Hoon v. Commissioner of Social Security

          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 ...