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Dame v. Commissioner of Social Security

United States District Court, E.D. Michigan, Southern Division

February 22, 2017

SHERRY DAME, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Patricia T. Morris Magistrate Judge.

         OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, AFFIRMING THE FINDINGS OF THE COMMISSIONER, AND DISMISSING COMPLAINT

          DAVID M. LAWSON United States District Judge.

         The plaintiff filed the present action on January 6, 2016 seeking review of the Commissioner's decision denying the plaintiff's claim for a period of disability and disability insurance benefits under Title II of the Social Security Act. The case was referred to United States Magistrate Judge Patricia T. Morris under 28 U.S.C. § 636(b)(1)(B) and E.D. Mich. LR 72.1(b)(3). Thereafter, the plaintiff filed a motion for summary judgement to reverse the decision of the Commissioner and remand the case for an award of benefits or further consideration by the administrative law judge. The defendant filed a motion for summary judgment requesting affirmance of the decision of the Commissioner. Magistrate Judge Morris filed a report on October 18, 2016 recommending that the plaintiff's motion for summary judgment be denied, the defendant's motion for summary judgment be granted, and the decision of the Commissioner be affirmed. The plaintiff filed timely objections to the recommendation, and the defendant filed a response to the plaintiff's objections. This matter is now before the Court.

         The filing of timely objections to a report and recommendation requires the court to “make a de novo determination of those portions of the report or specified findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667 (1980); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This de novo review requires the court to re-examine all of the relevant evidence previously reviewed by the magistrate judge in order to determine whether the recommendation should be accepted, rejected, or modified in whole or in part. 28 U.S.C. § 636(b)(1).

         “The filing of objections provides the district court with the opportunity to consider the specific contentions of the parties and to correct any errors immediately, ” Walters, 638 F.2d at 950, enabling the court “to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute, ” Thomas v. Arn, 474 U.S. 140, 147 (1985). As a result, “‘[o]nly those specific objections to the magistrate's report made to the district court will be preserved for appellate review; making some objections but failing to raise others will not preserve all the objections a party may have.'” McClanahan v. Comm'r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (quoting Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987)).

         The Court has reviewed the file, the report and recommendation, the plaintiff's objections, and the defendant's response, and has made a de novo review of the administrative record in light of the parties' submissions.

         The plaintiff, who is now 58 years old, filed an application for disability insurance benefits on June 17, 2013, when she was 54. The plaintiff has an associates degree, and previously worked as a teacher's aide, cashier, and store laborer. In her application for disability insurance benefits, the plaintiff alleged a disability onset date of January 1, 2013. The plaintiff has been diagnosed with a variety of ailments, including degenerative disc disease, carpal tunnel syndrome, obesity, hypertension, acid reflux disease, diverticulosis, asthma, and diabetes mellitus.

         The plaintiff's application for a period of disability and disability insurance benefits was initially denied on October 16, 2013. The plaintiff timely filed a request for an administrative hearing, and on May 18, 2015 the plaintiff appeared before Administrative Law Judge (ALJ) Andrew G. Sloss. On May 22, 2015, ALJ Sloss issued a written decision in which he found that the plaintiff was not disabled. On November 11, 2015, the Appeals Council denied the plaintiff's request for review of the ALJ's decision. The plaintiff filed her complaint seeking judicial review on January 6, 2016.

         ALJ Sloss reached his conclusion that the plaintiff was not disabled by applying the five-step sequential analysis prescribed by the Secretary in 20 C.F.R. § 404.1520. He found that the plaintiff had not engaged in substantial gainful activity since the alleged onset date of January 1, 2013 (step one); the plaintiff suffered from degenerative disc disease, carpal tunnel syndrome, and obesity, impairments which were “severe” within the meaning of the Social Security Act (step two); none of those impairments alone or in combination met or equaled a listing in the regulations (step three); and the plaintiff is capable of performing past relevant work as a cashier, which was unskilled and required light exertion (step four).

         In applying the fourth step, the ALJ concluded that the plaintiff had the residual functional capacity to perform a range of light work, except that she can climb ramps or stairs frequently, but must avoid concentrated exposure to vibration. A vocational expert testified that the plaintiff's residual functional capacity allowed her to perform her previous work as a cashier, as that job is generally performed. Based on those findings, the ALJ concluded that the plaintiff was not disabled within the meaning of the Social Security Act.

         In her motion for summary judgment, the plaintiff advanced three arguments: (1) that the ALJ erred in assigning little weight to the opinions from treating sources Dr. Michael Giacalone and Nurse Practitioner Topaz Holloway; (2) that the ALJ improperly assessed and determined the plaintiff's credibility; and (3) that the ALJ erred in finding that the plaintiff was capable of performing the job of cashier. The magistrate judge considered each of those arguments in turn and rejected them. The plaintiff's objections to the report and recommendation do not contain any claim that the magistrate judge misapplied the law or committed specific error. Rather, the objections mainly are a rehash of the summary judgment arguments and an assertion of disagreement with the magistrate judge's conclusions.

         A. Objection One

         The plaintiff argues that the magistrate judge erred by concluding that the weight the ALJ gave to the plaintiff's treating physician's and treating nurse practitioner's opinions was supported by substantial evidence. She takes no issue that the ALJ correctly concluded that Dr. Giacalone's signature on the medical report deserved no weight, because there was no record that he ever saw or treated the plaintiff. Nor does she contest the finding that a nurse practitioner is not an “acceptable medical source” within the meaning of 20 C.F.R. § 404.1527(c). Instead, she argues that the ALJ too easily discounted the report, which also was signed by the nurse practitioner, in violation of Social Security Ruling (SSR) 06-3p, which requires the ALJ to consider various factors when deciding the weight to be given to opinions from “other sources.” However, as the magistrate judge explained in detail, the ALJ gave ample reasons for giving the opinion little weight, and those reasons were supported by substantial record evidence. That explanation is cogent and accurate, and the Court adopts it. The discussion need not be repeated at length here. It is sufficient to note that the August 2012 EMG showed mild carpal tunnel syndrome, and the April 2015 study characterized the plaintiff's carpal tunnel syndrome as borderline in severity. Dr. Bhangu's recommendations to wear wrist splints and to avoid repetitive movements do not support the severe limitations in Nurse Holloway's opinion. The record also shows that in August 2012, Dr. Bhangu observed that the plaintiff looked comfortable, she was in no acute stress, her CN examination was ...


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