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Mousa v. Commissioner of Social Security

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

January 18, 2017



          PAUL L. MALONEY United States District Judge.

         This is a social security action brought under 42 U.S.C. § 405(g) to review a final decision of the Commissioner of Social Security denying Plaintiff's claim for Disability Insurance Benefits (DIB) under Title II of the Social Security Act. Section 405(g) limits the Court to a review of the administrative record, and provides that if the Commissioner's decision is supported by substantial evidence, it shall be conclusive.


         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 evidence 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 fifty-four years of age as of his date last insured. (PageID.39, 96.) He was born in Yemen and reported he is able to speak and understand English, but not read and understand English. (PageID.67, 215.) He previously worked as a machine operator. (PageID.71.) Plaintiff applied for benefits on December 4, 2013, alleging that he had been disabled since January 10, 2005, due to back and neck problems. (PageID.96, 178-184.) Plaintiff's application was denied on February 25, 2014, after which time he requested a hearing before an Administrative Law Judge (ALJ).[1] (PageID.108-114.) On May 12, 2015, Plaintiff appeared with his counsel before ALJ Paul W. Jones for an administrative hearing at which time both Plaintiff (through an interpreter) and a vocational expert (VE) testified. (PageID.56-81.) At the hearing, Plaintiff also amended his alleged onset date to July 16, 2005. (PageID.210.) In a written decision dated May 22, 2015, the ALJ determined that Plaintiff was not disabled. (PageID.39-55.) On February 10, 2016, the Appeals Council declined to review the ALJ's decision, making it the Commissioner's final decision in the matter. (PageID.33-37.) Plaintiff subsequently initiated this action under 42 U.S.C. § 405(g).

         Plaintiff's insured status expired on March 31, 2010. (PageID.96.) 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).[2] 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.

         ALJ Jones determined Plaintiff's claim failed at step four. At step one the ALJ found that Plaintiff had not engaged in substantial gainful activity during the period between his amended alleged disability onset date of July 16, 2005, and his date last insured of March 31, 2010. (PageID.44.) At step two, the ALJ found that Plaintiff suffered from the severe impairment of a right thumb amputation. (PageID.44.) The ALJ also determined that Plaintiff had non-severe impairments of typhoid, irritable bowel syndrome, gastritis, and neck and back pain. (PageID.45.) At step three, 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 found in 20 C.F.R. Pt. 404, Subpt. P, App. 1. (PageID.46.) At step four, the ALJ determined Plaintiff retained the RFC based on all the impairments through his date last insured to perform:

a full range of work at all exertional levels, but was non-exertionally limited to: occasional handling and fingering of objects with the dominant right hand; in occupations that do not require written communication in English.

         (PageID.46.) Continuing with the fourth step, the ALJ determined that Plaintiff was capable of performing his past relevant work. This past relevant work did not require the performance of work-related activities precluded by Plaintiff's RFC. (PageID.48-49.)

         Although unnecessary, the ALJ included an alternative step five determination based on the testimony of the VE. The VE testified that Plaintiff could perform other work as a dealer accounts investigator (45, 000 positions), counter clerk (31, 000 positions), and school bus monitor (5, 000 positions). (PageID.75-78.) Based on this record, the ALJ found that Plaintiff was capable of making a successful adjustment to work that exists in significant numbers in the national economy. (PageID.50.)

         Accordingly, the ALJ concluded that Plaintiff was not disabled from July 16, 2005, the amended alleged onset date, through March 31, 2010, Plaintiff's date last insured. (PageID.50.)


         As noted above, in order to succeed in this DIB claim, Plaintiff must establish that he became disabled prior to the expiration of his insured status. See 42 U.S.C. § 423. “[I]nsured status is a requirement for an award of disability insurance benefits.” Garner v. Heckler, 745 F.2d 383, 390 (6th Cir. 1984). Since Plaintiff's insured status for purposes of receiving DIB expired on March 31, 2010, he cannot be found disabled unless he can establish that a disability existed on or before that date. Id. “Evidence relating to a later time period is only minimally probative.” Jones v. Comm'r of Soc. Sec., No. 96-2173, 1997 WL 413641 at *1 (6th Cir. July 17, 1997) (citing Siterlet v. Sec'y of Health & Human Servs., 823 F.2d 918, 920 (6th Cir. 1987)). Evidence of a claimant's medical condition after the last insured date is only considered to the extent it illuminates that condition before the expiration of the claimant's insured status. Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988).

         At the administrative hearing, Plaintiff testified that he was born in Yemen, but since 1973, he spent seventy to eighty percent of the time in the United States. (PageID.67.) His last employment ended in 2004 when the factory he was working at shut down. (PageID.68.) After experiencing back pain, Plaintiff testified he returned to Yemen for treatment. (PageID.69-70.) He did not receive treatment in the United States between his alleged onset date and his date last insured. Though he asserted he was incapable of working even in 2010, Plaintiff admitted his condition has continued to degenerate. (PageID.70.)

         As his counsel stated at the hearing, however, all the records relating to Plaintiff's treatment while in Yemen were lost when the hospital he treated at was bombed. (PageID.64.) Consequently, as the ALJ observed, there were few records relating to the relevant time period, and most of the records are dated between 2013 and 2015, well after his date last insured. Noting this fact, the ALJ found only three records addressed the relevant time period.[3] The first, completed by Dr. Abdul Hameed AL-Riashy was written when Plaintiff was fifty-eight years old.[4] The doctor stated Plaintiff was first seen on June 30, 2006, for complaints of lower back pain that radiated to both legs and which caused Plaintiff to be unable to walk or even stand. Plaintiff also had neck pain upon flexion. (PageID.283.) An X-Ray found degenerative changes. Plaintiff was treated with medication and prescribed three weeks of therapy. Though the doctor stated Plaintiff was seen “many times, ” the next record discussed is one from August 21, 2013. This record demonstrates Plaintiff sought treatment, complaining of back pain radiating to his legs. (PageID.283.) An MRI completed that same date revealed straightening of the lumbar column and moderate degenerative changes at ¶ 3-L4 and L4-L5. Plaintiff was again treated with medication and prescribed physical therapy. (PageID.283.)

         The second report was completed by Dr. Raed Al-Sofy when Plaintiff was fifty-nine years old. It is clear that English is not the doctor's first language, and portions of the statement are difficult to comprehend. Nevertheless it appears Plaintiff was seen by the doctor between March 1, 2005 and June 2, 2006. Plaintiff was “suffering from high fever, sweating, muolgia [sic], [and] disarray helicobacter.” (PageID.284.) A reference to orthopedic surgery is mentioned, but it is unclear in what context it was raised. Plaintiff does not claim he was ever advised to undergo surgery, and the most the Court can surmise from the record is that it was discussed ...

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