United States District Court, W.D. Michigan, Southern Division
L. MALONEY United States District Judge.
a social security action brought under 42 U.S.C. §
405(g) seeking judicial review of a final decision of the
Commissioner of the Social Security Administration
(Commissioner) denying Plaintiff's claim for disability
insurance benefits (DIB) and supplemental security income
(SSI) under Titles II and XVI 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. The Commissioner has found
that Plaintiff is not disabled within the meaning of the Act.
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 forty-eight years of age on the date of the ALJ's
decision. (PageID.49, 127, 137.) He completed high school,
attended two years of college, and was previously employed in
a number of positions including work as a janitor, truck
driver (delivery), lawn service worker, technical support
specialist, electrical panel assembler and wirer, and
extrusion press operator I. (PageID.113-116, 255.) Plaintiff
applied for benefits on April 23, 2013, alleging that he had
been disabled since July 17, 2006, due to spine injuries,
spine arthritis spurs, spine stenosis, high BMI, degenerative
disc disease, loss of feeling in the legs, moderate to severe
hearing loss, an inability to get out of bed and dressed
without assistance, and a need for a cane when walking.
(PageID.127-128, 137-138, 220-231.) These applications were
denied on September 24, 2013, after which time Plaintiff
requested a hearing before an ALJ. (PageID.150-159.) On April
24, 2015, Plaintiff appeared with his counsel before ALJ
Laurie Wardell for an administrative hearing with testimony
offered by Plaintiff and a vocational expert (VE).
(PageID.70-125.) On June 2, 2015, the ALJ issued her written
decision, concluding that Plaintiff was not disabled.
(PageID.49-68.) On April 6, 2016, the Appeals Council
declined to review the ALJ's decision, making it the
Commissioner's final decision in the matter.
(PageID.33-38.) Plaintiff subsequently initiated this action
under 42 U.S.C. § 405(g).
social security regulations articulate a five-step sequential
process for evaluating disability. See 20 C.F.R.
§§ 404.1520(a-f), 416.920(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), 416.920(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.
§§ 404.1545, 416.945.
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.
determined Plaintiff's claim failed at step five. At step
one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since his alleged disability
onset date. (PageID.54.) At step two, the ALJ found that
Plaintiff suffered from the following severe impairments: (1)
degenerative disc disease of the lumbar spine; (2) obesity;
and (3) hearing loss. (PageID.54-55.) 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.55-56.) At step four, the
ALJ determined Plaintiff retained the RFC based on all the
impairments to perform:
.sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a) with some additional limitations. More
specifically, he is able to lift and/or carry up to 10 pounds
occasionally and less than 10 pounds frequently, stand and/or
walk for a total of about two hours in an eight-hour workday,
and sit for a total of about six hours in an eight-hour
workday. He is limited to no more than occasional balancing,
stooping, kneeling, crouching, crawling, and climbing of
ramps and stairs; he cannot balance on wet or uneven surfaces
or climb ladders, ropes, or scaffolds; and he needs to avoid
moderate exposure to vibration and hazards (e.g., unprotected
heights and moving mechanical parts). Finally, he is able to
perform simple and routine tasks that do not require a
Continuing with the fourth step, the ALJ determined that
Plaintiff was unable to perform his past relevant work.
(PageID.61.) At the fifth step, the ALJ questioned the VE to
determine whether a significant number of jobs exist in the
economy that Plaintiff could perform given his limitations.
See Richardson, 735 F.2d at 964. The VE testified
that Plaintiff could perform work as a surveillance system
monitor (1, 600 regional and 42, 000 national positions) and
inspector (1, 800 regional and 58, 000 national positions).
(PageID.116-119.) 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
17, 2006, the alleged onset date, through June 2, 2015, the
date of decision. (PageID.62-63.)
asserts that the ALJ's decision is unsupported by
substantial evidence for two reasons: the ALJ's analysis
of Dr. David Collins' opinion fails to comply with the
treating physician rule, and the ALJ improperly discounted
Plaintiff's credibility. (PageID.593.) The Court notes
that to the extent Plaintiff has raised additional arguments
independent of those stated here, and addressed below, they
have been waived. Specifically, Plaintiff argues the ALJ
should have determined that he required the use of a cane to
ambulate, as found by Dr. Jacobson, a consultative examiner.
(PageID.603.) The reasons why this argument has been waived
are two-fold. First, it was not included in his Statement of
Errors, as specifically required by the Court in its August
12, 2016, notice to the parties. (PageID.585.) That notice
cautioned that failure to include an issue in the Statement
of Errors constitutes a waiver of that issue. Second, it is
waived because the contention is undeveloped and
unaccompanied by any meaningful argument.
“‘Issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived. It is not sufficient for a party to mention a
possible argument in the most skeletal way, leaving the court
to . . . put flesh on its bones.'” United
States v. Stewart, 628 F.3d 246, 256 (6th Cir. 2010)
(quoting McPherson v. Kelsey, 125 F.3d 989, 995-96