O'Leary-Bell v. Social Security, Commissioner of

Filing 23

ORDER adopting in part 20 Report and Recommendation; denying 16 Motion for Summary Judgment; granting 19 Motion for Summary Judgment. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KELLY O’LEARY-BELL,

Case No. 16-13864
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,

U.S. MAGISTRATE JUDGE
PATRICIA T. MORRIS

Defendant.
/
ORDER ADOPTING IN PART REPORT & RECOMMENDATION [20]; OVERRULING
PLAINTIFF’S OBJECTIONS [21]; GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT [19]; DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT [16]
Plaintiff Kelly O’Leary-Bell seeks judicial review of the decision of an
Administrative Law Judge (“ALJ”) denying her application for disability benefits.
Plaintiff filed a Motion for Summary Judgment [16] on May 30, 2017. Defendant
filed a Motion for Summary Judgment [19] on June 15, 2017. On August 23, 2017,
the Magistrate Judge issued a Report and Recommendation [20] (“R&R”)
recommending that the Court grant Defendant’s Motion and deny Plaintiff’s
Motion. Plaintiff filed Objections to the R&R [21] on September 6, 2017.
Defendant filed its Response [22] on September 19, 2017.
For the reasons stated below, the Court ADOPTS in part the R&R [20].
Plaintiff’s Objections to the R&R [21] are OVERRULED. Defendant’s Motion
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for Summary Judgment [19] is GRANTED. Plaintiff’s Motion for Summary
Judgment [16] is DENIED.
FACTUAL BACKGROUND
The Magistrate Judge summarized the record as follows:
On September 24, 2013, O’Leary-Bell filed
applications for DIB, alleging a disability onset date of
May 24, 2012. (Tr. 132-45). The Commissioner denied
her claim. (Tr. 70-84). O’Leary-Bell then requested a
hearing before an Administrative Law Judge (“ALJ”),
which occurred on July 16, 2015 before ALJ JoErin
O’Leary. (Tr. 32-69). The ALJ’s written decision, issued
September 24, 2015, found O’Leary-Bell not disabled.
(Tr. 15-31). On September 15, 2016, the Appeals Council
denied review, (Tr. 1-7), and O’Leary-Bell filed for
judicial review of that final decision on October 31,
2016. (Doc. 1) . . . .
D.

ALJ Findings
Following the five-step sequential analysis, the ALJ
found O’Leary-Bell not disabled under the Act. (Tr. 1827). At Step One, the ALJ found that O’Leary-Bell last
met the insured status requirements through December
31, 2017, and had not engaged in substantial gainful
activity since May 24, 2012, her application date. (Tr.
20). At Step Two, the ALJ concluded that the following
impairments qualified as severe: affective disorders,
anxiety disorders, degenerative disc disorder, and
obesity. (Id.). The ALJ also decided, however, that
none of these met or medically equaled a listed
impairment at Step Three. (Tr. 21-22) (emphasis
added). Thereafter, the ALJ found that O’Leary-Bell had
the residual functional capacity (“RFC”) to perform light
work, except . . . .

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At Step Four, the ALJ found O’Leary-Bell incapable of
performing her past relevant work. (Tr. 26). But
proceeding to Step Five, the ALJ determined that there
are jobs that exist in significant numbers in the national
economy that O’Leary-Bell can perform. (Tr. 26-27).
E. Administrative Record . . . .
Application Reports and Administrative
Hearing

2.

i.

Function Report

O’Leary-Bell filled out a Function Report on October 14,
2013, which appears in the administrative record. (Tr.
190-202). Describing her conditions, she notes “[m]y
illness makes it impossible for me to work. I have issues
with [visibility], dizziness, drowsiness, and I have no
control over my emotions. I cry all the time.” (Tr. 190).
In a typical day, “I try to do the babies. I rest a lot and I
have my . . . son to take care of.” (Tr. 191). As a result of
her conditions, she could only sleep for approximately
four hours. (Id.). They do not affect her ability to attend
to personal care (e.g., dressing, bathing, shaving, using
the toilet, etc.). (Id.).
Medication reduced her appetite, and she would
“[u]sually eat sandwiches” on a “daily” basis. (Tr. 192).
She accomplished “basic household chores” twice per
week, though she required reminders. (Id.). To get
around, she rode in a car, but she also specified that “I do
not go outside. I do not want to see people.” (Tr. 193).
Nor did she “like being alone” because she was “too
anxious.” (Id.). She drove only when necessary. (Id.).
She sometimes shopped online for thirty- to sixty-minute
increments. (Id.). Despite her limitations, she retained the
capacity to pay bills, count change, handle a savings
account, and use a checkbook/money orders. (Id.).

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Before her onset date, “I used to exercise. Now I watch
TV and help my son with homework” every other day.
(Tr. 194). “I can’t walk or exercise due to dizziness and
always being tired.” (Id.). She regularly attended doctor’s
appointments, but otherwise remained alone at home.
(Id.). “I do not go anywhere.” (Tr. 195). Prompted to
mark abilities with which she encountered difficulty, she
marked only lifting. (Id.). She could walk for a mile
before needing a minute’s rest, but she had “difficulty
focusing” and followed verbal instructions better than
written instructions. (Id.). She handled neither stress nor
changes in routine well. (Tr. 196). In her closing remarks,
she provided: “I did not intend to be filing for [Social
Security]. I only had a few years left and I could have
returned. Instead I decided to leave my career of 20 years
for myself, my family, and my coworkers. My mood
swings were unbearable and still after all the medication
and therapy I still suffer every day from major depression
and panic attacks.” (Tr. 197) . . . .
ii.

O’Leary-Bell’s Testimony at the
Administrative Hearing

O’Leary-Bell opened her testimony noting that her
request for electroconvulsive therapy had been approved
as of the hearing, and her doctors merely had “to do some
workup with a brain scan before they’ll do the
treatment.” (Tr. 35). Her attorney then requested “at least
a couple of weeks to get a medical source statement from
[O’Leary-Bell’s] treating psychiatrist, Dr. Ingram.” (Tr.
36). The ALJ agreed to “keep it at 30 days and see what
happens.” (Tr. 37).
Thereafter, O’Leary-Bell confirmed her diagnoses of
depression, anxiety, and degenerative disc disease. (Tr.
40) . . . . The limitations she encountered near the end of
her career, however, were “primarily related to the
bipolar and depression rather than the physical, . . .” (Id.).
The ALJ observed records showing that O’Leary-Bell
voluntarily submitted to hospitalization in January 2015,
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which she subsequently explained: “I just knew in my
heart that I needed to remove myself from my home and
just go seek treatment, some sort of help because I wasn’t
very – doing a very good job at home.” (Tr. 42). Indeed,
her child had Asperger’s syndrome and “my husband and
my parents help out a lot.” (Id.) . . . . Ultimately, she
hospitalized herself due to “worthless feelings and . . .
hopelessness . . . .” (Tr. 44). “It helped me.” (Id.).
At times, other treatment proved difficult because, as Dr.
Ingram put it, “I was antidepressant resistant.” (Tr. 46).
This
catalyzed
O’Leary-Bell’s
interest
in
electroconvulsive therapy. (Id.).
Due to her alleged disability, O’Leary-Bell found herself
taking time off so often that she ran out of sick time or
vacation time and was driven to quit altogether. (Tr. 47).
Because she worked “third shift,” she suffered “problems
with insomnia.” (Tr. 48). She later left for personal
reasons. (Tr. 49). Her tendency to remain alone in her
room caused certain problems for her son, but often she
“could fix him a simple dinner” when he needed it. (Tr.
50) . . . . In day-to-day life, she continued to complete
simple tasks, and to “maintain a clean home.” (Tr. 51).
Nevertheless, “I don’t shop. I don’t cut the grass.” (Tr.
53) . . . . O’Leary-Bell only left the house “to get my
medication” or to attend doctor’s appointments. (Tr. 5253). She also suffered concentration problems . . . .
STANDARD OF REVIEW
The Court reviews objections to a Magistrate Judge’s R&R 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
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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 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) (internal citation
and quotation marks omitted). 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)
(internal quotation marks omitted).
ANALYSIS
The Court construes Plaintiff’s brief as objecting to two of the R&R’s
conclusions: 1) the ALJ’s findings in Step Three, Listing 12.04 were supported by

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substantial evidence; and 2) new and material evidence did not justify remand
under Sentence Six.1
I.

The ALJ’s findings in Step Three, Listing 12.04 were supported
by substantial evidence

Plaintiff challenges the ALJ’s findings under Listing 12.04 (depressive,
bipolar and related disorders) that she did not have an impairment or combination
of impairments that meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. § Pt. 404, Subpt. P, App. 1. As part of its analysis under
Step Three, the ALJ assessed whether Plaintiff satisfied the criteria set forth in
paragraphs A and B or paragraphs A and C of the Regulation. See 20 C.F.R. § Pt.
404, Subpt. P, App. 1.
In order for the ALJ to evaluate how the claimant’s mental disorder limits
her functioning, paragraph B provides the following assessment criteria:
understand, remember, or apply information; interact with others; concentrate,
persist, or maintain pace; and adapt or manage oneself. Id. The ALJ:
evaluate[s] the effects of [claimant’s] mental disorder on each of the
four areas of mental functioning based on a five-point rating scale
consisting of none, mild, moderate, marked, and extreme limitation.
To satisfy the paragraph B criteria, [claimant’s] mental disorder must
result in extreme limitation of one, or marked limitation of two,
paragraph B areas of mental functioning.
Id.
Plaintiff did not label her objections according to the instructions set forth in the
R&R.
1

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In this case, the ALJ found that Plaintiff has: mild restriction in activities of
daily living; moderate difficulties in social functioning; moderate difficulties with
regard to concentration, persistence or pace; and experienced no episodes of
decompensation of extended duration. The ALJ concluded that the paragraph B
criteria were not satisfied because Plaintiff’s “mental impairments do not cause at
least two ‘marked’ limitations or one ‘marked’ limitation and ‘repeated’ episodes
of decompensation.” Tr. 21.
The Court agrees with the Magistrate Judge’s conclusion that the ALJ rested
its Step Three findings on substantial evidence and adopts that portion of the R&R.
However, the Court declines to adopt the part of the R&R which concludes
that Plaintiff waived her argument challenging the weight the ALJ assigned to Dr.
DeLoach’s medical opinion. While Plaintiff did not explicitly challenge the ALJ’s
decision to afford significant weight to Dr. DeLoach’s opinion, a review of
Plaintiff’s Motion [16] shows that she attempted to develop this argument
throughout her brief. See McPherson v. Kelsey, 125 F.3d 989, 995 (6th Cir. 1997)
(explaining that only “[i]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived.”).
Nevertheless, Plaintiff fails to demonstrate how the weight afforded to Dr.
DeLoach’s opinion undermines the R&R’s ultimate conclusion. Plaintiff blankly
asserts that the ALJ “wholly and uncritically adopted Dr. DeLoach’s unsupported
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opinion.” [Dkt. #21 at 2]. But the ALJ gave the opinion “significant weight”
because “it is consistent with the record as a whole . . . . [and] there is not contrary
opinion of record from a medical source.” Tr. 25.
Plaintiff’s objection to the Step Three analysis primarily criticizes the ALJ
and the Magistrate Judge for their evaluations of the evidence in the record.
However, it is not for this Court to “re-weigh the evidence” or “substitute its
judgment for that of the ALJ” upon its review of the ALJ’s decision. Reynolds v.
Comm’r of Soc. Sec., 424 F. App’x 411, 414 (6th Cir. 2011).
Additionally, Plaintiff essentially submits that the ALJ set forth its “entire
rationale” for its Step Three findings in three short paragraphs. See Tr. 21. But,
Plaintiff fails to recognize that in assessing the paragraph B criteria, the ALJ is not
required to “spell[] out every consideration that went into the step three
determination.” Bledsoe v. Barnhart, 165 F. App’x 408, 411 (6th Cir. 2006); see
also Snoke v. Astrue, No. 2:10-CV-1178, 2012 WL 568986, at *6 (S.D. Ohio Feb.
22, 2012), report and recommendation adopted, No. 2:10-CV-01178, 2012 WL
1058982 (S.D. Ohio Mar. 28, 2012) (“[T]he Sixth Circuit has implicitly
acknowledged that a court must read the ALJ’s step-three analysis in the context of
the entire administrative decision, and may use other portions of a decision to
justify the ALJ’s step-three analysis.”). Accordingly, Plaintiff’s objection is
overruled.
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II.

Remand under Sentence Six of 42 U.S.C. § 405(g) is not
warranted

Remand under Sentence Six is appropriate “only upon a showing that there
is new evidence which is material and that there is a good cause for the failure to
incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. §
405(g).
The Sixth Circuit has explained that “evidence is new only if it was not in
existence or available to the claimant at the time of the administrative
proceeding[.]” Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001) (internal
quotation marks omitted). Furthermore, evidence is “material only if there is a
reasonable probability that the Secretary would have reached a different
disposition of the disability claim if presented with the new evidence.” Id. at 357
(internal quotation marks omitted). Finally, Plaintiff may show good cause by
“demonstrating a reasonable justification for the failure to acquire and present the
evidence for inclusion in the hearing before the ALJ.” Id. (internal quotation marks
omitted).
Plaintiff argues that the Court should reject the R&R’s conclusion that
Plaintiff is not entitled to remand because she has sufficiently demonstrated: 1)
“good cause” for failing to present Dr. Ingram’s opinion; and 2) that Dr. Ingram’s
opinion is material.
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Plaintiff argues that the Court should not adopt the Magistrate Judge’s
finding on “good cause” because the R&R did not “state any action Plaintiff could
have taken to compel Dr. Ingram to respond to the request for his opinion more
quickly.” [Dkt. #21 at 11].
This argument is without merit. Plaintiff bears the burden of “detailing the
obstacles that prevented the admission of the evidence.” Courter v. Comm’r of Soc.
Sec., 479 F. App’x 713, 725 (6th Cir. 2012). Although Dr. Ingram had been
treating Plaintiff since January 2015, Plaintiff did not ask for an opinion until after
the July 2015 hearing. Tr. 36. Moreover, the ALJ afforded Plaintiff an additional
30 days following the hearing to submit Dr. Ingram’s opinion, but Plaintiff did not
submit Dr. Ingram’s opinion until January 2016. Accordingly, the Court overrules
Plaintiff’s objection on “good cause” and adopts the R&R on this issue.
Plaintiff further argues that Dr. Ingram’s opinion was material because the
“substance of Dr. Ingram’s statement regarding the Plaintiff’s specific limitations
would certainly have produced a different decision” [and Dr. Ingram]
“thoughtfully rated the Plaintiff’s limitations in a number of functional areas.”
[Dkt. #21 at 12].
The R&R concluded that Dr. Ingram’s opinion was not material, in part,
because his “notes are only directly relevant to approximately nine of the thirtynine month interval between the hearing and the alleged onset date.” [Dkt. #20 at
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22]. On the issue of materiality, the Magistrate Judge further considered the fact
Dr. Ingram’s opinion was merely a “check-box opinion,” with no accompanying
analysis.
The Court need not, and does not, rule on whether Plaintiff has satisfied the
materiality prong by establishing that the inclusion of Dr. Ingram’s opinion would
have produced a different result. See Hollon ex rel. Hollon v. Comm’r of Soc. Sec.,
447 F.3d 477, 483 (6th Cir. 2006) (explaining that “the party seeking a remand
bears the burden of showing that these two requirements [(i) materiality and (ii)
good cause] are met.”). Because Plaintiff has not demonstrated “good cause” for
failing to present the ALJ with Dr. Ingram’s opinion in a timely manner, her
objection is overruled. The Court declines to adopt the R&R on the issue of
materiality.
CONCLUSION
Accordingly,
IT IS ORDERED that the R&R [20] of the Magistrate Judge is hereby
ADOPTED in part2 and is entered as the findings and conclusions of the Court.
IT IS FURTHER ORDERED that Plaintiff’s Objections [21] are
OVERRULED.
The Court also makes note of what it perceives as an error in the R&R. To the
extent that the R&R recommends that the Court deny “McDonald’s” Motion for
Summary Judgment, [Dkt. #20 at 23], the Court strikes “McDonald” and replaces
it with “O’Leary-Bell.”
2

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IT IS FURTHER ORDERED that Defendant’s Motion for Summary
Judgment [19] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary
Judgment [16] is DENIED.
SO ORDERED.

Dated: January 19, 2018

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

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