Ford v. Social Security, Commissioner of
ORDER accepting 15 Report and Recommendation, Denying 9 Motion to Remand and granting 13 Motion for Summary Judgment. Signed by District Judge George Caram Steeh (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 13-CV-14478
HON. GEORGE CARAM STEEH
MAG. JUDGE PATRICIA T. MORRIS
COMMISSIONER OF SOCIAL
ORDER ACCEPTING MAGISTRATE
JUDGE'S REPORT AND RECOMMENDATION [DOC. 15]
This matter is before the court on plaintiff Michael Ford’s motion to remand
pursuant to 42 U.S.C. § 405(g), and defendant’s motion for summary judgment as to
plaintiff’s claim for judicial review of defendant Commissioner of Social Security's
decision that he is not entitled to social security disability and supplemental security
income benefits. On January 27, 2015, Magistrate Judge Morris issued a report and
recommendation recommending that plaintiff's motion for remand be denied and that
defendant’s motion for summary judgment be granted. The court has reviewed the file,
record, and magistrate judge's report and recommendation. Plaintiff has filed
objections to that report (Doc. 16) which this court has considered.
In his objections, plaintiff complains that the administrative law judge (“ALJ”) (1)
failed to consider the non-union of his fractured right ankle at his step two analysis, (2)
failed to consider that same condition at his step three analysis, and (3) failed to
accurately portray his residual functional capacity (“RFC”) because that determination
failed to consider his need to elevate his leg and use a cane. For the reasons set forth
below, this court shall overrule plaintiff’s objections and accept and adopt the
magistrate judge’s report.
The facts of this case are set forth in the magistrate judge’s report and
recommendation and upon review of the record, the court accepts the recitation of the
facts set forth there as the factual findings of this court.
STANDARD OF LAW
“A judge of the court shall make a de novo determination of those portions of a
report or specified proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1). "A judge of the court may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate." Id. A district court
may affirm, modify, or reverse the Commissioner’s decision, with or without remand.
See 42 U.S.C. § 405(g). Findings of fact by the Commissioner are conclusive if
supported by substantial evidence. Id. The court must affirm the decision if it is "based
on [an appropriate] legal standard and is supported by substantial evidence in the
record as a whole." Studaway v. Sec’y of Health & Human Servs., 815 F.2d 1074,
1076 (6th Cir. 1987). Substantial evidence is “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 v. Comm'r of Soc. Sec., 486 F.3d 234,
241 (6th Cir. 2007) (internal quotation marks and citation omitted); see also Cutlip v.
Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (internal citations
omitted) (explaining that if the Commissioner's decision is supported by substantial
evidence, “it must be affirmed even if the reviewing court would decide the matter
differently and even if substantial evidence also supports the opposite conclusion”);
Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir.1986) (en banc) (noting that the
substantial evidence standard “presupposes ... a zone of choice within which the
decisionmakers can go either way, without interference by the courts” (internal
quotation marks and citation omitted)).
Whether the ALJ erred by failing to consider plaintiff’s fractured ankle at step two
Plaintiff argues that the ALJ failed to consider at step two that the fracture of his
ankle had not healed. The ALJ found, however, that plaintiff suffered a severe
impairment at step two based on his findings of plaintiff’s conditions of “cellulitis in the
right ankle, major depressive disorder, personality disorder [,], and polysubstance
dependence.” Because the ALJ found some of plaintiff’s conditions qualified as severe
impairments at step two, plaintiff “cleared” step two; thus, the ALJ’s failure to find that
other conditions also qualified him is “legally irrelevent,” and does not constitute
reversible error. Anthony v. Astrue, 266 F. App’x 451, 457 (6th Cir. 2008).
Whether the ALJ erred by failing to consider plaintiff’s fractured ankle at step
Plaintiff argues that the ALJ erred by not considering his unhealed fracture at
step three which he claims amounted to an impairment under Listing 1.02. An ALJ is
not required to consider every Listing or to consider Listings that the claimant “clearly
does not meet.” Sheeks v. Comm’r of Soc. Sec., 544 F. App’x 639, 641 (6th Cir. 2013).
In addition, where the ALJ discusses the step three analysis in other sections of her
decision, the court may overlook the omission at step three as harmless error. White v.
Colvin, No. 4:12-cv-11600, 2013 WL 5212629, *7 (E.D. Mich. Sept. 16, 2013). In this
case, plaintiff failed to demonstrate that his ankle fracture amounted to a listed
impairment under 1.02. The ALJ determined at step four that plaintiff was able to
ambulate using a cane and did not meet the durational requirement under 20 C.F.R. §
404.1509 as he did not show that the condition had lasted or was expected to last for a
continuous period of at least 12 months. The ALJ’s determination was supported by
the medical evidence of record including evidence that plaintiff was walking unassisted
as of January, 2012, and that since he had hardware removal surgery in November,
2011, he had only subjective complaints of pain. Because plaintiff does not meet the
durational or inability to ambulate effectively requirements of Listing 1.02, substantial
evidence supports the ALJ’s determinations at step three.
Whether the RFC was supported by substantial evidence
Finally, plaintiff argues that the RFC determination was erroneous because it
failed to account for the fact that he needed to elevate his leg and use a cane. Plaintiff
argues that this limitation should have been considered based on his self-reporting and
need not be authored by a medical source. “It is well established that an ALJ may pose
hypothetical questions to a vocational expert and is required to incorporate only those
limitations accepted as credible by the finder of fact.” Casey v. Sec’y of Health &
Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993) (per curiam). The ALJ considered
plaintiff’s testimony regarding his claim of elevating his leg thirty to forty minutes at a
time for eight to twelve hours a day, but found that plaintiff’s claims as to the intensity,
persistence and limiting effects of his symptoms was not credible to the extent that they
conflicted with his RFC assessment, which limited his condition to “sedentary.” The
magistrate judge found that nothing in the medical record supported plaintiff’s claim that
he needed to keep his leg elevated. In his objections, plaintiff does not rely on any
medical record evidence, but argues that the RFC assessment should have included
this limitation based on his testimony. The ALJ ruled that plaintiff’s testimony as to the
severity of his symptoms was not credible. This court does not decide questions of
credibility. Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2008); Rogers v. Comm'r of
Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007) (“It is of course for the ALJ, and not the
reviewing court, to evaluate the credibility of witnesses, including that of the claimant”).
As to plaintiff’s claim the RFC should have noted that plaintiff needed to use a cane, it
is unclear that such a limitation was not already accounted for in the determination that
plaintiff was limited to “sedentary” work. Moreover, the evidence of record indicated
that plaintiff was only prescribed a cane for short-term recovery following his surgery,
and nothing in the record showed that plaintiff continued to require a cane beyond that
recovery period. Accordingly, based on the lack of medical evidence supporting
plaintiff’s claim that he needed to elevate his leg or use a cane and the ALJ’s
determination that plaintiff’s claims as to the severity of his limitations was not credible,
this court cannot find that the ALJ’s determination as to his RFC was erroneous.
IT IS ORDERED that the court ACCEPTS and ADOPTS the magistrate judge's
report and recommendation (Doc. 15).
IT IS FURTHER ORDERED that the Commissioner’s motion for summary
judgment (Doc. 13) is GRANTED, plaintiff’s motion for remand (Doc. 9) is DENIED,
plaintiff’s objections (Doc. 16) are OVERRULED, and plaintiff’s claim is DISMISSED
Dated: March 11, 2015
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
March 11, 2015, by electronic and/or ordinary mail.
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