Trejo v. Social Security

Filing 25

ORDER Accepting Report and Recommendation 20 and Dismissing Action. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALBERTO G. TREJO,
Plaintiff,
v.

Case No. 16-11537
Hon. Denise Page Hood

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
/
ORDER ACCEPTING REPORT AND RECOMMENDATION
AND DISMISSING ACTION
This matter is before the Court on Magistrate Judge David R. Grand’s
Report and Recommendation. [Doc. No. 20]. Timely objections and a response to
the objections were filed in this matter. [Doc. Nos. 23 and 24].
Judicial review of the Commissioner’s decision is limited in scope to
determining whether the Commissioner employed the proper legal criteria in
reaching his conclusion. Garner v. Heckler, 745 F.2d 383 (6th Cir. 1984). The
credibility findings of an administrative law judge (“ALJ”) must not be discarded
lightly and should be accorded great deference. Hardaway v. Secretary of Health
and Human Services, 823 F.2d 922, 928 (6th Cir. 1987). A district court’s review
of an ALJ’s decision is not a de novo review. The district court may not resolve
conflicts in the evidence nor decide questions of credibility. Garner, 745 F.2d at
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397. The decision of the Commissioner must be upheld if it is supported by
substantial evidence, even if the record might support a contrary decision or if the
district court arrives at a different conclusion. Smith v. Secretary of HHS, 893 F.2d
106, 108 (6th Cir. 1984); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986).
The Court has had an opportunity to review this matter and finds that the
Magistrate Judge reached the correct conclusions for the proper reasons. Plaintiff
objects to the Magistrate Judge’s: (a) determination that the Administrative Law
Judge (“ALJ”) properly weighed the treating physician’s opinion; (b) finding that
the ALJ correctly applied Drummond v. Commissioner of Social Security, 126 F.3d
837 (6th Cir. 1997); and (c) decision that the ALJ properly accounted for
Plaintiff’s mental health issues when formulating Plaintiff’s residual functional
capacity.
With respect to the first objection, Plaintiff argues that the ALJ failed to
provide good reasons for affording the opinion of Plaintiff’s treating physician, Dr.
Daniel Duffy little weight. Plaintiff asserts that Dr. Duffy’s statements were not
inconsistent with his restrictions and examination findings, that the ALJ’s findings
were based on her own interpretation of raw medical data, and that Dr. Duffy’s
conservative treatment was not a sufficient reason to discount his opinion.
The Court is not persuaded by Plaintiff’s arguments. There is substantial
evidence in the record from which the ALJ could have concluded that Dr. Duffy’s
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opinion was not consistent with the restrictions he recommended and his own
findings upon examination of Plaintiff. As the Magistrate Judge notes, the ALJ
determined that Dr. Duffy’s opinion did not align with the Plaintiff’s participation
in the chores Plaintiff did around the house and Plaintiff’s activities with his
family, such as hiking and working on a go-cart. (Doc. No. 20 at PgID 672). Dr.
Duffy prescribed back exercises that could be considered inconsistent with his
opinion that Plaintiff could only work one day per month. That evidence supports
the ALJ’s decision to discount Dr. Duffy’s recommended restrictions and
undermines Plaintiff’s argument that the ALJ was simply interpreting raw medical
data. The ALJ’s determination that Dr. Duffy’s opinion also should be discounted
due to Dr. Duffy’s conservative treatment was a valid consideration. If Plaintiff’s
impairments truly were so disabling that he could only attend work for one day a
month, it was reasonable for the ALJ to conclude that treating his impairments
solely by prescribing exercises and pain medication constituted a conservative
treatment. When all of these factors are combined, the Court concludes that there is
substantial evidence to support the ALJ’s decision.
Plaintiff next objects that: (a) the ALJ misapplied Drummond, and (b) the
Magistrate Judge incorrectly determined that the ALJ’s findings were more
restricted than those found in previous cases, such that the ALJ’s application of
Drummond was inappropriate. The Court disagrees with Plaintiff. The ALJ’s
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findings regarding Plaintiff’s residual functional capacity (“RFC”) were more
limited than previously determined residual functional capacities. The ALJ put
additional non-exertional restrictions on Plaintiff’s RFC, while generally leaving
the exertional restrictions the same. The only exception was that the ALJ did not
include a sit/stand option in Plaintiff’s RFC. The Court agrees with the Magistrate
Judge that, since all the jobs that the ALJ used in Step Five of the sequential
evaluation process can be performed with a sit/stand option, a failure to include the
option could not constitute reversible error.1 The Court concludes that the ALJ
correctly applied Drummond.
In his third objection, Plaintiff contends that the Magistrate Judge: (1)
excuses the ALJ’s failure to find Plaintiff’s mental health a serious impairment
under Step Two of the sequential evaluation process, and (2) finds the ALJ’s Step
Two determination to be an error. Plaintiff contends that the ALJ’s decision is not
supported by medical evidence.
The Court notes that the Magistrate Judge did not find that the ALJ should
have determined that Plaintiff had a serious impairment because of his depression.
Rather, the Magistrate Judge concluded that, if the decision was a mistake, it is not
a reversible error because if the ALJ “appropriately considered all of Trejo’s
impairments - both severe and non-severe - in formulating [her] RFC, then her
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This Court recognizes that Plaintiff also looks to ALJ Detherage’s opinion. The Court agrees with the Magistrate
Judge that, as ALJ Detherage’s opinion was vacated, it was not binding on ALJ Kleber in her formulation of
Plaintiff’s RFC under Drummond.
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failure to find additional severe impairments at Step Two does not constitute
reversible error.” (Doc. No. 20 at PgID 669). The Court finds that the ALJ
accounted for Plaintiff’s depression in the RFC by limiting Plaintiff to work that
only has “limited contact with others and stress in light of his mild depressive
symptoms and his pain.” (Id.). This limitation is supported by substantial evidence
in the record, including Plaintiff’s ability to perform household chores, his
interactions with family, and his cooperation at his hearing before the ALJ.
Although there is conflicting medical evidence regarding Plaintiff’s abilities, there
is substantial medical evidence from Dr. Caputo and state agency psychologist, Dr.
Garner, to support the decisions made by the ALJ in formulating Plaintiff’s RFC.
For the reasons set forth above, the Court finds that the ALJ’s decision,
including but not limited to the determinations Plaintiff challenges in his
objections, was supported by substantial evidence and was not based on any legally
erroneous determination. Further, the Court accepts the Magistrate Judge’s Report
and Recommendation as this Court’s findings of fact and conclusions of law.
Accordingly,
IT IS ORDERED that the Report and Recommendation of Magistrate Judge
David R. Grand [Doc. No. 20, filed May 10, 2017] is ACCEPTED and
ADOPTED as this Court’s findings of fact and conclusions of law.

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IT IS FURTHER ORDERED that Plaintiff’s Objections [Doc. No. 23,
filed May 26, 2017] are OVERRULED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary
Judgment [Doc. No. 15, filed September 7, 2016] is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary
Judgment [Doc. No. 18, filed November 19, 2016] is GRANTED.
IT IS FURTHER ORDERED that this action is DISMISSED with
prejudice.

S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: August 31, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of
record on August 31, 2017, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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