Warren v. Social Security, Commissioner of

Filing 12

OPINION AND ORDER denying 9 Motion for Summary Judgment; granting 10 Motion for Summary Judgment. Signed by District Judge Marianne O. Battani. (KDoa)

UNTIED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LORI ANN WARREN,
Plaintiff,
CASE NO. 2:13-cv-13523
v.
HON. MARIANNE O. BATTANI
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_______________________ __________/

OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

I.

INTRODUCTION
This matter is before the Court on the parties’ cross-motions for summary

judgment. Plaintiff, Lori Ann Warren, alleges that an Administrative Law Judge
improperly denied her Social Security disability benefits. Specifically, Plaintiff alleges
that the ALJ adopted an inaccurate residual functional capacity that forms the basis of
the Vocational Expert’s testimony regarding what work Plaintiff is capable of performing.
(Doc. 9.) Defendant, Commissioner of Social Security, argues that the ALJ’s decision is
supported by substantial evidence and that the burden of demonstrating that Plaintiff
could perform jobs existing in significant numbers in the local and national economies
was met. (Doc. 10.) For the reasons discussed below, the Court GRANTS Defendant’s
Motion for Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment.

II.

STATEMENT OF FACTS

On February 22, 2011, Plaintiff filed a Title II claim for a period of disability and
disability insurance benefits, alleging a disability onset date of December 14, 2009. (Tr.
56.) This claim was initially denied by the state agency on May 20, 2011. (Tr. 65.) At
Plaintiff’s written request, a hearing before ALJ Regina Sobrino was conducted on
February 27, 2012. (Tr. 32.) Plaintiff appeared at the hearing and testified to the
limiting effects of her medical condition. (Id.) On April 25, 2012, ALJ Sobrino issued a
decision denying Plaintiff’s claim. (Tr. 17.) This decision became the final decision of
the Commissioner when, on June 12, 2013, the Social Security Administration’s
Appeals Council denied Plaintiff’s request for further administrative review. (Tr. 1.) The
present suit followed.
The ALJ found that Plaintiff suffers from the following severe impairments:
degenerative disc disease and an affective disorder. (Tr. 22.) With respect to
psychological “B-Criteria,” Plaintiff was found to have mild restrictions in activities of
daily living; mild restrictions in social functioning; moderate difficulties with
concentration, persistence, and pace; and to have experienced no episodes of
decompensation. (Tr. 23.) The ALJ determined that Plaintiff had the following residual
functional capacity (“RFC”):
[A] range of light work as defined in 20 CFR 404.1567(b), with the
following additional limitations: lifting and carrying a maximum of 5 pounds
frequently and 10 pounds occasionally, with no pushing or pulling of more
than 5 pounds occasionally; no climbing of ladders; occasional climbing of
stairs, crouching, and stooping; no crawling; no reaching above shoulder
level and no more than frequent reaching in other directions; and no
exposure to hazards or vibration. The claimant is limited to simple, routine
work.
(Tr. 24.) In light of this RFC, the ALJ found that Plaintiff was unable to perform any past
relevant work. (Tr. 26.) However, based on Vocational Expert (“VE”) Stephanee A.
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Leech’s testimony, the ALJ concluded that Plaintiff remained capable of performing a
number of unskilled occupations at both the light and sedentary exertional levels,
including receptionist/office clerk and surveillance monitor. (Tr. 27.)
Plaintiff alleges in her Function Report that she is able to lift ten to fifteen pounds;
can bend, stand, and walk for short periods of time; is not able to reach; can kneel on
occasion; can climb two flights of stairs; and can maintain attention for half hour periods
of time. (Tr. 156.) She states that pushing and pulling irritate her neck and that her
cervical spine nerve irritation causes muscle weakness in her right arm and fingers. (Tr.
151.) Her reported activities of daily living include light dusting, washing dishes, daily
shopping, attending doctor appointments, and caring for her dog. (Tr. 152.) She
reports difficulty with dressing and personal care to the extent that they require bending
her neck and raising her arms. (Id.)
The medical evidence supports Plaintiff’s allegation that she began to suffer from
her impairment in late 2009. An MRI of the cervical spine dated October 10, 2009,
demonstrated multilevel spondylotic changes, greatest at C5-C6, with mild ventral
impression on the thecal sac and moderate to marked bilateral foraminal narrowing.
(Tr. 202.) At a visit to her primary care physician, Dirk Snyder, M.D., on November 16,
2009, Plaintiff was diagnosed with arthritis and sprain of the head and neck, resulting in
moderately reduced flexion and extension of the neck and decreased right arm strength.
(Tr. 245.) Dr. Snyder found that this condition prevented her from working and provided
her a written excuse from work until her scheduled surgery. (Id.)
On January 15, 2010, Plaintiff underwent a corpectomy and four-level cervical
fusion surgery, performed by Avery Jackson, III, M.D., for her chronic neck pain,
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degenerative disc disease, segmental instability, and cervical kyphotic angulation
deformity. (Tr. 173.) On March 23, 2011, Plaintiff’s MRI revealed post-surgical changes
in the fusion surgery. (Tr. 203.) Specifically, Richard Kovan, M.D., observed loosening
of the screws of a side plate and anterior shift of the side plate. (Tr. 255.) Plaintiff
related to her doctors that she did not experience significant improvement after surgery.
(Id.; Tr. 328.) In fact, on December 7, 2010, Dr. Snyder determined that Plaintiff’s head
and neck movement was severely restricted in all directions. (Tr. 224.) On December
20, 2010, Dr. Kovan noted that pre- and post-operative epidural spinal injections
provided her no benefit, while physical therapy had provided only minimal benefit. (Tr.
264.) At that time, however, Plaintiff was taking only over-the-counter NSAIDs for pain
relief. (Id.) Dr. Kovan also observed reduced cervical range of motion but full active
range of motion in bilateral upper extremities. (Tr. 265.)
On April 27, 2011, Plaintiff sought an opinion from Vivakanand Palavali, M.D.,
after another doctor advised her to undergo a second surgery in order to revise the
cervical plate. (Tr. 328.) Plaintiff denied radiating arm pain and trouble walking, but
complained of numbness and weakness in her right hand. (Id.) She also denied taking
pain medication at that time. (Id.) Dr. Palavali observed limited range of motion of the
neck in all directions but full upper extremity strength. (Id.) He also noted decreased
sensation over the right hand, but normal strength, sensation, and gait in lower
extremities. (Id.) Upon reviewing cervical x-rays and a CT scan, Dr. Palavali
recommended that Dr. Jackson perform surgery if Plaintiff’s pain became bad enough.
(Tr. 332.)

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Plaintiff visited D.V. Pasupuleti, M.D., for a neurology consult on July 13, 2011,
and underwent an EMG study. (Tr. 341-42.) Dr. Pasupuleti reported abnormal results
showing electroneuromyographic evidence in the right upper extremity, as well as
chronic, mild cervical paraspinal denervation. (Id.) He opined that such findings are
typical in conditions such as degenerative joint and disc disease. (Tr. 342) Dr.
Pasupuleti further noted the absence of superimposed mononeuropathy, such as carpal
tunnel syndrome, or polyneuropathy. (Id.)
On August 25, 2011, Dr. Snyder provided a Medical Statement outlining
Plaintiff’s physical restrictions. According to Dr. Snyder, Plaintiff suffers from
degenerative disc disease, cervicalgia, and radiculopathy. (Tr. 405.) These conditions
indefinitely prevent Plaintiff from lifting, pushing, or pulling in excess of twenty pounds.
(Id.) Further, Dr. Snyder states that Plaintiff is precluded from performing her prior
work. (Id.)
With respect to Plaintiff’s psychological impairments, the record indicates that
she suffers from an affective disorder, for which she takes prescription medication. (Tr.
240, 255, 265.) While Plaintiff does not appear to visit a therapist or mental health
professional, her primary care doctors have indicated improvement and stability of her
anxiety and mood with medication. (See id.) Based on his review of the record, state
agency medical expert Ashok Kaul, M.D., determined that Plaintiff suffers from severe
impairments of affective and anxiety disorders but that her “B-Criteria” limitations were
all mild. (Tr. 61.)
III.

STANDARD OF REVIEW

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This Court has jurisdiction to review the Commissioner's final administrative
decision pursuant to 42 U.S.C. § 405(g). Judicial review is limited to determining
whether the Commissioner’s decision is supported by substantial evidence and was
made pursuant to proper legal standards. Rogers v. Comm'r of Soc. Sec., 486 F.3d
234, 241 (6th Cir. 2007). Substantial evidence is "more than a scintilla of evidence but
less than a preponderance; it is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." Id. (internal quotation marks omitted). If
the Commissioner's decision is supported by substantial evidence, "it must be affirmed
even if the reviewing court would decide the matter differently and even if substantial
evidence also supports the opposite conclusion." Cutlip v. Sec'y of Health & Human
Servs., 25 F.3d 284, 286 (6th Cir. 1994) (internal citations omitted).
When reviewing the Commissioner's factual findings for substantial evidence, the
Court is limited to an examination of the record and must consider that record as a
whole. Wyatt v. Sec'y of Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992).
There is no requirement, however, that either the ALJ or this Court discuss every piece
of evidence in the administrative record. Kornecky v. Comm'r of Soc. Sec., 167 F.
App'x 496, 508 (6th Cir. 2006). Further, this Court does "not try the case de novo,
resolve conflicts in evidence, or decide questions of credibility." Bass v. McMahon, 499
F.3d 506, 509 (6th Cir. 2007).

IV.

DISCUSSION
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A. Residual Functional Capacity
The record demonstrates that the RFC is based on and supported by substantial
evidence. The ALJ identified and discussed Plaintiff’s treating physicians’ office visit
notes, observations made during examinations, and medical opinions. (See Tr. 25-26.)
Moreover, the ALJ accorded significant weight to the opinions of Drs. Snyder, Palavali,
and Kovan. (Id.) In the absence of state agency medical expert opinion, the ALJ relied
exclusively on the physical restrictions recommended by these treating physicians and
communicated by Plaintiff. The ALJ’s analysis was therefore consistent with regulations
requiring that the findings of a treating physician as to the nature and severity of an
impairment be accorded controlling weight if they are “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and [are] not inconsistent with
the other substantial evidence in [the] case record.” See 20 C.F.R. § 404.1527(c)(2).
Additionally, as argued by Defendant, Plaintiff has not identified what medical opinions
the decision fails to address.
The only medical source to provide an RFC recommendation was Dr. Snyder.
As discussed in the decision, Dr. Snyder found Plaintiff capable of lifting, pushing, and
pulling no more than twenty pounds, with no limitations on sitting, standing, or walking.
(Tr. 405.) The decision also discussed Dr. Palavali’s evaluation, which noted limited
range of motion in the neck, normal gait, and unremarkable upper extremities with full
(5/5) strength. (Tr. 328.) Dr. Kovan’s examination, though not fully detailed in the
decision, is consistent with Dr. Palavali’s – Dr. Kovan found decreased range of motion
in the neck, full active range of motion and normal strength in both upper extremities,
and no muscle atrophy. (Tr. 265.)
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The RFC adopted by the ALJ is significantly more restrictive than Dr. Snyder’s
recommendation. It limits Plaintiff to lifting, pushing, and pulling a maximum of five to
ten pounds occasionally. Additionally, the decision and RFC take into account Plaintiff’s
decreased range of motion in her neck by restricting her to no reaching above shoulder
level and no more than frequent reaching in other directions. While the decision
acknowledges that the cervical plate has shifted since Plaintiff’s original surgery, it
recognizes that she has not elected to undergo a second surgery as recommended by
Dr. Kovan. (Tr. 25.) Furthermore, the decision mentions that Plaintiff has managed her
pain largely with over-the-counter medicine and minimal prescription medication. (See
Tr. 26.) In light of the medical reports discussed above, the physical portion of the RFC
is supported by substantial evidence.
Plaintiff argues that the ALJ’s credibility and RFC determinations were
erroneously premised on Plaintiff’s reported activities of daily living. The decision
discusses the activities of daily living and physical limitations described by Plaintiff in her
Function Report. The ALJ found these allegations to be “not fully credible because they
are not fully supported by objective medical evidence.” (Tr. 25.) Indeed, this credibility
determination was based on an analysis of the medical evidence, as discussed above.
The ALJ considered Plaintiff’s activities of daily living only insofar as to make “B-Criteria”
findings. (Tr. 23.) Accordingly, Plaintiff’s argument is unavailing.
Plaintiff also contends that a limitation to simple, routine work was improper. To
the contrary, such a non-exertional limitation is consistent with the “B Criteria” finding
that Plaintiff has moderate impairment in concentration, persistence, and pace, resulting
from her affective disorder. This limitation is also consistent with Plaintiff’s Function
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Report, alleging difficulties with concentration. (Tr. 156.) Therefore, the mental aspects
of the RFC are also supported by substantial evidence.
B. Step Five Analysis
Once it is determined that Plaintiff lacks the capacity to perform past relevant
work, the burden of proof shifts to the Commissioner to show that Plaintiff is capable of
performing other substantial gainful activity existing in the national economy. Varley v.
Sec’y of Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987). To satisfy this
burden, there must be “a finding supported by substantial evidence that [plaintiff] has
the vocational qualifications to perform specific jobs.” Id. (quoting O’Banner v. Sec’y of
Health, Educ. & Welfare, 587 F.2d 321, 323 (6th Cir. 1978). Substantial evidence may
consist of VE testimony in response to a “hypothetical” question only if this question
accurately portrays the plaintiff’s physical and mental impairments. Id.
In the present case, it was determined that Plaintiff lacked the physical capacity
to perform any of her past relevant work. (Tr. 26.) Therefore, according to Varley,
Defendant carries the burden of showing that Plaintiff is capable of performing other
work. See 820 F.2d at 779. At the hearing, the hypothetical posed to the VE mirrors
the RFC but includes the following additional limitations: occasional balancing; frequent
handling, fingering, and feeling; and no need to drive as a work duty. (Tr. 49.)
Therefore, as the RFC is supported by substantial evidence per the foregoing
discussion, the hypothetical is likewise supported. Additionally, this more restrictive
hypothetical is more favorable to the Plaintiff.
The VE testified that an individual with the foregoing restrictions would be
capable of performing a number of jobs at the sedentary exertional level, such as
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unskilled office clerk, reception/information clerk, surveillance systems monitor, packer,
and assembler. (Tr. 49-50.) Additionally, the VE identified a number of positions at the
light exertional level compatible with the hypothetical. (Tr. 51.) In response to further
questioning regarding the degree of neck movement these jobs involved, the VE
responded that the reception /information clerk position would involve predominantly
neutral neck positioning, with very occasional flexion. (Tr. 50.) Because the
hypothetical accurately portrays Plaintiff’s physical impairments, the ALJ was justified in
relying on this testimony as substantial evidence.
Plaintiff objects that the hypothetical did not sufficiently take into account her
testimony regarding difficulties with neck movement, sitting, standing, and walking. As
described above, the ALJ questioned the VE regarding the degree of neck movement
required and identified at least one position involving predominantly neutral neck
positioning. Therefore, this concern was amply taken into account in the Step Five
analysis. With respect to Plaintiff’s testimony, she stated that she is unable to lift at all
with her right hand, can lift only five to ten pounds with her left hand, cannot push with
either arm, can sit or stand for fifteen minutes at a time, and can walk two to four blocks.
(Tr. 37-39.) While the decision does not specifically address and resolve these
allegations, this lapse is ultimately inconsequential because the medical evidence
nonetheless supports the ALJ’s findings. See Rabbers v. Comm’r of Soc. Sec., 582
F.3d 647, 654 (6th Cir. 2009) (finding that remand is unnecessary for harmless error).
Accordingly, the ALJ’s Step Five analysis identifying jobs that Plaintiff would be capable
of performing is proper and supported by substantial evidence.
V. CONCLUSION
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For the foregoing reasons, the Court GRANTS Defendant’s Motion for Summary
Judgment and DENIES Plaintiff’s Motion for Summary Judgment.
IT IS SO ORDERED.
Date:

July 28, 2014

s/Marianne O. Battani
MARIANNE O. BATTANI
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their
respective email addresses or First Class U.S. mail to the non-ECF participants on July 28, 2014.
s/ Kay Doaks
Case Manager

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