BARBARA D. HOLMES, Magistrate Judge.
To: The Honorable Waverly D. Crenshaw, Chief District Judge
Plaintiff filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of the final decision of the Social Security Administration ("Commissioner") denying his claim for Disability Insurance Benefits ("DIB"), as provided under Title II 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. 12), to which Defendant has responded. Docket Entry No. 13.
Upon review of the administrative record as a whole and consideration of the parties' filings, the undersigned Magistrate Judge respectfully recommends that Plaintiff's motion for judgment on the administrative record (Docket Entry No. 12) be
Plaintiff filed an application for DIB on December 19, 2012. See Transcript of the Administrative Record (Docket Entry No. 10) at 82.
Plaintiff's applications were denied initially and upon reconsideration. AR 82, 95. Pursuant to his request for a hearing before an administrative law judge ("ALJ"), Plaintiff appeared with counsel and testified at a hearing before ALJ William F. Taylor on September 26, 2014. AR 30. On December 12, 2014, the ALJ denied the claim. AR 9-11. On August 5, 2013, the Appeals Council denied Plaintiff's request for a review of the ALJ's decision (AR 1-4), 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).
The ALJ issued an unfavorable decision on December 12, 2014. AR 9-11. Based upon the record, the ALJ made the following enumerated findings:
AR 14-25.
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). See Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L. Ed. 2d 842 (1971) (adopting and defining substantial evidence standard in context of Social Security cases); Kyle v. Comm'r of Soc. Sec., 609 F.3d 847, 854 (6th Cir. 2010). The Commissioner's decision must be affirmed if it is supported by substantial evidence, "even if there is substantial evidence in the record that would have supported an opposite conclusion." Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)); Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003); Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).
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." Richardson, 402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 S.Ct. 126 (1938)); Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007); LeMaster v. Weinberger, 533 F.2d 337, 339 (6th Cir. 1976) (quoting Sixth Circuit opinions adopting language substantially similar to that in Richardson).
The Court's review of the Commissioner's decision is limited to the record made in the administrative hearing process. Jones v. Secretary, 945 F.2d 1365, 1369 (6th Cir. 1991). A reviewing court may not try the case de novo, resolve conflicts in evidence, or decide questions of credibility. See, e.g., Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citing Myers v. Richardson, 471 F.2d 1265, 1268 (6th Cir. 1972)). The Court must accept the ALJ's explicit findings and determination unless the record as a whole is without substantial evidence to support the ALJ's determination. 42 U.S.C. § 405(g). See, e.g., Houston v. Sec'y of Health & Human Servs., 736 F.2d 365, 366 (6th Cir. 1984).
The claimant has the ultimate burden of establishing an entitlement to benefits by proving his "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. § 432(d)(1)(A). The asserted impairment(s) must be demonstrated by medically acceptable clinical and laboratory diagnostic techniques. See 42 U.S.C. §§ 432(d)(3) and 1382c(a)(3)(D); 20 C.F.R. §§ 404.1512(a), (c), and 404.1513(d). "Substantial gainful activity" not only includes previous work performed by the claimant, but also, considering the claimant's age, education, and work experience, any other relevant work that exists in the national economy in significant numbers regardless of whether such work exists in the immediate area in which the claimant lives, or whether a specific job vacancy exists, or whether the claimant would be hired if he applied. 42 U.S.C. § 423(d)(2)(A).
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. See Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001); Abbot v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, the claimant must show that he is not engaged in "substantial gainful activity" at the time disability benefits are sought. Cruse v. Comm'r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007); 20 C.F.R. §§ 404.1520(b), 416.920(b). Second, the claimant must show that he suffers from a severe impairment that meets the 12-month durational requirement. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). See also Edwards v. Comm'r of Soc. Sec., 113 F. App'x 83, 85 (6th Cir. 2004). Third, if the claimant has satisfied the first two steps, the claimant is presumed disabled without further inquiry, regardless of age, education or work experience, if the impairment at issue either appears on the regulatory list of impairments that are sufficiently severe as to prevent any gainful employment or equals a listed impairment. Combs v. Comm'r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006); 20 C.F.R. §§ 404.1520(d), 416.920(d). A claimant is not required to show the existence of a listed impairment in order to be found disabled, but such showing results in an automatic finding of disability that ends the inquiry. See Combs, supra; Blankenship v. Bowen, 874 F.2d 1116, 1122 (6th Cir. 1989).
If the claimant's impairment does not render him presumptively disabled, the fourth step evaluates the claimant's residual functional capacity in relationship to his past relevant work. Combs, supra. "Residual functional capacity" ("RFC") is defined as "the most [the claimant] can still do despite [his] limitations." 20 C.F.R. §§ 404.1545(a)(1). In determining a claimant's RFC, for purposes of the analysis required at steps four and five, the ALJ is required to consider the combined effect of all the claimant's impairments, mental and physical, exertional and nonexertional, severe and nonsevere. See 42 U.S.C. §§ 423(d)(2)(B), (5)(B); Foster v. Bowen, 853 F.2d 483, 490 (6th Cir. 1988). At the fourth step, the claimant has the burden of proving an inability to perform past relevant work or proving that a particular past job should not be considered relevant. Cruse, 502 F.3d at 539; Jones, 336 F.3d at 474. If the claimant cannot satisfy the burden at the fourth step, disability benefits must be denied because the claimant is not disabled. Combs, supra.
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. Longworth v. Comm'r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005) (quoting Walters v. Comm'r of Soc. Sec., 402 F.3d 525, 529 (6th Cir. 1997)). See also Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). To rebut a prima facie case, the Commissioner must come forward with proof of the existence of other jobs a claimant can perform. Longworth, 402 F.3d at 595. See also Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524, 528 (6th Cir. 1981), cert. denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L. Ed. 2d 1315 (1983) (upholding the validity of the medical-vocational guidelines grid as a means for the Commissioner of carrying his burden under appropriate circumstances). Even if the claimant's impairments prevent the claimant from doing past relevant work, if other work exists in significant numbers in the national economy that the claimant can perform, the claimant is not disabled. Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009). See also Tyra v. Sec'y of Health & Human Servs., 896 F.2d 1024, 1028-29 (6th Cir. 1990); Farris v. Sec'y of Health & Human Servs., 773 F.2d 85, 88-89 (6th Cir. 1985); Mowery v. Heckler, 771 F.2d 966, 969-70 (6th Cir. 1985).
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). See also Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (holding that resolution of a claim at step two of the evaluative process is appropriate in some circumstances).
In the instant case, the ALJ resolved Plaintiff's claim at step four of the five-step process. The ALJ found that Plaintiff met the first two steps, but determined at step three that Plaintiff was not presumptively disabled because he did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. At step four, the ALJ found that Plaintiff was able to perform past relevant work as a manager and thus concluded that Plaintiff has not been under a disability from the alleged onset date through the date last insured. AR 14-25.
Plaintiff argues that the ALJ erred by (1) failing to "properly evaluate the evidence and apply the Code of Federal Regulations." DE 12-1 at 6. Plaintiff therefore requests that this case be reversed and benefits awarded, or, alternatively, remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further consideration. Id. at 7.
Sentence four of 42 U.S.C. § 405(g) states the following:
42 U.S.C. § 405(g), 1383(c)(3). "In cases where there is an adequate record, the [Commissioner's] decision denying benefits can be reversed and benefits awarded if the decision is clearly erroneous, proof of disability is overwhelming, or proof of disability is strong and evidence to the contrary is lacking." Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985). Furthermore, a court can reverse the decision and immediately award benefits if all essential factual issues have been resolved and the record adequately establishes a claimant's entitlement to benefits. Faucher v. Secretary, 17 F.3d 171, 176 (6th Cir. 1994). See also Newkirk v. Shalala, 25 F.3d 316, 318 (1994). The Court addresses Plaintiff's assertion of error as follows.
Plaintiff's terse argument alleges that Dr. Harry Wright, who completed a consultative examination of Plaintiff on April 16, 2013, "had no medical record on which to base his opinion" that Plaintiff did not suffer from a physical impairment. DE 12-1 at 5. Plaintiff also finds fault with the opinion of Robert Doran, M.A., who conducted a consultative psychological examination on May 8, 2013, for suggesting that Plaintiff had no functional limitations related to a previous nephrectomy. Id. Plaintiff does not explain how either of these situations constitutes reversible error, but instead makes a passing reference to Social Security Ruling ("SSR") 96-6p,
Although not entirely clear, Plaintiff's reference to SSR 96-6p implies an argument that the weight assigned to these opinions by the ALJ is not supported by substantial evidence. Notably, however, SSR 96-6p pertains to nonexamining sources:
1996 WL 374180, at *1 (July 2, 1996).
Regardless, to the extent that Plaintiff alleges that the ALJ improperly weighed the opinion of Dr. Wright, the Court finds no such error. Plaintiff faults Dr. Wright for failing to "indicate he had any medical records available for review despite there being several hundred pages of VA records available." DE 12-1 at 5. However, failure to review a claimant's complete medical history, by itself, does not represent reversible error, as such a holding would allow a claimant to seek treatment following completion of a consultative examination and later argue that the consultative examiner's findings failed to account for her subsequent treatment. See Grant v. Colvin, No. 3:14-cv-399, 2015 WL 4713662, at *13 (E.D. Tenn. Aug. 7, 2015) ("If the Court were to adopt the Plaintiff's argument, any consultative examiner should be summarily dismissed if their opinion was submitted without full review of a plaintiff's medical record or predated any treatment records."). Indeed, Plaintiff fails to identify any regulation or relevant case law requiring a medical source to have access to a claimant's complete medical history before issuing an opinion. See Robinson v. Comm'r of Soc. Sec. Admin., No. 5:14-cv-291, 2015 WL 1119751, at *11 (N.D. Ohio Mar. 11, 2015) ("There is no categorical requirement that the non-treating source's opinion be based on a `complete' or `more detailed and comprehensive' case record. The opinions need only be supported by evidence in the case record.") (citing Helm v. Comm'r of Soc. Sec. Admin., 405 F. App'x 997, 1002 (6th Cir. 2011)) (internal quotations omitted).
Plaintiff also suggests that Dr. Wright's report was inconsistent because it held that Plaintiff had no physical limitations despite making the following observation: "Weight Lift: > 10 pounds bilaterally." AR 809. The Court acknowledges that such a notation is somewhat confusing, although a straightforward reading of this remark indicates that Plaintiff is capable of lifting more than 10 pounds, which is consistent with Dr. Wright's finding that Plaintiff has no physical restrictions. AR 809. Moreover, the ALJ accorded "less weight" to this opinion (AR 23), thus rendering any errors contained in the evaluation harmless. See Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 547 (6th Cir. 2004) (noting that the reviewing court is "not required to convert judicial review of agency action into a ping-pong game where remand would be an idle and useless formality.") (quoting NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766, 89 S.Ct. 1426, 22 L. Ed. 2d 709 n.6 (1969)) (internal quotations omitted). Cf. also Hoelscher v. Comm'r of Soc. Sec., No. 09-11581, 2010 WL 4179272, at *4 (E.D. Mich. Oct. 20, 2010) ("[T]here is no reason to depart from the usualharmless — error rule when the ALJ merely failed to give a detailed explanation why she gave less weight to a one-time examining opinion.") (quoting Kornecky v. Comm'r of Soc. Sec., 167 F. App'x 496, 507 (6th Cir. 2006)).
Furthermore, the ALJ made clear in the opinion that the portion of the assigned RFC involving physical exertional requirements was adopted from the RFC assigned as part of Plaintiff's prior application, in which Plaintiff was restricted to less than a full range of light work as defined in 20 C.F.R. § 404.1567(b). AR 19, 23, 63.
Plaintiff does not address this finding, but instead argues vaguely that the RFC in the instant case "seems even less restrictive than the opinion of the earlier Favorable Decision despite kidney removal[.]" DE 12-1 at 5. This is certainly true with respect to Plaintiff's mental condition in light of the ALJ's determination that Plaintiff no longer suffers from any severe mental impairment, as discussed supra. And although no one disputes that Plaintiff's kidney operation occurred—to the contrary, the ALJ determined that Plaintiff's "renal cell carcinoma, status post resection" represented a severe impairment (AR 14)—Plaintiff fails to cite any medical evidence indicating that Plaintiff is subject to additional functional limitations as a result of this condition, thus rendering his argument irrelevant. See Hill v. Comm'r of Soc. Sec., 560 F. App'x 547, 551 (6th Cir. 2014) ("[D]isability is determined by the functional limitations imposed by a condition, not the mere diagnosis of it.") (citing Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988)).
Plaintiff's best argument pertains to his cervical spine. Plaintiff notes that a CT scan performed on September 7, 2011, more than one year before the alleged onset date, showed degenerative osteoarthritis throughout the cervical spine. AR 241-42. Approximately five months later, however, Plaintiff's provider noted that although he had "moderate cervical stenosis at C6-7," this finding was "nothing remarkable" and would not necessitate surgical intervention. AR 417. During that same visit, Plaintiff stated that he had not experienced any cervical pain since September of 2011, with his provider making the following notation: "He bought a Tempra Pedic [sic] bed and he states that since he bought the bed everything has been 100% better. . . . [A]t this point he tells me that he has no more symptoms and he feels great." AR 416.
The Court also notes that the ALJ described extensively the evidence of record suggesting that Plaintiff did not experience any functional limitations as a result of a cervical condition, with medical findings including a consistently normal gait and range of motion in the back and neck, full upper extremity strength, as well as mild findings from a consultative examiner. AR 15-16, 19-21. Plaintiff's brief reference to a nurse practitioner's statement that Plaintiff should avoid any overhead lifting during a single office visit that took place 10 months before the alleged onset date (AR 300-01) does not overcome such evidence. See Key, 109 F.3d at 273 ("The decision of an ALJ is not subject to reversal, even if there is substantial evidence in the record that would have supported an opposite conclusion, so long as substantial evidence supports the conclusion reached by the ALJ."). The Court also notes that even if this statement was intended to convey a permanent physical limitation, a nurse practitioner is not an "acceptable medical source," which precludes the statement from constituting a medical opinion that establishes the existence of any functional limitations. See Hetzer v. Comm'r of Soc. Sec., No. 1:16-cv-555, 2017 WL 4324754, at *1 (S.D. Ohio Sept. 29, 2017) (noting that a nurse practitioner "is an `other source,' meaning that her opinion cannot establish the existence of a medically determinable impairment").
Finally, the Court notes that Plaintiff's assertion with respect to Mr. Doran can hardly be considered an argument. Plaintiff simply states: "It should be pointed out Examiner Doran is the consultative
The burden lies with Plaintiff to prove that he is disabled. Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001) (citing Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993)). Here, Plaintiff's brief does little more than cite diagnoses from various office visits and his own testimony DE 12-1 at 2-5. This is fatal to his argument as a mere diagnosis is insufficient to establish disability, see Krakow v. Comm'r of Soc. Sec., No. 13-14388, 2015 WL 1301300, at *10 (E.D. Mich. Mar. 23, 2015) ("[S]imply because plaintiff suffers from certain conditions or carries certain diagnoses does not equate to disability[.]"), and the ALJ clearly found that Plaintiff's testimony was not credible, as discussed at length in the opinion. See AR 20-25. Plaintiff provides no evidence to refute this finding, and instead perfunctorily claims that the ALJ "fail[ed] to properly evaluate . . . SSR 96-7p." DE 12-1 at 6.
For the above stated reasons, it is respectfully recommended that Plaintiff's motion for judgment on the administrative record (DE 12) be DENIED and the Commissioner's decision be AFFIRMED.
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. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
