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Trepiak v. Berryhill

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

January 23, 2018

GREGORY TREPIAK, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          Magistrate Judge Elizabeth A. Stafford

          OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION [18] GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [14] AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [13]

          LAURIE J. MICHELSON, U.S. DISTRICT JUDGE

         Because of his gouty arthritis and hypertension, Gregory Trepiak[1] applied for disability insurance benefits under the Social Security Act. In September 2015, an administrative law judge (ALJ), acting on behalf of the Commissioner of Social Security, concluded that Trepiak was not disabled within the meaning of the Social Security Act. Trepiak appealed to this Court. The Court referred the case to Magistrate Judge Elizabeth Stafford who issued a Report and Recommendation to grant Defendant's motion for summary judgment and to deny Trepiak's motion for summary judgment. Trepiak makes two objections.

         For the reasons explained below, the Court will adopt the Magistrate Judge's Report and Recommendation.

         I.

         This Court performs a de novo review of those portions of Magistrate Judge Stafford's Report and Recommendation to which the parties have objected. See 28 U.S.C. § 636(b). The Court need not and does not perform a de novo review of the report's unobjected-to findings. Thomas v. Arn, 474 U.S. 140, 150 (1985); Garrison v. Equifax Info. Servs., LLC, No. 10-cv-13990, 2012 WL 1278044, at *8 (E.D. Mich. Apr. 16, 2012).

         “This Court must affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence in the record.” Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (citation omitted). “The substantial evidence standard is met if a reasonable mind might accept the relevant evidence as adequate to support a conclusion.” Longworth v. Comm'r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005) (citation and internal quotation marks omitted). Supporting a conclusion means there is more than a “scintilla” of evidence but it need not amount to a preponderance. See Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). “Even if supported by substantial evidence, however, a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.” Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007).

         A.

         Trepiak contends that the Magistrate Judge “did not fully address” his argument that the ALJ's finding was not supported by substantial evidence. (R. 19, PID 401-02; R. 13, PID 353- 59.) Specifically, Trepiak objects to the Magistrate Judge's rejection of his argument that the ALJ's residual functional capacity (RFC) assessment was in error because the ALJ found that Trepiak had functional limitations. (R. 19, PID 401.) Considering this argument anew, the Court reaches the same conclusion as the Magistrate Judge.

         Trepiak's argument is based on two statements by the ALJ that he believes are inconsistent. (See R. 19, PID 402.) The first statement by the ALJ is the following: “In this case, while I have no doubt that Claimant's impairments impose functional limitations, it is concluded that his subjective complaints are exaggerated and not entirely credible to the extent contended through the relevant period.” (R. 11, PID 70 (emphasis added).) The other statement by the ALJ: “[Trepiak] ha[s] the residual functional capacity to perform a full range of work at all exertional levels.” (R. 11, PID 68.) Essentially then, Trepiak argues that if he “no doubt” had “functional limitations” then how is it that he could perform “a full range of work at all exertional levels”? (See R. 19, PID 402.)

         Trepiak has not persuaded the Court that the ALJ's statements are inconsistent. The ALJ's “no doubt” comment was embedded in a paragraph that discussed how the other evidence in the record did not substantiate Trepiak's testimony and preceded the paragraph finding that the record as a whole “lacks evidence suggestive of a more restrictive residual functional capacity.” (R. 11-2, PID 70-71.) Moreover, the ALJ never said what “functional limitations” Trepiak “no doubt” had. It may be that the ALJ believed Trepiak's functional limitations did not preclude a full range of work at all exertional levels. Trepiak offers nothing to the contrary.

         And even assuming that the ALJ's two statements were inconsistent, that would at most mean that the RFC would be more limited than “a full range of work at all exertional levels.” But there is a big gap between being able to do the full range of heavy, medium, and light work and being disabled under the Act. In fact, the ALJ found that even if Trepiak was limited to sedentary and unskilled work, there would still be a number of occupations with numerous jobs that he could perform. (R. 11-2, PID 71-71.) Trepiak does not argue that the ALJ's comment that he had “some functional limitations” meant that his RFC was below sedentary and unskilled. He therefore has not shown any prejudice even if the ALJ's statements were internally inconsistent. See Bowen, 478 F.3d at 746.

         In passing, Trepiak also appears to object to the Magistrate Judge's finding that he had failed to provide record evidence demonstrating a more restrictive RFC. (R. 19, PID 401-02.) The Court will assume that Trepiak is arguing that, by pointing to evidence in the record that supports a more restrictive RFC, he has established that the ALJ's decision was not supported by substantial evidence. But pointing to evidence that would support a different outcome is not sufficient to establish that a decision was not supported by substantial evidence. See Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997) (“The decision of an ALJ is not subject to reversal, even if there is substantial evidence in the record that would have supported an opposite conclusion, so long as substantial evidence supports the conclusion reached by the ALJ.”). Indeed the parts of the record that Trepiak highlights about his condition in 2012, (his diagnosis of gout, multiple ...


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