Clear v. SSA, Commissioner of

Filing 18

ORDER Accepting Report and Recommendation 15 and Dismissing Action. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHARLES CLEAR,
Plaintiff,
v.

Case No. 17-13836
Hon. Denise Page Hood

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
/
ORDER ACCEPTING REPORT AND RECOMMENDATION
AND DISMISSING ACTION
This matter is before the Court on Magistrate Judge David R. Grand’s
Report and Recommendation. [Doc. No. 15] Timely objections and a response to
the objections were filed in this matter. [Doc. Nos. 16 and 17]
Judicial review of the Commissioner’s decision is limited in scope to
determining whether the Commissioner employed the proper legal criteria in
reaching his conclusion. Garner v. Heckler, 745 F.2d 383 (6th Cir. 1984). The
credibility findings of an administrative law judge (“ALJ”) must not be discarded
lightly and should be accorded great deference. Hardaway v. Secretary of Health
and Human Services, 823 F.2d 922, 928 (6th Cir. 1987). A district court’s review
of an ALJ’s decision is not a de novo review. The district court may not resolve

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conflicts in the evidence nor decide questions of credibility. Garner, 745 F.2d at
397. The decision of the Commissioner must be upheld if it is supported by
substantial evidence, even if the record might support a contrary decision or if the
district court arrives at a different conclusion. Smith v. Secretary of HHS, 893 F.2d
106, 108 (6th Cir. 1984); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986).
The Court has had an opportunity to review this matter and finds that the
Magistrate Judge reached the correct conclusions for the proper reasons. Plaintiff
objects to the Magistrate Judge’s conclusions that: (1) the ALJ’s decision was
supported by substantial evidence; and (2) the ALJ properly assessed Plaintiff’s
limitations on a function-by-function basis.1

The Court is not persuaded by

Plaintiff’s arguments.
Plaintiff argues that the ALJ did not follow the SSA regulations and that
failure prejudiced him. Plaintiff contends that the ALJ (and the Magistrate Judge)
“misconstrued medical evidence and testimony.” Plaintiff asserts that: (a) the ALJ
failed to outline the medical documentation upon which she relied in formulating
her RFC; and (b) there is no physician documentation consistent with the RFC

Plaintiff does not challenge the portion of the Magistrate Judge’s analysis and
conclusions that the ALJ did not err by failing to: (a) have Plaintiff’s file reviewed
by a psychologist or psychiatrist; or (b) order a consultative examination for any of
Plaintiff’s possible mental impairments. See Dkt. No. 15, PgID 710-18.
1

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formulated by the ALJ. Plaintiff believes that the ALJ “severely overestimated”
Plaintiff’s ability to work, as it is impossible for Plaintiff to perform sustained
work. Plaintiff identifies his inability to use his right arm, the constant daily pain
he experiences, uncontrollable diarrhea (including soiling himself), and the
inability to use the bathroom properly (resulting in 15-30 minute trips to the
bathroom) as reasons why he cannot work.
The Court finds Plaintiff’s argument to be unsupported by the record, the
ALJ’s decision, and the law. An ALJ does not have to base her findings and RFC
on a physician’s opinion. See, e.g., Rudd v. Comm’r of Soc. Sec., 531 F.App’x 719,
728 (6th Cir. 2013) (“We have previously rejected the argument that a residual
functional capacity determination cannot be supported by substantial evidence
unless a physician offers an opinion consistent with that of the ALJ.”). Plaintiff is
responsible for setting forth “specific evidence to support [his] claim.” Gerrick v.
Comm’r of Soc. Sec., No. 15-12998, 2016 WL 5368620, at *2 (E.D. Mich. Sept.
26, 2016).
In reviewing the ALJ’s decision, the Court finds that: (1) the ALJ recognized
the injuries Plaintiff suffered on August 18, 2014 (and the resulting “severe
impairments” attributable to those injuries); and (2) mentioned and considered a
multitude of records, including discharge papers and instructions, progress notes

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(including physical therapy sessions), MRIs, CT scans, and visits to Drs. Fares
Zouheir, Edward Burke, Peter Amadio, John Ryan, Michael Sorscher, and
Plaintiff’s primary care physician (Dr. Haddock). See Dkt. No. 7-2 at PgID 52, 5760. Plaintiff does not explain how the ALJ erroneously relied upon – or how the
ALJ inadequately considered – the records stemming from those appointments or
the prescribed treatment(s) by those physicians.
Plaintiff also does not describe how his impairments undermined the ALJ’s
conclusions or provide additional medical documentation that does so. As the ALJ
noted, Plaintiff admittedly never received treatment from a specialist for his back
and neck pain. Finally, the Court finds that there was substantial evidence to
support the ALJ’s conclusion that Plaintiff’s medical history, examinations, and
tests indicate that Plaintiff was not as limited as he contended. For example,
although Plaintiff’s testimony reflects that he claimed he suffers – to some extent –
from each of the conditions described at the top of page 3 of this Order, see Dkt.
No. 7-2, PgID 78-90, the Court finds that there is substantial evidence in the record
to support the ALJ’s conclusion that Plaintiff overstated the severity of those
conditions. See Dkt. No. 7-2, PgID 60.
Plaintiff next argues that, although the ALJ was required to cite “substantial
evidence to support [her] conclusions,” the ALJ merely made conclusory

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statements that her “assessment is supported by the totality of medical evidence.”
Plaintiff also contends that the ALJ did not identify the medical documentation she
reviewed in formulating her RFC. Plaintiff asserts that his testimony established
numerous severe restrictions for which the ALJ failed to articulate a resolution of
the inconsistencies between the two.

Plaintiff requests that this matter be

remanded for a proper assessment of his ability to perform work-related activities
pursuant to SSR 96-8p.
Plaintiff’s challenge to the RFC parameters established by the ALJ lacks
merit. As set forth in the ALJ’s decision, see Dkt. No. 7-2, PgID 58-61, the ALJ
evaluated Plaintiff’s injuries suffered on August 18, 2014 and Plaintiff’s recovery
from them. The ALJ noted numerous exams, tests, doctor visits, physical therapy
sessions, and notes from all of those events. Plaintiff has not argued why or how
the medical records were inaccurate or how they were inaccurately construed by
the ALJ. Plaintiff also has not offered any other medical documentation that
contradicts the records discussed by the ALJ. And, in addition to the fact that the
ALJ engaged in a function-by-function analysis, see Dkt. No. 7-2, PgID 53-54, the
record demonstrates that the ALJ thoroughly considered Plaintiff’s testimony, the
medical records, Plaintiff’s daily activities, and the nature of Plaintiff’s treatment

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(conservative and, according to Plaintiff, exclusively by his primary care physician
relative to his back and neck pain).
For the reasons set forth above, the Court finds that the ALJ’s decision,
including but not limited to the determinations Plaintiff challenges in his
objections, was supported by substantial evidence and was not based on any legally
erroneous determination. Further, the Court accepts the Magistrate Judge’s Report
and Recommendation as this Court’s findings of fact and conclusions of law.
Accordingly,
IT IS ORDERED that the Report and Recommendation of Magistrate Judge
David R. Grand [Doc. No. 15, filed December 28, 2018] is ACCEPTED and
ADOPTED as this Court’s findings of fact and conclusions of law.
IT IS FURTHER ORDERED that Plaintiff’s Objections [Doc. No. 16,
filed January 11, 2019] are OVERRULED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary
Judgment [Doc. No. 11, filed May 7, 2018] is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary
Judgment [Doc. No. 14, filed August 2, 2018] is GRANTED.
IT IS FURTHER ORDERED that this action is DISMISSED with
prejudice.
DATED: March 26, 2019

s/Denise Page Hood
United States District Judge