LATHAM v. Social Security

Filing 18

OPINION AND ORDER Adopting 15 Report and Recommendation Denying 11 Motion for Summary Judgment filed by WILLIAM T. LATHAM, Jr. Granting 14 Motion for Summary Judgment filed by Commissioner of Social Security - Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WILLIAM T. LATHAM, JR.,
Plaintiff,

Case No. 16-cv-10690

v.

Paul D. Borman
United States District Judge

COMMISSIONER OF
SOCIAL SECURITY,

David R. Grand
United States Magistrate Judge

Defendant.
________________________/
OPINION AND ORDER
(1) ADOPTING MAGISTRATE JUDGE DAVID R. GRAND’S DECEMBER 27,
2016 REPORT AND RECOMMENDATION (ECF NO. 15),
(2) OVERRULING PLAINTIFF’S OBJECTIONS (ECF NO. 16),
(3) DENYING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT (ECF NO. 11),
(4) GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT (ECF NO. 14), AND
(5) AFFIRMING THE FINDINGS OF THE COMMISSIONER
On December 27, 2016, Magistrate Judge David R. Grand issued a Report and
Recommendation to affirm the Commissioner’s decision to deny Plaintiff’s claim for
disability insurance and supplemental security income benefits. (ECF No. 15, Report
and Recommendation.) Plaintiff filed Objections to the Report and Recommendation
(ECF No. 16) and Defendant filed a Response to Plaintiff’s Objections (ECF No. 17).
Having conducted a de novo review, pursuant to 28 U.S.C. § 636(b)(1), of those parts
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of the Magistrate Judge’s Report and Recommendation to which specific objections
have been filed, the Court OVERRULES Plaintiff’s Objections, ADOPTS the
Magistrate Judge’s Report and Recommendation, GRANTS Defendant’s Motion for
Summary Judgment (ECF No. 14), DENIES Plaintiff’s Motion for Summary
Judgment (ECF No. 11), and AFFIRMS the findings of the Commissioner.
I.

BACKGROUND
The Magistrate Judge adequately set for the procedural and factual background

of this matter in his Report and Recommendation and the Court adopts that summary
here. (Report and Recommendation 2-6.)
II.

STANDARD OF REVIEW
Where a party has objected to portions of a Magistrate Judge’s Report and

Recommendation, the Court conducts a de novo review of those portions. FED. R.
CIV. P. 72(b); Lyons v. Comm’r of Soc. Sec., 351 F. Supp. 2d 659, 661 (E.D. Mich.
2004). Only those objections that are specific are entitled to a de novo review under
the statute. 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 and citation omitted). A nonspecific objection, or one that merely reiterates arguments previously presented, does
not adequately identify alleged errors on the part of the magistrate judge and results
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in a duplication of effort on the part of the district court: “A general objection to the
entirety of the magistrate's report has the same effects as would a failure to object. The
district court's attention is not focused on any specific issues for review, thereby
making the initial reference to the magistrate useless.” Howard v. Sec'y of Health and
Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Specific objections enable the
Court to focus on the particular issues in contention. An “objection” that does nothing
more than disagree with a magistrate judge’s determination, “without explaining the
source of the error,” is not considered a valid objection. Id. Without specific
objections, “[t]he functions of the district court are effectively duplicated as both the
magistrate and the district court perform identical tasks. This duplication of time and
effort wastes judicial resources rather than saving them, and runs contrary to the
purposes of the Magistrates Act.” Id.
III.

ANALYSIS
Objection No. 1: Plaintiff objects to the Magistrate Judge’s finding
that the Administrative Law Judge’s (“ALJ”) residual functional
capacity (“RFC”) was not internally inconsistent.
As Magistrate Judge Grand states in his Report and Recommendation, the ALJ

found that Plaintiff has the RFC to perform a reduced range of light work, with the
limitation (among others) that he needs a cane while ambulating. (Report at 14, PgID
385.) Light work is defined as work involving “lifting no more than 20 pounds at a
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time with frequent lifting or carrying of objects weighing up to 10 pounds.” (Id.)
Plaintiff argues that the restriction of a cane for ambulation is internally inconsistent
with an RFC for light work because it would require Plaintiff to be able to carry up
to 20 pounds. (Objs. at 1-2, PgID 392-93.) The Court disagrees with Plaintiff.
The Magistrate Judge correctly found that nothing in the ALJ’s RFC requires
that Plaintiff be able to carry 20 pounds. The RFC for light work unambiguously
requires only that Plaintiff be able to lift 20 pounds and distinguishes this lifting
requirement in the next clause of the definition which specifies that Plaintiff must lift
and carry up to 10 pounds. Plaintiff insists that the requirement of light work requires
“the ability to lift and carry weights up to 20 pounds,” but this interpretation is
patently wrong. The Magistrate Judge correctly concluded that an RFC that requires
ambulation with a cane and the ability to lift and carry up to 10 pounds was not
internally inconsistent because it does not require Plaintiff to carry up 20 pounds. The
ALJ specifically included the use of a cane for ambulation in his hypothetical to the
vocational expert (“VE”) and did not include a limitation of carrying up to 20 pounds.
The VE found that with those combined limitations, there were a significant number
of jobs in the national economy that Plaintiff could perform.
Plaintiff relies on Love v. Comm’r of Soc. Sec., 605 F. Supp. 2d 893 (W.D.
Mich. 2009), but that case discusses the “illogic” of the conclusion that a plaintiff
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would need an assistive device to ambulate but could “carry 20 pounds.” 605 F. Supp.
2d at 907. Notably, the court in Love did not similarly comment on the logic of the
limitation, also included in the hypothetical to the VE in that case, of lifting and
carrying up to 10 pounds frequently.

Love says nothing about the logic of the

limitation of the use of a cane to ambulate and a limitation of carrying up to 10
pounds. Because substantial evidence supported the ALJ’s finding that Plaintiff did
not need a cane for balance but only to ambulate, the RFC for light work, which
requires Plaintiff to carry no more than 10 pounds and does not require Plaintiff to
carry up to 20 pounds, is not internally inconsistent with the restriction of a cane for
ambulation and is supported by substantial evidence.
Objection No. 2: Plaintiff objects to the Magistrate Judge’s finding
that the ALJ’s credibility determination as to the Plaintiff was
supported by substantial evidence.
Plaintiff objects to the Magistrate Judge’s conclusion that the ALJ’s finding that
Plaintiff was less than credible was supported by substantial evidence. An ALJ’s
credibility determination may not be disturbed by a court “absent compelling
reasons.” Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001). The Sixth Circuit has
stated that an “ALJ’s credibility findings are unchallengeable,” and entitled to
deference due to “the ALJ’s unique opportunity to observe the claimant and judge
[his] subjective complaints.” Payne v. Comm’r of Soc. Sec., 402 F. App’x 109, 113
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(6th Cir. 2010). Plaintiff’s Objections demonstrate no compelling reason why this
Court should disturb the ALJ’s finding that Plaintiff was less than fully credible,
which the Magistrate Judge correctly concluded was supported by the following
substantial evidence:
(1) Plaintiff’s reporting of symptoms was not credible in light of the moderate
treatment Plaintiff received in the emergency room following the accident and the
effectiveness of a conservative course of treatment thereafter. Although Plaintiff states
that his symptoms worsened in the days following the accident, Plaintiff then sought
and received routine and conservative treatment that appeared to improve Plaintiff’s
symptoms. It was appropriate for the ALJ to consider Plaintiff’s improvement with
a conservative treatment protocol as bearing on the credibility of his claimed
symptoms. Leach v. Colvin, No. 13-cv-13571, 2015 WL 540701, at *10 (E.D. Mich.
Feb. 10, 2015) (finding ALJ’s credibility determination amply supported by the
record, including ALJ’s consideration of evidence of the conservative nature of
plaintiff’s treatment plan, which undermined the claimed severity of symptoms)
(2) Plaintiff failed to follow up with his treating physician’s recommendation
that he be seen by a neurologist, failed to act on his physician’s referral to a pain clinic
and declined another treating physician’s suggestion that he consider injection
therapy. A claimant’s failure to comply with prescribed or recommended treatment
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is a factor tending to discount the credibility of his allegations of disability. Leach,
2015 WL 540701, at *10 (finding ALJ’s credibility determination amply supported
by the record, including ALJ’s consideration of evidence of plaintiff’s failure to
comply with treatment recommendations, which undermined claimed severity of
symptoms); Rodgers v. Comm’r of Soc. Sec., No. 13-cv-13746, 2014 WL 6612368,
at *3 (E.D. Mich. Nov. 20, 2014) (finding that the failure to follow through with
treatment recommendations undermined a claimant’s credibility). The Court will not
disturb the ALJ’s credibility finding on this issue, which is supported by substantial
evidence.
Plaintiff does not deny that he declined to pursue these treatment options.
Rather, Plaintiff suggests in his Objections that perhaps he had good reasons for
rejecting each of these treatment recommendations, see Pl.’s Objs. at 5 (“Was it fear,
was it lack of medical insurance?”), and notes that the Social Security Regulations list
certain justifiable causes, such as intense fear of surgery, for failing to follow a
recommended treatment protocol. Yet Plaintiff does not claim that he harbors such
fears and certainly directs the Court to no record evidence that would support a claim
that Plaintiff had “justifiable reasons” for refusing to follow recommended treatment
or to act upon recommended referrals. Moreover, the referrals for a pain consultation
and for injection therapy were not for surgery consultations. The Court will not
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disturb the ALJ’s credibility finding on this issue, which is supported by substantial
evidence.
III.

CONCLUSION
For the foregoing reasons, the Court:
1) ADOPTS the Magistrate Judge’s December 27, 2016 Report and

Recommendation (ECF No. 15);
2) OVERRULES Plaintiff’s Objections (ECF No. 16);
3) DENIES Plaintiff’s Motion for Summary Judgment (ECF No. 11);
4) GRANTS Defendant’s Motion for Summary Judgment (ECF No. 14);
5) AFFIRMS the findings of the Commissioner.
IT IS SO ORDERED.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: March 30, 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
March 30, 2017.

s/Deborah Tofil
Case Manager
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