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Pelak v. Commissioner of Social Security

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

November 15, 2016

DANIEL L. PELAK, Plaintiff,



         This is 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 Security Act.


         The 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).

         Substantial 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.


         Plaintiff 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).

         Plaintiff's 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).


         The social security regulations articulate a five-step sequential process for evaluating disability. See 20 C.F.R. § 404.1520(a-f).[1] 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. § 404.1545.

         Plaintiff 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.

         In his 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.)


         Plaintiff raised a number of claims. (PageID.886.) The Court will address them in the order they were raised during the sequential evaluation.

         1. Plaintiff Has Not Demonstrated the ALJ Erred in Considering the

         Medical Expert's Opinion.

         The 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 ...

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