Opinion
Case No. 1:20-cv-11752
2022-03-17
Mohammed Mason NASSER, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Ronald D. Glotta, Glotta Assoc., Highland Park, MI, for Plaintiff. Amelia Stewart, Molly E. Carter, Social Security Administration, Boston, MA, Zak Toomey, United States Attorney's Office, Detroit, MI, for Defendant.
Ronald D. Glotta, Glotta Assoc., Highland Park, MI, for Plaintiff.
Amelia Stewart, Molly E. Carter, Social Security Administration, Boston, MA, Zak Toomey, United States Attorney's Office, Detroit, MI, for Defendant.
OPINION AND ORDER (1) OVERRULING PLAINTIFF'S OBJECTIONS TO MAGISTRATE JUDGE'S ORDER, (2) ADOPTING MAGISTRATE JUDGE'S ORDER, (3) DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, (4) GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, (5) AFFIRMING COMMISSIONER'S ORDER, AND (6) DISMISSING COMPLAINT WITH PREJUDICE
THOMAS L. LUDINGTON, United States District Judge
This matter is before this Court upon Plaintiff's objection, ECF No. 26, to the Magistrate Judge's Report and Recommendation ("R&R"), ECF No. 25. Under 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b)(3), this Court has reviewed de novo those portions of the R&R to which Plaintiff has objected. Because substantial evidence supports all the ALJ's findings and the Magistrate Judge did not err, Plaintiff's objections will be overruled, the R&R will be adopted, Plaintiff's Motion for Summary Judgment will be denied, Defendant's Motion for Summary Judgment will be granted, the Commissioner's decision will be affirmed, and the case will be dismissed with prejudice.
I.
Plaintiff Mohammed Mason Nasser brings this action under 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3) for review of a final decision of the Commissioner of Social Security denying his applications for Supplemental Security Income (SSI) and Disability Insurance (DI) benefits.
A.
Plaintiff filed claims for SSI and DI benefits on August 14, 2014. See ECF No. 15 at PageID.234. In August 2016, Administrative Law Judge (ALJ) Carol Guyton denied those claims finding that Plaintiff was not disabled within the meaning of the Social Security Act. See id. at PageID.231–52.
In October 2017, Plaintiff again applied for SSI and DI benefits alleging that his disability began on February 4, 2014, at the age of 31. See id. at PageID.402–12. His disability report listed lower-back injury, right-shoulder injury, hip injury, neck pain, depression and mental-health issues, high blood pressure, high cholesterol, diabetes, thoracic-disc herniation, and lumbar-disc herniation as limiting his ability to work. See id. at PageID.288. His applications were denied in March 2018. See id. at PageID.287–88.
Plaintiff requested a hearing before an ALJ. See id. at PageID.305–06. ALJ Roy E. LaRoche, Jr. held hearings on March 6 and May 1, 2019, during which Plaintiff and Vocational Expert Diane Regan testified. See id. at PageID.185–230.
In May 2019, ALJ LaRoche issued an order concluding that Plaintiff was not disabled within the meaning of the Social Security Act between May 29, 2019 and August 8, 2016, the date of the unfavorable decision from ALJ Guyton. See id. at PageID.164–84.
Specifically, ALJ LaRoche stated:
Administrative Law Judge (ALJ) Carol Guyton issued an unfavorable decision on August 8, 2016, finding the claimant not disabled from August 14, 2014 through the date of the decision (Ex. B1A/17). The claimant appealed the unfavorable decision; however, the Appeals Council denied the request for review (Ex. B2A/1). Thus, ALJ Guyton's unfavorable decision, dated August 8, 2016, became the final decision of the Commissioner, binding on all parties. Accordingly, the issue of disability is res judicata through the date of that decision. While the undersigned has considered all of the medical records, the undersigned attributes less weight to the evidence of disability prior to August 9, 2016, since the issue of disability is res judicata up to that date. As further discussed below, the undersigned finds there has been a change in the claimant's condition since ALJ Guyton's decision.
....
Administrative Law Judge Guyton's prior finding concerning the claimant's residual functional capacity is binding absent evidence of an improvement or change in condition since the prior hearing. See Drummond v. Commissioner of Social Security , 126 F.3d 837 (6th Cir. 1997) ; Acquiescence Ruling 98-4(6) (SSA must adopt a finding of a claimant's residual functional capacity or other finding required under the applicable sequential evaluation process for determining disability, made in the final decision by an ALJ or Appeals Council on a prior disability claim unless new and additional evidence or changed circumstances provide a basis for a different finding of the claimant's residual functional capacity).
As explained in the analysis below, the undersigned finds that the evidence of record shows that there has been a change in the claimant's condition since the prior decision and that the substantial evidence of record supports the aforementioned residual functional capacity. Specifically, new evidence regarding the claimant's conditions support a change in the residual functional capacity to the point where the light exertional level is no longer appropriate.
ECF No. 15 at PageID.167, 172.
Plaintiff submitted a request for review of the ALJ's order. See id. at PageID.391–401. On May 13, 2020, however, the Appeals Council denied Plaintiff's request for review. See id. at PageID.153–58. Consequently, ALJ LaRoche's order became the Commissioner's final decision. Plaintiff timely commenced the instant action on June 30, 2020. See ECF No. 1.
On June 30, 2020, Plaintiff filed a complaint in this Court under 42 U.S.C. § 405(g). ECF No. 1. Plaintiff argued that ALJ LaRoche's order was contrary to "the purpose and intent of the Social Security Act," "the law," and "the evidence" by finding that Plaintiff was not "disabled from performing substantial gainful activity." Id. at PageID.2. Accordingly, Plaintiff requested this Court to "reverse[ ], remand[ ], and set aside" ALJ LaRoche's order and "allow" his claim for SSI and DI benefits. Id. This matter was referred to Magistrate Judge Anthony P. Patti. ECF No. 3. The parties filed cross-motions for summary judgment. ECF. Nos. 20; 22.
On February 16, 2022, Judge Patti issued a Report and Recommendation, recommending that this Court (1) deny Plaintiff's Motion for Summary Judgment; (2) grant Defendant's Motion for Summary Judgment; and (3) affirm the Commissioner's decision. See generally ECF No. 25. According to Judge Patti, Plaintiff had not demonstrated that the ALJ erred in his analysis of (1) Dr. Policherla's opinion, id. at PageID.824–39; (2) Thomas Flake's opinion, id. at PageID.839–43; (4) Kathy Morrow's opinion, id.; or (4) Plaintiff's impairments, see id. at PageID.843–46.
On February 28, 2022, Plaintiff filed an objection to the Report and Recommendation, arguing that Judge Patti erred in 12 of his findings. See ECF No. 26. Two weeks later, Defendant responded to Plaintiff's objection. ECF No. 27.
II.
A.
The Social Security Act allows claimants to seek SSI and DI benefits. The Social Security regulations outline a five-step process that the ALJ must use to determine whether a disabled adult child is entitled to DAC benefits: (1) whether the claimant is engaged in substantial gainful activity; (2) if not, whether the claimant has a severe impairment or combination of impairments; (3) if so, whether that impairment, or combination of impairments, meets or equals any of the listings in 20 C.F.R. § 404, Subpart P, Appendix 1; (4) if not, whether the claimant can perform her past relevant work in light of her residual functional capacity (RFC); and (5) if not, whether, based on the claimant's age, education, and work experience, she can perform other work found in the national economy. 20 C.F.R. § 404.1520(a)(4)(i)–(v) ; Combs v. Comm'r of Soc. Sec., 459 F.3d 640, 642–43 (6th Cir. 2006) (en banc).
For some discussion on the history and nuances of the Social Security Act, see generally Michele Johnson & Kristin Ware, Medicaid Expansion by Any Other Name: Exploring the Feasibility of Expanded Access to Care in the Wake of NFIB v. Sebelius, 1 Belmont L. Rev. 119 (2014).
1 The claimant bears the burden of producing sufficient evidence to prove that she is disabled and, thus, entitled to benefits. 20 C.F.R. § 404.1512(a). Specifically, the claimant has the burden of proof in steps one through four. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). At step five, the burden shifts to the Commissioner to establish whether the claimant has the RFC to perform available work in the national economy. Id.
B.
Applying the five steps, the ALJ found that Plaintiff was not disabled under the Act during the relevant period. At Step One of the sequential evaluation process, the ALJ found that Plaintiff had not engaged in substantial gainful activity since August 4, 2016, his alleged onset date. See ECF No. 15 at PageID.170. At Step Two, the ALJ found that Plaintiff had the following severe impairments: disorders of the cervical, thoracic and lumbar spine, obesity, diabetes mellitus, major depressive disorder, and personality disorder. See id.
At Step Three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. See id. at PageID.170–71. To that end, the ALJ assessed Plaintiff's RFC, concluding that she could perform "sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)," with the following work limitations:
• no occasional pushing and pulling with the bilateral lower extremities;
• requires the ability to stand for 2–3 minutes after 30 minutes of sitting;
• can occasionally balance, stoop, crouch and climb ramps and stairs;
• no climbing ladders, ropes, or scaffolds;
• no kneeling or crawling; no exposure to unprotected heights and dangerous moving machinery;
• no overhead reaching with the bilateral upper extremities;
• frequently perform handling and fingering with the bilateral upper extremities;
• requires use of a handheld assistive device for ambulation and while standing;
• limited to simple and routine tasks, involving only simple, short instructions and simple work-related decisions with few, if any, workplace changes; and
• no contact with the general public.
Id. at PageID.172–77.
At Step Four, the ALJ determined that Plaintiff could not perform any past relevant work. See id. at PageID.177. At Step Five, considering Plaintiff's RFC and age, education, and work experience, the ALJ determined that Plaintiff could perform numerous jobs in the active national economy, including inspector and sorter. Id. at PageID.177–78.
Ultimately, the ALJ concluded that Plaintiff "has not been under a disability, as defined in the Social Security Act, from August 4, 2016, through the date of this decision." See id. at PageID.178–79 (first citing 20 C.F.R. § 404.1520(g) ; and then citing 20 C.F.R. § 416.920(g) ).
C.
Magistrate Judge Patti reviewed the order under 42 U.S.C. § 405(g). See ECF No. 25 at PageID.830–47.
2Section 405(g) provides, as relevant:
The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive, and where a claim has been denied by the Commissioner of Social Security or a decision is rendered .... the court shall review only the question of conformity with such regulations and the validity of such regulations.
42 U.S.C. § 405(g). Thus, 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) ).
3 According to the Supreme Court, "Substantial evidence ... is more than a mere scintilla. It means—and means only—such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Biestek v. Berryhill, ––– U.S. ––––, 139 S. Ct. 1148, 1154, 203 L.Ed.2d 504 (2019) ; accord Rogers, 486 F.3d at 241.
4 In deciding whether substantial evidence supports the ALJ's decision, this Court does "not try the case de novo, resolve conflicts in evidence, or decide questions of credibility." Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007) ; Rogers, 486 F.3d at 247 ("It is of course for the ALJ, and not the reviewing court, to evaluate the credibility of witnesses, including that of the claimant.").
5 Although the substantial-evidence standard is deferential, it is not trivial. This 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, 71 S.Ct. 456, 95 L.Ed. 456 (1951) ).
6 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 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997) ).
7 But "a decision of the Commissioner will not be upheld [if] the SSA fails to follow its own regulations and [if] 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) ).
III.
8 Under Federal Rule of Civil Procedure 72, a party may object to and seek review of a magistrate judge's report and recommendation. See Fed. R. Civ. P. 72(b)(2). If a party objects, "[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3). The parties must state any objections with specificity within a reasonable time. Thomas v. Arn, 474 U.S. 140, 151, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) (citation omitted).
9 Parties cannot "raise at the district court stage new arguments or issues that were not presented" before the magistrate judge's final report and recommendation. See Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000).
10 When reviewing a report and recommendation de novo, this Court must review at least the evidence that was before the magistrate judge. See Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the evidence, this Court is free to accept, reject, or modify the Magistrate Judge's findings or recommendations. Fed. R. Civ. P. 72(b)(3) ; Peek v. Comm'r of Soc. Sec., 585 F.Supp.3d 1014, 1017–18 (E.D. Mich. 2021).
As discussed herein, this Court finds Judge Patti did not err in finding that substantial evidence supports all the ALJ's findings.
IV.
The R&R recommends that this Court conclude that the ALJ did not err in his analysis of (1) Dr. Policherla's opinion, ECF No. 25 at PageID.824–39; (2) Thomas Flake's opinion, id. at PageID.839–43; (3) Kathy Morrow's opinion, id.; or (4) Plaintiff's impairments, id. at PageID.843–46.
Plaintiff has responded with 12 objections, each of which will be addressed in turn.
A.
11 First, Plaintiff objects that "the Magistrate Judge utilized the wrong legal framework to address the claimant's appeal." ECF No. 26 at PageID.850. Defendant responds that "Magistrate Judge Patti utilized the correct legal framework in addressing Plaintiff's arguments." ECF No. 27 at PageID.865.
Plaintiff's claim that Judge Patti demonstrated "an incorrect and incomplete comprehension of the role of [20 C.F.R. § 404.1520c ] legally," ECF No. 26 at PageID.850), is unavailing. In assessing the ALJ's analysis of the medical opinion evidence, Judge Patti correctly indicated that supportability and consistency of a medical opinion are the "most important" factors an ALJ must consider. 20 C.F.R. § 404.1520c ("The most important factors we consider when we evaluate the persuasiveness of medical opinions and prior administrative medical findings are supportability (paragraph (c)(1) of this section) and consistency (paragraph (c)(2) of this section)."). Contrary to Plaintiff's argument, see ECF No. 26, PageID.851–52, Judge Patti neither indicated that these factors were "determinative," nor concluded that if the ALJ finds an opinion inconsistent with other record evidence, the rest of the factors are "eliminated." Rather, Judge Patti correctly indicated that an ALJ must "us[e] the following factors: supportability, consistency, relationship with the claimant, and specialization, with supportability and consistency being most important." ECF No. 25 at PageID.835.
Plaintiff misinterprets the regulation when he argues that the ALJ was required "to weigh all factors in combination." See ECF No. 26 at PageID.852. As Judge Patti understood, the regulations designate two of the factors as "most important": consistency and supportability. Id. at PageID.841 (citing 20 C.F.R. § 404.1520c(a) ).
Contrary to Plaintiff's argument, nothing suggests that Judge Patti misunderstood the holding in Blakley v. Commissioner of Social Security, 581 F. 3d 399, 406 (6th Cir. 2009), which he accurately quoted as follows: "[I]f 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 the opposite conclusion." ECF No. 25 at PageID.832 (internal quotations and citation omitted).
Plaintiff asserts that Judge Patti misunderstood Blakley because he "fail[ed] to address the fact that when the Commissioner fails to follow its own Regulations then remand is required." See ECF No. 26 PageID.851. But Judge Patti clearly understood Plaintiff's argument that "had the ALJ properly evaluated the medical opinions of record in accordance with 20 C.F.R. § 404.1520c, he would have found the opinion of Plaintiff's treating physician, Dr. Haranath Policherla, most persuasive." See ECF No. 25 at PageID.833. Judge Patti's determination that the ALJ had correctly evaluated the medical opinions, as required by 20 C.F.R. § 404.1520c, does not suggest that Judge Patti misunderstood the regulations or the standards of review.
At bottom, Plaintiff seems to suggest that his relationship with his treating source, Dr. Policherla, should have carried more weight with the ALJ and, ultimately, Judge Patti. See ECF No. 26 at PageID.851–52. But as Judge Patti explained, under the current regulations, "an ALJ need not afford any specific weight to the opinion of a treating source. And supportability and consistency, not treatment or examining relationship, are the most important factors." ECF No. 25 at PageID.841 (citing 20 C.F.R. § 404.1520c ).
Because Judge Patti neither misapplied the correct legal framework nor applied the wrong one, Plaintiff's first objection will be overruled.
B.
12 Second, referencing Objection 1, Plaintiff objects that "[i]t is error to claim that the Dr. Policherla's opinion was inconsistent with the record as a whole." ECF No. 26 at PageID.852. Defendant responds that "[t]he ALJ did not err in considering Dr. Policherla's finding that Plaintiff had nearly full strength in his arms and legs." ECF No. 27 at PageID.868 (emphasis omitted).
Judge Patti did not err in finding that "the ALJ properly noted that Dr. Policherla's opinion of total disability is inconsistent with and unsupported by his own treatment records, which note full and nearly full strength in Plaintiff's upper and lower extremities, as well as toe/heel walking and tandem gait within the normal limits." ECF No. 25 at PageID.836 (citations omitted).
Plaintiff argues that reference to his nearly full muscle strength was an error, because his "inability to work is not related simply to muscle strength" but rather to a "combination of impairments." See ECF No. 26 at PageID.852. But the ALJ did not suggest that Dr. Policherla's opinion was unpersuasive "simply" because the doctor had observed nearly full muscle strength upon exam. On the contrary, as Judge Patti underscored, see ECF No. 25 at PageID.836–37, the ALJ also cited Dr. Policherla's observation of a normal gait, his conservative treatment recommendation, and the inconsistent opinion of consultative examiner Dr. Shelby-Lane, see ECF No. 15 at PageID.175. In this way, the ALJ's analysis was perfectly appropriate, as Judge Patti reasonably concluded.
Because Judge Patti correctly analyzed Dr. Policherla's opinion, Plaintiff's objection will therefore be overruled. See Rice v. Saul, No. 20-10500, 2021 WL 1822309, at *7 (E.D. Mich. Feb. 23, 2021) ("The ALJ provided a sufficient analysis under [20 C.F.R.] § 404.1520c," by completing a "thorough discussion" of the record evidence and "cit[ing] the treating records showing a full range of motion in all joints, a normal gait, intact strength, and intact sensation in the upper and lower extremities"), report and recommendation adopted sub nom. Rice v. Comm'r of Soc. Sec., No. 20-10500, 2021 WL 1248292 (E.D. Mich. Apr. 5, 2021).
C.
13 Third, referencing Objection 1, Plaintiff objects that "the Magistrate Judge violate[d] the law in trying to play doctor instead to [sic] applying the mandates of the Regulations." ECF No. 26 at PageID.853. Defendant responds that "[t]he ALJ did not ‘play doctor’ in formulating the RFC finding." ECF No. 27 at PageID.869 (emphasis omitted).
Although not entirely clear, Plaintiff's third objection seemingly suggests that the ALJ "played doctor" when he declined to adopt Dr. Policherla's opinion that Plaintiff could not walk even one city block; sit, stand or walk any amount of time; or lift any amount of weight. See ECF Nos. 15 at PageID.664; 26 at PageID.852–53.
The ALJ did not "play doctor" when he found Plaintiff could do a range of sedentary work. See ECF No. 15 at PageID.172. On the contrary, the ALJ's RFC physical finding was based on the opinion of consultative examiner Dr. Shelby-Lane, who opined that Plaintiff "has frequent limitations with standing, walking, lifting, pushing, pulling, reaching, and bending," and needed a cane for balance. See id. at PageID.647. The ALJ's RFC finding incorporated these limitations. See id. at PageID.172 (limiting Plaintiff to sedentary work, including only occasional walking and standing; only occasional balancing, stooping, crouching and climbing stairs; no overhead reaching; and use of an assistive device for ambulation and while standing). In this way, substantial evidence supported the ALJ's physical RFC finding. See McGrew v. Comm'r of Soc. Sec., 343 F. App'x 26, 31–32 (6th Cir. 2009) (unpublished) ("The ALJ's [RFC] determination was primarily based on the November 2003 assessment of Dr. Roy Starkey, a state agency physician .... [which] constitutes substantial evidence supporting the ALJ's [RFC] determination.").
Because substantial evidence supported the ALJ's decision, Plaintiff's third objection will be overruled.
D.
14 Fourth, referencing Objection 1, Plaintiff objects that "[t]he Magistrate Judge [incorrectly] states that Dr. Policherla declined to complete a large portion of the questionnaire." ECF No. 26 at PageID.854. Defendant responds that "[t]he ALJ did not err in considering Plaintiff received conservative treatment." ECF No. 27 at PageID.870 (emphasis omitted).
Plaintiff argues that the ALJ erred in considering that Plaintiff's "spine disorders were treated conservatively with medications," see ECF No. 15 at PageID.176, because Dr. Policherla testified at a deposition that Plaintiff's herniations of the thoracic spine were not treatable with surgery or shots and called for medication and "immobilization mostly," see id. at PageID.524 (emphasis omitted).
This argument fails for two reasons. First, though Plaintiff cited to Dr. Policherla's testimony in his brief, see ECF No. 20 at PageID.757, and his reply brief, see ECF No. 24 at PageID.820, he did not directly argue that the ALJ erred in relying on Plaintiff's "conservative treatment" for spinal disorders. Consequently, Plaintiff waived this argument. Swain v. Comm'r of Soc. Sec., 379 F. App'x 512, 517–18 (6th Cir. 2010) (unpublished) ("A claim raised for the first time in objections to a magistrate judge's report is deemed waived." (cleaned up)).
Second, the ALJ accepted Plaintiff's allegations that he suffered from disorders of the "cervical, thoracic and lumbar spine." See ECF No. 15 at PageID.170. In this way, Dr. Policherla's testimony that Plaintiff has limited treatment options for thoracic spine issues is only part of the picture. Indeed, Dr. Policherla's treatment records focused on Plaintiff's cervical and lumbar complaints but not thoracic issues. See, e.g., id. at PageID.680 (January 2018 examination with Dr. Policherla discussing lumbar spine disc protrusion and cervical radiculopathy but not thoracic issues); id. at PageID.683 (February 2018 examination with Dr. Policherla indicating lumbar radiculopathy and neck pain, but not thoracic issues); id. at PageID.687, 689, 690, 701 (March, April, May, and November 2018 examinations with Dr. Policherla indicating cervical radiculopathy, not thoracic issues). Therefore, regardless of Dr. Policherla's testimony about the limited treatment options for thoracic spine issues, Plaintiff's conservative treatment for lumbar and cervical spine issues support the ALJ's finding. See Dahlinghaus v. Comm'r of Soc. Sec., No. 1:13-CV-447, 2014 WL 12577009, at *8 (S.D. Ohio Aug. 29, 2014) (affirming ALJ decision discounting medical opinion under prior regulations in part because opinion was inconsistent with the claimant's "relatively effective" pain management with medication).
Because substantial evidence supported the ALJ's decision, Plaintiff's fourth objection will be overruled.
E.
15 Fifth, referencing Objection 1, Plaintiff objects that "[t]he Magistrate applied a distorted legal interpretation of the regulation" when he "interpreted the Regulation to exclude a significant portion of the Regulation," thereby "allow[ing] the ALJ to manipulate an inconsistency and the question of supportability." See ECF No. 26 at PageID.856. Defendant responds that "[t]he ALJ properly considered the opinion of consultative examiner Dr. Shelby-Lang." ECF No. 27 at PageID.871 (emphasis omitted).
In his fifth objection, Plaintiff argues that Dr. Shelby Lang's examination findings "confirm[ ] Dr. Policherla's opinion." ECF No. 26 at PageID.855. Because Dr. Shelby-Lang's examination findings were essentially normal, Plaintiff's argument fails. Dr. Shelby-Lang observed that Plaintiff had normal range of motion of the cervical spine; normal range of motion of the lumbar spine (except for slightly reduced flexion); normal range of motion of the shoulders (except for somewhat reduced abduction and forward elevation on the right); normal range of motion of the elbows; normal range of motion of the hips (except for slightly reduced forward flexion); slightly reduced knee flexion; and normal wrist, ankle, and hand motion. See ECF No.15 at PageID.649–50. In light of her findings, Dr. Shelby-Lane opined that Plaintiff would "have frequent limitations with": standing, walking, lifting, pushing, pulling, reaching, and bending. Id. at PageID.647. Doctor Shelby-Lang's opinion therefore persuaded the ALJ, who adopted it. See id. at PageID.175.
Plaintiff does not explain how Dr. Shelby-Lane's findings "confirm" Dr. Policherla's opinions, especially given that Dr. Shelby-Lane's own opinion diverged from Dr. Policherla's. Consequently, his argument fails. As Judge Patti put it, "Plaintiff provides no reason to believe the evidence the ALJ relied upon in support of his findings related to Dr. Shelby-Lane's opinion are inaccurate." ECF No. 25 at PageID.838. Plaintiff's cursory statement in his objections does not change the analysis. See ECF No. 26 PageID.855.
The second part of Plaintiff's fifth objection merely restates his argument that Judge Patti erred when he recognized that "supportability" and "consistency" are the "most important" factors in the medical-opinion analysis. See id. at PageID.856. That argument was addressed with Plaintiff's first objection.
Because substantial evidence supported the ALJ's decision, Plaintiff's fifth objection will be overruled.
F.
16 Sixth, referencing Objection 1, Plaintiff objects that "[t]he Magistrate Judge fail[ed] to adhere to the logic imposed on Dr. Policherla" by affirming the ALJ's position regarding Dr. Flake's opinion. See ECF No. 26 at PageID.856. Defendant responds that "the ALJ properly considered the opinion of Dr. Flake." ECF No. 27 at PageID.873 (emphasis omitted).
The ALJ found that Dr. Flake's opinion that Plaintiff could do light work was "consistent with [the] examination[’s] findings," including normal heel-toe walking, normal tandem gait, and only mild changes in images of Plaintiff's spine. See ECF No. 15 at PageID.176. Then the ALJ concluded that Plaintiff was more limited than Dr. Flake had found and settled on a "sedentary" RFC. See id. at PageID.176.
17 Plaintiff argues that because the ALJ diverged from Dr. Flake's opinion, his "consistency" finding is unsupported. See ECF No. 26 at PageID.856. But an ALJ's finding that an opinion is persuasive does not require the ALJ to adopt the opinion in its entirety. See Reeves v. Comm'r of Soc. Sec., 618 F. App'x 267, 275 (6th Cir. 2015) (unpublished) ("Even whe[n] an ALJ provides ‘great weight’ to an opinion, there is no requirement that an ALJ adopt a state agency psychologist's opinions verbatim; nor is the ALJ required to adopt the state agency psychologist's limitations wholesale."); William D. v. Comm'r of Soc. Sec., No. 2:20-CV-5855, 2022 WL 190049, at *8 (S.D. Ohio Jan. 21, 2022) (favorably citing Reeves, 618 F. App'x 267 for this same principle, in the context of 20 C.F.R. § 404.1520c ).
As Judge Patti suggested, Plaintiff gains nothing from arguing that the ALJ erred in finding him more limited than Dr. Flake did. See ECF No. 25 at PageID.842–43 (citing Mosed v. Comm'r of Soc. Sec., No. 2:14-cv-14357, 2016 WL 6211288, at *7 (E.D. Mich. Jan. 22, 2016) for the notion that it is "curious and unavailing" for a plaintiff to argue that he was harmed by an ALJ assessing a more restrictive RFC).
Because substantial evidence supported the ALJ's decision, Plaintiff's sixth objection will be overruled.
G.
Seventh, referencing Objection 1, Plaintiff objects that the Magistrate Judge incorrectly "claim[ed] diagnoses are not limitations and [that] functionality determines disability." ECF No. 26 at PageID.857. Defendant responds that "the Magistrate Judge did not apply a different analysis to Dr. Policherla." ECF No. 27 at PageID.874 (emphasis omitted).
18 Plaintiff argues that Judge Patti "applies [two] different analyses when assessing Dr. Policherla's opinion as compared to Dr. Flake and K. Morrow." See ECF No. 26, PageID.857. This objection seemingly rehashes Plaintiff's disagreement with the ALJ's finding that Drs. Flake and Morrow issued prior administrative findings consistent with the record evidence, but Dr. Policherla issued an opinion that was inconsistent with the record evidence. See ECF No. 20 at PageID.767–68. "This challenge is not a proper objection to the Report and Recommendation, as required by Fed. R. Civ. P. 72(b), because it merely rehashes [Plaintiff]’s arguments." Bentley v. Colvin, No. 16-11314, 2017 WL 3768941, at *2 (E.D. Mich. Aug. 31, 2017).
Because Plaintiff's seventh objection is not proper, it will be overruled.
H.
19 Eighth, referencing objection 1, Plaintiff objects that the Magistrate Judge incorrectly analyzed a scrivener's error in Dr. Morrow's opinion. See ECF No. 26 at PageID.857–58. Defendant responds that "Dr. Morrow's scrivener's error is harmless." ECF No. 27 at PageID.874 (emphasis omitted).
Plaintiff's eighth objection focuses on Dr. Morrow referring to Plaintiff, who is a male, as "she." See ECF No. 26 at PageID.857–58. Plaintiff did not raise this argument to Judge Patti and, therefore, he waived it. Swain, 379 F. App'x at 517–18. Even so, Plaintiff does not explain how that scrivener's error harmed him, as is his burden. See Shinseki v. Sanders, 556 U.S. 396, 409–10, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009) (holding that the party attacking the agency's decision has the burden of establishing that the error was harmful). The remainder of this objection echoes the arguments Plaintiff raised in his first objection.
Several scholars have studied gender disparities in numerous issues. See, e.g. , Amanda Friesen, Ryan Burge & Kylee Britzman, Digital Segregation: Gender, Occupation, and Access to Politics , 39 Soc. Sci. Comput. Rev. 38 (2019) (suggesting that gender differences in political engagement might be due to selection of occupation). Although some might find the misuse of a gender pronoun to be offensive, no legal authority indicates that such misuse warrants overruling an ALJ's findings under the substantial-evidence standard. Even so, Plaintiff has not attempted to demonstrate what, if any, prejudicial effect the "she" pronoun has had on the ALJ's findings.
Because Plaintiff's eighth objection is not proper and fails on the merits, it will be overruled.
I.
20 Ninth, referencing objection 1, Plaintiff objects that "[t]he Magistrate Judge's position [that substantial evidence supported the ALJ's finding that the opinions of Drs. Flake and Morrow were consistent] is legally invalid because the legal framework does not comply with the written Regulation promulgated by the Commissioner" ECF No. 26 at PageID.858. Defendant responds that "[t]he Magistrate Judge reasonably determined that ‘diagnoses are not limitations.’ " ECF No. 27 at PageID.875 (emphasis omitted).
Plaintiff's ninth objection seemingly rehashes his argument that the ALJ should have found Dr. Policherla's opinion more persuasive than he did, and it seemingly concerns Plaintiff's disagreement with Judge Patti's finding that "diagnoses are not limitations." See ECF No. 26 at PageID.857.
Judge Patti reasonably found that Dr. Flake's failure to mention hip or right shoulder diagnoses had no bearing on the RFC finding, because Plaintiff had failed to show any functional limitations stemming from those conditions beyond those accounted for in the RFC finding. See ECF No. 25 at PageID.842. Judge Patti was correct that "disability is determined by the functional limitations imposed by a condition, not the mere diagnosis of it." See Hill v. Comm'r of Soc. Sec., 560 F. App'x 547, 551 (6th Cir. 2014) (unpublished); ECF No. 25 at PageID.842.
Because substantial evidence supported the ALJ's decision, Plaintiff's ninth objection will be overruled.
J.
Tenth, referencing objection 1, Plaintiff objects that "[t]he Magistrate Judge [incorrectly] dismisse[d] the inconsistency in the ALJ decisions relative to claimant's mental impairments." See ECF No. 26 at PageID.859. Defendant responds that "[t]he Magistrate Judge correctly applied 20 C.F.R. § 404.1520c in relation to Dr. Morrow." ECF No. 27 at PageID.876 (emphasis omitted).
Plaintiff's tenth objection seemingly rehashes his argument that Judge Patti incorrectly found that supportability and consistency are the "most important" factors in the opinion analysis, this time regarding Dr. Morrow. See ECF No. 26 at PageID.859. As explained, Judge Patti correctly determined that supportability and consistency—not examining relationship or specialty—are the focus of 20 C.F.R. § 404.1520c. See discussion supra Section IV.A.
Because Judge Patti neither misapplied the correct legal framework nor applied the wrong one, Plaintiff's tenth objection will be overruled.
K.
Eleventh, referencing objection 1, Plaintiff objects that Judge Patti gave insufficient weight to Dr. Policherla's opinion in comparison to Dr. Morrow's opinion. See ECF No. 26 at PageID.860. Defendant responds that "[t]he Magistrate Judge correctly applied 20 C.F.R. § 404.1520c in relation to Dr. Morrow." ECF No. 27 at PageID.876 (emphasis omitted).
Plaintiff's eleventh objection seemingly rehashes his argument that Judge Patti incorrectly found that supportability and consistency are the "most important" factors in the opinion analysis, as it again advances the notion that Dr. Policherla's treating relationship with Plaintiff should have carried the day. See ECF No. 26 at PageID.860.
As explained, Judge Patti correctly determined that supportability and consistency—not examining relationship or specialty—are the focus of 20 C.F.R. § 404.1520c. See discussion supra Sections IV.A, IV.K.
Because Judge Patti neither misapplied the correct legal framework nor applied the wrong one, Plaintiff's eleventh objection will be overruled.
L.
21 Twelfth, referencing objection 1, Plaintiff objects that substantial evidence does not support the ALJ's weighing of Dr. Policherla's opinion "as to the severity of claimant's disability," because "only Dr. Policherla is able to address [it] given his specialty." See ECF No. 26 at PageID.861. Defendant responds that "[t]he Magistrate Judge reasonably determined that Plaintiff failed to show additional mental or physical limitations by making general reference to Northwest Psychiatric Counseling Center records." ECF No. 27 at PageID.877 (emphasis omitted).
In addressing Plaintiff's argument that Dr. Policherla was uniquely qualified to address his physical and mental impairments in combination and, therefore, that the ALJ should have been more persuaded by that opinion, Judge Patti reasonably determined that "Plaintiff only directs the Court generally to the records from Northwest Psychiatric Counseling Center, making no specific connection between information included in those records and Dr. Policherla's opinion or his RFC." See ECF No. 25 at PageID.845.
Plaintiff's objection points to one treatment record from Northwest Psychiatric Counseling Center that "reflect[s] depression and anxiety." See ECF No. 26 at PageID.861 (citing ECF No. 15 at PageID.636). But nothing in the record supports Plaintiff's argument that this one record "confirms the validity of Dr. Policherla's opinion as to the severity of [Plaintiff's] disability...." See ECF No. 26 at PageID.861.
The ALJ found that Plaintiff had the severe impairment of depression, and he reasonably relied on Dr. Morrow's opinion in finding that Plaintiff could perform the mental demands of simple, routine work. See ECF No. 15 at PageID.172.
Because substantial evidence supported the ALJ's decision, Plaintiff's twelfth objection will be overruled.
M.
Accordingly, it is ORDERED that Plaintiff's objections, ECF No. 26, are OVERRULED.
Further, it is ORDERED that the Magistrate Judge's Report and Recommendation, ECF No. 25, is ADOPTED.
Further, it is ORDERED that Plaintiff's Motion for Summary Judgment, ECF No. 20, is
DENIED.
Further, it is ORDERED that Defendant's Motion for Summary Judgment, ECF No. 22, is GRANTED.
Further, it is ORDERED that the Commissioner's Order, ECF No. 15, is AFFIRMED.
Further, it is ORDERED that the Complaint, ECF No. 1, is
DISMISSED WITH PREJUDICE.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF No. 20), GRANT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF No. 22) and AFFIRM THE COMMISSIONER'S DECISION
Anthony P. Patti, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION : For the reasons that follow, it is RECOMMENDED that the Court DENY Plaintiff's motion for summary judgment (ECF No. 20), GRANT Defendant's motion for summary judgment (ECF No. 22), and AFFIRM the Commissioner's decision.
II. REPORT
Plaintiff1 Mohammed Mason Nasser brings this action under 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3) for review of a final decision of the Commissioner of Social Security (Commissioner) denying his applications for Disability Insurance (DI) benefits and Supplemental Security Income (SSI). This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's motion for summary judgment (ECF No. 20), the Commissioner's cross-motion for summary judgment (ECF No. 22), Plaintiff's reply (ECF No. 24), and the administrative record (ECF No. 15).
A. Background and Administrative History
1. Prior claims
Plaintiff filed prior claims for DI benefits and SSI on August 14, 2014. (See ECF No. 15, PageID.234.) A hearing regarding these prior claims was held on June 9, 2016, and on August 8, 2016, Administrative Law Judge (ALJ) Carol Guyton found that Plaintiff was not disabled within the meaning of the Social Security Act. (ECF No. 15, PageID.231-252.)
2. Current claims and appeal
In his October 27, 2017 applications for disability insurance benefits (DIB) and SSI, Plaintiff alleges his disability began on February 4, 2014, at the age of 31. (ECF No. 15, PageID.402-412.) In his disability report, he lists lower back injury, right shoulder injury, hip injury-anterosuperior acetabular laberal tear – right, neck pain, depression and mental issues, high blood pressure, high cholesterol, diabetes, thoracic disc herniation, and lumbar disc herniation as limiting his ability to work. (ECF No. 15, PageID.288.) His applications were denied on March 6, 2018. (ECF No. 15, PageID.287-288.)
Plaintiff requested a hearing by an ALJ. (ECF No. 15, PageID.305-306.) ALJ Roy E. LaRoche, Jr. held hearings on March 6 and May 1, 2019, at which Plaintiff and a vocational expert (VE), Diane Regan, testified. (ECF No. 15, PageID.185-230.) On May 29, 2019, ALJ LaRoche, Jr. issued an opinion, which determined that Plaintiff was not disabled within the meaning of the Social Security Act from August 8, 2016,2 the date of the prior unfavorable decision, through the date of the decision. (ECF No. 15, PageID.164-184.)3
Plaintiff submitted a request for review of the hearing decision/order. (ECF No. 15, PageID.391-401.) However, on May 13, 2020, the Appeals Council denied Plaintiff's request for review. (ECF No. 15, PageID.153-158.) Thus, ALJ LaRoche, Jr.’s decision became the Commissioner's final decision.
Plaintiff timely commenced the instant action on June 30, 2020. (ECF No. 1.)
B. Plaintiff's Medical History
The administrative record contains approximately 201 pages of medical records, which were available to the ALJ at the time of his May 29, 2019 decision. (ECF No. 15, PageID.543-744 [Exhibits B1F-B19F].) These materials will be discussed in detail, as necessary, below.
C. The Administrative Decision
Pursuant to 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), at Step 1 of the sequential evaluation process, the ALJ found that Plaintiff had not engaged in substantial gainful activity since August 4, 2016, his alleged onset date. (ECF No. 15, PageID.170.) At Step 2 , the ALJ found that Plaintiff had the following severe impairments: disorders of the cervical, thoracic and lumbar spine, obesity, diabetes mellitus, major depressive disorder, and personality disorder. (ECF No. 15, PageID.170.) At Step 3 , the ALJ found Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. (ECF No. 15, PageID.170-171.) Between Steps 3 and 4 of the sequential process, the ALJ evaluated Plaintiff's residual functional capacity (RFC) and determined that Plaintiff had the RFC:
The claimant's "residual functional capacity" is an assessment of the most the claimant can do in a work setting despite his or her physical or mental limitations. 20 C.F.R. §§ 404.1545(a), 416.945(a) ; Howard v. Comm'r of Soc. Sec. , 276 F.3d 235, 239 (6th Cir. 2002).
to perform sedentary work ... except occasional pushing and pulling with the bilateral lower extremities; requires the ability to stand for 2-3 minutes after 30 minutes of sitting; can occasionally balance, stoop, crouch and climb ramps and stairs; no climbing ladders, ropes, or scaffolds; no kneeling or crawling; no exposure to unprotected heights and dangerous moving machinery; no overhead reaching with the bilateral upper extremities; frequently perform handling and fingering with the bilateral upper extremities; requires use of a handheld assistive device for ambulation and while standing; limited to simple and routine tasks, involving only simple, short instructions and simple work-related decisions with few, if any, workplace changes; and no contact with the general public.
(ECF No. 15, PageID.172-177.) At Step 4 , the ALJ determined that Plaintiff was unable to perform any past relevant work. (ECF No. 15, PageID.177.) At Step 5 , considering Plaintiff's age, education, work experience, and RFC, the ALJ determined that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform, such as inspector and sorter. (ECF No. 15, PageID.177-178.) The ALJ therefore concluded that Plaintiff had not been under a disability, as defined in the Social Security Act, since August 8, 2016. (ECF No. 15, PageID.178-179.)
D. Standard of Review
The District Court has jurisdiction to review the Commissioner's final administrative decision pursuant to 42 U.S.C. § 405(g). 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) ("The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive ...."). Under this standard, "[s]ubstantial 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 and Human Servs. , 25 F.3d 284, 286 (6th Cir. 1994) ). In deciding whether substantial evidence supports the ALJ's decision, the Court does "not try the case de novo, resolve conflicts in evidence, or decide questions of credibility." Bass v. McMahon , 499 F.3d 506, 509 (6th Cir. 2007) ; Rogers , 486 F.3d at 247 ("It is of course for the ALJ, and not the reviewing court, to evaluate the credibility of witnesses, including that of the claimant.").
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, 71 S.Ct. 456, 95 L.Ed. 456 (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 (6th Cir. 2009) (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 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) ).
E. Analysis
Plaintiff's motion, though poorly edited, essentially argues that had the ALJ properly evaluated the medical opinions of record in accordance with 20 C.F.R. § 404.1520c, he would have found the opinion of Plaintiff's treating physician, Dr. Haranath Policherla, most persuasive. In so doing, he asserts that the doctors whose opinions the ALJ found more persuasive did not and could not address the intersection between his mental and physical impairments, or his diabetes mellitus, C-Pap, or high blood pressure, as required by the regulations. (ECF No. 20, PageID.761-778.) The Commissioner opposes Plaintiff's motion, arguing that the ALJ properly applied the regulations for analysis of medical opinion evidence, and that substantial evidence supports his findings. (ECF No. 22, PageID.785-786, 790-809.) In reply, Plaintiff reiterates the arguments made in his summary judgment motion. (ECF No. 24, PageID.813-824.)
Among other errors, and contrary to Fed. R. Civ. P. 5.2(a)(1), Plaintiff's motion for summary judgment lists Plaintiff's full social security number. (ECF No. 20, PageID.752.) This is all too common in Social Security cases, and is especially egregious here as the Court previously warned Plaintiff's counsel (ECF No. 8, PageID.126-127) of the same mistake in the caption of Plaintiff's complaint (see ECF No. 1.)
1. The Court should find no error in the ALJ's analysis of Dr. Policherla's opinion
In February 2019, Plaintiff's treating physician Dr. Policherla completed a physical RFC questionnaire, indicating that he had treated Plaintiff on a monthly basis since September 2017, and listing Plaintiff's diagnoses related to his thoracic, lumbar, and cervical spine. (ECF No. 15, PageID.664.) Referencing a number of Plaintiff's MRIs, Dr. Policherla opined that Plaintiff could not sit or stand for any amount of time at one time, and could never lift any weight, look down, look up, twist, stoop, crouch/squat, climb ladders, or climb stairs. (ECF No. 15, PageID.664-667.) He also declined to complete a large portion of the questionnaire, opting instead to write that Plaintiff was unable to work, with an arrow down the form. (ECF No. 15, PageID.666-667.)
The ALJ found the opinion "unpersuasive," stating:
Haranath Policherla, M.D. opined the claimant cannot walk any city blocks; cannot sit, stand, or walk any amount of time; cannot lift any amount of weight; and never perform postural activities (Ex. B16F/). The undersigned finds this opinion unpersuasive. Specifically, Dr. Policherla's opinion is not supported by his treatment records. His records revealed 5/5 power in the left upper and lower extremities and 4 to 5/5 in the right upper and lower extremities proximally and distally (Ex. B18F/2). The claimant had 5/5 power in the left lower extremity and 4 to 5/5 in the right lower extremity (Id.). Further, the claimant's toe-walking, heel-walking, and tandem gait were within normal limits. (Ex. B18F/24, B18F/26, F18F/27). The opinion is also not consistent with the consultative examination of Dr. Shelby-Lane (Ex. B10F/3).
A deposition of Dr. Policherla is also present in the evidence of record, where he noted the claimant was unable to
work and would miss more than two days per month if he tried to work (Ex. B20E/11). The undersigned finds the statements of Dr. Policherla in the deposition unpersuasive. Further, the issue of disability is a determination that is reserved for the Commissioner of Social Security ( 20 C.F.R. 404.1527(d)(2), 416.927(d) ).
(ECF No. 15, PageID.175-176.)
a. Standard
As Plaintiff filed his applications after March 27, 2017, the ALJ reviewed the subject medical opinions according to the standards provided in 20 C.F.R. § 404.1520c, which states that, "We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources." 20 C.F.R. § 404.1520c(a). Instead, an ALJ must evaluate the persuasiveness of the medical opinions submitted, and articulate the findings using the following factors: supportability, consistency, relationship with the claimant, and specialization, with supportability and consistency being the most important. 20 C.F.R. § 404.1520c.
Plaintiff acknowledges that this is the applicable regulation, but also cites to the previous one – 20 C.F.R. § 404.1527. (See, e.g. , ECF No. 20, PageID.766, 769, 775.) He hints that the old standard may, perhaps, have been a preferable one: "Prior to March 17 2017, the commission's regulations were clear and logical." (ECF No. 20, PageID.761.)
For several reasons, discussed below, the Court should that the ALJ properly evaluated Dr. Policherla's opinion in accordance with these regulations.
b. Dr. Policherla's own treatment records
First, the ALJ properly noted that Dr. Policherla's opinion of total disability is inconsistent with and unsupported by his own treatment records, which note full and nearly full strength in Plaintiff's upper and lower extremities (ECF No. 15, PageID.175 (citing ECF No. 15, PageID.674)), as well as toe/heel walking and tandem gait within the normal limits (ECF No. 15, PageID.175 (citing ECF No. 15, PageID.696, 698, 700).) Plaintiff seems to suggest that the opinion is supportable merely because, "Dr. Policherla performed extensive tests and treatment and clinical findings." (ECF No. 20, PageID.767.) But the fact that he performed tests and treatment and made clinical findings is not enough, no matter how "extensive;" his opinion needs to be internally consistent with the test results and treatment rendered. Additionally, as the ALJ stated in his RFC assessment prior to the analysis of Dr. Policherla's opinion, despite Plaintiff's and Dr. Policherla's assertions regarding the severity of his spinal impairments, Dr. Policherla prescribed conservative treatment, including continuation with Norco and a follow-up visit with his primary care provider for diabetes control. (ECF No. 15, PageID.174 (citing ECF No. 15, PageID.687).) See Rudd v. Comm'r of Soc. Sec. , 531 F. App'x 719, 725 (6th Cir. 2013) (conservative treatment a valid consideration when forming an RFC assessment); see also Athey v. Comm'r of Soc. Sec. , No. 13-cv-12528, 2014 WL 4537317, at *4 (E.D. Mich. Sept. 11, 2014) (reasoning that it is appropriate to read an ALJ's decision as a whole); Rice v. Barnhart , 384 F.3d 363, 370 n.5 (7th Cir. 2004).
c. Opinion by Cynthia Shelby-Lane, M.D.
Dr. Policherla's opinion is also inconsistent with that of consultative examiner Dr. Shelby-Lane, as the ALJ found. (ECF No. 15, PageID.175 (citing ECF No. 15, PageID.646).) On January 31, 2018, Dr. Shelby-Lane conducted a consultative examination of Plaintiff and a review of his medical records, including MRIs, and found:
LOWER BACK INJURY, RIGHT SHOULDER INJURY, HIP INJURY, NECK PAIN, THORACIC DISC HERNIATION AND LUMBAR DISC HERNIATION : The examinee has a history of chronic pain due to previous injuries. On exam today, he is using a back brace and cane. He has a limp on the right side. He was not willing to do heel walk or toe walk. He has decreased range of motion of the right shoulder joint and right knee joint and chronic ongoing pain. He is taking multiple medications for the problem.
(ECF No. 15, PageID.647.) On the basis of these findings, she provided the following Medical Source Statement (MSS):
Based upon today's exam, including the history and physical exam, the examinee has frequent limitations with standing, walking, lifting, pushing, pulling, reaching, and bending due to the findings noted above, which includes use of a cane for balance and support and a limp on the right, use of a back brace, slow execution of tandem walk, and not willing to due [sic] heel walk or toe walk because of pain on the right side, decreased range of motion of the shoulder joint (0-120), and decreased range of motion of the right knee (0-140).
(ECF No. 15, PageID.647.)
The ALJ found Dr. Shelby-Lane's MSS persuasive, stating:
Dr. Shelby-Lane's opinion is supported by her examination of the claimant, which revealed the need to use of a cane for balance and support, a limp on the right, use of a back brace, slow execution of tandem walk, and decreased range of motion of the shoulder right knee (Id.). The opinion is also consistent with the objective evidence in the record that reveals diabetic sensory neuropathy and disorders of the cervical, lumbar, and thoracic spine (Ex. B12F, B14F, B15F, B18F/9, B18F/13).
(ECF No. 15, PageID.175.)
While Plaintiff challenges the ALJ's finding that Dr. Shelby-Lane's opinion is persuasive, he acknowledges that she did conduct an examination, and cursorily asserts that she confirmed Dr. Policherla's opinion. (ECF No. 20, PageID.769, 771-772; ECF No. 24, PageID.821-822.) This is curious. Although Dr. Shelby-Lane lists essentially lists the same diagnoses and/or symptoms as Dr. Policherla (compare ECF No. 15, PageID.647 with ECF No. 15, PageID.664), her opinion diverges from rather than confirms his. Whereas Dr. Shelby-Lane lists frequent limitations and the need for a cane, Dr. Policherla opines that Plaintiff is entirely precluded from work. And Plaintiff provides no reason to believe the evidence the ALJ relied upon in support of his findings related to Dr. Shelby-Lane's opinion are inaccurate. Instead, Plaintiff argues that Dr. Policherla's specialty is superior to that of Dr. Shelby-Lane, who is board certified in emergency medicine. But this is only one consideration, going to the weight of the opinion, and does not undermine the ALJ's findings regarding supportability and consistency, which are the two most important factors for evaluating medical opinion evidence. 20 C.F.R. § 404.1520c. In any case, this Court will not re-weigh the opinions, Reynolds v. Comm'r of Soc. Sec. , 424 F. App'x 411, 414 (6th Cir. 2011), and under the current regulations, the Commissioner "will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources," 20 C.F.R. § 404.1520c(a). d. Disability determination is an issue reserved to the Commissioner
Finally, the ALJ properly discounted Dr. Policherla's opinion insofar as he asserted Plaintiff would be precluded from all work. As the ALJ stated (ECF No. 15, PageID.176), the determination of disability itself is an issue reserved to the Commissioner. See 20 C.F.R. § 404.1520b(c)(3) ; 20 C.F.R. § 404.1527(d).
2. The Court should also find no error in the ALJ's analysis of the opinions by Thomas Flake, M.D., and Kathy Morrow, Ph.D.
a. Prior administrative medical findings
On March 6, 2018, state agency medical consultant Dr. Flake considered the evidence of record and rendered a prior administrative medical finding on Plaintiff's physical RFC which adopted the prior ALJ's August 8, 2016 decision that Plaintiff could perform light work. (ECF No. 15, PageID.264-268.) State agency consultant Dr. Morrow did the same on December 28, 2017, adopting the prior ALJ's mental RFC. (ECF No. 15, PageID.282-283.)
b. ALJ addressed both opinions
The ALJ addressed both opinions, stating:
State agency consultant, Thomas Flake, MD adopted the prior ALJ finding that the claimant could perform light work; occasional postural activities except never kneeling, crawling, or climbing ladders, ropes, or scaffolds; limited reaching in all directions including overhead; an[d] must avoid all exposure to hazards (Ex. B3A/7, B4A/7). Dr. Flake's opinion is supported by [his] area of specialty, programmatic knowledge and his review of the available medical evidence that reflects a history of diabetes mellitus with sensory neuropathy, and disorders of the cervical, lumbar spine disorders and cervical radiculopathy (Ex. B6F/1, B18F/9, B18F/13). It is also consistent with examination findings that the claimant's toe-walking, heel-walking, and tandem gait were within normal limits and mild changes to the claimant's spine (Ex. B12F, B14F, B15F, B18F/24, B18F/26, B18F/27). However, the evidence of record supports a sedentary exertional limitation due to the claimant's obesity, cervical radiculopathy, spine disorders, and diabetes with peripheral neuropathy (B12F, B14F, B15F, B18F/9, B18F/13).
State agency consultant, Kathy A. Morrow, Ph.D. also adopted the prior ALJ's findings and found the claimant has mild limitations in understanding, remembering, or applying information, moderate limitations in interacting with others, moderate limitations in concentration, persistence, or maintaining pace, and mild limitations in adapting or managing oneself. (Ex. B3A/5, B4A/5). The undersigned finds the opinion persuasive. Dr. Morrow's opinion is supported by her area of specialty, programmatic knowledge and [her] review of the available medical evidence at the time of [her] review. The evidence of record reflects a history of major depressive disorder and personality disorder; however, the claimant's examinations revealed normal thought processes, intact cognitive function, attentive and cooperative during examinations, and reported no suicidal thoughts (Ex. B8F/2, B8F/6, B9F/1, B18F/1). Dr. Morrow's opinion is also consistent with the claimant's mental health progress notes (Ex. B9F, B11F).
(ECF No. 15, PageID.176.)
c. Analysis
For the reasons that follow, the above represents a proper analysis of medical opinions under 20 C.F.R. § 404.1520c, with a focus on supportability and consistency.
Plaintiff asserts that the ALJ improperly relied on the opinions of Drs. Flake and Morrow because neither had a treatment relationship with him nor conducted an examination. (ECF No. 20, PageID.768-770; ECF No. 24, PageID.817-819.) But under the current regulations applicable to the analysis of medical opinions, an ALJ need not afford any specific weight to the opinion of a treating source, 20 C.F.R. § 404.1520c(a). And, supportability and consistency, not treatment or examining relationship, are the most important factors.
Further, in response to the Commissioner's motion for summary judgment, (essentially, Plaintiff's reply brief), Plaintiff argues that the ALJ should have found Dr. Policherla's opinion more persuasive than Dr. Morrow's because she has a Ph.D. rather than an M.D., like Dr. Policherla (ECF No. 24, PageID.818-819), is also unavailing. Again, supportability and consistency are the most important factors and, as described above, substantial evidence supports the ALJ's finding that Dr. Policherla's opinion is inconsistent with and unsupported by the record.
Additionally, Plaintiff cites to MRIs of his spine and shoulder from 2016, 2014, and 2013, and states:
The legal question presented is whether either Dr. Flake or Dr. Morrow reach diagnoses consistent with the clinical test above quoted. The diagnoses offered by Dr.’s [sic] Flake and Dr. Morrow include only "spine disorders". ECF No. 15, PageID 277 (Page 125) such a diagnosis is inconsistent with the precision of the MRI findings. It is therefore not persuasive and not supported by the objective evidence. "Spine disorders" as a potential diagnosis covers everything from cancer of the spine to minor sprains of the spine and does not address the right hip acetabular impingement syndrome, at all. Nor does it even mention the right shoulder.
(ECF No. 24, PageID.817.) But diagnoses are not limitations. Hill v. Comm'r of Soc. Sec. , 560 F. App'x 547, 551 (6th Cir. 2014) ("[D]isability is determined by the functional limitations imposed by a condition, not the mere diagnosis of it.") (citing Higgs v. Bowen , 880 F.2d 860, 863 (6th Cir. 1988) ). And Plaintiff offers no additional specific limitations related to hip and shoulder impairments, as is his burden. Jordan v. Comm'r of Soc. Sec. , 548 F.3d 417, 422-23 (6th Cir. 2008). Further, the ALJ included additional limitations in the RFC beyond those recommended by Dr. Flake. See Mosed v. Comm'r of Soc. Sec. , No. 2:14-cv-14357, 2016 WL 6211288, at *7 (E.D. Mich. Jan. 22, 2016), report and recommendation adopted by 2016 WL 1084679 (E.D. Mich. Mar. 21, 2016) ("Plaintiff's argument that the ALJ erred in assessing a more restrictive RFC than that opined by the State agency consultants is curious and unavailing.") (citing Warren v. Comm'r of Soc. Sec. , No. 13-cv-13523, 2014 WL 3708565, at *4 (E.D. Mich. July 28, 2014) ). It also bears noting that these MRIs are largely from pre-August 8, 2016.
3. Finally, the Court should find no error in the ALJ's consideration of Plaintiff's impairments
The second issue raised in Plaintiff's summary judgment motion is difficult to follow, but as far as I can discern, Plaintiff asserts that in assessing his RFC, the ALJ failed to consider all of his impairments in combination. (See ECF No. 20, PageID.772-777; ECF No. 24, PageID.823-824.) Plaintiff, citing SSR 96-8p, states:
Claimant has been denied psychiatric treatment based upon cost and has
sought alternative ways to receive psychotropic medication and has needed treatment for diabetes mellitus, is obese and these impairments combined with claimant's major distress disorder personality disorder along with his physical problems prohibit gainful employment.
Plaintiff cursorily references an inability to afford his medication but makes no further argument in this regard, thus waiving any associated claim of error. See McPherson v. Kelsey , 125 F.3d 989, 995-96 (6th Cir. 1997) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to ... put flesh on its bones.") (quotation marks and citations omitted).
Plaintiff first suggests that the ALJ should have credited the 2014 opinion of Mufid B. Al-Najjar, M.D. in assessing his mental RFC, which would have supported a finding of a "rigid lifestyle" incompatible with the ability to work. (ECF No. 20, PageID.772-773 (citing SSR 85-15).) However, as Defendant asserts (ECF No. 20, PageID.805-806), Dr. Al-Najjar proffered this opinion well before August 2016, and the ALJ concluded that Plaintiff's condition had changed since that time. (ECF No. 15, PageID.167, 172.) Further, the ALJ did not just manufacture his own mental RFC. Rather, he considered and incorporated Dr. Morrow's opinion, which Plaintiff unsuccessfully challenges, as well as Plaintiff's report that he felt 50 percent better with medication, and medical records through January 2018 showing medication changes to help stabilize his depression and inability to sleep. (ECF No. 15, PageID.175 (citing ECF No. 15, PageID.269, 283, 630, 634, 639, 655).)
Plaintiff next asserts that he received psychotropic medications by prescription from Dr. Policherla, and that Dr. Policherla's opinion is consistent with the records from Northwest Psychiatric Counseling Center, both of which provide the basis "for accepting Dr. Policherla's opinion and only Dr. Policherla's opinion." (ECF No. 20, PageID.773 (citing ECF No. 15, PageID.506); ECF No. 24, PageID.823-824 (citing ECF No. 15, PageID.482-643).) In other words, he asserts that Dr. Policherla is uniquely qualified to address the relationship between his physical and mental impairments. (ECF No. 20, PageID.773.) But Plaintiff only directs the Court generally to the records from Northwest Psychiatric Counseling Center, making no specific connection between information included in those records and Dr. Policherla's opinion or his RFC. And this argument ignores the ALJ's valid reasons, addressed in greater detail above, for finding Dr. Policherla's opinion unpersuasive.
Finally, Plaintiff argues that "[t]he ALJ cavalierly dismissed [his] obesity, C-Pap machine, high blood pressure, chronic pain even though the Regulations maintain the ALJ must assess whether the claimant can perform work activities on a sustained basis." (ECF No. 20, PageID.774-775.) The ALJ did, however, find obesity to be a severe impairment, and explicitly stated that he considered Plaintiff's obesity in combination with Plaintiff's other impairments to formulate the RFC in accordance with SSR 19-2p. (ECF No. 15, PageID.170, 174-175.) He also explicitly considered Plaintiff's allegations of pain, use of a C-Pap machine, and high blood pressure throughout his decision, but found that although Plaintiff's impairments could reasonably be expected to cause his alleged symptoms, Plaintiff's statements concerning the intensity and limiting effects of those symptoms was not entirely consistent with the other evidence of record. (ECF No. 15, PageID.170, 173-175.) And Plaintiff fails to meaningfully attack the ALJ's reliance on the evidence cited. Moreover, beyond simply implying a complete inability to work, Plaintiff offers no additional limitations confirmed by the record associated with these impairments. See Walters v. Comm'r of Soc. Sec. , 127 F.3d 525, 529 (6th Cir. 1997) ("[D]uring the first four steps, the claimant has the burden of proof; this burden shifts to the Commissioner only at Step Five.") (citing Young v. Sec'y of Health and Human Servs. , 925 F.2d 146, 148 (6th Cir. 1990) ); see also Jordan , 548 F.3d at 423 ("The claimant, however, retains the burden of proving her lack of residual functional capacity.").
Plaintiff cites to SSR 02-1p for the evaluation of obesity, which has been rescinded. SSR 19-2p states, in part:
We assess the RFC to show the effect obesity has upon the person's ability to perform routine movement and necessary physical activity within the work environment. People with an MDI of obesity may have limitations in the ability to sustain a work function over time. In cases involving obesity, fatigue may affect the person's physical and mental ability to sustain work activity. This may be particularly true in cases involving obesity and sleep apnea.
(2019 WL 2374244, at *4 (May 20, 2019) ).
I note that Plaintiff also references MRI results in his Statement of Facts, with the focus on a February 14, 2019 MRI of his thoracic spine. (ECF No. 20, PageID.756-757 (citing ECF No. 15, PageID.656).) The ALJ, however, discussed this MRI, explaining that it showed only minimal to mild findings (ECF No. 15, PageID.176 (citing ECF No. 15, PageID.656)), which is confirmed by a review of the record.
Accordingly, Plaintiff has failed to demonstrate error in the ALJ's analysis of his impairments.
F. Conclusion
Plaintiff has the burden of proof on statements of error. Plaintiff has not shown legal error that would upend the ALJ's decision, and the ALJ's decision is supported by substantial evidence. For the foregoing reasons, it is RECOMMENDED that the Court DENY Plaintiff's motion for summary judgment (ECF No. 20), GRANT Defendant's motion for summary judgment (ECF No. 22), and AFFIRM the Commissioner of Social Security's decision.
III. PROCEDURE ON OBJECTIONS
The parties to this action may object to and seek review of this Report and Recommendation, but are required to file any objections within 14 days of service, as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 72.1(d). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn , 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ; Howard v. Sec'y of Health & Human Servs. , 932 F.2d 505 (6th Cir. 1991). Filing objections that raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sec'y of Health & Hum. Servs. , 931 F.2d 390, 401 (6th Cir. 1991) ; Smith v. Detroit Fed'n of Teachers Local 231 , 829 F.2d 1370, 1273 (6th Cir. 1987). Pursuant to Local Rule 72.1(d)(2), any objections must be served on this Magistrate Judge.
Any objections must be labeled as "Objection No. 1," and "Objection No. 2," etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than 14 days after service of an objection, the opposing party may file a concise response proportionate to the objections in length and complexity. Fed. R. Civ. P. 72(b)(2) ; E.D. Mich. LR 72.1(d). The response must specifically address each issue raised in the objections, in the same order, and labeled as "Response to Objection No. 1," "Response to Objection No. 2," etc. If the Court determines that any objections are without merit, it may rule without awaiting the response.
Dated: February 16, 2022