United States District Court, E.D. Michigan, Northern Division
KELLY A. MCPHEE, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION AND ORDER ON CROSS MOTIONS FOR SUMMARY
JUDGMENT (DOCS. 12, 15)
Patricia T. Morris United States Magistrate Judge.
Introduction and Procedural History
an action for judicial review of a final decision by the
Commissioner of Social Security denying Plaintiff Kelly
McPhee's claim for disability benefits under the
Disability Insurance Benefits program of Title II, 42 U.S.C.
§ 401 et seq. (Doc. 1). The case is before the
undersigned magistrate judge pursuant to the parties'
consent under 28 U.S.C. § 636(c), E.D. Mich. LR
72.1(b)(3), and by Notice of Reference. (Docs. 11, 13). The
matter is currently before the Court on cross-motions for
summary judgment. (Docs. 12, 15).
was born on October 5, 1974, (Tr. 22), making her 36 at the
time she filed her initial application for Disability
Insurance Benefits on April 18, 2011. (Tr. 116) She alleged a
disability beginning on December 17, 2010. (Tr. 115). After
the Commissioner denied her claim, (Tr. 115-23), McPhee
requested a hearing, (Tr. 148-49), prior to which she amended
her alleged onset date to September 15, 2008. (Tr. 181, 386).
The hearing was held before Administrative Law Judge Ethel
Revels, (Tr. 37-71), and included testimony from both McPhee,
(Tr. 41-65), and Vocational Expert Diane Regan. (Tr. 65-70).
Ultimately, the ALJ found that McPhee had not been under a
disability during the relevant time period. (Tr. 127-135).
The Appeals Council, however, remanded the case due to the
ALJ's failure to properly consider the opinion of
treating physician Dr. Jilani, and failure to evaluate a
third-party function report from McPhee's sister. (Tr.
140-43). A second hearing was held before ALJ Revels, and
McPhee and Vocational Expert Regan both testified once more.
(Tr. 73-114). Again, the ALJ found that McPhee had not been
under a disability, (Tr. 17-35), and this time the Appeals
Council denied McPhee's request for review. (Tr. 1-6).
This action followed.
Standard of Review
district court has jurisdiction to review the
Commissioner's final administrative decision pursuant to
42 U.S.C. § 405(g). The district court's review is
restricted to determining whether the “Commissioner has
failed to apply the correct legal standard or has made
findings of fact unsupported by substantial evidence in the
record.” Sullivan v. Comm'r of Soc. Sec.,
595 F. App'x 502, 506 (6th Cir. 2014) (internal citations
omitted). Substantial evidence is “more than a
scintilla of evidence but less than a preponderance; it is
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Rogers v.
Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.
2007) (internal quotations omitted).
Court must examine the administrative record as a whole, and
may consider any evidence in the record, regardless of
whether it has been cited by the ALJ. See Walker v.
Secretary of Health and Human Services, 884 F.2d 241,
245 (6th Cir. 1989). The Court will not “try the case
de novo, nor resolve conflicts in the evidence, nor decide
questions of credibility.” Cutlip v. Sec'y of
Health & Human Servs., 25 F.3d 284, 286 (6th Cir.
1994). If the Commissioner's decision is supported by
substantial evidence, “it must be affirmed even if the
reviewing court would decide the matter differently and even
if substantial evidence also supports the opposite
conclusion.” Id. at 286 (internal citations
Framework for Disability Determinations
the Act, “DIB and SSI are available only for those who
have a ‘disability.'” Colvin v.
Barnhart, 475 F.3d 727, 730 (6th Cir. 2007).
“Disability” means the inability
to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted
or can be expected to last for a continuous period of not
less than [twelve] months.
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); 20
C.F.R. § 416.905(a) (SSI). The Commissioner's
regulations provide that disability is to be determined
through the application of a five-step sequential analysis:
(i) At the first step, we consider your work activity, if
any. If you are doing substantial gainful activity, we will
find that you are not disabled. . . .
(ii) At the second step, we consider the medical severity of
your impairment(s). If you do not have a severe medically
determinable physical or mental impairment that meets the
duration requirement . . . or a combination of impairments
that is severe and meets the duration requirement, we will
find that you are not disabled. . . .
(iii) At the third step, we also consider the medical
severity of your impairment(s). If you have an impairment(s)
that meets or equals one of our listings in appendix 1 of
this subpart and meets the duration requirement, we will find
that you are disabled. . . .
(iv) At the fourth step, we consider our assessment of your
residual functional capacity and your past relevant work. If
you can still do your past relevant work, we will find that
you are not disabled. . . .
(v) At the fifth and last step, we consider our assessment of
your residual functional capacity and your age, education,
and work experience to see if you can make an adjustment to
other work. If you can make an adjustment to other work, we
will find that you are not disabled. If you cannot make an
adjustment to other work, we will find that you are disabled.
20 C.F.R. §§ 404.1520, 416.920. See also Heston
v. Comm'r of Soc. Sec., 245 F.3d 528, 534 (6th Cir.
2001). “Through step four, the claimant bears the
burden of proving the existence and severity of limitations
caused by her impairments and the fact that she is precluded
from performing her past relevant work.” Jones v.
Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir.
2003). A claimant must establish a medically determinable
physical or mental impairment (expected to last at least
twelve months or result in death) that rendered her unable to
engage in substantial gainful activity. 42 U.S.C. §
423(d)(1)(A). The burden transfers to the Commissioner if the
analysis reaches the fifth step without a finding that the
claimant is not disabled. Combs v. Comm'r of Soc.
Sec., 459 F.3d 640, 643 (6th Cir. 2006). At the fifth
step, the Commissioner is required to show that “other
jobs in significant numbers exist in the national economy
that [the claimant] could perform given her RFC [residual
functional capacity] and considering relevant vocational
factors.” Rogers, 486 F.3d at 241 (citing 20
C.F.R. §§ 416.920(a)(4)(v), (g)).
McPhee's second hearing, the ALJ issued her decision on
October 6, 2015. (Tr. 17-28). At step one, the ALJ found that
McPhee had not engaged in any substantial gainful activity
between her alleged onset date of December 17, 2010, and her
date last insured of December 31, 2013. (Tr. 22). She
determined McPhee had the following severe impairments:
“residuals status post cervical fusion, ”
osteoarthritis of the back, obesity, and a learning disorder.
(Id.). Next, she found that McPhee did not have an
impairment that met or medically equaled the severity of a
listed impairment, explaining that she “is ambulatory
and does not meet listing listing (sic) 1.04 as she is
ambulatory. There is no listing for obesity.” (Tr. 23).
She then determined that McPhee had the residual functional
to perform light work . . . except she needed simple, routine
tasks such as those jobs with an svp of 1 or 2 because of
occasional limitations in her ability to maintain
concentration for extended periods because of pain but not
off task more than 10% of the workday; the work must require
only frequent use of the hands; involve only occasional
bending; no kneeling, crouching, or crawling; must not
involve operating in temperature extremes or wet or humid
areas; no overhead reaching; no more than occasional lifting
of head in an up/down motion; no above eye level work; no
full rotation of the neck; no operating at hazardous heights;
or climbing ladders, ropes, or scaffolds. The work must allow
for a sit or stand option at will not in excess of 30 minutes
at a time.
the ALJ found that McPhee could not perform her previous work
of molded rubber goods cutter or certified nursing assistant
(“CNA”), but that jobs “existed in
significant numbers in the national economy that the claimant
could have performed.” (Tr. 26) (internal citation
Court has thoroughly reviewed McPhee's medical record. In
lieu of summarizing her medical history here, the Court will
make reference and provide citations to the record as
necessary in its discussion of the parties' arguments.
Application Reports and Administrative Hearing
McPhee's Function Report
completed her Function Report on June 10, 2011. (Tr. 330). At
that time, she was married and ...