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Cox v. Commissioner of Social Security

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

October 13, 2016

RONDAL COX, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Stephanie Dawkins Davis Magistrate Judge.

         OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, AFFIRMING THE FINDINGS OF THE COMMISSIONER, AND DISMISSING COMPLAINT

          DAVID M. LAWSON United States District Judge.

         The plaintiff filed the present action on July 10, 2015 seeking review of the Commissioner's decision denying the plaintiff's claims for disability and supplemental security income benefits under Title II and Title XVI of the Social Security Act. The case was referred to United States Magistrate Judge Stephanie Dawkins Davis's predecessor, and then to her, under 28 U.S.C. § 636(b)(1)(B) and E.D. Mich. LR 72.1(b)(3). Thereafter, the plaintiff filed a motion for summary judgement to reverse the decision of the Commissioner and remand the case for further consideration by the administrative law judge. The defendant filed a motion for summary judgment requesting affirmance of the decision of the Commissioner. Magistrate Judge Davis filed a report on August 19, 2016 recommending that the defendant's motion for summary judgment be granted, the plaintiff's motion for summary judgment be denied, and the decision of the Commissioner be affirmed. The plaintiff filed timely objections. The matter is now before the Court.

         The filing of timely objections to a report and recommendation requires the court to “make a de novo determination of those portions of the report or specified findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667 (1980); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This de novo review requires the court to re-examine all of the relevant evidence previously reviewed by the magistrate judge in order to determine whether the recommendation should be accepted, rejected, or modified in whole or in part. 28 U.S.C. § 636(b)(1).

         “The filing of objections provides the district court with the opportunity to consider the specific contentions of the parties and to correct any errors immediately, ” Walters, 638 F.2d at 950, enabling the court “to focus attention on those issues - factual and legal - that are at the heart of the parties' dispute, ” Thomas v. Arn, 474 U.S. 140, 147 (1985). As a result, “‘[o]nly those specific objections to the magistrate's report made to the district court will be preserved for appellate review; making some objections but failing to raise others will not preserve all the objections a party may have.'” McClanahan v. Comm'r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (quoting Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987)).

         The Court has reviewed the file, the report and recommendation, the plaintiff's objections, and the Commissioner's response, and has made a de novo review of the administrative record in light of the parties' submissions.

         The plaintiff, who is now 53 years old, filed his applications for disability insurance and supplemental security income benefits on October 26, 2012, when he was 49. The plaintiff has a limited education, but he speaks English and has worked as a general laborer, delivery driver, and machinist. In the applications that are the subject of the present appeal, the plaintiff alleged a disability onset date of October 1, 2009, although he amended that date at the administrative hearing to May 7, 2013. The plaintiff has been diagnosed with chronic left foot pain, left femoral artery occlusion (status post surgical bypass), right knee pain due to deformity, low back pain due to degenerative lumbosacral disc disease, recurrent anxiety and depression, tobacco use disorder, and alcohol abuse.

         The plaintiff's applications for disability and SSI benefits were denied initially on January 2, 2013. The plaintiff timely filed a request for an administrative hearing, and on March 20, 2014, the plaintiff appeared before Administrative Law Judge (ALJ) Gregory Holiday. On April 25, 2014, ALJ Holiday issued a written decision in which he found that the plaintiff was not disabled. On June 18, 2015, the Appeals Council denied the plaintiff's request for review of the ALJ's decision. The plaintiff filed his complaint seeking judicial review on July 10, 2015.

         ALJ Holiday reached his conclusion that the plaintiff was not disabled by applying the five-step sequential analysis prescribed by the Secretary in 20 C.F.R. §§ 404.1520, 416.920. He found that the plaintiff had not engaged in substantial gainful activity since May 17, 2013 (step one); the plaintiff suffered from chronic left foot pain, left femoral artery occlusion (status post surgical bypass), right knee pain due to deformity, low back pain due to degenerative lumbosacral disc disease, recurrent anxiety and depression, tobacco use disorder, and alcohol abuse, impairments which were “severe” within the meaning of the Social Security Act (step two); none of those impairments alone or in combination met or equaled a listing in the regulations (step three); and the plaintiff could not perform his previous work as a general laborer, delivery driver, or machinist - all of which required a medium exertional level of effort - because each would exceed his current functional capacity (step four).

         In applying the fourth and fifth steps, the ALJ concluded that the plaintiff had the residual functional capacity (RFC) to perform a limited range of light work, as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that he (1) could only occasionally operate foot controls with his left leg; (2) could not climb ladders, ropes, or scaffolds; (3) could only occasionally climb ramps or stairs; (4) must be limited to only occasional stooping, crouching, kneeling, or crawling; (5) must be allowed to use a cane or other assistive device for walking; (6) must have no exposure to hazardous machinery or unprotected heights; (7) could only perform simple, routine tasks in a low-stress work environment requiring only occasional decision making or changes in work setting; and (8) must have no more than occasional interaction with the public and co-workers. A vocational expert testified that the plaintiff could perform unskilled light work such as hand packer (12, 500 jobs in the region) and cleaner (15, 000 jobs regionally). Based on those findings and using Medical Vocational Rule 202.11 as a framework, the ALJ concluded that the plaintiff was not disabled within the meaning of the Social Security Act.

         At the heart of the dispute in this case is the ALJ's determination of the plaintiff's RFC to perform substantial gainful activity. The crux of that issue focuses on the plaintiff's need for an ambulatory assistive device - a cane - to walk. The plaintiff maintains that the ALJ did not emphasize that limitation enough in determining the RFC, and that the ALJ did not credit the plaintiff's description of his own limitations.

         At the administrative hearing, the plaintiff testified that he indeed uses a cane to help him walk. He said that he takes short walks and uses a cane, but he gets winded during long walks so he takes his crutches. Tr 31. He can only walk “a little ways” on his own. Tr 31. He acknowledged that he lives alone in an apartment above his mother's dwelling. Tr. 32-33. He can cook, but he cannot do laundry because the washer is in the basement, and, because he lives on the second floor, he cannot carry laundry down two flights of stairs. Tr. 34. He shops for food with his mother, but cannot walk down every aisle with her. He uses a cane at the store. Tr. 35. He watches television most of the day, but midday he walks around the block “to get everything moving.” Tr. 36. He had an auto accident several years ago that shattered his right kneecap, but did not start using a cane until after he had his artery surgery that led to his disability. Tr. 38. He does not drive, because he cannot afford to pay a fine to reinstate his license. Tr. 41. He walks around the block daily most days, a little farther on good days, and not at all on bad days. Tr. 42. Bad days are four to eight per month. Tr. 52. He does not know how long he can stand at a time. Tr. 43. He is able to lift and carry a gallon of milk. Tr. 44. He has pain ...


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