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Rosewall v. Commissioner of Social Security

United States District Court, W.D. Michigan, Northern Division

July 24, 2018

JAY TYLER ROSEWALL, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendants.

          OPINION

          TIMOTHY P. GREELEY UNITED STATES MAGISTRATE JUDGE

         In December of 2013, plaintiff Jay Tyler Rosewell filed an application for disability and disability insurance benefits. (PageID.174-175). Plaintiff alleges that he became disabled on November 1, 2012, due to chronic back issues and surgeries involving a ruptured disc and damaged discs which cause debilitating pain. Plaintiff's last date of insured was December 31, 2012. (ECF 8-2, PageID.53). Plaintiff's application was denied initially and plaintiff requested an administrative hearing before an Administrative Law Judge (ALJ). (PageID.114-122, 132-133). ALJ Patricia S. McKay held a hearing on March 30, 2016. Plaintiff, represented by counsel, testified at the hearing. Vocational expert Michael E. Rosko also testified.

         Plaintiff testified that he was 43 years old at the time of the hearing. Plaintiff lives with his wife and two daughters in Champion, Michigan. (PageID.73). Plaintiff moved to a one story house because he was having trouble with stairs. (PageID.73-74). Plaintiff has a high school education and last worked as a pipefitter until about 2011. (PageID.74). Plaintiff also worked with a paving company as a flagman and density checker, as a truck driver for several different employers, for a research and development company which invented a plow harness for snow plows, and as a car salesman. (PageID.75-76, 80-81).

         Plaintiff explains that he became disabled on November 1, 2012. At that time, Plaintiff's wife quit work to take care of their adopted twin daughters born three months premature with problems associated with their birth mother's drug addiction. Plaintiff explains that he was unable to take care of the children and his only option was to apply for social security benefits. (PageID.86).

         Plaintiff suffers with back problems and has had five surgical procedures including two lumbar fusions and three lumbar laminectomies. (PageID.87). Plaintiff was doing well until his last accident. (PageID.88). Plaintiff has experienced some depression and received treatment for depression after attempting suicide. Id. Plaintiff takes Celexa as needed. (PageID.89). Plaintiff is unable to play baseball, fish, play basketball, use a snowblower, chop wood, and bear or deer hunt at camp. (PageID.90).

         Plaintiff explained that when he gets up in the morning he first rolls to his knees and stretches before standing. He would walk a little before trying to go down the stairs at his old house. After drinking coffee and stretching more, he watches television and walks around the house. (PageID.91). Plaintiff can drive to his doctor's appointments fifteen minutes away but his wife drives longer distances. Id. Plaintiff is able to wash and brush his teeth. (PageID.92). Plaintiff's sister watches the kids while his wife works. Id. Plaintiff has a walking stick, but uses it very little. (PageID.94).

         Plaintiff experiences consistent pain in his lower back and groin preventing him from standing or sitting for too long. Id. Plaintiff can stand for about a half hour, but only a couple minutes in one spot. (PageID.95). Plaintiff has had rhizotomies to cauterize nerve endings and injections for pain. (PageID.96). Plaintiff uses a TENS unit on occasion. Id.

         The vocational expert testified that a hypothetical individual who could perform light duty work, occasionally climb stairs or ladders, crouch, crawl, kneel, stoop, or bend, with accommodations to stand, sit, or change positions, in a low stress self-paced setting would not be able to perform plaintiff's past relevant work, but could perform jobs such as assembler (1, 000 jobs in Michigan and 15, 000 jobs nationally), packager (800 jobs in Michigan and 13, 000 jobs nationally), sorter (300 jobs in Michigan and 6, 000 jobs nationally), and in product processing and finishing (600 jobs in Michigan and 9, 000 jobs nationally). (PageID.102-105). If the same hypothetical individual could perform only sedentary work that individual could perform jobs such as assembler (1000 jobs in Michigan and 15, 000 jobs nationally), in product processing and finishing (600 jobs in Michigan and 9, 000 jobs nationally), sorter (300 jobs in Michigan and 6, 000 jobs nationally), in security (800 jobs in Michigan and 25, 000 jobs nationally), and as a parking cashier (1000 jobs in Michigan and 25, 000 jobs nationally). (PageID.105-106).

         The vocational expert testified that an individual needs to be on task ninety percent of the time to maintain a job. If an individual is off task twenty percent of the time employment would not be available to that person. (PageID.106-107). The vocational expert testified that it was unlikely that Plaintiff could be placed into employment due to his background and level of discomfort as described by his testimony during the hearing. (PageID.107-108).

         The ALJ found that plaintiff could perform jobs that existed in significant numbers in the national economy given plaintiff's residual functional capacity (RFC) and therefore concluded that plaintiff was not under a “disability” under the Social Security Act (20 C.F.R. § 404.1520(g)). The ALJ's decision became the agency's final decision when the Appeals Council denied plaintiff's request for review. Plaintiff now seeks judicial review of the agency's final decision denying his request for disability benefits.

         “[R]eview 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.App'x 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 findings of the ALJ are conclusive if they are supported by substantial evidence. 42 U.S.C. § 405(g). Substantial 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, Health & Human Servs., 945 F.2d 1365, 1369 (6th Cir. 1991). This Court is not permitted to try the case de novo, nor resolve conflicts in the evidence and cannot decide questions of credibility. Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); see Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003) (noting the ALJ's decision cannot be overturned if sufficient evidence supports the decision regardless of whether evidence also supports a contradictory conclusion). This Court is required to examine the administrative record as a whole and affirm the Commissioner's decision if it is supported by substantial evidence, even if this Court would have decided the matter differently. See Kinsella v. Schwikers, 708 F.2d 1058, 1059 (6th Cir. 1983); see also Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (holding that the court must affirm a Commissioner even if substantial evidence would support the opposite conclusion).

         The ALJ 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).

         Plaintiff has the burden of proving the existence and severity of limitations caused by his impairments and that he 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 found that although Plaintiff could not perform his past relevant work, he could perform sedentary work with some limitations. The ALJ found that Plaintiff could perform a significant ...


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