Sloan v. Social Security

Filing 29

ORDER Adopting Report and Recommendation Granting 23 Motion for Summary Judgment filed by Commissioner of Social Security and Denying 17 Motion for Summary Judgment filed by Monica Inger Sloan Signed by District Judge Marianne O. Battani. (KDoa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MONICA INGER SLOAN,
Plaintiff,
Case No. 17-11150
v.
Hon. Marianne O. Battani
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_____________________________________/
OPINION AND ORDER OVERRULING PLAINTIFF’S OBJECTIONS
AND ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
I.

INTRODUCTION
Before the Court are objections filed by Plaintiff Monica Inger Sloan (Dkt. 26) to

Magistrate Judge Elizabeth A. Stafford’s March 29, 2018 Report and Recommendation
(“R & R”) (Dkt. 25). In the R & R, the Magistrate Judge recommends that the Court
deny Plaintiff’s motion for summary judgment (Dkt. 17), grant the Defendant
Commissioner of Social Security’s motion for summary judgment (Dkt. 23), and affirm
the challenged decision of the Defendant Commissioner. For the reasons discussed
below, the Court OVERRULES Plaintiff’s objections and ADOPTS the Magistrate
Judge’s R & R in its entirety.

II.

STATEMENT OF FACTS
Neither party has objected to the Magistrate Judge’s statement of the

background facts concerning Plaintiff’s claim for Social Security disability insurance
benefits, her medical and treatment history, and her testimony at the administrative
hearing. Accordingly, the Court adopts these unchallenged portions of the R & R.
III.

STANDARD OF REVIEW
A district court must conduct a de novo review of any portion of a magistrate

judge’s R & R to which a party objects. 28 U.S.C. § 636(b)(1). The 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). The requirement of de novo review “is a
statutory recognition that Article III of the United States Constitution mandates that the
judicial power of the United States be vested in judges with life tenure.” United States v.
Shami, 754 F.2d 670, 672 (6th Cir. 1985). Accordingly, Congress enacted 28 U.S.C. §
636(b)(1) to “insure[ ] that the district judge would be the final arbiter” of matters referred
to a magistrate judge. Flournoy v. Marshall, 842 F.2d 875, 878 (6th Cir. 1988).
The Court must affirm the decision of the Defendant Commissioner so long as “it
is supported by substantial evidence and was made pursuant to proper legal
standards.” Rogers v. Commissioner of Social Security, 486 F.3d 234, 241 (6th Cir.
2007). “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, 486 F.3d at 241 (internal quotation
marks and citation omitted). If the Commissioner’s decision is supported by substantial
evidence, “it must be affirmed even if the reviewing court would decide the matter
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differently, and even if substantial evidence also supports the opposite conclusion.”
Cutlip v. Secretary of Health & Human Services, 25 F.3d 284, 286 (6th Cir. 1994)
(citations omitted).
When determining whether the Defendant Commissioner’s factual findings are
supported by substantial evidence, the Court confines its examination to the
administrative record considered as a whole. Wyatt v. Secretary of Health & Human
Services, 974 F.2d 680, 683 (6th Cir. 1992) (internal quotation marks and citation
omitted). There is no requirement, however, that either the Commissioner or this Court
must discuss every piece of evidence in the record. Kornecky v. Commissioner of
Social Security, No. 04-2171, 167 F. App’x 496, 508 (6th Cir. Feb. 9, 2006). Further, in
reviewing the Defendant Commissioner’s resolution of Plaintiff’s claim for benefits, this
Court does not “try the case de novo, resolve conflicts in evidence, or decide questions
of credibility.” Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007).
IV.

ANALYSIS
A.

Plaintiff’s First Objection

Plaintiff advances two objections to the R & R. First, she takes issue with the
decision of the Administrative Law Judge (“ALJ”) to give “significant weight” to the
opinion of a non-examining state agency consultant, R.H. Digby, M.D., (see Admin.
Record at 30), and she contends that the Magistrate Judge misapplied the pertinent
Sixth Circuit precedent in upholding the ALJ’s determination on this point. Specifically,
Plaintiff points to Miller v. Commissioner of Social Security, 811 F.3d 825, 834 (6th Cir.
2016), in which the Sixth Circuit considered the authority of an ALJ to “assign[] greater
weight to a state agency consultant’s opinion than to that of a treating or examining
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source.” The court recognized that this may be permissible “under certain
circumstances,” such as “where the non-examining source’s opinion ‘is based on a
review of a complete case record.’” Miller, 811 F.3d at 834 (quoting Social Security
Ruling 96-6p, 1996 WL 374180, at *3 (July 2, 1996)); see also Fisk v. Astrue, No. 064677, 253 F. App’x 580, 585 (6th Cir. Nov. 9, 2007). However, the Sixth Circuit
emphasized that when this is not the case — i.e., when “the non-examining source did
not review a complete case record” — the reviewing court “require[s] some indication
that the ALJ at least considered these facts before giving greater weight to an opinion
from the non-examining source.” Miller, 811 F.3d at 834 (internal quotation marks and
citations omitted); see also Fisk, 253 F. App’x at 585. In the case before the court, the
“ALJ gave no such indication,” and the court therefore concluded that the ALJ “did not
provide a sufficient explanation for assigning significant weight to a non-examining
source’s opinion.” Miller, 811 F.3d at 834.
In this case, all are agreed that Dr. Digby did not have the complete case record
available to him at the time he issued his November 18, 2014 assessment of Plaintiff’s
physical residual functional capacity. In particular, within a short time after Dr. Digby’s
assessment, a lumbar MRI was performed on November 23, 2014, (see Admin. Record
at 280-81), and Plaintiff underwent electrodiagnostic testing on December 19, 2014,
(see id. at 272-74). Nonetheless, the Magistrate Judge concluded that the ALJ satisfied
the dictates of Miller — and thus acted appropriately in according significant weight to
the opinion of Dr. Digby — by “accurately summariz[ing] the results of both tests” that
were performed after Dr. Digby issued his assessment, and by “impos[ing] greater
limitations than those recommended by Dr. Digby based on [the ALJ’s] complete review
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of the record.” (R & R at 10-11.) Plaintiff, on the other hand, reads Miller as mandating
that the ALJ must have indicated in some way and taken “into account the fact that the
medical opinion [to which] he was giving significant weight was not based upon a
complete medical record.” (Dkt. 26, Plaintiff’s Objections at 2.) In Plaintiff’s view,
because the ALJ’s decision does not sufficiently reflect his recognition and appreciation
that Dr. Digby’s assessment was based on a review of a less-than-complete record, the
ALJ was not entitled to give greater weight to the opinion of this non-examining source
than the opinions of Plaintiff’s treating or examining physicians.
The disposition of Plaintiff’s objection therefore turns upon the proper
interpretation of Miller and the other relevant Sixth Circuit precedents. Unfortunately,
Miller itself is not entirely clear on this point. As noted, the court in that case stated that
“[w]here the non-examining source did not review a complete case record, we require
some indication that the ALJ at least considered these facts before giving greater
weight to an opinion from the non-examining source.” Miller, 811 F.3d at 834 (emphasis
added) (internal quotation marks and citations omitted). Yet, the court does not explain
what “these facts” are that the ALJ must consider. The Magistrate Judge identified the
relevant facts as those that lie outside the portion of the case record that the nonexamining source, Dr. Digby, reviewed in rendering his opinion. (See R & R at 10-11.)
Plaintiff, however, construes Miller’s reference to “these facts” as dictating that if an ALJ
elects to give significant weight to the “opinion of a one-time examiner who lack[s] full
knowledge of the record,” the ALJ’s decision must “ma[k]e it clear that he recognized
that shortcoming” in the non-treating source’s opinion. (Plaintiff’s Objections at 2-3.)

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The Court finds that the Magistrate Judge has advanced the better reading of
Miller. First and foremost, when the court in Miller referred to “these facts” that the ALJ
must consider, it was quoting from the Sixth Circuit’s earlier decision in Fisk, 253 F.
App’x at 585. In that case, the ALJ gave greater weight to the opinion of a state agency
medical consultant than to that of the claimant’s treating physician. As in Miller, the
court in Fisk recognized that this was permissible if, for example, “the State agency
medical consultant’s opinion is based on a review of a complete case record that
provides more detailed and comprehensive information than what was available to the
[claimant’s] treating source.” Fisk, 253 F. App’x at 585 (internal quotation marks,
alterations, and citation omitted). Yet, the court found that the opposite was true in that
case: “where, as here, the treating source referred [the claimant] to numerous sources
and made recommendations that accounted for a year’s worth of specialists’ opinions,
we require some indication that the ALJ at least considered these facts before giving
greater weight to an opinion that is not based on a review of the complete case record.”
253 F. App’x at 585 (internal quotation marks and citations omitted). As used in Fisk,
the phrase “these facts” seemingly refers to the portion of the record that was available
to the treating physician but not the non-examining state agency medical consultant.
Because the non-examining consultant had access to less information than the treating
physician, the court insisted that the ALJ must account for this informational disparity
before giving greater weight to the opinion of the non-examining source, and it
concluded that the ALJ had not done so. Fisk, 253 F. App’x at 585-86.
Other case law in this Circuit confirms this understanding of Miller. In Gibbens v.
Commissioner of Social Security, No. 15-2364, 659 F. App’x 238, 247-48 (6th Cir. Aug.
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16, 2016), for example, the Sixth Circuit held that the ALJ had properly credited the
opinion of a non-examining state agency consultant over the more restrictive opinion of
the plaintiff’s treating physician, despite the fact that the plaintiff continued to receive
medical treatment for several years past the date of the state agency consultant’s
assessment. In so ruling, the court held that the ALJ had “satisfied th[e] requirement”
set forth in Miller, where “the ALJ’s own analysis clearly spanned the entire record” and
“was informed by both [the state agency consultant’s] assessment and the findings of [a
prior] complete physical examination, as well as medical evidence later entered into the
record.” Gibbens, 659 F. App’x at 248. Similarly, in Bryant v. Commissioner of Social
Security, No. 17-10919, 2018 WL 3853599, at *1 (E.D. Mich. Aug. 14, 2018), the court
held that the ALJ had sufficiently accounted for the fact that a state agency consultant
had not reviewed the complete record in assessing the plaintiff’s psychological
limitations, where (i) “the ALJ recognized the dates of the various medical opinions,”
and thus “knew the consultant was not looking at a complete record because the
consultant’s report predated other opinions in the record,” and (ii) “the ALJ did not
wholesale adopt the consultant’s opinion,” but instead rendered a decision that made it
clear that “subsequent records were reviewed.” See also Bailey-Vassoff v. Berryhill,
No. 17-12090, 2018 WL 4292400, at *5-*6 (E.D. Mich. Sept. 10, 2018) (upholding the
ALJ’s reliance on the opinion of a non-examining state agency physician who “did not
review the complete case record,” where it was evident that the ALJ had “carefully
considered all of plaintiff’s medical records”); Downing v. Berryhill, No. 16-10321, 2017
WL 2214591, at *3 (E.D. Mich. March 16, 2017) (holding that the ALJ was entitled to
rely on the opinion of a state agency consultant that predated the opinions of two
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treating physicians, where “the ALJ recounted the evidence that followed [the
consultant’s] opinion” and incorporated an additional limitation based on one of the later
reports).
Against this backdrop, the Court concurs in the Magistrate Judge’s determination
that the ALJ met the dictates of Miller by “accurately summarizing the results” of the two
tests that post-dated Dr. Digby’s opinion as part of “his review of the medical record,”
and by “impos[ing] greater limitations than those recommended by Dr. Digby based on
[this] complete review of the record.” (R & R at 10-11.) Although Plaintiff takes issue
with the Magistrate Judge’s understanding of what Miller requires, she acknowledges
that the ALJ did, in fact, “analyze[] the additional evidence” placed into the medical
record after Dr. Digby issued his opinion. (Plaintiff’s Objections at 3.) Moreover, the
Magistrate Judge correctly observed that Plaintiff has failed to show how the MRI and
electrodiagnostic tests conducted after Dr. Digby’s report might indicate that Plaintiff’s
impairments had worsened. (See id. at 11.) Even accepting Plaintiff’s assertion that
these tests revealed “significant findings” and diagnoses, (Plaintiff’s Objections at 3), the
Magistrate Judge aptly explained that such diagnoses “say[] nothing about [any]
disabling effects” resulting from the conditions disclosed in the tests, (R & R at 11).
Accordingly, the Court overrules Plaintiff’s first objection to the R & R.
B.

Plaintiff’s Second Objection

Plaintiff’s remaining objection to the R & R is more readily resolved. In Plaintiff’s
view, the Magistrate Judge erred in determining that the ALJ sufficiently accounted for
the opinion of consultative examiner R. Scott Lazzara, M.D., in formulating Plaintiff’s
residual functional capacity (“RFC”). As recognized by the Magistrate Judge, the ALJ
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erred in his reading of Dr. Lazzara’s November 6, 2014 report, asserting that this
physician “did not offer an opinion regarding the claimant’s physical ability to perform
basic work activities.” (Admin. Record at 30.) In fact, Dr. Lazzara’s report does “include
a chart with a list of abilities and [an] indicat[ion] whether or not [Plaintiff] could perform
each.” (R & R at 8 (citing Admin. Record at 263-64).) Nonetheless, the Magistrate
Judge concluded that the ALJ’s treatment of Dr. Lazzara’s opinion was supported by
substantial evidence, where (i) it was “far from clear that Dr. Lazzara’s opinion supports
a finding that [Plaintiff] requires a more restrictive RFC,” and (ii) Dr. Lazzara was “not a
treating physician,” and the ALJ thus “was not required to defer to his opinion.” (R & R
at 11-12.) Plaintiff now challenges this ruling, arguing that the Magistrate Judge has
“misse[d] the point of [her] argument” — namely, that the ALJ cannot be said to have
properly accounted for Dr. Lazzara’s opinion when he seemingly failed “to realize that
Dr. Lazzara even rendered findings” as to Plaintiff’s need for “a walking aid to reduce
pain.” (Plaintiff’s Objections at 4.)
This objection is defeated by a careful reading of the ALJ’s decision. According
to Plaintiff, the ALJ wholly failed to realize that Dr. Lazzara offered an opinion regarding
Plaintiff’s need for an assistive device to reduce her pain while walking, and instead
determined that the only “evidence as to [P]laintiff’s need for a cane came from [P]laintiff
herself.” (Id. at 4-5.) Yet, while it is true that the ALJ’s decision twice refers to Plaintiff’s
own testimony that “she requires the use of a cane for prolonged ambulation,” the ALJ
also stated that Dr. Lazzara “recommended the use of a cane for pain control.” (Admin.
Record at 30.) This is precisely what Dr. Lazzara wrote at the conclusion of his report
— i.e., that “[t]he use of a cane for pain control would be helpful,” (id. at 269) — and he
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also checked boxes earlier in this report indicating that “clinical evidence support[s] the
need for [a] walking aid” in order to “[r]educe [p]ain,” (id. at 264).
Thus, there is no basis for Plaintiff’s assertion that the ALJ failed to “consider
[Dr. Lazzara’s] opinion at all,” (Plaintiff’s Objections at 5), in determining, as part of
Plaintiff’s RFC, that Plaintiff was “limited to jobs that can be performed while using a
handheld assistive device for uneven terrain or prolonged ambulation,” (Admin. Record
at 26). Rather, for the reasons stated in the R & R, the ALJ sufficiently accounted for
Dr. Lazzara’s opinion on this point in formulating Plaintiff’s RFC. (See R & R at 11-13.)
To the extent that the ALJ did not adopt this opinion in full, the Magistrate Judge
correctly observed that he was not obligated to do so, but instead “was required to
consider the consistency of [Dr. Lazzara’s] opinion with the record as a whole.” (Id. at
12.) The Court agrees with the Magistrate Judge that the ALJ discharged this duty.

V.

CONCLUSION
The Court has reviewed de novo the entire record and the pleadings, giving

particular attention to those portions of the record relevant to Plaintiff's objections. 28
U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b)(3). For the reasons stated above, the
Court ADOPTS the Magistrate Judge’s March 29, 2018 report and recommendation
(Dkt. 25) in its entirety, and OVERRULES Plaintiff's April 12, 2018 objections to the
report and recommendation (Dkt. 26). Accordingly, Plaintiff’s motion for summary

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judgment (Dkt. 17) is DENIED, Defendant’s motion for summary judgment (Dkt. 23) is
GRANTED, and the challenged decision of the Defendant Commissioner is AFFIRMED
pursuant to sentence four of 42 U.S.C. § 405(g).
IT IS SO ORDERED.

Date: February 6, 2019

s/Marianne O. Battani
MARIANNE O. BATTANI
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their
respective email addresses or First Class U.S. mail to the non-ECF participants on February 6, 2019.
s/ Kay Doaks
Case Manager

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