Davenport v. Social Security, Commissioner of

Filing 19

ORDER Accepting 18 Report and Recommendation. Signed by District Judge Denise Page Hood. (CGre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TRACY Y. DAVENPORT,
Plaintiff,

Case No. 10-11350

v.

Honorable Denise Page Hood

COMMISSIONER OF SOCIAL
SECURITY
Defendant.
_________________________________/
ORDER ACCEPTING REPORT AND RECOMMENDATION
I. Introduction
This matter is before the Court on Magistrate Judge R. Steven Whalen’s Report and
Recommendation, dated May 9, 2011 [Docket No. 18]. On July 7, 2010, Plaintiff filed a Motion
for Summary Judgment or Remand pursuant to Sentence Four [Docket No. 10] and a Motion to
Remand pursuant to Sentence Six [Docket No. 11]. On July 29, 2010, Defendant filed a Motion
for Summary Judgment [Docket No. 14]. Plaintiff filed a Response to the Motion for Summary
Judgment on August 9, 2010 [Docket No. 16]. The Magistrate Judge issued a Report and
Recommendation denying Defendant’s Motion for Summary Judgment and granting Plaintiff’s
Motions for Sentence Four and Sentence Six Remand on May 9, 2011 [Docket No. 18]. Neither
party filed any objections to the Magistrate Judge’s Report and Recommendation.
II. Standard of Review
A. Judicial Review
Judicial review of the Commissioner’s final decision is limited in scope to determining

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whether the decision is supported by substantial evidence and whether the Commission
committed legal error. 42 U.S.C. § 405(g) (2003); Sherrill v. Sec’y of Health and Human
Services, 757 F.2d 803, 804 (6th Cir. 1985). Substantial evidence is defined as more than a
scintilla of evidence but less than a preponderance. Sherrill, 757 F.2d at 804. In deciding
whether substantial evidence supports the ALJ’s decision, courts do not “try the case de novo,
resolve conflicts in evidence, or decide questions of credibility.” Bass v. McMahon, 499 F.3d
506, 509 (6th Cir. 2007); Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Instead, courts
look for “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. V.
NLRB, 305 U.S. 197, 229 (1938)). In determining whether the evidence is substantial, the court
must “take into account whatever in the record fairly detracts from its weight.” Beavers v. Sec’y
of H.E.W., 577 F.2d 383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB, 340
U.S. 474, 488 (1951)). The reviewing court must examine the administrative record as a whole,
and may look to any evidence in the record, regardless of whether it has been cited by the ALJ.
Walker v. Sec’y of Health and Human Services, 884 F.2d 241 (6th Cir. 1989).
Because in the case at issue, “the Appeals Council reviewed and supplemented the
decision of the ALJ, [this Court’s] review is of the [A]ppeals Council decision and the portions
of the ALJ decision that it adopted.” O’Dell v. Astrue, 736 F.Supp.2d 378, 385 (D.N.H. 2010)
(citing Sims v. Apfel, 530 U.S. 103, 106-07 (2000)). In addition, the standard of review
exercised by the reviewing court is deferential and “presupposes that there is a zone of choice
within which the decisionmakers can go either way, without interference by the courts.” Mullen
v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc).

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To preserve the right to appeal the Magistrate Judge’s recommendation, parties are
obligated to file objections to the Report and Recommendation within fourteen days of service of
copy. 28 U.S.C. § 636(b)(1); E.D. Mich. LR 72.1(d)(2). Failure to file specific objections
constitutes a waiver of any further right to an appeal. In the instant case, there were no
objections filed by either party to the Magistrate Judge’s Report and Recommendation.
B. Summary Judgment
Summary judgment is appropriate when there are no genuine issues of material fact in
dispute and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56.
Rule 56 “mandates the entry of summary judgment, after adequate time for discovery and upon
motion, against a party that fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In such a case, “there can be no
genuine issue of material fact, since a complete failure of proof concerning an essential element
of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323. In
addition, the “mere existence of a scintilla of evidence in support of plaintiff’s position will be
insufficient.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In deciding a motion
for summary judgment, the court must view the evidence and draw all reasonable inferences in
favor of the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
III. Applicable Law
Disability is defined in the Social Security Act as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental

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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).
In order to evaluate whether a claimant is disabled, the Commissioner must consider, in
sequence, whether the claimant: 1) worked during the alleged period of disability; 2) has a severe
impairment; 3) has an impairment that meets or equals the requirements listed in the regulation;
4) can return to past relevant work; and 5) if not, whether the claimant can make an adjustment
to other work, allowing the claimant to perform other work in the national economy. 20 C.F.R. §
416.920(a). The plaintiff has the burden of proof in regards to steps one through four, but the
burden shifts to the Commissioner at step five to demonstrate that notwithstanding the claimant’s
impairment, the claimant retains the residual functional capacity to perform specific jobs that
exist in the national economy. Richardson v. Sec’y of Health and Human Services, 735 F.2d
962, 964 (6th Cir. 1984).
The Supreme Court recognizes only two kinds of remands involving social security
cases–those pursuant to Sentence Four and those pursuant to Sentence Six of 42 U.S.C. § 405(g).
Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991); Sullivan v. Finkelstein, 496 U.S. 617, 626
(1990). Sentence Four allows a district court to remand in conjunction with a judgment
affirming, modifying or reversing the Commissioner’s decision. Melkonyan, 501 U.S. at 99-100.
Sentence Four remands are appropriate in situations where the decision maker incorrectly
applied the regulations in denying disability benefits. Faucher v. Sec’y of Health & Human
Services, 17 F.3d 171, 174 (6th Cir. 1994). In such situations, the district court must reverse the
Commissioner’s decision and remand the matter for further proceedings in order to correct the
error. Id. Sentence Six states that the court “may at any time order additional evidence to be

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taken before the Commissioner of Social Security, but only upon a showing that there is new
evidence which is material and that there is good cause for the failure to incorporate such
evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g). The court’s Sentence Six
remand is not a “substantive ruling as to the correctness of the Secretary’s decision.”
Melkonyan, 501 U.S. at 100.
IV. Analysis
Plaintiff’s original motion for summary judgment raised seven arguments in favor of
remand. Pl.’s Mot. For Summ. J. at 7-20. This Court agrees with the Magistrate Judge’s
assessment that four of Plaintiff’s arguments are without merit, while Plaintiff’s other three
arguments stemming from the ALJ’s misreading of the psychological records support a remand
for further fact-finding. Plaintiff’s additional motion for a “Sentence Six” remand [Docket No.
11-12] will be briefly discussed following analysis of Plaintiff’s Sentence Four arguments.
A. Meritless Arguments
1. Heightened Duty
Plaintiff, represented herself at the time of the hearing, claims that the ALJ breached his
“heightened duty” to develop the record by arguing that: (1) the ALJ did not make “a special
effort to obtain all relevant evidence”; (2) the ALJ relied on a non-examining assessment; (3) the
ALJ should have recognized Plaintiff’s condition was inconsistent with her assessment and
sought additional information. Pl.’s Mot. For Summ. J. at 11-14.
The Court agrees with the Magistrate Judge that the record contains ample evidence of
the ALJ’s efforts to ensure the Plaintiff: 1) had a right to counsel, 2) had a list of attorneys if
desired, and 3) had adequate time to find counsel. Tr. at 260-64; R & R at 10. The ALJ also

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requested additional medical evidence from the Plaintiff. Tr. at 298-99. The Court also agrees
with the Magistrate Judge that under 20 C.F.R. § 416.912(e), the ALJ was within his discretion
in declining to order additional records as the records already obtained from Plaintiff adequately
document her limitations. R & R at 10. The Court also agrees with the Magistrate Judge that a
good faith misreading of poorly handwritten treatment notes does not support Plaintiff’s
argument that the ALJ failed in his affirmative duty to fully develop the record. R & R at 10.
2. Residual Functional Capacity (“RFC”) Assessment
Plaintiff disputes the ALJ’s finding that she was capable of sedentary work, Pl.’s Mot.
For Summ. J. at 13., citing Plaintiff’s claim in the RFC that she can only walk one block. Tr. at
98. Plaintiff also cites the same assessor’s conclusion that she is “mostly credible,” and that her
one block limitation should have been in the RFC. Tr. at 91; Pl.’s Mot. For Summ. J. at 13.
The Court agrees with the Magistrate Judge that the non-examining Assessment cannot
be read to endorse Plaintiff’s “one block” claim. R & R at 11. The paragraph that contains
Plaintiff’s “one block” claim ends with the examiner’s statement that she is only “partially,”
rather than mostly credible. Tr. at 91; R & R at 11. The examiner also did not indicate which
claims he found credible, but instead noted several activities that Plaintiff performed without any
help, Tr. at 98, which undermine Plaintiff’s claims of limitation. R & R at 11. Plaintiff’s
argument is further contradicted by the Assessment’s finding that Plaintiff was capable of
standing and/or walking at least two hours in an eight hour workday. Tr. at 91.
3. Obesity
Plaintiff argues that the ALJ did not consider the work related effects of her obesity as
required by S.S.R. 02-01p. Pl.’s Mot. For Summ. J. at 14-16. The Magistrate Judge correctly

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states that while obesity by itself does not constitute a disability, pursuant to S.S.R. 02-01p,
obesity must be considered in combination with other impairments in determining whether the
claimant is disabled. R & R at 11.
The Court agrees with the Magistrate Judge that the ALJ’s opinion contains many
references to Plaintiff’s morbid obesity. R & R at 11. The ALJ found morbid obesity a “severe”
impairment at Step Two of his analysis. Tr. at 17, 20. In noting that Plaintiff was relegated to
sedentary work, the ALJ acknowledged that “obesity would likely interfere with exertional
activities.” Tr. at 22. Obesity was also listed among Plaintiff’s hypothetical limitations. Tr. at
297.

4. Credibility
Plaintiff argues that the ALJ did not provide sufficient reasons for discounting her

testimony that she napped/laid down on a daily basis. Pl.’s Mot. For Summ. J. at 16-18.
Plaintiff accuses the ALJ of omitting the limitation from the hypothetical question in order to
elicit a non-disability finding from the vocational expert (“VE”). Id. at 18. Plaintiff also
contends that the ALJ improperly discredited her claims by noting that she applied for disability
insurance benefits (“DIB”) shortly after her unemployment benefits ended. Id. at 17.
The Court agrees with the Magistrate Judge that the ALJ’s conclusion that Plaintiff did
not require daily naps is well explained and well supported by the record. R & R at 12. The
ALJ cited the May 2007 sleep apnea study stating that Plaintiff did not nap during the day. Tr. at
22 (citing Tr. at 145). Also, in March 2005, Plaintiff denied symptoms of sleepiness as a result
of the use of a CPAP machine. Tr. at 118. The Court agrees with the Magistrate Judge that
Plaintiff’s allegations that the ALJ omitted key impairments from the hypothetical question for
the purpose of unfairly denying her benefits is without support. R & R at 12. The Court agrees

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with the Magistrate Judge that the ALJ was entitled to discount Plaintiff’s credibility on the basis
that she applied for DIB immediately upon the expiration of her unemployment benefits.
B. The ALJ’s Misreading of the Psychological Records Mandates A Remand for
Further Factfinding
Plaintiff’s remaining arguments for remand stem from the ALJ’s erroneous finding that
Plaintiff was assigned a GAF score of 62-65 (suggesting moderate or mild psychological
impairment) by a treating source in February of 2007, and similar scores in April and August of
2007. Tr. at 18 (citing Tr. at 183, 186, 189). Plaintiff has submitted a letter by her treating
psychiatrist stating that the notes should be read to state GAF scores of 40-45. Pl.’s Index of
Exhibits [Docket No. 12].
The Court agrees with the Magistrate Judge that the GAF score is not dispositive of
whether an individual is disabled. R & R at 14. However, in this case, the ALJ stated that he
relied directly on this misreading when finding that Plaintiff experienced only “mild”
psychological impairment. Tr. at 18. The Court also agrees with the Magistrate Judge that the
ALJ’s erroneous finding created additional errors. R & R at 14. The ALJ’s hypothetical was
tainted by the ALJ’s erroneous statement that the record contained “no indication that . . .
[Plaintiff’s] depression is of sufficient moment to impact upon the hypothetical individual’s
ability to perform the usual and customary cognitive aspects of vocational functioning.” Tr. at
297. The Court agrees with the Magistrate Judge that, at a minimum, it is not clear whether the
ALJ would have added additional limitations to the hypothetical had he known that Plaintiff’s
GAF scores were consistently in the 40-45 range. R & R at 14.
The Court agrees with the Magistrate Judge that although the ALJ’s misreading of the
psychological records was unearthed as a result of newly submitted material, independent
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grounds exist for a Sentence Four remand. R & R at 14 n.1. The transcript establishes that: 1)
Plaintiff received extensive psychological counseling, and 2) the psychological records had not
been reviewed at the time of the hearing. Based on these facts, the Court also agrees with the
Magistrate Judge that the hypothetical question, posed without the benefit of the counseling
records, appears to have understated Plaintiff’s psychological impairments. Tr. at 286-87, 29497.
C. Sentence Six
Plaintiff argues alternatively that the case should be remanded pursuant to Sentence Six
of 42 U.S.C. § 405(g) for consideration of later submitted material, including psychological
treating notes and the above referenced letter by Plaintiff’s treating psychiatrist. Pl.’s Mot. to
Remand Pursuant to Sentence Six. The Court agrees with the Magistrate Judge that courts may
consider the additional evidence only for purposes of determining whether remand is appropriate
under Sentence Six of 42 U.S.C. § 405(g). R & R at 15.
The Magistrate Judge notes that “newer” records can be divided into three categories. Id.
The first group consists of psychological records pre-dating the ALJ’s September 26, 2007
decision. Tr. at 244-257. The Court agrees with the Magistrate Judge that these records are
“material” to the determination. R & R at 15. The second group pertains to Plaintiff’s condition
subsequent to the hearing, which the Court agrees would be immaterial to the present application
for benefits. Sizemore v. Sec’y of Health & Human Services, 865 F.2d 709, 712 (6th Cir. 1988).
The third category consists of Plaintiff’s treating psychiatrist’s letter stating that she had
assigned Plaintiff GAF’s exclusively in the 40-45 range. Pl.’s Index of Exhibits [Docket No.
12]. The Court agrees with the Magistrate Judge that because the letter is new, material to the

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original determination, and that good cause exists for submitting it after the ALJ’s opinion, the
letter qualifies for a Sentence Six remand. R & R at 15. The Court also agrees with the
Magistrate Judge that because a Sentence Four remand is appropriate, the Sentence Six material,
even records created after the ALJ decision, may be considered in toto upon remand. Id. at 1516.
V. Conclusions
For the reasons stated above, judgment should be entered for the Plaintiff, remanding the
case under Sentence Four. Id. at 16. The Court agrees with the Magistrate Judge that because
Plaintiff’s proof of disability is not “overwhelming,” the errors discussed herein, while critical,
do not automatically entitle the Plaintiff to benefits. Id. The Court also agrees with the
Magistrate Judge that the case should be remanded for further proceedings, directing the ALJ to:
1) re-examine Plaintiff’s psychological records in light of Plaintiff’s treating psychiatrist’s
clarification letter, 2) consider the other Sentence Six evidence submitted to the Appeals
Council, and 3) take additional VE testimony reflecting an accurate reading of the psychological
records. Id.
Accordingly,
IT IS ORDERED that Magistrate Judge R. Steven Whalen’s Report and
Recommendation [Docket No. 18, filed on May 9, 2011] is ACCEPTED and ADOPTED as this
Court’s findings and conclusions of law.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment or Remand
pursuant to Sentence Four [Docket No. 10, filed on July 7, 2010] and Plaintiff’s Motion to
Remand pursuant to Sentence Six [Docket No. 11, filed on July 7, 2010] is GRANTED to the

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extent that the case be remanded for further proceedings pursuant to Sentence Four of 42 U.S.C.
§ 405(g).
IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment [Docket
No. 14, filed on July 29, 2010] is DENIED.
IT IS FURTHER ORDERED that this cause of action is DISMISSED with prejudice.

s/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: June 30, 2011
I hereby certify that a copy of the foregoing document was served upon counsel of record on
June 30, 2011, by electronic and/or ordinary mail.
s/LaShawn R. Saulsberry
Case Manager

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