Grandstaff v. Social Security
OPINION AND ORDER denying 21 Motion for Summary Judgment; granting 24 Motion for Summary Judgment. Signed by Magistrate Judge Stephanie Dawkins Davis. (THal)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 16-12724
Stephanie Dawkins Davis
United States Magistrate Judge
COMMISSIONER OF SOCIAL SECURITY,
OPINION AND ORDER
CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkt. 21, 24)
Proceedings in this Court
On July 22, 2016, plaintiff filed the instant suit seeking judicial review of
the Commissioner’s decision disallowing social security disability benefits. (Dkt.
1). Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(b)(3), District
Judge Thomas L. Ludington referred this matter to the undersigned magistrate
judge for the purpose of reviewing the Commissioner’s decision denying
plaintiff’s claims. (Dkt. 3). On September 9, 2016, the parties filed a notice of
consent to this Magistrate Judge’s authority, which was signed by Judge
Ludington on September 13, 2016. (Dkt. 15, 16). The matter is before the Court
on cross-motions for summary judgment. (Dkt. 21, 24). A hearing on the cross-
motions for summary judgment was held on June 14, 2016, pursuant to notice.
On July 21, 2013, plaintiff filed claims for period of disability and disability
insurance benefits, alleging disability beginning August 1, 2009. (Dkt. 18-2, Pg
ID 51). The Commissioner initially denied plaintiff’s disability application on
October 8, 2013. Id. Thereafter, plaintiff requested an administrative hearing, and
on February 18, 2015, she appeared without counsel before Administrative Law
Judge (“ALJ”) John A. Ransom, who considered his case de novo. (Dkt. 18-2, Pg
ID 62-80). In a February 25, 2015 decision, the ALJ determined that plaintiff was
not disabled within the meaning of the Social Security Act. Id. at Pg ID 48-58.
The ALJ’s decision became the final decision of the Commissioner on June 3,
2016, when the Social Security Administration’s Appeals Council denied
plaintiff’s request for review. Id. at Pg ID 44-46.
For the reasons set forth below, the undersigned DENIES plaintiff’s motion
for summary judgment, GRANTS defendant’s motion for summary judgment, and
AFFIRMS the findings of the Commissioner.
On the last date insured, plaintiff was 35 years old, which falls into the
category of “a younger individual.” (Dkt. 18-2, Pg ID 57). Plaintiff, a resident of
Flint, Michigan, has past relevant work as a support staff nurse aide, which is
semi-skilled and heavy in exertion, and as a sales manager, which is exertionally
sedentary and semi-skilled. Id. Plaintiff suffers from hip pain, back pain, neck
pain, and shoulder pain. (Dkt. 18-2, Pg ID 53). Plaintiff stopped working in 2009
because her physician advised her to stop working due to her back condition.
(Dkt. 18-2, Pg ID 66).
The ALJ applied the five-step disability analysis to plaintiff’s claims and
found at step one that plaintiff did not engage in any substantial gainful activity
since the alleged onset date. (Dkt. 18-2, Pg ID 53). At step two, the ALJ found
that plaintiff had the following severe impairments: left hip pain, neck and back
pain, and right shoulder pain. Id. At step three, the ALJ found that plaintiff did
not have an impairment or combination of impairments that met or equaled one of
the listings in the regulations. Id. at Pg ID 53-54. The ALJ determined that
plaintiff’s residual functional capacity (RFC) as follows:
After careful consideration of the entire record, the
undersigned finds that, through the date last insured, the
claimant had the residual functional capacity to perform
sedentary work as defined in 20 CFR 404.1567(a); with
no repetitive bending, twisting or turning; occasional
crawling, squatting, kneeling, and stair climbing;
occasional pushing or pulling; no use of air or vibrating
tools; no prolonged walking or standing; no overhead
work; occasional keyboarding and fine dexterity of the
right upper extremity with no limits on the left upper
extremity with respect to fine dexterity.
Id. at Pg ID 54. At step four, the ALJ determined that plaintiff could not perform
any past relevant work. Id. at Pg ID 57. At step five, the ALJ found that, given
plaintiff’s age, education, work experience and RFC, there are sufficient jobs that
exist in the national economy that plaintiff can perform. Id. Therefore, the ALJ
concluded that plaintiff has not been under a disability from the alleged onset date
through the last date insured. Id. at Pg ID 58.
Standard of Review
This Court has original jurisdiction to review the Commissioner’s final
administrative decision pursuant to 42 U.S.C. § 405(g). Judicial review under this
statute is limited in that the court “must affirm the Commissioner’s conclusions
absent a determination that the Commissioner has failed to apply the correct legal
standard or has made findings of fact unsupported by substantial evidence in the
record.” Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005);
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). In deciding
whether substantial evidence supports the ALJ’s decision, “we do 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); Garner v. Heckler, 745 F.2d 383,
387 (6th Cir. 1984). “It is of course for the ALJ, and not the reviewing court, to
evaluate the credibility of witnesses, including that of the claimant.” Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007). “However, the ALJ is not
free to make credibility determinations based solely upon an ‘intangible or
intuitive notion about an individual’s credibility.’” Rogers, 486 F.3d at 247,
quoting Soc. Sec. Rul. 96-7p, 1996 WL 374186, *4.
If supported by substantial evidence, the Commissioner’s findings of fact
are conclusive. 42 U.S.C. § 405(g). Therefore, this Court may not reverse the
Commissioner’s decision merely because it disagrees or because “there exists in
the record substantial evidence to support a different conclusion.” McClanahan v.
Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006); Mullen v. Bowen, 800
F.2d 535, 545 (6th Cir. 1986) (en banc). Substantial evidence is “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; Jones, 336 F.3d at 475. “The substantial evidence standard
presupposes that there is a ‘zone of choice’ within which the Commissioner may
proceed without interference from the courts.” Felisky v. Bowen, 35 F.3d 1027,
1035 (6th Cir. 1994) (citations omitted), citing Mullen, 800 F.2d at 545.
The Commissioner’s regulations provide that disability is to be determined
through the application of a five-step sequential analysis:
Step One: If the claimant is currently engaged in
substantial gainful activity, benefits are denied without
Step Two: If the claimant does not have a severe
impairment or combination of impairments, that
“significantly limits ... physical or mental ability to do
basic work activities,” benefits are denied without
Step Three: If plaintiff is not performing substantial
gainful activity, has a severe impairment that is expected
to last for at least twelve months, and the severe
impairment meets or equals one of the impairments listed
in the regulations, the claimant is conclusively presumed
to be disabled regardless of age, education or work
Step Four: If the claimant is able to perform his or her
past relevant work, benefits are denied without further
Step Five: Even if the claimant is unable to perform his
or her past relevant work, if other work exists in the
national economy that plaintiff can perform, in view of
his or her age, education, and work experience, benefits
Carpenter v. Comm’r of Soc. Sec., 2008 WL 4793424 (E.D. Mich. 2008), citing,
20 C.F.R. §§ 404.1520, 416.920; Heston, 245 F.3d at 534. “If the Commissioner
makes a dispositive finding at any point in the five-step process, the review
terminates.” Colvin, 475 F.3d at 730.
“Through step four, the claimant bears the burden of proving the existence
and severity of limitations caused by her impairments and the fact that she is
precluded from performing her past relevant work.” Jones, 336 F.3d at 474, cited
with approval in Cruse, 502 F.3d at 540. If the analysis reaches the fifth step
without a finding that the claimant is not disabled, the burden transfers to the
Commissioner. Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006).
At the fifth step, the Commissioner is required to show that “other jobs in
significant numbers exist in the national economy that [claimant] could perform
given [his] RFC and considering relevant vocational factors.” Rogers, 486 F.3d at
241; 20 C.F.R. §§ 416.920(a)(4)(v) and (g).
If the Commissioner’s decision is supported by substantial evidence, the
decision must be affirmed even if the court would have decided the matter
differently and even where substantial evidence supports the opposite conclusion.
McClanahan, 474 F.3d at 833; Mullen, 800 F.2d at 545. In other words, where
substantial evidence supports the ALJ’s decision, it must be upheld.
The Parties’ Arguments
The ALJ found the following severe impairments: left hip pain, neck and
back pain, and right shoulder pain. (Tr. 10). According to plaintiff, her medical
records are indicative of a disabled person who suffers severely from more than
merely pain in her hip, neck, back and right shoulder. Plaintiff maintains that the
ALJ’s severe impairment findings are insufficient under the law as there is an
abundance of objective medical evidence, assessments, diagnoses, procedures,
symptoms, complaints; etc. included in her medical records. At a bare minimum,
plaintiff asserts that the ALJ should have recognized a combination of more severe
and non-severe impairments.
Plaintiff points to various assessments/diagnoses including lumbar disc
protrusion; left lumbar radiculopathy; renal colic; kidney pain with nephrolithiasis
(kidney stone); cervical adonopathy; arthritic change of left hip which may be
post-traumatic; polyarthritis; helicobacter pylori infection; and obesity. (Tr. 177,
218, 269, 288, 313-314, 389, 404, 413, 436, 442, 448). Plaintiff also points to
examples of objective medical evidence to support these conditions/diagnoses: (1)
July 2010 lumbar spine MRI indicates L5-S1 disc protrusion; (2) August 2010
lumbar MRI shows stenosis from L3-S1 and a question of retrolisthesis at L5-S1;
(3) August 2010 MRI indicates spondylosis at C3-4 with right foraminal
narrowing; (4) January 2010 abdomen CT concluded Bilateral non-obstructing
small renal calculi, slightly increased in number; 1 to 2 mm partially obstructing
calculus involving the right distal ureter causing mild right sided hydronephrosic;
(5) April 2010 abdomen CT impression small bilateral non-obstructing renal
calculus; 2 cm partially obstructing calculus involving the right distal ureter
causing mild right-sided hydronsphrosis; (6) August 2010 lumbosacral spine
impression spondylosis; (7) December 2011 CT of abdomen/pelvis impression
bilateral small non-obstructing renal calculi; 3.3 cm right adnexal cyst; (8) January
2013 CT of abdomen/pelvis impression bilateral multiple non-obstructing renal
calculi; 3.5 x 3.9 cm right ednecal cyst. This remains unchanged; and
uncomplicated diverticulosis of the sigmoid colon without diverticulitis; (9) May
2013 AP view of pelvis show arthritis change of both hips but worse at the left
side compared with the right side; (10) May 2013 xray shows osteoarthritis of left
hip; (11) August 2010 cervical spine MRI impression degenerative changes worse
at C3-4 where there is canal stenosis; (12) April 2011 lumbar spine MRI indicates
L5-S1 disc protrusion; and (13) Upper GI endoscopy diagnosis gastritis. (Tr. 173,
175, 177, 202-203, 234, 246, 269, 304-305, 310, 313, 488, 541, 544).
Thus, plaintiff maintains that while she does suffer from severe impairments
of neck and back pain, right shoulder pain, and left hip pain, as the ALJ found, she
also suffers from multiple other severe impairments as indicated by the extensive
medical evidence described above. Plaintiff contends that a thorough analysis and
review of plaintiff’s medical evidence should have resulted in a finding of more
severe impairments, or at bare minimum a combination of both severe and
non-severe impairments. According to plaintiff, the ALJ failed to properly
identify and account for all severe impairments at Step 2, which should result in a
In response, the Commissioner argues that, as the Sixth Circuit has
explained, plaintiff’s argument is “misguided.” Anthony v. Astrue, 2008 WL
508008, at **5 (6th Cir. Feb. 22, 2008). Like the adjudicator in Anthony, the ALJ
here specifically found at step two that plaintiff had severe impairments. More
fully, the ALJ found that plaintiff’s following impairments were severe: left hip
pain, neck pain, back pain, and right shoulder pain. (Tr. 10). As in Anthony – and
as the ALJ here explicitly acknowledged (Tr. 9) – this finding “caused the ALJ to
consider [Plaintiff’s] severe and nonsevere impairments in the remaining [three]
steps of the sequential analysis.” Id. As in Anthony, “[t]he fact that some of
[Plaintiff’s] impairments were not deemed to be severe at step two [of the
sequential analysis] is therefore legally irrelevant.” Id. The Commissioner argues
that this Court’s inquiry into plaintiff’s lead argument properly could end at this
point. Out of an abundance of caution, however, the Commissioner makes several
observations in response to this argument.
First, the Commissioner points out that “severe” is a regulatory term of art.
It means that an impairment “significantly limits” the “ability to do basic work
activities.” 20 C.F.R. § 404.1521(a). The ALJ found that plaintiff’s left hip pain,
neck pain, back pain, and right shoulder pain were “severe” (Tr. 10), and plaintiff
does not even assert – let alone make any attempt to sustain her burden of
establishing – that any other specific impairment(s) caused any specific and
“significant” limitations in her ability to perform any specific work activities.
Thus, the Commissioner contends that plaintiff therefore waived any such
argument, and failed to satisfy her burden of establishing that an error in the ALJ’s
step-two finding caused plaintiff to suffer any prejudice.
Second, the Commissioner asserts that plaintiff misses the mark in
emphasizing that she was diagnosed with various conditions as, “[t]he mere
diagnosis of [a condition], of course, says nothing about the severity of th[at]
condition.” See Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988). For these
reasons, the Commissioner submits that plaintiff’s claim(s) of error must fail.
At step two of the sequential evaluation process, the ALJ must consider
whether a claimant has a severe impairment and whether the impairment(s) meet
the twelve month durational requirement in 20 C.F.R. § 404.1509. See 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4); see also Simpson v. Comm’r of Soc. Sec., 344
Fed. Appx. 181, 188 (6th Cir. 2009) (“At step two, if a claimant does not have a
severe medically determinable physical or mental impairment ... that meets the
durational requirement in § 404.1509 ..., or a combination of impairments that is
severe and meets the durational requirement, then [she] is not disabled.”). As
noted supra, the applicant bears the burden of establishing the existence within the
administrative record of objective medical evidence suggesting that the applicant
was “disabled” as defined by the Act. In order to be classified as severe, an
impairment or combination of impairments must significantly limit the claimant’s
physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(c),
416.920(c). Basic work activities, defined in the regulations as “the abilities and
aptitudes necessary to do most jobs,” include: (1) physical functions such as
walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or
handling; (2) capacities for seeing, hearing, and speaking; (3) understanding,
carrying out, and remembering simple instructions; (4) use of judgment; (5)
responding appropriately to supervision, co-workers, and usual work situations;
and (6) dealing with changes in routine work settings.
In the view of the Court, the Commissioner properly points out that Sixth
Circuit precedent readily establishes that failure to find an impairment severe at
step two of the sequential analysis is not reversible error if the ALJ found another
impairment severe and thus continued with the five-step evaluation. See e.g., Fisk
v. Astrue, 253 Fed. Appx. 580, 584 (6th Cir. 2007); Anthony v. Astrue, 266 Fed.
Appx. 451, 457 (6th Cir. 2008). If the ALJ continues with the remaining steps,
any error at step two is harmless, so long as the ALJ considered the effects of all
medically determinable impairments, including those deemed nonsevere. See e.g.,
Cobb v. Colvin, 2013 WL 1767938 at *4 (D. Kan. 2013) (“The Commissioner is
correct that the failure to find that additional impairments are severe is not in itself
cause for reversal. But this is true only so long as the ALJ considers the effects of
all of the claimant’s medically determinable impairments, both those he deems
severe and those not severe.”) (internal quotation marks omitted); Jackson v.
Astrue, 734 F.Supp.2d 1343, 1361 (N.D. Ga. 2010) (Where ALJ identified one
severe impairment at step two, the failure to identify additional severe
impairments at step two was harmless error in child disability case where the ALJ
considered all of the plaintiff’s impairments at other steps as demonstrated by
discussion of testimony and medical history.).
The mere fact that plaintiff has been diagnosed with other conditions is
insufficient, standing alone, to indicate that either reflects a severe impairment.
See Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988). Rather, at step two,
plaintiff must show that the conditions not deemed “severe” significantly limit her
ability to do basic work activities. Yet here, plaintiff points to no medical
opinions in the record or other evidence to suggest that these conditions limited
her or imposed any work-related limitations more than those found by the ALJ.
Therefore, any error that might exist was entirely harmless. See e.g., Leppien v.
Comm’r of Soc. Sec., 2016 WL 3661851, at *6 (W.D. Mich. July 11, 2016).
Plaintiff asserts that the ALJ erred when he concluded that plaintiff suffers
from three severe impairments – left hip pain, neck and back pain, and right
shoulder pain, but only mentions plaintiff’s back impairment at Step Three: “The
claimant’s back impairment fails to meet the requirements of listing section 1.04
or any other relevant listing section because the claimant lacks the requisite motor
and sensory deficits, and there is no evidence of spinal arachnoiditis or lumbar
spinal stenosis resulting in pseudoclaudication.” (Tr. 11). This statement is the
only sentence in the Step 3 discussion of the underlying decision. There is no
discussion of whether plaintiff’s other severe impairments – left hip pain, neck
pain, and right shoulder pain – meet any of the Listed Impairments. According to
plaintiff, the Step 3 discussion of the decision does not even mention these other
severe impairments or their respective Listings. The administrative law judge in a
Social Security Disability case has a duty under the law to examine all of
claimant's severe impairments under the appropriate listings, which, plaintiff
maintains, was not done in this case.
Further, when considering presumptive disability at Step 3, an ALJ must
analyze the claimant’s impairments in relation to the Listed Impairments, and must
give a reasoned explanation for his or her findings and conclusions in order to
facilitate meaningful review. Reynolds v. Comm’r, 424 Fed. Appx. 411, 416 (6th
Cir. 2011). According to plaintiff, it is not her responsibility to point out to the
ALJ which Listed Impairments she thinks the identified severe impairments would
equal. The decision underlying this case failed to address all of plaintiff’s severe
impairments and their relevant listings within the Step Three discussion which,
plaintiff’s says is a reversible error. Plaintiff points out the court’s observation in
another case wherein it stated:
It was not Christephore’s (Claimant) job to point the
relevant listings out to the ALJ; it was the ALJ’s job to
identify and address them. See Burnett, 220 F.3d at 120
n. 2 (“Putting the responsibility on the ALJ to identify
the relevant listed impairment(s) is consistent with the
nature of social security disability proceedings which are
inquisitorial rather than adversarial and in which it is the
ALJ’s duty to investigate the facts and develop the
arguments both for and against granting benefits.”
(citations and quotation marks omitted)). Thus, ALJ
Perez failed to identify the standard to be applied and to
apply that standard. It is impossible to determine whether
substantial evidence exists to support the ALJ’s third
Christephore v. Comm’r of Soc. Sec., 2012 WL 2274328, at *10-11 (E.D. Mich.
June 18, 2012). Plaintiff contends that here, as in Christephore, the ALJ did not
investigate the facts and develop arguments both for and against granting benefits.
The decision does not indicate that any medical evidence was examined by the
ALJ to determine that Listings were not met, and there is not even a mention of the
other severe impairment findings of neck pain, left hip pain, and right shoulder
Further, plaintiff asserts that the one sentence Step 3 discussion regarding
back pain not meeting Listing 1.04 is simply insufficient as there is no evaluation
of the medical evidence, nor does the decision include a complete explanation as
to why each section of Listing 1.04 has not been met. According to plaintiff, a
proper analysis under the law would dictate at minimum a review of the medical
documentation to determine if plaintiff would meet the listing.
In response, the Commissioner points out that the State agency physician
reviewed the evidence of record (Tr. 38-41), conducted a function-by-function
analysis of plaintiff’s work-related limitations (Tr. 43-44), then opined that
plaintiff’s impairments did not meet or equal any Listing (Tr. 42, 47). Dr. Abbasi
expressed that opinion by completing a form titled Disability Determination And
Transmittal (“DD&T Form”). (Tr. 47). As the Agency explicitly states in its
official guidance, “[t]he signature of a State agency medical or psychological
consultant on [either a DD&T Form or certain other forms] ensures that
consideration by [an expert] physician (or psychologist) designated by the
Commissioner has been given to the question” of whether a claimant’s
impairments meet or equal any Listing. Social Security Ruling (“SSR”) 96-6p,
1996 WL 374180, at *3. According to the Commissioner, the ALJ effectively
adopted that opinion when he found that plaintiff “did not have an impairment or
combination of impairments that met or medically equaled” any Listing. (Tr. 10).
The Commissioner maintains that he was entitled to do so because State agency
physicians are “highly qualified . . . experts” in the evaluation of disability under
the Act. See 20 C.F.R. § 404.1527(e)(2)(i); 20 C.F.R. § 404.1527(c)(6).
The Commissioner urges the Court to reject plaintiff’s argument that
remand is required because the ALJ failed to explicitly address why plaintiff’s left
hip pain, neck pain, and/or right shoulder pain (collectively, “Disputed
Impairments”) did not meet or equal one or more unspecified Listing(s). The
Commissioner contends that plaintiff’s reliance on Reynolds v. Comm’r of Soc.
Sec., 424 Fed. Appx. 411 (6th Cir. 2011) is misplaced. As the Sixth Circuit has
explained, Reynolds does not require remand unless the claimant can “point to
specific evidence that demonstrates he reasonably could meet or equal every
requirement of the [L]isting. Absent such evidence, the ALJ does not commit
reversible error by failing to evaluate a [L]isting at Step Three.” Smith-Johnson v.
Comm’r of Soc. Sec., 579 Fed. Appx. 426, 432 (6th Cir. Sept. 8, 2014)
(distinguishing Reynolds; internal citations omitted); see also, Forrest v. Comm’r
of Soc. Sec., 591 Fed. Appx. 359, 366 (6th Cir. Nov. 17, 2014) (remand not
required where the claimant “has not shown that his impairments met or
medically equaled in severity any listed impairment”; distinguishing Reynolds).
The Commissioner maintains that Reynolds does not require remand here because
plaintiff has not even identified any Listing that any disputed impairment allegedly
meets, let alone made any effort to sustain her heightened burden of establishing
that said impairment meets every element of that Listing. It therefore suffices to
observe that the State agency physician explicitly considered plaintiff’s left hip,
neck, and right shoulder impairments (Tr. 40-41), then opined that those
impairments did not meet or equal Listing 1.02, Listing 1.04, Listing 11.14, or any
other Listing. (Tr. 42, 47).
Next the Commissioner urges the Court to also reject plaintiff’s argument
that remand is required because the ALJ did not adequately articulate his finding
that plaintiff’s back impairment did not meet or equal Listing 1.04. Again, the
Commissioner points out that the State agency physician reviewed the evidence of
record (Tr. 38-41), conducted a function-by-function analysis of plaintiff’s
work-related limitations (Tr. 43-44), and explicitly opined that plaintiff’s back
impairment did not meet or equal Listing 1.04. (Tr. 42, 47). The Commisioner
points out that plaintiff does not even assert – let alone make any attempt to
sustain her heightened burden of establishing – that her back impairment met or
equaled Listing 1.04. As a consequence, the Commissioner maintains that she has
waived any such argument, and failed to sustain her burden of establishing that the
alleged error caused her to suffer any prejudice. For these reasons, the
Commissioner submits that plaintiff has not sustained her heightened burden of
establishing both that (1) the ALJ committed any error when he effectively
adopted the opinion of the State agency physician that plaintiff’s impairments did
not meet or equal any Listing and (2) any alleged error by the ALJ caused plaintiff
to suffer any prejudice.
Under the theory of presumptive disability, a claimant is eligible for benefits
if he or she has an impairment that meets or medically equals a Listed Impairment.
See Christephore v. Comm’r of Soc. Sec., 2012 WL 2274328, at *6 (E.D. Mich.
June 18, 2012). When considering presumptive disability at Step Three, “an ALJ
must analyze the claimant's impairments in relation to the Listed Impairments and
must give a reasoned explanation of his findings and conclusions in order to
facilitate meaningful review.” Id. (citing Reynolds v. Comm’r of Soc. Sec., 424
Fed. Appx. 411, 416 (6th Cir. 2011)). An ALJ’s failure to sufficiently articulate
his Step Three findings is error. See M.G. v. Comm’r of Soc. Sec., 861 F. Supp. 2d
846, 858-59 (E.D. Mich. 2012); see also Reynolds, 424 Fed. Appx. at 416; Tapp v.
Astrue, 2011 WL 4565790, at *5 (E.D. Ky. Sept. 29, 2012) (discussing reversal in
a series of cases where the ALJ “made only a blanket statement that the claimant
did not meet or equal a Listing section”). For example, in Andrews v. Comm’r of
Soc. Sec., 2013 WL 2200393 (E.D. Mich. May 20, 2013), plaintiff argued that the
ALJ erred in failing to consider whether her cervical and lumbar spine
impairments meet or medically equal Listing 1.04A for “disorders of the spine.”
Id. at *11. The ALJ there simply stated “[t]he claimant does not have an
impairment or combination of impairments that meets or medically equals one of
the listed impairments....” Id. The court noted that the ALJ explicitly found that
plaintiff suffers from degenerative disc disease and cervical spondylosis, and thus
“should have considered and discussed [plaintiff's] impairment(s) relative to
Listing 1.04A,” and “[h]er failure to do so constitutes legal error.” Id. at *12.
The court, however, will not overturn an ALJ’s decision if the failure to
articulate Step 3 findings was harmless. See M.G., 861 F.Supp.2d at 859. Such an
error is harmless where “concrete factual and medical evidence is apparent in the
record and shows that even if the ALJ had made the required findings, the ALJ
would have found the claimant not disabled....” Id. at 861 (citation omitted,
emphasis in original). This is because the Sixth Circuit “has consistently rejected
a heightened articulation standard, noting ... that the ALJ is under no obligation to
spell out ‘every consideration that went into the step three determination’ or ‘the
weight he gave each factor in his step three analysis,’ or to discuss every single
impairment.” Andrews, 2013 WL 2200393, at *12 (citing Staggs v. Astrue, 2011
WL 3444014, at *3 (M.D. Tenn. Aug. 8, 2011) (citation omitted)). As the Staggs
court further stated, “[n]or is the procedure so legalistic that the requisite
explanation and support must be located entirely within the section of the ALJ’s
decision devoted specifically to step three; the court in Bledsoe implicitly
endorsed the practice of searching the ALJ’s entire decision for statements
supporting his step three analysis.” Staggs, 2011 WL 3444014, at *3 (citing
Bledsoe v. Barnhart, 165 Fed. Appx. 408, 411 (6th Cir. 2006)). Thus, remand is
not required where the evidence makes clear that even if the ALJ “had made the
required findings, [she] would have found the claimant not disabled.” M.G., 861
F.Supp.2d at 861. Conversely, remand is appropriate in cases where the court’s
review of the ALJ’s decision and the record evidence leaves open the possibility
that a listing is met. See Reynolds, 424 Fed. Appx. at 416 (“in this case, correction
of such an error is not merely a formalistic matter of procedure, for it is possible
that the evidence [the plaintiff] put forth could meet this listing”).
In order for plaintiff to meet the criteria of Listing 1.04A, she must show
that she has a disorder of the spine with: “Evidence of nerve root compression
characterized by neuro-anatomic distribution of pain, limitation of motion of the
spine (atrophy with associated muscle weakness or muscle weakness)
accompanied by sensory or reflex loss and, if there is involvement of the lower
back, positive straight-leg raising test (sitting and supine).” 20 C.F.R. Pt. 404,
Subpt. P, App. 1, Listing 1.04A. It is well-settled that to “meet” a listing, a
claimant’s impairments must satisfy each and every element of the listing. See
Sullivan v. Zebley, 493 U.S. 521, 530 (1990); Blanton v. Soc. Sec. Admin., 118
Fed. Appx. 3, 6 (6th Cir. 2004). Even if plaintiff cannot demonstrate that she
meets the criteria of Listing 1.04A, however, she can still satisfy her burden at
Step Three by proving that she has an impairment (or combination of impairments)
that medically equals this Listing. To do so, she must “present medical evidence
that describes how [her] impairment is equivalent to a listed impairment.” Lusk v.
Comm’r of Soc. Sec., 106 Fed. Appx. 405, 411 (6th Cir. 2004). This means that
plaintiff must present medical findings showing symptoms or diagnoses equal in
severity and duration “to all the criteria for the one most similar listed
impairment.” Daniels v. Comm’r of Soc. Sec., 70 Fed. Appx. 868, 874 (6th Cir.
Here, plaintiff fails to offer the requisite record evidence to support her
contention that the ALJ should have found at Step Three that her lumbar
impairment satisfies the criteria of Listing 1.04A. See Roby, 48 Fed. Appx. at 536
(“The claimant has the burden at the third step of the sequential evaluation to
establish that he meets or equals a listed impairment.”) (internal citations omitted).
Plaintiff does not suggest that there is evidence in the record of nerve root
compression or muscle weakness with sensory loss. Accordingly, although the
ALJ did not provide an extensive discussion of whether plaintiff’s impairments
met or equaled Listing 1.04, a review of the ALJ’s decision and the record shows
that such an error was harmless.
As to the ALJ’s alleged failure to identify and discuss other Listings as they
might relate to plaintiff’s other areas of severe pain, the Court finds no error.
Again, plaintiff retains the burden of proving that she met or medically equaled a
Listing. See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003).
Here, plaintiff does not cite to any specific listing or explain how the evidence in
the record satisfies a listing’s criteria. Instead, she summarily states that the ALJ
failed to consider unidentified Listings that might relate to the other areas of pain
found to be severe by the ALJ. Plaintiff asserts that she is not obliged to identify
any Listings for the ALJ to consider, citing Christephore. The Court finds
Christephore to be distinguishable from the present case. There, the ALJ relied on
the Listing that included a general category of auto-immune diseases, but failed to
examined the sub-listing that specifically applied to HIV. The Court concluded
that it was not the plaintiff’s job to point the ALJ to the correct Listing that
specifically applied to HIV. Here, plaintiff does not complain that the ALJ
applied the wrong Listing. Rather, she complains that one Listing was not
correctly applied (Listing 1.04) and that some other, as yet unidentified Listing(s)
that might apply to hip pain, neck pain, and shoulder pain were not applied.
Plaintiff does not suggest that the ALJ failed to consider some subsidiary list that
more specifically applied to her severe impairments. Thus, Christophore is
In sum, the Court agrees with the Commissioner that, absent a showing by
the claimant that her impairments meet the specified listing criteria (and she has
not even identified any other Listing that should be considered), she cannot
establish actionable error, and the ALJ’s decision should be affirmed. See Harvey
v. Comm’r of Soc. Sec., 2014 WL 5465531, at *4 (E.D. Mich. Oct. 28, 2014)
(“Although the ALJ did not explain his reasoning at Step Three, Harvey has not
shown that she suffered prejudice as a result.”); Moran v. Comm’r of Soc. Sec.,
2014 WL 4197366, at *26 (E.D. Mich. Aug. 22, 2014) (“ALJ’s analysis does not
need to be extensive if the claimant fails to produce evidence that she meets the
Listing.”). Plaintiff’s Step Three argument is, therefore, rejected.
The ALJ found that plaintiff has the residual functional capacity to perform
sedentary work with the following limitations: no repetitive bending, twisting or
turning; occasional crawling, squatting, kneeling, and stair climbing; occasional
pushing or pulling; no use of air or vibrating tools; no prolonged walking or
standing; no overhead work; and occasional keyboarding and fine dexterity of the
right upper extremity with no limits on the left upper extremity with respect to fine
dexterity. (Tr. 11). According to plaintiff, the ALJ’s RFC does not comply with
the regulations and it does not accurately portray plaintiff’s impairments. In
Varley v Secretary of HHS, 820 F.2d777, 779 (6th Circuit 1987), the court stated
that the RFC assessment must accurately portray the claimant’s physical and
mental impairments. As argued earlier in this brief, the ALJ did not properly
identify all of plaintiff’s severe and/or non-severe impairments, so it would be
impossible for the ALJ to consider all of her impairments when he made his RFC
determination. Accordingly, plaintiff maintains that his RFC finding does not
comply with 20 CFR 404.1520(e), 404.1545, and SSR 96-8p.
Plaintiff further argues that there is not a scintilla of evidence to support the
RFC that plaintiff is able to perform sedentary work. Plaintiff points out that the
discussion of residual functional capacity in the decision is less than three pages
long, and the first page consists mostly of general language rather than analysis of
plaintiff’s medical evidence. (Tr. 11-13). She further avers that the portion of that
section which evaluates the medical evidence consists of merely one page, which
is insufficient considering plaintiff submitted over four hundred pages of medical
records, in addition to the other evidence in the file. (Tr. 12-13, 159-315,
318-566). Plaintiff asserts that the decision lacks a complete discussion in support
of the ALJ’s finding that she is able to perform sedentary work, and thus it does
not meet his burden of proof. Plaintiff cites Curry v. Apfel, 209 F.3d 117 (2d Cir.
2000), superseded by regulation on other grounds by 20 CFR §1560(c)(2), where
the Second Circuit found that the Commissioner had the burden at the fifth step of
the disability analysis to prove that the plaintiff could perform sedentary work. Id.
at 123. As a result of the Curry decision, the Commissioner issued AR 00-4(2),
requiring the Commissioner to re-evaluate certain cases according to the decision
in Curry.” (citation omitted). Plaintiff contends that, based on the extremely brief
discussion of medical evidence in the underlying decision, and its obvious failure
to identify all of plaintiff’s severe and/or non-severe impairments, one can
conclude that there was insufficient consideration given to all of the objective
medical records, assessments, diagnoses, and treatment, as well as her own
subjective symptoms. And, according to plaintiff, at no point in his RFC
discussion did the ALJ specify the functions that she is capable of performing. The
underlying decision in this case exhibited no attempt to reconcile Social Security
Plaintiff also argues that the ALJ’s credibility analysis contains no scrutiny
of facts to support what basically consists of two unsupported general statements.
In his decision, the ALJ states: (1) “however, the claimant’s statements concerning
the intensity, persistence and limiting effects of these symptoms are not entirely
credible for the reasons explained in this decision”; and (2) “The claimant’s
allegations are only partially credible.” (Tr. 12, 13). The ALJ does not state
which of plaintiff’s allegations he finds to be “only partially credible,” and he does
not state which of her “statements concerning the intensity, persistence and
limiting effects of these symptoms” he found to be not entirely credible. Instead,
the foregoing portion of the decision consists of conclusory statements without
any explanation or citations to the record. Per SSR 16-3p, an ALJ may not make
conclusory statements about a claimant’s subjective symptoms, but rather the ALJ
must “consider all of the evidence in an individual’s record when they evaluate the
intensity and persistence of symptoms after they find that the individual has a
medically determinable impairment(s) that could reasonably be expected to
produce those symptoms.” According to plaintiff, the general, conclusory
statements set forth above regarding her credibility and symptoms do not comply
with the Regulations.
In response, the Commissioner asserts that plaintiff’s burden on this issue is
particularly heavy because she has elected to challenge the ALJ’s finding that her
statements were not credible to the extent she alleged limitations beyond those set
forth in the RFC finding. As the Sixth Circuit has explained, this challenge
“face[s] an uphill battle,” Daniels v. Comm’r of Soc. Sec., 152 Fed. Appx. 485,
488 (6th Cir. 2005), because credibility findings are entitled to such “great weight
and deference” (id.) that they are “virtually ‘unchallengeable.’” Ritchie v. Comm’r
of Soc. Sec., 540 Fed. Appx. 508, 511 (6th Cir. 2013). The Commissioner points
out that plaintiff does not assert or establish that she had any specific,
work-related, functional limitations beyond those set forth in the highly restrictive
RFC finding. Accordingly, the Commissioner maintains that she has, therefore,
(1) waived any such argument and (2) failed to sustain her burden of establishing
that any alleged error caused her to suffer any prejudice. The Commissioner
points out that this Court’s inquiry into plaintiff’s final argument properly could
end at this point, but goes on to make additional arguments.
First, the State agency physician essentially opined that plaintiff did not
have any limitations beyond those set forth in the highly restrictive RFC finding.
Moreover, the ALJ gave plaintiff the benefit of the doubt by including several
limitations in the RFC finding that went above and beyond those opined by the
State agency physician. Compare Tr. 11 with Tr. 43-44.
Second, plaintiff relies heavily on authority that has never been the law
in this Circuit, and has not been good law anywhere for over a decade. More fully,
plaintiff relies heavily on the out-of-Circuit decision in Curry v. Apfel, 209
F.3d 117 (2d Cir. 2000), and the Agency’s Acquiescence Ruling 00-4(2)17 for the
proposition that “the Commission [sic] had the burden at the fifth step of the
disability analysis to prove that the plaintiff could perform sedentary work.” (Pl’s
Mem. 16). The Commissioner points out that AR 00-4(2) explicitly provided that
it applied only to claims in which the claimant – unlike plaintiff here – resided
within the jurisdiction of the out-of-Circuit court that decided Curry. AR 00-4(2).
Accordingly, neither Curry nor AR 00-4(2) ever applied within the Sixth Circuit.
Plaintiff also neglects to mention that the Agency amended the regulations
over a decade ago to make it clear that – contrary to Curry – the claimant (as
opposed to the Agency) has the “burden to prove what [his or her] residual
functional capacity is.” 68 FR 51317-01; 2003 WL 22001984. The Agency then
rescinded AR 00-4(2) on the ground that it had become moot. Id. Accordingly,
AR 00-4(2) is no longer good law and – as the same Court that decided Curry
acknowledged seven years ago – “the new regulations abrogate the Curry v. Apfel
standard of review.” Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009).
Third, the Commissioner contends that there is no basis in either law or
logic for plaintiff’s repeated assertions that the ALJ failed to properly consider
certain evidence because he did not explicitly address it. To the contrary, “it is
well settled that ‘[a]n ALJ can consider all the evidence without directly
addressing in his written decision every piece of evidence submitted by a party.’”
Kornecky v. Comm’r of Soc. Sec., 167 Fed. Appx. 496, 507-08 (6th Cir. 2006); see
also Thacker v. Comm’r of Soc. Sec., 99 Fed. Appx. 661, 664 (6th Cir. May 21,
2004) (“The ALJ’s failure to discuss [certain facts] does not indicate that they
were not considered.”). Significantly, the ALJ repeatedly and explicitly stated that
he carefully considered all the evidence in the entire record. (Tr. 8, 10, 12).
According to the Commissioner, it therefore suffices to observe that plaintiff does
not identify any specific evidence that the ALJ allegedly failed to consider, let
alone make any attempt to sustain her burden of establishing that such evidence
proved that she had any specific, work-related, functional limitations beyond those
set forth in the highly restrictive RFC finding. Plaintiff has therefore waived any
such argument, and failed to establish that any alleged error caused her to suffer
Fourth, the Commissioner contends that plaintiff misses the mark when she
emphasizes that “the assessment of residual functional capacity must reflect a
function-by-function analysis of an individual’s capabilities.” (Pl’s Mem. 17).
Although that is true, it is equally true that – in light of the distinction between
“what an ALJ must consider and what an ALJ must discuss in a written opinion” –
an adjudicator is not required to “‘produce [a function-by-function analysis] in
writing.’” Delgado v. Comm’r of\ Soc. Sec., 30 Fed. Appx. 542, 547-48 (6th Cir.
2002). The Commissioner concludes, therefore, that it suffices to observe that the
State agency physician – a “highly qualified . . . expert” in the evaluation of
disability under the Act – conducted a function-by-function analysis of plaintiff’s
work-related abilities (Tr. 43-44), then essentially opined that plaintiff did not
have any limitations beyond those set forth in the highly restrictive RFC finding.
Fifth, the Commissioner maintains that plaintiff does not accurately
characterize the decision when she asserts that the ALJ’s credibility finding
“basically consists of two unsupported general statements,” i.e., (a) plaintiff’s
statements “‘are not entirely credible for the reasons explained in this decision’”
(Pl’s Mem. 17, quoting Tr. 12) and (b) plaintiff’s “‘allegations are only partially
credible’” (Pl’s Mem. 18, quoting Tr. 13). To the contrary, the Commissioner
asserts that the ALJ explicitly stated – in the same paragraph containing one of the
statements that plaintiff quotes (Tr. 13) – that he discounted the credibility of
plaintiff’s allegations on the following grounds:
(1) [Plaintiff’s] allegations of disabling symptoms are
not fully substantiated.
(2) [Plaintiff] has not required recent treatment.
(3) Prior treatment records indicate [that Plaintiff] had
inconsistent complaints of pain (Exhibit 3F).
(4) There is no indication [that Plaintiff] requires
(5) EMG testing and nerve conduction studies performed
May 29, 2013, confirmed no evidence of radiculopathy
in the lower extremities (Exhibit 3F, page 7).
(6) The objective evidence is consistent with restricted
sedentary work [as described in the RFC finding].
More generally, the ALJ discounted the credibility of plaintiff’s allegations that
she had limitations beyond those set forth in the highly restrictive RFC finding on
the ground that said finding “is supported by the objective medical evidence,
including [the] lack of recent treatment and [the] findings on clinical
examination.” (Tr. 13). The Commissioner points out that plaintiff does not even
acknowledge any of these grounds, let alone make any attempt to sustain her
burden of establishing that the ALJ either failed to accurately characterize any of
the facts supporting any of those grounds, or was not legally entitled to consider
such grounds. She has, therefore, waived any challenge to those grounds.
Finally, the Commissioner contends that plaintiff does not accurately
characterize the decision when she asserts that the ALJ failed to specify the
particular statements that he found to be “not entirely credible” (Pl’s Mem. 18,
referring to Tr. 12). When an adjudicator finds that a claimant’s statements “are
not entirely credible,” then goes on to make a finding about that claimant’s RFC,
that means the claimant’s statements are not credible to the extent that he or she
alleged limitations beyond those set forth in the RFC finding. The Commissioner
says that is plainly what the ALJ meant here.
As an initial matter, plaintiff’s reliance on Curry and AR 00-4(2) is entirely
misplaced as explained in detail by the Commissioner. And, in the view of the
Court, the ALJ’s credibility analysis and resulting RFC are supported by
substantial evidence. Credibility determinations concerning a claimant’s
subjective complaints are peculiarly within the province of the ALJ. See Gooch v.
Sec’y of Health & Human Servs., 833 F.2d 589, 592 (6th Cir. 1987). “It [i]s for
the [Commissioner] and his examiner, as the fact finders, to pass upon the
credibility of the witnesses and weigh and evaluate their testimony.” Heston v.
Comm’r of Soc. Sec., 245 F.3d 528, 536 (6th Cir. 2001) (quoting Myers v.
Richardson, 471 F.2d 1265, 1267 (6th Cir. 1972)). As the Sixth Circuit has held,
determinations of credibility related to subjective complaints of pain rest with the
ALJ because “the ALJ’s opportunity to observe the demeanor of the claimant ‘is
invaluable, and should not be discarded lightly.’” Kirk v. Sec’y of Health &
Human Servs., 667 F.2d 524, 538 (6th Cir. 1981) (citation omitted). “Upon
review, [the court must] accord to the ALJ’s determinations of credibility great
weight and deference particularly since the ALJ has the opportunity, which [the
court] d[oes] not, of observing a witness’s demeanor while testifying.” Jones v.
Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003). Thus, an ALJ’s
credibility determination will not be disturbed “absent compelling reason.” Smith
v. Halter, 307 F.3d 377, 379 (6th Cir. 2001). The ALJ is not required to accept the
testimony of a claimant if it conflicts with medical reports, the claimant’s prior
statements, the claimant’s daily activities, and other evidence in the record. See
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997). Rather, when
a complaint of pain or other symptoms is in issue, after the ALJ finds a medical
condition that could reasonably be expected to produce the claimant’s alleged
symptoms, he must consider “the entire case record, including the objective
medical evidence, statements and other information provided by treating or
examining physicians . . . and any other relevant evidence in the case record” to
determine if the claimant’s claims regarding the level of his pain are credible.
SSR 96-7p, 1996 WL 374186, at *1; see also 20 C.F.R. § 416.929. Consistency
between the plaintiff’s subjective complaints and the record evidence ‘tends to
support the credibility of the [plaintiff], while inconsistency, although not
necessarily defeating, should have the opposite effect.” Kalmbach v. Comm’r of
Soc. Sec., 409 Fed. Appx. 852, 863 (6th Cir. 2011).
It is important to remember that mere diagnosis does not equate to a
disability or any particular functional limitation. See e.g., Jordan v. Colvin, 2014
WL 5796713, at *5 (E.D. Ky. Nov. 6, 2014) (“[T]the mere fact that a claimant has
been diagnosed with a variety of conditions does not equate automatically with
any functional limitation.”) (citing Parley v. Secretary of Health and Human
Services, 820 F.2d 777, 779 (6th Cir. 1987)); see also Higgs v. Bowen, 880 F.2d
860, 863 (6th Cir. 1988) (“The mere diagnosis [of a disease] says nothing about
the severity of the condition.”). With this principle in mind, the Court concludes
that the ALJ’s credibility analysis and resulting RFC are supported by substantial
evidence. The ALJ pointed to medical evidence suggesting that while plaintiff
complained of pain, her symptoms were not as severe as alleged: lumbar x-rays
showed minimal spondylosis and no acute findings; mild degenerative changes
with mild canal stenosis; EMG testing revealed no radiculopathy. (Dkt. 18-2, Pg
ID 55-56). The ALJ pointed out that plaintiff had not recently been treated, did
not require surgery, and did not always complain of pain at her office visits. (Dkt.
18-2, Pg ID 56). Yet, the ALJ plainly recognized that plaintiff had very serious
functional limitations and accordingly limited her to a reduced range of sedentary
work. See Social Security Ruling (SSR) 96-9p, 1996 WL 374185 at *3 (1996)
(“Individuals who are limited to no more than sedentary work by their medical
impairments have very serious functional limitations.”).
Plaintiff’s argument that the ALJ failed to meet the requirements of SSR
96-8p, 1996 WL 374184 regarding the narrative requirements for decisions and a
“function-by-function” analysis of plaintiff’s abilities is not well-taken. SSR
96-8p simply directs an ALJ to assess an RFC in the context of what a claimant
can do on a “regular and continuing basis.” SSR 96-8p, 1996 WL 374184, at
*1-2. There is no indication that the Ruling was intended to impose a formalistic
requirement that an ALJ expressly state that the RFC reflects a claimant’s ability
to perform the specified level of activity on a regular and continuing basis.
Delgado v. Comm'r of Soc. Sec., 30 Fed. Appx. 542, 547-48 (6th Cir. 2002)
(“Although a function-by-function analysis is desirable, SSR 96-8p does not
require ALJs to produce such a detailed statement in writing.”). An “ALJ need
only articulate how the evidence in the record supports the RFC determination,
discuss the claimant's ability to perform sustained work-related activities, and
explain the resolution of any inconsistencies in the record.” Delgado, 30 Fed.
Appx. at 548. Here, no particular inconsistencies are alleged; and the ALJ
discussed the relevant evidence, cited supporting facts and evidence, and
concluded that the evidence supporting his conclusion that plaintiff could perform
a significantly reduced range of sedentary work.
Because the ALJ reached his decision using correct legal standards and
because those findings were supported by substantial evidence, the Court must
affirm it, even if reasonable minds could disagree on whether the individual was
disabled or substantial evidence could also support a contrary result. Wright v.
Massanari, 321 F.3d 611, 614 (6th Cir. 2003); see also Longworth v. Comm’r of
Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005) (“If substantial evidence supports the
Commissioner’s decision, this Court will defer to that finding even if there is
substantial evidence in the record that would have supported an opposite
conclusion.”). The substantial evidence standard presupposes that “there is a zone
of choice within which the [ALJ] may proceed without interference from the
courts.” Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994) (internal citations
omitted). This “zone of choice” includes resolving conflicts in the evidence and
deciding questions of credibility. Gaffney v. Bowen, 825 F.2d 98, 100 (6th Cir.
1987). The undersigned concludes that the ALJ’s findings here are within that
“zone of choice” and thus supported by substantial evidence.
For the reasons set forth above, the undersigned DENIES plaintiff’s motion
for summary judgment, GRANTS defendant’s motion for summary judgment, and
AFFIRMS the findings of the Commissioner.
IT IS SO ORDERED.
Date: September 26, 2017
s/Stephanie Dawkins Davis
Stephanie Dawkins Davis
United States Magistrate Judge
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