Coomer v. Commissioner of Social Security

Filing 10

REPORT AND RECOMMENDATIONS THAT: (1) THE ALJS NON-DISABILITY FINDING BE FOUND SUPPORTED BY SUBSTANTIAL EVIDENCE; AND (2) THIS CASE BE CLOSED. Objections to R&R due by 7/13/2017. Signed by Magistrate Judge Michael J. Newman on 6/29/17. (kma)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JAMES E. COOMER,
Plaintiff,

Case No. 3:16-cv-411

vs.
COMMISSIONER OF
SOCIAL SECURITY,

District Judge Thomas M. Rose
Magistrate Judge Michael J. Newman

Defendant.

REPORT AND RECOMMENDATION1 THAT: (1) THE ALJ’S NON-DISABILITY
FINDING BE FOUND SUPPORTED BY SUBSTANTIAL EVIDENCE; AND (2) THIS
CASE BE CLOSED

This is a Social Security disability benefits appeal.

At issue is whether the

Administrative Law Judge (“ALJ”) erred in finding Plaintiff not “disabled” and therefore
unentitled to Supplemental Security Income (“SSI”) and/or Disability Insurance Benefits
(“DIB”).2 This case is before the Court upon Plaintiff’s Statement of Errors (doc. 8), the
Commissioner’s memorandum in opposition (doc. 9), the administrative record (doc. 4), and the
record as a whole.3

1

Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.
2
“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 Report and Recommendation to DIB
regulations are made with full knowledge of the corresponding SSI regulations, and vice versa.
3
Hereafter, citations to the electronically-filed administrative record will refer only to the PageID
number.

I.
A.

Procedural History

Plaintiff filed an application for SSI and DIB asserting disability as of December 23,
2008 on account of a number of impairments including diabetes mellitus, hypertension, cataracts,
and borderline intellectual functioning. PageID 38.
After an initial denial of his application on July 9, 2015, Plaintiff had a hearing before
ALJ Mark Mockensmith. PageID 53-79. On July 23, 2012, the ALJ issued a written decision
finding Plaintiff not disabled. PageID 35-44.
0Thereafter, the Appeals Council denied review on August 3, 2016, making the ALJ’s
non-disability finding the final administrative decision of the Commissioner. PageID 26-29.
Plaintiff then filed this timely appeal. Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 435 (6th Cir.
2007) (noting that, “[u]nder the Federal Rules of Appellate Procedure, [claimant] had 60 days
from the Appeals Council’s notice of denial in which to file his appeal”).
B.

Evidence of Record

In his decision, the ALJ set forth a detailed recitation of the underlying medical evidence
in this case. PageID 37-43. Except as otherwise noted herein, the undersigned incorporates the
summary of evidence as set forth by the ALJ.
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.

2

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”
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:

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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, however, 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 his Statement of Errors, Plaintiff argues the ALJ’s Step Five determination -- that
Plaintiff can perform a significant number of jobs in the national economy -- is unsupported by
substantial evidence, because the ALJ failed to account for Plaintiff’s need for the refrigeration
of his insulin in his hypothetical question to the vocational expert (“VE”). Doc. 8 at PageID
1476.
At Step Five, the Commissioner must make a finding “supported by substantial evidence
that [Plaintiff] has the vocational qualifications to perform specific jobs.” Howard v. Comm’r of
Soc. Sec., 276 F.3d 235, 238 (6th Cir. 2002) (internal citation omitted).

“This kind of

‘substantial evidence may be produced through reliance on the testimony of a [VE] in response
to a ‘hypothetical’ question, but only if the question accurately portrays [Plaintiff’s] individual
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physical and mental impairments.”’ Id. (internal citation omitted).

In formulating the

hypothetical, the ALJ needs to incorporate only those limitations that he or she accepts as
credible. See Casey v. Sec. of Health and Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993).
Plaintiff argues that the ALJ failed to question the VE about the impact the need of
refrigeration would have on the availability of jobs. Doc. 8 at PageID 1476. Plaintiff testified
before the ALJ that he uses an insulin pen, and that “most of the time[] it’s got to be
refrigerated.” PageID 71, 78. According to Plaintiff, once the ALJ heard this VE testimony, the
ALJ then had the burden of “inquiring into the issue further” and asking the VE questions
“regarding the impact such need would have on the availability of jobs.” Doc. 8 at PageID 1476.
The Court disagrees with Plaintiff’s description of the ALJ’s burden. Plaintiff has not
provided the Court with a doctor’s note, or any other medical evidence to suggest that
refrigeration is required for the use of his insulin pen.4 The Court further notes that Plaintiff’s
own testimony was only that he needed to refrigerate his insulin pen “most of the time[] [sic]”,
but not all of the time. PageID 71, 78.
The Sixth Circuit has held that a hypothetical question need only include a claimant’s
credible impairments and limitations. Stanley v. Sec’y of Health and Human Services, 39 F.3d
115, 118 (6th Cir. 1994) (holding “the ALJ is not obligated to incorporate unsubstantiated
complaints into his hypotheticals”); Bartyzel v. Comm’r of Soc. Sec., 74 F. App’x 515, 524 (6th
Cir. 2003) (holding that “[t]he rule that a hypothetical question must incorporate all of the
claimant’s physical and mental limitation does not divest the ALJ of his or her obligation to
4

The Court notes that the majority of all types of insulin should not be kept at temperatures
exceeding 86 degrees Fahrenheit. The Court further notes cooling wallets are available through many
diabetes supply companies to keep insulin pens at a safe temperature without the need for refrigeration.
The Court further notes these reusable wallets have liners filled with crystals that once immersed in water
for 10-15 minutes can keep insulin cool for up to 48 hours. See Beware of Summer Extremes With
Insulin, Mayo Clinic, http://www.mayoclinic.org/diseases-conditions/diabetes/expert-blog/diabetesblog/BGP-20056534 (last visited 6/29/2017).
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assess credibility and determine facts. In fashioning the hypothetical question to be posed to the
vocation expert, the ALJ is required to incorporate only those limitations accepted as credible by
the finder of fact”). The ALJ’s hypothetical question was supported by the medical record, and
Plaintiff has not shown that he had limitations greater than those reflected in the ALJ’s
hypothetical question and eventual RFC finding.
As to Plaintiff’s testimony that his insulin pen needed refrigeration most of the time, the
ALJ was free to “present a hypothetical to the VE on the basis of his own assessment.” See
Jones, 336 F.3d at 476. As discussed above, the medical evidence did not support Plaintiff’s
alleged limitation, and there is no credible medical opinion that shows that Plaintiff had greater
limitations than the ALJ found. On this record, the Court finds that the ALJ properly chose not
to include as a limitation Plaintiff’s uncorroborated and ambiguous statement that his insulin
needed to be refrigerated “most of the time[]”.
Furthermore, as noted by the Commissioner, Plaintiff was represented by an attorney at
the hearing and had an opportunity to question the VE. Doc. 9 at PageID 1486 (citing PageID
77-78).

Yet, his attorney chose not to ask the VE any questions.

PageID 77-78.

See

McClanahan v. Com’r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (“[C]ounsel may not now
complain because he failed to cross examine [the medical expert] when he had an opportunity to
do so . . . ”); Baranich v. Barnhart, 128 F. App’x 481, 489–90 (6th Cir. 2005) (finding no error
when the attorney abandoned questioning of the VE). If either Plaintiff or his attorney felt that
clarification from the VE -- as to whether a significant amount of jobs would permit Plaintiff to
refrigerate his insulin pen -- it was up to Plaintiff’s counsel to seek clarification at the time of the
hearing, not after the fact. See McCommons v. Astrue, No. 10-cv-14992, 2012 WL 1986418, at
*11 (E.D. Mich. Mar. 13, 2012) (holding that “when claimants are represented by counsel, they

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must raise all issues and evidence at their administrative hearings in order to preserve them on
appeal”)); Pena v. Charter, 76 F.3d 906, 909 (8th Cir. 1996) (a claimant who fails to list alleged
disabling condition in application for benefits, or testify to condition at administrative hearing,
waives ability to raise issue on appeal, regardless of whether evidence exists in the record to
support claim)).
Accordingly, the Court finds the ALJ’s Step Five determination and reliance on the VE’s
testimony within that “zone of choice within which decision makers may go either way without
interference from the courts,” Felisky, 35 F.3d at 1035, as the decision is supported by
substantial evidence. Therefore, Plaintiff’s single assignment of error is hereby overruled.
IV.
IT IS THEREFORE RECOMMENDED THAT: (1) the Commissioner’s nondisability finding be found supported by substantial evidence, and AFFIRMED; and (2) this
case be CLOSED.

Date:

June 29, 2017

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

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after being
served with this Report and Recommendation. This period is not extended by virtue of Fed. R.
Civ. P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system.
If, however, this Report and Recommendation was served upon you by mail, this deadline is
extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d). Parties may seek an
extension of the deadline to file objections by filing a motion for extension, which the Court may
grant upon a showing of good cause.
Any objections filed shall specify the portions of the Report and Recommendation
objected to, and shall be accompanied by a memorandum of law in support of the objections. If
the Report and Recommendation is based, in whole or in part, upon matters occurring of record
at an oral hearing, the objecting party shall promptly arrange for the transcription of the record,
or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient,
unless the assigned District Judge otherwise directs.
A party may respond to another party’s objections within FOURTEEN days after being
served with a copy thereof. As noted above, this period is not extended by virtue of Fed. R. Civ.
P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If,
however, this Report and Recommendation was served upon you by mail, this deadline is
extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d).
Failure to make objections in accordance with this procedure may forfeit rights on appeal.
See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50
(6th Cir. 1981).

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