Autry v. Social Security, Commissioner of
Filing
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OPINION AND ORDER Adopting 17 Report and Recommendation Denying 11 Motion to Remand filed by Melissa Autry, Granting 15 Motion for Summary Judgment filed by Social Security, Commissioner of. Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MELISSA RYAN AUTRY,
Case No. 13-15009
Plaintiff,
Paul D. Borman
United States District Judge
v.
COMMISSIONER OF
SOCIAL SECURITY,
R. Steven Whalen
United States Magistrate Judge
Defendant.
______________________________/
OPINION AND ORDER
(1) DENYING PLAINTIFF’S OBJECTIONS (ECF NO. 18); (2) ADOPTING THE
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION (ECF NO. 17);
(3) GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 15);
AND (4) DENYING PLAINTIFF’S MOTION FOR REMAND (ECF NO. 11)
On December 31, 2014, Magistrate Judge R. Steven Whalen issued a Report and
Recommendation addressing the outstanding motions in this action. (ECF No. 17). In the Report
and Recommendation, the Magistrate Judge suggests that this Court deny Plaintiff Melissa Ryan
Autry’s motion for remand. (ECF No. 11). Further, the Magistrate Judge recommends that this
Court grant Defendant Commissioner of Social Security’s motion for summary judgment. (ECF No.
15).
Now before the Court is Plaintiff’s Objections to the Magistrate Judge’s Report and
Recommendation. (ECF No. 18). 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 will deny Plaintiff’s Objections, adopt the Magistrate Judge’s Report and
Recommendation, deny Plaintiff’s motion for remand, and grant the Defendant’s motion for
summary judgment.
I. 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. 17, Report and Recommendation at
1-13). Briefly, the Plaintiff filed for Supplemental Security Income (“SSI”) and Disability Insurance
Benefits (“DIB”) on February 9, 2012, alleging disability due to depression, anxiety, and an
“impulse control disorder” with a disability onset date of April 1, 2011. (Tr. 147, 154, 171). One
year after her onset date in April 2012, Plaintiff suffered a seizure, and thereafter amended her
application to add seizures with spinal injury and memory problems. (Tr. 19, 57-60, 369).
Plaintiff’s applications for benefits were denied and she requested a hearing before an
Administrative Law Judge (“ALJ”). (Tr. 40). The hearing was held on October 23, 2012, before
ALJ Mary Ann Poulose; Plaintiff was represented by counsel, and a Vocational Expert (“VE”)
testified at the hearing. (Tr. 67-69). Plaintiff was 33 years old at the time of the administrative
hearing and left school before the end of 10th grade. She worked previously as a fast food worker,
babysitter, and telemarketer. (Tr. 45, 172, 177). Plaintiff lived in an apartment with her two
children, ages nine and six, one of whom she described as a special needs child. (Tr. 45-46).
On November 28, 2012, the ALJ issued a written decision finding that Plaintiff was not
disabled. (Tr. 13-37). The ALJ concluded in her decision that Plaintiff suffered from the severe
impairments of mild major depressive disorder, anxiety/panic disorder, seizure disorder, and obesity.
(Tr. 18-19). The ALJ also determined that the Plaintiff’s claims of low back pain and fibromyalgia
syndrome were not severe impairments under the Regulations. (Tr. 19-22). The ALJ then
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determined that the Plaintiff did not have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments, specifically the listings regarding
Affective disorders (12.04), and Anxiety-related disorders (12.06). (Tr. 22-24). The ALJ did find
that Plaintiff experienced mild impairment in activities of daily living, social functions, and
moderate limitation in “concentration, persistence, or pace”. (Tr. 23).
In light of the entire record, and specifically incorporating limitations to accommodate her
obesity, subjective complaints of low back pain, and her mental limitations due to mild depressive
disorder and anxiety, the ALJ determined that the Plaintiff had the residual functioning capacity
(“RFC”) to perform:
a full range of work at all exertional levels but with the following nonexertional
limitations: the claimant is limited to simple, routine, unskilled work activity with
occasional coworker interaction and no public interaction, that involves only
occasional climbing, crouching, crawling, stooping and kneeling, and that does not
expose the claimant to occupational hazards such as unprotected heights, moving
machinery, or commercial driving.
(Tr. 24, 24-31). The ALJ then concluded that considering Plaintiff’s age, education, work
experience, and residual functional capacity, and relying upon the testimony of the VE, a significant
number of jobs existed in the national economy that Plaintiff was capable of performing the
exertionally light, unskilled work of a housekeeper, mail room clerk, and office helper. (Tr. 32, 68).
Therefore, the ALJ determined that Plaintiff was not disabled. (Tr. 32-33).
Plaintiff appealed the ALJ’s decision. On October 28, 2013, the Appeals Council denied her
request for review, and the ALJ’s decision became the agency’s final decision. (Tr. 1-7).
Thereafter, Plaintiff timely filed the instant federal action seeking judicial review of the Defendant’s
decision. (ECF No. 1). Plaintiff filed a Motion for Remand pursuant to both the Fourth and Sixth
Sentence of 42 U.S.C. § 405(g). (ECF No. 11). Defendant also filed a Motion for Summary
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Judgment to which Plaintiff filed a response. (ECF Nos. 15, 16).
On December 31, 2014, the Magistrate Judge issued a Report and Recommendation which
recommended denying Plaintiff’s motion for remand and granting Defendant’s motion for summary
judgment.
(ECF No. 17).
Thereafter, Plaintiff filed her Objections to the Report and
Recommendation. (ECF No. 18).
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 Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th
Cir. 2007) (citing 42 U.S.C. § 405(h)); see also Cutlip v. Sec’t of Health and Human Servs., 25 F.3d
284, 286 (1994) (“Judicial review of the Secretary’s decisions is limited to determining whether the
Secretary’s findings are supported by substantial evidence and whether the Secretary employed the
proper legal standards.”). 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
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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)).
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).
This Court does not “try the case de novo, nor resolve conflicts in the evidence, nor decide
questions of credibility.” Cutlip, 25 F.3d at 286. Indeed, “[i]t 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; see Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 542 (6th Cir. 2007) (providing that
the “ALJ’s credibility determinations about the claimant are to be given great weight, ‘particularly
since the ALJ is charged with observing the claimant’s demeanor and credibility.”) (citation
omitted)).
III. ANALYSIS
Plaintiff has set forth two enumerated objections to the Magistrate Judge’s Report and
Recommendation. The Court will address each in turn.
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A.
Objection Regarding Hypothetical Question Posed to the VE
Plaintiff first generally objects to the Magistrate Judge’s conclusion that the ALJ did not
err in by failing to include certain limitations in Plaintiff’s RFC and the hypothetical posed to the
VE. (Obj., at 1-2). More specifically, the Plaintiff appears to be arguing that the Magistrate
Judge erred in concluding that the ALJ’s hypothetical question and the ALJ’s residual functional
capacity properly reflected all of Plaintiff’s limitations. Plaintiff contends that Magistrate Judge,
similar to the ALJ, ignored portions of the record that substantiate and relate to Plaintiff’s
alleged physical limitations.
The Court first notes that Plaintiff’s objection is merely a recitation of the arguments that
Plaintiff presented to the Magistrate Judge and constitutes a general argument that the Magistrate
Judge came to the wrong conclusion. See Howard, 932 F.2d at 509. Regardless, the Court finds
that Plaintiff’s objection is without merit.
The Sixth Circuit has recently explained:
In order for a vocational expert's testimony in response to a hypothetical 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)]. It is reversible error for the ALJ to inadequately describe the
claimant's RFC. Id. at 516.
Blankenship v Comm’r of Soc. Sec., --- Fed. App’x ---, No. 14-2464, 2015 WL 5040223, at *8
(6th Cir., August 26, 2015). However, “when formulating a hypothetical question, an ALJ is
only required to incorporate those limitations he has deemed credible.” Gant v. Comm’r of Soc.
Sec., 372 F. App’x 582, 585 (6th Cir. 2010) (citing Stanley v. Sec’y of Health and Human Servs.,
39 F.3d 115, 118-19 (6th Cir. 1994)); see also Turcus v. Soc. Sec. Admin., 110 F. App’x 630, 633
(6th Cir. 2004) (“The ALJ is not obligated to include unsubstantiated complaints and restrictions
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in his hypothetical questions.”).
Here, Plaintiff argues that the Magistrate Judge and the ALJ ignored certain pertinent
objective evidence that supported her allegations of low back pain. Therefore, Plaintiff argues
that the ALJ’s RFC and her hypothetical to the VE were incomplete and the VE’s testimony
could not be considered substantial evidence upon which the ALJ could rely. To this end,
Plaintiff relies exclusively upon an MRI of Plaintiff’s lumbar spine from June 2012 which
showed mild degenerative changes at L4-L5 with “some disc desiccation and slight disc space
narrowing”, and mild to moderate degenerative changes at L5-S1 “with disc desiccation, disc
space narrowing and some reaction at the adjacent vertebral endplates”. (Tr. 343). Plaintiff
contends that these findings constituted an objective diagnostic test result that supported her
allegations of low back pain.
However, as the Magistrate Judge accurately concluded “the ALJ’s reasons of omitting a
number of the professed limitations from [the] hypothetical question and RFC are well
articulated and supported by the transcript.” (R&R, at 16). Indeed, the ALJ acknowledged all of
the objective test results regarding Plaintiff’s back in her decision. The ALJ noted that both the
dorsal and lumbar x-rays of her back were “negative”, and her physical examination in May
2012 showed she had symmetrical strength in her upper and lower extremities, her sensation was
intact, and her reflexes were active. (Tr. 19). The ALJ also noted the June 2012 MRI findings
and explained the “lumbar spine MRI merely showed a small broad based central disc herniation
at L5-S1 that did not appear large enough to cause significant pathology. A thoracic spine MRI
was essentially normal, showing only a small bu[lg]e of disc material at T7-T8. ” (Tr. 19).
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While the Plaintiff argues that her June 2012 MRI findings are objective medical findings
that support her complaints of lower back pain; the ALJ relied upon the radiologist’s diagnosis
or “impression” from that exact MRI in her decision. While true that the June 2012 MRI notes
that there is a herniation at L5-S1 and mild to moderate degenerative changes, the radiologist
opined that the findings only showed a “small broad-based central disc herniation at L5-S1
which does not appear to be large enough to cause significant pathology at this time.” (Tr. 343).
The ALJ did not misconstrue the record but in fact relied upon the diagnosis from the
radiologist. Further, the ALJ’s treatment of the June 2012 lumbar spine MRI was consistent and
supported by other facts in Plaintiff’s medical record, including Plaintiff’s neurologist’s,
Mohammed M. Al-Qasmi, M.D., interpretation of the same MRI, wherein he concluded that the
MRI showed “a very tiny broad-based central disk herniation at L5-S1 which does not appear to
be large enough to cause any significant pathology.” (Tr. 357). Further, during a physical
examination in August 2012, Plaintiff was able to heel and toe walk, squat and arise without
difficulty, and walk without a limp. (Tr. 466).
Plaintiff also argues that the ALJ erred in creating her RFC and in turn the hypothetical
posed to the VE by not relying upon a July 26, 2012 medical needs form authored by Gary
Tamez, D.O. and Jennifer Johnson, P.A. (Tr. 409-10). The July 2012 medical needs form set
forth that Plaintiff could only occasionally lift 10 pounds (but never more) and could only stand
or walk less than two hours a day and needed assistance with bathing, meal preparation,
shopping, laundry and housework. (Tr. 409-10). The ALJ declined to assign the form any
weight for the reason that the “medical evidence does not support the limitations marked”. (Tr.
22). The ALJ noted that “the form does not include objective findings or a narrative explanation
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regarding the rationale beyond these limitations, rendering the overall opinion not particularly
persuasive.” (Id.). The ALJ also noted that Dr. Tamez had only treated the Plaintiff once after
her seizure and that physical examination was normal. Moreover, Johnson’s notes evidenced
that Plaintiff had subjective complaints of tenderness “but objectively normal range of motion
and strength.” (Id.).
Plaintiff argues simply that the June 2012 MRI supported the restrictions set forth in the
medical needs statement. Even assuming that the June 2012 MRI offered support for the
medical needs statement, which on its face is a questionable contention, the ALJ articulated a
number of reasons that she gave no weight to the medical needs statement including the fact the
statement was cursory, and had no citation or narrative to any supporting medical evidence, the
fact that the statement provided that Plaintiff’s ability to work was noted to be dependent on
further “work-up” and pain management, and the fact that Dr. Tamez had only seen Plaintiff
once and her examination with Johnson revealed only subjective complaints of tenderness but
normal range of motion and strength. (Tr. 22). Plaintiff has not attempted to counter these
arguments and they remain well reasoned and persuasive.
Therefore, the Court finds that the ALJ’s reasons for omitting certain limitations from her
RFC are well articulated and supported by “substantial evidence” in the record. Further, the
Court notes that an ALJ’s decision cannot be reversed merely because there exists some other
evidence in the record that might support a different conclusion. See McClanahan v. Comm’r of
Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (“‘The findings of the Commissioner are not subject
to reversal merely because there exists in the record substantial evidence to support a different
conclusion ... This is so because there is a ‘zone of choice’ within which the Commissioner can
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act without the fear of court interference.’” (citation omitted)). Accordingly, Plaintiff’s
objection regarding the hypothetical posed to the VE is denied.1
B.
Objection Regarding Entitlement to Remand Pursuant to Sentence Six
Plaintiff also objects to the Magistrate Judge’s Report and Recommendation arguing that
he erred in finding that her medical records postdating the November 28, 2012 administrative
decision did not support a remand pursuant to Sentence Six of 42 U.S.C. § 405(g).
As correctly noted by the Magistrate Judge, a remand pursuant to Sentence Six allows a
district court to remand a case “for further administrative proceedings in light of the evidence, if
a claimant shows that the evidence is new and material, and that there was good cause for not
presenting it in the prior proceeding.” Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). The
plaintiff bears the burden to establish all three requirements. Id. Evidence is considered “new”
only if it was “not in existence or available to the claimant at the time of the administrative
proceeding.” Id. (citing Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990)). The evidence is
considered “material” only when there is “a reasonable probability that the Secretary would have
reached a different disposition of the disability claim if presented with the new evidence.” Id.
(citation omitted). Finally, a plaintiff can show “good cause” by demonstrating “a reasonable
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The Court notes Plaintiff makes passing reference to the ALJ’s treatment of the mental
impairment questionnaire completed by Plaintiff’s psychiatrist Dr. Kondapaneni and claims that
the ALJ “selectively cited” aspects of Dr. Kondapaneni’s records “and the R&R accepted this
appraoch [sic].” (Obj., at 5-6). The Court finds that this conclusory statement which lacks any
specific reference to the Report and Recommendation, analysis or citation to case law does not
constitute a proper objection and therefore declines to address it. See 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.”). Moreover, the Sixth Circuit has
“consistently” held that “arguments adverted to in only a perfunctory manner, are waived.”
Kuhn v. Washtenaw Cnty., 709 F.3d 612, 624 (6th Cir. 2013); see also Dillery v. City of
Sandusky, 398 F.3d 562, 569 (6th Cir. 2005).
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justification for the failure to acquire and present the evidence for inclusion in the hearing before
the ALJ.” Id. (citation omitted).
Here, Plaintiff argues that the Magistrate Judge erred in finding that her new evidence,
attached to her motion for remand, was not “material”. Plaintiff claims that the Magistrate Judge
erred in ignoring the “longitudinal nature of the medical evidence” which suggests that her back
condition began in May or June 2012 and continued to worsen until March 2013 when she
underwent two back surgeries.
Plaintiff’s argument is without merit. Plaintiff herself admits that “[c]ertainly Plaintiff’s
spinal abnormalities were not fully manifested prior to the ALJ hearing.” (Obj. at 7). Plaintiff
then contends without any case law or legal analysis that because the “short time frame
involved” the remand should be granted. The Court finds, however, that while Plaintiff’s
evidence does suggest that her condition continued to worsen after the November 2012
administrative decision, the new medical evidence is not relevant or material to her condition as
of November 2012. See Oliver v. Sec’y of Health and Human Servs., 804 F.2d 964, 966 (6th Cir.
1986) (“[c]laimant argues that the evidence shows his condition has worsened since the
Secretary’s decision was made. While this may be true, it does not affect the Secretary’s 1983
decision.”); see also Wyatt v. Sec’y of Health and Hum. Servs., 974 F.2d 680, 685 (6th Cir. 1992)
(“Evidence of a subsequent deterioration or change in condition after the administrative hearing
is deemed immaterial.”). Plaintiff has failed to show that the ALJ would have reached a
different decision regarding Plaintiff’s back pain in November 2012 given the new evidence,
especially because the new evidence provides that Plaintiff’s acute back pain arose some two
months after the administrative decision. (See ECF No. 11, Ex. 1, at 8-11, 56, 61). As the
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Magistrate Judge properly noted, where a claimant’s condition has worsened since the
administrative decision, the proper remedy is to initiate a new claim for benefits rather than seek
a Sentence Six remand. See Sizemore v. Sec’y of Health & Human Servs., 825 F.2d 709, 712
(6th Cir. 1988).
Accordingly, the Court denies Plaintiff’s objection and finds that her request for a
Sentence Six remand was properly denied by the Magistrate Judge.
IV. CONCLUSION
For all these reasons, the Court DENIES Plaintiff’s Objection (ECF No. 18), ADOPTS
the Report and Recommendation (ECF No. 17), DENIES Plaintiff’s Motion for Remand (ECF
No. 11), and GRANTS Defendant Commissioner’s Motion for Summary Judgment (ECF No.
15).
IT IS SO ORDERED.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: October 8, 2015
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 October 8, 2015.
s/Deborah Tofil
Case Manager
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