Harper v. Social Security

Filing 16

OPINION AND ORDER SUSTAINING DEFENDANT'S OBJECTIONS 15 ; REJECTING REPORT AND RECOMMENDATION 14 ; GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 13 ; AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 10 . Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KEVIN JON HARPER,
Plaintiff,

Case No. 15-cv-13971

v.

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

COMMISSIONER OF SOCIAL SECURITY,
UNITED STATES MAGISTRATE JUDGE
STEPHANIE DAWKINS DAVIS

Defendant.

OPINION AND ORDER SUSTAINING DEFENDANT’S OBJECTIONS [15]; REJECTING
REPORT AND RECOMMENDATION [14]; GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT [13]; AND DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT [10]
I. INTRODUCTION
This matter is before the Court on the Parties’ Cross-Motions for Summary
Judgement as to Plaintiff Kevin Jon Harper’s claim for judicial review of Defendant
Commissioner of Social Security’s denial of his application for disability insurance
benefits. The matter was referred to Magistrate Judge Stephanie Dawkins Davis,
who issued a Report and Recommendation on February 23, 2017, recommending
that Plaintiff’s Motion for Summary Judgment be granted, that the Commissioner’s
Motion for Summary Judgment be denied, and that the findings of the Commission
be reversed and remanded for further proceedings. The Commissioner filed

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objections to the Report and Recommendation on March 9, 2017. Plaintiff did not
file a response. For the reasons discussed below, the Court will sustain the objections
to the Magistrate Judge’s Report and Recommendation and grant Defendant’s
Motion for Summary Judgment.
II. ANALYSIS
The standard of review to be employed by the court when examining a report
and recommendation is set forth in 28 U.S.C. § 636. This Court “shall make a de
novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). This court
“may accept, reject or modify, in whole or in part, the findings or recommendations
made by the magistrate.” Id.
A district court may affirm, modify, or reverse the Commissioner’s decision,
with or without remand. See 42 U.S.C. § 405(g). Findings of fact by the
Commissioner are conclusive if supported by substantial evidence. Id. The court
must affirm the decision if it is “based on [an appropriate] legal standard and is
supported by substantial evidence in the record as a whole.” Studaway v. Sec’y of
Health and Human Servs., 815 F. 2d 1074, 1076 (6th Cir. 1987). 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).

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Plaintiff applied for disability insurance benefits on February 6, 2012, alleging
a disability onset date of October 4, 2011. Dkt. No. 10, p. 7 (Pg. ID 985). The
Administrative Law Judge (“ALJ”) determined that Plaintiff has the following
severe impairments: C6-7 herniation with cord compression and radiculopathy,
status post discectomy and C5-7 fusion; multilevel lumbar degenerative disc
disease/degenerative joint disease without stenosis or neural foraminal narrowing;
and a major depressive disorder. Dkt. No. 7-2, p. 24 (Pg. ID 55). The ALJ found that
the claimant does not have an impairment or combination of impairments that meets
or medically equals the severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1.
Prior to the hearing, Plaintiff’s most recent consultative examination was held
on June 7, 2017. Dkt. No. 10, p. 14 (Pg. ID 992). Since that time, Plaintiff says that
over 288 pages of new medical reports were added to the record, which indicate
additional limitations and provide further evidence of his disabilities. Dkt. No. 7-10
(Pg. ID 899–90, 904–05). Accordingly, Plaintiff claims that a significant portion of
medical evidence was not available when his expert medical exam occurred. For this
reason, inter alia, Plaintiff requests that the case be remanded. Defendant objects.
A. OBJECTION # 1
In order to become entitled to any benefit based upon disability, the Plaintiff
must be disabled as defined in Title II of the Social Security Act. 20 C.F.R. §
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404.1501. Federal regulations specify the Listing of Impairments which describe
“the major body systems impairments [that are considered] severe enough to prevent
an individual from doing any gainful activity, regardless of age, education, or work
experience.” 20 C.F.R. § 404.1525. If an individual’s impairments do not meet any
of the criteria in the Listing of Impairments, “it can medically equal the criteria of a
listing.” Id. An impairment is medically equivalent to a listed impairment “if it is at
least equal in severity and duration to the criteria of any listed impairment.” 20
C.F.R. § 404.1526.
In this case, it seems undisputed that the Plaintiff’s impairments did not meet
any of the criteria in the Listing of Impairments. Therefore, at issue in this case is
whether the Plaintiff’s impairments medially equally the severity and duration of a
listed impairment.
“The administrative law judge or Appeals Council is responsible for deciding
the ultimate legal question whether a listing is met or equaled. As trier of the facts,
an administrative law judge or the Appeals Council is not bound by a finding by a
State agency medical or psychological consultant or other program physician or
psychologist as to whether an individual’s impairment(s) is equivalent in severity to
any impairment in the Listing of Impairments. However, longstanding policy
requires that the judgment of a physician (or psychologist) designated by the
Commissioner on the issue of equivalence on the evidence before the administrative
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law judge or the Appeals Council must be received into the record as expert opinion
evidence and given appropriate weight.” Titles II & XVI: Consideration of Admin.
Findings of Fact by State Agency Med. & Psychological Consultants & Other
Program Physicians & Psychologists at the Admin. Law Judge & Appeals Council,
SSR 96-6P (S.S.A. July 2, 1996).
“When an administrative law judge or the Appeals Council finds that an
individual[’]s impairment(s) is not equivalent in severity to any listing, the
requirement to receive expert opinion evidence into the record may be satisfied by
[various approved documents] signed by a State agency medical or psychological
consultant. However, an administrative law judge and the Appeals Council must
obtain an updated medical opinion from a medical expert in the following
circumstances:
[1] When no additional medical evidence is received, but in the opinion
of the administrative law judge or the Appeals Council the symptoms,
signs, and laboratory findings reported in the case record suggest that a
judgment of equivalence may be reasonable; or
[2] When additional medical evidence is received that in the opinion of
the administrative law judge or the Appeals Council may change the
State agency medical or psychological consultant’s finding that the
impairment(s) is not equivalent in severity to any impairment in the
Listing of Impairments.”
Id.
Magistrate Judge Davis reasoned that “the over 288 pages of medical records
submitted by the plaintiff reasonably raises the question as to whether plaintiff
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medically equals a listing.” Dkt. No. 14, p. 25 (Pg. ID 1063). Therefore, Magistrate
Judge Davis recommends that this matter be reversed and remanded because the ALJ
did not obtain a definitive answer on the issue of medical equivalence. Id. Defendant
argues that Magistrate Judge Davis erred because there was no requirement for the
ALJ to obtain an updated opinion. Dkt. No. 15, p. 2 (Pg. ID 1071). According to the
Defendant, Social Security Ruling 96–6p does not mandate an updated opinion,
rather it gives the Commissioner inherent discretion to determine whether an
updated opinion is necessary. Id.
“Social Security Ruling 96–6p governs the need for updated medical expert
opinions. It requires an update when either (1) there is evidence of symptoms, signs
and findings that suggest to the ALJ or Appeals Council that the applicant’s
condition may be equivalent to the listings; or (2) when additional medical evidence
is received that ‘in the opinion of the administrative law judge or the Appeals
Council may change the State agency medical or psychological consultant’s finding
that the impairment does not equal the listings.” Kelly v. Comm’r of Soc. Sec., 314
F. App’x 827, 830 (6th Cir. 2009). In this case, there is no argument that the ALJ
believed the new records may have changed any medical expert’s opinion. Thus, Mr.
Harper must show that the new medical records suggest that he is disabled under the
listing. Id.

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The Defendant argues that the Plaintiff has failed to meet his burden and
demonstrate that an updated medical opinion was mandatory rather than merely
discretionary. Based on two Sixth Circuit cases, the Defendant’s argument is welltaken. Kelly v. Commissioner of Social Security, 314 F. App’x 827 (6th Cir. 2009)
and Courter v. Commissioner of Social Security, 479 F. App’x 713 (6th Cir. 2012),
are particularly instructive in this case.
Kelly involved an application for childhood Supplemental Security Income
benefits. Kelly, 314 F.App’x at 828. The guardian of the child appealed a district
court’s judgment upholding the denial of benefits. Id. On appeal, Kelly argued that
the ALJ erred by failing to obtain a medical expert to render an updated opinion after
the addition of new evidence. Id. at 829. The Kelly Court examined the record and
determined that the new evidence was “not very different” from the original
evidence and did not “present a significantly different picture” of the claimant. Id.
at 831. Accordingly, the Sixth Circuit found that the guardian failed to meet her
burden and show that the ALJ erred by not obtaining an updated medical expert
opinion. Id. En route to this conclusion, the panel incorporated the following quote
from the district court:
There will always be a gap between the time the agency experts review
the record and give their opinion with respect to the Listing and the time
the hearing decision is issued. Absent a clear showing that the new
evidence renders the prior opinion untenable, the mere fact that a gap
exists does not warrant the expense and delay of a judicial remand. In
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this case, the evidence submitted after the state agency assessment does
not fatally undermine the accuracy of that assessment.
Id. (emphasis added). Three years later, a different Sixth Circuit panel reinforced the
validity of Kelly. See Courter v. Comm’r of Soc. Sec., 479 F. App’x 713, 723 (6th
Cir. 2012) (holding that the ALJ did not violate SSR 96–6p by: (1) not explicitly
ruling on whether an updated expert opinion was required following the admission
of new evidence because the claimant did not request an updated medical opinion
until after her appeal of the ALJ’s decision, and (2) implicitly deciding that the new
evidence would not change the opinions of the experts) (“Claimant argues that the
ALJ overstepped his authority when he ‘ma[de] the assumption that a psychologist
would not make the diagnosis of ‘mental retardation’ in light of the school records.
Claimant’s argument is unpersuasive, because the regulations actually require the
ALJ to make that decision, namely, whether the new evidence would ‘change the
State agency medical or psychological consultant's finding that the impairment(s) is
not equivalent in severity to any impairment in the Listing of Impairments.’ ”).
In this case, the Court will follow the Sixth Circuit’s example in Kelly. The
Plaintiff argues that 288 pages of new evidence “indicate additional problems,
including insomnia and obstructive sleep apnea, and provide further evidence of
Plaintiff’s disabilities, including his low back strain, diabetes mellitus and
hypertension.” Dkt. No. 10, p. 15 (Pg. ID 993). Similar to the facts in Kelly, the new
evidence presented here is not very different from the original evidence. Turning
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first the new evidence of Plaintiff’s sleep apnea and insomnia—those issues do not
present a significantly different picture of the claimant. Indeed, the Plaintiff’s
difficulty sleeping is documented throughout the record, by several different doctors.
See Dkt. No. 7-3, p. 6 (Pg. ID 128); Dkt. No. 7-6, p. 9, 55 (Pg. ID 267, 312); Dkt.
No. 7-8, p. 3, 82, 92, 134, 232 (Pg. ID 408, 487, 497, 589, 637) (noting changes in
sleep patterns, bouts of insomnia due to pain, and general difficulty sleeping).
Therefore, the additional sleep problems noted in the new evidence do not present a
significantly different picture of Mr. Harper’s disability.
Next, regarding the additional evidence of low back strain, diabetes and
hypertension, the Plaintiff fails to show in any meaningful way how new evidence
of the same known conditions renders the prior medical opinion untenable. The
Plaintiff argues that, “the majority of the medical evidence supporting the severity
of Plaintiff’s cervical spine injury were not available at the time the consultative
examination took place on June 7, 2012.” Dkt. No. 10, p. 15 (Pg. ID 993). However,
that argument misses the point because it does not show how the new evidence
presents a significantly different picture than the original evidence. In her opinion,
the ALJ acknowledged that Plaintiff’s impairments were “severe”. Dkt. No. 7-2, p.
25 (Pg. ID 56). Critically, the ALJ found that “the claimant’s medical records do not
support a finding the Listings have either been meet [sic] or equaled.” Id. Therefore,
severity alone is not dispositive. Plaintiff’s argument fails to address how the
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additional evidence of the same disabilities meets or equals the severity and duration
one of the listed impairments.
Magistrate Judge Davis correctly concluded that the new medical records,
“reasonably could have supported a finding of medical equivalence and thereby
disability.” Dkt. No. 14, p. 24 (Pg. ID 1052). However, Sixth Circuit precedent
places a more onerous burden on the Plaintiff to show the need for an updated
medical expert opinion. See Kelly, 314 F. App’x 827, 831 (“Absent a clear showing
that the new evidence renders the prior opinion untenable, the mere fact that a gap
exists does not warrant the expense and delay of a judicial remand.”); Courter, 479
F.App’x 713 (“SSR 96–6p thus requires that the ALJ obtain an updated medical
opinion only when the ALJ believes that the evidence could change a consultant’s
finding that the impairment is not equivalent to a listed impairment.”) (internal
quotations omitted) (emphasis in original). Therefore, the Court finds that Plaintiff
did not meet his burden and the ALJ did not violate SSR 96-6p.
B. OBJECTION # 2
Magistrate Judge Davis concluded that “the ALJ’s RFC determination (at
least in part) was not based on any medical opinion but was apparently formulated
based on [the ALJ’s] own independent medical findings.” Dkt. No. 14, p. 29 (Pg. ID
1067). Specifically, Magistrate Judge Davis is troubled by the ALJ’s assessment of
the Plaintiff’s ability to lift and carry objects, and his mental status.
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Turning first to the physical RFC, Magistrate Judge Davis states that, “the
Commissioner notes that the ALJ did not base her RFC finding regarding plaintiff’s
ability to lift and carry on any physician’s opinion. Rather, the Commissioner asks
the court to imply these findings from the ALJ’s conclusion that the plaintiff was
limited to sedentary work.” Dkt. No. 14, p. 22 (Pg. ID 1064). However, as best as
the Court can tell, there is no such concession by the Commissioner in the record.
On the contrary, the Commissioner maintains that the ALJ’s physical RFC
determination was supported by at least one physician’s opinion. See Defendant’s
Mot. for Summary Judgment, Dkt. No. 46, p. 15 (Pg. ID 1025) (“Plaintiff begins by
asserting that the record is devoid of any physical RFC assessments from any
physicians whatsoever. This statement is inaccurate.”).
The ALJ states:
[T]he record reflects that on June 13, 2012, Muhammad Khalid, M.D.,
from the State agency disability determinations component, reviewed
the claimant’s claim file and opined that the claimant retained the
residual functional capacity to lift and carry 20 pounds occasionally,
ten pounds frequently; stand and/or walk for two hours in an eight-hour
workday; sit for six hours in an eight-hour workday; and push and/or
pull within the limitations for lifting and carrying.
Dkt. No. 7-2, p. 35 (Pg. ID 66) (emphasis added). The ALJ gave only limited weight
to Dr. Khalid’s opinion. Id.
It is true that the ALJ did not explicitly state her own findings regarding
plaintiff’s ability to lift and carry. Indeed, Magistrate Judge Davis is correctly
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troubled by the Commissioner’s request that the court implicitly read limitations into
the ALJ’s findings simply because the ALJ briefly referenced a federal regulation in
her decision. Nevertheless, Dr. Khalid’s opinion on Mr. Harper’s ability to lift and
carry, albeit given limited weight, provides an acceptable medical opinion for the
ALJ to base an RFC finding. Therefore, because there is an acceptable medical
opinion, the Court cannot say that the ALJ impermissibly played doctor and made
her own independent medical findings. Moreover, to the extent that the ALJ might
have erred regarding her finding of Mr. Harper’s ability to lift and carry objects, that
error would have been harmless. If the Court accepted the Commissioner’s argument
that the ALJ implicitly found the Plaintiff was capable of lifting up to 10 pounds at
a time, see Dkt. No. 15, p. 12 (Pg. ID 1081), such a departure from Dr. Khalid’s
opinion would benefit Mr. Harper by finding a more restrictive RFC. See Shinseki
v. Sanders, 556 U.S. 396, 409, 129 S. Ct. 1696, 1706, 173 L. Ed. 2d 532 (2009)
([T]he burden of showing that an error is harmful normally falls upon the party
attacking the agency’s determination.”).
Turning next the mental RFC, Magistrate Judge Davis concluded that the
ALJ’s mental RFC findings were not based on any medical opinion. Dkt. No. 14,
p. 26 (Pg. ID 1064).With regard to Mr. Harper’s mental capacity, the ALJ
concluded that
The claimant can also: understand, carry out, and remember simple
instructions where the pace of productivity is not dictated by an external
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source over which the claimant has not control, such as an assembly
line or conveyor belt; make judgments on simple work and respond
appropriately to usual work situations and changes in a routine work
setting; and, respond appropriately to supervision, the general public,
and coworkers.
Dkt. No. 7-2, p. 28 (Pg. ID 59).
Magistrate Judge Davis concluded that the ALJ erred when she attempted to
make implicit findings, rather than interpret raw medical data that had already been
interpreted by a physician. Dkt. No. 14, p. 29 (Pg. ID 1067). However, upon analysis
of the record, the ALJ’s conclusion was supported by at least one physician, Dr.
Newhouse. Regarding Mr. Harper’s ability to understand, carry out, and remember
instructions, Dr. Newhouse noted that Mr. Harper was “not significantly limited”.
Dkt. No. 7-3, p. 11 (Pg. ID 133). Additionally, Dr. Newhouse noted that Mr. Harper
had “moderate” difficulty in maintaining concentration, persistence or pace. Id., p.
7 (Pg. ID 129). With respect to Mr. Harper’s ability to accept instruction and get
along with coworkers, Dr. Newhouse concluded that Mr. Harper was “not
significantly limited”. Id., p. 12 (Pg. ID 134). It is true that in accepting the opinion
of Dr. Newhouse, who only reviewed Mr. Harper’s file, the ALJ discounted the
opinion of Dr. Oliver-Brannon, who evaluated Mr. Harper in-person. Nevertheless,
Dr. Newhouse’s opinion provides substantial evidence for the ALJ’s decision. See
Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007) (“If the Commissioner’s
decision is supported by substantial evidence, we must defer to that decision even if
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there is substantial evidence in the record that would have supported an opposite
conclusion.”) (internal quotations and citations omitted). Therefore, the ALJ’s
mental RFC determination is supported by at least one physician, the ALJ did not
come to an unreasonable conclusion.
III. CONCLUSION
Accordingly, the Commissioner’s objections [15] are SUSTAINED. The
Court hereby REJECTS Magistrate Judge Stephanie Dawkins Davis’s February 23,
2017 Report and Recommendation [14], GRANTS Defendant Commissioner’s
Motion for Summary Judgment [13], DENIES Plaintiff Kevin Harper’s Motion for
Summary Judgment [10], and REMANDS this matter to the Commissioner for
further proceedings, if necessary.
SO ORDERED.
Dated: May 23, 2017
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

Detroit, MI

I hereby certify that a copy of the foregoing document was mailed to the attorneys
of record on this date, May 23, 2017, by electronic and/or ordinary mail.

/s/Tanya Bankston
Case Manager, [phone]

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