Miller v. Social Security, Commissioner of

Filing 22

OPINION AND ORDER Adopting Report and Recommendation 17 to Grant Defendant's Motion for Summary Judgment 15 and to Deny Plaintiff's Motion to Remand 14 . Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TRACY A. MILLER,
Plaintiff,

CASE NO. 18-11638
HON. DENISE PAGE HOOD

v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
/

OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [#17] TO GRANT DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [#15] AND TO DENY
PLAINTIFF’S MOTION TO REMAND [#14]

This matter is before the Court on a Report and Recommendation (Doc # 17)
filed by Honorable Magistrate Judge Patricia T. Morris to grant the Motion for
Summary Judgment filed by Defendant Commissioner of Social Security
(“Commissioner”) (Doc # 15) and to deny the Motion to Remand filed by Plaintiff
Tracy A. Miller (“Miller”). (Doc # 14) Miller has timely filed eight objections to the
Report and Recommendation. (Doc # 17) The Commissioner has filed a response to
the objections. (Doc # 21)
In January 2015, Miller filed an application for social security disability
benefits. The Administrative Law Judge (“ALJ”) found that Miller had the following
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injuries and conditions: depression; anxiety; post-traumatic stress disorder (PTSD);
plantar fasciitis of the right and left heels; tarsal tunnel of the right and left feet;
otalgia of the right ear; glomus tumor with conductive hearing loss and headaches;
tinnitus; obesity; degenerative disc disease of the lumbar spine with stenosis and
radiculopathy; and lower extremity peripheral neuropathy. Despite Miller’s various
ailments, the ALJ concluded that Miller did not meet the definition of “disabled”
under 42 U.S.C. § 423(d)(1)(A). The ALJ primarily based his decision on the
inconsistencies between Miller’s treating physician and her specialists, as well as his
finding that Miller would be able to engage in some “nonexertional” work.
Miller’s main arguments against the ALJ’s analysis focused on the ALJ’s
alleged misuse of the term “disabled” to evaluate her claim; decision to grant more
weight to Miller’s specialists than her primary physician; disagreements with the
mental capacity findings of the residual functional capacity assessment (“RFC”);
and decisions concerning the weight of non-medical evidence. The Magistrate Judge
noted that the ALJ’s analysis may have been vague in certain parts, but the analysis
followed proper legal guidelines and any delineations resulted in harmless error. The
Magistrate Judge further explained that the ALJ gave sufficient reasons for all his
evidentiary decisions regarding the weight given to both medical and non-medical
evidence.

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Having conducted a de novo review of the parts of the Magistrate Judge’s
Report and Recommendation to which valid objections have been filed pursuant to
28 U.S.C. § 636(b)(1), the Court ACCEPTS and ADOPTS the Report and
Recommendation, GRANTS the Commissioner’s Motion for Summary Judgment,
and DENIES Miller’s Motion to Remand.
The background procedure and facts of this matter are adequately set forth in
the Magistrate Judge’s Report and Recommendation, and the Court adopts them
here.
I.

ANALYSIS

A. Standard of Review
The standard of review by the district court when examining a Report and
Recommendation is set forth in 28 U.S.C. § 636. This Court “shall make a de novo
determination of those portions of the report or the specified proposed findings or
recommendations to which an objection is made.” 28 U.S.C. § 636(b)(1)(C). The
court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” Id. In order to preserve the right
to appeal the magistrate judge’s recommendation, a party must file objections to the
Report and Recommendation within fourteen (14) days of service of the Report and
Recommendation. Fed. R. Civ. P. 72(b)(2). Failure to file specific objections
constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 155
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(1985); Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 508-09 (6th Cir.
1991); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).
B. Miller’s Objections
1. First Objection
Miller first objects to the ALJ’s use of the term “debilitating” in contrast with
the Acting Commissioner of Social Security’s (“Commissioner”) use of the term
“disability” in connection with evaluating whether Miller is disabled. Miller argues
that the ALJ used debilitating as a synonym for “disabling.” The ALJ uses different
standards for rejecting a treating source’s medical opinion regarding whether one is
“debilitated” or “disabled.” Miller argues that the use of the word debilitating created
a higher than normal standard to be used to decide whether she meets the statutory
definition of disabled. The Commissioner responds by stating that Miller’s definition
of debilitating1 actually created a lower standard than the Social Security Act’s
definition of disability.2 [ECF No. 21, Pg.ID 956] Such a lower standard would have
helped Miller. The Commissioner further argues that while the ALJ may have used
debilitating and disability interchangeably, no error or prejudice from the ALJ’s use
of the term “debilitating” resulted.

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ECF No. 20, Pg.ID 939 (defining “debilitating” as “causing serious impairment of strength or ability to function”).
42 U.S.C. § 423(d)(1)(A) (“[I]nability to engage in any substantial gainful activity. . . .”). 

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“If an agency has failed to adhere to its own procedures, a court will not
remand for further administrative proceedings unless the claimant has been
prejudiced on the merits or deprived of substantial rights because of the agency’s
procedural lapses”. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 647 (6th Cir.
2009). Miller has not proven any prejudice or deprivation of substantial rights from
the ALJ’s use of the term “debilitating” in place of “disability.”
Miller further claims that the term “debilitating” tainted the treating source
analysis of Dr. Kloska. The ALJ stated that Dr. Kloska’s opinion was regarded with
little weight overall and given little consideration regarding the Plaintiff’s condition.
[ECF No. 17, Pg.ID 912] Any taint, that resulted from the term debilitating instead
of disabled is harmless, as discussed below with respect to Miller's second objection.
The Magistrate Judge correctly determined that, although the wrong word was
used, the ALJ applied the correct standard of law. The Court affirms the ALJ’s
decision and Miller’s first objection is denied.
2. Second Objection
Miller also objects to the ALJ’s “unorthodox approach” to analyzing the
medical evidence. Miller argues that, despite the evidentiary analysis lacking
substantial evidence, the report looks for other ways the evidence still supports the
ALJ in giving little weight to Dr. Kloska’s opinion.

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The Commissioner responds that the “unorthodox approach” to analyzing Dr.
Kloska’s opinion is harmless. The reason for giving little weight to Dr. Kloska’s
opinion was that it was inconsistent with other evidence in the case. Throat, eye, and
ear specialist Dr. Scharf examined Miller less than a month prior to Dr. Kloska
issuing his opinion. The ALJ noted that Dr. Kloska’s treatment notes were
inconsistent with those of Dr. Scharf and Dr. Naumann.
Miller asserts that the ALJ failed to discuss the “big picture” by not
recognizing the length of time Dr. Kloska had treated Miller, the frequency of
examinations, or the extent of Dr. Kloska’s treatment. Miller further asserts that the
Magistrate Judge acknowledged that the ALJ failed to grant “controlling weight” to
the treating physician, as required by Wilson v. Commissioner of Social Security,
378 F.3d 541, 544 (6th Cir. 2004).
The Magistrate Judge, however, explained that the contested portion of the
ALJ’s explanation “was not the sole reason that the ALJ gave little weight to Dr.
Kloska’s opinion.” When examining the ALJ’s other explanations, the Magistrate
Judge reasoned that the approach used by the ALJ to examine Dr. Kloska’s opinion
was unique, but Miller failed to demonstrate any prejudice. Due to Plaintiff’s failure
to demonstrate any prejudice, the Court agrees with the Magistrate Judge’s
recommendation, and Miller’s second objection is denied.
3. Third Objection
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Miller asserts that the Magistrate Judge erred when reviewing the ALJ’s
decision not to assign the appropriate weight to Dr. Kloska’s opinion when
conducting his analysis. As to the use of the term “debilitating” versus “disability,”
Miller argues that the wrong word and wrong standard were used. The ALJ attributed
little weight to Dr. Kloska’s opinion because it was inconsistent with other medical
sources and lacked the support of medically acceptable clinical and laboratory
diagnostic techniques. [ECF No. 11-2, Pg.ID 67-68]
Warner v. Comm’r of Soc. Sec., opines that “a treating source opinion is due
controlling weight only when it is well supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with other substantial
evidence.” 375 F.3d 387, 391 (6th Cir. 2004). In this case, there are numerous
examples, including: (a) Dr. Kloska stated that Miller would experience pain from
headaches multiple times a day and as a result would need to lie down hourly. [ECF
No. 17, Pg.ID 914-917]; (b) Dr. Scharf’s treatment notes included no mention of
headaches so severe that they would cause the limitations Dr. Kloska noted; (c) Dr.
Naumann performed two tumor removal surgeries on Miller; and (d) when being
treated by Dr. Naumann, Miller denied dizziness, unsteadiness, vertigo, and other
serious symptoms. In communicating with Dr. Kloska, Dr. Naumann never indicated
that Miller was expected to continue experiencing headaches at all, “let alone of a
severity that rendered her unable to work.” [Id. at 914]
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The Magistrate Judge’s Report found that proper weight was given to Dr.
Kloska’s medical opinion and that it was ultimately given less weight because he
was not a specialist. See 20 C.F.R. § 404.1527(c)(5) (“We generally give more
weight to the medical opinion of a specialist about medical issues related to his or
her area of specialty than to the medical opinion of a source who is not a specialist.”).
The Magistrate Judge found substantial evidence to support the ALJ’s decision to
apply little weight to Dr. Kloska’s opinion. It is the Court’s opinion that the
Magistrate Judge applied the correct standard in deciding this.
4. Fourth Objection
Miller next objects to the ALJ’s assumption that Dr. Kloska’s opinion is based
largely on Miller’s subjective complaints rather than a factual condition. Miller
claims that the ALJ failed to describe how the limitations in Dr. Kloska’s opinion
are based on Miller’s “own subjective assessment” and cites ongoing treatment for
“severe headaches” and recent surgeries as support. [ECF No., 14 Pg.ID 798]
The ALJ considered Dr. Kloska’s treatment notes as “merely the narrative
description of plaintiff’s subjective complaints and symptoms and not opinions
regarding plaintiff's limitations or restrictions.” [ECF No. 11-2, Pg.ID 67] Dr.
Kloska’s physical exam offered no “red flags” unlike in the treatment notes. Miller
has severe impairments but there are no specific functional limitations in the RFC
assessment. Higgs v. Brown, 880 F.2d 860, 863 (6th Cir. 1988); see also Yang v.
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Comm’r of Soc. Sec., No. 00-10446-BC, 2004 WL 1765480, at *5 (E.D. Mich. July
14, 2004) (“A claimant’s severe impairment may or may not affect his or her
functional capacity to do work.”).
The Magistrate Judge correctly reasoned that Miller’s assessment comes
directly from her own personal experiences rather than from third-parties. Miller
does not adequately describe how her observations would qualify as “objective” and
not subjective. The Magistrate Judge held that Dr. Kloska’s treatment records are
lacking significant objective findings, but his opinions are based largely on Miller’s
subjective reports. The Court finds that there is substantial evidence that supports
the ALJ’s conclusion that Dr. Kloska’s opinion is “substantially” based on Miller’s
subjective complaints. Miller’s fourth objection is overruled.
5. Fifth Objection
Miller also argues that the ALJ failed to provide her with an adequate 1527
analysis. An adequate 1527 analysis refers to the proper balancing test to be used
when analyzing the treating source opinion to decide whether a person is disabled.
C.F.R. § 404.1527. There is no requirement that the ALJ discuss all six factors under
the rule, however, it must be clear that all six factors were at least be considered.
The six required factors an ALJ must consider when weighing medical opinions are:
(1) whether the medical professional examined the claimant; (2) the treatment
relationship, including the length of time and the nature and extent of the
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relationship; (3) supporting medical evidence; (4) the consistency of the medical
opinion with the entire record; (5) medical specializations; and (6) other relevant
factors. C.F.R. § 404.1527(c)(1)-(6). But there is no need for “a step-by-step analysis
of each factor.” Biestek v. Comm’r of Soc. Sec., 880 F.3d 778, 785 (6th Cir. 2017).
Miller argues that the first two factors (Dr. Kloska’s actual examination of her
and the extent of their doctor-patient relationship) were never considered and if they
were, Dr. Kloska’s opinion would have been given much more weight.
The Court finds that the ALJ considered the length and nature of Dr. Kloska’s
treatment notes by discussing the doctor’s treatment history and agrees with the
Magistrate Judge, that the ALJ considered all the other factors (Dr. Kloska’s
examination, Miller’s relationship with Dr. Kloska, relevant supporting evidence,
the consistency of Dr. Kloska’s opinion with the overall record, and the medical
specialties of Drs. Scharf and Naumann). Miller’s fifth objection is overruled.
6. Sixth Objection
Miller believes that the Magistrate Judge went beyond the scope of the ALJ
decision, especially the ALJ’s alleged failure to document all medical evidence
supporting the conclusion to give Dr. Kloska’s opinion “little weight.” Miller argues
that the Report and Recommendation does not cite evidence, but instead only a
subjective conclusion that was never discussed by the trier-of-fact.

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Miller uses Friend v. Commissioner of Social Security to argue that the ALJ
improperly ignored procedure when discounting Dr. Kloska’s treating opinion. See
375 F. App’x 543, 551 (“A failure to follow the procedural requirement ‘of
identifying the reasons for discounting the opinions and for explaining precisely how
those reasons affected the weight accorded the opinions denotes a lack of substantial
evidence, even where the conclusion of the ALJ may be justified based upon the
record.’”) (quoting Rogers v. Comm’r of Soc. Sec., 486 F. 3d 234, 243).
Although the Court finds the reasoning in Friend persuasive, it does not find
Friend applicable to the instant case. In Friend, the ALJ did not give “good reasons
for discounting” the plaintiff’s treating physician. However, in Miller’s case, after
accounting for relevant factors such as Miller’s past appointments and relationship
with Dr. Kloska, the ALJ explained that the treating physician—Dr.Kloska—was
not a specialist and merely served as the “gatekeeper” for receiving Miller’s relevant
records from specialists. The Magistrate Judge was satisfied that the ALJ’s
explanation included the necessary “good reasons” to give more deference to the
specialists Drs. Scharf and Naumann. The Magistrate Judge also found that any error
in the ALJ’s consideration of Dr. Kloska’s opinion was harmless because Dr.
Kloska’s medical source statement was a “check-the-box” form with a lack of
narrative analysis. The Court agrees that the Magistrate judge was correct in

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affirming the ALJ’s decision. There is sufficient evidence proving that the correct
standard was used. Miller’s sixth objection is overruled.
7. Seventh Objection
Miller contests whether the ALJ’s RFC accurately portrays her mental
impairments. Miller claims that the ALJ did not comply with S.S.R. 96-8p. Miller
argues that the ALJ is incorrect by failing to “tie the nonexertional mental portion
with any evidence of case record, particularly that of Dr. Pestrue.” [ECF No. 14,
Pg.ID 805] Miller further contends that the ALJ cannot square a finding of four
“moderate” mental limitations “with the benign mental RFC simple oral instructions
and simple work decisions” in the RFC. [ECF No. 20, Pg.ID 951]
The Magistrate Judge correctly found that the RFC included several
nonexertional restrictions, limiting Miller’s tasks to “hearing and understanding
simple oral instructions” and finding Miller “able to understand, carry out, and
remember simple instructions . . . and interact [with people].”
As to Miller’s other issues with the RFC, the Magistrate Judge correctly noted
that Miller failed to suggest what other nonexertional limitations the ALJ should
have included in the RFC to account for Miller’s mental impairments. See Howard
v. Secretary of HHS, 932 F.2d 505 (6th Cir. 1991) (“A plaintiff waives the right to
appeal when they fail to file specific objections to the magistrate’s
recommendation.”); see also Jordan v. Comm’r of Soc. Sec., 548 F.3d 417, 423 (6th
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Cir. 2008) (“The claimant bears the burden of demonstrating the need for a more
restrictive RFC.”).
Miller’s argument—that having four “moderate” mental limitations does not
align with the RFC the ALJ proffered—is not supported by any legal citation, and
she has failed to identify any flaw in the Magistrate Judge’s analysis. The Court
concurs with the Magistrate Judge that there is substantial evidence to support the
ALJ’s RFC assessment, as it pertains to any of Miller’s mental impairments. Miller’s
seventh objection is overruled.
8. Eighth Objection
Miller’s eighth objection to the Magistrate Judge’s analysis stems from the
lack of weight given to Miller’s mother’s letter. The letter is a detailed, three-page
letter explaining how Miller’s mother cares for her daughter, her daughter’s history
working as a CNA, how Miller developed problems with pain, and other topics
related to Miller’s disability. S.S.R. 96-7p, superseded by S.S.R. 16-3p, however,
only applies to statements by a claimant about her symptoms; it does not apply to a
witness statement. Accordingly, the conclusion that the letter from Miller’s mother
holds less weight and any resulting error based on that, is harmless.
The Court rejects Miller’s opinion that the ALJ failed in analyzing the letter
because the rationale provided in the ALJ’s decision does not comply with S.S.R.

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06-03p. This ruling allows statements from relatives (such as Miller’s mom) who
can observe the claimant to explain the severity of symptoms.
The Court finds that the ALJ discounted the mother’s letter because she lacked
the medical training necessary to make the observations featured throughout the
letter. The letter is also inconsistent with other evidence on record, including the
“copy and paste” list of evidence that conflicted with the statements in the letter. The
Court agrees with the Magistrate Judge’s finding that the ALJ properly assessed how
much weight should be given to the mother’s letter. Miller’s eighth objection is
overruled.
III.

CONCLUSION
For the reasons set forth above,
IT IS ORDERED that Magistrate Judge Patricia T. Morris’s Report and

Recommendation (Doc # 17, filed June 11, 2019) is ACCEPTED and ADOPTED
as this Court’s findings of fact and conclusions of law.
IT IS FURTHER ORDERED that Defendant Commissioner of Social
Security’s Motion for Summary Judgment (Doc # 15, filed October 23, 2018) is
GRANTED.
IT IS FURTHER ORDERED that Plaintiff Tracy A. Miller’s Motion to
Remand (Doc # 14, filed October 1, 2018) is DENIED.

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IT IS FURTHER ORDERED that this action is DISMISSED with prejudice.

s/Denise Page Hood
United States District Judge
DATED: September 30, 2019

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