Raymond v. Commissioner of Social Security, No. 1:2018cv00186 - Document 15 (W.D. Mich. 2019)
Court Description: OPINION; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh)
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Raymond v. Commissioner of Social Security Doc. 15 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION STACEY RAYMOND, v. Plaintiff, Hon. Ellen S. Carmody Case No. 1:18-cv-186 COMMISSIONER OF SOCIAL SECURITY, Defendant. _____________________________________/ OPINION This is an action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. ' 405(g), to review a final decision of the Commissioner of Social Security denying Plaintiff=s claim for Supplemental Security Income (SSI) under Title XVI of the Social Security Act. The parties have agreed to proceed in this Court for all further proceedings, including an order of final judgment. Section 405(g) limits the Court to a review of the administrative record and provides that if the Commissioner=s decision is supported by substantial evidence it shall be conclusive. The Commissioner has found that Plaintiff is not disabled within the meaning of the Act. For the reasons stated below, the Court concludes that the Commissioner=s decision is not supported by substantial evidence. Accordingly, the Commissioner=s decision is vacated and the matter remanded for further factual findings pursuant to sentence four of 42 U.S.C. ' 405(g). STANDARD OF REVIEW The Court=s jurisdiction is confined to a review of the Commissioner=s decision and of the record made in the administrative hearing process. See Willbanks v. Sec=y of Health and Human Services, 847 F.2d 301, 303 (6th Cir. 1988). The scope of judicial review in a social Dockets.Justia.com security case is limited to determining whether the Commissioner applied the proper legal standards in making her decision and whether there exists in the record substantial evidence supporting that decision. See Brainard v. Sec=y of Health and Human Services, 889 F.2d 679, 681 (6th Cir. 1989). The Court may not conduct a de novo review of the case, resolve evidentiary conflicts, or decide questions of credibility. See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). It is the Commissioner who is charged with finding the facts relevant to an application for disability benefits, and her findings are conclusive provided they are supported by substantial evidence. See 42 U.S.C. ' 405(g). Substantial evidence is more than a scintilla, but less than a preponderance. See Cohen v. Sec=y of Dep=t of Health and Human Services, 964 F.2d 524, 528 (6th Cir. 1992) (citations omitted). It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir. 1993). In determining the substantiality of the evidence, the Court must consider the evidence on the record as a whole and take into account whatever in the record fairly detracts from its weight. See Richardson v. Sec=y of Health and Human Services, 735 F.2d 962, 963 (6th Cir. 1984). As has been widely recognized, the substantial evidence standard presupposes the existence of a zone within which the decision maker can properly rule either way, without judicial interference. See Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (citation omitted). This standard affords to the administrative decision maker considerable latitude, and indicates that a decision supported by substantial evidence will not be reversed simply because the evidence would have supported a contrary decision. See Bogle, 998 F.2d at 347; Mullen, 800 F.2d at 545. -2- PROCEDURAL POSTURE Plaintiff was 44 years of age on her alleged disability onset date. (PageID.210). She successfully completed high school and has no past relevant work. (PageID.51-52). Plaintiff applied for benefits on October 30, 2015, alleging that she had been disabled since July 28, 2014, due to fibromyalgia, myofascial pain syndrome, peripheral neuropathy, chronic depression, chronic anxiety, chronic physical and mental exhaustion, chronic pain, attention deficit disorder, neuropathy, migraines, osteoarthritis, chronic obstructive pulmonary disorder (COPD), parsec, myelopathy, cervical spondyloarthritis, bowel and bladder incontinence, hypersensitivity to wide variety of medication, and sensitivity to weather. (PageID.210-16, 230). Plaintiff=s application was denied, after which time she requested a hearing before an Administrative Law Judge (ALJ). (PageID.116-208). On September 11, 2017, ALJ Colleen Mamelka conducted a hearing with testimony being offered by Plaintiff, a friend of Plaintiff, and a vocational expert. (PageID.59-98). In a written decision dated October 20, 2017, the ALJ determined that Plaintiff was not disabled. (PageID.41-53). The Appeals Council declined to review the ALJ=s determination, rendering it the Commissioner=s final decision in the matter. (PageID.27-31). Plaintiff subsequently initiated this appeal pursuant to 42 U.S.C. ' 405(g), seeking judicial review of the ALJ=s decision. ANALYSIS OF THE ALJ=S DECISION The social security regulations articulate a five-step sequential process for evaluating disability. See 20 C.F.R. '' 404.1520(a-f), 416.920(a-f).1 If the Commissioner can 1 1. An individual who is working and engaging in substantial gainful activity will not be found to be Adisabled@ regardless of medical findings (20 C.F.R. '' 404.1520(b), 416.920(b)); -3- make a dispositive finding at any point in the review, no further finding is required. See 20 C.F.R. '' 404.1520(a), 416.920(a). The regulations also provide that if a claimant suffers from a nonexertional impairment as well as an exertional impairment, both are considered in determining her residual functional capacity. See 20 C.F.R. '' 404.1545, 416.945. The burden of establishing the right to benefits rests squarely on Plaintiff=s shoulders, and she can satisfy her burden by demonstrating that her impairments are so severe that she is unable to perform her previous work, and cannot, considering her age, education, and work experience, perform any other substantial gainful employment existing in significant numbers in the national economy. See 42 U.S.C. ' 423(d)(2)(A); Cohen, 964 F.2d at 528. While the burden of proof shifts to the Commissioner at step five, Plaintiff bears the burden of proof through step four of the procedure, the point at which her residual functioning capacity (RFC) is determined. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Walters v. Comm=r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997) (ALJ determines RFC at step four, at which point claimant bears the burden of proof). 2. An individual who does not have a Asevere impairment@ will not be found Adisabled@ (20 C.F.R. '' 404.1520(c), 416.920(c)); 3. If an individual is not working and is suffering from a severe impairment which meets the duration requirement and which Ameets or equals@ a listed impairment in Appendix 1 of Subpart P of Regulations No. 4, a finding of Adisabled@ will be made without consideration of vocational factors. (20 C.F.R. '' 404.1520(d), 416.920(d)); 4. If an individual is capable of performing her past relevant work, a finding of Anot disabled@ must be made (20 C.F.R. '' 404.1520(e), 416.920(e)); 5. If an individual=s impairment is so severe as to preclude the performance of past work, other factors including age, education, past work experience, and residual functional capacity must be considered to determine if other work can be performed (20 C.F.R. '' 404.1520(f), 416.920(f)). -4- The ALJ determined that Plaintiff suffered from: (1) myofascial pain disorder; (2) peripheral neuropathy; (3) fibromyalgia; (4) migraines; (5) chronic obstructive pulmonary disease (COPD); (6) cervical spondyloarthritis status-post laminectomy; (7) tear of left acetabular labrum status-post arthroscopy with labrum repair; (8) degenerative disc disease (DDD) of the lumbar spine; (9) arthralgia; (10) anxiety; (11) post-traumatic stress disorder (PTSD); (12) osteoarthritis (OA); (13) bursitis; (14) bipolar disorder; (15) depression; (16) somatoform disorder; and (17) borderline personality disorder, severe impairments that whether considered alone or in combination with other impairments, failed to satisfy the requirements of any impairment identified in the Listing of Impairments detailed in 20 C.F.R., Part 404, Subpart P, Appendix 1. (PageID.44-47). With respect to Plaintiff=s residual functional capacity, the ALJ determined that Plaintiff retained the capacity to perform light work subject to the following limitations: (1) she requires a sit-stand option at will but cannot be off task more than ten percent of the workday; (2) she can occasionally balance, stoop, kneel, crouch, crawl, and climb ramps/stairs; (3) she is unable to climb ladders, ropes, or scaffolds; (4) she should avoid unprotected heights, moving machinery, exposure to extreme cold, vibration, or very loud noises; (5) she can only occasionally rotate or flex her neck; (6) she is limited to simple, routine, and repetitive tasks with an SVP of 1 or 2;2 and (7) she cannot have interaction with the general public. (PageID.47). Error! Main Document Only.SVP ratings measure the “amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation.” See Dictionary of Occupational Titles, Appendix C, available at http://www.occupationalinfo.org/appendxc_1.html (last visited on Mar. 26, 2019). A job with an SVP rating of 1 corresponds to a job that a typical worker can perform after a “short demonstration only.” A job with an SVP rating of two corresponds to a job that a typical worker can perform after “anything beyond short demonstration up to and including 1 month.” Id. 2 -5- The ALJ found that Plaintiff had no past relevant work at which point the burden of proof shifted to the Commissioner to establish by substantial evidence that a significant number of jobs exist in the national economy which Plaintiff could perform, her limitations notwithstanding. See Richardson, 735 F.2d at 964. While the ALJ is not required to question a vocational expert on this issue, Aa finding supported by substantial evidence that a claimant has the vocational qualifications to perform specific jobs@ is needed to meet the burden. O=Banner v. Sec=y of Health and Human Services, 587 F.2d 321, 323 (6th Cir. 1978) (emphasis added). This standard requires more than mere intuition or conjecture by the ALJ that the claimant can perform specific jobs in the national economy. See Richardson, 735 F.2d at 964. Accordingly, ALJs routinely question vocational experts in an attempt to determine whether there exist a significant number of jobs which a particular claimant can perform, his limitations notwithstanding. Such was the case here, as the ALJ questioned a vocational expert. The vocational expert testified that there existed approximately 595,000 jobs in the national economy which an individual with Plaintiff=s RFC could perform, such limitations notwithstanding. (PageID.93-94). This represents a significant number of jobs. See, e.g., Taskila v. Commissioner of Social Security, 819 F.3d 902, 905 (6th Cir. 2016) (“[s]ix thousand jobs in the United States fits comfortably within what this court and others have deemed ‘significant’”). Accordingly, the ALJ concluded that Plaintiff was not entitled to disability benefits. I. The ALJ’s Credibility Assessment is not Supported by Substantial Evidence As detailed below, Plaintiff reported that she is significantly more limited than the ALJ concluded. The ALJ, however, discounted Plaintiff’s subjective allegations. -6- Plaintiff argues that she is entitled to relief because the ALJ’s rationale for discounting her subjective allegations is not supported by substantial evidence.3 The Court agrees. As the Sixth Circuit has long recognized, Apain alone, if the result of a medical impairment, may be severe enough to constitute disability.@ King v. Heckler, 742 F.2d 968, 974 (6th Cir. 1984) (emphasis added); see also, Grecol v. Halter, 46 Fed. Appx. 773, 775 (6th Cir., Aug. 29, 2002) (same). As the relevant Social Security regulations make clear, however, a claimant=s Astatements about [his] pain or other symptoms will not alone establish that [he is] disabled.@ 20 C.F.R. ' 404.1529(a); see also, Walters v. Commissioner of Social Security, 127 F.3d 525, 531 (6th Cir. 1997) (quoting 20 C.F.R. ' 404.1529(a)) Hash v. Commissioner of Social Security, 309 Fed. Appx. 981, 989 (6th Cir., Feb. 10, 2009). Instead, a claimant=s assertions of disabling pain and limitation are evaluated pursuant to the following standard. First, it must be determined whether the claimant has a medically determinable impairment that could reasonably be expected to produce the claimant’s alleged symptoms. See Titles II and XVI: Evaluation of Symptoms in Disability Claims, Social Security Ruling 16-3p, 2016 WL 1119029 at *3-4 (S.S.A., Mar. 16, 2016). Next, the intensity and persistence of the claimant’s symptoms are evaluated to determine the extent to which such limit his ability to perform work-related activities. Id. at *4-9.4 This standard is often referred to as the Duncan Plaintiff’s argument that the ALJ’s credibility assessment is not supported by substantial evidence is raised in the context of her argument that the ALJ’s RFC assessment is not supported by substantial evidence. While not particularly well developed, Plaintiff’s citation to Titles II and XVI: Evaluation of Symptoms in Disability Claims, Social Security Ruling 16-3p, 2016 WL 1119029 at *3-4 (S.S.A., Mar. 16, 2016), is sufficient to have raised this particular issue and put Defendant on notice as to such. 3 4 Social Security Ruling 16-3p rescinded Social Security Ruling 96-7p. Id. at *1. However, the adoption of this new Social Security Ruling did not alter the analysis for evaluating a claimant’s subjective statements. Instead, as the Social Security Administration stated, it was simply “eliminating the use of the term ‘credibility’ [so as to] clarify that that subjective symptom evaluation is not an examination of an individual’s character.” Ibid. As -7- standard. See Workman v. Commissioner of Social Security, 105 Fed. Appx. 794, 801 (6th Cir., July 29, 2004). As the Sixth Circuit has repeatedly held, Asubjective complaints may support a finding of disability only where objective medical evidence confirms the severity of the alleged symptoms.@ Ibid. However, where the objective medical evidence fails to confirm the severity of a claimant=s subjective allegations, the ALJ Ahas the power and discretion to weigh all of the evidence and to resolve the significant conflicts in the administrative record.@ Workman, 105 Fed. Appx. at 801 (citing Walters, 127 F.3d at 531). In this respect, it is recognized that the ALJ=s credibility assessment Amust be accorded great weight and deference.@ Workman, 105 Fed. Appx. at 801 (citing Walters, 127 F.3d at 531); see also, Heston v. Commissioner of Social Security, 245 F.3d 528, 536 (6th Cir. 2001) (A[i]t is for the [Commissioner] and his examiner, as the fact-finders, to pass upon the credibility of the witnesses and weigh and evaluate their testimony@). It is not for this Court to reevaluate such evidence anew, and so long as the ALJ=s determination is supported by substantial evidence, it must stand. The ALJ found Plaintiff=s subjective allegations to not be fully credible, a finding that should not be lightly disregarded. See Varley v. Sec=y of Health and Human Services, 820 F.2d 777, 780 (6th Cir. 1987). As the Sixth Circuit has stated, A[w]e have held that an administrative law judge=s credibility findings are virtually unchallengeable.@ Ritchie v. Commissioner of Social Security, 540 Fed. Appx. 508, 511 (6th Cir., Oct. 4, 2013) (citation omitted). courts recognize, aside from this linguistic clarification, “[t]he analysis under SSR 16-3p otherwise is identical to that performed under SSR 96-7p.” Young v. Berryhill, 2018 WL 1914732 at *6 (W.D. Ky., Apr. 23, 2018). -8- Nevertheless, the ALJ is not permitted to assess a claimant’s subjective allegations based upon Aan intangible or intuitive notion about an individual=s credibility.@ Rogers v. Commissioner of Social Security, 486 F.3d 234, 247 (6th Cir. 2007). Instead, the ALJ=s rationale for discrediting a claimant=s testimony Amust be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual=s statements and the reasons for that weight.@ Id. at 248. Accordingly, Ablanket assertions that the claimant is not believable will not pass muster, nor will explanations as to credibility which are not consistent with the entire record and the weight of the relevant evidence.@ Id. With respect to Plaintiff’s subjective allegations, the ALJ described Plaintiff’s statements as follows: The claimant testified that she could not perform work related activities because of her impairments. She could read and do simple math. The claimant testified of several impairments, including osteoarthritis, fibromyalgia, neuropathy pain, spinal problems, and chronic obstructive pulmonary disease (COPD). She said that she experiences migraine headaches on[c]e to twice a week, lasting two hours or the whole day with trouble focusing. She stated that she is receiving pain treatment her impairments, including pain medications, physical therapy, injections, and TENS unit. She has trouble with driving due to pain. She is treating with inhalers for her COPD. She continues to smoke. She would nap for two hours. She stated that she could walk for about eight minutes, sit for about ten pounds, stand for about fifteen minutes, and lift less than a gallon of milk. She said that she could not pick up change, tie shoes, button, or zip things due to numbness with her fin[gers]. She could not bend or squat. Additionally, the claimant testified of mental impairments, including bipolar and posttraumatic stress disorder (PT[SD]) with social problems, mood disorder, crying spells, and anxiety problems. She has trouble with concentrating. She is treating with psychotropic medications. The claimant stated that she experiences side effects of blurry vision, tiredness, and weakness from her medications. Additionally, Howard Mason, a friend of the claimant, testified on behalf of the claimant. He stated that he is helping the -9- claimant [with] hygiene, preparing meals, and performing other household chores. (PageID.48). Despite the fact that Plaintiff’s subjective allegations are not inconsistent with the medical evidence, the ALJ dismissed such by stating the following: After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to produce the above alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision. Accordingly, these statements have been found to affect the claimant's ability to work only to the extent they can reasonably be accepted as consistent with the objective medical and other evidence. (PageID.48). The ALJ’s argument is unsupported and her logic is circular. That Plaintiff’s subjective allegations are “not entirely consistent with” the medical record is hardly obvious and the ALJ does not even attempt to articulate how such is the case. While the ALJ makes reference to “reasons explained [elsewhere] in this decision,” a review of the ALJ’s discussion of the medical evidence sheds no light on the ALJ’s rationale or justification for discounting Plaintiff’s subjective allegations. Instead, the ALJ advances a circular argument that Plaintiff’s statements are credible only to the extent such as consistent with the ALJ’s RFC finding. As noted above, however, the ALJ must articulate “specific” reasons for discounting a claimant’s testimony and cannot simply rely on the unsupported conclusion that the claimant’s statements “are not consistent with” the record. In sum, the Court finds that the ALJ’s rationale for discounting Plaintiff’s testimony is not supported by substantial evidence. -10- II. Remand is Appropriate While the Court finds that the ALJ=s decision fails to comply with the relevant legal standards, Plaintiff can be awarded benefits only if Aall essential factual issues have been resolved@ and Athe record adequately establishes [her] entitlement to benefits.@ Faucher v. Secretary of Health and Human Serv=s, 17 F.3d 171, 176 (6th Cir. 1994); see also, Brooks v. Commissioner of Social Security, 531 Fed. Appx. 636, 644 (6th Cir., Aug. 6, 2013). This latter requirement is satisfied Awhere the proof of disability is overwhelming or where proof of disability is strong and evidence to the contrary is lacking.@ Faucher, 17 F.3d at 176; see also, Brooks, 531 Fed. Appx. at 644. Evaluation of Plaintiff=s claim requires the resolution of factual disputes which this Court is neither competent nor authorized to undertake in the first instance. Moreover, there does not exist compelling evidence that Plaintiff is disabled. Accordingly, this matter must be remanded for further administrative action. CONCLUSION For the reasons articulated herein, the Court concludes that the ALJ=s decision is not supported by substantial evidence. Accordingly, the Commissioner=s decision is vacated and the matter remanded for further factual findings pursuant to sentence four of 42 U.S.C. ' 405(g). A judgment consistent with this opinion will enter. Dated: March 28, 2019 /s/ Ellen S. Carmody ELLEN S. CARMODY United States Magistrate Judge -11-
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