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Moon v. Commission of Social Security

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

March 21, 2018

ALISHA MOON, Plaintiff,
v.
COMMISSION OF SOCIAL SECURITY, Defendant.

          Patricia T. Morris Magistrate Judge.

          OPINION AND ORDER ACCEPTING MAGISTRATE JUDGE'S RECOMMENDATION [15], DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [9], AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [14]

          LAURIE J. MICHELSON U.S. DISTRICT JUDGE.

         Since 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.

         The 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 denied.

         Moon 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.)

         Moon 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 facets.

         The 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 objections.

         I.

         A.

         The 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.

         In her 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.)

         Magistrate 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.)

         In her 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.

         The 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, ...


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