United States District Court, E.D. Michigan, Southern Division
GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION CROSS-MOTIONS FOR SUMMARY
JUDGMENT (DKTS. 11, 12)
STEPHANIE DAWKINS DAVIS UNITED STATES MAGISTRATE JUDGE
Proceedings in this Court
6, 2018, plaintiff Harrison Humphries filed the instant suit.
(Dkt. 1). Pursuant to 28 U.S.C. Â§ 636(b)(1)(B) and Local Rule
72.1(b)(3), District Judge Gershwin A. Drain referred this
matter to the undersigned for the purpose of reviewing the
Commissioner's unfavorable decision denying
plaintiff's claim for a period of disability, disability
insurance benefits, and supplemental security income
benefits. (Dkt. 3). This matter is before the Court on
cross-motions for summary judgment. (Dkt. 11, 12).
filed an application for a period of disability, disability
insurance benefits, and supplemental security income on
November 10, 2014, alleging disability beginning on April 1,
2007. (Tr. 11). The claims were initially disapproved by
the Commissioner on February 19, 2016. Humphries requested a
hearing and on June 27, 2017, he appeared with counsel before
Administrative Law Judge (“ALJ”) J. William
Callahan, who considered the case de novo. (Tr.
11-32). In a decision dated November 20, 2017, the ALJ found
that plaintiff was not disabled. (Tr. 32). The ALJ's
decision became the final decision of the Commissioner when
the Appeals Council, on May 31, 2018, denied plaintiff's
request for review. (Tr. 1-5); Wilson v. Comm'r of
Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004).
reasons set forth below, the undersigned
RECOMMENDS that plaintiff's motion for
summary judgment be DENIED, that
defendant's motion for summary judgment be
GRANTED, and the findings of the
Commissioner be AFFIRMED.
born July 7, 1982, was 24 years old on the alleged disability
onset date. (Tr. 30). His date last insured is December 31,
2007. (Tr. 14). He attended school through 11th grade (Tr.
382) and has past relevant work as a machine feeder,
groundskeeper, child monitor/babysitter, and odd job worker.
(Tr. 30). Humphries was injured in a car accident in April
2006, which resulted in hip replacement surgery. He was
involved in a second car accident in 2009. (Tr. 15, 24).
applied the five-step disability analysis and found at step
one that Humphries had not engaged in substantial gainful
activity since April 1, 2007, the alleged onset date. (Tr.
14). At step two, the ALJ found that Humphries' left
acetabular fracture status post open reduction internal
fixation, history of L5 plexopathy, morbid obesity, history
of traumatic brain injury with loss of consciousness,
diabetes mellitus type II, and generalized anxiety disorder
were “severe” within the meaning of the second
sequential step. However, at step three, the ALJ found no
evidence that plaintiff's impairments singly or in
combination met or medically equaled one of the listings in
the regulations. (Tr. 15-18).
the ALJ assessed plaintiff's residual functional capacity
(“RFC”) as follows:
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform sedentary work as defined in
20 CFR 404.1567(a) and 416.967(a) except maximum lifting and
carrying of 5 pounds in one hand; maximum standing of 15
minutes at a time; not able to climb ladders, ropes or
scaffolds; not able to climb ramps or stairs; only
occasionally able to balance or stoop; not capable of
kneeling or crawling; only incidentally being able to crouch,
meaning one time per hour for one minute; no manipulative,
visual or communication limitations; must avoid and cannot be
exposed to hazards such as unprotected heights, fast moving,
sharp surfaces or objects or fast moving, heavy machinery;
capable of occasional driving; he is limited to unskilled
work with only occasional interaction with the general public
and frequent interaction with coworkers; might be off task
10% of the day in addition to regular breaks and may miss one
day per month for valid medical reasons.
(Tr. 18). At step four, the ALJ found that plaintiff was
unable to perform any past relevant work. (Tr. 30). At step
five, the ALJ denied plaintiff benefits because he found that
there were jobs that exist in significant numbers in the
national economy that plaintiff can perform. (Tr. 31-32).
Plaintiff's Claims of Error
first argument for remand is that the ALJ failed to recontact
the consultative physician for more information pursuant to
20 C.F.R § 404.1512(e)(e). (Dkt. 11, at p. 10). The
consultative physician, Dr. Miller, opined that
Humphries' impairments met Listings 1.03 and 1.04, but
the ALJ rejected that portion of Dr. Miller's opinion.
Humphries contends that the ALJ should have re-contacted Dr.
Miller to give Dr. Miller “the opportunity to address
the ALJ's concerns again.” He contends that the
ALJ's failure to recontact was a “direct
violation” of the regulation. (Id. at p. 11).
Humphries argues that the ALJ did not provide a narrative
discussion of his RFC, nor did he address Humphries'
ability to do work-related activities involving the seven
strength domains: sitting, standing, walking, lifting,
carrying, pushing, and pulling, in violation of SSR 96-8p.
Humphries concludes, based on the lack of narrative
function-by-function discussion, that the RFC is conclusory
and does not comply with SSR 96-8p and SSR 85-15.
(Id. at p. 11-12).
Humphries contends that the ALJ did not comply with SSR 96-6p
because he did not consider consultative examining physician
Dr. Rojas' opinion that Humphries required a walking cane
and did not assign weight to Dr. Rojas' opinion. Instead,
the ALJ noted that the exhibit in which Dr. Rojas'
opinion is found comported with the RFC. However, the ALJ did
not include a limitation to using a cane in the RFC, which
according to plaintiff shows that the ALJ did not determine
whether Humphries needed a cane. (Id. at p. 13).
Humphries argues that the case should be remanded because the
ALJ did not consider his medication side effects. He
testified that his medication caused diarrhea, hard stools,
and drowsiness. The ALJ, however, did not “provide
evidence which refutes Plaintiff's alleged side effects
from his medication” and did not address how his
medications would affect his ability to work. (Id.
at p. 14-15).
Commissioner's Motion for Summary Judgment
Commissioner argues that the ALJ was not required to
recontact consultative physician Dr. Miller before
discounting his opinion on the Listings. The Commissioner
points out that plaintiff does not suggest that he in fact
meets Listing 1.03 or 1.04, but argues only that the ALJ had
a duty to recontact Dr. Miller to give him an opportunity to
address the ALJ's concerns. The Commissioner contends
that the ALJ had no such duty. While plaintiff relies on 20
C.F.R. § 404.1512(e) to support his argument, the duty
to recontact was eliminated from this regulation in March
2012. Under the new rule, the decision to recontact a
treating source is a matter of the ALJ's discretion.
(Dkt. 12, at p. 4-5). Further, even if the ALJ had a duty ...