United States District Court, E.D. Michigan, Southern Division
STEPHANIE DAWKINS DAVIS UNITED STATES MAGISTRATE JUDGE.
OPINION AND ORDER SUSTAINING DEFENDANT'S
OBJECTIONS ; REJECTING REPORT AND RECOMMENDATION ;
GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ;
AND DENYING PLAINTIFF'S MOTION FOR SUMMARY
GERSHWIN A. DRAIN United States District Court Judge.
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.
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.
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).
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.
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
Objection # 1
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.
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.
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).
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 ...