United States District Court, E.D. Michigan, Southern Division
Cohn United States District Judge
REPORT AND RECOMMENDATION CROSS-MOTIONS FOR SUMMARY
JUDGMENT (Dkt. 14, 16)
Stephanie Dawkins Davis United States Magistrate Judge
Proceedings in this Court
December 1, 2016, plaintiff Jan Hubert-Ward 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 Avern Cohn referred
this matter to the undersigned for the purpose of reviewing
the Commissioner's unfavorable 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.
filed an application for a period of disability and
disability insurance benefits on November 4, 2012, alleging
disability beginning on June 4, 2011. (Tr. 73). The claims were
initially denied on January 13, 2014. (Id.).
Plaintiff requested a hearing and on September 28, 2015,
plaintiff appeared with counsel, before Administrative Law
Judge (“ALJ”) Henry Perez, Jr., who considered
the case de novo. (Id.). In a decision dated October
27, 2015, the ALJ found that plaintiff was not disabled. (Tr.
80). Plaintiff requested a review of this decision. (Tr.
64-66). The ALJ's decision became the final decision of
the Commissioner when the Appeals Council, on October 13,
2016, denied plaintiff's request for review. (Tr. 1-5);
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 DENIED, that
defendant's motion for summary judgment be
GRANTED, and that the findings of the
Commissioner be AFFIRMED.
born July 1, 1957, was 53 years old on the alleged disability
onset date. (See Tr. 207). She has past relevant
work as a childcare teacher. (Tr. 79). She stopped working
when she injured her back in an accident at work. (Tr. 89).
The ALJ applied the five-step disability analysis and found
at step one that plaintiff had not engaged in substantial
gainful activity since June 4, 2011, the alleged onset date.
(Tr. 75). At step two, the ALJ found that plaintiff's
asthma, osteoarthritis, and degenerative disc disease were
“severe” within the meaning of the second
sequential step. (Id.). 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. (Id.).
the ALJ assessed plaintiff's residual functional capacity
(“RFC”) as follows:
After careful consideration of the entire record, the
undersigned finds that Claimant has the residual functional
capacity to perform light work as defined in 20 CFR
404.1567(b) except lift and carry 20 pounds occasionally and
10 pounds frequently; sit 6 hours, stand 6 hours, walk 6
hours; push and pull as much as she is able to lift and
carry; occasionally climb ramps, stairs, and ladders and
scaffolds; occasionally stoop, kneel, crouch, crawl; avoid
concentrated exposure to pulmonary irritants.
(Tr. 76). At step four, the ALJ found that plaintiff was able
to perform her past relevant work as a childcare teacher as
generally performed. (Tr. 79). Therefore, the ALJ determined
that plaintiff was not disabled. (Tr. 80).
Plaintiff's Claims of Error
raises two issues before the Court: that the ALJ assessed an
inaccurate RFC and thus erroneously found work at Steps Four
and Five, and that the ALJ made an erroneous credibility
determination. (Dkt. 14, Pl.'s Brief, at p. 9).
to plaintiff, the assessed RFC does not include all of
plaintiff's limitations as required by SSR 85-15, and
thus is not supported by substantial evidence. (Id.
at p. 12). The ALJ found that plaintiff retained the RFC to
perform light work with exertional limitations and that she
was capable of performing past relevant work as a childcare
teacher. (Id. at p. 11). Plaintiff states that the
burden is on the Commissioner at Step Five of the sequential
review process. Plaintiff argues that the medical evidence
does not support the ALJ's determination that she was
capable of standing/walking for 6 out of 8 hours in a
workday. Specifically, the medical evidence shows that her
right lower extremity complications and chronic back pain
preclude her from standing/walking for extended periods, thus
rendering her unable to perform her past work. (Id.
at p. 12). According to plaintiff, at most she could perform
sedentary work, but that would direct a finding of
“disabled” under Medical Vocational Rule 201.14
because she was 53 years old at the alleged onset date.
(Id.). Plaintiff also argues that the medical
evidence shows she cannot perform work at any exertional
level. Dr. Riyadh Kasmikha diagnosed her with lumbar
radiculopathy and COPD. (Id. at p. 12-13). An MRI in
June 2014 showed significant disc herniation at ¶ 4-5
with neuroforaminal narrowing effecting the L4 and L5 nerve
root. (Id. at p. 13). The disc herniation and
subsequent effect on the nerve root are objective signs of
lumbar radiculopathy. Additionally, the ALJ stated during the
hearing that the Plaintiff would “grid” at
sedentary during the hearing. (Id.) (Tr. 103).
Plaintiff also contends that the ALJ's failure to create
an accurate hypothetical question incorporating her
limitations is not harmless error. (Id.).
plaintiff argues that her subjective complaints are supported
and not contradicted by the medical evidence and testimony,
and thus the ALJ erred in finding her not entirely credible.
(Id. at p. 14). Plaintiff claims that the ALJ used
“boilerplate” credibility language stating:
“the claimant's statements concerning the
intensity, persistence and limiting effects of these symptoms
are not entirely credible for the reasons explained in this
decision.” (Id.; Tr. 26). According to
plaintiff, her testimony should have been found credible and
the case should be remanded.
Commissioner's Motion for Summary Judgment
response, the Commissioner argues that the RFC is supported
by substantial evidence. (Dkt. 16, Dft.'s Brief, at p.
4). The Commissioner notes that plaintiff did not challenge
the ALJ's reliance on State agency reviewing physician
Dr. Langham who assessed an identical RFC, nor does she point
to any other medical opinion (as opposed to medical notes) of
record. (Id. at p. 4-5). If there were a competing
treating physician opinion, an ALJ may give greater weight to
a state agency reviewing expert's opinion where, as here,
it is supported by evidence in the record. (Id.).
The Commissioner notes that state agency reviewing physicians
such as Dr. Langham are “highly qualified physicians
… who are also experts in Social Security disability
evaluation.” (Id. at p. 5) (citing 20 C.F.R.
plaintiff stated that the burden is on the Commissioner at
Step Five, the Commissioner points out that plaintiff was
found disabled at Step Four on the basis of her ability to
perform past relevant work, without reaching Step Five.
(Id. at p. 6). Plaintiff performed her past relevant
work at the medium exertional level, but a claimant is not
disabled at Step Four if she can perform the past relevant
work as it is generally performed. (Id.) (citing SSR
82-61, 1982 WL 31387, at *2). The Commissioner further points
out that the law stating that a vocational expert's
testimony depends on whether the ALJ references all of a
claimant's limitations includes that “[i]t is well
established that an ALJ may pose hypothetical questions to a
vocational expert and is required to incorporate only those
limitations accepted as credible by the finder of
fact.” (Id.) (citing Casey v. Sec'y ...