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Tiggelman v. Commissioner of Social Security

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

September 17, 2019

Lynette Tiggelman, Plaintiff,
v.
Commissioner of Social Security, Defendant.

          Honorable Robert J. Jonker Judge.

          REPORT AND RECOMMENDATION

          PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE

         This is a social security action brought under 42 U.S.C. § 1383(c)(3), seeking review of a final decision of the Commissioner of Social Security, finding that plaintiff was not entitled to supplemental security income (SSI) benefits. Plaintiff filed her application for SSI benefits on October 23, 2012.[1] On May 25, 2017, plaintiff received a hearing before the ALJ. (ECF No. 9-4, PageID.159-234). The ALJ issued his decision on August 18, 2017, finding that plaintiff was not disabled. (Op., ECF No. 9-3, PageID.127-51). On October 19, 2018, the Appeals Council denied review (ECF No. 9-3, PageID.113-16), rendering the ALJ's decision the Commissioner's final decision.

         Plaintiff timely filed a complaint seeking judicial review of the Commissioner's decision. Plaintiff argues that the Commissioner's decision should be overturned on the following grounds:

1. The ALJ's residual functional capacity findings are inconsistent with his step-3 findings that plaintiff had moderate limitations in concentration, persistence, or pace.
2. The ALJ violated the treating physician rule in the weight that he gave to the opinions of Amy Hogue, M.D.
3. The ALJ gave inadequate reasons to accept the opinions that Jeffrey Andert, Ph.D., expressed in his medical expert testimony at plaintiff's May 25, 2017, hearing.
4. The ALJ gave inadequate reasons to reject the opinions of Dale Blum, M.D., a medical consultant, regarding plaintiff's RFC.
5. The ALJ's RFC finding is not supported by substantial evidence.
6. The ALJ “cherry picked” the record.
7. The ALJ failed to address regional jobs.

(Plf. Brief, 2, ECF No. 15, PageID.1283).

         For the reasons set forth herein, I recommend that the Court affirm the Commissioner's decision.

         Standard of Review

         When reviewing the grant or denial of social security benefits, this court is to determine whether the Commissioner's findings are supported by substantial evidence and whether the Commissioner correctly applied the law. See Elam ex rel. Golay v. Commissioner, 348 F.3d 124, 125 (6th Cir. 2003); Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). The scope of the court's review is limited. Buxton, 246 F.3d at 772. The court does not review the evidence de novo, resolve conflicts in evidence, or make credibility determinations. See Ulman v. Commissioner, 693 F.3d 709, 713 (6th Cir. 2012); Walters v. Commissioner, 127 F.3d 525, 528 (6th Cir. 1997). “The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive[.]” 42 U.S.C. § 405(g); see McClanahan v. Commissioner, 474 F.3d 830, 833 (6th Cir. 2006). “The findings of the Commissioner are not subject to reversal merely because there exists in the record substantial evidence to support a different conclusion. . . . This is so because there is a ‘zone of choice' within which the Commissioner can act without fear of court interference.” Buxton, 246 F.3d at 772-73; see Gayheart v. Commissioner, 710 F.3d 365, 374 (6th Cir. 2013) (“A reviewing court will affirm the Commissioner's decision if it is based on substantial evidence, even if substantial evidence would have supported the opposite conclusion.”).

         The ALJ's Decision

         The ALJ found that plaintiff had not engaged in substantial gainful activity on or after October 23, 2012, the application date. (Op., 3, ECF No. 9-3, PageID.129). Plaintiff had the following severe impairments: “lumbar degenerative disc disease; status post left shoulder dislocation and impingement syndrome; left carpal tunnel syndrome; interstitial cystitis with frequent urinary tract infections; bipolar II disorder; generalized anxiety disorder; and borderline personality disorder.” (Id. at 4, PageID.130). Plaintiff did not have an impairment or combination of impairments that met or equaled a listing impairment. (Id. at 5, PageID.131). The ALJ found that plaintiff retained the residual functional capacity (RFC) for a range of light work with the following exceptions:

[T]he claimant can do no greater than frequent forceful gripping or grasping with her left upper extremity, and she can do no overhead reaching or work with her left upper extremity. The claimant can only frequently balance, stoop, crouch, crawl, and climb ramps or stairs, and she can never climb ladders, ropes, or scaffolds. Additionally, the claimant is limited to doing simple, routine, and repetitive work that involves making simple, work-related decisions and tolerating no more than occasional workplace changes. The claimant is also limited to working in a low-stress environment that involves no fast-pace or production rate quotas such as assembly line work. However, the claimant can tolerate typical changes involved with simple work activity. The claimant can have only brief, superficial contact with supervisors and coworkers, and she is limited to working in small, familiar groups of no greater than six to eight individuals. The claimant can have no contact with the general public. The claimant also may not perform jobs that involve caretaking for other people, including children, the elderly, or the disabled.

(Id. at 8, PageID.134).

         The ALJ found that plaintiff's statements concerning the intensity, persistence and limiting effects of her symptoms were not entirely consistent with the medical evidence and the other evidence of record. (Id. at 17, PageID.143). Plaintiff has no past relevant work. (Id. at 23, PageID.149).

         The ALJ considered the testimony of a vocational expert (VE). In response to a hypothetical question regarding a person of plaintiff's age with her RFC, education, and work experience, the vocational expert (VE) testified that there were approximately 348, 000 jobs that exist in the national economy that she would be capable of performing.[2] (ECF No. 9-4, PageID.226-28). The ALJ found that this constituted a significant number of jobs, and that plaintiff was not disabled. (Op., 24-25, PageID.150-51).

         Discussion

         1.

         Plaintiff argues that the ALJ's residual functional capacity findings are inconsistent with his step-3 findings regarding plaintiff's moderate limitations in concentration, persistence or pace. (Plf. ...


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