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Leverich v. Commissioner of Social Security

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

June 29, 2017




         On January 7, 2013, Plaintiff Linda S. Leverich filed an application for supplemental security income (SSI) benefits. See Transcript of Administrative Hearing. (PageID.277-284). Plaintiff alleges that she became disabled due to nerve damage in her neck, an injured arm, depression, pain in her right leg, diabetic seizures, and brain damage. (PageID.319). Plaintiff's application was denied initially and Plaintiff requested an administrative hearing before an Administrative Law Judge (ALJ). ALJ Charles Arnold held a hearing on December 19, 2014. At the hearing, Plaintiff was represented by Kenneth Zarrillo. Plaintiff and Vocational Expert Jeffrey Carlisle testified. In a decision issued on February 27, 2015, the ALJ denied Plaintiff's claim for benefits. (PageID.44-55).

         The ALJ found that Plaintiff could perform jobs that existed in significant numbers in the national economy given Plaintiff's residual functional capacity (RFC) and, therefore, concluded that Plaintiff was not under a “disability” as defined by the Social Security Act (20 C.F.R. § 416.920(g)). The ALJ's decision became the agency's final decision when the Appeals Council denied Plaintiff's request for review. Plaintiff now seeks judicial review of the agency's final decision denying her request for disability benefits.[1]

         Plaintiff was 53 at the time of the hearing and had an eleventh grade high school education. (PageID.40-41). Plaintiff had no income and was living with a family friend who was helping her financially. (PageID.41). Plaintiff had not worked since January 2013. Plaintiff could read and write. She lost her driver's license after she was arrested and received a fine related to prostitution. (PageID.41-42). She testified that she did “not really” drink alcohol, but that she had been arrested for driving under the influence about three or four years before the hearing. (PageID.42).

         Plaintiff has severe pain from a neck injury that caused degeneration in her cervical spine at ¶ 5-C6. (PageID.43). The pain which radiates from her neck to her right arm feels better when she is lying down, but is worse after she wakes-up. Id. She describes the pain as sharp. Id. She has trouble writing for extended periods, and difficulty handling smaller objects such as buttons and zippers. (PageID.45). She experiences headaches once every three days and is sensitive to light. Id. She is unable to work when she gets headaches. (PageID.46). Plaintiff states that she also experiences severe pain in her left hip. (PageID.46-47). Plaintiff also described severe pain in her right arm that causes her to drop things. (PageID.48).

         Plaintiff experiences daily depression that causes her to withdraw from other people and to cry at least weekly. (PageID.49-50). Plaintiff describes daily panic attacks or attacks at least a couple of times per week that cause her to hyperventilate and which could last all day. (PageID.51).

         Plaintiff's hip causes her to experience discomfort while sitting. She feels like she can only sit for ten minutes before she needs to stand-up. (PageID.52). She can only stand-up for two to five minutes before she has to sit back down to gather her strength. Id. She can only walk for about 30 feet and cannot lift anything without dropping. (PageID.53). Plaintiff testified that she spends her average day watching television, sitting down, making her bed, and doing dishes, but she cannot hold things. (PageID.54). Plaintiff is unable to cook a full meal because she cannot stand, but is able to use a microwave to make something quick. (PageID.55). She has trouble dressing due to her hip. Id. She shops for groceries by holding onto the cart. (PageID.56). She has trouble sleeping due to neck pain and usually takes one or two half hour or longer naps during the day. Id.

         The vocational expert testified that Plaintiff had worked as an unskilled worker at a heavy exertion level in her past employment as a nursery laborer, and as a semi-skilled worker at a sedentary level as a telemarketer. (PageID.57). Based upon her functional capacity, the ALJ placed restrictions on Plaintiff's ability to perform light, low stress work that had no production demands, and involves simple, routine, repetitive tasks with simple job instructions, that did not involve any interaction with the general public, minimal contact with co-workers, with the additional limitations of no constant handling, feeling, fingering, or grasping with the right hand. (PageID.58). The vocational expert testified that Plaintiff could perform jobs such as a cleaner in a housekeeping setting (DOT number 323.687-014), with 10, 000 jobs statewide and 130, 000 jobs nationally, as an advertising material distributor (DOT number 230.687-010), with 1, 200 jobs statewide and 48, 000 jobs nationally, and as sales attendant (DOT number 299.677-010), with 15, 000 jobs statewide and 205, 000 jobs nationally. (PageID.59). The vocational expert testified that if an individual was limited to only occasional handling and fingering with the dominant right arm, that restriction would eliminate the individual from competitive employment. (PageID.60).

         The ALJ determined that Plaintiff suffers from degenerative disc disease of the cervical spine, osteoarthritis, and depression/anxiety disorder. (PageID.46). Based on these conditions and the ALJ's determination of Plaintiff's physical and mental capabilities, the ALJ concluded that Plaintiff could not perform her past relevant work as a nursery worker and a telemarketer. (PageID.53). However, the ALJ concluded that there were other jobs existing in significant numbers in the state and national economy that Plaintiff could perform. (PageID.54).

         After the Appeals Council denied Plaintiff's appeal, Plaintiff filed this action asserting that the ALJ's decision to deny SSI benefits was improper because the jobs the ALJ stated that Plaintiff could perform are inconsistent with the ALJ's finding that Plaintiff must not have interaction with the public. Plaintiff points out that each of the positions require interaction with the public in a public setting according to their definitions in the Dictionary of Occupational Titles (DOT). Plaintiff further argues that the ALJ failed to consider the requirement based upon the consultant examiner's medical recommendation that Plaintiff needed use of an assistance device, such as a cane or walker. Plaintiff also asserts that the Appeals Council failed to properly consider new and additional medical evidence relating to Plaintiff's injuries after she was struck by a vehicle. The Commissioner has filed a response arguing that the ALJ decision is supported by substantial evidence. The Commissioner attached the medical evidence relating to the vehicle accident that Plaintiff provided to the Appeals Council. Plaintiff has filed a motion to strike that evidence arguing that it is improper for the Court to consider that new evidence because the ALJ never considered it in making his decision.

         “[R]eview of the ALJ's decision is limited to whether the ALJ applied the correct legal standards and whether the findings of the ALJ are supported by substantial evidence.” Winslow v. Comm'r of Soc. Sec., 566 Fed. App'x 418, 420 (6th Cir. 2014) (quoting Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009)); see also 42 U.S.C. § 405(g). The findings of the ALJ are conclusive if they are supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is defined as more than a mere scintilla of evidence but “such relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Jones v. Sec'y, Health & Human Servs., 945 F.2d 1365, 1369 (6th Cir. 1991). This Court is not permitted to try the case de novo, nor resolve conflicts in the evidence and cannot decide questions of credibility. Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); see Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003) (noting the ALJ's decision cannot be overturned if sufficient evidence supports the decision regardless of whether evidence also supports a contradictory conclusion). This Court is required to examine the administrative record as a whole and affirm the Commissioner's decision if it is supported by substantial evidence, even if this Court would have decided the matter differently. See Kinsella v. Schwikers, 708 F.2d 1058, 1059 (6th Cir. 1983); see also Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (holding that the court must affirm a Commissioner even if substantial evidence would support the opposite conclusion).

         The ALJ must employ a five-step sequential analysis to determine if Plaintiff is under a disability as defined by the Social Security Act. Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004). If the ALJ determines Plaintiff is or is not disabled under a step, the analysis ceases and Plaintiff is declared as such. 20 C.F.R. § 404.1520(a). Steps four and five use the residual functional capacity assessment in evaluating the claim. Id.

         At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since the application date for SSI benefits on January 7, 2013. (PageID.46). At step two, the ALJ determined that Plaintiff had the following severe impairments: degenerative disc disease of the cervical spine, osteoarthritis, depression/anxiety disorder. The ALJ determined that Plaintiff had a successful treatment history for diabetic seizures and hypoglycemia. (PageID.46). At step three, the ALJ determined that Plaintiff's impairments or a combination of impairments did not meet or medically equal the severity of one of the listed impairments in 20 C.F.R. part 404, Subpart P, Appendix 1. (PageID.47). At step four, the ALJ determined that Plaintiff has the residual functional capacity to perform light work, as defined in 20 C.F.R. § 416.967(b), with additional limitations: no constant handling, fingering, feeling or grasping with the right hand and low stress work, no high production demands; only simply routine, repetitive tasks with simple instructions, no interaction with the public and only minimal contact with others at the worksite. (PageID.48). At step five, the ALJ concluded that Plaintiff could not perform past relevant work, but that there were jobs available in significant numbers in the Florida state economy and the national economy, such as cleaner/housekeeper, DOT Code 323.687-014 (10, 000 state jobs, 130, 000 national jobs), Advertising Material Distributor, DOT Code 230.687-010 (1, 200 state jobs, 48, 000 national jobs), and Sales Attendant, DOT Code 299.677-010 (15, 000 state jobs, 205, 000 national jobs). Therefore, the ALJ determined that Plaintiff was not disabled as defined under the Social Security Act, since January 7, 2013. (PageID.54-55).

         Plaintiff contends that the ALJ committed reversible error by (1) by failing to consider that the jobs relied upon to deny benefits were inconsistent with the RFC finding, and (2) by failing to consider that Plaintiff needed use of an assistive device such as a walker or a cane. In addition, Plaintiff claims that the Appeals Council erred by failing to determine that the new medical evidence showing that Plaintiff fractured her pelvis and right tibia after being struck by an automobile three weeks prior to the ALJ's decision was a basis for a remand.

         Plaintiff argues that the occupations that the ALJ concluded that she can perform each require contact with the public in contradiction to the limitations imposed by the ALJ. Therefore, Plaintiff argues that substantial evidence does not exist to support the ALJ's conclusion that jobs exist at the light exertional level that Plaintiff is able to perform. The ALJ found that Plaintiff could have “no interaction with the public.” (PageID.48, 52). The ALJ accepted the vocational expert testimony that Plaintiff could perform the following jobs:

Cleaner, Housekeeping, DOT 323.687-014:
Cleans rooms and halls in commercial establishments, such as hotels, restaurants, clubs, beauty parlors, and dormitories, performing any combination of following duties: Sorts, counts, folds, marks, or carries linens. Makes beds. Replenishes supplies, such as drinking glasses and writing supplies. Checks wraps and renders personal assistance to patrons.
Advertising Material Distributor, DOT 230.687-010:
Distributes advertising material, such as merchandise samples, handbills, and coupons, from house to house, to business establishments, or to persons on street, following ...

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