Maye v. Social Security Administration
Filing
14
REPORT AND RECOMMENDATION re 12 First MOTION for Judgment on the Record. Signed by Magistrate Judge John S. Bryant on 9/14/2015. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
TIMOTHY ALLEN MAYE
v.
SOCIAL SECURITY ADMINISTRATION
To:
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)
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)
)
No. 3:14-1615
Judge Campbell/Bryant
The Honorable Todd J. Campbell, District Judge
REPORT AND RECOMMENDATION
This is a civil action filed pursuant to 42 U.S.C. §§ 405(g) and 1383(c), to
obtain judicial review of the final decision of the Social Security Administration (“SSA” or
“the Administration”) denying plaintiff’s applications for disability insurance benefits and
supplemental security income, as provided under Titles II and XVI of the Social Security Act.
The case is currently pending on plaintiff’s motion for judgment on the administrative record
(Docket Entry No. 12), to which defendant has responded (Docket Entry No. 13). Upon
consideration of these papers and the transcript of the administrative record (Docket Entry
No. 10),1 and for the reasons given below, the undersigned recommends that plaintiff’s
motion for judgment be DENIED and that the decision of the SSA be AFFIRMED.
I. Introduction
Plaintiff filed his applications for benefits on December 8, 2010, alleging
disability onset as of November 18, 2010. (Tr. 11) His applications were denied at the initial
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Referenced hereinafter by page number(s) following the abbreviation “Tr.”
and reconsideration stages of state agency review. Plaintiff subsequently requested de novo
review of his case by an Administrative Law Judge (ALJ). The case came to be heard by the
ALJ on January 10, 2013, when plaintiff appeared with counsel and gave testimony. (Tr. 2751) Testimony was also received from an impartial vocational expert. At the conclusion of
the hearing, the ALJ took the matter under advisement until February 20, 2013, when he
issued a written decision finding plaintiff not disabled. (Tr. 11-20) That decision contains
the following enumerated findings:
1.
The claimant meets the insured status requirements of the Social Security Act
through December 31, 2015.
2.
The claimant has not engaged in substantial gainful activity since March 15,
2009, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3.
The claimant has the following severe impairments: hypertension, hepatitis C,
partial amputations of the right great toe and second toe, tinnitus, hernia, and
depression (20 CFR 404.1520(c) and 416.920(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,
404.1526, 416.920(d), 416.925 and 416.926).
[5.]
After careful consideration of the entire record, I find that the claimant has
the residual functional capacity to perform medium work as defined in 20 CFR
404.1567(c) and 416.967(c) except the claimant can only frequently balance,
stoop, kneel, crouch, crawl, and climb ramps or stairs; cannot climb ladders,
ropes, or scaffolds; and cannot work at unprotected heights or around
unguarded moving machinery. He can perform simple, routine, and repetitive
tasks with detailed, but not complex instructions and with gradual and
infrequent workplace changes.
[6.]
The claimant is unable to perform any past relevant work (20 CFR 404.1565
and 416.965).
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[7.]
The claimant was born on November 20, 1953 and was 56 years old, which is
defined as an individual of advanced age, on the alleged disability onset date
(20 CFR 404.1563 and 416.963).
[8.]
The claimant has a limited education and is able to communicate in English
(20 CFR 404.1564 and 416.964).
[9.]
Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding
that the claimant is “not disabled,” whether or not the claimant has
transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P,
Appendix 2).
[10.]
Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR 404.1569,
404.1569(a), 416.969, and 416.969(a)).
[11.]
The claimant has not been under a disability, as defined in the Social Security
Act, from November 18, 2010, through the date of this decision (20 CFR
404.1520(g) and 416.920(g)).
(Tr. 13-15, 18-19)
On June 6, 2014, the Appeals Council denied plaintiff’s request for review of
the ALJ’s decision (Tr. 1-3), thereby rendering that decision the final decision of the
Administration. This civil action was thereafter timely filed, and the court has jurisdiction.
42 U.S.C. §§ 405(g), 1383(c). If the ALJ’s findings are supported by substantial evidence,
based on the record as a whole, then those findings are conclusive. Id.
II. Review of the Record
The following review of the record is taken from plaintiff’s brief, Docket Entry
No. 12-1 at pp. 2-3:
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Records contain x-ray results of the right foot from November 20, 2009. Findings
showed status post amputation of the great toe and second toe. R. 243.
Records in the file from the VA Medical Center show assessments of Hepatitis C,
hypertension, hyperlipidemia, GERD, foot pain, reflux, low back pain, and allergic rhinitis.
R. 257 and 372.
Treatment notes indicate that the Plaintiff has a history of polysubstance abuse.
[Urinary drug screen] results from March 15, 2010, were positive for cocaine. R. 421.
Dr. Michael Loftin performed a consultative examination on April 8, 2011. He
assessed the Plaintiff with major depressive disorder, single episode, moderate. Dr. Loftin
completed a Medical Source Statement and assigned moderate limitations in the ability to
understand, remember, and carry out simple instructions and in the ability to respond
appropriately to the general public, coworkers, and supervisors. R. 326-329.
Audiometric testing from April 13, 2011, revealed hearing sloping from mild to
moderate [loss] in the right ear and mild to severe [loss] in the left ear. R. 384.
An x-ray of the left knee was performed on June 10, 2011. Findings showed
degenerative narrowing of the medial joint compartment. R. 376.
An esophagogram was performed on July 1, 2011, due to continued dysphagia.
Findings revealed a small sliding hiatal hernia. R. 505-506.
(Docket Entry No. 12-1 at 2-3)
III. Conclusions of Law
A. Standard of Review
This court reviews the final decision of the SSA to determine whether that
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agency’s findings of fact are supported by substantial evidence in the record and whether the
correct legal standards were applied. Elam ex rel. Golay v. Comm’r of Soc. Sec., 348 F.3d
124, 125 (6th Cir. 2003). “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 a conclusion.’” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th
Cir. 2007)(quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.
1994)). Even if the record contains substantial evidence that could have supported an
opposite conclusion, the SSA’s decision must stand if substantial evidence supports the
conclusion reached. E.g., Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir.
2005). Accordingly, while this court considers the record as a whole in determining whether
the SSA’s decision is substantially supported, it may not review the case de novo, resolve
conflicts in the evidence, or decide questions of credibility. See Bass v. McMahon, 499 F.3d
506, 509 (6th Cir. 2007); Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
B. Proceedings at the Administrative Level
The claimant has the ultimate burden to establish an entitlement to benefits
by proving his or her “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than
12 months.” 42 U.S.C. § 423(d)(1)(A). The claimant’s “physical or mental impairment” must
“result[] from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” Id. at §
423(d)(3). In proceedings before the SSA, the claimant’s case is considered under a five-step
sequential evaluation process, described by the Sixth Circuit Court of Appeals as follows:
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1) A claimant who is engaging in substantial gainful activity will not be found
to be disabled regardless of medical findings.
2) A claimant who does not have a severe impairment will not be found to be
disabled.
3) A finding of disability will be made without consideration of vocational
factors, if a claimant is not working and is suffering from a severe impairment
which meets the duration requirement and which meets or equals a listed
impairment in Appendix 1 to Subpart P of the Regulations. Claimants with
lesser impairments proceed to step four.
4) A claimant who can perform work that he has done in the past will not be
found to be disabled.
5) If a claimant cannot perform his past work, other factors including age,
education, past work experience and residual functional capacity must be
considered to determine if other work can be performed.
Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007)(citing, e.g., Combs v. Comm’r
of Soc. Sec., 459 F.3d 640, 642-43 (6th Cir. 2006)(en banc)); 20 C.F.R. §§ 404.1520(b)-(f),
416.920 (b)-(f).
The SSA’s burden at the fifth step of the evaluation process can be carried by
relying on the medical-vocational guidelines, otherwise known as “the grids,” but only if the
claimant is not significantly limited by a nonexertional impairment, and then only when the
claimant’s characteristics identically match the characteristics of the applicable grid rule. See
Wright v. Massanari, 321 F.3d 611, 615-16 (6th Cir. 2003). Otherwise, the grids cannot be
used to direct a conclusion, but only as a guide to the disability determination. Id.; see also
Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990). In such cases where the grids do not
direct a conclusion as to the claimant’s disability, the SSA must rebut the claimant’s prima
facie case by coming forward with proof of the claimant’s individual vocational qualifications
to perform specific jobs, which is typically obtained through vocational expert (“VE”)
testimony. See Wright, 321 F.3d at 616 (quoting Soc. Sec. Rul. 83-12, 1983 WL 31253, *4
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(S.S.A.)); see also Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987).
In determining residual functional capacity (“RFC”) for purposes of the
analysis required at steps four and five above, the SSA is required to consider the combined
effect of all the claimant’s impairments, mental and physical, exertional and nonexertional,
severe and nonsevere. See 42 U.S.C. §§ 423(d)(2)(B), (5)(B); Foster v. Bowen, 853 F.2d 483,
490 (6th Cir. 1988).
C. Plaintiff’s Statement of Errors
Plaintiff first argues that the ALJ erred by relying on the vocational expert’s
testimony to the existence of representative jobs which the plaintiff’s RFC would allow him
to perform, inasmuch as the three jobs which the expert identified by reference to their
coded Dictionary of Occupational Titles (DOT) number are in fact inconsistent with
plaintiff’s RFC, by the terms of their DOT listings. For the reasons stated in the
government’s response, the undersigned finds no merit in plaintiff’s argument. First,
plaintiff points out that the job of assembler is identified in the DOT as requiring light, not
medium, exertion. Be that as it may, the vocational expert specifically testified that he was
referring to “assembler at medium.” (Tr. 48) Accordingly, there is no conflict between the
DOT description of assembler as a light occupation, and the vocational expert’s testimony to
the existence of jobs within that occupation which require a medium level of exertion. See
Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601, 605 (6th Cir. 2009). Even if the expert had not
specifically delineated the job as “assembler at medium,” there would be no error. See Conn
v. Sec’y of Health & Human Servs., 51 F.3d 607, 610 (6th Cir. 1995) (finding that the
vocational expert’s identification of a job as sedentary, when the DOT identified it as light or
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medium, did not render the expert’s testimony unreliable).
Finally, plaintiff’s contention that the ALJ’s reliance upon a job which the
DOT identifies as light “is significant, as the Plaintiff is disabled under the MedicalVocational Guidelines with a light residual functional capacity” (Docket Entry No. 12-1 at 6),
has been addressed and overruled as a matter of law by the Sixth Circuit. In Anderson v.
Comm’r of Soc. Sec., 406 Fed. Appx. 32, 35-37 (6th Cir. Dec. 22, 2010), the court considered a
claimant’s contention that the ALJ’s reliance upon sedentary jobs, identified by a vocational
expert as available to the claimant who had an RFC for light work, should dictate the
application of a sedentary grid rule pursuant to which a finding of disability would be
directed for the claimant. The Anderson court recognized this argument as a non-sequitur,
holding as follows:
That is not how the system operates. The RFC is based on the claimant’s
particular disabilities, an inquiry wholly independent from what jobs are
available in the regional and national economy. The VE does not testify as to
what the claimant is physically capable of doing, but rather as to what jobs are
available, given the claimant’s physical capabilities. Thus, in a step-five
analysis, the VE’s testimony depends upon the RFC and not the other way
around. Significantly, every court to have considered the precise argument
that Anderson makes here has rejected its underlying understanding of the
law. . . . A person who has a residual capacity for light work generally also can
perform sedentary work....
Id. at 36 (internal citations omitted).
The government further points out that plaintiff’s argument regarding the
identified job of production helper is flawed. With respect to this job, plaintiff argues that
the DOT-required job duty of dumping ingredients into grinding or mixing machines would
“clearly require[] him to work around unguarded moving machinery” (Docket Entry No. 128
1 at 7), which the ALJ found him restricted from doing. However, the government points
out that the DOT listing for this occupation explicitly states that it does not involve exposure
to unprotected heights or moving machinery. 1991 WL 674732. Inasmuch as the ALJ
properly relied upon the vocational expert’s testimony to the existence in the national
economy of 200,000 combined assembler and production helper jobs, the undersigned
concludes that substantial evidence supports the finding of a significant number of available
jobs made by the ALJ at the fifth step of the sequential evaluation process, even if the
climbing required in the store laborer job would be precluded by plaintiff’s RFC. See Garvin
v. Astrue, 2011 WL 3205350, at *12-13 (M.D. Tenn. July 26, 2011) (citing cases).
Plaintiff’s remaining arguments are (1) that his diagnosed degenerative joint
disease of the left knee should have been explicitly evaluated in the ALJ’s analysis of his
severe impairments, and (2) that an explicit “function-by-function” assessment should have
been included in the ALJ’s determination of his RFC. Neither argument has merit.
Regarding plaintiff’s left knee, the ALJ recognized his allegation of knee pain
in considering his subjective symptoms at the fourth step of the sequential evaluation
process. (Tr. 17) Accordingly, any error in failing to consider the knee condition at step two
is harmless. Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987).
Although plaintiff refers to a well documented diagnosis of degenerative joint disease, the
record reflects that he complained of knee pain to his doctor once, on June 9, 2011 (Tr. 393);
his pain did not limit range of motion in the knee and was treated with Naprosyn (Tr. 17,
394-95); x-rays revealed only minimal degenerative changes in the knee with no bony
abnormality (Tr. 376); and, plaintiff does not appear to have complained of knee pain to any
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physician thereafter. He testified before the ALJ that the knee will become irritated
depending on how long he is on it. (Tr. 36) Clearly, the ALJ did not err in failing to further
account for plaintiff’s alleged left knee impairment beyond the exertional and postural
limitations he found in determining plaintiff’s RFC.
Regarding the alleged failure to perform a function-by-function assessment in
determining plaintiff’s capacity for exertional work, as required by Social Security Ruling 968p, the Sixth Circuit has explained this requirement as follows:
In Bencivengo [v. Comm’r of Soc. Sec., 251 F.3d 153 (table), No. 00-1995 (3d
Cir. Dec. 19, 2000)], the Third Circuit stated, “Although a function-byfunction analysis is desirable, SSR 96–8p does not require ALJs to produce such
a detailed statement in writing.” Bencivengo, slip op. at 4. The Third Circuit
distinguished between what an ALJ must consider and what an ALJ must
discuss in a written opinion. The ALJ need not decide or discuss uncontested
issues, “the ALJ need only articulate how the evidence in the record supports
the RFC determination, discuss the claimant's ability to perform sustained
work-related activities, and explain the resolution of any inconsistencies in the
record.” Bencivengo, slip op. at 5.
Delgado v. Comm'r of Soc. Sec., 30 F. App'x 542, 547-48 (6th Cir. Mar. 4, 2002). Here,
beyond the general assertion that “the ALJ failed to include substantial limitations in the
RFC finding correlating to symptoms and limitations which were well-documented in the
record” (Docket Entry No. 12-1 at 9), plaintiff has failed to specify any inconsistencies that
went unresolved by virtue of the ALJ’s failure to consider or discuss any particular functional
limitation, and the undersigned finds none.
In sum, the decision of the ALJ is supported by substantial evidence on the
record as a whole. That decision should therefore be affirmed.
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IV. Recommendation
In light of the foregoing, the Magistrate Judge recommends that plaintiff’s
motion for judgment on the administrative record be DENIED and that the decision of the
SSA be AFFIRMED.
Any party has fourteen (14) days from receipt of this Report and
Recommendation in which to file any written objections to it with the District Court. Any
party opposing said objections shall have fourteen (14) days from receipt of any objections
filed in which to file any responses to said objections. Failure to file specific objections
within fourteen (14) days of receipt of this Report and Recommendation can constitute a
waiver of further appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140 (1985);
Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004)(en banc).
ENTERED this 14th day of September, 2015.
s/ John S. Bryant
JOHN S. BRYANT
UNITED STATES MAGISTRATE JUDGE
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