United States District Court, W.D. Michigan, Southern Division
Pearl E. Funderburk, Plaintiff,
Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
PHILLIP J. GREEN, United States Magistrate Judge
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.
timely filed a complaint seeking judicial review of the
Commissioner's decision. Plaintiff argues that the
Commissioner's decision should be overturned on the
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
III. The ALJ failed to properly assess the “opinion of
(Plf. Brief at 1, ECF No. 11, PageID.1427). I recommend that
the Commissioner's decision be affirmed.
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).
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
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).
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 ...