United States District Court, E.D. Kentucky, Central Division, Frankfort
REPORT AND RECOMMENDATION
Candace J. Smith United States Magistrate Judge
Joyce Louise Rodgers brings this action under 42 U.S.C.
§§ 405(g), challenging Defendant Commissioner's
final decision denying her application for benefits under
Title II and Title XVI of the Social Security
(R. 1). This matter has been referred to the undersigned for
preparation of a Report and Recommendation under 28 U.S.C.
§ 636(b)(1)(B). At issue is whether the Administrative
Law Judge (ALJ) erred in finding Plaintiff “not
disabled” and therefore not entitled to benefits. After
a thorough review of the administrative record, for the
reasons explained below it will be recommended that
Plaintiff's Motion for Judgment on the Pleadings (R. 19)
be denied, and the Commissioner's Motion for Summary
Judgment (R. 20) be granted.
STANDARD OF REVIEW AND THE ADMINISTRATIVE PROCESS
reviewing the decision of an ALJ in social security cases,
the only issues before the reviewing court are whether the
ALJ applied the correct legal standards and whether the
decision is supported by substantial evidence. Richardson
v. Perales, 402 U.S. 389, 390 (1971); Blakley v.
Comm'r of Soc. Sec., 581 F.3d 399, 405 (6th Cir.
2009). Substantial evidence 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 (1938)). The findings of the Commissioner are not
subject to reversal merely because there exists in the record
substantial evidence to support a different conclusion.
Blakley, 581 F.3d at 406. “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.”
Id. (citing Mullen v. Bowen, 800 F.2d 535,
545 (6th Cir. 1986)). Thus, even if the evidence could also
support another conclusion, the decision of an ALJ must stand
if the evidence could reasonably support the conclusion
reached. Id. (citing Key v. Callahan, 109
F.3d 270, 273 (6th Cir. 1997)).
case, Plaintiff must establish that she is disabled within
the meaning of the Social Security Act in order to qualify
for benefits. 42 U.S.C. §§ 423(a)(1), 1381 et
seq. The Act defines “disability” as the
“inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C.
§§ 423(d)(1)(A), 1382c(a)(3)(A).
Social Security Act requires the Commissioner to follow a
five-step analysis when making a determination on a claim of
disability. Vance v. Comm'r of Soc. Sec., 260 F.
App'x 801, 803-04 (6th Cir. 2008) (citing Abbott v.
Sullivan, 905 F.2d 918, 923 (6th Cir. 1990)); Heston
v. Comm'r of Soc. Sec., 245 F.3d 528, 534 (6th Cir.
2001). First, a claimant must demonstrate that she is not
currently engaged in “substantial gainful
activity.” Vance, 260 F. App'x at 803
(citing 20 C.F.R. §§ 404.1520(b), 416.920(b)).
Second, if the claimant is not engaged in substantial gainful
activity, she must demonstrate that she suffers from a severe
impairment. Id. at 803-04. “A ‘severe
impairment' is one which ‘significantly limits . .
. physical or mental ability to do basic work
activities.'” Id. at 804 (citing 20 C.F.R.
§§ 404.1520(c), 416.920(c)). Third, if the claimant
is not performing substantial gainful activity, has a severe
impairment that is expected to last for at least twelve
months, and the impairment meets or equals a listed
impairment located at 20 C.F.R. part 404, subpart P, appendix
1, then the claimant is presumed disabled regardless of age,
education or work experience. Id. (citing 20 C.F.R.
§§ 404.1520(d), 416.920(d)). Fourth, if the
impairment does not meet or equal a listed impairment, the
claimant must show her impairment prevents her from doing her
past relevant work. Id. Lastly, even if the claimant
cannot perform her past relevant work, she is not disabled if
she can perform other work that exists in the national
economy. Id. (citing Abbott, 905 F.2d at
923). Throughout this process, the claimant carries the
overall burden of establishing that she is disabled, but the
Commissioner bears the burden of establishing that the
claimant can perform other work existing in the national
economy. Id. (quoting Wilson v. Comm'r of
Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004)).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
was 50 years old at the time of the ALJ's decision. Her
alleged disability began on June 1, 2012, when she was 48
years old. (Administrative Record (A.R.) 39). Plaintiff has a
high school education. (Id. at 40-41). Plaintiff has
past relevant employment as a home-health aide/companion,
assistant manager at a gas station, a cashier at a truck
stop, and an auto parts assembler. (Id. at 204,
41-44, 55-58). On her application, Plaintiff asserted the
following conditions limit her ability to work: diabetes,
back pain, and neck pain. (Id. at 197). Plaintiff
also testified that she has a torn meniscus and arthritis in
her left knee; suffers from peripheral vascular disease and
peripheral neuropathy; and has undergone surgeries including
a hysterectomy and amputation of her right fifth toe.
(Id. at 45-52).
testified at the hearing that her pain in her left knee and
back affects her ability to work. (A.R. 45). She testified
that sitting causes her knee pain and the only way to relieve
the pain is to walk. (Id. at 48-50). Walking,
however, causes her back pain. (Id.). Plaintiff
explained that, on a good day, she can walk for about 20 to
25 minutes before she needs to sit down due to her back pain.
(Id. at 50). Plaintiff testified that she can sit
for a period of 20 minutes before she needs to stand up due
to pain. (Id.). Plaintiff also testified that she
had a stent put in her left leg because she suffers from
peripheral vascular disease and blood clots. (Id. at
46). Plaintiff explained that her little toe on her right
foot has been amputated and that she recently underwent a
hysterectomy. (Id. at 46-48). Plaintiff further
testified that she suffers from diabetic neuropathy in both
of her legs that feels likes she has “needles in [her]
feet.” (Id. at 51-52). Plaintiff explained
that she takes Neorontin to ease the pain in her legs but
that it makes her feel dizzy and sleepy. (Id. at
52). In addition to Neorontin, Plaintiff takes Plavix,
aspirin, Vistaril, Zanaflex, Losartan, and Percocets.
(Id.). Plaintiff testified that she does not take
medicine for her diabetes. (Id. at 52-53).
September 25, 2013, Plaintiff filed applications for
disability insurance benefits and supplemental security
income. (Id. at 17, 173, 179). These claims were
denied initially and again upon reconsideration.
(Id. at 17, 65-102). At Plaintiff's request, a
hearing was held before Administrative Law Judge (ALJ) Robert
B. Bowling on May 20, 2015. (Id. at 125-26, 35-64).
Plaintiff appeared and testified at the hearing.
(Id. at 37-54). The ALJ also heard testimony from an
impartial vocational expert (VE). (Id. at 54-62).
After receiving testimony and reviewing the record, the ALJ
issued a written decision on July 30, 2015, finding Plaintiff
was not disabled within the meaning of the Social Security
Act. (Id. at 17-28).
used the five-step sequential process to determine that
Plaintiff was not disabled. (Id.). See 20
C.F.R. §§ 404.1520(a), 416.920(a). At step one, the
ALJ determined that Plaintiff had not engaged in substantial
gainful employment since June 1, 2012-the alleged onset date
of her disability. (A.R. 19). At step two, the ALJ determined
that Plaintiff had the severe impairments of: obesity and
degenerative joint disease. (Id.). At step three,
the ALJ analyzed Plaintiff's impairments and found
Plaintiff did not have any impairment or combination of
impairments that met or medically equaled one of the listed
impairments under the applicable Federal Regulations.
(Id. at 21).
four, the ALJ determined that Plaintiff had the residual
functional capacity (RFC) to perform medium work, with some
limitations. Specifically, the ALJ found:
After careful consideration of the entire record, the
undersigned finds that claimant has the residual functional
capacity to perform medium work. The claimant can
occasionally lift and or carry 50 pounds. The claimant can
frequently lift and or carry 25 pounds. The claimant can sit,
stand and walk for six hours in an eight-hour workday. The
claimant can push and or pull up to the weight limit of
medium work. The claimant can reach overhead with the left
upper extremity occasionally.
heard testimony from an impartial vocational expert (VE) who
stated that, based on the RFC provided by the ALJ, Plaintiff
could perform her past relevant work as a companion, an
assistant manager, a cashier, and a motor vehicle assembler.
(Id. at 58). As to the home-health aide position,
the VE testified that Plaintiff could only perform this
position as it is classified in the Dictionary of
Occupational Titles (DOT) (or as it is normally performed)
and not as the claimant had actually performed it.
(Id.). The VE based this opinion on the fact that
the home-health aide position is rated in the DOT at the
medium exertion level but was performed by Plaintiff at the
heavy exertion level. (Id. at 55-58).
conclusion of the May 20, 2015, hearing, counsel for
Plaintiff informed the ALJ that there were additional medical
records from U.K. Healthcare regarding Plaintiff's
hysterectomy that were not in the record. (Id. at
62-63). Counsel explained that he had not “been able to
get those [medical records] yet.” (Id. at 63).
The ALJ advised Plaintiff and counsel that he would keep the
record open an additional two weeks to allow Plaintiff to
submit the records.
20, 2015, counsel submitted the U.K. Healthcare records which
were filed in Plaintiff's record as Exhibits 21F - 25F.
(Id. at 825-1281). On July 30, 2015, the ALJ entered
his decision adopting the VE's opinions, and concluding
that Plaintiff was not “disabled” for social
security purposes. (Id. at 17-28). It does not
appear that the ALJ considered the records contained in
Exhibits 21F - 25F in rendering his decision.
September 3, 2015, Plaintiff appealed the ALJ's decision
to the Social Security Appeals Council. (A.R. 12-13). On
November 10, 2015, the Appeals Council denied Plaintiff's
request for review, rendering the ALJ's July 30, 2015,
decision denying Plaintiff benefits the final decision of the
Commissioner. (Id. at 1-3). The Appeals Council
stated that it had considered the additional evidence
submitted by Plaintiff's counsel (Exhibits 21F - 25F) and
found that the information does not provide a basis for
changing the ALJ's decision. (Id. at 2). On
January 14, 2016, having exhausted her administrative
remedies, Plaintiff timely filed a Complaint asserting that
the ALJ's decision was not in accordance with the law and
was contrary to the evidence. (R. 1).
has filed a Motion for Judgment on the Pleadings (R. 19),
arguing the ALJ erred: in rendering his RFC finding and by
positing a defective hypothetical to the VE and
misinterpreting the VE's testimony. Further, Plaintiff
asserts that the agency decision should be vacated and
remanded to require the agency to assess the U.K. Healthcare
medical records contained in Exhibits 21F - 25F. Each of
these arguments is discussed below.
The ALJ did not err in his RFC determination
sets forth two arguments in support of her claim that the ALJ
erred in his RFC finding. First, Plaintiff argues that the
ALJ erred because his RFC determination is not supported by
the medical opinion evidence. (R. 19-1, at 3-4, 7-8). Second,
Plaintiff claims that the ALJ improperly evaluated her
subjective complaints of pain in rendering his RFC
determination. (Id. at 5-7).
The ALJ's RFC determination was supported by medical
argues that the ALJ erred by finding that she has a residual
functional capacity (RFC) of medium-exertional because it is
unsupported by the medical opinion evidence. (R. 19-1, at 3,
7-8). Plaintiff further argues that a finding of
light-exertional RFC is also inappropriate based on the
medical opinion evidence. (Id. at 3-4). For the
reasons below, her arguments fail.
Social Security Act instructs that the ALJ-not a
physician-ultimately determines a claimant's RFC.
See 20 C.F.R. § 404.1527(d)(2); see also
Nejat v. Comm'r of Soc. Sec., 359 F. App'x 574,
578 (6th Cir. 2009) (“Although physicians opine on a
claimant's residual functional capacity to work, ultimate
responsibility for capacity-to-work determinations belongs to
the Commissioner.”). The Sixth Circuit has recognized
that, under the Social Security regulations, “the ALJ
is charged with the responsibility of evaluating the medical
evidence and the claimant's testimony to form an
assessment of [the claimant's] residual functional
capacity.” Webb v. Comm'r of Soc. Sec.,
368 F.3d 629, 633 (6th Cir. 2004). In other words, the ALJ is
charged with evaluating all of the evidence in the record and
synthesizing it into a concise RFC. It is not necessary for
the RFC to reflect any specific medical opinion in the