Lewis v. Commissioner of Social Security
Filing
17
MEMORANDUM OPINION AND ORDER by Magistrate Judge Colin H. Lindsay on 9/28/18: The Court being otherwise sufficiently advised, it is ORDERED as follows: The final decision of the Commissioner of Social Security is AFFIRMED, and this action is DISMISSED with prejudice. A final judgment will be entered separately. cc:counsel (DJT)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:17-CV-370-CHL
MARY ARDELLA LEWIS,
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
MEMORANDUM OPINION AND ORDER
Before the Court is the Complaint (DN 1) of Plaintiff, Mary Ardella Lewis (“Plaintiff’). In
her Complaint, Plaintiff seeks judicial review of the final decision of the Commissioner of Social
Security (the “Commissioner”). See 42 U.S.C. § 405(g) (2012) (“Any individual, after any final
decision of the Commissioner of Social Security . . . may obtain a review of such decision by a
civil action commenced within sixty days after the mailing to him of notice of such decision . . .
.”). Plaintiff filed a Fact and Law Summary. (DN 15.) The Commissioner also filed a Fact and
Law Summary. (DN 21.)
The Parties have consented to the jurisdiction of a magistrate judge to enter judgment in
this case with direct review by the Sixth Circuit Court of Appeals in the event an appeal is filed.
(DN 14.) Therefore, this matter is ripe for review. For the reasons below, the final decision of the
Commissioner is AFFIRMED.
I.
BACKGROUND
Plaintiff filed an application for a period of disability and disability insurance benefits on
April 2, 2014. (R. at 275-76.) Plaintiff also filed an application for supplemental security income
on the same day. (Id. at 277-83.) On March 22, 2016, Administrate Law Judge Christopher C.
Sheppard (the “ALJ”) conducted a hearing on Plaintiff’s application. (Id. at 44-89.) In a decision
dated, April 28, 2016, the ALJ engaged in the five-step evaluation process promulgated by the
Commissioner to determine whether an individual is disabled. (Id. at 21-37.) In doing so, the ALJ
made these findings:
1.
The claimant meets the insured status requirements of the Social
Security Act through March 31, 2014. (Id. at 26.)
2.
The claimant has not engaged in substantial gainful activity since
October 26, 2013, the amended alleged onset date. (Id.)
3.
The claimant has the following severe impairments: human
immunodeficiency virus positive status (HIV+); anemia; dysfunction of sacroiliac
joint; degenerative disc disease; borderline intellectual functioning; and bipolar
disorder. (Id.)
4.
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 27.)
5.
The claimant has the residual functional capacity to perform a
reduced range of light work as defined in 20 C.F.R. § 404.1567(b) and 416.967(b).
She can lift and carry 20 pounds occasionally and 10 pounds frequently. She can
sit six hours in an eight-hour workday. She can stand and/or walk six hours in an
eight-hour workday, but in intervals of no more than 45 minutes continuously. She
can push and pull up to the above-stated exertional limitations. The claimant can
climb ramps and stairs frequently and she can climb ropes, ladders, or scaffolds
occasionally. She can stoop, kneel, crouch, and crawl frequently. The claimant
should avoid workplace hazards such as unprotected heights and dangerous
machinery. She should avoid full-body vibration. The claimant can perform
simple, routine tasks. She can maintain attention and concentration for two-hour
segments over the course of the eight-hour workday. She can interact as needed
with supervisors and coworkers sufficiently for task completion and she can interact
with the general public occasionally. The claimant can adapt to gradual changes in
the routine work environment. Her work should not require fast-paced production
quotas or goals. The claimant requires oral instructions or initial demonstration.
(Id. at 29.)
6.
The claimant is unable to perform any past relevant work. (Id. at
35.)
7.
The claimant was born on September 19, 1963 and was 45 years old,
which is defined as an individual closely approaching advanced age, on the alleged
disability onset date. (Id.)
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8.
The claimant has a limited education and is able to communicate in
English. (Id.)
9.
Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether or not the claimant has
transferrable job skills. (Id.)
10.
Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform. (Id.)
11.
The claimant has not been under a disability, as defined in the Social
Security Act from October 26, 2013, through the date of this decision. (Id. at 36.)
Plaintiff requested an appeal to the Appeals Council, which denied her request for review
on April 27, 2017. (Id. at 1-3.) At that point, the ALJ’s decision became the final decision of the
Commissioner. See 20 C.F.R. §§ 404.981, 422.210(a); see also 42 U.S.C. § 405(h) (discussing
finality of the Commissioner’s decision). Pursuant to 20 C.F.R. § 422.210(c), Plaintiff is presumed
to have received that decision five days later on May 2, 2017. Plaintiff filed this action on June
19, 2017.
II.
DISCUSSION
The Social Security Act authorizes payments of disability insurance benefits and
supplemental social security income to persons with disabilities. See 42 U.S.C. §§ 401 – 434,
1381-1383f (2017). Specifically, anyone who is insured for disability insurance benefits, has not
attained retirement age, has filed an application for benefits, and is under a disability is entitled to
benefits. 42 U.S.C. § 423(a)(1); see also Warner v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th
Cir. 1997). An individual shall be considered “disabled” if he or she is unable “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
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continuous period of not less than 12 months . . . .” 42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R.
§ 404.1505(a) (2017).
A.
Standard of Review
The Court may review the final decision of the Commissioner, but that review is limited to
whether the Commissioner’s findings are supported by “substantial evidence” and whether the
Commissioner applied the correct legal standards. 42 U.S.C. § 405(g) (2016); Key v. Callahan,
109 F.3d 270, 273 (6th Cir. 1997). “Substantial evidence” means “more than a mere scintilla;” it
means “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). The Court must “affirm the
Commissioner’s decision if it is based on substantial evidence, even if substantial evidence would
have supported the opposite conclusion.” Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 374 (6th
Cir. 2013); see Smith v. Secretary of Health and Human Servs., 893 F.2d 106, 108 (6th Cir. 1994)
(holding that if the Court determines the ALJ’s decision is supported by substantial evidence, the
court “may not even inquire whether the record could support a decision the other way”).
However, “failure to follow agency rules and regulations” constitutes lack of substantial evidence,
even where the Commissioner’s findings can otherwise be justified by evidence in the record.
Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011).
B.
Five- Step Sequential Evaluation Process
The Commissioner has promulgated regulations that set forth a five-step sequential
evaluation process that an ALJ must follow in evaluating a disability claim. 20 C.F.R. §§
404.1520, 416.920 (2018). In summary, the evaluation process proceeds as follows:
(1)
Is the claimant involved in substantial gainful activity? If the answer is
“yes,” the claimant is not disabled. If the answer is “no,” proceed to the
next step.
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(2)
Does the claimant have a medically determinable impairment or
combination of impairments that satisfies the duration requirement1 and
significantly limits your physical or mental ability to do basic work
activities? If the answer is “no,” the claimant is not disabled. If the answer
is “yes,” proceed to the next step.
(3)
Does the claimant have an impairment that meets or medically equals the
criteria of a listed impairment within 20 C.F.R. Part 404, Subpart P,
Appendix 1? If the answer is “yes,” the claimant is disabled. If the answer
is “no,” proceed to the next step.
(4)
Does the claimant have the residual functional capacity (“RFC”) to return
to his or her past relevant work? If the answer is “yes,” then the claimant is
not disabled. If the answer is “no,” proceed to the next step.
(5)
Does the claimant’s RFC, age, education, and work experience allow him
or her to make an adjustment to other work? If the answer is “yes,” the
claimant is not disabled. If the answer is “no,” the claimant is disabled.
The claimant bears the burden of proof with respect to steps one through four. Walters v. Comm’r
of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). However, the burden shifts to the Commissioner
at step five to prove that other work is available that the claimant is capable of performing. Jordan
v. Comm’r of Soc. Sec., 548 F.3d 417, 423 (6th Cir. 2008). The claimant always retains the burden
of proving lack of RFC. Id.; Herr v. Comm’r of Soc. Sec., 203 F.3d 388, 392 (6th Cir. 1999).
C.
Plaintiff’s Contentions
Plaintiff argues that the ALJ erred in two ways. First, Plaintiff argues that the ALJ did not
dispute Plaintiff needed a cane, and therefore, erred in not including any corresponding limitation
or explanation regarding the absence of any limitation in his RFC determination. (DN 15-1, at
PageID # 1041.) Second, Plaintiff argues that the ALJ failed in his duty to develop the record by
failing to respond to Plaintiff’s pre-hearing request for an updated consultative examination. (Id.)
The Court will address each contention below.
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To be considered, an impairment must be expected to result in death or have lasted/be expected to last for a
continuous period of at least twelve (12) months. 20 C.F.R. § 404.1509 (2018).
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1.
Plaintiff’s Use of a Cane
Plaintiff argues that the ALJ’s RFC determination is contrary to law because it neither
accounted for Plaintiff’s need to ambulate with a cane, nor offered any explanation for why
Plaintiff did not need a cane. (DN 15-1, at PageID # 1045.) The Commissioner argued in response
that the ALJ’s RFC finding was supported by substantial evidence.
In determining a claimant’s residual functional capacity, an ALJ is required to assess all
relevant evidence in the record. 20 C.F.R. 404.1545(a) (2014). However, an “RFC is meant to
describe the claimant’s residual abilities or what a clamant can do, not what maladies a claimant
suffers from—though the maladies will certainly inform the ALJ’s conclusion about the claimant’s
abilities.” Howard v. Comm’r of Soc. Sec., 276 F.3d 325, 240 (6th Cir. 2002). Plaintiff argues
that the ALJ acknowledged Plaintiff’s use of a cane and was therefore required to either include
cane-related limitations in his RFC or offer an explanation as to why “Plaintiff would not need a
cane while working on a full-time basis.” (DN 15-1, at PageID # 1045.) A review of the ALJ’s
decision and his comments regarding Plaintiff’s use of cane, as well as the associated medical
evidence cited by the ALJ clarifies that the ALJ did not consider Plaintiff’s use of a cane to be
medically necessary and that the ALJ explicitly provided for Plaintiff’s complaints of leg weakness
in his RFC.
In Finding No. 5, the ALJ found the Plaintiff capable of performing “a reduced range of
light work.” (R. at 29.) The ALJ then described Plaintiff’s subjective complaints based on her
testimony at the hearing, noting that the Plaintiff had “poor balance” and “may fall without warning
if standing a long time.” (Id. at 29.) The ALJ likewise noted that Plaintiff “stat[ed] she cannot
work due to inability to stand or sit for prolonged periods.” (Id.) Further, the ALJ took notice that
Plaintiff “uses a cane” and “cannot estimate standing limits, as she may fall at unpredictable
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times.” (Id. at 31.) However, the ALJ then stated that “the claimants statements concerning the
intensity, persistence and limiting effects of [her] symptoms are not entirely consistent with the
medical evidence and other evidence in the record for the reasons explained in this decision.” (Id.)
The ALJ then went on to review the medical evidence in the record. He cited to an April
20, 2015 visit with Dr. Boakye, a neurosurgeon, whose “[c]linical examination showed normal
motor power in the lower extremities and normal gait.” (Id. at 32.) The ALJ cited to a February
2, 2016 visit by Plaintiff to Dr. Siddiqui, a pain management physician, whose “[c]linical
examination demonstrated some antalgic gait, but normal strength in both lower extremities.” (Id.)
The ALJ contrasted the two findings, but explicitly noted that both Dr. Boyakye and Dr. Siqqiqui
agreed regarding Plaintiff’s lower extremity strength. (Id. at 33.) The ALJ also noted that the
records of Nurse Practitioner Connie Pate “refer[ed] to chronic hip pain and frequent falls,” as well
as that Ms. Pate had prescribed a cane to the Plaintiff on September 15, 2015. (Id.) The ALJ even
cited to the exact page of the Record with Ms. Pate’s prescription for a cane, demonstrating that
he had reviewed Ms. Pate’s findings and instructions for Plaintiff to use the cane secondary to
falls. (Id. at 32 (citing id. at 955); id. at 957.) After considering the above medical evidence, the
ALJ concluded, that to give “due accommodation to [Plaintiff’s] severe physical impairments,”
Plaintiff is limited to “light work with only limited intervals on her feet and significant postural
and environmental limitations.” (Id. at 33-34.) The ALJ stated that his RFC would include
“standing/walking intervals . . . to give due account to subjective complaints of leg weakness.”
(Id. at 34.)
In effect, by not including a cane in Plaintiff’s RFC, but making explicit
accommodations for her subjective complaints of leg weakness, the ALJ found Plaintiff’s cane
unnecessary. Because the ALJ cited to medical evidence in support of his conclusion and plainly
evaluated all the evidence in the record, including evidence regarding Plaintiff’s use of a cane as
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required, the undersigned finds that the ALJ’s RFC determination is supported by substantial
evidence.
Plaintiff cites to SSR 96-9P and argues that when the record demonstrates a need for a
cane, an ALJ must make findings regarding whether the cane is medically necessary and the workrelated limitations resulting from the need for the device. (DN 15-1, at PageID # 1043.) The Court
finds SSR 96-9P to not be controlling in this case as that ruling addresses exertional limitations
and restrictions to be addressed where a claimant is limited to less than the full range of sedentary
work. SSR 96-9P, 61 Fed. Reg. 34478 (July 2, 1996). Here, the ALJ determined that the Plaintiff
was limited to light work, not sedentary work. Therefore, SSR 96-9P’s guidelines did not apply
to his decision. See, e.g., Parrish v. Colvin, No. 3:13-01218, 2014 WL 4053397, at *10 (M.D.
Tenn. Aug. 15, 2014); Conley v. Colvin, No. 7:13-cv-121-JMH, 2016 WL 867117, at *5 (E.D. Ky.
March 2, 2016).
Accordingly, the Court finds no reversible error in the ALJ’s RFC determination.
2.
ALJ’s Duty to Develop the Record
Plaintiff also argues that the ALJ violated his duty to develop the record because he failed
to respond to Plaintiff’s request for an additional consultative examination. (DN 15-1, at PageID
# 1048.) Plaintiff states that she made a prehearing motion for a physical consultative exam to
address new severe impairments that had not been considered in her previous application for
benefits.2 (DN 15-1, at PageID #1048; see R. at 375-77.) However, Plaintiff did not renew her
request for a physical consultative exam at the hearing before the ALJ or request that the record
2
As the ALJ noted in his decision, Plaintiff received an unfavorable decision from Administrative Law Judge Karen
Jackson on October 25, 2013 on a previous application for benefits. (R. at 31). Judge Jackson’s decision, dated
October 25, 2013, is contained in the record and was considered by the ALJ pursuant to Drummond v. Comm’r, 126
F.3d 837 (6th Cir. 1997). No party has argued that the ALJ erred in his consideration of Judge Jackson’s prior decision
or in his application of Drummond.
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remain open to submit additional evidence. (R. at 44-89.) Instead, Plaintiff’s representative only
requested the opportunity to submit a post-hearing argument. (Id. at 88.) In response, the
Commissioner argues that it was within the ALJ’s discretion to “decid[e] that he did not need a
consultative examination for assistance in evaluating Plaintiff’s claim.” (DN 16, at PageID #
1062).
It is well-established that an ALJ has a duty to develop the record. See Lashley v. Comm’r
of Soc. Sec., 708 F.2d 1048, 1052 (6th Cir. 1983). Further, an ALJ has a heightened duty to develop
the record “when a claimant is without counsel, is not capable of presenting an effective case, and
is unfamiliar with hearing procedures.”3 Trandafir v. Comm’r of Soc. Sec., 58 Fed. App’x 113,
115 (6th Cir. 2003); see also Duncan v. Sec’y of Health & Human Servs., 801 F.2d 847, 856 (6th
1986). Pursuant to 20 C.F.R. § 404.1520b, if after reviewing the evidence of record, the ALJ finds
it to be insufficient or inconsistent, the ALJ may “determine the best way to resolve the
inconsistency or insufficiency.” 20 C.F.R. § 404.1520b (2014). However, an ALJ is not bound to
resolve the inconsistency or insufficiency in a particular manner, though he may take additional
steps to do so, including ordering a consultative valuation at the Social Security Administration’s
expense. Id. at § (c)(3). “An ALJ has discretion to determine whether further evidence, such as
additional testing or expert testimony is necessary.” Foster v. Halter, 249 F.3d 348, 355 (6th Cir.
2001).
In Robertson v. Comm’r of Soc. Sec., 513 Fed. App’x 439 (6th Cir. 2013), the Sixth Circuit
upheld an ALJ’s decision not to obtain additional medical evidence, including a consultative
examination from a cardiologist. The Sixth Circuit held that “the ALJ was not obligated to order
a consultative examination with a cardiologist” because of the “considerable amount of medical
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The ALJ did not have a heightened duty in this case because Plaintiff was represented.
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evidence in the record concerning Robertson’s cardiovascular problems and his resulting
functional capability, including test results, physicians’ notes, and opinion evidence from multiple
physicians, and the lack of any significant inconsistencies in the evidence.” Id. at 441. Plaintiff
has failed to demonstrate any factual inconsistency from Robertson and has not specifically
identified any inconsistencies in the record necessitating additional evidence for the ALJ to
consider. Here, the ALJ had the benefit of multiple records post-dating the prior ALJ’s decision
that documented Plaintiff’s new impairments. For example, state agency physician Dr. Jack Reed
considered Plaintiff’s potential impairments of HIV, inflammatory arthritis, organic mental
disorders, and affective disorders and made a determination regarding her RFC, specifically citing
to Plaintiff’s HIV as an environmental limitation in support of his conclusion. (R. at 190-192.)
Further, the ALJ had the benefit of medical records from Plaintiff’s providers that post-dated the
prior ALJ decision by Judge Jackson. (Id. at 825-970.) Plaintiff has offered no evidence
suggesting these sources were inconsistent such that the ALJ might need additional evidence to
resolve any such inconsistencies.
Instead, Plaintiff contends it was error for the ALJ to base his analysis on the “raw medical
data,” citing to Simpson v. Comm’r v. Soc. Sec., 344 Fed App’x 181, 194 (6th Cir. 2009), for the
proposition that “the ALJ’s lay opinion is an insufficient basis to reject expert opinion.” (DN 151, at PageID # 1050.) Plaintiff’s citation to Simpson is misleading. In Simpson, the Sixth Circuit
reversed a District Court’s opinion affirming the Commissioner’s decision because the ALJ erred
“in failing to incorporate [the claimant’s] significant mental impairments into the calculation of
her RFC” and did not “rely upon substantial evidence in discounting the opinions of [claimant’s]
treating physicians.” Simpson, 344 Fed. App’x at 194-95. It is in its analysis of whether the ALJ’s
decision to substitute his own opinion for the opinions of Simpson’s treating physicians that the
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Sixth Circuit found the insertion of a lay opinion improper. As to Simpson’s argument that an
additional medical expert was needed, the Sixth Circuit found that “the ALJ did not err in failing
to call a medical expert” given “the breadth and depth of the evidence in the record.” Id. at 189.
Accordingly, Simpson does not mandate reversal or impact the propriety of the ALJ’s decision in
this case.
As Plaintiff has wholly failed to demonstrate an inconsistency or insufficiency in the
records before the ALJ that would necessitate additional evidence such as a consultative
evaluation, the Court defers to the ALJ’s decision not to obtain additional evidence. Accordingly,
the Court finds no violation of the ALJ’s duty to develop the record and no reversible error.
III.
CONCLUSION AND ORDER
For these reasons, and the Court being otherwise sufficiently advised, it is ORDERED as
follows:
(1)
The final decision of the Commissioner of Social Security is AFFIRMED, and this
action is DISMISSED with prejudice.
(2)
cc:
A final judgment will be entered separately.
Counsel of record
September 28, 2018
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