Young v. Commissioner of Social Security

Filing 18

MEMORANDUM OPINION by Magistrate Judge Dave Whalin on 4/23/2018 - The decision of the Commissioner shall be affirmed by separate order of the Court and the complaint dismissed with prejudice. cc: Counsel of Record (KD)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

PAULA L. YOUNG

PLAINTIFF

v.

CIVIL ACTION NO. 3:17-CV-395 DW

NANCY A. BERRYHILL,
Acting Commissioner of Social Security

DEFENDANT

MEMORANDUM OPINION

Plaintiff Paula Young has filed a complaint pursuant to 42 U.S.C. §405(g) to obtain
judicial review of a final decision of the Commissioner of Social Security that denied her
application for disability insurance benefits (DIB). Young applied for DIB on April 14, 2014,
alleging that she was disabled as of May 15, 2012, due to torticollis, dystonia, cervical
degenerative disc disease, complex regional pain syndrome, left breast carcinoma status-post
bilateral breast surgeries, depression, anxiety, and obsessive-compulsive disorder (Tr.21). The
Commissioner denied Young’s claims on initial consideration (Tr. 88-101) and on
reconsideration (Tr. 102-117). Young requested a hearing before an Administrative Law Judge
(ALJ) (Tr.132).
ALJ William C. Zuber conducted a hearing in Louisville, Kentucky, on Jan. 4, 2016
(Tr.36-87). Young attended with her attorney, Kevin McDowell (Tr. 36 ). Young and
vocational expert (VE) Tina Stanbaugh testified at the hearing (Tr.39-76, 77-87). Following the

conclusion of the hearing, ALJ Zuber entered a hearing decision on May 25, 2016 that found
Young is not disabled for the purposes of the Social Security Act (Tr.19-30).
In his adverse decision, ALJ Zuber made the following findings:
1.

The claimant meets the insured status requirements of the Social Security Act
through December 31, 2017.

2.

The claimant has not engaged in substantial gainful activity since May 15, 2012,
the alleged onset date (20 C.F.R. 404.1571, et seq.).

3.

The claimant has the following severe impairments: torticollis, dystonia, cervical
degenerative disc disease, complex regional pain syndrome, left breast carcinoma
status-post bilateral breast surgeries, depression, anxiety, and obsessivecompulsive disorder (20 C.F.R. 404.1520(c)).

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 (20 C.F.R. 404.1520(d), 404.1525,
404.1526).

5.

After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in
20 CFR 404.1567(b) except that she needs the option to sit and stand every 30-45
minutes. She could occasionally climb ramps and stairs, stoop, and crouch. She
could never crawl, kneel, or climb ladders, ropes, and scaffolds. She could not
reach overhead. She could not be exposed to vibration, dangerous machinery, or
unprotected heights. She could only perform simple, routine, 1-2 step tasks that
are not fast-paced or quota driven. She could have frequent contact with
coworkers, supervisors, and the general public. She could only adapt to changes
in work routine or environment that are rare and gradually introduced. She could
sustain concentration, persistence, and pace for two-hour periods.

6.

The claimant is unable to perform any past relevant work (20 C.F.R. 404.1565).

7.

The claimant was born on August 19, 1966, and was 45-years-old, which is
defined as a younger individual age 18-49, on the alleged disability onset date (20
C.F.R. 404.1563).

8.

The claimant has at least a high-school education and is able to communicate in
English (20 C.F.R. 404.1564).

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
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that the claimant is “not disabled,” whether or not the claimant has transferrable
job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, App. 2).
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 (20 C.F.R. 404.1569, 404.1569(a)).

11.

The claimant has not been under a disability, as defined in the Social Security
Act, from May 15, 2012, through the date of this decision (20 C.F.R. 404.1520(g)
and 416.920(g)).

(Tr.21-30). Young sought review of the hearing decision by the Appeals Council (Tr. 177). The
Appeals Council denied her request for review, finding no reason under the Rules to review ALJ
Zuber’s decision (Tr.1-8). The present lawsuit followed.

The Five-Step Sequential Evaluation Process.
Disability is defined by law as being the inability to do 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 12 months. See, 20 CFR §§ 404.1505(a)(4), 416.905(a). To determine whether a claimant
for DIB or SSI benefits satisfies such definition, a 5-step evaluation process has been developed.
20 CFR §§ 404.1520, 916.920(a). Miller v. Commissioner, 811 F.3d 825, 834 n. 6 (6th Cir.
2016)(“ The ALJ must engage in a five-step sequential evaluation process to determine whether a
claimant is disabled.”). At step 1, the Commissioner must determine whether the claimant is
currently engaged in substantial gainful activity; if so, the Commissioner will find the claimant
to be not disabled. See, 20 CFR §§ 404.1520(a)(4)(i), 416.920(a)(4)(ii), 416.971. See, Gayheart
v. Commissioner, 710 F.3d 365, 374-75 (6th Cir. 2013)( “If claimant is doing substantial gainful
activity, he is not disabled.”); Dinkel v. Secretary, 910 F2d, 315, 318 (6th Cir. 1990).
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If the claimant is not working, then the Commissioner next must determine at step 2 of
the evaluation process whether the claimant has a severe impairment or combination of severe
impairments that significantly limit his or her ability to perform basic work activities. See 20
CFR §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Gayheart, 710 F.3d at 374(“If claimant is not
doing substantial gainful activity, his impairment must be severe before he can be found to be
disabled.”). If the impairments of the claimant are determined by the Commissioner to be nonsevere, in other words, so slight that they could not result in a finding of disability irrespective of
a claimant’s vocational factors, then the claimant will be determined to be not disabled at step 2.
See, Rabbers v. Commissioner, 582 F.3d 647, 652 (6th Cir. 2009); Higgs v. Bowen, 880 F.2d
960, 962 (6th Cir. 1988); Gray v. Astrue, 780 F. Supp.2d. 548, 550 (E.D. Ky. 2011)(“ If the
claimant is not currently engaged in substantial gainful activity, does he have any “severe”
impairment or combination of impairments—i.e., any impairments significantly limiting his
physical or mental ability to do basic work activities? If not, a finding of non-disability is made
and the claim is denied.”)
If the claimant has a severe impairment or impairments, then the Commissioner at step 3
of the process will determine whether such impairments are sufficiently serious to satisfy the
listing of impairments found in Appendix 1 of Subpart P of Part 404 of the federal regulations.
20 CFR §§ 404.1520(A)(4)(iii), 416.920(a)(4)(iii); Rabbers, 582 F.3d at 652. The claimant will
be determined to be automatically disabled without consideration of his or her age, education or
work experience if the claimant’s impairments are sufficiently severe to meet or equal the criteria
of any impairment listed in the Appendix. See, Combs v. Commissioner, 459 F.3d 640, 642 (6th
Cir. 2006)(“Claimants are conclusively presumed to be disabled if they suffer from an infirmity

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that appears on the SSA's special list of impairments, or that is at least equal in severity to those
listed.”); Lankford v. Sullivan, 942 F.2d 301, 306 (6th Cir. 1991)(same).
When the severity of the claimant’s impairments does not meet or equal the listings, then
the Commissioner must determine at step 4 whether the claimant retains the residual functional
capacity (RFC) given his or her impairments to permit a return to any of his or her past relevant
work. 20 CFR §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). See, Wilson v. Commissioner, 378 F.3d
541, 458 (6th Cir. 2004); Smith v. Secretary, 893 F.2d 106, 109-110 (6th Cir. 1989). A claimant
who retains the residual functional capacity, despite his or her severe impairments, to perform
past relevant work is not disabled. 20 CFR §§ 404.1560(b)(3), 416.960(b)(3). Mackins v. Astrue,
655 F. Supp.2d 770, 776 (W.D. Ky. 2009)(“ The claimant must not be able to perform his past
relevant work either as he actually performed it or as it generally performed in the national
economy.”).
The burden switches to the Commissioner at step 5 of the sequential evaluation process to
establish that the claimant, who cannot return to his or her past relevant work, remains capable of
performing alternative work in the national economy given his or her residual functional
capacity, age, education and past relevant work experience. See, 20 CFR §§ 404.1520(a)(4)(v),
404.1560( c ), 416.920(a)(4)(v), 416.960( c ); Hensley v. Astrue, 573 F.3d 263, 264 (6th Cir.
2009); Cruse v. Commissioner, 502 F.3d 532, 539 (6th Cir. 2007); Wilson v. Commissioner, 378
F.3d 541, 458 (6th Cir. 2004)(“ If the claimant does . . . [satisfy the initial 4-steps], including
establishing that under the claimant's “residual functional capacity the claimant can [not] perform
his past relevant work,” the burden then shifts to the Commissioner [at step 5] to show that
“based on the claimant's residual functional capacity, as well as his age, education, and work
experience, the claimant can make an adjustment to other work, in which case the claimant is not
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disabled.”) . Collectively, the above disability evaluation analysis is commonly referred to as the
“5-step sequential evaluation process.”

Standard of Review.
Review of a decision of the Commissioner is governed by 42 U.S.C. § 405(g). The
statute, and case law that interprets it, require a reviewing court to affirm the findings of the
Commissioner if they are supported by substantial evidence and the Commissioner has employed
the appropriate legal standard. Cole v. Astrue, 661 F.3d 931, 937 (6th Cir.2011)(“[R]eview is
limited to determining whether the Commissioner's decision is supported by substantial evidence
and was made pursuant to proper legal standards.’); Walters v. Commissioner of Social Security,
127 F.3d 525, 528 (6th Cir. 1997) (“This Court must affirm the Commissioner’s conclusions
absent a determination that the Commissioner has failed to apply the correct legal standards or
has made findings of fact unsupported by substantial evidence in the record.); Dennis v. Astrue,
655 F. Supp.2d 746, 749-50 (W.D. Ky. 2009)(same).
Substantial evidence is defined by the Supreme Court to be “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 401 (1971); Lindsley v. Comm'r of Soc. Sec., 560 F.3d 601, 604 (6th Cir.2009); Warner
v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004)(same). See also, Lashley v. Sec’y of
HHS, 708 F.2d 1048, 1053 (6th Cir. 1983) (citing Perales). It is more than a mere scintilla of
evidence or evidence that merely creates the suspicion of the existence of a fact, but must be
enough evidence to justify a refusal to direct a verdict if the matter were tried to a jury. Sias v.
Sec’y of HHS, 861 F.2d 475, 479 n. 1 (6th Cir. 1988).
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The substantiality of the evidence is to be determined based upon a review of the record
taken as a whole, not simply some evidence, but rather the entirety of the record to include those
portions that detract from its weight. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984);
Laskowski v. Apfel, 100 F. Supp.2d 474, 482 (E.D. Mich. 2000). So long as the decision of the
Commissioner is supported by substantial evidence, it must be upheld by the federal court even if
the record might support a contrary conclusion. Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512
(6th Cir. 2010); Wright v. Massanari, 321 F.3d 611, 614 (6th Cir.2003) (quoting Key v. Callahan,
109 F.3d 270, 273 (6th Cir.1997)); Smith v. Sec’y of HHS, 893 F.2d 106, 108 (6th Cir. 1989).
The substantial evidence standard “presupposes that there is a zone of choice within which
decision makers can go either way, without interference from the courts.” Mullen v. Bowen, 800
F.2d 535, 545 (6th Cir. 1986) (en banc).

Issues for Review.
Plaintiff, Paula L. Young, was 49-years old at the time of the adverse hearing decision,
with a high school education and a prior 10-year work history as a part-time administrative
assistant, which ended in 2012 when the law firm that employed her as a legal secretary could no
longer afford her services. (Tr. 448). Young challenges only one aspect of ALJ Zuber’s adverse
decision. Her focus is the residual functional capacity (RFC) finding of the ALJ at pages 5-10 of
his decision (Tr. 23-28).
In that finding, the ALJ determined that Young remains capable, despite the limitations
caused by her severe impairments, of performing light work with a sit-stand option limited to
routine 1-2 step tasks that are not quota driven, where changes in her work routine are rare and
are gradually introduced. He further determined in the same finding that Young would be
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precluded from overhead reaching, crawling, kneeling, climbing ladders, ropes or scaffolds and
that she cannot reach overhead. (Tr. 23). Finally, ALJ Zuber in finding no. 5 limited Young to
sustaining concentration, persistence and pace for two-hour intervals and to only frequent contact
with coworkers, supervisors and the general public. (Id.).
Young now maintains that this RFC finding is the result of an error of fact and law
related to her testimony at the administrative hearing. The testimony at issue involves her
decision to decline spinal surgery. At pages 22-23 of the hearing transcript (Tr. 57-58), Young
and the ALJ discuss the decision of Young to forego the implantation of a cervical spinal cord
stimulator suggested by Dr. Cassaro. (Tr. 803).Young declined the device due to the invasive
nature of the procedure. (Id.) ALJ Zuber assured Young at that point of the hearing that her
election to forego the spinal surgery will not be held against her by the SSA. (Tr. 58-59). In his
words, “we don’t sit there and say, well, you’re not really bad off because otherwise you
would’ve asked them to stick this thing [the stimulator] in your neck with a remote.” (Tr. 59).
Young now argues that despite this explicit assurance, ALJ in his hearing decision at
page 8 did just that—hold her election to decline spinal surgery against her in rejecting the
credibility of her subjective complaints of disabling pain due to her torticollis,1 dystonia,2

1

“Torticollis is a problem involving the muscles of the neck that causes the head to tilt down. The term comes from
two Latin words: tortus, which means twisted, and collum, which means neck. Sometimes it’s called “wryneck.”
https://webmd.com/parenting/baby/what-is-torticollis (last visited April 16, 2018). Another name for spasmodic
torticollis is “cervical dystonia, which “is a painful condition in which your neck muscles contract involuntarily,
causing your head to twist or turn to one side. Cervical dystonia can also cause your head to uncontrollably tilt
forward or backward. A rare disorder that can occur at any age, cervical dystonia most often occurs in middle-aged
people, women more than men. Symptoms generally begin gradually and then reach a point where they don't get
substantially worse.” https://www.mayoclinic.org/diseases-conditions/cervical-dystonia/symptoms-causes/syc20354123 (last visited April 16, 2018).
2
Dystonia is a movement disorder in which your muscles contract involuntarily, causing repetitive or twisting
movements. The condition can affect one part of your body (focal dystonia), two or more adjacent parts (segmental
dystonia) or all parts of your body (general dystonia). The muscle spasms can be mild or severe, and might interfere
with your performance of day-to-day tasks. https://www.mayoclinic.org/diseases-conditions/dystonia/symptomscauses/syc-20350480 (last visited April 16, 2018).
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cervical degenerative disc disease, and post-mastectomy chest pain. Specifically, the hearing
decision provides at page 8 in discussing the factors to be considered under SSR 16-3p that:
Additionally, the claimant notes improvement in these symptoms
[involuntary movements, tremors, muscle spasms, neck pain, headaches, and
breast pain] with this medication. There has been no significant adjustment in the
claimant’s mediation over time. Besides, medication, the claimant has also been
treated with an epidural injection, which did not help. However, the claimant has
not required even more aggressive treatment modalities, such as surgery. She
refused a spinal cord stimulator because she did not want to have an invasive
procedure.
(Tr. 26).
Young maintains that the quoted language above is contrary to both the Social Security
Ruling and the case law which interprets it. According to Young, the decision of a claimant to
reject medically recommended back surgery may only be a basis on which to deny a claim for
benefits if the surgical procedure would have restored the claimant’s ability to perform
substantial gainful activity. See Dooley v. Astrue, No. 1:10CV544, 2011 WL 4384180 at *7-8
(N.D. Ohio Sept. 2011)(plaintiff correctly argued that ALJ’s reliance on her refusal to have back
surgery was misplaced)(citing Harris v. Heckler, 756 F.2d 431, 435-36 (6th Cir. 1985) and
Fraley v. Sec’y of HHS, 733 F.2d 437, 440 (6th Cir. 1984). See, Shauf v. Sec’y of HHS, 770 F.2d
167 (6th Cir. 1985(table)(available at 1985 WL 13517)(“ 20 C.F.R. § 404.1530(a) provides that
‘[i]n order to get benefits, you must follow treatment prescribed by your physician if this
treatment can restore your ability to work.’ Subsection (b) provides in pertinent part that ‘[i]f you
do not follow the prescribed treatment without a good reason, we will not find you disabled. . . .’
In order to deny benefits on this ground, the evidence must show that (1) the surgery would
restore claimant's ability to work, (2) the surgery was prescribed, (3) claimant refused the
surgery, (4) such refusal was willful.”).
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The United States addresses this argument at pages 6-7 of its Fact & Law summary (DN
17). The Government insists that the ALJ “did not draw any negative inference from Plaintiff’s
refusal to have surgery. Rather, the ALJ properly summarized the treatment record and
Plaintiff’s testimony, noting that Plaintiff had not required any surgery and that Plaintiff did not
seek surgery because of her concerns, both of which are accurate statements.” (TR 26)
Consequently, the United States concludes that ALJ Zuber properly and thoroughly stated
Young’s treatment record to conclude that it, along with her daily activities and statements, were
inconsistent with the subjective complaints of disabling pain and limitations that she alleged.
The Court upon comprehensive review of the record, and analysis of the arguments of the
parties, is compelled to agree with the United States.

Legal Analysis
The argument of the Plaintiff focuses exclusively on that part of the hearing decision in
which ALJ Zuber evaluates Young’s symptoms pursuant to Social Security Ruling (SSR) 16-3p,
2016 WL 1119029 (eff. Mar.28, 2016).3 SSR 16-3p clarifies the language of the pre-existing
standard set forth in SSR 96-7p, 1996 WL 374186 (1996) to the extent that it “eliminated the use
of the term ‘credibility’ in the sub-regulatory policy and stressed that when evaluating a
claimant’s symptoms the adjudicator will not ‘assess an individual’s overall character or
truthfulness’ but instead ‘focus on whether the evidence establishes a medically determinable
impairment that could reasonably be expected to produce the individual’s symptoms and given
3

The Social Security Administration on March 24, 2016 issued a notice of correction that changed the original
effective date of SSR 16-3p from March 16, 2016 to March 28, 2016. SSR 16-3p, 2016 WL 1237954 (Mar. 24,
2016). See Brothers v. Berryhill, 2017 WL 2912535 at*10 n. 4 (N.D. Ohio June 22, 2017). Therefore, SSR 16-3p
took effect approximately two months prior to the hearing decision rendered by the ALJ on May 25, 2016 (TR 1930).
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the adjudicator’s evaluation of the individual symptoms, whether the intensity and persistence of
the symptoms limit the individual’s ability to perform work-related activities. . . .’” Huigens v.
Social Security Administration, No. 17-11682, 2017 WL 6311683 at *6 (11th Cir. Dec. 11,
2017)(quoting, Hargress v. Soc. Sec. Admin., 874 F.3d 1284, 1289-90 (11th Cir. 2017) (quoting
in part SSR 16-3p)).
The analysis under SSR 16-3p otherwise is identical to that performed under SSRI 96-7p.
First, the Commissioner will consider all of the claimant’s symptoms to include her pain, and the
extent to which these symptoms reasonably can be expected to be consistent with the objective
medical evidence of record. SSR 16-3p, 2016 WL 1020935 (Mar. 16, 2016). In doing so, the
Commissioner initially looks to the underlying medically determined impairments that
reasonably could be expected to produce the claimant’s symptoms. Once the Commissioner
establishes the existence of such underlying physical or mental impairments that reasonably
could produce the alleged symptoms of the claimant, then the Commissioner in the second step
of the process will evaluate the intensity and persistence of those symptoms to determine the
extent to which they limit the ability of the individual to perform work-related activities. Id.
To evaluate the intensity and persistence of a claimant’s subjective symptoms such as
pain, the Commissioner will consider a number of factors to include: (1) the severity of the
objective medical evidence of record; (2) the statements of the claimant about the intensity,
persistence and limiting effects of her symptoms; (3) clinical findings and observations about
such symptoms; (4) statements from other sources that have information about the claimant’s
symptoms; (5) the daily activities of the claimant; (6) any factors that precipitate or aggravate the
symptoms; (7) the type, dosage, effectiveness and side effects of any medication taken to
alleviate pain or other symptoms; (8) treatment, other than medication, for relief of pain or other
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symptoms; and (9) any other factors about the claimant’s functional limitations and restrictions
due to pain or symptoms. SSR 16-3p, 2016 WL 1020935 (Mar. 16, 2016). See, Pariscoff v.
Commissioner, No 2:17-CV-798, 2018 WL 1224515 at*5 (S.D. Ohio Mar. 9, 2018)(discussing
the analysis to be performed under SSR 16-3p); Brothers v. Berryhill, 3:16-CV-01942, 2017 WL
2912535, at *10 (N.D. Ohio June 22, 2017)(discussing the analysis under the preceding SSR 967p); Patterson v Colvin, No. 13-CV-1040, 2016 WL 7670058 at * 8-9 (W.D. Tenn. Dec. 16,
2016).
Here, there is no indication that ALJ Zuber inappropriately departed from the analysis
required by SSR 16-3p. Review of the hearing decision shows that the ALJ at pages 7-8 of his
decision carefully reviewed Young’s medical treatment history including the results of her
various examinations by treating medical sources, diagnostic imaging reports, physical
examinations, her surgical history, daily activities and her subjective complaints along with her
mental status examinations. (TR 25-26). Only in the context of this comprehensive review did
ALJ Zuber make a purely historic reference to the refusal of Young to agree to the implant of a
spinal cord stimulator. (TR 26). This reference, however, was only historical. In other words,
nowhere does ALJ Zuber rely upon Young’s refusal to consider such a spinal cord stimulator as
a basis on which to reject her claim for disability insurance benefits. Rather, ALJ Zuber noted,
again correctly, that Young did not require “more aggressive treatment modalities, such as
surgery.” (Id). In other words, her neck spasms, pain, headaches and involuntary movements
were not sufficiently debilitating to require surgery.
Surgery was not prescribed for Young by Dr. Cassaro, but only suggested as a possible
treatment modality. Accordingly, we do not have a situation where the Commissioner denied a

12

claim for benefits based on the refusal of a claimant to undergo a corrective surgery which had a
reasonable probability of curing a severe impairment.
This circumstance entirely differentiates the present case from those cited above such as
Dooley v. Astrue, 2011 WL 4384180 at *7-8 (N.D. Ohio Sept. 2011) and Fraley v. Sec’y of HHS,
733 F.2d 437, 440 (6th Cir. 1984). See also, Shauf v. Sec’y of HHS, 770 F.2d 167 (6th Cir.
1985)(table). In other words, Young’s case does not involve a failure to follow prescribed
treatment contrary to the language of 20 CFR 404.1530(b)(“ When you do not follow prescribed
treatment. If you do not follow the prescribed treatment without a good reason, we will not find
you disabled or, if you are already receiving benefits, we will stop paying you benefits.”).
Young was not prescribed a spinal cord stimulator as her condition did not require such surgery,
so that her election not to have a stimulator implanted would not have violated the cited
regulation; and, more importantly, was never relied on by ALJ Zuber as a basis on which to deny
her claim for DIB.
Because ALJ Zuber properly applied the federal regulations and social security rulings in
Finding of Fact No 5 of the hearing decision, Young has failed to show any error of law or fact
with her sole argument that would warrant reversal or remand of the Commissioner’s decision.
The decision is fully supported at step five of the sequential evaluation process by the testimony
of VE Stanbaugh, who when presented with a hypothetical that accurately reflected the
limitations of the claimant, identified a significant number of alternative jobs in the national and
regional economy that Young remains capable of performing given her age, education, past
relevant work and RFC. (Tr. 77-87). See Ealy v. Comm’r, 594 F.3d 504, 512-13 (6th Cir. 2010)(
“[s]ubstantial evidence may be produced through reliance on the testimony of a vocational expert
(VE) in response to a ‘hypothetical’ question, but only ‘if the question accurately portrays the
13

claimant’s individual physical and mental impairments.’ ”) (citing Varley v. Sec’y of HHS, 820
F.3d 777, 779 (6th Cir. 1987)).
For this reason the decision of the Commissioner shall be affirmed by separate order of
the Court and the complaint dismissed with prejudice.

April 23, 2018

Cc:

counsel of record
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