Opinion

Kidder v. Commissioner of Social Security

Court
District Court, S.D. Ohio
Filed
Sep 1, 2020
Cited by
0 cases
Authority
More cited than 28.2%

The opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

MICHELLE L. KIDDER,

Plaintiff,

Case No. 1:18-cv-661

v. JUDGE DOUGLAS R. COLE

Magistrate Judge Bowman

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

ORDER

This cause comes before the Court on Plaintiff Michelle L. Kidder’s Objection

(Doc. 15) to Magistrate Judge Bowman’s Report and Recommendation (“R&R”)

(Doc. 14), which recommends that this Court affirm the Administrative Law Judge’s

(“ALJ”) finding that Kidder does not qualify for disability insurance benefits. For the

reasons stated more fully below, the Court OVERRULES Kidder’s Objection,

ADOPTS Magistrate Judge Bowman’s R&R, and AFFIRMS the ALJ’s finding.

Accordingly, the Court DISMISSES WITH PREJUDICE Kidder’s Complaint

(Doc. 1) and DIRECTS the Clerk to enter judgment.

BACKGROUND

This case arises from the denial of Kidder’s application for disability insurance

benefits, which Kidder filed with the Social Security Administration on April 16,

2015. (Doc. 7-3 at #125). In that application, she alleges that she had been under a

“disability” since March 12, 2014.1 (Id.). Kidder asserted that she was disabled due to

rheumatoid arthritis, cervical degenerative disc disease, obesity, carpal tunnel

syndrome in both hands, chondromalacia in her left knee, depression, and anxiety.

(Id. at #126; see also Doc. 7-2 at #72).

The Social Security Administration denied her claim upon initially reviewing

it and then again after reconsidering that initial decision at Kidder’s request. (Doc. 7-

2 at #72). After the Administration denied her Application, Kidder filed a request for

an ALJ to review the Administration’s decision on April 7, 2016. (Id.).

On August 30, 2017, about 16 months after Kidder filed her request, the

assigned ALJ held a hearing in Dayton, Ohio. (Id. at #69). Kidder appeared at the

hearing, represented herself without counsel, and testified on her own behalf. (Id.).

By way of background, Kidder testified at the hearing that she is 5’ 2.5” tall,2 weighs

220 pounds, was born in 1972 (and so she was 44 years old when the hearing

occurred), graduated from high school and briefly enrolled in college, and worked as

a licensed practical nurse (“LPN”) until she quit in March 2014. She says she quit

because she tore the meniscus in her left knee and developed arthritis there. (Id. at

#72, 74, 92–95). Kidder also stated that she had divorced her second husband around

the time that she had experienced problems in her knee, and that he had moved out

1 The R&R stated that Kidder alleges her disability began on March 12, 2004. (R&R at 1,

#983). Because the record shows that Kidder alleges a disability onset date of March 12, 2014

(Doc. 7-2 at #73), however, the onset date in the R&R is clearly a typographical error.

2 Although the ALJ wrote in the Decision that Kidder testified at the hearing that she is 52

inches (i.e., 4’4” tall), Kidder’s medical records show that her height is actually 5’3” (i.e., she

is roughly 63 inches tall). (R&R at n.1, #72). And the hearing transcript indicates that Kidder

actually testified she is 5’ 2.5” tall. (Doc. 7-2 at #92). So, it seems that the portion of the ALJ’s

Decision about Kidder’s testimony on her height is a typographical error.

of their home in May 2015. (Id. at #93). Kidder further testified that, at the time of

the hearing, she lived with her son. According to Kidder, her son was then a teenager,

homeschooled, and also had medical issues. (Id. at 110–11). She explained that she

provided care to her son and helped him with his schoolwork. (Id. at #110).

As for Kidder’s medical care, Kidder testified that she sees a rheumatologist,

Dr. Kimberly S. Hendricks, for her arthritis, and she takes medications that decrease

the swelling in some of her joints but increase it in others. (Id. at #97–100). She said

that she did not, however, take any narcotic medications for pain. (Id. at #100).

Rather, Kidder said, she underwent physical therapy for her back and neck pain,

which her doctor told her did not require surgery. (Id. at 98–99). Kidder testified that

she had undergone surgery for her carpal tunnel syndrome in 2016, but still

experienced some lingering effects from that procedure. (Id. at #101). Kidder also

noted she takes Xanax and Effexor for depression, but had not sought psychological

counseling or required any hospitalization for that condition. (Id.).

Given her physical conditions, Kidder explained that if she sat too long then

her ankles would swell and her hips would hurt, and she would experience neck pain

whenever she looked down. (Id. at #99–100). Despite those issues, Kidder testified

that she could walk a half-block without pain, lift ten pounds with each arm, and was

able to cook, clean, shop for groceries, and attend church. (Id. at #104–06). Consistent

with Kidder’s testimony, the ALJ noted during the hearing that Kidder’s medical

records indicate that she had been diagnosed with rheumatoid arthritis and carpal

tunnel syndrome. (Id. at #73, 99–100).

After Kidder testified, a court-appointed vocational expert, Brian L. Womer,

testified at the hearing. (Id. at #112). The ALJ asked Womer various hypothetical

questions about the types of jobs that someone with conditions like Kidder’s could

perform. (Id. at #112–14). Based on his experience in vocational rehabilitation,

education, research, and training, Womer testified that a hypothetical individual

with Kidder’s vocational profile, including the additional specific functional

limitations that the ALJ had found appropriate for Kidder, could still perform as

many as 3,380,000 unskilled jobs in the national economy that required, at most,

“light” or “sedentary” levels of exertion. (Id. at #80, 81, 113–16). Womer then

identified examples of those jobs, which included office helper, cashier, housekeeper,

food order clerk, and telephone quote clerk. (Id. at #80, 113–16).

In addition to testimony from Kidder and Womer, the record evidence

submitted to the ALJ included the written opinions of three non-treating physicians.

(Id. at #73–74). Each physician had evaluated Kidder’s medical records for the

Administration prior to Kidder’s initial and reconsideration proceedings of her

Application. (Id. at #76). Two of those three submitted opinions as to Kidder’s physical

capabilities. (Id.). Both of those non-treating physicians opined that, given Kidder’s

specific physical limitations, she could perform “light” work activity, which included:

using her lower left extremity for foot controls “occasionally”; climbing ramps and

stairs “frequently”; climbing ladders, ropes, and scaffolds “occasionally”; kneeling,

crouching, and crawling “occasionally”; and “avoiding” concentrated exposure to

extreme cold, vibrations, and hazards, such as unprotected heights and commercial

driving. (Doc. 7-3 at #125–38, 140–54).

About four months after the hearing, on December 26, 2017, the ALJ issued

her Notice of Decision, which found that Kidder does not qualify for disability

insurance benefits as she is not “disabled.” (Doc. 7-2 at #66, 71). The ALJ did not

dispute that the severe impairments that Kidder alleged in her application are both

“medically determinable” and severe enough to prevent her from performing her

previous job as a home nurse. But the ALJ found that Kidder’s “residual functional

capacity” (“RFC”)—i.e., her ability to perform sustained, work-related physical and

mental activities in a work setting on a regular and continuing basis—combined with

her age, education, and work experience, meant Kidder’s impairments are not severe

enough to prevent her from engaging in “substantial gainful activity” that is

necessary to perform certain jobs available in the regional or national economies. (Id.

at #69–81).

Relevant here, the ALJ concluded that Kidder has an RFC for “light” work, as

defined by 20 C.F.R. § 404.1567(b). (Id. at #75). To make that finding, the ALJ relied

on the two non-treating physicians who had evaluated Kidder’s physical functional

capacity as part of the initial and reconsideration proceedings before the

Administration. Those physicians had concluded that Kidder could perform “light”

work. (Id. at #76). The ALJ gave “great weight” to the two non-treating physicians’

opinions because they were the only “detailed, specific” medical opinions as to

Kidder’s physical functioning. (Id.). In contrast, the ALJ did not defer to the notes

taken by Kidder’s treating physicians that were contained in her medical records, as

the ALJ found that those statements were not medical opinions appropriate for

consideration in determining whether Kidder is “disabled” under the Social Security

Act. (Id.). For example, the ALJ determined that Kidder’s rheumatologist, Dr.

Hendricks, did not state an adequate medical opinion—and likely did not state her

own opinion at all—when she “routinely” wrote in her treatment notes: “Discussed

that she is not physically able to return to work at this time.” (Id.). The parties agree

that Kidder’s treating physicians did not submit medical opinions as to her functional

capacity.

In arriving at her finding that Kidder had an RFC for “light” work, the ALJ

also discussed the medical records related to Kidder’s physical functioning. More

specifically, the ALJ noted that Kidder has “significant cervical spine disease,” (id. at

#77), but discounted the effect that disease had on Kidder’s functional capacity

because, although an MRI indicated that Kidder’s spinal cord is in contact with her

spinal canal, a subsequent electromyography procedure (“EMG”) showed that there

was no radiculopathy (conditions resulting from a compressed nerve) or other

abnormalities related to her spinal cord (id.). Further, the ALJ pointed out that after

Kidder underwent an MRI, she visited a surgeon who determined that Kidder only

had mild canal stenosis and that her symptoms were scattered and so she did not

require surgery. (Id.). Moreover, the ALJ found that Kidder’s medical records indicate

that she had a full range of motion in her neck, sometimes had an altered gait (but

other times had a normal gait), and that medical records submitted after the

hearing—which were therefore not available to the non-treating physicians when

they submitted their opinions—show that Kidder did not have any significant

deterioration as to her cervical spine, arthritis, or left knee conditions, but rather,

“perhaps, even some improvement” of those conditions, based on her recent

“substantial pain management and continued rheumatoid specialist treatment.” (Id.).

Finally, the ALJ noted that, although the non-treating physicians did not have

medical records related to Kidder’s moderately severe carpal tunnel syndrome,

Kidder had two surgeries to ameliorate her condition (one in October 2016 and

another in December 2016), which (according to a January 2017 post-surgery

examination) improved Kidder’s grip strength in both hands. (Id.). But because those

medical records likewise were not available to the non-treating physicians when they

submitted their opinions of Kidder’s physical functioning, the ALJ added a limitation

to Kidder’s RFC regarding handling and fingering, which the ALJ found she could

only complete “frequently.” (Id.). In practical terms, that limitation restricted Kidder

to six hours of handling and fingering activities at work each day. (Id.). Accordingly,

the ALJ found that Kidder could perform “simple, low stress work.” (Id. at #77–78).

Based on those findings and in light of Kidder’s age, education, and work

experience, the ALJ determined that Kidder could not perform her past work as a

nurse and that she does not have transferable work skills, but that other jobs exist in

significant numbers in the national economy that Kidder could adequately perform.

(Id. at #79–80). Thus, the ALJ concluded, under the Social Security Act, Kidder is not

“disabled.” (Id. at #81).

Kidder then timely filed suit in this Court, on September 20, 2018, challenging

the ALJ’s determination. (Doc. 1). Now represented by counsel, Kidder advanced two

claims of error, which became ripe for review on May 13, 2019. (See Docs. 8, 11, 12).

On March 6, 2020, the Magistrate Judge issued the R&R, which recommends that

this Court overrule both of those claims and affirm the ALJ’s finding. (Doc. 14). Two

weeks later, Kidder objected to the R&R. In her objections, she asserts several general

claims of error that this Court construes as three specific objections. (Doc. 15).

Roughly three weeks after Kidder filed her Objection, on April 7, 2020, the

Commissioner filed his Response. (Doc. 17). Kidder’s Objection to the R&R is thus

ripe for this Court’s review.

LEGAL STANDARD

If a party objects within the allotted time to a report and recommendation, the

Court “shall make a de novo determination of those portions of the report or specified

proposed findings or recommendations to which objection is made.” 28 U.S.C.

§ 636(b)(1)(C); see also Fed R. Civ. P. 72(b). Upon review, the Court “may accept,

reject, or modify, in whole or in part, the findings or recommendations made by the

magistrate judge.” 28 U.S.C. § 636(b)(1). Here, though, the Magistrate Judge was

reviewing a Commission decision. In such cases, the Magistrate Judge’s role is

“limited to determining whether the Commissioner’s decision ‘is supported by

substantial evidence and was made pursuant to proper legal standards.’” Ealy v.

Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v. Comm’r of

Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. § 405(g) (“The findings

of the Commissioner of Social Security as to any fact, if supported by substantial

evidence, shall be conclusive[.]”). Substantial evidence is “such relevant evidence as

a reasonable mind might accept as adequate to support a conclusion.” Richardson v.

Perales, 402 U.S. 389, 401 (1971). Combining the two standards of review, the Court’s

task in this matter is to review de novo, based on the specific objections that Kidder

raised to the R&R, the Magistrate Judge’s determination in that R&R that the ALJ’s

decision was supported by substantial evidence.

DISCUSSION

In Kidder’s Objection, Kidder asks this Court to reverse the ALJ’s finding that

she was not disabled. She claims that the ALJ’s decision is wrong because: (1) the

ALJ relied on the opinions of non-treating physicians, even though those physicians

did not review evidence of her carpal tunnel syndrome that was available in medical

records that were submitted to the ALJ after those physicians provided their

opinions; (2) the ALJ considered some of the record evidence, but failed to consider

other portions of the record evidence, when determining Kidder’s RFC; and (3) the

ALJ erred by “interpret[ing] the raw medical data … into functional terms[,]” rather

than relying on physician opinions interpreting that medical data. (Pl.’s Obj. at 3,

#998). The Court addresses each of these arguments.

To qualify for disability insurance benefits, a claimant must show that she

suffers from a “disability,” which Title II of the Social Security Act, 42 U.S.C. § 401,

et seq., defines as the “inability to engage in any substantial gainful activity by reason

of any medically determinable physical or mental impairment … .” Id. at

§ 423(d)(1)(A). Thus, an individual is found to have a “disability” only if “[her]

physical or mental impairment or impairments are of such severity that [she] is not

only unable to do [her] previous work but cannot, considering [her] age, education,

and work experience, engage in any other kind of substantial gainful work which

exists in the national economy … .” Id. at § 423(d)(2)(A). Pursuant to statutory

authority, the Secretary of Health and Human Services has adopted regulations that

govern eligibility for disability insurance benefits. CFR pt. 404, subpart P (1985). The

regulations establish a five-step “sequential evaluation” process:

First, the claimant must demonstrate that [s]he has not engaged in

substantial gainful activity during the period of disability. Second, the

claimant must show that [s]he suffers from a severe medically

determinable physical or mental impairment. Third, if the claimant

shows that h[er] impairment meets or medically equals one of the

impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1, [s]he is

deemed disabled. Fourth, the ALJ determines whether, based on the

claimant's residual functional capacity, the claimant can perform h[er]

past relevant work, in which case the claimant is not disabled. Fifth, the

ALJ determines whether, based on the claimant's residual functional

capacity, as well as h[er] age, education, and work experience, the

claimant can make an adjustment to other work, in which case the

claimant is not disabled.

Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004) (citing 20 C.F.R.

§ 404.1520(a)(4)). “The claimant bears the burden of proof during the first four steps,

but the burden shifts to the Commissioner at step five.” Id. (citation omitted).

Each of Kidder’s arguments relates to the ALJ’s findings at the fourth step,

i.e., that Kidder’s RFC is “light” work. This was an issue on which Kidder bore the

burden of proof before the Commission. With that in mind, the Court turns to Kidder’s

three objections to the Magistrate Judge’s R&R upholding the ALJ’s findings on that

issue.

Kidder first argues that the ALJ erred by improperly giving “great weight” to

the opinions of non-treating physicians who did not review Kidder’s medical records

related to her carpal tunnel syndrome diagnosis. As the ALJ discussed in her

decision, the non-treating physicians did not review those records because they were

submitted to the ALJ three months after the hearing. Kidder also argues that the

ALJ erred by relying on the non-treating physicians’ opinions without also

mentioning that those physicians had not reviewed an MRI of Kidder’s cervical spine,

which revealed that she had discogenic disease.

In raising those arguments, however, Kidder does not provide any legal

authority for her propositions that, in determining a claimant’s RFC, the ALJ can

only give “great weight” to non-treating physicians who have reviewed the entirety of

a claimant’s medical record. To the contrary, the Sixth Circuit has explained that an

ALJ does not err by relying on a non-treating physician’s opinion as to a claimant’s

RFC, even if that physician did not have the opportunity to review post-opinion

treatment records, so long as the ALJ herself gives “some indication that [she] at least

considered [the ongoing treatment records] before giving greater weight to an opinion

that is not ‘based on a review of a complete case record.’” Blakely v. Comm’r of Soc.

Sec., 581 F.3d 399, 409 (6th Cir. 2009) (quoting Fisk v. Astrue, 253 F. App’x 580, 585

(6th Cir. 2007) (internal citation omitted)). In other words, where the physician has

not reviewed the post-opinion records, the ALJ must review them and consider

whether the physician’s opinion, which did not include consideration of those records,

is in some way tainted as a result.

Under that standard, the ALJ did not err here. Although the non-treating

physicians were unable to review later-arising medical records from Kidder’s ongoing

treatment (which occurred after they finalized their opinions), the ALJ herself did

review and consider those records. She concluded that the notes contained therein

supported the finding that Kidder could complete “light” work, and thus were

consistent with the non-treating physicians’ already-tendered opinions. For example,

the ALJ determined that, although Kidder had discogenic disease, EMGs indicated

that there was no evidence for a cervical radiculopathy, and that Kidder’s physician

recommended that she participate in “conservative management” to remedy the

problem rather than surgery. (Doc. 7-2 at #73). Because the ALJ considered the

complete record, including the records of the later-occurring treatment, before

deciding to give great weight to the non-treating physicians’ medical opinions (which,

again, are the only medical opinions in the record), the ALJ did not err. Accordingly,

Kidder’s first argument lacks merit.

Kidder’s second argument is that, in determining Kidder’s RFC, although the

ALJ did consider some evidence, the ALJ failed to consider other “substantial

evidence” that indicates Kidder is disabled. This argument misunderstands the

deference that this Court owes to the ALJ’s decisions. As discussed above, an ALJ’s

findings “are not subject to reversal merely because there exists in the record

substantial evidence to support a different conclusion.” Buxton v. Halter, 246 F.3d

762, 772 (6th Cir. 2001) (citing Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)).

Rather, the question is merely whether there is substantial evidence to support the

decision the ALJ reached. Here, for the reasons the Magistrate Judge set forth, there

is such substantial evidence. And, as substantial evidence supports the ALJ’s finding

as to Kidder’s RFC, there is nothing left for the Court to consider on that front. See

Moruzzi v. Comm’r of Soc. Sec., 759 F. App’x 396, 406 (6th Cir. 2018) (“We decide only

whether there was substantial evidence to support the ALJ’s RFC determination”)

(citing Blakely, 581 F.3d at 406). Thus, Kidder’s second argument fails.

For Kidder’s final argument, she asserts that the ALJ erred by “interpret[ing]

raw medical data [(i.e., the EMG)] in functional terms.” (Pl.’s Obj. at 3, #998). While

that statement is not a model of clarity, it appears that Kidder’s argument is that the

ALJ erred by acting as her own medical expert in interpreting Kidder’s EMG results

to determine her RFC, rather than relying on physician opinions about those test

results. Although it is true that an ALJ cannot make an RFC finding based on her

own interpretation of raw medical data, Rudd v. Comm’r of Soc. Sec., 531 F. App’x

719, 726 (6th Cir. 2013), the record shows that the ALJ did not interpret raw medical

data here. Rather, it was Kidder’s treating physicians—not the ALJ—who read and

“interpreted” the EMG at issue. In other words, contrary to Kidder’s claim, the ALJ

did not directly interpret the EMG itself, but instead relied on the treating physician’s

interpretation of that EMG, as well as the physician’s treatment recommendations

based on those interpretations. (Doc. 7-2 at 9, #77 (citing Ex. 13F (physician

treatment notes)). That was not an error on the ALJ’s part, as an ALJ may assess

medical evidence (such as a physician’s report), as well as non-medical evidence, in

determining the RFC. Bacon v. Comm’ of Soc. Sec., No. 3:19-cv-183, 2020 WL

4923957, at *7 (E.D. Tenn. Aug. 21, 2020) (citing Poe v. Comm’ of Soc. Sec., 342 F.

App’x 149, 157 (6th Cir. 2009)). In fact, the Commissioner (and so, too, the ALJ) can

evaluate the medical evidence, not only in assessing the RFC, but also in determining

whether an applicant is able to work. Webb v. Comm’ of Soc. Sec., 368 F.3d 629, 638

(6th Cir. 2004). Thus, Kidder’s final argument lacks merit.

CONCLUSION

Substantial record evidence supports the ALJ’s finding that Kidder is not

disabled under the Social Security Act. And, for the reasons discussed more fully

above, the ALJ followed the applicable procedural requirements in reaching that

determination. Accordingly, the Court OVERRULES Kidder’s Objection (Doc. 15),

ADOPTS Magistrate Judge Bowman’s R&R (Doc. 14), AFFIRMS the ALJ’s finding,

DISMISSES WITH PREJUDICE Kidder’s Complaint (Doc. 1), and DIRECTS the

Clerk to enter judgment in this action.

SO ORDERED.

September 1, 2020

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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