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MacKenzie v. Berryhill

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

January 31, 2018

LAURIE MACKENZIE, Plaintiff,
v.
NANCY BERRYHILL[1], COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          DONALD C. NUGENT JUDGE

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          GEORGE J. LIMBERT UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         For the following reasons, the undersigned recommends that the Court AFFIRM the ALJ's decision and DISMISS Plaintiff's complaint in its entirety WITH PREJUDICE.

         I. FACTUAL AND PROCEDURAL HISTORY

         On 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.[2] 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.

         On 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.

         II. ALJ'S DECISION

         In his 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.

         The ALJ 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.

         The ALJ 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.

         The ALJ 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.

         III. STEPS TO EVALUATE ENTITLEMENT TO SOCIAL SECURITY BENEFITS

         An ALJ must proceed through the required sequential steps for evaluating entitlement to social security benefits. These steps are:

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).

         IV. STANDARD OF REVIEW

         Under 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).

         The 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 omitted).

         V. RELEVANT MEDICAL EVIDENCE

         The 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.

         In 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.

         On 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.

         On 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. Id.

         Dr. 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. Id.

         On January 4, 2012, Plaintiff was diagnosed with DDD and she received a steroid injection at ¶ 4-L5. ECF Dkt. #11 at 264, 359.

         A September 11, 2012 CT scan of the abdomen showed scattered diverticula without evidence of ...


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