United States District Court, E.D. Michigan, Southern Division
V. Parker United States District Judge
REPORT AND RECOMMENDATION CROSS-MOTIONS FOR SUMMARY
JUDGMENT (DKT. 16, 20)
Dawkins Davis United States Magistrate Judge
Proceedings in this Court
October 13, 2016, plaintiff Kendra Postell filed the instant
suit. (Dkt. 1). The matter was initially assigned to District
Judge Mark A. Goldsmith, who referred this matter to
Magistrate Judge Steven Whalen for the purpose of reviewing
the Commissioner's unfavorable decision denying
plaintiff's claim for a period of disability, disability
insurance benefits, and supplemental security income
benefits. (Dkt. 3). The case was reassigned to District Judge
Linda V. Parker and the undersigned on January 31, 2017.
(Dkt. 12). This matter is before the Court on cross-motions
for summary judgment. (Dkt. 16, 20).
filed a claim for a period of disability, disability
insurance benefits, and Supplemental Security Income payments
on July 23, 2010. (Tr. 18). Plaintiff alleged disability
beginning December 31, 2004. (Id.). The claims were
initially disapproved by the Commissioner on August 8, 2011.
(Id.). Plaintiff requested a hearing and on June 19,
2012, plaintiff appeared with counsel before Administrative
Law Judge (“ALJ”) Anthony R. Smereka, who
considered the case de novo. (Tr. 18). In a decision
dated September 28, 2012, the ALJ found that plaintiff was
not disabled. (Tr. 29). Plaintiff requested a review of this
decision. (Tr. 13-14). The ALJ's decision became the
final decision of the Commissioner when the Appeals Council,
on January 24, 2014, 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).
appealed the decision to this Court and on August 6, 2015,
Magistrate Judge Michael J. Hluchaniuk's filed a Report
and Recommendation recommending remand, which was adopted by
District Judge Linda V. Parker in a September 18, 2015
Opinion and Order. (Tr. 659, 777-817; Civil Docket 14-11244).
On remand, the Appeals Council directed the ALJ to determine
the effect of alcohol abuse on plaintiff's potential
disability. (Tr. 659). Plaintiff alleged disability since
December 31, 2004. (Id.). Plaintiff appeared with
counsel before ALJ Smereka on remand on June 29, 2016.
(Id.). In a decision dated August 10, 2016, the ALJ
found that plaintiff was not disabled. (Tr. 673). Plaintiff
did not file a written objection. The ALJ's decision
became the final decision of the Commissioner 61 days from
the date of the decision. (See Tr.
reasons set forth below, the undersigned
RECOMMENDS that plaintiff's motion for
summary judgment and defendant's motion for summary
judgment each be GRANTED IN PART and DENIED IN
PART, and that the findings of the Commissioner be
REVERSED AND REMANDED for further
proceedings pursuant to Sentence Four of 42 U.S.C. §
who was born on May 6, 1981, was 23 years old on the alleged
disability onset date. (Tr. 671). She has past relevant work
as an assembly person, kitchen aide, cashier, hostess, hotel
housekeeper, and retail clerk. (Tr. 671). The ALJ applied the
five-step disability analysis and found at step one that
plaintiff had not engaged in substantial gainful activity
since December 31, 2004. (Tr. 661). At step two, the ALJ
found that plaintiff's alcohol abuse; major depression;
personality disorder, not otherwise specified; and anxiety
disorder were “severe” within the meaning of the
second sequential step. (Id.). However, at step
three, the ALJ found no evidence that plaintiff's
impairments singly or in combination met or medically equaled
one of the listings in the regulations. (Tr. 662-65).
the ALJ assessed plaintiff's residual functional capacity
(“RFC”) as follows:
After careful consideration of the entire record, I find that
the claimant has the residual functional capacity to perform
a full range of work at all exertional levels but with the
following non-exertional limitations: no exposure to hazards,
including no work at unprotected heights or around dangerous
moving machinery; no driving in the course of employment;
ability for, but restricted to, unskilled work, meaning the
ability to perform simple, routine, and repetitive tasks that
requires little judgment to perform simple duties and may be
learned in a short period of time; due to stresses, no work
with the general public; no more than occasional (from very
little to up to one-third of the workday) contact with
co-workers or supervisors; and no work in fast production
pace settings where the pace is set by others, such as
conveyor belt or assembly line work.
(Tr. 665). At step four, the ALJ found that plaintiff was
unable to perform any past relevant work. (Tr. 671). At step
five, the ALJ denied plaintiff benefits because he found that
there were jobs that exist in significant numbers in the
national economy that plaintiff could perform. (Tr. 672-73).
Plaintiff's Claims of Error
raises two arguments in her brief: that the ALJ erred in
concluding that her severe impairments, singly or in
combination, did not meet or medically equal Listed
Impairment § 12.04 at Step Three, and that the ALJ
assessed an inaccurate RFC because the ALJ failed to consider
Dr. Tripi's residual functional capacity opinion. (Dkt.
16 - Pl.'s Brief).
argues that her impairments met or at least equaled Listed
Impairment § 12.04 (depressive, bipolar, and related
disorders). (Dkt. 16, at p. 18-19). Plaintiff cites a version
of Listing 12.04 that was not in effect at the time of the
hearing and argues that the ALJ did not properly assess
12.04. (Id. at p. 19). Plaintiff finds error in the
ALJ's determination on the following paragraph
“B” criteria: activities of daily living;
concentration, persistence, or pace; and social functioning.
(Id. at p. 20).
activities of daily living, plaintiff argues that the ALJ
“cherry picked” evidence to support his
conclusion that she has only mild deficits in this area. The
ALJ acknowledged that plaintiff's children were removed
from her home, demonstrating that she struggled to maintain
activities of daily living, but also acknowledged that she
was able to get her children ready for school, bathe them,
and cook. (Tr. 662). Plaintiff argues that it is unclear how
the ALJ determined that she only had “mild”
limitations with regard to her activities of daily living,
given that her “struggles” to care for her
children resulted in the termination of her parental rights,
suggesting significant difficulties with activities of daily
living. (Dkt. 16, at p. 20).
social functioning, the ALJ opined that plaintiff's
deficits in this area were only moderate, relying on medical
expert Dr. Jonas's opinion that plaintiff's
“ability to work in a fairly high pressured environment
as a Sam's Club cashier, without any noted difficulty
with frequent public interaction, confirms she does not have
more than moderate deficits in social functioning despite
allegations she does not get along well with other
people.” (Id. at p. 23, Tr. 662). Plaintiff
takes issue with the ALJ's reliance on Dr. Jonas's
opinion here because there is no evidence in the record
indicating whether plaintiff worked at Sam's Club with no
difficulty with frequent public interaction. (Id.).
also argues the ALJ erred in finding only mild limitation on
concentration, persistence, and pace. (Id. at p.
24). Plaintiff asserts that she has memory problems, pointing
to “Working Memory” test results (“Working
Memory 63 - Extremely Low” (Tr. 1089); and,
“Working Memory 66 - 1st percentile - Extremely
Low.” (Tr. 1103)), as well as her inability to
consistently recount her past work to medical professionals.
(Id. at p. 21). Further, plaintiff states that the
record is replete with assessments, evaluations and progress
notes documenting problems with concentration, citing Tr.
237, 305, 313, 320, 436, 525, 529, 536, 586, 591-593, 618,
623, 1069, 1077, 1093-1095, 1115. (Id. at p. 24).
also takes issue with the ALJ's analysis of Dr.
Zerba's consultative examination report. (Id. at
19). Dr. Zerba diagnosed plaintiff with major depressive
disorder and panic disorder without agoraphobia, along with a
GAF score of 49, signifying the seriousness of her mental
impairment. (Id.; Tr. 512). According to plaintiff,
the ALJ failed to “flesh out” Dr. Zerba's
also claims error in the ALJ's reliance on Dr.
Jonas's testimony in general. (Dkt. 16, at p. 19).
Plaintiff argues that Dr. Jonas' conclusions are flawed
because his testimony shows that his opinion rested on his
perception that plaintiff was capable of working for
two-and-a-half years with one employer, that she only left
that employment because she was pregnant, and that she worked
for 90 days at Sam's Club,  without a noted problem.
(Id. at p. 20-21; Tr. 721-22). However, plaintiff
maintains that there is no evidence that she worked as Dr.
Jonas characterizes-for 90 days without problems; plaintiff
testified that she worked at Sam's Club part time.
(Id. at p. 23) (Tr. 613). Plaintiff avers that the
ALJ's reliance on the medical expert's
unsubstantiated statements was error. (Id. at p.
23). Plaintiff argues it was also error for the ALJ to give
Dr. Jonas' opinion significant weight over treating
doctors' opinions because Dr. Jonas found three
consistent IQ scores to be invalid and
“flippantly” dismissed a diagnosis of bipolar
disorder, stating, “It's massively over applied by
all kinds of people, and if you tell me that one person out
of this whole mix diagnosed bipolar disorder, I'll point
out to you that all the rest of them did not. And it's
massively over applied. . . . It has no meaning.”
(Id. at p. 24) (Tr. 724).
next argues that the RFC is inaccurate because the ALJ
erroneously gave Dr. Tripi's opinion little weight even
though the opinion's functional limitations conformed to
the record as a whole, and the ALJ failed to explain why Dr.
Tripi's functional limitation opinions did not conform to
the record. (Id. at p. 33-34). Instead, the ALJ only
discussed Dr. Tripi's determination that plaintiff's
symptoms were disabling; thus, because the ALJ did not
address the specific functional limitations on which Dr.
Tripi opined, and to which of those he gave the
“limited weight, ” the ALJ erred. Further,
because the ALJ relied on a perceived
“successful” job plaintiff held in 2004 to reject
the opinion that plaintiff could not now work, the ALJ's
opinion is not supported by substantial evidence.
(Id. at p. 35).
Commissioner's Motion for Summary Judgment
response to plaintiff's Step Three argument, the
Commissioner notes as an initial matter that the claimant
bears the burden of proof at Step Three to do more than point
to evidence the ALJ could have relied on to raise a question
as to whether the plaintiff satisfied a Listing. (Dkt. 20 -
Dft.'s Brief, at p. 4) Rather, plaintiff must point to
specific evidence that demonstrates she reasonably could meet
or equal every requirement of the Listing. (Id. at
p. 5) (citing Smith-Johnson v. Comm'r of Soc.
Sec., 579 Fed.Appx. 426, 432 (6th Cir. 2014). The
Commissioner acknowledges that plaintiff argues error only
under Listing 12.04, paragraph “B, ”
(Id. at p. 5), and points out that plaintiff
referred to the wrong version of Listing 12.04 in her brief.
Specifically, she appears to be referring a version that took
effect after the ALJ decision on August 10, 2016.
(Id. at p. 8).
Commissioner argues that substantial evidence supports the
ALJ's conclusion that plaintiff's impairments neither
met nor equaled the severity of 12.04. (Id.; Tr.
662). The ALJ gave great weight to state agency reviewing
psychologist Dr. Kriauciunas who found that plaintiff's
impairments did not meet or equal a listing. (Id. at
p. 5-6; Tr. 515). Although the ALJ did not discuss it, state
agency reviewing psychologist Dr. Nordbrock came to the same
conclusion. (Id. at p. 6; Tr. 575) (citing
Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535
(6th Cir. 2001) (“court may look to any evidence in the
record, regardless of whether it has been cited by the
[ALJ].”)). The ALJ also gave great weight to Dr.
Jonas's hearing testimony. (Id. at p. 6). Dr.
Jonas reviewed the entire medical record and opined that
plaintiff had no marked limitation for purposes of the
paragraph B criteria of the listing. (Id.; Tr.
703-04, 714). As the ALJ noted, “Dr. Jonas is a medical
expert in the field of psychiatry with experience reviewing
Social Security applications, making him well versed in the
application of Social Security rules and regulations.”
(Id.; Tr. 664). Drs. Kriauciunas and Nordbrock are
also experts in Social Security disability evaluation.
(Id.) (citing 20 C.F.R. §§
404.1527(e)(2)(i) & 416.927(e)(2)(i)). The Commissioner
notes that the Sixth Circuit has recognized such expert
opinion evidence amounts to substantial evidence to support
the ALJ's conclusions. (Id. at p. 7) (citing
Helm v. Comm'r of Soc. Sec., 405 Fed.Appx. 997,
1002 (6th Cir. 2011). Plaintiff does not advance a medical
opinion indicating that Listing 12.04 was met or equaled.
(Id. at p. 8).
to the Commissioner, plaintiff's assertion that the ALJ
engaged in “cherry picking” should be rejected.
(Id. at p. 9) (citing DeLong v. Comm'r of
Soc. Sec., 748 F.3d 723, 726 (6th Cir. 2014) (an
allegation of “‘cherry picking' … is
seldom successful because crediting it would require a court
to re-weigh record evidence”). That accusation is
particularly unavailing, posits the Commissioner, in light of
the ALJ's reliance on Dr. Jonas's hearing testimony,
wherein he offered an opinion as to the paragraph
“B” criteria based on a review of the entire
medical record. (Id. at p. 9; Tr. 686, 716, 720).
Commissioner contends that there is no error in the ALJ's
analysis of Dr. Jonas's opinion. (Id. at p. 9).
Plaintiff fails to show that Dr. Jonas unreasonably relied in
part on her 90 days of work as a cashier at Sam's Club.
(Id. at p. 10). Plaintiff bears the burden at Step
Three. Therefore, her acknowledged lack of evidence that she
had any problem at Sam's Club before being fired for
stealing a customer's credit card (Tr. 613, 696, 709-10)
does not upset Dr. Jonas's analysis or the ALJ's
reliance on it. (Id. at p. 10).
Jonas's testimony that bipolar disorder is over-applied
and that the three IQ scores did not reflect her true
abilities has no bearing on whether her impairments meet or
equal Listing 12.04. (Id. at 11). Plaintiff's
argument is, according to the Commissioner, that Dr. Jonas
generally cannot be accepted as an expert in psychiatry, and
that argument is waived because she did not raise such an
objection before the ALJ. (Id. at p. 11) (citing Tr.
688-746). Dr. Jonas's extensive credentials establish
that a reasonable mind can rely on him as an expert in
psychiatry (Id. at p. 11) (citing Tr. 1110-12).
because the ALJ acknowledged Dr. Zerba's report,
including her diagnoses and GAF assessment, plaintiff's
argument that the ALJ did not flesh out Dr. Zerba's
report is unavailing. (Id. at p. 12). The
Commissioner contends that a diagnosis alone says nothing
about the severity of the condition and ...