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Betts v. Commissioner of Social Security

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

July 17, 2019

TONIA RAE BETTS, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Dlott, J.

          REPORT AND RECOMMENDATION

          Stephanie K. Bowman, United States Magistrate Judge.

         Plaintiff Tonia Rae Betts 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 as to the Commissioner's adverse DIB decision, but REVERSED AND REMANDED for further development of the record concerning Plaintiff's separate application for SSI.

         I. Summary of Administrative Record

         On October 24, 2014, Plaintiff filed applications seeking both disability insurance benefits (“DIB”) and supplemental security income (“SSI”). Plaintiff's date last insured (“DLI”) was June 30, 2012, meaning that she is required to show disability prior to that date in order to receive DIB benefits. In both her DIB and SSI applications, Plaintiff alleged a disability onset date of April 13, 2009 based upon back pain, depression, Bipolar disorder, fibromyalgia, sleep apnea, high blood pressure, and anxiety.[1] (Tr. 72).[2]Plaintiff's applications were denied initially and upon reconsideration, following which she sought an evidentiary hearing. On May 26, 2017, Plaintiff appeared, through counsel, and gave testimony before Administrative Law Judge (“ALJ”) Christopher Tindale; a vocational expert also testified. (Tr. 38-71). At the hearing, in addition to the multiple ailments listed in her applications, Plaintiff testified to knee pain and carpal tunnel syndrome in both wrists.

         Plaintiff was 34 years old on her alleged disability onset date, and remained in the same “younger individual” age category through the date of the ALJ's decision. She has a high school education and testified in 2017 that she currently lives in an apartment with stairs by herself, but that one of her sons, age 22, stays with her part-time to assist her.[3](Tr. 47). She testified to past relevant work as a freight manager, a retail assistant manager, and as a front-end manager. (Tr. 66-67).

         On December 27, 2017, the ALJ issued an adverse written decision, concluding that Plaintiff is not disabled. (Tr. 18-30). The ALJ determined that Plaintiff has severe impairments of: “knee arthropathy, disorders of the spine, hyperlipidemia, asthma, migraines, obesity, mood disorder and anxiety disorder.” (Tr. 21). The ALJ found Plaintiff's alleged impairments of obstructive sleep apnea and gastroesophageal reflux disease to be non-severe, and found her alleged fibromyalgia to be a “non-medically determinable impairment” of fibromyalgia. (Id.) Plaintiff does not dispute the ALJ's determination of which impairments were severe or non-severe, nor does she challenge his 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. (Id.)

         The ALJ agreed that Plaintiff cannot perform her past relevant work, all of which was considered “skilled, ” but nevertheless found that she retains the residual functional capacity (“RFC”) to perform a restricted range of unskilled light work, subject to the following limitations:

[S]he can occasionally climb ramps and stairs, but never climb ladders, ropes, or scaffolds. She can frequently balance, but only occasionally stoop, kneel, crouch, crawl. She can frequently handle and finger. She must avoid concentrated exposure to pulmonary irritants, such as fumes, odors, dusts, gases, and poor ventilation. She is limited to simple, routine tasks consistent with unskilled work in a work environment free of fast production rate or pace work. She can have no contact with the public, occasional contact with supervisors, and only occasional and superficial contact with co-workers, with superficial contact defined as no tandem tasks. She must work in a low stress environment, defined as having only occasional changes in the work setting and only occasional decision making required.

(Tr. 24). 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 router, label coder, and collator operator. (Tr. 31). Therefore, the ALJ determined that Plaintiff was not under a disability. The Appeals Council denied further review, leaving the ALJ's decision as the final decision of the Commissioner.

         In her appeal to this Court, Plaintiff argues that the ALJ erred in his evaluation of the medical opinion evidence as well as in his evaluation of Plaintiff's subjective symptoms. Based upon the first two errors, Plaintiff's third assertion of error maintains that the hypothetical question posed to the vocational expert did not account for all of her limitations, and therefore does not constitute substantial evidence to support the non-disability determination.

         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

         1. Contextual Review Applied to Two Timeframes

         In her first claim, Plaintiff argues that the ALJ erred by failing to give controlling weight to the opinions of two treating physicians (a pain doctor and a psychiatrist) and by instead assigning greater weight to the opinions of consulting physicians. Notably, both of the treating-physician opinions on which Plaintiff relies were rendered after her DLI. Plaintiff's second claim is that the ALJ erred in evaluating her subjective pain complaints. In her third claim, Plaintiff asserts that the first two errors led to improper formulation of her residual functional capacity, such that the vocational expert's testimony does not provide substantial evidence to support the non-disability finding.

         The record presented reflects some error in the ALJ's analysis of the medical opinion evidence and of portions of the record. However, close review suggests that any reversible error was limited to the ALJ's review of evidence that post-dated Plaintiff's DLI of June 30, 2012. Although neither the parties in this appeal, nor the ALJ in his decision, have differentiated between the medical evidence prior to June 30, 2012, versus post-DLI evidence that would be relevant only to her SSI claim, the undersigned concludes that distinction is warranted on appeal.

         This Court will not remand where remand would amount to a “useless formality.” See Wilson v. Com'r of Soc. Sec., 378 F.3d 541, 547 (6th Cir. 2004) (quoting NLRB v. Wyman-Gordon, 394 U.S. 759, 766 n. 6 (1969)); Rabbers v. Com'r of Soc. Sec., 582 F.3d 647, 654 (6th Cir. 2009). So long as substantial evidence supports the same conclusion, and the errors are deemed “harmless, ” then this Court will affirm. Keeton v. Com'r of Social Sec., 583 Fed.Appx. 515, 524 (6th Cir. 2014). Based upon the totality of the record, the undersigned concludes that substantial evidence supports the ALJ's conclusion that Plaintiff did not carry her burden to show disability prior to June 30, 2012, her DLI for purposes of showing her entitlement to DIB. However, the record suggests that Plaintiff's conditions may have continued to deteriorate over time. For that reason, Plaintiff has demonstrated sufficient error in this judicial appeal to cast doubt upon the ALJ's determination that Plaintiff did not subsequently become entitled to SSI, prior to the final date of the ALJ's decision. Contrast Hauk v. Com'r of Soc. Sec., 2018 WL 1557248 at *3 (S.D. Ohio Mar. 30, 2018) (affirming where Plaintiff's claims did not “cast doubt on the ALJ's [RFC] determination”). Therefore, remand for further development of the SSI record is recommended.

         2. The Medical Opinion Evidence

         a. Applicable Regulatory Standard

         As stated, Plaintiff's first claim of error challenges the ALJ's evaluation of the medical opinion evidence. Although the ultimate determination of a claimant's RFC and the disability finding are reserved to the Commissioner, social security regulations generally provide for a hierarchical scheme in the consideration of medical opinion evidence. Until recent changes that took effect March 27, 2017, the regulations have required an ALJ to give the greatest weight to the opinions of a treating physician, with less presumptive weight to be afforded to the opinions of one-time examining consultants, and the least amount of weight to be automatically afforded to non-examining consultants. Thus, the well-established treating physician rule[4] requires “the ALJ to generally give greater deference to the opinions of treating physicians than to the opinions of non-treating physicians.” See Blakley v. Com'r of Social Security, 581 F.3d 399, 406 (6th Cir.2009).

         The relevant regulation concerning the opinions of treating physicians specifically 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.” 20 C.F.R. § 404.1527(c)(2); see also Warner v. Com'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004).

         The reasoning behind the rule has been stated as follows:

[T]hese sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of the claimant's medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of ...

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