Ochs v. Commissioner of Social Security Administration

Filing 16

ORDER Accepting Report and Recommendation for 11 Motion for Summary Judgment filed by Commissioner of Social Security Administration, 13 Report and Recommendation, 10 Motion for Summary Judgment and Dismissing Action. Signed by District Judge Denise Page Hood. (TMcg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROSARIO OCHS,
Plaintiff,
v.

Case No. 16-10309
Hon. Denise Page Hood

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
/
ORDER ACCEPTING REPORT AND RECOMMENDATION
AND DISMISSING ACTION
This matter is before the Court on Magistrate Judge Anthony P. Patti=s
Report and Recommendation. [Doc. No. 13] Timely objections and a response to
the objections were filed in this matter. [Doc. Nos. 14 and 15]
Judicial review of the Commissioner=s decision is limited in scope to
determining whether the Commissioner employed the proper legal criteria in
reaching his conclusion. Garner v. Heckler, 745 F.2d 383 (6th Cir. 1984). The
credibility findings of an administrative law judge (AALJ@) must not be discarded
lightly and should be accorded great deference. Hardaway v. Secretary of Health
and Human Services, 823 F.2d 922, 928 (6th Cir. 1987). A district court=s review
of an ALJ=s decision is not a de novo review. The district court may not resolve
1

conflicts in the evidence nor decide questions of credibility. Garner, 745 F.2d at
397. The decision of the Commissioner must be upheld if it is supported by
substantial evidence, even if the record might support a contrary decision or if the
district court arrives at a different conclusion. Smith v. Secretary of HHS, 893 F.2d
106, 108 (6th Cir. 1984); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986).
The Court has had an opportunity to review this matter and finds that the
Magistrate Judge reached the correct conclusions for the proper reasons. Plaintiff
objects to the Magistrate Judge=s: (a) finding that the ALJ=s Aerroneous@ conclusion
that Plaintiff worked 16 hours per week was harmless error; (b) determination that
there was substantial evidence to support the ALJ=s finding that Plaintiff worked 16
hours per week; and (c) finding that the ALJ did not err in failing to remand the
matter to the Commissioner based on a consideration of additional evidence
provided to the Appeals Council by Plaintiff.
With respect to the first two objections, Plaintiff argues that the ALJ=s
conclusion that Plaintiff worked 16 hours per week, rather than 16 hours per
month, was erroneous and that it was not a harmless error. Plaintiff asserts that,
because the number of hours worked by Plaintiff was the first item listed by the
ALJ to support his finding that Plaintiff was not disabled, the number of hours
worked was central to the ALJ=s determination regarding disability.
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The Court is not persuaded by Plaintiff=s argument. First, as the Magistrate
Judge noted, there is substantial evidence in the record to support a finding that
Plaintiff worked 16 hours per week: (a) Plaintiff acknowledged working as an
adult foster care aide (both during the relevant time period and long after the
hearing date); (b) Dr. Prakash=s reports stated that Plaintiff worked 16 hours per
week; and (c) Plaintiff=s earnings records showed that she worked at least 41 hours
per month between February 2012 and November 2013, not the 16 hours per
month claimed by Plaintiff or the 24 hours per month that would result from
working 6 hours per week, as Plaintiff testified. Although Plaintiff accurately
notes the presence of conflicting evidence, that conflicting evidence does not
obviate the fact that there was substantial evidence to support the ALJ=s finding.
Second, the Court concludes that Plaintiff has not demonstrated that, even if
the ALJ=s finding regarding the number of hours worked by Plaintiff was erroneous
and was not considered, the ALJ would have concluded that Plaintiff was disabled.
The ALJ=s decision cited the nature of the work Plaintiff performed (including
driving, dusting, doing dishes and laundry, picking up medications, going to the
store, and wiping down toilets), Plaintiff=s continued smoking despite instructions
to quit, the absence of opinions by medical professionals that supported a finding
of disability, and the tasks Plaintiff could perform in her personal life.
3

The Court

finds that those other factors constituted substantial (and sufficient) evidence to
support a finding that Plaintiff was not disabled.
In her third objection, Plaintiff contends that she is entitled to a sentence six
remand because the Appeals Council failed to consider evidence of her treatment
after June 30, 2014. A Adistrict court can . . . can remand the case for further
administrative proceedings [pursuant to sentence six] in light of the evidence, if a
claimant shows that the evidence is new and material, and that there was good
cause for not presenting it in the prior proceeding.@ Cline v. Comm=r of Soc. Sec.,
96 F.3d 146, 148 (6th Cir. 1996). Evidence is deemed material Aif there is a
reasonable probability that the [Commissioner] would have reached a different
disposition of the disability claim if presented with the new evidence.@ Hollon ex
rel. Hollon v. Comm=r of Soc. Sec., 447 F.3d 477, 483 (6th Cir. 2006).
In this case, the evidence at issue consists of approximately 80 pages of
medical records Plaintiff provided to the Appeals Council that was not available to
the ALJ. Plaintiff asserts that the Appeals Council did not adequately consider
those medical records, but she does not specify how these medical records are
material or how the contents of them would dictate a different disposition of her
disability claim. Like the Magistrate Judge, the Court finds that Plaintiff has not
shown that the new evidence bears on her health prior to her date last insured (June
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30, 2014), and substantial evidence supports the ALJ=s finding that Plaintiff was
not disabled.
For the reasons set forth above, the Court finds that the ALJ=s decision,
including but not limited to the determinations Plaintiff challenges in her
objections, was supported by substantial evidence and was not based on any legally
erroneous determination. Further, the Court accepts the Magistrate Judge=s Report
and Recommendation as this Court=s findings of fact and conclusions of law.
Accordingly,
IT IS ORDERED that the Report and Recommendation of Magistrate Judge
Anthony P. Patti [Doc. No. 13, filed December 8, 2016] is ACCEPTED and
ADOPTED as this Court=s findings of fact and conclusions of law.
IT IS FURTHER ORDERED that Plaintiff=s Objections [Doc. No. 14,
filed December 21, 2016] are OVERRULED.
IT IS FURTHER ORDERED that Plaintiff=s Motion for Summary
Judgment [Doc. No. 10, filed May 12, 2016] is DENIED.
IT IS FURTHER ORDERED that Defendant=s Motion for Summary
Judgment [Doc. No. 11, filed June 6, 2016] is GRANTED.

IT IS FURTHER ORDERED that this action is DISMISSED with
prejudice.

DATED: January 17, 2017

s/Denise Page Hood
DENISE PAGE HOOD
United States Chief District Judge

Certificate of Service
The undersigned certifies that the foregoing document was served upon counsel of
record and any unrepresented parties via the Court’s ECF Systems to their
respective email or First Class U.S. Mail addresses disclosed on the Notice of
Electronic Filing on January 17, 2017.
s/Teresa McGovern
Case Manager Generalist