Verhulst v. Commissioner of Social Security

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JANELLE VERHULST,
Plaintiff,
v. 	Case No. 1:24-cv-1194
Hon. Robert J. Jonker
COMMISSIONER OF SOCIAL
SECURITY,
Defendant,
__________________________________/
REPORT AND RECOMMENDATION
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review
of a final decision of the Commissioner of Social Security (Commissioner) which denied her claim
for disability insurance benefits (DIB).
Plaintiff filed an application for DIB on December 28, 2021, alleging a disability
onset date of November 29, 2020. 	PageID.32. 	Plaintiff identified her disabling condition as
tendonitis. PageID.227. Plaintiff completed the 12th Grade and had past employment as a general
laborer, hand packager, and inspector. 	PageID.41, 228. 	An administrative law judge (ALJ)
reviewed plaintiff’s claim de novo and entered a written decision denying benefits on October 11,
2023. 	PageID.32-42. 	This decision, which was later approved by the Appeals Council, has
become the final decision of the Commissioner and is now before the Court for review.
I. 	LEGAL STANDARD
“The federal courts review the Commissioner’s factual findings for substantial
evidence and give fresh review to its legal interpretations.” 	Taskila v. Commissioner of Social
Security, 819 F.3d 902, 903 (6th Cir. 2016). This Court’s review of the Commissioner’s decision
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is typically focused on determining whether the Commissioner’s findings are supported by
substantial evidence. 	42 U.S.C. § 405(g); McKnight v. Sullivan, 927 F.2d 241 (6th Cir. 1990).
“[T]he threshold for such evidentiary sufficiency is not high.” Biestek v. Berryhill, 587 U.S. 97,
103 (2019). “Substantial evidence, this Court has said, is more than a mere scintilla. It means —
and means only — such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. (internal quotation marks and citations omitted).
A determination of substantiality of the evidence must be based upon the record
taken as a whole. Young v. Secretary of Health and Human Services, 925 F.2d 146 (6th Cir. 1990).
The scope of this review is limited to an examination of the record only. 	This Court does not
review the evidence de novo, make credibility determinations, or weigh the evidence. Brainard v.
Secretary of Health & Human Services, 889 F.2d 679, 681 (6th Cir. 1989). The fact that the record
also contains evidence which would have supported a different conclusion does not undermine the
Commissioner’s decision so long as there is substantial support for that decision in the record.
Willbanks v. Secretary of Health & Human Services, 847 F.2d 301, 303 (6th Cir. 1988). “If the
[Commissioner’s] decision is supported by substantial evidence, it must be affirmed even if the
reviewing court would decide the matter differently, and even if substantial evidence also supports
the opposite conclusion.” Cutlip v. Secretary of Health and Human Services, 25 F.3d 284, 286
(6th Cir. 1994).
A claimant must prove that he suffers from a disability in order to be entitled to
benefits. 	A disability is established by showing that the claimant cannot engage in substantial
gainful activity by reason of any medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than twelve months. See 20 C.F.R. §404.1505; Abbott v. Sullivan, 905 F.2d 918, 923
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(6th Cir. 1990). 	In applying the above standard, the Commissioner has developed a five-step
analysis:
The Social Security Act requires the [Commissioner] to follow a “five-step
sequential process” for claims of disability. First, plaintiff must demonstrate that
she is not currently engaged in “substantial gainful activity” at the time she seeks
disability benefits. 	Second, plaintiff must show that she suffers from a “severe
impairment” in order to warrant a finding of disability. A “severe impairment” is
one which “significantly limits . . . 	physical or mental ability to do basic work
activities.” Third, if plaintiff is not performing substantial gainful activity, has a
severe impairment that is expected to last for at least twelve months, and the
impairment meets a listed impairment, plaintiff is presumed to be disabled
regardless of age, education or work experience. 	Fourth, if the plaintiff's
impairment does not prevent her from doing her past relevant work, plaintiff is not
disabled. For the fifth and final step, even if the plaintiff’s impairment does prevent
her from doing her past relevant work, if other work exists in the national economy
that plaintiff can perform, plaintiff is not disabled.
Heston v. Commissioner of Social Security, 245 F.3d 528, 534 (6th Cir. 2001) (citations omitted).
The claimant bears the burden of proving the existence and severity of limitations
caused by her impairments and the fact that she is precluded from performing her past relevant
work through step four. 	Jones v. Commissioner of Social Security, 336 F.3d 469, 474 (6th Cir.
2003). However, at step five of the inquiry, “the burden shifts to the Commissioner to identify a
significant number of jobs in the economy that accommodate the claimant’s residual functional
capacity (determined at step four) and vocational profile.” Id. If it is determined that a claimant
is or is not disabled at any point in the evaluation process, further review is not necessary. Mullis
v. Bowen, 861 F.2d 991, 993 (6th Cir. 1988).
II. 	ALJ’s DECISION
Plaintiff’s claim failed at the fifth step of the evaluation. At the first step, the ALJ
found that plaintiff has not engaged in substantial gainful activity since the alleged onset date of
November 29, 2020, and met the insured status requirements of the Social Security Act through
December 31, 2025. 	PageID.34. At the second step, the ALJ found that plaintiff had severe
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impairments of: carpal tunnel syndrome, bilateral; tenosynovitis, bilateral; central sensitization to
pain; obesity; depression; and anxiety. PageID.34. At the third step, the ALJ found that plaintiff
did not have an impairment or combination of impairments that met or equaled the requirements
of the Listing of Impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1. PageID.35.
The ALJ decided at the fourth step that:
After careful consideration of the entire record, I find that the claimant has
the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) except she is limited to frequent handling and fingering, bilaterally;
frequent crawling; no climbing ladders, ropes or scaffolds; no work at unprotected
heights, with moving mechanical parts, or with vibration; and she can carry out
very short and simple instructions.
PageID.36. 	The ALJ also found that plaintiff was unable to perform any past relevant work.
PageID.41.
At the fifth step, the ALJ determined that plaintiff could perform a significant
number of unskilled jobs at the light exertional level. PageID.41-42. Based on the testimony of
vocational expert (VE), the ALJ found that plaintiff could perform the requirements of unskilled
light occupations in the national economy such as housekeeper (350,000 jobs), merchandise
marker (225,000 jobs), and assembler (22,000 jobs). 	PageID.42. 	Accordingly, the ALJ
determined that plaintiff was not under a disability, as defined in the Social Security Act, from
November 29, 2020 (the alleged onset date) through October 11, 2023 (the date of the decision).
PageID.42.
III. 	DISCUSSION
Plaintiff contends that the ALJ’s residual functional capacity (RFC) findings are
not supported by substantial evidence, raising three errors:
A. The ALJ’s RFC finding failed to comply with 20 C.F.R. §
404.1520c 	in 	addressing 	the 	opinions 	of 	the 	Plaintiff’s
psychologist and the DDS consultants.
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RFC is a medical assessment of what an individual can do in a work setting in spite
of functional limitations and environmental restrictions imposed by all of her medically
determinable impairments. See 20 C.F.R. § 404.1545. It is defined as “the maximum degree to
which the individual retains the capacity for sustained performance of the physical-mental
requirements of jobs.” 20 C.F.R. Part 404, Subpt. P, App. 2, § 200.00(c). In determining the RFC,
the ALJ considers impairments that are both “severe” and “not severe” (see 20 C.F.R. § 404.1545)
“based on all the relevant medical and other evidence in [the claimant’s] case record” (20 C.F.R.
§ 404.1520(e)).
The applicable regulations provide that the Social Security Administration (SSA)
“will not defer or give any specific evidentiary weight, including controlling weight, to any
medical opinion(s) or prior administrative medical finding(s).” 20 C.F.R. § 404.1520c(a). In these
claims, the SSA “will articulate in our determination or decision how persuasive we find all of the
medical opinions and all of the prior administrative medical findings in [the claimant’s] record.”
20 C.F.R. § 404.1520c(b). 	In addressing medical opinions and prior administrative medical
findings, the ALJ will consider the following factors: (1) supportability; (2) consistency; (3)
relationship with the claimant; (4) specialization; and, (5) other factors. 	See 20 C.F.R. §
404.1520c(c)(1)-(5).
The most important factors which the ALJ considers in evaluating medical opinions
are “supportability” and “consistency”. 	20 C.F.R. § 404.1520c(b)(2). The regulations explain
“supportability” 	as, 	“[t]he 	more 	relevant 	the 	objective 	medical 	evidence 	and 	supporting
explanations presented by a medical source are to support his or her medical opinion(s) or prior
administrative medical finding(s), the more persuasive the medical opinions or prior administrative
medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(1). The regulations explain “consistency”
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as, “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with
the evidence from other medical sources and nonmedical sources in the claim, the more persuasive
the medical opinion(s) or prior administrative medical finding(s) will be.” 	20 C.F.R. §
404.1520c(c)(2). In addition, the regulations recognize that “[b]ecause many claims have
voluminous case records containing many types of evidence from different sources, it is not
administratively feasible for us to articulate in each determination or decision how we considered
all of the factors for all of the medical opinions and prior administrative medical findings in your
case record.” 20 C.F.R. § 404.1520c(b)(1).
1. 	Heather O’Brien, MA, LPC, NCC
Ms. O’Brien’s July 11, 2023, opinion addressed 16 different areas of plaintiff’s
mental abilities and aptitudes (§§ A-P) and essentially concluded that plaintiff could not function
in the workplace setting. See Exh. 5F (PageID.522-523). Plaintiff would have “no useful ability
to function”1 in the following: [G] work in coordination with or proximity to others without being
unduly distracted; [I] complete a normal workday without interruptions from psychological
symptoms; [J] perform at a consistent pace without unreasonable rest periods; and [O] deal with
normal work stress. 	PageID.522-523. 	In addition, plaintiff was “unable to meet competitive
standards”2 in the following: [D] maintain attention for two hour segment; [E] maintain regular
attendance and be punctual; [H] make simple work-related decisions; [L] accept instructions and
respond appropriately to criticism from supervisors; and [N] respond appropriately to changes in
1 The form defined “no useful ability to function” as “an extreme limitation, means your patient cannot perform this
activity on a regular, reliable and sustained schedule in a regular work setting.” PageID.522.
2 The form defined “unable to meet competitive standards” as “your patient has noticeable difficulty (e.g., distracted
from job activity) from 21 to 40 percent of the workday or work week.” PageID.522.
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a routine work setting. 	PageID.522-523. 	Furthermore, plaintiff was seriously limited”3 in the
following: [A] remember work-like procedures; [B] understand and remember very short and
simple instructions; [F] sustain an ordinary routine without special supervision; [M] get along with
co-workers or peers without unduly distracting them or exhibiting behavioral extremes; and, [P]
be aware of normal hazards and take appropriate precautions. PageID.522-523.
In addition, plaintiff had: extreme limitations in her ability to interact with others
and in maintaining concentration, persistence or pace; and, marked limitations in her ability to
understand, remember or apply information, and to adapt or manage herself. PageID.523. Finally,
Ms. O’Brien provided a narrative which mentioned that plaintiff: has participated in weekly
sessions with her since July 20, 2022; continues to complain of depression and anxiety; requests
medication reviews; often presents as anxious or tearful during sessions; and, has a hard time
completing and managing daily tasks. PageID.525.
The ALJ acknowledged that “the evidence shows a longitudinal history of
complaints related to anxiety and depression.” 	PageID.38. 	However, the ALJ also found that
plaintiff’s “treatment for the most part was conservative without evidence of crisis intervention,
repetitive emergency room visits or inpatient treatment.” PageID.38.
The ALJ considered plaintiff’s medical record and made the following observations
and findings. During an office visit on February 9, 2021, plaintiff reported anxiety and depression.
PageID.39. Plaintiff smoked marijuana once or twice a day “due to stress associated with her
family and financial difficulties”. Id. Plaintiff complained of nausea and her doctor advised her
“to stop the use of marijuana as it may cause more nausea and vomiting.” Id. Plaintiff occasionally
used alcohol. Id.
3 The form defined “seriously limited” as “your patient has noticeable difficulty (e.g., distracted from job activity)
from 11 to 20 percent of the workday or work week.” PageID.522.
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“Although continuing to report she worried about everything, during an office visit
on August 24, 2021, the claimant was noted to have a normal mood and affect, and she was not
suicidal.” 	Id. 	On February 24, 2022, plaintiff reported anxiety, worry and irritability, but her
thought process was normal and her affect appropriate. 	Id. 	Her symptoms persisted despite a
change in medication. Id. 	On August 26, 2022, plaintiff “reported that counseling was making a
big difference.” Id.
Plaintiff met with Ms. O’Brien for nearly a year. See Exh. 17F (PageID.852-897).
The ALJ addressed Ms. O’Brien’s counseling as follows:
During an individual psychotherapy session on October 17, 2022, Heather
O’Brien, MA, LPC, described the claimant as depressed; however, her mood was
normal, psychomotor was appropriate, and social was also appropriate. On October
24, 2022, and December 12, 2022, she remained depressed but appropriate and
normal in most areas (17F/61, 63, 47). Although noted to be anxious and depressed
on February 6, 2023, her affect and social remained appropriate and normal
sensorium with no cognitive problems (8F/39). Despite testimony of difficulties
around people, Ms. O’Brien noted the claimant reported going downtown with her
daughter and visiting a music store (17F/5), attending a family picnic with a lot of
people in the area, and going to the mall without feeling overly anxious in a busy
place (17F/7, 31).
PageID.39.
When plaintiff presented for a recheck of depressive disorders on June 29, 2023,
her primary medical care provider found that,
She did not have suicidal thoughts but was noted to have symptoms exacerbated by
family stress. She felt her medication with counseling was “ok” although she
wished it was better (4F/2). Her affect was appropriate and her thought content was
normal as well as her cognitive functioning (4F/3).
Id. 	The 	provider 	assessed 	plaintiff 	with, 	“Depression, 	major, 	single 	episode, 	moderate.”
PageID.485.
Based on this record, the ALJ addressed Ms. O’Brien’s opinion as follows:
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Heather O’Brien, MA, LPC, completed a mental treating source statement
on July 11, 2023, indicating the claimant had marked and extreme functional
limitations. She opined that the claimant had no useful function in various areas of
work and would be absent from work more than four days per month. She noted
that the claimant continued to report overall wrist/arm pain making it difficult to do
daily tasks. She complained of depression and anxiety and had feelings of
worthlessness and low self-esteem along with significant social anxiety which
affected her ability to go to public places. She has difficulty understanding what is
presented to her and is easily overwhelmed by unexpected events. Ms. O’Brian [sic]
opined that the claimant would have significant challenges and would not be able
to succeed in a work setting, due to her mental health issues, social anxiety, and
chronic pain (5F).
I do not find the opinion of Ms. O’Brian [sic] persuasive based on the
limitations she assessed are not supported by the claimant’s longitudinal treatment
history that is overall conservative while the limitations assessed by Ms. O’Brian
[sic] are extreme at times and inconsistent with the evidence, most notably on July
3, 2023, where she described the claimant’s mood as normal, affect, psychomotor
and socially appropriate (17F/1). Documentation by Ms. O’Brian [sic] notes
improvement in her symptoms; thus, her opinion does not support the degree of
limitation she assessed.
PageID.40.
There is no question that plaintiff has mental limitations. However, the longitudinal
record does not support the extreme limitations as set forth in Ms. O’Brien’s opinion. 	As
discussed, plaintiff noticed improvements with counseling and the medical provider found that
plaintiff had normal thought content and cognitive functioning. 	The ALJ’s evaluation of Ms.
O’Brien’s opinion is supported by substantial evidence. Accordingly, this claim should be denied.
2. 	The state agency opinions
Plaintiff contends that the ALJ’s stated reasons for discounting the medical
opinions are not supported by substantial evidence and that the ALJ failed to explain his deviations
from “persuasive” opinions. See Plaintiff’s Brief (ECF No. 9, PageID.1367). The ALJ addressed
the state agency opinions as follows:
The State agency psychological consultants assessed a psychiatric review
technique 	for 	mild 	limitation 	in 	understanding, 	remembering, 	or 	applying
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information, interacting with others, and adapting or managing oneself. However,
she had a moderate limitation concentrating, persisting, or maintaining pace. Robert
Barthaell, Psy.D., [sic] opined that the claimant would be able to focus to complete
tasks requiring two to three steps (2A).
On reconsideration, State agency psychological consultant Dyan Hampton-
Aytch, Ph.D., assessed that the claimant could complete tasks requiring two to three
steps, and have brief and superficial interaction with others in a low stress
environment with infrequent simple routine changes (3A).
I find Dr. Barthell’s and Dr. Hampton-Aytch’s opinion persuasive based on
consistency of the limitations with the evidence showing problems with focus and
concentration. While Dr. Hampton-Aytch assessed brief and superficial interaction
in a low stress environment, the evidence overall does not support more than mild
limitation interacting. Thus, I am not persuaded this limitation applies.
PageID.39-40.
The Court agrees with the general proposition that an ALJ can find an opinion
persuasive without adopting each part of the opinion. 	See, e.g, Wyatt v. Kijakazi, No. 23-1559,
2023 WL 6629761 at *1 (8th Cir. Oct. 12, 2023) (“The ALJ was not required to adopt the exact
limitations set forth in the opinions [he] found persuasive.”). In this regard, some courts take the
position that the ALJ should explain a deviation from that otherwise persuasive opinion. See, e.g.,
Eric B. v. Kijakazi, No. CV 22-175 SCY, 2023 WL 5041192 at *5 (D.N.M. Aug. 8, 2023) (“[i]n
explicitly finding [the doctor’s] opinion persuasive, but then ignoring certain limitations in the
opinion without accounting for them in the RFC, the ALJ failed to accurately explain the basis of
his opinion”).
Here, the Court does not require an explanation for the ALJ’s deviation from the
persuasive opinion. 	Dr. Hampton-Aytch’s notes reflect that plaintiff suffered from only mild
limitations, stating in part:
The clmt displays mild limitations in social d/t mood lability and anxiety. She
would be regarded as mildly limited in Adapt related to her ability to readily adapt
to changes in work routines and work contexts. These limitations suggest the clmt
retains the ability to meet the basic mental demands of unskilled work.
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PageID.105. 	This finding of mild limitations is consistent with the ALJ’s determination and
appears inconsistent with the doctor’s statement that plaintiff can have only brief and superficial
interaction. Accordingly, this claim of error should be denied.
B. The ALJ failed to follow SSR 96-3p and failed to include the
effects of all Plaintiff’s impairments when determining RFC.
C. The ALJ did not evaluate Plaintiff’s symptoms as required
by SSR 16-3p and 20 C.F.R. 404.1529(c).
Plaintiff addressed these errors together, contending that “[s]ubstantial evidence
does not support the lack of any limitations related to Ms. Verhulst’s ability to pay attention,
concentrate or persist, or absenteeism, and the findings related to those issues are not supported by
the evidence.” Plaintiff’s Brief at PageID.1367. The gist of plaintiff’s argument is that “[t]he ALJ
did not address Ms. Verhulst’s pain on her ability to sustain mental and physical work activity.”
Plaintiff’s Brief (ECF No. 9. PageID.1371).
While it is well-settled that pain may be so severe that it constitutes a disability, a
disability cannot be established by subjective complaints of pain alone. “An individual’s statement
as to pain or other symptoms shall not alone be conclusive evidence of disability.” 	Cohen v.
Secretary of Department of Health and Human Services, 964 F.2d 524, 529 (6th Cir. 1992),
quoting 42 U.S.C. § 423(d)(5)(A) (emphasis added). 	Rather, objective medical evidence that
confirms the existence of pain is required. Shavers v. Secretary of Health and Human Services,
839 F.2d 232, 234-35 (6th Cir.1987).
“Where the symptoms and not the underlying condition form the basis of the
disability claim, a two-part analysis is used in evaluating complaints of disabling pain.” Rogers v.
Commissioner of Social Security, 486 F.3d 234, 247 (6th Cir. 2007).
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First, the ALJ will ask whether the there is an underlying medically determinable
physical impairment that could reasonably be expected to produce the claimant’s
symptoms. Second, if the ALJ finds that such an impairment exists, then he must
evaluate the intensity, persistence, and limiting effects of the symptoms on the
individual’s ability to do basic work activities. 	Relevant factors for the ALJ to
consider in his evaluation of symptoms include the claimant’s daily activities; the
location, duration, frequency, and intensity of symptoms; factors that precipitate
and aggravate symptoms; the type, dosage, effectiveness, and side effects of any
medication taken to alleviate the symptoms; other treatment undertaken to relieve
symptoms; other measures taken to relieve symptoms, such as lying on one’s back;
and any other factors bearing on the limitations of the claimant to perform basic
functions.
Id. (internal citations omitted). See 20 C.F.R. § 404.1529 (“How we evaluate symptoms including
pain”).
Plaintiff met the first part of the analysis because she has underlying medically
determinable physical impairments that could reasonably be expected to produce her symptoms,
i.e., severe impairments of: carpal tunnel syndrome, bilateral; and tenosynovitis, bilateral.
PageID.34. The ALJ addressed the second part of the analysis by performing an extensive review
of plaintiff’s medical record and medical opinions. PageID.37-41. The ALJ addressed plaintiff’s
treatment for bilateral wrist pain from October 25, 2020, through October 12, 2022. PageID.37-
38. On June 8, 2022, plaintiff was symptomatic for bilateral forearm and wrist pain. PageID.38.
However, Christine Bowman, M.D., noted that plaintiff’s examination remained “quite benign.”
Id. 	Neil Droppers, D.O. found plaintiff’s upper extremity strength and electrodiagnostic study
normal on July 1, 2022, noting that the findings did not explain her symptomatology. 	Id. 	On
October 12, 2022, Dr. Droppers noted that plaintiff was taking naproxen for pain management and
referred her to Mary Free Bed’s chronic pain program. Id. However, the ALJ noted that despite
this referral and treatment plan “the claimant missed several visits in the pain program” and only
attended three of eight pain psychology group sessions. PageID.38.
After reviewing the record, the ALJ concluded:
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Based on the foregoing, I find the claimant has the above residual functional
capacity assessment, which is supported by evidence of ongoing complaints of pain
and numbness in her hands due to central sensitization to pain and tenosynovitis,
while retaining strength to perform a range of light exertion. Although struggling
at times with family stress, the claimant remained functional without significant
treatment for depression and anxiety; thus, limiting her to short and simple
instructions, accommodates her limitations with focus and anxiety.
PageID.41.
The ALJ reviewed the medical record and adequately addressed the effect of
plaintiff’s pain on her ability to sustain mental and physical work activity. Accordingly, this claim
should be denied.
IV. 	RECOMMENDATION
For all of these reasons, I respectfully recommend that the Commissioner’s decision
be AFFIRMED.
Dated: February 19, 2026 	/s/ Ray Kent
Ray Kent
United States Magistrate Judge
ANY OBJECTIONS to this Report and Recommendation must be served and filed with the Clerk
of the Court within fourteen (14) days after service of the report. All objections and responses to
objections are governed by W.D. Mich. LCivR 72.3(b). Failure to serve and file written objections
within the specified time waives the right to appeal the District Court’s order. Thomas v. Arn, 474
U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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