Bundy v. Commissioner of Social Security
OPINION AND ORDER Adopting 17 Report and Recommendation, Granting 15 Motion for Summary Judgment filed by Commissioner of Social Security, Denying 13 Motion for Summary Judgment filed by Mary Sue Bundy, Affirming the Findings of the Commissioner and Dismissing Complaint. Signed by District Judge David M. Lawson. (SPin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
MARY SUE BUNDY,
Case Number 20-10254
Honorable David M. Lawson
Magistrate Judge Patricia T. Morris
COMMISSIONER OF SOCIAL SECURITY,
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION, DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT, GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT, AFFIRMING THE FINDINGS OF
THE COMMISSIONER, AND DISMISSING COMPLAINT
Plaintiff Mary Sue Bundy, a 40-year-old woman, says that she cannot work because of a
variety of physical and mental disabilities. Her applications for disability insurance benefits and
supplemental security income (SSI) under Title II and Title XVI of the Social Security Act were
denied after an administrative hearing, and she filed this case seeking review of the
Commissioner’s decision. The case was referred to United States Magistrate Judge Patricia T.
Morris under 28 U.S.C. § 636(b)(1)(B) and E.D. Mich. LR 72.1(b)(3). Thereafter, the plaintiff
filed a motion for summary judgment to reverse the decision of the Commissioner and remand the
case for an award of benefits or for further consideration by the administrative law judge. The
defendant filed a motion for summary judgment requesting affirmance of the decision of the
Commissioner. Magistrate Judge Morris filed a report on January 29, 2021, recommending that
the defendant’s motion for summary judgment be granted, the plaintiff’s motion for summary
judgment be denied, and the decision of the Commissioner be affirmed. The plaintiff filed timely
objections, and the defendant filed a response. The matter is now before the Court.
Bundy, who is now 40 years old, filed her applications for disability and SSI benefits on
June 23, 2017, when she was 36. She received a GED and previously worked as an assembler,
waitress, and bartender. She alleges that she is disabled as a result of her arthritis, chronic pain
syndrome, history of epigastric pain, depression, and anxiety. In her applications for benefits, the
plaintiff alleged a disability onset date of May 30, 2017.
Bundy’s applications for disability and SSI benefits were denied initially on October 20,
2017. She timely filed a request for an administrative hearing, and on December 13, 2018, she
appeared before administrative law judge (ALJ) Jennifer Overstreet. On January 25, 2019, ALJ
Overstreet issued a written decision in which she found that Bundy was not disabled. On
December 3, 2019, the Appeals Council denied Bundy’s request for review of the ALJ’s decision.
On January 31, 2020, the plaintiff filed her complaint seeking judicial review of the denial of her
ALJ Overstreet determined that Bundy was not disabled by applying the five-step
sequential analysis prescribed by the Secretary of Social Security in 20 C.F.R. §§ 404.1520,
416.920. At step one of the analysis, ALJ Overstreet found that Bundy had not engaged in
substantial gainful activity since May 30, 2017. At step two, she found that Bundy suffered from
rheumatoid arthritis, inflammatory arthritis, chronic pain syndrome, history of epigastric pain,
depression, and anxiety — impairments that were “severe” within the meaning of the Social
Security Act. ALJ Overstreet then determined that Bundy’s other impairments — restless leg
syndrome and hypertension — were not severe. At step three, ALJ Overstreet determined that
none of the severe impairments, alone or in combination, met or equaled a listing in the regulations.
Before proceeding further, the ALJ determined that Bundy retained the functional capacity
(RFC) to perform light work as defined in 20 CFR 404.1567(b), with certain limitations. The ALJ
determined that Bundy (1) only occasionally can climb ramps and stairs, kneel, crouch, and crawl,
(2) frequently can balance, (3) never can climb ladders, ropes, or scaffolds, (4) should avoid
workplace hazards such as unprotected heights and moving mechanical parts, (5) should avoid
working in conditions of extreme heat, cold, humidity, or wetness, (6) should have a sit-stand
option allowing her to change positions every 30 minutes for one or two minutes, within the area
immediately near her workstation, (7) is limited to simple tasks in a routine work setting, but not
at a production rate pace (e.g., she cannot work on an assembly line), and (8) is limited to
occasional interaction with supervisors, coworkers, and the public.
At step four of the analysis, the ALJ found that the plaintiff is unable to perform her past
relevant work as a production assembler, waitress, or bartender, which the ALJ characterized as
being semi-skilled jobs with light to medium levels of exertion. At step five, the ALJ found that,
based on Bundy’s RFC, and relying on the testimony of a vocational expert, the plaintiff could
perform the duties of representative occupations including office helper (over 70,000 positions in
the national economy), merchandise marker (over 80,000 positions in the national economy), and
sorter (over 70,000 positions in the national economy). Based on those findings — and noting
that, if the plaintiff had the capacity to perform a full range of light work, then a “not disabled”
finding would have been mandated by Medical Vocational Rule 202.21 — the ALJ concluded that
Bundy was not disabled within the meaning of the Social Security Act.
In her motion for summary judgment, Bundy raised two arguments. First, she argued that
the ALJ’s RFC finding was not supported by substantial evidence because the ALJ failed properly
to weigh the opinion of the plaintiff’s treating physician, Dr. Kevin Bohnsack. Second, she argued
that the RFC finding also was unsupported because the ALJ failed to afford proper weight to
another treating physician, Dr. Luven Tejero.
The magistrate judge rejected those arguments. She found that the ALJ drew on several
sources in determining Bundy’s RFC and provided a thorough rationale for declining to adopt
many of the medical opinions in their entirety and instead according partial weight to the various
consultative and non-examining sources. Judge Morris noted that the plaintiff’s arguments did not
specifically invoke the treating source rule, and she did not contend that an improper weight was
assigned to the treating doctors’ opinions, but instead she argued that the ALJ failed to articulate
sufficiently the reasons for giving the weight that was afforded to those opinions.
The plaintiff filed one objection to the magistrate judge’s report and recommendation. The
filing of timely objections to a report and recommendation requires the court to “make a de novo
determination of those portions of the report or specified findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667 (1980);
United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This de novo review requires the court to
re-examine all of the relevant evidence previously reviewed by the magistrate judge in order to
determine whether the recommendation should be accepted, rejected, or modified in whole or in
part. 28 U.S.C. § 636(b)(1).
“The filing of objections provides the district court with the opportunity to consider the
specific contentions of the parties and to correct any errors immediately,” Walters, 638 F.2d at
950, enabling the court “to focus attention on those issues-factual and legal-that are at the heart of
the parties’ dispute,” Thomas v. Arn, 474 U.S. 140, 147 (1985). As a result, “‘[o]nly those specific
objections to the magistrate’s report made to the district court will be preserved for appellate
review; making some objections but failing to raise others will not preserve all the objections a
party may have.’” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (quoting
Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987)).
The plaintiff contends that the magistrate judge erred in her review of the ALJ’s RFC
findings, because she “impermissibly re-weighed the evidence of record, failed to address [the
plaintiff’s] contentions, misapplied the regulations, and ignored the emerging case law in response
to the new regulations.” The plaintiff argues that both the ALJ and the MJ glossed over medical
notes from the University of Michigan, which stated a diagnosis of rheumatoid arthritis,
disregarding the objective physical observations of joint tenderness and other physical symptoms
that were recorded. The plaintiff also asserts that the ALJ’s decision incorrectly cited a page of
the medical notes as relating to her arthritis treatment, when the notes cited actually related to
treatment for dyspnea. The plaintiff also argues that the ALJ and the MJ disregarded medical notes
stating that the plaintiff suffered “intolerable side effects” from the medications that were
prescribed for her arthritis. The plaintiff further argues that the fact that the MJ had to resort to
conducting her “own review of the record” when analyzing Dr. Tejero’s opinion bolsters her
position that the ALJ did not adequately consider that opinion, because no discussion about any
treatment of the plaintiff’s mental limitations was included anywhere in the ALJ’s ruling. The
plaintiff contends that the failure adequately to discuss Dr. Tejero’s opinion could not be excused
on the basis of information in the record that the ALJ “could have relied on,” because the decision
must be supported by substantial evidence that actually is recited in the ALJ’s findings. The
plaintiff further argues that the MJ adopted “strange” and “circular” reasoning by concluding that,
even though the decision not to include any mental limitations recognized by Dr. Tejero was not
explained by the ALJ, the failure to articulate any reasoning for ignoring the opinion was
Finally, the plaintiff argues that the MJ misapplied the extant regulations on
consideration of medical sources by disregarding the fact that, even under the revised criteria of
20 C.F.R. §§ 404.1520c(a), the ALJ still must articulate reasons for her treatment of a medical
opinion, even though she no longer is required to assign medical opinions particular weights
according to any predetermined categorical hierarchy.
The ALJ applied the current regulations when considering the opinions of the plaintiff’s
treating physicians. As the magistrate judge explained, those regulations relaxed the requirements
of the former provisions, which created a hierarchy of medical sources and commanded a sliding
scale of required acceptance at the administrative level. See 20 C.F.R. § 404.1527(c)(2); Walker
v. Sec’y of Health & Human Servs., 980 F.2d 1066, 1070 (6th Cir. 1992). Now, the ALJ is required
to consider all medical sources on an equal footing, 20 C.F.R. §§ 404.1520c(a), assessing medical
opinions according to their supportability (in light of “objective medical evidence”) and
consistency (comparing the opinion to “evidence from other medical sources and nonmedical
sources”), the relationship of the medical source with the claimant, the medical source’s
specialization, and other factors that “tend to support or contradict a medical opinion,” 20 C.F.R.
§§ 404.1520c(c)(1)-(5). The ALJ wrote that she considered the opinions of Dr. Bohnsack in
accordance with those regulations and decided to give them “little weight” because they were
inconsistent with other medical evidence, which the ALJ discussed.
The plaintiff complains that this level of articulation is insufficient. However, the ALJ
weighed the evidence, rejecting findings that were consistent with the plaintiff’s complaints in
favor of other evidence that contradicted them, explaining her choices. To upset those choices, as
the plaintiff urges here, would be to reweigh the evidence, which the Court may not do in its limited
judicial review function. 42 U.S.C. § 405(g); Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984)
(holding that the Court “may not try the case de novo, nor resolve conflicts in evidence, nor decide
questions of credibility”).
Contrary to the plaintiff’s assertion, the ALJ did discuss (and therefore must have
considered) the objective evidence from the University of Michigan Medical Center and Dr.
Marder. Considering both favorable and unfavorable medical evidence is the proper role of the
ALJ, with which courts cannot interfere if her ultimate conclusion is supported by substantial
evidence — a low bar, consisting of “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Biestek v. Berryhill, --- U.S. ---, 139 S. Ct. 1148, 1154 (2019)
(quoting Consolidated Edison, 305 U.S. 197, 229 (1938)); Richardson v. Perales, 402 U.S. 389,
The magistrate judge in turn discussed the ALJ’s evidence weighing, pointing out the
favorable and unfavorable evidence she considered. The plaintiff criticizes that approach as
merely adopting and repeating the ALJ’s errors and, like the ALJ, cherry picking the evidence.
But that is not what the record shows. There is “little indication that the ALJ improperly cherry
picked evidence; the same process can be described more neutrally as weighing the evidence.”
White v. Comm’r of Soc. Sec., 572 F.3d 272, 284 (6th Cir. 2009). The magistrate judge concluded
that the ALJ gave fair consideration to all the evidence, and the Court agrees. “[A]n ALJ is not
required to discuss all the evidence submitted, and an ALJ’s failure to cite specific evidence does
not indicate that it was not considered.” Simons v. Barnhart, 114 F. App’x 727, 733 (6th Cir.
2004) (quoting Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000)).
Nor did the ALJ violate the articulation standards of the current regulations merely because
her determination of the RFC did not include the limitations recommended by Dr. Tejero that were
partially consistent with other medical source opinions. An ALJ is “not required to articulate how
[she] considered each medical opinion . . . from one medical source individually.” 20 C.F.R. §
404.1520c(b)(1). Here, the ALJ acknowledged the opinion and indicated how persuasive she
found it, giving it only “some weight.” That was sufficient. See Callahan v. Comm’r of Soc. Sec.,
No. 17-14069, 2019 WL 1375516, at *2 (E.D. Mich. Mar. 27, 2019) (rejecting “the principle” that
“an ALJ must explain why she did not include a doctor’s opinions when formulating her RFC,”
even where the ALJ “gave great weight to the physician’s opinion”).
Here, the ALJ described the evidence and articulated the bases of her decision in sufficient
detail to allow the Court to discharge its limited review function of determining whether the
decision is “supported by substantial evidence.” 42 U.S.C. § 405(g).
After a de novo review of the entire record and the materials submitted by the parties, the
Court concludes that the magistrate judge properly reviewed the administrative record and applied
the correct law in reaching her conclusion. The Court has considered plaintiff Bundy’s objection
to the report and recommendation and finds it to lack merit.
Accordingly, it is ORDERED that the magistrate judge’s report and recommendation
(ECF No. 17) is ADOPTED.
It is further ORDERED that the plaintiff’s objection (ECF No. 18) is OVERRULED.
It is further ORDERED that the plaintiff’s motion for summary judgment (ECF No. 13) is
It is further ORDERED that the defendant’s motion for summary judgment (ECF No. 15)
is GRANTED. The findings of the Commissioner are AFFIRMED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: March 31, 2021
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