Jimenez v. Social Security

Filing 19

OPINION AND ORDER denying 13 Motion for Summary Judgment; granting 16 Motion for Summary Judgment; adopting 17 Report and Recommendation. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CLARENCE JIM JIMENEZ,
Plaintiff,
v.

Civil Action No. 14-CV-13298
Honorable Patrick J. Duggan

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
_________________________/
OPINION AND ORDER (1) ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION, (2) OVERRULING PLAINTIFF’S
OBJECTIONS, (3) DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT, and (4) GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
This is a social security case. Plaintiff Clarence Jim Jimenez appeals from
the final determination of the Commissioner of Social Security that he is not
disabled and, therefore, not entitled to disability insurance benefits and
supplemental security income.

The matter was referred to Magistrate Judge

Patricia T. Morris for all pretrial proceedings. The parties filed cross-motions for
summary judgment. On September 1, 2015, Magistrate Judge Morris issued a
Report and Recommendation (“R&R”), recommending that Defendant’s motion be
granted and that Plaintiff’s motion be denied. Plaintiff filed objections to the

R&R. The Court reviews de novo those portions of the R&R to which a specific
objection has been made. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Plaintiff advances three objections to the R&R. All of them involve the
argument that the ALJ failed to incorporate the full extent of Plaintiff’s limitations
into his residual functional capacity (“RFC”). Specifically, in his first objection,
Plaintiff argues that the ALJ failed to accommodate in the RFC limitations
stemming from Plaintiff’s knee impairment; in his second objection, Plaintiff
argues that the ALJ failed to consider evidence relating to Plaintiff’s depression
and incorporate limitations resulting from that condition into his RFC; and in his
third objection, Plaintiff argues that the RFC does not accommodate the full extent
of Plaintiff’s limitations because it does not take into account Plaintiff’s inability to
withstand stress. With respect to the third objection, Plaintiff contends that the
jobs that the vocational expert testified Plaintiff can perform involve a degree of
stress that Plaintiff cannot tolerate.
Regarding the first objection, the ALJ discussed Plaintiff’s left knee pain in
her decision. The ALJ noted that Plaintiff complained of left knee pain in June
2010 and that an x-ray of Plaintiff’s left knee at that time was “negative.” ALJ
Decision at 7 (ECF No. 11-2 Page ID 64). The ALJ also noted that an MRI of
Plaintiff’s left knee in November 2010 revealed a “‘small’ medial meniscal tear,
small joint effusion, and ‘questionably’ abnormal appearance of the anterior
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cruciate ligament.” Id. Finally, the ALJ noted that Plaintiff complained of knee
pain in January 2011. Id. at 8 (Page ID 65). In the RFC, the ALJ limited Plaintiff
to sedentary work in which Plaintiff sits for most of the day (up to about six hours
in an eight-hour workday) and stands/walks occasionally (up to about two hours in
an eight-hour work day). Id. at 5 (Page ID 62). Plaintiff does not explain why
these limitations do not adequately accommodate his left knee pain.

In fact,

Plaintiff does not point to any evidence suggesting that his knee pain impairs his
ability to work. Moreover, the record does not specify what positions or activities
(sitting, standing, running, etc.) cause or exacerbate Plaintiff’s knee pain, and
Plaintiff’s knee pain was mentioned only very briefly during the hearing before the
ALJ. Instead, the hearing focused on Plaintiff’s diverticulitis and left shoulder
pain. Only two questions were asked during the hearing about Plaintiff knee pain –
when the pain began and what types of problems he was having with his knee –
and then Plaintiff’s attorney moved on to a different topic without eliciting
testimony about any work-related limitations resulting from Plaintiff’s knee
impairment. See 3/4/13 Hr’g at 22-23 (ECF No. 11-2 Page ID 97-98). In sum,
having reviewed the record, the Court does not find evidence suggesting any
limitations resulting from Plaintiff’s left knee pain, much less limitations beyond
those included in the RFC.

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In his second objection, Plaintiff argues that the ALJ “failed to consider or
address the evidence regarding [his] depression.” Objections at 2 (ECF No. 18
Page ID 496).

However, Plaintiff’s treatment for depression is discussed

extensively in the ALJ’s decision. See ALJ Decision at 6-9 (Page ID 63-66). After
recounting the medical evidence relating to Plaintiff’s depression, the ALJ
concluded that Plaintiff’s “mental health treatment history . . . demonstrated
improving depression that was relatively well treated through medication.” Id. at 9
(Page ID 66). Plaintiff does not explain why he believes the ALJ’s conclusion, or
the reasoning underlying it, is erroneous and, having reviewed the record, the
Court concludes that the conclusion is supported by substantial evidence.
Plaintiff’s third and final objection encompasses two issues. The first is
Plaintiff’s argument that the RFC is faulty because it does not accommodate his
purported inability to handle stress. Plaintiff acknowledges that the RFC limits
him to tasks involving “simple instructions” and “simple tasks,” but argues that
these limitations do “not account for stress, because although something may be a
‘simple task’ does not mean that it is not stressful.” Objections at 5 (Page ID 499).
While Plaintiff may be correct that his RFC does not accommodate stress, the only
evidence to which Plaintiff points suggesting that he has issues with stress is the
opinion of Ms. McLaren, a nurse practitioner who opined in a medical source
statement that Plaintiff was “moderately limited” in his ability to “withstand the
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stress and pressures associated with an eight-hour work day and day-to-day work
activity.”

ECF No. 11-7 (Page ID 415).

However, the ALJ assigned “little

weight” to Ms. McLaren’s opinion, noting that Ms. McLaren “is not an acceptable
medical source and her findings are inconsistent with [Plaintiff’s] mental health
treatment history, which demonstrated improving depression that was relatively
well treated through medication.” ALJ Decision at 9 (Page ID 66). Plaintiff does
not challenge the ALJ’s decision to discount Ms. McLaren’s opinion, a decision by
the ALJ that is entitled to deference on review. See Walters v. Comm’r of Soc.
Sec., 127 F.3d 525, 530 (6th Cir. 1997) (“[T]he ALJ has the discretion to determine
the appropriate weight to accord a [nurse practitioner’s] opinion based on all
evidence in the record since a [nurse practitioner] is not a medical source.”).
The second issue raised in Plaintiff’s third objection is an argument that the
Commissioner failed to meet its burden at step five of the familiar five-step
sequential evaluation process used to determine whether a social security claimant
is disabled. “At step five, the Commissioner must identify a significant number of
jobs in the economy that accommodate the claimant’s residual functional capacity
and vocational profile.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548 (6th
Cir. 2014).

Here, the ALJ relied on the testimony of a vocational expert to

determine that there are sufficient jobs available for Plaintiff, given his RFC. The
vocational expert testified that Plaintiff could perform the following three
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occupations: surveillance system monitor (1,800 positions available in Michigan
and 74,400 positions available nationally); paper inserter (1,700 positions available
in Michigan and 80,200 positions available nationally); and order clerk (1,900
positions available in Michigan and 215,000 positions available nationally). ALJ
Decision at 12 (Page ID 69). In his summary judgment brief, Plaintiff argued that
the vocational expert erred in concluding that Plaintiff could perform the job of
paper inserter because Plaintiff’s RFC limits him to sedentary work and the job of
paper inserter is classified as “light” work.

Both the Commissioner in her

summary judgment brief and the Magistrate Judge in her R&R assume that
Plaintiff’s argument is correct.

However, the Magistrate Judge accepted the

Commissioner’s counter-argument that the vocational expert’s mistake is harmless
because, even if Plaintiff cannot perform the demands of a paper inserter, the
vocational expert identified two additional occupations that Plaintiff can perform –
surveillance system monitor and order clerk – both of which are classified as
sedentary and available in sufficient numbers. See R&R at 23-24 (ECF No. 17
Page ID 491-92).
Plaintiff appears to take issue with the Magistrate Judge’s determination that
the error is harmless, arguing that jobs in the two additional occupations are not
available in sufficient numbers. However, the Court rejects that argument, as there
are at least 3,700 positions for Plaintiff in Michigan and 289,400 positions
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nationally, and those numbers are sufficient. See, e.g., Nejat v. Comm’r of Soc.
Sec., 359 F. App’x 574, 579 (6th Cir. 2009) (availability of 2,000 jobs regionally
sufficient to satisfy step five burden); Colon v. Comm’r of Soc. Sec., No. 00-CV0556, 2004 WL 1144059, at *8-9 (N.D.N.Y. Mar. 22, 2004) (availability of
100,000 jobs nationally and 100 jobs regionally sufficient to satisfy step five
burden). Moreover, whether the jobs are available locally is irrelevant. See 42
U.S.C. § 423(d)(2)(A) (“An individual shall be determined to be under a disability
. . . if his physical or mental impairment or impairments are of such severity that he
. . . cannot . . . engage in any . . . kind of substantial gainful work which exists in
the national economy, regardless of whether such work exists in the immediate
area in which he lives.”); 20 C.F.R. § 404.1566(a)(1) (“We consider that work
exists in the national economy when it exists in significant numbers either in the
region where you live or in several other regions of the country. It does not matter
whether . . . Work exists in the immediate area in which you live.”).
For these reasons, the Court overrules Plaintiff’s objections to the R&R.
Accordingly,
IT IS ORDERED that the Magistrate Judge’s R&R adopted;
IT IS FURTHER ORDERED that Plaintiff’s objections to the Magistrate
Judge’s R&R are overruled;

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IT IS FURTHER ORDERED that Defendant’s motion for summary
judgment is granted;
IT IS FURTHER ORDERED that Plaintiff’s motion for summary
judgment is denied.

Dated: September 21, 2015

s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE

Copies to:
Hugh R. LeFevre, Esq.
Derri T. Thomas, Esq.
Karla J. Gwinn, Esq.

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