United States District Court, W.D. Michigan, Northern Division
REPORT AND RECOMMENDATION
ROBERT J. JONKER U.S. DISTRICT JUDGE
Toby Terry LaPointe was injured in the 1990s while conducting
a training exercise as a U.S. Marine. LaPointe fell while
rappelling from a helicopter. LaPointe states that he uses
his wheelchair to limit walking and his complex back brace to
limit movement and pain. LaPointe describes his pain as
constant, sharp, and dull. (ECF No. 6-2, PageID.40.)
was determined to be disabled by the Veterans Administration.
(Id. at PageID.62.) After leaving the U.S. Marine
Corps, LaPointe attended college for three years before
accepting employment as an officer with the U.S. Customs and
Border Protection. (Id. at PageID.66-67.) LaPointe
retired due to his disability on September 20, 2014.
(Id. at PageID.64.)
filed an application for disability insurance benefits
alleging that he became disabled on September 7, 2014. The
Social Security Administration rejected his claim and
LaPointe requested a hearing. The Administrative Law Judge
(ALJ) found that LaPointe could perform jobs that existed in
significant numbers in the national economy given
LaPointe's residual functional capacity
(“RFC”), and therefore concluded that LaPointe
was not disabled under the Social Security Act. The Appeals
Council denied LaPointe's request for review.
appeal, LaPointe argues that the ALJ (1) failed to consider
Listing 11.08(B) regarding spinal cord disorders, and (2)
failed to afford the proper weight to Dr. Kevin Lawson's
opinion, in violation of the treating physician rule. Upon
review of the record, I respectfully recommend that the Court
affirm the decision of the ALJ and dismiss this case.
of an ALJ's decision is limited to two issues: (1)
“whether the ALJ applied the correct legal standards,
” and (2) “whether the findings of the ALJ are
supported by substantial evidence.” Winslow v.
Comm'r of Soc. Sec., 566 Fed.Appx. 418, 420 (6th
Cir. 2014) (quoting Blakley v. Comm'r of Soc.
Sec., 581 F.3d 399, 405 (6th Cir. 2009)); see
also 42 U.S.C. § 405(g). The Court may not conduct
a de novo review of the case, resolve evidentiary
conflicts, or decide questions of credibility. Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984). It is the
Commissioner who is charged with finding the facts relevant
to an application for disability benefits, and the
Commissioner's findings are conclusive provided they are
supported by substantial evidence. 42 U.S.C. § 405(g).
evidence is defined as more than a mere scintilla of evidence
but “such relevant evidence that a reasonable mind
might accept as adequate to support a conclusion.”
Jones v. Sec'y of Health & Human Servs., 945
F.2d 1365, 1369 (6th Cir. 1991). In determining the
substantiality of the evidence, the Court must consider the
evidence on the record as a whole, and take into account
whatever evidence in the record fairly detracts from its
weight. Richardson v. Sec'y of Health & Human
Servs., 735 F.2d 962, 963 (6th Cir. 1984) (citations
omitted). The substantial evidence standard presupposes the
existence of a zone within which the decision maker can
properly rule either way, without judicial interference.
Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)
(citation omitted). This standard affords to the
administrative decision maker considerable latitude, and
indicates that a decision supported by substantial evidence
will not be reversed simply because the evidence would have
supported a contrary decision. Bogle v. Sullivan,
998 F.2d 342, 347 (6th Cir. 1993).
applied for Social Security disability insurance benefits on
September 7, 2014, the day he alleges he became disabled.
(ECF No. 6-5, PageID.182-83.) LaPointe's application was
initially denied, (ECF No. 6-4, PageID.127-30), and he
subsequently requested an administrative hearing before an
ALJ. (Id. at PageID.133-34). The ALJ held a hearing
on February 27, 2017, at which time LaPointe was represented
by counsel. (ECF No. 6-2, PageID.54-111.)
October 3, 2017, the ALJ affirmed the Social Security
Administration's initial denial of benefits.
(Id. at PageID.35-45.) The ALJ's decision became
the agency's final decision on April 25, 2018, when the
Appeals Council denied LaPointe's request for review.
(Id. at PageID.21-25.) LaPointe then filed this
appeal, seeking judicial review of the agency's final
decision denying his request for disability benefits.
was born on June 10, 1970. (ECF No. 6-3, PageID.113.)
LaPointe has a high school education and attended college for
three years. (ECF No. 6-6, PageID.201.) LaPointe was employed
as a U.S. Customs Officer until he retired due to his
disability. (Id. at PageID.254.)
the 1990s, Lapointe was a U.S. Marine. He was injured in a
rappelling accident that occurred during a training exercise.
(ECF No. 6-2, PageID.73.) LaPointe broke two vertebrae and
was medically discharged from the U.S. Marine Corps.
(Id. at PageID.68.)
2008, LaPointe had kyphoplasty surgery to remove a blood clot
in his spine. (Id. at PageID.73-74.) An MRI on
August 13, 2011, showed normal vertebral body height and
alignment, and stable middle multilevel thoracic degenerative
disease, with normal disc herniation. (ECF No. 6-6,
PageID.261.) Post kyphoplasty surgery, he appeared stable
with an ill-defined altered signal in the right aspect of the
spinal canal at the T7 level consistent with a small amount
of extruded cement. (Id.) The MRI showed
degenerative loss of disc signal at L5-S1 and small
broad-based central disc herniation mildly effacing ventral
epidural fat consistent with a prior study. (Id. at
PageID.263.) At L4-5, the MRI revealed mild central canal
stenosis and bilateral neural foraminal stenosis with small
focal central disc herniation and a stable mildly effacing
ventral thecal sac. (Id.)
had T5-T11 spinal fusion surgery on September 27, 2012. (ECF
No. 6-7, PageID.271.) On November 12, 2012, LaPointe was
prescribed an external bone growth stimulator. (Id.
Kevin Lawson examined LaPointe on September 9, 2013, due to
spine pain, neck stiffness, and soreness. (ECF No. 6-8,
PageID.514-516.) LaPointe was still working at the time, but
Dr. Lawson noted he would probably retire due to his medical
condition. (Id.) LaPointe was taking hydromorphine
and hydrocodone but was still experiencing frequent
headaches. (Id.) LaPointe was able to walk with a
normal gait. (Id. at PageID.515.)
October 29, 2013, Dr. Lawson noted that LaPointe had not
returned to his normal job duties post-surgery, but was
performing light duty desk work. (Id. at
PageID.517.) LaPointe was taking Dilaudid and Norco for pain.
(Id.) LaPointe presented with mild lumbar
degenerative disc disease with a stable thoracic fixation.
(Id. at PageID.517-518.) Dr. Lawson noted that
LaPointe had a normal gait on October 29, and December 9,
2013. (Id. at PageID.518, 521.) On December 9, 2013,
LaPointe received a corticosteroid injection in his right
shoulder. (Id. at PageID.521-523.)
January 27, 2014, Dr. Lawson noted that LaPointe was well
coordinated with a normal gait and was walking normally
during his office visit. (Id. at PageID.524.) On
March 27, and May 29, 2014, Nurse Practitioner Carol B.
Richwine noted that LaPointe presented with a normal gait but
reportedly arose slowly from a sitting position.
(Id. at PageID.527, 529.)
examination was stable on July 14, 2014, but Dr. Lawson noted
a broken screw in the thoracic hardware. (Id. at
PageID.531.) On July 15, 2014, LaPointe stated that he
“could hardly stand up” because of the intense
pain and he was awaiting retirement paperwork from the
federal government. (Id. at PageID.533.) Nurse
Practitioner Richwine noted that LaPointe was prescribed
Flexeril and Prednisone. (Id. at PageID.535.)
Lawson examined LaPointe on September 22, 2014, and noted
that the dorsal column stimulator trial helped with thoracic
pain but not with all of his discomfort. (ECF No. 6-6,
PageID.239.) Dr. Lawson reported that he observed LaPointe
walk a modest distance with a normal gait. (ECF No. 6-8,
PageID.539.) On October 15, 2014, LaPointe was examined by
Nurse Practitioner Terry Malloy for left shoulder pain. (ECF
No. 6-9, PageID.985-987.)
Practitioner Richwine noted that, on January 27, 2015,
LaPointe had a normal gait and was observed rising slowly
from a sitting position to standing. (ECF No. 6-8,
PageID.689.) LaPointe underwent surgery on February 10, 2015,
to remove thoracic hardware and for placement of a
neurostimulator device. (Id. at PageID.701,
711-714.) LaPointe presented with pain over the incision area
on February 25, 2015. (ECF No. 6-9, PageID.753.) Dr. Lawson
instructed LaPointe to use a walker for two to three more
weeks. (Id.) At his six-week post-operative
examination on March 24, 2015, LaPointe reported fatigue and
afternoon nausea. (Id. at PageID.763.) LaPointe
reported that his right chest and shoulder pain was