Burdette v. Commissioner of Social Security

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL BURDETTE,
Plaintiff,
v. 	Case No. 1:24-cv-1278
Hon. Hala Y. Jarbou
COMMISSIONER OF SOCIAL
SECURITY,
Defendant,
__________________________________/
REPORT AND RECOMMENDATION
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review
of a final decision of the Commissioner of Social Security (Commissioner) which denied his claim
for disability insurance benefits (DIB).
By way of background, on June 9, 2015, an administrative law judge (ALJ) issued
an unfavorable decision on plaintiff’s previous claim for benefits. PageID.27, 87-101. Plaintiff
filed the present application for DIB on September 29, 2021, alleging a disability onset date of
October 7, 2019. 	PageID.27. 	Plaintiff has an associate’s degree in general education and past
relevant work as a parts clerk and tool crib attendant. PageID.35, 50. Plaintiff listed his disabling
conditions as post-traumatic stress disorder (PTSD), anxiety, depression, degenerative disc disease
(DDD) L4-5, chronic obstructive pulmonary disease (COPD), runner’s knee, neuropathy, tinnitus,
and hand tremors. PageID.268. In the present case, an ALJ reviewed plaintiff’s claim de novo
and entered a written decision denying benefits on October 23, 2023. 	PageID.27-37. 	This
decision, which was later approved by the Appeals Council, has become the final decision of the
Commissioner and is now before the Court for review.
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I. 	LEGAL STANDARD
“The federal courts review the Commissioner’s factual findings for substantial
evidence and give fresh review to its legal interpretations.” 	Taskila v. Commissioner of Social
Security, 819 F.3d 902, 903 (6th Cir. 2016). This Court’s review of the Commissioner’s decision
is typically focused on determining whether the Commissioner’s findings are supported by
substantial evidence. 	42 U.S.C. § 405(g); McKnight v. Sullivan, 927 F.2d 241 (6th Cir. 1990).
“[T]he threshold for such evidentiary sufficiency is not high.” Biestek v. Berryhill, 587 U.S. 97,
103 (2019). “Substantial evidence, this Court has said, is more than a mere scintilla. It means —
and means only — such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. (internal quotation marks and citations omitted).
A determination of substantiality of the evidence must be based upon the record
taken as a whole. Young v. Secretary of Health and Human Services, 925 F.2d 146 (6th Cir. 1990).
The scope of this review is limited to an examination of the record only. 	This Court does not
review the evidence de novo, make credibility determinations, or weigh the evidence. Brainard v.
Secretary of Health & Human Services, 889 F.2d 679, 681 (6th Cir. 1989). The fact that the record
also contains evidence which would have supported a different conclusion does not undermine the
Commissioner’s decision so long as there is substantial support for that decision in the record.
Willbanks v. Secretary of Health & Human Services, 847 F.2d 301, 303 (6th Cir. 1988). “If the
[Commissioner’s] decision is supported by substantial evidence, it must be affirmed even if the
reviewing court would decide the matter differently, and even if substantial evidence also supports
the opposite conclusion.” Cutlip v. Secretary of Health and Human Services, 25 F.3d 284, 286
(6th Cir. 1994).
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A claimant must prove that he suffers from a disability in order to be entitled to
benefits. 	A disability is established by showing that the claimant cannot engage in 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 twelve months. See 20 C.F.R. §404.1505; Abbott v. Sullivan, 905 F.2d 918, 923
(6th Cir. 1990). 	In applying the above standard, the Commissioner has developed a five-step
analysis:
The Social Security Act requires the [Commissioner] to follow a “five-step
sequential process” for claims of disability. First, plaintiff must demonstrate that
she is not currently engaged in “substantial gainful activity” at the time she seeks
disability benefits. 	Second, plaintiff must show that she suffers from a “severe
impairment” in order to warrant a finding of disability. A “severe impairment” is
one which “significantly limits . . . 	physical or mental ability to do basic work
activities.” Third, if plaintiff is not performing substantial gainful activity, has a
severe impairment that is expected to last for at least twelve months, and the
impairment meets a listed impairment, plaintiff is presumed to be disabled
regardless of age, education or work experience. 	Fourth, if the plaintiff's
impairment does not prevent her from doing her past relevant work, plaintiff is not
disabled. For the fifth and final step, even if the plaintiff’s impairment does prevent
her from doing her past relevant work, if other work exists in the national economy
that plaintiff can perform, plaintiff is not disabled.
Heston v. Commissioner of Social Security, 245 F.3d 528, 534 (6th Cir. 2001) (citations omitted).
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 through step four. 	Jones v. Commissioner of Social Security, 336 F.3d 469, 474 (6th Cir.
2003). However, at step five of the inquiry, “the burden shifts to the Commissioner 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. If it is determined that a claimant
is or is not disabled at any point in the evaluation process, further review is not necessary. Mullis
v. Bowen, 861 F.2d 991, 993 (6th Cir. 1988).
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II. 	ALJ’s DECISION
Plaintiff’s claim failed at the fifth step of the evaluation. At the first step, the ALJ
found that plaintiff last met the insured status requirements of the Social Security Act on December
31, 2020. 	PageID.41. 	The ALJ also found that plaintiff has not engaged in substantial gainful
activity from the alleged onset date of October 7, 2019 through his date last insured of December
31, 2020. PageID.30. At the second step, the ALJ found that through the date last insured, plaintiff
had severe impairments of lumbar degenerative disc disease; obesity; PTSD; and chronic
bereavement. Id. At the third step, the ALJ found that through the date last insured, plaintiff did
not have an impairment or combination of impairments that met or equaled the requirements of
the Listing of Impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1. Id.
The ALJ decided at the fourth step that:
After careful consideration of the entire record, I find that, through the date
last insured, the claimant had the residual functional capacity to perform light work
as defined in 20 CFR 404.1567(b) except he can lift and/or carry up to 20 pounds
occasionally and up to 10 pounds frequently. He can stand and/or walk about six
hours and can sit about six hours in an eight-hour workday. He can occasionally
operate foot controls. He can occasionally climb ramps and stairs, and should never
climb ladders, ropes, or scaffolds. He can frequently balance, and can occasionally
stoop, kneel, crouch, and crawl. He can tolerate just occasional exposure to
vibration, and to atmospheric conditions such as dusts, noxious odors, fumes, gases,
and poor ventilation. He can tolerate a moderate noise intensity at most. He should
not work at unprotected heights and should not operate hazardous moving
machinery. He can understand, remember, and concentrate sufficiently to carry out
simple, routine tasks on a sustained basis and to make simple work-related
decisions. He can perform work that requires up to frequent interactions with
supervisors and occasional interactions with co-workers, but should not perform
work that requires interactions with the public. He can manage the demands
involved in simple, routine work that involves no more than occasional work-
related changes, with limitations in social interactions as already stated.
PageID.31-32. 	The ALJ also found that through the date last insured, plaintiff was unable to
perform any past relevant work. PageID.35.
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At the fifth step, the ALJ determined that, through the date last insured, plaintiff
could perform a significant number of light, unskilled jobs. PageID.35-36. Based on the testimony
of vocational expert (VE), the ALJ found that plaintiff could perform the requirements of
occupations in the national economy such as cleaner (194,000 jobs), collator operator (33,000
jobs), and router (25,000 jobs). PageID.36. Accordingly, the ALJ determined that plaintiff was
not under a disability, as defined in the Social Security Act, at any time from October 7, 2019 (the
alleged onset date) through December 31, 2020 (the date last insured). PageID.36-37.
III. 	DISCUSSION
Contrary to the Court’s directive, defendant filed a “Motion for summary
Judgment” (ECF No. 10) and did not include the required statement of error.1 Based on plaintiff’s
filing, the Court construes the alleged error in this case as follows:
Defendant failed to follow the correct legal standards which
prohibit the ALJ from “cherry-picking” evidence to make it
appear plaintiff is not disabled which the ALJ did in this case.
Plaintiff contends that the ALJ “cherry-picked” the evidence. Plaintiff’s argument
summarizes parts of the administrative record in an apparent attempt to demonstrate that the ALJ’s
review of the record was incomplete. 	See Plaintiff’s Brief (ECF No. 10, PageID.834-844).
Plaintiff cites no authority to support his argument other than a passing reference in Gentry v.
Commissioner of Social Security, 741 F.3d 708 (6th Cir. 2014) referring to a case with alleged
1 The Notice Regarding Consent and Directing Filing of Briefs (ECF No. 4) states in pertinent part:
Plaintiff's initial brief . . . must contain a Statement of Errors, setting forth in a separately numbered section, each
specific error of fact or law upon which Plaintiff seeks reversal or remand. Failure to identify an issue in the Statement
of Errors constitutes a waiver of that issue. Motions for summary judgment are inappropriate in Social Security cases
and shall not be filed. [emphasis added]
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“cherry-picking” of the evidence and two citations regarding basic concepts of administrative
review.2 Id. at PageID.834.
It is unnecessary for the ALJ to address every piece of medical evidence. 	See
Heston, 245 F.3d at 534-35. An argument that the ALJ mischaracterized or “cherry-picked” the
record is frequently made and seldom successful, because “the same process can be described more
neutrally as weighing the evidence.” White v. Commissioner, 572 F.3d 272, 284 (6th Cir. 2009).
See Daniels v. Commissioner of Social Security, 152 Fed. Appx. 485, 489 (6th Cir. 2005) (“an ALJ
is not required to discuss all the evidence submitted, and an ALJ's failure to cite specific evidence
does not indicate that it was not considered”).
As an initial matter, plaintiff apparently wants this Court to perform a de novo
review of the record and “award him benefits from his disability onset date forward”. This Court
does not perform a de novo review the evidence. See Brainard, 889 F.2d at 681. As discussed, if
the Commissioner’s decision is supported by substantial evidence, it must be affirmed even if
substantial evidence also supports the opposite conclusion. See Cutlip, 25 F.3d at 286; Willbanks,
847 F.2d at 303.
Here, the relevant time period for plaintiff’s DIB claim was a little more than one
year, from the alleged disability onset date of October 7, 2019, through December 31, 2020. The
ALJ reviewed about 450 pages of medical records from before, during and after the relevant time
2 Plaintiff cites Gentry for the proposition “(reversing where the ALJ “cherry-picked select portions of the record”
rather than doing a proper analysis)”. Plaintiff’s Brief (ECF No. 10, PageID.834). Gentry was a lengthy decision
which referred to the concept of “checking picking” in passing. See Gentry, 741 F.3d at 723-724 stating:
Moreover, although the ALJ stated that she considered all the medical evidence marked as exhibits,
her reasoning shows that she discounted the severity of Gentry's conditions —based on periodic
improvements and cessation of treatment — by failing to address certain portions of the record,
including the evidence of a continuing illness that was not resolved despite use of increasingly
serious and dangerous medications. See Minor v. Comm'r of Soc. Sec., 513 Fed. Appx. 417, 435
(6th Cir.2013) (reversing where the ALJ “cherry-picked select portions of the record” rather than
doing a proper analysis)[.]”
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(January 2018 through July 2023). 	See ECF Nos. 3-7 and 3-8, PageID.353-806 (Exhs. B1F
through B5F); PageID.31.
In performing this review, the ALJ noted that plaintiff “presented few medical
records pertaining to the appropriate timeframe.” PageID.33. The ALJ recognized that plaintiff
has a history of degenerative disc disease of the lumbar spine and that an MRI of his spine in
September 2019 showed a new right central disc protrusion with super imposed annular fissure at
L5-S1 producing minimal central spinal canal narrowing, a stable slight disc bulge at L4-5 (Ex.
B1F/18-19). PageID.33. The ALJ noted that,
In October 2019, the claimant attended a comprehensive evaluation for his service
related injuries, including back pain; the claimant reported that he has a flare of
pain when he remains on the toilet too long and occurs once or twice per week. On
examination, he had an abnormal range of motion, guarding and muscle spasm,
abnormal gait, decreased and sensation in the left thigh and feet, suggestive of
L4/L5/S1/S2/S3 nerve root involvement. (Ex. B1F/126-154) Examinations were
remarkable for tenderness of the paraspinal muscles to the lumbar spine on
palpation and passive range of motion with flexion and rotations. (Ex. B1F)
Id.
The claimant treated with pain management specialists beginning in March 2020.
Id. 	Treatment notes were remarkable for spinous process tenderness and injection therapy “with
significant relief of symptoms for several weeks. (Ex. B2F)”. Id. The record reflects that plaintiff
engaged in various activities during the relevant time period. In November 2020, plaintiff
“reported soreness after raking leaves for several hours (Ex. B1F)” and in December 2020 plaintiff
“reported that he had been helping his mother-in-law lay flooring over the weekend for a few hours
(Ex. B1F/89)”. Id. The ALJ considered plaintiff’s obesity and limited him “to light exertion work
with reduced postural activities and limited exposure to environmental conditions or hazards, in
part because of obesity.” 	Id. 	The ALJ also considered plaintiff’s mental impairments and
acknowledged that these impairments “warrant the limitations as described in the residual
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functional capacity assessment adopted herein.” Id. The ALJ noted plaintiff’s history of PTSD
and found that “[p]sychiatry visits remained remarkable for feelings of being overwhelmed,
irritability, abnormal moods, restrictive affect, and difficulty tolerating others (Ex. B1F).”
PageID.34.
The ALJ reviewed opinions of plaintiff’s physical limitations offered by Trinh
Nguyen, D.O. (Ex. B2A) and Larry Jackson, M.D. (Ex. B4A). 	Id. 	The ALJ found that these
opinions “suggest a limitation to light work with postural limitations and environmental
limitations, with varying degrees of limitations expressed regarding postural activities and
environmental factors.” 	Id. 	The ALJ concluded that, [o]verall, a limitation to light work with
postural and environmental limitations is persuasive. Id.
In addition, the ALJ considered opinions of plaintiff’s mental limitations offered
by Karen Hanson, PhD (Ex. B2A) and George Starrett, EdD (Ex. B4A). 	Id. Drs. Hanson and
Starrett
opined that the claimant would have mild limitations in his ability to understand,
remember, or apply information and in his ability to adapt or manage oneself with
moderate limitations in interacting with others and concentration, persistence, or
maintaining pace and that the claimant could complete simple, routine, and
repetitive work, make simple workplace decisions, and should have little or no
contact with the public an with a small number of co-workers.
Id. The ALJ found these opinions as “consistent with and supported by the medical and other
evidence of record, and so are persuasive.” Id.
Most 	recently, 	Natalie 	Rea-Michalak, 	PsyD 	(Ex. 	B7A) 	(May 	12, 	2022)
(PageID.144) and Dr. Starrett (Ex. B9A) (August 15, 2022) (PageID.153) “found that there was
insufficient evidence as of the claimant’s date last insured [December 31, 2020] to make any
specific findings.” 	PageID.34-255. 	Accordingly, the ALJ concluded that, “I need not evaluate
their assessments.” PageID.35.
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Based on this record, the ALJ’s opinion is supported by substantial evidence.
Contrary to plaintiff's contention, the ALJ provided an adequate evaluation of the evidence and
rationale for her decision. Accordingly, plaintiff’s claim of error should be denied.
IV. 	RECOMMENDATION
For the reasons discussed, I respectfully recommend that the Commissioner’s
decision be AFFIRMED.
Dated: February 17, 2026 	/s/ Ray Kent
Ray Kent
United States Magistrate Judge
ANY OBJECTIONS to this Report and Recommendation must be served and filed with the Clerk
of the Court within fourteen (14) days after service of the report. All objections and responses to
objections are governed by W.D. Mich. LCivR 72.3(b). Failure to serve and file written objections
within the specified time waives the right to appeal the District Court’s order. Thomas v. Arn, 474
U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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