Stewart v. Commissioner of Social Security

Filing 17

OPINION ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TRYONE DEXTER STEWART, JR.,
Plaintiff,

Case No. 1:15-CV-0147

v.
HON. ROBERT J. JONKER
COMMISSIONER OF SOCIAL
SECURITY,

Defendant,
/
OPINION
This is a social security action brought under 42 U.S.C. § 405(g) seeking judicial
review of a final decision of the Commissioner of the Social Security Administration
(Commissioner). Plaintiff Tryone Stewart seeks review of the Commissioner’s decision denying his
claim for supplemental security income (SSI) under Title XVI of the Social Security Act.
STANDARD OF REVIEW
The Court’s jurisdiction is confined to a review of the Commissioner’s decision and
of the record made in the administrative hearing process. See Willbanks v. Sec’y of Health & Human
Servs., 847 F.2d 301, 303 (6th Cir. 1998). The scope of judicial review in a social security case is
limited to determining whether the Commissioner applied the proper legal standards in making her
decision and whether there exists in the record substantial evidence supporting that decision. See
Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). The Court may not
conduct a de novo review of the case, resolve evidentiary conflicts, or decide questions of credibility.
See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). It is the Commissioner who is charged

with finding the facts relevant to an application for disability benefits, and her findings are
conclusive provided they are supported by substantial evidence. See 42 U.S.C. § 405(g).
Substantial evidence is more than a scintilla, but less than a preponderance. See
Cohen v. Sec’y of Health & Human Servs., 964 F.2d 524, 528 (6th Cir. 1992) (citations omitted).
It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
See Richardson v. Perales, 402 U.S. 389, 401 (1971); Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir.
1993). In determining the substantiality of the evidence, the Court must consider the evidence on
the record as a whole and take into account whatever in the record fairly detracts from its weight.
See Richardson v. Sec’y of Health & Human Servs., 735 F.2d 962, 963 (6th Cir. 1984). The
substantial evidence standard presupposes the existence of a zone within which the decision maker
can properly rule either way, without judicial interference. See Mullen v. Bowen, 800 F.2d 535, 545
(6th Cir. 1986) (citation omitted). This standard affords to the administrative decision maker
considerable latitude, and indicates that a decision supported by substantial evidence will not be
reversed simply because the evidence would have supported a contrary decision. See Bogle, 998
F.2d at 347; Mullen, 800 F.2d at 545.
PROCEDURAL POSTURE
Plaintiff was 49 years of age on the date of the Administrative Law Judge’s (ALJ)
decision. (PageID.34, 55.) He attended special education classes, completed high school, and was
previously employed as a custodian. (PageID.83, 372.) Plaintiff previously applied for benefits on
March 16, 2006, that resulted in an unfavorable decision by an ALJ on August 26, 2009.
(PageID.90, 93.)

Plaintiff did not appeal that decision, and accordingly it became the

Commissioner’s final decision in the matter. In the instant case, Plaintiff applied for benefits on
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May 14, 2012. (PageID.251–56.) Plaintiff alleged that he had been disabled since October 1, 2007,
due to mild cognitive impairment, depression, back pain, leg pain, mild retardation, and back
problems. (PageID.132.) Plaintiff’s application was denied on July 3, 2012, after which time he
requested a hearing before an ALJ. (PageID.158–64.) On July 18, 2013, Plaintiff appeared with his
representative before ALJ William Reamon for an administrative hearing with testimony being
offered by Plaintiff and a vocational expert (VE). (PageID.52–88.) In a written decision dated
August 21, 2013, the ALJ determined that Plaintiff was not disabled. (PageID.34–51.) On
December 16, 2014, the Appeals Council declined to review the ALJ’s decision, making it the
Commissioner’s final decision in the matter. (PageID.24–29.) Plaintiff subsequently initiated this
action under 42 U.S.C. § 405(g).
ALJ’S DECISION
The social security regulations articulate a five-step sequential process for evaluating
disability. See 20 C.F.R. §§ 404.1520(a-f), 416.920(a-f).1 If the Commissioner can make a
dispositive finding at any point in the review, no further finding is required. See 20 C.F.R.

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1.

An individual who is working and engaging in substantial gainful activity will not be found to be
“disabled” regardless of medical findings (20 C.F.R. § 404.1520(b));

2.

An individual who does not have a “severe impairment” will not be found “disabled” (20 C.F.R.
§ 404.1520(c));

3.

If an individual is not working and is suffering from a severe impairment which meets the duration
requirement and which “meets or equals” a listed impairment in Appendix 1 of Subpart P of
Regulations No. 4, a finding of “disabled” will be made without consideration of vocational factors
(20 C.F.R. § 404.1520(d));

4.

If an individual is capable of performing work he or she has done in the past, a finding of “not
disabled” must be made (20 C.F.R. § 404.1520(e));

5.

If an individual’s impairment is so severe as to preclude the performance of past work, other factors
including age, education, past work experience, and residual functional capacity must be considered
to determine if other work can be performed (20 C.F.R. § 404.1520(f)).

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§§ 404.1520(a), 416.920(a). The regulations also provide that if a claimant suffers from a
nonexertional impairment as well as an exertional impairment, both are considered in determining
the claimant’s residual functional capacity (RFC). See 20 C.F.R. §§ 404.1545, 416.945.
Plaintiff has the burden of proving the existence and severity of limitations caused
by his impairments and that he is precluded from performing past relevant work through step four.
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). At step five, it is the
Commissioner’s burden “to identify a significant number of jobs in the economy that accommodate
the claimant’s residual functional capacity (determined at step four) and vocational profile.” Id.
ALJ Reamon determined Plaintiff’s claim failed at the fifth step of the evaluation.
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his
application date. (PageID.39.) At step two, the ALJ determined Plaintiff had the following severe
impairments: (1) degenerative disc disease of the lumbar spine (disc bulging, stenosis, facet
hypertrophy); and (2) a cognitive disorder. (PageID.39.) At the third step, the ALJ found that
Plaintiff did not have an impairment or combination of impairments that met or equaled the
requirements of the Listing of Impairments. (PageID.39–41.) At the fourth step, the ALJ found that
Plaintiff retained the RFC based on all the impairments:
to perform a range of light work as defined in 20 CFR 416.967(b) of
the Regulations. Claimant is able to lift and carry a maximum of
twenty pounds occasionally and a maximum of ten pounds frequently.
Claimant can climb ramps and stairs frequently, but can never climb
ladders, ropes, or scaffolds. He can stoop, crouch, and crawl
occasionally. There can be no more than concentrated exposure to
extreme cold and heat. Claimant can perform simple, routine, and
repetitive tasks in a work environment free of fast-paced production
requirements, involving only simple work-related decisions with few,
if any, workplace changes.

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(PageID.41.) Continuing with the fourth step, the ALJ determined that Plaintiff was unable to
perform any of his past relevant work. (PageID.44–45.)
At the fifth step, the ALJ questioned the VE to determine whether a significant
number of jobs exist in the economy which Plaintiff could perform given his limitations. See
Richardson, 735 F.2d at 964. The VE testified that there existed approximately 8,300 jobs in the
state of Michigan and 80,000 jobs in the nation such as a machine tender, inspector, and parts
polisher that an individual similar to Plaintiff could perform. (PageID.84–85.) This represents a
significant number of jobs. See Hall v. Bowen, 837 F.2d 272, 274 (6th Cir. 1988); McCormick v.
Sec’y of Health & Human Servs., 861 F.2d 998, 1000 (6th Cir. 1988).
Accordingly, the ALJ concluded that Plaintiff was not disabled at any point from
March 30, 2012, (the date of application) through August 21, 2013, (the date of the decision).
(PageID.46.)
DISCUSSION
Plaintiff’s Statement of Errors presents the following claims:
1.

The ALJ committed reversible error by adopting the previous decision in this
case;

2.

The ALJ committed reversible error by not finding that Plaintiff met MedicalVocational Listing 12.05;

3.

The ALJ committed reversible error by improperly weighing the evidence,
including relying on improper evidence from an unacceptable medical source
to support his decision; and

4.

The ALJ committed reversible error by failing to consider whether Plaintiff
would be entitled to benefits as of his 50th birthday.

(PageID.494.) The Court will discuss the issues below.

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1.
At step 3, ALJ Reamon found Plaintiff did not meet the necessary requirements to
satisfy Listing 12.05(c). ALJ Reamon noted the ALJ in Plaintiff’s prior application for benefits “did
not find that section met or medically equaled and no new evidence concerning the claimant’s
intellectual functioning has been submitted regarding the current claim. The undersigned is
persuaded and convinced of the prior decision’s rationale . . . and adopts [the] same concerning
section 12.05C.” (PageID.41.) Taking Plaintiff’s first two claims together, Plaintiff argues that the
ALJ erred both in finding that his mental impairments do not meet the criteria of Listing 12.05(C),
and in using the doctrine of res judicata as the basis for making that finding. (PageID.495–98.)
Satisfying all the criteria of Listing 12.05(C) is one way a claimant may demonstrate
that he suffers from an intellectual disability under the Listing of Impairments, so as to qualify for
benefits. In order to satisfy the requirements of Listing 12.05(C), a claimant must show that:
he experiences “significantly subaverage general intellectual
functioning with deficits in adaptive functioning [that] initially
manifested during the developmental period” (i.e., the diagnostic
description); (2) he has a “valid verbal, performance, or full scale IQ
of 60 through 70”; and (3) he suffers from “a physical or other mental
impairment imposing an additional and significant work-related
limitation of function.”
West v. Comm’r of Soc. Sec., 240 F. App’x 692, 697–98 (6th Cir. 2007) (quoting 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 12.05(C)). It is Plaintiff’s “burden at step–3 of the sequential analysis to
demonstrate that [his] impairment met or equaled all the requirements of listing 12.05.” Carter v.
Comm’r of Soc. Sec., 1:10–CV–804, 2012 WL 1028105 (W.D. Mich. Mar. 26, 2012) (citing Kyle
v. Comm’r of Soc. Sec., 609 F.3d 847, 855 (6th Cir. 2010)). An impairment that only meets some
of the criteria does not satisfy Plaintiff’s burden. Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
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As noted, whether Plaintiff meets the requirements of Listing 12.05(C) was
previously addressed by ALJ Ritter in his prior unfavorable decision that denied Plaintiff benefits.
(PageID.96–97.) In that decision, ALJ Ritter found that Plaintiff did not meet the criteria of Listing
12.05, primarily based on the fact that he did not meet the element requiring “significantly
subaverage general intellectual functioning with deficits in adaptive functioning that initially
manifested during the developmental period.” 20 C.F.R. Pt. 404, Subpt. P, A pp. 1, § 12.05(C).
Specifically, ALJ Ritter noted that while Plaintiff tested with a full scale IQ of 61 and 66, his work
history did not show a deficit of adaptive functioning. (PageID.97.)

ALJ Ritter relied on the

opinion of Plaintiff’s social worker who noted Plaintiff’s “receptive ability is best when he is given
repetitive instruction,” and noted that Plaintiff “earned substantial gainful activity for five straight
years from 1997-2001 and since for over two years beginning in September 2005, which shows
adaptive functioning with his mental impairment, and thus does not meet listing 12.05C.”
(PageID.97.)
Plaintiff’s ability to perform substantial gainful activity is relevant to whether he had
the deficits in adaptive functioning necessary to meet listing 12.05's diagnostic description. See
Cheatum v. Astrue, 388 F. App’x 574, 577 n.3 (8th Cir. 2010); see also Gulch v. Comm’r of Soc.
Sec., No. 1:11–cv–21, 2012 WL 651731, at * 7 (W.D. Mich. Feb. 28, 2012) (“[T]he fact that
Plaintiff maintained employment throughout much of her adult life is inconsistent with the
conclusion that she is [intellectually disabled]” and “indicates that Plaintiff did not experience
deficiencies in adaptive functioning prior to age 22, or thereafter for that matter.”). Moreover,
Plaintiff testified that his employment ended after he developed physical difficulties, suggesting that

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his termination came about at least in part due to his inability to perform the physical duties of the
position. (PageID.77–78.)
Though ALJ Reamon does not expressly indicate his intent to rely on res judicata in
the section devoted to the step three analysis, under the rule of Drummond v. Comm’r of Soc. Sec.,
126 F.3d 837 (6th Cir.1997), and its progeny, the ALJ was required to “adopt and be bound by the
finding of [the] claimant’s residual functional capacity or other findings required at a step of the
sequential evaluation process.” Caudill v. Comm’r of Soc. Sec., 424 F. App’x 510, 514 (6th Cir.
2011) (emphasis added); see Miller v. Comm’r of Soc. Sec., No. 12–3644, 2013 WL 1705026, at * 1
(6th Cir. Apr. 22, 2013); Haun v. Comm’r of Soc. Sec., 107 F. App’x 462, 464 (6th Cir. 2004). The
ALJ could not “redetermine the findings of a claimant’s residual functional capacity or other issues
previously determined in the absence of new and additional material evidence or changed
circumstances.” Caudill, 424 F. App’x at 514.
Plaintiff argues that the doctrine should not apply because Plaintiff was not
represented by counsel during his prior application, and that the two ALJ’s were biased against
Plaintiff. (PageID.494–96.) Plaintiff’s argument that his non-attorney representative provided
ineffective assistance is patently meritless. It is well established that there is no constitutional right
to counsel at an administrative hearing on a claim for social security benefits. See Goldburg v. Kelly,
397 U.S. 254, 270–71 (1970). Claimants may represent themselves or be represented by attorneys
or non-attorneys. 20 C.F.R. §§ 404.1705, 416.1505; see Kidd v. Comm’r of Soc. Sec., 283 F. App’x
336, 345 (6th Cir. 2008); Nichols v. Comm’r of Soc. Sec., No. 1:09–cv–1091, 2010 WL 5178069,
at *6 (W.D. Mich. Nov. 18, 2010). Nor can Plaintiff demonstrate that he was prejudiced by lack of
counsel. Plaintiff claims that he meets the requirements of Listing 12.05(C). However, as noted

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above, Plaintiff’s history of substantial gainful activity demonstrates a lack of a deficiency in
adaptive functioning, and that is fatal to his claim whether or not he was represented by counsel.
Finally, Plaintiff’s argument that the two ALJs are biased against him must fail. The
record contains no evidence that either ALJ was “biased” against Plaintiff. Plaintiff presents nothing
approaching the convincing evidence of actual bias necessary to overcome the presumption that the
ALJ was impartial. The ALJ is presumed to have exercised his powers with honesty and integrity,
and Plaintiff has the burden of overcoming the presumption of impartiality “with convincing
evidence that a risk of actual bias or prejudgment is present.” Collier v. Comm’r of Soc. Sec., 108
F. App’x 358, 364 (6th Cir. 2004) (citing Schweiker v. McClure, 456 U.S. 188, 196 (1982), and
Navistar Int’l Transp. Corp. v. EPA, 921 F.2d 1339, 1360 (6th Cir.1991)). The Court finds no
evidence that the ALJ was biased against Plaintiff, much less the convincing evidence of actual bias
that is necessary to overcome the presumption of impartiality. Accordingly, the ALJ did not err in
applying the doctrine of res judicata to the Step 3 analysis, and Plaintiff’s first two claims of error
are rejected.
2.
In Plaintiff’s third claim of error, Plaintiff argues the ALJ erred in his treatment of
the medical opinion of Dr. Chiniya Thapa, M.D., Plaintiff’s treating physician, as well as an opinion
from Mr. Ethan D. Wheeler, who Plaintiff characterizes as his caseworker, and appears to have
represented Plaintiff in his prior application for benefits. (PageID. 498–99.) The Court disagrees.
On April 3, 2013, Dr. Thapa filled out a two-page worksheet regarding Plaintiff’s
RFC. Among other things, Dr. Thapa opined that Plaintiff could not work at any job, and that this
limitation was lifelong. (PageID.434.) Dr. Thapa also opined that Plaintiff had specific limitations

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that included being able to only occasionally lift and carry twenty five pounds, and could only stand
or walk less than two hours in the workday. (PageID.434.) Plaintiff claims the ALJ failed to assign
proper weight to this opinion.
The treating physician doctrine recognizes that medical professionals who have a long
history of caring for a claimant and his maladies generally possess significant insight into his medical
condition. See Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994). An ALJ must, therefore, give
controlling weight to the opinion of a treating source if: (1) the opinion is “well supported by
medically acceptable clinical and laboratory diagnostic techniques” and (2) the opinion “is not
inconsistent with the other substantial evidence in the case record.” Gayheart v. Comm’r of Soc.
Sec., 710 F.3d 365, 375–76 (6th Cir. 2013) (quoting 20 C.F.R. § 404.1527). It appears undisputed
that Dr. Thapa qualifies as a treating physician.
The deference accorded to such opinions is appropriate, however, only where the
particular opinion “is based upon sufficient medical data.” Miller v. Sec’y of Health & Human
Servs., 1991 WL 229979 at *2 (6th Cir., Nov. 7, 1991) (citing Shavers v. Sec’y of Health & Human
Servs., 839 F.2d 232, 235 n.1 (6th Cir. 1987)). The ALJ may reject the opinion of a treating
physician where such is unsupported by the medical record, merely states a conclusion, or is
contradicted by substantial medical evidence. See Cohen, 964 F.2d at 528; Miller, 1991 WL 229979
at *2 (citing Shavers, 839 F.2d at 235 n.1); Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284,
286–87 (6th Cir. 1994).
If an ALJ accords less than controlling weight to a treating source’s opinion, the ALJ
must “give good reasons” for doing so. Gayheart, 710 F.3d at 376. Such reasons must be
“supported by the evidence in the case record, and must be sufficiently specific to make clear to any

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subsequent reviewers the weight the adjudicator gave to the treating source’s medical opinion and
the reasons for that weight.” Id. This requirement “ensures that the ALJ applies the treating
physician rule and permits meaningful review of the ALJ’s application of the rule.” Id. (quoting
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004)). Simply stating that the
physician’s opinions “are not well-supported by any objective findings and are inconsistent with
other credible evidence” is, without more, too “ambiguous” to permit meaningful review of the
ALJ’s assessment. Id. at 376–77.
If the ALJ affords less than controlling weight to a treating physician’s opinion, the
ALJ must still determine the weight to be afforded such. Id. at 376. In doing so, the ALJ must
consider the following factors: (1) length of the treatment relationship and frequency of the
examination, (2) nature and extent of the treatment relationship, (3) supportability of the opinion,
(4) consistency of the opinion with the record as a whole, (5) the specialization of the treating source,
and (6) other relevant factors. Id. (citing 20 C.F.R. § 404.1527). While the ALJ is not required to
explicitly discuss each of these factors, the record must nevertheless reflect that the ALJ considered
those factors relevant to his assessment. See, e.g., Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir.
2007); Undheim v. Barnhart, 214 F. App’x 448, 450 (5th Cir. 2007).
The ALJ gave Dr. Thapa’s opinion no weight. (PageID.44.) The ALJ noted Plaintiff
was very insistent that Dr. Thapa complete the worksheet, and did not want to undergo an assessment
to first determine his functional capacity. Indeed Dr. Thapa’s treatment notes from March 20, 2013,
show that Plaintiff insisted Dr. Thapa fill out the paperwork, and when Dr. Thapa requested Plaintiff
attend therapy first, Plaintiff declined to do so and said he had no time to attend therapy. The record
shows Dr. Thapa relented and filled out the form, apparently only after positing the form’s questions

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to Plaintiff. (PageID.445–47.) All this suggests that Dr. Thapa believed Plaintiff needed to attend
therapy first in order to render an accurate opinion, and did not really believe Plaintiff was as
impaired as was documented on the worksheet. The ALJ also noted that the opinion was
inconsistent with Dr. Thapa’s treatment notes. (PageID.44.) On January 4, 2013, Dr. Thapa noted
that Plaintiff had a mild disc bulge at the L5-S1 Level, as well as mild DJD (degenerative joint
disease) in his lower back. (PageID.440.) Despite Plaintiff’s reports of knee pain, an X-ray was
normal. (PageID.448.) Plaintiff had back and joint pain, but had no joint swelling, muscle
weakness, or neck pain. (PageID.449.) On April 3, 2013, Plaintiff’s cervical, thoracic, and lumbar
spine all had normal mobility, curvature, and had no tenderness. Plaintiff complained of pain in his
leg, but was able to walk to the exam table. (PageID.450.) All this provides substantial evidence
that Plaintiff was not as impaired as that found by the ALJ. Accordingly the ALJ provided good
reasons, supported by substantial evidence, for giving Dr. Thapa’s opinion less than controlling
weight.
Plaintiff claims, however, that the ALJ was required to give Dr. Thapa’s opinion more
weight than the opinion of Mr. Ethan Wheeler because Dr. Thapa is a physician and the
qualifications of Mr. Wheeler are unknown. (PageID.498.) Plaintiff is incorrect.
On May 20, 2013, Mr. Wheeler opined that Plaintiff was mildly limited in his ability
to understand, remember, and carry out simple instructions, and moderately impaired in his ability
to do so with complex instructions. (PageID.455.) Though Mr. Wheeler stated Plaintiff had mild
mental retardation, he stated that Plaintiff had no limitation in his ability to interact appropriately
with the public, supervisors, and co-workers. He also could respond appropriately to work situations
and changes in a routine work setting. (PageID.456.) The ALJ gave the opinion “some weight,”

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noting that while Plaintiff frequently visited Mr. Wheeler, it did not appear Mr. Wheeler was a
trained mental health professional. As such, Mr. Wheeler qualified only as an “other source.” 20
C.F.R. § 416.913(d). Opinions expressed by other sources, such as Mr. Wheeler, are not entitled to
any deference. See, e.g., Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007). Instead,
the ALJ is simply required to consider such opinions and accord such weight he finds appropriate.
See, e.g., Engebrecht v. Comm’r of Soc. Sec., 572 F. App’x 392, 397–98 (6th Cir. 2014). The ALJ
considered the opinion in question and afforded it some weight for reasons supported by the record.
Moreover, as the Commissioner correctly points out, Social Security Rulings
expressly contemplate situations where, as here, opinions from a non-acceptable source may trump
that of an acceptable source. SSR 06-03P, Titles II & XVI: Considering Opinions & Other Evidence
from Sources Who Are Not "Acceptable Med. Sources" in Disability Claims; Considering Decisions
on Disability by Other Governmental & Nongovernmental Agencies, 2006 WL 2329939 (S.S.A.
Aug. 9, 2006) (“[D]epending on the particular facts in a case, and after applying the factors for
weighing opinion evidence, an opinion from a medical source who is not an acceptable medical
source may outweigh the opinion of an acceptable medical source, including the medical opinion of
a treating source.”) (internal quotations omitted). SSRs, or Social Security Rulings, “are binding on
all components of the Social Security Administration” and “represent precedent final opinions and
orders and statements of policy and interpretations” adopted by the agency. 20 C.F.R. § 402.35(b)(1).
For those reasons, the ALJ did not err in his treatment of the opinions in the record. Accordingly,
Plaintiff’s third claim of error is rejected.

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3.
Plaintiff finally claims that because he was approaching his fiftieth birthday at the
time of the ALJ’s decision, the ALJ should have applied the Medical Vocational Guidelines
(“Grids”) to find that he was disabled.
The Grids consider four factors relevant to a particular claimant’s employability: (1)
residual functional capacity, (2) age, (3) education, and (4) work experience. 20 C.F.R., Part 404,
Subpart P, Appendix 2. Social Security regulations provide that “[w]here the findings of fact made
with respect to a particular individual’s vocational factors and residual functional capacity coincide
with all the criteria of a particular rule, the rule directs a conclusion as to whether the individual is
or is not disabled.” 20 C.F.R., Part 404, Subpart P, Appendix 2, § 200.00. In other words, a
claimant may be awarded benefits if he satisfies the requirements of one of the particular rules
correlating to a finding of disability. See Russell v. Comm’r of Soc. Sec., 20 F. Supp. 2d 1133, 1134
(W.D. Mich. 1998).
The ALJ found that Plaintiff possessed the following vocational factors: (1) was
limited to light work; (2) was a younger individual aged 18-49;2 (3) possessed at least a high school
education; and (4) had no previous work skills that were transferrable. (PageID.44–45). According
to the grids, an individual possessing these particular vocational factors is considered “not disabled.”
See 20 C.F.R., Part 404, Subpart P, Appendix 2, § 202.20. Because, however, the ALJ determined

2

The ALJ erred in using Plaintiff’s age as of the date of Plaintiff’s disability application.
(PageID.45.) The relevant time for determining a claimant’s age in applying the regulations is not
the alleged onset date, but rather the date of the ALJ’s decision. Varley v. Sec’y of Health & Human
Servs., 820 F.2d 777, 780 (6th Cir. 1987) (“the claimant's age as of the time of the decision governs
in applying the regulations”). The ALJ’s error here is harmless, however, as the Plaintiff’s age at the
date of decision of 49 is still classified as a younger individual. See 20 CFR § 416.963(c).
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Plaintiff possessed additional nonexertional impairments, the ALJ used § 202.20 as a framework and
consulted a VE as to whether jobs exist in the economy that someone similar to Plaintiff could
perform. The VE testified that there were. (PageID.84–85). Relying on the VE’s testimony,
therefore, the ALJ found that Plaintiff was not disabled. (PageID.45).
Plaintiff argues, however, that because he turned fifty less than four months after the
ALJ’s decision, the Court should follow other decisions that apply the next higher age category in
such borderline cases. (PageID.499–500.) Plaintiff suggests Rules 201.09 or 201.12 as proper rules
that would lead to a finding Plaintiff is disabled. (PageID.499.) The flaw in Plaintiff’s argument
is that the rules suggested fall under the Grid rules for an RFC of sedentary work. Even if the Court
were to adopt the higher age category, as Plaintiff suggests, Plaintiff falls under Grid Rule 202.13,
which still directs a finding of not disabled. See 20 C.F.R., Part 404, Subpart P, Appendix 2, §
202.13. Plaintiff does not argue that his RFC is unsupported by substantial evidence, nor does the
Court find a basis for so determining. Even if Plaintiff’s request to shift the age category is granted,
he cannot succeed. Accordingly, the final claim of error is rejected.
CONCLUSION
For the reasons set forth herein, the Commissioner’s decision will be AFFIRMED.
A separate judgment shall issue.

Dated:

March 14, 2016

/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE

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