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Carlson v. Colvin

United States District Court, E.D. Michigan, Southern Division

January 29, 2015

ROBERT CARLSON, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant

For Robert Carlson, Plaintiff: John M. Brissette, Disability Claims Specialists, Lansing, MI.

For Commissioner of Social Security, Defendant: Derri T. Thomas, U.S. Attorney's Office, Detroit, MI; Michael L. Henry, Social Security Administration, Assistant Regional Counsel, Boston, MA.

Patricia T. Morris, United States Magistrate Judge. DISTRICT JUDGE GEORGE CARAM STEEH.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION [1]

Patricia T. Morris, United States Magistrate Judge

I. RECOMMENDATION

In light of the entire record in this case, I suggest that substantial evidence supports the Commissioner's determination that Plaintiff is not disabled. Accordingly, IT IS RECOMMENDED that Plaintiff's Motion for Summary Judgment be DENIED and that Defendant's Motion for Summary Judgment be GRANTED.

II. REPORT

A. Introduction and Procedural History

Pursuant to 28 U.S.C. § 636(b)(1)(B), E.D. Mich. LR 72.1(b)(3), and by Notice of Reference, this case was referred to this magistrate judge for the purpose of reviewing the Commissioner's decision denying Plaintiff's claims for Supplemental Security Income (" SSI") under Title XVI, 42 U.S.C. § § 1381-1385, and for Disability Insurance Benefits (" DIB") under Title II of the Social Security Act 42 U.S.C. § 401-34. The matter is currently before the Court on cross-motions for summary judgment. (Docs. 15, 18.)

Plaintiff Jeremy Robert Carlson was forty-seven years old on his alleged onset date, December 31, 2003, and fifty-seven years old when the Commissioner rejected his claim. (Transcript, Doc. 7 at 24, 163, 169.) He graduated high school, (Tr. at 33, 206), and has worked as a home health aide, laundry worker, machine operator, and bench assembler. (Tr. at 51, 186-95, 252.) At the initial administrative stage, the Commissioner considered affective disorders and substance addiction, denying Plaintiff's claims on February 7, 2013. (Tr. at 55-56.) Plaintiff asked for a hearing in front of an Administrative Law Judge (" ALJ"), who would consider the application de novo. (Tr. at 135-44.)

ALJ Mary Ann Poulose convened the hearing on September 4, 2013. (Tr. at 29-54.) A week later, she issued a written decision denying Plaintiff's claims, which became the Commissioner's final decision, see Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004), on January 29, 2014, when the Appeals Council denied Plaintiff's request for review. (Tr. at 1-3.) On February 27, 2014, Plaintiff filed the instant suit seeking judicial review of the Commissioner's unfavorable decision. (Doc. 1.)

B. Standard of Review

The Social Security system has a two-tiered structure in which the administrative agency handles claims and the judiciary merely reviews the factual determinations to ensure they are supported by substantial evidence. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). The administrative process provides multiple opportunities for reviewing the state agency's initial determination. The Plaintiff can first appeal the decision to the Social Security Agency, then to an ALJ, and finally to the Appeals Council. Bowen v. Yuckert, 482 U.S. 137, 142, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). Once this administrative process is complete, an unsuccessful claimant may file an action in federal district court. Sullivan v. Zebley, 493 U.S. 521, 524-28, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990), superseded by statute on other grounds, Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105; Mullen v. Bowen, 800 F.2d 535, 537 (6th Cir. 1986) (en banc).

This Court has original jurisdiction under 42 U.S.C. § 405(g) to review the Commissioner's final administrative decision. The statute limits the scope of judicial review, requiring the Court to " 'affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence in the record.'" Longworth v. Comm'r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005) (quoting Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004)). See also Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). The court's review of the decision for substantial evidence does not permit it to " 'try the case de novo, resolve conflicts in evidence, or decide questions of credibility.'" Ulman v. Comm'r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012) (quoting Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007)). See also Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).

" It is of course for the ALJ, and not the reviewing court, to evaluate the credibility of witnesses, including that of the claimant." Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007). See also Cruse v. Comm'r of Soc. Sec., 502 F.3d 532, 542 (6th Cir. 2007) (noting that the " ALJ's credibility determinations about the claimant are to be given great weight, 'particularly since the ALJ is charged with observing the claimant's demeanor and credibility'" (quoting Walters, 127 F.3d at 531 (" Discounting credibility to a certain degree is appropriate where an ALJ finds contradictions among medical reports, claimant's testimony, and other evidence."))); Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003) (" [A]n ALJ is not required to accept a claimant's subjective complaints and may . . . consider the credibility of a claimant when making a determination of disability."). " However, the ALJ is not free to make credibility determinations based solely on an 'intangible or intuitive notion about an individual's credibility.'" Rogers, 486 F.3d at 247 (quoting SSR 96-7p, 1996 WL 374186, at *4).

The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Therefore, a court may not reverse the Commissioner's decision merely because it disagrees or because " 'there exists in the record substantial evidence to support a different conclusion.'" McClanahan v. Comm'r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (quoting Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001)). See also Mullen, 800 F.2d at 545. The court can only review the record before the ALJ. Bass, 499 F.3d at 512-13; Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Substantial evidence is " more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). See also Jones, 336 F.3d at 475. " [T]he . . . standard is met if a 'reasonable mind might accept the relevant evidence as adequate to support a conclusion.'" Longworth, 402 F.3d at 595 (quoting Warner, 375 F.3d at 390). " The substantial evidence standard presupposes that there is a '" zone of choice" ' within which the Commissioner may proceed without interference from the courts." Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994) (citations omitted) (quoting Mullen, 800 F.2d at 545).

A court's review of the Commissioner's factual findings for substantial evidence must consider the evidence in the record as a whole, including that evidence which might subtract from its weight. Wyatt v. Sec'y of Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). " Both the court of appeals and the district court may look to any evidence in the record, regardless of whether it has been cited by the Appeals Council." Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). There is no requirement, however, that either the ALJ or the reviewing court discuss every piece of evidence in the administrative record. Van Der Maas v. Comm'r of Soc. Sec., 198 F.App'x 521, 526 (6th Cir. 2006); Kornecky v. Comm'r of Soc. Sec., 167 F.App'x 496, 508 (6th Cir. 2006) (" '[A]n ALJ can consider all the evidence without directly addressing in his written decision every piece of evidence submitted by a party.'" (quoting Loral Defense Systems-Akron v. N.L.R.B., 200 F.3d 436, 453 (6th Cir. 1999))).

C. Governing Law

" 'The burden lies with the claimant to prove that she is disabled.'" Ferguson v. Comm'r of Soc. Sec., 628 F.3d 269, 275 (6th Cir. 2010) (quoting Foster, 279 F.3d at 353). Accord Boyes v. Sec'y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994)). There are several benefits programs under the Act, including the DIB program of Title II, 42 U.S.C. § § 401-34, and the Supplemental Security Income (" SSI") program of Title XVI, 42 U.S.C. § § 1381-85. Title II benefits are available to qualifying wage earners who become disabled prior to the expiration of their insured status; Title XVI benefits are available to poverty-stricken adults and children who become disabled. F. Bloch, Federal Disability Law and Practice § 1.1 (1984). While the two programs have different eligibility requirements, " DIB and SSI are available only for those who have a 'disability.'" Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). " Disability" means 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 [twelve] months.

42 U.S.C. § § 423(d)(1)(A), 1382c(a)(3)(A) (DIB); 20 C.F.R. § 416.905(a) (SSI).

The Commissioner's regulations provide that disability is to be determined through the application of a five-step sequential analysis:

Step One: If the claimant is currently engaged in substantial gainful activity, benefits are denied without further analysis.
Step Two: If the claimant does not have a severe impairment or combination of impairments that " significantly limits . . . physical or mental ability to do basic work activities, " benefits are denied without further analysis.
Step Three: If the claimant is not performing substantial gainful activity, has a severe impairment that is expected to last for at least twelve months, and the severe impairment meets or equals one of the impairments listed in the regulations, the claimant is conclusively presumed to be disabled regardless of age, education or work experience.
Step Four: If the claimant is able to perform his or her past relevant work, benefits are denied without further analysis.
Step Five: Even if the claimant is unable to perform his or her past relevant work, if other work exists in the national economy that plaintiff can perform, in view of his or her age, education, and work experience, benefits are denied.

20 C.F.R. § § 404.1520, 416.920. See also Heston, 245 F.3d at 534. " If the Commissioner makes a dispositive finding at any point in the five-step process, the review terminates." Colvin, 475 F.3d at 730.

" Through step four, the claimant bears the burden of proving the existence and severity of limitations caused by her impairments and the fact that she is precluded from performing her past relevant work." Jones, 336 F.3d at 474. See also Cruse, 502 F.3d at 540. The burden transfers to the Commissioner if the analysis reaches the fifth step without a finding that the claimant is not disabled. Combs v. Comm'r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006). At the fifth step, the Commissioner is required to show that " other jobs in significant numbers exist in the national economy that [the claimant] could perform given her RFC [residual functional capacity] and considering relevant vocational factors." Rogers, 486 F.3d at 241 (citing 20 C.F.R. § § 416.920(a)(4)(v), (g)).

D. ALJ Findings

The ALJ found at step one that Plaintiff had not engaged in substantial gainful activity since the application date, despite working a few months in 2008. (Tr. at 16.) The ALJ also found that he met the insured status requirements through September 30, 2009. (Id.) At step two, the ALJ concluded that Plaintiff had the following severe impairments: " a history of polysubstance abuse, history of a seizure disorder, bipolar disorder, anxiety disorder, and depression . . . ." (Id.) At step three, the ALJ found that Plaintiff's combination of impairments did not meet or equal one of the listings in the regulations. (Tr. at 17-19.) The ALJ then found that Plaintiff had the residual functional capacity (" RFC") to perform work at all exertional levels--heavy, medium, light, and sedentary, 20 C.F.R. § § 404.1567(b), 416.967(b)--with additional non-exertional restrictions. (Tr. at 19-22.) At step four, the ALJ found that Plaintiff was unable to perform any past relevant work. (Tr. at 23.) At step five, the ALJ found that a significant number of jobs existed suitable to Plaintiff's limitations. (Tr. 23-24.)

E. Administrative Record

1. Medical Records

Plaintiff's medical record begins well after his alleged 2003 onset date. The earliest report describes emergency treatment for drug withdrawal symptoms on January 22, 2009. (Tr. at 323-29.) The examination was normal; while a computed tomography (" CT") scan of his head showed chronic white matter ischemic changes, the doctor characterized the results as " essentially normal." (Tr. at 327, 324, 328, 331.) Other tests, including an electrocardiogram (" EKG") and chest scans, were also unremarkable. (Tr. at 330-32.) Plaintiff was confused and disoriented during the initial evaluation, so his medical history was obtained from other records and by a phone call to his current " roommate/boyfriend." (Tr. at 324.) He had a history of drug abuse, particularly Valium and heroin, according to the roommate. (Tr. at 327.) Recently, he began taking methadone and had not used Valium or Vicodin for seven to ten days. (Tr. at 323-24, 327-28.)

The next day Plaintiff, still in the hospital, was examined by Dr. Pnitha Vijayakumar. (Tr. at 326-27.) He had begun hallucinating and " hitting himself, " according to Plaintiff's sister, " so she brought him to the hospital." (Tr. at 326.) About a week prior, Plaintiff stopped using " Xanax, Valium, heroin, [and] alcohol, " after going to a methadone clinic; his mental state had decreased since. (Id.) During the decline, he experienced at least one seizure. (Id.) Dr. Vijayakumar thought Plaintiff now seemed " a little bit better, " as the hallucinations had stopped; but his memory remained foggy. (Id.) He did recall going to a rehabilitation program fifteen years ago, otherwise his medical history was unexceptional and he claimed " nothing is a problem at this time." (Tr. at 326-27.) Drug and alcohol withdrawal had caused the episode, the doctor concluded. (Tr. at 327.)

Dr. Keon Chang also examined Plaintiff. (Tr. at 325-26.) Plaintiff informed him that the methadone clinic had increased his dosages " to the point that he could not function, " and that the day he arrived at the hospital he had used heroin, likely causing the overdose. (Tr. at 325.) " He absolutely denied having had suicidal thought, or intention, or attempt [sic]." (Id.) Denying alcohol abuse, Plaintiff explained that he suffered depression since " he lost his roommate . . . in October [2008]." (Id.) He had " taken care of this male friend for the last 28 years[, ] as [the friend] had been disabled . . . ." (Id.) He had " no significant history of treatment for depression or any psychiatric disorder, " but did have a twenty year history of substance abuse. (Id.) Dr. Chang observed that Plaintiff was alert and cooperative, spoke pleasantly, made eye contact, and provided reliable medical history. (Id.) Psychosis did not seem to play a role, as Plaintiff denied delusions and hallucinations. (Id.) The final diagnosis was opiate dependence and benzodiazepine abuse; Dr. Chang also wrote, " Probably situational disorder or adjustment disorder with depression." (Tr. at 325-26.) He recommended a rehabilitation program and Plaintiff agreed, stating he wanted a normal life without addictions and also planned to get a job. (Tr. at 326.)

After a week in the hospital Plaintiff was discharged and began an intensive outpatient rehabilitation program. (Tr. at 323, 281.) On the intake form, he wrote that his purpose for seeking treatment was " to stay off drugs, and to deal with a good friend[']s death." (Tr. at 281.) His treatment history included a rehabilitation program in 1988, methadone clinic visits, and the recent emergency room detoxification. (Id.) He had received no mental health treatment and had never attempted suicide. (Tr. at 281-82.) His symptoms included depression, guilt, anxiety, sleeplessness, low self-esteem, and weight fluctuations, but no suicidal or homicidal ideations. (Tr. at 282.) His relationship with his father was " good . . . but somewhat distant, " while his relationship with his mother was " very good" and with his siblings, " good." (Tr. at 282.) He had no " disability or limitation" which could keep him from participating in treatment. (Tr. at 283.)

The form then asked about his social history. (Id.) He divorced after five years of marriage and was currently in a " good" long-term relationship of over five years; the only present source of conflict was financial, not drug use or mental health issues. (Id.) He finished high school and attended trade school to become a medical assistant. (Id.) He did not work, yet he said employment provided a source of income. (Tr. at 283-84.) His social life had only " acquaintances, " though he did not check the box that would indicate he had " [n]o close friends." (Tr. at 284.) He admitted he drank alcohol, used drugs, and smoked cigarettes, (Tr. at 285), about two packs a day his friend estimated. (Tr. at 328.)

The form then presented a long list of problems for Plaintiff to rate. (Tr. at 286.) At admission to the program, he said the following, among others, were not a problem: using drugs and alcohol; hurting others; anxiety; mood changes; anger; self-destruction; obsessive thoughts; physical problems; social isolation; difficulties in relationships; lack of support system; stressful home environment; and family. (Id.) His only " minimal problem" was not trusting others. (Id.) Among the " [m]ild problem[s]" were " thinking about hurting myself, " depression, compulsions, and difficulty making decisions. (Id.) " Moderate" problems included reckless behavior, causing others emotional harm, confused thoughts, adhering to prescriptions, and participating in recreation. (Id.) His grief and insomnia were the only " [s]erious" problems, and his single " [v]ery severe problem" was finances. (Id.) The next intake sheet focused on his physical issues. (Tr. at 289.) Pertinent past problems included thyroid problems, dizziness, and alcohol and drug use; current issues were visual, high blood pressure, seizures, insomnia, severe headaches, weight fluctuations, and tobacco use. (Id.) He had no problems with numbness, paralysis, tingling, or weakness, and no pain in his back, chest, neck, or any other area. (Id.) He also ground his teeth at night, causing them to crack. (Id.)

The intake evaluation was signed by a certified counselor and later by a physician. (Tr. at 275-80.) The counselor observed normal motor activity, and unremarkable speech. (Tr. at 275.) Plaintiff cooperated pleasantly, and displayed proper orientation, normal thoughts, average intelligence, normal memory, and fair insight and judgment. (Tr. at 275-76.) Yet he cried, came across as depressed, and had poor impulse control. (Id.) The next part of the evaluation detailed Plaintiff's extensive drug use history. (Tr. at 277.) The counselor noted no past aggressive behavior, recklessness, or injuries. (Tr. at 278.) Plaintiff did not report any pain. (Id.) Hygiene, nutrition, shopping, and transportation were not problematic daily activities; ...


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