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Johnson v. Steeh

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

April 18, 2018

PRECIOUS R. JOHNSON, Plaintiff,
v.
HON. GEORGE CARAM STEEH COMMISSIONER OF SOCIAL MAG. JUDGE PATRICIA MORRIS SECURITY, Defendant.

          ORDER ACCEPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION [DOC. 20]

          GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE

         Plaintiff Precious R. Johnson challenges defendant Commissioner of Social Security's denial of his claim for social security disability insurance benefits (DIB). Before the court are cross motions for summary judgment, which were referred to the magistrate judge for a report and recommendation. On December 20, 2017, Magistrate Judge Morris issued a report recommending that defendant's motion for summary judgment be granted and that plaintiff's motion for summary judgment be denied. The court has reviewed the file, record, and magistrate judge's report and recommendation. Plaintiff filed timely objections to that report which this court has duly considered. For the reasons set forth below, this court shall accept and adopt the magistrate judge's report.

         STANDARD OF LAW

         “A judge of the court shall make a de novo determination of those portions of a report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." Id. A district court may affirm, modify, or reverse the Commissioner's decision, with or without remand. See 42 U.S.C. § 405(g). Findings of fact by the Commissioner are conclusive if supported by substantial evidence. Id. The court must affirm the decision if it is "based on [an appropriate] legal standard and is supported by substantial evidence in the record as a whole." Studaway v. Secretary of Health and Human Servs., 815 F.2d 1074, 1076 (6th Cir. 1987). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).

         ANALYSIS

         Plaintiff raises two objections to the report and recommendation. The first objection relates to the ALJ's finding that the plaintiff could perform his past work as an inspector. The second objection concerns the ALJ's rejection of plaintiff's walking and stooping limitations identified by Dr. Montasir.

         I. Objection No. 1

         Plaintiff argued before the magistrate judge that the ALJ erred in finding that he could perform his past relevant work as an inspector. Plaintiff contends that he performed a composite job entailing duties of both an inspector and a production worker. The magistrate judge acknowledged that the ALJ's written finding that plaintiff could perform his past work as an “inspector”, as opposed to a “production worker” was “undoubtedly an error” but concluded that based on “a brief survey of the record” that error should be deemed harmless. It is this conclusion that forms the basis of plaintiff's objection.

         A claimant is found not disabled at Step Four if the Commissioner determines he can return to his past work either as it was actually performed or as it is generally performed in the national economy. SSR 92-61; 20 C.F.R. § 404.1560(b)(2). “The relevant inquiry is whether Plaintiff can return to her past type of work, not just her former job.” Yournet v. Comm'r of Soc. Sec., No. 07-13087, 2008 WL 3833685, at *6 (E.D. Mich. Aug. 13, 2008). A composite job does not have a counterpart in the DOT because it has elements of two or more occupations. SSR 82- 61. It may be necessary to utilize the services of a vocational expert (“VE”) in situations involving a composite job. Id. “[A]n adjudicator can deny a claim at step 4 where the claimant remains capable of performing a composite job ‘as actually performed, ' but an ALJ is not permitted to make an adverse step 4 finding that the claimant remains capable of performing a composite job ‘as generally performed.'” Burgess v. Soc. Sec. Admin., No. 3:15-CV-00701, 2016 WL 5800467, at *4 (M.D. Tenn. Sept. 30, 2016) (quoting POMS DI 25005.020(B), available at 2011 WL 4753471).

         The magistrate judge noted that the VE characterized plaintiff's past work “as a production worker, DOT 706.687-010. Unskilled, SVP 2. Light per the DOT, medium per the claimant.” (Tr. 125). The magistrate judge compared plaintiff's description of his past work with the DOT's description of “production assembler” (a term used interchangeably with “production worker” by the ALJ, the VE and the magistrate judge) and found they were closely aligned. While the ALJ's comment at the hearing that plaintiff was doing two different jobs, production worker and inspector, shows his confusion, this was immediately clarified by plaintiff's testimony that the inspections he performed were superficial:

Attorney: . . . I think - was your job title an inspector, is that correct?
Plaintiff: Well, yeah, at the end, yeah. But I was only looking at the part. I wasn't using any - Attorney: Oh, was it visual inspection?
Plaintiff: Correct.
Attorney: Okay. Did you use any precision measuring ...

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