Jackson v. Social Security, Commissioner of

Filing 24

ORDER Adopting Magistrate Judge's 19 Report and Recommendation. Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALMIRA L. JACKSON,
Plaintiff,
Case No. 14-13888
Hon. Gerald E. Rosen
Magistrate Judge Patricia T. Morris

v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
_______________________________/

ORDER ADOPTING
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
At a session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
on
March 25, 2016
PRESENT:

Honorable Gerald E. Rosen
United States District Judge

On July 22, 2015, Magistrate Judge Patricia T. Morris issued a Report and
Recommendation (“R & R”) recommending that the Court deny Plaintiff Almira
L. Jackson’s motion for summary judgment and grant the Defendant
Commissioner of Social Security’s motion for summary judgment. Plaintiff filed
objections to the R & R on August 4, 2015, and Defendant responded to these
objections on August 18, 2015. Upon reviewing the R & R, Plaintiff’s objections,
Defendant’s response, the parties’ underlying cross-motions for summary

judgment, and the record as a whole, the Court overrules Plaintiff’s objections and
adopts the R & R in its entirety.
Plaintiff’s five objections to the R & R largely reiterate the arguments
advanced in her underlying summary judgment motion, and the Court is satisfied
that the Magistrate Judge thoroughly addressed and correctly resolved each of
these points in the R & R. First, Plaintiff contends that the Administrative Law
Judge (“ALJ”) erred by characterizing one of her severe impairments as
“rheumatoid arthritis,” (see Admin. Record at 13), without specifying that this
condition affects her wrists. The Magistrate Judge, however, analyzed precisely
this issue in the R & R, (see R & R at 22-23), and Plaintiff fails to acknowledge,
much less identify any purported defects in, the Magistrate Judge’s treatment of
this issue. As Defendant observes, objections to an R & R must be directed
“specific[ally]” at the Magistrate Judge’s “proposed findings and
recommendations” in the R & R itself, Fed. R. Civ. P. 72(b)(2) , and not at the
ALJ’s decision. Otherwise, the initial reference of this matter to the Magistrate
Judge would be rendered “useless,” as this Court and the Magistrate Judge would
be compelled to “perform [the] identical tasks” of addressing each argument
advanced in Plaintiff’s underlying summary judgment motion. Howard v.
Secretary of Health & Human Services, 932 F.2d 505, 509 (6th Cir. 1991).
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Accordingly, the Court declines Plaintiff’s invitation to duplicate the Magistrate
Judge’s work as to the issue raised in Plaintiff’s first objection.1
Plaintiff next objects that the ALJ improperly failed to recognize at step two
of his analysis that Plaintiff’s carpal tunnel condition rose to the level of a severe
impairment. Again, the Magistrate Judge thoroughly addressed this issue, (see R
& R at 23-28), and Plaintiff has little to say about any purported flaws in this
analysis, as opposed to the ALJ’s underlying decision. To the extent that
Plaintiff’s objection can be viewed as directed at any aspect of the Magistrate
Judge’s ruling, she appears to complain that the Magistrate Judge, like the ALJ,
identified insufficient grounds for discounting the opinion of physician’s assistant
Cheryl Boyd. Because Plaintiff has raised this issue as a separate objection to the
R & R, the Court will return to this question below.
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Plaintiff complains that the Magistrate Judge faulted her for “citing no case law in
support of” the argument reiterated in her first objection to the R & R, (see R & R at 22),
when in fact she referred to a Social Security ruling and an unpublished district court
decision in her response in opposition to Defendant’s motion for summary judgment. As
observed by the Defendant Commissioner, however, these authorities do not bear on the
issue raised in Plaintiff’s summary judgment motion and analyzed by the Magistrate
Judge — namely, whether this Court’s review of the ALJ’s decision is hindered by the
ALJ’s purportedly “generalized” and “non-specific” step two finding that Plaintiff suffers
from rheumatoid arthritis, where the ALJ failed to expressly acknowledge in the step two
portion of his decision that this condition affects Plaintiff’s wrists. (See R & R at 22.)
More generally, the Magistrate Judge aptly noted that Plaintiff’s brief in support of her
summary judgment motion was wholly bereft of citation to any “case law whatsoever . . .
beyond that necessary to establish the standard of review,” (R & R at 22), and Plaintiff
does not (and cannot) dispute the accuracy of this observation.
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As her third objection to the R & R, Plaintiff contends that the Magistrate
Judge engaged in impermissible post hoc rationalization by discounting the
opinion of Cheryl Boyd on a ground not relied upon by the ALJ — namely, as
inconsistent with Plaintiff’s own account of her daily activities.2 In Plaintiff’s
view, the Magistrate Judge’s “redraft[ing]” of the ALJ’s decision, (see Plaintiff’s
8/4/2015 Objections at 7), runs afoul of the “fundamental rule of administrative
law” that a reviewing court must “judge the propriety of [an administrative
agency’s decision] solely by the grounds invoked by the agency,” and not “by
substituting what it considers to be a more adequate or proper basis.” SEC v.
Chenery Corp., 332 U.S. 194, 196, 67 S. Ct. 1575, 1577 (1947). Yet, in
determining whether substantial evidence supports a challenged finding by the
ALJ — here, the ALJ’s decision to discount the opinion of a physician’s assistant
— the Sixth Circuit has instructed that judicial review of this finding “must be
based on the record as a whole,” including those portions of the record that “the
ALJ failed to cite” in his decision. Heston v. Commissioner of Social Security,
245 F.3d 528, 535 (6th Cir. 2001). Thus, the Magistrate Judge properly looked to

2

In the course of this objection, Plaintiff criticizes the ALJ’s characterization of her
daily activities as “one-sided.” (Plaintiff’s 8/4/2015 Objections at 5.) Again, however,
Plaintiff’s objections to the R & R cannot serve as a forum for critiquing the ALJ’s
decision, but instead provide only an opportunity for identifying alleged defects in the
Magistrate Judge’s proposed findings and recommendations.
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the record as a whole, as opposed to engaging in post hoc rationalization, in
reviewing the ALJ’s decision to give little weight to the opinion of Cheryl Boyd.3
Next, Plaintiff squarely raises the objection that underlies most of her
challenges in this case, both in her underlying summary judgment motion and in
her objections to the R & R — namely, that the ALJ erroneously discounted the
opinion of physician’s assistant Cheryl Boyd. Plaintiff notes that the ALJ gave
three reasons for discounting this opinion, but she suggests that each of these
reasons is deficient in some way. First, she contends that the ALJ too readily
dismissed Ms. Boyd’s opinion on the ground that “a physician’s assistant is not an
acceptable medical source.” (Admin. Record at 19.) Yet, as explained by the
Magistrate Judge, (see R & R at 25), the ALJ did not altogether reject Ms. Boyd’s
opinion on this ground, but merely noted that this “other source” opinion could not
“establish the existence of a medically determinable impairment,” (Admin. Record
at 19). Following this observation — the accuracy of which Plaintiff does not

3

Apart from this substantial evidence challenge, Plaintiff’s objections could be
viewed as raising an additional claim that the ALJ failed to comply with the requirements
of Social Security Ruling 06-03p in determining the weight to be given to Ms. Boyd’s
opinion. (See Plaintiff’s 8/4/2015 Objections at 3-4.) If so, Defendant correctly points
out that because Plaintiff did not advance this argument in her underlying summary
judgment motion, she may not do so in the first instance in her objections to the
Magistrate Judge’s R & R. See Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir.
2000); Fielder v. Commissioner of Social Security, No. 13-10325, 2014 WL 1207865, at
*1 (E.D. Mich. March 24, 2014).
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challenge — the ALJ then proceeded to cite other factors that led him to conclude
that Ms. Boyd’s opinion should be given little weight. Plaintiff fails to suggest
anything improper in the ALJ’s accurate statement that a physician’s assistant is
not deemed an “acceptable medical source” under the pertinent Social Security
regulations.
Plaintiff next argues that the ALJ improperly relied on a negative inference
in noting the absence of an “electromyography or nerve conduction study” that
might have “demonstrate[d] neuropathy” or “justif[ied] manipulative limitations”
of the sort identified by Ms. Boyd. (Admin. Record at 19.) As the Defendant
Commissioner points out in response, however, the case law recognizes that “the
lack of treatment records” can serve as an appropriate basis for discounting the
opinion of a medical source. Jordan v. Commissioner of Social Security, No. 1011833, 2011 WL 891198, at *5 (E.D. Mich. Jan. 14, 2011), report and
recommendation adopted, 2011 WL 891240 (E.D. Mich. March 11, 2011).4 In
4

The cases cited by Plaintiff are not to the contrary. In one, the court found that the
ALJ had improperly relied on a negative inference “in the context of” applying a Social
Security Ruling that is not implicated in this case. Manson v. Commissioner of Social
Security, No. 12-11473, 2013 WL 3456960, at *9 (E.D. Mich. July 9, 2013). In the other,
the court held that the ALJ had improperly drawn a negative inference from the
claimant’s inability to obtain a supportive assessment from her treating physician,
explaining that under the circumstances “there [we]re a number of reasons why” the
claimant might have been unable to secure this assessment. Dent v. Astrue, No. 07-2238,
2008 WL 822078, at *19 (W.D. Tenn. March 26, 2008). Here, in contrast, Plaintiff does
not claim that the ALJ failed to consider possible explanations for the unavailability of
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addition, the ALJ pointed more generally to the inconsistency between Ms. Boyd’s
opinion and the medical record as a whole, citing the absence of two particular
sorts of supportive studies only as an example of the overall lack of evidentiary
support for Ms. Boyd’s findings. (See Admin. Record at 19.) Plaintiff does not
dispute that the ALJ was entitled to rely on the absence of supporting medical
evidence as an appropriate ground for discounting Ms. Boyd’s opinion.5
Plaintiff also takes issue with the third reason given by the ALJ for
discounting Ms. Boyd’s opinion — namely, that Ms. Boyd’s finding of “pain or
other symptoms . . . severe enough to interfere with the attention and concentration
needed to perform even simple tasks” was contradicted by Plaintiff’s own
statement “that she has no deficits in her memory or concentration.” (Admin.
Record at 19.) In Plaintiff’s view, the ALJ’s reasoning on this point is
inconsistent with the finding later in his decision that “a moderate limitation [in]
concentration, persistence and pace is warranted.” (Id. at 20.) This is another new
the studies mentioned in his decision.
5

To be sure, Plaintiff argues elsewhere in her objections that there was sufficient
evidence of “bilateral hand and wrist pain,” as well as treatments such as wrist splints and
medications, to lend support to the manipulative limitations identified by Ms. Boyd.
(Plaintiff’s 8/4/2015 Objections at 7.) As explained in the R & R, however, other medical
evidence in the record was inconsistent with Ms. Boyd’s assessment of Plaintiff’s
conditions and limitations. (See R & R at 26-27.) The ALJ was obligated to consider and
weigh the entirety of this record, and could rely on any resulting inconsistency as a basis
for discounting Ms. Boyd’s opinion.
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argument that Plaintiff failed to pursue in her underlying motion for summary
judgment. In any event, Plaintiff concedes that the ALJ himself addressed this
purported inconsistency in his decision, explaining that “[e]ven though the
claimant has reported no difficulty with memory or concentration, she has reported
fatigue as a side effect of her medication and stress from her domestic issues,
which could affect her focus.” (Id.) Plaintiff fails to explain why the ALJ’s
recognition of a moderate limitation to account for Plaintiff’s fatigue and stress
should preclude the ALJ from discounting the opinion of a physician’s assistant
that Plaintiff’s deficits in attention and concentration due to pain and other
symptoms were so severe as to interfere with her performance of even simple
tasks. Simply stated, there is nothing incompatible in these findings.
As her fifth and final objection, Plaintiff argues that the ALJ improperly
discounted the opinion of Dr. Alan Silber. The Magistrate Judge thoroughly
addressed this question in the R & R, (see R & R at 28-30), and Plaintiff once
again has failed to identify any alleged deficiencies in this analysis.6 As explained

6

Moreover, Plaintiff again seeks to raise new arguments in support of this
objection, contending (i) that the similarities in the opinions of Ms. Boyd and Dr. Silber
suggest — for reasons not explained by Plaintiff — that these opinions must be supported
by objective medical evidence; (ii) that Dr. Silber’s opinion is supported by evidence of
Plaintiff’s knee condition and the treatment provided for this condition; (iii) that this
opinion likewise is supported by evidence of Plaintiff’s decreased grip strength; and (iv)
that the ALJ failed to perform the treating source analysis called for under 20 C.F.R. §
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by the Magistrate Judge, Plaintiff’s mere citation to evidence that she suffers from
certain conditions and experiences pain during certain activities does not suffice as
the requisite objective evidence “demonstrating the allegedly disabling effects” of
Plaintiff’s conditions and pain. (R & R at 30.)
For these reasons,
NOW, THEREFORE, IT IS HEREBY ORDERED that Plaintiff’s August 4,
2015 objections (docket #20) to the Magistrate Judge’s R & R are OVERRULED,
and that the Magistrate Judge’s July 22, 2015 Report and Recommendation
(docket #19) is ADOPTED as the opinion of this Court. IT IS FURTHER
ORDERED, for the reasons stated in the R & R as supplemented by the rulings in
the present order, that Plaintiff’s February 3, 2015 motion for remand (docket #14)

404.1527(c) and the corresponding case law. The Court declines to address these issues
that were not presented for consideration by the Magistrate Judge.
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is DENIED, and that Defendant’s March 4, 2015 motion for summary judgment
(docket #17) is GRANTED.
s/Gerald E. Rosen
United States District Judge
Dated: March 25, 2016
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on March 25, 2016, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, [phone]

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