Flowers v. Social Security, Commissioner of

Filing 16

OPINION AND ORDER Adopting 13 Report and Recommendation Granting 11 Motion for Summary Judgment filed by Social Security, Commissioner of, Denying 7 Motion for Summary Judgment filed by Tina Flowers. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TINA FLOWERS,
Case No. 13-11457
Plaintiff,
Paul D. Borman
United States District Judge

v.

COMMISSIONER OF
SOCIAL SECURITY,

David R. Grand
United States Magistrate Judge

Defendant.
______________________________/
OPINION AND ORDER:
(1) DENYING PLAINTIFF’S OBJECTION (ECF NO. 14);
(2) ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION (ECF NO. 13);
(3) DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 7);
AND (4) GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT (ECF NO. 11)
On February 14, 2014, Magistrate Judge David R. Grand issued a Report and
Recommendation addressing the outstanding motions in this action. (ECF No. 13). In the
Report and Recommendation, the Magistrate Judge recommends that this Court deny Plaintiff
Tina Flowers’ motion for summary judgment. (ECF No. 7). Further, the Magistrate Judge
recommends that this Court grant Defendant’s motion for summary judgment. (ECF No. 11).
Now before the Court is Plaintiff’s Objection to the Magistrate Judge’s Report and
Recommendation. (ECF No. 14). Defendant also filed a response. (ECF No. 15). 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’s Motion for Summary
Judgment.
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. 13, Report and
Recommendation at 1-13). Briefly, the Plaintiff protectively filed for Supplemental Security
Income (“SSI”) on October 1, 2010, alleging a disability onset date of June 14, 2010. (Tr. 13).
Plaintiff’s application was denied and she requested a hearing before an Administrative Law
Judge (“ALJ”). (Tr. 13). The hearing was held on January 20, 2012, before ALJ Kevin W.
Fallis; Plaintiff was represented by counsel; a Vocational Expert (“VE”) testified at the hearing.
(Tr. 13).
On February 13, 2012, the ALJ issued a written decision denying Plaintiff’s claims
because she retained the capacity to perform a range of sedentary work with certain exertional
and non-exertional limitations. (Tr. 13-26). The ALJ found that Plaintiff had not engaged in any
substantial gainful activity since October 1, 2010. (Tr. 15). The ALJ also found that the
Plaintiff suffered from the severe impairments of “headaches, degenerative disc disease of the
cervical spine, mood disorder, cognitive disorder, left knee pain and vomiting”. (Tr. 15).
However, the ALJ found that while these impairments were “severe” they did not prevent all
work activity. (Tr. 15). The ALJ then found that the Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the listed

2

impairments. (Tr. 23-25). In light of the entire record, the ALJ determined that the Plaintiff had
the residual functioning capacity (“RFC”) to perform sedentary work as defined in 20 C.F.R. §
416.967(a):
except allowing person to sit or stand alternatively, provided this person is not off
task more than 10% of the work period. Occasional pushing or pulling with the
bilateral upper extremity; occasional operation of foot controls with the left lower
extremity. Never climb ladders, ropes or scaffolds; occasionally climb ramps or
stairs, balancing, stooping, knelling, crouching and crawling. Frequent bilateral
reaching and overhead reaching, bilateral handling objects and fingering. Avoid
all exposure to excessive vibration, use of moving machinery and exposure to
unprotected heights. Work is limited to simple, routine and repetitive tasks
performed in a work environment free of fast paced production requirements
involving only simple work-related decisions and routine work place changes.
Only occasional superficial interaction with the public and coworkers.
(Tr. 23). The ALJ also determined that Plaintiff was unable to perform any of her past relevant
work, but that a significant number of jobs existed in the national economy that Plaintiff was
capable of performing. Therefore, the ALJ determined that Plaintiff was not disabled. (Tr. 2526).
Plaintiff appealed this decision. On December 18, 2012, the Appeals Council 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 Grand. (ECF Nos. 7 & 11). On February 14, 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. 13).
The Magistrate Judge found that there was substantial evidence in the record to support the
ALJ’s RFC assessment and the ALJ properly weighed and addressed the opinion of Plaintiff’s

3

treating neurologist, Dr. Broder. (ECF No. 13). Thereafter, Plaintiff filed her Objection to the
Report and Recommendation and Defendant filed a response. (ECF Nos. 14 & 15).
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
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.

4

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
Servs., 932 F.2d 505, 509 (6th Cir. 1991).
III. ANALYSIS
Plaintiff objects to the Magistrate Judge’s Report and Recommendation arguing that the
Magistrate Judge failed to properly apply and enforce Social Security Ruling 96-2p and 20
C.F.R. § 416.927(c)(2) where the ALJ did not give “good reasons” for discounting Dr. Broder’s
medical opinion regarding Plaintiff’s restrictions and limitations. Specifically, Plaintiff argues
that the Magistrate Judge failed to properly analyze whether the ALJ set forth “good reasons” as
required by SSR 96-2p and that there was not substantial evidence supporting the ALJ’s decision
to omit the restrictions that Plaintiff “need to lie down at her discretion, need to be off task and
need to be absent more than twice a month” in the ALJ’s RFC assessment. (Pl.’s Obj. at 3, 7).
On August 8, 2011, Dr. Broder, Plaintiff’s treating neurologist, completed a Medical
Source Statement in which he opined that Plaintiff can sit for five hours, stand for four hours,
and walk for two hours in an eight-hour workday; needs to sit or stand, and lie down or recline at

5

her own discretion; is extremely limited in bending and stooping, can occasionally kneel, and
can frequently squat; can occasionally engage in simple grasping, pushing and pulling, and fine
manipulating; can frequently reach and reach above shoulder level; and can lift up to 10 pounds
occasionally and up to five pounds frequently. (Tr. 285-86). Dr. Broder further opined that
Plaintiff’s pain, fatigue, or other symptoms markedly interfere with her ability to understand,
remember and/or carry out instructions; maintain attention and concentration for extended
periods of time; and work on a sustained and continuous basis without an unreasonable number
and length or rest periods. (Tr. 286). Additionally, Dr. Broder found that Plaintiff’s pain and
fatigue, or other symptoms, would likely result in her missing three or more days of work in a
typical month. (Id.).
Despite Plaintiff’s attempts to construe the ALJ’s treatment of Dr. Broder’s opinion as a
wholesale rejection, the ALJ addressed Dr. Broder’s decision and “accept[ed] much of the
doctor’s statements in relation to [Plaintiff’s] ability to sit, stand and walk in an 8-hour day.”
(Tr. 21). Indeed, the ALJ’s RFC assessment reflects that the Plaintiff must be allowed to have a
sit and stand option. The ALJ did, however, discount Dr. Broder’s opinions regarding the
amount of time claimant would miss work in a typical month were “conclusory” and not
consistent with the overall record and “[a]s such his ‘conclusions’ are not accepted as
conclusive.” (Tr. 21).
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
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

6

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). When controlling weight is not accorded to a treating-source opinion, “then
the opinion is weighed based on the length, frequency, nature, and extent of the treatment
relationship, as well as the treating source’s area of speciality and the degree to which the
opinion is consistent with the record as a whole and is supported by relevant evidence”.
Gayheart, 710 F.3d at 376 (internal citations omitted). 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.’” Cole, 661 F.3d at 937 (quoting SSR 96-2p (1996), 1996 WL
374188, at *5); see also Gayheart, 710 F.3d at 376 (citing same). However, an ALJ need not set

7

forth an exhaustive “factor-by-factor” analysis as long as the ALJ gives “good reasons” for the
weight assigned to the treating source’s opinion. Francis v. Comm’r of Soc. Sec., 414 F. App’x
802, 805 (6th Cir. 2011). Where an ALJ fails to provide “good reasons”, a district court may
affirm the decision only if it finds the error was harmless. Wilson, 378 F.3d at 546-47.
Plaintiff asserts that the Magistrate Judge erred in finding that the ALJ gave good reasons
for discounting Dr. Broder’s opinion regarding Plaintiff’s restrictions and limitations. The Court
finds that the Magistrate Judge’s report sets forth a detailed and reasoned analysis of the ALJ’s
treatment of Dr. Broder’s opinion. (ECF No. 13, at 18-22). Indeed, the Magistrate Judge was
correct in noting that the Sixth Circuit has held that “[c]onclusory statements from physicians are
properly discounted by ALJs.” White v. Comm’r of Soc. Sec., 572 F.3d 272, 286 (6th Cir. 2009).
And as the ALJ observed, Dr. Broder failed to give any explanation for his conclusion that
Plaintiff would need to miss work three or more days a month due to her symptoms. (Tr. 20-21).
This finding was also supported by the internal inconsistency between Dr. Broder’s Medical
Source Opinion and Dr. Broder’s progress notes from May 2011, in which he noted that
Plaintiff’s headaches were “fairly well-controlled; and have improved since her previous
appointment earlier this year” and noting Plaintiff decreased her use of analgesics. (Tr. 19, 279).
Dr. Broder further noted in May 2011, that Plaintiff need not come in for a follow up
appointment, and directed she call in two weeks so he could determine whether any other
treatment was warranted. (Id.). Similarly, Dr. Broder’s September 2010 notes provide that
while the CT scan of Plaintiff’s neck showed a bulging disc at C4-C5 level, he found that she did
not have cervical radiculopathy. (Tr. 17, 24, 248-49, 251).
Here, Dr. Broder’s August 2011 opinion is at odds and not supported by his previous

8

opinions regarding Plaintiff’s progress and symptoms. The Court also notes there were no other
examinations by Dr. Broder between his May 2011 notes and his August 2011 Medical Source
Opinion. As accurately noted by the Magistrate Judge, an ALJ is not obligated to give weight to
a treating physician’s opinion when his or her treatment notes do not support such severe
limitations. Essary v. Comm’r of Soc. Sec., 114 F. App’x 663, 666-67 (6th Cir. 2004).
Further, the ALJ found that Dr. Broder’s opinion regarding Plaintiff’s need to miss three
or more days of work a month was not consistent with the overall medical record. This finding
is supported by the ALJ’s detailed recitation of Plaintiff’s medical record which showed: no
abnormalities, neuropathy or radiculopathy in her hands (Tr. 17, 24, 248-49, 251) and no
fracture, no sublaxation, no mal-alignment, and no soft tissue swelling in her neck as evidenced
in the September 2010 or October 2010 CT scans. (Tr. 16, 17, 24, 248-49, 251). Additionally,
this portion of Dr. Broder’s opinion was also contradicted by Dr. Bhangu’s January 2012
findings that Plaintiff’s neurological, sensory, and cerebral examinations were normal and
provided no mention of any neck pain.1 (Tr. 21, 334-35).
The Court notes that while the ALJ did not exhaustively provide a factor-by-factor
analysis regarding his rejection of this portion of Dr. Broder’s opinion, the Court finds that such
an analysis is not needed where the ALJ did determine that a portion of Dr. Broder’s opinion was

1

To the extent Plaintiff appears to argue that vomiting or nausea related or caused by her
headaches would have caused her to be absent from work three or more days per month, this
argument is without support in the record. Indeed, Plaintiff only complained of vomiting and
nausea as related to her headaches in a July 2010 follow-up appointment with her primary care
physician after her initial injury (Tr. 263) and then again in June 2011 as it related to a diagnosis
of gastritis. (Tr. 295). Plaintiff never mentioned these symptoms at any of her visits with Dr.
Broder and also did not mention these symptoms when she presented for treatment in April
2011, August 2010, or September 2010. (Tr. 258, 260, 294, 300).
9

without any support and also inconsistent with the record as a whole. See Francis, 414 F. App’x
at 805. Further, the Court recognizes that the ALJ acknowledged Dr. Broder’s speciality and
meticulously summarized each of Plaintiff’s visits with Dr. Broder as well as reciting all of
Plaintiff’s treatment history with great detail. (Tr. 16-24). Therefore, the Court finds that the
ALJ set forth “good reasons” for disregarding the portion of Dr. Broder’s opinion relating to
Plaintiff’s ability to miss work three or more time per month pursuant to SSR 96-2p and 20
C.F.R. § 416.927(c)(2).2
Plaintiff also argues that the ALJ erred in failing to give good reasons for discounting Dr.
Broder’s opinion in his Medical Source Opinion that Plaintiff needed to lie down or recline at
her own discretion. (Tr. 285). While the ALJ did specifically note the reason he discounted Dr.
Broder’s opinion that Plaintiff would miss three or more days of work per month, the ALJ did
not specifically address Dr. Broder’s opinion that Plaintiff needed to lie down at her discretion
throughout the day and did not include that limitation in his RFC assessment. (Tr. 21).
The Sixth Circuit has held that a failure to give good reasons can be deemed to be
‘harmless error if “(1) a treating source’s opinion is so patently deficient that the Commissioner
could not possibly credit it; (2) if the Commissioner adopts the opinion of the treating source or
makes findings consistent with the opinion; or (3) where the Commissioner has met the goal of
[the treating physician rule] ... even though she has not complied with the terms of the
regulation.” Cole, 661 F.3d at 940 (quoting Friend v. Comm’r of Soc. Sec., 375 F. App’x 543,

2

The Sixth Circuit has recognized that the numbering of the “treating physician rules”
recently changed. Therefore, effective as of March 26, 2012, section 416.927(d)(2) became
416.927(c)(2), and section 404.1527(d)(2) “the identically worded and interpreted rule” applying
to Federal Old-Age, Survivors and Disability Insurance – became 404.1527(c)(2).” JohnsonHunt v. Comm’r of Soc. Sec., 500 F. App’x 411, 417 n. 6 (6th Cir. 2012).
10

551 (6th Cir. 2010)). The Sixth Circuit has elaborated on the third circumstance stating that,
“[i]n the last of these circumstances, the procedural protections at the heart of the rule may be
met when the ‘supportability’ of a doctor’s opinion, or its consistency with other evidence in the
record, is indirectly attacked via an ALJ’s analysis of a physician’s other opinions or his analysis
of the claimant’s ailments.” Friend, 375 F. App’x at 551 (citation omitted) (emphasis in
original).
In the instant case, the ALJ did credit a portion of the Commissioner’s opinion while
discounting other portions. (Tr. 21). Therefore, it cannot be said that Dr. Broder’s opinion is so
“patently deficient” that the Commissioner could not credit it. See Cole, 661 F.3d at 940 (noting
that where an ALJ found the opinions of the treating source were sufficient as to the category of
diagnosis they could not be found to be “patently deficient”.). Further, while the ALJ did rely
upon a portion of Dr. Broder’s Medical Source Opinion, his opinion that she be able to lie down
at her discretion was not included in his RFC assessment, therefore the ALJ’s findings were not
consistent with this portion of his opinion. However, the Court finds that the ALJ’s treatment of
Dr. Broder’s opinion met the goal of § 416.927(c)(2) where that finding lacks consistency with
other evidence in the record and was indirectly attacked through the ALJ’s analysis of Plaintiff’s
ailments.
Indeed, the Court finds that the ALJ’s rationale for discounting Dr. Broder’s opinion
regarding the amount of time Plaintiff would miss in a typical month can be similarly applied to
the equally conclusory statement in Dr. Broder’s Medical Source Statement regarding Plaintiff’s
need to lie down at her discretion. First, and most obviously, Dr. Broder’s assessment that
Plaintiff needed to lie down at her discretion is as equally conclusive and lacking any

11

explanation. See White, 572 F.3d at 286; see also 20 C.F.R. § 416.927(c)(3) (“The more a
medical source presents relevant evidence to support an opinion, particularly medical signs and
laboratory findings, the more weight we will give that opinion.”). Additionally, Dr. Broder’s
opinion that Plaintiff must lie down at her discretion was not consistent with the overall record
for the same reasons Dr. Broder’s opinion that Plaintiff would miss more than three days of work
a month was inconsistent with the overall record. Notably, Dr. Broder’s last examination of
Plaintiff found that her headaches were fairly well-controlled, she was decreasing her
medications, and her neurological examination remained normal. (Tr. 19, 279). While Plaintiff
argues that this one progress note should not be the “focus” of finding inconsistencies in Dr.
Broder’s opinions, it appears that these notes from May 2011 summarizes more than half of Dr.
Broder’s interactions with Plaintiff and constitutes his last interaction with her before authoring
his Medical Source Statement. Again, the second opinion sought by Plaintiff with Dr. Bhangu,
in January 2012, is inconsistent with a finding that Plaintiff needs to lie down at her discretion,
where the medical opinion fails to make any mention of neck pain and notes that all of her
neurological, sensory, and cerebral examinations were normal. (Tr. 16, 334-36).
Finally, as the Magistrate Judge correctly noted, the ALJ found Plaintiff’s own testimony
regarding her symptoms and their severity not credible based on both her reported activities of
daily living, in addition to Plaintiff’s statement to medical providers, and the medical evidence.
(Report, at 17-18; Tr. 23-24). The ALJ noted that despite Plaintiff’s continued reporting of
headaches, her neurological examinations repeatedly showed no focal sensory or motor deficits.
(Tr. 24). Further, while Plaintiff complained that she suffered memory problems, she had no
problems with naming or repetition at her consultive examination and her recall was good. (Id.).

12

Finally, the ALJ noted that Plaintiff testified that she suffered consistently with vomiting, she
failed to complain of this symptom at the majority of her doctor appointments. (Id.). Therefore,
there was substantial evidence to support the ALJ’s credibility determination of Plaintiff and his
discounting of her testimony regarding her symptoms and their severity.
Therefore, the Court finds the ALJ’s failure to give good reasons for discounting Dr.
Broder’s conclusory opinion regarding Plaintiff’s need to lie down at her discretion constitutes
harmless error where the finding lacked consistency with other evidence in the record and was
indirectly attacked through the ALJ’s analysis of Plaintiff’s ailments. Accordingly, Plaintiff’s
objection as to the same is denied.
IV. CONCLUSION
For all the reasons set forth above, the Court denies Plaintiff’s Objection (ECF No. 14),
adopts the Report and Recommendation (ECF No. 13); denies Plaintiff’s Motion for Summary
Judgment (ECF No. 7); and grants Defendant’s Motion for Summary Judgment (ECF No. 11).
IT IS SO ORDERED.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: September 30, 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 September 30, 2014.

s/Deborah Tofil
Case Manager
13