Cooper v. SSA, Commissioner of
OPINION AND ORDER Adopting 13 Report and Recommendation Granting 12 Motion for Summary Judgment filed by SSA, Commissioner of, Denying 10 Motion for Summary Judgment filed by Annierl Cooper - Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 16-11567
Paul D. Borman
United States District Judge
COMMISSIONER OF SOCIAL
David R. Grand
United States Magistrate Judge
OPINION AND ORDER:
(1) OVERRULING PLAINTIFF’S OBJECTIONS (ECF NO. 14);
(2) ADOPTING THE REPORT AND RECOMMENDATION OF THE
MAGISTRATE JUDGE (ECF NO. 13);
(3) DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
(ECF NO. 10);
(4) GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT (ECF NO. 12); AND
(5) AFFIRMING THE DECISION OF THE COMMISSIONER OF
On March 27, 2017, Magistrate Judge David R. Grand issued a Report and
Recommendation on the parties’ cross-motions for summary judgment. (ECF No.
13, Report and Recommendation.) In the Report and Recommendation, the
Magistrate Judge recommended that this Court deny Plaintiff Annierl Cooper’s
Motion for Summary Judgment (ECF No. 10), grant Defendant Commissioner of
Social Security’s Motion for Summary Judgment (ECF No. 12), and affirm the
decision of the Commissioner of Social Security to deny Plaintiff’s claim for
Supplemental Security Income (ECF Nos. 7-2-7-9, Transcript of Social Security
Proceedings (hereinafter “Tr. at ___”) at 15-25.).
Now before the Court are Plaintiff’s Objections to the Report and
Recommendation. (ECF No. 14, Pl.’s Objs.) Defendant filed a timely Response.
(ECF No. 15, Def.’s Resp.) Having conducted a de novo review of the parts of the
Magistrate Judge’s Report and Recommendation to which objections have been
filed pursuant to 28 U.S.C. § 636(b)(1), the Court will overrule Plaintiff’s
Objections and adopt the Magistrate Judge’s Report and Recommendation.
The Magistrate Judge adequately set forth the procedural and factual
background of this matter in his Report and Recommendation. The Court adopts
that summary here. (Report and Recommendation at 2-6, Pg ID 1396-1400.)
STANDARDS OF REVIEW
Pursuant to Federal Rule of Civil Procedure 72(b) and 28 U.S.C. §
636(b)(1), the Court conducts a de novo review of the portions of the Magistrate
Judge’s Report and Recommendation to which a party has filed “specific written
objections” in a timely manner. Lyons v. Comm’r Soc. Sec., 351 F. Supp. 2d 659,
661 (E.D. Mich. 2004). A district court “may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate judge.” Id. 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 omitted). “A general objection, or
one that merely restates the arguments previously presented is not sufficient to
alert the court to alleged errors on the part of the magistrate judge.” Aldrich v.
Bock, 327 F. Supp. 2d 743, 747 (E.D. Mich. 2004). Likewise, an objection that
does nothing more than disagree with a magistrate judge's determination “without
explaining the source of the error” is not a valid objection. Howard v. Sec'y of
Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).
In reviewing the findings of the Administrative Law Judge (“ALJ”), the
Court is limited to determining whether those findings are supported by substantial
evidence and made pursuant to proper legal standards. See Rogers v. Comm’r of
Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (citing 42 U.S.C. § 405(h)); see also
Cutlip v. Sec’t of Health and Human Servs., 25 F.3d 284, 286 (6th Cir. 1994).
Substantial evidence is “‘such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.’” Kyle v. Comm’r of Soc. Sec., 609 F.3d 847,
854 (6th Cir. 2010) (quoting Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601, 604
(6th Cir. 2009)); see also McGlothin v. Comm’r of Soc. Sec., 299 F. App’x 516,
522 (6th Cir. 2008) (recognizing that substantial evidence is “more than a scintilla
of evidence but less than a preponderance”) (internal quotation marks omitted). “If
the Commissioner’s decision is supported by substantial evidence, [the court] must
defer to that decision, ‘even if there is substantial evidence in the record that would
have supported an opposite conclusion.’” Colvin v. Barnhart, 475 F.3d 727, 730
(6th Cir. 2007) (quoting Longworth v. Comm’r of Soc. Sec. Admin., 402 F.3d 591,
595 (6th Cir. 2005)).
As to whether proper legal criteria were followed, a decision of the Social
Security Administration (“SSA”) that is supported by substantial evidence will not
be upheld “where the SSA fails to follow its own regulations and where that error
prejudices a claimant on the merits or deprives the claimant of a substantial right.”
Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007) (citing Wilson v.
Comm’r of Soc. Sec., 378 F.3d 541, 546-47 (6th Cir. 2004)).
This Court does not “try the case de novo, nor resolve conflicts in the
evidence, nor decide questions of credibility.” Cutlip, 25 F.3d at 286. It is “for the
ALJ, and not the reviewing court, to evaluate the credibility of witnesses, including
that of the claimant.” Rogers, 486 F.3d at 247; see also Cruse v. Comm’r of Soc.
Sec., 502 F.3d 532, 542 (6th Cir. 2007) (noting that the “ALJ’s credibility
determinations about the claimant are to be given great weight, ‘particularly since
the ALJ is charged with observing the claimant’s demeanor and credibility’”)
(quoting Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997)).
In determining that Plaintiff was not disabled under the Social Security Act
(the “Act”), the ALJ employed the five-step analysis provided for in 20 C.F.R. §
404.1520. The Magistrate Judge summarized that analysis as follows:
Step One: If the claimant is currently engaged in substantial gainful
activity, benefits are denied without further analysis.
Step Two: If the claimant does not have a severe impairment or
combination of impairments that “significantly limits . . . physical or
mental ability to do basic work activities,” benefits are denied without
Step Three: If the claimant is not performing substantial gainful
activity, has a severe impairment that is expected to last for at least
twelve months, and the severe impairment meets or equals one of the
impairments listed in the regulations, the claimant is conclusively
presumed to be disabled regardless of age, education, or work
Step Four: If the claimant is able to perform his or her past relevant
work, benefits are denied without further analysis.
Step Five: Even if the claimant is unable to perform his or her past
relevant work, if other work exists in the national economy that the
claimant can perform, in view of his or her age, education, and work
experience, benefits are denied.
(Report and Recommendation at 2-3, Pg ID 1396-97 (quoting Scheuneman
v. Comm’r of Soc. Sec., 2011 WL 6937331, at *7 (E.D. Mich. Dec. 6, 2011).)
At Step One of that standard, the ALJ determined that Plaintiff had not
engaged in substantial gainful activity since November 7, 2011, the date of
Plaintiff’s initial application. At Step Two, the ALJ found that Plaintiff had the
severe impairments of status post lung cancer with right upper lobectomy, chronic
obstructive pulmonary disease, and lumbar degenerative disc disease. Then at Step
Three, the ALJ determined that Plaintiff’s severe impairments did not meet or
equal one of the impairments listed in the regulations. (Report and
Recommendation at 5, Pg ID 1399.)
The Magistrate Judge explained that after assessing Plaintiff’s residual
functional capacity, the ALJ concluded that Plaintiff
is capable of performing sedentary work, with the following
additional limitations: frequent pushing and pulling; can sit for six and
stand and/or walk for two of eight hours in a workday, with the ability
to alternate between sitting and standing up to two times per hour, and
should never have to sit, stand, or walk for more than one hour at a
time; no climbing of ropes, scaffolds, or ladders; only occasionally
performing all other postural activities; no exposure to hazards such as
heights or heavy machinery; and no concentrated exposure to
(Id.) Finally, the ALJ found at Step Four of the analysis that Plaintiff was capable
of performing her past relevant work as a clerk-typist, and concluded on that basis
that Plaintiff was not disabled under the Act. (Id. at 5-6, Pg ID 1399-1400.)
The Magistrate Judge recommended in the Report and Recommendation that
this Court upheld that determination, and Plaintiff now raises two objections. First,
Plaintiff objects to the Magistrate Judge’s reliance on this Court’s decision in
Winter v. Comm'r of Soc. Sec., No. 12-11962, 2013 WL 4604782 (E.D. Mich. Aug.
29, 2013) (Borman, J.), in concluding that the ALJ did not err by failing to afford
controlling weight to certain treating physician documents in the record. Second,
Plaintiff objects more generally that the Magistrate Judge erred in finding that the
ALJ’s decision was supported by substantial evidence. For the reasons stated
below, the Court will overrule both of Plaintiff’s objections.
Objection 1: The Magistrate Judge erred in determining that the
treating physician documents cited by Plaintiff do not constitute
opinions to be afforded controlling weight under the treating physician
In the Report and Recommendation, the Magistrate Judge rejected Plaintiff’s
argument that the ALJ failed to observe the “treating physician rule” set forth in 20
C.F.R. § 416.927(c)(2). (Report and Recommendation at 8-11, Pg ID 1402-05.) In
Plaintiff’s first objection, she focuses on two treating physician reports she had
cited in that argument, and argues that the Magistrate Judge erred in his
determination that the portions of those reports identified by Plaintiff in her Motion
for Summary Judgment did not constitute “medical opinions” under the applicable
regulations. This Court disagrees.
20 C.F.R. § 416.927(c)(2) provides that where “a treating source's medical
opinion on the issue(s) of the nature and severity of [the claimant’s] impairment(s)
is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the]
record, [it will be given] controlling weight.” “Medical opinions” are defined in the
same regulation as “statements from acceptable medical sources that reflect
judgments about the nature and severity of [the claimant’s] impairment(s),
including [the claimant’s] symptoms, diagnosis and prognosis, what [the claimant]
can still do despite impairment(s), and [the claimant’s] physical or mental
restrictions.” 20 C.F.R. § 416.927(a)(1).
In the Report and Recommendation, the Magistrate Judge rejected Plaintiff’s
argument that the ALJ failed to abide by the treating physician rule, having
interpreted Plaintiff’s argument as identifying three specific sources of evidence
that were not given “controlling weight” by the ALJ. (Report and
Recommendation at 8-11, Pg ID 1402-05.) One of the three—a November 2011
MRI report (id. at 9-11, Pg ID 1403-05)—is not mentioned in Plaintiff’s
Objections to the Report and Recommendation, and is therefore outside the scope
of this Court’s review here. The other two are treatment reports by two different
treating physicians, and the Magistrate Judge described them as follows:
Cooper also cites treatment reports from two physicians, Anil Sethi,
M.D. and Walid Osta, M.D., arguing that the Court should remand
this matter “for a proper evaluation of Drs. Sethi’s and Osta’s medical
Cooper first cites a treatment report from Dr. Sethi dated April 24,
2012, claiming that, as of that date, “she continued to complain of low
back pain that radiated to both lower extremities.” At that visit, Dr.
Sethi conducted a physical examination, which revealed tenderness
over the lumbar spine, but Cooper had negative straight leg raising
tests bilaterally, intact sensation in both lower extremities, and no
motor deficit in either lower extremity. Dr. Sethi noted that physical
therapy had not been helpful and suggested epidural steroid injections,
which Cooper agreed to try.
Cooper next cites an April 30, 2014 treatment report from Dr. Osta,
claiming that he “diagnosed her with lumbar radiculitis” and asserting
that, as of that date, she “continue[d] to have significant back pain
with radiation to her lower extremities.” . . . At that visit, Dr. Osta
discussed Cooper’s symptoms of low back pain and radiculitis, noting
that she “reported 80% relief of the low back pain symptoms” after a
prior epidural steroid injection. Thus, Dr. Osta proceeded to perform a
lumbar epidural steroid injection at L5-S1 and a lumbar epidurogram.
(Report and Recommendation at 8-9, Pg ID 1402-03 (citations omitted).)
The Magistrate Judge concluded that the ALJ was not required to give
controlling weight to these medical records, because they did not constitute
“medical opinions” under 20 C.F.R. § 416.927(a)(1). In support of this conclusion,
the Magistrate Judge cited Winter v. Comm'r of Soc. Sec., No. 12-11962, 2013 WL
4604782 (E.D. Mich. Aug. 29, 2013) (Borman, J.). In Winter, this Court adopted
the magistrate judge’s explanation that a treating physician’s treatment notes were
not entitled to controlling weight under the treating physician rule because in those
notes, the physician “never opined on what he believed [the claimant] could still do
in view of her symptoms; in other words, he offered no opinion on his patient's
ability to function.” Id. at *9.
Plaintiff’s specific objection here is that Winter is distinguishable from the
instant case: she argues that there is a “stark contrast” between the treatment notes
in Winter and the treatment notes in this case because the notes in this case
“demonstrate ongoing issues that reflect judgments about medical conditions and
physical restrictions.” (Pl.’s Objs. at 3, Pg ID 1415.) Defendant counters that just
like their counterparts in Winter, the treatment notes here “offer no opinion as to
what [Plaintiff] could still do in view of her symptoms, or what her physical
restrictions might be.” (Def.’s Resp. at 6, Pg ID 1427.)
If Defendant is arguing that the absence of these two elements conclusively
means that the notes are not medical opinions, Defendant is incorrect. The text of
the regulations make that much clear: the defining characteristic of medical
opinions is that they “reflect judgments about the nature and severity of [the
claimant’s] impairment(s), including [the claimant’s] symptoms, diagnosis and
prognosis, what [the claimant] can still do despite impairment(s), and [the
claimant’s] physical or mental restrictions.” 20 C.F.R. § 416.927(a)(1) (emphasis
added). That a particular medical record does not have two of these four
components does not mean that record is per se excluded from the category of
medical opinions. This Court recognized that in Winter, and acknowledged that the
treating physician’s “treatment notes appear[ed] in the record and, arguably, his
diagnoses constitute ‘medical opinions.’” Winter, 2013 WL 4604782 at *9. That
the treatment notes did not discuss the plaintiff’s ability to function was significant
not because such a discussion is a necessary element of any medical opinion. The
omission was significant because the stages of the ALJ’s five-step analysis that the
plaintiff claimed did not give sufficient weight to the treatment notes was precisely
the portion that was concerned with the plaintiff’s ability to function. Thus, the
magistrate judge in Winter concluded, “at steps three and four of the disability
analysis, there was no treating-source opinion for the ALJ to defer [to].” Id.
But even if Defendant misapprehends its reasoning to some degree, Winter
is still very much apposite to this case, and Plaintiff’s arguments here suffer the
same deficiencies as the plaintiff’s argument in Winter did.
Like in Winter, the portions of the treatment notes at issue here that actually
do reflect judgments about the nature or severity of Plaintiff’s impairments concern
only symptoms, diagnoses, or prognoses, and not residual abilities or physical or
mental restrictions.1 These include the following statements in Dr. Sethi’s report:
Examination of the lumbar spine reveals tenderness. Straight leg raise
test bilaterally is negative. The sensations in both lower extremities
are intact. There is no motor deficit in both lower extremities.
X-RAY STUDIES: MRI of the lumbar spine was reviewed. It reveals
degenerated disks at multiple levels in the lumbar spine. The disks at
L4-L5 and L5-S1 are protruding and causing indentation of the thecal
IMPRESSION: This is a 51-year-old female with low back pain
radiating to both lower extremities.
(Tr. at 910-11.)
Dr. Osta’s report is mostly a description of the lumbar epidural steroid
injection that Dr. Osta administered to Plaintiff, but it also contains statements that
The Court notes that many of the statements in the reports by Dr. Sethi and Dr.
Osta simply amount to reproductions of Plaintiff’s own statements to the treating
physicians, and these are certainly not “statements from acceptable medical
sources that reflect judgments about the nature and severity of [Plaintiffs]
impairment(s)” 20 C.F.R. § 416.927(a)(1).
This category also does not include the statements attached to Dr. Sethi’s report
that Plaintiff “was "[a]t risk for falls" and that she had "[c]hest pain at rest" (tr. at
912): besides the fact that they do not clearly pertain to Plaintiff’s musculoskeletal
complaints (which her summary judgment motion focused on exclusively), they
also appear to be medical record entries unrelated to the treatment actually
described in Dr. Sethi’s report, given that they were “[l]ast [u]pdated” over three
months before Dr. Sethi’s examination of Plaintiff.
are arguably symptom-related or diagnostic medical opinions. In the report, Dr.
Osta describes Plaintiff’s preoperative and postoperative diagnoses both as being
“Lumbar radiculitis” and “History of lung cancer”; characterizes Plaintiff as
having “low back pain and radiculitis symptoms”; and states that “[t]here was no
evidence of lower extremity motor or sensory deficit after the procedure.” (Tr. at
All in all, anything that could be considered “medical opinions” in these two
reports pertains only to symptoms, diagnosis, or prognosis, and does not include
opinions on what Plaintiff can do despite her impairments, or physical or mental
restrictions. For that reason, these opinions relate to Step Two of the five-step
analysis, which concerns the nature of the claimant’s impairments. So what the
court in Winter found is also true here: “at steps three and four of the disability
analysis, there was no treating-source opinion for the ALJ to defer [to].” Winter,
2013 WL 4604782 at *9.
This still leaves open the possibility that the ALJ did not give proper weight
to those medical opinions at Step Two (or at other steps of the analysis), of course.
But also like in Winter, the absence of any reference to these opinions in those
portions of the ALJ’s analysis does not “lead the Court to question whether the
ALJ fully appreciated Plaintiff’s impairments” when she made her determination.
Id. at *10. See Kornecky v. Comm'r of Soc. Sec., 167 F. App'x 496, 508 (6th Cir.
2006) (“[A]n ALJ can consider all the evidence without directly addressing in his
written decision every piece of evidence submitted by a party.”) (quoting Loral
Defense Systems–Akron v. N.L.R.B., 200 F.3d 436, 453 (6th Cir. 1999)).
Winter makes for an apt comparison to this case in one more respect. As in
Winter, “even if the ALJ's picture of Plaintiff was somewhat incomplete, Plaintiff
has not persuaded the Court that the ALJ's view of her resulted in prejudice.”
Winter, 2013 WL 4604782 at *10. This Court’s review of the ALJ’s determination
is highly deferential, and that determination “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). The
Magistrate Judge determined that the ALJ’s decision was supported by substantial
evidence in several different regards, including the ALJ’s reliance on the opinion
of a state agency physician (Report and Recommendation at 10, Pg ID 1404), and
the ALJ’s credibility findings as to Plaintiff’s own testimony (Report and
Recommendation at 15-17, Pg ID 1409-11). This Court sees no reason to upset
those determinations by the Magistrate Judge.
In short, Plaintiff has not shown that the Magistrate Judge’s reliance on
Winter was misplaced. The Court will therefore overrule Plaintiff’s first objection.
Objection 2: The Magistrate Judge erred in determining that the ALJ’s
decision was supported by substantial evidence.
In her second objection, Plaintiff claims that the Magistrate Judge erred in
finding that the ALJ’s decision was supported by substantial evidence, asserting
generally that “both the ALJ and the Magistrate Judge misconstrued medical
evidence and testimony that ultimately . . . resulted in an inadequate determination
to address Plaintiff[‘]s multiple severe medical conditions.” (Pl.’s Objs. at 4, Pg ID
1416.) After summarizing her conditions and impairments, Plaintiff concludes that
“[i]f the ALJ and Magistrate had not made the above outlined legal errors and/or
all of the legal errors outlined in Plaintiffs Motion for Summary Judgment when
making their decisions, Plaintiff would have been found to be disabled.” (Id. at 6,
Pg ID 1418.)
This argument is generic, and makes no attempt to explain any specific error
in fact-finding or reasoning on the part of the Magistrate Judge or the ALJ. It is
therefore not a valid objection. See Howard, 932 F.2d at 509 (“We would hardly
countenance an appellant's brief simply objecting to the district court's
determination without explaining the source of the error. We should not permit
appellants to do the same to the district court reviewing the magistrate's report.”);
see also Hartsfield v. Comm'r of Soc. Sec., No. 16-10473, 2017 WL 1160624, at *3
(E.D. Mich. Mar. 29, 2017) (“Simply saying that evidence was ‘misconstrued,’
without more, is insufficient to mount a proper objection.”).
Accordingly, the Court will overrule Plaintiff’s second objection.
For all of the reasons stated above, the Court hereby:
- REJECTS Plaintiff’s Objections (ECF No. 14);
- ADOPTS the Report and Recommendation of Magistrate Judge David R. Grand
(ECF No. 13) as this Court’s findings and conclusions of law;
- DENIES Plaintiff’s Motion for Summary Judgment (ECF No. 10);
- GRANTS Defendant’s Motion for Summary Judgment (ECF No. 12); and
- AFFIRMS the decision of the Commissioner of Social Security.
IT IS SO ORDERED.
s/Paul D. Borman
Paul D. Borman
United States District Judge
Dated: August 15, 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 August 15, 2017.
Deborah Tofil, Case Manager
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