United States District Court, E.D. Michigan, Northern Division
CHRISTOPHER A. PEAK, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
R. GRAND MAGISTRATE JUDGE
ORDER ADOPTING REPORT & RECOMMENDATION, DENYING
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, GRANTING IN PART
AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT, AND REMANDING CASE
L. LUDINGTON UNITED STATES DISTRICT JUDGE
seeks judicial review of the denial of his application for
Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”). Plaintiff
worked in sales for an auto parts retailer, but stopped
working in April 2015 because of back pain, neck pain, and
headaches. (Tr. 39, 43, 196). He now alleges disability
primarily as a result of these conditions. (Tr. 38-39, 190).
After Peak's applications for DIB and SSI were denied at
the initial level (Tr. 77-93), he timely requested an
administrative hearing, which was held on April 11, 2017,
before ALJ Timothy Christensen (Tr. 33-54). Peak, who was
represented by Dannelly Smith, testified at the hearing, as
did vocational expert Scott Silver. (Id.). On August
9, 2017, the ALJ issued a written decision finding that Peak
is not disabled under the Social Security Act. (Tr. 20-28).
On January 29, 2018, the Appeals Council denied review. (Tr.
timely filed for judicial review of the final decision on
April 10, 2018. (Doc. #1). The matter was referred to
Magistrate Judge David R. Grand. (Doc. #4). On September 16,
2018, Peak filed a motion for summary judgment. (Doc. #19).
On November 14, 2018, the Commissioner filed a motion for
summary judgment. (Doc. #21). On May 23, 2019, Judge Grand
issued a report, recommending that Plaintiff's motion for
summary judgment be granted in part to the extent it seeks
remand, that Plaintiff's motion should be denied in part
to the extent it seeks an award of benefits, that
Defendant's motion for summary judgment be denied, and
that the complaint be remanded to the ALJ for further
proceedings. (Doc. #26).
Grand summarizes the ALJ's conclusions as follows:
Following this five-step sequential analysis, the ALJ found
that Peak is not disabled under the Act. At Step One, the ALJ
found that Peak has not engaged in substantial gainful
activity since the alleged onset date. (Tr. 22). At Step Two,
the ALJ found that he has the severe impairment of
degenerative disc disease. (Id.). At Step Three, the
ALJ found that Peak's impairments, whether considered
alone or in combination, do not meet or medically equal a
listed impairment. (Tr. 23).
The ALJ then assessed Peak's residual functional capacity
(“RFC”), concluding that he is capable of
performing sedentary work, with the following additional
limitations: requires a sit/stand option, which by exercising
he would be off task less than 10% of any given workday;
occasional postural activities, but no climbing of ladders,
ropes, or scaffolds; frequent bilateral reaching; must avoid
even moderate exposure to vibrations and hazards; and, due to
pain, would be limited to unskilled work that could be
learned by demonstration in 30 days or less. (Tr. 23- 24).
At Step Four, the ALJ found that Peak is not capable of
performing any of his past relevant work. (Tr. 27). At Step
Five, the ALJ determined, based in part on testimony provided
by the vocational expert in response to hypothetical
questions, that Peak is capable of performing the jobs of
order clerk (212, 000 jobs nationally), addresser (104, 000
jobs), and stuffer (71, 000 jobs). (Tr. 28). As a result, the
ALJ concluded that Peak is not disabled under the Act.
Id. at PageID.620-621.
Grand determined that the ALJ's Step Three finding was
not supported by substantial evidence. (Id. at
PageID.623). The ALJ found that Peak “does not have an
impairment or combination of impairment that meets or
medically equals” a listed impairment. (Tr. 23).
However, to support this conclusion the ALJ only stated:
The claimant's musculoskeletal impairments do not meet
listing-level severity. There is no evidence of
neuro-anatomic distribution of pain, limitation of motion of
the lower back, motor loss accompanied by sensory or reflex
loss, or positive straight leg raising in both sitting and
supine positions so as to meet the criteria of Listing 1.04.
Id. Listing 1.04(A) provides:
Evidence of nerve root compression characterized by
neuroanatomic distribution of pain, limitation of motion of
the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or reflex
loss and, if there is involvement of the ...