Fowler v. Social Security, Commissioner of

Filing 15

ORDER Adopting Report and Recommendation. Signed by District Judge Terrence G. Berg. (Chubb, A)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LAURA FOWLER,
v.

Plaintiff,

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

Case No. 12-12637
HON. TERRENCE G. BERG
HON. MICHAEL J. HLUCHANIUK
/

ORDER ADOPTING REPORT AND RECOMMENDATION
This matter is before the Court on Magistrate Judge Michael J. Hluchaniuk’s
Report and Recommendation of July 30, 2013 (Dkt. 13), recommending that
Plaintiff’s motion for summary judgment be granted, in part, that Defendant’s
motion for summary judgment be denied, in part, and that this matter be
remanded, under sentence four,1 for further proceedings.
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). Defendant filed timely objections (Dkt. 14)
to the Report and Recommendation; Plaintiff did not file any objections, nor did she

A claimant whose request for social security benefits is denied after an administrative hearing may
appeal this decision to the district court, pursuant to 42 U.S.C. § 405(g). The fourth sentence of §
405(g) gives the district court the power to “enter ... a judgment affirming, modifying, or reversing
the decision of the Commissioner of Social Security, with or without remanding the cause for a
rehearing,” known as a “sentence-four remand.” On a sentence-four remand, the administrative law
judge retains the discretion to grant or deny a benefits award. See Shalala v. Schaefer, 509 U.S. 292,
304 (1993).

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respond to Defendant’s objections. A district 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.
The Court has reviewed Magistrate Judge Hluchaniuk’s Report and
Recommendation, and Defendant’s objections thereto. For the reasons set forth
below, Defendant’s objections are OVERRULED, and the Report and
Recommendation is ACCEPTED and ADOPTED as the opinion of the Court.
Consequently, this matter is REMANDED pursuant to sentence four of to 42 U.S.C.
§ 405(g) for further proceedings, consistent with the discussion below.
ANALYSIS
A. The Social Security Act
The Social Security Act (the Act) “entitles benefits to certain claimants who,
by virtue of a medically determinable physical or mental impairment of at least a
year’s expected duration, cannot engage in ‘substantial gainful activity.’” Combs v.
Comm’r of Soc. Sec., 459 F.3d 640, 642 (6th Cir. 2006) (en banc) (quoting 42 U.S.C. §
423(d)(1)(A)). A claimant qualifies as disabled “if she cannot, in light of her age,
education, and work experience, ‘engage in any other kind of substantial gainful
work which exists in the national economy.’” Combs, 459 F.3d at 642 (quoting 42
U.S.C. § 423(d)(2)(A)).

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Under the authority of the Act, the Social Security Administration (SSA) has
established a five-step sequential evaluation process for determining whether an
individual is disabled. See 20 C.F.R. § 404.1520(a)(4). The five steps are as follows:
In step one, the SSA identifies claimants who “are doing substantial
gainful activity” and concludes that these claimants are not disabled.
[20 C.F.R.] § 404.1520(a)(4)(i). If claimants get past this step, the SSA
at step two considers the “medical severity” of claimants’ impairments,
particularly whether such impairments have lasted or will last for at
least twelve months. Id. § 404.1520(a)(4)(ii). Claimants with
impairments of insufficient duration are not disabled. See id. Those
with impairments that have lasted or will last at least twelve months
proceed to step three.
At step three, the SSA examines the severity of claimants’
impairments but with a view not solely to their duration but also to the
degree of affliction imposed. Id. § 404.1520(a)(4)(iii). Claimants are
conclusively presumed to be disabled if they suffer from an infirmity
that appears on the SSA’s special list of impairments, or that is at
least equal in severity to those listed. Id. § 404.1520(a)(4)(iii), (d). The
list identifies and defines impairments that are of sufficient severity as
to prevent any gainful activity. See Sullivan v. Zebley, 493 U.S. 521,
532 (1990). A person with such an impairment or an equivalent,
consequently, necessarily satisfies the statutory definition of disability.
For such claimants, the process ends at step three. Claimants with
lesser impairments proceed to step four.
In the fourth step, the SSA evaluates claimant’s “residual functional
capacity,” defined as “the most [the claimant] can still do despite [her]
limitations.” 20 C.F.R. § 404.1545(a)(1). Claimants whose residual
functional capacity permits them to perform their “past relevant work”
are not disabled. Id. § 404.1520(a)(4)(iv), (f). “Past relevant work” is
defined as work claimants have done within the past fifteen years that
is “substantial gainful activity” and that lasted long enough for the
claimant to learn to do it. Id. § 404.1560(b)(1). Claimants who can still
do their past relevant work are not disabled. Those who cannot do
their past relevant work proceed to the fifth step, in which the SSA
determines whether claimants, in light of their residual functional
capacity, age, education, and work experience, can perform
“substantial gainful activity” other than their past relevant work. See
id. § 404.1520(a)(4)(v), (g)(1). Claimants who can perform such work
are not disabled. See id.; § 404.1560(c)(1).
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Combs, 459 F.3d at 642–43.
“Through step four, the claimant bears the burden of proving the existence
and severity of limitations caused by her impairments and the fact that she is
precluded from performing her past relevant work.” Jones v. Comm’r of Soc. Sec.,
336 F.3d 469, 474 (6th Cir. 2003). If the analysis reaches the fifth step, the burden
transfers to the Commissioner. See Combs, 459 F.3d at 643. At that point, the
Commissioner is required to show that “other jobs in significant numbers exist in
the national economy that [claimant] could perform given her RFC and considering
relevant vocational factors.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th
Cir. 2007); 20 C.F.R. §§ 416.920(a)(4)(v) and (g).
Judicial review of the Commissioner’s final decision is authorized pursuant to
42 U.S.C. § 405(g). Where, as here, the Appeals Council denies review, the ALJ’s
decision stands as the Commissioner’s final decision. See 20 C.F.R. § 404.981.
Judicial review, however, is circumscribed in that 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.” Longworth v. Comm’r of Soc. Sec., 402 F.3d
591, 595 (6th Cir. 2005). Substantial evidence is “such relevant evidence as a
reasonable mind might accept to support the ALJ’s conclusion.” Bass v. McMahon,
499 F.3d 506, 509 (6th Cir. 2007) (quotation marks omitted) (quoting Foster v.
Halter, 279 F.3d 348, 353 (6th Cir. 2001)). This substantial evidence standard is
less exacting than the preponderance of evidence standard. See Bass, 499 F.3d at

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509 (citing Bell v. Comm’r of Soc. Sec., 105 F.3d 244, 246 (6th Cir. 1996)). For
example, if the ALJ’s decision is supported by substantial evidence, “then reversal
would not be warranted even if substantial evidence would support the opposite
conclusion.” Bass, 499 F.3d at 509.
B. The ALJ Must Obtain An Expert Opinion On Whether
Plaintiff’s Impairments Equaled A Listed Impairment
This case involves claims for Social Security Disability and Supplemental
Security Income benefits. The initial disability determination was made using the
single decision-maker (SDM) model for adjudicating claims.2 The question before
the Court—and the issue upon which Magistrate Judge Hluchaniuk recommended
remand—is whether an Administrative Law Judge must consult with a medical
expert before making medical equivalency3 determinations at step three of the five-

Error! Main Document Only.The SDM model is an experimental modification of the disability
determination process. See Leverette v. Comm’r of Soc. Sec., 2011 WL 4062380 (E.D. Mich. Aug. 17,
2011), adopted by 2011 WL 4062047 (E.D. Mich. Sept. 13, 2011). This experiment eliminates the
reconsideration level of review and allows claims to go straight from initial denial to ALJ hearing.
Id. Most significantly, it allows the state agency employee (the “single decision-maker”) to render
the initial denial of benefits without documenting medical opinions from the state agency medical
consultants. Id. (citing 20 C.F.R.§§ 404.906(b)(2), 416.1406(b)(2)).
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At the third step in the disability evaluation process, a claimant will be found disabled if his
impairment meets or equals one of the listings in the Listing of Impairments. See 20 C.F.R. §§
404.1520(a)(4)(iii), 416.920(a)(4)(iii); Turner v. Comm’r of Soc. Sec., 381 F. App’x 488, 491 (6th Cir.
2010). Each listing specifies “the objective medical and other findings needed to satisfy the criteria
of that listing.” Id. § 404.1525(c)(3). A claimant must satisfy all of the criteria to “meet” the listing.
Id. However, a claimant is also disabled if his or her impairment is the medical equivalent of a
listing, 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); Turner, 381 F. App’x at 488, which means it
is “at least equal in severity and duration to the criteria of any listed impairment.” 20 C.F.R. §
416.926(a); 20 C.F.R. § 404.1526(a). An ALJ must compare the medical evidence with the
requirements for listed impairments in considering whether the condition is “equivalent” in severity
to the medical findings for any Listed Impairment.
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step analysis.4 Magistrate Judge Hluchaniuk raised this issue sua sponte (see Dkt.
13 at n. 4).5
The ALJ here expressly relied on the opinions of the SDMs6 in reaching her
finding that “no listing was met or equaled . . . .” (Tr. 336). More importantly, the
ALJ improperly referred to the SDMs as medical sources, stating that “the
Disability Determination Service medical examiners disposed of this case after
assessing the claimant’s residual functional capacity, which meant no listing was
met or equaled, in their opinion” (Id.). Plaintiff underwent two different
consultative physical examinations–first on September 9, 2006 by Dr. Richard C.
Gause, M.D. (Tr. 260-263), and second on July 10, 2010 by Dr. R.
Scott Lazzara, M.D. (Tr. 732-736); however, neither physician completed or
reviewed and signed a “Disability Determination Transmittal” form or a “Physical
Residual Functional Capacity Assessment” for Plaintiff. Rather, only the SDMs
completed and signed those forms.

Neither party objected to Magistrate Judge Hluchaniuk’s recitation of the factual record or to his
finding that Plaintiff’s arguments for remand lacked merit. Thus, Plaintiff and Defendant have
waived any further right to appeal these findings. See Thomas v. Arn, 474 U.S. 140, 155 (1985).
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Admittedly, Plaintiff did not raise this specific challenge to the ALJ’s decision in her motion for
summary judgment, and generally arguments not raised are abandoned. However, the Sixth Circuit
has previously considered the issue of whether certain impairments meet or equal a listing, even
though that issue had not been specifically objected to. See Gwin v. Comm’r of Soc. Sec., 109 F.
App’x 102 (6th Cir. 2004); see also Buhl v. Comm’r of Soc. Sec., 2013 WL 878772, at *7 n.5 (E.D.
Mich. Feb. 13, 2013) (plaintiff’s failure to raise argument did not prevent the Court from identifying
error based on its own review of the record and ruling accordingly), adopted by 2013 WL 878918
(E.D. Mich. Mar. 8, 2013). The Court finds no error in Magistrate Judge Hluchaniuk’s raising this
issue sua sponte.
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Two “single decision-makers” evaluated Plaintiff over the course of the administrative proceedings
– Kevin Falk in September 2006 and Lynn Aurilio in August 2010 (Tr. 44, 264-271, 457-467). Thus,
this opinion will refer to them in the plural, as SDMs.
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Defendant cites Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647 (6th Cir. 2009),
and urges the Court to overrule Magistrate Judge Hluchaniuk’s recommendation.
Defendant maintains that the ALJ’s reliance on the SDMs at Step III was
“harmless error” (Dkt. 14 at 7-9), especially since Magistrate Judge Hluchaniuk was
himself “not necessarily convinced that [P]laintiff can show that her physical
impairments satisfy the equivalency requirements” (Dkt. 13 at 22–23).
In Rabbers, the ALJ failed to apply a regulation-mandated “special
technique” for evaluating mental impairments at Step Three. See Rabbers, 582
F.3d at 654. In particular, the applicable regulations required the ALJ, among
other things, to “‘record the presence or absence of the criteria [of the listing] and
the rating of the degree of functional limitation.’” Id. at 654 (quoting 20 C.F.R. §
404.1520a(d)(2)). Yet the ALJ “neglect[ed] to make specific B criteria7 findings as
required under § 404.1520a(e)(2).” Id. at 654. In holding that the ALJ’s error could
be overlooked as harmless, the Sixth Circuit explained,
Generally, . . . we review decisions of administrative agencies for
harmless error. . .. Accordingly, if an agency has failed to adhere to its
own procedures, we 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.
Id. at 654. Regarding the particular procedural error before it, the Sixth Circuit
reasoned that it was distinct from a violation of the explanatory requirement of the
Error! Main Document Only.“If a claimant has a medically determinable mental impairment,
the ALJ ‘must then rate the degree of functional limitation resulting from the impairment(s)’ with
respect to ‘four broad functional areas’: ‘[a]ctivities of daily living; social functioning; concentration,
persistence, or pace; and episodes of decompensation.’ Id. §§ 404.1520a(b)(2), (c)(3). These four
functional areas are commonly known as the ‘B criteria.’” Rabbers v. Comm'r Soc. Sec., 582 F.3d
647, 653 (6th Cir. 2009), quoting 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00 et seq.
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treating physician rule for which courts apply a “circumscribed” harmless error
review:
If an ALJ rejects a treating physician’s opinion but gives no reasons for
doing so, it is difficult for a reviewing court to conduct its own analysis
and make a judgment as to what the ALJ’s reasons would have been—
unless . . . the treating physician’s opinion is “so patently deficient that
the Commissioner could not possibly credit it.” Faced with an ALJ’s
failure to address the B criteria, however, a reviewing court need only
ask whether the record indicates that the claimant’s mental
impairment would have ultimately satisfied the B criteria. This kind of
evidence—evidence regarding the claimant's activities of daily living,
social functioning, concentration, persistence, or pace, and episodes of
decompensation—is objective, concrete, factual and medical evidence
that will be apparent in the record, at least in some cases.
Id. at 656–57 (internal citation omitted).
Unlike Rabbers, in this case, the ALJ expressly relied on the opinions of the
SDMs at Step III. Rabbers is distinguishable since it involved the Paragraph B
criteria, and the Sixth Circuit noted that—even though the ALJ failed to properly
apply those criteria—they were simply an “adjudicatory tool” as opposed to a
regulation. Moreover, in Rabbers, there was evidence in the record from which a
valid Step III determination could be made, thus any error was harmless. Here,
there is no medical opinion in the record concerning equivalency at Step Three.
The Court thus agrees with Magistrate Judge Hluchaniuk that “the lack of
an expert medical opinion on the issue of equivalency is problematic and violated
the requirements of SSR 96-6p”8 (Dkt. 13 at 23). See also, Harris v. Comm’r of Soc.
Sec., 2013 WL 1192301, at *8 (E.D. Mich. Mar. 22, 2013) (Ludington, J.) (a medical
Error! Main Document Only.SSR 96–6p provides that “longstanding policy requires that the
judgment of a physician ... designated by the Commissioner on the issue of equivalence on the
evidence before the administrative law judge ... must be received into the record as expert opinion
evidence and given appropriate weight.” SSR 96–6p, 1996 WL 374180, at *3 (July 2, 1996).
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opinion on the issue of equivalence is required, regardless of whether the SDM
model is implicated); Maynard v. Comm’r of Soc. Sec., 2012 WL 5471150 (E.D. Mich.
Nov. 9, 2012) (“[O]nce a hearing is requested, SSR 96-6p is applicable, and requires
a medical opinion on the issue of equivalence”) (Cohn, J.); Munson v. Comm’r of Soc.
Sec., 2012 WL 1788584 (E.D. Mich. Apr. 26, 2013) (adopting unpublished report and
recommendation by M.J. Michelson) (Duggan, J.); Bergschwenger v. Comm’r of Soc.
Sec., 2012 WL 4009916 (E.D. Mich. Aug. 20, 2012) (Hluchaniuk, M.J.) (same), report
and recommendation adopted, 2012 WL 4009909 (E.D. Mich. Sept. 12, 2012) (Cox,
J.).9 The Sixth Circuit has not directly addressed the question, but has stated that
“[g]enerally, the opinion of a medical expert is required before a determination of
medical equivalence is made.” Retka v. Comm’r of Soc. Sec., 70 F.3d 1272 (6th Cir.
1995).
In sum, although Defendant is correct that the SDM model was implemented
in Michigan as a way to streamline cases, Defendant is incorrect that SSR 96–6p
was abrogated by the SDM model. The SDM model allows “a single decision-maker
[to] make the initial determination [of disability] with assistance from medical
consultants, where appropriate. . .” 20 C.F.R. § 404.906. The initial determination
comes before a claimant requests a hearing with an ALJ. But once a hearing is
requested, SSR 96–6p is applicable, and requires a medical opinion on the issue of
The Court is aware of authority in this district to the contrary, most notably Gallagher v. Comm'r
of Soc. Sec., 2011 WL 3841632 (E.D. Mich. March 29, 2011) and Timm v. Comm'r of Soc. Sec., 2011
WL 846059 (E.D. Mich. Feb. 14, 2011). These cases held that an ALJ was not required to obtain
medical evidence on the issue of equivalency in cases using the SDM model. The Court does not find
these cases persuasive. See Maynard v. Astrue, 2012 WL 5471150 (E.D. Mich. Nov. 9, 2012); Covey v.
Comm'r of Soc. Sec., 2013 WL 462066 (E.D. Mich. Jan. 16, 2013) report and recommendation
adopted, 2013 WL 461535 (E.D. Mich. Feb. 7, 2013) (disagreeing with Gallagher and Timm).
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equivalence. The Commissioner’s attempt to expand the application of the SDM
model beyond the initial determination of disability and through proceedings before
the ALJ is unpersuasive.
CONCLUSION
For the reasons set forth above,
It is hereby ORDERED that Magistrate Judge Hluchaniuk’s Report and
Recommendation of July 30, 2013 (Dkt. 13) is ACCEPTED and ADOPTED.
It is FURTHER ORDERED that Plaintiff’s motion for summary judgment
(Dkt. 8) is GRANTED IN PART and Defendant’s motion for summary judgment
(Dkt. 9) is DENIED IN PART.
It is FURTHER ORDERED that this matter be REMANDED for further
proceedings consistent with this opinion.

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

Dated: September 25, 2013

Certificate of Service
I hereby certify that this Order was electronically submitted on September
25, 2013, using the CM/ECF system, which will send notification to each party.
By: s/A. Chubb
Case Manager

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