Cooper v. Social Security, Commissioner of

Filing 13

ORDER ADOPTING 11 Report and Recommendation. Signed by District Judge Terrence G. Berg. (Chubb, A)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TERESA LEE COOPER,
Plaintiff,

v.

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

Case No. 13-11883
HON. TERRENCE G. BERG
HON. PATRICIA T. MORRIS
/

ORDER ADOPTING REPORT AND RECOMMENDATION
This matter is before the Court on Magistrate Judge Patricia T. Morris’s Report
and Recommendation of June 17, 2014 (Dkt. 11), recommending that Defendant’s
motion for summary judgment (Dkt. 9) be granted and that Plaintiff’s motion for
summary judgment (Dkt. 8) be denied.
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)(C). Plaintiff filed timely objections (Dkt. 12)
to the Report and Recommendation; Defendant did not file any objections or a
response to Plaintiff’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)(C). “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 Morris’s Report and
Recommendation, and Plaintiff’s objections. For the reasons set forth below, the
objections are OVERRULED and the Report and Recommendation is ACCEPTED
and ADOPTED as the opinion of the Court. Therefore, Defendant’s motion for
summary judgment (Dkt. 9) is GRANTED and Plaintiff’s motion for summary
judgment (Dkt. 8) is DENIED.
I.
A.

ANALYSIS

The Social Security Act.
The Social Security 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)).
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
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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).
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
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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 by 42 U.S.C. §
405(g). If the Appeals Council denies review, the Administrative Law Judge’s
(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 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.

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B.

The ALJ’s Decision Was Supported By Substantial Evidence.
Plaintiff apparently objects to Magistrate Judge Morris’s finding that the ALJ’s

decision was supported by substantial evidence, but does not provide any express,
specific objections.1 (Obj. at 1–10.) The Court will review the “objections” in the
order they are made.
1. Objection 1.
First, Plaintiff notes that Magistrate Judge Morris found that this case “presents
a close question” and that the “Magistrate” committed a number of errors.2 (Obj. at
1.) Merely to point out that the Magistrate Judge appropriately commented on the
closeness of the question and recognized that the ALJ’s decision contained some
errors accurately describes the Magistrate Judge’s Report and Recommendation,
but it does not state an objection.
2. Objection 2.
Second, Plaintiff catalogues a number of deficiencies that Magistrate Judge
Morris identified in the ALJ’s reasoning and analysis. (Obj. at 2.) Again, Plaintiff
accurately summarizes the weaknesses the Report and Recommendation noted in
Unfortunately, Plaintiff failed to follow the direction provided at the end of the Report and
Recommendation requiring that objections be labeled as “Objection No. 1,” “Objection No. 2,” and so
on, and that each objection “must recite precisely the provision of [the] Report and Recommendation
to which it pertains.” (Dkt. 11 at 50.) Plaintiff’s objections are rather framed as a stream-ofconsciousness list of things in the Report and Recommendation she disagrees with, or finds “odd” or
hard to understand. This format, that Magistrate Judge Morris wisely directed Plaintiff to avoid,
makes it much more difficult to discern exactly what Plaintiff’s objections are. To impose some kind
of order and seek more clarity, I have separated Plaintiff’s list into separate topic areas and
numbered them as distinct “objections.”
1

It seems likely that Plaintiff meant to say that Magistrate Judge Morris found that the ALJ
committed a number of errors, which is something Judge Morris did find (Obj. at 2)—she did not find
that she herself committed a number of errors.
2

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the ALJ’s reasoning, but Plaintiff applies an incorrect standard in assessing those
errors, contending that if any one of the ALJ’s errors recognized by Magistrate
Judge Morris were corrected, that “could sway any reasonable person to a different
conclusion than [the one reached by] the ALJ.” (Obj. at 2.) This is not an effective
objection because the standard of review here is not whether any reasonable person
could be swayed to a different conclusion, but rather whether the ALJ’s decision is
supported by substantial evidence. See Bass, 499 F.3d at 509.
3. Objection 3.
Third, Plaintiff notes that Judge Morris “deftly covered” how there are different
rules that apply to disability claims involving Fibromyalgia. (Obj. at 2–3.) Plaintiff
continues by noting that Judge Morris “admits that the ALJ committed an error ‘in
evaluating the medical opinions on certain factors to question the severity of
Plaintiff’s Fibromyalgia’” and that the ALJ was “undu[ly] preoccupy[ied]” with the
“scarcity of supporting objective evidence.” (Obj. at 3.) Plaintiff then discusses Sixth
Circuit cases that address this issue, including Rogers, Preston, and Runyon. (Obj.
at 3–4.) Plaintiff’s objection then appears to be that Magistrate Judge Morris erred
when she affirmed the ALJ’s decision despite the ALJ’s “undue preoccupation” with
the “scarcity of supporting objective evidence.”
The objection is overruled. Having conducted a de novo review, this Court
concludes that Judge Morris provided a thorough and accurate discussion of the
applicable law, including the cases cited by Plaintiff, and accurately concluded that
despite the ALJ’s errors, the conclusion was nevertheless supported by substantial
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evidence. (Dkt. 11 at 27–37, 38–39.) The ALJ recognized Plaintiff’s Fibromyalgia as
a severe impairment and substantially limited Plaintiff’s residual functional
capacity because of it. (Tr. 17 – 18; Dkt. 11 at 39.)
4. Objection Four.
Fourth, Plaintiff notes that Judge Morris “opined” that “‘the ALJ’s analysis also
relied too heavily on Plaintiff’s conservative treatment’ and ‘the ALJ’s analysis was
also slightly off-the-mark in finding that Plaintiff’s daily activities discredited her
complaints of pain.’” (Obj. at 4.) This is an accurate summary but it does not state
an objection to the Report and Recommendation. Plaintiff continues by arguing that
“the special rules for Fibromyalgia cases seem to suggest that these errors also
diminish the ALJ’s credibility and support for the decision.” (Id.) That is not an
objection either. Plaintiff then notes some case law (Obj. at 4–5) and points out that
Judge Morris “opined . . . that the ALJ’s analysis relied too heavily on Plaintiff’s
conservative treatment and also discredited Plaintiff’s complaints of pain due to her
ability to perform intermittent activities of daily living.” (Obj. at 5.) She then notes
that Judge Morris “also [found] that the ALJ ‘cast doubt on opinions from
physicians who arguably deserve treating-source deference.’” (Id.) These statements
about the Report and Recommendation do not clearly articulate an objection to the
Magistrate Judge’s analysis or conclusion.
It is quite clear from the Report and Recommendation that Magistrate Judge
Morris found that the ALJ committed a number of errors, but the mere fact that the
Magistrate Judge recognized that the ALJ may have made mistakes does not
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require or even permit remand or reversal. See Rabbers v. Comm’r Soc. Sec. Admin.,
582 F.3d 647, 654 (6th Cir. 2009). Thus, simply pointing out the Magistrate Judge’s
qualms with the ALJ’s decision is not a specific objection that the Magistrate Judge
erred. Here, Judge Morris recognized, carefully noted, and fully addressed each of
these issues and nevertheless found the ALJ’s conclusions supportable (Dkt. 11 at
37–50). This Court agrees.
5. Objection 5.
Fifth, Plaintiff notes that the Magistrate Judge “opined” that “‘the ALJ gave
‘good reasons’ for the weight he gave treating sources.’” (Obj. at 6.) This is not, by
itself, an objection to the Report and Recommendation. Plaintiff continues by noting
her disagreement with Judge Morris’s analysis of the “progression of the diagnosis”
by Plaintiff’s “treating sources.” (Obj. at 6.) Judge Morris found the progression of
the diagnoses to be questionably quick—i.e., that Doctors Metro and Craig moved
rapidly from finding a temporary disability to a permanent one. Plaintiff presents
an explanation for why these progression of diagnoses are not problematic (Id.) The
Court will treat this disagreement as an objection.
The objection is overruled. Having conducted a de novo review, this Court
concludes that Judge Morris provided a thorough and accurate discussion of the
reasons Doctors Metro’s and Craig’s opinions were not given controlling weight, and
accurately concluded that the ALJ’s conclusion is supported by substantial
evidence. (Dkt. 11 at 41–44; Tr. 19–21.) The ALJ offered multiple valid reasons for
why the opinions of Doctors Metro and Craig were given less than controlling
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weight. (Tr. 17 – 18; Dkt. 11 at 39.) Thus, regardless of whether Plaintiff’s
alternative explanation for the rapid progression of diagnoses is rational,3 the ALJ’s
decision was still supported by substantial evidence.
6. Objection 6.
Plaintiff next argues that “the Magistrate [Judge] inexplicably states that ‘the
rest of the sources, in contrast, support the ALJ’s findings.’” (Obj. at 7.) Plaintiff
continues by arguing that Judge Morris incorrectly interprets a letter from Doctor
Turner. Plaintiff notes that Judge Morris “states that Dr. Turner’s letter suggests
that Plaintiff is disabled, but expressed optimism about treatments and her ability
to return to work.” (Id.) Plaintiff then argues that Doctor Turner’s letter could not
reasonably be interpreted to suggest anything other than that Plaintiff is disabled,
contrary to Judge Morris’s assertion that the records from Doctor Turner support
the ALJ’s findings. The Court will treat this as an objection.
The objection is overruled. Having conducted a de novo review, this Court
concludes that Judge Morris provided a thorough and accurate discussion of the
reasons Doctor Turner’s opinions supported the ALJ’s conclusion. (Dkt. 11 at 43; Tr.
20, 285.) The ALJ’s and Magistrate Judge’s reading of Doctor Turner’s report4 was

Plaintiff’s alternative reading is not supported by citation to evidence in the record, legal authority,
or anything else.
3

Doctor Turner wrote, in part, that Plaintiff “[s]ubjectively . . . has severe disabling pain including
headaches, muscle pain[,] and numbness. We are currently in the process of titrating her
medications for affect. From a disability standpoint she states that she is unable to perform her work
because of the pain complaints. I explained to her that there are treatments available for chronic
headaches and fibromyalgia. My goal is to get her back to working full time.” (Tr. 285.) Reading the
statements of disability as a report of Plaintiff’s opinion of her own condition is a reasonable reading.
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reasonable, and Plaintiff’s proposed reading of the report is overly charitable toward
her cause. (Id.) This is supported by substantial evidence.
7. Objection 7.
Plaintiff next points out that the Magistrate Judge “notes that Dr. Reina’s
opinion only found temporary disability.” (Obj. at 8.) This is, of course, not an
objection to the Report and Recommendation. Plaintiff asserts that Doctor Reina’s
opinion supports a finding of permanent disability and thus the Magistrate Judge
erred by finding that Doctor Reina’s opinion supported the ALJ’s decision. The
Court will address this as if it were made as an objection.
The objection is overruled. Having conducted a de novo review, this Court
concludes that the Magistrate Judge’s reading of Doctor Reina’s report was
reasonable, and Plaintiff’s proposed reading of the report is overly charitable toward
her cause.5 (Dkt. 11 at 43; Tr. 29, 258.) This is supported by substantial evidence.
8. Objection 8.
Plaintiff next points out that Judge Morris noted “that Dr. Sidhu and Dr. Doshi
would not support disability based on fibromyalgia because of lack of documented
proof.” (Obj. at 8.) This is not entirely accurate. The Report and Recommendation
states the Dr. Doshi “noted her fibromyalgia diagnosis,” but did not have
documented proof to support a “disability” diagnosis, and referred Plaintiff for a
second opinion. (Dkt. 11 at 11; Tr at 221.) It further states that Dr. Sidhu “could
Doctor Reina’s opinion was “that Ms. Cooper is not able to return to work at this time. If she has
not returned to work in four weeks, I recommend that a re-evaluation be performed to further assess
her medical condition and work status.” (Tr. 258.) Plaintiff’s argument that this is a finding of
permanent disability is not at all persuasive.

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not comment on whether fibromyalgia qualified her for disability.” (Dkt. 11 at 13;
Tr. at 276.) Plaintiff does not address Magistrate Judge Morris’s reasoning, but
rather argues with the position taken by Defendant in the briefing. (Id.) That is also
not an objection. Regardless, neither the Magistrate Judge nor the ALJ were
unreasonable in their interpretation of the opinions of Doctors Sidhu and Doshi.
II.

CONCLUSION

For the reasons set forth above, it is hereby ORDERED that Magistrate Judge
Morris’s Report and Recommendation of June 17, 2014 (Dkt. 11), is ACCEPTED
and ADOPTED.
It is FURTHER ORDERED that Defendant’s motion for summary judgment
(Dkt. 9) is GRANTED and Plaintiff’s motion for summary judgment (Dkt. 8) is
DENIED.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

Dated: September 11, 2014

Certificate of Service
I hereby certify that this Order was electronically submitted on September 11, 2014,
using the CM/ECF system, which will send notification to each party.
By: s/A. Chubb
Case Manager

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