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Morgan v. Commissioner of Social Security

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

February 14, 2018


          Black, J. .


          Stephanie K. Bowman United States Magistrate Judge.

         Plaintiff Sara Morgan filed this Social Security appeal in order to challenge the Defendant's finding that she is not disabled. See 42 U.S.C. §405(g). Proceeding through counsel, Plaintiff presents three claims of error for this Court's review.[1] 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 April 2011, Plaintiff filed an application for Disability Insurance Benefits (“DIB”), alleging disability beginning August 28, 2008, [2] based upon a combination of physical and mental impairments. In this appeal, Plaintiff asserts that she simultaneously filed an application for Supplemental Security Income (“SSI”). As explained below, the record does not support that assertion.

         After her DIB claim was denied initially and upon reconsideration, Plaintiff requested an evidentiary hearing before an administrative law judge (“ALJ”). On January 7, 2013, Plaintiff appeared with counsel and gave testimony before ALJ Gilbert Sheard. During the hearing, both a medical expert and a vocational expert also testified. (Tr. 47-107). On March 18, 2013, ALJ Sheard issued an adverse written decision, concluding that Plaintiff was not disabled. (Tr. 204-221). However, on appeal, the Appeals Council vacated ALJ Sheard's decision after finding that he had not correctly utilized the testimony of the medical expert (“ME”), but instead had questioned the ME in a manner that “suggested specific conclusions and was in [legal] error.” (Tr. 230). Specifically, ALJ Sheard erred by asking the ME to determine the claimant's residual functional capacity (“RFC”) rather than making that determination himself as required by controlling regulations. (Tr. 231). ALJ Sheard also erred when he asked whether the claimant “would like to settle with the government for a closed period [of disability] dated July 31, 2010 and ending August 1, 2012, ” suggesting that a “settlement does not have to be rational much less supported.” (Tr. 79). As the Appeals Council held, “[s]uch statements are inappropriate because any finding that pertains to the ultimate question of a claimant's disability must be based on the Administration's regulations, policies, and substantial evidence, not on a settlement or negotiation.” (Tr. 231).

         The Appeals Council remanded the matter to a new ALJ to conduct a new hearing, to obtain new medical expert testimony “if necessary, ” and to obtain “supplemental evidence from a vocational expert” that would include hypothetical questions that reflected an RFC as determined by the new ALJ, based upon the record as a whole. (Tr. 231). Two years after ALJ Sheard's decision, on March 12, 2015, ALJ Kristen King conducted that second evidentiary hearing, at which Plaintiff again appeared with her attorney and gave testimony. A vocational expert also testified, but no additional consultative examinations were conducted, nor was new medical expert testimony received. On October 28, 2015, ALJ King filed a written decision that again concluded that Plaintiff was not disabled. (Tr. 17-34).

         In her 2015 decision, the ALJ found that Plaintiff was 38 years old, and still a “younger individual age 18-44” on the date that she was last insured, which was September 30, 2013. (Tr. 20, 32). The ALJ determined that Plaintiff has the following severe impairments: “Depression, bipolar disorder, posttraumatic stress disorder (PTSD), intermittent explosive disorder, borderline intellectual functioning, obesity, diabetes, osteoarthritis, and hernia.” (Tr. 20). However, none of these impairments met or medically equaled the severity of a listed impairment in 20 C.F.R. Part 404, Subpt. P, Appx. 1. (Id.).

         Plaintiff has a high school education and lives with her two children. The ALJ determined that Plaintiff retained the residual functional capacity (“RFC”) to perform a restricted range of sedentary work, subject to the following limitations:

She can never crawl or climb ladders, ropes, or scaffolds; she can occasionally balance, stoop, kneel, crouch, or climb ramps or stairs; and she must avoid all use of dangerous machinery including no commercial driving and all exposure to unprotected heights. She is limited to occupations that require only occasional verbal communication or occasional telephone communication. She is limited to simple, routine, and predictable tasks. She can perform goal-oriented work, but no constant production rate pace work such as an automated assembly line. She can interact with the public no more than approximately 10% of the workday, but no transactional interaction such as sales or negotiations. She can only occasionally interact with coworkers and supervisors, but with no tandem tasks. She cannot work in situations where she needs to resolve conflict or maintain a friendly or persuasive demeanor. She is limited to work with no strict time limits or production standards.

(Tr. 23). In making these findings, ALJ King rejected Plaintiff's contentions that she was disabled based upon various physical impairments, including fibromyalgia (which the ALJ did not find to be a severe impairment), and/or that Plaintiff met listing level severity based on her limited intellectual functioning.

         Considering Plaintiff's age, education, work experience and RFC, and based on testimony from the vocational expert, the ALJ determined that Plaintiff could still perform a significant number of jobs in the national economy, including the representative jobs of clerk, assembler, inspector, and packer during the alleged disability period. (Tr. 33). Therefore, the ALJ determined that Plaintiff was not under a disability prior to September 30, 2013. Plaintiff again sought further review from the Appeals Council, but this time, the Appeals Council denied further review. Therefore, ALJ King's decision remains as the final decision of the Commissioner.

         In her appeal to this Court, Plaintiff argues that the ALJ erred: (1) in failing to issue any ruling at all on Plaintiff's SSI application or making a determination of disability after Plaintiff's date last insured (“DLI”); (2) in failing to fully correct the errors made by ALJ Sheard, and improperly evaluating medical opinion evidence at Steps 4 and 5 of the sequential analysis;[3] and (3) in failing to recognize migraines and Plaintiff's panic attacks as “severe” impairments at Step 2 of the sequential analysis. The undersigned finds no reversible error.

         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 her unable to perform any job. 42 U.S.C. § 423(d)(1)(A).

         B. Relevant Testimony By Plaintiff

         Prior to turning to the three claims that Plaintiff presents to this Court, the undersigned notes that Plaintiff does not challenge the adverse credibility finding made by the ALJ. (See Tr. 24-27). The issue is generally relevant to the analysis of the record as a whole.[4] It is also relevant because Plaintiff's brief to this Court emphasizes Plaintiff's history of low earnings and part-time work as proof that she is incapable of full-time employment. (See generally, Doc. 12 at 5-6, recounting Plaintiff's “long history of mental illness and treatment” and low earnings from 1992 through 2008).

         In contrast to her argument in this Court, Plaintiff testified that she only looked for part-time work not due to any disability, but “because I still had my boy at home and my daughter and so I didn't want to be away from home from them for a 40 hour week.” (Tr. 60). When Plaintiff's counsel asked her if she could have worked full-time in 2009 if she had a job “where you didn't have to lift much, ” Plaintiff clearly responded “Yeah.” (Tr. 62). Her attorney asked again whether she could work full-time if lifting were not an issue, if she considered not only physical limitations ”but your mental problems too.” (Id.) Again, Plaintiff responded “yeah, I think I could.” (Tr. 63). Counsel persisted, asking if she thought she'd have “any problems with your mental conditions working a full time job?” (Id.) In response to this final clarifying question from counsel, Plaintiff responded that she could work full-time “[a]s long as I get home before dark.” (Id.) Later in the same hearing, she testified that her paranoia symptoms would not affect her working a day job, except that she would not want to work in the same room as other people. (Tr. 85). When counsel asked Plaintiff when her symptoms of paranoia after dark began, she responded since “November of last year [2012].” (Tr. 64).

         The second hearing occurred long after the expiration of Plaintiff's insured status. At that hearing, counsel described a hypothetical “easy eight-hour a day job, you know when you could sit or stand whenever you want to….would that be a problem for you - the drowsiness, the fatigue, if you -“ Plaintiff responded “No, it [a diabetes medication] just makes me slow and twice a day I'm tired.” (Tr.135, emphasis added). It is true that Plaintiff testified that other symptoms would be work preclusive, explaining that she fell asleep and that her back hurt her when she attempted to help her sister at work for 8 hours in October 2014. (See e.g., Tr. 136-137). However, that date was more than a year after Plaintiff's DLI, and ALJ King stressed that most of Plaintiff's testimony “focused on her current state and not her issues prior to the date last insured.” (Tr. 27). Aside from general arguments that her own discredited testimony supports her claim, Plaintiff advocates for reversal based upon three claims of legal error. The first claim is not cognizable in this proceeding.

         C. Plaintiff's Claims of Error

         1. Plaintiff's Lack of Any Prior Relevant SSI application

         The record before this Court reflects that Plaintiff timely appealed the denial of her April 2011 DIB application, but does not reflect any “concurrent” SSI application. Based on the documents in the administrative record, the undersigned recognizes a valid appeal of ALJ King's October 2015 written decision, which determined that Plaintiff was not under a disability prior to the expiration of her insured DIB status in September 2013.

         Plaintiff's first claim of error does not concern the referenced denial of Plaintiff's DIB claim, but instead is based upon a new assertion that the ALJ failed to consider whether Plaintiff was disabled for purposes of SSI, after the expiration of her DIB insured status. The issue is a critical one because there is evidence that Plaintiff's mental impairment worsened after the expiration of her insured status in September 2013, and many of the records that Plaintiff relies upon relate to that post-insured period. Plaintiff concedes that her insured status expired on September 30, 2013. Therefore, unless the current judicial appeal also concerns an SSI application, Plaintiff was required to prove that she became disabled prior to September 30, 2013.

         I conclude that Plaintiff cannot appeal the alleged failure to consider SSI disability because (1) there is no evidence that Plaintiff filed an SSI application in 2011, at the time that she filed her DIB application, such that the ALJ's decision involved (or should have addressed) the denial of both claims; and (2) the limited evidence in the administrative record suggests that the only prior SSI applications that Plaintiff filed were denied in 2010 and not appealed.

         Plaintiff points to scant evidence in the record implying the existence of a simultaneous SSI application, including a generic statement on her electronic DIB application that indicates “I have filed or intend to file for SSI.” (Tr. 385). However, the same internet application states “No previous application has been filed…by or for me.” (Id.)

         Two other forms relating to the initial processing and denial of her DIB claim contain very brief references to a prior SSI application. A July 28, 2011 initial denial of her DIB claim explains that if she has applied for other benefits, she will receive “a separate notice when a decision is made on that claim.” (Tr. 242). After stating the determination that she remains capable of work for DIB purposes, the form adds this statement: “The application you filed for SSI was also a claim for Social Security benefits. We looked into whether you qualify for Social Security and found that you do not. If you disagree, you have the right to appeal.” (Tr. 242). In addition, a January 12, 2012 form from the same DIB initial processing includes this cursory ...

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