United States District Court, W.D. Michigan, Southern Division
HONORABLE JANET T. NEFF JUDGE
REPORT AND RECOMMENDATION
PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE
a social security action brought under 42 U.S.C. §
405(g), seeking review of a final decision of the
Commissioner of Social Security finding that plaintiff was
not entitled to disability insurance benefits (DIB). On March
3, 2015, plaintiff filed his application for DIB benefits.
Plaintiff alleged an October 1, 2014, onset of disability.
(ECF No. 7-5, PageID.143). Plaintiff's claim was denied
on initial review. (ECF No. 7-4, Page.ID.89-92). On November
17, 2016, he received a hearing before an ALJ. (ECF No. 7-2,
Page.ID.53-70). On February 8, 2017, the ALJ issued his
decision finding that plaintiff was not disabled. (Op., ECF
No. 7-2, PageID.42-47). On September 21, 2017, the Appeals
Council denied review (ECF No. 7-2, PageID.25-27), rendering
the ALJ's decision the Commissioner's final decision.
timely filed his complaint seeking judicial review of the
Commissioner's decision. Plaintiff argues that the
Commissioner's decision should be overturned on the
I. The ALJ committed reversible error in failing to find that
plaintiff's NYHA class four congestive heart failure
meets and/or equals the criteria of Listing 4.02 within the
II. The ALJ failed to comply with SSR 96-8p in assessing
III. The ALJ committed reversible error in failing to accord
proper weight to the opinion of Eugene M. Choo, M.D., who is
a specialist in the impairment of which plaintiff suffers.
(Plf. Brief, 1-2, ECF No. 11, PageID.824-25). For the reasons
stated herein, I recommend that the Court affirm the
reviewing the grant or denial of social security benefits,
this court is to determine whether the Commissioner's
findings are supported by substantial evidence and whether
the Commissioner correctly applied the law. See Elam ex
rel. Golay v. Commissioner, 348 F.3d 124, 125 (6th Cir.
2003); Buxton v. Halter, 246 F.3d 762, 772 (6th Cir.
2001). Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). The scope of the
court's review is limited. Buxton, 246 F.3d at
772. The court does not review the evidence de novo,
resolve conflicts in evidence, or make credibility
determinations. See Ulman v. Commissioner, 693 F.3d
709, 713 (6th Cir. 2012). “The findings of the
Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive[.]” 42
U.S.C. § 405(g). “The findings of the Commissioner
are not subject to reversal merely because there exists in
the record substantial evidence to support a different
conclusion. . . . This is so because there is a ‘zone
of choice' within which the Commissioner can act without
fear of court interference.” Buxton, 246 F.3d
at 772-73; see Gayheart v. Commissioner, 710 F.3d
365, 374 (6th Cir. 2013) (“A reviewing court will
affirm the Commissioner's decision if it is based on
substantial evidence, even if substantial evidence would have
supported the opposite conclusion.”).
found that plaintiff met the disability insured status
requirements of the Social Security Act through December 31,
2014. (Op., 3, ECF No. 7-2, PageID.44). Plaintiff had not
engaged in substantial gainful activity from his alleged
onset of disability date of October 1, 2014, through December
31, 2014. (Id.). Through his date last insured,
plaintiff had the following severe impairments: “renal
failure, obesity, and congestive heart failure.”
(Id.). Plaintiff did not have an impairment or
combination of impairments that met or equaled the
requirements of a listing impairment. (Id. at 4,
PageID.45). The ALJ found that, through his date last
insured, plaintiff retained the residual functional capacity
(RFC) to perform a range of light work with the following
exceptions: “he could occasionally climb ladders, ramps
and stairs. The claimant could occasionally balance, stoop,
kneel, crouch, and crawl.” (Id.).
found that plaintiff's statements regarding the
intensity, persistence, and limiting effects of his symptoms
were not entirely consistent with the medical evidence and
other evidence in the record. (Id. at 5, PageID.46).
found that plaintiff was not disabled at step four of the
sequential analysis because he could perform past relevant
work as a health and safety inspector. (Id. at 6,
PageID.47). The ALJ relied on the testimony of a vocational
expert (VE). The VE classified the plaintiff's past
relevant work as skilled and generally performed at the light
exertional level according to the Dictionary of Occupational
Titles and at the heavy exertional level as plaintiff
performed it. (ECF No. 7-2, PageID.63-64, 67).
argues that the ALJ's decision finding that his
impairments did not meet or equal Listing 4.02 during the
disability insured period is not supported by substantial
evidence. (Plf. Brief, 9-10, ECF No. 11, PageID.832-33; Reply
Brief, 1-2, ECF No. 13, PageID.859-60). Listing 4.02
addresses chronic heart failure.
Listing of Impairments “describes impairments the SSA
considers to be severe enough to prevent an individual from
doing any gainful activity, regardless of his or her age,
education, or work experience.” Rabbers v.
Commissioner, 582 F.3d 647, 653 (6th Cir. 2009)
(internal quotations omitted). “Because satisfying the
listings yields an automatic determination of disability ...
the evidentiary standards [at step three] ... are more
strenuous than for claims that proceed through the entire
five-step evaluation.” Peterson v.
Commissioner, 552 Fed.Appx. 533, 539 (6th Cir. 2014).
Plaintiff bears the burden of demonstrating that he meets or
equals a listing impairment at the third step of the
sequential evaluation. Id. An impairment that only
meets some of the criteria does not satisfy plaintiff's
burden. Sullivan v. Zebley, 493 U.S. 521, 530
requirements of Listing 4.02 are as follows:
4.02 Chronic heart failure while on a regimen of
prescribed treatment, with symptoms and signs described in
4.00D2. The required level of severity for this impairment is
met when ...