United States District Court, E.D. Michigan, Southern Division
ALBERTO G. TREJO, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER ACCEPTING REPORT AND RECOMMENDATION AND
Page Hood Denise Page Hood Chief Judge, United States
matter is before the Court on Magistrate Judge David R.
Grand's Report and Recommendation. [Doc. No. 20]. Timely
objections and a response to the objections were filed in
this matter. [Doc. Nos. 23 and 24].
review of the Commissioner's decision is limited in scope
to determining whether the Commissioner employed the proper
legal criteria in reaching his conclusion. Garner v.
Heckler, 745 F.2d 383 (6th Cir. 1984). The credibility
findings of an administrative law judge (“ALJ”)
must not be discarded lightly and should be accorded great
deference. Hardaway v. Secretary of Health and Human
Services, 823 F.2d 922, 928 (6th Cir. 1987). A district
court's review of an ALJ's decision is not a de
novo review. The district court may not resolve
conflicts in the evidence nor decide questions of
credibility. Garner, 745 F.2d at 397. The decision
of the Commissioner must be upheld if it is supported by
substantial evidence, even if the record might support a
contrary decision or if the district court arrives at a
different conclusion. Smith v. Secretary of HHS, 893
F.2d 106, 108 (6th Cir. 1984); Mullen v. Bowen, 800
F.2d 535, 545 (6th Cir. 1986).
Court has had an opportunity to review this matter and finds
that the Magistrate Judge reached the correct conclusions for
the proper reasons. Plaintiff objects to the Magistrate
Judge's: (a) determination that the Administrative Law
Judge (“ALJ”) properly weighed the treating
physician's opinion; (b) finding that the ALJ correctly
applied Drummond v. Commissioner of Social Security,
126 F.3d 837 (6th Cir. 1997); and (c) decision that the ALJ
properly accounted for Plaintiff's mental health issues
when formulating Plaintiff's residual functional
respect to the first objection, Plaintiff argues that the ALJ
failed to provide good reasons for affording the opinion of
Plaintiff's treating physician, Dr. Daniel Duffy little
weight. Plaintiff asserts that Dr. Duffy's statements
were not inconsistent with his restrictions and examination
findings, that the ALJ's findings were based on her own
interpretation of raw medical data, and that Dr. Duffy's
conservative treatment was not a sufficient reason to
discount his opinion.
Court is not persuaded by Plaintiff's arguments. There is
substantial evidence in the record from which the ALJ could
have concluded that Dr. Duffy's opinion was not
consistent with the restrictions he recommended and his own
findings upon examination of Plaintiff. As the Magistrate
Judge notes, the ALJ determined that Dr. Duffy's opinion
did not align with the Plaintiff's participation in the
chores Plaintiff did around the house and Plaintiff's
activities with his family, such as hiking and working on a
go-cart. (Doc. No. 20 at PgID 672). Dr. Duffy prescribed back
exercises that could be considered inconsistent with his
opinion that Plaintiff could only work one day per month.
That evidence supports the ALJ's decision to discount Dr.
Duffy's recommended restrictions and undermines
Plaintiff's argument that the ALJ was simply interpreting
raw medical data. The ALJ's determination that Dr.
Duffy's opinion also should be discounted due to Dr.
Duffy's conservative treatment was a valid consideration.
If Plaintiff's impairments truly were so disabling that
he could only attend work for one day a month, it was
reasonable for the ALJ to conclude that treating his
impairments solely by prescribing exercises and pain
medication constituted a conservative treatment. When all of
these factors are combined, the Court concludes that there is
substantial evidence to support the ALJ's decision.
next objects that: (a) the ALJ misapplied Drummond,
and (b) the Magistrate Judge incorrectly determined that the
ALJ's findings were more restricted than those found in
previous cases, such that the ALJ's application of
Drummond was inappropriate. The Court disagrees with
Plaintiff. The ALJ's findings regarding Plaintiff's
residual functional capacity (“RFC”) were more
limited than previously determined residual functional
capacities. The ALJ put additional non-exertional
restrictions on Plaintiff's RFC, while generally leaving
the exertional restrictions the same. The only exception was
that the ALJ did not include a sit/stand option in
Plaintiff's RFC. The Court agrees with the Magistrate
Judge that, since all the jobs that the ALJ used in Step Five
of the sequential evaluation process can be performed with a
sit/stand option, a failure to include the option could not
constitute reversible error. The Court concludes that the ALJ
correctly applied Drummond.
third objection, Plaintiff contends that the Magistrate
Judge: (1) excuses the ALJ's failure to find
Plaintiff's mental health a serious impairment under Step
Two of the sequential evaluation process, and (2) finds the
ALJ's Step Two determination to be an error. Plaintiff
contends that the ALJ's decision is not supported by
Court notes that the Magistrate Judge did not find that the
ALJ should have determined that Plaintiff had a serious
impairment because of his depression. Rather, the Magistrate
Judge concluded that, if the decision was a mistake,
it is not a reversible error because if the ALJ
“appropriately considered all of Trejo's
impairments - both severe and non-severe - in formulating
[her] RFC, then her failure to find additional severe
impairments at Step Two does not constitute reversible
error.” (Doc. No. 20 at PgID 669). The Court finds that
the ALJ accounted for Plaintiff's depression in the RFC
by limiting Plaintiff to work that only has “limited
contact with others and stress in light of his mild
depressive symptoms and his pain.” (Id.). This
limitation is supported by substantial evidence in the
record, including Plaintiff's ability to perform
household chores, his interactions with family, and his
cooperation at his hearing before the ALJ. Although there is
conflicting medical evidence regarding Plaintiff's
abilities, there is substantial medical evidence from Dr.
Caputo and state agency psychologist, Dr. Garner, to support
the decisions made by the ALJ in formulating Plaintiff's
reasons set forth above, the Court finds that the ALJ's
decision, including but not limited to the determinations
Plaintiff challenges in his objections, was supported by
substantial evidence and was not based on any legally
erroneous determination. Further, the Court accepts the
Magistrate Judge's Report and Recommendation as this
Court's findings of fact and conclusions of law.
IT IS ORDERED that the Report and Recommendation of
Magistrate Judge David R. Grand [Doc. No. 20, filed May 10,
2017] is ACCEPTED and ADOPTED as this Court's findings of
fact and conclusions of law.
FURTHER ORDERED that Plaintiff's Objections [Doc. No. 23,
filed May 26, 2017] are OVERRULED.
FURTHER ORDERED that Plaintiff's Motion for Summary
Judgment [Doc. No. 15, filed September 7, 2016] is DENIED.
FURTHER ORDERED that Defendant's Motion for Summary
Judgment [Doc. No. 18, ...