United States District Court, N.D. Ohio, Eastern Division
C. NUGENT JUDGE
REPORT AND RECOMMENDATION OF MAGISTRATE
J. LIMBERT UNITED STATES MAGISTRATE JUDGE
Laurie MacKenzie (“Plaintiff”) requests judicial
review of the final decision of the Commissioner of Social
Security Administration (“Defendant”) denying her
application for disability insurance benefits
(“DIB”). ECF Dkt. #1. In her brief on the merits,
filed on May 1, 2017, Plaintiff asserts that the
administrative law judge (“ALJ”) failed to:
properly weigh the opinion of her treating physician, Dr.
Rozman; properly weigh the opinion of examining physician Dr.
Cremer; and failed to provide a residual functional capacity
(“RFC”) that was supported by substantial
evidence. ECF Dkt. #13. On May 31, 2017, Defendant filed a
brief on the merits. ECF Dkt. #14. On June 14, 2017,
Plaintiff filed a reply brief. ECF Dkt. #15.
following reasons, the undersigned recommends that the Court
AFFIRM the ALJ's decision and DISMISS Plaintiff's
complaint in its entirety WITH PREJUDICE.
FACTUAL AND PROCEDURAL HISTORY
November 22, 2013, Plaintiff protectively filed an
application for DIB alleging disability beginning August 29,
2013 due to a bulging disc in her lower back, breast cancer
in remission, left breast mastectomy and reconstruction,
diverticulosis, digestive issues, intestinal issues,
hysterectomy, double hernia, hypertension, and depression..
ECF Dkt. #11 at 152, 186. Plaintiff's application was denied
initially and upon reconsideration. Id. at 104-115.
Following the denial of her application, Plaintiff requested
an administrative hearing, and on September 29, 2015, an ALJ
conducted the hearing and accepted the testimony of
Plaintiff, who was represented by counsel, and a vocational
expert (“VE”). Id. at 33, 121. On
October 20, 2015, the ALJ issued a decision denying
Plaintiff's application for DIB. Id. at 17-27.
Plaintiff requested a review of the hearing decision, and on
November 14, 2016, the Appeals Council denied review.
Id. at 1-7.
January 12, 2017, Plaintiff filed the instant suit seeking
review of the ALJ's decision. ECF Dkt. #1. Plaintiff
filed a brief on the merits on May 1, 2017. ECF Dkt. #13. On
May 31, 2017, Defendant filed a merits brief. ECF Dkt. #14.
Plaintiff filed a reply brief on June 14, 2017. ECF Dkt. #15.
decision, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since August 29, 2013, her
alleged onset date. ECF Dkt. #11 at 19.
found that Plaintiff had the severe impairments of lumbar
degenerative disc disease (“DDD”) with
radiculitis; diverticulosis; and obesity. ECF Dkt. #11 at 19.
He further found that these impairments, individually or in
combination, did not meet or equal any of the Listing of
Impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1
(“Listings”). Id. at 18-21.
thereafter determined that Plaintiff had the RFC to perform
sedentary work with the following limitations: an ability to
sit for five minutes every hour of standing or walking;
frequent stooping and balancing on uneven surfaces;
occasional kneeling, crouching and crawling and climbing of
ramps or stairs; never climbing ladders, ropes or scaffolds;
an environment that had only occasional vibration; and
working in a place in close proximity to a restroom, such as
you would find in an office setting where the workstation is
on the same floor as the bathroom. Id. at 22.
went on to find that based upon the RFC that he determined
for Plaintiff and the VE's testimony, Plaintiff could
perform her past relevant work as an inside sales manager and
marketing manager. ECF Dkt. #11 at 26-27. He therefore found
that Plaintiff was not under a disability as defined in the
Social Security Act from August 29, 2013, through the date of
his decision. Id. at 27.
STEPS TO EVALUATE ENTITLEMENT TO SOCIAL SECURITY
must proceed through the required sequential steps for
evaluating entitlement to social security benefits. These
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).
STANDARD OF REVIEW
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).
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). Substantial evidence is
defined as “more than a scintilla of evidence but less
than a preponderance.” Rogers v. Comm'r of Soc.
Sec., 486 F.3d 234 (6th Cir. 2007). Accordingly, when
substantial evidence supports the ALJ's denial of
benefits, that finding must be affirmed, even if a
preponderance of the evidence exists in the record upon which
the ALJ could have found plaintiff disabled. The substantial
evidence standard creates a “‘zone of choice'
within which [an ALJ] can act without the fear of court
interference.” Buxton v. Halter, 246 F.3d 762,
773 (6th Cir.2001). However, 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
RELEVANT MEDICAL EVIDENCE
undersigned summarizes only the evidence relevant to
Plaintiff's claims before the Court which are primarily
her lumbar DDD with radiculitis and diverticulosis. Medical
evidence concerning other impairments and conditions is
included only where relevant or for background information.
2008, Plaintiff underwent a left breast mastectomy and
reconstruction. ECF Dkt. #11 at 600-603. In 2008, 2009 and
2011, Plaintiff underwent operations for breast
reconstructions. Id. at 679-680, 701-702, 714-715.
August 9, 2011, Plaintiff's primary physician, Dr.
Rozman, referred her to Dr. Furey of University Hospital
Department of Orthopaedics for her six-month history of low
back pain. ECF Dkt. #11 at 495. Dr. Furey noted upon
examination that Plaintiff had a stable gait, and painless
motion of both hips with intact strength. Id. He
indicated that her x-rays showed no abnormalities in the
lumbar spine except preserved lordosis with very mild
degenerative changes at ¶ 5-S1. Id. He
diagnosed low back pain without radiculopathy and indicated
that she was not a candidate for surgery but could benefit
from a good exercise program. Id. at 496.
November 7, 2011, Plaintiff presented to Dr. McIntyre at
University Hospitals Pain Medicine Division for her low back
pain. ECF Dkt. #11 at 498. He noted that Plaintiff had no
precipitating event for the back pain and she indicated that
it was constant and made her feel unsteady on her feet
although she had no radiation to her legs. Id. She
reported that the pain was worse when she stood for long
periods of time or when she arose from a seated position.
McIntyre noted that Plaintiff's MRI results showed a
degenerated disc at the L5-S1 level and her physical
examination showed a stable gait, reduced range of motion in
the lumbar spine, and tenderness to palpation over the
paravertebral musculature in the lumbar area. ECF Dkt. #11 at
499. He diagnosed lumbar disc degeneration and lumbosacral
sponylosis. Id. He recommended physical therapy and
prescribed her Tramadol. Id. He also indicated that
Plaintiff was a candidate for epidural steroid injections.
January 4, 2012, Plaintiff was diagnosed with DDD and she
received a steroid injection at ¶ 4-L5. ECF Dkt. #11 at
September 11, 2012 CT scan of the abdomen showed scattered
diverticula without evidence of ...