United States District Court, E.D. Michigan, Northern Division
MAGISTRATE JUDGE'S OPINION AND ORDER ON CROSS
MOTIONS FOR SUMMARY JUDGMENT (Docs. 19, 22)
PATRICIA T. MORRIS MAGISTRATE JUDGE
Introduction and Procedural History
an action for judicial review of a final decision by the
Commissioner of Social Security (“Commissioner”)
denying Plaintiff's claim for Supplemental Security
Income (“SSI”) under Title XVI, 42 U.S.C. §
1381 et seq. (Doc. 4; Tr. 1-3). The matter is
currently before the Court on cross-motions for summary
judgment. (Docs. 19, 22). The case was reassigned from
District Judge Gerald Rosen to District Judge Mark Goldsmith
on December 27, 2016, pursuant to the retirement of Judge
Rosen. On April 20, 2017, Judge Goldsmith ordered the parties
to “discuss whether they are willing to consent, under
28 U.S.C. § 636(c), to conducting all further
proceedings in this case before the assigned Magistrate
Judge.” (Doc. 24). If the parties did not so consent,
they were required to file “a joint notice, within two
weeks of the date of [that] order, advising the Court that
the parties do not consent.” (Id.). If they
did consent, the Commissioner was instructed to “file a
fully executed Notice, Consent and Reference of a Civil
Action to a Magistrate Judge form, ” and was to perform
this action “within two weeks of the date of this
order.” (Id.). The matter was not stayed
pending the parties' decision on whether to consent. On
January 31, 2017, the undersigned magistrate judge issued a
report and recommendation to grant Furister's motion for
summary judgment. (Doc. 25). Later that day, the Commissioner
filed a notice of consent to magistrate judge jurisdiction
bearing signatures from both parties. (Doc. 26). On February
7, 2017, District Judge Goldsmith filed an order instructing
that “[i]n light of the parties' consent, the Court
orders that the matter is deemed to be before the Magistrate
Judge for entry of final judgment.” (Doc. 27). The
consent form was signed by District Judge Goldsmith on
February 7, 2017. (Doc. 28). With consent to conduct all
proceedings in this matter, including the entry of final
judgment, I therefore now convert my earlier report and
recommendation into an opinion an order.
Tracey Furister was forty-one years old as of February 17,
2015, the date of the ALJ's decision. (Tr. 29, 189). Her
application for benefits was initially denied on April 15,
2013. (Tr. 63). Furister requested a hearing before an
Administrative Law Judge (“ALJ”), which took
place before ALJ Andrew Sloss on September 26, 2014. (Tr.
40-52). Furister, represented by attorney Aaron Lemmens,
testified, as did vocational expert (“VE”)
Edwards. (Id.). A second hearing was held on January
9, 2015, to permit Furister to question the VE regarding
supplemental interrogatories sent to that expert. (Tr.
35-39). At the second hearing, Furister was represented by
attorney Lunitz, and VE Everetts testified. (Id.).
On February 17, 2015, the ALJ issued a written decision in
which he found Furister not disabled. (Tr. 18-29). On
December 9, 2015, the Appeals Council denied review. (Tr.
1-3). Furister filed for judicial review of that final
decision on February 8, 2016. (Doc. 1).
Standard of Review
district court has jurisdiction to review the
Commissioner's final administrative decision pursuant to
42 U.S.C. § 405(g). The district court's review is
restricted solely to determining whether the
“Commissioner has failed to apply the correct legal
standard or has made findings of fact unsupported by
substantial evidence in the record.” Sullivan v.
Comm'r of Soc. Sec., 595 F. App'x 502, 506 (6th
Cir. 2014) (internal citations omitted). Substantial evidence
is “more than a scintilla of evidence but less than a
preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241
(6th Cir. 2007) (internal quotations omitted).
Court must examine the administrative record as a whole, and
may consider any evidence in the record, regardless of
whether it has been cited by the ALJ. See Walker v.
Secretary of Health and Human Services, 884 F.2d 241,
245 (6th Cir. 1989). The Court will not “try the case
de novo, nor resolve conflicts in the evidence, nor decide
questions of credibility.” Cutlip v. Sec'y of
Health & Human Servs., 25 F.3d 284, 286 (6th Cir.
1994). If the Commissioner's decision is supported by
substantial evidence, “it must be affirmed even if the
reviewing court would decide the matter differently and even
if substantial evidence also supports the opposite
conclusion.” Id. at 286 (internal citations
Framework for Disability Determinations
the Act, “DIB and SSI are available only for those who
have a ‘disability.'” Colvin v.
Barnhart, 475 F.3d 727, 730 (6th Cir. 2007).
“Disability” means 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 [twelve] months.
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); 20
C.F.R. § 416.905(a) (SSI). The Commissioner's
regulations provide that 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 plaintiff can perform, in view of his or her
age, education, and work experience, benefits are denied.
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). “Through step four, the claimant bears the
burden of proving the existence and severity of limitations
caused by [his or] her impairments and the fact that she is
precluded from performing [his or] her past relevant
work.” Jones v. Comm'r of Soc. Sec., 336
F.3d 469, 474 (6th Cir. 2003). The burden transfers to the
Commissioner if the analysis reaches the fifth step without a
finding that the claimant is not disabled. Combs v.
Comm'r of Soc. Sec., 459 F.3d 640, 643 (6th Cir.
2006). At the fifth step, the Commissioner is required to
show that “other jobs in significant numbers exist in
the national economy that [the claimant] could perform given
[his or] her RFC [residual functional capacity] and
considering relevant vocational factors.”
Rogers, 486 F.3d at 241 (citing 20 C.F.R.
§§ 416.920(a)(4)(v), (g)).
the authority of the Social Security Act, the SSA has
promulgated regulations that provide for the payment of
disabled child's insurance benefits if the claimant is at
least 18 years old and has a disability that began before age
22 (20 C.F.R. 404.350(a) (5) (2013). A claimant must
establish a medically determinable physical or mental
impairment (expected to last at least twelve months or result
in death) that rendered her unable to engage in substantial
gainful activity. 42 U.S.C. § 423(d)(1)(A). The
regulations provide a five-step sequential evaluation for
evaluating disability claims. 20 C.F.R. § 404.1520.
the five-step sequential analysis, the ALJ found Furister not
disabled under the Act. (Tr. 29). The ALJ found at Step One
that Furister had not engaged in substantial gainful activity
following the alleged onset date, January 15, 2013. (Tr. 20).
At Step Two, the ALJ concluded that Furister had the
following severe impairments: “chronic obstructive
pulmonary disease (COPD) and degenerative disc
disease.” (Tr. 20-22). At Step Three, the ALJ found
that Furister's combination of impairments did not meet
or equal one of the listed impairments. (Tr. 22). The ALJ
then found that Furister had the residual functional capacity
(“RFC”) to perform sedentary work, except with
the following additional limitations:
[She] can frequently climb ramps or stairs and balance.
However, the claimant must avoid concentrated exposure to
vibration, respiratory irritants and hazards.
(Tr. 22-27). At Step Four, the ALJ found that Furister could
not return to any past relevant work. (Tr. 28). At Step Five,
the ALJ concluded that Furister retained the ability to
perform work which exists in significant numbers in the
national economy. (Tr. 28-29).
Court has thoroughly reviewed Furister's medical record.
In lieu of summarizing her medical history here, the Court
will make references and provide citations to the record as
necessary in its discussion of the parties' arguments.
Application Reports and Administrative Hearing
Furister's Function Report
completed a function report on March 5, 2013. (Tr. 233-40).
Furister writes in difficult to decipher cursive script, thus
the Court will do its best to determine her meaning. Furister
wrote that she was disabled by pain, COPD, heart disease, and
numbness in the legs. (Tr. 233). She took care of her
thirteen year old son and had pets, but received assistance
from her roommate. (Tr. 234). Her sleep was interrupted by
pain. (Id.). She had some difficult bathing, caring
for her hair, and shaving. (Id.). She did not
require reminders to perform personal care or take medicine.
(Tr. 235). She prepared “quick & easy” meals
daily. (Id.). She did not perform yard work or
housework. (Id.). She could drive a car, shopped in
stores monthly, and could handle money. (Tr. 236). Her
hobbies included sewing on a monthly basis. (Tr. 237). She
spent time with others occasionally. (Id.). She
wrote of problems performing all postural and exertional
activities, but did not report mental issues, including
remembering, concentrating, understanding, or getting along
with others. (Tr. 238). She could follow instructions and get
along with others in an “ok” fashion. (Tr. 239).
As to assistive devices, she wrote that she used
“oxygen” “all the time, ” but did not
note the use of any walking aid. (Id.). Finally, she
drafted a long list of medicines, but did not list any side
effects of these medications. (Tr. 239-40).
Furister's Testimony at the First ...