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Bray v. Berryhill

United States District Court, W.D. Kentucky, Bowling Green Division

August 17, 2017

LISA A. BRAY PLAINTIFF
v.
NANCY A. BERRYHILL, Commissioner of Social Security DEFENDANT

          MEMORANDUM OPINION AND ORDER

          LANNY KING, MAGISTRATE JUDGE

         This matter is before the Court on Plaintiff's complaint seeking judicial review, pursuant to 42 U.S.C. § 405(g), of the final decision of the Commissioner denying her claim for Social Security disability benefits. The fact and law summaries of Plaintiff and Defendant are at Dockets 13 and 18, and the case is ripe for determination.

         The parties have consented to the jurisdiction of the undersigned Magistrate Judge to determine this case, with any appeal lying before the Sixth Circuit Court of Appeals. Docket 9.

         Because the administrative law judge's (ALJ's) decision is supported by substantial evidence and in accord with applicable legal standards, the Court will AFFIRM the Commissioner's final decision and DISMISS Plaintiff's complaint.

         Discussion

         The ALJ issued the Commissioner's final decision on December 15, 2015, finding that Plaintiff is not disabled through the date of decision. Administrative Record (AR), p. 66. Plaintiff challenges the ALJ's residual functional capacity (RFC) finding that her impairments allow performance of a limited range of unskilled, sedentary work. More specifically, Plaintiff challenges the ALJ's finding that her degenerative disc disease (DDD), gastroesophageal reflux disease (GERD), polyarthralgias, bilateral plantar and calcaneal spurring, diabetes, gout, obesity, and depressive and anxiety disorders (AR, p. 56) allow her: “to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a), with the following limitations: she can occasionally climb ramps and stairs; she can never climb ladders, ropes, and scaffolds; the claimant requires the use of a cane, for ambulation; she can occasionally stoop, kneel, crouch, and crawl; the claimant requires work without concentrated exposure to vibration and hazards such as heights and moving machinery; and, the claimant can understand, remember, and carry out simple instructions.” AR, p. 59.

         Plaintiff makes four arguments challenging the ALJ's RFC finding.

         1. The ALJ's RFC finding adequately considered Plaintiffs need to use a cane for ambulation.

         As noted above, the ALJ found that Plaintiff “requires the use of a cane, for ambulation.” AR, p. 59.

         Soc. Sec. Rul. (SSR) 96-9p, 1996 WL 374185, at *7 states[1] that the occupational base for unskilled, sedentary work will be “significantly eroded” if the individual must use a hand-held assistive device, not only for ambulation, but also “for balance because of significant involvement of both lower extremities (e.g., because of a neurological impairment).” The occupational base is not significantly eroded if the device is needed only for prolonged ambulation. Id.

         Plaintiff argues that “[t]he administrative decision failed to properly weigh the effect of the requirement that [she] must ambulate with a cane upon her capacity to perform a reduced range of sedentary work pursuant to the requirements of SSR 96-9p.” Docket 13, p. 2.

         Plaintiff's reliance on SSR 96-9p is unpersuasive for two reasons.

         First, the ALJ found and the evidence supports that Plaintiff must use a cane for prolonged ambulation but not for balance. Clinicians consistently judged Plaintiff not to be a fall risk. AR, pp. 391, 397, 498, and 500. When asked, Plaintiff denied having poor balance. AR, pp. 548, 563, and 590.

         Second, the limitation of having to use a cane for ambulation was given to the vocational expert (VE) at the administrative hearing. AR, p. 115. Plaintiff was given an opportunity to cross-examine the VE on the vocational impact of also needing the cane for balance but declined to do so. Plaintiff's argument is, therefore, waived. See Kepke v. Comm'r of Soc. Sec., 636 F. App'x 625, 636 (6th Cir. 2016) (Although the vocational hypothetical did not contain the specifics contemplated by SSR 96-9p, which had the potential of eroding the occupational base, “[b]ecause Kepke failed to probe this alleged deficiency at the ALJ hearing, she forfeited this argument”); Robinson v. Comm'r of Soc. Sec., No. 1:15- cv-509, 2016 WL 3085762, at *9 (W.D. Mich. June 2, 2016) (collecting authorities for the proposition that “[t]he Sixth Circuit, along with other courts across the country, have generally recognized that a claimant's failure to object to testimony offered by a vocational expert, at the time of the administrative proceeding, waives the claimant's right to raise such issues in the district court”).

         2. The ALJ's RFC finding adequately considered the results of the lumbar MRI from November 2014.

         On November 21, 2014, an MRI was taken of Plaintiff's lumbar spine. Jason White, M.D., interpreted it as revealing “disc herniation at ¶ 1-L2 resulting mild central stenosis.” AR, p. 487. ...


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