THOMAS M. PARKER, Magistrate Judge.
Plaintiff, Deonca Denise Shepherd, seeks judicial review of the final decision of the Commissioner of Social Security, denying her application for supplemental security income ("SSI") under Title II of the Social Security Act. This matter is before me pursuant to 42 U.S.C. § 405(g) and the parties consented to my jurisdiction under 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. ECF Doc. 10. Because the ALJ's decision was supported by substantial evidence and because Shepherd has not identified any incorrect application of legal standards, the final decision of the Commissioner must be AFFIRMED.
On September 18, 2014, Shepherd applied for SSI. (Tr. 487).
On May 1, 2014, Shepherd was in a bus accident. She was treated at an emergency room at Marymount Hospital for possible ankle fracture and neck pain and was discharged. (Tr. 620). The same day, she returned to the hospital with complaints of increased back pain and worsening headache. (Tr. 624-625).
On May 5, 2014, Shepherd returned to the hospital complaining of increased swelling in her left ankle. X-rays showed possible osteochondritis but no evidence of fracture. (Tr. 645). An MRI of Shepherd's left ankle showed degenerative arthrosis, chronic sprain, posterior tibial tendinosis, tenosynovitis, and a non-displaced osteochondral defect of the medial talar dome. (Tr. 684-685).
Shepherd attended physical therapy from May 14, 2014 to June 20, 2014. (Tr. 1536-1552). Shepherd's therapist noted that she improved in pain free range of motion, particularly with her left ankle. However, her progress was limited due to her limited participation in therapy sessions. (Tr. 774).
On September 4, 2014, Shepherd underwent arthroscopic debridement of her left ankle with ligament debridement and repair and left tibial tendon debridement and repair. (Tr. 840-841). Shepherd then returned to physical therapy. (Tr. 954). An MRI of Shepherd's left ankle on January 22, 2015 showed changes suggesting scarring or fibrosis and prominent edema. (Tr. 1161).
Shepherd continued to treat for pain in her left ankle. She reported decreased mobility and started using a cane to walk. On June 8, 2017, Shepherd underwent a left talonavicular fusion of the left ankle. (Tr. 2165-2166). Following her surgery Shepherd was using a walker boot and rolling knee walker. However, her pain was controlled with medication and she was healing well with good pedal pulses and good sensation. (Tr. 2159). By August 2017, Shepherd no longer required a walker boot and was instructed to use a walker as she worked toward ambulating normally. (Tr. 2297-2298).
Shepherd also complained of pain in her neck and left shoulder. A physical examination in August 2014 showed tenderness in her left shoulder but full muscle strength, normal reflexes and intact sensation. (Tr. 701-702). An MRI showed subacromial impingement, a partial thickness tear of the supraspinatus tendon, and a labral anterior and posterior tear. (Tr. 698). A nerve conduction study in May 2015 showed no evidence of acute cervical radiculopathy. (Tr. 1682).
Shepherd reported increased arm and shoulder pain after she was involved in another motor vehicle accident in June 2015. (Tr. 1881). In November 2015, she underwent arthroscopic surgery on her left shoulder with excision of labral tear, release of the biceps tendon, and open subacromial decompression. (Tr. 1298).
In February 2016, Shepherd had diminished strength in her left shoulder, but her strength was otherwise normal, and she had a normal gait and normal peripheral sensation. (Tr. 1200). By June 2016, Shepherd had regained full range of motion in her left shoulder. (Tr. 1211).
December 2016 treatment notes show that Shepherd was using a cane to walk, but her strength was intact and symmetrical in all extremities. She had normal sensation and normal reflexes. (Tr. 1477-1478). In July 2017, Shepherd continued to complain of shoulder pain, but her physical examination showed that she had full range of motion in her left shoulder. (Tr. 2180-2181).
Shepherd also treated for mental impairments, depressive disorder and adjustment disorder with depressed mood. (Tr. 62, 987-988, 1034-1045, 1510-1518). Because Shepherd's appeal has raised no issue concerning the ALJ's assessment of these impairments, it is unnecessary to include a summary of them in this report.
On October 24, 2016, Dr. Ralph Kovach evaluated Shepherd for her workers' compensation claim. (Tr. 1523-1527). He noted that Shepherd had limited range of motion in her left shoulder, and tenderness and limited range of motion in her left ankle. He found that Shepherd had not reached maximum medical improvement, and that vocational rehabilitation was appropriate. (Tr. 1525-1527). He opined that Shepherd was unable to work at that time. (Tr. 1526).
On December 18, 2014, state agency physician Maria Congbalay, M.D. reviewed Shepherd's medical records and opined that she could perform light work. (Tr. 350-353).
Lynne Torello, M.D., reviewed Shepherd's records on July 15, 2015 and agreed with the functional limitations opined by Dr. Congbalay. (Tr. 368-370).
The only issue that Shepherd raises in this appeal is whether the ALJ considered the evidence from all three administrative hearings. The testimonial evidence from each of the hearings is summarized below.
ALJ Cheryl Rini conducted the first hearing on September 1, 2016. (Tr. 188). Shepherd graduated from high school but was in special education classes. She had training to be a state tested nurse's aide ("STNA"). She also obtained a commercial driver's license. (Tr. 202). She previously worked as a school bus driver and as an STNA. (Tr. 203-211, 216-220). Shepherd testified that she was unable to perform her past work.
Shepherd was involved in an accident while driving a bus. Another bus hit her and she was ejected out the front window of her bus. (Tr. 213-214).
Shepherd was using a cane at the administrative hearing. It was prescribed by a nurse practitioner a month before the hearing. (Tr. 224).
A vocational expert, Dr. Robin Mosley ("VE") briefly testified at the first hearing. The VE considered Shepherd's past work to be that of a school bus driver, school bus monitor and a nurse's aide. (Tr. 220).
This first administrative hearing was cut short and continued because many of Shepherd's medical records were not in the file. A supplemental hearing was scheduled for January 10, 2017. (Tr. 247).
ALJ Rini conducted the supplemental hearing on January 10, 2017. (Tr. 245-306). Shepherd described her medical history since the 2014 accident to ALJ Rini. Shepherd experienced many different physical problems stemming from the accident. (Tr. 260-273). The ALJ determined that there were still records that had not been provided by Shepherd's attorney. (Tr. 260-272). Shepherd underwent surgeries to her left ankle and left shoulder. She was going to have another surgery for her ankle because a cyst had developed at the previous surgical site. (Tr. 268-269). She also described some recent breathing problems. (Tr. 264).
Shepherd estimated that she could stand for about ten minutes. (Tr. 279). She stated that she could walk about ten steps — would need to rest for one minute — and then could walk ten more steps. However, she felt that she would need to rest for 20 minutes before she would be able to walk ten steps a third time. (Tr. 280). Sometimes Shepherd could lift a gallon of milk but sometimes it would fall out of her hand. She estimated that she could normally lift a gallon of milk if using both hands. (Tr. 286). Shepherd could reach over her head with her right hand but not her left. (Tr. 281). Shepherd testified that she spent about five hours sitting each day. (Tr. 287). She spent about a half hour per day standing or walking. (Tr. 291). She had constant pain in her left shoulder, left leg and foot. (Tr. 282).
Shepherd was able to do housework. It took her two days to do it, and she received help from her 13 year-old daughter and her 21 year-old daughter. (Tr. 284). Shepherd was no longer able to cook and ate a lot of TV dinners. (Tr. 285). She had trouble sleeping most nights, but usually took a two and a half hour nap in the afternoon. (Tr. 286, 288).
A new vocational expert, Thomas Nimberger, testified at the second hearing. (Tr. 248). Shepherd stipulated to the previous work determined by VE Mosley — school bus driver, school bus monitor and nurse's aide. (Tr. 220, 259). VE Nimberger testified that an individual with Shepherd's education and previous work experience who could lift and/or carry 20 pounds occasionally and 10 pounds frequently; could stand and/or walk six to eight hours a day and sit six to eight hours a day; could only frequently use foot controls with the left foot; could never climb any ladders, ropes or scaffolds; could occasionally climb ramps or stairs; could frequently balance, stoop, kneel, crouch and crawl; could frequently reach overhead with the left arm; must avoid work at unprotected heights, around dangerous moving machinery, or wet, slippery or uneven surfaces; could complete three to four-step tasks with adequate pace and endurance; could have occasional or superficial interaction with the public; and must have any changes in the work setting explained well, would not be able to perform Shepherd's previous jobs. (Tr. 295-296). However, this individual would be able to work as a packager, a bench assembler, or a mail clerk. There were significant numbers of these jobs in the national economy. (Tr. 297).
If the individual was limited to sedentary jobs, she could perform the jobs of polisher, mailing house worker or addresser, a call out operator and a document preparer. (Tr. 302-303). If the individual was limited to using only one arm or one hand, she would not be able to perform those jobs. (Tr. 298). If the individual was limited to standing two hours a day, she would not be able to perform the jobs of packager or mail clerk. (Tr. 298-299). If the person required a nap for three hours a day, no jobs would be available for the individual. (Tr. 299).
The VE testified that employers tolerate between one to ten percent of off-task time during the workday. (Tr. 299). The VE opined that no jobs would be available for individuals who missed two or more days of work per month. (Tr. 300-301).
Because ALJ Rini became unavailable, a third administrative hearing took place on September 7, 2017 before newly-assigned ALJ Frederick Andreas. (Tr. 309-310). Before the hearing, ALJ Andreas reviewed the information in the record and concluded he could not make a decision based on the record, noting he could only issue a decision under that circumstance if it were fully favorable. For that reason, he scheduled another hearing. (Tr. 310). Shepherd's attorney asked if the transcript from the prior hearing was going to be made a part of the record. The ALJ informed the attorney that the audio recording was part of the record but that it had not been transcribed. (Tr. 311-312)
Shepherd explained that she had been involved in a bus accident. She had prior work experience as a school bus driver and as a nurse's assistant. (Tr. 316). Shepherd stated that she could no longer work due to the pain from her foot to the middle of her back. (Tr. 316). She took pain medication and used a TENS unit to alleviate the pain. (Tr. 322) She compared the pain to child labor pains. (Tr. 322). Shepherd could not sleep continuously due to pain; she slept about two hours at a time. (Tr. 324).
Shepherd's workers' compensation claim was ongoing. She had undergone another surgery three months earlier, on June 8th, and was still waiting for physical therapy to be approved. (Tr. 317). She was still wearing a long surgical boot. (Tr. 327).
Shepherd explained that she had two surgeries on her left ankle and one on her left shoulder. (Tr. 318). She was unable to lift ten pounds due to her shoulder. She estimated she could lift five to six pounds. (Tr. 319). Since the accident, her pain levels had improved. (Tr. 320). However, she was no longer able to cook or clean. Her daughters did these things for her. (Tr. 321). On good days she had the TV on and would fall asleep. (Tr. 321). On bad days, she was unable to get off the couch. She hadn't been up her stairs for over eight weeks. (Tr. 322).
Shepherd was being treated for depression. She also had diabetes. (Tr. 323). She used an inhaler for breathing. (Tr. 327).
VE Mark Anderson testified at the third hearing. (Tr. 331-339). The VE considered Shepherd's past work to be that of a bus driver and a nurse's assistant. (Tr. 332). The VE opined that an individual with Shepherd's education and work history who could perform work at the light exertional level but pushing and pulling with the lower extremities was limited to frequently; she could climb ramps and stairs
If the individual were unable to ambulate more than two hours; could only reach overhead occasionally and could not use foot pedals that required bilateral or left foot use, she would still be able to perform the jobs of electronics worker and inspector/hand packager. She would not be able to perform the job of assembler of small products but would be able to perform the job of mail clerk. (Tr. 335). If the individual was reduced to work at the sedentary level, she would be able to perform the jobs of patcher, touch-up screener, and table worker. (Tr. 336).
The VE testified that employers will usually tolerate up to two absences, tardiness or leaving early per month. (Tr. 334). They will also tolerate an individual being off-task up to 15% of the workday. (Tr. 336).
The ALJ made the following findings relevant to this appeal:
Based on all his findings, the ALJ determined that Shepherd was not under a disability from May 1, 2014, the alleged onset date, through the date of his decision. (Tr. 66).
The court reviews the Commissioner's final decision to determine whether it was supported by substantial evidence and whether proper legal standards were applied. 42 U.S.C. §§ 405(g), 1383(c)(3); Elam v. Comm'r of Soc. Sec., 348 F.3d 124, 125 (6th Cir. 2003). Substantial evidence is any relevant evidence, greater than a scintilla, that a reasonable person would accept as adequate to support a conclusion. Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
Under this standard, the court cannot decide the facts anew, evaluate credibility, or re weigh the evidence. Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003). If supported by substantial evidence and reasonably drawn from the record, the Commissioner's factual findings are conclusive — even if this court might reach a different conclusion or if the evidence could have supported a different conclusion. 42 U.S.C. §§ 405(g), 1383(c)(3); see also Elam, 348 F.3d at 125 ("The decision must be affirmed if . . . supported by substantial evidence, even if that evidence could support a contrary decision."); Rogers, 486 F.3d at 241 ("[I]t is not necessary that this court agree with the Commissioner's finding, as long as it is substantially supported in the record."). This is so because the Commissioner enjoys a "zone of choice" within which to decide cases without being second-guessed by a court. Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986).
Even if supported by substantial evidence, however, the court will not uphold the Commissioner's decision when the Commissioner failed to apply proper legal standards, unless the error was harmless. Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2006) ("[A] decision . . . will not be upheld [when] the SSA fails to follow its own regulations and [when] that error prejudices a claimant on the merits or deprives the claimant of a substantial right."); Rabbers v. Comm'r Soc. Sec. Admin., 582 F.3d 647, 654 (6th Cir. 2009) ("Generally, . . . we review decisions of administrative agencies for harmless error."). Furthermore, the court will not uphold a decision, when the Commissioner's reasoning does "not build an accurate and logical bridge between the evidence and the result." Fleischer v. Astrue, 774 F.Supp.2d 875, 877 (N.D. Ohio 2011) (quoting Sarchet v. Charter, 78 F.3d 305, 307 (7th Cir. 1996)); accord Shrader v. Astrue, No. 11-13000, 2012 U.S. Dist. LEXIS 157595 (E.D. Mich. Nov. 1, 2012) ("If relevant evidence is not mentioned, the court cannot determine if it was discounted or merely overlooked."); McHugh v. Astrue, No. 1:10-CV-734, 2011 U.S. Dist. LEXIS 141342 (S.D. Ohio Nov. 15, 2011); Gilliams v. Astrue, No. 2:10 CV 017, 2010 U.S. Dist. LEXIS 72346 (E.D. Tenn. July 19, 2010); Hook v. Astrue, No. 1:09-CV-19822010, 2010 U.S. Dist. LEXIS 75321 (N.D. Ohio July 9, 2010). Requiring an accurate and logical bridge ensures that a claimant will understand the ALJ's reasoning.
The Social Security regulations outline a five-step process the ALJ must use to determine whether a claimant is entitled to benefits: (1) whether the claimant is engaged in substantial gainful activity; (2) if not, whether the claimant has a severe impairment or combination of impairments; (3) if so, whether that impairment, or combination of impairments, meets or equals any of the listings in 20 C.F.R. § 404, Subpart P, Appendix 1; (4) if not, whether the claimant can perform her past relevant work in light of her RFC; and (5) if not, whether, based on the claimant's age, education, and work experience, she can perform other work found in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v); Combs v. Comm'r of Soc. Sec., 459 F.3d 640, 642-43 (6th Cir. 2006). Although it is the Commissioner's obligation to produce evidence at Step Five, the claimant bears the ultimate burden to produce sufficient evidence to prove that she is disabled and, thus, entitled to benefits. 20 C.F.R. §§ 404.1512(a), 416.912(a).
Shepherd argues that the ALJ failed to follow Social Security regulations by failing to incorporate her testimony during the first two administrative hearings. ECF Doc. 11 at 5. She cites the following portion of SSR 16-3, 2016 SSR LEXIS 4 in support of her argument:
Shepherd argues that ALJ Andreas failed to follow this regulation because he did not incorporate transcripts of the first two hearings. Shepherd argues that this shows that ALJ Andreas did not consider her testimony from these hearings when assessing her credibility. But, as argued by the Commissioner, failing to incorporate transcripts does not necessarily prove that the ALJ didn't consider Shepherd's testimony from the prior administrative hearings.
During the third hearing, the following discussion took place between Shepherd's attorney and the ALJ:
(Tr. 311). This dialogue does not prove that the ALJ didn't listen to the audio tapes before issuing his decision. Thus, even if Shepherd is correct that the ALJ was required to consider the testimony from the first two hearings, there is no evidence that he didn't.
Shepherd recognizes that the ALJ's credibility findings are to be accorded great weight but argues that he is not permitted to simply recite the factors from SSR 16-3. She cites this section of SSR 16-3 in support:
The ALJ's decision cited several examples of Shepherd's complaints not matching the medical evidence. He noted that she was "constantly" seeking pain medication for at least a "half a dozen" different pain complaints that varied over time. "However, her physical examinations remained unremarkable with only `mildly' restricted range of motion in her left shoulder." And, her doctor was recommending conservative treatment and a bone scan showed minimal arthritis. (Tr. 61). In December 2016, even though Shepherd used a cane to walk, "her strength was intact and symmetrical in all extremities, she had normal sensation and normal reflexes." (Tr. 62) Finally, in considering Shepherd's credibility, the ALJ stated:
(Tr. 62). The ALJ did not simply recite the factors described in the regulations for evaluating symptoms. He compared Shepherd's statements to the medical evidence and, citing specific medical records, he explained why he did not find it to be entirely consistent with Shepherd's testimony.
Shepherd also contends that the ALJ violated an internal HALLEX directive addressing situations when administrative judges conduct hearings but are unavailable to issue a decision. HALLEX I-2-8-40 provides that "if the [newly assigned] ALJ holds a new hearing, the ALJ will consider all pertinent documentary evidence admitted into the record at the prior hearing, the oral testimony at the prior hearing, and the evidence and the testimony adduced at the new hearing when making a decision."
HALLEX I-2-40(B) provides that, when a case is reassigned, the new ALJ:
At the outset of the hearing, the ALJ stated, "I reviewed the information in the record and determined I couldn't make a decision based on the decision in the record. It would have had to have been a fully favorable decision so we're here for a hearing..." This statement certainly gives the impression that the ALJ was following the instructions from HALLEX.
But, even if he didn't follow the instructions from HALLEX, Shepherd hasn't shown that she was prejudiced by this alleged procedural error. HALLEX is an internal manual that serves to convey "`guiding principles, procedural guidance and information' to adjudicators and staff of the Office of Hearings and Appeals." Bowie v. Comm'r of Soc. Sec., 539 F.3d 395, 397 (6th Cir. 2008). District courts that have granted relief for failure to comply with HALLEX have required that the plaintiff demonstrate prejudice from the failure to follow the procedures. Creech v. Comm'r of Soc. Sec., 581 F. App'x 519, 520 (6th Cir. 2014).
Shepherd has not cited any testimony from her first two administrative hearings that would have made any difference in the ALJ's decision. Shepherd's testimony at the three hearings was generally consistent. She gave similar descriptions of her symptoms and functional abilities at all of the hearings (with the exception that she had another surgery between the second and third hearings). The fact that Shepherd doesn't cite any of her testimony from the hearings is telling. She has not demonstrated prejudice from the ALJ's alleged failure to follow HALLEX I-2-8-40.
There is no evidence that the ALJ failed to consider Shepherd's testimony from the first two administrative hearings. And, Shepherd fails to cite any testimony from the first two hearing that would have made any difference in the ALJ's decision. Because the ALJ's decision was supported by substantial evidence and because Shepherd has not identified any prejudicial incorrect application of legal standards, the final decision of the Commissioner is AFFIRMED.
IT IS SO ORDERED.
