Habowski v. Social Security, Commissioner of

Filing 25

OPINION AND ORDER OVERRULING DEFENDANTS OBJECTIONS [#23], ADOPTING MAGISTRATE JUDGES REPORT AND RECOMMENDATION [#22], GRANTING PLAINTIFFS MOTION FOR SUMMARY JUDGMENT [#18], DENYING DEFENDANTS MOTION FOR SUMMARY JUDGMENT [#20], AND REMANDING CASE FOR FURTHER PROCEEDINGS Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARK HABOWSKI,
Plaintiff,
Case No. 14-cv-11817
HON. GERSHWIN A. DRAIN
v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
_______________________________/
OPINION AND ORDER OVERRULING DEFENDANT’S OBJECTIONS [#23],
ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION [#22],
GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [#18], DENYING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [#20], AND
REMANDING CASE FOR FURTHER PROCEEDINGS

I. INTRODUCTION
This matter is before the Court on the Parties’ Cross-Motions for Summary Judgment as
to Plaintiff Mark Habowski’s request for judicial review of Defendant Commissioner of Social
Security’s (the “Commissioner”) denial of his application for disability insurance benefits.
Plaintiff challenges the decisions of both the Commissioner and the Administrative Law Judge
(“ALJ”) to deny his claim for disability benefits.
Plaintiff argues that “substantial evidence establishes that Plaintiff is suffering from
impairments which render him unable to work or to be employed, and Plaintiff is disabled under
the meaning of the Social Security Act.” Compl., at 2. Plaintiff likewise contends that “[t]he

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findings, actions and decisions of the Commissioner on all levels herein were not based upon
substantial evidence[.]” Compl., at 2.
The matter was referred to Magistrate Judge Michael J. Hluchaniuk, who issued a Report
and Recommendation on May 20, 2015. In the Report and Recommendation, Magistrate Judge
Hluchaniuk recommends that the Court grant Plaintiff’s Motion for Summary Judgment, and
deny Defendant’s Motion for Summary Judgment.

Magistrate Judge Hluchaniuk further

recommends that the Court reverse the Commissioner’s findings, and remand this case for
further proceedings.
The Commissioner now challenges the Magistrate Judge’s Report and Recommendation,
specifying three objections. Plaintiff has filed a Response to the Commissioner’s objections.
After a review of all the parties’ briefs, and taking into consideration the administrative record in
its entirety, including the ALJ’s findings, the Court accepts and adopts the Magistrate Judge’s
Report and Recommendation.
II. FACTUAL BACKGROUND
Plaintiff is a resident of Bay County, Michigan. Plaintiff, formerly employed as a welder,
routinely lifted beams weighing upward from 40 to 50 pounds. On August 28, 2008 (the “onset
date”), Plaintiff allegedly began to suffer disability from various physical ailments. On July 5,
2011, Plaintiff applied for disability insurance and supplemental security income benefits. The
Commissioner initially denied Plaintiff’s claims on November 3, 2011.
On October 11, 2012, Administrative Law Judge (“ALJ”) Christopher R. Inama
conducted a hearing concerning the denial of Plaintiff’s claim for disability. On November 16,
2012, the ALJ also denied Plaintiff’s disability claim, finding that Plaintiff was not disabled.

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For disability claims, “[t]he Social Security Act requires the Secretary to follow a ‘fivestep sequential process.’” Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2011)
(citing Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990)). At Step One of the five-step
disability analysis, ALJ Inama found that Plaintiff had not engaged in substantial gainful
employment since the August 28, 2008 onset date. At Step Two, the ALJ found that Plaintiff
suffered from degenerative disc disease of the cervical spine with ulnar neuropathy;1 the ALJ
also found that Plaintiff’s back and shoulder pain, carpal tunnel syndrome, and depression were
not severe.
At Step Three of the disability analysis, the ALJ found no evidence that Plaintiff’s
impairments satisfied one of the listings in the regulations. In particular, the ALJ found that
Plaintiff had no symptoms that satisfied the criteria of Listing 1.04—disorders of the back. The
ALJ did not consider criteria in Listing 11.04, which addresses the central nervous vascular
system.
Additionally, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to
perform light work. However, the ALJ determined that Plaintiff was unable to “frequently climb
ramps, stairs, ladders, ropes, and scaffolds, and balance, kneel, stoop, crouch, and crawl[,]” in the
performance of such work.2
At Step Four, the ALJ found that Plaintiff could not perform his past gainful employment
as a welder. In Step Five, the ALJ determined, however, that jobs existed in sufficient numbers
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“Ulnar neuropathy is a ‘complex [set] of symptoms resulting from injury or
compression of the ulnar nerve at the elbow, with pain and numbness along the ulnar aspect of
the hand and forearm, and weakness in the arm.’” Def.’s Mot. Summ. J., n.2 (quoting Dep’t of
Health & Human Servs., No. 04-1147V, 2006 WL 2052379, at *4, n.7 (Fed. Cl. July 5, 2006)).
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Indeed, in his report, Magistrate Judge Hluchaniuk found the ALJ’s lack of
consideration for this listing proper as Plaintiff neither mentioned this listing in the
administrative proceedings nor did Plaintiff point “to record evidence that would raise a
substantial question as to whether he satisfied [the] diagnostic criteria.” ECF No. 22, at 20-21.
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that Plaintiff could perform, considering his age, education, experience, and RFC. At the time of
the ALJ’s decision, Plaintiff was 52 years old, held a high school diploma, and, as mentioned
above, had been employed as a welder until the onset date of the conditions that support his
disability claim. Since the onset date, Plaintiff has worked a part-time job that allegedly allows
him to sit or stand at will. Plaintiff asserts that he has not been employed full-time since August
2008, when he was laid off from his job at a factory.
On March 8, 2014, the Appeals Council denied Plaintiff’s request for review. Plaintiff
has exhausted all administrative remedies, and this Court, therefore, has exclusive jurisdiction
for judicial review under 42 U.S.C. §§ 405(g) and 1383(c)(3). Accordingly, Plaintiff proceeded
to properly file a complaint in this court.
The parties have filed cross-motions for summary judgment.

Magistrate Judge

Hluchaniuk submitted a Report and Recommendation (the “report”), recommending that the
Court grant Plaintiff’s summary judgment motion, and deny the same of the Commissioner.
Magistrate Judge Hluchaniuk also recommended reversing the ALJ’s findings and remanding the
matter for further proceedings. On June 2, 2015, the Commissioner filed three objections to the
magistrate judge’s report.
III. STANDARD OF REVIEW
Federal district courts have original jurisdiction to review the Commissioner's final
administrative decision under 42 U.S.C. § 405(g). Hamper v. Comm’r of Soc. Sec., 714 F.Supp.
2d 693, 702 (E.D. Mich. 2010). Pursuant to Federal Rule of Civil Procedure 72(b)(3), the Court
reviews de novo those portions of the Magistrate Judge’s Report & Recommendation to which
timely and specific objections have been filed. Lyons v. Comm’r of Soc. Sec., F.Supp. 2d 659,
661 (E.D. Mich. 2004).

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Judicial review of social security appeals is limited.

The court “must affirm the

Commissioner's conclusions absent a determination that the Commissioner has failed to apply
the correct legal standard or has made findings of fact unsupported by substantial evidence in the
record.” Id.; 42 U.S.C. § 405(g); see also Elam ex rel. Golay v. Comm'r of Soc. Sec., 348 F.3d
124, 125 (6th Cir. 2003); Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997)).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” McLean v. Comm’r of Soc. Sec., 360 F.Supp. 2d 864, 868 (E.D. Mich.
2005) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971); Lashley v. Sec'y of Health &
Human Servs., 708 F.2d 1048, 1053 (6th Cir. 1983)). Furthermore, “[t]his Court may not base
its decision on a single piece of evidence and disregard other pertinent evidence when evaluating
whether substantial evidence in the record exists.” Id. (citing Hephner v. Mathews, 574 F.2d
359, 362 (6th Cir. 1978)).
“Thus, where the Commissioner's decision is supported by substantial evidence, it must
be upheld even if the record might support a contrary conclusion.” Id. (citing Smith v. Sec'y of
Health & Human Servs., 893 F.2d 106, 108 (6th Cir. 1989)). This is so because “the substantial
evidence standard ‘presupposes that there is a zone of choice within which the decisionmakers
can go either way, without interference by the courts.’” Id. (citing Mullen v. Bowen, 800 F.2d
535, 545 (6th Cir. 1986) (en banc) (internal quotes and citations omitted)). For this reason, when
making a determination whether substantial evidence supports the ALJ’s decision, “we do not try
the case de novo, resolve conflicts in evidence, or decide questions of credibility.” Ulman v.
Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012) (quoting Bass v. McMahon, 499 F.3d
506, 509 (6th Cir. 2007)).

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IV. DISCUSSION
The Commissioner objects to the Magistrate Judge’s Report and Recommendation on
three grounds. In the first objection, the Commissioner argues that the ALJ’s failure to cite a
medical opinion in Step Three of the disability analysis does not require remand for further
proceedings. Second, the Commissioner objects to the magistrate judge’s finding that the ALJ’s
failure to consider Dr. R. Scott Lazzara’s evaluation requires remand. Finally, the Commissioner
objects to the magistrate judge’s finding that the ALJ should have based Plaintiff’s RFC on a
medical opinion. The Court reviews each of the Commissioner’s objections in turn.
A. Objection 1: The lack of an opinion on medical equivalence was harmless.
In his Report and Recommendation, the magistrate judge found that the ALJ’s failure to
cite a medical opinion, when finding that Plaintiff did not suffer from an impairment listed in the
regulations (Step Three of the disability analysis), requires remand for further proceedings. The
Commissioner objects to the finding that such an omission requires remand.
The Commissioner relies on Heston v. Commissioner of Social Security, 245 F.3d 528,
535-36 (6th Cir. 2001), for the proposition that the ALJ’s failure to cite a medical opinion does
not require remand. The Commissioner contends that Heston requires that Plaintiff must first
show harm from the ALJ’s failure to support its finding with medical opinion before a remand is
imposed.
However, this case is easily distinguishable from Heston. In Heston, the court found that
the ALJ did not commit reversible error when it did not rely on a three-page summary of
plaintiff’s medical history compiled by one particular medical examiner among many. Heston,
245 F.3d at 535. In making this determination, the court panel in Heston reviewed the credibility

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and weight of the medical examiner in question and his medical assessments through “harmless
error” analysis. Id.
Here, however, the magistrate judge found no medical expert opinion evidence at all.
The magistrate judge refers to this as a “serious error.” ECF No. 22, at n.2. While the
Commissioner is correct in that harmless error review applies to credibility determinations,
Ulman v. Commissioner of Social Security, 693 F.3d 709, 714 (6th Cir. 2012), in the matter at
bar, there are no credibility determinations to review because there is no medical opinion
evidence. The complete lack of medical opinion evidence problem is a threshold requirement, of
which the magistrate judge properly identifies. See Retka v. Comm’r of Soc. Sec., No. 93-40494,
1995 WL 697215, at *2 (6th Cir. Nov. 22, 1995) (“[T]he opinion of a medical expert is required
before a determination of medical equivalence is made.”); see also Fensterer v. Comm’r of Soc.
Sec., No. 12-13166, 2013 WL 4029049, at *12 (E.D. Mich. Aug. 7, 2013) (“The great weight of
authority holds that a record lacking any medical advisor opinion on equivalency requires a
remand.”).

For this reason, the Court finds that the case shall be remanded for further

proceedings on the issue of medical equivalence in regard to Plaintiff’s physical impairments,
which should include the ALJ’s consideration of medical opinion evidence.
B. Objection 2: The ALJ’s omission of Dr. Lazzara’s overhead reaching limitation was
harmless, and Objection 3: There was no need for the ALJ to base his RFC on a
medical opinion; regardless, the ALJ relied in part on Dr. Lazzara’s finding that
Plaintiff’s overall impairment was only mild.”
In his report, Magistrate Judge Hluchaniuk asserts that the ALJ also failed to take into
account medical expert opinion when he made Plaintiff’s RFC determination.

The

Commissioner, however, objects to the magistrate judge’s finding that the ALJ’s failure to
mention Dr. Lazzara’s assessment of Plaintiff’s physical restrictions—i.e., Plaintiff’s ability to
reach overhead—requires remand. Additionally, and as a final matter, the Commissioner objects

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to the magistrate judge’s finding that the ALJ committed error because the ALJ did not base
Plaintiff’s RFC on a medical opinion. The Commissioner contends that the ALJ was not
required to base Plaintiff’s RFC on a medical opinion, and thus, no error was sustained.
Magistrate Judge Hluchaniuk, in his Report and Recommendation, stated that
Here, although the examining physician opined that plaintiff was not
capable of any overhead reaching, the ALJ seemingly overlooked that
limitation in formulating both the RFC and the hypothetical posted to the
[Vocational Expert (“VE”)], articulating his belief that there were no
medical findings as to residual functional capacity. No treating physician
or any other consulting or examining physician offered any other opinions
regarding plaintiff’s functional limitations.
Upon review of the record, the magistrate judge is correct in his assessment that, “we are
left with the circumstances of the ALJ interpreting raw medical data without consideration of an
expert medical opinion.”

ECF No. 22, at 25.

It is apparent that the ALJ mistakenly

“succumb[ed] to the temptation to play doctor and ma[d]e their own medical findings.” Simpson
v. Comm’r of Soc. Sec., 355 F. App’x 181, 194 (6th Cir. 2009) (quoting Rohan v. Chater, 98 F.3d
966, 970 (7th Cir. 1996)).
The Commissioner again cites Heston to suggest that Plaintiff has the burden of showing
that he suffered harm from the ALJ’s omission to consider Dr. Lazzara’s medical opinion.
However, harmless error analysis is not triggered by mere error; the purpose of the analysis is to
review, in particular, an ALJ’s credibility determinations. Ulman, 693 F.3d at 714.

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analysis neither buttresses nor substitutes the ALJ’s required function to make findings based on
substantial evidence, 42 U.S.C. § 405(g), and within his or her competence. See Simpson, 355 F.
App’x at 194 (6th Cir. 2009). Because the ALJ discards the sole medical opinion evidence
concerning Plaintiff’s RFC, the issue should be remanded for further proceedings.

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V. CONCLUSION
For these reasons, the Commissioner’s objections [#23] are OVERRULED. The Court
ADOPTS Magistrate Judge Hluchaniuk’s Report and Recommendation [#22].
Accordingly, Plaintiff’s Motion for Summary Judgment is GRANTED. Defendant’s
Motion for Summary Judgment is DENIED.
The Court HEREBY REVERSES the Commissioner’s findings, and the case is
REMANDED for further proceedings.
SO ORDERED.

Dated: July 20, 2015

/s/Gershwin A Drain
GERSHWIN A. DRAIN
US DISTRICT COURT JUDGE

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