Harrell v. Social Security, Commissioner of

Filing 22

Memorandum and Order Overruling Plaintiff's 18 Objections, Adopting the Magistrate Judge's 16 Report and Recommendation, Denying Plaintiff's 10 Motion for Summary Judgment, Granting Commissioner's 13 Motion for Summary Judgment, Affirming the Commissioner's Decision Denying Benefits and Dismissing Case. Signed by District Judge Avern Cohn. (SCha)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TAMIKA M. HARRELL,
Plaintiff,

Case No. 13-11161

vs.
HON. AVERN COHN
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
______________________________/
MEMORANDUM AND ORDER OVERRULING PLAINTIFF’S
OBJECTIONS (Doc. 18), ADOPTING THE
MAGISTRATE JUDGE’S REPORT AND
RECCOMENDATION (Doc. 16), DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT (Doc. 10), GRANTING
COMMISSIONER’S MOTION FOR SUMMARY
JUDGMENT (Doc. 13), AFFIRMING THE COMMISSIONER’S
DECISION DENYING BENEFITS AND DISMISSING CASE
I. INTRODUCTION
This is a Social Security case. Plaintiff Tamika M. Harrell (Harrell) appeals the
final decision of the Commissioner of Social Security (Commissioner) denying her
application for supplemental security income (SSI) benefits. Harrell claims that she has
been disabled since August 24, 2011, due to degenerative arthritis in the back and
knees, obesity, anxiety, peripheral vascular disease and gastroesophageal reflux
disease.
The parties filed cross motions for summary judgment. (Docs. 10, 13). The
motions were referred to a magistrate judge (MJ) for a report and recommendation
(MJRR). The MJ recommends that Harrell’s motion for summary judgment be denied
and that the Commissioner’s motion for summary judgment be granted. Harrell filed
timely objections to the MJRR (Doc. 18). The Commissioner filed a response (Doc. 21).

For the reasons that follow, the Court will adopt the MJRR, deny Harrell’s motion for
summary judgment (Doc. 10), grant the Commissioner’s motion for summary judgment
(Doc. 13), and affirm the Commissioner’s decision denying benefits.
II. BACKGROUND
A. Procedural History
Harrell filed an application for SSI benefits on August 24, 2011 claiming an onset
disability date of August 24, 2011. The Commissioner denied the application. Harrell
requested a hearing and appeared with counsel before an Administrative Law Judge
(ALJ). In addition, Pauline Pegram, a vocational expert (VE) offered testimony at the
hearing. In testifying, the VE responded to a hypothetical question posed by the ALJ,
opining that Harrell could perform available work in the economy.
The ALJ denied Harrell’s claim for benefits. The ALJ found that Harrell was
capable of performing available work. The Appeals Council denied Harrell’s request for
review rendering the decision of the Commissioner final. Harrell appeals the
Commissioner’s decision.
B. The ALJ’s Decision
Applying the five-step sequential analysis required in Social Security disability
cases, the ALJ found that Harrell had not engaged in substantial gainful activity since
applying for benefits. In the first four steps, the ALJ considers:
(1) whether the claimant is presently engaged in substantial gainful employment
(2) whether the claimant suffers from a severe impairment
(3) whether the impairment meets medically equals a “listed impairment”
(4) whether the claimant has the residual functional capacity (RFC) to perform
relevant past work.
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See 20 C.F.R. § 404.1520(a)-(f). If the ALJ concludes that the claimant’s impairments
prevent the claimant from engaging in past work, step five requires a determination
whether the claimant’s RFC, age, education and past work experience preclude the
claimant from performing other work available in the national economy. See id. at §
404.1520(g).
The Commissioner has the burden of proof only on “the fifth step, proving that
there is work available in the economy that the claimant can perform.” Her v. Comm’r of
Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999). To meet this burden, the Commissioner
must make a finding “supported by substantial evidence that [the claimant] has the
vocational qualifications to perform specific jobs.” Varley v. Sec’y of Health and Human
Servs., 820 F.2d 777, 779 (6th Cir. 1987). This “substantial evidence” may be in the
form of vocational expert testimony in response to a hypothetical question, “but only ‘if
the question accurately portrays [the claimant’s] individual physical and mental
impairments.’” Id. (citations omitted).
Here, the ALJ determined that Harrell suffered from the following severe
impairments: degenerative arthritis of the knees and ankles; obesity; affective disorder;
anxiety; and alcohol abuse in remission. (Doc. 8-2 at 14). However, the ALJ concluded
that Harrell did not have an impairment or combination of impairments that meets or
medically equals the severity of a compensable impairment.
Based on the evidence in the record and testimony at the hearing, the ALJ found
that Harrell has the residual functional capacity (RFC) to perform sedentary work with
the following additional limitations: simple, routine and repetitive tasks and ability to
alternate between sitting and standing at will. (Doc. 8-2 at 16). Applying this RFC, the

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ALJ concluded that Harrell is unable to perform any past relevant work. However,
considering Harrell’s age, education, work experience, and residual functional capacity,
the ALJ reasoned that there are jobs that exist in significant numbers in the national
economy that Harrell can perform. (Id. at 20). Consequently, the ALJ determined that
Harrell was not disabled, as defined by the Social Security Act.
C. The Parties’ Arguments on Summary Judgment
1. Harrell’s Arguments
Harrell makes three arguments in her motion for summary judgment. First,
Harrell contends that the ALJ failed to adequately discuss the effects of her obesity as
required by Social Security Ruling 02-1p (SSR 02-1p). Second, Harrell says that the
ALJ failed to properly account for her “moderate” limitations in concentration,
persistence and pace (CPP) in her RFC assessment. Finally, Harrell argues that the
ALJ failed to properly evaluate the medical source opinion of Dr. Willie Pettiway (Dr.
Pettiway).
2. The Commissioner’s Arguments
The Commissioner’s motion for summary judgment argues that the decision
denying SSI benefits is supported by substantial evidence. The Commissioner asserts
that Harrell can perform a range of sedentary work, and thus is not disabled.
D. The MJRR
The MJRR concluded that Harrell’s motion for summary judgment should be
denied and the Commissioner’s motion for summary judgment should be granted. The
MJRR found substantial evidence supporting the Commissioner’s conclusion that
Harrell can perform available work in the economy. In so finding, the MJRR reasoned

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that the ALJ properly considered Harrell’s obesity and accurately portrayed Harrell’s
limitations in the hypothetical question posed to the VE. The MJRR rejected Harrell’s
assertion that there was medical evidence supporting her contention that she suffered
severe side effects from pain medications and needed to rest frequently throughout the
day. Finally, the MJRR rejected Dr. Pettiway’s opinion that Harrell is completely
disabled because, in the MJ’s opinion, Dr. Pettiway’s conclusion was contradicted by
the substantial evidence in the record.
III. STANDARD OF REVIEW
A. Objections to MJRR
A district court must conduct a de novo review of the parts of a MJRR to which a
party objects. 28 U.S.C. § 636(b)(1). “A judge of the court may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate
judge. The judge may also receive further evidence or recommit the matter to the
magistrate judge with instructions.” Id. The requirement that district judges with life
tenure conduct a de novo review and be the final arbiters of matters referred to a
magistrate judge is jurisdictional. United States v. Shami, 754 F.2d 670, 672 (6th Cir.
1985); Flournoy v. Marshall, 842 F.2d 875, 878 (6th Cir. 1987).
B. Commissioner’s Disability Determination
Judicial review of a Social Security disability benefits application is limited to
determining whether “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). A reviewing court
may not resolve conflicts in the evidence or decide questions of credibility. Brainard v.
Sec’y of HHS, 889 F.2d 679, 681 (6th Cir. 1989). Substantial evidence is “such relevant
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evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971). It is “more than a scintilla but less
than a preponderance.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 399 (1938).
“Substantial evidence exists when a reasonable mind could accept the evidence as
adequate to support the challenged conclusion, even if that evidence could support a
decision the other way.” Casey v. Sec’y of HHS, 987 F.2d 1230, 1233 (6th Cir. 1993);
Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601, 604 (6th Cir. 2009). The substantial
evidence standard is deferential and “presupposes that there is a zone of choice within
which the decisionmakers can go either way, without interference with the courts.”
Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986).
When determining whether the Commissioner’s decision is supported by
substantial evidence, the reviewing court must take into consideration the entire record
as a whole. Futernick v. Richardson, 484 F.2d 647, 649 (6th Cir. 1973). If the Appeals
Council declines to review the ALJ’s decision, the court’s review is limited to the record
and evidence before the ALJ, Cotton v. Sullivan, 2 F.3d 692, 696 (6th Cir. 1993),
regardless if the ALJ actually cited to the evidence. Walker v. Sec’y of HHS, 884 F.2d
241, 245 (6th Cir. 1989). Nonetheless, there is no requirement that the reviewing court
discuss all evidence in the record. Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496,
508 (6th Cir. 2006). Essentially, the court’s role is limited to search for substantial
evidence that 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.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).

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IV. ANALYSIS
Harrell repeats her three arguments discussed infra as objections to the MJRR.
As will be explained, the MJRR did not err in its rejection of Harrell’s arguments.
Therefore, Harrell’s objections will be overruled and the Commissioner’s decision
denying benefits will be affirmed.
A. Harrell’s Obesity
As explained, Harrell first argues that the ALJ improperly evaluated her obesity.
She is mistaken.
Harrell incorrectly argues that the ALJ did not consider her obesity in combination
with the effect it would have on her ability to perform meaningful work, as required by
SSR 02-1p. Harrell asserts that, because the ALJ determined that her obesity is a
severe impairment at step 2 of the sequential analysis, the ALJ should have discussed
Harrell’s obesity in each subsequent step. Harrell’s argument is without merit.
Social Security Ruling 02-1p informs, in part:
[W]e will not make assumptions about the severity or functional effects of
obesity combined with other impairments. Obesity in combination with
another impairment may or may not increase the severity or functional
limitations of the other impairment. We will evaluate each case based on
the information in the case record.
SSR 02-1P (S.S.A.), 2002 WL 34686281.
Here, the ALJ determined that Harrell’s obesity was a severe impairment and
recognized that it resulted in work-related functional limitations. The ALJ also
considered Harrell’s obesity and the impact it has on her ability to perform daily
activities. Harrell fails to show how the ALJ has not provided an adequate evaluation of
her obesity. As the Commissioner argues, a determination of severe obesity does not

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automatically result in functional limitations. Severe obesity, in combination with other
impairments, may serve as a “risk factor” in developing or complicating other
impairments. Social Security Ruling 02-1p directs:
Neither do descriptive terms for levels of obesity (e.g., “severe,” “extreme,”
or “morbid” obesity) establish whether obesity is or is not a “severe”
impairment for disability program purposes. Rather, we will do an
individualized assessment of the impact of obesity on an individual's
functioning when deciding whether the impairment is severe.
Id.
Per the regulations, obesity does not necessarily impact other
impairments and must be evaluated on a case-by-case basis. As the Sixth
Circuit stated in Bledsoe v. Barnhart, 165 F. Appr’x 408, 412 (6th Cir. 2008), “[i]t
is a mischaracterization to suggest that Social Security Ruling 02-1p offers any
particular mode of analysis for obese disability claims.” Here, the record shows
that the ALJ considered Harrell’s obesity in accordance with SSR 02-1p. The
ALJ discussed Harrell’s obesity and noted that “the combination of bilateral knee
arthritis, non-severe back pain and obesity have been taken into account and
accounted for in the RFC set forth above.” (Doc. 8-2 at 18). The ALJ’s ultimate
decision denying benefits was based on substantial evidence, taking into account
Harrell’s obesity. Therefore, Harrell’s objection to the MJRR on June 27, 2014 is
without merit.
B. Harrell’s RFC Assessment
Next, as explained, Harrell takes issue with the ALJ’s RFC assessment.
Like Harrell’s first argument, this does not advance her case. The ALJ properly
accounted for Harrell’s moderate impairment in concentration, persistence, or

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pace (CPP) by applying the “special technique” described in 10 C.F.R. §
416.920a. At step 3 of the sequential evaluation process, the ALJ determined
that Harrell’s affective disorder and anxiety did not meet or medically equal a
listed impairment. As a result, the ALJ found that Harrell had moderate
impairment limitations and limited her to simple, routine and repetitive work.
Harrell fails to show that the ALJ erred in this determination. As the
Commissioner correctly asserts, “[d]ecisions in this district reflect the conclusion
that a moderate impairment in concentration, persistence, and pace does not
necessarily preclude simple, routine, unskilled work.” Lewicki v. Comm’r of Soc.
Sec., 2010 WL 3905375 at *2; See also Latarte v. Comm'r of Soc. Sec., 2009 WL
1044836, at *3 (E.D.Mich.2009). Here, the ALJ reviewed Harrell’s medical
record as a whole and determined that she did not receive much treatment for
her psychological issues. Thus, the ALJ relied on the mental status examination
provided by a consultative psychologist. The consultative psychologist
determined that Harrell was capable of “relatively simple work-type activities,
remembering and executing a several step repetitive procedure on a sustained
basis, with little in the way of independent judgment or decision-making
required.” The ALJ did not err in relying on this evidence.
The ALJ also relied on the hypothetical posed to the VE in determining
that Harrell’s moderate limitations in CPP limited her to simple, routine, unskilled
work. In Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 516 (6th Cir. 2010), the
court held that, “[i]n order for a vocational expert’s testimony in response to a
hypothetical question to serve as substantial evidence in support of the

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conclusion that a claimant can perform work, the question must accurately
portray a claimant’s physical and mental impairments.”
Here, the ALJ posed accurate hypotheticals to the VE, in light of the lack
of psychiatric evidence concerning Harrell’s physical and mental impairments—
specifically her depression and adjustment disorder. In Taylor v. Comm’r of Soc.
Sec., 2011 WL 2682682, at *7 (E.D. Mich. May 17, 2011), another court in this
district held that “[t]here is no bright-line rule requiring remand whenever an
ALJ's hypothetical includes a limitation of ‘unskilled work’ but excludes a
moderate limitation in concentration. Rather, this Court must look at the record
as a whole and determine if substantial evidence supports the ALJ's decision.”
The ALJ considered medical records, the consultative psychologist’s opinion and
the hypothetical posed to the VE to support his decision. Accordingly, Harrell’s
argument is without merit. The ALJ’s decision on July 27, 2012 is supported by
substantial evidence, and, the MJRR is therefore correct in its analysis.
C. ALJ’s Evaluation of Dr. Pettiway’s Opinion
Finally, Harrell contends that the ALJ improperly rejected Dr. Pettiway’s
opinion. The Court disagrees. The ALJ properly evaluated Dr. Pettiway’s
medical opinion and ultimately attributed it little weight. Dr. Pettiway completed a
RFC assessment and concluded that Harrell could not sit for more than two
hours in an eight hour work day. Dr. Pettiway also concluded that Harrell would
miss only one day of work per month. The ALJ gave little weight to Dr. Pettiway’s
opinion because Dr. Pettiway did not provide substantive reasons for his
conclusions.

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Harrell argues that the ALJ failed to follow the treating physician rule, and
failed to provide supportive evidence for discounting Dr. Pettiway’s medical
opinion. In Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997),
the court held that “[d]iscounting credibility to a certain degree is appropriate
where an ALJ finds contradictions among the medical reports, claimant's
testimony, and other evidence.” Harrell argues that Dr. Pettiway was her treating
physician for two years and had knowledge of pain complaints and medication
management. However, the ALJ correctly concluded that Dr. Pettiway did not
provide support for concluding Harrell could not sit for more than two hours or
would miss only one day per month.
The ALJ has the authority to discount and question the credibility of a
treating physician if the ALJ provides “good reasons” for doing so. In Wilson v.
Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004), the Sixth Circuit
reasoned that, “[t]he regulation requires the agency to ‘give good reasons’ for not
giving weight to a treating physician in the context of a disability determination.
20 C.F.R. § 404.1527(d)(2) (2004).” Here, the ALJ found that Dr. Pettiway did
not provide relevant support for his conclusions, and his findings were
inconsistent with Harrell’s medical records. The ALJ’s decision is supported by
Harrell’s recent treatment records showing that she was receiving treatment for
the arthritis, had only minimal degenerative joint disease, and was relatively
healthy overall. Therefore, the ALJ rightfully rejected Dr. Pettiway’s findings, as
these findings are contrary to the most recent medical evidence in the record.

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Harrell’s argument that the ALJ did not satisfy the “good reasons”
requirement and failed to follow the treating physician rule does not withstand
scrutiny. The ALJ is not required to address each factor when weighing medical
opinions of treating physicians. An ALJ is authorized to determine if the treating
physician has opined a credible medical opinion. Walters, 127 F.3d at 531. The
Sixth Circuit has held that, “[a]n ALJ's findings based on the credibility of the
applicant are to be accorded great weight and deference, particularly since an
ALJ is charged with the duty of observing a witness's demeanor and credibility.”
Id. Here, as explained, the ALJ provided “good reasons” for rejecting Dr.
Pettiway’s medical opinion, and the ALJ’s credibility determinations are entitled to
deference. As such, there is no error in the MJRR’s conclusion that Dr.
Pettiway’s medical opinion is entitled to little weight.
V. CONCLUSION
For the reasons stated above,
(1) Harrell’s objections to the MJRR are OVERRULED;
(2) the MJRR is ADOPTED;
(3) Harrell’s motion for summary judgment is DENIED;
(4) the Commissioner’s motion for summary judgment is GRANTED;
(5) the Commissioner’s decision denying benefits is AFFIRMED; and
(6) this case is DISMISSED.
SO ORDERED.
S/Avern Cohn
UNITED STATES DISTRICT JUDGE
Dated: August 5, 2014
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Harrell v. Carolyn W. Colvin, Commissioner of Social Security
I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, August 5, 2014, by electronic and/or ordinary mail.

S/Sakne Chami
Case Manager, [phone]

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