United States District Court, E.D. Michigan, Southern Division
J. TARNOW DISTRICT JUDGE
REPORT AND RECOMMENDATION ON CROSS-MOTIONS FOR
SUMMARY JUDGMENT (R. 12, 13)
PATRICIA T. MORRIS UNITED STATES MAGISTRATE JUDGE
light of the entire record in this case, I suggest that
substantial evidence does not support the Commissioner's
determination that Plaintiff is not disabled. Accordingly,
IT IS RECOMMENDED that Plaintiff's
Motion for Summary Judgment, (R. 12), be
GRANTED, the Commissioner's Motion for
Summary Judgment, (R. 13), be DENIED, and
this case be REMANDED for further
Introduction and Procedural History
an action for judicial review of a final decision by the
Commissioner of Social Security denying Plaintiff Jerome
Morris's claim for Disability Insurance Benefits (DIB)
under Title II, 42 U.S.C. § 401 et seq. (R. 1).
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. (R. 2).
Currently before the court are Plaintiff's and
Defendant's cross-motions for summary judgment (R. 12,
13). Plaintiff has also filed a response to Defendant's
motion. (R. 14).
filed his application for DIB on May 14, 2015,  alleging onset on
April 20, 2014. (R. 10 at PageID.294-300). His claim was
denied at the initial level on September 22, 2015.
(Id. at PageID.180). After an administrative hearing
was held at Plaintiff's request, (id. at
PageID.124-165), Administrative Law Judge (ALJ) Lawrence E.
Blatnik issued a decision finding that Plaintiff had not been
under a disability from his alleged onset date through the
date of the decision, August 16, 2017, (id. at
PageID.100-123). The Appeals Council denied Plaintiff's
request for review. (Id. at
PageID.42-48). This action followed. (R. 1).
Standard of Review
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 to determining solely 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 Fed.Appx. 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).
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
Framework for Disability Determinations
the Social Security Act, “DIB and SSI are available
only for those who have 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. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); 20
C.F.R. § 416.905(a) (SSI). 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, 416.920. 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 her past relevant
work.” Jones v. Comm'r of Soc. Sec., 336
F.3d 469, 474 (6th Cir. 2003). A claimant must establish a
medically determinable physical or mental impairment
(expected to last at least twelve months or result in death)
that rendered him or her unable to engage in substantial
gainful activity. 42 U.S.C. § 423(d)(1)(A). 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 [residual functional
capacity] and considering relevant vocational factors.”
Rogers, 486 F.3d at 241 (citing 20 C.F.R.
§§ 416.920(a)(4)(v), (g)).
the five-step sequential analysis, the ALJ found Plaintiff
had not been under a disability from the alleged onset date
of April 20, 2014, through the date of the decision, August
16, 2017. (R. 10 at PageID.119). At step one, the ALJ found
that Plaintiff had not engaged in substantial gainful
activity during the relevant period. (Id. at
PageID.105). Next, the ALJ determined Plaintiff had the
following severe impairments: degenerative disc disease of
the lumbar spine, status post lumbar fusion; peripheral
arterial disease, status post femoral popliteal bypass;
history of deep vein thrombosis with corrective surgery;
osteoarthritis; degenerative joint disease/tendinosis of the
right shoulder; and an adjustment disorder. (Id. at
PageID.106). The ALJ found that Plaintiff's plantar
fasciitis, hypertension, hyperlipidemia, obesity, and alcohol
use were not severe impairments, and he had no medically
determinable substance use disorder. (Id. at
PageID.106-107). He did not have an impairment or combination
of impairments that met or medically equaled the severity of
a listed impairment. (Id. at PageID.107-110).
proceeding further, the ALJ found Plaintiff had the RFC to
perform light work as defined in 20 C.F.R. §
can lift, carry, push and pull 20 pounds occasionally and ten
pounds frequently. He can sit for six hours, with a need to
alternate to standing for three to five minutes after every
20 to 30 minutes of sitting; and can stand and walk for six
hours, with a need to alternate to sitting for three to five
minutes after every 20 to 30 minutes of standing or walking.
The claimant is limited to occasional reaching overhead and
frequent reaching below head level with the right upper
extremity. He can frequently handle and finger with both
hands. The claimant can frequently climb ramps and stairs;
never climb ladders, ropes, or scaffolds; occasionally stoop
and crouch; and frequently balance, kneel, and crawl. He can
tolerate occasional exposure to vibration. In addition, the
claimant can perform simple, routine[, ] and repetitive
(Id. at PageID.110). At steps four and five, the ALJ
concluded that Plaintiff was unable to perform any of his
past relevant work, but that jobs he could perform existed in
significant numbers in the national economy-for example,
office helper (180, 000 jobs nationally), laundry worker (30,
000 jobs nationally), and cashier (800, 000 jobs nationally).
(Id. at PageID.117-19). Thus, the ALJ determined
that Plaintiff had not been under a disability as defined in
the Social Security Act during the relevant time.
(Id. at PageID.119).
thoroughly reviewed the medical record. In lieu of
summarizing Plaintiff's medical history here, I will
reference and provide citations to the record as necessary in
my discussion of the parties' arguments.
Application Reports and Administrative Hearing
Plaintiff's Function Report
completed a function report on June 15, 2015. (R. 10 at
PageID.322-29). In it, Plaintiff explained that he was in
constant pain-his back, legs, and feet hurt; his legs and
feet swelled; and his knees hurt when he stood, walked, or
sat. (Id. at PageID.322). “It hurts to stand,
walk, sit, drive, lay, bend, twist, cough, or sneeze.”
(Id.). From the time he woke up until he went to
bed, he did “[n]othing but try to deal with the
pain.” (Id. at PageID.323). Because his sleep
was also troubled by pain, he got up around noon and took a
pain pill, which made him “tired but still in
onset, Plaintiff had been able to work, play sports,
socialize, worship, and have “relationships.”
(Id.). Now he suffered from constant pain in his
back, legs, knees, and feet. (Id.). Many aspects of
personal care caused him pain: it hurt to bend to put on his
pants, shoes, and socks; it hurt to bend, twist, and lift his
feet during bathing or showering; and it hurt too much to
reach, stand, and twist as necessary to shave his head.
(Id.). Using the toilet also caused him discomfort,
as bending or squatting hurt, his feet would go to sleep, and
he had “to strain due to the pain pills which causes
blood in my stool.” (Id.).
week he prepared his own meals, which consisted of TV
dinners, hamburgers, and chips. (Id. at PageID.324).
Making food took him several hours because he could not stand
long; he had to sit on a stool near the stove to cook a
hamburger. (Id.). He could no longer grill.
(Id.). And sometimes he was in too much pain to eat.
housework, he was able to load the dishwasher or washing
machine-taking about 30 minutes to do each chore, once a
week-but then his back, leg, and foot pain forced him to sit
down. (Id.). He could fold clothes while sitting.
(Id.). His daughter sometimes called and asked if he
had done his dishes “because she knows [he] won't
ask for help.” (Id.). Meanwhile, his son did
the yardwork and “lift[ed] anything heavy.”
(Id. at PageID.325).
going out, Plaintiff could drive and go out alone, though
when he drove “the smallest things upset [him]
now.” (Id. at PageID.325, 327). He shopped for
groceries and household goods for about 45 minutes every
couple of weeks, “mov[ing] slow and stiff.”
(Id. at PageID.325). He remained able to pay bills,
count change, handle a savings account, and use a checkbook
or money orders. (Id. at PageID.326). Before onset,
he had enjoyed going to the gym three to four days a week,
bowling in two leagues, golfing, fishing, shooting, and
dancing. (Id.). Now pain prevented him from doing
any of his hobbies. (Id.).
stayed at home and did not spend time with other people,
which hurt “both physically and mentally.”
(Id.). Although he used to be an usher at his
church, pain now kept him from standing during the service.
(Id. at PageID.327). Further, he had problems
getting along with family “due to [his] finances from
not working.” (Id.). He felt sad most of the
time and did not want to be with others. (Id.). And
he said he did not get along well with authority figures,
explaining, “I don't like to be asked foolish
questions by authority figures.” (Id. at
PageID.328). During his time working at the Michigan
Department of Corrections, his issues getting along with
others had earned him a demotion of “two levels”
in 2009 and “several disciplinary actions”
between 2010 and 2012. (Id.).
conditions affected his abilities to lift, squat, bend,
stand, reach, walk, sit, kneel, hear, climb stairs, see,
remember, complete tasks, concentrate, and get along with
others. (Id. at PageID.327). He could lift five
pounds without pain, and walk for about two minutes before
pain set in. (Id.). He could walk about four minutes
at a time, but in “serious pain, ” before needing
to stop and rest for a half hour. (Id.). His
attention span was 20 minutes. (Id.). He could
follow written instructions after reading them several times,
and spoken instructions “as long as it is said loud
he was “in so much pain all the time, ” Plaintiff
did not handle stress or changes in routine well.
(Id. at PageID.328). He was afraid of dying from