Wiggins v. Social Security

Filing 17

OPINION AND ORDER Adopting the factual findings in 15 Report and Recommendation and Rejecting the legal conclusions; Granting 12 Motion for Summary Judgment; and Denying 11 Motion for Summary Judgment, Signed by District Judge Judith E. Levy. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Tiffany J. Wiggins,
Plaintiff,
v.
Commissioner of Social Security,
Defendant.

Case No. 19-13317
Judith E. Levy
United States District Judge
Mag. Judge David R. Grand

________________________________/
OPINION AND ORDER ADOPTING THE FACTUAL FINDINGS
BUT REJECTING THE LEGAL CONCLUSIONS IN THE
REPORT AND RECOMMENDATION [15], SUSTAINING
THE GOVERNMENT’S OBJECTIONS [16], GRANTING THE
GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT [12],
AND DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT [11]
Before the Court is Magistrate Judge David R. Grand’s Report and
Recommendation (“R&R”) (ECF No. 15) recommending that the Court
deny Defendant Commissioner of Social Security (the “Government”)’s
motion for summary judgment, (ECF No. 12), grant Plaintiff Tiffany
Wiggins’ motion for summary judgment, (ECF No. 11), and remand this
case for further proceedings before the Administrative Law Judge

(“ALJ”). Defendant submitted two objections to the R&R. (ECF No. 16.)
Plaintiff did not respond.
For the reasons set forth below, both of the Government’s objections
are SUSTAINED. The Court ADOPTS the factual findings in the Report
& Recommendation and REJECTS the legal conclusions. The Court
GRANTS the Government’s motion for summary judgment and DENIES
Plaintiff’s motion for summary judgment.
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 factual and
procedural background from the R&R are incorporated as if fully 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
2

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) (internal citations omitted). Objections that
restate arguments already presented to a 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

merely

the

general

correctness

of

the

report

and

recommendation. Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995).
The Supreme Court recently addressed 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
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relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Id. (internal citations omitted).
III. Analysis
The Government lodges two objections to Judge Grand’s R&R:
1) At step two, Magistrate Judge Grand improperly
reweighed the evidence to conclude that substantial
evidence contradicted the ALJ’s step-two finding that
Plaintiff’s carpal tunnel syndrome (CTS) was a non-severe
impairment; and
2) At step two, Magistrate Judge Grand erred in finding that
the ALJ insufficiently discussed Plaintiff’s CTS in
determining her Residual Function Capacity (RFC).
(ECF No. 20.) For the reasons below, these objections are SUSTAINED.
Objection 1
The

Government’s

first

objection

is

that

Judge

Grand

impermissibly reweighed the evidence in concluding that the ALJ’s steptwo CTS determination was not based on substantial evidence. (ECF No.
16, PageID.1642.)
In determining whether an individual is “disabled” within the
meaning of the Social Security Act, the ALJ must perform the following
five-step sequential analysis:

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Step One: If the claimant is currently engaged in substantial
gainful activity, benefits are denied without further analysis.
Step Two: If the claimant does not have a severe impairment
or combination of impairments that “significantly limits . . .
physical or mental ability to do basic work activities,” benefits
are denied without further analysis.
Step Three: If the claimant is not performing a substantial
gainful activity, has a severe impairment that is expected to
last for at least twelve months, and the severe impairment
meets ore quals one of the impairments listed in the
regulations, the claimant is conclusively presumed to be
disabled regardless of age, education, or work experience.
Step Four: If the claimant is able to perform his or her past
relevant work, benefits are denied without further analysis.
Step Five: Even if the claimant is unable to perform his or
her past relevant work, if other work exists in the national
economy that the claimant can perform, in view of his or her
age, education, and work experience, benefits are denied.
Scheuneman v. Comm’r of Soc. Sec., No. 11-10593, 2011 WL 6937331, at
*7 (E.D. Mich. Dec. 6, 2011) (citing 20 C.F.R. § 404.1520).
In this case, the ALJ found at step two that Plaintiff’s CTS was not
a severe impairment. In his R&R, Judge Grand recommended that the
Court reverse this determination. (ECF No. 15, PageID.1628.) In its
objection, the Government argues that Judge Grand placed improper
weight on Plaintiff’s own subjective reports, as well as on the medical
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opinions of Dr. Lerner and Dr. Jankowski, in concluding that there was
not substantial evidence to support a finding that CTS is a non-severe
impairment. The ALJ’s finding as to the carpal tunnel diagnosis is as
follows:
Dr. Lerner conducted a nerve conduction study on December
18, 2014 of the claimant’s upper extremities, which showed
mild bilateral carpal tunnel syndrome (Exhibits 2F, pg. 21
and 15F, pg. 71) . . . [this] additional impairment do[es] not
significantly limit the claimant’s ability to perform basic work
activities as required by SSR 85-28. Thus, the undersigned
finds these additional alleged impairments are nonsevere.”
(ECF No. 9-2, PageID.47.)
In concluding that this finding was not supported by substantial
evidence, Judge Grand found the following:
First, the ALJ fails to note that, in the December 2014 nerve
conduction study she cites, physical therapy and analgesic
medications are recommended, as well as a neurosurgical
consultation. (Tr. 405). It is hard to imagine that surgery
would be contemplated if Wiggins’ CTS did not significantly
limit her physical ability to perform basic work activities. See
20 C.F.R. § 404. 1520(c). Indeed, on July 22, 2015, when
Wiggins continued to complain of hand and wrist pain, Dr.
Lerner prescribed bilateral wrist splints to address her CTS.
(Tr. 418-19). She also issued a Disability Restriction Letter
that same day, indicating that Wiggins should not lift over
five pounds and should not engage in pushing, pulling, or
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repetitive gripping until August 19, 2015, because of her CTS.
(Tr. 420). These restrictions continued over time (E.G., Tr.
425).
Moreover, in addition to this nerve conduction study—which
showed diagnostic evidence of CTS—and the prescribed
bilateral wrist splints, the record is replete with other
evidence that Wiggins’ CTS causes pain, cramping,
numbness, and tingling in both hands, which would
undoubtedly interfere with her ability to lift, push, pull,
reach, carry, and handle. (E.g., Tr. 492 (“numbness in hands”
in 2015); Tr. 808, 815 (weakness, numbness, and tingling in
bilateral hands in 2015); Tr. 822, 824, 826 (positive Tinel’s
sign in 2015); Tr. 585-86 (at a new patient appointment with
Violette Henein, M.D. in December 2015, numbness and
tingling reported in the bilateral hands and resting tremor
observed in the right hand); Tr. 579, 582 (pain, numbness, and
tingling in the bilateral hands in early 2016)).
On April 20, 2016, one of Wiggins’ treating physicians, David
Jankowski, D.O., completed a Medical Assessment of Ability
to Do Work Related Activities (Physical). (Tr. 506-09).
Although the ALJ referenced Dr. Jankowski’s opinion
regarding lifting, carrying, standing, and walking (Tr. 21), she
made no mention at all of Dr. Jankowski’s opinion that
Wiggins has significant limitations with reaching, handling,
and fingering, and could never perform any of these activities
(Tr. 507). Throughout 2016, Wiggins continued to report
numbness, tingling, pain, and burning in her bilateral hands.
(Tr. 516, 576, 792, 837, 839, 1000). And, at times that year,
she had swelling and/or reduced strength in the bilateral
hands, as well as decreased sensation over the thumb to light
touch bilaterally and a resting tremor in her right (dominant)
hand. (Tr. 518, 524, 570, 576, 1000, 1258). The same was true
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throughout 2017 and 2018. (Tr. 1004, 1009-10, 1014, 1017,
1020, 023, 1236, 1277, 1282, 1305, 1333, 1340, 1352, 1371-72,
1404). As set forth above, then, the ALJ’s finding that
Wiggins’ CTS does not create more than de minimis workrelated limitations is contradicted by significant portions of
the record.
(ECF No. 15, PageID.1632-1634.)
In its first objection, the Government argues that the findings above
constitute an improper re-weighing of the record evidence. The Court
agrees. While the Court must “take into account whatever in the record
fairly detracts from [the] weight” of the Commissioner’s decision, TNS,
Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting Universal
Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)), “if substantial
evidence supports the ALJ’s decision, this Court defers to that finding
‘even if there is substantial evidence in the record that would have
supported an opposite conclusion.’” Blakley v. Comm’r of Soc. Sec., 581
F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d 270, 273
(6th Cir. 1997)). Ultimately, the ALJ’s decision “cannot be overturned if
substantial evidence, or even a preponderance of the evidence, supports
the claimant’s position, so long as substantial evidence also supports the

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conclusion reached by the ALJ.” Jones v. Comm’r of Soc. Sec., 336 F.3d
469, 477 (6th Cir. 2003).
Judge Grand’s decision relies heavily on the medical findings and
opinions of Drs. Jankowski and Lerner. However, the ALJ also addressed
these findings and provided reasons for discounting them. The ALJ’s
opinion summarizes the objective medical and opinion-based findings of
both Dr. Jankowski and Dr. Lerner, and assigns them little weight for
the following reason:
The undersigned finds the disability opinions from both Dr.
Lerner and Dr. Jankowski are finite and both infringe on the
area of disability reserved to the Commissioner of Social
Security under 20 CFR §§ 404.1527(d). Therefore, the
undersigned assigns no weight to these treating source
opinions. As to the balance of Dr. Lerner’s and Dr.
Jankowski’s treating source opinions dealing with functional
limitations, the undersigned gives them little weight because
they are not consistent with their own treatment records.
Furthermore, the undersigned finds Dr. Jankowski’s
extensive limitations are not supported by the conservative
longitudinal treatment history and mild objective findings,
outlined above.

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(ECF No. 9-2, PageID.53.) Additionally, other medical evidence in the
record discounts the findings of Drs. Jankowski and Lerner.1 For
example, state agency physician Dr. Langham’s expert opinion evaluated
Plaintiff’s EMG study, a variety of her subjective hand/arm complaints,
exam reports, and various disability certificates, and concluded that
Plaintiff had no manipulative limitations.2 (ECF No. 9-2, PageID.125126.)

The Government additionally argues that Dr. Lerner and Dr. Jankowski’s
reports are suspect because the two doctors were subsequently indicted for various
medical malpractices and have both since had their medical licenses suspended.
Specifically, the Government argues that Dr. Lerner was “convicted of health care
fraud in this district in 2016” for, “between 2008 and 2015 . . . lur[ing] patients to his
clinic with prescriptions for unnecessary controlled substances; knowingly
provid[ing] false statements to Medicare about the services he provided; and
conduct[ing] unnecessary office visits and tests.” (ECF No. 16, PageID.1645-1646.) As
to Dr. Jankowski, the Government argues that “Dr. Jankowski was indicted in this
district on June 7, 2017, on counts of conspiracy to distribute controlled substances
and attempt and conspiracy to commit health care fraud.” (Id. at PageID.1649.)
The Government argues that affirming Judge Grand’s opinion would
potentially render remand futile because “the ALJ would have discretion to consider
[the doctors’] records and opinions under one of the enumerated ‘good cause’
exceptions, but only if there were no reason to believe that fraud was involved in the
production of that evidence.” (Id. at PageID. 1646-1647.)
However, the Court need not analyze the impact of this argument or speculate
on the futility of a remand, because the Court sustains both of the Government’s
objections for the reasons above.
2 As the Government acknowledges, the ALJ did not formally adopt Dr.
Langham’s expert opinion because more recent evidence supported an exertional
limitation to sedentary work. (See ECF No. 9-2, PageID.52 (“the consultant did not
consider evidence submitted at the hearing level, which requires a sedentary residual
1

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As to Plaintiff’s subjective reports of pain, the ALJ did not find them
to be borne out by the objective medical evidence. “A subjective allegation
of disabling symptoms alone is insufficient; the claimant must
substantiate the symptoms by objective clinical or lab findings.” Kornecky
v. Comm’r of Soc. Sec., 167 Fed. Appx. 496, 498 (6th Cir. 2006).
Regardless, the ALJ did take Plaintiff’s subjective reports into
consideration at a later point in the opinion when she concluded that
Plaintiff did indeed have mild bilateral CTS that caused some limitation
in her movement: “with that right dominant upper extremity, [Plaintiff]
could use it for grasping or gross manipulation and fingering or fine
manipulation but only on a frequent basis but not a constant basis.” (ECF
No. 9-2, PageID.48.) See Bradford v. Sec’y of Health & Human Servs., 803
F.2d 871, 873 (6th Cir. 1986) (the ALJ’s decision should be read as a
whole).
To be clear: the severity of Plaintiff’s CTS is a close case. And the
Court agrees with Judge Grand that substantial evidence exists to
support the position that Plaintiff’s CTS is a severe manipulative
functional capacity, as noted above”).) However, Dr. Langham’s conclusion that there
were no manipulative limitations bolsters the ALJ’s compatible conclusion and
independent discounting of the contrary medical evidence.

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limitation. However, substantial record evidence also exists to support
the contrary position reached by the ALJ, and accordingly the Court must
affirm. Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009)
(“if substantial evidence supports the ALJ’s decision, this Court defers to
that finding ‘even if there is substantial evidence in the record that would
have supported an opposite conclusion”).
Accordingly, the Government’s first objection is SUSTAINED.
A. Objection 2
The Government’s second objection argues that Magistrate Judge
Grand erred in finding that the ALJ insufficiently discussed Plaintiff’s
CTS in determining her RFC. (ECF No. 15, PageID.1656.)
The ALJ’s findings as to the CTS in the RFC were as follows:
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform sedentary work as defined in
20 CFR 404.1567(a) except . . . with that right dominant upper
extremity, she could use it for grasping or gross manipulation
and fingering or fine manipulation but only on a frequent
basis but not on a constant basis.
…
The undersigned further finds the claimant could use her
right dominant upper extremity for grasping or gross
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manipulation and fingering or fine manipulation but only on
a frequent basis so not a constant basis supported by a normal
physical examination report (Exhibit 25F, pg. 25). On
January 12, 2018, Dr. Bitkowski noted she had normal range
of motion of the upper extremities with 5/5 strength and no
gross abnormalities (Exhibit 25F, pg. 25).
(ECF No. 9-2, PageID.48, 52.) In determining that this discussion was
insufficient, Judge Grand concluded the following:
[W]hile the ALJ did in fact consider the effects of [Plaintiff’s]
CTS on her RFC (Tr. 19), the ALJ’s analysis and ultimate
conclusion in this respect are not supported by substantial
evidence because the ALJ failed to discuss significant
competing record evidence regarding [Plaintiff’s] CTS.
...
The problem with the ALJ’s analysis, however, is that she
relies on a single page from a record in excess of 1500 pages
to support her finding as to [Plaintiff’s] abilities to perform
fine and gross manipulation. Despite all of the other evidence
discussed above—including EMG evidence of bilateral CTS; a
prescription for wrist splints; numerous references to a
resting tremor in the right hand; numerous reports of pain,
cramping, numbness, and tingling in both hands over a period
of several years; findings of decreased strength; decreased
sensation over the thumb to light touch bilaterally; and a
positive Tinel’s sign—the ALJ simply failed to discuss, let
alone meaningfully weigh, these findings in favor of a single
note from one visit to a physician in early 2018. Moreover, the
Court notes that, in April 2016, Dr. Jankowski opined that
[Paintiff] has significant limitations with reaching, handling,
and fingering, and could never perform any of these activities
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(Tr. 507). The Court also notes that at the hearing, it was
noted that Wiggins’ right hand was trembling, and she
testified that it was like that ‘constantly’ and caused her to be
‘very clumsy’ when using it. (Tr. 46-47). Considering all of this
evidence, the ALJ’s reliance on a single note in which one
doctor found normal strength and range of motion in the
upper extremities (Tr. 1323) does not allow the Court to
conclude that the ALJ’s incorporation of [Plaintiff’s] CTS into
her RFC is supported by substantial evidence . . . . Rather, a
thorough and even weighing of the competing evidence by the
ALJ is required to develop a proper RFC.
(ECF No. 15, PageID.1636-1637.)
When making an RFC determination in which a severe impairment
is found, “the combined effects of all impairments must be considered,
even if other impairments would not be severe.” White v. Comm’r of Soc.
Sec., 312 Fed. Appx. 779, 787 (6th Cir. 2009). Additionally, it is well
established that an ALJ need not discuss every treatment note to show
it was considered. Kornecky, 167 Fed. Appx. at 508 (“[A]n ALJ can
consider all the evidence without directly addressing in his written
decision every piece of evidence submitted by a party. Nor must an ALJ
make explicit credibility findings as to each bit of conflicting testimony,
so long as h[er] factual findings as a whole show that [s]he implicitly

14

resolved such conflicts.”) (citing Loral Defense Systems-Akron v. N.L.R.B.,
200 F.3d 436, 453 (6th Cir. 1999)).
The Government’s objection is sustained because the ALJ’s opinion
demonstrates that she took into consideration the relevant objective and
subjective medical testimony regarding Plaintiff’s CTS. As set forth
above, substantial evidence supports the ALJ’s determination regarding
the severity of Plaintiff’s CTS and the medical impact that it has on
Plaintiff’s RFC. It is clearly established that the ALJ need not repeat her
explicit findings during the RFC discussion if those findings appear
elsewhere in the opinion. See Bradford, 803 F.2d at 873 (the ALJ’s
decision should be read as a whole).
Accordingly, the Government’s second objection is SUSTAINED.
IV.

Conclusion

For the reasons set forth above, the Government’s objections (ECF
No. 16) are sustained. Accordingly, the factual findings in the Report and
Recommendation (ECF No. 15) are ADOPTED, the legal conclusions in
the Report and Recommendation are REJECTED, the Government’s
motion for summary judgment (ECF No. 12) is GRANTED, and
Plaintiff’s motion for summary judgment (ECF No. 11) is DENIED.
15

IT IS SO ORDERED.
Dated: March 31, 2021
Ann Arbor, Michigan

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

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on March 31, 2021.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager

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