ANTHONY P. PATTI, Magistrate Judge.
For the reasons that follow, it is
Plaintiff, Rickey Mosley, 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 (DE 12), the Commissioner's cross-motion for summary judgment (DE 14), and the administrative record (DE 8).
Plaintiff alleges his disability began on March 1, 2013, at the age of 47. (R. at 291.) In his March 4, 2014 disability report, he lists several conditions (right shoulder (post rotator cuff repair), migraine headaches, seizures, arthritis (back, left knee and hands), high blood pressure, acid reflux, diabetes, and gout) that limit his ability to work. (R. at 313.) His application was denied on June 3, 2015. (R. at 228-238.)
On August 7, 2015, Plaintiff requested a hearing by an Administrative Law Judge ("ALJ"). (R. at 253-254.) Shortly thereafter, on or about August 11, 2015, he completed an appeal disability report, wherein he claims to have suffered a July 16, 2015 seizure. (R. at 356.) By a letter dated April 8, 2016, the SSA sought further action from Plaintiff's counsel. (R. at 364-374.) Approximately 3 weeks later, on or about April 28, 2016, Plaintiff submitted forms regarding his work background, recent medical treatment, and medications. (R. at 375-377.)
Then, Plaintiff submitted an August 2, 2016 pre-hearing statement. (R. at 381.) On August 4, 2016, ALJ Dennis M. Matulewicz held a hearing, at which Plaintiff and a vocational expert (VE), Zachary Matthews, testified. (R. at 190-227.) ALJ Matulewicz issued an opinion on September 20, 2016, which determined that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 175-189.)
On November 21, 2016, Plaintiff submitted a request for review of the hearing decision/order. (R. at 285-288.) Plaintiff submitted 164 pages of material, including medical records, a seizure questionnaire dated April 5, 2017, and a function report dated March 8, 2017. (R. at 7-170.) However, on July 10, 2017, the Appeals Council denied Plaintiff's request for review, noting, inter alia, that the additional evidence did not relate to the period at issue. (R. at 1-6.) Thus, ALJ Matulewicz's decision became the Commissioner's final decision.
Plaintiff timely commenced the instant action on September 12, 2017. (DE 1.)
The administrative record contains approximately 164 pages of medical records that were available to the ALJ at the time of his September 20, 2016 decision. (R. at 382-545 [Exhibits 1F - 6F].) In addition, Plaintiff submitted 164 pages of material, as previously described, that were available to — but were deemed irrelevant by — the Appeals Council. (R. at 7-170.) These materials be discussed in detail, as necessary, below.
Pursuant to 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), at
(Id. at 181-184.) At
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. at 2009) (quoting Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. at 2007)); see also 42 U.S.C. § 405(g) ("[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive. . . ."). Under this standard, "substantial evidence is defined as `more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind 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 (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)).
Plaintiff identifies the single, generic appellate issue as: "Whether the Administrative Law Judge's Decision is supported by substantial evidence?" (DE 12 at 4.) This broad statement seemingly fails to constitute the "concise statement of the issues presented . . ." required by the local rules. E.D. Mich. LR 7.1(d)(2) (emphasis added). It also does not satisfy the Undersigned's practice guidelines for briefing in social security cases:
See
That being said, the Court has done its best to discern the specific issues fairly raised by Plaintiff's motion and brief, approximately two pages of which are dedicated to argument. Within his introduction, Plaintiff points to the August 8, 2013 notes from Oakland Orthopaedic Surgeons, which concerned Plaintiff's shoulder and wherein Matthew J. Siskosky noted positive impingement testing. (DE 12 at 3, R. at 384; see also DE 14 at 5.) This is Plaintiff's only express citation to his medical records. Plaintiff's remaining citations to the administrative record are the hearing transcript (R. at 199, 210-211, 220) and the ALJ's Step 2 conclusion (R. at 180.) (See DE 12 at 3-7.)
At the beginning of his analysis, Plaintiff draws the Court's attention to his "right shoulder impingement syndrome which prevents him from performing repetitive work with his right arm," and his "lack [of] any entry level computer skills." (DE 12 at 5.) Despite Plaintiff's claim that his analysis focuses on Step 5 of the sequential evaluation (id.), the Court construes Plaintiff's two largely unsupported and undeveloped pages of argument as setting forth challenges based on:
Plaintiff alleges that the ALJ "failed to fully develop the record. . . ." (DE 12 at 6.) Although this particular paragraph of Plaintiff's argument suggests that the ALJ should have developed the record further with respect to Plaintiff's "shoulder, back, and knee injuries," it only specifically complains about his "right arm disability," namely complaining that "there was no discussion regarding future treatment and Plaintiff's restrictions." (Id.)
Here, the Court assumes that Plaintiff takes issue with the ALJ's reference to the May 9, 2013 and August 8, 2013 records from Oakland Orthopaedic Surgeons. (R. at 182, 382-387.) Specifically, the ALJ noted the referral to (or recommendation to undergo an evaluation by) an arthroplasty specialist. (R. at 182, 384.) Yet, the ALJ later observed, "[i]t does not appear that the claimant followed up with an arthroscopy specialist for shoulder pain as directed in 2013." (R. at 184.) However, Plaintiff provides no authority for his statement that "when an examin[ing] source fails to diagnose and discuss a primary medical condition[,] there is a need to remand for further consideration of the medical evidence." (DE 12 at 6.)
Perhaps more importantly, the Court suspects this argument is based upon the SSA regulation that states, "[w]e will make every reasonable effort to help you get medical reports from your own medical sources when you give us permission to request the reports." 20 C.F.R. §§ 404.1512(d), 416.912(d) (effective June 12, 2014 to April 19, 2015). If so, Plaintiff has not shown the Court that he gave the SSA permission to request any such reports.
Plaintiff claims that the ALJ based his Step II severity findings "on the basis of his subjective analysis[,]" and "did not consider Plaintiff's testimony related to his ability to sit, stand, walk or use his right arm." (DE 12 at 6.) Presumably, Plaintiff is referring to his testimony that he "couldn't lift up off the table, above the table[,]" "couldn't lift [his] hands above the table as far as . . . lifting up to [his] shoulder[,]" and "had a problem with [his] shoulder[,]" (R. at 211). (See DE 12 at 5).
Plaintiff appears to be challenging the ALJ's conclusion that "claimant's statements concerning the intensity, persistence and limiting effects of [his alleged] symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision." (R. at 182.) See SSR 96-7P (S.S.A. July 2, 1996) ("Assessing the Credibility of an Individual's Statements"). However, to the extent Plaintiff is attempting to challenge the ALJ's consideration of "[f]actors relevant to [his] symptoms, such as pain," 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (effective June 13, 2011 to March 26, 2017), his argument is undeveloped.
Moreover, within the RFC determination, the ALJ cited from the daily activities portion of Plaintiff's Function Report (e.g., personal care, meals, house work, getting around and shopping), as well as several of the medical records then before him. (See R. at 182-184, 328-330.) Thereafter, the ALJ specifically stated:
(R. at 184.) Thus, the ALJ considered Plaintiff's "daily activities[,]" "[t]he type, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate your pain or other symptoms[,]" and "[t]reatment, other than medication, you receive or have received for relief of your pain or other symptoms[.]" 20 C.F.R. §§ 404.1529(c)(3)(i), (iv), (v), 416.929(c)(3)(i), (iv), (v). Plaintiff's undeveloped argument does not show any error in the ALJ's credibility determination — a burden that is Plaintiff's to meet. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) ("[D]uring the first four steps, the claimant has the burden of proof; this burden shifts to the Commissioner only at Step Five.").
An RFC's exertional limitations include lifting, carrying, standing, walking, sitting, pushing and pulling. See, e.g., 20 C.F.R. §§ 404.1569a(b), 416.969a(b). As noted above, the ALJ here determined that Plaintiff was exertionally limited to sedentary work, with the following limitations lifting "up to twenty pounds occasionally, and up to ten pounds frequently[,]" sitting "for six hours of an eight-hour workday," and standing and/or walking "for six hours of an eight-hour workday." (R. at 181.)
Plaintiff claims that the ALJ failed to consider the effect of his shoulder, back, and knee injuries "on his ability to perform substantial gainful activity." (DE 12 at 6.) While Plaintiff notes his "shoulder impingement syndrome, knee problem, and the fact that [he] could not sit in one position due to chronic pain[,]" and contends that, during the hearing, he "was not sitting, he was squirming due to his discomfort[,]" (DE 12 at 6-7), something that the ALJ noticed (see R. at 210), Plaintiff has not established a more restrictive RFC than that found by the tribunal — a burden that is Plaintiff's to meet. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) ("[D]uring the first four steps, the claimant has the burden of proof; this burden shifts to the Commissioner only at Step Five."). Berry v. Comm'r of Soc. Sec., No. 16-10548, 2016 WL 7664225, at *11 (E.D. Mich. Dec. 8, 2016) (Morris, M.J.) ("Berry gives no indication what additional restrictions might be necessary to accommodate his conditions, but merely mentions the possibility that the ALJ could have included more restrictive limitations in his RFC assessment.") (emphasis in original), report and recommendation adopted, No. 16-10548, 2017 WL 67458 (E.D. Mich. Jan. 6, 2017) (Rosen, J.).
Plaintiff also seems to challenge the ALJ's right upper extremity manipulative limitations, as they relate to his right shoulder impingement syndrome and the use of his right arm. (DE 12 at 7.) The manipulative limitations assessed by the ALJ include: "The clamant could not reach to do over-theshoulder work with his right upper extremity[,]" "[h]e could frequently (but not constantly) handle, finger, and feel with the right upper extremity[,]" and "[t]he claimant could only occasionally push and pull with his right upper extremity." (R. at 181 (emphases added).) At Step 5, the ALJ concluded that Plaintiff is capable of performing the positions of information clerk, office clerk, and sorter (R. at 186), each of which the VE described as "unskilled" and "sedentary," (R. at 217).
Presumably referring to Plaintiff's testimony that he does not know how to use a computer or his testimony that it would be "painful to keep [his] arms stretched out[,]" (R. at 224-225), Plaintiff takes issue with the VE's testimony that the information clerk and the office clerk positions would require "some basic computer skills[,]" and that the sorter position was not one-handed and required "dexterity in the use of two hands[,]" (R. at 220-221). (DE 12 at 3, 5, 7.)
However, the VE described basic computer knowledge as "a basic concept of a keyboard, how to turn it on, turn it off, . . . basic meanings behind the keys." (See R. at 219-220.) As the Commissioner points out, Plaintiff "offers no record evidence of such complete inability." (DE 14 at 13-14.) First, Plaintiff did not seek disability based upon a cognitive deficit. (R. at 313.) Second, the Court notes that, even though Dr. Siskosky's August 8, 2013 office notes conclude that Plaintiff "has a chronic retracted irreparable tear and has continued symptoms," (R. at 384), this piece of evidence does not, alone, convey a physical inability to perform work on a computer. In sum, Plaintiff has failed to show that the assessed right upper extremity manipulative limitations are inadequate.
The ALJ's decision was supported by substantial evidence, and no legal error which would lead to a different result has been shown. For the foregoing reasons, it is
The parties to this action may object to and seek review of this Report and Recommendation, but are required to file any objections within 14 days of service, as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 72.1(d). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec'y of Health & Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sec'y of Health & Hum. Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1273 (6th Cir. 1987). Pursuant to Local Rule 72.1(d)(2), any objections must be served on this Magistrate Judge.
Any objections must be labeled as "Objection No. 1," and "Objection No. 2," etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than 14 days after service of an objection, the opposing party may file a concise response proportionate to the objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR 72.1(d). The response must specifically address each issue raised in the objections, in the same order, and labeled as "Response to Objection No. 1," "Response to Objection No. 2," etc. If the Court determines that any objections are without merit, it may rule without awaiting the response.
