Luteyn v. Commissioner of Social Security , 528 F. Supp. 2d 739 ( 2007 )

528 F.Supp.2d 739 (2007)

Joseph L. LUTEYN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

No. 4:06-cv-92.

United States District Court, W.D. Michigan, Southern Division.

November 1, 2007.

Kenneth Kobayashi, Kenneth Kobayashi, PLC, Kalamazoo, MI, for Plaintiff.

Ronald M. Stella, U.S. Attorney, Grand Rapids, MI, for Defendant.

Opinion and Order

PAUL L. MALONEY, District Judge.

Overruling the Plaintiffs Objections and Adopting the R & R Terminating the Case

This matter was referred to the Honorable Joseph G. Scoville, United States Magistrate Judge, who issued a Report and Recommendation ("R & R") on Monday, August 27, 2007.

Title 28 U.S.C. § 636(b)(1) provides, "Within ten days after being served with a copy [of an R & R], any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court." Likewise, Federal Rule of Civil Procedure 72 provides that "[w]ithin 10 days after being served with a copy of the recommended disposition, a party may serve and file specific, written objections to the proposed findings and recommendations." Calculating the ten-day period as prescribed by Federal Rule of Civil Procedure 6(a), the court finds that plaintiff Luteyn's objection to the R & R was timely filed. Luteyn objects to the ALJ's assessment of his credibility, the ALJ's reliance on the testimony of the vocational expert, and the ALJ's determination that he was capable of performing light work. See Objections at 1.

The court finds the R & R to be well-reasoned and is unconvinced by the plaintiffs objections. For the reasons explained by the R & R, substantial evidence supported the ALJ's determination that Luteyn's mental and physical impairments did not render him disabled between his alleged disability onset date of May 12, 2003 and his date last insured ("DLI").

While Luteyn undisputedly suffered from mild compression deformities in his thoracic spine "transition L5", internal fixation^[1] of the right iliac crest,^[2] borderline intellectual function, adult antisocial personality disorder,^[3] and pain disorder,^[4] the ALJ reasonably found that his subjective complaints were not credible.

Specifically, it is a claimant's "responsibility to show, through objective medical evidence, that [his] subjective complaints are credible." Rouse v. Comm'r of Soc. Sec., 75 Fed.Appx. 476, 478 (6th Cir. 2003) (per curiam) (Nelson, Gibbons, & Sutton, JJ.) (citing 20 C.F.R. § 416.912(a)). Among other things, Luteyn failed to present objective medical evidence to explain the purported "shakiness" in his hands or his self-imposed extensive limitations on walking, lifting, standing and sitting. "Insufficient objective medical evidence makes credibility a particularly relevant issue and this Court will generally defer to the Commissioner's assessment when adequately supported." Chandler v. Comm'r of Soc. Sec., 124 Fed.Appx. 355, 358 (6th Cir.2005) (Suhrheinrich, Rogers & Cook, JJ.) (per curiam) (citing Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir.1997)).^[5]

Moreover, Luteyn's own filings are internally contradictory with regard to the onset date and cause of his back condition and attendant limitations. In connection with the instant application for social security disability benefits, Luteyn claimed an onset date of May 2003 and told a consulting psychologist that he stopped working because of back problems and stress at home and in his relationship, AR 161, but his workers compensation claim alleged that he was injured on the job in September 2002, which exacerbated his back condition, AR 169-80 (Dep. of Dr. Salena Marie Cox, M.D., who examined Luteyn once in June 2005) and AR 184-88 (Dep. of Dr. James Weissinger, M.D., who examined Luteyn once in October 2004). The ALJ was entitled to draw an adverse inference about Luteyn's credibility due to the inconsistency between his claims in this case and the claims he made in his workers compensation case. Cf. Osborne v. Sullivan, No. 90-2609, 907 F.2d 1139, 1990 WL 86203, at * 1 (4th Cir. June 6, 1990) (ALJ did not err in rejecting treating physician's opinion that claimant was disabled, because that same physician, in claimant's Workers Compensation case, had "suggested that Osborne's condition was treatable and that he would be able to work following physical therapy").

This latter claim was not supported by the treatment record, which showed that after the alleged on-the-job back-aggravating injury in September 2002, Luteyn did not seek treatment until December 2002; and even then, the notes from that visit do not pertain to any back problem, AR 153. Cf. Threet v. Barnhart, 353 F.3d 1185, 1189 (10th Cir.2003) ("The ALJ found Dr. Ellis's restrictive residual functional capacity assessment . . . to be inconsistent with [Ms. Threet's] record of having received no medical care/treatment for her injury since September 16, 1998.") (alteration in original).

Luteyn next objects that the ALJ improperly disregarded the opinion of Dr. Cox, who he says was a treating physician, that he was disabled, instead crediting

the opinion of Dr. Wessinger, a one-time examiner hired by the workers compensation carrier, who stated that Plaintiff had a relatively mild back impairment that did not warrant any exertional restrictions. [I]gnoring the opinions of the treating and consultative examiners, the ALJ failed to properly consider all the evidence as required under SSR [Social Security Ruling] 96-6p, SSR 06-8p and Hurst v. Secretary of HHS, 753 F.2d 517 (6th Cir.1985).

Objections at 2.

Luteyn's characterization of Dr. Cox as his treating physician is unsupported by the record and flatly contrary to guidance provided by our circuit. As the Magistrate Judge noted, a recent Sixth Circuit panel held that, as a matter of law, a single examination does not suffice to create a treating relationship. R & R at 6 n. 1 (citing Kornecky v. Comm'r of Soc. Sec., 167 Fed.Appx. 496, 506 (6th Cir.2006) (per curiam) (Siler & Griffin, JJ., and Katz, D.J.)). "A plethora of decisions unanimously hold that a single visit does not constitute a treating relationship." Kornecky, 167 Fed.Appx. at 506 (citing White v. Barnhart, 415 F.3d 654, 658 (7th Cir. 2005)). "Indeed, depending on the circumstances and nature of the alleged condition, two or three visits often will not suffice for an ongoing treatment relationship." Kornecky, 167 Fed.Appx. at 506 (citing Cunningham v. Shalala, 880 F.Supp. 537, 551 (N.D.Ill.1995) (where physician saw claimant five times in two years, it was ``hardly a foregone conclusion' that his opinion should be afforded great weight)); see also Boucher v. Apfel, No. 99-1906, 2000 WL 1769520, at *9 (6th Cir. Nov. 15, 2000) (Gilman, J., joined by. Merritt & Kennedy, JJ.) (although physician examined claimant three times (once each in 1990, 1992, and 1992), he was not entitled to treating-physician status). As our circuit reasoned in an earlier, published decision,

The treating physician doctrine is based on the assumption that a medical professional who has dealt with the claimant and his maladies over a long period of time will have a deeper insight into the medical condition of the claimant than will a person who has examined a claimant but once. * * * Dr. Ruff examined Mr. Baker on only one occasion, and the rationale of the treating physician doctrine simply does not apply here.

Barker v. Shalala, 40 F.3d 789, 794 (6th Cir.1994). See also Bell v. Barnhart, 148 Fed.Appx. 277, 284-85 (6th Cir.2005) (Quist, D.J., joined by Boggs, C.J., and Gibbons, J.) (psychologist who examined' claimant on a single occasion was not entitled to treating-physician deference); Hoskins v. Comm'r of Soc. Sec., 106 Fed.Appx. 412, 414-15 (6th Cir.2004) (physician who examined claimant on a single occasion was not a treating physician under 20 C.F.R. § 404.1502) (citing Atterberry v. Sec'y of HHS, 871 F.2d 567, 572 (6th Cir. 1989)).

Based on these authorities, the court finds that Cox was merely an examining physician, not a treating physician. Luteyn has not shown why it was reversible error for the ALJ to credit fellow examining physician Weissinger's opinion over Cox's. Cf. Smith, v. Comm'r of Soc. Sec., 482 F.3d 873, 876 (6th Cir.2007) ("In the absence of treating-source status for these doctors, we do not reach the question of whether the ALJ violated Wilson [v. Comm'r of Soc. Sec., 378 F.3d 541 (6th Cir.2004)] by failing to give reasons for not accepting their reports."). Weissinger, an orthopedic surgeon, examined Luteyn in connection with his workers compensation claim and found him essentially unrestricted in his ability to work, AR 182-88.

Given the reasonableness of the ALJ's adverse credibility determination, and this court's holding that the ALJ did not violate the treating-physician rule by crediting Weissinger's opinion instead of Cox's, claimant Luteyn fails to show any reversible error in the ALJ's RFC finding.

In turn, the ALJ did not err in formulating a hypothetical question to the vocational expert based on that RFC finding. See Myatt v. Comm'r of Soc. Sec., 251 Fed.Appx. 332, ____, 2007 WL 3023485, *3 (6th Cir. Oct. 16, 2007) (Cole, Cook, D.J.Frost) ("[T]he ALJ's hypothetical questions, he insists, failed to include from which Myatt testified he suffers. This argument lacks merit. * * * The ALJ found Myatt to be not fully credible due to inconsistencies between Myatt's testimony, medical history, and information he and his wife submitted to the SSA, and due to Myatt's delay in seeking mental health treatment. Accordingly, substantial evidence supports the ALJ's credibility determination. . . . ").

The ALJ was then entitled to rely on the vocational expert's subsequent uncontradicted answer to the hypothetical— namely, that someone with that RFC and background had a significant number of suitable jobs available. See Lancaster v. Comm'r of Soc. Sec., 228 Fed.Appx. 563, 573 (6th Cir.2007) (Cole, Clay, & Gilman, JJ.) ("``Substantial evidence may be produced through reliance on the testimony of a vocational expert in response to a hypothetical question if the question accurately portrays [claimant's] physical and mental impairments.'") (quoting Varley v. HHS, 820 F.2d 777, 779 (6th Cir.1987)) (other internal quotation marks and alterations omitted); Colvin v. Barnhart, 475 F.3d 727, 732 (6th Cir.2007) ("A vocational expert's testimony concerning the availability of suitable work may constitute substantial evidence where the testimony is elicited in response to a hypothetical question that accurately sets forth the plaintiffs physical and mental impairments.") (citing Smith v. Halter, 307 F.3d 377, 378 (6th Cir.2001)).^[6]

Finally, Luteyn objects that the ALJ erred by refusing to permit lay witness Monica Walls—who was either Luteyn's girlfriend or his fiancee, AR 212 and 224—to testify regarding her perception of the severity of his mental impairment. As the Magistrate Judge noted, Luteyn's counsel acquiesced in, and did not object to, the ALJ's decision not to call Walls as a witness. R & R at 8-9 (quoting AR 225). In so doing, Luteyn's counsel waived the right to question Ms. Walls.^[7] Our Circuit confronted a somewhat similar issue in Butler v. Comm'r of Soc. Sec., 114 F.3d 1186, 1997 WL 259374 (6th Cir. May 15, 1997) (per curiam) (Keith, Merritt, & Cole, JJ.):

Butler argues that he was denied procedural due process because he was denied the opportunity to cross-examine the vocational expert, Asa Brown . . . The district court disagreed, finding that Butler waived the opportunity to cross-examine Brown because. Butler's attorney left during a recess in the hearing and was not present when the hearing resumed.

* * *

We agree with the district court. Although due process requires that a claimant be given the right to cross-examine individuals who testify [or, in Luteyn's case, to call an individual to testify on a relevant matter], that right is waived if the attorney is silent when the opportunity to cross-examine arises. Coffin v. Sullivan, 895 F.2d 1206, 1212 (8th Cir.1990). * * *

Id at 1997 WL 259374, *3-4 (emphasis added). Accord Gammons v. Mass. Dep't of Housing & Cmty. Dev., 502 F.Supp.2d 161, 165 (D.Mass.2007) (where plaintiff complained that she was denied, during administrative hearing, her due process right to cross-examine a non-testifying landlord; "At the hearing, Gammons did not object to the lack of opportunity to conduct a cross-examination or seek a continuance so that the landlord could testify on her behalf. The issue is waived.").

Luteyn cannot deny his counsel's acquiescence by complaining that counsel acquiesced merely because he thought it would be futile to persist in requesting Walls as a witness. See Luteyn's Objections at 2. If Luteyn is dissatisfied with his counsel's decision not to press the issue and seek to call Walls as a witness, his disagreement is with counsel's litigation tactics, not with the rulings of the ALJ.^[8]

In any event, the testimony of a lay witness "is entitled to perceptible weight only if it is fully supported by the reports of the treating physicians," Simons v. Barnhart, 114 Fed.Appx. 727, 733 (6th Cir. 2004) (Moore, Sutton, & D.J. Adams) (citing Lashley v. Sec'y of HHS, 708 F.2d 1048, 1054 (6th Cir.1983)), and Luteyn fails to identify any treating-physician report that would lend full support to the testimony Walls intended to give about the severity of Luteyn's mental impairment and the limitations it imposed. See Melvin v. Sullivan, 902 F.2d 33, 1990 WL 51410, at *1 (6th Cir. April 24, 1990) (Guy, Boggs, D.J.Gadola) (per curiam) ("Although the lay witness testimony may be fully supported by the subjective conclusions of the treating physicians as to the plaintiff's credibility, such testimony is not fully supported by the medical reports. Under these circumstances, the Secretary did not err in refusing to address the lay witness testimony.").^[9]Accord Landry v. Heckler, 782 F.2d 1551, 1554 (11th Cir.1986) ("At the hearing before the ALJ, Landry wished to introduce the testimony of three lay witnesses, his wife and two of his friends, who were prepared to testify to the extent of Landry's pain. The ALJ refused to hear their testimony. It is clear from our discussion above that the testimony of these witnesses would have been irrelevant to the Secretary's final decision. Because Landry's claim fails for want of sufficient medical evidence, his assertion that he should have been allowed to produce lay testimony is mooted.").

Accordingly, having reviewed the parties' briefs, the R & R, plaintiff Luteyn's objections to the R & R and the. Commissioner's response thereto, the court hereby OVERRULES the plaintiff's objections, ADOPTS the R & R [docket # 13], and AFFIRMS the Commissioner's decision.

This case is TERMINATED.

This is a final and appealable order. IT IS SO ORDERED.

REPORT AND RECOMMENDATION

JOSEPH G. SCOVILLE, United States Magistrate Judge.

This is a social security action brought under 42 U.S.C. § 405(g) seeking review of a final decision of the Commissioner of Social Security finding that plaintiff was not entitled to disability insurance benefits (DIB). On November 3, 2003, plaintiff filed his application for DIB benefits, claiming a May 12, 2003 onset of disability. (A.R.51-53). Plaintiff's claim was denied on initial review. (A.R.23-29). On March 13, 2006, plaintiff received a hearing before an administrative law judge at which he was represented by counsel. (A.R.207-29). Among other things, the 28-year-old claimant testified that no physician had ever recommended surgery for his back condition (A.R.213), and that he had no history of psychiatric or psychological treatment. (A.R.215). On March 20, 2006, the ALJ issued a decision finding that plaintiff was not disabled. (A.R.14-22). On June 7, 2006, the Appeals Council denied review (A.R.3-5), and the ALJ's decision became the Commissioner's final decision. On August 7, 2006, plaintiff filed his complaint seeking judicial review of the Commissioner's decision denying his claim for DIB benefits. Plaintiff argues that the court should overturn the Commissioner's decision on the following grounds:

A. The Administrative Law Judge's findings that Plaintiffs statements concerning the intensity, duration and limiting effect of these symptoms were not entirely credible, that Plaintiff has the residual functional capacity to lift twenty pounds occasionally and ten pounds frequently, that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, that Plaintiffs self-imposed limitations are inconsistent with the objective medical record, that not allowing the testimony of a lay witness to develop the severity of Plaintiffs mental impairment are not supported by substantial evidence on the whole record, not supported by proper legal standards and/or represent an abuse of discretion.

(Statement of Errors, Plaintiffs Brief at 6, docket # 9). Upon review, I find that plaintiffs arguments do not provide any basis for disturbing the Commissioner's decision. I recommend that the Commissioner's decision be affirmed.

Standard of Review

When reviewing the grant or denial of social security benefits, this court is to determine whether the Commissioner's findings are supported by substantial evidence and whether the Commissioner correctly applied the law. See Elam ex rel. Golay v. Commissioner, 348 F.3d 124, 125 (6th Cir.2003); Buxton v. Halter, 246 F.3d 762, 772 (6th Cir.2001); Heston v. Commissioner, 245 F.3d 528, 534 (6th Cir. 2001); Walters v. Commissioner, 127 F.3d 525, 528 (6th Cir.1997). Substantial evidence is defined as "``such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Heston, 245 F.3d at 534 (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)); see Rogers v. Commissioner, 486 F.3d 234, 241 (6th Cir. 2007). The scope of the court's review is limited. Buxton, 246 F.3d at 772. The court does not review the evidence de novo, resolve conflicts in evidence, or make credibility determinations. See Walters v. Commissioner, 127 F.3d at 528; Hogg v. Sullivan, 987 F.2d 328, 331 (6th Cir.1993). "The findings of the [Commissioner] as to any fact if supported by substantial evidence shall be conclusive. . . ." 42 U.S.C. § 405(g); see McClanahan v. Commissioner, 474 F.3d 830, 833 (6th Cir.2006). "The findings of the Commissioner are not subject to reversal merely because there exists in the record substantial evidence to support a different conclusion. . . . This is so because there is a ``zone of choice' within which the Commissioner can act without fear of court interference." Buxton, 246 F.3d at 772-73. "If 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." Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir. 1993); see Smith v. Chater, 99 F.3d 780, 782 (6th Cir.1996) ("[E]ven if the district court—had it been in the position of the ALJ—would have decided the matter differently than the ALJ did, and even if substantial evidence also would have supported a finding other than the one the ALJ made, the district court erred in reversing the ALJ."). "[T]he Commissioner's decision cannot be overturned if substantial evidence, or even a preponderance of the evidence supports the claimant's position, so long as substantial evidence also supports the conclusion reached by the ALJ." Jones v. Commissioner, 336 F.3d 469, 477 (6th Cir.2003); see Warner v. Commissioner, 375 F.3d 387, 390 (6th Cir.2004).

Discussion

The ALJ found that plaintiff met the disability insured requirement of the Social Security Act from his alleged onset of disability of May 12, 2003, through the date of the ALJ's decision. Plaintiff had not engaged in substantial gainful activity since his alleged onset of disability. Plaintiff had severe impairments of "mild compression deformities in the thoracic spine, transitional L5, history of internal fixation of the right iliac crest, borderline intellectual functioning, adult antisocial personality disorder and pain disorder." (A.R.16). The ALJ found that plaintiff did not have an impairment or combination of impairments which met or equaled the requirements of the listing of impairments. The ALJ determined that plaintiff's subjective complaints were not fully credible. (A.R.17-20). The ALJ found that plaintiff retained the residual functional capacity (RFC) for a range of light work:

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to lift and carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk a total of 6 hours during an 8-hour workday with a sit/stand option at will; sit for a total of 6 hours during an 8-hour workday with a sit/stand option at will; occasionally climb, balance, stoop, crouch, kneel, and crawl; avoid concentrated exposure to temperature extremes and wetness; perform one or two-step tasks (and not complicated/detailed tasks); and occasional contact with the public, co-workers and supervisors.

(A.R.17). Plaintiff was unable to perform his past relevant work. Plaintiff was 25 years old as of his alleged onset of disability and 28 years old as of the date of the ALJ's decision. Thus, plaintiff was classified as a younger individual. The ALJ found that plaintiff has a limited education. Given plaintiff's age, the transferability of job skills was not material. The ALJ then turned to the testimony of a vocational expert (VE). In response to a hypothetical question regarding a person of plaintiffs age and with his RFC, education, and work experience, the VE testified that there were approximately 10,500 jobs in the State of Michigan that the hypothetical person would be capable of performing. (A.R.227-28). The ALJ held that this constituted a significant number of jobs. Using Rule 202.18 of the Medical-Vocational Guidelines as a framework, the ALJ found that plaintiff was not disabled. (A.R.14-22).

1.

Plaintiff argues that the ALJ's credibility determination regarding plaintiffs subjective complaints is not supported by substantial evidence. This court does not make its own credibility determinations. See Walters v. Commissioner, 127 F.3d at 528; see also Lawson v. Commissioner, 192 F. App'x 521, 528 (6th Cir. 2006). The court cannot substitute its own credibility determination for the ALJ's. The court's "review of a decision of the Commissioner of Social Security, made through an administrative law judge, is extremely circumscribed. . . ." Kuhn v. Commissioner, 124 Fed.Appx. 943, 945 (6th Cir.2005). The Commissioner's determination regarding the credibility of a claimant's subjective complaints is reviewed under the deferential "substantial evidence" standard. "Claimants challenging the ALJ's credibility determination face an uphill battle." Daniels v. Commissioner, 152 Fed.Appx. 485, 488 (6th Cir. 2005). "Upon review, [the court must] accord to the ALJ's determinations of credibility great weight and deference particularly since the ALJ has the opportunity, which [the court] d[oes] not, of observing a witness's demeanor while testifying." Jones, 336 F.3d at 476; see West v. Commissioner, No. 06-5763, 2007 WL 1991059, at *4 (6th Cir. July 15, 2007). "The ALJ's findings as to a claimant's credibility are entitled to deference, because of the ALJ's unique opportunity to observe the claimant and judge [his] subjective complaints." Buxton v. Halter, 246 F.3d at 773. "Since the ALJ has the opportunity to observe the demeanor of the witness, his conclusions with respect to credibility should not be discarded lightly and should be accorded deference." Casey v. Secretary of Health & Human Servs., 987 F.2d 1230, 1234 (6th Cir.1993).

Plaintiff argues that the ALJ failed to give specific and valid reasons for his credibility determination. (Plaintiff's Brief at 11, docket # 9). I find that plaintiff's argument is meritless. The ALJ's discussion of plaintiffs credibility is lengthy. Thus, it is incorporated herein by reference. (A.R.17-20). The following paragraph is illustrative of the numerous reasons the Aid gave for his factual finding that plaintiffs testimony regarding his functional limitations was not fully credible:

The claimant's self-imposed limitations cited above are inconsistent with the objective medical record. No physician, treating or consultative, prescribed naps for the claimant or the extensive restrictions [o]n lifting, walking, standing and sitting that the claimant testified to at the hearing. There is no medical explanation for the claimant's "shakiness" in his hands resulting in problems for him drawing and writing. Furthermore, the claimant's credibility is questionable. He gives May 12, 2003, as his alleged onset and told the consultative psychologist that he stopped working because of back problems, stress at home and relationship difficulty (Exhibit 5F [A.R. 161] ). However, in his workers' compensation claim, the claimant contended that he got hurt at work in September of 2002 which exacerbated his back condition (Exhibits 7F and 8F).^[1] Treatment notes do not support this assertion. Notably, the claimant received medical treatment on August 20, 2002, and then on December 3, 2002 (Exhibit [4]F [A.R. 152-53]). He did not get treatment in September 2002 nor is there any mention of a work injury in treatment notes dated December 2, 2002.

(A.R.19). Upon review, I find that the ALJ's credibility determination is supported by more than substantial evidence.

2.

Plaintiff disagrees with the ALJ's finding that he retained the RFC for a limited range of light work. RFC is the most, not the least, a claimant can do despite his impairments. 20 C.F.R. § 404.1545(a); Griffith v. Commissioner, 217 Fed.Appx. 425, 429 (6th Cir.2007). RFC is a determination made by the ALJ based upon all the evidence within the record. Walters, 127 F.3d at 531. "Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category if it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities." 20 C.F.R. § 404.1567(b); see Longworth v. Commissioner, 402 F.3d 591, 596 (6th Cir. 2005). Plaintiff presented very little medical evidence in support of his claim for DIB benefits. The evidence supports the ALJ's decision. Upon review, I find that the ALJ's RFC determination is supported by more than substantial evidence.

3.

Plaintiff argues that the hypothetical question posed to the vocational expert was inadequate. (Reply Brief at 2-3, docket # 11). A VE's testimony in response to a hypothetical question accurately reflecting a claimant's functional limitations provides substantial evidence supporting the Commissioner's decision.^[2]See Varley v. Secretary of Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987). A hypothetical question is not required to list the claimant's medical conditions, but is only required to reflect the claimant's limitations. Webb v. Commissioner, 368 F.3d 629, 633 (6th Cir.2004); see Cooper v. Commissioner, 217 Fed. Appx. 450, 453 (6th Cir.2007). The ALJ found that plaintiffs subjective complaints were not fully credible, and it is well settled that a hypothetical question to a VE need not include unsubstantiated complaints. See Casey v. Secretary of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir.1993); see also Griffeth v. Commissioner, 217 Fed.Appx. 425, 429 (6th Cir. 2007); Chandler v. Commissioner, 124 Fed.Appx. 355, 358-59 (6th Cir.2005); Turcus v. Social Security Admin., 110 Fed.Appx. 630, 632 (6th Cir.2004). I find that plaintiffs argument does not provide a basis for disturbing the Commissioner's decision.

4.

Plaintiffs argument that the ALJ did not allow testimony from lay witness Monica Walls "to develop the severity of plaintiffs mental impairment" is frivolous. The hearing transcript shows that after lengthy questioning of plaintiff by the ALJ and plaintiff's attorney (A.R.210-25), the ALJ asked plaintiffs counsel whether he believed that testimony from Monica Walls^[3] was necessary:

ALJ: Is it necessary to bring in the witness? Is she going to add anything that has not been said today?

ATTY; I think she probably would be able to tell you a lot about his depressive state of mind and the fact that he doesn't do a whole lot anymore, can't do it.

ALJ: Okay. We have that already in the record and I have his symptoms in the record. I think I have enough for that.

ATTY: All right.

ALJ: All right? Next we're going to hear from Mr. Holwerda

(A.R.225). The transcript shows that the ALJ never made any ruling, that precluded plaintiffs attorney from calling Monica Walls as a witness. Plaintiffs attorney acquiesced that testimony from Ms. Walls was unnecessary.

Plaintiff argues that if the ALJ had done more to develop the record by questioning Ms. Walls at the hearing, the ALJ would have found that plaintiff was disabled. (Plaintiffs Brief at 7, 8; Reply Brief at 4, 5). This is pure conjecture. Plaintiff's attorney made no offer of proof at the hearing. The court must work with the evidence presented to the ALJ, not with counsel's arguments, in hindsight, regarding evidence that might have been submitted. See Jones v. Commissioner, 336 F.3d at 478; Foster v. Halter, 279 F.3d 348, 357 (6th Cir.2001). Moreover, the record shows that the ALJ did fully and fairly develop the record. See Daniels v. Commissioner, 152 Fed.Appx. 485, 489 (6th Cir.2005). It was plaintiffs burden to produce evidence in support of his disability claim. See Landsaw v. Secretary of Health & Human Servs., 803 F.2d 211, 214 (6th Cir.1986); see also Struthers v. Commissioner, No. 98-1528, 1999 WL 357818, at * 2 (6th Cir. May 26, 1999) ("[I]t is the duty of the claimant, rather than the administrative law judge, to develop the record to the extent of providing evidence of mental impairment."); Cook v. Chater, No. 95-2254, 1996 WL 338525, at *1 (6th Cir. June 18, 1996) ("burden of providing a complete record rests with plaintiff'). The ALJ's special duty to pro se parties to develop the record does not extend to plaintiff, because plaintiff had legal representation at the hearing. See Trandafir v. Commissioner, 58 Fed.Appx. 113, 115 (6th Cir.2003) ("Only under special circumstances, i.e., when a claimant is without counsel, and is unfamiliar with hearing procedures, does an ALJ have a special, heightened duty to develop the record."); see also Rise v. Apfel, No. 99-6164, 2000 WL 1562846, at *2 (6th Cir. Oct. 13, 2000); Lashley v. Secretary of Health & Human Servs., 708 F.2d 1048, 1051-52 (6th Cir. 1983). I find that plaintiff's arguments regarding testimony Ms. Walls might have offered do not provide a basis for disturbing the Commissioner's decision.

Recommended Disposition

For the reasons set forth herein, I recommend that the Commissioner's decision be affirmed.

August 27, 2007.

NOTES

[1] In internal fixation, fractured bony parts are stabilized by directly affixing them to one another with surgical wires, screws, rods, pins, or plates. STEDMAN'S MEDICAL DICTIONARY 738 (28th ed.2006).

[2] The ilium is the broad, flaring portion of the hip bone. It is bordered superiorly by a thicker crest. "The body transmits the weight of the trunk to the femur [the long bone of the thigh], whereas the ala [upper flaring portion of the ilium] and [iliac] crest provide for muscle attachment and protect abdominopelvic viscera [organs]." STEDMAN'S MEDICAL DICTIONARY (28th ed.2006) at 42(ala), 709 (femur), 947 (ilium), and 2136 (viscus/viscera).

[3] According to the American Psychiatric Association,

The essential feature of this disorder is a pattern of irresponsible or antisocial behavior beginning in childhood or early adolescence and continuing into adulthood. For this diagnosis to be given, the person must be at least 18 years of age and have a history of Conduct Disorder before the age of 15.

Lying, stealing, truancy, vandalism, initiating fights, running away from home, and physical cruelty are typical childhood signs. In adulthood the antisocial pattern continues, and may include failure to honor financial obligations, to function as a responsible parent or to plan ahead, and an inability to sustain consistent work behavior. These people fail to conform to social norms and repeatedly perform antisocial acts that are grounds for arrest, such as destroying property, harassing others, stealing, and having an illegal occupation.

People with Antisocial Personality Disorder tend to be irritable and aggressive and to get repeatedly into fights and physical assaults, including spouse or child-beating. Reckless behavior without regard to personal safety is common, as indicated by frequently driving while intoxicated or getting speeding tickets. Typically, these people are promiscuous (defined as never having sustained a monogamous relationship for more than a year). Finally, they generally have no remorse [about] the effects of their behavior on others; they may even feel justified in having hurt or mistreated others. After age 30, the more flagrantly antisocial behavior may diminish, particularly sexual promiscuity, fighting, and criminality.

State v. DiFrisco, 174 N.J. 195, 804 A.2d 507, 542 n. 1 (2002) (quoting DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 342 (3d ed. Rev.1987) ("DSM III-R")).

"[A]ntisocial personality disorder, a disorder also referred to as psychopathy or sociopathy . . . is characterized by callousness, cynicism, and contempt for the feelings, rights, and suffering of others." Roper v. Simmons, 543 U.S. 551, 573, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (Kennedy, J., for the Court) (citing American Psychiatric Ass'n, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 701-06 (4th ed. Text Rcv.2000) ("DSM IV-TR")). See also Schriro v. Landrigan, ___ U.S. ____, 127 S.Ct. 1933, 1953 n. 11, 167 L.Ed.2d 836 (2007) (Stevens, J., dissenting o.g., joined by Souter, Ginsburg, & Breyer, JJ.) (adopting expert's affidavit testimony that "individuals with antisocial personality disorder ``typically act irresponsibly] across areas of their daily lives with decisions characterized by impulsivity'") (alterations omitted).

[4] "Somataform pain disorder is indicated where: (1) pain is the predominate complaint; (2) the pain causes clinically significant impairment; (3) psychological factors have an important role in triggering the pain; (4) the symptom or deficit is not intentionally produced or feigned; and (5) the pain is not better accounted for by a mood, anxiety, or psychotic disorder." Wilson v. Barnhart, 82 Fed.Appx. 204, 210 n. 4 (10th Cir.2003) (citing DSM IV-TR at 485 and 503).

[5] See, e.g., Hopkins v. Comm'r of Soc. Sec., 96 Fed.Appx. 393, 395 (6th Cir.2004) (Kennedy, Martin, & Rogers, JJ.) (per curiam) ("The ALJ noted that Hopkins' subjective complaints, including pain, were disproportionate with, and not supported by, the objective evidence in the record. The ALJ acknowledged that Hopkins did experience some discomfort. However. . . . Although Hopkins complained of drowsiness, nausea, and blurred vision, these conditions were not documented in the record. [T]he ALJ did not commit reversible error in rejecting Hopkins' testimony.");

Long v. Comm'r of Soc. Sec., 56 Fed.Appx. 213, 214 (6th Cir.2003) (per curiam) (Keith, Krupansky, & Clay, JJ.) (ALJ did not err in rejecting plaintiff's claim of disabling migraines; although "a diagnosis of migraine headaches was made, and the headaches were noted to occur as often as several times a week," brain scans and EEG exams were normal and there was no other objective medical evidence to substantiate the alleged severity of the headaches).

[6] Contrast Davis v. Sec'y of HHS, 1993 WL 742658, *15 (W.D.Mich. Sept. 21, 1993) (McKeague, J.) ("[T]he ALJ asked the vocational expert if any low stress sedentary unskilled jobs existed which a person of plaintiff's education and past work experience could perform. The vocational expert listed positions as a cashier, non-typing receptionist and gatekeeper. * * * The medical evidence of plaintiff's mental impairment and his testimony (which the ALJ found generally consistent with the medical evidence) does not support the ALJ's finding that plaintiff can perform low stress jobs. Thus, the hypothetical did not accurately portray plaintiff's mental impairments, and the vocational testimony and is not substantial evidence that plaintiff could perform substantial gainful activity. . . .") (emphasis added).

[7] Moreover, if Luteyn did not raise this issue (the ALJ's refusal to permit his girlfriend to testify) before the SSA Appeals Council, that would be an independent basis for concluding that he failed to preserve the issue for appeal to this court. See Weikert v. Sullivan, 977 F.2d 1249, 1254 (8th Cir.1992) ("Weikert next argues that the ALJ's behavior at the hearing displayed such hostility to Weikert that it deprived Weikert of his right to an impartial hearing. * * * Since Weikert complains of the ALJ's behavior at the hearing, he clearly had the information he needed in order to object at the Appeals Council stage. Weikert's failure to raise the argument at the agency level would ordinarily prevent him from raising it in judicial proceedings.") (emphasis added) (citing Hix v. Dir. of OWCP, 824 F.2d 526, 527 (6th Cir.1987)); Millmine v. Sec'y of HHS, 69 F.3d 537, 1995 WL 641300, *2 (6th Cir. Oct. 31, 1995). (per curiam) (Krupansky, Norris, & Suhrheinrich) ("Plaintiff next claims to have been denied a fair and impartial hearing. . . . This court need not reach the merits of plaintiff's claim. * * * [P]laintiff failed to object to ALJ Stalker's potential bias at the administrative level despite ample opportunity to do so.").

The court need not decide the issue of possible waiver at the Appeals Council level, because Luteyn already waived the issue by failing to object at the administrative hearing.

[8] Cf. Meier v. Levinson, 1992 WL 473974, *2 (S.D.N.Y. April 13, 1992) ("The state court or state officials cannot be faulted for doing something to which plaintiffs own attorney agreed. Thus, plaintiff's quarrel here is with his attorney. . . . If the attorney improperly gave bad advice, this is not a matter before this court."), aff'd w/o op., 993 F.2d 1534, 1993 WL 166975 (2d Cir. Apr.30, 1993).

[9] To put it another way, if the ALJ had heard the testimony of Luteyn's girlfriend/fiancee, he would not have been obligated to credit her testimony in the absence of corroborating objective medical evidence. See, e.g., Colwell v. Chater, 98 F.3d 1341, 1996 WL 557773, *4 (6th Cir. Sept, 30, 1996) (per curiam) (Martin, Krupansky, Daughtrey) ("[T]he Commissioner must give appropriate weight to lay testimony that is supported by the objective medical evidence. * * * Here, however, the lay testimony, in the form of letters submitted by Colwell's family and friends, is not supported by the objective medical evidence. Accordingly, the [ALJ] did not err in refusing to credit this testimony. . . ."); Malone v. Comm'r of Soc. Sec., 69 F.3d 537, 1995 WL 641280, *2 (6th Cir. Oct. 31, 1995) (per curiam) (Martin, Batchelder, D.J.Edmunds) ("The district court also found that the [ALJ] could have found that the testimony given by Malone's ex-husband and son were [sic] not supported by the objective medical evidence. . . ."). Thus, if it were error not to hear that witness's testimony, it would be harmless error on this record.

Cf. Craig v. Chater, 943 F.Supp. 1184, 1190 (W.D.Mo.1996) ("Plaintiff's wife testified on his behalf regarding the duration, frequency, and intensity of his pain and other subjective complaints. * * * The ALJ specifically addressed the testimony of plaintiff's wife and found it not credible because it was inconsistent with the medical evidence, plaintiff's minimal medical treatment, and the reports of treating and examining physicians.").

Contrast Falk v. Comm'r of Soc. Sec. Admin., 282 F.Supp.2d 1206, 1217 (D.Kan.2003) (holding that ALJ improperly discredited testimony of claimant's husband about her daily limitations and his perception of her limitations, as his testimony was supported by objective medical evidence).

[1] Exhibit 7F (A.R.169-80) is the transcript of a June 2, 2005 deposition of Salena Marie Cox, M.D., taken in plaintiff's workers' compensation case. Dr. Cox testified that she was not plaintiff's treating physician. She first met plaintiff on June 1, 2005, the day before her deposition. (A.R.171, 174). See Kornecky v. Commissioner, 167 F.App.'x 496, 506 (6th Cir.2006) (a single examination does not suffice to create a treating physician relationship). Dr. Cox recorded the history plaintiff provided regarding a purported September 2002 work-related injury. (A.R.171). Dr. Cox offered a diagnosis of "chronic low back pain with some radiculopathy." (A.R.172). Plaintiff's attorney then asked her a very long question, incorporating a series of assumptions, regarding whether plaintiff's September 2002 injury and plaintiff's work until May 2003 "in any way contributed [to] or aggravated [plaintiff's] overall back condition to the point where it resulted in disability." Dr. Cox responded, "At this point, I don't think he would be a candidate for any kind of work." (A.R.172-73). Dr. Cox's statement that plaintiff was unable to work was not entitled to any particular weight. See Stiltner v. Commissioner, No. 06-6207, 2007 WL 2264414, at * 4 (6th Cir. Aug. 7, 2007); see also 20 C.F.R. § 404.1527(e)(1).

Exhibit 8F (A.R.181-95) is the transcript of the deposition of James B. Wessinger, M.D. Dr. Wessinger examined plaintiff on October 14, 2004. Dr. Wessinger found that plaintiff had a history of a remote pelvic fracture in 1997. On examination Dr. Weesinger found that plaintiff had no neurologic deficits and that plaintiff's relatively mild back impairment did not warrant any exertional restrictions. (A.R.184-88).

[2] The 40, 500 jobs identified by the VE constitute a significant number of jobs. See Martin v. Commissioner, 170 F. App'x 369, 374 (6th Cir.2006)(870 jobs constituted a significant number); Jones v. Commissioner, No. 96-2173, 1997 WL 413641, at *2 (6th Cir. July 17, 1997) (1,200-1,500 jobs); Hall v. Bowen, 837 F.2d 272 (6th Cir.1988) (1,350 jobs); Lee v. Sullivan, 988 F.2d 789, 794 (7th Cir.1993) (1,400 is a significant number, and collecting cases where as few as 174 positions were found to be a significant number).

[3] Plaintiff initially testified that Monica Walls was his girlfriend (A.R.212), but he generally referred to her as his fiancee. (A.R.212, 224). The record shows that plaintiff's relationship with Ms. Walls had been long-term (A.R.161, 224). Ms. Walls had been sequestered during plaintiff's testimony. (A.R.209-10).