Sims, Jr. v. Commissioner of Social Security
Filing
12
OPINION; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JIMMY SIMS JR.,
Plaintiff,
Hon. Ellen S. Carmody
v.
Case No. 1:17-cv-902
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. The parties have agreed to proceed in this Court for
all further proceedings, including an order of final judgment. 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 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.
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PROCEDURAL POSTURE
Plaintiff was 41 years of age on his alleged disability onset date. (PageID.234).
Plaintiff successfully completed high school and worked previously as a tool and die repairer, tool
machine/set-up operator, and an inspector. (PageID.75-76). Plaintiff applied for benefits on
April 23, 2014, alleging that he had been disabled since December 7, 2011, due to a back injury,
right leg arthritis and numbness, diabetes, asthma, depression, high blood pressure, sleep apnea,
acid reflux disease, colon polyps, and tendonitis in his hands. (PageID.234-43, 281).
Plaintiff=s applications were denied, after which time he requested a hearing before
an Administrative Law Judge (ALJ). (PageID.129-232). On August 11, 2016, ALJ James
Prothro conducted a hearing with testimony being offered by Plaintiff and a vocational expert.
(PageID.84-127). In a written decision dated September 8, 2016, the ALJ determined that
Plaintiff was not disabled. (PageID.65-77). The Appeals Council declined to review the ALJ=s
determination, rendering it the Commissioner=s final decision in the matter. (PageID.26-31).
Plaintiff subsequently initiated this appeal pursuant to 42 U.S.C. ' 405(g), seeking judicial review
of the ALJ=s decision.
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
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1. An individual who is working and engaging in substantial gainful activity will not be found to be Adisabled@
regardless of medical findings (20 C.F.R. '' 404.1520(b), 416.920(b));
2. An individual who does not have a Asevere impairment@ will not be found Adisabled@ (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 Ameets or equals@ a listed impairment in Appendix 1 of Subpart P of Regulations No.
4, a finding of Adisabled@ will be made without consideration of vocational factors. (20 C.F.R. ''
404.1520(d), 416.920(d));
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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
his 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 he can satisfy his burden by demonstrating that his impairments are so severe that
he is unable to perform his previous work, and cannot, considering his 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, Plaintiff bears the burden of proof through step
four of the procedure, the point at which his 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 Plaintiff suffered from: (1) low back injury status post
L4-5 anterior discectomy and fusion; (2) obesity; (3) mild motor and sensory polyneuropathy of
the bilateral lower extremities; (4) patella-femoral spurring; and (5) depression, severe
impairments that 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.67-70). With respect to Plaintiff=s residual
4. If an individual is capable of performing her past relevant work, a finding of Anot 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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functional capacity, the ALJ determined that Plaintiff retained the capacity to perform sedentary
work subject to the following limitations: (1) he can lift and carry ten pounds occasionally and less
than ten pounds frequently; (2) during an 8-hour workday, he stand/walk for two hours and sit for
six hours; (3) he can only frequently push/pull with his right lower extremity; (4) he requires a
cane for balance and walking; (5) he can occasionally climb ramps/stairs, but can never climb
ladders, ropes, or scaffolds; (6) he can frequently balance and occasionally stoop, kneel, crouch,
and crawl; (7) he must avoid concentrated exposure to extreme cold, heat, humidity, fumes, odors,
dusts, gases, and poor ventilation; and (8) he is limited to simple work and no fast paced work.
(PageID.70).
The ALJ found that Plaintiff was unable to perform his 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, his
limitations notwithstanding. See Richardson, 735 F.2d at 964. While the ALJ is not required
to question a vocational expert on this issue, Aa 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 reported that there existed approximately 97,000 jobs in the
national economy which an individual with Plaintiff=s RFC could perform, such limitations
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notwithstanding. (PageID.121-26). This represents a significant number of jobs. See, e.g.,
Taskila v. Commissioner of Social Security, 819 F.3d 902, 905 (6th Cir. 2016) (“[s]ix thousand
jobs in the United States fits comfortably within what this court and others have deemed
‘significant’”). Accordingly, the ALJ concluded that Plaintiff was not entitled to disability
benefits.
I.
Medical Evidence
The administrative record contained more than 300 pages of medical treatment
records. The ALJ discussed at length this evidence, specifically stating:
The claimant alleges disability resulting from impairments
including back injury with back surgery, arthritis and numbness in
the right leg that requires the use of a cane, asthma, depression,
hypertension and tendinitis of both hands (Exhibit 1E/2). In the
Function Report, the claimant reported he could no longer lift heavy
objects; he could not sit or stand for more than 15 to 20 minutes
without pain. Moreover, he reported because of his medications he
was often tired or dizzy (Exhibit 12E/1). The claimant testified he
had no relief in his symptoms after surgery. He stated he used a cane
for balance, as he had no feeling in his right leg. He testified he had
pain levels ranging from five to ten on a ten-point pain scale; as a
result, of pain and medications he testified he had to lie down and
nap frequently throughout the day.
Regarding the claimant's allegations of disabling impairments, the
objective medical evidence reduces the consistency of the claimant's
allegations but supports the above residual functional capacity. In
terms of the claimant's alleged impairments, the evidence showed
the claimant sustained an injury to his back in December 2011
(Exhibit 3F/28). A Magnetic Resonance Imaging (MRI) of the
lumbar spine showed moderate focal disc extrusion at the L4-5 level
and mild spondylitic changes (Exhibit 3F/13). The claimant was
diagnosed with degenerative disc disease of the lumbar spine
(Exhibit 4F/49).
Office treatment notes from Mark Moulton, M.D., through February
2013 noted the claimant continued with back pain complaints
despite treatment (Exhibit 3F/25-28). He failed conservative
treatment with physical therapy, injection therapy and pain
medication management (Exhibit 1F/1; 3F/28; 4F/8, 10-15, 42-55).
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As a result, in April 2013 the claimant underwent anterior lumbar
decompressive discectomy and fusion at L4-L5 (Exhibit 1F/1-8).
Postoperative x-rays showed no evidence of complications (Exhibit
1F/9; 3F/12). July 2013 progress notes from Dr. Moulton, noted the
claimant reported his back pain had continued to improve and it was
about 70 percent better (Exhibit 3F/22).
The claimant had complaints of right sided back pain and numbness
down the right lower extremity, but objective diagnostic imaging
was less supportive of his allegations (Exhibit 3F/5, 17-20). A
November 2013 Magnetic Resonance Imaging of the lumbar spine
revealed only a small annular bulge at L4-L5 with no significant
canal narrowing and a small disc bulge unchanged at L5-S1 (Exhibit
4F/74; 10F/47). A December 2013 EMG showed a mild motor and
sensory polyneuropathy of the bilateral lower extremities (Exhibit
3F/5-9; 9F). A February 2014 bone SPECT study of the lumbar
spine showed mildly increased uptake at the site of the bone graft
and in the right L4-5 facet joint which corresponded to only mild
degenerative facet disease and asymmetrical increased uptake in the
right sacroiliac joint, consistent with right-sided sacroiliitis (Exhibit
3F/4). The claimant received a right SI joint injection (Exhibit
3F/29; 4F/60).
In August 2014, the claimant was referred and participated in a
physical consultative examination. Thuy Nguyen, D.O., on
examination noted the claimant walked with a cane, but did not walk
with a limp. He was able to bend forward, squat 10 percent and heel
and toe walk without difficulty. Straight leg raise was negative and
range of motion of the lumbar spine was within normal limits.
Moreover, there was no ligamentous laxity of the knees and no
effusions or crepitus of the joints (Exhibit 5F/3).
Subsequent office treatment records from Dr. Moulton covering the
period September 2014 through January 2015 showed the claimant
continued with reports of pain (Exhibit 11F/7-12). However, x-rays
were excellent and showed he was solidly healed (Exhibit 7F/4).
The examination was mostly normal as the claimant had some pain
with range of motion in the lumbar spine, but straight leg raise was
negative, there were no muscle spasms and range of motion was
normal in the lower extremities with negative Patrick and Gaenslen
signs. Moreover, reflexes and sensory examinations were normal in
both lower extremities (Exhibit 7F/2-3). The claimant reported his
back pain was manageable with medications (Exhibit 13F/11-16).
No significant changes were made to his medications. He underwent
facet joint nerve injections on the right at L3, L4 and L5 (Exhibit
6F; 7F/l). Office treatment notes from his primary care physician
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noted the claimant was counseled on weight loss with dietary
modifications and exercise (Exhibit 8F).
In April 2015, the claimant reported a history of bilateral knee pain
(Exhibit 11F/5). An x-ray of the left knee showed only minor
patellar spurring. The right knee x-ray was negative (Exhibit
11F/17; 13F/38-39). The examination showed no effusion or
swelling, his patella was intact, he had some mild tenderness and
crepitus in both knees, but range of motion was good (Exhibit
13F/9). Treatment was conservative with recommended physical
therapy (Exhibit I0F/1). In October 2015 the claimant presented to
Martin Pallante, M.D., who noted the claimant had positive patellar
grind test, however provocative meniscal test was negative and he
had full range of motion and no effusion. He had some tightness in
the hamstrings and IT band, but he was stable to varus and valgus
stress and was stable in the posterolater corners (Exhibit 13F/47).
Dr. Pallante indicated the claimant had patellofemoral pain and poor
patellar tacking mechanics. He further noted the claimant had gained
significant weight along with back issues. Dr. Pallante opined
conservative treatment with weight loss, core strengthening,
improved flexibility, leg strength and improved gait mechanics was
the best solution for the claimant’s condition (Exhibit 13F/47).
Subsequent records through December 2015 noted despite
recommendations the claimant had failed to attend physical therapy
and he was not very interested in therapy (Exhibit 13F/45-47). A
MRI of the lumbar spine revealed only mild bilateral neural
foraminal stenosis at L5-S1 with otherwise stable degenerative and
postoperative findings of the lumbar spine (Exhibit l0F/35; 13F/51).
Dr. Pallante again emphasized that even a home program done
consistently, if a structured program was not an option, would help
his back and knee pain significantly (Exhibit 13F/45). Additional
records through April 2016 noted the claimant continued his
conservative treatment regimen with medications and L3 and L4
transforaminal injections (Exhibit 13F/4; 14F).
As to the claimant's mental health impairments, the evidence
showed a diagnosis of mild major depressive disorder (Exhibit
13F/21). The claimant's treatment had been mostly limited to
medications from his primary care physician (Exhibit 8F; 12F/9;
13F/25-26, 28). The evidence showed some minor adjustments in
medications over time due to some fluctuating symptoms, but
mostly showed the claimant's symptoms were generally controlled,
with no difficulty in functioning and at times stable with no
medications (Exhibits 13F/23, 28; 12F/9). Moreover, the claimant's
mild depressive symptoms did not require treatment from a
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specialist, outpatient counseling, emergency department care or
inpatient psychiatric treatment (Exhibits 1F-15F).
Longitudinally, the evidence showed largely normal mental status
examinations. The claimant was oriented to time, place, person and
situation, he had appropriate mood and affect, normal insight and
normal judgment, no suicidal ideation, no agitation and no mood
swings, he was not hopeless, forgetful nor did he have any memory
loss (Exhibit 8F/12, 34-35, 45; 13F/9, 13, 23, 30).
(PageID.71-73).
II.
Appeals Council Order
Plaintiff appealed the ALJ’s decision to the Appeals Council. In support of his
appeal, Plaintiff submitted to the Appeals Council additional medical evidence which was not
presented to the ALJ. The Appeals Council received the evidence into the record and considered
it before declining to review the ALJ’s determination. (PageID.26-31, 33-43, 54). Plaintiff
argues that he is entitled to relief on the ground that the Appeals Council improperly failed to
remand the matter to the ALJ for consideration of this additional medical evidence.
This Court lacks the jurisdiction to review the decision by the Appeals Council not
to remand this matter to the ALJ as such is an internal agency matter not within the Court’s
jurisdiction to review “final decisions” by the Social Security Administration. See, e.g., White v.
Commissioner of Social Security, 2014 WL 4976754 at *11 (W.D. Mich., Oct. 3, 2014). The
Court’s authority is limited to assessing whether the Commissioner’s final decision denying
benefits is supported by substantial evidence. See 42 U.S.C. § 405(g) (expressly limiting judicial
review to “any final decision of the Commissioner of Social Security”); Bowens v. Barnhart, 101
Fed. Appx. 93, 94 (6th Cir., June 11, 2004) (the jurisdiction of the federal courts extends only to
the review of “final decisions of the Commissioner”). Accordingly, this argument is rejected.
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III.
Sentence Six Remand
Plaintiff also argues that this Court should remand this matter to the ALJ for
consideration of the medical evidence in question. To obtain such relief, Plaintiff must establish
that the evidence is new and material, and that good cause existed for not presenting it in the prior
proceeding. Cline v. Commissioner of Social Security, 96 F.3d 146, 148 (6th Cir. 1996). To
satisfy the materiality requirement, Plaintiff must show that there exists a reasonable probability
that the Commissioner would have reached a different result if presented with the new evidence.
See Sizemore v. Secretary of Health and Human Serv’s, 865 F.2d 709, 711 (6th Cir. 1988).
Plaintiff bears the burden to make these showings. See Hollon ex rel. Hollon v. Commissioner of
Social Security, 447 F.3d 477, 483 (6th Cir. 2006). Plaintiff offers no argument as to why he was
unable to timely present this evidence to the ALJ. This alone constitutes a sufficient basis to
reject Plaintiff’s argument. Nevertheless, even if this shortcoming is overlooked the result is the
same as it is not reasonable to argue that consideration of this evidence supports a different result.
The first item of additional evidence is a report authored by Chris Jansen-Yee,
Ph.D. on or about July 18, 2017. (PageID.33-43). The doctor reported that Plaintiff’s condition
“has been severe lately” rendering Plaintiff incapable of performing “less physically demanding
work.” (PageID.42). The doctor further reported that Plaintiff’s “physical limitations and pain
make any sustained physical positions, e.g., standing or walking, difficult to manage after short
periods of time.” (PageID.42). The doctor’s report was prepared almost one year after the
ALJ’s decision and there is no indication therein that the doctor’s opinion relates to the time period
prior to the ALJ’s decision. Moreover, the doctor did not articulate any specific limitations which
are inconsistent with the ALJ’s RFC determination. While the doctor reported that Plaintiff was
incapable of standing or walking for lengthy periods of time, the ALJ limited Plaintiff to sedentary
work without prolonged standing or walking.
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The second item of evidence is a statement authored by Dr. Mark Moulton on
October 21, 2016, more than one month after the ALJ’s decision. (PageID.54). The doctor
reported that Plaintiff “is clearly disabled” and “is very limited with respect to any type of function
that he can do.” (PageID.54). First, the doctor’s opinion that Plaintiff is disabled is entitled to
no weight as such is a matter reserved to the Commissioner. See 20 C.F.R. §§ 404.1527(d)(1);
416.927(d)(1).
Furthermore, the doctor did not identify any specific limitations which are
inconsistent with the ALJ’s RFC assessment. Moreover, the doctor did not indicate that his
opinions or observations concerned the time period prior to the ALJ’s decision. Accordingly, the
Court cannot consider this additional evidence and there exists no basis to remand this matter for
its consideration.
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. A
judgment consistent with this opinion will enter.
Date: September 26, 2018
/s/ Ellen S. Carmody
ELLEN S. CARMODY
United States Magistrate Judge
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