Plummer v. Social Security

Filing 21

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION (#19), OVERRULING DEFENDANT'S FIRST, SECOND, THIRD, FOURTH, FIFTH, SIXTH, SEVENTH, NINTH AND TENTH OBJECTIONS (#20), SUSTAINING DEFENDANT'S EIGHTH OBJECTION (#20) GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (#13), DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (#17), AND REMANDING THE CASE FOR FURTHER PROCEEDINGS. Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KEREN R. PLUMMER,
Plaintiff,
Case No. 2:16-cv-13059
HON. GERSHWIN A. DRAIN
vs.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________/
ORDER ACCEPTING AND ADOPTING REPORT AND
RECOMMENDATION (#19), OVERRULING DEFENDANT’S FIRST,
SECOND, THIRD, FOURTH, FIFTH, SIXTH, SEVENTH, NINTH AND
TENTH OBJECTIONS (#20), SUSTAINING DEFENDANT’S EIGHTH
OBJECTION (#20) GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT (#13), DENYING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT (#17), AND REMANDING THE CASE FOR FURTHER
PROCEEDINGS
I.

INTRODUCTION
This matter is before the Court on the parties’ Cross Motions for Summary

Judgment pertaining to Plaintiff Keren Plummer’s claim for judicial review of
Defendant Commissioner of Social Security’s denial of her application for
supplemental security income benefits. The matter was referred to Magistrate
Judge Patricia T. Morris, who issued a Report and Recommendation on May 31,
2017, recommending the Plaintiff’s Motion for Summary Judgment be granted,

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Defendant Commissioner’s Motion for Summary Judgment be denied, and
Plaintiff’s case be remanded for further proceedings. Defendant filed objections to
the Report and Recommendation on June 7, 2017.
For the reasons discussed below, the Court accepts and adopts the
Magistrate Judge’s report and recommendation and concludes that the findings of
the Commissioner are not supported by substantial evidence, and therefore entry of
remand for further proceedings is warranted.
II.

STANDARD OF REVIEW
Title 28 U.S.C. § 636 sets forth the standard of review used by the Court

when examining a report and recommendation. The Court, “shall make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). This
Court has the power to, “accept, reject or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.” Id.
The district court may affirm, modify or reverse the Commissioner’s
decision, with or without remand. See 42 U.S.C. § 405(g). Under § 405(g), the
courts have limited power regarding the Commissioner’s decision, “the findings of
the commissioner of social security as to any fact if supported by substantial
evidence, shall be conclusive.” Id. Substantial evidence is “more than a scintilla
of evidence but less than a preponderance and is such relevant evidence as a

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reasonable mind might accept as adequate to support a conclusion.” McClanahan
v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (quoting Besaw v. Sec’y
of Health and Human Servs., 966 F.2d 1028, 1030 (6th Cir. 1976).
III.

ANALYSIS
A.

Commissioner’s Mental Health Related Objections (#1 through
#5)

In her report and recommendation, the magistrate judge concludes that
substantial evidence does not support the ALJ’s conclusion with respect to the
Plaintiff’s mental health conditions. Specifically, the magistrate judge found that
the ALJ mischaracterized Plaintiff’s mental health as stable and improving over
time.

For instance, the magistrate judge concluded that the ALJ improperly

determined that Plaintiff’s low GAF scores of thirty-seven and forty-two were not
representative of her “ongoing normal functionality.” Based on this conclusion,
the ALJ afforded little weight to these low GAF scores. Reviewing the totality of
the medical records, Plaintiff’s testimony and the other record evidence, the
magistrate judge found that the ALJ erred in concluding that Plaintiff’s low GAF
scores were during a period of exacerbation and not reflective of her normal mental
functioning.
The Commissioner objects to the magistrate judge’s conclusion and argues
that “[t]he ALJ permissibly discounted the 2013 GAF scores[.]” Contrary to the

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Commissioner’s objection, the magistrate judge correctly concluded that the ALJ’s
decision to afford little weight to the Plaintiff’s low GAF scores was inconsistent
with the other record evidence.
“A GAF score is a ‘subjective rating of an individual’s overall psychological
functioning,’ which may assist an ALJ in assessing a claimant’s mental RFC.”
Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 835 (6th Cir. 2016) (quoting Kennedy
v. Astrue, 247 F. App’x 761, 766 (6th Cir. 2007)).

The Miller court noted that

courts must “take a case-by-case approach to the value of GAF scores.” Id. at 836.
The ALJ supported her decision to afford little weight to Plaintiff’s low
GAF scores based on Plaintiff’s “activities of daily living, her presentation during
the hearings, and her lack of taking prescribed medications suggest that she is
much more capable than the progress notes from the Monroe Community Mental
Health Authority suggest.”

However, the record evidence is not consistent with

these findings.
For instance, the ALJ concluded that Plaintiff “is able to care for her
children, she has no problems caring for her personal needs, and she prepares
meals daily.” However, Plaintiff completed a function report on September 23,
2013, wherein she indicated that she cared for her children with the help of her
cousin, who lived with the Plaintiff. She described going days without changing
her clothing or bathing. Her cousin had to remind her to take a shower. She

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further indicated that she prepared meals “once or twice a week[,]” but used to
“cook everyday[sic] for my family but I can’t stand to[sic] long in the kitchen.”
Moreover, Plaintiff testified at the hearing before the ALJ that she “babys[at]” her
twelve year old son once a week when her cousin was at work and described her
son as “pretty self-sufficient.”
Additionally, Plaintiff’s medical records post 2013 reveal that Plaintiff
continued to suffer from bipolar disorder, generalized anxiety disorder and
schizoaffective disorder. In October of 2014, Plaintiff was seen at the Monroe
Community Mental Health Authority and was assessed a GAF score of 43. Her
records note that she gets overwhelmed by the amount of medical appointments
she has scheduled. On December 10, 2014, Plaintiff was again seen at the Monroe
Community Mental Health Authority and was assessed a GAF score of 40. Pg ID
627.
The Commissioner incorrectly argues that the magistrate judge found that
“the ALJ had to put more weight on certain GAF scores from mid-to-late 2013.”
However, this is a misrepresentation of the magistrate judge’s conclusion. She did
not so hold, rather she acknowledged that the ALJ is not required to give any
weight to Plaintiff’s GAF scores. The magistrate judge’s findings with respect to
Plaintiff’s GAF scores center on the ALJ’s erroneous interpretation of the record
evidence to conclude that Plaintiff’s low GAF scores in 2013 were an aberration

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from her normal functioning.

As such, the Commissioner’s first objection is

overruled.
Next, the Commissioner argues that the ALJ reasonably found the GAF
scores should be afforded little weight because they were unsupported by objective
evidence. The Commissioner again mischaracterizes the magistrate judge’s report
and recommendation, which found that the ALJ misrepresented Plaintiff’s mental
health evidence. Here again, the record evidence shows that the ALJ ignored the
objective evidence in the record to reach her conclusion. “Psychiatric signs are
medically

demonstrable

phenomena

that

indicate

specific

psychological

abnormalities, e.g., abnormalities of behavior, mood, thought, memory, orientation,
development, or perception. They must also be shown by observable facts that can
be medically described and evaluated.” Bartley v. Astrue, No. 07-89-B-W, 2008
U.S. Dist. LEXIS 50209 (D. Me. Jun. 30, 2008)(citing 20 C.F.R. § 416.928(b)).
Here, the record is replete with “specific psychological abnormalities . . . of
behavior, mood, thought . . . [and] perception.” Plaintiff suffers from depression,
irritability, racing thoughts, and excessive hair pulling. She isolates herself from
others and sees images of mice in her home and also experiences auditory
hallucinations. The Commissioner’s second objection is overruled.
The Commissioner’s next objection asserts that the magistrate judge
incorrectly held that Plaintiff’s 2013 GAF scores should be carried forward. Thus,

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the Commissioner argues that the ALJ did not need to assume the 2013 GAF
scores applied in later years. The Commissioner’s third objection is yet another
mischaracterization of the magistrate judge’s report and recommendation. Nothing
in the report and recommendation suggests that the ALJ should have applied the
2013 GAF scores to subsequent years. Rather, the magistrate judge’s discussion of
Plaintiff’s mental health records in 2014 and 2015 highlighted the fact that the
ALJ’s conclusion that the 2013 GAF scores were not representative of Plaintiff’s
mental health status is not supported by substantial evidence. The Commissioner’s
third objection is overruled.
The Commissioner next objects to the magistrate judge’s conclusion that the
ALJ erred by finding Plaintiff’s failure to pursue treatment inconsistent with
disabling limitations.

Again, the Commissioner misrepresents the magistrate

judge’s conclusion. The magistrate judge found that substantial evidence does not
support the ALJ’s conclusion concerning Plaintiff’s mental health status. The
magistrate judge provided several examples of the ALJ’s mischaracterization of
the evidence, including the ALJ’s conclusion that Plaintiff’s failure to attend
treatment sessions suggested that her mental health was better than she claimed.
Contrary to the ALJ’s conclusion, Plaintiff’s failure to attend treatment sessions
was a symptom of her mental health condition. The record is replete with notes in

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Plaintiff’s medical files that she feels overwhelmed by the amount of appointments
she has scheduled.
While repeated failure to pursue treatment may be a permissible factor to
consider under certain circumstances, it is inappropriate in this instance because it
is a mischaracterization of the evidence. The cases relied on by the Commissioner
are factually distinguishable from the facts present here. See Bazzi v. Colvin, No.
14-11205, 2015 WL 1245894 (E.D. Mich. Mar. 18, 2015)(concluding that the
ALJ’s reference to the plaintiff’s lack of treatment was not improper because the
evidence of record had no explanation for the lack of treatment other than the
plaintiff’s extrapolation from the medical notes in his reply brief); Jacques v.
Comm’r of Soc. Sec., No. 12-cv-12056, 2013 WL 1843404, at *7 (E.D. Mich. Feb.
20, 2013)(concluding that lack of treatment for mental health issues was
inconsistent with a finding of disability where “there [wa]s no evidence that
Plaintiff ever sought treatment for any issues[.]”); Klein v. Comm’r of Soc. Sec.,
No. 09-13516, 2010 WL 3476441, at *3 (E.D. Mich. Sept. 3, 2010)(finding that it
was appropriate for the ALJ to take into consideration the plaintiff’s failure to seek
treatment for his depression).
In this case, the ALJ’s conclusion that Plaintiff’s failure to attend treatment
sessions evidences a lack of disabling condition was not supported by the record.
Contrary to the plaintiffs in Jacques and Klein, plaintiff sought mental health

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treatment for her bipolar disorder, depression, schizoaffective disorder and anxiety
disorder. Her treatment notes reveal that her mental health symptoms contributed
to her feeling overwhelmed by the amount of medical appointments she had
scheduled which caused her to miss some treatment sessions. The magistrate judge
was correct in finding that the ALJ mischaracterized the significance of Plaintiff’s
attendance at treatment sessions.

The Commissioner’s fourth objection is

overruled.
Lastly, the Commissioner asserts that she did argue harmless error with
regard to Plaintiff’s 2013 GAF scores. This objection is likewise overruled. The
magistrate judge correctly concluded that the ALJ’s mischaracterization of, and
selective recitation of the medical evidence, was not harmless error because the
ALJ’s erroneous conclusions with respect to Plaintiff’s mental health status were
used in creating the residual functional capacity (“RFC”) finding.
B.

Commissioner’s headache related objections (#6 and #7)

The Commissioner argues it was error for the magistrate judge to find that
the ALJ erred by finding that Plaintiff was off all medications for all conditions.
The Commissioner mischaracterizes the magistrate judge’s conclusion.

The

magistrate judge thoroughly analyzed the two interpretations that could be
assigned to the ALJ’s comment concerning headache medication for Plaintiff’s
pseudotumor cerebi condition. The magistrate judge did not definitively conclude

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that the ALJ erred with respect to this comment. Rather, the magistrate judge
noted that, on remand, the ALJ should clarify that she was discussing a lack of
medication with respect to Plaintiff’s pseudotumor cerebi condition, rather than
suggesting that Plaintiff was off of all medications for all conditions. The Court
agrees with the magistrate judge and overrules the Commissioner’s sixth objection.
Next, the Commissioner objects to the magistrate judge’s conclusion that the
ALJ’s RFC did not account for all of the Plaintiff’s supportable symptoms. The
Commissioner maintains that the ALJ’s decision “plainly shows” she was
“summarizing a treatment note” concerning Plaintiff’s need to lie down upon the
onset of a headache attributable to her pseudotumor cerebi condition, rather than
“fully accepting Plaintiff’s claim of headache frequency.” A review of the ALJ’s
decision does not “plainly show” that the ALJ rejected Plaintiff’s need to lay down
to alleviate her headache symptoms:
Despite the positive testing, the follow-up notes indicate that the
claimant’s symptoms have been fairly stable. In fact, as of January of
2015, it was noted that the claimant was now off all of her
medications for this condition; her visual acuity was 20/25 on the
right and 20/20 on the left, and her occasional headaches resolve with
lying flat. While severe, this condition does not preclude the claimant
from working. In fact, the claimant is now off all medications and the
treatment notes indicate that this condition is continuing to improve.
See Pg ID 53. It appears from this passage that the ALJ accepted all of the
treatment notes she referenced as supportive of Plaintiff’s condition, but failed to
include the need to lay flat periodically in the RFC. Yet, the vocational expert

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testified that the need to lie flat for a substantial period of the workday would
preclude competitive unskilled work. This error is not harmless. The Court will
overrule the Commissioner’s seventh objection.

C. Objection #8
The Commissioner’s eighth objection concerns the magistrate judge’s
conclusion that the ALJ’s discussion of Plaintiff’s extreme obesity was sparse and
it failed to assess how her obesity affects her other conditions. The Court tends to
agree with the Commissioner. The ALJ’s obesity discussion was adequate, and
Plaintiff never maintained that she possessed limitations as a result of her obesity.
See Nejat v. Comm’r of Soc. Sec., 359 F. App’x 574, 577 (6th Cir. 2009)(ALJ must
consider obesity, but there is no particular mode of analysis required); Casey v.
Sec’y of Health and Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993) (“Plaintiff
has the ultimate burden of establishing the existence of disability.”). While the
Court concludes that the ALJ did not err with respect to her consideration of
Plaintiff’s obesity, this does not alter the need for remand. The Commissioner’s
eighth objection is sustained.
D. Objection #9
The Commissioner also asserts that the ALJ permissibly found daily
activities, such as shopping, driving, and caring for children, inconsistent with
disabling mental illness. The Court has reviewed Plaintiff’s mental health records

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and agrees with the magistrate judge. The ALJ cherry-picked the medical records
to determine that Plaintiff’s mental condition was stable. This resulted in the
ALJ’s mischaracterization of Plaintiff’s mental health condition as previously
discussed.

The magistrate judge did not err in concluding that the ALJ

misrepresented the medical evidence.

The Commissioner’s ninth objection is

overruled.
E. Objection #10
The Commissioner’s last objection concerns the magistrate judge’s
conclusion that the ALJ’s credibility determination was problematic because she
based her determination on the Plaintiff’s “generally unpersuasive appearance and
demeanor” without further explanation. It is well settled that “blanket assertions
that the claimant is not believable will not pass muster, nor will explanations as to
credibility which are not consistent with the entire record and the weight of the
relevant evidence.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir.
2007).
Thus, contrary to the Commissioner’s argument, the magistrate judge
correctly held that the ALJ cannot state, without details and in contravention of the
medical evidence, that the Plaintiff’s statements were not credible. The ALJ must
provide sufficient explanation supporting her credibility determination.
Commissioner’s final objection is likewise overruled.

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The

IV.

CONCLUSION
Accordingly, Commissioner’s first, second, third, fourth, fifth, sixth,

seventh, ninth and tenth objections [#20] are OVERRULED. The Commissioner’s
eighth objection [#20] is SUSTAINED.

The Court hereby ACCEPTS AND

ADOPTS Magistrate Judge Patricia T. Morris’ May 31, 2017 Report and
Recommendation [#19], GRANTS Plummer’s Motion for Summary Judgment
[#13], DENIES the Commissioner’s Motion for Summary Judgment [#17], and
REMANDS this case for further proceedings under sentence four of 42 U.S.C. §
405(g).
SO ORDERED.
Dated: September 1, 2017

/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
September 1, 2017, by electronic and/or ordinary mail.
/s/ Tanya Bankston
Deputy Clerk 

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