Momany v. BERRYHILL

Filing 24

ORDER Adopting 18 Report and Recommendation, DENYING 15 Motion for Summary Judgment filed by Bryan K. Momany, GRANTING 17 Motion for Summary Judgment filed by NANCY A BERRYHILL - Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRYAN K. MOMANY,
Plaintiff,

Case No. 17-cv-10626

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 THE MAGISTRATE JUDGE’S
JANUARY 23, 2019 REPORT AND RECOMMENDATION (ECF NO. 18),
(2) OVERRULING PLAINTIFF’S OBJECTIONS (ECF NO. 22)
(3) DENYING PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT (ECF NO. 15),
(4) GRANTING THE DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT (ECF NO. 17), AND
(5) AFFIRMING THE DECISION OF THE COMMISSIONER
On January 23, 2019, Magistrate Judge Anthony P. Patti issued a Report and
Recommendation to deny Plaintiff’s Motion for Summary Judgment, grant
Defendant’s Motion for Summary Judgment, and affirm the findings of the
Commissioner. (ECF No. 18, Report and Recommendation “R&R”.) On February
20, 2019, Plaintiff filed Objections to the Report and Recommendation. (ECF No.

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22.)1 Defendant filed a Response to Plaintiff’s Objections. (ECF No. 23.) Having
conducted a de novo review, pursuant to 28 U.S.C. § 636(b)(1), of those parts of the
Magistrate Judge’s Report and Recommendation to which specific objections have
been filed, the Court OVERRULES Plaintiff’s Objections, ADOPTS the Magistrate
Judge’s Report and Recommendation, GRANTS Defendant’s Motion for Summary
Judgment (ECF No. 17), DENIES Plaintiff’s Motion for Summary Judgment (ECF
No. 15), and AFFIRMS the findings of the Commissioner.
I.

BACKGROUND
The Magistrate Judge thoroughly set forth the factual background and the

administrative history in his R&R.

To summarize as pertinent to Plaintiff’s

objections, the Administrative Law Judge (“ALJ”) determined that Plaintiff had the

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Plaintiff’s objections were originally due on February 6, 2019. On February 5, 2019,
the day before the objections were due, Plaintiff filed an ex parte motion seeking an
additional 14 days to file objections, citing the press of other work. (ECF No. 19, Ex
Parte Motion to Extend Time.) The Court granted the Plaintiff’s motion for more
time, and the objections were due on February 20, 2019. (2/11/19 Text Only Order
granting Plaintiff’s motion for more time.) On February 20, 2019, the day the
objections were due based on the previously granted extension of time, Plaintiff filed
another motion for more time, this time citing the press of other work, obligations
caring for her mother, and weather complications preventing her staff from attending
to her clerical work. (ECF No. 20.) The Court denied this motion, noting that
Plaintiff had been given nearly a month to file objections and waited until the day the
objections were due (after having already been granted one extension) to seek a
second extension of time. (ECF No. 21, Order Denying Motion for Extension of
Time.) Plaintiff then filed these timely objections on February 20, 2019.
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following severe impairments: degenerative joint disease, status post left shoulder
surgery, degenerative disc disease, history of deep vein thrombosis, and factor V
Leiden deficiency. (ECF No. 11, Transcript of Administrative Record (“R.”) 32.) The
ALJ further determined that Plaintiff did not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed
impairments. (R. 32-33.)

The ALJ determined that Plaintiff had the residual

functional capacity to perform sedentary work with certain restrictions. (R. 33.)
Additional record evidence will be discussed in this Opinion and Order as necessary
to the Court’s resolution of Plaintiff’s single objection.
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)(C). 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
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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, 2015) (citing Howard v. Secretary of Health & Human
Services, 932 F.2d 505, 509 (6th Cir. 1991)).
In reviewing the findings of the ALJ, the Court is limited to determining
whether those findings are “supported by substantial evidence” and made “pursuant
to proper legal standards.” See Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th
Cir. 2007) (citing 42 U.S.C. § 405(h) and Cutlip v. Sec’y of Health and Human Servs.,
25 F.3d 284, 286 (6th Cir. 1994)). “Substantial evidence is ‘such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.’” Kyle v. Comm’r
of Soc. Sec., 609 F.3d 847, 854 (6th Cir. 2010) (quoting Lindsley v. Comm’r of Soc.
Sec., 560 F.3d 601, 604 (6th Cir. 2009)); see also McGlothin v. Comm’r of Soc. Sec.,
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299 F. App’x 516, 522 (6th Cir. 2008) (recognizing that substantial evidence is “more
than a scintilla of evidence but less than a preponderance”) (internal quotation marks
omitted). “If the Commissioner’s decision is supported by substantial evidence, [the
court] must defer to that decision, ‘even if there is substantial evidence in the record
that would have supported an opposite conclusion.’” Colvin v. Barnhart, 475 F.3d
727, 730 (6th Cir. 2007) (quoting Longworth v. Comm’r of Soc. Sec. Admin., 402 F.3d
591, 595 (6th Cir. 2005)).
As to whether proper legal criteria were followed, a decision of the SSA
supported by substantial evidence will not be upheld “where the SSA fails to follow
its own regulations and where that error prejudices a claimant on the merits or
deprives the claimant of a substantial right.” Bowen v. Comm’r of Soc. Sec., 478 F.3d
742, 746 (6th Cir. 2007) (citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-47
(6th Cir. 2004)).
“This Court does not try the case de novo, nor resolve conflicts in the evidence,
nor decide questions of credibility.” Cutlip, 25 F.3d at 286. “It is of course for the
ALJ, and not the reviewing court, to evaluate the credibility of witnesses, including
that of the claimant.” Rogers, 486 F.3d at 247. See also Cruse v. Comm’r of Soc. Sec.,
502 F.3d 532, 542 (6th Cir. 2007) (noting that the “ALJ’s credibility determinations
about the claimant are to be given great weight, ‘particularly since the ALJ is charged
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with observing the claimant’s demeanor and credibility’”) (quoting Walters v. Comm'r
of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997)).
“Judicial review of the Secretary’s findings must be based on the record as a
whole.” Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001)).
Therefore, “[b]oth the court of appeals and the district court may look to any evidence
in the record, regardless of whether it has been cited by the [ALJ].” Id. (citing Walker
v. Sec’y of Health and Human Services, 884 F.2d 241, 245 (6th Cir. 1989)). See also
Conley v. Comm’r of Soc. Sec., No. 13-cv-13072, 2015 WL 404229, at *10 (E.D.
Mich. Jan. 29, 2015) (“The court must examine the administrative record as a whole,
and may look to any evidence in the record, regardless of whether it has been cited by
the ALJ.”).
“[A]n 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.” Kornecky
v. Comm’r of Soc. Sec., 167 F. App’x 496, 508 (6th Cir. 2006) (quoting Loral Defense
Systems-Akron v. N.L.R.B., 200 F.3d 436, 453 (6th Cir. 1999)).
III.

ANALYSIS
Plaintiff’s objection is largely a cut and paste of his summary judgment brief
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and raises the following single objection to the Magistrate Judge’s R&R which, as
discussed infra, the Court overrules:
“The Magistrate Judge erred in providing post hoc rationale for the
ALJ’s complete lack of analysis of any Listed Impairments.”
Plaintiff argues that the ALJ’s Step Three discussion of whether Plaintiff’s
severe impairments meet or medically equal Listings 1.04 and/or 4.11 was not
supported by substantial evidence and urges this Court to conclude that the Magistrate
Judge engaged in impermissible post hoc rationalization for the ALJ’s failed analysis.
The Magistrate Judge correctly observed that “[a] claimant’s impairment must meet
every element of a Listing before the Commissioner may conclude that [he] is
disabled at Step 3 of the sequential evaluation process,” and the claimant bears the
burden to prove that each of the elements is satisfied. (R&R 13, PgID 983.) The
Magistrate Judge further correctly notes that “it is well established that the Court may
look at the rest of the ALJ’s decision in order to determine whether substantial
evidence supports the ALJ’s Step Three determination.” (R&R 13-14, PgID 983-84.)
And finally, the Magistrate Judge applied the well accepted notion that “an ALJ’s
failure to articulate Step 3 findings is harmless where concrete factual and medical
evidence is apparent in the record and shows that even if the ALJ had made the
required findings, the ALJ would have found the claimant not disabled. . . .” (R&R
14, PgID 984.) As another Court in this District observed:
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Plaintiff argues that the magistrate judge erred in conducting her own
“post hoc” analysis of the record and substituting her analysis for the
ALJ's. This objection is also without merit. Plaintiff's objection
misconstrues the report and recommendation. In the report, the
magistrate is not engaged in impermissible post hoc analysis, but has
merely set forth the challenged listings to illustrate how the record has
not raised “a substantial question as to whether the claimant could
qualify as disabled under a listing[.]” Sheeks [v. Comm’r of Soc. Sec.],
544 Fed. Appx. 639, [641 (6th Cir. 2013)] (quoting Abbott [v. Sullivan,]
905 F.2d 918], 925 [(6th Cir. 1990)].
Kohls v. Comm’r of Soc. Sec. , No. 15-cv-11554, 2016 WL 4523573, at *3 (E.D.
Mich. Aug. 30, 2016).
In the objections, Plaintiff does not dispute any of these legal principles. Nor
does Plaintiff “point to specific evidence that demonstrates he reasonably could meet
or equal every requirement of the listing.” Smith-Johnson v. Comm’r of Soc. Sec., 579
F. App’x 426, 432 (6th Cir. 2014). “For a claimant to show that his impairment
matches a listing, it must meet all of the specified medical criteria.” Id. (internal
quotation marks and citation omitted). “An impairment that manifests only some of
the criteria, no matter how severely, does not qualify.” Id. Indeed, Plaintiff’s
objection and the record demonstrate that just the opposite is evident here. Listing
1.04 relating to disorders of the spine expressly requires “evidence of nerve root
compression” characterized by a number of associated physical manifestations. (R&R
16, PgID 985) (citing 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04). Plaintiff was also
required to demonstrate that these abnormal physical findings were simultaneously
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present for a period of at least 12 months. (Id.) (citing 20 C.F.R. Pt. 404, Subpt. P,
App. 1, § 1.00D.) Here, Plaintiff concedes that Plaintiff’s “nerve root abutment” does
not amount to impingement or compression as required by Listing 1.04A. “While
there is not exact “impingement” as Subpart A requires to meet Listing 1.04A, there
is abutment to the nerve root, which can affect the nerve significantly.” (Objs. 9,
PgID 1023.) As the Magistrate Judge observed, “nerve-root abutment does not satisfy
Listing 1.04A’s requirement of nerve-root compression.” (R&R 16, PgID 985)
(quoting Adams v. Comm’r of Soc. Sec., No. 13-11132, 2014 WL 897381, at *9 n. 5
(E.D. Mich. March 6, 2014)). The Magistrate Judge did not err in reviewing the
record evidence to conclude that the Plaintiff has failed to demonstrate how he meets
or medically equals Listing 1.04A.
The same holds true with respect to Plaintiff’s claim that the Magistrate Judge
erred in concluding that Plaintiff did not produce sufficient evidence to demonstrate
that he suffered from chronic venous insufficiency of a lower extremity and therefore
meets or medically equals Listing 4.11. Listing 4.11 requires evidence of “extensive
brawny edema” in at least two-thirds of the leg OR “superficial varicosities, stasis
dermatitis, AND either recurrent ulceration or persistent ulceration that has not healed
following at least 3 months of prescribed treatment.” (R&R 18, PgID 987) (quoting
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 4.11.) As the Magistrate Judge correctly
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observed, although Plaintiff was assessed in April and May 2013 as having deep vein
thrombosis, later studies determined that the condition no longer persisted. (R&R 18,
PgID 987.) Plaintiff does not contest in his objections that testing in February 2014,
showed no evidence of arterial insufficiency in either lower extremity and testing in
June and September 2014, was negative for deep venous thrombosis. In fact, Plaintiff
expressly admits in his objection that “a venous Doppler did not reveal deep venous
thrombosis” as of September 2014, but urges the Court to credit Plaintiff’s testimony
at the administrative hearing about what doctors allegedly told him during an ER visit
and to rely on a reported history of a genetic disposition to deep vein thrombosis, to
find that Plaintiff nonetheless meets or equals Listing 4.11, despite the record
evidence suggesting the opposite. (Objs. 7-8, PgID 1021-22.) This evidence cannot
substitute for the documented medical findings required to meet or medically equal
the specific criteria for Listing 4.11. Nor does Plaintiff contest the Magistrate Judge’s
conclusion that Plaintiff presented no evidence of “brawny edema” involving at least
two-thirds of the leg or superficial varicosities and recurrent or persistent ulceration
that has failed to heal for a 3 month period. (R&R 18-19, PgID 987-88.)

The

Magistrate Judge correctly concluded that Plaintiff has “wholly failed to produce any
evidence, as is his burden, to show that he meets or medically equals Listing 4.11.”
IV.

CONCLUSION
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The Magistrate Judge did not engage in impermissible post hoc rationalization
and did not err in concluding that Plaintiff has failed to make “the threshold showing
of evidence supporting the listing[s].” Smith-Johnson, 579 F. App’x at 433 n. 5. The
Magistrate Judge correctly concluded that the ALJ’s opinion is supported by
substantial evidence. Accordingly, the Court:
1)

OVERRULES Plaintiff’s Objections (ECF No. 22);

2)

ADOPTS Magistrate Judge Patti’s January 23, 2019 Report and
Recommendation (ECF No. 18);

3)

DENIES Plaintiff’s Motion for Summary Judgment (ECF No. 15)
and GRANTS the Defendant’s Motion for Summary Judgment
(ECF No. 17); and

4)

AFFIRMS the decision of the Commissioner.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: March 22, 2019

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