United States District Court, E.D. Michigan, Southern Division
PRECIOUS R. JOHNSON, Plaintiff,
HON. GEORGE CARAM STEEH COMMISSIONER OF SOCIAL MAG. JUDGE PATRICIA MORRIS SECURITY, Defendant.
ORDER ACCEPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION [DOC. 20]
CARAM STEEH UNITED STATES DISTRICT JUDGE
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
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).
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.
Objection No. 1
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
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).
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
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?
Attorney: Okay. Did you use any precision measuring