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Williams v. Berryhill

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

July 8, 2019

MANDY N. WILLIAMS PLAINTIFF
v.
NANCY A. BERRYHILL, Acting 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 Supplemental Security Income (SSI) benefits. The fact and law summaries of Plaintiff and Defendant are at Dockets # 12 and 17. 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 Plaintiff's arguments are unpersuasive and the Administrative Law Judge's (ALJ's) decision is supported by substantial evidence, the Court will AFFIRM the Commissioner's final decision and DISMISS Plaintiff's complaint.

         Plaintiff's first and second arguments

         The ALJ found that Plaintiff suffers from the following severe, or vocationally significant, impairments: degenerative disc disease of the lumbar spine, chronic obstructive pulmonary disease (COPD), myofascial pain syndrome, depression, and anxiety. (Administrative Record (AR) at 13.)

         Plaintiff makes three arguments. First, she argues that the ALJ erred in not finding that she suffers from severe cervical degenerative disc disease, right shoulder impairment, and post-traumatic stress disorder (PTSD). Plaintiff's second argument is related to her first argument. She argues that the ALJ's failure to recognize these impairments as severe impairments constitutes reversible error because the impairments resulted in additional limitations not included in the ALJ's residual functional capacity (RFC) finding. The Court will consider Plaintiff's first and second arguments as they relate to each allegedly severe impairment.

         Cervical degenerative disc disease

         Plaintiff argues that her cervical degenerative disc disease is a severe impairment that results in “sensory and motor loss of the left hand” and limits her ability “to use her [left] hands and arms for grasping and manipulation.” (Docket # 12 at 2.) However, she made no such claim in her disability application or at the administrative hearing. (AR at 30-65, 267-76.) At the administrative hearing, Plaintiff's counsel gave an opening statement and examined Plaintiff regarding her impairments.[1] (AR at 36-53.) Physically, the focus was Plaintiff's alleged inability to stand/walk for long periods of time. (Id.) Plaintiff did not mention any hand, grasping, or manipulative limitation. The controlling vocational hypothetical contemplated no such limitation. (AR at 61-64.) The vocational expert (VE) was not examined about the effect of any such a limitation on the availability of identified jobs. (Id.) Cross- examination focused on the vocational impact of a need for a sit-stand option. (Id.)

         An ALJ is under no “obligation to investigate a claim not presented at the time of the application for benefits and not offered at the hearing as a basis for disability.” Pena v. Sec'y of Health & Human Servs., 76 F.3d 906, 909 (8th Cir. 1996). “[A]t least when claimants are represented by counsel, they must raise all issues and evidence at their administrative hearings in order to preserve them on appeal.” Meanel v. Comm'r of Soc. Sec., 172 F.3d 1111, 1115 (9th Cir. 1999).

         The Sixth Circuit and this Court have recognized and applied these principles from Pena and Meanel. See e.g. Nejat v. Comm'r, 359 Fed.Appx. 574, 577 (6th Cir. 2009) (“Given Nejat's failure to list obesity in his application and the scant evidence of obesity in the record, the ALJ properly evaluated this alleged condition.”) (citing Pena); Alasmar v. Comm'r, No. 3:16-CV-551-CHL, 2018 WL 1470263, at *6 (W.D. Ky Mar. 26, 2018) (Alasmar waived her claim of disabling dementia for “failing to raise [the] claim in [the] application for benefits and not adducing all relevant evidence at the administrative hearing.”) (citing Pena); Scott v. Comm'r, No. 1:18-CV-00107-HBB, 2019 WL 2505043, at *5 (W.D. Ky. June 17, 2019) (Scott waived her bilateral knee impairment claim because “[t]he administrative record shows that [she] did not notify the ALJ about her bilateral knee condition or allege any limitation in function because of the condition.”) (citing Meanel).

         Plaintiff waived her claim that the ALJ erred in not finding that she suffers from severe cervical degenerative disc disease, which allegedly results in “sensory and motor loss of the left hand” and limits her ability “to use her [left] hands and arms for grasping and manipulation” (Docket # 12 at 2), because she made no such claim in her disability application or at the administrative hearing.

         Even if it was not waived, Plaintiff's argument is unpersuasive. In July 2015, Plaintiff presented to the emergency room because “left arm still numb - has anxiety.” (AR at 598). In August 2015, Barbara Schooley, M.D., noted that Plaintiff “says her [left] arm is numb and can only feel 2 digits … MRI does indicate 2 disc bulges at ¶ 5-6 and C6-7 and [moderate] stenosis at the C6-7 level.” (AR at 804 referencing MRI at ¶ 407.) Dr. Schooley indicated that she “[w]ill refer [Plaintiff] to neurosurgeon [as soon as possible].” (AR at 804.) Plaintiff points to nothing in the administrative record showing that she followed up with a neurosurgeon or was still experiencing left arm numbness in July 2017, when the administrative hearing was held. No. medical source indicated that Plaintiff's impairments cause greater functional limitations than found by the ALJ. The mere diagnosis of an impairment is not indicative of disabling functional limitations or even the existence of a severe impairment satisfying the 12-month duration requirement. See Despins v. Comm'r, 257 Fed.Appx. 923, 930 (6th Cir. 2007) (“The mere existence of those impairments … does not establish that Despins was significantly limited from performing basic work activities for a continuous period of time.”); Higgs v. Sec'y, 880 F.2d 860, 863 (6th Cir. 1988) (“[M]ere diagnosis of arthritis... says nothing about the severity of the condition.”).

         Right shoulder impairment

         Plaintiff waived her claim that the ALJ erred in not finding that she suffers from a severe right shoulder impairment, which allegedly results in “decreased range of motion” and inability “to lift the arm above the shoulder” (Docket # 12 at 2), because she made ...


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