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