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Harper v. Commissioner of Social Security

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

May 23, 2017

Kevin Jon Harper, Plaintiff,
v.
Commissioner of Social Security, Defendant.

          STEPHANIE DAWKINS DAVIS UNITED STATES MAGISTRATE JUDGE.

          OPINION AND ORDER SUSTAINING DEFENDANT'S OBJECTIONS [15]; REJECTING REPORT AND RECOMMENDATION [14]; GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [13]; AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [10]

          HON. GERSHWIN A. DRAIN United States District Court Judge.

         I. Introduction

         This matter is before the Court on the Parties' Cross-Motions for Summary Judgement as to Plaintiff Kevin Jon Harper's claim for judicial review of Defendant Commissioner of Social Security's denial of his application for disability insurance benefits. The matter was referred to Magistrate Judge Stephanie Dawkins Davis, who issued a Report and Recommendation on February 23, 2017, recommending that Plaintiff's Motion for Summary Judgment be granted, that the Commissioner's Motion for Summary Judgment be denied, and that the findings of the Commission be reversed and remanded for further proceedings. The Commissioner filed objections to the Report and Recommendation on March 9, 2017. Plaintiff did not file a response. For the reasons discussed below, the Court will sustain the objections to the Magistrate Judge's Report and Recommendation and grant Defendant's Motion for Summary Judgment.

         II. Analysis

         The standard of review to be employed by the court when examining a report and recommendation is set forth in 28 U.S.C. § 636. This Court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). This court “may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate.” Id.

         A district court may affirm, modify, or reverse the Commissioner's decision, with or without remand. See 42 U.S.C. § 405(g). Findings of fact by the Commissioner are conclusive if supported by substantial evidence. Id. The court must affirm the decision if it is “based on [an appropriate] legal standard and is supported by substantial evidence in the record as a whole.” Studaway v. Sec'y of Health and Human Servs., 815 F.2d 1074, 1076 (6th Cir. 1987). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).

         Plaintiff applied for disability insurance benefits on February 6, 2012, alleging a disability onset date of October 4, 2011. Dkt. No. 10, p. 7 (Pg. ID 985). The Administrative Law Judge (“ALJ”) determined that Plaintiff has the following severe impairments: C6-7 herniation with cord compression and radiculopathy, status post discectomy and C5-7 fusion; multilevel lumbar degenerative disc disease/degenerative joint disease without stenosis or neural foraminal narrowing; and a major depressive disorder. Dkt. No. 7-2, p. 24 (Pg. ID 55). The ALJ found that the claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.

         Prior to the hearing, Plaintiff's most recent consultative examination was held on June 7, 2017. Dkt. No. 10, p. 14 (Pg. ID 992). Since that time, Plaintiff says that over 288 pages of new medical reports were added to the record, which indicate additional limitations and provide further evidence of his disabilities. Dkt. No. 7-10 (Pg. ID 899-90, 904-05). Accordingly, Plaintiff claims that a significant portion of medical evidence was not available when his expert medical exam occurred. For this reason, inter alia, Plaintiff requests that the case be remanded. Defendant objects.

         A. Objection # 1

         In order to become entitled to any benefit based upon disability, the Plaintiff must be disabled as defined in Title II of the Social Security Act. 20 C.F.R. § 404.1501. Federal regulations specify the Listing of Impairments which describe “the major body systems impairments [that are considered] severe enough to prevent an individual from doing any gainful activity, regardless of age, education, or work experience.” 20 C.F.R. § 404.1525. If an individual's impairments do not meet any of the criteria in the Listing of Impairments, “it can medically equal the criteria of a listing.” Id. An impairment is medically equivalent to a listed impairment “if it is at least equal in severity and duration to the criteria of any listed impairment.” 20 C.F.R. § 404.1526.

         In this case, it seems undisputed that the Plaintiff's impairments did not meet any of the criteria in the Listing of Impairments. Therefore, at issue in this case is whether the Plaintiff's impairments medially equally the severity and duration of a listed impairment.

         “The administrative law judge or Appeals Council is responsible for deciding the ultimate legal question whether a listing is met or equaled. As trier of the facts, an administrative law judge or the Appeals Council is not bound by a finding by a State agency medical or psychological consultant or other program physician or psychologist as to whether an individual's impairment(s) is equivalent in severity to any impairment in the Listing of Impairments. However, longstanding policy requires that the judgment of a physician (or psychologist) designated by the Commissioner on the issue of equivalence on the evidence before the administrative law judge or the Appeals Council must be received into the record as expert opinion evidence and given appropriate weight.” Titles II & XVI: Consideration of Admin. Findings of Fact by State Agency Med. & Psychological Consultants & Other Program Physicians & Psychologists at the Admin. Law Judge & Appeals Council, SSR 96-6P (S.S.A. July 2, 1996).

         “When an administrative law judge or the Appeals Council finds that an individual[']s impairment(s) is not equivalent in severity to any listing, the requirement to receive expert opinion evidence into the record may be satisfied by [various approved documents] signed by a State agency medical or psychological consultant. However, an administrative law judge and the ...


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