Jacob v. Comm'r of Soc. Sec. Admin.

DAMEON L. JACOB, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

Case No. 2:19-cv-10435

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

February 11, 2020

District Judge Stephen J. Murphy

Magistrate Judge Anthony P. Patti

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF No. 12), GRANT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF No. 15) and AFFIRM THE COMMISSIONER'S DECISION

I. RECOMMENDATION: For the reasons that follow, it is RECOMMENDED that the Court DENY Plaintiff's motion for summary judgment (ECF No. 12), GRANT Defendant's motion for summary judgment (ECF No. 15) and AFFIRM the Commissioner's decision.

II. REPORT

Plaintiff, Dameon L. Jacob, brings this action under 42 U.S.C. § 405(g) 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 (ECF No. 12), the Commissioner's cross-motion for summary judgment (ECF No. 15), Plaintiff's reply (ECF No. 16) and the administrative record (ECF No. 9).

A. Background and Administrative History

Plaintiff alleges his disability began on July 13, 2015, at the age of 41. (R. at 194.) In his disability report, he lists degenerative disc disease and scoliosis as limiting his ability to work. (R. at 197.) His application was denied on June 29, 2016. (R. at 63-70.)

Plaintiff requested a hearing by an Administrative Law Judge ("ALJ"). (R. at 75-76.) On May 16, 2018, ALJ John Dodson held a hearing, at which Plaintiff and a vocational expert (VE), Larry S. Stokes, testified.¹ (R. at 29-52.) On June 27, 2018, ALJ Dodson issued an opinion, which determined that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 7-21.)

Plaintiff submitted a request for review of the hearing decision/order. (R. at 153-57.) However, on January 11, 2019, the Appeals Council denied Plaintiff's request for review. (R. at 1-6.) Thus, ALJ Dodson's decision became the Commissioner's final decision.

Plaintiff timely commenced the instant action on February 13, 2019. (ECF No. 1.)

B. Plaintiff's Medical History

The administrative record contains approximately 134 pages of medical records, which were available to the ALJ at the time of his June 27, 2018 decision. (R. at 20-21, 266-400 [Exhibits 1F-9F].) 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 July 13, 2015, the alleged onset date. (R. at 12.) At Step 2, the ALJ found that Plaintiff had the following severe impairments: degenerative disc disease and scoliosis. (R. at 13.) 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. (R. at 13.) Between Steps 3 and 4 of the sequential process, the ALJ evaluated Plaintiff's residual functional capacity ("RFC")² and determined that Plaintiff had the RFC:

. . . to perform sedentary work. except no ropes, ladders, or scaffolds; occasional remaining posturals; sit/stand option 2 times per hour; occasional overheard reaching bilaterally; no concentrated exposure to hazards; use of assistive device to ambulate.

(R. at 13-15.) At Step 4, the ALJ determined that Plaintiff was unable to perform any past relevant work. (R. at 15.) At Step 5, considering Plaintiff's age, education, work experience, and RFC, the ALJ determined that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform, such as surveillance system monitor, telephone info clerk, and document preparer. (R. at 16.) The ALJ therefore concluded that Plaintiff had not been under a disability, as defined in the Social Security Act, since July 13, 2015. (R. at 16.)

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. 2009) (quoting Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. § 405(g) ("The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . ."). Under this standard, "[s]ubstantial evidence is defined as 'more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonablemind 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 (6th Cir. 2009) (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, in his summary judgment motion and reply brief, that the ALJ's decision is marred by legal error and unsupported by substantial evidence because: (1) the ALJ failed to properly weigh the opinions of Plaintiff's treating physician, Dr. Preston Thomas, and consultative examiner, Dr. Leonidas Rojas; (2) the ALJ erred at Step 2 by failing to find Plaintiff's cervical and left shoulder impairments severe; and (3) the "ALJ erred in failing to specify, in both his hypothetical questions and his [RFC] determination, the frequency with which claimant needed to alternate sitting and standing." (ECF No. 12, PageID.449-460; ECF No. 16, PageID.498-503.) The Commissioner opposes Plaintiff's motion, asserting that substantial evidence supports the ALJ's decision. (ECF No. 15, PageID.478-497.) I will address each argument in turn.

1. Substantial evidence supports the weight afforded to the opinions of Dr. Thomas and Dr. Rojas

a. Plaintiff's medical background

In his disability report, Plaintiff listed degenerative disc disease and scoliosis as limiting his ability to work. (R. at 197.) As the result of his degenerative disc disease, Plaintiff underwent spinal fusion surgery of the L4-L5 disc in November 2015. (R. at 35-36, 323-332 [Exhibit 3F].)

b. Dr. Thomas's treatment and findings

Dr. Thomas was Plaintiff's treating physician at Drayton Clinic. (Exhibits 6F, 7F, 8F, 9F.) On August 25, 2016, he completed both a medical source statement (R. at 369-373 [Exhibit 6F]) and a medical questionnaire (R. at 362-368 [Exhibit 7F]) on Plaintiff's behalf. In the medical source statement, Dr. Thomas indicated that he had been treating Plaintiff, diagnosed with scoliosis, back pain and lumbar radiculopathy for three years, and that Plaintiff suffered from constant disabling pain which had not been relieved by his recent surgery. (R. at 369 [Exhibit 6F].) Further, Dr. Thomas stated that Plaintiff had significant limitations with reaching overhead, could only occasionally hold his head in a static position, needed an ambulatory aid for walking, and could stand for two hours in an eight-hour day. (R. at 370-371 [Exhibit 6F].) In the medical questionnaire, Dr. Thomas listed Plaintiff's diagnoses as chronic back pain and "s/p surgery," and opined that Plaintiff is totally disabled and physically unable to work. (R. at 374-375 [Exhibit 7F].)

c. Dr. Rojas's findings

Dr. Rojas conducted a consultative examination of Plaintiff on June 20, 2016, and found that following Plaintiff's November 2015 fusion surgery:

He has less back pain and less numbness but he still is not able to walk farther than half a block or just to the car. He is able to climb stairs slowly. Since his surgery he has been using a cane and he continues to take the same amount of pain medication. The back pain is aggravated by sitting, standing, walking or attempting to bend. For about a year also he has had tightness on the left side of the neck.

[A]nd he has been found to have DDD on the cervical spine, with a "pinched nerve" on the left side.

(R. at 362 [Exhibit 5F].) Further, Dr. Rojas listed Plaintiff's diagnoses as: (1) s/p fusion L4-L5 with left-sided radiculopathy, and (2) DDD of the cervical spine with left-sided radiculopathy, and stated that Plaintiff got around with a cane. (R. at 363 [Exhibit 5F].)

d. The ALJ gave Dr. Thomas's opinion "little weight" and Dr. Rojas's opinion "limited weight"

The ALJ...