Ostrander v. Social Security, Commissioner of

Filing 17

OPINION and ORDER Affirming Decision of the Commissioner of Social Security - Signed by District Judge Laurie J. Michelson. (JJoh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MYRA OSTRANDER,
Plaintiff,
v.

Case No. 14-13151
Honorable Laurie J. Michelson
Magistrate Judge Mona K. Majzoub

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
OPINION AND ORDER
AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY
In 2012, Plaintiff Myra Ostrander applied for period of disability benefits, disability
insurance benefits, and social security income. In her applications, she alleged that she had
become disabled from full-time work in August 2008. An administrative law judge acting on
behalf of the Commissioner of Social Security thought otherwise, and concluded that Ostrander
could perform light, unskilled work despite her health conditions. After the Social Security
Administration’s Appeals Council declined to review Ostrander’s case, Ostrander appealed here.
Ostrander’s appeal was referred to Magistrate Judge Mona K. Majzoub for all pretrial
matters. (Dkt. 2) Following that referral, Ostrander’s counsel was terminated from the case and
the motion he filed was stricken from the docket. (See Dkt. 15.) Ostrander was given time to
retain new counsel but did not. (See Dkts. 15, 16.) The Magistrate Judge then gave Ostrander a
deadline to file her own pro se motion for summary judgment (and warned that the failure to do
so might result in dismissal), but Ostrander did not comply. (See Dkts. 15, 16.) As such, the
Magistrate Judge recommends dismissing Ostrander’s case for failure to prosecute. (See
generally Dkt. 16, R. & R.)

Courts in this District are split regarding the propriety of dismissing a social security case
for failure to prosecute when the plaintiff is proceeding pro se. See Crist v. Comm’r of Soc. Sec.,
No. 13-CV-14008, 2014 WL 2931412, at *2 (E.D. Mich. June 27, 2014). Some reason that social
security claimants often suffer from medical conditions that make it difficult for them to pursue
their cases by way of a summary-judgment motion. It has been this Court’s practice in these
situations to “(1) review the administrative record and the ALJ’s narrative and then (2) determine
whether the ALJ’s findings are supported by substantial evidence or whether the ALJ made an
obvious legal error.” Brown v. Comm’r of Soc. Sec., No. 12-14057, 2014 WL 222760, at *12
(E.D. Mich. Jan. 21, 2014) (Michelson, M.J.). The Court continues to adhere to that practice, but
clarifies its statement in Brown as follows: the Court reviews the ALJ’s findings, including
whether they are supported by substantial evidence, for obvious error. See Mosely v. Astrue, No.
2:12-CV-836, 2013 WL 1316013, at *1 (S.D. Ohio Mar. 28, 2013) (“In the past, especially when
dealing with a pro se litigant (that is, someone who is not represented by an attorney), the Court
has done a general review of the Commissioner’s decision to make sure there are no obvious
errors even when the plaintiff has not filed anything in this Court but the complaint.”).
Upon reviewing the ALJ’s narrative and the administrative record, the Court finds no
apparent error warranting reversal or remand.
The Administrative Record
In 2005, years before her disability onset date, Ostrander went to see Dr. Charles
Ellsworth for numbness in her left arm and fingers. (Tr. 205.) Dr. Ellsworth ordered an MRI of
Ostrander’s cervical spine. (Tr. 205.) It revealed “minor disc bulging at C6–C7” and bony
elements at C7 “impinging mildly upon the spinal cord.” (Tr. 205.)

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In 2008, just after her disability onset date, Ostrander heard a pop in her wrist when she
was pushing herself up from bed. (Tr. 237.) She was diagnosed with a “[w]rist sprain” and
prescribed ice, rest, and Motrin. (Tr. 236.) A few days later, a CT scan of Ostrander’s cervical
spine revealed degenerative changes and a 2 mm listhesis (slippage). (Tr. 235.)
In 2010, an x-ray was taken of Ostrander’s cervical spine; it showed “[d]generative
arthritis.” (Tr. 204.)
In 2011, Ostrander was seen for fatigue, depression, and neck pain. (Tr. 212.) The
physician assessed hypothyroidism and depression. (Tr. 216–17.) The physician also noted
boutonniere and swan-neck deformities. (Tr. 216.) A picture helps:

David

R.

Steinberg,

MD,

Swan-Neck

Deformity,

Merck

Manual

(Mar.

2013)

http://goo.gl/OA6cWU.
In 2012, Ostrander reestablished treatment with Dr. Ellsworth. (Tr. 247.) She reported
“back pain and RA [rheumatoid arthritis] and COPD[.]” (Id.) She stated that scrolling on a
computer gave her headaches and that her hands would go numb. (Id.) On assessment, Ostrander
had a positive leg-raise test. (Tr. 248.) Dr. Ellsworth made no diagnoses regarding Ostrander’s
hands but, as relevant here, assessed lower back pain and COPD. (Id.) In September 2012, a
number of imaging studies were performed. One showed a heel spur, another “minimal
degenerative changes” in the lower thoracic spine, a third, “minimal degenerative changes” at

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C6–C7, and a fourth, “[m]inimal degenerative changes of some of the interphalangeal joints on
both sides.” (Tr. 276, 278, 282.)
Ostrander also received treatment for depression. In April 2012, she had a psychological
evaluation. (Tr. 260.) She reported depression since childhood, past suicide attempts, hearing a
voice, and dealing with family problems. (Tr. 260, 273.) Ostrander’s memory was assessed as
“normal,” her intelligence “average,” her judgment “good,” and her insight “good/fair.” (Tr.
260.) She was diagnosed with major depressive disorder. (Tr. 261.) In July 2011, Ostrander
reported feeling anxious, but at her next appointment she stated that she felt better. (Tr. 272.)
Ostrander withdrew from treatment in July 2011, with the discharge note indicating
improvement. (Tr. 273.) In March 2013, about a month before her social security hearing,
Ostrander restarted mental-health treatment. (Tr. 290.)
In April 2013, Ostrander appeared before an administrative law judge to testify about the
conditions that she believed prevented her from working. (Tr. 28–44.) Regarding her hands, she
testified that her rheumatoid arthritis caused her hands to “fold[] up” and that she had to “pry
them open” in the morning to make them work. (Tr. 33.) She said that was constantly dropping
items and that she could pick up a gallon of milk (which weighs about eight-and-a-half pounds)
only if she used both hands. (Tr. 36, 40.) Ostrander testified that if she worked, she would have
to miss two days a week when her hands would not open. (Tr. 41.) Regarding her back, she
stated, “[w]hen I move I can hear my spinal cord grind” and that she was in “constant pain”
“every[ ]day.” (Tr. 36.) She also stated that she would “fall all the time” because her right leg
went “out from under [her].” (Tr. 38.) Ostrander told the ALJ that she could not walk even half a
block and that she used a cane. (Tr. 40.) When asked if she could walk a quarter-block,
Ostrander stated, “I’m doing good to walk around the van, but I lean on it.” (Id.) As for her

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mental health, she testified that if she was told to go to the grocery store and get three items
(butter, eggs, and milk), she would forget what she was supposed to get by the time she arrived
at the store. (Tr. 37.)
Obvious-Error Review
Having considered all the foregoing, the ALJ thought that Ostrander could perform
“light” “unskilled” work. The former, as defined by the social security regulations, generally
involves walking or standing for up to six hours in an eight-hour workday, SSR 83-10, 1983 WL
31251, at *5–6, and “lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds,” 20 C.F.R. §§ 404.1567(b), 416.967(b).
Based on the record, the Court has some doubts about Ostrander’s ability to lift twenty
pounds on occasion and ten pounds for up to two-thirds of a workday. See SSR 83-10, 1983 WL
31251, at *5–6. It is plain that Ostrander has finger deformities consistent with rheumatoid
arthritis. And it is not a stretch to say that Ostrander’s hand problems limit her ability to grip and
lift. Somewhat troublingly, the ALJ did not include any limitations specific to Ostrander’s
fingers or ability to manipulate objects.
On the other hand, the record does not reveal how much Ostrander’s ability to grip,
handle, and lift was limited. And it does reveal that Ostrander’s treatment for her hands was very
limited—indeed it does not appear that any physician has actually diagnosed rheumatoid arthritis
or prescribed any medication because of that condition. Further, the ALJ acknowledged
Ostrander’s testimony about her hands in his narrative and noted that her hand x-rays showed
minimal degenerative changes. (Tr. 21.) The ALJ also likely observed Ostrander’s hands during
the hearing. As such, the Court does not believe that the ALJ’s lifting limitation, or failure to
include a manipulation limitation, plainly lacks substantial evidentiary support. See Mullen v.

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Bowen, 800 F.2d 535, 545 (6th Cir.1986) (en banc) (noting that the substantial evidence standard
“presupposes . . . a zone of choice within which the decisionmakers can go either way, without
interference by the courts” (internal quotation marks omitted)).
The Court struggles less with the ALJ’s standing and walking limitations. The objective
findings, summarized above, do not suggest disabling low-back or leg pain. Indeed, the imaging
studies of record indicate “mild” spinal cord impingement and “minimal” degenerative changes.
The Court also finds no obvious error with the ALJ’s “unskilled” limitation. Unskilled
work is “work which needs little or no judgment to do simple duties that can be learned on the
job in a short period of time.” SSR 83-10, 1983 WL 31251, at *7. A review of Ostrander’s
mental-health treatment records reveals that such work is well within her abilities.
As such, the Court finds that the ALJ’s conclusion that Ostrander could perform light,
unskilled work to be supported by substantial evidence.
But should the ALJ have even reached that step of the disability analysis? The answer is
not entirely straightforward. In another case where a pro se claimant filed no motion for
summary judgment, this Court concluded, “a review of the administrative record reveals readily
discernible legal error. In particular, the administrative record lacks an expert opinion on whether
Brown’s physical impairments (alone or combined with her mental impairments) medically
equal any listed impairment found in 20 C.F.R. Part 404, Subpart P, Appendix 1.” Brown v.
Comm’r of Soc. Sec., No. 12-14057, 2014 WL 222760, at *13 (E.D. Mich. Jan. 21, 2014)
(Michelson, M.J.); see also SSR 96-6p, 1996 WL 374180, at *3 (1996) (“[L]ongstanding policy
requires that the judgment of a physician (or psychologist) designated by the Commissioner on
the issue of equivalence on the evidence before the administrative law judge or the Appeals

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Council must be received into the record as expert opinion evidence and given appropriate
weight.”).
In this case, there is potentially the issue uncovered in Brown. At the initial-review level
(where disability benefits applications are first reviewed), two state-agency physicians opined on
Ostrander’s condition: Dr. Ashok Kaul and Dr. U. Gupta. The problem, however, is that the
“Disability Determination Explanation” indicates that Dr. Kaul only considered Listing 12.06 (a
mental-health listing) and that Dr. Gupta only assessed Ostrander’s residual functional capacity.
(Tr. 86, 88.) That is, the Disability Determination Explanation indicates that no physician opined
on whether Ostrander’s conditions were the medical equivalent of other potentially-relevant
listings, such as those relating to musculoskeletal conditions. And, as this Court explained in
Brown, ALJs (and courts) generally lack the expertise to make the medical equivalence call.
2014 WL 222760, at *14; see also Stratton v. Astrue, No. 11-CV-256-PB, 2012 WL 1852084, at
*12 (D.N.H. May 11, 2012) (“The basic principle behind SSR 96-6p is that while an ALJ is
capable of reviewing records to determine whether a claimant’s ailments meet the Listings,
expert assistance is crucial to an ALJ’s determination of whether a claimant’s ailments are
equivalent to the Listings.” (internal quotation marks omitted)).
The “Disability Determination and Transmittal” form, however, creates enough
ambiguity to remove the medical-equivalence issue from the realm of “readily discernible legal
error.” Cf. Brown, 2014 WL 222760, at *13. That form is signed by Dr. Gupta and identifies as
primary diagnoses “Disorders of Back[;] Discogenic & Degenerative.” (Tr. 92, 93.) And Social
Security Ruling 96-6p provides: “The signature of a State agency medical or psychological
consultant on an SSA–831–U5 (Disability Determination and Transmittal Form) . . . ensures that
consideration by a physician (or psychologist) designated by the Commissioner has been given

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to the question of medical equivalence at the initial and reconsideration levels of administrative
review.” SSR 96–6p, 1996 WL 374180, at *3 (1996). Thus, according to SSR 96-6p, it should be
the case that Dr. Gupta made a finding on medical equivalence even though, as stated, the
Disability Determination Explanation indicates that he only performed a residual functional
capacity assessment. At a minimum, the record presents no clear answer to this question, so the
Court cannot say that there is an obvious legal error.
Thus, upon conducting a review of the ALJ’s findings for obvious error and finding none,
the Court will AFFIRM the decision of the Commissioner.
SO ORDERED
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE
Dated: March 18, 2016

CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing document was served on the attorneys
and/or parties of record by electronic means or U.S. Mail on March 18, 2016.
s/Jane Johnson
Case Manager to
Honorable Laurie J. Michelson

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