Anderson v. Commissioner of Social Security Administration

          Laurie J. Michelson, District Judge

          REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (DE 13), GRANT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DE 15) AND AFFIRM THE COMMISSIONER'S DECISION

          ANTHONY P. PATTI, UNITED STATES MAGISTRATE JUDGE

         I. RECOMMENDATION:

         For the reasons that follow, it is RECOMMENDED that the Court DENY Plaintiff's motion for summary judgment (DE 13), GRANT Defendant's motion for summary judgment (DE 15), and AFFIRM the Commissioner's decision.

         II. REPORT

         Plaintiff, James Michael Anderson, brings this action under 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his application for disability insurance (DI) benefits. This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's motion for summary judgment (DE 13), the Commissioner's cross-motion for summary judgment (DE 15) and the administrative record (DE 11).

         A. Background and Administrative History

         Plaintiff alleges his disability began on December 9, 2015, at the age of 46. (R. at 165.) Plaintiff amended his alleged onset date to December 10, 2015. (R. at 35.) In his disability report, he lists bipolar disorder, depression, and anxiety as limiting his ability to work. (R. at 198.) His application was denied in August 8, 2016. (R. at 86.)

         Plaintiff requested a hearing by an Administrative Law Judge (“ALJ”). (R. at 111-112.) On March 13, 2018, ALJ Manh H. Nguyen held a hearing, at which Plaintiff and a vocational expert (VE), Amelia L. Shelton, testified. (R. at 30-51.) On April 3, 2018, ALJ Nguyen issued an opinion, which determined that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 13-29.)

         Plaintiff submitted a request for review of the hearing decision/order. (R. at 163-164.) However, on June 8, 2018, the Appeals Council denied Plaintiff's request for review. (R. at 1-6.) Thus, ALJ Nguyen's decision became the Commissioner's final decision.

         Plaintiff timely commenced the instant action on July 26, 2018.

         B. Plaintiff's Medical History

         The administrative record contains approximately 590 pages of medical records, which were available to the ALJ at the time of his April 3, 2018 decision. (R. at 275-865 [Exhibits 1F-7F].) These materials will be discussed in detail, as necessary, below.

         C. The Administrative Decision

         Pursuant to 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), at Step 1 of the sequential evaluation process, the ALJ found that Plaintiff had not engaged in substantial gainful activity since December 9, 2015, the alleged onset date. (R. at 18.) At Step 2, the ALJ found that Plaintiff had the following severe impairments: disc protrusion, impingement and stenosis of the cervical spine, degenerative disc disease of the thoracic spine, dry eye, refractive error, presbyopia, bowel disorder, obesity, bipolar disorder, post-traumatic stress disorder, borderline personality disorder and alcohol and substance abuse disorder. (Id. at 18-19.) At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. (Id. at 19-20.) Between Steps 3 and 4 of the sequential process, the ALJ evaluated Plaintiff's residual functional capacity (“RFC”)^[1] and determined that Plaintiff had the RFC:

. . . to perform medium work…except the claimant can never climb ladders, ropes o[r] scaffolds. The claimant can occasionally climb stairs and ramps, kneel and crawl. The claimant can frequently balance, stoop and crouch. [i.e., exertional limitations] He can never work around hazards such as unprotected heights or unguarded, uncovered moving machinery. [i.e., environmental limitations] The claimant can understand, remember and carry out simple instructions. The claimant can tolerate occasional changes in a routine works [sic] setting. The claimant can make simple work related decisions. The claimant can never deal with the general public but can occasionally deal with supervisors and coworkers. He will be off task ten percent of the workday for restroom breaks. [i.e., mental limitations]

(Id. at 20-22.) At Step 4, the ALJ determined that Plaintiff is capable of performing past relevant work as a cleaner. (Id. at 23.) The ALJ found alternatively, at Step 5, considering Plaintiff's age, education, work experience, and RFC, that there were other jobs that existed in significant numbers in the national economy that Plaintiff could perform, such as marker, packager and assembler of small products. (Id. at 23-24.) The ALJ therefore concluded that Plaintiff had not been under a disability, as defined in the Social Security Act, since December 9, 2015. (Id. at 24.)

         D. Standard of Review

         The District Court has jurisdiction to review the Commissioner's final administrative decision pursuant to 42 U.S.C. § 405(g). When reviewing a case under the Social Security Act, the Court “must affirm the Commissioner's decision if it ‘is supported by substantial evidence and was made pursuant to proper legal standards.'” Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. at 2009) (quoting Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. at 2007)); see also 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is defined as ‘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, 486 F.3d at 241 (quoting Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). In deciding whether substantial evidence supports the ALJ's decision, the court does “not try the case de novo, resolve conflicts in evidence or decide questions of credibility.” Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Rogers, 486 F.3d at 247 (“It is of course for the ALJ, and not the reviewing court, to evaluate the credibility of witnesses, including that of the claimant.”).

         Although the substantial evidence standard is deferential, it is not trivial. The Court must “‘take into account whatever in the record fairly detracts from [the] weight'” of the Commissioner's decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial evidence supports the ALJ's decision, this Court defers to that finding ‘even if there is substantial evidence in the record that would have supported an opposite conclusion.'” Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). Finally, even if the ALJ's decision meets the substantial evidence standard, “‘a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.'” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).

         E. Analysis

         Plaintiff alleges two claims of error: (1) the ALJ failed to obtain an expert medical opinion on the issue of medical equivalency for Listing 1.04; and (2) the ALJ violated the procedural aspect of the treating physician rule in evaluating the medical source opinion of Dr. Kathleen Phelps. (DE 13 at 9-16.) The Commissioner responds that substantial evidence supports (1) the ALJ's finding that Plaintiff's impairments did not medically equal Listing 1.04, and (2) the ALJ's assessment of the medical source opinion from Plaintiff's psychiatrist, Dr. Phelps. (DE 15 at 9-25.)

         1. Plaintiff's claim of error regarding the ALJ's Step 3 finding fails

         a. The absence of a medical opinion on the issue of equivalency does not defeat the ALJ's Step 3 finding

         Plaintiff contends that the ALJ erred by failing to obtain an expert medical opinion regarding medical equivalency at Step 3 of the sequential evaluation, with respect to Listing 1.04. (DE 13 at 10-12.) At Step 3 of the sequential analysis, the plaintiff bears the burden of establishing that his impairments meet or medically equal a listed impairment. See Bingaman v. Comm'r of Soc. Sec., 186 Fed.Appx. 642, 644 (6th Cir. 2006). Plaintiff does not challenge the ALJ's findings that he does not meet the requirements of any Listing, and thus any such argument is waived. See Kennedy v. Comm'r of Soc. Sec., 87 Fed.Appx. 464, 466 (6th Cir. 2003) (undeveloped claims are waived). “When a claimant has a listed impairment but does not meet the criteria, an ALJ can find that the impairment is ‘medically equivalent' to the listing if the claimant has ‘other findings ...