United States District Court, E.D. Michigan, Southern Division
BRADLEY A. CARDEW, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION & ORDER (1) OVERRULING PLAINTIFF'S
OBJECTIONS (DKT. 26), (2) ACCEPTING THE RECOMMENDATION OF THE
MAGISTRATE JUDGE (DKT. 25), (3) DENYING PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT (DKT. 18), AND (4) GRANTING
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DKT.
A. GOLDSMITH, UNITED STATES DISTRICT JUDGE
social security case, Plaintiff Bradley A. Cardew appeals
from the final determination of the Commissioner of Social
Security that he is not entitled to child's insurance
benefits. The matter was referred to Magistrate Judge Anthony
P. Patti for a Report and Recommendation
("R&R"). The parties filed cross-motions for
summary judgment (Dkts. 18, 20), and the magistrate judge
issued an R&R recommending that the Court grant the
Commissioner's motion for summary judgment and deny
Cardew's motion for summary judgment (Dkt. 25). Cardew
filed objections to the R&R (Dkt. 26); the Commissioner
subsequently filed a response (Dkt. 27).
reasons that follow, the Court overrules Cardew's
objections and accepts the recommendation contained in the
magistrate judge's R&R. The Commissioner's motion
is granted and Cardew's motion is denied. The final
decision of the Commissioner is affirmed.
Court reviews de novo those portions of the R&R to which
a specific objection has been made. See 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b). Under 42 U.S.C. § 405(g),
this Court's "review is limited to determining
whether the Commissioner's decision 'is supported by
substantial evidence and was made pursuant to proper legal
standards.'" Ealy v. Comm'r of Soc.
Sec, 594 F.3d 504, 512 (6th Cir. 2010) (quoting
Rogers v. Comm'r of Soc. Sec, 486 F.3d 234, 241
(6th Cir. 2007)). "Substantial evidence is 'such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.'" Lindsley v.
Comm'r of Soc. Sec, 560 F.3d 601, 604 (6th Cir.
2009) (quoting Richardson v. Perales, 402 U.S. 389,
401 (1971)). In determining whether substantial evidence
exists, the Court may "look to any evidence in the
record, regardless of whether it has been cited by the
[Administrative Law Judge ("ALJ")]."
Heston v. Comm'r of Soc. Sec, 245 F.3d 528, 535
(6th Cir. 2001). "[T]he claimant bears the burden of
producing sufficient evidence to show the existence of a
disability." Watters v. Comm'r of Soc. Sec.
Admin., 530 F.App'x 419, 425 (6th Cir. 2013).
offers two objections to the magistrate judge's R&R:
(i) the magistrate judge erred in finding that the ALJ's
conclusion that Cardew's summer internship with Lear
Corporation did not constitute an unsuccessful work attempt
was supported by substantial evidence; and (ii) the
magistrate judge erred in finding that the ALJ's
conclusions regarding employer subsidy and countable earnings
were supported by substantial evidence. See Obj. at
1, 6. The Court addresses each in turn, concluding that both
argues that the magistrate judge erred in concluding that
there was substantial evidence to support the ALJ's
finding that his internship with Lear in the summer of 2004
did not constitute an unsuccessful work attempt.
Specifically, Cardew contends that the magistrate judge erred
when he relied on the fact that the internship ended as
planned, a consideration that Cardew believes to be
irrelevant to the inquiry of whether there was an
unsuccessful work attempt.
order to receive child's insurance benefits, a claimant
must show that he is the child of an individual entitled to
old-age or disability benefits, or was the child of a fully
insured individual and that (i) he filed an application for
benefits; (ii) at the time the application was filed, he was
unmarried and either under eighteen or suffering from a
disability that began prior to turning twenty-two; and (iii)
he is or was dependent on the insured individual. 42 U.S.C.
§ 402(d)(1). Where, as here, the claimant files the
application after he turns eighteen, he is "required to
show that he [has] been under a continuous disability which
began before his twenty-second birthday." Zharn v.
Comm'r of Soc. Sec, 35 F.App'x 225, 227 (6th
individual is not under a continuous disability if he has
engaged in substantial gainful activity. See Futernick v.
Richardson. 484 F.2d 647, 648 (6th Cir. 1973). The ALJ
ruled, and the magistrate judge affirmed, that Cardew engaged
in substantial gainful activity from May 10, 2004 through
August 14, 2004, the period during which he was a summer
intern at Lear. Cardew argues that this internship did not
constitute substantial gainful activity because it was an
unsuccessful work attempt. The magistrate judge rejected this
argument, reasoning that the internship ended when it was
supposed to, not due to the removal of any special
conditions. It is this finding to which Cardew objects.
social security administration regulations state that if a
claimant works six months or less, that work will be
considered an unsuccessful work attempt "if you stopped
working or you reduced your work and earnings below the
substantial gainful activity earnings level because of your
impairment or because of the removal of special conditions
that took into account your impairment and permitted you to
work." 20 C.F.R. § 404.1574(c)(3). Examples of
special conditions include (i) being provided special
assistance in performing work; (ii) working irregular hours
or taking frequent rest periods; (iii) being provided special
equipment or assigned work that is tailored to the
employee's impairment; (iv) being provided assistance
getting to and from work; (v) working at a lower standard of
productivity; and (vi) the opportunity to work was given
because of personal or familial relationships. See
20 C.F.R. 404.1573(c). Each of these special conditions
applied to Cardew during his time at Lear. He was permitted
to sit a desk tailored to his needs, take frequent rest
periods, and was given different work than his fellow interns
in order to accommodate his impairment. A.R. at 92 (Dkt. 13).
He was driven by family to and from work and was provided
with handicap-accessible doors at his office so that he could
more easily enter and exit the facility. Id. at 91.
There is also evidence that a family member provided him with
the internship and that he was permitted to work at a lower
level of productivity. Id.
disputes the magistrate judge's conclusion that a claim
of an unsuccessful work attempt will only lie when special
conditions are removed prior to the conclusion of employment,
thus causing the employee to stop working. Cardew argues that
an unsuccessful work attempt should also be found where the
position itself is discontinued, which results in the removal
of special conditions. He asserts that "[u]nder either
circumstances, the special conditions that allowed Plaintiff
to work no longer exist." Obj. at 4. He argues that
"[t]here is no language in the regulations that
identifies a necessary context for the removal of special
conditions and neither the ALJ, Defendant, nor the magistrate
judge cite to any language, precedent, or rationale which
supports such a conclusion." Id. at 3.
an examination of both the language of the regulation and
case law supports the ALJ's and magistrate judge's
interpretation. The regulation states that there is an
unsuccessful work attempt "if you stopped working . . .
because of your impairment or because of the removal of
special conditions that took into account your impairment and
permitted you to work." 20 C.F.R. § 404.1574(c)(3).
A logical reading of the regulation is that an unsuccessful
work attempt will only be found if the employee's reason
for stopping work is related to his impairment; either the
impairment forced the employee to stop working, or the
special conditions that previously permitted him to work with
an impairment were removed and caused him to be unable to
continue his work. There is nothing in the ...