United States District Court, E.D. Michigan, Southern Division
COHN, DISTRICT JUDGE
REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT (DE 13), GRANT DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT (DE 14) AND AFFIRM THE
ANTHONY P. PATTI, UNITED STATES MAGISTRATE JUDGE
RECOMMENDATION: For the reasons that follow, it is
RECOMMENDED that the Court
DENY Plaintiff's motion for summary
judgment (DE 13), GRANT Defendant's
motion for summary judgment (DE 14), and
AFFIRM the Commissioner's decision.
Janice Renae Maciag, brings this action under 42 U.S.C.
§§ 405(g), 1383(c)(3) for review of a final
decision of the Commissioner of Social Security
(“Commissioner”) denying her applications for
disability insurance (DI) and supplemental security income
(SSI) benefits. This matter is before the United States
Magistrate Judge for a Report and Recommendation on
Plaintiff's motion for summary judgment (DE 13), the
Commissioner's cross-motion for summary judgment (DE 14),
and the administrative record (DE 10).
Background and Administrative History
alleges her disability began on February 21, 2015, at the age
of 43. (R. at 199, 197.) In her disability report, she lists
several conditions (heart disease, multiple heart attacks,
high blood pressure, diabetes, depression, and sleep apnea)
as limiting her ability to work. (R. at 216.) Her
applications for DI and SSI benefits were denied in March 24,
2016. (R. at 98-147.)
requested a hearing by an Administrative Law Judge
(“ALJ”). (R. at 151-152.) On February 15, 2017,
ALJ Allison Dietz held a hearing, at which Plaintiff and a
vocational expert (VE), James Lozer, Ed.D. testified. (R. at
36-97, 260.) On May 22, 2017, ALJ Dietz issued an opinion,
which determined that Plaintiff was not disabled within the
meaning of the Social Security Act. (R. at 17-35.)
submitted a request for review of the hearing decision/order.
(R. at 190-192.) However, on March 23, 2018, the Appeals
Council denied Plaintiff's request for review. (R. at
1-7.) Thus, ALJ Dietz's decision became the
Commissioner's final decision.
timely commenced the instant action on May 16, 2018.
Plaintiff's Medical History
administrative record contains approximately 486 pages of
medical records, which were available to the ALJ at the time
of her May 22, 2017 decision. (R. at 268-753 [Exhibits
1F-15F].) These materials will be discussed in detail, as
The Administrative Decision
to 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), at
Step 1 of the sequential evaluation process,
the ALJ found that Plaintiff had not engaged in substantial
gainful activity since February 21, 2015, the alleged onset
date (AOD). (R. at 22.) At Step 2, the ALJ
found that Plaintiff had the following severe impairments:
obesity, diabetes, coronary artery disease (CAD), sleep
apnea, depression, anxiety, carpal tunnel syndrome (CTS),
major joint dysfunction, and disorders of the spine.
(Id. at 22-23.) At Step 3, the ALJ
found that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the
severity of one of the listed impairments. (Id. at
23-25.) Between Steps 3 and 4 of the
sequential process, the ALJ evaluated Plaintiff's
residual functional capacity
(“RFC”) and determined that Plaintiff had the RFC
to perform sedentary work, with various other postural,
manipulative, environmental, and mental health limitations.
(Id. at 25-28.) At Step 4, the ALJ
determined that Plaintiff was unable to perform any past
relevant work. (Id. at 28-29.) At Step
5, considering Plaintiff's age, education, work
experience, and RFC, the ALJ determined that there were jobs
that existed in significant numbers in the national economy
that Plaintiff could perform, such as a surveillance system
monitor and an order clerk. (Id. at 30-31.) The ALJ
therefore concluded that Plaintiff had not been under a
disability, as defined in the Social Security Act, from
February 21, 2015, through the date of the decision.
(Id. at 31.)
Standard of Review
District Court has jurisdiction to review the
Commissioner's final administrative decision pursuant to
42 U.S.C. § 405(g). When reviewing a case under the
Social Security Act, the Court “must affirm the
Commissioner's decision if it ‘is supported by
substantial evidence and was made pursuant to proper legal
standards.'” Rabbers v. Comm'r of Soc.
Sec., 582 F.3d 647, 651 (6th Cir. at 2009) (quoting
Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241
(6th Cir. at 2007)); see also 42 U.S.C.
§ 405(g) (“[t]he findings of the Commissioner of
Social Security as to any fact, if supported by substantial
evidence, shall be conclusive . . . .”). Under this
standard, “substantial evidence is defined as
‘more than a scintilla of evidence but less than a
preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a
conclusion.'” Rogers, 486 F.3d at 241
(quoting Cutlip v. Sec'y of Health & Human
Servs., 25 F.3d 284, 286 (6th Cir. 1994)). In deciding
whether substantial evidence supports the ALJ's decision,
the court does “not try the case de novo,
resolve conflicts in evidence or decide questions of
credibility.” Bass v. McMahon, 499 F.3d 506,
509 (6th Cir. 2007); Rogers, 486 F.3d at 247
(“It is of course for the ALJ, and not the reviewing
court, to evaluate the credibility of witnesses, including
that of the claimant.”).
the substantial evidence standard is deferential, it is not
trivial. The Court must “‘take into account
whatever in the record fairly detracts from [the]
weight'” of the Commissioner's decision.
TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002)
(quoting Universal Camera Corp. v. NLRB, 340 U.S.
474, 487 (1951)). Nevertheless, “if substantial
evidence supports the ALJ's decision, this Court defers
to that finding ‘even if there is substantial evidence
in the record that would have supported an opposite
conclusion.'” Blakley v. Comm'r of Soc.
Sec., 581 F.3d 399, 406 (quoting Key v.
Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). Finally,
even if the ALJ's decision meets the substantial evidence
standard, “‘a decision of the Commissioner will
not be upheld where the SSA fails to follow its own
regulations and where that error prejudices a claimant on the
merits or deprives the claimant of a substantial
right.'” Rabbers, 582 F.3d at 651 (quoting
Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746
(6th Cir. 2007)).
contends that the ALJ erred in her consideration of the
opinion evidence and in her credibility assessment. (DE 13 at
8-12.) The Commissioner contends that the ALJ
properly assessed Plaintiff's RFC and subjective
complaints. (DE 14 at 5-15.)
review of the opinion evidence, the ALJ assigned:
(a) “limited weight” to the
physical RFC assessment of state agency medical consultant
Robin Mika, D.O. (R. at 108-111, 124-127);
(b) “some weight” to the mental
RFC assessment of state agency psychological consultant Rom
Kriauciunas, Ph.D. (R. at 111-113, 127-129);
(c) “great weight” to the
consultative examination report of Hugh D. Bray, Ph.D., a
licensed psychologist (R. at 587-592); and,
(d) “partial weight” to the
medical source statement (MSS) of John Slaim, D.O., which was
also signed by Michelle Dolson, ANP-BC (Adult Nurse
Practitioner-Board Certified). (R. at 748-751). (R. at
Discounting Dolson's / Dr. John Slaim's MSS
treated with the Slaim Office -- Michelle Dolson, ANP-BC,
John Slaim, D.O., Abraham Slaim, D.O. -- as
early as April 23, 2013. (See R. at 303-378 [Ex.
2F], 560-573 [Ex. 5F], 593-615 [Ex. 9F], 635-736 [Ex. 12F]).
The ALJ cited many of these exhibits in her review of
Plaintiff's musculoskeletal impairments, diabetes, CAD
and sleep apnea. (R. at 26-27.) As to musculoskeletal
impairments, the ALJ noted, inter alia:
However, despite these complaints, examination notes showed
she was negative for joint pain, stiffness, muscle pain,
tenderness, edema, or weakness (EX. 1F/29; 2F/10; 4F/20, 28;
88, 97 [R. at 296, 312, 401, 409, 469, 478]). The claimant
generally had normal strength, sensation, range of motion and
reflexes throughout her body (EX. 4F/25, 29, 88 [R. at 406,
(R. at 26.)
in assigning “partial weight” to the functional
limitations set forth in Dolson's / Dr. John Slaim's
January 16, 2017 MSS, the ALJ explained:
While the claimant would be limited to a range of sedentary
work, there is no evidence that the claimant is limited to
this degree. Her examination notes showed she was negative
for joint pain, stiffness, muscle pain, tenderness, edema, or
weakness. The claimant generally had normal strength,
sensation, range of motion and reflexes throughout.
(R. at 28, 750.) In other words, the ALJ discounted Dr.
Slaim's functional limitations on the basis of the
supportability and/or consistency factors. 20 C.F.R.
§§ 404.1527(c)(3), (4), 416.927(c)(3), (4).
takes issue with the ALJ's assignment of “only
‘partial weight' to the treating doctor, Dr. John
Slaim.” (DE 13 at 8.) Plaintiff argues that “Dr.
laim's records for over five years of consistent
treatment, do support such finds and such limitations.”
(DE 13 at 9.) Ultimately arguing ...