United States District Court, E.D. Michigan, Southern Division
V. Parker United States District Judge
REPORT AND RECOMMENDATION CROSS-MOTIONS FOR SUMMARY
JUDGMENT (Dkt. 15, 22)
Stephanie Dawkins Davis United States Magistrate Judge
Proceedings in this Court
September 26, 2016, plaintiff Richard Cluchey filed the
instant suit. (Dkt. 1). Pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 72.1(b)(3), District Judge Linda
V. Parker referred this matter to the undersigned for the
purpose of reviewing the Commissioner's partially
favorable decision denying plaintiff's claim for a period
of disability and disability insurance benefits. (Dkt. 4).
This matter is before the Court on cross-motions for summary
judgment. (Dkt. 15, 22).
filed an application for a period of disability and
disability insurance benefits on January 7, 2014, alleging
disability beginning on December 13, 2012. (Tr.
The claims were initially disapproved by the Commissioner on
March 7, 2014. (Id.). Plaintiff requested a hearing
and on July 17, 2015, plaintiff appeared with counsel before
Administrative Law Judge (“ALJ”) Dennis M.
Matulewicz, who considered the case de novo.
(Id.). In a decision dated August 17, 2015, the ALJ
found that plaintiff was not disabled. (Tr. 23). Plaintiff
requested a review of this decision. (Tr. 12). The ALJ's
decision became the final decision of the Commissioner when
the Appeals Council, on August 15, 2016, denied
plaintiff's request for review. (Tr. 1-4); Wilson v.
Comm'r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir.
reasons set forth below, the undersigned
RECOMMENDS that plaintiff's motion for
summary judgment be DENIED, that
defendant's motion for summary judgment be
GRANTED, and that the findings of the
Commissioner be AFFIRMED.
born May 9, 1957, was 55 years old on the alleged disability
onset date. (Tr. 244). He has past relevant work as an IT
specialist. (Tr. 23). The ALJ applied the five-step
disability analysis and found at step one that plaintiff had
not engaged in substantial gainful activity since December
13, 2012, the alleged onset date. (Tr. 18). At step two, the
ALJ found that plaintiff's status post aortic and atrial
valve replacement and atrial fibrillation were
“severe” within the meaning of the second
sequential step. (Tr. 19). However, at step three, the ALJ
found no evidence that plaintiff's impairments singly or
in combination met or medically equaled one of the listings
in the regulations. (Tr. 20).
the ALJ assessed plaintiff's residual functional capacity
(“RFC”) as follows:
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in 20
CFR 404.1567(b) except the claimant can never climb ladders,
ropes or scaffolds; should avoid even moderate exposure to
extreme heat, cold, wetness, humidity and vibrations and
should avoid even moderate exposure to fumes, odors, dust,
gases or poor ventilation.
(Tr. 20). At step four, the ALJ found that plaintiff was able
to perform his past relevant work as an IT specialist. (Tr.
23). Therefore, the ALJ denied plaintiff benefits.
Plaintiff's Claims of Error
argues first that the ALJ erred by failing to consider his
facet arthropathy and obstructive sleep apnea to be severe
impairments at Step Two. (Dkt. 15, at p. 15). Plaintiff
acknowledges that an impairment is severe if it significantly
limits one's physical or mental ability to do basic work
activities. (Id.) (citing 20 C.F.R.
§404.1520(c)). Plaintiff claims his facet arthropathy is
a severe impairment because three years' worth of
chiropractic records show pain upon range of motion in the
spine, pain with flexion, an impaired gait, and tenderness
upon palpitations at all levels in the spine. (Id.
at p. 16). Further, he testified that he can only stand for
about thirty minutes due to his back pain and that he has to
lie down because of back pain. (Id.). Plaintiff
claims that a lumbar spine x-ray and his continued
chiropractic treatment show that his facet arthropathy is a
severe impairment. (Id. at p. 16-17).
his obstructive sleep apnea, plaintiff claims that progress
notes in January and May 2015 indicate excessive daytime
sleepiness and that he had non-restorative sleep.
(Id. at p. 17). Those notes also indicate that
plaintiff takes a one to two-and-a-half-hour nap during the
day. (Id.). He testified that his fatigue has become
worse and that it is one of the main reasons he cannot go
back to work and that he wakes up around 9:30 a.m. and has to
take a nap by 2:30 p.m. (Id.). Plaintiff also noted
that his stamina and mental capacity has deteriorated and
that he cannot focus. (Id.). Thus, according to
plaintiff, his sleep apnea should have been considered a
plaintiff argues that even if it were proper to determine
that his facet arthropathy and obstructive sleep apnea were
nonsevere impairments, the ALJ erred in failing to consider
all of his impairments, severe and nonsevere, throughout the
sequential review process. (Id. at p. 18). Plaintiff
acknowledges that the ALJ discussed why his facet arthropathy
and sleep apnea were nonsevere, but he claims the ALJ did not
consider the limiting effects of those impairments in Step
Four or Step Five. (Id.). As plaintiff points out,
it is well-settled law that if the ALJ finds a severe
impairment at Step Two and proceeds to continue through the
remaining steps of the analysis, failure to identify another
impairment as severe is harmless, as long as the ALJ
considered the entire record in his decision. (Id.)
(citing Sheehy v. Comm'r of Soc. Sec., 2015 WL
6394780, at *4 (W.D. Mich. Oct. 21, 2015)). Plaintiff argues
that failure to consider these impairments throughout the
analysis was harmful error because inclusion of the
limitations caused by them would render plaintiff disabled.
(Id. at p. 19). Specifically, the inclusion of his
sleep apnea limitations would limit him to light unskilled
work which, under Medical Vocational Rule 202.06, would
direct a finding of disability. (Id.). And,
inclusion of the limitations caused by facet arthropathy
render him disabled pursuant to Medical Vocational Rule
plaintiff argues that the ALJ failed to create an accurate
RFC and therefore erroneously found work at Step Five.
Plaintiff argues that the RFC does not include the entirety
of his documented limitations. (Id. at p. 20). The
limitations caused by facet arthropathy and obstructive sleep
apnea would include an inability to stand/walk for extended
periods and fatigue causing a lack of concentration.
(Id. at 20-21). Inclusion of these limitations would
direct a finding of disabled under the Medical Vocational
Rules. (Id. at p. 21).
Commissioner's Motion for Summary Judgment
Commissioner argues first that the ALJ properly found
plaintiff's facet arthropathy and sleep apnea nonsevere,
and even if it that finding was erroneous, the error was
harmless. (Dkt. 22, at p. 10). Plaintiff alleges disability
due to extreme back pain, but records show he never took
medication for the pain, that he often denied back pain to
treating doctors, and never sought more than chiropractic
treatment. (Id. at p. 11). The ALJ acknowledged
x-rays of plaintiff's back and his chiropractic
treatment, and reasonably concluded that the back pain caused
no significant work limitations. (Id. at p. 11-12).
Further, plaintiff never pursued treatment for his sleep
apnea, suggesting that sleep apnea did not cause significant
limitations. (Id. at p. 12). The ALJ noted that the
RFC was based on all the evidence of plaintiff's
impairments, severe and nonsevere, and considered limitations
from all of his symptoms. (Id.).
Commissioner also challenges the evidence plaintiff relies on
to prove severe impairment. According to the Commissioner,
subjective complaints and chiropractic treatment do not prove
that plaintiff's facet arthropathy caused significant
work limitations. (Id. at p. 13). Diagnosis alone
says nothing about the severity of the impairment.
Id. (citing Higgs v. Bowen, 880 F.2d 860,
863 (6th Cir. 1988). Plaintiff did not pursue medical
treatment or take medication for his back pain.
(Id.). Thus, the ALJ reasonably found facet
arthropathy nonsevere. (Id.). Further,
plaintiff's self-reported naps do not prove that his
sleep apnea caused significant work limitations.
(Id. at p. 14). As with his back pain, plaintiff did
not pursue medical treatment for his sleep apnea.
(Id.). Further, no doctor stated that he needed to
take naps due to sleep apnea. (Id.). The
Commissioner acknowledged that Dr. DeGregorio noted that
plaintiff would need to break every 30 minutes to lie down
for an hour due ...