Avery v. Commissioner of Social Security
Filing
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MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 5/6/2014. IT IS HEREBY ORDERED that the final decision of the Commissioner is AFFIRMED, pursuant to 42 U.S.C. § 405(g). This is a final and appealable Order. cc: Counsel (CDR)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:13CV-00121-HBB
JOANNA L. AVERY
PLAINTIFF
VS.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
DEFENDANT
MEMORANDUM OPINION
AND ORDER
BACKGROUND
Before the Court is the complaint (DN 1) of Joanna L. Avery (“Plaintiff”) seeking judicial
review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the Plaintiff
(DN 16) and Defendant (DN 19) have filed a Fact and Law Summary.
Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties have consented to the
undersigned United States Magistrate Judge conducting all further proceedings in this case,
including issuance of a memorandum opinion and entry of judgment, with direct review by the Sixth
Circuit of Appeals in the event an appeal is filed (DN 15). By order entered November 15, 2013,
the parties were notified that oral arguments would be held unless a written request therefor was
filed and granted (DN 14). No such request was filed.
FINDINGS OF FACT
Plaintiff protectively filed an application for disability insurance benefits and supplemental
security income benefits on March 29, 2010 (Tr. 226, 401-402). Plaintiff alleged that she became
disabled on March 1, 2003 as a result of bone deterioration in hips and pelvis, and anxiety and
depression (Tr. 409-410). These claims were denied initially on August 18, 2010, and upon
reconsideration on November 30, 2010 (Tr. 226). Thereafter, Plaintiff filed a written request for a
hearing on January 28, 2011 (Tr. 226). Plaintiff then amended her disability onset date to December
31, 2009 (Tr. 226). On November 16, 2011, Administrative Law Judge Hortensia Haaversen
(“ALJ”) conducted a video hearing from Baltimore, Maryland (Tr. 226). Plaintiff appeared in
Bowling Green and was presented by Mary G. Burchett-Bower, an attorney (Tr. 226). Also present
and testifying was Leah P. Salyers, an impartial vocational expert (Tr. 226).
In a decision dated February 6, 2012, the ALJ evaluated this adult disability claim pursuant
to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 226-236). At
the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since December
31, 2009, the alleged onset date (Tr. 228). At the second step, the ALJ determined that Plaintiff’s
major depressive disorder, pain disorder, anxiety disorder, occipital neuralgia, right cervical and
thoracic facet arthritis, and right subacromial bursitis are “severe” impairments within the meaning
of the regulations (Tr. 228). At the third step, the ALJ concluded that Plaintiff does not have an
impairment or combination of impairments that meets or medically equals one of the listed
impairments in Appendix 1 (Tr. 229).
At the fourth step, the ALJ found Plaintiff has the residual functional capacity to perform
light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except the Plaintiff ambulates
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with a cane; can understand, remember and carry out simple repetitive instructions and tasks; is able
to tolerate stress and pressure of day-to-day employment but should be limited to only low stress job
defined as only occasional decision making and occasional changes in a work setting; is able to
sustain attention and concentration towards the performance of simple repetitive tasks; and she is
able to respond appropriately to supervision, coworkers and work pressures of a low stress job as
previously defined (Tr. 230).
The ALJ further noted that her residual functional capacity
determination was based on the consultative examiner’s opinion and the cane use demonstrated at
the hearing (Tr. 230). The ALJ also concluded that Plaintiff has no past relevant work because there
is no indication that any of her prior jobs were performed at a substantial gainful activity level (Tr.
234).
The ALJ proceeded to the fifth step where he considered Plaintiff’s residual functional
capacity, age, education, and past work experience as well as testimony from the vocational expert
(Tr. 234-236). The ALJ found that Plaintiff is capable of performing a significant number of jobs
that exist in the national economy (Tr. 235). Therefore, the ALJ concluded that Plaintiff has not
been under a “disability,” as defined in the Social Security Act, from December 31, 2009, through
February 6, 2012, the date of the administrative decision.
Plaintiff timely filed a request for the Appeals Council to review the ALJ’s decision. The
Appeals Council denied Plaintiff’s request for review of the ALJ’s decision (Tr. 1-4).
CONCLUSIONS OF LAW
The Social Security Act authorizes payment of Disability Insurance Benefits and
Supplemental Security Income to persons with disabilities. 42 U.S.C. §§ 401 et seq. (Title II
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Disability Insurance Benefits), 1381 et seq. (Title XVI Supplemental Security Income). The term
“disability” is defined as an
[i]nability to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than twelve (12) months.
42 U.S.C. §§ 423(d)(1)(A) (Title II), 1382c(a)(3)(A) (Title XVI); 20 C.F.R. §§ 404.1505(a),
416.905(a); Barnhart v. Walton, 535 U.S. 212, 214 (2002); Abbott v. Sullivan, 905 F.2d 918, 923
(6th Cir. 1990).
The Commissioner has promulgated regulations setting forth a five-step sequential
evaluation process for evaluating a disability claim. See “Evaluation of disability in general,” 20
C.F.R. §§ 404.1520, 416.920. In summary, the evaluation proceeds as follows:
1)
Is the claimant engaged in substantial gainful activity?
2)
Does the claimant have a medically determinable impairment
or combination of impairments that satisfies the duration
requirement and significantly limits his or her ability to do
basic work activities?
3)
Does the claimant have an impairment that meets or
medically equals the criteria of a listed impairment within
Appendix 1?
4)
Does the claimant have the residual functional capacity to
return to his or her past relevant work?
5)
Does the claimant's residual functional capacity, age,
education, and past work experience allow him or her to
perform a significant number of jobs in the national
economy?
Here, the ALJ denied Plaintiff’s claim at the fifth step.
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As previously mentioned, the Appeals Council denied Plaintiff’s request for review of the
ALJ’s decision (Tr. 1-4). At that point, the ALJ’s decision became the final decision of the
Commissioner. 20 C.F.R. §§ 404.955(b), 404.981, 422.210(a); see 42 U.S.C. § 405(h) (finality of
the Commissioner's decision).
Review by the Court is limited to determining whether the findings set forth in the final
decision of the Commissioner are supported by “substantial evidence,” 42 U.S.C. Section 405(g);
Cotton v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993); Wyatt v. Secretary of Health and Human
Services, 974 F.2d 680, 683 (6th Cir. 1992), and whether the correct legal standards were applied.
Landsaw v. Secretary of Health and Human Services, 803 F.2d 211, 213 (6th Cir. 1986).
“Substantial evidence exists when a reasonable mind could accept the evidence as adequate to
support the challenged conclusion, even if that evidence could support a decision the other way.”
Cotton, 2 F.3d at 695 (quoting Casey v. Secretary of Health and Human Serverices, 987 F.2d 1230,
1233 (6th Cir. 1993)). In reviewing a case for substantial evidence, the Court “may not try the case
de novo, nor resolve conflicts in evidence, nor decide questions of credibility.” Cohen v. Secretary
of Health and Human Services, 964 F.2d 524, 528 (6th Cir. 1992) (quoting Garner v. Heckler, 745
F.2d 383, 387 (6th Cir. 1984)).
Residual Functional Capacity Determination
Here, Plaintiff challenges the ALJ’s Finding No. 5, which addresses the fourth step in the
five-step sequential evaluation process promulgated by the Commissioner (DN 16, Plaintiff’s Fact
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and Law Summary at Pages 2-5).1 With regard to Finding No. 5, the ALJ made the following
conclusion:
[T]he undersigned finds that the claimant has the residual functional
capacity to perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except the claimant ambulates with a cane; can
understand, remember and carry out simple repetitive instructions
and tasks; is able to tolerate stress and pressure of day-to-day
employment but should be limited to only low stress job defined as
only occasional decision making and occasional changes in a work
setting; is able to sustain attention and concentration towards the
performance of simple repetitive tasks; and she is able to respond
appropriately to supervision, coworkers and work pressures of a low
stress job as previously defined (Based on the consultative
examiner’s opinion at Exhibit 3F and the cane use demonstrated at
the hearing).
(Tr. 230).
Plaintiff argues that Finding No. 5 is not supported by substantial evidence because the ALJ
failed to properly address restrictions stemming from Plaintiff’s “severe” physical impairments (DN
16, Plaintiff’s Fact and Law Summary at Pages 2-3). Plaintiff points out that the ALJ’s residual
functional capacity assessment only contains a physical restriction regarding ambulating with a cane
and the limitation of light work activity (DN 16, Plaintiff’s Fact and Law Summary at Pages 2-3).
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At the fourth step of the sequential evaluation process, the Administrative Law Judge
makes findings regarding the claimant’s residual functional capacity, the physical and mental
demands of the claimant’s past relevant work, and the claimant’s ability to return to the past
relevant work. See 20 C.F.R. § 416.920(e). The residual functional capacity finding is the
Administrative Law Judge’s ultimate determination of what a claimant can still do despite his or
her physical and mental limitations. 20 C.F.R. §§ 416.945(a), 416.946. This finding is based on
a consideration of medical source statements and all other evidence in the case record. 20 C.F.R.
§§ 416.929, 416.945(a). Thus, in making the residual functional capacity finding the
Administrative Law Judge must necessarily assign weight to the medical source statements in
the record as well as consider the subjective allegations of the claimant and make credibility
findings. 20 C.F.R. §§ 416.927(c), 416.929; Social Security Ruling 96-7p.
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In essence, Plaintiff points out that the ALJ indicates that Plaintiff has “severe” physical
impairments, but fails to identify specific physical restrictions resulting and therefore, remand is
necessary for clarification of restrictions resulting from the “severe” impairments (DN 16, Plaintiff’s
Fact and Law Summary at Page 3). Plaintiff does not make any arguments with regard to the mental
limitations assessed in the ALJ’s residual functional capacity finding (DN 16, Plaintiff’s Fact and
Law Summary at Pages 2-5). In opposition, the Defendant asserts that Finding No. 5 is supported
by substantial evidence, because the ALJ properly determined Plaintiff’s physical limitations and
residual functional capacity in light of the record as a whole (DN 19, Defendant’s Fact and Law
Summary at Page 4).
The residual functional capacity finding is the ALJ’s ultimate determination of what Plaintiff
can still do despite her physical and mental limitations. See 20 C.F.R. §§ 416.945(a), 416.946. The
ALJ bases her residual functional capacity finding on a review of the record as a whole, including
Plaintiff’s credible testimony and the opinion from the claimant’s medical sources. See 20 C.F.R.
§§ 404.1545(a)(1), 416.945(a)(1). Contrary to Plaintiff’s assertion, the ALJ properly considered the
record as a whole and acknowledged Plaintiff’s physical limitations in determining the residual
functional capacity (Tr. 230-234).
Plaintiff argues that the ALJ erred by including only the need for a cane in her restrictions
relating to her physical impairments (DN 16, Plaintiff’s Fact and Law Summary at Pages 2-3). Here,
the ALJ found that Plaintiff has the following severe physical impairments: occipital neuralgia, right
cervical and thoracic facet arthritis, and right subacromial bursitis (Tr. 228). The ALJ further found
that Plaintiff requires the use of a cane in light of the medical evidence in the record (Tr. 230-234).
However, the ALJ did not find that Plaintiff’s physical impairments limit her ability to perform work
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in any way, because the evidence as a whole simply did not support further limitations (Tr. 230234). Here, the ALJ thoroughly explained the medical evidence and how it relates to the limitations
imposed by the ALJ. With regard to Plaintiff’s physical impairments, the ALJ noted as follows:
The evidence pertaining to the claimant’s claims of physical
impairment does not add much to the claimant’s disability claim.
The claimant reported being in good health and having no significant
medical history just six months prior to her alleged onset date of
disability (Ex. 7F at 3). The record shows that the claimant sought
medical treatment for her neck pain once in 2009 (Ex. 2F at 9). In
2010, she sought medical treatment more frequently, but the medical
treatment records from 2010 consist entirely of her office visitation
records from her primary medical care provider (Ex. 2F at 18-24, Ex.
8F, Ex. 18F at 26-34). The visitation notes cover a wide range of
problems, including but not limited to osteopenia, earache, hip pains,
leg pains, snoring, facial numbness, headache, a tinging sensation in
the arms and hands, hyperlipidemia, but there is simply insufficient
indication that the limiting effects of these impairments, singly or in
combination have disabled her. There is not even sufficient evidence
to find these impairments to be severe within the meaning of the
Social Security regulations.
(Tr. 232). Furthermore, the ALJ recognized the treatment notes from Kywa Htin, M.D., Plaintiff’s
pain management physician (Tr. 232). The ALJ summarized Dr. Htin’s medical evidence as
follows:
In 2011, the claimant began seeking pain management treatment
primarily for her neck related pains. In February and April Kywa
Htin, M.D., the claimant’s pain management doctor, diagnosed the
claimant with occiptal, neuralgia, right cervical and thoracic facet
arthritis, and right subacromial bursitis, and she received a series of
injections for pain relief in her neck and her right shoulder in the
months following (Ex. 12F, Ex. 13F, Ex. 20F). The pain block
injection treatment notes show that these injections have given her
significant pain relief. In August, the claimant reported having
experienced a 70% improvement since her June injection treatment
(Ex. 20F at 23). In September, the claimant again reported obtaining
a 70% improvement from the August injection treatment (Ex. 20F at
12). In September, Dr. Htin reported that the claimant obtained pain
relief after the injection treatment and that she was discharged from
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his office in a satisfactory condition, without complications or side
effects (Ex. 20F at 13). Furthermore, there is little by way of
objective medical signs to indicate that her pains are as bad as she
claims. The results of the cervical MRI study from January 5, 2011
revealed no remarkable findings what so ever. The claimant was
found to have no disc herniation, no spinal canal or foraminal
compromise (Ex. 19F at 10, Ex. 12F at 32). Further, there are several
indications in the treatment records to show that the claimant did not
show any sensory deficits and that she demonstrated normal motor
power bilaterally in her upper extremities (Ex. 12F at 3, 16, 32, Ex.
13F at 3, 17)
(Tr. 232-233). In addition, the ALJ explained that the state agency medical consultant found
Plaintiff’s physical impairments to be nonsevere based on the lack of sufficient [...] medical
evidence and issued no physical residual functional capacity assessment (Ex. 5A, Ex. 6A) (Tr. 233)
(internal citations omitted). In light of the foregoing evidence, it is clear that the ALJ did not err in
only including the use of a cane in Plaintiff’s residual functional capacity regarding physical
limitations. As a result, this finding is supported by substantial evidence and comports with
applicable law.
Next, Plaintiff argues that the ALJ failed to give proper consideration to the medical opinion
of Plaintiff’s treating pain management physician, Kywa Htin, M.D. (DN 16, Plaintiff’s Fact and
Law Summary at Pages 3-5). More specifically, Plaintiff asserts that the ALJ rejected Dr. Htin’s
assessment of limitations without clearly explaining the weight afforded to Dr. Htin’s assessment
(DN 16, Plaintiff’s Fact and Law Summary at Page 4). Plaintiff maintains that remand is necessary
for explanation of the weight afforded to the medical opinion of Dr. Htin (DN 16, Plaintiff’s Fact
and law Summary at Page 4). In opposition, the Defendant argues that the ALJ addressed Dr. Htin’s
opinion and articulated specific reasons for why she could not afford great significance to Dr. Htin’s
assessment (DN 19, Defendant’s Fact and Law Summary at Page 7).
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While the regulations require Administrative Law Judges to evaluate every medical opinion
in the record, the process of assigning weight to medical opinions in the record begins with a
determination whether to assign controlling weight to the medical opinion of the treating source.
20 C.F.R. §§ 404.1527(d), 416.927(d). Controlling weight is assigned to the medical opinion of a
treating source only when it is both well supported by medically acceptable clinical and laboratory
diagnostic techniques and not inconsistent with other substantial evidence in the record. 20 C.F.R.
§ 404.1527(d)(2); Social Security Ruling 96-2p; Bogle v. Sullivan, 998 F.2d 342, 347-48 (6th Cir.
1993); Crouch v. Sec’y of Health and Human Servs., 909 F.2d 852, 857 (6th Cir. 1990). Notably,
if the medical opinion of a treating source is found not to be entitled to controlling weight then the
Administrative Law Judge must determine how much weight it should be accorded and set forth in
the administrative decision good reasons for the weight given to that medical opinion. 20 C.F.R.
§§ 404.1527(d)(2), 416.927(d)(2); Social Security Ruling 96-2p; see Wilson v.Comm’r of Soc. Sec.,
378 F.3d 541, 545-46 (6th Cir. 2004) (if an Administrative law Judge discounts the opinion of a
treating physician, the Administrative Law Judge must provide “good reasons” for doing so).
On the other hand, “opinions from nontreating and nonexamining sources are never assessed
for ‘controlling weight.’” Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365 (6th Cir .2013). The
Commissioner instead weighs these opinions based on the examining relationship (or lack thereof),
specialization, consistency, and supportability, but only if a treating source is not deemed
controlling. 20 C.F.R. §§ 404.1527(c), 416.927(c). Other factors “which tend to support or
contradict the opinion” may be considered in assessing any type of medical opinion. 20 C.F.R. §§
404.1527(c)(6), 416.927(c)(6).
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Here, it is clear that Dr. Htin is Plaintiff’s treating physician and as a result he is entitled to
controlling weight unless otherwise noted. On January 3, 2012, Dr. Htin completed a residual
functional capacity assessment form (Tr. 767-68). The ALJ recognized this assessment and
summarized Dr. Htin’s findings as follows:
On this form, Dr. Htin indicated by way of checking off boxes that
the claimant can stand or sit for less than 2 hours in an 8-hour
workday and that she can only lift less than 10 pounds occasionally.
He further indicated that the claimant is restricted in her ability to
climb, balance, twist, turn, stoop, bend, reach and handle. As for the
claimant’s ability to use her hands, the doctor indicated that she can
only occasionally perform simple grasping and fine manipulation
activities and that she can only rarely perform push and pull
activities. He also imposed all environmental limitations listed in the
form and further noted that she is expected to be absent from work 5
or more days in a given month (Ex. 21F).
(Tr. 233). Further, the ALJ’s explanation for the weight assigned to Dr. Htin’s assessment reads as
follows:
Dr. Htin’s assessment, however, does not provide any explanation as
to why the claimant is as limited as he believes. He did not even
provide the underlying medical conditions to which the limitations
could be attributed in the form. Given that the claimant did not
submit any additional evidence alongside Dr. Htin’s assessment
showing that her physical condition worsened as Dr. Htin noted in the
form since her disability hearing in November 2011, the undersigned
is not willing to put great significance on a form assessment that
provides no basis for the limitations assessed. Under the Social
Security regulation, a functional capacity assessment from a treating
source receives favorable treatment, but the assessment must still be
supported by medical evidence and not inconsistent with the other
substantial evidence in the record.
(Tr. 233-34). While the ALJ’s explanation is not extensive, she still asserts that Dr. Htin’s
assessment is not supported by the evidence because it is inconsistent with other evidence in the
record. Also, Dr. Htin’s own treatment notes do not support the January 3, 2012 assessment.
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During her treatment with Dr. Htin, he noted that she received pain block injections and that she
increased significant improvements in her neck pains (Tr. 232-233). Moreover, there is no medical
objective evidence to support the January 3, 2012 assessment (Tr. 232-233). Therefore, the ALJ’s
Finding No. 5 is supported by substantial evidence and comports with applicable law.
Other Significant Work in the National Economy
Next, Plaintiff alleges ALJ’s Finding No. 10, which addresses the fifth step in the five-step
sequential evaluation process promulgated by the Commissioner (DN 16, Plaintiff’s Fact and Law
Summary at Page 6). After considering Plaintiff’s age, education, work experience, and residual
functional capacity, including testimony from the vocational expert, the ALJ concluded that there
are jobs that exist in significant numbers in the national economy that Plaintiff can perform as
explained in 20 C.F.R. §§ 404.1569, 404.1569(a), 416.969, and 416.969(a) (Tr. 234-236). More
specifically, the ALJ found that Plaintiff is capable of performing the requirements of the following
unskilled, light exertional level work with a specific vocation preparation rating (“SVP”) of a 2: a
laundry worker, a product inspector, and a document scanner (Tr. 235). Further, the ALJ concluded,
in light of the vocational expert’s testimony, even if the above residual functional capacity were
reduced to a sedentary exertional level, there still would be a significant number of work that
Plaintiff could perform (Tr. 235). The ALJ noted that at the sedentary level the following jobs
would be available: a machine monitor, a production inspector, and a bench worker or hand finisher
(Tr. 235-236).
Plaintiff argues that Finding No. 10 is not supported by substantial evidence, because of the
reasons set forth under the challenge to Finding No. 5, specifically that the ALJ should have
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afforded controlling weight to the medical opinion of Dr. Htin (DN 16, Plaintiff’s Fact and Law
Summary a Page 6). Further, Plaintiff argues that identification of jobs to a flawed hypothetical
question is not substantial evidence to support a denial in the claim for benefits (DN 16, Plaintiff’s
Fact and Law Summary at Page 6). In response, the Defendant argues that Finding No. 10 is
supported by substantial evidence, because the vocational expert’s testimony provides substantial
evidence that a person with Plaintiff’s residual functional capacity could perform the jobs identified
(DN 19, Defendant’s Fact and Law Summary at Page 11).
At the fifth step, the burden of proof shifts to the Commissioner as explained below:
The burden of proof in a claim of Social Security benefits is upon the
claimant to show disability which prevents him from performing any
substantial gainful employment for the statutory period. Once,
however, a prima facia case that claimant cannot perform her usual
work is made, the burden shifts to the [Commissioner] to show that
there is work in the national economy which she can perform
.
Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980) (citing Hephner v. Matthews, 574 F.2d 359, 361
(6th Cir. 1978); Garrett v. Finch, 436 F.2d 15, 18 (6th Cir. 1970)). The Commissioner may meet this
burden by relying on expert vocational testimony received during the hearing to determine what jobs
exist in significant numbers in the economy which plaintiff can perform considering the combination
of his or her limitations. See Born v. Sec’y of Health and Human Servs., 923 F.2d 1168, 1174 (6th
Cir. 1990); Davis v. Sec’y of Health and Human Servs., 915 F.2d 186, 189 (6th Cir. 1990); Varley
v. Sec’y of Health and Human Servs., 820 F.2d 777, 779 (6th Cir. 1987). In making a determination
at the fifth step of the five-step sequential evaluation process, the ALJ must consider a claimant’s
age, education, past relevant work experience, and residual functional capacity. 20 C.F.R. §§
404.1520(f), 416.920(f).
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Notably, a vocational expert’s testimony can constitute substantial evidence to support the
Commissioner’s finding that a plaintiff is capable of performing a significant number of jobs
existing in the local, regional, and national economies, Bradford v. Sec’y of the Dep’t of Health and
Human Servs., 803 F.2d 871, 874 (6th Cir. 1986) (per curiam), so long as the vocational expert’s
testimony is based on a hypothetical question which accurately portrays the plaintiff’s physical and
mental impairments. Varley v. Sec’y of Health and Human Servs., 820 F.2d 777, 779 (6th Cir.
1987). The hypothetical question is not erroneous where at least one doctor substantiates the
information contained therein. Hardaway v. Sec’y of Health and Human Servs., 823 F.2d 922, 92728 (6th Cir. 1987) (per curiam). Moreover, there is no requirement that the Administrative Law
Judge’s hypothetical question to the vocational expert reflect plaintiff’s unsubstantiated complaints.
For reasons discussed above, Plaintiff failed to successfully challenge the ALJ’s residual
functional capacity finding. As mentioned earlier, the ALJ found that Plaintiff has the residual
functional capacity to perform light work which is impeded by additional limitations (Tr. 230, 235).
Because Plaintiff’s residual functional capacity finding did not parallel the criteria of Medical
Vocational Rule 202.17, the ALJ only used the medical vocational rules as a framework for
decision-making (Tr. 235). To determine the extent to which these limitations erode the unskilled
light occupational base, the ALJ asked the vocational expert whether jobs exist in the national
economy for an individual with Plaintiff’s age, education, work experience, and residual functional
capacity (Tr. 234-236). The vocational expert testified that given all of these factors Plaintiff would
be able to perform the requirements of the following unskilled, light exertional level work with a
specific vocation preparation rating (“SVP”) of a 2: a laundry worker, a product inspector, and a
document scanner (Tr. 235). Moreover, the ALJ did not find that Plaintiff’s physical capacity has
14
been limited to a sedentary exertional level (Tr. 235). However, the ALJ noted that the vocational
expert’s testimony indicated that even if the above residual functional capacity were reduced to a
sedentary exertional level, there still would be a significant number of work that she could perform
including machine monitor, a production inspector, and a bench worker or hand finisher (Tr. 235236).
Here, there is no merit to Plaintiff’s argument. The vocational expert’s testimony was based
on a hypothetical question that accurately portrayed the Plaintiff’s physical and mental impairments
(Tr. 261-264). Therefore, the vocational expert’s testimony constitutes substantial evidence to
support the ALJ’s finding that Plaintiff is capable of performing a significant number of jobs
existing in the national economy. Bradford v. Sec’y of Dep’t of Health and Human Servs., 803 F.2d
871, 874 (6th Cir. 1986) (per curiam); Varley v. Sec’y of Health and Human Servs., 820 F.2d 777,
779 (6th Cir. 1987). In sum, the ALJ’s Finding No. 10 is supported by substantial evidence and
comports with applicable law.
General Disability Finding
Lastly, with regard to Finding No. 11, Plaintiff makes a broad challenge to the ALJ’s ruling
that Plaintiff has not been under a disability, as defined in the Social Security Act, from December
31, 2009, through February 6, 2012 (DN 16, Plaintiff’s Fact and Law Summary at Page 6). Based
on the analysis the undersigned has set forth with regard to Finding Nos. 5 and 10, the ALJ did not
err in finding that Plaintiff has not been under a disability from December 31, 2009 through
February 6, 2012. Because the undersigned concludes that Plaintiff’s challenge to Finding Nos. 5
and 10 fails, Plaintiff’s argument with regard to Finding No. 11 holds no merit. In sum, the
15
undersigned has reviewed the record and finds that the ALJ’s determinations under Finding Nos.
5, 10, and 11 are supported by substantial evidence and fully comport with applicable law.
ORDER
For the foregoing reasons, IT IS HEREBY ORDERED that the final decision of the
Commissioner is AFFIRMED, pursuant to 42 U.S.C. § 405(g).
This is a final and appealable Order and there is no just cause for delay.
May 6, 2014
Copies:
Counsel
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