fibromyalgia in two
ways: first, the ALJ failed to explicitly analyze her fibromyalgia under Social Security Ruling
(“SSR”) 12-2p; second, the ALJ improperly dismissed Plaintiff’s diagnosis of fibromyalgia as
necessarily dependent upon Plaintiff’s own subjective reports of pain. We address these alleged
errors in turn.
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No. 15-1561
A. SSR 12-2p
On July 25, 2012, the SSA released SSR 12-2p (“the Ruling”), which “provides guidance
on how we develop evidence to establish that a person has a medically determinable impairment
of fibromyalgia, and how we evaluate fibromyalgia in disability claims . . . .” SSA 12-2p, 2012
WL 3104869, at *1 (July 25, 2012). To that end, SSR 12-2p describes criteria for establishing
that a person has a medically determinable impairment (“MDI”) of fibromyalgia, id. at *2–3, the
sources of evidence the ALJ may look to, id. at *3–4, and how a claimant’s subjective assertions
of pain and functional limitations are evaluated, id. at *4. The Ruling also states that
fibromyalgia should be analyzed under the traditional five-step evaluation process used for
analyzing other claims for SSI. Id. at *5–6. Importantly, as Plaintiff concedes in her brief before
this Court, SSR 12-2p “is merely a binding interpretation of that which was already lawfully in
effect.” (Pl.’s Br. at 21.) In other words, SSR 12-2p merely provides guidance on how to apply
pre-existing rules when faced with a claimant asserting disability based on fibromyalgia.
Plaintiff argues that “the Commissioner failed to apply SSR 12-2p in denying the
application for benefits.” (Id. at 19.) Below, the district court observed that “Plaintiff fails to
explain how the ALJ’s RFC assessment contravenes SSR 12-2p or how the Commissioner’s final
decision should have differed in light of SSR 12-2p.” (R. 24, PageID 655.) We find the same is
true in this appeal. In addition to the above-quoted assertion that the ALJ “failed to apply SSR
12-2p,” Plaintiff ambiguously asserts that the ALJ “failed to enter into any discussion of the
factors required by law and the SSR.” (Pl.’s Br. at 21.) Yet, Plaintiff does not state which
“factors” were not discussed.
To the extent these vague arguments suggest that the ALJ failed to explicitly apply 12-
2p’s diagnostic criteria for determining whether a claimant has an MDI of fibromyalgia, such
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error—to the extent it exists—is harmless given that the ALJ concluded (1) that Plaintiff did
have fibromyalgia, and (2) that her fibromyalgia constituted a “severe impairment” under the
second step of the five-step analysis.7 To the extent Plaintiff argues that the ALJ failed to
properly apply SSR 12-2p’s guidelines for evaluating a claimant’s personal statements about the
severity of her own symptoms, that argument is also unavailing. Section IV of SSR 12-2p states
that when evaluating a claimant’s statements, ALJs must “follow the two-step process set forth
in our regulations and in SSR 96-7p.”8 SSR 12-2p, 2012 WL 3104869, at *5. In this case, the
ALJ cited SSR 96-7p and explicitly applied the two-step process described therein. Finally, as
discussed above, the ALJ applied the standard five-step process for evaluating all disability
claims. In sum, although the ALJ did not explicitly cite SSR 12-2p, it nevertheless applied the
Ruling’s principles. That is all that is required under our precedents. McClanahan, 474 F.3d at
7
These facts also belie Plaintiff’s unsupported assertions that “the ALJ obviously fails to
accept any legitimacy to the medical diagnosis involving fibromyalgia” (Pl.’s Br. at 21), and that
the ALJ “ignor[ed] a diagnosis of fibromyalgia.” (Id. at 24.)
8
Under this two-step process:
[1.] There must be medical signs and findings that show the person has an MDI(s)
which could reasonably be expected to produce the pain or other symptoms
alleged.
...
[2.] Once an MDI is established, we then evaluate the intensity and persistence of
the person’s pain or any other symptoms and determine the extent to which the
symptoms limit the person’s capacity for work. If objective medical evidence
does not substantiate the person’s statements about the intensity, persistence, and
functionally limiting effects of symptoms, we consider all of the evidence in the
case record, including the person’s daily activities, medications or other
treatments the person uses, or has used, to alleviate symptoms; the nature and
frequency of the person’s attempts to obtain medical treatment for symptoms; and
statements by other people about the person’s symptoms.
SSR 12-2p, 2012 WL 3104869, at *5.
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834 (“Because the ALJ conducted the analysis required by the Ruling, his failure to mention it
by name is not fatal to the decision.”).9
B. The ALJ’s alleged rejection of Plaintiff’s fibromyalgia
As we noted above, the ALJ found that Plaintiff did have fibromyalgia, and that her
fibromyalgia constituted a severe impairment. In so finding, the ALJ primarily relied on the
opinion of Dr. Beals and her determination that Plaintiff “had 14 of 18 fibromyalgia ‘tender
points.’” (R. 9-2, PageID 37.) However, the ALJ added that “the basis of such a finding
necessarily depends upon what ‘points’ a patient subjectively describes as ‘tender.’” (Id.)
Relying on this language, Plaintiff argues that the ALJ completely dismissed her diagnosis of
fibromyalgia. Plaintiff thereafter devotes a considerable portion of her brief arguing that her
diagnosis of fibromyalgia is supported by objective evidence in the record.
These arguments appear to be based on a misreading of the ALJ’s decision. The ALJ
actually accepted Plaintiff’s diagnosis of fibromyalgia and considered it a severe impairment.
Thus, to the extent the ALJ was skeptical of Plaintiff’s diagnosis, such skepticism ultimately had
no effect on the disposition of Plaintiff’s claim. It is true that the ALJ later found Plaintiff’s
statements regarding her fibromyalgia “not credible;” but this credibility determination pertained
to Plaintiff’s claims regarding the limiting effects of fibromyalgia on her ability to work.
Making such a credibility determination was not legal error. As explained in SSR 96-7p (which
is cited in SSR 12-2p), “whenever [an] individual’s statements about the intensity, persistence, or
functionally limiting effects of pain or other symptoms are not substantiated by objective
medical evidence, the adjudicator must make a finding on the credibility of the individual’s
9
Because we hold that the ALJ properly applied the principles of SSR 12-2p, we decline
to address the parties’ arguments regarding whether the Commissioner was bound by the Ruling
even though the ALJ denied Plaintiff’s application for SSI before the Ruling was released on
July 25, 2012.
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No. 15-1561
statements based on a consideration of the entire case record.” SSR 96-7p, 1996 WL 374186, at
*2 (July 2, 1996); see also Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003)
(“[A]n ALJ is not required to accept a claimant’s subjective complaints and may properly
consider the credibility of a claimant when making a determination of disability.”).
Notably, Plaintiff does not argue that the ALJ’s credibility determination was incorrect or
unsupported by substantial evidence. Thus, that issue is waived. See Enertech Elec., Inc. v.
Mahoning Cty. Comm’rs, 85 F.3d 257, 259 (6th Cir. 1996). Even if she had raised this issue,
however, we would be inclined to affirm the ALJ’s credibility determination because it is
supported by substantial evidence. See Rogers, 486 F.3d at 241. As both the magistrate judge
and the district court observed, Dr. Beals (Plaintiff’s fibromyalgia specialist) did not identify any
functional restrictions stemming from plaintiff’s fibromyalgia, and Plaintiff failed to provide any
additional evidence supporting her statements regarding the debilitating effects of her
fibromyalgia. See 20 C.F.R. § 416.945(a)(3) (establishing that a claimant is generally
responsible for providing evidence used to determine residual functional capacity).
Moreover, despite her claim of pain so debilitating that she was unable to work, Plaintiff
was able to, inter alia: complete high school and a year of college; lose 140 pounds by riding on
a stationary bike every day, sometimes for hours at a time; do her own grocery shopping; travel
to and stay with her out-of-state boyfriend; and maintain appropriate hygiene. This constitutes
evidence that “a reasonable mind might accept as adequate to support” the ALJ’s determination
that Plaintiff maintained the RFC to work, despite her statements to the contrary. Richardson,
402 U.S. at 401.
We therefore find no error in the ALJ’s assessment of Plaintiff’s fibromyalgia.
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II. The ALJ Properly Assessed Plaintiff’s Psychological Impairments
Drs. Beals, Geiger, and Sigal all opined that Plaintiff’s psychological conditions rendered
her unable to work; all of these opinions were rejected by the ALJ. On appeal, Plaintiff argues
that in rejecting these expert opinions, the ALJ was necessarily replacing the experts’ medical
judgments with his own. For example, Plaintiff cites the ALJ’s rejection of the opinion of Dr.
Sigal, Plaintiff’s treating psychologist, regarding Plaintiff’s capacity to work. In that section of
his decision, the ALJ stated:
In August 2011, Dr. Sigal gave claimant work preclusive limitations (Exhibit
13F). This opinion is not explained by his report, nor is it consistent with the
record as a whole. Dr. Sigal reported claimant was alert, oriented x3, pleasant,
and cooperative. He said claimant’s thinking process was well organized and that
she had no morbid preoccupations. Therefore, I reject this opinion.
(R. 9-2, PageID 40.) In response, Plaintiff argues that “[n]o expert evidence suggests that being
able to think and be pleasant rules out a disability from performing competitive work for forty
hours a week. A medical judgment is required to conclude that a ‘well organized thinking
process’ is necessarily consistent with work activity.” (Pl.’s Br. at 25–26.) Plaintiff later asserts,
“[t]o argue that some symptoms identified support a diagnosis, and some do not, is necessarily a
medical judgment.” (Id. at 28.)
We find these arguments unavailing. First, as above, these arguments are based partly on
a misreading of the ALJ’s decision. The ALJ never disagreed with or attempted to refute the
diagnoses of the medical experts; rather, the ALJ disagreed with those experts’ conclusions
regarding Plaintiff’s capacity to work. Second, determining how certain diagnoses and
symptoms bear on a claimant’s capacity to work is not exclusively a “medical judgment,” but a
matter explicitly within the ALJ’s purview:
When the medical signs or laboratory findings show that you have a medically
determinable impairment(s) that could reasonably be expected to produce your
symptoms, such as pain, we must then evaluate the intensity and persistence of
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your symptoms so that we can determine how your symptoms limit your capacity
for work . . . .
20 C.F.R. § 416.929(c)(1). Along that line, SSA regulations provide ALJs with the authority to
disagree with medical experts’ opinions on the ultimate question of a claimant’s capacity to
work: “A statement by a medical source that you are ‘disabled’ or ‘unable to work’ does not
mean that [the ALJ] will determine that you are disabled.” 20 C.F.R. § 416.927(d)(1).
Plaintiff also focuses—somewhat cryptically—on her “symptoms.” She argues that
“[m]any symptoms are specified in the medical records before this Court. The claimant has
testified to a variety of symptoms.” (Pl.’s Br. at 28.) She thereafter asserts that “[a]t the very
least there must be some medical basis to conclude that a specific sign or symptom is supportive,
or detracts from a claim.” (Id.) Again, this argument is based on a misunderstanding of the
applicable regulations and the role of the ALJ. Although the ALJ may consider statements by
medical experts regarding how a particular symptom affects the claimant, see 20 C.F.R.
§ 416.929(c)(1), such statements are neither required nor dispositive of the ultimate issue of
disability. Id. Rather, it is the Commissioner’s prerogative to determine whether a certain
symptom or combination of symptoms renders a claimant unable to work. Id.; see also
20 C.F.R. § 416.927(d)(2).
We note that Plaintiff’s briefing on this issue again fails to argue that the ALJ’s
determinations were not supported by substantial evidence. Plaintiff does argue that “there is
ample evidence that disability results from the findings and symptoms that are in fact present.”
(Pl.’s Br. at 28.) However, “[t]he findings of the Commissioner are not subject to reversal
merely because there exists in the record substantial evidence to support a different conclusion.”
Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001); see also Her v. Comm’r of Soc. Sec.,
203 F.3d 388, 389–90 (6th Cir. 1999) (“Even if the evidence could also support another
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conclusion, the decision of the [ALJ] must stand if the evidence could reasonably support the
conclusion reached.”). Rather, we must uphold the ALJ’s decision so long as it “is supported by
substantial evidence and was made pursuant to proper legal standards.” Rogers, 486 F.3d at 241;
see also 42 U.S.C. § 405(g).
Once again, however, we would be inclined to affirm the ALJ’s findings regarding
Plaintiff’s psychological impairments. Despite her claims of being largely incapable of normal
social interaction, every physician to have seen Plaintiff described her as some variant of polite,
oriented, and responsive. Dr. Geiger noted that Plaintiff’s clothing was neat and clean, and her
grooming and hygiene were good. Although the record indicates that Plaintiff often wore
sunglasses when interacting with her physicians, it also indicates that she was willing to remove
them when asked. Finally, Plaintiff herself stated that she had a boyfriend and often spoke with
friends online. Based on the above, we would conclude that the ALJ’s determination that
Plaintiff had “moderate” difficulties in social functioning is supported by substantial evidence.
In terms of Plaintiff’s mental functioning, Dr. Geiger observed that Plaintiff’s thoughts
were logical and organized. Dr. Geiger also stated that Plaintiff “remembered 7 digits forward
and 4 digits backward;” she “remembered 2 of 3 objects after three-minute delay;” she could
perform basic mathematical calculations, including counting backwards from 100 by 7s; she
could explain common proverbs. (R. 10-5, PageID 504–05.) Dr. Geiger opined: “I believe
[Plaintiff] could understand and follow simple instructions. She could perform simple routine
tasks.” (Id. at 505.) These findings are consistent with Plaintiff’s own statements that she
sometimes did arts and crafts, and that she often used her computer for internet and email. With
such facts in the record, we would conclude that the ALJ’s determination that Plaintiff had
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“moderate” difficulties with regard to “concentration, persistence, or pace” is supported by
substantial evidence. (R. 9-2, PageID 38.)
Finally, we would find that based on the above evidence, the ALJ was entitled to reject
the medical experts’ opinions regarding Plaintiff’s psychological impairments’ effect on her
capacity to work. When making a disability determination, an ALJ must consider the opinions
of experts in light of the entire record. See 20 C.F.R. §§ 416.927(b), 416.920b(b). The ALJ
should weigh expert opinions based on, inter alia, the strength of relevant evidence supporting
those opinions, the opinions’ consistency with the record as a whole, and whether the experts are
opining on issues within their area of expertise. 20 C.F.R. § 416.927(c)(3)–(5). In this case, the
ALJ correctly noted that neither Dr. Geiger’s nor Dr. Sigal’s conclusion regarding Plaintiff’s
inability to work was explained, and their own statements regarding Plaintiff’s demeanor tended
to contradict their conclusions. Moreover, Dr. Beals’ opinion that Plaintiff’s inability to work
was likely due to her psychological impairments was not entitled to much weight because Dr.
Beals’ own comments called her impartiality into question and because she had no apparent
expertise in psychology or psychiatry.
In sum, we conclude that the ALJ did not err in analyzing Plaintiff’s mental impairments.
III. The ALJ Did Not Err By Failing to Issue a Subpoena of Dr. Geiger
An ALJ’s decision regarding a claimant’s request to issue a subpoena is reviewed for
abuse of discretion. See Calvin v. Chater, 73 F.3d 87, 88 (6th Cir. 1996). “When it is reasonably
necessary for the full presentation of a case, an administrative law judge or a member of the
Appeals Council may, on his or her own initiative or at the request of a party, issue subpoenas
for the appearance and testimony of witnesses . . . .” 20 C.F.R. § 416.1450(d)(1).
Parties to a hearing who wish to subpoena documents or witnesses must file a
written request for the issuance of a subpoena with the administrative law judge
or at one of our offices at least 5 days before the hearing date. The written request
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must give the names of the witnesses or documents to be produced; describe the
address or location of the witnesses or documents with sufficient detail to find
them; state the important facts that the witness or document is expected to prove;
and indicate why these facts could not be proven without issuing a subpoena.
20 C.F.R. § 416.1450(d)(2). “[A] social security claimant does not have an absolute right to
subpoena a physician who submits a pre-hearing report, but rather the administrative law judge
has the discretion to issue a subpoena ‘where necessary for the full presentation of a case.’”10
Flatford v. Chater, 93 F.3d 1296, 1300–01 (6th Cir. 1996) (footnote omitted) (citing Calvin,
73 F.3d at 93).
On July 18, 2011, Plaintiff received a form letter from the SSA explaining the
administrative hearing process. That letter stated:
If a physician, expert, or other person is not providing documents important to
your case, you may ask the ALJ to issue a subpoena. . . . The ALJ will issue a
subpoena only if he or she thinks the evidence is necessary to decide your case,
and the evidence cannot be obtained another way. You must ask the ALJ to issue
a subpoena at least 5 days before your hearing date. Send your request in writing
to the address at the top of the first page of this letter.
(R. 9-4, PageID at 96.) That form letter was signed: “Sincerely yours, Thomas L. Walters . . .
Chief Administrative Law Judge.” (Id.) Two days later—on July 20, 2011—Plaintiff’s counsel
sent a letter to the address specified by the SSA, requesting the issuance of a subpoena to Dr.
Steven Geiger. Plaintiff’s letter was addressed to Chief Judge Walters. Plaintiff’s letter asserted
that Dr. Geiger’s Consultative Evaluation Report “identifie[d] specific psychiatric diagnoses of
significance which may cause serious functional limitations,” but that the Report “failed to
10
Plaintiff notes that an SSA “Acquiescence Ruling, AR 91-1 actually concludes that a
subpoena is automatically required when requested by a claimant in this situation, at least as
acquiesced to in the Fifth Circuit.” (Pl.’s Br. at 30–31.) As her argument concedes, however,
the automatic subpoena requirement to which AR 91-1 refers applies only in the Fifth Circuit.
Cf. Lidy v. Sullivan, 911 F.2d 1075, 1077 (5th Cir. 1990). This Circuit has declined to adopt the
Fifth Circuit’s automatic rule, and has explicitly held that issuing a subpoena is a matter within
the discretion of the ALJ. Flatford, 93 F.3d at 1300–01; see also Passmore v. Astrue, 533 F.3d
658, 661–63 (8th Cir. 2008) (observing that the Second and Eighth Circuits have also held that
ALJ’s have discretion to issue subpoenas pursuant to 20 C.F.R. § 416.1450).
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No. 15-1561
provide specific assessments relative to the functioning of [Plaintiff].” (R. 10-2, PageID 187.)
Plaintiff’s letter requested, in the alternative, that Dr. Geiger be directed to answer
interrogatories, which she enclosed along with her letter.
Plaintiff’s hearing was conducted on March 1, 2012—nearly a year after she sent her
original request for a subpoena. Her case was assigned not to Chief Judge Walters, but to ALJ
Paul Jones. Plaintiff’s request for a subpoena was not mentioned during her hearing. The record
contains no evidence regarding a disposition of Plaintiff’s request for a subpoena; Plaintiff now
asserts that her request was “rebuffed.”
Plaintiff argues that the ALJ’s failure to grant her request for additional testimony from
Dr. Geiger constituted an abuse of discretion. She argues that this was an especially grave error,
given that the ALJ explicitly dismissed as unsupported Dr. Geiger’s conclusion that Plaintiff
would have difficulty handling work pressure and communicating with coworkers. In support of
her argument, Plaintiff cites Urban v. Heckler, No. 86-541, 1987 WL 11475 (D.N.J. Apr. 21,
1987). In Urban, the court held that the claimant’s due process rights had been violated when
the ALJ relied on reports by unidentified authors, but failed to either strike the reports or issue a
subpoena to identify the reports’ authors. Id. at *2–4. In remanding the claimant’s case for
further proceedings, the court held that the ALJ’s affirmative reliance on statements in the
reports that were harmful to the claimant triggered a due process right to cross-examine the
reports’ author(s). Id. at *4 (“[A] ‘full presentation’ of the case requires that the subpoena issue
for cross-examination of the witness. To hold otherwise would allow the claimant to be placed
in the impossible position of being unable to cross-examine a witness although faced with an
adverse statement from the very witness whose appearance had been sought.” (quoting Taylor v.
Weinberger, 528 F.2d 1153, 1156 (4th Cir. 1975))).
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We find the Plaintiff’s arguments unavailing for three reasons. First, Plaintiff’s case is
distinguishable from Urban because the ALJ in this case did not explicitly rely on information
contained in Dr. Geiger’s report when denying Plaintiff’s claim. Rather, the ALJ rejected Dr.
Geiger’s conclusion that Plaintiff would have difficulty working because of an absence of
supporting evidence in that report. In other words, Plaintiff did not need to cross-examine Dr.
Geiger on any damaging statements; she merely wanted to ask Dr. Geiger questions that would
bolster her case. Moreover, that absence of information provided only one basis for the ALJ’s
rejection of Dr. Geiger’s opinion. The ALJ also concluded that Dr. Geiger’s assertions of
Plaintiff’s inability to handle the stress of work or effectively communicate with coworkers were
not consistent with the record as a whole. The ALJ observed that contrary to Dr. Geiger’s
unsupported conclusions, Plaintiff “was able to communicate effectively with Dr. Geiger, [her]
medical sources, the Agency Field Office employee, and the administrative law judge.” (See R.
9-2, PageID 40.)
Second, Plaintiff’s request for a subpoena failed to establish why the information she
sought from Dr. Geiger “could not be proven without issuing a subpoena.” 20 C.F.R.
§ 416.1450(d)(2). Plaintiff’s request for a subpoena of Dr. Geiger was based on his “fail[ure] to
provide specific assessments relative to the functioning of” Plaintiff. (R. 10-2, PageID 187.)
Yet, Plaintiff could have sought such “specific assessments” from her own doctors or experts of
her choosing; there was nothing unique about Dr. Geiger’s analysis—e.g., statements adverse to
Plaintiff—that would necessitate cross-examination of him, specifically. Moreover, that the
evidence Plaintiff sought could have been proven without issuing a subpoena to Dr. Geiger is
evidenced by Plaintiff’s own suggestion of an alternative—namely, issuing an interrogatory.
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No. 15-1561
Finally, as the district court noted, at no point during her hearing before ALJ Paul Jones
did Plaintiff or her counsel renew her request for a subpoena, object to the lack of ruling on her
request for a subpoena, request cross-examination of Dr. Geiger, or present any interrogatories to
the ALJ. Plaintiff responds that no cases, regulations, or statutes required her to do any of the
above. Although Plaintiff is correct that SSA regulations do not require that requests for a
subpoena be renewed during a hearing, as the Commissioner points out, “a claimant is required
to ‘make every effort’ to ensure that all material evidence is received by the [ALJ] by the time of
the hearing.” Flatford, 93 F.3d at 1302; see also 20 C.F.R. §§ 416.1435 (“Each party shall make
every effort to ensure that the administrative law judge receives all of the evidence . . . .”),
416.912 (establishing claimant’s burden to prove disability). By failing to raise her concerns
regarding Dr. Geiger’s report during her hearing, Plaintiff waived any objection to the deficiency
in the record caused by Dr. Geiger’s failure to testify. Cf. Millmine v. Sec’y of Health & Human
Servs., 69 F.3d 537 (6th Cir. 1995) (table) (“[T]he court finds that plaintiff’s failure to object to
the ALJ’s possible bias during the administrative process constitutes a waiver of plaintiff’s
objection.”).
CONCLUSION
For the reasons stated above, we AFFIRM the district court’s judgment upholding
Commissioner’s denial of Plaintiff’s application for SSI.
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