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Toll v. Commissioner of Social Security

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

March 16, 2017

TODD ODEAN TOLL, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant,

          OPINION

          PAUL L. MALONEY United States District Judge.

         This is 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.

         STANDARD OF REVIEW

         The 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).

         Substantial 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.

         PROCEDURAL POSTURE

         Plaintiff 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).

         ALJ'S DECISION

         The 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).[1] 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.

         Plaintiff 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.

         The ALJ 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 production-rate pace.

         (PageID.56.) 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 economy. (PageID.62.)

         Accordingly, 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.)

         DISCUSSION

         Plaintiff 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 ...


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