Biermaker v. Social Security, Commissioner of

Filing 29

OPINION AND ORDER Adopting 26 Report and Recommendation Denying 24 Motion for Summary Judgment filed by Kelly Biermaker and Granting 23 Motion to Dismiss filed by Social Security, Commissioner of. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KELLY BIERMAKER,
Case No. 14-12301
Plaintiff,
Paul D. Borman
United States District Judge
v.
Stephanie Dawkins Davis
United States Magistrate Judge
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
______________________________/
OPINION AND ORDER
(1) DENYING PLAINTIFF’S OBJECTIONS (ECF NO. 27);
(2) ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION (ECF NO. 26);
(3) DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 24);
(4) GRANTING DEFENDANT’S MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR
SUMMARY JUDGMENT (ECF NO. 23); AND
(5) DISMISSING THE CASE
On June 13, 2016, Magistrate Judge Stephanie Dawkins Davis issued a Report and
Recommendation addressing the outstanding motions in this action. (ECF No. 26). In the
Report and Recommendation, the Magistrate Judge suggests that this Court deny Plaintiff Kelly
Biermaker’s Motion for Summary Judgment (ECF No. 24). Further, the Magistrate Judge
recommends that this Court grant Defendant Commissioner of Social Security’s Motion to
Dismiss or, in the Alternative, Motion for Summary Judgment (ECF No. 23).
Now before the Court is Plaintiff’s Objections to the Magistrate Judge’s Report and
Recommendation. (ECF No. 27, Objections.) Defendant filed a timely reply. (ECF No. 28.)
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 summary judgment, and grant the Defendant’s
motion to dismiss, or in the alternative, 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 Report and
Recommendation and the Court incorporates those factual recitations here. (ECF No. 26, Report
and Recommendation at 3-5.)
Briefly, on December 8, 2011, Plaintiff applied for disability insurance benefits and
alleged a disability onset date of May 30, 2008, due to fibromyalgia. (Tr. 102-108.) Her
application was denied and she then requested a hearing before an ALJ. (Tr. 55, 62.) Plaintiff
appeared with counsel before ALJ JoErin O’Leary on January 4, 2013. (Tr. 28-45.)
On February 7, 2013, the ALJ determined that Plaintiff was not disabled within the
meaning of the Social Security Act. (Tr. 14-27.) The ALJ concluded in her decision that
Plaintiff suffered from the severe impairments of fibromyalgia and scoliosis. (Tr. 19.) The ALJ
then 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 in 20 CFR Part 404,
Subpart P, Appendix 1. (Tr. 19-20.) Critically, the ALJ noted that “[n]o treating or examining
physician has mentioned findings equivalent in severity to the criteria of any listed impairment,
nor does the evidence show medical findings that are the same or equivalent to those of any
listed impairment of the Listing of Impairments” (Tr. 20.) Further, the ALJ recognized that
Plaintiff complained of a “burning, tingling sensation in her extremities, as well as occasional

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lower extremity numbness. However .... the record does not demonstrate persistent
disorganization of motor function in at least two extremities, resulting in sustained disturbance in
either gait or station or the ability to perform gross and dexterous movements. The claimant can
walk and drive short distances and perform most household chores.” (Id.)
The ALJ determined that the Plaintiff had the residual functioning capacity (“RFC”) to
perform light work as defined in 20 CFR § 404.1567(b) except that she could only occasionally
climb, balance, stoop, kneel, crouch, or crawl. (Id.) The ALJ concluded that Plaintiff’s
allegations regarding the extent of her symptoms were “less than fully credible” because her
reports to physicians, her daily activities, and the medical evidence of record were not consistent
with the degree of impairment alleged by Plaintiff. (Tr. 21-22.)
The ALJ then determined that Plaintiff could perform her past work as a bus monitor.
(Tr. 23-24.) Considering Plaintiff’s age, education, work experience, and residual functional
capacity, and relying upon the testimony of the VE, the ALJ also concluded, in the alternative,
that Plaintiff was capable of performing the representative occupations such as kitchen helper,
food preparation worker, and cashier which existed in significant numbers in the national
economy. (Id.) Therefore, the ALJ concluded that Plaintiff was not disabled. (Tr. 24.)
The ALJ’s decision became the final decision of the Commissioner on April 9, 2014,
when the Appeals Counsel denied Plaintiff’s request for review. (Tr. 1-4.) Thereafter, Plaintiff
timely filed the instant federal action seeking judicial review of the Defendant’s decision. (ECF
No. 1.) Both Plaintiff and Defendant filed motions for summary judgment. (ECF Nos. 9, 10.) A
Report and Recommendation issued on March 26, 2015, wherein Magistrate Judge Michael J.
Hluchaniuk found the ALJ’s decision was supported by substantial evidence and also

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admonished Plaintiff’s then counsel for his performance and recommended monetary sanctions.
(ECF. No. 11.) Plaintiff objected to that Report and Recommendation, but before the objection
could be resolved the action was transferred to a three judge panel pursuant to Administrative
Order 15-AO-045. Thereafter, in light of the resolution of the three judge panel, this Court
denied Plaintiff’s and Defendant’s motions for summary judgment, the Magistrate Judge’s
Report and Recommendation, and Plaintiff’s objections as moot. (ECF No. 20.)
Plaintiff was ordered to file a second motion for summary judgment no later than March
9, 2016 or risk dismissal. (ECF No. 22.) Plaintiff did not file a motion for summary judgment
by this date. On March 10, 2016, Defendant filed a motion to dismiss based upon Plaintiff’s
failure to prosecute the case, or in the alternative, a motion for summary judgment based upon
the earlier, now moot, Report and Recommendation. (ECF No. 23.) Thereafter, Plaintiff filed a
motion for summary judgment and a motion for an extension of time. (ECF Nos. 24, 25.) The
Magistrate Judge granted the motion for an extension of time. Neither party filed a responses to
the pending dispositive motions.
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

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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 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)).
As to the second inquiry – whether proper legal criteria were followed – a decision of the
Commission supported by substantial evidence will not be upheld “where the SSA fails to follow
its own regulations and where that error prejudices a claimant on the merits or deprives the
claimant of a substantial right.” Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir.
2007) (citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-47 (6th Cir. 2004)).
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

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given great weight, ‘particularly since the ALJ is charged with observing the claimant’s
demeanor and credibility.”) (citation omitted)).
Finally, the Court notes that a general objection that merely rehashes the argument
previously made by the party is insufficient to alert this Court to any alleged error. Moreover, a
party’s objection that does nothing more than disagree with the Magistrate Judge’s
recommendation is not a proper objection. See Howard v. Sec’y of Health and Hum. Servs., 932
F.2d 505, 508 (6th Cir. 1991); Slater v. Potter, 29 F. App’x 512, 513 (6th Cir. 2002) (“the filing
of vague, general or conclusory objections does not meet the requirement of specific objections
and its tantamount to a complete failure to object.”).
III. ANALYSIS
Plaintiff failed to comply with the Magistrate Judge’s explicit instructions, set forth in the
Report and Recommendation, that an objecting party must label any objection as “Objection No.
1,” “Objection No. 2,” etc. and “recite precisely the provision of this Report and
Recommendation to which it pertains.” (ECF No. 26, at 26.) The Court finds the majority of
Plaintiff’s objections to be both vague and conclusory and thus not entitled to a de novo review.
Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (finding only specific objections are entitled
to de novo review.) “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). To the extent that the Court can discern specific objections, those three objections are
addressed below.

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A.

Objection 1

Plaintiff first appears to object to the Magistrate Judge’s characterization of Plaintiff’s
statements to Dr. Siva Sankaran. (Obj., at 2.) Plaintiff argues that she never advised Dr.
Sankaran that she could “walk a few blocks or climb a flight of stairs with no difficulty...” (ECF
No. 26, at 18; see also Tr. 21, “[T]he claimant told Dr. Sankaran that she could walk a few
blocks or climb a flight of stairs with no difficulty...”) Rather, Plaintiff contends that she advised
Dr. Sankaran that “she is able to walk two or three blocks without difficulty. She can go up one
flight of stairs.” (Tr. 194.) While Plaintiff has pointed out this discrepancy, Plaintiff has not
articulated how Plaintiff’s ability to climb a single flight of stairs rather than to do the same
“with no difficulty” was significant to the ALJ’s or the Magistrate Judge’s analysis. Indeed, this
fact was just one of many relied upon by the Magistrate Judge in her evaluation of whether the
ALJ’s decision was supported with substantial evidence. For this reason, the Court finds that
even if this characterization of Dr. Sankaran’s statement can be construed as error, it did not
affect the Magistrate Judge’s ultimate recommendation and constitutes harmless error.
B.

Objection 2

Plaintiff’s second objection appears be that the Magistrate Judge erred when she
misstated Plaintiff’s testimony regarding her ability to lift 10 pounds. Plaintiff contends that the
ALJ and the Magistrate Judge ignored her contemporaneous testimony that, “when I go to make
a bed or something, you know how you have to lift the thing up to put the thing in, I get really
bad pains in my wrists and in my hands.” (Tr. 33.)

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The Court denies Plaintiff’s objection. While true Plaintiff testified that changing sheets
on a bed caused her to have pains in her wrists and hands, she also explicitly testified in response
to a direct question that she could “comfortably” lift “maybe 10 pounds.” (Tr. 33.) Therefore,
the Court agrees with the Magistrate Judge and the ALJ that Plaintiff did, in fact, testify that she
could comfortably lift 10 pounds. (ECF No. 26, at 18.) Further, the Court notes that in
concluding that Plaintiff could perform the lifting requirements of light work, the ALJ noted that
Plaintiff had demonstrated “consistently normal... strength” and Dr. Margaret Fountain’s
conclusion that Plaintiff was capable of light work with occasional postural activities, but no
environmental or manipulative limitations.” (Tr. 21-22.) Thus, the ALJ’s conclusion was
supported by other evidence in the record beyond Plaintiff’s testimony.
C.

Objection 3

As to the ALJ’s credibility evaluation, Plaintiff appears to argue that the Magistrate
Judge erred when she failed to address the fact that “the ALJ made a blanket claim that her
activities are ‘inconsistent with a finding of disability,’ but cited no such inconsistency.” (Obj.,
at 6.) Plaintiff also argues that the Magistrate Judge made “no attempt to address any of the
statements from Plaintiff and her husband about one of her most severe manifestations of
[fibromyalgia], impaired sleep.” (Id.)
The Court finds Plaintiff’s argument regarding the ALJ’s credibility assessment is
unpersuasive and unsupported in the record. The Magistrate Judge and the ALJ sufficiently
addressed Plaintiff’s activities of daily living and how those activities were inconsistent with her
claimed level of impairment and disability. (ECF No. 26, 17-18; Tr. 21-22.) To wit, the
Magistrate Judge accurately noted that the ALJ considered that Plaintiff could walk a few blocks

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and climb a flight of stairs, she was independent with her household chores, and that she
experienced fatigue only occasionally.” (ECF No. 26, at 18.) Further, the ALJ noted that
Plaintiff had helped to care for children and an elderly family member in June 2012, and while
she was not “actively involved in their daily care” and did not perform heavy lifting or personal
care activities, “her ability to perform such a role even on a limited basis is inconsistent with a
finding of disability.” (Tr. 21-22.)
Plaintiff’s cursory objection regarding the treatment of her and her husband’s allegations
regarding her lack of sleep are similarly without a factual basis. The Magistrate Judge and the
ALJ both explicitly discussed Plaintiff’s allegations and her husband’s statement that she had
difficulty sleeping because of pain. (See ECF No. 26, at 18; Tr. 21.) Given this record which
clearly rebuts Plaintiff’s arguments, Plaintiff’s objections are denied.
IV. CONCLUSION
For all these reasons, the Court DENIES Plaintiff’s Objections (ECF No. 27), ADOPTS
the Magistrate Judge’s Report and Recommendation (ECF No. 26), DENIES Plaintiff’s Motion
for Summary Judgement (ECF No. 24), GRANTS Defendant Commissioner’s Motion to Dismiss
or, in the Alternative, Motion for Summary Judgment (ECF No. 23) and DISMISSES this action
with prejudice.
IT IS SO ORDERED.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: September 20, 2016

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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 20, 2016.

s/Deborah Tofil
Case Manager

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