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Simpson v. Commissioner of Social Security

United States District Court, E.D. Michigan, Southern Division

February 25, 2015

KAREN M. SIMPSON, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION

MONA K. MAJZOUB, Magistrate Judge.

Plaintiff Karen Simpson seeks judicial review of Defendant the Commissioner of Society Security's determination that she is not entitled to Social Security benefits for her physical and mental impairments under 42 U.S.C. § 405(g). (Docket no. 1.) Before the Court are Plaintiff's Motion for Summary Judgment (docket no. 14) and Defendant's Motion for Summary Judgment (docket no. 17). Plaintiff filed a Response to Defendant's Motion. (Docket no. 18.) The motions have been referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). (Docket no. 4.) The Court has reviewed the pleadings, dispenses with a hearing pursuant to E.D. Mich. L.R. 7.1(f)(2), and issues this Report and Recommendation.

I. RECOMMENDATION:

The Court recommends that Plaintiff's Motion for Summary Judgment (docket no. 14) be DENIED and that Defendant's Motion for Summary Judgment (docket no. 17) be GRANTED.

II. PROCEDURAL HISTORY:

Plaintiff filed an application for Disability Insurance Benefits with a protective filing date of June 17, 2010, alleging that she had been disabled since January 5, 2010, due to cervicalgia and two strokes. ( See docket no. 14; TR 16, 169.) The Social Security Administration denied benefits. ( See TR 16.) Plaintiff requested a de novo hearing, which was granted, but on June 17, 2011, Plaintiff's attorney withdrew Plaintiff's request, which resulted in a dismissal of Plaintiff's claim. ( See TR 120.) Plaintiff appealed the dismissal, alleging that she had been misrepresented. (TR 121.) The Appeals Council remanded the matter for a hearing, which was held on February 8, 2012, before Administrative Law Judge (ALJ) Patricia S. McKay, who subsequently found that Plaintiff was not entitled to benefits because she was capable of performing her past relevant work as a security guard and as a ratio verifier. (TR 16-25.) The Appeals Council declined to review the ALJ's decision (TR 1), and Plaintiff commenced this action for judicial review. The parties then filed their instant Motions.

III. PLAINTIFF'S TESTIMONY, MEDICAL EVIDENCE, AND VOCATIONAL EXPERT TESTIMONY

A. Plaintiff's Testimony and Medical Record

Plaintiff suffered a stroke on January 5, 2010. Plaintiff alleges that since that time, she has suffered from daily pain, particularly in her shoulders and neck, weakness on her left side, numbness in her hands and feet, cramping in her hands, difficulty walking and standing, memory problems, and episodes of blurred vision. ( See docket no. 14 at 8.) Plaintiff ( Id. at 8-13) and the ALJ (TR 20-23) each set out a factual background related to Plaintiff's medical record and her hearing testimony. Defendant adopts the ALJ's recitation of facts. (Docket no. 17 at 5.) There are no inconsistencies between Plaintiff's account of her medical record and her testimony and the ALJ's account of the same with the exception of those discrepancies noted herein. Thus, these factual recitations are incorporated by reference. Nevertheless, the undersigned has conducted an independent review of Plaintiff's medical record and the hearing transcript and will include comments and citations as necessary throughout this Report and Recommendation.

B. The Vocational Expert

The ALJ asked the VE consider a hypothetical individual with the following RFC:

... [A]ssume that we have a hypothetical claimant with [Plaintiff's] age, education and past work experience who has the residual functional capacity to perform the full range of light exertional work who has the following additional limitations. This person can only occasionally climb stairs. She can only occasionally crouch or crawl or kneel or stoop or bend. She needs to avoid workplace hazards which would be dangerous moving machinery or unprotected heights so I don't want her climbing any ladders either.

(TR 56.) The ALJ then asked the VE if such an individual could perform Plaintiff's past relevant work. The VE testified that she could perform her past work as a security guard, a ratio verifier, or a home health attendant. (TR 56.)

The ALJ then asked the VE to assume that the individual also needed to avoid continuous exposure to pulmonary irritants. (TR 57.) The VE stated that such a limitation would have no effect on Plaintiff's past relevant work. (TR 57.) The ALJ then asked the VE to assume that the same individual needed to "limit her use of her left upper extremity, that's her non-dominant arm, nondominant hand using it on an occasional basis as opposed to more often such as frequent." (TR 57.) The VE testified that this would "not affect the past work at all." (TR 57.) The VE also testified that these positions would not be effected by a limitation to "occasional use of her left lower extremity for foot controls or pedals, but he noted that the job base would be eroded somewhat if the individual need to "avoid jobs that require fine visual acuity." (TR 58.) The VE added, however, that such an individual could perform work as an inspector, a machine operator, or an information clerk. (TR 59.)

The ALJ then asked the VE whether the security guard, ratio verifier, or home health attendant positions would "require anything more than occasional contact with co-workers or the general public." (TR 60.) The VE testified that of the jobs listed, including the three additional jobs noted by the VE, only the information clerk would require more than occasional interaction. (TR 60.) When asked, the VE further testified that the job base would be eroded, but not eliminated, if the individual also required a sit-stand option. (TR 60-61.) The VE added that there would also be sedentary jobs available with these limitations and some additional limitations raised by the ALJ.[1] (TR 61-62.)

IV. ADMINISTRATIVE LAW JUDGE'S DETERMINATION

The ALJ found that Plaintiff met the insured status requirements of the Act through the date of her decision; that she had not engaged in substantial gainful activity since January 5, 2010, the date of her alleged onset; and that she had severe cervicalgia and cervical disc disease. (TR 18.) And despite Plaintiff's allegations, the residual effects of her stroke (including her physical and mental impairments) "generally occurred in the short term with no residual problems substantial enough to constitute severe' impairments lasting or expecting to last twelve or more months" and her hypertension, asthma, and GERD did "not significantly limit [her] ability to perform basic work activities." (TR 18-20.) The ALJ further found that her impairments did not meet or equal those listed in the Listing of Impairments and that while Plaintiff's allegations regarding the extent of her symptoms were not wholly credible, Plaintiff had the following RFC:

[Plaintiff can] perform light exertional work... but is able to occasionally climb stairs, crouch, crawl, kneel, stoop/bend and must avoid workplace hazards such as moving machinery, unprotected heights, and climbing ladders.

(TR 20-23.) Notably, the ALJ did not include any mental limitations in Plaintiff's RFC. The ALJ then determined, in reliance on the VE's testimony, that Plaintiff was capable of performing her past relevant work as a security guard or a ratio verifier. (TR 23-24.) The ALJ alternative found, however, that if she were to give Plaintiff "an unduly generous benefit of the doubt as to her need to avoid jobs requiring fine visual acuity due to the alleged effect of... floaters, " she could also perform work as an inspector, a machine operator, or an information clerk. (TR 24.) ...


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