United States District Court, W.D. Michigan, Southern Division
RANDY M. DUKES, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant,
T. NEFF UNITED STATES DISTRICT JUDGE.
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). Plaintiff seeks review of the
Commissioner's decision denying his claim for disability
insurance benefits (DIB) under Title II of the Social
Security Act. Section 405(g) limits the Court to a review of
the administrative record, and provides that if the
Commissioner's decision is supported by substantial
evidence, it shall be conclusive.
scope of judicial review in a social security case is limited
to determining whether the Commissioner applied the proper
legal standards in making her decision and whether there
exists in the record substantial evidence supporting that
decision. See Brainard v. Sec'y of Health & Human
Servs., 889 F.2d 679, 681 (6th Cir. 1989). The Court may
not conduct a de novo review of the case, resolve
evidentiary conflicts, or decide questions of credibility.
See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.
1984). It is the Commissioner who is charged with finding the
facts relevant to an application for disability benefits, and
her findings are conclusive provided they are supported by
substantial evidence. See 42 U.S.C. § 405(g).
evidence is more than a scintilla, but less than a
preponderance. See Cohen v. Sec'y of Health &
Human Servs., 964 F.2d 524, 528 (6th Cir. 1992)
(citations omitted). It is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion. See Richardson v. Perales, 402 U.S. 389,
401 (1971); Bogle v. Sullivan, 998 F.2d 342, 347
(6th Cir. 1993). In determining the substantiality of the
evidence, the Court must consider the evidence on the record
as a whole and take into account whatever in the record
fairly detracts from its weight. See Richardson v.
Sec'y of Health & Human Servs., 735 F.2d 962,
963 (6th Cir. 1984). The substantial evidence standard
presupposes the existence of a zone within which the decision
maker can properly rule either way, without judicial
interference. See Mullen v. Bowen, 800 F.2d 535, 545
(6th Cir. 1986) (citation omitted). This standard affords to
the administrative decision maker considerable latitude, and
indicates that a decision supported by substantial evidence
will not be reversed simply because the evidence would have
supported a contrary decision. See Bogle, 998 F.2d
at 347; Mullen, 800 F.2d at 545.
the second time Plaintiff's application has reached this
level of review. Plaintiff's DIB application was
previously considered by Magistrate Judge Hugh Brenneman, Jr.
In a decision dated September 22, 2014, Judge Brenneman
summarized the procedural history of this case to that point
Plaintiff was born on June 3, 1966. He alleged a disability
onset date of February 15, 2009. Plaintiff had four or more
years of college, and had special job training at a police
academy and at truck driving school. He had previous
employment as a police officer, public school security
officer and truck driver. Plaintiff identified his disabling
conditions as post-traumatic stress disorder (PTSD),
depression, left knee acl repair, bone spurs, meniscus damage
and left hip strain. The administrative law judge (ALJ)
reviewed plaintiff's claim de novo and entered a
written decision denying benefits on October 1, 2011. This
decision, which was later approved by the Appeals Council,
has become the final decision of the Commissioner and is now
before the Court for review.
Dukes v. Comm'r of Soc. Sec., No. 1:13-cv-623
(W.D. Mich. Sept. 22, 2014) (ECF No. 19, PageID.962)
(internal citations and footnotes omitted). Upon review,
Judge Brenneman concluded that the ALJ's decision was not
supported by substantial evidence. Specifically, Judge
Brenneman observed that the ALJ appeared to have used
boilerplate language to discount the treating source opinions
by Dr. Hakima Aqel, M.D., and further found the ALJ had
failed to provide good reasons for assigning the opinions
less than controlling weight. Judge Breneman further noted
that it was unclear whether the ALJ had considered an opinion
from Dr. Darryl P. Plunkett, Ph.D, as one from a treating
source or as one from merely an examining source.
Accordingly, the judge reversed and remanded the decision of
the Commissioner in order to “(1) determine whether Dr.
Plunkett's opinion is that of a treater or an examiner,
and then evaluate the opinion accordingly, and (2)
re-evaluate Dr. Aqel's mental and physical RFC
assessments.” Id. at PageID.971.
December 5, 2014, pursuant to Judge Brenneman's decision,
the Appeals Council remanded the case to the ALJ.
(PageID.1132-1133.) On March 19, 2015, Plaintiff appeared
with his counsel before ALJ Donna Grit for an administrative
hearing at which time both Plaintiff and a vocational expert
testified. (PageID.991-1021.) Following the hearing, the ALJ
issued an unfavorable written decision, dated July 17, 2015,
concluding that Plaintiff was not disabled. (PageID.936-988.)
On May 9, 2016, the Appeals Council declined to review the
ALJ's decision, making it the Commissioner's final
decision in the matter. (PageID.918-925.)
insured status expired on March 31, 2015. (PageID.940.) To be
eligible for DIB under Title II of the Social Security Act,
Plaintiff must establish that he became disabled prior to the
expiration of his insured status. See 42 U.S.C.
§ 423; Moon v. Sullivan, 923 F.2d 1175, 1182
(6th Cir. 1990).
social security regulations articulate a five-step sequential
process for evaluating disability. See 20 C.F.R.
§ 404.1520(a-f). If the Commissioner can make a dispositive
finding at any point in the review, no further finding is
required. See 20 C.F.R. § 404.1520(a). The
regulations also provide that if a claimant suffers from a
nonexertional impairment as well as an exertional impairment,
both are considered in determining the claimant's
residual functional capacity (RFC). See 20 C.F.R.
has the burden of proving the existence and severity of
limitations caused by his impairments and that he is
precluded from performing past relevant work through step
four. Jones v. Comm'r of Soc. Sec., 336 F.3d
469, 474 (6th Cir. 2003). At step five, it is the
Commissioner's burden “to identify a significant
number of jobs in the economy that accommodate the
claimant's residual functional capacity (determined at
step four) and vocational profile.” Id.
Grit determined that Plaintiff's claim failed at the
fifth step of the evaluation. At step one, the ALJ found that
Plaintiff did not engage in substantial gainful activity
during the period from his alleged disability onset date of
February 15, 2009, through his date last insured of March 31,
2015. (PageID.942.) At step two, the ALJ determined Plaintiff
had the severe impairments of: (1) left knee pain status-post
surgical repair; (2) degenerative changes of the right
shoulder; (3) a right heel spur; (4) obesity; (5)
post-traumatic stress disorder (PTSD); (6) depression; (7)
and a history of substance abuse. (PageID.942.) At the third
step, the ALJ found that Plaintiff did not have an impairment
or combination of impairments that met or equaled the
requirements of the Listing of Impairments. (PageID.944-948.)
At the fourth step, the ALJ determined Plaintiff retained the
RFC based on all the impairments through his date last
to perform light work as defined in 20 CFR 404.1567(b) such
that he is able to lift and carry twenty pounds occasionally
and ten pounds frequently. He is able to push and/or pull up
to ten pounds occasionally. He is able to stand and/or walk
two hours in an eight-hour workday and sit for up to six
hours of an eight-hour workday with normal breaks. He
requires the option to alternate between sitting and standing
at will. He may occasionally climb ramps and stairs, but
never ladders, ropes, or scaffolds. He may occasionally
stoop, kneel, crouch, and crawl. He must avoid unprotected
heights and dangerous machinery as well as walking on uneven
surfaces. H e must not perform overhead work[.] He is limited
to simple, routine, repetitive tasks ...