Maier v. Social Security, Commissioner of

Filing 13

REPORT AND RECOMMENDATION re 12 and 10 MOTIONS for Summary Judgment - Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SIMEON MAIER,
Plaintiff,

CIVIL ACTION NO. 13-11130

vs.
DISTRICT JUDGE TERRENCE G. BERG
COMMISSIONER OF
SOCIAL SECURITY,

MAGISTRATE JUDGE MONA K. MAJZOUB

Defendant.
________________________/
REPORT AND RECOMMENDATION
I.

RECOMMENDATION: This Court recommends that Plaintiff’s motion for summary

judgment (docket no. 10) be DENIED and Defendant’s motion for summary judgment (docket no.
12) be GRANTED.
II.

PROCEDURAL HISTORY:
Plaintiff protectively filed a Title II application for a period of disability and disability

insurance benefits on August 20, 2009, alleging disability beginning July 15, 2009. (TR 120-26,
147). The Social Security Administration denied benefits and Plaintiff filed a request for a de novo
hearing. On December 22, 2011 Plaintiff appeared with counsel in Grand Rapids, Michigan and
testified at a video hearing held by Administrative Law Judge (ALJ) Craig Petersen, who presided
over the hearing from Mt. Pleasant, Michigan. (TR 36-60). Vocational Expert (VE) David
Holwerda also testified at the hearing. In a January 18, 2012 decision the ALJ found that Plaintiff
was not entitled to disability benefits because he remained capable of performing a significant
number of jobs in the national economy. The Appeals Council declined to review the ALJ’s
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decision and Plaintiff filed a complaint for judicial review. The parties filed cross motions for
summary judgment which are currently before the Court.
III.

PLAINTIFF'S TESTIMONY AND MEDICAL EVIDENCE

A.

Plaintiff’s Testimony
Plaintiff was fifty-one years old on his alleged disability onset date. He has a high school

diploma and he lives at home with his wife. (TR 41-42). He last worked as a journeyman
millwright welder. (TR 44). He has an unrestricted driver’s license and drove approximately twenty
minutes from Caledonia to Grand Rapids, Michigan for the hearing. (TR 42, 45).
Plaintiff testified that he has constant back aches and muscle spasms with pain radiating into
his legs, slightly worse on the right side. (TR 46). He had surgery on his right shoulder rotator cuff
one year earlier and claimed to be doing well although he stated that his shoulder will never be “100
percent.” His left shoulder is just as restricted as his right shoulder due to a birth injury. (TR 47).
He reported that he cannot straighten his left arm, raise it over his head, or rotate his shoulder. (TR
47). He can use his fingers without difficulty. His pain medication makes him tired and he takes
several naps during the day. (TR 55).
Plaintiff estimated that he can lift and carry twenty pounds but he would not want to do that
on a continuous basis. He can stand for approximately twenty minutes at a time and he can walk
for forty-five minutes at a time. (TR 49). He has an easier time walking than he does standing. He
can sit for approximately one hour at a time before he gets restless and needs to move. He has no
trouble dressing himself, buttoning buttons, and taking care of his personal hygiene. He makes
simple meals, helps his wife make the bed, occasionally washes dishes, washes the car, and sweeps
the garage. (TR 50-51). He occasionally helps watch his grandchildren. He testified that he rides

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his motorcycle once a week for a half hour at a time. (TR 51). He last went deer hunting two years
ago and he is considering going fishing. He gets along well with people. He testified that he would
have been able to continue working with a weight restriction past July 2009 if he hadn’t taken a buy
out from his company. (TR 54).
B.

Medical Evidence
The undersigned has thoroughly reviewed Plaintiff’s medical record. In lieu of summarizing

Plaintiff’s medical history, the undersigned will make references and citations to the record as
necessary in response to the parties’ arguments.
IV.

VOCATIONAL EXPERT TESTIMONY
The ALJ asked the VE to testify whether jobs were available for an individual with

Plaintiff’s age, education, and past work experience who was able to (a) lift and carry up to twenty
pounds occasionally and ten pounds frequently, (b) push and pull up to ten pounds occasionally, (c)
stand or walk up to six hours out of an eight hour work day, (d) sit up to six hours in an eight hour
work day with normal breaks, (e) occasionally climb stairs and ramps, (f) occasionally stoop, kneel,
crouch, or crawl, (g) never climb ropes, ladders, or scaffolds, (h) no overhead work, (i) no work with
arms extended at full length away from the body, (j) no forceful pushing, pulling, gripping, or
grasping, (k) no limitations in concentration, persistence, or pace and (l) no social deficits. The VE
testified that the hypothetical individual could not perform Plaintiff’s past relevant work but could
perform a wide range of light unskilled work including work as a general cashier (DOT 211.462010), riveting machine operator (DOT 699.685-030), and bottle packer (DOT 920.685-026),
comprising 50,600 jobs in the State of Michigan.
Next, the ALJ asked the VE whether jobs were available for an individual who, in addition

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to the limitations in the first hypothetical, also required simple, routine, and repetitive tasks, few
work place changes, and an option to sit or stand at will. The VE testified that an individual with
these limitations could perform the same jobs but at reduced numbers, with approximately 5,500
jobs in the State of Michigan. If the individual was off task twenty-five percent or more of any work
day and would miss three or more days per month he could not perform the listed jobs.
V.

ADMINISTRATIVE LAW JUDGE’S DETERMINATION
The ALJ found that Plaintiff meets the insured status requirements of the Social Security Act

through December 31, 2013. The ALJ further found that although Plaintiff has not engaged in
substantial gainful activity since July 15, 2009, and suffers from the severe impairments of lumbar
spine degenerative disc disease, cervical spine degenerative disc disease, left shoulder degenerative
joint disease, right shoulder degenerative joint disease, and status post rotator cuff repair, he does
not have an impairment or combination of impairments that meets or medically equals a listed
impairment. The ALJ found that Plaintiff retains the residual functional capacity (RFC) to perform
light work with the following restrictions: (a) push and pull up to ten pounds occasionally, (b) stand
or walk up to six hours out of an eight hour work day, (c) sit up to six hours in an eight hour work
day with normal breaks, (d) occasionally climb stairs and ramps, (e) occasionally stoop, kneel,
crouch, or crawl, (f) never climb ropes, ladders, or scaffolds, (g) no overhead work, (h) no work with
arms extended at full length away from the body, (i) no forceful pushing, pulling, gripping, or
grasping, (j) requires a sit stand option at will, (k) work is limited to simple, routine, and repetitive
tasks that involve simple, work related decisions with few if any work place changes, and (l) no
visual, environmental, or communication limitations or social deficits. The ALJ concluded that
while Plaintiff was not able to perform his past relevant work, he remained capable of performing

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a significant number of jobs in the national economy, and therefore he was not under a disability as
defined in the Social Security Act from July 15, 2009 through January 18, 2012, the date of the
ALJ’s decision.
VI.

LAW AND ANALYSIS

A.

Standard Of Review
Pursuant to 42 U.S.C. § 405(g), the district court has jurisdiction to review the

Commissioner’s final decisions. Judicial review under this statute is limited to determining whether
the Commissioner’s findings are supported by substantial evidence and whether the Commissioner’s
decision employed the proper legal standards. 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 support a conclusion.’ ”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)).
In determining the existence of substantial evidence, the court must examine the
administrative record as a whole. Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 536 (6th
Cir. 1981). 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.
Her v. Comm’r, 203 F.3d 388, 389-90 (6th Cir. 1999).
B.

Framework for Social Security Disability Determinations
Plaintiff’s Social Security disability determination was made in accordance with a five step

sequential analysis. In the first four steps, Plaintiff was required to show that:

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1.
2.
3.
4.

he was not engaged in substantial gainful employment; and
he suffered from a severe impairment; and
the impairment met or was medically equal to a “listed impairment;” or
he did not have the residual functional capacity to perform his past relevant work.

20 C.F.R. § 404.1520(a)-(f). If Plaintiff’s impairments prevented him from doing his past relevant
work, the Commissioner, at step five, would consider Plaintiff’s RFC, age, education and past work
experience to determine if he could perform other work. If he could not, he would be deemed
disabled. 20 C.F.R. § 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 [plaintiff] has the vocational qualifications to perform specific jobs.” Varley v. Sec’y
of Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987) (citation omitted). This “substantial
evidence” may be in the form of vocational expert testimony in response to a hypothetical question
if the question accurately portrays the plaintiff’s 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 the decision of the Secretary (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 Secretary (a sentence-six remand).”
Faucher v. Sec’y of Health & 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, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a hearing.” 42 U.S.C.
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§ 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, No. 10-207, 2011
WL 2292305, at *8 (E.D. Ky. June 8, 2011) (citing Faucher, 17 F.3d at 174).
Plaintiff argues that the ALJ failed to properly evaluate the medical opinion evidence and
formulated a hypothetical question that failed to accurately portray his limitations. Although he
challenges the ALJ’s assessment of the medical opinions of record, he does so without identifying
even a single medical opinion that was improperly evaluated. He also argues that the ALJ
formulated an inaccurate hypothetical that failed to account for his impairments, but he does not
identify any specific impairment or limitation that should have been included in the hypothetical or
the RFC. Instead, Plaintiff argues that he has lumbar and cervical spine degenerative disc disease,
left and right shoulder degenerative joint disease, and status post rotator cuff repair. He claims that
he testified that he is unable to work because of back, leg, and neck pain. He states that requiring
him to work will subject his future employers to liability. He also states in conclusory fashion that
the ALJ’s disability determination is not supported by the evidence of record. In essence he argues
that because he has documented impairments and testified that he is unable to work, the ALJ should
have found him disabled. However, he fails to provide any meaningful discussion of the medical
evidence or other evidence of record to support his arguments.
“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.” United States v. Layne, 192 F.3d 556, 566 (6th Cir. 1999)
(citation omitted). “It is not sufficient for a party to mention a possible argument in a most skeletal
way, leaving the court to . . . put flesh on its bones.” McPherson v. Kelsey, 125 F.3d 989, 995-96
(6th Cir. 1997) (citations omitted). The undersigned suggests that Plaintiff has failed to develop his

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arguments and therefore has waived his claims of error.
The record shows that the ALJ considered Plaintiff’s testimony, the objective evidence of
record, Plaintiff’s activities of daily living, and his medication side effects. The ALJ acknowledged
and found credible Plaintiff’s statements that he experiences pain if he lifts more than twenty
pounds, stands more than twenty minutes, walks more than forty-five minutes, or sits longer than
sixty minutes. He also found Plaintiff’s complaints of low back pain, leg pain, and shoulder
impairments credible, finding that his back and shoulder condition constitute severe impairments.
What he did not find credible were Plaintiff’s statements of total disability.
Plaintiff contends that the ALJ based his disability determination on his activities of daily
living. Contrary to Plaintiff’s assertion, the ALJ did not support his disability determination on the
simple fact that Plaintiff is able to wash his car and ride his motorcycle once a week. Instead, the
ALJ based his disability finding on a combination of factors, including the objective medical
evidence, medical opinion evidence, and on Plaintiff’s activities of daily living. For instance, the
ALJ cited to imaging studies which supported his conclusion. He also cited to a medical opinion
that found that Plaintiff is capable of performing light work with occasional postural limitations,
standing or walking six hours out of an eight hour work day, sitting six hours out of an eight hour
work day, with no overhead reaching. The ALJ adopted these limitations and added an additional
limitation restricting Plaintiff in his ability to reach with his right upper extremity based on the
evidence of record.
The ALJ limited Plaintiff to light work with a sit/stand option based on Plaintiff’s limitations
pertaining to lifting, sitting, standing, and walking. He restricted Plaintiff’s ability to engage in
postural activities to accommodate Plaintiff’s spinal impairments. He restricted Plaintiff’s ability

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to reach overhead and extend his arms to account for Plaintiff’s shoulder impairments, and he
limited Plaintiff to simple work in a low-stress environment with few work place changes to account
for pain and medication side effects. The ALJ posed a hypothetical question that accounted for the
limitations that he found to be credible, and he based his disability determination on VE testimony
that Plaintiff is capable of working. Plaintiff’s perfunctory argument fails to demonstrate that the
ALJ erred in assessing the medical opinion evidence or failed to account for Plaintiff’s credible
limitations in the hypothetical. Accordingly, Plaintiff’s motion for summary judgment (docket no.
10) should be denied and Defendant’s motion for summary judgment (docket no. 12) should be
granted.
REVIEW OF REPORT AND RECOMMENDATION:
The parties to this action may object to and seek review of this Report and Recommendation,
but are required to file any objections within 14 days of service, as provided for in Federal Rule of
Civil Procedure 72(b)(2) and Local Rule 72.1(d). Failure to file specific objections constitutes a
waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of
Health & Human Servs., 932 F.2d 505 (6th Cir. 1991). Filing objections that raise some issues but
fail to raise others with specificity will not preserve all the objections a party might have to this
Report and Recommendation. Willis v. Sec’y of Health & Human Servs., 931 F.2d 390, 401 (6th Cir.
1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant
to Local Rule 72.1(d)(2), any objections must be served on this Magistrate Judge.
Any objections must be labeled as “Objection No. 1,” “Objection No. 2,” etc. Any objection
must recite precisely the provision of this Report and Recommendation to which it pertains. Not
later than 14 days after service of an objection, the opposing party may file a concise response

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proportionate to the objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Local Rule 72.1(d).
The response must specifically address each issue raised in the objections, in the same order, and
labeled as “Response to Objection No. 1,” “Response to Objection No. 2,” etc. If the Court
determines that any objections are without merit, it may rule without awaiting the response.

Dated: January 10, 2014

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

I hereby certify that a copy of this Report and Recommendation was served upon Counsel
of Record on this date.
Dated: January 10, 2014

s/ Lisa C. Bartlett
Case Manager

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