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Swalwell v. Colvin

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

June 4, 2015

CAROLYN W. COLVIN Commissioner of Social Security, Defendant.




This matter is before the court on the parties' cross motions for summary judgment as to plaintiff James Swalwell's claim for judicial review of a final decision of defendant Commissioner denying his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act (42 U.S.C. §§ 401-34). The matter was referred to Magistrate Judge Patricia T. Morris who issued a report and recommendation on April 30, 2015, recommending that Swalwell's motion be denied and that the Commissioner's motion be granted. Swalwell filed timely objections to the Magistrate's report, which this court has duly considered. For the reasons stated below, Swalwell's objections are overruled and the court shall accept Magistrate Judge Morris's report.


On October 18, 2011, Plaintiff James Swalwell applied for DIB, alleging that he had become disabled on February 14, 2009, following an on-the-job injury (Tr. at 27). The Commissioner considered discogenic and degenerative back disorders and other unspecific arthropathies as potential disabilities and denied Plaintiff's claim on April 9, 2012 (Tr. at 97-98). Administrative Law Judge ("ALJ") David A. Mason, Jr., conducted a hearing regarding Plaintiff's claim on April 25, 2013. Represented by counsel, Swalwell testified on his own behalf. Vocational expert Michael Rosko also gave testimony.

On June 10, 2013, the ALJ issued a written opinion that Swalwell was not disabled within the meaning of the Social Security Act's Disability Insurance Benefit provisions. Based on Swalwell's testimony at the hearing, as well as medical records provided by several of Swalwell's physicians from 2008 through 2013, the ALJ determined that Swalwell had "degenerative disc disease of the lumbar spine status post lumbar microdiskectomy and right shoulder impingement" (Tr. at 25) - severe impairments under the Social Security Act that significantly limit performance of basic work activities ( Id.; see also 20 C.F.R. § 404.1521). However, the ALJ also found that neither of these impairments was a presumptive disability under the Social Security Act (Tr. at 25-26). Based on this diagnosis as well as testimony from vocational expert Rosko, the ALJ concluded that, while Swalwell was unable to perform his previous work as a maintenance technician, Swalwell had the residual functional capacity ("RFC") to perform light work, including work as a security guard, mail sorter, cashier, or industrial processor (Tr. at 79-81). In reaching his conclusion that Swalwell was not disabled, the ALJ gave "little weight" to the opinion of Dr. Chodoroff, Plaintiff's most recent treating physiatrist, on grounds that Dr. Chodoroff's assessment was based on an aggravation of symptoms over the three weeks leading up to his physical examination and was inconsistent with the record as a whole (Tr. at 29). The ALJ additionally found that Plaintiff's testimony about his daily or weekly activities was inconsistent with his alleged functional limitations, as Swalwell reported significant physical pain and limited mobility yet also testified that he was able to drive, visit with friends and family, attend church, hunt with his dog, and vacation in Mexico (Tr. at 43-51).

The Social Security Administration's Appeals Council denied Swalwell's request for review on July 24, 2014 (Tr. at 1-6), and Swalwell filed suit in this court for judicial review of the administrative decision on September 16, 2014. Both sides have filed motions for summary judgment. On April 30, 2015, Magistrate Judge Morris issued her report and recommendation that the Commissioner's motion for summary judgment should be granted and Swalwell's motion for summary judgment should be denied. Swalwell's objections to that report are now before the court. In his objections, Swalwell argues that the ALJ's failure to incorporate lumbar radiculopathy into his RFC was not harmless error and that the ALJ did not give due deference to the opinion of Swalwell's treating physiatrist. For the reasons stated below, Swalwell's objections lack merit.


Judicial review of benefits decisions made by the Commissioner of Social Security after a hearing is authorized by 42 U.S.C. § 405(g). When reviewing a magistrate judge's report and recommendation upon objection from any party, the court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). The court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." Id.

A district court may affirm, modify, or reverse the Commissioner's decision, with or without remand. See 42 U.S.C. § 405(g). Findings of fact by the Commissioner are conclusive if supported by substantial evidence. Id. The court must affirm the decision unless it determines that the Commissioner "has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence." Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004). The court may not evaluate the credibility of witnesses or try the case de novo. Ulman v. Comm'r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2007).

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 Serv., 25 F.3d 284, 286 (6th. Cir. 1994). A court may not reverse the Commissioner's decision merely because it disagrees or because substantial evidence can also be found in the record to support the opposite conclusion. McClanahan v. Comm'r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006).


A. ALJ's Consideration of Lumbar Radiculopathy in Swalwell's RFC

Swalwell argues that the ALJ's failure to "incorporate" the functional limitations of lumbar radiculopathy into his RFC is reversible error (Pl.'s Obj. to Report & Rec. at 2). The ALJ did not include lumbar radiculopathy among Swalwell's severe impairments but considered Dr. Chodoroff's medical report on this condition in formulating the RFC, ultimately giving "little weight" to Dr. Chodoroff's opinion because of its inconsistency with Plaintiff's testimony and medical history (Tr. at 28-29). Plaintiff concedes that the ALJ's failure to list lumbar radiculopathy expressly among his severe ...

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