Smith v. Commissioner of Social Security

Filing 18

OPINION; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CAROL ELAINE SMITH,
Plaintiff,

Case No. 1:16-cv-626

v.
HON. JANET T. NEFF
COMMISSIONER OF SOCIAL
SECURITY,
Defendant,
/
OPINION
This is a social security action brought under 42 U.S.C. § 405(g) seeking judicial
review of a final decision by the Commissioner of the Social Security Administration
(Commissioner). Plaintiff seeks review of the Commissioner’s decision denying her claim for
disability insurance benefits (DIB) and supplemental security income (SSI) under Titles II and XVI
of the Social Security Act. 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
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 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 fifty-nine years of age on the date of the Administrative Law Judge’s
(ALJ) decision. (PageID.35, 76, 87.) She completed high school as well as some college, and was
previously employed as a cashier. (PageID.56, 70.) Plaintiff applied for benefits on June 25, 2013,
alleging disability beginning June 1, 2007, due to osteoarthritis, carpal tunnel syndrome, a left knee
replacement, depression, anxiety, hypertension, and high cholesterol. (PageID.76–77, 87–88,
224–238.) Plaintiff’s applications were denied on November 8, 2013, after which time she requested

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a hearing before an ALJ. (PageID.116–150.) On November 6, 2014, Plaintiff appeared with her
representative before ALJ James Kent for an administrative hearing with testimony being offered
by Plaintiff and a vocational expert (VE). (PageID.52–74.) In a written decision dated December
22, 2014, the ALJ determined that Plaintiff was not disabled. (PageID.35–51.) On April 1, 2016,
the Appeals Council declined to review the ALJ’s decision, making it the Commissioner’s final
decision in the matter. (PageID.26–30.) 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).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
the claimant’s residual functional capacity (RFC). See 20 C.F.R. §§ 404.1545, 416.945.

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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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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 Kent determined that Plaintiff’s claim failed at the fourth step of the evaluation.
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her
alleged disability onset date. (PageID.52.) At step two, the ALJ determined Plaintiff had the severe
impairments of degenerative joint disease of the bilateral knees status-post surgeries, degenerative
joint disease of the bilateral hips, and obesity. (PageID.40.) At the third step, the ALJ found that
Plaintiff did not have an impairment or combination of impairments that met or equaled the
requirements of the Listing of Impairments. (PageID.43.) At the fourth step, the ALJ determined
Plaintiff retained the RFC based on all the impairments:
to perform light work as defined in 20 CFR 404.1567(b) and
416.967(b). She could lift 20 pounds occasionally and 10 pounds
frequently. The claimant could sit for six hours of an eight-hour
workday. She could stand/walk for six hours of an eight-hour
workday. The claimant could occasionally climb ramps and stairs.
She could not climb ladders, ropes, or scaffolds. The claimant had no
non-exertional mental limitations.
(PageID.44.) Continuing with the fourth step, the ALJ found that Plaintiff was capable of
performing her past relevant work as a cashier. The ALJ determined that this work did not require
the performance of work-related activities precluded by Plaintiff’s RFC. (PageID.46.) Having made
his determination at step four, the ALJ completed the analysis and entered a finding that Plaintiff
had not been under a disability from the alleged disability onset date, June 1, 2007, through the date

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of decision, December 22, 2014. (PageID.46–47.)
DISCUSSION
Plaintiff raises a number of issues. The Court will consider them in the order in
which they appear during the sequential evaluation.
1.

The ALJ’s Step Two Determination.

Plaintiff first claims that, based on the findings of a consultative examiner, the ALJ
should have found that her carpal tunnel syndrome amounted to a severe impairment. (PageID.579.)
The Court finds no reversible error.
At step two of the sequential disability analysis articulated above, the ALJ must
determine whether the claimant suffers from a severe impairment. A severe impairment is defined
as “any impairment or combination of impairments which significantly limits your physical or
mental ability to do basic work activities,” 20 C.F.R. §§ 404.1520(c), 416.920(c) and which lasts
or can be expected to last “for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A).
An impairment “can be considered not severe only if it is a slight abnormality that
minimally affects work ability regardless of age, education, and experience.” Rogers v. Comm’r of
Soc. Sec., 486 F.3d 234, 243 n.2 (6th Cir. 2007) (quoting Higgs v. Bowen, 880 F.2d 860, 862 (6th
Cir. 1988)); see also Williamson v. Sec’y of Health & Human Servs., 796 F.2d 146, 151 (6th Cir.
1986) (an impairment is less than severe only if it is a “slight abnormality which has such a minimal
effect on the individual that it would not be expected to interfere with the individual’s ability to
work, irrespective of age, education and work experience”).
As Plaintiff points out, step two of the sequential disability process is considered a

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“de minimis hurdle” designed to subject to dismissal only those claims which are “totally
groundless” from a medical standpoint. Rogers, 486 F.3d at 243 n.2; Higgs, 880 F.2d at 860.
“[T]his lenient interpretation of the severity requirement in part represents the courts’ response to
the Secretary’s questionable practice in the early 1980s of using the step two regulation to deny
meritorious claims without proper vocational analysis.” Long v. Apfel, 1 F. App’x 326, 331 (6th Cir.
Jan. 9, 2001) (quoting Higgs, 880 F.2d at 862).
Even assuming Plaintiff is correct that the ALJ should have found her carpal tunnel
syndrome was a severe impairment, however, the Court notes the Sixth Circuit has held that where
the ALJ finds the presence of a severe impairment at step two and proceeds to continue through the
remaining steps of the analysis, the alleged failure to identify as severe some other impairment
constitutes harmless error so long as the ALJ considered the entire medical record in rendering his
decision. See Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987);
Anthony v. Astrue, 266 F. App’x 451, 457 (6th Cir. 2008) (citing Maziarz, 837 F.2d at 244); Fisk
v. Astrue, 253 F. App’x 580, 583–84 (6th Cir. 2007) (same). This is fatal to Plaintiff’s claim
because here the ALJ determined that Plaintiff suffered from a severe impairment at step two of the
sequential analysis and continued with the remaining steps thereof, considering in detail the
evidence of record, including the records Plaintiff depends on in her argument. (PageID.41.) Thus,
even if the Court assumes that the ALJ erred in failing to find that Plaintiff suffered from additional
severe impairments, such does not call into question the substantiality of the evidence supporting
the ALJ’s decision. See Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535–36 (6th Cir. 2001)
(recognizing that remand to correct an error committed by the ALJ unnecessary where such error
was harmless); Fisher v. Bowen, 869 F.2d 1055,1057 (7th Cir. 1989) (“no principle of administrative

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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”). This claim of error is
accordingly denied.
2.

The ALJ’s RFC Determination.

Next, Plaintiff contends the ALJ’s RFC determination is flawed because it failed to
including any functional limitations regarding the ability to handle. (PageID.577–579.) Plaintiff
depends on the report of Dr. Michael Geoghegan, a consultative examiner. (PageID.470.) RFC is
the most, not the least, a claimant can do despite her impairments. 20 C.F.R. §§ 404.1545(a)(1),
416.945(a)(1); Branon v. Comm’r of Soc. Sec., 539 F. App’x. 675, 677 n. 3 (6th Cir. 2013); Griffeth
v. Comm’r of Soc. Sec., 217 F. App’x 425, 429 (6th Cir. 2007). It is an administrative finding of fact
made by the ALJ on the record as a whole. The Court finds substantial evidence supporting the
ALJ’s determination here.
Plaintiff depends on the doctor’s diagnosis of carpal tunnel syndrome, and his
statement that Plaintiff had “50% of grip strength remaining bilaterally as tested grossly” and that
she would “likely benefit from occupational therapy.” (PageID.469.) As is well recognized,
however, “the 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, 880 F.2d at 863 (“[t]he mere diagnosis of
arthritis, of course, says nothing about the severity of the condition”). While Plaintiff correctly
quotes from the doctor’s report, the report does not contain any functional limitations from the
doctor. Thus this report may very well be consistent with the RFC. Indeed, Dr. Geoghegan also

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noted that Plaintiff is able to pick up a coin, fasten a button, and open a door. There was a negative
Tinel’s and Phalen’s sign bilaterally. (PageID.469.) Even though the report was reviewed by Dr.
Saadat Abbasi, an agency consultant, the doctor nonetheless concluded Plaintiff had no manipulative
limitations. (PageID.95.) The ALJ gave the opinion “significant weight” noting it was consistent
with Plaintiff’s medical history. (PageID.46.) Accordingly, substantial evidence supports the ALJ’s
RFC determination and this claim of error is denied.
3.

The ALJ’s Step Four Determination.

As noted above, the ALJ decided Plaintiff’s claim at step four. Specifically, he
determined that Plaintiff was capable of performing her past relevant work as a cashier, noting “I
find the claimant’s past work as a “Cashier” (1998-2002) is ‘relevant.’ She performed this job
within the last 15 years, it lasted long enough for her to master the skills involved, and her income
was “substantial” in 1999 and 2000 (2E and 6D).” (PageID.46.) After making this determination,
the ALJ proceeded to find that Plaintiff was not disabled.

See 20 C.F.R. §§ 404.1520(e),

416.920(e). Plaintiff argues her work as a cashier does not qualify as past relevant work because
it did not satisfy the requirement that it include substantial gainful activity within the relevant time
period.
“Generally, past relevant work is defined as work that you have done within the past
15 years, that was substantial gainful activity, and that lasted long enough for you to learn to do it.
Substantial gainful activity is in turn defined as work that involves significant physical or mental
activities done for pay or profit.” Wright–Hines v. Comm’r of Soc. Sec., 597 F.3d 392, 395–96 (6th
Cir. 2010) (internal citations and quotation marks omitted); see also 20 C.F.R. §§ 404.1565(a),
416.965(a) (“We consider that your work experience applies when it was done within the last 15

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years, lasted long enough for you to learn to do it, and was substantial gainful activity.”). The Social
Security Administration has promulgated guidelines for determining whether a claimant’s earnings
amount to substantial gainful activity. Under agency regulations, if Plaintiff’s average monthly
earnings exceeded a threshold amount of $700 in 1999 and 2000, those earnings will “ordinarily
show” that Plaintiff was engaged in substantial gainful activity. 20 C.F.R. §§ 404.1574(b)(2),
416.974(b)(2). On the other hand, if Plaintiff’s average earnings are below that threshold, the
Commissioner “will generally consider” those earnings do not amount to substantial gainful activity
and “will generally not consider other information in addition to [ ] earnings.” 20 C.F.R. §§
404.1574(b)(3), 416.974(b)(3).
The ALJ based his determination by referencing two exhibits, 2E and 6D. On their
face, however, both exhibits conflict with each other. Exhibit 2E contains Plaintiff’s self provided
work history on an agency disability report. There, Plaintiff reported working as a cashier at a toy
store from January 1998 to January 2002. (PageID.253.) Turning to Exhibit 6D, however, this work
does not appear on Plaintiff’s earning history. Instead, work at Tish Inc, and One Hour Martinizing
of Battle Creek are referenced. (PageID.243.) Neither of this work spans the time period referenced
in Exhibit 2E and identified by the ALJ. Therefore, it appears the ALJ was crediting Plaintiff’s
description of her work, but applied the earnings history from a document that clearly indicates
Plaintiff was not performing this work. This discrepancy, however, was not resolved by the ALJ.
The Commissioner must provide a statement of evidence and reasons on which the decision is based.
See 42 U.S.C. § 405(b)(1). An ALJ “must articulate, at some minimum level, his analysis of the
evidence to allow the appellate court to trace the path of his reasoning.” Diaz v. Chater, 55 F.3d 300,
307 (7th Cir.1995). “It is more than merely ‘helpful’ for the ALJ to articulate reasons . . . for

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crediting or rejecting particular sources of evidence. It is absolutely essential for meaningful
appellate review.” Hurst v. Sec’y of Health & Human Services, 753 F.2d 517, 519 (6th Cir.1985)
(quoting Zblewski v. Schweiker, 732 F.2d 75, 78 (7th Cir. 1984)). Here, the Court cannot trace the
path of the ALJ’s reasoning. Accordingly, this matter will be reversed and remanded under sentence
four of 42 U.S.C. § 405(g). On remand, the Commissioner will be directed to provide a more
detailed explanation of the step four determination and to resolve the conflict among the relevant
exhibits from the administrative record.
4.

Remand is Appropriate.

As detailed herein, the ALJ’s conclusion that Plaintiff was not disabled is not
supported by substantial evidence. While the Court finds that the ALJ’s decision fails to comply
with the relevant legal standards, Plaintiff can be awarded benefits only if proof of her disability is
“compelling.” Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994) (the
court can reverse the Commissioner’s decision and award benefits if all essential factual issues have
been resolved and proof of disability is compelling). While the ALJ’s decision is not supported by
substantial evidence, there does not exist compelling evidence that Plaintiff is disabled. Evaluation
of Plaintiff’s claim requires the resolution of factual disputes which this Court is neither authorized
nor competent to undertake in the first instance. The Court, concludes, therefore, that the
Commissioner’s decision must be reversed and this matter remanded for further factual findings.

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CONCLUSION
For the reasons set forth herein, the Commissioner's decision will be REVERSED
and REMANDED under sentence four of 42 U.S.C. § 405(g). This matter is remanded for further
factual findings, including but not necessarily limited to, reconsideration of Plaintiff’s past relevant
work.
Dated: January 26, 2017

/s/ Janet T. Neff
JANET T. NEFF
UNITED STATES DISTRICT JUDGE

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