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 Disability Insurance Benefits (DIB) under Title II of the Social Security Act. On March 8, 2016, the parties agreed to proceed in this Court for all further proceedings, including an order of final judgment. (ECF No. 7).
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. The Commissioner has found that Plaintiff is not disabled within the meaning of the Act. For the reasons stated below, the Court concludes that the Commissioner's decision is supported by substantial evidence. Accordingly, the Commissioner's decision is
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 54 years of age on her alleged disability onset date. (PageID.184). She earned a Bachelor's Degree in math and chemistry and previously worked as a research scientist. (PageID.56, 238). Plaintiff applied for benefits on June 12, 2013, alleging that she had been disabled since October 19, 2011, due to post-concussion syndrome and migraines. (PageID.184-90, 237). Plaintiff's application was denied, after which time she requested a hearing before an Administrative Law Judge (ALJ). (PageID.104-78). On March 14, 2014, Plaintiff appeared before ALJ James Prothro with testimony being offered by Plaintiff and a vocational expert. (PageID.51-98). In a written decision dated June 6, 2014, the ALJ determined that Plaintiff was not disabled. (PageID.33-46). The Appeals Council declined to review the ALJ's determination, rendering it the Commissioner's final decision in the matter. (PageID.18-20). Plaintiff subsequently initiated this pursuant to 42 U.S.C. § 405(g), seeking judicial review of the ALJ's decision.
In 1981, Plaintiff underwent AVM resection surgery.
On October 18, 2011, Plaintiff "fell approximately 7 steps" and "hit the back of her head." (PageID.295). Plaintiff did not lose consciousness following this event, but nevertheless reported to a hospital. (PageID.295). The results of a CT scan were unremarkable and Plaintiff was found to be "neurologically stable." (PageID.295). On November 3, 2011, Plaintiff participated in a CT scan of her head the results of which revealed "stable appearance of the head without any evidence of acute intracranial processes." (PageID.409).
On February 27, 2012, Plaintiff participated in a neuropsychological evaluation at Mary Free Bed Rehabilitation Hospital. (PageID.445-50). The examination revealed that Plaintiff was only "marginally limited" and was "doing well with basic tasks." (PageID.446). The examiner reported that Plaintiff's symptoms "improved with physical therapy, though she is still experiencing some mild symptoms." (PageID.446). The examiner reported that she "did not find any evidence of pervasive cognitive impairment." (PageID.447). The examiner concluded that Plaintiff could return to work. (PageID.449).
Treatment notes dated August 30, 2012, indicate that Plaintiff's cerebellar function was "intact." (PageID.407). On September 7, 2012, Plaintiff participated in an EEG examination the results of which were "within normal limits" with "no epileptogenic or paroxysmal activities." (PageID.402).
On April 27, 2013, Plaintiff was examined by James Lozer, Ed.D. (PageID.438-43). With respect to Plaintiff's activity level, the doctor observed:
(PageID.440).
(PageID.443).
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 she can satisfy her burden by demonstrating that her impairments are so severe that she is unable to perform her previous work, and cannot, considering her 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 her 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 suffers from: (1) post-concussive syndrome, statuspost mild to moderate concussion; (2) migraines; (3) caffeine intoxication and overuse; (4) cannabis abuse; (5) sleep apnea; and (6) obesity, 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.35-37). With respect to Plaintiff's residual functional capacity, the ALJ found that Plaintiff retained the ability to perform medium work subject to the following limitations: (1) she can occasionally climb and balance; (2) she should avoid concentrated exposure to workplace hazards such as unprotected heights and dangerous machinery; and (3) she is able to perform semi-skilled work. (PageID.37).
The ALJ found that Plaintiff was unable to perform her 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, her 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 approximately 59,200 jobs in the lower peninsula of Michigan which an individual with Plaintiff's RFC could perform, such limitations notwithstanding. (PageID.87-90). This represents a significant number of jobs. See Born v. Sec'y of Health and Human Services, 923 F.2d 1168, 1174 (6th Cir. 1990); Hall v. Bowen, 837 F.2d 272, 274 (6th Cir. 1988); Martin v. Commissioner of Social Security, 170 Fed. Appx. 369, 374 (6th Cir., Mar. 1, 2006). The ALJ concluded, therefore, that Plaintiff was not entitled to disability benefits.
The Listing of Impairments, detailed in 20 C.F.R., Part 404, Subpart P, Appendix 1, identifies various impairments which, if present to the severity detailed therein, result in a finding that the claimant is disabled. Plaintiff asserts that she satisfies the requirements of Section 12.02 of the Listings which provides as follows:
20 C.F.R., Part 404, Subpart P, Appendix 1, § 12.02.
Plaintiff bears the burden to demonstrate that she satisfies the requirements of a listed impairment. See Kirby v. Comm'r of Soc. Sec., 2002 WL 1315617 at *1 (6th Cir., June 14, 2002). An impairment satisfies a listing, however, "only when it manifests the specific findings described in all of the medical criteria for that particular impairment." Lambert v. Commissioner of Social Security, 2013 WL 5375298 at *8 (W.D. Mich., Sept. 25, 2013) (citing 20 C.F.R. §§ 404.1525(d) and 416.925(d)).
Plaintiff argues that she satisfies this Listing because she suffered a loss of at least 15 IQ points following a concussion she suffered in 2011. Plaintiff's argument fails for two reasons. First, the record that was before the ALJ fails to substantiate that Plaintiff's IQ diminished following her October 18, 2011 fall. Testing performed on February 27, 2012, indicated that Plaintiff possessed an IQ of 95. (PageID.377). However, Plaintiff fails to identify any evidence in the record to support the conclusion that Plaintiff's IQ was ever evaluated, prior to her injury, at 110 or higher. Plaintiff attempts to navigate this shortcoming by submitting with her reply brief what is purported to be a copy of her "secondary school record." (PageID.525). This document appears to suggest that IQ testing performed when Plaintiff was 14 years of age revealed that she possessed an IQ of 116. (PageID.525). As Plaintiff acknowledges, however, this evidence was never presented to the ALJ.
It is well recognized that this Court cannot consider new evidence unless Plaintiff demonstrates that the evidence is new and material, and that good cause existed for not presenting it to the ALJ. See Cline v. Commissioner of Social Security, 96 F.3d 146, 148 (6th Cir. 1996). Even if the Court assumes that there exists good cause for Plaintiff's failure to obtain this evidence and present it to the ALJ, Plaintiff cannot establish that consideration of this evidence would have led to a different result.
As noted above, even if it is assumed that Plaintiff's IQ diminished by 15 points following her injury, Plaintiff must also demonstrate that such resulted in at least two of the following: (1) marked restriction of activities of daily living; (2) marked difficulties in maintaining social functioning; (3) marked difficulties in maintaining concentration, persistence, or pace; and (4) repeated episodes of decompensation, each of extended duration. Plaintiff does not even bother to argue that she can make this showing. Moreover, even had Plaintiff argued that she satisfied this particular criteria, the evidence discussed above belies any such argument. In sum, Plaintiff cannot satisfy her burden to establish that she meets the requirements of this Listing.
For the reasons articulated herein, the Court concludes that the ALJ's decision is supported by substantial evidence. Accordingly, the Commissioner's decision is
