Johnston v. Comm'r of Soc. Sec., Case No. 13-14443
| Decision Date | 06 March 2015 |
| Docket Number | Case No. 13-14443 |
| Parties | JANICE KAY JOHNSTON, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
REPORT AND RECOMMENDATION CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkts. 13, 15)
On October 23, 2013, plaintiff filed the instant suit seeking judicial review of the Commissioner's decision disallowing benefits. (Dkt. 1). Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(b)(3), District Judge Patrick J. Duggan referred this matter to the undersigned for the purpose of reviewing the Commissioner's decision denying plaintiff's claims. (Dkt. 3). This matter is before the Court on cross-motions for summary judgment. (Dkts. 13, 15). The cross-motions are now ready for report and recommendation.
Plaintiff filed the instant claim for a period of disability and disability insurance benefits on January 20, 2011, alleging disability beginning January 1, 2007. (Tr. 12). The Commissioner initially denied plaintiff's disability application on April 21, 2011. (Tr. 50-58). Thereafter, plaintiff requested an administrative hearing, and on April 17, 2012, she appeared with counsel before Administrative Law Judge ("ALJ") John J. Rabaut, who considered her case de novo. (Tr. 27-49). In a May 7, 2012 decision, the ALJ determined that plaintiff was not disabled within the meaning of the Social Security Act. (Tr. 12-22). The ALJ's decision became the final decision of the Commissioner on August 13, 2012, when the Social Security Administration's Appeals Council denied plaintiff's request for review. (Tr. 6-11). Plaintiff filed this suit on October 23, 2013. (Dkt. 1).
For the reasons set forth below, the Court concludes that substantial evidence supports the administrative law judge's residual functional capacity ("RFC") decision. Relatedly, the Court concludes that there was no error in the questioning of the vocational expert. Finally, the Court concludes that the ALJ properly assessed plaintiff's credibility. The Court therefore RECOMMENDS that Plaintiff's Motion for Summary Judgment (Dkt. 13) be DENIED, that Defendant's Motion for Summary Judgment (Dkt. 15) be GRANTED, and that,pursuant to 42 U.S.C. § 405(g), the decision of the Commissioner of Social Security be AFFIRMED.
Plaintiff had past relevant work as a caregiver, parts salvager and maintenance worker. (Tr. 20). Plaintiff testified that her past relevant work required her to lift up to 80 pounds and other labor-intensive jobs. (Id.) The ALJ applied the five-step disability analysis to plaintiff's claims and found at step one that between the alleged onset date (January 1, 2007) and the last date insured (September 30, 2008), plaintiff did not engage in any substantial gainful activity. (Tr. 14). At step two, the ALJ found that plaintiff had the following severe impairments: diverticulitis, irritable bowel syndrome, colitis, diverticulosis, and anxiety.1 (Id.) At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that met or equaled one of the listings in the regulations. (Tr. 16).
The ALJ determined that plaintiff had the residual functional capacity ("RFC") to perform:
sedentary work as defined in 20 CFR 404.1567(a) except that she must be allowed to alternate between sitting and standing at will. She is unable to climb ladders, ropes, or scaffolds, and she is able to climb ramps or stairs, balance, stoop, crouch, kneel, and crawl no more than occasionally. The claimant must avoid all exposure to vibrations, moving machinery, and unprotected heights. Her work must be low-stress, defined as only occasional decision-making requirements and only occasional changes in the work setting, with no more than occasional interaction with the general public, and she will need access to bathrooms.
(Tr. 17). At step four, the ALJ determined that plaintiff was not capable of performing any past relevant work. (Tr. 20). The vocational expert who testified at the administrative hearing agreed, concluding that plaintiff could not return to her past work. (Id.) At step five, the ALJ concluded that based on plaintiff's age, education, work experience and RFC, there were jobs that existed in significant numbers in the national economy that plaintiff could have performed and, therefore, she was not under a disability at any time from the alleged onset date through the date last insured. (Tr. 21-22).
Plaintiff submits two related claims; first, plaintiff argues that the residual functional capacity is not supported by the substantial weight of the evidence in violation of 20 C.F.R. § 416.926(c). (Dkt.13, Pl.'s Mot. Summ. J. at 12.) Second,plaintiff claims that the ALJ submitted an improper hypothetical to the vocational expert ("VE") that did not portray all aspects of her limitations and subsequently erred by relying on that testimony. (Id.)
Plaintiff argues that "[i]f the Secretary seeks to rely on VE testimony to carry his burden of proving the existence of a substantial number of jobs that plaintiff can perform, other than her past work, the testimony must be given in response to a hypothetical question that accurately describes the plaintiff in all significant, relevant respects; for a response to a hypothetical question to constitute substantial evidence, each element of the hypothetical must accurately describe the claimant." (Dkt. 13, Pl.'s Mot. Summ. J. at 12; citing Felisky v. Bowen, 35 F.3d 1027 (6th Cir. 1994); Varley v. Secretary of Health & Human Services, 820 F.2d 777, 779 (6th Cir. 1987); Bradshaw v. Heckler, 810 F.2d 786, 790 (8th Cir. 1987)). In this case, plaintiff contends that while the ALJ concluded that plaintiff had "moderate" limitations in concentration, persistence or pace, he did not adequately reflect those limitations in the RFC, or in his hypothetical to the VE. (Dkt.13, Pl.'s Mot. Summ. J. at 14).
Notwithstanding, plaintiff says that the vocational expert's opinion supports a finding of disability that the ALJ disregarded. The VE testified that if plaintiff needed to take two partial days off per month all employment would be precluded. (Dkt. 13, Pl.'s Mot. Summ. J. at 14). While plaintiff contends that the ALJ failedto elicit testimony regarding how much time off someone with "moderate" limitations needs, plaintiff cites precedent from this court including Edwards v. Barnhart, 383 F. Supp. 2d 920 (E.D. Mich. 2005), Bankston v. Comm'r, 127 F. Supp. 2d 820 (E.D. Mich. 2000), and Benton v. Comm'r of Soc. Sec., 511 F. Supp. 2d 842 (E. D. Mich. 2007), to show that the ALJ erred by not including her "moderate" limitations in concentration, persistence or pace in the RFC determination and that at the very least a remand is required to allow the ALJ to accommodate for her limitations and retake VE testimony at step five. (Dkt.13, Pl.'s Mot. Summ. J. at 13-15.)
The ALJ made impermissible and conclusory credibility findings. (Dkt.13, Pl.'s Mot. Summ. J. at 15-16). Plaintiff contends that she had consistent, medically supported complaints of pain to which the ALJ did not give proper credit. (Id.) Moreover, plaintiff indicates that the ALJ failed to properly inquire as to the nature and extent of plaintiff's pain and limitations at the hearing despite plaintiff's multiple hospitalizations prior to the date last insured together with findings of severe gastrointestinal disorder and numerous procedures. (Id.) Further, plaintiff claims that the ALJ failed to seek information regarding plaintiff's health insurance and financial ability which limited her ability to obtain additional medical treatment. (Id.)
The Commissioner argues that the ALJ concluded that plaintiff had "'no more than moderate' deficiencies of concentration, persistence, or pace, and that plaintiff retained the mental ability to perform unskilled and low-stress work, defined as work that involved only 'occasional' decision-making, public contact, and workplace changes." (Dkt. 15, Def.'s Mot. Summ. J. at 11). Citing Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001), the Commissioner argues that an ALJ may rely on VE testimony if the hypothetical question to the VE includes the ALJ's RFC finding, even though it does not include the ALJ's "B" criteria findings (i.e., the findings pertaining to daily activities, social functioning, concentration, persistence, or pace, and episodes of decompensation that are evaluated by the ALJ under the psychiatric review technique procedures set forth in 20 C.F.R. §§ 404.1520a(c)-(d)). See Smith, 307 F.3d at 379 (). The Commissioner points out that the mental impairment regulations were revised after Smith, but contends that this Court recognizes that the term "moderate," which is used to described limitations in the current regulations, parallels the term "often,"which was used to describe limitations in the previous regulations. (Def.'s Mot. Summ. J. at 12; citing Edwards v. Barnhart, 383 F. Supp.2d 920, 930 (E.D. Mich. 2005)).
The Commissioner also argues that plaintiff's argument on this point is undeveloped. Specifically, the Commissioner contends that plaintiff does not specify what component of "moderate" problems with concentration the RFC failed to accommodate. (Dkt. 15, Def.'s Mot. Summ. J. at 12). The first component concerns the frequency of the...
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