Cole v. Social Security, Commissioner of

Filing 26

ORDER Adopting 21 Report and Recommendation, Denying 16 Motion for Summary Judgment filed by Jeffrey Cole, and Granting 20 Motion for Summary Judgment filed by Commissioner of Social Security. Signed by District Judge David M. Lawson. (SPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JEFFREY COLE,
Plaintiff,
v.

Case Number 13-13422
Honorable David M. Lawson
Magistrate Judge David R. Grand

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________/
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION, DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT, GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT,
AFFIRMING THE FINDINGS OF THE COMMISSIONER, AND DISMISSING
COMPLAINT
Plaintiff Jeffrey Cole filed the present action on August 9, 2013 seeking review of the
Commissioner’s decision denying the plaintiff’s claims for disability insurance benefits under Title
II of the Social Security Act and for supplemental security income under Title XVI of the Social
Security Act. The case was referred to United States Magistrate Judge David R. Grand under 28
U.S.C. § 636(b)(1)(B) and E.D. Mich. LR 72.1(b)(3). Thereafter, the plaintiff filed a motion for
summary judgement to reverse the decision of the Commissioner and remand the case with an order
for the administrative law judge (ALJ) to calculate and award benefits. The defendant filed a motion
for summary judgment requesting affirmance of the decision of the Commissioner. Magistrate
Judge Grand filed a report on July 31, 2014 recommending that the defendant’s motion for summary
judgment be granted, the plaintiff’s motion for summary judgment be denied, and the decision of
the Commissioner be affirmed. The plaintiff filed timely objections to the recommendation and the
defendant filed a response to the objections. This matter is now before the Court.

When a party files timely objections to a report and recommendation, the Court must “make
a de novo determination of those portions of the report or specified findings or recommendations
to which objection is made.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667
(1980); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This de novo review requires the
court to re-examine all of the relevant evidence previously reviewed by the magistrate judge in order
to determine whether the recommendation should be accepted, rejected, or modified in whole or in
part. 28 U.S.C. § 636(b)(1).
“The filing of objections provides the district court with the opportunity to consider the
specific contentions of the parties and to correct any errors immediately,” Walters, 638 F.2d at 950,
enabling the court “to focus attention on those issues — factual and legal — that are at the heart of
the parties’ dispute,” Thomas v. Arn, 474 U.S. 140, 147 (1985). As a result, “‘[o]nly those specific
objections to the magistrate’s report made to the district court will be preserved for appellate review;
making some objections but failing to raise others will not preserve all the objections a party may
have.’” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (quoting Smith v.
Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987)).
The Court has reviewed the file, the report and recommendation, and the plaintiff’s
objections and has made a de novo review of the administrative record in light of the parties’
submissions.
The record shows that the plaintiff, who is now 46 years old, filed his application for
disability insurance benefits on April 1, 2010, when he was 41. The plaintiff completed the tenth
grade, but he did not finish high school. From 1993 to 2005 he worked as a machine builder in the
automotive industry. The plaintiff last worked in June 2005 and stopped working when various

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physical impairments rendered him unable to perform his job as a machine builder. In the
application that is the subject of the present appeal, the plaintiff alleged a disability onset date of
August 21, 2009. The plaintiff has been diagnosed with blindness and keratitis in the right eye; right
elbow epicondylitis; pancreatitis; gout; depression; and a history of alcohol abuse now in remission.
However, the plaintiff does not take issue with any of the ALJ’s findings on his physical
impairments; he focuses solely on his mental impairments.
On April 21, 2010, the plaintiff filed his claim for disability benefits, alleging that he became
disabled on August 21, 2009. The plaintiff’s application was denied initially on January 3, 2011.
Cole timely filed a request for an administrative hearing, and on September 15, 2011, the plaintiff
appeared before ALJ David A. Mason, Jr. On October 4, 2011, ALJ Mason issued a written
decision in which he found the plaintiff not disabled. However, the Appeals Council granted Cole’s
request for review of the decision and remanded for a further hearing. On January 3, 2013, Cole
appeared and testified at a second hearing before ALJ Jerome B. Blum. On February 21, 2013, ALJ
Blum issued a written decision again finding that Cole was not disabled. On September 18, 2013,
the Appeals Council denied the plaintiff’s request for review of the second decision. Cole filed his
complaint seeking judicial review on August 9, 2013.
In the second decision, ALJ Blum reached the non-disability determination by applying the
five-step sequential analysis prescribed by the Secretary in 20 C.F.R. §§ 404.1520, 416.920. He
found that the plaintiff had not engaged in substantial gainful activity since August 21, 2009 (step
one); the plaintiff suffered from blindness and keratitis in the right eye, right elbow epicondylitis,
pancreatitis, gout, depression, and a history of alcohol abuse now in remission, impairments which
were “severe” within the meaning of the Social Security Act (step two); none of these impairments

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alone or in combination met or equaled a listing in the regulations (step three); and the plaintiff
could not perform his previous work as an automotive industry machine builder, which was skilled
work requiring heavy exertional capacity the way the plaintiff performed the job (step four).
In applying the fifth step, the ALJ concluded that the plaintiff had the residual functional
capacity to perform unskilled, sedentary work, with the limitation that he cannot lift more than ten
pounds and would need to alternate between sitting and standing as he deemed necessary throughout
the workday. A vocational expert (VE) testified that the plaintiff would be able to perform
unskilled, sedentary “bench work.” The expert testified that there are around 2,000 such jobs in
southeast Michigan and 4,000 jobs statewide. Based on these findings and using Medical
Vocational Rule 204.00 as a framework, the ALJ concluded that the plaintiff was not disabled within
the meaning of the Social Security Act. Following the decision by the ALJ, the plaintiff appealed
to the Appeals Council, which denied the plaintiff’s request for review on September 18, 2013.
Plaintiff’s Objections
The plaintiff reiterated in his objections that he takes issue solely with the ALJ’s findings
as to his mental limitations and not the findings and conclusions regarding his physical abilities.
The plaintiff did not separately number his objections, but his argument centers on the contention
that the magistrate judge incorrectly concluded that substantial evidence supported the final
determination of the Commissioner. According to the plaintiff, the ALJ did not pose a complete and
accurate hypothetical question to the VE reflecting all of the plaintiff’s limitations; misconstrued
evidence that the plaintiff failed to seek mental health treatment as tending to show that he did not
have a mental illness; improperly disregarded other evidence tending to show that the plaintiff had
a serious mental condition; and gave undue weight to the opinion of a reviewing examiner who the

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plaintiff contends did not review the entire medical record. The defendant responds that (1) the
limitation to “unskilled work” encompassed by definition the particular limitations of “simple” and
“low stress” work cited by the plaintiff, and (2) the plaintiff’s argument that his failure to seek
mental health treatment is itself symptomatic of mental illness is belied by the fact that the plaintiff
repeatedly sought treatment for his physical ailments.
The plaintiff has the burden to prove that he is disabled and therefore entitled to benefits.
Boyes v. Sec’y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994); Abbott v. Sullivan, 905
F.2d 918, 923 (6th Cir. 1990).
Under 42 U.S.C. §§ 423(d)(1)(A) & (B) and 1382c(a)(3)(A) & (B), a person is disabled if
he is “unable to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment” and the impairment is so severe that the person “is not only unable
to do his previous work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful activity which exists in the national economy.” Further, “[a]
physical or mental impairment is an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.” 42 U.S.C. §§ 423(d)(1)(C), 1382c(a)(3)(D).
To determine disability, the Commissioner has prescribed the five-step process noted above
and set forth in 20 C.F.R. §§ 404.1520; 416.920. However, if the plaintiff has satisfied his burden
through the first four steps of the analytical process, the burden shifts to the Commissioner to
establish that the plaintiff possesses the residual functional capacity to perform other substantial
gainful activity. Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987). See
also Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980). “To meet this burden, there must be a

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finding supported by substantial evidence that plaintiff has the vocational qualifications to perform
specific jobs.” Varley, 820 F.2d at 779 (internal quotes and citations omitted).
The plaintiff contends that because the hypothetical question to the vocational expert did not
fully describe the plaintiff’s mental impairments, the VE’s opinion about the range of jobs available
in the economy that the plaintiff could perform was invalid. Therefore, the plaintiff reasons, the
Commissioner did not carry his burden of proof at step 5.
A. First Objection
In his first objection, the plaintiff argues that the magistrate judge improperly credited the
ALJ’s finding that it was “imperative that [the plaintiff] has never sought or received formal mental
health treatment,” in concluding that the plaintiff’s claim that he could not work due to his mental
problems was not credible. The plaintiff argues that Social Security Ruling 96-7p and the case law
of this circuit indicate that failure to seek treatment for mental health issues can itself be
symptomatic of mental health problems, and failure to seek treatment therefore should not be taken
as evidence that the plaintiff lacks mental issues.
It is true that the appellate decisions recognize that a claimant’s failure to seek or engage in
mental health treatment does not necessarily “evidence[] a tranquil mental state. For some mental
disorders, the very failure to seek treatment is simply another symptom of the disorder itself.” White
v. Comm’r of Soc. Sec., 572 F.3d 272, 283 (6th Cir. 2009). But that does not mean that the failure
to obtain mental health treatment is irrelevant to the disability determination. “A ‘reasonable mind’
might . . . find that the lack of treatment . . . [could] indicate[] an alleviation of . . . symptoms.” Id.
at 284. That appears to be the import of the ALJ’s gloss on the medical records. He did note that
the plaintiff “never sought or received formal mental health treatment.” Tr. 27. But that statement

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is followed by the observation that the plaintiff saw a variety of physicians, including his primary
care doctor, who did not find a need to render treatment for depression. Those observations by the
ALJ were appropriate to the determination whether the mental impairment was disabling. And as
the magistrate judge noted, no treating physician diagnosed a mental impairment or referred the
plaintiff to a mental health specialist for treatment. See R&R at 4.
B. Second Objection
In his second objection, the plaintiff argues that the magistrate judge improperly concluded
that the hypothetical question posed to the vocational expert by ALJ Blum took account of all his
mental limitations, because the ALJ directed the VE to consider a person able to perform “unskilled
work” and not, “simple, low-stress unskilled work.” The plaintiff contends that the state’s reviewing
examiner did not conclude that the plaintiff could perform any “unskilled work,” but only that he
could perform “simple” and “low-stress” work that was unskilled. The Court finds the magistrate
judge’s discussion of this issue thorough and accurate. See R&R at 11-14. As the magistrate judge
explained, in some cases the limitation to “unskilled work” may not adequately address a
concentration deficit. However, the reviewing court’s task is to examine the record as a whole and
determine if substantial evidence supports the ALJ’s RFC. The cases in this district have applied
that principle consistently. See, e.g., Lewicki v. Comm’r of Social Sec., No. 09-11844, 2010 WL
3905375, at *3 (E.D. Mich. Sept. 30, 2010); Latare v. Comm’r of Soc. Sec., No. 08-13022, 2009 WL
1044836, at *3 (E.D. Mich. Apr. 20, 2009); Bohn-Morton v. Comm’r of Soc. Sec., 389 F. Supp. 2d
804, 807 (E.D. Mich. 2005); see also Infantado v. Astrue, 263 F. App’x 469, 477 (6th Cir. 2008)
(concluding that the ALJ’s hypothetical question, while it “could have been more complete,”
adequately accounted for the plaintiff’s moderate mental impairments).

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In this case, the limitations in the hypothetical question to the VE are supported by Dr. Rom
Kriauciunas’s broader conclusions that the plaintiff could perform “simple, low-stress, unskilled
work” and perform “simple tasks on a sustained basis.” Tr. 158.
C. Third Objection
In his third objection, the plaintiff contends that the magistrate judge overlooked evidence
from a psychological examination dated December 21, 2010, in which the examiner noted that the
plaintiff reported sleep and appetite disruptions, he was poorly groomed and attired and had poor
self-esteem, he had “limited insight” and appeared to minimize his symptoms, his stream of mental
activity was often vague, he had problems recounting past events, he “described longstanding
obsessions and compulsions,” and his affect was blunted. The plaintiff contends that these
symptoms, along with a Global Assessment of Functioning score of 48, indicate “serious symptoms”
that were overlooked by the ALJ and the magistrate judge. The plaintiff further argues that the
examiners did not conclude that he could perform work in a “competitive”setting.
That argument ignores the reality, however, that there is other evidence in the record that
supports the ALJ’s RFC determination, as thoroughly discussed by the magistrate judge. When
deciding under 42 U.S.C. § 405(g) whether substantial evidence supports the ALJ’s decision, the
Court “may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of
credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984); see also Jordan v. Comm’r of
Soc. Sec., 548 F.3d 417, 422 (6th Cir. 2008); Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001).
Instead, the Court must uphold “the ALJ’s decision if there is ‘such relevant evidence as a
reasonable mind might accept’ as sufficient to support the ALJ’s conclusion.” Bass v. McMahon,
499 F.3d 506, 509 (6th Cir. 2007) (quoting Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001)

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(citation omitted)). “The substantial evidence standard is less exacting than the preponderance of
evidence standard.” Ibid. (citing Bell v. Comm’r of Soc. Sec., 105 F.3d 244, 246 (6th Cir. 1996).
If the ALJ’s decision is supported by substantial evidence, reversal would not be warranted even if
substantial evidence supports the opposite conclusion. Longworth v. Comm’r of Soc. Sec., 402 F.3d
591, 595 (6th Cir. 2005).
D. Fourth Objection
In his fourth objection, the plaintiff argues that the magistrate judge improperly credited the
conclusions of Dr. Edward Halperin, who conducted a review of the plaintiff’s “paper file” and
prepared a report dated December 15, 2012. The plaintiff contends that it is “unknown” what the
“paper file” on the plaintiff included. The plaintiff concedes, however, that Dr. Halperin’s report
stated that he did review the December 21, 2010 psychological report which the plaintiff cites in his
previous objection. The plaintiff argues that, as a non-treating reviewing physician, Dr. Halpern’s
opinion should have been accorded less weight than that of the treating examiners who prepared the
December 2010 report. That may be true, but the authors of that report, Shelly Galasso Bonanno
and Dr. Lisa Silver, did not state an opinion that was inconsistent with the ALJ’s RFC determination.
After a de novo review of the entire record and the materials submitted by the parties, the
Court concludes that the magistrate judge properly reviewed the administrative record and applied
the correct law in reaching his conclusion. The Court has considered all of the defendant’s
objections to the report and finds them to lack merit.
Accordingly, it is ORDERED that the magistrate judge’s report and recommendation [dkt.
#21] is ADOPTED.
It is further ORDERED that the plaintiff’s objections [dkt. #22] are OVERRULED.

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It is further ORDERED that the plaintiff’s motion for summary judgment [dkt. #16] is
DENIED.
It is further ORDERED that the defendant’s motion for summary judgment [dkt #20] is
GRANTED. The findings of the Commissioner are AFFIRMED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: April 9, 2015

PROOF 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 April 9, 2015.
s/Susan Pinkowski
SUSAN PINKOWSKI

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