McDaniel v. Social Security, Commissioner of
ORDER Adopting 36 Report and Recommendation Denying 34 Motion for Summary Judgment filed by Social Security, Commissioner of, Finding as moot 27 Motion for Summary Judgment filed by Terry L. McDaniel, and Granting 30 Motion for Summary Judgment filed by Terry L. McDaniel, Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
TERRY L. MCDANIEL,
Case No. 15-12507
Paul D. Borman
United States District Judge
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF
Anthony P. Patti
United States Magistrate Judge
OPINION AND ORDER:
(1) REJECTING DEFENDANT’S OBJECTION (ECF NO. 37);
(2) ADOPTING THE REPORT AND RECOMMENDATION OF
MAGISTRATE JUDGE ANTHONY P. PATTI (ECF NO. 36);
(3) DENYING AS MOOT PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT (ECF NO. 27);
(4) GRANTING PLAINTIFF’S AMENDED MOTION FOR SUMMARY
JUDGMENT (ECF NO. 30);
(5) DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(ECF NO. 34);
(6) REVERSING THE DECISION OF THE COMMISSIONER; AND
(7) REMANDING FOR FURTHER PROCEEDINGS PURSUANT TO
SENTENCE FOUR OF 42 U.S.C. § 405(g)
On February 7, 2017, Magistrate Judge Anthony P. Patti issued a Report and
Recommendation addressing the outstanding motions in this action. (ECF No. 36,
Report and Recommendation.) In the Report and Recommendation, the Magistrate
Judge recommended that this Court deny as moot Plaintiff’s August 29, 2016
Motion for Summary Judgment (ECF No. 27), grant Plaintiff’s September 2, 2016
Motion for Summary Judgment (ECF No. 30), Deny Defendant’s Motion for
Summary Judgment (ECF No. 34), reverse the decision of the Commissioner of
Social Security (“Commissioner”), and remand the matter to the Commissioner
pursuant to Sentence Four of 42 U.S.C. § 405(g) for further proceedings.
Now before the Court is Defendant’s Objection to the Report and
Recommendation. (ECF No. 37, Def.’s Objs.) Plaintiff filed a timely Response.
(ECF No. 39.) 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), the Court will reject Plaintiff’s Objection and adopt the
Magistrate Judge’s Report and Recommendation.
The findings of the Administrative Law Judge (“ALJ”) and the pertinent
portions of the Administrative Record are accurately and adequately set forth in the
Report and Recommendation. There are no material inconsistencies with these
accounts and the Court incorporates those factual recitations here. (Report and
Recommendation at 2-6; ECF No. 14, Transcript of Social Security Proceedings at
10-17 (hereinafter “Tr. at ___”).) The following summary contains only the facts
essential to the Court’s evaluation of Defendant’s objections.
Plaintiff first submitted an application for Supplemental Security Income
(“SSI”) to the Social Security Administration (“SSA”) in either June or July of
2012. (Tr. 10, 94.) Plaintiff alleged that he had been disabled since May 10, 2012,
owing to chronic pain in his neck, lower back, knees, and left wrist. (Tr. at 94,
110.) His SSI application was denied on November 26, 2012. (Tr. at 39-46.)
On February 26, 2014, ALJ Oksana Xenos held a de novo hearing on
Plaintiff’s SSI application. Plaintiff, who was unrepresented (tr. at 23-24), and
Vocational Expert Pauline McEachin testified at the hearing. (Tr. at 21-38.) At the
hearing, the ALJ asked Plaintiff whether, in addition to the documents he had
brought to the hearing, there were any health care providers that the SSA should
obtain updated records from. (Tr. at 25-26.) After naming a few such health care
providers, Plaintiff testified as follows:
ALJ: Go ahead.
CLMT: Mendolsohn, Dr. Mendolsohn. I just had surgery on my knee.
CLMT: Yeah. And he did surgery on my knee.
ALJ: Oh. And where is he located?
CLMT: On the Lavan and Five Mile.
ALJ: Lavan and Five Mile?
ALJ: And what is that, is that Livonia over there or what?
CLMT: I think that is Livonia. Yes.
ALJ: Okay. When did you have that surgery with him?
CLMT: Last month, around the -- I think it was the 24th. It was the
24th, the 24th.
ALJ: Of what?
ALJ: Okay. January 24th. All right. We will get that record also.
(Tr. at 27-28.)
The ALJ then proceeded to elicit testimony from Plaintiff on his condition,
as well as related opinion testimony from McEachin. (Tr. at 28-37.) Before closing
the hearing, the ALJ stated on the record:
We're going to request updates from all of the doctors and clinics and
so on that you mentioned. When they come in you'll be receiving a
copy of whatever they sent us. And then I will, at that point, I will
make a decision and issue a written decision which will state my
findings of fact and my conclusions of law.
(Tr. at 37.)
The administrative record indicates (and the Magistrate Judge noted) that
two requests for records sent by the SSA after the hearing appear to have been
unsuccessful. A request for records sent by the SSA to “Dr. Mendelsohn” of
“Livonia Orthopedics/Physical therapy” at “14555 Levan, Ste #215” in Livonia,
Michigan was returned to the sender, with the words “Physical therapy” under the
addressee’s name circled and the words “No Records found” written on at the
bottom. (Tr. at 581-585.) And a similar letter requesting records that was sent to
“Cherry Hill Chiropractic” in Westland, Michigan, was returned with the text
“RETURN TO SENDER” and “UNABLE TO FORWARD” on the front of the
envelope. (Tr. at 586-591.)
In her decision issued April 24, 2014 (tr. at 7-20), the ALJ employed the
five-step evaluation process required by 20 C.F.R. § 404.1520(a)(4), and made the
following determinations: Plaintiff has never engaged in substantial gainful activity
(Step 1); Plaintiff has the specific severe impairments of herniated and bulging
discs in the spine, radiculopathy, right knee and right shoulder arthralgia, a right
ulnar tear, and obesity (Step 2); Plaintiff does not have an impairment that meets
or medically equals an impairment set forth in the Commissioner’s Listing of
Impairments, 20 C.F.R. Pt. 404, Subpt. P, App. 1, et seq. (Step 3); Plaintiff has the
residual functional capacity to perform light work under certain conditions (Step
4); and there are jobs that exist in significant numbers in the national economy that
Plaintiff can perform (Step 5). (Tr. at 12-16.) Accordingly, the ALJ determined
that Plaintiff was not disabled within the meaning of the Social Security Act. (Tr.
at 17.) Plaintiff requested review of this decision, and the request was denied on
June 9, 2015. (Tr. at 2-6.)
Plaintiff filed this action on July 15, 2015 (ECF No. 1), and the case was
referred to the Magistrate Judge the next day (ECF No. 3). Although Plaintiff
originally filed pro se, attorney Eva I. Guerra filed an appearance on his behalf on
March 31, 2016. (ECF No. 19.) Guerra remains Plaintiff’s counsel in this action.
Plaintiff moved for summary judgment on August 29, 2016 (ECF No. 27),
and then filed an Amended Motion for Summary Judgment on September 2, 2016
(ECF No. 30). (The Amended Motion for Summary Judgment was apparently filed
in order to correct a filing error, and does not differ substantively from the original
Motion.) Defendant filed her own Motion for Summary Judgment on November 9,
2016. (ECF No. 34.)
In the Report and Recommendation, the Magistrate Judge recommended that
the Court deny as moot Plaintiff’s first Motion for Summary Judgment, deny
Defendant’s Motion for Summary Judgment, and grant Plaintiff’s Amended
Motion for Summary Judgment, thereby requiring remand to the SSA for further
proceedings. Although the Magistrate Judge comprehensively addressed all of the
issues raised by the parties, only one is subject to review here: the Magistrate
Judge’s finding that the ALJ did not fully develop the record as required by 20
C.F.R. §§ 404.1512(d) and 416.912(d). Defendant raises two specific objections to
this finding. For the reasons stated below, the Court will reject Defendant’s
objections and adopt the Magistrate Judge’s Report and Recommendation.
STANDARDS OF REVIEW
Pursuant to Federal Rule of Civil Procedure 72(b) and 28 U.S.C. §
636(b)(1), the Court conducts a de novo review of the portions of the Magistrate
Judge’s Report and Recommendation to which a party has filed “specific written
objections” in a timely manner. Lyons v. Comm’r Soc. Sec., 351 F. Supp. 2d 659,
661 (E.D. Mich. 2004). A district court “may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate judge.” Id. Only
those objections that are specific are entitled to a de novo review under the statute.
Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). “The parties have the duty to
pinpoint those portions of the magistrate's report that the district court must
specially consider.” Id. (internal quotation marks omitted). A general objection, or
one that merely restates arguments previously presented, does not sufficiently
identify alleged errors on the part of the magistrate judge. An “objection” that does
nothing more than disagree with a magistrate judge's determination “without
explaining the source of the error” is not a valid objection. Howard v. Sec'y of
Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).
In reviewing the findings of the ALJ, the Court is limited to determining
whether those findings are supported by substantial evidence and made pursuant to
proper legal standards. See Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th
Cir. 2007) (citing 42 U.S.C. § 405(h)); see also Cutlip v. Sec’t of Health and
Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). Substantial evidence is “‘such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Kyle v. Comm’r of Soc. Sec., 609 F.3d 847, 854 (6th Cir. 2010)
(quoting Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601, 604 (6th Cir. 2009)); see
also McGlothin v. Comm’r of Soc. Sec., 299 F. App’x 516, 522 (6th Cir. 2008)
(recognizing that substantial evidence is “more than a scintilla of evidence but less
than a preponderance”) (internal quotation marks omitted). “If the Commissioner’s
decision is supported by substantial evidence, [the court] must defer to that
decision, ‘even if there is substantial evidence in the record that would have
supported an opposite conclusion.’” Colvin v. Barnhart, 475 F.3d 727, 730 (6th
Cir. 2007) (quoting Longworth v. Comm’r of Soc. Sec. Admin., 402 F.3d 591, 595
(6th Cir. 2005)).
As to whether proper legal criteria were followed, a decision of the SSA
supported by substantial evidence will not be upheld “where the SSA fails to
follow its own regulations and where that error prejudices a claimant on the merits
or deprives the claimant of a substantial right.” Bowen v. Comm’r of Soc. Sec., 478
F.3d 742, 746 (6th Cir. 2007) (citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,
546-47 (6th Cir. 2004)).
This Court does not “try the case de novo, nor resolve conflicts in the
evidence, nor decide questions of credibility.” Cutlip, 25 F.3d at 286. “It is of
course for the ALJ, and not the reviewing court, to evaluate the credibility of
witnesses, including that of the claimant.” Rogers, 486 F.3d at 247; see also Cruse
v. Comm’r of Soc. Sec., 502 F.3d 532, 542 (6th Cir. 2007) (noting that the “ALJ’s
credibility determinations about the claimant are to be given great weight,
‘particularly since the ALJ is charged with observing the claimant’s demeanor and
credibility’”) (quoting Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir.
Defendant’s First Objection: The SSA Had No Follow-Up Obligation
under the Applicable Regulations.
As mentioned above, the proper inquiry here involves an analysis not only of
whether the SSA’s determination was supported by substantial evidence, but also
of whether the SSA “fail[ed] to follow its own regulations and [whether] that error
prejudice[d] a claimant on the merits or deprive[d] the claimant of a substantial
right.” Bowen, 478 F.3d at 746. Here, the Magistrate Judge determined that the
SSA failed to follow its own regulations in a manner that prejudiced Plaintiff—
specifically by not making any further attempt to contact the “Dr. Mendelson” to
whom Plaintiff made reference at the hearing after it received the “no records
The applicable regulations provide the following assurance to Social
Before we make a determination that you are not disabled, we will
develop your complete medical history for at least the 12 months
preceding the month in which you file your application unless there is
a reason to believe that development of an earlier period is necessary
or unless you say that your disability began less than 12 months
before you filed your application. We will make every reasonable
effort to help you get medical evidence from your own medical
sources and entities that maintain your medical sources' evidence
when you give us permission to request the reports.
20 C.F.R. §§ 404.1512(b), 416.912(b) (emphasis added). And crucially, the
regulations define “every reasonable effort” as follows:
Every reasonable effort means that we will make an initial request for
evidence from your medical source or entity that maintains your
medical source's evidence, and, at any time between 10 and 20
calendar days after the initial request, if the evidence has not been
received, we will make one follow-up request to obtain the medical
evidence necessary to make a determination. The medical source or
entity that maintains your medical source's evidence will have a
minimum of 10 calendar days from the date of our follow-up request
to reply, unless our experience with that source indicates that a longer
period is advisable in a particular case.
Id. (emphasis added).
Plaintiff argued (and the Magistrate Judge agreed) that the ALJ was
obligated by these regulations to make “one follow-up request” to Dr. Mendelson’s
office, and that since the first request was apparently sent to the wrong address,1 a
follow-up request—or at least a notification to Plaintiff of the “no records found”
response, as the ALJ had told him she would provide—would have revealed the
error and allowed for a request to be sent to the correct address. Defendant’s
position is that the condition which triggers the follow-up obligation (“if the
evidence has not been received”) was never actually met: the notification sent to
the SSA that “no records [were] found” was itself “the evidence” and thus the
follow-up obligation was not triggered. The determinative issue is therefore
whether, on these facts, the regulations quoted above generated an obligation on
the ALJ’s part to follow up with the health care provider that Plaintiff identified at
Although there does not seem to be any controlling precedent that speaks
directly to what meets the “every reasonable effort” standard in circumstances like
these, courts consistently hold that this determination, like any “reasonableness”
Plaintiff argued that this was the reason for the “no records found” response because this health care
provider, at least as of September 2016, was located at a different address. Defendant counters that it is
just as plausible that Defendant was located at the address the request was sent to, and moved in the
interim time. The Magistrate Judge found Plaintiff’s account more plausible, and the Court agrees.
determination, requires a court to consider all facts it deems to be relevant in a
particular case. See, e.g., Webb v. Comm'r of Soc. Sec., No. 2:16-CV-10015, 2017
WL 1164708, at *4 (E.D. Mich. Mar. 29, 2017) (holding that an ALJ did not have
a duty to request a set of records where the plaintiff had represented that she
herself would obtain the records through counsel); D'Angelo v. Comm'r of Soc.
Sec., 475 F. Supp. 2d 716, 722 (W.D. Mich. 2007) (holding that the ALJ had not
sufficiently developed the record in light of the fact that the plaintiff was
unrepresented and the fact that the administrative “record include[d] virtually no
medical records of plaintiff's treatment with” his treating physician); Jones v.
Apfel, 66 F. Supp. 2d 518, 539 (S.D.N.Y. 1999) (holding that the ALJ had not
adequately developed the record where he “left it entirely up to [the plaintiff] to
procure her treating physician medical records, even though the ALJ knew from
the record that [the plaintiff] had a psychological disorder” and where he “saw for
himself that [the plaintiff] had problems following instructions and got confused
when she asked for an attorney at the hearing, and gave confusing answers about
who treated her and when”).
Given certain facts present in this case, accepting Defendant’s argument that
the ALJ had no follow-up obligation after receiving the “no records found”
response would require the Court to read nearly all meaning out of the phrase
“every reasonable effort.” These facts include: (1) the fact that Plaintiff stated on
the record at his hearing before the ALJ that he had recently had knee surgery, as
well as the date and the name of the physician who provided that surgery (tr. at
27); (2) the fact that the ALJ indicated to Plaintiff that the SSA would obtain
records of that surgery and send what was received to Plaintiff (tr. at 27-28, 37);
(3) the fact that the administrative record reflects assessments by medical
professionals that Plaintiff was a poor historian (tr. at 158, 293, 323); and (4) the
fact that Plaintiff was unrepresented in the course of the proceedings (tr. at 23-24).2
If, given those facts, the ALJ’s obligation to make “every reasonable effort”
did not require more than accepting a cursory statement that no records were found
of a surgery that Plaintiff clearly stated he had had roughly a month before, then
the standard has little practical meaning. Accordingly, the Court rejects
Defendant’s first objection.
Defendant’s Second Objection: Plaintiff Has Not Profferred Facts to
Establish that the ALJ Committed Reversible Error.
In her second objection, Defendant argues that Plaintiff has not shown the
level of prejudice required to justify remand because he has not cited “specific
“When a disability claimant is not represented by counsel at the administrative hearing, the ALJ has a
special duty to ensure that a full and fair administrative record is developed.” Duncan v. Sec'y of Health &
Human Servs., 801 F.2d 847, 856 (6th Cir. 1986) (quoting Lashley v. Secretary of Health & Human
Services, 708 F.2d 1048, 1051 (6th Cir. 1983)); see also D’Angelo, 475 F. Supp. 2d at 722.
additional medical facts about Plaintiff’s work-related functional limitations.”
(Def.’s Objs. at 3.) Defendant has not, however, cited any authority binding on this
Court that establishes that in cases where an ALJ has inadequately developed the
record, the Plaintiff’s burden is to put forward “specific additional medical facts”
showing that record lacked evidence to a degree that was prejudicial to the
The only Sixth Circuit case cited by Defendant is inapposite because it does
not address inadequate development of an administrative record by an ALJ, but
rather the burden that must be met by a claimant who seeks remand based on
medical evidence that was generated after the hearing before the ALJ. See Foster v.
Halter, 279 F.3d 348, 357–58 (6th Cir. 2001). Defendant’s other cited case, Nelson
v. Apfel, 131 F.3d 1228 (7th Cir. 1997), is also unavailing: there, the plaintiff’s
failure to identify specific facts missing from the record—which Defendant
characterizes as fatal to the plaintiff’s case both in that case and here—was in fact
only one reason that the court denied remand, along with the fact that the plaintiff
did not indicate “any medical evidence that was disregarded” and the fact that he
did not “demonstrate prejudice by showing a significant omission from the
record.” Id. at 1236. Even if those facts were not present in this case, Nelson is not
precedential, and less than persuasive in view of the Sixth Circuit authority cited in
the next paragraph.
More relevant here is Strang v. Comm'r of Soc. Sec., 611 F. App'x 271 (6th
Cir. 2015), in which an ALJ represented to a claimant at his hearing that she would
obtain certain recently created documents from the claimant’s treating physician,
and then failed to do so. There, the Sixth Circuit held that remand was warranted
on this basis because “by telling [the plaintiff] she would procure certain
documents for the record and then failing to follow through, the ALJ effectively
deprived [him] of a full and fair hearing.” Id. at 275. The court acknowledged that
the prejudice requirement meant that such claims were generally subject to a
harmless-error analysis, but explained that
[i]n a situation where the ALJ agrees to procure more information for
the record and fails to do so, . . . “[t]he lack of medical and vocational
documentation supporting an applicant's allegations of disability is
undoubtedly prejudicial to a claim for benefits.” This court has “no
way of knowing whether the evidence from this case would sustain
[the plaintiff’s] contentions,” but, “in the absence of proof to the
contrary . . . we must assume that it does lend credence” to those
Id. at 276 (quoting Brown v. Shalala, 44 F.3d 931, 935–36 (11th Cir. 1995)); see
also Morgan v. Astrue, No. 3:09-CV-262, 2010 WL 3723992, at *9 (E.D. Tenn.
June 30, 2010), report and recommendation adopted, No. 3:09-CV-262, 2010 WL
3723985 (E.D. Tenn. Sept. 15, 2010) (“Once an ALJ has communicated to a
claimant that he will intervene and directly obtain the claimant's medical records
from a medical care provider, the ALJ must follow through or else he will commit
a procedural error that warrants remand. This is so because a claimant who has
been told that his medical records will be obtained and considered by the ALJ will
likely not make an effort on his own to obtain and submit the records. The claimant
will simply trust that the ALJ will follow through. If the ALJ then fails to do so,
the claimant clearly will be prejudiced.”). It is also worth noting that in Brown, the
decision quoted by the Sixth Circuit in Strang, the Eleventh Circuit cautioned that
not every allegation that an ALJ has neglected to complete the record justifies
remand, but then went on to explain that “[t]he likelihood of unfair prejudice to a
claimant may arise, however, where . . . the evidentiary gap involves recent
medical treatment, which the claimant contends supports her allegations of
disability, or the receipt of vocational services.” Brown, 44 F.3d at 936 (emphasis
The cases discussed above suggest that the likelihood of a claimant’s
suffering prejudice by virtue of an ALJ’s failure to obtain particular documents is
heightened where the ALJ has represented that he or she would obtain the
records—particularly in cases involving pro se claimants—and where the
documents at issue relate to recent medical treatment such that they could have
bearing on the determination of disability. Both are true here. The Court agrees
with the Magistrate Judge’s conclusion that the gap in the record regarding
Plaintiff’s January 24, 2014 knee surgery is a “significant omission,” as well as his
conclusion that it was prejudicial to the Step 3 determination in Plaintiff’s case,
and potentially the Step 4 and Step 5 determinations as well. (Report and
Recommendation at 29-31.) The Court therefore rejects Defendant’s second
For all of the reasons stated above, the Court hereby:
- REJECTS Defendant’s Objection (ECF No. 37);
- ADOPTS the Report and Recommendation of Magistrate Judge Anthony P.
Patti (ECF No. 36) as this Court’s findings and conclusions of law;
- DENIES AS MOOT Plaintiff’s Motion for Summary Judgment (ECF No. 27);
- GRANTS Plaintiff’s Amended Motion for Summary Judgment (ECF No. 30);
- DENIES Defendant’s Motion for Summary Judgment (ECF No. 34);
- REVERSES the decision of the Commissioner; and
- REMANDS the case to the SSA under Sentence Four of 42 U.S.C. § 405(g) for
The scope of the proceedings on remand shall be limited to the securing of
records regarding Plaintiff’s treatment by Dr. Mendelson in January and/or
February of 2014, and determination of the extent to which those records affect the
analysis required by 20 C.F.R. § 404.1520(a)(4). Plaintiff’s counsel shall make all
reasonable efforts to assist the ALJ in obtaining these records within 60 days of the
date of this Order. Once the records have been obtained, the Court directs the ALJ
on remand to “perform a new Step 3 analysis and finding as to Listing 1.02(A) in
light thereof; and . . . re-evaluate the Step 4 RFC and Step 5 findings as necessary.”
(Report and Recommendation at 31.)
IT IS SO ORDERED.
s/Paul D. Borman
Paul D. Borman
United States District Judge
Dated: April 17, 2017
CERTIFICATE 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 April 17, 2017.
Deborah Tofil, Case Manager
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