Rottmann v. Social Security, Commissioner of

Filing 27

ORDER Adopting 22 Report and Recommendation. Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Joyce Rottman,
Plaintiff,

Case No. 18-cv-10912
Judith E. Levy
United States District Judge

v.
Nancy A. Berryhill, Acting
Commissioner of Social Security,

Mag. Judge David R. Grand

Defendant.
________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION [22]
Before the Court is Magistrate Judge David R. Grand’s Report and
Recommendation (“R&R”) (ECF No. 22) recommending that the Court
grant defendant Commissioner of Social Security’s (the “government”)
motion for summary judgment (ECF No. 19), deny plaintiff Joyce
Rottman’s (“Rottman”) motion for summary judgment (ECF No. 15), and
affirm the Administrative Law Judge’s (“ALJ”) decision. Rottman
submitted four objections to the R&R, (ECF No. 25), and the government
responded. (ECF No. 26.) For the reasons set forth below, Rottman’s
objections are overruled, and the R&R is adopted in full.

I.

Background
The Court has carefully reviewed the R&R and is satisfied that it is

a thorough account of the relevant portions of the record. The Court
incorporates the factual background from the R&R as if set forth herein.
II.

Legal Standard
A party may object to a magistrate judge’s report and

recommendation on dispositive motions, and a district judge must resolve
proper objections under a de novo standard of review. 28 U.S.C. §
636(b)(1)(B)–(C); Fed. R. Civ. P. 72(b)(1)–(3). “For an objection to be
proper, Eastern District of Michigan Local Rule 72.1(d)(1) requires
parties

to

‘specify

the

part

of

the

order,

proposed

findings,

recommendations, or report to which [the party] objects’ and to ‘state the
basis for the objection.’” Pearce v. Chrysler Group LLC Pension Plan, 893
F.3d 339, 346 (6th Cir. 2018). Objections that restate arguments already
presented to the magistrate judge are improper, Coleman-Bey v.
Bouchard, 287 F. App’x 420, 422 (6th Cir. 2008) (citing Brumley v.
Wingard, 269 F.3d 629, 647 (6th Cir. 2001)), as are those that dispute the
general correctness of the report and recommendation. Miller v. Currie,
50 F.3d 373, 380 (6th Cir. 1995).
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Moreover, objections must be clear so that the district court can
“discern those issues that are dispositive and contentious.” Id. (citing
Howard v. Sec’y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir.
1991)); see also Thomas v. Arn, 474 U.S. 140, 147 (1985) (explaining that
objections must go to “factual and legal” issues “at the heart of the
parties’ dispute”). In sum, Rottman’s objections must be clear and specific
enough that the Court can squarely address them on the merits. See
Pearce, 893 F. 3d at 346.
The Supreme Court recently articulated the standard the district
court must apply when conducting its de novo review. In Biestek v.
Berryhill, 139 S. Ct. 1148, 1154 (2019), the Court explained that the
phrase “substantial evidence” is a “term of art.” Id. (internal citations
omitted). “Under the substantial-evidence standard, a court looks to an
existing administrative record and asks whether it contains ‘sufficien[t]
evidence’ to support the agency’s factual determinations.” Id. (internal
citations omitted). “And whatever the meaning of ‘substantial’ in other
contexts, the threshold for such evidentiary sufficiency is not high.
Substantial evidence . . . is ‘more than a mere scintilla.’” Id. (internal
citations omitted). Specifically, “[i]t means—and means only—'such
3

relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Id. (internal citations omitted).
III.

Analysis
A.

Objection 1

In her first objection, Rottman argues that the ALJ did not properly
weigh the opinion of her endocrinologist, Dr. Ashish Verma. (ECF No. 25
PageID.1384.) Rottman’s first objection has three parts. She argues that
the ALJ: (1) “selectively chose” from the restrictions in Dr. Verma’s
opinion in determining the residual functional capacity (“RFC”) and
provided no reason for disregarding the other restrictions (Id. at
PageID.1386); (2) provided unpersuasive reasons for giving little weight
to Dr. Verma’s opinion (Id. at PageID.1388, 1390–1395); and (3)
impermissibly substituted his own medical judgment for that of Dr.
Verma’s (Id. at PageID.1389.).
Dr. Verma is an endocrinologist who has been treating Rottman
since 2006. (Tr. 818.) He completed two nearly-identical medical source
statements on July 27, 2016 and October 17, 2016, with the only
difference between them being that, in the later-dated statement, he
indicated that his medical findings and limitations were present since
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June 2014, which was not included in his earlier statement. (Tr. 818–19;
1195–96.) Dr. Verma opined that Rottman’s symptoms of diabetic
neuropathy included sensory changes in both her hands and feet, reflex
changes in her feet, grip strength weakness in both hands, pain in her
feet and hands, and loss of vibration sense. (Tr. 818.) He also noted that
Rottman could sit for up to four hours, and stand/walk for one hour. (Id.)
He stated that she could lift or carry five pounds for up to one-third of an
eight-hour work day, and that she would need breaks every one to two
hours to check her blood sugar. (Tr. 819.) He also stated that she would
be able to occasionally use her extremities for simple grasping and
reaching, but never for pushing/pulling, fine manipulating, or foot/leg
controls. (Id.) He also noted that, while engaging in occasional standing
or walking, Rottman should use a cane because she has “neuropathy legs
with poor balance.” (Id.)
In his decision, the ALJ considered Dr. Verma’s opinions, and, while
the ALJ did “not contest that [Rottman] has peripheral neuropathy,” he
concluded that “this condition has been accommodated by limiting her
work at the light exertional level, restricting her use of bilateral foot
controls to occasional, and precluding her from work around unprotected
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heights and moving, mechanical parts.” (ECF No. 11-2 at PageID.54.) He
also noted that, as to her hands, Rottman’s “reduced grip strength that
is noted by Dr. Verma has also been accounted for with the limitation
that she have only occasional use of bilateral hand controls and that she
occasionally handle, finger, and feel with her bilateral upper
extremities.” (Id.)
The ALJ also analyzed Dr. Verma’s treatment notes and found
certain inconsistencies between Dr. Verma’s treatment notes and his
opinion set forth above. Specifically, a physical examination conducted
on September 9, 2015 indicated that Rottman had 5/5 muscle strength in
all muscles. (Tr. 1057.) Further, her medical records show 5/5 muscle
strength with normal coordination and normal gait and station on
multiple visits to Dr. Verma. (See, e.g., Tr. 412, 417, 421, 424, 428, 432,
506.) The ALJ also noted Rottman’s own “self-reported activities of
sewing, crocheting, weaving, preparing meals, doing laundry and dishes,
participating in war reenactments, riding her motorcycle, and mowing
her yard.” (ECF No. 11-2 at PageID.54. (and see Tr. 66–70, 72, 78, 80,
248–255.)) Her husband, Ronald Rottman, also submitted a function
report, which indicated that Rottman did laundry, housekeeping, cut the
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grass weekly, cleaned the house between one and four hours per day,
shopped for groceries, and cooked meals daily. (Tr. 261–268). She also
sewed, crocheted, played computer games, and sent text messages. (Id.)
In reconciling both Dr. Verma’s opinion and the record evidence, the ALJ
concluded that, “Dr. Verma’s opinion is too restrictive.” (ECF No. 11-2 at
PageID.54.) He reasoned that her activities “show [Rottman’s]
functioning is not limited to the extent one would expect given the
complaints of disabling symptoms… For these reasons, I afford Dr.
Verma’s opinion little weight.” (Id. at PageID.55.)
Rottman’s first argument in objection one – that the ALJ
“selectively chose” from the restrictions in Dr. Verma’s opinion when
determining the RFC and provided no reason for disregarding the other
restrictions recommended by Dr. Verma– must be denied. (ECF No. 25,
PageID.1386.) As Rottman acknowledges in her objections, it is well
established that an ALJ is not required to discuss “each and every” piece
of evidence in the record for his decision to stand. (Id. at PageID.1387
(citing Moretti v. Colvin, No. 13-01344, 2014 U.S. Dist. LEXIS 957, *27–
28 (N.D. Ohio, Jan. 6, 2014) (quoting Thacker v. Comm’r of Soc. Sec., 99
Fed. App’x 661, 665 (6th Cir. 2004))). However, when the ALJ’s RFC
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finding conflicts with the opinion of a medical source, the ALJ must
explain why the opinion was not adopted. Moretti, No. 13-01344, 2014
U.S. Dist. LEXIS at *28 (citing SSR 96-8p, 1996 SSR LEXIS 5, *20, 1996
WL 374184, *7 (July 2, 1996)).
Here, as set forth above, the ALJ addressed the reason why his RFC
finding did not fully adopt all of Dr. Verma’s opinions. Specifically, he
addressed the consistency and inconsistency of

Dr. Verma’s opinion

with Dr. Verma’s own medical evidence in the record, as well as
Rottman’s daily functions and activities. The ALJ did not fail to resolve
a conflict in evidence, but rather resolved it unfavorably to Rottman. As
the R&R correctly lays out in detail, the ALJ’s findings were supported
by significantly more than “a mere scintilla” of evidence. Biestek, 139 S.
Ct. at 1154. Further, the ALJ’s justification for giving Dr. Verma’s
opinion little weight “permits the claimant and a reviewing court a clear
understanding of the reasons for the weight given [to the doctor’s]
opinion.” Francis v. Comm’r Soc. Sec. Admin., 414 F. App’x 802, 805 (6th
Cir. 2011). Thus, Rottman’s first argument is overruled.
Rottman’s second argument in her first objection comes down to a
request that this Court reweigh Dr. Verma’s opinion evidence. Rottman
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argues that the ALJ’s reasons for according Dr. Verma’s opinion little
weight are unpersuasive because: (1) the ALJ should not have considered
Dr. Verma’s treatment notes as evidence against his medical source
statement; and (2) the ALJ failed to consider the way Rottman engaged
in the activities of daily living (such as, for example that she rides a threewheeled motorcycle with a push-button starter, rather than a twowheeled motorcycle with a kick starter).
In outlining this portion of her objection, Rottman argues that the
record could also have supported a favorable finding. But, as the R&R
explained, an ALJ’s decision can be supported by substantial evidence
even where substantial evidence may also support the opposite
conclusion. (ECF No. 22, PageID.1373); See Engebrecht v. Comm’r of Soc.
Sec., 572 F. App’x 392, 396 (6th Cir. 2014) (quoting Cutlip v. Sec’y of
Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (“if the ALJ’s
decision is supported by substantial evidence, it must be affirmed even if
the reviewing court would decide the matter differently, and even if
substantial

evidence

also

supports

the

opposite

conclusion.”))

Additionally, it is entirely appropriate for an ALJ to compare a medical
source statement to the physician’s own treatment notes. Indeed, a
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physician’s treatment notes are relevant evidence and an ALJ’s failure to
consider them may result in remand. See Gayheart v. Comm’r of Soc. Sec.,
710 F.3d 365, 378–79 (6th Cir. 2013).
Here, as set forth above, the ALJ justified his factual findings with
a detailed examination of the record, and a reasonable person could find
that the ALJ’s opinion was supported by substantial evidence. Biestek,
139 S. Ct. at 1154. For example, the ALJ reasonably found that
Rottman’s crocheting and weaving activities necessarily require a degree
of fine manipulating, even though Dr. Verma indicated that Rottman
would not be able to perform fine manipulation. Additionally, Rottman’s
evidence showed that she played computer games, texted, and cooked,
which also require a degree of fine manipulation. And Rottman’s
motorcycling activities, though performed on a three-wheeled motorcycle
with a push-button starter, also require some degree of balance and
coordination, which is inconsistent with Dr. Verma’s indication that she
had “poor balance.”

The ALJ’s determination to afford Dr. Verma’s

opinion “little weight” therefore is supported by substantial evidence, and
the Court cannot reweigh it. In conclusion, Rottman’s second argument
in her first objection is overruled.
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Rottman’s final argument in support of her first objection, that the
ALJ impermissibly substituted his medical judgment for that of Dr.
Verma’s when he determined the effect of her peripheral neuropathy in
her RFC, cannot be considered. “A claim raised for the first time in
objections to a magistrate judge’s report is deemed waived.” Swain v.
Comm’r of Soc. Sec., 379 F. App’x 512, 518 (6th Cir. 2010) (citing Ward v.
United States, 208 F.3d 216, 216 (6th Cir. 2000)). And this argument
would not succeed even if it had not been waived. It is well-settled law
that an ALJ’s RFC determination need not be supported by a physician’s
opinion. See Mokbel-Aljahmi, 732 F. App’x at 400–401 (citing cases). It
was therefore permissible for the ALJ to deviate from Dr. Verma’s
opinion based upon the record before him. Id. Therefore, Rottman’s last
argument in her first objection is overruled.
B.

Objection 2

Rottman’s second objection is that the ALJ failed to provide “even
one iota of record evidence” in support of his decision to assign little
weight to the opinion of Dr. Ennes.1 (ECF No. 25, PageID.1396–97.) For

It appears that the government understood Rottman’s second objection to be
that the ALJ did not provide specific pin citations to the record. (ECF No. 26,
PageID.1413). But a closer look at Rottman’s objection indicates that her argument
1

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instance, she argues that the ALJ’s failure to discuss any of the testimony
about her level of difficulty, level of pain, accommodations, and
limitations when engaged in the cited activities of daily living render his
conclusions improper.
Dr. Diana Ennes, M.D. is Rottman’s orthopedic physician. (Tr.
1240.) Dr. Ennes provided two medical source statements that are nearly
identical, except that her second medical source statement states that
her findings have been present since at least June 2014, which is not
present in her first statement. (Tr. 821, 1240.) Her medical source
statement provides Rottman’s diagnoses as multiple trigger fingers, De
Quervains, and shoulder/tendon bursitis. (Id.) She noted that Rottman
has reduced range of motion in her fingers, neuropathy, muscle weakness
in both shoulders, reduced grip strength in both hands, experiences pain

goes further and will be addressed as such as set forth above. However, to the extent
that Rottman’s second objection merely regards the ALJ’s use of specific pin cites to
the record, the Court agrees with the R&R’s handling of this issue and adopts it here.
The R&R states, “[w]hile the ALJ did not include precise citations to the record in his
discussion of Dr. Ennes’ opinion, (Tr. 19), he did specify the activities that he found
belied Dr. Ennes’ opinion (id.), and earlier in his decision the ALJ provided citations
for those activities. (See Tr. 15 (noting that Rottman ‘does laundry and dishes, weaves
on a loom, knits, crochets, sews, cooks, complete meals, and is able to use a riding
lawn mower to cut the grass,’ ‘rid[es] her motorcycle,’ ‘participates in reenactments
of the French and Indian wars,’ and ‘sews, knits, crochets, and weaves.’” (internal
citations omitted).

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in her right knee and both shoulders, and swelling in her fingers. (Id.)
Notably, Dr. Ennes’s report left a portion blank where the form would
have had her indicate whether Rottman needs an option to take
unscheduled breaks if placed in a competitive eight-hour work day, or
whether she has any sitting or standing limitations. (Id.)
The ALJ considered Dr. Ennes’s statement and stated, “[a]gain,
[Rottman’s] self-reported activities of sewing, knitting, crocheting,
playing video games, cooking, and doing laundry and dishes shows she
has the ability to at least occasionally handle, finger, and feel with her
bilateral upper extremities despite these conditions. Accordingly, I afford
Dr. Ennes’s opinion little weight.” (Tr. 21.)
Despite not discussing the specific limitations Rottman cites in her
objection, the ALJ did not err. As set forth above, the ALJ was not
required to cite every piece of evidence. And the ALJ’s analysis gave “good
reasons” which are “supported by evidence in the case record” for his
decision to afford little weight to Dr. Ennes’s opinion. Gayheart v. Comm’r
of Soc. Sec., 710 F.3d 365, 380 (6th Cir. 2013). For example, he listed the
activities that conflict with Dr. Ennes’s conclusions. A reasonable person
could accept as adequate that the evidence of sewing, knitting,
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crocheting, cooking, riding a motorcycle – even considering restrictions
and limitations –cast doubt on Ennes’s assertion that Rottman was
unable to engage in “even occasional simple grasping, pushing, and
pulling.” (ECF No. 11-2, PageID.55.) Hence, the ALJ’s ruling is supported
by substantial evidence in the record and Rottman’s second objection is
overruled.
C. Objection 3
Rottman’s third objection concerns the weight given to the opinions
of nurse practitioner (“NP”) Phillip Sweet and George Pestrue, Ph.D.
(ECF No. 25, PageID.1398–99.) As to NP Sweet, Rottman argues that the
ALJ should have considered him a “treating source” under the Social
Security regulations and his failure to do so was improper. As to Dr.
Pestrue, Rottman argument is not well-developed, but the Court
understands it as an objection to the weight the ALJ gave to Dr. Pestrue’s
opinion and will address it as such.
NP Sweet treated Rottman for bipolar disorder and emotional
issues every six to eight weeks for two years. (Tr. 814–17.) He opined that
she suffered from, among other things, marked limitation in her ability
to: understand, remember, and carry out detailed instructions; maintain
14

attention and concentration for extended periods; perform activities
within a schedule; maintain regular attendance; be punctual within
customary tolerances; sustain an ordinary routine without supervision;
work in coordination with or proximity to others without being distracted
by them; complete a normal work day without interruptions from
psychologically based symptoms; accept instructions and respond
appropriately to criticism from supervisors; and get along with others.
(Id.)
The ALJ afforded NP Sweet’s opinion “little weight, as it is not in
line with the evidence of record” because, throughout her treatment
records, Rottman reported that her mental health was improving. (ECF
No. 11-2, PageID.55.) He also rejected NP Sweet’s evaluation of
Rottman’s physical impairments because they were also “not generally in
line with record evidence.” (Id.) The ALJ explained his decision for
affording NP Sweet’s opinion little weight, and a reasonable person could
accept these conclusions as adequate. Biestek, 139 S. Ct. at 1154.
Further, Dr. Pestrue, an agency evaluating psychologist, opined
that Rottman’s “unstable blood sugar would make it difficult for her to
maintain a regular job.” (Tr. 404.) But Dr. Pestrue is not a medical doctor,
15

and the ALJ used his discretion to afford Dr. Pestrue’s opinion “some
weight to the extent it shows [Rottman’s] mental impairments impact her
social functioning.” (ECF No. 11-2, PageID.56.) The ALJ also addressed
the limitations recommended by Dr. Pestrue when the ALJ “restrict[ed]
her only to occasional interaction with supervisors and coworkers and no
interaction with the general public.” (Id.)
Rottman argues that the ALJ should have considered Dr. Pestrue
and NP Sweet’s opinions as “other relevant factors” under 20 C.F.R.
404.1527(c)(6) (“§1527”). Section 1527 analysis applies to treating and
medical source opinions. A nurse practitioner is not considered a
“treating medical source” under 20 C.F.R. § 404.1513, but instead is listed
under “other [nonmedical] sources.” Cruse v. Comm’r of Soc. Sec., 502
F.3d 532, 541 (6th Cir. 2007). Under § 1527, when weighing opinion
evidence from an “other source,” the ALJ need not apply the §1527 factors
that would be applied for treating or medical source physician. See
§1527(f). And in the Sixth Circuit, “an ALJ has discretion to determine
the proper weight to accord opinions from “other sources” such as nurse
practitioners.” Cruse, 502 F.3d at 541 (internal citations omitted). The
ALJ’s analysis and decision not to strictly apply the §1527 factors to NP
16

Sweet and Dr. Pestrue, as set forth above, passes the “good reasons” test
and is supported by substantial evidence. See Gayheart, 710 F.3d at 380.
Accordingly, Rottman’s third objection is overruled.
D. Objection 4
In her final objection, Rottman argues that the Court should
reverse the ALJ’s decision, find her disabled, and issue a remand for an
immediate award of benefits. Because the Court is adopting the R&R
upholding the ALJ’s determination in full for the reasons stated above,
this objection is overruled as moot.
IV.

Conclusion
Rottman’s objections (ECF No. 25) are overruled. Accordingly, the

Report and Recommendation (ECF No. 22) is ADOPTED, the
government’s motion for summary judgment (ECF No. 19) is
GRANTED, and Rottman’s motion for summary judgment (ECF No. 15)
is DENIED.
IT IS SO ORDERED.
Dated: August 22, 2019
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

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