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Nealy v. Commissioner of Social Security

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

September 25, 2017

VANESSA KAY NEALY, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Magistrate Judge Mona K. Majzoub

          OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, AFFIRMING THE FINDINGS OF THE COMMISSIONER, AND DISMISSING COMPLAINT

          Honorable David M. Lawson Judge

         The plaintiff filed the present action on June 14, 2016 under 42 U.S.C. § 405(g) seeking review of the Commissioner's decision denying her claim for supplemental security income benefits under Title XVI of the Social Security Act. The case was referred to United States Magistrate Judge Mona K. Majzoub under 28 U.S.C. § 636(b)(1)(B) and E.D. Mich. LR 72.1(b)(3). Thereafter, the plaintiff filed a motion for summary judgement to reverse the decision of the Commissioner and remand the case for further consideration by the administrative law judge. The defendant filed a motion for summary judgment requesting affirmance of the decision of the Commissioner. Magistrate Judge Mazjoub filed a report on August 7, 2017 recommending that the defendant's motion for summary judgment be granted, the plaintiff's motion for summary judgment be denied, and the decision of the Commissioner be affirmed. The plaintiff filed timely objections, and the defendant filed a response. The matter is now before the Court.

         The filing of timely objections to a report and recommendation requires the court to “make a de novo determination of those portions of the report or specified findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667 (1980); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This de novo review requires the court to re-examine all of the relevant evidence previously reviewed by the magistrate judge in order to determine whether the recommendation should be accepted, rejected, or modified in whole or in part. 28 U.S.C. § 636(b)(1).

         “The filing of objections provides the district court with the opportunity to consider the specific contentions of the parties and to correct any errors immediately, ” Walters, 638 F.2d at 950, enabling the court “to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute, ” Thomas v. Arn, 474 U.S. 140, 147 (1985). As a result, “‘[o]nly those specific objections to the magistrate's report made to the district court will be preserved for appellate review; making some objections but failing to raise others will not preserve all the objections a party may have.'” McClanahan v. Comm'r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (quoting Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987)).

         The Court has reviewed the file, the report and recommendation, and the plaintiff's objections and has made a de novo review of the administrative record in light of the parties' submissions.

         The plaintiff, who is now 55 years old, filed her application for supplemental security income benefits on March 8, 2013, when she was 50. The plaintiff has a high school education and formerly worked as a cashier, fast food worker, and packager. In the application that is the subject of the present appeal, the plaintiff alleged a disability onset date of January 18, 2010. She alleged she had been diagnosed with lupus, arthritis, and asthma.

         The plaintiff's application for disability benefits was denied initially on July 11, 2013. The plaintiff timely filed a request for an administrative hearing, and on November 12, 2014 the plaintiff appeared before Administrative Law Judge (ALJ) B. Lloyd Blair. On December 10, 2014, ALJ Blair issued a written decision in which he found that the plaintiff was not disabled. On April 20, 2016, the Appeals Council denied the plaintiff's request for review of the ALJ's decision. The plaintiff filed her complaint seeking judicial review on June 14, 2016.

         ALJ Blair reached his conclusion that the plaintiff was not disabled by applying the five-step sequential analysis prescribed by the Secretary in 20 C.F.R. § 416.920(a)(4). He found that although the plaintiff had engaged in substantial gainful activity between July 2013 and November 2013, there had been a continuous twelve-month period during which she did not engage in substantial gainful activity (step one); the plaintiff suffered from connective tissue disease, osteoarthritis, and asthma, impairments which were “severe” within the meaning of the Social Security Act (step two); and none of those impairments alone or in combination met or equaled a listing in the regulations (step three).

         The ALJ then determined that the plaintiff was capable of performing a range of light work as defined under 20 C.F.R. § 416.967(b), limited as follows: she required the option to sit or stand at will so she can change positions every 15 minutes; she can never use ladders, scaffolds, or ropes, but she can occasionally stoop, kneel, crouch, crawl, balance, and use ramps or stairs; she should avoid concentrated exposure to extreme cold, fumes, chemicals, and respiratory irritants; she can frequently, but not constantly, handle and finger; and she can never use foot controls. The ALJ then found that the plaintiff was unable to perform the duties required for her past relevant work, which was unskilled and performed at the light and medium exertional levels (step four).

         In applying the fifth step, the ALJ described that residual functional capacity (RFC) to a vocational expert, who testified that the plaintiff could perform jobs such as assembler, with 6, 000 jobs within the State of Michigan; inspector, with 4, 000 jobs within the State of Michigan; and packager, with 5, 000 jobs within the state of Michigan. Based on those findings and using Medical Vocational Rule 202.13 as a framework, the ALJ concluded that the plaintiff was not disabled within the meaning of the Social Security Act.

         In her motion for summary judgment, the plaintiff argued that the ALJ committed legal error when determining the plaintiff's RFC because he did not comply with Social Security Ruling (SSR) 96-8p, which directs the adjudicator to cite the record evidence that supports the RFC determination; and he failed to perform a function-by-function assessment. She also argued that the ALJ committed error when he did not recontact a consultative physician - Dr. Jack Salomon - to clear up a perceived inconsistency in Dr. Salomon's opinion on the plaintiff's limitations, which she believed was mandated by 20 C.F.R. § 404.1512(e); and the ALJ failed to give adequate reasons for rejecting the plaintiff's testimony about her own physical limitations.

         The magistrate judge determined that the ALJ complied with SSR 96-8p because he cited the medical and non-medical evidence that supported his decision, gave “some weight” to the consultative examiner's opinion, discussed the plaintiff's limitations, and incorporated them into the RFC. The magistrate judge also determined that applicable law does not require an ALJ to articulate a function-by-function analysis, referencing Johnson v. Comm'r of Soc. Sec., No. 14-14713, 2015 WL 12670490, at *10 (E.D. Mich. Sept. 18, 2015). Next, the magistrate judge rejected the plaintiff's argument that the ALJ was obliged to recontact the consultative examining physician, because the version of the applicable regulation (which actually is 20 C.F.R. ยง 416.912, applicable to SSI applications) in effect at the time ...


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