Burris v. Commissioner of Social Security
Filing
24
MEMORANDUM OPINION AND ORDER by Magistrate Judge Lanny King on 4/13/2017 - Plaintiff's motion for judgment on the pleadings 16 is DENIED. The Commissioner's final decision is AFFIRMED. Plaintiff's complaint is DISMISSED. cc: Counsel(DAK)
ROBERT ALAN BURRIS
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:16‐CV‐00092‐LLK
PLAINTIFF
DEFENDANT
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff's complaint seeking judicial review, pursuant to 42
U.S.C. § 405(g), of the final decision of the Commissioner denying his claim for Social Security disability
benefits. Plaintiff’s motion for judgment on the pleadings (i.e., the administrative record) and
Defendant’s fact and law summary in opposition are at Dockets 16 and 23. The parties have consented
to the jurisdiction of the undersigned Magistrate Judge to determine this case, with any appeal lying
before the Sixth Circuit Court of Appeals. Docket 13.
Because, at worst, Plaintiff’s arguments identify a harmless error, the Court will DENY Plaintiff’s
motion for judgment on the pleadings, AFFIRM the Commissioner’s final decision, and DISMISS Plaintiff’s
complaint.
Harmless‐Error Review
The principle that judicial review contemplates a deferential review of final agency decisions is
deeply‐embedded in case‐law. See, for example, Shinseki v. Sanders, 556 U.S. 396, 407 (2009) (The
harmless error doctrine is intended to prevent reviewing courts from becoming “impregnable citadels of
technicality”); Heston v. Commissioner, 245 F.3d 528, 535‐36 (6th Cir.2001) (Remand to correct an error
committed by the ALJ unnecessary where such error was harmless); Fisher v. Secretary, 869 F.2d 1055,
1057 (7th Cir.1989) (“[N]o principle of administrative law or common sense requires us to remand a case
in quest of a perfect opinion unless there is reason to believe that the remand might lead to a different
result”); Bennyhill v. Secretary, 1993 WL 361792 (6th Cir.) (“[T]he court will remand the case to the
1
agency for further consideration only if the court is in substantial doubt whether the administrative
agency would have made the same ultimate finding with the erroneous finding removed from the
picture”).
Any unsupported finding that Plaintiff engaged in substantial gainful activity (SGA) was harmless.
The regulations promulgated by the Commissioner establish a 5‐step sequential evaluation
process:
1. If the claimant is doing substantial gainful activity, the claimant is not disabled.
2. If the claimant does not have a severe medically‐determinable physical or mental impairment
(i.e., an impairment that significantly limits his or her physical or mental ability to do basic work
activities), the claimant is not disabled.
3. If the claimant has a severe impairment satisfying the medical criteria of an impairment listed
in Appendix 1 of the regulations and the 12‐month duration requirement, the claimant is disabled.
4. If the claimant's impairment(s) and associated restrictions do not prevent him from doing his
past relevant work, the claimant is not disabled.
5. If the claimant can perform other work existing in significant numbers in the national
economy, he is not disabled. Otherwise, he is disabled.
Rubbers v. Commissioner, 582 F.3d 647, 652 (6th Cir. 2009) citing 20 C.F.R. § 416.920.
Plaintiff argues that the ALJ’s first‐step finding that he engaged in substantial gainful activity
(SGA) during the time in which he alleges disability was unsupported by substantial evidence.
The ALJ’s findings are equivocal as to whether Plaintiff actually engaged in SGA. Regardless, the
administrative law judge (ALJ) did not deny Plaintiff’s disability claim at Step 1 of the sequential
evaluation process.1
1
The decision’s full Step 1 discussion (upon which the ALJ did not ultimately rely) is as follows: “The claimant
testified that he worked in an overstock store since 2012 (hearing testimony). The claimant testified that he
worked more than 30 hours per week. The claimant was still working there as of June 2014. He appears to have
2
Because the ALJ continued the sequential evaluation process beyond Step 1 (where SGA is
relevant) and denied Plaintiff’s disability claim at the fifth and final step, any error at Step 1 was, at
worst, harmless.
Any unsupported RFC finding was harmless.
The ALJ found that Plaintiff’s depression, anger/personality disorder, and alcohol/drug abuse
limit him to no public‐contact work and no more than superficial (occasional) contact with supervisors
and co‐employees. ALJ’s decision, administrative record (AR), pp. 23 and 24.
In November 2013, the Commissioner’s non‐examining program psychologist, Ed Ross, Ph.D.,
opined, based on the evidence as a whole, that Plaintiff is “limited to simple, routine and repetitive tasks
in a work environment free of fast paced production requirements, involving only simple work‐related
decisions, with few, if any work place changes. He should have only brief, infrequent and superficial
contact with others.” AR, p. 116. In his written decision, the ALJ characterized Dr. Ross’ opinion as
limiting Plaintiff to “unskilled work with occasional interacts with others.” AR, p. 27. The ALJ accepted
Dr. Ross’ finding of Plaintiff’s need for only occasional interaction with others as a “social limitation
[that] takes into account the claimant’s past history of anger outbursts (hearing testimony).” Id. The
ALJ, however, rejected Dr. Ross’ finding that Plaintiff is limited to unskilled work because “the claimant
had improved concentration when keeping up with treatment and remaining sober.” Id. The ALJ gave
Dr. Ross’ opinion as a whole “some weight.” Id.
Plaintiff argues that the ALJ’s rejection of Dr. Ross’ finding that he is limited to unskilled work is
unsupported by substantial evidence because it is unsupported by any contrary medical opinion. Docket
16‐1, p. 16. Plaintiff cites to case‐law within this Circuit, including precedent from this Court, to the
effect that, because ALJs are unqualified to interpret medical data in functional terms, an ALJ may not
made cash or unreported income, which appears to have been SGA (hearing testimony). However, since the
income has not been completely verified, the undersigned continues with the entire disability analysis.” ALJ’s
decision, AR, p. 22.
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effectively reject every medical opinion in the administrative record regarding what a claimant can still
do despite his impairments and then proceed determine the claimant’s residual functional capacity
(RFC) based solely on non‐medical factors and the ALJ’s own lay impressions.2 The Commissioner, on
the other hand, cites authorities for the proposition that that an ALJ’s determination of a claimant’s RFC
must be based on a consideration of the medical and non‐medical evidence as a whole, with an
emphasis on the latter.3
There is no bright‐line test for determining when a claimant’s RFC may properly be determined
based solely on non‐medical evidence (with no supporting medical opinion). See Brown v.
Commissioner, 5:12‐CV‐145‐LLK, 2013 WL 1703885 (W.D.Ky.) quoting Campbell v. Commissioner, 178
F.Supp.2d 123, 134 (D.Conn.2001) (Where there is no “compelling non‐medical evidence to the
contrary, in the absence of competing medical opinions, then there is not substantial evidence
necessary to support the ALJ's [RFC] determination”). In general, the more the impairment and
associated symptoms are subjective in nature (as opposed to physical/objective/clinical), the more likely
it is that solely non‐medical factors are sufficient.
In this case, the Court need not decide on which side of the un‐bright line described above this
case falls4 because the jobs identified by the vocational expert (VE) (and relied on by the ALJ in support
2
See Docket 16‐1, p. 16 citing Brown v. Commissioner, 5:12‐CV‐00145‐LLK, 2013 WL 1703885189 (W.D.Ky.)
(“Having rejected all medical opinions of record pertaining to the Plaintiff's RFC …, the ALJ’s RFC … was not
supported by substantial evidence”).
3
See Docket 23, pp. 5‐6 citing Social Security Ruling (SSR) 96‐5p (A medical source statement is only one of several
factors that an ALJ considers in determining a claimant’s RFC) and Simpson v. Commissioner, 344 Fed.Appx. 181,
194 (6th Cir. 2009) (An ALJ is prohibited only from completely disregarding a medical opinion).
4
If pressed, the Court would be inclined to err on the side of preserving the ALJ’s decision. See Blakley v.
Commissioner, 581 F.3d 399, 406 (6th Cir. 2009) (The substantial‐evidence standard of review presupposes that
there is a “zone of choice” within which the ALJ may go either way without judicial inference).
Near the conclusion of the administrative hearing, the ALJ commented: “I think they’ve got you at unskilled work.
You sound like you’re much more intelligent than you tested. … Well you’ve done nice today. You presented
yourself.” AR, pp. 78‐79.
It is not self‐evidence that Dr. Ross, who never saw Plaintiff, was in a better position than the ALJ to assess
whether Plaintiff was truly limited to unskilled work.
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of his fifth‐step denial decision) are, in fact, unskilled.5 Hence, any error committed by the ALJ in
rejecting Dr. Ross’ opinion, which the ALJ characterized as limiting Plaintiff to unskilled work, was, at
worst, harmless.
Order
Plaintiff’s motion for judgment on the pleadings (Docket 16) is DENIED, the Commissioner’s final
decision is AFFIRMED, and Plaintiff’s complaint is DISMISSED.
April 13, 2017
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The VE testified that all the jobs of small products assembler, laundry sorter, cleaner, and inspector are SVP 1 and
SVP 2. AR, pp. 80‐81. SVP, or specific vocational preparation, means “the amount of lapsed time required by a
typical worker to learn the techniques, acquire the information, and develop the facility needed for average
performance in a specific job‐worker situation.” 20 C.F.R. § 656.3. A rating of SVP 1 means a short demonstration
is the amount of training required to learn the job, and a rating of SVP 2 means up to one month of training is
required to learn the job. Id. The regulations define unskilled work as “work which needs little or no judgment to
do simple duties that can be learned on the job in a short period of time ... and a person can usually learn to do the
job in 30 days, and little specific vocational preparation and judgment are needed.” 20 C.F.R. § 416.968.
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