Opinion
1:23-cv-956
01-22-2024
Sonia Ivette Vega, Plaintiff, v. Commissioner of Social Security, Defendant.
John R. Adams, District Judge
REPORT & RECOMMENDATION
James E. Grimes Jr., U.S. Magistrate Judge
Plaintiff Sonia Ivette Vega filed a Complaint against the Commissioner of Social Security seeking judicial review of its decision denying supplemental security income. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c). The Court referred this matter to a Magistrate Judge under Local Rule 72.2(b)(1) for the preparation of a Report and Recommendation. Following review, and for the reasons stated below, I recommend the District Court affirm the Commissioner's decision.
Procedural background
Previous applications. In November 2015, Vega filed applications for disability insurance benefits and supplemental social security income. See Tr. 95. In November 2017, Administrative Law Judge (ALJ) Pamela Loesel issued a written decision finding that Vega was not disabled. See Tr. 95.
In July 2018, Vega again filed applications for disability insurance benefits and supplemental social security income, alleging a disability onset date of February 12, 2016.Tr. 95. ALJ Catherine Ma issued a written decision in November 2019, finding that Vega was not disabled. Tr. 92-113. ALJ Ma found that the record lacked evidence to support a finding of significant change in Vega's physical or mental condition since ALJ Loesel had issued her decision in November 2017. Tr. 95. As such, ALJ Ma said that under Drummond v. Comm'r of Soc. Sec., 126 F.3d 837 (6th Cir. 1997) and Acquiescence Ruling 984(6), 1998 WL 274052 (Soc. Sec. Admin., June 1, 1998), she was bound by ALJ Loesel's RFC findings. Tr. 95, 105, 106. ALJ Ma thus recited ALJ Loesel's residual functional capacity (RFC)assessment and found that Vega had the RFC to:
“Once a finding of disability is made, the ALJ must determine the onset date of the disability.” McClanahan v. Comm's of Soc. Sec., 193 Fed.Appx. 422, 425 (6th Cir. 2006).
An RFC is an “assessment of”' a claimant's ability to work, taking his or his “limitations ... into account.” Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 239 (6th Circ. 2002) (quoting 20 C.F.R. § 416.945). Essentially, it is the Social Security Administration's “description of what the claimant ‘can and cannot do.'” Webb v. Comm'r of Soc. Sec., 368 F.3d 629, 631 (6th Cir. 2004) (quoting Howard, 276 F.3d at 239).
perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except the claimant [wa]s unlimited in pushing and pulling other than ... lift[ing] and/or carry[ing] ... 50 pounds occasionally and 25 pounds frequently, consistent with medium work[]. The claimant c[ould] frequently climb ramps and stairs, frequently climb ladders, ropes, or scaffolds, and frequently stoop, kneel, crouch, and crawl. The claimant [needed to] avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation. The claimant c[ould] perform simple routine tasks (unskilled work) with no fast pace or
high production quotas and with infrequent changes where changes c[ould] be explained, with superficial interaction with others meaning a short duration for a specific purpose. The claimant c[ould] perform low stress work, meaning no arbitration, negotiation, responsibility for the safety of others, or supervisory responsibility.Tr. 100. ALJ Ma also noted that she had adopted ALJ Loesel's findings as to the exertional demands of Vega's past relevant work in compliance with Dennard v. Sec'y of Health and Human Services, 907 F.2d 598 (6th Cir. 1990), and Acquiescence Ruling 98-3(6), 1998 WL 274051 (Soc. Sec. Admin., June 1, 1998). Tr. 95, 100.
Present application. In August 2020, Vega filed the application for supplemental social security income at issue in the instant matter. Tr. 228. She alleged a disability onset date of November 1, 2019, and claimed that she was disabled due to depression, anxiety, chronic obstructive pulmonary disease, swollen legs, high blood pressure, and arthritis. Tr. 120. Vega later amended her application to include physical and mental impairments due to “anemia blood disorder,” degenerative disc disease of the lumbar spine, status post ORIFsurgery for left fibula and right foot fractures, pes cavus, status post gunshot wound, post-traumatic stress disorder, and chronic and severe major depressive disorder with psychotic symptoms. See Tr. 44. The Commissioner denied Vega's applications at the initial level and on reconsideration. Tr. 120-36. Vega requested a hearing before an ALJ. Tr. 14849. In April 2022, ALJ Keith Kearney held a hearing at which Vega and vocational expert Kevin Rose testified. Tr. 35-71. Two weeks later, ALJ Kearney issued a written decision finding that Vega was not disabled. Tr. 1734. Vega appealed. Tr. 225-26. ALJ Kearney's decision became final in March 2023, when the Appeals Council declined further review. Tr. 6-11; see 20 C.F.R. § 404.981. Vega filed this action in May 2023. Doc. 1. In it, she asserts the following assignments of error:
ORIF is the abbreviation for open reduction internal fixation; it denotes a type of surgery. See Repairing Major Bone Breaks with Open Reduction Internal Fixation Surgery, Healthline, https://www.healthline.com/health/orif-surgery [https://perma.cc/V467-BYPB]. Doctors use ORIF surgery to fix serious fractures that cannot be treated with a cast or splint. Id.
Pes cavus is an orthopedic foot condition characterized by a “spectrum of associated deformities” such as clawed toes, deformed hindfoot, fixed and tightened plantar fascia, and a “cock-up deformity of the great toe.” See Pes Cavus, Physiopedia, https://www.physio-pedia.com/PesCavus [https: //perma. cc/KF 4N - VW AX].
1. The ALJ failed to support his RFC with substantial evidence when he applied the wrong standard of review by adopting the findings of the prior Administrative Law Judge.
2. The ALJ's finding at Step Four and Five of the Sequential Evaluation that Plaintiff could perform work at the medium level of exertion was not supported by substantial evidence.Doc. 7, at 1.
Factual background
1. Personal and vocational evidence
Vega was born in 1961 and was 58 years old on her alleged disability onset date. Tr. 120. She attended some high school. Tr. 252. She previously took care of her father as a home health aide and assembled benches at a factory. Tr. 57, 252.
This recitation of medical evidence is not intended to be exhaustive. The discussion of the evidence is limited to the evidence cited by the parties in their briefs and any additional evidence necessary to provide context. Vega's claims hinge on whether her conditions worsened or her functioning was more limited after ALJ Ma's decision was issued. I have thus mainly limited this discussion to evidence generated after November 5, 2019.
Physical impairment evidence. In November 2019, Vega developed a rash while doing yardwork and sought emergency medical treatment. Tr. 45960. She reported no shortness of breath, no back pain, and no joint pain. Tr. 459. She had full range of motion. Tr. 460. Jason Lu, APRN-CNP, found that Vega had “raised ... lesions ... consistent with poison ivy” and discharged Vega with prescriptions for Prednisone, Benadryl, and calamine lotion. Id.
In February 2020, Vega had a telemedicine appointment with Christopher Gillespie, M.D., to address hypertension. Tr. 513. Vega reported feeling well. Id. She denied edema, fatigue, and shortness of breath. Id. Dr. Gillespie noted that Vega was tolerating her medication well and did not have any side effects. Id.
In March, Vega saw Dr. Gillespie in-person. Tr. 512. He had prescribed a new medication which improved Vega's blood pressure. Id. Vega reported feeling “much better.” Id. She denied edema, fatigue, and shortness of breath. Id. She continued to tolerate her medication well and without side effects. Id.
In December 2020, a pharmacist refilled Vega's prescription for an inhaler that Dr. Gillespie suggested Vega use four times per day. Tr. 630.
Mental impairment evidence. Sharon Roesner, APRN-CNP, provided pharmacological management of Vega's major depressive, post-traumatic stress, and anxiety disorders during relevant telehealth appointments in February, April, May, and October 2020; April and October 2021; and February 2022. See Tr. 72-79, 83-84, 86-87, 293, 296-300, 305-09, 313-14, 556-59, 576-80.
In February 2020, Roesner noted that Vega had stress but wasn't overwhelmed. Tr. 557. She said that Vega “ha[d] her days” of feeling anxious but was “doing ok.” Id. Vega had a normal mental status examination. Id.
In April, Vega continued to report that she felt “ok” although there were days when she felt anxious. Tr. 563. Vega had a full affect, cooperative behavior, normal recent and remote memory, good judgment and insight, and sustained attention and concentration. Id. She denied pain. Tr. 564. Roesner noted that Vega “appeared to be in a good mood” and had been “laughing on the phone.” Id.
In October, Vega reported that she was “okay” although she was “tired of being in jail.” Tr. 578. Roesner observed that Vega “continue[d] to be in a good mood and just need[ed] some refills.” Id. She found that Vega had a “euthymic, anxious” mood. Tr. 579. Vega's mental status examination was otherwise normal. Id.
A euthymic mood is tranquil, neither depressed nor manic. See Dorland's Illustrated Medical Dictionary 647 (33rd ed. 2020).
3. State agency and other medical opinion evidence
When a claimant applies for disability benefits, the state agency creates a record. The record includes the claimant's medical evidence. A state agency disability examiner and a state agency physician or psychologist review the claimant's record and determine whether and to what extent the claimant's condition affects his or her ability to work. If the state agency denies the claimant's application, the claimant can ask for reconsideration. On reconsideration, the state agency updates the record and a second disability examiner and doctor review the file and make a new determination. See, e.g., 20 C.F.R. § 404.1615.
In October 2020, W. Scot Bolz, M.D., reviewed the medical evidence and indicated that his RFC was an adoption of the physical RFC findings from ALJ's Ma's November 2019 decision. See Tr. 120-27. Dr. Bolz indicated that he had used a “systems workaround” to complete his medical assessments in compliance with Acquiescence Ruling 98-4, known as the Drummond Ruling, Acquiescence Ruling 98-3(6), and Dennard. Tr. 125. Dr. Bolz then recited the prior ALJ's RFC findings verbatim. Tr. 125.
In March 2021, Diane Manos, M.D., reviewed the medical evidence on reconsideration. Tr. 129-36. She noted that Dr. Bolz had adopted his RFC findings from a prior decision. Tr. 133. Dr. Manos found that there was “no alleged worsening” and that the “[i]nitial findings were still appropriate for reconsideration.” Id. She indicated that she was adopting the physical RFC findings from ALJ Loesel's November 2017 decision. See id. Dr. Manos stated that she was adopting these findings under Acquiescence Ruling 98-4 and had used a “systems workaround” to complete her medical assessments in compliance with “the Drummond/Dennard ARs.” Id.
Dr. Manos said that she adopted the physical RFC findings from a decision dated November 28, 2017, the date on which ALJ Loesel issued her decision. See Tr. 95, 100. ALJ Ma's RFC was an adoption of ALJ Loesel's RFC, so although Dr. Bolz and Dr. Manos cite different prior decisions, their findings are identical. See Tr. 95, 100, 105-06, 125, 133.
In October 2020, David Dietz, Ph.D., reviewed the medical evidence and indicated that he was adopting ALJ Ma's psychiatric review findings regarding mental function. See Tr. 123. Dr. Dietz recited ALJ Ma's findings verbatim and said that his mental RFC findings were an adoption of the prior mental RFC findings in compliance with Acquiescence Ruling 98-4. Tr. 123, 125; see also Tr. 100.
In March 2021, Aracelis Rivera, Psy.D., reviewed the medical evidence on reconsideration. Tr. 130-33. She noted that Dr. Dietz had adopted his mental RFC findings from a prior decision. Tr. 133. Dr. Rivera stated that she found “no alleged worsening” and that the “[i]nitial findings [we]re still appropriate for reconsideration.” Id. She indicated that she was adopting the mental RFC findings from ALJ Loesel's November 2017 decision under Acquiescence Ruling 98-4. Id.
Like Dr. Manos, Dr. Rivera's RFC findings on reconsideration appear to be an adoption of ALJ Loesel's mental RFC. See Tr. 95, 125, 133. Although Doctors Rivera and Dietz cite different prior decisions, their findings are identical for the reasons noted above. Compare Tr. 133, with 100, 125.
4. Testimonial evidence
Vega and a vocational expert testified during the hearing in April 2022. Tr. 35-71. Vega was represented by attorney Andrew November, who made an opening statement advocating that ALJ Kearney find Vega disabled. Tr. 44. Vega then testified. Tr. 45-60.
Vega said that her physical condition had worsened since the end of 2019. See Tr. 45-49. If Vega walked “a lot,” her ankles and right foot became so swollen that she had to go home and elevate them. Tr. 45-46. This limited the distance that Vega was able to walk and prevented her from doing a lot of things. See id. Vega said that she experienced pain in her elbow and lower back every day. Tr. 46. She hadn't noticed anything that exacerbated this pain, however, it improved when she lied down. Tr. 46-47.
Vega discussed her COPD, which made it difficult for her to breathe especially when climbing stairs. Tr. 47. She kept her medicated inhaler with her “all the time” and used it four times a day or more. Id. Vega testified that walking around her house “like from the living room to the bathroom” was difficult due to her COPD. See Tr. 48. When the ALJ asked, Vega confirmed that strong chemicals and smells also triggered her COPD symptoms. See id.
COPD is the abbreviation for chronic obstructive pulmonary disease, a chronic inflammatory lung disease that causes obstructed airflow from the lungs. COPD, Mayo Clinic Diseases & Conditions, https://www.mayoclinic.org/diseases-conditions/copd/symptoms-causes/syc-20353679 [https://perma.cc/N6TL-8MBQ].
Vega estimated that she could stand for “five minutes, not even” before her feet, knees, and legs started to “giv[e] up” and she needed to sit for “a good 15 to 20 minutes.” Tr. 48-49. Vega said that she could walk for “like two seconds” before needing to rest. Tr. 49. She testified that she wasn't able to lift more than five pounds. Id.
Vega discussed her mental health. See Tr. 50-55. She told ALJ Kearney that in the past, she would cry a lot and stay in her bedroom. Tr. 50. Vega didn't go anywhere and didn't want to go anywhere. Id. Vega said that now that she was taking her medication, she “still felt the same way” but she made more of an effort not to isolate herself. See id. Vega mentioned her anxiety and panic attacks. Tr. 51. She said that being around a lot of people scared her and made her feel like she was being watched. Tr. 50. She said she had three panic attacks in March 2022, the month before the hearing. See id. Vega had trouble sleeping and only got “probably six” hours of restful sleep per night. Tr. 50-51. She took Xanax, which “sometimes” helped her sleep. Tr. 50.
Vega told ALJ Kearney about her concentration and memory problems. Tr. 51. She said that it was difficult for her to focus and remember things, so she would write down things that she wanted or needed to do. Id. Vega indicated that having a poor memory affected her ability to cook and prepare food. Tr. 51. She explained that sometimes she would start doing something else while she was in the middle of cooking, having forgotten that she was cooking in the first place. See Tr. 51-52. She said that she didn't usually remember she'd been cooking until she smelled her food burning. See Tr. 52. Vega said that auditory hallucinations in the form of voices, which she heard “almost every day,” further interfered with her ability to concentrate. Tr. 53. Vega said that the voices persisted even though she increased her dose of Xanax and started taking a new medication. Id.
After Vega concluded her testimony, ALJ Kearney stated that he was bound by Dennard with respect to the recitation of past relevant work. See Tr. 58; 907 F.2d 598. As such, the ALJ's hypotheticals to vocational expert Kevin Ross would be based on Vega's testimony from the 2017 hearing. Id.
Ross then testified. Tr. 60-70. He said that that a hypothetical individual with Vega's age and the same level of education, work experience, and limitations assessed in Vega's RFC, described below, would not be able to perform Vega's past work. Tr. 61-62. Such an individual could, however, perform labor with a medium level of exertion such as a kitchen helper or warehouse worker. Tr. 62-63. Being off task 10 percent or more during the workday would preclude all work. Tr. 64.
The ALJ's decision
The ALJ made the following findings of fact and conclusions of law:
1. The claimant has not engaged in substantial gainful activity since August 13, 2020, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: degenerative disc disease of the lumbar spine; osteoarthritis and allied disorders of the left ankle; obesity; chronic obstructive pulmonary disease; depressive, bipolar, and related disorders; anxiety and obsessivecompulsive disorders; and trauma and stressor related disorders (20 CFR 416.920(c)).
3. The claimant 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 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 416.967(c) except is unlimited in pushing and pulling other than shown for lift and/or carry (that is, 50 pounds occasionally and 25 pounds frequently, consistent with medium work). The claimant can frequently climb ramps and stairs, frequently climb ladders, ropes, or scaffolds, and frequently stoop, kneel, crouch, and crawl. The claimant must avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation. The claimant can perform simple, routine tasks with no fast pace or high production quotas and with infrequent changes where changes can be explained, with superficial interaction with others meaning a short duration for a specific purpose. The claimant can perform low stress work, meaning no arbitration, negotiation, responsibility for the safety of others, or supervisory responsibility.
5. The claimant is unable to perform any past relevant work (20 CFR 416.965).
6. The claimant was born on May 19, 1961 and was 59 years old, which is defined as an individual of
advanced age, on the date the application was filed. The claimant subsequently changed age category to closely approaching retirement age (20 CFR 416.963).
7. The claimant has a limited education (20 CFR 416.964).
8. 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 claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
9. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969 and 416.969a).
10. The claimant has not been under a disability, as defined in the Social Security Act, since August 13, 2020, the date the application was filed (20 CFR 416.920(g)).Tr. 23-31.
Standard for disability
Eligibility for benefit payments depends on the existence of a disability. 42 U.S.C. §§ 423(a, 1382(a). “Disability” is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which 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); see also 42 U.S.C. § 1382c(a)(3)(A).
An ALJ is required to follow a five-step sequential analysis to make a disability determination:
1. Is the claimant engaged in substantial gainful activity? If so, the claimant is not disabled.
2. Does the claimant have a medically determinable impairment, or a combination of impairments, that is “severe”? If not, the claimant is not disabled.
3. Does the claimant's impairment meet or equal one of the listed impairments and meet the duration requirement? If so, the claimant is disabled. If not, the ALJ proceeds to the next step.
4. What is the claimant's residual functional capacity, and can the claimant perform past relevant work? If so, the claimant is not disabled. If not, the ALJ proceeds to the next step.
5. Can the claimant do any other work considering the claimant's residual functional capacity, age, education, and work experience? If so, the claimant is not disabled. If not, the claimant is disabled.20 C.F.R. §§ 404.1520, 404.1520; see Jordan v. Comm'r of Soc. Sec., 548 F.3d 417, 422 (6th Cir. 2008). Under this sequential analysis, the claimant has the burden of proof at steps one through four. Jordan, 548 F.3d at 423. The burden shifts to the Commissioner at step five “to prove the availability of jobs in the national economy that the claimant is capable of performing.” Id. “The claimant, however, retains the burden of proving her lack of residual functional capacity.” Id. If a claimant satisfies each element of the analysis and meets the duration requirements, the claimant is determined to be disabled. Walters Comm'r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997).
Standard of review
A reviewing court must affirm the Commissioner's conclusions unless it determines “that the ALJ has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence in the record.” Jordan, 548 F.3d at 422. “‘[S]ubstantial evidence' is a ‘term of art'” under which “a court ... asks whether” the “existing administrative record ... contains ‘sufficien[t] evidence' to support the agency's factual determinations.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (citations omitted). The substantial evidence standard “is not high.” Id. Substantial evidence “is ‘more than a mere scintilla'” but it “means only[] ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Id. (citations omitted). The Commissioner's “findings . as to any fact if supported by substantial evidence [are] conclusive.” 42 U.S.C. § 405(g); Biestek, 139 S.Ct. at 1152.
A court may “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). Even if substantial evidence or a preponderance of the evidence supports a claimant's position, a reviewing court cannot overturn the Commissioner's decision “so long as substantial evidence also supports the conclusion reached by the ALJ.” Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003). This is so because there is a “‘zone of choice within which'” the Commissioner can act, without fear of court “‘interference.'” Lindsley v. Comm'r of Soc. Sec., 560 F.3d 601, 605 (6th Cir. 2009) (quoting Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994)).
Discussion
1. Whether the ALJ's RFC was supported by substantial evidence
In Drummond, the Sixth Circuit acknowledged that certain previous cases “clearly demonstrate that the principles of res judicata can be applied against the Commissioner. When the Commissioner has made a final decision concerning a claimant's entitlement to benefits, the Commissioner is bound by this determination absent changed circumstances.” 126 F.3d at 842. It indicated, however, that if an earlier ALJ makes a finding regarding a claimant's RFC, a later ALJ is bound by that RFC determination “absent changed circumstances.” Drummond, 126 F.3d at 842; see also Fish v. Saul, No. 1:20-cv-0143, 2020 WL 5094872, at *3 (W.D. Mich. Aug. 28, 2020) (explaining that under Drummond, a later ALJ is bound by a prior RFC determination “absent evidence to the contrary”) (emphasis added).
Acquiescence Ruling 98-4(6) reconciled the Social Security Administration's policy as to res judicata on one hand with the Sixth Circuit's ruling in Drummond, on the other. See Acquiescence Ruling 98-4(6), 1998 WL 274052 at 29773; Fish, 2020 WL 5094872, at *3-4. It established that, in the Sixth Circuit, an adjudicator making a disability determination for an unadjudicated period must adopt the prior findings in a final decision from the ALJ or Appeals Council unless there is new and material evidence relating to such findings or if there has been a change in the law, regulations, or rulings. See Acquiescence Ruling 98-4(6), 1998 WL 274052, at 29773; Fish, 2020 WL 5094872, at *3-4.
In Earley v. Comm'r of Soc. Sec., the Sixth Circuit clarified the scope of Drummond by acknowledging that “a claim that one became disabled in 1990 is not the same as a claim that one became disabled in 1994.” 893 F.3d 929, 933 (6th Cir. 2018). Earley declared that “[w]hen an individual seeks disability benefits for a distinct period of time, each application is entitled to review. There is nothing in the relevant statutes to the contrary. And res judicata only ‘foreclose[s] successive litigation of the very same claim.'” Id. at 934. Earley entitles a claimant to a “fresh review,” id. at 934, free from “the presumption that the prior RFC remains the correct RFC for the subsequent claim,” See Nadjl v. Comm'r of Soc. Sec., No. 1:21-cv-1578, 2022 WL 2820413, at *9 (N.D. Ohio July 8, 2022); Dilauro v. Comm'r of Soc. Sec., No. 5:19-cv-2691, 2021 WL 1175415, at *3 (N.D. Ohio Mar. 29, 2021). Importantly, the Sixth Circuit also said that “a [f]resh review is not blind review” and that it would be “fair” if an ALJ took the view that, “absent new and additional evidence, the first administrative law judge's findings [were] a legitimate, albeit not binding, consideration in reviewing a second application.” Earley, 893 F.3d at 933-34 (emphasis added). An ALJ “errs only when he considers the previous RFC a mandatory starting point for the analysis.” Gale v. Comm'r of Soc. Sec., No. 1:18-cv-859, 2019 WL 8016516, at *5 (W.D. Mich. Apr. 17, 2019), report and recommendation adopted, 2020 WL 871201 (W.D. Mich. Feb. 21, 2020).
Before Vega filed her present application for supplemental security income under Title XVI, she was denied benefits in prior decisions by ALJ Loesel and ALJ Ma. See Tr. 20, 95. ALJ Ma issued her decision on November 5, 2019, which included the most recent RFC assessment prior to ALJ's Kearney's assessment. See Tr. 20, 120. ALJ Kearney found that there was no reason to reopen the November 5, 2019 decision and thus considered the present application based on a filing date of August 13, 2020. See Tr. 20; see also 20 C.F.R. § 416.330; Terrago v. Comm'r of Soc. Sec. Admin., No. 4:13-cv-1985, 2014 WL 2442233, at *3 (N.D. Ohio May 30, 2014) (the period of time relevant to a Title XVI claim is from the application filing date until the date of the ALJ's decision). The time period relevant to Vega's current claim is thus August 13, 2020, to May 4, 2022. See Tr. 20, 31. This is a distinct from the period at issue in her most recent prior claim, November 29, 2017, through November 5, 2019. See Tr. 95-108. And since “each application is entitled to review,” Earley, 893 F.3d at 933, the relevant question here is whether ALJ Kearney treated the prior RFC findings as a mandatory starting point or considered them along with the rest of his analysis. After reviewing ALJ Kearney's decision, it's clear that the latter is true.
Vega says that the ALJ ignored evidence of her physical and mental decline since 2019 when determining the RFC. See Doc. 7, at 7-8. Vega says she provided objective medical records and testimony documenting “new and material changes in Plaintiff's impairments since her new application was filed.” Doc. 7, at 8. Putting aside the fact that Vega cites the wrong time frame and invokes the wrong standard-under Earley, she must present “new and additional evidence” of changes in her abilities and limitations since the date of the earlier RFC assessment, not, as she says, “new and material changes in her impairments since her new application was filed”-she nonetheless cites foot pain and swelling, difficulty breathing, and increased anxiety and hallucinations since November 2019, that she says warrant a more restrictive RFC. See Doc. 7, at 8.
Vega doesn't explain how this evidence establishes a material change in her physical or mental condition or shows greater functional limitations than she had in November 2019, she merely makes the conclusory statement that it does. Moreover, despite what Vega says, the ALJ explicitly considered the allegations of decline in Vega's conditions since November 2019 and did not ignore her evidence. See Tr. 26-29. The ALJ instead explicitly addressed each allegedly worsened condition and provided his basis for finding that the evidence was insufficient to support a material change or warrant an adjustment to the prior RFC. See Tr. 26-28. As explained below, the ALJ approached his determinations of Vega's physical RFC, mental RFC, and overall disability with a “fresh look” and yet concluded that the prior RFC remained appropriate. See Tr. 21, 27, 28.
For starters, ALJ Kearney said-three times-that he had given the case a “fresh look.” Tr. 21, 27, 28. He noted that he had considered Vega's complete medical history even though he was tasked with determining disability during the more limited period beginning on Vega's August 13, 2020 filing date. See Tr. 20-21 (citing 20 C.F.R. §§ 416.335, 416.912). Before reciting his findings, ALJ Kearney noted that an agency change in the evaluation of musculoskeletal listings meant that he was not bound by the prior RFC findings as to Vega's physical impairments. See Tr. 21. The ALJ also found that although Vega's medically determinable impairments could reasonably be expected to cause her subjective symptoms, Vega's “statements concerning the intensity, persistence, and limiting effects of these symptoms ... [we]re not entirely consistent with the medical evidence and other evidence in the record.” Tr. 26.
Despite Vega's claim that the ALJ disregarded evidence of her worsening foot pain and swelling, he addressed her foot and ankle problems at length. See Doc. 7, at 7-8; Tr. 26. He recited Vega's testimony that “her legs swelled with walking . [and] that she had a plate and screws in her ankle and right foot.” Tr. 26. He noted that that Vega hadn't had new imaging since November 2019, and that the imaging available from before November 2019 did not support her claims of a worsening condition. See Tr. 27. For example, the ALJ cited imaging of Vega's left ankle from March 2019 that showed “progressive healing and internal fixation of the distal fibula.” Tr. 27 (citing Tr. 481). He noted that this “little new evidence” didn't represent a “significant change” as compared to prior imaging. Tr. 27. However scant this evidence was, the ALJ nonetheless found that it undermined Vega's claim of worsening foot and ankle pain since November 2019. See Tr. 27. The ALJ cited treatment notes from March 2019 documenting Vega's left ankle pain, Tr. 27 (citing Tr. 466), and August 2019 notes documenting pain with palpation of her left ankle, laterally, over prominent hardware. Tr. 27. He acknowledged a “history of a bullet wound to the bone graft in 1998 and a ORIF of the left ankle in the early 2000's.” Tr. 27 (citing Tr. 452-505). The ALJ acknowledged “decreased ... range of motion and sensation” in the first metatarsal of Vega's right foot. Tr. 27 (citing Tr. 462). He recited unremarkable examination findings including normal foot strength and range of motion, as well as findings of mild edema in her feet and ankles. Tr. 27. He noted consistency among examination findings during appointments in March and August 2019, and that Vega received injections during both visits. Tr. 27.
The ALJ acknowledged Vega's claims of difficulty breathing, reciting her testimony about COPD and the statement that she kept “an inhaler with her at all times that she used four times a day.” Tr. 26. He referenced treatment notes from October 2019 demonstrating complaints of dyspnea and noting that, nevertheless, Vega continued to smoke cigarettes, see Tr. 27 (citing Tr. 461), and from February 2020 recording an unremarkable physical examination and finding Vega “feeling well,” id (citing Tr. 458).
The ALJ acknowledged Vega's estimated capacity for standing (no more than five minutes), sitting (no longer than 15 to 20 minutes), and walking (“like two seconds,” as far as the distance between her living room and kitchen). Tr. 26. He noted, however, that the most recent imaging of Vega's ankle, from March 2019, documented improvement in her condition and that this was consistent with the results of previous imaging. Tr. 27. The ALJ found that evidence of sustained improvement over more than one set of images did not support Vega's “extreme claims regarding ... [the ability] to sit, stand, or walk or ... [the need] to elevate her legs.” Id.
The ALJ acknowledged Vega's mental impairment claims, including her testimony regarding depression and anxiety. Tr. 26. He recalled Vega's reports of crying a lot, staying in her room, isolating herself, finding it difficult to interact socially, struggling with concentration sometimes, and hearing voices. Id. He said that in the treatment notes, Vega's providers recorded her “at times describe[ing] herself as having some anxiety but also consistently describe[ing] herself as ‘ok.'” Tr. 27. The ALJ found Vega's mental status exanimations “consistently generally unremarkable.” Id.
The ALJ discussed treatment notes from psychiatric medication management and other appointments during 2019. See Tr. 27-28. In specific, the ALJ cited a January 2019 note describing Vega as a “little depressed and anxious” and recording a “fairly unremarkable” mental status examination. Tr. 27 (citing Tr. 348). He noted findings that Vega had a “more appropriate mood” and was well-groomed, cooperative, and without perceptual disturbances. Id. (citing Tr. 348). The ALJ noted that typical findings observed a full affect, sustained concentration and attention, and normal recent and remote memory. Id (citing Tr. 348, 340, 332). Vega continually asserted that she was “doing ok” even as she acknowledged that there were days when she felt anxious, tired of being home, and tired of being incarcerated. Tr. 27-28 (citing Tr. 298, 315, 323, 578). The ALJ considered the fact that Vega's mental status examinations remained “fairly unremarkable” into 2020 and that her providers continued to find that she had sustained concentration and attention as well as normal recent and remote memory. Tr. 28 (citing Tr. 315, 563). The ALJ highlighted Roesner's observations that Vega was laughing on the phone and appeared to be in a good mood. Tr. 28 (citing Tr. 564).
As the Commissioner says, very little of the evidence discussed above pertains to treatment received after November 2019. See Doc. 9, at 7; Tr. 2628. And the ALJ cited what little evidence there was to support his finding that there was not sufficient support for a finding that Vega's mental or physical condition had declined since November 2019, or that she was more limited to such a degree as to warrant deviation from the November 2019 RFC findings. See Tr. 27. The ALJ found “no new and material evidence” of mental impairments and indicated that despite a fresh look, the evidence also did not support changing the prior findings regarding Vega's mental RFC. Tr. 21. He found that the “little new evidence” did not show a material change in physical impairments since the November 2019 physical RFC findings. Tr. 27. The ALJ expressed an understanding that he was not bound by the prior RFC findings and stated that “[n]onetheless, a fresh look at the evidence show[ed] that [the prior RFC findings] remained appropriate.” Tr. 27.
Vega claims that ALJ Kearney applied the wrong standard of review when he considered her application and found “no new and material evidence reflecting a need for a substantial change” in the RFC. Doc. 7, at 6. She says, “Although the ALJ stated that he did not apply Acquiescence Ruling 98-4(6) which is based on Drummond, he still adopted the findings of the prior ALJ” and claims that this was error. See id, at 6. Although Vega doesn't provide a citation to the record for this claim, the only plausible passage to which she could be referring is one in which the ALJ, admittedly, engages in a somewhat concerning discussion of Acquiescence Ruling 98-4(6). See Doc. 7, at 6; Tr. 21.
The ALJ explained that he wasn't bound by Acquiescence Ruling 98-4(6) due to a policy change in the review of musculoskeletal listings. See Tr. 21. He accurately stated that under Acquiescence Ruling 98-4(6), an adjudicator must adopt the final, prior findings of an ALJ “unless there is new and material evidence relating to such a finding or there has been a change in the law, regulations or rulings affecting the finding or the method for arriving at the finding.” Tr. 21 (emphasis added). This does not demonstrate consideration of prior RFC findings as a mandatory starting point for analysis and, in fact, cites directly from the language of Acquiescence Ruling 98-4(6). See Acquiescence Ruling 98-4(6), 1998 WL 274052 at 29773. But the ALJ's framing of the issue in conjunction with repeated references to the lack of evidence in the record to support a finding of significant change in Vega's physical or mental condition or functioning might suggest that the ALJ was following the outdated Drummond standard which bound an ALJ to the prior RFC assessment ‘absent changed circumstances.'” See Drummond, 126 F.3d at 840-42; Fish 2020 WL 5094872, at *5.
Despite a concerning start, however, as discussed, the ALJ did not ultimately apply the Drummond standard. See Tr. 25-29. He demonstrated a thorough review of the record and well-reasoned consideration of Vega's present application free from any presumptive acceptance of the prior RFC findings. See Tr. 25-26, 27, 28; Nadjl, 2022 WL 2820413, at *9. The ALJ's decision shows that, as he said, he gave a “fresh look” to the case and provided adequate support for his finding nonetheless that the evidence did not support any deviation from the prior RFC assessment. See Tr. 25-26, 27, 28.
In addition to the objective medical and testimonial evidence, the ALJ found persuasive the medical opinions of the state agency consultants which offered additional support for his RFC. See Tr. 28-29. Vega objects to the ALJ's reliance on these opinions, alleging that the “opinions of the State Agency reviewing sources ... violated the law in this matter and relied on the prior ALJ's findings.” Doc. 7, at 9. Her opposition to these medical opinions fails, however, because as long as an ALJ discusses the factors of supportability and consistency in finding a medical opinion persuasive, it simply isn't error for the ALJ to rely on that medical opinion to support an RFC assessment. See Cormany v. Kijakazi, No. 5:21-cv-933, 2022 WL 4115232, at *3 (N.D. Ohio Sept. 9, 2022) (citing cases); Toennies v. Comm'r of Soc. Sec., No. 1:19-cv-226, 2020 WL 2841379, at *14 (N.D. Ohio June 1, 2020) (internal quotation marks and citation omitted) (“A reviewing court evaluates whether the ALJ properly considered the factors as set forth in the regulations to determine the persuasiveness of a medical opinion.”); see also 20 C.F.R. § 416.920c(a), (c)(1)-(5). And the prior administrative findings of a state agency consultant are proper substantial evidence. See, e.g., Watts v. Comm'r of Soc. Sec., 179 Fed.Appx. 290, 294 (6th Cir. 2006); Moats v. Comm'r of Soc. Sec. Admin., No. 3:20-cv-265, 2021 WL 2905079, at *17 (N.D. Ohio Jan. 8, 2021) (a state agency examiner's opinions are substantial evidence), report and recommendation adopted 2021 WL 2216804 (N.D. Ohio June 2, 2021), aff'd, 42 F.4th 558 (6th Cir. 2022), cert. denied, 143 S.Ct. 785 (2023).
Regarding the opinions of physicians Dr. Bolz and Dr. Manos, the ALJ stated that although the prior physical RFC findings were not binding, a “fresh look” at the evidence nonetheless showed that they remained appropriate. See Tr. 28. The ALJ observed that the opinions of Doctors Bolz and Manos were consistent with the evidence previously discussed in the decision. See, e.g., Tr. 28 (citing Tr. 458, 461, Hearing Testimony) (referencing Vega's testimony that she had health insurance coverage and medical records discussing Vega's continuing to smoke despite complaints of dyspnea, unremarkable physical examination results, and reports that she was feeling well).
As to the opinions of psychologists Dr. Dietz and Dr. Rivera, the ALJ found that they were consistent with the evidence “explored” earlier in his decision. Tr. 29. He noted that Dr. Dietz found moderate limitations in each of the four areas of vocationally relevant mental functioning, adopting the findings of the prior ALJ. Tr. 28. (citing Tr. 120-27). ALJ Kearney recited some of Dr. Dietz's mental RFC findings in specific, such as limitations to simple, routine tasks, no fast pace or production quotas, a workplace with infrequent changes that could be explained, no more than superficial interaction, and low stress work. Tr. 28-29 (citing Tr. 123-25, 129-35). The ALJ noted that Vega “consistently referred to herself as ‘ok' and had generally unremarkable mental status notes.” Tr. 29. He discussed a telehealth visit Vega had with Roesner in April 2020 during which Vega said she was doing okay and was tired of being at home. Tr. 29 (citing Tr. 563). The ALJ observed that Vega's mental status notes remained consistent throughout the record highlighting April 2020 as no different. See Tr. 29. He noted Roesner findings of cooperative behavior, normal recent and remote memory, sustained attention and concentration, and an affect with a full range. Id (citing Tr. 563) The ALJ cited Roesner's observations of Vega's laughter and apparent good mood. Id (citing Tr. 564).
In this way, the ALJ addressed the factors of supportability and consistency in finding the opinions of the state agency consultants persuasive. See Tr. 28-29. Although the doctors recited previous RFC findings without reference to specific evidence, as discussed, there was very little relevant objective medical evidence in the record on which they could rely. See Tr. 29. And, as the ALJ points out, what little evidence the record did contain was consistent with the adopted RFC findings. See id. So despite what Vega says, ALJ Kearney established an adequate foundation to support finding the opinions of the state agency consultant doctors' opinions persuasive and thus permissibly relied on them to support his RFC. See Tr. 25-26, 28-29.
If, as the ALJ determined, there was indeed very little evidence in the record to support a material change in Vega's physical or mental condition or functioning since November 2019, see Tr. 20-21, 26-29, 108, the ALJ would have been left to assess an RFC based on a record that was essentially the same as one on which the prior ALJ based her RFC findings. It's thus no surprise that the prior ALJ's RFC findings remained appropriate and applicable to the present application. See Tr. 21, 27, 28. Moreover, as the Sixth Circuit said in Earley, “it [would be] fair for an [ALJ] to take the view that, absent new and additional evidence, the first [ALJ's] findings [were] a legitimate, albeit not binding, consideration in reviewing a second application.” Earley, 893 F.3d at 934. ALJ Kearney thus fairly took the view that the prior ALJ's findings were a legitimate, albeit not binding, consideration as he reviewed the evidence in Vega's present application. See Tr. 20-21.
As the ALJ showed, it was the evidence-not Acquiescence Ruling 984(6) or Drummond or Dennard-that led him to conclude that the record did not support deviating from the prior RFC findings. See Tr. 20-21, 27, 28. He thus assessed an RFC that reflected as much. See Tr. 25-26. And while ALJ Kearney crafted an RFC which was identical to the prior ALJ's RFC, he nonetheless complied with relevant agency regulations, principles of res judicata, and Sixth Circuit jurisprudence. See Tr. 20-21, 25-29. Vega hasn't met her burden to show otherwise and cannot establish error simply due to the fact that ALJ Kearney assessed an RFC that mirrors the RFC assessed by a prior ALJ. As such, Vega is not entitled to remand.
2. Whether substantial evidence exists in the record to support the ALJ's RFC determination that Vega was capable of work at a medium level of exertion.
As discussed, ALJ Kearney's RFC findings mirror those of the prior ALJ, including a limitation to work at no more than a medium level of exertion. See Tr. 25-26, 95. Vega says that the record contains evidence that establishes worsening conditions and greater limitations since the prior ALJ's RFC assessment in November 2019. See Doc. 7, at 10-11. On this basis, Vega argues that ALJ Kearney was obligated to find her capable of a lower maximum level of exertion than the previously determined medium level. Id, at 10-11. The Commissioner says that Vega hasn't presented evidence establishing escalating symptoms or greater limitations. See Doc. 9, at 6 (citing Doc. 7, at 11-12; Tr. 461, 462). He says that her “meag[er]” evidence-self-reported testimony “plus records from August and October 2019” showing complaints of shortness of breath and ankle pain-offers little value and moreover, pre-dates the issuance of the prior ALJ's decision. Id, at 7. The Commissioner argues that Vega's subjective testimony and complaints are not enough to “undermine the substantial evidence cited by the ALJ” in reaching a different conclusion as to Vega's functioning. Id, at 7.
On factual and procedural grounds, Vega's argument fails.
Vega ignores the standard of review and invites the Court to reweigh the evidence, which it cannot do. See Rottmann v. Comm'r of Soc. Sec., 817 F. App'x. 192, 196 (6th Cir. 2020). As was discussed with respect to Vega's first issue, the ALJ adequately explained his rationale in discounting Vega's subjective allegations about the severity and persistence of her symptoms and the degree of limitation resulting therefrom. See Tr. 26-28. He explained his finding that there was limited objective evidence of treatment after November 2019 and that this hadn't established a material decline in Vega's physical or mental condition and didn't show greater limitations in functioning. See Tr. 28-29. The ALJ thus supported his findings with substantial evidence in the record.
Vega asserts that there is substantial evidence to support a finding that she was only capable, at most, of a less-than-medium level of exertion. See Doc. 7, at 10. Whether, however, such evidence might be found is irrelevant because Vega hasn't shown that the ALJ's finding-that she was capable of a medium level of exertion-was not supported by substantial evidence. Vega hasn't shown any flaw in the ALJ's logic or demonstrated that his conclusions were based on less than substantial evidence. Vega may not agree with the ALJ's designated exertional level, but disagreement does not “provide a basis for remand.” Steed v. Colvin, No. 4:15cv01269, 2016 WL 4479485, at *10 (N.D. Ohio Aug. 25, 2016).
Vega also claims that one of the reasons the ALJ erred in his RFC finding was because he did not include the use of a cane for ambulation. Doc. 7, at 12. She says, without citing the record, that “the ALJ opined a cane was needed for ambulation.” See id. But the ALJ did not say this. And, moreover, Vega never testified that she needed or used a cane. The notes of the state agency consultative physicians refer to the use of a cane, but the physicians counters this reference by pointing to the objective medical evidence and noting that it contains findings of a normal range of motion “throughout.” See Tr. 121, 124, 132. Medical records from January 2019 show that Vega asked for a cane and her doctor obliged, even as he found she had a normal gait. See Tr. 47071. In the November 2019 decision, ALJ Ma discussed Vega's use of a cane, see Tr. 101-02, but ultimately determined that the record did not support a medical necessity for any assistive device, Tr. 104.
The Commissioner says that “the ALJ asked a hypothetical question of the vocational expert that included the need for a cane,” see Doc. 9, at 7-8, n.2, however, the ALJ did not reference the use of a cane in any of his hypothetical questions.
So it's true that there is some evidence in the record showing that Vega used a cane. There is, however, no evidence establishing whether she used a cane for ambulation during the present application period and none showing the degree to which, if any, she needed assistance to walk. What's more, there is ample evidence to support the rejection of the use of a cane as a necessary limitation. See Tr. 95, 101-02, 104, 121, 124, 132, 470-71. The ALJ didn't include the use of a cane in the RFC, however, he wasn't obligated to do so. See Grim v. Colvin, No. 5:12-cv-2801, 2013 WL 5316346, at *7 (N.D. Ohio Sept. 23, 2013) (“Because an ALJ is only required to incorporate in the RFC or hypothetical those limitations that he or she accepts as credible, the ALJ did not err by omitting pace-based restrictions.”); Walker v. Berryhill, No. 3:161231, 2017 WL 6492621, at *6 (M.D. Tenn. Dec. 19, 2017) (“The ALJ therefore gave Plaintiff the benefit of the doubt that she was somewhat impaired with respect to [concentration, persistence, and pace], but this did not require the ALJ to adopt any additional [concentration, persistence, and pace] limitations”), report and recommendation adopted, 2018 WL 305748 (M.D. Tenn. Jan. 5, 2018); see also Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993) (“It is well established that an ALJ may pose hypothetical questions to a vocational expert and is required to incorporate only those limitations accepted as credible by the finder of fact”).
Substantial evidence in the record supports the ALJ's RFC finding that Vega was capable of labor at a medium exertional level and the ALJ didn't err by not including a limitation based on the use of a cane.
Conclusion
For the reasons explained above, I recommend that the Court affirm the Commissioner's decision.
OBJECTIONS
Any objections to this Report and Recommendation must be filed with the Clerk of Court within 14 days after the party objecting has been served with a copy of this Report and Recommendation. 28 U.S.C. § 636(b)(1). Failure to file objections within the specified time may forfeit the right to appeal the District Court's order. See Berkshire v. Beauvais, 928 F.3d 520, 530-531 (6th Cir. 2019)