United States District Court, W.D. Michigan, Southern Division
Deborah K. Stamm, Plaintiff,
Commissioner of Social Security, Defendant.
Honorable Janet T. Neff Judge.
REPORT AND RECOMMENDATION
Phillip J. Green United States Magistrate Judge.
a social security action brought under 42 U.S.C. §§
405(g), 1383(c)(3), seeking review of a final decision of the
Commissioner of Social Security, finding that plaintiff was
not entitled to disability insurance benefits (DIB) and
supplemental security income (SSI) benefits. On July 8, 2015,
plaintiff filed her application for DIB benefits, and on July
1, 2015, she filed her application for SSI benefits. She
alleged a February 24, 2015, onset of disability. (ECF No.
7-5, PageID.194, 201). Plaintiff's claims were denied on
initial review. (ECF No. 7-4, PageID.129-44). On September
14, 2017, plaintiff received a hearing before the ALJ. (ECF
No. 7-2, PageID.66-100). The ALJ issued his decision on
February 27, 2018, finding that plaintiff was not disabled.
(Op., ECF No. 7-2, PageID.48-60). On October 19, 2018, the
Appeals Council denied review (ECF No. 7-2, PageID.37-39),
rendering the ALJ's decision the Commissioner's final
timely filed a complaint seeking judicial review of the
Commissioner's decision. Plaintiff argues that the
Commissioner's decision should be overturned on the
I. The ALJ failed to follow SSR 96-3p when he did not
consider plaintiff's diabetes and gastroparesis
II. The ALJ's residual functional capacity finding is not
supported by substantial evidence.
A. The ALJ did not include the effects of all plaintiff's
impairments as required by SSR 96-8p.
B. The ALJ relied on the opinion of a non-examining physician
rendered before plaintiff developed gastroparesis,
osteoarthritis, and other impairments.
C. The ALJ's findings regarding the severity of
plaintiff's symptoms are contrary to SSR 16-3p and are
not supported by substantial evidence.
(Plf. Brief, iii, ECF No. 11, PageID.1287). For the reasons
set forth herein, I recommend that the Court affirm the
reviewing the grant or denial of social security benefits,
this court is to determine whether the Commissioner's
findings are supported by substantial evidence and whether
the Commissioner correctly applied the law. See Elam ex
rel. Golay v. Commissioner, 348 F.3d 124, 125 (6th Cir.
2003); Buxton v. Halter, 246 F.3d 762, 772 (6th Cir.
2001). Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). The scope of the
court's review is limited. Buxton, 246 F.3d at
772. The court does not review the evidence de novo, resolve
conflicts in evidence, or make credibility determinations.
See Ulman v. Commissioner, 693 F.3d 709, 713 (6th
Cir. 2012); Walters v. Commissioner, 127 F.3d 525,
528 (6th Cir. 1997). “The findings of the Commissioner
of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive[.]” 42 U.S.C.
§ 405(g); see McClanahan v. Commissioner, 474
F.3d 830, 833 (6th Cir. 2006). “The findings of the
Commissioner are not subject to reversal merely because there
exists in the record substantial evidence to support a
different conclusion. . . . This is so because there is a
‘zone of choice' within which the Commissioner can
act without fear of court interference.”
Buxton, 246 F.3d at 772-73; see Gayheart v.
Commissioner, 710 F.3d 365, 374 (6th Cir. 2013)
(“A reviewing court will affirm the Commissioner's
decision if it is based on substantial evidence, even if
substantial evidence would have supported the opposite
found that plaintiff met the disability insured requirements
of the Social Security Act through March 31, 2017. (Op., 3,
ECF No. 7-2, PageID.50). Plaintiff had not engaged in
substantial gainful activity on or after February 24, 2015,
the alleged onset date. (Id.). Plaintiff had the
following severe impairments: “obesity, migraines,
diabetes mellitus, essential hypertension, adhesive
capsulitis of the right shoulder status post arthroscopy and
rotator cuff repair, and osteoarthritis of the knees with
bilateral knee replacement.” (Id. at 4,
PageID.51). Plaintiff did not have an impairment or
combination of impairments that met or equaled a ...