Ison v. SSA
Filing
13
MEMORANDUM OPINION & ORDER: Defendant's 12 MOTION for Summary Judgment is GRANTED; Plaintiff's 11 MOTION for Summary Judgment is DENIED. Signed by Judge Joseph M. Hood on 09/29/2011.(DAK)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
CHARITY FAITH ISON
)
)
Plaintiff,
)
) Civil Action No. 5:10cv286-JMH
v.
)
)
MICHAEL J. ASTRUE, COMMISSIONER )
OF SOCIAL SECURITY,
) MEMORANDUM OPINION AND ORDER
)
Defendant.
)
)
**
**
**
**
**
This matter is before the Court on cross motions for summary
judgment [Record Nos. 11 and 12]1 on Plaintiff’s appeal of the
Commissioner’s
denial
of
her
application
for
Disability and Supplemental Security Income.
Social
Security
The Court, having
reviewed the record and being otherwise sufficiently advised, will
deny Plaintiff’s motion and grant Defendant’s motion.
I. FACTUAL AND PROCEDURAL BACKGROUND
Prior to the instant determination, Plaintiff applied for
Disability Insurance Benefits and Supplemental Security Income
(SSI). In a decision dated September 26, 2001, Plaintiff was found
to be disabled due to depression with an onset date of May 1, 1995.
(TR
19,
21,
48,
60).
Subsequently,
Plaintiff’s
disability
insurance benefits were discontinued as of December 1, 2005,
1
These are not traditional Rule 56 cross motions for
summary judgment. Rather, they are procedural devices used by the
Court to obtain the views of the parties regarding the sufficiency
of the evidence contained in the administrative record developed
before the Commissioner.
following an initial disability review determination of medical
improvement.
Administrative law judge (“ALJ”) Roger L. Reynolds,
held a hearing and issued a decision finding that Plaintiff’s
disability ended on December 1, 2005, and she had not become
disabled again since this date.
(TR 19-28).
The Appeals Council
denied Plaintiff’s request for review (TR 6-10), rendering the
ALJ’s decision final.
Plaintiff exhausted her administrative
remedies and timely filed this action.
At the time of the ALJ’s decision, Plaintiff was 34 years old.
(TR 418). She graduated from high school, and she worked on an
assembly line and as a certified nurse’s aide in 1994 and 1995. (TR
155, 418, 426).
In 1997, Plaintiff reported using marijuana on a
daily basis for several years, and denied use of any other illicit
drugs.
(TR 261).
In 2002, she completed roughly 30 credit hours
at Lees College. (TR 426). Plaintiff alleges continued disability
due to nerves, anxiety, back pain, and because her spleen was
removed after a motor vehicle accident in 1992.
422).
(TR 60, 69, 94,
The ALJ determined, following his consideration of the
evidence and testimony compared with the most recent favorable or
“comparison
following
point
severe
decision”
(“CPD”),
impairments:
that
Plaintiff
polysubstance
abuse
had
in
the
alleged
remission, rule out borderline intellectual functioning, neck and
low back pain of uncertain etiology.
(TR 21).
depression was no longer a severe impairment.
2
The ALJ found that
(TR 21).
As of
December 1, 2005, Plaintiff had the residual functional capacity
(RFC) to perform a modified range of light work, such that: (1) she
could occasionally climb ramps or stairs, but no climbing ladders,
ropes, or scaffolds; (2) she could not have concentrated exposure
to vibration or hazardous machinery; (3) she was capable of
entry-level work with simple, repetitive procedures; (4) without
independent planning or goal setting; (5) without frequent changes
in work routine; (6) without detailed or complex problem-solving;
and
(7)
she
needs
to
be
in
a
primarily
in
object-focused
environment with only occasional interaction with the general
public. (TR 24). Relying on the plaintiff’s work history and RFC,
the ALJ elicited testimony from a vocational expert that Plaintiff
could perform light or sedentary jobs, such as hand packer,
assembler, laborer, grader/sorter, and surveillance monitor, that
exist in significant numbers nationally. (TR 435-36). Considering
the vocational expert’s testimony, the ALJ found that, as of
December 1, 2005, Plaintiff was no longer disabled under the Act.
(TR 26-28, Finding Nos. 9-14).
In this appeal, Plaintiff argues that the decision is not
based on substantial evidence because the ALJ mischaracterized the
evidence presented, that the ALJ failed to develop the medical
record appropriately and that the ALJ erred by failing to find a
severe mental impairment or that the Plaintiff met a Listing 1.04
impairment.
The plaintiff further argues that the ALJ failed to
3
correctly apply the definition of “medical improvement,” failed to
provide an accurate hypothetical question to the vocational expert
and
failed
to
give
adequate
consideration
to
the
vocational
expert’s opinion that Plaintiff’s impairments would remove her from
competitive employment considering an adequate hypothetical.
The
Commissioner contends that the ALJ’s determination was supported by
substantial evidence in all relevant respects.
II. OVERVIEW OF THE ALJ HEARING
In determining whether a claimant is disabled in cases such as
this, the ALJ conducts the following analysis:
1) Is the claimant currently engaged in substantial
gainful activity? If yes, and any applicable trial work
period has been completed, the claimant’s disability has
ceased for the purposes of a Title II claim. If no,
proceed to Step 2. See 20 CFR 404.1594(f)(1). For a Title
XVI claim, engaging in substantial gainful activity is
not a factor in determining whether a disability
continues. See 20 CFR 416.994(b)(5).
2) In Step 2 for Title II claims and the first step for
Title XVI claims, does the claimant have an impairment or
combination of impairments which meets or medically
equals the criteria of an impairment listed in 20 CFR
404, Subpart P, Appendix 1? See 20 CFR 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925, and 416.926. If
yes, then disability continues. See 20 CFR 404.1594(f)(2)
and 416.994(b)(5)(I).
3) In Step 3 for Title II claims and Step 2 for Title XVI
claims, has medical improvement occurred? See 20 CFR
404.1594(f)(3)
and
416.994(b)(5)(ii).
If
medical
improvement has occurred, proceed to Step 4 in Title II
claims and Step 3 in Title XVI claims. If no medical
improvement has occurred, skip to Step 5 in Title II
claims and Step 4 in Title XVI claims. Id.
4) In Step 4 for Title II claims and Step 3 for Title XVI
claims, is any medical improvement related to the ability
4
to
work.
See
20
CFR
404.1594(f)(4)
and
416.994(b)(5)(iii). If yes, skip to Step 6 in Title II
claims and Step 5 in Title XVI claims.
5) In Step 5 for Title II claims and Step 4 for Title XVI
claims, does an exception to medical improvement apply?
See 20 CFR 404.1595(f)(5) and 416.994(b)(5)(iv). There
are two groups of exceptions. For Title II claims, these
are found at 20 CFR 404.1594(d) and 404.1594(e). For
Title XVI claims, these are found at 20 CFR 416.994(b)(3)
and 416.994(b)(4). If one of the first group of
exceptions applies, proceed to Step 6 for Title II claims
and Step 5 for Title XVI claims. If one of the second
group of exceptions applies, the disability has ceased.
If no exceptions apply, the disability continues.
6) In Step 6 for Title II claims and Step 5 for Title XVI
claims, are all of the claimant’s current impairments
severe in combination? See 20 CFR 404.1594(f)(6) and
416.994(b)(5)(v). If current impairments in combination
do not significantly limit the claimant’s ability to do
basic work activities, the disability has ceased. If they
do, proceed to Step 7 for Title II claims and Step 6 for
XVI claims.
7) In Step 7 for Title II claims and Step 6 for Title XVI
claims, what is the claimant’s residual functional
capacity based on current impairments and can the
claimant perform past relevant work? See 20 CFR
404.1594(f)(7) and 416.994(b)(5)(iv). Of the claimant has
the capacity to perform past relevant work, the
disability has ceased. If not, proceed to the last step.
8) In the last step for both Title II claims and Title
XVI claims, does work exist that the claimant can
perform,
given
residual
functional
capacity
and
considering claimant’s age, education, and past work
experience?
See
20
CFR
404.1594(f)(8)
and
416.994(b)(5)(vii). If claimant can perform other work,
the disability has ceased. If claimant cannot perform
other work, the disability continues. Although a claimant
continues to have the burden of proving disability at
this step, a limited burden of going forward with the
evidence shifts to the Social Security Administration. In
order to support a finding that a claimant’s disability
has
ended
at
this
stage,
the
Social
Security
Administration is responsible for national economy that
the claimant can perform, given residual functional
5
capacity, age, education, and work experience.
III. STANDARD OF REVIEW
In reviewing the ALJ’s decision to deny disability benefits,
the Court may not try the case de novo, nor resolve conflicts in
the evidence, nor decide questions of credibility. Cutlip v. Sec’y
of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994).
Instead, judicial review of the ALJ’s decision is limited to an
inquiry
into
whether
the
ALJ’s
findings
were
supported
by
substantial evidence, see 42 U.S.C. § 405(g), Foster v. Halter, 279
F.3d 348, 353 (6th Cir. 2001), and whether the ALJ employed the
proper legal standards in reaching his conclusion.
Landsaw v.
Sec’y of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986).
Substantial evidence is 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, 25
F.3d at 286.
IV. ANALYSIS
The ALJ properly considered the medical evidence in the record
and afforded appropriate weight to the medical opinions contained
therein.
Plaintiff takes issue with the ALJ's decision to afford less
weight to the opinions of neurologist Christa U. Muckenhausen, M.D.
and
Scott
B.
Arnett,
M.D.,
a
family
physician.
Muckenhausen and Arnett were one-time examiners.
Both
Drs.
Thus, their
opinion is not afforded the same special deference or weight as
6
that of a treating physician.
Additionally, the ALJ may assign
different weight to an opinion based on the opinion's consistency
with the overall record on review.
See 20 C.F.R. § § 416.97(d)(4),
404.1527(d)(4).
It is the ALJ’s responsibility to assess Plaintiff’s RFC. See
20 C.F.R. §§ 404.1546(c), 416.946(c).
The ALJ may consider
opinions from medical sources in making a determination regarding
Plaintiff’s RFC, but the final responsibility for assessing such an
issue
rests
with
the
finder
of
fact.
404.1527(e)(2), 416.927(e)(2); SSR 96-5p.
See
20
C.F.R.
§§
While the opinions of
treating physicians are entitled to much deference, see Warner v.
Comm’r of Social Security, 375 F.3d 387, 390 (6th Cir. 2004), the
deference given to any particular physician’s opinion depends upon
the examining and treating relationship the medical source had with
the claimant, the evidence the medical source presents to support
his opinion, how consistent the opinion is with the record as a
whole, the specialty of the medical source, and other factors. See
20 C.F.R. § 404.1527(d); see also Walters v. Comm’r of Social
Security, 127 F.3d 525, 529-30 (6th Cir. 1997); Smith v. Comm’r of
Social Security, 482 F.3d 873 (6th Cir. 2007).
Furthermore,
opinions on some issues, such as whether the claimant is disabled
and the claimant's RFC, "are not medical opinions, . . . but are,
instead, opinions on issues reserved to the Commissioner because
they are administrative findings that are dispositive of a case;
7
i.e.,
that
would
direct
the
determination
or
decision
of
disability." 20 C.F.R. § 404.1527(e); see Social Security Ruling
(SSR) 96-5p. As the Sixth Circuit has stated, "[t]he determination
of disability is ultimately the prerogative of the Commissioner,
not the treating physician.”
Warner, 375 F.3d at 391.
Based upon the medical evidence in the record, the majority of
Plaintiff’s treatment occurred between 1992 and 2000, which is the
period covered by the CPD decision.
The last note regarding
Plaintiff in the Comprehensive Care Center records was on February
21, 2001, following a cancelled appointment in January, 2001, which
simply states that the Plaintiff is “no longer seeking services.”
Subsequently, Plaintiff completed 30 credit hours at Lees College
in Jackson, Kentucky and was married.
Despite attending college and getting married, as well as
evidence of Plaintiff’s other activities outside of the home,
Plaintiff claims that she was unwilling to leave the house to seek
medical treatment for her back or her depression due to her mental
condition.
In her continuing disability interview in May, 2005,
Plaintiff indicated that she watched television, feeds fish, goes
to church and visits with neighbors.
She also admitted during the
hearing that she does go shopping and socializes.
Plaintiff did not seek any medical treatment until after she
was
notified
that
cessation
proceedings
had
begun.
With
the
exception of the consultive exams arranged by the Commissioner or
8
her attorney in connection with this disability insurance benefits
and
supplement
security
income
eligibility
review,
the
only
treatment records from after the CPD were normal lumbar x-rays at
Kentucky River Medical Center in June 2005, and evidence that she
complained of lower back pain in October 2005.
The hospital
physician reported the following psychosocial findings during an
exam in October 2005: (1) normal and appropriate behavior for age
and situation; (2) adequate support systems available, independent
ambulation, and able to perform all activities of daily living
without
assistance;
and
(3)
demonstrates
the
ability
and
willingness to learn. These findings are consistent with the ALJ’s
determination that Plaintiff’s depression had improved.
Examining
physician,
Rita
Ratliff,
consultative examination on August 4, 2005.
M.D.,
performed
a
Although no objective
tests or other medical records were available for her review, Dr.
Ratliff concluded that Plaintiff’s physical examination was normal
and that there was no evidence of motor or neurological deficits,
and Dr. Ratliff did not see any reason that her back pain would
interfere
with
performing
usual
occupational
activities.
No
restrictions were recommended.
Plaintiff first takes issue with the ALJ’s decision to afford
little weight to Dr. Muckenhausen’s opinions.
Plaintiff argues
that it was error for the ALJ to characterize those opinions as
being “taken directly from claimant’s own assertions rather than
9
any objective findings.”
Because the ALJ did not find the extent
of Plaintiff’s claimed limitations to be credible, the ALJ rejected
those recommendations as inconsistent with the record.
Plaintiff
argues that Dr. Muckenhausen reviewed and discussed MRI’s of the
Plaintiff’s cervical and lumbar spine, and that she performed an
examination, thus making it clear that Dr. Muckenhausen relied on
more than just the Plaintiff’s own statements in her evaluation.
However, the ALJ’s explanation indicates that the limitations
listed by Dr. Muckenhausen were taken straight from the Plaintiff’s
own assertions, rather than Dr. Muckenhausen’s review of the record
or own observations.
Thus, despite Plaintiff’s arguments to the
contrary, the ALJ did not mischaracterize the evidence. As the ALJ
noted, however, the limitations described by Plaintiff and noted by
Dr. Muckenhausen were not supported by the evidence in the record
as a whole. The ALJ also expanded on his rationale for discounting
the opinions of Plaintiff’s limitations by Dr. Muckenhausen and Dr.
Arnett.
The cervical and lumbar MRI findings were inconsistent
with severe limitations because the objective findings indicated
only slight disc bulging and “no evidence of nerve root entrapment
or
spinal
stenosis.”
416.927(d)(3).
See
20
C.F.R.
§§
404.1527(d)(3),
Thus, Drs. Arnett and Muckenhausen’s reliance on
Plaintiff’s subjective assertions were but one factor in the ALJ’s
determination to discount the limitations as characterized by these
physicians.
10
Moreover, the ALJ properly rejected the severe physical and
mental
limitations
opined
by
these
one-time
examiners
as
inconsistent with the remainder of the record evidence. See 20
C.F.R. §§ 404.1527(d)(4), 416.927(d)(4). The ALJ noted the lack of
treatment by Plaintiff for any physical or mental condition after
the CPD despite having a medical card/insurance and Dr. Arnett, who
did not review the MRI reports, overstated the lumbar MRI findings
as disc “herniations” rather than the slight disc bulging noted by
Dr. Muckenhausen, who actually reviewed the MRI reports.
Plaintiff also claims that Dr. Arnett’s specialty, as a family
physician,
should
not
have
been
considered
by
determining what weight to give to his opinions.
without merit.
the
ALJ
when
This argument is
Generally, more weight should be given to the
opinions of “specialist about medical issues related to his or her
area of specialty than to the opinion of a source who is not a
specialist.” see 20 C.F.R. §§ 404.1527(d)(5), 416.927(d)(5).
As
Dr. Arnett was not a specialist in mental health, neurology, or
orthopedics, the ALJ correctly considered this in his analysis.
Plaintiff further argues that the ALJ misrepresented the
evidence by stating that Plaintiff qualified as a substitute
teacher
based
upon
her
college
courses.
The
ALJ
relied
on
Plaintiff’s own testimony in making this statement, which was
apparently incorrect.
Nonetheless, the vocational expert did not
rely on any statements regarding Plaintiff’s perceived ability to
11
qualify as a substitute teacher in answering the hypotheticals
posed by the ALJ.
The ALJ clarified that Plaintiff had not taken
a test, was not certified, and had never actually worked as a
substitute teacher. Therefore, given that the hypothetical at issue
expressly instructed the vocational expert to assume a person with
the same age, education, and past work experience as Plaintiff,
Plaintiff’s claim that the ALJ did not accurately describe her
education and work background is without merit.
Plaintiff further argues that the ALJ mischaracterized the
record by stating that there was evidence that Plaintiff worked
following her determination of disability.
This conclusion was
based on a note by Dr. Haas, which indicated that Plaintiff had not
been able to return to work after a car accident in 2000.
Plaintiff has been disabled since 1995 and, outside of Dr. Haas’
note, there is no evidence that she worked since that time.
That
said, this Court agrees with the defendant that, even assuming the
Plaintiff meant that she did not work since 1995 when she was
talking to Dr. Haas, any misstatement in the record or in the ALJ’s
assumptions was harmless in this regard.
evidence underlying the ALJ’s analysis.
There is substantial
Plaintiff does not argue,
and this Court does not find, that the ALJ based the determination
on Plaintiff’s alleged work history after 1995 or that the result
would have differed if this conclusion had not been drawn.
The ALJ did not err by finding that Plaintiff did not suffer from
a severe mental impairment and properly applied the medical
12
improvement standard.
The ALJ’s finding that, as of December 1, 2005, Plaintiff’s
depression was no longer a severe impairment is supported by
substantial record evidence, such as examining psychiatrist Dr.
Haas concluded that Plaintiff exhibited no signs or symptoms of a
psychotic or organic mental disorder in July of 2005; reviewing
psychologist Ann Demaree, Ph.D., also noted the absence of a mental
impairment in July 2005; in October 2005, the hospital physician
reported normal psychosocial exam findings; Dr. Demaree noted in
November of 2005 that Plaintiff demonstrated significant medical
improvement since the CPD (Tr. 346); and reviewing psychologist
Edward Stodola, Ph.D., opined the absence of a mental impairment in
February, 2006. Significantly, Plaintiff treated at Comprehensive
Care Center a few times each month from July 1992 to June 1993, and
sporadically in 1995, 1997, and 2000, however, she did not seek or
receive any mental health treatment after the CPD despite having a
medical card/insurance. Indeed, after the CPD, Plaintiff completed
30 college credit hours, got married, and engaged in activities
such as going to church and occasionally visiting with neighbors,
which are all inconsistent with disabling depression.
Plaintiff relies on her own statement and testimony to support
her contention that she remains severely impaired.
Although
subjective complaints or symptoms are considered, the record must
contain objective medical evidence establishing the underlying
13
mental disorder.
See 20 C.F.R. §§ 404.1508, 416.908.
While
Plaintiff relies on one time examiners for her position, the ALJ
properly weighed the opinions offered by Dr. Muckenhausen and Dr.
Arnett and found that they were inconsistent with the with the
weight of the other record evidence, including the opinions of
mental health specialists.
The ALJ properly determined that Plaintiff did not meet or equal
Listing 1.04
The Listing of Impairments, 20 C.F.R., Part 404, Subpart P,
Appendix 1 (Listings or Listing), describe each major body system
impairment considered severe enough to preclude a person from any
gainful activity regardless of age, education, or work experience.
See
20
C.F.R.
§§
404.1525(a),
416.925(a).
Because
vocational
factors are not considered, Plaintiff must present precise clinical
evidence that her impairments meet Listing 1.04. See 20 C.F.R. §§
404.1520(d), 416.920(d).
“At the third step in the disability
evaluation process, a claimant will be found disabled if his
impairment meets or equals one of the listings in the Listing of
Impairments.”
Reynolds,
2011 WL 1228165, at *2 (citing 20 C.F.R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); Turner v. Comm'r of
Soc. Sec., 381 F.App’x 488, 491 (6th Cir. 2010)).
If a claimant
meets or equals one of the listings, then the claimant is deemed
conclusively
disabled
and
the
analysis
stops
at
that
point.
Further, whether Plaintiff meets the requirements of Listing 1.04
is an issue “reserved to the Commissioner” because it is an
14
administrative finding that is dispositive of the case. 20 C.F.R.
§§ 404.1527(e), 416.927(e).
Plaintiff fails to identify which of the discreet requirements
Plaintiff allegedly meets to qualify for Listing 1.04.
Listing
1.04, in pertinent part, requires the following:
1.04
Disorders of the spine (e.g., herniated nucleus
pulposus,
spinal
arachnoiditis,
spinal
stenosis,
osteoarthritis,
degenerative
disc
disease,
facet
arthritis, vertebral fracture), resulting in compromise
of a nerve root (including the cauda equina) or the
spinal cord. With:
A.
Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion
of the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or
reflex loss and, if there is involvement of the lower
back, positive straight-leg raising test (sitting and
supine); or
B.
Spinal arachnoiditis, confirmed by an operative note
or pathology report of tissue biopsy, or by appropriate
medically acceptable imaging, manifested by severe
burning or painful dysesthesia, resulting in the need for
changes in position or posture more than once every 2
hours; or
C.
Lumbar
spinal
stenosis
resulting
in
pseudoclaudication,
established
by
findings
on
appropriate medically acceptable imaging, manifested by
chronic nonradicular pain and weakness, and resulting in
inability to ambulate effectively, as defined in 1.00B2b.
20 C.F.R. pt. 404, subpt. P, app. 1, § 1.04.
As
Defendant
points
out,
even
assuming
a
diagnosis
of
degenerative disc disease, which is not clearly evident from the
record, Plaintiff fails to demonstrate any of the required evidence
of nerve root compression, spinal arachnoiditis, or lumbar spinal
15
stenosis, thus, this argument is without merit. See 20 C.F.R. Part
404, Subpt. P, App. 1, §§ 1.04(A)-(C); 20 C.F.R. §§ 404.1525(c)(3),
416.925(c).
The ALJ developed a full and fair record.
The ALJ’s duty to develop a full and fair record does not
extend so far as to require the ALJ to act as the claimant’s
advocate.
In this case, Plaintiff participated at the hearing and
was fully represented by counsel.
Thus, the ALJ did not have a
special duty to develop the record in this case, as the ALJ might
have had in a case in which the claimant was not represented by
counsel.
Duncan v. Sec’y of Health and Human Servs., 801 F.2d 847,
856 (6th Cir. 1986).
producing
medical
Moreover, the claimant is responsible for
evidence
to
establish
the
existence
of
an
impairment, as well as its severity, although the Commissioner will
make every reasonable effort to assist the claimant with obtaining
his reports if given permission to do so.
See 20 C.F.R. § §
404.1512(c), 416.912(c); 20 C.F.R. § § 404.1512(d), 416.912(d).
In this case, Plaintiff was represented by counsel at all
stages of the hearing.
Plaintiff’s counsel was provided with a
list of the evidentiary exhibits and provided an opportunity to
provide additional or supplemental records as necessary.
When
Plaintiff mentioned during her hearing testimony that additional
records may exist, the ALJ asked for a copy of the records.
The
attorney’s response indicated that such records, if they existed,
16
were
not
likely
circumstances,
to
it
affect
appears
the
that
proceedings.
the
ALJ
filled
Under
his
these
duty
to
adequately develop the record based on the information provided.
The vocational expert
The ALJ properly posed hypotheticals to the vocational expert,
Betty Hale, and properly relied on the answers provided in the
vocational expert’s testimony.
Based on a hypothetical accurately
describing Plaintiff’s vocational profile (age, education, and past
relevant work) and RFC as of December 1, 2005, for a modified range
of light work, the expert testified that Plaintiff could perform
light or sedentary jobs, such as hand packer, assembler, laborer,
grader/sorter, and surveillance monitor, that exist in significant
numbers nationally. Considering the vocational expert’s testimony,
the ALJ found that, as of December 1, 2005, Plaintiff was no longer
disabled
under
the
Act.
While
Plaintiff
claims
the
ALJ’s
hypothetical did not accurately describe her education and past
work experience, the record confirms that Plaintiff graduated from
high school and completed 30 hours of college courses.
The
vocational expert correctly noted that Plaintiff’s last two jobs
were as an assembler and nurse aide in 1994 and 1995.
Further,
upon questioning Plaintiff and the vocation expert prior to posing
the hypothetical, the ALJ clarified that Plaintiff had not taken a
test, was not certified, and had never actually worked as a
substitute teacher.
Accordingly, given that the hypothetical at
17
issue instructed the vocational expert to assume a person withe the
same
age,
education,
and
past
work
experience
as
Plaintiff,
Plaintiff’s claim that the ALJ did not accurately describe her
education and work background lacks merit.
While a hypothetical
should accurately describe a claimant’s abilities and overall
physical and mental state based on the record, the hypothetical “is
required to incorporate only those limitations accepted as credible
by the finder of fact [ALJ].” Casey v. Sec’y of Health and Human
Servs.,
987
F.2d
1230,
1235
(6th
Cir.
1993).
Accordingly,
Plaintiff’s claim that the operative hypothetical should have
included the severe physical and mental limitations opined by
one-time examiners Dr. Muckenhausen or Dr. Arnett, which the ALJ
discounted.
V. CONCLUSION
Accordingly, and for the foregoing reasons, IT IS ORDERED:
(1) That Defendant’s motion for summary judgment [Record No.
12] be, and the same hereby is, GRANTED; and
(2) That Plaintiff’s motion for summary judgment [Record No.
11] be, and the same hereby is, DENIED.
This the 29th day of September, 2011.
18
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