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Marion v. Commissioner of Social Security

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

May 8, 2017

EVAN MARION, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

         OPINION 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.

         I. OPINION

         A. Introduction

         Plaintiff, 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.)[1]

         Currently 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 summarized below.

         B. Rulings

         1. Listing 1.04 (“Disorders of the spine”)

         The ALJ 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).

         2. Opinion evidence from David Coleman, M.A., L.L.P.C.

         The ALJ 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).

         3. The absence of social limitations in the RFC

         As an 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.

         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 ...


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