United States District Court, W.D. Michigan, Southern Division
DANIEL L. PELAK, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant,
J. JONKER CHIEF UNITED STATES DISTRICT JUDGE.
a social security action brought under 42 U.S.C. §
405(g) seeking judicial review of a final decision of the
Commissioner of the Social Security Administration
(Commissioner). Plaintiff Daniel Pelak seeks review of the
Commissioner's decision denying his claim for disability
insurance benefits (DIB) under Title II of the Social
scope of judicial review in a social security case is limited
to determining whether the Commissioner applied the proper
legal standards in making her decision and whether there
exists in the record substantial evidence supporting that
decision. See Brainard v. Sec'y of Health & Human
Servs., 889 F.2d 679, 681 (6th Cir. 1989). The Court may
not conduct a de novo review of the case, resolve
evidentiary conflicts, or decide questions of credibility.
See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.
1984). It is the Commissioner who is charged with finding the
facts relevant to an application for disability benefits, and
her findings are conclusive provided they are supported by
substantial evidence. See 42 U.S.C. § 405(g).
evidence is more than a scintilla, but less than a
preponderance. See Cohen v. Sec'y of Health &
Human Servs., 964 F.2d 524, 528 (6th Cir. 1992)
(citations omitted). It is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion. See Richardson v. Perales, 402 U.S. 389,
401 (1971); Bogle v. Sullivan, 998 F.2d 342, 347
(6th Cir. 1993). In determining the substantiality of the
evidence, the Court must consider the evidence on the record
as a whole and take into account whatever in the record
fairly detracts from its weight. See Richardson v.
Sec'y of Health & Human Servs., 735 F.2d 962,
963 (6th Cir. 1984). The substantial evidence standard
presupposes the existence of a zone within which the decision
maker can properly rule either way, without judicial
interference. See Mullen v. Bowen, 800 F.2d 535, 545
(6th Cir. 1986) (citation omitted). This standard affords to
the administrative decision maker considerable latitude, and
indicates that a decision supported by substantial evidence
will not be reversed simply because the evidence would have
supported a contrary decision. See Bogle, 998 F.2d
at 347; Mullen, 800 F.2d at 545.
was sixty-six years of age on the date of the Administrative
Law Judge's (ALJ) decision. (PageID.121, 249.) He
graduated college, obtained a certificate in gemology, and
was previously employed as a retail store owner.
(PageID.147-148, 153.) Plaintiff applied for benefits on
December 2, 2011, alleging that he had been disabled since
November 1, 2011, due to an inability to stand, walk, or
lift; back pain; injuries due to a 2002 motorcycle accident;
rotator cuff surgery on his right shoulder; tumor removal
from his ribs in 1998; skin cancer, now in remission; and
ongoing pain due to his conditions. (PageID.249, 379-385.)
Plaintiff's application was denied on June 14, 2012,
after which time Plaintiff requested a hearing before an ALJ.
(PageID.284-289.) On April 23, 2013, Plaintiff appeared with
his counsel for an administrative hearing before ALJ James
Prothro. (PageID.193-244.) On August 16, 2013, the ALJ
determined that Plaintiff was not disabled. (PageID.261-278.)
On January 2, 2014, however, the Appeals Council remanded the
case for further proceedings and a reevaluation of
Plaintiff's past relevant work. (PageID.279-282.)
Accordingly, ALJ Prothro conducted a second hearing on May 1,
2014, at which Plaintiff, a vocational expert (VE), and a
medical expert, testified. (PageID.141-191.) On May 16, 2014,
ALJ Prothro issued his second decision, again finding
Plaintiff was not disabled. (PageID.121-140.) On January 29,
2016, the Appeals Council declined to review the ALJ's
decision, making it the Commissioner's final decision in
the matter. (PageID.19-24.) Plaintiff subsequently initiated
this action under 42 U.S.C. § 405(g).
insured status expired on June 30, 2013. (PageID.124, 249).
Accordingly, to be eligible for DIB under Title II of the
Social Security Act, Plaintiff must establish that he became
disabled prior to the expiration of his insured status.
See 42 U.S.C. § 423; Moon v. Sullivan,
923 F.2d 1175, 1182 (6th Cir. 1990).
social security regulations articulate a five-step sequential
process for evaluating disability. See 20 C.F.R.
§ 404.1520(a-f). If the Commissioner can make a dispositive
finding at any point in the review, no further finding is
required. See 20 C.F.R. § 404.1520(a). The
regulations also provide that if a claimant suffers from a
nonexertional impairment as well as an exertional impairment,
both are considered in determining the claimant's
residual functional capacity (RFC). See 20 C.F.R.
has the burden of proving the existence and severity of
limitations caused by his impairments and that he is
precluded from performing past relevant work through step
four. Jones v. Comm'r of Soc. Sec., 336 F.3d
469, 474 (6th Cir. 2003). At step five, it is the
Commissioner's burden “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.
second decision, ALJ Prothro determined that Plaintiff's
claim failed at the fourth step of the evaluation. At step
one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity during the period between his
alleged onset date and the date last insured. (PageID.126.)
At step two, the ALJ determined Plaintiff had the following
severe impairments: (1) status post-surgery of the right
shoulder for a labrum tear and clavicle resection; (2)
chronic back pain; (3) right hip bursitis; (4) osteoarthritis
of both knees; (5) status post right shoulder superior labral
anterior-posterior (SLAP) surgery; (6) gastroesophageal
reflux disease (GERD); and (7) 1985 benign tumor on ribs.
(PageID.126-127.) At the third step, the ALJ found that
Plaintiff did not have an impairment or combination of
impairments that met or equaled the requirements of the
Listing of Impairments. (PageID.128-129.) At the fourth step,
the ALJ determined Plaintiff retained the 4. If an individual
is capable of performing work he or she has done in the past,
a finding of “not disabled” must be made (20
C.F.R. § 404.1520(e)); 5. If an individual's
impairment is so severe as to preclude the performance of
past work, other factors including age, education, past work
experience, and residual functional capacity must be
considered to determine if other work can be performed. (20
C.F.R. § 404.1520(f)). RFC based on all the impairments
to perform sedentary work as defined in 20 CFR 404.1567(a).
(PageID.129.) Continuing with the fourth step, the ALJ
determined that Plaintiff was able to perform his past
relevant work as a retail store owner as it was actually
performed. (PageID.135.) Having made his determination at
step four, the ALJ completed his analysis and entered a
decision finding that Plaintiff was not under a disability at
any time from November 1, 2011 through June 30, 2013,
Plaintiff's date last insured. (PageID.135.)
raised a number of claims. (PageID.886.) The Court will
address them in the order they were raised during the
Plaintiff Has Not Demonstrated the ALJ Erred in Considering
Listing of Impairments, detailed in 20 C.F.R., Part 404,
Subpart P, Appendix 1, identifies various impairments which,
if present to the severity detailed therein, result in a
finding that the claimant is disabled. Plaintiff asserts that
he is entitled to relief because the ALJ erred in rejecting
the opinion of Dr. Anthony Francis, a non-examining medical