Monville v. Social Security, Comissioner of

Filing 20

OPINION and ORDER (1) Adopting Magistrate Judge's 17 Report and Recommendation; (2) Denying Plaintiff's 10 Motion for Summary Judgment; (3) Granting Defendant's 14 Motion for Summary Judgment; and (4) Affirming Defendant's Decision Denying Plaintiff Social Security Benefits. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
HEATHER N. MONVILLE,
Plaintiff,
Civil Case No. 16-12195
Honorable Linda V. Parker

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________/

OPINION AND ORDER (1) ADOPTING MAGISTRATE JUDGE’S
AUGUST 18, 2017 REPORT AND RECOMMENDATION [ECF NO. 17]; (2)
DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [ECF
NO. 10]; (3) GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT [ECF NO. 14]; AND (4) AFFIRMING DEFENDANT’S
DECISION DENYING PLAINTIFF SOCIAL SECURITY BENEFITS
Plaintiff filed a Title II application for disability insurance benefits on
August 21, 2013, alleging that she became disabled on March 16, 2010. The
Social Security Administration denied Plaintiff’s application for benefits initially
on September 25, 2013. Upon Plaintiff’s request, Administrative Law Judge
Andrew G. Sloss (“ALJ Sloss”) conducted a de novo hearing on March 5, 2015.
ALJ Sloss issued a decision on March 16, 2015, finding Plaintiff not disabled
within the meaning of the Social Security Act and therefore not entitled to benefits.
ALJ Sloss’ decision became the final decision of the Social Security Commissioner
(“Commissioner”) on May 20, 2016, when the Social Security Appeals Council

denied review. Plaintiff initiated this lawsuit seeking judicial review of the
Commissioner’s unfavorable decision on June 15, 2016.
Thereafter, both parties filed motions for summary judgment. (ECF Nos. 10,
14.) The Court has referred this matter to Magistrate Judge Stephanie Dawkins
Davis for all pretrial proceedings, including a hearing and determination of all nondispositive matters pursuant to 28 U.S.C. § 636(b)(1)(A) and/or a report and
recommendation (“R&R”) on all dispositive matters pursuant to 28 U.S.C.
§ 636(b)(1)(B). (ECF No. 13.) On August 18, 2017, Magistrate Judge Davis filed
her R&R recommending that this Court deny Plaintiff’s motion, grant the
Commissioner’s motion, and affirm the Commissioner’s decision finding Plaintiff
not disabled under the Social Security Act. (ECF No. 17.) At the conclusion of
the R&R, Magistrate Judge Davis advises the parties that they may object to and
seek review of the R&R within fourteen days of service upon them. Plaintiff filed
objections to the R&R on August 31, 2017. (ECF No. 18.)
STANDARD OF REVIEW
The Social Security Act provides:
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 . . .
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42 U.S.C. § 405(g) (emphasis added); see also Boyes v. Sec’y of Health & Human
Servs., 46 F.3d 510, 511-12 (6th Cir. 1994). Courts are to review the entire
administrative record to determine whether the ALJ’s decision is supported by
substantial evidence, but may “not reconsider facts, re-weigh the evidence, resolve
conflicts in evidence, decide questions of credibility, or substitute its judgment for
that of the ALJ.” Reynolds v. Comm’r of Soc. Sec., 424 F. App’x 411, 414 (6th
Cir. 2011) (citing Youghiogheny & Ohio Coal Co. v. Webb, 49 F.3d 244, 246 (6th
Cir. 1995)). “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, 91 S. Ct. 1420, 1427 (1971)). The Commissioner’s findings are not
subject to reversal because substantial evidence exists in the record to support a
different conclusion. McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th
Cir. 2006).
If substantial evidence supports the Commissioner’s decision, a reviewing
court generally must affirm. Studaway v. Sec’y of Health & Human Servs., 815
F.2d 1074, 1076 (6th Cir. 1987). However, where the ALJ failed to follow the
Social Security Act’s procedural regulations, the ALJ’s decision must be reversed

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even if the decision is supported by substantial evidence. Wilson v. Comm’r of
Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).
A 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, a reviewing court “is not required to articulate all the reasons it
rejects a party’s objections.” Id.
ANALYSIS
Under the authority of the Social Security Act, the Social Security
Administration established a five-step sequential evaluation process for
determining whether an individual is disabled. 20 C.F.R. § 404.1520(a)(4). If the
agency determines that the claimant is disabled or not disabled at a step, it need not
proceed further. Id. However, if the agency does not find that the claimant is
disabled or not disabled at a step, it 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 [Commissioner].” Preslar v. Sec’y of Health & Human Servs., 14
F.3d 1107, 1110 (6th Cir. 1994); see also Bowen v. Yuckert, 482 U.S. 137, 146 n.5
(1987).
In Plaintiff’s case, the doctrine of res judicata constrained ALJ Sloss’
application of the five-step sequential evaluation process because Plaintiff
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previously filed a claim for social security benefits for which she received a
partially favorable decision in March 2010. See Drummond v. Comm’r of Soc.
Sec., 126 F.3d 837, 842-43 (6th Cir. 1997) (holding that adjudicators must adopt
the final decision by an ALJ or the Appeals Council on a prior claim in
determining whether the claimant is disabled with respect to an unadjudicated
period absent new and material evidence). In that 2010 decision, the
Commissioner granted Plaintiff a closed period of disability from April 2, 2006
through February 2, 2008, finding that all of Plaintiff’s impairments (i.e., nonunion fracture of shoulder/collar bone and depression) were nonsevere after she
admittedly achieved medical improvement on the latter date. (A.R. at 114-121,
ECF No. 7-3 at Pg ID 138-45.) ALJ Sloss was required to follow the prior 2010
decision unless Plaintiff demonstrated by clear and convincing evidence that “her
condition so worsened in comparison to her earlier condition that she was unable to
perform substantial gainful activity.” Casey v. Sec’y of Health & Human Servs.,
987 F.2d 1230, 1232-33 (6th Cir. 1993).
Applying the five-step sequential evaluation process, ALJ Sloss first
considered whether Plaintiff was currently engaged in substantial gainful activity.
20 C.F.R. § 404.1520(a)(4)(i), (b). ALJ Sloss concluded that Plaintiff had not
engaged in substantial gainful activity during the relevant period—that is, from her
alleged onset date of March 16, 2010 through her date last insured of March 31,
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2011. (A.R. at 39, ECF No. 7-2 at Pg ID 62.) At the second step, ALJ Sloss
considered whether Plaintiff had a severe medically determinable physical or
mental impairment during the relevant period that met the duration requirement of
the regulations and significantly limited her ability to do basic work activities. 20
C.F.R. §§ 404.1520(a)(4)(ii) and (c). ALJ Sloss concluded that Plaintiff had the
following impairments through the date last insured: neuropathy in the left
shoulder, sacroiliitis, and depression. (A.R. at 40, ECF No. 7-2 at Pg ID 63.)
However, ALJ Sloss concluded that Plaintiff did not present evidence to show that
her impairments worsened since the 2010 disability decision to the point where
they significantly limited her ability to do basic work activities by her date last
insured. (Id.) ALJ Sloss therefore held that Plaintiff’s impairments were not
severe and she was not disabled under the Social Security Act from the alleged
onset date through the date last insured. (Id. at A.R. 40, 43, ECF No. 7-2 at Pg ID
63, 66.) As such, ALJ Sloss did not analyze the remaining three steps of the fivestep sequential process.1

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 At the third step, ALJ

Sloss would have again considered the medical
severity of Plaintiff’s impairments to determine whether the impairments met or
equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20
C.F.R. § 404.1520(a)(4)(iii), (d). If any of Plaintiff’s impairments met any Listing,
she would have been found disabled regardless of other factors. Id. At the fourth
step, ALJ Sloss would have assessed Plaintiff’s residual functional capacity
(“RFC”) and past relevant work to determine whether she could perform her past
relevant work. 20 C.F.R. § 404.1520(a)(4)(iv), (e). At the fifth step, ALJ Sloss
would have considered Plaintiff’s residual functional capacity, age, education, and
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In her thorough analysis, Magistrate Judge Davis rejects Plaintiff’s
challenges to ALJ Sloss’ decision. Magistrate Judge Davis first finds no error in
ALJ Sloss’ determination that Plaintiff failed to show a worsening in her shoulder
condition since the March 2010 disability decision, as she provided no objective
medical evidence demonstrating a deterioration of her shoulder within the relevant
period and the only medical evidence presented covered periods far outside her
period of eligibility for disability. (R&R at 18-19, ECF No. 17 at Pg ID 630-31.)
Magistrate Judge Davis concludes that ALJ Sloss correctly afforded little weight to
the medical source statement from Plaintiff’s treating physician because it
addressed Plaintiff’s condition as of January 2015 and the physician had not started
treating Plaintiff until 2014—well outside the relevant period for coverage. (Id.)
Although acknowledging that Plaintiff’s testimony supported a worsening of her
condition during the relevant period, Magistrate Judge Davis finds no error in ALJ
Sloss’ decision to find the testimony less than fully credible. (Id. at 19-21, ECF
No. 17 at Pg ID 631-33.) Finally, Magistrate Judge Davis rejects Plaintiff’s
argument that ALJ Sloss’ finding of two new impairments since the 2010 decision
(neuropathy in the left shoulder and sacroiliitis) demonstrated a change of

past work experience to see if she could do other work. 20 C.F.R.
§ 404.1420(a)(4)(v), (f). If there was no such work that Plaintiff could perform,
ALJ Sloss would have found her disabled. Id.

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circumstances sufficient to relieve Plaintiff from the res judicata effects of the prior
decision. (Id. at 22, ECF No. 17 at Pg ID 634.)
Plaintiff raises four objections to the R&R.
Objection #1
Plaintiff first objects to Magistrate Judge Davis’ conclusion that Plaintiff
failed to provide objective medical evidence showing a deterioration of her
shoulder condition within the relevant period. Plaintiff argues, as she did in her
motion for summary judgment, that a favorable decision can be rendered on a
remote onset date even when it may be difficult to establish the precise onset date.
Social Security Ruling 83-20 applies where the ALJ determines that the
claimant is disabled and the question arises as to when the disability arose. See
SSR 83-20, 1983 WL 31249. The Sixth Circuit has acknowledged, however, that
“this policy statement applies only when there has been a finding of disability and
it is necessary to determine when the disability began.” Key v. Callahan, 109 F.3d
270, 274 (6th Cir. 1997). Where there is no finding that the claimant is disabled,
“no inquiry into onset date is required.” Id. Here, ALJ Sloss did not find Plaintiff
disabled prior to the date last insured and thus Social Security Ruling 83-20 has no
bearing on her case.

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Objection #2
In her second objection, Plaintiff takes issue with ALJ Sloss’ evaluation of
the opinion from her treating physician, Dr. Ken Stiebel. Plaintiff contends that it
was error for ALJ Sloss to give little weight to Dr. Stiebel’s opinion because it
appeared to not address the relevant period. Plaintiff argues that this conclusion
was speculative.
Dr. Stiebel did not begin treating Plaintiff until January 2014, however,
nearly three years after the date last insured. (A.R. at 449-91, ECF No. 7-7 at Pg
ID 477-519.) Dr. Stiebel completed his medical source statement for Plaintiff in
January 2015. (A.R. at 530-34, ECF No. 7-7 at Pg ID -531-34.) There is nothing
in this statement to suggest that he was offering an opinion regarding Plaintiff’s
limitations prior to that date. As such, his opinion post-dates the benefits period.
It was not error for ALJ Sloss to refuse to extrapolate from Dr. Stiebel’s
opinion some other conclusion about Plaintiff’s condition during the relevant
period. See Siterlet v. Sec’y of Health & Human Servs., 823 F.2d 918, 920 (6th
Cir. 1987) (treating physician opinion rendered eight months after expiration of
insured status was minimally probative where the claimant suffered from
degenerative disorders); Swain v. Comm’r of Soc. Sec’y, 379 F. App’x 512, 517
(6th Cir. 2010) (indicating that the Sixth Circuit “has held that a treating
physician’s opinion is minimally probative when the physician began treatment
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after the expiration of the claimant’s insured status.”). In other words, ALJ Sloss
was not required to conclude from Dr. Stiebel’s opinion that Plaintiff must have
suffered the same impairments from her chronic conditions during the covered
period. Because his opinion did not address Plaintiff’s condition during her
insured status, the ALJ had “good reasons” for giving that opinion little weight.
Objection #3
Plaintiff contends in her third objection that substantial evidence did not
support ALJ Sloss’ credibility assessment.
As an initial matter, the Sixth Circuit has held that an ALJ is in the best
position to observe a witness’ credibility and to make an appropriate evaluation as
to her credibility. Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir.
1997). Thus, an ALJ’s credibility determination should not be disturbed “absent
compelling reason.” Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001). For the
reasons that follow, the Court concludes that Plaintiff does not provide a
compelling reason for rejecting ALJ Sloss’ credibility assessment.
First, the Court adopts Magistrate Judge Davis’ analysis of Plaintiff’s claim
of error based on ALJ Sloss’ consideration of the gaps in her medical treatment.
For the reasons set forth in Magistrate Judge Davis’ R&R (see R&R at 20-21, ECF
No. 17 at Pg ID 632-33), ALJ Sloss did not err in considering Plaintiff’s failure to
seek medical treatment for a significant period. Moreover, even if it was error for
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ALJ Sloss to consider the gaps in Plaintiff’s medical treatment, such error was
harmless because his credibility determination was based on at least three
additional factors: the lack of corroborating objective medical evidence in the
record, Plaintiff’s high capacity to independently complete her activities of daily
living, and Plaintiff’s admission during treatment in February 2013 that her
symptoms “suddenly increased” within the preceding six to eight months.
Plaintiff argues that ALJ Sloss’ reliance on her daily living activities “is not
well placed” because “[n]othing in the daily activities mentioned by the [ALJ]
suggest or show an ability to work 40 hours a week.” (Obj. at 3-4, ECF No. 18 at
Pg ID 640-41.) Regardless of whether Plaintiff’s daily activities reflect her ability
to work full-time, they are relevant to assessing her credibility regarding her
complaints of pain and limitations. In fact, the Social Security regulations
expressly require an ALJ to consider daily activities when assessing the claimant’s
credibility with respect to his or her pain and symptoms. See 20 C.F.R.
§ 404.1529(c)(3).
Plaintiff also argues that ALJ Sloss erred by finding her credibility
undermined by the entry in a 2013 medical record that her symptoms “suddenly
increased” within the preceding six to eight months where another statement in the
same record indicated that her pain related to her Bracial Plexis injury improved
after prior surgeries “until about 2 years ago.” (A.R. at 274, ECF No. 7-7 at Pg ID
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302.) The statement regarding Plaintiff’s improvement until about two years
earlier does not support that Plaintiff suffered the degree of pain she claimed prior
to her date last insured, however. In other words, while Plaintiff’s improvement
from surgery may have ceased two years earlier, this does not mean that her pain
or symptoms were severe at that point. As such, this entry does nothing to support
or undermine her credibility. That Plaintiff told her doctor she experienced a
sudden increase in left arm pain about six to eight months earlier, on the other
hand, does undermine her claim that she experienced severe pain prior to the date
last insured. For these reasons, the Court finds no error in ALJ Sloss’ treatment of
this medical record in evaluating Plaintiff’s credibility.
Objection #4
In her final objection, Plaintiff argues that the ALJ erred when he concluded
that she had two medically determinable impairments not found to exist at the time
of the March 2010 decision, but that they did not exist prior to her date last
insured. According to Plaintiff, these are chronic, degenerative conditions that
would have been present for some time before their diagnosis.
ALJ Sloss found from Plaintiff’s medical records that she was diagnosed
with sacroiliitis in 2008 and that she developed additional medically determinable
impairments “long after the date last insured.” (A.R. at 40, ECF No. 7-2 at Pg ID
63.) Absent evidence that these additional impairments existed prior to the
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expiration of Plaintiff’s eligibility for disability benefits and that they significantly
limited Plaintiff’s ability to perform basis work during that period, it was not error
for ALJ Sloss to conclude that they had no bearing on his res judicata analysis. In
other words, as discussed earlier, in order to avoid the previous adjudication that
she was not disabled, Plaintiff had to provide proof that her condition worsened
since the March 2010 decision to such a degree that she was no longer capable of
engaging in substantial gainful activity. Thus, regardless of whether Plaintiff
developed these medically determinable impairments prior to her date last insured
or after, the determining question is whether those impairments were severe.
Plaintiff failed to present clear and convincing evidence to show that they were.
CONCLUSION
For the reasons stated above, the Court rejects Plaintiff’s objections to
Magistrate Judge Davis’ August 18, 2017 2017 R&R and adopts the
recommendations in the R&R.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for summary judgment (ECF No.
10) is DENIED;
IT IS FURTHER ORDERED that Defendant’s motion for summary
judgment (ECF No. 14) is GRANTED;

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IT IS FURTHER ORDERED that Defendant’s decision denying Plaintiff’s
application for benefits under the Social Security Act is AFFIRMED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: September 15, 2017
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 15, 2017, by electronic and/or
U.S. First Class mail.
s/ R. Loury
Case Manager

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