Castle v. Social Security

Filing 22

ORDER Adopting Report and Recommendation 18 granting deft's 16 Motion for Summary Judgment and denying pltf's 14 Motion for Summary Judgment; and affirming decision of commissioner. Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KAYLEE A. CASTLE,
Plaintiff,
v.

CASE NO. 15-11021

COMMISSIONER OF
SOCIAL SECURITY,

DISTRICT JUDGE NANCY G. EDMUNDS

Defendant.
___________________________/
OPINION AND ORDER DENYING PLAINTIFF’S OBJECTIONS TO MAGISTRATE
JUDGE'S REPORT AND RECOMMENDATION [20]; ADOPTING THE REPORT AND
RECOMMENDATION [18]; DENYING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT [14]; GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
[16] AND AFFIRMING THE COMMISSIONER'S DECISION
This matter is before the Court on Plaintiff's objections to the magistrate judge's
report and recommendation. (Docket nos. 18, 20, 21.) Having conducted a de novo review
of the parts of the magistrate judge's report and recommendation to which objections have
been filed pursuant to 28 U.S.C. § 636(b)(1), and for the reasons set forth therein and
below, the Court denies Plaintiff's objections, adopts the magistrate judge's report and
recommendation, denies Plaintiff's motion for summary judgment and grants Defendant
Commissioner of Social Security's motion for summary judgment, affirming the
Commissioner's decision in accordance with 42 U.S.C. § 405(g).
Plaintiff protectively filed for Child Disability Insurance Benefits (CIB) on July 2, 2012,
and protectively filed an application for Supplemental Security Income (SSI) on August 1,
2012, alleging a disability onset date of January 1, 2008, in each application. (Dkt. no. 11,
Transcript 45, 98-101.) Plaintiff's SSI claim was initially denied on the basis of excess

resources. (Tr. 98-101). Her CIB claim was also initially denied on October 2, 2012. (Tr. 4555, 56-59.) She requested a hearing before an administrative law judge (ALJ) and
subsequently reapplied for SSI. (Tr. 108-13.) The hearing was held on September 10,
2013. (Tr. 11, 26.) Prior to the hearing, Plaintiff amended her alleged onset date of disability
to December 14, 2010. (Tr. 11, 163.) In a decision dated November 15, 2013, the ALJ
determined that Plaintiff had not been disabled within the meaning of the Social Security
Act at any time from July 2, 2012, through the date of the decision. (Tr. 11-21.)
On January 20, 2015, the appeals council denied Plaintiff's request for review of the
ALJ's decision. (Tr. 1-5.) Plaintiff filed with this Court on March 18, 2015. (Dkt. 1.) Plaintiff
filed a motion for summary judgment on August 3, 2015. (Dkt. 14.) Defendant filed a motion
for summary judgment on October 2, 2015. (Tr. 16.) The magistrate judge entered a report
and recommendation on January 19, 2016, recommending denying Plaintiff's motion for
summary judgment. (Dkt. no. 18.) Plaintiff filed objections to the report and
recommendation on February 8, 2016, and Defendant filed its response to the objections
on February 16, 2016. (Dkt. nos. 20, 21.)
The Court has reviewed the pleadings, including the ALJ's decision, the record
transcript, the magistrate judge's report and recommendation and the objections and
response. The ALJ's findings and the pertinent portions of the administrative record are
accurately and adequately set forth in the magistrate judge's report and recommendation
as necessary to the analysis, and the Court adopts them here. (Report and
Recommendation, dkt. no. 18.) The Court agrees with the magistrate judge.

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I.

Standard of Review
Where a party has properly objected to a magistrate judge's report and

recommendation, the "district judge must determine de novo any part of the magistrate
judge's disposition that has been properly objected to. The district judge may accept, reject,
or modify the recommended disposition; receive further evidence; or return the matter to
the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3). Pursuant to 42 U.S.C. §
405(g), this Court has jurisdiction to review the Commissioner’s final decisions. "This court
must affirm the Commissioner's conclusions absent a determination that the Commissioner
has failed to apply the correct legal standards 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). Substantial evidence is “more than a scintilla . . . 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)(quoting Cutlip v. Sec’y of Health and Human Servs., 25 F.3d 284, 286 (6th Cir.
1994)); see also Richardson v. Perales, 402 U.S. 389, 401 (1971)(quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Walters, 127 F.3d at 528. It is not the
function of this Court to try cases de novo, resolve conflicts in the evidence or decide
questions of credibility. See Brainard v. Sec’y of Health and Human Servs., 889 F.2d 679,
681 (6th Cir. 1989); Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). If the
Commissioner’s decision is supported by substantial evidence, it must be affirmed, even
if the reviewing court would decide the matter differently, Kinsella v. Schweiker, 708 F.2d
1058, 1059 (6th Cir. 1983), and even if substantial evidence also supports another
conclusion. See Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th
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Cir. 1999).
As an initial matter, Defendant respectfully requests that the Court set forth the
applicable sequential analysis for the case at bar. The magistrate judge's report and
recommendation recites the three-step evaluation process necessary for the children's
disability determination, yet the five-step sequential evaluation applies in the instant case
where Plaintiff's CIB claim arises under 20 C.F.R. § 404.350(a)(5). See 20 C.F.R. §
404.1520(a)(2); see also Beasich v. Comm'r of Soc. Sec., 66 Fed. Appx. 419, 427-28 (3d
Cir. 2003) (applying five-step sequential inquiry to determine whether the plaintiff was
disabled prior to his twenty-second birthday); Ricci v. Apfel, 159 F. Supp. 2d 12, 16 (E.D.
Pa. 2001) ("An ALJ considering a claim for disability insurance benefits undertakes the
five-step sequential evaluation set forth in 20 C.F.R. § 404.1520."); 42 U.S.C. 402(d); 42
U.S.C. 423(d).
Plaintiff's Social Security disability determination is to be made through the
application of a five-step sequential analysis:
Step One: If the claimant is currently engaged in substantial gainful activity,
benefits are denied without further analysis.
Step Two: If the claimant does not have a severe impairment or combination
of impairments that "significantly limits . . . physical or mental ability to do
basic work activities," benefits are denied without further analysis.
Step Three: If the claimant is not performing substantial gainful activity, has
a severe impairment that is expected to last for at least twelve months, and
the severe impairment meets or equals one of the impairments listed in the
regulations, the claimant is conclusively presumed to be disabled regardless
of age, education or work experience.
If the impairment does not meet or equal one of the listed impairments, a
finding is made regarding the claimant's residual functional capacity (RFC)
"based on all the relevant medical and other evidence" in the case record. It
is this RFC which is used to make determinations at steps four and five.
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Step Four: If the claimant is able to perform his or her past relevant work,
benefits are denied without further analysis.
Step Five: Even if the claimant is unable to perform his or her past relevant
work, if other work exists in the national economy that plaintiff can perform,
in view of his or her age, education, and work experience, benefits are
denied.
See 20 C.F.R. §§ 404.1520; 416.920; see also Heston v. Comm'r of Soc. Sec., 245 F.3d
528, 534 (6th Cir. 2001). "If the Commissioner makes a dispositive finding at any point in
the five-step process, the review terminates." Colvin v. Barnhart, 475 F.3d 727, 730 (6th
Cir. 2007). Despite recitation of the three-step disability analysis, the magistrate judge's
analysis reflects application of the correct five-step evaluation process. (Dkt. 18, Report
and Recommendation 3-4, citing ALJ's determinations at steps one through five of five-step
sequential evaluation.)
II.

Plaintiff's Objections
Plaintiff objects that the ALJ's residual functional capacity (RFC) is not supported by

substantial evidence because it does not include restrictions related to interruptions in
Plaintiff's workday or workweek, including the need to take extra breaks or extra time off
task; Plaintiff argues that such limitations are supported by the opinions of treating
psychiatrist C.A.N. Rao, M.D., and state agency psychological consultant Barbara Jones
Smith, Ph. D. (Tr. 50-52; 518-20.)
The ALJ's RFC limits Plaintiff to performing
[A] full range of work at all exertional levels but with the following nonexertional limitations: She can perform simple, routine, and repetitive tasks
with minimal changes in a routine work setting and no production rate pace
work; and she can occasionally interact with supervisors, but she should
have no more than minimal, superficial interaction with co-workers or the
general public.
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(Tr. 15.)
To the extent that Plaintiff relies on Dr. Rao's opinion that Plaintiff was markedly
limited in her ability to perform activities within a schedule, maintain regular attendance and
be punctual within customary tolerances, the ALJ did not give controlling weight to Dr.
Rao's opinion. (Tr. 18, 519.) The magistrate judge found that the ALJ gave good reasons
for her decision to give little weight to Dr. Rao's July 2013 opinion, including the
supportability and consistency of the opinion with Dr. Rao's records and other evidence of
record. See 20 C.F.R. §§ 404.1527(c), 416.927(c); (Report and Recommendation 5-7; Tr.
16-18).
Despite Plaintiff's objection that Dr. Smith's September 2012 opinion notes that
Plaintiff is moderately limited in her ability to complete a normal workday and workweek,
Dr. Smith's overall opinion was that Plaintiff retained the ability to "perform step one/two
tasks on a sustained basis." (Tr. 52.) Dr. Smith opined that Plaintiff is "not significantly
limited" in the "ability to perform activities within a schedule, maintain regular attendance,
and be punctual within customary tolerances," nor is she significantly limited in the "ability
to carry out very short and simple instructions." (Tr. 50-51.) The RFC is supported by and
consistent with the opinion of Dr. Smith, which the ALJ assigned significant weight.
It is worth noting that both Dr. Rao's and Dr. Smith's opinions show that as the
complexity of the instructions and work increases, Plaintiff's limitations increase. Dr. Rao's
opinion notes that Plaintiff was only moderately limited in the "ability to sustain an ordinary
routine without special supervision," "maintain attention and concentration for extended
periods," and "carry out very short and simple instructions." (Tr. 518-20.) Yet she was
markedly limited in the ability to carry out detailed instructions. (Tr. 519.) Like Dr. Rao's
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opinion, Dr. Smith's opinion indicates that Plaintiff is less limited in carrying out short,
simple instructions and an ordinary routine, than in carrying out detailed instructions. (Tr.
50.) The ALJ's RFC limiting Plaintiff to "simple, routine, and repetitive tasks" with "minimal
changes" in routine work and "no production rate pace work" is supported by substantial
evidence in the record, including Dr. Smith's opinion. The ALJ's RFC was supported by
substantial evidence and she properly explained the basis for the RFC.
Next, Plaintiff objects that the magistrate judge and the ALJ erred in noting that
Plaintiff had improvement with treatment, arguing that this was simply an indication of an
"ebb and flow of Plaintiff's symptoms." (Pl.'s Objections 5, dkt. 20.) Plaintiff argues that "the
question should not be 'is there improvement' but 'is there improvement to a functioning
level'". (Pl.'s Objections 4, dkt. 20.) In evaluating symptoms, the ALJ is tasked with, among
other elements, considering evidence or information of "what may precipitate or aggravate
. . . symptoms, what medications, treatments or other methods . . . [are] use[d] to alleviate
them, and how the symptoms may affect [the] pattern of daily living." See 20 C.F.R. §§
404.1529, 416.929. The Regulations provide that factors relevant to symptoms include
"daily activities," precipitating and aggravating factors, and the "type, dosage, effectiveness,
and side effects of any medication you take or have taken to alleviate your pain or other
symptoms." See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (emphasis added). The ALJ
did not err in finding that Plaintiff's symptoms were responsive to treatment, including
medication, and pointing out evidence in the record that substantially supports this finding.
A review of the record and the ALJ's decision shows that the ALJ did not simply cherry-pick
evidence in support of her findings, but also noted areas of limitation. Plaintiff reported
difficulty with crowds and dealing with customers, and the ALJ's RFC limits such contact
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to "minimal" and "superficial." (Tr. 15-16.) Yet the ALJ also correctly pointed out that
Plaintiff engages in multiple activities that involve some contact with the public, and visits
with friends and family, including shopping, bowling, and visiting her boyfriend's family.
(Tr. 17, 500, 501, 507.) Nor did the ALJ overstate Plaintiff's continued schooling, identifying
it as "online courses" and noting the reasons that she had discontinued traditional schooling
after tenth grade. (Tr. 16.)
Plaintiff argues that the magistrate judge and ALJ noted that she was getting along
with her grandmother, yet failed to "note Plaintiff recently moved in with her grandmother
because she got into a fight with her parents and was required to leave their home." (Pl.'s
Objections 5.) The record contains Plaintiff's report that she was "getting along with her
grandma," and the magistrate judge's notation of the same, yet contrary to Plaintiff's
objection, the Court is unable to find the ALJ's citation to the same. In support of her
decision, the ALJ relied on several other reports of Plaintiff's daily activities and social
interactions, and the Court finds no error in the failure to omit Plaintiff's report that she was
living with her grandmother and it was "going all right" or the report that she "got into an
argument with [her] parents and moved to [her] grandma's." (Tr. 513.) The ALJ cited other
evidence of stressful interactions within the family, including Plaintiff's mother's report that
Plaintiff sometimes loses her temper when overwhelmed or stressed and that she has a
difficult time being around a lot of people, even her own family. (Tr. 18-19.)
In support of her argument that the evidence merely shows an ebb and flow of
symptoms, Plaintiff cites a March 6, 2013 treatment record, completed by staff person
Tiffany Dawkins, allegedly reporting that Plaintiff was having trouble going out in public and
had made little progress with treatment. (Pl.'s Objections 5 citing tr. 509.) While the
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document reports that Plaintiff has made "a little progress," the notation regarding going
into public does not appear at the cited page. Yet a "PCP Periodic Review" by Kris
Wheeler, MSW, LMSA, signed on March 13, 2013, notes that Plaintiff "stated that she was
having trouble going in public and being around people. Since entering services Kaylee
feels more comfortable going in public and being around people. Kaylee often goes out
shopping and socializes with friends in public." (Tr. 507.) Finally, Plaintiff objects that the
record does not show improvement because Dr. Rao's March 2013 medication review
record includes the notation that Plaintiff "mainly reports that she does have some
problems controlling her mood at times" and he increased Plaintiff's medication. (Tr. 16,
513.) Yet the ALJ both considered and cited this treatment record, and noted that the later
May 2013 treatment record showed an improved mood and the medications were
continued from the April review without alteration. (Tr. 16.)
"The substantial evidence standard presupposes that there is a ‘zone of choice'
within which the Commissioner may proceed without interference from the courts." Felisky
v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994)(citing Mullen v. Bowen, 800 F.2d 535, 545
(6th Cir. 1986)(en banc)(citations omitted)). The ALJ properly considered the evidence of
record, explained her decision, and the ALJ's decision was supported by substantial
evidence in the record. The Court does not find error in the magistrate judge's report and
recommendation.
III.

Conclusion
For the foregoing reasons, the Court DENIES Plaintiff's Objections (dkt. no. 20),

ADOPTS the Magistrate Judge's Report and Recommendation (dkt. no. 18), DENIES
Plaintiff's Motion for Summary Judgment (dkt. no. 14), GRANTS Defendant's Motion for
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Summary Judgment (dkt. no. 16) and AFFIRMS the decision of the Commissioner pursuant
to 42 U.S.C. § 405(g).
SO ORDERED.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: March 18, 2016
I hereby certify that a copy of the foregoing document was served upon counsel of record
on March 18, 2016, by electronic and/or ordinary mail.
s/Carol J. Bethel
Case Manager

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