Miller v. Commissioner of Social Security

Filing 31

Memorandum Opinion and Order that the decision of the Commissioner denying Miller's application for disability insurance benefits is affirmed. (Related Docs. # 1 , 15 ). Signed by Magistrate Judge William H. Baughman, Jr., on 09/27/2017. (S,MD)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

ROBERT A. MILLER,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 1:16 CV 1392

MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.

MEMORANDUM OPINION AND
ORDER

Introduction
Before me1 is an action by Robert A. Miller under 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner of Social Security denying his application
for disability insurance benefits.2 The Commissioner has answered3 and filed the transcript
of the administrative record.4 Under my initial5 and procedural6 orders, the parties have

1

ECF # 15. The parties have consented to my exercise of jurisdiction.

2

ECF # 1.

3

ECF # 11.

4

ECF # 12.

5

ECF # 7.

6

ECF # 16.

briefed their positions7 and filed supplemental charts8 and the fact sheet.9 They have
participated in a telephonic oral argument.10

Facts
A.

Background facts and decision of the Administrative Law Judge (“ALJ”)
Miller, who was 38 years old at the time of the administrative hearing11 has a high

school education12 and is married with two children, one is a minor.13 His past relevant
employment history includes work as a general excavating laborer and carpenter apprentice.14
The ALJ, whose decision became the final decision of the Commissioner, found that
Miller had the following severe impairment: cervical degenerative disc disease with
radiculopathy (20 CFR 404.1520(c)).15

7

ECF # 27 (Commissioner’s brief); ECF # 22 (Miller’s brief) ECF # 28 (Miller’s
reply brief).
8

ECF # 27-1 (Commissioner’s charts); ECF # 22-1 (Miller’s charts).

9

ECF # 21 (Miller’s fact sheet).

10

ECF # 30.

11

ECF # 12, Transcript (“Tr.”) at 39.

12

Id. at 19.

13

Id. at 40.

14

Id. at 18.

15

Id. at 14.
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After concluding that the relevant impairments did not meet or equal a listing, the ALJ
made the following finding regarding Miller’s residual functional capacity (“RFC”):
After careful consideration of the entire record, the undersigned finds that,
through the date last insured, the claimant has the residual functional capacity
to perform medium work as defined in 20 CFR 404.1567(c), except that he
should never climb ladders, ropes, or scaffolds; but he could occasionally
climb ramps and stairs, balance, stoop, kneel, crouch, and crawl.16
Given that residual functional capacity, the ALJ found Miller incapable of performing his
past relevant work as a general excavating laborer and carpenter apprentice.17
Based on an answer to a hypothetical question posed to the vocational expert at the
hearing setting forth the residual functional capacity finding quoted above, the ALJ
determined that a significant number of jobs existed locally and nationally that Miller could
perform.18 The ALJ, therefore, found Miller not under a disability.19
B.

Issues on judicial review
Miller asks for reversal of the Commissioner’s decision on the ground that it does not

have the support of substantial evidence in the administrative record. Specifically, Miller
presents the following issue for judicial review:

16

Id. at 16.

17

Id. at 18.

18

Id. at 19.

19

Id. at 20.
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•

Whether the ALJ’s decision to not call on a medical expert in a case
where onset date must be inferred was supported by substantial
evidence.20

For the reasons that follow, I will conclude that the ALJ’s finding of no disability is
supported by substantial evidence and, therefore, must be affirmed.

Analysis
A.

Substantial evidence standard of review
The Sixth Circuit in Buxton v. Halter reemphasized the standard of review applicable

to decisions of the ALJs in disability cases:
Congress has provided for federal court review of Social Security
administrative decisions. 42 U.S.C. § 405(g). However, the scope of review is
limited under 42 U.S.C. § 405(g): “The findings of the Secretary as to any fact,
if supported by substantial evidence, shall be conclusive....” In other words, on
review of the Commissioner’s decision that claimant is not totally disabled
within the meaning of the Social Security Act, the only issue reviewable by
this court is whether the decision is supported by substantial evidence.
Substantial evidence is “ ‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.’ ”
The findings of the Commissioner are not subject to reversal merely
because there exists in the record substantial evidence to support a different
conclusion. This is so because there is a “zone of choice” within which the
Commissioner can act, without the fear of court interference.21

20

ECF # 22 at 3.

21

Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (citations omitted).
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Viewed in the context of a jury trial, all that is necessary to affirm is that reasonable minds
could reach different conclusions on the evidence. If such is the case, the Commissioner
survives “a directed verdict” and wins.22 The court may not disturb the Commissioner’s
findings, even if the preponderance of the evidence favors the claimant.23
I will review the findings of the ALJ at issue here consistent with that deferential
standard.
B.

Application of standard
Miller contends that the ALJ should have called a medical expert (ME) to determine

if his common variable immune disease (CVID), which the ALJ found was not diagnosed
until 2012,24 or two years after September 30, 2010, his date last insured,25 actually predated
the date last insured but remained undiagnosed.26 As a related issue, Miller argues that
because CVID is a rare diagnosis and often is not discerned in clinical settings, the ALJ
should have called an ME so as to testify as to the symptoms and course of the disease.27

22

LeMaster v. Sec’y of Health & Human Servs., 802 F.2d 839, 840 (6th Cir. 1986);
Tucker v. Comm’r of Soc. Sec., No. 3:06CV403, 2008 WL 399573, at *6 (S.D. Ohio Feb. 12,
2008).
23

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).

24

Tr. at 15.

25

Id. at 14.

26

ECF # 22 at 5-6.

27

Id. at 6-11.
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As both parties recognize, there is a predicate issue here which concerns whether SSR
83-20 applies in the context of the present case. SSR 83-20 - which governs what an ALJ
must consider in determining an onset date for an impairment28 - provides that with “slowly
progressing impairments” a onset date “prior to the date of the first recorded medical
examination” may be “inferred” from the evidence based on an “informed judgment” about
the facts in a particular case.29 To that end, SSR 83-20 states that “[a]t the hearing, the
administrative law judge (ALJ) should call on the services of a medical advisor when onset
must be inferred.”30
I have twice had the recent occasion to examine SSR 83-20. In Velez, I noted that
this ruling “only applies when there has been a finding of disability and it is necessary to
determine when the disability began.”31 Just one month later, in Polacek v. Commissioner
of Social Security,32 I noted, like here, that the claimant and the Commissioner “had
expended significant resources on whether SSR 83-20 is or should be invoked only after

28

Velez v. Comm’r of Soc. Sec., No. 1:15 CV 2659, 2017 WL 661651, at * 6 (N.D.
Ohio February 17, 2017).
29

SSR 83-20.

30

Id. (emphasis added).

31

Velez, 2017 WL 6611651, at * 6 (citing Clendering v. Comm’r of Soc. Sec., 482
Fed. Appx. 93, 95 (6th Cir. 2012)).
32

Polacek v. Comm’r of Soc. Sec., No. 5:16 CV 1504, 2017 WL 961040 (N.D. Ohio
March 13, 2017).
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there has been a finding of disability by the ALJ.”33 I concluded that it was not necessary to
consider SSR 83-20 in any context because the ALJ in that case had already found no clinical
signs of the claimant’s slow progressing muscular dystrophy in the record even prior to the
date last insured.34
Here, the ALJ affirmatively notes in the opinion that although Miller had alleged that
he met Listing 14.07, which addresses immune deficiency disorders (other than HIV
infection,35 “the medical record does not support the claimant required hospitalization or
intravenous treatment three times or more in a twelve month period prior to his date last
insured.”36 The ALJ here pointedly observed that although Miller now states that he is
receiving intravenous treatment every three weeks in his home, this “treatment occurred over
two years after his date last insured.”37
Therefore, much like the situation in Polacek, on the record findings by the ALJ that
directly address the evidence in this case in light of a necessary component of a non-HIV
autoimmune disorder show that if Miller’s CVID did exist prior to the date last insured, it
was not at a level of severity that would constitute a severe impairment. Accordingly, also

33

Id. at *2.

34

Id.

35

Galloway v. Comm’r of Soc. Sec., No. 1:11 CV 556, 2013 WL 1281629, at * * 4-5
(S.D. Ohio March 27, 2013).
36

Tr. at 15.

37

Id.
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like Polacek, this finding by the current ALJ is “entirely consistent with a ‘slowly
progressive disease’ in that a disease may well progress over a few months to where the
impairment reaches a level of severity such that the Listing is met - but only after the DLI,
in which case there is no remaining issue of disability to be determined.”38

Conclusion
Therefore, for the reasons stated, I find no error in the failure of the ALJ to call a
medical expert, and further find that substantial evidence supports the decision of the
Commissioner to deny benefits to Robert A. Miller. That decision is hereby affirmed.
IT IS SO ORDERED.

Dated: September 27, 2017

38

s/ William H. Baughman, Jr.
United States Magistrate Judge

Polacek, 2017 WL 961040, at *2.
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