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Kidd v. Berryhill

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

June 19, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Robert E. Wier United States District Judge

         Jeffrey Kidd appeals the Commissioner's denial of his application for Disability Insurance Benefits and Supplemental Security Income (collectively, “benefits”). The parties filed dueling summary judgment motions. For the reasons that follow, the Court GRANTS the Commissioner's motion (DE #18) and DENIES Kidd's motion (DE #15). Claimant's mostly process-based complaints have no merit, and the Commissioner properly applied relevant legal standards in denying Kidd benefits via a substantiated ruling.


         Kidd is currently 57 years old. See, e.g., R. at 44. He alleges disability beginning on December 18, 2012. See R. at 190. Kidd applied for benefits in late 2014. R. at 184-93. The SSA denied his claims initially on March 12, 2015, see R. at 117-20, and upon reconsideration on April 24, 2015. See R. at 124-26. Kidd then filed a written request for a hearing on April 29, 2015. R. at 138-39. Administrative Law Judge (ALJ) Bonnie Kittinger held a hearing on the application on October 14, 2016. R. at 39-66. At the hearing, Kidd testified; Gregory Schmitt represented him. R. at 42-60. Impartial vocational expert (VE) Martha Goss[1] also testified. R. at 60-65. The ALJ subsequently denied Kidd's claims on January 10, 2017. R. at 11-23. The Appeals Council denied review and thus upheld the ALJ's decision on September 6, 2017. R. at 1-3.

         The ALJ made several particular findings in the required sequence. She determined that Kidd did not engage in substantial gainful activity from December 18, 2012, through January 10, 2017, the date of decision. R. at 14. The ALJ next determined that Kidd has two severe impairments. Id. However, ALJ Kittinger then found that Kidd did “not have an impairment or combination of impairments that [met] or medically equal[ed] the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” R. at 15. The ALJ further made a detailed residual functional capacity (RFC) finding. R. at 17-20. Although ALJ Kittinger found Kidd “unable to perform any of his past relevant work, ” the ALJ determined that “there are jobs that exist in significant numbers in the national economy that [Kidd] can perform[.]” R. at 20-22. Based on all these considerations, the ALJ ruled that Kidd was not “under a disability . . . from December 18, 2012, through the date of th[e] decision, ” January 10, 2017. R. at 22. Unsatisfied with the result of the SSA's administrative process, Kidd turned to federal district court for review.

         11. ANALYSIS

         A. Standard of Review

         The Court has carefully read the ALJ's decision, the administrative hearing transcript, and the entire administrative record. Judicial review of the ALJ's decision to deny disability benefits is a limited and deferential inquiry into whether substantial evidence supports the denial's factual decisions and whether the ALJ properly applied relevant legal standards. Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009); Jordan v. Comm'r of Soc. Sec., 548 F.3d 417, 422 (6th Cir. 2008); Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989) (citing Richardson v. Perales, 91 S.Ct. 1420, 1427 (1971)); see also 42 U.S.C. § 405(g) (providing and defining judicial review for Social Security claims) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive[.]”).

         Substantial evidence means “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); see also Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004). The Court does not try the case de novo, resolve conflicts in the evidence, or assess questions of credibility. Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007). Similarly, the Court does not reverse findings of the Commissioner or the ALJ merely because the record contains evidence-even substantial evidence-to support a different conclusion. Warner, 375 F.3d at 390. Rather, the Court must affirm the ALJ's decision if substantial evidence supports it, even if the Court might have decided the case differently if in the ALJ's shoes. See Longworth v. Comm'r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005); Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).

         The ALJ, when determining disability, conducts a five-step analysis. See Preslar v. Sec'y of Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994); 20 C.F.R. § 404.1520(a)(4). At Step 1, the ALJ considers whether the claimant is performing substantial gainful activity. See Preslar, 14 F.3d at 1110. At Step 2, the ALJ determines whether one or more of the claimant's impairments are severe. Id. At Step 3, the ALJ analyzes whether the claimant's impairments, alone or in combination, meet or equal an entry in the Listing of Impairments. Id. At Step 4, the ALJ determines RFC and whether the claimant can perform past relevant work. Id. The inquiry at this stage is whether the claimant can still perform that type of work, not necessarily the specific past job. See Studaway v. Sec'y of Health & Human Servs., 815 F.2d 1074, 1076 (6th Cir. 1987). Finally, at Step 5, when the burden shifts to the Commissioner, if the claimant cannot perform past relevant work, the ALJ determines whether significant numbers of other jobs exist in the national economy that the claimant can perform, given the applicable RFC. See Preslar, 14 F.3d at 1110; 20 C.F.R. § 404.1520(a)(4). If the ALJ determines at any step that the claimant is not disabled, the analysis ends at that step. Mowery v. Heckler, 771 F.2d 966, 969 (6th Cir. 1985); 20 C.F.R. § 404.1520(a)(4).

         When reviewing the ALJ's application of the legal standards, the Court gives deference to her interpretation of the law and reviews the decision for reasonableness and consistency with governing statutes. Whiteside v. Sec'y of Health & Human Servs., 834 F.2d 1289, 1292 (6th Cir. 1987). In a Social Security benefits case, the agency's construction of the statute should be followed “unless there are compelling indications that it is wrong.” Merz v. Sec'y of Health & Human Servs., 969 F.2d 201, 203 (6th Cir. 1992) (quoting Whiteside, 834 F.2d at 1292).[2]

         B. The ALJ did not reversibly err in Step 5.

         Kidd's sole, overarching argument (though it has various subparts) is that the ALJ “erred in relying on vocational expert testimony to fulfill his [sic] step 5 burden [3] without adequately addressing Plaintiff's post-hearing evidence and objections challenging the vocational expert's testimony.” DE #16, at 1.[4] Kidd says that, post-ALJ-hearing, he filed a memorandum, along with “several exhibits, ” that are purportedly “facially relevant to the issue of the ALJ's step 5 burden.” Id. at 4. He contends that Judge Kittinger improperly “failed to acknowledge, let alone address” these materials. Id. Claimant labels this alleged procedural treatment “clear error, requiring remand.” Id. The Acting Commissioner generally responds that the “ALJ reasonably relied on the vocational expert's testimony as part of her finding of non-disability” and that Kidd's specific “contentions are misplaced.” DE #18, at 3-4. The Court, after reviewing the ALJ's Step 5 treatment, considers each sub-argument in turn.

         Judge Kittinger's Step 5 analysis spans three pages. R. at 20-22. “To determine the extent to which” Kidd's nonexertional limitations “erode[d] the occupational base of unskilled work at all exertional levels, ” the ALJ asked VE Goss “whether jobs exist in the national economy for an individual with [Kidd]'s age, education, work experience, and [RFC].” R. at 21. Goss “testified that given all of these factors [Kidd] would be able to perform the requirements of representative occupations such as” (1) sorter / packer (DOT 529.686-034), (2) cleaner (DOT 323.687-010), and (3) assembly / bench worker (DOT 737.687-074). Id. ALJ Kittinger “accept[ed] that testimony and f[ound] that it is consistent with the information contained in the Dictionary of Occupational Titles.” Id.

         In her written decision, the ALJ explicitly recognized Kidd's comprehensive “object[ion] to the sufficiency of the vocational testimony of Martha Goss, ” made in differing ways “[d]uring the hearing and in a post-hearing memorandum, ” in which he argued “in part that the testimony was based on unreliable information and that Ms. Goss lacked sufficient experience and or [sic] expertise to offer the opinions she provided.” R. at 21 (emphasis added) (citing Exhibit 21E, at pp. 1, 5, 6, and 8). Judge Kittinger also acknowledged Kidd's request for “a supplemental hearing to further assert the challenge to the vocational evidence.” Id. ALJ Kittinger ultimately “overruled” Kidd's “objection” and “denied” the “request for a supplemental hearing.” Id.

         Judge Kittinger proceeded to find Goss “to be qualified, based on her training and experience, ” under applicable “qualifications and standards, ” to “testify in disability hearings.” Id. (citing Exhibit 18E). Referencing the Code of Federal Regulations and S.S.R. 00-4p, 2000 WL 1898704 (Dec. 4, 2000), the ALJ found “that the source material referred by Ms. Goss and the evidence which she provided complies with such guidelines and is accordingly reliable.” Id. Finally, ALJ Kittinger, noting Kidd's intra- and post-hearing objection, held that Kidd received a hearing compliant with due process requirements. Id. In summary, “[b]ased on the testimony of the vocational expert, ” and considering Kidd's “age, education, work experience, and residual functional capacity, ” the ALJ found Kidd “capable of making a successful adjustment to other work that exists in significant numbers in the national economy.” R. at 22.

         Against this treatment, Kidd[5] first charges that the ALJ failed “to address evidence related to the social functioning requirement in the jobs named by the” VE. DE #16, at 4-7; see also Id. at 6 (“[T]he ALJ failed to even acknowledge this evidence.”); id. at 7 (arguing that a supplementary report went “wholly unaddressed by the ALJ's decision”). In fact, however, the ALJ specifically cited the two pages of the post-hearing memorandum that Kidd baselessly argues she did not. See R. at 21 (ALJ citing Exhibit 21E, at 5, 6, which corresponds to R. at 321-22, which Kidd cites at DE #16, at 5). Later, the ALJ explicitly referenced Kidd's “[p]ost-hearing brief, ” which “fully set forth his objections, ” and indicated consideration of the entirety. See R. at 21 (citing “Exhibit 21E, pp. 1-46”). Judge Kittinger, thus, did consider this argument and evidence (including the supplementary report)-she rejected it, but she undoubtedly addressed it. Kidd understandably desires a different outcome, but his procedural argument of simple non-consideration is plainly wrong.

         Kidd's real request, it seems, is for the Court “to hold that the ALJ erred when she did not consult the vocational expert [i.e., Goss] with respect to” the competing Santagati report. DE #16, at 7. Paula Santagati, per Claimant, is “a Senior Vocational Rehabilitation Counsel for the Massachusetts Rehabilitation Commission.” R. at 321. Santagati purports to offer her own most generalized (and quite radical)[6] “vocational opinion” that, as of October 2015, “a limitation of occasional interaction with coworkers and supervisors precludes all work as the training and probationary period for any job would require more than occasional interaction with co-workers and supervisors.” R. at 360. Santagati said utterly nothing specific about Kidd's life, health, ability to work, or case.

         Again, Claimant does not challenge the RFC determination (i.e., the basis for the ALJ's hypothetical to Goss) of, as relevant here, Kidd's inability to have “more than occasional interaction with supervisors and coworkers[.]” See R. at 17. Kidd simply claims that the ALJ was required to examine the testifying VE about another “vocational opinion.” See DE #16, at 4-5 (characterizing Santagati's report as providing “rebuttal vocational evidence”). Claimant cites no authority requiring such a VE inquiry, and the Court has independently found none. Goss stated her own impartial, professional opinion, regarding Kidd's individual case. Claimant could have extensively cross-examined her on the topics he now raises, but he did not.[7] [The Santagati report existed at the time of the hearing.] The ALJ had no duty to convene a second hearing to pepper the VE with questions that Kidd could have raised initially. See Lindsley v. Comm'r of Soc. Sec., 560 F.3d 601, 606 (6th Cir. 2009) (rejecting claim that an ALJ “did not interrogate VE Breslin with sufficient rigor”: “Lindsley was afforded a full opportunity to cross-examine Breslin. The ALJ had no duty under S.S.R. 00-4p to interrogate him further.”); Ferguson v. Comm'r of Soc. Sec., 628 F.3d 269, 275 (6th Cir. 2010) (“The ALJ has discretion to determine whether additional ...

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