Quisenberry v. Colvin

Filing 32

ORDER Adopting Report and Recommendation for 25 Motion for Summary Judgment filed by Carolyn W Colvin, 20 Motion for Summary Judgment filed by Kimberly Quisenberry, 27 Report and Recommendation, Signed by District Judge Marianne O. Battani. (KDoa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KIMBERLY QUISENBERRY,
Plaintiff,
v.

CASE NO. 2:16-cv-11156

COMMISSIONER OF
SOCIAL SECURITY,

HON. MARIANNE O. BATTANI

Defendant.
_________________________________/
OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION

Before the Court is Plaintiff Kimberly Quisenberry’s objections (Doc. 29) to the
Magistrate Judge’s Report and Recommendation (“R&R”) (Doc. 27). Quisenberry filed
an action seeking judicial review of a final decision of the Defendant Commissioner of
the Social Security Administration (“Commissioner”) under 42 U.S.C. § 405(g). Each
side filed a motion for summary judgment (Doc. 20; Doc. 25).
The matter was referred to Magistrate Judge Anthony Patti, who found that
substantial evidence supported the Administrative Law Judge’s (“ALJ”) and the
Commissioner’s decision to deny benefits. (Doc. 27). For the reasons stated below,
the Court ADOPTS the Magistrate Judge’s R&R; GRANTS Defendant’s motion for
summary judgment and DENIES Plaintiff’s motion for summary judgment.
I.

BACKGROUND
Quisenberry filed the present action pursuant to 42 U.S.C. § 405(g), challenging

the final decision of the Commissioner, who, after an initial hearing and two subsequent
hearings upon remand, denied her applications for Disability Insurance Benefits (“DIB”)
and Supplemental Security Income (“SSI”) under the Social Security Act. Quisenberry

asserts that the Commissioner’s decision is not based upon substantial evidence. (Doc.
20).
The matter was referred to Magistrate Judge Patti for determination of all nondispositive motions pursuant to 28 U.S.C. § 636(b)(1)(A) and issuance of a Report and
Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and (C).

Each side filed a

motion for summary judgment (Doc. 20; Doc. 25). Magistrate Judge Patti found that the
Commissioner applied the correct legal standards and made findings of fact that were
supported by substantial evidence in the record, and recommended that the
Commissioner’s motion for summary judgment be granted, that Quisenberry’s motion
for summary judgment be denied, and that the ALJ’s decision be affirmed. (Doc. 27).
II.

STANDARD OF REVIEW
A district court must conduct a de novo review of the parts of a Magistrate

Judge’s R&R 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.” 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 judge. Flournoy v. Marshall, 842 F.2d 875, 878 (6th Cir.1987).
The Court must affirm the Commissioner’s conclusions so long as the
Commissioner applied the correct legal standards and made findings of fact that are
supported by substantial evidence in the record. Walters v. Comm’r of Soc. Sec., 127

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F.3d 525, 528 (6th Cir. 1997). Substantial evidence is evidence that a reasonable mind
might accept as adequate evidence in support a conclusion. Id.

This means that

administrative findings
are not subject to reversal merely because substantial evidence exists in
the record to support a different conclusion. The substantial evidence
standard presupposes that there is a ‘zone of choice’ within which the
[Commissioner] may proceed without interference from the courts. If the
[administrative] decision is supported by substantial evidence, a reviewing
court must affirm.
Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994) (citations omitted). The Sixth
Circuit

has

further

explained,

“[i]f

supported

by

substantial

evidence,

the

Commissioner's decision must be affirmed, even if the reviewing court would decide the
case differently and even if the claimant’s position is also supported by substantial
evidence. Linscomb v. Comm’r of Soc. Sec., 25 Fed.Appx. 264, 266 (6th Cir. 2001)
(citations omitted).
III.

ANALYSIS
Quisenberry raises three objections to the R&R. First, Quisenberry contends that

the Magistrate Judge erred in agreeing with the ALJ’s weighing the opinions of the
various medical professionals who examined Plaintiff. Second, Quisenberry asserts
that the Magistrate Judge erred in finding that the ALJ’s RFC assessment was
supported by substantial evidence.

Finally, Quisenberry submits that the Magistrate

Judge erred by determining that the ALJ’s hypothetical to the Vocational Expert was
supported by substantial evidence.

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A.

Medical Testimony

With respect to the first objection, Plaintiff contends that the Magistrate Judge erred
in concurring with the ALJ’s determination to reject (or give only partial weight to) the
opinions of six different doctors, Paul Haduck, D.O., Pamela Herringshaw, Ph.D., Ron
Marshall, Ph.D., Aaron Anderson, D.O., Dawn Gventer, Psy.D., and Elaine Tripi, Ph.D.
Because Plaintiff raises separate, though similar, objections regarding each doctor, the
Court will discuss the objections separately below.
Dr. Herringshaw. Plaintiff contends that the ALJ erred in giving “little weight” to the
opinion of Dr. Herringshaw, including Dr. Herringshaw’s conclusion that Plaintiff’s
“overall functioning seems marginal.” The ALJ considered Dr. Herringshaw’s opinion
(R. 689, 694-95), and ultimately found it to be inconsistent with the record as a whole,
“including the claimant’s history of mental health treatment, the mental status
examination findings of the claimant’s treating and examining providers, and the
claimant’s reported activities of daily living.” (R. at 695-96).

Inconsistency with the

record as a whole is a sufficient reason for rejecting the opinion of a treating physician.
Price v. Comm’r of Soc. Sec., 342 F. App’x 172, 176 (6th Cir. 2009) (concluding that the
ALJ properly rejected a treating physician opinion that was not supported by objective
medical evidence). In reaching this conclusion, the ALJ relied on testimony that Plaintiff
“[c]ooks a little . . . does do laundry . . . [and] does shop for groceries.” (R. 718-719).
While Plaintiff cites different testimony regarding her daily activities, administrative
findings are not subject to reversal merely because substantial evidence exists in the
record to support a different conclusion. Felisky, 35 F.3d at 1035.

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Dr. Marshall. Plaintiff asserts that the ALJ gives insufficient weight to Dr. Marshall’s
opinion, especially Dr. Marshall’s determination that Plaintiff had several “moderately
limited” abilities. The Court finds that the ALJ’s weighing of Dr. Marshall’s opinion is
supported by substantial evidence.

In particular, the ALJ properly relied on Dr.

Marshall’s ultimate determination that Plaintiff retained “the ability to do rote tasks within
medical limitations.” (R. 421). Furthermore, notwithstanding Plaintiff’s assertion that
the ALJ disregarded Dr. Marshall’s opinion regarding Plaintiff’s “inability to maintain
attention and concentration for extended periods of time,” the RFC accounted for this
concern, noting that Plaintiff was not capable of performing “jobs involving
concentration.” (R. 685).
Dr. Tripi.

Plaintiff contends that the ALJ erred by concluding that Dr. Tripi’s

conclusions were inconsistent with the record as a whole. In particular, Plaintiff objects
to the ALJ’s treatment of Dr. Tripi’s IQ assessment of Plaintiff. However, while Plaintiff
asserts that the ALJ found the IQ score “invalid,” the ALJ’s analysis was more nuanced,
raising doubt regarding “whether [Plaintiff’s] test scores could be considered a valid
interpretation of her intellectual functioning.” (R. 690). In addition, the ALJ noted that
Dr. Tripi “improperly relied quite heavily on the claimant's subjective report of physical
symptoms and limitations.” In light of this analysis, the ALJ’s determinations regarding
Dr. Tripi are supported by substantial evidence.
Dr. Anderson. Plaintiff asserts that the ALJ erred in giving only “partial weight” to Dr.
Anderson’s opinion, and by accepting without further investigation Dr. Anderson’s
determination that Plaintiff could lift/carry “up to ten pounds frequently (up to 1/3 [of an
8-hour workday]).” With respect to the first point, Plaintiff contests the ALJ’s decision to

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discount Dr. Anderson’s opinion to the extent that it was based upon Plaintiff’s
subjective complaints, which the ALJ had found to be less than credible. (R. 693).
While Plaintiff urges that Dr. Anderson “did not opine that [P]laintiff was not a credible
examinee,” the credibility determination is under the purview of the ALJ. Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). With respect to the second
point, the ALJ had no cause to second-guess Dr. Anderson’s determination that Plaintiff
could “frequently” (as opposed to “occasionally”) lift up to ten pounds. Moreover, the
“frequently” language was not employed in the RFC, nor as part of the ALJ’s
hypothetical to the Vocational Expert. (R. 685, 725).
Dr. Gventer. Plaintiff alleges that the ALJ lacked substantial evidence to give “little
weight” to the opinion of Dr. Gventer, and that the ALJ “cherry picked” the evidence he
chose to use to discount Dr. Gventer’s assessment. Review of the ALJ’s determination
reveals that the ALJ carefully considered Dr. Gventer’s opinion, and ultimately
disregarded (i) the portions of Dr. Gventer’s opinion that were internally inconsistent and
(ii) conclusory, non-medical declarations (i.e., that Plaintiff’s “depressed mood . . . will
prevent work success”). (R. 690-94). The ALJ’s weighing of Dr. Gventer’s opinion is
based on substantial evidence.
Dr. Haduck. Plaintiff contends that the ALJ erred by giving Dr. Haduck’s opinion
“little weight” while declining to “cite to anything in Dr. Haduck’s records, to show that he
had even reviewed them.”

Although Plaintiff contends that the ALJ erred by

insufficiently examining Dr. Haduck’s records, Plaintiff acknowledges that such records
were “somewhat illegible.”

(Doc. 29, p. 18).

Less impressed by Dr. Haduck’s

penmanship, the ALJ found these records to be “largely illegible.” (R. 695). Even in

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light of Plaintiff’s efforts to transcribe Dr. Haduck’s notes (Doc. 29, pp. 18-19) the ALJ
properly observed that Dr. Haduck’s opinion “does not actually describe any specific
functional limitations that would preclude the claimant from engaging in all work activity
in perpetuity.” (R. 695). Statements that a claimant is "disabled" or "unable to work," or
the like, are not medical opinions but are administrative findings dispositive of a case,
requiring familiarity with the Regulations and legal standards set forth therein. Buxton v.
Halter, 246 F.3d 762, 773 (6th Cir. 2001) (the ALJ is “not bound by conclusory
statements of doctor, particularly where they are unsupported by detailed objective
criteria and documentation.”). Accordingly, the ALJ’s weighing of Dr. Haduck’s opinion
was supported by substantial evidence.
B.

“Bridge” between Record and RFC Assessment

Next, Plaintiff contends that the Magistrate Judge erred in determining that the
ALJ’s RFC assessment was supported by substantial evidence. Plaintiff contends that
the ALJ “completely substituted his own opinion for both physical and mental
impairments, not using even one of the various doctors, who either examined, treated
and/or reviewed plaintiff’s medical records.” (Doc. 29, p. 21).
This Court has difficulty apprehending the logic of this objection, especially in
light of the more than ten pages of explanation that follow the ALJ’s RFC, including
citation to the records of Dr. Herringshaw, Dr. Tripi, Dr. Gventer, Dr. Anderson, Dr.
Marshall, Dr. Haduck. (R. 685-96). Accordingly, Plaintiffs assertion that the RFC is not
supported by substantial evidence appears to be based on the contentions addressed
above, i.e., that the ALJ failed to give appropriate weight to the medical testimony. For
the reasons set forth above, the ALJ properly weighed the medical opinions, and

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properly disregarded conclusory assertions that were inconsistent with the record as a
whole.
C.

Hypothetical to Vocational Expert

Finally, Plaintiff alleges that the ALJ’s hypothetical posed to the Vocational Expert
failed to accurately portray Plaintiff’s limitations by omitting the moderate limitations
assessed by Dr. Marshall.

As addressed above, however, the ALJ accurately

discounted the moderate limitations assessed by Dr. Marshall. In addition, because the
hypothetical question posed to the vocational expert (R. 725) closely mirrors the ALJ’s
RFC determination, Plaintiff’s essentially challenges the RFC itself, which as discussed
above, was based upon substantial evidence.
IV. CONCLUSION
For the reasons set forth herein, the Court finds that substantial evidence supports
the Commissioner’s decision to deny benefits. Thus, Plaintiff’s Motion for Summary
Judgment (Doc. 20) is DENIED, Defendant’s Motion for Summary Judgment (Doc. 25)
is GRANTED, and the ALJ’s decision is AFFIRMED.
IT IS SO ORDERED.
/s/ Marianne O. Battani___________
MARIANNE O. BATTANI
UNITED STATES DISTRICT JUDGE
DATE: September 27, 2017
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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