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Funderburk v. Commissioner of Social Security

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

February 26, 2018

Pearl E. Funderburk, Plaintiff,
v.
Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          PHILLIP J. GREEN, United States Magistrate Judge

         This is a social security action brought under 42 U.S.C. § 1383(c)(3), seeking review of a final decision of the Commissioner of Social Security finding that plaintiff was not entitled to supplemental security income (SSI) benefits. On May 28, 2013, plaintiff filed her application for SSI benefits. Plaintiff alleged a March 25, 2011, onset of disability. (ECF No. 7-5, PageID.233-38). Her claim was denied on initial review. (ECF No. 7-4, PageID.160-63). On April 17, 2015, she received a hearing before an ALJ. Plaintiff amended her claim to allege a May 28, 2013, onset of disability. (ECF No. 7-2, PageID.80-116) On May 8, 2015, the ALJ issued his decision finding that plaintiff was not disabled. (Op., ECF No. 7-2, Page ID.63-75). On August 2, 2016, the Appeals Council denied review (ECF No. 7-2, PageID.44-46), and the ALJ's decision became the Commissioner's final decision.

         Plaintiff timely filed a complaint seeking judicial review of the Commissioner's decision. Plaintiff argues that the Commissioner's decision should be overturned on the following grounds:

I. The ALJ failed to properly assess the factors listed in 20 C.F.R. § 416.929(c)(3).
II. The ALJ's factual finding regarding plaintiff's residual functional capacity is not supported by substantial evidence.
III. The ALJ failed to properly assess the “opinion of record.”

(Plf. Brief at 1, ECF No. 11, PageID.1427). I recommend that the Commissioner's decision be affirmed.

         Standard of Review

         When reviewing the grant or denial of social security benefits, this court is to determine whether the Commissioner's findings are supported by substantial evidence and whether the Commissioner correctly applied the law. See Elam ex rel. Golay v. Commissioner, 348 F.3d 124, 125 (6th Cir. 2003); Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Substantial evidence is defined as “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' ” Heston v. Commissioner, 245 F.3d 528, 534 (6th Cir. 2001) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); see Rogers v. Commissioner, 486 F.3d 234, 241 (6th Cir. 2007). The scope of the court's review is limited. Buxton, 246 F.3d at 772. The court does not review the evidence de novo, resolve conflicts in evidence, or make credibility determinations. See Ulman v. Commissioner, 693 F.3d 709, 713 (6th Cir. 2012); Walters v. Commissioner, 127 F.3d 525, 528 (6th Cir. 1997). “The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive[.]” 42 U.S.C. § 405(g); see McClanahan v. Commissioner, 474 F.3d 830, 833 (6th Cir. 2006). “The findings of the Commissioner are not subject to reversal merely because there exists in the record substantial evidence to support a different conclusion. . . . This is so because there is a ‘zone of choice' within which the Commissioner can act without fear of court interference.” Buxton, 246 F.3d at 772-73. “If supported by substantial evidence, the [Commissioner's] determination must stand regardless of whether the reviewing court would resolve the issues of fact in dispute differently.” Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir. 1993); see Gayheart v. Commissioner, 710 F.3d 365, 374 (6th Cir. 2013) (“A reviewing court will affirm the Commissioner's decision if it is based on substantial evidence, even if substantial evidence would have supported the opposite conclusion.”). “[T]he Commissioner's decision cannot be overturned if substantial evidence, or even a preponderance of the evidence supports the claimant's position, so long as substantial evidence also supports the conclusion reached by the ALJ.” Jones v. Commissioner, 336 F.3d 469, 477 (6th Cir. 2003); see Kyle v. Commissioner, 609 F.3d 847, 854 (6th Cir. 2010).

         Discussion

         The ALJ found that plaintiff had not engaged in substantial gainful activity from May 28, 2013, through the date of the ALJ's decision. (Op. at 4, ECF No. 7-2, PageID.66). Plaintiff had the following severe impairments: degenerative disc disease, right shoulder bursitis, obesity, depression, and anxiety. (Id.) Plaintiff did not have an impairment or combination of impairments that met or equaled the requirements of a listing impairment. (Id.). The ALJ found that plaintiff retained the residual functional capacity (RFC) for a range of sedentary work with the following exceptions:

The claimant can frequently reach overhead and in all other directions with her right upper extremity. The claimant can occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl, but she cannot climb ladders and scaffolds and cannot balance on uneven, slippery, or narrow surfaces. The claimant must never be exposed to unprotected heights, moving mechanical parts, and operation of a motor vehicle. The claimant can tolerate frequent exposure to extreme cold and vibration. The claimant can occasionally respond appropriately to supervisors and the public.

(Op. at 6-7, ECF No. 7-2, PageID.68-69). The ALJ found that plaintiff's testimony regarding her subjective limitations was not fully credible. (Id. at 7-11, PageID.69-73). Plaintiff has no past relevant work. (Id. at 12, PageID.74).

         The ALJ considered the testimony of a vocational expert (VE). In response to a hypothetical question regarding a person of plaintiff's age with her RFC, education, and work experience, the VE testified that there were approximately 461, 000 jobs that exist in the national economy that hypothetical person would be capable of performing. (ECF No. 7-2, PageID.111-13). The ALJ found that this constituted ...


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