Pippin v. Commissioner of Social Security
Filing
19
MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 9/18/2017 re 1 Complaint. The final decision of the Commissioner is AFFIRMED. Judgment is GRANTED for the Commissioner.cc:counsel (JWM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1: 17-CV-00003-HBB
BETH E. PIPPIN
PLAINTIFF
VS.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security
DEFENDANT
MEMORANDUM OPINION
AND ORDER
BACKGROUND
Before the Court is the complaint (DN 1) of Beth E. Pippin (APlaintiff@) seeking judicial
review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the
Plaintiff (DN 15) and Defendant (DN 18) have filed a Fact and Law Summary. For the reasons
that follow, judgment is granted for the Commissioner.
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 Court of Appeals in the event an appeal is filed (DN 11). By Order entered March
29, 2017 (DN 10), the parties were notified that oral arguments would not be held unless a written
request therefor was filed and granted. No such request was filed.
1
FINDINGS OF FACT
On October 10, 1996, Plaintiff filed an application for Supplemental Security Income (SSI)
benefits under Title XVI of the Social Security Act (the Act) (Tr. 89). 1 The state agency denied
Plaintiff’s application at the initial and reconsideration levels (Id.). Following an administrative
hearing on April 9, 1998, the Administrative Law Judge issued a decision finding that Plaintiff was
not disabled (Id.). Plaintiff filed a request for review of the Administrative Law Judge’s decision
(Id.).
While Plaintiff’s request for review was pending before the Appeals Council, she filed a
subsequent application for SSI on May 21, 1998 (Tr. 89). The state agency issued a favorable
determination in September 1998, finding that Plaintiff had been disabled since May 21, 1998
(Id.). Thus, Plaintiff became eligible for SSI benefits on June 1, 1998 (Id.).
On December 21, 1999, the Appeals Council remanded Plaintiff’s October 10, 1996
application to an Administrative Law Judge for further consideration (Tr. 89). The remand order
indicated that Plaintiff’s award of disability in her subsequent application was supported by
substantial evidence that amounted to new and material evidence relating to the period at issue in
the first application (Id.). On remand, the Administrative Law Judge considered the closed period
between October 10, 1996 (the original alleged onset date) and May 31, 1998, the day before
Plaintiff became eligible for SSI (Id.). In a decision dated June 16, 2000, the Administrative Law
Judge issued a favorable decision finding that Plaintiff was entitled to SSI benefits between
October 1996 and May 1998 (Tr. 89-93). More specifically, at the second step the Administrative
1 The underlying documents related to Plaintiff’s 1996 application are not part of the administrative record.
Accordingly, the citations refer to the Administrative Law Judge’s June 2000 decision, which discussed the procedural
history.
2
Law Judge found that Plaintiff had the following severe impairments: degenerative joint disease, a
seizure disorder, a depressive disorder, and anxiety disorder, borderline personality disorder, and
borderline intellectual functioning (Tr. 92). At the fourth step, the Administrative Law Judge
determined that Plaintiff had the following residual functional capacity during the relevant period:
She was mildly limited in her ability to understand, retain, and
follow simple instructions.
She had moderate difficulties
sustaining attention and concentration to perform repetitive tasks.
Her ability to relate to co-workers and others was impaired. Her
capacity to tolerate the stress and pressure of daily work activity was
moderately to severely impaired.
(Tr. 92-93). The Administrative Law Judge found that Plaintiff was unable to perform the
requirements of her past relevant work during the relevant period (Tr. 93). At the fifth step, the
Administrative Law Judge considered Plaintiff’s age, education, past work experience, and
residual functional capacity (Id.). The Administrative Law judge concluded due to Plaintiff’s
non-exertional limitations she could not make an adjustment to any work that existed in significant
numbers in the national economy during the relevant period and, therefore, reached a finding of
disabled under the medical-vocational guidelines (Id.). However, Plaintiff reports that her SSI
benefits ceased in 2005 when her husband apparently began receiving Disability Insurance
Benefits (DIB) (DN 15 PageID # 1568 n. 1).
On May 6, 2015, Plaintiff filed an application for DIB (Tr. 15, 285-86). Plaintiff alleged
that she became disabled on September 30, 2013, as a result of epilepsy, blood clot in the right leg,
migraine headaches, nerve damage in the head, sleep apnea, fibromyalgia, back disorders,
emphysema, allergies, edema, acid reflux, abdominal pain, depression, anxiety, panic attacks, and
obesity (Tr. 15, 421-22). Administrative Law Judge Candace A. McDaniel (AALJ@) conducted a
video hearing from Louisville, Kentucky (Tr. 15, 37-39). Plaintiff and her attorney, Richard
3
Burchett, participated from Bowling Green, Kentucky (Id.). William R. Harpool also participated
and testified as an impartial vocational expert (Id.).
In a decision dated July 11, 2016, the ALJ evaluated this adult disability claim pursuant to
the five-step sequential evaluation process promulgated by the Commissioner (Tr. 15-26).
Notably, the ALJ found that Plaintiff met the insured status requirements of the Social Security
Act through December 31, 2018 (Tr. 17). At the first step, the ALJ found Plaintiff has not
engaged in substantial gainful activity since September 30, 2013 the alleged onset date (Id.). Next,
the ALJ determined that Plaintiff has the following severe impairments: degenerative disc disease
of the cervical and lumbar spine; obesity; degenerative osteoarthritis of the knees with a history of
total arthroplasty surgery bilaterally; a seizure disorder; a depressive disorder; and an anxiety
disorder (Id.). Additionally, the ALJ found that Plaintiff=s deep vein thrombosis in the right leg,
cholecystitis, hysterectomy, and fibromyalgia are Anon-severe@ impairments (Tr. 17-18). 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. 18).
The ALJ specifically found that plaintiff did not meet or medically equal the criteria for listings
1.03, 1.04, 11.02, 11.03, 12.04, and 12.06 (Tr. 18-20).
At the fourth step, the ALJ made the following finding with regard to Plaintiff’s residual
functional capacity:
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform a range of sedentary work as defined in 20 CFR
404.1567(a) in that the claimant can lift and carry up to 10 pounds
occasionally, lift and carry a little less than 10 pounds such as 8
pounds frequently, sit for six of eight hours, and stand or walk for
three out of eight hours; no more than occasional pushing and
pulling with the upper extremities as well as no more than
4
occasional pushing and pulling with the lower extremities; no
climbing of ladders, ropes, or scaffold [sic]; only occasional
climbing of ramps or stairs, occasional stooping, kneeling,
crouching, or crawling; able to balance when walking on level
ground but need to avoid uneven or slippery surfaces, and would
need to use a cane when ambulating for distances of more than 10 or
15 feet; no exposure to hazardous work settings including
unprotected heights, operation of machinery with open and exposed
moving parts or gears that do not stop with loss of human contact or
control, no commercial driving, and no exposure to large bodies of
water; avoid exposure to concentrate [sic] levels of vibrations, and
concentrated levels of fumes, odors, dusts, gases, poor ventilation,
wetness and humidity, and extreme temperatures of cold or heat; is
able to understand, remember and carry out simple routine
instructions; has adequate attention and concentration for two hours
[sic] over an eight hour workday, interact with coworkers and
supervisors frequently, with no more than occasional contact with
the public not incidental to work activities, and is able to adapt to
routine changes in such a setting.
(Tr. 20). Relying on testimony from the vocational expert, the ALJ found that Plaintiff is unable
to perform any of her past relevant work (Tr. 24).
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. 25-26). The ALJ found that Plaintiff is capable of performing a significant number of jobs
that exist in the national economy (Tr. 26). Therefore, the ALJ concluded that Plaintiff has not
been under a Adisability,@ as defined in the Social Security Act, from September 30, 2013 through
the date of the decision, July 11, 2016 (Id.).
Plaintiff timely filed a request for the Appeals Council to review the ALJ=s decision (Tr.
8-10). The Appeals Council denied Plaintiff=s request for review of the ALJ=s decision (Tr. 1-4).
5
CONCLUSIONS OF LAW
Standard of Review
Review by the Court is limited to determining whether the findings set forth in the final
decision of the Commissioner are supported by Asubstantial evidence,@ 42 U.S.C. § 405(g); Cotton
v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993); Wyatt v. Sec’y of Health & Human Servs., 974 F.2d
680, 683 (6th Cir. 1992), and whether the correct legal standards were applied. Landsaw v. Sec’y
of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). ASubstantial 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. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993)). In reviewing a
case for substantial evidence, the Court Amay not try the case de novo, nor resolve conflicts in
evidence, nor decide questions of credibility.@ Cohen v. Sec’y of Health & Human Servs., 964
F.2d 524, 528 (6th Cir. 1992) (quoting Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984)).
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). Thus, the Court will be reviewing the decision of the ALJ, not the
Appeals Council, and the evidence that was in the administrative record when the ALJ rendered
the decision. 42 U.S.C. § 405(g); 20 C.F.R. § 404.981; Cline v. Comm’r of Soc. Sec., 96 F.3d
146, 148 (6th Cir. 1996); Cotton v. Sullivan, 2 F.3d 692, 695-696 (6th Cir. 1993).
6
The Commissioner’s Sequential Evaluation Process
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
Disability Insurance Benefits), 1381 et seq. (Title XVI Supplemental Security Income). The term
Adisability@ 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 AEvaluation 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?
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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.
Challenged Findings
Plaintiff disagrees with Finding Nos. 3 and 5 which, respectively, set forth her “severe”
impairments and residual functional capacity (DN 15 PageID #1568-69, 1572).
Plaintiff
challenges Finding No. 4 which addresses whether she has an impairment that meets or equals a
listing in Appendix 1 (Id. PageID # 1570-72). Plaintiff also disagrees with Finding Nos. 10 and
11 (Id. PageID # 1573).
A
1. Plaintiff’s Argument
Plaintiff contends that Finding Nos. 3 and 5 are not supported by substantial evidence
because they do not comport with the Sixth Circuit’s holding in Drummond v. Comm’r of Soc.
Sec., 126 F.3d 837 (6th Cir. 1997) and the Agency’s policy in Acquiescence Ruling 98-4(6) (DN
15 PageID #1568-69, 1572).
Plaintiff explains that the ALJ failed to discuss the severe
impairment and residual functional capacity (“RFC”) findings set forth in the June 16, 2000
Administrative Law Judge decision, and the ALJ did not consider whether there is new and
material evidence to support a different conclusion regarding her current severe impairments and
residual functional capacity. Specifically, Plaintiff is referring to the earlier determinations that
she suffers from borderline personality disorder and borderline intellectual functioning, the
impairments are severe, and they impose non-exertional limitations of moderate to severe
8
impaired capacity to tolerate stress and pressure of daily work activity and moderate difficulty
maintaining attention and concentration to perform repetitive tasks (Tr. 92-93).
2. Defendant’s Argument
Defendant asserts that Drummond and AR 98-4(6) do not apply to the case at hand because
they apply only to disability claims arising under the same title (DN 18 PageID 3 1582-83).
Defendant explains that the June 2000 decision awarded SSI under Title XVI of the Act, whereas
the instant action involves a claim for DIB under Title II of the Act. Defendant asserts that the
ALJ was not obligated to consider or adopt the findings from the 2000 decision or apply the
holding in Drummond and AR 98-4(6) because the current application involves a different title of
the Act. Additionally, Defendant points out that Plaintiff has not cited any evidence from the
relevant period documenting the presence of borderline intellectual functioning and borderline
personality disorder. Defendant notes that in July 2015, a consultative examining psychologist
diagnosed a depressive disorder and generalized anxiety disorder but did not indicate any other
more severe intellectual or cognitive impairments (Tr. 1025).
3. Discussion
In Drummond, the Sixth Circuit held that the doctrine of res judicata applies to the
Commissioner’s final decision concerning a claimant’s application for disability benefits. 126
F.3d at 842. As a result, absent substantial evidence of an improvement in the claimant’s
condition, an Administrative Law Judge addressing a claimant’s subsequent application for
disability benefits is bound by the findings of fact in the previous final decision of the
Commissioner. Id. at 842-43.
9
The first Administrative Law Judge’s decision, in Drummond, addressed the time period
July 6, 1987 through July 28, 1988 and found at the fifth step that the claimant was not entitled to
DIB because she was classified as a “younger” individual (age 49) and retained an RFC for
“sedentary” work. Id. at 838. The second Administrative Law Judge’s decision addressed the
time period July 28, 1988 to August 2, 1990 and found at the fourth step that the claimant was not
entitled to DIB because she retained the RFC for “medium” work and could perform her past
relevant work.
Id. at 839.
However, by then the claimant was classified as a “person
approaching advanced age” because she was between 50 and 54 years old. Id.
The Sixth Circuit noted that if the claimant had been determined to have an RFC limited to
sedentary work, as was decided in the first determination, then she would have been entitled to
DIB under the regulations because of the combination of her age classification and RFC. Id.
The Sixth Circuit found that substantial evidence had not been introduced demonstrating that her
condition improved significantly between the two hearing dates. Id. at 843. Through the
application of res judicata, the Sixth Circuit held that the second Administrative Law Judge was
bound by the prior determination that the claimant retained the RFC to perform sedentary work.
Id. Due to the claimant's change in age at the time of her second application and her RFC for
sedentary work, the Sixth Circuit found her eligible for DIB. Id.
In light of Drummond, the Commissioner issued AR 98-4(6) directing states within the
Sixth Circuit to follow that holding. In pertinent part, the Acquiesence Ruling explained:
When adjudicating a subsequent disability claim with an
unadjudicated period arising under the same title of the [Social
Security] Act as the prior claim, adjudicators must adopt such a
finding from the final decision by an ALJ or the Appeals Council on
the prior claim in determining whether the claimant is disabled with
respect to the unadjudicated period unless there is new and material
10
evidence relating to such a finding or there has been a change in the
law, regulations or rulings affecting the finding or the method for
arriving at the finding.
AR 98–4(6), 1998 WL 283902, at *3 (June 1, 1998) (emphasis added). Although Drummond
involved a title II case, AR 98-4(6) recognizes that “similar principles also apply to title XVI
cases.” Id. n. 1. Therefore, AR 98-4(6) directs that the “Ruling extends to both title II and title
XVI disability claims.” Id.
Here, the June 16, 2000 decision addressed Plaintiff’s application for SSI under Title XVI
of the Act. By contrast, the July 6, 2016 decision dealt with her application for DIB under Title II
of the Act. Thus, the later decision adjudicated a subsequent disability claim arising under a
different title of the Act. Defendant asserts that Drummond and AR 98-4(6) do not apply because
they are limited to an adjudication of claims arising under the same title. The undersigned finds
this argument without merit.
On at least two occasions, the Commissioner has unsuccessfully relied on AR 98-4(6) to
argue that Drummond should not be applied to a subsequent disability claim under title II because
the previous claim was brought under title XVI. See McClain v. Comm’r of Soc. Sec., No.
12-11172, 2013 WL 5182089, at *11 (E.D. Mich. Sept. 13, 2013) and Kaufman v. Astrue, No.
3:10-CV-1067, 2011 WL 3862350, at 11 (N.D. Ohio Aug. 22, 2011), adopted by 2011 WL
3862345 (N.D. Ohio 2011) Both courts concluded that while AR 98-4(6) recognizes that the
Drummond holding applies with equal force to title II and XVI claims, the Ruling fell short of
addressing whether it applies to a title II claim when the previous claim was a title XVI claim.
McClain, 2013 WL 5182089, at *11; Kaufman, 2011 WL 3862350, at *5. Reasoning that the
determination is identical under both titles, the courts applied Drummond. McClain, 2013 WL
11
5182089, at *11; Kaufman, 2011 WL 3862350, at *5. This Court agrees with McClain and
Kaufman because the regulations for assessing disability claims under titles II and XVI are
identical (compare 20 C.F.R. §§ 404.1502-404.1576 with 416.902-416.976), and placing such an
artificial limitation on the rule in Drummond will fundamentally gut and render meaningless the
Sixth Circuit’s holding that, absent changed circumstances, the principles of res judicata apply to
the Commissioner’s final decisions on disability claims. Drummond, 126 F.3d at 840-43.
Additionally, in contrast to AR 98-4(6), Drummond does not expressly or implicitly limit
the holding to adjudication of disability claims under the same title of the Act. 126 F.3d at
840-43. Thus, to the extent that AR 98-4(6) is inconsistent with Drummond, this Court will
follow Drummond because Sixth Circuit precedent is controlling. See McClain, 2013 WL
5182089, at *11; Harris v. Astrue, No. 3:09-CV-00260, 2010 WL 3909495, at *5 (S.D.Ohio 2010),
adopted by 2010 WL 3909493 (S.D.Ohio 2010).
At issue are the “severe” impairment findings and RFC findings set forth in the earlier
decision dated June 16, 2000. Plaintiff claims that the ALJ should have conducted an analysis
under Drummond. The undersigned disagrees. Unlike Drummond, where the Administrative
Law Judge decisions addressed contiguous time periods, there is a very substantial rift of 15 years
that separates the end of one adjudicated period, May 31, 1998, and the beginning of the other
adjudicated period, September 30, 2013. 2 Additionally, during at least seven of the 15 years that
separate the two adjudicated periods, Plaintiff worked as a self-employed house cleaner and
2 The June 16, 2000 decision addressed the period of October 10, 1996 (the original alleged onset date) through May
31, 1998, because an earlier state agency determination that Plaintiff’s disability began on May 21, 1998 and she was
eligible for SSI benefits on June 1, 1998 (Tr. 89). By contrast, the ALJ’s decision dated July 6, 2016 addressed the
period of September 30, 2013 through July 6, 2016 (Tr. 15-26).
12
garage sale owner/operator (Tr. 386, 423).
Further, a total of 16 years separates the two
decisions. There is no indication in Drummond and its progeny that the Sixth Circuit ever
envisioned such an exploitation of the principles of res judicata.
But even if the ALJ had erred by failing to conduct a Drummond assessment, the error
would be harmless. There is substantial evidence in the record demonstrating a significant
improvement in Plaintiff’s condition during the years that separate the two adjudicated periods.
Specifically, Plaintiff worked as a self-employed house cleaner and garage sale owner/operator
from July 2006 to September 2013 (Tr. 386, 423). 3 Moreover, there is no medical evidence in
the current administrative record that even sets forth a diagnosis of borderline personality disorder
and borderline intellectual functioning. In fact, Ollie C. Dennis, Ed. D., performed a thorough
consultative psychological evaluation on June 9, 2014, and diagnosed Plaintiff with a depressive
disorder as well as an anxiety disorder (Tr. 821-22).
In sum, Plaintiff’s challenges to Finding Nos. 3 and 5 must fail. These findings comport
with applicable law and are supported by substantial evidence in the record.
B
1. Plaintiff’s Argument
Next, Plaintiff claims that Finding No. 4 is not supported by substantial evidence because
the ALJ’s determination as to listing 1.03 was based on a misinterpretation of the term “ineffective
ambulation” which is defined in section 1.00B2b (DN 15 PageID # 1570-72). She explains that
the ALJ focused solely on her need for a walker or two crutches (Id.). Plaintiff contends that the
definition in section 1.00B2b is far broader than the need to use a walker, two crutches, or two
3 Apparently, Plaintiff qualified to apply for DIB because of the FICA taxes she paid on her earnings (Tr. 287, 290).
13
canes (Id.). Plaintiff points out that section 1.00B2b includes “the inability to walk a block at a
reasonable pace on rough or uneven surfaces;” “the inability to carry out routine ambulatory
activities, such as shopping and banking,” and the “inability to climb a few steps at a reasonable
pace with the use of a single hand rail.” Additionally, Plaintiff observes that section 1.00B2b
indicates that “[t]he ability to walk independently about one’s home without the use of assistive
devices does not, in and of itself, constitute effective ambulation.” Plaintiff points out that
consultative examiner Dr. Eric Van Bogaert opined that she was not capable of walking more than
10 to 15 feet without a cane (Tr. 1017). Plaintiff also cites other evidence in the record regarding
her difficulties with walking (DN 15 PageID # 1571-72).
2. Defendant’s Argument
Defendant contends that the ALJ properly determined that Plaintiff did not meet listing
1.03 (DN 18 PageID # 1583-86). Defendant explains that Plaintiff failed to satisfy her burden of
demonstrating that she was unable to ambulate effectively (Id.).
Defendant identifies the
evidence in the record that supports the ALJ’s finding that Plaintiff could ambulate effectively
despite experiencing brief periods of ineffective ambulation following each knee replacement
surgery (Id.).
2. Discussion
At the third step, a claimant has the burden of demonstrating that she has an impairment
that meets or medically equals a listing in Appendix 1. See 20 C.F.R. § 404.1520(d); Burgess v.
Sec’y of Health & Human Servs., 835 F.2d 139, 140 (6th Cir. 1987). To meet a listing in
Appendix 1, the medical records regarding the impairment must satisfy both the diagnosis and
14
severity requirements for the listing. Social Security Ruling 96-5p; 20 C.F.R. § 404.1525(d);
Hale v. Sec’y of Health & Human Servs., 816 F.2d 1078, 1083 (6th Cir. 1984).
The listing at issue reads as follows:
1.03 Reconstructive surgery or surgical arthrodesis of a major
weight-bearing joint, with inability to ambulate effectively, as
defined in 1.00B2b, and return to effective ambulation did not
occur, or is not expected to occur, within 12 months of onset.
20 C.F.R. Pt. 404, Subpt. P, App. 1, listing 1.03. At issue is the following definition:
b. What We Mean by Inability To Ambulate Effectively
(1) Definition. Inability to ambulate effectively means an extreme
limitation of the ability to walk; i.e., an impairment(s) that interferes
very seriously with the individual's ability to independently initiate,
sustain, or complete activities. Ineffective ambulation is defined
generally as having insufficient lower extremity functioning (see
1.00J) to permit independent ambulation without the use of a
hand-held assistive device(s) that limits the functioning of both
upper extremities. (Listing 1.05C is an exception to this general
definition because the individual has the use of only one upper
extremity due to amputation of a hand.)
(2) To ambulate effectively, individuals must be capable of
sustaining a reasonable walking pace over a sufficient distance to be
able to carry out activities of daily living. They must have the
ability to travel without companion assistance to and from a place of
employment or school. Therefore, examples of ineffective
ambulation include, but are not limited to, the inability to walk
without the use of a walker, two crutches or two canes, the inability
to walk a block at a reasonable pace on rough or uneven surfaces,
the inability to use standard public transportation, the inability to
carry out routine ambulatory activities, such as shopping and
banking, and the inability to climb a few steps at a reasonable pace
with the use of a single hand rail. The ability to walk
independently about one's home without the use of assistive devices
does not, in and of itself, constitute effective ambulation.
20 C.F.R. Pt. 404, Subpt. P, App. 1, 1.00B2b(1) and (2). Ultimately, Plaintiff bears the burden of
establishing that she is disabled under listing 1.03.
15
In pertinent part, the ALJ’s decision reads as follows:
The representative has argued that the claimant’s reconstructive
knee surgery satisfies listing 1.03 arguing that the claimant is unable
to ambulate effectively and that such limitation has lasted for 12 or
more months. Section 1.00B2b explained that examples of
ineffective ambulation included the need to use a walker, 2 crutches
or 2 canes while ambulating. Despite the claimant’s testimony to
the contrary, the undersigned does not find, except for a short period
of time while recovering from the knee surgery, that the claimant
had to use a walker while ambulating. Instead, the weight of the
evidence indicates that the claimant was ambulating with a single
cane and Social Security Ruling 96-9p explain [sic] that the use of a
single cane does not preclude sedentary work activity. After a
careful review, the Administrative Law Judge finds that the
claimant does not have any physical impairment that meets or
equals the requirements of any section of Appendix 1.
(Tr. 18). Contrary to Plaintiff’s claim, the ALJ adequately explained why Plaintiff did not meet
listing 1.03. The ALJ discounted Plaintiff’s subjective complaints about an inability to walk
because substantial medical evidence in the record indicated otherwise. Notably, in connection
with the residual functional capacity assessment, the ALJ provided an in depth explanation of the
objective medical evidence in the record and why she discounted: Plaintiff’s subjective complaints
about the inability to walk; several references in the medical record about Plaintiff arriving in a
wheelchair; and Plaintiff’s alleged need to use a cane when ambulating (Tr. 20-24). Further, in
connection with the residual functional capacity assessment, the ALJ sufficiently articulated good
reasons for discounting Dr. Van Bogaert’s opinion that a cane was medically necessary (Tr. 23).
Review of the record reveals that Finding No. 4 is supported by substantial evidence and comports
with applicable law.
16
C
Finally, Plaintiff challenges Finding Nos. 10 and 11 (DN 15 PageID # 1573). Defendant
contends they are supported by substantial evidence (DN 18 PageID # 1586).
In Finding No. 10, the ALJ relied on testimony from the vocational expert to conclude that
there are jobs that exist in significant numbers in the national economy that Plaintiff can perform
considering her age, education, work experience and residual functional capacity (Tr. 25-26).
Finding No. 11 sets forth the ALJ’s conclusion that Plaintiff has not been under a disability, as
defined by the Act, from September 30, 2013, through the date of the decision, July 11, 2016 (Tr.
26).
It is well-established that Aissues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.@ United States v. Layne, 192 F.3d
556, 566 (6th Cir.1999) (quoting McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir.1997)); see
also Brindley v. McCullen, 61 F.3d 507, 509 (6th Cir.1995) (observing that A[w]e consider issues
not fully developed and argued to be waived.@). Here, Plaintiff has merely indicated that Finding
Nos. 10 and 11 are not supported by substantial evidence “for the reasons above stated” (DN 15
PageID # 1573). Clearly, Plaintiff has adverted to both claims in a perfunctory manner. Because
Plaintiff has failed to substantiate her claims with developed argument, they are deemed waived.
17
ORDER
IT IS HEREBY ORDERED that the final decision of the Commissioner is AFFIRMED.
IT IS FURTHER ORDERED that judgment is GRANTED for the Commissioner.
September 18, 2017
Copies:
Counsel
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