SUSAN K. LEE, Magistrate Judge.
Plaintiff Cassandra Jackson ("Plaintiff") brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") terminating her disability insurance benefits
Plaintiff previously applied for DIB on March 15, 2006, alleging disability as of February 15, 2005 [Doc. 14 ("Tr.") at Page ID # 171]. On March 28, 2008, an administrative law judge ("ALJ") found Plaintiff had the following severe impairments: disc herniation with severe stenosis and degenerative disc disease of the right hip [Tr. 102]. The ALJ did not identify any other, non-severe impairments. The ALJ found Plaintiff "was unable to sustain any work physically due to the combined effects of her impairments." (Tr. 102). Accordingly, the ALJ found Plaintiff to be disabled as of her alleged onset date of February 15, 2005, through the date of the decision on March 28, 2008 (Tr. 104).
On October 24, 2014, after a continuing disability review, the Social Security Administration (the "SSA") issued a Notice of Disability Cessation to Plaintiff, informing her that the SSA found her health had improved since the original ALJ's decision on March 28, 2008 (Tr. 109-12). The March 28, 2008, date is referred to in the disability review process as the comparison point decision date ("CPD"). Plaintiff was informed she was no longer considered disabled and would stop receiving benefits by the end of the year (Tr. 109-12). On July 21, 2015, a disability hearing officer upheld this determination (Tr. 128-36).
On July 28, 2015, Plaintiff requested a hearing before an ALJ concerning the cessation of her benefits (Tr. 139). After one continuance, the hearing was held on December 20, 2016, in Chattanooga, Tennessee (Tr. 86, 29-66). On March 13, 2017, the new ALJ issued her decision, finding that as of October 1, 2014, Plaintiff was no longer under a disability as defined in the Social Security Act, therefore affirming the cessation of Plaintiff's benefits (Tr. 21). The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner (Tr. 3-9). Plaintiff timely filed the instant action [Doc. 1].
Plaintiff was born on December 21, 1961 (Tr. 20), making her a "younger individual age 18-44" on the alleged onset date, and 46 years old at the time of the original ALJ's decision. She has at least a bachelor's degree, and is able to communicate in English (Tr. 53, 103, 524). She has past relevant work as a waitress, which is considered semi-skilled light work (Tr. 20). On the benefits cessation date of October 1, 2014, Plaintiff was 52 years old, which is considered "closely approaching advanced age" (Tr. 20). She was 55 as of the date of the new ALJ's decision, which is considered "advanced age."
Plaintiff [Doc. 19 at Page ID # 1240-41] and Defendant [Doc. 21 at Page ID # 1250-52] both discuss the medical evidence they believe is relevant in their respective briefs. The ALJ discussed many of Plaintiff's medical records dating after the benefits cessation date (Tr. 15-16, 18-20). While there is no need to summarize the medical records herein, the relevant records have been comprehensively reviewed.
At the hearing before the ALJ on December 20, 2016, Plaintiff, a vocational expert ("VE"), and Plaintiff's friend testified. Although she was informed of her right to hire counsel, Plaintiff represented herself at the hearing. The the transcript of the testimony from the hearing has also been carefully reviewed (Tr. 29-66).
A person's continued entitlement to DIB must be reviewed periodically. 20 C.F.R. § 404.1594(a).
ALJs use an eight-step process to determine whether a DIB recipient continues to be entitled to benefits. The first two steps require the ALJ to determine whether a claimant is currently engaging in substantial gainful activity and if not, whether the claimant has an impairment or combination of impairments that meets one of the listings. 20 C.F.R. § 404.1594(f)(1)-(2). If not, then at step three, the ALJ must determine whether there has been a "medical improvement." Id. § 404.1594(f)(3).
"Medical improvement" is defined as:
Id. § 404.1594(b)(1).
To determine whether the claimant's impairments have "improved," the ALJ uses the CPD, which is defined as "the most recent favorable medical decision that you were disabled or continued to be disabled," as a reference point. Id. § 404.1594(b)(7). If at the time of the disability review, a claimant's impairments are less severe than they were at the CPD, then a medical improvement has occurred, and the ALJ must proceed to step four and determine whether the improvement is related to the claimant's ability to work. Id. § 404.1594(f)(4). This requires the ALJ to assess the claimant's current RFC and compare it to her RFC at the time of the CPD. Step five requires the ALJ to consider whether an exception applies. Id. § 404.1594(f)(5).
If medical improvement related to a claimant's ability to work has occurred, the Commissioner still must generally show the claimant is "currently able to engage in substantial gainful activity before [the Agency] can find that [the claimant] is no longer disabled." Id. § 404.1594(a). Accordingly, if the claimant's ability to work has increased due to her medical improvement, the ALJ proceeds to step six and determines whether the recipient's current impairments are "severe," or in other words, whether they "significantly" affect her ability to perform work. Id. § 404.1594(f)(6). If they are not severe, the recipient's disability has ended. Id. If they are severe, at step seven the ALJ asks whether the recipient can still perform work she has done in the past or, failing that, other work (step eight). Id. § 404.1594(f)(7)-(8). At this step, "the implementing regulations incorporate many of the standards set forth in regulations governing initial disability determinations." Kennedy, 247 F. App'x at 765 (citing 20 C.F.R. § 404.1594(b)(5), (f)(7)). "The difference, of course, is that the ultimate burden of proof lies with the Commissioner in termination proceedings." Id. (citing 20 C.F.R. § 404.1594(b); Griego v. Sullivan, 940 F.2d 942, 944 (5th Cir. 1991)).
In this case, the ALJ identified the March 28, 2008, disability decision date as the CPD (Tr. 14). She stated that at the time of the CPD, Plaintiff had a medically determination impairment of "degenerative disc disease."
As mentioned, the ALJ did not apply any exception to the medical improvement requirement, and proceeded to determine Plaintiff's severe impairments (identified above) at step six. At step seven, applying Plaintiff's October 1, 2014, RFC, the ALJ found Plaintiff could perform her past relevant work of waitressing (Tr. 20). In the alternative, at step eight, the ALJ determined Plaintiff could also perform other work existing in significant numbers in the national economy including assembly worker, production inspector, and hand packer (Tr. 20-21). These findings led to the ALJ's determination that Plaintiff's disability ended as of October 1, 2014;, which resulted in the termination of her benefits (Tr. 21).
Plaintiff argues this matter should be reversed and remanded for the reinstatement of benefits, or in the alternative for further proceedings. She asserts the ALJ made the following three harmful errors: (1) "The ALJ made no factual discussion in articulating specifically what improvements she believed to exist from the [CPD]." (2) "There actually wasn't any medical improvement, and the date selected by the ALJ makes no sense in the context of the facts of Record." (3) "The ALJ obtained proof after the hearing on the issue of cessation and in review of the Record the added exhibits were not proffered to the claimant for review, comment or argument." [Doc. 19 at Page ID # 1238]. Defendant counters that substantial evidence supports the ALJ's determinations that a medical improvement occurred after the CPD and that Plaintiff was no longer disabled as of October 1, 2014 [Doc. 21 at Page ID # 1250-54]. Defendant also disputes that any failure by the ALJ to proffer the exhibits does not require remand [id. at Page ID # 1252].
The Social Security Act authorizes "two types of remand: (1) a post judgment remand in conjunction with a decision affirming, modifying, or reversing a decision of the [Commissioner] (a sentence-four remand); and (2) a pre-judgment remand for consideration of new and material evidence that for good cause was not previously presented to the [Commissioner] (a sentence-six remand)." Faucher v. Sec'y of Health and Human Servs., 17 F.3d 171, 174 (6th Cir. 1994) (Citing 42 U.S.C. § 405(g)). Under a sentence-four remand, the court has the authority to "enter, upon the pleadings and transcript of the record, a judgment affirming, denying, or reversing the decision of the [Commissioner], with or without remanding the cause for a hearing." 42 U.S.C. § 405(g). Where there is insufficient support for the ALJ's findings, "the appropriate remedy is reversal and a sentence-four remand for further consideration." Morgan v. Astrue, No. 10-207, 2011 WL 2292305, at *8 (E.D. Ky. June 8, 2011) (citing Faucher, 17 F.3d at 174).
A court must affirm the Commissioner's decision unless it rests on an incorrect legal standard or is unsupported by substantial evidence. 42 U.S.C. § 405(g); McClanahan v. Comm'r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (citations omitted). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." McClanahan, 474 F.3d at 833 (citations omitted). Furthermore, the evidence must be "substantial" in light of the record as a whole, "tak[ing] into account whatever in the record fairly detracts from its weight." Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984) (citations omitted). If there is substantial evidence to support the Commissioner's findings, they should be affirmed, even if the court might have decided facts differently, or if substantial evidence would also have supported other findings. Smith v. Chater, 99 F.3d 780, 782 (6th Cir. 1996); Ross v. Richardson, 440 F.2d 690, 691 (6th Cir. 1971). The court may not re-weigh evidence, resolve conflicts in evidence, or decide questions of credibility. Garner, 745 F.2d at 387. The substantial evidence standard allows considerable latitude to administrative decision makers because it presupposes "there is a `zone of choice' within which the Commissioner can act, without the fear of court interference." McClanahan, 474 F.3d at 833 (quoting Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001)).
The court may consider any evidence in the record, regardless of whether it has been cited by the ALJ. Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The court may not, however, consider any evidence that was not before the ALJ for purposes of substantial evidence review. Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Furthermore, the court is under no obligation to scour the record for errors not identified by the claimant, Howington v. Astrue, No. 2:08-CV-189, 2009 WL 2579620, at *6 (E.D. Tenn. Aug. 18, 2009) (stating that assignments of error not made by claimant were waived), and arguments not raised and supported in more than a perfunctory manner may be deemed waived, Woods v. Comm'r of Soc. Sec., No. 1:08-CV-651, 2009 WL 3153153, at *7 (W.D. Mich. Sept. 29, 2009) (citing McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997)) (noting that conclusory claims of error without further argument or authority may be considered waived).
"Medical improvement `is determined by a comparison of prior and current medical evidence.'" Kennedy, 247 F. App'x at 765 (quoting 20 C.F.R. § 404.1594(c)(1)). As mentioned above, the determination "must be based on changes (improvement) in the symptoms, signs and/or laboratory findings associated with [a claimant's] impairment(s)." 20 C.F.R. § 1594(b)(1). In Kennedy, the court found the ALJ properly pointed out the claimant's then-current functional abilities, but failed to make the required comparison. Id. ("While the ALJ correctly pointed out various possessed by Kennedy, . . . no effort was made by the ALJ nor any medical source to compare her abilities or her limitations to those possessed at the time of the initial determination." (emphasis in original)). Given that Kennedy appeared to have the same or similar functional abilities at the time of the initial determination as the ones at the time of the ALJ's review, the court found the ALJ's conclusion that she had experienced medical improvement was not supported by substantial evidence. Id. at 765-66. In Taylor v. Berryhill, No. 17-44-DLB, 2018 WL 473015 (E.D. Ky. Jan. 18, 2018), a district court affirmed a termination of benefits. The original ALJ in that case awarded benefits, but specifically recommended review for medical improvement within 12 months of the favorable decision, because Taylor was expected to improve "with appropriate treatment." Id. at *1. The reviewing ALJ did find Taylor had experienced medical improvement relevant to his ability to work in March 2013. In upholding the ALJ's findings, the court emphasized: "Specifically, the ALJ relied on the surgical repair of Plaintiff's left rotator cuff and the medical records from mid-2012, which demonstrate that `he was reporting no residual problems relating to his left shoulder.'" Id. at *6 (citation to administrative record omitted) (further noting the "ALJ provided a detailed analysis of the medical history of Plaintiff's left shoulder").
In this case, the original ALJ, who awarded benefits (hereafter, "ALJ Soto"), found Plaintiff's severe impairments were disc herniation with severe stenosis and degenerative joint disease of the right hip. ALJ Soto supported these findings with the following:
(Tr. 102 (citations to the administrative record omitted)). ALJ Soto credited Dr. Cyleman's opinion and found Plaintiff's allegations credible. He rejected the opinions of the State agency consultants, finding they did not adequately consider Plaintiff's subjective complaints or the combined effect of her impairments (Tr. 102-03).
ALJ Soto did not mention any psychological issues or any issues relating to diabetes or cervical neck pain. Accordingly, the discussion by the reviewing ALJ (hereafter, "ALJ Morehead") concerning these impairments is not relevant to determining whether there is substantial support for her determinations concerning medical improvement (though that discussion would be relevant for evaluating her assessment of Plaintiff's current RFC). The relevant impairments for the medical improvement comparison are those relating to Plaintiff's lower back (lumbar region), and her hips. See Watts v. Comm'r of Soc. Sec., 179 F. App'x 290, 294 (6th Cir. 2006) (affirming termination of benefits, noting that depression and respiratory problems "were not part of" earlier disability determinations, and therefore did "not alter" the review of the disability cessation determination); Booms v. Comm'r of Soc. Sec., 277 F.2d 739, 744 (6th Cir. 2003) ("Once it is accepted that the plaintiff was disabled prior to January 2, 1998, the issue in this case becomes whether the plaintiff's physical impairments that resulted in the disability finding dissipated. . . .").
Under the heading, "Medical improvement occurred as of October 1, 2014," ALJ Morehead simply states: "The medical evidence supports a finding that, as of October 1, 2014, there had been a decrease medical severity of the impairment present at the time of the CPD." (Tr. 16). While it would have been helpful for ALJ Morehead to give an explanation as to what evidence demonstrates an improvement in which impairment(s) directly under this heading, I
ALJ Morehead did not specifically mention Plaintiff's hip impairment anywhere in her decision, although she did note Plaintiff had a normal musculoskeletal exam in October 2013
Both decisions discuss the evidence concerning Plaintiff's lower back impairments to a greater extent than the hip impairments. In 2008, ALJ Soto described how diagnostic testing in 2005 led to a diagnosis of lumbar spondylosis, and a 2007 MRI showed "herniation with marked disc space narrowing and severe bilateral foraminal stenosis with posterior displacement of both S1 nerve roots." (Tr. 102).
ALJ Morehead did not address the 2005 testing, the 2007 MRI, or the opinion evidence from the prior decision, none of which appears to be in the record. She noted the following concerning Plaintiff's lumbar region: Plaintiff's musculoskeletal examination was unremarkable in October 2013, with normal range of motion and no "spinal abnormalities" (Tr. 18); Dr. Goewey observed lumbar tenderness in August 2014; Plaintiff's medical providers observed reduced range of motion in her lumbar spine in 2015 (Tr. 15); lumbar imaging in August 2015 revealed "`mild' spondylosis without significant central canal stenosis, and `mild' stenosis at L5-S1" (Tr. 18); a February 2016 MRI revealed "multilevel degenerative disc disease with postsurgical changes and bilateral neural stenosis at L5-S1" (Tr. 15); and lumbar imaging in November 2016 revealed "no acute fracture or misalignment with stable degenerative changes and stable changes post laminectomies" (Tr. 18).
ALJ Morehead also discussed Plaintiff's activities of daily living, which primarily consist of caring for her severely disabled son and attending church, her purported lack of meaningful participation in Dr. Goewey's exam, and inconsistencies among her various reports of medication side effects (Tr. 17-18). ALJ Morehead also gave great weight to the State agency consultant's October 2014 opinion, which states that medical improvement "appears to have occurred since surgery," and that the medical evidence "would support a restricted RFC 20/10/6/6 with postural limited to occas[ional] (except climbing l/s/r never) due to previous surgery + fibromyalgia." (Tr. 560, 19).
Plaintiff argues:
Based on the assembled Record, there is no reasonable way to conclude that the claimant's medical conditions "improved" between 2008 and October of 2014, or indeed, at any time since.
[Doc. 19 at Page ID # 1241-42 (citations to Tr. omitted)].
I note the November 2015 surgery related to Plaintiff's neck, not her lumbar region (Tr. 1026). Nevertheless, Plaintiff did have a second lumbar surgery
This is a close case. In 2008, ALJ Soto described Plaintiff's bilateral foraminal stenosis as "severe," as demonstrated by an MRI showing a "large diffuse disc herniation with marked disc space narrowing," and "posterior displacement of both S1 nerve roots." (TR. 102). There does appear to be a lessening of the severity of stenosis in the later imaging studies discussed by ALJ Morehead.
ALJ Morehead's characterization of Plaintiff's activities of daily living as "active" and "diverse" is fairly well-supported in the record, although when she concluded Plaintiff "provides near total care for her son" (Tr. 19), she did not address Plaintiff's testimony that the child "goes to Orange Grove, so he gives me enough time that I can actually take my meds, that a lot of times knock me out, and I can sleep through that error" (Tr. 43). There was no further explanation of how long he was at Orange Grove, what care they gave him versus what Plaintiff was responsible for, etc. Additionally, Plaintiff testified her son was born in 2001, therefore her activities of daily living at the time of the CPD may have been similar to the ones described by ALJ Morehead, but maybe not. ALJ Soto's decision does not address her activities of daily living, nor were they discussed in the 2008 hearing, perhaps because counsel did not represent Plaintiff.
On balance, I
Plaintiff points out ALJ Morehead added Exhibits B26F to B29F to the record after the administrative hearing. Plaintiff argues she did not have an opportunity to "make comment, argument or objection" to this evidence, which she contends constitutes harmful error [Doc. 19 at Page ID # 1242-43]. Plaintiff fails to adequately develop her argument on this issue. She cites two regulations: 20 C.F.R. § 404.949, which allows parties to make written statements and oral arguments to ALJs; and 20 C.F.R. § 404.950, which provides that parties may waive their right to appear at a hearing, describes what constitutes relevant evidence at a hearing, and allows parties and ALJs to subpoena proof. Why these regulations require a finding of harmful error is not obvious from the plain meaning of their text, and Plaintiff fails to give even the slightest explanation in support of her argument. Accordingly, she has waived it. See Woods, 2009 WL 3153153, at *7 (citing McPherson, 125 F.3d at 995-96). Moreover, if the above recommendation concerning remand for lack of substantial evidence regarding medical improvement is adopted, the issue concerning post-hearing evidence would be
Having carefully reviewed the administrative record and the parties' arguments, I