Zube v. Social Security, Commissioner of
Filing
19
ORDER overruling Plaintiff's Ojections; adopting 17 Report and Recommendation; denying 12 Motion to Remand; granting 15 Motion for Summary Judgment and Dismissing Complaint with Prejudice. Signed by District Judge Thomas L. Ludington. (SGam)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
GENE C. ZUBE, JR.,
Plaintiff,
Case Number 11-12862
Honorable Thomas L. Ludington
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________ /
OPINION AND ORDER OVERRULING PLAINTIFF’S OBJECTIONS,
ADOPTING REPORT AND RECOMMENDATION, DENYING PLAINTIFF’S
MOTION TO REMAND, GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT, AND DISMISSING PLAINTIFF’S COMPLAINT WITH PREJUDICE
This case arises out of an application for social security benefits filed by Plaintiff Gene
Zube. Defendant Commissioner of Social Security denied the application. Plaintiff appeals that
decision. At issue is whether Administrative Law Judge John Ransom’s decision is supported by
substantial evidence. Concluding that it is, Magistrate Judge Mark A. Randon issued a report
recommending that the Court deny Plaintiff’s motion to remand, grant Defendant’s motion for
summary judgment, and dismiss Plaintiff’s complaint.
Within fourteen days after being served with a copy of a report and recommendation,
any party may file written objections. 28 U.S.C. § 636(b)(1). The district court “shall make a de
novo determination of those portions of the report . . . to which objection is made.” Id. The
Court is not obligated to further review the portions of the report to which no objection was
made. Thomas v. Arn, 474 U.S. 140, 149–52 (1985).
Plaintiff timely filed two objections to Judge Randon’s report. ECF No. 18. First,
Plaintiff objects that his physical limitations have not been accurately assessed by Defendant.
Specifically, the conclusion that Plaintiff is able “to perform the walking and balancing
requirements of light work is contrary to the objective medical evidence of record.” Pl.’s
Objections 3, ECF No. 18. Second, Plaintiff objects, his mental limitations have not been
accurately assessed by Defendant. Specifically, the conclusion that Plaintiff is able “to perform
simple, routine tasks at a regular pace” is not supported by substantial evidence. Id. at 5.
As an initial matter, the Court notes, Plaintiff’s “objections” are substantively
reassertions of arguments made in Plaintiff’s motion to remand, not objections particularized to
the report and recommendation. Compare, e.g., Pl.’s Mot. to Remand 7 (“Although the ALJ
indicates that the claimant was able to complete training as a heavy equipment operator and that
his attention and concentration at the time of the hearing were reasonable, this rather superficial
analysis is not reflected in the objective evidence in the case record.”), with Pl.’s Objections 5
(“The Report indicates the ALJ noted that Mr. Zube was able to successfully complete training
as a heavy equipment operator which is representative of Plaintiff’s ability to learn and complete
job training. . . . On its face completing training as a heavy equipment operator is inconsistent
with the objective psychological testing by both Drs. Ruben and Tom Siebert.”). Nevertheless,
Plaintiff is entitled to “fresh consideration” of those portions of the record which are relevant to
his objections. See generally 12 Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 3070.2 (2d ed. 1997 & supp. 2010).
After considering Plaintiff’s objections, however, the Court agrees with Judge Randon’s
conclusion. Judge Ransom’s decision is supported by substantial evidence. Accordingly, the
Court will adopt the report and recommendation, deny Plaintiff’s motion to remand, grant
Defendant’s motion for summary judgment, and dismiss Plaintiff’s complaint.
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I
The Commissioner of Social Security determines whether a claimant is disabled in
accordance with a five-step process. 20 C.F.R. § 404.1520(a)(4)(i)–(v). A claim is allowed
when it is demonstrated that: (1) the claimant is not engaged in “substantial gainful
employment”; (2) the claimant suffers from a severe impairment which has lasted or is expected
to last for twelve continuous months; (3) the impairment meets or is equal to one of the
enumerated impairments; (4) ; the claimant does not retain the “residual functional capacity” to
perform his “past relevant work”; and (5) the claimant is unable to perform any other gainful
employment in light of the claimant’s “residual functional capacity, age, education, and work
experience.”
20 C.F.R. § 416.920(a)(4)(i)–(v).
“The burden of proof is on the claimant
throughout the first four steps of this process to prove that he is disabled.” Preslar v. Sec’y of
Health and Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994) (citing 20 CFR § 404.1520
(1982)). “If the analysis reaches the fifth step without a finding that the claimant is not disabled,
the burden transfers to the [Commissioner].” Id.
The Court reviews the administrative law judge’s decision to determine whether the
“factual findings . . . are supported by substantial evidence.” Tyra v. Sec’y of Health & Human
Servs., 896 F.2d 1024, 1028 (6th Cir. 1990) (citing 28 U.S.C. § 405(g)). Substantial evidence “is
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971). A district court does not resolve conflicts of
evidence or issues of credibility. Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679,
681 (6th Cir. 1989). If the administrative law judge’s decision is supported by substantial
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evidence, it must be affirmed, even if substantial evidence supports the opposite conclusion. Her
v. Comm’r of Soc. Sec., 203 F.3d 388, 389–90 (6th Cir. 1999).
II
A
Plaintiff is a forty-four year-old man. R. at 19. He graduated from high school and has
some college education. R. at 381. Twice married and twice divorced, he is the father of two
teenage daughters. R. at 431. His relevant work history includes employment as a convenience
store clerk, oil change laborer, pizza delivery man, construction laborer, landscaper, and car
wash assistant manager. R. at 169.
In August 2007, Plaintiff was injured. R. at 31. He recalls, “I was hit in the back of my
head and then hit [in] my lower back with a [two-by-four].” Id. Medical records, however,
provide a different account of the injury: “The claimant’s head injury was caused by a six foot
fall from a balcony [onto a cement slab]. When admitted to the hospital, tests revealed that
claimant was significantly intoxicated and had several drugs in his system.” R. at 250; see
generally R. at 333 (providing description of incident resulting in Plaintiff’s injury).
After being admitted to the hospital, Plaintiff was diagnosed with a traumatic brain
injury, heel cord contractures, and foot deformity. R. at 15. He remained hospitalized for two
weeks at St. Mary’s Medical Center, followed by a month of rehabilitation at Healthsource
Saginaw. Id.
B
Following his injury, Plaintiff underwent physical and psychological testing.
On
November 8, 2007, Sally Glowicki, M.A., performed a psychological evaluation of Plaintiff. See
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R. at 245–251. Assessing Plaintiff, Ms. Glowicki reported: “The claimant demonstrated poor
insight and judgment. His motivation and self esteem appeared fair. . . . Reality testing was
within normal limits. One pain behavior was noted. The claimant hobbled and limped when he
walked into the evaluation.” R. at 248.
Ms. Glowicki continued: “The claimant reported having depressive symptoms to include
feelings of worthlessness, suicidal ideation, anxiety, sleep disturbance, reduced appetite, weight
loss, down mood, loss of interest, trouble with concentration and memory problems. . . . The
claimant reported having significant memory problems and failure to recall his history from the
past two years. The records indicated that his memory impairment was due to a combination of
his head injury and alcoholism.” R. at 250. Id. Ms. Glowicki concluded her evaluation by
diagnosing Plaintiff with major depressive disorder, cognitive disorder, pain disorder, nicotine
dependence, and alcohol dependence. Id.
On November 28, 2007, Bret Bielawski, D.O., performed a physical examination of
Plaintiff. See R. at 254–257. Dr. Bielawski was informed by Plaintiff that “[h]e is independent
in all activities of daily living.
Prior to this injury, he did have some congenital feet
abnormalities that he has never paid any attention to. . . . He states that his left knee seems to
bend backwards when he stands. He thinks he can walk for possibly a block and stand for about
5 minutes.” R. at 254.
After examining Plaintiff, Dr. Bielawski reported: “The patient’s immediate, recent and
remote memory is intact with normal concentration. The patient’s insight and judgment are both
appropriate.” R. at 255. Dr. Bielawski continued: “Both knees are unremarkable except for the
left knee has PCL [posterior cruciate ligament] laxity with hypertension. . . . . He has extremely
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high arches . . . . The patient had mild difficulty getting on and off the examination table, cannot
walk on his heels, is already walking on his toes and cannot squat.” Id. Concluding the
evaluation, Dr. Bielawski diagnosed Plaintiff with “congenital high arches,” recommending:
“Certainly arch supports would help in this regard. . . . As far as this new numbness goes, I am
not convinced that this is from his intracranial bleed. This may be from alcoholic neuropathy.
He does have a long history of alcoholism. . . . Either way, this gentleman would be unable to
climb stairs, ambulate on uneven surfaces, stand for even short periods of time or ambulate for
even short periods of time.” R. at 256.
C
On December 2, 2008, Plaintiff applied for federal disability benefits.
R. at 110.
Plaintiff alleged that his disability began about the time he suffered the head injury in August
2007. Id. He specified that the following conditions limited his ability to work: “Head and back
injury, arthritis in feet and back, numb feet, depression.” R. at 128.
Plaintiff elaborated that he “can barely walk[,] can stand short times, have to stand on
tippytoes and it[’s] hard[,] trouble concentrating, remembering[,] [cannot] sleep, always thinking
about what happened to me in the past. [M]y life[’]s come to a halt, [I cannot] work and it
depresses me. [I’m] in pain 24 hrs a day.” Id.
D
In February 2009, Anne Tadeo, M.D., performed a psychiatric evaluation of Plaintiff.
See R. at 449–50. Dr. Tadeo recorded that Plaintiff’s self-reported symptoms included “mood
swings, sleep disturbance, decreased appetite, and weight loss. Poor focus and social isolation.”
R. at 449. “The patient stated that he abuses alcohol and the last time he drank was two weeks
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ago and he had a fifth at that time. Patient also smokes marijuana, the last time he used cannabis
was the night prior to today’s visit,” Dr. Tadeo further recorded. Id.
Evaluating Plaintiff’s mental health, Dr. Tadeo continued: “He was pleasant and
cooperative with good eye contact. Thought process is goal directed. Speech was normal in
volume, rate and rhythm. . . . Patient has fair focus, concentration, and memory. Insight and
judgment are fair.” R. at 449. Dr. Tadeo concluded by diagnosing Plaintiff with bipolar disorder,
post-traumatic stress disorder, alcohol abuse, and cannabis abuse. R. 450.
In April 2009, Dr. Bielawski again performed a physical examination of Plaintiff. See R.
at 289–91. Dr. Bielawski recorded that Plaintiff’s self-reported symptoms included that he
“cannot walk for much more than 25 minutes and can sit and stand for about 15–20 minutes at a
time.”
R. at 289.
After examining Plaintiff, Dr. Bielawski again found: “The patient’s
immediate, recent and remote memory is intact with normal concentration. The patient’s insight
and judgment are both appropriate.” R. at 290.
Evaluating Plaintiff’s physical health, Dr. Bielawski continued: “Both feet have very high
arches. Knee exam was unremarkable and his last exam in November 2007 I noted that the PCL
was lax in the left knee which I do not appreciate today. Grip strength remains intact. Dexterity
is unimpaired. . . . The patient had mild difficulty getting on and off the examination table, mild
difficulty heel and toe walking and mild difficulty squatting.” R. at 290. Concluding the
evaluation, Dr. Bielawski diagnosed that Plaintiff’s impairments as “congenital high arches and
polyneuropathy . . . . I still think that this is from his history of alcoholism giving him a
permanent alcoholic neuropathy. Without his boots, he had mild difficulty doing orthopedic
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maneuvers. He states that he wears these heavy boots because they give him more balance
which certainly makes sense. But his exam was really unremarkable otherwise.” R. at 291.
In May 2009, psychologist Michael Brady, Ph.D., performed a psychological evaluation
of Plaintiff. See R. at 292–97. After observing Plaintiff, Dr. Brady reported: “Posture and gait
were unremarkable. . . . Mood was depressed.” R. at 294. “When asked what he does on a
typical day,” Dr. Brady continued, “[Plaintiff] reported that he wakes up at 7:00 am. Morning
activities include making coffee and talking. Afternoon activities include relaxing. He is
currently tearing a porch off [his] mobile home.” R. at 294.
Summarizing his findings regarding Plaintiff’s mental health, Dr. Brady wrote: “Results
of the mental status examination revealed no abnormalities in mental capacity. Throughout the
evaluation he was cooperative and attentive. The only discrepancy discover[ed] in the interview
was a denial of any history of alcohol abuse. However, after he was informed that his chart
reflected alcohol abuse he disclosed previous and current alcohol use.” R. at 296. Dr. Brady
concluded by diagnosing Plaintiff with major depressive disorder. Id.
In June 2009, Douglas Ruben, Ph.D., also performed a psychological evaluation. See R.
331–41. Reporting his observations of Plaintiff, Dr. Ruben wrote that Plaintiff “ambulated
independently with a normal gait showing no psychomotor disturbance. He sat comfortably in
the chair, and refused another more ergonomically convenient chair. He made no profound
gestural or postural movements. Attention span and physical stamina were generally strong.
Affect remained upbeat, energetic, spontaneous, dynamic, fluid, elevated, sensitive, and stable.
No anger, resistance, opposition, or psychosis evident.” R. at 335.
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Evaluating Plaintiff’s reliability as a self-reporter of his symptoms, Dr. Ruben cautioned:
“He may elaborate, exaggerate, or overstate symptoms of psychopathology . . . .
His
construction of past events is questionable. He may unknowingly lack a logical sequence
detailing the flow of events, or contaminate his memory of past events with varying
interpretations of his actions. He appears a poor and unreliable historian. Consequently, caution
is advised against accepting his reporting on face value.” Id.
Dr. Ruben found Plaintiff to have average reasoning, but below-average memory,
reporting: “Speed of cognitive processing and reasoning skills was low average. Interpretation
of facts was accurate if facts remained simple. Simple problem solving scored in average ranges
with few errors made. Complex thoughts and abstractions were formed incorrectly. Memory
deficits were most profound. Immediate recall was weak, delayed, and inaccurate for simple and
complex sequences.” R. at 339. Dr. Ruben further found Plaintiff to have below-average visual
perception of the spatial relationships between objects, explaining: “Limited visuospatial skills
may preclude jobs such as computer programming or operating heavy equipment that depends on
assessing physical cues in the environment.” R. at 338.
Summarizing his findings, Dr. Ruben concluded: “Psychological testing and clinical
interview profiles an Intellectually Borderline, endogenously depressive, and interpersonally
underdeveloped middle-aged adult.” R. at 339. Turning to Plaintiff’s job prospects, Dr. Ruben
wrote: “At present, the following problems may arise when placed in factory based or
construction jobs: (a) reduced endurance and high distractability, (b) rapid apathy,
disenchantment, self-anger, and abandonment of the job (quit, abort the task), (c) high turnover
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rate to another job, and (d) hide, disguise, or suppress problem with the assigned tasks to prevent
detection of his errors.” R. at 341.
E
In July 2009, Plaintiff underwent an electromyelgram (a diagnostic procedure designed to
assess the health of muscles and nerve cells). See R. 342–44. The doctor who performed the
procedure, J.M. Buday, M.D., reported “[f]indings which are suggestive of possible bilateral L5S1 involvement.” R. at 343. “There are some chronic findings in the lower lumbar, upper sacral
region,” Dr. Buday elaborated. Id.
About this time, Plaintiff also underwent an MRI. R. at 347. The radiologist who
performed the procedure, Elias Mendoza, M.D., reported: “The disc spaces appear fairly well
maintained. No osteolytic or osteoblastic lesion. The prevertebral soft tissues appear within
normal limits.” Id. He further reported: “The sacroiliac joint appears within normal limits. . . .
There is mild to moderate narrowing of the disc space at L4-L5 and L5-S1.
There is
spondylolysis [a defect in the connection between vertebrae] at L6.” R. at 345.
F
In August 2009, Plaintiff began an eight week course for heavy equipment operation. R.
at 432. Successfully completing the course, he is now certified as a heavy equipment operator.
Id. Following Plaintiff’s completion of his training, Michigan Rehabilitation Services (a state
agency) offered Plaintiff a four week “sheltered employment trial” to enable Plaintiff to earn
enough money to have his driver’s license reinstated (it had been suspended for non-payment of
parking fines). Id. Plaintiff successfully completed the sheltered employment trial. Id. He has
since obtained his driver’s license. R. at 29.
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G
Plaintiff is currently being counseled by the MPA Group, a mental health services
provider. R. at 15; see, e.g., R. at 420–434. Asked about his objectives, Plaintiff asserted: “My
goals are the same: to get a job and my own place to live; get my life back together.” R. at 427.
On January 4, 2010, an MPA Group therapist, Timothy Fish, met with Plaintiff. R. at
426. Following the meeting, he recorded: “Gene has completed training and is now certified as a
Heavy Equipment Operator. He needs to also get his CDL [commercial driver’s license] to
supplement this certificate.” R. at 426. Evaluating barriers to Plaintiff achieving his objectives,
Mr. Fish, observed: “His having multiple Felonies on his criminal record will be a barrier to
being accepted into public housing.
At times he has an indifferent attitude, becomes
overwhelmed and feels like giving up.
This may have a negative impact on pursuing
employment.” Id.
Mr. Fish did not note any limitations regarding Plaintiff’s physical or mental abilities as
potential barriers to Plaintiff achieving his objectives. Id. In an addendum produced about this
time, Mr. Fish also noted “Gene is able to perform household tasks independently despite his
chronic pain and limited range of motion. He is, admittedly, a little lax, however, when it comes
to routine chores and many times ‘things don’t get done’ which adds to his frustrations and
feelings of being overwhelmed.” R. at 433.
H
On June 16, 2010, psychologist Thomas Seibert, M.S., evaluated Plaintiff. See R. at 378–
95. Addressing Plaintiff’s foot problems, Mr. Seibert reported: “Mr. Zube suffers from high
arches, which cause him to have problems with his feet. He indicated that these problems do not
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cause functional limitations for him.” R. at 379–80. Turning to Plaintiff’s head injury, Mr.
Seibert continued: “Since suffering this head injury, Mr. Zube has had reduced memory,
concentration, and balance.
He denied that he stumbles or falls.
‘I walk on my tiptoes
sometimes,’ Mr. Zube stated. . . . He denied that his problems with concentration have created
difficulties for him in the school, work, or social settings.” R. at 380 (emphasis omitted).
Assessing Plaintiff’s intelligence, Mr. Seibert found: “Mr. Zube is functioning in the
borderline range of intellectual ability. . . . [He] has average reading recognition and reading
comprehension skills. . . . Mr. Zube has average math skills.” R. at 382, 384. Regarding
Plaintiff’s work interests, Mr. Seibert continued: “Mr. Zube expressed little enthusiasm for
operating computers, sales work, employment as a nurse, working in the field of science,
childcare work, secretarial work, and work that is not dirty. . . . Overall, Mr. Zube is most highly
interested in occupations in the mechanical vocational area.” R. at 389, 390.
Summarizing his assessment of Plaintiff, Mr. Seibert concluded: “The present evaluation
indicates that Mr. Zube is not capable of pursing employment as an industrial engineering
technician or mining engineer. . . . [H]is ability to work as an industrial truck operator, crane
operator, or heavy equipment operator is in doubt because of the severity of his brain injury. . . .
Mr. Zube’s strengths include his strong work ethic, his possession of a high school diploma, his
average reading recognition, reading comprehension, spelling, and math skills.” R. at 394–95.
I
After Plaintiff’s disability application was initially denied by Defendant, Plaintiff filed a
written request for a hearing before an administrative law judge. R. at 13. On August 19, 2010,
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the hearing was held. Id.; see R. at 25–44 (transcript). Plaintiff, represented by counsel,
appeared and testified. R. at 13. His counsel asked Plaintiff to describe his disability:
Q: [S]o let’s talk about, kind of fast forward to what kind of problems you’re
having now. You having any back pain?
A: A lot of back pain.
Q: Okay, is it a constant pain or pain that just comes and goes?
A: Constant.
Q: Okay. Is it in your middle, upper or lower back?
A: My lower back.
Q: Okay. And then, what about any problems with your leg as far as pain or
numbness?
A: Yes, my feet too.
Q: Okay, what kind of problems do you have with your legs?
A: They just always hurt. I get cramps in them. Just like my feet, my feet go
numb. Constant pain.
Q: All right. And you mentioned about your feet and ankles, what’s causing that,
you know?
A: I have no idea. . . .
Q: [D]o you have any problems walking now?
A: Yes, I do.
Q: What kind of problems?
A: I can only walk so often, I got to stop. My feet swell up on me, they go numb
on me.
Q: Do you have any problems with balance?
A: All the time now.
Q: Okay.
A: Sometimes like I don’t hold something just to walk.
Q: All right. What about walking, let’s say, on uneven surfaces like, say ground,
you know, ground or going up and down curbs?
A: I have a hard time doing that.
Q: Okay. What about inclines, ramps? Yes?
A: Yes.
Q: Now, you have any problems understanding or remembering things?
A: Yes, I do. . . .
Q: Do you lay down or did you recline at all during the day because of pain?
A: Sometimes I do.
Q: Let’s say in a seven-day week, how often would you need to recline or lie
down due to pain?
A: About four days of the week.
Q: Four out of the seven?
A: Yes.
Q: And when you do lie down and recline, how long do you need to do it for?
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A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
There’s times where I’ll do it for a couple hours, half hour, it’s all varied.
So between 30 minutes to a couple hours?
Yes. . . .
Okay, how far can you walk before you get off, before you have to stop or get
off your feet?
It’s all varied, too. Maybe two blocks, three blocks, and then I got to stop.
Because of, why do you have to stop?
My ankles, my feet.
Okay. What about, can you bend over, pick something up off the floor okay?
It’s kind of hard.
Okay. What about sitting? Do you have any problems sitting?
Little bit, I do, yes.
How long can you sit in a chair like this? Padded chair with the wooden
arms?
Probably 20 minutes. . . .
Now, do you have any problems with headaches?
Not as bad as I used to but I still get severe headaches.
How often?
I think it’s twice a month I get them now.
All right. Are the[y] the kind where you need to lie down in a dark room or
not?
Yeah. . . .
Okay, So, we talked about your problems with your back, your legs, your
ankles, your leg numbness, losing your balance, problems thinking or
concentrating, memory, reading. Did we cover everything? That’s not a trick
question. I just want to make sure we covered everything so the judge knows
all your impairments.
I think we basically did. Yes, sir.
R. at 32–39. Plaintiff further testified that he regularly performs “chores around the house,”
including cleaning, vacuuming, dusting, washing dishes, and doing laundry. R. at 36–37. He
shops for groceries and will work in the yard “if the landlord wants me to do something.” R. at
37. Plaintiff also testified that he is capable of lifting up to twenty pounds. R. at 38–39.
An impartial vocational expert, Melody Henry, also testified at the hearing. R. at 40–43.
She was asked by Judge Ransom:
Q: Assume for me if you would that [a hypothetical person] could perform light
work, but he’d require a job with the following restrictions: he’d need a sitstand option at will, with occasional [sic]; and no repetitive bending, twisting
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or turning; occasional crawling, squatting, kneeling and stair climbing, no air
or vibrating tools; no working around unprotected heights or moving
machinery; no working on uneven surfaces; and he’d require a job with
limited contact with the public; it would need to be simple, repetitive, regularpaced work with occasional supervision and no constant close attention to
detail. Assume those facts, in your opinion, would there be jobs in existence
in significant numbers in the regional economy that he could perform?
A: Yes. In the light and unskilled for the region —
Q: Oh, including any of his past work.
A: Looking at past work. I don’t believe that any of the past work would
accommodate the fully discretionary sit-stand option. So we’ll be looking at
other jobs that might exist in the light and unskilled. Such a worker could
perform a hand packer position; 6,000. An office machine operator position;
1,300. A sorter position; 1,700 in [the] economy.
R. at 41–42.
By decision dated September 20, 2010, Judge Ransom concluded that Plaintiff was not
disabled. R. at 13–20. Applying the five-step disability analysis, Judge Ransom found at step
one that Plaintiff has not engaged in substantial gainful activity since November 14, 2008. R. at
15. At step two, Judge Ransom found that Plaintiff has four severe impairments: (1) “status post
head and back injury arthritis”; (2) “high arches”; (3) “major depression”; and (4) “cognitive
disorder.” Id. At step three, Judge Ransom found that Plaintiff does not have an impairment or
combination of impairments that meets or medically equals one of the listings in the Code of
Federal Regulations. R. at 16–17. Judge Ransom then found that Plaintiff has the “residual
functional capacity” to perform
light work as defined in 20 CFR 416.967(b) in a job that provides for a sit/stand
option with no repetitive bending, twisting or turning, with occasional crawling,
squatting, kneeling and stair climbing; with no use of air or vibrating tools, no
work at unprotected heights or around moving machinery, with limited contact
with the general public, performing simple routine tasks; with no work that
requires constant close attention to detail, with only occasional supervision with
all work at only a regular pace with no work on uneven surfaces.
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R. at 17–18.
Regarding Plaintiff’s limitations, Judge Ransom elaborated: “After careful
consideration of the evidence, the undersigned finds that the claimant’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms; however, the
claimant’s statements concerning the intensity, persistence and limiting effects of these
symptoms are not credible.” R. at 18. Illustrating his conclusion, Judge Ransom noted: “The
claimant has not required chronic treatment for his alleged head injury and lower back pain. . . . .
Further he has sought almost no treatment during all of 2008. . . . Records from MPA as of
December 23, 2009, confirm the claimant had completed training and was now certified as a
heavy equipment operator. While Dr. [Ruben] advised against performing that job, the fact that
he was able to complete training successfully reflects an ability to learn and complete jobs
training. While the claimant sustained a significant head injury and requires restrictions, he is
able to perform restricted work.” Id.
At step four, Judge Ransom found that Plaintiff could not perform any of his previous
work. R. at 18–19. At step five, Judge Ransom found that Plaintiff could perform a significant
number of jobs available in the national economy and therefore “not disabled.” R. at 19–20.
J
Following Judge Ransom’s decision, Plaintiff requested that Defendant’s appeals council
reverse the decision. R. at 7–9. The council declined to do so, rendering a final decision
denying Plaintiff’s application on May 13, 2011. R. at 1–4. This appeal followed.
On July 1, 2011, Plaintiff filed suit in this Court. ECF No. 1. The case was referred to
Judge Randon pursuant to 28 U.S.C. § 636. ECF No. 3.
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In November 2011, Plaintiff moved to remand the case pursuant to sentence four of 42
U.S.C. § 405(g).1 ECF No. 12. Plaintiff asserted that Judge Ransom “erred in formulating a
hypothetical and resultant RFC [residual functional capacity] by understating the claimant’s
restrictions.” Pl.’s Mot to Remand 3. Because of the severity of Plaintiff’s physical and mental
limitations, he argued, Judge Ransom’s conclusion that Plaintiff was capable of performing light
work is not supported by substantial evidence.
In January 2012, Defendant moved for summary judgment. ECF No. 15. Regarding
Plaintiff’s physical limitations, Defendant asserted that the evidence demonstrates that Plaintiff is
physically capable of performing light work. “The record does contain evidence of Plaintiff’s
difficulties walking due to possible alcoholic neuropathy and high foot arches,” Defendant
acknowledged, but continued: “it also documents that on other occasions, his ability to walk was
not as impaired, which supports the ALJ’s RFC finding.” Def.’s Mot. Summ. J. 16.
Regarding Plaintiff’s mental limitations, Defendant asserted that Judge Ransom
“accommodated a potential difficulty with work complexity by limiting Plaintiff to simple
routine tasks with no constant close attention to detail, and addressed Plaintiff’s possible
problems with frequency of task completion by limiting him to only regular paced work.” Id. at
19 (internal citations omitted).
In June 2012, Judge Randon issued a report and recommendation on the cross-motions.
ECF No. 17.
Judge Randon recommended that the Court deny Plaintiff’s motion, grant
Defendant’s motion, and dismiss the complaint.
1
Sentence four provides: “The court shall have power to enter, upon the pleadings and transcript of the
record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or
without remanding the cause for a rehearing.”). § 405(g).
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Plaintiff timely filed two objections to the report and recommendation. ECF No. 18.
III
A
Plaintiff first objects that his physical limitations are not accounted for in the assessment
of his residual functional capacity. Specifically, Plaintiff argues: “Substantial evidence in the
RFC is lacking in the ability to perform the walking and balancing requirements of light work.”
Pl.’s Objections 4. Moreover, Plaintiff asserts, Judge Ransom’s conclusion regarding Plaintiff’s
“ability to walk up to 25 minutes and sit and stand for about 15-20 minutes at a time has never
been reconciled by ALJ Ransom in light of the objective evidence.” Id. at 4.
Contrary
to
Plaintiff’s
contention,
substantial
evidence
supports
Defendant’s
determination that Plaintiff possessed the residual functional capacity to perform light work with
a sit/stand option. And Plaintiff himself acknowledged an “ability to walk up to 25 minutes and
sit and stand for about 15-20 minutes. R. at 289.
“Light work,” the Code of Federal Regulations provides in pertinent part, means that a
person is capable performing a job that either “requires a good deal of walking or standing” or
“sitting most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. §
416.967(b).
In Dr. Bielawski’s first physical examination of Plaintiff, performed in November 2007,
Dr. Bielawski concluded: “this gentleman would be unable to climb stairs, ambulate on uneven
surfaces, stand for even short periods of time or ambulate for even short periods of time.” R. at
256. But Dr. Bielawski’s subsequent physical examination of Plaintiff, performed in April 2009,
Dr. Bielawski observed that marked improvement had occurred in the eighteen months since the
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doctor had last examined Plaintiff.
The doctor first recorded that Plaintiff’s self-reported
symptoms included that he “cannot walk for much more than 25 minutes and can sit and stand
for about 15–20 minutes at a time.” R. at 289. After observing Plaintiff’s movements, Dr.
Bielawski noted: “The patient had mild difficulty getting on and off the examination table, mild
difficulty heel and toe walking and mild difficulty squatting. . . . Without his boots, he had mild
difficulty doing orthopedic maneuvers. He states that he wears these heavy boots because they
give him more balance which certainly makes sense. But his exam was really unremarkable
otherwise.” R. at 290, 291.
In Dr. Brady’s examination of Plaintiff in May 2009, Dr. Brady similarly reported:
“Posture and gait were unremarkable.” R. at 294. “When asked what he does on a typical day,”
Dr. Brady continued, “[Plaintiff] reported that he wakes up at 7:00 am. Morning activities
include making coffee and talking. Afternoon activities include relaxing. He is currently tearing
a porch off [his] mobile home.” R. at 294. Tearing a porch off a mobile home suggests not that
Plaintiff is incapable of doing “light work,” but that he may be able to perform more than merely
light work.
Dr. Ruben examined Plaintiff in June 2009. Reporting his observations, Dr. Ruben wrote
that Plaintiff “ambulated independently with a normal gait showing no psychomotor disturbance.
He sat comfortably in the chair, and refused another more ergonomically convenient chair. He
made no profound gestural or postural movements. Attention span and physical stamina were
generally strong.” R. at 335.
On June 16, 2010, Mr. Seibert evaluated Plaintiff. Discussing Plaintiff’s foot problems,
Mr. Seibert reported: “Mr. Zube suffers from high arches, which cause him to have problems
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with his feet. He indicated that these problems do not cause functional limitations for him.” R.
at 379–80. Turning to Plaintiff’s head injury, Mr. Seibert continued: “Since suffering this head
injury, Mr. Zube has had reduced memory, concentration, and balance. He denied that he
stumbles or falls. ‘I walk on my tiptoes sometimes,’ Mr. Zube stated. . . . He denied that his
problems with concentration have created difficulties for him in the school, work, or social
settings.” R. at 380 (emphasis omitted).
At the hearing before Judge Ransom in August 2010, Plaintiff testified that he regularly
performs “chores around the house,” including cleaning, vacuuming, dusting, washing dishes,
and doing laundry. R. at 36–37. He also shops for groceries and will work in the yard “if the
landlord wants me to do something.” R. at 37.
In sum, no physician suggests that Plaintiff is unable to perform the walking and
balancing requirements of light work with a sit/stand option. (Dr. Bielawski, as noted, revised
his initial diagnosis in April 2009.) On the contrary, the observations of doctors Bielawski,
Brady, and Ruben, as well as Plaintiff’s own statements, suggest Plaintiff is able to perform the
walking and balancing requirements of light work with a sit/stand option.
The record contains sufficient evidence to provide a rational inference that Plaintiff’s
physical limitations do not preclude him from performing light work with a sit/stand option.
Plaintiff’s first objection will be overruled.
B
Plaintiff next objects that his mental limitations are not accurately accounted for in the
assessment of his residual functional capacity. Specifically, Plaintiff asserts, the record does not
contain substantial evidence that he is able “to perform simple, routine tasks at a regular pace.”
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Pl.’s Objections 5. Moreover, Plaintiff asserts, the assessment does not account for his “weak
and underdeveloped psychosocial skills and emotional immaturity.” Id. at 7.
Contrary
to
Plaintiff’s
contention,
substantial
evidence
supports
Defendant’s
determination that Plaintiff possessed the residual functional capacity to perform light work
“with limited contact with the general public, performing simple routine tasks; with no work that
requires constant close attention to detail, with only occasional supervision with all work at only
a regular pace.” R. at 17–18.
Dr. Bielawski performed physical examinations of Plaintiff in November 2007 and April
2009, reporting on both occassions: “The patient’s immediate, recent and remote memory is
intact with normal concentration. The patient’s insight and judgment are both appropriate.” R.
at 255, 290.
Dr. Tadeo performed a psychiatric evaluation of Plaintiff in February 2009, reporting:
“He was pleasant and cooperative with good eye contact. Thought process is goal directed. . . .
Patient has fair focus, concentration, and memory. Insight and judgment are fair.” R. at 449.
Dr. Brady performed a psychological evaluation of Plaintiff in May 2009.
After
observing Plaintiff, Dr. Brady reported: “Results of the mental status examination revealed no
abnormalities in mental capacity. Throughout the evaluation he was cooperative and attentive.
The only discrepancy discover[ed] in the interview was a denial of any history of alcohol abuse.
However, after he was informed that his chart reflected alcohol abuse he disclosed previous and
current alcohol use.” R. at 296.
Dr. Ruben performed a psychological evaluation of Plaintiff in June 2009. Finding
Plaintiff to possess average reasoning abilities, Dr. Ruben reported: “Speed of cognitive
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processing and reasoning skills was low average. Interpretation of facts was accurate if facts
remained simple. Simple problem solving scored in average ranges with few errors made.” R. at
339.
In August 2009, Plaintiff began an eight week course for heavy equipment operation. R.
at 432. Successfully completing the course, he is now certified as a heavy equipment operator.
Id. Following Plaintiff’s completion of his training, Michigan Rehabilitation Services (a state
agency) offered Plaintiff a four week “sheltered employment trial” to enable Plaintiff to earn
enough money to have his driver’s license reinstated. Id. Plaintiff successfully completed the
employment trial. Id. He has since obtained his driver’s license. R. at 29.
In January 2010, therapist Timothy Fish met with Plaintiff. R. at 426. Plaintiff informed
Mr. Fish that Plaintiff’s objectives were obtaining “a job and my own place to live.” Id. Mr.
Fish observed: “His having multiple Felonies on his criminal record will be a barrier to being
accepted into public housing. At time he has an indifferent attitude, becomes overwhelmed and
feels like giving up. This may have a negative impact on pursing employment.” Id. Mr. Fish
did not, however, report that Plaintiff’s cognitive abilities would limit his ability to obtain
employment. Id.
On June 16, 2010, Mr. Seibert evaluated Plaintiff. Assessing Plaintiff’s intelligence, Mr.
Seibert found: “Mr. Zube is functioning in the borderline range of intellectual ability. . . . [He]
has average reading recognition and reading comprehension skills. . . . [He] has average math
skills.” R. at 382, 384. Regarding Plaintiff’s work interests, Mr. Seibert continued: “Overall,
Mr. Zube is most highly interested in occupations in the mechanical vocational area.” R. at 389,
390.
Summarizing the obstacles to Plaintiff performing this type of work, Mr. Seibert
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concluded: “[Plaintiff’s] ability to work as an industrial truck operator, crane operator, or heavy
equipment operator is in doubt because of the severity of his brain injury. . . . Mr. Zube’s
strengths include his strong work ethic, his possession of a high school diploma, his average
reading recognition, reading comprehension, spelling, and math skills.” R. at 394–95. Mr.
Seibert did not report that Plaintiff would be unable to perform simple routine tasks with no work
that requires constant close attention to detail.
In sum, Plaintiff is correct that the record contains some evidence that his mental
limitations affect his ability to work. As detailed above, however, the record also contains
sufficient evidence to provide a rational inference that Plaintiff’s mental limitations do not
preclude him from performing light work involving “limited contact with the general public,
performing simple routine tasks; with no work that requires constant close attention to detail,
with only occasional supervision with all work at only a regular pace.” R. at 17–18. Plaintiff’s
second objection will be overruled.
IV
Accordingly, it is ORDERED that Plaintiff’s objections to Judge Randon’s report and
recommendation (ECF No. 18) is OVERRULED.
It is further ORDERED that the Judge Randon’s report and recommendation (ECF No.
17) is ADOPTED.
It is further ORDERED that Plaintiff’s motion to remand (ECF No. 12) is DENIED.
It is further ORDERED that Defendant’s motion for summary judgment (ECF No. 15) is
GRANTED.
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It is further ORDERED that the determination of the Commissioner of Social Security is
AFFIRMED and that Plaintiff’s complaint (ECF No. 1) is DISMISSED with prejudice.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: August 1, 2012
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on August 1, 2012.
s/Tracy A. Jacobs
TRACY A. JACOBS
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