Report and Recommendation

Cross-Motions for Summary Judgment

1 Gaskin v. Comm’r; Case No. 09-13243

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KEITH P. GASKIN, Case No. 09-13243

Plaintiff, Paul D. Borman

vs. United States District Judge

COMMISSIONER OF Michael Hluchaniuk

SOCIAL SECURITY, United States Magistrate Judge

Defendant.

 /

REPORT AND RECOMMENDATION

CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkt. 14, 17)

I. PROCEDURAL HISTORY

A. Proceedings in this Court

On August 18, 2009, plaintiff filed the instant suit seeking judicial review

of the Commissioner’s unfavorable decision disallowing benefits. (Dkt. 1). 

Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(b)(3), District Judge

Paul D. Borman referred this matter to the undersigned for the purpose of

reviewing the Commissioner’s decision denying plaintiff’s claim for a period of

disability, disability insurance, and supplemental security income benefits. (Dkt.

3). This matter is before the Court on cross-motions for summary judgment. (Dkt.

14, 17).

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1

 Presumably the onset date was amended from July 2002 as set forth on the

application, given that plaintiff had received an earlier decision, not part of this

record, denying benefits from July 2002 through January 2006.

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B. Administrative Proceedings

Plaintiff filed the instant claims on February 21, 2007, alleging that he

became unable to work on January 11, 2002. (Dkt. 12, Tr. at 11, 43, 79-83). The

claim was initially disapproved by the Commissioner on May 18, 2007. (Dkt. 12,

Tr. at 50-53). Plaintiff requested a hearing and on March 26, 2009, plaintiff

appeared with counsel before Administrative Law Judge (ALJ) Mary Connolly,

who considered the case de novo. At the hearing, plaintiff, through counsel,

amended the alleged onset date of disability to February 15, 2007. (Dkt. 12, Tr. at

11).1

 In a decision dated April 23, 2009, the ALJ found that plaintiff was disabled,

as of February 15, 2007, the date of application. (Dkt. 12, Tr. at 38-49). Plaintiff

requested a review of this decision on June 3, 2009 with respect to the onset date

only, claiming that the ALJ should have awarded benefits back to 2002. (Dkt. 12,

Tr. at 4). The ALJ’s decision became the final decision of the Commissioner when

the Appeals Council, on July 16, 2009, denied plaintiff’s request for review. (Dkt.

12, Tr. at 1-3); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir.

2004).

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C. ALJ Findings

Plaintiff was 42 years of age at the time of the most recent administrative

hearing. (Dkt. 12, Tr. at 10). Plaintiff’s relevant work history included

approximately fifteen years as a machine tender/laborer. (Dkt. 12, Tr. at 99). In

denying plaintiff’s claims, defendant Commissioner considered degenerative disc

disease of the lumbar spine as a possible bases of disability. (Dkt. 12, Tr. 45).

The ALJ applied the five-step disability analysis to plaintiff’s claim and

found at step one that plaintiff had not engaged in substantial gainful activity since 

February 15, 2007. (Dkt. 12, Tr. at 45). At step two, the ALJ found that plaintiff’s

impairment was “severe” within the meaning of the second sequential step. Id. At

step three, the ALJ found no evidence that plaintiff’s combination of impairments

met or equaled one of the listings in the regulations. Id. At step four, the ALJ

found that plaintiff could not perform his previous work as a machine

tender/laborer. (Dkt. 12, Tr. at 10, 47). At step five, the ALJ determined that

plaintiff had been under a disability as defined in the Social Security Act since

February 15, 2007, the application date. (Dkt. 12, Tr. at 48).

For the reasons set forth below, the undersigned RECOMMENDS that

plaintiff’s motion for summary judgment be DENIED, that defendant’s motion for

summary judgment be GRANTED, and that the findings of the Commissioner be

AFFIRMED.

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II. ANALYSIS AND CONCLUSION

A. Standard of Review

In enacting the social security system, Congress created a two-tiered system

in which the administrative agency handles claims, and the judiciary merely

reviews the agency determination for exceeding statutory authority or for being

arbitrary and capricious. Sullivan v. Zebley, 493 U.S. 521 (1990). The

administrative process itself is multifaceted in that a state agency makes an initial

determination that can be appealed first to the agency itself, then to an ALJ, and

finally to the Appeals Council. Bowen v. Yuckert, 482 U.S. 137 (1987). If relief is

not found during this administrative review process, the claimant may file an

action in federal district court. Mullen v. Bowen, 800 F.2d 535, 537 (6th Cir.

1986).

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

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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); Jones v. Comm’r of Soc.

Sec., 336 F.3d 469, 475 (6th Cir. 2003) (an “ALJ is not required to accept a

claimant’s subjective complaints and may ... consider the credibility of a claimant

when making a determination of disability.”); Cruse v. Comm’r of Soc. Sec., 502

F.3d 532, 542 (6th Cir. 2007) (the “ALJ’s credibility determinations about the

claimant are to be given great weight, particularly since the ALJ is charged with

observing the claimant’s demeanor and credibility.”) (quotation marks omitted);

Walters, 127 F.3d at 531 (“Discounting credibility to a certain degree is

appropriate where an ALJ finds contradictions among medical reports, claimant’s

testimony, and other evidence.”).

 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

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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 scope of this Court’s review is limited to an examination of the record

only. Bass, 499 F.3d at 512-13; Foster v. Halter, 279 F.3d 348, 357 (6th Cir.

2001). When reviewing the Commissioner’s factual findings for substantial

evidence, a reviewing court must consider the evidence in the record as a whole,

including that evidence which might subtract from its weight. Wyatt v. Sec’y of

Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). “Both the court of

appeals and the district court may look to any evidence in the record, regardless of

whether it has been cited by the Appeals Council.” Heston v. Comm’r of Soc. Sec.,

245 F.3d 528, 535 (6th Cir. 2001). 

B. Governing Law

The “[c]laimant bears the burden of proving his entitlement to benefits.” 

Boyes v. Sec’y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994);

accord, Bartyzel v. Comm’r of Soc. Sec., 74 Fed.Appx. 515, 524 (6th Cir. 2003). 

There are several benefits programs under the Act, including the Disability

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Insurance Benefits Program (“DIB”) of Title II (42 U.S.C. §§ 401 et seq.) and the

Supplemental Security Income Program (“SSI”) of Title XVI (42 U.S.C. §§ 1381

et seq.). Title II benefits are available to qualifying wage earners who become

disabled prior to the expiration of their insured status; Title XVI benefits are

available to poverty stricken adults and children who become disabled. F. Bloch,

Federal Disability Law and Practice § 1.1 (1984). While the two programs have

different eligibility requirements, “DIB and SSI are available only for those who

have a ‘disability.’” Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). 

“Disability” means:

inability to engage in any substantial gainful activity by

reason of any medically determinable physical or mental

impairment which can be expected to result in death or

which has lasted or can be expected to last for a

continuous period of not less than 12 months.

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); see also, 20 C.F.R. § 416.905(a)

(SSI). 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.

C. The Parties’ Arguments

In this case, plaintiff argues a slightly different issue than that raised to the

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Appeals Council. Plaintiff’s request is more narrowly tailored and focuses on 42

U.S.C. § 423(b), which provides that, regardless of actual onset date, a claimant is

allowed no more than 12 months of benefits preceding the date the claim was filed. 

Thus, plaintiff argues that the ALJ should have awarded benefits for the 12 month

period prior to the date plaintiff filed the claim, rather than using the date the claim

was filed as the onset date. The sole issue presented on appeal is plaintiff’s claim

that he is entitled to 12 months of retroactive benefits from the date of application. 

Meaning, this section allowed plaintiff’s onset date to be February 15, 2006, not

February 15, 2007. According to plaintiff, due to the ineffective assistance of

previous counsel, plaintiff did not receive the benefits to which he was entitled for

that 12 month period. 

In response, the government argues that plaintiff failed to exhaust his

administrative remedies with respect to the issue of disability before February 2007

because he did not ask the ALJ to decide this issue. Indeed, he expressly informed

the ALJ that he was only alleging disability since February 15, 2007. (Tr. 11). 

The Commissioner acknowledges that plaintiff raised the issue with the Appeals

Council, but argues that does not matter because when that body denies review it is

the decision of the ALJ which is final and role of the Appeals Council is to review

ALJ decisions, not to decide issues de novo. 20 C.F.R. § 404.970 (stating that the

Appeals Council will review a case if there appears to be an abuse of discretion,

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error of law, lack of substantial evidence, broad policy or procedural issue of

importance to the public interest, or new and material evidence contrary to the

weight of the evidence of record). By informing the ALJ that he was not seeking a

determination of disability prior to February 2007, the Commissioner argues that

plaintiff essentially prevented the administrative process from working properly

and therefore, failed to exhaust. The Commissioner also argues that plaintiff

should be bound by his attorney’s statement and that the substantial evidence

supports a conclusion that plaintiff was not disabled earlier.

D. Analysis

In the view of the undersigned, the real issue presented is not whether

plaintiff exhausted his claims, but rather, whether the ALJ’s decision that

plaintiff’s onset date was February 15, 2007 is supported by substantial evidence. 

Social Security Ruling 83-20 governs the determination of disability onset date.

Once a finding of disability is made, the ALJ must determine the onset date of the

disability. See Key v. Callahan, 109 F.3d 270, 274 (6th Cir. 1997). The ruling

states, in relevant part:

Factors relevant to the determination of disability onset

include the individual’s allegation, the work history, and

the medical evidence. These factors are often evaluated

together to arrive at the onset date. However, the

individual’s allegation or the date of work stoppage is

significant in determining onset only if it is consistent

with the severity of the condition(s) shown by the

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medical evidence... Particularly in the case of slowly

progressive impairments, it is not necessary for an

impairment to have reached listing severity (i.e. be

decided on medical grounds alone) before onset can be

established.... In some cases, it may be possible, based on

the medical evidence, to reasonably infer that the onset of

a disabling impairment occurred sometime prior to the

date of the first recorded medical examination, e.g. the

date the claimant stopped working.

SSR 83-20, *1. According to SSR 83-20, “[t]he starting point in determining the

date of onset of disability is the individual’s statement as to when disability

began.” Id. at *2. However, the ruling states that “the medical evidence serves as

the primary element in the onset determination.” Id. at 2. Plaintiff initially alleged

that his onset date was July 2002. However, this date could not be used because of

the preclusive effect of the earlier decision denying benefits through January, 2006. 

See Gaskin v. Comm’r of Soc. Sec., 2008 WL 2229848 (6th Cir. 2008). Plaintiff

does not point to any medical evidence in the record suggesting that an earlier

onset date is appropriate. Rather, plaintiff merely relies on the statutory language

allowing retroactive benefits to be awarded for the 12 month period before the

application. Plaintiff misses the point that it is still his burden to show that he was

disabled during that 12 month period prior to his application and he has not

suggested that any such evidence exists in the record. Here, the ALJ relied both on

the medical evidence in the record and plaintiff’s assertion through counsel that the

amended onset date was February 15, 2007. This conclusion is supported by the

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substantial evidence in the record.

While plaintiff alleges that the amended onset date was due to ineffective

assistance of counsel, other than the bald statement that counsel was ineffective,

plaintiff offers no support this claim. Simply, plaintiff does not indicate that new

evidence or other good cause exists for the Court to remand this matter to the ALJ

for further review or investigation.

III. RECOMMENDATION

For the reasons set forth above, the undersigned RECOMMENDS that

plaintiff’s motion for summary judgment be DENIED, that defendant’s motion for

summary judgment be GRANTED, and that the findings of the Commissioner be

AFFIRMED.

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to file any objections within 14 days of service,

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule

72.1(d). Failure to file specific objections constitutes a waiver of any further right

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health and

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some

issues but fail to raise others with specificity will not preserve all the objections a

party might have to this Report and Recommendation. Willis v. Sec’y of Health

and Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of

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Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to Local Rule

72.1(d)(2), any objections must be served on this Magistrate Judge.

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,”

etc. Any objection must recite precisely the provision of this Report and

Recommendation to which it pertains. Not later than 14 days after service of an

objection, the opposing party may file a concise response proportionate to the

objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Local Rule 72.1(d). 

The response must specifically address each issue raised in the objections, in the

same order, and labeled as “Response to Objection No. 1,” “Response to Objection

No. 2,” etc. If the Court determines that any objections are without merit, it may

rule without awaiting the response.

s/Michael Hluchaniuk 

Date: February 25, 2011 Michael Hluchaniuk

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on February 25, 2011, I electronically filed the foregoing paper

with the Clerk of the Court using the ECF system, which will send electronic

notification to the following: Vanessa Miree Mays, AUSA, Dionne E. WebsterCox, and the Commissioner of Social Security.

s/Darlene Chubb 

Judicial Assistant

(810) 341-7850

darlene_chubb@mied.uscourts.gov

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