Dixon v. Social Security
Filing
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OPINION AND ORDER OVERRULING 18 Plaintiff's Objections, ADOPTING 17 Report and Recommendation, DENYING 13 Motion for Summary Judgment filed by Dale C Dixon and GRANTING 16 Motion for Summary Judgment filed by Social Security Signed by District Judge Robert H. Cleland. (LWag)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
_____________________________________________________________________
DALE C. DIXON,
Plaintiff,
v.
Case No. 18-11950
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_______________________________________/
OPINION AND ORDER OVERRULING PLAINTIFF’S OBJECTIONS,
ADOPTING REPORT AND RECOMMENDATION, AND GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Plaintiff appeals the denial of Social Security disability benefits. This case was
referred to Magistrate Judge Elizabeth A. Stafford for a report and recommendation.
(ECF No. 3.) Both Plaintiff and Defendant filed motions for summary judgment. (ECF
Nos. 13, 16.) The Magistrate Judge considered these motions and issued a Report and
Recommendation (“R&R”) that recommends denying Plaintiff’s motion and granting
Defendant’s motion, which would affirm the finding made by the administrative law
judge (“ALJ”) that Plaintiff is not disabled. (EFC No. 17.) Plaintiff timely filed two
objections to the R&R, and Defendant filed responses. (ECF No. 18, 19.) After
reviewing the R&R and the parties’ filings, the court concludes that a hearing is
unnecessary. See E.D. Mich. LR 7.1(f)(2). For the following reasons, and the reasons
explained in the R&R, the court will overrule Plaintiff’s objections, grant Defendant’s
motion for summary judgment, and adopt the R&R in its entirety and without alteration.
I. STANDARD
The filing of timely objections to an R&R 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. Winters, 782 F.3d 289, 295 n.1 (6th Cir. 2015);
United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This de novo review requires the
court to re-examine all the relevant evidence previously reviewed by the magistrate
judge to determine whether the recommendation should be accepted, rejected, or
modified in whole or in part. 28 U.S.C. § 636(b)(1).
II. DISCUSSION
Plaintiff raises two objections to the R&R. First, Plaintiff challenges the
Magistrate Judge’s interpretation of Drummond v. Commissioner, 126 F.3d 837 (6th Cir.
1997), which addresses the issue of res judicata in the context of multiple Social
Security filings. Second, Plaintiff challenges the Magistrate Judge’s treatment of the
opinions of Plaintiff’s treating medical provider, Dr. Levi. The court will address each
objection in turn.
A. Application of Res Judicata
Plaintiff originally filed for disability benefits in 2012, alleging April 1, 2011, as an
onset date of disability. (ECF No. 9-3, PageID 119.) In that case, the ALJ determined
that Plaintiff was not disabled and had the residual functional capacity (“RFC”) to
perform sedentary work. (Id. at PageID.122–31.) Plaintiff then filed a second application
for benefits in 2016, alleging June 20, 2016, as the onset date of disability. (ECF No. 9-
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2, PageID 46.) In that case, the ALJ determined that she was not disabled and had the
RFC to perform light work. (ECF No. 9-2, PageID 51.) This appeal followed.
In her first objection, Plaintiff argues that the Magistrate Judge erred in finding
that the ALJ who reviewed Plaintiff’s 2016 application was not bound by the RFC
determination made by the ALJ who reviewed Plaintiff’s 2012 application. This
argument fails because it is based on an outdated interpretation of Drummond v.
Comm’r of Soc. Sec., 126 F.3d 837 (6th Cir. 1997).
The Sixth Circuit held in Drummond that “[w]hen the Commissioner has made a
final decision concerning a claimant’s entitlement to benefits, the Commissioner is
bound by this determination absent changed circumstances.” Drummond, 126 F.3d at
842. Following this decision, the Social Security Administration issued an Acquiescence
Ruling on Drummond:
When adjudicating a subsequent disability claim with an adjudicated
period arising under the same title of the Act as the prior claim,
adjudicators must adopt such a finding from the final decision by an ALJ or
the Appeals Council on the prior claim . . . unless there is new and
material evidence relating to such a finding or there had been a change in
the law, regulations or ruling affecting the finding or the method for arriving
at the finding.
S.S.R. 98-4(6), 1998 WL 283902 (June 1, 1998).
In Early v. Comm’r of Soc. Sec., 893 F.3d 929 (6th Cir. 2018), the Sixth Circuit
further clarified that “if an individual . . . files a second application for the same period of
time finally rejected by the first application and offers no cognizable explanation for
revisiting the first decision, res judicata would bar the second application.” Early, 893
F.3d at 933. However, the court emphasized that claims filed during different time
periods are not the “same claim” for purposes of being barred by res judicata. Id.
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(quoting Groves v. Apfel, 148 F.3d 809, 810 (7th Cir. 1998) (“[A] claim that one became
disabled in 1990 is not the same as a claim that one became disabled in 1994.”).
Res judicata does not apply in this case. Here, Plaintiff’s 2016 application for
benefits relates to a different onset date of disability than her 2012 application.
Additionally, Plaintiff’s 2016 application contains new evidence, including the normal
results of a May 2016 myocardial perfusion imaging with a stress test, an independent
medical examination conducted by Dr. Bina Shaw, and descriptions of Plaintiff’s ability
to care for her infant grandson and other grandchildren. (ECF No. 17, PageID 1016–17;
ECF No. 9-2, PageID 53.) Because Plaintiff’s 2016 application pertains to a new time
period of disability and contains new evidence, the ALJ was not bound by the RFC
assessment reached by the ALJ who reviewed Plaintiff’s 2012 application. The court will
overrule Plaintiff’s first objection.
B. Treatment of Medical Evidence
Plaintiff’s second objection to the R&R challenges the Magistrate Judge’s
proposed finding that the ALJ properly discounted the opinions of Plaintiff’s treating
medical provider, Dr. Levi. (ECF No. 18, PageID 1027.) In analyzing the opinions of a
treating source,
An ALJ is required to give controlling weight to a treating physician’s
opinion so long as that opinion is supported by clinical and laboratory
diagnostic evidence not inconsistent with other substantial evidence in the
record. But if the ALJ concludes that a treating source’s medical opinion is
not entitled to controlling weight, she must weigh the opinion in light of
several factors. The ALJ need not perform an exhaustive, step-by-step
analysis of each factor; she need only provide “good reasons” for both her
decision not to afford the physician’s opinion controlling weight and for her
ultimate weighing of the opinion.
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Biestek v. Comm’r of Soc. Sec., 880 F.3d 778, 785 (6th Cir. 2017) (internal citation
omitted).
Here, Plaintiff argues that the ALJ should have given controlling weight to Dr.
Levi’s medical opinions. (ECF No. 18, PageID 1028.) The Magistrate Judge found that
the ALJ gave good reasons for departing from the opinions of Plaintiff’s treating
physician. (ECF No. 17, PageID 1020.) Specifically, the ALJ explained that “Dr. Levi’s
opinion greatly overstates the claimant’s limitations, given her full strength and steady
gait during examinations, as well as her normal perfusion testing and her care for her
grandson throughout the relevant period.” (ECF No. 17, PageID 1017–19.) The
Magistrate Judge determined that this explanation, coupled with normal assessments
by Doctors Zeig and Gezahegne, were sufficient to give Dr. Levi’s opinion little weight.
(Id., PageID 1020.)
The court agrees with the Magistrate Judge’s proposed finding that the factors
cited by the ALJ were good reasons to afford little weight to Dr. Levi’s opinions. Thus,
even if additional evidence in the record could support a finding of disability, the court
will not reweigh the evidence considered by the ALJ. See Big Branch Res., Inc. v. Ogle,
737 F.3d 1063, 1074 (6th Cir. 2013) (internal quotations and citations omitted) (“Here,
the [plaintiff] asks us to reweigh the evidence and substitute our judgment for that of the
ALJ. We cannot do so. Even if we would have taken a different view of the evidence
were we the trier of facts, we must affirm the ALJ’s reasonable interpretation.”).
Plaintiff also argues that the ALJ erred in relying on her provision of constant
care to her young grandson in determining that she is not disabled. (ECF. 18, PageID
1027.) This argument misconstrues the ALJ’s opinion, which must be read as a whole.
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See Vitale v. Comm’r of Soc. Sec., No. 16-12654, 2017 WL 4296608, at *2 (E.D. Mich.
Sept. 28, 2017) (internal citations omitted) (“The ALJ’s assessment of Dr. Petrilli’s
opinion, read together with the ALJ’s decision as a whole, is sufficiently specific to
indicate the ALJ’s good reasons for determining that Dr. Petrill’s opinion was
inconsistent with the other substantial evidence in the case record.”). Plaintiff’s ability to
care for her grandson is just one of the many factors that assisted the ALJ in evaluating
Plaintiff’s capacity for work. This factor was assessed along with the medical evidence
of Plaintiff’s treating physician and Dr. Shaw and recent medical reports regarding
Plaintiff’s normal myocardial perfusion testing, normal stress test, and sleep apnea
diagnosis. (ECF No. 17, PageID 1019–20.)
It is appropriate for the ALJ to consider Plaintiff’s ability to care for her grandson
when determining her capacity to work. Walters v. Comm’r of Soc. Sec., 127 F.3d 525,
532 (6th Cir. 1997) (“An ALJ may also consider household and social activities engaged
in by the claimant in evaluating the claimant’s assertion of pain or ailments.”) (citation
omitted); see also McGrath v. Comm’r of Soc. Sec., 2013 U.S. Dist. LEXIS 121063, at
*30–31 (E.D. Mich. Apr. 9, 2013) (“The ALJ concluded that ‘[w]hile this evidence does
not automatically mean the [plaintiff] is capable of performing such tasks for a full
workweek, it generally indicated that the [plaintiff] is capable of performing similar tasks
in the workplace.’”) (citation omitted), R.&R. adopted, No. 12-CV-11267, 2013 WL
4507948 (E.D. Mich. Aug. 23, 2013) (Goldsmith, J.). Plaintiff’s ability to care for her
grandchildren is one piece of evidence the ALJ relied on in discounting the opinions of
Dr. Levi. The court finds no error in the Magistrate Judge’s treatment of Dr. Levi’s
medical opinions.
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III. CONCLUSION
For the reasons stated above, the court overrules Plaintiff’s objections, grants
Defendant’s motion for summary judgment and adopts Magistrate Judge Stafford’s R&R
in full and without amendment. Accordingly,
IT IS ORDERED that Plaintiff’s objections (ECF No. 18) are OVERRULED and
that the Report and Recommendation (ECF No. 17) is ADOPTED IN FULL AND
INCORPORATED BY REFERENCE.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment
(ECF No. 16.) is GRANTED and Plaintiff’s Motion for Summary Judgment (ECF No. 13)
is DENIED.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: August 13, 2019
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, August 13, 2019, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
(810) 292-6522
S:\Cleland\Cleland\HEK\Civil\18-11950.DIXON.adopt.ss.rr.HEK.docx
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