Daniels v. Social Security Administration, Commissioner of et al (JRG1)
Filing
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MEMORANDUM. Accordingly, it is hereby ORDERED that Plaintiffs Motion for Judgment on the Administrative Record [Doc. 22] is DENIED, the Commissioners Motion for Summary Judgment [Doc. 24] is GRANTED, and the Commissioners decision is AFFIRMED. This action is hereby DISMISSED. Signed by Magistrate Judge Christopher H Steger on 3/5/2018. (BDG, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
LEEROY DANIELS,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security
Administration,
Defendant.
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Case No.: 1:16-cv-405-CHS
MEMORANDUM
I.
Introduction
This action was instituted pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking
judicial review of the Commissioner’s final decision denying Leeroy Daniels’s (“Plaintiff”)
claim for Supplemental Security Income (“SSI”), as provided by the Social Security Act.
The parties have consented to entry of final judgment by the United States Magistrate
Judge under the provisions of 28 U.S.C. § 636(c), with any appeal to the Court of Appeals for the
Sixth Circuit [Doc. 16]. Pending before the Court are Plaintiff’s Motion for Judgment on the
Administrative Record [Doc. 22] and Defendant’s Motion for Summary Judgment [Doc. 24].
For the reasons stated herein, the Court AFFIRMS the Commissioner’s decision.
Accordingly, the Court DENIES Plaintiff’s motion [Doc. 22] and GRANTS Defendant’s motion
[Doc. 24].
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II.
Background
A. Procedural History
In December 2012, Plaintiff protectively filed for SSI under Title XVI of the Social
Security Act (“Act”), 42 U.S.C. § 1381 et seq., based on right eye blindness, a learning disorder,
and illiteracy1 [Tr. 194, 224]. 2 Plaintiff’s claims were denied initially and on reconsideration
[Tr. 70, 86]. On July 20, 2015, Plaintiff testified via videoconference at a hearing before
Administrative Law Judge (“ALJ”) Thomas Sanzi [Tr. 40-56]. On July 27, 2015, the ALJ issued
a partially favorable decision finding that Plaintiff was disabled as of January 16, 2015, but not
prior to that date [Tr. 18-33]. On August 8, 2016, the Appeals Council denied Plaintiff’s request
for review [Tr. 1-3]. Thus, Plaintiff has exhausted his administrative remedies, and the ALJ’s
decision stands as the Commissioner’s final decision subject to judicial review. See 42 U.S.C.
§ 405(g).
B. Relevant Facts
Plaintiff’s Age, Education, and Past Work Experience
Plaintiff is currently forty-one years old. He completed tenth grade and last worked as a
construction laborer in October 2010 [Tr. 224-225, 232]. At the time of his alleged onset date of
October 5, 2011, Plaintiff was thirty-five years old [Tr. 194]. On the application date, Plaintiff
was thirty-six years old [Id.].
Plaintiff’s Testimony and Medical History
1
The Court will focus its review of the record on the impairments that are relevant to Plaintiff’s Motion for
Judgment on the Administrative Record [Doc. 22].
2
An electronic copy of the administrative record is docketed at Doc. 13.
2
The parties and the ALJ have summarized and discussed the medical and testimonial
evidence of the administrative record. Accordingly, the Court will discuss those matters as
relevant to the analysis of the parties’ arguments.
The ALJ’s Findings
After considering the entire record, the ALJ made the following findings:
1.
The claimant has not engaged in substantial gainful activity since the
alleged onset date (20 CFR 416.971 et seq.).
2.
Since the alleged onset date of disability, October 5, 2011, the claimant
has had the following severe impairments: intellectual disability; learning
disability. Beginning on the established onset date of disability, January
16, 2015, the claimant has had the following severe impairments:
intellectual disability; learning disability; degenerative disc disease (20
CFR 416.920(c)).
3.
Prior to January 16, 2015, the date the claimant became disabled, the
claimant did not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in
20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925,
and 416.926).
4.
After careful consideration of the entire record, I find that, prior to
January 16, 2015, the date the claimant became disabled, the claimant
had the residual functional capacity to perform a full range of work at all
exertional levels, but with the following nonexertional limitations: He
was limited to jobs involving only occasional peripheral acuity and depth
perception. The claimant was limited to work involving simple, routine
tasks, in a low-stress environment, which is defined as having only
occasional decision-making required and only occasional changes in the
work setting. He should have had only occasional interaction with the
public. The claimant should have been allowed to be off-task 5 percent
of the workday, in addition to normal breaks.
5.
The claimant has no past relevant work (20 CFR 416.965).
6.
Prior to the established disability onset date, the claimant was a younger
individual age 18-49 (20 CFR 416.963).
7.
The claimant has a limited education and is able to communicate in
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English (20 CFR 416.964).
8.
Transferability of job skills is not an issue in this case because the
claimant does not have past relevant work (20 CFR 416.968).
9.
Prior to January 16, 2015, considering the claimant’s age, education,
work experience, and residual functional capacity, there were jobs that
existed in significant numbers in the national economy that the claimant
could have performed (20 CFR 416.969 and 416.969(a)).
10.
Beginning on January 16, 2015, the severity of the claimant’s
impairments has met the criteria of section 12.05 of 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 416.920(d) and 416.925).
11.
The claimant was not disabled prior to January 16, 2015, (20 CFR
416.920(g)) but became disabled on that date and has continued to be
disabled through the date of this decision (20 CFR 416.920(d)).
[Tr. 20-32].
III.
Analysis
A. Standard of Review
The determination of disability under the Act is an administrative decision. To establish
disability under the Social Security Act, a claimant must establish he is unable to engage in any
substantial gainful activity due to the existence of a medically determinable physical or mental
impairment that can be expected to result in death or that has lasted or can be expected to last for
a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A); Abbot v. Sullivan,
905 F.2d 918, 923 (6th Cir. 1990). The Commissioner employs a five-step sequential evaluation
to determine whether an adult claimant is disabled. 20 C.F.R. §§ 404.1520; 416.920. The
following five issues are addressed in order: (1) if the claimant is engaging in substantial gainful
activity he is not disabled; (2) if the claimant does not have a severe impairment he is not
disabled; (3) if the claimant’s impairment meets or equals a listed impairment he is disabled; (4)
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if the claimant is capable of returning to work he has done in the past he is not disabled; (5) if the
claimant can do other work that exists in significant numbers in the regional or the national
economy he is not disabled. Id. If the ALJ makes a dispositive finding at any step, the inquiry
ends without proceeding to the next step. 20 C.F.R. §§ 404.1520; 416.920; Skinner v. Sec’y of
Health & Human Servs., 902 F.2d 447, 449-50 (6th Cir. 1990). Once, however, the claimant
makes a prima facie case that he cannot return to his former occupation, the burden shifts to the
Commissioner to show that there is work in the national economy which he can perform
considering his age, education and work experience. Richardson v. Sec’y of Health and Human
Servs., 735 F.2d 962, 964 (6th Cir. 1984); Noe v. Weinberger, 512 F.2d 588, 595 (6th Cir. 1975).
The standard of judicial review by this Court is whether the findings of the Commissioner
are supported by substantial evidence and whether the Commissioner made any legal errors in
the process of reaching the decision. See Richardson v. Perales, 402 U.S. 389, 401 (1971)
(adopting and defining substantial evidence standard in the context of Social Security cases);
Landsaw v. Sec’y of Health and Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). Even if there
is evidence on the other side, if there is evidence to support the Commissioner’s findings they
must be affirmed. Ross v. Richardson, 440 F.2d 690, 691 (6th Cir. 1971). The Court may not
reweigh the evidence and substitute its own judgment for that of the Commissioner merely
because substantial evidence exists in the record to support a different conclusion.
The
substantial evidence standard allows considerable latitude to administrative decision makers. It
presupposes there is a zone of choice within which the decision makers can go either way,
without interference by the courts. Felisky v. Bowen, 35 F.3d 1027 (6th Cir. 1994) (citing
Mullen v. Bowen, 800 F.2d 535, 548 (6th Cir. 1986)); Crisp v. Sec’y, Health and Human Servs.,
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790 F.2d 450 n.4 (6th Cir. 1986).
The court may consider any evidence in the record, regardless of whether the ALJ cited
it. See Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). However, for
purposes of substantial evidence review, the court may not consider any evidence that was not
before the ALJ. Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Furthermore, the court is
not obligated to scour the record for errors not identified by the claimant, Howington v. Astrue,
No. 2:08-cv-189, 2009 WL 2579620, at *6 (E.D. Tenn. Aug. 18, 2009) (stating that assignments
of error not made by claimant were waived), and “issues which are ‘adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation, are deemed waived,’”
Kennedy v. Comm’r of Soc. Sec., 87 F. App’x 464, 466 (6th Cir. 2003) (quoting United States v.
Elder, 90 F.3d 1110, 1118 (6th Cir. 1996)).
B. Discussion
Plaintiff presents two issues for review: (1) whether the ALJ erred in finding that he did
not meet Listing 12.05 prior to January 16, 2015; and (2) whether the ALJ erred in making
conclusions that only could have been made by a medical expert [Doc. 23 at 4-9].
1. Consideration of Listing 12.05
The ALJ found that Plaintiff’s impairments met the severity of Listing 12.05C beginning
on January 16, 2015 [Tr. 31-32]. Plaintiff argues that his impairments met the criteria for Listing
12.05B and 12.05C prior to January 16, 2015 [Doc. 23 at 4-6].
The disability listings contain over one hundred conditions “severe enough to prevent an
individual from doing any gainful activity, regardless of his or her age, education, or work
experience.”
20 C.F.R. § 416.925(a).
The listing of impairments “[used at] step three
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streamlines the decision process by identifying those claimants whose medical impairments are
so severe that it is likely they would be found disabled regardless of their vocational
background.” Bowen v. Yuckert, 482 U.S. 137, 153 (1987). The burden of proof lays with the
claimant at steps one through four of the five-step sequential disability evaluation. See Her v.
Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999). Thus, the claimant bears the burden at
step three of demonstrating all of the required listing-level findings. See Sullivan v. Zebley, 493
U.S. 521, 530 (1990) (“For a claimant to show that his impairment matches a listing, it must
meet all of the specified medical criteria. An impairment that manifests only some of those
criteria, no matter how severely, does not qualify.”); 20 C.F.R. 416.925(c)(3) (“We will find that
your impairment(s) meets the requirements of a listing when it satisfies all of the criteria of that
listing . . . and meets the duration requirement”). 3 As the Sixth Circuit has explained, “[i]t is
insufficient that a claimant comes close to meeting the requirements of a listed impairment.”
Elam ex rel. Golay v. Comm’r of Soc. Sec., 348 F.3d 124, 125 (6th Cir. 2003) (citing Dorton v.
Heckler, 789 F.2d 363, 367 (6th Cir. 1986)).
To meet Listing 12.05B, a claimant must establish a valid verbal, performance, or full
scale IQ of 59 or less. 20 C.F.R. Pt. 404, Subpart P., App. 1, §§ 12.00A, 12.05B. Plaintiff
claims that he met 12.05B because school records documented a verbal IQ of 59 at the age of
fifteen, and a consultative examination taken in 2013 documented a full scale IQ of 48 and a
verbal IQ of 54 [Tr. 330, 422-423; Doc. 23 at 4-5].
To be “valid,” an IQ score “must reflect the plaintiff’s true abilities as demonstrated by
his or her performance at work, household management and social functioning.” Brown v. Sec’y
3
The “duration requirement” means that a claimant’s impairment “must have lasted or must be expected to last for a
continuous period of at least 12 months.” 20 C.F.R. § 416.909.
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of Health & Human Servs., 948 F.2d 268, 269 (6th Cir. 1991). An ALJ may reject IQ scores that
are inconsistent with the record. Baker v. Comm’r of Soc. Sec., 21 F. App’x 313, 315 (6th Cir.
2001) (affirming the ALJ’s rejection of a claimant’s IQ scores as inconsistent with the record and
noting that “the ALJ should examine test results of this sort to assure consistency with daily
activities and behavior”). “The ALJ may choose to disregard IQ scores that would normally lead
to a finding of disability when those scores were undermined by a doctor’s full evaluation.”
Jackson v. Comm’r of Soc. Sec., No. 1:13-cv-572, 2014 WL 6673613, at *6 (S.D. Ohio Nov. 21,
2014) (citing Dragon v. Comm’r of Soc. Sec., 470 F. App’x 454, 462 (6th Cir. 2012); see also
Daniels v. Comm’r of Soc. Sec., 70 F. App’x 868, 869, 872 (6th Cir. 2003).
In this case, substantial evidence supports the ALJ’s conclusion that the IQ testing
evidence of record is not a valid representation of Plaintiff’s overall functioning. The ALJ found
that the narrative reports accompanying the IQ test results indicated that the extremely low
scores were not valid indicators of Plaintiff’s functioning [Tr. 23]. The ALJ observed that,
although Plaintiff had a verbal IQ score of 59 in 1992, the school psychologist noted that his
scores were higher on testing three years earlier [Tr. 23, 291, 301]. The school psychologist
stated that Plaintiff’s full-scale IQ score of 64 was likely a better overall indicator of his
functioning [Tr. 23, 299-301].
The ALJ also noted that during the February 2013 consultative evaluation, Dr. O’Connell
stated that Plaintiff’s IQ scores should be interpreted with caution because Plaintiff had obtained
higher scores on testing as a child [Tr. 23, 331-332]. Additionally, Dr. O’Connell gave a rule out
diagnosis of malingering, in part because Plaintiff “demonstrated minimal effort on testing,” thus
suggesting to the ALJ that Dr. O’Connell did not believe that Plaintiff’s performance was
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entirely valid [Tr. 23, 26, 331-332].
The state agency psychological consultants reviewed this evidence and indicated that
Plaintiff’s IQ scores did not meet the criteria for Listing 12.05B [Tr. 63, 79-80]. They noted that
Plaintiff appeared to malinger to some extent, but that he had “valid mild mental retardation”
[Tr. 63, 79-80]. 4 The ALJ gave these opinions considerable weight [Tr. 28].
Considering the narrative reports accompanying the test results, the opinions of the state
agency psychological consultants, and Plaintiff’s reported daily activities, the ALJ concluded
that Plaintiff did not have a valid IQ score of 59 or lower [Tr. 23, 26-29]. These are sound
reasons to support the ALJ’s decision that Plaintiff did not meet Listing 12.05B. Although
Plaintiff may be correct that the ALJ could have found the IQ results in question valid, thus
satisfying Listing 12.05B, the ALJ’s decision to the contrary is nevertheless supported by
substantial evidence.
Plaintiff also argues that he meets Listing 12.05C, which requires: “(1) significantly sub
average general intellectual functioning with deficits in adaptive functioning prior to age twentytwo; (2) a valid verbal, performance, or full scale IQ of 60 to 70; and (3) another physical or
mental impairment imposing an additional and significant work-related limitation of function.”
Peterson v. Comm’r of Soc. Sec., 552 F. App’x 533, 539 (6th Cir. 2014) (citing 20 C.F.R. Pt.
404, Subpt. P, App’x 1, §§ 12.00A, 12.05C (other citations omitted)). Here, the ALJ determined
that Plaintiff had a valid IQ score between 60 and 70, but that he did not have another physical or
mental impairment imposing an additional and significant work-related limitation of function
4
The Court notes that the relevant Listing refers to this disability as Intellectual Disability, 20 C.F.R. Pt. 404, Subpt.
P, App. 1, § 12.05, and that the passage of Rosa’s Law in 2010 eliminated references to “mental retardation” and
“the mentally retarded” in federal law and replaced them with “intellectual disability” and “individuals with
intellectual disabilities.” Pub. L. No. 111-256, 124 Stat. 2643.
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prior to January 16, 2015 [Tr. 24].5
After reviewing the record and the ALJ’s decision, the Court concludes that the ALJ’s
decision is supported by substantial evidence. As an additional physical impairment, Plaintiff
alleged that he had a significant vision problem, including right eye blindness and “floaters” in
the left eye [Tr. 25]. However, the ALJ found that the record did not establish that the alleged
visual impairment was a severe impairment [Tr. 21]. The ALJ noted that, although Plaintiff
alleged blindness in his right eye since childhood, he passed a vision screening at age 15 [Tr. 21,
298-299]. The ALJ also noted that the record contained limited treatment or evaluation for any
visual impairment [Tr. 25]. At an eye examination in April 2013, Dr. Mabry found visual acuity
of 20/50 and generalized constriction of the visual fields in the left eye, but stated that there was
no specific reason for the decrease in his left eye vision [Tr. 21, 25, 383, 386-388]. The ALJ also
noted that Dr. Mabry had observed structural abnormalities and 20/400 vision in the right eye
[Tr. 25]. However, in May 2013, Dr. Randall reviewed the records and noted that an individual
with such limited visual fields would have difficulty avoiding even ordinary hazards [Tr. 21, 25,
394]. Plaintiff displayed no evidence of such difficulties, suggesting that the results of visual
field testing might not be valid [Tr. 21, 25, 394].
The ALJ considered all of this evidence and decided to account for Plaintiff’s non-severe
vision impairment in the Residual Functional Capacity by limiting Plaintiff to only occasional
peripheral acuity and depth perception [Tr. 24]. See 20 C.F.R. § 416.923; Kirkland v. Comm’r of
Soc. Sec., 528 F. App’x 425, 427 (6th Cir. 2013) (the ALJ “must consider limitations and
restrictions imposed by all of [the] individual’s impairments, even those that are not severe”)
5
The ALJ found that Plaintiff’s treatment records established a severe back impairment as of January 16, 2015 [Tr.
20]. Accordingly, the ALJ found that Plaintiff met the criteria of Listing 12.05C on that date [Tr. 31-32].
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(citation omitted). As the ALJ noted, pursuant to Social Security Ruling 85-15, the occupational
base of work at all exertional levels is not affected by a vision impairment so long as a person
“retains sufficient visual acuity to be able to handle and work with rather large objects (and has
the visual fields to avoid ordinary hazards in a workplace)” [Tr. 25]. Consistent with the state
agency medical consultants, the ALJ found no evidence in the record demonstrating that
Plaintiff’s visual problems would prevent him from negotiating ordinary hazards or handling
relatively large objects [Tr. 21, 25-26, 62-63, 78-79]. Accordingly, the ALJ found that because
Plaintiff’s vision problems did not impose significant work-related limitations and were not
severe impairments, Plaintiff did not meet the criteria of Listing 12.05C prior to January 2015
[Tr. 20-21, 25-26].
Plaintiff is correct that there is some evidence that supports his allegation of a severe eye
impairment. However, the issue before the Court is whether substantial evidence supports the
ALJ’s decision. Plaintiff must do more than simply point to countervailing evidence in the
record. See Peterson, 552 F. App’x at 540 (“Merely marshalling evidence to suggest that [the
claimant] is disabled, however, is insufficient; to prevail on appeal, [the claimant] must
demonstrate that the ALJ’s determination that he was not disabled is not supported by substantial
evidence.”). Upon review of the record, the Court concludes that substantial evidence supports
the ALJ’s decision.
2. Medical Expert
Next, Plaintiff argues that the ALJ erred by substituting his own medical judgment for
that of a physician and that he should have obtained the testimony of a medical expert to
interpret the medical evidence of record [Doc. 23 at 6-9].
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The Regulations provide that an ALJ “may . . . ask for and consider opinions from
medical experts on the nature and severity of [a claimant’s] impairment(s). . . .” 20 C.F.R. §
416.927(e)(2)(iii); see also Simpson v. Comm’r of Soc. Sec., 344 F. App’x 181, 189 (6th Cir.
2009). 6 However, the ALJ has discretion to decide whether a medical expert is necessary. See
Simpson, 344 F. App’x at 189; Lance v. Astrue, No. 3:07-cv-411, 2008 WL 3200718, at *4 (E.D.
Tenn. Aug. 5, 2008). “So long as there is sufficient evidence in the record on which the ALJ can
make a determination of disability, the ALJ retains this discretion.” Ruby v. Colvin, No. 2:13-cv01254, 2015 WL 1000672, at *4 (S.D. Ohio Mar. 5, 2015) (citing Simpson, 344 F. App’x at 189;
Landsaw v. Sec’y of Health & Human Servs., 803 F.2d 211, 214 (6th Cir. 1986)). Thus, where
an ALJ “has evidence including the claimant’s medical history, daily activities, treating
physician’s opinions, and state agency opinions, the evidence is sufficient for the ALJ to choose
not to call a medical expert.” Id. (citing Simpson, 344 F. App’x at 189); see also Report and
Recommendation entered in Burlingame v. Astrue, No. 2:11-cv-817, 2012 WL 2953057, at *7
(S.D. Ohio July 19, 2012), and adopted by the court, No. 2:11-cv-817, 2012 WL 3879952 (S.D.
Ohio Sept. 6, 2012) (finding that ALJ did not abuse his discretion in failing to call a medical or
psychological expert when the record contained the opinions of two state agency psychologists
who had concluded that the claimant did not meet or equal any listed impairment).
The Court is not persuaded that the ALJ abused his discretion in this case by failing to
seek the opinion of a medical expert. The ALJ thoroughly reviewed the medical and nonmedical
6
The Social Security Administration revised its rules regarding the evaluation of medical evidence. 82 Fed. Reg.
5844-01, 2017 WL 168819. The revised regulations went into effect on March 27, 2017, id., and are not applicable
to this case. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (“Retroactivity is not favored in the
law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless
their language requires this result.”); Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 642 (6th Cir. 2006) (“The Act
does not generally give the SSA the power to promulgate retroactive regulations.”).
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evidence and cited it in support of his legal conclusions. Reviewing and weighing medical
reports to make a legal determination is precisely the ALJ’s function. See Griffith v. Comm’r of
Soc. Sec., 582 F. App’x 555, 562 (6th Cir. 2014) (“As the ALJ properly reviewed and weighed
the reports to make a legal determination that is supported by substantial evidence, the assertion
that the ALJ was ‘playing doctor’ is unsupported.”); Coldiron v. Comm’r of Soc. Sec., 391 F.
App’x 435, 439 (6th Cir. 2010) (“An ALJ does not improperly assume the role of a medical
expert by weighing the medical and non-medical evidence before rendering an RFC finding.”).
As discussed above, the ALJ’s conclusions related to Plaintiff’s IQ scores and alleged
vision impairments were consistent with the medical professionals’ findings and opinions. The
ALJ weighed the medical evidence as required by the Regulations. However, there is no
evidence in the record that the ALJ substituted his lay opinion for that of a physician. Plaintiff
has failed to demonstrate that the ALJ abused his discretion by not obtaining testimony from a
medical expert. Accordingly, the Court concludes that Plaintiff is not entitled to relief on this
issue.
IV.
Conclusion
Having reviewed the administrative record and the parties’ briefs filed in support of their
respective motions, the Court concludes that there is substantial evidence in the record to support
the ALJ’s findings and the Commissioner’s decision, and that neither reversal nor remand is
warranted on these facts. With such support, the ALJ’s decision must stand, even if the record
also contains substantial evidence that would support the opposite conclusion. See, e.g.,
Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005). Accordingly, it is hereby
ORDERED that Plaintiff’s Motion for Judgment on the Administrative Record [Doc. 22] is
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DENIED, the Commissioner’s Motion for Summary Judgment [Doc. 24] is GRANTED, and the
Commissioner’s decision is AFFIRMED. This action is hereby DISMISSED and the Court
directs the Clerk to CLOSE the case. A separate judgment will enter.
/s/Christopher H. Steger
UNITED STATES MAGISTRATE JUDGE
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