BARBARA D. HOLMES, Magistrate Judge.
Plaintiff filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff's claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"), as provided by Title II, 42 U.S.C. §§ 416(i) and 423(d), and Title XVI, 42 U.S.C. §§ 1381 et seq., of the Social Security Act ("the Act"). The case is currently pending on Plaintiff's motion for judgment on the administrative record (Docket Entry No. 13), to which Defendant has filed a response (Docket Entry No. 17).
Upon review of the Administrative Record as a whole, the Court recommends that Plaintiff's motion for judgment on the administrative record (Docket Entry No. 14) be granted, the decision of the Social Security Administration be reversed, and this matter be remanded for further administrative proceedings consistent with this Report.
In August 2010, Plaintiff protectively filed for DIB and SSI. See Transcript of the Administrative Record (Docket Entry No. 11),
Plaintiff's applications were denied initially and upon reconsideration. AR 90-105. Pursuant to her request for a hearing before an administrative law judge ("ALJ"), Plaintiff appeared with counsel and testified at a hearing before ALJ Renee S. Andrews-Turner on November 9, 2012. AR 34. On January 31, 2013, the ALJ issued a decision unfavorable to Plaintiff. AR 10. On March 17, 2013, the Appeals Council denied Plaintiff's request for review of the ALJ's decision, AR 1-6, thereby making the ALJ's decision the final decision of the Commissioner. This civil action was thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. §§ 405(g) and 1383(c).
The ALJ issued an unfavorable decision on January 31, 2013. AR 10-33. Based upon the record, the ALJ made the following enumerated findings:
AR 15-27.
The parties and the ALJ have thoroughly summarized and discussed the medical and testimonial evidence of the Administrative Record. Accordingly, the Court will discuss those matters only to the extent necessary to analyze the parties' arguments.
The determination of disability under the Act is an administrative decision. The only questions before this Court upon judicial review are: (i) whether the decision of the Commissioner is supported by substantial evidence and (ii) whether the Commissioner made legal errors in the process of reaching the decision. 42 U.S.C. § 405(g).
Substantial evidence is defined as "more than a mere scintilla" and "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
The Court's review of the Commissioner's decision is limited to the record made in the administrative hearing process,
The claimant has the ultimate burden of establishing an entitlement to benefits by proving his or her "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). The asserted impairment(s) must be demonstrated by medically acceptable clinical and laboratory diagnostic techniques.
In the proceedings before the Social Security Administration, the Commissioner must employ a five-step, sequential evaluation process in considering the issue of the claimant's alleged disability.
If the claimant's impairment does not render him or her presumptively disabled, the fourth step evaluates the claimant's residual functional capacity in relationship to their past relevant work.
If a claimant is not presumed disabled but shows that past relevant work cannot be performed, the burden of production shifts at step five to the Commissioner to show that the claimant, in light of the claimant's RFC, age, education, and work experience, can perform other substantial gainful employment and that such employment exists in significant numbers in the national economy.
If the question of disability can be resolved at any point in the sequential evaluation process, the claim is not reviewed further. 20 C.F.R. § 404.1520(a)(4).
The ALJ found that Plaintiff met the first two steps, AR 15, but was not presumptively disabled because she did not have an impairment or combination of impairments that meets or medically equals the severity of a listed impairment. AR 16-17. However, the ALJ found that Plaintiff's impairments rendered her unable to perform her past relevant work, AR 26, and, thus triggered the fifth step of the inquiry. At the fifth step, the ALJ found that Plaintiff's RFC allowed her to perform light work with certain limitations as set out in the ALJ's findings, AR 17-25, and that, considering her age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. AR 26-27.
Plaintiff argues that the ALJ erred by: 1) failing to find Plaintiff's cervical impairment to be a severe impairment; 2) failing to analyze whether Plaintiff's cervical and lumbar impairments meet or equal listing 1.04 under 20 C.F.R. § 404, Subpart P, Appendix I; and 3) not relying upon substantial evidence in making the step five determination because the ALJ posed a hypothetical question to the vocational expert that did not accurately portray her RFC limitations. See Docket Entry No. 13-1, at 1. Plaintiff argues that the ALJ committed reversible error at steps 2, 3, and 5 of the evaluation process requiring that the Commissioner's decision should be reversed, or in the alternative, remanded.
The Court addresses Plaintiff's first and third assertions of error first. As set out below, neither of these assertions of error warrants relief. At best, both assertions of error raise only harmless error. However, the Court finds that Plaintiff's second assertion of error has merit and warrants a remand to the ALJ for further proceedings.
Plaintiff argues that the record contains ample evidence that she suffers from a cervical disorder that should have been deemed a severe impairment by the ALJ at step two of the evaluation process. See Docket Entry No. 13-1 at 7-8. Defendant contends that Plaintiff did not allege disability on the basis of a cervical impairment, see Docket Entry No. 17 at 5, and that, although there is evidence in the record showing that Plaintiff complained of and received treatment for neck pain, Plaintiff fails to point to evidence in the record that the alleged cervical disorder had any, much less "more than minimal" as the legal standard requires, effect on her ability to work. Id. at 7. Finally, Defendant contends that, because the ALJ found Plaintiff had at least one severe impairment and considered Plaintiff's overall impairments in combination, a remand for the ALJ to identify additional impairments as severe is not necessary. Id. at 8-9.
Plaintiff bears the burden to show that a medically determinable impairment is severe and that it meets the twelve-month durational requirements of the Act. See Harley v. Comm'r of Social Sec., 485 Fed.App'x 802, 803 (6th Cir. 2012). A severe impairment is "any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities." Barnhart v. Thomas, 540 U.S. 20, 24, 124 S.Ct. 376, 157 L. Ed.2d 333 (2003) (citing 20 C.F.R. §§ 404.1520(c), 416.920(c)).
The Court agrees with Defendant that Plaintiff did not allege a cervical disorder as a cause of her disability and further agrees that, while Plaintiff has pointed to evidence in the record showing that she suffers from a cervical impairment, she has not pointed to specific evidence in the record showing that her cervical impairment had any effect on her ability to perform basic work activities. However, even if Plaintiff had satisfied her burden at step two, any error by the ALJ in failing to specifically find Plaintiff to have a severe cervical impairment would not require reversal or remand because the ALJ clearly found that Plaintiff had other impairments that were severe. If the ALJ finds that at least one of the claimant's alleged impairments is severe in nature, the claim survives the step two screening process, 20 C.F.R. § 404.1520(a)(4); Anthony v. Astrue, 266 Fed.App'x 451, 457 (6th Cir. 2008), and both severe and non-severe impairments are to be considered by the ALJ in the remaining steps of the disability evaluation process. 20 C.F.R. §§ 404.1523 and 404.1545(a)(2). Thus, courts have consistently held that an ALJ does not commit reversible error when the ALJ fails to find that some impairments are severe but finds that other impairments are severe and proceeds with the next step of the evaluation process. Maziarz v. Sec'y Health & Human Serv., 837 F.2d 240, 244 (6th Cir. 1987). See McGlothin v. Comm'r of Soc. Sec., 299 Fed.App'x. 516, 522 (6th Cir. 2008); Anthony, supra; Fisk v. Astrue, 253 Fed. App'x. 580, 583 (6th Cir. 2007).
In this case, the ALJ found that Plaintiff had four severe impairments, AR 15, and proceeded to the next step of the evaluation process. The lack of a finding that Plaintiff had a severe cervical impairment did not preclude the ALJ from finding other severe impairments, did not result in a conclusion that Plaintiff was not disabled, and did not halt the five step evaluation process. Accordingly, this assertion of error amounts to harmless error and fails to warrant relief.
At step 4 of the evaluation process, the ALJ found that Plaintiff had a "light work" RFC but had several specific limitations, two of which were "tolerate occasional exposure to moving mechanical parts" and "can adapt to infrequent change." AR 17. Plaintiff contends that, when the ALJ posed hypothetical questions to the vocational expert testifying at the administrative hearing regarding jobs that would exist in the national economy for an individual with certain limitations, the ALJ did not correctly refer to these two limitations but instead referred to less restrictive limitations of "frequent exposure to moving mechanical parts" and "can adapt to frequent change in the workplace." AR 64-65. Plaintiff argues that, consequently, the ALJ's step five analysis and finding that Plaintiff can transition to other work is not supported by substantial evidence because the vocational expert's testimony was based on hypothetical limitations that were ultimately not found credible, not supported by the record, and not included in the ALJ's ultimate RFC for Plaintiff. See Docket Entry No. 13-1, at 11-12.
Defendant responds by first asserting that no actual inconsistency exists between the ALJ's RFC limitations and the hypothetical question with respect to the ability to adapt to change in the workplace limitation because the alleged error is based upon a mistake in the transcription of the administrative hearing audio, a mistake that was not discovered until the issue was raised in Plaintiff's brief. Defendant asserts that, although the original transcript of the administrative hearing indicated that the ALJ's hypothetical question involved an individual with the ability to adapt to "frequent change," a review of the hearing audio recording revealed that the ALJ actually referenced adapting to "infrequent change," which is consistent with the language of the ALJ's RFC finding. A corrected hearing transcript has been submitted reflecting the correct transcription. See Docket Entry No. 15. Accordingly, Defendant contends that this issue does not support Plaintiff's allegation of error. The Court agrees with Defendant on this issue.
With respect to the other claimed inconsistency at issue, Defendant acknowledges that the ALJ's hypothetical question contained a less restrictive limitation on exposure to moving mechanical parts than was ultimately included in the ALJ's RFC for Plaintiff. See Docket Entry No. 17, at 17. However, Defendant contends that, according to the Dictionary of Occupational Titles ("DOT"), the jobs identified by the vocational expert as those that could be performed by an individual with the limitations posed by the ALJ do not require exposure to moving mechanical parts at all, and thus it would not have altered the expert's findings if the correct limitation of "occasional exposure to moving mechanical parts" had been part of the hypothetical question. Id. Defendant argues that, because this inconsistency would not render the ALJ's reliance upon the vocational expert's testimony erroneous, substantial evidence in the record as a whole supports the ALJ's decision, and remand is unnecessary. Id. Although not stated as such, Defendant is raising a harmless error argument.
As recently stated by the Sixth Circuit in addressing alleged error by the ALJ based on hypothetical questions posed to a vocational expert:
Smith-Johnson v. Comm'r of Soc. Sec., 579 Fed.App'x 426, 436 (6th Cir. 2014). See Keeton v. Comm'r of Soc. Sec., 583 Fed. App'x 515, 533 (6th Cir. 2014). Essentially, the hypothetical question posed to the vocational expert must include an accurate calculation of the claimant's residual functional capacity — i.e., "a description of what the claimant `can and cannot do.'" Cooper v. Comm'r of Soc. Sec., 217 Fed.App'x 450, 453 (6th Cir. 2007) (quoting Webb v. Commissioner of Social Security, 368 F.3d 629, 631 (6th Cir. 2004).
In the instant case, the record shows that the ALJ relied upon the vocational expert's testimony in making the step five determination:
AR 26-27. Because the hypothetical question posed by the ALJ inaccurately conveyed Plaintiff's RFC limitation of "occasional exposure to moving mechanical parts," AR 65, Plaintiff's limitations were not fully and accurately conveyed to the vocational expert in the hypothetical. Thus, the ALJ committed error by relying upon the vocational expert's testimony in making the step five decision that Plaintiff was capable of making a successful adjustment to other work. Ealy, 594 F.3d at 517. Generally, such error causes the ALJ's conclusion that the claimant can perform other work and is thus not disabled to lack substantial supporting evidence. Id.
However, decisions of administrative agencies are nonetheless subject to harmless error review. See Rabbers v. Comm'r Soc. Sec. Admin., 582 F.3d 647, 654 (6th Cir. 2009); Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). See also Irvin v. Soc. Sec. Admin., 573 Fed.App'x 498, 502 (6th Cir. 2014); Potter v. Comm'r of Soc. Sec., 223 Fed.App'x 458, 463 (6th Cir. May 8, 2007). Accordingly, a reviewing court should not remand for further administrative proceedings unless the claimant has been prejudiced on the merits or deprived of substantial rights because of the alleged error. Rabbers, 582 F.3d at 654. Furthermore, the Sixth Circuit has suggested that "where remand would be an idle and useless formality, courts are not required to convert judicial review of agency action into a ping-pong game." Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 547 (6th Cir. 2004) (internal quotations omitted).
The three occupations noted by the vocational expert in response to the ALJ's hypothetical, which were relied upon and included by the ALJ in the step five finding, were ticket agent, food service worker, and inspector. AR 27 and 66. Defendant correctly points out that DOT listings for these three occupations do not require exposure to moving mechanical parts as indicated by the notation "Moving Mech. Parts: Not Present—Activity or condition does not exist." in the description for each position. See DOT Nos. 211.467-018 (Parimutuel—Ticket Cashier), 1991 WL 671850; 311.472-010 (Fast-Foods Worker), 1991 WL 672682; and 920.687-054 (Can Patcher), 1991 WL 687974.
The record as a whole shows that the ALJ satisfied her burden at step five of the evaluation process of having substantial evidence to support her finding, and the Court is unable to ascertain any harm suffered by Plaintiff in connection with the inaccurate hypothetical question. The Court finds that Plaintiff was not prejudiced on the merits or deprived of a substantial right because of the alleged error by the ALJ. Plaintiff's allegation of error requiring reversal or remand lacks merit. See Bennett v. Colvin, 2015 WL 574631, at *6-7 (E.D. Ky. Feb. 11, 2015) (ALJ's failure to include limitation in hypothetical question posed to vocational expert was harmless error).
Plaintiff contends that, at step three of the evaluation process, the ALJ considered only whether her mental impairments meet or equal a medical listing under 20 C.F.R. § 404, Subpart P, Appendix I, and did not analyze or even discuss her physical impairments either for the full period of disability alleged or any part thereof. AR 16-17. Plaintiff asserts that the record contains significant evidence relating to her cervical and lumbar impairments that raises a substantial question as to whether these impairments meet or equal listing 1.04 of 20 C.F.R. § 404, Subpart P, Appendix I, which includes a listing for "Disorders of the Spine" that result in "a compromise of a nerve root" or "the spinal cord."
In response, Defendant argues that the ALJ's entire decision, not just that section addressing step three, can be relied upon for statements supporting the ALJ's step three analysis, see Docket Entry No. 17 at 10, and that substantial evidence exists in the record as a whole supporting the ALJ's finding that Plaintiff does not have an impairment or combination of impairments that meet or medically equal one of the listed impairments. Id. at 9. Defendant points out that it is Plaintiff, not the Commissioner, who has the burden at step three, Her v. Comm'r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999), and that the medical evidence set forth by Plaintiff fails to show that she meets every requirement for Listing 1.04A for nerve root compression. Id. at 14-15.
At the third step, the ALJ must determine whether the claimant's impairment meets or is equivalent in severity to a listed . . . disorder." Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 653 (6th Cir. 2009). A claimant will be found disabled if her impairment meets or equals one of the listings in the Listing of Impairments. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); Turner v. Comm'r of Soc. Sec., 381 Fed. Appx. 488, 491 (6th Cir. 2010). The Listing of Impairments describes impairments the Social Security Administration considers to be "severe enough to prevent an individual from doing any gainful activity, regardless of his or her age, education, or work experience." 20 C.F.R. § 404.1525(a). In other words, a claimant who meets the requirements of a Listed Impairment will be deemed conclusively disabled, and entitled to benefits.
The opening paragraph of the ALJ's step three explanation in the instant case states:
AR 16. The ALJ then sets out several paragraphs explaining in detail her reasoning regarding Plaintiff's mental impairments and why the mental impairments did not meet or equal a listing. AR 16-17.
Despite specifically finding at step two that Plaintiff's degenerative disc disease of the lumbar spine constituted a severe impairment, and despite discussing in detail why Plaintiff's severe mental impairments did not meet or equal a listed impairment, the ALJ did not provide a specific and detailed analysis of why Plaintiff's physical impairments did not meet or equal a listing. The Court acknowledges that an ALJ's explanation at the third step "need not be elaborate," Staggs v. Astrue, 2011 WL 3444014, at *3 (M.D. Tenn. Aug. 8, 2011) (Nixon, J.), and that the step three analysis is not judged by a "heightened articulation standard" requiring the ALJ to spell out every consideration that went into the step three determination or to discuss every single impairment. Bledsoe v. Barnhart, 165 Fed.App'x 408, 411 (6th Cir. 2006). Nonetheless, given that it is the ALJ's duty to compare the medical evidence to the requirements for a listed impairment, the ALJ must provide a decision that is sufficient to allow the Court to engage in meaningful judicial review. Reynolds v. Comm'r of Soc. Sec., 424 Fed.App'x 411, 416 (6th Cir. 2011) (remanding because the ALJ failed to offer any analysis explaining decision that a claimant's severe impairment of "back pain" did not meet or equal a listed impairment at Listing 1.00). Without such a sufficiently explained conclusion, "it is impossible to say that the ALJ's decision at Step Three was supported by substantial evidence." Id. See also Marok v. Astrue, 2010 WL 2294056, at *3 (N.D. Ohio June 3, 2010) (collecting cases). As stated by the Sixth Circuit Court of Appeals, the ALJ "should discuss the relevant listing, however, where the record raises `substantial question as to whether [the claimant] could qualify as disabled' under a listing." Smith-Johnson v. Comm'r of Soc. Sec., 579 Fed.App'x 426, 432 (6th Cir. 2014) (quoting Abbott v. Sullivan, 905 F.2d 918, 925 (6th Cir.1990)).
Both parties have pointed to significant medical evidence in the administrative record that each contends supports a conclusion that the medical evidence either does or does not meet or equal Listing 1.04A. Although Defendant argues that the evidence fails to provide a sufficient basis for a finding that Plaintiff can meet her ultimate burden of proving that her physical impairments meets or equals all the requirements of Listing 1.04A, the Court finds that the evidence is conflicting and could be interpreted in favor of Plaintiff regarding the requirements of the listing. "It is the role of the ALJ to resolve conflicts within the evidence." Baldwin v. Astrue, 2009 WL 4571850, at *4 (E.D. Ky. Dec.1, 2009) (citing Buxton v. Halter, 246 F.3d 762, 775 (6th Cir. 2001)). Plaintiff's presentation of substantial items of specific evidence in the record is sufficient to show that a substantial question exists as to whether she can meet or equal the listing and, thus, Plaintiff satisfies her burden of establishing that an ALJ committed reversible error at step three. See Smith-Johnson, 579 Fed. App'x. at 432. But cf. Forrest v. Comm'r of Soc. Sec., 591 F. App'x 359, 366 (6th Cir. 2014) (finding ALJ's "sparse" step three analysis was harmless error because claimant failed to set forth evidence that his impairments met or medically equaled in severity any listed impairment). This is not a case in which Plaintiff has complained in only a general sense that the ALJ failed to determine whether her impairments met or equaled unspecified listed impairments or a case in which Plaintiff has only set forth a few pieces of tenuous evidence in support of her argument.
Defendant is correct that the Court can look to other portions of the ALJ's decision to find support for the ALJ's decision that Plaintiff's physical impairments meet or equal a listed impairment. Staggs, 2011 WL 3444014, at *4. Certainly, the section of the ALJ's decision addressing step four of the evaluation process contains a substantial summary and discussion of the Plaintiff's physical impairments. However, that section contains no analysis of why the ALJ did not find Plaintiff's physical impairments did not meet or equal Listing 1.04A. For the Court to make a conclusion as to the step three decision essentially requires the Court to weigh the evidence that is in the record, resolve any conflicting evidence, and substitute it own analysis for an analysis of the ALJ that is not readily apparent from the decision. Rather, the more appropriate course is to "vacate and remand the case for a discussion of the evidence and an explanation of reasoning" that supports the ALJ's determination that Plaintiff's severe physical impairments do not meet or medically equal Listing 1.04A. Reynolds, 424 Fed.App'x at 416 (quoting Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 120 (3d Cir. 2000)). See also Burbridge v. Comm'r of Soc. Sec., 572 Fed.App'x 412, 416 (6th Cir. 2014) (relying on Reynolds as support for finding remand to ALJ for further findings on step three analysis).
For the above stated reasons it is recommended that Plaintiff's motion for judgment on the administrative record (Docket Entry No. 13) be GRANTED and that this case be REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for consideration of whether Plaintiff's physical impairments meet or equal Listing 1.04A.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court within fourteen (14) days of service of this Report and Recommendation and must state with particularity the specific portions of this Report and Recommendation to which objection is made. Failure to file written objections within the specified time can be deemed a waiver of the right to appeal the District Court's Order regarding the Report and Recommendation.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04A.