THOMAS M. ROSE, District Judge.
Addison Dunmore ("Dunmore") brought this action pursuant to 42 U.S.C. § 405(g) for judicial review of the decision of the Defendant Commissioner of Social Security (the "Commissioner") that he is not disabled and, therefore, not entitled to Social Security disability benefits. On January 30, 2013, United States Magistrate Judge Michael J. Newman entered a Report and Recommendations (doc. #14) recommending that the Commissioner's Decision be affirmed. Dunmore subsequently filed Objections (doc. #15) and the Commissioner has responded to Dunmore's Objections (doc. #16). This matter is, therefore, ripe for decision.
Dunmore sought financial assistance from the Social Security Administration by applying for Supplemental Security Income ("SSI") and disability insurance benefits ("DIB") in April of 2008. Dunmore claimed that he was disabled since April 11, 2008, due to high blood pressure, heart
The Commissioner denied Dunmore's application initially and on reconsideration. Administrative Law Judge ("ALJ") Amelia Lombardo ("Lombardo") held a hearing following which she determined that Dunmore is not disabled. The Appeals Council denied Dunmore's request for review and ALJ Lombardo's decision became the Commissioner's final decision. Dunmore then appealed to this Court pursuant to 42 U.S.C. § 405(g).
As required by 28 U.S.C. § 636(b) and Federal Rules of Civil Procedure Rule 72(b), the District Judge has made a de novo review of the record in this case. Based upon the reasoning and citations of authority set forth in the Magistrate Judge's Report and Recommendations (doc. #14) and in Dunmore's Objections (doc. #15) and the Commissioner's Response (doc. #16), as well as upon a thorough de novo review of this Court's file and a thorough review of the applicable law, this Court adopts the aforesaid Report and Recommendations in its entirety and, in so doing affirms the Commissioner's decision that Dunmore is not disabled in accordance with Social Security regulations.
This Court's function is to determine whether the record as a whole contains substantial evidence to support the ALJ's decision. Bowen v. Commissioner of Social Security, 478 F.3d 742, 745-46 (6th Cir.2007). This Court must also determine whether the ALJ applied the correct legal criteria. Id.
Regarding the substantial evidence requirement, the ALJ's findings must be affirmed if they are supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (citing Consolidated Edison Company v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); Landsaw v. Secretary of Health and Human Services, 803 F.2d 211, 213 (6th Cir.1986). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson, supra, at 401, 91 S.Ct. 1420; Ellis v. Schweicker, 739 F.2d 245, 248 (6th Cir.1984). Substantial evidence is more than a mere scintilla, but only so much as would be required to prevent a directed verdict (now judgment as a matter of law) against the ALJ/Commissioner if this case were being tried to a jury. Foster v. Bowen, 853 F.2d 483, 486 (6th Cir.1988); NLRB v. Columbian Enameling and Stamping Company, 306 U.S. 292, 300, 59 S.Ct. 501, 83 L.Ed. 660 (1939).
The second judicial inquiry — reviewing the ALJ's legal criteria — may result in reversal even if the record contains substantial evidence supporting the ALJ's factual findings. See Bowen, 478 F.3d at 746. A reversal based on the ALJ's legal criteria may occur, for example, when the ALJ has failed to follow the Commissioner's "own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right." Bowen, 478 F.3d at 746(citing in part Wilson v. Commissioner of Social Security, 378 F.3d 541, 546-47 (6th Cir. 2004)).
In this case, the ALJ's decision is supported by substantial evidence and the ALJ applied the correct legal criteria. WHEREFORE, Dunmore's Objections to the Magistrate Judge's Report and Recommendations are OVERRULED, and this Court adopts the Report and Recommendations of the United States Magistrate Judge (doc. #14) in its entirety. The Commissioner's decision that Dunmore is not disabled in accordance with Social Security regulations is affirmed.
MICHAEL J. NEWMAN, United States Magistrate Judge.
This is a Social Security disability benefits appeal brought pursuant to 42 U.S.C. § 405(g). At issue is whether the Administrative Law Judge ("ALJ") erred in finding Plaintiff Addison Dunmore ("Plaintiff") not "disabled" within the meaning of the Social Security Act and therefore unentitled to Disability Insurance Benefits ("DIB").
This case is before the Court upon Plaintiffs Statement of Errors (doc. 8), the Commissioner's Memorandum in Opposition (doc. 12), Plaintiffs Reply (doc. 13), the administrative record (doc. 6),
Plaintiff filed applications for DIB and Supplemental Security Income ("SSI") on April 18, 2008, asserting that he has been under a "disability" since April 11, 2008.
Following initial administrative denials of his application, Plaintiff received a hearing before ALJ Amelia Lombardo ("ALJ Lombardo") in August 2010. PageID 66-104. On January 13, 2011, ALJ Lombardo issued a written decision, concluding that Plaintiffs impairments did not constitute a "disability" within the meaning of the Social Security Act. PageID 49-59.
Specifically, the ALJ's "Findings," which represent the rationale of her decision, were as follows:
PageID 52-59.
Thereafter, the Appeals Council denied Plaintiff's request for review, making the ALJ's non-disability finding the final administrative decision of the Commissioner. PageID 42-45. See Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir.1993). Plaintiff then filed this appeal on January 25, 2012. Doc. 2.
At the administrative hearing, Plaintiff testified that he worked in a factory as a screw-machine operator for twenty years, and was laid off in 2007. PageID 71, 91. He collected unemployment benefits from the time of his layoff through April 2010. PageID 79-80.
When asked what physical impairments caused him to be disabled, Plaintiff testified, "it's not any one physical limitation, but it's a bunch of these that have ganged up on me." PageID 71. He stated that his physical limitations are caused by a heart valve replacement, thyroid disease, arthritis, osteoporosis, COPD, and bone spurs on his spine. PageID 71-74. Plaintiff also testified that he suffers from carpal tunnel syndrome in his wrists, chronic numbness in his right hand, and occasional numbness in his left hand. PageID 75. He also has migraine headaches once every two or three weeks. PageID 78.
Regarding mental limitations, Plaintiff testified that he suffers from depression, and has suicidal thoughts. PageID 76-77. He has received treatment at a community mental health center since 2009. PageID 77. He sees a counselor approximately once a month for psychotherapy, and a psychiatrist several times per year for medication management. Id.
Plaintiff estimated that he can lift twenty pounds; walk one block; and stand
Plaintiff testified that he smokes, despite numerous attempts to quit. PageID 74, 93. He acknowledged a history of alcohol and drug addiction, but stated that he has been in recovery for many years. PageID 77.
Brian Womer, a vocational expert ("VE"), also testified at the administrative hearing. PageID 94-100. He described Plaintiffs past work as a machinist, which he classified at the medium, skilled level. PageID 94-95. The VE acknowledged that an individual of Plaintiff's age, education and work experience — who is limited to work at no more than the light exertional level — could not perform his previous job. Id.
The VE also testified that, based on an RFC of light work with restrictions of no heights or hazardous machinery, and no extremes of heat or cold, Plaintiff could perform 24,000 jobs in the regional economy. PageID 95. With the added limitation of frequent fine manipulation with the right dominant hand, the VE testified that the number of jobs would be reduced to approximately 20,000. Id. The VE also testified if all the postural limitations were reduced to "occasional," the number of jobs would be reduced to 7,000. PageID 98. With the additional limitation of a sit/stand option, the number of jobs available would be reduced to 4,000; such jobs would include a small parts assembler and assembly machine tender. PageID 98-99.
The Court's inquiry on appeal is to determine: (1) whether the ALJ's non-disability finding is supported by substantial evidence; and (2) whether the ALJ employed the correct legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir.2007). In performing this review, the Court must consider the record as a whole. Hephner v. Mathews, 574 F.2d 359, 361 (6th Cir. 1978).
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). When substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found a claimant disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir.2001). Thus, the ALJ has a "`zone of choice' within which he [or she] can act without the fear of court interference." Id. at 773.
The second judicial inquiry — reviewing the correctness of the ALJ's legal analysis — may result in reversal even if the ALJ's decision is supported by substantial evidence in the record. Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir.2009). "[A] decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a
To be eligible for DIB, a claimant must be under a "disability" as defined by the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a "disability" includes physical and/or mental impairments that are both "medically determinable" and severe enough to prevent a claimant from: (1) performing his or her past job; and (2) engaging in "substantial gainful activity" that is available in the regional or national economies. Id.
Administrative regulations require a five-step sequential evaluation for disability determinations. 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any step ends the ALJ's review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir.2007), the complete sequential review poses five questions:
20 C.F.R. § 404.1520(a)(4); Miller v. Comm'r of Soc. Sec., 181 F.Supp.2d 816, 818 (S.D.Ohio 2001). A claimant bears the ultimate burden of establishing that he or she is "disabled" under the Social Security Act's definition. Key v. Callahan, 109 F.3d 270, 274 (6th Cir.1997).
As a preliminary note, Plaintiff's pertinent medical records have been adequately summarized in his Statement of Errors and the administrative decision, see doc. 8 at PageID 856-61; PageID 52-56, and the Court will not repeat them here. Where applicable, the Court will identify the medical evidence relevant to its decision.
On appeal, Plaintiff argues that the ALJ erred by: (1) failing to properly consider the opinion of his treating mental health therapist, Jack Adkins, MS, PCC, under Social Security Regulation ("SSR") 06-3p; (2) finding at Step Four that Plaintiff has the RFC to perform a limited range of light work; and (3) improperly portraying Plaintiffs physical and mental impairments in the questions asked to the VE. See doc. 8 at PageID 862-71.
Mr. Adkins began treating Plaintiff on June 24, 2009. PageID 740. On August 11, 2010, Mr. Adkins reported a diagnosis of depressive disorder NOS, and assigned Plaintiff a Global Assessment of Functioning ("GAF") score of 55.
Plaintiff contends the ALJ erred by failing to properly weigh Mr. Adkins' opinion in accordance with Social Security regulations. However, Plaintiffs argument lacks merit.
Under the regulations, as a therapist, Mr. Adkins is not an "acceptable medical source" as defined by 20 C.F.R. § 404.1513(a)(1)-(5). While SSR 06-03p, 2006 WL 2329939, 2006 SSR LEXIS 5, recognizes that "non-medical sources" who have had contact with a claimant in their professional capacity are valuable sources of evidence for assessing impairment severity and functioning, the regulation also allows the ALJ to give greater weight to "acceptable medical sources" who are recognized as more-qualified healthcare professionals. Id.
Moreover, under SSR 06-03p, 2006 WL 2329939, 2006 SSR LEXIS 5, the opinions of "non-medical sources," like those of "acceptable medical sources" must be weighed and evaluated with the criteria set forth in 20 CFR § 404.1527, as further amplified in Social Security Rulings 96-2p, 1996 WL 374188, 1996 SSR LEXIS 9 and 96-5p, 1996 WL 374183, 1996 SSR LEXIS 2. The factors the ALJ must consider include the consistency of the opinion with the other evidence of record, and the degree to which the source presents relevant evidence to support that opinion. See 20 CFR § 404.1527.
The ALJ's decision confirms her consideration of the aforementioned regulations when weighing Mr. Adkins' opinion, and reveals the depth of her analysis:
PageID 55-56.
The Court finds the weight accorded to Mr. Adkins' opinion to be supported by substantial evidence, and the ALJ's consideration of his opinion to be compliant with Social Security regulations. As noted by the ALJ, Mr. Adkins' opinion — that Plaintiff is unable to maintain employment at any level, see PageID 740-42 — is inconsistent with the other medical opinions of record. Consultative examiner George Schulz, Ph.D., opined that Plaintiff was impaired in only one functional domain, and only to a mild degree. PageID 298-304. Similarly, medical consultants Leslie Rudy, Ph.D., and Doug Pawlarczyk, Ph.D., opined Plaintiff has no extreme or marked limitations. PageID 308-26, 335. Rather, Drs. Rudy and Pawlarczyk share the opinion that Plaintiff has moderate limitations in the domain of attention/concentration based on testing indicating memory difficulties, and can nevertheless perform simple and multi-step tasks. Id.
Notably, Darnell Ladson, D.O., the psychiatrist who was treating Plaintiff at the same time as Mr. Adkins, did not share the opinion that Plaintiffs mental impairments were disabling. On initial evaluation in June 2009, Dr. Ladson found Plaintiffs concentration/memory to be "ok"; noted no panic attacks, mood swings, delusions, or anxiety; and assigned a GAF score of 55 — indicative of only moderate symptoms. See PageID 833-36; DSM-IV-TR at 32-34. See also Sims v. Comm'r of Soc. Sec., 406 Fed.Appx. 977, 980 (6th Cir.2011) (noting that "moderate" functional limitations are "non-disabling"). On subsequent visits, Dr. Ladson continued to find normal behavior ("ok" or "controlled"), normal cognition ("ok" or "average"), normal thought content ("ok" or "hopeful"), and normal perception ("ok"). PageID 801, 803, 807, 813, 817, 825. He also often found Plaintiff to have a normal, non-depressed ("euthymic") mood/affect. PageID 801, 803, 813, 817, 825.
Furthermore, Mr. Adkins' opinion is inconsistent with Plaintiffs reported daily activities. For instance, Mr. Adkins reported that Plaintiff has extreme limitations in his activities of daily living, but such an opinion is undermined by Plaintiffs testimony that he lives with and cares for his two teenage sons; performs household chores such as washing dishes, doing laundry, and house cleaning; manages his own finances; and drives when necessary. See, e.g., PageID 70, 81, 301. Mr. Adkins' opinion — that Plaintiff has marked limitations in maintaining social functioning — is similarly undermined by Plaintiffs own admission that he socializes with friends at least once per week, and attends Alcoholics Anonymous and Narcotics Anonymous meetings three times per week. See, e.g., PageID 301. Moreover, Mr. Adkins' assignment of a GAF score of 55, while consistent with the score assigned by Dr. Ladson, is generally indicative of only moderate symptoms, and not of the severity which would render a person disabled from all work activity. DSM-IV-TR at 32-34.
Plaintiff argues the ALJ "gave no articulated reasons for crediting or rejecting what particular evidence that she used in reaching her conclusion that Plaintiff could perform a reduced range of light work activity." See doc. 8, at PageID 868. Plaintiff additionally argues the ALJ erred in the questions she asked to the VE based upon her RFC finding. Both of these arguments lack merit.
A claimant's RFC is an assessment of physical and mental work abilities — i.e., what the individual can or cannot do despite his or her limitations. 20 C.F.R. § 404.1545(a); see Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 239 (6th Cir.2002). Social Security regulations charge the ALJ with the responsibility for assessing a claimant's RFC. See 20 C.F.R. § 404.1527(e)(2).
Here, the ALJ's RFC determination is based upon the medial opinion evidence of record, the results of objective clinical testing, Plaintiffs treatment history, and his daily activities. Notably, none of Plaintiff's treating physicians opined he is completely disabled. In absence of any such treating physician opinion, the ALJ was justified in relying on the opinions of the record-reviewing medical consultants, Leslie Green, M.D., and Myung Cho, M.D. See PageID 327-35, 337; Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir.2004). See also Peebles v. Chater, No. 95-5627, 1996 WL 229528, at *5, 1996 U.S.App. LEXIS 42593, at *15 (6th Cir. May 6, 1996) ("in the absence of any evidence from treating physicians ... the ALJ was required to rely on the reports of the consulting physician").
Furthermore, the ALJ made no error in determining that the assessments of Drs. Green and Cho were entitled to considerable deference, as they were consistent with the medical findings of record, and were not rebutted by other substantial evidence. PageID 53, 55. In this regard, the ALJ explained:
PageID 56-57, 728. The ALJ also observed that Plaintiff has had no required surgical intervention for his physical impairments; all of his treatment has been conservative; and there is nothing in the record to support the use of an ambulatory aid, including Plaintiff's testimony that the cane he uses had not been prescribed by a physician. PageID 77-78. The ALJ's RFC finding appropriately takes into account the effects of his physical and mental impairments, and is supported by substantial evidence.
The record strongly suggests that Plaintiff can perform a wide range of activities and is not disabled. See supra. This conclusion is supported by the medical evidence, discussed above, which shows that Plaintiffs impairments, whether viewed singly or in combination, do not demonstrate disability. Id. Moreover, it is not the Court's role to sift through the facts and make a de novo determination of whether a claimant is disabled. The ALJ, not the Court, is the finder of fact. Siterlet v. Sec'y of Health & Human Servs., 823 F.2d 918, 920 (6th Cir.1987). The ALJ reasonably undertook that role here. Id. So long as the Commissioner's decision is supported by substantial evidence, it must be affirmed. 42 U.S.C. § 405(g); Richardson, 402 U.S. at 401. Where, as here, there is substantial evidence supporting the ALJ's resolution of the disputed facts, the Court must affirm the ALJ even if the Court might have resolved those disputed facts in Plaintiff's favor had it been the trier of fact. Nunn v. Bowen, 828 F.2d 1140, 1144 (6th Cir.1987).
In addition, the Court finds the ALJ committed no error at Step Five. Plaintiffs argument — that the hypothetical posed to the vocational expert did not include all of his limitations — lacks merit. An ALJ may properly pose to the VE a hypothetical reflective of the ALJ's actual findings, to the extent that those findings are supported by substantial evidence. Jones v. Comm'r of Soc. Sec, 336 F.3d 469, 475-76 (6th Cir.2003). The fact that the jobs identified by the VE may also have some multi-step tasks does not necessarily imply a requirement in excess of Plaintiff's ability. The VE was competent to testify that there were a number of positions which Plaintiff could perform based upon the RFC provided by the ALJ. Whereas the Court concluded supra that the ALJ's RFC determination is supported by substantial evidence, the hypothetical questions posed by the ALJ, which incorporated such assessment, were not improper. See Varley v. Sec'y of Health & Human Servs., 820 F.2d 777, 779 (6th Cir.1987).
For the foregoing reasons, the Court finds Plaintiff's assignments of error to be unavailing. The ALJ's decision is supported by substantial evidence and should be affirmed.
