Daniels v Social Security, Commissioner of,

Filing 23

OPINION AND ORDER OVERRULING PLAINTIFFS OBJECTIONS, ADOPTING THE REPORT AND RECOMMENDATION, GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT, AND DENYING PLAINTIFFS MOTION FOR SUMMARY JUDGMENT Signed by District Judge Marianne O. Battani. (KDoa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JULIE DANIELS,
Plaintiff,
CASE NO. 2:16-cv-10452
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 is Plaintiff Julie Daniels’ objection to the Magistrate Judge’s

Report & Recommendation (“R&R”). (Doc. 22). Magistrate Judge Mona K. Majzoub
considered the parties’ cross motions for summary judgment and, on May 22, 2017,
entered an R&R. (Doc. 21). In the R&R, Magistrate Judge Majzoub recommended that
the Court grant the Commissioner’s motion for summary judgment and deny Plaintiff’s
motion for summary judgment. For the reasons that follow, the Court OVERRULES
Plaintiff’s objection, ADOPTS the R&R, GRANTS the Commissioner’s Motion for
Summary Judgment (Doc. 18), 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. 21, p. 2).

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
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
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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).

IV. DISCUSSION
Plaintiff contends the ALJ failed to consider all of the evidence of record, before
concluding that there were a significant number of jobs in the national economy suitable
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for Plaintiff. Specifically, Plaintiff states that her need to take substantial time off of work
due to her mental impairments substantially limits the opportunities available to her.
The same argument was raised before and considered by the Magistrate Judge.
The Magistrate Judge noted that the ALJ did in fact find much of Dr. Harley’s opinion,
the vocational expert, to be persuasive, however, the ALJ also found some
inconsistencies with Plaintiff’s mental status exam results. (Doc. 21 at 8). Specifically,
the R&R states:
The ALJ reviewed Dr. Harley’s opinion and found much of it to be
persuasive. But the ALJ found Dr. Harley’s opinion regarding Plaintiff’s
deficiencies in concentration, persistence, and pace to be inconsistent
with the results of Plaintiff’s May and June 2013 mental status exams
administered by her treating psychiatrist, Dan G. Guyer, M.D., which
revealed that Plaintiff’s thought processes, attention, concentration,
comprehension, memory, judgment, and insight were ‘okay.’ Because the
ALJ did not adopt Dr. Harley’s opinion regarding Plaintiff’s deficiencies in
concentration, persistence, and pace, he likewise did not incorporate into
the RFC Dr. Harley’s opinion that Plaintiff would likely need greater than
average work absence to attend her ongoing mental health appointments
and medication reviews as a result of those deficiencies. Therefore, the
ALJ’s non-reliance on the VE’s testimony that there would be no
competitive employment for Plaintiff if she would need to be off task for
more than 30 percent of the workday or have more than eight absences
per year was not erroneous.
(Doc. 21 at 8) (internal citations omitted).
Plaintiff objects to the Magistrate Judge, arguing that although the R&R implies
the ALJ made mention of Plaintiff’s vocational opportunity limitations, it makes no
mention of where he ALJ discussed this. Plaintiff further reiterates her previous
argument, claiming that this evidence was ignored by the ALJ. Plaintiff’s VE, Dr.
Harley, testified to the fact that the number light, unskilled opportunities such as that of
a general office clerk, was 10,000 regionally. Dr. Harley further testified that there were
2,200 visual inspector positions nationally and 5,000 housekeeper positions regionally.
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When questioned as to how these positions structured the need for completing the
work, Dr. Harley noted that the work must simply get done in eight hours, regardless of
if more work or less work is done in the afternoon. The ALJ later followed up with Dr.
Harley to pose a hypothetical – would there be any competitive jobs available if Plaintiff
was off-task for “maybe more than 30 percent off the day”. (Tr. 89). Dr. Harley
responded that there would be no jobs in this scenario, and that the tolerance for being
off-task would be no more than 20 percent of the day. Dr. Harley also stated that the
tolerance for absences would be no more than eight days in a year.
As noted in the R&R, the ALJ specifically states that he found much of Dr.
Harley’s opinion to be persuasive. However, the ALJ noted that “Dr. Harley notes a
marked finding in concentration, persistence, or pace, [that is] simply not consistent with
the treating source mental status exam of record that repeatedly reveal[ed] satisfactory
findings.” (Tr. 61). Plaintiff’s May and June 2013 mental status exams revealed that
Plaintiff’s thought processes, attention, concentration, comprehension, memory,
judgment, and insight were “okay.” Id. The ALJ did not adopt Dr. Harley’s opinion
regarding Plaintiff’s deficiencies in concentration, persistence, and pace, and therefore
did not incorporate the specific opinion that Plaintiff would likely need greater than
average work absence to attend her ongoing mental health appointments and
medication reviews as a result of those deficiencies. The ALJ however did note that his
decision was based on the testimony of the vocational expert, and specifically
referenced the regional opportunities numbers presented by Dr. Harley. (Tr. 63).
Contrary to Plaintiff’s belief, the ALJ’s opinion does not ignore any of Dr. Harley’s

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testimony, but rather specifically confronts and addresses both its consistencies and
inconsistencies.
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, 974 F.2d at 683. Having considered the record as a whole, and in
consideration of Plaintiff’s objections, the Court concludes the ALJ’s non-reliance on the
VE’s testimony as to her competitive employment opportunities, if she would need to be
off-task for more than 30 percent of the workday or have more than eight absences per
year, was not erroneous.
V.

CONCLUSION
For the foregoing reasons, the Court OVERRULES Plaintiff’s objection, 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: September 27, 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 September 27, 2017.

s/ Kay Doaks
Case Manager

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