BRANDON N. BRYANT, Plaintiff,
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
GEORGE J. LIMBERT, Magistrate Judge.
Brandon N. Bryant ("Plaintiff") seeks judicial review of the final decision of Carolyn W. Colvin ("Defendant"), Acting Commissioner of the Social Security Administration ("SSA"), denying his application for Supplemental Security Income ("SSI"). 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 April 8, 2008, Plaintiff applied for SSI alleging disability beginning on December 1, 2000, when Plaintiff was sixteen years of age. Plaintiff was twenty-four years of age when he filed his application, and twenty-six years of age at the hearing. ECF Dkt. #12 ("Tr.") at 142-144. The SSA denied Plaintiff's application initially and on reconsideration. Tr. at 88-89. Plaintiff requested an administrative hearing, and, on November 11, 2010, an ALJ conducted an administrative hearing via videoconference and accepted the testimony of Plaintiff, who was represented by counsel, and Larry Takki, an impartial vocational expert ("VE"). Tr. at 43-87. Plaintiff filed a request for review, which was denied by the Appeals Council on June 19, 2012. Tr. at 2-6.
On August 17, 2012, Plaintiff filed the instant suit seeking review of the Decision. ECF Dkt. #1. On January 18, 2013, Plaintiff filed a brief on the merits. ECF Dkt. #14. On March 4, 2013, Defendant filed a brief on the merits. ECF Dkt. #15. Plaintiff filed a reply brief on March 16, 2013. ECF Dkt. #16.
II. SUMMARY OF RELEVANT PORTIONS OF THE ALJ'S DECISION
The ALJ determined that Plaintiff suffered from right upper extremity pain and weakness post status right ulnar artery ligation and flexor tendon repair, which was performed on September 16, 2005, and borderline intellectual functioning, which qualified as severe impairments under 20 C.F.R. §416.920(c). Tr. at 22. 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. §§416.920(d), 416.925 and 416.926 ("Listings"). Tr. at 22-23.
The ALJ found that Plaintiff had the residual functional capacity ("RFC") to perform light work as defined in 20 C.F.R. § 416.967(b), except that Plaintiff is limited to sitting, standing, and walking six hours in an eight-hour workday with normal breaks; he must avoid ladders, ropes, and scaffolds; he is limited to occasional handling and fingering with the right upper extremity and has unlimited use of his left hand; and he is limited to performing unskilled work with routine changes in the work environment. Tr. at 23.
The ALJ ultimately concluded that, although Plaintiff has no past relevant work, there were jobs that existed in significant numbers in the national economy that Plaintiff can perform, including that of flagger, usher, and parking lot attendant. Tr. at 36. 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.
Plaintiff advances several arguments in this appeal. First, Plaintiff contends that the ALJ failed to include a limitation to one-step and two-step tasks in the RFC despite crediting the opinion of agency physicians that concluded that Plaintiff was limited to work involving one-step or twostep tasks. Second, Plaintiff contends that the RFC does not accommodate his inability to grasp or finger with his dominant (right) hand. Third, Plaintiff alleges that the ALJ did not fulfill her affirmative responsibility to ask the VE whether his testimony was consistent with the Dictionary of Occupational Titles ("DOT"). Fourth, Plaintiff contends that he cannot perform the occupations identified by the VE, since all of the occupations require two-armed work. Fifth, Plaintiff alleges that the ALJ's Decision was arbitrary because she committed ...