United States District Court, W.D. Michigan, Northern Division
TIMOTHY P. GREELEY UNITED STATES MAGISTRATE JUDGE
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.
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).
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).
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).
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
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.
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
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).
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.
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
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 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.
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