Moore v. Social Security, Commissioner of

Filing 22

MEMORANDUM AND ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT (Doc. 17) AND DENYING PLAINTIFFS MOTION FOR SUMMARY JUDGMENT (Doc. 16) Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JANET MOORE,
Plaintiff,
v.

Case No. 14-12310
HON. AVERN COHN

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
______________________________________/
MEMORANDUM AND ORDER
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Doc. 17) AND
DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (Doc. 16)
I. INTRODUCTION

This is a social security case. Plaintiff Janet Moore (Plaintiff) appeals from the

final decision of the Acting Commissioner of Social Security (Commissioner) denying
her application for Social Security Disability Benefits. Plaintiff claims disability since
December 30, 2009, at age 51, due to severe back pain, lupus, rheumatoid arthritis, and
incontinence. (Tr. at 78)
The parties filed cross motions for summary judgment.

(Docs 16, 17)

The

motions were referred to a Magistrate Judge (MJ) for a report and recommendation
(R&R).

The MJ recommends that the Court deny Plaintiff’s motion for summary

judgment and grant the Commissioner’s motion. Now before the Court is Plaintiff’s
Objection to the R&R. (Doc. 19) For the following reasons, the Court will adopt the
R&R as the findings and conclusions of the Court, supplemented as below.

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The

Commissioner’s Motion for Summary Judgment (Doc. 17) is GRANTED and Plaintiff’s
Motion for Summary Judgment (Doc. 16) is DENIED. 1
II. BACKGROUND
The R&R sets forth the facts, many of which are repeated here.2 Plaintiff applied
for disability benefits in March 2011, alleging that she was disabled and unable to work
since February 2011, due to severe back pain, lupus, rheumatoid arthritis, and
incontinence. (Tr. at 78) Plaintiff later amended her alleged onset date to December
30, 2009. The Social Security Administration (SSA) denied Plaintiff’s claim, and Plaintiff
requested a hearing before an ALJ.

After considering evidence presented at the

hearing and in the record, the ALJ determined that Plaintiff was not entitled to disability
benefits because she retained the residual functional capacity to perform a limited range
of light work.3 (Tr. at 78) In reaching her decision, the ALJ considered Plaintiff’s own
testimony and considered various medical assessments.
A.
Plaintiff was 54 years old at the time of the administrative hearing. She has
graduated from high school, earned an associate’s college degree in business
administration, and was self-employed as a childcare provider from 2008 through early

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The Court scheduled this matter for hearing but the parties waived oral
argument. Upon review of the parties’ papers, the Court finds that oral argument is not
necessary. See E.D. Mich LR 7.1(f)(2).
2
Although the record contains extensive information relating to Plaintiff’s medical
history, only those records relevant to the instant objections are noted here.
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“Light work involves lifting no more than 20 pounds at a time with frequent lifting
or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be
very little, a job is in this category when it requires a good deal of walking or standing, or
when it involves sitting most of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full or wide range of light work, you
must have the ability to do substantially all of these activities.” 20 CFR 404.1567(b).
2

2011 (Tr. 67-68). During the relevant past, Plaintiff has been employed as a nurse’s
aide, school secretary, loan processor, and retail worker. (Tr. 69-71).
During 2008, while Plaintiff was employed as a nurse’s aide, Plaintiff sustained a
work-related injury. As a result, Plaintiff underwent a workers’ compensation evaluation,
which determined that she sustained injuries to her back and spine. In January 2011,
Plaintiff and her former employer reached a settlement under the auspices of the
Michigan Department of Labor and Economic Growth, Workers’ Compensation Board of
Magistrates, determining that Plaintiff was entitled workers’ compensation insurance
benefits, the details of which were memorialized in a redemption (settlement)
agreement. This was included as part of the record before the ALJ. (Tr. at 307-10)
On or about November 19, 2008, Plaintiff underwent a medical evaluation by
Michael Groff, D.O., at the St. Mary’s Neuroscience Program, complaining of pain in the
back, upper buttocks, and down the posterolateral aspects both legs, with severe pain
in the right heel and some numbness and tingling in the outside of the right foot. Dr.
Groff reviewed Plaintiff’s MRI images, and concluded that she suffered from multilevel
degenerative changes throughout the lumbar spine, a herniated disc in her lower back,
and a right radiculopathy causing disabling pain down her right leg. (Tr. at 463-66)
Between December 2008 and February 2010, Plaintiff continued to receive
treatment at St. Mary’s by a number of physicians, including Dr. Steven R. Klafeta,
M.D.. Repeatedly, the progress notes describe Plaintiff as presenting with severe right
lower extremity pain, consistent with a lower back herniated disc, significant nerve
compression, and right radiculopathy; repeatedly, these physicians advised her that she
should pursue physical therapy with the possibility of a surgical procedure, and
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recommended that she return to work (Tr. at 320, 323, 327-29, 332, 340-41, 345-49,
353-55)
On November 28, 2012, Plaintiff underwent an additional consultation with Dr.
Klafeta complaining of these same problems. Dr. Klafeta noted Plaintiff’s “long history
of back issues” and noted that, although she had been scheduled for surgery, she had
some resolution of her back pain but continued to experience back problems, including
some bilateral pain extending to her lower back, him, thigh, and knees. He also noted
that Plaintiff had not had any conservative therapy because of insurance issues, and
explained that a recent MRI showed degenerative disc problems, but some resolution of
the right-side disc herniation. He stated that Plaintiff had lower back pain, bilateral
lower extremity radicular pain, and “questionable” radiculopathy.

He discussed

treatment options with Plaintiff and recommended epidural steroid injections and
physical therapy, and advised that surgery should be considered a “last ditch option.”
(Tr. at 474)
B. The ALJ’s Decision
The ALJ concluded that Plaintiff was impaired as a result of obesity,
degenerative changes of the lumbar spine and hypertension, but that she did not have
an impairment or combination of impairments that met the severity required to be
considered a disability.
Relevant here, the ALJ considered Plaintiff’s extensive medical history, including
the progress notes by Dr. Klafeta.

For example, the ALJ described Dr. Klafeta’s

progress notes from February 11, 2010, stating the Plaintiff suffered from a right
herniated disc with severe right lower extremity radicular pain. The ALJ also noted Dr.
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Klafeta’s observation that that Plaintiff “was nearly complexly pain free” at the time of
the examination, had full strength, and was able to stand without difficulty. She also
had normal flexion and extension of the lumbosacral spine. The ALJ noted Dr. Klafeta’s
conclusion that because Plaintiff was doing better, he saw no reason to recommend
surgery at the time and released her to return to work. (Tr. at 47)
The ALJ also noted Plaintiff’s office visit with Dr. Klafeta on November 28, 2012.
The ALJ noted Dr. Klafeta’s conclusion that although there was a resolution of her
previous pain from the herniated disc, Plaintiff continued to have back problems. The
ALJ noted Dr. Klafeta’s conclusion that Plaintiff suffered from low back pain, bilateral
lower extremity radicular pain, and questionable radiculopathy.
Notably, however, the ALJ did not discuss or mention the 2008 workers’
compensation redemption agreement or Dr. Groff’s medical assessment from
November 19, 2008.
B. Plaintiff’s Objections to the R&R
Plaintiff advances three specific objections to the R&R. First, she says that the
R&R misconstrues the nature of the workers’ compensation redemption agreement in
justifying the ALJ’s failure to consider it. Second, Plaintiff says that the R&R errs in
finding that the opinion of Dr. Groff is irrelevant, in justifying the ALJ’s failure to consider
it. Lastly, Plaintiff says that the ALJ erred in failing to address Dr. Klafeta’s November
28, 2012 progress notes. For the following reasons, these assertions lack merit.
III. STANDARD OF REVIEW
Judicial review of a Social Security disability benefits application is limited to
determining whether the commissioner “has failed to apply the correct legal standards
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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, 299 (1938). The
Substantiality of the evidence must be based upon the record taken as a whole.
Futernick v. Richardson, 484 F.2d 647, 649 (6th Cir. 1973). The substantial evidence
standard “presupposes that there is a zone of choice within which the decision makers
can go either way, without interference with the courts.” Mullen v. Bowen, 800 F.2d
535, 545 (6th Cir. 1986). The portions of the R&R that the claimant objects to are
reviewed de novo. 28 U.S.C. § 636(b)(1)(c); Smith v. Detroit Fed’n of Teachers, Local
231, 829 F.2d 1370, 1373 (6th Cir. 1987).
IV. ANALYSIS
A. Plaintiff’s Workers’ Compensation Redemption Agreement
Plaintiff says that the MJ erred in stating that because the redemption agreement
is a “private contract between and employer,” it does not constitute a determination by a
government agency that Plaintiff is disabled.

Plaintiff counters that the workers’

compensation is not a private contract, but requires findings by a workers compensation
magistrate, following a hearing, that the application for workers’ compensation benefits
alleges a work-related injury. Plaintiff states that although the redemption agreement
would not be binding upon the ALJ, she was required to consider it as part of the record.
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Plaintiff’s arguments lack merit. To begin, Plaintiff relies on the 1967 Sixth Circuit
case, Nelms v. Gardner, 386 F.2d 971 (6th Cir. 1967), for the proposition that the ALJ is
required to consider a favorable workers’ compensation decision. The case, however
does not state as much and is furthermore distinguishable. Nelms says nowhere that a
favorable workers’ compensation decision must be considered; but merely that it is “a
factor to be considered.” Further, Nelms concerned a state court decree declaring the
plaintiff to be 100% disabled. Here, the redemption agreement is merely a settlement
agreement—a statement that the employer agrees to “redeem any and all liability”
arising out of Plaintiff’s work-related injury. It is not a determination by a state agency or
a state court, rather it is an agreement between Plaintiff and her former employer
regarding a work-related injury.
Finally, the redemption agreement, at most, acknowledges that Plaintiff suffered
a work-related injury—not that she is disabled. Because the worker’s compensation
agreement did not constitute—or even suggest—evidence of a disability determination
by another agency, the ALJ was not required to consider it. See Social Security Ruling
06- 03p, 2006 WL 2329939, at *6 (requiring consideration only of “a disability decision
by another governmental or nongovernmental agency”) (emphasis added).
B. Dr. Groff’s November 2008 Opinion
Next, Plaintiff argues that the MJ erred in stating that the November 2008 opinion
of Dr. Groff—which was rendered before Plaintiff’s alleged onset date of December 20,
2009—was irrelevant. Plaintiff states that the ALJ erred by failing to evaluate every
medical opinion received, citing 20 C.F.R § 404.1527(c) (stating that the ALJ “will

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always consider the medical opinions in your case record together with the rest of the
relevant evidence we receive”). Plaintiff’s argument lacks merit.
This Court has repeatedly stated that an ALJ is limited to considering medical
evidence rendered after the alleged onset date. See Gatewood v. Astrue, No. CIV. 0713326, 2008 WL 3838354, at *14 (E.D. Mich. Aug. 12, 2008) (rejecting the plainiff’s
argument that the ALJ was required to consider evidence predating the alleged onset
date, and holding that the ALJ “limited to considering the evidence during the relevant
period only”). Further, the substance of Dr. Groff’s diagnosis—that Plaintiff suffered
from multilevel degenerative changes throughout the lumbar spine, a herniated disc in
her lower back, and a right radiculopathy causing disabling pain down her right leg—is
not materially different from other evidence expressly considered by the ALJ. Indeed,
Plaintiff fails to note how Dr. Groff’s medical diagnosis would materially affect the ALJ’s
decision, or to point to medical evidence that was not considered elsewhere.
Finally, where, as here, the ALJ’s decision is otherwise supported by substantial
evidence, the failure to mention even a treating source’s opinion predating the alleged
onset is, at most, harmless error. See Gatewood, 2008 WL 3838354, at *14 (declining
to overturn the ALJ’s decision for failure to consider evidence prior to the alleged onset
date, stating that substantial evidence otherwise supported the conclusion that the
plaintiff was not disabled during the relevant period.); Mohssen v. Comm’r of Soc. Sec.,
No. 12-14501, 2013 WL 6094728, at *11 (E.D. Mich. Nov. 20, 2013) (finding that the
ALJ’s failure to mention even a treating physician’s opinion date a year before the
alleged onset date was at most harmless error).
C. Dr. Klafeta’s November 28, 2012 Progress Note
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Finally, Plaintiff argues that the ALJ erred by failing to address Dr. Klafeta’s
opinion regarding the severity of Plaintiff’s pain.

Specifically, Plaintiff points to Dr.

Klafeta’s November 28, 2012 progress note describing her low back pain and bilateral
lower extremity radicular pain, and stating that surgery is a “last ditch option for her
severe back pain.” These arguments, too, lack merit.
To begin, Dr. Klafeta’s November 28, 2012 progress note was not a medical
opinion as to Plaintiff’s ability to perform work activities, but a report noting Plaintiff’s
treatment history, subjective complaints, and objective examination findings. On that
date, Dr. Klafeta noted his impression that Plaintiff had low back pain, bilateral lower
extremity radicular pain, and questionable radiculopathy, and recommended that
Plaintiff undergo conservative care. His statement that surgery was a “last ditch option”
merely reflects his assessment that surgery is successful in only about half of similar
cases.

These observations and treatment recommendations do not constitute

judgments about the nature and severity of Plaintiff’s impairments, or the extent to
which she was able to carry out work activities. See Bass v. McMahon, 499 F.3d 506,
510 (6th Cir. 2007) (finding that a doctor’s observations do not qualify as “medical
opinions” under the Social Security regulations, and “without more, are not the type of
information from a treating physician which will be provided great weight”).
Finally, Dr. Klafeta’s November 28, 2012 progress notes are not materially
different from his earlier progress notes, or from other medical evidence in the record,
which repeatedly describe Plaintiff as presenting with severe right lower extremity pain,
consistent with a lower back herniated disc, significant nerve compression, and right
radiculopathy. If anything, the November 28, 2012 progress notes state that there has
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been some resolution of Plaintiff’s right-side disc herniation. Plaintiff fails to note how
Dr. Klafeta’s November 28, 2012 progress notes would materially affect the ALJ’s
decision in her favor, or to point to relevant medical evidence therein that was not
considered elsewhere.
VI. CONCLUSION
For the reasons stated above, the R&R is adopted as the findings and
conclusions of the Court, supplemented as above.

Plaintiff’s motion for summary

judgment has therefore been denied, and the Commissioner’s motion for summary
judgment granted. This case is DISMISSED.
SO ORDERED.

Dated: July 2, 2015

s/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

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