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Medina v. Berryhill

United States District Court, N.D. Ohio, Eastern Division

August 22, 2017

ANGEL J. MEDINA, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OF OPINION AND ORDER

          Jonathan D. Greenberg United States Magistrate Judge.

         This matter is before the Court on consent of the parties, pursuant to 28 U.S.C. § 636(c) and Local Rule 73.1(a). Plaintiff, Angel J. Medina (“Plaintiff”), challenges the final decision of Defendant, Nancy A. Berryhill, [1] Acting Commissioner of Social Security (“Commissioner”), denying his application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq. (“Act”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). For the reasons set forth below, the Commissioner's final decision is AFFIRMED.

         I. PROCEDURAL HISTORY

         In August 2009, Plaintiff filed an application for SSI alleging a disability onset date of June 1, 2009 and claiming disability due to breathing problems, sleep apnea, and depression. (Doc. No. 11 & 15, Transcript (“Tr.”) at 133.). The applications were denied initially and upon reconsideration, and Plaintiff requested a hearing before an administrative law judge (“ALJ”). (Tr. 84, 90, 93).

         On June 28, 2011, an ALJ held a hearing, during which Plaintiff, represented by counsel, and an impartial vocational expert (“VE”) testified. (Tr. 48). On December 12, 2011, the ALJ issued a written decision finding Plaintiff was not disabled. (Tr. 28). The ALJ's decision became final on April 4, 2013, when the Appeals Council declined further review. (Tr. 1).

         Plaintiff sought review in district court. (Tr. 486). On September 23, 2014, the district court reversed the ALJ's decision and remanded for further proceedings. See Medina v. Comm'r, Case No. 1:13cv1183 (N.D. Ohio) (McHargh, M.J.). Specifically, the court determined that the ALJ erred by failing to proffer post hearing evidence to Plaintiff. (Id.).

         The matter was remanded, and, on June 22, 2015, another administrative hearing was held. (Tr. 511). Plaintiff, represented by counsel, testified with the assistance of Spanish language intepreter. (Id.). A vocational expert also appeared and testified. (Id.). On December 3, 2015, the ALJ issued a decision denying benefits. (Tr. 479). The Appeals Council denied review and the Commissioner's decision became fnial on August 19, 2016. (Tr. 467).

         On October 14, 2016, Plaintiff filed the instant action challenging the Commissioner's final decision. (Doc. No. 1). The parties have completed briefing in this case. (Doc. Nos. 22, 24). Plaintiff asserts the following assignments of error:

(1) Whether the administrative law judge's finding that Mr. Medina had a limited education was supported by substantial evidence where Mr. Medina was in special education in Puerto Rico, he has required assistance with medical appointments due to his language barrier, he receives Spanish-language mental health care, and he has required interpreter services?
(2) Whether the administrative law judge's finding at Step 5 of the sequential evaluation is supported by substantial evidence where the administrative law judge erred in failing to find any limitation on Mr. Medina's ability to communicate in English or read in English and there is no evidence that Mr. Medina could perform the jobs identified if he is so limited?

         (Doc. No. 22 at 1).

         II. EVIDENCE

         As noted above, the issues raised in this appeal relate strictly to Plaintiff's English proficiency and literacy. The recitation of evidence that follows is accordingly limited to that particular issue.

         Plaintiff was thirty-three years-old at the time he filed his application for benefits. (Tr. 499). The record shows that Plaintiff was a Spanish-speaker; that he was in special education classes in Puerto Rico; that he dropped out of high school before the 12th grade; that he never obtained a GED; and that on a number of occasions he requested and used an interpreter. (Tr. 239, 241, 246, 253, 280, 305, 764). Plaintiff's disability report indicates that could not speak and understand English, but he was able to read and understand English. (Tr. 149). During emergency room visits in March 2010 and January 2011, Plaintiff used Spanish language interpreter. (Tr. 850, 862). One consultative examination was completed with the assistance of an interpreter. (Tr. 196). The examiner, Richard Halas, M.A., reported that “[t]he evaluation was completed with the help of an interpreter as Mr. Medina speaks mostly in Spanish.” (Tr. 196). A second consultative examination was conducted in English, and the examiner, Thomas Zeck, Ph.D., reported that

It was most difficult to get information from Mr. Medina. He had difficulty with the English language and he seemed to have difficulty explaining himself and giving information to this examiner. * * * [I]t was very difficult to understand him because of his not having a good command of the English language. Very often is was necessary to ask him to repeat himself and when he did he was mor understandable.

(Tr. 279). The third consultative examination was conducted in Spanish. (Tr. 763).

         During the 2011 administrative hearing, no interpreter was present, and Plaintiff appeared without representation. (Tr. 48). Neither Plaintiff nor the ALJ indicated that Plaintiff was having any difficulty understanding the ALJ's questions or responding to them. During the hearing, Plaintiff testified, in English, that he can could read and write English “a little bit.” (Tr. 59). An interpreter was present for and participated in the 2015 remand hearing. (Tr. 513, 515, 521). Plaintiff testified that he knew how to write in Spanish, but not correctly. (Tr. 535).

         Vocational expert Robert Mosely also testified at the hearing. (Tr. 538). The ALJ posed a hypothetical question to the VE, assuming an individual of Plaintiff's age, education, and vocational background, who could perform medium work as defined at 20 C.F.R. § 416.967(c), with additional limitations as follows: could never climb ropes, ladders, or scaffolds, limited to frequent handling and fingering with the upper extremities, limited to simple, routine tasks with no fast-paced work, no strict production quotas, only simple work instructions and decisions, and minimal changes in the work setting. (Tr. 539). Further, the hypothetical individual was limited to occasional and superficial interaction with the public, coworkers and supervisors. (Tr. 539).

         The VE testified that such an individual could perform the jobs of cook helper (3, 000 regional jobs, 600, 000 jobs nationally); folder (1, 200 regional jobs, 200, 000 jobs nationally); and bagger (1, 200 regional jobs, 100, 000 nationally). (Tr. 540).

         IV. SUMMARY OF COMMISSIONER'S DECISION[2]

         The ALJ determined that Plaintiff was capable of performing a reduced range of medium work. (Tr. 497). He was precluded from climbing ladders, ropes and scaffolds and limited to no more than frequent handling and fingering. (Tr. 497). Plaintiff was further limited to simple, routine tasks with no fast-paced work; no strict production quotas; only simple work instructions and decisions; minimal changes in the work setting; and occasional and superficial interaction with supervisors, co-workers and the public. (Tr. 497). The ALJ concluded, based on the VE's testimony, that Plaintiff, despite his impairments, could perform a significant number of other jobs, and, therefore, was not disabled under the Act. (Tr. 500-01).

         V. STANDARD OF REVIEW

         “The Social Security Act authorizes narrow judicial review of the final decision of the Social Security Administration (SSA).” Reynolds v. Comm'r of Soc. Sec., 2011 WL 1228165 at * 2 (6th Cir. April 1, 2011). Specifically, this Court's review is limited to determining whether the Commissioner's decision is supported by substantial evidence and was made pursuant to proper legal standards. See Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010); White v. Comm'r of Soc. Sec., 572 F.3d 272, 281 (6th Cir. 2009). Substantial evidence has been defined as “‘more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec'y of Health and Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). In determining whether an ALJ's findings are supported by substantial evidence, the Court does not review the evidence de novo, make credibility determinations, or weigh the evidence. Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989).

         Review of the Commissioner's decision must be based on the record as a whole. Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The findings of the Commissioner are not subject to reversal, however, merely because there exists in the record substantial evidence to support a different conclusion. Buxton v. Halter, 246 F.3d 762, 772-3 (6th Cir. 2001) (citing Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)); see also Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999) (“Even if the evidence could also support another conclusion, the decision of the Administrative Law Judge must stand if the evidence could reasonably support the conclusion reached.”). This is so because there is a “zone of choice” within which the Commissioner can act, without the fear of court interference. Mullen, 800 F.2d at 545 (citing Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)).

         In addition to considering whether the Commissioner's decision was supported by substantial evidence, the Court must determine whether proper legal standards were applied. Failure of the Commissioner to apply the correct legal standards as promulgated by the regulations is grounds for reversal. See, e.g., White v. Comm'r of Soc. Sec., 572 F.3d 272, 281 (6th Cir. 2009); Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2006) (“Even if supported by substantial evidence, however, a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.”).

         Finally, a district court cannot uphold an ALJ's decision, even if there “is enough evidence in the record to support the decision, [where] the reasons given by the trier of fact do not build an accurate and logical bridge between the evidence and the result.” Fleischer v. Astrue, 774 F.Supp.2d 875, 877 (N.D. Ohio 2011) (quoting Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.1996); accord Shrader v. Astrue, 2012 WL 5383120 (E.D. Mich. Nov. 1, 2012) (“If relevant evidence is not mentioned, the Court cannot determine if it was discounted or merely overlooked.”); McHugh v. Astrue, 2011 WL 6130824 (S.D. Ohio Nov. 15, 2011); Gilliam v. Astrue, 2010 WL 2837260 (E.D. Tenn. July 19, 2010); Hook v. Astrue, 2010 WL 2929562 (N.D. Ohio July 9, 2010).

         VI. ANALYSIS

         Plaintiff raises two questions on appeal: First, whether substantial evidence supports the ALJ's determination that Plaintiff had “a limited education and is able to communicate in English”; and second, whether the ALJ erred by failing to consider whether Plaintiff's lack of English proficiency would have an impact on his ability to perform other work at Step Five. The Court addresses each question below.

         A. Whether the ALJ erred when determining that Plaintiff was able to communicate in English

         Plaintiff first argues that substantial evidence does not support the ALJ's determination that Plaintiff had “a limited education and is able to communicate in English. (Tr. 499). Plaintiff further suggests that the ALJ erred by failing to state any reasons for reaching this conclusion.

         Upon review of the administrative decision and the record as a whole, the Court concludes that the ALJ did not err and that substantial evidence supports his finding. While Plaintiff is correct that the ALJ did not articulate his reasons for reaching this conclusion, insofar as this was error, [3] the Court finds it was harmless, given the evidence described below. On June 28, 2011, Plaintiff appeared and testified before an ALJ without counsel and without an interpreter. On review of the transcript of this hearing, it is not evident that Plaintiff had any difficulty understanding or communicating with the ALJ. At the hearing Plaintiff testified that he was able to read and write in English “a little bit, ” but at no time during the proceedings did either Plaintiff or the ALJ indicate that oral communication was a problem. The following, typical passages from the hearing transcript establish that Plaintiff could both understand the ALJ's questions and communicate coherent and meaningful answers:

Q ...Do you have a driver's license?
A Not at this time.
Q No? Did you have a driver's license before?
A Yeah. It was suspended.
Q Why was it suspended?
A Because they stopped me one time for my birthday and I was drinking and ...

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