United States District Court, E.D. Michigan, Southern Division
KATHLEEN F. TRURAN, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[#25] TO GRANT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
[#23] AND TO DENY PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
matter is before the Court on a Report and Recommendation
(Doc # 25) filed by Magistrate Judge Anthony P. Patti to
grant the Motion for Summary Judgment filed by Defendant
Commissioner of Social Security (“Commissioner”)
(Doc # 23) and to deny the Motion for Summary Judgment filed
by Plaintiff Kathleen F. Truran (“Truran”) (Doc #
19). Truran has timely filed two objections to the Report and
Recommendation. (Doc # 26) The Commissioner has filed a
response to the objections. (Doc # 27) Having conducted a
de novo review of the parts of the Magistrate
Judge's Report and Recommendation to which valid
objections have been filed pursuant to 28 U.S.C. §
636(b)(1), the Court ACCEPTS and ADOPTS the Report and
Recommendation, GRANTS the Commissioner's Motion for
Summary Judgement, and DENIES Truran's Motion for Summary
background facts of this matter are adequately set forth in
the Magistrate Judge's Report and Recommendation, and the
Court adopts them here.
Standard of Review
standard of review by the district court when examining a
Report and Recommendation is set forth in 28 U.S.C. §
636. This Court “shall make a de novo
determination of those portions of the report or the
specified proposed findings or recommendations to which an
objection is made.” 28 U.S.C. § 636(b)(1)(C). The
court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.” Id. In order to preserve the right to
appeal the magistrate judge's recommendation, a party
must file objections to the Report and Recommendation within
fourteen (14) days of service of the Report and
Recommendation. Fed.R.Civ.P. 72(b)(2). Failure to file
specific objections constitutes a waiver of any further right
of appeal. Thomas v. Arn, 474 U.S. 140, 155 (1985);
Howard v. Sec'y of Health & Human Servs.,
932 F.2d 505, 508-09 (6th Cir. 1991); United States v.
Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).
first objects to the Magistrate Judge's analysis of
Truran's “possible fibromyalgia” diagnosis,
arguing that it adopts the errors made by the administrative
law judge (“ALJ”) and compounds them by imputing
analysis to the ALJ. The Commissioner responds that the
Magistrate Judge correctly found that substantial evidence
supported the ALJ's evaluation of Truran's
“possible fibromyalgia.” At Step 2, the ALJ
concluded that the claimant had several severe impairments.
(Doc # 15-2, Pg ID 85) However, the ALJ found that the
diagnosis of “possible fibromyalgia” was a
non-severe impairment. Id. at 86.
Court agrees with the Magistrate Judge that the ALJ did not
consider the “possible fibromyalgia” diagnosis to
be a non-medically determinable impairment. Rather, the ALJ
considered the “possible fibromyalgia” diagnosis
to be a medically determinable but non-severe impairment. The
Court further agrees with the Magistrate Judge that, even if
the alternative criteria for diagnosing fibromyalgia under
Social Security Ruling 12-2p applied to determine whether
Truran's “possible fibromyalgia” diagnosis
was a severe impairment at Step 2, Truran has not come
forward with evidence of the third criterion-that other
disorders that could cause pain, numbness, and fatigue (such
as Truran's diagnosis of chronic fatigue syndrome) were
excluded. The Court also agrees with the Magistrate Judge
that, to the extent the ALJ made any error at Step 2, any
such error was harmless because the ALJ found that Truran had
several severe impairments and then considered Truran's
allegations of pain and numbness at Step 4. See Doc
# 25, Pg ID 712 (citing Pompa v. Comm'r of Soc.
Sec., 73 F. App'x 801, 803 (6th Cir. 2003);
Maziarz v. Sec'y of Health & Human Servs.,
837 F.2d 240, 244 (6th Cir. 1987); Carpenter v.
Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008)). The Court
finds that substantial evidence supported the ALJ's
conclusion at Step 4 that the objective evidence did not
support Truran's complaints of pain and numbness.
Truran's first objection is overruled.
second objection, Truran claims that the Magistrate Judge
erred in excusing the ALJ's failure to sufficiently
account for the findings of Dr. Kenneth Visser, a
consultative examiner, when assessing the impact of
Truran's mental impairments on her ability to work. The
Commissioner responds that substantial evidence supported the
ALJ's analysis of Dr. Visser's consultative exam
Visser conducted a psychological evaluation on May 21, 2012,
for the known purpose of use in the disability process. (Doc
# 15-8, Pg ID 486) Dr. Visser found that Truran had problems
with working memory, concentration, and social interaction.
Id. at 491. Dr. Visser's report did not include
specific functional limitations. Dr. Thomas Conger, the State
agency's mental health consultant, listed Dr.
Visser's report as evidence of record. (Doc # 15-3, Pg ID
157-58) Dr. Conger also included Dr. Visser's mental
findings in his findings of fact and analysis. Id.
at 160. The ALJ correctly noted that Dr. Conger opined that
Truran is capable of performing routine tasks on a sustained
basis, and that she shows the ability to relate effectively
in general despite some social difficulties. (Doc # 15-2, Pg
ID 91) Dr. Shakra Junejo, the State agency's medical
consultant, also listed Dr. Visser's report as evidence
of record. (Doc # 15-3, Pg ID 171)
correctly notes that the ALJ did not specifically discuss Dr.
Visser's mental findings at Step 4. However, at Step 4,
the ALJ did note physical observations that Dr. Visser made
during his evaluation, as well as the fact that Dr.
Visser's evaluation was for the known purpose of use in
the disability process. (Doc # 15-2, Pg ID 90) The ALJ noted
that, according to Dr. Visser's report, Truran brought a
recorder to Dr. Visser's evaluation. Id. The ALJ
also found that the absence during a number of visits with
treating physicians of some of the physical symptoms that
were present during Dr. Visser's evaluation undermined
the credibility of Truran's allegations during Dr.
Visser's evaluation and at the hearing. Id. The
ALJ then went on to consider the alleged mental impairments
as well as Dr. Conger's report (which incorporated some
of Dr. Visser's mental findings) and Dr. Junejo's
report. Id. at 91-92. The ALJ concluded at Step 4
that Truran “is limited to ...