Shannon v. Social Security, Commissioner of

Filing 21

ORDER denying 11 Motion for Summary Judgment; granting 17 Motion for Summary Judgment; adopting 18 Report and Recommendation. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GREGORY TYRONE SHANNON,

Case No. 16-12963
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,

U.S. MAGISTRATE JUDGE
MONA K. MAJZOUB

Defendant.
/
ORDER ADOPTING REPORT AND RECOMMENDATION [18]; OVERRULING
PLAINTIFF’S OBJECTION [19]; DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT [11]; AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT [17]
Plaintiff Gregory Tyrone Shannon seeks judicial review of the decision of an
Administrative Law Judge (“ALJ”) denying his application for disability benefits.
Plaintiff filed a Motion for Summary Judgment [Dkt. 11] on February 3, 2017.
Defendant filed a Motion for Summary Judgment [17] on May 3, 2017.
On August 23, 2017, the Magistrate Judge issued a Report and
Recommendation (“R&R”) [18] recommending that the Court grant Defendant’s
Motion for Summary Judgment and deny Plaintiff’s Motion for Summary
Judgment. Plaintiff filed an Objection [19] to the Magistrate Judge’s R&R on
September 6, 2017. Defendant responded on September 20, 2017 [20].
For the reasons discussed below, the Court ADOPTS the Report and
Recommendation [18]. Plaintiff’s Objection to the Report and Recommendation
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[19] is OVERRULED. Plaintiff’s Motion for Summary Judgment [11] is
DENIED. Defendant’s Motion for Summary Judgment [17] is GRANTED.
FACTUAL BACKGROUND
Plaintiff, who is 54 years-old, has the equivalent of a high school education,
and previously worked as a lift operator, cook, and a cleaner. Dr. Don Harrison, the
vocational expert, described the work as medium, as usually performed, and
ranging between skilled and unskilled (see Ex. 13E and testimony). Dr. Harrison
added that the claimant actually did the cooking job at the heavy level of exertion.
Plaintiff states that he is disabled due to shortness of breath, chest pain, and
fatigue.
The R&R summarized the remainder of the record as follows:
I.

Procedural History
Plaintiff protectively filed applications for a period of disability and
disability insurance benefits on July 25, 2013, alleging that he has
been disabled since March 6, 2013, due to heart failure, epileptic
seizures, pancreatitis, leg problems, high blood pressure, shortness of
breath, and chronic fatigue. (TR 22, 93.) The Social Security
Administration denied Plaintiff’s claims on September 24, 2013, and
Plaintiff requested a de novo hearing. (TR 92, 100–101, 114–15.) On
January 21, 2015, Plaintiff appeared with a representative and testified
at the hearing before Administrative Law Judge (ALJ) Patrick J.
MacLean. (TR 35–82.) In an April 20, 2015 decision, the ALJ found
that Plaintiff was not entitled to benefits because he was capable of
performing a significant number of jobs in the national economy. (TR
29–30.) The Appeals Council declined to review the ALJ’s decision
(TR 1–6), and Plaintiff commenced this action for judicial review.
The parties then filed cross motions for summary judgment, which are
currently pending before the Court.
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II.

Administrative Law Judge’s Determination
The ALJ found that Plaintiff met the insured status requirements of
the Social Security Act through September 30, 2018; that Plaintiff had
not engaged in substantial gainful activity since March 6, 2013; and
that Plaintiff suffered from the following severe impairments: chronic
heart failure, emphysema, hypertension, a history of pancreatitis, a
history of occasional seizures, and alcohol abuse. (TR 24.) The ALJ
also found that Plaintiff had a non-severe arthritic impairment. (Id.)
Next, the ALJ found that Plaintiff’s impairments did not meet or
medically equal the severity of an impairment listed in 20 C.F.R. Part
404, Subpart P, Appendix 1. (TR 25–26.) The ALJ then found that
Plaintiff had the following RFC [residual functional capacity]:
[T]he claimant has the residual functional capacity to perform
light work as defined in 20 C.F.R. § 404.1567(b), but he can
only occasionally stoop, balance, kneel, crouch, crawl, and
climb ramps, stairs, ladders, ropes, and scaffolds, and cannot be
exposed to moving machinery or unprotected heights, and is
limited to simple, routine, repetitive tasks.
(TR 26.) Subsequently, in reliance on the testimony of the Vocational
Expert (VE), the ALJ determined that Plaintiff was capable of
performing a significant number of jobs in the national economy. (TR
29–30.) Therefore, the ALJ found that Plaintiff was not disabled under
the Social Security Act at any time from March 6, 2013, through the
date of the ALJ’s decision. (TR 30.)
STANDARD OF REVIEW

The Court reviews objections to a Magistrate Judge’s Report and
Recommendation on a dispositive motion de novo. See 28 U.S.C. §636(b)(1)(c).
Judicial review of a decision by a Social Security ALJ is limited to
determining whether the factual findings are supported by substantial evidence and
whether the ALJ employed the proper legal standards. Richardson v. Perales, 402
U.S. 389, 401 (1971). The ALJ’s factual findings “are conclusive if supported by
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substantial evidence.” Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240,
243 (6th Cir. 1987). “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 (6th Cir. 2007). The substantial evidence standard “does
not permit a selective reading of the record,” as the reviewing court’s assessment
of the evidence supporting the ALJ’s findings “must take into account whatever in
the record fairly detracts from its weight.” McLean v. Comm’r of Soc. Sec., 360 F.
Supp. 2d 864, 869 (E.D. Mich. 2005) (quoting Garner v. Heckler, 745 F.2d 383,
388 (6th Cir. 1984)). However, so long as the ALJ’s conclusion is supported by
substantial evidence, a court must “defer to that finding even if there is substantial
evidence in the record that would have supported an opposite conclusion.”
Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005); see also
Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986).
ANALYSIS
Plaintiff makes two objections: first, the Magistrate Judge erred by finding
that it was unnecessary for the ALJ to obtain an updated medical opinion; and
second, the Magistrate Judge erred by finding that the RFC was supported by
substantial evidence. The Court overrules both objections.

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I.

An updated medical opinion was unnecessary.
Plaintiff first contends that the ALJ should have obtained an updated

medical opinion to evaluate documentation from hospital visits on January 19,
2014 and May 27, 2014 that was produced after Dr. Shaw’s September 6, 2013
consultative examination. Social Security Ruling 96-6p requires an updated
medical expert opinion when either
(1) there is evidence of symptoms, signs and findings that suggest to the ALJ
. . . that the applicant’s condition may be equivalent to the listings; or (2)
when additional medical evidence is received that ‘in the opinion of the
administrative law judge . . . may change the State agency medical or
psychological consultant’s finding’ that the impairment does not equal the
listings.
Kelly ex rel. Hollowell v. Comm’r of Soc. Sec., 314 Fed. Appx. 827, 830 (6th Cir.
2009) (quoting SSR 96-6p, 1996 WL 374180 (July 2, 1996) (emphasis added)).
Dr. Bina Shaw, M.D., the consultative examiner, examined Plaintiff and
produced a report on September 6, 2013. After reviewing Plaintiff’s medical
records – including records from June 10, 2013 when Plaintiff went to the
emergency room at Detroit Receiving Hospital – she noted that Plaintiff’s x-ray
report “showed no enlarged cardiomediastinal silhouette” and that “[t]here was no
evidence of pleural effusion or pneumothorax.” (Tr. 365). Dr. Shaw found Plaintiff
to be “doing well” and stated that “[h]e no longer has swollen feet or shortness of
breath with the medications he is prescribed.” Id. Dr. Shaw opined that Plaintiff

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could “sit, stand and walk for eight hours a day” and “bend at least 40 degrees and
lift at least 20 pounds without difficulty.” (Tr. 367).
The State agency physician, Dr. Muhammad Ahmed, M.D., reviewed
Plaintiff’s medical records and submitted his report on September 24, 2013. He
found that Plaintiff could occasionally lift and/or carry 20 pounds; frequently lift
and/or carry 10 pounds; stand and/or walk (with normal breaks) for a total of about
six hours in an eight hour workday; sit (with normal breaks) for a total of about six
hours in an eight hour workday; and engage in unlimited pushing and/or pulling.
(Tr. 98). Dr. Ahmed concluded that Plaintiff was incapable of performing work he
had done in the past, but was “able to perform work that is less demanding.” (Tr.
101).
Plaintiff has neither shown that an updated medical opinion is warranted, nor
that he “has been prejudiced on the merits or deprived of substantial rights.”
Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 654 (6th Cir. 2009). The Magistrate
Judge correctly recognized that the ALJ did in fact consider the more recent
medical records, but did not believe an updated opinion was needed. The ALJ
explained:
In May 2014, in Exhibit 8F, the claimant denied any real chest pain. In
January, 2015, the claimant stated that he is walking normally (Ex. 11F).
Also, at that time, he denied any musculoskeletal, gastrointestinal, or
psychological symptoms (Ex. 11F, page four).
....
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Again, a stress test in December, 2014 showed a much improved ejection
fraction of 40 percent (Ex. 11F). An echocardiogram at that time showed a
similar ejection fraction of 40.32 percent (Ex. 11F). One report at that time
states that the claimant’s ejection fraction is 45 percent (Ex. 12F). Thus, the
claimant’s ejection fraction is much improved since March, 2013 when it
was 15–20 percent (Ex. 8F). There was an exacerbation of congestive heart
failure in June, 2013 (Ex. 8F), but that is the last reported exacerbation. A
chest x-ray in January, 2014 showed only minimal vascular congestion (Ex.
5F). Exhibit 5F further states that there is no edema. In May, 2014, there was
no edema, and heart and lung sounds were normal (Ex. 8F). In September,
2014, heart and lung sounds were again normal (Ex. 10F). At that time, the
claimant actually denied any cardiovascular symptoms (Ex. 10F). In
October, 2014, Exhibit 10F again indicated normal heart and lung sounds
and no edema. Findings in December, 2014 include no edema and only mild
cardiomegaly (Ex. 12F).
(Tr. 27-28).
This discussion indicates that the ALJ accounted for the January 2014 and
May 2014 records, even if he did not explicitly explain as much. “[A]n ALJ can
consider all the evidence without directly addressing in his written decision every
piece of evidence submitted by a party.” Kornecky v. Comm’r of Soc. Sec., 167
Fed. Appx. 496, 508 (6th Cir. 2006).
Plaintiff has not demonstrated either that the records suggest that he
qualified under one of the listings or that the ALJ believed the records may have
changed the medical experts’ findings. See Courter v. Comm’r of Soc. Sec., 479
Fed. Appx. 713, 723 (6th Cir. 2012). The Court also notes – as did the Magistrate
Judge – that Plaintiff never requested an updated medical opinion. See id. at 724.

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Because neither the Magistrate Judge nor the ALJ erred in rejecting
Plaintiff’s argument that an updated medical opinion was necessary, Plaintiff’s
objection is overruled.
II.

The RFC Determination
Plaintiff next argues that the Magistrate Judge erred by finding that the

ALJ’s RFC was supported by substantial evidence. He claims that the ALJ and
Magistrate Judge “misconstrued medical evidence and testimony that ultimately
resulted in an inadequate RFC to address Plaintiff’s multiple severe medical
conditions.” (Obj. at 5-6). Plaintiff’s argument is vague and does not appear to
directly correspond to any of the arguments raised before the Magistrate Judge. It
seems that Plaintiff is attempting to launch a general objection to the Magistrate
Judge’s findings by lumping various issues together. See Obj. at 5 (Plaintiff’s
Objection 2 refers to pages 6-13 of the R&R – the vast majority of the R&R).
The Court is not obligated to conduct de novo review of objections that are
“[f]rivolous, conclusive, or general.” Mira v. Marshall, 806 F.2d 636, 637 (6th Cir.
1986). Plaintiff’s “generalized and ambiguous objection is an insufficient basis for
this court to overrule the report and recommendation.” Fields v. Martin, No. 1310166, 2013 WL 5182182, at *1 (E.D. Mich. Sept. 13, 2013). The Court cannot
discern the specific portion of the R&R to which Plaintiff objects, and his
argument is therefore deemed waived. See id. (“[V]ague and conclusory objections
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amount to a complete failure to object as they are not sufficient to pinpoint those
portions of the report and recommendation that are legitimately in contention.”).
CONCLUSION
For the reasons stated above,
IT IS ORDERED that the Report and Recommendation [18] is ADOPTED
and entered as the findings and conclusions of the Court. Plaintiff’s Objection to
the Report and Recommendation [19] is OVERRULED.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary
Judgment [14] is GRANTED. Plaintiff’s Motion for Summary Judgment [12] is
DENIED.
SO ORDERED.

Dated: September 25, 2017

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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