Monroe v. Commissioner of Social Security

Filing 22

ORDER accepting 19 Report and Recommendation, overruling plaintiff's objections 20 , granting defendant's motion for summary 15 and denying plaintiff's Motion for Summary Judgment 14 and dismissing plaintiff's claims. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PENNY JEAN MONROE,
Plaintiff,
Case No. 16-CV-12903
HON. GEORGE CARAM STEEH

vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
__________________________/

ORDER ACCEPTING REPORT AND RECOMMENDATION (DOC. 19),
OVERRULING PLAINTIFF’S OBJECTIONS (DOC. 20), GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (DOC. 15),
DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT (DOC. 14), AND DISMISSING PLAINTIFF’S CLAIMS
This matter is presently before the Court on the parties’ crossmotions for summary judgment. Plaintiff Penny Jean Monroe seeks judicial
review of the Administrative Law Judge’s (ALJ) finding that she is not
disabled. Defendant Commissioner of Social Security seeks to affirm the
denial of plaintiff’s applications for Disability Insurance Benefits (DIB) under
the Social Security Act, 42 U.S.C. § 401 et seq., and Supplemental
Security Income Benefits (SSI) under Title XVI, 42 U.S.C. § 1381 et seq.
The matter was referred to Magistrate Judge Patricia T. Morris, who issued
a report and recommendation on April 13, 2017, recommending that
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plaintiff’s motion be denied and defendant’s motion be granted. (Doc. 19).
Plaintiff filed objections on April 27, 2017. (Doc. 20). Defendant replied on
May 1, 2017. (Doc. 21).
I. Procedural and Factual History
Plaintiff filed applications for DIB and SSI benefits on December 9,
2013, alleging that she has been disabled since September 19, 2009. After
her applications were denied, plaintiff requested a hearing before an ALJ.
ALJ Thomas L. Waters held a hearing on February 4, 2015 and determined
that plaintiff was not disabled within the meaning of the Acts.
The Social Security Administration Appeals Counsel denied plaintiff’s
request for review of the ALJ’s decision on June 14, 2016, “at which point
the ALJ’s decision became the final decision of the Commissioner of Social
Security.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir.
2004) (internal citations omitted). Plaintiff initiated this civil action for
review of the Commissioner’s final decision pursuant to 42 U.S.C. § 405(g)
on August 9, 2016. (Doc. 1).
II. Legal Standard
The standard of review to be employed by the 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
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specified proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1)(C). This Court “may accept, reject or
modify, in whole or in part, the findings or recommendations made by the
magistrate.” Id.
A district court may affirm, modify, or reverse the Commissioner’s
decision, with or without remand. See 42 U.S.C. § 405(g). The Court
“must affirm the Commissioner’s decision if it is supported by substantial
evidence and was made pursuant to proper legal standards.” Rabbers v.
Comm’r Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (internal citations
omitted). “Substantial evidence is defined as more than a scintilla of
evidence but less than a preponderance; it is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (internal citations
omitted). The Court must examine the administrative record as a whole,
and may consider any evidence in the record, regardless of whether it has
been cited by the ALJ. See Walker v. Sec’y of Health & Human Servc.,
884 F.2d 241, 245 (6th Cir. 1989). In deciding whether substantial
evidence supports the ALJ’s decision, the Court does “not try the case de
novo, resolve conflicts in evidence or decide questions of credibility.” Bass
v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007) (internal citations omitted).
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III. Analysis
Magistrate Judge Morris’ report and recommendation concludes that
substantial evidence supports the ALJ’s finding that plaintiff was not
disabled. Plaintiff filed two objections. (Doc. 20).
Preliminarily, the Court shall address defendant’s waiver argument.
Defendant asserts that plaintiff’s objections simply restate arguments
raised in her summary judgment brief, as opposed to challenging portions
of the report and recommendation, and therefore, should be deemed
waived. Although plaintiff’s objections are similar to her summary judgment
arguments, the Court will consider them.
First, plaintiff argues that Magistrate Judge Morris erred by finding
that the ALJ properly evaluated her impairments. Plaintiff asserts that the
ALJ failed to consider her obesity and its accompanying comorbidities.
The ALJ considered plaintiff’s obesity and related medical issues
when assessing her residual functional capacity (RFC). Plaintiff failed to
provide sufficient evidence to show that obesity limited her ability to work.
Her medical record provided scant traces of obesity and no evidence that it
caused work related limitations. She merely made vague references to
difficulties with obesity in her testimony, which the ALJ determined were not
credible. Plaintiff alleged related conditions including sleep apnea, GERD,
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and depression. But plaintiff denied depression symptoms and the record
contained evidence that her sleep apnea was not as severe as she
claimed. The record also includes a physician’s note that she “is quite
dramatic,” which coincides with the ALJ’s determination that her testimony
was not credible.
Second, plaintiff objects to the finding that she does not meet or
equal Listing 1.03. Listing 1.03 requires plaintiff to demonstrate that she
underwent “[r]econstructive surgery or surgical arthrodesis of a major
weight-bearing joint, with inability to ambulate effectively, as defined in
1.00B2b, and return to effective ambulation did not occur, or is not
expected to occur, within 12 months of onset.” 20 C.F.R. Pt. 404, Subpt. P,
App’x I § 1.03. “Inability to ambulate” is defined as
an extreme limitation of the ability to walk; i.e., an
impairment(s) that interferes very seriously with the
individual's ability to independently initiate, sustain,
or complete activities. Ineffective ambulation is
defined generally as having insufficient lower
extremity functioning (see 1.00J) to permit
independent ambulation without the use of a handheld assistive device(s) that limits the functioning of
both upper extremities.
Id. at § 1.00B2b(1).
To ambulate effectively, individuals must be capable
of sustaining a reasonable walking pace over a
sufficient distance to be able to carry out activities of
daily living. They must have the ability to travel
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without companion assistance to and from a place
of employment or school. Therefore, examples of
ineffective ambulation include, but are not limited to,
the inability to walk without the use of a walker, two
crutches or two canes, the inability to walk a block
at a reasonable pace on rough or uneven surfaces,
the inability to use standard public transportation,
the inability to carry out routine ambulatory
activities, such as shopping and banking, and the
inability to climb a few steps at a reasonable pace
with the use of a single hand rail. The ability to walk
independently about one's home without the use of
assistive devices does not, in and of itself,
constitute effective ambulation.
Id. at § 1.00B2b(1).
Plaintiff asserts that she meets or equals Listing 1.03 because her
knee replacement surgery constitutes “[r]econstructive surgery or surgical
arthrodesis of a major weight-bearing joint,” she lacks the ability to
ambulate effectively because she is unable to walk a block at a reasonable
pace on rough or uneven surfaces, see (Doc. 20 at PageID 896), and, per
her testimony, she did not return to effective ambulation within 12 months
of her latest knee surgery. But the record contains little evidence
supporting plaintiff’s argument that she suffered an impaired gait. Instead,
it contains numerous statements regarding plaintiff’s normal gait, (Doc. 127 at PageID 343, 444, 489), and ability to normally walk heal-to-toe, (Doc.
12-7 at PageID 359; Doc. 12-8 at PageID 591, 677-78). Furthermore, the
ALJ’s findings include an explanation crediting medical evidence of
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plaintiff’s physicians who noted “a well aligned stable total knee,” that “was
stable in both flexion and extension to stress testing,” and a nonantalgic
gait. (Doc. 12-2 at PageID 54). Physicians also noted plaintiff’s statements
that her “knee felt really good” and “had been doing well.” (Id.).
Plaintiff further asserts that Magistrate Judge Morris did not review
the ALJ’s decision regarding whether the medical evidence illustrated an
impairment, but rather, simply adopted the defendant’s post hoc
rationalization. Plaintiff’s argument fails. Magistrate Judge Morris’s report
and recommendation does not accept defendant’s post hoc rationalization.
It reviews the ALJ’s opinion, which contains the relevant analysis regarding
plaintiff’s medical evidence, but merely does so in an unexpected location;
in the surrounding pages, (Doc. 12-2 at PageID 49-54), as opposed to the
more common placement directly below the finding. See (Doc. 12-2 at
PageID 52) (lacking explanation below the fourth finding of fact and
conclusion of law).
IV. Conclusion
Accordingly, plaintiff’s objections are OVERRULED. Consistent with
the analysis herein, the Court hereby ACCEPTS Magistrate Judge Morris’
report and recommendation, GRANTS defendant’s motion for summary

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judgment, DENIES defendant’s motion for summary judgment, and
DISMISSES plaintiff’s complaint with prejudice.
IT IS SO ORDERED.
Dated: September 14, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
September 14, 2017, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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