Smith v. Commissioner of Social Security

Filing 21

REPORT AND RECOMMENDATIONS re 4 Complaint: The Magistrate Judge RECOMMENDS that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED. Objections to R&R within fourteen (14) days of the date of this Report. Signed by Magistrate Judge Norah McCann King on 1/17/2014. (er1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JOSEPH DAVID SMITH,
Plaintiff,
vs.

Civil Action 2:13-cv-430
Judge Graham
Magistrate Judge King

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
REPORT AND RECOMMENDATION
I. Background
This is an action instituted under the provisions of 42 U.S.C. § 405(g)
for review of a final decision of the Commissioner of Social Security
denying plaintiff’s application for a period of disability and disability
insurance benefits.

This matter is now before the Court for consideration

of Plaintiff, Joseph D. Smith’s Statement of Errors (“Statement of
Errors”), Doc. No. 13, and the Commissioner’s Opposition to Plaintiff’s
Statement of Errors, Doc. No. 20.

Plaintiff has not filed a reply.

Plaintiff Joseph David Smith filed his application for benefits on
May 7, 2010, alleging that he has been disabled since February 5, 2008.
PAGEID

237.

The

application

was

denied

initially

and

upon

reconsideration, and plaintiff requested a de novo hearing before an
administrative law judge.
An administrative hearing was held on February 21, 2012, at which
plaintiff, represented by counsel, appeared and testified, as did Betty
Hale, who testified as a vocational expert.

1

PAGEID 103.

In a decision

dated February 24, 2012, the administrative law judge concluded that
plaintiff was not disabled from February 5, 2008, through the date of the
administrative decision.

PAGEID 83-97.

That decision became the final

decision of the Commissioner of Social Security when the Appeals Council
declined review on March 20, 2013.

PAGEID 72-74.

Plaintiff was 61 years of age on the date of the administrative law
judge’s decision.

See PAGEID 97, 237.

He has a limited education, is able

to communicate in English, and has past relevant work as an off-bearer
veneer worker, radial arm saw operator/feeder, and forklift operator.
PAGEID 95-96.

Plaintiff was last insured for disability insurance

benefits on June 30, 2012.

PAGEID 85.

He has not engaged in substantial

gainful activity since February 5, 2008, his alleged date of onset of
disability.

Id.

II. Administrative Decision
The

administrative

law

judge

found

that

plaintiff’s

severe

impairments consist of degenerative disc disease, coronary artery disease,
and hearing loss.

PAGEID 86.

The administrative law judge also found that

plaintiff’s impairments neither meet nor equal a listed impairment and
leave plaintiff with the residual functional capacity (“RFC”) to
perform light work as defined in 20 CFR 404.1567(c) except the
claimant can perform frequent crouching, stooping, climbing
stairs, and climbing ramps, can occasionally balance, is
limited to a supervised, low stress environment, and can have
no exposure to hazards such as dangerous machinery, unprotected
heights, scaffolding, ropes, or ladders.
PAGEID 87-89.

The administrative law judge relied on the testimony of the

vocational expert to find that plaintiff was able to perform his past

2

relevant

work

limitations.

as

an

off-bearer

PAGEID 95.

“as

he

performed

it,”

despite

his

The administrative law judge also found that

plaintiff was capable of performing a significant number of other jobs in
the national economy, including such jobs as hand packer and material
handler.

PAGEID 96.

Accordingly, the administrative law judge concluded

that plaintiff was not disabled within the meaning of the Social Security
Act from February 5, 2008, through the date of the administrative decision.
PAGEID 97.
III. Discussion1
Pursuant

to

42

U.S.C.

§

405(g),

judicial

review

of

the

Commissioner’s decision is limited to determining whether the findings of
the administrative law judge are supported by substantial evidence and
employed the proper legal standards.

Richardson v. Perales, 402 U.S. 389

(1971); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005).
Substantial evidence is more than a scintilla of evidence but less than
a preponderance; it is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.

See Buxton v. Haler, 246 F.3d

762, 772 (6th Cir. 2001); Kirk v. Sec’y of Health & Human Servs., 667 F.2d
524, 535 (6th Cir. 1981).

This Court does not try the case de novo, nor

does it resolve conflicts in the evidence or questions of credibility.

See

Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir.
1989); Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).

1

Plaintiff’s Statement of Errors challenges the administrative law judge’s
failure to include in the RFC determination a limitation related to plaintiff’s
use of a cane to walk, the administrative law judge’s finding that plaintiff is
able to perform his past relevant work, and in failing to find plaintiff disabled
pursuant to Grid Rule 202.06. Statement of Errors, pp. 4-6. The Court will
therefore limit its discussion to these issues.

3

In determining the existence of substantial evidence, this Court
must examine the administrative record as a whole.

Kirk, 667 F.2d at 536.

If the Commissioner's decision is supported by substantial evidence, it
must be affirmed even if this Court would decide the matter differently,
see Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983), and even
if substantial evidence also supports the opposite conclusion.

Longworth,

402 F.3d at 595.
Plaintiff argues, first, that the administrative law judge failed to
properly incorporate in her RFC assessment a limitation relating to
plaintiff’s use of a cane.

Statement of Errors, pp. 5-6.

An RFC

determination is an indication of an individual's work-related abilities
despite his limitations.

See 20 C.F.R. § 404.1545(a).

The RFC is an

administrative finding of fact reserved to the Commissioner.

20 C.F.R.

§§ 404.1527(d)(2), (3); Edwards v. Comm'r of Soc. Sec., 97 F. App'x 567,
569 (6th Cir. 2004).

The RFC finding represents the most, not the least,

that a claimant can do despite his impairments.

20 C.F.R. §§ 404.1545(a);

Griffeth v. Comm’r of Soc. Sec., 217 F. App'x 425, 429 (6th Cir. 2007).
In assessing a claimant's RFC, an administrative law judge must consider
all relevant record evidence, including medical source opinions, as to the
severity of a claimant's impairments.
404.1545(a).

See 20 C.F.R. §§ 404.1527(d),

Furthermore, courts have stressed the importance of medical

opinions to support a claimant's RFC, and have cautioned administrative
law judges against relying on their own expertise in drawing RFC conclusions
from raw medical data.

See Isaacs v. Astrue, No. 1:08-CV-828, 2009 WL

4

3672060, at *10 (S.D. Ohio Nov. 4, 2009) (quoting Deskin v. Comm'r Soc.
Sec., 605 F.Supp.2d 908, 912 (N.D. Ohio 2008)).
In the case presently before the Court, the administrative law judge
found that plaintiff had the RFC for light work, except that he “can perform
frequent crouching, stooping, climbing stairs, and climbing ramps, can
occasionally balance, is limited to a supervised, low stress environment,
and can have no exposure to hazards such as dangerous machinery, unprotected
heights, scaffolding, ropes, or ladders.”

PAGEID 89.

In making this RFC

assessment, the administrative law judge gave significant weight to the
opinion of Robert Thompson, M.D., a consultative examiner,2 and assigned
“little weight” to the opinions of state agency physicians Diane Manos,
M.D., and Willa Caldwell, M.D.

3

PAGEID 93-94.

Plaintiff has not

challenged the administrative law judge’s evaluation of the medical
opinions and he has not pointed to any opinion of greater limitations than
those found by the administrative law judge.

Moreover, plaintiff has not

referred to any medical evidence in the record that he required a cane to
walk.
a cane.

Plaintiff did testify at the administrative hearing that he used
See PAGEID 116.

plaintiff’s

statements

However, the administrative law judge found that
were

“not

credible

inconsistent with the [RFC] assessment.”

to

the

PAGEID 91.

extent

they

are

Notably, plaintiff

has not challenged the administrative law judge’s finding in this regard.
2

As a one-time consultative examiner, Dr. Thompson is properly classified as a
nontreating source. See 20 C.F.R. § 404. 1502 (“Nontreating source means a
physician, psychologist, or other acceptable medical source who has examined [the
claimant] but does not have, or did not have, an ongoing treatment relationship
with [the claimant].”).
3
Drs. Manos and Caldwell are classified as nonexamining sources. See 20 C.F.R.
§ 404.1502 (A nonexamining source is “a physician, psychologist, or other
acceptable medical source who has not examined [the claimant] but provides a
medical or other opinion in [the claimant’s] case.”).

5

Accordingly, the administrative law judge did not err in failing to include
a limitation based on a medical need for a cane.
Plaintiff next argues that the administrative law judge erred in
finding that plaintiff is capable of performing his past relevant work as
an off-bearer veneer worker.

Statement of Errors, pp. 4-5.

Specifically,

plaintiff argues that, because the job of off-bearer is properly classified
as medium work, it was error for the administrative law judge to find that
plaintiff, who had an RFC for only light work, was capable of performing
that work.

Id.

Plaintiff’s argument is not well taken.

The vocational expert testified at the administrative hearing that
plaintiff has past relevant work as an order puller, forklift driver,
“offbearer for the veneer press,” and “work operating the radial saw.”
PAGEID 128.

The vocational expert testified that, according to the

Dictionary of Occupational Titles (“DOT”), the order puller, forklift
driver, and off-bearer veneer work were classified at the medium exertional
level and that the radial saw operating was classified at the light
exertional level.

Id.

However, the vocational expert also testified

that, based on plaintiff’s testimony, the order puller and off-bearer
veneer press work were performed at the light exertional level.

Id.

The

vocational expert was asked to assume a claimant with plaintiff’s
vocational

profile

and

determined

by

administrative

the

the

residual
law

functional
judge.

capacity
PAGEID

eventually

130-31.

The

vocational expert responded that such an individual could not perform
plaintiff’s past relevant work, as that work is defined in the DOT, but
that such an individual could perform plaintiff’s past relevant “order

6

pulling work and the press operator in the veneer factor [sic] offbearer
based on [plaintiff’s] testimony and the way it’s listed.”

Id.

The

vocational expert also testified that such an individual would be able to
perform such jobs as small products assembler and inspecter, which are both
classified at the light exertional level.

PAGEID 131.

The administrative law judge relied on the testimony of the vocational
expert and expressly found that plaintiff is able to perform his past
relevant work as an off-bearer “as he performed it.”

PAGEID 95.

Plaintiff’s arguments to the contrary notwithstanding, the administrative
law judge did not find that plaintiff was able to perform work at the medium
exertional level.

Instead, the vocational expert testified, and the

administrative law judge found, that plaintiff performed his past relevant
off-bearer work at the light exertional level.

See PAGEID 95, 128.

Accordingly, the administrative law judge’s determination that plaintiff
could perform his past relevant off-bearer work “as he performed it,” i.e.,
at

the

light

exertional

level,

was

not

inconsistent

with

the

RFC

determination that plaintiff is limited to a reduced range of light work.
Finally, plaintiff argues that the administrative law judge erred in
failing

to

find

plaintiff

disabled

pursuant

to

Medical-Vocational

guidelines (otherwise known as the “Grid”) Rule 202.06, 20 C.F.R. Pt. 404,
Subpt. P, App. 2.

Statement of Errors, p. 5.

Plaintiff’s reliance on the

Grid Rules is misplaced; the Grid Rules apply only if a claimant is “not
doing substantial gainful activity and is prevented by a severe medically
determinable impairment from doing vocationally relevant past work.”
C.F.R. § 404.1569.

20

As discussed supra, the administrative law judge found

7

that plaintiff was capable of performing his past relevant work as an
off-bearer.

Accordingly, the Grid Rules were inapplicable to plaintiff’s

claim.
In short, the Court concludes that the administrative law judge
applied all proper standards and that her decision is supported by
substantial evidence.

It is therefore RECOMMENDED that the decision of

the Commissioner be AFFIRMED and that this action be DISMISSED.
If any party seeks review by the District Judge of this Report and
Recommendation, that party may, within fourteen (14) days, file and serve
on all parties objections to the Report and Recommendation, specifically
designating this Report and Recommendation, and the part thereof in
question, as well as the basis for objection thereto.
636(b)(1); Fed. R. Civ. P. 72(b).

28 U.S.C. §

Response to objections must be filed

within fourteen (14) days after being served with a copy thereof.

Fed.

R. Civ. P. 72(b).
The parties are specifically advised that failure to object to the
Report and Recommendation will result in a waiver of the right to de novo
review by the District Judge and of the right to appeal the decision of
the District Court adopting the Report and Recommendation.

See Thomas v.

Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of Teachers, Local 231
etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).

January 17, 2014

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

8