Mohammed v. Berryhill

Filing 29

OPINION AND ORDER Adopting 26 Report and Recommendation, Granting 23 Motion for Summary Judgment filed by Nancy A. Berryhill,Denying 18 Motion for Summary Judgment filed by Mohammed Abdulsattar Mohammed, 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
MOHAMMED ABDULSATTAR
MOHAMMED,
Plaintiff,

Case Number 17-11484
Honorable David M. Lawson
Magistrate Judge R. Steven Whalen

v.
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, a former Iraqi-English translator for the United States Army, filed the present
action seeking review of the Commissioner=s decision denying his claims for disability benefits
and supplemental security income (SSI) under Title II and Title XVI of the Social Security Act.
The case was referred to United States Magistrate Judge R. Steven Whalen pursuant to 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 judgement to reverse the decision of the Commissioner and remand the case for an award
of benefits or 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 Whalen filed a report on June 29, 2018 recommending that the defendant=s
motion for summary judgment be granted, the plaintiff=s motion for summary judgment be denied,
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and the decision of the Commissioner be affirmed. The plaintiff filed timely objections, and the
defendant filed a response. The matter is now before the Court.
The plaintiff, who is now 56 years old, filed his applications for disability and SSI benefits
on May 9, 2012, when he was 50. In the applications that are the subject of the present appeal,
the plaintiff alleged a disability onset date of November 1, 2010. The plaintiff has been diagnosed
with lumbar disc disease, osteoarthritis, diabetes mellitus, and hearing loss in the left ear.
The present case is the second complaint filed by the plaintiff seeking judicial review of
the denial of his benefit applications. In the first round, the plaintiff=s application for disability
benefits was denied initially on August 21, 2012. He timely filed a request for an administrative
hearing, and on September 10, 2013, the plaintiff appeared before Administrative Law Judge
(ALJ) Ramona L. Fernandez. On October 24, 2013, ALJ Fernandez issued a written decision in
which she found that the plaintiff was not disabled. On December 23, 2014, the Appeals Council
denied the plaintiff=s request for review of the ALJ=s decision. The plaintiff then filed a complaint
for judicial review, which resulted in a stipulated order to remand the matter for a new hearing and
further review, with specific directions to the ALJ to Aevaluate medical equivalency at step three
consistent with Social Security Ruling 96-6p.@ Mohammed v. Commissioner, No. 15-10596 (E.D.
Mich. Nov. 30, 2015).
On remand, the Appeals Council determined that the ALJ’s finding that the plaintiff’s back
impairment did not meet or equal a listed impairment was not supported by an acceptable medical
source.

After the plaintiff failed to submit to additional consultative examinations on two

occasions (upon advice of his attorney), the ALJ located an orthopedic specialist --- Jeffrey
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Hansen, M.D. --- who reviewed the medical records and responded to the ALJ’s interrogatories.
Those responses were in the record when the plaintiff appeared for a second hearing before ALJ
Fernandez, which was held on August 11, 2016. On January 27, 2017, the ALJ issued a second
decision, again concluding that the plaintiff was not disabled. The plaintiff filed his second
complaint for judicial review of the denial of benefits on May 9, 2017.
In the second round, ALJ Fernandez again applied the five-step sequential analysis
prescribed by the Secretary in 20 C.F.R. '§ 404.1520, 416.920. She found that the plaintiff had
not engaged in substantial gainful activity since November 1, 2010 (step one); the plaintiff suffered
from lumbar disc disease, osteoarthritis, diabetes mellitus, and hearing loss in the left ear,
impairments which were “severe” within the meaning of the Social Security Act (step two); none
of those impairments alone or in combination met or equaled a listing in the regulations (step
three); and the plaintiff was able to perform the duties required for his past relevant work as an
interpreter, which the ALJ characterized as skilled in complexity and sedentary in exertional
demands (step four). Although discussion of step five was not necessary, the ALJ proceeded to
an evaluation of the availability of jobs within the plaintiff’s residual ability to perform work, and
found that there were significant numbers, also noting that a “not disabled” finding would have
been directed when using Medical Vocational Rule 202.21 as a framework for decision.
When determining the plaintiff=s residual functional capacity for the purposes of the step
four determination, the ALJ concluded that the plaintiff had the residual functional capacity to
perform light work as defined in 20 C.F.R. ' 404.1567(b) and 416.967(b), with the additional
limitations that the work must involve only occasional climbing, stooping, kneeling, crouching,
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crawling, or balancing; no climbing of ladders, roofs, or scaffolds; no hazards, including moving
machinery and work at unprotected heights; and noise levels not to exceed a moderate level. The
ALJ also found that the plaintiff must have the opportunity to change position after sitting two
hours or standing or walking for 90 minutes, and he could not use foot controls. The ALJ
concluded that the plaintiff=s duties as an interpreter would not require him to perform any work
that would exceed his residual functional capacity, including all of the pertinent limitations.
Based on those findings, the ALJ concluded that the plaintiff was not disabled within the meaning
of the Social Security Act.
The plaintiff raised five arguments in his motion for summary judgment before the
magistrate judge. Two related to Dr. Hansen, that the ALJ violated procedure by not allowing the
plaintiff’s attorney to cross-examine him at a hearing or submit his own set of interrogatories; and
that Dr. Hansen’s opinion that the plaintiff’s back problems did not rise to a listing level was
unsupported and should not have been adopted by the ALJ. The plaintiff also argued that the
treating physician’s disability opinion was not given proper weight, that the ALJ’s RFC
determination was flawed because she failed to recognize the plaintiff’s English language deficit
or his psychological impairment, and that the ALJ’s credibility determination was not supported
by the record. The magistrate judge rejected each of these arguments in turn.
The plaintiff filed three objections to the magistrate judge’s recommendation and report,
which plaintiff’s counsel refers to as a “proposal.” 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 objection is made.” 28 U.S.C. '
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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).
One aspect of the Commissioner’s response to the objections warrants a comment. The
Commissioner criticizes the plaintiff for “re-iterat[ing] . . . argument[s] he raised in his initial
brief,” and suggests that for that reason alone, the objections should be overruled.

The

Commissioner recently has been making that argument in nearly every response to a Social
Security plaintiff’s objections to a magistrate judge’s report, regardless of how the objections are
fashioned. It certainly doesn’t apply here.
To seek a fresh review from a district judge — and to preserve an issue for further review
beyond that — a plaintiff challenging a magistrate judge’s report and recommendation must make
“specific objections to the . . . report,” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 837
(6th Cir. 2006), so that “the district court [has] the opportunity to consider the specific contentions
of the parties and to correct any errors immediately,” Walters, 638 F.2d at 950. Necessarily, the
plaintiff likely will need to re-articulate the argument made in his summary judgment motion,
assert that the argument still has merit despite the magistrate judge’s view of it, and explain why
the plaintiff thinks the magistrate judge got it wrong. What courts have criticized in the past is
the cut-and-paste approach that consists essentially of re-submitting as objections the same
language verbatim filed with the magistrate judge on the summary judgment motion.
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See

Funderburg v. Comm'r of Soc. Sec., No. 15-10068, 2016 WL 1104466, at *1 n.1 (E.D. Mich. Mar.
22, 2016); Owens v. Comm'r of Soc. Sec., No. 12-47, 2013 WL 1304470, at *3 (W.D. Mich. Mar.
28, 2013). Plaintiffs sometimes do that, but not often, and not here. The Commission should
refrain from including that macro in all its responses and assert the argument only in cases in which
it actually applies.
Plaintiff=s Objections
First Objection
In his first objection, the plaintiff argues that the magistrate judge erred when he concluded
that the plaintiff was not denied a fair hearing by the refusal of the ALJ to permit cross-examination
or submission of additional interrogatories to Dr. Hansen, and the ALJ’s failure to rule on the
plaintiff=s pending objections to including Dr. Hansen’s testimony. The plaintiff contends that a
full cross-examination of Hansen at the hearing would have revealed the speculative nature of his
testimony, and, in any event, the procedure he urged was required by the Commissioner’s
Hearings, Appeals and Litigation Law Manual (“HALLEX”). The plaintiff acknowledges that
the HALLEX does not create procedural rights that he can enforce judicially, but he cites cases
where the Commissioner’s departure from HALLEX-prescribed procedures was found to result in
a denial of due process.
The story the plaintiff tells in his summary judgment brief (and his objections), however,
is remarkably different from the chronology that the magistrate judge laid out in his report. He
explained that the ALJ twice --- in letters sent on August 11, 2016 and January 4, 2017 --- gave
the plaintiff the opportunity to submit more written questions to Dr. Hansen or ask for an additional
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hearing so he could cross-examine him. Both offers were met with silence. Moreover, the
plaintiff’s request for relief was equivocal in any event. He said he only wanted to ask Dr. Hansen
more questions if the ALJ intended to rule against him.

But the ALJ had no obligation to preview

her decision to the plaintiff before he decided if he should build a better case. As the magistrate
judge noted, Dr. Hansen came into the picture only after the plaintiff twice refused to submit to
another consultative examination after the remand by the Appeals Council instructed the ALJ to
obtain information from an acceptable medical source. Noting that the plaintiff’s refusals were
at his attorney’s advice, the magistrate judge implied that counsel was attempting to game the
system. Viewing as well the language of his motion for more access to Dr. Hansen, the Court
agrees.
The plaintiff also makes much of the misdirection of the interrogatories to a different
physician. But the Court does not see how that matters at all, since it was Dr. Hansen who
furnished the response, and the ALJ’s fumble was well known and fully behind the parties by the
time of the administrative hearing. No prejudice resulted. The first objection will be overruled.
Second Objection
In his second objection, the plaintiff argues that the magistrate judge erred by merely
assuming that Dr. Hansen=s testimony was consistent with other evidence in the record, without
conducting a rigorous review of the record evidence, such as an MRI report which arguably
contradicts his findings. The plaintiff contends that the medical evidence actually establishes,
contrary to Dr. Hansen’s opinion, that his condition meets or equals all of the requirements of
Listing 1.04A, which covers spinal disorders such as “herniated nucleus pulposus, spinal
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arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, [and]
vertebral fracture[], resulting in compromise of a nerve root (including the cauda equina) or the
spinal cord.” 20 C.F.R. Part 404, Subpart P, Appendix 1 ' 1.04. The plaintiff also contends that
the magistrate judge improperly endorsed the ALJ’s conclusion that the plaintiff’s failure to seek
aggressive pain management treatment undermined the credibility of his testimony about the
extent of his disability due to spinal pain, without taking into account his limited means and other
circumstances that prevented him from seeking or obtaining medical care, contrary to SSR 16-3p.
However, iIn this Circuit, to qualify as “disabled” under a Listing in the Secretary’s
regulations, a claimant must demonstrate that he or she meets all of the criteria contained in the
Listing. See Duncan v. Sec’y of Health & Human Servs., 801 F.2d 847, 855 (6th Cir. 1986). As
the magistrate judge noted, the record adequately supports Dr. Hansen’s opinion that the plaintiff=s
condition did not meet Listing 1.04A because, whether or not the examination indicated any nerve
root involvement or radicular symptoms, the plaintiff=s condition did not meet all of the other
requirements of Listing 1.04A since there was no indication of significant lower extremity
symptoms, which is an additional requirement to satisfy the listing.

Moreover, the ALJ’s

assessment of the plaintiff’s “moderate” treatment history is bolstered by the fact that Dr. Hansen’s
review included consideration of two MRI scans that showed almost no change in his condition
over a span of 15 years.

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Third Objection
In his third objection, the plaintiff reiterates his criticism of the ALJ’s decision to discount
his subjective testimony about the limitations of his capacity due to spinal pain, and insists that the
case should be remanded with a directive to the ALJ to comply with SSR 16-3p. But as the
Commissioner notes in her response, the plaintiff=s third objection is vestigial, unsupported by any
developed argument or legal authority, and merely reiterates points advanced in his other two
objections, without adding any substantive facts or argument.
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 [R.
26] is ADOPTED.
It is further ORDERED that the plaintiff=s objections [R. 27] are OVERRULED.
It is further ORDERED that the plaintiff=s motion for summary judgment [R. 18] is
DENIED.
It is further ORDERED that the defendant=s motion for summary judgment [R. 23] is
GRANTED. The findings of the Commissioner are AFFIRMED.

s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Date:

September 24, 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 September 24,
2018.
s/Susan K. Pinkowski
SUSAN K. PINKOWSKI

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