Commons v. Social Security Administration, Commissioner of (JRG1)
Filing
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MEMORANDUM OPINION. Plaintiff's Motion for Judgment on the Pleadings [Doc.13] will be DENIED, the Commissioner's Motion for Summary Judgment [Doc. 15] will be GRANTED, and judgment will be entered AFFIRMING the Commissioner's decision. Signed by Magistrate Judge Christopher H Steger on 9/23/2019. (AML)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
THOMAS S. COMMONS
Plaintiff,
v.
ANDREW SAUL,
Commissioner of Social Security
Administration,
Defendant.
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Case No: 2:18-cv-62
Judge Christopher H. Steger
MEMORANDUM OPINION
Plaintiff Thomas Commons seeks judicial review under § 205(g) of the Social Security Act
("Act"), 42 U.S.C. § 405(g), from his denial by the Commissioner of the Social Security
Administration regarding his application for disability insurance benefits and supplemental
security income under Titles II and XVI of the Act, 42 U.S.C. §§ 401-34, 1381-83f. [See Doc. 1].
The parties consented to the entry of final judgment by a United States Magistrate Judge according
to 28 U.S.C. § 636(c), with an appeal to the Court of Appeals for the Sixth Circuit. [Doc. 12].
For reasons that follow, Plaintiff's Motion for Judgment on the Pleadings [Doc. 13] will be
DENIED, the Commissioner's Motion for Summary Judgment [Doc. 15] will be GRANTED, and
judgment will be entered AFFIRMING the Commissioner's decision.
I.
Procedural History
In November 2015, Plaintiff applied for disability insurance benefits and supplemental
security income under Title II of the Act, 42 U.S.C. §§ 401-434, alleging disability as of September
15, 2015. (Tr. 10, Doc. 8). Plaintiff's claims were denied initially as well as on reconsideration. As
a result, Plaintiff requested a hearing before an administrative law judge.
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In October 2017, ALJ Elizabeth Neuhoff heard testimony from Plaintiff and a vocational
expert, as well as argument from Plaintiff's attorney. The ALJ then rendered her decision, finding
that Plaintiff was not under a "disability" as defined in the Act. (Tr. 10-17).
Following the ALJ's decision, Plaintiff requested that the Appeals Council review his
denial; however, that request was denied. (Tr. 7). Exhausting his administrative remedies, Plaintiff
then filed his Complaint on April 18, 2018, seeking judicial review of the Commissioner's final
decision under § 405(g). [Doc. 1]. The parties filed competing dispositive motions, and this matter
is now ripe for adjudication.
II.
Findings by the ALJ
The ALJ made the following findings concerning her decision on Plaintiff's application for
benefits:
1. Plaintiff meets the insured status requirements of the Social Security Act
through December 31, 2020.
2. Plaintiff had not engaged in substantial gainful activity since September 15,
2015, the alleged onset date (20 C.F.R. §§ 404.1571 et seq. and 416.971 et.
seq.).
3. Plaintiff has the following severe impairments: diabetes mellitus with recent
diagnosis of peripheral neuropathy (20 C.F.R. § 404.1520(c) and
416.920(c)).
4. Plaintiff does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925, and 416.926).
5. Absent certain limitations, Plaintiff retained the residual-functional capacity
to perform medium work as defined in 20 C.F.R. §§ 404.1567(c) and
416.967(c).
6. Plaintiff is unable to perform any past relevant work (20 C.F.R. §§ 404.1565
and 416.965).
7. Plaintiff was born on December 26, 1955, and was 59 years old, which is
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defined as an individual with advanced age, on the alleged disability onset
date (20 C.F.R. §§ 404.1563 and 416.923).
8. Plaintiff has at least a high school education and can communicate in English
(20 C.F.R. §§ 404.1564 and 416.964). 1
9. Transferability of job skills is not material to the determination of disability
because the ALJ found that Plaintiff was not disabled regardless if he has
transferable job skills (SSR 82-41 and 20 C.F.R. Part 404, Subpart P,
Appendix 2).
10. Considering the Plaintiff's age, education, work experience, and residual
functional capacity, some jobs exist in significant numbers in the national
economy that Plaintiff can perform (20 C.F.R. §§ 404.1569, 404.1569(a),
416.969, and 416.969(a)).
11. Plaintiff has not been under a disability, as defined in the Social Security
Act, from September 15, 2015, through the date of the ALJ's decision (20
C.F.R. §§ 404.1520(g) and 416.920(g)).
(Tr. at 10-17).
III.
Standard of Review
This case involves an application for disability insurance benefits ("DIB"). An individual
qualifies for DIB if he: (1) is insured for DIB; (2) has not reached the age of retirement; (3) has
filed an application for DIB; and (4) is disabled. 42 U.S.C. § 423(a)(1).
The determination of disability under the Act is an administrative decision. To establish
disability under the Social Security Act, claimants must show that they are 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
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This finding was a clerical error by the ALJ because Plaintiff testified that he "completed the 8th grade and has not
obtained a GED but is able to read and write." (Tr. 14).
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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) 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 her former occupation, the burden shifts to the Commissioner to show that there
is work in the national economy which he can perform considering her 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 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.
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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., 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)).
IV.
Analysis
Plaintiff raises three issues: (1) whether the ALJ properly evaluated Plaintiff's subjective
complaints; (2) whether the ALJ failed to develop the record; and (3) whether substantial evidence
supports the ALJ's finding that Plaintiff is not disabled?
A.
Substantial Evidence and Plaintiff's Subjective Complaints
Plaintiff first contends that the ALJ "failed to properly weight the subjective allegations of
the Plaintiff regarding the limitations in his ability to perform work-related activities as a result of
his diabetes." [Doc. 14 at PageID #: 369].
The Court notes at the outset that Plaintiff's arguments about his own credibility generally
fall within the ALJ's discretion. See Ritchie v. Comm'r of Soc. Sec., 540 F. App'x 508, 511 (6th
Cir. 2013) (recognizing that the Sixth Circuit holds the ALJ's credibility findings to be virtually
"unchallengeable") (citations omitted). That is, the ALJ's findings on credibility "are to be
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accorded great weight and deference, particularly since an ALJ is charged with the duty of
observing a witness's demeanor and credibility." Walters, 127 F.3d at 531. Those findings,
however, must be supported by substantial evidence. Id. "[D]scounting credibility to a certain
degree is appropriate where an ALJ finds contradictions among the medical reports, claimant's
testimony, and other evidence." Id.
Plaintiff was diagnosed with diabetes, but the ALJ noted that physical examinations were
generally unremarkable with the exception of a mild sensory deficit in the lower extremities. (Tr.
15, 213, 217-18, 262, 290, 295, 308-09), and an eye examination revealed no evidence of diabetic
neuropathy (Tr. 15, 249). The ALJ also considered evidence that indicated medication and a
diabetic diet resulted in control of Plaintiff’s blood sugar levels. (Tr. 15, 213, 217-18, 262, 290,
295, 308-09). See Smith v. Comm’r of Soc. Sec. Admin., 564 F. App’x 758, 763 (6th Cir. 2014)
(citing Hardaway v. Secretary, 823 F.2d 922, 927 (6th Cir. 1987)) (explaining that evidence of
improvement in medical issues with use of prescription drugs supports denial of disability
benefits)); see also SSR 16-3p (“[R]ecord of any treatment and its success or failure, including
any side effects of medications.”).
The Court finds that Plaintiff's complaints related to the reliability of his subjective
complaints are within the ALJ's discretion. See Walters, 127 F.3d at 531 ("Discounting credibility
to a certain degree is appropriate where an ALJ finds contradictions among medical reports,
claimant's testimony, and other evidence."). See also Houston v. Sec'y of Health & Human Servs.,
736 F.2d 365, 367 (6th Cir. 1984) (upholding a denial of benefits when the "medical evidence
reflected that appellant's impairments were controlled with medication and were not seriously
disabling."). When objective evidence alone cannot establish a disability, the ALJ has the "power
and discretion to weigh all of the evidence and to resolve the significant conflicts in the
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administrative record." Walters, 127 F.3d at 531 (citing Bradley v. Sec'y of Health and Human
Servs., 862 F.2d 1224, 1227 (6th Cir. 1988). "Discounting credibility to a certain degree is
appropriate where an ALJ finds contradictions among the medical reports, claimant's testimony,
and other evidence." Id. at 531–32 (citing Bradley, 862 F.2d at 1227; cf. King v. Heckler, 742 F.2d
968, 974–75 (6th Cir. 1984) (noting the lack of substantial evidence for an adverse credibility
finding where the only reasonable conclusion supported by the evidence is that the claimant does
not possess the RFC to perform any gainful employment). The evidence regarding the severity of
Plaintiff's impairments is inconsistent and can support more than one reasonable conclusion.
Because the ALJ gave numerous reasons, supported by the record, for determining that the
Plaintiff's subjective allegations were not entirely credible, the Court will not second-guess the
ALJ's finding. See Ulman v. Comm'r of Soc. Sec., 693 F.3d 709, 713-14 (6th Cir. 2012) ("As long
as the ALJ cite[s] substantial, legitimate evidence to support his factual conclusions, we are not to
second-guess.").
B.
The ALJ's failure to order a consultative exam
As noted, the burden of proving disability lies with the claimant. 20 C.F.R. § 404.1512.
That, however, does not leave the ALJ without a corresponding duty. ALJ's have "the ultimate
responsibility for ensuring that every claimant receives a full and fair hearing . . . ." Lashley v.
Sec'y of Health & Human Servs., 708 F.2d 1048, 1051 (6th Cir. 1983) (citing Richardson v.
Perales, 402 U.S. 389, 411 (1971)). In light of the ALJ's full-and-fair hearing requirement, Plaintiff
asserts that "a consultative physical exam was necessary for a full and fair consideration of [his]
claim, and it was error for the Administrative Law Judge not to order such an exam in view of [ ]
Plaintiff's advanced age and serious medical problems." [Doc. 14 at PageID #: 368].
The ordering of a physical consultative exam is within the ALJ's discretion. The regulations
state that the agency might order a consultative examination when “the additional evidence needed
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is not contained in the records of your medical sources” or “the current severity of your impairment
is not established.” 20 C.F.R. §§ 404.1519a(b)(1), 416.919a(b)(1). When the record contains
sufficient evidence about an impairment, an ALJ does not abuse their discretion by declining to
obtain an additional assessment. See Culp v. Comm’r of Soc. Sec., 529 F. App’x 750, 751 (6th Cir.
2013); Robertson v. Comm’r of Soc. Sec., 513 F. App’x 439 (6th Cir. 2013) (finding because the
record contained test results, physicians’ notes, opinion evidence from multiple physicians, and
lacked any significant inconsistencies in the evidence, the ALJ was not obligated to order a
consultative examination with a cardiologist or obtain additional medical records.).
Here, the Court finds that the record was adequately developed to make a fully-and-fairly
informed decision. It contains contemporaneous treatment and exam records from the relevant
period regarding Plaintiff's medical impairments (See, e.g. Tr. 212-331). Medical evidence from
the relevant period showed a lack of objective disabling limitations and that Plaintiff’s diabetes
was controlled with medication and diet management. (Tr. 213, 217-18, 249, 262-63, 290-92, 29597, 308-09). Further development was not necessary or appropriate, and the ALJ did not abuse her
discretion by failing to order an additional physical consultative exam.
C.
The ALJ's Clerical Error
Plaintiff next contends that substantial evidence does not support the ALJ's decision
because the ALJ erroneously mischaracterized Plaintiff's educational attainment. That is, in her
finding, under 20 C.F.R. § 404.1564, the ALJ listed that Plaintiff "has at least a high school
education . . . ." (Tr. 16). Previously in her decision, however, the ALJ noted that Plaintiff testified
that "he completed 8th grade and has not obtained a GED but is able to read and write. (Tr. 14).
The latter statement is true—Plaintiff has only an eighth-grade education and has not obtained a
GED. Plaintiff argues that the ALJ's clerical error undermines any finding of substantial evidence.
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The Court finds that Plaintiff's argument lacks merit because the ALJ's misstatement is a
clerical error that has no bearing on the analysis. See Powers v. Comm'r of Soc. Sec., 195 F. App'x.
407, 412–413 (6th Cir. 2006) (unpublished) (omissions in an ALJ's formal findings do not
constitute reversible error if intended meaning may be discerned from text of decision and the VE's
testimony). Alternatively, the alleged error is harmless because a remand to allow the ALJ to revise
her holding would not change the ALJ's ultimate finding. See Caldwell v. Barnhart, 261 F. App'x
188, 190 (11th Cir. 2008) (unpublished) (“When . . . an incorrect application of the regulations
results in harmless error because the correct application would not contradict the ALJ's ultimate
findings, the ALJ's decision will stand.”) (citing Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir.
1983).
Plaintiff failed to identify how this misstatement impacted the ALJ's finding. On the one
hand, 20 C.F.R. § 404.1564(b)(3) categorizes an eighth-grade education as "limited education,"
to wit:
Limited education means ability in reasoning, arithmetic, and language skills, but
not enough to allow a person with these educational qualifications to do most of the
more complex job duties needed in semi-skilled or skilled jobs. We generally
consider that a 7th grade through the 11th grade level of formal education is a
limited education.
20 C.F.R. § 404.1564(b)(3). On the other hand, § 404.1564(b)(4) defines "High school education
and above[,]" which are the "abilities in reasoning, arithmetic, and language skills acquired through
formal schooling at a 12th grade level or above. We generally consider that someone with these
educational abilities can do semi-skilled through skilled work." 20 C.F.R. § 404.1564(b)(4).
Plaintiff has failed to demonstrate how being classified with a "High School Education and Above"
rather than "Limited Education" adversely impacted the ALJ's finding. And "issues which are
'adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation,
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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)). As a result, the Court finds,
alternatively, that Plaintiff waived argument as to the ALJ's clerical error.
V.
Conclusion
Having reviewed the administrative record and the parties' briefs, Plaintiff's Motion for
Judgment on the Pleadings [Doc. 13] will be DENIED, the Commissioner's Motion for
Summary Judgment [Doc. 15] will be GRANTED, and the decision of the ALJ will be
AFFIRMED. Judgment will be entered in favor of the Defendant.
ENTER.
/s/ Christopher H. Steger
UNITED STATES MAGISTRATE JUDGE
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