McAllister v. Commissioner
OPINION AND ORDER Sustaining in Part and Overruling in Part Plaintiff's Objections to Report and Recommendation, and Modifying in Part and Adopting 17 Report and Recommendation. Signed by District Judge Terrence G. Berg. (AChu)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
MELISSA M. MCALLISTER,
Case No. 15-13605
Hon. Terrence G. Berg
Hon. Patricia T. Morris
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
OPINION AND ORDER SUSTAINING IN PART AND OVERRULING IN
PART PLAINTIFF’S OBJECTIONS TO REPORT AND RECOMMENDATION
(DKT. 18) AND MODIFYING IN PART AND ADOPTING
REPORT AND RECOMMENDATION (DKT. 17)
This matter is before the Court on Plaintiff Melissa McAllister’s objections
(Dkt. 18) to Magistrate Judge Patricia T. Morris’s September 29, 2016 report and
recommendation (Dkt. 17), recommending that the Court deny Petitioner’s motion to
remand (Dkt. 14), grant Defendant’s motion for summary judgment (Dkt. 15), and
affirm this case. Dkt. 17, Pg. ID 852.
With the exception of two scrivener’s errors discussed below, the Court finds that
Magistrate Judge Morris’s findings of fact are accurate and adopts them for purposes
of this order.
Plaintiff raises four different objections to the report and recommendation. The
first and second objections contain multiple grounds. Before making a “de novo
determination of those portions of the report . . . to which objection is made,” 28 U.S.C.
§ 636(b)(1), the Court will address objections that Plaintiff improperly raised.
a. Objections Plaintiff improperly raised
Plaintiff objects to the report and recommendation’s finding that the ALJ provided
good reasons for not according great weight to Dr. Nowland’s Residual Functional
Capacity Assessment (“RFC Assessment”), Dkt. 9-10, Pg. ID 690-93, and provides
four reasons for support. Two of those reasons are improperly raised. First, Plaintiff
argues that the ALJ failed to adequately identify the purported inconsistencies
between the RFC Assessment and the other evidence of record. Dkt. 18, Pg. ID 897.
Second, Plaintiff argues that the ALJ found that Plaintiff was suffering from many
severe impairments and that the statements in Dr. Nowland’s RFC Assessment were
consistent with that finding, so the ALJ should have given weight to the information
in the RFC Assessment. Dkt. 18, Pg. ID 898. Plaintiff advanced both arguments in
her motion to remand. Dkt. 14, Pg. IDs 786, 786-787.
Plaintiff also objects to the adequacy of the ALJ’s analysis of Plaintiff’s credibility
on the ground that Plaintiff did not exaggerate her physical limitations and even
admitted that some of her conditions improved. Dkt. 18, Pg. ID 900. Plaintiff asserted
the same argument in her motion to remand. Dkt. 14, Pg. IDs 792-793.
And Plaintiff objects to the hypothetical RFC created by the ALJ who oversaw the
administrative proceedings on the ground that it does not account for all of Plaintiff’s
impairments. Dkt. 18, Pg. IDs 900-901. Plaintiff asserted the same argument in her
motion to remand. Dkt. 14, Pg. ID 790.
All of these objections raise arguments that were advanced in Plaintiff’s initial
motion. To engage in an extended discussion of the merits of these objections would
be to “undermine the purpose of the Federal Magistrate's Act, 28 U.S.C. § 636, which
serves to reduce duplicative work and conserve judicial resources.” Nork v. Comm’r
of Soc. Sec., 2015 WL 3620482 at *1 (E.D. Mich. 2015). Nonetheless, the Court has
considered these objections, and finds that they are not well taken; Magistrate Judge
Morris articulated valid reasons for rejecting these arguments, and Plaintiff provides
no good basis for disturbing the recommendation.
The Court now turns to those objections that are properly raised.
b. Objections Plaintiff properly raised.
i. Plaintiff’s objection to the factual recitation
Plaintiff objects to the report and recommendation’s factual recitation on three
grounds. First, Plaintiff argues that the report and recommendation states that the
ALJ found that Plaintiff had engaged in substantial gainful activity following the
alleged onset date of her disability, when in fact the ALJ found that Plaintiff had not
engaged in such activity. Dkt. 18, Pg. ID 894. Plaintiff is correct. Dkt. 17, Pg. ID. 856;
Dkt. 9-2, Pg. ID 68. It is clear from the entire context of the report and
recommendation that the omission of the word “not” is merely a scrivener’s error. If
Magistrate Judge Morris had intended to find that Plaintiff had engaged in
substantial gainful activity after the alleged onset date of her disability, the inquiry
would have ended there. Dkt. 17, Pg. ID 856 (describing the ALJ moving to the next
steps of a “sequential” analysis). But Judge Morris conducted an in-depth discussion
of the remaining steps of the analysis, showing that she agreed with the ALJ’s finding
that Plaintiff had not engaged in gainful employment since the onset date of her
alleged disability and also demonstrating that the typographical error had no
material impact on the ultimate decision. Because the report and recommendation
contains a typographical error, however, Plaintiff’s objection is SUSTAINED, and
the report and recommendation is MODIFIED to reflect that the ALJ found that
Plaintiff had not engaged in substantial gainful activity following the alleged onset
date of her disability. But because Plaintiff points to no portion of the report and
recommendation’s analysis that relies on this error, this objection does not warrant
rejecting the entire report and recommendation.
Second, Plaintiff argues that the report and recommendation states that
Dr. Nowland’s RFC Questionnaire concluded that Plaintiff would need to receive
medical treatment more than three times per month, when it actually concluded that
Plaintiff would be absent from work more three times per month. Dkt. 18, Pg. ID 895.
As to this claimed mistake, Plaintiff again is essentially correct. Dkt. 17, Pg. ID 861;
Dkt. 9-10, Pg. ID 693.1 Plaintiff’s objection is therefore SUSTAINED, and the report
Dr. Nowland’s RFC Questionnaire contains the following question and answer:
Although this answer clearly does say that Plaintiff would have to miss work more
than three times a month, is also indicates that the cause of these absences could be
Questionnaire concluded that Plaintiff’s impairments or treatment would cause her
to miss work more than three times per month. However, Plaintiff points to no portion
of the report and recommendation’s analysis that relies on this error to reach its
conclusion. Moreover, the ALJ gave minimal weight to Dr. Nowland’s opinion, stating
that “he provided no additional explanation for his conclusions regarding the
claimant’s need for unscheduled work breaks and excessive absences, which strongly
suggests that he relied heavily on the claimant’s subjective complaints.” Dkt. 9-2,
Pg. ID 75. Magistrate Judge Morris was justified in finding that this conclusion was
based on substantial evidence. Consequently, this objection does not warrant
rejecting the entire report and recommendation.
Third, Plaintiff argues that the report and recommendation, while discussing
Dr. Ronan’s consultative examination, neglects to mention that Dr. Ronan concluded
that Plaintiff had a guarded prognosis and that a medical review would be helpful.
Dkt. 18, Pg. ID 895. Although the report and recommendation does not appear to
include that information, Plaintiff fails to identify any specific conclusion the report
and recommendation reaches or any analysis the report and recommendation
conducts that would necessarily change from the addition of Dr. Ronan’s conclusions
either because of the need to obtain treatment or the nature of the impairments.
Consequently, for the report and recommendation to characterize the RFC
Questionnaire as stating that the Plaintiff would need to receive medical treatment
more than three times per month is not a particularly grave error. Indeed the
Questionnaire can be reasonably interpreted as stating that the patient’s treatment
might require her to visit the doctor more than three times a month.
in the factual recitation. Thus the Court does not view this argument as a sufficiently
specific ground for objection—Plaintiff has identified no error, only an alleged
omission. Plaintiff’s objection on this ground is therefore OVERRULED.
ii. Plaintiff’s objection to whether the ALJ provided
good reasons for discounting Dr. Nowland’s RFC
Plaintiff also objects to the report and recommendation’s finding that the ALJ
provided good reasons for discounting Dr. Nowland’s RFC on four grounds, two of
which the Court has already addressed. The remaining two grounds are:
(1) The report and recommendation states that Dr. Nowland left blank
a section in the RFC labeled “Diagnostic Test,” but there is no such
(2) The report and recommendation improperly concludes that the ALJ’s
finding that Plaintiff had credibility issues would allow the ALJ to
discount Dr. Nowland’s RFC
Dkt. 18, Pg. IDs 898-899, 899.
With respect to Plaintiff’s argument about the “Diagnostic Test” section, the report
and recommendation does not find that there was such a section in the RFC
Questionnaire itself, but instead references Dr. Nowland’s progress notes (which
contained a space for diagnostic testing information that was sometimes left blank).
Dkt. 17, Pg. IDs 880-881 (citing Dkt. 9-8, Pg. IDs 494, 496, 498)
And with respect to Plaintiff’s argument about the report and recommendation’s
conclusion that the ALJ could discount Dr. Nowland’s RFC based on the ALJ’s finding
that Plaintiff had credibility issues, Plaintiff provides no legal support for her position
and no specific explanation of why the report and recommendation’s reasoning—
which is supported
by case law—is incorrect.
recommendation’s conclusion appears correct. The ALJ found that Dr. Nowland’s
assessment was not supported by the doctor’s own treatment notes or other objective
evidence, and was instead based on Plaintiff’s subjective complaints of her symptoms.
Dkt. 9-2, Pg. ID 75. Thus, if Dr. Nowland relied on Plaintiff’s subjective statements
and those statements were themselves unreliable, Dr. Nowland’s conclusions were
also prone to being unreliable. Moreover, the ALJ explained in some detail the other
medical evidence she found to be entitled to greater weight than Dr. Nowland’s,
including that of Drs. Ware, Shaikh, Ronan, and the State agency medical consultant,
which supported the conclusion that the claimant retained the capacity to perform a
modified range of “light” work activity. Dkt. 9-2, Pg. IDs 72-75.
Plaintiff’s objection is therefore OVERRULED.
The Court has carefully reviewed the Magistrate Judge’s report and
recommendation, and finds that, outside of the two scrivener’s errors, the report is
well reasoned and supported by the relevant law. The Court will therefore modify the
report and recommendation to correct the scrivener’s errors, and will then adopt it as
this Court’s findings of fact and conclusions of law.
OVERRULED IN PART, Magistrate Judge Morris’s report and recommendation is
MODIFIED IN PART AND ADOPTED, Plaintiff motion to remand is DENIED,
Defendant’s motion for summary judgment is GRANTED, and this case is
Dated: March 31, 2017
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Certificate of Service
I hereby certify that this Order was electronically submitted on March 31,
2017, using the CM/ECF system, which will send notification to all parties.
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