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Doornbos v. Commissioner of Social Security

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

March 8, 2017

PEGGY L. DOORNBOS, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant,

          OPINION

          ROBERT J. JONKER, CHIEF UNITED STATES DISTRICT JUDGE

         This is a social security action brought under 42 U.S.C. § 405(g) to review a final decision of the Commissioner of Social Security denying Plaintiff's claim for Disability Insurance Benefits (DIB) under Title II of the Social Security Act. 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.

         STANDARD OF REVIEW

         The scope of judicial review in a social 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 & Human Servs., 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 Health & Human Servs., 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 evidence in the record fairly detracts from its weight. See Richardson v. Sec'y of Health & Human Servs., 735 F.2d 962, 963 (6th Cir. 1984). 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.

         PROCEDURAL POSTURE

         Plaintiff's application for benefits was previously considered by Magistrate Judge Hugh Brenneman, Jr. In a decision dated September 29, 2014, Judge Brenneman summarized the procedural history of this case to that point as follows:

Plaintiff was born on October 26, 1967. She alleged a disability onset date of July 21, 2005, when she slipped and fell on her coccyx [tail bone] while at work. Plaintiff stated that she earned an associate's degree in stenography, obtained a real estate license, and “went to school to learn how to do nails.” She had past work as a general laborer, a manager of a fast food restaurant, a manager of a restaurant, a medical transcriptionist, a court stenographer, and a pin polisher for a jewelry manufacturer. Plaintiff identified her disabling condition as coccydynia.
Plaintiff's claim was originally denied in a decision by Administrative Law Judge (ALJ) William G. Reamon dated October 28, 2010. ALJ Reamon's decision was remanded by the Appeals Council for further evaluation of the evidence. On remand, ALJ Donna J. Grit reviewed plaintiff's claim de novo and entered a written decision denying benefits on July 10, 2012. This decision, which was later approved by the Appeals Council, has become the final decision of the Commissioner and is now before the Court for review.

Doornbos v. Comm'r of Soc. Sec., No. 1:13-cv-595 ECF No. 18, PageID.1429-1430 (internal citations and footnotes omitted). Judge Brenneman proceeded to conclude that the Commissioner's decision was not supported by substantial evidence, remanded the case, and directed the Commissioner to: “(1) re-evaluate plaintiff's credibility with respect to the ALJ's finding that the objective diagnostic findings did not substantiate the degree of pain alleged by plaintiff; (2) re-evaluate Dr. Lippert's opinion with respect to the squatting restriction; and (3) re-evaluate Dr. Lemke's opinions expressed in his December 14, 2009 RFC questionnaire.” Doornbos v. Comm'r of Soc. Sec., No. 1:13-cv-595 ECF No. 18, PageID.1447.

         On December 22, 2014, consistent with Judge Brenneman's order, the Appeals Council vacated the prior decision and remanded the case to ALJ Grit for further action. (PageID.1555-1558.) On March 17, 2015, ALJ Grit held another administrative hearing, at which time both Plaintiff and a vocational expert (VE) testified. (PageID.1335-1391.) Thereafter, in a written decision dated May 29, 2015, ALJ Grit determined Plaintiff was not disabled. (PageID.1286-1334.) On April 13, 2016, the Appeals Council declined to the review the ALJ's decision, making it the Commissioner's final decision in the matter. (PageID.1280-1282.) Plaintiff subsequently initiated this action under 42 U.S.C. § 405(g).

         Plaintiff's insured status expired on December 31, 2010. (PageID.1291.) Accordingly, to be eligible for DIB under Title II of the Social Security Act, Plaintiff must establish that she became disabled prior to the expiration of her insured status. See 42 U.S.C. § 423; Moon v. Sullivan, 923 F.2d 1175, 1182 (6th Cir. 1990).

         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).[1] If the Commissioner can make a dispositive finding at any point in the review, no further finding is required. See 20 C.F.R. § 404.1520(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 the claimant's residual functional capacity (RFC). See 20 C.F.R. § 404.1545.

         Plaintiff has the burden of proving the existence and severity of limitations caused by her impairments and that she is precluded from performing past relevant work through step four. Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). At step five, it is the Commissioner's burden “to identify a significant number of jobs in the economy that accommodate the claimant's residual functional capacity (determined at step four) and vocational profile.” Id.

         In the decision for review by this Court, ALJ Grit determined Plaintiff's claim failed at step five. At step one the ALJ found that Plaintiff had not engaged in substantial gainful activity since July 21, 2005, the alleged disability onset date. (PageID.1291.) At step two, the ALJ found that Plaintiff suffered from the severe impairments of: (1) coccydynia and pelvic floor myalgia, dysfunction, and pain; (2) rectocele; (3) sigmoidocele; (4) iron deficiency anemia; (5) attention deficit hyperactivity disorder; (6) affective disorder; (7) anxiety disorder; (8) and history of drug and alcohol abuse. (PageID.1291-1293.) At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or equaled the requirements of the Listing of Impairments found in 20 C.F.R. Pt. 404, Subpt. P, App. 1. (PageID.1293-1295.) At step four, the ALJ determined Plaintiff retained the RFC based on all the impairments, through her date last insured, to perform:

light work as defined in 20 CFR 404.1567(b) limited to lifting and carrying ten pounds frequently and up to twenty pounds occasionally. The claimant could stand and walk for up to two hours, and sit for up to six hours in an eight-hour workday. However, the claimant required a sit-stand option that allowed her to change positions from sit to stand and stand to sit at least every thirty minutes. The claimant could occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs, but she could not climb ladders, ropes, or scaffolds. The claimant could also have only occasional exposure to extreme cold, and no exposure to vibration. Additionally, the claimant could understand, remember, and perform simple tasks and make simple work-related decisions. The claimant could also only adjust to occasional changes in her work environment or work expectations. However, the claimant retained the ability to work independently and to interact with supervisors, coworkers, and the public.

(PageID.1295-1296.) Continuing with the fourth step, the ALJ determined that Plaintiff was incapable of performing her past relevant work. (PageID.1321-1322.) At the fifth step, the ALJ questioned the VE to determine whether a significant number of jobs exist in the economy that Plaintiff could perform given her limitations. See Richardson, 735 F.2d at 964. The expert testified that Plaintiff could perform other work as a light assembler (250, 000 national jobs), packager (122, 000 national jobs), and machine tender (101, 000 national jobs). (PageID.1386-1387.) Based on this record, the ALJ found that Plaintiff was capable of making a successful adjustment to work that exists in significant numbers in the national economy. (PageID.1323.)

         Accordingly, the ALJ again concluded that Plaintiff was not disabled from July 21, 2005, through December 31, 2010, the date last insured. (PageID.1323.)

         DISCUSSION

         1.The ALJ's Decision is Not Internally Inconsistent.

         Plaintiff first argues that the specific limitations articulated by the ALJ in her RFC assessment do not adequately take account of, or properly correlate with, her limitations with respect to concentration, persistence, and pace. (PageID.2086-2088.) Plaintiff, however, fails to recognize that the ALJ's assessment of disorders at steps two and three:

are not an RFC assessment but are used to rate the severity of mental impairment(s) at steps 2 and 3 of the sequential evaluation process. The mental RFC assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment by itemizing various functions contained in the broad categories found in paragraphs B and C of the adult mental disorders listings in 12.00 of the Listing of Impairments.

SSR 96-8p, 1996 WL 374184, at *4 (July 2, 1996); see also 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00.A. (“RFC is a multidimensional description of the work-related abilities you retain in spite of your medical impairments. An assessment of your RFC complements the functional evaluation necessary for paragraphs B and C of the listings by requiring consideration of an expanded list of work-related capacities that may be affected by mental disorders when your impairment(s) is severe but neither meets nor is equivalent in severity to a listed mental disorder”).

         The court discussed a similar issue in Pinkard v. Commissioner of Social Security Administration, No. 1:13-cv-1339, 2014 WL 3389206 (N.D. Ohio July 9, 2014). That case explained the difference between the findings made at step three to determine whether a claimant met the requirements of a particular listed impairment and the RFC determination made at step four as follows:

Next, Plaintiff argues that the ALJ erred in concluding that Plaintiff had moderate difficulties in concentration, persistence, and pace, while failing to include an appropriate limitation for these difficulties in the RFC findings . . . Plaintiff refers to the ALJ's paragraph B findings in his evaluation of Plaintiff's depression under 12.04 of the listing of impairments [ ]. 20 C.F.R. pt. 404, subpt. P, app. 1 Sections 12.04, 12.05, 12.06. However, the ALJ does not have to include paragraph B finding[s] in his RFC finding. Paragraph B findings under the listings are findings at step three of the sequential evaluation process, and are not RFC findings pertaining to steps four and five of the sequential evaluation process. 20 C.F.R. pt. 404, subpt. P, app. 1, Section 12.00. Hence, the ALJ was correct in finding that Plaintiff had moderate limitations in evaluating her mental impairment under the listings at step three of the sequential evaluation process, and in not including a “moderate limitation in concentration, persistence, and pace” in his residual functional capacity finding at steps four and five.

Pinkard, 2014 WL 3389206 at *10. Accordingly, “[c]ourts have repeatedly found that in the absence of medical evidence supporting specific limitations . . . an RFC's limitation to simple repetitive tasks may very well be adequate to address a claimant's moderate impairment as to concentration, persistence, and pace.” Kardos v. Comm'r of Soc. Sec., 2013 WL 1869110 at *1 (W.D. Mich., May 3, 2013). The record in this case does not contain specific limitations as to concentration, persistence, and pace. Cf. Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 516 (6th Cir. 2010) (remanding when the ALJ had adopted a specific limitation for “simple repetitive tasks” in “[two-hour] segments over an eight-hour day where speed was not critical.”) Thus, the question becomes whether the evidence substantially supports the ALJ's conclusion that the aforementioned limitations sufficiently account for Plaintiff's non-exertional limitations, including those regarding concentration, persistence, and pace. The Court finds that there is.

         Indeed, Plaintiff does not point to any records establishing greater limitations in concentration, persistence, and pace, than those accounted for in the RFC. Treatment records do indicate that Plaintiff experienced difficulties with substance abuse, and had received treatment for depression and anxiety, but was not otherwise experiencing symptoms inconsistent with the ALJ's assessment. Plaintiff's depression, for example, was described at times as “stable.” (PageID.734.) She was also described as alert, oriented, focused, and coherent. (PageID.730-732.) Further, she reported improvement after taking medication. (PageID.610, 730-731.) Though Plaintiff reported experiencing continued difficulties, no medical provider offered specific limitations to account for these impairments. At an October 2008, psychological evaluation with Dr. Timothy Zwart, Ed.D, Plaintiff was diagnosed with ADHD, and began taking medication for that disorder as well as attending counseling sessions. (PageID.793-797.) Plaintiff appears to have experienced a dramatic improvement with this treatment. She reported feeling “much more pulled together” and at several appointments she reported that her concentration and organization had improved. (PageID.803, 844, 878.) Though the record also shows Plaintiff at times reported confusion and would isolate herself, again, the record contains no specific limitations to account for these impairments. In sum, the ALJ adequately accounted for Plaintiff's non-exertional impairments when determining Plaintiff's RFC. The Court finds no inconsistency here.

         2.The ALJ's Evaluation of ...


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