Balakovich v. Commissioner of Social Security

          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 ...