United States District Court, E.D. Michigan, Southern Division
REPORT AND RECOMMENDATION ON CROSS-MOTIONS FOR
SUMMARY JUDGMENT [11, 13]
R. GRAND United States Magistrate Judge
William David Nagy (“Nagy”) brings this action
pursuant to 42 U.S.C. §405(g), challenging a final
decision of Defendant Commissioner of Social Security
(“Commissioner”) denying his application for
Disability Insurance Benefits (“DIB”) under the
Social Security Act (the “Act”). Both parties
have filed summary judgment motions [11, 13], which have been
referred to this Court for a Report and Recommendation
pursuant to 28 U.S.C. §636(b)(1)(B).
reasons set forth below, the Court finds that the
Administrative Law Judge's (“ALJ”) conclusion
that Nagy is not disabled under the Act is not supported by
substantial evidence. Accordingly, the Court RECOMMENDS that
the Commissioner's Motion for Summary Judgment  be
DENIED, Nagy's Motion for Summary Judgment  be
GRANTED IN PART to the extent it seeks remand and DENIED IN
PART to the extent it seeks an award of benefits, and that,
pursuant to sentence four of 42 U.S.C. §405(g), this
case be REMANDED to the ALJ for further proceedings
consistent with this Report and Recommendation.
March 9, 2011, Nagy filed an application for DIB, alleging a
disability onset date of December 25, 2010. (Tr. 202-03).
This application was denied initially on July 21, 2011. (Tr.
101-04). Nagy filed a timely request for an administrative
hearing, which was held on April 2, 2012, before ALJ Oksana
Xenos. (Tr. 50-67). On April 17, 2012, ALJ Xenos issued a
written decision denying that application. (Tr. 83-91). On
August 27, 2013, the Appeals Council issued an order
remanding the case to the ALJ with various instructions. (Tr.
97-99). ALJ Xenos held a second hearing on February 24, 2014
(Tr. 28-49), and issued a second written decision, on March
14, 2014, again denying Nagy's application for DIB (Tr.
13-22). On December 31, 2015, the Appeals Council denied
review. (Tr. 1-5). Nagy timely filed for judicial review of
the final decision on February 23, 2016. (Doc. #1).
Framework for Disability Determinations
the Act, DIB is available only for those who have a
“disability.” See Colvin v. Barnhart,
475 F.3d 727, 730 (6th Cir. 2007). The Act defines
“disability” as the:
inability to engage in any 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 12 months.
42 U.S.C. §1382c(a)(3)(A). The Commissioner's
regulations provide that a disability is to be determined
through the application of a five-step sequential analysis:
Step One: If the claimant is currently engaged in substantial
gainful activity, benefits are denied without further
Step Two: If the claimant does not have a severe impairment
or combination of impairments that “significantly
limits . . . physical or mental ability to do basic work
activities, ” benefits are denied without further
Step Three: If the claimant is not performing substantial
gainful activity, has a severe impairment that is expected to
last for at least twelve months, and the severe impairment
meets or equals one of the impairments listed in the
regulations, the claimant is conclusively presumed to be
disabled regardless of age, education, or work experience.
Step Four: If the claimant is able to perform his or her past
relevant work, benefits are denied without further analysis.
Step Five: Even if the claimant is unable to perform his or
her past relevant work, if other work exists in the national
economy that the claimant can perform, in view of his or her
age, education, and work experience, benefits are denied.
Scheuneman v. Comm'r of Soc. Sec., 2011 WL
6937331, at *7 (E.D. Mich. Dec. 6, 2011) (citing 20 C.F.R.
§§404.1520, 416.920); see also Heston v.
Comm'r of Soc. Sec., 245 F.3d 528, 534 (6th Cir.
2001). “The burden of proof is on the claimant
throughout the first four steps . . . . If the analysis
reaches the fifth step without a finding that claimant is not
disabled, the burden transfers to the [defendant].”
Preslar v. Sec'y of Health & Human Servs.,
14 F.3d 1107, 1110 (6th Cir. 1994).
Nagy's Reports and Testimony
disability report, Nagy, who was born in 1967, indicated that
he is 5'7” tall and weighs 233 pounds. (Tr. 232,
257). He lives in a house with his wife and two daughters.
(Tr. 32, 54, 241). He completed the tenth grade but had no
further education. (Tr. 54, 233). Previously, he worked as a
kiln operator for more than twenty years, even after having
fusion surgery on his back in 2009. (Tr. 61, 233). He stopped
working on December 25, 2010, however, when he slipped and
fell at home and reinjured his back. (Tr. 61, 232).
alleges disability as a result of back and hip pain, asthma,
chronic obstructive pulmonary disease, and depression. (Tr.
232). In a function report, he indicated that the pain in his
back and hip is so bad that he can hardly walk and has
difficulty bending and picking up objects. (Tr. 241). At the
time of the 2012 hearing, he had been using a cane for
approximately eighteen months. (Tr. 54). At the 2014 hearing,
Nagy, who was still using a cane, testified that he cannot
lift, twist, push or pull, or climb steps. (Tr. 33-34). He
testified that he had a spinal stimulator implanted in 2012,
saying he uses it “24/7.” (Tr. 38-39). He further
testified that this device helps with his pain by