Herron v. Social Security

Filing 23

ORDER ACCEPTING 20 REPORT AND RECOMMENDATION and DISMISSING ACTION. Signed by District Judge Denise Page Hood. (DPar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SHERRY LYNN HERRON,
Plaintiff,
v.

Case No. 15-11825
Hon. Denise Page Hood

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
/
ORDER ACCEPTING REPORT AND RECOMMENDATION
and
DISMISSING ACTION
This matter is before the Court on Magistrate Judge R. Steven Whalen’s
Report and Recommendation. [Doc. No. 19, filed May 20, 2015] Plaintiff filed
timely objections to the Report and Recommendation, and the Commissioner filed
a response to the objections. [Doc. Nos. 21 and 22]
Judicial review of the Commissioner’s decision is limited in scope to
determining whether the Commissioner employed the proper legal criteria in
reaching his conclusion. Garner v. Heckler, 745 F.2d 383 (6th Cir. 1984). The
credibility findings of an administrative law judge (“ALJ”) must not be discarded
lightly and should be accorded great deference. Hardaway v. Secretary of Health
and Human Services, 823 F.2d 922, 928 (6th Cir. 1987). A district court’s review
of an ALJ’s decision is not a de novo review. The district court may not resolve

conflicts in the evidence nor decide questions of credibility. Garner, 745 F.2d at
397. The decision of the Commissioner must be upheld if supported by substantial
eidence, even if the record might support a contrary decision or if the district court
arrives at a different conclusion. Smith v. Sec’y of HHS, 893 F.2d 106, 108 (6th
Cir. 1984); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986). The Court has
had an opportunity to review this matter and finds that the Magistrate Judge
reached the correct conclusions for the proper reasons.
The Court now turns to Plaintiff’s objections to the Magistrate Judge’s
conclusion that the Administrative Law Judge (“ALJ”) properly evaluated the
medical opinions in the record, especially treating physician Dr. Predetenau’s
opinion. Plaintiff first contests the Magistrate Judge’s finding that the ALJ could
base his conclusions, in part, on Plaintiff’s ability “to engage in a wide variety of
daily activities,” including “caring for her personal needs, performing light
housekeeping chores, attend church, use a computer, and attend AA meetings.”
Although Plaintiff argues that those activities are occasional, are not strenuous and
do not correspond to having the capacity to work, an ALJ may consider Plaintiff’s
daily activities when evaluating her claim. 20 C.F.R. §§ 404.1529(c)(3)(i),
416.927(c)(3)(i); Blacha v. Sec’y of HHS, 927 F.2d 228, 231 (6th Cir. 1990) (“As a
matter of law, an ALJ may consider household and social activities in evaluating
complaints of disabling pain.”). And, based on the ALJ’s decision, it is clear that
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Plaintiff’s daily activities were only a factor in determining that Dr. Predetenau’s
opinion was entitled only to moderate weight rather than controlling weight. The
Court also agrees with the Magistrate Judge and the ALJ that Dr. Predetenau’s
opinion that Plaintiff needed to rest for 20 minutes per hour was inconsistent with
his treatment notes, including his August 2012 recommendation that Plaintiff
increase her physical activity.
Plaintiff next argues that the fact that she engaged in part-time work (about
10 hours per week) did not justify relying on a non-examining physician’s
assessment because it was not “substantial gainful activity.” Plaintiff does not cite
any authority to support the proposition that an ALJ cannot consider nonsubstantial gainful activity when determining whether she can engage in substantial
gainful activity. Courts have held that the ALJ can consider work activity, even if
it is not substantial gainful activity. See, e.g., Mullis v. Bowen, 861 F.2d 991, 993
(6th Cir. 1988) (“Any work done during a period of claimed disability may show
that a claimant can engage in substantial gainful activity”); Tate v. Comm’r of Soc.
Sec., 2014 WL 4536929, at *22 (E.D. Mich. Sept. 11, 2014) (an ALJ can consider
work activity that is not substantial gainful activity).
Plaintiff contends that the Magistrate Judge erroneously concluded that it
was permissible for the ALJ to rely on the opinions of a non-treating physician, Dr.
Gupta. As discussed above, if the treating physician’s opinion is not supported by
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the record, an ALJ may give weight, even more weight, to a consulting physician.
See, e.g., Dyer v. SSA, 568, F. App’x 422, 428 (6th Cir. 2014). See also SSR 96-6p,
1996 WL 374180, at *3); Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 279-80
(6th Cir. 2014); Preston v. Comm’r of Soc. Sec., 2013 WL 3944419, at *6 (E.D.
Mich. July 31, 2013) (“Opinions from nonexamining sources can be afforded
greater weight than treating and examining sources.”).
For all of the reasons set forth above, and because the ALJ provided good
reasons for his conclusion of non-disability, the Court is not persuaded that
Plaintiff’s objection has merit and overrules Plaintiff’s objections. The Court
accepts the Magistrate Judge’s Report and Recommendation as this Court’s
findings of fact and conclusions of law.
For the reasons set forth above,
IT IS ORDERED that the Report and Recommendation of Magistrate Judge
R. Steven Whalen [Doc. No. 20, filed July 6, 2016] is ACCEPTED and
ADOPTED as this Court’s findings of fact and conclusions of law.
IT IS FURTHER ORDERED that Plaintiff’s Objections [Doc. No. 21,
filed July 20, 2016] are OVERRULED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary
Judgment [Doc. No. 17, filed November 20, 2015] is DENIED.

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IT IS FURTHER ORDERED that Defendant’s Motion for Summary
Judgment [Doc. No. 18, filed December 2, 2015] is GRANTED.
IT IS FURTHER ORDERED that this action is DISMISSED with
prejudice.
IT IS SO ORDERED.

s/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court

Dated: August 31, 2016
I hereby certify that a copy of the foregoing document was served upon counsel of
record on August 31, 2016, by electronic and/or ordinary mail.
s/LaShawn R. Saulsberry
Case Manager

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