United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
Stephanie K. Bowman United States Magistrate Judge.
Lisa Brauninger filed this Social Security appeal in order to
challenge, for the second time in this Court, the
Defendant's finding that she is not disabled.
See 42 U.S.C. §405(g). Plaintiff presents two
closely related claims of error for review. As explained
below, I conclude that the ALJ's finding of
non-disability should be AFFIRMED, because it is supported by
substantial evidence in the record as a whole.
Summary of Administrative Record
August 2011, Plaintiff filed concurrent applications for
supplemental security income (“SSI”) and for
Disability Insurance Benefits (“DIB”), alleging
disability based on severe low back pain and depression, with
a disability onset date of September 30, 2008. After her
applications were denied initially and upon reconsideration,
Plaintiff requested an evidentiary hearing before an
administrative law judge (“ALJ”). On January 8,
2013, ALJ John Pope conducted a hearing by videoconference at
which Plaintiff appeared, together with the same attorney who
continues to represent her in this Court. (Tr. 39-132).
Following the hearing, the ALJ issued a written decision in
which he concluded that, despite her severe impairments of
lumbar degenerative disc disease and major depressive
disorder, Plaintiff could continue to perform the demands of
a limited range of light work. (Tr. 16-32). Plaintiff filed a
judicial appeal in this Court.
response to Plaintiff's Statement of Errors, the
Commissioner moved to remand the case for further
proceedings, conceding that ALJ Pope's decision contained
inconsistencies and failed to adequately explain why
Plaintiff's spine impairment did not meet or medically
equal Listing 1.04, entitling her to benefits. (See
Case No. 1:13-cv-388). Defendant requested that the matter
“be remanded…with instructions to conduct a new
hearing, re-evaluate the evidence regarding plaintiff's
musculoskeletal impairment, and consider evidence of
plaintiff's possible prescription drug abuse and
non-compliance with prescribed treatment.” (Tr.
1046-1047). Plaintiff vigorously opposed remand, arguing that
the Court should instead make an outright award of benefits.
However, this Court agreed with the Commissioner that remand
for further fact-finding was required,  because
“even if plaintiff were found to be disabled based on
the instant record, the Commissioner would still have to
consider the effect of plaintiff's drug abuse and
non-compliance with prescribed treatment” to determine
whether the drug abuse was a “contributing factor
material to [the] disability finding, ” and/or whether
following prescribed treatment could restore Plaintiff's
ability to work. (Tr. 1047-1048).
remand, the case was re-assigned to a new ALJ. ALJ Motta held
an evidentiary hearing on January 12, 2015 (Tr. 870-930), and
conducted a supplemental hearing on July 8, 2015. (Tr.
831-868). Plaintiff appeared at both hearings, and testified
at the first.
testified that she suffered an initial back injury as a
result of a work-related automobile accident in 2002, for
which she received workers' compensation benefits. She
continued to work until September 2008, when she alleges her
disability began. Plaintiff has a Bachelor's degree but
her employment history reflects only a “long series of
very short-term jobs….going back to 2000, ” with
no longer term work. (Tr. 880). When questioned about that
relatively weak employment history, Plaintiff explained that
she juggled short-term unskilled jobs for personal reasons,
due to the illness and eventual death of a fiancé in
2002, followed by the illness of her mother. After her
fiancé's death, Plaintiff became her mother's
main caregiver, until her mother's death in August 2010.
(Tr. 880-881). Over time, she took care of virtually all of
her mother's physical needs, including bathing, as her
mother lived in a duplex and did not have a nurse's aide
to assist with those needs other than “once in a
while.” (Tr. 908).
different Medical Experts testified at the January and July
hearings, while Vocational Expert Eric Pruitt provided
testimony at both hearings. On September 22, 2015, ALJ Motta
issued a written decision, again denying Plaintiff's
claims. (Tr. 795-821). The Appeals Council denied
Plaintiff's request for review, leaving the September
2015 decision as the final decision of the Commissioner.
DIB insured status expired on March 31, 2014, when Plaintiff
was 47 years old; she was 48 at the time of the ALJ's
last decision. (Tr. 799). Her employment history includes no
past relevant work or transferable work skills. (Tr. 819).
Plaintiff testified that she had “[n]ot yet”
completed any graduate work but was “considering”
going to law school. (Tr. 877).
Motta added to the list of severe impairments found by ALJ
Pope, finding that Plaintiff has “lumbar spine
degenerative disc disease, mild obesity, cervical spine
degenerative disc disease, major depression, [and a] history
of substance abuse.” (Tr. 800). However, she determined
that Plaintiff's impairments did not meet or medically
equal any Listing in 20 C.F.R. Part 404, Subpart P, Appendix
1, specifically rejecting Plaintiff's contention that she
meets or equals Listing 1.04. (Tr. 808-811). Rather than the
“light” RFC found by ALJ Pope, ALJ Motta found
that Plaintiff retained the residual functional capacity
(“RFC”) to perform work at a sedentary level,
with the following restrictions:
lifting no more than ten pounds occasionally and less than
ten pounds frequently; standing and walking no more than a
combined total of two hours during an eight-hour workday;
sitting up to six hours during an eight -hour workday; the
opportunity to alternate between sitting and standing as much
as five minutes per hour (while remaining “on
task”); no climbing ladders, ropes, scaffolds; no
exposure to hazards such as dangerous machinery or
unprotected heights; no exposure to vibration; no walking on
uneven terrain; postural activities (i.e., climbing ramps or
stairs, balancing stooping, crouching, kneeling, crawling,
twisting side to side) can be done no more than occasionally;
reaching with the upper extremities (in all directions) can
be done no more than frequently; only occasional use of left
foot controls; only simple repetitive tasks of a low-stress
nature (i.e., no production quotas or fast-pace and only
routine work with few changes in the work setting); no
contact with the public; no more than occasional contact with
co-workers and supervisors.
811). Based upon these limitations and testimony from the
Vocational Expert, the ALJ found Plaintiff could perform more
than 300, 000 unskilled jobs that exist in the national
economy, including the representative occupations of
laminator, gauger, and film touch-up inspector. (Tr. 820).
Therefore, the ALJ concluded that Plaintiff is not under a
disability. The Appeals Council denied review, leading
Plaintiff to file this second judicial appeal.
32-page Statement of Errors, Plaintiff argues that the ALJ
erred by: (1) failing to find that she met or equaled Listing
1.04A, and (2) improperly weighing the medical opinion
evidence concerning her back impairment.
Judicial Standard of Review
eligible for benefits, a claimant must be under a
“disability.” See 42 U.S.C.
§1382c(a). Narrowed to its statutory meaning, a
“disability” includes only physical or mental
impairments that are both “medically
determinable” and severe enough to prevent the
applicant from (1) performing his or her past job and (2)
engaging in “substantial gainful activity” that
is available in the regional or national economies. See
Bowen v. City of New York, 476 U.S. 467, 469-70 (1986).
court is asked to review the Commissioner's denial of
benefits, the court's first inquiry is to determine
whether the ALJ's non-disability finding is supported by
substantial evidence. 42 U.S.C. § 405(g). Substantial
evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971)
(additional citation and internal quotation omitted). In
conducting this review, the court should consider the record
as a whole. Hephner v. Mathews, 574 F.2d 359, 362
(6th Cir. 1978). If substantial evidence supports the
ALJ's denial of benefits, then that finding must be
affirmed, even if substantial evidence also exists in the
record to support a finding of disability. Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). As the Sixth
Circuit has explained:
The Secretary's findings are not subject to reversal
merely because substantial evidence exists in the record to
support a different conclusion.... The substantial evidence
standard presupposes that there is a ‘zone of
choice' within which the Secretary may proceed without
interference from the courts. If the Secretary's decision
is supported by substantial evidence, a reviewing court must
Id. (citations omitted).
considering an application for supplemental security income
or for disability benefits, the Social Security Agency is
guided by the following sequential benefits analysis: at Step
1, the Commissioner asks if the claimant is still performing
substantial gainful activity; at Step 2, the Commissioner
determines if one or more of the claimant's impairments
are “severe;” at Step 3, the Commissioner
analyzes whether the claimant's impairments, singly or in
combination, meet or equal a Listing in the Listing of
Impairments; at Step 4, the Commissioner determines whether
or not the claimant can still perform his or her past
relevant work; and finally, at Step 5, if it is established
that claimant can no longer perform his or her past relevant
work, the burden of proof shifts to the agency to determine
whether a significant number of other jobs which the claimant
can perform exist in the national economy. See Combs v.
Commissioner of Soc. Sec., 459 F.3d 640, 643 (6th Cir.
2006); 20 C.F.R. §§404.1520, 416.920.
plaintiff bears the ultimate burden to prove by sufficient
evidence that she is entitled to disability benefits. 20
C.F.R. § 404.1512(a). A claimant seeking benefits must
present sufficient evidence to show that, during the relevant
time period, she suffered an impairment, or combination of
impairments, expected to last at least twelve months, that
left him unable to perform any job. 42 U.S.C. §
Step 3 Error: Listing 1.04A
first argues that, notwithstanding her greatly expanded
analysis,  ALJ Motta repeated the errors of ALJ Pope
by failing to conclude that Plaintiff's back condition
meets or equals Listing 1.04A. I find no error.
bears the burden of proof to demonstrate that she meets every
component of a Listing. See Her v. Com'r of Soc.
Sec., 203 F.3d 388, 391 (6th Cir. 1999). Listing 1.04
applies to disorders of the spine that compromise the nerve
root or spinal cord. Plaintiff has been diagnosed with both
lumbar and cervical spine degenerative disc disease, with
compromise of the “L5 and/or S1 nerve roots
bilaterally” confirmed by both an October 2011 MRI and
February 2012 EMG studies. (Tr. 800, citing Tr. 653; see
also Tr. 624). More recently, a May 2014 MRI study of
Plaintiff's cervical spine found additional degenerative
changes with involvement of the C6 nerve root. (Tr. 1312).
The Commissioner does not dispute that Plaintiff has
satisfied the introductory criteria of Listing 1.04 for both
her lumbar spine and cervical spine, with
“compromise” of the nerve root or spinal cord.
the ALJ concluded that Plaintiff's back impairment does
not meet or equal Listing 1.04A, which requires Plaintiff to