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Thomas v. Commissioner of Social Security

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

September 26, 2019

KEVIN TYRONE THOMAS, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

         OPINION & 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

          MARK A. GOLDSMITH, UNITED STATES DISTRICT JUDGE

         Plaintiff 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).

         For the 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.

         I. LEGAL STANDARD

         The 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).

         II. ANALYSIS

         Thomas 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 turn.

         A. Objection One

         In his 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.

         B. Objection Two

         In his 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.[1] Thomas is wrong on both counts.

         The 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.” Id.

         Thomas 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.

         Thomas 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.

         The ALJ 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.

         The ALJ 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 ...


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