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Palmer v. Commissioner of Social Security

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

May 17, 2017

KATHLEEN PALMER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant,

          OPINION

          JANET T. NEFF UNITED STATES DISTRICT JUDGE

         This is a social security action brought under 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of the Social Security Administration (Commissioner). Plaintiff seeks review of the Commissioner's decision denying her claim for disability insurance benefits (DIB) and supplemental security income (SSI) under Titles II and XVI 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 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 was thirty-four years of age on the date of the Administrative Law Judge's (ALJ) decision. (PageID.193, 287, 301.) She obtained a GED, and has attended some college classes. (PageID.226.) Plaintiff's past relevant work consists of work as a cashier / checker. (PageID.254.) Plaintiff applied for benefits on June 10, 2013, alleging disability beginning August 14, 2009, due to bipolar disorder, asthma, degenerative disc disease, back problems, hypertension, diabetes, and migraines. (PageID.287, 301, 391-403.) Plaintiff's applications were denied on October 2, 2013, after which time Plaintiff requested a hearing before an ALJ. (PageID.324-331, 334-335.) In a pre-hearing brief, Plaintiff amended her onset date to May 1, 2011. (PageID.519.) On December 23, 2014, Plaintiff appeared with her counsel before ALJ Kenneth E. Ball for an administrative hearing with testimony being offered by Plaintiff and a vocational expert (VE). (PageID.218-257.) In a written decision dated February 18, 2015, the ALJ determined that Plaintiff was not disabled. (PageID.193-217.) On May 10, 2016, the Appeals Council declined to review the ALJ's decision, making the ALJ's decision the Commissioner's final decision in the matter. (PageID.28-34.) This action followed.

         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 make a dispositive finding at any point in the review, no further finding is required. See 20 C.F.R. §§ 494.1520(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 the claimant's residual functional capacity (RFC). See 20 C.F.R. §§ 404.1545, 416.945.

         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.

         ALJ Ball determined that Plaintiff's claim failed at the fifth step of the evaluation. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her amended alleged disability onset date. (PageID.198.) At step two, the ALJ determined Plaintiff had the severe impairments of: (1) obesity; (2) degenerative disc disease; (3) asthma; (4) migraines; (5) bipolar disorder; and (6) anxiety. (PageID.298.) At the third step, 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. (PageID.200-202.) At the fourth step, the ALJ determined Plaintiff retained the RFC based on all the impairments:

to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) and SSR 83-10, specifically as follows: lift and/or carry twenty pounds occasionally and ten pounds frequently; stand and/or walk for six hours out of an eight-hour workday with regular breaks with the requirement to change to a sitting position every thirty minutes, sit for six hours out of an eight-hour workday with regular breaks with the requirement to change to a standing position every thirty minutes; push and/or pull within the weight limited indicated for lifting and/or carrying; occasional climbing of ramps and/or stairs, balancing, and stooping; no climbing of ladders, ropes, and/or scaffolds, kneeling, crouching, and crawling; no concentrated exposure to flowers, perfume, or freshly mown grass due to allergies; no concentrated exposure to fumes, odors, dusts, gases, poor ventilation, and other respiratory irritants; understand, remember, and carry out only simple instructions to perform tasks that are simple and routine and require only simple work-related decisions; and no other exertional or nonexertional limitations.

         (PageID.202.) Continuing with the fourth step, the ALJ found that Plaintiff was unable to perform her past relevant work. (PageID.210.) 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 VE testified that Plaintiff could perform other work as a machine tender (7, 800 regional and 101, 000 national jobs), assembler (14, 000 regional and 250, 000 national jobs), and line attendant (4, 800 regional and 125, 000 national jobs). (PageID.254-256.) 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.212.)

         Accordingly, the ALJ concluded that Plaintiff was not disabled from May 1, 2011, the amended alleged disability onset date, through February 18, 2015, the date of decision. (PageID.212.)

         DISCUSSION

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

         Plaintiff claims the ALJ's decision is internally inconsistent because the ALJ failed to account for the moderate difficulties in concentration, persistence or pace he found at step three when developing the RFC and hypothetical to the vocational expert.

         Plaintiff's reliance on the ALJ's Paragraph B finding is misplaced. The ALJ made this finding at step three of the sequential evaluation when he considered whether Plaintiff met the requirements of various listed mental impairments (12.04 and 12.06). (PageID.200.) This finding was not the RFC finding made at step four of the evaluation. See Gentry v. Comm'r of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014) (RFC is determined at step four of the sequential evaluation); 20 CFR 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”). As the court explained in Pinkard v. Comm'r of Soc. Sec., No. 1:13-cv-1339, 2014 WL 3389206 (N.D. Ohio July 9, 2014).

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. Indeed, it is well established that the Paragraph B criteria used in determining whether a claimant meets or equals a listed impairment “are not an RFC assessment.” See SSR 96-8p, 1996 WL 374184, at *4 (SSA July 2, 1996). RFC is a more detailed assessment made by “itemizing various functions contained in the broad categories found in paragraphs B and C of the adult mental disorder listings in 12.00 or the Listing of Impairments.” Id. at *4; see Smith v. Colvin, No. 3-13-cv-570, 2014 WL 2159122, at *4 (W.D. N.C. May 23, 2014); Bordeaux v. Comm'r of Soc. Sec., No. 3:12-cv-1213, 2013 WL 4773577, at *12-13 (D. Or. Sept. 4, 2013); Collier v. Comm'r of Soc. Sec., No. 1:11-cv-1144, 2013 WL 4539631, at *5-6 (W.D. Mich. Aug. 27, 2013); Reynolds v. Comm'r of Soc. Sec., No. 10-110, 2011 WL 3897793, at *3 (E.D. Mich. Aug.19, 2011).

         Plaintiff claims that the above authorities are no longer valid in light of the Sixth Circuit case Keeton v. Comm'r of Soc. Sec., 583 F. App'x 515 (6th Cir. 2014). In that case, the Sixth Circuit found that it was “not clear” whether the ALJ had incorporated the moderate limitations that were earlier found into the hypothetical and RFC determination. That lack of clarity, combined with the court's earlier determination that the ALJ had failed to properly consider three medical opinions, led the court to conclude that the RFC and ...


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