United States District Court, E.D. Kentucky, Northern Division, Ashland
FANNIE J. CAMPBELL, Plaintiff,
CAROLYN COLVIN, Commissioner of Social Security, Defendant.
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE, District Judge.
The Plaintiff, Fannie Campbell, brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of an administrative decision of the Commissioner of Social Security denying her application for disability insurance benefits and Supplemental Security Income. The Court, having reviewed the record and for the reasons set forth herein, will deny Campbell's Motion for Summary Judgment [R. 10] and grant the Commissioner's [R. 14].
Campbell filed her application for disability insurance benefits and SSI on May 17 and June 15, 2010, respectively. [Transcript (Tr.) 220, 221, 298]. She alleges a disability beginning on July 15, 2005, due to depression, fibromyalgia, and heart problems. [Tr. 349]. Campbell's application was denied initially and upon reconsideration. [Tr. 220, 223]. Subsequently, at Campbell's request, an administrative hearing was conducted before Administrative Law Judge Brian LeCours (ALJ) on November 3, 2011. [Tr. 135]. During the hearing, the ALJ heard testimony from Campbell and vocational expert (VE) David Burnhill. [ Id. ] Campbell, who was fifty years old as of the date of the ALJ's decision, has completed twelfth grade and is a licensed practical nurse. [Tr. 141-42, 349-50]. Campbell has past relevant work as a nurse, and though the VE testified that she could no longer perform that work, he found that there are jobs that exist in significant numbers in the national economy that Campbell could perform, and the ALJ accepted that testimony. [Tr. 126-27].
In evaluating a claim of disability, an ALJ conducts a five-step analysis. See 20 C.F.R. §§ 404.1520, 416.920. First, if a claimant is working at a substantial gainful activity, she is not disabled. 20 C.F.R. § 404.1520(b). Second, if a claimant does not have any impairment or combination of impairments which significantly limit her physical or mental ability to do basic work activities, then she does not have a severe impairment and is not disabled. 20 C.F.R. § 404.1520(c). Third, if a claimant's impairments meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, she is disabled. 20 C.F.R. § 404.1520(d). Fourth, if a claimant's impairments do not prevent her from doing past relevant work, she is not disabled. 20 C.F.R. § 404.1520(e). Fifth, if a claimant's impairments (considering her residual functional capacity, age, education, and past work) prevent her from doing other work that exists in the national economy, then she is disabled. 20 C.F.R. § 404.1520(f).
In this case, at Step 1, the ALJ found that Campbell has not engaged in substantial gainful activity since July 1, 2005, the alleged onset date. [Tr. 120]. At Step 2, the ALJ found that Campbell has the following severe impairments: affective disorder; anxiety disorder; chronic cervical thoracic and lumbosacral strain; chronic arthralgias and osteoarthritis; fibromyalgia; and coronary artery disease post myocardial infarction. [ Id. ] At Step 3, the ALJ found that Campbell's impairments did not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix I. [Tr. 121]. At Step 4, the ALJ determined that Campbell is unable to perform any past relevant work. [Tr. 125]. However, at Step 5 the ALJ relied on the testimony of the VE to find that, based on Campbell's residual functional capacity, there are jobs that exist in significant numbers in the national economy that Campbell could perform. [Tr. 126]. Accordingly, on November 16, 2011, the ALJ issued an unfavorable decision, finding that Campbell was not disabled, and therefore, ineligible for SSI. [Tr. 127]. The Appeals Council declined to review the ALJ's decision [Tr. 105-07] and Campbell now seeks judicial review in this Court.
This Court's review is limited to whether there is substantial evidence in the record to support the ALJ's decision. 42 U.S.C. § 405(g); Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003); Shelman v. Heckler, 821 F.2d 316, 319-20 (6th Cir. 1987). "Substantial evidence" is "more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). The substantial evidence standard "presupposes that there is a zone of choice within which decision makers can go either way, without interference from the court." Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) ( en banc ) (quotes and citations omitted).
In determining the existence of substantial evidence, courts must examine the record as a whole. Id. (citing Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983)). However, courts are not to conduct a de novo review, resolve conflicts in evidence, or make credibility determinations. Id. (citations omitted); see also Bradley v. Sec'y of Health & Human Servs., 862 F.2d 1224, 1228 (6th Cir. 1988). Rather, if the Commissioner's decision is supported by substantial evidence, it must be affirmed even if the reviewing court would decide the matter differently, and even if substantial evidence also supports the opposite conclusion. See Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999); see also Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993); Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983); Mullen, 800 F.2d at 545.
Campbell initially argues that the Agency's decision should be reversed and she should be awarded benefits because the Administrative Law Judge was biased against her. In her view, the ALJ did not allow her attorney to cross examine the vocational expert. As a result, she believes the record was not fully developed concerning the cumulative effect of all the moderate impairments on her ability to obtain work.
When considering a claim that an ALJ's decision is colored by bias, the Court must begin with the "presumption that policymakers with decisionmaking power exercise their power with honesty and integrity." Collier v. Comm'r of Soc. Sec., 108 F.Appx. 358, 363-64 (6th Cir. 2004) (citing Navistar Int'l. Transportation Corp. v. United States Environmental Protection Agency, 941 F.2d 1339, 1360 (6th Cir.1991)). "The burden of overcoming the presumption of impartiality rests on the party making the assertion [of bias], ' and the presumption can be overcome only with convincing evidence that a risk of actual bias or prejudgment' is present." Id. (citing Navistar Int'l. Transportation Corp., 941 F.2d at 1360 (6th Cir.1991)). That is to say, "any alleged prejudice on the part of the decisionmaker must be evident from the record and cannot be based on speculation or inference." Id. (citing Navistar Int'l. Transportation Corp., 941 F.2d at 1360 (6th Cir.1991)).
As an initial matter, it should be noted that Campbell is making this argument too late. "If [Campbell] felt that she was being deprived of a fair hearing, the proper procedure would have been for her to request the examiner to withdraw from the case. Wells v. Apfel, 234 F.3d 1271 (6th Cir. 2000) (citing 20 C.F.R. § 404.922). In failing to do so, Campbell has essentially waived her right to object to the conduct of the examiner now. Id. ("Thus, appellant's failure to request withdrawal of the examiner during the hearing or in her request for review before the Appeals Council constitutes a waiver of her right to object to the conduct of the examiner.").
The Court has nevertheless reviewed the record and found it devoid of any indication that the ALJ was biased against Campbell. The ALJ conducted a lengthy and thorough hearing in which Campbell was given the opportunity to answer numerous relevant questions about her claim. [Tr. 135-212]. In determining Campbell's ability to perform her past work and other jobs in the national economy, the ALJ questioned a Vocational Expert. [Tr. 192]. He asked the Vocational Expert a number of hypothetical questions, including one that assumed that Campbell was as limited as she represented herself to be. [Tr. 192-199]. The ALJ also provided an opportunity for Campbell's attorney to cross-examine the Vocational Expert. [Tr. 197-210]. That cross-examination began with a brief discussion of the definition of the words "poor" and "fair." [Tr. 197-99]. Though the ALJ, the Vocational Expert, and the Attorney appeared to be on different pages as to the definition of those terms based on old and new forms, they appeared to come to enough of a consensus to allow the Attorney to ask a hypothetical involving those terms. [Tr. 199]. The Vocational Expert provided a lengthy response to this hypothetical question. [Tr. 203]. The Attorney's next hypothetical question involved a "moderate" limitation, and the ALJ and the Vocational Expert again asked for clarification about how the Attorney was defining the term. [Tr. 204]. During a protracted discussion that followed, the Attorney noted that he was referencing a specific exhibit and the ALJ then summarized his understanding of "moderate" based on the ultimate conclusion of that exhibit. [Tr. 206]. The Vocational Expert noted that even accepting the conclusions of that exhibit, substantial jobs would remain in the national economy for Campbell. [Tr. 208]. The ALJ then stated, "Okay, thank you, sir. Counsel?" [Tr. 208]. This would seem to have been a prime opportunity for the Attorney to object to the ALJ's conduct, clarify his meaning further, or otherwise make his concerns about judicial bias known. However, the Attorney simply moved on to his next hypothetical, which also featured moderate limitations. [Tr. 209]. After ...