United States District Court, E.D. Michigan, Southern Division
AND ORDER (1) GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT OR REMAND (DE
17), (2) GRANTING IN PART AND DENYING IN PART DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT (DE 20), AND (3) REMANDING CASE
TO THE SOCIAL SECURITY ADMINISTRATION
ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE.
Evan Marion, brings this action for judicial review of a
February 19, 2016 final decision of the Commissioner of
Social Security (“Commissioner”) denying his
application for supplemental security income (SSI) benefits.
The hearing and decision at issue here occurred during
January and March 2015. (R. at 12-45.)
before the Court are the parties' cross-motions for
summary judgment, regarding which Plaintiff has filed a
reply. (DEs 17, 20, 21.) The parties have consented to my
authority. (DE 25, DE 26.) A hearing was held on May 4, 2017,
at which Plaintiff's counsel (Wesley James Lamey)
appeared in person and Defendant's counsel (AUSA Jeanne
D. Semivan) appeared by telephone. The Court considered the
parties' arguments, both on the papers and at the
hearing, took a recess to deliberate, and then gave several
rulings and its reasoning from the bench, all of which
are incorporated herein by this reference but are
Listing 1.04 (“Disorders of the spine”)
did not err at Step 3 when determining that Plaintiff's
degenerative disc disease (DDD) does not meet Listing 1.04
(“Disorders of the spine”). (R. at 17.)
Consistent with my statements from the bench, although these
are not entirely repeated here, Plaintiff has not shown how
each of Listing 1.04's criteria was met. In particular, I
note that the May 13, 2013 evaluation by Dr. J. Beale, M.D.
does not indicate that the straight leg raising (SLR) was
“sitting and supine, ” as Listing 1.04A requires.
(See R. at 535-536.) Moreover, Plaintiff's
medical equivalency argument is undeveloped. Finally, even if
the ALJ had committed an error, the lack of explanation by
the Plaintiff as to how each of the criteria was met or
medically equaled renders any such error harmless, as
Plaintiff retains the burden at Step 3. Walters v.
Commissioner of Social Security, 127 F.3d 525, 529
(6th Cir. 1997).
Opinion evidence from David Coleman, M.A., L.L.P.C.
appropriately considered the August 21, 2013 and December 8,
2014 mental RFC assessments of David Coleman, M.A., L.L.P.C.
(R. at 18, R. at 579-582, 658-661.) Consistent with my
statements from the bench, although these are not entirely
repeated here, a therapist is an “other source, ”
whose opinion “may” be used “to
show the severity of your impairment(s) and how it
affects your ability to work.” 20 C.F.R. §§
404.1513(d)(1), 416.913(d)(1) (emphasis added) (effective
pre-March 27, 2017); see also 20 C.F.R. §§
404.1502, 416.902 (effective March 27, 2017). As such,
Coleman is not an “acceptable medical source”
whose opinion may be used to establish an
impairment. 20 C.F.R. §§ 404.1513(a), 416.913(a).
The absence of social limitations in the RFC
initial matter, Plaintiff's third statement of error
mischaracterizes this argument's content. Although
Plaintiff contends that the ALJ “erroneously found work
at Step Five[, ]” it is clear that Plaintiff is more
accurately challenging the ALJ's Step 4 RFC
determination. (DE 17 at 24-26.) The Commissioner recognized
as much in response. (DE 20 at 23.) For this reason, the
Court construes this argument as an attack on the ALJ's
Step 4 RFC determination and finds that the Commissioner is
not prejudiced by the Court doing so.
construed, I conclude that the ALJ erred in his Step 4 RFC
determination in that he failed to address Plaintiff's
significant social limitations. To be sure, at Step
2, the ALJ found that Plaintiff had the severe
impairments of depression and anxiety. (R. at 17.) Then,
at Step 3, when finding that Plaintiff's mental
impairments did not meet or medically equal the criteria of
listing 12.04 (“Depressive, bipolar and related
disorders”), the ALJ concluded that Plaintiff had
“only mild restriction” with social functioning.
(R. at 17-18.) In so doing, the ALJ (a) assigned “great
weight” to the November 13, 2013 opinion of state
agency consultant Sheila C. Williams-White, Ph.D., to the
extent the state psychological consultant opined that
Plaintiff had mild difficulties in maintaining social
functioning (R. at 160-161, 164-166); (b) declined to afford
weight to the August 21, 2013 and December 8, 2014 mental RFC
assessments of David Coleman, M.A., L.L.P.C., who had opined
that Plaintiff was “unable to meet competitive
standards” with respect to many “mental abilities
and aptitudes needed to do unskilled work, ” (R. at
579-582, 658-661); and (c) favorably cited
the October 23, 2013 consultative examination (CE) of
psychiatrist H. Gummadi, M.D. as to various aspects of his
“sensorium and mental capacity” examination and
as to Dr. Gummadi's conclusion that Plaintiff seemed
“to be able to understand, retain, and follow ...