Newell v. Comm'r of Soc. Sec.

1

ROBERT ALLEN NEWELL, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

No. 1:23-cv-131

United States District Court, W.D. Michigan, Southern Division

October 5, 2023

REPORT AND RECOMMENDATION

SALLY J. BERENS, U.S. MAGISTRATE JUDGE

This is an action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review a final decision of the Commissioner of Social Security denying Plaintiff's claim for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) under Titles II and XVI of the Social Security Act.

Section 405(g) limits the Court to a review of the administrative record and provides that, if the Commissioner's decision is supported by substantial evidence, it shall be conclusive. The Commissioner has found that Plaintiff is not disabled within the meaning of the Act. Plaintiff seeks review of the Commissioner's decision, arguing that it is not supported by substantial evidence.

Pursuant to 28 U.S.C. § 636(b)(1)(B), authorizing United States Magistrate Judges to submit proposed findings of fact and recommendations for disposition of social security appeals, I recommend that the Commissioner's decision be affirmed.

STANDARD OF REVIEW

The Court's jurisdiction is confined to a review of the Commissioner's decision and of the record made in the administrative hearing process. See Willbanks v Sec'y of Health and Human Servs., 847 F.2d 301, 303 (6th Cir. 1988).

The scope of judicial review in a social security case is limited to determining whether the Commissioner applied the proper legal standards and whether there exists in the record substantial evidence supporting the decision. See Brainard v. Sec'y of Health and Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). The Court may not conduct a de novo review of the case, resolve evidentiary conflicts, or decide questions of credibility. See Garner v Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Fact finding is the Commissioner's province, and those findings are conclusive provided substantial evidence supports them. See 42 U.S.C. § 405(g).

Substantial evidence is more than a scintilla but less than a preponderance. See Cohen v. Sec'y of Dept. of Health & Human Servs., 964 F.2d 524, 528 (6th Cir. 1992). It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir. 1993). In applying this standard, a court must consider the evidence as a whole, while accounting for any evidence that fairly detracts from its weight. See Richardson v Sec'y of Health and Human Servs., 735 F.2d 962, 963 (6th Cir. 1984). The substantial evidence standard contemplates a zone within which the decision maker can properly rule either way without judicial interference. See Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986). This standard affords the administrative decision maker considerable latitude and precludes reversal simply because the evidence would have supported a contrary decision. See Bogle, 998 F.2d at 347; Mullen, 800 F.2d at 545.

PROCEDURAL POSTURE

Plaintiff protectively filed applications for DIB and SSI on January 27, 2021, alleging that he became disabled as of January 1 2019, due to back problems, high blood pressure, diabetes type 2, hyperglycemia, torn anterior cruciate ligament, ulcers, trigger finger, high cholesterol, and depression.^[1] (PageID.347, 523-24, 530-37.) Plaintiff was age 44 at the time of his alleged onset date and age 46 when he filed his applications. (PageID.347.) He had earned a GED and had past work as a painter. (PageID.594.) Plaintiff's application was denied initially and on reconsideration, and he requested a hearing before an Administrative Law Judge (ALJ).

On March 9, 2022, ALJ Brian Burgtorf held a hearing and received testimony from Plaintiff and Marnie South, an impartial vocational expert (VE). (PageID.303-323.) On May 4, 2022, the ALJ issued a written decision finding that Plaintiff was not entitled to benefits because he was not disabled from his alleged onset date through the date of the decision. (PageID.34-47.) The Appeals Council denied Plaintiff's request for review on December 21, 2022. (PageID.22-24.) The ALJ's ruling thus became the Commissioner's final decision. See Cook v. Comm'r of Soc. Sec., 480 F.3d 432,434 (6th Cir. 2007). Plaintiff timely initiated this civil action for judicial review on February 1, 2023.

ANALYSIS OF THE ALJ'S DECISION

The social security regulations articulate a five-step sequential process for evaluating disability. See 20 C.F.R. §§ 404.1520(a-f), 416.920(a-f).^[2] If the Commissioner can make a dispositive finding at any point in the review, no further finding is required. See 20 C.F.R. §§ 404.1520(a), 416.920(a). The regulations also provide that, if a claimant suffers from a nonexertional impairment as well as an exertional impairment, both are considered in determining residual functional capacity. See 20 C.F.R. §§ 404.1545, 416.945.

The burden of establishing the right to benefits rests squarely on Plaintiff's shoulders, and he can satisfy his burden by demonstrating that his impairments are so severe that he is unable to perform his previous work, and cannot, considering his age, education, and work experience, perform any other substantial gainful employment existing in significant numbers in the national economy. See 42 U.S.C. § 423(d)(2)(A); Cohen, 964 F.2d at 528. While the burden of proof shifts to the Commissioner at step five of the sequential evaluation process, Plaintiff bears the burden of proof through step four of the procedure, the point at which his residual functional capacity (RFC) is determined. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997) (ALJ determines RFC at step four, at which point claimant bears the burden of proof).

After determining that Plaintiff met the insured status requirements of the Act through December 31, 2021, and had not engaged in substantial gainful activity since his alleged onset date of January 1, 2019, the ALJ found that Plaintiff suffered from severe impairments of degenerative disc disease of the lumbar spine; bilateral knee degenerative joint disease with remote history of left anterior cruciate ligament repair; chronic right anterior cruciate ligament tear; tri-compartment osteoarthritis of the left knee; obesity; mood disorder; generalized anxiety disorder; attention deficit hyperactivity disorder; and post-traumatic stress disorder. (PageID.37.) At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled any physical or mental impairment identified in the Listing of Impairments detailed in 20 C.F.R., Part 404, Subpart P, Appendix 1. (PageID.37-40.)

The ALJ found that Plaintiff retained the RFC to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(a), except:

[F]or every 30 minutes sitting or standing, this individual will need to change position, while remaining on task at the workstation. The claimant can frequently push and pull with the bilateral lower extremities. The claimant can never climb ladders, ropes, or scaffolds, kneel, or crawl. The claimant can occasionally climb ramps and stairs, balance, stoop, crouch. The claimant can never overhead reach with the right upper extremity. The claimant frequently overhead reach with the left upper extremity. The claimant can never work around extreme cold, vibration, nor work around hazards, such as unprotected heights or unguarded or unprotected moving mechanical parts. The claimant can understand, remember, and carry out simple instructions, and make simple work-related decisions. The claimant can tolerate occasional changes in the routine work environment. The claimant can have frequent interaction with coworkers and supervisors, and occasional, superficial interaction with the public. The claimant can never work at a production rate pace, such as on an assembly line.

(PageID.40-41.)

At step four, the ALJ determined that Plaintiff was unable to perform his past relevant work as a painter, as his RFC limited him to unskilled work performed at the sedentary level. (PageID.45.) The burden of proof then shifted to the Commissioner to establish by substantial evidence that a significant number of jobs exist in the national economy that Plaintiff could perform. See Richardson, 735 F.2d at 964. Based on testimony from the VE, the ALJ found that an individual of Plaintiff's age, education, work experience, and RFC could perform the jobs of ink printer, table worker, and dial marker, approximately 81,000 of which existed in the national economy. (PageID.46.) This represents a significant number of jobs. See, e.g., Taskila v. Comm'r of Soc. Sec., 819 F.3d 902, 905 (6th Cir. 2016) (“[s]ix thousand jobs in the United States fits comfortably within what this court and others have deemed ‘significant'”). Therefore, the ALJ concluded that Plaintiff was not disabled.

DISCUSSION

Plaintiff raises two issues in his appeal: (1) the ALJ failed properly to evaluate the opinion of his treating source, Nidia O Miedema, M.D.; and (2) having rejected every physical opinion of record, the ALJ improperly inserted his own lay medical opinion in formulating Plaintiff's RFC. (ECF No. 11 at PageID.2655.)

I. Dr. Miedema's Opinion

A claimant's RFC represents the “most [a claimant] can still do despite [her] limitations.” Sullivan v. Comm'r of Soc. Sec., 595 Fed.Appx. 502, 505 (6th Cir. 2014); see also SSR 96-8P, 1996 WL 374184 at *1 (Social Security Administration, July 2, 1996) (a claimant's RFC represents her ability to perform “work-related physical and...