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Boshers v. Commissioner of Social Security

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

July 3, 2017

GREGORY LEE BOSHERS, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant,

          OPINION

          ROBERT J. JONKER CHIEF UNITED STATES DISTRICT 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) denying Plaintiff's claim for disability insurance benefits (DIB) and supplemental security income (SSI) 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 Commissioner has found that Plaintiff is not disabled within the meaning of the Act.

         STANDARD OF REVIEW

         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 evidence 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.

         PROCEDURAL POSTURE

         Plaintiff was forty-six years of age on the date of the ALJ's decision. (PageID.36, 83, 99.) He has a high school education, and was previously employed as a hand packager, band saw operator, and as an industrial truck driver. (PageID.61, 77.) Plaintiff applied for benefits on September 19, 2013, alleging disability beginning December 21, 2007, due to lupus, depression, chronic migraines, chronic fatigue, insomnia, restless legs, short term memory loss, a deaf right ear, pain in both of his legs, bilateral carpal tunnel syndrome, and a history of polysubstance abuse. (PageID.83, 99, 179-191.) These applications were denied on December 19, 2013, and Plaintiff subsequently requested a hearing before an ALJ. (PageID.118-126, 130.) On January 7, 2015, Plaintiff appeared with his counsel before ALJ James J. Kent for an administrative hearing at which time both Plaintiff and a vocational expert (VE) testified. (PageID.56-81.) On February 12, 2015, the ALJ issued an unfavorable written decision that concluded Plaintiff was not disabled. (PageID.36-55.) On August 10, 2016, the Appeals Council declined to review the ALJ's decision, making it the Commissioner's final decision in the matter. (PageID.28-34.) Plaintiff subsequently initiated this action under 42 U.S.C. § 405(g).

         Plaintiff's insured status expired on June 30, 2010. (PageID.83, 99.) 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).

         ALJ'S DECISION

         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 Kent determined Plaintiff's claim failed at step five. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his alleged disability onset date. (PageID.41.) At step two, the ALJ found that Plaintiff suffered from the severe impairments of fibromyalgia, discoid lupus, lumbar spine facet arthropathy, affective disorders, and substance abuse disorders. (PageID.41.) The ALJ further found that Plaintiff's hearing loss and headaches were non-severe impairments. (PageID.42.) At step three, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that met or equaled the requirements of the Listing of Impairments found in 20 C.F.R. Pt. 404, Subpt. P, App. 1. (PageID.42-43.) At step four, the ALJ determined Plaintiff retained the RFC based on all the impairments:

to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except he can lift no more than 50 pounds occasionally and lift/carry up to 25 pounds frequently. He can occasionally climb ladders/ropes/scaffolds, frequently climb ramps, stairs, and balance, stoop, kneel, crouch, or crawl. He has to avoid even moderate excessive vibration. He is able to perform simple, routine, and repetitive tasks, but he can tolerate few if any changes in the work setting and he cannot perform production rate paced work.

(PageID.43.) Continuing with the fourth step, the ALJ determined that Plaintiff was unable to perform any of his past relevant work. (PageID.50.) 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 work in the following representative jobs: material handler (300, 000 national positions), equipment cleaner (150, 000 national positions), and machine feeder (200, 000 national positions). (PageID.77-80.) 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.51.)

         Accordingly, the ALJ concluded that Plaintiff was not disabled from December 21, 2007, the alleged disability onset date, through February 12, 2015, the date of decision. (PageID.51.)

         DISCUSSION

          1.The ...


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