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Tull v. Colvin

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

January 30, 2015

CHARLOTTE S. TULL, Plaintiff,
v.
CAROLYN W. COLVIN Commissioner of Social Security, Defendant

For Charlotte S. Tull, Plaintiff: Thomas J. Bertino, Wyandotte, MI; Meredith E. Marcus, Daley Disability Law, P.C., Chicago, IL.

For Social Security, Commissioner of, Defendant: Anne Kleinman - INACTIVE, Marc Boxerman, Russell Cohen, Social Security Administration, Chicago, IL; Lynn Marie AUSA Dodge, U.S. Attorney's Office, Detroit, MI.

Patricia T. Morris, United States Magistrate Judge. DISTRICT JUDGE JOHN CORBETT O'MEARA.

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 claim for Supplemental Security Income (" SSI") under Title XVI of the Social Security Act 42 U.S.C. § § 1381-1383f. This matter is currently before the Court on cross-motions for summary judgment. (Docs. 17, 22, 25.)

Plaintiff had previously filed an application for benefits which, was denied after a decision by administrative law judge (ALJ) Melvin Kalt dated June 23, 2005 was upheld by the Appeals Council. (Transcript, Doc. 12 at 79-89.)

Plaintiff Charlotte Tull was 40 years old on the date the application was filed. (Tr. at 532.) Plaintiff's past work includes temporary jobs of unknown duration and work as a steward for a catering company for eight years. (Tr. at 134, 152.) On April 12, 2007, Plaintiff filed the present claim for SSI, claiming she became disabled on September 1, 1999. (Tr. at 124.)

The claim was denied at the initial administrative stage. (Tr. at 90.) In denying the claim, the Commissioner considered affective disorders. (Id.) On December 7, 2009, Plaintiff appeared before Administrative Law Judge (" ALJ") Patricia McKay, who considered the application for benefits de novo. (Tr. at 32-78.) In her decision issued on December 29, 2009, the ALJ found that Plaintiff was not disabled. (Tr. at 7-24, 20.) Plaintiff requested a review of this decision on January 12, 2010. (Tr. at 6.)

The ALJ's decision became the Commissioner's final decision, see Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004), on November 20, 2010, when the Appeals Council denied Plaintiff's request for review. (Tr. at 1-5.)

Plaintiff filed a complaint in the United States District Court for the Eastern District of Michigan. A Report and Recommendation by R. Steven Whalen, United States Magistrate Judge, dated January 27, 2012 (Tr. at 638-59, ) was adopted by United States District Judge Lawrence Zatkoff on February 22, 2012. (Tr. at 660-61.) Accordingly, the case was remanded to the Commissioner, " directing the ALJ to (1) consider and address Dr. Sudindramath's May, 2009 assessment and (2) obtain vocational testimony regarding the impact of the December 29, 2009 PRT [" B" criteria] findings on job availability[, ]" " specifically with regard to the finding of 'marked' limitations in social functioning." (Tr. at 522, 658.)

On October 1, 2012, another hearing was held before ALJ McKay (Tr. at 540-93, ) and her decision finding that Plaintiff was not disabled was rendered on December 7, 2012. (Tr. at 519-39, 533.) The Appeals Council declined review on September 6, 2013, and extensions of time in which to file a civil action were granted twice. (Tr. at 505-06, 507, 508-10.)

On December 9, 2013, Plaintiff filed the instant suit seeking judicial review of the Commissioner's unfavorable decision. (Compl., Doc. 1.)

B. Standard of Review

The Social Security system contains 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. § § 401-434, and the Supplemental Security Income (" SSI") program of Title XVI, 42 U.S.C. § § 1381-1385. 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 ...


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