Robinson v. Social Security, Commissioner of

Filing 19

ORDER Adopting Report and Recommendation for DENYING 13 Motion for Summary Judgment filed by Dawn Marie Robinson, GRANTING 14 Motion for Summary Judgment filed by Social Security, Commissioner re 16 Report and Recommendation Signed by District Judge Sean F. Cox. (KJac)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Dawn Robinson,
Plaintiff,
v.

Case No. 14-12657

Commissioner of Social Security,

Sean F. Cox
United States District Court Judge

Defendant.
______________________________/
ORDER
ACCEPTING AND ADOPTING
REPORT & RECOMMENDATION
Plaintiff filed this action challenging the Commissioner’s unfavorable decision
disallowing benefits.
The matter was referred to Magistrate Judge Michael Hluchaniuk for determination of all
non-dispositive motions pursuant to 28 U.S.C. § 636(b)(1) and Report and Recommendation
pursuant to § 636(b)(1)(B) and (C).
Thereafter, the parties filed cross-motions for summary judgment. In a Report and
Recommendation (“R&R”) issued on August 6, 2015, Magistrate Judge Hluchaniuk
recommends that: 1) Plaintiff’s Motion for Summary Judgment be DENIED; 2) the
Commissioner’s Motion for Summary be GRANTED; and 3) the Commissioner’s decision be
AFFIRMED.
Pursuant to FED. R. CIV. P. 72(b), a party objecting to the recommended disposition of a
matter by a Magistrate Judge must filed objections to the R&R within fourteen (14) days after
being served with a copy of the R&R. “The district judge to whom the case is assigned shall
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make a de novo determination upon the record, or after additional evidence, of any portion of the
magistrate judge’s disposition to which specific written objection has been made.” Id.
Plaintiff filed timely objections to the R&R on August 20, 2015. (D.E. No. 17). Along
with her Objections, Plaintiff filed an “Attachment to” her Objections (D.E. No. 17-1) that
consists of decisions rendered in two other social security cases that were decided by the same
Administrative Law Judge (“ALJ”) that was involved in Plaintiff’s case. Plaintiff’s counsel
apparently represented the unsuccessful plaintiffs in those two cases.
Defendant responded to Plaintiff’s objections in its August 31, 2015 filing. (D.E. No.
18).
As explained below, the Court finds Plaintiff’s Objections to the magistrate judge’s R&R
to be without merit.
Plaintiff notes that the magistrate judge considered and rejected her accusation that the
Administrative Law Judge (“ALJ”) who decided her case “cherry-picked the evidence.” As her
first objection, Plaintiff criticizes the magistrate judge for not having considered decisions
rendered by this particular ALJ in other, unrelated cases. (See Pl.’s Objs. at 1) (“What escapes
Magistrate Judge Hluchaniuk is the fact that ALJ Detherage’s actions in this case are not
aberrations but rather his modus operandi, repeated in case after case.”). Plaintiff then directs
the Court to decisions rendered in two other, unrelated social security cases that were decided by
the same ALJ that decided Plaintiff’s case.
The Court flatly rejects this objection. As the magistrate judge correctly noted in his
R&R, the scope of this Court’s review in this matter is limited to an examination of the record
below. The magistrate judge did not err in failing to consider decisions rendered by this same
ALJ in other, unrelated cases. The Court agrees with the Commissioner that the question is
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whether substantial evidence supports the decision reached by the ALJ in this case, not two other
unrelated cases. Decisions rendered in other case have no bearing on whether the decision in
this case was supported by substantial evidence and it would have been error if the magistrate
would have considered them.1
As her second objection, Plaintiff acknowledges that there is a “zone of choice” within
which the ALJ’s decision could go either way and that the reviewing court is bound by the
discretion afforded to the ALJ. Plaintiff’s Counsel then makes baseball references and asserts, in
a conclusory fashion, that the ALJ’s decision was not within the zone of choice. (Pl.’s Objs. at
2). Plaintiff does not, however, explain how or why Plaintiff believes that the ALJ’s decision
was not within the zone of choice.
As her third objection, Plaintiff appears to assert that the ALJ should have ignored the
opinions of Dr. Sankaran and Dr. Blum because they are consulting physicians who depend
financially, at least in part, upon performing reviews. The fact that these physicians are paid for
their consultations is not, by itself, a reason to ignore their opinions.
As her fourth objection, Plaintiff appears to assert that the ALJ had to find that she has
severe mental impairment based on a GAF score. Citing Kennedy v. Astrue, 247 F. A’ppx 761,
766 (6th Cir. 2007), Plaintiff notes that the Sixth Circuit has stated that a “GAF score may help
an ALJ assess mental RFC.” The Sixth Circuit did state that an ALJ may help an ALJ assess
mental RFC. But that does not mean that an ALJ is required to give a GAF ruling weight in

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Moreover, it does not appear from the record that Plaintiff ever asked the magistrate
judge to review or consider the two unrelated decisions that Plaintiff’s Counsel references in the
objections. Counsel appears to have referenced and attached those irrelevant decisions for the
first time in connection with Plaintiff’s objections to the R&R.
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every case.
As her fifth objection, Plaintiff asserts that the magistrate judge erred in agreeing with the
Commissioner that the ALJ’s conclusions regarding plaintiff’s claims of disabling limitations are
supported by substantial evidence. Plaintiff’s Counsel criticizes the ALJ’s conclusion, accepted
by the magistrate judge, that Plaintiff’s self-reported activities are inconsistent with her
subjective complaints of disabling pain. (See Pl.’s Objs. at 4) (“Are benefits to be limited to
claimants’ living on death’s doorstep? Claimants who are bed-ridden or home bound?”). The
Court finds this objection without merit, because, as explained in the R&R, the ALJ is permitted
by the regulations to consider Plaintiff’s activities of daily living in assessing the credibility of
her subjective complaints.
As her sixth objection, Plaintiff faults the magistrate judge for having characterized
Plaintiff’s less-than-full compliance with her medical treatment due to finances, while at the
same time being able to fund nicotine and alcohol habits, as “a factor to be considered.” (Pl.’s
Objs. at 5). This Court reviewed this portion of the R&R’s and concurs with the magistrate
judge’s analysis and conclusion as to this issue. (See R&R at 30-31).
As her seventh objection, Plaintiff criticizes the ALJ’s reliance on the vocational expert’s
testimony and asserts that it failed to account for all of Plaintiff’s limitations. This Court
concurs with the magistrate judge’s analysis and his conclusion that the ALJ’s RFC assessment
and the related hypothetical posed to the VE accurately portray her mental and physical
impairments. (See R&R at 32).
As her eighth objection, Plaintiff appears to claim that the ALJ was biased or acting in
bad faith in this and unrelated other cases, and that the magistrate judge erred in failing to

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address that. (Pl.’s Objs. at 7) (“there is the appearance of bad faith on the part of the ALJ . . .
That is what is at stake here and in these other cited cases, and what, Magistrate Judge
Hluchaniuk’s analysis fails to address.”).
“We presume that judicial and quasijudicial officers, including ALJs, carry out their
duties fairly and impartially.” Bailey v. Commissioner of Social Sec., 413 F. App’x 853, 856
(6th Cir. 2011) (citing Rosen v. Goetz, 410 F.3d 919, 930–31 (6th Cir. 2005)). Plaintiff has the
burden of persuading the Court otherwise, “which she can do only with convincing evidence that
a risk of actual bias or prejudgment is present.’” Bailey, supra, at 856 (quoting Navistar Intern.
Transp. Corp. v. U.S. E.P.A., 941 F.2d 1339, 1360 (6th Cir. 1991). “In other words, any alleged
prejudice on the part of the decisionmaker must be evident from the record and cannot be based
on speculation.” Navistar, 941 F.2d at 1360. Here, Plaintiff has not identified any evidence that
suggests that the ALJ was biased against her. The fact that this ALJ ruled unfavorably as to
Plaintiff in this case, and against Counsel’s clients in two unrelated cases, does not establish bias
or bad faith. The Court therefore finds Plaintiff’s eighth and final objection without merit.
Accordingly, the Court hereby ADOPTS the August 6, 2015 Report and
Recommendation. IT IS ORDERED that: 1) Plaintiff’s Motion for Summary Judgment is
DENIED; 2) the Commissioner’s Motion for Summary is GRANTED; and 3) the
Commissioner’s decision is AFFIRMED.
IT IS SO ORDERED.
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: September 11, 2015

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Dawn Robinson,
Plaintiff,
v.

Case No. 14-12657

Commissioner of Social Security,

Sean F. Cox
United States District Court Judge

Defendant.
______________________________/
PROOF OF SERVICE
I hereby certify that a copy of the foregoing document was served upon counsel of record
on September 11, 2015, by electronic and/or ordinary mail.
S/Jennifer McCoy
Case Manager

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