Dame v. Social Security
OPINION and ORDER Adopting 16 Report and Recommendation, Denying 13 Motion for Summary Judgment filed by Sherry Dame, Granting 14 Motion for Summary Judgment filed by Commissioner of Social Security, Affirming the Findings of the Commissioner and Dismissing Complaint. Signed by District Judge David M. Lawson. (SPin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case Number 16-10043
Honorable David M. Lawson
Magistrate Judge Patricia T. Morris
COMMISSIONER OF SOCIAL SECURITY,
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION, DENYING PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT, GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT, AFFIRMING THE FINDINGS OF THE
COMMISSIONER, AND DISMISSING COMPLAINT
The plaintiff filed the present action on January 6, 2016 seeking review of the
Commissioner’s decision denying the plaintiff’s claim for a period of disability and disability
insurance benefits under Title II of the Social Security Act. The case was referred to United States
Magistrate Judge Patricia T. Morris under 28 U.S.C. § 636(b)(1)(B) and E.D. Mich. LR 72.1(b)(3).
Thereafter, the plaintiff filed a motion for summary judgement to reverse the decision of the
Commissioner and remand the case for an award of benefits or further consideration by the
administrative law judge. The defendant filed a motion for summary judgment requesting
affirmance of the decision of the Commissioner. Magistrate Judge Morris filed a report on October
18, 2016 recommending that the plaintiff’s motion for summary judgment be denied, the defendant’s
motion for summary judgment be granted, and the decision of the Commissioner be affirmed. The
plaintiff filed timely objections to the recommendation, and the defendant filed a response to the
plaintiff’s objections. This matter is now before the Court.
The filing of timely objections to a report and recommendation requires the court to “make
a de novo determination of those portions of the report or specified findings or recommendations
to which objection is made.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667
(1980); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This de novo review requires the
court to re-examine all of the relevant evidence previously reviewed by the magistrate judge in order
to determine whether the recommendation should be accepted, rejected, or modified in whole or in
part. 28 U.S.C. § 636(b)(1).
“The filing of objections provides the district court with the opportunity to consider the
specific contentions of the parties and to correct any errors immediately,” Walters, 638 F.2d at 950,
enabling the court “to focus attention on those issues-factual and legal-that are at the heart of the
parties’ dispute,” Thomas v. Arn, 474 U.S. 140, 147 (1985). As a result, “‘[o]nly those specific
objections to the magistrate’s report made to the district court will be preserved for appellate review;
making some objections but failing to raise others will not preserve all the objections a party may
have.’” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (quoting Smith v.
Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987)).
The Court has reviewed the file, the report and recommendation, the plaintiff’s objections,
and the defendant’s response, and has made a de novo review of the administrative record in light
of the parties’ submissions.
The plaintiff, who is now 58 years old, filed an application for disability insurance benefits
on June 17, 2013, when she was 54. The plaintiff has an associates degree, and previously worked
as a teacher’s aide, cashier, and store laborer. In her application for disability insurance benefits,
the plaintiff alleged a disability onset date of January 1, 2013. The plaintiff has been diagnosed with
a variety of ailments, including degenerative disc disease, carpal tunnel syndrome, obesity,
hypertension, acid reflux disease, diverticulosis, asthma, and diabetes mellitus.
The plaintiff’s application for a period of disability and disability insurance benefits was
initially denied on October 16, 2013. The plaintiff timely filed a request for an administrative
hearing, and on May 18, 2015 the plaintiff appeared before Administrative Law Judge (ALJ)
Andrew G. Sloss. On May 22, 2015, ALJ Sloss issued a written decision in which he found that the
plaintiff was not disabled. On November 11, 2015, the Appeals Council denied the plaintiff’s
request for review of the ALJ’s decision. The plaintiff filed her complaint seeking judicial review
on January 6, 2016.
ALJ Sloss reached his conclusion that the plaintiff was not disabled by applying the five-step
sequential analysis prescribed by the Secretary in 20 C.F.R. § 404.1520. He found that the plaintiff
had not engaged in substantial gainful activity since the alleged onset date of January 1, 2013 (step
one); the plaintiff suffered from degenerative disc disease, carpal tunnel syndrome, and obesity,
impairments which were “severe” within the meaning of the Social Security Act (step two); none
of those impairments alone or in combination met or equaled a listing in the regulations (step three);
and the plaintiff is capable of performing past relevant work as a cashier, which was unskilled and
required light exertion (step four).
In applying the fourth step, the ALJ concluded that the plaintiff had the residual functional
capacity to perform a range of light work, except that she can climb ramps or stairs frequently, but
must avoid concentrated exposure to vibration. A vocational expert testified that the plaintiff’s
residual functional capacity allowed her to perform her previous work as a cashier, as that job is
generally performed. Based on those findings, the ALJ concluded that the plaintiff was not disabled
within the meaning of the Social Security Act.
In her motion for summary judgment, the plaintiff advanced three arguments: (1) that the
ALJ erred in assigning little weight to the opinions from treating sources Dr. Michael Giacalone and
Nurse Practitioner Topaz Holloway; (2) that the ALJ improperly assessed and determined the
plaintiff’s credibility; and (3) that the ALJ erred in finding that the plaintiff was capable of
performing the job of cashier. The magistrate judge considered each of those arguments in turn and
rejected them. The plaintiff’s objections to the report and recommendation do not contain any claim
that the magistrate judge misapplied the law or committed specific error. Rather, the objections
mainly are a rehash of the summary judgment arguments and an assertion of disagreement with the
magistrate judge’s conclusions.
A. Objection One
The plaintiff argues that the magistrate judge erred by concluding that the weight the ALJ
gave to the plaintiff’s treating physician’s and treating nurse practitioner’s opinions was supported
by substantial evidence. She takes no issue that the ALJ correctly concluded that Dr. Giacalone’s
signature on the medical report deserved no weight, because there was no record that he ever saw
or treated the plaintiff. Nor does she contest the finding that a nurse practitioner is not an
“acceptable medical source” within the meaning of 20 C.F.R. § 404.1527(c). Instead, she argues
that the ALJ too easily discounted the report, which also was signed by the nurse practitioner, in
violation of Social Security Ruling (SSR) 06-3p, which requires the ALJ to consider various factors
when deciding the weight to be given to opinions from “other sources.” However, as the magistrate
judge explained in detail, the ALJ gave ample reasons for giving the opinion little weight, and those
reasons were supported by substantial record evidence. That explanation is cogent and accurate, and
the Court adopts it. The discussion need not be repeated at length here. It is sufficient to note that
the August 2012 EMG showed mild carpal tunnel syndrome, and the April 2015 study characterized
the plaintiff’s carpal tunnel syndrome as borderline in severity. Dr. Bhangu’s recommendations to
wear wrist splints and to avoid repetitive movements do not support the severe limitations in Nurse
Holloway’s opinion. The record also shows that in August 2012, Dr. Bhangu observed that the
plaintiff looked comfortable, she was in no acute stress, her CN examination was nonfocal, her
motor strength and cerbellar examination were normal, she had no drift, pronation, or muscular
atrophy, and her sensory examination was unremarkable. Moreover, the ALJ found that Nurse
Holloway’s opinion was internally inconsistent, her treatment notes failed to support the severe
restrictions in her assessment, and while her opinion was co-signed by a doctor, there was no
evidence that Dr. Giacolone ever treated the plaintiff.
Although there may be other evidence in the record that supports the plaintiff’s disability
contentions, in making the substantiality of evidence determination, the Court does not base its
decision on a single piece of evidence and disregard other pertinent evidence when evaluating
whether substantial evidence in the record exists. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir.
1978). Therefore, where the Commissioner’s decision is supported by substantial evidence, it must
be upheld even if the record might support a contrary conclusion. Smith v. Sec’y of Health &
Human Servs., 893 F.2d 106, 108 (6th Cir. 1989). The substantial evidence standard “presupposes
that there is a zone of choice within which decisionmakers can go either way, without interference
from the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc) (internal quotes and
citations omitted). When deciding under 42 U.S.C. § 405(g) whether substantial evidence supports
the ALJ’s decision, the Court “may not try the case de novo, nor resolve conflicts in evidence, nor
decide questions of credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984); see also
Jordan v. Comm’r of Soc. Sec., 548 F.3d 417, 422 (6th Cir. 2008); Smith v. Halter, 307 F.3d 377,
379 (6th Cir. 2001). Instead, the Court must uphold “the ALJ’s decision if there is ‘such relevant
evidence as a reasonable mind might accept’ as sufficient to support the ALJ’s conclusion.” Bass
v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007) (quoting Foster v. Halter, 279 F.3d 348, 353 (6th
Cir. 2001 (citation omitted)). “The substantial evidence standard is less exacting than the
preponderance of evidence standard.” Ibid. (citing Bell v. Comm’r of Soc. Sec., 105 F.3d 244, 246
(6th Cir. 1996). If the ALJ’s decision is supported by substantial evidence, reversal would not be
warranted even if substantial evidence supports the opposite conclusion. Longworth v. Comm’r of
Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005).
The magistrate judge reached the correct conclusion and accurately applied the governing
law. The first objection will be overruled.
B. Objection Two
The plaintiff argues that the magistrate judge erred by finding that the ALJ’s credibility
analysis was accurate. The plaintiff contends that the ALJ’s credibility finding was flawed because
it ignored Social Security Ruling 96-7p and 20 C.F.R. § 404.1529. And she argues that the
magistrate judge did not point to any inconsistency in the record that would support a non-credibility
or partial credibility finding. She insists that the objective medical evidence supports her functional
limitations. However, as noted earlier, substantial evidence also supports the ALJ’s determination,
and that is sufficient to affirm the findings of the Commissioner. Smith, 893 F.2d at 108.
The magistrate judge correctly concluded that the ALJ followed the proper procedure to
evaluate the plaintiff’s subjective complaints and the objective medical evidence in the record, and
the ALJ provided his rationale for his finding. The defendant notes that the magistrate discussed
several inconsistencies in the record, including that the consultative examiner found full grip
strength and dexterity; there was a lack of evidence that the plaintiff sought treatment for other
conditions, including diverticulitis, asthma, and diabetes mellitus; and there was a tension between
the plaintiff’s claim that she stopped working in 2008, to care for her husband, and her statement
that she was going to quit working due to her medical conditions.
The magistrate judge also found accurately that the ALJ provided multiple reasons to support
his finding that the plaintiff’s complaints of intractable back and hand pain were partially credible.
The ALJ noted that the evidence only indicated mild to moderate spondylosis, there was no evidence
that substantiated the plaintiff’s assertions regarding her ability to stand and walk and her need for
an electric cart, she had no observed difficulty walking at the hearing, her carpal tunnel syndrome
was characterized as borderline, the consultative examiner found that her grip strength and dexterity
were full, there was no evidence of treatment for the multiple impairments she claimed to have, and
she provided inconsistent explanations for why she stopped working.
The second objection will be overruled.
C. Objection Three
Finally, the plaintiff argues that the magistrate judge erred by failing to correct the ALJ’s
determination that the plaintiff could perform work as a cashier. Repeating her summary judgment
argument, the plaintiff asserts again that the ALJ erred in his residual functional capacity assessment
by finding that the plaintiff was only limited to avoiding concentrated exposure to vibration. The
plaintiff argues that the ALJ did not have to find that her carpal tunnel syndrome was “totally
disabling” in order to make a disability finding. She argues that a finding of less frequent use of no
more than two hours was appropriate, and such a finding would preclude the plaintiff from engaging
in her past work as a cashier.
The magistrate judge thoroughly considered and discussed this argument in her report. The
Court finds no flaw in the magistrate judge’s reasoning or conclusions and adopts them. The third
objection will be overruled.
After a de novo review of the entire record and the materials submitted by the parties, the
Court concludes that the magistrate judge properly reviewed the administrative record and applied
the correct law in reaching her conclusion. The Court has considered the plaintiff’s objections to
the report and finds them to lack merit.
Accordingly, it is ORDERED that the magistrate judge’s report and recommendation [dkt.
#16] is ADOPTED.
It is further ORDERED that the plaintiff’s objections [dkt. #17] are OVERRULED.
It is further ORDERED that the plaintiff’s motion for summary judgment [dkt. #13] is
It is further ORDERED that the defendant’s motion for summary judgment [dkt #14] is
GRANTED. The findings of the Commissioner are AFFIRMED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: February 22, 2017
PROOF 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 February 22, 2017.
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