United States District Court, W.D. Michigan, Northern Division
TIMOTHY P. GREELEY, UNITED STATES MAGISTRATE JUDGE
a social security action brought under 42 U.S.C. §
405(g) seeking judicial review of a final decision of the
Commissioner of the Social Security Administration
(Commissioner). Plaintiff Lorie Ann Fooce seeks review of the
Commissioner's decision denying her claim for disability
insurance benefits (DIB) and supplemental security income
(SSI) under Title II and Title XVI of the Social Security
Act. Plaintiff filed an initial brief on September 13, 2017.
(ECF No. 14). The Commissioner filed a response brief on
October 11, 2017. (ECF No. 15). Both parties consented to
proceed before a Magistrate Judge. (ECF No. 10). This matter
is ready for decision.
was born on October 11, 1967. (PageID.309). She is five feet
tall and weighs in excess of 250 pounds. Plaintiff has a
high school diploma and has previously worked as a certified
nursing assistant, a custodian, and a housekeeper. Plaintiff
alleges that she became disabled on April 23, 2009, when she
injured her back while working as a certified nursing
17, 2009, Plaintiff filed an application for DIB.
(PageID.261-266). The alleged onset date was April 23, 2009,
and her last insured date was December 31, 2014. (PageID.261,
309). After her initial application was denied, Plaintiff
requested a hearing before an Administrative Law Judge (ALJ).
(PageID.30). On May 4, 2011, the ALJ held an administrative
hearing in which Plaintiff was represented by Attorney
Rudolph F. Perhalla. (PageID.48-79). At the hearing,
Plaintiff testified that her primary complaint is her lower
back pain and anxiety. (PageID.61). She stated that she had
gained 50 pounds since she quit work. (PageID.63). Plaintiff
lives with her mother and spends most of the day sitting or
lying down. (PageID.56). Although her mother did the majority
of the cooking and washing the dishes, Plaintiff would help
with some of the other cleaning around the house. Plaintiff
also stated that she has trouble sleeping and could walk
about a half of a block and sit for “like an hour, hour
and half.” (PageID.65).
12, 2011, the ALJ issued his decision finding that Plaintiff
was not disabled. (PageID.35-44). Plaintiff requested the
Appeals Council to review the ALJ's decision, but the
request was denied on February 7, 2013. (PageID.23-25).
Plaintiff then filed a complaint in this Court. See Fooce
v. Commissioner of Social Security, Case No: 2:13-cv-126
(W.D. Mich.). In that case, the parties filed a joint
stipulation for dismissal, and the Court subsequently entered
a judgment reversing and remanding the Commissioner's
the remand, the ALJ held a second administrative hearing on
November 19, 2014. (PageID.104-127). At this hearing,
Plaintiff's testimony was largely similar to her
testimony at the first hearing. She stated that she was in
constant pain and had trouble standing and walking. Plaintiff
testified the she is taking Effexor for her anxiety, and
Flexeril and Motrin for her back pain, and Flexeril,
Glyburide, and Metformin for her diabetes. (PageID.112-114).
She stated that she tried physical therapy and a pain
injection, but her conditions did not improve.
January 15, 2015, the ALJ issued his decision finding that
Plaintiff was not disabled. (PageID.88-99). In the opinion,
the ALJ's states that the Appeals Council remanded the
case to him to further evaluate a treating source's
statement, Plaintiff's obesity, and a November 2010 MRI.
(PageID.88). The ALJ's decision became the
Commissioner's final decision on February 14, 2017, when
the Appeals Council denied Plaintiff's request for
review of the ALJ's decision is limited to whether the
ALJ applied the correct legal standards and whether the
findings of the ALJ are supported by substantial
evidence.” Winslow v. Comm'r of Soc. Sec.,
566 Fed.Appx. 418, 420 (6th Cir. 2014) (quoting Blakley
v. Comm'r of Soc. Sec., 581 F.3d 399, 405 (6th Cir.
2009)); see also 42 U.S.C. § 405(g). The Court
may not conduct a de novo review of the case,
resolve evidentiary conflicts, or decide questions of
credibility. See Garner v. Heckler, 745 F.2d 383,
387 (6th Cir. 1984); see also Jones v. Comm'r of Soc.
Sec., 336 F.3d 469, 475 (6th Cir. 2003). It is the
Commissioner who is charged with finding the facts relevant
to an application for disability benefits, and the
Commissioner's findings are conclusive provided they are
supported by substantial evidence. See 42 U.S.C.
evidence is defined as more than a mere scintilla of evidence
but “such relevant evidence that a reasonable mind
might accept as adequate to support a conclusion.”
Jones v. Sec'y of Health & Human Servs., 945
F.2d 1365, 1369 (6th Cir. 1991). In determining the
substantiality of the evidence, the Court must consider the
evidence on the record as a whole and take into account
whatever evidence in the record fairly detracts from its
weight. See Richardson v. Sec'y of Health
& Human Servs., 735 F.2d 962, 963 (6th Cir. 1984).
The substantial evidence standard presupposes the existence
of a zone within which the decision maker can properly rule
either way, without judicial interference. See Mullen v.
Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (citation
omitted). This standard affords to the administrative
decision maker considerable latitude, and indicates that a
decision supported by substantial evidence will not be
reversed simply because the evidence would have supported a
contrary decision. See Bogle v. Sullivan, 998 F.2d
342, 347 (6th Cir. 1993); Mullen, 800 F.2d at 545.
must employ a five-step sequential analysis to determine
whether the claimant is disabled as defined by the Social
Security Act. See 20 C.F.R. §§
404.1520(a-f), 416.920(a-f); Warner v. Comm'r of Soc.
Sec., 375 F.3d 387, 390 (6th Cir. 2004). At step one,
the ALJ determines whether the claimant can still perform
substantial gainful activity. 20 C.F.R. §
404.1520(a)(4)(i). At step two, the ALJ determines whether
the claimant's impairments are considered
“severe.” 20 C.F.R. § 404.1520(a)(4)(ii). At
step three, the ALJ determines whether the claimant's
impairments meet or equal a listing in 20 C.F.R. part 404,
Subpart P, Appendix 1. 20 C.F.R. § 404.1520(a)(4)(iii).
At step four, the ALJ determines whether the claimant has the
residual functional capacity (“RFC”) to still
perform past relevant work. 20 C.F.R. §
404.1520(a)(4)(iv). At step five, after considering the
claimant's residual functional capacity, age, education,
and work experience, the ALJ determines whether a significant
number of other jobs exist in the national economy that the
claimant can perform. 20 C.F.R. § 404.1520(a)(4)(v). If
the ALJ determines Plaintiff is not disabled under any step,
the analysis ceases and Plaintiff is declared as such. 20
C.F.R § 404.1520(a). If the ALJ can make a dispositive
finding at any point in the review, no further finding is
required. 20 C.F.R. § 404.1520(a).
has the burden of proving the existence and severity of
limitations caused by her impairments and that she is
precluded from performing past relevant work through step
four. Jones v. Comm'r of Soc. Sec., 336 F.3d
469, 474 (6th Cir. 2003). At step five, it is the
Commissioner's burden “to identify a significant
number of jobs in the economy that accommodate the
claimant's residual functional capacity (determined at
step four) and vocational profile.” Id.
the ALJ determined that Plaintiff's claim failed at step
five of the analysis. He first found at step one that
Plaintiff had not engaged in substantial activity since April
23, 2009. At step two, the ALJ determined that Plaintiff had
the following severe impairments- degenerative disk disease
of the lumbar spine, obesity, diabetes mellitus, and an
anxiety disorder. At step three, the ALJ concluded that
Plaintiff did not have an impairment or a combination of
impairments that met or equaled the requirements of the
Listing of Impairments in 20 C.F.R. Part 404. Subpart P,
respect to Plaintiff's RFC, the ALJ found that Plaintiff
could perform sedentary work with the following limitations:
she can never climb ladders, ropes or scaffolds; occasionally
climb ramps or stairs; and occasionally balance, stoop,
crouch, kneel or crawl. In addition, the claimant must avoid
concentrated exposure to the use of moving machinery and
unprotected heights; and she is limited to unskilled work
involving simple, routine and repetitive tasks, no
interaction with the public and only occasional interaction
with coworkers, only work that allows ...