United States District Court, W.D. Michigan, Southern Division
REPORT AND RECOMMENDATION
an action pursuant to Section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g), to review a final decision of
the Commissioner of Social Security denying Plaintiff's
claim for Disability Insurance Benefits (DIB) and
Supplemental Security Income (SSI) under Titles II and XVI of
the Social Security Act. Section 405(g) limits the Court to a
review of the administrative record, and provides that if the
Commissioner's decision is supported by substantial
evidence, it shall be conclusive. Pursuant to 28 U.S.C.
§ 636(b)(1)(B), authorizing United States Magistrate
Judges to submit proposed findings of fact and
recommendations for disposition of social security appeals,
the undersigned recommends that the Commissioner's
decision be affirmed.
Court's jurisdiction is confined to a review of the
Commissioner's decision and of the record made in the
administrative hearing process. See Willbanks v.
Sec'y of Health and Human Services, 847 F.2d 301,
303 (6th Cir. 1988). The scope of judicial review in a social
security case is limited to determining whether the
Commissioner applied the proper legal standards in making her
decision and whether there exists in the record substantial
evidence supporting that decision. See Brainard v.
Sec'y of Health and Human Services, 889 F.2d 679,
681 (6th Cir. 1989).
The Court may not conduct a de novo review of the case,
resolve evidentiary conflicts, or decide questions of
credibility. See Garner v. Heckler, 745 F.2d 383,
387 (6th Cir. 1984). It is the Commissioner who is charged
with finding the facts relevant to an application for
disability benefits, and her findings are conclusive provided
they are supported by substantial evidence. See 42 U.S.C. Â§
405(g). Substantial evidence is more than a scintilla, but
less than a preponderance. See Cohen v. Sec'y of
Dep't of Health and Human Services, 964 F.2d 524,
528 (6th Cir. 1992) (citations omitted). It is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion. See Richardson v. Perales, 402
U.S. 389, 401 (1971); Bogle v. Sullivan, 998 F.2d
342, 347 (6th Cir. 1993). In determining the substantiality
of the evidence, the Court must consider the evidence on the
record as a whole and take into account whatever in the
record fairly detracts from its weight. See Richardson v.
Sec=y of Health and Human Services, 735 F.2d 962, 963
(6th Cir. 1984).
been widely recognized, the substantial evidence standard
presupposes the existence of a zone within which the decision
maker can properly rule either way, without judicial
interference. See Mullen v. Bowen, 800 F.2d 535, 545
(6th Cir. 1986) (citation omitted). This standard affords to
the administrative decision maker considerable latitude, and
indicates that a decision supported by substantial evidence
will not be reversed simply because the evidence would have
supported a contrary decision. See Bogle, 998 F.2d
at 347; Mullen, 800 F.2d at 545.
was 41 years of age on his alleged disability onset date.
(PageID.153, 891). He possesses an eleventh grade education
and worked previously as an assembler. (PageID.952, 983).
Plaintiff applied for benefits on September 7, 2011, alleging
that he had been disabled since December 31, 2007, due to
diabetes, HIV, depression, ADHD, hypertension, obesity, and
periodontal disease. (PageID.153-68, 201, 891).
application was denied, after which time he requested a
hearing before an Administrative Law Judge (ALJ).
(PageID.82-151). On April 1, 2013, Plaintiff appeared before
ALJ Nicholas Ohanesian with testimony being offered by
Plaintiff and a vocational expert. (PageID.82-151). In a
written decision dated June 27, 2013, the ALJ determined that
Plaintiff was not disabled because he could perform his past
relevant work. (PageID.38-47). The Appeals Council declined
to review the ALJ's determination, rendering it the
Commissioner's final decision in the matter.
(PageID.28-32). The undersigned subsequently vacated the
Commissioner's decision on the ground that
Plaintiff's past relevant work, which the ALJ concluded
Plaintiff could still perform, did not constitute substantial
gainful activity and, therefore, could not serve as the basis
to deny Plaintiff's claim. (PageID.1018-29).
16, 2016, ALJ Ohanesian conducted another administrative
hearing at which testimony was offered by Plaintiff and a
vocational expert. (PageID.944-93). In a written decision
dated July 14, 2016, the ALJ again denied Plaintiff's
application on the ground that there existed a significant
number of jobs which Plaintiff could perform despite his
impairments. (PageID.889-903). The Appeals Council declined
to review the ALJ's determination, rendering it the
Commissioner's final decision in the matter.
(PageID.879-84). Plaintiff subsequently initiated this action
pursuant to 42 U.S.C. § 405(g), seeking judicial review
of the ALJ's decision.
insured status expired on December 31, 2007. (PageID.891).
Accordingly, to be eligible for DIB benefits, Plaintiff must
establish that he became disabled prior to the expiration of
his insured status. See 42 U.S.C. § 423;
Moon v. Sullivan, 923 F.2d 1175, 1182 (6th Cir.
OF THE ALJ'S DECISION
social security regulations articulate a five-step sequential
process for evaluating disability. See 20 C.F.R.
'' 404.1520(a-f), 416.920(a-f). If the
Commissioner can make a dispositive finding at any point in
the review, no further finding is required. See 20
C.F.R. '' 404.1520(a), 416.920(a). The regulations
also provide that if a claimant suffers from a nonexertional
impairment as well as an exertional impairment, both are
considered in determining his residual functional capacity.
See 20 C.F.R. '' 404.1545, 416.945.
burden of establishing the right to benefits rests squarely
on Plaintiff's shoulders, and he can satisfy his burden
by demonstrating that his impairments are so severe that he
is unable to perform his previous work, and cannot,
considering his age, education, and work experience, perform
any other substantial gainful employment existing in
significant numbers in the national economy. See 42
U.S.C. § 423(d)(2)(A); Cohen, 964 F.2d at 528.
While the burden of proof shifts to the Commissioner at step
five of the sequential evaluation process, Plaintiff bears
the burden of proof through step four of the procedure, the
point at which his residual functioning capacity (RFC) is
determined. See Bowen v. Yuckert, 482 U.S. 137, 146
n.5 (1987); Walters v. Comm'r of Soc. Sec., 127
F.3d 525, 528 (6th Cir. 1997) (ALJ determines RFC at step
four, at which point claimant bears the burden of proof).
determined that Plaintiff suffered from: (1) type-II diabetes
mellitus; (2) hypertension; (3) hyperlipidemia (high
cholesterol); (4) obesity; (5) HIV virus positive; (6)
obstructive sleep apnea; (7) cognitive disorder; (8) mood
disorder; (9) degenerative disc disease of the lumbar spine;
(10) bilateral carpal tunnel syndrome with status post
release procedures; (11) COPD; (12) osteoarthritis; (13)
plantar fasciitis; (14) neuropathy; and (15) dementia, severe
impairments that whether considered alone or in combination
with other impairments, failed to satisfy the requirements of
any impairment identified in the Listing of Impairments
detailed in 20 C.F.R., Part 404, Subpart P, Appendix 1.
respect to Plaintiff's residual functional capacity, the
ALJ determined that Plaintiff retained the capacity to
perform light work subject to the following limitations: (1)
he can occasionally climb ramps and stairs, but can never
climb ladders, ropes, or scaffolds; (2) he can occasionally
balance, stoop, kneel, crouch, and crawl; (3) he can
experience no more than frequent exposure to extremes of heat
or cold, humidity, or pulmonary irritants; and (4) he is
limited to simple, routine, and repetitive tasks.
found that Plaintiff was unable to perform his past relevant
work at which point the burden of proof shifted to the
Commissioner to establish by substantial evidence that a
significant number of jobs exist in the national economy
which Plaintiff could perform, his limitations
notwithstanding. See Richardson, 735 F.2d at 964.
While the ALJ is not required to question a vocational expert
on this issue, Aa finding supported by substantial evidence
that a claimant has the vocational qualifications to perform
specific jobs" is needed to meet the burden.
O Banner v. Secy of Health and Human Services, 587
F.2d 321, 323 (6th Cir. 1978) (emphasis added). This standard
requires more than mere intuition or conjecture by the ALJ
that the claimant can perform specific jobs in the national
economy. See Richardson, 735 F.2d at 964.
Accordingly, ALJs routinely question vocational experts in an
attempt to determine whether there exist a significant number
of jobs which a particular claimant can perform, his
limitations notwithstanding. Such was the case here, as the
ALJ questioned a vocational expert.
vocational expert testified that there existed more than 2,
000, 000 jobs in the national economy which an individual
with Plaintiffs RFC could perform, such limitations
notwithstanding. (PageID.983-85). This represents a
significant number of jobs. See Born v. Secy of Health
and Human Services, 923 F.2d 1168, 1174 (6th Cir. 1990);
Hall v. Bowen, 837 F.2d 272, 274 (6th Cir. 1988);
Martin v. Commissioner of Social Security, 170
Fed.Appx. 369, 374 (6th Cir., Mar. 1, 2006). The vocational
expert also testified that if Plaintiff were further limited
to sedentary work, there still existed approximately 670, 000
jobs in the national economy which Plaintiff could perform
consistent with his RFC. (PageID.987-88). Accordingly, the
ALJ concluded that Plaintiff was not entitled to disability
Plaintiff does not Satisfy the Listings
Listing of Impairments, detailed in 20 C.F.R., Part 404,
Subpart P, Appendix 1, identifies various impairments which,
if present to the severity detailed therein, result in a
finding that the claimant is disabled. Plaintiff argues that
he satisfies Section 12.07 (Somatoform Disorders) and Section
14.00 (Immune System Disorders) of the Listings. Plaintiff
bears the burden to demonstrate that he satisfies the
requirements of a listed impairment. See Kirby v.
Comm'r of Soc. Sec., 2002 WL 1315617 at *1 (6th
Cir., June 14, 2002). An impairment satisfies a listing,
however, “only when it manifests the specific findings
described in all of the medical criteria for that ...