Merlin Malone v. Commissioner of Social Security ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1241n.06
No. 12-3028 FILED
Nov 29, 2012
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
MERLIN MALONE, )
)
Plaintiff-Appellant, )
)
v. )
) ON APPEAL FROM THE
COMMISSIONER OF SOCIAL SECURITY, ) UNITED STATES DISTRICT
) COURT FOR THE NORTHERN
Defendant-Appellee. ) DISTRICT OF OHIO
Before: MARTIN, SILER, and DONALD, Circuit Judges.
PER CURIAM. Merlin Malone appeals a district court judgment that affirmed the denial of
his application for supplemental security income benefits. See 42 U.S.C. § 405(g). We have
jurisdiction under 28 U.S.C. § 1291 and now affirm.
Malone alleged that he became disabled in 2006 due to pain in his back, legs, and arms. An
administrative law judge (ALJ) conducted a hearing and found that Malone had the following severe
impairments: “arthritis involving left knee and lumbar spine, status post left scapula fracture,
diminished vision, status post injuries to arms, right wrist, pelvis, and left leg.” The ALJ found that
these impairments were not equivalent to any of the impairments that are listed in 20 C.F.R., Part
404, Subpart P, Appendix 1. The ALJ found that Malone had not engaged in any past relevant work.
However, the ALJ analyzed Malone’s residual functional capacity and determined that he had the
ability to perform a limited range of light work. Thus, the ALJ relied on the testimony of a
No. 12-3028
Malone v. Comm’r of Soc. Sec.
vocational expert to find that Malone was not disabled because he could perform a significant
number of light and sedentary jobs in the economy.
The ALJ’s opinion became the final decision of the Commissioner when the Appeals Council
declined further review. Malone filed a complaint seeking judicial review. The district court
adopted a magistrate judge’s recommendation and affirmed the Commissioner’s decision on
November 10, 2011. Malone now appeals.
We review de novo the district court’s conclusion that the ALJ’s decision is supported by
substantial evidence. See Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007). “[W]e do not try
the case de novo, resolve conflicts in evidence, or decide questions of credibility. Instead, we
consider the ALJ’s decision determinative if there is such relevant evidence as a reasonable mind
might accept as sufficient to support the ALJ’s conclusion.” Id. (citation and internal quotation
marks omitted).
Malone now argues that the ALJ erred by failing to make specific findings on the issue of
whether his impairments were equivalent to one of the impairments that is listed in Appendix 1 of
the regulations. He apparently argues that the ALJ should have made a specific finding on the issue
of whether his musculoskeletal impairments were equivalent to the impairments that are described
in Listing 1.02 of the Appendix.
Malone had the burden of showing that his impairments were equal or equivalent to a listed
impairment. See Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001). To meet that burden Malone
was required to point to medical signs and laboratory findings that are at least equal to a listed
impairment in duration and severity. See id. “For a claimant to show that his impairment matches
-2-
No. 12-3028
Malone v. Comm’r of Soc. Sec.
a listing, it must meet all of the specified medical criteria. An impairment that manifests only some
of those criteria, no matter how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530
(1990).
Malone did not argue that he had a listed impairment at his administrative hearing, even
though he was represented by counsel at that time. Nevertheless, the ALJ expressly found that
Malone did not have an impairment or combination of impairments that was equal or equivalent to
any of the impairments that are described in Appendix 1. This finding is supported by substantial
evidence including a report from Dr. Kathryn Drew and other evidence in the record which indicates
that Malone is able to perform a limited range of light work. See Conn v. Sec’y of Health & Human
Servs., 51 F.3d 607, 609 (6th Cir. 1995); Hale v. Sec’y of Health & Human Servs., 816 F.2d 1078,
1083 (6th Cir. 1987). “[T]he ALJ’s findings of fact should not be disturbed unless we are persuaded
that his findings are legally insufficient.” Dorton v. Heckler, 789 F.2d 363, 367 (6th Cir. 1986).
Malone has not met that burden here.
Malone also argues that the ALJ failed to consider the severity of his impairments in
combination, as prescribed by 20 C.F.R. § 416.920(c). However, the ALJ specifically recognized
his responsibility to determine whether Malone had a severe impairment or combination of
impairments, and whether Malone had an impairment or combination of impairments that were
equivalent to an impairment that is listed in Appendix 1. Malone’s argument is also unpersuasive
because the ALJ considered all of the symptoms that were consistent with the medical evidence in
determining his residual functional capacity. See Loy v. Sec’y of Health & Human Servs., 901 F.2d
-3-
No. 12-3028
Malone v. Comm’r of Soc. Sec.
1306, 1310 (6th Cir. 1990); Gooch v. Sec’y of Health & Human Servs., 833 F.2d 589, 591–92 (6th
Cir. 1987).
Malone next argues that the ALJ gave insufficient reasons for discounting his allegations of
disabling pain. However, the ALJ’s decision shows that he properly considered the record and
Malone’s daily activities before making his credibility finding. See Felisky v. Bowen, 35 F.3d 1027,
1037–38 (6th Cir. 1994). The ALJ specifically reasoned that Malone’s credibility was undermined
by his testimony which indicated that he could lift at least twenty pounds and engage in other
activities that require a considerable ability to stand, walk, and use his hands.
A claimant’s testimony may be discounted if it is contradicted by the medical reports and
other evidence in the record. Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 392 (6th Cir. 2004).
While the medical evidence indicates that Malone does have severe impairments as noted by the
ALJ, it does not specifically support Malone’s testimony regarding the extent of his limitations.
Indeed, there is evidence to support the ALJ’s finding that Malone was able to perform a limited
range of light work. Hence, there is substantial evidence to support the ALJ’s finding that he was
not fully credible. See White v. Comm’r of Soc. Sec., 572 F.3d 272, 287 (6th Cir. 2009); Warner, 375
F.3d at 392.
The ALJ posed a hypothetical question to the vocational expert to determine the number of
jobs that might be available to Malone despite his impairments. The assumptions in the ALJ’s
question were consistent with the evidence in the record. In response, the vocational expert
identified a significant number of light and sedentary jobs that would be available to the hypothetical
claimant. This response satisfied the Commissioner’s burden of showing that a significant number
-4-
No. 12-3028
Malone v. Comm’r of Soc. Sec.
of jobs were available to Malone despite his impairments. See Harmon v. Apfel, 168 F.3d 289,
291–92 (6th Cir. 1999). Thus, there was substantial evidence to support the Commissioner’s
ultimate determination that Malone was not entitled to supplemental security income benefits.
Accordingly, the district court’s judgment is affirmed.
-5-