Perez v Social Security, Commissioner of

Filing 15

ORDER Adopting Report and Recommendation for Denying 10 Motion to Remand filed by Benny Perez, Granting 11 Motion for Summary Judgment filed by Social Security, Commissioner of re 12 Report and Recommendation, Signed by District Judge Sean F. Cox. (JHer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Benny Perez,
Plaintiff,
v.

Case No. 11-10182

Commissioner of Social Security,

Honorable Sean F. Cox

Defendant.
_________________________________/
ORDER ADOPTING
REPORT AND RECOMMENDATION
Plaintiff Benny Perez (“Plaintiff”) filed this action challenging the Commissioner of
Social Security’s unfavorable decision disallowing benefits. Thereafter, Plaintiff filed a motion
seeking remand and the Commissioner filed a motion for summary judgment. Those motions
were referred to Magistrate Judge R. Steven Whalen, pursuant to 28 U.S.C. § 636, for issuance
of a report and recommendation.
On February 22, 2012, Magistrate Judge Whalen issued his report and recommendation
(“R&R”) wherein he recommends that the Court deny Plaintiff’s motion for remand, grant the
Commissioner’s motion for summary judgment, and affirm the findings of the Commissioner.
(Docket Entry No. 12).
Pursuant to FED. R. CIV. P. 72(b), a party objecting to the recommended disposition of a
matter by a Magistrate Judge must file objections to the R&R. “The district judge to whom the
case is assigned shall make a de novo determination upon the record, or after additional

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evidence, of any portion of the magistrate judge’s disposition to which specific written objection
has been made.” Id.
On March 3, 2012, Plaintiff filed written objections to the February 22, 2012 R&R.
(Docket Entry No. 13).
First, Plaintiff objects to the Magistrate Judge’s determination that the ALJ’s
hypothetical posed to the vocational expert adequately addressed the Plaintiff’s moderate
deficiencies in concentration, persistence and pace. (Obj. at 1). Having reviewed the record, this
Court agrees with the Magistrate Judge that there is no basis to overturn the ALJ’s decision
regarding Plaintiff’s deficiencies in concentration, persistence and pace.
Plaintiff relies heavily on the conclusions of Dr. Kishore Kondapaneni, who examined
Plaintiff in 2009, and determined that Plaintiff had moderate to marked deficiencies of
concentration, persistence and pace. (Tr. at 623). Before the Court discusses the ALJ’s
hypothetical to the vocational expert, the Court must first address the ALJ’s decision to discount
the conclusions of Dr. Kondapaneni.
As stated by the Magistrate Judge, the ALJ issued a very thorough discussion of
Plaintiff’s medical records and the conclusions of Plaintiff’s physicians. Having reviewed Dr.
Kondapaneni’s records, the Court agrees that the ALJ did not err by concluding to give less
weight to Dr. Kondapaneni’s opinions. First, Dr. Kondapaneni’s report contains little more than
the subjective complaints of Plaintiff. The substantive portion of Dr. Kondapaneni’s records
consisted only of checked boxes on a form covering the periods of July 2009 to December 2009.
In fact, among the list of memory, concentration, societal interaction, and adaptive limitations
relied upon by Dr. Kondapaneni on the form that he filled out, none were checked as “markedly

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limited,” most were identified as “moderately limited,” and some were identified as “not
significantly limited.” (Tr. at 624-625). Moreover, contrary to Plaintiff’s contention, the ALJ did
not completely reject the conclusions of Dr. Kondapaneni. Instead, the ALJ simply chose to give
greater weight to records dating back to Plaintiff’s incarceration and the conclusions of the State
agency exams, which present a history of lesser societal and concentrational limitations. The
ALJ’s determination that Plaintiff’s societal and concentrational limitations are not severe as
presented by Dr. Kondapaneni is supported by substantial evidence.
After determining the severity of Plaintiff’s limitations, the ALJ presented to the
vocational expert a hypothetical involving an individual who could perform jobs limited to
“simple, routine, repetitious tasks with one or two-step instructions, that does not impose . . .
strict production quotas, meaning the responsibility to produce a specified number of units of
work in a specified period of time . . . .” (Tr. at 55). Thus, while the ALJ did not specifically
use the terms “concentration,” “persistence,” and “pace,” the ALJ clearly addressed these issues
in the hypothetical presented to the ALJ. The Court therefore finds Plaintiff’s objections
regarding the weight afforded to Dr. Kondapaneni’s opinions and to the ALJ’s hypothetical are
without merit.
Next, Plaintiff objects to the Magistrate Judge’s conclusion that the ALJ did not err in his
consideration of Plaintiff’s Global Assessment of Functioning (“GAF”)1. The Magistrate Judge
found that the ALJ’s discussion of Plaintiff’s GAF does not provide grounds for remand. Again,

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“GAF is a clinician's subjective rating, on a scale of zero to 100, of an individual's
overall psychological functioning . . . A GAF score may help an ALJ assess mental RFC, but it is
not raw medical data. Rather, it allows a mental health professional to turn medical signs and
symptoms into a general assessment, understandable by a lay person, of an individual's mental
functioning.” Kornecky v. Commissioner of Social Security, 167 Fed.Appx. 496, 503 at n.7.
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this Court agrees with the Magistrate Judge that there is no basis to overturn the ALJ’s decision
regarding Plaintiff’s mental impairments and his functional capacity. The ALJ adequately
addressed the GAF scores and his reasons to discount them. (Tr. at 21); See Kornecky, 167
Fed.Appx. at 511 (finding low GAF scores insufficient to find that ALJ’s decision was not
support by substantial evidence). The Court finds this objection is without merit.
Next, Plaintiff objects to the Magistrate Judge’s determination that “Plaintiff’s
Personality disorder does not mandate a finding of disability at Step 3 of the Administrative
Sequence.” (Obj. at 6). Specifically, Plaintiff contends that his impairments meet those of
Listing 12.08 – Personality Disorders. Plaintiff again relies on the conclusions of Dr.
Kondapaneni to support his claims that his psychological limitations are more severe than the
ALJ concludes. As stated above, the ALJ’s conclusions were supported by substantial evidence,
and the ALJ did not err by discounting any contrary opinions of Dr. Kondapaneni. Accordingly,
this objection fails for many of the same reasons stated above.
In conclusion, this Court agrees with the Magistrate Judge that, under the applicable
substantial evidence standard, set forth at page 11 of the R&R, the ALJ’s determination in this
0matter is within the “zone of choice” accorded to the ALJ.
Accordingly, the Court ACCEPTS and ADOPTS the February 22, 2012 R&R (Docket
Entry No. 12).
IT IS ORDERED that Plaintiff’s motion for remand (Docket Entry No. 10) is DENIED.
IT IS FURTHER ORDERED that the Commissioner’s motion for summary judgment
(Docket Entry No. 11) is GRANTED and this Court hereby AFFIRMS the Commissioner’s

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decision.
IT IS SO ORDERED.

S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: March 27, 2012
I hereby certify that a copy of the foregoing document was served upon counsel of record on
March 27, 2012, by electronic and/or ordinary mail.
S/Jennifer Hernandez
Case Manager

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