Gilbert v. Social Security, Commissioner of

Filing 17

OPINION AND ORDER Adopting 14 Report and Recommendation, Denying 11 Motion for Summary Judgment filed by George Gilbert, and Granting 13 Motion for Summary Judgment filed by Commissioner of Social Security. Signed by District Judge David M. Lawson. (SPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GEORGE GILBERT,
Plaintiff,
v.

Case Number 15-11325
Honorable David M. Lawson
Magistrate Judge Mona K. Majzoub

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________/
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION, OVERRULING PLAINTIFF’S OBJECTIONS,
DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT,
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT,
AFFIRMING THE FINDINGS OF THE COMMISSIONER,
AND DISMISSING COMPLAINT
The plaintiff filed the present action on April 10, 2015 seeking review of the Commissioner’s
decision denying the plaintiff’s claims for a period of disability, disability insurance benefits and
supplemental security income under Titles II and XVI of the Social Security Act, respectively. The
case was referred to United States Magistrate Judge Mona K. Majzoub pursuant to 28 U.S.C. §
636(b)(1)(B) and E.D. Mich. LR 72.1(b)(3). Thereafter, the plaintiff filed a motion for summary
judgment to reverse the decision of the Commissioner and remand the case for further consideration
by the administrative law judge. The defendant filed a motion for summary judgment requesting
affirmance of the decision of the Commissioner. Magistrate Judge Majzoub filed a report on April
29, 2016 recommending that the defendant’s motion for summary judgment be granted, the
plaintiff’s motion for summary judgment be denied, and the decision of the Commissioner be
affirmed. The plaintiff filed timely objections to the recommendation and the defendant filed a
response. This matter is now before the Court.

The filing of timely objections to a report and recommendation requires the court to give
fresh review “of those portions of the report or specified findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667 (1980);
United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This de novo review requires the court to
re-examine all of the relevant evidence previously reviewed by the magistrate judge in order to
determine whether the recommendation should be accepted, rejected, or modified in whole or in
part. 28 U.S.C. § 636(b)(1).
“The filing of objections provides the district court with the opportunity to consider the
specific contentions of the parties and to correct any errors immediately,” Walters, 638 F.2d at 950,
enabling the court “to focus attention on those issues-factual and legal-that are at the heart of the
parties’ dispute,” Thomas v. Arn, 474 U.S. 140, 147 (1985). As a result, “‘[o]nly those specific
objections to the magistrate’s report made to the district court will be preserved for appellate review;
making some objections but failing to raise others will not preserve all the objections a party may
have.’” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (quoting Smith v.
Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987)).
The Court has reviewed the file, the report and recommendation, the plaintiff’s objections,
and the defendant’s response to plaintiff’s objections and has made a de novo review of the
administrative record in light of the parties’ submissions.
The plaintiff, who is now 58 years old, filed his protective applications for disability
insurance benefits and supplemental security income on November 29, 2011, when he was 53. The
plaintiff completed the ninth grade and previously worked as a fork lift operator, janitor, furniture
refinisher, and laborer. In his original applications to the Social Security Administration, the

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plaintiff alleged a disability onset date of June 30, 2010. However, at the administrative hearing,
the plaintiff amended his applications to request a closed period of disability from August 2010 to
September 1, 2012, because he acknowledged engaging in substantial gainful activity after that date.
The plaintiff has been diagnosed with hypertension, chronic obstructive pulmonary disease, bipolar
disorder, alcoholism, a neck disorder, and a knee disorder.
The plaintiff’s applications for disability insurance benefits and supplemental security
income were denied initially on March 14, 2012. The plaintiff timely filed a request for an
administrative hearing, and on July 18, 2013, the plaintiff appeared before Administrative Law
Judge (ALJ) Ethel Revels for an administrative hearing. On September 26, 2013, ALJ Revels issued
a written decision in which she found that the plaintiff was not disabled. On February 26, 2015, the
Appeals Council denied the plaintiff’s request for review of the ALJ’s decision. The plaintiff filed
his complaint seeking judicial review on April 10, 2015.
ALJ Revels reached her conclusion that the plaintiff was not disabled by applying the fivestep sequential analysis prescribed by the Secretary in 20 C.F.R. §§ 404.1520; 416.920. She found
that the plaintiff had not engaged in substantial gainful activity during a period from August 2010
to August 2012 (step one); the plaintiff suffered from hypertension, chronic obstructive pulmonary
disease, bipolar disorder, alcoholism, a neck disorder, and a knee disorder, impairments which were
“severe” within the meaning of the Social Security Act (step two); none of those impairments alone
or in combination met or equaled a listing in the regulations (step three); and the plaintiff could not
perform his previous work, which the ALJ found was variously unskilled or semi-skilled, and
required light to very heavy exertion (step four).

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In applying the fifth step, the ALJ concluded that the plaintiff had the residual functional
capacity to perform a limited range of medium exertion work as defined in 20 C.F.R. §§
404.1567(b), 416.967(b), with the following restrictions: no more than simple, routine, and repetitive
tasks; clean air work environment; no providing service to the general public; and only occasional
interaction with co-workers and supervisors.
A vocational expert testified that the nonexertional limitations restricting the plaintiff to a
relatively clean air environment and limiting interaction with co-workers precluded work at the
medium exertion level. Nonetheless, the vocational expert classified the work the plaintiff was then
engaged in, a small products packager, at the medium unskilled level. The vocational expert
testified that the plaintiff would be able to perform the requirements of representative occupations
in the regional and national economies such as hand packer (2,500 jobs regionally and 100,000 jobs
nationally), small product assembler (2,500 jobs regionally), and visual inspector (1,000 jobs
regionally and 80,000 jobs nationally), all jobs within the light exertion level. Based on those
findings, the ALJ concluded that the plaintiff was not disabled within the meaning of the Social
Security Act.
First Objection
The plaintiff framed the first issue in his summary judgment brief as a failure of the ALJ to
give proper weight to the opinion of the plaintiff’s treating physician, citing 20 C.F.R. §§
404,1527(d)(2), 416.927(d)(2) [sic] (the “treating physician rule” regulations were renumbered 20
C.F.R. §§ 404.1527(c), 416.927(c)). The plaintiff made specific reference to the records of Team
Mental Health, citing pages 288 through 331 of the administrative record. That documentation
consists of treatment notes from the plaintiff’s treating psychologist and therapist from November

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9, 2011 to March 13, 2013. He argues that the documentation shows that despite extensive medical
treatment, the plaintiff experienced symptom magnification of anxiety as well as depression in
addition to hearing voices and seeing hallucinations. The plaintiff argues that the ALJ failed to give
good reasons why she did not give weight to or even consider the Team Mental Health
documentation, and that the magistrate judge erred when she rejected the plaintiff’s argument.
It is true that the Sixth Circuit has held that reversal is required in a Social Security disability
benefits case where the ALJ rejects a treating physician’s opinion as to the restrictions on a
claimant’s ability to work and fails to give good reasons for not giving weight to the opinion.
Wilson v. Comm’r of Social Sec., 378 F.3d 541, 544 (6th Cir. 2004). In Wilson, the court stated that
“pursuant to [20 C.F.R. § 404.1527(c)(2)], a decision denying benefits ‘must contain specific
reasons for the weight given to the treating source’s medical opinion, supported by the evidence in
the case record, and must be sufficiently specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source’s medical opinion and the reasons for that
weight.’” Id. at 544 (quoting Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *5 (1996). The error is not
harmless when the reviewing court is hampered by the lack of explanation and the rejected evidence
could very well establish disability.
However, the treating physician rule must be read in conjunction with the definition of
“medical opinions” in the regulations. The Secretary has explained that “[m]edical opinions are
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). The treatment notes cited by the plaintiff contain

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virtually no reference to any “judgments about the nature and severity of [the plaintiff’s]
impairment(s),” and no discussion about “what [he] can still do despite impairment(s), and [his]
physical or mental restrictions.”
The plaintiff argues that all of that can be inferred from the report of his global assessment
of functioning (GAF) score. The GAF scale is reflected in Axis V of a differential diagnosis. “Axis
V is for reporting the clinician’s judgment of the individual’s overall level of functioning. This
information is useful in planning treatment and measuring its impact, and in predicting outcome.
The reporting of overall [psychological, social, and occupational] functioning on Axis V is done
using the Global Assessment of Functioning (GAF) Scale.” See American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders – Text Revision 34 (DSM-IV-TR), 30 (4th
ed. 2000). But GAF scores are “not raw medical data,” Kennedy v. Astrue, 247 F. App’x 761, 766
(6th Cir. 2007), and “the Commissioner has declined to endorse the [GAF] score for use in” Social
Security benefits programs, Lee v. Comm’r of Soc. Sec., 529 F. App’x 706, 716 (6th Cir. 2013)
(quoting DeBoard v. Comm’r of Soc. Sec., 211 F. App’x 411 (6th Cir. 2006)). And the Sixth Circuit
has refused in the past to find that a low GAF score established that the ALJ’s decision was not
supported by substantial evidence where the GAF scores were not accompanied by a suggestion that
the claimant could not perform any work; substantial evidence supported the conclusion that the
claimant was not disabled; and the VE testified that an individual with the claimant’s limitations
could still perform a number of jobs. See Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 511
(6th Cir. 2006).
The treatment notes provide no insight into the plaintiff’s specific limitations. They provide
a diagnosis, but that furnishes little help here in determining how the plaintiff’s impairments impact

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his ability to work. They do not help in the determination of the plaintiff’s RFC. RFC is an
“assessment of [the claimant’s] remaining capacity for work,” once his limitations have been
considered. 20 C.F.R. §§ 404.1545(a), 416.945(a). It is meant “to describe the claimant’s residual
abilities or what the claimant can do, not what maladies a claimant suffers from — though the
maladies will certainly inform the ALJ’s conclusion about the claimant’s abilities.” Howard v.
Comm’r of Soc. Sec., 276 F.3d 235, 240 (6th Cir. 2002). The plaintiff has not explained otherwise
how the treatment notes are necessarily inconsistent with the ALJ’s mental RFC determination that
he is limited to simple, routine, and repetitive tasks, cannot provide service to the general public,
and cannot have more than occasional interaction with co-workers and supervisors.
The ALJ’s discussion of the records from Team Mental Health was adequate in the context
of the record as a whole. The plaintiff’s first objection will be overruled.
Second Objection
The plaintiff contends that the magistrate judge erred when she held that the ALJ’s mental
and physical RFCs were supported by substantial evidence. The plaintiff notes that the ALJ agreed
that he could not perform past relevant work and listed his restrictions. But his argument consists
only of the observation that his “ability to work has been severely over-estimated.” Obj. [dkt. #15]
at 5.
The Commissioner’s findings are conclusive if they are supported by substantial evidence.
42 U.S.C. § 405(g). Substantial evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). See
also Lashley v. Sec’y of Health & Human Servs., 708 F.2d 1048, 1053 (6th Cir. 1983). The
reviewing court must affirm the Commissioner’s findings if they are supported by substantial

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evidence and the Commissioner employed the proper legal standard. Elam ex rel. Golay v. Comm’r
of Soc. Sec., 348 F.3d 124, 125 (6th Cir. 2003); Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528
(6th Cir. 1997). This Court may not base its decision on a single piece of evidence and disregard
other pertinent evidence when evaluating whether substantial evidence in the record exists. Hephner
v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). Thus, where the Commissioner’s decision is
supported by substantial evidence, it must be upheld even if the record might support a contrary
conclusion. Smith v. Sec’y of Health & Human Servs., 893 F.2d 106, 108 (6th Cir. 1989). The
substantial evidence standard “presupposes that there is a zone of choice within which
decisionmakers can go either way, without interference from the courts.” Mullen v. Bowen, 800
F.2d 535, 545 (6th Cir. 1986) (en banc) (internal quotes and citations omitted).
When deciding under 42 U.S.C. § 405(g) whether substantial evidence supports the ALJ’s
decision, the Court “may not try the case de novo, nor resolve conflicts in evidence, nor decide
questions of credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984); see also Jordan v.
Comm’r of Soc. Sec., 548 F.3d 417, 422 (6th Cir. 2008); Smith v. Halter, 307 F.3d 377, 379 (6th Cir.
2001). Instead, the Court must uphold “the ALJ’s decision if there is ‘such relevant evidence as a
reasonable mind might accept’ as sufficient to support the ALJ’s conclusion.” Bass v. McMahon,
499 F.3d 506, 509 (6th Cir. 2007) (quoting Foster v. Halter, 279 F.3d 348, 353 (6th Cir.2001
(citation omitted)). “The substantial evidence standard is less exacting than the preponderance of
evidence standard.” Ibid. (citing Bell v. Comm’r of Soc. Sec., 105 F.3d 244, 246 (6th Cir. 1996).
If the ALJ’s decision is supported by substantial evidence, reversal would not be warranted even if
substantial evidence supports the opposite conclusion. Longworth v. Comm’r of Soc. Sec., 402 F.3d
591, 595 (6th Cir. 2005).

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The magistrate judge discussed the medical evidence in the administrative record and
concluded that the ALJ properly relied on the opinions of psychological consultant Dr. Hugh Bray.
That opinion adequately supports the ALJ’s RFC determination. The plaintiff has not explained how
reliance on that opinion was improper, and he certainly has not developed the statement in his
objection that his RFC was “over-estimated.” After conducting fresh review, the Court believes that
substantial evidence supports the ALJ’s findings.
After a de novo review of the entire record and the materials submitted by the parties, the
Court concludes that the magistrate judge properly reviewed the administrative record and applied
the correct law in reaching her conclusion. The Court has considered the plaintiff’s objections to
the report and finds them to lack merit.
Accordingly, it is ORDERED that the magistrate judge’s report and recommendation [dkt.
#14] is ADOPTED.
It is further ORDERED that the plaintiff’s objections [dkt. #15] are OVERRULED.
It is further ORDERED that the plaintiff’s motion for summary judgment [dkt. #11] is
DENIED.
It is further ORDERED that the defendant’s motion for summary judgment [dkt #13] is
GRANTED. The findings of the Commissioner are AFFIRMED.

s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: August 1, 2016

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PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on August 1, 2016.
s/Susan Pinkowski
SUSAN PINKOWSKI

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