Push v. Commissioner of Social Security

Filing 26

ORDER denying 14 Motion for Summary Judgment; granting 15 Motion for Summary Judgment; adopting 19 Report and Recommendation on 14 Motion for Summary Judgment, 19 Report and Recommendation, 15 Motion for Summary Judgment. Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ELAINE M. PUSH,
Plaintiff,

Case No: 15-11867
Hon. VICTORIA A. ROBERTS

v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
__________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION
I.

Introduction
On May 21, 2012, Plaintiff, Elaine M. Push, filed an application for Disability

Insurance Benefits (“DIB”), alleging an onset date of December 19, 2011. The
application was denied and Push filed a timely request for administrative hearing. The
hearing was held on November 5, 2013. Administrative Law Judge (“ALJ”) Paul Jones
found that Push was not disabled under the Social Security Act. The Appeals Council
denied her review and she timely filed for judicial review of the final decision on May 22,
2015. This action was referred to Magistrate Judge David R. Grand for a Report and
Recommendation (“R&R”) pursuant to 28 U.S.C. § 636(b)(1)(B). Push makes three
objections to the R&R.
The Court ADOPTS Magistrate Judge Grand’s R&R.
II.

Background
Push was fifty-four years old, 5'7" tall, and weighed approximately 170 pounds at

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the time of the administrative hearing. She dropped out of school in the ninth grade, but
later earned her GED. She worked for twenty-five years, the last fifteen years of which
she worked as an administrative assistant. On January 20, 2009, Push stopped working
when her employer “got rid” of her because she was unable to work. She applied for
disability benefits due to rheumatoid arthritis, fibromyalgia, ulcerative colitis, and irritable
bowl syndrome (“IBS”).
The ALJ considered all symptoms and the extent to which the symptoms can
reasonably be accepted as consistent with objective medical evidence. Among other
evidence, the ALJ considered:
-The treating doctors’ treatment and consultation notes, and observations.
- Push’s diagnosis of arthritis and fibromyalgia with no imaging evidence of
arthritis and normal inflammatory markers.
- Push’s troubles with her hands and wrists, and complaints of thirty minutes of
morning stiffness.
- Push’s symptoms of fatigue, muscle and joint pain, and joint swelling.
- Evidence found by clinicians of rheumatoid arthritis and inflammatory arthritis,
and multiple tender points in a pattern consistent with fibromyalgia.
- Tenderness with range of motion and stress pain with both wrists.
- X-rays of both wrists and hands that were unremarkable and MRI of the right
hand that was normal.
- X-rays of Push’s bilateral shoulders, hands, wrists, ankles, and feet that were
normal.
- Push’s grip strength of 5/5 and her intrinsic finger muscle strength of 3/5.
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- Push’s response to steroids.
- Push’s diagnosis of mild degenerative disc disease in her cervical and lumber
spine.
- X-rays showing mild dextroscoliosis of the mid thoracic spine, and mild
degenerative changes in her cervical and lumbar spine.
- A colonoscopy revealing multiple small mouthed diverticula in the sigmoid,
transverse, and ascending colons.
Pursuant to the five-step inquiry to determine whether a claimant is disabled
within the meaning of the Social Security Act, the ALJ determined that Push met her
burden of proof through the first two steps. At step three, the ALJ found that Push’s
impairments do not medically equal a listed impairment. At step four, the ALJ found that
Push is able to perform her past relevant work as an administrative assistant. At step
five, the ALJ found that Push is capable of performing a significant number of jobs that
exist in the national economy.
III.

Standard of Review
The Court conducted a de novo review of the R&R and the record in light of

Plaintiff’s objections. Where a Magistrate Judge submits an R&R and a party files
objections, the district court must conduct a de novo review of those portions of the
R&R to which an objection has been made. Fed. R. Civ. P 72(b)(3). The district judge
may accept, reject, or modify, in whole or in part, the recommendations made by the
magistrate judge. 28 U.S.C. §636(b)(1)©. After completing a de novo review, there is no
requirement that the district court articulate all of the reasons it rejects a party’s
objections. Thomas v. Halter, 131 F. Supp. 2d 942, 944 (E.D. Mich. 2001).
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IV.

Legal Standard
“This Court must affirm the Commissioner’s conclusion 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.” Longworth v.
Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005) (quoting Warner v. Comm’r
Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004)). If a “reasonable mind might accept the
relevant evidence as adequate to support a conclusion,” the substantial evidence
standard is met. Id. If “substantial evidence supports the Commissioner’s decision, this
Court will defer to that finding ‘even if there is substantial evidence in the record that
would have supported an opposite conclusion.’” Id. It is for the ALJ “to evaluate the
credibility of witnesses, including that of the claimant.” Rogers v. Comm’r of Soc. Sec.,
486 F.3d 234, 247 (6th Cir. 2007). If an agency has failed to adhere to its own
procedures, the Court “will not remand for further administrative proceedings unless the
‘claimant has been prejudiced on the merits or deprived of substantial rights because of
the agency’s procedural lapses.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 654
(6th Cir. 2009) (quoting Connor v. United States Civil Serv. Comm’n, 721 F.2d 1054,
1056 (6th Cir. 1983)).
The Court does not “try the case de novo, resolve conflicts in evidence or decide
questions of credibility.” Bass v. MacMahon, 499 F.3d 506, 509 (6th Cir. 2007). Only
evidence in the record “can be considered when determining whether or not the ALJ’s
opinion was supported by substantial evidence.” Id. at 512-13. However, there is no
requirement that the ALJ or the Court discuss every piece of evidence in the
administrative record. See Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 508 (6th
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Cir. 2006) (“[A]n ALJ can consider all evidence without directly addressing in his written
decision every piece of evidence submitted by a party.”)
An individual must be found disabled under the Social Security Act to obtain
benefits. The Act defines “disability” as the:
[I]nability to engage in substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months.
42 U.S.C. § 423(d)(1)(A).
The ALJ is required to follow a five-step sequential analysis in making a
determination as to disability:
Step One: If claimant is currently engaged in substantial gainful activity,
benefits are denied without further analysis.
Step Two: If 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.
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 the
claimant can perform, in view of his or her age, education, and work
experience, benefits are denied.
Scheuneman v. Comm’r of Soc. Sec., 2011 WL 6937331, at 7 (E.D. Mich. Dec 6, 2011)
(citing 20 C.F.R. § 404.1520); see also Walters v Comm’r of Soc. Sec., 127 F.3d 525
(6th Cir. 1997).
V.

Discussion
A.

Objection one: Weighing medical evidence
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Push argues that Magistrate Judge Grand erred in finding that the ALJ had
properly weighed the medical evidence and properly considered the opinions of treating
physicians. Push says that there was objective evidence introduced that amply
documented her limitations. Push says that the ALJ disregarded the opinion of Dr.
Bregni-Page, and instead, gave great weight to the opinions of the State agency
medical consultants. Push also alleges that the ALJ failed to account for and properly
consider Push’s fibromyalgia and to address the limitations in her ability to use her
hands.
Dr. Bregni-Page gave no medical opinion regarding Push’s abilities. Rather, Dr.
Bregni-Page only observed that Push was applying for disability benefits and noted
Push’s complaints, symptoms, and treatments. These observations, without more, are
not the type of information from a treating physician which will be given great weight
under 20 C.F.R. § 404.1513. 20 C.F.R. § 404.1526(a)(2) “defines medical opinions as
assertions involving judgments about a patient’s ‘symptoms, diagnosis and prognosis.’”
Bass, 499 F.3d at 510. Dr. Bregni-Page’s observations did not fall in this category.
Therefore, the treating physician rule does not apply here and the ALJ was not required
to give great weight to Dr. Bregni-Page’s observations.
Magistrate Judge Grand did address and the ALJ did account for Push’s
allegations concerning limitations in her ability to use her hands. Magistrate Judge
Grand outlined that the ALJ accounted for Dr. Ikeman’s and Dr. Patel’s assessments of
Push’s hand limitations. Dr. Ikeman discussed Push’s difficulty with her hands, including
numbness, tenderness, and dropping objects, but found that the x-rays of her hand
were normal. Dr. Patel indicated that Push had difficulties with fine activities, such as
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fastening buttons, and observed tenderness, but found no redness or limited range of
motion in her PIP or DIP joints. The ALJ weighed the review of the State Agency
medical consultant—which concluded that Push was capable of frequent handling and
fingering—against the treating doctors’ observations, and agreed with the medical
consultant’s assessment.
With respect to Push’s assertion that the ALJ failed to account for Push’s
diagnosis of fibromyalgia, Push presents this argument for the first time. An argument
that is “first presented to the Court in a reply brief is waived.” United States v. Abboud,
438 F.3d 554, 589 (6th Cir. 2006) (citing United States v. Moore, 376 F.3d 570, 576
(6thn Cir. 2004).
Magistrate Judge Grand did not err by finding that the ALJ properly weighed the
medical evidence and that substantial evidence supports the decision of the ALJ.
B.

Objection two: Credibility assessment
Push argues that Magistrate Judge Grand erred by finding that the ALJ’s

conclusions about Push’s credibility were supported. Whether the ALJ permissibly found
Push’s “complaints not credible depends not only upon the scope of his authority in
making such credibility determination, but also upon his evaluation of the evidence on
which the determinations were made.” Rogers, 486 F.3d at 247.
A two part analysis is used to evaluate complaints of disabling pain:
Where the symptoms and not the underlying condition form the basis of
the disability claim. . . [f]irst, the ALJ will ask whether there is an
underlying medically determinable physical impairment that could
reasonably be expected to produce the claimant’s symptoms . . . [s]econd,
if the ALJ finds that such an impairment exists, then he must evaluate the
intensity, persistence, and limiting effects of the symptoms on the
individual’s ability to do basic work activities . . . [r]elevant factors for the
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ALJ to consider in his evaluation of symptoms include the claimant’s daily
activities.
Id. (citing 20 C.F.R.§ 416.929(a)).
An ALJ may consider “household and social activities engaged in by the claimant
in evaluating a claimant’s assertions of pain or ailments.” Walters, 127 F.3d at 532. The
ALJ’s findings “based on the credibility of the applicant are to be accorded great weight
and deference, particularly since the ALJ is charged with the duty of observing a
witness’s demeanor and credibility.” Id. at 531.
The ALJ found that Push’s impairments only support a limitation to a light
exertion level with limitations on postural maneuvers, manipulation controls, and
environmental exposure. While the treating physicians’ treatment notes documented
Push’s diagnosis and pain, the ALJ found that the objective evidence did not support
the alleged severity and disabling nature of the pain.
Contrary to Push’s assertion, the ALJ did not rely mainly on Push’s activities in
determining that Push’s allegations of total disability were not credible. The ALJ
evaluated her activities based on the objective evidence in the record and found that the
objective evidence did not support the intensity, persistence, and limiting effects of the
symptoms that Push alleges.
Magistrate Judge Grand did not err in approving the ALJ’s credibility analysis.

C. Objection three: Hypothetical question posed to vocational expert
Push argues that the ALJ failed to pose accurate hypothetical questions to the
vocational expert. Push says that the ALJ did not mention the limitations that would

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have been caused by her symptoms, which were documented by her medical records
and testimony, but used the non-examining physician’s findings of “frequent hand use.”
The ALJ “is required to incorporate only those limitations accepted as credible by
the finder of fact.” Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1235 (6th
Cir. 1993). Substantial evidence supports the ALJ’s findings of credibility and his
weighing of the evidence.
Magistrate Judge Grand did not err in approving the hypothetical question the
ALJ posed.
VI.

Conclusion
The Court ADOPTS the R&R.

IT IS ORDERED.
S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: July 22, 2016
The undersigned certifies that a copy
of this document was served on the
attorneys of record by electronic
means or U.S. Mail on July 22, 2016.
S/Carol A. Pinegar
Deputy Clerk

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