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McClellan v. Commissioner of Social Security

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

March 30, 2017


          David R. Grand Magistrate Judge



         Plaintiff James McClellan suffers from posttraumatic stress disorder and major depressive disorder and believes that his cognitive (and physical) deficits preclude him from performing any full-time work. As such, he has sought disability benefits from the Social Security Administration. The Commissioner of Social Security denied benefits after an administrative law judge (acting on behalf of the Commissioner) found that McClellan can perform certain jobs. McClellan filed suit to challenge that determination. All pretrial matters, including the parties' motions for summary judgment, were referred to Magistrate Judge David R. Grand. He recommends that this case be remanded primarily because the ALJ did not properly assess the opinions of McClellan's two treating doctors, both of whom indicated that McClellan could not perform any full-time work. The Commissioner objects to the Magistrate Judge's recommendation. For the reasons that follow, the Court will remand this case for further adjudication.


         McClellan, now 45 years old, served in the armed forces for about 20 years and has also worked as a financial consultant. (Tr. 74, 418-19.) In 2009, while deployed in Afghanistan, McClellan was carrying an 80-pound pack, his firearm, and some bags up a hill and fell backward. (Tr. 61.) He might have (though the evidence suggests probably not) suffered a traumatic brain injury. (See Tr. 683, 764, 1009.) In 2014-if not earlier-McClellan was diagnosed with posttraumatic stress disorder and severe, major depressive disorder. (Tr. 415.) Among the events supporting those diagnoses were falling off a ship and being caught in a safety net before hitting the ocean, being within 50 feet of a pipe-bomb explosion, riding in a Blackhawk helicopter under fire, and serving as a pallbearer for eighteen fellow soldiers. (Tr. 64, 420-21.) As a result of his TBI or PTSD and depression (or both) McClellan suffers from cognitive deficits, including difficulties in verbal reasoning, verbal comprehension, and processing speed. (Tr. 1009.) Dr. Hisanori Hasegawa, a neurologist who treated McClellan for severe headaches, has opined that McClellan is “clinically disabled.” (Tr. 928.) After treating McClellan's PTSD and depression for almost a year, Lisa Porta, a licensed clinical social worker, and Dr. Thomas Zatolokin, a psychiatrist, opined that McClellan had many severe cognitive limitations, including “[n]o useful ability” to understand and remember very short and simple instructions. (See Tr. 839, 869, 1014.) The Department of Veterans Affairs gave McClellan a 100% disability rating based on his TBI, PTSD, and depression. (Tr. 362.)

         McClellan believes that his cognitive and physical limitations prevent him from maintaining any full-time job. As such, in 2014 he applied for disability benefits from the Social Security Administration. (Tr. 13.) Initially, McClellan was awarded benefits. (See Tr. 110.) But after a fraud investigation revealed that he was able to follow directions to locate and retrieve a 20-pound item at Home Depot, shop at other stores, go down water slides, gamble at casinos (including table games), and go out to dinner multiple times with family and friends (Tr. 860-61, 863), the award of benefits was overruled (Tr. 132-35).[1]

         McClellan challenged that decision. Administrative Law Judge Kendra Kleber, relying significantly on the fraud-investigation report, concluded that McClellan was not under a “disability” as that term is used in the Social Security Act. (See Tr. 13-30.) In reaching this conclusion, she assigned Dr. Hasegawa's opinion “little weight” because it was “inconsistent with the record as a whole.” (Tr. 24.) And she assigned the joint Porta-Zatolokin opinion “little weight” because it was “grossly inconsistent with the record as a whole, ” including the fraud-investigation report. (Tr. 25.) As for the Department of Veterans Affairs' disability rating, the ALJ stated that the VA had “its own rules for determining disability” and that, while she had considered the VA's opinion, “the record does not support a finding of disabled.” (Tr. 24.) After further administrative appeal was denied, the ALJ's disability determination became the final decision of the Commissioner of Social Security. (Tr. 1.)

         McClellan filed this lawsuit to challenge the Commissioner's decision. Both he and the Commissioner filed motions for summary judgment in support of their positions. (R. 11, 14.) These motions were referred to Magistrate Judge David R. Grand for a report and recommendation, which he has issued. (R. 17.)

         The Magistrate Judge recommends remanding this case for three reasons. (R. 17.) For one, he says that substantial evidence does not support the ALJ's finding that the Hasegawa opinion and the Porta-Zatolokin opinion were “inconsistent with the record as a whole.” (R. 17, PID 1145.) Second, the ALJ violated a significant procedural rule by not adequately explaining why she gave these two opinions little credence. (R. 17, PID 1146.) Third, the Magistrate Judge found that the ALJ failed to adequately consider the VA's disability rating. (R. 17, PID 1147-48; see also Tr. 362.) The Magistrate Judge thus recommends that this Court send this case back to the ALJ so she can further consider and further explain her consideration of the Hasegawa opinion, the Porta-Zatolokin opinion, and the VA's disability rating. (R. 17, PID 1148.)

         The Commissioner objects to this recommendation. (R. 18.) She asserts that the Hasegawa opinion is entitled to “no weight whatsoever” because it merely states that McClellan was disabled (which is a determination that the law reserves for the Commissioner, not a physician) and because Dr. Hasegawa merely adopted McClellan's own assessment of his ability to work. (R. 18, PID 1152.) The Commissioner also argues that the Porta-Zatolokin opinion was “not entitled to any significant weight” because Porta and Dr. Zatolokin failed to support their severe functional limitations with anything other than a listing of medical diagnoses. (R. 18, PID 1153.) The Commissioner further argues that, contrary to the Magistrate Judge's determination, the ALJ provided good reasons for discounting the two treating-source opinions, primarily the fraud-investigation report. (See R. 18, PID 1154-60.) As for the VA's rating, the Commissioner argues that when the ALJ's narrative is read as a whole, it is clear that the ALJ could not accept the rating “because it was inconsistent with the [fraud-investigation] report and [McClellan's] normal mental status exams.” (R. 18, PID 1160-61.) Thus, the Commissioner concludes, this Court should reject the Magistrate Judge's recommendation and instead affirm her conclusion that McClellan is not disabled under the Social Security Act. (R. 18, PID 1162.)


         When a federal magistrate judge reviews an ALJ's disability determination, the question “is limited to whether the ALJ applied the correct legal standards and whether the findings of the ALJ are supported by substantial evidence.” Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009). “The substantial-evidence standard is met if a reasonable mind might accept the relevant evidence as adequate to support a conclusion.” Id. (internal quotation marks omitted).

         When, as here, the Commissioner objects to a finding of the magistrate judge, this Court reviews that finding de novo. See 28 U.S.C. § 636(b). Thus, this Court will assess whether the ALJ's treatment of the Hasegawa opinion, the Porta-Zatolokin opinion, and the VA's rating was based on a correct application of the law and was supported by substantial evidence. See Blakley, 581 F.3d at 405.



         In view of the Commissioner's objections and this Court's review of the record, the Court will not adopt the Magistrate Judge's finding that the ALJ lacked substantial evidence for ...

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