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Davis v. Commissioner of Social Security

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

February 12, 2018

JOAN B. DAVIS, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          DAVID M. LAWSON UNITED STATES DISTRICT JUDGE

          REPORT AND RECOMMENDATION CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkt. 15, 20)

          STEPHANIE DAWKINS DAVIS UNITED STATES MAGISTRATE JUDGE

         I. PROCEDURAL HISTORY

         A. Proceedings in this Court

         On September 27, 2016, plaintiff Joan Davis, acting pro se, filed the instant suit. (Dkt. 1). Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(b)(3), District Judge David M. Lawson referred this matter to the undersigned for the purpose of reviewing the Commissioner's unfavorable decision denying plaintiff's claim for period of disability and disability insurance benefits. (Dkt. 4). This matter is before the Court on cross-motions for summary judgment. (Dkt. 15, 20).

         B. Administrative Proceedings

         Plaintiff initially filed her claims for a period of disability and disability insurance benefits on January 30, 2014. (See Administrative Record, Dkt. 12, hereinafter referred to as “Tr.” at 10). The claims were first disapproved by the Commissioner on March 20, 2014. (Tr. 86-9). Plaintiff requested a hearing and on June 3, 2015, plaintiff appeared with counsel before Administrative Law Judge (“ALJ”) Yasmin Elias, who considered the case de novo. (Tr. 10). In a decision dated July 1, 2015, the ALJ found that plaintiff was not disabled from November 1, 2013, the alleged onset date (“AOD”), through the date of the decision. (Tr. 19). Plaintiff requested a review of this decision. (Tr. 5-6). The ALJ's decision became the final decision of the Commissioner when the Appeals Council, on August 8, 2016, denied plaintiff's request for review. (Tr. 1-4); Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004).

         For the reasons set forth below, the undersigned RECOMMENDS that plaintiff's motion for summary judgment be DENIED, that defendant's motion for summary judgment be GRANTED, and that the findings of the Commissioner be AFFIRMED.

         II. FACTUAL BACKGROUND

         A. ALJ Findings

         Plaintiff was 51 years old at the time of the date of alleged onset of disability of November 1, 2013. (Tr. 18). She has past relevant work as a nurse assistant/home health aide, hand packer, hi-lo driver, housekeeper, babysitter, financial aid technician and construction worker. In considering her claim, the ALJ applied the five-step disability analysis and found at step one that plaintiff had not engaged in substantial gainful activity since the AOD. (Tr. 12). At step two, the ALJ found that plaintiff's spinal disorder, osteoarthritis, asthma, and an affective disorder were “severe” within the meaning of the second sequential step. (Id.). However, at step three, the ALJ found no evidence that any of plaintiff's impairments or combination of impairments met or medically equaled one of the listings in the regulations. (Tr. 13). Thereafter, the ALJ determined the following as to plaintiff's residual functional capacity (“RFC”):

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except she is unable to climb ladders, ropes, and scaffolds; she is limited to occasional climbing of ramps and stairs, balancing, stooping, kneeling, crawling, and crouching; must avoid moderate exposure to irritants (e.g., fumes, dusts, and odors) and hazards (e.g.,, moving machinery and unprotected heights); and is limited to one to two step tasks.

(Tr. 14). At step four, the ALJ found that plaintiff was unable to perform any past relevant work. (Tr. 18). At step five, the ALJ denied plaintiff benefits because she found that there were jobs that exist in significant numbers in the national economy that plaintiff could perform. (Id.).

         B. Plaintiff's Motion for Summary Judgment

         Plaintiff claims a number of errors pertaining to the ALJ's unfavorable decision and the Appeals Council's denial of her review request. Plaintiff, however, provides very little argument in support of her claims. First, plaintiff states that the ALJ's decision is not supported by substantial evidence. She claims she is unable to work due to her physical and mental conditions, that the ALJ made procedural errors, and that the decision is not supported by substantial evidence pertaining to her psychiatric records. (Dkt. 15, pp. 2-3). Plaintiff also lists several reasons why she believes the Appeals Council erred in its denial of her review request: the Appeals Council did not give sufficient weight to the treating physician's opinion, it did not consider pain and other depression symptoms, and it did not ask for complete assessments of her work abilities from treating physicians. (Id. at p. 3).

         She also challenges the Social Security Administration's processes. More particularly, she states that she was not informed that she had the rights to (1) submit additional evidence; (2) examine the evidence used in making the determination; (3) to introduce witnesses and question them, and (4) to present written or oral arguments to the ALJ. (Id.). She also claims she was not notified that an expert witness would be at the hearing, and avers more generally that there was an “abuse of process”. (Id.).

         Plaintiff states that she “can prove that she attended Disability Determination Services and was examined by a medical consultant and examiner who was not part of the initial decision and barred from deciding plaintiff's reconsideration of claim the claim [sic] which was denied.” (Id. at p. 2). Finally, she claims that she was not in a condition to answer questions at the hearing before the ALJ because she was under the influence of prescription drugs. (Id.).

         C. Commissioner's Motion for Summary Judgment

         The Commissioner argues that there was substantial evidence to support the ALJ's unfavorable decision. The Commissioner cites various parts of the administrative record to support the conclusion that, although plaintiff has impairments, none caused functional limitations rendering her disabled. For example, records from early 2013 show normal range of motion in her back, normal motor and sensory examinations in her lower extremities, and minimal disc desiccation. (Dkt. 20, Commissioner's Brief, p. 7). And, although plaintiff fell in April 2015, in March 2015 she had no positive musculoskeletal findings, and her physical therapy did not include mobilization or gait training. (Id. at p. 8). Regarding plaintiff's asthma, the Commissioner points out that plaintiff was not prescribed a Nebulizer until April 2015, she continues to smoke cigarettes, her lungs generally were clear to auscultation, x-rays of the chest had been normal, and her blood pressure had been well controlled. (Id. at p. 9) (citing Tr. 48, 224, 227-228, 230, 232, 236, 501; see also Tr. 309, 313, 315, 318). Regarding her affective disorder, the Commissioner notes that plaintiff has no history of hospitalizations or psychological treatment before February of 2014. Further, while plaintiff did receive a GAF score of 50 because she was sad and tearful, by February 2015 she reported that she was feeling great, that she was compliant with medication with no adverse side effects, and that her financial situation was not as bad as it was in the past. (Id.). Moreover, plaintiff's treating physician, Dr. Syed Hussain, assessed GAF scores ranging variously from 55 to 65 between August 2014 and May 2015.

         As to plaintiff's claims against the Appeals Council, the Commissioner argues that the Appeals Council decision is not reviewable by this Court. (Id. at p. 13) (citing Meeks v. Sec'y of Health & Human Servs., 1993 WL 216530, at *1 (6th Cir. June 18, 1993)). Nevertheless, the Commissioner goes on to analyze plaintiff's claims against the Appeals Council as if they were raised against the ALJ. On plaintiff's claim that her treating physician's opinions were not accorded sufficient weight, the Commissioner states that the ALJ properly assessed the greatest weight to the two agency physicians: Drs. Yousef and Khalid. (Id. at p. 11) (citing Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 409 (6th Cir. 2009) (“Certainly, the ALJ's decision to accord greater weight to state agency physicians over Blakley's treating sources was not, by itself, reversible error”)). Further, the Commissioner argues that the ALJ's decision to give plaintiff's treating physician Dr. Pieh's opinion little weight was proper because the opinion was not supported by any narrative, and there were inconsistencies between the opinion and the record evidence. (Id.). Specifically, in April 2015 after treating plaintiff following a fall, Dr. Pieh noted plaintiff's use of a cane but recorded that she was ambulatory; then, without any explanation or support, checked off a box indicating that plaintiff was unable work. However, the Commissioner maintains that there is nothing in the record to support this assessment as applied to an earlier period. (Id.).

         According to the Commissioner, contrary to plaintiff's claim, the ALJ was not required to seek an RFC assessment from her treating physician; the ALJ did consider her symptoms of depression; and the ALJ made appropriate weight assignments to the medical opinions. (Id. at p. 11, 13).

         Furthermore, the Commissioner contends that even if the Court were to find that the ALJ erred in assessing plaintiff a light work RFC, the VE testified that there are also sedentary jobs available in significant numbers in the economy. (Id. at p. 12). Therefore, the ALJ's decision is supported by substantial evidence.

         In response to plaintiff's general claims of abuse of process and failure to notify her of her rights, the Commissioner maintains that plaintiff is simply incorrect. The hearing notice provided to Plaintiff contained proper notification of her rights. (Id. at p. 14-15). As to plaintiff's argument that she was incapable of properly answering questions because she was under the influence of her prescription medications, the Commissioner contends that there is no evidence of difficulty answering questions she was able to provide detailed answers. Further, she was represented by counsel who could have requested a continuance if her medication was causing a problem. (Id.).

         As to plaintiff's claims about her purported visit with Disability Determination Services, the Commissioner contends that there is no evidence in the record showing a consultative examination, and there was no “reconsideration” phase in the proceedings. (Id. at p. 15). After the initial denial, the claim proceeded to an ALJ hearing. (Id.).

         Finally, the Commissioner construes the additional evidence plaintiff submitted to the Court after she filed her brief as a request for a sentence six remand under § 605(g). In response, the Commissioner argues that plaintiff has not met the requirements for a sentence six remand. Sentence six provides that the court may at any time “order additional evidence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding. . . .” See King v. Sec'y of Health & Human Servs., 896 F.2d 204, 206 (6th Cir. 1990). However, two of the documents plaintiff recently submitted are already in the record and thus are not new evidence. (Dkt. 20 at p. 16; Tr. 502, 504). Further, plaintiff failed to show that the remaining evidence is material as it post-dates the ALJ's decision. (Dkt. 20 at p. 16). Moreover, it is not clear that she has established good cause for submitting at least some of the evidence prior to the hearing. (Id.) (citing Oliver v. Sec'y of Health & Human Servs., 804 F.2d 964, 966 (6th Cir. 1986)).

         D. Plaintiff's Reply

         Plaintiff filed an “Answer” which the undersigned construes as a reply. In reply, plaintiff states that the ALJ denied her disability claim because she attended church, and contends that this determination violated her First Amendment Rights and is erroneous because the church is three blocks from her home and services last only an hour and a half. (Dkt. 23, Pg ID 615-16). She also states that she was denied disability benefits because of her obesity. Furthermore, the obesity determination was erroneous because she is not excessively obese, and her weight gain is caused by the steroids she takes. (Id. at Pg ID 616). She claims that while taking her medication she cannot stay focused and that the MRI she filed with the Court in May 2017 shows several bulging discs in her back which causes her pain all day. (Id.).

         III. DISCUSSION

         A. Standard of Review

         In enacting the social security system, Congress created a two-tiered system in which the administrative agency handles claims, and the judiciary merely reviews the agency determination for exceeding statutory authority or for being arbitrary and capricious. Sullivan v. Zebley, 493 U.S. 521 (1990). The administrative process itself is multifaceted in that a state agency makes an initial determination that can be appealed first to the agency itself, then to an ALJ, and finally to the Appeals Council. Bowen v. Yuckert, 482 U.S. 137 (1987). If a claimant does not receive relief ...


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