Barnes, Jr. v. Social Security, Commissioner of

Filing 19

ORDER Adopting 18 Report and Recommendation: Denying 16 Motion for Summary Judgment filed by Social Security, Commissioner of; Granting 12 Motion for Summary Judgment filed by Andrew Barnes, Jr. and Remanding Case. Signed by District Judge Stephen J. Murphy, III. (CCoh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANDREW BARNES, JR.,
Plaintiff,

Case No. 13-cv-11466

v.

HONORABLE STEPHEN J. MURPHY, III

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
ORDER ADOPTING REPORT AND
RECOMMENDATION (document no. 18), GRANTING PLAINTIFF'S MOTION
FOR SUMMARY JUDGMENT (document no. 12), DENYING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT (document no. 16), AND REMANDING CASE
The Social Security Administration ("SSA") denied Plaintiff and claimant Andrew
Barnes' application for a period of disability, disability insurance, and supplemental security
income in a decision issued by an Administrative Law Judge ("ALJ") on January 26, 2012.
See ALJ Decision, ECF No. 9-2, at 16. After the SSA Appeals Council declined to review
the decision, Barnes appealed to this Court. The Court referred the matter to a United
States Magistrate Judge, and the parties filed cross motions for summary judgment. On
February 11, 2014, the magistrate judge issued a Report and Recommendation ("Report")
suggesting the Court grant Barnes' motion and deny the Commissioner of Social Security's
("Commissioner") motion. Report, ECF No. 18.
In the Report, the magistrate judge noted that Barnes was fifty-three at the time of the
decision and had previously worked for many years as an installer for a fence company.
Id. at 2. When considering the application, the ALJ found that Barnes had loss of vision in
his right eye, depression, and alcohol abuse, and that these conditions were severe; the
ALJ also found that Barnes had headaches, but that this condition was only mild or

minimal. When applying the five-step disability analysis, the ALJ found that these conditions
did not meet or equal a listing in the Social Security regulations. The ALJ also found that
Barnes retained the residual function capacity to perform medium work, but limited to work
that did not require bilateral vision, right peripheral vision, depth perception; limited to work
involving only simple, repetitive tasks due to Barnes' moderate limitations in his
concentration and ability to carry out detailed instructions; limited to work not involving the
general public, close proximity to co-workers, or team membership; and limited to work that
did not involve driving, operating dangerous machinery, or hazardous heights. Although the
ALJ concluded Barnes was unable to continue his past relevant work, the ALJ found there
were jobs that existed in significant numbers appropriate for his limitations. Consequently,
the ALJ found that Barnes was not entitled to benefits. Id. at 8-9 (citing ALJ Decision at 711).
After examining the pleadings and the administrative record, the Report concluded
that the ALJ did not clearly discuss how much weight was assigned to the full opinion of
consultative psychologist Dr. Nick Boneoff. Although the ALJ assigned significant weight
to Dr. Boneff's conclusion that Barnes was limited to jobs "executing a one-step procedure
on a repetitive basis," the Report noted that Dr. Boneff's conclusion was actually that
Barnes was limited to jobs "executing a one-step procedure on a repetitive basis with no
requirement for independent judgment or decision making." Id. at 11-12 (quoting A.R. at
219). The ALJ did not appear to incorporate this limitation in her hypothetical to the
vocational expert, and the Report concluded this omission erroneously affected both the
hypothetical and the vocational expert's conclusions. In fact, the vocational expert
acknowledged that if the limitation that jobs contained no requirement for independent
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judgment, there would "not be any jobs in the competitive market." Id. at 12-13 (quoting
A.R. at 67-68).
The Report acknowledged that the ALJ was not required to accord Dr. Boneff's
conclusion regarding independent judgment controlling weight, as Dr. Boneff was an
examining, not treating, source. Id. (citing Barker v. Shalala, 40 F.3d 789, 794 (6th Cir.
1994). But, because the ALJ did accord Dr. Boneff significant weight, the omission of the
independent judgment conclusion in the final hypothetical and set of limitations was likely
an error. Id. (citing Teverbaugh v. Comm'r of Soc. Sec., 258 F. Supp. 2d 702, 706 (E.D.
Mich 2003). And although the Report noted there were findings and citations to evidence
that may have justified assigning the independent judgment conclusion less weight than
the rest of Dr. Boneff's findings, id. at 14 (citing A.R. at 21, 46, 154), the ALJ's failure to
discuss the independent judgment conclusion at all meant that the reviewing court could
not determine whether the ALJ was justified in omitting the limitation in the hypothetical and
set of limitations. Id. (citing Lowery v. Commissioner, Soc. Sec. Administration, 55 F. App'x
333, 339 (6th Cir. Jan. 30, 2003)). Accordingly, the Report suggested remand.
Civil Rule 72(b) governs review of a magistrate judge's report and recommendation.
De novo review of the magistrate judge’s findings is only required if the parties “serve and
file specific written objections to the proposed findings and recommendations.” Fed. R. Civ.
P. 72(b)(2). Because neither the plaintiff nor defendant filed objections, de novo review of
the Report's conclusions is not required. Having reviewed the Report's analysis, in light of
the record, the Court finds that its conclusions are factually based and legally sound.
Accordingly, it will adopt the Report's findings, grant Barnes' motion for summary judgment,

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deny the Commissioner's motion for summary judgment, and remand the case for
proceedings not inconsistent with this opinion.
ORDER
WHEREFORE, it is hereby ORDERED that Barnes' motion for summary judgment
(document no. 12) is GRANTED. This matter is REMANDED to the Commissioner for
proceedings not inconsistent with this opinion.
IT IS FURTHER ORDERED that the magistrate judge's Report and Recommendation
(document no. 18) is ADOPTED.
IT IS FURTHER ORDERED that the Commissioner's Motion for Summary Judgment
(document no. 16) is DENIED.
SO ORDERED.

s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: March 12, 2014
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on March 12, 2014, by electronic and/or ordinary mail.
s/Carol Cohron
Case Manager

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