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Humphries v. Commissioner of Social Security

United States District Court, E.D. Michigan, Southern Division

June 25, 2019

HARRISON HUMPHRIES, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          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

         I. PROCEDURAL HISTORY

         A. Proceedings in this Court

         On July 6, 2018, plaintiff Harrison Humphries filed the instant suit. (Dkt. 1). Pursuant to 28 U.S.C. § 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).

         B. Administrative Proceedings

         Humphries 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).[1] 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).

         For the 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.

         II. FACTUAL BACKGROUND

         A. ALJ Findings

         Humphries, 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).

         The ALJ 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).

         Thereafter, 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).

         B. Plaintiff's Claims of Error

         Humphries' 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).

         Next, 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).

         Third, 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).

         Finally, 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).

         C. Commissioner's Motion for Summary Judgment

         The 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 ...


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