United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT [14  , 15], GRANTING
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT , AND
AFFIRMING DECISION OF THE ALJ
R. GRAND, UNITED STATES MAGISTRATE JUDGE
Jeffery Steven Rose (“Rose”) brings this action
pursuant to 42 U.S.C. §§ 405(g), 1383(c), and
1631(c)(3), challenging the final decision of Defendant
Commissioner of Social Security (“Commissioner”)
denying his application for Supplemental Security Income
(SSI) and disability insurance benefits (“DIB”)
under the Social Security Act (the “Act”). Both
parties have filed summary judgment motions (Docs. #14, #15,
#20), and Rose filed a reply brief. (Doc. #23). The parties
have consented to this Court conducting all proceedings,
including entering a final judgment, pursuant to 28 U.S.C.
§ 636(c) and Fed.R.Civ.P. 73. (Doc. #16). A hearing was
held on September 7, 2017, where Rose's attorney, Lewis
M. Seward, and the attorney for the Commissioner, Amy C.
Bland, appeared by telephone.
filed applications for SSI and DIB on August 21, 2013,
alleging disability beginning December 1, 2005. Rose's claims
were initially denied by the state disability determination
service (“DDS”) on November 19, 2013, and he
subsequently requested a hearing before an ALJ. ALJ Mark Kim
held a hearing on May 12, 2015, at which Rose, acting pro
se, and a vocational expert testified. (Tr. 25-54). On
July 16, 2015, ALJ Kim issued a decision finding that Rose
was not disabled through the date of the decision. (Tr.
10-20). The ALJ's decision became the Commissioner's
final decision when the Appeals Council denied Rose's
request for review on June 9, 2016. (Tr. 1-3). Rose, now
represented by counsel, timely filed his instant complaint
challenging ALJ Kim's decision. (Doc. #1).
challenge to the ALJ's decision fall into two categories:
(1) that the ALJ failed to develop the record; and (2) that
the RFC adopted by the ALJ is not (in a few separate
respects) supported by substantial evidence. For the reasons
stated on the record, including the following, these
arguments lack merit.
Argument that the ALJ Failed to Fully Develop the
parties agree that absent special circumstances, the claimant
has the burden of providing a complete record, and that those
“special circumstances” exist only when the
claimant: (1) appears without counsel; (2) is not capable of
presenting an effective case; and (3) is unfamiliar with the
hearing procedures. Nabours v. Comm'r of Soc.
Sec., 50 F. App'x 272, 275 (6th Cir. 2002). The
hearing transcript in this case makes clear that despite
having certain mental limitations, Rose did not meet the
second and third “special circumstances.” This
was Rose's second hearing before an ALJ, so he was
familiar with the hearing process. The transcript reflects
that the ALJ explained the hearing procedures and Rose's
rights, and that Rose understood them. As to his desire to
proceed without an attorney, Rose explained that he was
“nauseated” by the “T.V. commercials
… about disability attorneys …” (Tr. 31).
He later referenced a negative experience he had when he was
represented by an attorney in an insurance dispute. (Tr. 46).
Most importantly, Rose repeatedly answered the ALJ's
substantive questions directly and cogently. The one question
and answer Rose highlights in his brief (Doc. #15 at 11,
citing Tr. 47) in which the ALJ asked Rose whether he
objected to the vocational expert's
(“VE”)'s qualifications, does not change the
analysis. Rose answered, “No sir, ” and later
reiterated that he did not challenge the VE's
qualifications. (Tr. 47). In between, Rose added a comment
that suggests he understood, at least generally, what the VE
would be testifying about; Rose explained how individuals at
Saginaw Community Health had helped place him “out in
the workforce…” (Tr. 47). Additionally, as the
ALJ referenced in his decision, the record includes a
consulting doctor's finding that Rose's
“thoughts were spontaneous, logical, and
organized…He provided lots of details…”
(Tr. 17, 252).
the substance of the documents that Rose says should have
been included in the current record were discussed in the
prior ALJ's earlier decision and/or by the consultative
and DDS psychologist (and thus were before ALJ
Kim), or are simply immaterial in light of the
other substantial evidence in the record. The Court notes
that Rose's instant application contains no indication of
a bipolar disorder, and the record was replete with evidence
that Rose's re-fracture of his foot resulted only in him
receiving a “walking cast, ” and that he
continued to enjoy going on walks and riding a bicycle. (Tr.
40, 41, 176, 177, 202, 244-46, 252). Rose also testified that
while the issue caused his foot to be “crooked, ”
it does not cause him any pain. (Tr. 45).
Arguments that the ALJ Adopted an Improper RFC
to Rose's arguments, the ALJ was not required to base the
RFC upon a physician-determined RFC. Sparrow v.
Comm'r of Soc. Sec., No. 15-11397, 2016 WL 1658305,
at *7 (E.D. Mich. Mar. 30, 2016). Rather, the ALJ's
obligation was to determine an RFC that is supported by
substantial evidence in the record. ALJ Kim did that here in
adopting the following RFC:
medium work … except he can frequently climb ramps and
stairs, balance, stoop, kneel, crouch, or crawl; he is
limited to simple, routine, and repetitive tasks; and he is
limited to work with no interaction with the public, and only
occasional interaction with co-workers.
terms of the physical demands of medium work which Rose
challenges, the record contains his own self-reports and
testimony of lifting the applicable amount of weight in his
prior work, as well medical and other record evidence
supporting that level of work. (Tr. 16, 17, 38, 187, 188,
244). As for walking, the ALJ appropriately noted Rose's
own self-reports and Dr. James Braseur's findings that
Rose could ambulate normally. (Tr. 244, 246, 252). The ALJ