Monice v. SSA, Commissioner of

Filing 19

ORDER granting in part 13 Motion for Summary Judgment; granting in part 15 Motion for Summary Judgment; adopting in part 16 Report and Recommendation. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MONICE LYNN DORSETTE,
Case No. 17-11299
Plaintiff,
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

v.
COMMISSIONER OF SOCIAL SECURITY,

U.S. MAGISTRATE JUDGE
PATRICIA T. MORRIS

Defendant.
/

ORDER ADOPTING IN PART REPORT AND RECOMMENDATION [16]; SUSTAINING IN
PART PLAINTIFF’S OBJECTIONS [17]; GRANTING IN PART PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT [13]; AND GRANTING IN PART DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [15]
Plaintiff Monice Lynn Dorsette 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. 13] on December 15, 2017.
Defendant filed a Motion for Summary Judgment [15] on January 16, 2018.
On March 14, 2018, the Magistrate Judge issued a Report and
Recommendation (“R&R”) [16] recommending that the Court grant Defendant’s
Motion for Summary Judgment and deny Plaintiff’s Motion for Summary Judgment.
Plaintiff timely filed her Objections on March 28, 2018. [17].
For the reasons stated below, the Court ADOPTS IN PART the Report and
Recommendation [16]. Plaintiff’s Objections to the Report and Recommendation
[17] are SUSTAINED IN PART. Plaintiff’s Motion for Summary Judgment [13] is

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GRANTED IN PART. Defendant’s Motion for Summary Judgment [15] is
GRANTED IN PART. Pursuant to Sentence Four of 42 U.S.C. § 405(g), this matter
is REMANDED to the Social Security Administration for further proceedings
consistent with this opinion.
FACTUAL BACKGROUND
The R&R summarized the record as follows:
A. Introduction and Procedural History
...
Plaintiff received disability benefits for a speech and language disorder
beginning in March 1999 when she was seven years old. (Tr. 67, 90). The
Commissioner found her no longer eligible for SSI once evaluated under the
adult disability rules. (Tr. 77-80). She appealed this determination and was
again denied on reconsideration. (Tr. 81-88). Thereafter, she requested a
hearing before an ALJ, (Tr. 101-04), which the ALJ dismissed after Plaintiff
failed to appear, (Tr. 69-73). The Appeals Council remanded the case, and
thereafter Plaintiff attended an administrative hearing on May 5, 2016. (Tr. 3465, 74-76). On June 30, 2016, the ALJ issued a written decision finding
Plaintiff not disabled. (Tr. 15- 33). The Appeals Council denied review on
February 24, 2017. (Tr. 1-6). On April 25, 2017, Plaintiff filed the instant case.
(Doc. 1).
...
D. ALJ Findings
Following the five-step sequential analysis, the ALJ found Plaintiff not
disabled under the Act. (Tr. 20). At Step One, the ALJ noted that Plaintiff
attained the age of 18 on October 25, 2010, and was eligible for SSI as a child
in the month preceding that date, but that she was informed on November 30,
2011 that she was found no longer disabled “based on a redetermination of
disability under the rules for adults who file new applications.” (Tr. 20). At
Step Two, the ALJ concluded that as of November 30, 2011 the following
impairments qualified as severe: schizoaffective disorder, depression, mild

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intellectual disability, intermittent explosive disorder, and anxiety. (Tr. 20-21).
The ALJ also decided, however, that none of these met or medically equaled a
listed impairment at Step Three. (Tr. 21-23). Thereafter, the ALJ found that
Plaintiff had the residual functional capacity (“RFC”) to perform a full range of
work at all exertional levels, except:
the claimant would be limited to simple, routine, repetitive tasks
without strict production demands. The claimant would be limited to
occasional interaction with coworkers and the general public.
(Tr. 23). At Step Four, the ALJ noted the absence of past relevant work. (Tr.
25). Proceeding to Step Five, the ALJ determined that there are jobs that exist
in significant numbers in the national economy that Plaintiff can perform. (Tr.
23-24).
E. Administrative Record
...
2. Application Reports and Administrative Hearing
i. Third Party Function Report
A Third-Party Function Report dated September 30, 2011 and filled out by
Valencia Dorsette, Plaintiff’s mother, appears in the administrative record. (Tr.
307-14). Valencia notes that Plaintiff “is learning disabled.” (Tr. 307).
According to Valencia, Plaintiff began each day by showering and feeding
herself, then went to school, took care of her daughter, visited with friends on
occasion, watched television, and listened to music. (Tr. 308). She required
help to care for her daughter. (Id.). She sometimes needed assistance in caring
for her hair. (Tr. 309). Though she rarely prepared meals, she could make
sandwiches and heat up frozen dinners about three to four times a week. (Id.).
She participated in various household chores, though Valencia indicated “I
have to explain why [they] need[] to be done and tell her to do [them] more
than once.” (Id.).
Although Plaintiff did not drive, she remained able to walk and use public
transportation. (Tr. 310). She shopped for food, clothes, and like items in stores
on a weekly basis. (Id.). But she was not able to pay bills, count change, handle
a savings account, or use a checkbook/money orders. (Id.). Her hobbies
involved listening to music, talking on the phone, and spending time with
friends and family, which she did on a frequent basis, although “[s]he has
become very easily angered and yells a lot.” (Tr. 311). She did not always feel

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sociable. (Tr. 312). Prompted to supply information about Plaintiff’s abilities,
Valencia marked issues with talking, memory, completing tasks, concentration,
understanding, following instructions, and getting along with others. (Id.). “She
is learning disabled [and] she sometimes get[s] angry and it affects whatever
she is doing at that time.” (Id.). She could pay attention “for as long as it takes,”
though “she is not able to retain a lot of information.” (Id.). She could not
follow written instructions because she “does not read well,” but she was able
to follow spoken instructions “up to the point of what she can remember.” (Id.).
She did not handle changes in routine well. (Tr. 313).
ii. Plaintiff’s Testimony at the Administrative Hearing
As the hearing began, Plaintiff’s attorney clarified the issues in the instant case,
noting “there is kind of a question in the record as to some of her diagnoses.”
(Tr. 38). Plaintiff lived in a two-family flat with her daughter, her friend, and
her friend’s mother and child. (Tr. 41). She could take the bus to get around,
though she typically rode with her friend. (Tr. 42). She finished schooling up to
the eleventh grade. (Id.). While in school, she was placed in special education
classes. (Tr. 43). She could read and write simple words. (Id.). She felt she was
disabled because “I can’t read or spell.” (Tr. 44). In addition, she took
medication for a cyst in her stomach and had complained to her doctor about
pain and numbness in her arm and arm [sic]. (Tr. 44-45). Sitting at the hearing,
she ranked her pain a six in severity out of ten. (Tr. 46).
Each day, Plaintiff played with her daughter and watched television. (Tr. 47).
She remained able to prepare her daughter’s meals and dress her. (Id.). Plaintiff
also performed various chores around the house, such as tidying up the floor
and microwave cooking. (Tr. 47). She had no issues with personal care, though
she did not shower or take a bath every day. (Tr. 48). Due to sleep apnea, she
had trouble sleeping. (Id.). She could lift her thirty nine pound daughter up on
occasion. (Tr. 49). Others needed to remind her to bathe and change her clothes
“[b]ecause I be forgetting, and I play, and watch TV.” (Tr. 52). “Every day, all
day” she experienced aural and visual hallucinations. (Tr. 53-54). “I see people
that’s in the ground.” (Tr. 54). She did not take medication for this condition
because “my preacher say that’s a gift from God.” (Tr. 57). Asked to describe
her depression symptoms with specificity, Plaintiff said “I get angry a lot”
because “whatever happens to me, it keep playing back and forth in my head.”
(Tr. 56). She did not like to be around other people “[w]hen I have my days,”
which occurred about three times a week. (Tr. 57). “Sometime I just want to be
left alone. I just want to be around my daughter, and my friend and her
daughter. I don’t like being around lot of people, or too much noise.” (Tr. 58).

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iii. The VE’s Testimony at the Administrative Hearing
The ALJ’s first hypothetical posed an individual “able to work at . . . all levels
of exertion, but is limited to simple, routine, repetitive tasks without strict
production demands, and occasional interaction with coworkers and the general
public. Would the hypothetical person have any jobs?” (Tr. 60). The VE
indicated that “unskilled work across several exertional levels” would exist for
such an individual, including: “office cleaner” (more than 200,000 jobs in the
national economy); “hand packager” (more than 100,000 jobs in the national
economy); and “bunch hand” (more than 200,000 jobs in the national
economy). (Tr. 60-61).
The second hypothetical was the “same as hypothetical one, but the person
would also have the ability to change from a standing to a seated position, or
vice versa, for one to two minutes every hour, two hours without interference
with work products.” (Tr. 61). Such a person, suggested the VE, could perform
hand packager and bunch hand jobs as before, but could no longer perform the
office cleaner job. (Id.). Other examples existed as well, including: “small
products assembler” (more than 100,000 jobs in the national economy”) and
“security monitor” (more than 120,000 jobs in the national economy). (Id.).
The ALJ’s third hypothetical was the “same as hypothetical two, but the
hypothetical person would be off task 20 percent of the work day, excluding
normal breaks, due to lack of concentration, and the effects of medication.
Would the hypothetical person be able to perform any of the jobs that you’ve
indicated?” (Tr. 62). At this, the VE noted that such an individual could not
maintain competitive full-time employment. (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.

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“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 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).

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ANALYSIS
Plaintiff raises the following Objections to the R&R:
 The Magistrate Judge erred by determining that the ALJ properly
assessed Plaintiff’s Mental RFC;
 The Magistrate Judge erred by concluding that the ALJ had no duty to
obtain an updated medical opinion; and
 The Magistrate Judge erred by finding that the ALJ’s decision was
supported by substantial evidence.

I.

The ALJ’s assessment of Plaintiff’s Mental RFC
Plaintiff faults the Magistrate Judge for her conclusion that the ALJ properly

discussed Plaintiff’s mental limitations in the RFC finding under SSR 96-8p and SSR
85-15.
SSR 96-8p provides:
[N]onexertional capacity must be expressed in terms of work-related functions .
. . Work-related mental activities generally required by competitive,
remunerative work include the abilities to: understand, carry out, and remember
instructions; use judgment in making work-related decisions; respond
appropriately to supervision, co-workers and work situations; and deal with
changes in a routine work setting.
Similarly, SSR 85-15 states:
The basic mental demands of competitive,
include the abilities (on a sustained basis)
remember simple instructions; to respond
coworkers, and usual work situations; and to
work setting.

remunerative, unskilled work
to understand, carry out, and
appropriately to supervision,
deal with changes in a routine

These regulations require the ALJ to consider the claimant’s mental capacities.
Delgado v. Comm’r Soc. Sec., 30 Fed. Appx. 542, 547 (6th Cir. 2002). The ALJ must

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discuss the medical evidence and explain the basis for the RFC determination. Id. at
548.
The ALJ evaluated neither SSR 96-8p nor SSR 85-15, nor was there any
explanation for the cursory conclusion that Plaintiff should be “limited to occasional
interaction with coworkers and the general public.” (Tr. 25). The ALJ did not explain
how Plaintiff’s ability to do certain, personal tasks – such as care for her daughter,
prepare meals, do housekeeping, and go shopping with friends – translate to a
workplace setting. It is unclear to the Court how an ability to complete these personal
tasks showcases Plaintiff’s ability to understand, carryout, and remember instructions;
make sound work-related decisions; “respond appropriately to supervision, coworkers, and work situations; and deal with changes in a routine work setting.” SSR
96-8p.
“[I]t is unclear on what the ALJ based her ultimate RFC conclusion, and she
draws no accurate and logical bridge to instruct the Court of her reasoning.” Gross v.
Comm’r of Soc. Sec., 247 F. Supp. 3d 824, 830 (E.D. Mich. 2017). The Court “may
not uphold an ALJ’s decision, even if there is enough evidence in the record to
support it, if the decision falls to provide an accurate and logical bridge between the
evidence and the result.” Pollaccia v. Comm’r of Soc. Sec., 2011 WL 281044 (E.D.
Mich. Jan. 6, 2011); see also Wilson v. Comm’r of Soc. Sec., 378 F.3d 541 (6th Cir.
2004) (an appellate record must “permit meaningful review” of the ALJ’s application

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of the rules). Therefore, Plaintiff’s objection to the R&R on this point is
SUSTAINED.
II.

The ALJ’s duty to obtain an updated medical opinion
Social Security Ruling 96-6p requires an updated medical expert opinion when

either
(1) there is evidence of symptoms, signs and findings that suggest to the ALJ . .
. that the applicant’s condition may be equivalent to the listings; or (2) when
additional medical evidence is received that ‘in the opinion of the
administrative law judge . . . may change the State agency medical or
psychological consultant’s finding’ that the impairment does not equal the
listings.
Kelly ex rel. Hollowell v. Comm’r of Soc. Sec., 314 Fed. Appx. 827, 830 (6th Cir.
2009) (quoting SSR 96-6p, 1996 WL 374180 (July 2, 1996) (emphasis added)).
Plaintiff generally alludes to her “numerous severe impairments” without
specifically explaining how the record evidence would show that she qualified under
one of the listings, or that the ALJ believed the records may have changed the medical
experts’ findings. See Courter v. Comm’r of Soc. Sec., 479 Fed. Appx. 713, 723 (6th
Cir. 2012); Freeman v. Comm’r of Soc. Sec., 14-11146, 2015 WL 404332, at *11
(E.D. Mich. Jan. 29, 2015). Accordingly, this objection is OVERRULED.
III.

Whether the ALJ’s findings are supported by substantial evidence

As explained previously, the ALJ’s findings with respect to Plaintiff’s mental
RFC do not permit the Court “to trace the path of [her] reasoning.” See Stacey v.
Comm'r of Soc. Sec., 451 Fed.Appx. 517, 519 (6th Cir. 2011) (quoting Diaz v. Chater,

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55 F.3d 300, 307 (7th Cir. 1995)). Because the RFC determination in this matter is not
supported by substantial evidence, a remand is necessary.
CONCLUSION
For the reasons stated above,
IT IS ORDERED that the Report and Recommendation [16] is ADOPTED
IN PART. Plaintiff’s Objection to the Report and Recommendation [17] is
SUSTAINED IN PART.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary
Judgment [15] is GRANTED IN PART. Plaintiff’s Motion for Summary Judgment
[13] is GRANTED IN PART.
IT IS FURTHER ORDERED that this matter is REMANDED to the Social
Security Administration for further proceedings consistent with this opinion.
SO ORDERED.

Dated: August 8, 2018

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

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