McKenzie v. Social Security, Commissioner of

Filing 29

ORDER accepting 27 Report and Recommendation, granting 23 defendant's Motion for Summary Judgment and denying 25 plaintiff's motion for summary judgment. Signed by District Judge George Caram Steeh (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CHERIE L. McKENZIE,
Plaintiff,
Case No. 13-CV-11272
HON. GEORGE CARAM STEEH

vs.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
____________________________/

ORDER ACCEPTING MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION (Doc. 27), GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT (Doc. 23) AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (Doc. 25)
Plaintiff Cherie McKenzie seeks judicial review of the Commissioner of Social
Security’s denial of her application for social security disability benefits and
supplemental security income benefits. The parties filed cross-motions for summary
judgment which this court referred to Magistrate Judge Charles E. Binder for a report
and recommendation. The magistrate judge has now issued his report and
recommendation that plaintiff’s motion for summary judgment be denied and the
Commissioner’s motion be granted. Plaintiff timely filed her objections. Because the
court is convinced that substantial evidence supported the decision of the Administrative
Law Judge (“ALJ”), the magistrate judge’s report and recommendation will be adopted
and the plaintiff’s objections will be overruled as set forth below.

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FACTUAL BACKGROUND
In her application for disability benefits and supplemental security income
benefits, plaintiff alleged she had been unable to work since May 9, 2006, due to
scoliosis of her back, knee problems, anxiety, severe headaches, joint pain, and
asthma. At the time of the administrative hearing, plaintiff, a high school graduate, was
35-years old. From 1996 to 2000, she worked as a scale operator. Following knee
surgery in 2000, plaintiff worked as a retail manager and then as a cashier until 2006.
Plaintiff underwent both a physical and psychiatric consultative examination. Both
examinations showed that plaintiff’s self-professed extreme symptoms were not
supported by the evidence. The ALJ determined that plaintiff’s residual functional
capacity was restricted to a range of light work providing a sit-stand option in a clean air
environment. He further restricted plaintiff to simple, low stress jobs involving only
occasional interaction with the public, co-workers and supervisors. Based on this
residual functional capacity, plaintiff’s age and education, and work experience, the
vocation expert testified that there were a significant number of jobs that plaintiff could
perform with minimal vocational adjustment including unskilled bench assembly and
visual inspection and packaging jobs. Based on his testimony, plaintiff’s residual
functional capacity, and other relevant considerations, the ALJ determined that plaintiff
was capable of adjusting to a significant number of job opportunities and thus, was not
disabled.
STANDARD OF REVIEW
The standard of review to be employed by the court when examining a report and
recommendation is set forth in 28 U.S.C. § 636. This court “shall make a de novo
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determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). This court
“may accept, reject or modify, in whole or in part, the findings or recommendations
made by the magistrate.” Id. A district court may affirm, modify, or reverse the
Commissioner’s decision, with or without remand. 42 U.S.C. § 405(g). Findings of fact
by the Commissioner are conclusive if supported by substantial evidence. Id. The court
must affirm the decision if it is “based on [an appropriate] legal standard and is
supported by substantial evidence in the record as a whole.” Studaway v. Sec’y of
Health and Human Servs., 815 F. 2d 1074,1076 (6th Cir. 1987). Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotations
marks and citations omitted). The court “must defer to an agency’s decision even if
there is substantial evidence in the record that would have supported an opposite
conclusion, so long as substantial evidence supports the conclusion reached by the
ALJ.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003) (internal
quotation marks and citations omitted).
Once an ALJ determines that a claimant does not possess the residual
functional capacity to perform his or her past relevant work, the burden shifts to the
Commissioner “to show that plaintiff possesses the capacity to perform other substantial
gainful activity that exists in the national economy.” Varley v. Sec’y of Health and
Human Servs., 820 F.2d 777, 779 (6th Cir. 1987). The Commissioner may rely on a
vocational expert’s testimony in response to a hypothetical question to meet this
burden. Id. “In order for a vocational expert’s testimony in response to a hypothetical
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question to serve as substantial evidence in support of the conclusion that a claimant
can perform other work, the question must accurately portray a claimant’s physical and
mental impairments.” Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 516 (6th Cir. 2010).
ANALYSIS
1.

The ALJ Did Not Err in Not Ordering Additional Medical Evidence
Plaintiff alleges that because she was not represented by counsel, the ALJ

should have ordered x-rays of her knee and otherwise obtained a medical assessment
of her physical residual functional capacity by a medical professional. In support of this
argument, plaintiff relies on Lashley v. Sec’y of Health & Human Servs., 708 F.2d 1048
(6th Cir. 1983). In that case, the Sixth Circuit held that where a claimant appears
without counsel and has a medical condition that limits his ability to present his case,
the “‘ALJ has a duty to exercise a heightened level of care and assume a more active
role’ in the proceedings.” Id. at 1051 (citations omitted). In Lashley, the Sixth Circuit
found that the pro se claimant did not receive a full and fair hearing where the ALJ
conducted only a perfunctory hearing and did not adequately question the 59-year old
claimant, who had only a fifth-grade education and had suffered two debilitating strokes.
Id. at 1049. The Sixth Circuit found that the manner in which the ALJ conducted the
administrative hearing failed to accommodate the claimant’s obvious confusion and
inability to present his case, and thus, deprived the claimant of the opportunity to
establish his limitations. Id. at 1052. In this case, by contrast, plaintiff does not allege
any infirmity in her ability to present her claim at the hearing nor does she allege any
fault in the manner in which the ALJ posed questions to her about her disability.
The facts in this case are akin to those presented in Wilson v. Comm’r of Soc.
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Sec., 280 F. App’x 456 (6th Cir. 2008). In Wilkins, the Sixth Circuit held that although
the claimant was not represented by counsel, the ALJ owed no heightened duty to
develop the record as was the case in Lashley, as no special circumstances suggested
that claimant was unable to present her case to the ALJ. Id. at 459. Absent special
circumstances, “the claimant bears the ultimate burden of proving disability.” Id. The
claimant here resembles the Wilson claimant. Although she represented herself, she
was a 35-year old high school graduate and the hearing transcript discloses that she
grasped the proceedings and adequately presented her case to the ALJ.
Even if the ALJ owed claimant a heightened duty of care in conducting the
administrative hearing, such a duty would not require him to undertake the tasks outside
the administrative courtroom that plaintiff urges here. Significantly, plaintiff does not
allege that her knee had ever been x-rayed and thus, the ALJ should have obtained
already existing medical records. Rather, she alleges that the ALJ should have ordered
the examination in the first place. Lashley stands for the proposition that where a
claimant appears pro se and is unable to adequately represent himself, the ALJ has a
special duty to use extra care in his administrative courtroom to ensure that the claimant
receives a fair hearing. Nothing in Lashley requires the ALJ to conduct an independent
investigation of a claimant’s medical condition outside the courtroom. Lashley, 708 F.2d
at 1051 (“the administrative law judge must not become a partisan and assume the role
of counsel.”).
The ALJ considered medical evidence plaintiff submitted including records from
her general practitioner and chiropractor, emergency room visits, and psychological
evaluations and counseling, but noted that “[t]he medical evidence of record does not
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contain a medical assessment of the claimant’s physical residual functional capacity by
a medical professional.” [Tr. 25]. Plaintiff argues that the ALJ should have obtained
such a medical assessment on his own. While the law is well settled that the ALJ has a
general duty “to investigate the facts and develop the arguments both for an against
granting benefits,” Sims v. Apfel, 530 U.S. 103, 111 (2000), it is the claimant who bears
the burden of proof as the existence and severity of the limitations caused by her
impairments. Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 545 (6th Cir. 2007).
In determining plaintiff’s residual functional capacity, the ALJ considered
plaintiff’s testimony, reports of the State agency medical consultant, physical and
psychiatric consultative examinations, and other treating, examining, and non-examining
medical sources. The ALJ has discretion to order a consultive examination, Brown v.
Sec’y of Health & Human Servs., 911 F.2d 731, 1990 WL 121472, at *4 (6th Cir. 1990)
(unpublished table decision), but the ALJ’s ultimate residual functional capacity finding
must have the support of substantial evidence in the administrative record. Smith v.
Comm’r of Soc. Sec., 482 F.3d 873, 877 (6th Cir. 2007). Moreover, “[t]he Social
Security Act instructs that the ALJ - not a physician - ultimately determines the
claimant’s [residual functional capacity.]” Coldiron v. Comm’r of Soc. Sec., 391 F. App’x
435, 439 (6th Cir. 2010) (citing 42 U.S.C. § 423(d)(5)(B)). The ALJ has discretion to
seek additional evidence of disability and opinions from medical experts, 20 C.F.R. §§
416.917, 416.927(f)(2)(iii), but it is not an abuse of discretion for the ALJ to decline to
order additional testing where there is “no reason to believe testing would reveal any
significant physical limitations.” Hammonds v. Comm’r of Soc. Sec., No. 2:10-cv-121,
2011 WL 3328394, at *8 (E.D. Tenn. July 22, 2011). In this case, the ALJ considered
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medical evidence from multiple sources as well as plaintiff’s own testimony. Plaintiff
has not shown that additional medical evidence was necessary for the ALJ to make his
determinations.
2.

The Magistrate Judge Did Not Err in Considering Plaintiff’s Failure to Seek
Medical Treatment in Determining Plaintiff’s Credibility
Plaintiff argues that the ALJ erred because he drew a negative inference from

her failure to receive medical treatment without considering her lack of health insurance.
In his decision, the ALJ noted that the plaintiff’s testimony as to the severity of her
disabilities was not credible, based in part, on the fact that plaintiff only sought treatment
from a general practitioner and chiropractor. He stated that “[i]f her impairments caused
as much pain and limitations as the claimant described, one would expect the claimant
to pursue more aggressive treatment.” [Tr. 24]. He further stated that her claims as to
the severity of her pain were so extreme as to be implausible, were not supported by
the weak medical evidence submitted, and plaintiff’s statements during her psychiatric
and physical examinations as to the effectiveness of her psychiatric medications were
inconsistent [Tr. 24-25]. In addition to the weak medical evidence submitted, at the
administrative hearing, plaintiff testified that she was taking no pain medication other
than applying an “Icy-Hot” to her back, and that she had tried Advil a couple of times but
it did not work. [Tr. 50].
Plaintiff relies on S.S.R. 96-7p which provides that “the adjudicator must not draw
any inferences about an individual’s symptoms and their functional effects from a failure
to seek or pursue regular medical treatment without first considering any explanations
that the individual may provide, or other information in the case record, that may explain
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infrequent or irregular medical visits or failure to seek medical treatment.” At the
administrative hearing, plaintiff testified that she did not seek continuous medical
treatment due to her inability to pay. [Tr. 43, 50].
The Sixth Circuit has held that although poverty stands as a legal justification for
the failure to receive treatment for a disabling condition, as a general rule, the ALJ may
“consider[] the absence of contemporaneous evidence in evaluating Claimant’s
credibility.” Strong v. Comm’r Soc. Sec., 88 F. App’x 841, 846 (6th Cir. 2004). The
Sixth Circuit has held that, “[i]n the ordinary course, when a claimant alleges pain so
severe as to be disabling, there is a reasonable expectation that the claimant will seek
examination or treatment. A failure to do so may cast doubt on a claimant’s assertions
of disabling pain.” Id. Here, plaintiff twice sought care in the emergency room, sought
care from a psychiatrist, a general practitioner, and a chiropractor. Given plaintiff’s
history of seeking some medical care, it was not improper for the ALJ to consider her
failure to seek more aggressive treatment when her symptoms were not relieved. Even
if the ALJ did err in considering plaintiff’s failure to seek more aggressive treatment for
her back as evidence that her testimony as to the severity of her pain was not credible,
the error was harmless as substantial evidence supports his decision.
3.

The Magistrate Judge Did Not Err by Failing To Consider Plaintiff’s Claim that the
Administrative Record Was Incomplete
Finally, plaintiff objects that the magistrate judge did not consider her claim that

the administrative record was incomplete. On November 14, 2012, the Appeals Council
denied her request for review of the ALJ’s decision. Thereafter, plaintiff sought to
reopen her case and to have new evidence considered which consisted of physician
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reports dated in 2012 and December, 2011. On March 18, 2013, the Appeals Council
denied her request to reopen the case finding that the new medical evidence she
submitted all postdated the decision of the ALJ issued on September 23, 2011. [Tr. 1].
The Appeals Council may only consider new and material evidence “where it relates to
the period on or before the date of the administrative law judge hearing decision.” 20
C.F.R. § 404.970(b). Plaintiff now claims it was error for the Commissioner to fail to
include the new medical evidence she submitted as part of the administrative record.
Even if the Commissioner should have included those medical reports, the error is
harmless as there is no dispute they all postdated the denial of her request for disability
benefits and thus, could not possibly bear on the outcome.
CONCLUSION
For the reasons stated above, IT IS ORDERED that the court ACCEPTS and
ADOPTS the magistrate judge’s report and recommendation (Doc. 27).
IT IS FURTHER ORDERED that the Commissioner’s motion for summary
judgment (Doc. 23) is GRANTED and plaintiff’s motion for summary judgment (Doc. 25)
is DENIED.
IT IS FURTHER ORDERED that plaintiff’s objections (Doc. 28) are
OVERRULED. Judgment shall enter for the Commissioner.
IT IS SO ORDERED.
Dated: September 25, 2014
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
September 25, 2014, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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