Cameron v. Commissioner of Social Security, No. 1:2015cv00169 - Document 22 (E.D. Tenn. 2016)
Court Description: ORDER denying 14 Motion for Judgment on the Pleadings; granting 15 Motion for Summary Judgment; accepting and adopting 19 Report and Recommendations and overruling 20 Appeal of Magistrate's Report and Recommendations. This case is DISMISSED WITH PREJUDICE.Signed by District Judge Harry S. Mattice, Jr on 8/2/2016. (BJL, )
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Cameron v. Commissioner of Social Security Doc. 22 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE at CHATTANOOGA J ILL A. CAMERON, Plaintiff, v. CAROLYN W. COLVIN Acting Com m issioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No. 1:15-cv-169 J udge Mattice Magistrate J udge Lee ORD ER On April 12, 20 16, United States Magistrate J udge Susan K. Lee filed her Report and Recom m endation (Doc. 19) pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b). Magistrate J udge Lee recom m ended that (1) Plaintiff’s Motion for J udgment on the Pleadings (Doc. 14) be denied; (2) Defendant’s Motion for Sum m ary J udgm ent (Doc. 15) be granted; (3) the decision of the Com m issioner be affirm ed. (Doc. 19 at 1). Plaintiff has filed tim ely objections to the Magistrate J udge’s Report and Recom m endation. (Doc. 20 ). Specifically, Plaintiff argues that: “(1) the Com m issioner’s Decision erroneously found that Ms. Cam eron had the Residual Functional Capacity (RFC) to perform light work as defined in 20 CFR 40 4.1567(bs) and 416.967(a) and (2) the Com m issioner’s Decision failed to sufficiently assess the consistency of Ms. Cam eron’s statem ents.” (Id. at 2). Many of Plaintiff’s argum ents within these two broad objections are sim ply restated from Plaintiff’s Motion for J udgment on the pleadings Dockets.Justia.com and were fully addressed in Magistrate J udge Lee’s Report and Recom m endation.1 (Com pare Doc. 14 w ith Doc. 20 ; see Doc. 19). Accordingly, these argum ents are not properly before the Court. See VanDiver v. Martin, 30 4 F. Supp. 2d 934, 937 (E.D. Mich. 20 0 4) (“A general objection, or one that m erely restates the argum ents previously presented is not sufficient to alert the court to alleged errors on the part of the m agistrate judge. An ‘objection’ that does nothing m ore than state a disagreem ent with a m agistrate’s suggested resolution, or sim ply sum m arizes what has been presented before, is not an ‘objection’ as that term is used in this context.”). Plaintiff has, however, m ade two argum ents that require de novo review. See 28 U.S.C. § 636(b)(3). First, Plaintiff claim s that prior to the tim e the Com m issioner’s decision becam e final, the Social Security Adm inistration (“SSA”) issued an update to its Program Operation Manual System (“POMS”), which the Com m issioner failed to consider in its decision denying her benefits. Specifically, Plaintiff cites to an exam ple in POMS 250 25.0 15 that is “alm ost indistinguishable from [her] situation.” (Doc. 20 at 2). The exam ple reads, in its entirety, A 50 -year-old claim ant with a high school education and unskilled past relevant past [sic] work has an RFC for standing/ walking 2 hours of an 8hour day and sitting approxim ately 6 hours of an 8-hour day. He is able to lift/ carry/ push/ pull 20 pounds occasionally and 10 pounds frequently. This RFC falls between rule 20 1.12, which has a decision of disabled, and 20 2.13, which has a decision of not disabled. In this case, use rule 20 1.12 as a fram ework for a decision . . . of disabled because the definitions in DI 250 0 1.0 0 1 (Medical-Vocational Quick Reference Guide) indicate light work usually requires walking or standing for approxim ately 6 hours of an 8-hour day. Since the claim ant can only walk or stand for 2 hours, he has a significantly reduced capacity to perform light work and a sedentary m edical-vocational rule applies as a fram ework for a determ ination. 1 These argum ents include: (1) Plaintiff’s disagreem ent with the Adm inistrative Law J udge’s (“ALJ ”) assessm ent of Plaintiff’s credibility, (2) Plaintiff’s insistence that the ALJ did not properly weigh the evidence. (Doc. 20 at 4– 8). 2 (Id. at 2– 3). Plaintiff argues that had the Adm inistrative Law J udge (“ALJ ”) considered this exam ple, he would have found that Plaintiff was only able to perform sedentary work, which would entitle her to benefits. In her Report and Recom m endation, Magistrate J udge Lee excused the ALJ ’s failure to consider this POMS update, citing to Davis v. Secretary of Health & Hum an Services, 867 F.2d 336 (6th Cir. 1989) and W ells v. Astrue, 20 0 9 WL 340 0 911 (E.D. Ky. Oct 20 , 20 0 9). Therein, the United States Court of Appeals for the Sixth Circuit and the United States District Court for the Eastern District of Kentucky found that POMS is m erely an interagency m anual with no legal force. Accordingly, the “failure to follow the POMS,” Magistrate J udge Lee opined, “is not legal error.” (Doc. 19 at 21); see also Davis 867 F.2d at 340 (“POMS is a policy and procedure m anual that em ployees of the Departm ent of Health & Hum an Services use in evaluating Social Security claim s and does not have the force of law.”); W ells, 20 0 9 WL 340 0 911 at *4 (“The POMS contains a disclaim er indicating that it states only internal SSA guidance and is not intended to, and does not, and m ay not be relied upon to create any rights enforceable by law by any party in a civil or criminal action.”) (internal quotation m arks and citations om itted). Plaintiff claim s that Magistrate J udge Lee’s reliance on W ells and Davis is m isplaced because after those decisions, the SSA published SSR 13-2p, which “em phatically rejected the holdings of [those] cases.” (Doc. 20 at 3). Plaintiff’s argum ent, however, fails for two related reasons. First, SSR 13-2p is entitled “Evaluating Cases Involving Drug Addiction and Alcoholism .” SSR 13-2p, 20 13 WL 621536. Because this case does not involve drug addiction or alcoholism , SSR 13-2p is inapplicable. Second, the portion of SR 13-2p to which Plaintiff cites outlines how adjudicators are to consider federal district and circuit court decisions that conflict with SSA policy 3 concerning drug addiction and alcoholism . As Plaintiff has failed to identify a m isinterpretation of such an SSA policy, SSR 13-2p is, again, inapplicable. See Martinez v. Colvin, 20 16 WL 270 911 at *5 (D. Or. J an. 20 , 20 16) (“Second, SSR 13-2p, addresses how adjudicators consider federal district and circuit court decisions where drug addiction and alcoholism problem s are present. Plaintiff m ade no claim s that there were m isinterpretations of policies relating to drug addiction and alcoholism in this case. Therefore, SSR 13-2P is inapplicable here.”). Like the court in Martinez, this Court finds that “because the POMS do not create a judicially enforceable duty on the ALJ . . . plaintiff’s reliance on the POMS to overturn the ALJ ’s conclusions” is m isplaced. Id. Accordingly, Plaintiff’s first objection will be OVERRU LED . Second, Plaintiff argues that the ALJ followed a “now-repealed standard for assessing [Plaintiff’s] own description of her sym ptom s, resulting in an erroneous decision.” (Doc. 20 at 4). Essentially, Plaintiff takes um brage with the ALJ ’s finding that she was not a credible witness and Magistrate J udge Lee’s deference to that credibility determ ination. In support, Plaintiff argues that the ALJ erroneously relied on SSR 96-7p in m aking his credibility determ ination because SSR 16-3p, which becam e effective March 16, 20 16, rescinded SSR 96-7p. (Id.); see also SSR 16-3p, 20 16 WL 11190 29. Notably, and fatally to her cause, Plaintiff also recognizes that “[i]n all fairness, because SSR-16-3p was not issued until shortly before the R&R, this is the first briefing to address SSR 16-3p’s affect [sic] upon the Com m issioner’s Decision.” (Doc. 20 at 4). It is well-established that, absent explicit language to the contrary, adm inistrative rules do not apply retroactively. See, e.g., Bow en v. Georgetow n Univ. Hosp., 488 U.S. 20 4, 20 8 (1988) (“Retroactivity is not favored in the law. Thus congressional enactm ents and adm inistrative rules will not be construed to have retroactive effect unless their 4 language requires this result.”); Cruse v. Com m ’r of Soc. Sec., 50 2 F.3d 532, 541– 42 (6th Cir. 20 0 7) (“We are not aware of any constitutional or statutory requirem ent that the Adm inistration apply its [newly effective] policy interpretation rulings to appeals thenpending in federal courts, absent, of course, ex post facto or due process concerns not present here.”); Com bs v. Com m ’r of Soc. Sec., 459 F.3d 640 , 642 (6th Cir. 20 0 6) (“The Act does not generally give the SSA the power to prom ulgate retroactive regulations.”). Because the text of SSR 16-3p does not indicate the SSA’s intent to apply it retroactively, the Court declines to do so. See SSR 16-3p, 20 16 WL 11190 29. Accordingly, Plaintiff’s second objection is without m erit and will be OVERRU LED . As previously stated, Plaintiff’s rem aining argum ents are not properly before the Court. See VanDiver, 30 4 F. Supp. 2d at 937. Nevertheless, the Court has conducted a review of the Report and Recom m endation, as well as the record, and it agrees with Magistrate J udge Lee’s well-reasoned conclusions. Specifically, the Court finds that the ALJ properly considered Plaintiff’s credibility, and that the errors about which Plaintiff com plains were harm less because the ALJ ’s credibility determ ination was otherwise supported by substantial evidence in the record. See Ulm an v. Com m ’r of Soc. Sec., 693 F.3d 70 9, 714 (6th Cir. 20 12) (“The Ninth Circuit reviewed for harm less error and noted, ‘[s]o long as there rem ains substantial evidence supporting the ALJ ’s conclusions on credibility and the error does not negate the validity of the ALJ ’s ultim ate credibility conclusion, such is deem ed harm less and does not warrant reversal.’ While we have not explicitly adopted a harm less error analysis to credibility determ inations . . . [w]e now m ake explicit what we have previously adopted by im plication: harm less error analysis applies to credibility determ inations in the social security disability context.”) (quoting Carm ickle v. Com m ’r of Soc. Sec., 533 F.3d 1155, 1162 (9th Cir. 20 0 8)). Moreover, the 5 Court finds that the ALJ properly consulted a Vocational Expert (“VE”), and his reliance on the VE’s opinion in form ing the basis for his finding that Plaintiff could perform work existing in the national econom y was not error. See Branon v. Com m ’r of Soc. Sec., 539 F. App’x 675, 680 (6th Cir. 20 13) (“When a plaintiff’s residual functional capacity is not squarely within either grid, the grid guidelines are not binding and instead are used only as an analytical fram ework. In such a situation, Social Security Ruling 83-12 directs that a vocational expert be called to testify as to whether a significant num ber of jobs exist in the national econom y that a hypothetical individual with plaintiff’s lim itations can perform . So long as the hypothetical is accurate, the adm inistrative law judge m ay rely on the vocational expert’s testim ony to find that the plaintiff can perform a significant num ber of jobs in the national econom y.”). Because the Court agrees with Magistrate J udge Lee that the ALJ ’s conclusions were supported by substantial evidence, the Com m issioner’s decision will be AFFIRMED . Felisky v. Bow en, 35 F.3d 10 27, 10 35 (6th Cir. 1994) (“The substantial evidence standard presupposes that there is a zone of choice within which the Secretary m ay proceed without interference from the courts.”) (internal quotation m arks om itted). Accordingly, The Court ACCEPTS and AD OPTS Magistrate J udge Lee’s findings of fact, conclusions of law, and recom m endations (Doc. 19) pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b); Plaintiff’s Objections (Doc. 20 ) are OVERRU LED ; Plaintiff’s Motion for J udgm ent on the Pleadings (Doc. 14) is D EN IED ; Defendant’s Motion for Sum m ary J udgm ent (Doc. 15) is GRAN TED ; The decision of the Com m issioner is AFFIRMED ; and 6 This case is D ISMISSED W ITH PREJU D ICE. SO ORD ERED this 2nd day of August, 20 16. / s/ Harry S. Mattice, Jr._ _ _ _ _ _ _ HARRY S. MATTICE, J R. UNITED STATES DISTRICT J UDGE 7
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