United States District Court, E.D. Michigan, Southern Division
TAMMY D. HANNAH, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION AND ORDER ACCEPTING THE MAGISTRATE
JUDGE'S AUGUST 15, 2017 REPORT AND RECOMMENDATION
G. EDMUNDS, UNITED STATES DISTRICT JUDGE
filed this action seeking review of the Commissioner of
Social Security's decision that Plaintiff was disabled
beginning on May 15, 2014, but denying social security
benefits for the period of May 9, 2011 (Plaintiff's
alleged onset date) through May 15, 2014. (Dkt. 1.) The Court
referred the matter to the Magistrate Judge who now
recommends upholding the Commissioner's decision. (Dkt.
20.) On August 30, 2017, Plaintiff filed two objections to
the Magistrate Judge's report, which the Court considers
here. (Dkt. 22.) Having conducted a de novo review
of the part of the Magistrate Judge's report to which
specific objections have been filed, the Court DENIES
Plaintiff's objections and ACCEPTS AND ADOPTS the
Magistrate Judge's report and recommendation. It is
further ordered that Plaintiff's motion for summary
judgment  is DENIED, Defendant's motion for summary
judgment  is GRANTED, and the case is hereby DISMISSED.
has two objections to the Magistrate Judge's report and
recommendation. First, Plaintiff objects to the Magistrate
Judge's analysis of the Administrative Law Judge's
("ALJ") step-two conclusion that Plaintiff had no
severe physical impairments until May 15, 2014. (Dkt. 22, at
2.) Plaintiff rightly cites Higgs v. Bowen, for the
proposition that the Sixth Circuit construes the step-two
severity regulation as a "de minimis hurdle in
the disability determination process." 880 F.2d 860, 862
(6th Cir. 1988); See also Nejat v. Comm'r of Soc.
Sec., 359 F.App'x 574, 576 (6th Cir. 2009).
Plaintiff maintains, that the few inconsistent references to
her alleged pain in the medical records for this period,
meets this admittedly low de minimis hurdle.
However, Higgs also states that "the severity
requirement may still be employed as an administrative
convenience to screen out claims." 880 F.2d at 863.
"When doctors' reports contain no information
regarding physical limitations or the intensity, frequency,
and duration of pain associated with a condition, [the Sixth
Circuit] has regularly found [albeit in unpublished
decisions] substantial evidence to support a finding of no
sever impairment." Despins v. Commissioner of Soc.
Sec., 257 F.App'x 923, 930 (6th Cir. 2007) (citing
Long v. Apfel, 1 Fed.Appx. 326, 331-32 (6th Cir.
2001)). The Higgs court itself gave little or no
weight to subjective descriptions of pain. 880 F.2d at 864.
Moreover, where the record does not contain indications that
health problems resulted in specific work-impairing
limitations, the Sixth Circuit finds non-severity
determinations appropriate. Long, 1 Fed.Appx. at
332. Thus, the de minimis hurdle is both the
appropriate standard for a step-two determinations, and yet
may appropriately be used to screen out claims if
insufficient evidence is provided to meet that hurdle.
Higgs, 880 F.2d at 863.
argues that the ALJ failed to properly consider her physical
impairments from prior to May 15, 2014. However, the
ALJ's decision includes substantial analysis of this
period including weighing Plaintiff's repeated denials of
pain to Dr. Park, the lack of diagnostic studies, and the
"mild" allegations of back pain during the
consultative examination performed in April 2013, among other
things. (Dkt. 12-2, Pg ID 66-67; Dkt. 12-9, Pg ID 349.) The
Court is satisfied that ALJ properly considered
Plaintiff's physical impairment prior to May 15, 2014 and
reasonably determined them non-severe.
also disagrees with the Magistrate Judge's close
interpretation of the medical records from prior to May 15,
2014. (Dkt. 22, at 3-4.) Plaintiff argues the Magistrate
Judge overly credits Plaintiff's strength and mobility
improvements during physical therapy at the Cooper Center,
between March and June, 2011 and missed Plaintiff's
moderate setback during the May 2011 visit. (Dkt. 22, at 4.)
However, the Magistrate's Judge's finding of overall
improvement is reasonable, based on Plaintiff's request
for discharge from physical therapy and improving strength
and mobility over the period, even considering the moderate
set back in the final appointment. Plaintiff failed to show
functional limitations prior to May 2014 and the ALJ and the
Magistrate Judge's findings that any impairment prior to
May 2014 was non-severe is reasonable.
not necessary for this determination, the Court further
recognizes the Sixth Circuit precedent that an incorrect
non-severity finding at step-two may be harmless, if the ALJ
found another impairment severe and continued with the
five-step evaluation process. (Dkt. 20, at 19.) Plaintiff
argues this precedent cannot be employed because the ALJ did
not account for Plaintiff's non-severe physical
impairments prior to May 15, 2014 in the remaining evaluation
steps. Plaintiff cites as evidence, the fact the physical
impairments prior to May 15, 2014 are not mentioned in the
ALJ's RFC finding. However, "the RFC is meant to
describe the claimant's residual abilities or what a
claimant can do, not what maladies a claimant suffers
from." Howard v. Comm'r of Soc. Sec., 276
F.3d 234, 240 (6th Cir. 2002). The ALJ considered the
Plaintiff's physical impairments at step three, and found
that they only established functional limitations as of May
15, 2014. (Dkt. 12-2, PG ID 66-67.) Thus, even if the ALJ and
Magistrate Judge were both incorrect in their step-two
determinations, which they are not, the error would still be
harmless since those physical impairments were considered in
the remaining sequential analysis. Accordingly, the Court
finds no merit in Plaintiff's first objection.
second objection to the report and recommendation is that the
Magistrate Judge erred in finding that the ALJ properly
applied the "treating physician rule."
Specifically, Plaintiff argues, the Magistrate Judge, and
before her the ALJ, improperly discounted the weight afforded
to Dr. Park and Barbara Payne's opinions reflected in
check-box questionnaires they each completed in June 2012.
(Dkt. 20, at 21.) Plaintiff maintains the 100 pages of
medical records from Dr. Park and Barbara Payne support the
opinions they each represented when checking the boxes.
However, as the Magistrate Judge established, the
check-the-box forms express conclusory opinions on matters
reserved for the Commissioner, and do not represent
"clinical notes, nor do they document a contemporaneous
examination of the patient." (Dkt. 20, at 27.)
"[T]he solicited information is not a medical opinion,
but rather a series of check marks addressing plaintiff's
vocational limitations." (Id.) The conclusions
"were not supported by the providers' own
[contemporaneous] treatment notes and were otherwise
inconsistent with other substantial evidence in the
record." (Id.) (citing Dkt. 12-2, Pg ID 27-33.)
As the Sixth Circuit has made clear, an ALJ is "not
bound by conclusory statements of doctors, particularly where
they are unsupported by detailed objective criteria and
documentation." Buxton v. Halter, 246 F.3d 762,
773 (6th Cir. 2001). The Court is thus satisfied that the ALJ
offered sufficient reasons to discount Dr. Park's and
Barbara Payne's check marked forms.
reasons thus stated, the Court DENIES Plaintiff's
objections, ADOPTS the Magistrate Judge's Report and
Recommendation, DENIES Plaintiff's Motion for Summary
Judgment, GRANTS Defendant's Motion for Summary Judgment