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McPhee v. Commissioner of Social Security

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

September 26, 2017

KELLY A. MCPHEE, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT (DOCS. 12, 15)

          Patricia T. Morris United States Magistrate Judge.

         I. OPINION

         A. Introduction and Procedural History

         This is 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).

         McPhee 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.

         B. Standard of Review

         The 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).

         The 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 omitted).

         C. Framework for Disability Determinations

         Under 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)).

         D. ALJ Findings

         After 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 capacity

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.

(Id.)

         Finally, 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 omitted).

         E. Administrative Record

         1. Medical Evidence

         The 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.

         2. Application Reports and Administrative Hearing

         a. McPhee's Function Report

         McPhee completed her Function Report on June 10, 2011. (Tr. 330). At that time, she was married and ...


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