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Asbury v. Commissioner of Social Security

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

August 20, 2019

KRISTI ASBURY, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Dlott, J.

          REPORT AND RECOMMENDATION

          Karen L. Litkovitz, United States Magistrate Judge.

         Plaintiff Kristi Asbury brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying Plaintiffs applications for disability insurance benefits ("DIB") and supplemental security income ("SSI"). This matter is before the Court on plaintiffs Statement of Errors (Doc. 10), the Commissioner's response in opposition (Doc. 16), and plaintiffs reply (Doc. 17).

         I. Procedural Background

         Plaintiff filed her applications for DIB and SSI in August 2015, alleging disability since December 15, 2014, due to spondylolisthesis in the back, depression, Post Traumatic Stress Disorder ("PTSD"), anemia, Type II diabetes, chronic pain, anxiety, subluxation in neck, and memory issues. The applications were denied initially and upon reconsideration. Plaintiff, through counsel, requested and was granted a de novo hearing before administrative law judge ("ALJ") Reuben Sheperd. Plaintiff and a vocational expert ("VE") appeared and testified at the ALJ hearing on October 6, 2017. On December 20, 2017, the ALJ issued a decision denying plaintiffs DIB and SSI applications. This decision became the final decision of the Commissioner when the Appeals Council denied review on March 27, 2018.

         II. Analysis

         A. Legal Framework for Disability Determinations

         To qualify for disability benefits, a claimant must suffer from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. §§ 423(d)(1)(A) (DIB), 1382c(a)(3)(A) (SSI). The impairment must render the claimant unable to engage in the work previously performed or in any other substantial gainful employment that exists in the national economy. 42 U.S.C. §§ 423(d)(2), 1382c(a)(3)(B).

         Regulations promulgated by the Commissioner establish a five-step sequential evaluation process for disability determinations:

1) If the claimant is doing substantial gainful activity, the claimant is not disabled.
2) If the claimant does not have a severe medically determinable physical or mental impairment - i.e., an impairment that significantly limits his or her physical or mental ability to do basic work activities - the claimant is not disabled.
3) If the claimant has a severe impairment(s) that meets or equals one of the listings in Appendix 1 to Subpart P of the regulations and meets the duration requirement, the claimant is disabled.
4) If the claimant's impairment does not prevent him or her from doing his or her past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant is not disabled. If the claimant cannot make an adjustment to other work, the claimant is disabled.

Rabbers v. Comm'r of Soc Sec. 582 F.3d 647, 652 (6th Cir. 2009) (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 404.1520(b)-(g)). The claimant has the burden of proof at the first four steps of the sequential evaluation process. Id.; Wilson v. Comm'r of Soc. Sec, 378 F.3d 541, 548 (6th Cir. 2004). Once the claimant establishes a prima facie case by showing an inability to perform the relevant previous employment, the burden shifts to the Commissioner to show that the claimant can perform other substantial gainful employment and that such employment exists in the national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th Cir. 1999).

         B. The Administrative Law Judge's Findings

         ALJ Sheperd applied the sequential evaluation process and made the following findings of fact and conclusions of law:

1. The [plaintiff] meets the insured status requirements of the Social Security Act through March 31, 2018.
2. The [plaintiff] has not engaged in substantial gainful activity since December 15, 2014, the alleged onset date (20 CFR404.157I et seq., and 416.971 et seq.), 3. The [plaintiff] has the following severe impairments: Obesity; diabetes mellitus, with neuropathy; lumbar degenerative disc disease; asthma; and depressive, anxiety, attention deficit hyperactivity, personality, and post-traumatic stress disorders, with a history of substance use/abuse/dependence (20 CFR 404.1520(c) and 416.920(c)).
4. The [plaintiff] does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. The [plaintiff] has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a); however, the [plaintiff] requires a "sit/stand option, '" defined as the ability to alternate between sitting and standing positions at will. She can never climb ladders, ropes, or scaffolds, she can never work at unprotected heights or with moving mechanical parts, and the [plaintiff] cannot operate a motor vehicle as a part of her duties. The [plaintiff] can frequently balance, but she can no more than occasionally climb ramps/stairs, stoop, kneel, crouch, or crawl. She can tolerate occasional[] exposure to humidity, wetness, extreme temperatures, dust, odors, fumes, gases, poor ventilation, or similar respiratory irritants. Mentally, the [plaintiff] is limited to simple, routine tasks involving no more than simple work-related decisions; she is limited to frequent rather than constant interaction with the general public, and she can tolerate few changes in her routine work setting.
6. The [plaintiff] is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).[1]
7. The [plaintiff] was born [in] ... 1969 and was 45 years old, which is defined as a younger individual age 45-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The [plaintiff] has at least a high school education and can communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the [plaintiff] is "not disabled," whether or not the [plaintiff] has transferable job skills (See SSR 82-41 and 20 CFR Part 404 Subpart P, Appendix 2).
10. Considering the [plaintiff]'s age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the [plaintiff] can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).[2]
11. The [plaintiff] has not been under a disability, as defined in the Social Security Act, from December 15, 2014, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(Tr. 17-31).

         C. Judicial Standard of Review

         Judicial review of the Commissioners determination is limited in scope by 42 U.S.C. § 405(g) and involves a twofold inquiry: (I) whether the findings of the ALJ are supported by substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v. Comm'r of Soc. Sec, 581 F.3d 399, 406 (6th Cir. 2009); see also Bowen v. Comm'r of Soc. Sec, 478 F.3d 742, 745-46 (6th Cir. 2007).

         The Commissioner's findings must stand if they are supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion;' Richardson v. Perales, 402 U.S. 389, 401 (1971) (citing Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). Substantial evidence consists of "more than a scintilla of evidence but less than a preponderance......." Rogers v. Comm'r of Soc Sec, 486 F.3d 234, 241 (6th Cir. 2007). In deciding whether the Commissioner's findings are supported by substantial evidence, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).

         The Court must also determine whether the ALJ applied the correct legal standards in the disability determination. Even if substantial evidence supports the ALJ's conclusion that the plaintiff is not disabled, "a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right." Rubbers, 582 F.3d at 651 (quoting Bowen, 478 F.3d at 746). See also Wilson, 378 F.3d at 545-46 (reversal required even though ALJ's decision was otherwise supported by substantial evidence where ALJ failed to give good reasons for not giving weight to treating physician's opinion, thereby violating the agency's own regulations).

         D. Specific errors

         On appeal, plaintiff alleges that the ALJ erred: (1) by finding that plaintiff did not meet and/or equal the requirements of Listings 1.04A and 1.04C for disorders of the spine; (2) by fashioning a residual functional capacity ("RFC") that does not fully account for plaintiffs mental limitations; and (3) by failing to properly evaluate the opinion of plaintiff s treating psychiatrist, Dr. Michael Cerullo, M.D. (Docs. 10, 17).

         I. Step Three Error

         a. Step Three of the sequential evaluation

         Plaintiff alleges that the ALJ erred at step three of the sequential evaluation process by finding that her degenerative disc disease did not meet or equal § 1.04 of the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. At the third step in the disability evaluation process, a claimant will be found disabled if her impairments meet or equal a listing in the Listing of Impairments. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); Turner v. Comm'r of Soc. Sec., 381 Fed.Appx. 488, 491 (6th Cir. 2010). The Listings describe impairments the Social Security Administration considers to be "severe enough to prevent an individual from doing any gainful activity, regardless of his or her age, education, or work experience."' 20 C.F.R. §§ 404.1525(a), 416.925(a). Each listing specifies "the objective medical and other findings needed to satisfy the criteria of that listing." 20 C.F.R. §§ 404.1525(c)(3), 416.925(c)(3). A claimant must satisfy all of the specified criteria to "meet" a listing. Id.; Rabbers, 582 F.3d at 653. See also Brauninger v. Comm'r of Soc. Sec., No. 18-3495, 2019 WL 2246791, at *5 (6th Cir. Feb. 25, 2019) (citing Sullivan v. Zebley, 493 U.S. 521, 532 (1990)). In addition, the regulations require that the requisite abnormal findings must be established over a period of time and "established by a record of ongoing management and evaluation." 20 C.F.R. Part 404, Subpt. P, App. 1, § 1.00(D). See also Irvin v. Comm V of Soc. Sec, No. 1:12-cv-837, 2013 WL 3353888, at *10 (S.D. Ohio July 3, 2013); see also Brauninger, 2017 WL 5020137 at *21 ("[Occasional or intermittent findings of decreased reflexes or changes in sensation of the lower extremities are not sufficient to satisfy Listing 1.04(A).")

         The ALJ must "actually evaluate the evidence/' compare it to the requirements of the relevant listing, and provide an "explained conclusion, in order to facilitate meaningful judicial review" of a step three finding. Reynolds v. Comm'r of Soc. Sec, 424 Fed.Appx. 411, 416 (6th Cir. 2011). If a claimant's impairment does not meet a listed impairment, the claimant will still be found disabled at step three if her impairment is the medical equivalent of a listing. 20 C.F.R, §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). To be the medical equivalent of a listed impairment, a claimant's impairment must be "at least equal in severity and duration to the criteria of any listed impairment." 20 C.F.R. §§ 404.1526(a), 416.926(a). An impairment is medically equivalent to a listing if medical findings related to the impairment are at least of equal medical significance to the findings necessary to meet the Listings. 20 C.F.R. §§ 404.1526(b)(1), 416.926(b)(1). Tipton v. Comm 'r of Soc. Sec, No. 2:14-cv-1209, 2015 WL 3505513, at *5 (S.D. Ohio June 3, 2015) (Report and Recommendation), adopted, 2015 WL 3952347 (S.D. Ohio June 29, 2015). The claimant bears the burden of presenting "medical findings equal in severity to all the criteria for the one most similar listed impairment'' to establish equivalency. Zebley, 493 U.S. at 530 (emphasis in the original). The ALJ is required to compare the medical evidence with the components of listed impairments in considering whether the condition is equivalent in severity to the medical findings for a listed impairment. See Lawson v. Comm'r of Soc. Sec, 192 Fed.Appx. 521, 529 (6th Cir. 2006). When performing this analysis, the ALJ must "consider all evidence in [the] case record about [the claimant's] impairment(s) and its effects on [the claimant] that is relevant to this finding." 20 C.F.R. §§ 404.1526(c), 416.926(c).

         Under Sixth Circuit law, the court may uphold a conclusory step three finding if the ALJ's findings at other steps of the sequential evaluation provide a sufficient basis for the ALJ's step three finding. Forrest v. Comm'r of Soc. Sec, 591 F. App"x 359, 366 (6th Cir. 2014) (citing Bledsoe v. Barnhart, 165 Fed.Appx. 408, 411 (6th Cir. 2006) ("looking to findings elsewhere in the ALJ's decision to affirm a step-three medical equivalency determination, and finding no need to require the ALJ to 'spell out every fact a second time"')). Even if adequate support for the ALJ's step three finding is lacking, the error is harmless where the plaintiff has not shown that her impairments met or medically equaled the severity of any listed impairment. Id. at 366 (citing Reynolds, 424 Fed.Appx. at 416). See also Layton ex rel. B.O. v. Colvin, No. 12-12934, 2013 WL 5372798, at **8, 15 (E.D. Mich. Sept. 25, 2013).

         b. The ALJ's step three analysis

         Plaintiff argues that the ALJ's step three finding is not supported by substantial evidence because the ALJ did not properly evaluate her physical impairments under Listing 1.04. Plaintiffs counsel expressly informed the ALJ at the oral hearing that plaintiff was not contending that her impairments met a listing. (Tr. 46-47). The ALJ nonetheless considered at step three whether plaintiffs spinal impairment satisfied the criteria of Listing 1.04. The ALJ found that "the medical evidence fails to establish the severity of nerve root compression, spinal arachnoiditis or lumbar spinal stenosis required by Listing 1.04, "" and the record did not document that plaintiffs spinal impairment resulted in "sensory or reflex loss, or in severe burning or painful dysesthesia resulting in the need for changes in position or posture more than once every 2 hours, or in an inability to ambulate effectively, as that term is defined in Section 1.00(B)(2)(b) of the listings." (Tr. 18) (emphasis in the original).

         Plaintiff alleges that contrary to the ALJ's finding, she has produced evidence that satisfies every requirement of Listings 1.04 A and 1.04C. (Doc. 10 at 6-11). Plaintiff argues that in determining otherwise, the ALJ did not fulfill his duty to evaluate the evidence, compare it to Listing 1.04, and give an explanation for his conclusion, (Id. at 10, citing Reynolds, 424 F. App"x 416). Plaintiff contends that the ALJ's entire analysis consists of one sentence, which is: "As the record also fails to document the necessary findings, the claimant's spinal impairment is likewise lacking in listing-level severity." (Doc. 10 at 10, citing Tr. 18). Plaintiff alleges the case must be remanded because the ALJ did not "articulate a meaningful discussion of the Listing or related criteria." (Id. at 10).

         c. Listings ...


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