Lynn Ulman v. Commissioner of Social Security

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0311p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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LYNN A. ULMAN,

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Plaintiff-Appellant,

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No. 11-2304

v.

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Defendant-Appellee. -

COMMISSIONER OF SOCIAL SECURITY,

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Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:10-cv-789—Robert Holmes Bell, District Judge.

Decided and Filed: September 7, 2012

Before: NORRIS, McKEAGUE, and KETHLEDGE, Circuit Judges.

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COUNSEL

ON BRIEF: Christopher D. Morris, Kalamazoo, Michigan, for Appellant. Kevin

Agnew, SOCIAL SECURITY ADMINISTRATION, Chicago, Illinois, for Appellee.

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OPINION

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ALAN E. NORRIS, Circuit Judge. Lynn Ulman appeals from the denial of her

application for disability insurance benefits under the Social Security Act. While the

administrative law judge (“ALJ”) recognized that claimant suffered from physical

limitations that prevented her from performing her past work (park ranger, home health

care aid, and waitress), he found that she could perform other jobs (cashier, parking lot

attendant, ticket taker) that existed in the national economy. The Appeals Council

affirmed that decision. Claimant then filed an appeal in the district court. A magistrate

judge issued a report recommending that the denial of disability benefits be affirmed; the

district court adopted that recommendation.

1

No. 11-2304 Ulman v. Comm’r of Soc. Sec. Page 2

On appeal, claimant focuses upon a single issue: Did the district court err when

it concluded that a factual error made by the ALJ was harmless?

I.

Ms. Ulman filed her claim for benefits on March 7, 2006. She alleged that her

disability began on June 28, 2002. As found by the ALJ, her insured status expired on

December 31, 2003. To be eligible for benefits, her disability must have begun on or

before that date and continued until she filed her application for benefits. 42 U.S.C.

§ 423(a)(1); 20 C.F.R. § 404.315(a).

Claimant was 47 at the time her insured status expired. She therefore fell into

the category of “younger worker” for the purpose of determining whether age would

affect her ability to adjust to other work. 20 C.F.R. § 404.1563(c). As mentioned above,

she had worked as a waitress, park ranger, and home health aide.

The first medical problem that claimant encountered occurred on

December 3, 2001 when she fell backwards off a ladder. She suffered bruising and left

knee pain. Although there was no sign of a fracture, imaging revealed “narrowing of the

disc space at C6-C7 level with moderate marginal osteophyte formation about the

vertebral endplates.” The emergency room physician also noted some arthritic change

in her left shoulder. She was discharged with instructions to “rest, apply ice to the sore

area, continue use of ibuprofen, and/or Vicodin for pain.”

This incident is significant to this appeal because the ALJ confused the date

when the report was printed for the administrative record (2006) with the date of the

incident (2001). By the time that the ALJ reviewed the records, claimant had developed

the other physical problems for which she sought disability benefits. As noted in his

decision, an ALJ must make a credibility assessment when evaluating “the intensity,

persistence, and limiting effects of claimant’s symptoms to determine the extent to which

they limit the claimant’s ability to do basic work activities.” With respect to pain, the

ALJ must compare the intensity reported by the claimant to the objective medical

evidence based “on a consideration of the entire case record.” Id.

No. 11-2304 Ulman v. Comm’r of Soc. Sec. Page 3

The confusion concerning the date of the ladder incident led the ALJ to make the

following adverse credibility determination with respect to her reports of disabling pain:

[N]oted is the fact that although the claimant is seeking disability since

June 2002 and indicating that she can do very little because of pain,

records show she was actually climbing a ladder in 2006 wherein [sic]

she fell about 7 to 8 feet backwards and had neck pain with pain down

her left shoulder and arm all the way to the knee. The fact that she was

climbing a ladder is not consistent with being disabled prior to

December 2003 and brings her credibility into question.

(emphasis added). The question for us is whether this faulty assumption constitutes

harmless error.

According to claimant’s testimony, she injured herself in June 2002 when she fell

into a hole at a campsite while working as a park ranger. She was treated in July for leg

and lower back pain, which included x-rays that were unremarkable. However, due to

continued back pain, she received prescriptions for Flexeril, a muscle relaxant, and

Vicodin. An MRI of her lower spine on July 22 showed mild spinal stenosis and a mild

central disc protrusion. Her physician, Dr. John Walstrum, did not believe that surgery

would be necessary but nonetheless recommended a surgical evaluation.

On July 31, 2002, another physician, Dr. Daniel Mankoff, noted a “markedly

antalgic” gait and limitation on her lumbar movement. In October of that year, she

underwent a discography, which Dr. Mankoff interpreted as showing degenerative

changes at L3-4, L4-5, and L5-S1. He recommended a minimally invasive back surgery

referred to as intradiscal electrothermal therapy (“IDET”). The surgery was performed

in January 2003.

In March 2003, Dr. Mankoff noted that claimant had undergone the back surgery

and “she has been doing very well” although she had recently fallen, which resulted in

increased back pain.

She returned to Dr. Mankoff on May 7, 2003. He noted that she was “improved”

after the surgery but also recognized that she was having a significant problem with

depression due to the pain. Although her back surgeon had recommended a return to

No. 11-2304 Ulman v. Comm’r of Soc. Sec. Page 4

work, she told Dr. Mankoff that she did “not feel that in any way she is capable of

returning to her job full-time.” Id. He recommended continued pain medication,

increased medication for her depression, and no work through June.

On May 28, she met with Dr. Mankoff again. They discussed her return to work.

According to his notes, any such work “should involve no lifting over 10 pounds as well

as a sit/stand option and no repetitive bending and twisting.” Id. On August 6, 2003,

he reiterated that he did not believe that claimant was able to return to work without

restrictions and recommended a functional capacity evaluation. That fall he

administered two caudal epidural injections to help claimant with back pain.

In his decision, the ALJ recounted this medical evidence. He also noted that

claimant testified that she is in constant pain:

On a 10-point scale of ascending pain, she said her pain averaged a 7

every day. She has been taking Vicodin for relief of pain since the first

surgery. She has a hard time sleeping at night. She does no cooking,

vacuuming, or grocery shopping. She added that her son and his wife did

all the housework. Claimant said she also cannot work because she

cannot sustain concentration for 40 hours and does not even read.

The ALJ concluded that claimant suffered from these severe impairments: degenerative

disc disease, lumbar spine with chronic back pain, status-post surgery; degenerative

changes of the cervical spine; and depression. However, he went on to find that “the

claimant did not have an impairment or combination of impairments that met or

medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P,

Appendix 1.”

He determined that claimant’s symptoms and limitations were “not credible to

the extent alleged” and that she had the residual functional capacity to perform sedentary

work. 20 C.F.R. §404.1567(a). In addition, the ALJ stated that claimant “requires the

option to sit or stand at will every 30 to 60 minutes. She can engage in occasional

bending, twisting, and turning and she cannot work around heights or moving

machinery.” In short, his restrictions tracked those suggested by Dr. Mankoff.

No. 11-2304 Ulman v. Comm’r of Soc. Sec. Page 5

Relying upon the testimony of a vocational expert the ALJ concluded that a

significant number of jobs existed in the national economy that would accommodate

claimant’s restrictions.

Based upon this analysis, claimant was denied disability benefits. She then

appealed to the district court. The matter was referred to a magistrate judge for

evaluation.

The primary issue before the magistrate judge—and the only one appealed to

us—is whether the adverse credibility finding made by the ALJ requires remand because

it was based in part upon a factual misreading of the record. The magistrate thought not:

The ALJ’s observation that disabled individuals generally do not climb

ladders is misplaced, but the error is harmless. Substantial evidence is

the applicable standard of review, not perfection. The ALJ found that

plaintiff’s testimony regarding the intensity, persistence, and limiting

effects of her symptoms was not fully credible because it was

inconsistent with the objective evidence and the opinions of her treating

pain specialist, Daniel Mankoff, M.D. There is more than substantial

evidence supporting the ALJ’s credibility determination.

After noting that credibility determinations are typically the province of the ALJ, not

reviewing courts, the magistrate judge recounted all of the medical evidence considered

below before concluding that any error was “harmless because the objective evidence

and the opinion of plaintiff’s treating pain specialist, Dr. Mankoff, provide more than

substantial evidence supporting the ALJ’s credibility determination.” The magistrate

specifically cited a passage from the ALJ’s decision to support his conclusion that

“objective evidence did not support plaintiff’s allegations of disabling pain.” The

district court’s order adopting the recommendation reaches the same conclusion:

Plaintiff’s argument would be persuasive if the ALJ had based his

credibility finding solely or primarily on the factual error identified by

Plaintiff. However, as the Magistrate Judge details in the R&R, the ALJ

analyzed at length other, objective evidence in support of his credibility

determination.

No. 11-2304 Ulman v. Comm’r of Soc. Sec. Page 6

II.

We review a district court’s decision in social security cases de novo. Valley v.

Comm’r of Soc. Sec., 427 F.3d 388, 390 (6th Cir. 2005). In other words, this court

directly reviews the Commissioner’s findings and conclusions as if it were the first

reviewing court. Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir. 1990). We must affirm

the Commissioner’s decision if it “is supported by substantial evidence and was made

pursuant to proper legal standards.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241

(6th Cir. 2007); see also 42 U.S.C. § 405(g). Moreover, “[w]hen deciding under

42 U.S.C. § 405(g) whether substantial evidence supports the ALJ’s decision, we do 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).

Claimant takes the view that the magistrate judge (and the district court by

extension) erred because he failed, as did the ALJ, to identify precisely what “objective

medical evidence” other than the fall from the ladder called her credibility into question.

She relies on a World War II era opinion involving the Securities and Exchange

Commission, S.E.C. v. Chenery Corp., 318 U.S. 80 (1942), for the proposition that

“federal agency action must be based upon what it did, not by what it might have done.”

This reasoning misses the mark. First, the Commissioner is not attempting to offer a

post hoc-justification of agency action by invoking the harmless error argument. Rather,

the Commissioner is simply saying that the ALJ cited “substantial evidence” to support

his conclusion regarding claimant’s credibility even if we discount his reliance upon the

fall from the ladder. Unlike the unpublished decision cited by claimant, Berryhill v.

Shalala, No. 92-5867, 1993 WL 361792 (6th Cir. Sept. 16, 1993), this appeal does not

involve a misapplication of a legal principle by the ALJ; rather, he simply erred in a

factual finding. As long as the ALJ cited substantial, legitimate evidence to support his

factual conclusions, we are not to second-guess: “If the ALJ’s decision is supported by

substantial evidence, then reversal would not be warranted even if substantial evidence

would support the opposite conclusion.” Bass, 499 F.3d at 509.

No. 11-2304 Ulman v. Comm’r of Soc. Sec. Page 7

An opinion from the Ninth Circuit Court of Appeals involving an ALJ who found

a claimant less than credible based in part upon invalid reasons is instructive. Carmickle

v. Comm’r of Soc. Sec., 533 F.3d 1155, 1162 (9th Cir. 2008). In that case, the ALJ relied

upon two invalid reasons in reaching an adverse credibility determination. The Ninth

Circuit reviewed for harmless error and noted, “[s]o long as there remains substantial

evidence supporting the ALJ’s conclusions on credibility and the error does not negate

the validity of the ALJ’s ultimate credibility conclusion, such is deemed harmless and

does not warrant reversal.” Id. (quotation marks omitted and punctuation altered).

While we have not explicitly adopted a harmless error analysis to credibility

determinations, one of our leading disability benefits cases, Wilson v. Comm’r of Soc.

Sec., 378 F.3d 541, 547 (6th Cir. 2004), tacitly uses that standard when the ALJ made

an error of law by not following the Commissioner’s guidelines and regulations

concerning the weight to be given to treating physicians. See also Myatt v. Comm’r of

Soc. Sec., 251 F. App’x 332, 336 (6th Cir. 2007) (misreading of a psychiatric exhibit

harmless because the ALJ credited claimant with all other mental limitations). We now

make explicit what we have previously adopted by implication: harmless error analysis

applies to credibility determinations in the social security disability context.

With the exception of Ms. Ulman’s fall from the ladder, the ALJ’s decision

carefully parses all of the medical records and accords them fair weight. And, those

records support a finding of no disability. Dr. Mankoff stated that claimant could return

to work with the very restrictions adopted by the ALJ in his hypothetical to the

vocational expert. Given our highly deferential standard of review, we must affirm the

denial of benefits.

III.

The petition for review is denied.