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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

WILLIAM A. SMITH,

Plaintiff,

v.

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

 /

Case No. 08-14986

Honorable Patrick J. Duggan

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, DENYING

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND REMANDING

MATTER FOR FURTHER REVIEW

 At a session of said Court, held in the U.S.

District Courthouse, Eastern District

of Michigan, on March 24, 2010.

PRESENT: THE HONORABLE PATRICK J. DUGGAN

U.S. DISTRICT COURT JUDGE

Plaintiff applied for Social Security Disability Insurance Benefits on September

20, 2007, alleging that he became disabled on July 18, 2005. The Social Security

Administration denied Plaintiff’s request for benefits initially. Upon Plaintiff’s request, a

hearing before an administrative law judge (“ALJ”) was held on June 4, 2008. The ALJ

found that Plaintiff was not disabled in a decision dated October 10, 2008. The Appeals

Council, after reviewing additional documents submitted by Plaintiff, denied Plaintiff’s

request for review on November 21, 2008. Thus the ALJ’s decision became the final
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decision of the Social Security Commissioner (“Commissioner”). Plaintiff thereafter

initiated the pending action.

Both parties have filed motions for summary judgment, which this Court referred

to Magistrate Judge Michael Hluchaniuk. On February 22, 2010, Magistrate Judge

Hluchaniuk filed his Report and Recommendation (R&R) recommending that this Court

deny Plaintiff’s and the Commissioner’s motions and remand the matter to the

Commissioner for further review consistent with the R&R. At the conclusion of the

R&R, Magistrate Judge Hluchaniuk advises the parties that they may object and seek

review of the R&R within fourteen days of service upon them. (R&R at 32.) Magistrate

Judge Hluchaniuk specifically warns the parties that “[f]ailure to file specific objections

constitutes a waiver of any further right of appeal.” (Id.)

Plaintiff filed objections to the R&R on March 5, 2010. The Commissioner filed a

response to Plaintiff’s objections on March 19, 2010. The matter now is ripe for this

Court’s review.

Standard of Review

Under 42 U.S.C. Section 405(g):

Any individual, after any final decision of the Commissioner

of Social Security made after a hearing to which he was a

party . . . may obtain a review of such decision by a civil

action . . . The court shall have the power to enter . . . a

judgment affirming, modifying, or reversing the decision of

the Commissioner of Social Security, with or without

remanding the cause for a rehearing. The findings of the

Commissioner of Social Security as to any fact, if supported

by substantial evidence, shall be conclusive . . .
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42 U.S.C. § 405(g) (emphasis added); see Boyes v. Sec’y of Health and Human Servs., 46

F.3d 510, 511-12 (6th Cir. 1994). “Substantial evidence is defined as ‘such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.’” 

Abbott v. Sullivan, 905 F.2d 918, 922-23 (6th Cir. 1990) (quoting Richardson v. Perales,

402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971)). The Commissioner’s findings are not

subject to reversal because substantial evidence exists in the record to support a different

conclusion. Mullen v. Brown, 800 F.2d 535, 545 (6th Cir. 1986) (citing Baker v. Kechler,

730 F.2d 1147, 1150 (8th Cir. 1984)). If the Commissioner’s decision is supported by

substantial evidence, a reviewing court must affirm. Studaway v. Sec’y of Health and

Human Servs., 815 F.2d 1074, 1076 (6th Cir. 1987).

The court reviews de novo the parts of an R&R to which a party objects. See FED.

R. CIV. P. 72(b); Thomas v. Halter, 131 F. Supp. 2d 942, 944 (E.D. Mich. 2001). 

However, the Court “is not required to articulate all the reasons it rejects a party’s

objections.” Id.

Analysis

An ALJ considering a disability claim is required to follow a five-step process to

evaluate the claim. 20 C.F.R. § 404.1520(a)(4). If the ALJ determines that the claimant

is disabled or not disabled at a step, the ALJ makes his or her decision and does not

proceed further. Id. However, if the ALJ does not find that the claimant is disabled or

not disabled at a step, the ALJ must proceed to the next step. Id. “The burden of proof is

on the claimant through the first four steps . . . If the analysis reaches the fifth step
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The ALJ concluded that Plaintiff had not engaged in substantial gainful activity since

July 18, 2005. (A.R. at 31.)

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The ALJ concluded that Plaintiff had the following severe impairments: status post left

(non dominant) shoulder surgery. (A.R. at 31.) 

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The ALJ analyzed whether Plaintiff’s impairments met any of the listed impairments and

determined that they did not. (A.R. at 31.)

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The ALJ found that Plaintiff would have the residual functional capacity to:

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without a finding that the claimant is not disabled, the burden transfers to the

[defendant].” Preslar v. Sec’y of Health and Human Servs., 14 F.3d 1107, 1110 (6th Cir.

1994); see also Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct. 2287, 2294 n.5

(1987).

The ALJ’s five-step sequential process is as follows:

1. At the first step, the ALJ considers whether the claimant is currently

engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i).1

 

2. At the second step, the ALJ considers whether the claimant has a severe

medically determinable physical or mental impairment that meets the

duration requirement of the regulations and which significantly limits the

claimant’s ability to do basic work activities. 20 C.F.R. §§

404.1520(a)(4)(ii) and (c).2

3. At the third step, the ALJ again considers the medical severity of the

claimant’s impairment to determine whether the impairment meets or equals

an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20

C.F.R. § 404.1520(a)(4)(iii). If the claimant’s impairment meets any

Listing, he or she is determined to be disabled regardless of other factors.3

Id. 

4. At the fourth step, the ALJ assesses the claimant’s residual functional

capacity and past relevant work to determine whether the claimant can

perform his or her past relevant work.4

 20 C.F.R. § 404.1520(a)(4)(iv). 
to perform light work as defined in 20 CFR 404.1567(b) as

follows: sit/stand/walk for 6 out of 8 hours with normal breaks; lift

and/or carry a maximum of 20 pounds occasionally and 10 pounds

frequently; occasionally climb ladders, ropes, or scaffolds and

occasionally crawl; with the left non-dominant upper extremity

could never engage in overhead reaching.

(A.R. at 32.) The ALJ further concluded that, based on these limitations, Plaintiff could not

perform his past work as a bricklayer. (A.R. at 34.)

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The ALJ determined that considering Plaintiff’s age, educational background, work

experience, and residual functional capacity, there are a significant number of jobs in the

national economy that Plaintiff can perform. (A.R. at 35.) The ALJ therefore concluded that

Plaintiff is not under a “disability” as defined in the Social Security Act. (Id.)

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5. At the fifth step, the ALJ considers the claimant’s residual functional

capacity, age, education, and past work experience to see if he can do other

work. 20 C.F.R. § 404.1420(a)(4)(v). If there is no such work that the

claimant can perform, the ALJ must find that he or she is disabled.5

 Id.

Magistrate Judge Hluchaniuk found several errors in the ALJ’s analysis.

Magistrate Judge Hluchaniuk found that the ALJ’s stated reasons for finding

Plaintiff not credible and disregarding his treating physician’s opinion were not supported

by the evidence in the record. The magistrate judge also concluded that the ALJ’s

decision reflects a failure to examine and consider medical and other evidence in the

record. Magistrate Judge Hluchaniuk was troubled by the ALJ’s use of Plaintiff’s

continued smoking against medical advice to support his credibility findings, particularly

where Plaintiff’s disability is not-related to the negative effects of smoking. Magistrate

Judge Hluchaniuk therefore recommended that the matter be remanded to the

Commissioner for further review.

As indicated previously, Plaintiff filed objections to the R&R. Not surprisingly,
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Plaintiff does not disagree with the magistrate judge’s analysis of the ALJ’s decision. He

does disagree, however, with the magistrate judge’s recommended method for resolving

the error. Plaintiff argues that, instead of remanding the matter for further evaluation, the

matter should be remanded to the Commissioner for calculation and payment of benefits.

The Commissioner argues in response that, pursuant to Sixth Circuit precedent (as

opposed to the Ninth Circuit decisions on which Plaintiff relies), a judicial award of

benefits cannot be made and the matter must be remanded for further evaluation by the

Commissioner.

The Commissioner is correct. As the Sixth Circuit has instructed: “A judicial

review of benefits is proper only where the proof of disability is overwhelming or where

the proof of disability is strong and evidence to the contrary is lacking.” Kennedy v.

Astrue, 247 Fed. App’x 761, 768 (6th Cir. 2007) (citing Mowery v. Sec’y of Health and

Human Servs., 771 F.2d 966, 973 (6th Cir. 1985). This is not the case here.

Therefore, the Court concurs with Magistrate Judge Hluchaniuk that this matter

must be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). 

Because the Court also agrees with Magistrate Judge Hluchaniuk that the ALJ’s decision

was not supported by substantial evidence, it is granting in part Plaintiff’s motion for

summary judgment (rather than denying it completely as recommended in the R&R).

Accordingly,

IT IS ORDERED, that the Court adopts Magistrate Judge Hluchaniuk’s Report

and Recommendation to REVERSE the decision of the Commissioner and REMAND
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for further proceedings consistent with the R&R pursuant to Sentence four of 42 U.S.C.

§ 405(g);

IT IS FURTHER ORDERED, that Plaintiff’s motion for summary judgment is

GRANTED IN PART AND DENIED IN PART and the Commissioner’s motion for

summary judgment is DENIED.

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copies to:

Kenneth F. Laritz, Esq.

AUSA Judith Levy

Magistrate Judge Michael Hluchaniuk