Dugan v. Commissioner of Social Security

Filing 14

DECISION AND ENTRY: (1) AFFIRMING THE ALJS NON-DISABILITY FINDING AS SUPPORTED BY SUBSTANTIAL EVIDENCE; AND (2) TERMINATING THIS CASE ON THE COURTS DOCKET. Signed by Magistrate Judge Michael J. Newman on 9/29/17. (pb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DOROTHY M. DUGAN,
Plaintiff,

Case No. 3:16-cv-108

vs.
COMMISSIONER OF SOCIAL SECURITY,

Magistrate Judge Michael J. Newman
(Consent Case)

Defendant.
______________________________________________________________________________
DECISION AND ENTRY: (1) AFFIRMING THE ALJ’S NON-DISABILITY FINDING
AS SUPPORTED BY SUBSTANTIAL EVIDENCE; AND (2) TERMINATING THIS
CASE ON THE COURT’S DOCKET
______________________________________________________________________________
This Social Security disability benefits appeal is before the undersigned for disposition
based upon the parties’ consent. Doc. 11. At issue is whether the Administrative Law Judge
(“ALJ”) erred in finding Plaintiff not “disabled” and therefore unentitled to Disability Insurance
Benefits (“DIB”) and/or Supplemental Security Income (“SSI”).1 This case is before the Court
on Plaintiff’s Statement of Errors (doc. 11), the Commissioner’s memorandum in opposition
(doc. 12), Plaintiff’s reply (doc. 13), the administrative record,2 and the record as a whole.
I.
A.

Procedural History

Plaintiff originally filed for DIB and SSI in January 2001 alleging disability as of
February 25, 1999. Tr. 48 (Vols. II). Plaintiff alleged disability as a result of a number of
“The Commissioner’s regulations governing the evaluation of disability for DIB and SSI are
identical . . . and are found at 20 C.F.R. § 404.1520, and 20 C.F.R. § 416.920 respectively.” Colvin v.
Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). Citations in this Decision and Entry to DIB regulations are
made with full knowledge of the corresponding SSI regulations, and vice versa.
2
Hereafter, citations to the manually-filed administrative record will refer only to the Transcript
(Tr.) page number. The transcript consists of three volumes. Volumes I and II are Bates-stamped with
consecutive pages 1-1953. Volume III, however, begins with Bates-stamped pages 1-811. Thus, record
citations herein will indicate the Volume in which the specific document(s) cited appear.
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impairments including, inter alia, degenerative disc disease of the lumbar spine, degenerative
disc disease of the cervical spine, and carpal tunnel syndrome. Tr. 48, 61 (Vols. I).
After an initial denial of her application, Plaintiff received a hearing before ALJ James
I.K. Knapp who issued a written decision on May 10, 2002 finding Plaintiff not disabled. Tr. 4863 (Vol. I). Specifically, ALJ Knapp found at Step Four that, based upon Plaintiff’s residual
functional capacity (“RFC”) to perform a reduced range of light work,3 she could perform her
past-relevant work as an electronics assembler.4 Id. Thereafter, the Appeals Council denied
Plaintiff’s request for review. Tr. 66-68 (Vol. I). Plaintiff did not appeal ALJ Knapp’s decision
in federal court, thus making ALJ Knapp’s non-disability finding the final decision of the
Commissioner with regard to Plaintiff’s initial DIB and SSI application.
In September 2002, Plaintiff filed new applications for DIB and SSI, again alleging
disability as of February 25, 1999. Tr. 19 (Vol I). However, because of ALJ Knapp’s prior final
non-disability decision, May 11, 2002 -- i.e., the date of ALJ Knapp’s decision -- became the
effective onset date for Plaintiff’s new application. Tr. 27 (Vol. III). After an initial denial of
Plaintiff’s new applications, she received a hearing before ALJ Daniel R. Shell on February 11,
2005. Tr. 35 (Vol. I). ALJ Shell issued a written decision on November 8, 2005 finding Plaintiff
not disabled. Tr. 19-35 (Vol. I). Specifically, ALJ Shell found at Step Five that, based upon

The Social Security Administration (“SSA”) classifies jobs as sedentary, light, medium, heavy,
and very heavy depending on the physical exertion requirements. Light work “involves lifting no more
than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds” and
“requires a good deal of walking or standing, or . . . sitting most of the time with some pushing and
pulling of arm or leg controls.” Id. § 404.1567(b). An individual who can perform light work is
presumed also able to perform sedentary work. Id. Sedentary work “involves lifting no more than 10
pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools.
Although a sedentary job is defined as one which involves sitting, a certain amount of walking and
standing is often necessary in carrying out job duties.” Id. § 404.1567(a).
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ALJ Knapp specifically found Plaintiff capable of lifting more than five pounds frequently or
ten pounds occasionally. Tr. 62. In his decision, ALJ Knapp acknowledged that the lifting limitations set
forth in his RFC finding are at “the level normally associated with sedentary work . . . [the] RFC must be
considered to be one for light work because it permits standing for most of the work day, something that
is precluded by the definition of sedentary work.” Tr. 58.
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Plaintiff’s RFC to perform a reduced range of sedentary work, a significant number of jobs
existed that Plaintiff could perform. Tr. 34 (Vol. I).
The Appeals Council denied Plaintiff’s request for review of ALJ Shell’s November 2005
decision. On appeal to this Court, Judge Rice reversed ALJ Shell’s non-disability finding and
remanded the case to the Commissioner for additional administrative proceedings. Dugan v.
Astrue, No. 3:07-CV-159, 2008 WL 783382, at *1 (S.D. Ohio Mar. 20, 2008); see also Dugan v.
Astrue, No. 3:07-CV-159, 2008 WL 755274, at *2 (S.D. Ohio Feb. 28, 2008).
On remand, Plaintiff received a second hearing before ALJ Shell on November 12, 2008.
Tr. 1103-43 (Vol. II). ALJ Shell issued a second written decision on December 19, 2008, again
finding Plaintiff not disabled. Tr. 814-35 (Vol. I). In this second decision, ALJ Shell found,
contrary to his first decision, that Plaintiff was capable of performing light work and further
found at Step Five that, based upon such an RFC, “there are jobs that exist in significant numbers
in the national economy that [Plaintiff] can perform[.]”

Id.

The Appeals Council denied

Plaintiff’s request for review of ALJ Shell’s second decision. Tr. 808-10 (Vol. I). On appeal to
this Court, Judge Rose remanded the matter to the Commissioner for additional administrative
proceedings. Dugan v. Astrue, No. 3:09-CV-199, 2010 WL 3365701, at *1-2 (S.D. Ohio Aug.
23, 2010); see also Dugan v. Astrue, No. 3:09CV0199, 2010 WL 3365740, at *1-16 (S.D. Ohio
July 23, 2010).
During this second remand, Plaintiff received a hearing before ALJ Amelia G. Lombardo
on June 14, 2011. Tr. 1280 (Vol. II). ALJ Lombardo issued a written decision on October 13,
2011 finding Plaintiff disabled as of July 1, 2009, but not disabled before that date. Tr. 113-38
(Vol. I). With regard to Plaintiff’s non-disability status before July 1, 2009, ALJ Lombardo -like ALJ Shell in his second decision -- found at Step Five that Plaintiff was capable of a reduced
range of light work and a significant number of jobs existed in the national economy that

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Plaintiff could perform. Id. Thereafter, the Appeals Council assumed jurisdiction and remanded
the case back to ALJ Lombardo on January 9, 2013. Tr. 1284-86 (Vol. II).
On this third remand, Plaintiff received another hearing before ALJ Lombardo on
January 2, 2014. Tr. 1935 (Vol. II). ALJ Lombardo issued her second written decision on April
25, 2014, finding Plaintiff not disabled. Tr. 27-58 (Vol. III). Specifically, ALJ Lombardo then
found at Step Five that, based upon Plaintiff’s RFC to perform light work, “there are jobs that
exist in significant numbers in the national economy that [Plaintiff] can perform[.]” Id.
The Appeals Council found Plaintiff’s exceptions to ALJ’s Lombardo decision untimely,
making ALJ Lombardo’s non-disability finding the final administrative decision of the
Commissioner. Tr. 1144 (Vol. II). See Casey v. Sec’y of Health & Human Servs., 987 F.2d
1230, 1233 (6th Cir. 1993). The Appeals Council granted Plaintiff’s request for an extension of
time to file a civil action, which is now presently before the Court on her timely appeal. Id.;
Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 435 (6th Cir. 2007). The Court now reviews just the
final administrative decision by ALJ Lombardo (hereinafter “ALJ”).5
B.

Evidence of Record

The voluminous evidence of record is adequately summarized in ALJ Lombardo’s
extensive decision (Tr. 1169-1200), Plaintiff’s Statement of Errors (doc. 11) and the
Commissioner’s memorandum in opposition (doc. 12). The undersigned incorporates all of the
foregoing and sets forth the facts relevant to this appeal herein.

Although it has affirmed ALJ Lombardo’s non-disability finding, see infra, the Court is troubled
by the significant period of time that has elapsed in this case since Plaintiff first filed for these Social
Security disability benefits in 2002, i.e., fifteen years. The determination of a claimant’s disability status
should be prompt and expeditiously resolved under the law. The undersigned is committed to resolving
the disability appeals on the docket in a timely manner.
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II.
A.

Standard of Review

The Court’s inquiry on a Social Security appeal is to determine (1) whether the ALJ’s
non-disability finding is supported by substantial evidence, and (2) whether the ALJ employed
the correct legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742,74546 (6th Cir. 2007). In performing this review, the Court must consider the record as a whole.
Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). When
substantial evidence supports the ALJ’s denial of benefits, that finding must be affirmed, even if
substantial evidence also exists in the record upon which the ALJ could have found Plaintiff
disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a “‘zone of
choice’ within which he [or she] can act without the fear of court interference.” Id. at 773.
The second judicial inquiry -- reviewing the correctness of the ALJ’s legal analysis -may result in reversal even if the ALJ’s decision is supported by substantial evidence in the
record. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). “[A] decision of the
Commissioner will not be upheld where the [Social Security Administration] fails to follow its
own regulations and where that error prejudices a claimant on the merits or deprives the claimant
of a substantial right.” Bowen, 478 F.3d at 746.
B.

“Disability” Defined

To be eligible for disability benefits, a claimant must be under a “disability” as defined
by the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a
“disability” includes physical and/or mental impairments that are both “medically determinable”

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and severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging
in “substantial gainful activity” that is available in the regional or national economies. Id.
Administrative regulations require a five-step sequential evaluation for disability
determinations. 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any step ends the
ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential
review poses five questions:
1.

Has the claimant engaged in substantial gainful activity?

2.

Does the claimant suffer from one or more severe impairments?

3.

Do the claimant’s severe impairments, alone or in combination, meet or
equal the criteria of an impairment set forth in the Commissioner’s Listing
of Impairments (the “Listings”), 20 C.F.R. Subpart P, Appendix 1?

4.

Considering the claimant’s RFC, can he or she perform his or her past
relevant work?

5.

Assuming the claimant can no longer perform his or her past relevant
work -- and also considering the claimant’s age, education, past work
experience, and RFC -- do significant numbers of other jobs exist in the
national economy which the claimant can perform?

20 C.F.R. § 404.1520(a)(4); see also Miller v. Comm’r of Soc. Sec., 181 F. Supp.2d 816, 818
(S.D. Ohio 2001). A claimant bears the ultimate burden of establishing disability under the
Social Security Act’s definition. Key v. Comm’r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997).
III.
In her Statement of Errors, Plaintiff argues that the ALJ erred by: (1) not finding her
limited to sedentary work as required by application of administrative res judicata; (2) failing to
address medical source opinions of record; and (3) incorrectly evaluating her manipulative
ability.
Having carefully reviewed the administrative record and the parties’ briefs, and also
having carefully considered the ALJ’s analysis leading to the non-disability finding here at issue,

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the Court finds the ALJ carefully and reasonably developed and reviewed the record;
appropriately considered the medical evidence at issue; properly weighed opinion evidence
based upon reasons supported by substantial evidence; reasonably assessed Plaintiff’s credibility;
accurately determined Plaintiff’s RFC; and appropriately concluded, at Step Four and Five, that
Plaintiff can perform her past-relevant work as well as a significant number of jobs in the
national economy.
A.

Administrative Res Judicata

In Social Security disability cases, “the principles of res judicata can be applied against
the Commissioner.” Drummond v. Comm’r of Soc. Sec., 126 F.3d 837, 842 (6th Cir. 1997).
Thus, “[w]hen the Commissioner has made a final decision concerning a claimant’s entitlement
to benefits, the Commissioner is bound by this determination absent changed circumstances.” Id.
In cases such as this, “[a]bsent evidence of an improvement in a claimant’s condition, a
subsequent ALJ is bound by the findings of a previous ALJ.” Id. The Commissioner agrees that
ALJ Lombardo was bound by ALJ Knapp’s RFC finding in the absence of evidence that her
condition had improved. Doc. 12 at PageID 77.
Specifically, Plaintiff argues that ALJ Lombardo’s “decision [is] silent on the issue”
regarding res judicata under Drummond. Doc. 11 at PageID 68. Thus, Plaintiff contends that
ALJ Lombardo’s RFC finding “and the failure to consider the decision before[,]” i.e., ALJ
Knapp’s decision, “is an error of law.” Id. Contrary to Plaintiff’s assertion, however, ALJ
Lombardo set forth a detailed finding in this regard, concluding that “[t]he record documents
medical improvement in [Plaintiff’s] conditions and, accordingly,”6 ALJ Knapp’s RFC finding
was “not applicable for any relevant period since May of 2002.” Tr. 47 (Vol. III). Given that
Notably, Plaintiff does not argue in her Statement of Errors that ALJ Lombardo’s decision in
this regard is unsupported by substantial evidence. Instead, Plaintiff’s argument in the Statement of
Errors is limited only to whether or not the ALJ actually considered the issue of administrative res
judicata and made a finding of medical improvement. See doc. 11 at PageID 68-70.
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ALJ Lombardo did appropriately consider administrative res judicata, the Court finds no merit to
Plaintiff’s argument in this regard. Accord Drummond, 126 F.3d at 841-42.
B.

Treating Physicians

In her second assignment of error, Plaintiff argues that the ALJ erred by failing to follow
the regulatory requirements for weighing opinions from treating medical sources. Doc. 11 at
PageID 70. Specifically, in this regard, Plaintiff argues that the ALJ’s analysis of opinions from
Drs. White, Adams, Schleicher, and Kleinhenz fails to reference any findings with regard to
“specialization, treating relationship, consistency, or supportability[,]” i.e., make findings with
regard to the second step of the two-step treating physician analysis. See id.; see also infra n. 7.
Until March 27, 2017, “the Commissioner’s regulations [that apply to this appeal]
establish[ed] a hierarchy of acceptable medical source opinions[.]” Snell v. Comm’r of Soc. Sec.,
No. 3:12-cv-119, 2013 WL 372032, at *9 (S.D. Ohio Jan. 30, 2013). In descending order, these
medical source opinions are: (1) treaters; (2) examiners; and (3) record reviewers. Id. Under the
regulations in effect prior to March 27, 2017, the opinions of treaters are entitled to the greatest
deference because they “are likely to be . . . most able to provide a detailed, longitudinal picture
of [a claimant’s] medical impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings alone or from reports of
individual examinations[.]” 20 C.F.R. § 404.1527(c)(2).
A treater’s opinion must be given “controlling weight” if “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and . . . not inconsistent with the other
substantial evidence in [the] case record.” LaRiccia v. Comm’r of Soc. Sec., 549 F. App’x 377,
384 (6th Cir. 2013). Even if a treater’s opinion is not entitled to controlling weight, “the ALJ
must still determine how much weight is appropriate by considering a number of factors,
including the length of the treatment relationship and the frequency of examination, the nature

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and extent of the treatment relationship, supportability of the opinion, consistency of the opinion
with the record as a whole, and any specialization of the treating physician.” Blakley v. Comm’r
of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also 20 C.F.R. § 404.1527(c).7
ALJ Lombardo’s lengthy, detailed opinion -- read as a whole -- adequately sets forth
good reasons as to why the opinions of Drs. White, Adams, Schleicher, and Kleinhenz were not
entitled to deferential weight. See Tr. 31-41, 47-48 (Vol. III). Accordingly, the undersigned
finds the ALJ’s analysis of these opinions supported by substantial evidence.
C.

Manipulative Limitations.

In her final assignment of error, Plaintiff argues that the ALJ erred by finding her able to
perform frequent fingering and handling despite evidence concluding that she should be limited
to just occasional fingering and handling. Doc. 11 at PageID 72-73. The undersigned finds the
ALJ’s analysis supported by substantial evidence. Even assuming, arguendo, that the ALJ erred
in this regard, such error is harmless in light of the vocational expert’s testimony that, even if
limited to occasional fingering and handling, 8,000 jobs were available locally and 150,000 jobs
were available nationally at the light, unskilled exertional level. Tr. 806-07 (Vol. III).
IV.
The Court thus AFFIRMS the ALJ’s non-disability finding as supported by substantial
evidence, and TERMINATES this case on the Court’s docket.
IT IS SO ORDERED.

Date:

September 29, 2017

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

In essence, “opinions of a treating source . . . must be analyzed under a two-step process, with
care being taken not to conflate the steps.” Cadle v. Comm’r of Soc. Sec., No. 5:12-cv-3071, 2013 WL
5173127, at *5 (N.D. Ohio Sept. 12, 2013). Initially, “the opinion must be examined to determine if it is
entitled to controlling weight” and “[o]nly if . . . the ALJ does not give controlling weight to the treating
physician’s opinion is the opinion subjected to another analysis based on the particulars of” 20 C.F.R.
§ 404.1527. Id.
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