United States District Court, W.D. Michigan, Southern Division
HUGH W. BRENNEMAN, Jr., Magistrate Judge.
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of the Social Security Administration (Commissioner) which granted in part his claim for disability insurance benefits (DIB) and supplemental security income (SSI).
Plaintiff was born on August 20, 1965 (AR 309). He alleged a disability onset date of January 7, 2009 (AR 309). Plaintiff completed a GED, and had additional training in secretarial work and in taking care of the elderly (AR 307). He had previous employment as a utilities/cleaning supervisor for a hotel service, a security supervisor, a self-employed merchandiser and a delivery person (AR 302). He identified his disabling conditions as seizures, memory loss, depression, "stiffness of body", loss of mobility in right arm as of April 7, 2009, "mouth was frozen in a distorted position for weeks, " mind goes out, excess salivating, "whole body freezes, " and asthma (AR 301).
Plaintiff's claim for benefits was denied and he sought administrative review. The administrative law judge (ALJ) entered a partially favorable amended decision on July 27, 2012, finding that plaintiff was disabled as of September 1, 2011 (AR 10-23). This decision, which was later approved by the Appeals Council, has become the final decision of the Commissioner. Plaintiff filed this action seeking review of this decision.
After plaintiff filed his initial brief on appeal, defendant moved for a remand asking that "the entire decision rendered by the ALJ on July 27, 2012 be vacated, and that the matter be remanded to the ALJ for further administrative proceedings." Defendant's Motion for Sentence Four Remand (docket no. 17). The Court characterized the motion as follows:
Defendant contends that the ALJ's partially favorable amended decision should be reversed, remanded and vacated on the following ground, "[b]ecause Listing 11.02 requires compliance with prescribed anti-convulsant treatment as an element essential to meeting the listing, medical expert testimony concerning this issue was essential." Defendant's Brief at p. 4 [docket no. 17-1]. For his part, plaintiff "does not object to the remand, " but "does, however, object to the suggested language that the entire case will be reviewed, including the partially favorable portion of the decision." Plaintiff's Response at p. 1 (docket no. 18). In short, plaintiff wants to keep the award of benefits intact, and limit any remand to consideration of plaintiff's condition between January 7, 2009 (the alleged onset date) and August 31, 2011 (the day before plaintiff was determined to be disabled under Listing 11.02). Id. at p. 2.
Order (docket no. 19 at p. ID# 971). The Court denied defendant's motion because there was no basis to reverse and remand this matter for the reason proffered by defendant, i.e., contrary to defendant's contention, medical expert testimony was not "essential" to support the ALJ's finding that as of September 1, 2011, plaintiff met the requirements of Listing 11.02.. Id. This matter is now ripe for review.
I. LEGAL STANDARD
This Court's review of the Commissioner's decision is typically focused on determining whether the Commissioner's findings are supported by substantial evidence. 42 U.S.C. §405(g); McKnight v. Sullivan, 927 F.2d 241 (6th Cir. 1990). "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. Secretary of Health & Human Services, 25 F.3d 284, 286 (6th Cir. 1994). A determination of substantiality of the evidence must be based upon the record taken as a whole. Young v. Secretary of Health & Human Services, 925 F.2d 146 (6th Cir. 1990).
The scope of this review is limited to an examination of the record only. This Court does not review the evidence de novo, make credibility determinations or weigh the evidence. Brainard v. Secretary of Health & Human Services, 889 F.2d 679, 681 (6th Cir. 1989). The fact that the record also contains evidence which would have supported a different conclusion does not undermine the Commissioner's decision so long as there is substantial support for that decision in the record. Willbanks v. Secretary of Health & Human Services, 847 F.2d 301, 303 (6th Cir. 1988). Even if the reviewing court would resolve the dispute differently, the Commissioner's decision must stand if it is supported by substantial evidence. Young, 925 F.2d at 147.
A claimant must prove that he suffers from a disability in order to be entitled to benefits. A disability is established by showing that the claimant cannot engage in 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. See 20 C.F.R. §§ 404.1505 and 416.905; Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). In applying the above standard, the Commissioner has developed a fivestep analysis:
The Social Security Act requires the Secretary to follow a "five-step sequential process" for claims of disability. First, plaintiff must demonstrate that she is not currently engaged in "substantial gainful activity" at the time she seeks disability benefits. Second, plaintiff must show that she suffers from a "severe impairment" in order to warrant a finding of disability. A "severe impairment" is one which "significantly limits... physical or mental ability to do basic work activities." Third, if plaintiff is not performing substantial gainful activity, has a severe impairment that is expected to last for at least twelve months, and the impairment meets a listed impairment, plaintiff is presumed to be disabled regardless of age, education or work experience. Fourth, if the plaintiff's impairment does not prevent her from doing her past relevant work, plaintiff is not disabled. For the fifth and final step, even if the plaintiff's impairment does prevent her from doing her past relevant work, if other work exists in the national economy that plaintiff can perform, plaintiff is not disabled.
Heston v. Commissioner of Social Security, 245 F.3d 528, 534 (6th Cir. 2001) (citations omitted).
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 through step four. Jones v. Commissioner of Social Security, 336 F.3d 469, 474 (6th Cir. 2003). However, at step five of the inquiry, "the burden shifts to the Commissioner to identify a significant number of jobs in the economy that accommodate the claimant's residual functional capacity (determined at step four) and vocational profile." Id. If it is determined that a claimant is ...