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Patrick v. Colvin

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

February 8, 2017

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          Honorable Thomas L. Ludington, Judge



         Plaintiff 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 that:

• 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.

         I. BACKGROUND

         A. Patrick's Background and Claimed Disabilities

         Born 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].

         B. The ALJ's Application of the Disability Framework Analysis

         DIB and 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).

         The 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).[1] Second, if the claimant has not had a severe impairment or a combination of such impairments[2] 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).

         Applying 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].

         Next, the ALJ found that Patrick had the RFC to perform a full range of work at all exertional levels but with these non-exertional limitations:

[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].


         Pursuant 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).

         The 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 ...

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