Sharp v. Comm'r of Soc. Sec.
| Decision Date | 30 September 2015 |
| Docket Number | Case No. 5:14-cv-12829 |
| Parties | MARY DENISE SHARP, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR REMAND PURSUANT TO SENTENCE FOUR (DE 12), GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DE 15) and AFFIRMING THE DECISION OF THE COMMISSIONER OF SOCIAL SECURITY
Plaintiff, Mary Denise Sharp, brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for supplemental security income (SSI) benefits. Currently before the Court is Plaintiff's motion for remand pursuant to Sentence Four (DE 12), the Commissioner's cross motion for summary judgment (DE 15), Plaintiff's reply (DE 16) and the administrative record (DE 10).
The parties have consented to my authority. See DEs 17, 18 and 19. A hearing was noticed for September 17, 2015. On that date, Plaintiff's counsel (John M. Morosi) and local government counsel (AUSA Laura A. Sagolla) appeared in person, while AUSA Michael L. Henry appeared by telephone. At the conclusion of the hearing, I took the motions under advisement. Having considered the motion papers and oral arguments of counsel for the parties, the Court DENIES Plaintiff's motion for remand pursuant to Sentence Four (DE 12), GRANTS Defendant's motion for summary judgment (DE 15) and AFFIRMS the decision of the Commissioner of Social Security, for the reasons stated below
A. Background
Plaintiff filed her application for SSI benefits on March 8, 2011, alleging that she has been disabled since January 1, 2001, at age 33. (R. at 166-174.) Plaintiff alleges disability as a result of fibromyalgia, back problems, carpal tunnel syndrome in her hands, arthritis, heart condition, pain, depression, asthma and chronic obstructive pulmonary disease (COPD). (R. at 188-196.) Plaintiff's application was denied initially on September 13, 2010 and again on August 24, 2011. (R. at 90-97, 98, 114-117; R. at 99-112, 113, 118-121.)
On September 30, 2011, Plaintiff sought a de novo hearing before an Administrative Law Judge ("ALJ"). (R. at 122-124.) ALJ JoErin O'Leary held a hearing on October 1, 2012, at which Plaintiff and Witness James Sharp(Plaintiff's husband) appeared and Vocational Expert (VE) Toni McFarland testified. (R. at 47-89.) On March 21, 2013, ALJ O'Leary determined that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 10-46.)
On May 13, 2013, Plaintiff requested review of the hearing decision. (R. at 8-9.) On June 30, 2014, the Appeals Council denied Plaintiff's request for review. (R. at 1-5.) Thus, ALJ O'Leary's decision became the Commissioner's final decision.
Plaintiff then timely commenced the instant action on July 21, 2014, via counsel. (DE 1.) Plaintiff is represented here by attorney John M. Morosi.1
B. The Administrative Decision2
ALJ O'Leary rendered her decision on March 21, 2013. (R. at 10-46.) At Step 1, the ALJ found that Plaintiff had not engaged in substantial gainful activity since February 28, 2011,3 the date of her application. (R. at 15.)
At Step 2, the ALJ found that Plaintiff had the following severe impairments: chronic pain syndrome, fibromyalgia, myalgias, migraine headaches, mild cervical degenerative disc disease, bilateral carpal tunnel syndrome, bilateral epicondylitis, asthma, status-post three myocardial infarctions, sensorineural hearing loss, obesity, and dysthymia. (R. at 15-18.)
At Step 3, the ALJ found that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments. (R. at 18-22.)
At Step 4, after an incredibly thorough review of the Plaintiff's medical records, the ALJ found that Plaintiff has the residual functional capacity (RFC) to perform sedentary work with the following exceptions: she is able to frequently, but not constantly, perform handling and fingering; should not climb ladders, ropesor scaffolds, kneel, or crawl; must avoid extremely loud environments to preserve remaining hearing, defined as environments such as a foundry; must avoid unprotected heights or dangerous moving mechanical parts; must avoid concentrated exposure to dusts, odors, fumes, and other pulmonary irritants; and is limited to simple, routine tasks. (R. at 22-38.) Moreover, the ALJ found that Plaintiff is unable to perform any past relevant work. (R. at 38-39.)
At Step 5, having considered Plaintiff's age, education, work experience, and RFC, the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. (R. at 39-40.)
C. Issues and Sub-Issues
In her motion for remand, Plaintiff asserts that the ALJ erred in three ways, namely: (1) By failing to address her moderate limitations in consistency, persistence or pace (CPP) in either the hypothetical question posed to the VE and/or the RFC; (2) By failing to apply the Treating Source Rule; and (3) By failing to give Plaintiff, as a pro se litigant, the opportunity to (a) object to the VE's credentials and/or voir dire the VE, and (b) cross-examine the VE.
D. Standard of Review
The District Court has jurisdiction to review the Commissioner's final administrative decision pursuant to 42 U.S.C. § 405(g). When reviewing a case under the Social Security Act, the Court "must affirm the Commissioner's decisionif it 'is supported by substantial evidence and was made pursuant to proper legal standards.'" Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. at 2009) (quoting Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. § 405(g) (). Under this standard, "substantial evidence is defined as 'more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Rogers, 486 F.3d at 241 (quoting Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). In deciding whether substantial evidence supports the ALJ's decision, the court does "not try the case de novo, resolve conflicts in evidence or decide questions of credibility." Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Rogers, 486 F.3d at 247 ().
Although the substantial evidence standard is deferential, it is not trivial. The Court must "'take into account whatever in the record fairly detracts from [the] weight'" of the Commissioner's decision. TNS, Inc. v. N.L.R.B., 296 F.3d 384, 395 (6th Cir. 2002) (quoting Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 487 (1951)). Nevertheless, "if substantial evidence supports the ALJ's decision, this Court defers to that finding 'even if there is substantial evidence inthe record that would have supported an opposite conclusion.'" Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). Finally, even if the ALJ's decision meets the substantial evidence standard, "'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.'" Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).
E. Analysis
Plaintiff's first statement of error is that the ALJ's RFC assessment and hypothetical to the VE do not address Plaintiff's moderate limitations in concentration, persistence or pace. (See DE 12 at 14-17.).4 By way of background, the SSA has identified "four broad functional areas in which we will rate the degree of your functional limitation: Activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation." 20 C.F.R. § 404.1520a(c)(3) (emphasis added). Moreover:
When we rate the degree of limitation in the first three functional areas (activities of daily living; social functioning; and concentration, persistence, or pace), we will use the following five-point scale: None, mild, moderate, marked, and extreme. When we rate the degree of limitation in the fourth functional area (episodes of decompensation), we will use the following four-point scale: None, one or two, three, four or more. The last point on each scale represents a degree of limitation that is incompatible with the ability to do any gainful activity.
20 C.F.R. § 404.1520(c)(4) (emphasis added).
At Step 3, ALJ O'Leary determined that Plaintiff has moderate difficulties with regard to concentration, persistence or pace. Here, the ALJ relied upon several items, including certain pages of Dr. Deskovitz's August 9, 2011 evaluation (R. at 493-498) and some notes from Gregory J. Dardas, M.D. (R. at 625-626 (December 5, 2011), 628-629 (September 19, 2011)). (R. at 21.) The ALJ referred to each of these at Step 4. See, i.e., R. at 27-28, 33-34, 35-36. Ultimately, as set forth above, ALJ O'Leary's RFC determination included a limitation of "simple, routine tasks." (R. at 22-38.)
Nonetheless, Plaintiff claims that the ALJ "totally ignored" and "completely failed to address" her moderate difficulties with regard to CPP when questioning the VE and determining Plaintiff's RFC, "despite a rather exhaustive review of the medical record...." DE 12 at 15, 16.
"In order for a vocational expert's testimony in response to a hypothetical question to serve as substantial evidence in support of the conclusion that a claimant can perform other...
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