United States District Court, E.D. Michigan, Southern Division
DANIEL J. O'BRIEN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.
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
...