TIMOTHY P. GREELEY, Magistrate Judge.
On January 7, 2013, Plaintiff Linda S. Leverich filed an application for supplemental security income (SSI) benefits. See Transcript of Administrative Hearing. (PageID.277-284). Plaintiff alleges that she became disabled due to nerve damage in her neck, an injured arm, depression, pain in her right leg, diabetic seizures, and brain damage. (PageID.319). Plaintiff's application was denied initially and Plaintiff requested an administrative hearing before an Administrative Law Judge (ALJ). ALJ Charles Arnold held a hearing on December 19, 2014. At the hearing, Plaintiff was represented by Kenneth Zarrillo. Plaintiff and Vocational Expert Jeffrey Carlisle testified. In a decision issued on February 27, 2015, the ALJ denied Plaintiff's claim for benefits. (PageID.44-55).
The ALJ found that Plaintiff could perform jobs that existed in significant numbers in the national economy given Plaintiff's residual functional capacity (RFC) and, therefore, concluded that Plaintiff was not under a "disability" as defined by the Social Security Act (20 C.F.R. § 416.920(g)). The ALJ's decision became the agency's final decision when the Appeals Council denied Plaintiff's request for review. Plaintiff now seeks judicial review of the agency's final decision denying her request for disability benefits.
Plaintiff was 53 at the time of the hearing and had an eleventh grade high school education. (PageID.40-41). Plaintiff had no income and was living with a family friend who was helping her financially. (PageID.41). Plaintiff had not worked since January 2013. Plaintiff could read and write. She lost her driver's license after she was arrested and received a fine related to prostitution. (PageID.41-42). She testified that she did "not really" drink alcohol, but that she had been arrested for driving under the influence about three or four years before the hearing. (PageID.42).
Plaintiff has severe pain from a neck injury that caused degeneration in her cervical spine at C5-C6. (PageID.43). The pain which radiates from her neck to her right arm feels better when she is lying down, but is worse after she wakes-up. Id. She describes the pain as sharp. Id. She has trouble writing for extended periods, and difficulty handling smaller objects such as buttons and zippers. (PageID.45). She experiences headaches once every three days and is sensitive to light. Id. She is unable to work when she gets headaches. (PageID.46). Plaintiff states that she also experiences severe pain in her left hip. (PageID.46-47). Plaintiff also described severe pain in her right arm that causes her to drop things. (PageID.48).
Plaintiff experiences daily depression that causes her to withdraw from other people and to cry at least weekly. (PageID.49-50). Plaintiff describes daily panic attacks or attacks at least a couple of times per week that cause her to hyperventilate and which could last all day. (PageID.51).
Plaintiff's hip causes her to experience discomfort while sitting. She feels like she can only sit for ten minutes before she needs to stand-up. (PageID.52). She can only stand-up for two to five minutes before she has to sit back down to gather her strength. Id. She can only walk for about 30 feet and cannot lift anything without dropping. (PageID.53). Plaintiff testified that she spends her average day watching television, sitting down, making her bed, and doing dishes, but she cannot hold things. (PageID.54). Plaintiff is unable to cook a full meal because she cannot stand, but is able to use a microwave to make something quick. (PageID.55). She has trouble dressing due to her hip. Id. She shops for groceries by holding onto the cart. (PageID.56). She has trouble sleeping due to neck pain and usually takes one or two half hour or longer naps during the day. Id.
The vocational expert testified that Plaintiff had worked as an unskilled worker at a heavy exertion level in her past employment as a nursery laborer, and as a semi-skilled worker at a sedentary level as a telemarketer. (PageID.57). Based upon her functional capacity, the ALJ placed restrictions on Plaintiff's ability to perform light, low stress work that had no production demands, and involves simple, routine, repetitive tasks with simple job instructions, that did not involve any interaction with the general public, minimal contact with co-workers, with the additional limitations of no constant handling, feeling, fingering, or grasping with the right hand. (PageID.58). The vocational expert testified that Plaintiff could perform jobs such as a cleaner in a housekeeping setting (DOT number 323.687-014), with 10,000 jobs statewide and 130,000 jobs nationally, as an advertising material distributor (DOT number 230.687-010), with 1,200 jobs statewide and 48,000 jobs nationally, and as sales attendant (DOT number 299.677-010), with 15,000 jobs statewide and 205,000 jobs nationally. (PageID.59). The vocational expert testified that if an individual was limited to only occasional handling and fingering with the dominant right arm, that restriction would eliminate the individual from competitive employment. (PageID.60).
The ALJ determined that Plaintiff suffers from degenerative disc disease of the cervical spine, osteoarthritis, and depression/anxiety disorder. (PageID.46). Based on these conditions and the ALJ's determination of Plaintiff's physical and mental capabilities, the ALJ concluded that Plaintiff could not perform her past relevant work as a nursery worker and a telemarketer. (PageID.53). However, the ALJ concluded that there were other jobs existing in significant numbers in the state and national economy that Plaintiff could perform. (PageID.54).
After the Appeals Council denied Plaintiff's appeal, Plaintiff filed this action asserting that the ALJ's decision to deny SSI benefits was improper because the jobs the ALJ stated that Plaintiff could perform are inconsistent with the ALJ's finding that Plaintiff must not have interaction with the public. Plaintiff points out that each of the positions require interaction with the public in a public setting according to their definitions in the Dictionary of Occupational Titles (DOT). Plaintiff further argues that the ALJ failed to consider the requirement based upon the consultant examiner's medical recommendation that Plaintiff needed use of an assistance device, such as a cane or walker. Plaintiff also asserts that the Appeals Council failed to properly consider new and additional medical evidence relating to Plaintiff's injuries after she was struck by a vehicle. The Commissioner has filed a response arguing that the ALJ decision is supported by substantial evidence. The Commissioner attached the medical evidence relating to the vehicle accident that Plaintiff provided to the Appeals Council. Plaintiff has filed a motion to strike that evidence arguing that it is improper for the Court to consider that new evidence because the ALJ never considered it in making his decision.
"[R]eview of the ALJ's decision is limited to whether the ALJ applied the correct legal standards and whether the findings of the ALJ are supported by substantial evidence." Winslow v. Comm'r of Soc. Sec., 566 Fed. App'x 418, 420 (6th Cir. 2014) (quoting Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009)); see also 42 U.S.C. § 405(g). The findings of the ALJ are conclusive if they are supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is defined as more than a mere scintilla of evidence but "such relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Jones v. Sec'y, Health & Human Servs., 945 F.2d 1365, 1369 (6th Cir. 1991). This Court is not permitted to try the case de novo, nor resolve conflicts in the evidence and cannot decide questions of credibility. Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); see Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003) (noting the ALJ's decision cannot be overturned if sufficient evidence supports the decision regardless of whether evidence also supports a contradictory conclusion). This Court is required to examine the administrative record as a whole and affirm the Commissioner's decision if it is supported by substantial evidence, even if this Court would have decided the matter differently. See Kinsella v. Schwikers, 708 F.2d 1058, 1059 (6th Cir. 1983); see also Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (holding that the court must affirm a Commissioner even if substantial evidence would support the opposite conclusion).
The ALJ must employ a five-step sequential analysis to determine if Plaintiff is under a disability as defined by the Social Security Act. Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004). If the ALJ determines Plaintiff is or is not disabled under a step, the analysis ceases and Plaintiff is declared as such. 20 C.F.R. § 404.1520(a). Steps four and five use the residual functional capacity assessment in evaluating the claim. Id.
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since the application date for SSI benefits on January 7, 2013. (PageID.46). At step two, the ALJ determined that Plaintiff had the following severe impairments: degenerative disc disease of the cervical spine, osteoarthritis, depression/anxiety disorder. The ALJ determined that Plaintiff had a successful treatment history for diabetic seizures and hypoglycemia. (PageID.46). At step three, the ALJ determined that Plaintiff's impairments or a combination of impairments did not meet or medically equal the severity of one of the listed impairments in 20 C.F.R. part 404, Subpart P, Appendix 1. (PageID.47). At step four, the ALJ determined that Plaintiff has the residual functional capacity to perform light work, as defined in 20 C.F.R. § 416.967(b), with additional limitations: no constant handling, fingering, feeling or grasping with the right hand and low stress work, no high production demands; only simply routine, repetitive tasks with simple instructions, no interaction with the public and only minimal contact with others at the worksite. (PageID.48). At step five, the ALJ concluded that Plaintiff could not perform past relevant work, but that there were jobs available in significant numbers in the Florida state economy and the national economy, such as cleaner/housekeeper, DOT Code 323.687-014 (10,000 state jobs, 130,000 national jobs), Advertising Material Distributor, DOT Code 230.687-010 (1,200 state jobs, 48,000 national jobs), and Sales Attendant, DOT Code 299.677-010 (15,000 state jobs, 205,000 national jobs). Therefore, the ALJ determined that Plaintiff was not disabled as defined under the Social Security Act, since January 7, 2013. (PageID.54-55).
Plaintiff contends that the ALJ committed reversible error by (1) by failing to consider that the jobs relied upon to deny benefits were inconsistent with the RFC finding, and (2) by failing to consider that Plaintiff needed use of an assistive device such as a walker or a cane. In addition, Plaintiff claims that the Appeals Council erred by failing to determine that the new medical evidence showing that Plaintiff fractured her pelvis and right tibia after being struck by an automobile three weeks prior to the ALJ's decision was a basis for a remand.
Plaintiff argues that the occupations that the ALJ concluded that she can perform each require contact with the public in contradiction to the limitations imposed by the ALJ. Therefore, Plaintiff argues that substantial evidence does not exist to support the ALJ's conclusion that jobs exist at the light exertional level that Plaintiff is able to perform. The ALJ found that Plaintiff could have "no interaction with the public." (PageID.48, 52). The ALJ accepted the vocational expert testimony that Plaintiff could perform the following jobs:
After the vocational expert set forth these examples, the ALJ asked if the expert's opinion was consistent with the Dictionary of Occupational Titles:
(PageID.83).
The ALJ has a duty under SSR. 00-4p to ask the vocational expert whether the testimony conflicts with the information provided in the Dictionary of Occupational Titles. Lindsley v. Comm'r of Soc. Sec., 560 F.3d 601, 603 (6th Cir. 2009). The "ALJ is under no obligation to investigate the accuracy of the VE's testimony beyond the inquiry specified by SSR 00-4p." Saunders v. Comm'r of Soc. Sec., 2010 WL 1132286 (W.D. Mich. 2010), citing Lindsley at 606. Rather, it is Plaintiff's representative's duty to raise any conflicts in the vocational expert's testimony and the Dictionary of Occupational Titles. See Saunders and Johnson v. Comm'r of Soc. Sec., 2013 WL 1703894 (W.D. Mich. 2013) (where counsel fails to bring to the ALJ's attention discrepancies or conflicts with the Dictionary of Occupational Titles, it is too late to seek relief in federal court on such a ground). In this case, the ALJ fulfilled his duty under SSR 00-4p when he asked the vocational expert if his testimony was consistent with the Dictionary of Occupational Titles. Plaintiff's representative did not make any further inquiries regarding the positions that the vocational expert testified Plaintiff had the capacity to perform.
Plaintiff argues that each of the positions involve communication with the public and that contradicts the finding of the ALJ that Plaintiff could not interact with the public. The Dictionary of Occupational Titles refers to the "collective description" of jobs and each description "refers to a grouping of numerous individual jobs with similar duties. Lindsley, at 605. Plaintiff must show that she was unable to perform each of the jobs of the representative occupations. Martin v. Comm'r of Soc. Sec., 170 Fed. Appx. 369, 374 (6th Cir. 2006) ("Furthermore, even if the two positions about which there were inconsistencies had been excluded, the ALJ still could have reasonably found that Martin could perform the third position as assembler."); Joyce v. Comm'r of Soc. Sec. 662 Fed. Appx. 430, 437 (6th Cir. 2016) (Despite the ALJ's failure to inquire about the inconsistencies, Plaintiff does not argue that she was unable to perform each of the representative occupations.)
Even assuming that the ALJ erred by not questioning the vocational expert further regarding the need to interact with the public in order to perform the duties of a sales attendant, the ALJ was not required to question the vocational expert further as to the job duties of a cleaner/housekeeper or advertising materials distributor. On their face, the cleaner/housekeeper and advertising materials distributor occupations do not obviously require interaction with the public. The Dictionary of Occupational Titles does not define these positions as necessarily requiring interaction with the public for all occupations under the definition. It was reasonable for the ALJ to determine that these positions did not involve interaction with the public. The ALJ's failure to inquire further regarding the exact job duties of these positions is not reversible error and does not require a remand.
Plaintiff argues that the ALJ erred by failing to consider her need for a handheld assistive device, such a walker or a cane. Specifically, state agency examiner Dr. Ijewere, M.D., found that Plaintiff immediately needed a wheelchair due to right hip and back issues and pain relief (PageID.436-442). Dr. Sergio B. Seoane prescribed a cane for Plaintiff, but the prescription was not dated (PageID.652). The ALJ rejected this opinion based upon the totality of the medical evidence. The ALJ explained:
(PageID.52-53) (citations omitted).
The ALJ considered Dr. Ijewere's opinion that Plaintiff needed a wheelchair and Dr. Seone's undated prescription for a cane. In rejecting Plaintiff's need for a cane or wheelchair, the ALJ considered the objective medical evidence that showed only mild to moderate abnormalities. In addition, the ALJ considered Dr. Cross and Dr. Troiano's opinions that Plaintiff was able to perform light work. Both Dr. Cross and Dr. Troiano specifically rejected Dr. Ijewere's opinion that Plaintiff needed a wheelchair, finding inconsistencies in the report. Dr. Cross wrote:
(PageID.161).
Dr. Troiano explained that the Dr. Ijewere relied heavily on Plaintiff's subjective report of her symptoms and his report was inconsistent and not based upon the totality of the evidence. (PageID.183). Dr. Troiano found:
(PageID.183).
There is conflicting medical opinion evidence in the record regarding Plaintiff's ability to ambulate with or without an assistive device. The objective medical evidence did not support a need for an assistive device showing only mild to moderate abnormalities. It is clear that the ALJ considered all the medical evidence and medical opinions in considering whether Plaintiff could perform light work with limitations. "Where the opinion of a treating physician is not supported by objective evidence or is inconsistent with other medical evidence in the record, this Court generally will uphold an ALJ's decision to discount that opinion." Price v. Comm'r of Soc. Sec., 342 Fed. Appx 172, 175-176 (6th Cir. 2009) citing Combs v. Comm'r of Soc. Sec., 459 F.3d 640, 652 (6th Cir. 2006); Warner v. Comm'r of Soc. Sec., 375 F.3d at 391-92, Martin v. Comm'r of Soc. Sec., 170 Fed. Appx. 369, 372-73 (6th Cir. 2006); Ford v. Comm'r of Soc. Sec., 114 Fed. Appx. 194, 197 (6th Cir. 2004). Substantial evidence exists in the record to support the ALJ's conclusion that Plaintiff had the functional capacity for work.
Plaintiff argues that the Appeals Council erred by upholding the ALJ's decision, despite receiving new and material evidence relating to a motor vehicle accident that occurred on February 2, 2015, which was just before the ALJ issued his February 24, 2015 decision. Plaintiff submitted 71 pages of new medical records evidence relating to a motor vehicle accident, which occurred three weeks before the ALJ issued his decision. Plaintiff alleges that she fractured her pelvis and right tibia as a result of the accident. Plaintiff alleges that this evidence would have changed the outcome of this case if the ALJ could have considered this evidence. Plaintiff requests a remand so that this additional evidence may be considered.
It is first noted that this Court does not have jurisdiction to reverse the decision of the Appeals Council. Saunders at 2 ("This court must base its review of the ALJ's decision upon the administrative record presented to the ALJ."). Remand to the Commissioner is the only remedy available to this court when new material evidence would likely change the outcome of this case.
Pursuant to 42 U.S.C. § 405(g), sentence four states:
Sentence six states in relevant part:
The three requirements for a sentence six remand are: (1) that the evidence is new, (2) that the evidence is material, and (3) that good cause is shown why the evidence was not submitted to the ALJ. Gillaspy, 178 Soc. Sec. Rep. Serv. at *5. These requirements are fully explained in Foster v. Halter:
Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). The Sixth Circuit has used a strict test for the "good cause" requirement in that "[t]he claimant must give a valid reason for failing to obtain relevant examinations prior to the hearing." Cotton v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993).
The Commissioner argues that the evidence is not new and is not material. The Commissioner concedes that good cause existed for not presenting the medical records relating to the motor vehicle accident prior to the issuance of the ALJ's decision. However, the Commissioner argues that since the records were in existence prior to the ALJ's decision, the evidence fails to satisfy the "new" evidence requirement. Plaintiff presented medical records relating to the motor vehicle accident to the Appeals Council (PageID.683-723). Those records report that Plaintiff "demonstrates that she has regained her capacity to make her own decisions (PageID.683). Further, although Plaintiff suffered a fractured tibia and pelvis, the records do not reveal that she would not recover from her injuries. Clearly, the medical records were in existence prior to the ALJ's decision. Evidence is not new if it was in existence prior to the ALJ's decision. Franson v. Comm'r of Soc. Sec., 556 F.Supp.2d 716, 724 (W.D. Mich. 2008).
Evidence is "material" for a sentence six remand only if the Commissioner reasonably could have decided the disability claim differently with the new evidence. Sizemore v. Sec'y of Health & Human Servs., 865 F.2d 709, 711 (6th Cir. 1988). Plaintiff has not made that showing. Interestingly, the Commissioner has presented additional medical records in her brief that post-date the records that Plaintiff submitted to the Appeals Council. These records were obtained from Plaintiff's most recent application for disability benefits. Plaintiff requests that the Court not consider these additional records, and has filed a motion to strike. Accordingly, the Court will grant Plaintiff's motion to strike those records. The record does not establish that a remand is appropriate in this case, because Plaintiff has failed to show that the "claimed "new" records could have caused the Commissioner to decide the claim differently. There is substantial evidence in the record that supports the Commissioner's decision that Plaintiff is not disabled as defined by the Social Security Administration.
Accordingly, the decision of the Commissioner is AFFIRMED and Plaintiff's request for relief is DENIED. In addition, Plaintiff's motion to strike (ECF No. 7) is GRANTED, Plaintiff's request to file an additional brief is DENIED.
