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Booth v. Commissioner of Social Security

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

December 14, 2017

JEREMY BOOTH, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          BENITA Y. PEARSON JUDGE.

          REPORT & RECOMMENDATION

          WILLIAM H. BAUGHMAN, JR. UNITED STATES MAGISTRATE JUDGE.

         Introduction

         Before me by referral[1]is an action for judicial review of the final decision of the Commissioner of Social Security denying the applications of the plaintiff, Jeremy Booth, for disability insurance benefits and supplemental security income.[2] The Commissioner has answered[3] and filed the transcript of the administrative record.[4] Under my initial[5] and procedural[6] orders, the parties have briefed their positions[7] and filed supplemental charts[8] and the fact sheet.[9] They have participated in a telephonic oral argument.[10]

         Facts A.

         Background facts and decision of the Administrative Law Judge (“ALJ”)

         Booth who was 35 years old at the time of the administrative hearing, [11] is a high school graduate with one year of college.[12] He lives with his mother.[13] His past relevant employment history includes work as a carpenter and general laborer.[14]

         The Administrative Law Judge (“ALJ”), whose decision became the final decision of the Commissioner, found that Booth had severe impairments consisting of post left L5-S1 hemilaminectomry and discectomy, post-op changes with mild epidural granulation tissues without evidence of recurrent disc protrusion, mild to moderate bony foraminal narrowing at ¶ 5-S1, obesity and depression (20 CFR 404.1520(c) and 416.920(c)).[15] The ALJ made the following finding regarding Booth's residual functional capacity:

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a). The claimant can lift and carry 10 pounds occasionally and less that 10 pounds frequently, sit six hours in an eight hour workday and stand and walk two hours in an eight hour workday. He can push and pull the same as that for lift and carry. The claimant can occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl but never climb ladders or scaffolds. He must avoid unprotected heights, moving mechanical parts, and operating a motor vehicle. In addition, the claimant can have frequent exposure to humidity and wetness, extreme cold and heat, and vibration. Furthermore, he must be limited to performing simple, routine, and repetitive tasks, but not at a production rate pace (e.g., assembly line work) as well as limited to simple, work-related decisions.[16]

         Given that residual functional capacity, the ALJ found Booth incapable of performing his past relevant work as carpenter and general laborer.[17]

         Based on an answer to a hypothetical question posed to the vocational expert at the hearing setting forth the residual functional capacity finding quoted above, the ALJ determined that a significant number of jobs existed locally and nationally that Booth could perform.[18] The ALJ, therefore, found Booth not under a disability.[19]

         B. Issues on judicial review

         Booth asks for reversal of the Commissioner's decision on the ground that it does not have the support of substantial evidence in the administrative record. Specifically, Booth presents the following issue for judicial review:

• Whether the ALJ found that Mr. Booth retained the residual functional capacity for a range of sedentary work.[20]

         The Court recommends that the ALJ's finding of no disability is supported by substantial evidence and, therefore, must be affirmed.

         Analysis

         A. Applicable legal principles

         1. Substantial evidence

         The Sixth Circuit in Buxton v. Halter reemphasized the standard of review applicable to decisions of the ALJs in disability cases:

Congress has provided for federal court review of Social Security administrative decisions. 42 U.S.C. § 405(g). However, the scope of review is limited under 42 U.S.C. § 405(g): “The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive....” In other words, on review of the Commissioner's decision that claimant is not totally disabled within the meaning of the Social Security Act, the only issue reviewable by this court is whether the decision is supported by substantial evidence. Substantial evidence is “ ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' ”
The findings of the Commissioner are not subject to reversal merely because there exists in the record substantial evidence to support a different conclusion. This is so because there is a “zone of choice” within which the Commissioner can act, without the fear of court interference.[21]

         Viewed in the context of a jury trial, all that is necessary to affirm is that reasonable minds could reach different conclusions on the evidence. If such is the case, the Commissioner survives “a directed verdict” and wins.[22] The court may not disturb the Commissioner's findings, even if the preponderance of the evidence favors the claimant.[23]

         I will review the findings of the ALJ at issue here consistent with that deferential standard.

         2. Credibility

         As the Social Security Administration has recognized in a policy interpretation ruling on assessing claimant credibility, [24] in the absence of objective medical evidence sufficient to support a finding of disability, the claimant's statements about the severity of his or her symptoms or limitations will be considered with other relevant evidence in deciding disability:

Because symptoms, such as pain, sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone, the adjudicator must carefully consider the individual's statements about symptoms with the rest of the relevant evidence in the case record in reaching a conclusion about the credibility of the individual's statements if a disability determination or decision that is fully favorable to the individual cannot be made solely on the basis of objective medical evidence.[25]

         The regulations also make the same point.

We must always attempt to obtain objective medical evidence and, when it is obtained, we will consider it in reaching a conclusion as to whether you are disabled. However, we will not reject your statements about the intensity and persistence of your pain or other symptoms or about the effect your symptoms have on your ability to work ... solely because the available objective medical evidence does not substantiate your statements.[26]

         Under the analytical scheme created by the Social Security regulations for determining disability, objective medical evidence constitutes the best evidence for gauging a claimant's residual functional capacity and the work-related limitations dictated thereby.[27]

         As a practical matter, in the assessment of credibility, the weight of the objective medical evidence remains an important consideration. The regulation expressly provides that “other evidence” of symptoms causing work-related limitations can be considered if “consistent with the objective medical evidence.”[28] Where the objective medical evidence does not support a finding of disability, at least an informal presumption of “no disability” arises that must be overcome by such other evidence as the claimant might offer to support his claim.

         The regulations set forth factors that the ALJ should consider in assessing credibility. These include the claimant's daily activities; the location, duration, frequency, and intensity of the pain; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of medication; and treatment or measures, other than medication, taken to relieve pain.[29]

         The specific factors identified by the regulation as relevant to evaluating subjective complaints of pain are intended to uncover a degree of severity of the underlying impairment not susceptible to proof by objective medical evidence. When a claimant presents credible evidence of these factors, such proof may justify the imposition of work-related limitations beyond those dictated by the objective medical evidence.

         The discretion afforded by the courts to the ALJ's evaluation of such evidence is extremely broad. The ALJ's findings as to credibility are entitled to deference because he has the opportunity to observe the claimant and assess his subjective complaints.[30] A court may not disturb the ALJ's credibility determination absent compelling reason.[31]

         B. Recommendation

         This matter is essentially a challenge to the ALJ's finding that Booth was not fully credible as to his complaints of disabling pain.[32] The ALJ recognized that Booth underwent lumbar spine surgery in July 2014, or about six months after initially complaining of back pain, but then concluded that his post-surgical treatment had been conservative, mostly consisting of only prescribed pain medication and an exercise plan.[33]

         For his part, Booth argues that in addition to his own consistent statements of disabling pain, [34] which he maintains grew worse subsequent to his surgery, [35] his assertions of pain were supported by the 2016 functional opinion of Dr. Avi Marocco, M.D., his primary care physician.[36] That opinion stated that Booth's severe pain would interfere with his concentration and ability to stay on task, requiring Booth to take six to seven hours of additional rest breaks during an eight-hour work day.[37] Booth further contends that his complaints of pain ...


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