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Marker v. Commissioner of Social Security

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

February 13, 2015

ROBERT MARKER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant

For Robert A. Marker, Plaintiff: Meredith Emily Marcus, Daley Disability Law, Chicago, IL; Frederick J. Daley, Jr., Daley Disability Law, P.C., Chicago, IL.

For Commissioner of Social Security, named as Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant: Kristina D. Cohn, Tomasina DiGrigoli, Social Security Administration (NY), New York, NY; Ryan D. Cobb, U.S. Attorney (Grand Rapids), Grand Rapids, MI.

ELLEN S. CARMODY, United States Magistrate Judge. Hon. Gordon J. Quist.

REPORT AND RECOMMENDATION

ELLEN S. CARMODY, United States Magistrate Judge

This is an action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review a final decision of the Commissioner of Social Security denying Plaintiff's claim for Disability Insurance Benefits under Title II of the Social Security Act. Section 405(g) limits the Court to a review of the administrative record, and provides that if the Commissioner's decision is supported by substantial evidence, it shall be conclusive. Pursuant to 28 U.S.C. § 636(b)(1)(B), authorizing United States Magistrate Judges to submit proposed findings of fact and recommendations for disposition of social security appeals, the undersigned recommends that the Commissioner's decision be affirmed.

STANDARD OF REVIEW

The Court's jurisdiction is confined to a review of the Commissioner's decision and of the record made in the administrative hearing process. See Willbanks v. Sec'y of Health and Human Services, 847 F.2d 301, 303 (6th Cir. 1988). The scope of judicial review in a social security case is limited to determining whether the Commissioner applied the proper legal standards in making her decision and whether there exists in the record substantial evidence supporting that decision. See Brainard v. Sec'y of Health and Human Services, 889 F.2d 679, 681 (6th Cir. 1989).

The Court may not conduct a de novo review of the case, resolve evidentiary conflicts, or decide questions of credibility. See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). It is the Commissioner who is charged with finding the facts relevant to an application for disability benefits, and her findings are conclusive provided they are supported by substantial evidence. See 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla, but less than a preponderance. See Cohen v. Sec'y of Dep't of Health and Human Services, 964 F.2d 524, 528 (6th Cir. 1992) (citations omitted). It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir. 1993). In determining the substantiality of the evidence, the Court must consider the evidence on the record as a whole and take into account whatever in the record fairly detracts from its weight. See Richardson v. Sec'y of Health and Human Services, 735 F.2d 962, 963 (6th Cir. 1984).

As has been widely recognized, the substantial evidence standard presupposes the existence of a zone within which the decision maker can properly rule either way, without judicial interference. See Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (citation omitted). This standard affords to the administrative decision maker considerable latitude, and indicates that a decision supported by substantial evidence will not be reversed simply because the evidence would have supported a contrary decision. See Bogle, 998 F.2d at 347; Mullen, 800 F.2d at 545.

PROCEDURAL POSTURE

Plaintiff was 46 years of age on his alleged disability onset date. (Tr. 165). He successfully completed high school and previously worked as an auto assembly supervisor, appliance assembler supervisor, a parking attendant, and a gaming monitor. (Tr. 60). Plaintiff applied for benefits on November 17, 2010, alleging that he had been disabled since June 14, 2010, due to heart disease, GERD, muscle fatigue, manic depression, and " borderline diabetes." (Tr. 165-71, 211). Plaintiff's application was denied, after which time he requested a hearing before an Administrative Law Judge (ALJ). (Tr. 108-64). On May 7, 2012, Plaintiff appeared before ALJ David Bruce with testimony being offered by Plaintiff and a vocational expert. (Tr. 66-107). In a written decision dated May 10, 2012, the ALJ determined that Plaintiff was not disabled. (Tr. 50-61). The Appeals Council declined to review the ALJ's determination, rendering it the Commissioner's final decision in the matter. (Tr. 1-6). Plaintiff subsequently initiated this pursuant to 42 U.S.C. § 405(g), seeking judicial review of the ALJ's decision.

RELEVANT MEDICAL HISTORY

On December 2, 2009, Plaintiff participated in a treadmill stress test the results of which were unremarkable. (Tr. 318). On December 15, 2009, Plaintiff participated in an echocardiography examination the results of which revealed " no wall motion abnormalities with normal left ventricular function." (Tr. 327).

On January 13, 2010, Plaintiff was examined by Dr. Ogubay Mesmer. (Tr. 328-30). A physical examination revealed the following:

Blood Pressure:

138/84 Sitting, Left arm, regular cuff

Pulse:

64/min

Respirations:

16/min

Weight:

234.00 lbs

Height:

73"

BMI:

31

Constitutional: cooperative, alert and oriented, well developed, well nourished, in no acute distress
Skin: warm and dry to touch, no apparent skin lesions, no apparent masses noted
Head: normocephalic, non tender, no palpable masses
Eyes: EOMS intact, PERRL, conjunctivae and lids unremarkable
ENT: ears unremarkable, throat clear, without erythema, good dentition
Neck: no palpable masses or adenopathy, no thyromegaly, JVP normal, carotid pulses are full and equal bilaterally without bruits Chest: normal symmetry, no tenderness to palpation, normal respiratory excursion, no intercostal retraction, no use of accessory muscles, normal diaphragmatic excursion, clear to auscultation Cardiac: regular rhythm, S1 normal, S2 normal, no S3 or S4, apical impulse not displaced, no murmurs, no gallops, no rubs detected Abdomen: abdomen soft, bowel sounds normoactive, no masses, non-tender, no bruits
Peripheral Pulses: femoral pulses are full and equal bilaterally with no bruits auscultated, popliteal pulses are full and equal bilaterally with no bruits auscultated, posterior tibial pulses are full and equal bilaterally with no bruits auscultated
Extremities & Back: no deformities, no clubbing, no cyanosis, no erythema, no edema, there are no spinal abnormalities noted, normal muscle strength and tone
Psychiatric: appropriate mood, memory and judgment Neurological: no gross motor or sensory deficits noted

(Tr. 328-29). The doctor characterized Plaintiff's condition as " stable" and indicated he would continue Plaintiff's current medication and " see him back in the office in 1 year." (Tr. 329).

On November 9, 2010, Plaintiff reported to the emergency room complaining of chest pain which rated " about 4 to 5 out of 10." (Tr. 284). Plaintiff described his pain as " a heavy weight like on his chest." (Tr. 284). A physical examination revealed the following:

GENERAL: Alert and oriented 46-year-old Caucasian male who appears his stated age.
HEENT: Grossly within normal limits. He is sporting a goatee.
NECK: Carotids are brisk without bruits. There is no jugular venous distention.
LUNGS: Clear to auscultation.
HEART: Regular S1, S2 rhythm. Heart sounds are distant but audible. There is no systolic flow murmur, no click or heave.
ABDOMEN: Soft, nontender, bowel sounds are present in 4 quadrants.
EXTREMITIES: No peripheral edema or cyanosis.
VITAL SIGNS: Blood pressure 146/86, pulse is 72 and regular, respirations 16 and ...

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