Hashemi v. Social Security, Commissioner of

Filing 31

OPINION and ORDER Adopting Magistrate Judge's 25 Report and Recommendation, Granting Defendant's 24 Motion for Summary Judgment, and Denying Plaintiff's 18 Motion for Summary Judgment. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
REZA AHMED HASHEMI,
Plaintiff,
Civil Case No. 14-11578
Honorable Linda V. Parker

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/

OPINION AND ORDER ADOPTING MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION (ECF NO. 25), GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT (ECF NO. 24), AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 18)
Plaintiff Reza Ahmed Hashemi (“Plaintiff”) suffers from multiple sclerosis.
He filed the present action on April 21, 2014, seeking review of the Commissioner
of Social Security's (the “Commissioner” or Defendant”) decision denying the
plaintiff's claim for a period of disability and disability insurance benefits under
Title II of the Social Security Act. (ECF No. 1.) The case was referred to United
States Magistrate Judge R. Steven Whalen, and thereafter to Magistrate Judge
Anthony P. Patti, under 28 U.S.C. § 636(b)(1)(B) and E.D. Mich. LR 72.1(b)(3).
(ECF Nos. 4, 25.) Thereafter, Plaintiff filed a motion for summary judgment to
reverse the decision of the Commissioner and remand the case to the Commission
for an award of benefits. (ECF No. 18.) Defendant filed a motion for summary
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judgment requesting affirmance of the decision of the Commissioner. (ECF No.
24.) Magistrate Judge Patti filed a report and recommendation on April 30, 2015,
recommending that Plaintiff's motion for summary judgment be denied and
Defendant's motion for summary judgment be granted. (ECF No. 25.) Plaintiff
filed timely objections to the R&R and Defendant filed a response. (ECF Nos. 28,
30.) This matter is now before the Court for review.
I.
Standard of Review
Under 42 U.S.C. § 405(g):
Any individual, after any final decision of the Commissioner of Social
Security made after a hearing to which he was a party . . . may obtain
a review of such decision by a civil action . . . The court shall have 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. The findings of the
Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . .
42 U.S.C. § 405(g) (emphasis added); see also Boyes v. Sec’y of Health and
Human Servs., 46 F.3d 510, 511-12 (6th Cir. 1994). “Substantial evidence is
defined as ‘such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.’ ” Abbott v. Sullivan, 905 F.2d 918, 922-23 (6th Cir.
1990) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). The
Commissioner’s findings are not subject to reversal because substantial evidence
exists in the record to support a different conclusion. Mullen v. Brown, 800 F.2d
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535, 545 (6th Cir. 1986) (citing Baker v. Kechler, 730 F.2d 1147, 1150 (8th Cir.
1984)). If the Commissioner’s decision is supported by substantial evidence, a
reviewing court must affirm. Studaway v. Sec’y of Health and Human Servs., 815
F.2d 1074, 1076 (6th Cir. 1987).
The court reviews de novo the parts of an R&R to which a party objects.
See Fed. R. Civ. P. 72(b); Thomas v. Halter, 131 F. Supp. 2d 942, 944 (E.D. Mich.
2001). However, the Court “is not required to articulate all the reasons it rejects a
party’s objections.” Id.
II.
The ALJ’s Decision and the R&R
An ALJ considering a disability claim is required to follow a five-step
sequential process to evaluate the claim. 20 C.F.R. § 404.1520(a)(4). The fivestep process is as follows:
1.

At the first step, the ALJ considers whether the claimant is
currently engaged in substantial gainful activity. 20 C.F.R.
§ 404.1520(a)(4)(i).

2.

At the second step, the ALJ considers whether the claimant has
a severe medically determinable physical or mental impairment
that meets the duration requirement of the regulations and
which significantly limits the claimant’s ability to do basic
work activities. 20 C.F.R. §§ 404.1520(a)(4)(ii) and (c).

3.

At the third step, the ALJ again considers the medical severity
of the claimant’s impairment to determine whether the
impairment meets or equals an impairment listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1. 20 C.F.R.
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§ 404.1520(a)(4)(iii). If the claimant’s impairment meets any
Listing, he or she is determined to be disabled regardless of
other factors. Id.
4.

At the fourth step, the ALJ assesses the claimant’s residual
functional capacity (“RFC”) and past relevant work to
determine whether the claimant can perform his or her past
relevant work. 20 C.F.R. § 404.1520(a)(4)(iv).

5.

At the fifth step, the ALJ considers the claimant’s RFC, age,
education, and past work experience to see if he can do other
work. 20 C.F.R. § 404.1420(a)(4)(v). If there is no such work
that the claimant can perform, the ALJ must find that he or she
is disabled. Id.

If the ALJ determines that the claimant is disabled or not disabled at a step,
the ALJ makes his or her decision and does not proceed further. Id. However, if
the ALJ does not find that the claimant is disabled or not disabled at a step, the
ALJ must proceed to the next step. Id. “The burden of proof is on the claimant
through the first four steps . . . If the analysis reaches the fifth step without a
finding that the claimant is not disabled, the burden transfers to the Secretary.”
Preslar v. Sec’y of Health and Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994);
see also Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
At the first step, the ALJ concluded that Plaintiff had not engaged in
substantial gainful activity since July 8, 2008. (ECF No. 13-2 at Pg. ID 121.) The
ALJ found at step two that Plaintiff has the following severe impairments: multiple
sclerosis, reduced left eye visual activity, major depressive disorder and
posttraumatic stress disorder. (Id.) At step three, the ALJ found that Plaintiff did
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not have an impairment or combination of impairments meeting or medically
equaling one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix
1. (Id.)
At step four, the ALJ evaluated Plaintiff’s residual functional capacity
(“RFC”) and determined that Plaintiff can perform light work with:
[N]o limitation on sitting but he is limited to standing/walking two
hours in an eight-hour workday. He can occasionally use foot pedals
with the left foot, climb ramps and stairs, balance[,] and operate a
motor vehicle. He should avoid climbing ladders, ropes and scaffolds,
unprotected heights and dangerous machinery. He is able to follow
simple and low level detailed instructions, i.e., unskilled and
semiskilled instructions. He can have only superficial interaction with
the public. He can maintain routine interaction with supervisors and
co-workers, but should avoid working as a team member.
(Id. at Pg. ID 122.) The ALJ then concluded that Plaintiff was unable to perform
his past relevant work. However, at the final step, the ALJ concluded that a
significant number of jobs exist in the national economy that Plaintiff could
perform given his age, education, work-experience, and RFC, and that Plaintiff
was not disabled under the Social Security Act. (Id. at Pg. ID 130–31.)
Thereafter, Magistrate Judge Patti found that the ALJ's credibility
determination was supported by substantial evidence. In his opinion, Magistrate
Judge Patti discussed the medical evidence in the record and the factual statements
that tended to undercut Plaintiff’s arguments that: (1) the ALJ improperly
discounted Plaintiff’s credibility; (2) the ALJ improperly discounted the opinions

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of Plaintiff’s treating physicians, thereby improperly weighing the opinion
evidence; and (3) the ALJ failed to include Plaintiff’s memory and vision problems
in his hypothetical to the vocational expert (“VE”). (ECF No. 25 at Pg. ID 13–29.)
Magistrate Judge Patti concluded by determining that substantial evidence
supported the ALJ's decision denying benefits, and recommended that the Court
deny Plaintiff’s motion for summary judgment and grant Defendant’s motion for
summary judgment. (Id. at Pg. ID 985.) Subsequently, Plaintiff timely filed his
objections. (ECF No. 28.)
III.
Plaintiff’s Objections
A. Prescribed Treatment
Plaintiff first contends that the magistrate judge erred in considering
Plaintiff’s periods of non-compliance with treatment as one factor in his credibility
determination. (Id. at Pg. ID 1009–10.) Plaintiff’s objection mimics his summary
judgment argument, and as the magistrate judge noted, “[t]he Sixth Circuit
recognizes that a claimant’s failure to follow prescribed treatment is evidence
supporting an ALJ’s factual finding that the claimant’s testimony was not fully
credible.” Lemle v. Comm'r of Soc. Sec., No. CIV.A. 11-10295, 2012 WL
1060111, at *9 (E.D. Mich. Jan. 27, 2012) report and recommendation adopted,
No. 11-10295, 2012 WL 1059787 (E.D. Mich. Mar. 29, 2012) (citing Sias v.

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Secretary of Health & Human Serv's., 861 F.2d 475, 480 (6th Cir. 1988)). Thus,
the Court finds that Plaintiff’s argument is unsubstantiated and accordingly rejects
Plaintiff’s first objection.
B. Brain MRIs
Second, Plaintiff asserts, as he did in his motion for summary judgment, that
the ALJ erred in rejecting Plaintiff’s claimed limitations, given that said limitations
were “testified-to limitations” and “corroborated in the objective evidence.” (Id. at
Pg. ID 1011–12.) Specifically, Plaintiff points to the fact that his 6 brain MRIs
confirmed his multiple sclerosis diagnosis, and provide the objective evidence to
support Plaintiff’s symptoms. (Id. at Pg. ID 1012.) As thoroughly explained by
Magistrate Judge Patti, there is no denial of these findings of this diagnosis by the
ALJ. Moreover, disability is a concept relating to functional limitations. Simon v.
Comm'r of Soc. Sec., No. 14-12007, 2015 WL 5026060, at *2 (E.D. Mich. Aug. 25,
2015) “It is an assessment of what the claimant can and cannot do, not what she
does and does not suffer from.” Id. (citing Howard v. Comm'r of Soc. Sec., 276
F.3d 235, 239 (6th Cir. 2002)). Accordingly, the Court rejects Plaintiff’s second
objection.
C. Waxing and Waning Nature of Multiple Sclerosis
The Court next reviews Plaintiff’s third objection. Similarly to Plaintiff’s
argument in his motion for summary judgment, Plaintiff again directs the Court’s

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attention to the “waxing and waning” nature of multiple sclerosis, and to the fact
that the Sixth Circuit holds that the ability to perform work activity during periods
of remission does not establish an ability to engage in substantial activity. (ECF
No. 28 at Pg. ID 1012.) However, as Magistrate Judge Patti noted, the ALJ never
asserted in support of his disability determination that Plaintiff performed or was
able to perform work activity during a period of remission. Thus, the Court is
uncertain as to why Plaintiff is directing the Court’s attention to this line of cases.
The ALJ, in support of his determination, relied on Plaintiff’s own testimony, as
well as consideration of the reports of the treating sources, the agency physicians,
the medical test results, and the record as a whole – amounting to substantial
evidence in support of the ALJ’s determination that Plaintiff is not disabled.
Accordingly, the Court rejects Plaintiff’s third objection.
D. Daily Activities
Fourth, Plaintiff contends that the magistrate judge erred in holding that the
ALJ properly considered – among other things – documents in the record
concerning Plaintiff’s daily activities, when making his credibility determination as
to Plaintiff’s claimed impairments. (Id. at Pg. ID 1013–14.) In support of this
assertion, Plaintiff first asserts that one of the documents relied on by the ALJ
came from a prior application for disability benefits that was denied. (Id. at 1014.)
This argument is baseless, given that the documents relied on were part of the

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administrative record for this application for disability benefits. (ECF No. 13-6 at
Pg. ID No. 430–48, 473–80.) Moreover, Plaintiff was informed by the Social
Security Administration Office of Disability Adjudication and Review Hearing
Office that a prior decision to deny benefits can be used to deny a new application
for benefits if the facts and the issues are the same. (Notice of Unfavorable
Decision, ECF No. 13-2 at Pg.ID 116.)
In further support of Plaintiff’s contention that the ALJ improperly
considered two documents pertaining to Plaintiff’s daily activities, Plaintiff argues
that the ALJ “cherry picked” when relying on the second document pertaining to
daily activity – given that it is indicated in this document that plaintiff is unable to
do laundry, dishes, make his bed, perform car maintenance, or use a checkbook.
(ECF No. 28 at Pg. ID 1014.) The Court finds Plaintiff’s argument unpersuasive
given that when discussing said document, the ALJ states that Plaintiff indicates
“he has problems taking care of his personal needs.” Thus it is readily apparent that
the ALJ took into consideration these limitations when making its credibility
determination. Accordingly, the Court rejects Plaintiff’s fourth objection.
E. GAF Scores
Fifth, Plaintiff takes issue with the fact that the ALJ considered Plaintiff’s
GAF scores when assessing RFC and ultimately finding that Plaintiff was not fully
credible. Plaintiff also takes issue with the fact that the magistrate judge referenced

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Plaintiff’s GAF scores in the Report and Recommendation. (ECF No. 28 at Pg. ID
1015–16.) In support of his objection, Plaintiff provides the following excerpt from
Sixth Circuit decision Kennedy v. Astrue, 247 F. Appx. 761, 766 (6th Cir. 2007):
Furthermore, the Commissioner “has declined to endorse the [GAF]
score for ‘use in the Social Security and SSI disability programs,’ and
has indicated that [GAF] scores have no ‘direct correlation to the
severity requirements of the mental disorders listings.’ ” DeBoard v.
Commissioner of Social Security, 211 Fed.Appx. 411 (6th Cir.2006)
(quoting Wind v. Barnhart, 133 Fed.Appx. 684, 691–92 n. 5 (11th
Cir.2005)) (quoting 65 Fed.Reg. 50746, 50764–65 (Aug. 21, 2000)).
The GAF scores, therefore, are not raw medical data and do not
necessarily indicate improved symptoms or mental functioning.
Kennedy, 247 F. Appx. at 766.
Plaintiff, however, excludes the immediately preceding excerpt in which the
court states that “[a] GAF score may help an ALJ assess mental RFC, but it is not
raw medical data. Rather, it allows a mental health professional to turn medical
signs and symptoms into a general assessment, understandable by a lay person, of
an individual's mental functioning.” Id. (emphasis added). The ALJ used Plaintiff’s
GAF scores, claimant’s self-reported severe mental impairments, as well as the
mental status exams in the record to assess Plaintiff’s mental RFC. Neither the ALJ
nor Magistrate Judge Patti treated Plaintiff’s GAF scores as raw medical data.
Thus, it is not clear to the Court why Plaintiff has provided this excerpt from the
Kennedy holding. Accordingly, the Court rejects Plaintiff’s fifth objection.

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F. Medical Opinions
Sixth, Plaintiff objects to the fact that the ALJ discounted the opinions of his
treating physicians. Having reviewed Plaintiff’s motion for summary judgment,
this objection is merely a recitation of the identical argument that was presented
before the magistrate judge. The Court finds that the magistrate judge thoroughly
discussed the ALJ’s treatment of the treating source evidence – specifically the
opinions of Dr. Daryl Thompson, Lori Wheelhouse, and Dr. Shahbaz Khan – and
properly reviewed the administrative record and applied the correct law in reaching
his conclusion. Moreover as the court in Owens v. Comm'r of Soc. Sec., No. 1:12CV-47, 2013 WL 1304470, at *3 (W.D. Mich. Mar. 28, 2013) properly indicated:
This Court is not obligated to address objections made in this form
because the objections fail to identify the specific errors in the
magistrate judge's proposed recommendations, see, e.g., Camardo v.
Gen. Motors Hourly–Rate Emps. Pension Plan, 806 F.Supp. 380, 382
(W.D.N.Y. 1992) (recitations of nearly identical arguments are
insufficient as objections and constitute an improper “second bite at
the apple”), and such objections undermine the purpose of the Federal
Magistrate's Act, 28 U.S.C. § 636, which serves to reduce duplicative
work and conserve judicial resources, see, e.g., Howard v. Sec'y of
Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).
Owens, 2013 WL 1304470, at *3. Accordingly, the Court rejects Plaintiff’s sixth
objection.
G. Vocational Expert Hypothetical
Lastly, Plaintiff, in his seventh objection, contends that the ALJ’s
hypothetical posed to the vocational expert (“VE”) was in error, given that
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allegedly, it did not incorporate all of Plaintiff’s documented limitations. (ECF No.
28 at Pg. ID 1021.) Having reviewed the record, it is blatantly apparent that this
objection is also a recitation of the identical argument presented before Magistrate
Judge Patti. The Court finds that the magistrate judge thoroughly reviewed the
administrative record and applied the correct law in reaching his conclusion, and
properly determined that the ALJ accurately portrayed Plaintiff’s individual
physical and mental impairments in his hypothetical question posed to the VE.
Thus the Court relies on the magistrate judge’s analysis, concerning Plaintiff’s
seventh objection.
Additionally, regarding Plaintiff’s reduced visual acuity, the ALJ, when
analyzing the neurological exam conducted by Dr. John Sand, noted that “[t]he
claimant would have limited left eye vision, could never work at unprotected
heights and only occasionally work around moving mechanical parts and operate
motor vehicles. The undersigned give[s] substantial weight to the opinion of Dr.
Sand [.]” (ECF No. 13-2 at Pg. ID 129.) Thus, it is apparent that the ALJ took
Plaintiff’s reduced visual acuity into consideration when telling the VE that the
hypothetical plaintiff was restricted from working at unprotected heights.
Moreover, the Court also notes that Plaintiff fails to indicate how his reduced
visual acuity limits his job performance capabilities to such a point where Plaintiff

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is unable to perform any jobs. Plaintiff fails to explain how his reduced visual
acuity would render him totally disabled.
For these reasons, the Court rejects Plaintiff’s objection to the R&R and
adopts Magistrate Judge Patti’s Report and Recommendation. (ECF No. 25.)
Accordingly,
IT IS ORDERED that Plaintiff’s motion for summary judgment (ECF No.
18) is DENIED;
IT IS FURTHER ORDERED, that the Commissioner’s motion for
summary judgment (ECF No. 24) is GRANTED;
IT IS FURTHER ORDERED, that the Complaint is DISMISSED WITH
PREJUDICE.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: September 29, 2015
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, September 29, 2015, by electronic and/or
U.S. First Class mail.
s/ Richard Loury
Case Manager

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