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Hubert-Ward v. Commissioner of Social Security

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

February 26, 2018

JAN HUBERT-WARD, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Avern Cohn United States District Judge

          REPORT AND RECOMMENDATION CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkt. 14, 16)

          Stephanie Dawkins Davis United States Magistrate Judge

         I. PROCEDURAL HISTORY

         A. Proceedings in this Court

         On 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. 14, 16).

         B. Administrative Proceedings

         Plaintiff 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).[1] 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).

         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 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.).

         Thereafter, 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).

         B. Plaintiff's Claims of Error

         Plaintiff 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).

         According 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.).

         Finally, 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.

         C. Commissioner's Motion for Summary Judgment

         In 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. § 404.1527(e)(2)(i)).

         Although 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 ...


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