Carl v. Social Security, Commissioner of

Filing 23

OPINION AND ORDER Adopting 21 Report and Recommendation, Denying 13 Motion for Summary Judgment filed by Barbara Jeanne Carl, Granting 19 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
BARBARA JEANNE CARL,
Plaintiff,

Case No. 13-10747

v.

Paul D. Borman
United States District Judge

COMMISSIONER OF
SOCIAL SECURITY,

R. Steven Whalen
United States Magistrate Judge

Defendant.
_________________________/

OPINION AND ORDER: (1) DENIES PLAINTIFF’S OBJECTIONS (ECF NO. 22); (2)
ADOPTS MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION (ECF NO. 21); (3)
DENIES PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 13); AND (4)
GRANTS DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 19)
Before the Court is Plaintiff’s Objections to Magistrate Judge R. Steven Whalen’s
February 28, 2014 Report and Recommendation. (ECF No. 22, Objections). Defendant
Commissioner did not file a response. 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, and grants the
Defendant Commissioner’s Motion for Summary.
I. BACKGROUND
A.

Procedural 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. (ECF No. 21, Report and

Recommendation at 1-11). Briefly, the Plaintiff applied for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income (“SSI”) on April 8, 2010, alleging a disability onset
date of August 6, 2007. (Tr. 123-329, 130-34). Plaintiff’s application was denied and she
requested a hearing before an Administrative Law Judge (“ALJ”). The hearing was held on
August 11, 2011 before ALJ Paul Jones, Plaintiff was represented by counsel, and a Vocational
Expert (“VE”) testified at the hearing. (Tr. 25, 29-48, 48-52).
On September 23, 2011, the ALJ issued a written decision denying in part and granting in
part Plaintiff’s claims. (Tr. 12-21). The ALJ found that since August 6, 2007 (the date of
Plaintiff’s heart attack and alleged onset date of disability), Plaintiff has had the severe
impairments of: a “history of myocardial infarction; coronary artery disease, status post
revascularization; angina; headaches; tobacco abuse; anxiety disorder”. (Tr. 14). However, the
ALJ also found that those impairments or combination of impairments did not meet or medically
equal the severity of one of the listed impairments. (Tr. 16). Then the ALJ determined that, as
of her alleged onset date, Plaintiff had the residual functional capacity (“RFC”) to perform
unskilled, sedentary work as defined in 20 C.F.R. §§ 404.1567(a), 416.967(b) with the following
restrictions: “she can lift and carry 10 pounds occasionally; she can sit six hours, and stand and
or walk two hours, in an 8-hour workday; she is limited to performing simple, routine and
repetitive tasks.” (Tr. 17). The ALJ also determined that since August 6, 2007, Plaintiff had
been unable to perform any of her past relevant work but that prior to her birthday on January
17, 2010, there were jobs that existed in significant numbers in the “lower peninsula of
Michigan” that Plaintiff was capable of performing. Therefore, the ALJ found that Plaintiff was
not disabled between the dates of August 6, 2007 and January 16, 2010. (Tr. 17-20). However,

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by “direct application of Medical-Vocational Rule 201.14” the ALJ also determined that her
inability to perform work at a greater exertional level than sedentary rendered her disabled as of
her 50th birthday, January 17, 2010. (Tr. 19-21, see also SSR 82-41). On December 18, 2012,
the Appeals Counsel denied her request for review. (Tr. 1-3). Thereafter, on February 21, 2013,
Plaintiff filed her complaint in this Court seeking judicial review of the Defendant
Commissioner’s decision. (ECF No. 1).
The parties filed cross motions for summary judgment which were referred for decision
to Magistrate Judge Whalen. (ECF Nos. 13 & 19). On February 28, 2014, the Magistrate Judge
issued a Report and Recommendation which recommended denying Plaintiff’s motion for
summary judgment and granting Defendant’s motion for summary judgment. (ECF No. 21).
The Magistrate Judge found that there was substantial evidence in the record to support: (1) the
ALJ’s treatment of the medical opinions of Plaintiff’s treating physicians, Dr. Kleiber and Dr.
Gibson, (2) the ALJ’s assessment of Plaintiff’s credibility, and (3) the fact that the job numbers
cited by the VE constituted a “significant number”. (ECF No. 21). Thereafter, Plaintiff filed her
Objections to the Report and Recommendation. (ECF No. 22).
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 and made pursuant to proper legal standards. See 42 U.S.C. § 405(g) (“The
findings of the Commissioner of Social Security as to any fact, if supported by substantial

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evidence, shall be conclusive ... ”); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.
2007). Substantial evidence is “‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Kyle v. Comm’r of Soc. Sec., 609 F.3d 847, 854 (6th Cir.
2010) (quoting Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601, 604 (6th Cir. 2009)); see also
McGlothin v. Comm’r of Soc. Sec., 299 F. App’x 516, 522 (6th Cir. 2008) (recognizing that
substantial evidence is “more than a scintilla of evidence but less than a preponderance; it is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”)
(internal quotations omitted). “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.’” Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir.
2007) (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, 486 F.3d at 247.
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
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

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Servs., 932 F.2d 505, 509 (6th Cir. 1991).
III. ANALYSIS
Plaintiff asserts in her objections that she “incorporates” all the arguments previously set
forth in her motion for summary judgment and reply brief. (ECF No. 22 at 2). As an initial
matter, the Court rejects Plaintiff’s attempt to use her objections as a conduit to generally
reassert every argument set forth in her motion for summary judgment. As noted supra, “[t]he
parties have the duty to pinpoint those portions of the magistrate's report that the district court
must specially consider” lest the initial reference to the magistrate judge becomes a useless
formality.

Mira, 806 F.2d at 637 (internal quotation marks and citation omitted); Howard, 932

F.2d at 509.
Plaintiff also appears to set forth two specific objections: (1) that the Magistrate Judge
erred in concluding that the ALJ properly analyzed the opinions of Plaintiff’s treating physicians,
Dr. Kleiber and Dr. Gibson; and (2) the Magistrate Judge erred by “conveniently blam[ing
Plaintiff] for smoking and thus discount[ed] her complaints” and credibility. (Pl.’s Obj. at 8).
A.

Treating Physicians’ Opinions
Plaintiff argues that the Magistrate Judge erred in concluding that the ALJ properly

limited the weight given to Plaintiff’s treating physicians, G. Kleiber, D.O. and Miriam Gibson,
M.D., because the ALJ improperly substituted his own medical opinion for that of a professional.
Plaintiff also argues that the Magistrate erred because the ALJ improperly found Plaintiff’s
ability to perform a number of daily activities inconsistent with the doctors’ opinions.
The Court notes that an opinion of a limitation or disability given by a treating source is
entitled to deference and “[i]f the opinion of the claimant’s treating physician is well supported

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by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent
with the other substantial evidence in [the] record, it must be given controlling weight.” Hensley
v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009) (internal quotation marks omitted) (citing Wilson v.
Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004)). The regulations provide that an ALJ
will give controlling weight to a treating source’s opinion under the treating-physician rule only
if it is both well supported by medically acceptable data and it is consistent with other substantial
evidence. Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375 (6th Cir. 2013); see 20 C.F.R. §
404.1527(c)(2).
However, when an ALJ determines that a treating physician’s opinion is not entitled to
“controlling weight” the inquiry does not stop. “[I]n all cases there remains a presumption,
albeit a rebuttable one, that the opinion of a treating physician is entitled to great deference, its
non-controlling status notwithstanding.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th
Cir. 2007) (citing SSR 96-2p (1996), 1996 WL 374188, at *4). “[T]he Commissioner imposes
on its decision makers a clear duty to “always give good reasons in our notice of determination
or decision for the weight we give [a] treating source’s opinion.” Cole v. Astrue, 661 F.3d 931,
937 (6th Cir. 2011). Further, those “good reasons must be ‘supported by the evidence in the case
record, and must be sufficiently specific to make clear to any subsequent reviewers the weight
the adjudicator gave to the treating source’s medical opinion and the reasons for that weight.’”
Id. (quoting SSR 96-2p (1996), 1996 WL 374188, at *5); see also Gayheart, 710 F.3d at 376
(citing same).
Here, the ALJ assigned “minimal weight” to the August 2011 assessment of Plaintiff’s
treating cardiologist, G. Kleiber, D.O., and gave limited weight to the July, 2011 assessment by

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Plaintiff’s treating general practitioner, Miriam Gibson, M.D. (Tr. 18). Plaintiff argues that the
ALJ impermissibly relied upon his own medical analysis to override the opinions of her treating
doctors because he did not rely upon the opinion of a different consulting or non-examining
doctor to “override” the opinions of Kleiber and Gibson. Plaintiff’s argument fails.
In the instant action, the ALJ explained his decision to assign minimal weight to Dr.
Kleiber’s August 2011 assessment of Plaintiff was due to the fact the assessment was not
supported by Dr. Kleiber’s own progress notes or diagnostic studies. (Tr. 18). The ALJ also
properly supported his decision to assign limited weight to Dr. Gibson’s July 2011 assessment
because it, too, was inconsistent with both her own notes, the medical record, and Plaintiff’s own
testimony. (Tr. 18). The Magistrate Judge accurately noted that “the treating analysis of Drs.
Kleiber and Gibson’s assessments is well supported and explained”. (Report and
Recommendation, at 15).
Plaintiff’s objection appears merely to restate the findings of Drs. Kleiber and Gibson
without contradicting or addressing the ALJ’s inconsistent findings. In determining Plaintiff’s
RFC, the ALJ took into account the totality of the record and reflected Plaintiff’s inability to do
more than sedentary work since her cardiac event. The ALJ also discounted the treating source
opinions where they contradicted the “rather exhaustive and repeated cardiac workups [that]
reflected relatively benign findings” or the doctors’ own progress notes. (Tr. 18). Further, the
record is full of citations to Plaintiff’s continued full-time care of her three young grandchildren
and there is no indication that she was unable to perform a wide variety of regular activities.
This evidence contradicts both Dr. Gibson’s and Dr. Kleiber’s opinions that Plaintiff would be
unable to perform even low stress work. (Tr. 18).

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There is nothing in the record evidencing that the ALJ was substituting his own medical
analysis for that of the doctors’ opinions. Rather, the ALJ set forth detailed “good reasons” for
limiting the weight assigned to the doctors’ opinions because both opinions were internally
inconsistent and not supported by the medical evidence or Plaintiff’s own testimony.
Plaintiff also contends that the Magistrate Judge did not “did not appear to truly
understand the holding” in the Sixth Circuit’s decision in Gayheart despite referencing the
opinion in his Report and Recommendation. (Pl.’s Obj. at 3). The Court notes that the
Magistrate Judge accurately cited to Gayheart for the principle that an ALJ’s failure to provide
“good reasons” for discounting the weight of a treating-source opinion is reversible error, and
that those “good reasons” must be specific enough in the record to make it clear to later
reviewers “the weight the adjudicator gave to the treating source’s medical opinion and the
reasons for that weight.” Gayheart, 710 F.3d at 376 (citation omitted). The Court finds that the
Magistrate Judge accurately cited to Gayheart for the general principles of the treating source
rule. This was not error.
To the extent Plaintiff is attempting to argue that it was error for the Magistrate Judge
(and the ALJ) to find that the opinions of Plaintiff’s treating physicians were inconsistent with
the record of her daily activities, that argument is also without basis. In Gayheart, the Sixth
Circuit found an “insufficient basis” for limiting a treating source opinion when the ALJ relied
on the claimant’s testimony regarding his ability to complete certain daily activities when in fact,
there was no evidence that any of those daily activities were done on a “sustained basis”.
Gayheart, 710 F.3d at 378. The Sixth Circuit characterized the evidence relied upon by the ALJ
in Gayheart as “isolated pieces of the record” and “either taken out of context or are offset by

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other examples in the record.” Id. In the instant action, unlike in Gayheart, Plaintiff cannot
evidence (and does not attempt to argue) that the ALJ focused only on “isolated pieces of the
record” or that the ALJ misconstrued her testimony that she “performed self-care tasks, ironed
and laundered light clothing, completed basic household cleaning chores, drove at least short
distances, shopped, ran errands, attended to family finances, watched television and sewed.”
(Tr. 18). Indeed, there is no dispute that Plaintiff took care of her multiple, young grandchildren
who lived with her. (Tr. 18). Moreover, she was described in August 2010 by Dr. Kleiber as
“quite active”. (Tr. 410). Plaintiff also testified that she had no help with any of the household
chores although her husband “tries” to help. (Tr. 45). In summary, Plaintiff fails to contradict
the ALJ’s conclusions regarding her ability to complete a plethora of daily activities, and the
medical record (which consistently noted that she took care of her grandchildren or her disabled
son, and had full range of motion) is consistent with the ALJ’s findings and conclusions.
Accordingly, Plaintiff’s objection is denied.
B.

Plaintiff’s Credibility

Plaintiff also claims the Magistrate Judge erred in finding the ALJ’s credibility
determination was not supported by substantial evidence because the ALJ cited her continued
smoking in support of that credibility determination.
First, the Court notes that 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.

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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 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., No. 09-5773, 2011 WL 180789, at *4 (6th Cir. Jan. 19, 2011)
(citing Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001)).
In this action, the ALJ set forth a variety of reasons (not just the fact Plaintiff continues to
smoke) for discounting the Plaintiff’s credibility, citing the medical tests that did not “unveil
debilitating pathology”, Plaintiff’s ability to “ambulate well without assistive device” and her
“functional full range of motion.” (Tr. 17-18). The ALJ also noted that her neurological
functions were intact and that the medical record did not support her “expressed level of
fatigue”. (Id.). The ALJ also cited the inconsistency between Plaintiff’s testimony that she was
not very active and her testimony (and evidence in the medical record) that she continued to care
for her young grandchildren and perform a variety of self care tasks and activities. (Tr. 18).
Given this record, the Court finds that there is substantial evidence to support the ALJ’s
credibility determination.
The Court also rejects Plaintiff’s argument that she cannot be denied benefits when she
failed to quit smoking because there nothing in the record indicating that “she could have
returned to work even if she had ceased smoking.” (Pl.’s Obj. at 7). As the Magistrate Judge
accurately noted, Plaintiff’s reliance on Fraley v. Secretary of H.H.S., 733 F.2d 437, 440 (6th
Cir. 1984) is misplaced because Fraley held (in relevant part) that a claimant’s credibility cannot
be discounted when she fails to follow a prescribed treatment when there is no evidence that the

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proposed treatment “would restore claimant’s ability to work.” Fraley, 733 F.2d at 440. In the
instant case, the ALJ held that Plaintiff was disabled prior to her 50th birthday without regard to
her continued smoking. Further, there is at least one notation in the medical record linking
Plaintiff’s continued use of smoking with the exacerbation of heart spasms, “Her problem is she
can’t get off the cigarettes, we talked to her about this at length. She is cutting down but she
hasn’t stopped. We tried to explain how they cause spasm and how this will cause more
problems down the road. ... Overall I am pleased with her course except for the smoking.” (Tr.
352). Therefore, as the Magistrate Judge explained, “to the extent that Plaintiff’s claims of
limitation can be credited, she had been told by at least one treating source that smoking
exacerbated those limitations”. (Report and Recommendation, at 17).
Therefore, while Plaintiff argues that the Magistrate Judge and the ALJ “penalize[d]” her
for her failure to quit smoking, a clear reading of the Report and Recommendation as well as the
ALJ’s decision evidences no such penalty. Therefore, the Court denies Plaintiff’s objection.
IV. CONCLUSION
For all these reasons, the Court DENIES Plaintiff’s Objections (ECF No. 22), ADOPTS
the Report and Recommendation (ECF No. 21); DENIES Plaintiff’s Motion for Summary
Judgment (ECF No. 13); and GRANTS Defendant’s Motion for Summary Judgment (ECF No.
19).
IT IS SO ORDERED.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: September 2, 2014
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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 September 2, 2014.

s/Deborah Tofil
Case Manager

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