Childs v. Commissioner of Social Security
ORDER Overruling 14 Objections, Adopting the 13 Report and Recommendation, Granting In Part and Denying in Part Plaintiff's 8 Motion for Summary Judgment, Denying Defendant's 11 Motion for Summary Judgment, and Remanding to ALJ. Signed by District Judge Thomas L. Ludington. (SBur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
BARBARA R. CHILDS,
Case No. 15-cv-12250
Honorable Thomas L. Ludington
Magistrate Judge David R. Grand
COMMISSIONER OF SOCIAL SECURITY,
ORDER OVERRULING OBJECTIONS, ADOPTING THE REPORT AND
RECOMMENDATION, GRANTING IN PART AND DENYING IN PART PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT, DENYING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT, AND REMANDING TO ALJ
On June 22, 2015 Plaintiff Barbara R. Child filed an appeal of the ALJ’s denial of her
claim for disability insurance benefits (“DIB”). After Plaintiff and Defendant Commissioner of
Social Security filed motions for summary judgment, on August 5, 2016 Magistrate Judge David
R. Grand authored a Report and Recommendation finding that the ALJ’s decision was not based
on substantial evidence. See ECF No. 13. The magistrate therefore recommends granting in part
Plaintiff’s motion for summary judgment, denying Defendant’s motion for summary judgment,
and remanding the case to the Administrate Law Judge (“ALJ”). Id. Defendant Commissioner
timely filed objections. ECF No. 14.
Pursuant to a de novo review of the record, Defendant Commissioner’s objections will be
overruled and the report and recommendation will be adopted. Plaintiff’s motion for summary
judgment will be granted in part and denied in part, Defendant’s motion for summary judgment
will be denied, and the case will be remanded to the ALJ.
Plaintiff Childs, born in 1966, is 5’1” tall and weighs 155 pounds. See Tr. 288. She
graduated from high school and has obtained a medical administrative assistant certificate. Tr.
289. She has previously performed work as a receptionist, secretary, and delivery driver. Tr. 242,
289. She last worked on February 25, 2008 when she was fired for causing a car accident. Tr.
288. She currently resides in a house with her husband. Tr. 268.
Plaintiff Childs alleges disability as a result of numerous medical conditions including
diabetes, neuropathy, gastroparesis, retinopathy, carpal tunnel syndrome, shortness of breath,
fibromyalgia, frozen shoulder syndrome, degenerative disc disease, and thyroid cancer. As a
result of these conditions, Childs experiences dizziness, fatigue, pain, numbness in her
extremities, forgetfulness, vomiting, and diarrhea. She also suffers from depression, anxiety and
panic attacks. Childs testified that she spends most of her days watching television and sleeping,
and that she struggles with personal care. Tr. 64.
On November 16, 2010 Plaintiff Childs filed an application for disability insurance
benefits. See Tr. 221-22, ECF No. 6. After her claim was initially denied on October 19, 2011,
Childs timely requested an administrative hearing, which was held on July 16, 2012. Tr. 38-57.
On August 6, 2012 the ALJ issued a written decision finding Childs not disabled under the Act.
Tr. 97-106. On September 13, 2013 the Appeals Council issued an Order remanding the case to
the ALJ for further proceedings, including further evaluation of Childs’ coronary artery disease
and history of thyroid cancer. Tr. 113-15.
A second administrative hearing was therefore held on January 13, 2014 before the same
ALJ. Tr. 58-76. The ALJ again denied Childs’ application for DIB on February 27, 2014, again
finding that she is not disabled under the Act. Tr. 16-30. After the Appeals Council denied
review, Childs timely appealed to this Court on June 22, 2015 alleging that the Commissioner’s
determination was not based on substantial evidence. ECF No. 1.
Plaintiff Childs filed a motion for summary judgment on September 29, 2015, alleging
that the Commissioner’s RFC finding was not supported by substantial evidence due to her
myriad of maladies. ECF No. 8. Defendant Commissioner then filed a motion for summary
judgment on December 28, 2015. ECF No. 11. On August 5, 2016, Magistrate Judge David R.
Grand issued a report and recommendation. ECF No. 13. Reviewing the Commissioner’s
decision under a “substantial evidence” standard, the magistrate judge determined that the ALJ
erred in according significant weight to a “stale” opinion of a non-treating source, Dr. Holmes.
Id. For this reason, the magistrate judge determined that the ALJ’s residual functional capacity
(“RFC”) finding was not supported by substantial evidence. The magistrate judge therefore
recommended that Child’s motion for summary judgment be granted to the extent it seeks
remand and denied to the extent it seeks an award of benefits, that Defendant Commissioner’s
motion for summary judgment be denied, and that the matter be remanded to the ALJ.
When reviewing a case under 42 U.S.C. § 405(g), the Court must affirm the
Commissioner’s conclusions “absent a determination that the Commissioner has failed to apply
the correct legal standards or has made findings of fact unsupported by substantial evidence in
the record.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997) (citations
omitted). Substantial evidence is “such evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (citation omitted).
Pursuant to Federal Rule of Civil Procedure 72, a party may object to and seek review of
a Magistrate Judge’s report and recommendation. See Fed. R. Civ. P. 72(b)(2). Objections must
be stated with specificity. Thomas v. Arn, 474 U.S. 140, 151 (1985) (citation omitted). If
objections are made, “[t]he district judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). De novo review
requires at least a review of the evidence before the Magistrate Judge; the Court may not act
solely on the basis of a Magistrate Judge’s report and recommendation. See Hill v. Duriron Co.,
656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the evidence, the Court is free to accept,
reject, or modify the findings or recommendations of the Magistrate Judge. See Lardie v. Birkett,
221 F. Supp. 2d 806, 807 (E.D. Mich. 2002).
Only those objections that are specific are entitled to a de novo review under the statute.
Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). “The parties have the duty to pinpoint those
portions of the magistrate’s report that the district court must specially consider.” Id. (internal
quotation marks and citation omitted). A general objection, or one that merely restates the
arguments previously presented, does not sufficiently identify alleged errors on the part of the
magistrate judge. See VanDiver v. Martin, 304 F.Supp.2d 934, 937 (E.D.Mich. 2004). An
“objection” that does nothing more than disagree with a magistrate judge’s determination,
“without explaining the source of the error,” is not considered a valid objection. Howard v. Sec’y
of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Without specific objections,
“[t]he functions of the district court are effectively duplicated as both the magistrate and the
district court perform identical tasks. This duplication of time and effort wastes judicial resources
rather than saving them, and runs contrary to the purposes of the Magistrate’s Act.” Id.
Defendant Commissioner now raises two objections to the report and recommendation.
In her first objection the Commissioner argues that the magistrate erred in emphasizing
that Plaintiff Childs was diagnosed with various conditions, arguing that the mere diagnosis of a
condition says nothing about the severity of that condition. See ECF No. 14 pp. 1-2. This
argument is without merit, as the recommendation to remand was not based on mere diagnoses,
but based on the fact that the ALJ relied heavily on the 2011 opinion of Dr. Holmes, which, by
the time of the 2014 hearing, could not address Childs’ post-2011 medical issues, and was
therefore stale in light of the record evidence. The remand recommendation is further based on
the fact that the ALJ minimized or mischaracterized the medical evidence that post-dated Dr.
Holmes’ opinion. See Rep. & Rec. 13-14. It is therefore the ALJ’s selective reading of the
record that is problematic. See Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984),
(“Substantiality of the evidence must be based upon the record taken as a whole.”). Defendant
Commissioner’s first objection will be overruled.
In her second objection, Defendant Commissioner argues that, even if the ALJ selectively
read the record, remand is not appropriate because Plaintiff has not sustained her burden under
the substantial evidence standard. Specifically, Defendant argues that Plaintiff Childs has not set
forth sufficient evidence that she has any work limitation beyond those set forth in the RFC
finding. This objection essentially states broad disagreement with the magistrate judge’s report,
and is without merit. See Howard, 932 F.2d at 509. As catalogued by the magistrate in his
report, there are numerous instances in which Plaintiff experienced chest pain, difficulty
breathing, difficulty moving, and decreased ranges of motion, and numerous complications
following the thyroid surgery she underwent for malignant thyroid cancer after the issuance of
Dr. Holmes’s 2011 report. See Rep. & Rec. 11-13. Because the ALJ did not properly consider all
record evidence – particularly because the ALJ did not properly consider the most up-to-date
medical evidence – the ALJ’s RFC finding was not based on substantial record evidence, and
remand is appropriate.
Accordingly, it ORDERED that Defendant Commissioner’s objections, ECF No. 14, are
It is further ORDERED that the magistrate judge’s report and recommendation, ECF No.
13, is ADOPTED.
It is further ORDERED that Plaintiff Barbara R. Childs’s motion for summary judgment,
ECF No. 8, is GRANTED IN PART AND DENIED IN PART.
It is further ORDERED that Defendant Commissioner’s motion for summary judgment,
ECF No. 11, is DENIED.
It is further ORDERED that this matter is REMANDED to the Social Security
Administration for further proceedings consistent with this Memorandum and Order.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: September 22, 2016
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on September 22, 2016.
s/Michael A. Sian
MICHAEL A. SIAN
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