United States District Court, W.D. Michigan, Southern Division
MOHAMED M. SAEED MOUSA, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant,
L. MALONEY United States District Judge.
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.
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 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.
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). (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).
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).
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.
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
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.
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
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.)
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).
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
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. The first, completed by Dr.
Abdul Hameed AL-Riashy was written when Plaintiff was
fifty-eight years old. 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.
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 ...