Peterson v. Commissioner of Social Security

Filing 22

OPINION AND ORDER granting 14 Motion for Summary Judgment; denying 17 Motion for Summary Judgment; adopting 19 Report and Recommendation & REMANDING ACTION TO THE COMMISSIONER. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CANDY PETERSON,
Plaintiff,
Case No. 14-cv-13116
v.
Honorable Patrick J. Duggan
COMMISSIONER OF SOCIAL
SECURITY,

Magistrate Judge Mona K. Mazjoub

Defendant.

OPINION AND ORDER (1) ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION, (2) OVERRULING DEFENDANT’S
OBJECTION, (3) DENYING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT, (4) GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT IN PART, AND (5) REMANDING THE ACTION TO THE
COMMISSIONER
Plaintiff Candy Peterson seeks judicial review of a final decision of
Defendant Commissioner of Social Security denying her Title II application for a
period of disability and disability benefits as well as her Title XVI application for
supplemental security income, both protectively filed pursuant to the Social
Security Act on April 26, 2011. In her applications for benefits, Plaintiff alleged a
disability onset date of February 5, 2011 due to herniated discs in her back,
fibromyalgia, high blood pressure, carpal tunnel syndrome, bipolar disorder,
depression, muscle spasms, tremors, sleep apnea, and a cracked spine. The Social
Security Administration initially denied Plaintiff’s applications for benefits on

November 14, 2011. On February 5, 2013, upon Plaintiff’s request,
Administrative Law Judge (“ALJ”) Mary Peltzer conducted a de novo hearing at
which Plaintiff, represented by counsel, appeared and testified. The ALJ issued a
decision on March 1, 2013, finding Plaintiff not disabled because she was capable
of performing a significant number of jobs in the national economy. The ALJ’s
decision became the final decision of the Commissioner when the Social Security
Appeals Council denied review. Plaintiff initiated the instant suit seeking judicial
review of the Commissioner’s unfavorable decision on August 13, 2014.
The case was referred to a United States Magistrate Judge for a report and
recommendation (“R&R”) on all dispositive matters pursuant to 28 U.S.C.
§ 636(b)(1)(B) and Eastern District of Michigan Local Rule 72.1(b)(3).
Thereafter, the parties filed cross motions for summary judgment. On August 7,
2015, Magistrate Judge Mona K. Majzoub filed an R&R, recommending that
Plaintiff’s motion be granted in part, that Defendant’s motion be denied, and that
the matter be remanded to the Commissioner “for proper consideration and
discussion of Dr. Pettit’s medical opinion as a treating physician in accordance”
with the Social Security Administration’s regulations. (R&R 2.) At the conclusion
of the R&R, Magistrate Judge Majzoub advised the parties that they may object to
and seek review of the R&R within fourteen days of service upon them. Defendant
timely filed a single objection to the R&R on August 21, 2015 and Plaintiff filed a
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response on September 2, 2015. Defendant’s objection to the R&R is presently
before the Court. For the reasons set forth herein, the Court will adopt the R&R,
grant Plaintiff’s summary judgment motion in part, deny Defendant’s summary
judgment motion, and remand the action to the Commissioner for further
consideration.
I.
A.

LEGAL FRAMEWORK

Social Security Framework
Under the Social Security Act (hereinafter, the “Act”), disability insurance

benefits “are available only for those who have a ‘disability.’” Colvin v. Barnhart,
475 F.3d 727, 730 (6th Cir. 2007). The Act defines “disability” as the
inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.
42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505 (DIB); 20 C.F.R. § 416.905 (SSI).
Under the authority of the Act, the Social Security Administration has
established a five-step sequential evaluation process for determining whether an
individual is disabled. 20 C.F.R. § 404.1520(a)(4). If an ALJ determines that the
claimant is or is not disabled at a step of the evaluation process, the evaluation
does not proceed. Id. However, if the ALJ does not find that the claimant is
disabled or not disabled at a step, the ALJ must continue to the next step. Id. “The
burden of proof is on the claimant through the first four steps. . . . If the analysis
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reaches the fifth step without a finding that the claimant is not disabled, the burden
transfers to the [defendant].” Preslar v. Sec’y of Health & Human Servs., 14 F.3d
1107, 1110 (6th Cir. 1994); Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct.
2287, 2294 n.5 (1987).
The ALJ’s five-step process is as follows:
1. At the first step, the ALJ considers whether the claimant is currently
engaged in substantial gainful activity.1 20 C.F.R. § 404.1520(a)(4)(i).
2. At the second step, the ALJ considers whether the claimant has a severe
medically determinable physical or mental impairment that meets the
duration requirement of the regulations and which significantly limits the
claimant’s ability to do basic work activities.2 20 C.F.R. §
404.1520(a)(4)(ii) and (c).
3. At the third step, the ALJ again considers the medical severity of the
claimant’s impairment to determine whether the impairment meets or
equals an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
1. 20 C.F.R. § 404.1520(a)(4)(iii). If the claimant’s impairment meets
any Listing, he or she is determined to be disabled regardless of other
factors.3 Id.

1

The ALJ concluded that Plaintiff had not engaged in substantial gainful
activity since the alleged onset date of Plaintiff’s disability. (Tr. 31.)
2

The ALJ concluded that Plaintiff had the following severe impairments:
fibromyalgia; degenerative disc disease, lumbar and cervical spine; obesity;
migraine headaches; and mental disorder, diagnosed to include depression,
generalized anxiety disorder, panic disorder without agrophobia, and bipolar
disorder. (Tr. 32.)
3

The ALJ opined that Plaintiff did not have an impairment or combination
of impairments meeting or medically equivalent to a listed impairment. (Tr. 33.)
4

4. At the fourth step, the ALJ assesses the claimant’s residual functional
capacity and past relevant work to determine whether the claimant can
perform his or her past relevant work.4 20 C.F.R. § 404.1520(a)(4)(iv).
5. At the fifth step, the ALJ considers the claimant’s residual functional
capacity, age, education, and past work experience to see if he can do
other work. 20 C.F.R. § 404.1420(a)(4)(v). If there is no such work that
the claimant can perform, the ALJ must find that he or she is disabled.5
Id.
B.

Standard of Review Applicable to Social Security Appeals
This Court has jurisdiction to review the Commissioner’s final decision

pursuant to 42 U.S.C. § 405(g).6 Judicial review under this statute is limited: the

4

The ALJ found that Plaintiff “has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except: work
that can be done in a seated or standing position or combination thereof; occasional
climbing of stairs and ramps; no climbing of ladders, ropes or scaffolds; occasional
balancing, stooping, kneeling, crouching and crawling; no exposure to temperature
extremes; avoid concentrated exposure to vibrations and respiratory irritants such
as dust and fumes; and no exposure to hazards such as unprotected heights. She
can perform unskilled work with specific vocational preparation (SVP) of one or
two; can make judgments on simple work-related decisions; and can have no
contract with the general public but occasional contact with coworkers. She can
stay on task at least 90 percent of the workday, exclusive of normal breaks.” (Tr.
36.) Based on this assessment, the ALJ determined that Plaintiff was unable to
perform any past relevant work. (Id. at 42.)
5

Taking these criteria into consideration, and upon consulting with an
impartial vocational expert who testified during the hearing before the ALJ, the
ALJ determined that there are jobs that exist in significant numbers in the national
economy that Plaintiff could perform. (Tr. 42.)
6

Title 42 U.S.C. § 405(g) provides, in pertinent part:

Any individual, after any final decision of the Commissioner of Social
Security made after a hearing to which he was a party . . . may obtain
5

Court “must affirm the Commissioner’s conclusions absent a determination that
the Commissioner has failed to apply the correct legal standard or has made
findings of fact unsupported by substantial evidence in the record.” Longworth v.
Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005) (internal quotation marks
omitted).
A district court’s review of an ALJ’s factual findings involves application of
the substantial evidence standard. 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.” Rogers v. Comm’r of Soc.
Sec., 486 F.3d 234, 241 (6th Cir. 2007) (internal quotation marks omitted). If the
Commissioner’s decision is supported by substantial evidence, “it must be affirmed
even if the reviewing court would decide the matter differently and even if
substantial evidence also supports the opposite conclusion.” Cutlip v. Sec’y of
Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (internal citations
omitted); see also Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc)
(noting that the substantial evidence standard “presupposes . . . a zone of choice

a review of such decision by a civil action . . . The court shall have
power to enter . . . a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing. The findings of the
Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .
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within which the decisionmakers can go either way, without interference by the
courts”) (internal quotation marks omitted).
When reviewing the Commissioner’s factual findings for substantial
evidence, courts are limited to examining the record and must consider that record
as a whole. Bass v. McMahon, 499 F.3d 506, 512-13 (6th Cir. 2007); Wyatt v.
Sec’y of Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992) (explaining
that courts reviewing the Commissioner’s factual findings for substantial evidence
must consider the evidence in the record as a whole, including evidence which
might subtract from its weight). Federal courts may “not reconsider facts, reweigh the evidence, resolve conflicts in evidence, decide questions of credibility,
or substitute its judgment for that of the ALJ.” Reynolds v. Comm’r of Soc. Sec.,
424 F. App’x 411, 414 (6th Cir. 2011) (unpublished) (citing Youghiogheny & Ohio
Coal Co. v. Webb, 49 F.3d 244, 246 (6th Cir. 1995)).
The other line of judicial inquiry – reviewing for correctness of the ALJ’s
legal analysis – may result in reversal even if the record contains substantial
evidence supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec.,
582 F.3d 647, 651 (6th Cir. 2009). “[E]ven if supported by substantial evidence, ‘a
decision of the Commissioner will not be upheld where the [Social Security
Administration] fails to follow its own regulations and where that error prejudices
a claimant on the merits or deprives the claimant of a substantial right.’” Id.
7

(quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007) and
citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-47 (6th Cir. 2004)); cf.
Buchanan v. Apfel, 249 F.3d 485, 492 (6th Cir. 2001) (the Commissioner has a
clear, nondiscretionary duty to comply with Social Security regulations).
C.

Standard of Review Applied to Objections to an R&R
Courts review de novo the parts of an R&R to which a party objects. Fed. R.

Civ. P. 72(b). Courts are not, however, “required to articulate all the reasons it
rejects a party’s objections.” Thomas v. Halter, 131 F. Supp. 2d 942, 944 (E.D.
Mich. 2001).
II.

ANALYSIS

Defendant’s raises a single objection to Magistrate Judge Mazjoub’s R&R,
arguing that the magistrate judge’s “recommendation is based on a
misinterpretation of the Commissioner’s regulations that a diagnosis is an opinion,
which must in turn be evaluated under 20 C.F.R. sections 404.1527 and 616.927,
and for which the ALJ must give good reasons for the weight it is afforded.”
(Def.’s Obj. 3 (citing R&R 6-10).) Arguing that the ALJ’s failure to explain the
weight it accorded to Plaintiff’s treating psychiatrist,7 Dr. Pettit, was justified on
the basis that Dr. Pettit’s treatment records contained only diagnoses as opposed to

7

The parties do not dispute that Dr. Pettit qualifies as a treating psychiatrist
whose opinion is entitled to deference unless unsupported by substantial record
evidence.
8

an actual medical opinion, Defendant asks this Court to reject the R&R and enter
judgment in its favor.
In the R&R, Magistrate Judge Mazjoub recommends denying Defendant’s
motion for summary judgment and granting Plaintiff’s cross motion in part
because, in her opinion, the ALJ failed to properly evaluate and or assign any
weight to the treatment records of Dr. Pettit. (R&R 9-10.) In reaching this
conclusion, the magistrate judge rejected Defendant’s argument – rehashed in its
objections – that the ALJ did not err “because Dr. Pettit did not author a medical
opinion with regard to Plaintiff’s impairments or functional limitations.” (Id. at 9.)
Magistrate Judge Mazjoub noted the Social Security Administration’s definition of
“medical opinions” as “statements from physicians and psychologists or other
acceptable medical sources that reflect judgments about the nature and severity of
your impairment(s), including your symptoms, diagnosis and prognosis, what you
can still do despite impairment(s), and your physical or mental restrictions.” 20
C.F.R. § 404.1527(a)(2), § 416.927(a)(2). Noting that the ALJ not only failed to
mention Dr. Pettit by name or the results of Plaintiff’s Burns Anxiety and
Depression Tests, but that a “plain reading of the ALJ’s decision demonstrates that
she did not assign any weight to the opinions of Dr. Pettit, except for the GAF
scores that [s]he assigned to Plaintiff[,]” Magistrate Judge Mazjoub determined
that the matter should be remanded for proper consideration and discussion of Dr.
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Pettit’s medical opinion as a treating physician pursuant to sentence for of 42
U.S.C. § 405(g). (R&R 8, 9.)
Defendant argues that the magistrate judge erred by concluding that Dr.
Pettit’s diagnoses were a medical opinion because they provided no explanation of
Plaintiff’s specific limitations. According to Defendant’s reading of the pertinent
regulations, a medical opinion must provide insight into a plaintiff’s actual
restrictions or specific limitations resulting from a given condition. While this
position is not entirely without support, the cases Defendant relies upon are
distinguishable from the circumstances existing here, namely because Defendant
fails to address, or even mention, Magistrate Judge Majzoub’s concerns regarding
the Burns Anxiety and Depression Tests. As the R&R points out, if the test scores
were completed by Dr. Pettit, they would constitute medical opinions and would be
relevant to the ALJ’s analysis, “as they measure the severity of a person’s anxiety
or depression.” (R&R 9.) Such evidence would serve to inform the ALJ of
“specific limitations that impair Plaintiff’s ability to work[,]” Leidlein v.
Commissioner of Social Security, No. 14-10718, 2015 U.S. Dist. LEXIS 39122, at
*20-21 (E.D. Mich. Mar. 27, 2015) (Berg, J.), and should therefore be considered
on remand if it is determined that the tests were completed by Dr. Pettit.
III.

CONCLUSION AND ORDER

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Having thoroughly reviewed the administrative record, Magistrate Judge
Mazjoub’s R&R, Defendant’s objection to the R&R, and Plaintiff’s response
thereto under the lens of de novo review, the Court OVERRULES Defendant’s
objection and ADOPTS Magistrate Judge Mazjoub’s R&R.
Accordingly,
IT IS ORDERED that Defendant’s motion for summary judgment is
DENIED and that Plaintiff’s motion for summary judgment is GRANTED IN
PART AND DENIED IN PART;
IT IS FURTHER ORDERED that the case is REMANDED to the
Commissioner for further consideration pursuant to Sentence Four of 42 U.S.C. §
405(g) for proceedings consistent with this Opinion and Order.
Dated: September 21, 2015
s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Copies to:
Karlan J. Bender, Esq.
Derri T. Thomas, AUSA
Karla J. Gwinn, Esq.
Magistrate Judge Mona K. Mazjoub

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