Rogers-Lee v. Social Security

Filing 18

ORDER accepting Report and Recommendation 15 overruling plaintiff's objections 16 , denying plaintiff's Motion for Summary Judgment 11 , granting defendant's Motion for Summary Judgment 13 and dismissing case. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SALLIE ROGERS-LEE,
CASE NO. 14-cv-11415
HONORABLE GEORGE CARAM STEEH

Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
/

OPINION AND ORDER ACCEPTING MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION (DOC. #15) OVERRULING PLAINTIFF’S
OBJECTIONS (DOC. #16), DENYING PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT (DOC. #11), GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT (DOC. # 13) AND DISMISSING CASE
Plaintiff appeals from the final decision of the Commissioner of Social Security
denying her application for disability insurance benefits (“DIB”) and supplemental security
income (“SSI”). This matter is before the court on the parties’ cross-motions for summary
judgment. The motions were referred to Magistrate Judge Anthony Patti for a report and
recommendation (“R&R”). The magistrate judge recommends that the court deny plaintiff’s
motion for summary judgment and grant defendant’s motion for summary judgment. (Doc.
#15). Plaintiff has filed objections to the magistrate judge’s R&R. (Doc. #16). For the
reasons that follow, the magistrate judge’s R&R will be accepted, plaintiff’s objections will
be overruled and his motion for summary judgment will be denied, defendant’s motion for
summary judgment will be granted, and this case will be dismissed.

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I. BACKGROUND
Plaintiff does not object to the magistrate judge’s recitation of the facts and
procedural history in the R&R. The court adopts and incorporates that portion of the R&R
in full without repeating it here. This opinion addresses plaintiff’s objections to the R&R.
II. LEGAL STANDARDS
A. Objections to Magistrate Judge’s R&R
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 may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate.”
Id.
B. Judicial Review Of ALJ’s Decision
Judicial review of a Social Security disability benefits application is limited to
determining whether “the commissioner has failed to apply the correct legal standards or
has made findings of fact unsupported by substantial evidence in the record.” Walters v.
Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). A reviewing court may not resolve
conflicts in the evidence or decide questions of credibility. Brainard v. Sec’y of HHS, 889
F.2d 679, 681 (6th Cir. 1989). 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).

It is “more than a scintilla but less than a

preponderance.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 399 (1938). “Substantial

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evidence exists when a reasonable mind could accept the evidence as adequate to support
the challenged conclusion, even if that evidence could support a decision the other way.”
Casey v. Sec’y of HHS, 987 F.2d 1230, 1233 (6th Cir. 1993); Lindsley v. Comm’r of Soc.
Sec., 560 F.3d 601, 604 (6th Cir. 2009). The substantial evidence standard is deferential
and “presupposes that there is a zone of choice within which the decisionmakers can go
either way, without interference with the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6th
Cir. 1986).
When determining whether the commissioner’s decision is supported by substantial
evidence, the reviewing court must take into consideration the entire record as a whole.
Futernick v. Richardson, 484 F.2d 647, 649 (6th Cir. 1973). If the Appeals Council declines
to review the ALJ’s decision, the court’s review is limited to the record and evidence before
the ALJ, Cotton v. Sullivan, 2 F.3d 692, 696 (6th Cir. 1993), regardless if the ALJ actually
cited to the evidence. Walker v. Sec’y of HHS, 884 F.2d 241, 245 (6th Cir. 1989).
Nonetheless, there is no requirement that the reviewing court discuss all of the evidence
in the record. Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 508 (6th Cir. 2006).
III. ANALYSIS
A. The Impact of the ALJ Implicitly Discounting Opinion of Treating Physician
Plaintiff’s first objection to the R&R argues that the magistrate judge erred in finding
harmless error in the ALJ’s discounting of the opinion of plaintiff’s treating physician without
adequate explanation. The court sees no error with the magistrate judge’s conclusion.
Plaintiff’s treating physician, Dr. Annette G. DeSantis, opined that plaintiff could lift
up to ten-to-fifteen pounds. The ALJ stated that she gave Dr. DeSantis’s opinions great
weight. However, the ALJ determined that plaintiff had the residual functional capacity
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(“RFC”) to lift up to twenty pounds. The magistrate judge reasoned that the apparent
contradiction between the amount of weight Dr. DeSantis opined plaintiff could lift and the
amount of weight the ALJ determined she could lift without an explanation by the ALJ as
to why she arrived at a different conclusion than Dr. DeSantis constituted error. However,
the magistrate judge explained that the error was harmless because, at the hearing, the
ALJ asked the vocational expert (“VE”) a hypothetical question that incorporated Dr.
DeSantis’s restriction — that plaintiff could only lift up to ten pounds. In response to the
hypothetical, the VE responded that there was work available in the national economy for
someone with plaintiff’s restrictions who could only lift as little as ten pounds. Any error
committed by the ALJ, therefore, was harmless error.
If an ALJ does not give weight to a treating physician’s opinion in the context of a
disability determination, the ALJ must “give good reasons” for discounting the physician’s
opinion. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (citing 20 C.F.R.
§ 404.1527(d)(2) (2004)). Generally, even if substantial evidence supports the ALJ’s
decision, the ALJ’s failure to give good reasons for discounting a treating physician’s
opinion constitutes reversible error. Id. However, “[t]here is . . . the possibility that if the
Commissioner adopts the opinion of the treating source or makes findings consistent with
the opinion, it may be irrelevant that the ALJ did not give weight to the treating physician’s
opinion[.]. Id. at 547.
Here, the ALJ’s error was harmless error, as the R&R concludes, because the ALJ
adopted the opinion of Dr. DeSantis in formulating a hypothetical question to the VE. The
VE was given a hypothetical question that incorporated Dr. DeSantis’s opinion that the
plaintiff could only lift up to ten pounds. The VE was asked to assume a person had
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plaintiff’s limitations, including that the hypothetical person could only lift up to ten pounds.
The VE testified that there were jobs in the national economy available in significant
numbers for such person.

Given that the ALJ’s hypothetical question to the VE

incorporated findings consistent with Dr. DeSantis’s opinion (that plaintiff could only lift up
to ten pounds), the ALJ’s contradictory statement that plaintiff could lift up to twenty pounds
is harmless error. See Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 536 (6th Cir. 2001)
(rendering the ALJ’s failure to reference a treating physician’s report in findings harmless
error where the hypothetical posed to the VE took into consideration the limitations imposed
by the treating physician in the report).
B. Whether Substantial Evidence Supports ALJ’s RFC Finding
Next, plaintiff argues that the magistrate judge erred in concluding that the ALJ’s
decision denying benefits is supported by substantial evidence. The court disagrees.
Plaintiff contends that the ALJ’s RFC finding that she is limited to light work is not
supported by substantial evidence. Plaintiff argues that the ALJ found that she had
“degenerative disc disease of the lumbar spine with disc bulge/tear and mild to moderate
biforaminal stenosis, worse on right than left, with mild impingement on existing LS nerve
root.” In addition, the ALJ determined that plaintiff had “cellulitis of the breast, asthma with
very rare flares and left ear hearing loss.” Essentially, plaintiff argues that the ALJ’s RFC
finding that she could perform light work is not consistent with the ALJ’s findings of
plaintiff’s limitations. Again, the court disagrees.
The R&R correctly concludes that the ALJ’s RFC finding is consistent with the
opinions of plaintiff’s treating physician, Dr. DeSantis. Moreover, as the R&R also notes,
the ALJ cited objective medical evidence to support her decision that plaintiff is capable of
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performing light work. The VE testified that a person with plaintiff’s limitations can perform
positions of office assistant and parking lot attendant. The ALJ’s RFC finding is supported
by substantial evidence. “The findings of the Commissioner are not subject to reversal
merely because there exists in the record substantial evidence to support a different
conclusion.” Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (citations omitted). While
the evidence may support plaintiff’s position that she is disabled, there is also substantial
evidence supporting the ALJ’s RFC finding that plaintiff is capable of performing light work.
C. The ALJ’s Credibility Determination
Finally, plaintiff challenges the ALJ’s credibility determination as it relates to plaintiff’s
subjective limitations.

Plaintiff argues that the ALJ placed little weight on plaintiff’s

testimony that she needs multiple breaks throughout the day, including time to nap, and
that her medications cause her to be drowsy. The magistrate judge rightfully concluded
that none of the objective medical evidence supports plaintiff’s subjective limitations.
“The ALJ’s findings as to a claimant’s credibility are entitled to deference, because
of the ALJ’s unique opportunity to observe the claimant and judge her subjective
complaints.” Buxton, 246 F.3d at 773 (citing Gaffney v. Bowen, 825 F.2d 98, 101 (6th Cir.
1987)). The Sixth Circuit has explained the proper standard for evaluating a plaintiff’s
subjective complaints:
First, we examine whether there is objective medical evidence of an
underlying medical condition. If there is, we then examine: (1) whether
objective medical evidence confirms the severity of the alleged pain arising
from the condition; or (2) whether the objectively established medical
condition is of such a severity that it can reasonably be expected to produce
the alleged disabling pain.
Duncan v. Secretary of Health & Human Servs., 801 F.2d 847, 853 (6th Cir. 1986).
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As the R&R explains, there is no objective medical evidence supporting plaintiff’s
testimony that she suffers from “extreme drowsiness.” Therefore, to the extent that the ALJ
discounted plaintiff’s credibility, the ALJ did not err because her decision is supported by
substantial evidence.
IV. CONCLUSION
For the reasons explained above, the magistrate judge’s R&R is ACCEPTED,
plaintiff’s objections are OVERRULED and her motion for summary judgment is DENIED,
defendant’s motion for summary judgment is GRANTED, and this case is DISMISSED.
IT IS SO ORDERED.
Dated: September 2, 2015
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
September 2, 2015, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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