Van Der Veer v. Social Security Administration
Filing
22
MEMORANDUM OPINION OF THE COURT & ORDER: The Court having found no legal error on the part of the ALJ and that his decision is supported by substantial evidence, the Acting Commissioner's final decision is AFFIRMED. Accordingly, IT IS ORDERED t hat Plaintiff's motion for judgment on the record (DE 16) be, and the same hereby is, DENIED. A separate judgment in conformity herewith shall this date be entered. Signed by District Judge Joseph M. Hood on 6/29/2018. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
COLUMBIA DIVISION
LISA MARIE VAN DER VEER,
)
)
Plaintiff,
)
)
V.
)
)
)
Commissioner of Social Security, )
)
Defendant.
)
Civil No. 1:16-CV-046
MEMORANDUM OPINION AND ORDER
****
to
Plaintiff Lisa Marie Van Der Veer brought this action pursuant
42
U.S.C.
§
405(g)
to
obtain
judicial
review
of
an
administrative decision of the Commissioner of Social Security
denying her claims for disability insurance benefits (DIB) and
supplemental security income (SSI).
The Court, having reviewed
the record, will AFFIRM the Commissioner’s decision as it is
supported by substantial evidence.
I.
Judicial review of the Commissioner’s decision is limited to
determining whether it is supported by substantial evidence and
was made pursuant to proper legal standards.
Cutlip v. Sec’y of
Health
(6th
&
Human
Servs.,
25
F.3d
284,
286
Cir.
1994).
“Substantial evidence” is defined as “more than a scintilla of
evidence but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support
1
a conclusion.”
resolve
Id.
conflicts
determinations.
Id.
Courts are not to conduct a de novo review,
in
the
evidence,
or
make
credibility
Rather, we are to affirm the Commissioner’s
decision, provided it is supported by substantial evidence, even
if we might have decided the case differently.
See Her v. Comm’r
of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).
The ALJ, in determining disability, conducts a five-step
analysis.
See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474
(6th Cir. 2003).
Step One considers whether the claimant is still
performing substantial gainful activity; Step Two, whether any of
the claimant’s impairments are “severe”; Step Three, whether the
impairments meet or equal a listing in the Listing of Impairments;
Step Four, whether the claimant can still perform his past relevant
work; and Step Five, whether significant numbers of other jobs
exist in the national economy which the claimant can perform.
As
to the last step, the burden of proof shifts from the claimant to
the Commissioner.
Id.; see also Preslar v. Sec’y of Health & Human
Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).
II.
On August 4, 2010, Plaintiff filed her applications for DIB
and SSI alleging disability as of November 15, 2006 (Tr.96, 239
and 246).
a
She alleged disability due t o a f r a c t u r e d n e c k ,
ruptured
disc
in
her
neck,
2
lupus,
fatigue,
joint
pain,
depression,
syndrome,
(Tr.
275).
migraines,
gastritis,
gastric
irritable
prolapse,
and
bowel
nausea
Plaintiff’s claims were denied initially and on
reconsideration and Plaintiff then requested a hearing on the
matter. Administrative Law Judge (“ALJ”) Marty S. Turner conducted
a hearing, but thereafter denied Plaintiff’s claims (Tr.96-103).
On September 22, 2015, the Appeals Council remanded the case to
the ALJ for further evaluation (Tr. 111-13).
ALJ Turner conducted
a supplemental hearing, but again found Plaintiff not disabled
(Tr. 17-28). On April 13, 2016, the Appeals Council declined
Plaintiff’s request for review (Tr. 1-5), Thus, ALJ Turner’s second
decision became the final agency action for purposes of judicial
review.
This appeal followed and the case is ripe for review
pursuant to 42 U.S.C. § 405(g)1.
III.
After careful consideration of the entire record, ALJ Turner
found that Plaintiff’s severe impairment was depression (Tr. 15).
However,
he
determined
that
Plaintiff’s
fibromyalgia,
carpal
tunnel syndrome, and back, neck, and wrist pain were not severe
(Tr. 20-22). The ALJ also found that she did not have an impairment
1
The matter is before the Court on Plaintiff’s motion for judgment
on the record (DE 16 and 17).
The acting commissioner has
responded (DE 20). Plaintiff has not filed a reply.
3
or combination of impairments listed in or medically equal to one
contained in 20 C.F.R. part 404, subpart P, appendix 1 (Tr. 2224).
The ALJ considered Plaintiff’s claims and concluded that
Plaintiff’s allegations of disabling symptoms were not supported
by the record based on the medical opinions, her medical treatment,
and the medical evidence (Tr. 20-26).
The ALJ determined that
Plaintiff retained the residual functional capacity (“RFC”) to
perform work at all exertional levels (Tr. 24). Plaintiff could
perform simple one-three step instructions with occasional changes
in a work setting and occasional interaction with the general
public (Tr. 24). Relying on vocational expert testimony, the ALJ
concluded that Plaintiff could perform other work existing in the
significant numbers, including work as an assembler, a packer, a
cleaner, a laundry worker, and a marker (Tr. 27).
the ALJ found Plaintiff not disabled (Tr. 28).
Consequently,
The question is
whether substantial evidence supports this finding.
The short
answer is yes.
IV.
For
purposes
of
her
application
for
DIB,
Plaintiff
was
required to establish that she was disabled prior to December 31,
20112 (Tr. 18-19).
To be eligible for disability benefits under
2
In order to meet the requirements for insured status, an
individual is required to have 20 quarters of coverage in a 40quarter period ending with the first quarter of disability. See 42
4
Title II, Plaintiff must establish that she became disabled prior
to the expiration of her insured status on December 31, 2011.
See
20 C.F.R. §§ 404.130, 404.131; Higgs v. Bowen, 880 F.2d 860 (6th
Cir. 1988).
A non-disabling condition that later develops into a
disabling condition after the expiration of a claimant’s insured
status cannot be the basis for an award of disability benefits
under Title II. See Casey v. Sec’y of Health & Human Servs., 987
F.2d 1230, 1233 (6th Cir. 1993).
Plaintiff argues that that the ALJ improperly evaluated her
impairments
in
finding
that
her
fibromyalgia,
carpal
tunnel
syndrome, and prior neck fracture were not severe (Tr. 20-22) (DE
17 at 7-8).
In this case, the ALJ properly found the impairments,
singly and in combination, did not impose significant physical
work-related limitations (Tr. 20-22). Plaintiff has the burden
of showing that the impairment is severe and that it met the 12month durational requirements of the Act.
See Harley v. Comm’r
of Social Sec., 485 F. App’x 802, 803 (6th Cir. 2012).
The
impairment must significantly limit Plaintiff’s ability to perform
U.S.C. §§ 416(i)(3)(B) and 423(c)(1)(B); 20 C.F.R. § 404.130
(2016). To be entitled to benefits under Title II, Plaintiff must
establish that she was disabled prior to the date her insured
status expired, December 31, 2011 (Tr. 18-19). Id. Thus, the
relevant time period for consideration of Plaintiff’s claim is
from November 15, 2006, until December 31, 2011.
5
basic work activities.
Id.; 20 C.F.R. §§ 404.1509, 404.1521,
416.909, 416.921,
In assessing whether Plaintiff’s impairments significantly
limited her ability to perform basic work activities, the ALJ
considered the record as a whole, including Plaintiff’s subjective
complaints (Tr. 20-26).
Contrary to Plaintiff’s argument (DE 17
at 9), the ALJ properly determined that Plaintiff’s allegations
regarding her limitations were not supported by the record (Tr.
22,
24).
The
ALJ
properly
found
Plaintiff’s
allegations
inconsistent with the record as a whole, including the medical
opinions, her medical treatment, and the medical evidence (Tr. 2026).
The
ALJ’s
consideration
of
the
subjective
aspects
of
Plaintiff’s complaints comported with the regulations at 20 C.F.R.
§§ 404.1529, 416.929 (2016).
complaints
of
pain,
claimant’s
daily
an
ALJ
activities;
To analyze a claimant’s subjective
examines
2)
the
the
following:
duration,
1)
the
frequency
and
intensity of pain; 3) dosage, effectiveness, and side effects of
medication;
4)
precipitating
and
aggravating
factors;
and
5)
functional restrictions. See 20 C.F.R. §§ 404.1529, 416.929. An
ALJ’s determination is entitled to “great weight and deference”
and the review is limited to determining whether the ALJ’s reasons
for discrediting the allegations are reasonable and supported by
substantial evidence in the record. See Schmiedebusch v. Comm’r of
Soc.
Sec.,
536
F.
App’x
637
6
(6th
Cir.
2013).
Factual
determinations rest with the ALJ, and “[a]s long as the ALJ cite[s]
substantial,
legitimate
evidence
to
support
his
factual
conclusions, we are not to second-guess.” Ulman v. Comm’r of Soc.
Admin., 693 F.3d 709, 713-14 (6th Cir. 2012).
In
evaluating
Plaintiff’s
impairments,
the
ALJ
weighed the medical opinions in the record (Tr. 21-22).
C.F.R. §§ 404.1529(c)(3)(vii); 416.929(c)(3)(vii).
properly
See 20
In November
2010, Daniel Rinehart, M.D., performed a consultative examination
and
opined
that
Plaintiff
had
limitations (Tr. 22, 503-05).
provided
an
opinion
that
no
impairment-related
physical
In May 2012, Angela Joynes, M.D.,
Plaintiff’s
physical
impairments
prevented her from performing tasks with light or moderate exertion
(Tr. 21, 547).
In November 2015, Louise Ledbetter, M.D., opined
that Plaintiff could lift less than 10 pounds occasionally and
frequently, sit for less than 2 hours in an 8-hour workday, and
stand/walk for less than 2 hours in an 8-hour workday (Tr. 21, 25,
649-51).
Plaintiff could never twist, stoop, crouch, reach, or
feel (Tr. 650).
State agency medical consultants’ reviewed the
medical records and opined that Plaintiff did not have a severe
physical impairment (Tr. 22, 517-20, 542). It is the function of
the ALJ to resolve the conflicts between the medical opinions.
See Justice v. Comm’r of Soc. Sec., 515 F. App’x 583, 588 (6th
Cir. 2013) (“In a battle of the experts, the agency decides who
wins. The fact that Justice now disagrees with the ALJ’s decision
7
does not mean that the decision is unsupported by substantial
evidence.”).
The ALJ properly gave great weight to the opinions of Dr.
Rinehart and the state agency medical consultants (Tr. 22). In
November 2010, Dr. Rinehart performed a consultative examination
(Tr. 22, 503-05). Plaintiff could get on and off the examination
table without difficulty and heel and toe walk, and she exhibited
full ranges of motion and full strength (Tr. 505). Dr. Rinehart
concluded
limitations
that
(Tr.
Plaintiff
505).
had
The
no
ALJ
impairment-related
found
Dr.
Rinehart’s
physical
opinion
consistent with the medical evidence and gave it great weight (Tr.
22).
Following the consultative examination, in December 2010,
Roslynn Webb, M.D., a state agency medical consultant, reviewed
the medical records and found that Plaintiff did not have a severe
physical impairment (Tr. 22, 517-20). See Gustafson v. Comm’r of
Soc. Sec., 550 F. App’x 288, 289 (6th Cir. 2014) (finding that the
ALJ may consider the opinions of non-examining state agency medical
consultants); Rudd v. Comm’r of Soc. Sec., 531 F. App’x 719, 729
(6th Cir. 2013)(citing Barker v. Shalala, 40 F.3d 789, 794 (6th
Cir. 1994)); Social Security Ruling (“SSR”) 96-2p (finding of fact
and opinions by non-examining State agency doctors is expert
evidence that must be considered).
8
In April 2011, Nathaniel
Robinson, M.D., reviewed the medical records and affirmed Dr.
Webb’s opinion that Plaintiff did not have a severe impairment
(Tr. 22, 542). The ALJ found the state agency medical consultants’
opinion
consistent
treatment
records
with
(Tr.
the
record,
22).
including
Consistent
with
the
subsequent
these
medical
opinions, the ALJ properly found that Plaintiff did not have a
severe impairment (Tr. 20-22, 517-20, 542).
Plaintiff
argues
that
the
ALJ
improperly
evaluated
Dr.
Joynes’ opinion that Plaintiff’s physical impairments prevented
light or moderate exertional tasks
3(DE
17 at 4-6).
at 4-6.
However, the ALJ properly considered Dr. Joynes’ opinion, and found
it inconsistent with he record and entitled to little weight for
several reasons (Tr. 21, 24, 543).
First, the ALJ properly
recognized that Dr. Joynes was a treating physician, but had not
seen Plaintiff between August 2009 and May 2012 (Tr. 21, 24).
20 C.F.R. §§ 404.1527(c)(1)-(2), 416.927(c)(1)-(2).
See
Second, the
ALJ properly found Dr. Joynes’ opinion inconsistent with the
treatment notes and Plaintiff’s conservative treatment (Tr. 21).
3
Plaintiff argues that the ALJ failed to comply with the Appeals
Council’s September 2015 remand order. See Pl.’s Br. at 4-6. As
discussed above, the ALJ properly evaluated Dr. Joynes’ opinion in
accordance with the remand order (Tr. 21, 24). However, even
assuming Plaintiff’s argument, this would not be a basis for remand
as this Court’s jurisdiction is limited to whether the ALJ’s
decision is supported by substantial evidence. Further, Plaintiff
made the same argument to the Appeals Council before they denied
her request for review (Tr. 2, 8-10).
9
See 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4); Temples v. Comm’r
of Soc. Sec., 515 F. App’x 460, 462 (6th Cir. 2013) (“...treatment
notes did not demonstrate a basis for concluding that Temples had
marked to extreme limitations in numerous areas of work-related
mental functioning…” and were “…contradicted by other evidence in
the record…”).
Contrary to Dr. Joynes’ suggestion that Plaintiff
could not perform light or moderate exertion, Plaintiff retained
a normal gait, normal heel and toe walking, full ranges of motion,
full strength, and intact sensations (Tr. 20-21, 370, 423, 426,
428-29, 431, 434, 436, 505, 554, 560-61, 599, 603, 611). Plaintiff
claims that the ALJ failed to identify these inconsistencies when
evaluating the opinion, but the ALJ is not required to do so.
See
Crum v. Comm’r of Soc. Sec., No. 15-3244, 2016 WL 4578357, at *7
(6th Cir. Sept. 2, 2016) (“No doubt, the ALJ did not reproduce the
list of these treatment records a second time when she explained
why Dr. Bell's opinion was inconsistent with this record.
But it
suffices that she listed them elsewhere in her opinion.”) (citing
Forrest v. Comm’r of Soc. Sec., 591 F. App’x 359, 366 (6th Cir.
2014)).
The
ALJ
also
found
inconsistent
with
Plaintiff’s
conservative treatment (Tr. 21). See Kepke v. Comm’r of Soc. Sec.,
636 F. App’x 625, 630 (6th Cir. 2016) (“The ALJ noted that the
records indicate Kepke received only conservative treatment for
her
ailments,
a
fact
which
constitutes
a
“good
reason”
for
discounting a treating source opinion.”); Lester v. Soc. Sec.
10
Admin., 596 F. App’x 387, 389 (6th Cir. 2015).
As discussed in
more detail below, Plaintiff had significant gaps in treatment and
declined more aggressive forms of treatment (Tr. 21-22).
Based on
the inconsistencies within the record and Dr. Joynes’ lack of
recent medical treatment, the ALJ properly gave Dr. Joynes’ opinion
little weight (Tr. 21).
The ALJ also properly evaluated Dr. Ledbetter’s opinion and
found it entitled to no weight (Tr. 21, 25).
In November 2015,
Dr. Ledbetter opined that Plaintiff could lift less than 10 pounds
occasionally and frequently, sit for less than 2 hours, and
stand/walk for less than 2 hours (Tr. 21, 25, 649). Plaintiff could
never twist, stoop, crouch, reach, or feel (Tr. 650). In weighing
the opinion, the ALJ properly considered Dr. Ledbetter’s treatment
history
with
Plaintiff
(Tr.
21,
25).
404.1527(c)(1)-(2), 416.927(c)(1)-(2).
See
20
C.F.R.
§§
Dr. Ledbetter first saw
Plaintiff in June 2015, six months prior to providing the medical
opinion (Tr. 21, 613). She saw Plaintiff five times during those
six months (Tr. 597, 601, 605, 609, 613).
However, the doctor did
not perform a physical examination on two of those visits (Tr.
607, 613).
with
the
The ALJ also properly found the opinion inconsistent
record
(Tr.
21).
See
20
C.F.R.
§§
404.1527(c)(4),
416.927(c)(4); Temples, 515 F. App’x at 462 (“...treatment notes
did not demonstrate a basis for concluding that Temples had marked
11
to extreme limitations in numerous areas of work-related mental
functioning…” and were “…contradicted by other evidence in the
record…”).
First, the ALJ noted an internal inconsistency in Dr.
Ledbetter’s opinions (Tr. 25).
Dr. Ledbetter indicated that
Plaintiff had an extreme limitation in her ability to make simple
decisions, but somehow could manage any awarded benefits in her
own
best
interest
(Tr.
646,
648).
There
is
no
reasonable
explanation how an individual with extreme limitations in making
simple decisions could manage their own benefits. This discrepancy
undermines Dr. Ledbetter’s opinions.
Second, the ALJ found Dr.
Ledbetter’s opinion inconsistent with the record as a whole (Tr.
21).
While Dr. Ledbetter suggested that Plaintiff had extreme
limitations where she was bedridden for more than four hours in an
eight-hour workday, the doctor’s objective findings were normal
(Tr. 649).
The doctor’s physical findings show that Plaintiff had
a normal gait, full ranges of motion, full strength, intact
sensation, and no edema, tenderness, or spasms (Tr. 599, 603, 611).
Contrary to the doctor’s suggestion that Plaintiff had memory loss,
her memory remained intact (Tr. 599, 603, 610, 647, 650). As such,
the ALJ properly found Dr. Ledbetter’s opinion based on Plaintiff’s
subjective complaints rather than the objective evidence (Tr. 21).
See Griffith v. Comm’r of Soc. Sec., 582 F. App’x 555, 564 (6th
Cir. 2014) (citing 20 C.F.R. § 416.927(b)) (“The ALJ is not
required to simply accept the [opinion] of a medical examiner based
12
solely on the claimant’s self-reports of symptoms, but instead is
tasked with interpreting medical opinions in light of the totality
of the evidence.”); Bell v. Barnhart, 148 F. App’x 277, 285 (6th
Cir. 2014) (declining to give weight to a doctor’s opinion that
was only supported by the claimant’s reported symptoms). Dr.
Ledbetter also suggested that Plaintiff’s limitations began in
2006, but she did not meet Plaintiff until 2015 and she cited to
no objective evidence from 2006 (Tr. 21, 648, 651). The suggested
limitations were inconsistent with Dr. Rinehart’s consultative
examination after that date (Tr. 503-05).
properly
found
Dr.
Ledbetter’s
opinion
Accordingly, the ALJ
inconsistent
with
the
record and entitled to no weight (Tr. 21, 25).
In addition to the medical opinions, the ALJ properly weighed
Plaintiff’s treatment for her allegedly disabling impairments (Tr.
21-22).
See Helm v. Comm’r of Soc. Sec., 405 F. App’x 997, 1001
(6th Cir. 2011) (Modest treatment is “inconsistent with a finding
of
total
disability.”).
Plaintiff
alleged
disability
since
November 2006, but received no treatment between April 2007 and
February 2008 (Tr. 21-22, 370, 446).
until September 2008 (Tr. 376).
She then sought no treatment
Plaintiff fractured her cervical
spine in March 2009, but the fracture did not require surgery and
was treated with a collar (Tr. 378, 384, 381, 423).
Plaintiff
declined a physical therapy referral for her neck pain (Tr. 423).
She subsequently received no treatment between August 2009 and May
13
2012 (Tr. 543).
She then had no treatment for three years until
January 2015 (Tr. 548-49).
Plaintiff sought treatment once for
carpal tunnel syndrome, but declined surgery and an injection (Tr.
21, 47, 550-53).
(Tr. 21-22).
She got no further treatment for the impairment
The record shows Plaintiff had no health insurance,
but there is no indication that Plaintiff was ever denied medical
treatment because of financial reasons (Tr. 68).
See Goff v.
Barnhart, 421 F.3d 785, 793 (8th Cir. 2005) (“However, there is no
evidence Goff was ever denied medical treatment due to financial
reasons.”).
effects.
Plaintiff
suggests
that
she
suffered
from
side
However, as she had significant gaps in treatment when
she received no medication, so she could not have suffered from
side effects (Tr. 504, 508).
Further, the medical records do no
document any ongoing side effects (Tr. 296, 313).
See Essary v.
Comm’r of Soc. Sec., 114 F. App’x 662, 665 (6th Cir. 2004)
(“Although Essary testified that she suffered from dizziness and
drowsiness as a result of her medications, Essary’s medical records
make no indication that Essary reported such side effects to any
of her physicians.”); Hopkins v. Comm’r of Soc. Sec., 96 F. App’x
393, 395 (6th Cir. 2004) (alleged medication side effects of
drowsiness, nausea, and blurred vision “not documented in the
record”).
Plaintiff’s conservative treatment was inconsistent
with the existence of a severe physical impairment (Tr. 21-22).
14
Moreover, when Plaintiff did seek treatment, the medical
records showed that Plaintiff’s allegations were inconsistent with
the medical evidence (Tr. 20-21).
See Kirkland v. Comm’r of Soc.
Sec., 528 F. App’x 425, 427 (6th Cir. 2013) (quoting 20 C.F.R. §
404.1529); Rudd, 531 F. App’x at 726-27 (citations omitted).
Plaintiff
alleged
significant
lifting,
standing,
and
walking
limitations, but the physical examinations revealed a normal gait,
normal heel and toe walking, full ranges of motion, full strength,
and intact sensations (Tr. 20-21, 370, 423, 426, 428-29, 431, 434,
436, 505, 554, 560-61, 599, 603, 611).
Contrary to her complaints
of disabling pain, Plaintiff appeared in no acute distress (Tr.
423, 426, 428, 433, 435, 550).
The ALJ also properly evaluated
Plaintiff’s fibromyalgia under SSR 12-2p, and found that there
were no tender point testing necessary to establish the impairment
as a medically determinable impairment (Tr. 20).
Plaintiff claims
that the January 2015 cervical MRI supports a severe impairment
(Tr. 21) (DE 17 at 8).
However, the January 2015 MRI shows that
Plaintiff’s condition had not changed since March 2009 (Tr. 409,
427, 548-49). The state agency medical consultants’ reviewed the
March 2009 MRI and found that it did not support a finding of a
severe physical impairment (Tr. 520). Plaintiff also argues that
the ALJ failed to consider her alleged fatigue, but she made
inconsistent reports and denials of fatigue depending on the
medical provider (Tr. 433, 435, 550, 559). As such, the ALJ
15
properly
found
the
objective
evidence
inconsistent
with
Plaintiff’s allegations of disability (Tr. 14- 15).
The ALJ addressed other inconsistencies in the record (Tr.
21-22).
This was proper.
See Johnson v. Comm’r of Soc. Sec., 535
F. App’x 498, 505 (6th Cir. 2013) (The ALJ observed that Johnson’s
answers to his disability questionnaire in June 2007 “described
greater
functioning”
than
did
his
hearing
testimony…).
For
example, the ALJ properly found Plaintiff’s description of her
daily activities inconsistent with her allegations (Tr. 21-22).
See Temples, 515 F. App’x at 462 (“Further, the ALJ did not give
undue consideration to Temples’ ability to perform day-to-day
activities.
Rather, the ALJ properly considered this ability as
one
in
factor
credible.”).
determining
whether
Temples’
testimony
was
Here, Plaintiff retained the ability to maintain her
personal care, care for pets, prepare meals, clean, do laundry, do
yard work, drive, shop, and read (Tr. 290-93, 427, 433, 510-11).
The medical records show that Plaintiff cut her leg while using a
chainsaw and her finger while weed eating (Tr. 21-22, 49, 433,
554).
The use of a chainsaw and a weed eater is inconsistent with
her alleged limitations (Tr. 21-22).
Plaintiff’s
daily
activities
in
impairments (Tr. 21-22).
16
The ALJ properly considered
evaluating
her
physical
Plaintiff points out that the ALJ’s most recent assessment of
the severity of her impairments conflicts with his first decision
where he determined that Plaintiff’s severe impairments included
status post neck fracture, arthritis, and fibromyalgia (Tr. 98)
(DE
18
at
8).
In
that
earlier
decision,
based
on
those
impairments, the ALJ found that Plaintiff could perform a full
range of medium work (Tr. 99) (DE 18 at 8).
True, but since the
2012 decision, the ALJ had three years of additional medical
records
that
the
ALJ
impairments (Tr. 20-22).
considered
in
evaluating
Plaintiff’s
As discussed above, the medical records
show that Plaintiff did not require ongoing medical treatment and
the medical evidence did not support the finding of a severe
impairment (Tr. 20-22).
Further, even assuming that the ALJ erred
in not finding these impairments severe and should have found
Plaintiff capable of medium work, it would not support remand.
The vocational expert testified to the existence of medium and
light work existing in the national economy (Tr. 56-57).
found Plaintiff could perform these jobs (Tr. 27).
The ALJ
Remanding the
case to the ALJ to limit Plaintiff to medium or light work would
serve no purpose as the ALJ already found Plaintiff capable of
medium and light jobs (Tr. 27).
Finally, Plaintiff argues that the ALJ failed to consider the
seven strength demands required by SSR 96-8p.
(DE 18 at 8-9).
While SSR 96-8p requires a “function-by-function evaluation to
17
determine a claimant’s RFC, case law does not require the ALJ to
discuss those capacities for which no limitation is alleged.”
Delgado v. Comm’r of Soc. Sec., 30 F. App’x 542, 547 (6th Cir.
2002) (internal citations and quotation marks omitted).
Further,
“[a]lthough a function-by-function analysis is desirable, SSR 968p does not require ALJs to produce such a detailed statement in
writing,” as there is a difference “between what an ALJ must
consider and what an ALJ must discuss in a written opinion.”
(internal citations and quotation marks omitted).
Id.
“SSR 96-8p
clearly states that the ALJ must consider each function separately;
it
does
not
state
that
the
ALJ
must
discuss
each
separately in the narrative of the ALJ’s decision.”
F. App’x at 547-48.
function
Delgado, 30
In the instant case, the ALJ properly
evaluated Plaintiff’s physical impairments and found that they did
not impose more than minimal limitations in her ability to perform
the basic work activities (Tr. 20-22). The ALJ properly concluded
that Plaintiff could perform work at all exertional levels (Tr.
24).
The ALJ properly considered the seven strength demands in
finding the impairments not severe (Tr. 20, 22, 24).
After engaging in the above analysis, the ALJ incorporated
into Plaintiff’s RFC the impairments and restrictions supported by
the record, and found Plaintiff capable of a range of simple work
with occasional work setting changes and interaction with the
general public (Tr. 24).
The burden lies with the claimant to
18
prove that she is disabled.
See Foster v. Halter, 279 F.3d 348,
353 (6th Cir. 2001) (citations omitted). Where, as here, Plaintiff
demonstrates that she can no longer do her past work, “[t]he burden
shifts to the Commissioner at this fifth step to establish the
claimant’s ability to do other work.” Id. (citations omitted). The
vocational
expert
testified
in
response
to
a
hypothetical
question, which incorporated the same limitations as the RFC, that
such an individual could perform medium and light work as an
assembler, a packer, a cleaner, a laundry worker, and a marker
(Tr. 27, 55-57).
See Ealy v. Comm’r of Soc. Sec., 594 F.3d
504, 512-13 (6th Cir. 2010).
must
set
forth
impairments,
it
Although the hypothetical question
with
reasonable
need
only
precision
include
those
limitations found supported by the record.
the
claimant’s
impairments
and
See Winslow v. Comm’r
of Soc. Sec., 566 F. App’x 418, 421 (6th Cir. 2014) (“The record
reflects, however, that the hypothetical questions were proper
because the ALJ incorporated all of the functional limitations
that
she
deemed
credible.”);
Justice,
515
F.
App’x
at
588
(citations omitted). As discussed above, the ALJ incorporated the
limitations supported by the record into the RFC and corresponding
hypothetical question (Tr. 24, 27, 55-57).
decision is supported by substantial evidence.
19
As such, the ALJ’s
In
summary,
the
ALJ
properly
included
all
limitations
supported by the record into Plaintiff’s RFC (Tr. 24).
The
vocational expert testified that an individual with Plaintiff’s
limitations could perform work existing in significant number in
the national economy (Tr. 27, 55- 57).
Therefore, the ALJ
properly concluded that Plaintiff was capable of other work and,
thus, not disabled (Tr. 27-28).
V.
The Court having found no legal error on the part of the ALJ
and that his decision is supported by substantial evidence, the
Acting Commissioner’s final decision is AFFIRMED.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for judgment on the
record (DE 16) be, and the same hereby is, DENIED.
A separate judgment in conformity herewith shall this date be
entered.
This the 29th day of June, 2018.
Sitting by Designation.
20
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