Germany-Johnson v. Commissioner of Social Security

                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 08a0677n.06
                          Filed: November 5, 2008

                                         07-3168

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


KAREN GERMANY-JOHNSON,                       )
                                             )
       Plaintiff-Appellant,                  )
                                             )
v.                                           )   ON APPEAL FROM THE UNITED
                                             )   STATES DISTRICT COURT FOR THE
COMMISSIONER              OF    SOCIAL       )   NORTHERN DISTRICT OF OHIO
SECURITY,                                    )
                                             )
       Defendant-Appellee.                   )




       Before: DAUGHTREY and GILMAN, Circuit Judges; EDMUNDS,* District Judge.


       PER CURIAM. In this appeal challenging the denial of Social Security disability

benefits, claimant Karen Germany-Johnson assigns as error the “second step” ruling by

the administrative law judge (ALJ) that her medical condition was not severe enough to

advance the sequential evaluation process, as well as the ALJ’s failure to give appropriate

deference to the opinion of her treating physician. Denial of benefits was affirmed by the

Appeals Council and by the district court. We conclude that the ALJ erred as a legal

matter by (1) applying the wrong standard of review at the second step of the five-step

evaluation process and (2) failing to comply with the Social Security Administration’s rule


       *
       The Hon. Nancy G. Edmunds, United States District Judge for the Eastern District of
Michigan, sitting by designation.
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that a decision denying benefits must include specific reasons for rejecting the opinion of

a treating physician, a requirement reiterated in our opinion in Wilson v. Commissioner of

Social Security, 

378 F.3d 541

 (6th Cir. 2004). As a result, this case must be remanded to

the ALJ for further consideration.


                  I. FACTUAL AND PROCEDURAL BACKGROUND


       After working steadily from 1969 to 1996, with a four-year break in the early 1980s

to start a family, Germany-Johnson was involved in an automobile accident in 1996 that

apparently caused neck and back pain, which in turn exacerbated nerve damage she had

experienced as the result of three surgeries on her lower spine dating back to 1972.

Unable to maintain full-time work, she held several part-time or short-term jobs over the

next six years, while she was in the care of her primary physician, Dr. Mark Meacham. In

1998, she was seen by an orthopedic specialist, Dr. John Collis, who diagnosed her with

chronic shoulder and neck pain due to arthritic disc disease and severe pain due to C5 disc

herniation and extrusion. Her efforts at physical therapy resulted in the onset of vertigo,

which was serious enough to require hospitalization.         In 2000, Germany-Johnson

developed an ulcer due to taking medication for her neck and low back pain. Two years

later, Dr. Meacham referred Germany-Johnson to Dr. Raynor, a rheumatologist, who found

that she was “likely” suffering from fibromyalgia.


       In November 2002, the claimant was also referred by Dr. Meacham to Dr. Gardziola,

a neurologist. Dr. Gardziola recognized that she was the victim of chronic pain but said

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that he could not easily identify its source because it did not fit a neuropathic pattern. He

nevertheless noted that Germany-Johnson had a long history of muscle pain and spasm.


       Germany-Johnson applied for disability benefits in 2002. In December of that year,

she was seen by Dr. Alok K. Bhaiji, a consulting physician chosen by the Social Security

Administration. He found that the claimant had vertigo and herniated discs and ordered

an MRI. It revealed Germany-Johnson had annular bulging at the L4-L5 area and left-

sided disc herniation at L5-S1. Another MRI taken of the cervical spine revealed bony

degenerative changes in her neck. Other diagnoses included spondylosis and lordotic

reversal, scoliosis with pelvic tilt, and a peptic ulcer caused by the various pain medications

that Germany-Johnson was taking.


       In February 2003, Dr. Meacham listed diagnoses of myositis, cervical syndrome,

and myalgia and noted that the claimant’s pain was at a level six out of ten. That month

Dr. Gardziola found that the claimant’s condition remained unchanged and that she

continued to have pain and weakness. By the end of February, Dr. Meacham had written

a letter to the claimant explaining that he had treated her for several years and that he had

“NO doubts that the combination of medical diagnoses you have contribute to significant

difficulty with maintaining gainful employment.” A year later, on January 2, 2004, Dr.

Meacham wrote another letter, noting that the claimant had been his patient since the mid-

1990's and had undergone exhaustive evaluations of her physical symptoms by many

specialists, without any resolution of her neck pain and fibromyalgia symptoms. He


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concluded that Germany-Johnson was unable to sustain work and that her symptoms were

debilitating.


       In applying for disability benefits in 2002, Germany-Johnson described nerve pain

in her back and neck, painful muscle spasms, and numbness in her coccyx, saying that the

pain made it difficult to perform normal tasks like walking, sitting, standing, doing laundry,

lifting cookware, and grocery shopping, among others. She also said that she needed help

from her family in preparing meals and house-cleaning and that she was largely

housebound. Her application was denied initially and also upon reconsideration.


       Germany-Johnson then requested a hearing before an administrative law judge, at

which she appeared with counsel and testified. A medical expert and a vocational expert

also testified. The ALJ determined that Germany-Johnson was not disabled, finding that

she “d[id] not have any impairment or impairments [that] significantly limit her ability to

perform basic work-related activities” and, therefore, “d[id] not have a severe impairment.”

The Appeals Council denied the claimant’s request for review and a magistrate judge,

sitting by agreement as the district court, found that there was substantial evidence to

support the decision of the administrative law judge and upheld that decision.


                                     II. DISCUSSION


A. Standard of Review




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      We exercise de novo review of district court decisions in Social Security cases. See

Valley v. Comm’r of Soc. Sec., 

427 F.3d 388, 390

 (6th Cir. 2005). The underlying findings

of the administrative law judge are reviewed for substantial supporting evidence. See 

42 U.S.C. § 405

(g). Substantial evidence is “‘such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.’” Richardson v. Perales, 

402 U.S. 389, 401

 (1971)(quoting Consolidated Edison Co. v. NLRB, 

305 U.S. 197, 229

 (1938)).


      Under applicable Social Security regulations, the merit of a disability claim is

determined by following a sequential five-step analysis. See 

20 C.F.R. § 404.1520

. The

ALJ must determine, first, whether the claimant is working; second, whether the alleged

impairment is severe; third, whether the impairment meets or equals a listed impairment

and hence has a certain level of severity; fourth, whether the claimant can still do past

relevant work; and, finally, when considering the claimant’s age, education, work

experience, and residual functional capacity, whether the claimant can do other work. See

20 C.F.R. § 404.1520

(a)(4). The burden is on the claimant to satisfy the first four steps.

See Longworth v. Comm’r Soc. Sec. Admin., 

402 F.3d 591, 595

 (6th Cir. 2005). In this

case, the ALJ followed the required evaluation only through the second step, finding that

the claimant was not disabled because her impairments were not “severe.”


B. Severity of Impairment




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       The step-two severity determination is phrased in the negative: if a claimant does

not have a severe medically determinable physical or mental impairment, for at least twelve

months, or a combination of impairments that is severe, the claimant is not disabled. 

20 C.F.R. § 404.1520

. In this circuit, the claimant’s burden of proof at step two “has been

construed as a de minimis hurdle in the disability determination process . . . [A]n

impairment can be considered not severe only if it is a slight abnormality that minimally

affects work ability regardless of age, education, and experience.” Higgs v. Bowen, 

880 F.2d 860, 862

 (6th Cir. 1988) (emphasis added) (citing Farris v. Sec’y of Health and Human

Serv., 

773 F.2d 85, 89-90

 (6th Cir. 1985)). See also Bowen v. Yuckert, 

482 U.S. 137

, 158-

59 (1987) (“Only those claimants with slight abnormalities that do not significantly limit any

‘basic work activity’ can be denied benefits without undertaking this vocational analysis.”)

(O’Connor, J., concurring). Furthermore, step-two severity review is used primarily to

“screen out totally groundless claims.” Farris, 

773 F.2d at 89

.


       Clearly, Germany-Johnson’s impairments were not groundless under 

20 C.F.R. § 404.1521

, because the record establishes that, without question, they interfered with her

basic work activities. Basic work activities are defined as “the abilities and aptitudes

necessary to do most jobs” such as “(1) physical functions such as walking, standing,

sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing,

hearing and speaking; (3) understanding,         carrying out, and remembering simple

instructions; (4) use of judgment; (5) responding appropriately to supervision, co-workers

and usual work situations; and (6) dealing with changes in a routine work setting.” 20

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C.F.R. § 404.1521. The record reveals to our satisfaction that the claimant’s back and

neck pain and fibromyalgia limited her ability to work. Beyond the personal anecdotes from

Germany-Johnson listed above, Dr. Bhaiji found from her symptoms that she could have

difficulty walking and lifting, and Dr. Meacham, the claimant’s treating physician, described

her as totally disabled from working.


       The question in this appeal thus becomes whether there is also substantial evidence

to support the opposite conclusion – that the claimant’s impairments are so slight that they

have little, if any, impact on her work capacity. If substantial evidence supports the

decision of the administrative law judge, “this Court will defer to that finding ‘even if there

is substantial evidence in the record that would have supported an opposite conclusion.’”

Longworth, 

402 F.3d at 595

 (quoting Warner v. Comm’r of Soc. Sec., 

375 F.3d 387, 390

(6th Cir. 2004)). See also Cutlip v. Sec’y of Health and Human Serv., 

25 F.3d 284, 286

(6th Cir. 1994) (“If the Secretary’s decision is supported by substantial evidence, it must

be affirmed even if the reviewing court would decide the matter differently, see Kinsella

v. Schweiker, 

708 F.2d 1058, 1059

 (6th Cir. 1983), and even if substantial evidence also

supports the opposite conclusion, see Mullen v. Bowen, 

800 F.2d 535, 545

 (6th Cir. 1986)

(en banc).”).


       In this circuit, “substantial evidence means more than a scintilla of evidence. It

means such relevant evidence as a reasonable mind would accept as adequate to support

a conclusion.” Mowery v. Heckler, 

771 F.2d 966, 970

 (6th Cir. 1985) (quoting Lashley v.


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Sec’y of Health and Human Serv., 

708 F.2d 1048, 1053

 (6th Cir. 1983). Moreover,

“[d]isability may be established by a claimant suffering from a variety of medical problems

no one of which might be sufficiently disabling to prevent substantial gainful employment,

but when taken together have that result.” Mowery, 

771 F.2d at 971

. As in Mowery,

although the ALJ and the district court gave what can best be described as “lip service”

to this principle, we conclude that both courts came to the wrong conclusion with regard

to this claimant. 

Id.

       The ALJ acknowledged in his order that “the record indicates claimant has

diagnoses of fibromyalgia with degenerative disc disease of the cervical and lumbar

spines.” He concluded, however, that the record also “establishes that these impairments

are not severe impairments,” based upon what he identified as the claimant’s “normal”

characteristics.   For example, after describing diagnoses of annular bulging, disc

herniation, cervical disc disease, and bony degeneration, the ALJ pointed to the

“essentially normal” EMG and nerve conduction. However, he neglected to mention that

the report also suggested that further evaluation by MRI was dictated by “markedly

prolonged peroneal and posterior tibial F waves.” The administrative law judge next

alluded to physical examinations that have “noted normal range of motion of the cervical

spine, lumbar spine, as well as normal range of motion of the upper and lower extremities.”

But, the source of these findings, although not cited, was the physical examination

conducted by Dr. Bhaiji, the consulting physician hired by the Social Security

Administration, who also noted the claimant could have difficulty with walking and lifting,

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two basic work activities under 

20 C.F.R. § 404.1521

, and who recommended a further

neurological evaluation of Germany-Johnson.


       Pointing to the claimant’s “normal sensation, normal reflexes, and normal muscle

strength. . . [and also] normal gait,” the ALJ concluded that “while the claimant alleges that

she is disabled by her pain[,] her complaints are not supported by the overall objective

medical evidence in the record which is normal.” However, one of the bases for these

“normal” findings was the report of Dr. Gardziola that also described the claimant’s “long

history of muscle pain and spasm . . . [from] pinching in her neck, which creates a chain

reaction to pinching and pain in her buttock, legs, feet, shoulders, and neck.”


       Although the administrative law judge focused on what he perceived to be “normal”

findings by the medical experts, the caveats provided by those same doctors indicate that

– taking the record as a whole and including both the doctors who provided normal findings

and those who found the claimant had a severe disability – there is not substantial

evidence to support the administrative law judge’s finding that the claimant’s impairments

are not “severe,” at least for purposes of step-two analysis. See Hurst v. Sec’y of Health

and Human Serv., 

753 F.2d 517, 519

 (6th Cir. 1985) (“failure to consider the record as a

whole undermines the Secretary’s conclusion”). Indeed, in our judgment the evidence in

the record that can be considered to establish Germany-Johnson’s condition as “normal”

is minimal and is offset by the not-normal findings in the same reports.




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       The administrative law judge also based his finding that the claimant’s disability is

not severe on the nature of her prescribed medications, noting that they are commonly

used to treat mild symptoms and concluded from that fact “that the claimant [h]as an

impairment which is so slight, it would not be expected to interfere with her ability to work

or a non-severe impairment.” But this observation wholly overlooks evidence in the record

that Germany-Johnson took these medications in such large doses that she developed an

ulcer and had to stop taking them. Indeed, Dr. Cain found the claimant had an ulcer due

to “anti-inflammatory drug use.”         Moreover, as noted by her treating physician, Dr.

Meacham, the prescription drugs Vioxx and Celebrex were ineffective to control Germany-

Johnson’s pain symptoms, as was Tylenol. Although the use of relatively mild medications

may be taken to indicate that the claimant does not suffer from “severe disabling pain,”

Maher v. Sec’y of Health and Human Serv., 

898 F.2d 1106, 1109

 (6th Cir. 1989) (citing

Kimbrough v. Sec’y of Health and Human Serv., 

801 F.2d 794, 797

 (6th Cir. 1986)), the

Tenth Circuit has held that when the claimant suffers from the side effects of using pain

relievers, an ALJ cannot rely on the non-use of those same pain relievers to evaluate the

claimant’s impairment. See Frey v. Bowen, 

816 F.2d 508, 517

 (10th Cir. 1987) (“Unrefuted

testimony by both [doctors] indicated that anti-inflammatory and anti-pain medication

appropriate for [the claimant’s] degenerative arthritic condition was contraindicated

because of the side effects of stomach irritation. Although pain abatement would enhance

[the claimant’s] ability to perform sedentary work, the side effects would interfere with

restoration of his ability to work.”).


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       The ALJ also focused on the testimony of Dr. Hershel Goren, one of the agency’s

medical experts, but Dr. Goren examined only the claimant’s medical file, not the claimant

herself, in preparation for testimony regarding the validity of the other expert’s diagnoses,

the degree of the claimant’s dysfunction, and both her mental and her physical capacities.

Dr. Goren concluded that the claimant’s symptoms did not equal any Social Security

Administration listings, that she would not be impaired in a work setting, and that she would

have no restrictions on her functional capacity.          He based his conclusions on his

determination that her symptoms did not necessarily correlate with any of the MRI

abnormalities and, therefore, that those abnormalities thus could not be considered

objective findings.


        Our review convinces us that, even after extending appropriate deference to the

ALJ’s decision, the denial of relief at step two was not supported by substantial evidence.

First, the opinion of a non-examining physician such as Dr. Goren should be given

relatively little weight “if it is contrary to the opinion of the claimant’s treating physician.”

Shelman v. Heckler, 

821 F.2d 316, 321

 (6th Cir. 1987) (“[t]he testimony of [non-examining

physician] cannot provide a sufficient basis for rejecting the opinions of plaintiff’s treating

physicians . . . ”) (citing Broughton v. Heckler, 

776 F.2d 960, 962

 (11th Cir. 1985). See

also Cohen v. Sec’y Health and Human Serv., 

964 F.2d 524, 528

 (6th Cir. 1992) (“medical

opinions and diagnoses of treating physicians are entitled to great weight, and if

uncontradicted, are entitled to complete deference”) (citing King v. Heckler, 

742 F.2d 968, 973

 (6th Cir. 1984)). In this case, Dr. Goren’s opinion contradicts that of the claimant’s

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treating physician, Dr. Meacham, whose opinion was largely, if not completely, overlooked

by both the ALJ and the district court.


       In giving controlling weight to Dr. Goren’s opinion and to only selective portions of

reports by the agency’s other consulting physician, Dr. Bhaiji, and the claimant’s secondary

physician, Dr. Gardziola, the ALJ failed to give effect to the agency’s “treating source”

regulation, 

20 C.F.R. § 404.1527

(d)(2). That provision requires an administrative law judge

to give more weight to opinions from treating sources if the treating physician’s opinion is

“well-supported by medically acceptable clinical and laboratory diagnostic techniques.”

Moreover, the regulation also requires the judge to state “good” reasons for the weight

given the opinion of a claimant’s treating physician. 

20 C.F.R. § 404.1527

(d)(2). Hence,

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 medical opinion and the reasons for that weight.”

Soc. Sec. Rul. 96-2p 

1996 WL 374188

 at *5 (1996). See also Wilson v. Comm’r of Soc.

Sec., 

378 F.3d 541, 544

 (6th Cir. 2004).


       The substantive arm of the regulation, referred to in this circuit as the “treating

physician rule,” creates “a presumption, albeit a rebuttable one, that the opinion of a

treating physician is entitled to great deference, its non-controlling status notwithstanding.”

Rogers v. Comm’r of Soc. Sec., 

486 F.3d 234, 242

 (6th Cir. 2007). Even if the treating


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physician’s opinion is not given controlling weight, the administrative law judge must still

determine how much weight is appropriate for the opinion, considering: (1) the length,

frequency, nature, and extent of the treatment relationship; (2) consistency of the

physician’s conclusions and the evidence to support them; and (3) the specialization of the

treating physician. See 

id.

       Once the weight to be given the opinion is determined, the procedural arm of the

regulation requires the ALJ to “provide good reasons for discounting treating physicians’

opinions, reasons that are sufficiently specific to make clear to any subsequent reviewers

the weight the adjudicator gave to the treating source’s medical opinion and the reasons

for that weight.” 

Id.

 (internal quotation marks omitted). These reasons are particularly

important when the treating physician has diagnosed the claimant as disabled. See 

id.

As we held in Wilson, “A court cannot excuse the denial of a mandatory procedural

protection simply because, as the Commissioner urges, there is sufficient evidence in the

record for the ALJ to discount the treating source’s opinion and, thus, a different outcome

on remand is unlikely.” 

378 F.3d at 546

. Ultimately, “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

.




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       Here, the only evidence that the ALJ cited to refute the severity of the claimant’s

diagnoses was the “normal” findings of two non-treating doctors. But, the judge was

selective in parsing the various medical reports and simply failed altogether to address the

findings of Dr. Meacham, the physician who had been treating the claimant for almost ten

years, beyond merely setting them out in narrative fashion. He apparently did not give any

weight to them, nor did he explain why he had discounted the treating physician’s opinion

that the claimant was disabled from working, beyond saying that “her complaints are not

supported by the overall objective medical evidence in the record which is normal.” The

record thus establishes as a matter of law that the case must be remanded to the

administrative law court for further consideration. See Wilson, 

378 F.3d at 544

.


       On remand, the administrative law judge is further directed to evaluate Germany-

Johnson’s claims under the standard appropriate for claims of fibromyalgia. In general, an

“impairment must result from anatomical, physiological, or psychological abnormalities

which can be shown by medically acceptable clinical and laboratory diagnostic techniques.

A physical or mental impairment must be established by medical evidence consisting of

signs, symptoms, and laboratory findings, not only by [the claimant’s] statement of

symptoms.” 

20 C.F.R. § 416.908

. Fibromyalgia, however, can be confirmed as a severe

impairment without objective testing. See Rogers, 

486 F.3d at 243

 (“On at least one

occasion, we have recognized that fibromyalgia can be a severe impairment that, unlike

medical conditions that can be confirmed by objective testing, fibromylagia patients present

no objectively alarming signs.”). In fact, persons suffering from fibromyalgia “manifest

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normal muscle strength and neurological reactions and have a full range of motion.”

Preston v. Sec’y of Health and Human Serv., 

854 F.2d 815, 820

 (6th Cir. 1988). As a

result, we have previously concluded that “[t]here are no objective tests which can

conclusively confirm the disease.” 

Id. at 818

.        Instead, the standard for diagnosing

fibromyalgia in this circuit involves testing a series of focal points for tenderness and ruling

out other possible conditions through objective medical and clinical trials. See Rogers, 

486 F.3d at 244

.


        As in Rogers, the ALJ in this case did not discuss, let alone apply, the correct

standard for assessing a diagnosis of fibromyalgia in his decision, instead emphasizing and

basing his denial of benefits on “normal” physical findings, i.e., normal muscle strength,

normal range of motion, and normal gait. But for obvious reasons, these findings bore little

relevance to Dr. Meacham’s diagnosis of fibromyalgia. See Rogers, 

486 F.3d at 245

 (“in

light of the unique evidentiary difficulties associated with the diagnosis and treatment of

fibromyalgia, opinions that focus solely upon objective evidence are not particularly

relevant”).


       Finally, we note the Commissioner’s contention that remanding this case for further

consideration would be futile if, as the Commissioner insists, the claimant will fail at a later

point in the sequential determination of disability. However, we have held that it is

“inappropriate” to speculate concerning the ultimate outcome when an administrative law

judge stopped his or her evaluation at a premature step in the sequential analysis, because


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the remaining steps are for the administrative law judge to consider in the first instance.

See Farris, 

773 F.2d at 90

 (“Since the ALJ stopped at the severity stage in the evaluation

process and did not reach the question of whether Mrs. Farris’[s] disorder met or exceeded

the severity of a listed impairment, it is inappropriate for us to consider these questions at

this juncture in the case, although they must be determined by the ALJ on remand.”).


                                     III. CONCLUSION


       For the reasons set out above, we REVERSE the judgment of the district court and

REMAND this case to the administrative law court for further consideration of the

claimant’s application for disability benefits.




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       RONALD LEE GILMAN, Circuit Judge, concurring. I concur in the majority

opinion, but write separately because I disagree with the majority’s conclusion that the

record lacks substantial evidence to support the ALJ’s finding that Germany-Johnson is not

disabled. Nevertheless, I agree that the ALJ erred in failing to explain the diminished

weight that he attributed to the opinion of Germany-Johnson’s treating physician, and

would therefore remand the case for further consideration, but only on this narrower

ground.


       I agree with the majority that the record is replete with evidence that

Germany-Johnson has impairments. Indeed, this conclusion is not disputed by any of the

physicians who either examined Germany-Johnson or reviewed her file, including the

Social Security Administration’s (SSA’s) own Dr. Goren. Even the ALJ acknowledged that

Germany-Johnson suffers from the impairments of “fibromyalgia with degenerative disc

disease of the cervical and lumbar spines.” (JA 23) But he ultimately concluded that

“these impairments are not severe impairments.” (JA 23)


       The majority concludes that “the evidence that can be considered to establish

Germany-Johnson’s condition as ‘normal’ is minimal and is largely rebutted by the not-

normal findings in the same reports.” (Maj. op. 9) Yet the medical documents on record

show that the various tests conducted on Germany-Johnson repeatedly and consistently

showed “normal” results. And where abnormalities were identified, the record lacks any

information as to their severity.


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       Dr. Raynor, for example, as the claimant’s treating rheumatologist, found that her

gait and muscle strength were “normal” and that her physical exam was “unremarkable.”

(JA 109) Another examining physician, Dr. Bhaji, found, among other things, that her

reflexes and the range of motion in her upper and lower extremities were “normal.”

(JA 118) He also concluded that she would have no difficulty with work-related activities

such as sitting, standing, and carrying objects, but that she may have difficulty walking and

lifting. (JA 119) Dr. Gardziola, Germany-Johnson’s treating neurologist, documented the

fact that she experienced pinching and numbness, but said that she exhibited full strength

and that he could not easily identify her chronic pain. He did not come to any further

conclusions about the severity of her impairments, and recommended that she undergo

MRI and nerve-conduction tests. (JA 141) Dr. Burdette, who did the nerve-conduction

studies, concluded that the results were “within the broad limits of normal for a patient of

this age.” (JA 132) The radiologist, Dr. Rosenfeld, ran a series of MRI tests and found the

results to be almost entirely “normal,” with the exception of a herniated disc, “annular

bulging,” “diffuse distribution,” and “bony degenerative changes.” (JA 125-29) He did not,

however, characterize the effect or severity of these problems. (JA 125-29) And Dr.

Goren, the SSA’s medical expert, testified that Germany-Johnson did not have “objective

findings to support her complaints.” (JA 23)

       Although “not-normal” findings in Germany-Johnson’s medical record might in fact

establish that she has impairments, this court has held that the existence of such

impairments does not alone lead to the conclusion that they are (or are not) severe. See


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Higgs v. Bowen, 

880 F.2d 860, 863

 (6th Cir. 1988) (“[T]he mere diagnosis of [an

impairment], of course, says nothing about the severity of the condition.”). Where, as here,

a claimant is found to have impairments, but the tests come back either negative or in the

normal range, I do not believe that the record supports a finding that the impairments are

severe. See, e.g., Crady v. Sec’y of Health & Human Servs., 

835 F.2d 617, 620-21

 (6th

Cir. 1987) (holding that the ALJ was justified in determining that the claimant’s complained-

of knee condition was “not a severe impairment” where post-operative tests showed no

restriction of motion and “only minor degenerative joint changes” in that knee, and x-ray

results “were essentially within normal limits”). I believe that the test results provide the

most reliable and objective basis for determining the degree to which any of Germany-

Johnson’s impairments impacts the claimant’s physical abilities or activities. And the test

results in this case indicate that she has “normal” function, despite her impairments.

       To be sure, Dr. Meacham, Germany-Johnson’s treating physician, sent a letter to

her in 2003 stating that he had no doubts that she would face “significant difficulty with

maintaining gainful employment,” and sent her another letter in 2004 stating that her

symptoms were “debilitating.” (JA 145) The SSA’s so-called “treating source” regulation,

20 C.F.R. § 404.1527

(d)(2), “requires an administrative law judge to give more weight to

opinions from treating sources if the treating physician’s opinion is ‘well-supported by

medically acceptable clinical and laboratory diagnostic techniques.’”         (Maj. op. 12

(emphasis added)). Thus the opinion of a treating physician is generally given greater

weight than that of other examining physicians. Allen v. Califano, 

613 F.2d 139, 145

 (6th


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Germany-Johnson v. Commissioner of Social Security

Cir. 1980). But “such opinions receive great weight only if they are supported by sufficient

clinical findings and are consistent with the evidence.” Bogle v. Sullivan, 

998 F.2d 342, 347-348

 (6th Cir. 1993). An ALJ “is not bound by conclusory statements of doctors,

particularly where they are unsupported by detailed objective criteria and documentation.”

Buxton v. Halter, 

246 F.3d 762, 773

 (6th Cir. 2001) (citation omitted).

       The medical documentation that Dr. Meacham submitted provides little, if any,

support for his conclusions. His record of each of Germany-Johnson’s office visits consists

only of one or two pages of not-very-detailed notes in which he documents her complaints

as she described her symptoms to him, and simply lists his diagnoses without elaboration.

But he makes no mention of any method or test he used to diagnose her symptoms, or to

independently confirm or objectively evaluate the severity of those symptoms. (JA 145-56,

172-75, 183) In one case, he explicitly noted “no clinical evidence on exam.” (JA 149)

Nevertheless, the ALJ failed to comply with the requirement that he “always give good

reasons in [his] . . . decision for the weight [he gives to the] treating source’s opinion.”

20 C.F.R. § 404.1527

(d)(2). This alone is grounds for reversal. See Wilson v. Comm’r of

Soc. Sec., 

378 F.3d 541, 544

 (6th Cir. 2004) (citing 

20 C.F.R. § 404.1527

(d)(2) and holding

that “[a]lthough substantial evidence otherwise supports the decision of the Commissioner

in this case, reversal is required because the agency failed to follow its own procedural

regulation” that mandates a discussion of the weight given to the treating

physician’s opinion).




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07-3168
Germany-Johnson v. Commissioner of Social Security

       Germany-Johnson ultimately bears the burden of proving the severity of her

impairments. See Murphy v. Sec’y of Health & Human Servs., 

801 F.2d 182, 185

 (6th Cir.

1986). Although I am sympathetic to her situation, I cannot say on the basis of this record

that she has met that burden, or that the ALJ erred in finding that her impairments are not

severe. But because the ALJ failed to state his reasons for the decreased weight that he

attributed to the opinion of Germany-Johnson’s treating physician, I concur in the majority

opinion’s decision to reverse the district court’s judgment and remand the case to the ALJ

for further consideration.




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