United States District Court, E.D. Michigan, Southern Division
Robert
H. Cleland, District Judge.
REPORT AND RECOMMENDATION
MONA
K. MAJZOUB, UNITED STATES MAGISTRATE JUDGE.
Plaintiff
Timothy Marquez seeks judicial review under 42 U.S.C. §
405(g) of Defendant Commissioner of Social Security's
determination that he is not entitled to benefits under the
Social Security Act. (Docket no. 1.) Before the Court are
Plaintiff's Motion for Summary Judgment (docket no. 14)
and Defendant's Motion for Summary Judgment (docket no.
17). This matter has been referred to the undersigned for
determination of all non-dispositive motions pursuant to 28
U.S.C. § 636(b)(1)(A) and issuance of a Report and
Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and
(C). (Docket no. 3.) Having reviewed the pleadings, the Court
dispenses with a hearing pursuant to Eastern District of
Michigan Local Rule 7.1(f)(2) and issues this Report and
Recommendation.
I.
RECOMMENDATION
For the
reasons that follow, it is recommended that Plaintiff's
Motion for Summary Judgment (docket no. 14) be
DENIED, that Defendant's Motion for
Summary Judgment (docket no. 17) be GRANTED,
and that the case be dismissed in its entirety.
II.
PROCEDURAL HISTORY
Plaintiff
applied for Supplemental Security Income (“SSI”)
and Disability Insurance Benefits (“DIB”) on
April 25, 2012, alleging that he has been disabled since
October 28, 2011. (TR 309-323.) The Social Security
Administration initially denied Plaintiff's claims on
June 29, 2012. (TR 108-125.) On January 23, 2014, Plaintiff
appeared with counsel and testified at a hearing before
Administrative Law Judge (“ALJ”) Kathleen
Scully-Hayes. (TR 67-104.) On June 10, 2014, ALJ Scully-Hayes
issued an unfavorable decision on Plaintiff's claims. (TR
133-141.) On January 13, 2016, the Appeals Council overturned
that decision because ALJ Scully-Hayes “d[id] not
properly apply the grid rules based on” Plaintiff
turning 50 (i.e. “closely approaching advanced
age”) since the date of his application. (TR 148.)
Instead of awarding benefits, the Appeals Council remanded
for consideration of “whether claimant has acquired any
skills that are transferrable to other occupations under the
guidelines in Social Security Ruling 82-41.” (TR 149.)
On May
31, 2017, Plaintiff appeared for a hearing on remand before
ALJ Lynn Ginsberg. (TR 38-66.) On July 5, 2017, ALJ Ginsberg
issued an unfavorable decision on Plaintiff's claims. (TR
19-31.) Plaintiff requested review by the Appeals Council,
which was denied on December 8, 2017. On February 6, 2018,
Plaintiff commenced this action for judicial review. (Docket
no. 1.) The parties filed cross motions for summary judgment,
which are currently before the Court. (Docket no. 14; docket
no. 17.)
III.
HEARING TESTIMONY AND MEDICAL EVIDENCE
Plaintiff
sets forth a brief procedural history of this matter as well
as a short summary of his medical issues. (Docket no. 14, pp.
4-12.) In addition, the ALJ summarized Plaintiff's
medical record (TR 21-29), and Defendant adopted the
ALJ's recitation of the facts (docket no. 17, p. 4).
Having conducted an independent review of Plaintiff s medical
record and the hearing transcript, the undersigned finds that
there are no material inconsistencies among these recitations
of the record. Therefore, in lieu of re-summarizing this
information, the undersigned will incorporate the above-cited
factual recitations by reference and will also refer to the
record as necessary to address the parties' arguments
throughout this Report and Recommendation.
IV.
ADMINISTRATIVE LAW JUDGE'S DETERMINATION
The ALJ
determined that Plaintiff did not engage in substantial
gainful activity since October 28, 2011, the alleged onset
date. (TR 21.) In addition, the ALJ found that Plaintiff had
the following severe impairments: “obesity; multiple
knee surgeries, including total right knee replacement;
arthritis of the left knee; history of right femur fracture;
degenerative joint disease of the right hip; impingement of
the right hip; degenerative disc disease of the lumbar and
thoracic spine; and diabetes mellitus.” (Id.)
Nevertheless, the ALJ concluded that Plaintiff did not have
an impairment or combination of impairments that met or
medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1. (TR
22.) The ALJ determined that Plaintiff had the Residual
Functional Capacity (“RFC”) to perform light work
as defined in 20 CFR 404.1567(b), subject to the following
non-exertional limitations:
▪ Plaintiff can lift and/or carry 20 pounds
occasionally and 10 pounds frequently.
▪ Plaintiff can stand and/or walk for two hours out of
an eight-hour workday with regular breaks.
▪ Plaintiff can sit for six hours out of an eight-hour
workday with regular breaks.
▪ Plaintiff cannot perform right knee foot pedals and
can perform only occasional pedal work with the left lower
extremity.
▪ Plaintiff requires the use of a hand-held assistive
device for walking over 100 yards or on uneven terrain.
▪ Plaintiff cannot climb ladders, ropes, or scaffolds.
▪ Plaintiff cannot crawl.
▪ Plaintiff can occasionally climb ramps and stairs,
balance, stoop, kneel, and crouch.
▪ Plaintiff should have only occasional exposure to
extreme cold.
▪ Plaintiff can have no exposure to excessive vibration
such as construction vibration.
▪ Plaintiff requires a sit/stand option allowing him to
sit or stand at the workstation, but he would not be off task
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