Soucie v. Commissioner of Social Security

Filing 22

ORDER Adopting 18 Report and Recommendation, Denying Plaintiff's 15 Motion for Summary Judgment, Granting Defendant's 17 Motion for Summary Judgment and Affirming the Findings of the Commissioner. Signed by District Judge David M. Lawson. (SPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JEFFREY SOUCIE,
Plaintiff,
v.

Case Number 16-10576
Honorable David M. Lawson
Magistrate Judge Anthony P. Patti

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________/
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION, DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT, GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT, AFFIRMING THE FINDINGS OF THE
COMMISSIONER, AND DISMISSING COMPLAINT
The plaintiff filed the present action on February 17, 2016 seeking review of the
Commissioner’s decision denying his claim for disability benefits under Title II of the Social
Security Act. The case was referred to United States Magistrate Judge Anthony P. Patti under 28
U.S.C. § 636(b)(1)(B) and E.D. Mich. LR 72.1(b)(3). Thereafter, the plaintiff filed a motion for
summary judgement to reverse the decision of the Commissioner and remand the case for further
consideration by the administrative law judge. The defendant filed a motion for summary judgment
requesting affirmance of the decision of the Commissioner. Magistrate Judge Patti filed a report on
October 24, 2016 recommending that the defendant’s motion for summary judgment be granted, the
plaintiff’s motion for summary judgment be denied, and the decision of the Commissioner be
affirmed. The plaintiff filed timely objections, and the defendant filed a response. The matter is
now before the Court.

The filing of timely objections to a report and recommendation requires the court to “make
a de novo determination of those portions of the report or specified findings or recommendations
to which objection is made.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667
(1980); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This de novo review requires the
court to re-examine all of the relevant evidence previously reviewed by the magistrate judge in order
to determine whether the recommendation should be accepted, rejected, or modified in whole or in
part. 28 U.S.C. § 636(b)(1).
“The filing of objections provides the district court with the opportunity to consider the
specific contentions of the parties and to correct any errors immediately,” Walters, 638 F.2d at 950,
enabling the court “to focus attention on those issues-factual and legal-that are at the heart of the
parties’ dispute,” Thomas v. Arn, 474 U.S. 140, 147 (1985). As a result, “‘[o]nly those specific
objections to the magistrate’s report made to the district court will be preserved for appellate review;
making some objections but failing to raise others will not preserve all the objections a party may
have.’” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (quoting Smith v.
Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987)).
The Court has reviewed the file, the report and recommendation, and the plaintiff’s
objections, and the defendant’s response to those objections and has made a de novo review of the
administrative record in light of the parties’ submissions.
The plaintiff, who is now 53 years old, filed his application for disability insurance benefits
on August 28, 2013, when he was 50. The plaintiff has a limited education, but is able to
communicate in English. In the application that is the subject of the present appeal, the plaintiff
alleged a disability onset date of August 23, 2013. The plaintiff has been diagnosed with hernia,

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coronary artery disease (status post six stents between 2000 and 2013), chronic obstructive
pulmonary disease, high blood pressure, and edema in the legs. The medical records contain
information that the plaintiff has a body mass index (BMI) suggesting that he is obese, but other than
medical advice to lose weight and stop smoking, no medical source has indicated that the plaintiff’s
obesity has limited his ability or work or complicated his other medical conditions.
The plaintiff’s application for disability benefits was denied initially on November 22, 2013.
The plaintiff timely filed a request for an administrative hearing, and on March 23, 2015, the
plaintiff appeared with his attorney before Administrative Law Judge (ALJ) Jerome B. Blum. On
May 14, 2015, ALJ Blum issued a written decision in which he found that the plaintiff was not
disabled. On December 23, 2015, the Appeals Council denied the plaintiff’s request for review of
the ALJ’s decision. The plaintiff filed his complaint seeking judicial review on February 17, 2016.
ALJ Blum reached his conclusion that the plaintiff was not disabled by applying the five-step
sequential analysis prescribed by the Secretary in 20 C.F.R. § 404.1520. He found that the plaintiff
had not engaged in substantial gainful activity since August 23, 2013 (step one); the plaintiff
suffered from hernia, coronary artery disease status (as a result of which he received six stents
between 2000 and 2013), chronic obstructive pulmonary disease, high blood pressure, and edema
in the legs, impairments which were “severe” within the meaning of the Social Security Act (step
two); none of those impairments alone or in combination met or equaled a listing in the regulations
(step three); and the plaintiff was unable to perform the duties required for his past relevant work
as a circular saw operator, cut-off saw operator, and shipping and receiving supervisor, which were
semi-skilled positions requiring medium exertion (step four).

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In applying the fourth step, the ALJ concluded that the plaintiff had the residual functional
capacity (RFC) to perform sedentary work as defined under 20 C.F.R. § 404.1567(a), except that
he required the option to sit or stand as needed, and he would need to avoid exposure to gases,
fumes, and odors. A vocational expert testified that the plaintiff could perform jobs such as order
clerk or order filler, and that 74,000 such jobs are available nationwide, with 1,600 jobs within the
State of Michigan. Based on those findings and using Medical Vocational Rule 202.11 as a
framework, the ALJ concluded that the plaintiff was not disabled within the meaning of the Social
Security Act.
In the plaintiff’s motion for summary judgment, he argued that the ALJ failed to follow the
Social Security regulations when making the determination of the plaintiff’s RFC and assessing his
credibility. As the magistrate judge observed, those arguments are not well developed. And the
objections to the report and recommendation in the main are a rehash of the summary judgment
brief. The Court believes that the magistrate judge thoroughly reviewed the administrative record,
discussed the plaintiff’s arguments in detail, and reached the correct conclusion.
First Objection
In his first objection, the plaintiff contends that the magistrate judge erred by “inferring” that
the ALJ accurately communicated all pertinent parameters of the RFC in the hypothetical posed to
the vocational expert (VE). The plaintiff asserts that the decision does not indicate that the
hypothetical specified that the option to sit or stand must be “at will,” and that the response to that
deficient hypothetical therefore cannot constitute substantial evidence that jobs exist which a
claimant could perform who has the fully specified limitations found by the ALJ.

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However, as the magistrate judge pointed out, the transcript of the administrative hearing
plainly indicates that the VE fully understood the parameters of the sit/stand option limitation,
because that limitation was discussed in the context of the requirements for jobs such as cashier, and
the VE stated during that discussion that such jobs could be performed from “basically seated
positions,” and that, “if they — the individual wanted to stand whenever they needed to, it would
be no problem.” (Tr. at 50 (Pg ID 88)). Moreover, the “at will” frequency designation for the
sit/stand option is the most restrictive condition. From the colloquy quoted above, it is apparent that
the VE employed that most restrictive condition when rendering his opinion. The magistrate judge
concluded that, if the omission of an “at will” qualifier from the ALJ’s mention of the sit/stand
option in his decision was in error, then that error was harmless because the record indicates,
nevertheless, that the VE fully comprehended all of the parameters of the limitations that were found
by the ALJ. The plaintiff criticizes the magistrate judge’s resort to “inference” when reaching that
conclusion. But no great inferential leap is required; the VE plainly stated that his assumption was
that the plaintiff must be able to sit or stand “whenever [he] needed to.”
The plaintiff’s first objection will be overruled.
Second Objection
In his second objection, the plaintiff contends that the ALJ erred by failing to make any
mention of or findings concerning whether his obesity constituted an impairment under the
applicable regulations, or how his obesity might impact the severity of his other impairments
including coronary artery disease, COPD, high blood pressure, and edema. The plaintiff contends
that remand is warranted for the ALJ to consider the impact of his obesity under the relevant
regulatory standards and rulings, such as SSR 02-1p.

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However, the plaintiff has failed to point to any evidence in the record to establish that his
obesity constitutes a severe impairment in itself, or that it would aggravate any of his other
impairments in some material way. Absent such a showing, remand is not warranted where the
plaintiff’s objection is based on nothing more than a bald assertion that his other impairments
“presumably would be impacted” by his obesity. The plaintiff’s argument ignores the basic tenet
of Social Security disability law that he has the burden to prove that he is disabled and therefore
entitled to benefits. Boyes v. Sec’y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994);
Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). That means that the plaintiff must establish
that he suffers from a disability, as that term is defined in the Social Security Act. See Boyes, 46
F.3d at 512; Abbott, 905 F.2d at 923.
A claimant suffers from a disability “only if his physical or mental . . . impairments are of
such severity that he is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work which exists
in the national economy.” 42 U.S.C. § 423(d)(1)(B). The concept of disability relates to functional
limitations. Although these functional limitations must, of course, be caused by a physical or mental
impairment, in the end, “[i]t is an assessment of what [the claimant] can and cannot do, not what she
does and does not suffer from.” Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002)
(referring to assessment of residual functional capacity).
The plaintiff here has not identified a single item of evidence in the administrative record
that tends to show that his obesity, either alone or in combination with other medical conditions,
impaired his ability to perform work. Because it is the plaintiff’s burden to point out information
in the record to substantiate that some severe limitation, or aggravation of another limitation, would

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result from his obesity, and because he has put forth no evidence to sustain that burden, his second
objection will be overruled.
After a de novo review of the entire record and the materials submitted by the parties, the
Court concludes that the magistrate judge properly reviewed the administrative record and applied
the correct law in reaching his conclusion. The Court has considered all of the plaintiff’s objections
to the report and finds them to lack merit.
Accordingly, it is ORDERED that the magistrate judge’s report and recommendation [dkt.
#18] is ADOPTED.
It is further ORDERED that the plaintiff’s objections [dkt. #20] are OVERRULED.
It is further ORDERED that the plaintiff’s motion for summary judgment [dkt. #15] is
DENIED.
It is further ORDERED that the defendant’s motion for summary judgment [dkt #17] is
GRANTED. The findings of the Commissioner are AFFIRMED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: February 24, 2017

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on February 24, 2017.
s/Susan Pinkowski
SUSAN PINKOWSKI

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