Moran v. Commissioner of Social Security (40 F. Supp. 3d 896, 2014)

United States District Court for the Eastern District of Michigan 2014-08-22

The Public Health and Welfare

Citations

Full opinion text

ORDER ACCEPTING REPORT AND RECOMMENDATION [# 16] and REMANDING ACTION

DENISE PAGE HOOD, District Judge.

This matter is before the Court on Magistrate Judge Patricia T. Morris’s Report and Recommendation. [Docket No. 16, filed July 30, 2014] In this Report and Recommendation, Magistrate Morris recommended that this Court GRANT Plaintiffs Motion for Summary Judgment [Docket No. 10, filed January 15, 2014], DENY the Commissioner’s Motion for Summary Judgment [Docket No. 13, March 12, 2014], REVERSE the Commissioner’s Decision, and REMAND this matter pursuant to sentence four of 42 U.S.C. § 405(g). Neither party has filed an objection within the time provided under 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d).

Judicial review of the Commissioner’s decision is limited in scope to determining whether the Commissioner employed the proper legal criteria in reaching his conclusion. Gamer v. Heckler, 745 F.2d 383 (6th Cir.1984). The credibility findings of an administrative law judge (“ALJ”) must not be discarded lightly and should be accorded great deference. Hardaway v. Secretary of Health and Human Services, 823 F.2d 922, 928 (6th Cir.1987). A district court’s review of an ALJ’s decision is not a de novo review. The district court may not resolve conflicts in the evidence nor decide questions of credibility. Garner, 745 F.2d at 387. The decision of the Commissioner must be upheld if supported by substantial evidence, even if the record might support a contrary decision or if the district court arrives at a different conclusion. Smith v. Secretary of HHS, 893 F.2d 106, 108 (6th Cir.1989); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir.1986).

The Court has had an opportunity to review this matter and finds that the Magistrate Judge reached the correct conclusion for the proper reasons. The Magistrate Judge reviewed the ALJ’s findings and the record thoroughly in reaching her conclusion that the matter should be remanded because the ALJ’s determination was “not supported by substantial evidence and should therefore be remanded to gather expert guidance concerning whether Plaintiffs impairments equaled a Listing impairment.” [Docket No. 16, Pg ID 500]

As recommended by the Magistrate Judge, this matter is remanded to the Commissioner for the ALJ to develop the record, as necessary, and gather expert guidance concerning whether the Plaintiffs impairments equaled a Listing impairment, as needed. The Supreme Court recognizes only two kinds of remands involving social security cases-those pursuant to sentence four and those pursuant, to sentence six of 42 U.S.C. § 405(g). Melkonyan v. Sullivan, 501 U.S. 89, 99, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991); Sullivan v. Finkelstein, 496 U.S. 617, 626, 110 S.Ct. 2658, 110 L.Ed.2d 563 (1990). The Supreme Court concluded that Congress’s explicit delineation in § 405(g) regarding circumstances under which remands are authorized clearly showed that Congress intended to limit the district court’s authority to enter remand orders in these two types of cases. Melkonyan, 501 U.S. at 100, 111 S.Ct. 2157. Sentence four allows a district court to remand in conjunction with a judgment affirming, modifying or reversing the Commissioner’s decision. Id. at 99-100, 111 S.Ct. 2157. Sentence four remands are appropriate in situations where the decision maker incorrectly applied the regulations in ■ denying disability benefits.- See Faucher v. Secretary of Health & Human Servs., 17 F.3d 171, 174 (6th Cir.1994). In such situations the district court must reverse the Commissioner’s decision and remand the matter for further proceedings in order to correct the error. Id. A judgment must be entered immediately with a sentence four remand and the district court does not retain jurisdiction during the administrative proceedings on remand. Melkonyan, 501 U.S. at 101-02, 111 S.Ct. 2157. Failure to remand under sentence four and retention of jurisdiction is error. Shalala v. Schaefer, 509 U.S. 292, 299, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993). A sentence four remand is a judgment for the plaintiff. Id. at 302, 113 S.Ct. 2625 (citations omitted)

Accordingly,

IT IS ORDERED that the Report and Recommendation of Magistrate Judge Patricia Morris [Docket No. 16, filed July 30, 2014] is ACCEPTED and ADOPTED.

IT IS FURTHER ORDERED that Plaintiffs Motion for Summary Judgment [Docket No. 10, filed January 15, 2014] is GRANTED.

IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment [Docket No. 13, March 12, 2014] is DENIED.

IT IS FURTHER ORDERED that the Commissioner’s decision is REVERSED and this action is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g).

IT IS SO ORDERED.

MAGISTRATE JUDGE’S REPORT

AND RECOMMENDATION

PATRICIA T. MORRIS, United States Magistrate Judge.

I. RECOMMENDATION

In light of the entire record in this case, I suggest that substantial evidence does not support the Commissioner’s determination that Plaintiff is not disabled. Accordingly, IT IS RECOMMENDED that Plaintiffs Motion for Summary Judgment be GRANTED, that Defendant’s Motion for Summary Judgment be DENIED, and that the case be remanded to the Commissioner under sentence four of 42 U.S.C. § 405(g).

II. REPORT

A. Introduction and Procedural History

Pursuant to 28 U.S.C. § 636(b)(1)(B), E.D. Mich. LR 72.1(b)(3), and by Notice of Reference, this case was referred to this magistrate judge for. the purpose of reviewing the Commissioner’s decision denying Plaintiffs claims for Disability Insurance Benefits (“DIB”). This matter is currently before the Court on cross-motions for summary judgment. (Docs. 10, 13.)

Kimberly Moran (“Plaintiff’) was thirty-seven years old at the time of the most recent administrative hearing. (Transcript, Doc. 6 at 56.) Plaintiff worked at Nationwide Income Tax in 1994, (Tr. at 59, 179), and as a meat wrapper and stock clerk .at Meijer from 1997 until 2004, when she suffered the back injury leading to this disability claim, (Tr. at 60-62, 183, 223). She testified that she returned to Meijer for roughly eight months in 2007 as a gas station monitor. (Tr. at 60-64, 232.) On February 1, 2011, Plaintiff filed the present claim for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act 42 U.S.C. § 401 el seq. (Tr. at 169.) She alleged that she became unable to work on August 8, 2007. (Tr. at 169.)

The claim was denied at the initial administrative stage. (Tr. at 131.) In denying Plaintiffs claims, the Commissioner considered discogenic and degenerative back disorders. (Id.) On November 28, 2011, Plaintiff appeared before Administrative Law Judge (“ALJ”) Patricia S. McKay, who considered the application for benefits de novo. (Tr. at 41-122.) In a decision dated March 17, 2012, the ALJ found that Plaintiff was not disabled. (Tr. at 19, 34.) Plaintiff requested a review of this decision on April 11, 2012. (Tr. at 15.)

The ALJ’s decision became the Commissioner’s final decision, see Wilson v. Comm’r of Soe. Sec., 378 F.3d 541, 543-44 (6th Cir.2004), on June 18, 2013, when the Appeals Council denied Plaintiffs request for review. (Tr. at 1-3.) On August 13, 2013 Plaintiff filed the instant suit seeking judicial review of the Commissioner’s unfavorable decision. (Doc. 1.)

B. Standard of Review

The Social Security system has a two-tiered structure in which the administrative agency handles claims and the judiciary merely reviews the factual determinations to ensure they are supported by substantial evidence. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 889, 390, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). The administrative process provides multiple opportunities for reviewing the state agency’s initial determination. The Plaintiff can first appeal the decision to the Social Security Agency, then to an ALJ, and finally to the Appeals Council. Bowen v. Yuckert, 482 U.S. 137, 142, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). Once this administrative process is complete, an unsuccessful claimant may file an action in federal district court. Sullivan v. Zebley, 493 U.S. 521, 524-28, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990), superseded by statute on other grounds, Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub.L. No. 104-193, 110 Stat. 2105; Mullen v. Bowen, 800 F.2d 535, 537 (6th Cir.1986) (en banc).

This Court has original jurisdiction under 42 U.S.C. § 405(g) to review the Commissioner’s final administrative decision. The statute limits the scope of judicial review, requiring the Court to “ ‘affirm the Commissioner’s conclusions absent a determination that the Commissioner has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence in the record.’ ” Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir.2005) (quoting Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir.2004)). See also Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir.1997). The court’s review of the decision for substantial evidence does not permit it to “ ‘try the case de novo, resolve conflicts in evidence, or decide questions of credibility.’ ” Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir.2012) (quoting Bass v. McMahon, 499 F.3d 506, 509 (6th Cir.2007)). See also Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.1984).

The Commissioner’s findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Therefore, a court may npt reverse the Commissioner’s decision merely because it disagrees or because “ ‘there exists in the record substantial evidence to support a different conclusion.’ ” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir.2006) (quoting Buxton v. Halter, 246 F.3d 762, 772 (6th Cir.2001)). See also Mullen, 800 F.2d at 545. The court can only review the record before the ALJ. Bass, 499 F.3d at 512-13; Foster v. Halter, 279 F.3d 348, 357 (6th Cir.2001). Substantial evidence is “more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.1994). See also Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir.2003). “[T]he ... standard is met if a ‘reasonable mind might accept the relevant evidence as adequate to support a conclusion.’ ” Longworth, 402 F.3d at 595 (quoting Warner, 375 F.3d at 390). “The substantial evidence standard presupposes that there is a “ ‘zone of choice’ ” within which the Commissioner may proceed without interference from the courts.” Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir.1994) (citations omitted) (quoting Mullen, 800 F.2d at 545).

A court’s review of the Commissioner’s factual findings for substantial evidence must consider the evidence in the record as a whole, including that evidence which might subtract from its weight. Wyatt v. Sec’y of Health & Human Servs., 974 F.2d 680, 683 (6th Cir.1992). “Both the court of appeals and the district court may look to any evidence in the record, regardless of whether it has been cited by the Appeals Council.” Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir.2001). There is no requirement, however, that either the ALJ or the reviewing court discuss every piece of evidence in the administrative record. Van Der Maas v. Comm’r of Soc. Sec., 198 Fed.Appx. 521, 526 (6th Cir.2006); Komecky v. Comm’r of Soc. Sec., 167 Fed.Appx. 496, 508 (6th Cir. 2006) (“ ‘[A]n ALJ can consider all the evidence without directly addressing in his written decision every piece of evidence submitted by a party.’ ” (quoting Loral Defense Systems-Akron v. N.L.R.B., 200 F.3d 436, 453 (6th Cir.1999))).

C. Governing Law

“ ‘The burden lies with the claimant to prove that she is disabled.’ ” Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 275 (6th Cir.2010) (quoting Foster, 279 F.3d at 353). Accord Boyes v. Sec’y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir.1994). There are several benefits programs under the Act, including the DIB program of Title II, 42 U.S.C. § 401-34, and the Supplemental Security Income (“SSI”) program of Title XVI, 42 U.S.C. § 1381-1385. Title II benefits are available to qualifying wage earners who become disabled prior to the expiration of their insured status; Title XVI benefits are available to poverty stricken adults and children who become disabled. F. Bloch, Federal Disability Law and Practice § 1.1 (1984). While the two programs have different eligibility requirements, “DIB and SSI are available only for those who have a ‘disability.’ ” Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir.2007). “Disability” means inability

to engage in any 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.

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A)(DIB); 20 C.F.R. § 416.905(a)(SSI).

The Commissioner’s regulations provide that disability is to be determined through the application of a five-step sequential analysis:

Step One: If the claimant is currently engaged in substantial gainful activity, benefits are denied without further analysis.

Step Two: If the claimant does not have a severe impairment or combination of impairments that “significantly limits ... physical or mental ability to do basic work activities,” benefits are denied without further analysis.

Step Three: If the claimant is not performing substantial gainful activity, has a severe impairment that is expected to last for at least twelve months, and the severe impairment meets or equals one of the impairments listed in the regulations, the claimant is conclusively presumed to be disabled regardless of age, education or work experience.

Step Four: If the claimant is able to perform his or her past relevant work, benefits are denied without further analysis.

Step Five: Even if the claimant is unable to perform his or her past relevant work, if other work exists in the national economy that plaintiff can perform, in view of his or her age, education, and work experience, benefits are denied.

20 C.F.R. §§ 404.1520, 416.920. See also Heston, 245 F.3d at 534. “If the Commissioner makes a dispositive finding at any point in the five-step process, the review terminates.” Colvin, 475 F.3d at 730.

“Through step four, 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.” Jones, 336 F.3d at 474. See also Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 540 (6th Cir.2007). The burden transfers to the Commissioner if the analysis reaches the fifth step without a finding that the claimant is not disabled. Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir.2006). At the fifth step, the Commissioner is required to show that “other jobs in significant numbers exist in the national economy that [the claimant] could perform given her RFC [residual functional capacity] and considering relevant vocational factors.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.2007) (citing 20 C.F.R. §§ 416.920(a)(4)(v), (g)).

D. ALJ Findings

The ALJ applied the Commissioner’s five-step disability analysis to Plaintiffs claim and found at step one that Plaintiff met the insured status requirements through December 31, 2010 and had not engaged in substantial gainful activity since August 8, 2007, the alleged onset date. (Tr. at 21.) At step two, the ALJ concluded that Plaintiff had the following severe impairment: “lumbar spine pseu-doarthrosis status post L4 to SI revision laminectomy and posterior spinal fusion with bone graft and instrumentation at L4, L5, and SI.” (Id.) At step three, the ALJ found that Plaintiffs impairment did not meet or equal one of the listings in the regulations. (Tr. at 23-25.) At step four, the ALJ found that Plaintiff was able to perform past relevant work as a surveillance systems monitor, the generic title of her gas station monitor position. (Tr. at 32-35.) The ALJ also found that Plaintiff was thirty-six years old on the last date of her insurance, which put her in the “younger age” category. (Tr. at 32.) See 20 C.F.R. §§ 404.1563, 416.963. (Id.) At step five, the ALJ found that Plaintiff could perform a reduced range of light work in jobs existing in significant numbers in the regional economy. (Tr. 25-31.)

E. Administrative Record

The earliest report in the Record is a single sheet from March 3, 2005 listing dates from outpatient rehabilitation appointments from the previous five months. (Tr. at 267.) The next report, from Dr. Lawrence T. Kurz, provides substantially more information. (Tr. at 314-16.) Dr. Friedman, an orthopedic surgeon, wrote to Meijer of the results from a consultation with Plaintiff on April 5, 2005 regarding back pain. (Tr. at 314.) Plaintiff complained that her lower back hurt after an injury at work on August 1, 2004. (Id.) The “dull ache” spread to both legs, especially her left, and was interrupted by intermittent tingling and numbness. (Id.) She rated the pain anywhere from four to eight out of ten on a visual analog (“VA”) scale and came to Dr. Kurz, she claimed, after physical therapy, acupuncture, epidural steroid injections, and Vieodin had failed. (Id.)

Dr. Kurz found mostly normal results: her motor strength and reflexes were normal and there were no abnormalities or atrophy in her extremities. (Tr. at 314-15.) Her spine likewise seemed normal “except for some diffuse low back [and sacroiliac region] tenderness.... ” (Tr. at 314.) She also had normal gait, coordination, and mood. (Tr. at 315.) X-rays of her back and pelvis taken during the appointment showed “some sacroiliac joint narrowing as well as narrowing at the L4-5 and L5-S1 disc spaces.” (Id.) Dr. Kurz reviewed an MRI from the previous month, noting “decreased signal in the L4-5 and L5-S1 disc spaces, as well as a small central disc protrusion L5-S1 greater than L4-5.” (Id.) He diagnosed bilateral lumbar radiculopathy, lumbar disc protrusion, internal lumbar disc disruption, and possible sacroilitis. (Id.) The recommended treatment plan included two medications, Me-drol Dosepak and Neurontin; cortisone injections from Dr. Joel R. Schechet; and consultations Dr. Jeffrey Last, a pain psychologist. (Tr. at 315-316.) They would consider spinal fusion in the future if necessary. (Tr. at 316.)

Plaintiff followed up on the referral to Dr. Schecht on April 29. (Tr. at 311-13.) She described the pain as “burning, sharp, aching, throbbing, and shooting,” and rating it anywhere from level six through nine on the VA scale. (Tr. at 311.) She tried Bextra, Celebrex, Flexeril, Skelaxin, Zana-flex, and Voltaren in the past, and now took Vicodin and extra strength Motrin. (Id.) Prior diagnostic tests showed “sacroiliac joint changes bilaterally” and “spon-dylosis at L5-S1 and L4-5.” (Tr. at 311— 12.) Other tests uncovered no abnormalities aside from lower back tenderness. (Tr. at 312.) She walked “well on [her] heels and toes” and she generally appeared “Wealthy.” (Id.) Dr. Schechet’s diagnoses mirrored Dr. Kurz’s, except he assessed definite sacroilitis. (Id.) He provided a sacroiliac steroid injection, prescribed Neurontin, and requested Plaintiff return in a few weeks. (Id.)

She next saw Dr. Schechet on June 10, 2005 to receive more injections, again at Dr. Kurz’s direction. (Tr. at 309.) Plaintiff did not find them helpful the first time, however, and Dr. Schechet ceased this treatment method. (Id.) Neurontin, like her other medication, proved futile as well; only Vicodin gave her relief and she requested a prescription. (Id.) Dr. Schechet declined, informing her that his approach avoided opiates. (Tr. at 309-10.) Instead, he discussed discogram studies, but Plaintiff seemed hesitant after she learned that it involved injecting dye into the discs without anesthesia. (Tr. at 310.) Dr. Schechet added “[pjossible lumbar facet inflammation” to the diagnoses and they accordingly decided to seek workers’ compensation approval for lumbar facet joint injections. (Id.) The examination again revealed lower back tenderness and she also had pain in both legs during Gaenslen’s maneuvers. (Tr. at 309.) The next session, on July 8, mirrored the prior one; Plaintiff still ached and was reluctant to undergo the discogram procedure. (Tr. at 308.) Dr. Schechet administered lumbar facet injections and was disappointed at the unusual lack of immediate pain relief. (Id.)

On November 1, 2005, Dr. Kurz reported that Plaintiff was “getting progressively worse.” (Tr. at 307.) The Medrol Dose-pak and Neurontin failed to help, but Lor-tab occasionally gave relief. (Id.) Dr. Kurz stated that her lumbar motions were “quite limited,” and the “[l]umbar disco-gram was positive at L4-5 and L5-S1.” (Id.) However, she walked normally, had normal neurologic results in her legs, normal reflexes, negative straight leg raises, normal range of motion in her hips, and no other abnormalities. (Id.) Plaintiff decided she needed surgery—Dr. Kurz planned a bilateral posterior instrumentation and fusion at L4-5 and L5-S1, a decompressive laminectomy, and “maybe discectomy at both levels.” (Id.) He also admonished Plaintiff to quit smoking. (Id.) An MRI a few days later revealed “[s]mall” protrusions without stenosis at L4-5 and L5-S1. (Tr. at 276.)

Dr. Kurz operated on Plaintiff in mid-January, 2006. (Tr. at 306.) He visited her one week later, learning that her lower back pain persisted, but otherwise she was “doing reasonably well”: her gait, reflexes, and range of hip motion were normal (Id.) He prescribed Oxycodone for the post-surgery pain. (Id.) One month later, on February 23, he concluded she was “doing quite well,” only taking Oxycodone when necessary. (Tr. at 305.) She reported no numbness, tingling, or radicular complaints, her examination results remained normal, and x-rays showed proper fusion at L4-S1 “with the instrumentation in place.” (Id.) Her steady progress continued into May, and Dr. Kurz again noted “improving” back pain and normal test results. (Tr. at 304.) He felt she could now handle physical therapy. (Id.)

Plaintiff began therapy with Alvin Miller on May 5, 2010. (Tr. at 291.) She related her work injury and described the pain— at a four to seven on the VA scale—in her “left lower extremity, specifically [the] glu-teal region, lateral calf, occasionally in her foot....” (Id.) Her knee “gave out” repeatedly, she claimed. (Id.) Mr. Miller classified her gait as guarded and noted her “forward flexed posture, posterior pelvic tilt, protracted shoulders and forward head.” (Id.) Her strength and reflexes were normal. (Id.) He also wrote that she was “unable to carry out daily functional activities ... pain free, without restriction.” (Id.) The six-week treatment program he laid out included an array of methods: massage, electrical stimulation, stretching, balance, coordination, and agility. (Tr. at 292.) If followed, he opined that Plaintiff would have a “[g]ood” potential for rehabilitation. (Id.)

The Record contains only three other reports from Mr. Miller in 2006. (Tr. at 284-90.) On June 13 she claimed to have achieved no progress in decreasing the pain, typically rating it at seven on the VA scale. (Tr. at 289.) Standing longer than five minutes, “especially during cooking,” proved impossible and she moved with guarded gait. (Id.) Her gluteal muscles hurt only on palpation; but her leg pain seemed inexorable, intensifying but never abating. (Id.) Mr. Miller concluded, “[t]he patient had full range of motion, as well as strength, and [the] only complaint is pain ... stinging to [her] low back. No clinical findings were found to indicate any type of pain patient is feeling ....” (Id.)

On July 10, 2006, Plaintiff informed Mr. Miller that the “pain she experiences is the same as the initial evaluation .... ” (Tr. at 285.) Nonetheless, she stated that “during ambulation ... she no longer has pain that causes shooting up her leg, and she reports that she no longer feels like she is limping.” (Id.) Strength and motion exercises measured the same results as the last session. (Id.) Mr. Miller noted,

Patient appears to continue to increase in strength and range of motion, however, subjectively, patient reports that pain is still pretty significant; complaining that pain is still mostly intense throughout the hips and lower extremity. [Her] [l]owback seems to be resolving after the surgery, and with stretches and strengthening exercises.

(Id.) The final notes from treatments in 2006, written on July 28, contain a short summary of her treatment: “Patient states that she is active with child care responsibilities. [She] [s]tates that prolonged weightbearing activity remains problematic. Patient does carry out exercises in therapy, however, [she] does complain of continued discomfort with exercise and stretching despite manual muscle testing of 5/5 in all planes.” (Tr. at 287.)

By her next visit with Dr. Kurz, on July 25, her condition had begun to retrogress. (Tr. at 303.) In particular, pain reemerged in her legs, more than in her lower back, and increased when she stood or walked. (Id.) With one week of sessions remaining, Plaintiff felt that physical therapy had reached the limits of its usefulness. (Id.) Additionally, she had ceased taking pain medication. (Id.) Dr. Kurz did not find any changes in his examination or in recent x-rays, and said somewhat cryptically, “I do not really see anything particular here.” (Id.) He placed her on Lyriea and contemplated increasing the dose or ordering an EMG if the pain did not improve. (Id.)

Plaintiff returned to her job at Meijer in October 2006 with a thirty-pound lifting restriction, but told Dr. Kurz on October 24 that her “pain [was] so bad she can barely do anything.” (Tr. at 302.) Lyriea and a TENS “help[ed] her a little bit.” (Id.) She walked slowly and had limited lumbar motion, yet she appeared normal by all other measures. (Id.) She informed Dr. Kurz that another physician, completed an EMG in September and “told [her] it was normal.” (Id.) An MRI from September “suggested] there is some scar tissue around the epidural region,” Dr. Kurz observed. (Id.) X-rays of the L4-S1 instrumentation and L5-S1 fusion showed they were “doing pretty good,” though the L4-5 discs looked less fused. (Id.) Dr. Kurz recommended stricter work limitations: “a three month work restriction of no repetitive bending, squatting, stooping, twisting, lifting, and climbing. She should have a sit-stand option, and no lifting greater than 10 pounds.” (Id.) A corset and certain anti-depressants would also alleviate pain, he added. (Id.)

She began taking an anti-depressant, Cymbalta, and by the following visit she proclaimed that her numbness and tingling occurred only occasionally. (Tr. at 301.) She stopped taking Lyriea without noticing any difference. (Id.) Dr. Kruz’s examination show modest improvements: her ambulation was now “fine” and her lumbar motion was “a little bit improved.” (Id.) She intended to keep working with the “present” restrictions for another six months—it is not clear what those restrictions were—because without them, Dr. Kruz thought she was incapable of working. (Id.)

The Record then jumps to April 19, 2007, when Plaintiff was back to working forty hours per weak with “quite a bit of pain,” numbness, and tingling. (Tr. at 300.)' Cymbalta helped, but not enough, and she no longer took Lyriea. (Id.) Dr. Kurz thought her “[a]mbulation [was] fine, but a little slow,” and her “[l]umbar motion [was] still rather limited.” (Id.) X-rays, however, showed “stability” in the L4-S1 region, the same area that troubled her. (Id.) He began to suspect pseudarthrosis, and accordingly ordered a CT scan and prescribed Neurontin. (Id.) The scan showed that the bilateral transpedicle screws were in place and that the “alignment of [the] lumbar sacral spine [was] unremarkable.” (Tr. at 274, 277.) The radiologist suspected “mild disc protrusion” on the left side at L4-L5 and moderate protrusion at L5-S1. (Id.)

Nothing had changed by the next appointment two months later. (Tr. at 299.) Plaintiff decreased the Neorontin dosage because it caused her to become somnolent, but Dr. Kurz encourage her to slowly double the amount she currently took. (Id.) A “re-do surgery on her pseudoar-throsis” seemed likely to Dr. Kurz if she did not improve by the next visit. (Id.) This was unfortunately the case, and during the July 17 visit objective evidence supported Plaintiffs description of “unrelenting” pain: her gait was slow, her hamstring was “a little bit tight,” and the lumbar x-rays and CT scan “show[ed] what appears to [have been] pseudarthro-sis at L4-5 and L5-S1.” (Tr. at 298.) They decided to proceed with the “re-do surgery.” (Tr. at 298-99.)

Plaintiff checked into William Beaumont Hospital on August 8 for an L4 to SI revision laminectomy and posterior spinal fusion with iliac crest bone graft. (Tr. at 269-72.) The surgery went well; Dr. Kurz removed the old screws, which were “reasonably tight” and had not violated the pedicles, (Tr. at 271), and replaced them with new screws in “[excellent ... location and alignment----” (Tr. at 271-72.) She began physical therapy in the hospital before leaving on August 10, with a prescription for Lortab effectively controlling her pain. (Id.) A week later, however, Plaintiff told Dr. Kruz that there had been “no real changes,” though she now ambulated well and had no observable abnormalities. (Tr. at 297.) Dr. Kurz reviewed x-rays showing the instrumentation was in place and told her to “increase ambulation” and return in one month. (Id.)

Sometime before her next appointment, on September 20, she started taking Lo-trab again. (Tr. at 296.) She had “some back pain,” but Dr. Kurz found she was “doing okay.” (Id.) He intended to reintroduce gradually Neurontin and physical therapy into her treatment plan. (Id.) She “continue[d] to improve slowly” through the following visit on November 20, telling Dr. Kurz that leg numbness, tingling, and pain had diminished. (Tr. at 295.) Her gait was “fine” and the other test results were unchanged. (Id.) Dr. Kurz planned to “get her into physical therapy for 6 weeks” and tweak her medications to slowly decrease Lortab dosages. (Id.)

Physical therapy sessions with Mr. Miller began on November 28. (Tr. at 283.) She rated her pain at level seven on the VA scale, told Mr. Miller it disrupted her sleep, noted that her calf cramped and twitched, and reported “sensory deficits in the [left] lateral thigh and calf to her foot .... ” (Id.) He confirmed the sensory deficits and observed a few of the same issues from her last round of therapy, such as a forward flexed posture; but her strength continued to be normal. (Id.) She could not carry out daily activities without pain: she hurt while dressing, performing personal care, driving, and acting as a Girl Scout troop mother. (Id.)

Over the next month, she received nine physical therapy sessions. (Tr. at 281.) Mr. Miller assessed her condition on December 28, finding that she “made very little progress with physical therapy, still experiencing constant pain of 8/10.” (Id.) She also seemed “to have lost some strength in the hip and knee since the initial evaluation.” (Id.) Plaintiff estimated that she could stand for fifteen minutes, walk ten to fifteen minutes, and sit for thirty minutes. (Id.) Mr. Miller planned to continue treatment for a few additional weeks. (Tr. at 282.)

On January 8, 2008, Plaintiff again visited Dr. Kurz. (Tr. at 294.) He wrote that physical therapy “was helping her,” but the massage methods used in one session inflamed her left lower back. (Id.) Her gait had slowed, tenderness developed around the inflamed area, and her lumbar motion decreased; Dr. Kruz discerned no other changes and consequently advised continuing physical therapy but avoiding massage. (Id.)

By March 4, 2008, she complained of having “good days and bad day, but most of her days ... are bad.” (Tr. at 293.) None of the objective measures had changed from the prior report. (Id.) In tears, she expressed that her impending return to work caused “tremendous ... stress,” claiming that her employer was “trying to railroad her back into working too soon and she [said] almost any activity is causing her pain.... She [said] that she [was] afraid to go back to work, as she [felt] they [were] not going to honor any restrictions.” (Id.) None of Dr. Kurz’s objective measures had changed from the prior report. (Id.) He addressed her concerns not with medical advice, but rather with practical counsel: “the best way to take care of this,” he told her, would be “to get an independent evaluation which would include a functional capacities evaluation .... [B]ased on that I will make recommendations for restrictions at work, and she will call me after that.” (Id.) Instead, Plaintiff did not come back to Dr. Kurz until after filing her disability claim in 2011. (Tr. at 169, 319.)

The ALJ allowed Plaintiff to submit additional evidence after the hearing but prior to the written decision, including reports from two appointments, CT scan results, and deposition testimony from Dr. Kurz. (Tr. at 46-48.) During the November 23, 2011 visit to Dr. Kurz, Plaintiff reported that she had improved after her second surgery, but quickly began wrestling with chronic pain again and, in July 2008 she started falling down. (Tr. at 319.) Her lower back pain persisted, moving into her right leg. (Id.) Her pain level was at ten out of ten on the VA scale, and getting worse. (Id.) She tested normal for strength, flexibility, coordination, mood, and reflexes. (Id.) MRIs revealed that screws from the spinal fusion had broken, but Dr. Kurz did “not see significant displacement.” (Tr. at 320.) He also thought “she might have a solid arthrodesis, but it [was] difficult to tell with the instrumentation in place.” (Id.) He diagnosed bilateral lumbar radiculopa-thy and low-back pain and recommended more imaging studies and a CT scan. (Id.) He also hoped that she would find a different anti-depressant, such as Cymbal-ta, because “she [was] obviously depressed----” (Id.) The CT scan on December 1 showed a lesion on Plaintiffs left iliac bone, focal disc bulging at L5-S, and a “mild posterior disc bulge at L4-S.” (Id.)

The final medical report in the Record is from a visit with Dr. Kurz on December 20. (Tr. at 321.) Her pain specialist, who remained nameless, doubled her Neurontin dosage, which helped to bring her pain down to as low as four on the VA scale. (Id.) The notes report, “[s]he does not really have too much numbness and tingling, or any pain. It seems to have settled down. The pain is more of an ache; and sometimes it is burning. It looks to me like she is in much better spirits today.” (Id.) The objective testing displayed normal results, and Dr. Kurz concluded “[t]here is really nothing further I need to do for her. She will call me as necessary.” (Id.)

On January 13, 2012, Plaintiffs attorney deposed Dr. Kurz. (Tr. at 323-40.) He testified that he performed two “extensive” surgeries on her back and that she was a current patient. (Tr. at 327-28.) However, the two visits in the winter of 2011 were the only times he saw her since March, 2008. (Tr. at 328.) He then testified that Plaintiffs medical condition equaled musculoskeletal system listings 1.04(A) and (B): she had evidence of nerve root compression, documented by an EMG, an MRI, and her subjective complaints; she had “an element of spinal arachnoiditis ... documented on a lumbar MRI scan that [Dr. Kurz] believe[d] was done in 2006 ... and that showed evidence of significant epidural fibrosis, which is the same thing as spinal arachnoiditis.” (Tr. at 329.) He found Plaintiff “very reliable” because she complied with his recommendations “within a reasonable amount of time .... ” (Tr. at 331.) Plaintiffs physical pains produced depression, which could significantly affect her ability to concentrate, focus, and remember. (Tr. at 337.)

He further opined that her condition would have continued after March 2008 through the present. (Tr. at 332.) The pain persisted after the first surgery because, as shown by a CT scan, “clearly she had not fused the spine properly .... ” (Id.) The pseudoarthrosis—which Dr. Kurz defined as incomplete fusing—was present even after the second surgery. (Tr. at 332-33.) He qualified this, however, noting that at his last appointment in March 2008, it “would [have been] too early for the pseudoarthrosis to have been completely healed and repaired.” (Tr. at 333.) He was confident that her complaints of pain relating to the period 2008 through 2010 stemmed from the conditions that he diagnosed in March 2008. (Tr. at 336.) His recent examinations in 2011 verified his opinions, he stated, and showed that “if ' anything, she was worse” now than in 2008. (Tr. at 338.)

Her significant difficulties walking, sitting, and standing “prevented her from doing any reasonable functional activity.... [A]nd therefore all the inactivity ... was consistent with her symptoms and also necessitated by the severe pain that she was in.” (Tr. at 332.) In short, she could not be gainfully employed unless she found a job allowing her to lie down in bed most of the day. (Tr. at 333-34.) A sit-stand option would be unavailing because she could only sit or stand for ten to fifteen minutes. (Tr. at 334.)

The Function Report Plaintiff completed in March 2011 depicted her daily routine: she brought her children to school, showered, cleaned her home for up to four hours per day, washed clothes, rested, watched television, fetched the children from school, assisted with homework, and prepared dinner. (Tr. at 200.) She described a few troubles with personal care caused by her back, mostly dealing with bending, but could nonetheless handle each task without help. (Tr. at 200-01.) She also went outside “at least once a day”; handled her finances; shopped, with help; participated in a few social activities; followed instructions and authority figures well; had no problems concentrating or remembering information, but needed help completing tasks; and did not use any assistive devices. (Tr. at 201-05.)

Finally, on November 22, 2011, Jennifer Turecki conducted a vocational assessment of Plaintiff. (Tr. at 229-31.) Plaintiff shifted in her chair, appeared physically uncomfortable, and cried during the session. (Tr. at 229.) Ms. Turecki reviewed Plaintiffs work history and the vocational classifications of various past jobs. (Tr. at 229-30.) “Her concentration is poor as is her memory,” and the pain disrupted her ability to focus. (Tr. at 230.) “She has generalized anxiety and is prone to anxiety attacks.” (Id.) Ms. Turecki concluded that Plaintiff “has numerous symptoms of disability that are preclusive to the most basic demands of competitive employment,” including her inability to focus, her anxiety attacks and crying spells, her need for unscheduled breaks, her likely absenteeism, and her need to lie down. (Tr. at 231.)

At the administrative hearing, Plaintiffs representative claimed that Plaintiff had “sparse medical treatment because ... the best treatment she felt was to limit her activity....” (Tr. at 48.) Plaintiff testified about her duties at Meijer, which included wrapping meats, stacking cases, unloading freight, cleaning, and stocking; she frequently lifted over seventy-five pounds. (Tr. at 60.) She first injured her back in 2004 unloading boxes from a skid: “I just couldn’t move. I was screaming for—trying to scream for help, but it was hurting even trying to scream for the help. So I was kind of stuck there.... ” (Tr. at 61.) She did not work again over the next two years and when she returned her new position was to monitor the gas station for customers who failed to pay—she wrote down their license plate numbers and called in her report on a special phone line. (Tr. at 62.) She “sat and stood” as she needed. (Tr. at 64.) She stayed in the position from January 2007, until her surgery in August 2007, but it was a struggle. (Tr. at 64-67.)

Plaintiff testified that she lived with her husband, two teenage children, and her sister. (Tr. at 55.) She reported doing the laundry once or twice per month. (Tr. at 56-57.) She did not need to drive “very much” and she generally spent the her days watching television. (Tr. at 69-70.) Her sister moved in after Plaintiffs 2004 accident. (Tr. at 70-71.) Plaintiff occasionally cooked, but did little else; vacuuming, for example, was too painful. (Tr. at 72.) Her older children visited multiple times each week, bringing their children to see Plaintiff. (Tr. at 72-73.)

Plaintiff told the ALJ that she started taking pain medication in June 2011; before that she addressed her pain by limiting her activity. (Tr. at 73-74.) Plaintiff also wanted the ALJ to consider her depression, anxiety, and panic attacks. (Tr. at 74.) Charlene Bailey, a physician’s assistant, had arranged her antidepressant prescriptions for years. (Tr. at 74-75.) She began seeing Ms. Bailey in 2009, after she returned from Alabama, as a result of anxiety and panic attacks surrounding her physical problems. (Tr. at 90-91.) In addition, Plaintiff claimed poor concentration and memory, and a “really terrible” bladder. (Tr. at 75-76.) She smoked half of a pack of cigarettes per day. (Tr. at 77.)

The functional assessment she provided to the ALJ was consistent to those she gave to her physicians. (Tr. at 76-77.) She could walk around the house, sit comfortably for five to ten minutes, and lift up to a gallon of milk. (Tr. at 76-77.) She had poor balance and, she asserted, she probably should have purchased a walking device but felt that using the device would be too emotionally difficult. (Tr. at 78.) In short, she stated, “I can’t even get through my daily living at home, so I don’t know how I would be able to work.” (Tr. at 78.)

Her attorney then took over the questioning. (Tr. at 79.) Plaintiff said that her TENS unit helped with the pain and a back brace kept her posture from sagging. (Id.) In July, 2008, her husband’s employer transferred him to Alabama. (Tr. at 80.) She occasionally saw a physician there, obtaining a prescription from Cymbalta. (Tr. at 81.) She did not take more pain medication

[bjecause it just kind of masked it and I was afraid of having a drug addiction. I felt like I already had enough problems. I didn’t want to have another problem because, you know, I didn’t want to be addicted to drugs or my body [to] have to have drugs. Because they said once you’re on them for a long time, your body feels the need to have them. And I just—I didn’t want to have to go through battling a drug addiction on top of battling this pain that I have all the time....

[T]he pills don’t take all the pain away. The best thing to do is lay down and try to limit my activity and, you know, at my own pace to be able to do things. But the best thing is laying down.

(Tr. at 81-82.)

Plaintiff asserted that her monitor position at Meijer was developed specifically for her: “that has never been a job that was given to anyone at all ever, at any time.” (Tr. at 83.) Nonetheless, “it was very hard for [her] to sit there for that amount of time,” and she had to leave work early on occasion. (Tr. at 83.) If Meijer had not “force[d] [her] to go back,” she felt, “maybe [her back] would have healed.” (Tr. at 84.) She settled her workers’ compensation case because returning to work could have led to another surgery, an emotionally daunting prospect. (Tr. at 84-85.)

Her health improved after the second surgery, but quickly worsened and grew to include her legs, feet, and gluteal muscles. (Tr. at 86.) On multiple occasions, the numbness prevented from realizing her foot was asleep and she would consequently fall down on the stairs. (Tr. at 87.) She was hesitant to see Dr. Kurz after the falls because she “was afraid because ... if he says, you know, you hurt something or something up in here, [she] would be back in the same spot. [She] was so afraid because it was so hard to recover.” (Tr. at 88.) She saw a physician “a couple times” in Alabama before returning to Michigan in 2009. (Tr. at 90.)

She then appended a list of other health issues not mentioned elsewhere or merely hinted at, that would cause her to miss work. (Tr. at 93-95.) Hand numbness and cramps caused her to drop items and prevented her from writing entire letters. (Tr. at 94.) Migraines or headaches occurred three to four times per week, lasting between hours and days. (Tr. at 95.) The Cymbalta she took during the insured period made her “groggy.” (Tr. at 96.)

When she could shop, she used an electric cart with a seat. (Tr. at 95-96.) She drove only short distances because, she stated, “I’m afraid if my foot ... goes numb and I don’t feel it, you know, how am I going to be able to drive. I would, you know, be in an accident and I don’t want to take that chance, so. It hurts to sit and drive____” (Tr. at 97.) Her family did not “go out to eat,” she noted, “because I don’t want to have to get up and leave if I can’t stay.” (Tr. at 99.) She concluded that she “couldn’t handle the sitting in the chair job” as a monitor at Meijer, “so [she didn’t] know how [she] would have been able to do anything” else at work. (Tr. at 100.)

The attorney then clarified Plaintiffs relationship with Dr. Kurz. (Tr. at 102.) Me-ijer paid for Plaintiff to see him during her workers’ compensation case and she continued to see him after that. • (Tr. at 102-03.) Plaintiffs attorney claimed credit for the recent visits to Dr. Kurz: “[i]t was at my doing .... I said you need to go back to Dr. Kurz because Judge McKay’s not going to have anything.” (Tr. at 102.) Plaintiff had not seen Dr. Kurz since 2008, in part, because insurance no longer covered the visits. (Tr. at 103.)

The ALJ then questioned Plaintiff regarding her treatments. (Tr. at 104.) Dr. Kurz had, at one point, recommended increasing her walking, which Plaintiff claimed she tried but was too painful. (Tr. at 104-05.) She admitted that physical therapy helped, but then suggested “it started to get worse to where it was hurting [her]. So they said well, we don’t want you to go home hurting. We don’t want to make you worse off than what you are.... ” (Tr. at 105.)

The VE then testified that Plaintiffs gas station monitor job would correlate with the Dictionary of Occupational Titles (“DOT”) position for surveillance system monitor. (Tr. at 109.) The ALJ then posed a hypothetical to the VE, asking him to consider an individual with Plaintiffs background who could “perform the full range of light exertional work” with a few additional restrictions:

[The] hypothetical claimant needs to be limited to activities such as climbing stairs, crouching, crawling, kneeling, stooping, bending or twisting at the waist on an occasional basis. She needs to avoid workplace hazards such as dangerous moving machinery, unprotected heights. I ... would preclude climbing ladders in that. And she needs to be limited to work that’s simple, routine or repetitive in nature where she controls the pace of the work.

(Tr. at 110.) The VE responded that the individual could not perform Plaintiff’s past work as a meat wrapper or stock clerk. (Id.) He was less certain, however, about the surveillance position. “Though it’s simple, it’s—well, it’s routine,” he stated. (Tr. at 110) But he added, “[i]t’s something more than simple, however,” both in general and how she performed it. (Tr. at 110-11.) The VE pinned his conclusions on the sporadic tempo of the work, the long periods of inactivity followed by bursts of action. (Tr. at 111.)

In any case, the VE offered “some examples” of other jobs the hypothetical individual could perform: simple assembly, packaging, and sorting jobs (10,000 in southeastern Michigan, 20,000 in Michigan); mail sorting positions (2,000 in southeastern Michigan, 4,000 in Michigan); and attendant positions (3,000 in southeastern Michigan, 6,000 in Michigan) (Tr. at 112.) If the hypothetical claimant had to sit or stand at work, she could perform the assembly, packaging, and sorting jobs reduced to 4,000 in southeastern Michigan and 8,000 statewide. (Tr. at 112-13.) Additionally, Plaintiff could perform approximately 800 of the attendant positions in southeastern Michigan, and 1,000 in the state. (Tr. at 113.)

Throwing, another limitation into the hypothetical, the ALJ asked what jobs would remain with if the individual was “limited to lifting and carrying sedentary work of up to ten pounds.... ” (Tr. at 113.) The VE noted that the parking lot attendant was formally classified as a light position, but was “more performed at the sedentary exertional-level” and therefore “800 jobs would still exist.” (Tr. at 113-14.) The individual could also work as an industrial processor (2,000 in southeastern Michigan and 4,000 in Michigan). None of these jobs would require more than occasional use of foot pedals or controls, but some would require frequent contact with others, reducing the total job base by about half. (Tr. at 114.) The VE stated that more than two absences per month precluded work, as would recurrent unscheduled breaks to lie down. (Tr. at 115.) Finally, the VE opined that if he fully credited Ms. Moran’s testimony, he would conclude that her need for almost continuous recumbent positioning ruled out competitive employment. (Tr. at 115-16.)

The VE then elaborated his reasoning for not labeling surveillance monitoring as simple and routine work. (Tr. at 117.) The VE noted that many jobs with constant change, such as fast food positions, are considered unskilled yet, in his opinion, were not simple or routine because

things are always in flux. There are busy times, there are slower times.... And there’s a lot [of] boredom and one of the challenges of those kinds of jobs is staying on task because of so little activity. It’s just that when ... the need for activity does arise, it takes it out of the simple and routine in my opinion. It ... emotionally takes it to- a different level.

(Tr. at 118.) The ALJ pointed out that system monitors “simply monitor the cameras, as they are, and notify authorities by telephone if need for corrective action. They’re pushing a button, something of that nature. They’re not actually putting themselves into the situation ----” (Id.) The VE replied, “I guess I have a hard time with ... safety or personnel violations being called routine. That’s my view on it.” (Id.)

F. Analysis and Conclusions

1. Legal Standards

The ALJ determined that during the time Plaintiff qualified for benefits, she had the residual functional capacity (“RFC”) to perform a limited range of sedentary work:

[T]he claimant had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) that allows her to alternate between sitting and standing while engaged in work. She should avoid workplace hazards such as moving machinery, unprotected heights, or climbing ladders. Last, she is limited to work that is simple, routine, and repetitive where she is able to control the pace of the work..

(Tr. at 25.) Sedentary work

involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.

20 C.F.R. §§ 404.1567(a), 416.967(a). She could accordingly perform past relevant work as a surveillance monitor and a significant number of other jobs in the regional economy. (Tr. at 25, 32.)

After review of the record, I suggest that the ALJ utilized the proper legal standard in her application of the Commissioner’s five-step disability analysis to Plaintiffs claim. I turn next to the consideration of whether substantial evidence supports the ALJ’s decision.

2. Substantial Evidence

If the Commissioner’s decision applied the correct legal standards and is supported by substantial evidence, the decision must be affirmed even if this Court would have decided the matter differently and even where substantial evidence supports the opposite conclusion. 42 U.S.C. § 405(g); McClanahan, 474 F.3d at 833; Mullen, 800 F.2d at 545. In other words, where substantial evidence supports the ALJ’s decision, it must be upheld.

Plaintiff argues the ALJ violated the treating source rule by disregarding Dr. Kurz’s opinion evidence. (Doc. 10 at 10-14.) Specifically, the ALJ supposedly jettisoned Dr. Kurz’s medical opinions for the ALJ’s own unfounded interpretations of the medical data (Id. at 13-14.) Additionally, she alleges the ALJ mishandled the medical listing analysis, rejecting Dr. Kurz’s opinion without any other direct expert evidence. (Id. at 13.) Finally, she finds error in the ALJ’s treatment of the surveillance position; particularly that the ALJ characterized it as simple and routine, and also that she failed to address Plaintiffs argument that the surveillance job represented an accommodated position. (Id. at 14-16.)

I suggest that the substantial evidence supports the ALJ’s findings at step five; however I suggest that the ALJ’s listing analysis is not supported by substantial evidence. I therefore recommend granting Plaintiffs Motion, denying Defendant’s Motion, and remanding for further proceedings.

a. Medical Sources and the RFC

The ALJ must “consider all evidence” in the record when making a disability decision. 42 U.S.C. § 423(d)(5)(B); accord 20 C.F.R. § 404.1520(a)(3); Wyatt, 974 F.2d at 683. The regulations carve the evidence into various categories, but the only relevant distinction for present purposes is between “acceptable medical sources” and “other sources.” 20 C.F.R. § 404.1513. “Acceptable medical sources” include, among others, licensed physicians and licensed or certified psychologists. Id. § 404.1513(a). “Other sources” include medical sources who are not “acceptable” and almost any other individual able to provide relevant evidence. Id. § 404.1513(d). There are important differences between the two types of sources. For example, only “acceptable medical sources” can establish the existence of an impairment. SSR 06-03p, 2006 WL 2329939, at *2.

Both “acceptable” and non-acceptable sources provide evidence to the Commissioner, often in the form of opinions “about the nature and severity of an individual’s impairment(s), including symptoms, diagnosis and prognosis, what the individual can still do despite the impairment(s), and physical and mental restrictions.” Id. at *2. When “acceptable medical sources” issue such opinions the regulations deem the statements to be “medical opinions” subject to a multi-factor test that weighs their value. 20 C.F.R. § 404.1527. Excluded from the definition of “medical opinions” are various decisions reserved to the Commissioner, such as whether the claimant meets the statutory definition of disability and how to measure his or her residual functional capacity. Id. at 404.1527(d).

The ALJ must use a six-factor balancing test to determine the probative value of medical opinions from acceptable sources, including treating opinions not given controlling weight, 20 C.F.R. § 404.1527(c), and the ALJ should almost certainly use the same analysis for “other source” opinions as well. See Cruse, 502 F.3d at 540-42; SSR 06-3p, 2006 WL 2329939, at *2. The test looks at whether the source examined the claimant, “the length of the treatment relationship and the frequency of examination, the nature and extent of the treatment relationship, supportability of the opinion, consistency of the opinion with the record as a whole, and specialization of the treating source.” Wilson, 378 F.3d at 544. See also 20 C.F.R/§ 404.1527(c).

Certain opinions of a treating physician, in contrast, receive controlling weight if they are “well-supported by medically acceptable clinical and laboratory diagnostic techniques” and are “not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(d)(2). See also Wilson, 378 F.3d at 544. The only opinions entitled to dispositive effect deal with the nature and severity of the claimant’s impairments. 20 C.F.R. § 404.1527(d); SSR 96-2p, 1996 WL 374188, at *1-2. Therefore, the ALJ does not owe a treating opinion deference on matters reserved to the Commissioner. 20 C.F.R. § 404.1527(d); SSR 96-2p, 1996 WL 374188, at *1-2. The ALJ “will not give any special significance to the source of an opinion[, including treating sources],” regarding whether a person is disabled or unable to work, whether an impairment meets or equals a Listing, the individual’s residual functional capacity (“RFC”), and the application of vocational factors. Id. § 404.1527(d)(3).

Additionally, a physician’s “notation in his notes of a claimed symptom or subjective complaint from the patient is not medical evidence; it is the ‘opposite of objective medical evidence.’ ... An ALJ is not required to accept the statement as true or to accept as true a physician’s opinion based on those assertions.” Masters v. Astrue, 818 F.Supp.2d 1054, 1067 (N.D.Ill.2011) (quoting Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir.2010)) “Otherwise, the hearing would be a useless exercise.” Id. See also Francis v. Comm’r of Soc. Sec., 414 Fed.Appx. 802, 804 (6th Cir.2011) (noting that there was no medical opinion in “Dr. Kllefer’s pain-related statement ... [because] it merely regurgitates Francis’s self-described symptoms.”); Poe v. Comm’r of Soc. Sec., 342 Fed.Appx. 149, 156 (6th Cir.2009) (“[Substantial evidence supports the ALJ’s determination that the opinion of Dr. Boyd, Poe’s treating, physician, was not entitled to deference because it was based on Poe’s subjective complaints, rather than objective medical data.”).

The regulations mandate that the ALJ provide “good reasons” for the weight he assigns the treating source’s opinion in his written determination. 20 C.F.R. § 404.1527(c)(2). See also Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 875 (6th Cir.2007). Therefore, a decision denying benefits

must contain specific reasons for the weight given to the treating source’s medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any - subsequent reviewers the weight the adjudicator gave to the treating source’s opinion and the reasons for that weight.

SSR 96-2p, 1996 WL 374188, at *5 (1996). See also Rogers, 486 F.3d at 242. For example, an ALJ can properly reject a treating source opinion if it lacks supporting objective evidence. Revels v. Sec. of Health & Human Servs., 882 F.Supp. 637, 640-41 (E.D.Mich.1994), aff'd, 51 F.3d 273, 1995 WL 138930, at *1 (6th Cir.1995) (unpublished table decision). “This requirement is not simply a formality; it is to safeguard the claimant’s procedural rights.” Cole v. Astrue, 661 F.3d 931, 937 (6th Cir.2011). “[A] failure to follow the procedural requirement of identifying the reasons for discounting the opinions and for explaining precisely how those reasons affected the weight accorded the opinions denotes a lack of substantial evidence, even where the conclusion of the ALJ may be justified based upon the record.” Rogers, 486 F.3d at 243.

When a disability determination that would be fully favorable to a claimant cannot be made solely on the basis of the objective medical evidence, an ALJ must analyze the credibility of the claimant, considering the claimant’s statements about pain or other symptoms with the rest of the relevant evidence in the record and factors outlined in Social Security Ruling 96-7p. Credibility determinations regarding a claimant’s subjective complaint