Walthall v. Commissioner of Social Security

Filing 21

ORDER: 1) Overruling Objections to Magistrate Judge's Report and Recommendation; 2) Adopting 18 Report and Recommendation; 3) Denying 14 Plaintiff's Motion for Summary Judgment; and 4) Granting 15 Defendant's Motion for Summary Judgment. Signed by District Judge Victoria A. Roberts. (LVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LARRY EUGENE WALTHALL,
Plaintiff,
v.

Case No.17-14116
Honorable Victoria A. Roberts

COMMISSION OF SOCIAL SECURITY,
Defendant.
______________________________________/
ORDER:
1.

OVERRULING OBJECTIONS TO MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [DOC. 19];

2.

ADOPTING THE REPORT AND RECOMMENDATION [DOC. 18];

3.

DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DOC. 14];

4.

GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DOC. 15].
Larry Walthall (“Walthall”) alleges a disability due mainly to bipolar disorder,

schizophrenia, schizoaffective disorder, post-traumatic stress disorder and paranoia.
The Magistrate Judge (“MJ”) found that the Administrative Law Judge (“ALJ”) correctly
concluded that Walthall had not been under a disability since the date his application
was filed; the ALJ denied benefits.
Walthall filed two objections to the MJ’s Report and Recommendation (“R&R”).
The Court finds that the Commissioner’s decision is supported by substantial
evidence and OVERRULES Walthall’s objections.

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OBJECTION NO. 1. The ALJ’s Failure to obtain a medical opinion on the
issue of equivalence to Listing 12.03 was not harmless error, contrary to the
Magistrate’s finding.
In this Objection, Plaintiff says that the MJ erred in concluding that the ALJ did
not err in failing to obtain a medical opinion on equivalence, or that such failure was
harmless. The MJ found harmless error because Walthall failed to meet his burden to
demonstrate that his limitations met or equaled Listing 12.03C. Relying on Bukowski v.
Comm’r of Soc. Sec., No. 13-CV- 12040, 2014 WL 4823861 (E.D. Mich. Sept. 26,
2014), the MJ concluded that an error is harmless when remand for further medical
opinion would yield the same conclusions already reached by the ALJ.
Nonetheless, Plaintiff requests a remand for further consideration of medical
equivalency to Listing 12.03 (Schizophrenic, Paranoid, and Other Psychotic Disorders).
The Government correctly points out that Walthall’s argument is waived since he
did not make an equivalency argument before the ALJ; there he only contended that the
listing was met.
Turning to the merits of Walthall’s argument, he incorrectly assumes that the
opinion of the state agency doctor, Dr. Moten, cannot suffice as a medical opinion on
the issue of equivalence. Walthall is wrong. See Social Security Ruling 96-6p, 1996 WL
374180, at *3 (state agency reviewing expert’s signature on disability opinion or similar

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document “ensures that consideration by a physician (or psychologist) designated by
the Commissioner has been given to the question of medical equivalence”).1
Importantly, the record supports a conclusion that the ALJ considered all of the
medical evidence cited by Walthall - including medical opinions which the ALJ weighed
appropriately.
The bottom line is that Walthall had the burden - and failed to meet it - to prove
that his impairments met or equaled a listing, and that any error on the part of the ALJ
was harmless. He “fails to raise a ‘substantial question’ as to whether he has satisfied a
listing” by “point[ing] to specific evidence that demonstrates he reasonably could meet
or equal every requirement of the listing.” Smith-Johnson, 579 F. App’x at 432; see also
Zebley, 493 U.S. at 531.
The Court OVERRULES Walthall’s first Objection.
OBJECTION NO. 2: Contrary to the Magistrate’s finding, the ALJ’s decision
does not indicate that he considered the fact that Dr. Moten was not aware of
Walthall’s schizophrenia diagnosis
In this second and final objection, Walthall essentially argues that the ALJ erred
in placing great weight on the opinion of Dr. Moten when that opinion was rendered
before Walthall had been diagnosed with schizophrenia, and Dr. Moten did not have

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SSR 96-6p was in effect when the ALJ issued the Commissioner’s final decision in
September 2016 (see generally ECF No. 9-2, Tr. 1, 20-32), notwithstanding that this
SSR was rescinded in March 2017 by SSR 17-2p, 2017 WL 3928306, at *1. SSRs are
binding on all components of the agency. 20 C.F.R. § 402.35(b)(1). As the agency’s
interpretation of its own regulations, an SSR “is entitled to substantial deference and will
be upheld unless plainly erroneous or inconsistent with the regulation.” Wilson v.
Comm’r of Social Security, 378 F.3d 541, 549 (6th Cir. 2004).
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access to Walthall’s full medical file - including the schizophrenia diagnosis - when she
made her findings. Walthall says this was reversible error on the part of the ALJ to
afford great weight to the opinion of Dr. Moten.
The Government disagrees. It says there was no obligation on the part of the ALJ
to make a specific finding that Walthall was diagnosed with schizophrenia after Dr.
Moten rendered her opinion, or to specifically find that Dr. Moten erred in finding there
was no new or material evidence. Instead, what is important is that the ALJ comply with
the law set forth in Kepke by “considering the overall record and determining whether
the reviewing expert’s opinion was consistent with it, and by giving “some indication”
that the ALJ considered the nature of the non-examining source opinions and subjected
those opinions to scrutiny. Kepke, at 632-33.
As the MJ points out, the ALJ certainly considered the overall record. He
summarized the results of the entire medical record, including Walthall’s 2015 diagnosis
of schizophrenia and related findings. Further, the ALJ did not blanketly accept the RFC
limitations of Dr. Moten; the ALJ included others, such as “simple, routine, and repetitive
tasks.”

An ALJ’s reliance on a state agency opinion is within his zone of choice particularly when the ALJ adds RFC limitations based on later records. Downing v.
Berryhill, No. CV 16 - 10321, 2017 WL 2214592, at *3 (E.D. Mich. Mar. 16, 2017.
At the final step of his analysis, the ALJ considered Walthall’s age, education,
work experience, RFC, and the testimony of the vocational expert, and concluded that
there were jobs that existed in significant number that Walthall could perform. The ALJ
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made a determination that Walthall was not disabled. His RFC assessment which was
relied on - in part - to reach this conclusion - was not a medical determination driven
exclusively by Dr. Moten. Instead, it was a determination “based on all of the relevant
medical and other evidence,” that the ALJ had available to him. 20 C.F.R. s 416.945
(a)(3).
The ALJ properly assigned significant weight to the opinions of Dr. Moten, was
aware that Dr. Moten did not have the benefit of all of Walthall’s records, and gave
indication that he considered other evidence and subjected Dr. Moten’s opinions to
scrutiny.
Walthall’s second objection is OVERRULED.
The Court ADOPTS the Report and Recommendation, DENIES Plaintiff’s Motion
for Summary Judgment and GRANTS Defendant’s Motion for Summary Judgment.
Judgment will enter in favor of Defendant.
IT IS ORDERED.
s/ Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: 2/25/19

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