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Cluchey v. Commissioner of Social Security

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

February 21, 2018

RICHARD CLUCHEY, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Linda V. Parker United States District Judge

          REPORT AND RECOMMENDATION CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkt. 15, 22)

          Stephanie Dawkins Davis United States Magistrate Judge

         I. PROCEDURAL HISTORY

         A. Proceedings in this Court

         On 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).

         B. Administrative Proceedings

         Plaintiff filed an application for a period of disability and disability insurance benefits on January 7, 2014, alleging disability beginning on December 13, 2012. (Tr. 16).[1] 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. 2004).

         For the 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.

         II. FACTUAL BACKGROUND

         A. ALJ Findings

         Plaintiff, 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).

         Thereafter, 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. (Id.).

         B. Plaintiff's Claims of Error

         Plaintiff 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).

         As to 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 severe impairment.

         Second, 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 201.06. (Id.).

         Finally, 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).

         C. Commissioner's Motion for Summary Judgment

          The 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.).

         The 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 ...


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