United States District Court, E.D. Michigan, Southern Division
ARTHUR
J. TARNOW DISTRICT JUDGE
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON
CROSS-MOTIONS FOR SUMMARY JUDGMENT (R. 8, 10)
PATRICIA T. MORRIS UNITED STATES MAGISTRATE JUDGE
I.
RECOMMENDATION
In
light of the entire record in this case, I suggest that
substantial evidence does not support Defendant Commissioner
of Social Security's determination that Plaintiff Howard
Balakovich is not disabled. Accordingly, IT IS
RECOMMENDED that Plaintiff's Motion for Summary
Judgment, (R. 8), be GRANTED, the
Commissioner's Motion, (R. 10), be
DENIED, and the case be remanded to the
Commissioner under sentence four of 42 U.S.C. § 405(g).
II.
REPORT
A.
Introduction and Procedural History
Pursuant
to 28 U.S.C. § 636(b)(1)(B), E.D. Mich. LR 72.1(b)(3),
and by Notice of Reference, this case was referred to the
undersigned Magistrate Judge to review the final decision of
the Commissioner denying Plaintiff's claim for Title II
Disability Insurance Benefits (DIB) and Supplemental Income
Security Benefits (SSI). (R. 2.) The case is before
the Court upon the parties' cross-motions for summary
judgment. (R. 8, 10.)
Plaintiff
filed applications for DIB and SSI benefits on February 18,
2015, alleging that his disability began on November 14,
2014. (R. 7 at PageID.218, 225.) The Commissioner denied the
claim. (Id. at PageID.140, 141.) Plaintiff then
requested a hearing before an ALJ, which was held on March
23, 2017. (Id. at PageID.78-114.) The ALJ issued a
decision on May 2, 2017, finding Plaintiff not disabled
during the relevant period. (Id. at PageID.46-63.)
On February 26, 2018, the Appeals Council denied review, (R.7
at PageID.37-39), and Plaintiff filed for judicial review of
the final decision on April 25, 2018. (R. 1). He then filed
the instant Motion for Summary Judgment on July 10, 2018, (R.
8), the Commissioner countered with its own Motion on
September 6, 2018, (R. 10), and Plaintiff responded to the
Commissioner's motion. (R.11.)
B.
Standard of Review
The
district court has jurisdiction to review the
Commissioner's final administrative decision pursuant to
42 U.S.C. § 405(g). The district court's review is
restricted solely to determining whether the
“Commissioner has failed to apply the correct legal
standard or has made findings of fact unsupported by
substantial evidence in the record.” Sullivan v.
Comm'r of Soc. Sec., 595 F App'x. 502, 506 (6th
Cir. 2014) (internal quotation marks omitted). Substantial
evidence is “more than a scintilla of evidence but less
than a preponderance; it is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Rogers v. Comm'r of Soc.
Sec., 486 F.3d 234, 241 (6th Cir. 2007) (internal
quotation marks omitted).
The
Court must examine the administrative record as a whole, and
may consider any evidence in the record, regardless of
whether it has been cited by the ALJ. See Walker v.
Sec'y of Health & Human Servs., 884 F.2d 241,
245 (6th Cir. 1989). The Court will not “try the case
de novo, nor resolve conflicts in the evidence, nor decide
questions of credibility.” Cutlip v. Sec'y of
Health & Human Servs., 25 F.3d 284, 286 (6th Cir.
1994). If the Commissioner's decision is supported by
substantial evidence, “it must be affirmed even if the
reviewing court would decide the matter differently and even
if substantial evidence also supports the opposite
conclusion.” Id. at 286 (internal citations
omitted).
C.
Framework for Disability Determinations
Disability
benefits are available only to those with a
“disability.” Colvin v. Barnhart, 475
F.3d 727, 730 (6th Cir. 2007). “Disability” means
the inability
to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted
or can be expected to last for a continuous period of not
less than [twelve] months.
42 U.S.C. § 1382c(a)(3)(A). The Commissioner's
regulations provide that disability is to be determined
through the application of a five-step sequential analysis:
(i) At the first step, we consider your work activity, if
any. If you are doing substantial gainful activity, we will
find that you are not disabled.
(ii) At the second step, we consider the medical severity of
your impairment(s). If you do not have a severe medically
determinable physical or mental impairment that meets the
duration requirement . . . or a combination of impairments
that is severe and meets the duration requirement, we will
find that you are not disabled.
(iii) At the third step, we also consider the medical
severity of your impairment(s). If you have an impairment(s)
that meets or equals one of our listings in appendix 1 of
this subpart and meets the duration requirement, we will find
that you are disabled.
(iv) At the fourth step, we consider our assessment of your
residual functional capacity and your past relevant work. If
you can still do your past relevant work, we will find that
you are not disabled.
(v) At the fifth and last step, we consider our assessment of
your residual functional capacity and your age, education,
and work experience to see if you can make an adjustment to
other work. If you can make an adjustment to other work, we
will find that you are not disabled. If you cannot make an
adjustment to other work, we will find that you are disabled.
20 C.F.R. § 404.1520; see also Heston v. Comm'r
of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001).
“Through step four, the claimant bears the burden of
proving the existence and severity of limitations caused by
[his or] her impairments and the fact that [he or] she is
precluded from performing [his or] her past relevant
work.” Jones v. Comm'r of Soc. Sec., 336
F.3d 469, 474 (6th Cir. 2003). The claimant must provide
evidence establishing the residual functional capacity, which
“is the most [the claimant] can still do despite [his
or her] limitations, ” and is measured using “all
the relevant evidence in [the] case record.” 20 C.F.R.
§§ 404.1545(a)(1), 416.945(a)(1).
The
burden transfers to the Commissioner if the analysis reaches
the fifth step without a finding that the claimant is not
disabled. Combs v. Comm'r of Soc. Sec., 459 F.3d
640, 643 (6th Cir. 2006). At the fifth step, the Commissioner
is required to show that “other jobs in significant
numbers exist in the national economy that [the claimant]
could perform given [his or] her RFC and considering relevant
vocational factors.” Rogers, 486 F.3d at 241
(citing 20 C.F.R. §§ 416.920(a)(4)(v), (g)).
D.
ALJ Findings
Following
the five-step sequential analysis, the ALJ determined that
Plaintiff was not disabled. (R. 7 at PageID.46-68.) At step
one, the ALJ found that Plaintiff met the insured status
requirements through September 30, 2019, and that he had not
engaged in substantial gainful activity since his alleged
onset date of November 14, 2014. (Id. at PageID.48.)
At step two, the ALJ concluded that Plaintiff had the
following severe impairments: essential hypertension,
peripheral vertigo, cervical disc herniation without
myelopathy status post-surgery, right shoulder impingement
and mild degenerative change, bilateral carpal tunnel
syndrome, obesity, depression, and post-traumatic stress
disorder (PTSD). (Id.) The ALJ also decided,
however, that these impairments did not meet or medically
equal a listed impairment at step three. (Id. at
PageID.50-52.) Next, the ALJ found that Plaintiff had the
residual functional capacity (RFC) to perform
light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b)
except the claimant can frequently handle and finger with the
left and right upper extremities and can frequently reach
overhead with the right upper extremity. He can occasionally
climb ramps and stairs, kneel, crouch, crawl, stoop, and
balance but never climb ladders, ropes, and scaffolds. The
claimant can never be exposed to vibrations, unprotected
heights, and moving machinery parts. He is able to
understand, remember, and carry out simple instructions and
make simple work-related decisions. He can occasionally ...