Weaver v. Social Security, Commissioner of
ORDER Overruling Plaintiff's 13 Objections, Adopting the 12 Report and Recommendation, Denying Plaintiff's 10 Motion for Summary Judgment, Granting Defendant's 11 Motion for Summary Judgment, and Affirming the Decision of the Commissioner. Signed by District Judge Thomas L. Ludington. (KWin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
ELIZABETH DIANE WEAVER,
Case No. 16-cv-10942
Honorable Thomas L. Ludington
Magistrate Judge Patricia T. Morris
COMMISSIONER OF SOCIAL SECURITY,
ORDER OVERRULING PLAINTIFF’S OBJECTIONS, ADOPTING THE REPORT
AND RECOMMENDATION, DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT, GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT,
AND AFFIRMING THE DECISION OF THE COMMISSIONER
On January 20, 2017 Magistrate Judge Patricia T. Morris authored a Report and
Recommendation addressing Plaintiff Elizabeth Diane Weaver’s motion for summary judgment
and Defendant commissioner of social security’s motion for summary judgment. ECF Nos. 10,
11. In the report and recommendation, Judge Morris recommends denying Plaintiff’s motion for
summary judgment and granting Defendant’s motion for summary judgment. ECF No. 12. On
February 2, 2017 Plaintiff timely filed objections. ECF No. 13.
Pursuant to a de novo review of the record, Plaintiff Weaver’s objections will be
overruled and the report and recommendation will be adopted. Plaintiff’s motion for summary
judgment will be denied, Defendant’s motion for summary judgment will be granted, and
Plaintiff’s claims will be dismissed with prejudice.
Because the magistrate judge’s report did not include a general summary of the facts, a
summary is provided here. Plaintiff Elizabeth Weaver was born on April 5, 1970, and resides in
Flint, Michigan. See Pg. ID 86. She has a driver’s license, but can no longer drive due to
medication. Id. Plaintiff graduated from high school, and is a certified medical assistant in
phlebotomy. Id. Plaintiff previously worked as a cashier from February of 1985 to November of
2008. See Pg. ID 116. She began working as a medical assistant in December of 2003, but was
terminated in March of 2011. Id. She was unable to obtain substitute employment following her
termination, and alleges that she became disabled on July 21, 2011. See Pg. ID. 87, 190, 197.
Plaintiff suffers from a variety of ailments. She regularly treated with Doctor Gary
Roome, M.D. at the Burton Medical Clinic in Saginaw, Michigan. See Pg. ID. 317. Plaintiff also
repeatedly visited the Taylor Psychological Clinic for complaints of depression and anxiety. See
Pg. ID 304-14. From 2012 to 2013, Plaintiff also regularly visited the Genesys Regional
Medical Clinic in Burton, Michigan, for issues ranging from hypothyroidism, depression,
asthma, bug bites, and vaginal discharge. See Pg. ID 291-303.
On May 5, 2012 Plaintiff visited Dr. Roome at the Burton Clinic after allegedly dropping
a chair on her right shoulder. Pg ID. 322. Plaintiff reported a sharp, intermittent pain in her right
shoulder. Id. An examination of her right elbow conducted at the McLaren Regional Medical
Center on May 14, 2012 identified no acute fracture, dislocation, or joint effusion. See Pg. ID
325. Two days later, on May 16, 2012 Plaintiff visited the Burton Medical Clinic and reported a
variety of issues including ear issues and chronic soreness in her right arm and chest. Pg. ID.
327. Plaintiff also reported that she had injured her right side on May 13, 2012 when she was
“horsing around’ with a friend. Id. Plaintiff therefore requested refills of medication and an
increase to her Xanax prescription. Id. An inspection of her shoulder and elbow revealed that
Plaintiff was not in acute distress. Id.
Plaintiff returned to the Burton clinic on May 31, 2012 and reported that she was no
longer in any pain. See Pg. ID 331. While Plaintiff reported a cough and sore throat, Dr.
Hamaker noted that Plaintiff used marijuana, and suggested that she cease smoking. Pg. ID 33133. In a visit on July 13, 2012 Plaintiff reported that she had chronic pain in her feet, but left
without being seen by Dr. Roome. See Pg. ID 337-38.
During an appointment at the Taylor Clinic on November 6, 2012, Plaintiff reported a
number of traumatic events in her past, and noted that she did not like people. See Pg. ID 309.
The treating therapist noted that Plaintiff spent her free time watching television, using the
computer, and completing cross word puzzles. See Pg. ID 310. He found her to be alert and
cooperative, with appropriate appearance and a normal stream of thought. See Pg. ID 311. He
noted that Plaintiff had an anxious reaction and reported some auditory hallucinations. Id.
Plaintiff was diagnosed with general anxiety. Pg. ID 312. On December 2, 2012 Plaintiff visited
the Genesys Clinic and saw Doctor Madonna Hanna, M.D, regarding her depression. Doctor
Hanna noted that Plaintiff had normal orientation to person, place and time, but discussed a
variety of problems, jumping from one issue to another. Pg. ID 292. Doctor Hamma directed
Plaintiff to continue taking her medication and to take vitamin D, and directed her to follow up
with a psychologist. Id.
On March 14, 2013 Plaintiff visited the Genesys Regional Medical Clinic for her asthma.
See Pg. ID 300. Dr. Hamma found that Plaintiff’s asthma was triggered by cold weather and
upper respiratory tract infection. Id. She noted Plaintiff’s symptoms of stable coughing and
shortness of breath during exertion, but noted that Plaintiff did not report any chest tightness. Id.
A physical examination of Plaintiff did not reveal any signs of respiratory distress, wheezing, or
labored breathing. See Pg. ID 301. Overall, Dr. Hamma assed Plaintiff as having mild persistent
asthma, and found that Plaintiff’s asthma was well controlled by her medication. See Pg. ID 27273.
On April 17, 2013 Plaintiff underwent a mental status examination at the Taylor Clinic,
which revealed that Plaintiff was attired appropriately with unremarkable expression and posture.
See Pg. ID 307. Plaintiff was found to be alert, with normal memory, orientation, thought
progression, language, and perception. Id. She was found to have good insight and judgment.
Id. On April 26, 2013 Plaintiff visited Dr. Roome at the Burton Clinic complaining of fatigue,
but denying insomnia, impaired concentration, or suicidal ideation. See Pg. ID 341. She was
reported to be alert and cooperative, with a normal mood and attention span, and she denied
experiencing any chronic pain. See Pg. ID 340-42.
For nodular thyroid issues, Plaintiff made bi-annual visits to Endocrinologist Hemant T.
Thawani, M.D. Dr. Thawani’s reports indicate that thyroid biopsies returned benign and that
Plaintiff did not have positive thyroid autoantibodies. See Pg. ID 284-88. She was prescribed
medication to alleviate her symptoms. Id.
Plaintiff was repeatedly encouraged to remain
adherent to her treatment regime, pg. ID 287-88, and Plaintiff acknowledged to various providers
that she did not take her medication regularly. See, e.g., Pg. ID 291.
Plaintiff filed an application for Social Security Disability (“SSD”) and Supplemental
Security Income (“SSI”) on March 11, 2013. Plaintiff alleges severe impairments arising out of
major depressive disorder, generalized anxiety disorder, bipolar disorder, hyperthyroidism,
chronic asthma, bilateral foot pain, impairments of the neck, back, shoulder and arm, decreased
grip strength, decreased range of motion, and a sleep disorder. See Pg. ID 274-75.
After Plaintiff filed her application, on July 8, 2013 Psychologist Mathew P. Dickson
prepared a psychological report after visiting with Plaintiff. Plaintiff reported that while she did
not have contact with friends, she did have contact with family members. Pg. ID 348. She
reported that she liked to stay at home, but was capable of basic household chores, such as basic
cooking, self-care, hygiene, and occasional visits to the store. Id. Doctor Dickson noted that
Plaintiff was well groomed, neatly dressed, and with spontaneous and organized stream of
thought. Id. While she reported that she sometimes hallucinated while on medication, Doctor
Dickson did not find these descriptions conclusive of a psychotic disorder. Pg. ID 349. Doctor
Dickson concluded that Plaintiff’s “mental abilities to understand, attend to, remember, and carry
out instructions related to work-related behaviors are mildly impaired.” See Pg. ID 350. He
further found that her abilities “to respond appropriately to co-workers and supervision and to
adapt to change and stress in the workplace are moderately impaired.” Id. He determined that
her GAF score was 55.
On July 17, 2013 Doctor Michael Geoghegan, D.O., conducted a consultative physical
examination of Plaintiff. Pg. ID 353. Dr. Geoghegan noted that, while Plaintiff alleged that she
had been asthmatic for around a decade, she had not required any emergency room visits or
hospitalizations in the past 12 months. He reported that she suffered from a chronic dry cough,
that environmental allergens exacerbated her breathing problems, and that her symptoms
worsened during summer, but that she managed her symptoms with Ventolin. In conducting his
physical examination, Dr. Geoghegan determined that Plaintiff’s lungs were clear, and that her
claims of shortness of breath were not substantiated by the physical examination. Id.
concluded that she should continue to use her medication and follow up with her primary doctor
on a regular basis. See Pg. ID 357.
Dr. Geoghegan further noted that Plaintiff suffered from hypothyroidism, for which she
took Synthroid 75 mg daily. See Pg. ID 353. He reported that thyroid biopsies returned benign,
and concluded that she should continue to follow up with her doctor and have semiannual
thyroid function tests. See Pg. ID 357.
With regard to Plaintiff’s claims of physical pain, Dr. Geoghegan determined that
Plaintiff’s gate was normal, her range of motion for all joints checked in full, her straight leg
raising test was negative, her grip strength was intact, and there was full fist bilaterally. Plaintiff
was able to “pick up a coin, button a button, and open a door with both hands. The patient had no
difficulty getting on and off the examination table, no difficulty heel and toe walking, no
difficulty squatting, and no difficulty hopping.” Pg. ID 354. He concluded that Plaintiff was able
“to use her upper extremities for lifting, pulling, pushing, or carrying. No restrictions were noted
with regard to her grip strength in either hand.” Id.
Plaintiff’s initial applications were denied on August 6, 2013. Along with the denial,
Plaintiff was provided with disability determination explanations that included findings by state
agency consultants Lenoard C. Balunas, Ph.D., B.D. Choi, M.D., and Nancy Sarti. After the
initial denial Plaintiff submitted a series of supplemental medical records. See Pg. ID 104.
Plaintiff’s supplemental physical treatment records mostly related to her claims of right
shoulder and arm pain. See Pg. ID 485. On July 18, 2013 Plaintiff visited the Burton Medical
Clinic and complained of level 10, sharp, constant stomach pain that had lasted for two weeks.
See Pg. ID 538. Plaintiff was prescribed Zantac. See Pg. ID 540. Plaintiff again visited the clinic
on August 3, 2013 and reported that she was not in any pain. See Pg. ID 534. On August 29,
2013 Plaintiff visited the clinic and complained of sharp, constant, Level 10 pain all over her
body. See Pg. ID 530. She then informed Dr. Roone that she had anxiety, insomnia, and fatigue.
Dr. Roone prescribed her Hydroxyzine Pamoate. See Pg. ID 533. Plaintiff then visited the
emergency room on September 3, 2013 for neck pain. See Pg. ID 542. An exam revealed
prevertebral soft tissue, epiglottis, and aryepiglottic folds within normal limits, with minor
degenerative changes noted. Id. On September 5, 2013, Plaintiff visited the Burton Medical
Clinic and complained of lower back pain, but reported that she did not experience any chronic
pain. See Pg. ID 526. Dr. Roome prescribed Plaintiff Indomethacin and Tramadol. See Pg. ID
During a visit to the Urban Health and Wellness Center on October 10, 2013, Plaintiff
stated that she had experienced intermittent neck and right arm pain for around four years, and
that the symptoms were getting worse. See Pg. ID 498. The treating physician determined that
Plaintiff had impaired muscle endurance, muscle strength, posture, joint mobility, and range of
motion. See Pg. ID 500-01. He noted that these issues were associated “with connective tissue
dysfunction,” but determined that the prognosis was good. He also determined that Plaintiff had
positive spurlings, slump bilaterally, and decreased right grip strength. Plaintiff was directed to
attend physical therapy. See Pg. ID 501. By late 2013 Plaintiff reported that her neck was
improving, and that she hoped to improve her neck strength. See Pg. ID 488-92.
During visits to the Burton Clinic on September 25, 2013 and December 3, 2013 Plaintiff
reported that she did not have any pain and did not experience any chronic pain. See Pg. ID 521,
517. During a February 19, 2014 visit to Dr. Roome, Plaintiff complained of Level 10 pain in
her right neck and shoulder at the time of her check in. See Pg. ID 511. However, at the time of
her physical exam she complained of back pain and neck pain. See Pg. ID 512-13. In a May 1,
2014 visit to Dr. Roome, Plaintiff reported level 10 right foot pain during check in, but later
complained of right shoulder pain to Dr. Roome. See Pg. ID 508-09. While Dr. Roone cautioned
her that absent an acute medical problem she was required to schedule an appointment, Dr.
Roone prescribed her Prednisone. In a June 9, 2014 visit to Dr. Roome, Plaintiff reported to a
level 10 pain in her right arm. See Pg. ID 503.
Plaintiff visited OrthoMichigan on July 22, 2014 and received an x-ray of her right
shoulder. Pg. ID 637. The x-ray revealed no acute fracture[,] dislocation[,] or other osseous
abnormality. Id. Plaintiff apparently received an emergency call while waiting to be seen, and so
was not seen by a healthcare provider. Id.
Plaintiff again visited OrthoMichigan on July 24, 2014 and reported that she had
experienced a dull, chronic pain in her shoulder for eight to ten years, but that the pain had
increased over the past two years. Pg. ID 635. An exam of the shoulder by Physician’s
Assistant Wade B. Wines, under the supervision of Doctor Seann E. Wilson, M.D., revealed “no
cutaneous manifestation of disease”, “forward flexion to 170 degrees, external rotation at the
side to 80 degrees and internal rotation to above the beltline.” Plaintiff reported pain related to
an impingement test. She had full range of motion in her elbow.
A review of Plaintiff’s prior x-rays revealed some cystic degenerative change within the
greater tuberosity with some sclerosis on the under surface of the acromion. Furthermore the
“Shenton’s line of the shoulder appears to be slightly broken but the humorous is not grossly
high riding.” The X-ray also revealed minimal arthritic wear, a possible lesion, and a humerus
impingement on the supraspinatus outlet. See Pg. Id 635-36.
P.A. Wade stated that “we
recommended against the injection and recommended some physical therapy for rotator cuff
flexibility and strengthening and follow up in about four weeks for the injection i[f] she is still
Despite this plan, Plaintiff returned to receive an injection on July 30, 2014. Pg. ID 633.
Physician’s Assistant Wines documented that Plaintiff’s symptoms had previously improved
with physical therapy and a cortisone injection, but that the symptoms had returned over the last
several months. Pg. ID 633. PA Wines again assessed Plaintiff as having a right shoulder
impingement, and performed the cortisone injection. Following the injection, “[a]fter ten minutes
of observation the patient noticed that the majority of [her] pain and symptoms were relieved.”
See Pg. ID 634.
Plaintiff also submitted updated psychological records. Plaintiff apparently began treating
with professionals at Genesee Health System, later Hope Network, in June of 2013. During her
initial assessment, Licensed Social Worker Matthew Marx noted that Plaintiff presented with “an
extensive history of trauma … and struggle[ed] with symptoms of depression, anxiety, sleep
disturbance, nightmares, intrusive and obsessive thoughts and flashbacks of previous traumatic
experiences.” Pg. ID 629. He noted that Plaintiff was afraid to leave her home. Id. He found
her stream of thought to be intact and lucid, her affect blunted, her reality oriented, and no
delusional or hallucinatory ideations. Id. It was noted that Plaintiff had a good relationship with
a sister who lived in Michigan, and that she had a good relationship with her 18 year old
daughter. See Pg. ID 615.
Plaintiff attended a follow up visit on July 8, 2013. See Pg. ID 608. At that time, while
she continued to experience problems with anxiety and depression, her thoughts were coherent
and lucid, she was oriented to reality, and was not experiencing psychosis. Id. Again on July 25,
2013, Plaintiff had lucid and intact thoughts and was oriented, although she was defensive and
made minimal eye contact. See Pg. ID 605. She noted that her sister visited almost daily to help
her pay bills. Id. Plaintiff presented similar symptoms on August 12, 2013, but was upset
because her sister was moving. See Pg. ID. 601. During her appointment on September 12,
2013, Plaintiff reported feeling sad, lonely, and unsafe after her sister moved, but was still
compliant with her medication. See Pg. ID 590. On October 18, 2013 Plaintiff reported insomnia
and physical pain, but also noted that she was going on vacation to Texas with relatives. She
was described as well groomed, calm, and coherent. See Pg. ID 587. On November 25, 2013 she
reported that she was attending physical therapy, and that she was going to the water park with
her mother and sister over the Thanksgiving weekend. See Pg. ID 584.
In early January, Plaintiff fell out of compliance with her medication, and appeared
irritable, forgetful, anxious, and in pain. See Pg. ID 578-81. After attending a medication review
with Dr. Magoon, she again presented as pleasant and cooperative, and specifically informed her
therapist that “my medication is working for me.” See Pg. ID 570-75. However, by the time of
her next documented appointment, on July 23, 2014, Plaintiff presented “crying, confused,
paranoid thinking, unreasonable.” See Pg. ID 569. Plaintiff was no longer taking her medication
and refusing to go to the hospital. She was also repeatedly hallucinating “Diana,” who told
Plaintiff that she could do anything she wanted and did not have to take her medication. In the
treatment summary, the therapist specifically noted
Therapist has seen client while on medication and she is a completely different
person. She is intelligent, reasonable, and kind. However, while off medication
she is unable to reason things out, has delusions of a friend named Diana or calls
herself Diana who makes money by prostitution and has a carefree life. Therapist
was informed later (after client left) at sign in desk she stated her name was Diana
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and seemed confused when she was told Diana was not on the appointment
schedule, the name for this appointment time was [E]Lizabeth.
See Pg. ID 569. Plaintiff returned for an appointment on July 28, 2014, at which time she
reported that she was having medication difficulties, and often forgot to take the medication or
did not want to take it because it made her sleepy. See Pg. ID 568. Plaintiff was instructed to
continue taking her medication. See Pg. ID 567.
On September 30, 2014, Plaintiff submitted a medical source statements provided by Dr.
Magoon on September 26, 2014. See Pg. ID 653. In his statement, Dr. Magoon noted that
Plaintiff suffered from “major depressive affective disorder” affecting her ability to interact
appropriately with the public, supervisors, and co-workers. See Pg. ID 655. He listed her
symptoms as “insomnia, racing thoughts, hears voices, does not remember who she is –
confusing herself with another person. [P]aranoid thinking.” See Pg. ID 654. He noted that she
needed assistance with daily activities such as cooking, medications, and transportation, and
concluded that she could not manage benefits in her own best interest. See Pg. ID 655-56.
On September 22, 2014, a hearing was held before Administrative Law Judge Andrew G.
Sloss (the “ALJ”). When asked by the ALJ to describe her problems, Plaintiff testified that she
experienced right shoulder, neck and back pain. See Weaver Tr. 5, Pg. ID. 87. According to
Plaintiff, she had experienced the pain for seven to ten years, and that the pain had become worse
with time. See Weaver Tr. 5-6. She also testified that it affected her ability to lift, reach
overhead, and write. Id. at 5-6, 16. She claimed that injections to her shoulder had only made her
pain worse. Id. at 16. Plaintiff also claimed to experience continuing pain on both feet from
bunionectomy surgeries performed in June of 2010 and July of 2011. Id. at 6; see also Pg. ID
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359-40. Because of her various pains, Plaintiff testified that she struggled to crouch and crawl,
and struggled to perform housework. Id. at 8.
Plaintiff also noted thyroid issues that affected her breathing, swallowing and eating. Id.
at 15. The thyroid issues also caused her to experience constant thirst. Id. At the time of her
hearing Plaintiff noted that she had a thyroidectomy scheduled for the following week. Later
medical reports note that Plaintiff did undergo the surgery. Progress reports from her follow-up
appointments note that she was “healing well,” that her reports of fullness and stiffness were
“completely normal,” that the remaining scar tissue would “break down over time,” and that
there was “[n]o need to worry.” Pg. ID 709.
At the September 22, 2014 hearing Plaintiff also testified about her depressive disorder.
She testified that she experienced auditory hallucinations and struggled to get along with others.
Id. at 8. She often confused herself with an imaginary friend named Diana, who Plaintiff
claimed to hallucinate when angry. Id. at 12. Plaintiff testified that she was often grouchy,
experienced daily crying spells, and regularly felt sad and hopeless. Id. at 9. She testified that
she often felt fidgety and unsafe, experienced panic attacks when going out in public, and
experienced headaches around once or twice a month. Id. at 10, 15.
Plaintiff repeatedly testified that her medications made her drowsy and forgetful. Id. at 57. She testified that her medication caused her to fall asleep on and off up to three or four times
throughout the day, and that she then struggled to sleep at night for more than 30 to 45 minute
intervals. Weaver Tr. 13. Her daughter no longer allowed her to drive after an incident in which
Plaintiff fell asleep while driving. Id. at 14-15. Plaintiff further testified that she had been falling
for no reason, and had recently sprained her knee as a result. Id. at 7. Subsequent to the hearing
Plaintiff saw Doctor Gary Roome regarding the knee injury, who indicated that there was a
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possibility that Plaintiff had torn a meniscus or significant cartilage as a result of the fall. Pg. ID
Whether as a result of her depression or medication, Plaintiff testified that she was unable
to cook because she was forgetful and regularly left the stove on. Id. at 8. Her daughter therefore
had to assist her in performing tasks that required use of electronics. Id. However, Plaintiff
testified that she was able to use the microwave and prepare simple meals for herself. Id. at 14.
Plaintiff testified that she spent most of her days at home waiting for her daughter to visit. Id. at
After hearing Plaintiff’s testimony, the ALJ questioned a Vocational Expert regarding
Plaintiff’s work history and functional capacity. The ALJ first noted that Plaintiff’s only relevant
employment was her work as a medical assistant. See Pg. ID. 99. The ALJ then posed the
following hypothetical question:
If [claimant] were limited to light work, except that she could only occasionally
climb ramps or stairs and balance and her psychological symptoms would limit
her to simple, routine tasks and work that has only occasional changes in the work
setting and that involves only occasional interaction with the general public, coworkers and supervisors, would there be any jobs in the national economy that
such a person could perform?
Id. The Vocational Expert responded that such a person could perform light, unskilled work as
an inspector (national numbers 180,000), a housekeeper (national numbers 50,000) or an
assembler (national numbers of 125,000). Pg. ID 99.
Noting that Plaintiff claimed to experience debilitating headaches twice a month, the ALJ
then asked the Vocational Expert how many excused or unexcused absences employers generally
allowed employees per month. Pg. ID 100. The Vocational Expert responded that employers
allowed “no more than one per month and no more than a total of eight absences in a 12-month
period of time.” Id. The Vocational Expert stated that because the Dictionary of Occupational
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Tittles (“DOT”) does not cover absenteeism, this testimony was not based upon the DOT, but
upon his professional experience. Id. Plaintiff’s Attorney then asked the Vocational Expert if the
hypothetical individual could find work if she was going to be off task more than 15 to 20
percent of the day. Id. The Vocational Expert responded that there would be no competitive jobs
for such an individual. Id.
In a decision issued on November 24, 2014 the ALJ denied Plaintiff’s claim. See
Decision, Pg. ID 63-78. While finding that Plaintiff had satisfied Step One, the ALJ rejected
Plaintiff’s claim that her asthma and hypothyroidism were severe impairments at Step Two. This
was based on the ALJ’s determination that the record did not contain any significant, objective
medical findings that would support more than minimal limitations on Plaintiff’s ability to
perform work. The ALJ noted that Plaintiff’s mild and intermittent asthma was adequately
managed by medication, her lungs were often clear on physical inspection, and her chest imaging
was often negative. The ALJ further noted that her hypothyroidism status-post thyroidectomy
was managed by medication.
Finally, the ALJ noted that the consultative examiner had
determined that Plaintiff could lift, pull, push, carry, and grip, and did not demonstrate any
shortness of breath, all in contradiction of her testimony. On the other hand, the ALJ found that
Plaintiff’s generalized anxiety disorder and major depressive disorder constituted severe
impairments pursuant to 20 C.F.R. §§ 404.1520(c) and 416.920(c)).
Proceeding to Step Three, the ALJ did not find that any impairment or combination of
impairments met or equaled a listed impairment under 20 C.F.R. Part 404 Subpart P.
Specifically, the ALJ concluded that Plaintiff had not met her burden of demonstrating any
condition or conditions that satisfied listings 3.03 (asthma), 12.04 (affective disorders), or 12.06
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(anxiety related disorders). This conclusion was based on findings that Plaintiff was only mildly
restricted in activities of daily living, and experienced moderate difficulties in social functions,
concentration, persistence and pace. The ALJ also noted that Plaintiff had presented no evidence
that she had experienced an episode of decompensation for an extended duration.
Before proceeding to Step Four the ALJ found that Plaintiff had the following residual
The claimant has the residual functional capacity to perform a full range of work
at all exertional levels but with the following nonexertional limitations: she can
occasionally climb ramps or stairs and balance. Her psychological symptoms
limit her to simple, routine tasks, in work that has only occasional changes in the
work setting, and that involves only occasional interaction with the public, coworkers, and supervisors.
Id. This residual capacity finding was based on a finding that Plaintiff was not fully credible
because her testimony was not supported by objective findings. According to the ALJ, in contrast
to Plaintiff’s testimony, the record showed that Plaintiff’s mental impairments were managed by
medication and therapy when Plaintiff was compliant. The ALJ accorded “great weight” to the
consultative psychological findings of Doctor Matthew P. Dickson, Ph.D. and “great weight” to
the consultative physical examination opinion from Doctor Michael Geoghegan, D.O. The ALJ
gave “little weight” to the medical statement completed by Plaintiff’s treating psychologist,
Doctor D. Magood, M.D, finding her opinion that Plaintiff’s major depressive disorder markedly
or extremely limited her ability interact with others to be inconsistent with the substantial record
At Step Four, the ALJ found that Plaintiff was unable to perform any of her past relevant
work. However, at Step Five the ALJ concluded that there were a significant number of jobs in
the national economy that Plaintiff would be able to perform. This conclusion was based in part
upon the Vocational Expert’s testimony at the administrative hearing. Because Plaintiff could
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perform work as an inspector, a housekeeper, or an assembler, the ALJ determined that she was
not disabled within the meaning of The Act.
After the Appeals Council denied Plaintiff’s request for review, Plaintiff initiated the
present action on March 16, 2016.
See Compl. ECF No. 1. The appeal was referred to
Magistrate Judge Patricia T. Morris for report and recommendation. See ECF No. 4. After the
parties filed cross motions for summary judgment, the magistrate judge issued her report. See
ECF Nos. 10-12.
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
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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.
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).
Under the Social Security Act (“The Act”), a claimant is entitled to disability benefits if
she can demonstrate that she is in fact disabled. Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir.
2007). Disability is defined by The Act as an “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); 20 C.F.R. §§ 404.1505, 416.05. Plaintiff
Weaver carries the burden of establishing that she meets this definition. 42 U.S.C. §§
423(d)(5)(A); see also Dragon v. Comm’r of Soc. Sec., 470 F. App’x 454, 459 (6th Cir. 2012).
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Corresponding federal regulations outline a five-step sequential process to determine
whether an individual qualifies as disabled:
First, the claimant must demonstrate that he has not engaged in substantial gainful
activity during the period of disability. Second, the claimant must show that he
suffers from a severe medically determinable physical or mental impairment.
Third, if the claimant shows that his impairment meets or medically equals one of
the impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1, he is deemed
disabled. Fourth, the ALJ determines whether, based on the claimant’s residual
functional capacity, the claimant can perform his past relevant work, in which
case the claimant is not disabled. Fifth, the ALJ determines whether, based on the
claimant’s residual functional capacity, as well as his age, education, and work
experience, the claimant can make an adjustment to other work, in which case the
claimant is not disabled.
Courter v. Comm’r of Soc. Sec., 479 F. App’x 713, 719 (6th Cir. 2012) (quoting Wilson v.
Comm’r of Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004)). Through Step Four, Plaintiff 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. At Step Five, 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. See Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987).
Plaintiff first objects that the magistrate judge erred in determining that the ALJ’s
assignment of great weight to the opinion of consultative examiner Dr. Geoghegan was
consistent with the record. Plaintiff argues that Dr. Geoghegan did not review the supplemental
medical records in preparing his report, did not discuss Plaintiff’s diagnosis of impingement
syndrome in her right shoulder, did not discuss Plaintiff’s previous complaints of pain in her
back and neck, and did not acknowledge Plaintiff’s previous bunionectomies. Plaintiff also
argues that Dr. Geoghegan’s opinion only related to Plaintiff’s asthma and hypothyroidism.
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At the time Dr. Geoghegan performed his examination of Plaintiff, the extent of the
medical evidence related to her claims of right shoulder and foot pain may be summarized as
follows. During doctor’s appointments on April 23, 2012 and May 5, 2012 Plaintiff reported
right shoulder pain after allegedly dropping a chair on her right shoulder. Pg ID. 322. However
on May 16, 2012 Plaintiff reported to a Doctor that she had injured her right side on May 13,
2012 when she was “horsing around’ with a friend. See Pg. ID 327. Plaintiff also inconsistently
reported intense chronic foot pain. On May 31, 2012 Plaintiff reported that she was no longer in
any pain. See Pg. ID 331. She again did not report any pain during an appointment on April 26,
2013. See Pg. ID 340. During that appointment, Dr. Roome found that Plaintiff had “normal
alignment and mobility” of her extremities. Pg. ID 342.
On July 17, 2013 Dr. Geoghegan performed a physical examination of Plaintiff that
covered her extremities and musculoskeletal. While he did not specifically mention that she had
scars on her feet, he noted that she “had no difficulty getting on and off the examination table, no
difficulty heel and toe walking, no difficulty squatting, and no difficulty hopping.” See Pg. ID
354. In examining Plaintiff’s shoulders, tests of abduction, adduction, internal rotation, external
rotation, and forward elevation came back normal. Pg. ID 355. Examination of her dorsuolumbar
and cervical spine also revealed a normal range of motion. Dr. Geoghegan did not review the
supplemental medical records and did not discuss Plaintiff’s diagnosis of impingement syndrome
or her claims of shoulder pain because those medical records were not submitted by Plaintiff
until over a year after Dr. Geoghegan prepared his opinion.
An ALJ does not err in relying on the opinion of a state medical consultant whose
opinion was issued before the record was complete where the ALJ independently considered
subsequent records. See Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 513-14 (6th Cir. 2010). In
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the present case the ALJ specifically addressed Plaintiff’s claimed foot, shoulder and arm pain,
but did not find the claims credible based on the medical evidence and Plaintiff’s own reports
about her daily activity. See Pg. ID 73-74.
Plaintiff is correct that the ALJ did not address medical records related to Plaintiff’s
impingement syndrome diagnosis.
However, under the Act Plaintiff had the burden of
establishing a “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.” See 42 U.S.C. § 423(d)(1)(A). Plaintiff did not meet her burden of establishing
that any physical impairment related to her impingement was likely to last at least 12 months.
After varying complaints of pain through late 2013 and early 2014, Plaintiff was diagnosed with
impingement syndrome in July of 2014 and received a cortisone injection on July 30, 2014. Pg.
ID 633. At that time P.A. Wines documented that Plaintiff’s symptoms had previously improved
with physical therapy and a cortisone injection, but that the symptoms had returned over the last
several months. Pg. ID 633. Following the injection, “[a]fter ten minutes of observation the
patient noticed that the majority of [her] pain and symptoms were relieved.” See Pg. ID 634.
With the exception of her own, discredited testimony, Plaintiff did not provide any evidence that
any physical impairment related to her impingement syndrome was ongoing. The ALJ therefore
did not err by failing to address Plaintiff’s impingement syndrome diagnosis. See Pasco v.
Comm’r of Soc. Sec., 137 F. App’x 828, 839 (6th Cir. 2005).
For these reasons, the magistrate judge did not err in finding that the ALJ’s assigning of
great weight to the opinion of Dr. Geoghegan was consistent with the record.
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Plaintiff next objects that the ALJ erred in failing to include any functional limitations in
relation to Plaintiff’s physical or exertional impairments. In support of this argument Plaintiff
again points to her neck, back, shoulder and foot pain, as well as to her ongoing asthma. In his
opinion the ALJ found that Plaintiff “has the residual functional capacity to perform a full range
of work at all exertional levels but with the following nonexertional limitations: she can
occasionally climb ramps or stairs and balance.” The magistrate Judge found that this finding
was based on substantial evidence, and addressed Plaintiff’s argument at length in her report and
recommendation. See Rep. & Rec. 17-19.
Because Plaintiff did not meet her burden of
demonstrating medically determinable physical impairment caused by her alleged arm, shoulder,
back and foot pain, see 42 U.S.C. § 423(d)(1)(A), and because the evidence suggested that
Plaintiff’s asthma was mild and adequately managed with medication, the ALJ’s RFC finding is
based on substantial evidence. Plaintiff’s second objection will be overruled.
In her third objection Plaintiff again disputes that the ALJ’s RFC finding was based on
substantial evidence, arguing that the ALJ did not properly account for Plaintiff’s moderate
deficiencies in concentration, persistence, or pace. The ALJ noted that Plaintiff had “moderate
difficulties” with regard to concentration, persistence, or pace. See Pg. ID 70. However, he
clarified that Plaintiff had the ability to sustain attention sufficiently to drive a car, watch
television, use a computer, and complete a crossword puzzle. Id. The ALJ then determined that
Plaintiff was limited to “simple, routine tasks, in work that has only occasional changes in the
work setting, and that involves only occasional interaction with the public, co-workers, and
supervisors.” See Pg. ID 71. In making this determination, the ALJ gave “great weight” to the
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consultative findings of Dr. Dickson and “little weight” to the medical source statement
completed by Dr. Magoon. See Pg. ID 75.
Aside from misstating the magistrate judge’s report, Plaintiff’s objection is also without
merit. Plaintiff correctly points out that limitations to simple work “might be insufficient to
account for moderate deficiencies in concentration, persistence, or pace”, see Gordon v. Comm’r
of Soc. Sec., 2015 WL 5335477 *5 (E.D. Mich. 2015) (emphasis added), particularly where the
ALJ gives substantial weight to evidence that the claimant is impaired in her ability to pay
attention even while performing simple tasks. See Ealy v. Comm’r of Soc. Sec., 594 F.3d 504,
516 (6th Cir. 2010). However, the ALJ in this case made no finding that Plaintiff’s deficiencies
in concentration, persistence, or pace would affect her ability to perform even simple tasks.
Instead, the ALJ specifically noted that Plaintiff retained the ability to perform simple tasks such
as driving, watching television, using the computer, and doing crossword puzzles. His RFC
determination is therefore consistent with his findings and based on substantial evidence.
Plaintiff next objects that the ALJ’s unsupported reliance on state agency medical and
psychological consultants is grounds for remand. As explained by the magistrate judge, the state
agency medical consultants’ opinions were consistent with the record as a whole, and the ALJ
properly considered evidence submitted after the consultants completed their review. The ALJ’s
incorrect assertion that the consultants had the opportunity to view the entire record was
therefore harmless error. Because the opinions were based on substantial evidence, the ALJ did
not err in giving them weight.
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In her fifth objection, Plaintiff argues that the magistrate judge incorrectly found that the
ALJ did not err in assigning little weight to Plaintiff’s treating psychiatrist, Dr. Magoon. In
support of this argument, Plaintiff emphasizes her hallucinations and the troubles that she
reported during appointments on January 24, July 24, and July 28, 2014. See Pg. ID 568-578.
Importantly, in each of those instances Plaintiff had been non-compliant with her medication. Id.
The ALJ specifically found that Plaintiff’s treatment, “which includes psychiatric medications
and therapy, has been relatively effective in controlling her symptoms.” See Pg. ID 74. The ALJ
further found that Dr. Magoon’s medical source statement was not consistent with the substantial
evidence and that he based his findings on Plaintiff’s subjective complaints. See Pg. ID 75-76;
see also Crum v. Sullivan, 921 F.2d 642, 645 (6th Cir. 1990). Because the ALJ gave good reason
for giving little weight to the opinion of Dr. Magoon, Plaintiff’s fifth objection will be overruled.
Plaintiff next objects that the magistrate judge erred in finding that the ALJ’s opinion
provides a logical bridge between the record evidence and the RFC. This objection is
impermissibly general. See Mira, 806 F.2d at 637 (6th Cir. 1986). It is also without merit
because the ALJ sufficiently addressed the record evidence and based his RFC finding on
In her final objection, Plaintiff broadly objects to the Magistrate judge’s conclusion that
the case be affirmed. An “objection” that merely disagrees with a magistrate judge’s
determination is not a valid objection. Howard, 932 F.2d at 509. For this reason, and for the
reasons set forth above, Plaintiff’s final objection will be overruled.
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Because the ALJ reached his decision using correct legal standards and because those
findings were supported by substantial evidence, the Court must affirm it, even if reasonable
minds could disagree on whether the individual was disabled or substantial evidence could also
support a contrary result. Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003); see also
Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2006) (“If substantial evidence
supports the Commissioner’s decision, this Court will defer to that finding even if there is
substantial evidence in the record that would have supported an opposite conclusion.”).
Accordingly, it is ORDERED that Plaintiff Weaver’s objections, ECF No. 13, are
It is further ORDERED that the report and recommendation, ECF No. 12, is
It is further ORDERED that Plaintiff Weaver’s motion for summary judgment, ECF No.
10, is DENIED.
It is further ORDERED that Defendant Commissioner’s motion for summary judgment,
ECF No. 11, is GRANTED.
It is further ORDERED that the Commissioner of Social Security’s decision is
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: March 21, 2017
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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 March 21, 2017.
s/Kelly Winslow for
MICHAEL A. SIAN, Case Manager
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