Adcock v. Social Security Administration
Filing
17
REPORT AND RECOMMENDATION re 14 First MOTION for Judgment on the Record filed by Mary Ann Adcock. For the above stated reasons, it is respectfully recommended that Plaintiff's motion for judgment on the administrative record (DE 14) be D ENIED and the Commissioner's decision be AFFIRMED. ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court within fourteen (14) days of service of this Report and Recommendation and must state with particularity the specific portions of this Report and Recommendation to which objection is made. Failure to file written objections within the specified time can be deemed a waiver of the right to appeal the District Court's Order regarding the Report and Recommendation. Signed by Magistrate Judge Barbara D. Holmes on 12/19/17. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
MARY ANN ADCOCK
v.
NANCY A. BERRYHILL
Acting Commissioner of
Social Security 1
To:
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)
No. 3:16-0806
The Honorable Aleta A. Trauger, District Judge
REPORT AND RECOMMENDATION
Plaintiff filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain
judicial review of the final decision of the Social Security Administration (“Commissioner”)
denying Plaintiff’s claim for a period of disability and Disability Insurance Benefits (“DIB”), as
provided under Title II of the Social Security Act (“the Act”). The case is currently pending on
Plaintiff’s motion for judgment on the administrative record (Docket Entry No. 14), to which
Defendant has responded. Docket Entry No. 16.
Upon review of the administrative record as a whole and consideration of the parties’
filings, the undersigned Magistrate Judge respectfully recommends that Plaintiff’s motion for
judgment on the administrative record (Docket Entry No. 14) be DENIED.
1
Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for
former Acting Commissioner Carolyn W. Colvin as the defendant in this suit.
I. INTRODUCTION
Plaintiff filed an application for a period of disability and DIB on July 23, 2012. See
Transcript of the Administrative Record (Docket Entry No. 10) at 80. 2 She alleged a disability
onset date of July 1, 2012. AR 75. Plaintiff asserted that she was unable to work due to lower
back pain, shoulder pain, and neck pain. AR 110. 3
Plaintiff’s applications were denied initially and upon reconsideration AR 80, 103.
Pursuant to her request for a hearing before an administrative law judge (“ALJ”), Plaintiff
appeared with counsel and testified at a hearing before ALJ Renee S. Andrews-Turner on
August 13, 2014. AR 26. On October 31, 2014, the ALJ denied the claim. AR 10-12. On April 4,
2016, the Appeals Council denied Plaintiff’s request for a review of the ALJ’s decision (AR 13), thereby making the ALJ’s decision the final decision of the Commissioner. This civil action
was thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. § 405(g).
II. THE ALJ FINDINGS
The ALJ issued an unfavorable decision on October 31, 2014. AR 10-12. Based upon the
record, the ALJ made the following enumerated findings:
1. The claimant meets the insured status requirements of the Social Security Act
through June 30, 2015.
2. The claimant has not engaged in substantial gainful activity since July 1, 2012,
the alleged onset date (20 CFR 404.1571 et seq.).
2
The Transcript of the Administrative Record is hereinafter referenced by the abbreviation “AR”
followed by the corresponding page number(s) as numbered in large black print on the bottom right
corner of each page. All other filings are hereinafter referenced by the abbreviation “DE” followed by the
corresponding docket entry number and page number(s) where appropriate.
3
Records also revealed obesity. AR 110.
2
***
3. The claimant has the following severe impairments: lumbar spine degenerative
disc disease, obesity, and depressive 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 light work as defined in
20 CFR 404.1567(b) except the claimant can lift and/or carry 20 pounds
occasionally and 10 pounds frequently; stand and/or walk for 6 hours in an 8-hour
workday; sit for 6 hours in an 8-hour workday; occasionally climb, balance,
stoop, kneel, crouch, and crawl; and can understand, remember, and carry out
simple instructions.
***
6. The claimant is capable of performing past relevant work as a cleaner and sewing
machine operator. 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 July 1, 2012 through the date of this decision (20 CFR 404.1520(f)).
AR 15-22.
III. REVIEW OF THE RECORD
The parties and the ALJ have thoroughly summarized and discussed the medical and
testimonial evidence of the administrative record. Accordingly, the Court will discuss those
matters only to the extent necessary to analyze the parties’ arguments.
3
IV. DISCUSSION AND CONCLUSIONS OF LAW
A. Standard of Review
The determination of disability under the Act is an administrative decision. The only
questions before this Court upon judicial review are: (i) whether the decision of the
Commissioner is supported by substantial evidence, and (ii) whether the Commissioner made
legal errors in the process of reaching the decision. 42 U.S.C. § 405(g). See Richardson v.
Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971) (adopting and defining
substantial evidence standard in context of Social Security cases); Kyle v. Comm’r of Soc. Sec.,
609 F.3d 847, 854 (6th Cir. 2010). The Commissioner’s decision must be affirmed if it is
supported by substantial evidence, “even if there is substantial evidence in the record that would
have supported an opposite conclusion.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th
Cir. 2009) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)); Jones v. Comm’r of
Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003); Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90
(6th Cir. 1999).
Substantial evidence is defined as “more than a mere scintilla” and “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson,
402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 83 L.
Ed. 126 (1938)); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007); LeMaster v.
Weinberger, 533 F.2d 337, 339 (6th Cir. 1976) (quoting Sixth Circuit opinions adopting
language substantially similar to that in Richardson).
The Court’s review of the Commissioner’s decision is limited to the record made in the
administrative hearing process. Jones v. Secretary, 945 F.2d 1365, 1369 (6th Cir. 1991). A
reviewing court may not try the case de novo, resolve conflicts in evidence, or decide questions
4
of credibility. See, e.g., Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citing Myers v.
Richardson, 471 F.2d 1265, 1268 (6th Cir. 1972)). The Court must accept the ALJ’s explicit
findings and determination unless the record as a whole is without substantial evidence to
support the ALJ’s determination. 42 U.S.C. § 405(g). See, e.g., Houston v. Sec’y of Health &
Human Servs., 736 F.2d 365, 366 (6th Cir. 1984).
B. Determining Disability at the Administrative Level
The claimant has the ultimate burden of establishing an entitlement to benefits by proving
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. § 432(d)(1)(A). The asserted impairment(s) must be demonstrated by medically
acceptable clinical and laboratory diagnostic techniques. See 42 U.S.C. §§ 432(d)(3) and
1382c(a)(3)(D); 20 C.F.R. §§ 404.1512(a), (c), and 404.1513(d). “Substantial gainful activity”
not only includes previous work performed by the claimant, but also, considering the claimant’s
age, education, and work experience, any other relevant work that exists in the national economy
in significant numbers regardless of whether such work exists in the immediate area in which the
claimant lives, or whether a specific job vacancy exists, or whether the claimant would be hired
if she applied. 42 U.S.C. § 423(d)(2)(A).
In the proceedings before the Social Security Administration, the Commissioner must
employ a five-step, sequential evaluation process in considering the issue of the claimant’s
alleged disability. See Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001); Abbot
v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, the claimant must show that she is not
engaged in “substantial gainful activity” at the time disability benefits are sought. Cruse v.
5
Comm’r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007); 20 C.F.R. §§ 404.1520(b), 416.920(b).
Second, the claimant must show that she suffers from a severe impairment that meets the
12-month durational requirement. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). See also
Edwards v. Comm’r of Soc. Sec., 113 F. App’x 83, 85 (6th Cir. 2004). Third, if the claimant has
satisfied the first two steps, the claimant is presumed disabled without further inquiry, regardless
of age, education or work experience, if the impairment at issue either appears on the regulatory
list of impairments that are sufficiently severe as to prevent any gainful employment or equals a
listed impairment. Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006); 20 C.F.R.
§§ 404.1520(d), 416.920(d). A claimant is not required to show the existence of a listed
impairment in order to be found disabled, but such showing results in an automatic finding of
disability that ends the inquiry. See Combs, supra; Blankenship v. Bowen, 874 F.2d 1116, 1122
(6th Cir. 1989).
If the claimant’s impairment does not render her presumptively disabled, the fourth step
evaluates the claimant’s residual functional capacity in relationship to her past relevant work.
Combs, supra. “Residual functional capacity” (“RFC”) is defined as “the most [the claimant] can
still do despite [her] limitations.” 20 C.F.R. §§ 404.1545(a)(1). In determining a claimant’s RFC,
for purposes of the analysis required at steps four and five, the ALJ 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). At the fourth step, the claimant has the burden of proving an
inability to perform past relevant work or proving that a particular past job should not be
considered relevant. Cruse, 502 F.3d at 539; Jones, 336 F.3d at 474. If the claimant cannot
6
satisfy the burden at the fourth step, disability benefits must be denied because the claimant is
not disabled. Combs, supra.
If a claimant is not presumed disabled but shows that past relevant work cannot be
performed, the burden of production shifts at step five to the Commissioner to show that the
claimant, in light of the claimant’s RFC, age, education, and work experience, can perform other
substantial gainful employment and that such employment exists in significant numbers in the
national economy. Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005)
(quoting Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997)). See also Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). To rebut a prima facie case, the Commissioner must
come forward with proof of the existence of other jobs a claimant can perform. Longworth, 402
F.3d at 595. See also Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 528 (6th Cir. 1981),
cert. denied, 461 U.S. 957, 103 S. Ct. 2428, 77 L. Ed. 2d 1315 (1983) (upholding the validity of
the medical-vocational guidelines grid as a means for the Commissioner of carrying his burden
under appropriate circumstances). Even if the claimant’s impairments prevent the claimant from
doing past relevant work, if other work exists in significant numbers in the national economy that
the claimant can perform, the claimant is not disabled. Rabbers v. Comm’r of Soc. Sec., 582 F.3d
647, 652 (6th Cir. 2009). See also Tyra v. Sec’y of Health & Human Servs., 896 F.2d 1024,
1028-29 (6th Cir. 1990); Farris v. Sec’y of Health & Human Servs., 773 F.2d 85, 88-89 (6th Cir.
1985); Mowery v. Heckler, 771 F.2d 966, 969-70 (6th Cir. 1985).
If the question of disability can be resolved at any point in the sequential evaluation
process, the claim is not reviewed further. 20 C.F.R. § 404.1520(a)(4). See also Higgs v. Bowen,
880 F.2d 860, 863 (6th Cir. 1988) (holding that resolution of a claim at step two of the evaluative
process is appropriate in some circumstances).
7
C. The ALJ’s Five-Step Evaluation of Plaintiff
In the instant case, the ALJ resolved Plaintiff’s claim at step four of the five-step process.
The ALJ found that Plaintiff met the first two steps, but determined at step three that Plaintiff
was not presumptively disabled because she did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1. At step four, the ALJ found that Plaintiff was able to
perform past relevant work and thus concluded that Plaintiff has not been under a disability since
the alleged onset date of July 1, 2012. AR 15-22.
D. Plaintiff’s Assertion of Error
Plaintiff argues that the ALJ erred by failing to properly consider the opinion of a
consultative examiner. DE 15 at 1. Plaintiff therefore requests that this case be reversed and
benefits awarded, or, alternatively, remanded pursuant to sentence four of 42 U.S.C. § 405(g) for
further consideration. Id. at 10.
Sentence four of 42 U.S.C. § 405(g) states the following:
The court shall have power to enter, upon the pleadings and transcript of the
record, a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a
rehearing.
42 U.S.C. § 405(g), 1383(c)(3). “In cases where there is an adequate record, the
[Commissioner’s] decision denying benefits can be reversed and benefits awarded if the decision
is clearly erroneous, proof of disability is overwhelming, or proof of disability is strong and
evidence to the contrary is lacking.” Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985).
Furthermore, a court can reverse the decision and immediately award benefits if all essential
factual issues have been resolved and the record adequately establishes a claimant’s entitlement
8
to benefits. Faucher v. Secretary, 17 F.3d 171, 176 (6th Cir. 1994). See also Newkirk v. Shalala,
25 F.3d 316, 318 (1994). The Court will address Plaintiff’s assertion of error below.
1. Consultative Examiner.
Plaintiff’s sole assertion of error involves the opinion of Dr. Jacob Dowden, a
consultative examiner who evaluated Plaintiff on September 8, 2012 (AR 359-62), and the RFC
formulated by the ALJ. AR 17. Dr. Dowden concluded that, during an eight-hour workday,
Plaintiff would be able to continuously lift and carry up to 10 pounds, as well as “sit, stand, and
walk continuously in an 8-hour day which represents at least 5 hours a day with regular breaks.”
AR 361. 4 Plaintiff claims that the ALJ failed to incorporate this 10-pound lifting/carrying
restriction into the RFC despite according “great weight” to Dr. Dowden’s opinion. DE 15 at 4-5.
As an initial matter, the Court notes that Plaintiff fails to discuss, or even acknowledge,
the ALJ’s statements regarding Plaintiff’s prior application for DIB in August of 2008, which
was denied by another ALJ in August of 2010 (the “prior decision”), that clearly influenced the
RFC assigned by the ALJ in this case:
Under the provisions of Dennard/Drummond case law and attendant acquiescence
rulings, adjudications of any subsequent filed applications under the same title are
bound by the residual functional capacity and other vocational information in the
prior final decision, [absent] evidence of significant change in medical condition.
After an evaluation of the entire record, the objective medical evidence shows that
there has not been a significant change in the claimant’s overall medical
condition.
AR 13. The reference to “Dennard/Drummond case law” involves two cases in which the Sixth
Circuit held, respectively, that a prior administrative determination regarding the exertional level
of a claimant’s past work was binding in subsequent administrative proceedings, Dennard v.
Sec’y of Health & Human Servs., 907 F.2d 598 (6th Cir. 1990), and that absent evidence of an
4
Dr. Dowden found that Plaintiff suffered from no other functional limitations. AR 361.
9
improvement in a claimant’s condition, the ALJ in a subsequent proceeding is bound by the prior
ALJ’s RFC findings and may not decide the case by utilizing a less restrictive RFC. Drummond
v. Comm’r of Soc. Sec., 126 F.3d 837 (6th Cir. 1997). Plaintiff’s brief makes no reference to any
errors in the ALJ’s application of Dennard or Drummond in the instant matter, which is a
significant omission in her argument. Even more glaring is Plaintiff’s failure to file a reply brief
addressing Dennard and Drummond despite Defendant’s heavy reliance on these cases in
support of the assigned RFC. See DE 16 at 4, 8.
Regardless, the Court finds it necessary to address the ALJ’s application of these rulings
in the instant matter. The ALJ correctly stated that based on the Dennard and Drummond
decisions, she was “bound by the [RFC] and other vocational information in the prior final
decision” unless there was evidence of a significant improvement in Plaintiff’s condition. AR 13.
The Court notes that following the Drummond decision, the Social Security Administration
(“SSA”) adopted Acquiescence Ruling 98-4(6), which described the impact of the Drummond
decision as follows:
[W]here a final decision of SSA after a hearing on a prior disability claim
contains a finding of a claimant’s [RFC], SSA may not make a different finding in
adjudicating a subsequent disability claim with an unadjudicated period arising
under the same title of the Act as the prior claim unless new and additional
evidence or changed circumstances provide a basis for a different finding of the
claimant’s [RFC].
1998 WL 283902, *3 (June 1, 1998). After recognizing the applicability of Dennard and
Drummond, the ALJ specifically stated that “there has not been a significant change in the
claimant’s overall medical condition” (AR 13), which should have resulted in the assignment of
the same RFC that was assigned in the prior decision. However, the ALJ in the current case
instead formulated an RFC that was less restrictive in some ways, including a finding that
Plaintiff was able to “stand and/or walk for 6 hours in an 8-hour workday” (AR 17), despite the
10
prior decision’s finding that Plaintiff could only “stand or walk 4 hours in an 8 hour workday but
less than 1 hour uninterrupted[.]” AR 62. The ALJ also failed to include any restrictions
pertaining to grip despite the prior decision’s finding that Plaintiff was limited to occasional use
of forceful grip. AR 62. Therefore, despite explicitly stating that she found no evidence of
medical improvement, the ALJ assigned a new RFC that contained some limitations that were
milder than those assigned in the prior decision. 5 This constitutes error in violation of both
Drummond and Acquiescence Ruling 98-4(6). See Collier v. Comm’r of Soc. Sec., 108 F. App’x
358, 362 (6th Cir. 2004) (“In Drummond, this court held that, absent evidence of an
improvement in a claimant’s condition, a subsequent ALJ is bound by the findings of a previous
ALJ.”). See also Ford v. Berryhill, No. 5:16-CV-00115-LLK, 2017 WL 2531588, at *1 (W.D.
Ky. June 9, 2017) (“Read together, Drummond and Acquiescence Ruling 98-4(6) establish that
an ALJ is bound by the prior ALJ’s RFC finding unless there is new and material evidence of a
change (improvement) in the claimant’s medical condition or a relevant change in the law.”).
Notwithstanding this finding, the Court must still determine whether the ALJ’s error is
harmless in nature. The court in Ford cogently described the three basic categories of harmless
Drummond errors:
5
Of note, the ALJ also included limitations than were more restrictive, including a limitation that
Plaintiff was able to sit for only six hours in an eight-hour workday (AR 17), despite the prior decision’s
finding that she could sit for eight hours in an eight-hour workday. AR 62. The ALJ in the instant case
also included an additional limitation that Plaintiff was able to understand, remember, and carry out
simple instructions, which was absent from the previous RFC. As discussed elsewhere in this Report and
Recommendation, an ALJ’s decision to assign more restrictive limitations in a subsequent decision can
represent harmless error. See Clayton v. Comm’r of Soc. Sec., No. 2:15-cv-12249, 2016 WL 5402963, at
*3 (E.D. Mich. Sept. 28, 2016) (“[W]here a latter [RFC] ... is more restrictive than the prior RFC, a
Plaintiff is unable to demonstrate the prejudice or harm necessary to achieve a remand.”). Regardless, the
ALJ’s decision to deviate from the prior RFC despite finding no evidence of a significant change in
Plaintiff’s condition represents a Drummond error.
11
First, even if the ALJ did not identify new and material evidence of a change
warranting departure from the prior RFC, the error was harmless if the current
RFC was more claimant-favorable than the prior one .... Second, although the
current RFC may appear to be less claimant-favorable, in fact, it may be
substantially the same as the prior one in light of the definitions in the Social
Security Rulings (SSRs) and other sources—resulting in a harmless Drummond
error .... Third, a Drummond error may be harmless in light of the vocational
testimony and the requirements of jobs as described in the Dictionary of
Occupational Titles (DOT).
2017 WL 2531588, at *3 (collecting cases). The first category cannot apply due to the ALJ’s
inclusion of some limitations in the subsequent RFC that were less favorable to Plaintiff, as
described supra. Cf. Washington v. Soc. Sec. Admin., No. 3:13-CV-00785, 2017 WL 975349, at
*11 (M.D. Tenn. Mar. 14, 2017) (“Where an ALJ in a subsequent decision renders an RFC
finding that is more restrictive than the ALJ in a prior decision, the claimant has no cause for
remand even if the subsequent ALJ failed to properly apply the preclusive effect of the earlier
decision, because any error works to the claimant’s benefit.”). The second category is arguably
relevant in light of the substantial similarities between the RFC assignments. Cf. Hill v. Comm’r
of Soc. Sec., No. 1:13-cv-90, 2013 WL 6119326, at *3 (S.D. Ohio Nov. 21, 2013), report and
recommendation adopted, 2014 WL 29515 (S.D. Ohio Jan. 3, 2014) (“Given [the ALJ’s]
determination that Plaintiff is limited to a restricted range of sedentary jobs, the slight variation
from the prior RFC (i.e., eliminating a requirement that Plaintiff stand and/or walk for no more
than 2 hours in a day, and eliminating stooping and crouching restrictions), could be deemed
harmless.”). Indeed, the RFC from the prior decision and the current RFC are substantially
similar in that both involve a limited range of light work. AR 17, 62.
The third category also provides a potential path for finding that the ALJ’s failure to
adhere to Drummond represents harmless error. As stated by the Ford court, “if the current RFC
is less claimant-favorable but the jobs relied on by the current ALJ in support of his/her finding
12
of lack of disability do not require the additional capacity, any error was harmless.” 2017 WL
2531588, at *3. The ALJ in the most recent hearing presented a hypothetical to the vocational
expert (“VE”) utilizing physical limitations derived from the recommendations of Dr. Kanika
Chaudhuri, a non-examining State consultant. AR 48, 76-77. 6 The VE responded that based on
such physical limitations, Plaintiff would be able to perform past relevant work as a sewing
machine operator and a cleaner. AR 48. The ALJ appears to have based the RFC determination
on this testimony (AR 17), and ultimately determined that Plaintiff was not disabled based on her
ability to perform the requirements of sewing machine operator and cleaner. AR 22.
However, the ALJ in the prior decision concluded that Plaintiff was not able to perform
any past relevant work, noting that the ascribed RFC “would preclude the performance of all past
work,” which included work as a sewing machine operator, cleaner, and inspector. AR 65. The
previous ALJ instead identified several jobs, elicited through VE testimony, that Plaintiff would
be able to perform in light of her RFC. AR 65-66. In contrast, the ALJ in the instant case found
that Plaintiff was not entitled to disability based on her alleged ability to perform past relevant
work. AR 22. Therefore, despite explicitly finding that there was no evidence of a significant
change in Plaintiff’s medical condition and noting that Dennard and Drummond applied to the
instant case, the ALJ proceeded to assign a new RFC that included different limitations, however
minor, and allowed a subsequent VE to testify that Plaintiff could perform past relevant work.
This scenario appears to be antithetical to the spirit of the Dennard and Drummond decisions, as
it allows an ALJ to utilize an RFC from a previous decision to elicit testimony from a VE that is
6
Notably, the hypothetical included a restriction of lifting and carrying 20 pounds occasionally
and 10 pounds frequently (AR 48), which is identical to the lifting carrying restriction contained in the
RFC from the prior decision. AR 62.
13
more favorable to the Commissioner, which in the instant case allowed the ALJ to circumvent
the prior decision’s step-four finding that Plaintiff was not able to perform past relevant work.
Neither party addresses this discrepancy. Defendant actually relies on Drummond in its
responsive brief to argue that because “the evidence did not reveal a change in Plaintiff’s
condition, the ALJ was required to find that Plaintiff’s RFC had not changed.” DE 16 at 8. Yet
this is not the course taken by the ALJ. The ALJ instead formulated a new RFC despite finding
no significant change in Plaintiff’s condition. AR 13, 17. Even if assumed that the ALJ adopted a
substantially similar RFC that permitted a limited range of light work, as Defendant suggests, 7
this would not explain the ALJ’s decision to deviate from the prior decision’s step-four finding
regarding past relevant work.
Nevertheless, the Court cannot conclude that the ALJ’s error warrants reversal of the
decision. First and foremost, Plaintiff fails to even acknowledge the applicability of Dennard,
Drummond, or Acquiescence Ruling 98-4(6) in the current case, let alone present an argument
based on such doctrines. Plaintiff has therefore waived any argument based on such application.
See Kuhn v. Washtenaw Cty., 709 F.3d 612, 624 (6th Cir. 2013) (“This court has consistently
held that arguments not raised in a party’s opening brief ... are waived.”) (citing Caudill v.
Hollan, 431 F.3d 900, 915 n.13 (6th Cir. 2005)). See also Nichols v. Comm’r of Soc. Sec.,
No. 1:12-cv-995, 2014 WL 4259445, at *9 (W.D. Mich. Aug. 28, 2014) (failure to raise an
argument in the initial brief “should end the court’s analysis, because issues not presented in the
plaintiff’s statement of errors are considered waived”).
7
Defendant’s brief states the following: “[T]he ALJ explained that Plaintiff had an RFC for light
work and she had not had a significant change in her medical condition, so that the prior RFC was
binding in the current case, pursuant to [Drummond].” DE 16 at 8.
14
Additionally, the Court notes that notwithstanding the ALJ’s seemingly inconsistent stepfour finding, the ALJ also took steps to elicit testimony from the VE during the administrative
hearing indicating that there are numerous jobs that Plaintiff can perform despite the assigned
RFC. AR 48-50. While the ALJ did not produce an alternative finding describing such additional
jobs in her opinion, this testimony constitutes substantial evidence in support of the ALJ’s
disability finding. See Dyer v. Soc. Sec. Admin., 568 F. App’x 422, 428-29 (6th Cir. 2014) (“A
vocational expert’s testimony in response to an accurate hypothetical represents substantial
evidence that the claimant has the vocational qualifications to perform specific jobs.”) (internal
citations omitted). The Court also recognizes that the ALJ in the prior decision made a step-five
finding that Plaintiff was able to perform jobs that existed in significant numbers in the national
economy (AR 65-66), which, due to the current ALJ’s finding that Plaintiff’s medical condition
has not changed, renders harmless any error committed by failing to make a step-five finding in
the instant case. See Reese v. Comm’r of Soc. Sec., No. 5:11-cv-1257, 2012 WL 4023396, at *10
(N.D. Ohio June 5, 2012), report and recommendation adopted, 2012 WL 4021161 (N.D. Ohio
Sept. 12, 2012) (“Because the prior ALJ had already determined that an individual with [the
claimant’s] RFC would be capable of performing an array of jobs existing in the economy, it was
unnecessary for the instant ALJ to readjudicate this issue pursuant to Drummond.”).
Finally, and crucially, Plaintiff has failed to identify any evidence suggesting that a
favorable ruling is possible on remand. See Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496,
507-08 (6th Cir. 2006) (“No principle of administrative law or common sense requires us to
remand a case in quest of a perfect opinion unless there is reason to believe that remand might
lead to a different result.”) (quoting Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989)).
Plaintiff instead hopes to secure reversal based solely on the ALJ’s decision to not entirely credit
15
the opinion of Dr. Dowden, a consultative examiner. However, the ALJ was not required to
“adopt that opinion wholesale” despite granting “great weight” to it, Bennett v. Colvin, No. 3:13cv-1176, 2015 WL 153950, at *13 (M.D. Tenn. Jan. 12, 2015), 8 and the ALJ adequately noted
while discussing Dr. Dowden’s opinion that Plaintiff has exhibited only mild degenerative
changes in her lumbar spine and a normal gait. AR 21. The RFC also contains the same
restriction with respect to lifting and carrying (20 pounds occasionally and 10 pounds frequently)
that the RFC from the prior decision included. AR 17, 62.
In contrast, Plaintiff cites no medical evidence indicating that she is limited to lifting and
carrying just 10 pounds as recommended by Dr. Dowden. In fact, Plaintiff fails to cite any
evidence whatsoever that suggests that Plaintiff suffers from a disabling condition. This is
significant in light of both Plaintiff’s burden to prove her entitlement to disability benefits, Boyes
v. Sec’y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994), as well as Plaintiff’s
failure to produce opinion evidence from any medical provider or examiner at the administrative
level, as discussed by the ALJ. AR 20. Reversing and remanding this decision would therefore
represent “an idle and useless formality” that the undersigned declines to facilitate. Collette v.
Astrue, No. 2:08-cv-085, 2009 WL 32929, at *9 (E.D. Tenn. Jan. 6, 2009) (quoting Wilson v.
Comm’r of Soc. Sec., 378 F.3d 541, 547 (6th Cir. 2004)).
The Commissioner’s decision must be affirmed if substantial evidence supports it, “even
if substantial evidence would support an opposite conclusion.” Rudd v. Comm’r of Soc. Sec., 531
F. App’x 719, 726 (6th Cir. 2013) (citing Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 714 (6th
8
See also Matejka v. Comm’r of Soc. Sec. Admin., No. 1:13-cv-1933, 2014 WL 3197437, at *13
(N.D. Ohio July 8, 2014) (“Even when an ALJ accords ‘significant weight’ to a medical opinion, the ALJ
is not required to adopt every opinion expressed by the medical expert.”).
16
Cir. 2012)). Though far from perfect, the ALJ’s opinion sufficiently provided substantial
evidence to support her conclusion. Plaintiff’s assertion of error is therefore rejected.
V. RECOMMENDATION
For the above stated reasons, it is respectfully recommended that Plaintiff’s motion for
judgment on the administrative record (DE 14) be DENIED and the Commissioner’s decision be
AFFIRMED.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within fourteen (14) days of service of this Report and Recommendation and must state
with particularity the specific portions of this Report and Recommendation to which objection is
made. Failure to file written objections within the specified time can be deemed a waiver of the
right to appeal the District Court’s Order regarding the Report and Recommendation. See
Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); United States v. Walters,
638 F.2d 947 (6th Cir. 1981).
Respectfully submitted,
__________________________
BARBARA D. HOLMES
United States Magistrate Judge
17
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