Williams v. SSA, Commissioner of

Filing 15

ORDER Adopting Report and Recommendation for 12 Report and Recommendation. Signed by District Judge Terrence G. Berg. (DPar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANTOINE DION WILLIAMS,
Plaintiff,
v.

Case No. 14-13677

COMMISSIONER OF SOCIAL
SECURITY,

HON. TERRENCE G. BERG
HON. CHARLES E. BINDER

Defendant.
/
ORDER ADOPTING REPORT AND RECOMMENDATION
This matter is before the Court on Magistrate Judge Charles
Binder’s report and recommendation of June 23, 2015 (Dkt. 12),
recommending that Plaintiff’s motion for summary judgment be denied,
that Defendant’s motion for summary judgment be granted, and that
the findings and conclusions of the Commissioner be affirmed.
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). Plaintiff filed
timely objections (Dkt. 13) to the report and recommendation;
Defendant filed a response (Dkt. 14) 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). “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 Binder’s report and
recommendation, and Plaintiff’s objections thereto. For the reasons set
forth below, Plaintiff’s objections are OVERRULED, and the report
and recommendation is ACCEPTED and ADOPTED as the Court’s
findings of fact and conclusions of law. Consequently, the decision of
the Commissioner denying Plaintiff’s disability claim is AFFIRMED.
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
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claimant qualifies as disabled “if []he cannot, in light of h[is] 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 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
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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 []he is precluded from performing h[is] 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
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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). If the Appeals Council denies review,
then 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
509 (citing Bell v. Comm’r of Soc. Sec., 105 F.3d 244, 246 (6th Cir.
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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’s Decision is Supported by
Substantial Evidence

Plaintiff raises four objections to the Report and Recommendation,
namely, that Magistrate Judge Binder: (1) erred in finding that the ALJ
properly evaluated Plaintiff’s purported mood disorder and neck and
back pain; (2) erred in affirming the ALJ’s evaluation of the Plaintiff’s
credibility, specifically the ALJ’s rejection of Plaintiff’s testimony
concerning his need for breaks during the day, and his need to elevate
his legs; (3) erred in purportedly ignoring the opinion of Plaintiff’s
treating physician, Dr. Backos, that Plaintiff was totally disabled; and
(4) erred when he failed to address Plaintiff’s many additional
arguments in support of disability. As discussed below, none of these
objections warrants disturbing Magistrate Judge Binder’s
recommendation.
i)

Neck Impairments and Mood Disorder

Plaintiff first objects that Magistrate Judge Binder should have
recommended a remand, as the ALJ determined that Plaintiff had only
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one severe impairment at step two – status post non-operative fracture
of left knee – and failed to recognize Plaintiff’s mood disorder, and Cspine and L-spine impairments, as potentially disabling. It appears,
then, that Plaintiff is specifically objecting to Magistrate Judge Binder
conclusion that the ALJ did not reversibly err in failing to recognize
Plaintiff’s mood disorder and neck and spine conditions as severe
impairments at step two.
However, since the ALJ did recognize Plaintiff’s knee fracture as a
“severe impairment” at step two, Plaintiff cleared step two of the
analysis and the ALJ proceeded to the subsequent steps. This caused
the ALJ to consider Plaintiff’s severe and non-severe impairments in
the remaining steps of the sequential analysis. The fact that some of
Plaintiff’s impairments were not deemed to be “severe” at step two is
therefore legally irrelevant, because Plaintiff’s other conditions were
still being considered at the subsequent steps of the analysis. See
Anthony v. Astrue, 266 Fed. App’x 451, 457 (6th Cir. 2008); Maziarz v.
Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987)
(holding that the failure to find that an impairment was severe was

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harmless error where other impairments were deemed severe). The
ALJ’s opinion explicitly acknowledged this, finding at step two that:
[Plaintiff] has the following identifiable regulatory “severe”
impairments:
Status post non-operative fracture of the left knee.
Non-“severe” mild disc herniation; mild uncovertebral joint
spurring left at C4-5 with foraminal narrowing but no stenosis.
The regulatory identified “severe” impairments impose some
limits on [Plaintiff’s] ability to stand, walk and lift. The non“severe” impairments are not independently limiting although do
act in combination with the “severe” impairments to limit
[Plaintiff] as I have found when limiting [Plaintiff’s] remaining
residual functional capacity (Tr. 58).
In other words, even though the ALJ did not find Plaintiff’s spine
ailments to be “severe” at step two, the ALJ evaluated the objective
medical evidence relating to this condition when fashioning Plaintiff’s
residual functional capacity.
As to Plaintiff’s alleged “mood disorder,” Plaintiff’s objection does
not point to any medical evidence in the record that the ALJ supposedly
ignored. Plaintiff’s objections lack any survey, much less meaningful
discussion, of the medical record, and Plaintiff likewise failed to show
any meaningful error in Magistrate Judge Binder’s reasoning. “It is
well-established that issues adverted to in a perfunctory manner,
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unaccompanied by some effort at developed argument, are deemed
waived.” Dillery v. City of Sandusky, 398 F.3d 562, 569 (6th Cir. 2005)
(internal quotation marks and citations omitted); see also Bishop v.
Gosiger, Inc., 692 F.Supp.2d 762, 774 (E.D. Mich. 2010) (“It is not
sufficient for a party to mention a possible argument in a most skeletal
way, leaving the court to put flesh on its bones” (internal quotation
marks and citations omitted). Furthermore, the Court has
independently reviewed the medical records on file, and has not
uncovered any significant treatment of Plaintiff for a “mood disorder.”
Additionally, in Plaintiff’s initial disability application, he did not allege
that he had a “mood disorder” (Tr. 308).1
In sum, substantial evidence on the record supports the ALJ’s
finding that Plaintiff retained the residual functional capacity for a
restricted range of sedentary work activity. Specifically, substantial
evidence supports the conclusion that Plaintiff’s impairments prevented
him from working at jobs that exposed workers to temperature
extremes, high humidity, moving machinery and unprotected heights.
Rather, Plaintiff alleged that the following physical or mental conditions limited
his ability to work: (1) slipped disc in back; (2) pinched nerve in back; (3) severe
migraines; (4) permanent broken patella in L knee; (5) permanent nerve damage in
L knee; (6) arthritis in L foot; (7) gastrointestinal problems; and (8) floaters in eye
(Tr. 308).
1

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He was also found incapable of climbing ladders, ramps or scaffolding.
Nevertheless, the ALJ found that the Plaintiff retained the residual
functional capacity to perform a significant number of sedentary jobs.
Plaintiff does not point to any evidence in the record that the ALJ failed
to analyze in crafting this residual functional capacity. Thus, this
objection is not well-taken.
ii)

Credibility Determination

Plaintiff next argues that the ALJ erred in finding that his
claimed limitations were not supported by the medical evidence and
were less than fully credible. Specifically, Plaintiff argues that the ALJ
should have accepted his testimony concerning his need for breaks
throughout the day, and his need to elevate his legs. “There is no
question that subjective complaints of a claimant can support a claim
for disability, if there is also evidence of an underlying medical
condition in the record.” Jones, 336 F.3d at 475 (citing Young v. Sec’y of
Health & Human Servs., 925 F.2d 146, 150–51 (6th Cir. 1990)).
However, “an ALJ is not required to accept a claimant’s subjective
complaints and may ... consider the credibility of a claimant when
making a determination of disability.” Id. at 476 (citing Walters, 127
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F.3d at 531). Notably, an ALJ’s credibility determinations about the
claimant are to be given great weight, “particularly since the ALJ is
charged with observing the claimant's demeanor and credibility.”
However, they must also be supported by substantial evidence. See
Walters, 127 F.3d at 531 (citations omitted).
Here, the ALJ specifically set forth his reasons for discrediting
Plaintiff’s subjective complaints based on the medical evidence in the
record and inconsistencies in his testimony. In particular, the ALJ
found that:
[Plaintiff’s] allegations are not consistent with his activities.
Supposedly he is lying down much of the day, yet he goes to
physical therapy three times a week, he writes music and once or
twice a year takes a bus to a studio to record it. His cousin
Dominic visits daily and Dominic was driving at least until he
broke the grandmother's car. [Plaintiff] also has to pick up his
medical marijuana himself to stay within the law (Tr. 62).
Plaintiff’s objections do not cite to any evidence indicating that this
credibility determination was unsupported by substantial evidence.
Most notably, Plaintiff does not cite to any objective medical evidence
indicating that Plaintiff needs breaks throughout the day, or needs to
elevate his legs. Given that an ALJ’s credibility determinations are to
be given “great weight,” there is simply not enough contrary evidence in
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the record to discard the ALJ’s credibility determination. This objection
is not well-taken.
iii)

Treating Physician

Next, Plaintiff objects that Magistrate Judge Binder did not
reverse the ALJ based on his analysis concerning Plaintiff’s treating
physician, Dr. Backos. This objection is also without merit. In
assessing the medical evidence supplied in support of a claim, there are
certain governing standards to which an ALJ must adhere. Key among
these is that greater deference is generally given to the opinions of
treating physicians than to those of non-treating physicians, commonly
known as the treating physician rule. See SSR 96–2p, 1996 WL 374188
(July 2, 1996); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir.
2004). Because treating physicians are “the medical professionals most
able to provide a detailed, longitudinal picture of [a claimant’s] medical
impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings
alone,” their opinions are generally accorded more weight than those of
non-treating physicians. 20 C.F.R. § 416.927(d)(2). Therefore, if the
opinion of the treating physician as to the nature and severity of a
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claimant’s conditions is “well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with other
substantial evidence in [the] case record,” then it will be accorded
controlling weight. Wilson, 378 F.3d at 544.
When the treating physician’s opinion is not controlling the ALJ,
in determining how much weight is appropriate, must consider a host of
factors, including the length, frequency, nature, and extent of the
treatment relationship; the supportability and consistency of the
physician’s conclusions; the specialization of the physician; and any
other relevant factors. Id. However, in all cases there remains a
presumption, albeit a rebuttable one, that the opinion of a treating
physician is entitled to great deference, its non-controlling status
notwithstanding. See SSR 96–2p, 1996 WL 374188, at *4 (“In many
cases, a treating physician’s medical opinion will be entitled to the
greatest weight and should be adopted, even if it does not meet the test
for controlling weight”).
There is an additional procedural requirement associated with the
treating physician rule. Specifically, the ALJ must provide “good
reasons” for discounting treating physicians’ opinions, reasons that are
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“sufficiently specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source’s medical opinion and
the reasons for that weight.” Id. at *5. The purpose of this procedural
aspect of the treating physician rule is two-fold. First, the explanation
“‘let[s] claimants understand the disposition of their cases,’ particularly
where a claimant knows that his physician has deemed him disabled
and therefore ‘might be bewildered when told by an administrative
bureaucracy that []he is not, unless some reason for the agency’s
decision is supplied.’” Wilson, 378 F.3d at 544 (quoting Snell v. Apfel,
177 F.3d 128, 134 (2d Cir. 1999)). Second, the explanation “ensures
that the ALJ applies the treating physician rule and permits
meaningful appellate review of the ALJ’s application of the rule.” Id.
Magistrate Judge Binder correctly concluded that that the ALJ
gave “good reasons” for discounting Dr. Backos’s opinion that Plaintiff
was completely unable to work and required household assistance (Tr.
471). The reason given was that Dr. Backos offered little objective
evidence during the relevant period to support his disability
determination. Moreover, the ALJ discounted Dr. Backos’s opinion
based upon the “negative” examinations (i.e. no significant findings) of
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Plaintiff’s other treating physicians, in particular Dr. Eltawahy.2
Having reviewed the ALJ’s decision, as well as the underlying medical
records, the Court agrees with the Magistrate Judge that the ALJ’s
decision to give Dr. Backos’s opinion non-controlling weight was both
reasonable and adequately explained. The ALJ based his decision on a
review of all of the physicians and other medical professionals who
treated and examined Plaintiff, and reached his conclusions based on
the entire record. Moreover, the Court has also reviewed Dr. Backos’s
records. The record contains several one-page “disability certificates”
(see, e.g., Tr. 544, 548, 558) upon which Dr. Backos checked a box
indicating that Plaintiff is “disabled” from all “work/employment.”
First, these “certificates” are not entitled to any special deference since
“[i]t is well settled that the ultimate issue of disability is reserved to the
Commissioner.” Kidd v. Comm’r of Soc. Sec., 283 Fed. App’x 336, 341
(6th Cir.2008); Gaskin v. Comm’r of Soc. Sec., 280 Fed. App’x 472, 475–
76 (6th Cir. 2008); 20 C.F.R. § 416.927(e)(1) (Commissioner is
responsible for deciding the ultimate issue of disability and a statement
The ALJ specifically cited to a November 25, 2011 MRI of Plaintiff’s cervical spine
ordered by Dr. Eltahawy, which showed a mild degenerative change with anterior
minimal spurs at C4-5 and C5-6 and mild uncovertebral joint spurring on the left at
C4-5 with foraminal narrowing but no stenosis (Tr. 61).
2

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by a medical source that you are “disabled” or “unable to work” does not
mean that claimant will be found disabled); SSR 96–5p, 61 Fed.Reg.
34471, 34472, 1996 WL 374183 (1996) (the issue of whether an
individual is “disabled” under the Act is an administrative finding
reserved to the Commissioner). Second, the ALJ’s decision to discount
Dr. Backos’s conclusion that Plaintiff was “disabled” was sound, as this
result was supported by references to objective medical evidence
concerning Plaintiff’s condition. In sum, this objection is not well-taken.
iv)

Push-Pull Restrictions

Finally, Plaintiff objects that Magistrate Judge Binder erred by
not accepting Plaintiff’s “many additional arguments in support of
disability.” This objection, therefore, appears to be in the nature of a
catch-all. The two specific arguments raised by Plaintiff relate to (1)
the ALJ’s purported failure to “to provide a function by-function
analysis (omitting Plaintiff’s ability to push and/or pull)” and (2) a
general objection about a failure to recognize Plaintiff’s alleged mood
disorder. As to the mood disorder, Plaintiff fails to specify any medical
evidence in the record relating to a mood disorder which the ALJ

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allegedly ignored. Indeed, it does not appear that the medical records
include significant treatment for a mood disorder.
As to Plaintiff’s ability to push or pull, the Commissioner argues
persuasively that, even if the ALJ erred in not discussing Plaintiff’s
purported limitations in his ability to push or pull, the outcome of this
case would not have changed because the ALJ found Plaintiff limited to
a reduced range of sedentary work (Tr. 13). SSR 96–9p states
restrictions on the ability to push or pull will generally have “little
effect” on the unskilled sedentary occupational base. See Riley v.
Colvin, No. 1:13-CV-23, 2014 WL 619558, at *4 (E.D. Tenn. Feb. 18,
2014) citing SSR 96–9p, 1996 WL 374185 at *6.
In any event, this generalized objection does not demonstrate that
Magistrate Judge Binder’s recommendation should not be adopted.
CONCLUSION
For the reasons set forth above,
It is hereby ORDERED that Magistrate Judge Binder’s report
and recommendation of June 23, 2015 (Dkt. 12) is ACCEPTED and
ADOPTED.

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It is FURTHER ORDERED that Plaintiff’s motion for summary
judgment (Dkt. 10) is DENIED and Defendant’s motion for summary
judgment (Dkt. 11) is GRANTED.
It is FURTHER ORDERED that the findings and conclusions of
the Commissioner are AFFIRMED.
SO ORDERED.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated: September 30, 2015
Certificate of Service
I hereby certify that this Order was electronically submitted on
September 30, 2015, using the CM/ECF system, which will send
notification to each party.
By: s/A. Chubb
Case Manager

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