Thrushman v. Social Security, Commissioner of

Filing 24

ORDER Overruling Plaintiff's 22 Objections, Adopting the 21 Report and Recommendation, Denying Plaintiff's 18 Motion for Summary Judgment, Granting Defendant's 20 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
NORTHERN DIVISION
AMANDA L. THRUSHMAN,
Plaintiff,

Case. No. 17-cv-10292

v.

Honorable Thomas L. Ludington
Mag. Judge Mona K. Majzoub

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
__________________________________________/
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
Plaintiff Amanda L. Thrushman (Plaintiff) applied for disability benefits on May 13,
2014 alleging disabilities beginning March 1, 2012. Her application was initially denied on
September 4, 2014. Plaintiff requested a hearing before an Administrative Law Judge (ALJ). The
hearing was held on December 3, 2015, after which the ALJ determined that Plaintiff was not
disabled. The Appeals Council denied review. Plaintiff sought review in this Court on January
30, 2017. The case was referred to Magistrate Judge Mona K. Majzoub. The parties filed cross
motions for summary judgment. Judge Majzoub issued a report recommending that the Court
grant Defendant’s motion and deny Plaintiff’s motion. Plaintiff filed timely objections to Judge
Majzoub’s report and recommendation.
I.
Judge Majzoub reviewed Plaintiff’s factual summary (ECF No. 18 at 6-12) as well as the
ALJ’s factual summary (TR. at 18–20, 21). She determined that both summaries were consistent
with the evidentiary record and therefore incorporated both by reference. Rep. & Rec. at 2. As

neither party has objected to those factual summaries, they will be incorporated by reference
herein as well. Notably, the ALJ found that Plaintiff met the insured status requirements of the
Social Security Act and that Plaintiff had not engaged in substantial gainful activity since the
alleged onset of the disability. TR. at 15. The ALJ found that Plaintiff suffered from the
following severe impairments: degenerative disc disease of the cervical spine, fibromyalgia,
Grave’s disease/hyperthyroidism, and migraine headaches. Id. The ALJ ultimately determined
that Plaintiff was unable to perform past relevant work under 20 CFR 404.1565, but that she had
the residual functional capacity (RFC) to perform light work as defined in 20 CFR 404.1567(b).
Id. at 17–20.
II.
A.
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
he can demonstrate that he 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. A

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plaintiff carries the burden of establishing that he 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).
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, the plaintiff bears
the burden of proving the existence and severity of limitations caused by his impairments and the
fact that he is precluded from performing his 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).
B.
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

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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.
III.
Plaintiff raises two objections to Judge Majzoub’s report and recommendation, which
will be addressed in turn.
A.
First, Plaintiff contends Judge Majzoub “failed to fully analyze the error inherent in the
ALJ’s weighing of the opinions of plaintiff’s treating physician, Dr. Mika.” Obj. at 2, ECF No.

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22. Specifically, Plaintiff notes that the ALJ observed: “Dr. Mika, D.O., one of claimant’s
treating doctors, opined that the claimant could perform work at a less than sedentary exertional
level requiring frequent position changes, and missing two to three days of work per month due
to her impairments (9F).” Id. at 2–3 (citing TR. at 19–20). As Plaintiff notes, the ALJ discounted
Dr. Mika’s opinions: “I give this opinion little weight, as the opinion is not consistent with the
record as a whole which shows only mild to moderate disc disease of the cervical spine with
intact sensation and moderate pain. Further, Dr. Mika lacks Social Security Administration
disability program knowledge.” Id. (citing TR. 19–20). Plaintiff contends that these reasons the
ALJ offered for discounting Dr. Mika’s opinion “are not good reasons.” (emphasis in original).
Plaintiff contends (as she did in her motion for summary judgment) that “Dr. Mika’s lack
of program knowledge was irrelevant because any such knowledge or lack of knowledge on the
doctor’s part would not impact upon his establishment of plaintiff’s limitations, which were
based upon the doctor’s examinations and test findings, not legal principles.” Id. at 3. Plaintiff
contends that Judge Majzoub erred in that she glossed over the ALJ’s error. Specifically, after
summarizing Plaintiff’s argument, Judge Majzoub stated as follows:
Plaintiff is correct in this regard. Nevertheless, as Plaintiff concedes, Dr. Mika’s
knowledge of the SSA’s disability program, or lack thereof, is indeed relevant to
Dr. Mika’s conclusion that Plaintiff has been continuously disabled since January
2, 2014. This is because the issue of whether a claimant meets the statutory
definition of disability is a medical-vocational determination reserved for the
Commissioner; it is not a determination that a treating physician is qualified to
make. 20 C.F.R. § 404.1527(d); Kidd v. Comm’r of Soc. Sec., 283 F. App’x 336,
340-41 (6th Cir. 2008); SSR 96-5p, 1996 WL 374183 (July 2, 1996).
Accordingly, Dr. Mika’s lack of knowledge of the SSA’s disability program is
certainly a good reason to discount Dr. Mika’s opinion that Plaintiff is disabled.
There is no error here.
Id. at 3–4 (citing R&R at 9). Plaintiff contends that Judge Majzoub did not properly
distinguish between discounting Dr. Mika’s opinion concerning specific limitations and

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discounting Dr. Mika’s opinion concerning whether Plaintiff was continuously disabled. Id. In
other words, even if it was not properly within Dr. Mika’s purview to opine on whether Plaintiff
was continuously disabled (a finding reserved from the commissioner), it was well within Dr.
Mika’s purview to express an opinion concerning the existence of specific limitations, which is
precisely what Dr. Mika did. Plaintiff contends that the ALJ improperly relied on Dr. Mika’s
“lack of Social Security Administration disability program knowledge” to discount Dr. Mika’s
opinion concerning the existence of specific limitations.
Notably, however, Plaintiff omits the remainder of the ALJ’s quote which provided
context regarding which opinions he was discounting and the reasons why. He not only referred
to Dr. Mika’s opinion concerning specific limitations, but also to Dr. Mika’s opinion concerning
continuing disability:
David Mika, D.O., one of the claimant’s treating doctors, opined that the claimant
could perform work at a less than sedentary exertional level requiring frequent
position changes, and missing two to three days of work per month due to her
impairments. (9F). The doctor further opined that the claimant has been
continuously disabled since January 2, 2014. (13F). I give this opinion little
weight, as the opinion is not consistent with the record as a whole which shows
only mild to moderate degenerative disc disease of the cervical spine with intact
sensation and moderate pain. Further, Dr. Mika lacks Social Security
Administration disability program knowledge.
TR. at 19–20. (emphasis added). Thus, the ALJ discounted both opinions rendered by Dr. Mika,
namely the specific limitations and the finding of continuous disability. The ALJ gave two
reasons for discounting those opinions, namely inconsistency with the record, and lack of
program knowledge. Granted, the ALJ did not specify which reason mapped onto which opinion,
or if both reasons motivated his decision for rejecting both opinions. However, as Plaintiff points
out, lack of program knowledge is logically more related to the doctor’s opinion concerning
whether Plaintiff was continuously disabled, a finding that is reserved for the commissioner. 20

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C.F.R. § 404.1527(d); Kidd v. Comm’r of Soc. Sec., 283 F. App'x 336, 340–41 (6th Cir. 2008);
SSR 96-5p, 1996 WL 374183 (July 2, 1996). Inconsistency with other substantial evidence in the
record, on the other hand, is a reason for discounting the doctor’s opinion concerning specific
limitations. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Indeed, inconsistency with other
substantial evidence is one of the few reasons not to give complete deference to a treating
physician’s opinion. Id. Thus, irrespective of the propriety of considering lack of program
knowledge, inconsistency with other substantial evidence in the record is a sufficient,
independent reason for discounting the doctor’s opinion concerning specific limitations.
Indeed, Judge Majzoub identified that inconsistency as a basis for sustaining the ALJ’s
conclusions, finding them supported by substantial evidence:
Plaintiff also argues that the ALJ’s other reason for discounting Dr. Mika’s
opinion – that “it is [not] consistent with the record as a whole which shows only
mild to moderate degenerative disease of the cervical spine with intact sensation
and moderate pain” – is not a good reason because the record and the ALJ’s
decision show that Plaintiff suffers from more than mild to moderate degenerative
disc disease and moderate pain – she also suffers from severe impairments of
fibromyalgia and migraines. (Docket no. 18 at 15-19.) A plain reading of Dr.
Mika’s opinion, however, indicates that it is based on Plaintiff’s diagnosis of
“cervical disc radiculopathy.” (See TR 377.) It was therefore both logical and
reasonable for the ALJ to discount Dr. Mika’s opinion on the basis that it was
inconsistent with only the record evidence regarding Plaintiff’s cervical spine.
The ALJ’s reasoning in this regard constitutes a good reason under the
regulations, as it is sufficiently specific to make clear to any subsequent reviewers
the weight that he gave to Dr. Mika’s medical opinion, especially when read in
conjunction with the ALJ’s summary of the record evidence concerning Plaintiff’s
cervical spine. (See TR 18.) For these reasons, Plaintiff’s Motion for Summary
Judgment concerning the ALJ’s assessment of Dr. Mika’s opinion should be
denied
R&R at 10.
Plaintiff argues that it should not be assumed that the ALJ would have reached the same
conclusion concerning Dr. Mika’s opinion on specific limitations had he not considered Dr.
Mika’s lack of program knowledge. This argument is unpersuasive for two reasons. First, a
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natural reading of the ALJ’s opinion undermines Plaintiff’s argument. The ALJ identified two
opinions of Dr. Mika that the ALJ discounted, followed by two reasons for discounting those
opinions. It is reasonable to assume that the first reason mapped onto the first opinion and the
second reason mapped onto the second opinion. In other words, it appears that lack of program
knowledge was not a basis for discounting Dr. Mika’s opinion concerning specific limitations.
Second, it is reasonable to assume that the ALJ would have reached the same conclusion
regarding the weight of Dr. Mika’s opinion on specific limitations had he only relied on the
inconsistency with the evidentiary record. In fact, there are few reasons not to accord controlling
weight to a treating physician’s opinion concerning specific limitations. Inconsistency with the
evidentiary record is one such reason, whereas “lack of program knowledge” is not. 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2). Accordingly, Plaintiff’s first objection will be overruled.
B.
Plaintiff’s second objection asserts that Judge Majzoub “failed to fully analyze the impact
of plaintiff’s migraines.” Obj. at 5. For clarity, the entirety of Plaintiff’s second objection reads
as follows:
Plaintiff argued in her motion that the ALJ did not sufficiently deal with the effect
of her migraines, imposing only “postural” limitations that restrict physical
activities. Plaintiff noted that “the biggest issue with a migraine is its
incapacitating effect and duration. In that regard, plaintiff testified that her
migraines occurred about four times a month, and tended to last two days.” Pl’s
Brf., at 17. To this, the Magistrate wrote, “Plaintiff, however, does not indicate
what additional limitations the ALJ should have assessed to accommodate for her
migraines” (R&R 12). This completely misses the point. If plaintiff would miss
up to eight days a month (four migraines at two days each), she could not work
regardless of the limitations imposed. The vocational expert testified that more
than one absence from work per month would be work-preclusive (Tr. 60-61).
Obj. at 5. Asserting that Judge Majzoub “completely misses the point” is not a particularly
thorough effort to identify the aspects of Judge Majzoub’s opinion that Plaintiff is objecting to

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and specify the errors contained therein, as Plaintiff is required to do under the Magistrate’s Act.
See Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986); Howard v. Sec’y of Health and Human
Servs., 932 F.2d 505, 509 (6th Cir. 1991). Plaintiff’s objection is meritless for several reasons.
Plaintiff identifies no evidence in the record to support the notion that the number of migraine
days per month (four migraines at two days each = eight migraine days) necessarily equates to
the number of days she would be unable to perform any work. Without any evidence of such a
limitation in the evidentiary record, it is unsurprising that the ALJ did not find that such a
limitation existed.
The only evidence Plaintiff does identify in the record is the vocational expert’s
testimony that more than one absence from work per month would be work-preclusive. Obj. at 5
(citing TR. 60–61). Plaintiff cites to this testimony with no discussion of the impact it had (or
should have had) on the ALJ’s findings or Judge Majzoub’s findings. With regard to her
migraines, Judge Majzoub pointed out that Plaintiff did not identify what additional limitations
the ALJ should have imposed. Plaintiff seems to imply that the ALJ should have determined that
her migraines rendered her entirely incapacitated for eight days per month. Again, she cites to no
medical evidence in the record supporting that limitation. Notwithstanding the frequency and
length of her migraines, Dr. Holmes’ opined that that Plaintiff was able to perform a modified
range of light exertional work. TR. at 19. Judge Majzoub also found that a substantial evidentiary
basis existed to support the ALJ’s finding that Dr. Holmes opinion was entitled to more weight
than Dr. Mika’s opinion, where the latter was inconsistent with the evidentiary record. Plaintiff’s
unadorned citation to the vocational expert’s testimony is simply non-responsive to the ALJ’s
opinion and to Judge Majzoub’s opinion. Indeed, in her motion for summary judgment, Plaintiff
did not identify the vocational expert’s testimony as a basis to undermine the ALJ’s conclusions

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concerning the limitations imposed by her migraines. Thus, the Court will not consider its effect
on the analysis. See United States v. King, 248 F. Supp. 3d 1062, 1066 (D.N.M. 2017) (quoting
Marshall v. Chater, 75 F.3d. 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in
objections to the magistrate judge’s recommendation are deemed waived.”).
IV.
Accordingly, it is ORDERED that Plaintiff’s objections, ECF No. 22, are
OVERRULED.
It is further ORDERED that Judge Majzoub’s report and recommendation, ECF No. 21,
is ADOPTED.
It is further ORDERED that Plaintiff’s motion for summary judgment, ECF No. 18, is
DENIED.
It is further ORDERED that Defendant’s motion for summary judgment, ECF No. 20, is
GRANTED.
It is further ORDERED that the Commissioner of Social Security’s decision is
AFFIRMED.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: March 29, 2018

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 29, 2018.
s/Kelly Winslow
KELLY WINSLOW, Case Manager

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