NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0746n.06
No. 12-4227 FILED
Aug 12, 2013
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
SONJA STANKOSKI, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
MICHAEL J. ASTRUE, ) THE SOUTHERN DISTRICT OF
COMMISSIONER OF SOCIAL SECURITY, ) OHIO
)
Defendant-Appellee. )
OPINION
Before: McKEAGUE and DONALD, Circuit Judges; LAWSON, District Judge.*
Bernice B. Donald, Circuit Judge. On April 30, 2007, Sonja Stankoski applied for
disability insurance benefits. Her application was denied by the Commissioner of Social Security.
The denial was upheld after a hearing before an administrative law judge. The Commissioner’s
decision was affirmed by the district court. Stankoski timely appeals. For the reasons set forth
herein, we AFFIRM.
I.
In 2007, Sonja Stankoski sought Social Security disability insurance benefits, alleging that
she could not work due to a host of mental and physical impairments. Although she attempted to
*
The Honorable David M. Lawson, United States District Judge for the Eastern District of
Michigan, sitting by designation.
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do part-time work as an interpreter in 2008 and 2009, she had not engaged in substantial gainful
activity since November 3, 2006, the alleged onset date of her disability. Stankoski testified that she
received private disability benefits until May 2009. Stankoski suffers from major depressive
disorder, single episode; osteoarthritis of the spine; ischemic cardiac disease; fibromyalgia; obesity;
and hypothyroidism.
1. Mental Impairments
In April 2007, Stankoski was diagnosed with major depressive disorder, severe without
psychotic features. In August 2007, Stankoski attended a psychological consultative mental status
examination where Mark Hammerly, Ph.D., diagnosed her with moderate single episode major
depression. Dr. Hammerly noted that Stankoski was mildly deficient in social relationships and
performed minimal household and community activities. Dr. Hammerly also noted that Stankoski
drove herself to appointments and attempted to seek employment within the last year. Dr. Hammerly
rated Stankoski’s mental abilities as moderately impaired in relating to others; not impaired in her
ability to understand, remember, and follow instructions; not impaired in her ability to maintain
attention, concentration, persistence, and pace to perform simple repetitive tasks; and moderately
impaired in her ability to endure the stress and pressures associated with day-to-day work activity.
Stankoski sought mental health treatment until May 2009 when her husband changed insurance. In
July 2009, Bruce Hennessy, M.D., Stankoski’s treating gastroenterologist, recommended that
Stankoski continue to see a counselor for her ongoing depression. Dr. Hennessy opined that
Stankoski seemed depressed and that Stankoski’s depression was creating her physical symptoms.
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Dr. Hennessy explained to Stankoski that medical therapy was unsuccessful in treating her physical
ailments, but psychotherapy could be beneficial in getting to the root of the problem. Stankoski
received psychotropic medication, but she has not received the recommended psychotherapy.
2. Physical Impairments
A. Back Impairments
In September 2007, an x-ray of Stankoski’s lumbar spine suggested degenerative disc disease
at vertebrae L4-L5 with interspace narrowing, sclerosis, spurring, and vacuum disk formation. In
October 2007, a lumbar magnetic resonance imaging (MRI) scan showed L4-5 desiccation and bulge
with moderate spinal canal stenosis, along with L3-4 disc desiccation and bulge with mild
biforaminal stenosis and mild central canal stenosis. Stankoski also had an MRI of the cervical
spine, which showed C3-C4 spondylotic protrusion resulting in mild to moderate stenosis;
effacement of the thecal sac absent evidence of spinal cord compression; C4-C5 disc desiccation
with broad-based bulging disc that effaces the thecal sac absent evidence of any spinal cord
compression and mild left-sided foraminal stenosis; and C5-C6 disc height narrowing and disc
desiccation with spondylotic protrusion effacing the thecal sac absent evidence of cord compression
with other mild degenerative changes. In November 2007, Stankoski had another MRI of the
thoracic spine, which demonstrated minimal, non-compressive lower thoracic spondylosis with no
evidence of compressive discopathy in the thoracic spine. Throughout this time, Stankoski
complained of pain and numbness in her back and legs.
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In October 2009, Stankoski had a computed tomography scan of the lumbar spine and the
thoracic spine. The scan of the lumbar spine confirmed the previously discussed degenerative
changes along with moderate to severe degenerative changes at L5-S1. The scan of the thoracic
spine indicated mild degenerative changes. In November 2009, another MRI revealed desiccation
of the L3-L4 through L5-S1 intervertebral discs, along with central spinal canal stenosis at L4-L5
related to discogenic spondylotic changes with bilateral foraminal encroachment. Another MRI
showed multilevel diffuse disc bulging with no spinal cord compression.
On November 30, 2009, Stankoski’s treating physician, William Kemp, M.D., F.A.C.S.,
noted in his clinical assessment to Albert Salomon, D.O., another treating physician, that Stankoski
had some thoracolumbar pain secondary to degenerative changes without evidence of spinal cord or
nerve root compression. He also indicated that the thoracic area did not likely require a surgical
procedure; however, local injection therapy might be an option. Dr. Kemp opined that Stankoski
was having only mild problems and her stenosis was moderate. He went on to explain that he and
Stankoski discussed surgical treatment of her spinal stenosis which would include decompression,
fixation and fusion at L4-L5, but he mentioned that Stankoski did not feel that the level of her
difficulties was sufficient to warrant surgical intervention. Instead, she wanted to try epidural steroid
injections and pain management treatment. During a follow-up appointment in December 2009,
Stankoski expressed that she had normal strength in the bilateral upper and lower extremities.
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B. Heart Impairments
Stankowski was diagnosed with coronary artery disease and was treated in July 2008 with
cardiac catheterization and insertion of a stent. During a routine follow-up on October 28, 2009, her
physician indicated that Stankoski was doing well without chest pain, shortness of breath,
paroxysmal nocturnal dyspnea (PND), orthopnea, or peripheral edema. Her physical condition was
unremarkable at that time. On March 6, 2009, a cardiac catheterization revealed another lesion,
which was treated with a drug-eluting stent. The treating physician opined that the new stent had
achieved excellent results and the original stent looked great. On March 27, 2009, Stankoski
followed-up with the treating physician and complained that she felt poorly and continued to suffer
from chest pressure, burning, and shortness of breath. The treating physician noted that Stankoski
looked great and that her physical condition was unremarkable. He altered her medication and asked
her to join cardiac rehabilitation. In June 2009, another cardiovascular catheterization showed two-
vessel artery disease with 65 percent stenosis of the left anterior descending artery and 65 percent
stenosis of the circumflex. During a follow-up visit in September 2009, Stankoski reported mild
improvement in her fatigue and shortness of breath, improvement in her mood, and that she felt
better overall.
C. Fibromyalgia
On August 18, 2007, Dr. Herbert A. Grodner diagnosed Stankoski with degenerative joint
disease and fibromyalgia, “which has caused her to have ‘extreme pain’ in her back, neck, hands,
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shoulders, and knees.” On February 2, 2010, Dr. Albert M. Salomon examined Stankoski during a
routine check-up and indicated that Stankoski was suffering from fibromyalgia.
D. Obesity
On December 4, 2007, Dr. Albert M. Salomon indicated that Stankoski was obese, based on
three weight measurements taken during periodic intervals in 2007. On June 15, 2009, while
discharging Stankoski from the hospital after she underwent a heart angioplasty, Dr. Ernest L.
Mazzaferri, Jr. also diagnosed Stankoski as being obese.
E. Hypothyroidism
On August 18, 2007, Dr. Herbert A. Grodner diagnosed Stankoski with hypothyroidism. On
June 10, 2008, Dr. Kenneth H. Vitellas examined Stankoski and determined that her thyroid gland
was “unremarkable.”
3. Proceedings
On April 30, 2007, Sonja Stankoski filed an application for disability insurance benefits. Her
claim was denied by the Commissioner of Social of Security. Thereafter, Stankoski filed a written
request for a hearing, which was held by an administrative law judge (ALJ) via video conference.
Stankoski appeared in Columbus, Ohio, and the ALJ presided over the hearing from Houston, Texas.
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With regard to her mental impairments, Stankoski testified that she could take care of her
personal needs and only had mild restrictions with her daily living activities. She also testified that
while she does not get out of the house often, she visits her family. Stankoski further explained that
she has trouble concentrating and completing tasks in a timely manner.
During the proceedings, Daniel W. Hamill, Ph.D., a psychological expert, confirmed
Stankoski’s major depression, single episode. Dr. Hamill, however, did not believe that Stankoski’s
mental impairment rose to the level of a disability under the Social Security standards. He based his
conclusion, in part, on Stankoski’s moderate score on her global assessment of function, which is
inconsistent with “marked” impairment.1
During the proceedings, Melissa Neiman M.D., a medical expert, opined that none of
Stankoski’s physical impairments rose to the level of any listing for presumptive disability. She
testified that Stankoski could perform light level work activity that excluded crawling, crouching,
kneeling, heights, ropes, scaffolds, ladders, exposure to heights, or use of dangerous machinery.
After consideration of the evidence, the ALJ concluded that Stankoski was not disabled
within the meaning of the Social Security Act. Stankoski appealed the ALJ’s decision denying her
application for social security disability insurance benefits. The district court adopted the magistrate
1
The term “marked” is a standard for measuring the degree of limitation. Marked means
more than moderate but less than extreme. A marked limitation may arise when several activities
or functions are impaired, or even when only one is impaired, so long as the degree of limitation is
such as to interfere seriously with the ability to function independently, appropriately, effectively,
and on a sustained basis. See 20 C.F.R. §§ 404.1520a and 416.920a.
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judge’s report and recommendation affirming the Commissioner of Social Security’s decision.
Stankoski now appeals.
II.
On appeal of a denial of benefits, we conduct a de novo review of the district court’s legal
conclusion that the ALJ’s decision was supported by substantial evidence. Johnson v. Comm’r of
Soc. Sec., 652 F.3d 646 (6th Cir. 2011); see also Bass v. McMahon, 499 F.3d 506, 509 (6th Cir.
2007). “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.” Vance
v. Comm’r of Soc. Sec., 260 F. App’x 801, 803 (6th Cir. 2008) (quoting Cutlip v. Sec’y of Health &
Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). We, however, will not try the case de novo,
resolve conflicts in evidence, or decide questions of credibility. Smith v. Halter, 307 F.3d 377, 379
(6th Cir. 2001). Rather, we “must affirm the Commissioner’s conclusions absent a determination
that the Commissioner has failed to apply the correct legal standards or has made findings of fact
unsupported by substantial evidence in the record.” Vance, 260 F. App’x at 803 (quoting Longworth
v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005)). A review of the record demonstrates
that the ALJ’s upholding of the Commissioner’s decision was adequately supported by substantial
evidence.
Stankoski argues that the ALJ made several errors in disposing of the case at step five of the
sequential evaluation process prescribed by 20 C.F.R. § 404.1520, contending that the ALJ: (1) made
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errors of fact and law in evaluating the medical and vocational evidence; (2) erred in evaluating
Stankoski’s nervous and mental impairments; (3) erred regarding Stankoski’s subjective complaints
and the credibility finding; and (4) found that Stankoski could perform jobs that exceed her
capabilities. We must decide whether, under 42 U.S.C. § 405(g), substantial evidence supports the
ALJ’s decision.
Stankoski argues that the ALJ said that he relied on “objective medical evidence” in dealing
with Stankoski’s complaints relating to fibromyalgia, which does not have objective findings except
the familiar trigger points. She also argues that the ALJ should not have relied on Dr. Neiman, a
neurosurgeon, when fibromyalgia falls to the specialty of rheumatology. And Dr. Grodner opined
that she would have difficulty doing most types of physical activity. It bears noting, as we have on
earlier occasions, that in many cases where a claimant bases an allegation of disability on a diagnosis
of fibromyalgia, difficulty arises over the lack of objective findings, because that ailment is difficult
to correlate with objectively observable, physical manifestations. See, e.g., Preston v. Sec’y of
Health & Human Servs., 854 F.2d 815, 817-18 (6th Cir. 1988) (observing that, “[a]s set forth in the
two medical journal articles . . . fibrositis causes severe musculoskeletal pain which is accompanied
by stiffness and fatigue due to sleep disturbances. . . . [I]t is a process of diagnosis by exclusion and
testing of certain ‘focal tender points’ on the body for acute tenderness which is characteristic in
fibrositis patients”); Clark v. Aetna Life Ins. Co., 395 F. Supp. 2d 589, 609 (W.D. Mich. 2005)
(citing Gaffney v. Comm’r of Soc. Sec., 277 F. Supp. 2d 733, 736 (E.D. Mich. 2003)); see also
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 243 (6th Cir. 2007). But a diagnosis of fibromyalgia
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does not equate to a finding of disability or an entitlement to benefits. Vance v. Comm’r of Soc. Sec.,
260 F. App’x 801, 806 (6th Cir. 2008).
The ALJ took into account the objective medical evidence concerning Stankoski’s limitations
when determining her residual functional capacity to perform work. Residual functional capacity
is an “assessment of [the claimant’s] remaining capacity for work,” once her limitations have been
considered. 20 C.F.R. § 416.945(a). It is meant “to describe the claimant’s residual abilities or what
the claimant can do, not what maladies a claimant suffers from — though the maladies will certainly
inform the ALJ’s conclusion about the claimant’s abilities.” Howard v. Comm’r of Soc. Sec., 276
F.3d 235, 240 (6th Cir. 2002).
Stankoski argues that Dr. Neiman’s assessment that Stankoski only had mild degenerative
changes in her lower back was factually incorrect. Stankoski also quibbles with the order in which
the ALJ heard testimony. Both of these arguments are unavailing. While there is objective medical
evidence that demonstrates Stankoski suffered from back impairments, there is also ample evidence
to support the ALJ’s conclusion that Stankoski’s back impairments did not result in limitations
beyond her capacity to perform a limited range of light work. For example, Stankoski underwent
numerous imaging scans, but none of the imaging results demonstrated that Stankoski’s back
impairments were debilitating. Moreover, Stankoski admitted that she did not feel that her back pain
warranted a surgical procedure. As such, she opted for less invasive epidural injections and pain
management therapy and the record suggests that Stankoski responded well to these treatments.
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Stankoski also argues that her mental impairments are more limiting than the ALJ’s
conclusions show. Stankoski claims that they affect her on a daily basis, evidenced by crying spells
and low energy. Yet there is no objective medical evidence to support these complaints. See Jones
v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003) (“There is no question that subjective
complaints of a claimant can support a claim for disability, if there is also objective medical evidence
of an underlying medical condition in the record.”) An ALJ is not required to accept a claimant’s
subjective complaints and “may properly consider the credibility of a claimant” when making a
determination of disability. Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997).
Stankoski essentially asks this court to delve into a credibility determination, and we simply will not
decide questions of credibility. See Halter, 307 F.3d at 379. There is ample evidence in the record
to support the Commissioner’s finding that Stankoski’s mental impairments did not compromise her
ability to perform a range of semi-skilled work outlined by the ALJ. For example, Stankoski
achieved a moderate global function assessment, she was able to drive herself to her appointments,
and she benefitted from mental health counseling but chose to stop going to counseling only after
her husband’s insurance coverage changed.
Stankoski argues that the ALJ gave greater weight to the findings of Drs. Neiman and
Hammil compared to Stankoski’s treating physicians and that the ALJ failed to specify the amount
of weight given. “Generally, the opinions of treating physicians are given substantial, if not
controlling, deference.” Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004).
However, “treating physicians’ opinions are only given such deference when supported by objective
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medical evidence.” Id. (citing Jones, 336 F.3d at 477). None of Stankoski’s treating physicians
opined that any of Stankoski’s ailments were debilitating. In fact, her treating physicians’ opinions
are in alignment with the ALJ’s decision. And even if they were not, “[t]he determination of
disability is [ultimately] the prerogative of the [Commissioner], not the treating physician.” Vance,
260 F. App’x at 804 (quoting Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985).
Stankoski argues that her job skills are not transferable. This argument, however, was not
raised before the district court and therefore is forfeited. See Ealy v. Comm’r of Soc. Sec., 594 F.3d
504, 513 (6th Cir. 2010). Stankoski also argues that the ALJ erred by finding that she could perform
semi-skilled jobs while at the same time finding that she was limited to unskilled work. This
argument is without merit because the ALJ’s decision does not limit Stankoski to unskilled work.
For example, the residual functional capacity assessment did not limit Stankoski to unskilled work
and none of the medical opinions of record limited Stankoski to unskilled work.
III.
There is ample evidence in the record to support the Commissioner’s finding that none of
Stankoski’s impairments were disabling in the Social Security context. See Vance, 260 F. App’x at
803. For this reason, we AFFIRM.
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