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Gebbia v. Commissioner of Social Security

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

July 18, 2017



          PAUL L. MALONEY 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.


         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.


         Plaintiff was fifty-four years of age as of the most recent ALJ decision. (PageID.441, 1172.) Plaintiff completed his formal education after the eleventh grade and was previously employed as a dishwasher / kitchen helper and as a commercial truck driver. (PageID.401, 774-775, 939.). In his various communications with the Social Security Administration, he has alleged disability due to high blood pressure, chronic bronchitis, bipolar disorder, manic and severe depression, emphysema, lower back pain, occasional right hand cramps, and high cholesterol. (PageID.396, 446.)

         This case has a lengthy procedural history. Plaintiff first applied for benefits on November 7, 2008, alleging disability beginning April 15, 2007. (PageID.198, 341-352.) Plaintiff's applications were denied on March 11, 2009, after which time he requested a hearing before an ALJ. (PageID.198, 219-229.) After conducting an administrative hearing, ALJ Toni White-Bogan issued a decision, dated August 27, 2010, that concluded Plaintiff was not disabled. (PageID.195-212.)

         After that, Plaintiff proceeded in two directions. First, he sought review of the ALJ's denial before the Appeals Council. Second, he filed a second application for benefits on June 1, 2011, which was denied on initial review on September 20, 2011. (PageID.961.) On February 17, 2012, the Appeals Council reversed and remanded ALJ White-Bogan's decision. (PageID.213-217.) On remand, ALJ Romona Scales conducted a hearing on October 30, 2012. (PageID.102-145.) In her December 28, 2012, written decision ALJ Scales noted that pursuant to the Appeals Council's February 17, 2012 reversal order, Plaintiff's June 1, 2011 application for benefits was duplicitous. Accordingly she indicated she would consider it together with Plaintiff's original application. (PageID.82-83.) Ultimately, however, ALJ Scales found that Plaintiff was not disabled. (PageID.79-100.) The Appeals Council denied Plaintiff's request for review of that second decision on April 4, 2014. (PageID.41-46.)

         Plaintiff again proceeded down two paths. First, he filed a third application for benefits on April 26, 2014, alleging disability beginning December 29, 2012, the date after ALJ Scales' decision. (PageID.961.) Second, he filed a request for judicial review of his earlier applications on July 8, 2014. See Gebbia v. Comm'r of Soc. Sec., No. 1:14-cv-732 (W.D. Mich) (ECF No. 1). Plaintiff's federal case was remanded pursuant to a joint motion by the parties on December 19, 2014. See Gebbia v. Comm'r of Soc. Sec., No. 1:14-cv-732 (W.D. Mich) (ECF Nos. 17-19.) On remand, the Appeals Council sent the case back to ALJ Scales with further directions on March 9, 2015. (PageID.959-963.) The Appeal's Council further noted that Plaintiff's April 26, 2014, applications resulted in a determination that Plaintiff became disabled on December 29, 2012, under the Medical-Vocational Guidelines. (PageiD.961.) Thus the council directed the ALJ to consider the period between Plaintiff's original onset date of April 15, 2007, and December 28, 2012, the day before the date he was found disabled. (PageID.962.)

         On remand, ALJ Scales held a second hearing on October 14, 2015, at which time Plaintiff, a medical expert, and a vocational expert, all testified. (PageID.763-833.) On February 26, 2016, the ALJ issued an unfavorable written decision that concluded Plaintiff was not disabled during the relevant time period. (PageID.1172-1199.) Plaintiff did not timely file written objections to the Appeals Council. Under the regulations for cases remanded by federal courts, the ALJ's decision therefore became the final decision of the Commissioner. See 20 C.F.R. §§ 404.984(a), (d), 416.1484(a), (d). Thereafter, Plaintiff timely 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.

         In her February 26, 2016, decision, ALJ Scales determined Plaintiff's claim failed at step five. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity between the relevant time period of April 15, 2007, and December 28, 2012. (PageID.1177.) At step two, the ALJ found that Plaintiff suffered from the severe impairments of an affective and anxiety disorder as well as from chronic obstructive pulmonary disease (COPD). (PageID.1178.) At step three, the ALJ found that during the relevant time period, 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.1179-1181.) At step four, the 3. If an individual is not working and is suffering from a severe impairment which meets the duration requirement and which “meets or equals” a listed impairment in Appendix 1 of Subpart P of Regulations No. 4, a finding of “disabled” will be made without consideration of vocational factors (20 C.F.R. §§ 404.1520(d), 416.920(d)); 4. If an individual is capable of performing work he or she has done in the past, a finding of “not disabled” must be made (20 C.F.R. §§ 404.1520(e), 416.920(e)); 5. If an individual's impairment is so severe as to preclude the performance of past work, other factors including age, education, past work experience, and residual functional capacity must be considered to determine if other work can be performed. (20 C.F.R. §§ 404.1520(f), 416.920(f)). ALJ determined that during the relevant time period, Plaintiff retained the RFC based on all the impairments:

to lift 20 pounds occasionally and 10 pounds frequently, stand and/or walk for up to 4 hours in an 8 hour work period, and sit for up to 6 hours in an 8 hour work period. The claimant was further limited to frequent balancing, occasional crouching, crawling, stooping, kneeling and/or the climb or ramps and stairs. However, he could not have climbed ladders, ropes, or scaffolds. The claimant was limited to occasional overhead reach, and he would have had to avoid concentrated exposure to extreme temperature, humidity, dusts, fumes, odors, gases and areas of poor ventilation. The claimant could understand, remember, and carryout simple, unskilled tasks. The claimant could have maintained adequate attention and concentration for such tasks. The claimant was able to interact appropriately on an ongoing but brief/superficial basis with supervisors and co-workers; however, the claimant was precluded from work that required contact with the general public. The claimant would have worked best independently of others or in small groups of 3-4 people. The work could have required no fast-paced production or hourly quotas, but the claimant could have managed changes in routine work setting.

(PageID.1182.) Continuing with the fourth step, the ALJ determined that Plaintiff was unable to perform any of his past relevant work. (PageID.1189.) 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: marker (131, 0000 national positions), router (52, 000 national positions), and machine tender (20, 000 national jobs). (PageID.813-819.) Based on this record, the ALJ found ...

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