NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0656n.06 No. 12-2454 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT JAMES D. WATTERS,
P laintif f-App ellant,

v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendan t-Appellee. ) ) ) ) ) ) ) ) ) ) ) ON AP P EAL F RO M THE UNITED S T ATES DISTRICT COURT F OR THE EASTE RN DISTRICT OF M ICHIGAN

Before: SILER, CLAY, and GIBBONS, Circuit Judges. JULIA SMITH GIBBONS, Ci rc uit Judge. J ames Watters appea ls the district court’s judgme nt aff

irming the Commi ssioner’s denial o f S o cial Security disability insurance benef its.
Watters does not dispute the fact that he failed to present any medical recor ds that wer e produced during the time period during which he asser ts that he was entitled to disability insurance benef its.
Howeve r, he a

rg ues that the medic al evidenc e that he did provide is s ufficie nt to demonstrate that his medical conditions wer e chronic and develope d during the rele vant time period. He also arg ues that his hear ing was n o t “full and fair” and deprived hi m of due proce ss. Be cause Watters failed

to meet his burden at step two of the sequential evalua tion proce ss of demonstrating that he suffe red from a sever e impairment, and beca use Watte rs wa s n o t denied due proce ss, we AF F IRM the judgme nt of the district court.

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W atters v. Commissioner of Social Security I. This court re views de novo a district cour t’s decision re g arding Social Security disability benef its. Gayhe art v. Comm’r of Soc. Sec. , 710 F.3d 365, 374 (6th Cir. 2013). T h at re v iew, howeve r, is limit ed to a deter mination of “whe ther the Commi ssioner’s decision is s u p p o rt ed by substantial evidenc e and was made pursuant to proper leg al standards.” Cole v. A strue , 661 F.3d 931, 937 (6th Cir. 2011) (quoting Ealy v. Comm’r of Soc. Sec. , 594 F.3d 504, 512 (6th Cir. 2010)). Substantial evidenc e is “such releva nt evidenc e as a reasonable mind mi gh t ac cept as adequa te t o support a conclusion.” Heston v. Comm’r of Soc. Sec. , 245 F.3d 528, 534 (6th Cir. 2001) (interna l quotation marks omitted). We will aff irm the Commi ssioner’s decision if supported by substantial evidenc e, even if substantial e vidence would also have supported the opposite conclusion. Colvin v. Barnhart , 475 F.3d 727, 730 ( 6th Cir. 2007). The Commi ssioner follows a five-ste p sequential evalua tion proce ss, descr ibed at 20 C.F.R. § 404.1520, to deter

mine if a claimant is entitled to d isability insurance benef its, which we have summarized as follows:
1. I f cla imant is doing substantial g ainful ac tivity , he is not disabled. 2. I f claimant is not doing substantial g ainful activity , his impairment must be sever e befor e he c an be f

ound to be disabled. 3. I f claimant is not doing substantial g ainful activity and is suffe ring from a sever e impairment t h at has lasted or is expected to last for a continuous period of at least twelve months, and his impairment meets or equals a listed impairment, claimant is presumed disa

bled without further

inquiry

. 4. I f claimant’s impairment does not preve nt him from doing his past rele vant work, he is not disabled. 5

. Even if claimant’s impairment does preve nt him from doing his past re l ev an t work, if other work exis ts in the national economy that acc ommodates his residual functional capa city and vocational fac tors (ag e, education, skill s , et c.), he is not disabled. -2-No. 12-2454

W atters v. Commissioner of Social Security Gayhe art , 710 F.3d a t 374–75 (citing W alters v. Comm’r of Soc. Se c. , 127 F.3d 525, 529 (6th Cir. 1997)). Watters applied for disability insurance benef its on April 9, 2008, alleg ing a disability onset date of Dec emb er 3 1 , 2 002. For purposes of deter mining Watters’s elig ibilit y for benef its, the rele vant ti m e p er i o d runs from his alleg ed onset date to his date last insured, here Dec ember 31, 2002, to Dece mber 31, 2007.
At step one of the sequential evalua tion proce ss, the AL J conclude d that Watters di d n o t
eng ag e in substantial g ainful activity during the rele vant time period. At step two, he conclude d that “ther e wer e no medi cal signs or labora tory finding s to substantiate the exis tence of a medically deter minable impairment.” There fore , the AL J conclude d that Watters was not disabled and denied his application for benefits. Watters appea led t his decision t o the Appeals Council, which denied his reque st for revie w on September 28, 2010. On J une 17, 2011, the Appea ls Council vacated that denial and allowed Watters an extension of time “to g ather more evidenc e or make additional
arg uments.” Watters provided “medica l rec ords dated from 1978 throug h 1980 as well as a third party statement from a former cowor ker.” The Appea ls Council noted that this evidenc e was “insuffic ient to c hang e the Administrative L aw Judge ’s dec ision” and ag ain denied his r equest for revie w. Watters then fil ed a complaint in the Unit ed S tates Dist rict C o urt for the Easter n District of Michig an, challeng ing the AL J ’s denial of disability insurance benef its. The distri ct court aff irmed the Commissioner’s deter mination. This ti mely

appea l followed.
II.
Watters arg ues t hat although he failed to provide medical eviden ce from the rele vant t ime period, the medical evidenc e that he did provide is s u ff i ci en t t o demonstrate that his medical -3-No. 12-2454

W atters v. Commissioner of Social Security conditions wer e chronic and develope d during the relevant t ime period. “Unde r t he prevailing de
minimis view, an impairment can be considered n o t s ev ere only if it is a slight abnorma lity that minimally aff

ects work ability reg ardle ss of ag e, education, and experience .” Higgs v. Bowen , 880 F.2d 860, 862 (6th Cir. 1988). Although the standard is de minimis , the plaintiff st i l l b ea rs t he burden of demonstrating that h e suffe rs from a medically deter minable phy sical impairment—a burden that require s “medica l signs and labora tory finding s.” SSR 96-4p, 1996 WL 374187, at *1.
Her e, the rele vant t ime period, for purposes of d et er m i ning Watters’s elig ibilit y for benefits, runs from Dec ember 31, 2002, to Dec ember 31, 200 7

. W at t ers conce des that “ther e are no medical

rec ords from 2002 throug h 2007.” Howeve r, he asser ts that his trea ting phy sician Dr. Michae l Kopec ’s s tatement provides sufficient evidence that Watters’s m edica l condition was chronic and
prese nt during the re levant per iod. The letter f rom Dr. Kope c, wr itten in October 2009, state s: T h i s l ett er is written on behalf of Mr. J ames Watters. I was asked to estima t e t h e onset of Mr. Watters’ curr ent state of disa bility

. As y ou know, Mr. Watters was in a moto r v eh i cl e co llisi on in 1976 that cause d multipl e injuries. Acc o rd i ng to Mr. Watters, the larg e majority of his curr ent complaints stem from that event. Although his phy sical condition beg an to de cline throug hout the 1990s, Mr. W atters reports t hat hi s curr ent l evel of disability beg an around the y ear 2000. Despite his limit ations, he continued to work full time for two more y ear s due to the need for a s t ea dy income. He stopped working full time in 2002. Mr. Watters states that he become s easily fatig ued and is not able to perf orm the functions that his work re quires bec ause of his c hronic pain. He has pain when perf orming the tasks re quired of his pr ofession, such as climbing stairs and ladde rs and lifting heavy items. Even lighter and more sedenta ry activity is difficult for Mr. Watters seconda

ry to his pain complaints.
Mr. Watters established car e with me this past J uly

. Unfortuna tely a larg e majority of hi s medical re cords pr evious to the curr ent time wer e not available to me. Over the past fe w months, Mr. Watters has had multipl e im ag ing studies perf ormed. X-

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W atters v. Commissioner of Social Security
ray s of his lumbar spine reve aled modera te-to-se vere deg ener ative disc disease with sever e joint space nar ro wi n g at one joint space . His follow-up MRI once ag ain reve aled deg ener ative disc disease in his lower spine as well as deg ener ative spinal stenosis at one verte bral level and possible disc impingeme nt upon one of his nerve roots. X-ra

y s of his knees show some mild os teoar thritic chang es i n his rig ht knee and mild-to-modera te osteoar thritic chang es in his left knee

. The finding s on x -ra

y and MRI repr esent chang es that are chronic in nature , and his imag ing finding s seem to co rr es p o n d to his pain complaints and his clinical prese ntation. Although I cannot provide a definite date of disability at Mr. Watters’ curr ent level of limit ation, I can rea sonably conclude from objective imag ing that Mr. Watters’ pain complaints orig in at e fr o m proce sses that are chronic in nature

. There fore , it is rea sonable that Mr. Watters’ curr ent state of phy sical limit ation could have be g un at the spec ified time that he re ports. The AL J noted that Watters prese nted evidenc e of his motorcy cle a ccide nt from 1976. He noted that, at the time, Watter s was 19 y ear s of ag e and suffe red from abra sions, a swollen knee , a tibial fra cture that was debride d and irrig ated, rig ht knee arthroc entesis, and a delay ed union of the tibia on the left side. T h e next medical evidenc e addre ssed by the AL J was Watters’s ER rec ord from 2008, in which he had a swollen ankle, but no fra cture or defor mity

. Finally , the AL J addre ssed
Dr. Kopec ’s repor

t from October 2 0 0 9 , i n which the doctor evalua ted the nature of Watters’s condition and concluded that his X-ra y and MRI imag es indicate a chr onic condition and that it is

rea sonable to conclude that the back issues could have beg un i n 2 0 00 as allege d by Watters. The
AL J indicated that “the claimant’s failure to seek an d fo l l ow a reg ular course of trea tment is an indication of non-disability ” and that “ther e is insufficient evidenc e to substantiate the exis tence of a medica lly

deter minable impairment prior to De cembe r 31, 2007, the da te last insured.” Under the trea ting phy sician rule, the AL J is require d to gi ve a trea ting source ’s opinion controlling weig ht if it is “we ll-supported by medically acc eptable clinical and labora tory diag nostic

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W atters v. Commissioner of Social Security techniques and is not inconsistent with the other substantial evidenc e in [t he] ca s e re co rd.” 20 C.F.R. § 404.1527(c) (2). I f the trea ting source ’s opinion is not g iven controlling weig ht, an AL J is require d to consider “the leng th of the trea tment rela tionship and the fre quency of examination, the

nature and extent of the trea tment rela tionship, supportability of the opinion, consi s t en cy o f the opinion with the rec ord as a whole, and the specia liz ation of the trea ting source ” in deter mining what weig ht to g ive the opinion. W ilson v. Comm’r of Soc. Sec. , 378 F.3d 541, 544 (6th Cir. 2004). The
AL J must “g ive g ood rea sons” for the wei gh t g iven to the trea ting source ’s opinion. 20 C.F.R. § 404.1527(c) (2). Fa ilure to comply with this require ment, howeve r, may be deeme d harmless err or if “‘( 1) a trea ting source ’s opinion is so patently defic ient that the Commi ssioner could not possibly

cr ed i t i t; (2) if the Commi ssioner adopts the opinion of the trea ting source or makes fin d i n gs consistent wi t h t h e opinion; or (3) wher e the Commi ssioner has met the g oal of § 1527(d)( 2)

. . . even though [he] has not complied wi t h the terms of the reg ulation.’” Cole v. Astrue , 661 F.3d 931, 940 (6th Cir. 2011) (quoting Friend v. Comm’r of Soc. Sec. , 375 F. App’x 543, 551 (6th Cir. 2010)). The AL J descr ibed Dr. K opec’ s opinion letter by noting that:
Dr. Kopee [si c] stated in a letter that it is rea sonable to conclude that the back issues could have beg un in 2002 as alleg ed by the claimant. He noted that MRI evidenc e from 2009 ind ic ates deg ener ative disc disease in the lumbar spine sug g estive of nerve root impingeme nt. 2009 x ray s of the knees show os t eoarthritic chang es in the bilatera l knees. I n an eff

ort to help the claimant he states that the issues could have been prese nt for many y ear s. Howeve r, there is simply n o medical evidenc e to support this conclusion. The claimant stopped working in 2002 beca use it involved activity that was becoming too strenuous for him. However, there are simply no medical r ecor ds from 2002 to the end of 2007.

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W atters v. Commissioner of Social Security I n this case , Dr. Kopec’s opinion as i t rela tes to t h e relevant period is not “we ll-supported by medically

acc eptable c linical and labora tory diag nostic techniques.” I n fac t, it is not supporte d by any thing other than Dr. Kopec ’s i n fe rr ed onset date of Watters’s disability , which he bases entirely on his conclusion that Watters’s condition is “chr onic” and that it would be “re asonable ” to conclude that his disability “could have beg un at the specifie d time that he repor ts”—7 y ear s prior

t o Dr. Kopec ’s evalua tion. The AL J would have done well to have clea rly articula ted t h at Dr

. 1 Kopec ’s opinion w as discounted due to ( 1) the limit ed leng th of the trea tment relationship, (2) the fac t that all of hi s medical ex aminations post-dated the rele vant period by two to seven y ear s, and (3) the fac t that the opinion was not supported by any objective evidenc e from the rele vant period.
Neve rtheless, Dr. Kopec ’s opinion was so “pate ntly defic ient” that the AL J could not possibly have

cre dited it. There fore , his failure to explain his “g ood rea sons” for not g ranting controlling weig ht to Dr. Kope c’s opinion is proper ly viewed a s harmless er

ror. Absent additional evidenc e and g iven the re duced w eig ht give n to Dr. Kopec ’s opinion, it i s cl ea r t hat W atters failed t o meet his burden to establish the ex istence of a severe impairment at step two. This case prese nts fac ts simil ar to those evalua ted in Key v. Callahan , 109 F.3d 270 (6th Cir. 1997). I n that case , the AL J deter mined that the claimant had not demonstrated that he suffe red from a disabl i n g m en t al impairment wher e the only support in the rec ord for his claim was the testimony and medical rec ords of a doctor with w hom he beg an trea tment one month afte r he filed

We note that Dr. Kopec did rely on X-ra y s of Watters’s lumbar spine and knees, as well as 1 an MRI of his spine. Howeve r, these imag ing studies wer e perf ormed in 2009, substantially outside of the re levant time per iod.

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W atters v. Commissioner of Social Security a cla im for disability

benef its. Key , 109 F.3d a t 273. The court noted t hat althoug h the testimony and records may support a finding of disability “today , they will not support a finding that he was disabled as of

the date of

the expiration of his insured status.” Id

. I n Key , we explained that “it is sig nificant that [t he claimant] soug ht no medical assistance for any mental impairment until” his visits afte r filing for disability benef its. Key , 109 F.3d at 274. Simi larly , here , the AL J noted that “[t] he cla imant’s failure to seek and follow a reg ular course of

trea tment is an indication of non-disability .” Watters arg ues that this conclusion is contra ry to SSR 96-7p, which require s that “the adjudicator must not draw any infere nces about an indiv i d u al’s
sy mptoms and their functional eff ects from a failure to seek or p u rs u e re gular medical trea tment without first considering any explanations that the individual may provide.” SSR 96-7p, 1996 WL 374186, at *7.
At the hear ing, Watters testified that “I was g oing to the doctor, but my insurance was g oing

to be canc elled, and I didn’t g o back to the doctor no more, until I found out I could g et some insurance throug h the

. . . County health plan here locally , so I could at least g et to a doctor. That’s why my rec ords are so hit and miss.” L ater , he explained “I didn’t g o to doctors and owe a bill that
I couldn’t pay . I didn’t know I could g et health insurance throug h the county unti l re ce n t l y .”
Howeve r, in this case , whether Watters failed to s ee k m edical trea tment for a leg itimate or an illegitimate rea son, the fac t r emains that Watters bear s the burden of demonstrating that he suffe rs from a medically deter

minable phy sical impairment—a burd en t hat require s “medica l signs and labora t ory finding s demonstrating the exis tence of a medically deter minable phy sical or mental

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W atters v. Commissioner of Social Security impairment.” SSR 96-4p, 1996 WL 374187, at *1. This is a case in w hich the very exis tence of a disability is at issue. The AL J did not consider Watters’s failure to se ek trea tment as an indication that his sy mptoms or functional eff

ects wer e less than he prese nted them to be, as prohibited absent further inquiry by SSR 96-7p. 1996 WL

374186, at *7. Rather, he rec og nized that W atters f ailed

to meet his burden of establishing the exis tence of a disability , a burden for which the Commi ssioner require s “medica l signs and la boratory finding s.”
III.
Watters also arg ues that he was denied due proce ss when he did not rec eive a “full and fair” hear ing befor e the AL J

. Wa t t er s d i d n ot raise his due proce ss claim in his complaint and did not seek leave to amend his complaint to asser t this claim. He first addre ssed due proce ss in his motion for summary judgme nt. The Commi ssioner responde d in her cross-motion for summary judgme nt.
T h e m agi strate judge , and the district court in its adoption of the repor t and rec ommendati o n , addre ssed the issue. There fore , this issue has b ee n t ri ed by consent and the complaint has been constructively amende d. Wright & Miller, 6A Fe d. Practice & Procedur e § 1493. The issue is thus
proper ly befor e us. An applicant for Social Security benef its has a Fif

th Amendment proper

ty interest in those benef its. Flatford v. Chater , 93 F.3d 1296, 1304–05 (6th Cir. 1996); see also Richardson v. Perales , 402 U. S

. 3 89, 401–02 (1971). Due proce ss require s that a claimant’s hear ing be “funda mentally fair.” Perales , 402 U.S. at 401–02. Evaluation of a due p ro ce s s claim require s consideration of three fac tors: (1) “the private interest that will be aff ecte d by the officia l action”; (2) “the risk of an

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W atters v. Commissioner of Social Security

err oneous depriva tion of such interest throug h the proce dures used, and the probable value, if any , of additional or substitut e proce dural safe g uards” ; and (3) “the Gover nment’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitut e
proce dural re quirement would e ntail.” Flatford , 93 F.3d a t 1306.
Watters arg ues that he was denied due proce ss beca use his he aring lasted nine minutes and

was transcr ibed in less than eig ht pag es. He asser ts that the AL J “should have allowed [W atters] to testify in full . . . [ and] should have obtained additi onal information fr om [ Dr. Kope c] pursuant to
20 C.F.R. 404.1527.” At the h ea ri n g, the AL J noted the absenc e of objective medical evidenc e rele vant to the time period for which Watters soug ht disability benef its. The AL J adjourne d the hear ing to allow Watters to cure this defic iency , stating that “[y ]ou need a medical opinion that say s
t h at p ri o r t o 2 0 07, y ou had cer tain medical issues, and they wer e causing y ou to be not able to function. Your attorney knows how to addre ss those issues, so I ’m g oing to g ive y ou 30 day s to visit with those doctors.” After the AL J g ave Watters an additional thirty day s in which to submit a rele vant medical opinion, Watters produce d only the letter from Dr. Kopec and no medical rec ords from the rele vant time period. The AL J was under no obliga tion to investiga te Watters’s case for him. The reg ulation cited by Watters provides that AL J s “may ask for and consider opinions from medical experts,” but it does not impose a require ment on them to do so. Rather, this court has consistently aff irmed that the claimant bear s the burden of producing sufficie nt evidenc e to show the exis tence of a disability

. Harley v. Comm’r of Soc. Sec. , 485 F. App’x 802, 803 (6th Cir. 2012) (citing Her v. Comm’r of Soc.

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W atters v. Commissioner of Social Security Sec. , 203 F.3d 388, 389 (6th Cir. 1999)). Although the interest at stake is undoubtedly g rea t, the AL J provided a rea sonable opportunity for Watters to produce the evidenc e that could have supported his claim. The Appea ls Council also provided him additional time to produce rec ord evidenc e. Watters did not seek additional time to find rele vant rec ords on eit h er o cc as i o n. Be cause a finding of disability require d objective medical evidenc e that Watters faile d t o provide, Watters cannot articula te how additional proce ss would have aided him in prese nting his case . There is no way to 2
evalua te the burden to the g overnme nt of any additional proce ss soug ht by Watters, as no additional
proce ss could reme dy the absenc e of medical rec ords. As such, Watters cannot demonstrate that he

rec eived less pr ocess than he was due

. IV. We affir m the judgme nt of the district court.

I n his brief, Watters arg ues that he and his lay witness should have been g iven the 2 opportunity to testify fully

. Howeve r, neither of these wi t n es s es wer e capa ble of curing the fata l defe ct in Watters’s case beca use they co u l d not provide medical evidenc e from the rele vant time period.

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