O'Brien v. Commissioner of Social Security

          R. Steven Whalen Magistrate Judge

          OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, AFFIRMING THE FINDINGS OF THE COMMISSIONER, AND DISMISSING COMPLAINT

          DAVID M. LAWSON UNITED STATES DISTRICT JUDGE.

         Plaintiff Daniel J. O'Brien filed the present action seeking review of the Commissioner's decision denying his claim for disability benefits under Title II of the Social Security Act. The case was referred to United States Magistrate Judge R. Steven Whalen under 28 U.S.C. § 636(b)(1)(B) and E.D. Mich. LR 72.1(b)(3). Thereafter, the plaintiff filed a motion for summary judgment to reverse the decision of the Commissioner and remand the case for an award of benefits or for further consideration by the administrative law judge. The defendant filed a motion for summary judgment requesting affirmance of the decision of the Commissioner. Magistrate Judge Whalen filed a report on July 30, 2019 recommending that the defendant's motion for summary judgment be granted, the plaintiff's motion for summary judgment be denied, and the decision of the Commissioner be affirmed. The plaintiff filed timely objections, the defendant filed a response, and the plaintiff replied to that response. The matter is now before the Court.

         The plaintiff, who is now 60 years old, filed his application for disability benefits on February 17, 2015, when he was 56. He completed high school and previously worked as a shipping and receiving agent. He alleges that he is disabled as a result of sciatica, Barrett's esophagus, ulcers of the esophagus, bilateral knee pain, depression, ankylosing spondylitis, right hand swelling, and neck, arm and hand pain and numbness. In his claim for benefits, the plaintiff alleged a disability onset date of April 9, 2009, which coincided with the shutdown of the General Motors plant where he had been employed. He has sufficient quarters of coverage to remain insured through September 30, 2015, and therefore must establish disability on or before that date.

         The plaintiff's application for disability benefits was denied initially on July 7, 2015. The plaintiff timely filed a request for an administrative hearing, and on April 4, 2017, the claimant appeared before ALJ Lawrence E. Blatnik. On May 24, 2017, ALJ Blatnik issued a written decision in which he found that the plaintiff was not disabled. On March 23, 2018, the Appeals Council denied the plaintiff's request for review of the ALJ's decision. On May 17, 2018, the plaintiff filed his complaint seeking judicial review of the denial of benefits.

         ALJ Blatnik reached his conclusion that the plaintiff was not disabled by applying the five-step sequential analysis prescribed by the Secretary in 20 C.F.R. §404.1520(a). He found that the plaintiff had not engaged in substantial gainful activity from April 9, 2009 through his date last insured of September 30, 2015 (step one). The plaintiff had done some work for pay during that time, but the earnings did not meet the presumptive levels to amount to substantial gainful activity. The plaintiff suffered from degenerative joint disease with a meniscal tear in the left knee and degenerative disc disease of the cervical and lumbar spine, impairments which were “severe” within the meaning of the Social Security Act (step two). The ALJ acknowledged that the plaintiff had been diagnosed with depression and substance abuse, but he found that those impairments were not severe. The ALJ also determined that none of those impairments alone or in combination met or equaled a listing in the regulations, considering Listings 1.02 (major dysfunction of a joint) and 1.04 (disorders of the spine) (step three).

         Before proceeding further, the ALJ determined that the plaintiff retained the functional capacity (RFC) to perform light work as defined in 20 CFR 404.1567(b), with certain limitations. The ALJ determined that the claimant could lift carry, push or pull 20 pounds occasionally and 10 pounds frequently, he could sit for six hours, stand for six hours, and walk for six hours, and he could occasionally reach overhead with either arm. The ALJ also found that the claimant could frequently handle and finger items with his right hand and was able to climb ramps and stairs occasionally, but he could never climb ladders, ropes, or scaffolds.

         At step four, the ALJ concluded that the plaintiff was able to perform the duties of his past relevant work as a shipping and receiving clerk, assembler, and inspector, which were semi-skilled and unskilled work performed at the light exertional level. Based on that finding, the ALJ did not proceed to the fifth step and concluded that the plaintiff was not disabled within the meaning of the Social Security Act.

         In his motion for summary judgment, the plaintiff argued that the ALJ's ruling was not based on substantial evidence because: (1) no medical expert had evaluated the record to determine if the plaintiff's impairments were equivalent to any listing in the regulations, and for that reason alone the case should be remanded to obtain a medical opinion on that question, (2) the ALJ's RFC evaluation ignored significant record evidence including testimony by the plaintiff about his inability to obtain restful sleep due to his various medical conditions, and MRI scans indicating that the plaintiff's back condition was so severe that it “may well equal Listing 1.04A, ” (3) the ALJ entirely ignored the plaintiff's mental impairments and did not include any assessment of mental limitations in the RFC, (4) the ALJ's decision did not discuss or even acknowledge the lay witness testimony from O'Brien's brother that was in the record, and (5) because the ALJ's questioning of the vocational expert (VE) was based on a flawed and incomplete RFC, the VE's responses did not constitute substantial evidence that the plaintiff could perform all the duties of his past jobs “on a sustained basis, ” particularly where the VE testified that the plaintiff would be disqualified from all of his past jobs if he could not perform his work duties at least eight hours per day for a standard five-day work week, was absent from work more than one day per month, was off task more than 10% of the work day, or was unable to use one of his hands more than occasionally.

         The magistrate judge rejected those positions. The plaintiff filed three objections to the magistrate judge's report and recommendation. The filing of timely objections to a report and recommendation requires the court to “make a de novo determination of those portions of the report or specified findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667 (1980); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This de novo review requires the court to re-examine all of the relevant evidence previously reviewed by the magistrate judge in order to determine whether the recommendation should be accepted, rejected, or modified in whole or in part. 28 U.S.C. § 636(b)(1).

         “The filing of objections provides the district court with the opportunity to consider the specific contentions of the parties and to correct any errors immediately, ” Walters, 638 F.2d at 950, enabling the court “to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute, ” Thomas v. Arn, 474 U.S. 140, 147 (1985). As a result, “‘[o]nly those specific objections to the magistrate's report made to the district court will be preserved for appellate review; making some objections but failing to raise others will not preserve all the objections a party may have.'” McClanahan v. Comm'r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (quoting Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987)).

         A.

         The magistrate judge first found that the plaintiff's medical records adequately supported the finding that the plaintiff's spinal condition did not meet all of the requirements of Listing 1.04A, because the records did not show either nerve root compromise characterized by neurological symptoms or positive straight-leg raising in both the sitting and supine positions, and, moreover, the plaintiff exhibited normal strength in his legs and EMGs of both his legs and arms were negative for neurological abnormalities. He also found that the ALJ's conclusion that the plaintiff's impairments did not equal listing 1.04A was supported by substantial evidence. The magistrate judge rejected the Commissioner's argument that Social Security Ruling (SSR) 17-2p - which exempted the ALJ from the obligation to make a finding of medical equivalency only with the support of a medical opinion - did not apply here because the plaintiff filed his claim before the effective date of the ruling. Therefore, SSR 96-6p governed; that ruling does require a Step-Three finding on medical equivalency to be supported by a medical opinion. But the magistrate judge found that the error was harmless because the plaintiff did not carry his burden on all the elements of that Listing. For instance, the magistrate judge found that the medical reports contradicted the plaintiff's subjective testimony about his inability to engage in physical activities, because it was noted that, after the alleged disability onset date, he had a normal range of motion in his spine, was able to work part-time or intermittently as a cleaner and carpet installer, and was able to shovel snow and make several road trips between Michigan and Colorado, calling into question his testimony that he could not sit for extended periods.

         Objecting to this part of the report, the plaintiff argues that the magistrate judge erred by (1) disregarding the record of an MRI of the plaintiff's lumbar spine from January 8, 2015, which showed a disc osteophyte complex at L5-S1 appearing to contact the extraforaminal right L5 nerve root, noted by the examiner as potentially accounting “for a right-sided L5 distribution radiculopathy, ” which suggests that there was nerve root compromise characterized by neurological symptoms, as required by Listing 1.04A; and (2) substituting the magistrate judge's own ad hoc review of the medical records for an evaluation of the actual conditions noted in the ALJ's decision and his reasoning for the finding that the plaintiff's spinal condition did not meet the listing. The plaintiff also insists that the magistrate judge erred by concluding that remand was not warranted solely ...