United States District Court, W.D. Kentucky, Bowling Green Division
LISA A. BRAY PLAINTIFF
NANCY A. BERRYHILL, Commissioner of Social Security DEFENDANT
MEMORANDUM OPINION AND ORDER
KING, MAGISTRATE JUDGE
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.
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.
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
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.
makes four arguments challenging the ALJ's RFC finding.
The ALJ's RFC finding adequately considered Plaintiffs
need to use a cane for ambulation.
noted above, the ALJ found that Plaintiff “requires the
use of a cane, for ambulation.” AR, p. 59.
Sec. Rul. (SSR) 96-9p, 1996 WL 374185, at *7
states 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.
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.
reliance on SSR 96-9p is unpersuasive for two reasons.
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.
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”).
The ALJ's RFC finding adequately considered the results
of the lumbar MRI from November 2014.
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. ...