Marquez v. Commissioner of Social Security

          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 ...