GREG WHITE, Magistrate Judge.
Plaintiff Doletha Cornwell ("Cornwell") challenges the final decision of the Commissioner of Social Security, Michael J. Astrue ("Commissioner"), denying Cornwell's claim for a Period of Disability ("POD"), Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI") under Title II and XVI of the Social Security Act ("Act"), 42 U.S.C. §§ 416(i), 423, 1381 et seq. This matter is before the Court pursuant to 42 U.S.C. § 405(g) and the consent of the parties entered under the authority of 28 U.S.C. § 636(c)(2).
For the reasons set forth below, the final decision of the Commissioner is AFFIRMED.
On July 14, 2008, Cornwell filed an application for POD, DIB, and SSI alleging a disability onset date of November 14, 2007. Her application was denied both initially and upon reconsideration. Cornwell timely requested an administrative hearing.
On June 17, 2010, an Administrative Law Judge ("ALJ") held a hearing during which Cornwell, represented by counsel, testified. Nancy J. Borgeson testified as an impartial vocational expert ("VE"). On October 15, 2010, the ALJ found Cornwell was able to perform a significant number of jobs in the national economy and, therefore, was not disabled. The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied further review.
Age forty (40) at the time of her administrative hearing, Cornwell is a "younger" person under social security regulations. See 20 C.F.R. §§ 404.1563(c) & 416.963(c). Cornwell has a high school education and past relevant work as a home health aide and nursing assistant. (Tr. 18.)
At the administrative hearing, Cornwell testified as follows:
The ALJ posed the following hypothetical to the VE:
(Tr. 45.)
The VE testified that Cornwell's past work as a CNA would be precluded. (Tr. 45.) Initially, the VE also testified that, based on the limitation of only occasional reaching, handling, fingering, and feeling with the dominant hand, most light, unskilled work would be precluded as well. (Tr. 47.) The VE acknowledged that certain jobs may exist, but none in great numbers. Id. As an example, the VE identified the job of a floor attendant. (Tr. 47-48.) After further questioning from the ALJ, the VE testified that the positions of lobby attendant and ticket-taker would have similar job characteristics as that of floor attendant because all three positions were placed in the same employment grouping. (Tr. 52-53.) The VE further testified that the hypothetical individual could perform the jobs of usher, lobby attendant, and ticket-taker, and that 39,300 such jobs exist in northeast Ohio. (Tr. 53-54.)
When asked by Cornwell's counsel whether the hypothetical individual could perform the job of ticket-taker, the VE responded that it might be more difficult due to restrictions on the use of her dominant hand, but that accepting tickets with the non-dominant hand would be possible. (Tr. 54.) The VE stated that many of the positions identified, based on her experience, are part-time. (Tr. 55.) However, when asked by the ALJ whether her source for the above cited numbers included only full-time jobs, the VE testified it is her understanding that only full-time jobs are quoted. (Tr. 56.) Later during the hearing, the VE confirmed that the jobs data she cited referred to full-time and salaried positions only. (Tr. 57-58.) Finally, the ALJ asked whether the above cited jobs were affected by a restriction on strict production quotas. (Tr. 57.) The VE testified that such restriction had no effect on those jobs. Id.
In order to establish entitlement to DIB under the Act, a claimant must be insured at the time of disability and must prove an inability to engage "in substantial gainful activity by reason of any medically determinable physical or mental impairment," or combination of impairments, that 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 12 months." 20 C.F.R. §§ 404.130, 404.315 and 404.1505(a).
A claimant is entitled to a POD only if: (1) she had a disability; (2) she was insured when she became disabled; and (3) she filed while she was disabled or within twelve months of the date the disability ended. 42 U.S.C. § 416(i)(2)(E); 20 C.F.R. § 404.320.
Cornwell was insured on her alleged disability onset date, November 14, 2007, and remained insured through the date of the ALJ's decision. (Tr. 12.) Therefore, in order to be entitled to POD and DIB, Cornwell must establish a continuous twelve month period of disability commencing between these dates. Any discontinuity in the twelve month period precludes an entitlement to benefits. See Mullis v. Bowen, 861 F.2d 991, 994 (6
A claimant may also be entitled to receive SSI benefits when she establishes disability within the meaning of the Act. 20 C.F.R. § 416.905; Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524 (6
The ALJ found Cornwell established medically determinable, severe impairments, due to degenerative disc disease of the cervical spine, left shoulder strain, sprain with neuropathy of the left median nerve, obesity, early onset dysthmic disorder, and post-traumatic stress disorder. (Tr. 12.) However, her impairments, either singularly or in combination, did not meet or equal one listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1. Cornwell was found incapable of performing her past relevant work, but was determined to have a Residual Functional Capacity ("RFC") for a limited range of light work. The ALJ then used the Medical Vocational Guidelines ("the grid") as a framework and VE testimony to determine that Cornwell is not disabled.
This Court's review is limited to determining whether there is substantial evidence in the record to support the ALJ's findings of fact and whether the correct legal standards were applied. See Elam v. Comm'r of Soc. Sec., 348 F.3d 124, 125 (6
The findings of the Commissioner are not subject to reversal merely because there exists in the record substantial evidence to support a different conclusion. Buxton v. Halter, 246 F.3d 762, 772-3 (6
In addition to considering whether the Commissioner's decision was supported by substantial evidence, the Court must determine whether the proper legal standards were applied. Failure of the Commissioner to apply the correct legal standards as promulgated by the regulations or failure to provide the reviewing court with a sufficient basis to determine that the Commissioner applied the correct legal standards are grounds for reversal where such failure prejudices a claimant on the merits or deprives a claimant of a substantial right. See White v. Comm'r of Soc. Sec., 572 F.3d 272 (6
Cornwell asserts that the RFC determination allowing a limited range of light work is not supported by substantial evidence. Cornwell identifies three alleged shortcomings: (1) lack of evidence supporting her ability to stand, walk, and sit for six hours in a workday; (2) lack of specificity as to Cornwell's ability to push/pull with her upper extremities; and, (3) failure to include her mental impairments in the RFC. (ECF No. 16 at 12-16.)
RFC is an indication of an individual's work-related abilities despite their limitations. See 20 C.F.R. § 416.945(a). A claimant's RFC is not a medical opinion, but an administrative determination reserved to the Commissioner. See 20 C.F.R. § 416.945(e). As such, the ALJ bears the responsibility for assessing a claimant's RFC, based on all of the relevant evidence. See 20 C.F.R. § 416.945(a) (emphasis added). "Judicial review of the Commissioner's final administrative decision does not encompass re-weighing the evidence." Carter v. Comm'r of Soc. Sec., 2012 U.S. Dist. LEXIS 40828 at **21-22 (W.D. Mich. Mar. 26, 2012) (citing Mullins v. Sec'y of Health & Human Servs., 680 F.2d 472 (6
Cornwell asserts that there is no evidence supporting the ALJ's finding that she can sit, stand, and walk for six hours in an eight-hour workday.
To the contrary, the ALJ's opinion cites several medical source opinions and observations regarding Cornwell's ability to walk, stand, and sit. The ALJ cites the opinion of Darshan Mahajan, M.D., who examined Cornwell and opined that she had normal muscle tone, normal gait, and, with the exception of the thenar muscle in her hand, well maintained power and coordination in her muscle groups. (Tr. 16, citing Exh. 20F.) In addition, as recognized by Cornwell, the ALJ specifically relied upon the RFC assessment of Phillip Bentley, M.D. (ECF No. 16 at 13-14, Tr 16.) Dr. Bentley opined that Cornwell could perform light work, including the ability to sit and stand/walk for six hours each in an eight-hour workday. (Tr. 578.) Dr. Bentley also expressly found that Cornwell was not credible with respect to her self reported walking/standing restrictions. (Tr. 582.) Cornwell takes issues with Dr. Bentley's conclusions and argues that the ALJ should not have relied upon his opinion. However, it is not this Court's function to re-weigh the evidence or craft its own RFC. The ALJ clearly considered the available evidence — both the medical evidence and Cornwell's testimony — when determining her RFC. Furthermore, the claimant bears the burden of demonstrating that she is disabled. Cornwell has failed to direct this Court to any medical opinion that she cannot sit, stand, or walk as described in the RFC.
Cornwell also argues that the RFC was not supported by substantial evidence because the ALJ failed to determine the extent to which she was limited in pushing/pulling (i.e. never, occasionally, frequently). (ECF No. 16 at 14.) The ALJ stated that "push and/or pull, including operation of hand and/or foot controls is limited in the upper extremities."
Finally, Cornwell argues that the RFC did not adequately account for limitations based on her mental impairments. (ECF No. 16 at 15.) Cornwell asserts that because consultative examiner Ronald G. Smith, Ph. D., opined that she had moderate limitations in her ability to withstand the pressure of day-to-day work activity (Tr. 525), the RFC was not supported by substantial evidence. (ECF No. 16 at 15.) Cornwell argues that the RFC's inclusion of a restriction against strict production quotas did not adequately accommodate her moderate impairment. Id. Dr. Smith's opinion also found that Cornwell was "not impaired in her ability to relate to others including fellow workers, supervisors and the general public in a job situation." (Tr. 525.) Moreover, Cornwell cites no law suggesting that moderate limitations in her ability to withstand the pressure of day-to-day work activity would require greater limitations than those found by the ALJ.
In her second assignment of error, Cornwell argues that the ALJ improperly crossed the line from judge to expert, and substituted his own opinion for that of the VE. (ECF No. 16 at 16-19.) The Commissioner counters that there was nothing improper about the ALJ questioning the VE about her testimony. (ECF No. 18 at 14-15.)
The Court has reviewed the oral transcript of the hearing in its entirety, paying special attention to the testimony of the VE. Although the questioning of the VE was somewhat out of the ordinary, it was not improper. When the VE initially indicated that she did not believe there were any jobs in significant numbers (Tr. 47), the ALJ asked the VE whether Cornwell could perform the job of an usher, and what number of such jobs existed locally. (Tr. 52-58.) After some confusion about whether usher positions are paid/unpaid or full-time/part-time
Finally, while there was some dispute whether the hypothetical person could perform the job of ticket-taker, the VE estimated that the usher positions alone accounted for one-third (1/3) of the 39,300 jobs identified in Northeast Ohio. (Tr. 60-61.) The ALJ's ultimate finding at Step Five relied only on the 13,000 usher positions. (Tr. 19.)
For the foregoing reasons, the Court finds the decision of the Commissioner supported by substantial evidence. Accordingly, the decision of the Commissioner is AFFIRMED.
IT IS SO ORDERED.