United States District Court, E.D. Michigan, Southern Division
& ORDER (1) OVERRULING PLAINTIFF’S OBJECTIONS (DKT.
18), (2) ACCEPTING THE RECOMMENDATION OF THE MAGISTRATE JUDGE
(DKT. 17), (3) DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT (DKT. 11), (4) GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT (DKT. 15), AND AFFIRMING THE
COMMISSIONER’S FINAL DECISION
A. GOLDSMITH, UNITED STATES DISTRICT JUDGE
Kevin Tyrone Thomas appeals the final determination of the
Commissioner of Social Security denying his claim for
Disability Insurance Benefits and Supplemental Security
Income benefits. The matter was referred to Magistrate Judge
Patricia T. Morris for a Report and Recommendation
(“R&R”). The parties filed cross-motions for
summary judgment (Dkts. 11, 15), and Magistrate Judge Morris
issued an R&R recommending that the Court grant the
Commissioner’s motion for summary judgment and deny
Thomas’ motion for summary judgment (Dkt. 17). Thomas
filed objections to the R&R (Dkt. 18); the Commissioner
subsequently filed a response (Dkt. 20).
reasons that follow, the Court overrules Thomas’
objections and accepts the recommendation contained in the
magistrate judge’s R&R. The Commissioner’s
motion is granted, and Thomas’ motion is denied. The
final decision of the Commissioner is affirmed.
Court reviews de novo those portions of the R&R to which
a specific objection has been made. See 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72(b). Under 42 U.S.C. §
405(g), this Court’s “review is limited to
determining whether the Commissioner’s decision
‘is supported by substantial evidence and was made
pursuant to proper legal standards.’” Ealy v.
Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir.
2010) (quoting Rogers v. Comm’r of Soc. Sec.,
486 F.3d 234, 241 (6th Cir. 2007)). “Substantial
evidence is ‘such relevant evidence as a reasonable
mind might accept as adequate to support a
conclusion.’” Lindsley v. Comm’r of
Soc. Sec., 560 F.3d 601, 604 (6th Cir. 2009) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)). In
determining whether substantial evidence exists, the Court
may “look to any evidence in the record, regardless of
whether it has been cited by the [Administrative Law Judge
(“ALJ”)].” Heston v. Comm’r of
Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001).
“[T]he claimant bears the burden of producing
sufficient evidence to show the existence of a
disability.” Watters v. Comm’r of Soc. Sec.
Admin., 530 F. App’x 419, 425 (6th Cir. 2013).
makes five objections to the magistrate judge’s
R&R. First, he argues that the magistrate judge erred by
failing to provide a meaningful summary or accurate
description of the medical evidence in the record. Second, he
argues that the magistrate judge erred by considering the
applicability of Social Security Ruling (“SSR”)
96-7p. Third, he argues that the magistrate judge erred by
mischaracterizing Thomas’ argument with respect to his
residual functional capacity (“RFC”). Fourth, he
argues that the magistrate judge erred by failing to address
his argument that Thomas cannot persevere through a normal
work week. Finally, he argues the magistrate judge erred by
stating that the record does not reflect any psychiatric or
neurological deficits. The Court will take each objection in
first objection, Thomas argues that the magistrate judge
erred by failing to provide a meaningful summary or accurate
description of the medical evidence in the record. Obj. at 2.
However, Thomas cites no authority to suggest that the
magistrate judge was required to do so. Nonetheless, the
magistrate judge provided record citations and thorough
evaluation of the record where appropriate to address the
parties’ arguments. Nothing more is required.
Therefore, Thomas’ first objection is overruled.
second objection, Thomas argues that the magistrate judge
erred by applying the incorrect legal standard and by finding
the ALJ properly considered the intensity and persistence of
his symptoms under SSR 16-3p. Obj. at 6-7. Thomas is wrong
on both counts.
magistrate judge used the correct legal standard. She
explained that under SSR 16-3p (the applicable Ruling), an
ALJ must analyze the consistency of the claimant’s
statements with the other record evidence, considering
Thomas’ testimony about pain or other symptoms with the
rest of the relevant evidence in the record and factors
outlined in SSR 16-3p. R&R at 12. However, Thomas has
identified some confusion because the magistrate judge also
cites SSR 96-7p, which was rescinded by SSR 16-3p. SSR 16-3p
rescinded and superseded SSR 96-7p, in part to eliminate the
use of the term “credibility” and to clarify that
“subjective symptom evaluation is not an examination of
an individual’s character.” SSR 16-3p, 2017 WL
5180304 *1 (S.S.A. Oct. 25, 2017). SSR 16-3p directs ALJs to
consider “the individual’s symptoms, including
pain, and the extent to which the symptoms can reasonably be
accepted as consistent with the objective medical and other
evidence in the individual’s record.”
is mistaken that the magistrate judge applied the wrong SSR.
The magistrate judge noted that although SSR 16-3p rescinded
SSR 96-7p, the underlying regulation, 20 C.F.R. §
404.1529(c), has remained materially unchanged. R&R at 12
n.3. She further notes that she agrees with other courts in
this district that SSR 96-7p should be applied to cases
arising prior to its rescission. R&R at 12 n.3. These
observations are uncontroversial and are explicit in SSR
16-3p at *1. The better reading of the magistrate
judge’s statements is that because SSR 16-3p and SSR
96-7p are materially the same as to the underlying
regulation, decisions discussing SSR 96-7p’s
application provide useful analysis to the extent that they
do not follow the credibility concerns explicitly rejected by
SSR 16-3p. This reading is borne out by the magistrate
judge’s analysis where she applies both SSR 16-3p and
SSR 96-7p and applicable cases to review Thomas’
subjective symptoms. See R&R at 13-17. The
magistrate judge did not apply the incorrect legal standard.
is also mistaken that the ALJ did not properly consider the
intensity and persistence of his symptoms under SSR 16-3p. He
argues that the ALJ merely gave “lip service” to
the SSR 16-3p analysis. Obj. at 8. Not true. The ALJ followed
the two-step analysis required by SSR 16-3p. First, the ALJ
found that Thomas had medically determinable impairments
(diabetes mellitus, peripheral neuropathy, and hypertension)
that could reasonably be expected to produce his alleged
symptoms (inability to work due to foot and leg pain). Admin.
Record “AR” 15-19 (Dkt. 9). Second, he considered
Thomas’ subjective statements with respect to
intensity, persistence, and the functionally limiting effects
of his pain in light of the objective medical evidence.
Id. The ALJ was required to “examine the
entire case record, including the objective medical evidence;
an individual’s statements about the intensity,
persistence, and limiting effects of symptoms; statements and
other information provided by medical sources and other
persons; and any other relevant evidence in the
individual’s case record.” SSR 16-3p at *4.
conducted a thorough examination of the record. Thomas
alleges a period of disability beginning July 1, 2015 through
the date of the ALJ’s decision, October 25, 2017. AR
10. The ALJ detailed Thomas’ medical history starting
with Thomas’ hospitalization in late April 2015 for
uncontrolled hypertension and chest pain. AR 15. The ALJ
described Thomas’ treatment with Dr. Ali Owda and Dr.
Imad Modawi, specialists in kidney disease and hypertension,
his dangerous blood sugar levels in May 2015, and the testing
the following month revealing mild to moderate sensory
peripheral neuropathy of his lower extremities (likely due to
diabetes). AR 16. By August 13, 2015, Dr. Modawi wrote to
Thomas’ primary physician, Dr. Julian Moore, to report
that Thomas “has been doing fairly well.” AR 229.
Thomas showed no lower extremity edema. Id.
noted that Thomas suffered from foot ulcers secondary to
diabetes mellitus in February 2016 and that he was referred
to a pain clinic, although there is no evidence that he took
advantage of the pain clinic’s services. Id.
By April 2016, Dr. Modawi again noted that Thomas “has
been doing fairly well, ” and observed no lower
extremity edema. AR 471-472. In January 2017, Thomas’
cardiologist reported that Thomas was “doing quite
well, ” and that he reported no “symptoms of
chest pain, shortness of breath, dizziness, lightheadedness,
palpitations, presyncope or syncope.” AR 514. The