Malm v. Commissioner of Social Security

Filing 22

ORDER denying 14 Motion for Summary Judgment; granting 18 Motion for Summary Judgment; adopting 19 Report and Recommendation and overruling 20 Objections. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EVA MALM,

Case No. 17-11241
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,

U.S. MAGISTRATE JUDGE
DAVID R. GRAND

Defendant.
/
ORDER ADOPTING REPORT AND RECOMMENDATION [19]; OVERRULING
PLAINTIFF’S OBJECTIONS [20]; DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT [14]; AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT [18]
Plaintiff Eva Malm 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 [Dkt. 14] on August 6, 2017.
Defendant filed a Motion for Summary Judgment [18] on November 4, 2017.
On March 23, 2018, the Magistrate Judge issued a Report and
Recommendation (“R&R”) [19] recommending that the Court grant Defendant’s
Motion for Summary Judgment and deny Plaintiff’s Motion for Summary
Judgment. Plaintiff timely filed her Objections [20] on April 2, 2018.
For the reasons stated below, the Court ADOPTS the Report and
Recommendation [19]. Plaintiff’s Objections to the Report and Recommendation

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[20] are OVERRULED. Plaintiff’s Motion for Summary Judgment [14] is
DENIED. Defendant’s Motion for Summary Judgment [18] is GRANTED.
FACTUAL BACKGROUND
The R&R summarized the record as follows:
A. Background
Malm filed prior applications for DIB and SSI on March 9, 2011. (Tr. 78).
On March 13, 2013, ALJ Andrew Henningfeld issued a decision denying
those applications. (Tr. 78-87). On June 24, 2014, the Appeals Council
denied review. (Tr. 92-96).
Malm then filed new applications for DIB and SSI on August 11, 2014,
alleging disability as of March 14, 2013. (Tr. 205-17). At the time of that
alleged onset date, Malm was 47 years old. (Tr. 244). She had completed
high school but had no further education. (Tr. 250). Malm has prior work
history as a laborer and press operator, but she stopped working in January
2014 because of her medical conditions. (Tr. 249-50). She alleges disability
as a result of diabetes (and resulting neuropathy), arthritis, fibromyalgia, and
left ankle pain. (Tr. 249).
After Malm’s August 2014 applications for SSI and DIB were denied at the
initial level on September 9, 2014 (Tr. 126-29, 136-39), she timely requested
an administrative hearing, which was held on November 12, 2015, before
ALJ Terry Banks. (Tr. 36-74). Malm, who was represented by attorney
Nicole Thompson, testified at that hearing, along with vocational expert
Joseph Thompson. (Id.). On March 7, 2016, ALJ Banks issued a partially
favorable written decision. (Tr. 16-31). Specifically, ALJ Banks concluded
that Malm was not disabled prior to January 11, 2016; however, she became
disabled as of that date and continued to be disabled through the date of the
decision. (Tr. 30). On February 22, 2017, the Appeals Council denied
review. (Tr. 1-5). Malm timely filed for judicial review of the final decision
on April 20, 2017. (Doc. #1).

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B. Relevant Medical Evidence1
On May 17, 2013, Malm was seen by Toms Mathew, M.D. for diabetes,
arthralgia, and paresthesia. (Tr. 313). An examination of the upper
extremities revealed arthritic changes in the DIP joint (finger), but no other
abnormalities. (Tr. 314). She retained full strength, bulk, and tone in both
upper extremities, and both hands were non-tender without crepitus or
defects. (Id.). At a follow-up visit to Dr. Mathew on July 29, 2013,
examination results remained the same, aside from diminished sensation in
her hands. (Tr. 325-26). Dr. Mathew saw Malm on at least eleven more
occasions between October 2013 and September 2015; at each of these
visits, there were no positive examination findings related to her hands or
fingers. (Tr. 329, 339, 345, 350, 491, 497, 501, 505, 509, 513, 524).
Beginning in February 2014, Malm was seen by Zeinab Saleh, M.D., with
complaints of musculoskeletal pain. (Tr. 353-65). She complained of
swelling and tingling in her hands, but noted that she had been taking
Tylenol #3 with some relief. (Tr. 353). On examination, Malm had no
swelling in her elbows, wrists, or finger joints. (Tr. 354). Her hand grip
strength was 4/5, and there was no sign of synovitis. (Id.). On March 6,
2014, Malm reported that she had been stable, and a physical examination of
her hands remained unchanged. (Tr. 360-61). Dr. Saleh prescribed Neurontin
and Tramadol. (Tr. 362). On August 1, 2014, Malm reported that she had
stopped taking this medication after one month and was taking Tylenol #3
instead. (Tr. 363). On examination, her hand grip strength remained 4/5,
muscle strength and sensation remained intact, and she was again started on
Neurontin. (Tr. 364-65).
Malm was in a car accident in November 2014, after which she began
treating with Judy Macy, M.D., a physical medicine and rehabilitation
specialist. (Tr. 480-81). On December 3, 2014, Malm reported pain in her
neck and upper back; difficulty moving her cervical spine, upper back, and
lower back; and numbness and tingling in her hands and feet. (Id.). She was
diagnosed with cervical and thoracic spine injuries, and Dr. Macy issued a
note saying she was unable to work in the factory job she had recently
started and needed help with household replacement services. (Id.). In both
1

Because Malm only challenges ALJ Banks’ findings regarding her ability to finger and
handle, the Court will focus primarily on the medical evidence related to her hands and
fingers.

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December 2014 and January 2015, Malm saw Dr. Macy with continued
complaints of pain in her neck and back, but no complaints related to her
hands. (Tr. 474, 479). On both occasions, Dr. Macy again noted that Malm
was unable to work. (Id.).
On February 10, 2015, Malm returned to Dr. Macy, reporting that she had a
great deal of pain in her neck and spine, which radiated into her extremities
(right more than left). (Tr. 475). Noting that Malm’s neck and right upper
extremity seemed to hurt her the most, Dr. Macy ordered an EMG. (Id.). At
her next visit, on February 24, 2015, Malm had pain in the back of her neck
radiating to both arms and right shoulder, with numbness and tingling in the
arms. (Tr. 469). Along with problems moving both shoulders, Malm also
had “atrophy of the right opponens pollicis muscle more so than the left.”
(Id.). According to Dr. Macy, EMG testing of the bilateral upper extremities
revealed “[v]ery severe right carpal tunnel syndrome with absence of the
right median sensory distal latency and evidence of axonal loss in the right
opponens pollicis muscle and a large in the right median motor distal
latency”; moderate left carpal tunnel syndrome; and “evidence of bilateral
cervical radiculopathy… mostly in the left C6 distribution, but also affecting
the right upper extremity as well and approximately in the right C6
distribution.” (Tr. 470).
On March 10, 2015, Malm continued to report pain in her neck, mid-back,
and lower back, as well as her right shoulder. (Tr. 471). There were no
complaints related to her hands. (Id.). Dr. Macy referred Malm for a surgical
opinion regarding her shoulder. (Id.).
On April 2, 2015, Malm saw Jerome Ciullo, M.D. for a surgical consult
related to her right shoulder. (Tr. 403-06). Malm complained to Dr. Ciullo of
a stiff and painful neck, diabetes, and leg and ankle swelling, but did not
complain about her hands. (Tr. 404). During the examination, Malm
reported being able to perform the following activities as normal or with
only a mild compromise: use her back pocket, rectal hygiene, wash opposite
underarm, eat with a utensil, comb hair, use hand/arm at shoulder level,
carry 10-15 pounds, dress, and reach overhead. (Tr. 403). Dr. Ciullo
diagnosed Malm with right shoulder A/C joint arthritis, rotator cuff tear,
biceps tendon partial detachment, and overuse of the neck muscles to
compensate. (Tr. 406). He recommended outpatient surgery. (Id.).

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Malm returned to see Dr. Macy in April, May, and June 2015, complaining
each time of neck and back pain. (Tr. 466-68). She did not complain about
her hands at any of these visits. (Id.). On August 13, 2015, Malm again saw
Dr. Macy, complaining of pain in her neck and lower back, as well as
numbness and tingling radiating from her neck down both arms. (Tr. 465).
C. The ALJ’s Application of the Disability Framework Analysis
...
Following the five-step sequential analysis, the ALJ found Malm disabled as
of January 11, 2016, the date she attained the age of 55, but not disabled
between her alleged onset date of March 14, 2013, and January 10, 2016.
(Tr. 16-31). At Step One, the ALJ found that Malm did not engage in
substantial gainful activity between her alleged onset date (March 14, 2013)
and her date last insured (March 31, 2015). (Tr. 19). At Step Two, the ALJ
concluded that she has the severe impairments of diabetes mellitus,
peripheral neuropathy, degenerative disc disease, right torn rotator cuff,
carpal tunnel syndrome, and osteoarthritis. (Id.). At Step Three, the ALJ
found that Malm’s impairments, whether considered alone or in
combination, do not meet or medically equal a listed impairment. (Tr. 21).
The ALJ then assessed Malm’s residual functional capacity (“RFC”),
concluding that, since March 14, 2013, she has been capable of performing
sedentary work with the following additional limitations: cannot stand or
walk for more than ten minutes in any given hour; can never use foot
controls; can never climb ladders, ropes, or scaffolds, or balance on uneven,
narrow, or slippery surfaces; can occasionally climb ramps and stairs, stoop,
crouch, kneel, and crawl; can frequently handle and finger; can never reach
overhead with the right arm; cannot tolerate exposure to concentrated levels
of atmospheric conditions, such as fumes, noxious odors, gases, and poor
ventilation; cannot use vibrating objects or surfaces to complete tasks;
cannot perform work that requires far acuity; limited to unskilled work,
defined as work that needs little to no judgment to perform simple duties;
work must be routine and repetitive involving only a few, if any, changes in
the work setting; and cannot tolerate exposure to hazards such as dangerous
moving mechanical parts or machinery that could cause bodily injury or
work in high, exposed places. (Tr. 23).

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At Step Four, the ALJ found that, since March 14, 2013, Malm has been
incapable of performing her past relevant work. (Tr. 28). At Step Five, the
ALJ determined, based in part on testimony provided by the vocational
expert in response to hypothetical questions, that, prior to January 11, 2016,
Malm was capable of performing the jobs of order clerk (100,000 jobs
nationally), bench worker (12,000 jobs), and assembler (24,000 jobs). (Tr.
29-30). As a result, the ALJ concluded that, prior to January 11, 2016, the
date on which Malm attained age 55, she was not disabled under the Act.
(Id.).
STANDARD OF REVIEW
The Court reviews “specific written objections” to a Magistrate Judge’s
Report and Recommendation on a dispositive motion de novo. See 28 U.S.C.
§636(b)(1)(c). Vague, generalized objections are not entitled to a de novo review.
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. “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). Similarly, an objection that simply disagrees with the
Magistrate Judge’s conclusion “without explaining the source of the error” is not a
valid objection.” Howard v. Sec’y of Health and Human Servs., 932 F.2d 505, 509
(6th Cir. 1991).
Judicial review of a decision by a Social Security ALJ is limited to
determining whether the factual findings are supported by substantial evidence and
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whether the ALJ employed the proper legal standards. Richardson v. Perales, 402
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). 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); see also Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986).
ANALYSIS
Plaintiff’s objections are somewhat confusing, but it appears that she claims
that the Magistrate Judge erred in the following ways:

I.

 By determining that the ALJ properly relied on the opinion of Dr.
Sonia Ramirez-Jacobs, M.D.;
 By concluding that the ALJ properly accounted for her carpal tunnel
syndrome in the RFC determination; and
 By finding that there was no reversible error in the consideration of
Dr. Judy Macy, M.D., Plaintiff’s treating source opinion.
Dr. Ramirez-Jacobs’ Opinion
Plaintiff argues that the ALJ was wrong to rely on the opinion of Dr.

Sonia Ramirez-Jacobs, M.D., the state agency medical consultant. Plaintiff
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states that Dr. Ramirez-Jacobs’ opinion is an “administrative opinion” and that
any reliance on it was improper because Dr. Ramirez-Jacobs never considered
Plaintiff’s carpal tunnel syndrome.
Plaintiff provides no explanation or support for her assertion that Dr.
Ramirez-Jacobs’ opinion is an “administrative opinion,” and the Court finds
that Plaintiff has forfeited whatever argument she intended to present for failure
to develop it. See, e.g., Hayward v. Cleveland Clinic Found., 759 F.3d 601, 618
n.9 (6th Cir. 2014) (citing McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir.
1997)). This objection is therefore overruled.
II.

RFC determination
In the second objection, Plaintiff lumps several different arguments

together. Plaintiff asserts that the ALJ failed to account for her “severe
impairment of carpal tunnel syndrome” and that the “ALJ could have ordered a
consultative examination or medical expert to determine [her] functional
limitations.” (Obj. at 2). She also maintains that, despite the fact that ALJ Banks
concluded that carpal tunnel syndrome is a severe impairment, he “incorrectly
decided [Plaintiff’s] limitations . . . based wholly on conservative treatment.”
Id. at 3.
Plaintiff’s arguments are incorrect. ALJ Banks discussed Plaintiff’s
carpal tunnel syndrome multiple times throughout his decision. See, e.g., Tr. 23,
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26, 28. Additionally, the regulations do not require ALJs to order consultative
examinations. See 20 C.F.R. §§ 404.1519a(b), 416.919a(b).
What Plaintiff truly seems to take issue with is ALJ Banks’ adoption of
the RFC formulated by ALJ Henningfeld. She states that neither ALJ
Henningfeld nor Dr. Ramirez-Jacobs considered her carpal tunnel syndrome,
and accordingly ALJ Henningfeld’s RFC assessment – as adopted by ALJ
Banks – is inappropriate.
ALJ Henningfeld denied Plaintiff’s DIB and SSI applications in March
2013. Plaintiff filed new applications in August 2014.
“Absent evidence of an improvement in a claimant’s condition, a
subsequent ALJ” – here, ALJ Banks – “is bound by the findings of a previous
ALJ.” Drummond v. Comm’r of Soc. Sec., 126 F.3d 837, 842 (6th Cir. 1997).
Accordingly, “to avoid application of res judicata, [Plaintiff] must provide
proof that [her] condition has worsened since the date of the prior decision to
such a degree that [s]he is no longer capable of engaging in substantial gainful
activity.” Butka v. Commissioner of Soc. Sec., No. 16-13923, 2018 WL
1442891, at *4 (E.D. Mich. Feb. 7, 2018), report and recommendation adopted,
2018 WL 1425950 (Mar. 22, 2018).
Both ALJ Henningfeld and ALJ Banks accounted for Plaintiff’s
longstanding problems with her hands, which she suffered from prior to her
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carpal tunnel syndrome diagnosis. During the hearing before ALJ Banks,
Plaintiff said that “for years I’ve been told I had neuropathy in my hands.” (Tr.
59). ALJ Henningfeld also noted that Plaintiff had difficulty using her hands,
due in part to “constant numbness and a tingling feeling.” Id. at 84. He also
stated in his decision that Plaintiff suffered “from both mild peripheral
neuropathy and osteoarthritis in her hands.” Id. at 85.
Plaintiff is correct that neither ALJ Henningfeld nor Dr. Ramirez-Jacobs
had the opportunity to consider Plaintiff’s carpal tunnel syndrome. However,
ALJ Banks made note of that in his decision, and altered his evaluation
accordingly. See Tr. 27 (Because Dr. Ramirez-Jacobs “did not have the
opportunity to consider the evidence regarding the claimant’s rotator cuff tear,
degenerative disc disease, or carpal tunnel syndrome,” ALJ Banks only
“incorporated the credible portions of Dr. Ramirez-Jacobs’ opinions.”).
ALJ Banks recognized that Plaintiff “proffered new evidence regarding a
diagnosis of carpal tunnel syndrome,” but correctly determined that it was not
material evidence. Plaintiff took medication as part of her treatment, but did not
undergo splint treatment or carpal tunnel release surgery, nor did she use
compression gloves. (Tr. 26); Kerspilo v. Commissioner of Soc. Sec., No. 1314476, 2015 WL 1469461, at *17 (E.D. Mich. Mar. 19, 2015) (conservative
treatment and absence of surgery were relevant to the credibility analysis). In
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addition, when ALJ Banks asked Plaintiff about her reasons for not working,
Plaintiff said nothing about her carpal tunnel syndrome. In fact, she only
mentioned carpal tunnel syndrome when asked about it by counsel. See
Villarreal v. Secretary of Health & Human Services, 818 F.2d 461, 463 (6th
Cir. 1987) (“the ALJ did not merely depend on [plaintiff’s] demeanor at the
hearing to determine that return to the relevant past light work was possible,”
but also looked to medical records, as well as the fact that “conservative
treatment was successful.”).
Additionally, as the Magistrate Judge explained, Plaintiff’s treatment
records support the ALJ’s findings. Dr. Mathew stated that Plaintiff’s hands
were “non-tender, without crepitus or defects.” (Tr. 314). Dr. Saleh ranked
Plaintiff’s hand grip at a 4/5. Id. at 361. Dr. Macy noted that “[o]f all of the
patient’s pain complaints, [her cervical and thoracic spine injuries] seem to be
what hurt[ ] her the most.” Id. at 481. Furthermore, treatment notes from visits
with Dr. Macy between March 10, 2015 and October 8, 2015 reveal that
Plaintiff did not complain about pain in her hands. Id. at 464-68, 471.
In short, ALJ Banks’ determination is sound because there is “substantial
evidence . . . that there was no worsening or change in condition of impairments
that existed at the time of [ALJ Henningfeld’s] prior decision.” Butka, 2018 WL
1442891, at *5. This objection is overruled.
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III.

Consideration of the treating source opinion

Plaintiff contests the ALJ’s consideration of opinion evidence from Dr.
Macy, Plaintiff’s treating physician. She seems to imply that the ALJ failed to
accord the appropriate weight to Dr. Macy’s opinion.
The problem for Plaintiff, however, is that Dr. Macy never actually gave her
opinion as to Plaintiff’s functional limitations. It is true that Dr. Macy issued “offwork restrictions”; however, a doctor’s “determination that [the patient] is ‘unable
to work’ is not a medical opinion that may be given controlling weight.”
Dutkiewicz v. Commissioner of Social Security, 663 Fed. Appx. 430, 432 (6th Cir.
2016); 20 C.F.R. § 404.1527(d)(1), (3). Moreover, Dr. Macy specifically stated
that Plaintiff could not return to factory-related work; she did not say anything
about performing other, less strenuous jobs.
“[E]ven where controlling weight will not be accorded because a treating
source’s opinion relates to an issue reserved to the Commissioner, an ALJ still
must ‘explain the consideration given to the treating source’s opinion(s).’”
Dutkiewicz, 663 Fed. Appx. at 432 (quoting Bass v. McMahon, 499 F.3d 506, 511
(6th Cir. 2007) (quoting SSR 96–5p, 61 Fed. Reg. 34471, 34474 (July 2, 1996)).
The Court finds that the ALJ’s failure to explicitly discuss the off-work
restrictions issued by Dr. Macy was harmless error. Id. Dr. Macy never opined on
Plaintiff’s ability to perform other work or Plaintiff’s functional limitations. In
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addition, as mentioned previously, treatment notes from visits with Dr. Macy in the
eight months after Plaintiff’s diagnosis reveal that Plaintiff did not complain about
pain in her hands. Id. at 464-68, 471. In sum, the ALJ “reasonably explain[ed] that
the majority of medical evidence, the nature of [Plaintiff’s] treatment, and the other
medical opinions in the record showed that [Plaintiff] had the capacity to perform a
limited range of sedentary work.” Dutkiewicz, 663 Fed. Appx. at 432 (citing
Coldiron v. Comm'r of Soc. Sec., 391 Fed.Appx. 435, 440–41 (6th Cir. 2010)).
Plaintiff’s objection is overruled.
CONCLUSION
For the reasons stated above,
IT IS ORDERED that the Report and Recommendation [19] is ADOPTED
and entered as the findings and conclusions of the Court. Plaintiff’s Objections to
the Report and Recommendation [20] are OVERRULED.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary
Judgment [18] is GRANTED. Plaintiff’s Motion for Summary Judgment [14] is
DENIED.
SO ORDERED.

Dated: July 11, 2018

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

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