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Johnson v. Astrue

March 18, 2008

KIMBERLY R. JOHNSON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Thomas A. Varlan United States District Judge

(VARLAN/SHIRLEY)

MEMORANDUM OPINION

This social security appeal is before the Court for consideration of plaintiff's objections [Doc. 15] to the report and recommendation ("R&R") filed by United States Magistrate Judge C. Clifford Shirley [Doc. 14]. Magistrate Judge Shirley found that the Commissioner's decision that plaintiff is not disabled under sections 216(i) and 223(d) is supported by substantial evidence in the record as a whole and that remand is inappropriate under sentence six of 42 U.S.C. § 405(g). Accordingly, Magistrate Judge Shirley recommended that plaintiff's motion for summary judgment [Doc. 10] be denied and that defendant's motion for summary judgment [Doc. 12] be granted.

Plaintiff filed an application for a period of disability and disability insurance benefits with the Social Security Administration which was denied both initially and upon reconsideration. Plaintiff requested a hearing to review the denial of her claim which was heard by an Administrative Law Judge ("ALJ") on August 22, 2006. On September 12, 2006, the ALJ issued his decision finding that plaintiff was not disabled because she can perform a reduced range of light work activity. Plaintiff appealed the ALJ's decision and submitted new evidence to the Appeals Council. The Appeals Council denied plaintiff's request for review and thus, the decision of the ALJ became the final decision of the Commissioner. Plaintiff filed a complaint before this Court for judicial review of the Commissioner's decision [Doc. 1]. The parties filed cross-motions for summary judgment [Docs. 10, 12], on which Magistrate Judge Shirley issued his R&R [Doc. 14].

I. Standard of Review

The Court must conduct a de novo review of portions of the magistrate judge's R&R to which a party objects unless the objections are frivolous, conclusive, or general. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Smith v. Detroit Fed'n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987); Mira v. Marshall, 806 F.2d 636 (6th Cir. 1986). The Court must determine whether the Commissioner applied the proper legal standards and whether the Commissioner's findings are supported by substantial evidence based upon the record as a whole. Longworth v. Comm'r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005). Substantial evidence is more than a scintilla but less than a preponderance. Stanley v. Sec'y of Health & Human Servs., 39 F.3d 115, 117 (6th Cir. 1994). The substantial evidence standard of judicial review requires that the Court accept the Commissioner's decision if a reasonable mind might accept the evidence in the record as adequate to support the Commissioner's conclusions. Smith v. Sec'y of Health & Human Servs., 893 F.2d 106, 108 (6th Cir. 1989) (citations omitted). If substantial evidence supports Commissioner's decision, it is irrelevant whether the record could support a decision in the plaintiff's favor or whether the Court would have decided the case differently. Id.; Crisp v. Sec'y of Health & Human Servs., 790 F.2d 450, 453 n.4 (6th Cir. 1986).

II. Analysis

As required by 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), this Court has now undertaken a de novo review of those portions of the R&R to which plaintiff objects. In considering the plaintiff's objections to Magistrate Judge Shirley's determination, the Court has independently reviewed the entire record, including the R&R and the administrative record. For the reasons that follow, plaintiff's objections will be overruled.

A. Objection to the ALJ's Failure to Find Plaintiff's Obesity Severe and Failure to Consider its Impact on Plaintiff's Ability to Work

Plaintiff first objects that the ALJ's failure to find plaintiff's obesity to be severe and the ALJ's failure to consider its impact on her ability to work. Relying on Social Security Ruling 02-1p, plaintiff contends that the ALJ erred by not mentioning plaintiff's obesity in his decision or considering its impact on her other impairments and ability to work. Social Security Ruling 02-1p states:

When establishing the existence of obesity, we will generally rely on the judgment of a physician who has examined the claimant and reported his or her appearance or build, as well as weight and height. Thus, in the absence of evidence to the contrary in the case record, we will accept a diagnosis of obesity given by a treating source or a consultative examiner.

The ALJ was not required to consider whether plaintiff's obesity was a severe impairment because he determined that one of plaintiff's other impairments was severe. Determination of whether a claimant is disabled requires the ALJ to follow a five-step analysis. 20 C.F.R. § 404.1520. The second step requires that the ALR determine whether the claimant has a severe impairment. Id. at § 404.1520(a)(4)(ii). "[U]pon determining that a claimant has one severe impairment, the Secretary [or the Commissioner] must continue with the remaining steps in his disability evaluation." Maziarz v. Sec'y of Health and Human Servs., 837 F.2d 240, 244 (6th Cir. 1987); see also 20 C.F.R. § 404.1520. In Maziarz, the claimant made the argument that the Secretary of Health and Human Services erred in failing to find that claimant's cervical condition constituted a severe impairment. 837 F.2d at 244. The Sixth Circuit disagreed with the argument, finding no error because the Secretary found that the claimant suffered from another severe impairment and moved on to the next step in the analysis. Id. The same is true here. The ALJ found that plaintiff's degenerative disc disease of the cervical and lumbar spine was a severe impairment and then moved on to the remaining steps in the analysis. (Tr. at 22.) Accordingly, determination of whether any of plaintiff's other impairments, including obesity, are severe was not necessary.

Plaintiff further argues that the ALJ erred in failing to consider plaintiff's degenerative disc disease in combination with her obesity and therefore the ALJ's determination of plaintiff's ability to work is not supported by substantial evidence. In considering whether a claimant is disabled and unable to work, "the Commissioner of Social Security shall consider the combined effect of all of the individual's impairments without regard to whether any such impairment, if considered separately, would be of such severity." 42 U.S.C. § 423(d)(2)(B). The regulations on this section state in part:

The combined effects of obesity with musculoskeletal impairments can be greater than the effects of each of the impairments considered separately. Therefore, when determining whether an individual with obesity has a listing-level impairment or combination of impairments, and when assessing a claim at other steps of the sequential evaluation process, including when assessing an individual's ...


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