Mathis v. Commissioner of Social Security

Filing 23

OPINION AND ORDER Adopting 20 Report and Recommendation, Granting 18 Motion for Summary Judgment filed by Commissioner of Social Security, Denying 13 Motion for Summary Judgment filed by Marsha F. Mathis, Affirming the Findings of the Commissioner and Dismissing the Complaint. Signed by District Judge David M. Lawson. (SPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARSHA F. MATHIS,
Plaintiff,
v.

Case Number 17-10361
Honorable David M. Lawson
Magistrate Judge Elizabeth A. Stafford

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________/
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION, DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT, GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT, AFFIRMING THE FINDINGS OF THE COMMISSIONER,
AND DISMISSING COMPLAINT
The plaintiff filed the present action on February 3, 2017 seeking review of the
Commissioner’s decision denying her claims for disability benefits and supplemental security
income under Titles II and XVI of the Social Security Act. The case was referred to United States
Magistrate Judge Elizabeth A. Stafford under 28 U.S.C. § 636(b)(1)(B) and E.D. Mich. LR
72.1(b)(3). Thereafter, the plaintiff filed a motion for summary judgment to reverse the decision of
the Commissioner and remand the case for further consideration by the administrative law judge.
The defendant filed a motion for summary judgment requesting affirmance of the decision of the
Commissioner. Magistrate Judge Stafford filed a report on January 25, 2018 recommending that
the defendant’s motion for summary judgment be granted, the plaintiff’s motion for summary
judgment be denied, and the decision of the Commissioner be affirmed. The plaintiff filed timely
objections, and the defendant filed an empty response. The matter is now before the Court.

Marsha Mathis was 58 years old when she applied for disability benefits and supplemental
security income. She alleged that she was not able to work after February 18, 2014, because she
suffered from diabetes, poor vision, high blood pressure, knee pain, and involuntary weight loss.
Previously, she had worked for 21 years as a fast food restaurant cashier and food preparation
worker, and after that for a short time as a daycare provider. Her disability onset date corresponded
roughly with a hospital admission when she suffered an acute attack of diabetic ketoacidosis and
renal failure. Her kidney problem resolved and her diabetes is well controlled. She testified that
she cannot work because of severe pain in her legs and knees, which is aggravated by lifting heavy
things. Her tailbone hurts when she sits for more than an hour. She also testified that she has blurry
vision without glasses, but her vision is “good” with her correction.
The plaintiff’s applications for disability benefits and supplemental security income were
denied initially on June 27, 2014. The plaintiff timely filed a request for an administrative hearing,
and on August 20, 2015, the plaintiff appeared before Administrative Law Judge (ALJ) Lawrence
E. Blatnik. On November 25, 2015, ALJ Blatnik issued a written decision in which he found that
the plaintiff was not disabled. On December 13, 2016, the Appeals Council denied the plaintiff’s
request for review of the ALJ’s decision. The plaintiff filed her complaint seeking judicial review
on February 3, 2017.
ALJ Blatnik reached his conclusion that the plaintiff was not disabled by applying the fivestep sequential analysis prescribed by the Secretary in 20 C.F.R. §§ 404.1520(a) and 416.920(a).
He found that the plaintiff had not engaged in substantial gainful activity since February 18, 2014
(step one); and the plaintiff suffered from diabetes mellitus, essential hypertension, and osteoarthritis
of both knees, impairments which were “severe” within the meaning of the Social Security Act (step

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two). The ALJ considered the hospital diagnoses of pancreatitis and renal failure made during the
plaintiff’s one-week hospitalization in February 2014, but because those resolved by the time of her
discharge, he did not consider those impairments “severe.” He did not find her vision problem to
be severe, because there was no indication in the record that she sought treatment. The ALJ also
believed that the plaintiff had not complained to her doctors about blurred vision, but apparently he
overlooked a doctor visit in December 2013, one in March 2014, and another in October 2014 where
the plaintiff discussed blurred vision with her medical providers. The ALJ also determined that the
plaintiff’s involuntary weight loss was not a severe impairment; although her weight fluctuated from
137 pounds in 2013 to 126 pounds in March 2014, he found that her weight had stabilized at the
130-132 pound range, and she testified that she stood five feet, six inches in height.
The ALJ found that none of those severe impairments alone or in combination met or
equaled a listing in the regulations (step three). The ALJ then found that the plaintiff had the
residual functional capacity (RFC) to perform a range of light work, which included lifting, carrying,
pushing, or pulling 20 pounds occasionally and 10 pounds frequently; and sitting, standing, or
walking at least six hours of an eight-hour work day; but limited to occasionally climbing ramps and
stairs; and never climbing ladders or scaffolds. Based on that RFC, the ALJ found that the plaintiff
could perform the duties required for her past relevant work as a fast food restaurant cashier, which
was unskilled and required light exertion (step four). Based on those findings, the ALJ did not
proceed to the fifth step, and concluded that the plaintiff was not disabled within the meaning of the
Social Security Act.
In her motion for summary judgment, the plaintiff argued that the ALJ erred when he failed
to consider her non-severe vision impairment when determining her RFC. She argued, correctly,

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that the ALJ is obliged to consider both severe and non-severe impairments when assessing the
plaintiff’s ability to work. See Social Security Ruling (SSR) 96-8p. And she noted that the
Dictionary of Occupational Titles (DOT) listed frequent to good near-vision acuity as one of the
requirements of the jobs mentioned by the vocational expert. The magistrate judge suggested,
however, that the ALJ actually considered — and rejected — the plaintiff’s alleged vision
impairment when he discounted the impairment as non-severe. See Tr. 15.
The plaintiff also argued that the ALJ “grossly overestimated” her RFC because he did not
evaluate her credibility properly. The magistrate judge suggested that the ALJ properly considered
the record evidence and was well within his purview when he found the plaintiff’s description of her
disability only partially credible.
Finally, the plaintiff argued that the ALJ failed to make specific findings to support his
determination that the plaintiff could return to her past work as a fast food restaurant cashier. The
magistrate judge suggested, however, that the ALJ’s specific findings can be seen in his
determination of the plaintiff’s RFC, including the explanation for rejecting the opinion of Dr. Lee
Koski from Michigan Rehabilitation Services, the credit he gave to the VE’s testimony, and his
observation that the reduction in available jobs that might be caused by the plaintiff’s need to sit
every 20 to 30 minutes still left enough available jobs to amount to significant numbers.
As noted, the plaintiff filed timely objections to the report and recommendation. The
attorney for the Commissioner filed a response to the objections that adds nothing: he did not present
any argument, he did not cite any authority, he did not make any reference to the record. The filing
of timely objections to a report and recommendation requires the court to “make a de novo
determination of those portions of the report or specified findings or recommendations to which

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objection is made.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667 (1980);
United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This de novo review requires the court to
re-examine all of the relevant evidence previously reviewed by the magistrate judge in order to
determine whether the recommendation should be accepted, rejected, or modified in whole or in
part. 28 U.S.C. § 636(b)(1).
“The filing of objections provides the district court with the opportunity to consider the
specific contentions of the parties and to correct any errors immediately,” Walters, 638 F.2d at 950,
enabling the court “to focus attention on those issues-factual and legal-that are at the heart of the
parties’ dispute,” Thomas v. Arn, 474 U.S. 140, 147 (1985). As a result, “‘[o]nly those specific
objections to the magistrate’s report made to the district court will be preserved for appellate review;
making some objections but failing to raise others will not preserve all the objections a party may
have.’” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (quoting Smith v.
Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987)).
The Court has reviewed the file, the report and recommendation, and the plaintiff’s
objections and has made a de novo review of the administrative record in light of the parties’
submissions.
First Objection
In her first objection, the plaintiff contends that the magistrate judge should have found that
the ALJ gave insufficient consideration to the plaintiff’s impaired vision in determining her RFC.
The plaintiff asserts that her impaired vision precludes her from performing past relevant work
because she cannot see well for eight hours a day, five days a week. The plaintiff argues that the
ALJ’s written decision lacks an adequate explanation as to why the plaintiff’s impaired vision was

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not factored into his finding that the plaintiff was capable of performing the duties of a fast food
restaurant cashier.
The attorney for the Commissioner asserted in his summary judgment brief that the
plaintiff’s argument about her impaired vision is “misguided” and “legally irrelevant,” because the
ALJ determined that other impairments were severe. He cited Anthony v. Astrue, 266 F. App’x 451
(6th Cir. 2008), in support. That response talks past the plaintiff’s contention, however, and
suggests that the Commissioner misread the plaintiff’s brief. The Anthony court held that the failure
of the ALJ to find an impairment severe, and thus proceed beyond step two of the sequential
analysis, was harmless when other impairments found severe allowed the plaintiff to clear that
hurdle. And in that case, the ALJ actually considered the non-severe impairments in the subsequent
steps. Id. at 457. In this case, the plaintiff does not challenge the finding that her vision impairment
was non-severe; she contends instead that the ALJ did not take that non-severe finding into account
when establishing her RFC.
It is understood that when “assessing RFC, the adjudicator must consider limitations and
restrictions imposed by all of an individual’s impairments, even those that are not ‘severe.’” SSR
96-8p, 1996 WL 374184, at *5 (1996). The reason, explained the Commissioner, is that although
“a ‘not severe’ impairment(s) standing alone may not significantly limit an individual’s ability to
do basic work activities, it may — when considered with limitations or restrictions due to other
impairments — be critical to the outcome of a claim.” Ibid.
The defendant asserted in his summary judgment brief that the ALJ “explicitly and
repeatedly addressed” the vision impairment, referring to pages 15 and 16 of the administrative
record. But the only reference to the plaintiff’s poor vision on page 15 comes in a paragraph where

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the ALJ stated — incorrectly — that the plaintiff never mentioned a vision problem to any of her
medical providers, and the single reference on page 16 is in a recap of the plaintiff’s claim. There
is no discussion in the ALJ’s decision beyond that — much less an “explicit and repeated” one —
and certainly no reasoning in the decision as to why the vision problem should not affect the
plaintiff’s capacity to perform work.
The magistrate judge appears to have followed the defendant’s misdirection, echoing his
arguments.
There is no question that the ALJ was obliged to “consider[] all impairments — including
ones that are not severe,” when assessing the plaintiff’s RFC. Reynolds v. Comm’r of Soc. Sec., 424
F. App’x 411, 417 (6th Cir. 2011) (citations omitted). And he also must “explain the weight given
to each physician’s opinion” discussing those impairments. Ibid. The ALJ did not do so here,
presumably because he mistakenly believed that the plaintiff had never complained previously about
blurred vision to a doctor.
The ALJ’s error does not require remanding the case for further consideration, however. As
the Sixth Circuit has observed, “if an agency has failed to adhere to its own procedures, we will not
remand for further administrative proceedings unless ‘the claimant has been prejudiced on the merits
or deprived of substantial rights because of the agency’s procedural lapses.’” Rabbers v. Comm’r
Soc. Sec. Admin., 582 F.3d 647, 654 (6th Cir. 2009) (quoting Connor v. United States Civil Serv.
Comm’n, 721 F.2d 1054, 1056 (6th Cir. 1983). Here, there can be little question that the record
supports the ALJ’s RFC determination, even accounting for the plaintiff’s previous complaints of
blurred vision. Mathis did mention on an intermittent basis that her vision was blurred. But she also
testified that she engaged in activities that required the level of visual acuity that was consistent with

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the RFC finding, such as reading, doing hair, assembling jigsaw puzzles, and browsing the internet.
She also denied having blurred vision during an examination on October 13, 2014, at which time
her vision was reported as normal. Tr. 341, 343. And she testified that although her vision is blurry
without glasses, with her glasses she said, “I see good.” Tr. 39.
The plaintiff argued that jobs identified by the VE required a level of visual acuity beyond
the plaintiff’s capacity and inconsistent with the RFC found by the ALJ. However, although the
ALJ failed to discuss the plaintiff’s vision complaints when formulating the RFC, the record is clear
that a non-severe vision impairment would play no role in determining the plaintiff’s capacity to
work. The RFC determination, therefore, was supported by substantial evidence, and the ALJ’s
error in overlooking medical reports in the record and failing to discuss the non-severe impairment
was harmless.
The first objection will be overruled.
Second Objection
In her second objection, the plaintiff contends that a “compelling reason” exists to reverse
the ALJ’s credibility determination as to the plaintiff’s testimony. The plaintiff argues that had the
ALJ properly credited the plaintiff’s testimony that she was unable to stand and walk for most of an
eight-hour workday, he would not have found that she was capable of performing light work. The
plaintiff represents that the Michigan Rehabilitation Services agency determined that she was unable
to be rehabilitated, and that finding, although not binding on the Commissioner’s decision, is strong
evidence that the plaintiff is disabled. The plaintiff argues that her work history and attempts to
return to work demonstrate that she is credible, and the ALJ should have taken the rehabilitation

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agency’s determination into account, rather than relying solely on the plaintiff’s symptoms in
assessing her credibility.
Certainly, when a claimant’s testimony is rejected on the ground that credibility is lacking,
the ALJ is obligated to explain in some detail the reasons that led to the rejection. The Sixth Circuit
explained:
Social Security Ruling 96-7p also requires the ALJ explain his credibility
determinations in his decision such that it “must be sufficiently specific to make clear
to the individual and to any subsequent reviewers the weight the adjudicator gave to
the individual’s statements and the reasons for that weight.” . . . In other words,
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 Social Sec., 486 F.3d 234, 248 (6th Cir. 2007); see also Hurst v. Sec’y of
Health & Human Servs., 753 F.2d 517, 519 (6th Cir.1985) (“In the absence of an explicit and
reasoned rejection of an entire line of evidence, the remaining evidence is ‘substantial’ only when
considered in isolation. It is more than merely ‘helpful’ for the ALJ to articulate reasons . . . for
crediting or rejecting particular sources of evidence. It is absolutely essential for meaningful
appellate review.”) (quoting Zblewski v. Schweiker, 732 F.2d 75, 78 (7th Cir. 1984)).
As the magistrate judge correctly observed, however, the ALJ gave reasons for his
determination that the plaintiff’s description of her limitations was only partially credible. The ALJ
considered the plaintiff’s own description of her ability to perform daily activities, and he considered
the pertinent medical evidence in the record. He also gave good reasons for his disagreement with
the opinion of the Michigan Rehabilitation Service and Dr. Koski. The plaintiff argues that there
are sound reasons why her own account of her limitations should be accepted. And perhaps there
are. But this Court may “not . . . resolve conflicting evidence in the record[,] to examine the

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credibility of the claimant’s testimony,” Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003),
“not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility,”
Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Instead, where, as here, the Commissioner’s
decision is supported by substantial evidence, it must be upheld even if the record might support a
contrary conclusion. Smith v. Sec’y of Health & Human Servs., 893 F.2d 106, 108 (6th Cir. 1989).
The plaintiff’s second objection will be overruled.
After a de novo review of the entire record and the materials submitted by the parties, the
Court concludes that the magistrate judge properly reviewed the administrative record and applied
the correct law in reaching his conclusion. The Court has considered all of the plaintiff’s objections
to the report and finds them to lack merit.
Accordingly, it is ORDERED that the magistrate judge’s report and recommendation [dkt.
#20] is ADOPTED.
It is further ORDERED that the plaintiff’s objections [dkt. #21] are OVERRULED.
It is further ORDERED that the plaintiff’s motion for summary judgment [dkt. #13] is
DENIED.
It is further ORDERED that the defendant’s motion for summary judgment [dkt #18] is
GRANTED. The findings of the Commissioner are AFFIRMED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: March 12, 2018

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PROOF 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 March 12, 2018.
s/Susan Pinkowski
SUSAN PINKOWSKI

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