United States District Court, W.D. Michigan, Southern Division
Honorable Robert J. Jonker Judge.
REPORT AND RECOMMENDATION
PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE
a social security action brought under 42 U.S.C. §
1383(c)(3), seeking review of a final decision of the
Commissioner of Social Security, finding that plaintiff was
not entitled to supplemental security income (SSI) benefits.
Plaintiff filed her application for SSI benefits on October
23, 2012. On May 25, 2017, plaintiff received a
hearing before the ALJ. (ECF No. 9-4, PageID.159-234). The
ALJ issued his decision on August 18, 2017, finding that
plaintiff was not disabled. (Op., ECF No. 9-3,
PageID.127-51). On October 19, 2018, the Appeals Council
denied review (ECF No. 9-3, PageID.113-16), rendering the
ALJ's decision the Commissioner's final decision.
timely filed a complaint seeking judicial review of the
Commissioner's decision. Plaintiff argues that the
Commissioner's decision should be overturned on the
1. The ALJ's residual functional capacity findings are
inconsistent with his step-3 findings that plaintiff had
moderate limitations in concentration, persistence, or pace.
2. The ALJ violated the treating physician rule in the weight
that he gave to the opinions of Amy Hogue, M.D.
3. The ALJ gave inadequate reasons to accept the opinions
that Jeffrey Andert, Ph.D., expressed in his medical expert
testimony at plaintiff's May 25, 2017, hearing.
4. The ALJ gave inadequate reasons to reject the opinions of
Dale Blum, M.D., a medical consultant, regarding
5. The ALJ's RFC finding is not supported by substantial
6. The ALJ “cherry picked” the record.
7. The ALJ failed to address regional jobs.
(Plf. Brief, 2, ECF No. 15, PageID.1283).
reasons set forth herein, I recommend that the Court affirm
the Commissioner's decision.
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 had not engaged in substantial gainful
activity on or after October 23, 2012, the application date.
(Op., 3, ECF No. 9-3, PageID.129). Plaintiff had the
following severe impairments: “lumbar degenerative disc
disease; status post left shoulder dislocation and
impingement syndrome; left carpal tunnel syndrome;
interstitial cystitis with frequent urinary tract infections;
bipolar II disorder; generalized anxiety disorder; and
borderline personality disorder.” (Id. at 4,
PageID.130). Plaintiff did not have an impairment or
combination of impairments that met or equaled a listing
impairment. (Id. at 5, PageID.131). The ALJ found
that plaintiff retained the residual functional capacity
(RFC) for a range of light work with the following
[T]he claimant can do no greater than frequent forceful
gripping or grasping with her left upper extremity, and she
can do no overhead reaching or work with her left upper
extremity. The claimant can only frequently balance, stoop,
crouch, crawl, and climb ramps or stairs, and she can never
climb ladders, ropes, or scaffolds. Additionally, the
claimant is limited to doing simple, routine, and repetitive
work that involves making simple, work-related decisions and
tolerating no more than occasional workplace changes. The
claimant is also limited to working in a low-stress
environment that involves no fast-pace or production rate
quotas such as assembly line work. However, the claimant can
tolerate typical changes involved with simple work activity.
The claimant can have only brief, superficial contact with
supervisors and coworkers, and she is limited to working in
small, familiar groups of no greater than six to eight
individuals. The claimant can have no contact with the
general public. The claimant also may not perform jobs that
involve caretaking for other people, including children, the
elderly, or the disabled.
(Id. at 8, PageID.134).
found that plaintiff's statements concerning the
intensity, persistence and limiting effects of her symptoms
were not entirely consistent with the medical evidence and
the other evidence of record. (Id. at 17,
PageID.143). Plaintiff has no past relevant work.
(Id. at 23, PageID.149).
considered the testimony of a vocational expert (VE). In
response to a hypothetical question regarding a person of
plaintiff's age with her RFC, education, and work
experience, the vocational expert (VE) testified that there
were approximately 348, 000 jobs that exist in the national
economy that she would be capable of
performing. (ECF No. 9-4, PageID.226-28). The ALJ
found that this constituted a significant number of jobs, and
that plaintiff was not disabled. (Op., 24-25, PageID.150-51).
argues that the ALJ's residual functional capacity
findings are inconsistent with his step-3 findings regarding
plaintiff's moderate limitations in concentration,
persistence or pace. (Plf. ...