United States District Court, E.D. Michigan, Southern Division
Honorable Thomas L. Ludington, Judge
REPORT AND RECOMMENDATION ON CROSS-MOTIONS FOR
SUMMARY JUDGMENT [ECF. NO. 15, 16]
ELIZABETH A. STAFFORD, UNITED STATES MAGISTRATE JUDGE
Richard Eugene Patrick appeals a final decision of defendant
Commissioner of Social Security (“Commissioner”)
denying his applications for disability insurance benefits
(“DIB”) and Supplemental Security Income Benefits
(“SSI”) under the Social Security Act (the
“Act”). Both parties have filed summary judgment
motions, referred to this Court for a report and
recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
After review of the record, the Court finds that the ALJ
violated the treating physician rule and thus RECOMMENDS
• the Commissioner's motion [R. 16] be DENIED;
• Patrick's motion [R. 15] be GRANTED; and,
• the Commissioner's decision be REMANDED, pursuant
to sentence four of 42 U.S.C. § 405(g) for further
consideration consistent with this report and recommendation.
Patrick's Background and Claimed Disabilities
October 23, 1973, Patrick was 39 years old when he submitted
his applications for disability benefits in May 2013. [ECF
No. 10-5, Tr. 175]. He has GED, and past relevant work as a
laborer. [ECF No. 10-6, Tr. 216]. Patrick claimed disability
due to “bipolar psychotic” and back pain.
[Id., Tr. 215]. After a hearing on February 6, 2015,
which included the testimony of Patrick and a vocational
expert (“VE”), the ALJ found that he was not
disabled. [ECF No. 10-2, Tr. 17-38, 39-68]. The Appeals
Council denied review, making the ALJ's decision the
final decision of the Commissioner. [Id., Tr. 1-4].
Patrick timely filed for judicial review. [ECF No. 1].
ALJ's Application of the Disability Framework Analysis
SSI are available for those who have a
“disability.” See Colvin v. Barnhart,
475 F.3d 727, 730 (6th Cir. 2007). A “disability”
is 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 12 months.” 42 U.S.C.
§§ 423(d)(1)(A), 1382c(a)(3)(A).
Commissioner determines whether an applicant is disabled by
analyzing five sequential steps. First, if the applicant is
“doing substantial gainful activity, ” he or she
will be found not disabled. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4). Second, if the claimant has not
had a severe impairment or a combination of such
impairments for a continuous period of at least 12
months, no disability will be found. Id. Third, if
the claimant's severe impairments meet or equal the
criteria of an impairment set forth in the Commissioner's
Listing of Impairments, the claimant will be found disabled.
Id. If the fourth step is reached, the Commissioner
considers its assessment of the claimant's residual
functional capacity, and will find the claimant not disabled
if he or she can still do past relevant work. Id. At
the final step, the Commissioner reviews the claimant's
RFC, age, education and work experiences, and determines
whether the claimant could adjust to other work. Id.
The claimant bears the burden of proof throughout the first
four steps, but the burden shifts to the Commissioner if the
fifth step is reached. Preslar v. Sec'y of Health
& Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).
this framework, the ALJ concluded that Patrick was not
disabled. At step one, she found that, although Patrick had
engaged in work after his alleged onset date of July 1, 2011,
it did not rise to the level of substantial gainful activity.
[ECF No. 10-2, Tr. 22]. At step two, she found that Patrick
had the severe impairments of “polysubstance abuse;
bipolar disorder; and post-traumatic stress disorder
(PTSD).” [Id.]. At step three, the ALJ
concluded that none of his impairments, either alone or in
combination, met or medically equaled the severity of a
listed impairment. [Id., Tr. 23].
the ALJ found that Patrick had the RFC to perform a full
range of work at all exertional levels but with these
[N]o climbing ladders and the like or exposure to obvious
hazards. The claimant can also: understand, carry out and
remember simple instructions where the pace of productivity
is not dictated by an external source over which the claimant
has no control such as an assembly line or conveyor belt[, ]
make judgments on simple work, and respond appropriately to
usual work situations and changes in a routine work setting
that is very repetitive from day to day with few and expected
changes: and respond appropriately to occasional contact with
supervisory personnel and coworkers whether there is no
working in team or tandem with coworkers, and no contact with
the general public.
[Id., Tr. 25]. At step five, the ALJ found that
Patrick could not perform any past relevant work.
[Id., Tr. 31]. With the assistance of VE testimony
[Id., Tr. 61-66], she determined at step five that
Patrick could perform the requirements of representative
occupations such as industrial cleaner, stores laborer and
hand packager, and that those jobs existed in significant
numbers in the economy, rendering a finding that she was not
disabled. [Id., Tr. 32].
STANDARD OF REVIEW
to § 405(g), this Court's review is limited to
determining whether the Commissioner's decision is
supported by substantial evidence and was made in conformity
with proper legal standards. Gentry v. Comm'r of Soc.
Sec., 741 F.3d 708, 722 (6th Cir. 2014). 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
quotation marks and citation omitted). Only the evidence in
the record below may be considered when determining whether
the ALJ's decision is supported by substantial evidence.
Bass v. McMahon, 499 F.3d 506, 513 (6th Cir. 2007).
Commissioner must also adhere to its own procedures, but
failure to do so constitutes only harmless error unless the
claimant has been prejudiced or deprived of substantial
rights. Rabbers v. Comm'r of Soc. Sec., 582 F.3d
647, 654 (6th Cir. 2009). An ALJ's failure to use an
“adjudicatory tool” that does not change the
outcome of the decision is harmless. Id. at 655-56.
On the other hand, substantial errors like ignoring evidence
in the record or failing to follow ...