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Cardew v. Commissioner of Social Security

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

August 25, 2017

BRADLEY A. CARDEW, Plaintiff,
v.
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. 20)

          MARK A. GOLDSMITH, UNITED STATES DISTRICT JUDGE

         In this 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).

         For the 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.

         I. LEGAL STANDARD

         The 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).

         II. ANALYSIS

         Cardew 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 lack merit.

         A. Objection One

         Cardew 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.

         In 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 Cir. 2002).

         An 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.

         The 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.

         Cardew 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.

         However, 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 ...


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