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Doherty v. Commissioner of Social Security

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

January 20, 2019

John Joseph Doherty, Plaintiff,
v.
Commissioner of Social Security, Defendant.

          HONORABLE JANET T. NEFF JUDGE

          REPORT AND RECOMMENDATION

          PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE

         This is 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.

         Plaintiff timely filed his complaint seeking judicial review of the Commissioner's decision. Plaintiff argues that the Commissioner's decision should be overturned on the following grounds:

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 insured period.
II. The ALJ failed to comply with SSR 96-8p in assessing plaintiff's RFC.
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 Commissioner's decision.

         Standard of Review

         When 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.”).

         The ALJ's Decision

         The ALJ 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.).

         The ALJ 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).

         The ALJ 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).

         Discussion 1.

         Plaintiff 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.

         The 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 (1990).

         The 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 ...

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