Hiter v. Social Security, Commissioner of

Filing 20

OPINION AND ORDER Adopting 15 Report and Recommendation,Denying 11 Motion for Summary Judgment filed by Josiah Hiter, Granting 14 Motion for Summary Judgment filed by Social Security, Commissioner of. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOSIAH HITER,
Plaintiff,
v.

Case No. 11-14561
Paul D. Borman
United States District Judge

COMMISSIONER OF
SOCIAL SECURITY,

Charles E. Binder
United States Magistrate Judge

Defendant.
_________________________/
OPINION AND ORDER (1) DENYING PLAINTIFF’S OBJECTIONS; (2) ADOPTING
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION; (3) DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; AND (4) GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Plaintiff’s Objections to Magistrate Judge Binder’s
January 3, 2013 Report and Recommendation. (Dkt. No. 18, Objections). The Commissioner
filed a response to Plaintiff’s Objections. (Dkt. No. 19). Having conducted a de novo review of
the parts of the Magistrate Judge’s Report and Recommendation to which objections have been
filed pursuant to 28 U.S.C. § 636(b)(1), the Court denies Plaintiff’s Objections, adopts the
Magistrate Judge’s Report and Recommendation, denies Plaintiff’s Motion for Summary
Judgment, grants Defendant’s Motion for Summary Judgment, and affirms the findings of the
Commissioner.
I.

BACKGROUND
The Administrative Law Judge’s (“ALJ”) findings and the pertinent portions of the

Administrative Record are accurately and adequately set forth in the Magistrate Judge’s Report

and Recommendation and the Court adopts them here.1 (Dkt. No. 15, Report and
Recommendation at 6-14). Briefly, the Plaintiff, Josiah Hiter, filed the instant claim for
supplemental security income alleging he became unable to work on May 2, 2002. Plaintiff was
27 years old at the time of his most recent administrative hearing and alleged affective disorders
(including bipolar disorder) and asthma as reasons for disability. On December 2, 2010, the
ALJ, Patricia S. McKay, held that Plaintiff was not disabled. The Appeals Council denied
Plaintiff’s request for review on September 10, 2011.
Plaintiff filed this Complaint on October 17, 2011, challenging the denial of benefit.
Both parties filed motions for summary judgment which were referred for decision to Magistrate
Judge Binder. (Dkt. Nos. 11 & 14). The Magistrate Judge issued a Report and Recommendation
on January 3, 2013, recommending Plaintiff’s motion be denied, Defendant’s motion be granted
and affirming the findings of the Commissioner. (Dkt. No. 15). Plaintiff filed objections to the
Report and Recommendation that are currently before the Court (Dkt. No. 18) and Defendant
filed a response (Dkt. No. 19). For the reasons that follow, the Court DENIES Plaintiff’s

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The Court also recognizes that Plaintiff cites to and relies upon a letter sent by
Plaintiff’s mother to the Appeals Council after the ALJ’s decision and notes that Plaintiff
suffered multiple seizures on January 16, 2012. (See Pl.’s Br. at 5, 9; Pl.’s Obj. at 6, 10).
However, the “evidence submitted to the Appeals Council after the ALJ’s decision cannot be
considered part of the record for purposes of substantial evidence review.” Foster v. Halter, 279
F.3d 348, 357 (6th Cir. 2001). Additionally, it is clear that any medical episode that Plaintiff
suffered after the ALJ hearing and after the Appeals Council denied his Request for Review is
well outside the record. Further, Plaintiff has not argued or even addressed whether Plaintiff’s
more current medical issues constitutes “new evidence” for a sentence-six remand. See Hollon
v. Comm’r of Soc. Sec., 447 F.3d 477, 483 (6th Cir. 2006) (noting the “explicit” standards that a
plaintiff must establish for a sentence-six remand. First, that the evidence at issue is both “new”
and “material” and second, that there is “good cause for the failure to incorporate such evidence
into the record of a prior proceeding.”). Therefore, the Court declines to address or rely upon
this evidence.
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objections, ADOPTS the Magistrate Judge’s Report and Recommendation and AFFIRMS the
findings of the Commissioner.
II.

STANDARD OF REVIEW
Where a party has objected to portions of a Magistrate Judge’s Report and

Recommendation, the Court conducts a de novo review of those portions. Fed. R. Civ. P. 72(b);
Lyons v. Comm’r of Soc. Sec., 351 F. Supp. 2d 659, 661 (E.D. Mich. 2004). In reviewing the
findings of the ALJ, the Court is limited to determining whether those findings are supported by
substantial evidence. See 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence, shall be conclusive ... ”).
Substantial evidence includes any relevant evidence that “a reasonable mind might accept as
adequate to support a conclusion.” Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007)
(quoting Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001)). “If the
Commissioner’s decision is supported by substantial evidence, we must defer to that decision,
‘even if there is substantial evidence in the record that would have supported an opposite
conclusion.’” Id. (quoting Longworth v. Comm’r of Soc. Sec. Admin., 402 F.3d 591, 595 (6th
Cir. 2005)). “It is of course for the ALJ, and not the reviewing court, to evaluate the credibility
of witnesses, including that of the claimant.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247
(6th Cir. 2007).
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 non-specific objection, or one that merely

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reiterates arguments previously presented, does not adequately identify alleged errors on the part
of the magistrate judge and results in a duplication of effort on the part of the district court: “A
general objection to the entirety of the magistrate's report has the same effects as would a failure
to object. The district court's attention is not focused on any specific issues for review, thereby
making the initial reference to the magistrate useless.” Howard v. Sec'y of Health and Human
Servs., 932 F.2d 505, 509 (6th Cir. 1991). Specific objections enable the Court to focus on the
particular issues in contention. An “objection” that merely disagrees with a magistrate judge's
determination, “without explaining the source of the error,” is not considered a valid objection.
Id. 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.

ANALYSIS
Plaintiff first objects that the Magistrate Judge failed to find error on the part of the ALJ

who did not give controlling weight to Plaintiff’s therapist, a social worker named Robert
Bringman. (Pl.’s Obj. at 11). Plaintiff argues that the ALJ did not conduct the “requisite
analysis” in assessing the social worker’s opinion and the ALJ did not acknowledge that there
was a letter written by both the social worker and Dr. Sarva, Plaintiff’s psychiatrist. (Id. at 12).
First, as the Magistrate Judge and the ALJ correctly observed, a social worker is not
considered a “treating source” or other “acceptable medical source” entitled to “controlling
weight” pursuant to the regulations. See 20 CFR §§ 404.1513(d), 416.913(d). Rather, the
opinion of Bringman is an “other source” that the agency “may also use as evidence to show the

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severity of the claimant’s impairments and how it affects his ability to work.” Fowler v. Comm’r
of Soc. Sec., Slip Copy, 2013 WL 5372883, at *15 (E.D. Mich. Sept. 25, 2013) (internal
quotation marks removed, citing 20 C.F.R. §§ 404.1513(d), 416.913(d)). Plaintiff is correct that
SSR 06-03p provides that the opinions from those who are “not technically deemed ‘acceptable
medical sources’ under [the agency’s] rules are important and should be evaluated on key issues
such as impairment severity and functional effects.” SSR 06-03p. However, this does not mean
that an ALJ commits error by failing to consider an “other source” exactly as a treating source.
The Sixth Circuit has found no error where an ALJ failed to include any limitations noted by a
social worker because, “[a]lthough they may constitute other evidence of the claimant’s ability to
work, social workers are not acceptable medical sources under Social Security regulations.”
Payne v Comm’r of Soc. Sec., 402 Fed. App’x 109, 118-19 (6th Cir. 2010); see also Mulkey v.
Comm’r of Soc. Sec., 2011 WL 4528485, at *7 (W.D. Mich. June 14, 2011) (nothing that there is
no requirement that the ALJ articulate good reasons for his or her decision assigning specific
weight to the opinion of such a source), adopted by 2011 WL 4528479 (W.D. Mich. Sept. 29,
2011).
In the instant case, the ALJ expressly considered Bringman’s opinion but then discounted
it because it was not offered by a treating source under the regulations and it was also not
supported by the treatment records. (Tr. at 19-20). Further, Plaintiff has not pointed to any case
law or regulation that provides an ALJ must give controlling weight to an “other source” such as
Bringman. Therefore, Plaintiff’s argument that the ALJ failed to give Bringman’s opinion
controlling weight was error is without merit. Additionally, the Magistrate Judge accurately
determined that Bringman was not operating “in conjunction” with Dr. Sarva such that he could

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be found to be working “so closely with a doctor that the therapist’s treatment is merely an
extension of the doctor’s.” Ramirez v. Astrue, 803 F. Supp. 2d 1075, 1081 (C.D. Cal. 2011).
Finally, to the extent Plaintiff claims that the ALJ did not acknowledge the 2008 letter
co-signed by both Bringman and Dr. Sarva in which they opine that Plaintiff is “totally disabled”
this is not true. The ALJ did specifically reference the 2008 letter in her recitation of Plaintiff’s
medical evidence. (Tr. 17). Additionally, as the Magistrate Judge observed Dr. Sarva and
Bringman’s opinion that Plaintiff was “totally disabled” is not entitled to any particular weight
as “[i]t is well settled that the ultimate issue of disability is reserved to the Commissioner.” Kidd
v. Comm’r of Soc. Sec., 283 Fed. App’x 336, 341 (6th Cir. 2008).
Plaintiff next generally objects to the Magistrate Judge’s findings that the ALJ’s
credibility findings were supported by substantial evidence. This is the exact argument that
Plaintiff made in its motion for summary judgment. (Dkt. No. 11 at 10-16). Indeed, Plaintiff’s
objection is identical to the language in Plaintiff’s motion for summary judgment brief and also
incorporates Plaintiff’s previous arguments by reference to the same. (See Pl.’s Obj. at 13-14).
As explained supra, A non-specific objection, or one that merely reiterates arguments previously
presented, does not adequately identify alleged errors on the part of the magistrate judge and
results in a duplication of effort on the part of the district court. See Howard, 932 F.2d at 509
(6th Cir. 1991). Therefore, to the extent Plaintiff fails to identify any specific error with the
Magistrate Judge’s Report the Court will not readdress the entirety of Plaintiff’s arguments
regarding his credibility assessment on summary judgment.
To the extent that Plaintiff appears to be arguing that the Magistrate Judge erred in
assessing Plaintiff’s credibility assessment because the ALJ overstated Plaintiff’s daily activities,

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this objection is without merit. Plaintiff relies upon Oliver v. Comm’r of Soc. Sec., 2010 WL
1002618 (E.D. Mich. 2010) where a court held an ALJ overstated the plaintiff’s daily activities
and that the ALJ’s reliance on those activities was misplaced because the activities cited (making
simple meals, occasionally using a computer, performing limited self-care) were all activities
that could be performed intermittently “and do not require the sustained effort necessary for any
substantial sustained and regular employment.” Oliver, at *11 (quoting Hunter v. Comm’r of
Soc. Sec., 2006 WL 2092411, *3 (E.D. Mich. 2006)).
In the instant case, the ALJ relied upon the fact that Plaintiff testified that he would
sometimes spend all day on Facebook to support a conclusion that he could complete daily tasks
that were more than just intermittent and to cast doubt on his testimony to the contrary. (Tr. 1920). Whether or not the ALJ overstated some of Plaintiff’s daily activities, the Magistrate Judge
accurately noted that the ALJ also based her credibility assessment on the fact that Plaintiff’s
description of his symptoms was not consistent with the medical findings and the fact that
Plaintiff’s medical impairments had not required treatment beyond outpatient therapy and
medication since 2003 did not support a finding of disability. (See R&R at 20).
It is the in the province of the ALJ to make credibility assessments, not the Court.
Siterlet v. Sec’y of Health and Human Serv., 823 F.2d 918, 920 (6th Cir. 1987) (“A reviewing
court may not try the case de novo, nor resolve conflicts in the evidence nor decide questions of
credibility.”); see also Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012)
(harmless error analysis applies to credibility determinations); Cruse v. Comm’r of Soc. Sec., 502
F.3d 532, 542 (6th Cir. 2007) (holding “ALJ’s credibility determinations about the claimant are
to be given great weight, ‘particularly since the ALJ is charged with observing the claimant’s

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demeanor and credibility.’” (citation omitted)). Therefore, an ALJ’s credibility determination
will only be disturbed for a “compelling reason”. See Sims v. Comm’r of Soc. Sec., 09-5773,
2011 WL 180789, at *4 (6th Cir. Jan. 19, 2011) (citing Smith v. Halter, 307 F.3d 377, 379 (6th
Cir. 2001)).
Here, the ALJ had “substantial evidence” to support her credibility determination beyond
any alleged misconception of Plaintiff’s daily activities, specifically contradictions in Plaintiff’s
testimony regarding his memory and the testing by Dr. Sendi (Tr. 467), and also test results that
indicated Plaintiff might have been making a conscious effort to appear disturbed (Tr. at Id.), as
well as a modest treatment plan that had not included any treatment beyond outpatient therapy
and prescription medication since 2003 (Tr. at 370). Therefore, the ALJ had “substantial
evidence” on which to base her assessment such that the Court cannot reverse the decision
merely because there exists some other evidence that might support a different conclusion. See
McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006).
Finally, Plaintiff objects that the Magistrate Judge failed to address Plaintiff’s argument
regarding the ALJ’s finding that there were no side effects relative to Plaintiff’s medications.
Plaintiff admits that the words “side effects to medications” were not documented in the medical
record but claims that those side effects were actually reported as Plaintiff’s problems with
“being tired, lack of energy, weight gain, dry mouth, rashes, headaches, and nausea.” (Pl.’s Obj.
at 15). The Court first notes that the ALJ did not set forth an “opinion” regarding side effects
suffered by Plaintiff or lack thereof, but merely stated that Plaintiff’s progress notes did not set
forth any side effects suffered by Plaintiff. (Tr. 17). As Plaintiff admits, the medical records do
not specifically document any side effects this recitation observation was not in error. See

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Essary v. Comm’r of Soc. Sec., 114 Fed. App’x 662, 665-66 (6th Cir. 2004) (holding that an ALJ
did not err in finding that a claimant suffered no side effects from her medications, despite the
claimant’s testimony to the contrary when the claimant never reported side effects to her
physicians.).
Further, Plaintiff’s citations to the record for documentation of alleged side effects reveal
either Plaintiff’s self-reporting of side effects or notations in medical records that do not attribute
Plaintiff’s weight gain, feeling nauseated, or “sleeping a lot” to a side effect from medication.
(See Tr. 57, 62, 71, 180, 248, 332, 335, 347, 366, 380). There is one notation in the record that
Plaintiff suffered the following side effects: trembling hands, dry mouth, being tired and a lack
of sex drive. Yet, this lone note was from 2005, four years prior to the application date. (Tr.
369). Finally, the ALJ noted Plaintiff’s visit to his primary care physician in January 2009 when
he was diagnosed with nosebleeds and bronchial asthma, however, these symptoms were (again)
not attributed or connected in any way to the medication Plaintiff was prescribed. (See Tr. 17,
407).
Additionally, Plaintiff’s argument based on a list of potential side effects is unavailing
because there is nothing to connect this list of possible side effects to what Plaintiff actually
experienced. Further, to the extent Plaintiff relies upon his own testimony to substantiate alleged
side effects, the ALJ found his credibility lacking and therefore, could properly discount any
self-reported side effects. For these reasons, the Court denies Plaintiff’s objection regarding any
error by the ALJ in finding that Plaintiff did not suffer any side effects from his medication.
IV.

CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s Objections (Dkt. No. 18),

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ADOPTS the Magistrate Judge’s Report and Recommendation (Dkt. No. 15), (3) DENIES
Plaintiff’s Motion for Summary Judgment (Dkt. No. 11), and (4) GRANTS Defendant’s Motion
for Summary Judgment (Dkt. No. 14) and AFFIRMS the findings of the Commissioner.
IT IS SO ORDERED.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: March 10, 2014

CERTIFICATE 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 10, 2014.

s/Deborah Tofil
Case Manager

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