Hughes v. Social Security
OPINION AND ORDER adopting 13 Report and Recommendation, overruling plaintiff's objections 14 , denying plaintiff's Motion for Summary Judgment 11 and granting defendant's Motion for Summary Judgment 12 Signed by District Judge George Caram Steeh. (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
CASE NO. 15-CV-13518
HON. GEORGE CARAM STEEH
COMMISSIONER OF SOCIAL
OPINION AND ORDER ACCEPTING REPORT AND
RECOMMENDATION (Doc. 13), OVERRULING PLAINTIFF’S
OBJECTIONS (Doc. 14), DENYING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT (Doc. 11), AND GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Doc. 12)
This matter is before the court on the parties’ cross-motions for
summary judgment as to plaintiff Lawrence Hughes’ claim for judicial review
of a final decision of defendant Commissioner denying his application for
Supplemental Security Income (“SSI”) under the Social Security Act, 42
U.S.C. § 405(g). The matter was referred to Magistrate Judge Stafford who
issued a report and recommendation on October 26, 2016, recommending
that plaintiff’s motion be denied and the Commissioner’s motion be granted.
Plaintiff timely filed objections to that report which this court has duly
considered. For the reasons stated below, plaintiff’s objections are overruled
and the court shall accept Magistrate Judge Stafford’s report.
II. PROCEDURAL AND FACTUAL HISTORY
On October 10, 2012, plaintiff filed an application for SSI benefits
alleging a disability as of September 14, 2012. Plaintiff alleged that he was
disabled by bipolar disorder, phobias, attention deficit hyperactivity disorder,
back and leg pain, deteriorating knees, elbow and joint pain, and chronic
headaches. On March 26, 2014, a hearing was held before an Administrative
Law Judge (“ALJ”). Plaintiff, who was represented by counsel, testified on his
own behalf, as did an impartial vocational expert.
Prior to the onset of his alleged disability, plaintiff worked as a
construction worker. The ALJ found that plaintiff could not perform his past
work, but had the residual functional capacity (“RFC”) to perform sedentary
work but requiring the “ability to alternate between sitting and standing at will”
and being “limited to simple, routine and repetitive tasks that involve no
interaction with the public.” At the hearing, the vocational expert testified that
plaintiff could perform the positions of assembler and inspector, for which a
significant number of positions exist in the national economy. The ALJ denied
plaintiff’s application for benefits in a written decision on May 5, 2014, the
Appeals Council denied review, and plaintiff timely filed for judicial review.
Both sides have filed motions for summary judgment. On October 26,
2016, Magistrate Judge Stafford issued her report and recommendation that
the Commissioner’s motion for summary judgment should be granted and
plaintiff’s motion for summary judgment should be denied. Now before the
court are plaintiff’s objections to that report. In his two objections, plaintiff
argues (1) that the ALJ failed to fully consider Dr. Boneff’s report which should
have led to the conclusion that plaintiff could not remain on task at least 85
percent of the day, a requirement for the positions the vocational expert found
necessary for any employment; and (2) the ALJ did not properly consider the
moderate limitations outlined in the opinion of the state agency psychologist,
Michele Leno, Ph.D., in the hypothetical question posed to the vocational
III. STANDARD OF LAW
The standard of review to be employed by the court when examining a
report and recommendation is set forth in 28 U.S.C. § 636. This court “shall
make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28
U.S.C. § 636(b)(1)(C). This court “may accept, reject or modify, in whole or
in part, the findings or recommendations made by the magistrate.” Id.
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 and Human Servs., 815 F.2d 1074, 1076 (6th Cir. 1987).
Substantial evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 401 (1971).
Once an ALJ determines that a claimant does not possess the RFC to
perform his or her past relevant work, the burden shifts to the Commissioner
“to show that plaintiff possesses the capacity to perform other substantial
gainful activity that exists in the national economy.” Varley v. Sec’y of Health
and Human Servs., 820 F. 2d 777, 779 (6th Cir. 1987). The Commissioner
may rely on a vocational expert’s testimony in response to a hypothetical
question to meet this burden. Id. “In order for a vocational expert’s testimony
in response to a hypothetical question to serve as substantial evidence in
support of the conclusion that a claimant can perform other work, the question
must accurately portray a claimant’s physical and mental impairments.” Ealy
v. Comm’r of Soc. Sec., 594 F.3d 504, 516 (6th Cir. 2010).
Whether the ALJ Gave Appropriate Weight to Dr. Boneff’s Opinion
Plaintiff argues that if the ALJ had given proper weight to Dr. Nick
Boneff’s medical report, the ALJ would have concluded that plaintiff was not
able to remain on task for 85 percent of the day, a requirement the vocational
expert identified for successful employment. The court has reviewed the
ALJ’s decision and finds that the ALJ carefully considered his report in total.
Specifically, the ALJ noted:
the claimant was examined by Nick Boneff, Ph.D.
(licensed psychologist) and diagnosed with bipolar
disorder, intermittent explosive disorder, cocaine
abuse and alcohol abuse/dependence in reported
It was noted that the claimant
demonstrated difficulties with concentration as
evidenced by extreme difficulty performing
calculational tasks. He displayed moderate strengths
in immediate memory and the capacity to pay
attention and significant problems with short-term
memory. He displayed variability in terms of capacity
for abstract thinking, capacity for judgment and
impulse control. Dr. Boneff opined that the claimant
appeared to be capable of engaging in simple work
type activities, remembering and executing a three of
four-step repetitive procedure on a sustained basis
that required little if any independent judgment or
(Doc. 9-2 PgID 45-46). Plaintiff points out that Dr. Boneff also reported that
plaintiff angers quickly, manages money poorly, has difficulty with short-term
memory, has difficulty making mathematical calculations, was incapable of
managing his own benefit funds, and has only moderate strengths in his ability
to pay attention. Plaintiff claims this supports the inference that he was
unable to stay on task for 85 percent of the day.
The fact that plaintiff may not have managed money well or had difficulty
with mathematical calculations does not inform the determination of whether
plaintiff could stay on task in a sedentary position as inspector as much as 85
percent of the time. By plaintiff’s own admission, Dr. Boneff found that he had
moderate strengths in immediate memory and the ability to pay attention. Dr.
Boneff expressly found that plaintiff “would appear capable of engaging in
simple work type activities, remembering and executing a three or four-step
repetitive procedure on a sustained basis.” (Doc. 9-7 at PgID 406). The use
of the phrase “sustained basis” suggests that plaintiff could stay on task as
much as 85 percent of the time. Moreover, plaintiff has not come forward with
any evidence suggesting that he would be unable to stay on task 85 percent
of the time in the inspector position identified by the vocational expert as one
fitting his qualifications.
Accordingly, plaintiff’s first objection shall be
Whether Hypothetical Question to Vocational Expert was Sufficient
Plaintiff next argues that the ALJ erred by not including the limitations
identified by Dr. Leno in the hypothetical posed to the vocational expert.
According to plaintiff, Dr. Leno identifies the moderate limitations in his “ability
to maintain attention and concentration for extended periods of time, [to]
interact appropriately with the general public, [to] accept instructions and
respond appropriately to criticism from supervisors.” The court overrules
plaintiff’s objection because the hypothetical posed to the vocational expert
adequately accounted for these moderate limitations as it specifically
precluded plaintiff from any work with the general public, required that plaintiff
be allowed to alternate between sitting and standing at will, and limited plaintiff
to simple, routine and repetitive tasks.
For the reasons set forth above, plaintiff’ objections hereby are
Consistent with the analysis herein, the court hereby
ACCEPTS Magistrate Judge Stafford’s report and recommendation dated
October 26, 2016 (Doc. 13), AFFIRMS the ALJ, GRANTS the Commissioner’s
motion for summary judgment (Doc. 12), DENIES plaintiff’s motion for
summary judgment (Doc. 11), and DISMISSES plaintiff’s complaint WITH
IT IS SO ORDERED.
Dated: January 4, 2017
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
January 4, 2017, by electronic and/or ordinary mail.
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