LANNY KING, Magistrate Judge.
Plaintiff filed a Complaint seeking judicial review, pursuant to 42 U.S.C. § 405(g), of the final decision of the Commissioner denying his claim for Social Security disability benefits. Docket 1. The Commissioner filed an electronic copy of the administrative record. Docket 12. Plaintiff filed his Motion for Judgment on the Record, along with a supporting Memorandum of Law. Dockets 15 and 16. The Commissioner responded in opposition to Plaintiff's motion. Docket 17. The matter is ripe for determination.
On December 6, 2017, the Court referred the matter to the undersigned Magistrate Judge pursuant to 28 U.S.C. §§ 631 and 636 and Administrative Order No. 24. Section 631 authorizes designation of magistrate judges to serve in districts adjoining the district for which they were appointed. 28 U.S.C. § 631. Administrative Order No. 24 was entered on June 12, 2017, and signed by the Chief Judges for the Middle District of Tennessee and the Western District of Kentucky. Section 636 authorizes magistrate judges to submit reports and recommendations to district judges on any case-dispositive matter. 28 U.S.C. § 636.
The Court finds the administrative law judge's (ALJ's) decision was supported by substantial evidence and was in accord with applicable legal standards; therefore, the RECOMMENDATION will be that the Court DENY Plaintiff's Motion for Judgment on the Record (Docket 15); AFFIRM the Commissioner's final decision; and DISMISS Plaintiff's complaint.
On February 2, 2014, Plaintiff filed applications for disability insurance benefits (DIB) pursuant to Title II of the Social Security Act and supplemental security income (SSI) benefits pursuant to Title XVI alleging disability beginning on September 4, 2012, when he stopped working. In May 2016, the ALJ issued a partially-favorable decision, finding that Plaintiff became disabled on March 8, 2013, when he was hospitalized for congestive heart failure. ALJ's decision, Administrative Record (AR), Docket 12, pp. 20-30. The ALJ determined that Plaintiff is entitled to DIB because he remained insured for DIB through the date of her decision. AR, p. 22. The ALJ informed Plaintiff that another branch of the Administration would advise him as to whether he satisfies the non-disability requirements for receipt of SSI benefits. AR, p. 30.
The ALJ found that, as of March 8, 2013, Plaintiff was restricted to sedentary work and, therefore, disabled at the fifth and final step of the sequential evaluation process based on a direct application of Rule 201.14
The ALJ found that, prior to March 8, 2013, Plaintiff was not disabled at the second step of the evaluation process. Specifically, the ALJ found that, although Plaintiff suffered from a medically-determinable impairment consisting of a "remote history of lumbar degenerative disc disease with radiculopathy," the impairment was not "severe," or vocationally significant, and did not satisfy the 12-month durational requirement.
Plaintiff's position is that the ALJ erred in finding him disabled as of March 8, 2013, rather than accepting his alleged onset of disability date of September 4, 2012.
(Docket 16, p. 4).
As indicated above, the ALJ found that, prior to March 8, 2013, Plaintiff suffered from no medically-determinable impairment that was "severe" and satisfied the 12-month durational requirement. AR, p. 23.
At the second step of the sequential evaluation process, Plaintiff carries the burden of proving that he had a severe impairment satisfying the durational requirement. Harley v. Comm'r of Soc. Sec., 485 F. App'x 802, 803 (6th Cir. 2012) (citing Her v. Comm'r, 203 F.3d 388, 391 (6th Cir.1999)). To meet this burden, he must show that he suffered from an impairment that had lasted or was expected to last for a continuous period of at least twelve months and that the impairment significantly limited his ability to do basic work activities. See 20 C.F.R. §§ 404.1509, 404.1521, 416.909, 416.921. The regulations define the phrase "basic work activities":
20 C.F.R. §§ 404.1521(b), 416.921(b).
The ALJ cited four evidentiary bases in support of her finding that, prior to March 8, 2013, Plaintiff had no severe impairment satisfying the durational requirement.
First, despite having health insurance, Plaintiff did not receive medical treatment for any impairment from April 2010, when he was diagnosed with lumbar degenerative disc disease, until March 8, 2013, when he was hospitalized for congestive heart failure. AR, pp. 25, 27; compare Moore v. Comm'r, 573 F. App'x 540, 543 (6th Cir. 2014) (citing Blacha v. Sec'y of Health & Human Servs., 927 F.2d 228, 231 (6th Cir. 1990)) ("[T]he claimant's failure to seek treatment undercut[s] his complaints of disabling symptoms"); Curler v. Comm'r, 561 F. App'x 464, 475 (6th Cir. 2014) (quoting Helm v. Comm'r, 405 F. App'x 997, 1001 (6th Cir.2011)) ("We have generally found such modest treatment to be `inconsistent with a finding of total disability'").
Second, Plaintiff continued employment through September 4, 2012, with no change in hours, job duties, or rate of pay despite allegedly suffering from the same impairments he claims had reached a disabling level of severity by the time he stopped working). AR, pp. 25, 27; compare 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i) ("If you are doing substantial gainful activity, we will find that you are not disabled").
Third, Plaintiff applied for and received unemployment benefits from September 2012 until February 2014, when he applied for disability benefits. AR, p. 25; compare Workman v. Comm'r, 105 F. App'x 794, 801-02 (6th Cir. 2004) ("Applications for unemployment and disability benefits are inherently inconsistent. . . . There is no reasonable explanation for how a person can claim disability benefits under the guise of being unable to work, and yet file an application for unemployment benefits claiming that [he] is ready and willing to work") (internal citations omitted).
Fourth, the administrative record contains no medical source opinion indicating any limitation prior to March 8, 2013. AR, p. 25; compare 20 C.F.R. §§ 404.1512(a), 416.912(a) ("In general, you have to prove to us that you are blind or disabled") and 404.1545(a)(3), 416.945(a)(3) ("In general, you are responsible for providing the evidence we will use to make a finding about your residual functional capacity").
While admittedly, none of the foregoing reasons cited by the ALJ definitely proves that Plaintiff did
Social Security regulations place the burden on Plaintiff to prove the existence of a disability. Foster v. Comm'r, 279 F.3d 348, 353 (6th Cir. 2001). However, "[o]nce a finding of disability is made, the ALJ must determine the date of onset." McClanahan v. Comm'r, 474 F.3d 830, 833 (6th Cir. 2006). This does not mean, however, that the burden shifts to the Commissioner to prove non-disability prior to the Commissioner's finding of disability. Id. at 836. Social Security Ruling (SSR) 83-20 governs the determination of the onset of disability date. SSR 83-20, 1983 WL 31249 (1983).
Plaintiff argues that SSR 83-20 required the ALJ to call a medical advisor to infer the onset of disability date rather than select the date he was hospitalized with congestive heart failure (March 8, 2013). In cases of non-traumatic impairment, SSR 83-20 provides that, in determining the onset of disability date, the ALJ should consider "the applicant's allegations, work history and the medical and other evidence concerning impairment severity." Id. at *2. "These factors are often evaluated together to arrive at the onset date. However, the individual's allegation or the date of work stoppage is significant in determining onset only if it is consistent with the severity of the condition(s) shown by the medical evidence." Id. at *1. In this case, Plaintiff's allegation that he became disabled on September 4, 2012, the date of work stoppage, is not particularly significant because it is inconsistent with the medical evidence. As discussed above, the ALJ found that, from the alleged onset of disability date until March 8, 2013, Plaintiff received no medical treatment for any impairment, and no medical source opined any limitation. AR, pp. 25, 27.
Nevertheless, SSR 83-20 provides that an ALJ should consult a medical expert when the onset of disability date must be inferred:
Courts have, however, interpreted this as meaning that an ALJ should call on the services of a medical advisor when "there is no development of the medical record on which the ALJ can rely to ascertain onset." McClanahan v. Comm'r, 474 F.3d 830, 837 (6th Cir. 2006); see also Yosowitz v. Comm'r, No. 1:15CV2382, 2016 WL 5173319, at *17 (SSR 83-20 indicates that an ALJ should consult a medical expert "when the record is ambiguous regarding onset date"); Edmondson v. Comm'r, No. 3:15-cv-01060, 2016 WL 4480215, at *9 (M.D. Tenn. Aug. 24, 2016) (Because the ALJ's findings for the period prior to the onset date were supported by substantial evidence, it was unnecessary to infer the onset date and call a medical advisor).
Therefore, the ALJ was not required to infer the onset of disability date and call a medical advisor because substantial medical evidence supported the ALJ's finding that Plaintiff had no severe impairment satisfying the durational requirement prior to March 8, 2013.
Plaintiff applied for and received unemployment benefits from September 2012, the month he stopped working, until February 2014, when he applied for disability benefits. The ALJ found that Plaintiff became disabled in March 2013. Therefore, although the ALJ could have found Plaintiff's receipt of unemployment benefits as undermining his disability claim, she exercised her discretion
While the ALJ considered Plaintiff's receipt of unemployment benefits as a factor counting against an earlier onset of disability date, in the end, the ALJ gave the factor little probative weight:
To the extent the ALJ did so, at all, the ALJ did not err in considering Plaintiff's receipt of unemployment benefits as a factor counting (somewhat) against an earlier onset of disability date. See Workman, supra.
Finally, Plaintiff argues that the ALJ erred in not explicitly discussing his "stellar" work history as part of her credibility assessment. Docket 16, p. 13. The argument apparently harkens back to Plaintiff's prior argument concerning the ALJ's consideration of his receipt of unemployment benefits. Although Plaintiff claims he was disabled beginning on September 4, 2012, when he stopped working, rather than filing for disability, he applied for unemployment benefits and certified that he was attempting to find work. Plaintiff suggests that this constituted "evidence from attempts to work," which "[a]gency policy set forth in 20 C.F.R. § 404.1529(c)(3) and SSRs 96-8p and 96-7p requires consideration of. . . as part of the credibility assessment." Docket 16, p. 14.
Plaintiff's argument is without merit for three reasons.
First, as indicated above, seeking unemployment (although not fatal to a disability claim) is never helpful to a claimant's credibility — regardless of how "stellar" work history may have been.
Second, 20 C.F.R. § 404.1529(c)(3) and SSR 96-7p do not mention "evidence from attempts to work" or otherwise require an ALJ to discuss a claimant's work history or ethic. SSR 96-8p, 1996 WL 374184, at *5 states that "[t]he RFC [residual functional capacity] must be based on all of the relevant evidence in the case record, such as: [factor 9 of 11: evidence from attempts to work]." SSR 96-8p is inapplicable because the ALJ denied Plaintiff's claim (prior to March 8, 2013) at the second step of the sequential evaluation process (prior to the determination of RFC at steps 4 and 5). Further, SSR 96-8p indicates that the ALJ should consider evidence from attempts to work and 10 other factors, not that the ALJ's written decision must explicitly articulate how each factor figured into the RFC determination. Stated somewhat differently, Plaintiff has not proven that the ALJ did
Third, the credibility assessment is firmly within the ALJ's discretion and not to be decided anew by a reviewing court. It is due "great weight and deference particularly since the ALJ has the opportunity, which we do not, of observing a witness's demeanor while testifying." Jones v. Comm'r, 336 F.3d 469, 476 (6th Cir. 2003). A reviewing court will not disturb an ALJ's credibility finding "absent compelling reason." Smith v. Comm'r, 307 F.3d 377, 379 (6th Cir. 2001). Given that level of deference and the other unchallenged aspects of the ALJ's credibility assessment, the ALJ's silence on Plaintiff's work history does not warrant a judicial disturbance of the ALJ's decision.
In light of the foregoing, the Magistrate Judge RECOMMENDS that the Court DENY Plaintiff's Motion for Judgment on the Record (Docket 15); AFFIRM the Commissioner's final decision; and DISMISS Plaintiff's Complaint.
Any party has fourteen (14) days from receipt of this Report and Recommendation in which to file any written objections to it with the District Court. Any party opposing said objections shall have fourteen (14) days from receipt of any objections filed in which to file any responses to said objections. Failure to file specific objections within fourteen (14) days of receipt of this Report and Recommendation can constitute a waiver of further appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140 (1985); Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004).
