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Harrington v. Commissioner of Social Security

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

June 22, 2017




         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). Plaintiff seeks review of the Commissioner's decision denying his claim for disability insurance benefits (DIB) and supplemental security income under Titles II and XVI 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.


         The 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).

         Substantial 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.


         Plaintiff was forty-seven years of age on the date of the ALJ's decision. (PageID.54, 82.) He completed high school and was previously employed as a construction worker, detailer, equipment cleaner, and drywall applicator. (PageID.83, 111-112.) Plaintiff applied for benefits on January 15, 2013, alleging disability beginning January 7, 2013, due to bilateral foot, ankle, and leg injuries that caused severe damage as well as back and hip pain, and required reconstructive surgeries. Plaintiff further claimed disability due to severe sleep apnea, very poor vision, depression, an inability to comprehend detailed written instructions and meanings, and computer illiteracy. (PageID.121-122, 136-137, 206-219.) Plaintiff's applications were denied on July 16, 2013, and Plaintiff subsequently requested a hearing before an ALJ. (PageID.152-162.) On July 25, 2014, Plaintiff appeared with his counsel before ALJ Donna Grit for an administrative hearing at which time Plaintiff and a vocational expert (VE) both testified. (PageID.77-117.) On January 26, 2015, the ALJ issued an unfavorable written decision that concluded Plaintiff was not disabled. (PageID.54-75.) On May 15, 2016, the Appeals Council declined to review the ALJ's decision, making it the Commissioner's final decision in the matter. (PageID.41-46.) Plaintiff subsequently initiated this action under 42 U.S.C. § 405(g).


         The social security regulations articulate a five-step sequential process for evaluating disability. See 20 C.F.R. §§ 404.1520(a-f), 416.920(a-f).[1] 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), 416.920(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. §§ 404.1545, 416.945.

         Plaintiff 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.

         ALJ 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 since January 7, 2013, the alleged disability onset date. (PageID.59.) At step two, the ALJ determined Plaintiff had the severe impairments of: (1) obesity (with weight loss); (2) obstructive sleep apnea; (3) status-post surgery for a left stage II posterior tendon dysfunction and gastroc equinus; (4) an enlarged prostate; (5) mild degenerative changes of the lumbar spine; and (6) depression and anxiety. (PageID.59.) 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.60-62.) At the fourth step, the ALJ determined Plaintiff retained the RFC based on all the impairments:

to perform a range of light work as defined in 20 CFR 404.1567(b) and 416.967(b) of the Regulations. The claimant is able to lift and carry a maximum of 20 pounds occasionally and a maximum of 10 pounds frequently. He is able to stand or walk for two hours and to sit for six hours in an eight-hour workday. He cannot use ladders, ropes, or scaffolds and can occasionally climb stairs and ramps. He can perform occasional balancing, stooping, kneeling, crouching a n d crawling. He can tolerate no exposure to vibration and occasional exposure to extremes of cold and humidity. He can understand, remember, and perform simple tasks and make simple decisions; he has the ability to adapt to occasional changes in workplace routines, and can have no interaction with the public. The claimant must use a cane for ambulation.

(PageID.62.) Continuing with the fourth step, the ALJ found that Plaintiff was unable to perform any of his past relevant work. (PageID.68.) At the fifth step, the ALJ questioned the VE to determine whether a significant number of jobs exist in the economy that Plaintiff could perform given his limitations. See Richardson, 735 F.2d at 964. The VE testified that Plaintiff could perform other work as a machine tender (7, 800 regional positions), assembler (14, 000 regional positions), and as a packager (6, 300 regional positions). (PageID.112-114.) Based on this record, the ALJ found that Plaintiff was capable of making a successful adjustment to work that exists in significant numbers in the national economy. (PageID.70.)

         Accordingly, the ALJ concluded that Plaintiff was not disabled from January 7, 2013, the alleged disability onset date, through January 26, 2016, the date of decision. (PageID.70.)


         1. The ALJ's Discussion of the Opinion Evidence.

         On May 15, 2014, Ms. Heather Visser, a limited licensed marriage and family therapist, completed a mental RFC questionnaire worksheet concerning Plaintiff's limitations. (PageID.532-535.) Ms. Visser noted she had been seeing Plaintiff twice a month since August 2013, and she had diagnosed Plaintiff with an adjustment disorder with a depressed mood, and with a social anxiety disorder. (PageID.532.) While she noted that Plaintiff's response to therapy had been positive, she noted that Plaintiff “will likely always struggle with chronic physical pain and impairments which likely will have an effect on his mental health.” (PageID.532.) The therapist then offered her opinion regarding Plaintiff's limitations in twenty-five listed abilities. For fifteen of the listed abilities, the therapist found Plaintiff was unlimited or limited, but satisfactory. Three other abilities were marked seriously limited, but not precluded. But the therapist found that Plaintiff had no useful ability to function in the ability to perform at a consistent pace without an unreasonable number and length of rest periods, and was unable to meet competitive standards in the ability to complete a normal workday and workweek without being interrupted by his symptoms, the ability to deal with normal work stress, the ability to deal with the stress of semiskilled and skilled work, and the abilities of interacting appropriately with the general public, traveling to an unfamiliar place, and using public transportation. (PageID.534-535.) F i n a l l y, w e r e h e t o w o r k, t h e therapist indicated she would expect that Plaintiff's impairments and treatment would cause him to be absent from work more than four days a month. After summarizing the opinion, the ALJ assigned it little weight because:

Such extreme limitations are not even consistent with the initial August 2013 evaluation that indicated mental status exam findings of being oriented, having an appropriate appearance, a flat expression, normal speech, a depressed mood but composed affect, good judgment, unremarkable thought content, normal memory, normal perception, normal impulse control, and average intelligence (Exhibit 22F). Thereafter, the claimant's mental impairments and functioning improved with outpatient counseling treatment. For these reasons, Ms. Visser's opinion is not consistent with the type, frequency, and outcome of the mental health treatment. ...

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