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Pursley v. Commissioner of Social Security

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

June 20, 2019

KRISSIE PURSLEY, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Black, J.

          REPORT AND RECOMMENDATION

          STEPHANIE K. BOWMAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff Krissie Pursley 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 asserts three claims of error. As explained below, I conclude that the ALJ's decision should be AFFIRMED, because it is supported by substantial evidence in the record as a whole.

         I. Summary of Administrative Record

         Plaintiff has twice sought social security benefits. Plaintiff first filed applications for disability insurance benefits (“DIB”) and for supplemental security income (“SSI”) in July 2010, alleging the onset of disability beginning on June 1, 2010. Plaintiff's first claims were denied both initially and upon reconsideration, as well as in a subsequent decision by Administrative Law Judge (“ALJ”) George Gaffaney on May 12, 2012. (Tr. 95-100). In his decision, ALJ Gaffaney determined that Plaintiff had only one “severe” impairment, degenerative disc disease of the cervical spine, plus two non-severe impairments of a thyroid condition and allergies. (Tr. 97). Plaintiff did not appeal or seek further judicial review of ALJ Gaffaney's adverse decision.

         In November 2013, Plaintiff filed new DIB and SSI applications based upon allegations of neck problems, arthritis in her neck and hands, a possible goiter, and depression. (Tr. 105). Plaintiff initially again alleged a disability onset date in June 2010, using the date of June 30 rather than June 1 as she had previously. (Id.) Plaintiff's 2013 applications also were denied initially and upon reconsideration, following which she sought an evidentiary hearing. On March 22, 2016, Plaintiff appeared with counsel, and gave testimony before ALJ Lawrence E. Blatnik; a vocational expert also testified.

         Plaintiff was 40 years old on her alleged disability onset date, and was within the same age category, at 46 years old, on the date of ALJ's May 25, 2016 decision. (Tr. 6). She has a limited education, having left school after the eighth grade in order to work. (Tr. 59). She is divorced, and testified she lives with her father, who is retired. (Tr. 58). Plaintiff testified that she became disabled after a work accident that occurred when she was lifting dishes in a restaurant. (Tr. 71-72).

         On May 25, 2016, ALJ Blatnik issued a second adverse written decision. (Tr. 13-25). The ALJ determined that Plaintiff has severe impairments of: “degenerative disc disease of the cervical and lumbar spine; headaches; and depressive and anxiety disorders.” (Tr. 15). The Appeals Council found the same impairments in a subsequent decision.[1] (Tr. 6). Plaintiff does not dispute the determination that none of her impairments, either alone or in combination, met or medically equaled any Listing in 20 C.F.R. Part 404, Subpart P, Appendix 1, such that Plaintiff would be entitled to a presumption of disability.

         Both the ALJ and the Appeals Council determined that Plaintiff cannot perform her past relevant work as a dishwasher, stock clerk, or cashier, but nevertheless found that she retains the residual functional capacity (“RFC”) to perform a restricted range of sedentary work, subject to the following limitations:

She can lift, carry, push and pull ten pounds occasionally and less than ten pounds frequently; she can sit for six hours, and stand and walk for two hours, in an eight-hour workday; but she requires an option to change positions from sitting to standing, and standing or walking to sitting every 20 to 30 minutes for three to five minutes at a time. She can frequently handle and finger with either hand; occasionally climb ladders and scaffolds; must avoid all exposure to unprotected heights or moving mechanical parts; and can occasionally twist or turn her neck. She can perform simple, routine and repetitive tasks.

(Tr. 20; see also Tr. 6). Considering Plaintiff's age, education, 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 assembler, sorter /packer of small products, and information clerk. (Tr. 24). Therefore, the ALJ determined that Plaintiff was not under a disability.

         On November 1, 2017, the Appeals Council granted Plaintiff's request for further review based upon a clear error made by the ALJ in this case concerning his failure to review or discuss the opinion of a treating physician. Rather than remanding so that the ALJ could correct that error, the Appeals Council proposed to issue a new decision concluding that Plaintiff was not disabled. (Tr. 4). After allowing Plaintiff time to submit an additional statement or evidence, and receiving none, the Appeals Council issued a final adverse decision on March 5, 2018. (Tr. 1-7).

         As stated, the Appeals Council found error in the ALJ's failure to address the medical opinion of a treating physician, Sabir Quraishi, M.D. (Tr. 5). Because the medical criteria for evaluating the severity of mental disorders had been revised while Plaintiff's appeal remained pending, the Appeals Council also issued new findings on the severity of her depressive and anxiety disorders. (Tr. 6). However, even considering Dr. Quraishi's opinion and the newly-revised criteria for evaluating mental disorders, the Appeals Council largely adopted and restated the ALJ's findings. (Id.) Thus, the Appeals Council concluded that Plaintiff was not under a disability through May 25, 2016, the date of the ALJ's decision.

         Despite the fact that the Appeals Council and not the ALJ issued the final decision of the Commissioner in this case, Plaintiff's Statement of Errors focuses exclusively on the ALJ's decision. Plaintiff seeks remand based on the following three errors: (1) the ALJ's failure to give controlling weight to the opinion of Dr. Quraishi; (2) the ALJ's failure to employ a medical expert; (3) the ALJ's failure to include additional limitations in his hypothetical question to the vocational expert. In her reply memorandum, Plaintiff attempts to reframe the same errors in the context of the Appeal Council's decision. For the following reasons, 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. Plaintiff's Claims of Error

         1. Plaintiff's Treating Physician, Sabir Quraishi, M.D.

         Plaintiff's first claim of error seeks remand on grounds that the ALJ erred in failing to give controlling weight to the opinions of her treating primary care physician. The relevant regulation concerning the opinions of treating physicians, 20 C.F.R. § 404.1527(c)(2), provides: “[i]f we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight.” Id.; see alsoWarner v. Com'r of Soc. Sec.,375 F.3d 387, 390 (6th Cir.2004). The treating physician rule[2] requires “the ALJ to generally ...


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