Hosier v. Social Security Administration, Commissioner of (RLJ2)

Filing 17

MEMORANDUM OPINION and ORDER: Motions terminated: Based upon the above findings, Plaintiff's Motion for Judgment on the Pleadings [Doc. 13] is DENIED, and the Commissioner's Motion for Summary Judgment [Doc. 15] is GRANTED. This matter is dismissed for the reasons outlined herein.Signed by Magistrate Judge Clifton L Corker on 9/7/2017. (JCK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
GREENEVILLE DIVISION
VENIDA SUE HOSIER,
Plaintiff,
vs.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant

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2:16-CV-00234-MCLC

MEMORANDUM OPINION AND ORDER
This matter is before the United States Magistrate Judge, with the consent of the parties
and by order of reference [Doc. 12] pursuant to 28 U.S.C. § 636, for disposition and entry of a
final judgment. Plaintiff’s application for disability insurance benefits under the Social Security
Act was administratively denied following a hearing before an Administrative Law Judge (“ALJ”).
This is an action for judicial review of that final decision of the Commissioner. Plaintiff has filed
a Motion for Judgment on the Pleadings [Doc. 13], and the defendant Commissioner has filed a
Motion for Summary Judgment [Doc. 15].
I.

Standard of Review
The sole function of this Court in making this review is to determine whether the findings

of the Commissioner are supported by substantial evidence in the record. McCormick v. Secretary
of Health & Hum. Servs., 861 F.2d 998, 1001 (6th Cir. 1988). “Substantial evidence” is defined
as evidence that a reasonable mind might accept as adequate to support the challenged conclusion.
Richardson v. Perales, 402 U.S. 389 (1971). It must be enough to justify, if the trial were to a
jury, a refusal to direct a verdict when the conclusion sought to be drawn is one of fact for the jury.
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Consolo v. Fed. Maritime Comm’n, 383 U.S. 607 (1966). The Court may not try the case de novo
nor resolve conflicts in the evidence, nor decide questions of credibility. Garner v. Heckler, 745
F.2d 383, 387 (6th Cir. 1984). Even if the reviewing court were to resolve the factual issues
differently, the Commissioner’s decision must stand if supported by substantial evidence.
Liestenbee v. Sec. of Health & Hum. Servs., 846 F.2d 345, 349 (6th Cir. 1988). Yet, even if
supported by substantial evidence, “a decision of the Commissioner will not be upheld where the
SSA 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 v. Comm’r of Soc. Sec., 478 F.3d 742, 746
(6th Cir. 2007).
The applicable administrative regulations require the Commissioner to utilize a five-step
sequential evaluation process 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.

Is 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). The 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). However, “[t]he burden shifts to the Commissioner at [the] fifth step to establish the

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claimant’s ability to do other work.” Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001) (citations
omitted).
II.

Procedural History and Relevant Facts

A.

Procedural History
Plaintiff, Venida Sue Hosier, was born in 1964 and was a younger individual at the time of

her application for benefits. See 20 C.F.R. § 404.1563(d). She filed an application for disability
insurance benefits alleging disability due to seizures, diabetes, imbalance, and slurred speech (Tr.
143).

Plaintiff’s application was initially denied on December 4, 2012, and again upon

reconsideration on May 17, 2013 (Tr. 15).

On October 31, 2014, the ALJ conducted an

administrative hearing, during which Plaintiff and a vocational expert testified (Tr. 28-49).
In evaluating Plaintiff’s claim, the ALJ conducted the five-step analysis. The ALJ issued
his opinion on April 24, 2015, with the following findings, ultimately concluding Plaintiff is not
disabled.
1.
The claimant meets the insured status requirements of the Social Security
Act through December 31, 2017.
2.
The claimant has not engaged in substantial gainful activity since June 23,
2012, the alleged onset date (20 CFR 404.1571 et seq.).
3.
The claimant has the following severe impairments: seizure disorder,
diabetes mellitus, vision problems, fractures of the lower limb, and an affective
disorder (20 CFR 404.1520(c)).
4.
The claimant does 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 404.1520(d), 404.1525 and
404.1526).
5.
After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to perform less than a full range of
light work as defined in 20 CFR 404.1567(b). The claimant can lift/carry up to 20
pounds on an occasional basis, and 10 pounds on a frequent basis. She can
stand/walk for up to six hours in an 8-hour workday, and she can sit for up to six
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hours in an 8-hour workday. The claimant must avoid exposure to pulmonary
irritants, unprotected heights, and other workplace hazards. She is unable to climb
ladders, ropes, or scaffolds, and she is unable to engage in kneeling or crawling
activities. She can occasionally climb stairs and ramps, and she can occasionally
engage in balancing, stooping, and crouching activities. The claimant is able to
perform tasks where bilateral vision is not essential, and she is able to perform
simple and details tasks, but not complex tasks.
6.
The claimant is capable of performing past relevant work as a hotel clerk
(DOT #238.367-038). This work does not require the performance of work-related
activities precluded by the claimant’s residual functional capacity (20 CFR
404.1565).
7.
The claimant has not been under a disability, as defined in the Social
Security Act, from June 23, 2012, through the date of this decision (20 CFR
404.1520(f)).
(Tr. 17-21).
B.

Relevant Facts
The ALJ’s decision includes a review of the underlying medical evidence (Tr. 17-21).

Plaintiff, in her memorandum in support of her pending motion, provides a summary of the facts
and evidence [Doc. 14, pg. 2-4]. The Commissioner’s memorandum in support of her motion also
contains a summary of the facts and evidence [Doc. 16, pg. 2-7]. Reference to the evidence herein,
both medical and otherwise, is only set forth as necessary.
III.

Plaintiff’s Arguments and Analysis

A.

Treatment of Plaintiff’s Impairments
Plaintiff asserts that the ALJ failed to properly evaluate the effects of her severe

impairments “in combination.” [Doc. 14, pg. 7]. Specifically, she contends that the ALJ failed to
consider the impact caused by her “visual impairments in combination with her diabetes and other
physical and mental impairments” that render her “unable to be on her feet for the bulk of the day,
to see anything that requires more than gross vision, and to maintain attention and concentration.”
[Id. at 8]. Plaintiff avers this failure results in an erroneous determination.
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In reviewing the medical records and determining the appropriate RFC, the ALJ addressed
each of her severe impairments in turn. In regards to her visual impairments, the ALJ found that
Plaintiff’s statements concerning the intensity, persistence and limiting effects of her symptoms
were not entirely credible. However, the ALJ found her complaints to be partially credible and
included the following vision limitations in her RFC: she “is able to perform tasks where bilateral
vision is not essential.” (Tr. 19). The underlying medical record supports the ALJ’s treatment.
The Commissioner accurately summarized Plaintiff’s vision medical history as follows:
When Plaintiff presented for medical care after her seizure on June 23, 2012, she
reported that her husband drove her to and from work due to her vision problems
(Tr. 258-54). . . . While Plaintiff reported vision loss after her seizure, her eye exam
was normal the following week (Tr. 280). She also routinely denied vision and eye
problems at her follow-up appointments (Tr. 253-54, 294, 296, 300-02, 325, 392,
405-06, 425). Plaintiff reported blurry vision in August of 2014, but she reported
no vision changes at an appointment a month later (Tr. 392, 399).
[Doc. 16, pg. 10]. The underlying record does not contain any evidence that Plaintiff is more
limited than the ALJ determined. Indeed, the medical record shows she routinely denied vison
and eye problems at her medical appointments.
The ALJ also properly considered Plaintiff’s other impairments in combination. Regarding
her diabetes, Plaintiff reported no symptoms related to her diabetes, and Dr. Kickliter’s treatment
focused generally on medication management (Tr. 292, 300-02, 325, 424). Concerning her “other
physical” impairments, such as her lower limb impairment, the ALJ noted that Plaintiff has not
received any medical treatment for alleged ankle problems, and during the hearing, she made “very
little mention of her ankle condition.” (Tr. 17). The medical evidence also demonstrates that
Plaintiff ambulates without assistance, not using any assistive devices (Tr. 35, 186). Regarding
Plaintiff’s seizure disorder, the ALJ highlighted that the treatment notes from her follow-up visits
after her “one seizure incident” indicate that her “seizure condition is fully controlled.” (Tr. 18).

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Finally, regarding Plaintiff’s mental impairments, both the State Agency consultant and the
consultative examiner opined that Plaintiff’s mental limitations were mild at worse, and no
evidence exists that her affective disorder affects her ability to perform work-related functions (Tr.
69, 387). Furthermore, Plaintiff has not sought treatment for any mental health issues nor was she
taking any related medications. Although she testified at the hearing that she had anxiety and often
experienced crying spells, Plaintiff did not report these issues to her doctors nor did they find that
she presented with any psychological issues (Tr. 39, 254, 298, 302, 402). The ALJ appropriately
relied upon the medical opinions in rendering his findings and considered all of Plaintiff’s
impairments in combination. The Court finds that substantial evidence supports the ALJ’s
treatment of Plaintiff’s impairments. Plaintiff’s claim is thus without merit.
B.

Plaintiff’s Subjective Complaints
Plaintiff further asserts that the ALJ erred in weighing her subjective complaints. She avers

that that his adverse credibility finding is not supported by substantial evidence because her
testimony concerning her vision difficulties, diabetic difficulties, and other impairments are amply
supported by the medical evidence of record.
“It is, of course, for the ALJ, and not the reviewing court, to evaluate the credibility of
witnesses, including that of the claimant.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th
Cir. 2007). “However, the ALJ is not free to make credibility determinations based solely upon
an ‘intangible or intuitive notion about an individual’s credibility.’” Id. The ALJ’s decision “must
contain specific reasons for the weight given to the individual’s symptoms, be consistent with and
supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer
can assess how the adjudicator evaluated the individual’s symptoms.” Soc. Sec. Ruling 16-3p;
Titles II & XVI: Evaluation of Symptoms in Disability Claims, SSR 16-3P, 2016 WL 1119029, *9

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(S.S.A. Mar. 16, 2016).
In making judgments about a claimant’s credibility, the ALJ should consider:
(i) [The claimant’s] daily activities;
(ii) The location, duration, frequency, and intensity of [the claimant’s] pain or other
symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication [the
claimant] take[s] or ha[s] taken to alleviate [the claimant’s] pain or other symptoms;
(v) Treatment, other than medication, [the claimant] receive[s] or ha[s] received for
relief of [the claimant’s] pain or other symptoms;
(vi) Any measures [the claimant] use[s] or ha[s] used to relieve pain or other
symptoms . . .; and
(vii) Other factors concerning [the claimant’s] functional limitations and
restrictions due to pain or other symptoms.
20 C.F.R. § 416.929(c)(3). Social Security Ruling 16-3p provides that an ALJ must consider the
“entire case record, including the objective medical evidence, the individual’s own statements
about symptoms, statements and other information provided by treating or examining physicians
or psychologists and other persons about the symptoms and how they affect the individual, and
any other relevant evidence in the case record” and notes that the ALJ will “not disregard an
individual’s statements about the intensity, persistence, and limiting effects of symptoms solely
because the objective medical evidence does not substantiate the degree of impairment-related
symptoms alleged by the individual.” S.S.R. 16-3p, 2016 WL 1119029 at *5.
The ALJ concluded that Plaintiff’s medical impairments could cause the symptoms she
alleged but declined to credit her testimony regarding the intensity, persistence, and limiting effects
of the symptoms to the extent they were inconsistent with the medical evidence, including the
medical assessments, treatment notes, and diagnostic findings. While the ALJ did not discuss all
seven factors listed in 20 C.F.R. § 416.929(c)(3), he provided specific reasons for his credibility
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determination, including the lack of diagnostic findings to corroborate her subjective complaints
concerning the severity of her ankle, vision, and other medical conditions, as well as noting that
the medical record indicates that her seizure condition has improved with medication and is fully
controlled.
The ALJ may consider whether Plaintiff’s complaints of disability are inconsistent with
and undermined by the objective medical evidence. See Norris v. Comm’r of Soc. Sec., 461 F.
App’x 433, 438 (6th Cir. 2012) (noting that plaintiff’s description of the severity of his disabilities
was inconsistent with the medical record, specifically, the nature of the treatments prescribed and
the results of the various medical tests administered). As discussed in detail supra, the ALJ’s
determination of Plaintiff’s limitations caused by her physical and mental impairments is
supported by substantial evidence. Plaintiff fails to provide any evidence, other her own testimony,
to challenge the ALJ’s conclusions. The Court finds that the ALJ’s decision to ascribe partial
weight to her testimony is supported by substantial evidence. Accordingly, this claim is without
merit.
C.

Step Four Analysis
Plaintiff alleges that the ALJ erred when he determined that she could perform her past

relevant work as a hotel clerk. She argues that the ALJ’s conclusion was based on a “misreading”
of the vocational expert’s testimony because the RFC findings were not consistent with the
hypothetical provided to the vocational expert. Specifically, Plaintiff highlights that the RFC
established that she could stand/walk for up to six hours in an 8-hour day, but the hypothetical
provided to the vocational expert assumed an individual who could stand/walk for up to four hours
in an 8-hour day. Thus, she claims, the ALJ’s reliance on the vocational expert’s testimony that

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she could perform past relevant work is erroneous as it is a misreading of the testimony regarding
her ability to perform the job.
If a claimant can perform her past relevant work, she is not disabled.

20 CFR

§ 404.1520(a)(4)(iv) (“At the fourth step, we consider our assessment of your residual functional
capacity and your past relevant work. If you can still do your past relevant work, we will find that
you are not disabled.”); see Wilson v. Comm’r v. Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004). The
claimant bears the burden at this step to prove she is unable to perform past relevant work. See
Wilson, 378 F.3d at 548.
In the instant matter, the vocational expert testified specifically that even considering
Plaintiff’s testimony and the overall RFC limitations, she would be able to perform her past
relevant work as a hotel clerk “as she performed it.” (Tr. 46). Although Plaintiff is correct in
noting that the hypothetical presented to the vocational expert differed slightly from the RFC, the
hypothetical was in fact more restrictive. It assumed an individual who could stand/walk up to
four hours in an 8-hour workday instead of six hours. However, even with the more restrictive
limitation, the vocational expert found that Plaintiff could perform past relevant work as she
previously performed it. Even assuming the slight discrepancy constituted error, Plaintiff cannot
prove any harm. See Siegrist v. Comm’r of Soc. Sec., No.14-14436, 2016 WL 859866, at *3 (E.D.
Mich. Feb. 17, 2016) (“[T]he burden of showing harm that an error is harmful normally falls upon
the party attacking the agency’s determination.” (quoting Shinseki v. Sanders, 556 U.S. 396, 409)
(2009)).
The ALJ relied upon the vocational expert’s testimony to determine that Plaintiff was able
to perform her prior work as she previously performed it. Even in light of the slight divergence
between the RFC and the hypothetical provided, the Court finds that substantial evidence supports

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the ALJ’s finding at step four. See Smith v. Halter, 307 F.3d 377, 378 (6th Cir. 2001) (vocational
expert testimony can provide substantial evidence where testimony is elicited in a response to a
hypothetical question that accurately sets forth claimant’s physical and mental limitations).
Finally, Plaintiff asserts that the other hypothetical posed to the vocational expert presented
an individual who was limited to sedentary work with the additional previously identified
limitations. She avers that because she turned 50 prior to the date of her hearing and more than
six months prior to the ALJ’s decision, she would have been disabled pursuant to the MedicalVocational Guidelines if she was limited to unskilled sedentary work.
The ALJ concluded that Plaintiff could perform past relevant work. Based on this
dispositive finding at step four, the analysis ends. See Colvin, 475 F.3d at 730. Accordingly, the
Court does not need to consider what the ALJ potentially could have decided at step five.
IV.

Conclusion
Based upon the above findings, Plaintiff’s Motion for Judgment on the Pleadings [Doc. 13]

is DENIED, and the Commissioner’s Motion for Summary Judgment [Doc. 15] is GRANTED.
This matter is dismissed for the reasons outlined herein.
SO ORDERED:
s/Clifton L. Corker
United States Magistrate Judge

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