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Schalk v. Commissioner of Social Security

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

October 19, 2016

MARC E. SCHALK, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Mona K. Majzoub, Magistrate Judge.

          OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, GRANTING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, AND REVERSING AND REMANDING THE DECISION OF THE COMMISSIONER FOR FURTHER PROCEEDINGS

          DAVID M. LAWSON, United States District Judge.

         The plaintiff filed the present action on June 11, 2015 seeking review of the Commissioner's decision denying the plaintiff's claims for a period of disability under Titles II and XVI of the Social Security Act for disability insurance benefits and supplemental security income, respectively. The plaintiff filed this action after previously seeking judicial review of an unfavorable decision by the Commissioner, and following a remand by this Court for further consideration. The judgment in the previous case was entered by another judge of this district, and, therefore, the present action should have been identified as a companion case and reassigned to the original judge. See E.D. Mich. LR 83.11(b)(7)(A)(iii). However, the original judge refused to accept the transfer.

         The present case was referred to United States Magistrate Judge Mona K. Majzoub, the assigned magistrate judge, pursuant to 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 an award of benefits. The defendant filed a motion for summary judgment requesting affirmance of the decision of the Commissioner. Magistrate Judge Majzoub filed a report on August 9, 2016 recommending that the plaintiff's motion for summary judgment be granted in part, the defendant's motion for summary judgment be denied, the decision of the Commissioner be reversed, and the matter be remanded for further proceedings. The defendant filed timely objections to the recommendation and the plaintiff filed a response to the defendant's objections. This 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 defendant's objections, and the plaintiff's response, and has made a de novo review of the administrative record in light of the parties' submissions.

         The plaintiff, who is now 43 years old, filed his protective applications for disability insurance benefits and supplemental security income on May 22, 2007, when he was 34. The plaintiff completed the twelfth grade, and previously worked as a cook, an auto parts inspector, a retail groundskeeper, a hospital housekeeper, a security guard, and a bus driver. In the original applications that are the subject of the present appeal, the plaintiff alleged a disability onset date of August 1, 2006. He later amended his applications to allege an onset date of January 9, 2007. The plaintiff has been diagnosed with affective disorder and anxiety disorder. He testified at the second administrative hearing that he suffers from panic attacks that occur two to three times per week. The panic attacks last approximately 15 minutes, and they interfere with his driving. They also are provoked when he is in the presence of even a few people.

         The plaintiff's applications for disability benefits and supplemental security income were denied initially on August 1, 2007. The plaintiff timely filed a request for an administrative hearing, and on August 12, 2009, the plaintiff appeared before Administrative Law Judge (ALJ) Peter N. Dowd. On December 8, 2009, ALJ Dowd issued a written decision in which he found that the plaintiff was not disabled. On September 2, 2010, the Appeals Council denied the plaintiff's request for review of the ALJ's decision. The plaintiff filed his complaint seeking judicial review on September 30, 2010. On September 22, 2011, another judge in this district granted the plaintiff's motion for summary judgment and remanded the case to the ALJ to comply with the procedural requirements of the treating source rule. On September 10, 2013, the plaintiff appeared before ALJ Kathleen H. Eiler. On December 6, 2013, ALJ Eiler issued a written decision in which she found that the plaintiff was not entitled to benefits because he was capable of performing a limited range of work at all exertional levels that exists in significant numbers in the national economy. The Appeals Council denied the plaintiff's request for review of the ALJ's decision on April 13, 2015, and thereafter the plaintiff timely filed his second complaint seeking judicial review.

         ALJ Eiler reached her 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. She found that the plaintiff had not engaged in substantial gainful activity since January 9, 2007, even though he did perform some work thereafter (step one); the plaintiff suffered from affective disorder and anxiety disorder, 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, which the ALJ found required light to medium exertion, and was unskilled and semi-skilled (step four).

         In applying the fourth and fifth steps, the ALJ concluded that the plaintiff had the residual functional capacity to perform a range of work at all exertional levels reduced by the following non-exertional limitations: the claimant can perform only simple, routine, repetitive tasks with minimal changes in a routine work setting and no production rate pace work. The claimant can occasionally interact with supervisors, but should have no more than minimal superficial interaction with coworkers, and no interaction with the general public.

         A vocational expert (VE) testified that the plaintiff would be able to perform the requirements of representative occupations in the regional and national economies such as kitchen helper (274, 698 jobs nationally), housekeeping cleaner (131, 353 jobs nationally), and hand packager (57, 481 jobs nationally). Based on those findings, and considering the plaintiff's age, education, work experience, and residual functional capacity, the ALJ concluded that the plaintiff was not disabled within the meaning of the Social Security Act. However, the VE also testified that if the claimant was off task fifteen percent of each day, or had one day each week of an unscheduled absence, all work would be precluded.

         The magistrate judge reported that the ALJ failed to address properly an opinion by one of the plaintiff's treating psychiatrists, and therefore a remand was required to remedy that fault. The defendant insists that the opinion does not amount to a “medical opinion” within the meaning of 20 C.F.R. § 404.1527(a)(2), but rather is an opinion on an item reserved to the Commissioner per 20 C.F.R. § 404.1527(d)(1).

         The evidence that is the focus of the dispute is a form submitted by the Michigan Family Independence Agency to Dr. Munawar Ahmad, the plaintiff's treating psychiatrist, which Dr. Ahmad completed on August 27, 2007. The purpose of the form, according to its instructions, was “to assist the FIA in determining the extent of this client's disability as it ...


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