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Brauninger v. Commissioner of Social Security

United States District Court, S.D. Ohio, Western Division

November 3, 2017

LISA BRAUNINGER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Black, J.

          REPORT AND RECOMMENDATION

          Stephanie K. Bowman United States Magistrate Judge.

         Plaintiff 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.

         I. Summary of Administrative Record

         In 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.

         In 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, [1] 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).

         On 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.

         Plaintiff 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).

         Two 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.

         Plaintiff's 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).

         ALJ 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.

         (Tr. 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.

         In a 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.

         II. Analysis

         A. Judicial Standard of Review

         To be 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).

         When a 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 affirm.

Id. (citations omitted).

         In 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.

         A 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. § 423(d)(1)(A).

         B. Specific Errors

         1. Step 3 Error: Listing 1.04A

         Plaintiff first argues that, notwithstanding her greatly expanded analysis, [2] 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.

         Plaintiff 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.

         However, the ALJ concluded that Plaintiff's back impairment does not meet or equal Listing 1.04A, which requires Plaintiff to show ...


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