ELLEN S. CARMODY, Magistrate Judge.
This is an action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review a final decision of the Commissioner of Social Security denying Plaintiff's claim for Supplemental Security Income (SSI) under Title XVI of the Social Security Act. Section 405(g) limits the Court to a review of the administrative record and provides that if the Commissioner's decision is supported by substantial evidence, it shall be conclusive. Pursuant to 28 U.S.C. § 636(b)(1)(B), authorizing United States Magistrate Judges to submit proposed findings of fact and recommendations for disposition of social security appeals, the undersigned recommends that the Commissioner's decision be
The Court's jurisdiction is confined to a review of the Commissioner's decision and of the record made in the administrative hearing process. See Willbanks v. Sec'y of Health and Human Services, 847 F.2d 301, 303 (6th Cir. 1988). The scope of judicial review in a social security case is limited to determining whether the Commissioner applied the proper legal standards in making her decision and whether there exists in the record substantial evidence supporting that decision. See Brainard v. Sec'y of Health and Human Services, 889 F.2d 679, 681 (6th Cir. 1989).
The Court may not conduct a de novo review of the case, resolve evidentiary conflicts, or decide questions of credibility. See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). It is the Commissioner who is charged with finding the facts relevant to an application for disability benefits, and her findings are conclusive provided they are supported by substantial evidence. See 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla, but less than a preponderance. See Cohen v. Sec'y of Dep't of Health and Human Services, 964 F.2d 524, 528 (6th Cir. 1992) (citations omitted). It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir. 1993). In determining the substantiality of the evidence, the Court must consider the evidence on the record as a whole and take into account whatever in the record fairly detracts from its weight. See Richardson v. Sec'y of Health and Human Services, 735 F.2d 962, 963 (6th Cir. 1984).
As has been widely recognized, the substantial evidence standard presupposes the existence of a zone within which the decision maker can properly rule either way, without judicial interference. See Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (citation omitted). This standard affords to the administrative decision maker considerable latitude, and indicates that a decision supported by substantial evidence will not be reversed simply because the evidence would have supported a contrary decision. See Bogle, 998 F.2d at 347; Mullen, 800 F.2d at 545.
Plaintiff was 28 years of age on his alleged disability onset date. (PageID.288). He successfully completed high school and worked previously as an industrial cleaner, paper sorter, and trimmer. (PageID.64-65). Plaintiff applied for benefits on March 27, 2014, alleging that he had been disabled since January 1, 2005, due to anger issues, arthritis and bone spurs in his knee, medial tendonitis in both feet, and attention deficit hyperactivity disorder (ADHD). (PageID.288-98, 332).
Plaintiff's application was denied, after which time he requested a hearing before an Administrative Law Judge (ALJ). (PageID.154-282). On August 17, 2016, Plaintiff appeared before ALJ Beth Contorer with testimony being offered by Plaintiff and a vocational expert. (PageID.88-152). Following the submission of additional medical evidence, the ALJ conducted a supplemental hearing on February 3, 2017. (PageID.73-86). In a written decision dated April 12, 2017, the ALJ determined that Plaintiff was not disabled. (PageID.56-66). The Appeals Council declined to review the ALJ's determination, rendering it the Commissioner's final decision in the matter. (PageID.41-46). Plaintiff subsequently initiated this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the ALJ's decision.
The social security regulations articulate a five-step sequential process for evaluating disability. See 20 C.F.R. §§ 404.1520(a-f), 416.920(a-f)
The burden of establishing the right to benefits rests squarely on Plaintiff's shoulders, and he can satisfy his burden by demonstrating that his impairments are so severe that he is unable to perform his previous work, and cannot, considering his age, education, and work experience, perform any other substantial gainful employment existing in significant numbers in the national economy. See 42 U.S.C. § 423(d)(2)(A); Cohen, 964 F.2d at 528. While the burden of proof shifts to the Commissioner at step five of the sequential evaluation process, Plaintiff bears the burden of proof through step four of the procedure, the point at which his residual functioning capacity (RFC) is determined. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997) (ALJ determines RFC at step four, at which point claimant bears the burden of proof).
The ALJ determined that Plaintiff suffered from: (1) congenital deformity of the right arm/hand; (2) bilateral knee osteoarthritis; (3) obesity; and (4) ANA titer suggestive of connective tissue disease, severe impairments that whether considered alone or in combination with other impairments, failed to satisfy the requirements of any impairment identified in the Listing of Impairments detailed in 20 C.F.R., Part 404, Subpart P, Appendix 1. (PageID.58-60). With respect to Plaintiff's residual functional capacity, the All determined that Plaintiff retained the capacity to perform sedentary work subject to the following limitations: (1) no pushing/pulling with his right (non-dominant) upper extremity; (2) no work involving the right (non-dominant) upper extremity; (3) he is limited to work that can be performed either standing or sitting, with the ability to alternate between positions up to four times hourly; (4) he cannot kneel on his right knee, but can occasionally kneel on his left knee; (5) he cannot climb ladders, ropes, or scaffolds; (6) he can occasionally crouch, crawl, and climb stairs; (7) he can frequently balance and stoop; (8) he can frequently operate foot pedals; and (9) he must avoid hazards including heights, vibration, and sharp objects. (PageID.60).
The ALJ found that Plaintiff was unable to perform his past relevant work at which point the burden of proof shifted to the Commissioner to establish by substantial evidence that a significant number of jobs exist in the national economy which Plaintiff could perform, his limitations notwithstanding. See Richardson, 735 F.2d at 964. While the ALJ is not required to question a vocational expert on this issue, "a finding supported by substantial evidence that a claimant has the vocational qualifications to perform
The vocational expert testified that there existed more than one million jobs in the national economy which an individual with Plaintiff's RFC could perform, such limitations notwithstanding. (PageID.134-52). This represents a significant number of jobs. See, e.g., Taskila v. Commissioner of Social Security, 819 F.3d 902, 905 (6th Cir. 2016) ("[s]ix thousand jobs in the United States fits comfortably within what this court and others have deemed `significant'").
In addition to Plaintiff's testimony at the administrative hearing, the administrative record contained less than 150 pages of medical treatment records and statements by Plaintiff. The ALJ described this evidence as follows:
(PageID.61-64).
As indicated above, the All discounted Plaintiff's subjective allegations of pain and limitation on the ground that such were inconsistent with the administrative record, specifically the medical evidence and Plaintiff's reported activities. (PageID.61-64). Plaintiff argues that he is entitled to relief because "the ALJ improperly overemphasized Plaintiff's daily activities" in assessing his credibility. Specifically, Plaintiff argues that the All equated his daily activities and recreational pursuits with "full time work." The Court is not persuaded.
As the Sixth Circuit has long recognized, "pain alone, if the result of a medical impairment, may be severe enough to constitute disability." King v. Heckler, 742 F.2d 968, 974 (6th Cir. 1984) (emphasis added); see also, Grecol v. Halter, 46 Fed. Appx. 773, 775 (6th Cir., Aug. 29, 2002) (same). As the relevant Social Security regulations make clear, however, a claimant's "statements about [his] pain or other symptoms will not alone establish that [he is] disabled." 20 C.F.R. § 404.1529(a); see also, Walters v. Commissioner of Social Security, 127 F.3d 525, 531 (6th Cir. 1997) (quoting 20 C.F.R. § 404.1529(a)) Hash v. Commissioner of Social Security, 309 Fed. Appx. 981, 989 (6th Cir., Feb. 10, 2009). Instead, a claimant's assertions of disabling pain and limitation are evaluated pursuant to the following standard.
First, it must be determined whether the claimant has a medically determinable impairment that could reasonably be expected to produce the claimant's alleged symptoms. See Titles II and XVI: Evaluation of Symptoms in Disability Claims, Social Security Ruling 16-3p, 2016 WL 1119029 at *3-4 (S.S.A., Mar. 16, 2016). Next, the intensity and persistence of the claimant's symptoms are evaluated to determine the extent to which such limit his ability to perform work-related activities. Id. at *4-9.
As the Sixth Circuit has repeatedly held, "subjective complaints may support a finding of disability only where objective medical evidence confirms the severity of the alleged symptoms." Workman v. Commissioner of Social Security, 105 Fed. Appx. 794, 801 (6th Cir., July 29, 2004). However, where the objective medical evidence fails to confirm the severity of a claimant's subjective allegations, the ALJ "has the power and discretion to weigh all of the evidence and to resolve the significant conflicts in the administrative record." Workman, 105 Fed. Appx. at 801 (citing Walters, 127 F.3d at 531).
In this respect, it is recognized that the ALJ's credibility assessment "must be accorded great weight and deference." Workman, 105 Fed. Appx. at 801 (citing Walters, 127 F.3d at 531); see also, Heston v. Commissioner of Social Security, 245 F.3d 528, 536 (6th Cir. 2001) ("[i]t is for the [Commissioner] and his examiner, as the fact-finders, to pass upon the credibility of the witnesses and weigh and evaluate their testimony"). It is not for this Court to reevaluate such evidence anew, and so long as the ALJ's determination is supported by substantial evidence, it must stand. The ALJ found Plaintiff's subjective allegations to not be fully credible, a finding that should not be lightly disregarded. See Varley v. Sect/ of Health and Human Services, 820 F.2d 777, 780 (6th Cir. 1987). As the Sixth Circuit has stated, "[w]e have held that an administrative law judge's credibility findings are virtually unchallengeable." Ritchie v. Commissioner of Social Security, 540 Fed. Appx. 508, 511 (6th Cir., Oct. 4, 2013) (citation omitted).
Nevertheless, the All is not permitted to assess a claimant's subjective allegations based upon "an intangible or intuitive notion about an individual's credibility." Rogers v. Commissioner of Social Security, 486 F.3d 234, 247 (6th Cir. 2007). Instead, the ALJ's rationale for discrediting a claimant's testimony "must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight." Id. at 248. Accordingly, "blanket assertions that the claimant is not believable will not pass muster, nor will explanations as to credibility which are not consistent with the entire record and the weight of the relevant evidence." Id.
The All did not state or even suggest that Plaintiff's daily activities and recreational pursuits were somehow equivalent to full-time work. Rather, the All properly assessed whether Plaintiff's daily activities and recreational pursuits were inconsistent with his assertion that he is precluded from working. It is well accepted that an ALJ is permitted to consider a claimant's activities and pursuits when assessing the weight to afford the claimant's subjective allegations of pain and limitation. See 20 C.F.R. § 416.929(c)(3)(i); Cruse v. Commissioner of Social Security, 502 F.3d 532, 542 (6th Cir. 2007) (ALJ can properly discount a claimant's subjective allegations which are inconsistent with his daily activities); Heston v. Commissioner of Social Security, 245 F.3d 528, 536 (6th Cir. 2001) (same).
The ALJ assessed the evidence of Plaintiff's daily activities and recreational pursuits and concluded that such were inconsistent with Plaintiff's allegations of disabling pain and limitation. Plaintiff testified that he participates in a competitive pool league "one or two nights a week" and, moreover, that this activity requires him to travel. (PageID.111-12). Plaintiff testified that he continues to drive an automobile. (PageID.112). Plaintiff testified that despite possessing medical insurance he does not take pain medication or participate in mental health treatment. (PageID.114-17). Plaintiff testified that he can walk "a couple hundred yards," stand for 10-15 minutes, and sit for 20-25 minutes. (PageID.121). Plaintiff's sister reported that Plaintiff regularly prepares meals, washes dishes, cleans the house, washes laundry, and mows the grass. (PageID.343). While Plaintiff's sister reported that Plaintiff cannot stand continuously when performing these activities, (PageID.343), this functional limitation is sufficiently accounted for in the ALJ's RFC determination. In sum, the ALJ's decision to discount Plaintiff's subjective allegations complies with the relevant legal standard and is supported by substantial evidence. Accordingly, this argument is rejected.
A claimant's RFC represents the "most [a claimant] can still do despite [her] limitations." Sullivan v. Commissioner of Social Security, 595 Fed. Appx. 502, 505 (6th Cir., Dec. 12, 2014); see also, Social Security Ruling 96-8P, 1996 WL 374184 at *1 (Social Security Administration, July 2, 1996) (a claimant's RFC represents her ability to perform "work-related physical and mental activities in a work setting on a regular and continuing basis," defined as "8 hours a day, for 5 days a week, or an equivalent work schedule"). As noted above, the ALJ concluded that Plaintiff can perform a limited range of sedentary work. Plaintiff argues that he is entitled to relief because the ALJ's RFC assessment does not account for his alleged intermittent explosive disorder. Plaintiff also argues that the ALJ improperly concluded that he can occasionally climb stairs and frequently balance.
The ALJ expressly considered Plaintiff's alleged issues concerning his temper. Specifically, the ALJ stated:
(PageID. 59).
As the evidence discussed above makes clear, this assessment is supported by substantial evidence. Plaintiff's argument in this regard is simply that the ALJ should have weighed the evidence of record differently or that this Court should re-weigh the evidence. However, such is not a basis for relief. See, e.g., Buxton v. Halter, 246 F.3d 762, 775 (6th Cir. 2001) (it is the ALJ's responsibility to weigh the evidence); Reynolds v. Commissioner of Social Security, 424 Fed. Appx. 411, 414 (6th Cir., Apr. 1, 2011) (the court "reviews the entire administrative record, but does not reconsider facts, re-weigh the evidence, resolve conflicts in the evidence, decide questions of credibility, or substitute its judgment for that of the ALF). Accordingly, this argument is rejected.
For the reasons stated herein, the undersigned recommends that the Commissioner's decision be
OBJECTIONS to this report and recommendation must be filed with the Clerk of Court within fourteen (14) days of the date of service of this notice. 28 U.S.C. § 636(b)(1)(C). Failure to file objections within such time waives the right to appeal the District Court's order. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
