Ranalli v. Colvin

Filing 28

ORDER Adopting Report and Recommendation for 23 Report and Recommendation, GRANTING 20 Motion for Summary Judgment filed by Carolyn W. Colvin, DENYING 17 Motion for Summary Judgment filed by Christopher D. Ranalli Signed by District Judge Marianne O. Battani. (KDoa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CHRISTOPHER D. RANALLI,
Plaintiff,
CASE NO. 2:15-cv-14039
v.
HON. MARIANNE O. BATTANI
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_______________________ __________/

OPINION AND ORDER OVERRULING PLAINTIFF’S
OBJECTIONS, ADOPTING THE REPORT AND RECOMMENDATION,
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

I.

INTRODUCTION
Before the Court are Plaintiff Christopher Ranalli’s objections to the Magistrate

Judge’s Report & Recommendation (“R&R”). (Doc. 24). Magistrate Judge David R.
Grand considered the parties’ cross motions for summary judgment and, on November
7, 2016, entered an R&R. (Doc. 23). In the R&R, Magistrate Judge Grand
recommended that the Court grant the Commissioner’s motion for summary judgment,
deny Plaintiff’s motion for summary judgment, and affirm the Administrative Law
Judge’s decision. For the reasons that follow, the Court OVERRULES Plaintiff’s
objections, ADOPTS the R&R, GRANTS the Commissioner’s Motion for Summary
Judgment (Doc. 20), and DENIES Plaintiff’s Motion for Summary Judgment (Doc. 17).
II.

STATEMENT OF FACTS

As the parties have not objected to the R&R’s summary of the facts and
procedural history, the Court adopts that portion of the R&R. (See Doc. 23, pp. 2-11).
III.

STANDARD OF REVIEW
A. Objections to a Magistrate Judge’s R&R
A district court must conduct a de novo review of the portions of a magistrate

judge’s report and recommendation to which a party objects. 28 U.S.C. § 636(b)(1).
The district “court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate” judge. Id. The requirement of de novo
review “is a statutory recognition that Article III of the United States Constitution
mandates that the judicial power of the United States be vested in judges with life
tenure.” United States v. Shami, 754 F.2d 670, 672 (6th Cir. 1985). Accordingly,
Congress enacted 28 U.S.C. § 636(b)(1) to “insure[ ] that the district judge would be the
final arbiter” of a matter referred to a magistrate. Flournoy v. Marshall, 842 F.2d 875,
878 (6th Cir. 1987).
The Sixth Circuit has made clear that “[o]verly general objections do not satisfy the
objection requirement.” Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006). Only
specific objections are entitled to de novo review; vague and conclusory objections
amount to a complete failure to object as they are not sufficient to pinpoint those
portions of the R&R that are legitimately in contention. Mira v. Marshall, 806 F.2d 636,
637 (6th Cir.1986) (per curiam). “The objections must be clear enough to enable the
district court to discern those issues that are dispositive and contentious.” Miller v.
Currie, 50 F.3d 373, 380 (6th Cir. 1995). "‘[O]bjections disput[ing] the correctness of the

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magistrate's recommendation but fail[ing] to specify the findings . . . believed [to be] in
error' are too general.” Spencer, 449 F.3d at 725 (quoting Miller, 50 F.3d at 380).
B. Standard of Review Applicable to Social Security Cases
This Court has jurisdiction to review the Commissioner's final administrative
decision pursuant to 42 U.S.C. § 405(g). Judicial review is limited to determining
whether the Commissioner’s decision is supported by substantial evidence and was
made pursuant to proper legal standards. Rogers v. Comm'r of Soc. Sec., 486 F.3d
234, 241 (6th Cir. 2007). Substantial evidence is "more than a scintilla of evidence but
less than a preponderance; it is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." Id. (internal quotation marks omitted). If
the Commissioner's decision is supported by substantial evidence, "it must be affirmed
even if the reviewing court would decide the matter differently and even if substantial
evidence also supports the opposite conclusion." Cutlip v. Sec'y of Health & Human
Servs., 25 F.3d 284, 286 (6th Cir. 1994) (internal citations omitted).
When reviewing the Commissioner's factual findings for substantial evidence, the
Court is limited to an examination of the record and must consider that record as a
whole. Wyatt v. Sec'y of Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992).
There is no requirement, however, that either the Commissioner or this Court discuss
every piece of evidence in the administrative record. Kornecky v. Comm'r of Soc. Sec.,
167 F. App'x 496, 508 (6th Cir. 2006). Further, this Court does "not try the case de
novo, resolve conflicts in evidence, or decide questions of credibility." Bass v.
McMahon, 499 F.3d 506, 509 (6th Cir. 2007).

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IV. DISCUSSION
A. The Residual Functional Capacity
Plaintiff first contends that the Magistrate Judge erred in failing adequately to
address his contentions regarding the residual functional capacity (“RFC”) findings
made by the Administrative Law Judge (“ALJ”). Plaintiff observes that the only medical
source to have rendered an RFC opinion was consultative examiner Jack Salomon,
M.D. That opinion suggested physical limitations greater than those adopted by the ALJ
in forming the RFC (see Tr. 659); however, the ALJ afforded this opinion “less than
significant weight,” (Tr. 26). Plaintiff thus contends that the ALJ impermissibly “played
doctor” by substituting his own lay opinion for the RFC.
The same argument was raised before and considered by the Magistrate Judge.
The Magistrate Judge accurately noted that the ALJ provided specific reasons for
assigning Dr. Salomon’s opinion less than significant weight, including lack of adequate
support and inconsistency with his own objective examination findings. (Doc. 23, pp.
17-18). Specifically, the R&R states:
For example, the ALJ recognized that Dr. Salomon identified
abnormalities, including an inability to squat, difficulty walking on heels
and toes, a fine tremor of the hands, and relative weakness of the right
knee. (Tr. 26, 655). However, the ALJ explained that Dr. Salomon also
noted that Ranalli had no atrophy of the muscles, a good grip, was able to
walk heel to toe [though with some difficulty], and was able to use his
hands to perform fine and gross manipulations. (Tr. 26, 655).
(Id.). Further, the ALJ reasoned that Dr. Salomon’s opinion that Plaintiff would be
unable to travel without a companion was inconsistent with: “(1) Ranalli’s own report
that it was financial difficulties – rather than any medical condition – that prevented him
from using public transportation; and (2) his repeated statements that he was
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independent in his activities of daily living. (Tr. 18, 382-84, 543, 667, 734, 764, 865,
936).” (Id. at p. 18). Further, as noted in the R&R, the ALJ observed that Dr. Salomon
failed to complete the sections of the form requesting identification of the particular
medical or clinical findings supporting his assessment. (Id.). Accordingly, the
Magistrate Judge found the ALJ’s discussion determining the amount weight to accord
Dr. Salomon’s opinion to be appropriate. With respect to Plaintiff’s contention that the
ALJ impermissibly “played doctor” by failing to rely on any other medical opinion in
rejecting Dr. Salomon’s RFC opinion, the R&R concludes:
Again, this argument fails where the ALJ considered all of the evidence
presented – including Ranalli’s statements, the objective medical
evidence, and the medical opinions of record – to develop a physical RFC
that included the limitations he believed appropriate. (Tr. 20-26). See
Coldiron [v. Comm’r of Soc. Sec., 391 F. App’x 435, 439 (6th Cir. 2010).]
(Id.).
In Plaintiff’s present motion, he argues that the Magistrate Judge simply offers
post-hoc rationalizations on behalf of the ALJ. To the contrary, the R&R relies solely on
the reasoning set forth in the ALJ’s decision and not on after-the-fact rationalizations
made on behalf of the ALJ. To the extent that Plaintiff contends that the ALJ failed to
discuss any specific inconsistencies, the portions of the R&R quoted above clearly
demonstrate this is not the case. Likewise, Plaintiff contends that the R&R provides no
explanation why the ALJ was justified in rejecting Dr. Salomon’s opinion that he required
him to travel with a companion. Again, the portions of the R&R quoted above contradict
this argument.
Further, the RFC is supported by the substantial evidence of record, as aptly
summarized in the R&R. After his second surgery on his right femur to remove the
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giant cell tumor, Plaintiff followed up on June 28, 2011, with Ronald B. Irwin, M.D., his
orthopedic surgeon. (Tr. 854).
Ranalli then returned to see Dr. Irwin for the last time on June 28, 2011; at
that time, he had good range of motion with mild patellofemoral
crepitation, so physical therapy was ordered to aid in strengthening his
quadriceps. (Tr. 854). After this visit to Dr. Irwin, Ranalli did not seek any
further medical treatment until he returned to see Dr. Wein in January of
2013 for a routine physical examination and with complaints of heartburn.
(Tr. 843-45). Follow-up visits in March and April of 2013 were
unremarkable. (Tr. 839-42). When Ranalli returned to Dr. Wein in August
of 2013, he reported pain in his left knee that was, at times, worse than his
right knee pain, which made him concerned that he might have a tumor in
his left knee. (Tr. 837-38). X-rays showed only arthritic changes,
however, so he was prescribed Ultram and support stockings in addition to
Mobic. (Id.). At his next visit, in September of 2013, Ranalli reported no
improvement, so Dr. Wein advised him to use his cane regularly to take
pressure off of the knee, indicating that Neurontin would be considered if
the issue worsened. (Tr. 835-36). At a return visit in December of 2013,
Ranalli reported that he was “doing well” and had no complaints other than
chronic knee and leg pain from his history of surgery and arthritis. (Tr.
980-81). In March of 2014, Dr. Wein performed a routine physical, noting
that Ranalli’s symptoms included only occasional muscle aches. (Tr. 97779). He last saw Dr. Wein in June of 2014, reporting an increase in right
leg pain; Dr. Wein prescribed Norco and referred Ranalli to an oncologist
to make sure there was no recurrence of his tumor. (Tr. 972-73).
(Doc. 23, pp. 6-7). The record therefore demonstrates that for the extended period
between June 2011 and January 2013, Plaintiff went without medical treatment and did
not complain again of knee pain until August 2013. The objective diagnostic testing
reveals only arthritic changes, and his pain is being conservatively managed with
medication. Though the RFC does not account for the documented limitation that
Plaintiff must use a cane to ambulate, this additional limitation would not impact the jobs
the Vocational Expert (“VE”) testified Plaintiff would be able to perform. Specifically, the
VE testified that Plaintiff would be able to perform the job of hand packer. (Tr. 27).
When a different VE was questioned at an earlier oral hearing regarding whether use of
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a cane would affect the list of possible jobs Plaintiff could perform, which also included
hand packer, the VE stated that it would not. (Tr. 107). Consequently, substantial
evidence supports the ALJ’s RFC determination and does not indicate any additional
limitations.
The Court also agrees with the Magistrate Judge’s conclusion that the ALJ did
not impermissibly “play doctor.” “The Social Security Act instructs that the ALJ – not a
physician – ultimately determines a claimant’s RFC.” Coldiron, 391 F. App’x at 439.
See also 20 C.F.R. § 404.1527(d)(2) (“Although we consider opinions from medical
sources on issues such as . . . your residual functional capacity . . . the final
responsibility for deciding these issues is reserved to the Commissioner.”). Where an
ALJ properly reviewed and weighed the evidence of record and where the legal
determinations are supported by substantial evidence, allegations that he impermissibly
“played doctor” are unavailing. See, e.g., Gibbens v. Comm’r of Soc. Sec., 659 F. App’x
238, 2016 U.S. App. LEXIS 15198, at *19-20 (6th Cir. 2016); Griffith v. Comm’r of Soc.
Sec., 582 F. App’x 555, 562 (6th Cir. 2014). Here, as discussed above, the ALJ’s RFC
findings are supported by substantial evidence.
Finally, Plaintiff contends that if the ALJ found Dr. Salomon’s report to be
ambiguous or inadequately explained, the ALJ should have re-contacted the doctor
instead of simply rejecting the opinion. However, an ALJ is not required to re-contact a
consultative examiner whose opinion is not sufficiently supported by objective medical
evidence. See Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 274 (6th Cir. 2010)
(where a treating source’s “opinion was deemed unpersuasive not because its bases
were unclear, but because they were not corroborated by objective medical evidence,”
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there was no obligation to re-contact the treating physician). Indeed, Social Security
Ruling 96-5p requires the ALJ to re-contact only a treating source – and not a
consultative examiner – if that source’s opinion is unclear. Here, Dr. Salomon is not a
treating source, nor did the ALJ find his opinion to be unclear but simply unsupported by
objective findings. Therefore, there was no obligation to re-contact.
B. Obesity Analysis
Plaintiff also contends that the ALJ did not properly consider his obesity in
combination with his other impairments, as required by Social Security Ruling 02-1p.
Plaintiff claims that the Magistrate Judge erred by failing to address the “detailed
guidance” set forth in SSR 02-1p with respect to how an ALJ is to assess obesity in
conjunction with other impairments.
The R&R aptly summarizes the guidance offered in SSR 02-1p. (Doc. 23, pp.
20-21). It notes that obesity is recognized “as ‘a risk factor’ that increases an
individual’s chances of developing impairments and notes that obesity often complicates
chronic diseases of the cardiovascular, respiratory, and musculoskeletal body systems.”
(Id. at 21). As acknowledged in Plaintiff’s own objections (Doc. 24, p. 5), the R&R
states that the ruling “does not mandate a particular mode of analysis for an obese
claimant.” (Doc. 23, p. 21 ) (citing Bledsoe v. Barnhart, 165 F. App’x 408, 411-12 (6th
Cir. 2006)). Nonetheless, the ALJ must do more than reference the fact of Plaintiff’s
obesity in passing, Shilo v. Comm’r of Soc. Sec., 600 F. App’x 956, 959 (6th Cir. 2015)
(citing Norman v. Astrue, 694 F.Supp.2d 738, 741-42 (N.D. Ohio 2010)), and must
“consider the claimant's obesity, in combination with other impairments, at all stages of

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the sequential evaluation,” Nejat v. Comm'r of Soc. Sec., 359 F. App'x 574, 577 (6th Cir.
2009).
The Magistrate Judge then evaluated the ALJ’s consideration of Plaintiff’s
obesity:
In this case, it is clear that the ALJ considered the effects of Ranalli’s
obesity. As an initial matter, the ALJ specifically found that Ranalli’s
obesity was a severe impairment. (Tr. 17). In addition, here, as in
Bledsoe, the ALJ not only specifically recognized SSR 02-1p but also
explicitly discussed treatment records with findings regarding obesity and
weight gain. (Tr. 17, 21, 24, 655, 841). For example, the ALJ identified
Ranalli as “clinically obese” with a BMI of 38.7 when he weighed 240
pounds at the consultative examination in May of 2011.4 (Tr. 21, 655).
Moreover, the ALJ limited Ranalli to light work with additional restrictions
related to standing, walking, postural activities, commercial driving, and
the use of foot controls. (Tr. 20). Ranalli has not even asserted – let
alone pointed to specific evidence demonstrating – that his obesity
increased the severity of his other impairments or affected his functioning
to a greater extent than reflected in the ALJ’s RFC finding. For these
reasons, Ranalli simply has not shown that the ALJ erred in considering
the functional effects of his obesity. See, e.g., Essary v. Comm’r of Soc.
Sec., 114 F. App’x 662, 667 (6th Cir. 2004) (finding that the ALJ took
Essary’s obesity into account and the “absence of further elaboration on
the issue of obesity likely stems from the fact that Essary failed to present
evidence of any functional limitations resulting specifically from her
obesity”).
(Doc. 23, pp. 21-22). Plaintiff has not offered any specific objections regarding the
Magistrate Judge’s analysis. Accordingly, the Court is not obligated to reassess the
identical arguments presented before the Magistrate Judge with no identification of error
in the Magistrate Judge’s recommendation. See, e.g., Owens v. Comm’r of Soc. Sec.,
No 1:12-47, 2013 U.S. Dist. LEXIS 44411 (W.D. Mich. Mar. 28, 2013) (“Plaintiff's
objections are merely recitations of the identical arguments that were before the
magistrate judge. This Court is not obligated to address objections made in this form
because the objections fail to identify the specific errors in the magistrate judge's
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proposed recommendations.”); Davis v. Caruso, No. 07-10115, 2008 U.S. Dist. LEXIS
13713, at *5 (E.D. Mich. Feb. 25, 2008) (denying an objection to an R&R where Plaintiff
“merely rehash[ed] his arguments” made before the Magistrate Judge). Accordingly,
Plaintiff’s arguments are unavailing, and the Court adopts the analysis and conclusions
set forth in the R&R.
V.

CONCLUSION
For the foregoing reasons, the Court OVERRULES Plaintiff’s objections,

ADOPTS the R&R, GRANTS the Commissioner’s Motion for Summary Judgment and
DENIES Plaintiff’s Motion for Summary Judgment.
IT IS SO ORDERED.

Date: March 3, 2017

s/Marianne O. Battani
MARIANNE O. BATTANI
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to
their respective email addresses or First Class U.S. mail to the non-ECF participants on March 3, 2017.
s/ Kay Doaks
Case Manager

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