United States District Court, E.D. Michigan, Southern Division
AND ORDER (1) OVERRULING PLAINTIFF'S OBJECTION (DKT. 24),
(2) ACCEPTING THE RECOMMENDATION OF THE MAGISTRATE JUDGE
(DKT. 21), (3) DENYING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT (DKT. 19), AND (4) GRANTING DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT (DKT. 20)
MARK A. GOLDSMITH, Judge
social security case, Plaintiff Katherine Dew appeals from
the final determination of the Commissioner of Social
Security that she is not disabled and, therefore, not
entitled to disability benefits. The matter was referred to
Magistrate Judge Anthony P. Patti for a Report and
Recommendation (“R&R”). The parties filed
cross-motions for summary judgment (Dkts. 19, 20), and
Magistrate Judge Patti issued an R&R recommending that
the Court grant the Commissioner's motion for summary
judgment and deny Dew's motion for summary judgment (Dkt.
21). Dew filed an objection to the R&R (Dkt. 24); the
Commissioner subsequently filed a response (Dkt. 25).
reasons that follow, the Court overrules Dew's objection
and accepts the recommendation contained in the magistrate
judge's R&R. The Commissioner's motion is
granted, and Dew's motion is denied. The final decision
of the Commissioner is affirmed.
Court reviews de novo those portions of the R&R to which
a specific objection has been made. See 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72(b). Under 42 U.S.C. §
405(g), this Court's “review is limited to
determining whether the Commissioner's decision ‘is
supported by substantial evidence and was made pursuant to
proper legal standards.'” Ealy v. Comm'r of
Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting
Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241
(6th Cir. 2007)). “Substantial evidence is ‘such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.'” Lindsley v.
Comm'r of Soc. Sec., 560 F.3d 601, 604 (6th Cir.
2009) (quoting Richardson v. Perales, 402 U.S. 389,
401 (1971)). In determining whether substantial evidence
exists, the Court may “look to any evidence in the
record, regardless of whether it has been cited by the
[Administrative Law Judge (“ALJ”)].”
Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535
(6th Cir. 2001). “[T]he claimant bears the burden of
producing sufficient evidence to show the existence of a
disability.” Watters v. Comm'r of Soc. Sec.
Admin., 530 F. App'x 419, 425 (6th Cir. 2013).
offers one objection to the magistrate judge's R&R,
namely, that the magistrate judge erred in finding that the
ALJ's failure to evaluate Listing 4.02 was harmless
error. See Pl. Obj. at 3. Within her objection, Dew
also contends that the ALJ should have requested further
information from Dew's treating source prior to making a
determination under Listing 4.02. Id. The Court
concludes that Dew's objection lacks merit.
“objects to the finding of the Magistrate Judge that
Plaintiff failed to meet the listing 4.02, and that the
failure of the ALJ to discuss same was harmless error.”
Pl. Obj. at 4. In response, the Commissioner argues that,
while the ALJ should have at least addressed Listing 4.02,
the failure to address the listing was harmless because there
is not sufficient evidence in the record demonstrating that
Dew was able to meet or equal the requirements of the
listing. Def. Resp. at 1-2.
claimant is entitled to benefits under the Social Security
Act if she can demonstrate her “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); 20 C.F.R.
§§ 404.1505, 416.905. A five-step process, set
forth in accompanying regulations, outlines whether a
claimant is considered disabled under the statute.
See 20 C.F.R. §§ 404.1520, 416.920. The
first step considers whether the claimant is currently
involved in substantial gainful activity. 20 C.F.R. §
404.1520(4)(i). If not, the ALJ moves on to consider the
medical severity of the claimant's impairment. 20 C.F.R.
third step, the step at issue in this case, involves a
determination whether the claimant's impairment
“meets or equals” one of the impairments listed
in the regulations. 20 C.F.R. § 404.1520(4)(iii). If the
impairment does meet or equal one of the listed impairments,
then the ALJ must find that the claimant is disabled.
Id. If the impairment does not meet or equal any of
the listings, the ALJ will move on to assess the
claimant's residual functional capacity
(“RFC”) and determine whether her RFC, age,
education, and work experience allow her to make adjustments
to other work. Smith-Johnson v. Comm'r of Soc.
Sec., 579 F. App'x 426, 431 (6th Cir. 2014). If so,
the ALJ will find that the claimant is not disabled.
instant action, the ALJ found that Dew's impairment did
not meet or equal any of the listings and that her RFC, age,
education, and work experience allowed her to make
adjustments to other work. Administrative Record
(“A.R.”) at 15 (Dkt. 15). Dew argues that she met
Listing 4.02 and that the ALJ's failure to address this
listing is reversible error.
the listings nor the Sixth Circuit require the ALJ to
‘address every listing' or ‘to discuss
listings that the applicant clearly does not
meet.'” Smith-Johnson, 579 F. App'x at
432 (quoting Sheeks v. Comm'r of Soc. Sec., 544
F. App'x 639, 641 (6th Cir. 2013)). “The ALJ should
discuss the relevant listing, however, where the record
raises ‘a substantial question as to whether [the
claimant] could qualify as disabled' under a
listing.” Id. (quoting Abbott v.
Sullivan, 905 F.2d 918, 925 (6th Cir. 1990)). However,
“[a] claimant must do more than point to evidence on
which the ALJ could have based his finding to raise a
‘substantial question' as to whether he has
satisfied a listing. Rather, the claimant must point to
specific evidence that demonstrates he reasonably could meet
or equal every requirement of the listing.”
Id. “Absent such evidence, the ALJ does not
commit reversible error by failing to evaluate a listing at
Step Three.” Id. at 433.
result, Dew is only entitled to remand if she can point to
specific evidence in the record demonstrating that she
reasonably could meet or equal every requirement of Listing
4.02. In order to qualify as disabled ...