United States District Court, W.D. Michigan, Northern Division
LINDA S. LEVERICH, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
TIMOTHY P. GREELEY UNITED STATES MAGISTRATE JUDGE.
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
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.
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).
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).
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).
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.
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).
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).
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.
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
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.
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,
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.
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
Advertising Material Distributor, DOT
Distributes advertising material, such as merchandise
samples, handbills, and coupons, from house to house, to
business establishments, or to persons on street, following