Truran v. Social Security

Filing 28

OPINION and ORDER Adopting 25 Report and Recommendation to Grant Defendant's 23 Motion for Summary Judgment and to Deny Plaintiff's 19 Motion for Summary Judgment. Signed by District Judge Denise Page Hood. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KATHLEEN F. TRURAN,
Plaintiff,

CASE NO. 16-10862
HON. DENISE PAGE HOOD

v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
/

OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [#25] TO GRANT DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [#23] AND TO DENY
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [#19]

I.

BACKGROUND
This matter is before the Court on a Report and Recommendation (Doc # 25)

filed by Magistrate Judge Anthony P. Patti to grant the Motion for Summary
Judgment filed by Defendant Commissioner of Social Security (“Commissioner”)
(Doc # 23) and to deny the Motion for Summary Judgment filed by Plaintiff
Kathleen F. Truran (“Truran”) (Doc # 19). Truran has timely filed two objections
to the Report and Recommendation. (Doc # 26) The Commissioner has filed a
response to the objections. (Doc # 27) Having conducted a de novo review of the
parts of the Magistrate Judge’s Report and Recommendation to which valid
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objections have been filed pursuant to 28 U.S.C. § 636(b)(1), the Court ACCEPTS
and ADOPTS the Report and Recommendation, GRANTS the Commissioner’s
Motion for Summary Judgement, and DENIES Truran’s Motion for Summary
Judgment.
The background facts of this matter are adequately set forth in the
Magistrate Judge’s Report and Recommendation, and the Court adopts them here.
II.

ANALYSIS
A.

Standard of Review

The standard of review by the district court when examining a Report and
Recommendation is set forth in 28 U.S.C. § 636. This Court “shall make a de novo
determination of those portions of the report or the specified proposed findings or
recommendations to which an objection is made.” 28 U.S.C. § 636(b)(1)(C). The
court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” Id. In order to preserve the right
to appeal the magistrate judge’s recommendation, a party must file objections to
the Report and Recommendation within fourteen (14) days of service of the Report
and Recommendation. Fed. R. Civ. P. 72(b)(2). Failure to file specific objections
constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140,
155 (1985); Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 508-09
(6th Cir. 1991); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).
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B.

Truran’s Objections
1.

First Objection

Truran first objects to the Magistrate Judge’s analysis of Truran’s “possible
fibromyalgia” diagnosis, arguing that it adopts the errors made by the
administrative law judge (“ALJ”) and compounds them by imputing analysis to the
ALJ. The Commissioner responds that the Magistrate Judge correctly found that
substantial evidence supported the ALJ’s evaluation of Truran’s “possible
fibromyalgia.” At Step 2, the ALJ concluded that the claimant had several severe
impairments. (Doc # 15-2, Pg ID 85) However, the ALJ found that the diagnosis
of “possible fibromyalgia” was a non-severe impairment. Id. at 86.
The Court agrees with the Magistrate Judge that the ALJ did not consider the
“possible fibromyalgia” diagnosis to be a non-medically determinable impairment.
Rather, the ALJ considered the “possible fibromyalgia” diagnosis to be a medically
determinable but non-severe impairment.

The Court further agrees with the

Magistrate Judge that, even if the alternative criteria for diagnosing fibromyalgia
under Social Security Ruling 12-2p applied to determine whether Truran’s
“possible fibromyalgia” diagnosis was a severe impairment at Step 2, Truran has
not come forward with evidence of the third criterion—that other disorders that
could cause pain, numbness, and fatigue (such as Truran’s diagnosis of chronic
fatigue syndrome) were excluded. The Court also agrees with the Magistrate
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Judge that, to the extent the ALJ made any error at Step 2, any such error was
harmless because the ALJ found that Truran had several severe impairments and
then considered Truran’s allegations of pain and numbness at Step 4. See Doc #
25, Pg ID 712 (citing Pompa v. Comm’r of Soc. Sec., 73 F. App’x 801, 803 (6th
Cir. 2003); Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th
Cir. 1987); Carpenter v. Astrue, 537 F. 3d 1264, 1266 (10th Cir. 2008)). The
Court finds that substantial evidence supported the ALJ’s conclusion at Step 4 that
the objective evidence did not support Truran’s complaints of pain and numbness.
Truran’s first objection is overruled.
2.

Second Objection

In her second objection, Truran claims that the Magistrate Judge erred in
excusing the ALJ’s failure to sufficiently account for the findings of Dr. Kenneth
Visser, a consultative examiner, when assessing the impact of Truran’s mental
impairments on her ability to work. The Commissioner responds that substantial
evidence supported the ALJ’s analysis of Dr. Visser’s consultative exam report.
Dr. Visser conducted a psychological evaluation on May 21, 2012, for the
known purpose of use in the disability process. (Doc # 15-8, Pg ID 486) Dr.
Visser found that Truran had problems with working memory, concentration, and
social interaction.

Id. at 491.

functional limitations.

Dr. Visser’s report did not include specific

Dr. Thomas Conger, the State agency’s mental health
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consultant, listed Dr. Visser’s report as evidence of record. (Doc # 15-3, Pg ID
157-58) Dr. Conger also included Dr. Visser’s mental findings in his findings of
fact and analysis. Id. at 160. The ALJ correctly noted that Dr. Conger opined that
Truran is capable of performing routine tasks on a sustained basis, and that she
shows the ability to relate effectively in general despite some social difficulties.
(Doc # 15-2, Pg ID 91) Dr. Shakra Junejo, the State agency’s medical consultant,
also listed Dr. Visser’s report as evidence of record. (Doc # 15-3, Pg ID 171)
Truran correctly notes that the ALJ did not specifically discuss Dr. Visser’s
mental findings at Step 4.

However, at Step 4, the ALJ did note physical

observations that Dr. Visser made during his evaluation, as well as the fact that Dr.
Visser’s evaluation was for the known purpose of use in the disability process.
(Doc # 15-2, Pg ID 90) The ALJ noted that, according to Dr. Visser’s report,
Truran brought a recorder to Dr. Visser’s evaluation. Id. The ALJ also found that
the absence during a number of visits with treating physicians of some of the
physical symptoms that were present during Dr. Visser’s evaluation undermined
the credibility of Truran’s allegations during Dr. Visser’s evaluation and at the
hearing. Id. The ALJ then went on to consider the alleged mental impairments as
well as Dr. Conger’s report (which incorporated some of Dr. Visser’s mental
findings) and Dr. Junejo’s report. Id. at 91-92. The ALJ concluded at Step 4 that
Truran “is limited to simple, routine, and repetitive work in a low stress job, which
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is defined as having only occasional decision making and occasional changes in
the work setting,” and that Truran “can have only occasional interaction with the
public.” Id. at 88.
In her second objection, Truran argues that Dr. Visser’s assessment of her
Residual Functional Capacity (“RFC”) should have been considered and
addressed.

However, Dr. Visser’s report did not include specific functional

limitations. And notably, Truran fails to explain what additional limitations Dr.
Visser’s report required in the RFC assessment. In the Sixth Circuit, an ALJ’s
failure to even mention a report from a treating physician, which is usually entitled
to greater weight than that of a consultative examiner, can be harmless error. See
Dykes ex rel. Brymer v. Barnhart, 112 F. App’x 463, 467-68 (6th Cir. 2004) (citing
Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535-36 (6th Cir. 2001)).

As

discussed by Magistrate Judge Patti, in Dykes, the Sixth Circuit found that the
ALJ’s failure to thoroughly discuss the opinion of a consultative examiner did not
warrant reversal. In Dykes, the ALJ had not ignored the consultative examiner’s
opinion altogether, and the record included opinions from other doctors performing
RFC assessments that supported the ALJ’s conclusion.

The same reasoning

applies in this case. The ALJ did not ignore Dr. Visser’s opinion altogether; he
referenced it several times, including at Step 4. This record also includes opinions
from other doctors performing RFC assessments, like Dr. Conger’s opinion, that
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support the ALJ’s conclusion. The ALJ appropriately limited Truran to simple,
routine, and repetitive work in a low stress job with only occasional interaction
with the public. The Court concludes that the ALJ’s failure to thoroughly discuss
Dr. Visser’s mental findings at Step 4 was harmless error.

Truran’s second

objection is overruled.
III.

CONCLUSION
For the reasons set forth above,
IT IS ORDERED that Magistrate Judge Anthony P. Patti’s Report and

Recommendation (Doc # 25) is ACCEPTED and ADOPTED as this Court’s
findings of fact and conclusions of law.
IT IS FURTHER ORDERED that Defendant Commissioner of Social
Security’s Motion for Summary Judgment (Doc # 23) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff Kathleen F. Truran’s Motion for
Summary Judgment (Doc # 19) is DENIED.
IT IS FURTHER ORDERED that this action is DISMISSED with prejudice.

Dated: August 23, 2017

s/Denise Page Hood
Chief, U.S. District Court

I hereby certify that a copy of the foregoing document was served upon counsel of
record on August 23, 2017, by electronic and/or ordinary mail.
s/Julie Owens
Acting in the absence of LaShawn R. Saulsberry
Case Manager
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