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Brady v. Colvin

United States District Court, Sixth Circuit

May 7, 2013

ERIKA RENEE BRADY, Plaintiff,
v.
CAROLYN W. COLVIN[1], ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

GEORGE J. LIMBERT, Magistrate Judge.

Erika Renee Brady ("Plaintiff") seeks judicial review of the final decision of Carolyn W. Colvin ("Defendant"), Commissioner of the Social Security Administration ("SSA"), denying her application for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB"). ECF Dkt. #1. For the following reasons, the undersigned recommends that the Court AFFIRM the ALJ's decision and dismiss Plaintiff's case with prejudice.

I. PROCEDURAL AND FACTUAL HISTORY

On March 4, 2009, Plaintiff applied for SSI and DIB alleging disability beginning on January 1, 2006, Plaintiff's nineteenth birthday. ECF Dkt. #14 ("Tr.") at 18.[2] Plaintiff's date last insured is June 30, 2010. Tr. at 20. The SSA denied Plaintiff's application initially and on reconsideration.[3] Tr. at 97-100. Plaintiff requested an administrative hearing, and on November 4, 2010, an ALJ conducted an administrative hearing and accepted the testimony of Plaintiff, who was represented by counsel, and Thomas Nemberger, an impartial vocational expert ("VE"). Tr. at 42-92. On April 14, 2011, the ALJ issued a Decision denying benefits. Tr. at 18-41. Plaintiff filed a request for review, which was denied by the Appeals Council on June 27, 2012. Tr. at 1-5.

On August 24, 2012, Plaintiff filed the instant suit seeking review of the Decision. ECF Dkt. #1. On February 14, 2012, Plaintiff filed a brief on the merits. ECF Dkt. #18. On March 28, 2013, Defendant filed a brief on the merits. ECF Dkt. #19. Plaintiff filed a reply brief on April 11, 2013. ECF Dkt. #20.

II. SUMMARY OF RELEVANT PORTIONS OF THE ALJ'S DECISION

The ALJ determined that Plaintiff, who was twenty-three years old on the date of the hearing, suffered from regional enteritis; endometriosis; Crohn's disease; irritable bowel disease; pyelonephritis; eating disorder, NOS; anorexia nervosa, in remission; bulimia nervosa, in remission; obsessive-compulsive disorder; depressive disorder, NOS; and borderline personality disorder, which qualified as severe impairments under 20 C.F.R. §§ 404.1520(c) and 416.920(c). Tr. at 21. The ALJ further determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, 20 C.F.R. §§404.1520(d), 404-1525, 404.1526, 416.920(d), 416.925 and 416.926 ("Listings"). Tr. at 21.

The ALJ found that Plaintiff had the residual functional capacity ("RFC") to perform light work as defined in 20 C.F.R. § 404.1567(b) and 416.967(b) - including the exertional abilities to lift and/or carry up to ten pounds frequently and up to twenty pounds occasionally and to sit, stand, and walk each for six hours during the course of an eight-hour day - except that she is further limited as follows: She must have access to a restroom as needed, quantified at every two hours; She may never climb ladders, ropes, or scaffolds and can only occasionally climb ramps and stairs; and she is limited to "low-stress" work, defined as precluding tasks that involve high production quotas such as piecework or assembly line work, strict time requirements, arbitration, negotiation, confrontation, directing the work of others, or being responsible for the safety of others.

The ALJ ultimately concluded that, although Plaintiff had no past relevant work, there were jobs that existed in significant numbers in the national economy that Plaintiff can perform, including that of order clerk, food and beverage, mail clerk, and sorter. Tr. at 30. As a consequence, the ALJ found that Plaintiff had not been under a disability as defined in the SSA and was not entitled to benefits.

III. STEPS TO EVALUATE ENTITLEMENT TO SOCIAL SECURITY BENEFITS

An ALJ must proceed through the required sequential steps for evaluating entitlement to benefits. These steps are:

1. An individual who is working and engaging in substantial gainful activity will not be found to be "disabled" regardless of medical findings (20 C.F.R. §§ 404.1520(b) and 416.920(b) (1992));
2. An individual who does not have a "severe impairment" will not be found to be "disabled" (20 C.F.R. §§ 404.1520(c) and 416.920(c) (1992));
3. If an individual is not working and is suffering from a severe impairment which meets the duration requirement, see 20 C.F.R. § 404.1509 and 416.909 (1992), and which meets or is equivalent to a listed impairment in 20 C.F.R. Pt. 404, Subpt. P, App. 1, a finding of disabled will be made without consideration of vocational factors (20 C.F.R. §§ 404.1520(d) and 416.920(d) (1992));
4. If an individual is capable of performing the kind of work he or she has done in the past, a finding of "not disabled" must be made (20 C.F.R. §§ 404.1520(e) and 416.920(e) (1992));
5. If an individual's impairment is so severe as to preclude the performance of the kind of work he or she has done in the past, other factors including age, education, past work experience and residual functional capacity must be considered to determine if other work can be performed (20 C.F.R. §§ 404.1520(f) and 416.920(f) (1992)).

Hogg v. Sullivan, 987 F.2d 328, 332 (6th Cir. 1992). The claimant has the burden to go forward with the evidence in the first four steps and the Commissioner has the burden in the fifth step. Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990).

IV. STANDARD OF REVIEW

Under the Social Security Act, the ALJ weighs the evidence, resolves any conflicts, and makes a determination of disability. This Court's review of such a determination is limited in scope by § 205 of the Act, which states that 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). Therefore, this Court's scope of review is limited to determining whether substantial evidence supports the findings of the Commissioner and whether the Commissioner applied the correct legal standards. Abbott v. Sullivan, 905 F.2d 918, 922 (6th Cir. 1990).

The substantial-evidence standard requires the Court to affirm the Commissioner's findings if they are supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Cole v. Astrue, 661 F.3d 931, 937, citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (citation omitted). An ALJ's failure to follow agency rules and regulations "denotes a lack of substantial evidence, even where the conclusion of the ALJ may be justified based upon the record." Cole, supra , citing Blakely v. Comm'r of Soc. Sec., 581 F.3d 399, 407 (6th Cir.2009) (citations omitted). When substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found plaintiff disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir.2001). Thus, the ALJ has a "zone of choice' within which he can act without the fear of court interference." Id. at 773.

V. ANALYSIS

Plaintiff advances two arguments in this appeal. First, Plaintiff contends that the RFC formulated by the ALJ is not supported by substantial evidence. More specifically, Plaintiff contends that, although the ALJ gave significant weight to the medical opinion of treating gastroenterologist, Duane C. Roe, M.D., who concluded that Plaintiff required "variable" restroom breaks throughout the day, the ALJ nonetheless provided restroom breaks every two hours in the RFC. Second, Plaintiff contends that the ALJ erred by not properly evaluating Plaintiff under the Listings, and by failing to consult a medical expert with regard to whether Plaintiff's impairments medically equal a Listing.

A. Medical history

Plaintiff was hospitalized repeatedly during her teenage years for anorexia nervosa (binge-purge type), mixed mood disturbances (anxiety and depression), and self-injurious behavior. Tr. at 308, 319, 336. After successfully treating her eating disorders, she began experiencing gastrointestinal problems while still in high school and was ultimately diagnosed with Irritable Bowel Syndrome ("IBS") and Crohn's disease.

In a letter dated December 7, 2005, Lori A. Mahajan, M.D., Plaintiff's treating pediatric gastroenterologist at the Cleveland Clinic, wrote that Plaintiff experiences "flares" of her Crohn's disease which might result in some unexpected missed days from school.[4] Tr. at 1261. On December 20, 2005, Plaintiff was admitted to the Cleveland Clinic for four days due an exacerbation of her Crohn's disease. Tr. at 691. Plaintiff reported fatigue, weight loss, nausea and vomiting, as well as four and eight bloody bowel movements per day. She further reported that she felt urgency to move her bowels almost every time that she eats food. Plaintiff stated that, although her appetite was good, she did not eat during the day in order to avoid having to use the restroom.

In January of 2006, Dr. Mahajan noted that Plaintiff's greatest concern was her fecal urgency. Tr. at 683. Dr. Mahajan's records reflect that her height was 5' 6" and she weighed onehundred-and-one pounds. Plaintiff was using a nasal gastric feeding to supplement her nutrition. In March of 2006, Plaintiff was ...


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