Haack v. Secretary of Health and Human Services

Filing 26

ORDER Adopting 23 Report and Recommendation and 19 Report and Recommendation GRANTING 17 Motion for Summary Judgment filed by Carolyn W Colvin, DENYING 13 Motion for Summary Judgment filed by Heather Renee Haack and DENYING 21 Motion for Reconsideration, filed by Heather Renee Haack, Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
HEATHER RENEE HAACK,
Plaintiff,

Case No. 16-cv-14304

v.

Paul D. Borman
United States District Judge

COMMISSIONER OF
SOCIAL SECURITY,

Anthony P. Patti
United States Magistrate Judge

Defendant.
_________________________/
OPINION AND ORDER (1) ADOPTING MAGISTRATE JUDGE PATTI’S
MARCH 1, 2018 REPORT AND RECOMMENDATION (ECF NO. 19),
(2) DENYING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT (ECF NO. 13),
(3) GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT (ECF NO. 17),
(4) OVERRULING PLAINTIFF’S OBJECTIONS
TO THE MAGISTRATE JUDGE’S MARCH 20, 2018
REPORT AND RECOMMENDATION (ECF NO. 24)
(5) ADOPTING MAGISTRATE JUDGE PATTI’S MARCH 20, 2018
REPORT AND RECOMMENDATION (ECF NO. 23), and
(6) DENYING PLAINTIFF’S MOTION FOR REMAND (ECF NO. 21)
This matter is before the Court on two separate Report and Recommendations
issued by Magistrate Judge Anthony P. Patti: (1) March 1, 2018 Report and
Recommendation to Deny Plaintiff’s Motion for Summary Judgement and Grant
Defendant’s Motion for Summary Judgment (ECF No. 19); and (2) March 20, 2018

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Report and Recommendation to Deny Plaintiff’s Motion for Remand Pursuant to
Sentence Six of § 405(g) (ECF No. 23). Plaintiff did not file objections to the March
1, 2018 Report but has filed objections to the March 20, 2018 Report. (ECF No. 24,
Objections.) Defendant has filed a Response to the Plaintiff’s Objections. (ECF No.
25, Response to Objections.)
Having reviewed the March 1, 2018 Report to which no timely objections were
filed under 28 U.S.C. § 636(b)(1) and E.D. Mich L.R. 72.1(d), the Court ADOPTS the
Magistrate Judge’s March 1, 2018 Report, GRANTS Defendant’s Motion for
Summary Judgment (ECF No. 18), and DENIES Plaintiff’s Motion for Summary
Judgment (ECF No. 17).
Having conducted a de novo review, pursuant to 28 U.S.C. § 636(b)(1), of those
parts of the Magistrate Judge’s March 20, 2018 Report to which specific objections
have been filed, the Court OVERRULES Plaintiff’s objections, ADOPTS the
Magistrate Judge’s March 20, 2018 Report, DENIES Plaintiff’s Motion for a Sentence
Six Remand, and AFFIRMS the findings of the Commissioner.
I.

BACKGROUND
Plaintiff initially filed her application for Social Security Disability Insurance

(“DIB”) Benefits and Supplemental Security (“SSI”) Benefits on June 29, 2009,
alleging a disability onset date of May 22, 2009. On April 21, 2011Administrative
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Law Judge (“ALJ”) Poulose issued a decision denying benefits. (ECF No. 19,
Transcript of Administrative Proceedings (“Tr.”) 165-80.) On August 21, 2012,
Plaintiff reapplied for benefits alleging an onset date of April 22, 2011. (Tr. 322-34.)
On November 29, 2013, ALJ Melvyn Kalt issued a decision granting Plaintiff a closed
period of disability, but that decision was vacated by the Appeals Council and the
matter was remanded for de novo hearing. (Tr. 215-33, 236-40.)
On June 17, 2015, ALJ Patricia S. McKay held a hearing on remand and
determined that Plaintiff, who was represented by counsel at the hearing, had
experienced a worsening of her condition since ALJ Poulose issued her decision,
resulting in a change in her residual function capacity (“RFC”), but concluded that
Plaintiff still was not disabled under the Social Security Act. (Tr. 14-31, 65-164.) On
October 27, 2016, the Appeals Council denied Plaintiff’s request for a review of ALJ
McKay’s decision, and Plaintiff timely filed in this Court seeking judicial review of
the Commissioner’s final decision.
On March 1, 2018, Magistrate Judge Patti issued his Report resolving the
parties’ cross-motions for summary judgment, recommending the Court grant
Defendant’s motion and deny Plaintiff’s motion. Plaintiff did not file objections to the
March 1, 2018 Report. On March 1, 2018, Plaintiff filed a “Motion for Remand to
Consider New Evidence or Alternatively to Allow This Record to Be Expanded.”
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(ECF No. 18.) This filing was incomplete and incomprehensible and the Court issued
an Order on March 7, 2018 striking the filing. (ECF No. 20.) On March 12, 2018,
Plaintiff filed a document titled “Motion for Reconsideration” with an attached brief
entitled “Brief in Support of Plaintiff’s Motion for Remand to Consider New
Evidence.” (ECF No. 21.) The Court construed this filing as a Motion for Remand to
Consider New Evidence and referred the motion to Magistrate Judge Patti for a Report
and Recommendation. (ECF No. 22.) Plaintiff has expressly stated that she “does not
object to the Magistrate construing the [Motion for Reconsideration] as one for a
sentence six remand under 42 U.S.C. § 405(g).” (ECF No. 24, Pl.’s Objs. 2, PgID
862.)
On March 20, 2018, Magistrate Judge Patti issued a Report and
Recommendation to Deny Plaintiff’s Motion for Remand Pursuant to Sentence Six and
the Plaintiff has now filed objections to that Report. Defendant has filed a Response
to the Objections. The Court concludes, for the reasons discussed below, that the
Magistrate Judge correctly resolved the Motion for Remand, and overrules Plaintiff’s
objections. The ALJ’s findings and relevant matters from the administrative record are
adequately set forth in the Magistrate Judge’s Report and will be referenced in this
Opinion and Order as necessary to the Court’s analysis of the Plaintiff’s Objections.

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II.

STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1),

the Court conducts a de novo review of the portions of the Magistrate Judge’s Report
and Recommendation to which a party has filed “specific written objection” in a timely
manner. Lyons v. Comm’r Soc. Sec., 351 F. Supp. 2d 659, 661 (E.D. Mich. 2004). A
district court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Only those
objections that are specific are entitled to a de novo review under the statute. 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. (quotation marks and citation omitted). “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). “‘[B]are disagreement with the conclusions reached by the
Magistrate Judge, without any effort to identify any specific errors in the Magistrate
Judge’s analysis that, if corrected, might warrant a different outcome, is tantamount to
an outright failure to lodge objections to the R & R.’” Arroyo v. Comm’r of Soc. Sec.,
No. 14-cv-14358, 2016 WL 424939, at *3 (E.D. Mich. Feb. 4, 2016) (quoting Depweg
v. Comm'r of Soc. Sec., No. 14-11705, 2015 WL 5014361, at *1 (E.D. Mich. Aug. 24,
5

2015) (citing Howard v. Secretary of Health & Human Services, 932 F.2d 505, 509
(6th Cir. 1991)).
III.

ANALYSIS
A.

The Motion for Remand is Procedurally Improper

On March 12, 2018, Plaintiff filed a motion seeking a sentence six remand to
permit consideration of “newly discovered evidence,” which consisted of a summary
of an April 12, 2017 Neuropsychological Examination of the Plaintiff conducted by
Ennis Berker, PhD.1 (ECF No. 21, Pl.’s Mot. Remand Ex. A, April 12, 2017
Neuropsychological Examination Summary prepared by Ennis Berker, PhD.) As an
initial matter, the Court finds that Plaintiff’s motion for a sentence six remand, filed on
March 12, 2018, nearly nine months after the parties had submitted their summary
judgment motions, and after the Magistrate Judge had issued his March 1, 2018 Report
resolving those summary judgment motions, was procedurally improper. See Wilkins
v. Comm’r of Soc. Sec., No. 13-12425, 2014 WL 2061156, at *15 (E.D. Mich. May 19,
2014) (finding that “plaintiff’s motion for [sentence six] remand, filed after and in
addition to her motion for summary judgment, is procedurally improper”) (Roberts, J.)
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The Court’s analysis in this Opinion and Order relates solely to the Plaintiff’s
Objections to the Magistrate Judge’s March 20, 2018 Report recommending denial of
Plaintiff’s motion for a sentence six remand. No objections were filed by either party
to the Magistrate Judge’s March 1, 2018 Report (ECF No. 19), which the Court has
reviewed and adopts in full in this Opinion and Order.
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(adopting Report and Recommendation of Hluchaniuk, MJ); Emmons v. Comm’r of
Soc. Sec., No. 12-15235, 2014 WL 1304936, at *1 (E.D. Mich. Feb. 13, 2014)
(Michelson, MJ) (denying a motion for a sentence six remand, filed after plaintiff had
filed a motion for summary judgment, as a procedurally improper second motion for
summary judgment), adopted at 2014 WL 1304938, at *2 (E.D. Mich. March 31,
2014). The Court concludes that the Plaintiff’s March 12, 2018 Motion to Remand is
a procedurally improper second motion for summary judgment.
B.

Even Assuming the Motion to Remand Was Procedurally Proper,
Plaintiff Has Failed to Demonstrate that the Magistrate Judge Erred
in Substantively Denying Plaintiff’s Motion for a Sentence Six
Remand

The Court can remand for further proceedings pursuant to Sentence Six of 42
U.S.C. § 405(g) “if a claimant shows that the evidence is new and material, and that
there was good cause for not presenting it in the prior proceeding.’” Foster v. Halter,
279 F.3d 348, 357 (6th Cir. 2001). Even if Plaintiff’s motion for a sentence six remand
was not procedurally improper, she has failed to demonstrate that the Magistrate Judge
erred in concluding that she substantively failed to carry her burden to establish that
the “new evidence” was material and that there was good cause for failing to obtain
such evidence earlier.

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“For the purposes of a 42 U.S.C. § 405(g) remand, evidence is new only if it was
‘not in existence or available to the claimant at the time of the administrative
proceeding.’” Foster, 279 F.3d at 357 (quoting Sullivan v. Finkelstein, 496 U.S. 617,
626 (1990)). “Such 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.’” Foster, 279 F.3d at 357 (quoting Sizemore v. Sec'y
of Health & Human Servs., 865 F.2d 709, 711 (6th Cir. 1988)). “Evidence of a
subsequent deterioration or change in condition after the administrative hearing is
deemed immaterial.” Wyatt v. Sec’y of Health and Human Services, 974 F.2d 680, 685
(6th Cir. 1992). Such evidence is “irrelevant and cannot justify a remand.” Id. To be
“material,” evidence must “necessarily speak to [Plaintiff’s] condition at the relevant
time.” Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 277-78 (6th Cir. 2010) (finding
irrelevant and not material evidence of increased psychotic behavior that derived from
testing conducted “almost two years after the ALJ” held the hearing) (emphasis in
original).
“A claimant shows “good cause” by demonstrating a reasonable justification for
the failure to acquire and present the evidence for inclusion in the hearing before the
ALJ.” Foster, 279 F.3d at 357. “[T]he burden of showing that a remand is appropriate
is on the claimant.” Id. (citing Oliver v. Sec'y of Health & Human Servs., 804 F.2d
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964, 966 (6th Cir. 1986)).
1.

Objection Number One

In Objection One, Plaintiff appears to challenge the Magistrate Judge’s
determination that Plaintiff failed to demonstrate a reasonable probability that the April
12, 2017 neuropsychological examination summary would have resulted in a different
disposition of Plaintiff’s disability claim. Plaintiff in essence attempts to reassert her
summary judgment argument, which was rejected by both the ALJ and the Magistrate
Judge in his March 1, 2018 Report, that Plaintiff’s depression was a medically
determinable impairment. The majority of Plaintiff’s “objection” discusses the same
evidence that was already considered by both the ALJ and the Magistrate Judge in
concluding that Plaintiff’s depression was not a medically determinable impairment
and that Plaintiff did not suffer functional limitations in addition to those included by
the ALJ in her RFC. This issue was resolved in the Magistrate Judge’s March 1, 2018
Report, to which no objections were filed, and which the Court has adopted in this
Opinion and Order. The Court will not entertain Plaintiff’s “repackaging” of this
argument here.
In any event, Plaintiff fails to discuss or demonstrate how Dr. Berker’s April 12,
2017 neuropsychological examination summary would have resulted in a different
disposition of Plaintiff’s disability claim. Indeed, as noted below in the Court’s
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discussion of Plaintiff’s second objection, she makes no argument, and offers no
analysis in this Objection, as to how the April 12, 2017 neuropsychological
examination of the Plaintiff, which occurred nearly two years after ALJ McKay’s June
17, 2015 hearing, even relates to Plaintiff’s condition at the time of the 2015 hearing
and decision. In the April 12, 2017 neuropsychological examination report, Dr. Berker
summarizes Plaintiff’s past medical history, then sets forth her own test results from
her examination of the Plaintiff on April 12, 2017, and summarily concludes that she
“do[es] not believe that [Plaintiff] can successfully engage in productive employment,
and this is clearly consistent with her failed work history.” (Berker Summary 6, PgID
841.) Nothing in the April 12, 2017 neuropsychological examination summary
suggests how the results of Dr. Berker’s testing relate to Plaintiff’s condition at the
time of the 2015 administrative hearing and decision nearly two years prior.
In her objections, Plaintiff summarily submits, after summarizing Dr. Berker’s
examination report, that “this new evidence supports her argument that the ALJ erred
in finding that depression was not a medically determinable impairment.” (Objs. 6,
PgID 866.) However nothing in Dr. Berker’s examination summary, or the Plaintiff’s
objections, suggests how the results of that examination relate to Plaintiff’s condition
at or around June/July 2015, or how this evidence results in “a reasonable probability
that the Secretary would have reached a different disposition of the disability claim if
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presented with the new evidence.” Foster, 279 F.3d at 357 (internal quotation marks
and citation omitted). Plaintiff made no effort, either in her motion or her objections,
to develop any argument to support this critical aspect of the materiality analysis.
The Magistrate Judge did not err in concluding that Plaintiff failed to meet her
burden to demonstrate that there was a reasonable probability that the ALJ would have
reached a different disposition had Plaintiff presented her “new evidence” during the
relevant period. Plaintiff’s first Objection is OVERRULED.
2.

Objection Number Two

Plaintiff’s second objection submits that the Magistrate Judge erred in
concluding that Dr. Berker’s opinion does not relate back to show Plaintiff’s condition
at the time of the administrative hearing. (Objs. 6, PgID 866.) In support of this
objection, Plaintiff offers one single-sentence observation: “Although Dr. Berker’s
examination occurred after the ALJ’s decision on July 28, 2015, it was consistent with
the diagnosis and opinions in Plaintiff’s favor at the time.” (Id.) At most this objection
argues that Dr. Berker’s opinion is further evidence, thus cumulative in nature, of the
argument that has already been rejected by both the ALJ and the Magistrate Judge in
his March 1, 2018 Report. This perfunctory statement fails to carry Plaintiff’s burden
to establish materiality. As discussed supra, nothing in Dr. Berker’s April 12, 2017
neuropsychological examination summary suggests how the results of her 2017
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examination relate back to Plaintiff’s condition at or around June/July 2015. Plaintiff
makes no argument, and offers no analysis in this Objection, as to how the April 12,
2017 neuropsychological examination of the Plaintiff, which occurred nearly two years
after ALJ McKay’s June 17, 2015 hearing, relates to Plaintiff’s condition at the time
of the 2015 hearing and decision.
The Magistrate Judge did not err in concluding that the Plaintiff failed to
establish that the April 12, 2017 neuropsychological examination related back to her
condition at the time of the ALJ’s hearing and decision in this matter. Plaintiff’s
second objection is OVERRULED.
3.

Objection Number Three

Plaintiff objects to the Magistrate Judge’s conclusion that the April 12, 2017
neuropsychological examination did not address Plaintiff’s specific functional
limitations or her ability to work during the relevant period. But Plaintiff’s objection
does not even attempt to demonstrate what specific functional limitations were
addressed in the April 12, 2017 neuropsychological examination, nor explain how any
of the findings in the April 12, 2017 neuropsychological examination mandate further
restrictions than those already accounted for by the ALJ in her decision. As the
Magistrate Judge correctly observed, “[t]he mere diagnosis of [a condition], of course,
says nothing about the severity of the condition.” Higgs v. Bowen, 880 F.2d 860, 863
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(6th Cir. 1988) (citing Foster v. Bowen, 853 F.2d 483, 489 (6th Cir. 1988) (diagnosable
impairment not necessarily disabling)). And the Magistrate Judge correctly determined
that Dr. Berker’s “opinion” that Plaintiff “cannot successfully engage in productive
employment,” is (1) stated in the present tense with no evidence that it relates to the
relevant 2015 period, and (2) opines on an issue expressly reserved to the
Commissioner, i.e. whether Plaintiff is “disabled” or “unable to work,” and therefore
is entitled to no particular weight. (Report 9-10, PgID 855-56.)
Plaintiff objects to the Magistrate Judge’s finding that the April 12, 2017
neuropsychological examination did not address Plaintiff’s specific limitations or her
ability to work during the relevant period, but Plaintiff completely fails to demonstrate
how that was error or how the April 12, 2017 neuropsychological examination does in
fact address specific limitations. There was no error and the Plaintiff’s Third objection
is OVERRULED.
4.

Objection Number Four

Plaintiff objects to the Magistrate Judge’s finding that Plaintiff did not have
good cause for failing to obtain the April 12, 2017 neuropsychological examination
earlier. (Objs. 8-9, PgID 869-70.) In support of this objection, Plaintiff states that she
“can only argue that the evidence produced at the hearing shows” that she is unable to
perform everyday tasks on her bad days. (Id.) But Plaintiff offers no explanation as
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to how this “evidence” demonstrates good cause for her failure to seek an opinion from
Dr. Berker earlier. As the Magistrate Judge correctly observed in his Report, “a review
of the medical records in this case reveals that Plaintiff repeatedly attended treatment
for her impairments, at least through 2015, demonstrating her ‘ability to obtain medical
treatment when necessary.’” (March 20, 2018 Report 11-12, PgID 857-58 (quoting Van
Heck v. Comm’r of Soc. Sec., No. 06-cv-15233, 2008 WL 1808320, at *6 (E.D. Mich.
Apr. 21, 2008) and collecting cases).
Plaintiff fails to demonstrate how the Magistrate Judge erred in reaching the
conclusion that Plaintiff did not carry her burden of establishing good cause.
Plaintiff’s fourth objection is OVERRULED.
IV.

CONCLUSION
Plaintiff has failed to demonstrate that the Magistrate Judge erred in reaching the

conclusions in his March 20, 2018 Report that Plaintiff has failed to demonstrate the
materiality of the April 12, 2017 neuropsychological examination and failed to
establish good cause for not having obtained the neuropsychological examination
during the relevant 2015 time period. Even if Plaintiff was able to establish good
cause, she must demonstrate both materiality and good cause, and she has failed to
demonstrate the former. As the Magistrate Judge noted in his March 20, 2018 Report,
“where a claimant believes that his or her condition has worsened subsequent to the
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administrative determination, the remedy is to make a new application for benefits.”
(March 20, 2018 Report 13, PgID 859) (citing Sizemore, 865 F.2d at 712).
Accordingly, it is ORDERED that:
1) Magistrate Judge Patti’s March 1, 2018 Report and Recommendation (ECF
No. 19) is ADOPTED;
2) Plaintiff’s Motion for Summary Judgment (ECF No. 13) is DENIED;
3) Defendant’s Motion for Summary Judgment (ECF No. 17) is GRANTED;
4) Plaintiff’s Objections (ECF No. 24) are OVERRULED;
5) Magistrate Judge Patti’s March 20, 2018 Report and Recommendation (ECF
No. 23) is ADOPTED;
6) Plaintiff’s Motion for Remand (ECF No. 21) is DENIED without prejudice
to Plaintiff’s right to submit a new claim to the Social Security Administration
based upon new evidence of claimed disability; and
7) The findings of the Commissioner are AFFIRMED.

IT IS SO ORDERED.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: September 28, 2018

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CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each
attorney or party of record herein by electronic means or first class U.S. mail on
September 28, 2018.

s/Deborah Tofil
Case Manager

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