Doris A. POE, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
No. 08-5912.
United States Court of Appeals, Sixth Circuit.
Aug. 18, 2009.
342 Fed. Appx. 149
Before: KEITH, CLAY, and GIBBONS, Circuit Judges. KEITH, Circuit Judge.
The issue of whether Discover subjectively believed that Mrs. MacDermid‘s actions were criminal is ultimately immaterial to the outcome of this appeal. Because we sit in diversity, we must apply Tennessee law. See Uhl, 512 F.3d at 302. As noted above, the evaluation of evidence for probable cause is an objective analysis which occurs through the perspective of the “ordinarily prudent person.” See Roberts, 842 S.W.2d at 248. Given that the existence of probable cause defeats a claim of malicious prosecution in Tennessee even when the prosecution was made with malice, see id. at 247-48, Ms. Gilmore‘s state of mind does not raise a factual question whose resolution warrants reversal of summary judgment.
E. Conclusion
Analysis of the facts in light of the standard of review on summary judgment demonstrates that probable cause clearly existed to prosecute Mrs. MacDermid under
IV.
Accordingly, for the reasons stated above, we AFFIRM the district court‘s decision to deny Plaintiff‘s Motion to Alter or Amend.
I.
Poe was born on March 9, 1955. She attended high school up to the ninth grade, and later obtained a general equivalency diploma (GED). For approximately 25 years, Poe worked as an operator in a factory that manufactures rubber extrusion used to seal car windows. The job required Poe to run machines and punch presses, package the finished parts in boxes, and lift boxes that weighed between fifty and seventy pounds. Poe‘s employment at the factory ended on or around April 1, 2003, for reasons related to her alleged disability.
Poe applied for disability insurance and SSI benefits on April 18, 2003, alleging disability as of April 1, 2003. Specifically, Poe alleged that she could not lift boxes and keep up with her production quota due to physical disabilities, including her left hip “giv[ing] out,” pain in her lower back, and numbness in her hands and feet, causing her such stress that she would cry. After her application was denied initially and on reconsideration, Poe requested a
In accordance with the district court‘s remand, a second hearing was held before the ALJ on July 31, 2006. On December 1, 2006, the ALJ once again issued an unfavorable decision, finding that Poe was not disabled. On June 12, 2007, the Appeals Council issued its decision, declining to assume jurisdiction, thereby rendering the ALJ‘s December 1, 2006 determination the final decision of the Commissioner.
Poe appealed the ALJ‘s second denial to the district court and, on May 21, 2008, the court issued an order and opinion affirming the ALJ‘s determination. See Poe v. Astrue, No. 07-CV-253-GWU, 2008 WL 2151999, at *3 (E.D.Ky. May 21, 2008) (“Poe II“). Poe filed a timely appeal with this Court.
II.
A. Relevant Medical History
In 2002, after complaining of tingling and weakness in both hands, and discomfort in her lower back, Poe was referred to a neurologist, Dr. William Blake. On September 3, 2002, Dr. Blake performed a nerve conduction study on Poe, which showed evidence of mild carpal tunnel syndrome in both hands. He ordered lower back x-rays and treated Poe with wrist splints. On March 1, 2003, a second nerve conduction study performed on Poe by Dr. Blake showed signs of improvement in both hands.
On July 31, 2003, Dr. Michael A. Boyd, Poe‘s treating physician, presented medical records to the Commissioner describing his treatment of Poe from June 28, 2001 through July 24, 2003. According to Dr. Boyd‘s records, Poe complained of right shoulder pain on November 23, 2001, but maintained a full range of motion with slight tenderness. However, during two subsequent examinations, on December 5, 2001 and on September 11, 2002, Poe did not complain of shoulder, back, wrist or hand pain. On September 20, 2002, Poe visited Dr. Boyd to obtain a tuberculosis test because she was preparing to set up a day care center. In his report detailing Poe‘s September 20, 2002 visit, Dr. Boyd discussed the results of the lower back x-rays ordered by Dr. Blake and noted that Poe appeared to be “doing quite well.”
On November 25, 2002, Poe complained of tenderness and muscle spasms in her neck, but exhibited no signs or complaints of numbness or tingling. Additionally, Dr. Boyd found no evidence of abnormalities in Poe‘s extremities. On three subsequent visits to Dr. Boyd (December 8, 2002, January 29, 2003, and March 12, 2003), Poe made no mention of tenderness or muscle spasms. During Poe‘s March 12, 2003 visit with Dr. Boyd she complained of lower
On June 17, 2003, Poe complained of numbness in her hands, which Dr. Boyd opined was “probably carpal tunnel.” Following an examination of Poe on July 3, 2003, Dr. Boyd noted, “[Poe] said she has not been able to work since April and the real problem is that she has gone ahead and filed disability.... I talked to her about the application for disability. I didn‘t think she was really a candidate at this point in time.”
On September 4, 2003, Poe was referred for consultation with a rheumatologist, Dr. Manoj Kohli. According to Dr. Kohli, Poe maintained a good range of movement in her shoulders, elbows, wrists, fingers, hips, knees, and ankles. Dr. Kohli‘s assessment of Poe indicated she suffered from fibromyalgia, depression, sleep dysfunction, and mild carpal tunnel syndrome. He prescribed daily stretching and aerobic exercises. On October 30, 2003, Dr. Kohli noted an overall improvement in Poe‘s condition, as a result of physical therapy and the use of wrist splints.
An MRI of the cervical spine performed on Poe on February 19, 2004, revealed “multi-level degenerative changes ... leading to mild spinal canal stenosis at the C5-6 and the C6-7” vertebrae. As a result, Dr. Boyd referred Poe to Dr. Brett Scott for a neurological evaluation. During her visit with Dr. Scott, on April 10, 2004, Poe complained of neck pain radiating into the shoulders. Dr. Scott noted, however, that Poe “does not really have any arm pain, weakness or numbness.” Dr. Scott recommended range-of-motion exercises for the neck. On February 22, 2005, Dr. Scott noted a decreased range of motion in Poe‘s neck, as compared to his April 2004 examination. Dr. Scott also observed a “frozen” left shoulder, which Poe could not abduct more than ninety degrees without experiencing some pain. However, Dr. Scott noted that Poe‘s right shoulder was normal; that she maintained a normal gait and coordination; and that she had normal reflexes in her biceps, triceps, knees, and ankles, as well as normal strength and sensation in her arms and legs. In his final examination of Poe, on March 18, 2005, Dr. Scott noted no change in Poe‘s condition.
On May 11, 2005, Dr. Charlotte Harris performed surgery on Poe to “decompress her left carpal tunnel.” On May 20, 2005, Dr. Harris noted that the “numbness and burning in [Poe‘s] hand is dramatically better.” However, on June 17, 2005, Poe returned to Dr. Harris complaining of significant shoulder pain. An x-ray revealed “minimal AC spurring and hook[ing]” in the AC joint of Poe‘s left shoulder. Consequently, Dr. Harris recommended a course of physical therapy.
On August 24, 2006, Dr. Boyd completed a questionnaire designed to assess Poe‘s physical abilities and limitations. Dr. Boyd stated that his findings were based on a physical examination. However, Poe did not submit a record of such examination. In his findings, Dr. Boyd stated that Poe could lift no more than ten pounds, nor could she stand or walk more than two hours in an eight-hour workday. He further stated that Poe was capable of frequent balancing as well as occasional stooping, crouching, kneeling, and climbing, but no crawling. Finally, Dr. Boyd noted that Poe‘s ability to reach, pull, handle, finger, feel, and push were all limited.
B. The ALJ Hearing
At her July 2006 hearing, in addition to testifying that she voluntarily left her job in April 2003 because of back problems which precluded her from lifting, Poe testified that she suffered difficulties and experienced pain and other symptoms associat
In addition to her own testimony, Poe presented extensive medical records which confirmed that she had carpal tunnel syndrome and mild impingement syndrome in her left shoulder, a history of right shoulder pain, a diagnosis of fibromyalgia by a rheumatologist, and a diagnosis of depression by a psychiatrist. Poe also presented a functional capacity assessment by her treating family physician, Dr. Boyd, which essentially limited Poe to less than full-time sitting or standing. In a written statement, Dr. Boyd noted that his “findings are subjective based on physical exam and interview with patient” and that “should objective findings be necessary, [I] recommend [a] work hardening evaluation.” Ultimately, the ALJ afforded Dr. Boyd‘s opinion “little weight” because it was “based upon [Poe‘s] subjective complaints without the benefit of objective data.”
Poe presented other evidence of functional restrictions from state agency reviewing sources. On June 8, 2003, Dr. Carlos Hernandez, a state agency medical consultant, reviewed the record and concluded that Poe could lift and carry fifty pounds occasionally, twenty-five pounds frequently, and sit, stand, and walk for up to six hours in an eight-hour work day. Dr. Hernandez also limited Poe to no more than frequent bilateral handling, and recommended that Poe avoid even moderate exposure to vibratory tools. On August 13, 2003, a second state agency medical consultant, Dr. James Ramsey, reviewed the record and reached the same conclusion as Dr. Hernandez. These findings by Dr. Hernandez and Dr. Ramsey were consistent, albeit less restrictive, than the ALJ‘s ultimate finding.
At Poe‘s July 2006 administrative hearing, the ALJ found that Poe indeed suffered from “severe impairments,” including, “chronic neck and low back pain due to degenerative disc disease of the cervical and lumber spine with arthritis of the facet joints; mild bilateral carpal tunnel syndrome; gastroesophageal reflux disease; biliary dyskinesia; multiple arthralgias, rule out fibromyalgia; and depression.” However, the ALJ determined that although Poe had “severe impairments,” her claims regarding her limitations were “not entirely credible” and found that Poe retained the residual functional capacity to perform a significant number of jobs existing in the national economy.
At the conclusion of the hearing, the ALJ asked the vocational expert to consider a hypothetical individual with the residual functional capacity attributed to Poe in the ALJ‘s decision. Specifically, the ALJ asked the vocational expert whether a person of Poe‘s age, education, and work experience could perform jobs if she were capable of either light or sedentary exertion, and also had the following non-exertional restrictions: (1) could not climb ladders, ropes, or scaffolds; (2) could not work with her hands above shoulder level; (3) could occasionally flex and extend her wrists, perform occasional handling or gripping, and occasional pushing and pulling with her upper extremities; (4) could have no exposure to concentrated vibration or vibratory hand tools; (5) could occasionally bend, twist, or crawl;
The vocational expert responded that while such person could not perform any of Poe‘s past relevant work, there were jobs he or she could perform—“basically entry level, low stress jobs” where there were “no frequent changes in work routine[,][] no rigid production schedules[,] and no fast-paced assembly line work activities.” Specifically, the vocational expert testified that such an individual could perform the following occupations as defined in the DOT: (1) counter clerk (light exertion level, DOT code 249.366-010); (2) monitor (light duty job, DOT code 372.667-0402); (3) surveillance security monitor (sedentary job, DOT code 379.367-010); (4) attendant-related job (light in exertion, DOT code 349.677-018); (5) usher (light in exertion, DOT Code 344.677-014); and (6) machine tending jobs (light in exertion, DOT code 728.685-010).
III.
Judicial review of the Commissioner‘s decision that a claimant is not disabled is limited to determining whether the ALJ applied the correct legal standard in reaching his decision and whether such determination is supported by substantial evidence in the record as a whole.
“Substantial evidence exists when a ‘reasonable mind might accept the relevant evidence as adequate to support a conclusion.‘” Warner v. Comm‘r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (quoting Kirk v. Sec‘y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981)). The Court must defer to the Commissioner‘s decision “even if there is substantial evidence in the record that would have supported an opposite conclusion, so long as substantial evidence supports the conclusion reached by the ALJ.” Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997). In deciding whether substantial evidence supports the ALJ‘s decision, this 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).
IV.
Poe raises three issues on appeal. She argues: (1) the ALJ erred in his determination of her residual functional capacity by failing to accord the proper weight to the opinion of her treating physician and by acting as his own medical expert in rendering a residual functional capacity assessment without proper consideration of the medical opinions of record; (2) the ALJ‘s determination that Poe can make an adjustment to other work available in the national economy is not supported by substantial evidence in light of the vocational expert‘s testimony and “fatal flaws” in some of the vocational evidence; and (3) the district court engaged in prohibited
The Social Security Act defines disability 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.”
An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.
To determine if a claimant is disabled within the meaning of the Act, the ALJ must follow a five-step analysis, as set forth in
- A claimant who is engaging in substantial gainful activity will not be found to be disabled regardless of medical findings.
- A claimant who does not have a severe impairment will not be found to be disabled.
- A finding of disability will be made without consideration of vocational factors, if a claimant is not working and is suffering from a severe impairment which meets the duration requirement and which meets or equals a listed impairment in Appendix 1 to Subpart P of the Regulations. Claimants with lesser impairments proceed to step four.
- A claimant who can perform work that he has done in the past will not be found to be disabled.
- If a claimant cannot perform his past work, other factors including age, education, past work experience and residual functional capacity must be considered to determine if other work can be performed.
Cruse v. Comm‘r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007) (citing Wyatt v. Sec‘y of Health & Human Servs., 974 F.2d 680, 683-84 (6th Cir. 1992)).
The claimant bears the burden of proof at steps one through four. Warner, 375 F.3d at 390. At step five, however, the burden shifts to the Commissioner to identify “a significant number of jobs in the economy that accommodate the claimant‘s residual functional capacity (determined at step four) and vocational profile.” Jones, 336 F.3d at 474. In the instant appeal, it is undisputed that Poe can no longer perform her past work. Thus, this Court‘s analysis centers on whether substantial evidence supports the ALJ‘s determination that, based on Poe‘s residual functional capacity, age, education, and work experience, she can make an adjustment to other work available in the national economy. See
A. Residual Functional Capacity
Residual functional capacity is defined as the most a claimant can still do despite the physical and mental limitations resulting from her impairments. See
Poe argues that the ALJ‘s residual functional capacity determination is not supported by substantial evidence because the ALJ failed to accord proper weight to Dr. Boyd‘s opinion, in violation of the “treating physician” rule set forth in
Pursuant to the Social Security regulations, the ALJ is required to evaluate every medical opinion and consider the following non-exhaustive factors in deciding what weight to give each opinion: examining relationship, treatment relationship, the extent to which medical signs and laboratory findings support the opinion, the consistency of the opinion with the record as a whole, and the specialization of the doctor rendering the opinion.
Here, substantial evidence supports the ALJ‘s determination that the opinion of Dr. Boyd, Poe‘s treating physician, was not entitled to deference because it was based on Poe‘s subjective complaints, rather than objective medical data. Moreover, Dr. Boyd‘s opinion is inconsistent with the record as a whole and, arguably, not even supported by his own treatment notes. For example, although Dr. Boyd claimed that his August 24, 2006 conclusions regarding Poe‘s residual function assessment were based on a physical examination as well as an interview with Poe, there is no evidence of a physical examination on or around that date. In fact, the final medical record received from Dr. Boyd was dated July 3, 2003, and reflected Dr. Boyd‘s express opinion that Poe was not a candidate for disability. Poe presented no other objective medical evidence to explain how or why, in Dr. Boyd‘s opinion, Poe was not a candidate for disability in July 2003, but degenerated to the point of being unable to perform sedentary work by August 2006. Moreover, the limitations pro
Poe further argues that the ALJ improperly based his residual functional capacity finding on his own interpretation of the medical evidence. In determining Poe‘s residual functional capacity, the ALJ found that “[a]fter listening to claimant‘s testimony, observing her demeanor and observing said testimony in light of the objective medical records, it appears that the claimant is trying to make her symptoms sound significantly more severe than they actually are.” In support of her contention, Poe argues that “[t]he ALJ does not cite any medical opinion to explain of [sic] the medical findings, but bases the [residual functional capacity] determination on his own interpretation of the medical evidence, inferences he draws from the nature and extent of the claimant‘s daily activities, as well as his keen knowledge of human nature.” Poe‘s contention is belied by the record.
The responsibility for determining a claimant‘s residual functional capacity rests with the ALJ, not a physician. See
B. Vocational Expert
As noted above, at step five of the assessment, the ALJ must determine whether a claimant‘s residual functional capacity will allow her to perform a significant number of jobs in the national economy. See
Here, based in part on the testimony of the vocational expert, the ALJ determined that although Poe could not perform her past relevant work, she retained the residual functional capacity to perform a significant number of jobs in the national economy and therefore was not disabled. The vocational expert testified that a hypothetical individual with the residual functional capacity ultimately adopted by the ALJ could perform the following occupations as defined in the DOT: (1) counter clerk, (2) security monitor, (3) surveillance security
Poe‘s numerous attempts to undermine the credibility of the vocational expert‘s testimony by asserting that the performance requirements of the jobs listed by the vocational expert, with the possible exception of the “attendant/usher” jobs, are inconsistent with the mental and/or physical limitations, are not persuasive. For example, Poe argues that the job of counter clerk is inconsistent with the mental limitations adopted in the hypothetical posed by the ALJ. In support of her contention, Poe offers the testimony of her own vocational expert, Robert E. Breslin (“Breslin“),6 who, referring to the Occupational Outlook Handbook (rather than the DOT), opined that the position of counter clerk was not one of “routine work” as posited in
Poe‘s arguments that the requirements for the surveillance security monitor and the machine tender jobs are inconsistent with the physical limitations adopted in the hypothetical posed by the ALJ are similarly unavailing. For example, Poe‘s challenge to the job of surveillance security monitor is rooted in the premise that the ALJ found her capable of performing limited sedentary work only. However, the ALJ found Poe capable of performing both
Accordingly, we find that substantial evidence supports the ALJ‘s residual functional capacity finding, as well as his conclusion that Poe can perform a significant number of jobs in the national economy and therefore was not disabled.
C. Post Hoc Rationalization
Finally, Poe argues that the district court impermissibly used post hoc rationalizations, substituting its own “revised rationale” to uphold the decision of the Commissioner. Because a review of the record clearly shows that the ALJ‘s decision is supported by substantial evidence, as discussed herein, we need not address these alleged errors.8 See Pasco v. Comm‘r of Soc. Sec., 137 Fed.Appx. 828, 847 (6th Cir. 2005) (“Having conducted our own review of the ALJ‘s decision and found it supported by substantial evidence, we need not address [claimant‘s] allegations that the district court impermissibly used post-hoc rationalizations to uphold the ALJ‘s decision.“)
V. CONCLUSION
For the aforementioned reasons, we AFFIRM the district court‘s decision.
DAMON J. KEITH
UNITED STATES CIRCUIT JUDGE