Miller v. Social Security, Commissioner of

Filing 18

ORDER accepting 16 Report and Recommendation, Denying 12 plaintiff's Motion for Summary Judgment and granting 14 defendant's Motion for Summary Judgment. Signed by District Judge George Caram Steeh (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DALE MILLER,
Plaintiff,

Case No. 13-12263
HON. GEORGE CARAM STEEH

vs.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
____________________________/
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (DOC. #
14), DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (DOC. # 12), AND
ACCEPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION (DOC. 16)
This matter is before the court on the parties’ cross-motions for summary
judgment upon judicial review of the denial by the Social Security Administration of
plaintiff Dale Miller’s application for disability insurance and supplemental security
income benefits. Miller alleges he is disabled due to debilitating conditions and pain in
his back, shoulder, and ankle; a bipolar disorder; and learning disabilities. The matter
was referred to Magistrate Judge Charles E. Binder who issued a Report and
Recommendation on June 4, 2014 recommending that defendant Commissioner’s
motion be granted, that Miller’s motion be denied, and that the findings of the
Commissioner be affirmed.
Miller filed his applications for benefits on December 7, 2010, claiming that he
had become disabled and unable to work on May 2, 2010, at age 51. Administrative
Law Judge (ALJ) Jerome B. Blum held a hearing and issued a decision on February 10,
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2012, finding that Miller retained the residual functional capacity to perform a limited
range of unskilled light work where he was not required to lift more than 15 pounds and
that allowed for a sit-stand option. The Appeals Council denied Miller’s request for
review on April 25, 2013. This decision became the Commissioner’s final decision.
An individual may obtain review of any final decision made after a hearing by the
Commissioner of Social Security by filing an action in federal district court. 42 U.S.C. §
405(g). The court may affirm, modify, or reverse the Commissioner’s decision, with or
without remand. Id. Findings of fact by the Commissioner are conclusive if supported
by substantial evidence. Id. The Commissioner’s decision must be affirmed if the
decision is supported by substantial evidence in the record and the Commissioner
applied the correct legal standard. Longworth v. Comm’r of Soc. Sec., 402 F.3d 591,
595 (6th Cir. 2005).
Plaintiff filed this action requesting review of the Commissioner’s decision. Both
parties subsequently filed motions for summary judgment. In coming to a
recommendation on the competing motions for summary judgment in favor of the
Commissioner, Magistrate Judge Binder found that the ALJ’s determinations regarding
plaintiff’s physical and mental functional capacities were supported by substantial
evidence in the record.
A party may file timely written objections to a magistrate judge’s proposed
findings and recommendations. 28 U.S.C. § 636(b)(1). “A judge of the court shall
make a de novo determination of those portions of a report or specified proposed
findings or recommendations to which objection is made.” Id. “A judge of the court

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may accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate.” Id.
Plaintiff’s objections to Magistrate Judge Binder’s Report and Recommendation
were filed June 12, 2014. Defendant Commissioner of Social Security did not file a
response. The court will address the objections in the order presented by plaintiff.
A.

Dr. Nair
Plaintiff first claims that the magistrate judge “brushed over” the testimony and

reports of his treating psychiatrist, Dr. Nair, and instead inappropriately relied on the
testimony and reports of consultative doctors who were not as familiar with his medical
history, such as consultative examiner Dr. Boneff.
Specifically, plaintiff asserts that the magistrate judge inappropriately relied on
Tr. 436, which he describes as a “form ‘check list’” that “hardly should be construed as
a thoughtful medical opinion from a doctor.” (Compl. 3). He also takes issue with the
magistrate judge’s reliance on the reports at Tr. 326 and 349 which assigned a global
assessment of functioning (GAF) score of 55. Miller claims that these reports are
immaterial because they are from October, 2009, and the disability did not occur until
December 7, 2010. He also asserts that the magistrate judge inaccurately depicted
another of Dr. Nair’s reports, ignored a report from October, 2011, and failed to
consider plaintiff’s inpatient psychiatric hospitalization from December, 2011.
As defendant pointed out in its motion for summary judgment, the ALJ gave
specific reasons for discounting the opinion of Dr. Nair, such as inconsistencies
between the doctor’s opinion concerning activities of daily living and the record as a
whole. Moreover, Dr. Nair’s GAF assessment is consistent with the ALJ’s
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determination, and Dr. Nair’s more restrictive limitations were not supported by medical
findings or test results. Concerning the plaintiff’s December 2011 hospitalization, this
was considered by the ALJ, who specifically discounted the GAF score associated with
that hospitalization, both because it was unsigned and because it was inconsistent with
the consistently documented scores in the range of 50 to 55. This objection does not
impact the court’s determination that substantial evidence supported the ALJ’s
conclusions on these issues.
B.

Left shoulder and neck conditions
In this objection, plaintiff contends that the magistrate judge “never addresses

why it is proper for the ALJ to find that the Plaintiff’s cervical or left shoulder issues are
non-severe impairments.” (Plaintiff’s objections at 4.) It appears that plaintiff is arguing
that the ALJ should have determined that his shoulder and neck conditions were more
severe than he did. He asserts that the ALJ committed legal error at step two of the
five-step disability analysis (which requires a determination on whether the impairment
or combination of impairments has a significant impact on the individual’s ability to
perform basic work activities).
The ALJ considered the plaintiff’s descriptions of his shoulder and neck
conditions, treatment history, accompanying pain and stiffness, and physical limitations.
The ALJ considered both Dr. Koneru’s examination and test reports and Dr. Beshara’s
disability determination explanation. The ALJ found plaintiff’s “musculoskeletal
impairments are not as severe as alleged,” that there were no documented limitations
associated with such impairments, and that the “claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are not credible to the
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extent they are inconsistent with the above residual functional capacity assessment.”
Page ID 47. The ALJ’s determination concerning the plaintiff’s impairments was
supported by both medical and non-medical information in the form of reports, tests,
and opinions, and the plaintiff’s own testimony. He then considered both the mental
and musculoskeletal impairments in coming to a determination that the plaintiff was
able to perform unskilled work requiring only light exertion with a specific limitation of no
lifting of over 15 pounds. It is clear that this determination was supported by substantial
evidence in the record.
C.

Plaintiff’s credibility
As noted above, the ALJ called into question the plaintiff’s credibility in relation to

his complaints that he was disabled by his neck and shoulder conditions. The ALJ
made such a finding in more than one area of his determination; for instance, in
discussing the poor results of the plaintiff’s WAIS-IV and WRAT-III tests administered
by the consultative examiner, the ALJ noted that “[t]he claimant’s poor effort on the test
is consistent with the underlying theme of this decision: the claimant has responded to
tests and questions with unsupported, inconsistent, and self-serving answers.” Page ID
48.
In plaintiff’s objection concerning the ALJ’s assessment of his credibility, plaintiff
asserts simply that “objective evidence” supports his asserted functional limitations.
Then, concerning his mental limitations, he asserts that he has experienced episodes of
decompensation of extended duration, citing various hospital stays.1 Plaintiff also

1

As noted in defendant’s motion for summary judgment, however, “repeated
episodes of decompensation, each of extended duration,” is defined by the Listings as
three episodes within one year, each lasting for at least two weeks. See 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 12.00(C)(4). The record does not contain any such evidence.
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asserts that the magistrate judge’s report and recommendation employs some
boilerplate language which does not apply to his case.
Whether or not the magistrate judge included some “boilerplate” language which
may or may not apply to this case, it is clear that the ALJ’s credibility assessment
specifically addressed the record in this matter and was supported by substantial
evidence. The ALJ carefully described inconsistencies between the record and
plaintiff’s allegations (see, e.g. Page ID 47). As noted above, the ALJ described
plaintiff’s credibility issues as a “theme” of his decision. This determination is peculiarly
within the province of the hearing officer. See Gooch v. Secretary of Health & Human
Servs., 833 F.2d 589, 592 (6th Cir. 1987). This court can find nothing within the record
to suggest that it was inaccurate.
Upon review of the record, the parties’ motions, the report and recommendation
of the magistrate judge, and the plaintiff’s objections to that report, the court concludes
that defendant’s motion for summary judgment shall be GRANTED, and that plaintiff’s
motion shall be DENIED, as recommended by the magistrate judge. Accordingly, for
the reasons stated by the magistrate judge, as well as those set forth herein, that
recommendation is hereby ACCEPTED by the court.
IT IS SO ORDERED.
Dated: August 18, 2014
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
August 18, 2014, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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