Hedden v. Commissioner of Social Security

Filing 10

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 8 , decision of the Commissioner of Social Security is reversed and remanded for further factual findings; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

AILEEN HEDDEN,
Plaintiff,

Case No: 1:10-cv-534

v

HON. JANET T. NEFF

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
/
OPINION AND ORDER
Plaintiff seeks judicial review of a decision of the Commissioner of the Social Security
Administration. 42 U.S.C. § 405(g). The matter was referred to the Magistrate Judge, who issued
a Report and Recommendation (R & R), recommending that this Court reverse the Commissioner’s
decision to deny Plaintiff’s claim for Disability Insurance Benefits (DIB) under Title II of the Social
Security Act, and remand this case for further factual findings. The matter is presently before the
Court on Defendant’s objections to the R & R (Dkt 9). In accordance with 28 U.S.C. § 636(b)(1)
and FED. R. CIV. P. 72(b)(3), the Court has performed de novo consideration of those portions of the
R & R to which objections have been made. The Court denies the objections and issues this Opinion
and Order.
Defendant argues that the Magistrate Judge erred in concluding that the ALJ’s decision to
discount Plaintiff’s credibility, and to discredit her testimony and subjective allegations of pain, is
not supported by substantial evidence. Defendant notes that the Magistrate Judge found that the ALJ
properly gave less-than-controlling weight to the opinions of Plaintiff’s treating physicians, Drs. Bez

and Karakitsos, based on the lack of objective supporting evidence (Objs. at 2-3). Defendant argues
therefore that it was the ALJ’s role to balance the treating physicians’ opinions of Plaintiff’s extreme
limitations with other evidence to make a credibility determination (id. at 3-4). Defendant further
objects to the Magistrate Judge’s observation that the ALJ appears to misinterpret the significance
of a positive Waddell’s sign as an indication of malingering or symptom exaggeration (id. at 4-5;
R & R at 22). Defendant asserts that the ALJ properly considered this evidence, but did not rely
exclusively on it, or conclude that it was evidence of malingering, and instead appropriately
considered it along with other evidence in the overall credibility analysis (Objs. at 5).
The Court finds Defendant’s objections without merit. The Magistrate Judge properly
assessed whether the ALJ’s consideration of Plaintiff’s credibility comported with the applicable
legal rules and was supported by substantial evidence. The Magistrate Judge appropriately
determined that the ALJ’s credibility determination was not reasonable or supported. See Kalmbach
v. Comm’r of Soc. Sec., 409 F. App’x 852, 865 (6th Cir. 2011) (while credibility determinations
regarding subjective complaints rest with the ALJ, those determinations must be reasonable and
supported by substantial evidence). Defendant’s citation to other evidence of Plaintiff’s abilities or
activities does not cure the deficiencies in the ALJ’s credibility determination.
The Magistrate Judge pointed out that as an initial matter, the ALJ relied on his erroneous
conclusion that “‘no physician imposed an ongoing work preclusive limitation on [Plaintiff’s]
functioning’” (R & R at 21, citing Tr. 20). Defendant does not dispute this error (Objs. at 2).
Further, to the extent that the ALJ discredited Plaintiff’s subjective allegations because of a positive
Waddell’s sign, particularly that noted by Dr. Andary, such a finding was contradicted by the record
(Objs. at 4-5; R & R at 22-23). The Magistate Judge noted that “the results of numerous physical

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examinations and objective testing revealed findings that Plaintiff’s care providers indicated were
consistent with her symptoms and allegations (id. at 23, citing Tr. 169, 205, 212, 215-16, 290, 359)
(emphasis in original).
The record evidence cited by Defendant does not undermine the Magistrate Judge’s analysis
or conclusion regarding the ALJ’s determination that Plaintiff’s statements concerning the intensity,
persistence and limiting effects of her symptoms were not credible (Tr. at 20). The Magistrate Judge
provided ample factual and legal justification for her conclusion that the ALJ’s determination did
not survive scrutiny (R & R 21-25) because the determination failed to comport with applicable
standards:
[T]he ALJ is not free to make credibility determinations based solely upon
an “intangible or intuitive notion about an individual’s credibility.” Soc. Sec. Rul.
96–7p, 1996 WL 374186, at *4. Rather, such determinations must find support in the
record. Whenever a claimant’s complaints regarding symptoms, or their intensity and
persistence, are not supported by objective medical evidence, the ALJ must make a
determination of the credibility of the claimant in connection with her complaints
based on a consideration of the entire case record. The entire case record includes
any medical signs and laboratory findings, the claimant’s own complaints of
symptoms, any information provided by the treating physicians and others, as well
as any other relevant evidence contained in the record. Consistency of the various
pieces of information contained in the record should be scrutinized. Consistency
between a claimant’s symptom complaints and the other evidence in the record tends
to support the credibility of the claimant, while inconsistency, although not
necessarily defeating, should have the opposite effect.
Social Security Ruling 96–7p also requires that the ALJ explain the
credibility determinations in his decision with sufficient specificity as “to make clear
to the individual and to any subsequent reviewers the weight the adjudicator gave to
the individual’s statements and the reasons for that weight.” In other words, blanket
assertions that the claimant is not believable will not pass muster, nor will
explanations as to credibility which are not consistent with the entire record and the
weight of the relevant evidence.
Kalmbach, 409 F. App’x at 863.

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As the Magistrate Judge explained, the ALJ’s conclusion the Plaintiff’s subjective
complaints were not credible suffered from numerous shortcomings, including the lack of supporting
evidence and citations to the record. Defendant’s objections are denied. This case is properly
remanded for the appropriate considerations and findings.
A Judgment will be entered consistent with this Opinion.

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

Dated: February 29 , 2012

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