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Rodgers v. Colvin

United States District Court, E.D. Kentucky, Central Division, Frankfort

March 2, 2017

JOYCE LOUISE RODGERS PLAINTIFF
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security DEFENDANT

          REPORT AND RECOMMENDATION

          Candace J. Smith United States Magistrate Judge

         Plaintiff 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 Act.[1] (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.

         I. STANDARD OF REVIEW AND THE ADMINISTRATIVE PROCESS

         In 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)).

         In this 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).

         The 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)).

         II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Plaintiff 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, [2] an 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).

         Plaintiff 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).

         On 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).

         The ALJ 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.[3] (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).

         At step 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.

(Id.).

         The ALJ 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).

         At the 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.

         On July 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.

         On 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).

         Plaintiff 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.

         III. ANALYSIS

         A. The ALJ did not err in his RFC determination

         Plaintiff 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).

         1. The ALJ's RFC determination was supported by medical opinion evidence.

         Plaintiff 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.

         The 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 ...


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