United States District Court, E.D. Michigan, Southern Division
JOAN B. DAVIS, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
M. LAWSON UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION CROSS-MOTIONS FOR SUMMARY
JUDGMENT (Dkt. 15, 20)
STEPHANIE DAWKINS DAVIS UNITED STATES MAGISTRATE JUDGE
Proceedings in this Court
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).
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).
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.
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
(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.
Plaintiff's Motion for Summary Judgment
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).
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”.
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.).
Commissioner's Motion for Summary Judgment
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.
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
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).
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
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.).
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.).
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)).
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
Standard of Review
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 ...