Gaskin v. Social Security, Commissioner of

Filing 17

ORDER denying 11 Motion for Summary Judgment; granting 13 Motion for Summary Judgment; adopting 14 Report and Recommendation on 11 Motion for Summary Judgment, 13 Motion for Summary Judgment, 14 Report and Recommendation,. Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Leonard Gaskin,
Plaintiff,

Case No. 14-10859
Hon. Victoria A. Roberts

v.
Commissioner of Social Security

Defendant.
/

ORDER: (1) ACCEPTING MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION (Doc. # 14); (2) GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT (Doc. # 13); AND (3) DENYING PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT (Doc. # 11)
I.

INTRODUCTION
This matter is before this Court on the parties’ cross-motions for summary

judgment. Leonard Gaskin (“Gaskin”) challenges a final determination by the
Commissioner of Social Security (“Commissioner”) denying his application for Social
Security Disability Insurance Benefits. This matter was submitted to Magistrate Judge
Charles Binder for report and recommendation. The Magistrate Judge recommends that
the Court grant the Commissioner’s Motion for Summary Judgment and deny Gaskin’s
Motion for Summary Judgment. He says the Commissioner’s decision is supported by
substantial evidence.
The Magistrate Judge says the relevant medical evidence, as a whole, does not
support Gaskin’s assertion that his impairments are totally disabling. Moreover, the

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Magistrate Judge cited Gaskin’s vocational rehabilitation classes and search for work as
proof that Gaskin’s condition is not totally disabling. The Magistrate Judge also noted
that the ALJ’s hypothetical questions accurately accounted for Gaskin’s impairments.
The Court: (1) ADOPTS the Magistrate Judge’s Report and Recommendation;
(2) GRANTS the Commissioner’s Motion for Summary Judgment; and, (3) DENIES
Gaskin’s Motion for Summary Judgment..
II.

FRAMEWORK FOR DISABILITY DETERMINATIONS
Under 42 U.S.C. § 423, a wage earner suffering from a disability is entitled to

disability benefits. The act defines disability as an “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
The claimant bears the burden to prove entitlement to benefits. Dice v. Comm'r of
Soc. Sec., No. 12-CV-11784, 2013 WL 2155528, at *6 (E.D. Mich. Apr. 19, 2013). To
determine if a person is disabled and eligible for benefits, the Commissioner uses a fivestep sequential analysis:
Step One: If the claimant is currently engaged in substantial gainful
activity, benefits are denied without further analysis.
Step Two: If the claimant does not have a severe impairment or
combination of impairments, that significantly limits ... physical or mental
ability to do basic work activities, benefits are denied without further
analysis.
Step Three: If plaintiff is not performing substantial gainful activity, has a
severe impairment that is expected to last for at least twelve months, and
the severe impairment meets or equals one of the impairments listed in
the regulations, the claimant is conclusively presumed to be disabled
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regardless of age, education or work experience.
Step Four: If the claimant is able to perform his or her past relevant work,
benefits are denied without further analysis.
Step Five: Even if the claimant is unable to perform his or her past
relevant work, if other work exists in the national economy that plaintiff can
perform, in view of his or her age, education, and work experience,
benefits are denied.
Id. (citing 20 C.F.R. § 404.1520.) For the first four steps, the claimant bears the burden
to prove the severity of impairment and that it precludes the performance of work.
Spreeman v. Comm'r of Soc. Sec., No. 12-12641, 2013 WL 5212023, at *2 (E.D. Mich.
Sept. 16, 2013). At the fifth step, the burden shifts to the Commissioner to show that
other jobs exist in the national economy that the claimant is qualified to perform despite
impairment. Id. To meet this burden, the Commissioner’s decision must be supported by
substantial evidence. Varley v. Sec'y of Health & Human Servs., 820 F.2d 777, 779 (6th
Cir. 1987). Substantial evidence may be produced through reliance on the testimony of
a vocational expert in response to a hypothetical question, but only if the question
accurately portrays the claimant’s individual physical and mental impairments. Id.
III.

STANDARDS OF REVIEW
A.

Substantial Evidence

A person may seek judicial review of any final decision of the Commissioner of
Social Security; however, the findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive. 42 U.S.C. § 405.
“Substantial evidence is more than a scintilla of evidence but less than a
preponderance and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Brainard v. Sec’y of Health & Human Servs., 889
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F.2d 679, 681 (6th Cir. 1989) (citing Consol. Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)). Substantial evidence exists when a reasonable mind could accept the
evidence as adequate to support the challenged conclusion, even if that evidence could
also support the opposite conclusion. Casey v. Sec’y of Health and Human Servs., 987
F.2d 1230, 1233 (6th Cir. 1993). And, if the Commissioner’s decision is supported by
substantial evidence, it must stand, regardless of whether the Court would resolve the
disputed facts differently. Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir. 1993).
“In determining whether the Secretary's factual findings are supported by
substantial evidence, a court must examine the evidence in the record taken as a
whole, and take into account whatever in the record fairly detracts from its weight.”
Id. (citations omitted). Thus, in reviewing the Commissioner’s decision, the court may
consider only the record that was before the ALJ, and cannot review the evidence de
novo, weigh the evidence, or make credibility determinations. See, id.
B.

Reviewing Report and Recommendation

If a party properly objects to a magistrate judge’s report and recommendation, a
court will “make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made. A court may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge. 28 U.S.C. § 636. Moreover, the court may receive further evidence or
recommit the matter to the magistrate judge with instructions. Id. If a general objection is
made, or an objection merely reiterates the same arguments made by the objecting
party in its original papers, then the court will review the relevant portion of the report
and recommendation for clear error. Petersen v. Astrue, No. 3:11-CV-0116 GTS/VEB,
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2012 WL 4449663 (N.D.N.Y. Sept. 25, 2012).
III.

ANALYSIS
A.

Administrative Record

The ALJ sufficiently summarizes the administrative record and relevant medical
records. The ALJ’s summary is incorporated by reference here. The Court relies on
additional facts and history where noted.
B.

Gaskin’s Objections

Gaskin says the Court should reject the Magistrate Judge’s recommendation,
reverse the Commissioner, grant his Motion for Summary Judgment, and award
benefits from the application date, or, in the alternative, remand the case for further
assessment. He says the Magistrate Judge: (1) failed to address the ALJ’s failure to
evaluate Gaskin’s work capabilities under 20 C.F.R. § 404.1520a(C)(2); (2) failed to
address the issue of res judicata as it pertains to the Commissioner’s previous finding
that Gaskin was unable to perform relevant past work; (3) erred in finding that Gaskin
worked as a sorter; (4) erred in concluding the hypothetical questions posed to the VE
accurately described Gaskin’s limitations; (5) erred in finding that the ALJ decision is
supported by substantial evidence; and (6) erroneously reported that Gaskin alleged he
was totally disabled.
1.

20 C.F.R. § 404.1520a(C)(2)

Gaskin says the Magistrate Judge and the ALJ failed to evaluate Gaskin’s work
capabilities under 20 C.F.R. § 404.1520a(C)(2), and whether Gaskin could work on a
sustained basis. The Court disagrees. The ALJ followed the proper procedure and

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made a determination under 20 C.F.R. § 404.1520a(C)(2).
20 C.F.R. § 404.1520a identifies the procedure the ALJ must follow in evaluating
mental disability claims. Boyd v. Apfel, 239 F.3d 698, 705 (5th Cir. 2001). According to
20 C.F.R. § 404.1520a(c)(2), if a mental impairment is severe under 20 C.F.R. §
404.1520a(c)(1), the ALJ must “determine if it meets or equals a listed mental disorder
under 20 C.F.R. pt. 404, subpt. P, app. 1, 12.00–12.09.” Id. “If the impairment is severe,
but does not reach the level of a listed disorder, then the ALJ must conduct a residual
functional capacity assessment” under 20 C.F.R. § 404.1520a(c)(3). Id. Section
404.1520a(c)(3) examines the four functional areas in which the ALJ rates the degree of
functional limitation: activities of daily living; social functioning; concentration,
persistence, or pace; and episodes of decompensation.
Here, the ALJ applied the five-step sequential analysis, and concluded that
Gaskin was not disabled.
At step one, the ALJ found that Gaskin has not engaged in substantial gainful
activity since July 7, 2011.
At step two and three, the ALJ determined that Gaskin had multiple severe
impairments: affective disorder and a history of heroin dependence and abuse. As
required by § 404.1520a(C)(2), the ALJ examined the severity of the impairments, and
concluded that the impairments did not meet or exceed the criteria of listed disorders
12.04 (affective disorder) or 12.09 (substance addiction disorder) in 20 C.F.R. Part 404,
Subpart P, Appendix 1.
The ALJ proceeded to examine Gaskin’s activities of daily living; social
functioning; concentration, persistence, or pace; and episodes of decompensation. The
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ALJ determined Gaskin did not have episodes of decompensation, but he had a mild
restriction on his daily living activities, and moderate restrictions on his social
functioning, concentration, persistence, and pace.
The ALJ did not believe Gaskin’s testimony concerning the intensity, persistence,
and limiting effects of his symptoms. The ALJ cited numerous medical reports from
Gaskin’s treating psychiatrist Dr. Nadimpalli Raju. The reports stated that Gaskin was in
therapy and taking a new medication, Trazodone, to combat depressive symptoms. He
was doing well and responding to the therapy; he did not suffer from adverse side
effects from the medication.
At step four, the ALJ concluded Gaskin was able to perform past relevant work
as a sorter; but, in the alternative, at step five, the ALJ found, based on the testimony of
the VE, there are jobs that exists in significant numbers in the national economy that
Gaskin can perform, such as a cleaner or laborer, based on his age, education, work
experience and residual functional capacity.
The ALJ followed the proper procedure and analyzed Gaskin under 20 C.F.R. §
404.1520a(C)(2).
2.

Res Judicata and Step Four Determination

Finding number four, that Gaskin could perform past work as a sorter, was
erroneous according to Gaskin, because the doctrine of res judicata makes the
Commissioner’s previous determination from 2009 that Gaskin could not perform past
work as a sorter binding on the current proceeding. Moreover, Gaskin says it was error
for the ALJ to find that he worked as a sorter because the sorter activity was done on an
unpaid voluntary basis. Gaskin’s objection lacks merit.
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Errors at step four are considered harmless when the ALJ makes an alternative
determination at step five, and finds that a claimant can perform work that exists in
significant numbers in the national economy. Rice v. Comm'r of Soc. Sec., No.
12-CV-15690, 2014 WL 521045, at *8 (E.D. Mich. Feb. 10, 2014) (citing Dunnett v.
Comm'r of Soc. Sec., No. 12–10930, 2013 WL 4604445, at *15 (E.D.Mich. Aug.29,
2013). See also, Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir.2008). Here, the
ALJ found that Gaskin could perform past work as a sorter; however, the analysis did
not end there. The ALJ made a step five determination and found that Gaskin could
perform work as a laborer or cleaner. Thus, while it may be true that res judicata applies
to the ALJ’s step four decision, and it was error to find that Gaskin could perform that
past work, any error committed by the ALJ at step four was rendered harmless by the
step five determination.
3.

Hypothetical

Gaskin says the hypothetical posed to the VE did not accurately account for
Gaskin’s limitations. Specifically, Gaskin says the hypothetical failed to account for his
moderate difficulties in concentration, persistence, and pace. The Court disagrees.
A vocational expert's testimony concerning the availability of suitable work may
constitute substantial evidence where the testimony is elicited in response to a
hypothetical question that accurately sets forth the plaintiff's physical and mental
impairments. Smith v. Halter, 307 F.3d 377, 378 (6th Cir. 2001). However, a
hypothetical question “need not incorporate a listing of the claimant's medical
conditions.” Infantado v. Astrue, 263 F. App'x 469, 476 (6th Cir. 2008). Instead, the
vocational expert's testimony must take into account the claimant's functional
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limitations. Id. And, the court must examine the record as a whole and determine if
substantial evidence supports the ALJ's decision. Mortzfield v. Comm'r of Soc. Sec., No.
12-15270, 2014 WL 1304991, at *16 (E.D. Mich. Mar. 31, 2014).
To account for moderate concentration, persistence, and pace deficiencies, an
“ALJ is not required to include the phrase ‘moderate deficiencies in concentration,
persistence, and pace’ or other talismatic language in the hypothetical.” Id. And, “while
neither ‘simple routine tasks’ nor ‘a low stress environment,’ considered piecemeal,
would account for moderate concentrational deficiencies, these limitations, along with a
work atmosphere requiring ‘minimal changes’ may be read cumulatively to encompass
his moderate impairments.” Hetherington v. Comm'r Of Soc. Sec., No. 08-11133, 2009
WL 1803238, at *5 (E.D. Mich. June 23, 2009).
The ALJ proposed multiple hypothetical questions to the VE that were
progressively more restrictive. The last hypothetical asked whether jobs are available
for an individual who was Gaskin’s age, with the same education and past work
experience. The person would be able to tolerate occasional contact with supervisors,
coworkers, and the public. Also, the person would be able to perform a low stress job
with occasional changes that involved simple, routine, and repetitive work. (Tr. 46 - 47).
The VE replied that the sorter position would be available, as well as two other unskilled
jobs: cleaner or laborer. Id. Unskilled work is defined as “work which needs little or no
judgment to do simple duties that can be learned on the job in a short period of time.” 20
C.F.R. § 404.1568.
The hypothetical completely accounted for Gaskin’s limitations. Thus, it was
proper. The VE’s testimony in response to the hypothetical constitutes substantial
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evidence.
4.

Substantial Evidence

Gaskin says the ALJ’s decision is not supported by substantial evidence. The
Court disagrees. The ALJ cites extensively to medical reports from Gaskin’s treating
psychiatrist Dr. Raju. The ALJ noted that on six different occasions Dr. Raju wrote that
Gaskin was doing well with his medications. Also, Dr. Raju noted Gaskin responded well
to supportive therapy and his depressive symptoms were under better control. Dr.
Raju’s reports demonstrate that Gaskin had average intelligence; he was in contact with
reality; oriented as to time, person, and place; and, his gross memory was intact.
Moreover, he was aware of right and wrong and the consequences of behavior. Thus,
there exists objective medical evidence throughout Gaskin’s record to support the ALJ’s
conclusion. And, as noted, the VE’s testimony constitutes substantial evidence.
Therefore, the ALJ’s decision is supported by substantial evidence.
5.

Other Objections

The Court evaluated Gaskin’s other objections; they are without merit.
IV.

CONCLUSION
The Court ADOPTS the Magistrate Judges Report and Recommendation;

GRANTS the Commissioner’s Motion for Summary Judgment; and, DENIES Gaskin’s
Motion for Summary Judgment.
IT IS ORDERED.

S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
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Dated: January 21, 2015
The undersigned certifies that a copy of this
document was served on the attorneys of
record by electronic means or U.S. Mail on
January 21, 2015.
S/Carol A. Pinegar
Deputy Clerk

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