Hammett v. Social Security, Commissioner of

Filing 18

ORDER 15 Adopting Report and Recommendation re 12 Plaintiff's Corrected Motion for Summary Judgment is Denied, 11 Plaintiff's Motion for Summary Judgment is moot, 14 Defendant's Motion for Summary Judgment is granted; Case is Hereby Dismissed with Prejudice - Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KEISHA L. HAMMETT,
Case No. 16-12304
Plaintiff,
Honorable Nancy G. Edmunds
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
/

OPINION AND ORDER ACCEPTING THE MAGISTRATE JUDGE’S AUGUST 15,
2017 REPORT AND RECOMMENDATION [15]
I.

Background
Plaintiff filed this action seeking review of the Commissioner of Social Security's

decision denying her application for disability insurance and supplemental security income.
The Court referred the matter to the Magistrate Judge who now recommends upholding the
Commissioner's decision. (Dkt. 15). On August 23, 2017, Plaintiff filed a series of objections
to the Magistrate Judge's report. Having conducted a de novo review of the parts of the
Magistrate Judge's report to which specific objections have been filed, the Court DENIES
Plaintiff's objections and ACCEPTS AND ADOPTS the Magistrate Judge's report and
recommendation. It is further ordered that Plaintiff's corrected motion for summary
judgment [12] is DENIED, Plaintiff's motion for summary judgment [11] is MOOT,
Defendant's motion for summary judgment [14] is GRANTED, and the case is hereby
DISMISSED with prejudice.

II.

Analysis
A. Treating Psychiatrist's Opinion
Plaintiff objects to the Magistrate Judge's analysis of the Administrative Law Judge's

("ALJ") evaluation of opinion evidence from Plaintiff's treating psychiatrist, Dr. Anjana
Bhrany. The Magistrate Judge correctly noted that, although the ALJ did not reference Dr.
Bhrany by name, the ALJ made multiple references to records from Genesee Health
System ("GHS"), including the assignment of "little weight" to Dr. Bhrany's May 2014 Global
Assessment Functioning ("GAF") assessment of Plaintiff.1 The ALJ noted that GAF scores
are opinion evidence needing supporting evidence to give them weight. (Tr. 27). See
DeBoard v. Comm'r of Soc. Sec., 211 F. App'x 411, 415 (6th Cir. 2006) (noting that the
Commissioner has indicated that GAF scores have no direct correlation to the severity
requirements of the mental disorders listings, and that the Sixth Circuit has affirmed denials
of disability benefits where applicants had GAF scores of 50 or lower).
The ALJ concluded that Dr. Bhrany's May 2014 finding that Plaintiff's GAF score was
50 was entitled to "little weight" because it was not proportionate with Plaintiff's activities
and social functioning and because it was inconsistent with the mental status examination
performed that same day as well the subsequent examinations performed at GHS. (Tr. 2831). These mental status examinations revealed that Plaintiff was regularly well-dressed

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Plaintiff refers to Dr. Bhrany as her "longtime treating psychiatrist" who assessed
"multiple GAF scores of 50;" however, there is no indication in the record that Dr. Bhrany
saw Plaintiff after conducting an initial psychiatric evaluation in May 2014. Although many
of the subsequent records from GHS contain Plaintiff's diagnoses, including the GAF score
of 50, the date next to the GAF score is always May 13, 2014, indicating that Dr. Bhrany
conducted a GAF assessment of Plaintiff only once. Plaintiff does not point to any other
opinion of Dr. Bhrany in the record.
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and groomed; was oriented to time, place, and person; had coherent thoughts, intact
memory, and normal intellectual functioning; had normal behavior and was cooperative;
communicated well; and responded positively to treatment and medications, which helped
to stabilize her mood. Id. The Court is thus satisfied that the ALJ properly considered the
supportability and consistency of Dr. Bhrany's opinion in accordance with 20 C.F.R. §§
404.1527(c)(3),(4), 416.927(c)(3),(4), and the ALJ's reasons for assigning Dr. Bhrany's
opinion "little weight" are clear. See Francis v. Comm'r of Soc. Sec., 414 F. App'x 802, 804
(6th Cir. 2011) (noting that the regulations do not require an exhaustive factor-by-factor
analysis of each of the six regulatory or "Wilson" factors listed in 20 C.F.R. §§
404.1527(c)(1)-(6), 416.927(c)(1)-(6)) (citing Wilson v. Comm'r of Soc. Sec., 378 F.3d 541,
544 (6th Cir. 2004)).
B. Treating Social Worker's Opinion
Plaintiff next objects to the Magistrate Judge's analysis of the ALJ's evaluation of
opinion evidence from Plaintiff's treating social worker, Joseph Laird, M.S., L.L.P.C. On
December 28, 2015, Mr. Laird completed an SSA Medical Source Statement. Mr. Laird
opined that Plaintiff had moderate difficulties in most areas, including in her ability to
interact appropriately with the public, supervisors, and co-workers. (Tr. 784-85). He further
opined that Plaintiff had marked difficulties in understanding and remembering complex
instructions, and marked difficulties in responding appropriately to usual work situations and
to changes in a routine work setting. Id. The ALJ gave "partial weight" to Mr. Laird's opinion
to the extent that it was consistent with the conclusion that Plaintiff suffers moderate
difficulties in maintaining social functioning as well as concentration, persistence, or pace.
(Tr. 33). The ALJ limited Plaintiff to "simple, routine tasks, in work that has only occasional
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changes in the work setting, and that involves only occasional interaction with the general
public." (Tr. 25). The ALJ concluded that Plaintiff could perform her past relevant work,
which included self-employment as a house cleaner. (Tr. 34-35, 59).
Plaintiff argues that the ALJ discounted Mr. Laird's opinion that Plaintiff has moderate
difficulties in her ability to interact with supervisors and co-workers. However, Plaintiff's past
relevant work as a self-employed house cleaner, which the ALJ and Vocational Expert
("VE") found that Plaintiff could perform, does not generally require more than superficial
interaction with supervisors and any co-workers. Plaintiff also argues that the ALJ
discounted Mr. Laird's opinion that Plaintiff has marked difficulties in her ability to respond
appropriately to usual work situations and to changes in a routine work setting because
such an individual "could not be expected to function appropriately in a job that has
occasional changes in the work setting and no limitations on what constitutes 'usual work
situations.'" Despite Plaintiff's assertion, the ALJ accommodated Plaintiff's difficulties by
limiting her to simple, routine tasks with only occasional changes in the work setting.
Plaintiff's past relevant work as a self-employed house cleaner, which the ALJ and VE
found that Plaintiff could perform, generally involves simple and routine work situations with
few workplace changes. Cf. Tansil v. Comm'r of Soc. Sec., No. 15-cv-11405, 2016 WL
4727478, at *2 (E.D. Mich. Sept. 12, 2016) (affirming Commissioner's decision where
Residual Functional Capacity limited claimant to "simple, routine, repetitive tasks in a work
environment free from fast paced production requirements involving simple, work related
decisions with few if any workplace changes; and brief and superficial contact with
coworkers, supervisors, and the general public;" and where representative work identified
by the VE included maid/housekeeper).
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The Court is satisfied that the ALJ properly considered Mr. Laird's opinion as an
"other source" under 20 C.F.R. §§ 404.513(d), 416.513(d) and finds no prejudicial error in
the ALJ's decision to afford "partial weight" to Mr. Laird's opinion as discussed above.2 In
any event, the Court agrees with the Magistrate Judge that Plaintiff did not make a
developed argument in her motion for summary judgment as to how the ALJ incorrectly
evaluated Mr. Laird's opinion. See Roby v. Comm'r of Soc. Sec., 48 F. App'x 532, 536 (6th
Cir. 2002) ("Issues that are adverted to in a perfunctory manner without some effort at
developed argumentation are generally deemed waived.") (citing Gragg v. Ky. Cabinet for
Workforce Dev., 289 F.3d 958, 963 (6th Cir. 2002)).
C. Treating Nurse's Opinion
Plaintiff also objects to the Magistrate Judge's analysis of the ALJ's evaluation of
opinion evidence from Plaintiff's treating nurse, Jackie Duncan, N.P. On January 11, 2016,
Ms. Duncan completed an SSA Medical Source Statement. Ms. Duncan opined that
Plaintiff had marked difficulties in most areas, and moderate difficulties in two areas. (Tr.
788-89). The ALJ gave "little weight" to Ms. Duncan's opinion because it was inconsistent
with the medical records of evidence and mental status examinations. The ALJ went on to
cite specific medical records from July 2013 through September 2015 to highlight the
inconsistencies. (Tr. 33-34). As discussed in detail by the ALJ and the Magistrate Judge,
these records included recent examinations of Plaintiff by Ms. Duncan herself during which
she regularly described Plaintiff as well-dressed and groomed (Tr. 384, 539, 621, 711);

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The Commissioner correctly notes that the ALJ was not required to give "good reasons"
for the weight accorded to Mr. Laird's opinion, as Mr. Laird was not a treating physician.
See Kornecky v. Comm'r of Soc. Sec., 167 F. App'x 496, 507 (6th Cir. 2006).
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oriented to time, place, and person (Tr. 384, 539, 621, 711); having coherent and logical
thoughts (Tr. 384, 539, 621, 711); exhibiting normal behavior and being cooperative (Tr.
384, 539, 621, 711); and responding positively to treatment and medications, which helped
to stabilize her mood (Tr. 382, 542, 619).
Plaintiff first claims that the aforementioned observations of Plaintiff during the mental
status examinations do not "cancel out" a depressed mood, anxious affect, hallucinations,
or suicidal or homicidal ideation. The Court agrees with the Commissioner that Plaintiff is
rehashing an argument that she previously raised in her motion for summary judgment.
"This Court is not obligated to address objections made in this form because the objections
fail to identify the specific errors in the magistrate judge's proposed recommendations, and
such objections undermine the purpose of the Federal Magistrate's Act, 28 U.S.C. § 636,
which serves to reduce duplicative work and conserve judicial resources." Owens v.
Comm'r of Soc. Sec., No. 1:12–47, 2013 WL 1304470, at *3 (W.D. Mich. Mar. 28, 2013)
(citations omitted). The Court also agrees with the Magistrate Judge that Plaintiff fails to
show or explain how Plaintiff's mood swings and diagnoses are not accommodated by the
non-exertional, mental health limitations contained within the ALJ's Residual Functional
Capacity ("RFC").
Plaintiff argues that the ALJ "cherry picked" medical records to support his conclusion
and discount Ms. Duncan's opinion. This Court disagrees and finds that the ALJ
appropriately weighed the conflicting evidence discussed above and came to a reasoned
conclusion. Cf. DeLong v. Comm'r of Soc. Sec., 748 F.3d 723, 726 (6th Cir. 2014) (noting
that "cherry picking" allegations are seldom successful because crediting them would
require courts to re-weigh record evidence); White v. Comm'r of Soc. Sec., 572 F.3d 272,
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284 (6th Cir.2009) (noting that "cherry picking" evidence could be described more neutrally
as weighing the evidence). The Court further notes that Plaintiff failed to raise this "cherry
picking" argument in her motion for summary judgment, and therefore waived it. See Swain
v. Comm'r of Soc. Sec., 379 F. App'x 512, 517-18 (6th Cir. 2010).
The Court is satisfied that the ALJ properly considered Ms. Duncan's opinion as an
"other source" under 20 C.F.R. §§ 404.513(d), 416.513(d) and finds no prejudicial error in
the ALJ's decision to afford "little weight" to Ms. Duncan's opinion as discussed above.3
D. State Agency Consultant's Opinion
Plaintiff objects to the Magistrate Judge's analysis of the ALJ's evaluation of opinion
evidence from the state agency consultant, Dr. Ashok Kaul. On September 19, 2014, Dr.
Kaul conducted a mental RFC assessment. Dr. Kaul opined that, although Plaintiff is
moderately limited in her ability to carry out detailed instructions and maintain attention and
concentration for extended periods, Plaintiff retains sufficient attention and concentration
to be able to complete simple tasks. (Tr. 81). Dr. Kaul also opined that Plaintiff is
moderately limited in her ability to interact appropriately with the general public and to
accept instructions and respond appropriately to criticism from supervisors. (Tr. 81-82). He
opined that Plaintiff's work ought to require no dealings with the public and only superficial
contact with supervisors. (Tr. 82). Dr. Kaul further opined that, although Plaintiff is
moderately limited in her ability to respond appropriately to changes in the work setting,
Plaintiff can adjust to simple changes. Id. Dr. Kaul concluded that Plaintiff is capable of

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The Commissioner correctly notes that the ALJ was not required to give "good reasons"
for the weight accorded to Ms. Duncan's opinion, as Ms. Duncan was not a treating
physician. See Kornecky, 167 F. App'x at 507.
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"low-stress simple, routine, 1-2 step unskilled tasks with the interpersonal accommodations
noted above." Id. The ALJ assigned Dr. Kaul's opinion "great weight" at step 3 in assessing
the severity of Plaintiff's mental impairments, explaining that Dr. Kaul's opinion is consistent
with the evidence of record as a whole. (Tr. 23-24). The ALJ later assigned Dr. Kaul's
mental RFC description "partial weight" at step 4 to the extent the opinion was consistent
with the RFC and Dr. Kaul's assessment of Plaintiff's moderate difficulties in social
functioning and moderate difficulties in maintaining concentration, persistence, or pace. (Tr.
33).
As she did in her motion for summary judgment, Plaintiff again argues that the ALJ's
RFC discounts Dr. Kaul's opinion that Plaintiff: (1) is moderately limited in her ability to
maintain attention and concentration for extended periods; (2) should have no dealings with
the public and only superficial contact with supervisors; and (3) should be limited to only
simple changes in the work setting, and to tasks that are low-stress and 1-2 step unskilled
tasks. Plaintiff complains that the Magistrate Judge gave the ALJ "a pass," but she does
little more than rehash an argument that she previously raised in her motion for summary
judgment. As discussed above, the Court need not address objections made in this form.

The Magistrate Judge correctly concluded that Plaintiff failed to meet her burden of
showing that the RFC as assessed is unsupported by substantial evidence. See Walters
v. Comm'r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). Plaintiff's list of differences
between Dr. Kaul's mental RFC description and the ALJ's RFC alone do not meet that
burden. The ALJ's decision provided a detailed analysis of the medical evidence in the
record, which supported the ALJ's RFC assessment and, as discussed above, included
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evidence that Plaintiff's mental health status improved and stabilized with treatment and
medication. The Court further finds that much of Dr. Kaul's opinion was accepted by the
ALJ and incorporated in to ALJ's RFC assessment.4 The Court agrees with the Magistrate
Judge that, in assigning "partial weight" to Dr. Kaul's conclusion, the ALJ properly
considered the consistency of the opinion in accordance with 20 C.F.R. §§ 404.1527(c)(4),
416.927(c)(4).
E. Plaintiff's Request for a Mental Health Consultative Examination
Plaintiff objects to the Magistrate Judge's conclusion that "to the extent Plaintiff
observes that no mental health consultative examination was conducted or seeks remand
for a psychiatric evaluation (see DE 12 at 5, 11), she has failed to argue, much less
demonstrate, that one was warranted under the regulations." (Dkt. 15). Plaintiff's objection

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The Court notes that the RFC limiting Plaintiff to "simple, routine tasks, in work that has
only occasional changes in the work setting, and that involves only occasional interaction
with the general public" accommodated Plaintiff's moderate limitations in maintaining
attention and concentration for extended periods, as well as in responding appropriately
to changes in the work setting. See Smith-Johnson v. Comm'r of Soc. Sec., 579 F. App'x
426, 437 (6th Cir. 2014) (distinguishing Ealy v. Comm'r of Soc. Sec., 594 F.3d 504 (6th Cir.
2010), on which Plaintiff relies). Although the RFC does not specifically contain the words
"low-stress" and "1-2 step unskilled tasks," when the RFC is viewed in context, it is
apparent that the ALJ adequately provided a functional restriction for these limitations. See
Smith-Johnson, 579 F. App'x at 438 (Although the ALJ did not specifically adopt the
physician's opinion that Smith-Johnson needed a "very low stress environment," the court
found that "[b]y limiting Smith-Johnson to 'simple, routine and repetitive tasks' and
avoidance of interaction with the general public, the ALJ functionally limited Smith-Johnson
to work in identifiable situations in which she performs well psychologically."). Lastly, the
ALJ limited Plaintiff to "occasional interaction with the general public," which incorporated
Dr. Kaul's opinion that Plaintiff is only moderately limited in her ability to interact
appropriately with the general public. Although the RFC did not included a limitation
regarding contact with supervisors, there was no prejudicial error where Plaintiff's past
relevant work as a self-employed house cleaner, which the ALJ and VE concluded that
Plaintiff could perform, involves only superficial contact with supervisors. Cf. Tansil, 2016
WL 4727478, at *2.
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merely recites 20 C.F.R. § 220.53(b)(5) and (7) and states that "[b]oth of these sections
appear to be applicable to Plaintiff's claims." Plaintiff failed to make a developed argument
as to any consultative examination both at the summary judgment stage and at this stage.
Accordingly, the Court denies this objection.
F. Evidence Post-Dating Dr. Kaul's Opinion
Plaintiff objects to the Magistrate Judge's conclusion that evidence post-dating Dr.
Kaul's assessment did not warrant remand, arguing that the ALJ erred in assigning "great
weight" to Dr. Kaul's opinion without considering the fact that Dr. Kaul did not review all of
the medical records, or what effect subsequent records might have had on Dr. Kaul's
opinion. The Magistrate Judge noted that the ALJ referred to two mental health related
hospitalizations, the first from April 29, 2014 to May 7, 2014, and the second from August
17, 2015 to August 22, 2015. At step 3, the ALJ then assigned "great weight" to Dr. Kaul's
September 2014 opinion that Plaintiff had experienced "one or two" repeated episodes of
decompensation, each of extended duration, on the basis that it was consistent with the
evidence of record as a whole. (Tr. 24).
The Magistrate Judge found that the ALJ acknowledged his awareness that Dr. Kaul
did not review the entire record by noting that his opinion was issued in September 2014
and also noting by date range the August 2015 hospitalization. (Dkt. 15 at 22-23) (citing
Markland v. Comm'r of Soc. Sec., No. 2:15-cv-11578, 2016 WL 8116885, at *3 (E.D. Mich.
Sept. 22, 2016) (finding that, where the ALJ noted the effective dates of the consulting
physicians' review of the evidence as well as the date of a later opinion from an examining
physician, the ALJ gave some indication that she considered that the consulting physicians
based their review on the evidence of record at the time without the benefit of the
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examining physician's subsequent opinion)). The Magistrate Judge also correctly noted that
there is no categorical requirement that a non-treating source's opinion be based on a
complete or more detailed and comprehensive case record; a non-treating source's opinion
must only be supported by evidence in the case record. (Dkt. 15 at 24) (citing Helm v.
Comm'r of Soc. Sec., 405 F. App'x 997, 1002 (6th Cir. 2011)). Lastly, to the extent that
Plaintiff argued that had Dr. Kaul been aware of the August 2015 hospitalization, he might
have concluded that Plaintiff satisfied Paragraph B criteria at step 3, the Magistrate Judge
concluded that neither the April to May 2014 nor the August 2015 hospitalizations lasted
two weeks as required to qualify for a mental health listing. (Dkt. 15 at 25) (citing 20 C.F.R.
Part 404, Subpart P, Appendix 1, 12.00(C)(4)).
The Court finds no error in the Magistrate Judge's analysis, and Plaintiff fails to
identify any, merely disagreeing with the outcome. Accordingly, the Court denies this
objection.
G. Plaintiff's Credibility
Plaintiff objects to the Magistrate Judge's determination that the ALJ properly
evaluated Plaintiff's credibility. In her motion for summary judgment, Plaintiff argued that
the ALJ discounted her statements regarding the intensity, persistence, and limiting effects
of her symptoms "without doing the required analysis [or] explaining the basis for his
credibility assessment." (Dkt. 12 at 5). The Magistrate Judge found that Plaintiff's credibility
argument was underdeveloped and noted that the only citations to the record were to her
own testimony about anxiety and to the VE's testimony regarding the effects of being off
task, having unpredictable breaks, or having unexcused or unplanned absences. The
Magistrate Judge further found that the ALJ provided a detailed explanation for assigning
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"little weight" to Plaintiff's allegation that she is unable to perform any work on a regular and
sustained basis because this was inconsistent with the medical records of evidence. The
Magistrate Judge specifically noted that the ALJ referenced medical records indicating the
favorable effects of medication and absence of side effects, which reflected consideration
of 20 C.F.R. §§ 404.1529(c)(3)(iv), 416.929(c)(3)(iv).
The ALJ properly considered Plaintiff's subjective complaints as well as her daily
activities (Tr. 26) (discussion of Plaintiff's testimony regarding her daily activities); the
location, duration, and frequency of her symptoms (Tr. 26-31); precipitating and
aggravating factors (Tr. 25, 29, 32) (discussion of being paranoid around others,
depression related to external stressors, and being "a little depressed . . . due to red tape
with Social Security); effectiveness and side effects of medications (Tr. 25, 26, 29-30, 32);
and treatment other than medication (Tr. 29, 30) (noting Plaintiff's engagement in therapy).
The Court is thus satisfied that the ALJ properly assessed Plaintiff's credibility in
accordance with 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). Plaintiff has not shown that
the ALJ's credibility determination is unsupported by substantial evidence, or that there is
any compelling reason to disturb the ALJ's credibility determination.
In any event, the Court agrees with the Magistrate Judge that Plaintiff did not make
a developed argument in her motion for summary judgment as to how the ALJ incorrectly
evaluated Plaintiff's credibility, and she, therefore, waived this argument. See Roby, 48 F.
App'x at 536 (6th Cir. 2002).
H. Plaintiff's Moderate Difficulties in Maintaining Concentration, Persistence,
or Pace

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Plaintiff's final objection is to the Magistrate Judge's conclusion that the ALJ properly
accommodated Plaintiff's moderate difficulties in maintaining concentration, persistence,
or pace when he limited her to "simple, routine tasks, in work that has only occasional
changes in the work setting." Plaintiff is again rehashing an argument that she previously
raised in her motion for summary judgment, relying on cases that the Magistrate Judge
already appropriately distinguished. As discussed above, the Court need not address
objections made in this form.
III.

Conclusion
For the reasons set forth above, the Court concludes that the ALJ's RFC assessment

is supported by substantial evidence. Accordingly, the Court DENIES Plaintiff's objections
and ADOPTS the Magistrate Judge's Report and Recommendation.

SO ORDERED.

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: September 12, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of
record on September 12, 2017, by electronic and/or ordinary mail.
s/Carol J. Bethel
Case Manager

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