WAHL v. COLVIN, 13-CV-12793. (2014)
Court: District Court, E.D. Michigan
Number: infdco20140716a96
Visitors: 9
Filed: Jun. 23, 2014
Latest Update: Jun. 23, 2014
Summary: FootNotes 1. The format and style of this Report and Recommendation are intended to comply with the requirements of the E-Government Act of 2002, Pub. L. 107-347, 116 Stat. 2899 (Dec. 17, 2002), Fed. R. Civ. P. 5.2(c)(2)(B), E.D. Mich. Administrative Order 07-AO-030, and guidance promulgated by the Administrative Office of the United States Courts found at: http://www.uscourts.gov/RulesAndPolicies/JudiciaryPrivacyPolicy/March2008RevisedPolic y.aspx. This Report and Recommendation only address
Summary: FootNotes 1. The format and style of this Report and Recommendation are intended to comply with the requirements of the E-Government Act of 2002, Pub. L. 107-347, 116 Stat. 2899 (Dec. 17, 2002), Fed. R. Civ. P. 5.2(c)(2)(B), E.D. Mich. Administrative Order 07-AO-030, and guidance promulgated by the Administrative Office of the United States Courts found at: http://www.uscourts.gov/RulesAndPolicies/JudiciaryPrivacyPolicy/March2008RevisedPolic y.aspx. This Report and Recommendation only addresse..
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FootNotes
1. The format and style of this Report and Recommendation are intended to comply with the requirements of the E-Government Act of 2002, Pub. L. 107-347, 116 Stat. 2899 (Dec. 17, 2002), Fed. R. Civ. P. 5.2(c)(2)(B), E.D. Mich. Administrative Order 07-AO-030, and guidance promulgated by the Administrative Office of the United States Courts found at: http://www.uscourts.gov/RulesAndPolicies/JudiciaryPrivacyPolicy/March2008RevisedPolic y.aspx. This Report and Recommendation only addresses the matters at issue in this case and is not intended for publication in an official reporter or to serve as precedent.
2. The ALJ found that Plaintiff's post-onset earnings from his business were likely less than $10,000 and did not rise to the level of substantial gainful activity. (Tr. at 21.)
3. Plaintiff also provided numerous reports from 2005 concerning his mental health. (Tr. at 218-53.) He did not claim disability due to any mental impairment; as his representative explained in a pre-hearing brief to the ALJ, Plaintiff grounded his disability on "degenerative psoriatic arthritis, occupational asthma, coronary artery disease, degenerative disc disease, sleep apnea, and right shoulder pain." (Tr. at 217.) Nor did Plaintiff list mental impairments in his application or other paperwork. (Tr. at 166-69, 178, 189-96.) At the hearing, Plaintiff stated he had no mental impairments and that the records showing he was bi-polar represented a mis-diagnosis. (Tr. at 54.) His appeal from the ALJ's decision does not dispute that mental problems were severe impairments. (Doc. 11.) And the ALJ incorporated limitations into the RFC to reflect the mental health records. (Tr. at 22.)
4. Plaintiff also had blurred vision, and Dr. Laynes recommended seeing a specialist. (Tr. at 417-18, 524.) On October 21, Dr. Eric S. Coller, an ophthalmologist, wrote to Dr. Laynes that he examined Plaintiff and diagnosed dry eye syndrome. (Tr. at 422, 538.) He added that Plaintiff's psoriatic arthritis had not caused ocular inflammation. (Id.)
5. Test results for an unrelated medical issue, completed in January, 2012, after the hearing, are also present in the Record. (Tr. at 623-26.) Aside from its irrelevance to the present case, it is not clear that the ALJ viewed these records, putting them outside of the Court's review. (Tr. at 38.) See Cline v. Comm'r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996); Cotton v. Sullivan, 2 F.3d 692, 696 (6th Cir. 1993).
6. Plaintiff's argument ultimately attacks the RFC for lacking substantial evidence. The text of his Motion and Brief, however, suggests a slightly different emphasis: he criticizes the hypothetical for not accurately reflecting the RFC, and thus claims the Commissioner failed to meet her burden at stage five. His Motion itself does not address the RFC. (Doc. 9 at 1-2.) Rather, it states,"The Defendant determined that the Plaintiff is unable to perform any of his past relevant work, and according to applicable laws of the Circuit, the Defendant, therefore, has the burden of proving that a significant number of jobs exist which the Plaintiff is able to perform." (Id. at 1.) He continues, "The evidence in the record establishes that the Defendant's final decision was based upon errors of law, giving [rise] to a final decision that is not supported by substantial evidence and is contrary to" the law. (Id.)
His Brief frames the issue as "[w]hether the Commissioner erred as a matter of law in failing to properly evaluate the medical records and opinions of evidence, and thereby formed an inaccurate hypothetical that did not accurately portray Mr. Wahl's impairments?" (Doc. 9 at 7.) In his argument, Plaintiff notes that the burden shifts to the Commissioner at step five, stating, "In this case, the Commissioner failed to satisfy this burden of proof[,] warranting reversal or remand." (Doc. 9 at 8.) He elaborates that "[b]ecause each element of the hypothetical does not accurately describe Mr. Wahl in all significant, relevant respects, the VE's testimony at the hearing should not constitute substantial evidence. The ALJ did not properly evaluate Mr. Wahl's impairments in the first hypothetical question, and therefore, the hypothetical is flawed." (Doc. 9 at 9.) He then sets forth the standards for evaluating medical source opinions and recounts his testimony at the hearing. (Doc. 9 at 9-11.)
He comes close to making a more explicit "substantial evidence" argument by twice stating that the ALJ's conclusions were not substantiated. (Doc. 9 at 10.) But after the paragraph containing those two statements, he reverts to addressing the hypothetical, concluding that the "first two hypotheticals are improper" because he "was incapable of performing even these representative jobs" listed by the VE. (Doc. 9 at 12.) The bulk of the argument therefore explicitly discusses the hypothetical and the Commissioner's stage-five burden. He only hints at the "substantial evidence" review and his own burden to prove the impairments comprising the RFC; nonetheless, his claim is premised on a faulty RFC determination and thus the Commissioner's "burden of proof" at stage five is irrelevant.
7. The Commissioner's power to determine the claimant's RFC is less capacious than it appears at first. While the ALJ determines the RFC, the ALJ might be required to give controlling weight to treating source opinions on specific limitations. See 20 C.F.R. § 404.1513(b)-(c) (describing that medical reports can include a source's "statement about what [the claimant] can still do despite [her] impairments"). These opinions would necessarily affect the RFC. See Green-Young v. Barnhart, 335 F.3d 99, 106-07 (2d Cir. 2003) (holding that treating physician's opinion that claimant could not sit or stand for definite periods "should have been accorded controlling weight").
8. The ALJ could have also cited Plaintiff's testimony that he could work as a parts inspector when his arthritis was calm or do his old job at General Motors full-time. (Tr. at 64-65.) Additionally, Plaintiff's responsibility for his son also gives proof of capacities. See Andersen v. Astrue, No. 3:11-cv-250-JAG, 2012 WL 4498921, *7, 14-16 (E.D. Va. June 15, 2012); Temples v. Astrue, No. 1:11CV-00090-JHM, 2012 WL 590814, at *5-7 (W.D. Ky. Jan. 24, 2012).
Source: Leagle
