United States District Court, E.D. Michigan, Southern Division
Patricia T. Morris Magistrate Judge.
OPINION AND ORDER ACCEPTING MAGISTRATE JUDGE'S
RECOMMENDATION , DENYING PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT , AND GRANTING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT 
J. MICHELSON U.S. DISTRICT JUDGE.
2010, Alisha Moon has suffered from periodic seizures. And in
September 2013, a seizure caused her to fall from a barstool
and break at least one facet of her cervical vertebrae.
next month, Moon applied for benefits under the Social
Security Act asserting that her seizures and cervical
fracture kept her from working full time. After the
Commissioner of Social Security denied Moon's
applications, she requested a hearing before an
administrative law judge. In August 2015, an ALJ ruled that
Moon was not disabled under the Social Security Act.
Moon's request for further administrative review was
then filed this lawsuit, asserting that the ALJ erred in a
number of ways and so this Court should either reverse the
finding that she is not disabled or, at least, remand the
case for further administrative proceedings. The parties'
motions for summary judgment were referred to Magistrate
Judge Patricia T. Morris who recommends that this Court
affirm the decision that Moon is not disabled under the
Social Security Act. (R. 15.)
objects. (R. 16.) She asserts that the Magistrate Judge erred
by concluding (1) that the ALJ did not need to have a
psychologist or psychiatrist evaluate her mental health and
(2) that the ALJ did not need to obtain an updated
consultative exam after she fell and fractured her cervical
Court takes the two objections in turn. Having examined both
issues anew, see 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b)(3), the Court will overrule Moon's
Court first addresses the Commissioner's argument that
this Court does not have to reach the merits of Moon's
first objection. (See R. 16, PID 647.) To understand
the Commissioner's procedural argument, some more
procedural history is in order.
summary-judgment brief, Moon argued that 20 C.F.R. §
404.1503(e) (and the identically-worded provision for
supplemental-security income, § 416.903(e)) required the
ALJ to obtain a psychologist's or psychiatrist's
evaluation of her mental condition. (R. 9, PID 583.) As the
ALJ had ordered no such evaluation, Moon claimed that this
case had to be remanded so that evaluation could be
conducted. (R. 9, PID 585.)
Judge Morris was unpersuaded. She found that §
404.1503(e) only applied at the initial-determination level
and thus did not apply when a disability claim reached ALJ
review. (R. 15, PID 626.) She further found that even if
§ 404.1503(e) applied to ALJ review, that regulation
required a professional mental-health evaluation only when
“there is evidence which indicates the existence of a
mental impairment.” (See R. 15, PID 626-27.)
According to the Magistrate Judge, while the record reflected
“some whispers as to mental illness, ” the
evidence of mental impairment was insufficient to meet §
404.1503(e)'s “indicates the existence of”
requirement. (R. 15, PID 627.)
objections to this Court, Moon says that § 404.1503(e),
“as well as [42 U.S.C.] § 421(h), ”
“require[d] review by a psychiatrist or psychologist
whenever there is evidence which indicates the existence of a
mental impairment.” (R. 16, PID 634.) She also says
that the record of her seizure disorder and mental health is
like the record in Lahoz v. Astrue, No. 09-CV-4523,
2010 WL 3310266 (E.D.N.Y. Aug. 19, 2010). (See R.
16, PID 635.) And in that case, the court suggested that
§ 421(h) applied to ALJ review. See Id. at *7.
Commissioner asserts that these arguments are either
procedurally improper or otherwise do not need to be
addressed on the merits. In particular, the Commissioner
points out that Moon never cited Lahoz in her
summary-judgment briefing and so any argument based on that
case is “waived.” (R. 17, PID 648.) And, says the
Commissioner, Moon has not objected to the Magistrate
Judge's alternate holding (that even if §
494.1503(e) applied to ALJ review, the evidence of
mental-impairment was insufficient to meet that
regulation's threshold for a professional evaluation).
(See R. 17, ...