Jackson v. Commissioner of Social Security
Filing
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Memorandum Opinion and Order: The decision of the Administrative Law Judge is affirmed; this case is dismissed in its entirety with prejudice (Related document 1 ). Signed by Magistrate Judge George J. Limbert on 2/19/2019. (S,AA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
KIMBERLE KARLA JACKSON,
)
)
Plaintiff,
)
)
v.
)
)
NANCY A. BERRYHILL1,
)
ACTING COMMISSIONER OF SOCIAL )
SECURITY ADMINISTRATION,
)
)
Defendant.
)
CASE NO. 1:18CV421
MAGISTRATE JUDGE
GEORGE J. LIMBERT
MEMORANDUM OPINION
AND ORDER
Plaintiff Kimberle Karla Jackson (“Plaintiff”) requests judicial review of the decision of
the Commissioner of Social Security Administration (“Defendant”) denying her applications for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). ECF Dkt. #1.
In her brief on the merits, filed on May 25, 2018, Plaintiff asserts that the administrative law
judge (“ALJ”) issued a decision that is not supported by substantial evidence. ECF Dkt. #14.
Defendant filed a response brief on June 22, 2018. ECF Dkt. #15. Plaintiff filed a reply brief on
July 6, 2018. ECF Dkt. #16.
For the following reasons, the Court AFFIRMS the decision of the ALJ and dismisses the
instant case in its entirety with prejudice.
I.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff filed applications for DIB and SSI in September 2014 alleging a disability onset
date of August 12, 2010. ECF Dkt. #11 (“Tr.”) at 240.2 The applications were denied initially
and upon reconsideration. Id. at 156, 175. Plaintiff then requested a hearing before an ALJ,
1
On January 23, 2017, Nancy A. Berryhill became the acting Commissioner of Social Security,
replacing Carolyn W. Colvin.
2
All citations to the Transcript refer to the page numbers assigned when the Transcript was filed in
the CM/ECF system rather than the page numbers assigned when the Transcript was compiled. This allows
the Court and the parties to easily reference the Transcript as the page numbers of the .PDF file containing
the Transcript correspond to the page numbers assigned when the Transcript was filed in the CM/ECF system.
which was held on March 1, 2017. Id. at 41. At the hearing, Plaintiff amended her alleged onset
date to June 4, 2013. Id. at 45. On May 3, 2017, the ALJ issued a decision concluding that
Plaintiff was not disabled. Id. at 19. Subsequently, the Appeals Council denied Plaintiff’s
request for review. Id. at 1. Accordingly, the decision issued by the ALJ on May 3, 2017, stands
as the final decision.
The instant suit was filed by Plaintiff on February 21, 2018. ECF Dkt. #1. Plaintiff filed
a brief on the merits on May 25, 2018. ECF Dkt. #14. Defendant filed a response brief on June
22, 2018. ECF Dkt. #15. Plaintiff filed a reply brief on July 6, 2018. ECF Dkt. #16.
II.
RELEVANT PORTIONS OF THE ALJ’S DECISION
On May 3, 2017, the ALJ issued a decision finding that Plaintiff was not disabled. Tr. at
19. The ALJ stated that Plaintiff met the insured status requirements of the Social Security Act
through December 31, 2016, and that she had not engaged in substantial gainful activity since
June 4, 2013, the alleged onset date. Id. at 24. Continuing, the ALJ determined that Plaintiff had
the following severe impairments: degenerative disc disease of the cervical and thoracic spine;
fibromyalgia; diabetes mellitus; carpal tunnel syndrome of the left upper extremity; arthritis of
the left knee; bipolar II disorder; generalized anxiety disorder; and social anxiety disorder. Id.
The ALJ then indicated that Plaintiff did not have an impairment or combination of impairments
that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. Id. at 25.
After consideration of the record, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b)
with the following additional limitations: occasionally push or pull; never climb ladders, ropes,
or scaffolds; occasionally climb ramps and stairs; occasionally balance, stoop, kneel, crouch, and
crawl; frequently reach overhead and forward in all directions; frequently handle and finger with
the left upper extremity; needs a sit/stand option provided that she will not be off-task more than
8% of the workday; must be able to prop her feet up during breaks; occasional exposure to
extreme cold and wetness; occasional exposure to hazards including moving machinery and
unprotected heights; limited to goal-based production work measured by end result, not pace
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work; and limited to simple, routine, and repetitive tasks with only occasional changes in the
work setting. Tr. at 27.
The ALJ then stated that Plaintiff was unable to perform any past relevant work, was a
younger individual on the alleged onset date, had a high school education, and was able to
communicate in English. Tr. at 32. Next, the ALJ indicated that the transferability of job skills
was not material to the determination of disability because the Medical-Vocational Rules
supported a finding that Plaintiff was not disabled. Id. Considering Plaintiff’s age, education,
work experience, and RFC, the ALJ determined that jobs existed in significant numbers in that
national economy that Plaintiff could perform. Id. For these reasons, the ALJ found that
Plaintiff had not been under a disability, as defined in the Social Security Act, from June 4,
2013, through the date of the decision. Id. at 33.
III.
STEPS TO EVALUATE ENTITLEMENT TO SOCIAL SECURITY BENEFITS
An ALJ must proceed through the required sequential steps for evaluating entitlement to
social security benefits. These steps are:
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) and 416.920(b) (1992));
2.
An individual who does not have a “severe impairment” will not be found
to be “disabled” (20 C.F.R. §§ 404.1520(c) and 416.920(c) (1992));
3.
If an individual is not working and is suffering from a severe impairment
which meets the duration requirement, see 20 C.F.R. § 404.1509 and
416.909 (1992), and which meets or is equivalent to a listed impairment in
20 C.F.R. Pt. 404, Subpt. P, App. 1, a finding of disabled will be made
without consideration of vocational factors (20 C.F.R. §§ 404.1520(d) and
416.920(d) (1992));
4.
If an individual is capable of performing the kind of work he or she has
done in the past, a finding of “not disabled” must be made (20 C.F.R. §§
404.1520(e) and 416.920(e) (1992));
5.
If an individual’s impairment is so severe as to preclude the performance
of the kind of work he or she has done in the past, 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) and 416.920(f) (1992)).
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Hogg v. Sullivan, 987 F.2d 328, 332 (6th Cir. 1992). The claimant has the burden to go forward
with the evidence in the first four steps and the Commissioner has the burden in the fifth step.
Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990).
IV.
STANDARD OF REVIEW
Under the Social Security Act, the ALJ weighs the evidence, resolves any conflicts, and
makes a determination of disability. This Court’s review of such a determination is limited in
scope by § 205 of the Act, which states that the “findings of the Commissioner of Social Security
as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. §405(g).
Therefore, this Court’s scope of review is limited to determining whether substantial evidence
supports the findings of the Commissioner and whether the Commissioner applied the correct
legal standards. Abbott v. Sullivan, 905 F.2d 918, 922 (6th Cir. 1990).
The substantial-evidence standard requires the Court to affirm the Commissioner’s
findings if they are supported by “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Cole v. Astrue, 661 F.3d 931, 937, citing Richardson v.
Perales, 402 U.S. 389, 401 (1971) (internal citation omitted). Substantial evidence is defined as
“more than a scintilla of evidence but less than a preponderance.” Rogers v. Comm’r of Soc.
Sec., 486 F.3d 234 (6th Cir. 2007). Accordingly, when substantial evidence supports the ALJ’s
denial of benefits, that finding must be affirmed, even if a preponderance of the evidence exists
in the record upon which the ALJ could have found plaintiff disabled. The substantial evidence
standard creates a “‘zone of choice’ within which [an ALJ] can act without the fear of court
interference.” Buxton v. Halter, 246 F.3d 762, 773 (6th Cir.2001). However, an ALJ’s failure to
follow agency rules and regulations “denotes a lack of substantial evidence, even where the
conclusion of the ALJ may be justified based upon the record.” Cole, supra, citing Blakely v.
Comm’r of Soc. Sec., 581 F.3d 399, 407 (6th Cir.2009) (internal citations omitted).
V.
LAW AND ANALYSIS
Plaintiff asserts that the ALJ’s RFC finding is not supported by substantial evidence
because the only medical opinions regarding her physical limitations predated four years of
significant medical developments. ECF Dkt. #14 at 13-18. Specifically, Plaintiff states that the
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only professional medical assessments of her physical impairments came from non-examining
physicians. Id. at 13. Plaintiff avers that the only medical opinions regarding her physical
capabilities were issued in June 2013 despite four years of subsequent medical development. Id.
Continuing, Plaintiff indicates that the state agency medical consultants determined that they
were required to adopt the RFC finding of the prior ALJ pursuant to Drummond despite
significant medical developments. Id. at 14 (internal citations omitted). Plaintiff asserts that the
record shows medical developments that are new and material and thus res judicata, as imposed
by Drummond, is not applicable. Id. Regarding the new and material evidence, Plaintiff notes:
EMGs and MRIs showing issues in her wrist and spine; a left knee fracture; worsening carpal
tunnel syndrome; and the establishment of treatment with a pain specialist due to fibromyalgia.
Id. at 14-15.
Plaintiff then states that the ALJ properly recognized the new and material evidence and
issued a different RFC finding than the prior ALJ. ECF Dkt. #14 at 15. Continuing, Plaintiff
claims that the ALJ recognized that the opinion evidence was stale when it was assigned only
“some weight.” Id. Plaintiff argues that since there is no medical opinion providing an updated
assessment of Plaintiff’s limitations, “the RFC cannot possibly be supported by substantial
evidence.” Id. After recognizing that the RFC finding is the responsibility of the ALJ, Plaintiff
states:
[S]ignificant case law in this district confirm[s] the general principle that the ALJ must
generally obtain a medical expert opinion when formulating the RFC unless the medical
evidence shows relatively little physical impairment such that the ALJ can permissibly
render a commonsense judgment about functional capacity.
Id. at 16. Plaintiff then cites a case from the Eastern District of Michigan. Id. Additionally,
Plaintiff claims that a substantial number of other courts in the Sixth Circuit have “expressed the
notion that an ALJ’s own interpretation of the evidence is not substantial evidence that cannot
support an RFC determination.” ECF Dkt. #14 at 16 (internal citations omitted). Plaintiff
asserts that an ALJ’s interpretation of medical evidence and its arbitrary conversion into specific
functional limitations is not reasonable and should not be considered substantial evidence that
can support a RFC finding. Id. at 17-18.
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Defendant contends that substantial evidence supports the ALJ’s RFC finding and that
the ALJ properly considered the subjective symptoms and medical opinion evidence when
evaluating Plaintiff’s symptoms and determining her RFC. ECF Dkt. #15 at 10. Specifically,
Defendant asserts that the ALJ’s RFC finding was substantially similar to the findings of the
state agency medical consultants and the prior ALJ, and that the ALJ explained any deviation.
Id. According to Defendant, Plaintiff did not meet her burden of providing medical opinion
evidence that supported her assertion that she was more limited than the ALJ’s RFC finding. Id.
Defendant states that the ALJ noted: discrepancies between Plaintiff’s statements and the other
evidence of record; that Plaintiff’s impairments improved with treatment; a lack of mental health
treatment; activities of daily living that were inconsistent with disabling impairments; and
medical opinion evidence that was inconsistent with disabling impairments. Id. at 11-13.
Regarding Plaintiff’s activities of daily living, Defendant indicates that the ALJ discussed the
following activities performed by Plaintiff: chores such as laundry and grocery shopping;
driving; using a computer and smart phone; reading newspapers, magazines, and books for short
periods of time; attending church; occasionally visiting with her mother and brother;
membership at a health club; and swimming and walking. ECF Dkt. #15 at 13. Defendant also
states that the ALJ noted that Plaintiff had no care for her mental health symptoms and no
records showed that Plaintiff was in counseling or was hospitalized. Id.
Continuing, Defendant indicates that the ALJ considered the medical opinion evidence
and gave “some weight” to the opinions of the state agency medical consultants submitted in
2015. ECF Dkt. #15 at 14. Defendant states that the ALJ gave “significant weight” to the
findings of the state agency psychological consultants who adopted the mental RFC findings of
the prior ALJ. Id. at 15. Additionally, Defendant notes that the ALJ discussed Plaintiff’s
subjective symptoms and explained why those statements were not entirely credible. Id.
Further, Defendant states that, contrary to Plaintiff’s assertion, the ALJ recognized that the state
agency physicians that submitted opinions in 2015 considered the new evidence and did not find
that the evidence showed any new functional limitations. Id. Defendant contends that this
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finding is consistent with the fact that none of Plaintiff’s treating physicians from the relevant
period opined that Plaintiff had any work-related limitations. Id.
According to Defendant, the ALJ relied upon the medical opinion evidence when
determining Plaintiff’s RFC and did not rely on outdated medical opinions. ECF Dkt. #15 at 18.
Defendant states that the ALJ relied upon the opinions submitted in 2015 that considered the
evidence from the current relevant time period. Id. Regarding the lack of new opinion evidence,
Defendant asserts that Plaintiff fails to address the fact that it is her burden to prove the extent of
her limitations and she provided no evidence substantiating the claim that she was more limited
than stated in the RFC finding. Id. Insofar as Plaintiff claims that the ALJ improperly
interpreted raw medical data, Defendant contends that the ALJ was not required to base the RFC
finding entirely upon the opinion evidence. Id. at 19 (citing Downs v. Comm’r of Soc. Sec., 634
F. App’x 551, 553 (6th Cir. 2014); Griffith v. Comm’s of Soc. Sec., 582 F. App’x 555, 562 (6th
Cir. 2014); 20 C.F.R. §§ 404.1545, 404.1546, 416.945, 416.946). Finally, Defendant asserts that
the ALJ was not required to obtain additional evidence, especially considering that Plaintiff
provided no opinion evidence to dispute the ALJ’s RFC finding or the opinions of the state
agency physicians. Id. at 20.
Plaintiff’s argument is without merit and the ALJ’s decision is supported by substantial
evidence. After a thorough discussion of the medical evidence presented in this case, the ALJ
explained that Plaintiff’s statements regarding the severity of her symptoms were not fully
credible. Tr. at 27-30. The ALJ supported this conclusion with numerous citations to the
medical record and Plaintiff’s activities of daily living, as discussed above. Id. at 30-31.
Continuing, the ALJ discussed the opinion evidence submitted by the state agency medical
consultants. The ALJ explained why “some weight” was assigned to the opinions and
incorporated portions of the opinions in the RFC finding. Id. at 27, 31. Additionally, the ALJ
addressed the opinions of the state agency psychological consultants and incorporated their
assessments in the RFC finding. Id. The ALJ then explained that “some weight” was assigned
to the opinion of the consultative psychological examiner and noted that Plaintiff did not
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complain of mental impairments at the hearing and had “no real” mention of treatment for
mental impairments. Id. at 31.
In her brief on the merits, Plaintiff first asserts that the state agency medical consultants
improperly adopted the findings of the prior ALJ pursuant to Drummond. ECF Dkt. #14 at1315. However, the ALJ assigned only “some weight” to these opinions and then discussed the
new medical evidence when formulating the RFC finding. Further, any contention that the
opinions of the state agency medical consultants were stale is without merit as the consultants
reviewed the new evidence and determined that it was not sufficient to warrant a finding that was
different than the finding of the prior ALJ.
Plaintiff also asserts that the ALJ improperly evaluated the new medical evidence without
new opinion evidence. It is Plaintiff’s burden to establish that she is disabled. Moon, 923 F.2d
at 1181. Here, Plaintiff fails to provide any new opinion evidence and then faults the ALJ for
not seeking out such evidence when issuing the decision. Plaintiff cites no rule or regulation
requiring that the ALJ create and/or obtain new opinion evidence for her benefit.3 Although
Plaintiff faults the ALJ for considering the new medical evidence without an opinion, it was
Plaintiff’s burden to provide such an opinion. Plaintiff cannot file applications for DIB and SSI
that are not supported by the opinion evidence she desires and then fault the ALJ for the lack of
such evidence. Accordingly, the ALJ’s decision is supported by substantial evidence and
Plaintiff’s case is dismissed in its entirety.
VI.
CONCLUSION
For the foregoing reasons, the Court AFFIRMS the decision of the ALJ and dismisses the
instant case in its entirety with prejudice.
Date: February 19, 2019
/s/George J. Limbert
GEORGE J. LIMBERT
UNITED STATES MAGISTRATE JUDGE
3
Contrary to Plaintiff’s assertion, Social Security Ruling 96-6p leaves the determination of whether
new opinion evidence must be obtained to “the opinion” of the ALJ.
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