Al-Saidie v. SSA, Commissioner of

Filing 18

ORDER Adopting 15 Report and Recommendation Granting 12 Motion for Summary Judgment filed by SSA, Commissioner of, and Denying 11 Motion for Summary Judgment filed by Saleh Hamoud Al-Saidie - Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SALEH HAMOUD AL-SAIDIE,
Plaintiff,

Case No. 16-10471
Paul D. Borman
United States District Judge

v.
COMMISSIONER OF SOCIAL
SECURITY,

Stephanie Dawkins Davis
United States Magistrate Judge

Defendant.
______________________________/
OPINION AND ORDER:
(1) REJECTING PLAINTIFF’S OBJECTIONS (ECF NO. 16);
(2) ADOPTING THE REPORT AND RECOMMENDATION OF THE
MAGISTRATE JUDGE (ECF NO. 15);
(3) DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
(ECF NO. 11);
(4) GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT (ECF NO. 12); AND
(5) AFFIRMING THE DECISION OF THE COMMISSIONER OF
SOCIAL SECURITY
On February 24, 2017, Magistrate Judge Stephanie Dawkins Davis issued a
Report and Recommendation on the parties’ cross-motions for summary judgment.
(ECF No. 15, Report and Recommendation.) In the Report and Recommendation,
the Magistrate Judge recommended that this Court deny Plaintiff’s Motion for
Summary Judgment, grant Defendant’s Motion for Summary Judgment, and affirm
the decision of the Commissioner of Social Security (“Commissioner”).

Now before the Court are Plaintiff’s Objections to the Report and
Recommendation. (ECF No. 16, Pl.’s Objs.) Defendant filed a timely Response.
(ECF No. 17, Def.’s Resp.) Having conducted a de novo review of the parts of the
Magistrate Judge’s Report and Recommendation to which objections have been
filed pursuant to 28 U.S.C. § 636(b)(1), the Court will reject Plaintiff’s Objections
and adopt the Magistrate Judge’s Report and Recommendation.
BACKGROUND
The findings of the Administrative Law Judge (“ALJ”) and the pertinent
portions of the Administrative Record are accurately and adequately set forth in the
Report and Recommendation. There are no material inconsistencies with these
accounts and the Court incorporates those factual recitations here. (Report and
Recommendation at 2-3; ECF Nos. 7-7-1, Transcript of Social Security
Proceedings at 22-30 (hereinafter “Tr. at ___”).) The following summary contains
only the facts essential to this Court’s evaluation of Defendant’s objections.
Plaintiff applied for a period of disability, disability insurance benefits, and
supplemental security income on January 30, 2013, alleging disability beginning
December 1, 2009. (Tr. at 22.) After his claims were denied on April 9, 2013,
Plaintiff requested a hearing, and he appeared with counsel before ALJ John
Dodson on June 13, 2014. (Id.) The ALJ issued a decision on September 17, 2014,
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finding that Plaintiff was not disabled. (Tr. at 22-30.)
In that decision (tr. at 22-30), the ALJ employed the five-step evaluation
process required by 20 C.F.R. § 404.1520(a)(4), and made the following
determinations: Plaintiff has not engaged in substantial gainful activity since the
alleged disability onset date (Step 1); Plaintiff has the specific severe impairments
of degenerative disc disease, carpal tunnel syndrome, and depression (Step 2); and
Plaintiff does not have an impairment that meets or medically equals an
impairment set forth in the Commissioner’s Listing of Impairments, 20 C.F.R. Pt.
404, Subpt. P, App. 1, et seq. (Step 3). As to Step 4, the ALJ found that Plaintiff
has the residual functional capacity (“RFC”) to perform light work with certain
limitations:
simple, routine and repetitive tasks that involve no production like
standards, no more than occasional, superficial contact with the
public, and no more than occasional contact with coworkers and
supervisors; no climbing of ropes, ladders or scaffolds; occasional
balancing, stooping, kneeling, crouching and crawling; occasional
reaching in all directions with the right upper extremity; avoid
exposure to vibrations; and no more than occasional twisting
bilaterally.
(Tr. at 26.) The ALJ then found that there are jobs that exist in significant numbers
in the national economy that Plaintiff can perform (Step 5), which was the basis
for the ALJ’s ultimate conclusion that Plaintiff is not disabled within the meaning
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of the Social Security Act. (Tr. at 29-30.)
The Appeals Council of the Social Security Administration denied Plaintiff’s
request for review of the ALJ’s decision on January 16, 2016 (tr. at 1-4.), rendering
the ALJ’s determination the final decision of the Commissioner.
Plaintiff filed this action on February 9, 2016 (ECF No. 1), and the case was
referred to the Magistrate Judge the next day (ECF No. 3). The parties filed crossmotions for summary judgment in June and July of 2016. (ECF Nos. 11, 12.) The
Magistrate Judge issued the Report and Recommendation on February 24, 2017.
In the Report and Recommendation, the Magistrate Judge recommended that
the Court affirm the findings of the Commissioner, deny Plaintiff’s motion for
summary judgment, and grant Defendant’s motion for summary judgment. (Report
and Recommendation at 2.) In reaching these conclusions, the Magistrate Judge
addressed several discrete issues relevant to the Objections now before this Court.
First, the Magistrate Judge rejected Plaintiff’s argument that the ALJ erred
by not ordering a consultative psychological evaluation of Plaintiff. In this regard,
the Magistrate Judge noted that ALJs have an independent obligation to build the
medical record only when special circumstances (such as a claimant’s pro se
status) create a heightened duty to develop the record, and that there is, at any rate,
no such obligation when the record contains a considerable amount of medical
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evidence concerning the claimant’s alleged ailments and resulting functional
capacity. Finding in the record no special circumstances (but ample evidence of
Plaintiff’s ailments and capacity), the Magistrate Judge concluded that the ALJ
was not required to order a consultative examination. (See Report and
Recommendation at 13-15.)
Second, the Magistrate Judge concluded that notwithstanding the absence of
an RFC assessment by a treating doctor in the record, the RFC developed by the
ALJ was supported by substantial evidence because it contained such an
assessment by a non-examining consultant. The Magistrate Judge further noted that
regardless, Plaintiff had not cited any record evidence that would allow him to
meet his burden of demonstrating that the RFC was insufficiently restrictive. (See
Report and Recommendation at 15-16.)
Third, the Magistrate Judge found that the ALJ’s decision comported with
the “narrative discussion requirements” set forth in a 1996 Social Security Ruling.
See Titles II & Xvi: Assessing Residual Functional Capacity in Initial Claims, SSR
96-8P (S.S.A. July 2, 1996). This was so, the Magistrate Judge determined,
because the ALJ did all that was required of him under that Ruling and subsequent
case law: he discussed the relevant evidence, concluded based on that evidence that
Plaintiff was not precluded by his disability from performing a limited range of
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light work, and did not fail to resolve any apparent inconsistencies in the record.
(See Report and Recommendation at 16-17.)
Finally, the Magistrate Judge concluded, the ALJ’s RFC determination that
Plaintiff retains the capacity to perform simple, unskilled work despite his mental
health issues was supported by substantial evidence, because Plaintiff had failed to
offer either an explanation as to why a more restrictive RFC was required, or any
suggestion as to what further restrictions it should contain. (See Report and
Recommendation at 17-18.)
Defendant raises three objections to the Magistrate Judge’s findings. For the
reasons stated below, the Court will reject Defendant’s objections and adopt the
Magistrate Judge’s Report and Recommendation.
STANDARDS OF REVIEW
Pursuant to Federal Rule of Civil Procedure 72(b) and 28 U.S.C. §
636(b)(1), the Court conducts a de novo review of the portions of the Magistrate
Judge’s Report and Recommendation to which a party has filed “specific written
objections” in a timely manner. Lyons v. Comm’r Soc. Sec., 351 F. Supp. 2d 659,
661 (E.D. Mich. 2004). A district court “may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate judge.” Id. Only
those objections that are specific are entitled to a de novo review under the statute.
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Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). “The parties have the duty to
pinpoint those portions of the magistrate's report that the district court must
specially consider.” Id. (internal quotation marks omitted). “A general objection, or
one that merely restates the arguments previously presented is not sufficient to
alert the court to alleged errors on the part of the magistrate judge.” Aldrich v.
Bock, 327 F. Supp. 2d 743, 747 (E.D. Mich. 2004). Likewise, an objection that
does nothing more than disagree with a magistrate judge's determination “without
explaining the source of the error” is not a valid objection. Howard v. Sec'y of
Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).
In reviewing the findings of the ALJ, the Court is limited to determining
whether those findings are supported by substantial evidence and made pursuant to
proper legal standards. See Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th
Cir. 2007) (citing 42 U.S.C. § 405(h)); see also Cutlip v. Sec’t of Health and
Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). Substantial evidence is “‘such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Kyle v. Comm’r of Soc. Sec., 609 F.3d 847, 854 (6th Cir. 2010)
(quoting Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601, 604 (6th Cir. 2009)); see
also McGlothin v. Comm’r of Soc. Sec., 299 F. App’x 516, 522 (6th Cir. 2008)
(recognizing that substantial evidence is “more than a scintilla of evidence but less
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than a preponderance”) (internal quotation marks omitted). “If the Commissioner’s
decision is supported by substantial evidence, [the court] must defer to that
decision, ‘even if there is substantial evidence in the record that would have
supported an opposite conclusion.’” Colvin v. Barnhart, 475 F.3d 727, 730 (6th
Cir. 2007) (quoting Longworth v. Comm’r of Soc. Sec. Admin., 402 F.3d 591, 595
(6th Cir. 2005)).
As to whether proper legal criteria were followed, a decision of the Social
Security Administration (“SSA”) that is supported by substantial evidence will not
be upheld “where the SSA fails to follow its own regulations and where that error
prejudices a claimant on the merits or deprives the claimant of a substantial right.”
Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007) (citing Wilson v.
Comm’r of Soc. Sec., 378 F.3d 541, 546-47 (6th Cir. 2004)).
This Court does not “try the case de novo, nor resolve conflicts in the
evidence, nor decide questions of credibility.” Cutlip, 25 F.3d at 286. “It is of
course for the ALJ, and not the reviewing court, to evaluate the credibility of
witnesses, including that of the claimant.” Rogers, 486 F.3d at 247; see also Cruse
v. Comm’r of Soc. Sec., 502 F.3d 532, 542 (6th Cir. 2007) (noting that the “ALJ’s
credibility determinations about the claimant are to be given great weight,
‘particularly since the ALJ is charged with observing the claimant’s demeanor and
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credibility’”) (quoting Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir.
1997)).
ANALYSIS
Objection 1: The Magistrate Judge erred in upholding the ALJ’s
decision not to order a consultative psychological examination.
Plaintiff first takes issue with the ALJ’s failure to order a consultative
psychological examination, and argues that the Magistrate Judge should have
found that omission to be error. Acknowledging that while an ALJ’s duty to
develop the record is heightened when the claimant is unrepresented (as Plaintiff
here was not), Plaintiff nonetheless contends that the ALJ “did not fulfill his basic
obligation to develop the record, which is required regardless of whether or not a
Plaintiff is represented.” (Pl.’s Objs. at 3.)
Administrative law judges in this context do have a duty to fully develop the
record. See Lashley v. Sec'y of Health & Human Servs., 708 F.2d 1048, 1051 (6th
Cir. 1983) (citing Richardson v. Perales, 402 U.S. 389 (1971)). And Plaintiff is
correct to point out that “[t]his duty exists even when the claimant is represented
by counsel.” (Pl.’s Objs. at 4 (citing Baca v. Dep't of Health & Human Servs., 5
F.3d 476, 480 (10th Cir. 1993)).) Plaintiff has not, however, cited legal authority
establishing or even suggesting that that duty on the ALJ’s part in this case

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encompassed an obligation to order a consultative psychological exam.
The Magistrate Judge determined that there was a “considerable amount of
medical evidence in the record concerning plaintiff’s alleged ailments and his
resulting functional capability” and that consequently, the ALJ did not have an
additional obligation to order a consultative examination. (Report and
Recommendation at 14 (citing Robertson v. Comm'r of Soc. Sec., 513 F. App'x
439, 441 (6th Cir. 2013)).) This evidence included a psychiatric evaluation and
treatment notes from Plaintiff’s mental health provider, which were then reviewed
by a state agency physician. (Report and Recommendation at 15.) That physician’s
assessment, in turn, was given “great weight” by the ALJ. (Tr. at 28.) Plaintiff also
testified before the ALJ regarding his psychological conditions. (Tr. at 45-50.)
The applicable regulations provide that the Social Security Administration
will “purchase a consultative examination to try to resolve an inconsistency in the
evidence, or when the evidence as a whole is insufficient to allow [the ALJ] to
make a determination or decision on [the] claim.” 20 C.F.R. § 404.1519a. Plaintiff
does not indicate that there were any inconsistencies in the record as contemplated
by this regulatory provision. Furthermore, Plaintiff does not provide the Court with
any reason to conclude that the evidence in the record was not a sufficient basis for
any of ALJ’s findings, nor does he specifically challenge the Magistrate Judge’s
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determination that it was. Accordingly, the Court rejects Plaintiff’s first objection.
Objection 2: The Magistrate Judge erred in finding that the ALJ
adequately considered Plaintiff’s mental health issues.
Plaintiff’s second objection is largely a verbatim reiteration of the argument
that he presented to the Magistrate Judge in his summary judgment motion. Insofar
as it is, it is not a valid objection. See Aldrich, 327 F. Supp. 2d at 747 (“A general
objection, or one that merely restates the arguments previously presented is not
sufficient to alert the court to alleged errors on the part of the magistrate judge.”).
To the extent that it is specifically addressed to any aspects of the Magistrate
Judge’s determination, Plaintiff’s second objection is that the Magistrate Judge
erroneously found that Plaintiff offered in his summary judgment motion “no
explanation as to how the RFC is inadequately restrictive, nor . . . suggested
restrictions necessary to make it acceptable." (Pl.’s Objs. at 6 (quoting Report and
Recommendation at 18).) Noting that “it is not [Plaintiff’s] job to propose [an]
RFC” (Pl.’s Obj. at 6), Plaintiff highlights symptoms of his mental health condition
that he claims were not specifically addressed in the ALJ’s decision.
The Court rejects this objection—again, to the extent that it contains
arguments beyond those that were already presented to the Magistrate Judge—on
two grounds. First, several of the symptoms that Plaintiff claims were overlooked

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by the ALJ were expressly mentioned in the ALJ’s decision: specifically,
Plaintiff’s memory impairment, his concentration problems, and his difficulties
with social functioning. (Tr. at 25.) Second, and more importantly, Plaintiff has not
made any specific challenge to the substance of the state agency physician’s
opinion that was relied upon by the ALJ, nor to the ALJ’s reliance on that opinion.
It follows from this that Plaintiff has not provided a basis on which this Court
could conclude that the ALJ’s determination was not justified by substantial
evidence, defined as “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Colvin, 475 F.3d at 730.
In this regard, Plaintiff has failed to show that the ALJ’s decision was not
supported by substantial evidence, and so the Court rejects his second objection.
Objection 3: The Magistrate Judge erred in finding that the ALJ’s
decision was supported by substantial evidence.
Plaintiff’s third objection, the essence of which is that the ALJ’s decision
was unsupported by substantial evidence generally, also amounts to little more
than a mostly verbatim restatement of the arguments presented to the Magistrate
Judge in Plaintiff’s summary judgment motion. This is underscored by the fact that
after summarizing record evidence that he contends runs contrary to the ALJ’s
decision, Plaintiff states that “[i]f the ALJ and Magistrate [Judge] had not made the

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above outlined legal errors and/or all of the legal errors outlined in Plaintiff's
Motion for Summary Judgment, the Plaintiff would have been found to be
disabled.” (Pl.’s Objs. at 10.) Plaintiff is only entitled to de novo review by this
Court based on the arguments that he did not already present to the Magistrate
Judge, and for the reasons discussed above, these arguments do not justify remand.
At any rate, Plaintiff does not specify how precisely the ALJ or the
Magistrate Judge misconstrued any evidence. At most, his citations to record
evidence that arguably conflicts with the ALJ’s determination amounts to a
summary of evidence that the ALJ might have used to arrive at a different
outcome. But a decision by an administrative law judge that is supported by
substantial evidence is entitled to deference “’even if there is substantial evidence
in the record that would have supported an opposite conclusion.’” Id. (quoting
Longworth, 402 F.3d at 595).
Because the Magistrate Judge correctly found that the ALJ’s determination
was supported by substantial evidence, the Court rejects Plaintiff’s third objection.
CONCLUSION
For all of the reasons stated above, the Court hereby:
- REJECTS Plaintiff’s Objections (ECF No. 16);

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- ADOPTS the Report and Recommendation of Magistrate Judge Stephanie
Dawkins Davis (ECF No. 15) as this Court’s findings and conclusions of law;
- DENIES Plaintiff’s Motion for Summary Judgment (ECF No. 11);
- GRANTS Defendant’s Motion for Summary Judgment (ECF No. 12); and
- AFFIRMS the decision of the Commissioner.
IT IS SO ORDERED.

s/Paul D. Borman
Paul D. Borman
United States District Judge
Dated: July 13, 2017

CERTIFICATE 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 July 13, 2017.
s/D. Tofil
Deborah Tofil, Case Manager

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