United States District Court, E.D. Michigan, Southern Division
Stephen J. Murphy United States District Judge.
REPORT AND RECOMMENDATION CROSS MOTIONS FOR SUMMARY
JUDGMENT (DKT. 15, 17)
STEPHANIE DAWKINS DAVIS UNITED STATES MAGISTRATE JUDGE
Proceedings in this Court
November 18, 2016, plaintiff filed the instant suit seeking
judicial review of the Commissioner's unfavorable
decision disallowing benefits. (Dkt. 1). Pursuant to 28
U.S.C. § 636(b)(1)(B) and Local Rule 72.1(b)(3), this
matter was referred to the undersigned for the purpose of
reviewing the Commissioner's decision denying
plaintiff's claim disability benefits. (Dkt. 2). This
matter is before the Court on cross-motions for summary
judgment. (Dkt. 15, 17). Plaintiff also filed a reply in
support of her motion. (Dkt. 18).
filed the instant claims for period of disability, disability
insurance benefits, and supplemental security income on July
5, 2013, alleging that she became disabled on April 5, 2013.
(Tr. 19). The claims were initially disapproved by the
Commissioner on September 9, 2013. Id. Plaintiff
requested a hearing and on June 8, 2015, plaintiff appeared
with counsel before Administrative Law Judge (ALJ) Yasmin
Elias, who considered the case de novo. (Tr. 38-83). In a
decision dated September 22, 2015, the ALJ found that
plaintiff was not disabled. (Tr. 16-29). Plaintiff requested
a review of this decision and on September 16, 2016, the
ALJ's decision became the final decision of the
Commissioner when, after the review of additional exhibits,
Appeals Council denied plaintiff's request for review.
(Tr. 1-7); Wilson v. Comm'r of Soc. Sec., 378
F.3d 541, 543-44 (6th Cir. 2004).
reasons set forth below, the undersigned
RECOMMENDS that plaintiff's motion for
summary judgment be GRANTED, that
defendant's motion for summary judgment be
DENIED, that the findings of the
Commissioner be REVERSED and that this
matter be REMANDED for further proceedings
under Sentence Four.
was born in 1979 and was 33 years old on the alleged onset
date. (Tr. 28). Plaintiff has past relevant work as a
certified nursing assistant, which carries a medium
exertional level and is classified as semi-skilled work. (Tr.
27). She claims disability due to problems with her back,
both knees, anxiety and asthma. (Tr. 84). In considering
plaintiff's claim, the ALJ applied the five-step
disability analysis and found at step one that plaintiff had
not engaged in substantial gainful activity since the alleged
onset date. (Tr. 21). At step two, the ALJ found that
plaintiff's osteoarthritis/degenerative joint disease of
the knees, anxiety, affective disorder, and alcohol/substance
abuse disorder were “severe” within the meaning
of the second sequential step. (Tr. 22). At step three, the
ALJ found no evidence that plaintiff's combination of
impairments met or equaled one of the listings in the
regulations. (Tr. 22-24). At step four, the ALJ found that
plaintiff was unable to perform her past relevant work. (Tr.
27). The ALJ concluded that plaintiff had the residual
functional capacity to perform a limited range of light work
…[T]he claimant has the residual functional capacity
to perform sedentary work as defined in 20 CFR 404.1567(a)
and 416.967(a) except the claimant can only occasionally
climb ramps or stairs, or kneel, crouch or crawl. The
claimant may never climb ladders, ropes or scaffolds. The
claimant may frequently balance with the use of a hand-held
assistive device. The claimant is limited to simple, routine,
repetitive tasks with only occasional interaction with the
public or coworkers.
(Tr. 24). At step five, the ALJ denied plaintiff benefits
because plaintiff could perform a significant number of jobs
available in the national economy. (Tr. 28-29).
Standard of Review
enacting the social security system, Congress created a
two-tiered system in which the administrative agency handles
claims, and the judiciary merely reviews the agency
determination for exceeding statutory authority or for being
arbitrary and capricious. Sullivan v. Zebley, 493
U.S. 521 (1990). The administrative process itself is
multifaceted in that a state agency makes an initial
determination that can be appealed first to the agency
itself, then to an ALJ, and finally to the Appeals Council.
Bowen v. Yuckert, 482 U.S. 137 (1987). If relief is
not found during this administrative review process, the
claimant may file an action in federal district court.
Mullen v. Bowen, 800 F.2d 535, 537 (6th Cir. 1986).
Court has original jurisdiction to review the
Commissioner's final administrative decision pursuant to
42 U.S.C. § 405(g). Judicial review under this statute
is limited in that the court “must affirm the
Commissioner's conclusions absent a determination that
the Commissioner has failed to apply the correct legal
standard or has made findings of fact unsupported by
substantial evidence in the record.” Longworth v.
Comm'r of Soc. Sec., 402 F.3d 591, 595 (6th Cir.
2005); Walters v. Comm'r of Soc. Sec., 127 F.3d
525, 528 (6th Cir. 1997). In deciding whether substantial
evidence supports the ALJ's decision, “we do not
try the case de novo, resolve conflicts in evidence, or
decide questions of credibility.” Bass v.
McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Garner
v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). “It
is of course for the ALJ, and not the reviewing court, to
evaluate the credibility of witnesses, including that of the
claimant.” Rogers v. Comm'r of Soc. Sec.,
486 F.3d 234, 247 (6th Cir. 2007); Jones v. Comm'r of
Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003) (an
“ALJ is not required to accept a claimant's
subjective complaints and may ... consider the credibility of
a claimant when making a determination of
disability.”); Cruse v. Comm'r of Soc.
Sec., 502 F.3d 532, 542 (6th Cir. 2007) (the
“ALJ's credibility determinations about the
claimant are to be given great weight, particularly since the
ALJ is charged with observing the claimant's demeanor and
credibility.”) (quotation marks omitted);
Walters, 127 F.3d at 531 (“Discounting
credibility to a certain degree is appropriate where an ALJ
finds contradictions among medical reports, claimant's
testimony, and other evidence.”). “However, the
ALJ is not free to make credibility determinations based
solely upon an ‘intangible or intuitive notion about an
individual's credibility.'” Rogers,
486 F.3d at 247, quoting Soc. Sec. Rul. 96-7p, 1996 WL
supported by substantial evidence, the Commissioner's
findings of fact are conclusive. 42 U.S.C. § 405(g).
Therefore, this Court may not reverse the Commissioner's
decision merely because it disagrees or because “there
exists in the record substantial evidence to support a
different conclusion.” McClanahan v. Comm'r of
Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006); Mullen
v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en
banc). 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, 486
F.3d at 241; Jones, 336 F.3d at 475. “The
substantial evidence standard presupposes that there is a
‘zone of choice' within which the Commissioner may
proceed without interference from the courts.”
Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994)
(citations omitted), citing, Mullen, 800 F.2d at
scope of this Court's review is limited to an examination
of the record only. Bass, 499 F.3d at 512-13;
Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001).
When reviewing the Commissioner's factual findings for
substantial evidence, a reviewing court must consider the
evidence in the record as a whole, including that evidence
which might subtract from its weight. Wyatt v. Sec'y
of Health & Human Servs., 974 F.2d 680, 683 (6th
Cir. 1992). “Both the court of appeals and the district
court may look to any evidence in the record, regardless of
whether it has been cited by the Appeals Council.”
Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535
(6th Cir. 2001). There is no requirement, however, that
either the ALJ or the reviewing court must discuss every
piece of evidence in the administrative record. Kornecky
v. Comm'r of Soc. Sec., 167 Fed.Appx. 496, 508 (6th
Cir. 2006) (“[a]n ALJ can consider all the evidence
without directly addressing in his written decision every
piece of evidence submitted by a party.”) (internal
citation marks omitted); see also Van Der Maas v.
Comm'r of Soc. Sec., 198 Fed.Appx. 521, 526 (6th
“[c]laimant bears the burden of proving his entitlement
to benefits.” Boyes v. Sec'y of Health &
Human Servs., 46 F.3d 510, 512 (6th Cir. 1994);
accord, Bartyzel v. Comm'r of Soc.
Sec., 74 Fed.Appx. 515, 524 (6th Cir. 2003). There are
several benefits programs under the Act, including the
Disability Insurance Benefits Program (DIB) of Title II (42
U.S.C. §§ 401 et seq.) and the
Supplemental Security Income Program (SSI) of Title XVI (42
U.S.C. §§ 1381 et seq.). Title II benefits
are available to qualifying wage earners who become disabled
prior to the expiration of their insured status; Title XVI
benefits are available to poverty stricken adults and
children who become disabled. F. Bloch, Federal Disability
Law and Practice § 1.1 (1984). While the two programs
have different eligibility requirements, “DIB and SSI
are available only for those who have a
‘disability.'” Colvin v. Barnhart,
475 F.3d 727, 730 (6th Cir. 2007).
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 12 months.
U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); 20
C.F.R. § 416.905(a) (SSI).
Commissioner's regulations provide that disability is to
be determined through the application of a five-step
Step One: If the claimant is currently engaged in substantial
gainful activity, benefits are denied without further
Step Two: If the claimant does not have a severe impairment
or combination of impairments, that “significantly
limits ... physical or mental ability to do basic work
activities, ” ...