Pangburn v. Commissioner of Social Security Administration

Filing 18

ORDER denying 13 Motion for Summary Judgment; granting 15 Motion for Summary Judgment; adopting 16 Report and Recommendation. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RICKY PANGBURN,

Case No. 16-13393
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

Plaintiff,
v.

U.S. MAGISTRATE JUDGE
R. STEVEN WHALEN

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
/

ORDER ADOPTING REPORT AND RECOMMENDATION [16]; OVERRULING
PLAINTIFF’S OBJECTION [17]; DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT [13]; AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT [15]
Plaintiff Ricky Pangburn 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. 13] on May 8, 2017.
Defendant filed a Motion for Summary Judgment [15] on June 15, 2017.
On November 7, 2017, the Magistrate Judge issued a Report and
Recommendation [16] recommending that the Court grant Defendant’s Motion for
Summary Judgment and deny Plaintiff’s Motion for Summary Judgment. Plaintiff
timely filed his Objection on November 21, 2017. [17].
For the reasons stated below, the Court ADOPTS the Report and
Recommendation [16]. Plaintiff’s Objection to the Report and Recommendation
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[17] is OVERRULED. Plaintiff’s Motion for Summary Judgment [13] is
DENIED. Defendant’s Motion for Summary Judgment [15] is GRANTED.
FACTUAL BACKGROUND
The R&R summarized the record as follows:
PROCEDURAL HISTORY
On August 26, 2013, Plaintiff filed an application for DIB, alleging a
disability onset date of July 17, 2013 (Tr. 124). After the initial denial
of the claim, Plaintiff filed a request for an administrative hearing,
held in Detroit, Michigan before Administrative Law Judge (“ALJ”)
Ena Weathers (Tr. 26). Plaintiff, represented by Frank Partipilo,
testified, as did Vocational Expert (“VE”) Pauline Pegram (Tr. 31-46,
46-53). On July 2, 2015, ALJ Weathers found that Plaintiff not
disabled (Tr. 12-22). On August 4, 2016, the Appeals Council denied
review (Tr. 3-7). Plaintiff filed for judicial review in this Court on
September 19, 2016.
BACKGROUND FACTS
Plaintiff, born June 20, 1952, was 63 when the ALJ issued her
decision (Tr. 22, 124). He completed 12th grade and worked as a
programmer from February, 1982 to June, 2013 (Tr. 158). He alleges
disability due to arthritis with related pain and swelling (Tr. 156).
A. Plaintiff’s Testimony
Plaintiff offered the following testimony:
He stood 5' 5" and weighed 201 pounds (Tr. 31). Although formerly
right-handed, he was currently left-handed due to shoulder problems
(Tr. 31). He was married and his youngest child was 32 (Tr. 32). He
and his wife supported themselves with two “very small” retirement
pensions and wife’s Social Security Disability payments (Tr. 32). He
held a valid driver’s license and drove short distances twice a week
(Tr. 32). His doctor had not imposed driving restrictions (Tr. 33). He
did not experience problems reading or writing (Tr. 33). He served in
the Army but was assigned to “light duty” after an accident (Tr. 34).
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Plaintiff stopped working in July, 2013 when his job was terminated
(Tr. 34). He had not sought other work due to his inability to sit for
any meaningful period, the need to use a cane, a limp, and the need to
elevate his leg three to four hours a day to alleviate pain and swelling
(Tr. 34). His dismissal was “partially” attributable to his need for a
cane (Tr. 35). He currently received treatment for hypertension and
sporadic treatment for leg problems (Tr. 35). He took only Aleve and
Advil for relief of swelling and body pain due to medication side
effects of stomach ulceration from prescription pain medication (Tr.
35). He had not undergone surgery, attended physical therapy, or
sought emergency treatment for the leg condition in “a long time” (Tr.
36). On a scale of one to ten, he experienced level “seven” to “nine”
pain with the use of over-the-counter pain medication (Tr. 36). His
doctor told him that his condition could not be improved (Tr. 37). He
was unable to sit or stand for more than five to ten minutes and even
with the use of a cane was unable to walk more than 100 yards (Tr.
37). He was able to lift up to 15 pounds with his left hand but was
unable to perform any lifting on the right (Tr. 38).
Upon arising at around 6:30 a.m., he let out the dog, walked to the
mailbox, had coffee, sat down, and had a brief walk around his yard
(Tr. 38). He spent four to five hours each day in a reclining chair (Tr.
38). His housework was limited to doing dishes and tidying up (Tr.
39). As a result of nighttime sleep interruptions he took two afternoon
naps (Tr. 39). He was able to dress himself but was “not good” at
grocery shopping (Tr. 40). He accompanied his wife on her shopping
trips (Tr. 39). He seldom used a computer due to his right arm falling
asleep (Tr. 40).
In response to questioning by his attorney, Plaintiff reported that he
used a cane due to right-sided weakness and because he was prone to
stumbling (Tr. 40). His lower extremity condition had worsened since
July, 2013 (Tr. 40). In his former work, Plaintiff spent around 50
percent of the workday moving machines (Tr. 41). The “programer”
position consisted of both programming work and lifting up to 60
pounds (Tr. 42). During the workday, Plaintiff would sometimes
“hide” from his supervisors to avoid heavy lifting (Tr. 42-43). His
lower extremity pain was relieved by elevating his legs to heart level
(Tr. 43). He was required to wear compression socks due to leg
swelling (Tr. 43). At present, he spent up to six hours a day in a
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recliner with his leg elevated (Tr. 44). Due to right shoulder pain, he
was unable to do any right-sided overhead reaching (Tr. 44). His right
arm fell asleep anywhere between five and thirty minutes after being
after being [sic] in one position (Tr. 44). On a “bad” days [sic]
occurring twice a week, he did not get dressed and spent the entire day
in a couch or chair (Tr. 45).
B. Medical Evidence
1. Records Relating to Plaintiff’s Treatment
In August, 1978, Max Karl Newman, M.D. noted that as a result of a
1973 vehicle accident, Plaintiff experienced shortening of the right leg
with atrophy and sensory peroneal neuropathy and motor neuropathy
(Tr. 235).
March, 2012 imaging studies taken following a “slip and fall” at work
showed “minimal degernerative joint disease” of the right knee and
right little finger (Tr. 206). Imaging studies showed “mild to moderate
degenerative arthritic changes” to the right shoulder (Tr. 206). May,
2013 treating records by Scott McPhilimy, D.O. note an evaluation for
hyperlipidemia and hypertension (Tr. 214). Plaintiff reported that he
walked approximately one mile each night with his daughter and
granddaughters (Tr. 214). Plaintiff reported symptoms of anxiety,
noting that he did “pretty well” taking Xanax on an as-needed basis
(Tr. 214). Dr. McPhilimy noted the conditions of “pain in limb” and
“chronic pain/traumatic injury to leg” (Tr. 215). He advised Plaintiff
to continue to exercise on a daily basis for weight loss and
cardiovascular fitness (Tr. 215). He gave Plaintiff a handicap placard
(Tr. 207, 215).
Dr. McPhilimy completed an assessment of Plaintiff’s work-related
activities, finding that Plaintiff was precluded from all ladder
climbing; could stoop and crouch on only a rare basis; climb stairs
occasionally; and twist frequently (Tr. 209). He found that due to
Plaintiff’s physical limitations, he would be expected to miss work
about four days each month (Tr. 209). He found that Plaintiff
experienced “distractability” and concentrational problems due to pain
and right leg weakness, numbness, and sensitivity (Tr. 209, 211). Dr.
McPhilimy noted that Plaintiff “was deemed unfit for any physical
endurance by VA . . .” (Tr. 209). He found that Plaintiff was unable to
sit, stand, or walk for even two hours in an eight-hour workday and
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would be required to stop work to walk every 15-20 minutes for up to
10 minutes at a time (Tr. 210). He found that Plaintiff would be
required to elevate his left foot above heart level for 75 percent of the
workday and was unable to walk for less than one block (Tr. 210211). Dr. McPhilimy found that Plaintiff was further limited by
concentrational problems due to poor sleep hygiene and the
medication side effects of nausea and “GI problems”2 (Tr. 212).
Dr. McPhilimy’s August, 2013 treating records note that Plaintiff had
recently been terminated “as a result of economic downsizing” (Tr.
201). Plaintiff reported that his “lack of concentration” due to pain
“had led to safety problems” at work (Tr. 201). Dr. McPhilimy noted
that Plaintiff was currently taking only Tylenol, Aleve, and Ibuprofen
due to the side effect of “gastric distress” while taking stronger pain
medication (Tr. 201). Dr. McPhilimy noted “mild to moderate edema”
despite Plaintiff’s use of a support stocking (Tr. 202). Plaintiff
declined a recommendation for prescribed pain medication due to its
effect on his ability to drive and declined an offer for an orthopedic
surgical evaluation (Tr. 203).
May, 2014 records by Dr. McPhilmy note Plaintiff’s report of
“increasing pain and difficulty with ambulation” (Tr. 239). Plaintiff
reported that he had fallen recently but had not sustained injuries (Tr.
239). He reported that he was awaiting determinations “on disability
through the state and through the VA” (Tr. 239). November, 2014
records by Dr. McPhilimy do not reference Plaintiff’s leg or shoulder
conditions (Tr. 242). The same month, Dr. McPhilimy composed a
letter on behalf of the Plaintiff’s application for VA benefits, opining
that Plaintiff’s right leg condition (resulting from the 1973 accident
during Plaintiff’s years of military service) worsened in the summer of
2013 (Tr. 246-249).
2. Non-Treating Sources
In October, 2013, Ron Marshall, PH.D. performed a non-examining
assessment of the records pertaining to Plaintiff’s psychological
limitations on behalf of the SSA, finding only mild limitation in
activities of daily living, social functioning, and concentration,
persistence, or pace (Tr. 61-62).
In December, 2013, Harold Nims, D.O. performed a consultative
physical examination, noting Plaintiff’s report of a 1973 accident in
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which he sustained compound fractures of the right leg (Tr. (Tr. 216).
Plaintiff reported ongoing right leg pain, swelling, and balance
problems resulting in twenty to thirty falls in the past year (Tr. 216).
He reported that he was required to elevate his right leg five to eight
times each day due to swelling (Tr. 216). In addition to the lower
extremity problems, Plaintiff alleged the inability to reach overhead
on the right side due to moderate right shoulder pain (Tr. 216). He
also reported chronic anxiety for which he used Xanax on an asneeded basis and the condition of uncontrolled hypertension (Tr. 216).
Plaintiff stated that he was unable to walk more than half a block but
was able to sit and stand without problems aside from swelling of the
right lower extremity (Tr. 217). He reported that he prepared light
meals, did light housecleaning, and shopped “when necessary” (Tr.
217).
Dr. Nims observed a “moderately antalgic gait” without unsteadiness
or lurching (Tr. 218). He noted 4/5 right upper extremity strength and
5/5 of the left upper extremity (Tr. 219). He noted no atrophy (Tr.
219). In the lower extremities, Dr. Nims observed 4/5 strength on the
right and 5/5 on the left (Tr. 219). Plaintiff was able to squat and bend
without difficulty (Tr. 220). Dr. Nims concluded that Plaintiff was
capable of “nonstrenuous type activities performed in a sedentary type
setting” with “the ability to elevate his right leg from time to time
during the workday” (Tr. 220).
Later the same month, Eric VanderHaagen, D.O. performed a nonexamining assessment of the Plaintiff’s physical conditions, finding
the ability to lift a maximum of 10 pounds, sit for six hours a day and
stand or walk for two, and perform limited pushing and pulling in the
right-sided upper and lower extremities (Tr. 63-64). Dr.
VanderHaagen found Plaintiff could climb ramps and stairs, balance,
and stoop frequently; kneel, crouch, and crawl occasionally; and never
climb ladders, ropes, or scaffolds (Tr. 64). He found that Plaintiff was
limited to occasional overhead reaching with the right upper
extremities (Tr. 65). Dr. VanderHaagen found that Plaintiff could do
his past relevant work as a programmer as actually performed (Tr.
65).
C. Vocational Expert Testimony
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Citing the Dictionary of Occupational Titles (“DOT”), VE Pegram
classified Plaintiff’s previous work as a tool programmer (combined
with the job requirements of a drafter) as skilled and sedentary
(exertionally “light” as described in the application for benefits and as
exertionally “heavy” in Plaintiff’s testimony)3 (Tr. 47-48). The ALJ
then posed the following question to the VE, describing an individual
of Plaintiff’s age, educational level, and work experience:
[A]ssume a hypothetical individual with the past jobs that you
just described. Further assume that this individual is limited to
light work and is unable to climb ladders, ropes, or scaffolds;
can occasionally push and pull with the right lower extremity
and right upper extremity; must avoid concentrated exposure to
humidity and extreme cold; have occasional overhead reach
bilaterally. Would this hypothetical person be able to perform
their past work? (Tr. 48).
The VE replied that the above-described individual would be able to
perform Plaintiff’s past relevant work as described in Plaintiff’s
application for benefits and as described in the DOT, modified by her
own professional experience to the extent that she found that the
overhead reaching limitations would not preclude the past relevant
work (Tr. 49). She found that the need to change positions from
standing to sitting for “one to two minutes every hour or two hours”
and the use of a cane to ambulate on uneven surfaces would not
change her testimony (Tr. 49). The VE testified that if the same
individual were additionally limited by the need to be off task 25
percent of the workday due to “pain, fatigue, and the effects of
medication,” the individual would be unable to perform Plaintiff’s
former work or any other competitive work (Tr. 50).
In response to questioning by Plaintiff’s attorney, the VE testified that
the need to be off-task for more than 15 percent of the workday,
elevate the legs above heart level for 75 percent of each workday,
miss four days of work each month, or, the inability to sit, stand, or
walk for only two hours in an eight-hour workday would preclude all
work (Tr. 51-52). The VE testified that the inability to work around
“moving . . . and dangerous machinery” on an even occasional basis
would eliminate Plaintiff’s past relevant work as “actually performed”
(Tr. 53).
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D. The ALJ’s Decision
Citing the medical records, the ALJ determined that Plaintiff
experienced the severe impairments of “neuritis and pain of the right
lower extremity; reflex sympathetic dystrophy; chronic right shoulder
pain due to osteoarthritis; and obesity” but that none of the conditions
met or medically equaled an impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (Tr. 15). The ALJ found that although Plaintiff
used anti-anxiety medication (on an as needed basis) his
psychological limitations were “mild” (Tr. 15).
The ALJ found that Plaintiff retained the residual functional capacity
(“RFC”) for light work with the following additional limitations:
Claimant is unable to climb ladders, ropes or scaffolds.
Claimant’s right upper and lower extremities are restricted to
occasional pushing and pulling. Clamant must avoid
concentrated exposure to humidity and extreme cold. Clamant
is limited bilaterally to occasional overhead reaching. Claimant
must be able to change from standing to seated position or vice
versa for one to two minutes every hour to two hours without
interference with work product. Claimant requires the use of a
cane to ambulate on uneven surfaces (Tr. 16).
Citing the VE’s testimony, the ALJ found that Plaintiff could perform
his past relevant work including the job duties of programmer and
drafter as generally performed in the national economy and as actually
performed (Tr. 21, 49).
The ALJ discounted the allegations of disability. The ALJ noted that
Plaintiff’s testimony that he was required to lift up to 60 pounds at his
former job was contradicted by his report made at the time of the DIB
application (Tr. 21). The ALJ accorded only “partial weight” to Dr.
McPhilimy’s assessment on the basis that it “lack[ed] support in
contemporaneous treatment records” and the “gross inconsistencies”
between the assessment and Dr. McPhilimy’s own treatment records
(Tr. 20). The ALJ noted that Plaintiff’s allegations of disability were
undermined by Plaintiff’s ability to walk a mile each night with his
daughter and granddaughters (Tr. 18). The ALJ noted that despite the
1973 accident, Plaintiff was able to work for many years (Tr. 20). She
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cited Plaintiff’s testimony that his job termination resulted at least in
part from “economic and industry reasons” (Tr. 20).
STANDARD OF REVIEW
The Court reviews “specific written objections” to a Magistrate Judge’s
Report and Recommendation on a dispositive motion de novo. See 28 U.S.C.
§636(b)(1)(c). Vague, generalized objections are not entitled to a de novo review.
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. “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). Similarly, an objection that simply disagrees with the
Magistrate Judge’s conclusion “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).
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
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
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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). 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 raises the following Objections to the R&R:
 The ALJ’s opinion fails to address whether Plaintiff would need to
elevate his right leg.
 There is no medical evidence to support the conclusion that Plaintiff
was able to work at the light level.
 The ALJ’s light RFC determination is based solely on her own
opinion and is not based upon substantial evidence.
 There’s no explanation as to why Dr. Nims’ findings and limitations
were not followed.
 There’s no testimony as to how the additional limitations, as well as
the need to elevate Plaintiff’s right leg, would affect the universe of
sedentary jobs.
 The R&R incorrectly notes that the consultative examiner’s opinions
were rejected by the ALJ when she noted that said findings were
based primarily on Plaintiff’s subjective complaints and Dr.
McPhilimy’s blanket opinions. In fact, the ALJ never rejected the
consultative examiner’s findings.
The first four objections are improper because they simply reiterate the
arguments presented to the Magistrate Judge in the summary judgment briefing.

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See Aldrich, 327 F.Supp. 2d at 747. Accordingly, they are overruled. The
remaining two objections are discussed more in depth below.
I.

The questions posed by the ALJ to the Vocational Expert
This objection is unclear. Plaintiff maintains that the record lacks
testimony as to how the additional limitations noted by the ALJ, as well as
the need to elevate the right leg would effect [sic] the universe of sedentary
jobs. These questions (regarding sedentary jobs or of need to elevate the legs
in sedentary capacity) were never provided to the Vocational expert by the
ALJ.

(Pl.’s Obj. at 4-5).
Plaintiff’s objection is vague and difficult to understand. He argues that
certain questions “were never provided to” the VE, but fails to articulate exactly
what those questions are and how they caused him harm. See Shinseki v. Sanders,
556 U.S. 396, 409 (2009) (“[T]he burden of showing that an error is harmful
normally falls upon the party attacking the agency’s determination.”).
It appears that Plaintiff takes issue with the information and hypotheticals
provided by the ALJ to the Vocational Expert. To that extent, the Sixth Circuit has
held that “[s]ubstantial evidence may be produced through reliance on the
testimony of a vocational expert in response to a hypothetical question, but only if
the question accurately portrays [the claimant’s] individual physical and mental
impairments.” Varley v. Secretary of Health & Human Services, 820 F.2d 777, 779
(6th Cir. 1987) (quoting Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984)).
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Plaintiff does not explain how the ALJ’s questioning and hypotheticals were
faulty. The Court finds that Plaintiff has forfeited whatever argument he intended
to present for failure to develop it. See, e.g., Hayward v. Cleveland Clinic Found.,
759 F.3d 601, 618 n.9 (6th Cir. 2014) (citing McPherson v. Kelsey, 125 F.3d 989,
995–96 (6th Cir. 1997)). Furthermore, as the Magistrate Judge outlined in the
R&R, substantial evidence supported the ALJ’s conclusion as to Plaintiff’s work
abilities and limitations. The opinion of Dr. McPhilimy, Plaintiff’s treating doctor,
was correctly accorded only partial weight because it “lack[ed] support in
contemporaneous treatment records” and “gross inconsistencies” existed between
his opinion and his treatment records. (Tr. 20). Furthermore, Dr. McPhilimy’s
November 2014 treatment records made no reference to lower extremity problems,
in contrast with Plaintiff’s testimony that he had to keep his right leg elevated for
long periods of time. Id. In addition, the ALJ’s implicit rejection of Dr. Nims’
findings was justified. For example, although Dr. Nims opined that Plaintiff
suffered mild lower right extremity weakness, Plaintiff’s right leg showed no signs
of “tenderness, redness, warmth, swelling, fluid, laxity, or crepitus.” (Tr. 19).
In sum, to the extent that Plaintiff challenges the ALJ’s reliance on the
vocational expert’s testimony, the Objection is OVERRULED.
II.

The ALJ’s treatment of the consultative examiner’s findings
Plaintiff next claims that
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The Report & Recommendation notes that the Consultative examiner’s
opinions were rejected by the ALJ when she noted that said findings were
based “primarily on Plaintiff’s subjective complaints and . . . Dr.
McPhilimy’s blanket opinions (TR 20)” (R&R 13). This is not correct.
(Pl.’s Obj. at 6).
Again, Plaintiff fails to explain how the Magistrate Judge’s alleged error
caused him harm. See Shinseki, 556 U.S. at 409.
Plaintiff further claims that “there has never been an explanation as to why
Dr. Nims’ findings and limitations were not followed.” (Pl.’s Obj. at 7). However,
An ALJ can consider all the evidence without directly addressing in his
written decision every piece of evidence submitted by a party. Nor must an
ALJ make explicit credibility findings as to each bit of conflicting
testimony, so long as his factual findings as a whole show that he implicitly
resolved such conflicts.
Local Defense Systems-Akron v. NLRB, 200 F.3d 436, 453 (6th Cir. 1999) (internal
quotations omitted).
That the ALJ did not explain or spell out every credibility finding does not
change the fact that she carefully weighed all of the evidence in reaching the
conclusion that Plaintiff is not disabled. Accordingly, Plaintiff’s Objection is
OVERRULED.
CONCLUSION
For the reasons stated above,

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IT IS ORDERED that the Report and Recommendation [16] is ADOPTED
and entered as the findings and conclusions of the Court. Plaintiff’s Objection to
the Report and Recommendation [17] is OVERRULED.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary
Judgment [15] is GRANTED. Plaintiff’s Motion for Summary Judgment [13] is
DENIED.
SO ORDERED.

Dated: February 21, 2018

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

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