Warner v. Commissioner of Social Security
Filing
17
OPINION affirming the Commissioner's decision; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, jal)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JERRIE WARNER,
Plaintiff,
Hon. Ellen S. Carmody
v.
Case No. 1:15-CV-903
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
______________________________________/
OPINION
This is an action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C.
§ 405(g), to review a final decision of the Commissioner of Social Security denying Plaintiff’s claim
for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) under Titles II and
XVI of the Social Security Act. On November 30, 2015, the parties agreed to proceed in this Court
for all further proceedings, including an order of final judgment. (ECF No. 10).
Section 405(g) limits the Court to a review of the administrative record and provides
that if the Commissioner’s decision is supported by substantial evidence it shall be conclusive. The
Commissioner has found that Plaintiff is not disabled within the meaning of the Act. For the reasons
stated below, the Court concludes that the Commissioner’s decision is supported by substantial
evidence. Accordingly, the Commissioner’s decision is affirmed.
STANDARD OF REVIEW
The Court’s jurisdiction is confined to a review of the Commissioner’s decision and
of the record made in the administrative hearing process. See Willbanks v. Sec’y of Health and
Human Services, 847 F.2d 301, 303 (6th Cir. 1988). The scope of judicial review in a social security
case is limited to determining whether the Commissioner applied the proper legal standards in
making her decision and whether there exists in the record substantial evidence supporting that
decision. See Brainard v. Sec’y of Health and Human Services, 889 F.2d 679, 681 (6th Cir. 1989).
The Court may not conduct a de novo review of the case, resolve evidentiary
conflicts, or decide questions of credibility. See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.
1984). It is the Commissioner who is charged with finding the facts relevant to an application for
disability benefits, and her findings are conclusive provided they are supported by substantial
evidence. See 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla, but less than a
preponderance. See Cohen v. Sec’y of Dep’t of Health and Human Services, 964 F.2d 524, 528 (6th
Cir. 1992) (citations omitted). It is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Bogle v.
Sullivan, 998 F.2d 342, 347 (6th Cir. 1993). In determining the substantiality of the evidence, the
Court must consider the evidence on the record as a whole and take into account whatever in the
record fairly detracts from its weight. See Richardson v. Sec’y of Health and Human Services, 735
F.2d 962, 963 (6th Cir. 1984).
As has been widely recognized, the substantial evidence standard presupposes the
existence of a zone within which the decision maker can properly rule either way, without judicial
interference. See Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (citation omitted). This
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standard affords to the administrative decision maker considerable latitude, and indicates that a
decision supported by substantial evidence will not be reversed simply because the evidence would
have supported a contrary decision. See Bogle, 998 F.2d at 347; Mullen, 800 F.2d at 545.
PROCEDURAL POSTURE
On July 29, 2009, Plaintiff applied for disability benefits alleging that she had been
disabled since October 3, 2008. (PageID.150). Following an administrative hearing, these claims
were denied by ALJ Jessica Inouye on January 11, 2012. (PageID.150-64). On May 30, 2012,
Plaintiff again applied for benefits, alleging that she had been disabled since October 1, 2008, due
to disc disease, wrist pain, back and neck pain, carpal tunnel, sleep apnea, Hepatitis C, fibromyalgia,
chronic pain, depression, anxiety, and PTSD. (PageID.297-306, 342). Plaintiff was 43 years of age
on her alleged disability onset date. (PageID.297). She successfully completed high school and
worked previously as a laborer and certified nurse’s assistance. (PageID.61).
Plaintiff’s application was denied, after which time she requested a hearing before
an Administrative Law Judge (ALJ). (PageID.172-295). On October 29, 2013, Plaintiff appeared
before ALJ James Prothro with testimony being offered by Plaintiff, a vocational expert, and a
psychiatric expert. (PageID.72-135). In a written decision dated February 5, 2014, the ALJ
determined that Plaintiff was disabled as of April 5, 2013, but not prior thereto. (PageID.43-66).
The Appeals Council declined to review the ALJ’s determination, rendering it the Commissioner’s
final decision in the matter. (PageID.27-31). Plaintiff subsequently initiated this pursuant to 42
U.S.C. § 405(g), seeking judicial review of the ALJ’s decision.
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ALJ Prothro declined to revisit the previous decision by ALJ Inouye, a determination
which Plaintiff does not challenge. (PageID.47, 757). Thus, the decision that Plaintiff was not
disabled through January 11, 2012, is not in dispute. The only issue presented by Plaintiff’s appeal
is whether she was disabled between January 12, 2012, and April 5, 2013, the date on which ALJ
Prothro determined that her disability began.
ANALYSIS OF THE ALJ’S DECISION
The social security regulations articulate a five-step sequential process for evaluating
disability. See 20 C.F.R. §§ 404.1520(a-f), 416.920(a-f).1 If the Commissioner can make a
dispositive finding at any point in the review, no further finding is required. See 20 C.F.R. §§
404.1520(a), 416.920(a).
The regulations also provide that if a claimant suffers from a
nonexertional impairment as well as an exertional impairment, both are considered in determining
her residual functional capacity. See 20 C.F.R. §§ 404.1545, 416.945.
The burden of establishing the right to benefits rests squarely on Plaintiff’s shoulders,
and she can satisfy her burden by demonstrating that her impairments are so severe that she is unable
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1. An individual who is working and engaging in substantial gainful activity will not be found to be “disabled”
regardless of medical findings (20 C.F.R. §§ 404.1520(b), 416.920(b));
2. An individual who does not have a “severe impairment” will not be found “disabled” (20 C.F.R. §§ 404.1520(c),
416.920(c));
3. If an individual is not working and is suffering from a severe impairment which meets the duration requirement and
which “meets or equals” a listed impairment in Appendix 1 of Subpart P of Regulations No. 4, a finding of “disabled”
will be made without consideration of vocational factors. (20 C.F.R. §§ 404.1520(d), 416.920(d));
4. If an individual is capable of performing her past relevant work, a finding of “not disabled” must be made (20 C.F.R.
§§ 404.1520(e), 416.920(e));
5. If an individual’s impairment is so severe as to preclude the performance of past work, other factors including age,
education, past work experience, and residual functional capacity must be considered to determine if other work can
be performed (20 C.F.R. §§ 404.1520(f), 416.920(f)).
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to perform her previous work, and cannot, considering her age, education, and work experience,
perform any other substantial gainful employment existing in significant numbers in the national
economy. See 42 U.S.C. § 423(d)(2)(A); Cohen, 964 F.2d at 528. While the burden of proof shifts
to the Commissioner at step five of the sequential evaluation process, Plaintiff bears the burden of
proof through step four of the procedure, the point at which her residual functioning capacity (RFC)
is determined. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Walters v. Comm’r of Soc. Sec.,
127 F.3d 525, 528 (6th Cir. 1997) (ALJ determines RFC at step four, at which point claimant bears
the burden of proof).
The ALJ determined that as of January 12, 2012, Plaintiff suffered from the following
severe impairments: (1) degenerative disc disease of the cervical spine, status post August 2010
anterior discectomy and fusion at C5-6; (2) degenerative disc disease of the lumbar spine; (3) rotator
cuff tear of the left shoulder; (4) diffuse myofascial pain syndrome of the neck and back; (5) an
affective disorder, variously diagnosed but most recently described as a major depressive disorder,
chronic, severe, and with psychotic symptoms; (6) anxiety disorder and post-traumatic stress
disorder; and (7) history of alcohol abuse. (PageID. 48). The ALJ determined that prior to April
5, 2013, Plaintiff’s impairments, whether considered alone or in combination with other
impairments, failed to satisfy the requirements of any impairment identified in the Listing of
Impairments detailed in 20 C.F.R., Part 404, Subpart P, Appendix 1. (PageID.50-52).
With respect to Plaintiff’s residual functional capacity, the ALJ found that prior to
April 5, 2013, Plaintiff retained the ability to perform light work subject to the following limitations:
(1) she requires the ability to sit/stand at will; (2) she can occasionally climb ramps/stairs, but can
never climb ladders, ropes, or scaffolds; (3) she can only occasionally balance, stoop, kneel, crouch,
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and crawl; (4) she can only occasionally reach and lift overhead with her non-dominant left upper
extremity; (5) she must avoid concentrated exposure to vibration, pulmonary irritants, and hazards;
(6) she can understand, remember, and carry out simple, routine tasks that do not involve fast pace;
and (7) she can have only occasional contact with the public. (PageID.52).
The ALJ found that Plaintiff could not perform her past relevant work at which point
the burden of proof shifted to the Commissioner to establish by substantial evidence that a
significant number of jobs exist in the national economy which Plaintiff could perform, her
limitations notwithstanding. See Richardson, 735 F.2d at 964. While the ALJ is not required to
question a vocational expert on this issue, “a finding supported by substantial evidence that a
claimant has the vocational qualifications to perform specific jobs” is needed to meet the burden.
O’Banner v. Sec’y of Health and Human Services, 587 F.2d 321, 323 (6th Cir. 1978) (emphasis
added). This standard requires more than mere intuition or conjecture by the ALJ that the claimant
can perform specific jobs in the national economy. See Richardson, 735 F.2d at 964. Accordingly,
ALJs routinely question vocational experts in an attempt to determine whether there exist a
significant number of jobs which a particular claimant can perform, his limitations notwithstanding.
Such was the case here, as the ALJ questioned a vocational expert.
The vocational expert testified that there existed approximately 25,100 jobs in the
state of Michigan which an individual with Plaintiff’s RFC could perform, such limitations
notwithstanding. (PageID.129-32). This represents a significant number of jobs. See Born v. Sec’y
of Health and Human Services, 923 F.2d 1168, 1174 (6th Cir. 1990); Hall v. Bowen, 837 F.2d 272,
274 (6th Cir. 1988); Martin v. Commissioner of Social Security, 170 Fed. Appx. 369, 374 (6th Cir.,
Mar. 1, 2006). The ALJ concluded, therefore, that Plaintiff was not entitled to disability benefits
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prior to April 5, 2013. The ALJ further determined, however, that as of April 5, 2013, Plaintiff’s
ability to function deteriorated such that her impairments satisfied Section 12.04 of the Listing of
Impairments thus entitling her to disability benefits. (PageID.63-65).
I.
The ALJ’s RFC is Supported by Substantial Evidence
Plaintiff raises a single argument in her appeal. Plaintiff argues that the ALJ’s RFC
determination failed to sufficiently account for the opinions offered by James Wargel, Ph.D., the
psychiatric expert who testified at the administrative hearing. Plaintiff is not challenging the
physical/exertional limitations articulated in the ALJ’s RFC, but is instead arguing that the ALJ’s
finding that Plaintiff can (1) understand, remember, and carry out simple, routine tasks that do not
involve fast pace and (2) have occasional contact with the public overstates Plaintiff’s mental
residual functional capacity. The Court is not persuaded.
At the administrative hearing, Dr. Wargel testified that as of April 5, 2013, the date
on which Plaintiff was hospitalized following a suicide attempt, Plaintiff’s impairments satisfied
Section 12.04 (Affective Disorders) of the Listing of Impairments. (PageID.111-29). With respect
to Plaintiff’s functional abilities for the time period prior to April 5, 2013, the doctor’s testimony
was far less specific. In fact, the doctor stated that whether Plaintiff was disabled during this earlier
time period “would seem to me to be perhaps an area that’s more appropriate for the judge and for
the VE [vocational expert].” (PageID.123). Nevertheless, Dr. Wargel did state that during this
earlier time period, Plaintiff could understand and remember “moderately simple instructions” and
was only moderately limited in her ability to “interact appropriately with the general public.”
(PageID.117-18). These statements are not inconsistent with the ALJ’s RFC determination.
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ALJ Inouye, in her previous decision denying benefits, found that Plaintiff “retains
the ability to perform work that is simple, unskilled, non-production-paced, and repetitive,” but
“cannot work around large crowds.” (PageID.156). While phrased slightly differently, ALJ
Inouye’s RFC finding, with respect to Plaintiff’s mental impairments, is basically the same as ALJ
Prothro’s RFC finding. Plaintiff is not challenging ALJ Inouye’s decision or RFC finding. As ALJ
Prothro noted, there is nothing in the medical record which supports the argument that Plaintiff’s
mental or emotional functioning appreciably deteriorated from January 11, 2012, through her April
5, 2013 hospitalization. (PageID.47-61). This assessment is supported by substantial evidence.
Treatment notes dated July 3, 2012, indicate that Plaintiff was experiencing
“moderate” depression. (PageID.626). Plaintiff’s mental status was unremarkable and she was
noted to be taking medication and participating in therapy. (PageID.625-27). Treatment notes dated
December 3, 2012, do not indicate that Plaintiff’s depression or anxiety had worsened or required
more aggressive treatment. (PageID.669-76). Treatment notes dated March 7, 2013, indicate that
Plaintiff was finding it “somewhat difficult” to function, but “does not present with anxious/fearful
thoughts or fatigue.” (PageID.677). Plaintiff’s mental status was unremarkable. (PageID.680). In
sum, there is simply no medical evidence suggesting that Plaintiff’s mental or emotional
impairments appreciably deteriorated between January 11, 2012, and April 5, 2013. Thus, the ALJ’s
RFC determination in this regard is supported by substantial evidence.
In support of her argument, Plaintiff points to the check-box form that Dr. Wargel
completed. While the doctor indicated that Plaintiff experienced “marked” limitations in certain
areas of functioning even prior to her April 5, 2013 hospitalization, there is no indication or
explanation as to the extent that such “marked” limitations impaired Plaintiff’s ability to function.
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Plaintiff’s speculation on this point is not persuasive. More importantly, as previously noted, the
doctor testified at the administrative hearing that prior to April 5, 2013, Plaintiff could understand
and remember “moderately simple instructions” and was only moderately limited in her ability to
“interact appropriately with the general public.” These statements are entirely consistent with the
ALJ’s RFC determination. Simply put, Dr. Wargel’s specific testimony on this point trumps
Plaintiff’s unfounded speculation. Accordingly, this argument is rejected.
CONCLUSION
For the reasons articulated herein, the Court concludes that the ALJ’s decision is
supported by substantial evidence. Accordingly, the Commissioner’s decision is affirmed. The
Court further determines that appeal of this matter would not be taken in good faith. See Smith v.
Commissioner of Social Security, 1999 WL 1336109 at *2 (6th Cir., Dec. 20, 1999); Leal v.
Commissioner of Social Security, 2015 WL 731311 at *2 (N.D. Ohio, Feb. 19, 2015); 28 U.S.C. §
1915(a)(3). A judgment consistent with this opinion will enter.
Date: June 15, 2016
/s/ Ellen S. Carmody
ELLEN S. CARMODY
United States Magistrate Judge
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