United States District Court, W.D. Michigan, Northern Division
TIMOTHY P. GREELEY UNITED STATES MAGISTRATE JUDGE
January 3, 2013, Plaintiff Gary Allen Rasmussen completed an
application for disability and disability insurance benefits.
See Transcript of Administrative Hearing (PageID.145-148).
Plaintiff alleges that he became disabled on November 9,
2012, due to back, neck, and leg pain limiting his ability to
engage in employment. Plaintiff's application was denied
initially and Plaintiff requested an administrative hearing
before an Administrative Law Judge (ALJ). (PageID.102,
105-111). ALJ Patrick H. Morrison, held a hearing on April 9,
2015. (PageID.49-91). At the hearing, Plaintiff and
Vocational Expert Les Goldsmith testified. In a decision
issued on May 6, 2015, the ALJ denied Plaintiff's claims
for benefits. (PageID.35-42).
found that Plaintiff could perform jobs that existed in
significant numbers in the national economy given
Plaintiff's residual functional capacity (RFC) and
therefore concluded that Plaintiff was not under a
“disability” under the Social Security Act (20
C.F.R. § 404.1520(g)). The ALJ's decision became the
agency's final decision when the Appeals Council denied
Plaintiff's request for review. Plaintiff now seeks
judicial review of the agency's final decision denying
his request for disability benefits.
was 56 years old at the time of the hearing. (PageID.57).
Plaintiff was five foot eight and one half inches tall and
weighed two hundred and ten pounds. (PageID.58). Plaintiff
sold life insurance and made about $3, 600.00 in the previous
year. (PageID.59). Plaintiff drives a vehicle every day.
Id. Plaintiff completed one year of college and then
received vocational training as a financial service
representative. (PageID.60). Plaintiff's past work
included eight years as financial service representative, two
years as a branch office manager, and about one year as
multistate marketing director. (PageID.61-64). Plaintiff
lifted up to thirty pounds in these positions and would spend
time at an office and traveling. (PageID.64). Plaintiff has
experience in the financial industry with different
the hearing, Plaintiff asserted that he experiences back
spasms and back pain while sitting, and almost daily
headaches. (PageID.67). At the time of the hearing, Plaintiff
described “pretty bad lower back pain.”
Id. Plaintiff suffers from degenerative joint
disease and degenerative disc disease in his lumber spine.
Id. The pain radiates down to the buttocks area, but
only about once a week. (PageID.68). Plaintiff began
experiencing pain in the late 1970s. Id. Plaintiff
relieves the pain by taking Norco, Ibuprofen, and Tylenol.
Id. He also takes Flexeril as a muscle relaxant.
Id. Plaintiff takes Norco pills when the pain is
really bad, and when the Ibuprofen is not working.
has seen chiropractors, doctors, and physical therapists,
works out every day, and performs a stretching and yoga
regimen for “maybe 10 or 20 minutes a day as I can do
it.” Id. Plaintiff goes to the YMCA and uses a
treadmill, stationary bike, or elliptical machine.
Id. Plaintiff uses ice and heat regularly.
(PageID.71). Plaintiff used to go to a chiropractor, but
after May of 2011, he transitioned to physical therapy.
has bad knees. The right knee is worse, but does not affect
his ability to work. (PageID.72). Plaintiff has arthritis in
his neck and experiences pain and headaches. (PageID.73).
Plaintiff states that he experiences neck and back pain
together. Id. Both of Plaintiff's shoulders
“pop out of place.” Id. Plaintiff's
main problem is the arthritis from his brain stem to his
tailbone. Id. Plaintiff experiences muscle cramping
and spasms that cause his pain. Id. Plaintiff
explained that after sitting at a desk for about one half
hour he will experience headaches and spasms that become
has some difficulties lifting. After he recently lifted his
18 pound dog, he tweaked his back and was done for the day,
and he had to sit in a chair for two days while taking Norco
pain medication. (PageID.74). He experiences fatigue daily
due to sleeping only five hours pernight. (PageID.73-75). As
result, Plaintiff rests and takes naps during the day.
(PageID.75-76). Plaintiff is able to personally take care of
himself. (PageID.76). Plaintiff cooks, vacuums, dusts, makes
beds, cleans bathrooms, pays bills, does laundry, takes out
the trash, mows the lawn, grocery shops, attends church on
occasion, and is the President of the Lions Club.
(PageID.77). Plaintiff uses a laptop computer and cell phone,
uses email, and Facebook. (PageID.78). During an average day
he spends about fourteen hours using his phone for scheduling
appointments, and socialization. Plaintiff uses his laptop
weekly for work related activity. (PageID.79). Plaintiff can
walk for only fifteen or twenty minutes and is less motivated
to do so because his dog is too old. Id. Plaintiff
tries to exercise for a half an hour to one hour a day.
(PageID.80). Plaintiff enjoys riding his bike and in the
winter cross country skiing. Id. Plaintiff's
mother lives about a half hour away and he likes to drive to
her house and spend the day with her. Id. Plaintiff
reads two to four books per month. Id.
explained that his problems began in 1967 when he was
initially hurt in a bike accident, then he had several ski
jumping accidents in the 1970s, but after he was involved in
a car accident in 2009, his problems became more severe.
(PageID.81). Moreover, when he first started working, he was
told that if he worked really hard the first five years, it
would get easier, but Plaintiff discovered that was not true,
because it is harder to make money today since companies have
reduced what they will pay. Id.
Expert Goldsmith testified that Plaintiff's past
employment in the financial and insurance industry could be
characterized as a light, skilled job, but some of the
Plaintiff's past jobs would qualify as sedentary to
light, skilled work. (PageID.83). The vocational expert
testified that a hypothetical person of Plaintiff's age
with similar education and work experience who could not be
expected to work on ladders, ropes, scaffolding, or at
unprotected heights, limited to occasional stooping,
kneeling, crouching, and crawling, could perform
Plaintiff's past work. (PageID.84). If that same
hypothetical person was limited to only sedentary jobs then
positions such as bank manager and marketing director, and
some of the sales jobs could be performed, but not the jobs
characterized as light duty. (PageID.85). In addition to the
limitation of sedentary jobs, if the person could only sit
and stand during an eight hour day every half hour or so, the
same jobs could be performed. Id.
if the individual was off task 10 to 15 percent each day due
to neck and back pain, that individual would not be able to
perform these past relevant jobs and other jobs. (PageID.86).
However, an individual with this skillset would have
transferable skills which could lead to positions like
telemarketing or telephone order taking. Id. If such
an individual was unable to go to work on a given day, or had
to leave work due to pain in the neck or back at least two to
three times per month, that person would not be able to work
in competitive employment. (PageID.88).
determined that Plaintiff suffers from degenerative joint
disease in the low back and bilateral knees, which caused
severe limitation in Plaintiff's ability to do basic work
activities. (PageID.38). Plaintiff was also found to suffer
from non-severe impairments of headaches, bilateral shoulder
pain, and neck pain. Id. The ALJ concluded that
based upon Plaintiff's residual functional capacity,
Plaintiff could perform his past relevant work as an
insurance sales person, bank manager, or marketing director.
the Appeals Council denied Plaintiff's appeal, Plaintiff
filed this action asserting that the ALJ's decision to
deny disability benefits was improper because the
Plaintiff's medical condition prohibits him from fully
engaging in substantial gainful employment. Plaintiff filed a
motion for summary judgment, which will be construed as
Plaintiff's initial brief. The Commissioner filed a
response arguing that the ALJ's decision is supported by
substantial evidence. Plaintiff filed a reply arguing that
his disabling back pain would cause him to be off task 10-15
percent of the time, eliminating his ability to engage in
competitive employment as testified by the vocational expert.
of the ALJ's decision is limited to whether the ALJ
applied the correct legal standards and whether the findings
of the ALJ are supported by substantial evidence.”
Winslow v. Comm'r of Soc. Sec., 566
Fed.App'x 418, 420 (6th Cir. 2014) (quoting Blakley
v. Comm'r of Soc. Sec., 581 F.3d 399, 405 (6th Cir.
2009)); see also 42 U.S.C. § 405(g). The
findings of the ALJ are conclusive if they are supported by
substantial evidence. 42 U.S.C. § 405(g). Substantial
evidence is defined as more than a mere scintilla of evidence
but “such relevant evidence that a reasonable mind
might accept as adequate to support a conclusion.”
Jones v. Sec'y, Health & Human Servs., 945
F.2d 1365, 1369 (6th Cir. 1991). This Court is not permitted
to try the case de novo, nor resolve conflicts in
the evidence and cannot decide questions of credibility.
Brainard v. Sec'y of Health & Human Servs.,
889 F.2d 679, 681 (6th Cir. 1989); see Jones v.
Comm'r of Soc. Sec., 336 F.3d 469, 475 (6th Cir.
2003) (noting the ALJ's decision cannot be overturned if
sufficient evidence supports the decision regardless of
whether evidence also supports a contradictory conclusion).
This Court is required to examine the administrative record
as a whole and affirm the Commissioner's decision if it