RAY KENT, Magistrate Judge.
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of the Social Security Administration (Commissioner) denying her claim for supplemental security income (SSI).
Plaintiff alleged a disability onset date of March 21, 2014. PageID.212. Plaintiff identified her disabling conditions as: shoulder pain; pain in both arms; needs new glasses; pain in feet; and, only two teeth on the bottom jaw. PageID.216. Prior to filing her application, plaintiff completed the 9th grade and had past employment as a long haul truck driver and a car parker. PageID.85-87, 217. The administrative law judge (ALJ) reviewed plaintiff's claim de novo and entered a written decision denying benefits on January 20, 2017. PageID.57-65. This decision, which was later approved by the Appeals Council, has become the final decision of the Commissioner and is now before the Court for review.
This Court's review of the Commissioner's decision is typically focused on determining whether the Commissioner's findings are supported by substantial evidence. 42 U.S.C. §405(g); McKnight v. Sullivan, 927 F.2d 241 (6th Cir. 1990). "Substantial evidence is more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Cutlip v. Secretary of Health & Human Services, 25 F.3d 284, 286 (6th Cir. 1994). A determination of substantiality of the evidence must be based upon the record taken as a whole. Young v. Secretary of Health & Human Services, 925 F.2d 146 (6th Cir. 1990).
The scope of this review is limited to an examination of the record only. This Court does not review the evidence de novo, make credibility determinations or weigh the evidence. Brainard v. Secretary of Health & Human Services, 889 F.2d 679, 681 (6th Cir. 1989). The fact that the record also contains evidence which would have supported a different conclusion does not undermine the Commissioner's decision so long as there is substantial support for that decision in the record. Willbanks v. Secretary of Health & Human Services, 847 F.2d 301, 303 (6th Cir. 1988). Even if the reviewing court would resolve the dispute differently, the Commissioner's decision must stand if it is supported by substantial evidence. Young, 925 F.2d at 147.
A claimant must prove that he suffers from a disability in order to be entitled to benefits. A disability is established by showing that the claimant cannot engage in substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months. See 20 C.F.R. § 416.905; Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). In applying the above standard, the Commissioner has developed a five-step analysis:
Heston v. Commissioner of Social Security, 245 F.3d 528, 534 (6th Cir. 2001) (citations omitted).
The claimant bears the burden of proving the existence and severity of limitations caused by her impairments and the fact that she is precluded from performing her past relevant work through step four. Jones v. Commissioner of Social Security, 336 F.3d 469, 474 (6th Cir. 2003). However, at step five of the inquiry, "the burden shifts to the Commissioner to identify a significant number of jobs in the economy that accommodate the claimant's residual functional capacity (determined at step four) and vocational profile." Id. If it is determined that a claimant is or is not disabled at any point in the evaluation process, further review is not necessary. Mullis v. Bowen, 861 F.2d 991, 993 (6th Cir. 1988).
"The federal court's standard of review for SSI cases mirrors the standard applied in social security disability cases." D'Angelo v. Commissioner of Social Security, 475 F.Supp.2d 716, 719 (W.D. Mich. 2007). "The proper inquiry in an application for SSI benefits is whether the plaintiff was disabled on or after her application date." Casey v. Secretary of Health and Human Services, 987 F.2d 1230, 1233 (6th Cir. 1993).
Plaintiff's claim failed at the fourth step of the evaluation. At the first step, the ALJ found that plaintiff has not engaged in substantial gainful activity since her application date of March 21, 2014. PageID.59. At the second step, the ALJ found that plaintiff had the following severe impairments: osteoarthritic pain of the bilateral shoulders; and osteoarthritic pain and degenerative disease of the bilateral knees. PageID.59. At the third step, the ALJ found that plaintiff did not have an impairment or combination of impairments that met or equaled the requirements of the Listing of Impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1. PageID.61.
The ALJ decided at the fourth step that,
PageID.61. Neither party addressed an apparent error in the residual functional capacity (RFC), which states that plaintiff can perform light work "except: work with simple, routine, and repetitive work instructions." Based on their briefs, both parties agree that this stated exception is actually the relevant limitation, i.e., that plaintiff is limited to "work with simple, routine, and repetitive work instructions." See Plaintiff's Brief (ECF No. 11, PageID.406-407); Defendant's Brief (ECF No. 12, PageID.412).
The ALJ also found that plaintiff is capable of performing past relevant work, which does not require the performance of work-related activities precluded by her RFC. Specifically, the ALJ found that:
PageID.64-65.
Accordingly, the ALJ determined that plaintiff has not been under a disability, as defined in the Social Security Act, from March 21, 2014 (the date the application was filed) through January 20, 2017 (the date of the decision). PageID.65.
Plaintiff raised three issues on appeal:
Plaintiff contends that the ALJ did not identify obesity as a severe or non-severe impairment even though "obesity had been diagnosed and multiple BMI calculations placed her in the obesity range." Plaintiff' Brief (ECF No. 11, PageID.401-402). Plaintiff also contends that "[t]he [ALJ's] lack of pertinent discussion in the decision gives rise to the inference that obesity was not considered at all." Id. at PageID.402.
Although the agency deleted obesity from the Listing of Impairments, the Commissioner views obesity as a medically determinable impairment that can be considered when evaluating a claimant's disability. See SSR 02-1p (stating in pertinent part "we consider obesity to be a medically determinable impairment and remind adjudicators to consider its effects when evaluating disability. . . including when assessing an individual's residual functional capacity." (2002 WL 34686281 (Sept. 12, 2002)). While SSR 02-1p provides guidance for the ALJ's in evaluating the limiting effects of a claimant's obesity, the ruling does not create a separate procedure requiring the Commissioner to consider obesity in every case.
Bledsoe v. Barnhart, 165 Fed. Appx. 408, 411-12 (6th Cir. 2006).
Here, the record reflects that the ALJ considered plaintiff's obesity in combination with her other impairments. The ALJ noted plaintiff's height (5'1") and weight (177 pounds), as well as plaintiff's testimony that she has problems with her legs and knees (e.g., that she would sit in a recliner for the majority of the day, and is limited to standing for ten minutes, walking two blocks, and sitting for twenty minutes). PageID.62. The ALJ also found that while the medical evidence did not support the need of a cane for ambulation, plaintiff testified that she had been using a cane that she received from her niece. PageID.64. In addition, the record reflects that the ALJ considered opinions from physicians who noted plaintiff's BMI: Charles Arnold, M.D. (noting a BMI of 35.90) (PageID.63, 102, 104); and, Michael Amburgey, M.D. (noting a BMI of 35) (PageID.63, 111-112). The ALJ also reviewed Exh. 8F (treatment notes from the Family Medicine Clinic), which reflect plaintiff's height, weight, and BMI (PageID.63-64, 335, 340, 345). While the ALJ could have addressed plaintiff's obesity in greater detail, the record reflects that the ALJ considered the limiting effects of plaintiff's obesity in deciding the disability claim. Accordingly, plaintiff's claim of error should be denied.
RFC is a medical assessment of what an individual can do in a work setting in spite of functional limitations and environmental restrictions imposed by all of her medically determinable impairments. 20 C.F.R. § 416.945. It is defined as "the maximum degree to which the individual retains the capacity for sustained performance of the physical-mental requirements of jobs." 20 C.F.R. Part 404, Subpt. P, App. 2, § 200.00(c).
Plaintiff contends that the ALJ's RFC determination is defective because it omitted key limitations. First, the RFC contains no limitations concerning the use of foot pedals, even though there was evidence of plaintiff's age (over 55 years old and over 60 years old), knee degeneration, knee pain, and specific testimony that pressing down on vehicle pedals caused her intense knee pain. Plaintiff's Brief at PageID.404. In this regard, during the administrative hearing, plaintiff testified that she doesn't drive because she cannot use the pedals (gas, brake, clutch) and that "just pushing on a pedal drives me insane with my knees." PageID.91. While plaintiff complained about her knees, she admitted: that she never had surgery on her knees; that surgery had not been recommended; and that while her primary care doctor had recommended a specialist (an orthopedic doctor), no appointment had been made as of the date of the hearing. PageID.92.
Second, the RFC did not contain any overhead reaching limitations, even though plaintiff had a shoulder impairment. PageID.405. In this regard plaintiff notes that the ALJ found a severe impairment of osteoarthritic pain of the bilateral shoulders (PageID.59). Plaintiff also reported shoulder pain at a consultative examination (PageID.297, 301).
Third, the RFC did not include limitations with respect to avoiding temperature extremes, even though plaintiff had cold intolerance due to asthmatic bronchitis. PageID.405. In this regard, plaintiff refers to a record from Gregg A. Patten, M.D., dated October 10, 2016. However, this record is far from definitive. While plaintiff reported a persistent cough for one year, Dr. Patten noted that plaintiff's chest x-ray "shows no disease and her spirometry today is surprisingly normal." PageID.356. The doctor thought that plaintiff's "cough and bronchitis are due to her smoking" and that "[t]here may be an element given her cold air intolerance of `asthmatic bronchitis'". PageID.356-357.
The ALJ recognized plaintiff's additional claims of impairment, but noted that there was no opinion evidence to support her claims:
PageID.62-63.
The ALJ also reviewed plaintiff's most recent examinations and treatments in 2016:
PageID.63.
Based on this record, substantial evidence supports the ALJ's decision that plaintiff was not disabled because she could perform her past relevant work as a car parker/driver. While the ALJ did not address plaintiff's possible cold air intolerance identified by Dr. Patten, nothing in the record indicates that this potential condition, or the pain in the shoulders, limited plaintiff from performing her past work as a car parker. When asked about her biggest problem in performing that work, plaintiff only mentioned problems with her knees pushing pedals. PageID.91-92. Substantial evidence supports the ALJ's determination that plaintiff's knee condition, which was being treated with heat, ice and over the counter pain medication, was not disabling. In summary, the ALJ's determination that plaintiff can perform her past relevant work is supported by substantial evidence. While the ALJ's decision was lacking in some respects, a remand will serve no useful purpose in this case. "No principle of administrative law or common sense requires [this court] to remand a case in quest of a perfect opinion unless there is reason to believe that remand might lead to a different result." Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir.1989). Accordingly, plaintiff's claim of error should be denied
Plaintiff contends that the ALJ's RFC is illogical because it requires that she "work with simple, routine, and repetitive work instructions." PageID.61 (emphasis added). Based on this limitation, plaintiff contends that this would require that a "job coach" be present to instruct plaintiff how to do her previous relevant work of driving and parking cars. Plaintiff's Brief at PageID.406-407. Plaintiff's claim is without merit. The phrase "[s]imple, routine, repetitive work" essentially refers to "unskilled" work. See Allison v. Commissioner of Social Security, No. 99-4090, 2000 WL 1276950 at *4 (6th Cir. Aug. 30, 2000) ("We believe that the ALJ's qualification that [the claimant] was limited to simple, repetitive, and routine tasks, within the category of light work, simply means that [the claimant] is limited to unskilled light work.").
Defendant contends that the ALJ's use of the term "instructions" was "most likely a drafting error, to the extent it is error at all, and does not affect the decision." Defendant's Brief (ECF No.12, PageID.418). The Court disagrees that this was a mere scrivener's error, because the ALJ used this same restriction in the hypothetical question posed to the vocational expert (VE):
PageID.94 (emphasis added). Neither the VE nor plaintiff's counsel objected to the form of the hypothetical question posed.
Contrary to plaintiff's contention, the Court does not find an RFC which limits a person to performing work which involves simple work instructions to be illogical. Other courts agree and have affirmed RFC's containing similar limitations. See, e.g., Faul v. Commissioner of Social Security, No. 1:15-cv-1219, 2016 WL 5538093 at *2 (W.D. Mich. Sept. 30, 2016) (court affirmed ALJ's decision, which included a limitation that claimant "can only do simple unskilled work with simple, routine, repetitive work instructions"). See also, Dettmer v. Berryhill, No. CV 17-2296-JWL, 2018 WL 3304521 (D. Kan. July 5, 2018) (affirming ALJ's decision which found that the claimant had the capacity "to understand, remember, and perform only simple repetitive work instructions"); Horning v. Berryhill, No. 2:16-CV-00290-RHW, 2017 WL 1903111 at *3, 5-6 (E.D. Wash. May 9, 2017) (the court found no error in ALJ's RFC determination that the claimant "can understand, remember, and carry out simple routine repetitive work instructions"); and Padlo v. Commissioner of Social Security, No. 15-11130, 2016 WL 4536425 (E.D. Mich. Aug. 31, 2016) (substantial evidence supported ALJ's RFC which limited the claimant to work which involved "simple repetitive work instructions"). Accordingly, plaintiff's claim of error should be denied.
Next, plaintiff contends that the ALJ made "irresponsible" statements about the use of opioid pain medications which "rises to the level of playing Doctor." Plaintiff's Brief at PageID.406. Plaintiff contends that ALJ's observation that "the claimant's use of medications does not suggest the presence of an impairment" contains an implicit, fallacious idea "that pain is not serious unless one is prescribed and takes opioids." Id. Plaintiff's contention is without merit.
The ALJ addressed plaintiff's use of medication as follows:
PageID.63-64. Contrary to plaintiff's contention, the ALJ was not "playing Doctor" in addressing plaintiff's use of medication. It is the ALJ's function to consider factors relevant to a claimant's symptoms, including "[t]he type, dosage, effectiveness and side effects of any medication you take or have taken to alleviate your pain or other symptoms[.]" See 20 C.F.R.§ 416.929(c)(3)(iv). Here, the ALJ found that plaintiff did not take any medication for her symptoms over "significant periods" of time, and that over the counter pain medications were relatively effective in controlling her symptoms. The use of mild pain medication undercuts complaints of disabling pain. Blacha v. Secretary of Health and Human Services, 927 F.2d 228, 231 (6th Cir 1990). Accordingly, this claim of error should be denied.
For the reasons discussed, I respectfully recommend that the Commissioner's decision be
ANY OBJECTIONS to this Report and Recommendation must be served and filed with the Clerk of the Court within fourteen (14) days after service of the report. All objections and responses to objections are governed by W.D. Mich. LCivR 72.3(b). Failure to serve and file written objections within the specified time waives the right to appeal the District Court's order. Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
