Frank v. Commissioner of Social Security

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION 16 and affirming final decision of the Commissioner; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
THERESA EILEEN FRANK,
Plaintiff,

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-v)
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COMMISSIONER OF SOCIAL SECURITY,
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Defendant.
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____________________________________)

No. 1:14-cv-501
HONORABLE PAUL L. MALONEY

ORDER ADOPTING REPORT AND RECOMMENDATION AND AFFIRMING FINAL
DECISION OF THE COMMISSIONER
Plaintiff Theresa Frank filed this complaint seeking a review of the final decision of the
Commissioner of Social Security denying her claim for benefits. The magistrate judge reviewed the
record and issued a report recommending the Commissioner’s decision be affirmed. (ECF No. 16
R&R.) Plaintiff timely filed objections. (ECF No. 17 Objection.) The Commissioner filed a
response. (ECF No. 18.)
After being served with a Report and Recommendation (R&R) issued by a magistrate judge,
a party has fourteen days to file written objections to the proposed findings and recommendations.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see United States v. Sullivan, 431 F.3d 976, 984 (6th
Cir. 2005); Howard v. Sec’y of Health and Human Servs., 932 F.2d 505, 508 (6th Cir. 1991). A
district court judge reviews de novo the portions of the R&R to which objections have been filed.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Only those objections that are specific are entitled to
a de novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per
curiam).

Plaintiff specifically objects to three conclusions contained in the report and

recommendation.

A. Sentence 6 Remand
As part of her appeal to the Appeals Council, Plaintiff submitted evidence that she did not
present to the Administrative Law Judge (ALJ). The Appeals Council considered the new evidence,
and found that it did not provide a basis for changing the ALJ’s decision. (ECF No. 7-2 AC Dec.
2 Page ID 25.) The magistrate judge found that the evidence could not be considered as part of this
lawsuit, citing Cline v. CSS, 96 F.3d 146, 148 (6th Cir. 1996). (R&R 6 Page ID 514.) The Court
can, however, remand the matter if the plaintiff shows that the evidence is new and material, and that
good cause existed for not presenting the evidence in a prior hearing. Id. The magistrate judge
concluded Plaintiff had not made the required showing. Plaintiff objects.
Plaintiff’s objection is OVERRULED. Plaintiff has not established that the evidence
presented to the Appeals Council warrants remanding the action. Contrary to her assertion in the
objection (Obj. 1 Page ID 523), nowhere in her initial brief in this lawsuit did Plaintiff state or
suggest that the reason the records were not presented to the ALJ was because Plaintiff could not
afford to pay for those records before the ALJ rendered her decision. In the brief, Plaintiff did argue
that the lack of treatment for her ailments could not be considered as evidence contrary to a finding
of disability because she could not afford the treatments. (ECF No. 13 Pl. Br. 16 Page ID 483.) But
that argument suffers the fallacy known as a red herring. The ALJ did not conclude that Plaintiff’s
failure to seek recommended treatment or her decision not to complete treatment was evidence that
she was not disabled. After an extensive description of Plaintiff’s medical history, the ALJ stated
that she found “the claimant’s record of back pain treatment and mental health impairment spartan.”
(ECF No. 7-2 ALJ Dec. 85 Page ID 109.) Plaintiff stops here, but the ALJ did not. In the next
sentence, the ALJ explained “claimant’s record for her back pain can be summarized as a series of

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checkups by her primary care clinic, with an MRI showing a small herniation and rather mild
degenerative disease, managed with hydrocodone and Aleve.” (Id.) The ALJ’s conclusion was that
the record of her treatment was “spartan” because the medical evidence indicated there was little to
treat, and that her pain was managed with medication. Plaintiff’s objection thus does not undermine
the sound reasoning in the R&R. For the same reason, Plaintiff’s discussion of Stennett v. CSS, 476
F.Supp.2d 665, (E.D. Mich. 2007) and SSR 96-7 does not establish any error in the ALJ’s decision
or in the R&R.
B. Treating Physician
The ALJ afforded “little weight” to the Functional Capacity Questionnaire completed by Dr.
Chris Zielinski and physician’s assistant David Barrey. (ALJ Dec. 85 Page ID 109.) The magistrate
judge found no error, as the ALJ articulated reasons for giving the opinions expressed in the
questionnaires little weight. Plaintiff objects.
Plaintiff’s objection is OVERRULED. The Court has carefully reviewed the ALJ’s opinion,
in light of the standard outlined in Geyheart v. CSS, 710 F.3d 365, 375-76 (6th cir. 2013). The ALJ
found that the conclusions in the questionnaires completed by the treating physicians were not wellsupported by the medical record or the course of treatment by the physician, which constitute “‘good
reasons’ for discounting the weight given to a treating source opinion.” Id. at 376 (quoting 20 C.F.R.
§ 404.1527(c)(2). The Court agrees with the conclusions and recommendations of the magistrate
judge.
C. Social Workers
The ALJ stated that the post-hearing opinions of the social workers were not medically
accepted sources. (ALJ Dec. 85 Page ID 109.) Nevertheless, she found their observations

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“noteworthy.” (Id. 86 Page ID 110.) The ALJ assigned little weight to the long-term implications
of Plaintiff’s global assessment of functioning (GAF) score. (Id.) The magistrate judge found no
error in this portion of the ALJ’s decision. Plaintiff objects.
Plaintiff’s objection is OVERRULED. Plaintiff mischaracterizes the ALJ’s decision.
Plaintiff states that the ALJ “dismissed their findings as having little weight because they were
produced by social workers and thus were not acceptable medical sources.” (Obj. 3 Page ID 525.)
The ALJ did no such thing. The ALJ considered the opinions of the social workers. He found that
their observations and recommended course of action was generally consistent with Plaintiff’s record
of treatment. The ALJ only discounted the long-term implication of the GAF score. Plaintiff’s
objection rests largely on the fact that social workers can be a valid “other source.” An observation
that does not affect the ALJ’s decision or the reasoning in the R&R.
The Court has conducted a de novo review on the specific issues raised in Plaintiff’s
objections. The Court finds no error in either the ALJ’s decision or the R&R. Therefore, the Report
and Recommendation (ECF No. 16) is ADOPTED as the opinion of this Court, and the final
decision of the Commissioner is AFFIRMED. IT IS SO ORDERED.

Date:

April 30, 2015

/s/ Paul L. Maloney
Paul L. Maloney
Chief United States District Judge

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