Cassidy v. Commissioner of Social Security

Filing 22

OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

REBECCA CASSIDY,
Plaintiff,

Case No. 1:16-CV-465

v.
HON. PAUL L. MALONEY
COMMISSIONER OF SOCIAL
SECURITY,

Defendant,
/
OPINION
Plaintiff brings this pro se action pursuant to 42 U.S.C. § 405(g), seeking judicial
review of a final decision of the Commissioner of Social Security denying her claim for Disability
Insurance Benefits (DIB) and Supplemental Security Income (SSI) under Titles II and XVI of the
Social Security Act.1 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.
STANDARD OF REVIEW
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 & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). The Court may not conduct a de novo

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While Plaintiff brings this action pro se, the Court notes Plaintiff was represented by counsel at the
administrative hearing.

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 Health & Human Servs., 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 evidence in the record fairly detracts from its
weight. See Richardson v. Sec’y of Health & Human Servs., 735 F.2d 962, 963 (6th Cir. 1984). 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 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
Plaintiff was forty-six years of age as of her alleged disability onset date. (PageID.58,
154.) She previously obtained a high school education and had been employed as a real estate sales
agent, a machine packager, and as a retail cashier. (PageID.121–122, 310.) Plaintiff previously
applied for benefits on February 23, 2011, alleging disability beginning May 30, 2010. That
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application was denied by an ALJ on October 12, 2012, and does not appear to have been further
pursued. (PageID.137–153.) In the instant matter, Plaintiff applied for benefits on April 30, 2013,
again alleging disability beginning May 30, 2010. Plaintiff alleged she was disabled due to a
herniated disc, manic depression, and lower back pain. (PageID.154, 166, 255–267.) Plaintiff’s
applications were denied on June 27, 2013, after which time she requested a hearing before an ALJ.
(PageID.181–191.) On November 24, 2014, Plaintiff appeared with her counsel before ALJ
Christopher Helms for an administrative hearing with testimony offered by Plaintiff and a vocational
expert (VE). (PageID.83–135.) In an unfavorable decision dated December 5, 2014, the ALJ found
Plaintiff was not disabled. (PageID.58–82.) On March 24, 2016, the Appeals Council declined to
review the ALJ’s decision, making it the Commissioner’s final decision in the matter.
(PageID.24–29.) Plaintiff subsequently initiated this action under 42 U.S.C. § 405(g).
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).2 If the Commissioner can make a

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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 work he or she has done in the past, 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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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 the claimant’s
residual functional capacity (RFC). See 20 C.F.R. §§ 404.1545, 416.945.
Plaintiff has the burden of proving the existence and severity of limitations caused
by her impairments and that she is precluded from performing past relevant work through step four.
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). At step five, it is the
Commissioner’s burden “to identify a significant number of jobs in the economy that accommodate
the claimant’s residual functional capacity (determined at step four) and vocational profile.” Id.
ALJ Helms determined that Plaintiff’s claim failed at step five. The ALJ began by
acknowledging Plaintiff’s prior application for benefits, and stating he found no reason why that
application should not remain final. (PageID.62.) Applying the doctrine of res judicata, the ALJ
concluded the prior decision was administratively final, and stated that he would only consider the
evidence concerning the period subsequent to that decision, dated October 12, 2012. (PageID.62.)
Proceeding with the evaluation, at step one the ALJ found that Plaintiff had not engaged in
substantial gainful activity since the prior decision, October 12, 2012. (PageID.64.) At step two,
the ALJ found Plaintiff suffered from the severe impairments of: (1) multilevel degenerative disc
disease; (2) the late effects of varicose veins and long-term anticoagulant therapy; (3) a dysthymic
disorder; and (4) an obese body habitus. (PageID.64–65.) At step three, the ALJ determined
Plaintiff did not have an impairment or combination of impairments that met or equaled the
requirements of the Listing of Impairments found in 20 C.F.R. Pt. 404, Subpt. P, App. 1.
(PageID.66–69.) At step four, the ALJ found that Plaintiff retained the RFC based on all the
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impairments to perform:
sedentary work3 as defined in 20 CFR 404.1567(a) and 416.967(a)
except the claimant can only occasionally balance, stoop, kneel,
crouch, crawl, and/or climb ramps and stairs. The claimant can never
climb ladders, ropes, or scaffolds. However, the claimant requires the
option to alternate between sitting and standing for five to ten
minutes, every thirty minutes. The claimant should avoid all
exposure to work at unprotected heights, and around moving,
mechanical parts. Lastly, the claimant is limited to performing
simple, routine, and repetitive tasks and making simple, work-related
decisions.
3.

The Regulations define sedentary work as the
ability to occasionally lift 10 pounds maximum, stand
and/or walk for up to 2 hours in an 8 hour work
period, and sit for up to 6 hours in an 8 hour work
period (20 CFR 404.1567, 416.967, and SSR 83-10).
(PageID.69) (emphasis in original.) Continuing with the fourth step, the ALJ determined that
Plaintiff was unable to perform any of her past relevant work. (PageID.75.)
At the fifth step, the ALJ questioned the VE to determine whether a significant
number of jobs exist in the economy that Plaintiff could perform given her limitations. See
Richardson, 735 F.2d at 964. The VE testified that Plaintiff could perform other work as an
assembler (2,000 regional and 40,000 national positions), packager (2,000 regional and 35,000
national positions), and office helper (2,100 and 80,000 national positions). (PageID.122–129.)
Based on this record, the ALJ found that Plaintiff was capable of making a successful adjustment
to work that exists in significant numbers in the national economy. (PageID.76.)
Accordingly, the ALJ concluded that Plaintiff was not disabled from May 30, 2010,
through December 5, 2014, the date of decision. (PageID.77.)

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DISCUSSION
On July 6, 2016, the Court issued a Notice Regarding Consent and Directing Filing
of Briefs. (ECF No. 9.) With respect to the filing of briefs, the Court stated that “Plaintiff’s initial
brief . . . must contain a Statement of Errors, setting forth in a separately numbered section, each
specific error of fact or law upon which Plaintiff seeks reversal or remand.” (PageID.964.)
Plaintiff’s initial brief, as well as her two supplemental filings, fail to identify any alleged error
supporting relief in this matter. (See ECF Nos. 17, 19, 21.)
Nevertheless, given Plaintiff’s pro se status, the Court has interpreted Plaintiff’s brief
indulgently which leads the Court to conclude that Plaintiff has asserted the two claims addressed
below.
1.

The ALJ’s Evaluation of the Evidence.

Plaintiff claims the Commissioner made a factual error in her evaluation of the
evidence in two respects: first, by referencing a May 29, 2013, treatment record from the Allegan
Psychological Service and, second, by stating Plaintiff’s physicians found she was not a surgical
candidate. (PageID.977, 980.) In assessing a claimant’s RFC, Social Security Ruling 96-8p requires
that the assessment include “a narrative discussion describing how the evidence supports each
conclusion, citing specific medical facts . . . and nonmedical evidence.” SSR 96–8P, 1996 WL
374184, at *7 (July 2, 1996).
The first error that Plaintiff references appears in the agency’s initial June 27, 2013,
denial where it was noted that the agency’s decision was made, in part, on records from Allegan
Psychological Serices. (PageID.181.) Plaintiff has submitted a letter from Allegan Psychological
Service stating that she was not a patient at that facility. (PageID.294.) The Court finds no
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reversible error here for two reasons. First, this appears to be a harmless scrivener’s error as there
is a record of the same date from Allegan Community Mental Health. (PageID.721.) Second, this
alleged error is from the agency’s initial disability decision. It does not appear in the ALJ’s decision
that became the final decision of the Commissioner. Indeed, the ALJ noted he was not bound by the
prior decision and had taken a “fresh and new” look at the evidence. (PageID.86.) This earlier error,
therefore, does not appear to be contained in the ALJ’s final decision, and accordingly is not subject
to this Court’s jurisdiction. See Brown v. Comm’r of Soc. Sec., No. 1:08-CV-183, 2009 WL
465708, at *5 (W.D. Mich. Feb. 24, 2009).
As for the claim regarding her surgery, Plaintiff does not reference a specific portion
of the ALJ’s decision. It appears, however, she believes the ALJ erred in making the following
statement: [T]he claimant testified that her physician told her she needed surgery, yet the record
reflected that [it] was a suggestion[.]” (PageID.74.) Here, the ALJ has referenced an October 15,
2014, treatment note from Dr. Sonia Eden, M.D. In that note, the doctor stated “I have told
[Plaintiff] she is a candidate for a surgical fusion or stabilization of the spondylolisthesis, and this
may help with her radicular leg pain. She has also told me she is a smoker. I have shared with
[Plaintiff] that given that she has Meridian Health, she would have to stop smoking in order to have
a fusion to ensure that she heals appropriately. At this point she would like to think about her
options. She will contact us in the future and let is know how she would like to proceed.”
(PageID.955.) The ALJ’s description of this record was not unreasonable. Accordingly, this claim
of error is rejected.3
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Though not raised in her submissions to this Court, in her letter to the Appeals Council, Plaintiff raised an
argument similar to the above by disputing the ALJ’s statement that she attends church multiple times a week, and states
she does not know where the ALJ got that information from. (PageID.46, 67.) The ALJ’s observation, however, is
consistent with a primary assessment of service and support needs at Allegan Community Mental Health (Allegan CMH)

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2.

The ALJ’s RFC Determination is Supported by Substantial Evidence.

A claimant’s RFC represents her ability to perform “work-related physical and mental
activities in a work setting on a regular and continuing basis,” defined as “8 hours a day, for 5 days
a week, or an equivalent work schedule.” SSR 96–8P, 1996 WL 374184 at *1 (July 2, 1996); see
also Payne v. Comm’r of Soc. Sec., 402 F. App’x 109, 116 (6th Cir. 2010). It is further defined as
“the maximum degree to which the individual retains the capacity for sustained performance of the
physical-mental requirements of jobs.” 20 C.F.R. Pt. 404. Subpt. P, App. 2 § 200.00(c). With
respect to mental abilities, the regulations provide that:
When we assess your mental abilities, we first assess the nature and
extent of your mental limitations and restrictions and then determine
your residual functional capacity for work activity on a regular and
continuing basis. A limited ability to carry out certain mental
activities, such as limitations in understanding, remembering, and
carrying out instructions, and in responding appropriately to
supervision, coworkers, and work pressures in a work setting, may
reduce your ability to do past work and other work.
20 C.F.R. §§ 405.1545(c), 416.945(c). The thrust of Plaintiff’s argument is that the RFC does not
fully account for her impairments. But Plaintiff fails to point to records indicating these impairments
impose on her limitations greater than those accounted for in the RFC.
As an initial matter, much of Plaintiff’s submissions concern her condition outside
the relevant time period of October 12, 2012, through December 5, 2014. Plaintiff reports, for
example, treatment for knee pain and dizzy spells in 2016. (PageID.978, 987.) She also points to
a diagnosis of fibromyalgia in 2015. (PageID.982.) Plaintiff further points to treatment for arthritis
in her knee and shoulders, as well as for an ankle fracture. (PageID.979.) To the extent Plaintiff

on November 30, 2012, where Plaintiff reported attending church on Sunday and Bible Study on Thursday.
(PageID.672.)

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claims that she is unable to work because of issues subsequent to the ALJ’s decision, her recourse
is in the filing of a new application, rather than in this action.
Regarding Plaintiff’s allegation that the ALJ’s RFC assessment failed to fully account
for her impairments during the relevant period, the Court disagrees. Plaintiff contends, for example,
that she was unable to work because of her headaches. But the record before the ALJ contained very
little treatment for Plaintiff’s headaches. For example, on January 22, 2013, Dr. Kelly Ash
recommended Plaintiff keep a headache diary and get an eye exam to treat her headaches. Plaintiff
was treating her headaches with Tylenol. (PageID.413.) At other times, Plaintiff’s headaches were
listed among a plethora of other treatment, and they were generally treated with medication.
(PageID.438.) Notably, Plaintiff points to no record, nor can the Court find one, demonstrating how
her headaches rendered her incapable of performing the activities contemplated in the RFC.
Much of the record contains treatment notes concerning Plaintiff’s degenerative disc
disease and low back pain. But again, while the Court does not doubt that Plaintiff is limited
because of her back condition, none of these records indicate that Plaintiff is limited to an extent
greater than that accounted for in the RFC. “[T]he mere diagnosis of an impairment does not render
an individual disabled nor does it reveal anything about the limitations, if any, it imposes upon an
individual.” McKenzie v. Comm’r of Soc. Sec., No. 99–3400, 2000 WL 687680 at *5 (6th Cir. May
19, 2000) (citing Foster v. Bowen, 853 F.2d 488, 489 (6th Cir.1988)); see, e.g., Higgs v. Bowen, 880
F.2d 860, 863 (6th Cir.1988) (“[t]he mere diagnosis of arthritis, of course, says nothing about the
severity of the condition”). This case would perhaps be different if these records were accompanied
by an explanation from Plaintiff’s physicians detailing how Plaintiff’s records indicate she has
restrictions greater than those accounted for in the RFC. But in any event, it is the ALJ who has the

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ultimate responsibility for assessing a Plaintiff’s RFC, based on all of the relevant evidence. See 20
C.F.R. §§ 404.1545(a), 416.945(a). Here, the ALJ gave a thorough and accurate recitation of the
medical evidence, and then formulated Plaintiff’s RFC. This determination is supported by
substantial evidence.
On July 18, 2013, Plaintiff underwent a lumbar MRI scan. (PageID.884.) There was
facet arthrosis through the lumbar spine, with a small left posterolateral disc protrusion at L5/S1,
which contributed to a mild neural foraminal steonsis. There was no clear evidence of nerve root
compromise. (PageID.885.) There was also a small posterior disc extrusion at T11-12, but with no
compromise of the conus medullaris. (PageID.885.) At several subsequent appointments, it was
noted that Plaintiff had a slow gait, and her back had a moderately limited range of motion. But she
had a negative straight leg raise test and full strength in her legs. (PageID.745, 751, 755.) While
Dr. Sonia Eden did indicate Plaintiff was a candidate for surgery, Plaintiff stated she wanted to think
about her options. (PageID.955.) Nothing here is inconsistent with the ALJ’s evidence summary,
and furthermore does nothing to indicate the extent of her abilities.
On her function report, Plaintiff reported being able to prepare meals with help from
her children. (PageID.326.) She further reported she could do some house cleaning and laundry.
(PageID.326.) She is able to drive and ride in a car, and go shopping. (PageID.327.) She can go
to church and doctor’s appointments. (PageID.328.) While these records certainly indicate that
Plaintiff is limited due to her degenerative disc disease, they do not support her assertion that she is
incapable of performing a reduced range of sedentary work.
In sum, the ALJ found, after considering the entire record, that Plaintiff was capable
of performing a reduced range of sedentary work. This determination is supported by substantial

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evidence. Plaintiff’s claim of error is denied.
CONCLUSION
For the reasons set forth herein, the Commissioner’s decision is supported by
substantial evidence and therefore will be AFFIRMED.
A separate judgment shall issue.

Dated: April 12, 2017

/s/ Paul L. Maloney
PAUL L. MALONEY
United States District Judge

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