Smith v. Commissioner of Social Security

Filing 15

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 13 ; affirming the final decision of the Commissioner of Social Security denying plaintiff's claim for disability insurance benefits and supplemental security income benefits ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

RICHARD T. SMITH,
Plaintiff,
File No. 1:10-CV-14
v.
HON. ROBERT HOLMES BELL
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
MEMORANDUM OPINION AND ORDER ADOPTING
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This action comes before the Court on Plaintiff Richard T. Smith’s objections to the
Magistrate Judge’s June 3, 2011, Report and Recommendation (“R&R”) recommending that
the final decision of the Commissioner of Social Security denying Plaintiff’s claims for
disability insurance benefits (“DIB”) and supplemental security income benefits (“SSI”) be
affirmed. (Dkt. No. 13, R&R; Dkt. No. 14, Obj.) This Court is required to make a de novo
review upon the record of those portions of the R&R to which objection has been made. 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Plaintiff, through counsel, has raised four objections to the R&R. Plaintiff’s first
objection is that the administrative law judge (“ALJ”) did not give sufficient weight to
Plaintiff’s low Global Assessment of Function (“GAF”) scores in assessing whether Plaintiff

met or equaled Listing 12.04 and that the Magistrate Judge was also too cavalier in his
dismissal of the GAF scores. The ALJ considered the GAF scores at length and determined
that they were contradicted by other evidence in the record. Upon de novo review, the Court
agrees with the Magistrate Judge that the ALJ’s finding that the GAF scores were entitled
to little weight is well-reasoned and supported by more than substantial evidence. Moreover,
the R&R correctly notes that the ALJ was not required to give any weight to the subjective
GAF scores, particularly those supplied by Plaintiff’s social workers.
Plaintiff’s second objection is that the R&R did not address the ALJ’s failure to
include the loss of function represented by Plaintiff’s low GAF scores in the hypothetical
question posed to the vocational expert. In order for the ALJ to rely on the vocational
expert’s testimony in response to a hypothetical question, the hypothetical question must
accurately portray the claimant’s physical and mental impairments. Ealy v. Comm’r, 594
F.3d 504, 516 (6th Cir. 2011); see also Webb v. Comm’r, 368 F.3d 629, 633 (6th Cir.2004)
(noting that the hypothetical should provide the vocational expert with the ALJ’s assessment
of the what the claimant “can and cannot do.”). In light of the ALJ’s determination that
Plaintiff’s GAF scores were arbitrarily low and inconsistent with the record as a whole, he
was not required to include them in his hypothetical. The ALJ’s residual functional capacity
(“RFC”) determination included mental limitations (A.R. 19), and those limitations were
adequately included in the hypothetical posed to the vocational expert (A.R. 643-44).

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Plaintiff’s third objection is based on his perception that the Magistrate Judge’s
analysis seems to be based on the concept that if a claimant uses or has used illegal drugs he
is a bad man and disability benefits should be denied him irregardless of the effects of other
impairments. Plaintiff mischaracterizes the R&R. The R&R included a discussion of
Plaintiff’s drug and alcohol abuse, not to show that he was a bad person, but because it was
relevant to Plaintiff’s credibility and the reliability of his test results. Furthermore, as
correctly explained in the R&R, Plaintiff’s assertion that the ALJ should have found that his
drug and alcohol use was not material is incorrect because the materiality of his drug and
alcohol use is irrelevant where a claimant has not been found to be disabled. (R&R 9 n.3.)
Finally, Plaintiff objects to the Magistrate Judge’s failure to conclude that the ALJ
should have contacted Dr. Shaird for more complete medical records. Plaintiff’s objection
lacks merit because it is Plaintiff’s responsibility to provide medical evidence showing that
he is disabled. 20 C.F.R. § 404.1512(c). As noted in the R&R, Plaintiff elected not to
submit any records from Dr. Shaird in support of his claims for DIB and SSI. (R&R 24.)
Accordingly, the Commissioner’s responsibility to “recontact” medical sources under 20
C.F.R. § 404.1512(e) did not come into play.
Upon de novo review, the Court concludes that the R&R accurately recites the facts
and correctly applies the pertinent law. Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s objections to the June 3, 2011, R&R
(Dkt. No. 14) are OVERRULED.

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IT IS FURTHER ORDERED that the June 3, 2011, R&R (Dkt. No. 13) is
APPROVED and ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that the final decision of the Commissioner of Social
Security denying Plaintiff’s claim for disability insurance benefits and supplemental security
income benefits is AFFIRMED.

Dated: August 4, 2011

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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