Moon v. SSA, Commissioner of

Filing 18

OPINION AND ORDER ACCEPTING Magistrate Judge's Recommendation 15 , DENYING Plaintiff's Motion for Summary Judgment 9 , and GRANTING Defendant's Motion for Summary Judgment 14 . Signed by District Judge Laurie J. Michelson. (KJac)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALISHA MOON,
Plaintiff,
v.

Case No. 16-13732
Honorable Laurie J. Michelson
Magistrate Judge Patricia T. Morris

COMMISSION OF SOCIAL SECURITY,
Defendant.
OPINION AND ORDER
ACCEPTING MAGISTRATE JUDGE’S RECOMMENDATION [15],
DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [9], AND
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [14]
Since 2010, Alisha Moon has suffered from periodic seizures. And in September 2013, a
seizure caused her to fall from a barstool and break at least one facet of her cervical vertebrae.
The next month, Moon applied for benefits under the Social Security Act asserting that her
seizures and cervical fracture kept her from working full time. After the Commissioner of Social
Security denied Moon’s applications, she requested a hearing before an administrative law judge.
In August 2015, an ALJ ruled that Moon was not disabled under the Social Security Act. Moon’s
request for further administrative review was denied.
Moon then filed this lawsuit, asserting that the ALJ erred in a number of ways and so this
Court should either reverse the finding that she is not disabled or, at least, remand the case for
further administrative proceedings. The parties’ motions for summary judgment were referred to
Magistrate Judge Patricia T. Morris who recommends that this Court affirm the decision that Moon
is not disabled under the Social Security Act. (R. 15.)

Moon objects. (R. 16.) She asserts that the Magistrate Judge erred by concluding (1) that
the ALJ did not need to have a psychologist or psychiatrist evaluate her mental health and (2) that
the ALJ did not need to obtain an updated consultative exam after she fell and fractured her cervical
facets.
The Court takes the two objections in turn. Having examined both issues anew, see 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3), the Court will overrule Moon’s objections.
I.
A.
The Court first addresses the Commissioner’s argument that this Court does not have to
reach the merits of Moon’s first objection. (See R. 16, PID 647.) To understand the
Commissioner’s procedural argument, some more procedural history is in order.
In her summary-judgment brief, Moon argued that 20 C.F.R. § 404.1503(e) (and the
identically-worded provision for supplemental-security income, § 416.903(e)) required the ALJ to
obtain a psychologist’s or psychiatrist’s evaluation of her mental condition. (R. 9, PID 583.) As
the ALJ had ordered no such evaluation, Moon claimed that this case had to be remanded so that
evaluation could be conducted. (R. 9, PID 585.)
Magistrate Judge Morris was unpersuaded. She found that § 404.1503(e) only applied at
the initial-determination level and thus did not apply when a disability claim reached ALJ review.
(R. 15, PID 626.) She further found that even if § 404.1503(e) applied to ALJ review, that
regulation required a professional mental-health evaluation only when “there is evidence which
indicates the existence of a mental impairment.” (See R. 15, PID 626–27.) According to the
Magistrate Judge, while the record reflected “some whispers as to mental illness,” the evidence of

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mental impairment was insufficient to meet § 404.1503(e)’s “indicates the existence of”
requirement. (R. 15, PID 627.)
In her objections to this Court, Moon says that § 404.1503(e), “as well as [42 U.S.C.]
§ 421(h),” “require[d] review by a psychiatrist or psychologist whenever there is evidence which
indicates the existence of a mental impairment.” (R. 16, PID 634.) She also says that the record of
her seizure disorder and mental health is like the record in Lahoz v. Astrue, No. 09-CV-4523, 2010
WL 3310266 (E.D.N.Y. Aug. 19, 2010). (See R. 16, PID 635.) And in that case, the court suggested
that § 421(h) applied to ALJ review. See id. at *7.
The Commissioner asserts that these arguments are either procedurally improper or
otherwise do not need to be addressed on the merits. In particular, the Commissioner points out
that Moon never cited Lahoz in her summary-judgment briefing and so any argument based on
that case is “waived.” (R. 17, PID 648.) And, says the Commissioner, Moon has not objected to
the Magistrate Judge’s alternate holding (that even if § 494.1503(e) applied to ALJ review, the
evidence of mental-impairment was insufficient to meet that regulation’s threshold for a
professional evaluation). (See R. 17, PID 649.) Thus, the Commissioner implies, there is no need
for this Court to decide if Moon is correct that § 421(h) and § 404.1503(e) apply to ALJ review.
The Court elects to address Moon’s objection on the merits. See Brown v. Roe, 279 F.3d
742, 744 (9th Cir. 2002) (construing § 636(b)(1) as giving district court’s discretion to consider a
claim presented for the first time in objections); Trans-Spec Truck Serv., Inc. v. Caterpillar Inc.,
524 F.3d 315, 322 (1st Cir. 2008) (same but indicating that discretion should be exercised
“sparingly”). While this Court certainly does not condone presenting one case to a magistrate judge
and another in objections, that is not what Moon has done. Although she presents a decision not
previously cited in support of her argument, the heart of her objection is what she argued in her

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summary-judgment briefing: that the ALJ did not comply with 20 C.F.R. § 404.1503(e), “which,”
she noted in her summary-judgment brief, “tracks . . . 42 USC 421(h).” (R. 9, PID 583.) As for the
Commissioner’s suggestion that this Court need not address the merits of Moon’s objection
because she did not object to the Magistrate Judge’s alternate holding, the Court finds that Moon’s
reliance on Lahoz and comparison of her medical record to the one at issue in that case is a
challenge to the Magistrate Judge’s finding that there was insufficient evidence of a mental
impairment to meet § 404.1503(e)’s threshold for a professional mental-health evaluation. Finally,
as will now be explained, proceeding to the merits will not prejudice the Commissioner.
B.
At least on the facts of this case, neither 42 U.S.C. § 421(h) nor 20 C.F.R. § 404.1503(e)
were applicable once Moon’s case reached ALJ review.
1.
The Court begins with § 421(h). It says, “An initial determination under subsection (a),
(c), (g), or (i) shall not be made until the Commissioner of Social Security has made every
reasonable effort to ensure—in any case where there is evidence which indicates the existence of
a mental impairment, that a qualified psychiatrist or psychologist has completed the medical
portion of the case review and any applicable residual functional capacity assessment.” 42 U.S.C.
§ 421(h) (emphasis added). Thus, the introductory phrase limits subsection (h)’s “every reasonable
effort” requirement to those determinations made pursuant to § 421(a), (c), (g), and (i).
So the interpretive task becomes inspecting subsections (a), (c), (g), and (i) to see if any of
those subsections pertain to a determination by an administrative law judge. Subsections (a), (g),
and (i) plainly do not. Subsection (a) pertains to determinations by a state agency. Subsection (g)

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pertains to determinations by the Commissioner where the state agency does not make the
determination. And subsection (i) pertains to periodic review of those granted disability benefits.
Subsection (c) less obviously excludes ALJ review; unlike (a), (g), and (i), that subsection
does refer to the “review [of] a determination.” See 42 U.S.C. § 421(c). Even so, there are reasons
to think that subsection (c) does not include ALJ review as a general matter. See 42 U.S.C.
§ 421(d); 20 C.F.R. § 404.907. But this Court need not make a categorical pronouncement. In this
case, Moon requested a hearing before an ALJ following the Commissioner’s determination. (See
R. 7, PID 128.) And this request was apparently pursuant to § 421(d)—not § 421(c)—for it is
subsection (d) that permits claimants to seek a “hearing” following a “determination under
subsection (a), (b), (c), or (g).” Indeed, the accompanying regulations provide that if a claimant is
“dissatisfied with the initial determination” the claimant may seek reconsideration (which consists
of a case review) and then a hearing before an ALJ, or, in limited circumstances, skip to ALJ
review. See 20 C.F.R. §§ 404.907; 404.913; 404.929, 404.930; Schweiker v. Chilicky, 487 U.S.
412, 424 (1988) (“[A] claimant is entitled to de novo reconsideration by the state agency, and
additional evidence may be presented at that time. §§ 404.907–404.922. If the claimant is
dissatisfied with the state agency’s decision, review may then be had by the Secretary of Health
and Human Services, acting through a federal ALJ.” (emphasis added)). Thus, in this case at least,
it appears that ALJ review was not pursuant to § 421(c). See Russell v. Astrue, 742 F. Supp. 2d
1355, 1372 n.15 (N.D. Ga. 2010) (“The Commissioner was reviewing Plaintiff’s case because
Plaintiff requested this review pursuant to 42 U.S.C. § 421(d), not as part of the Commissioner’s
statutory oversight authority outlined in § 421(c). As a result, § 421(h) does not govern the ALJ’s
conduct by way of § 421(c).”).

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As the ALJ’s review in this case was not “[a]n initial determination under subsection (a),
(c), (g), or (i),” § 421(h) did not apply to the proceedings before the ALJ. It follows that the ALJ
did not violate that statutory provision in not having a psychiatrist or psychologist evaluate Moon’s
mental health.
This conclusion is accord with numerous others. See Plummer v. Apfel, 186 F.3d 422, 433
(3d Cir. 1999); Cobb v. Berryhill, No. 4:17-CV-00106, 2017 WL 6492078, at *5 (N.D. Tex. Nov.
29, 2017), report and recommendation adopted, 2017 WL 6493237 (Dec. 15, 2017); Chretien v.
Berryhill, No. 1:16-CV-00549, 2017 WL 4613196, at *4 (D. Me. Oct. 15, 2017); Westphal v.
Berryhill, No. 4:16-CV-00059, 2017 WL 2172021, at *7 (N.D. Ala. May 17, 2017); Rodgers v.
Colvin, No. 3:15-CV-1449, 2016 WL 4432678, at *9 (D. Conn. Aug. 17, 2016); Mathis-Caldwell
v. Comm'r of Soc. Sec., No. 1:15-CV-532, 2016 WL 2731021, at *3 (W.D. Mich. May 11, 2016);
McKinney v. Colvin, No. 3:13-CV-900, 2014 WL 652948, at *2 (S.D. Miss. Feb. 19, 2014); Boston
v. Astrue, No. 10-CV-00250, 2011 WL 2491120, at *7 (D.N.H. June 22, 2011); Russell v. Astrue,
742 F. Supp. 2d 1355, 1372 n.15 (N.D. Ga. 2010); Smith v. Comm'r of Soc. Sec., No. 1:08-CV152, 2009 WL 385543, at *4 (W.D. Mich. Jan. 28, 2009).
And while this Court did come across a few decisions assuming § 421(h) applied at the
ALJ level, these courts did not engage in any statutory analysis before making that assumption.
See McCall v. Bowen, 846 F.2d 1317, 1320 (11th Cir. 1988); Guthrie v. Astrue, No. 2:11-CV3081, 2013 WL 5519512, at *14 (N.D. Ala. Sept. 30, 2013); Clawson v. Astrue, No. 10-CV-377,
2011 WL 4055403, at *6 (N.D.N.Y. July 27, 2011), report and recommendation adopted, 2011
WL 4055379 (Sept. 12, 2011).
But what about Lahoz, the case upon which Moon relies? Lahoz also failed to discuss or
account for the introductory clause of § 421(h), i.e., “An initial determination under subsection

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(a), (c), (g), or (i) shall not be made until . . .” See 2010 WL 3310266, at *6. Thus, this Court finds
the decision unpersuasive. Moreover, the Lahoz court did not specifically direct the ALJ to order
a mental-health exam on remand. The court instead more generally directed the ALJ to “develop
the record further by gathering more evidence as to Lahoz’s mental condition.” Id. at *7.
2.
That leaves 20 C.F.R. § 404.1503(e) (and the parallel provision, § 416.093(e)). Section
404.1503(e) appears to have been an implementing regulation of § 421(h). See Hudson v. Comm’r
of Soc. Sec., No. 16-10032, 2017 WL 1030216, at *3 (E.D. Mich. Feb. 22, 2017), report and
recommendation adopted, 2017 WL 1021072 (Mar. 16, 2017); Rodgers, 2016 WL 4432678, at *9;
Lopez v. Comm’r of Soc. Sec., No. 8:14-CV-600, 2015 WL 12844407, at *6 (M.D. Fla. Sept. 25,
2015). (“Have been” because after the ALJ’s August 2015 decision in this case, the regulations
pertaining to consultative exams were revised.) As an implementing regulation, its language
largely tracked that of § 421(h):
(e) Initial determinations for mental impairments. An initial determination by a
State agency or the Social Security Administration that you are not disabled (or a
Social Security Administration review of a State agency’s initial determination), in
any case where there is evidence which indicates the existence of a mental
impairment, will be made only after every reasonable effort has been made to
ensure that a qualified psychiatrist or psychologist has completed the medical
portion of the case review and any applicable residual functional capacity
assessment.
20 C.F.R. § 404.1503(e) (emphasis added); accord 20 C.F.R. § 416.903(e). And because the
language tracked § 421(h), the Court sees no reason to interpret it broader that § 421(h).
In reaching this conclusion, the Court has not overlooked the parenthetical in the regulation
(“or a Social Security Administration review of a State agency’s initial determination”). This
language apparently accounted for the fact that § 421(h) includes determinations under § 421(c)

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as “initial determination[s].” See Rodgers, 2016 WL 4432678, at *9. But, as discussed, it appears
that the ALJ’s review in this case was pursuant to § 421(d)—not § 421(c).
Moreover, as with § 421(h), a number of courts have held that § 404.1503(e) does not apply
to ALJ review. Cobb, 2017 WL 6492078, at *5; Rodgers, 2016 WL 4432678, at *9; Lopez, 2015
WL 12844407, at *6.
* * *
To sum up, upon de novo review, the Court finds that neither § 421(h) nor § 404.1503(e)
(nor the identically-worded § 416.903(e)) required the ALJ to have a psychologist or psychiatrist
evaluate Moon’s mental condition. Accordingly, Moon’s first objection is overruled.1
II.
Moon’s second objection is similar to her first: she claims that the ALJ should have ordered
a medical consultant to reassess her physical capabilities. Although a physician reviewed Moon’s
medical file and assessed her physical residual functional capacity, Moon believes that the
assessment was before she fell and fractured facets of her cervical vertebrae. (See R. 16, PID 636;
see also R. 9, PID 588 (asserting that fracture occurred “after Plaintiff’s claim was already
denied”).) Thus, argues Moon, the ALJ needed to order a “second examination.” (R. 16, PID 636.)
This objection is based on a misreading of the record and a misreading of Magistrate Judge
Morris’ report. Dr. Quan Nguyen assessed Moon’s residual functional capacity after reviewing
Moon’s file. And in making his assessment, he wrote: “There is [history] of [right] facet fracture
at C6-7 level, treated nonsurgically with [a] collar. Due to the nature of this type of fracture, further

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This is not to say that there were no regulations that governed the ALJ’s assessment of
Moon’s mental health. There were. And they suggest that, in some circumstances, an ALJ might
need an evaluation by a mental-health professional to accurately determine disability. See 20
C.F.R. §§ 404.1519a, 404.1520a. But Moon has never argued that the ALJ violated these
regulations.
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development such as any [follow-up] visit(s) and CE [consultative exam] would not be necessary.”
(R. 7, PID 95; see also R. 7, PID 104, 113.) Thus, Dr. Nguyen assessed Moon’s residual functional
capacity after she fell and fractured the facets in her neck. And the Magistrate Judge said as much:
“Dr. Nguyen did have the opportunity to consider documentation of Moon’s C6-C7 fracture.” (R.
15, PID 628.) Thus, it appears that Moon’s objection rests on a faulty premise: that a physician
assessed her residual functional capacity before her fracture and therefore did not incorporate that
injury into his assessment.
And even if this Court were to look past Moon’s misreading of the record, and were to
construe her argument as simply asserting that the ALJ should have had a physician examine her
and opine on her residual functional capacity before making the ultimate disability determination,
this Court would not remand the case to the Commissioner. The regulations gave the ALJ
discretion to decide whether to order an examination of Moon. See 20 C.F.R. § 404.1519a(b)
(2015) (stating that a change in condition where the current severity is not established is a situation
where a consultative examination “might” be purchased); 20 C.F.R. § 404.1545(a)(3) (2015)
(providing that, before assessing residual functional capacity at step four, “we are responsible for
developing your complete medical history, including arranging for a consultative examination(s)
if necessary” (emphasis added)). And Moon has made no developed argument that the medical
records associated with her cervical fracture were either insufficient or too technical for a nonphysician (such as an administrative law judge) to assess her residual functional capacity. As
noted, Dr. Nguyen thought that given the type of fracture, “further development such as . . . [a
consultative exam] would not be necessary.” (R. 7, PID 95.) Moreover, Moon, who was
represented by counsel at the ALJ level, could have sought out her own physical exam or functional
capacity assessment following her fall. See 20 C.F.R. § 404.1545(a)(3) (“In general, you are

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responsible for providing the evidence we will use to make a finding about your residual functional
capacity.”).
Moon’s second objection is overruled.
III.
The Court has conducted de novo review of the issues presented in Moon’s objections. This
Court has no obligation to review the Magistrate Judge’s other findings. See Thomas v. Arn, 474
U.S. 140, 144 (1985); United States v. Walters, 638 F.2d 947, 949–50 (6th Cir. 1981); Garrison v.
Equifax Info. Servs., LLC, No. 10-13990, 2012 WL 1278044, at *8 (E.D. Mich. Apr. 16, 2012).
Accordingly, the Court ACCEPTS the Magistrate Judge’s recommendation (R. 15), DENIES
Moon’s motion for summary judgment (R. 9), and GRANTS the Commissioner’s (R. 14).
SO ORDERED.
s/Laurie J. Michelson
LAURIE J. MICHELSON
U.S. DISTRICT JUDGE

Dated: March 21, 2018

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record
and any unrepresented parties via the Court=s ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on March 21, 2018.
s/Keisha Jackson
Case Manager

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