United States District Court, W.D. Michigan, Southern Division
T. NEFF UNITED STATES DISTRICT JUDGE
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.
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).
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.
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.
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). 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.
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.
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
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.
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.)
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.)
The ALJ's Decision is Not Internally
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
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).
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 ...