# Petition for Writ of Certiorari — Biestek v. Berryhill, 139 S. Ct. 305 (2018) (No. 17-1184)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2018

## Text

No.

IN THE
Supreme Court of the United States
MICHAEL J. BIESTEK,
Petitioner,
v.
COMMISSIONER OF SOCIAL SECURITY,

Respondent.

On Petition for a Writ of Certiorari
To the United States Court of Appeals
For the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

FREDERICK J. DALEY, JR. ISHAN K. BHABHA

MEREDITH MARCUS Counsel of Record

DALEY DISABILITY LAw, PC NATACHA Y. LAM

601 W. Randolph Street, Jenner & Block LLP

Suite 300 1099 New York Ave., NW,

Chicago, IL, 60661 Suite 900

(312) 561-3080 Washington, DC 20001
(202) 637-6327
ibhabha@jenner.com

i
QUESTION PRESENTED

When assessing an applicant’s eligibility for social
security benefits on the basis of a disability, an
administrative law judge (“ALJ”) must determine
whether the applicant “can make an adjustment to other
work.” 20 C.F.R. §404.1520(ax4\Xv). This
determination must be supported by substantial
evidence. See 42 US.C. $40K(g). In making the
determination, an ALJ is authorized to call a vocational
expert to testify about other work available to an
applicant. See 20 C.F.R. §$404.1566(e). These
assessments occur hundreds of thousands of times
annually.

The question presented is:

Whether a vocational expert’s testimony can
constitute substantial evidence of “other work,” 20
C.F.R. § 404.1520(a)4)X(v), available to an applicant
for social security benefits on the basis of a disability,
when the expert fails upon the applicant’s request to
provide the underlying data on which that testimony
is premised.

ii
TABLE OF CONTENTS

QUESTION PRESENTED
TABLE OF AUTHORITIES

PETITION FOR A WRIT OF CERTIORARL ........

OPINION BELOW
JURISDICTION

STATUTES AND REGULATIONS
INVOLVED

INTRODUCTION

STATEMENT OF THE CASE

A. Statutory and Regulatory
Framework

B. Factual Background

REASONS FOR GRANTING THE WRIT..............

I. THERE IS AN ACKNOWLEDGED
CONFLICT OF AUTHORITY ON THE
QUESTION PRESENTED.

A. The Seventh Circuit Requires

12

‘ij

B. The Second, Sixth, and Ninth
Circuits Do Not Require Vocational

Opinions
Available to an Applicant. 15

il. THIS CASE PRESENTS A
RECURRING, IMPORTANT ISSUE
THAT WARRANTS THIS COURT'S
REVIEW. 19

Ill. THIS CASE PRESENTS AN IDEAL
VEHICLE TO RESOLVE THIS
CONFLICT. 20

IV. THE SIXTH CIRCUIT'S DECISION
WAS INCORRECT 21

CONCLUSION 2A

Appendix A
Biestek v. Commissioner of Social Security,
880 F 3d 778 (6th Cir. 2017) la

Appendix B
Biestek v. Berryhill, Civil Case No. 16-10422,
Opinion and Order Adopting Magistrate
Judge’s Report and Recommendation (E.D.
Mich. Mar. 30, 2017) 25a

Appendix C
Biestek v. Berryhill, Civil Case No. 16-10422,
2017 WL, 1173775 (E.D. Mich. Mar. 30, 2017) ........ 35a

iv
Appendix D
In re Biestek, Office of Disability Adjudication
and Review, Decision (SSA Nov. 24, 2015)............ Tha

Appendix E
Excerpt of Hearing Transcript, /n re Biestek,

Office of Disability Adjudication and Review,
Decision (SSA July 21, 2015) ll4a

Appendix F
Excerpt of Questioning of the Vocational
Expert Excerpt from Hearing at Issue in,
Mckinnie v. Barnhart, 368 F 3d 907 (7th Cir.
2004)

120a

Vv

TABLE OF AUTHORITIES

CASES
Allen v. Califano, 613 F 2d 139 (6th Cir. 1980)......... 7
Bauzo v. Bowen, 803 ¥ 2d 917 (7th Cir. 1986) ........... 7

Bayliss v. Barnhart, 427 F.3d 1211 (9th Cir.
20065) 4, 10, 17

Brault v. Social Security Administration,
Commissioner, 683 F3d 443 (2d Cir.
2012) 4, 7, 10, 15, 16, 17

Britton v. Astrue, 5621 F 3d 799 (7th Cir, 2008) ....... 23

CIBA Corp. v. Weinberger, 412 US. 640

(1973) 22
Donahue v. Barnhart, 279 ¥ 3d 441 (7th Cir.
2002) 4, 10, 14, 21, 22

Karly v. Colvin, No. 3:14-CV-06015-DWC,

2015 WL 4231598 (W.D. Wash. July 10,

2015) 17-18
Federal Power Commiasion v. Florida Power

& Light Co., 404 U.S. 458 (1972) 22
McKinnie v. Barnhart, 368 F 3d 907 (7th Cir.

2004) 4, 10, 13, 14, 20, 21, 28
Merryflorian v. Astrue, No. 12-CV-2A93-1EG

(DHB), 2013 WL 4783069 (S.D. Cal. Sept. 6,

2013) 18

Richardson v. Perales, 402 US. 389 (1971) ....0c0000 21

vi
Welsh v. Commissioner Social Security, 662 ¥.

App’x 1065 (3d Cir. 2016) —
STATUTES
UBC. § 18956(1) .ncccccecsee-. coccscsecscsccccevsssscscossnssvecsosooees 1
42 U.S.C. § 406(b)(1)...... - 1,7, 11
AZ U.S.C. § 40K g) .cccevcveereseverenensnennnnenenens 1, 3, 6, 7, 21, 24
42 U.S.C. $423. escenesvens 7
42 U.S.C, § 423(a) 5
42 U.S.C. § A2ZB(A MAMA) meececccceereeeeee sesccsneuenuesennse 6
42 U.S.C. § 423(d (2A) noe @ 9
42 U.S.C. § 18B1(G) ...cccceccccccersocessoserececsececssesserevesreseneesees 2
42 U.S.C. § 1381a es 7
42 U.S.C. § 1382(a) — we 5
42 U.S.C, § 1382c(aX(3)A) 7 6
42 U.S.C, § 1BB2c(aB MB) ....0..eceeererenenenenenenenenenenens 6,7
OTHER AUTHORITIES

20 CPR. § 404,907 ....ccccccceeeneee 2,6
20 C.F.R. § 404.929 .. 2,6
20 C.F.R. § 404,967 6
20 C.F.R. § 404,981 — 6
20 C.F.R. § 404,1503(a) 2, 6
20 C.F.R. § 404,1503(b) 2,6
20 C.F.R. § 404,1520(a (4) sessncssnnesssoees 3, 6

20 C.PR. $ 404, 1520 (AE) ..0cececeerereeeenennne one G

vii

20 C.F .R. § 404.1520(a (4 ii) 6
20 C.F .R. § 404.1520(a (4 (iii) 7
20 C.F .R. § 404.1520(a(4)(iv) 7
20 C.F .R. § 404.1520(a(4)(v) ...... 1, 2, 3, 5, 7, 12, 17, 18
20 C.F .R. § 404.1563(d) 9
20 C.F.R. § 404.1566(e) 3
20 C.F.R. § 416.410 7
20 C.F .R. § 416.903(a) 2,6
20 C.F.R. § 416.903(b) 2,6
20 C.F.R. § 416.920(a)(4) 3, 6
20 C.F .R. § 416.920(a (4) 6
20 C.F.R. § 416.920(a)(4 (ii) 6
20 C.F .R. § 416.920(a)(4 (iii) 7
20 C.F.R. § 416.920(a)(4 iv) 7
20 C.F.R. § 416.920(a(4\(v) 3,7
20 C.F.R. § 416.963(d) 9
20 C.F .R. § 416.966(e) 3
20 C.F.R. § 416.1407 2,6
20 C.F.R. § 416.1414 2,6
20 C.F.R. § 416.1467 6
20 C.F.R. § 416.1481 6

Social Security Administration, SSA Pub. No.
13-11826, Annual Statistical Report on the
Social Security Disability Insurance
Program, 2016 (Oct. 2017),
http//www.ssa.gov/policy/docs/statcomps/
di_asr/2016/di_asr16.pdf 4, 12,19

Social Security Administration, SSI] Federal
Payment Amounts For 2018, Social
Security, http//www.ssa.gov/oact/cola/
SSLhtml (last visited Feb. 13, 2018).................. 7-8

PETITION FOR A WRIT OF CERTIORARI
Michael J. Biestek petitions for a writ of certiorari to
review the judgment of the United States Court of
Appeals for the Sixth Circuit.
OPINION BELOW

The decision of the Sixth Circuit (Pet. App. 1a) is
reported at 880 F.3d 778 (6th Cir. 2017). The decision of
the district court (Pet. App. 25a) is unreported.

JURISDICTION

The judgment of the Sixth Circuit was entered on
December 27, 2017.' This Court has jurisdiction
pursuant to 28 U.S.C. § 1254(1).

STATUTES AND REGULATIONS INVOLVED

42 U.S.C. § 405(b)(1) provides:
Evidence may be received at any hearing before
the Commissioner of Social Security even though
inadmissible under rules of evidence applicable to
court procedure.

42 U.S.C. § 405g) provides:
The findings of the Commissioner of Social
Security as to any fact, if supported by
substantial evidence, shall be conclusive.

20 C.F.R. § 404.1520(a(4 Xv) provides:
At the fifth and last step, we consider our
assessment of your residual functional capacity
and your age, education, and work experience to

' The district court had jurisdiction over this case pursuant to 42
USC. § 405(g).

2
see if you can make an adjustment to other work.
If you can make an adjustment to other work, we
will find that you are not disabled. If you cannot
make an adjustment to other work, we will find
that you are disabled.

INTRODUCTION

A person is not eligible for social security disability
benefits if the person can “make an adjustment to other
work.” 20 C.F.R. § 404.1520(a)(4\(v). This case presents
the question whether the Social Security Administration
may permissibly deny benefits based on only a
vocational expert’s testimony that “other work” exists,
when the vocational expert refuses to disclose the data
underlying that testimony. There is a well-established,
and entrenched, conflict among the circuits on this
question, and this case presents the ideal vehicle for this
Court to resolve the issue.

Applications for social security benefits on the basis
of disability are first reviewed by either an employee of
the relevant state agency or an employee of the Social
Security Administration (“SSA”)? 20 C.F.R.
$§ 404.1503(a)(b), 416.903(a){b). If an application is
denied, the applicant may request reconsideration. 20
C.F.R. §§ 404.907, 416.1407. If the application is denied
again upon reconsideration, the applicant may request
review by an administrative law judge (“ALJ”). 20
C.F.R. §§ 404.929, 416.1414. The ALJ must make factual

* This petition will use the term “social security benefits” to refer to
both Social Security Disability Income, see 42 U.S.C. § 423(a), and
Supplemental Security Income, see 42 U.S.C. § 1381(a). For the

purposes of the question presented, the distinctions between the
two programs are immaterial.

3

findings regarding an applicant’s eligibility for social
security benefits pursuant to a five-step process laid out
in 20 C.F.R. § 404.1520(a)(4) and repeated in 20 C.F.R.
§ 416.920(aX4). Each of these findings must be
supported by substantial evidence. See 42 US.C.
§ 40&(g). Under the fifth of these steps, the ALJ must
determine whether the applicant “can make an
adjustment to other work.” 20 «=C.F.R.
$§ 404.1520(aX4X(v), 416.920(aX4)(v). To make this
finding, AL.Js may rely on vocational experts who testify
regarding jobs that would be available to an applicant
given the applicant’s disability, age, education, and work
experience. 20 C.F .R. §§ 404.1566(e), 416.966(e).

Petitioner Michael Biestek applied for social security
benefits on the basis of disability in light of a severe, and
disabling, physical impairment. Pet. App. 3a. During a
hearing before an ALJ, a vocational expert testified
regarding various jobs that would have been available to
Mr. Biestek notwithstanding his disability. Pet. App.
116a-117a. When requested by Mr. Biestek, the
vocational expert declined to produce the data and
analyses underlying her conclusions, citing “the
confidentiality of her files.” Pet. App. 20a, 118a-119a.
The ALJ refused to require the expert to produce this
information, even in a redacted form. Pet. App. 20a,
118a-119a. The ALJ then denied Mr. Biestek disability
benefits for the full time-period specified in his
application, finding based on only the expert’s testimony
that Mr. Biestek could have secured certain forms of
employment for a limited period of time. Pet. App. 78a-
79a, 109a-110a.

4

Reviewing the ALJ’s findings for substantial
evidence, The Sixth Circuit affirmed the ALJ. Pet. App.
2Aa. In its decision, the court recognized that it was
ruling on a question over which there was “a divide . . .
between the Seventh Circuit and several other circuits
that have staked a position.” Pet. App. 20a. In ruling
that “substantial evidence” supported the AL.J’s finding
of other work available to Mr. Biestek, despite the
expert’s refusal to produce any data whatsoever
substantiating her conclusion, the Sixth Circuit joined
the Second and Ninth Circuits. See Pet. App. 21a-22a;
Brault v. Soc. Sec. Admin., Comm’r, F.3d 443, 450-
51 (2d Cir. 2012); Bayliss v. Barnhart, 427 F.3d 1211,
1217-18 (9th Cir. 2005). The Seventh Circuit has held
directly to the contrary: a vocational expert’s testimony
cannot constitute substantial evidence of other work
available to a social security benefits applicant if the
expert fails to produce on demand any data underlying
the expert’s conclusions. See McKinnie v. Barnhart, 368
F.3d 907, 911 (7th Cir. 2004) (per curiam); Donahue v.
Barnhart, 279 F 3d 441, 446-47 (7th Cir. 2002).

As the number of cases addressing this question
demonstrates, the issue arises frequently because the
§ 404.1520(aX4X(v) determination must be made in
hundreds of thousands of cases each year before an
applicant receives social security benefits on the basis of
a disability. See Soc. Sec. Admin., SSA Pub. No. 13-
11826, Annual Statistical Report on the Social Security
Disability Insurance Program, 2016 tbl. 65 (Oct. 2017)
(finding that from 1999 to 2015, 30-40% of all medical-
based denials of benefits, of which there are hundreds of
thousands, were based on the applicant’s ability to do
other types of work) (hereinafter “SSA Data”),

5
http//www.ssa.gov/policy/docs/statcomps/di_asr/2016/d
i_asrl6.pdf. This issue is also important, as an adverse
ruling automatically renders an applicant ineligible for
valuable government benefits. This circuit split,
therefore, frustrates the fair and uniform distribution of
federal benefits.

This case is a clean vehicle for resolving this
question. The facts are undisputed. The Sixth Circuit
squarely held as a matter of law that the vocational
expert’s testimony—absent any of the underlying data
Mr. Biestek requested—could constitute substantial
evidence of other work available to Mr. Biestek under
§ 404.1520(aX4X(v). Had Mr. Biestek’s case arisen in the
Seventh rather than the Sixth Circuit, the case would
have come out the other way. Indeed, the Sixth Circuit
expressly identified the conflict among the circuits in its
decision.

The petition for certiorari should be granted.

STATEMENT OF THE CASE

A. Statutory and Regulatory Framework

Under the Social Security Act, individuals with a
qualifying disability may receive supplemental security
income (“SSI”) if they present sufficient financial need,
42 US.C. § 1382(a), and social security disability
insurance (“SSDI”) if they have worked for a designated
period of time and paid sufficient Social Security taxes
on their income, 42 U.S.C. § 423(a).

To be eligible for either form of social security
benefits on the basis of disability, the applicant must be
unable “to engage in any substantial gainful activity by
reason of any medically determinable physical or mental

6
impairment” that is expected to result in death or last
for at least twelve continuous months. 42 U.S.C.
$8 423(d)( 1A), 138&2e(aX(3)( A). This requirement
includes an inability to perform both the applicant's
prior work and any work that exists in significant
numbers nationally or in the applicant’s region, taking
into consideration the applicant’s age, education, and
work experience. 42 USC. $$ 423(d\2\A),
1382e(aX3)(B). Initial responsibility for determining
eligibility rests with either the relevant state agency
authorized to make disability determinations or the
Social Security Administration. 2 «C.F.R.
$§ 404.1503(a)(b), 416.903(a){b). An applicant who
receives an adverse determination may appeal the
determination by, first, petitioning for reconsideration,
20 C.F.R. $§ 404.907, 416.1407; second, seeking a hearing
before an administrative law judge, 20 C.F.R.
$$ 404.929, 416.1414; third, requesting review by the
SSA Appeals Council, 20 C.F.R. $$ 404.967, 416.1467;

and fourth, seeking judicial review, see 42 U.S.C.
§ 405(g); 20 C.F.R. §§ 404.981, 416.1481.

Pursuant to 20 C.F.R. § 404.1520(a)(4) for SSDI and

20 C.F.R. §416.920(a)(4) for SSI, an individual must
satisfy a “five-step sequential evaluation process” to
qualify for social security benefits on the basis of a
disability. First, the applicant must not be engaged in
any substantial gainful activity. 20 CFR.
$$ 404.1520(a)4\(i), 416.920(a 4) i). Second, the
applicant must have a severe medically determinable
or mental impairment. 20 C.F.R.

$$ 404.1520(a4Xii), 416.920(aX4\ii). Third, if the
applicant’s impairments meet or equal one of the
impairments listed in Appendix | of the regulation, the

7
applicant is disabled and eligible for benefits. 20 C.F .R.
$8 404.1520(a)(4 \iii), 416.920(a)(4\ iii). Lf the applicant's
impairments do not satisfy the third step, the applicant

$$ 404.1520(aX4)iv), 416.920(a)4Xiv). And, fifth, the
applicant must be unable, based on the applicant’s
impairments, age, education, and work experience, to
adjust to another readily available profession. 20 C.F.R.
$$ 404.1520(aX4Xv), 416.920(aX4Xv); see 42 USC.
$8 423(d(2(A), 1382c(aX3XB) (defining “work” for
disability determinations as only “work which exists in
significant numbers either in the region where such
individual lives or in several regions in the country”).

The burden of proof lies with the applicant for the
first four steps, but the burden shifis to the
Commissioner for the fifth. See Brault, 683 F 3d at 445;
Bauzo v. Bowen, 803 F 2d 917, 923 (7th Cir. 1986); Allen
v. Califano, 613 F 2d 139, 145 (6th Cir. 1980). While the
ALJ may consider evidence otherwise inadmissible in a
court of law, see 42 U.S.C. § 405(b)(1), all of the ALJ's
factual findings must be supported by substantial
evidence regardless of admissibility, 42 U.S.C. § 405(g).

If an applicant satisfies the five steps, then the
applicant is disabled and may be eligible for SSDI under
42 U.S.C. § 423 and for SSI under 42 U.S.C. § 1381a"

* This year, based on cost-of-living adjustments, SSI is $750 per
month, minus certain amounts of the individual's income, 20 C.F .R.
$ 416410. Soe. See. Admin., SS/ Federal Payment Amounts For
2018, http//www sea gov/oact/cola/SSI htm! (last visited Feb. 13,

Failure on any of these steps, except for step three,
renders the applicant ineligible for social security
benefits on the basis of disability.

B. Factual Background

Petitioner Michael Biestek worked for most of life as
a carpenter and laborer, building scaffolding on
construction sites. Pet. App. 3a, 109a. In June 2005 he
became unemployed, and has remained unemployed
since because of lower back pain caused by a
degenerative disc disease, depression, and Hepatitis C.
Pet. App. 3a.

In March 2010, Mr. Bietsek applied for social security
benefits, alleging that his disability commenced on
October 28, 2009. Pet. App. 3a. His application was
denied by the SSA and by an ALJ that reviewed his
application. Pet. App. 3a. The Appeals Council denied
review. Pet. App. 3a. Mr. Biestek sought district court
review of the AL.J’s decision. Pet. App. 3a. The district
court vacated and remanded the denial of Mr. Biestek’s
application, finding the ALJ had failed to procure
necessary medical opinions and had made an improper
assumption regarding the vocational expert’s testimony.
Pet. App. 3a.

On remand, the AL.J denied Mr. Biestek’s application
for benefits from October 28, 2009, his alleged onset date,
to May[J 2013, finding that Mr. Biestek had “the residual

functional capacity to perform sedentary work” with
several limitations, and that such work was readily

2018). The amount of an individual's SSDI benefit is based on the
amount of income upon which the individual had paid Social
Security taxes.

9
available. Pet. App. 89a-90a, 109a-110a. The ALJ found,
however, that Mr. Biestek was eligible for disability
benefits beginning on May [J 2013, when his advanced
age seriously impacted his ability to adjust to other
work. Pet. App. 112a; see 20 C.F.R. $§ 404.1563(d),
416.963(d). In determining that Mr. Biestek could have
found alternate employment from October 28, 2009, to
May @ 2013, the ALJ relied solely on the testimony of a
v expert. Pet. App. llla-112a. The expert
opined that Mr. Biestek “would have been able to
perform the requirements of representative sedentary
unskilled occupations,” such as a bench assembler, with
240,000 jobs nationally and 6,000 jobs in Southeast
Michigan, and a sorter, with 120,000 jobs nationally and
1,500 jobs in Southeast Michigan. Pet. App. 1 11a, 116a.
The expert further opined that such jobs were available
to Mr. Biestek despite his additional limitations “based
on her knowledge and experience of the job market in
Southeastern Michigan.” Pet. App. 11la; see also Pet.
App. 117a (testifying that her estimate of jobs available
to Mr. Biestek despite his additional severe limitations

“is based on [her] professional experience”).

Before the ALJ, Mr. Biestek questioned the accuracy
of the vocational expert's opinion, and requested that the
expert produce the job analyses and labor market
surveys she had relied upon to reach her conclusions on
each job’s requirements and availability. Pet. App. 117a-
119a. The vocational expert refused to provide this data
in any form, citing the confidentiality of her files. Pet.
App. 118-119a. Instead, she claimed her opinion could be
relied upon based solely on her “professional
experience” and the Department of Labor’s Dictionary
of Occupational Titles, which does not address any of

10

Mr. Biestek’s additional limitations and which defines
various types of jobs but provides no data on their
current availability in regions throughout the country.
See Pet. App. 117a. The ALJ refused to require the
expert to provide the relied-upon data, even in redacted
form, Pet. App. 118a-119a, and found that significant
numbers of positions were available to Mr. Biestek from
October 28, 2009, to May [J 2013, based on the expert's
testimony alone. Pet. App. 109a-110a.

Reviewing the AL.J’s findings for substantial
evidence, the district court affirmed. Pet. App. 33a. The
court found, as a matter of law, that the ALJ was
entitled to rely solely on the vocational expert's
testimony to find substantial evidence of jobs available
to Mr. Biestek, notwithstanding the expert’s refusal to
provide any of the data underlying that testimony. Pet.
App. 28a-30a.

The Sixth Circuit affirmed, recognizing that it was
ruling on a question over which there was “a divide ...
between the Seventh Circuit and several other circuits
that have staked a position.” Pet. App. 20a. Quoting the
Second Circuit’s observation that the Seventh Circuit's
rule “has not been a popular export,” Pet. App. 2la
(quoting Brault, 683 F.3d at 449), the Sixth Circuit
joined the Second and Ninth Circuits, holding that there
exists no “oblig{ation for] vocational experts to provide
the data and reasoning used in support of their
conclusions upon request.” Pet. App. 21a. See Brault,
683 F.3d at 449; Bayliss, 427 F.3d at 1217-18. But see
Donahue, 279 ¥ 3d at 446; McKinnie, 368 F 3d at 910-11.

The Sixth Circuit found that in 42 U.S.C. § 405(b)(1),
“Congress specifically exempted Social Security

il

disability proceedings from the strictures of the Federal
Rules of Evidence, allowing ALJs to consider a broader
range of potentially relevant information than would be
admissible in an ordinary court of law.” Pet App. 21a.
See 42 U.S.C. $ 405(b\(1) (“Evidence may be received at
any hearing before the Commissioner of Social Security
even though inadmissible under rules of evidence
applicable to court procedure.”). Yet, the Court held,
requiring a vocational expert to produce the data
underlying his or her opinion would “effectively import
a key provision of the Federal Rules of Evidence into
Social Security proceedings.” Pet. App. 21a. The Sixth
Circuit also rejected the Seventh Circuit’s rule that
vocational experts must produce the data supporting
their conclusions because the Sixth Circuit found “little
clarity on how to apply the Donahue and McKinnie
standards.” Pet. App. 22a.

The Court observed that while “vocational expert
testimony that is ‘conjured out of whole cloth’ cannot be
considered substantial evidence,” here Mr. Biestek
“aired his concerns to the ALJ who accepted the
vocational expert’s testimony over his objections.” Pet.
App. 22a (quoting Donahue, 279 F 3d at 446). The Sixth
Circuit thus concluded “the AL.J’s acceptance of [the
vocational expert’s] testimony cannot be said to have
been improper.” Pet. App. 23a (alteration in original)
(quoting Sias v. Sec'y of Health & Hwman Servs., 861
F.2d 475, 481 (6th Cir. 1988)).

REASONS FOR GRANTING THE WRIT

This case presents the ideal vehicle for this Court to
resolve an acknowledged and entrenched conflict among
the circuits on an important and frequently recurring

12

legal issue that arises in hundreds of thousands of social
security AL.J proceedings annually. See SSA Data at tbl.
63. If Mr. Biestek’s case had arisen in the Seventh
Circuit, the vocational expert’s testimony would not
have constituted substantial evidence of the “other
work,” 20 C.F.R. § 404.1520(aX4\(v), available to Mr.
Biestek, once the vocational expert refused upon
request to provide any data or analysis supporting her
conclusions. Because his case arose in the Sixth
Circuit—as it would were it to have arisen in the Second
or Ninth Circuits—the expert’s challenged testimony
alone did constitute substantial evidence.

This circuit conflict has existed for over fifteen years,
and further percolation is unnecessary. There is no
justification for the current geographic discrepancy in
how ALJs assess vocational expert testimony in the
hundreds of thousands of social security benefits
proceedings in which vocational experts testify annually,
and this Court’s review is warranted.

The petition for certiorari should be granted.

I, THERE IS AN ACKNOWLEDGED CONFLICT
OF AUTHORITY ON THE QUESTION
PRESENTED.

As the Sixth Circuit acknowledged in ruling against
Mr. Biestek, its decision was squarely in conflict with
rulings of the Seventh Circuit and in agreement with
decisions from the Second and Ninth Circuits. Pet. App.
20a.

13
A. The Seventh Circuit Requires Vocational
Experts to Produce Upon Request the Data
Underlying Their Opinions Regarding “Other

In McKinnie v. Barnhart, 368 F.3d 907, 911 (7th Cir.
2004), a vocational expert testified that notwithstanding
an applicant’s disability, the applicant could perform
various specific jobs, several thousand of which existed
in the applicant’s region. /d. at 909. When challenged by
the applicant’s lawyer to “show us how you arrived at
[your] figure[s],” the expert stated that she used her
“personal labor market surveys” to extrapolate the
numbers from other data. Pet. App. 120a. The
applicant’s lawyer asked for the personal labor market
surveys to be included in the record. Pet. App. 120a.
Despite the expert’s willingness, the ALJ found the
expert need not supplement the record with the data and
references she had relied upon in reaching her
conclusions unless the applicant compensated the expert
for her time. See Pet. App. 120a-12la; McKinnie, 368
F.3d at 909. The record was never supplemented, and
based on the expert’s unsupported testimony the ALJ
found substantial evidence of other work available to the
applicant. McKinnie, 368 F 3d at 909.

In vacating the ALJ’s decision, the Seventh Circuit
observed, “the standards by which an expert’s reliability
is measured may be less stringent at an administrative
hearing than under the Federal Rules of Evidence.” /d.
at 910. Nonetheless, “because an AL.J’s findings must be
supported by substantial evidence, an ALJ may depend
upon expert testimony only if the testimony is reliable.”
Id. Thus, the Seventh Circuit held “[a] vocational expert

14

is ‘free to give a bottom line,’ but the data and reasoning
underlying that bottom line must be ‘available on
demand’ if the claimant challenges the foundation of the
vocational expert’s opinions.” /d. at 911 (quoting
Donahue, 279 F.3d at 446) (emphasis added).
Recognizing “{i}t is the Commissioner’s burden at Step
5 to establish the existence of a significant number of
jobs that the claimant can perform,” the court found no
reason an applicant “should pay a vocational expert to do
the preparatory research that she should have
completed prior to testifying.” Jd. “The data and
reasoning underlying a vocational expert’s opinions are
not ‘available on demand,” as the court found they must
be, “if the [applicant] must pay for them.” Id. Because
the expert had not made available the data underlying
her conclusions, the Seventh Circuit found the ALJ
could not rely upon those conclusions as substantial
evidence on the step five inquiry and vacated and
remanded the AL.J’s decision. /d.

In so ruling, the Seventh Circuit reaffirmed the rule
of its prior decision in Donahue, 279 ¥F 3d at 446. There,
Judge Easterbrook writing for the court observed
“(e}vidence is not ‘substantial’ if vital testimony has been
conjured out of whole cloth.” Donahue, 279 F 3d at 446.
Thus, “an expert is free to give a bottom line, provided
that the underlying data and reasoning are available on
demand.” Id.

* In Donahue, the Seventh Circuit affirmed the ALJ’s denial of
supplemental security income because the applicant had not
challenged the vocational expert’s conclusions, or requested the
data underlying them before the ALJ. 279 F.3d at 446-47.

15
B. The Second, Sixth, and Ninth Circuits Do Not
Require Vocational Experts to Produce Upon
Request the Data Underlying Their Opinions
Regarding “Other Work” Available to an
Applicant.

In the decision below, the Sixth Circuit held that
substantial evidence supported the ALJ finding that
other jobs were available to Mr. Biestek, based solely on
a vocational expert’s unsupported testimony and
notwithstanding the expert’s failure to provide the
data—namely, personally conducted labor market
surveys and job analyses—underlying that testimony
when requested. Pet. App. 20a-22a, 117a-119a. That
decision squarely conflicts with the rule in the Seventh
Circuit, and is consistent with the rule in Second and
Ninth Circuits.

In Brault v. Social Security Administration,
Commissioner, 683 F 3d 443 (2d Cir. 2012), an applicant
challenged a vocational expert’s estimate of the number
of jobs available to the applicant notwithstanding his
disability. In providing this estimate, the expert had
relied upon one source—the Labor Department’s
Dictionary of Occupational Titles (““DOT”)—1o identify
potential jobs available to the applicant, but on a
different source—The Occupational Employment
Quarterly [1—to identify the number of jobs available to
the applicant in Vermont, where he lived. /d. at 446-47.
The applicant argued that these two sources of data
contained different job definitions, and thus that the
expert could not opine on available jobs by merging the
two. Id. The expert did not provide any data or analysis
underlying his conclusions, and instead claimed that he

16

counted only “jobs ... that I know exist.” Jd. at 447
(quotation marks omitted). The ALJ did not respond to
the applicant’s objections, did not demand the
conclusions, and instead issued a decision relying on the
vocational expert’s testimony and agreeing that the
positions the expert had identified were available in the
numbers the expert had given. /d.

On appeal to the Second Circuit, the applicant argued
that “once [the vocational expert’s] testimony had been
challenged, the ALJ was required: ... to grant an
opportunity to inspect and challenge the proffered
evidence[.[” Jd. at 448. Recognizing that this was an
issue over which there exists “a split among our sister
circuits,” the court criticized the Seventh Circuit for
“acknowledg{ing] in Donahue that ALJs are not bound
by the Rules of Evidence, but then turn[ing] around and
requirjing] ALJs to hew so closely to Dauwbert’s
principles.” Jd. at 449. Citing its own precedent, the
Court also noted “the marked absence of any ‘applicable
regulation or decision of this Court requiring a
vocational expert to identify with greater specificity the
source of his figures or provide supporting
documentation.” Id. at 450 (quoting Galiotti v. Astrue,
266 F. App’x 66 (2d Cir. 2008) (summary order)).

The Second Circuit found the ALJ had considered
the applicant’s challenge to the vocational expert’s
testimony because the applicant’s counsel had been
afforded the opportunity on cross-examination to
“explore the _ limitations of the...mapping

methodology” the expert must have used to reach a
conclusion despite using two inconsistent sources. /d. at

17

451. The Second Circuit clarified that it was “not
hold[ing} that an AL.J never need question reliability.”
Id. at 450. Nonetheless, the Second Circuit held the ALJ
could rely on only the vocational expert’s testimony in
finding substantial evidence of other work available to
the applicant, even when the expert produced none of
the data or analyses underlying his conclusions. /d. at
450-51.

The Sixth Circuit’s decision is also consistent with
the Ninth Circuit’s decision in Bayliss v. Barnhart, 427
F.3d 1211 (9th Cir. 2005), to reject the Seventh Circuit’s
rule. In Bayliss, an applicant challenged an AL.J’s
reliance on a vocational expert’s testimony regarding
the relevant number of other jobs that existed in the
national economy notwithstanding the applicant’s
disability. /d. at 1218. In rejecting this challenge, the
Ninth Circuit held “[a vocational expert’s] recognized
expertise provides the necessary foundation for his or
her testimony. Thus, no additional foundation is
required.” Jd. Unlike the Seventh Circuit, therefore,
which does not permit an ALJ to rely upon a vocational
expert’s unsupported testimony once that testimony is
challenged and the data underlying it is requested, in the
Ninth Circuit a vocational expert’s testimony alone
constitutes substantial evidence of the
§ 404.1520(a(4)(v) factor.®

° Indeed, some district courts in the Ninth Circuit have gone even
further and read Bayliss as holding that a vocational expert’s
testimony is per se reliable because of the expert’s recognized
expertise, even in the face of contrary evidence. See Early v.
Colvin, No. 3:14-CV-06015-DWC, 2015 WL 4231598, at *8 (W_D.

18

Finally, in an unpublished opinion, the Third Circuit
indicated that it, too, was likely to reject the Seventh
Circuit’s rule. In Welsh v. Commissioner Social
Security, 662 F. App’x 105 (3d Cir. 2016), the Third
Circuit noted that it had not yet adopted the Donahue
rule “with good reason.” Id. at 109-10. Yet, because the
petitioner failed to question the basis of the vocational
expert’s testimony, id. at 109, the Court never decided
whether a vocational expert must provide evidence if
questioned by opposing counsel or the ALJ.

Had Mr. Biestek’s case arisen in the Seventh Circuit,
the ALJ would not have been permitted to find
substantial evidence of other work available to Mr.
Biestek based solely on the vocational expert’s

Wash. July 10, 2015) (finding under Bayliss that even assuming
applicant did not waive challenge, AL.J was entitled to rely solely on
vocational expert’s testimony despite applicant’s contradicting

necessary
for his or her testimony” (quoting Bayliss, 427 F 3d at 1217-18));
Merryflorian v. Astrue, No. 12-CV-2493-IEG (DHB), 2013 WL
4783069, at *6 (S.D. Cal. Sept. 6, 2013) (holding, and summarizing
unreported cases finding, that an applicant cannot challenge the
validity of a vocational expert’s unsupported testimony on number
of available jobs, even with contradicting evidence, because a
vocational expert’s “recognized expertise provides the necessary
foundation for his or her testimony” (quoting Bayliss, 427 F 3d at
1217-18). To the extent Bayliss holds that a vocational expert’s
testimony is per se reliable, no matter what evidence an applicant
provides in response, the Ninth Circuit has taken an even more
permissive approach as to what constitutes substantial evidence of
other work available to an applicant pursuant to 20 C.F_R.
$ 404.1520(a(4)(v). This only further demonstrates the necessity of
this Court’s review.

19
unsupported testimony once Mr. Biestek requested the
data underlying that testimony. Because Mr. Biestek’s
case arose in the Sixth Circuit, the ALJ made exactly
that finding. There is a clear and entrenched conflict of
authority on this issue that has existed for over fifteen
years and further percolation is unnecessary.

II. THIS CASE PRESENTS A RECURRING,
IMPORTANT ISSUE THAT WARRANTS THIS
COURT'S REVIEW.

More than two million individuals apply for
supplemental security income on the basis of disability
annually. SSA Data at tbl. 60. Each of these applications
must go through the same five-step analysis for
eligibility and as noted above, failure on any step except
the third renders the applicant ineligible for benefits.

If an applicant reaches the fifth step, disability
benefits are denied if the Commissioner of Social
Security can show that other work would be available to
the applicant notwithstanding the applicant’s disability,
and thus the benefits eligibility rises or falls based on
this inquiry. Although exact numbers are unavailable,
in at least hundreds of thousands of these proceedings
annually, vocational experts provide testimony on the
availability of other jobs. And, in the three circuits
identified above, testimony bereft of any underlying
data, even when challenged by an applicant, can be
sufficient to satisfy the government’s burden and result
in a denial of benefits.

Resolution of this conflict is important because there
is no logical justification—and significant unfairness—in
the current heterogeneity among the circuits on the
standard for accepting the testimony of vocational

20
experts. Moreover, as discussed below, the majority
rule is wrong and can, as in Mr. Biestek’s case, result in
the denial of vitally needed benefits in many situations
where an expert’s testimony regarding other jobs
available to an applicant is completely untested, and thus
potentially entirely inaccurate.

Ill. THIS CASE PRESENTS AN IDEAL
VEHICLE TO RESOLVE THIS CONFLICT.

This case presents a strong vehicle for this Court to
review the circuit split. The facts are undisputed, and
the Sixth Circuit squarely ruled on the question
presented. That ruling was determinative of Mr.
Biestek’s case and in its ruling the Sixth Circuit
explicitly considered and rejected the contrary rule of
the Seventh Circuit that Mr. Biestek had proposed.

Moreover, this case is a particularly strong vehicle
because the facts precisely frame the question presented
and highlight the circuit split. Before the ALJ, Mr.
Biestek specifically requested the personal labor market
surveys underlying the vocational expert's opinion, and
the expert acknowledged the existence of that data but
refused to provide it. Pet. App. 118a-119a. The Sixth
Cireuit held that the AL.J’s reliance on only that
testimony provided substantial evidence for the ALJ's
finding. Pet. App. 22a. Similarly, in McKinnie, the
applicant requested, and the vocational expert failed to
produce, the labor market surveys upon which she
‘vlied. Pet. App. 120a-12la. In contrast to the Sixth
Circuit, the Seventh Circuit held that the ALJ’s reliance
on only that testimony failed to provide substantial
evidence for his finding. McKinnie, 368 F 3d at 911.
Because many social security proceedings— including

21
before AL.Js—include uncounseled applicants, the
record below is rarely as clean as it is in this case, and
requests for the data underlying a vocational expert's
conclusions are not usually made with the precision with
which they were made here.

Thus, this record, and the courts’ decisions based
upon it, present the ideal vehicle for review of this

question.

IV. THE SIXTH CIRCUIT'S DECISION WAS
INCORRECT.

Finally, the Sixth Circuit’s decision merits review
because it is wrong. As the Seventh Circuit recognized,
the fact that the Federal Rules of Evidence are

in social security benefits proceedings is
nalienh becom Ghani etiin atenaiadiien
that apply, an AL.J’s decision must be supported by
“substantial evidence” to withstand judicial review. 42
U.S.C. § 40&(g). See Donahue, 279 F 3d at 446 (“{Thhe
idea that experts should use reliable methods does not
depend upon Rule 702 alone, and it plays a role in the
administrative process because every decision must be
supported by substantial evidence.”). The substantial
evidence standard requires “more than a mere scintilla.
It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 US. 389, 401 (1971) (quoting
Consolidated Edison Co. v. NLRB, 305 US. 197, 229
(1988)). And, as the Seventh Circuit stressed, “because
an AL.J’s findings must be supported by substantial
evidence, an ALJ may depend upon expert testimony
only if the testimony is reliable.” McKinnie, 368 F 3d at
910. Evidence regarding the number of jobs available to

22
an applicant cannot be reliable, and therefore cannot be
substantial, if it “has been conjured out of whole cloth,”
Donahue, 279 F 3d at 446, or if it is not correctly derived
from statistical data.

Yet, under the rule in the Sixth, Second, and Ninth
Circuits a vocational expert can opine—without
providing any supporting data—on the number of jobs
available to a disability applicant. And that unsupported
testimony alone can constitute “substantial evidence” to
satisfy the government’s burden to prove that other jobs
are available to the applicant and thus that social
security benefits on the basis of a disability need not be
granted.

There is virtually no other area of the law where an
expert’s conclusions regarding data constitute
“substantial evidence” of a fact when an opposing party
challenges the accuracy of those conclusions but the
expert refuses to supply—or cannot supply—any
underlying data. Further, an individual’s opinion based
on her expertise alone, absent any empirical data
whatsoever, does not constitute “substantial evidence”
of a fact in other administrative contexts. See, ¢..,
CIBA Corp. v. Weinberger, 412 US. 640, 642 (1973)
(requiring “adequate and well-controlled investigations”
before the FDA can, based on substantial evidence,
determine a drug’s safety (quotation marks omitted));
Fed. Power Comm'n v. Fla. Power & Light Co., 404 U 3S.
453, 464 (1972) (holding that “well-reasoned expert
testimony—based on what is known and uncontradicted
[sic] by empirical evidence” may be substantial
evidence). Yet, the majority rule places social security
benefits proceedings separate and apart in this respect.

23

Moreover, this rule is not only unfair; it is also
irrational. As the Seventh Circuit observed,
“(plresumably a vocational expert establishes the
foundation for her opinions,” and the underlying data
constitutes “the preparatory research that she should
have completed prior to testifying.” McKinnie, 368 F 3d
at 911. In cases where that data actually exists—as the
expert in Mr. Biestek’s case claimed it did—there is
simply no justification (nor do the courts adopting the
majority rule provide one) for denying the applicant
access to that data at least in a redacted form or in an in
camera review, if confidentiality concerns exist. If in
fact no such data exists to justify the expert's
conclusions, then it is hard indeed to see how the
expert’s unmoored conclusions on jobs that are available
to an applicant could constitute “substantial evidence”
necessary to satisfy the government’s burden on that
point. Adopting the Seventh Circuit’s rule that an
expert must provide the data underlying her
conclusions—even in redacted form—would impose a
minimal burden on the expert or the ALJ, but would
allow applicants to probe and challenge the expert’s
conclusions.

Contrary to the Sixth Circuit’s characterization, the
Seventh Circuit’s Donahue rule does not require a
Daubert-like hearing for every vocational expert's
testimony. It merely asks that, if challenged, the
vocational expert make available the data underlying
the expert’s opinion. See, e.g., Britton v. Astrue, 521 F 3d
799, 802-04 (7th Cir. 2008) (finding that substantial
evidence supported AL.J’s decision, where vocational
expert offered upon request to provide the pages of data
she relied upon and counsel instead insisted on the

2A
whole, voluminous publication). This interpretation of
42 U.S.C. § 405(g)’s substantial evidence standard gives

ALJs the flexibility Congress intended when exempting
social] security adjudications from the Federal Rules of

Evidence, while ensuring that AL.Js’ decisions—and the
expert conclusions upon which they rely—are supported
by substantial evidence. The Sixth Circuit’s decision to

the contrary was wrongly decided.
CONCLUSION
The petition for a writ of certiorari should be

granted.

Respectfully submitted,

FREDERICK J. DALEY, JR. ISHAN K. BHABHA
MEREDITH MARCUS Counsel of Record
DALEY DISABILITY LAW, NATACHA Y. LAM
PC JENNER & BLOcK LLP
601 W. Randolph Street, 1099 New York Ave., NW,

o 6066 | Ww ~~ DC 20001
(312) 561-3030 (oun est oad7

February 21, 2018

la
Appendix A

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Michael J. Biestek,

Plaintiff-Appellant,
v. No. 17-1459
Commissioner of Social Security,
Defendant-Appellee.

Appeal from the United States District Court
For the Eastern District of Michigan at Flint.
No. 4:16-ev-10422 — Linda V. Parker, District Judge.
Argued: October 6, 2017

Decided and Filed: December 27, 2017

Before: CLAY, COOK, and WHITE, Circuit Judges.

2a
COUNSEL

ARGUED: Meredith FE. Marcus, DALEY
DISABILITY LAW, P.C., Chicago, Illinois, for
Appellant. Michael L. Henry, SOCIAL SECURITY
ADMINISTRATION, Boston, Massachusetts, for
Appellee. ON BRIEF: Meredith E. Marcus, Frederick
J. Daley, Jr. DALEY DISABILITY LAW, P.C.,
Chicago, Illinois, for Appellant. Michael L. Henry,
SOCIAL SECURITY ADMINISTRATION, Boston,
Massachusetts, for Appellee.

OPINION

COOK, Circuit Judge. Plaintiff-A ppellant
Michael J. Biestek (“Biestek”) alleges that he became
disabled on October 28, 2009, for purposes of receiving
Disability Insurance Benefits and Supplemental
Security Income under the Social Security Act. An
Administrative Law Judge (“ALJ”) issued a partially
favorable decision finding Biestek disabled beginning
May [§ 2013, some three-and-a-half years short of the
time he claimed.

Biestek sought judicial review of the AL.J’s
finding of non-disability for the period between October
28, 2009, and May 2013. The district court rejected his
claims. We AFFIRM.

3a
I. BACKGROUND

Biestek, fifty-four, worked for most of his life as a
carpenter and a laborer in various construction-related
roles. His work frequently entailed transporting
scaffolding, panels, and other construction materials
around work sites. He completed at least twelve years
of education, plus one year of college, and received
additional vocational training as a bricklayer and
carpenter. He stopped working in June 2005, allegedly
due to degenerative disc disease, Hepatitis C, and
depression.

Biestek applied for Supplemental Security
Income and Disability Insurance Benefits in March 2010,
alleging a disability onset date of October 28, 2009. The
Social Security Administration (“SSA”) initially denied
this application in August 2010. Biestek requested a
hearing before an ALJ, the ALJ denied Biestek’s
application, and the Social Security Administration
Appeals Council denied review. Biestek timely appealed
to the district court. That court adopted a magistrate
judge’s report and recommendation and remanded the
case to the SSA because the ALJ had not obtained
necessary medical-expert testimony and did not pose a
sufficiently specific hypothetical to the vocational
expert.

Following a second hearing and additional opinion
gathering, the ALJ issued a partially favorable decision
ing Biestek disabled starting on his fiftieth birthday
(May §@ 2013)—the point at which the Agency deems an
applicant “closely approaching advanced age” and thus
presumptively disabled pursuant to 20 C.F.R. Pt. 404,
Subpt. P, App. 2, § 201.14; see also 20 C.F.R.

4a

§ 404.1563(d) (defining persons “closely approaching
advanced age” as between ages fifty and fifty-four). The
ALJ found that Biestek was “not disabled” before May
§ 2013, however.

Biestek again appealed to the district court. This
time, though, the magistrate judge’s report and
recommendation found that the ALJ’s decision should be
affirmed in full. Rejecting Biestek’s objections, the
district court then adopted the report and
recommendation. This timely appeal followed.

Il ANALYSIS

Biestek briefs five issues, but because he
forfeited one by failing to timely raise it before the
district court, just four are properly before us.' We will
affirm the SSA’s conclusions unless the ALJ applied
incorrect legal standards or her findings were not
supported by substantial evidence in the record. Wright-
Hines v. Comm’r of Soc. Sec., 597 F.3d 392, 395 (6th Cir.
2010). Substantial evidence supports a decision if “such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion” backs it up.
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consol. Edison Co. of N.Y. v. N.L.R.B., 305 U.S. 197, 229
(1938)). Thus, a decision supported by substantial

' Biestek also argues that the ALJ erred by not accounting for
alleged moderate limitations in his concentration, persistence, or
pace. But because Biestek failed to address this issue in his
objections to the magistrate judge’s report and recommendation,
we consider it forfeited on appeal. Willis v. Sullivan, 931 F 2d 390,
401 (6th Cir. 1991).

5a

evidence must stand, even if we might decide the
question differently based on the same evidence.
Wright-Hines, 597 F.3d at 395. It is not our role to “try
the case de novo, nor resolve conflicts in evidence, nor
decide questions of credibility.” Walters v. Comm’r of
Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997) (quoting
Garner v. Heckler, T45 F 2d 383, 387 (6th Cir. 1984)).

A. Substantial Evidence Supports the AL.J’s

Finding that Biestek’s Medical Condition Did

Not “Medically Equal” the Listing

Biestek contends the ALJ incorrectly found that
he did not meet or medically equal the back-pain-related
impairment listed at 20 C.F.R. Pt. 404, Subpt. P, App. 1,
Pt. Al, § 1.04(A).” The impairment must last for at least
twelve months to meet the terms of the listing. Jd. at
§ 1.00(B\(2\a). The ALJ determined Biestek did not
meet or medically equal the listed impairment because
Biestek “lack[ed] the requisite motor and sensory
deficits, and there [was] no evidence of spinal
arachnoiditis or spinal stenosis resulting in
pseudoclaudication.” The ALJ relied significantly on
agency-appointed expert Dr. Frank L. Barnes’s opinion

* This listing, for “disorders of the spine,” requires (in relevant part)
“lelvidence of nerve root compression characterized by neuro-
anatomic distribution of pain, limitation of motion of the spine,
motor loss (atrophy with associated muscle weakness or muscle

involvement of the lower back, positive straight-leg raising test
(sitting and supine).” 20 C.F.R. Pt. 404, Subpt. P, App. 1, Pt. Al,
§ 1.04(A).

6a

that Biestek’s physical condition neither met nor
equaled a medical listing while assigning minimal weight
to the opinions of Biestek’s retained expert, Dr.
Alexander J. Ghanayem.

Biestek claims that he “medically equaled” the
listing because he displayed all the required criteria at
one point or another during the relevant period, even if
not concurrently or consistently over twelve months. He
also argues that Dr. Ghanayem offered analysis and
explanations superior to the allegedly flawed testimony
of Dr. Barnes, so that reliance on Barnes’s testimony
cannot constitute “substantial evidence” in support of
the AL.J’s opinion.

1. The ALJ Reasonably Found Biestek Did
Not “Medically Equal” the Listing

Biestek argues that “medically equaling” the
listing does not require all symptoms to be present
consistently for a twelve-month period, and that to
impose such a requirement would erase the distinction
between “meeting” and “medically equaling” a listing.
He maintains that displaying different deficits at
different times over the course of twelve months is
enough to satisfy the duration requirement.

As the Commissioner points out, however,
medical equivalency is not a refuge for claimants who
show only intermittent signs of impairment. The
Commissioner's own regulation makes clear that
equivalency exists where a claimant’s impairment “is at
least equal in severity and duration to the criteria of any
listed impairment.” 20 C.F.R. § 404.1526(a) (emphasis
added); see also Kidd v. Colvin, No. CV 115-207, 2017

7a

WL 914061, at *4 (S.D. Ga. Feb. 2, 2017) (magistrate’s
report and recommendation) (finding a failure to meet
the duration requirement where the claimant’s back pain
was only demonstrated by “a handful of abnormal
findings scattered throughout the record”), adopted in
full sub nom. Kidd v. Berryhill, No. CV 115-207, 2017
WL 901896, at *1 (S.D. Ga. Mar. 7, 2017). Medical
equivalency does not relieve claimants of the need to
demonstrate the long-term nature of an impairment.
The Commissioner’s regulation allows for variation in
the number, type, or severity of the claimant’s
conditions, so long as the claimant’s overall impairment
is “at least of equal medical significance” to a listed
impairment. 20 C.F'.R. § 404.1526(b\ii). The regulations
make no provision, however, for claimants whose
condition is reasonably found to be sporadic or
intermittent.

2. The ALJ Reasonably Relied on Dr. Barnes’s

Testimony

Dr. Barnes noted the absence of positive straight
leg-raising’ on most examinations, and that numbness,
reflex change, and atrophy were not consistently
present over a twelve-month period. In Barnes’s
opinion, Biestek did not meet or equal any listing.

* A straight-leg raising test (also called a Lasegue test) evaluates a
patient’s lower back pain. The patient lies on his back and his care
provider raises his leg upward, keeping the knee straight. If the
patient experiences pain, the test is positive (an abnormal result).
See 2 Dan J. Tennenhouse, Attorneys Medical Deskbook § 18:4 (4th
ed. 2017).

8a

Furthermore, the ALJ noted that MRI images in the
record show “only mild-to-moderate degenerative
changes with no more than mild stenosis.”

Biestek’s expert, Dr. Ghanayem, assessed the
evidence differently, concluding that Biestek more than
met or medically equaled the terms of the listing. The
ALJ gave “little weight” to Dr. Ghanayem’s opinion,
however, due to _ inconsistencies between Dr.
Ghanayem’s assessments and other objective medical
evidence in the record. Dr. Ghanayem’s opinion of
Biestek’s condition is in tension with the findings of
multiple radiologists interpreting multiple MRIs over
several years.

Additionally, we note other evidence showing
Biestek had, at best, inconsistent back issues during the
period he was under the care of treating physician Dr.
Howard Wright. Some appointment notes do not
reference back pain, only reporting Biestek as having
“normal gait and station,” while others only a short time
later mention some pain.

Dr. Ghanayem also attempted to explain the
inconsistent straight-leg raising test results. According
to Dr. Ghanayem, if the underlying nerve condition
becomes chronic and persists for a significant period, the
affected nerves can become so damaged and desensitized
that a person can pass the test. Dr. Barnes presented an
alternative explanation: in some cases, a patient’s spinal
injuries heal by themselves, resulting in increased
mobility sufficient to pass the straight- leg raising test.

Biestek argues that the ALJ inappropriately
credited Dr. Barnes’s testimony over Dr. Ghanayem’s

9a

opinions. But just because Dr. Ghanayem offered
explanations that could reconcile elements of the
objective medical record with Biestek’s claims does not
mean that the ALJ was required to accept those
explanations. The ALJ faced dueling opinions from two
highly qualified medical experts and found Dr. Barnes’s
testimony more credible after assessing how well his
testimony fit with the objective medical record—a
determination she was fully empowered to make. See
Crum v. Sullivan, 921 F 2d 642, 644 (2d Cir. 1990) (“The
[Commissioner], and not the court, is charged with the
duty to weigh the evidence, to resolve material conflicts
in the testimony, and to determine the case
accordingly.”). The ALJ based her decision on
substantial evidence.

Next, Biestek contends that the ALJ failed to

properly weigh opinion evidence from two medical
experts, Drs. Wright and Barnes.

1. Dr. Wright’s Opinions

Dr. Wright saw Biestek frequently between
October 2012 and April 2013, and filled out a residual
functional capacity (“RFC”) questionnaire detailing
Biestek’s condition in July 2015. Biestek argues that the
ALJ erred in not according controlling weight to any of
Dr. Wright’s assessments.

An ALJ is required to give controlling weight to
a treating physician’s opinion, so long as that opinion is

supported by clinical and laboratory diagnostic evidence
not inconsistent with other substantial evidence in the

10a

record. 20 C.F.R. § 404.1527(c)(2); see also Wilson v.
Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).
But if the ALJ concludes that a treating source’s medical
opinion is not entitled to controlling weight, she must
weigh the opinion in light of several factors. See 20
C.F.R. § 404.1527(c) (listing factors). The ALJ need not
perform an exhaustive, step-by-step analysis of each
factor; she need only provide “good reasons” for both her
decision not to afford the physician’s opinion controlling
weight and for her ultimate weighing of the opinion.
Francis v. Comm’r of Soc. Sec., 414 F. App’x 802, 804-05
(6th Cir. 2011); Blakley v. Comm’r of Soc. Sec., 581 F 3d
399, 406-07 (6th Cir. 2009); 20 C.F .R. § 404.1527(e)(2).

Dr. Wright provided three opinions on Biestek’s
condition. Two are reports to the Michigan Department
of Human Services from April and October 2013. The
third is a residual functional capacity questionnaire
created for Biestek’s present disability application, from
July 2015.

The ALJ declined to give any of Dr. Wright’s
opinions controlling weight and instead assigned them
minimal weight. The ALJ discounted the July 2015
opinion entirely, noting that by then Dr. Wright had not
seen Biestek for over two years. Additionally, the ALJ
stated that Dr. Wright’s earlier opinions were not
supported by the objective medical record evidence. She
pointed to the “numerous MRI studies [which] showed
no more than mild-to-moderate degenerative findings”
as the “most notabl[e]” example, but did not specifically
refer to any additional evidence in the record to support
her reasoning.

lla

Biestek claims the ALJ gave Dr. Wright’s
opinions short shrift. At a minimum, he asserts the ALJ
should have afferded Dr. Wright’s 2013 opinions the
substantial weight generally accorded a treating
physician’s opinions. The magistrate judge’s report and
recommendation agrees that Dr. Wright was one of
states that MRI evidence was “the only reason offered
by the ALJ to reject Dr. Wright’s assessment,” and that
the ALJ ignored substantial evidence in the record
demonstrating Biestek’s efforts to alleviate significant
pain. Additionally, Biestek argues that the AL.J’s
reliance on the MRI findings is misplaced in light of Dr.
Ghanayem’s alternative explanation of the MRI imaging
as consistent with Biestek’s alleged impairments.

The ALJ had adequate reason to assign minimal
weight to Dr. Wright’s July 2015 questionnaire. By that
time, Dr. Wright had not provided Biestek with medical
care for over two years, clearly indicating that Dr.
Wright and Biestek were no longer in a treatment
relationship. See 20 C.F.R. § 404.1527(c)(2\i)Hii).

As for Dr. Wright’s earlier opinions, while they
may be somewhat in accord with other evidence, they
are nonetheless inconsistent with prior MRI results
showing only mild-to- moderate degeneration. Biestek
alleges that the AL.J’s failure to elaborate on her specific
rationale for discounting Dr. Wright’s 2013 opinions
beyond referencing the MRI evidence amounts to a
failure to provide “good reasons,” warranting reversal.
But the MRIs were only the “most notabl[e/” evidence
the ALJ relied on; other evidence in the record also
supports the AL.J’s decision. We may consider this

12a

evidence, even if the ALJ failed to mention it. Heston v.
Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001)
(“Judicial review of the Secretary’s findings must be
based on the record as a whole. Both the court of appeals
and the district court may look to any evidence in the
record, regardless of whether it has been cited [in prior
SSA proceedings].”)."

Here, the ALJ provided a rationale and referred
to particular evidence in the record. The point of the
“good reasons” rule is to permit meaningful review of
the AL,J’s decision and to ensure that a claimant is not
“bewildered” when an administrative bureaucracy tells
him that he is not disabled. Wilson, 378 F.3d at 544
(quoting Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999)).
There are no such problems in this case. In addition to
the MRIs, other record evidence supports the AL.J’s
conclusion, even if she referenced such evidence in a

more general way.

As the Commissioner points out, the examination
notes from Biestek’s various visits to Dr. Wright during
the six-month period when Dr. Wright was Biestek’s

* Other Sixth Circuit cases finding that an ALJ failed to provide
“good reasons” where the AL.J did not cite material in the record
that could have supported the AL.Jj’s decision are distinguishable.
In Wilson, the ALJ offered only a summary rejection of the opinion
of the claimant’s treating physician, with no analysis or support
whatsoever. 378 F.3d at 545-46. And in Rogers v. Commissioner of
Social Security, the ALJ dismissed the reports of multiple treating
physicians based on evidence that could not reasonably outweigh
the evidence proffered by the treating physicians. 486 F.3d 234,
243-44 (6th Cir. 2007).

13a

treating physician provide some of the most notable
evidence apart from the MRIs. There is little
consistency regarding the back pain alleged. The first
report describes Biestek as possessing “normal gait and
station,” and makes no mention of any back pain issues.
The next two exams identified back pain as an issue, but
no back pain is reported in the following three exams.
Back pain then re-emerges on the final set of
examination notes. These exam notes are difficult to
reconcile with the stark portrait of Biestek’s condition
that Dr. Wright painted in the two 2013 medical
examination reports.

Substantial evidence supported the AL.J’s
decision, and the ALJ provided a sufficient rationale.
“No purpose would be served by remanding for the ALJ
to explicitly address the shortcomings of [Dr. Wright’s]
opinion and the evidence and methods underlying it.”
Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 507
(6th Cir. 2006).

2. Dr. Barnes’s Opinion

a. Restriction on Bending at the Waist and
Lifting Weight

Dr. Barnes testified that Biestek could
occasionally squat and pick up objects weighing up to ten
pounds, but that he would not be able to bend at the
waist to do so. The ALJ gave this portion of Dr. Barnes’s
testimony “great weight,” but did not incorporate a
specific restriction on bending at the waist to lift up to
ten pounds into her RFC analysis or into a hypothetical
posed to the vocational expert. Biestek contends that, as
a result, the hypothetical “did not fairly portray

l4a

Biestek’s limitations as supported by the objective
evidence and the ultimate findings by the ALJ,” an error
that “cannot be deemed harmless” because the ALJ
specifically granted this portion of Barnes’s testimony
great weight.

The ALJ actually did incorporate a restriction on
“occasional stooping,” however. The Agency defines
“stooping” as “bending the body downward and forward
by bending the spine at the waist.” SSR 83-14, 1983 WL
31254, at *2 (Jan. 1, 1983). Biestek replies that the AL.J’s
reference to “occasional stooping” conflicts with Dr.
Barnes’s total prohibition on bending at the waist. But
Biestek is mistaken: Dr. Barnes did not impose a
restriction on all bending at the waist. He only opined
that Biestek could not bend at the waist and lift weight.
The ALJ not only incorporated a limit on weight lifting
into her hypothetical, she was even more restrictive
than Dr. Barnes. The ALJ asked the vocational expert
if jobs would be available for someone who “could not lift
more than five pounds at a time.” Overall, the ALJ
adequately addressed the ultimate issue—Biestek’s
ability to lift up to ten pounds of weight.

Biestek also claims that because the SSA has
itself held that some stooping is required to do most
work, the ALJ should have sought further clarification
on the impact of stooping. The vocational expert
proposed two jobs—bench (final) assembler and nut
sorter—from the Dictionary of Occupational Titles
(“DOT”) that the ALJ incorporated into her RFC
analysis. But neither of these jobs requires any stooping
at all. DOT § 713.687-018, 1991 WL 679271 (“Stooping:

15a

Not Present — Activity or condition does not exist.”); see
also DOT § 521.687-086, 1991 WL 674226 (same).

b. Exertion of Force

Biestek also complains that according to the DOT,
the bench assembler and nut sorter jobs may have
required Biestek to “exert{] up to 10 pounds of force
occasionally® . . . and/or a negligible amount of force
frequently‘ to lift, carry, push, pull, or otherwise move
objects,” in violation of Dr. Barnes’s prohibition on
lifting ten pounds from the waist. DOT § 713.687-018,
1991 WL 679271 (final assembler); DOT § 521.687-086,
1991 WL 674226 (nut sorter). Yet nothing in the DOT
indicates that such exertion requires lifting objects from
ground level. As the Commissioner points out, Biestek
could have exerted the necessary force in other ways,
such as while seated or while working with objects at
table height.

C. The ALJ Acceptably Assessed Biestek’s

Credibility

The ALJ described the various treatments
Biestek has received over the years as “relatively
effective in controlling his symptoms.” The efficacy of
these treatments diminished Biestek’s credibility. The

* The DOT defines “occasionally” as an “activity or condition
exist{ing] up to 1/3 of the time.” DOT § 713.687-018, 1991 WL
679271; see also DOT § 521.687-086, 1991 WL 674226 (same).

*«Frequently” is defined as an “activity or condition exist{ing] from
1/3 to 2/3 of the time.” DOT § 713.687-018, 1991 WL 679271; see also
DOT § 521.687-086, 1991 WL 674226 (same).

l6a

ALJ also noted that, throughout the record, Biestek
reported engaging in a variety of daily activities
suggestive of physical capacity to perform at least some
sedentary work. Further, the ALJ discussed Biestek’s
history of non-compliance with his treatment regimen,
citing numerous examples of Biestek cancelling or no-
showing his medical appointments and his failure to take
many of his medications as prescribed. These findings
factored into the ALJ’s RFC assessment.

Biestek takes issue with each of these alleged
faults in his credibility, and additionally charges that the
opinions of Drs. Barnes and Ghanayem should have
enhanced his credibility. His task is especially difficult:
while an AL.J’s credibility determinations must be
supported by substantial evidence, we accord them
special deference. Walters v. Comm’r of Soc. Sec., 127
F.3d 525, 531 (6th Cir. 1997). Given this standard, we
cannot say the ALJ erred.

1. Symptom Control

The ALJ cited Biestek’s favorable reaction to
Demerol, as well as nerve blocks, physical therapy, and
back injections as examples of treatments that provided
Biestek relief. Biestek alleges that the ALJ wrongly
characterized these treatments as permanently
“controlling” his pain rather than granting temporary
respite. There is certainly record evidence showing that
these measures did not completely negate Biestek’s
pain, and that in some cases treatment benefits did not
persist for an extended period. But the ALJ never
characterized Biestek’s pain as permanently and
comprehensively mitigated, instead describing the
various treatments Biestek received as “relative[ly]

17a

effective[|.” Moreover, she acknowledged the pain
Biestek continued to endure by restricting his RFC toa
narrow range of sedentary work with a variety of
accommodations.

2. Daily Activities Considered

The ALJ noted that, at various times, Biestek
said he engaged in a range of activities indicative of his
RFC. For example, Biestek reported reading the
newspaper, preparing simple meals, visiting his son at
least twice a week, driving, doing laundry, shopping,
cashing checks, providing childcare, watching television,
running errands, playing video games, and making
appointments.

Biestek objects to the ALJ’s characterization of
these activities, noting that he could do several of them
from any position, including reading the newspaper,
making appointments, and watching TV. He disputes
the AL.J’s assertion that he participated in childcare as
Biestek’s son was seventeen years old at the time of the
2015 hearing, making it unclear what “childcare” he
could be engaged in. He also attempts to add color to
several of the other tasks. He describes driving a car as
a rare event, perhaps only occurring once a month. He
says he confines his meal preparation to the microwave,
does the laundry just once every two to three weeks, and
only goes to the grocery store approximately once a
month (and that even at the store, he has had to lie down
in the aisle to relieve bouts of pain).

While Biestek’s ability to perform many of these
activities is definitely limited, the ALJ also cited other
activities much more obviously at odds with his claims of

18a

debilitating pain. For example, once Biestek started
taking Vicodin, his quality of life improved such that he
was able to exercise and play football with his son.
Overall, the ALJ based her conclusions on a reasonable
interpretation of the record.

8. Non-Compliance with Treatment Regimen

The ALJ also noted that Biestek has been non-
compliant with his prescribed treatments, undercutting
his testimony concerning the severity of his condition.
In particular, the ALJ pointed to Biestek’s repeated no-
shows and cancellations for his medical appointments.
Additionally, the ALJ referred to Biestek’s admitted
habit of selectively taking his prescribed medication. He
took his pain medication “once in a while as needed.”
Other medications reveal even more problematic usage
taking Wellbutrin (an antidepressant) both because it
made him feel “weird,” and because “he does not believe
much in medication so that is why he does not take it.”
The care provider also noted that Biestek “reports he
does not tell Gianina Cristiu, NP about not taking
medication because he does not want to hurt his chances
of obtaining SSI.” While adverse side effects are a
reasonable excuse for an applicant to interrupt a
prescribed treatment regimen, see SSR 16-3P, 2016 WL
1119029, at *9 (Mar. 16, 2016), the other rationales
Biestek supplied for not taking certain medications
display a pattern of behavior the ALJ reasonably
interpreted as undermining Biestek’s credibility.

19a
4. Testimony of Drs. Barnes and Ghanayem

Biestek further contends that because Drs.
Barnes and Ghanayem concurred that Biestek’s
subjective statements were “entirely consistent with his
pathology,” the ALJ erred in failing to address this
favorable credibility evidence. But the ALJ had
significant reasons for discounting Dr. Ghanayem’s
testimony, and Dr. Barnes testified that Biestek could
tolerate a range of sedentary work. The AL.J’s failure to
respond to these opinions does not deprive her decision
of the support of substantial evidence.

5. The ALJ’s Use of Evidence from After
Biestek’s Disability Date

Some of the evidence discussed by the ALJ
postdates May § 2013, when the ALJ found Biestek
disabled upon his fiftieth birthuay. For example, the
ALJ referenced a July 23, 2013, report by Edward
Czarnecki, Ph.D., indicating that Biestek “could perform
simple, rote, repetitive unskilled work.” Citing no
authority, Biestek claims that it was unfair to point to
evidence after Biestek’s disability date to impugn his
credibility before that time. This is a flawed argument.
Nothing about Biestek’s substantive medical condition
changed on May 2013; he simply turned fifty years old,
thereby creating an administrative presumption that he
was disabled. 20 C.F.R. Part 404, Subpt. P, App. 2,
§ 201.00(g). Evidence from after his formal disability
date is as relevant to discerning Biestek’s credibility as
evidence predating it.

20a

D. The ALJ Did Not Err in Refusing to Require
the Vocational Expert to Provide Specific Data
in Support of Her Opinions
Finally, Biestek argues that the ALJ erred by

refusing to require the vocational expert to produce data

or other documentation to support her opinions
regarding the work available to Biestek. Instead, the
vocational expert based her testimony on the Dictionary
of Occupational Titles and her “professional
experience,” gained from talking with employers and
conducting job analyses. When Biestek’s counsel
requested the vocational expert produce underlying
data or analyses in support of her statements, she
refused, citing the confidentiality of her files, and the

ALJ declined to require her to produce such information,

even in a redacted format.

Biestek alleges reversible error because little
substantiates the reliability of the vocational expert’s
testimony other than her word. Biestek argues such
testimony falls short of “substantial evidence.”

This court has not yet squarely addressed the
extent to which vocational experts must produce
underlying data in support of their opinions. There is a
divide, however, between the Seventh Circuit and
several other circuits that have staked a position. The
Seventh Circuit adopted a rigorous approach in a pair of
cases, Donahue v. Barnhart, 279 F 3d 441 (7th Cir. 2002),
and McKinnie v. Barnhart, 368 F.3d 907 (7th Cir. 2004),
incorporating the essence, if not the explicit
requirements, of Federal Rule of Evidence 702 into the
administrative adjudicative process as applied to
vocational expert testimony. See McKinnie, 368 F.3d at

2la

910-11. Expressing fear that vocational expert
testimony could be “conjured out of whole cloth,”
Donahue, 279 F.3d at 446, the Seventh Circuit obliges
vocational experts to provide the data and reasoning
used in support of their conclusions upon request,
McKinnie, 368 F.3d at 910-11. Biestek would like us to
establish a similar rule for the Sixth Circuit.

But the Seventh Circuit’s rule “has not been a
popular export.” Brault v. Comm’r of Soc. Sec., 683 F 3d
443, 449 (2d Cir. 2012). Congress specifically exempted
Social Security disability proceedings from the
strictures of the Federal Rules of Evidence, allowing
ALJs to consider a broader range of potentially relevant
information than would be admissible in an ordinary
court of law. 42 U.S.C. § 405(b)\(1) (“Evidence may be
received at any hearing before the Commissioner of
Social Security even though inadmissible under rules of
evidence applicable to court procedure.”). Yet despite
Congress’s explicit command, Donahue and McKinnie
effectively import a key provision of the Federal Rules
of Evidence into Social Security proceedings. As the
Second Circuit noted, “(i]t is unclear ... why the Seventh
Circuit would acknowledge in Donahue that ALJs are
not bound by the Rules of Evidence, but then turn
around and require ALJs to hew so closely to [them].”
Brault, 683 F.3d at 449. Other courts of appeals have
followed the Second Circuit’s lead. See Welsh v. Comm'r
of Soc. Sec., 662 F. App’x 105, 109-10 (3d Cir. 2016)
(rejecting the Seventh Circuit approach due to conflict
with 42 U.S.C. § 405(b)(1)); see also Bayliss v. Barnhart,
427 F.3d 1211, 1218 (9th Cir. 2005) (“An ALJ may take
administrative notice of any reliable job information,

22a

including information provided by a [vocational expert].
A [vocational expert|’s recognized expertise provides
the necessary foundation for his or her testimony. Thus,
no additional foundation is required.” (internal citation
omitted)).

Furthermore, there is little clarity on how to
apply the Donahue and McKinnie standards. The
Seventh Circuit required the Commissioner to
implement an evidentiary rule “similar though not
necessarily identical to that of Rule 702,” but it is unclear
what, precisely, such a rule would look like. Donahue,
279 F.3d at 446.

While it is undoubtedly true that vocational
expert testimony that is “conjured out of whole cloth”
cannot be considered substantial evidence, see id., the
Commissioner rightly points out that “guarding against
baseless testimony is very different” from incorporating
the stringent evidentiary requirements embodied in the
Federal Rules of Evidence. Moreover, Biestek aired his
concerns to the ALJ, who accepted the vocational
expert’s testimony over his objections. There is “no
reason to suppose that the ALJ did not carefully weigh
the credibility of witnesses who testified, and the ALJ’s
acceptance of [the vocational expert’s] testimony cannot
be said to have been improper.” Sias v. Sec’y of Health
& Human Servs., 861 F.2d 475, 481 (6th Cir. 1988).
Ultimately, responsibility for weighing the credibility of
witnesses belongs to the ALJ, who in this case
acceptably fulfilled that obligation.

23a
Ill. CONCLUSION

For these reasons, we AFFIRM the district
court’s decision.

2Aa
UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT
No. 17-1459
{
MICHAEL J. BIESTEK, December 27, 2017
Plaintiff - Appellant, DEBORAH S. HUNT, Clerk

Vv.

COMMISSIONER OF SOCIAL SECURITY,
Defendant - Appellee.

Before: CLAY, COOK, and WHITE, Circuit Judges.

JUDGMENT
On Appeal from the United States District Court
for the Eastern District of Michigan at Flint.
THIS CAUSE was heard on the record from the
district court and was argued by counsel.

IN CONSIDERATION THEREOF, it is
ORDERED that the judgment of the district court is
AFFIRMED.

ENTERED BY ORDER OF
THE COURT

/s/
Deborah S. Hunt, Clerk

25a
Appendix B
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL J. BIESTEK,
Plaintiff,

Civil Case No.
v. 16-1010422
Honorable Linda V.
Parker
NANCY A. BERRYHILL,
ACTING COMMISSIONER
OF SOCIAL SECURITY

Defendant.

26a

On February 5, 2016, Plaintiff filed this lawsuit
challenging Defendant’s final decision denying his
application for benefits under the Social Security Act.
(ECF No. 1.) On February 12, 2016, the matter was
referred to Magistrate Judge Mona K. Majzoub for all
pretrial proceedings, including a hearing and
determination of all non-dispositive matters pursuant to
28 US.C. § G636(b1A) and/or a report and
recommendation (“R&R”) on all dispositive matters
pursuant to 28 U.S.C. § 636(b)(1)(B).' (ECF No. 13.) The
parties subsequently filed cross- motions for summary
judgment. (ECF Nos. 22, 23.)

I. Background

On February 24, 2017, Magistrate Judge Majzoub
issued her R&R in which she recommends that this
Court deny Plaintiff's motion, grant Defendant’s motion,
and affirm Defendant’s decision finding Plaintiff not
disabled under the Social Security Act. (ECF No. 28.)
In her thorough analysis, Magistrate Judge Majzoub
first rejects Plaintiff's argument that the administrative
law judge (“ALJ”) erred in determining that Plaintiffs
impairments do not meet or medically equal Listing 1.04.
(id. at Pg ID 2195.) Magistrate Judge Majzoub next
declines Plaintiffs argument that the ALJ improperly
evaluated the medical opinion evidence. (/d. at Pg ID
2199.) Magistrate Judge Majzoub dismisses Plaintiffs
third argument that the ALJ failed to adequately
account for Plaintiffs limitations in concentration,
persistence, or pace. (/d. at Pg [ID 2208.) The magistrate

' This matter was first referred to Magistrate Judge R. Steven
Whalen on February 8, 2016. (ECF No. 5.)

27a

judge also deferred to the ALJ’s determinations that
Plaintiff's statements were not entirely credible and that
the statements made by Plaintiffs mother should be
given little weight. (/d. at Pg ID 2215). Lastly,
Magistrate Judge Majzoub_ rejected Plaintiffs
contention that the AL.J’s step-five determination is not
supported by substantial evidence. (/d.)

Magistrate Judge Majzoub concludes by advising
the parties that they may object to and seek review of
the R&R within fourteen days of service upon them. (/d
at 2218.) She further specifically advises the parties that
“{flailure to file specific objections constitutes a waiver
of any further right to appeal.” (J/d.) Plaintiff filed
objections on March 10, 2017. (ECF No. 29.) Defendant
responded to Plaintiff's objections on March 21, 2017."
(ECF No. 31.)

Il. Standard of Review

When objections are filed to a magistrate judge’s
R&R on a dispositive matter, the Court “make[s] a de
novo determination of those portions of the report or
specified proposed findings or recommendations to
which objection is made.” 28 U.S.C. § 686(b)(1). The
Court, however, “is not required to articulate all of the
reasons it rejects a party’s objections.” Thomas v.
Halter, 131 F. Supp. 2d 942, 944 (E.D. Mich. 2001)
(citations omitted). A party’s failure to file objections to

* Defendant filed an ex parte motion requesting leave to file excess
pages in their response to Plaintiffs objections. (ECF No. 30.) The
Court grants Defendant’s motion.

23a

certain conclusions of the report and recommendation
waives any further right to appeal on those issues. See
Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d
1370, 1373 (6th Cir. 1987). Likewise, the failure to object
to certain conclusions in the magistrate judge’s report
releases the Court from its duty to independently
review those issues. See Thomas v. Arn, 474 U.S. 140,
149 (1985).
Ill. Applicable Law & Analysis

A. Objection 1

In Plaintiffs first objection, he reiterates the
argument asserted in his summary judgment motion
that the ALJ’s step-five determination is not supported
by substantial evidence. (ECF No. 22 at Pg ID 2129.) In
particular, Plaintiff argues that the testimony of the
vocational expert (“VE”) was not supported by
substantial evidence because the VE based her
testimony on her experience. (/d. at Pg ID 2130.) As
Magistrate Judge Majzoub notes, the VE based her
testimony “on her eleven-year experience as a
vocational rehabilitation consultant, which included
talking with employers, performing on-the-job analysis,
and conducting her own individual labor market
surveys.” (ECF No. 28 at Pg ID 2215.) At the end of
VE’s testimony, counsel for Plaintiff requested evidence
of VE’s experience. (/d.) The VE testified that it would
require revealing patient’s private confidential files;
therefore, the ALJ determined that she would not
require the VE to produce those files. (/d.)

Plaintiff contends that the VE was required to
provide support for her testimony, relying on a standard

29a

articulated by the Seventh Circuit in Donahue v.
Barnhart, 279 F.3d 441, 446 (7th Cir. 2002). In Donahue,
the Seventh Circuit stated that:

If the basis of the vocational expert’s
conclusions is questioned at the hearing,
however, then the ALJ should make an
inquiry (similar though not necessarily
identical to that of Rule 702) to find out
whether the purported’ expert’s
conclusions are reliable. Social Security
Ruling 00—-4p, promulgated in December
2000 (and thus not directly applicable to
this case), is to much the same effect.
This ruling requires the ALJ to
“le|xplain [in the] determination or
decision how any conflict [with the
Dictionary] that has been identified was
resolved.” (Emphasis added.) The ruling
requires an explanation only if the
discrepancy was “identified”—that is, if
the claimant (or the ALJ on his behalf)
noticed the conflict and asked for
substantiation.

Donahue, 279 F.3d at 446-47. The Sixth Circuit has not
adopted this standard. See Masters v. Astrue, No. 07-
123, 2008 WL 4082965 (E.D. Ky. Aug. 29, 2008) (rejecting
Seventh Circuit standard requiring remand due to
failure to inquire into reliability because “reliability is a
factor only in the Sixth Circuit”). Plaintiff re- asserts his
summary judgment argument that this Court should
rely on Donahue although it has not been expressly

30a

adopted by the Sixth Circuit. This Court declines to do
80.

B. Objection 2

Plaintiff next argues that the magistrate judge
erred when she did not apply SSR 16-3p retroactively.
(ECF No. 29 at Pg [ID 2227.) SSR 16-3p, which went into
effect on March 28, 2016, supersedes SSR 96-7p. See
SSR 16-3p, 2016 WL 1119029 at *1; 2016 WL 1237954
(amending the effective date). SSR 163p provides
guidance on how the Social Security Administration
should “evaluate statements regarding the intensity,
persistence, and limiting effects of symptoms in
disability claims[.] SSR 16-3p, 2016 WL 1119029 at *1.
Because SSR 16-3p went into effect after the AL.J’s
decision, Magistrate Judge Majzoub complied with its
precursor, SSR 96-7p. (ECF No. 28 at Pg ID 2211.)
Plaintiff contends that Magistrate Judge Majzoub
should have applied SSR 16-3p retroactively. (ECF No.
29 at Pg ID 2227.)

Plaintiff does not provide any binding authority
to support its claim that the ruling should be applied
retroactively. Further, as Defendant notes, Plaintiff did
not raise an argument to apply SSR 16-3p retroactively
in his initial brief and has thus waived the argument. See
Emmons v. Comm’r of Soc. Sec., No. 12-15235, 2014 WL
1304936 at *1 (E.D. Mich. Feb. 13, 2014) (citing United
States v. Jerkins, 871 F.2d 598, 601 (6th Cir. 1989)).

C. Objection 3

Next, Plaintiff argues that Magistrate Judge
Majzoub erred in evaluating the opinion evidence. (ECF
No. 29 at Pg ID 2234.) First, Plaintiff notes that the

3la

magistrate judge found that Dr. Wright’s opinion was
inconsistent with objective evidence. (/d.) Plaintiff
mischaracterizes the magistrate judge’s opinion.
Magistrate Judge Majzoub stated that it would be
inconsistent to state that Dr. Wright had an “ongoing
treatment relationship” with Plaintiff pursuant to the
requirement in 20 C.F.R. 1502. (ECF No. 28 at Pg ID
2202.) Magistrate Judge Majzoub’s R&R makes clear
that Dr. Wright would not qualify as a treating physician
pursuant to the statute because he had not treated
Plaintiff for over two years. (/d.)

Plaintiff also contends that Magistrate Judge
Majzoub is incorrect with her analysis of Dr. Barnes’
assessment. Plaintiff states that “Dr. Barnes specifically
stated that he did not believe Plaintiff could even
occasionally bend at the waist and the ALJ so found.”
(ECF No. 29 at Pg ID 2237.) However, Plaintiffs
citations do not support that assertion. In fact, Plaintiff
cites to the following:

At the second hearing, Dr. Barnes opined

the claimant could occasionally lift 10

pounds of weight and frequently lift 5

pounds of weight; sit for 8 hours of the

day, a couple hours at a time; stand or

walk for 24 hours, in increments of about

a half hour at a time before having to sit

down for about 10 minutes; and could

squat to pick up 10 pounds but not bend

at the waist to do so.”
(ECF No. 17-9 at Pg ID 801-02.) (emphasis added).
Plaintiff also ci* +s to the testimony of Dr. Barnes, where
the doctor states that Plaintiff “could probably squat

32a

down to pick up ten pounds occasionally, but I don’t
think he would be able to bend over at the waist
(INAUDIBLE) occasionally.” (Jd. at Pg ID 973.) His
testimony was in reference to Plaintiffs ability to lift
certain weights. An interpretation that Dr. Barnes
meant Plaintiff could not bend over at the waist to lift
certain weights is consistent with Dr. Barnes’ testimony
at the second hearing.

D. Objections 4 and 5

Plaintiffs fourth objection states that the
magistrate judge erred in determining that Plaintiffs
impairments did not meet or medically equal Listing
1.04. (ECF No. 29 at Pg ID 2238.) The fifth objection
argues that Plaintiff was denied his right to due process
when the ALJ denied his request to allow Dr. Ghanayem
appear as a rebuttal witness. (/d. at Pg ID 2243.)

To properly object to the R&R, Plaintiff must do
more than merely restate the arguments set forth in his
summary judgment motion. See Owens v. Comm’r of
Soc. Sec., 1:13-47, 2013 WL 1304470, at *3 (W.D. Mich.
Mar. 28, 2013) (indicating that the “Court is not obligated
to address objections [which are merely recitations of
the identical arguments made before the magistrate
judge] because the objections fail to identify the specific
errors in the magistrate judge’s proposed
recommendations”) (emphasis in original); see also
Camardo v. Gen. Motors Hourly-Rate Emps. Pension
Plan, 806 F . Supp. 380, 382 (W.D.N.Y. 1992) (recitations
of nearly identical arguments are insufficient as
objections and constitute an improper “second bite at
the apple”); Nickelson v. Warden, No. 1:11 - ev-334, 2012
WL 700827, at *4 (S.D. Ohio Mar. 1, 2012) (“(O]bjections

33a

to magistrate judges’ reports and recommendations are
not meant to be simply a vehicle to rehash arguments set
forth in the petition.”). In both the fourth and fifth
objections, Plaintiff re-asserts the arguments stated in
his summary judgment motion to support his claims of
error in the ALJ’s analysis without identifying how
Magistrate Judge Majzoub erred in evaluating those
arguments. (ECF No. 29 at Pg ID 2238, 2243.) For the
reasons Magistrate Judge Majzoub provided in her
R&R, Plaintiffs arguments are without merit.

For these reasons, the Court rejects Plaintiffs
objections to Magistrate Judge Majzoub’s February 24,
2017 R&R and adopts the recommendations in the R&R.

Accordingly,

IT IS ORDERED that Plaintiffs motion for
summary judgment (ECF No. 22) is DENIED;

IT IS FURTHER ORDERED that Defendant’s
motion for summary judgment (ECF No. 23) is
GRANTED;

IT IS FURTHER ORDERED that Defendant’s
ex parte motion for leave to file excess pages (ECF No.
30) is GRANTED;

IT IS FURTHER ORDERED that Plaintiffs
motion for leave to file reply to Defendant’s response to
objections (ECF No. 32) is GRANTED;

IT IS FURTHER ORDERED that Defendant's

decision denying Plaintiffs application for benefits
under the Social Security Act is AFFIRMED.

3Aa
s/ Linda V. Parker _
LINDA V. PARKER
US. DISTRICT JUDGE

Dated: March 30, 2017

I hereby certify that a copy of the foregoing document
was mailed to counsel of record and/or pro se parties on
this date, March 30, 2017, by electronic and/or U.S. First

Class mail.
s/ Richard Loury __
Case Manager

35a

Appendix C
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHEAL J. BIESTEK,
CIVIL ACTION NO.

Plaintiff, 16-CV-10422

v. DISTRICT JUDGE
LINDA V. PARKER
COMMISSIONER OF
SOCIAL SECURITY MAGISTRATE

JUDGE MONA K.
Defendant. MAJZOUB

REPORT AND RECOMMENDATION

Plaintiff Michael J. Biestek seeks judicial review
of Defendant Commissioner of Social Security’s
determination that he is not entitled to social security
benefits for his physical and mental impairments under
42 U.S.C. § 40&(g). (Docket no. 1.) Before the Court are
Plaintiff's Motion for Summary Judgment (docket no. 22)
and Defendant’s Motion for Summary Judgment (docket
no. 23). Plaintiff has also filed a reply brief in support of
his Motion for Summary Judgment. (Docket no. 25.) The
motions have been referred to the undersigned for a
Report and Recommendation pursuant to 28 U.S.C.
§ 636(b)(1)(B). (Docket no. 13.) The Court has reviewed
the pleadings, dispenses with a hearing pursuant to
Eastern District of Michigan Local Rule 7.1(f(2), and
issues this Report and Recommendation.

36a

I. RECOMMENDATION

For the reasons that follow, it is recommended
that Plaintiffs Motion for Summary Judgment (docket
no. 22) be DENIED and Defendant’s Motion for
Summary Judgment (docket no. 23) be GRANTED.

II. PROCEDURAL HISTORY

The undersigned adopts and incorporates by
reference the procedural history of this matter set forth
in the ALJ’s decision. (TR 721-22.)

III. HEARING TESTIMONY AND MEDICAL
EVIDENCE

In his brief, Plaintiff sets forth the procedural
history of this matter and a brief statement of the case,
informing that his medical records are incorporated by
reference in the argument portion of his brief. (Docket
no. 22 at 2-3.) The ALJ summarized Plaintiff's hearing
testimony, Plaintiff's medical record, and the vocational
expert’s (VE’s) testimony in her decision. (TR 724-38.)
Defendant adopts the AL.J’s recitation of the facts.
(Docket no. 23 at 5.) There are no material
inconsistencies between the ALJ’s summary of the facts
and the record; therefore, the undersigned will
incorporate the summary by reference. Additionally,
the undersigned has conducted an independent review
of Plaintiff's medical record and the hearing transcript
and will include comments and citations as necessary
throughout this Report and Recommendation.

37a

IV. ADMINISTRATIVE LAW JUDGE’S
DETERMINATION

The ALJ found that Plaintiff met the insured
status requirements of the Social Security Act through
December 31, 2010, and that he had not engaged in
substantial gainful activity since the alleged onset date.
(TR 724.) The ALJ also found that Plaintiff suffered
from the following severe impairments: degenerative
dise disease, hepatitis C, asthma, and depression, but his
impairments did not meet or medically equal the
severity of an impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (TR 724-27.) The ALJ then
found that Plaintiff had the following RFC:

[Cllaimant has the residual functional

capacity to perform sedentary work as

defined in 20 CFR 404.1567(a) and

416.967(a) except [he] requires work in a

relatively clean air work environment,

such as no fumes, gases, concentrated dust

or other pollutants; no climbing of ladders,

ropes, or scaffolds; no climbing of ramps or

stairs; no crawling; occasional stooping,
crouching or kneeling; occasional flexion,
extension, or rotation of the neck; no
operation at hazardous heights or around
dangerous machinery; no operation in
temperature extremes; no work in food
service or medical assistance areas;
requires a sit/stand option at will, but not

to exceed 30 minutes at a time in either

position; is limited to simple, routine tasks

such as those jobs at the SVP 1 or 2 level

38a
due to pain, fatigue, and depression
causing occasional limitations in ability to
maintain concentration for extended
periods, but not off task for more than 10%
of the workday, as well as occasional
limitations in ability to carry out detailed
instructions; requires use of a can for
prolonged ambulation; and is limited to
brief and superficial interaction (i.e.
infrequent and not very involved) with the
public, coworkers, and supervisors.
(TR 727-36.) Subsequently, the ALJ noted that prior to
the established disability onset date, Plaintiff was a
younger individual age 45-49, but his age category
changed to that of an individual closely approaching
advanced age on May[J 2013. (TR 737.) Then, in reliance
on the VE’s testimony, the AL.J determined that prior
to May [J 2013, Plaintiff was capable of performing a
significant number of jobs in the national economy, but
beginning on May @@ 2013, there were no such jobs that
Plaintiff could (TR 737-38.) Therefore, the
ALJ found that Plaintiff was not disabled under the
Social Security Act at any time prior to May[J 2013, but
became disabled on that date and continued to be
disabled through the date of the decision. (TR 722-23,
738-39.)

Vv. LAW AND ANALYSIS
A. Standard of Review

Pursuant to 42 U.S.C. § 405(g), this Court has
jurisdiction to review the Commissioner’s final
decisions. Judicial review of the Commissioner's

39a

decisions is limited to determining whether his findings
are supported by substantial evidence and whether he
employed the proper legal standards. See Richardson v.
Perales, 402 U.S. 389, 401 (1971); Walters v. Comm’r, 127
F.3d 525, 528 (6th Cir. 1997). Substantial evidence is
more than a scintilla but less than a preponderance; it is
“such relevant evidence as a reasonable mind might
accept as adequate to support a_ conclusion.”
Richardson, 402 U.S. at 401 (quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1988)); Walters,
127 F.3d at 528. It is not the function of this Court to try
cases de novo, resolve conflicts in the evidence, or decide
questions of credibility. See Brainard v. Sec’y of Health
and Human Servs., 889 F.2d 679, 681 (6th Cir. 1989);
Garner v. Heckler, 745 F 2d 383, 387 (6th Cir. 1984).

In determining the existence of substantial
evidence, the court must examine the administrative
record as a whole. See Kirk v. Sec’y of Health and
Human Servs., 667 F 2d 52A, 536 (6th Cir. 1981), cert.
denied, 461 U.S. 957 (1983). If the Commissioner’s
decision is supported by substantial evidence, it must be
affirmed, even if the reviewing court would decide the
matter differently, Kinsella v. Schweiker, 708 F 2d 1058,
1059 (6th Cir. 1983), and even if substantial evidence also
supports the opposite conclusion. See Her v. Comm’r,
203 F.3d 388, 389-90 (6th Cir. 1999); Mullen v. Bowen,
800 F.2d 535, 545 (6th Cir. 1986) (en banc) (noting that
the substantial evidence standard “presupposes that
there is a zone of choice within which the decisionmakers
can go either way, without interference by the courts”).
“But ‘{ajln ALJ’s failure to follow agency rules and
regulations denotes a lack of substantial evidence, even

40a

where the conclusion of the AL.J may be justified based
upon the record.” Gayheart v. Comm’r of Soc. Sec., 710
F.3d 365, 374 (6th Cir. 2013) (quoting Cole v. Astrue, 661
F.3d 931, 937 (6th Cir. 2011)).

B. Framework for Social Security
Determinations
Plaintiff's Social Security disability
determination was made in accordance with a five- step
sequential analysis. In the first four steps, Plaintiff was
required to show that:
(1) ‘Plaintiff was not presently engaged in
(2) +#£=Plaintiff suffered from a_ severe
impairment; and
(3) the impairment met or was medically
equal to a “listed impairment;” or
(4) Plaintiff did not have the _ residual
functional capacity (RFC) to perform
relevant past work.

See 20 C.F .R. § 404.1520(a){f). If Plaintiff's impairments
prevented Plaintiff from doing past work, the
Commissioner, at step five, would consider Plaintiffs
RFC, age, education, and past work experience to
determine if Plaintiff could perform other work. If not,
Plaintiff would be deemed disabled. See id. at
§ 404.1520(g). The Commissioner has the burden of
proof only on “the fifth step, proving that there is work
available in the economy that the claimant can perform.”
Her, 203 F.3d at 391. To meet this burden, the
Commissioner must make a finding “supported by

A4la

substantial evidence that [the claimant] has the
vocational qualifications to perform specific jobs.”
Varley v. Sec’y of Health and Human Servs., 820 F 2d
777, 779 (6th Cir. 1987). This “substantial evidence” may
be in the form of vocational expert testimony in response
to a hypothetical question, “but only ‘if the question
accurately portrays [the claimant’s] individual physical
and mental impairments.” /d. (citations omitted).

C. Analysis

The Social Security Act authorizes “two types of
remand: (1) a post judgment remand in conjunction with
a decision affirming, modifying, or reversing a decision
of the [Commissioner] (a sentence-four remand); and (2)
a pre-judgment remand for consideration of new and
material evidence that for good cause was not previously
presented to the [Commissioner] (a sentence-six
remand).” Faucher v. Sec’y of Health and Human
Servs., 17 F.3d 171, 174 (6th Cir. 1994) (citing 42 U.S.C.
§ 405(g)). Under a sentence-four remand, the Court has
the authority to “enter upon the pleadings and
transcript of the record, a judgment affirming, denying,
or reversing the decision of the [Commissioner], with or
without remanding the cause for a hearing. 42 USC.
§ 405(g). Where there is insufficient support for the
ALJ’s findings, “the appropriate remedy is reversal and
a sentence-four remand for further consideration.”
Morgan v. Astrue, 10-207, 2011 WL 2292305, at *8 (ED.
Ky. June 8, 2011) (citing Faucher, 17 F.3d at 174).

Plaintiff asserts that this matter should be
reversed for an award of benefits or remanded for
further proceedings under sentence four because (1) the
ALJ erred in evaluating Listing 1.04; (2) the ALJ erred

42a

in evaluating the medical opinion evidence; (3) the ALJ
erred in evaluating Plaintiffs restrictions § in
concentration, persistence, or pace; (4) the AL.J’s
credibility assessment is erroneous; and (5) the AL.J’s
step-five determination is not supported by substantial
evidence. (Docket no. 22.)

1. The ALJ’s Assessment of
Plaintiff's Impairments under
Listing 1.04

Plaintiff challenges the ALJ’s determination at
step three of the sequential evaluation process that
Plaintiffs impairments do not meet or medically equal
Listing 1.04. (Docket no. 22 at 3-7.) At the third step of
the sequential evaluation process, a claimant will be
deemed presumptively disabled and eligible for benefits
if his impairment meets or medically equals one of the
listings in the Listing of Impairments. 20 C.F.R.
§§ 404.1520(aX4\iii), 416.920(a)(4 iii). “When
considering presumptive disability at Step Three, an
ALJ must analyze the claimant’s impairments in relation
to the Listed Impairments and give a reasoned
explanation of his findings and conclusions in order to
facilitate meaningful review.” Christephore v. Comm’r
of Soc. Sec., No. 11-13547, 2012 WL 2274328, at *6 (E.D.
Mich. June 18, 2012) (citing Reynolds v. Comm’r of Soc.
Sec., 424 F. App’x 411, 416 (6th Cir. 2011)). A claimant
must satisfy all of the criteria to meet a listing, or have
impairments that are medically equivalent to or equal in
severity and duration to the criteria of a listed
impairment. /d.; Rabbers v. Comm’r, 582 F.3d 647, 653
(6th Cir. 2009). “Moreover, all of the criteria must be
met concurrently for a period of twelve continuous

43a

months.” McKeel v. Comm’r of Soc. Sec., No. 14-cv-
12815, 2015 WL 3932546, at*8 (E.D. Mich. June 26, 2015)
(citing 20 C.F.R. § 404.1525(c\(3), (4); 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 1.00D (“(bjecause abnormal physical
findings may be intermittent, their presence over a
period of time must be established by a record of ongoing
management and evaluation”)). It is the claimant’s
burden to demonstrate that she meets or equals a listed
impairment at the third step of the sequential evaluation
process. Foster v. Halter, 279 F.3d 348, 354 (6th Cir.
2001). (“A claimant must demonstrate that her
impairment satisfies the diagnostic description for the
listed impairment in order to be found disabled
thereunder.”).

Under Listing 1.04, disorders of the spine (e.g.,
herniated nucleus pulposus, spinal arachnoiditis, spinal
stenosis, osteoarthritis, degenerative disc disease, facet
arthritis, vertebral fracture) are defined as those:

resulting in compromise of a nerve root

(including the cauda equina) or the spinal

cord. With:

A. Evidence of nerve root com-
pression characterized by neuro-
anatomic distribution of pain,
limitation of motion of the spine,
motor loss (atrophy with
associated muscle weakness or
muscle weakness) accompanied by
sensory or reflex loss and, if there
is involvement of the lower back,
positive straight-leg raising test
(sitting and supine); or

44a

B. Spinal arachnoiditis, con-
firmed by an operative note or
pathology report of tissue biopsy,
or by appropriate’ medically
acceptable imaging, manifested by
severe burning or painful
dysesthesia, resulting in the need
for changes in position or posture
more than once every 2 hours; or
C. Lumbar spinal stenosis
resulting in pseudoclaudication,
established by findings on
appropriate medically acceptable
imaging, manifested by chronic
nonradicular pain and weakness,
and resulting in inability to
ambulate effectively, as defined in
1.00B2b.

20 C.F.R. Part 404, Subpart P, Appendix 1, Section 1.04.
For a disorder of the spine to meet Listing 1.04A, “the
simultaneous presence of all of the medical criteria in
paragraph A must continue, or be expected to continue,
for a continuous period of at least 12 months.” Social
Security Acquiescence Ruling (AR) 15-1(4), 80 FR
57418-02, 2015 WL 5564523, at *57420 (Sept. 23, 2015)
(citing 20 C.F.R. §§ 404.1525(c)(4), 416.925(c)(4)). Stated
differently, when the paragraph A criteria “are
scattered over time, wax and wane, or are present on one
examination but absent on another, the individual’s
nerve root compression would not rise to the level of

severity required by listing 1.04A.” /d.

45a

Here, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or
medically equaled the severity of one of the listed
impairments. (TR 725.) With regard to Listing 1.04, the
ALJ explained:

The degenerative disc disease does not

meet or medically equal listing 1.04

because the claimant lacks the requisite

motor and sensory deficits, and there is no
evidence of spinal arachnoiditis or spinal
stenosis resulting in pseudoclaudication.

This finding is supported by the opinion of

medical expert, Dr. Barnes, who testified

that, in his opinion, the claimant did not
meet or equal a medical listing. The
undersigned gives significant weight to

this opinion from Dr. Barnes, as it is

consistent with the evidence in the record.

Namely, in supporting this opinion, Dr.

Barnes indicated that positive straight leg

raising was not found on most of the

examinations, as will be discussed in more
detail below. Furthermore, Dr. Barnes
noted that the physical findings of
numbness, reflex changes, and atrophy

were not consistently present over a 12-

month period, consistent with the medical

records. In addition, the MRI findings in

the record, as discussed below, reflect only

mild-to-moderate degenerative changes

with no more than mild stenosis (Exhibits

B2F/, B12F/6, B22F/45, and B30F/22).

46a
In making this finding regarding listing
1.04, the undersigned give [sic] little
weight to the medical opinion of Alexander
J. Ghanayem, M.D., who opined that the
claimant “met and exceeded the criter«
set forth for disability related to disorder»
of the spine as listed in section 1.04”
(Exhibit B43F). Dr. Ghanayem noted “in
2005 he had significant lumbar spine disc
disease”; however, the radiologist noted in
August 2005 that the claimant had “mild
degenerative disc disease and facet
osteoarthritis” (Exhibit B38F/3). The
doctor then noted that, by December 2009,
the claimant’s lumbar spine “showed
significant and diffuse evidence of lumbar
dise disease”; yet, the MRI study dated
December 05, 2009, and re-interpreted on
January 19, 2010 revealed no more than
moderate abnormalities with no evidence
of spinal canal stenosis, neural foramina
stenosis, or dise protrusion (Exhibits
B2F/9 and B12F/6). Mild-to-moderate
degenerative changes were seen on a 2013
lumbar spine MRI, and an October 2014
MRI revealed only mild central canal
stenosis (Exhibits B22F/45 and B30F/22).
Dr. Ghanayem’s opinion is contrary to the
objective findings of multiple radiologists
who reviewed the claimant’s images. The
undersigned also notes that Dr. Ghanayem
only reviewed the claimant’s medical
records and never had the opportunity to

47a

examine, or even meet with and question,

the claimant (Exhibit B43F).
(TR 725.)

Plaintiff argues that the ALJ erred in adopting
the opinion of Dr. Barnes over that of Dr. Ghanayem.
(Docket no. 22 at 4.) Plaintiff also argues that even if he
cannot demonstrate that that he meets Listing 1.04A,
Dr. Ghanayem testified that Plaintiffs impairments
“more than equaled” the Listing. (Docket no. 25 at 1.)
“However, the ALJ has the right to resolve conflicting
respectable medical opinions.” Morreale v. Heckler, 595
F. Supp. 907, 910 (E.D. Mich. 1984) (citing LeMaster v.
Weinberger, 533 F.2d 337, 349 (6th Cir. 1976); Halsey v.
Richardson, 441 F.2d 1230 (6th Cir. 1971)). See also
Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001) (It is
not the court’s role to resolve conflicting evidence in the
record.). While the AL.J’s notation that Dr. Ghanayem
did not personally examine Plaintiff is questionable,
particularly where Dr. Barnes also did not personally
examine Plaintiff, it does not constitute a significant
legal error requiring remand. Here, there substantial
evidence in the record that supports the AL.J’s decision
that Plaintiff did not meet or medically equal Listing
1.04, including the MRI reports, which the ALJ
accurately cited as revealing only mild-to moderate
degenerative changes; the objective medical evidence
revealing the lack of a simultaneous presence of the
paragraph A criteria (TR 245-46, 250, 252, 255, 285, 328-
330, 410, 412, 414, 469, 486, 590, 636, 639, 1554, 1570, 1609,
1617, 1914, 1922-23, 1931, and 1957); and Dr. Barnes’s
opinion, upon which the ALJ was entitled to rely.
Although there is also record evidence, including Dr.

48a

Ghanayem’s opinion, that tends to support Plaintiffs
assertions, the AL.J’s step-three determination is
supported by substantial evidence, and it must be
affirmed. See Her v. Comm’r, 203 F.3d at 389-90.
Therefore, Plaintiffs Motion should be denied with
regard to this issue.
2. The ALJ's Assessment of the
Medical Opinion Evidence

Next, Plaintiff argues that the ALJ improperly
evaluated the medical opinion evidence, specifically that
of his treating physician, Dr. Wright, consultative
examiner Dr. Jack Salomon, and the non-examining
medical experts, Dr. Barnes and Dr. Ghanayem. (Docket
no. 22 at 7-15.)

~ Dr. Wright

It is well settled that the opinions of treating
physicians are generally accorded substantial deference.
In fact, the ALJ must give a treating physician’s opinion
complete deference if it is supported by clinical and
laboratory diagnostic evidence and it is not inconsistent
with the other substantial evidence in the record. 20
C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). When an ALJ
determines that a treating source’s medical opinion is
not controlling, he must determine how much weight to
assign that opinion in light of several factors: (1) length
of the treatment relationship and the frequency of
examination; (2) nature and extent of the treatment
relationship; (3) supportability of the opinion; (4)
consistency of the opinion with the record as a whole; (5)
specialization of the treating source; and (6) other
factors. 20 C.F.R. $§ 404.1527(c\(2)(6), 416.927(c\(2)-(6).

49a

There is no per se rule that requires an
articulation of each of the six regulatory factors listed in
20 C.F.R. §§ 404.1527(c(2)(6), 416.927(ce2){6). Norris
v. Comm’r of Soc. Sec., No. 11-CV-11974, 2012 WL
3584664, at *5 (E.D. Mich. Aug. 20, 2012) (citing Tilley v.
Comm’r of Soc. Sec., 394 F. App’x 216, 222 (6th Cir.
2010)). An AL.J’s failure to discuss the requisite factors
may constitute harmless error (1) if “a treating source’s
opinion is so patently deficient that the Commissioner
could not possibly credit it;” (2) “if the Commissioner
adopts the opinion of the treating source or makes
findings consistent with the opinion;” or (3) “where the
Commissioner has met the goal of [§ 1527(c)}—the
provision of the procedural safeguard of reasons—even
though she has not complied with the terms of the
regulation.” Nelson v. Comm’r of Soc. Sec., 195 F. App’x
462, 470 (6th Cir. 2006) (quoting Wilson v. Comm'r of
Soc. Sec., 378 F.3d 541, 547 (6th Cir. 2004)).

The Commissioner requires its ALJs to “always
give good reasons in [their] notice of determination or
decision for the weight [they] give [a] treating source’s
opinion.” 20 C.F.R. §§ 404.1527(cX(2), 416.927(c\(2).
Those good reasons must be “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.” Wilson, 378 F.3d at
544 (quoting SSR 96-2p, 1996 WL 374188, at *5 (1996)).
The district court should not hesitate to remand when
the Commissioner has failed to identify the weight
assigned to a treating physician’s opinion and provide
good reasons for that weight. See Cole v. Astrue, 661

50a

F.3d 931, 939 (6th Cir. 2011) (“This Court has made clear
that ‘wle do not hesitate to remand when the
Commissioner has not provided ‘good reasons’ for the
weight given to a treating physician’s opinion and we
will continue remanding when we encounter opinions
from AL.J’s that do not comprehensively set forth the
reasons for the weight assigned to a treating physician’s
opinion.”) (citing Hensley v. Astrue, 573 F.3d 263, 267
(6th Cir. 2009)).

Plaintiff treated with Harold M. Wright, DO from
October 2012 to April 2013. (TR 1552-71.) On April 25,
2013 and October 7, 2013, Dr. Wright completed
substantially similar Medical Examination Reports with
regard to Plaintiff, in which he opined that Plaintiff could
lift less than 10 pounds occasionally but never more than
10 pounds; stand and/or walk for less than 2 hours in an
&-hour workday, sit for less than six hours in an 8-hour
workday; use his arms for simple grasping and reaching
but never for pushing, pulling, or fine manipulating; and
operate foot/leg controls. (TR 1592-94, 1945-47.) Dr.
Wright also opined that Plaintiff was limited in
comprehension, memory, sustaining concentration,
following simple directions, reading and writing, and
social interaction. (/Jd.) Dr. Wright then completed a
Physical Residual Functional Capacity Questionnaire
with regard to Plaintiff on July 10, 2015. (TR 1888-96.)
In this report, Dr. Wright opined that Plaintiff could
occasionally lift less than 10 pounds but never more than
10 pounds; could sit or stand for only 10 minutes at time;
could sit for less than 2 hours total in an 8-hour workday;
could stand for less than 2 hours in an 8-hour workday;
would need to walk around every 10 minutes in an 8-hour

5la

workday for 5 minutes each time; would need to take 20-

30 minute breaks every 10-15 minutes; would need a

cane to ambulate; would be incapable of performing even

low stress jobs; and would never be able to twist, stoop,

crouch, or climb ladders or stairs, among other things.
The ALJ summarized Dr. Wright’s
opinions and then assessed them as
follows:

The undersigned gives minimal weight to

Dr. Wright’s opinions for numerous

reasons. First, despite preparing the most

recent disabling opinion in July 2015, the
doctor admitted to not having seen the
claimant since April 2013, or over two
years prior (Exhibit B31F/1). Moreover,

the objective medical evidence in the

record does not support the significant

limitations proposed by Dr. Wright. Most
notably, the numerous MRI studies
showed no more than mild-to-moderate
degenerative findings, which is
inconsistent with Dr. Wright's
suggestions.

(TR 734.)

“A physician qualifies as a treating source if the
claimant sees her ‘with a frequency consistent with
accepted medical practice for the type of treatment
and/or evaluation required for [the] medical condition.”
Smith v. Comm'r of Soc. Sec., 482 F 3d 873, 876 (6th Cir.
2007) (alteration in original) (quoting 20 C.F.R.
§ 404.1502). Dr. Wright certainly qualified as Plaintiff's

52a

treating physician from October 2012 to April 2013; thus,
his April 2013 opinion qualifies as that of a treating
physician and is generally entitled to substantial
deference. Also, the undersigned concludes that his
October 2013 opinion is not so far removed from the
period of treatment to prevent it from being considered
as a treating physician’s opinion. But, it is undisputed
that Dr. Wright had not treated Plaintiff for over two
years when he rendered his July 2015 opinion. It would
be inconsistent with the “ongoing treatment
relationship” requirement of 20 C.F.R. § 404.1502 to
treat that opinion as one authored by a treating
physician. See Tate v. Comm'r of Soc. Sec., 467 F. App’x
431, 433 (6th Cir. 2012). Accordingly, the ALJ properly
discounted Dr. Wright’s July 2015 opinion on this basis.

That being said, Dr. Wright’s April and October
2013 opinions were entitled to controlling weight as long
as they were “well-supported by medically acceptable
inconsistent with the other substantial evidence in [the]
case record.” 20 C.F.R. §§ 404.1527(c\(2), 416.927(c\(2).
to deference because Dr. Wright was well aware of
Plaintiffs conditions and treatment, particularly the
treatment that Plaintiff underwent to alleviate his pain.
(Docket no 22 at 8.) Plaintiff further argues that Dr.
Wright’s opinions are consistent with and were
bolstered by the testimony of the non-examining medical
expert, Dr. Ghanayem. (/d. at 8-9.) But Plaintiffs
reliance on opinion evidence to support his argument in
this regard does not defeat the AL.J’s finding that Dr.
Wright’s opinions were inconsistent with the objective

53a
medical evidence, specifically, the result” of Plaintiffs
MRIs, which constitute substantial evidence in this
matter. The AL.J did not err in discounting Dr. Wright’s
April and October 2013 opinions as inconsistent with the
mild-to-moderate MRI results. Based on the discussion
above, the undersigned concludes that the ALJ provided
good reasons for assigning little weight to Dr. Wright’s
opinions, which reasons are supported by the evidence
of record and are sufficiently specific to clarify the
reasons for that weight. Plaintiffs Motion should be
denied with regard to this issue.
b. Dr. Salomon

Next, Plaintiff argues that the ALJ erred by
assigning little weight to the opinion of consultative
examiner Jack Salomon, M.D. and instead assigning
great weight to the opinion of the
medical expert, Dr. Barnes. (Docket no. 22 at 9-10.) Dr.
Salomon conducted a physical evaluation of Plaintiff on
July 2, 2013, with regard to Plaintiff's alleged disability.
(TR 1615-21.) The parties do not dispute that Dr.
Salomon was not a treating physician, as he only
examined Plaintiff once on a consultative basis. The
ALJ is not bound by a non-treating physician’s opinion.
McKivens v. Comm’r, No. 11-cv-14268, 2012 WL
3263847, at *11 (E.D. Mich. Jul. 9, 2012) (citation
omitted). However, “[wjhen no treating physician
opinion has been granted controlling weight .. the
medical opinion of a consultative examiner is to be
weighed considering all of the factors identified in 20
C.F .R. § 404.1527(¢\(1) through (6).” Id. (citing 20 C.F .R.
§ 404.1527(e\(2\iii)). Nevertheless, there is no per se
rule that requires an articulation of each of the six

54a

regulatory factors listed in 20 C.F.R. § 404.1527(c).
Norris v. Comm’r, No. 11- CV-11974, 2012 WL 3584664,
at *5 (E.D. Mich. Aug. 20, 2012) (citing Tilley v. Comm’r,
394 Fed. Appx. 216, 222 (6th Cir. 2010)).

Upon examining Plaintiff, Dr. Salomon rendered
the following assessment: “Mr. Biestek probably has
hepatitis C. He has lumbar radiculopathy. He may have
some other problems also. At this time, he is not very
functional. (TR 1617.) The ALJ evaluated Dr. Salomon’s
assessment as follows:

At the conclusion of the consultative

examination, Dr. Salomon opined that the

claimant was “not very functional”

(Exhibit B23F/3). The undersigned gives

little weight to Dr. Salomon’s opinion, as he

but merely makes a blanket statement.

Moreover, Dr. Salomon only examined the

claimant on one occasion, and thus, has no

Although Dr. Salomon found positive

diagnostic findings on the various MRIs do

not support the disabling statement from

the examiner.
(TR 734.) Here, the ALJ appropriately considered and
discussed some of the regulatory factors in weighing Dr.
Salomon’s assessment. And to the extent that Dr.
Salomon’s vague statement that Plaintiff is “not very
functional” constitutes a medical opinion under the
regulations, the ALJ’s failure to adopt Dr. Salomon's
“opinion” is harmless because it is patently deficient

5ba

with regard to any functional limitations related thereto.
See 20 C.F.R. §§ 404.1527(aX(1), 416.927(aX1); Nelson,
195 F. App’x at 470. Moreover, Plaintiff does not allege
any additional functional limitations that he believes the
ALJ should have included based on Dr. Salomon’s
report. Therefore, Plaintiffs Motion should be denied in
this regard.
ce. Drs. Ghanayem and Barnes

First, with regard to Dr. Ghanayem, Plaintiff
alleges that although the ALJ permitted Dr. Ghanayem
to testify at the hearing regarding his previously-
submitted written opinion, the ALJ erred by depriving
Plaintiff of the ability to use Dr. Ghanayem as rebuttal
evidence to the testimony of Dr. Barnes. (Docket no. 22
at 10-13.) Plaintiff relies on several authorities to
support his argument: POMS § DI 27540.001; the
Administrative Procedure Act (APA), 5 U.S.C. § 556(d);
20 C.F.R. § 404.929; 20 C.F .R. 404.950(a); and HALLEX
1-2-6-60.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0818%3A02. Public record. Not legal advice.