KATHLEEN B. BURKE, Magistrate Judge.
Plaintiff Keith Mitchell ("Plaintiff" or "Mitchell") challenges the final decision of Defendant, Carolyn M. Colvin, Acting Commissioner of Social Security ("Commissioner") denying his application for supplemental social security income ("SSI") and disability insurance benefits ("DIB") under Titles XVI and II, respectively, of the Social Security Act . Doc. 1. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to Local Rule 72.2(b)(1).
For the reasons stated below, the Commissioner's decision should be
Mitchell filed applications for SSI and DIB on October 1, 2010, alleging a disability onset date of September 1, 2010. Tr. 179, 183. He alleged disability based on the following impairments: congestive heart failure, high blood pressure, diabetes, and neuropathy. Tr. 193. Mitchell's application was denied by the state agency initially (Tr. 118, 122) and on reconsideration (Tr. 127, 133). On May 18, 2012, a hearing was held before Administrative Law Judge ("ALJ") James Hill. Tr. 32-77. In his June 1, 2012, decision, the ALJ determined that Mitchell's residual functional capacity ("RFC") did not prevent him from performing work existing in significant numbers in the national economy, i.e., he was not disabled. Tr. 12-29. Mitchell requested review of the ALJ's decision by the Appeals Council. Tr. 5-7. On July 17, 2013, the Appeals Council denied Mitchell's request for review, making the ALJ's decision the final decision of the Commissioner. Tr. 1-5.
On June 16, 2011, Mitchell continued to report some pain in his feet and was advised to take Benadryl in the evenings for the pain. Tr. 447. In July 2011, Mitchell reported continued pain. Tr. 446. He indicated that he visited the pain management clinic and the clinic representatives were considering switching him to Lyrica. Id. Mitchell was prescribed Metanx and Tramadol for pain. Id. In August 2011, Mitchell received his diabetic shoes and custom inserts. Tr. 445. Dr. Williams noted that an electromyography and nerve conduction velocity were positive for demyelinization,
On January 11, 2012, Mitchell reported continued sharp pain in his toes and occasionally in his fingertips. Tr. 472. It was noted that Mitchell's diabetes was not well-controlled at this time. Id. Mitchell returned to Pain Associates in February 2012 and was noted to have a slow wide-based gait while wearing his diabetic shoes. Tr. 471. He reported limited activities secondary to pain and stated he could not drive due to "no feeling [in] feet." Id. In March 2012, Mitchell reported constant pain ("10/10") and stated that, because of his neuropathy, he was unable to walk half a city block and could stand for only a "poor duration." Tr. 470. It was noted that his blood sugar was up and down. Id.
At the administrative hearing, Mitchell was represented by counsel and testified that he was 39 years old at the time of the hearing and finished school through the tenth grade. Tr. 40-41. Mitchell testified that his past work was in retail, landscaping, and the restaurant industry. Tr. 43-45. Mitchell testified that he is unable to work due to his gout, back pain, neuropathy, and congestive heart failure. Tr. 47-50. Mitchell testified that he was fired from his job with TJ Maxx in 2010 because he was taking extra breaks due to pain in his feet. Tr. 55-57.
Mitchell was using a cane at the hearing, as acknowledged by the ALJ, but stated that it was not prescribed by a doctor. Tr. 46. Rather, Mitchell testified, "my foot doctor told me it would take some of the — you know, there wouldn't be so much pressure on my foot. So he told me, if I can afford a cane to try to get one, if I'm going to be walking, for you know, long periods of time, over an hour or so, or anything like that." Id. Mitchell testified that he thought he could walk for 25-30 minutes without a cane and maybe an hour with the cane. Tr. 52. He stated that he had difficulty bending, reaching, and sitting. Tr. 52-53.
Vocational Expert Barbara Burk ("VE") testified at the hearing. Tr. 65-76. The VE testified regarding the skill and exertional levels of Mitchell's past work: warehouse worker (unskilled, medium but performed at heavy to very heavy); building material sales attendant (marginally semi-skilled and heavy); cashier-wrapper (light but may have performed heavy);
The ALJ then asked the VE to consider a hypothetical individual of Mitchell's age, education, and work experience who can perform sedentary work but can never climb ladders, ropes, or scaffolds; could occasionally climb ramps or stairs; could not stand/walk for more than 30 minutes at a time; could occasionally operate foot controls; must avoid even moderate exposure to extreme heat, extreme cold, wetness, and humidity; must avoid all exposure to hazards, such as dangerous machinery and unprotected heights. Tr. 71. The VE testified that such a hypothetical individual could not perform Mitchell's past work. Tr. 71-72. The ALJ then asked the VE whether there were other jobs existing in the regional and national economies that such an individual could perform. Tr. 72. The VE testified that such an individual could perform the following jobs: cashier II (500-800 regional jobs, 50,000-70,000 national jobs) and small products assembler (500 regional jobs, 29,000 national jobs). Tr. 72-74.
The ALJ then asked the VE to consider a second hypothetical individual with the following modifications from the first: the second individual could occasionally stoop, kneel, crouch, and crawl; must avoid even moderate exposure to fumes, odors, dusts, gases, and poor ventilation; can rarely climb ramps and stairs; and is unable to operate foot controls. Tr. 74-75. The VE testified that the second hypothetical individual would be unable to perform work as a cashier and small products assembler. Tr. 75. The ALJ then posited a third hypothetical with the following additions to the second: the individual must be permitted to take three to four unscheduled work breaks, of 15 to 20 minutes each, during the course of an eight-hour work day. Tr. 76. The VE responded that there would be no jobs for such an individual. Id.
Next, Mitchell's attorney questioned the VE. Tr. 76-77. Mitchell's attorney asked the VE to opine on the following: if the VE were to adopt the ALJ's first hypothetical but add that the individual would need to elevate their feet occasionally throughout the work day, at waist height. Tr. 76. The VE testified that there would be no jobs for such an individual without a special accommodation. Id. Mitchell's attorney then asked, alternatively, whether, if the first hypothetical individual described by the ALJ were to have an additional limitation that he could only occasionally perform fine manipulation, the individual be able to perform the two jobs previously identified by the VE. Id. The VE testified that there would be no jobs for such an individual. Id.
Under the Act, 42 U.S.C. § 423(a), eligibility for benefit payments depends on the existence of a disability. "Disability" is defined as the "inability to engage in any 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 12 months." 42 U.S.C. § 423(d)(1)(A). Furthermore:
42 U.S.C. § 423(d)(2).
In making an initial determination as to disability under this definition, an ALJ is required to follow a five-step sequential analysis set out in agency regulations. The five steps can be summarized as follows:
20 C.F.R. §§ 404.1520, 416.920; see also Bowen v. Yuckert, 482 U.S. 137, 140-42, 96 L. Ed. 2d 119, 107 S.Ct. 2287 (1987). Under this sequential analysis, the claimant has the burden of proof at Steps One through Four. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the Commissioner at Step Five to establish whether the claimant has the vocational factors to perform work available in the national economy. Id.
In his June 1, 2012, decision, the ALJ made the following findings:
5. The claimant has the residual functional capacity to perform sedentary work as defined in 20 C.F.R. 404.1567(a) and 416.967(a) except he can never climb ladders, ropes, or scaffolds and he can rarely climb ramps and stairs. He cannot stand/walk for more than 30 minutes at a time. The claimant can occasionally stoop, kneel, crouch, and crawl. He can occasionally operate foot controls. The claimant must avoid even moderate exposure to fumes, odors, dust, gases, and poor ventilation. The claimant must avoid all exposure to hazards such as dangerous machinery and unprotected heights. Tr. 19.
6. The claimant is unable to perform past relevant work. Tr. 23.
7. The claimant was born in 1972, and was 38 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date. Tr. 23.
8. The claimant has a limited education and is able to communicate in English. Tr. 23.
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills. Tr. 23.
The ALJ's decision became the final decision of the Acting Commissioner when the Appeals Council declined review on July 17, 2013. Tr. 1-4.
Plaintiff argues that remand is required because the ALJ failed to mention and consider the opinion of Dr. Williams, one of Mitchell's treating sources. Doc. 15, pp. 16-17. Plaintiff also argues that the ALJ's RFC finding is not supported by substantial evidence because it failed to account for Mitchell's need to use a cane. Id. at pp. 17-19. Defendant counters that the ALJ's decision is supported by substantial evidence. Doc. 18, pp. 6-11.
A reviewing court must affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence in the record. 42 U.S.C. § 405(g); Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003). "Substantial evidence is more than a scintilla of evidence but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Besaw v. Sec'y of Health & Human Servs., 966 F.2d 1028, 1030 (6th Cir. 1992) (quoting Brainard v. Secretary of Health and Human Services, 889 F.2d 679, 681 (6th Cir.1989) (per curiam) (citations omitted)). A court "may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility." Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
Mitchell contends that the ALJ erred by failing to consider the opinion of Dr. Kwame A. Williams. Doc. 16, pp. 16-17. Mitchell submitted the opinion of Dr. Williams to the ALJ on May 31, 2012, thirteen days after the hearing and one day prior to the issuance of the ALJ's decision. Tr. 496-500. It is clear that the ALJ did not consider the opinion of Dr. Williams when rendering his decision. Tr. 29.
Mitchell contends that Dr. Williams' opinion should have been considered by the ALJ because the official record does not close until the ALJ has issued his decision. Doc. 19, pp. 1-2 (citing 20 C.F.R. §§ 405.360, 405.430). While Mitchell is correct that the official record closes once the ALJ has issued the decision, the date the record closes does not establish the deadline for submitting evidence. Social Security regulation 20 C.F.R. § 405.331 requires that evidence be submitted to the agency five days before a hearing, but carves out a limited exception for evidence filed after the deadline as follows:
(2) You had a physical, mental, educational, or linguistic limitation(s) that prevented you from submitting the evidence earlier; or
20 C.F.R. § 405.331(a) and (c) ("§ 405.331").
In submitting Dr. Williams' residual functional capacity to the ALJ, Mitchell's attorney submitted a cover letter which stated, "Please file the enclosed on behalf of our client." Tr. 496. The cover letter does not acknowledge that the evidence was being submitted after the deadline and does not indicate that there is a reasonable possibility that the evidence would affect the outcome of the claim. Even if there were a reasonable possibility that the opinion of Dr. Williams would have affected the outcome, Mitchell still fails to show that the administration's action misled him; that he had a physical, mental, educational, or linguistic limitation(s) that prevented him from submitting the evidence earlier; or some other unusual, unexpected, or unavoidable circumstance beyond his control prevented him from submitting the evidence earlier. 20 C.F.R. § 405.331(c).
Thus, because Mitchell fails to show that he met the requirements of § 405.331 in submitting Dr. Williams' assessment after the hearing had concluded, the ALJ was not required to consider that assessment in his opinion.
Mitchell argues that the ALJ posed an inaccurate hypothetical to the VE because it omitted any mention of his need for a cane and, therefore, the ALJ's decision is not supported by substantial evidence. Doc. 15, pp. 17-19. In the Sixth Circuit, a VE's testimony must be based on a hypothetical question that accurately portrays the claimant's physical and mental impairments. See Parley v. Sec'y of Health & Human Servs., 820 F.2d 777, 779 (6th Cir.1987). The VE's opinion testimony may only be used as substantial evidence of a claimant's residual functional capacity when that testimony is in response to a hypothetical question that "accurately portrays [the claimant's] individual physical and mental impairments." Davis v. Sec'y of Health & Human Servs., 915 F.2d 186, 189 (6th Cir.1990). However, it is also "well established that an ALJ . . . is required to incorporate only those limitations accepted as credible by the finder of fact" into the hypothetical question. Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir.1993).
The Commissioner contends that Mitchell's use of the cane was not medically required because medical documentation did not establish the need for a hand-held assistive device. Doc. 18, p. 9. Mitchell and the Commissioner agree that the operative law on this point is governed by Social Security Rule 96-9p, which states a follows:
SSR 96-9p, 1996 WL 374185 at *7 (July 2, 1996).
Mitchell points to various pieces of evidence to support his need for a cane. Doc. 15, p. 18 (citing to Tr. 46, 50, 290, 297, 419, 422, 439, 470, 498). First, Mitchell points to his own testimony (Tr. 46, 50). However, Mitchell's testimony does not qualify as "medical documentation establishing the need" for the cane under SSR 96-9p. Smith v. Astrue, CIV.A. 2:11-0065, 2012 WL 4329007 (M.D. Tenn. July 16, 2012) report and recommendation adopted, 2:11-CV-00065, 2012 WL 4328993 (M.D. Tenn. Sept. 20, 2012) (finding that plaintiff's testimony regarding her need for a cane did not count as "medical documentation establishing the need [for the cane], and a description of circumstances of when it is needed.") Further, Mitchell's testimony makes clear that no doctor prescribed him a cane.
In addition to his own testimony, Mitchell also points to various treatment notes to establish his need for a cane. Tr. 290, 297, 419, 422, 470. However, a review of those treatment notes reveals that the notes do not discuss, let alone establish, the need for a cane or describe circumstances when it is needed.
Next, Mitchell points to a 2011 letter from Pain Associates of Northeast Ohio which states that "patient ambulates with a short cane secondary to the pain to his bilateral feet." Tr. 43. This section of the 2011 letter appears to be a recapitulation of Mitchell's complaints and background information. Id. As such, the letter does not establish Mitchell's need for the cane or describe circumstances when it is needed.
Finally, Mitchell points to the May 29, 2012, opinion of Dr. Williams. Tr. 498. In his opinion, Dr. Williams stated that Mitchell must use a cane or other assistive device while engaging in occasional standing/walking. Tr. 499. However, as established in the prior section, Dr. Williams' opinion was not timely submitted to the ALJ and the ALJ did not consider it, and was not required to do so when rendering his decision. Accordingly, Dr. Williams' opinion cannot serve as medical documentation establishing the need for the cane.
As there is no medical documentation establishing that Mitchell required the use of a cane and describing the circumstances when it is needed, the ALJ did not err by omitting the use of a cane from his hypothetical questions to the vocational expert.
For the foregoing reasons, the undersigned recommends that the Commissioner's decision be