Hanshaw v. Commissioner of Social Security
Filing
17
REPORT AND RECOMMENDATION re 3 Complaint: It is RECOMMENDED that the Court OVERRULE Plaintiff's Statement of Errors and AFFIRM the Commissioner of Social Securitys decision. Objections to R&R due by 8/10/2015. Signed by Magistrate Judge Elizabeth Preston Deavers on 7/23/2015. (mas)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CELESTE HANSHAW,
Plaintiff,
Civil Action 2:14-cv-1464
Judge James L. Graham
Magistrate Judge Elizabeth P. Deavers
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
REPORT AND RECOMMENDATION
Plaintiff, Celeste Hanshaw, who is proceeding without the assistance of counsel, brings
this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of a final decision of the
Commissioner of Social Security (“Commissioner”) denying her application for disability
insurance benefits and supplemental security income. This matter is before the United States
Magistrate Judge for a Report and Recommendation on Plaintiff’s Statement of Errors (ECF No.
13), the Commissioner’s Memorandum in Opposition (ECF No. 15), Plaintiff’s Reply (ECF No.
16), and the administrative record (ECF No. 7). For the reasons that follow, it is
RECOMMENDED that the Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM
the Commissioner’s decision.
I.
BACKGROUND1
Plaintiff, Celeste Hanshaw, protectively filed her application for Disability Insurance
Benefits on September 6, 2011, and subsequently protectively filed an application for
Supplemental Security Income on October 27, 2011. In both applications, Plaintiff alleged a
disability onset date of July 17, 2008. Plaintiff’s application was denied initially and upon
reconsideration. (R. at 124, 127.) Plaintiff sought a de novo hearing before an administrative
law judge.
Administrative Law Judge Timothy G. Keller (“ALJ”) held a hearing on November 26,
2013, at which Plaintiff, represented by counsel, appeared and testified. (R. at 37-55.) Lynne
Kaufman, a vocational expert, also appeared and testified at the hearing. On December 13,
2013, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the
Social Security Act. (R. at 12-29.) On July 8, 2014, the Appeals Council denied Plaintiff’s
request for review and adopted the ALJ’s decision as the Commissioner’s final decision. (R. at
1-3.) Plaintiff then timely commenced the instant action.
In her Statement of Errors, Plaintiff appears to assert that the Commissioner should
consider her new medical records and her current course of treatment. She attaches a partial
radiology report dated January 21, 2015, and notes that she is currently receiving physical
therapy, that she uses a TENS unit, and that she has been treated with a “traction machine.”
(Pl.’s Statement of Errors 2, ECF No. 13.) Plaintiff next lists a number of diagnoses. Finally,
1
For the sake of brevity, the Undersigned provides a brief outline of the procedural
history and will discuss the record evidence as necessary to address Plaintiff’s contentions of
error within the Analysis Section.
2
Plaintiff represents that she did not fly or drive to Florida and that she is not currently on pain
medications.
In her Memorandum in Opposition, the Commissioner posits that substantial evidence
supports the ALJ’s non-disability finding. The Commissioner further asserts that remand for
consideration of new evidence is not appropriate given that the evidence at issue is cumulative
and immaterial.
In her Reply, Plaintiff states that her “[f]irst disagreement is the fact that the
Commissioner . . . sent her personal information to a prisoner . . . .” (Pl.’s Reply 1, ECF No. 16.)
She states that her “[s]econd disagreement is her diagnoses,” adding that the Court needs to
research and understand her conditions. (Id.) She also asks the Court to explain why Dr. Khan,
her treating psychologist, is not an acceptable medical source. Plaintiff further asserts that she is
not a drug seeker, and as of July 27, 2015, she “will be celebrating narcotic free.” (Id.) She
reiterates that she has not flown to Florida to visit her parents. Finally, Plaintiff again states that
she has been receiving ongoing treatment and questions why a decision would be rendered
without consideration of her more recent medical records.
II.
THE ADMINISTRATIVE DECISION
At step one of the sequential evaluation,2 the ALJ found that Plaintiff had not
2
Social Security Regulations require ALJs to resolve a disability claim through a fivestep sequential evaluation of the evidence. See 20 C.F.R. § 416.920(a)(4). Although a
dispositive finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d
727, 730 (6th Cir. 2007), if fully considered, the sequential review considers and answers five
questions:
1.
2.
3.
Is the claimant engaged in substantial gainful activity?
Does the claimant suffer from one or more severe impairments?
Do the claimant’s severe impairments, alone or in combination, meet or
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engaged in substantial gainful activity since alleged onset date of July 17, 2008, the original
alleged onset date of disability. At step two, the ALJ found that Plaintiff had the following
severe impairments during the relevant period: neck, back, fibromyalgia, bipolar disorder,
anxiety, depression, and prescription drug abuse. (R. at 15.) The ALJ further found that
Plaintiff did not have an impairment or combination of impairments that met or medically
equaled one of the listed impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1.
At step four of the sequential process, the ALJ set forth Plaintiff’s residual functional
capacity (“RFC”) as follows:
After careful consideration of the entire record, the undersigned finds that [Plaintiff]
had the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) except that [Plaintiff] may no climb ladders, ropes, or
scaffolds. She may not Crawl. [Plaintiff] is capable of understanding, carrying out
and remembering simple to moderately complex instruction and can sustain attention
and concentration for two hour segments over an eight hour work period. She is able
to respond appropriately to supervisors and co-workers in a task oriented setting
where contact with others is casual and infrequent. She is able to adapt to simple
changes and avoid hazards in a setting without strict production demands or quotas.
(R. at 17). In formulating this RFC, the ALJ found Plaintiff’s allegations concerning both her
mental and physical impairments to be less than credible.
4.
5.
equal the criteria of an impairment set forth in the Commissioner’s Listing of
Impairments, 20 C.F.R. Subpart P, Appendix 1?
Considering the claimant's residual functional capacity, can the claimant
perform his or her past relevant work?
Considering the claimant's age, education, past work experience, and residual
functional capacity, can the claimant perform other work available in the national
economy?
See 20 C.F.R. § 416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);
Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
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Relying on the VE’s testimony, the ALJ concluded that Plaintiff can perform jobs that
exist in significant numbers in the state and national economy. The ALJ therefore concluded
that Plaintiff was not disabled under the Social Security Act.
III.
STANDARD OF REVIEW
When reviewing a case under the Social Security Act, the Court “must affirm the
Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to
proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. §
405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is
defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers, 486
F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).
Although the substantial evidence standard is deferential, it is not trivial. 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)). Nevertheless, “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 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.
1997)). Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘a decision
of the Commissioner will not be upheld where the SSA fails to follow its own regulations and
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where that error prejudices a claimant on the merits or deprives the claimant of a substantial
right.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746
(6th Cir. 2007)).
IV.
ANALYSIS
The Undersigned finds each of Plaintiff’s contention of errors to be without merit and
considers each in turn.
A.
Plaintiff’s New Medical Records and Recent Treatment
Neither Plaintiff’s alleged recent medical treatment nor the records she attached to her
briefing are grounds for remand. Sentence six of 42 U.S.C. § 405(g) provides in relevant part as
follows:
The Court may, on motion of the Secretary made for good cause shown before he
files his answer, remand the case to the Secretary for further action by the Secretary,
and it may at any time order additional evidence to be taken before the Secretary, but
only upon a showing that there is new evidence which is material and that there is
good cause for the failure to incorporate such evidence into the record in a prior
proceeding . . . .
42. U.S.C. § 405(g). “Sentence-six remands may be ordered in only two situations: where the
Secretary requests a remand before answering the complaint, or where new, material evidence is
adduced that was for good cause not presented before the agency.” Shalala v. Schaefer, 509 U.S.
292, 297 n.2 (1993) (citations omitted). The requirements that the evidence be “new” and
“material,” and that “good cause” be shown for the failure to present the evidence to the ALJ
have been defined by the United States Court of Appeals for the Sixth Circuit as follows:
“For the purposes of a 42 U.S.C. § 405(g) remand, evidence is new only if it was ‘not
in existence or available to the claimant at the time of the administrative proceeding.’
. . . Such evidence is ‘material’ only if there is ‘a reasonable probability that the
Secretary would have reached a different disposition of the disability claim if
presented with the new evidence.’ . . . A claimant shows ‘good cause’ by
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demonstrating a reasonable justification for the failure to acquire and present the
evidence for inclusion in the hearing before the ALJ . . . . [T]he burden of showing
that a remand is appropriate is on the claimant.”
Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 276 (6th Cir. 2010) (quoting Foster v. Halter,
279 F.3d 348, 357 (6th Cir. 2001)).
In the instant case, Plaintiff attached to her Statement of Errors partial radiology reports
of computed tomography (“CT”) scans of her lumbar spine and cervical spine dated January 21,
2015. (ECF No. 13 at p. 3–4.) She attached these same reports to her Reply, as well as a
diagnostic assessment update that a counselor completed in March 2014. Although Plaintiff
failed to argue materiality, review of the additional evidence she attached to her briefing reveals
that she could not have shown a “reasonable probability” that the Secretary would have reached
a different conclusion on the issue of disability if presented with the additional evidence for
several reasons. See Ferguson, 628 F.3d at 276.
First, as the Commissioner points out, Plaintiff’s alleged recent treatment and the
evidence she attaches to her briefing post-date the relevant time period. Thus, her treatment and
records are not probative of Plaintiff’s condition during the relevant time period. See Casey v.
Sec’y of HHS, 987 F.2d 1230, 1233 (6th Cir. 1993) (“The rest of the material contained in the
additional evidence pertains to a time outside the scope of our inquiry.”); see also McCracken v.
Comm’r of Soc. Sec., No. 1:08–CV–327, 2009 WL 2983049, at *3 (S.D. Ohio Sept. 14, 2009)
(“[M]edical evidence obtained after Plaintiff’s insurance status expired is not relevant, except
perhaps to the extent that it relates back to the covered period.” (internal citation omitted)).
Second, the January 2015 CT scan of her cervical spine that Plaintiff attached is not
material because it is cumulative of the 2010 and 2012 MRIs of Plaintiff’s cervical spine that the
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ALJ considered. See Elliot v. Apfel, 28 F. App’x 420, 424 (6th Cir. 2002) (holding that within
the context of considering a remand under sentence six, “[n]ew evidence must be new; it cannot
be cumulative of evidence already in the record”); see also Allen v. Comm’r of Soc. Sec., 561
F.3d 646, 654 (6th Cir. 2009) (finding that the ALJ and district court properly rejected
cumulative evidence as not material); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 598 (6th
Cir. 2005) (affirming district court’s finding that remand was not warranted where the new IQ
test submitted was “largely cumulative of evidence and opinions already present in the record”).
The portion of the 2015 CT scan Plaintiff submitted showed “[s]traightening of the normal
lordotic curvature of the cervical spine, which may be degenerative, positional, or due to muscle
spasm” and “mild left foraminal narrowing.” (ECF No. 13 at p. 4.) As the ALJ noted in his
decision, the June 2012 MRI similarly revealed a “chronic straightening of the cervical lordosis
without sublauxation,” as well as “moderate bilateral foraminal narrowing.” (R. at 660, 26.)
Similarly, the 2015 CT scan of Plaintiff’s lumbar spine showed only minor degenerative disc
changes and facet arthrosis, a condition that the ALJ considered within his decision. (See R. at
15 (noting that “[t]he evidence demonstrates that [Plaintiff] has . . . significant degenerative joint
disease of the hips and degenerative disc disease of the spine . . . .”).)
Finally, the records Plaintiff submits are not material because they offer no basis for
changing the ALJ’s decision. Within his decision, the ALJ considered Plaintiff’s back
impairments and included both exertional and postural limitations in the RFC to address the
symptoms he found credible. The Undersigned is unable to discern how the results of the
January 2015 MRIs would necessitate a finding that Plaintiff was more limited than the ALJ
determined. The March 2014 diagnostic assessment update completed by a counselor that
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Plaintiff attached to her Reply likewise fails to show that Plaintiff is more limited than the ALJ
opined. As set forth above, the ALJ found that Plaintiff had the severe impairments of bipolar
disorder, anxiety, and depression and included limitations within his RFC determination to
accommodate these mental impairments. The 2014 diagnostic assessment update simply lists a
number of diagnoses based upon Plaintiff’s self-reported diagnoses. The ALJ, however,
determined in his decision that Plaintiff’s self-reports were not credible. Regardless, such a
listing of diagnoses does not require the conclusion that Plaintiff is more limited than the ALJ
opined because it offers no insight into the degree of impairment that these conditions may have
caused. See Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (“The mere diagnosis of [the
condition] . . . says nothing about the severity of the condition.” (citation omitted)).
In sum, because Plaintiff cannot demonstrate that there is a reasonable probability that
the Commissioner would have reached a different disposition of her disability claim in light of
her recent treatment and new medical records, it is RECOMMENDED that her first contention
of error be OVERRULED.
B.
Credibility Assessment
Plaintiff next appears to challenge the ALJ’s credibility assessment. In both her
Statement of Errors and her Reply, she emphasizes that she did not travel to Florida and that she
is not currently on pain medications. In her Reply, she represents that she has never been a drug
seeker. The Undersigned finds that substantial evidence supports the ALJ’s credibility
assessment.
The Sixth Circuit has provided the following guidance in considering an ALJ’s
credibility assessment:
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Where the symptoms and not the underlying condition form the basis of the disability
claim, a two-part analysis is used in evaluating complaints of disabling pain. 20
C.F.R. § 416.929(a); Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001); Felisky v.
Bowen, 35 F.3d 1027, 1038-39 (6th Cir. 1994). First, the ALJ will ask whether the
there is an underlying medically determinable physical impairment that could
reasonably be expected to produce the claimant’s symptoms. 20 C.F.R. §
416.929(a). Second, if the ALJ finds that such an impairment exists, then he must
evaluate the intensity, persistence, and limiting effects of the symptoms on the
individual’s ability to do basic work activities. Id.
Rogers, 486 F.3d at 247.
“The ALJ’s assessment of credibility is entitled to great weight and deference, since he
[or she] had the opportunity to observe the witness’s demeanor.” Infantado v. Astrue, 263 F.
App’x 469, 475 (6th Cir. 2008) (citing Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th
Cir. 1997)); Sullenger v. Comm’r of Soc. Sec., 255 F. App’x 988, 995 (6th Cir. 2007) (declining
to disturb the ALJ’s credibility determination, stating that: “[w]e will not try the case anew,
resolve conflicts in the evidence, or decide questions of credibility” (citation omitted)). This
deference extends to an ALJ’s credibility determinations “with respect to [a claimant’s]
subjective complaints of pain.” Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 652 (6th Cir. 2009)
(quoting Siterlet v. Sec’y of Health & Hum. Servs., 823 F.2d 918, 920 (6th Cir.1987)). Despite
this deference, “an ALJ’s assessment of a claimant’s credibility must be supported by substantial
evidence.” Walters, 127 F.3d at 531. Furthermore, the ALJ’s decision on credibility must be
“based on a consideration of the entire record.” Rogers, 486 F.3d at 247 (internal quotation
omitted). An ALJ’s explanation of his or her credibility decision “must be sufficiently specific
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.” Id. at 248; see also Mason v.
Comm’r of Soc. Sec. Admin., No. 1:06–CV–1566, 2012 WL 669930, at *10 (N.D. Ohio Feb. 29,
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2012) (“While the ALJ’s credibility findings ‘must be sufficiently specific’, Rogers, 486 F.3d at
248, the intent behind this standard is to ensure meaningful appellate review.”).
“Discounting credibility to a certain degree is appropriate where an ALJ finds
contradictions among the medical reports, claimant’s testimony, and other evidence.” Walters,
127 F.3d at 531. In addition, the Regulations list a variety of factors an ALJ must consider in
evaluating the severity of symptoms, including a claimant’s daily activities; the effectiveness of
medication; and treatment other than medication. 20 C.F.R. § 404.1529(c)(3); SSR 96–7p, 1996
WL 374186 (July 2, 1996); but see Ewing v. Astrue, No. 1:10–cv–1792, 2011 WL 3843692, at
*9 (N.D. Ohio Aug. 12, 2011) (suggesting that although an ALJ is required to consider such
factors, he or she is not required to discuss every factor within the written decision) (Report and
Recommendation later adopted).
On a related note, cases involving fibromyalgia “place[] a premium . . . on the
assessment of the claimant’s credibility.” Swain v. Comm’r of Soc. Sec., 297 F. Supp. 2d 986,
990 (N.D. Ohio 2003). This is because “unlike medical conditions that can be confirmed by
objective testing, fibromyalgia patients present no objectively alarming signs.” Rogers, 486
F.3d at 243. “Nonetheless, a diagnosis of fibromyalgia does not automatically entitle [a
claimant] to disability benefits . . . .” Vance v. Comm’r of Soc. Sec., 260 F. App’x 801, 806 (6th
Cir. 2008) (emphasis in original) (citing Sarchet v. Chater, 78 F.3d 305, 306–07 (7th Cir.1996)
(“Some people may have a severe case of fibromyalgia as to be totally disabled from working . .
. but most do not and the question is whether [claimant] is one of the minority.”) (citations
omitted)). Accordingly, in cases involving fibromyalgia, an ALJ must assess Plaintiff’s
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credibility and “decide . . . if the claimant’s pain is so severe as to impose limitations rendering
her disabled.” Swain, 297 F. Supp. 2d at 990.
In the instant action, the ALJ offered numerous good reasons for discounting Plaintiff’s
credibility, including her inconsistent statements, her failure to report her pain medication usage
to various providers, her activities of daily living, the unremarkable findings during physical
examinations, the mild findings on diagnostic tests, and his own observations of her during the
administrative hearing. (See R. at 15-27.) Thus, even if the Court assumed arguendo that the
record demonstrates that Plaintiff did not travel to Florida and that she never abused drugs, the
ALJ’s credibility determination remains supported by substantial evidence such that his decision
must be upheld. See Johnson v. Comm’r of Soc. Sec., 535 F. App’x 498, 507 (6th Cir. 2013)
(citing Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 714 (6th Cir. 2012)) (“[E]ven if an ALJ’s
adverse credibility determination is based partially on invalid reasons, harmless error analysis
applies to the determination, and the ALJ’s decision will be upheld as long as substantial
evidence remains to support it.”).
Nevertheless, the record supports that ALJ’s findings with regard to her travel. The ALJ
found that Plaintiff’s visit to Florida and going shopping on Black Friday undermined her
allegations that she only left her home to go to church and was unable to drive more than five
minutes in a car because she suffered from severe social phobia and panic attacks in crowds. (R.
at 16.) Consistent with the ALJ’s findings, Plaintiff reported to Dr. Stephen Morgenstern, M.D.,
her primary care physician, that she had been out shopping at the Black Friday sales. (R. at 417.)
In addition, in April 2009, Plaintiff reported to Dr. Morgenstern that she had been “[d]oing a lot
of driving helping her parents move down to Florida.” (R. at 424.) Finally, in July 2011,
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Plaintiff represented to her pain management physician that she had recently driven to Florida to
see her mother. (R. at 580.)
The record likewise supports the ALJ’s notation that Plaintiff had abused prescription
drugs. As the ALJ noted and Plaintiff did not dispute, Plaintiff has a history of hospitalization
for detoxification from opiate pain medications. (See R. at 437-439 (hospitalized for six days for
detoxification and diagnosed with polysubstance dependence); R. at 859-97 (admitted for four
days for detoxification)). In addition, in October 2008, Dr. Morgenstern noted that Plaintiff was
taking her Vicodin pain medication four times per day rather than the two or three times a day he
prescribed. (R. at 429.) In December 2008, Plaintiff reported that she had run out of her pain
medications because she lost them and was afraid she was going through withdrawal. (R. at
427.) Later that same month, Plaintiff requested more pain medication and reported that she was
now going to lock her pain medications in a lock box. (R. at 426.) In April 2009, Plaintiff
reported using more pain medication that she had been prescribed because she had dental work.
(R. at 423.) In July 2009, Plaintiff reported that she ran out of her pain medications early and
needed more because she she hurt her achilles tendon. (R. at 421.) In September 2009, Plaintiff
asked for early refills on her pain medications because someone reportedly stole her medications
while she was at the airport. (R. at 420.) In December 2009, Plaintiff reported that she had
taken more pain medications than he had prescribed because a large woman passed out and
landed on top of her and had a seizure. (R. at 417.) Dr. Morgenstern agreed to a “short course”
of more pain medication, but declared that “[t]here will be no further narcotic prescriptions
through this office for [Plaintiff]” and instructed her to see a pain specialist. (Id.) He noted that
in roughly three weeks time, Plaintiff had used one-hundred pain pills. Dr. Warren Stearns,
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M.D., who took over Plaintiff’s pain medication management, noted in June 2013, that Plaintiff
was not consistent and that she was “clearly drug seeking.” (R. at 926.) Finally, in August
2012, Plaintiff tested positive for ampheteamine, a drug that Plaintiff had not even been
prescribed. (R. at 703.)
In sum, it is RECOMMENDED that the Court decline to disturb the ALJ’s credibility
assessment and OVERRULE Plaintiff’s second contention of error.
C.
Issues Plaintiff Raises in her Reply
In her Reply, Plaintiff advances two additional challenges. The Undersigned
recommends that the Court disregard these additional arguments because Plaintiff raised them
for the first time in her Reply. See, e.g., Am. Trim, L.L.C. v. Oracle Corp., 383 F.3d 462, 477
(6th Cir. 2004) (noting that the court has consistently held that it will not consider arguments
raised for the first time in reply). Regardless, the Undersigned notes that Plaintiff’s additional
challenges lack merit.
As set forth above, Plaintiff states in her Reply that her “[f]irst disagreement is the fact
that the Commissioner . . . sent her personal information to a prisoner . . . .” (Pl.’s Reply 1, ECF
No. 16.) Based upon Plaintiff’s representations, it appears that the Clerk inadvertently mailed a
document containing her personal information to an inmate. Plaintiff further represents that this
inmate sent her correspondence and called her phone number so many times that she was forced
to work with the prison to have the phone number blocked. She represents that given that this
inmate now knows where she lives, she fears that her and her family’s lives are endangered.
Although the Court is sympathetic to the issues that have arisen due to the Clerk’s error, it is not
14
a basis for reversing the Commissioner’s decision. The Court notes that Plaintiff is free to
contact local law enforcement to address the issues she is experiencing.
Plaintiff states that her “[s]econd disagreement is with [her] diagnoses” and questions
why Dr. Khan, her treating psychologist, is not an acceptable medical source. (Id.) She appears
to be referring to the diagnoses reflected in the 2014 diagnostic assessment update she attached
to her Reply and the Commissioner’s notation in its Memorandum in Opposition that the
counselor filling out the diagnostic assessment is not an “acceptable medical source” as
contemplated under the Social Security Administration’s regulations, (Def.’s Mem. in Opp. 15,
ECF No. 15). As noted above, a listing of diagnoses does not require the conclusion that
Plaintiff is more limited than the ALJ opined because diagnoses “say[] nothing about the severity
of the condition.” Higgs, 880 F.2d at 863. Moreover, the Commissioner correctly points out
that counselors are not acceptable medical sources as contemplated under the regulation and that
evidence from an acceptable medical source is required to establish a medically determinable
impairment. 20 C.F.R. § 404.1513. Finally, as discussed above, the 2014 diagnostic assessment
update does not constitute new, material evidence warranting remand. Accordingly, it is
RECOMMENDED that the Court OVERRULE Plaintiff’s final contention of error in the event
it is not considered waived.
V.
CONCLUSION
In sum, from a review of the record as a whole, the Undersigned concludes that
substantial evidence supports the ALJ’s decision denying benefits. Accordingly, it is
RECOMMENDED that the Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM
the Commissioner of Social Security’s decision.
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VI.
PROCEDURE ON OBJECTIONS
If Plaintiff seeks review by the District Judge of this Report and Recommendations, he
may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
Plaintiff is specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).
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IT IS SO ORDERED.
Date: July 23, 2015
/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge
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