Marko v. Social Security, Commissioner of

Filing 19

OPINION and ORDER DENYING Plaintiff's 13 Motion for Summary Judgment; and GRANTING Defendant's 14 Motion for Summary Judgment--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CAROLYN R. MARKO,
Plaintiff,

Case No. 2:16-cv-12204
Magistrate Judge Anthony P. Patti

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
___________________________________/
OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT (DE 13), GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT (DE 14) AND AFFIRMING THE DECISION
OF THE COMISSIONER OF SOCIAL SECURITY
Plaintiff, Carolyn R. Marko, brings this action under 42 U.S.C. §§ 405(g)
and 1383(c)(3) for review of a final decision of the Commissioner of Social
Security (“Commissioner”) denying her applications for supplemental security
income (“SSI”) and disability insurance benefits (“DIB”). Currently before the
Court is Plaintiff’s motion for summary judgment (DE 13), the Commissioner’s
cross-motion for summary judgment (DE 14), and the administrative record (DE
10).
The parties have consented to my authority. (DE 8.) A hearing was noticed
for July 13, 2017. On that date, Plaintiff’s counsel (David M. Stewart) appeared in
person and AUSA Amelia Stewart appeared by telephone.

I.

BACKGROUND
On April 12, 2013, Plaintiff filed an initial application for DIB, followed by

an application for SSI on April 30, 2013, alleging she has been disabled since
October 6, 2012. (R. at 140-47, 160.) Her applications were denied and she
sought a de novo hearing before an administrative law judge (“ALJ”). On October
3, 2014, ALJ Andrew G. Sloss held a hearing at which Plaintiff appeared and
testified. (R. at 40-59.) On November 12, 2014, ALJ Sloss issued an opinion in
which he found Plaintiff to not be disabled. (R. at 25-34.) On April 12, 2016, the
Appeals Council denied Plaintiff’s request for review. (R. at 1-4.) ALJ Sloss’s
opinion thus became the Commissioner’s final decision and Plaintiff timely
commenced the instant action.
A.

Plaintiff’s Medical History and Hearing Testimony

Plaintiff’s medical history and hearing testimony will be discussed as
necessary in the Analysis section below.
B.

The Administrative Decision

In his November 12, 2014 decision, the ALJ first concluded that Plaintiff
met the insured status requirements through September 30, 2014. (R. at 27.) At

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Step 1 of the sequential evaluation process,1 the ALJ found that Plaintiff had not
engaged in substantial gainful activity since October 6, 2012. (Id.)
At Step 2, the ALJ found that Plaintiff had the following severe
impairments: degenerative disc disease of the lumbar spine, bilateral carpal tunnel
syndrome, osteoarthritis, and rheumatoid arthritis. (R. at 27.) At Step 3, the ALJ
found that Plaintiff did not have an impairment or combination of impairments that
met or medically equaled one of the listed impairments described in 20 C.F.R. Part
404, Subpart P, Appendix 1. (R. at 28-30.)
Prior to undertaking Step 4, the ALJ evaluated Plaintiff’s residual functional
capacity (“RFC”)2 and determined that she could perform light work,3 with several
1

Social Security Regulations require ALJs to resolve a disability claim through a
five-step sequential evaluation of the evidence. See 20 C.F.R. §404.1520(a)(4).
Although a dispositive finding at any step terminates the ALJ’s review, see Colvin
v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), if fully considered the sequential
review considers and answers five questions:
1.
2.
3.

4.
5.

Is the claimant engaged in substantial gainful activity?
Does the claimant suffer from one or more severe impairments?
Do the claimant’s severe impairments, alone or in combination, meet
or equal the criteria of an impairment set forth in the Commissioner’s
Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1?
Considering the claimant’s residual functional capacity, can the
claimant perform his or her past relevant work?
Considering the claimant’s age, education, past work experience, and
residual functional capacity, can the claimant perform other work
available in the national economy?

See 20 C.F.R. §404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th
Cir. 2009); Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
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limitations, including only frequently climbing ramps, climb stairs, or balance, and
must avoid concentrated exposure to vibration. (R. at 30.) At Step 4, the ALJ
concluded that Plaintiff was unable to perform her past relevant work. (R. at 32.)
At Step 5, the ALJ concluded that Plaintiff was capable of performing other jobs
that exist in significant numbers in the national economy. (R. at 33-34.) The ALJ
therefore concluded that Plaintiff was not disabled under the Social Security Act.
II.

STANDARD OF REVIEW
The District Court has jurisdiction to review the Commissioner’s final

administrative decision pursuant to 42 U.S.C. § 405(g). When reviewing a case
under the Social Security Act, the Court “must affirm the Commissioner’s decision
if it ‘is supported by substantial evidence and was made pursuant to proper legal
standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see
also 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner of Social Security as
2

The claimant’s “residual functional capacity” is an assessment of the most the
claimant can do in a work setting despite his or her physical or mental limitations.
20 C.F.R. §404.1545(a); Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239 (6th
Cir. 2002).
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“Light work involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. Even though the weight
lifted may be very little, a job is in this category when it requires a good deal of
walking or standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls.” 20 C.F.R. § 404.1567(b).

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to any fact, if supported by substantial evidence, shall be conclusive . . . .”). Under
this standard, “substantial evidence is defined as ‘more than a scintilla of evidence
but less than a preponderance; it is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Rogers, 486 F.3d at 241
(quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.
1994)). In deciding whether substantial evidence supports the ALJ’s decision, the
court does “not try the case de novo, resolve conflicts in evidence or decide
questions of credibility.” Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007);
Rogers, 486 F.3d at 247 (“It is of course for the ALJ, and not the reviewing court,
to evaluate the credibility of witnesses, including that of the claimant.”).
Furthermore, the claimant “has the ultimate burden to establish an entitlement to
benefits by proving the existence of a disability.” Moon v. Sullivan, 923 F.2d
1175, 1181 (6th Cir. 1990).
Although the substantial evidence standard is deferential, it is not trivial.
The Court must “‘take into account whatever in the record fairly detracts from
[the] weight’” of the Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384,
395 (6th Cir. 2002) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487
(1951)). Nevertheless, “if substantial evidence supports the ALJ’s decision, this
Court defers to that finding ‘even if there is substantial evidence in the record that
would have supported an opposite conclusion.’” Blakley v. Comm’r of Soc. Sec.,
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581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d 270, 273
(6th Cir. 1997)); see also 42 U.S.C. § 405(g) (“The findings of the Commissioner
of Social Security as to any fact, if supported by substantial evidence, shall be
conclusive . . . .”). Finally, even if the ALJ’s decision meets the substantial
evidence standard, “‘a decision of the Commissioner will not be upheld where the
SSA fails to follow its own regulations and where that error prejudices a claimant
on the merits or deprives the claimant of a substantial right.’” Rabbers, 582 F.3d
at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).
III.

ANALYSIS
As best as the Court can discern, Plaintiff advances two arguments as to why

the ALJ committed reversible error warranting remand. First, she asserts that the
ALJ erred at Step 2 by only considering her degenerative disc disease, carpal
tunnel syndrome, osteoarthritis, and rheumatoid arthritis as severe impairments.
Second, she contends that the ALJ erred in formulating the RFC because he did not
incorporate the entirety of the two physicians’ opinions on which he relied. The
Commissioner opposes the motion, asserting that the ALJ’s decision is supported
by substantial evidence. I will address each argument in turn.
A.

Briefing Requirements

As I indicated at the July 13, 2017 hearing, Plaintiff’s brief did not conform
to either the Local Rules or my practice guidelines. Local Rule 7.1(d)(2) mandates
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in relevant part that “[a] brief supporting a motion or response must, at the
beginning, contain a concise statement of the issues presented . . . .” Similarly, my
Practice Guidelines for Social Security cases stress the need for that separate issues
presented page. Specifically, my Practice Guidelines contain the following
directions for Social Security motions:
All motions and briefs must comply with Local Rule 7.1. The parties
are particularly reminded of the requirement that all briefs must
include an “Issues Presented” page. On that page, the parties shall
outline the issues to be presented in their briefing. In the case of a
motion for summary judgment or remand, the “Issues Presented” must
indicate the error allegedly committed by the Administrative Law
Judge, i.e., the bases for the appeal and grounds for reversal. Within
the parties’ briefs, the issues presented should be labeled as section
headings, and should match the items listed on the “Issues Presented”
page. Any issue addressed in the brief that is not both 1) included in
Issues Presented and 2) labeled as a section heading within the brief,
will not be considered by the Court.
Here, there is no “Issues Presented” page outlining the issues to be presented. Nor
are the issues labeled as section headings within the brief. As such, it was difficult
to discern the elements of the ALJ’s opinion Plaintiff was challenging, although
arguments at the hearing did help to resolve this issue somewhat. Plaintiff is
cautioned that future non-conforming briefs will be stricken.
B.

Step 2 Determination of Severe Impairments

Plaintiff asserts that the ALJ should have considered her impairments of
hyperthyroidism, episodes of dizziness, and female stress incontinence (“FSI”),
joint disease in her left shoulder, and plantar fasciitis to be severe at Step 2. She
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further argues that the ALJ did not properly consider the impact of her obesity on
the severity of her impairments. At the hearing, when asked to clarify exactly what
issues were on appeal, Plaintiff’s counsel narrowed his arguments to focus on the
FSI and Plaintiff’s weight gain. First, he argued that the ALJ erred in his
conclusion that her FSI failed to meet the durational requirement to be considered a
severe impairment. Second, he argued that the ALJ failed to discuss Plaintiff’s
weight change of 33 pounds between Dr. Nguyen’s review of the records and the
hearing date.
1.

Waiver of Issues

As a preliminary matter, Plaintiff waived her arguments on these issues by
failing to spell them out in her brief. The brief included general statements about
the ALJ’s opinion with citations to broad swaths of the record and no indication of
what evidence could be found at those pages. As this Court recently held
regarding a similar motion for summary judgment in a Social Security case,
Plaintiff’s “almost complete lack of argument development renders the majority of
his arguments waived. ‘[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived. It
is not sufficient for a party to mention a possible argument in the most skeletal
way, leaving the court to . . . put flesh on its bones.’” Spiteri v. Colvin, 2015 WL
7258749, at *3 (E.D. Mich. Nov. 9, 2015) (Stafford, M.J.) (footnote omitted),
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report and recommendation adopted at 2015 WL 8538036 (E.D. Mich. Dec. 11,
2015) (Michelson, J.) (quoting McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th
Cir. 1997)) (footnote, citation and internal quotation marks omitted); see also
Mitcham v. Detroit, 355 Mich. 182, 203 (1959) (“It is not enough for an appellant
in his brief simply to announce a position or assert an error and then leave it up to
this Court to discover and rationalize the basis for his claims, or unravel and
elaborate for him his arguments, and then search for authority either to sustain or
reject his position.”). The administrative record in this case is nearly 800 pages
long, and the Court will not search the record for potential arguments or evidence
beneficial to Plaintiff. Jones v. Comm’r of Soc. Sec., 2013 WL 4748083, at *8
(N.D. Ohio Sept. 4, 2013) (“[I]t is not the Court’s function to search the
administrative record for evidence to support [Plaintiff’s] ‘argument’ or find law
supporting [his or] her claims. This Court does not conduct a de novo review in
social security proceedings, and certainly cannot be expected to craft an argument
on [Plaintiff’s] behalf.”) (quotation marks and citations omitted).
2.

Issues Raised at Oral Argument

To the extent Plaintiff’s counsel clarified her arguments during the hearing,
her position is unavailing because the ALJ’s conclusions are supported by
substantial evidence. It was Plaintiff’s burden at Step 2 to establish that these
impairments limited her ability to do basic work activities, and she failed to do so.
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See 20 C.F.R. §§ 404.1521(a); Jones v. Comm’r Soc. Sec., 336 F.3d 469, 474 (6th
Cir. 2003). For example, the ALJ concluded that her FSI was non-severe because
her last report of it occurred in early 2013, demonstrating that it did not meet the
durational requirement to be considered a severe impairment. See Soc. Sec. Ruling
85-52 (to be considered severe, an impairment must have lasted or be expected to
last for at least 12 continuous months). During the hearing, Plaintiff’s counsel
noted that her FSI met the durational requirements because it was reported on
November 26, 2013 (R. at 505), January 21, 2014 (R. at 534), March 20, 2014 (R.
at 532), and May 14, 2014 (R. at 530). However, a review of those treatment notes
reveals only the brief remark stating “Urinary incontinence yes.” (R. at 505, 534,
532, and 530.) This does not indicate the severity of the issue, whether Plaintiff
reported FSI, the frequency, amount, or triggers to the condition, her prognosis,
whether non-surgical treatment was given, whether it was worsening, or anything
else bearing on the severity of the impairment. The ALJ’s conclusion that the
evidence in the record did not establish a severe impairment is supported by
substantial evidence in the record, including the treatment notes to which Plaintiff
cited.
C.

Plaintiff’s RFC is Supported by Substantial Evidence

Plaintiff’s RFC is “the most [he or she] can still do despite the physical and
mental limitations resulting from [his or] her impairments.” Poe v. Comm’r of
10

Soc. Sec., 342 F. App’x 149, 155 (6th Cir. 2009); see also 20 C.F.R. §§
404.1545(a), 416.945(a). The determination of Plaintiff’s RFC is an issue reserved
to the Commissioner and must be supported by substantial evidence. 20 C.F.R. §§
404.1527(3), 416.927(e). ‘“ALJs must not succumb to the temptation to play
doctor and make their own independent medical findings.’” Simpson v. Comm’r of
Soc. Sec., 344 F. App’x 181, 194 (6th Cir. 2009) (quoting Rohan v. Chater, 98
F.3d 966, 970 (7th Cir. 1996)).
Pursuant to Social Security Rule 96-8p, the RFC assessment must
include:
[A] narrative discussion describing how the evidence supports each
conclusion, citing specific medical facts (e.g., laboratory findings) and
nonmedical evidence (e.g., daily activities, observations).
In
assessing RFC, the adjudicator must discuss the individual’s ability to
perform sustained work activities in an ordinary work setting on a
regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or
an equivalent work schedule), and describe the maximum amount of
each work-related activity the individual can perform based on the
evidence available in the case record. The adjudicator must also
explain how any material inconsistencies or ambiguities in the
evidence in the case record were considered and resolved.
S.S.R. 96-8-, 1996 WL 374184, at *6-7. “Although SSR 96–8p requires a
‘function-by-function evaluation’ to determine a claimant’s RFC, case law does
not require the ALJ to discuss those capacities for which no limitation is alleged.”
Delgado v. Comm’r of Soc. Sec., 30 F. App’x 542, 547 (6th Cir. 2002). Instead,
the ALJ ‘“need only articulate how the evidence in the record supports the RFC
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determination, discuss the claimant's ability to perform sustained work-related
activities, and explain the resolution of any inconsistencies in the record.”’ Id.
(quoting Bencivengo v. Comm'r of Soc. Sec., No. 00–1995, 251 F.3d 153, slip op.
at 5 (3d Cir. Dec. 19, 2000)).
1.

Light Work

In assessing Plaintiff’s RFC, the ALJ gave great weight to the opinions of
consultative examiner, Dr. Lazzara, and the reviewing State Agency physician, Dr.
Nguyen, but Plaintiff asserts that he erred by failing to “include all of their
acknowledged impairments.” (DE 13 at 5.) She specifically argues that Dr.
Lazzara’s opinion that she could walk between 4-6 hours in an 8-hour work day,
could carry, push, and pull less than twenty pounds, and could occasionally stoop,
squat, and recover were not included in the RFC and are inconsistent with light
work. Likewise, she notes that Dr. Nguyen’s opinion that she should avoid
repetitive flexion and extension of the wrists was not included in the RFC.
However, the ALJ was not required to adopt the opinions in their entirety and
Plaintiff has not demonstrated that she was further limited than the RFC. See
Reeves v. Comm’r of Soc. Sec., 613 F. App’x 267, 275 (6th Cir. 2015) (“Although
the ALJ gave great weight to Dr. Torello’s opinion, he was not required to
incorporate the entirety of her opinion, especially those findings that are not
substantially supported by evidence in the record.”). Moreover, there is nothing
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inconsistent with a limitation to light work and the findings of Drs. Lazzara and
Nguyen. See 20 C.F.R. §§416.967(b) (Light work “involves lifting no more than
20 pounds at a time” and “a good deal of walking or standing . . . with some
pushing and pulling of arm or leg controls.”) In addition, the ALJ’s decision not to
incorporate pushing, pulling, or flexion limitations was supported by Dr. Lazzara’s
opinion, in which he concluded that Plaintiff had “no evidence of joint laxity,
crepitance, or effusion,” that her “[g]rip strength remain[ed] intact,” and that she
had only “mild difficulty” squatting and hopping. (R. at 498.)
2.

Obesity

Plaintiff also asserts that the ALJ erred in giving great weight to Dr.
Nguyen’s opinion with respect to her obesity, given that she gained approximately
33 pounds from the time of Dr. Nguyen’s August 15, 2013 review and the October
3, 2014 hearing. However, the ALJ’s treatment of her obesity is also supported by
substantial evidence. When obesity is at issue, an ALJ need not employ a
“particular mode of analysis” when considering its impact. Bledsoe v. Barnhart,
165 F. App’x 408, 411-12 (6th Cir. 2006). The ALJ must, however, “consider the
claimant’s obesity in combination with other impairments at all stages of the
sequential evaluation.” Nejat v. Comm’r of Soc. Sec., 359 F. App’x 574, 577 (6th
Cir. 2009). While there is no longer a Listing for obesity, “obesity may increase
the severity of coexisting or related impairments to the extent that the combination
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of impairments meets the requirements of a listing.” S.S.R. 02-1P. The burden is
on Plaintiff to show specifically “how the obesity, in combination with other
impairments, limited her [or his] ability to a degree inconsistent with the ALJ’s
RFC determination.” Smith v. Astrue, 639 F. Supp. 2d 836, 846-47 (6th Cir. 2009).
Here, the ALJ explicitly considered her obesity in his opinion, noting that
the “medical evidence of record does not indicate that the claimant’s obesity
contributes to any other severe impairment” and nevertheless positing that he
“accounted for her obesity by limiting her to light work.” (R. at 30 and 32.)
Plaintiff has not demonstrated how the obesity, in combination with her other
impairments, limited her ability to a degree inconsistent with light work.
Moreover, although her counsel pointed out a significant weight gain from the time
of Dr. Nguyen’s review and the hearing, Plaintiff did not testify to the effects of
her increasing obesity at the hearing. See, e.g., Griffith v. Comm’r of Soc. Sec., No.
Civ. A. 12-10579, 2014 WL 1213257, at *19 (E.D. Mich. Feb. 14, 2014) report
and recommendation adopted, No. 12-15079, 2014 WL 1224807 (E.D. Mich. Mar.
24, 2014) (noting that Plaintiff’s failure to testify about the limiting effects of
obesity provided was evidence supporting the ALJ’s limited consideration).
Accordingly, I find no error in the ALJ’s analysis of Plaintiff’s obesity.
3.

Use of a Cane

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At the hearing, Plaintiff’s counsel argued that the ALJ failed to account for
her use of a cane, noting that she was prescribed a “walking cane” on September
11, 2014. (R. at 757.) Plaintiff asserts that the use of the cane would render her
unemployable, although she does not specify why that it so. Her counsel pointed
to the Vocational Expert’s (“VE”) testimony at the October 3, 2014 hearing, but it
is unclear if he was referring to the VE’s testimony that it would be work
preclusive if she was unable to lift more than ten pounds or stand for less than two
hours per day. (See R. at 57.)
As a preliminary matter, Plaintiff waived her argument related to the cane,
only including one line in her brief stating the following: “After the radiofrequency
lesioning failed, Dr. Sripada noted that she was prescribing a cane, which
[Plaintiff] had already been using for several years.” (DE 13 at 7.)
Even if Plaintiff had not waived this argument in her brief, the ALJ’s
opinion is supported by substantial evidence. Plaintiff testified before the ALJ that
she used a cane every time she left the house, but the ALJ found her testimony to
be less than credible. (R. at 30 and 50.) Plaintiff does not challenge that
credibility finding and nothing in Dr. Sripada’s mere prescription for a cane
provides evidence to indicate the frequency with which the cane should be used, its
purpose, or its limit upon Plaintiff’s ability to perform light work. Plaintiff
reported to Dr. Lazzara that she used a cane only “on occasion,” and he observed
15

that she walked with a “widebased gait without the use of an assist device.” (R. at
497, and 500.) He further found her motor strength to be normal. (R. at 500.) In
sum, there is nothing in the record to indicate that Plaintiff was required to use a
cane more than “occasionally,” let alone constantly, and that such use would
preclude her from performing light work. Case law in this district has found that
the use of a cane does not preclude light work. See Latham v. Comm’r of Soc.
Sec., No. 16-CV-10690, 2017 WL 1173773, at *3 (E.D. Mich. Mar. 30, 2017);
McCloud v. Comm’r of Soc. Sec., No. 13-14619, 2015 WL 12684332, at *1 (E.D.
Mich. Mar. 18, 2015); Perdue v. Colvin, No. 15-cv-14006, 2017 WL 362668, at *6
(E.D. Mich. Jan. 9, 2017) report and recommendation adopted 2017 WL 976790
(E.D. Mich. Mar. 14, 2017) (finding that the claimant was properly limited to light
work “given the lack of documentation that a cane was medically necessary . . . .”).
Here, substantial evidence supports the ALJ’s conclusion and Plaintiff has not
demonstrated that she is more limited than her RFC.
IV. CONCLUSION
From a review of the record as a whole, the Court concludes that the ALJ
unerringly applied the correct legal standards in reaching his decision and
substantial evidence in the record supports his findings. Accordingly, Plaintiff’s
motion is DENIED, Defendant’s motion is GRANTED, and the decision of the
Commissioner of Social Security is AFFIRMED.
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IT IS SO ORDERED.
Dated: July 21, 2017

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on July 21, 2017, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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