Gerrick v. Social Security

Filing 19

OPINION AND ORDER affirming Administrative Law Judge, rejecting Report and Recommendation 16 , sustaining defendant's objections 17 , granting defendant's Motion for Summary Judgment 14 , and denying plaintiff's Motion for Summary Judgment 12 Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CHRISTINE ANNE GERRICK,
CASE NO. 15-CV-12998
HONORABLE GEORGE CARAM STEEH
MAG. JUDGE STEPHANIE DAWKINS DAVIS

Plaintiff,
v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
/

OPINION AND ORDER AFFIRMING ADMINISTRATIVE LAW JUDGE,
REJECTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
(DOC. 16), SUSTAINING DEFENDANT’S OBJECTIONS (DOC. 17), GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (DOC. 14), and
DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (DOC. 12)
Plaintiff Christine Gerrick appeals from the final decision of the Commissioner of
Social Security denying her application for disability insurance benefits. The
Administrative Law Judge (“ALJ”), J. William Callahan, affirmed the Commissioner.
This matter is before the Court on the parties’ cross-motions for summary judgment.
The motions were referred to Magistrate Judge Stephanie Dawkins Davis for a report
and recommendation (“R&R”). The Magistrate Judge recommends that the Court
reverse the Administrative Law Judge (“ALJ”), grant plaintiff’s motion for summary
judgment, and deny defendant’s motion for summary judgment. Defendant has filed
timely objections to the Magistrate Judge’s R&R which this court has duly considered.
For the reasons that follow, defendant’s objections shall be sustained, the ALJ shall be
affirmed, and the court shall reject the Magistrate Judge’s R&R.
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I. BACKGROUND
Defendant does not object to the Magistrate Judge’s recitation of the facts and
procedural history in the R&R. The Court adopts and incorporates that portion of the
R&R in full without repeating it here. This opinion addresses defendant’s objections to
the R&R. Additional facts will be set forth in the analysis below, as needed.
The Magistrate Judge recommends reversing the ALJ for several reasons: (1)
the ALJ did not consider the opinions from any treating physicians regarding plaintiff’s
functional limitations where plaintiff failed to proffer the same, (2) the record was not
fully developed because the ALJ gave significant weight to the opinion of Dr. Karl
Manders but did not fully articulate the basis for his opinion, (3) the ALJ’s opinion that
plaintiff had no medically determinable mental impairment was not supported by
substantial evidence where three physicians diagnosed plaintiff with anxiety, and thus,
recommended that the matter be remanded so that plaintiff’s residual functional
capacity (“RFC”) could be modified to include the moderate impairment in
concentration, persistence, or pace noted by Dr. Paul Liu. The Magistrate Judge
recognized that the omission of anxiety as a listed impairment would be harmless error
since at step two, the ALJ found that plaintiff had several other severe impairments,
including hypertension, dissection of the left cervical internal carotid artery, and history
of migraine, and had proceeded to step three. Thus, omission of anxiety as an
impairment at step two would only require remand if the RFC failed to include all
medically determinable impairments, which the Magistrate Judge found that it did.
The Commissioner objects to the R&R for four reasons: (1) the ALJ was not
required
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to obtain medical opinions from plaintiff’s treating sources where plaintiff failed to
provide same, (2) the ALJ was permitted to use the absence of a treating source
opinion to call the severity of plaintiff’s impairments into question, (3) the ALJ properly
gave significant weight to Dr. Manders’ opinion, and (4) the ALJ incorporated Dr. Liu’s
finding that plaintiff experienced moderate restrictions in concentration, persistence, or
pace into plaintiff’s RFC.
II. LEGAL STANDARDS
A.

Objections to a Magistrate Judge’s R&R

A party may file timely written objections to a magistrate judge’s proposed
findings and recommendations. 28 U.S.C. § 636(b)(1). “A judge of the court shall make
a de novo determination of those portions of a report or specified proposed findings or
recommendations to which objection is made.” Id. “A judge of the court may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate.” Id.
B.

Judicial Review of an ALJ’s Decision

Judicial review of a Social Security disability benefits application is limited to
determining whether “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). A reviewing court
may not resolve conflicts in the evidence or decide questions of credibility. Brainard v.
Sec’y of HHS, 889 F.2d 679, 681 (6th Cir. 1989). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”

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Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks and citations
omitted). It is “more than a scintilla but less than a preponderance.” Consol. Edison
Co. v. NLRB, 305 U.S. 197, 399 (1938). “Substantial evidence exists when a
reasonable mind could accept the evidence as adequate to support the challenged
conclusion, even if that evidence could support a decision the other way.” Casey v.
Sec’y of HHS, 987 F.2d 1230, 1233 (6th Cir. 1993); Lindsley v. Comm’r of Soc. Sec.,
560 F.3d 601, 604 (6th Cir. 2009). The substantial evidence standard is deferential and
“presupposes that there is a zone of choice within which the decisionmakers can go
either way, without interference with the courts.” Mullen v. Bowen, 800 F.2d 535, 545
(6th Cir. 1986) (citations omitted).
When determining whether the commissioner’s decision is supported by
substantial evidence, the reviewing court must take into consideration the entire record
as a whole. Futernick v. Richardson, 484 F.2d 647, 649 (6th Cir. 1973). But there is no
requirement that the reviewing court discuss all of the evidence in the record. Kornecky
v. Comm’r of Soc. Sec., 167 F. App’x 496, 508 (6th Cir. 2006) (citing Loral Defense Sys.
Akron v. NLRB, 200 F.3d 436, 453 (6th Cir. 1999).
III. ANALYSIS
1.

The ALJ was not required to obtain medical opinions from plaintiff’s
treating sources where plaintiff failed to provide same.
Plaintiff failed to provide the ALJ with a treating source opinion showing that she

suffered from a disabling limitation. This is not to say that she failed to submit treating
physician records, only that she failed to submit treating source opinions suggesting that
she could not perform all work on a sustained basis or that she had greater functional
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limitations than those outlined in the ALJ’s assessment of her residual functional
capacity (“RFC”). (T. 9-2, PgID 45).
The Magistrate Judge recommends reversing the ALJ’s decision because there
were no opinions from any treating physicians regarding plaintiff’s functional limitations,
and the ALJ denied counsel’s request to keep the administrative record open for 30
days after the hearing so that medical source evidence could be obtained. The Sixth
Circuit has recognized that although an ALJ has the affirmative duty to develop the
factual record, the ALJ need not “seek out a physician’s medical opinion where one is
not offered.” Brown v. Comm’r of Soc. Sec., 602 F. App’x 328, 331 (6th Cir. 2015); see
Cox v. Comm’r of Soc. Sec., 615 F. App’x 254, 263 (6th Cir. 2015) (“We recently held
that an ALJ had sufficiently developed the record despite his failure to obtain the
findings and opinions of the claimant’s treating physician. We reach this conclusion
even though the claimant . . . was unrepresented before the ALJ, heightening the ALJ’s
duty to develop the record.”). The Claimant has the burden to seek out specific
evidence to support her claim. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (“It is not
unreasonable to require the claimant, who is in a better position to provide information
about his own medical condition, to do so.”).
However, the ALJ must ensure that the record contains “sufficient evidence to
make a determination.” Landsaw v. Sec’y of Health & Human Serv., 803 F.2d 211, 214
(6th Cir. 1986).

In this case, the record consisted of 348 pages of medical evidence.

The ALJ’s thoughtful opinion discussed this record evidence at great length. (T. 9-2,
PgID 42-47). Some of the evidence discussed in the ALJ’s detailed opinion included
various diagnostic tests, MRAs, CT angiograms, Doppler scans; hospital records,
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treating physician records, as well as progress notes and treatment records from
numerous sources, as well as the opinion of medical expert Dr. Karl Manders who
reviewed the medical records and offered an opinion on plaintiff’s condition. Because
the record was sufficiently developed for the ALJ to render an opinion, the court
sustains the Commissioner’s objection to the R&R’s conclusion that the ALJ erred by
not extending the time for plaintiff to submit treating source opinions about plaintiff’s
alleged inability to work.
2.

The ALJ was permitted to use the absence of a treating source opinion to
call the severity of plaintiff’s impairments into question.
The ALJ questioned plaintiff’s credibility because she failed to submit treating

source opinions to support her claim of disability. (T. 9-2 PgID 47). The Magistrate
Judge found that the ALJ should not have considered plaintiff’s failure to submit treating
source opinions about her inability to work because plaintiff was not working at the time
she received treatment; thus, her providers were not called upon to render opinions
about her ability to work. Specifically, in her R&R the Magistrate Judge stated:
none of [plaintiff’s treating physicians] opined regarding plaintiff’s
functional limitations as it pertains to working full-time. This makes perfect
sense because plaintiff stopped working in 2007 for reasons entirely
unrelated to her health or disability, long before the issues presented here
manifested themselves. Therefore, it appears that her physicians would
have had no reason to offer such opinions in their regular treating notes,
as physicians typically do when treating a patient who is working.
(Doc. 16 at 27). The Commissioner argues that the above reasoning is flawed because
almost no disability claimants are working full time during the pendency of their
applications; thus, under the above rule, an ALJ could never discount a claimant’s
credibility due to a lack of supportive opinion evidence. It was plaintiff’s burden to
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provide evidence establishing that she was disabled. Also, the ALJ did not issue his
opinion until five weeks after the hearing, during which time, plaintiff still could have
submitted additional medical evidence. For these reasons, the Commissioner’s second
objection shall be sustained.
3.

The ALJ properly gave significant weight to Dr. Manders’ opinion
Plaintiff argues that Dr. Manders’ opinion was not entitled to significant weight

because he did not consider the full record. There is no dispute that Dr. Manders
specifically referenced Exhibits 2F, 3F, 4F, 7F, and 8F in his report. Plaintiff claims his
report is nevertheless flawed because he did not consider: (1) treatment records from
Dr. Dawn Coleman of the University of Michigan Department of Neurology (Ex. 18F), (2)
progress notes from Dr. Mark Friedland (Ex. 13F), (3) outpatient records from the
University of Michigan (Ex. 17F), (4) office treatment notes from Dr. Genevive Crandall
(Ex. 14F), (5) progress notes from Dr. Michael Folbe (Ex. 15F), and (6) office treatment
records dated 9/10/2013 to 11/12/2103 (Ex. 16F). Plaintiff’s argument lacks merit
because the ALJ’s opinion is clear that he, himself, considered Exhibits 13F, 14F, and
16F. (Tr. 9-2, PgID 42-47). As to the two exhibits not specifically referenced in the
ALJ’s opinion, the court’s review of those documents leads to the conclusion that they
do not offer substantial support to plaintiff’s claim of disability. Dr. Folbe’s progress
notes from November 7, 2012 to October 17, 2013 (Ex. 15F) specifically mentions that
plaintiff exercises and walks daily. (Tr. 9-8 PgID 554) and does not report findings that
plaintiff’s disability was severe enough to keep her from working. Also, records from Dr.
Dawn Coleman are consistent with the ALJ’s opinion as her records state, plaintiff’s
“neurovascular exam and CT are reassuring today. I have recommended ongoing
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routine surveillance (i.e. Repeat cross-sectional imaging in 1 year to include CTA of the
chest and neck).” (T. 9-8, PgID 581).
In sum, the ALJ properly considered Dr. Manders’ opinion, but the ALJ’s decision
was based on much more than Dr. Manders’ report. As previously discussed, the ALJ’s
opinion thoroughly discussed virtually all of the record evidence. Thus, even if Dr.
Manders’ opinion did not expressly mention review of all the medical evidence that
forms the record in this case, the ALJ’s reliance on his opinion, when bolstered by
consideration of the record evidence as a whole, was proper. Thus, the
Commissioner’s third objection shall be sustained.
4.

The ALJ incorporated Dr. Paul Liu’s finding that plaintiff experienced
moderate restrictions in concentration, persistence, or pace into plaintiff’s
RFC.
Finally, the court considers the Commissioner’s objection to the Magistrate

Judge’s finding that the ALJ’s determination of the RFC was deficient because it did not
accurately account for plaintiff’s moderate impairment in concentration, persistence, or
pace as noted by Dr. Paul Liu. Dr. Liu opined that plaintiff suffered moderate
restrictions in concentration, persistence or pace. (T. 9-3, PgID 110). He also
concluded that she could perform “simple tasks in a work setting.” Id. PgID 114 . His
examination also noted that claimant could prepare meals, complete chores, shop, take
care of her children, and attend church. Id. PgID 110. The ALJ carefully delineated
plaintiff’s RFC and limited her to “light work” where claimant could “have only incidental
contact with the general public, and occasional contact with co-workers and
supervisors.” (T. 9-2, PgID 43, 47). Given this construction, the RFC adequately

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provided for plaintiff’s limitations and remand is not warranted. Based on her RFC, the
vocational expert testified that claimant could work as a lens inserter, addresser, or a
surveillance monitor, (T. 9-2 PgID 48), all of which constitute “unskilled” work, which
would necessarily accommodate her moderate mental impairments. In similar
circumstances, courts have found that the hypothetical question to the vocational expert
accurately accounted for plaintiff’s problems with concentration, persistence, and pace,
when the ALJ limited the plaintiff’s RFC to an ability to carry out “unskilled” work. See
Latarte v. Comm’r of Soc. Sec., No. 08-13022, 2009 WL 1044836, at *3 (E.D. Mich.
April 20, 2009). Accordingly, the Commissioner’s fourth objection is sustained.
In response to the Commissioner’s fourth objection, plaintiff also argues the RFC
insufficiently addressed her physical limitations by not accounting for her limitations in
hearing and tinnitus, and difficulties with hypertension and fatigue. The ALJ, however,
specifically dismissed plaintiff’s complaint of tinnitus as there was no mention of such a
problem in claimant’s physical examination (T. 9-2 PgID 43 (citing T. 9-8, Ex. 16F)). As
to her claim of problems with hypertension and fatigue, the ALJ relied on Dr. Ernesto
Bedia’s conclusion that plaintiff’s blood pressure was well controlled (T. 9-2 PgID 45),
and found that her claims of fatigue were not entirely credible. Id. PgID 44. The ALJ
also relied on Dr. Manders’ conclusion that plaintiff could sit for 8 hours in an 8-hour
workday which he found was well supported by the overall record. Id. PgID 46. Given
that the ALJ’s determination of plaintiff’s RFC was supported by substantial evidence,
his decision shall be affirmed.
IV. CONCLUSION

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For the reasons explained above, the ALJ is AFFIRMED, the Magistrate Judge’s
Report and Recommendation (Doc. 16) is REJECTED. Defendant’s objections (Doc. 17)
are SUSTAINED, defendant’s motion for summary judgment (Doc. 14) is GRANTED, and
plaintiff’s motion for summary judgment (Doc. 12) is DENIED.
IT IS SO ORDERED.
Dated: September 26, 2016
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
September 26, 2016, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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