Charara v. Social Security, Commissioner of
Filing
19
ORDER denying 11 Motion for Summary Judgment; granting 15 Motion for Summary Judgment; adopting 16 Report and Recommendation. Signed by District Judge Arthur J. Tarnow. (MLan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MALAK CHARARA,
Case No. 17-13481
Plaintiff,
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW
v.
COMMISSIONER OF SOCIAL SECURITY,
U.S. MAGISTRATE JUDGE
MONA K. MAZJOUB
Defendant.
/
ORDER ADOPTING REPORT AND RECOMMENDATION [16], OVERRULING
PLAINTIFF’S OBJECTION [17], DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT [11], AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT [15]
Plaintiff, Malak Charara, has sought judicial review of an Administrative Law
Judge (ALJ) decision denying her application for disability benefits. On September
12, 2018, Magistrate Judge Mona K. Majzoub issued her Report and
Recommendation (R&R) [16], recommending that the Court deny Ms. Charara’s
Motion for Summary Judgment [11] and grant the Commissioner of Social
Security’s Motion for Summary Judgment [15]. Ms. Charara filed Objections on
September 26, 2018 [17], and the Commissioner filed a Response on October 1,
2018 [18].
FACTUAL BACKGROUND
The R&R incorporates the factual background of the ALJ’s decision, but the
Court will provide a brief sketch of Ms. Charara’s condition nevertheless. Malak
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Charara was born on March 30, 1993 and was only 20 at the date of her disability’s
alleged onset. On August 8, 2015, she was diagnosed with multiple sclerosis and her
mental and physical condition deteriorated further. (Tr. 691-92). She has testified
that she has chronic pain throughout her back and extremities and suffers from
migraines, weakness, and fatigue. (Tr. 16). She struggles with simple tasks and has
testified to needing help performing basic household tasks. (Id.). Moroever, Ms.
Charara is beset by psychological difficulties. She has been hospitalized due to her
history of panic attacks and depression, and her pain treatment regime has left her
battling with opioid addiction. (Tr. 19). In early 2017, Ms. Charara underwent
several brain MRIs, which revealed periventricular and juxta cortical lesions. (Id.).
She’s testified that she suffers from migraines “every second of the day.” (Tr. 56).
PROCEDURAL BACKGROUND
The R&R outlines the case’s procedural history as follows.
On December 5, 2013, Plaintiff applied for Supplemental Security
Income (“SSI”), alleging that she has been disabled since October 29,
2013. (TR 251.) The Social Security Administration initially denied
Plaintiff’s claims on March 6, 2014. (TR 160.) On April 2, 2015, Plaintiff
appeared with a representative and testified at a hearing before
Administrative Law Judge (“ALJ”) Ena Weathers. (TR 108-139.) On
August 7, 2015, ALJ Weathers issued an unfavorable decision on
Plaintiff’s claims. (TR 86-107.) However, on October 19, 2016, the
Appeals Council issued an order remanding the case to the ALJ with
instructions to consider “[n]ew and material evidence” which “provide[d]
support for the medically determinable impairment of multiple sclerosis.”
(TR 78-79.) The Appeals Council directed the ALJ on remand to:
Consider the new and material evidence that provides documentation
of multiple sclerosis;
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Update the record and obtain additional evidence concerning the
claimant's medically determinable impairments in order to complete the
administrative record in accordance with the regulatory standards
regarding consultative examinations and existing medical evidence (20
CFR 416.912-913). The additional evidence may include, if warranted
and available, a consultative examination, and medical source
statements about what the claimant can still do despite the impairments;
Consider the new evidence documenting multiple sclerosis and further
evaluate the claimant's alleged symptoms and provide rationale in
accordance with the disability regulations pertaining to evaluation of
symptoms (20 CFR 416.929);
If necessary, obtain evidence from a medical expert to clarify nature,
severity, limiting effects, and/or onset of the claimant's impairments, in
particular, the claimant's multiple sclerosis; and
Give further consideration to the claimant's maximum residual
functional capacity during the entire period at issue and provide
rationale with specific references to evidence of record in support of
assessed limitations (Social Security Ruling 96-8p).
(TR 80.)
On May 20, 2017, Plaintiff appeared for a hearing before ALJ
Crystal L. White-Simmons. (TR 32-76.) On April 27, 2017, ALJ WhiteSimmons issued an unfavorable decision on Plaintiff’s claims. (TR 7-23.)
Plaintiff requested a review of the ALJ’s decision with the Appeals
Council, which was denied on July 26, 2017. (TR 1-3.) On October 25,
2017, Plaintiff commenced this action for judicial review, and the parties
filed cross motions for summary judgment, which are currently before the
Court.
STANDARD OF REVIEW
The Court conducts de novo review of objections to a Magistrate Judge’s
Report and Recommendation on a dispositive motion. 28 U.S.C. § 636(b)(1)(c).
Judicial review of a decision by a Social Security ALJ “is limited to
determining whether the Commissioner’s decision is supported by substantial
evidence and was made pursuant to proper legal standards.” Cole v. Astrue, 661 F.3d
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931, 937 (6th Cir. 2011) (internal quotation marks omitted). Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir.
2001) (internal quotation marks omitted). A reviewing court will affirm the
Commissioner’s decision if it is based on substantial evidence, even if there is also
substantial evidence to support the opposite conclusion. Colvin v. Barnhart, 475
F.3d 727, 730 (6th Cir. 2007). On the other hand, the substantial evidence standard
“does not permit a selective reading of the record,” as the reviewing court’s
assessment of the evidence supporting the ALJ’s findings “must take into account
whatever in the record fairly detracts from its weight.” McLean v. Comm’r of Soc.
Sec., 360 F. Supp. 2d 864, 869 (E.D. Mich. 2005) (quoting Garner v. Heckler, 745
F.2d 383, 388 (6th Cir. 1984)). Further, “[a]n ALJ’s failure to follow agency rules
and regulations denotes a lack of substantial evidence, even where the conclusion of
the ALJ may be justified based upon the record.” Cole, 661 F.3d at 937 (internal
quotation marks and citations omitted).
ANALYSIS
I.
The ALJ Properly Followed the Instructions of the Appeals Council on
Remand
Ms. Charara objects to the R&R to argue that ALJ White-Simmons, in her
March 20, 2017 decision, failed to comply with the Appeals Council’s Order.
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Specifically, she takes issue with the ALJ’s refusal to obtain an updated consultative
examination to determine the severity of the Multiple Sclerosis. More generally, she
argues that ALJ failed to gather sufficient information on her medical condition as
it related to her diagnosis of Multiple Sclerosis. The problem with this argument, as
noted by the Magistrate Judge, is that the Appeals Council left a great deal of
discretion to the ALJ, who was instructed to obtain evidence from a medical expert
“if necessary,” and a consultative examination, “if warranted and available.” The
Appeals Council mandated only that the ALJ study the effects of Ms. Charara’s
Multiple Sclerosis, not that she commission a new consultative examination.
The ALJ conformed her decision to the Appeals Council’s remand order. She
adequately took into account new evidence arising from Ms. Charara’s Multiple
Sclerosis, including a July 2015 cervical MRI and the examinations and treatment
of physician Mohammad Ayad, M.D. (Tr. 18). The ALJ considered the medical
opinions of Sami Abufarha, M.D, who performed a lumbar MRI and opined on mild
facet hypertrophy in late 2013. (Tr. 17). She also considered emergency room
treatment for “body aches, anxiety and fatigue” in March 2015 and the consultative
medical examination of Cynthia Shelby-Lane, M.D. in April 2015. (Tr. 18). Dr.
Shelby-Lane’s evaluation, four months before the Multiple Sclerosis diagnosis,
revealed “only moderate limitations in the claimant’s gait, strength, and overall
physical functioning.” (Id.).
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Evaluations conducted after her Multiple Sclerosis diagnosis continued to find
only moderate limitations to Ms. Charara’s strength and mobility. The Magistrate
Judge drew attention to the ALJ’s observations that diagnostic studies of Ms.
Charara’s spine “reveal only moderate degenerative change,” and “do not
demonstrate rapid progression [of multiple sclerosis] or other acute complications.”
(Tr. 17). Neurological examinations following her diagnosis of Multiple Sclerosis,
notably a report by neurologist Jose DeSousa, M.D., reveal that though Ms. Charara
suffers from pain in her arms and legs, she has full strength in all four extremities
and normal motor faculties. (Tr. 788-89). These observations were corroborated by
the progress notes of neurologist Daniel Singer, D.O., which indicate normal motor
function, muscle strength, and gait. (Tr. 807-09). Dr. Ayad examined Ms. Charara
on March 5, 2016 and found that her lungs and ENT were clear, and her muscle
strength rated a 5/5. (Tr. 679). He also found that her Rhomberg was normal, she
had no pronator drift, her reflexes were symmetric, and her gait was steady. (Id.).
On January 1, 2016 he found that Ms. Charara had a good range of movement in her
back and extremities, which was typical for their appointments between 2015 and
2017. (Tr. 682, Ex. 20F). There was thus sufficient post-diagnosis information for
the ALJ to make a finding based on substantial evidence that Ms. Charara’s
diagnosis of Multiple Sclerosis had not rendered her disabled. The Magistrate Judge
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was thus correct to submit that the ALJ conformed her evaluation to the Appeals
Council’s remand.
II.
The ALJ Did Not Err When She Discounted the Opinion of Plaintiff’s
Treating Physician
Ms. Charara objects to the R&R’s finding that the ALJ did not err when she
discounted the weight of the treating physician’s report on his patient’s physical
capacities. The ALJ gave little weight to Dr. Ayad’s opinion that Ms. Charara could
not stand more than ten minutes, sit more than fifteen minutes, or use her left arm.
(Tr. 20). She noted that this opinion was inconsistent with Dr. Ayad’s past
observations and the observations of other medical professionals. (Id.).
The treating physician rule is not a license for reviewing courts to reweigh
evidence. The Rule requires an ALJ to give a treating source’s opinion controlling
weight if it “is well supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in
the record.” C.F.R. § 404.1527(d)(2). The ALJ in this case gave good reasons,
supported by evidence in the record, for discounting Dr. Ayad’s opinion, and thus
satisfied the requirements of 20 C.F.R. § 404.1527(d)(2). Those reasons, which are
outlined by the R&R, have not been addressed by the plaintiff’s objections. They are
as follows:
First, as the ALJ emphasizes, Dr. Ayad’s opinion is not consistent with the
medical evidence of record, which indicates: (1) that Plaintiff’s pain was
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“controlled on current medications” as of June 13, 2016 (TR 673), (2) that
Plaintiff exhibited no tenderness and good range of motion in her back and
extremities and 5/5 muscle strength in all major groups (TR 677-82), and
(3) that Plaintiff was “without any focal neurological deficit” (TR 678) and
that her sensation was “intact to light touch in all four extremities” (TR
789). Furthermore, diagnostic imaging suggested that the symptoms
associated with Plaintiff’s multiple sclerosis did not significantly intensify
in comparison to the original diagnostic images from July of 2015. (TR
659, 715.) Finally, the undersigned observes that Dr. Ayad’s opinion lacks
any substantive analysis connecting Plaintiff’s medical impairments to the
proposed limitations, a defect which limits the ALJ’s ability to evaluate
the basis for Dr. Ayad’s recommendations. (TR 785-86.)
R&R at 10.
The ALJ’s finding that Dr. Ayad’s opinion was inconsistent with the record was thus
made in conformity with the treating physician rule.
III.
The ALJ Did Not Err in Determining Plaintiff’s Mental RFC
Plaintiff objects to the Magistrate Judge’s submission that the ALJ properly
weighed evidence of Ms. Charara’s mental conditions to arrive at her mental
Residual Functional Capacity. This objection does not meaningfully identify what
element of the R&R she takes issue with, however, except its conclusion. As
observed by the Magistrate, the ALJ’s decision is not lacking in its analysis of Ms.
Charara’s psychological, emotional, and intellectual conditions. The ALJ assigned
great weight to the treatment report of psychological examiner Nick Boneff, Ph.D,
who found that though Ms. Charara had moderate limitations in following complex
instructions and interacting with others, she had “no limits in her ability to
understand, remember, and carry out simple instructions and make simple decisions.
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(Tr. 21). She also considered the report of social worker Souad Maadarani, who
observed that though Ms. Charara demonstrated a “sad mood and labile affect,” she
was also “alert, cooperative made normal eye contact, and demonstrated goaldirected thought process and associations.” (Id.). Psychiatrist Aicha Rifai, M.D.,
diagnosed Ms. Charara with depression, generalized anxiety disorder, and attention
deficit disorder, but also observed that she exhibited normal levels of attention,
concentration, and thought process. (Tr. 21, 520-21). Lastly the ALJ found the
opinion of state agency psychological consultant Kathy Morrow, Ph.D.—who
opined that Ms. Charara was capable of “simple unskilled work—to be consistent
with the record. (Tr. 22).
IV.
The ALJ’s Decision Was Supported by Substantial Evidence
Ms. Charara generally objects to the R&R’s finding that the ALJ’s decision
was supported by substantial evidence. She alludes to the pain caused by Multiple
Sclerosis, to her physical weakness, and to her constant anxiety. These issues have
all been considered by the R&R and reviewed by the Court. This objection targets
no particular element of the R&R and raises no new issues for the Court to evaluate.
CONCLUSION
Although Ms. Charara clearly suffers immensely from Multiple Sclerosis, she
has not articulated a valid legal reason to remand this case. ALJ White-Simmons
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based her decision on substantial evidence in the record, and the Court is not
empowered to replace her analysis with its own.
For the reasons stated above,
IT IS ORDERED that the Report and Recommendation [16] is ADOPTED
and, except as otherwise noted, entered as the conclusions and findings of the Court.
Plaintiff’s Objections to the R&R [17] are OVERRULED.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary
Judgment [15] is GRANTED. Plaintiff’s Motion for Summary Judgment [11] is
DENIED.
SO ORDERED.
Dated: October 30, 2018
s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
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