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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CATHERINE HOELSCHER,

Plaintiff,

v.

COMMISSIONER OF SOCIAL

SECURITY, 

Defendant.

___________________________________ /

Case Number: 09-11581

HON. MARIANNE O. BATTANI

UNITED STATES DISTRICT JUDGE

HON. VIRGINIA M. MORGAN

UNITED STATES MAGISTRATE JUDGE 

REPORT AND RECOMMENDATION

This is an action for judicial review of the defendant’s decision denying plaintiff’s 2005

application for social security disability benefits and supplemental security income (SSI).

Plaintiff alleged that she became disabled as of 2002 because of musculoskeletal and emotional

impairments. After a hearing before an ALJ with testimony from plaintiff and a vocational

expert, the defendant found that plaintiff had severe impairments, could not perform her past

relevant work, but could perform a significant number of limited light exertional level jobs, and

therefore, was not disabled. (Tr. 17-26) Plaintiff contends that the determination is not supported

by substantial evidence and that the ALJ improperly disregarded plaintiff’s complaints of pain..

Defendant contends otherwise. For the reasons discussed in this report, it is recommended that

the decision denying benefits be affirmed.

Standard of Review

The issue before the court is whether to affirm the Commissioner's determination. In

Brainard v. Secretary of HHS, 889 F.2d 679, 681 (6th Cir. 1989), the court held that:
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Judicial review of the Secretary's decision is limited to determining whether the

Secretary's findings are supported by substantial evidence and whether the

Secretary employed the proper legal standards in reaching her conclusion. 42

U.S.C. §405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.

Ed. 2d 842 (1971). Substantial evidence is more than a scintilla of evidence but

less than a preponderance and is such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion. Consolidated Edison Co. v.

NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L. Ed. 2d 126 (1938). The scope of

our review is limited to an examination of the record only. We do not review the

evidence de novo, make credibility determinations nor weigh the evidence.

Reynolds v. Secretary of Health and Human Services, 707 F.2d 927 (5th Cir.

1983).

Brainard, 889 F.2d at 681. 

To establish a compensable disability under the Social Security Act, a claimant must

demonstrate that he is unable to engage in any substantial gainful activity because he has a

medically determinable physical or mental impairment that can be expected to result in death or

has lasted, or can be expected to last, for at least 12 continuous months. 42 U.S.C. §

423(d)(1)(A); 20 C.F.R. § 416.905(a). If a claimant establishes that he cannot perform his past

relevant work, the burden is on the Commissioner to establish that the claimant is not disabled

by showing that the claimant has transferable skills which enable him to perform other work in

the national economy. Preslar v. Secretary of HHS, 14 F.3d 1107 (6th Cir. 1994); Kirk v.

Secretary of HHS, 667 F.2d 524, 529 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983). 

Background

Plaintiff testified at the hearing before the ALJ. She was 39 years old at the time of her

alleged onset date and 45 at the time of the ALJ’s decision. She lives in Westland and graduated

from high school. Plaintiff worked for more than ten years at Ford where she performed

unskilled auto assembly work and is medically retired from there. (Tr. 25, 189, 447) She

redeemed her worker’s compensation in 2007 for $87,631. (Tr. 23) Plaintiff testified as to her
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physical problems which included pain and weakness in her back, knees, shoulders, and feet, as

well as urinary incontinence which had not improved despite surgery. (Tr 429-32, 433-35)

Plaintiff also reported emotional impairments of depression, bipolar disorder, and anxiety. These

resulted in difficulty making decisions, weight gain, lack of motivation, and fatigue. (Tr. 435-38)

Plaintiff took time off work but stopped working because, although released to return to work,

her employer could find no work which accommodated her restrictions. (Tr. 433) Plaintiff

reported that she can take care of her needs, take care of her pet, perform light housework, and

manage her finances. (Tr. 75-78, 425-6, 431, 438-440) She alternates between sitting and

standing to remain comfortable and is limited in what she can lift or carry, noting that picking up

a gallon of milk is difficult. (Tr. 431)

The vocational expert John Stokes was asked to assume a person of plaintiff’s education,

capable of performing a limited range of light, simple, repetitive work which allowed her to

alternate between sitting and standing every 30 to 45 minutes, and which did not require above

shoulder lifting. Further, there would be no repetitive use of shoulder, no work at a production

pace, no work with the general public or close contact with coworkers, no work as part of team

where others would be dependent upon this person’s performance. (Tr. 448-451) The vocational

expert testified that such a person could do light and sedentary work as an office helper, welding

machine feeder, document preparer, or inspector. (Tr. 449-450) A significant number of the jobs

were performed during the day and would allow the use of the restroom every two to three hours.

(Tr. 455)

Medical Evidence of Physical Impairments

Medical records show that plaintiff has treated for her arthritis and instability in her knees
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with Dr. Anderson, her orthopedist in Ypsilanti. (Tr. 83) In February 2002, he restricted her to

work which permitted her to alternate between sitting and standing. (Tr. 123-126) Plaintiff’s

medical records note that she had rotator cuff tears for which she underwent bilateral repair

surgery in 2002, in May and September. (Tr. 113-121) She continued to complain of pain and

in September 2003, after MRI testing and physical therapy (Tr. 95, 119) a third surgery was

performed on her right shoulder. She also had a cervical disectomy and fusion. (Tr. 154, 157)

Dr. Anderson stated in November 2003 that she was regaining strength and in December, 2003,

recommended that she return to light duty work. (Tr. 98-99) He reiterated this opinion in March

2004–that plaintiff could work subject to limitations with her knees and shoulders. (Tr. 97) Her

MRI in April 2004 showed the fusion at C6-7 but no other significant degenerative findings. (Tr.

132, 138) Plaintiff reported that she was walking a quarter mile three times a week in May, 2004.

Plaintiff’s treating doctor is Dr. Sheremeta. In September, 2004, plaintiff was seen for

shoulder restrictions. She also had ingrown toenails and had trouble walking. The notes reflect

a diagnosis of bipolar disorder but her stress had decreased and she was sleeping better. Her

wight was 180, her Blood pressure 143/83, and she had some stiffness in her neck with

movement. (Tr. 129)

In February, 2005, plaintiff received an injection for her shoulder pain from Dr. Anderson.

(Tr. 94) In March, 2005, Dr. Anderson added the restriction that she could not lift her arms above

shoulder level. (Tr. 92) She was treated for “garden variety incontinence” in 2005 and 2007. She

had done well after the 2005 treatment but the condition re-occurred. (Tr. 226-228, 238-239)

Subsequently, Dr. Anderson completed forms indicating that it was his opinion that she could not
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do even sedentary work on a sustained basis. (Tr. 285-95, 360-370). 

Work records indicate that plaintiff was authorized to return to work in April, 2004, but

that no work was available which would accommodate her restrictions. (Tr. 130, 132, 139) 

 In March, 2005, Dr. Choi, a state agency physician, reviewed the record evidence and

concluded that plaintiff was able to perform a range of light work, with postural limitations and

manipulative restrictions. (Tr. 206-212)

Records of Mental Health Treatment:

Plaintiff was treated by Dr. Bucknam, a psychiatrist, in connection with her mental

condition related to her physical pain and a history of sexual abuse. (Tr. 177-202) Plaintiff

reported that she had seen Dr. William Bucknam, M.D. in 2005 for major depressive disorder and

difficulty getting along with her supervisor who had called her names. (Tr. 83) Dr. Bucknam

prescribed Effexxor, Wellbutrin, and Klonopin. Id. In June, 2003, plaintiff’s mental condition

is described as improving as her pain becomes better controlled. In May, 2004, plaintiff reported

that she was “pleased” with her psychotropic medication. Dr. Bucknam did not opine that

plaintiff was unable to work but that she should work only during the day. (Tr. 173, 188, 194) 

In December, 2004, plaintiff’s depression was much better, she was better groomed and had lost

weight. (Tr. 183) She still had a general distrust of people but continued to improve. (Tr. 185) Her

last date of treatment with Dr. Bucknam was in December, 2004 at which time she was on

Clonaepam, Wellbutrin, and Effexor. 

Plaintiff underwent a consultive examination by Dr. Baddigam in May, 2005. She

complained of anxiety and depression, as well as helplessness and hopelessness. However, she

had good memory and judgment. The diagnosis was panic disorder with agoraphobia, major
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depression and a GAF of 50 (serious symptoms). Dr. Tien, a psychiatrist, reviewed the record

evidence and concluded that plaintiff had moderate restrictions in areas like carrying out detailed

instructions, maintaining attention and concentration, and independent goal setting. But, Dr. Tien

found that plaintiff could perform a wide range of unskilled tasks in a a regular work

environment. (Tr. 282)

Plaintiff was referred to Primacare shortly before her hearing in 2008. It was noted in

the intake assessment that she was on medical retirement from Ford but felt she was too young

to be retired. (Tr. 354) Plaintiff reported mood swings, anger, depression and anxiety due to life

stressors, and that her boyfriend is not liked by her family. (Tr. 354) She reported fleeting suicidal

ideation. (Tr. 355) Her GAF was assessed at 49, with a 60 within the last year. (Tr. 359) She saw

a psychotherapist four times prior to the hearing. (Tr. 414) The diagnosis was panic disorder with

agoraphobia and major depression in partial remission. (Tr. 418)

ALJ’s Opinion

The ALJ found that plaintiff had severe disorders of the back, knee, depression, anxiety,

bipolar disorder, hypertension, urinary incontinence, residuals of cervical disc fusion, and of post

rotator cuff tears. However, plaintiff’s conditions did not meet the Listings. The ALJ further

found that Dr. Anderson’s later conclusions that she was completely disabled were not entitled

to significant weight because neither the objective medical evidence and Dr. Anderson’s

treatment notes do not contain the limitations reported. (Tr. 24) With respect to the mental health

records, the ALJ determined that the GAF of 49 reported was inconsistent with plaintiff’s

activites, appearance, and responses. She had appropriate affect, was appropriately groomed, had

normal language, thought processes, and memory. (Tr. 24) In addition, the treatment notes of
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Dr. Kodali do not support the doctor’s conclusion. (Tr. 371-375) “Given the inconsistencies

between the testimony of the claimant and medical record, the [ALJ assigned] great weight to the

treatment notes and only limited weight to the testimony of the claimant.” (Tr. 24) Considering

the reports of the consultants, the medical records, and plaintiff’s daily activities, the ALJ

determined that plaintiff could not perform her past relevant work but could perform other work

which existed in significant numbers, that is general office clerk (4900 jobs regionally),

welder/sorter/machine tender (1650 regionally). (Tr. 25) 

Plaintiff argues that the ALJ’s determination that plaintiff could do a limited range of light

work is not supported by substantial evidence. Plaintiff contends that the opinions of Dr.

Anderson and Dr. Kodali were not given appropriate weight, and that the ALJ failed to

appropriately assess plaintiff’s credibility. These factors rendered the hypothetical question

posed to the vocational expert as not accurate. Thus, plaintiff argues, she is entitled to benefits.

Discussion

Medical Evidence Supports the ALJ

Plaintiff argues that the treating physician's testimony was not given the appropriate

weight. It is true that great deference is to be given to medical opinions and diagnoses of treating

physicians. Harris v. Heckler, 756 F.2d 431 (6th Cir. 1985). It is also true that complete

deference is given when said opinions are uncontradicted. However, in both instances, the

opinion of the treating physician must be based on sufficient medical data. Garner v. Heckler, 745

F.2d 383, 391 (6th Cir. 1984); Houston v. Secretary of HHS, 736 F.2d 365, 367 (6th Cir. 1984).

Where the doctor's physical capacity evaluation contains no substantiating medical opinions and

is inconsistent with the doctor's previous opinions, the defendant is not required to credit such
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opinions. Villarreal v. HHS, 818 F.2d 461, 463 (6th Cir. 1987). The determination of disability

is ultimately the prerogative of the Commissioner, not the treating physician. Warner v.

Commissioner of Social Security, 375 F.3d 387 (2004) (citing Harris, 756 F.2d at 435).

Here, Dr. Anderson’s contemporaneous opinions indicated that plaintiff merely needed

a job with restriction which included the ability to sit and stand alternately. His treatment records

did not include any objective testing or other evidence that would support complete disability.

He recommended that she return to light duty work after her surgery. The ALJ carefully

considered the medical record, the notes, and the other evidence and reasonably concluded that

Dr. Anderson’s subsequent opinion that plaintiff could not work was entitled to little weight. 

In addition, Dr. Kodali expressed his opinion on his first contact with plaintiff in

February, 2008. He was not at that time a treating physician and it was not improper for the ALJ

to accord the opinion little weight. Plaintiff had been treating, successfully, with a prior

psychiatrist, was on medications that she found effective, and had ceased regular visits some time

before. While plaintiff then saw Ms. Diebboll four times shortly before her hearing, it does not

appear that Ms. Diebboll concluded that plaintiff was disabled or that even if she did that Ms.

Diebboll is an acceptable medical source. The ALJ’s determination is supported by substantial

evidence.

Vocational Evidence

In addition, the ALJ took into account plaintiff’s psychiatric limitations, as well as her

physical impairments, in limiting her work to the simple repetitive tasks identified by the

vocational expert. At the hearing, the vocational expert took into account plaintiff’s physical

impairments and postural limitations. In addition, he noted that plaintiff would be restricted from
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a variety of stresses such as production work, contact with the public, limited contact with

coworkers, and performance of jobs only in the daytime. Plaintiff argues that the hypothetical

question did not accurately describe her limitations in that she had a moderate impairment of

functioning in concentration, persistence and pace. The ALJ took that into account in limiting

her to unskilled, simple work, limited public contact, and no production requirements and low

stress. The opinion of the reviewing psychologist, is in accordance with this determination. No

evidence is shown to merit either remand or an award of benefits in this regard. The restrictions

imposed by the ALJ and the jobs to which she was limited by the vocational expert adequately

compensated for her impairments. 

Plaintiff’s Complaints of Pain

Plaintiff claims the ALJ did not properly evaluate her credibility and complaints of

disabling pain. The ALJ found they were not credible. Pain caused by an impairment can be

disabling, but each individual has a different tolerance of pain. Houston v. Secretary of HHS, 736

F.2d 365, 367 (6th Cir. 1984). Therefore, a determination of disability based on pain depends

largely on the credibility of the plaintiff. Houston, 736 F.2d at 367; Walters v. Commissioner of

Social Security, 127 F.3d 525, 531 (6th Cir. 1997); Villarreal v. Secretary of HHS, 818 F.2d 461,

463 (6th Cir. 1987). Because determinations of credibility are peculiarly within the province of

the ALJ, those conclusions should not be discarded lightly. Villarreal, 818 F.2d at 463 and 464.

In addition, in Duncan v. Secretary of HHS, 801 F.2d 847 (6th Cir. 1986), this circuit modified

its previous holdings that subjective complaints of pain may support a claim of disability.

Subsequently, the Social Security Act was modified to incorporate the standard. 20 C.F.R. §

404.1529 (1995). A finding of disability cannot be based solely on subjective allegations of pain.
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There must be evidence of an underlying medical condition and (1) there must be objective

medical evidence to confirm the severity of the alleged pain arising from that condition or (2) the

objectively determined medical condition must be of a severity which can reasonably be expected

to give rise to the alleged pain. Jones v. Secretary of HHS, 945 F.2d 1365, 1369 (6th Cir. 1991).

Here the ALJ found that plaintiff’s subjective complaints were not fully supported by the

objective medical evidence. See discussion above. 

Conclusion

Accordingly, it is recommended that the defendant’s motion for summary judgment be

granted, that of the plaintiff denied, and decision denying benefits be affirmed. 

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to act within fourteen (14) days of service of a copy hereof

as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific

objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140

(1985); Howard v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir. 1991); United States v. Walters,

638 F.2d 947, 949-50 (6th Cir. 1981). The filing of objections which raise some issues, but fail

to raise others with specificity, will not preserve all the objections a party might have to this

Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir. 1991);

Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). 
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Within fourteen (14) days of service of any objecting party's timely filed objections, the

opposing party may file a response. The response shall be no more than 20 pages in length

unless, by motion and order, the page limit is extended by the court. The response shall address

each issue contained within the objections specifically and in the same order raised.

S/Virginia M. Morgan 

Virginia M. Morgan

United States Magistrate Judge

Dated: April 22, 2010

 

PROOF OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record via the

Court’s ECF System and/or U. S. Mail on April 22, 2010.

s/Jane Johnson 

Case Manager to

Magistrate Judge Virginia M. Morgan