Whayne v. Commissioner of Social Security, Commissioner of

Filing 18

OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 16 AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 17 - Signed by Magistrate Judge Mona K. Majzoub. (LHos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

RONALD WHAYNE,
Plaintiff,
v.

CIVIL ACTION NO. 17-cv-10262
MAGISTRATE JUDGE MONA K. MAJZOUB

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
__________________________/

OPINION AND ORDER
DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [16] AND
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [17]
Plaintiff Ronald Whayne seeks judicial review of Defendant Commissioner of Social
Security’s determination that he is not entitled to social security benefits for his physical and
mental impairments under 42 U.S.C. § 405(g). (Docket no. 1.) Before the Court are Plaintiff’s
Motion for Summary Judgment (docket no. 16) and Defendant’s Motion for Summary Judgment
(docket no. 17). With consent of the parties, this case has been referred to the undersigned to
conduct all proceedings and enter a final judgment in accordance with 28 U.S.C. § 636(c) and
Federal Rule of Civil Procedure 73. (Docket no. 15.) The Court has reviewed the pleadings,
dispenses with a hearing pursuant to Eastern District of Michigan Local Rule 7.1(f)(2), and is
now ready to rule.
I.

PROCEDURAL HISTORY
Plaintiff protectively filed an application for a period of disability and disability insurance

benefits on September 21, 2012, alleging disability beginning February 1, 2012, due to

hypertension, rheumatoid arthritis, type 2 diabetes, and a leaky heart valve. (TR 220-21, 245,
249.) The Social Security Administration denied Plaintiff’s claim on March 6, 2013, and
Plaintiff requested a de novo hearing. (TR 68-80, 118-19.) On March 20, 2014, Plaintiff
appeared with a representative and testified at the hearing before Administrative Law Judge
(ALJ) B. Lloyd Blair. (TR 30-51.) The ALJ issued an unfavorable decision on April 23, 2014,
but the Appeals Council remanded the matter for further consideration. (TR 81-102.) On
remand, Plaintiff appeared with a representative and testified at another hearing before the ALJ
on January 13, 2016. (TR 52-67.) The ALJ then issued another unfavorable decision on January
28, 2016, which the Appeals Council declined to review.

(TR 1-6, 15-24.)

Plaintiff

subsequently commenced this action for judicial review, and the parties filed cross motions for
summary judgment, which are currently before the Court.
II.

HEARING TESTIMONY AND MEDICAL EVIDENCE
Plaintiff (docket no. 16 at 8-10) and Defendant (docket no. 17 at 4-5) have set forth brief

statements regarding the facts relevant to the issue Plaintiff raises on appeal. The ALJ set forth a
detailed, factual summary of Plaintiff’s medical record and the hearing testimony. (TR 20-22,
24.) Having conducted an independent review of Plaintiff’s medical record and the hearing
transcript, the Court finds that there are no material inconsistencies among these recitations of
the record. Therefore, in lieu of re-summarizing this information, the Court will incorporate the
above-cited factual recitations by reference and will also make references and citations to the
record as necessary to address the parties’ arguments throughout this Opinion and Order.
III.

ADMINISTRATIVE LAW JUDGE’S DETERMINATION
The ALJ found that Plaintiff did not engage in substantial gainful activity from the

alleged onset date of February 1, 2012 through the date last insured of December 31, 2012. (TR

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18.)

Next, the ALJ determined that Plaintiff suffered from the severe impairments of

hypertension, diabetes mellitus with neuropathy, osteoarthritis of the hands, and obesity, but he
found that Plaintiff’s alleged mental impairment was not a medically determinable impairment.
(TR 18-19.) Additionally, the ALJ found that Plaintiff’s impairments did not meet or medically
equal the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (TR 1920.) The ALJ then found that, through the date last insured, Plaintiff had the following residual
functional capacity (RFC):
[T]he claimant had the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except: never use ladders, scaffolds or ropes;
occasionally use ramps, stairs, stoop, kneel, crouch or crawl or balance; never use
pneumatic, torque or power tools; frequently but not constantly handle or finger;
occasionally bend, twist and turn at the waist; do no commercial driving; and no
foot pedal usage.
(TR 20-23.) Subsequently, in reliance on the vocational expert’s (VE’s) testimony, the ALJ
determined that Plaintiff was capable of performing a significant number of jobs in the national
economy. (TR 23-24.) Therefore, the ALJ found that Plaintiff was not disabled under the Social
Security Act at any time from February 1, 2012, through the date last insured of December 31,
2012. (TR 16, 24.)
IV.

LAW AND ANALYSIS
A.

Standard of Review

Pursuant to 42 U.S.C. § 405(g), this Court has jurisdiction to review the Commissioner’s
final decisions. Judicial review of the Commissioner’s decisions is limited to determining
whether his findings are supported by substantial evidence and whether he employed the proper
legal standards. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Walters v. Comm’r, 127
F.3d 525, 528 (6th Cir. 1997). Substantial evidence is more than a scintilla but less than a
preponderance; it is “‘such relevant evidence as a reasonable mind might accept as adequate to
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support a conclusion.’” Richardson, 402 U.S. at 401 (quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)); Walters, 127 F.3d at 528. It is not the function of this Court to try
cases de novo, resolve conflicts in the evidence, or decide questions of credibility. See Brainard
v. Sec’y of Health and Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v. Heckler, 745
F.2d 383, 387 (6th Cir. 1984).
In determining the existence of substantial evidence, the court must examine the
administrative record as a whole. See Kirk v. Sec’y of Health and Human Servs., 667 F.2d 524,
536 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983). If the Commissioner’s decision is
supported by substantial evidence, it must be affirmed, even if the reviewing court would decide
the matter differently, Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983), and even if
substantial evidence also supports the opposite conclusion. See Her v. Comm’r, 203 F.3d 388,
389-90 (6th Cir. 1999); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc) (noting
that 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”).
B.

Framework for Social Security Determinations

Plaintiff’s Social Security disability determination was made in accordance with a fivestep sequential analysis. In the first four steps, Plaintiff was required to show that:
(1)

Plaintiff was not presently engaged in substantial gainful employment; and

(2)

Plaintiff suffered from a severe impairment; and

(3)

the impairment met or was medically equal to a “listed impairment;” or

(4)

Plaintiff did not have the residual functional capacity (RFC) to perform relevant
past work.

See 20 C.F.R. § 404.1520(a)-(f). If Plaintiff’s impairments prevented Plaintiff from doing past
work, the Commissioner, at step five, would consider Plaintiff’s RFC, age, education, and past
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work experience to determine if Plaintiff could perform other work. If not, Plaintiff would be
deemed disabled. See id. at § 404.1520(g). The Commissioner has the burden of proof only on
“the fifth step, proving that there is work available in the economy that the claimant can
perform.” Her, 203 F.3d at 391. To meet this burden, the Commissioner must make a finding
“supported by substantial evidence that [the claimant] has the vocational qualifications to
perform specific jobs.” Varley v. Sec’y of Health and Human Servs., 820 F.2d 777, 779 (6th Cir.
1987).

This “substantial evidence” may be in the form of vocational expert testimony in

response to a hypothetical question, “but only ‘if the question accurately portrays [the
claimant’s] individual physical and mental impairments.’” Id. (citations omitted).
C.

Analysis

The Social Security Act authorizes “two types of remand: (1) a post judgment remand in
conjunction with a decision affirming, modifying, or reversing a decision of the [Commissioner]
(a sentence-four remand); and (2) a pre-judgment remand for consideration of new and material
evidence that for good cause was not previously presented to the [Commissioner] (a sentence-six
remand).” Faucher v. Sec’y of Health and Human Servs., 17 F.3d 171, 174 (6th Cir. 1994)
(citing 42 U.S.C. § 405(g)). Under a sentence-four remand, the Court has the authority to “enter
upon the pleadings and transcript of the record, a judgment affirming, denying, or reversing the
decision of the [Commissioner], with or without remanding the cause for a hearing. 42 U.S.C. §
405(g). Where there is insufficient support for the ALJ’s findings, “the appropriate remedy is
reversal and a sentence-four remand for further consideration.” Morgan v. Astrue, 10-207, 2011
WL 2292305, at *8 (E.D. Ky. June 8, 2011) (citing Faucher, 17 F.3d at 174).
Plaintiff asserts that this matter should be reversed and/or remanded under sentence four
because (1) “[t]here is no substantial evidence to support the ALJ’s conclusion that Plaintiff did

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not require a cane in 2012;” and (2) “[t]he use of a cane precludes light work and thus the RFC at
issue necessarily fails to comply with applicable law.” (Docket no. 16 at 11-12.) Seemingly
with regard to his first argument, Plaintiff asserts, “[i]t is obvious that more consideration should
have been given in the RFC and the analysis of the need for a cane than to simply mention once
that, on one given date in late 2012, Plaintiff was not observed to enter the building with a cane
and to walk with no seen gait issues in an office that day.” (Id. at 12.) Presumably, Plaintiff is
referring to the ALJ’s consideration of Plaintiff’s December 2012 consultative examination
conducted by Leonidas Rojas, M.D. But contrary to Plaintiff’s assertion, that is not all the ALJ
considered in determining whether Plaintiff’s RFC included the need for a cane.
Here, the ALJ pointed out that there are only two sets of medical records in evidence that
were generated prior to Plaintiff’s date last insured of December 31, 2012 – one being a set of
treatment records from Union Lake Medical Center and the other being Dr. Rojas’s consultative
examination report. (TR 22.) The ALJ considered and discussed those treatment records in his
decision, and in doing so, he acknowledged that Plaintiff reported knee pain, that there was “no
giving out” of his knees, and that his pain was a little better with Mobic. (TR 22.) The ALJ then
highlighted the fact that there was no mention of the use of a cane in those records. (TR 22.)
The ALJ also acknowledged Plaintiff’s testimony that he started using a cane sometime in 2012
or 2013 and that he had a doctor’s prescription for the cane. (TR 21.) The ALJ then pointed out,
however, that Plaintiff’s testimony was inconsistent with the fact that Plaintiff did not require a
cane at his December 2012 consultative examination. (TR 21.) The ALJ also noted that at the
consultative examination, Plaintiff’s gait was described as stable and within normal limits, and
Plaintiff had no difficulty standing up from a chair or getting on or off the examination table.

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(TR 21, 22.) The ALJ further noted Dr. Rojas’s finding that there was no clinical evidence to
support the need for a cane. (TR 22 (citing TR 342).)
The RFC assessment is the Commissioner’s ultimate finding about the claimant’s ability
to perform work-related activities. Social Security Ruling (SSR) 96-5p, 1996 WL 374183, at *5
(July 2, 1996).

It is defined as the most, not the least, the claimant can do despite his

impairments. 20 C.F.R. §§ 404.1545(a), 416.945(a). The ALJ derives the RFC after considering
the medical and other relevant evidence in the record. Id. The above discussion demonstrates
that, in accordance with the Social Security Administration’s (SSA’s) regulations, the ALJ
weighed the medical evidence with Plaintiff’s subjective complaints and developed a physical
RFC that did not include the need for a cane based on the evidence that he found to be credible.
The ALJ’s determination that Plaintiff did not require a cane in 2012 is supported by substantial
evidence.
Moreover, as Defendant argues, Plaintiff has failed to identify any medical evidence from
the period of alleged disability that demonstrates his asserted need for a cane. (See docket no. 17
at 9-10.) Under the SSA’s regulations,
To find that a hand-held assistive device is medically required, there must be
medical documentation establishing the need for a hand-held assistive device to
aid in walking or standing, and describing the circumstances for which it is
needed (i.e., whether all the time, periodically, or only in certain situations;
distance and terrain; and any other relevant information).
Social Security Regulation (SSR) 96-9p, 1996 WL 374185, at *7 (S.S.A. July 2, 1996). The
only record evidence that Plaintiff cites to show that he needs a cane is his testimony that he had
a doctor’s prescription for the cane and his 2012 treatment records. (See docket no. 16 at 8-9.)
As discussed above, however, Plaintiff’s treatment records do not mention the use of a cane, and
Plaintiff has not produced a prescription or any other medical documentation that establishes that

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he needed a cane for any purpose during the insured period of disability. Plaintiff has not met
his burden under SSR 96-9p.
In light of the fact that Plaintiff has failed to establish that a cane was medically
necessary during the alleged period of disability, Plaintiff’s second argument – that his use of a
cane precludes the RFC for light work assessed by the ALJ – necessarily fails. And it also fails
on the merits. In making this argument, Plaintiff recites the definition of light work and asserts
that the use of a cane does not comport with the requirements of light work; he further asserts
that the use of a cane precludes work above the sedentary level. (Docket no. 16 at 11-12 (citing
SSR 83-12 and POMS § DI 25020.005A5).) The authority upon which Plaintiff relies in this
regard relates, in relevant part, to a claimant’s loss of use of an upper extremity, not to a
claimant’s need to use a cane, and Plaintiff develops no argument regarding how these two issues
could be related. The Court is not obligated to address perfunctory arguments or develop them
on Plaintiff’s behalf, and it declines to do so here. See Bush v. Astrue, No. 12-11790, 2013 WL
1747807, at *14 (E.D. Mich. Jan. 25, 2013) (Grand, M.J.) (citation omitted).
SSR 96-9p, the regulation that specifically addresses hand-held assistive devices,
discusses an individual’s ability to perform sedentary work in conjunction with the use of a cane,
and it instructs that “it may be especially useful to consult a vocational resource in order to make
a judgment regarding the individual’s ability to make an adjustment to other work.” SSR 96-9p,
1996 WL 374185, at *7. The ALJ did so here. At the hearing, the ALJ asked the VE if an
individual with Plaintiff’s RFC for a limited range of light work and who also required a cane to
ambulate would be able to perform a significant number of jobs existing in the regional and
national economy. (TR 63-64.) The VE responded in the affirmative and identified several
thousand jobs at the light level that such an individual, i.e., Plaintiff, could perform if he also

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required a cane to ambulate. (TR 64-65.) Plaintiff’s argument that his use of a cane precludes
his ability to perform light work is therefore unavailing.
Accordingly, IT IS ORDERED that Plaintiff's Motion for Summary Judgment [16] is
DENIED, and Defendant’s Motion for Summary Judgment [17] is GRANTED.

Dated: March 12, 2018

s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE
I hereby certify that a copy of this Opinion and Order was served upon counsel of record
on this date.
Dated: March 12, 2018

s/ Leanne Hosking
Case Manager

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