Moore v. Saul
ORDER Adopting 25 Report and Recommendation. Signed by District Judge Terrence G. Berg. (AChu)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
JAMES O. MOORE,
ORDER ADOPTING REPORT
(ECF NO. 25)
COMMISSIONER ANDREW M.
This matter is before the Court on Magistrate Judge Patricia T.
Morris’ report and recommendation of January 29, 2021, recommending
that Plaintiff’s motion for summary judgment be denied, that
Defendant's motion for summary judgment be granted, and that the
findings and conclusions of the Commissioner be affirmed. ECF No. 25.
The Court has reviewed Magistrate Judge Morris’ report and
recommendation, and Plaintiff's objections thereto. For the reasons set
forth below, Plaintiff’s objections are OVERRULED, and the report and
recommendation is ACCEPTED and ADOPTED as the Court’s findings
of fact and conclusions of law. Consequently, the decision of the
Commissioner denying Plaintiff's disability claim is AFFIRMED.
The Court will highlight key points from Judge Morris’ extensive
summation of the long history of this case. R. & R., ECF No. 25,
PageID.1849-75. Plaintiff seeks to establish that he was disabled for the
period between November 17, 2007 and September 8, 2016, having
already received a favorable determination for the time period after that
to the present. He has had several unfavorable determinations of
disability and appeals. An unfavorable determination issued on June 29,
2016, was appealed to the district court, which reversed the
administrative law judge’s decision (“ALJ”) and remanded the case under
sentence four of 42 U.S.C. § 405(g).
On remand, the district court’s order (and subsequent remand from
the Appeals Council) directed the ALJ to complete what it determined
were two missing components of the disability analysis: (1) submitting
the results of an MRI conducted in 2010 to medical scrutiny, and (2) reevaluating Moore’s credibility (now more properly called a “symptoms
evaluation”) also in light of the 2010 MRI results. The ALJ held a hearing
on April 17, 2019. Moore was present at this hearing and testified. Dr.
Ronald Kendrick, a medical expert, and Amelia Shelton, a vocational
expert, also testified. ALJ Hr’g Decision, ECF No. 15-21, PageID.1409.
In a decision issued on May 24, 2019, the ALJ once again found
Moore was not disabled in the time period in question. In considering the
five-step analysis used to determine whether an individual has a
disability, see ECF No. 25, PageID.1851-52, the ALJ found that Moore’s
claim failed at step five. Specifically, she determined that he had a
residual functional capacity (“RFC”) for light work. ECF No. 15-21,
PageID.1420. She also determined that, although he was unable to
perform any past relevant work, there were jobs in significant numbers
in the national economy that he could have performed, meaning he was
not disabled in the time period in question. Id. at PageID.1438. The
missing analysis ordered by the district court is reflected in the ALJ’s
discussion and eventual conclusion regarding Moore’s RFC. Id. at
Moore sought judicial review of this most recent decision on
September 20, 2019. ECF No. 1. Parties timely filed cross motions for
summary judgment, and these issues are now before the Court along with
Judge Morris’ report and recommendation.
STANDARD OF REVIEW
The law provides that either party may serve and file written
objections “[w]ithin fourteen days after being served with a copy” of the
report and recommendation. 28 U.S.C. § 636(b)(1). Plaintiff filed timely
objections (ECF No. 26) to the report and recommendation; Defendant
filed a response (ECF No. 27) to Plaintiff's objections. This Court must
conduct a de novo review of the parts of a report and recommendation to
which a party objects. See 28 U.S.C. § 636(b)(1). “A judge of the court may
accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate judge
with instructions.” Id.
As for any parts of the report and recommendation that are
reviewed de novo, the Court’s judicial review is nevertheless
circumscribed: the court “must affirm the Commissioner's conclusions
absent a determination that the Commissioner has failed to apply the
correct legal standard or has made findings of fact unsupported by
substantial evidence in the record.”1 Longworth v. Comm'r of Soc. Sec.,
402 F.3d 591, 595 (6th Cir. 2005). Substantial evidence is not a high
standard, requiring “more than a scintilla of evidence but less than a
preponderance.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th
Different kinds of evidence are generally given different weight.
Evidence can come from an “acceptable medical source” or “other
sources.” 20 C.F.R. §§ 404.1513 (amended March 27, 2017), 416.913
(amended March 27, 2017). An opinion from a medical source who has
examined the claimant is generally given more weight than one who has
not, and in particular the opinion of someone who regularly treats the
claimant (treating-source opinion) must be given “controlling weight” if
clinical and laboratory
The ALJ’s decision stands as the Commissioner’s final decision. See 20
C.F.R. § 404.981.
diagnostic techniques” and “not inconsistent with the other substantial
evidence in [the] case record.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2);
see also Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 375 (6th Cir.
2013). Opinions from non-treating and non-examining sources are
specialization, consistency, and supportability.” Id.
Finally, “an ALJ can consider all the evidence without directly
addressing in his written decision every piece of evidence submitted by a
party. Nor must an ALJ make explicit credibility findings as to each bit
of conflicting testimony, so long as his factual findings as a whole show
that he implicitly resolved such conflicts.” Kornecky v. Comm'r of Soc.
Sec., 167 F. App'x 496, 508 (6th Cir. 2006) (quoting Loral Defense
Systems-Akron v. N.L.R.B., 200 F.3d 436, 453 (6th Cir. 1999)).
A. Findings regarding opinion evidence
Moore’s first objection is that Judge Morris incorrectly evaluated
the ALJ’s consideration of three different doctors’ medical source opinion
evidence as related to the ALJ’s subsequent determination that Moore
had an RFC for light work. The Court will consider each.
Moore alleges that the ALJ “misstated or ignored” medical expert
Dr. Kendrick’s testimony at the hearing, substituting her interpretation
of the medical record for his, and that therefore Judge Morris erred in
finding this opinion evidence appropriately evaluated. Obj., ECF No. 26,
As to the first claim, the Court does not find that Dr. Kendrick’s
testimony (Hr’g Tr. 4/17/19, ECF No. 16-2, PageID.1736-40) was
misstated. The ALJ’s decision provides a brief and accurate summary of
Dr. Kendrick’s responses to her questions during the hearing. ECF No.
15-21, PageID.1431. While she did not re-state the testimony in full or
describe every topic that was covered, she was not required to do so, and
the summary provided was adequate. Kornecky, 167 F. App'x at 508.
As to the second claim, Moore makes a number of allegations that
Dr. Kendrick’s testimony was “ignored.” These allegations generally
object to the way Dr. Kendrick’s evidence was used, or not used, in the
ALJ’s final decision. But Dr. Kendrick was a non-treating, nonexamining physician—of the different doctors’ medical source opinion
evidence available to the ALJ, it would be expected that Kendrick’s would
be given the least weight, and therefore the least specific mention. The
ALJ was also not required to explain exactly how each part of Dr.
Kendrick’s testimony was or was not used in determining whether
substantial evidence supported her final conclusions.
Specifically related to the reason for the remand, Moore lists
several topic areas on which he believes the ALJ should have questioned
Dr. Kendrick. ECF No. 26, PageID.1895. But the remand only instructed
the ALJ to submit the results of the MRI to medical scrutiny, which she
did when she asked Dr. Kendrick the following: “And with respect to the
MRIs that are contained in the file, what would be your conclusions?”
ECF No. 16-2, PageID.1737. Any further inquiry was at the ALJ’s
Lastly, Moore alleges that Dr. Kendrick’s use of the words
“moderate impairment” was improperly interpreted and applied by the
ALJ in deciding that Moore was capable of light work, and that this is
error in part because Dr. Kendrick was never specifically asked about
how Moore’s condition might translate into functional limitations. ECF
No. 19, PageID.1767. It would certainly be error for the ALJ to have
substituted her own “interpretation of the medical records for that of a
physician who has examined the records.” Brown v. Comm'r of Soc. Sec.,
602 Fed. Appx. 328, 331 (6th Cir. 2015). But Moore cannot cite to any
part of the ALJ decision where this through-line between Dr. Kendrick’s
testimony and the eventual RFC determination of “light work” is so clear.
recommendation that discusses the ALJ’s treatment of Dr. Kendrick’s
evidence, the Court affirms Judge Morris’ conclusion that there was no
Moore next alleges multiple errors related to the ALJ’s treatment
of Dr. Stewart’s opinions. ECF No. 26, PageID.1897-1900.
Dr. Stewart first evaluated Moore in July 2010, reviewing x-rays
and the 2010 MRI. Dr. Stewart had several follow-up visits with him
through October 2011. ECF No. 15-21, PageID.1425-27. Her main
conclusions were that Moore “would be unable to return to a job as a
machinist. He would require a job that would allow him to change
position frequently and he would be unlikely to tolerate a full 8 hours at
work especially initially.” ECF No. 15-16, PageID.1060. The ALJ gave
great weight, little weight, and no weight, respectively, to these three
opinions. ECF No. 15-21, PageID.1435-36.
Moore objects to the latter two conclusions and argues that all of
Dr. Stewart’s opinion should have been given great weight. ECF No. 26,
PageID.1898. It is correct that a treating-source opinion is given
controlling weight if it is well supported by clinical evidence and not
inconsistent with other medical evidence in the record. See Gayheart, 710
F.3d at 375. But Judge Morris correctly points out that when the ALJ did
not give Dr. Stewart controlling weight on the issue of positional
limitations, it was because of an “inconsistency between her opinion and
her treatment record” and because it was not supported by corresponding
clinical findings. ECF No. 25, PageID.1883-84. Likewise, she was within
her discretion to give no weight to the opinion regarding Moore’s ability
to complete a full workday because this is an issue reserved for the
Commissioner to decide. 20 C.F.R. § 1520b(c)(3); Cosma v. Comm’r of Soc.
Sec., 652 F. App’x 310, 311 (6th Cir. 2016).
Moore argues that the ALJ again “played doctor” by seemingly
rejecting Dr. Stewart’s evaluation of the MRI in finding an RFC of light
work. ECF No. 26, PageID.1898. But Moore again cannot identify any
direct connection between Dr. Stewart’s testimony regarding the MRI
results and the ALJ’s eventual RFC determination. Moore cites to other
evidence in the record consistent with a finding of disability, and, to his
mind, consistent with Dr. Stewart’s evaluations, such that it was error
for the ALJ to conclude as she did. But substantial evidence of an opposite
conclusion cannot disturb an ALJ’s finding if there is also substantial
evidence in the record supporting the ALJ’s decision. Buxton v. Halter,
246 F.3d 762, 772 (6th Cir. 2001).
Fundamentally, it is the ALJ’s job to thoroughly weigh the
presented evidence in reaching a conclusion, and the ALJ did so here by
considering Dr. Stewart’s opinion evidence as well as her treatment
notes. ECF No. 15-21, PageID.1342, 1345-46. The Court does not find
that the ALJ committed any legal error in this evaluation or that her
eventual conclusions were unsupported by substantial evidence, and
therefore affirms Judge Morris’ conclusion on this issue.
Moore’s final objection focusing on medical source opinion evidence
relates to the ALJ’s use of Dr. R. Scott Lazzara’s opinion. ECF No. 26,
The ALJ gave great weight to the treating-source opinion of Dr.
Lazzara, who conducted a physical consultative exam in October 2014.
The ALJ found Dr. Lazzara’s opinion to be “consistent with his clinical
observations as well as diagnostic imaging included in the record.” ECF
No. 15-21, PageID.1434. Judge Morris found that the ALJ appropriately
weighed Dr. Lazzara’s opinion in arriving at her eventual decision.
Moore’s objection to this evidence centers on Dr. Lazzara’s finding
that Moore could “carry, push, and pull less than 20 pounds.” ECF No.
15-21, PageID.1434. An RFC of light work requires that an individual be
able to lift “up to” twenty pounds, and Moore argues it is error to translate
the ability to move “less than” twenty pounds into an RFC requiring lift
of “up to” twenty pounds without asking the vocational expert at the
hearing specific questions about this differential. ECF No. 26,
But the Court agrees with Judge Morris that, in this context, the
difference between “up to 20 pounds” and “less than 20 pounds” has no
practical significance. The vocational expert at the hearing was asked to
provide information about “light exertion” jobs. ECF No. 16-2,
PageID.1741. Plaintiff indicates that vocational experts understand light
work to mean lifting “no more than” twenty pounds. ECF No. 26,
PageID.1901. The information provided by the expert about “light
exertion” jobs would therefore have been entirely consistent with Dr.
Lazzara’s finding and with the ALJ’s eventual determination of an RFC
of light work. The Court finds no error in the consideration of Dr.
Lazzara’s findings and affirms Judge Morris’ conclusion regarding this
B. Finding regarding subjective symptoms
Moore’s second objection is that Judge Morris improperly affirmed
some of the ALJ’s conclusions about Moore’s subjective description of his
symptoms. Moore objects particularly to the ALJ’s decisions to discount
some of Moore’s own descriptions of the amount of pain he was in and the
extent of loss of function he was suffering from, arguing that these parts
of her decision are not based on substantial evidence. ECF No. 26,
First, Moore states that the MRI results were not appropriately
addressed and that therefore any conclusions about Moore’s description
of his symptoms are not based on substantial evidence. Id. Again, it is
correct that this case was remanded for another hearing in part to submit
the results of the 2010 MRI to medical scrutiny. But the ALJ asked
medical expert Dr. Kendrick about the MRI at the hearing and
incorporated both Dr. Kendrick and Dr. Stewart’s findings regarding the
MRI into her eventual conclusion. Evaluation of the MRI is not a
dispositive issue on which the presence or absence of “substantial
evidence” depends—the remand instructed the ALJ to subject the MRI to
scrutiny, but did not prescribe any particular weight that findings related
to the MRI needed to have in the ALJ’s final conclusions. The fact that
the MRI is not described as a more significant component of the analysis
regarding Moore’s RFC is not an indication that the RFC conclusion is
not supported by substantial evidence.
Moore also objects to the ALJ’s decision to discount his testimony
that he spends most days in a recliner as being inconsistent with a lack
of muscle atrophy, because no medical expert specifically suggested this
connection. Id. at PageID.1903. But the ALJ did not discount his
testimony solely on this basis: she also noted that treatment providers
“typically observed normal muscle tone . . . and no evidence of atrophy”
in determining that their observations “appear inconsistent with the
claimant’s reported frequency and severity of his symptoms and
limitations.” ECF No. 15-21, PageID.1432. This finding is therefore
appropriately supported by substantial evidence.
He next claims that the ALJ erred in finding that his cervical fusion
(a prior surgery of the C6/C7 vertebrae in 2003) remained stable because
Dr. Stewart made a finding of adjacent segment disease. ECF No. 26,
PageID.1903; see Stewart Report at ECF No. 15-16, PageID.1060. But
the ALJ’s specific finding was that “diagnostic imaging . . . shows that
the claimant’s prior cervical fusion remained stable.” ECF No. 15-21,
PageID.1342. The ALJ’s conclusion focuses on whether there was an
issue with the cervical fusion itself, and the specific portion of the spine
involved in that procedure. It does not make any judgment related to
adjacent segment disease in another part of the spine. This finding is also
appropriately supported by substantial evidence.
Lastly, Moore objects to the ALJ citing his conservative treatment
plans as evidence that he had an RFC for light work, suggesting that his
treatment plan was conservative only due to his inability to afford more
intensive care. ECF No. 26, PageID.1903. But a history of conservative
treatment can properly be considered by an ALJ when evaluating the
subjective statements made by a claimant about their pain and deciding
how to credit them. Ward v. Comm'r of Soc. Sec., No. 18-12477, 2019 WL
4891478, at *7 (E.D. Mich. Aug. 13, 2019), rep. and rec. adopted, 2019 WL
4386070 (E.D. Mich. Sept. 13, 2019). And the record is clear that the ALJ
knew Moore was not always covered by health insurance, and that she
“considered the loss of benefits as a factor in the evidence of limited
medical treatment.” ECF No. 15-21, PageID.1432. Her findings that his
subjective descriptions of his pain were inconsistent with his generally
conservative treatment regimens and that the conservative treatment
was not solely due to his inability to pay are still supported by substantial
evidence in the record—for example, when he regained insurance in
2011, Dr. Stewart’s only recommendation was for him to return to
physical therapy, rather than surgery or any more intensive treatment.
ECF no. 15-16, PageID.1060. This finding and the decision of the ALJ to
not fully credit Moore’s subjective descriptions in determining his RFC
are therefore appropriately supported.
The Court acknowledges that these proceedings have gone on for
some time and that, in Mr. Moore’s words at his 2019 hearing, they have
been “overwhelming.” However, the Court must make its decisions based
on the law in this area and the record of the proceedings. After careful
review, Plaintiff's objections do not warrant disturbing Magistrate Judge
As such, the Court hereby ACCEPTS AND ADOPTS Magistrate
Judge Morris’ report and recommendation (ECF No. 25) as this Court's
findings of fact and conclusions of law. Plaintiff's motion for summary
judgment (ECF No. 19) is DENIED, Defendant's motion for summary
judgment (ECF No. 21) is GRANTED, and the findings and conclusions
of the Commissioner are AFFIRMED.
DATED this 31st day of March, 2021.
BY THE COURT:
/s/Terrence G. Berg
TERRENCE G. BERG
United States District Judge
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