United States District Court, E.D. Michigan, Southern Division
District Judge Judith E. Levy
REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S
MOTION FOR REMAND PURSUANT TO SENTENCE FOUR (DE 15) and GRANT
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DE 17)
ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE
I.
RECOMMENDATION:
For
the reasons that follow, it is RECOMMENDED
that the Court DENY Plaintiff's motion
for remand pursuant to Sentence Four (DE 15),
GRANT Defendant's motion for summary
judgment (DE 17), and AFFIRM the
Commissioner's decision.
II.
REPORT
Plaintiff,
Robert Hoon, Jr., brings this action under 42 U.S.C.
§§ 405(g) and 1383(c)(3) for review of a final
decision of the Commissioner of Social Security
(“Commissioner”) denying his applications for
disability insurance (DI) and supplemental security income
(SSI) benefits. This matter is before the United States
Magistrate Judge for a Report and Recommendation on
Plaintiff's motion for remand pursuant to Sentence Four
(DE 15), the Commissioner's cross-motion for summary
judgment (DE 17), Plaintiff's reply (DE 18) and the
administrative record (DE 10).
A.
Background and Administrative History
Plaintiff
alleges his disability began on September 10, 2013, at the
age of 35. (R. at 164.) He lists several conditions (low back
pain, degenerative disc disease (DDD), lumbar spondylosis,
sacroiliac joint dysfunction of right side, and nerve damage
in right leg) that limit his ability to work. (R. at 191.)
His applications for DI and SSI were denied in July 2014. (R.
at 87-112.)
Plaintiff
requested a hearing by an Administrative Law Judge
(“ALJ”). (R. at 118-121.) ALJ Stephen Marchioro
held a hearing, and, on January 13, 2016, determined that
Plaintiff was not disabled within the meaning of the Social
Security Act. (R. at 22-86.) On January 24, 2017, the Appeals
Council denied Plaintiff's request for review. (R. at
1-7, 21.) Thus, ALJ Marchioro's decision became the
Commissioner's final decision.
Plaintiff
timely commenced the instant action on February 15, 2017. (DE
3.)
B.
Plaintiff's Medical History
The
administrative record contains approximately 412 pages of
medical records, of which Exhibits 1F through 17F were
available to the ALJ at the time of his January 13, 2016
decision. (R. at 38, 257-668.) These records will be
discussed in detail, as necessary, below.[1]
C.
Hearing Testimony
Plaintiff
testified at the December 2, 2015 hearing, when he was 37
years old. (R. at 47-78.) As Plaintiff is expressly
challenging the ALJ's credibility assessment in the
instant appeal, the Court will refer to Plaintiff's
testimony as necessary below. Vocational expert (VE) Kenneth
Browde testified at the hearing, providing answers to several
hypothetical questions, at least one of which is directly at
issue here and which will be discussed below. (R. at 78-84,
231-236.)
D.
The Administrative Decision
On
January 13, 2016, ALJ Marchioro issued his decision. (R. at
22-38.) At Step 1 of the sequential
evaluation process, [2] the ALJ found that Plaintiff had not
engaged in substantial gainful activity since September 10,
2013, the alleged onset date. (R. at 27.) At Step
2, the ALJ found that Plaintiff had the following
severe impairments: DDD of the lumbar spine and obesity.
(Id.) At Step 3, the ALJ found that
Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of one
of the listed impairments. (R. at 27- 28.) Between
Steps 3 and 4 of the sequential process, the
ALJ evaluated Plaintiff's residual functional capacity
(“RFC”)[3] and determined that Plaintiff had the RFC:
. . . to perform sedentary work as defined in 20 CFR
404.1567(a) and 416.967(a) except he can operate foot
controls bilaterally occasionally [exertional
limitations]. The claimant is never able to climb
ladders, ropes, or scaffolds, but he is able to climb ramps
and stairs frequently. The claimant is able to balance,
stoop, kneel, crouch, and crawl occasionally [postural
limitations]. He must avoid all exposure to excessive
vibration, the use of unguarded moving machinery, and all
exposure to unprotected heights [environmental
limitations].
(R. at 28-31.) At Step 4, the ALJ determined
that Plaintiff was unable to perform any past relevant work.
(R. at 31-32.) At Step 5, considering
Plaintiff's age, education, work experience, and RFC, the
ALJ determined that there were jobs that existed in
significant numbers in the national economy that Plaintiff
could perform. (R. at 32-33.) The ALJ therefore concluded
that Plaintiff had not been under a disability, as defined in
the Social Security Act, from September 10, 2013, through the
date of the decision. (R. at 33.)
E.
Standard of Review
The
District Court has jurisdiction to review the
Commissioner's final administrative decision pursuant to
42 U.S.C. § 405(g). When reviewing a case under the
Social Security Act, the Court “must affirm the
Commissioner's decision if it ‘is supported by
substantial evidence and was made pursuant to proper legal
standards.'” Rabbers v. Comm'r of Soc.
Sec., 582 F.3d 647, 651 (6th Cir. at 2009) (quoting
Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241
(6th Cir. at 2007)); see also 42 U.S.C. §
405(g) (“[t]he findings of the Commissioner of Social
Security as to any fact, if supported by substantial
evidence, shall be conclusive . . . .”). Under this
standard, “substantial evidence is defined as
‘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
(quoting Cutlip v. Sec'y of Health & Human
Servs., 25 F.3d 284, 286 (6th Cir. 1994)). In deciding
whether substantial evidence supports the ALJ's decision,
the court does “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); Rogers, 486 F.3d at 247
(“It is of course for the ALJ, and not the reviewing
court, to evaluate the credibility of witnesses, including
that of the claimant.”).
Although
the substantial evidence standard is deferential, it is not
trivial. The Court must “‘take into account
whatever in the record fairly detracts from [the]
weight'” of the Commissioner's decision.
TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002)
(quoting Universal Camera Corp. v. NLRB, 340 U.S.
474, 487 (1951)). Nevertheless, “if substantial
evidence supports the ALJ's decision, this Court defers
to that finding ‘even if there is substantial evidence
in the record that would have supported an opposite
conclusion.'” Blakley v. Comm'r of Soc.
Sec., 581 F.3d 399, 406 (quoting Key v.
Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). Finally,
even if the ALJ's decision meets the substantial evidence
standard, “‘a decision of the Commissioner will
not be upheld where the SSA fails to follow its own
regulations and where that error prejudices a claimant on the
merits or deprives the claimant of a substantial
right.'” Rabbers, 582 F.3d at 651 (quoting
Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746
(6th Cir. 2007)).
F.
Analysis
1.
Discrepancy between hypothetical and RFC
Plaintiff claims the underlying sedentary hypothetical
“was defective and contrary to the RFC stated in the
unfavorable decision.” (DE 15 at 15.) The Court notes
that the ALJ's first hypothetical was less restrictive
than the second hypothetical as to exertional, postural and
environmental limitations; as to each, the VE testified there
were jobs such an individual could perform. (R. at 80-82.)
At Step
5, in finding that Plaintiff could perform jobs that exist in
significant numbers in the national economy, the ALJ
mentioned those positions that the VE referenced in his
answer to the second, more restrictive hypothetical. (R. at
32-33, 81-82.) This second hypothetical was as follows:
I'd like to ask you a second hypothetical question.
Please assume the same residual functional capacity
previously described with the following additional
limitations. The hypothetical person would be limited to
sedentary work as defined by the regulations. This
hypothetical person could operate foot controls bilaterally
only occasionally[.] [T]his hypothetical person could never
climb ladders, ropes or scaffolds but could occasionally
climb ramps or stairs, balance, stoop, kneel, crouch and
crawl. This hypothetical person would have to avoid all use
[…] all exposure to excessive vibration, all use of
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