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Argall v. Berryhill

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

May 18, 2017

DARIN ARGALL, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION

          TIMOTHY P. GREELEY UNITED STATES MAGISTRATE JUDGE

         This is a social security action brought under 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of the Social Security Administration (Commissioner).[1] Plaintiff Darin Argall filed an initial brief on October 21, 2016 (ECF No. 16) and a supplemental brief on November 7, 2016 (ECF No. 18). Defendant filed a response on November 22, 2016. (ECF No. 19.) Plaintiff did not filed a reply. The matter is now ready for a decision.[2]

         Plaintiff alleges that he became disabled on August 6, 2012. On July 10, 2013, Plaintiff Darin Argall filed an application for disability insurance benefits under Title II of the Social Security Act. (ECF No. 7-2, PageID.52.) In his initial application for disability benefits, Plaintiff alleged that he was disabled because of “fractured ribs, separated clavicle, bulging discs, separated left shoulder, damaged lungs, blood line through heart, damaged right hand and wrist, 2 hernia surgeries, chronic pain, difficulty turning neck or back, and learning disabilities.” (ECF No. 7-4, PageID.118.) On October 15, 2013, Plaintiff's application was denied. (PageID.118.) On December 17, 2013, Plaintiff filed a Title XVI application for supplemental security income and a written request for an administrative hearing before an Administrative Law Judge (ALJ). (PageID.122.)

         The ALJ held a hearing on September 10, 2015, in which Plaintiff was represented by a non-lawyer. (ECF No. 7-2, PageID.70.) At the hearing, Plaintiff testified that he was thirty-six years old and had a GED. (PageID.76.) He stated that he used to work as a mason and was injured at work on August 6, 2012. Plaintiff worked for three days after his injury, but could not continue to work because the pain was too severe. (PageID.76.) As a result of the injury, Plaintiff received an $80, 000 workers compensation settlement. (PageID.77.) Since the injury, Plaintiff spends most of the day “watching TV or not doing a whole lot.” (PageID.79.) Plaintiff tried physical therapy for a period of time, but it was not helpful. (PageID.85-86.) He testified that he struggles with performing daily tasks and can only walk one block, stand for one hour, or sit for one hour before needing breaks because of the pain. (PageID.91-92.)

         In addition to Plaintiff's testimony, a vocational expert-Dr. Jacquelyn E. Wenkman-testified at the hearing. (PageID.95-98.) The ALJ asked Dr. Wenkman whether a person of the Plaintiff's age, education, and work experience could work as a mason with the following non-exertional limitations: no climbing ladders, ropes, or scaffolds; moderate exposure to moving machinery and unprotected heights; limited reaching with upper right extremity; and allowing ten percent of work day off task. (PageID.95-96.) Dr. Wenkman responded “no.” (PageID.96.) However, Dr. Wenkman stated that a person with the same limitations could perform light level jobs including: lobby attendant (87, 000 positions); cafeteria attendant (225, 000 positions); and machine tender (168, 000 positions). (PageID.96.) In addition, Dr. Wenkman testified that a person with the same limitations could perform the following sedentary level positions: lobby or building attendant (17, 000 positions); machine tending (22, 000 positions); clerk (79, 000 positions); and office helper (99, 000 positions). (PageID.96.) Dr. Wenkman also stated that if the person was off task fifteen percent of the workday, the potential jobs would be eliminated. (PageID.96-97.)

         On November 9, 2015, the ALJ issued a written decision denying Plaintiff's claim for benefits. (ECF No. 7-2, PageID.49.) The ALJ found that Plaintiff could perform jobs that existed in significant numbers in the national economy given Plaintiff's residual functional capacity (RFC). (PageID.63.) Therefore, the ALJ concluded that Plaintiff was not under a “disability, ” as defined by the Social Security Act, 20 C.F.R. § 404.1520(g), from August 6, 2012 to the date of the decision. (PageID.63.)

         Plaintiff subsequently appealed to the Appeals Council, which denied his request for review on December 29, 2015. (ECF No. 7-2, PageID.25.) Plaintiff now seeks judicial review of the agency's final decision denying her request for disability benefits.

         “Our review of the ALJ's decision is limited to whether the ALJ applied the correct legal standards and whether the findings of the ALJ are supported by substantial evidence.” Winslow v. Comm'r of Soc. Sec., 566 Fed.App'x 418, 420 (6th Cir. 2014) (quoting Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009)); see also 42 U.S.C. § 405(g). Substantial evidence is defined as more than a mere scintilla of evidence but “such relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Jones v. Sec'y, Health & Human Servs., 945 F.2d 1365, 1369 (6th Cir. 1991). This Court is not permitted to try the case de novo, nor resolve conflicts in the evidence and cannot decide questions of credibility. Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); see Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003) (noting the ALJ's decision cannot be overturned if sufficient evidence supports the decision regardless of whether evidence also supports a contradictory conclusion). This Court is required to examine the administrative record as a whole and affirm the Commissioner's decision if it is supported by substantial evidence, even if this Court would have decided the matter differently. See Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983); see also Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (holding that the court must affirm a Commissioner even if substantial evidence would support the opposite conclusion).

         The ALJ must employ a five-step sequential analysis to determine if Plaintiff is under a disability as defined by the Social Security Act. Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004). At step one, the ALJ determines whether the claimant can still perform substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant's impairments are considered “severe.” 20 C.F.R. § 404.1520(a)(4)(ii). At step three, the ALJ determines whether the claimant's impairments meet or equal a listing in 20 C.F.R. part 404, Subpart P, Appendix 1. 20 C.F.R. § 404.1520(a)(4)(iii). At step four, the ALJ determines whether the claimant has the residual functional capacity to still perform past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). At step five, the ALJ determines whether a significant number of other jobs exist in the national economy that the claimant can perform. 20 C.F.R. § 404.1520(a)(4)(v). If the ALJ determines Plaintiff is not disabled under any step, the analysis ceases and Plaintiff is declared as such. 20 C.F.R § 404.1520(a).

         In this case, the ALJ correctly applied the five-step analysis. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since August 6, 2012, the alleged onset date. (ECF No. 7-2, PageID.54.)

         At step two, the ALJ determined that Plaintiff had the following severe impairments: degenerative disc disease; degenerative joint disease, and status post left sternoclavicular joint sprain. (PageID.54.) The ALJ found that Plaintiff's chronic wrist pain was not a severe impairment because Plaintiff injured his wrist in 2011 and had returned to work as a mason with normal strength prior to the August 6, 2012, injury. (PageID.55.) The ALJ also found that Plaintiff's muscle aches and pains were not a severe impairment. (PageID.55.) Although Plaintiff was diagnosed with fibromyalgia, the ALJ found that Plaintiff was diagnosed in 2015 and did not meet the duration requirement in 20 C.F.R. § 404.1509. (PageID.55.) Moreover, the ALJ found that Plaintiff's medical examinations “show good musculoskeletal and neurologic function.” (PageID.55.)

         At step three, the ALJ determined that Plaintiff's impairments or a combination of impairments did not meet or medically equal the severity of one of the listed impairments in 20 C.F.R. part 404, Subpart P, Appendix 1. (PageID.55.) The ALJ made this determination after comparing Plaintiff's back and neck injuries to the criteria listed under 1.04, and Plaintiff's sternoclavicular injuries to the criteria listed under 1.02. (PageID.55.)

         At step four, the ALJ determined Plaintiff has the residual functional capacity (RFC) to perform light work, as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), with the additional limitations of: “no climbing of ladders, ropes or scaffolds, only frequent overhead reaching with the right upper extremity, must avoid moderate exposure to the use of moving machinery and unprotected heights, and allow off task 10% of the workday in addition to regular breaks.” (PageID.55.) This determination was based on a thorough review of Plaintiff's medical records. Relying on Plaintiff's x-rays and MRIs, as well as, medical reports from Plaintiff's shoulder specialist and rehabilitation specialist, the ALJ found that Plaintiff suffered from degenerative processes of the neck and back, and a sternoclavicular injury. (PageID.56-59.) The ALJ also found that Plaintiff was more active than he alleged in his function reports and his testimony at the hearing. (PageID.59-60.) The ALJ noted that some of the medical records indicated that Plaintiff is capable of performing some forms of work but that he did not want to work a “desk job.” (PageID.60.) Finally, the ALJ explained that he afforded little weight to some of the medical records because the records were vague and/or largely inconsistent with Plaintiff's other medical records. (PageID.60-62.)

         At step five, the ALJ determined that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. (PageID.63.) The ALJ relied on the vocational expert's testimony that Plaintiff could perform light work jobs including: lobby attendant (87, 000 positions); cafeteria attendant (225, 000 positions); and machine tender (168, 000 positions). (PageID.63.) Therefore, the ALJ concluded that ...


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