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Salyer v. Commissioner of Social Security

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

February 12, 2018


          Judge Algenon L. Marbley



         Plaintiff, Ruby Jean Salyer, who is proceeding without the assistance of counsel, brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for Period of Disability Insurance, Disability Insurance benefits and Supplemental Security income. This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 12), the Commissioner's Memorandum in Opposition (ECF No. 13), Plaintiff's Reply (ECF No. 14), and the administrative record (ECF No. 10). For the reasons that follow, it is RECOMMENDED that the Court OVERRULE Plaintiff's Statement of Errors and AFFIRM the Commissioner's decision.

         I. BACKGROUND[1]

         Plaintiff protectively filed her application for Period of Disability Insurance, Disability Insurance benefits, and a Title XVI application for Supplemental Security income on March 27, 2013. (R. at 18.) In both applications, Plaintiff alleged a disability onset date of March 27, 2013. Plaintiff's application was denied initially on September 27, 2013, and upon reconsideration on February 4, 2014. Plaintiff sought a review before an administrative law judge.

         Plaintiff had previously filed for Period of Disability Insurance, Disability Insurance benefits, and Supplemental Security Income on May 11, 2010. (R. at 18; 78-100.) Administrative Law Judge Christopher B. McNeil denied Plaintiff's claims on November 29, 2011, and his decision was affirmed by the Appeals Council on January 9, 2013. (Id.) However, Plaintiff submitted new and material evidence, thus the administrative law judge in the current review was not bound by the previous ALJ's decision. (See Id. at 18, citing Acquiescence Rulings 98-3(6) and 98-4(6).)

         In her most recent application for benefits, Administrative Law Judge John Robert Montgomery (the “ALJ”) held a hearing on August 28, 2015, at which Plaintiff, who was represented by counsel at that time, appeared and testified. (R. at 38-77.) Eric W. Pruitt, a vocational expert (“VE”), also appeared and testified at the hearing. On December 17, 2015, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (Id. at 18-32.) On January 3, 2017, the Appeals Council denied Plaintiff's request for review and affirmed the ALJ's decision. (Id. at 1-4.) Plaintiff then timely filed this action on January 30, 2017. (ECF No. 1.)

         In her Statement of Errors, Plaintiff raises numerous errors in the ALJ's decision. (ECF No. 12.) Plaintiff references specific pages in the record not mentioned by the ALJ and also attaches an annotated portion of the administrative record, highlighting what appears to be Plaintiff's evidence to support her challenges to the ALJ's opinion. (Id. at ECF No. 12-1.) Plaintiff's contentions of error are best be characterized as (1) challenging the ALJ's step-two findings and (2) challenging the ALJ's residual functional capacity (“RFC”)[2] assessment.

         In her Memorandum in Opposition, the Commissioner first argues that Plaintiff has not made any legally cognizable arguments. (ECF No. 13, at 4-5.) She next posits that regardless, substantial evidence supports both the ALJ's step-two analysis and his RFC determination. (Id. at 5-14.) The Commissioner also adds that substantial evidence supports the ALJ's credibility determination and that the ALJ properly relied upon the VE's testimony. (Id. at 14-16, 20.)

         In her Reply, Plaintiff responds to the Commissioner's briefing relating to her credibility, explaining that she did not seek injections for pain because she was scared of getting the shots and that she did inform the ALJ that she had cut back on cigarettes and had lost some weight. She also reiterates her medical conditions and various medications she is on for those conditions.


         The ALJ found that Plaintiff had not been under a disability within the meaning of the Social Security Act since March 27, 2013, the alleged disability onset date. At step one of the sequential evaluation process, [3] the ALJ found that Plaintiff met the insured status requirements of the Social Security Act through September 30, 2015, for her Period of Disability and Disability Insurance benefits claims. (R. at 21.) The ALJ also determined that Plaintiff had not engaged in substantial gainful activity since March 27, 2013. (Id.) At step two of the analysis, the ALJ found that Plaintiff had the following severe impairments: degenerative disc disease; rheumatoid arthritis; arthritis adhesive capsulitis; obesity; glaucoma; amplyopia; affective disorder; and anxiety disorder. (Id.) The ALJ concluded that several of Plaintiff's other medically determinable impairments, including fibromyalgia, high cholesterol, high blood pressure, and erythrocytosis, were not severe. (Id.) The ALJ next found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 22.)

         At step four of the sequential process, the ALJ set forth Plaintiff's RFC as follows:

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) except, the claimant can lift/carry no more than ten pounds, push/pull to the same extent in the lower right extremity and in the left upper extremity, with not more than frequent overhead reaching with the right upper extremity and no use of foot controls with the left foot. The claimant can stand/walk for 30 minutes out of four hours in an eight-hour workday and can sit for two hours out of six hours in an eight-hour workday. The claimant is unable to kneel, crawl, or use of ladders, ropes or scaffolds, but can occasionally balance, crouch, and climb ramps or stairs. Due to visual impairments, the claimant must avoid all exposure to unprotected heights, dangerous machinery, and commercial driving. Mentally, the claimant is limited to simple, routine tasks without fast pace or frequent changes, and with no more than occasional interaction with others.

(R. at 24-25.) In assessing Plaintiff's RFC, the ALJ discussed the record evidence and Plaintiff's testimony and ultimately concluded that Plaintiff's allegations were not credible.

         Relying on VE's testimony, the ALJ determined that although Plaintiff was not able to do her past relevant work, there were other jobs in significant numbers in the national economy that complied with Plaintiff's RCF limitations. (R. at 31.) The ALJ therefore concluded that Plaintiff was not disabled under the Social Security Act.


         When reviewing a case under the Social Security Act, the Court “must affirm the Commissioner's decision if it ‘is supported by substantial evidence and was made pursuant to proper legal standards.'” Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a ...

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