Foley v. Commissioner of Social Security

Filing 21

ORDER denying 14 Motion for Summary Judgment; granting 15 Motion for Summary Judgment; adopting 18 Report and Recommendation. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN FOLEY,
Case No. 16-10574
Plaintiff,
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

v.
COMMISSIONER OF SOCIAL SECURITY,

U.S. MAGISTRATE JUDGE
STEPHANIE DAWKINS DAVIS

Defendant.
/

ORDER ADOPTING REPORT AND RECOMMENDATION [18], GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [15], DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT [14], OVERRULING PLAINTIFF’S OBJECTION
[19]
On February 16, 2017, Magistrate Judge Davis issued a Report and
Recommendation (R&R) [18], recommending that Defendant’s Motion for
Summary Judgment [15] be granted and, accordingly, that Plaintiff’s Motion for
Summary Judgment [14] be denied. Plaintiff filed an objection [19] on March 2,
2017, and Defendant filed a response [20] on March 13, 2017. For the reasons
stated below, the R&R [18] is ADOPTED and is entered as the findings and
conclusions of the Court, and Plaintiff’s objection [19] is OVERRULED.
Defendant’s Motion for Summary Judgment [15] is GRANTED and Plaintiff’s
Motion for Summary Judgment [14] is DENIED.

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STATEMENT OF FACTS
Plaintiff filed a claim seeking disability benefits on December 10, 2013,
alleging that he became disabled and unable to work, commencing September 1,
2012. His claims were denied, initially on April 2, 2014. Plaintiff subsequently had
an administrative hearing on December 10, 2014, and a decision was issued on
January 27, 2015, determining that Plaintiff was not disabled within the meaning
of the Social Security Act.
The Magistrate Judge summarized the administrative record of Plaintiff’s
disability application as follows:
Plaintiff was 50 years old on the alleged disability date. (Dkt. 12-2, Pg ID
61). Plaintiff, a resident of Detroit, Michigan, has a high school education
and past relevant work as a material handler, forklift driver and production
machine tender, which are classified as medium or heavy and skilled. Id.
Plaintiff testified that he could not work because of fatigue, limited lifting
and walking ability, leftsided weakness, and difficulty with his memory and
completing tasks. (Dkt. 12-2, Pg ID 59, 83-84).
The ALJ applied the five-step disability analysis to plaintiff’s claims and
found at step one that plaintiff did not engage in any substantial gainful
activity since the application date. Id. at 56. At step two, the ALJ found that
plaintiff had the following severe impairments: status-post cerebrovascular
accident, status-post myocardial infarction, hypertension, and adjustment
disorder. Id. At step three, the ALJ found that plaintiff did not have an
impairment or combination of impairments that met or equaled one of the
listings in the regulations. Id. at 57. The ALJ determined the following as to
plaintiff’s residual functional capacity (RFC):
After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform light
work as defined in 20 CFR 404.1567(b) and 416.967(b) except: the
claimant could occasionally kneel, crouch, crawl, climb ramps, stairs,
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ladders, ropes, and scaffolds. He could frequently balance and stoop.
He should avoid hazardous machinery and heights. He would be
limited to simple routine tasks.
Id. at 58. At step four, the ALJ determined that plaintiff could not perform
his past relevant work. Id. at 61. At step five, the ALJ concluded that based
on plaintiff’s age, education, work experience and RFC, there were jobs that
existed in significant numbers in the national economy that plaintiff could
have performed and, therefore, he was not under a disability from the date of
the application through the date of the decision. Id. at 61-62.
[18 at 2-4].
STANDARD OF REVIEW
This Court reviews objections to an R&R on a dispositive motion de novo.
See 28 U.S.C. § 636(b)(1)(c). Judicial review of a decision by an Administrative
Law Judge (“ALJ”) is limited to determining whether the factual findings are
supported by substantial evidence and whether the ALJ employed the proper legal
standards. Richardson v. Perales, 402 U.S. 389, 401 (1971). The ALJ’s factual
findings “are conclusive if supported by substantial evidence.” Maziarz v. Sec’y of
Health & Human Servs., 837 F.2d 240, 243 (6th Cir. 1987). “Substantial evidence
is defined as 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.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
The substantial evidence standard “does not permit a selective reading of the
record,” as the reviewing court’s assessment of the evidence supporting the ALJ’s

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findings “must take into account whatever in the record fairly detracts from its
weight.” Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984).
ANALYSIS
Plaintiff raises only one objection to the R&R. He argues that the Magistrate
Judge erred by finding that there was substantial evidence to support the ALJ’s
RFC of “light” work, considering Plaintiff’s condition and abilities, and
disregarding the opinion of a treating physician on the length of his disability.
Plaintiff specifically points to his left-side weakness, spasms, and walking
difficulties resulting from this impairment as evidence that he cannot do light
work.
Plaintiff’s objection points to evidence in the record to support his claim that
he cannot perform light work. However, he does not address the evidence in the
R&R that substantially supports the ALJ’s decision. As the Magistrate
acknowledged, there may be evidence to contrary as to whether Plaintiff can do
light work, but Plaintiff has not established that the ALJ’s RFC is unsupported by
substantial evidence.
Plaintiff cites to medical evidence from the onset of the left-side weakness
on September 8, 2012 [12-7 at 284] through an examination on August 25, 2014
[12-7 at 439] as evidence that the left-side weakness is a continued problem that
seriously affects his ability to stand or walk. However, this evidence does not

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negate the ALJ’s determination. As Plaintiff admits, his weakness has improved
over time. While he argues that this does not mean that his existing weakness is not
chronic, or serious enough to prevent him from performing light work, the
evidence does not support this assertion. The medical evidence shows his
weakness improving, and the statements from Plaintiff’s physicians do not indicate
that the condition is serious enough to overcome the ALJ’s finding that Plaintiff
could perform light work. Specifically, on August 25, 2014, a few months before
the hearing, Plaintiff’s physician Dr. Angela Bully, stated that, during the
examination, she observed rigidity with ROM of the left upper and lower
extremities and “motor on the left decreased compared to right which is
unchanged.” [12-7 at 439].
This evidence does not negate the facts that the ALJ found supported a
finding that Plaintiff could perform light work. First, the ALJ relied on the
opinions of consultative examiners Dr. Bina Shaw and Dr. Sonia Ramirez-Jacobs
to determine Plaintiff’s physical RFC. When assessed by Dr. Shaw on March 17,
2014, Plaintiff was found to be able to “engage in simple, low cognitive repetitious
activities for eight hours a day,” “sit, stand and walk for eight hours a day,” and
“bend partially and lift at least 20 pounds without difficulty.” [12-7 at 359]. On
April 1, 2014, Plaintiff saw Dr. Ramirez-Jacbos found that there was “[n]o
significant physical findings, normal gait, full range of motion of extremities.” [12-

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3 at 79]. The medical evidence of undisputed improvement in left-side weakness,
as well as the consulting examinations, all substantially supported the ALJ’s RFC.
None of the evidence cited by Plaintiff has any indication that Plaintiff is unable to
perform light work as described by the ALJ.
The Court agrees with the Magistrate Judge that, while there may be
evidence to support Plaintiff’s assertion that his left-side weakness was chronic, he
has failed to show any evidence to justify a finding that the ALJ’s RFC is
unsupported by substantial evidence. As the Sixth Circuit has held, “the
Commissioner's decision cannot be overturned if substantial evidence, or even a
preponderance of the evidence, supports the claimant's position, so long as
substantial evidence also supports the conclusion reached by the ALJ.” Jones v.
Comm'r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003).
Plaintiff challenges the R&R, arguing that it erred by asserting that Dr.
Rahbar failed to indicate the length of time for which Plaintiff would be unable to
perform his job functions. [19 at 6]. Dr. Rahbar’s report from September 18, 2012
stated that the left-side weakness commenced on September 7, 2012, and described
the condition as “probably chronic” and placed the end date of Plaintiff’s
incapacity as “unknown” [12-7 at 289-290]. Plaintiff argues that this means his
left-side weakness was chronic, thus providing substantial evidence that Plaintiff
cannot perform light work.

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First, Defendant is correct that this is a new line of argument that was not
presented by the Plaintiff in the Motion for Summary Judgment [14] and was not
before the Magistrate. Any issues raised for the first time in an objection to a
Magistrate’s R&R are deemed waived. Murr v. United States, 200 F.3d 895, 902,
n. 1 (6th Cir. 2000). However, this argument also fails on its merits. Notably, the
opinion of Dr. Rahbar does not state that the severity of Plaintiff’s condition will
continue to remain at the same level and leave him unable to work. In fact, the
evidence is undisputed that the condition was, and in fact, had improved. [14 at 8].
Just stating that the condition has no known end date does not indicate that it did
last for a duration of 12 months with that same severity, particularly in the face of
the evidence considered by the ALJ, provided two years later at the consultative
examinations of Drs. Shaw and Ramirez-Jacobs. See [12-7 at 359; 12-3 at 79]. Dr.
Rahbar’s opinion was considered by the ALJ, and based on the above analysis, the
Court determines that the ALJ’s decision was supported by substantial evidence.
CONCLUSION
The Court having reviewed the record in this case, the R&R [18] of the
Magistrate Judge is hereby ADOPTED and is entered as the findings and
conclusions of the Court. Accordingly,
IT IS ORDERED that Defendant’s Motion for Summary Judgment [15] is
GRANTED.

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IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary
Judgment or Remand [14] is DENIED.
IT IS ORDERED that Plaintiff’s Objection [19] is OVERRULED.
This case is CLOSED.
SO ORDERED.

Dated: March 27, 2017

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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