REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (DE 11), GRANT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DE 14) and AFFIRM THE COMMISSIONER'S DECISION

ANTHONY P. PATTI, Magistrate Judge.

I. RECOMMENDATION: For the reasons that follow, it is RECOMMENDED that the Court DENY Plaintiff's motion for summary judgment (DE 11), GRANT Defendant's motion for summary judgment (DE 14), and AFFIRM the Commissioner's decision.

II. REPORT

Plaintiff, Tamika Cherise Grant, brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of a final decision of the Commissioner of Social Security ("Commissioner") denying her applications for disability income (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 11), the Commissioner's cross-motion for summary judgment (DE 14), and the administrative record (DE 8).

A. Background and Administrative History

Plaintiff's applications allege that her disability began on January 1, 2013 and January 1, 2014, at the ages of 44 and 45. (R. at 149, 151.) She lists several conditions (patellofemoral arthritis, chondromalacia of patella,1 and degenerative joint disease (DJD)) that limit her ability to work. (R. at 174.) Her applications were denied on January 12, 2015. (R. at 62-93.)

Plaintiff requested a hearing by an Administrative Law Judge ("ALJ"). (R. at 97-98.) ALJ Roy E. LaRoche, Jr., held a hearing on March 23, 2016, at which Plaintiff and a vocational expert (VE), Don K. Harrison, testified. (R. at 25-61.) He issued an opinion on May 19, 2016, which determined that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 9-24.) On July 13, 2017, the Appeals Council denied Plaintiff's request for review. (R. at 1-5, 8.) Thus, ALJ LaRoche's decision became the Commissioner's final decision.

Plaintiff timely commenced the instant action on August 25, 2017. (DE 1.)

B. Plaintiff's Medical History

The administrative record contains approximately 670 pages of medical records, all of which was available to the ALJ at the time of his decision. (R. at 24, 218-887 [Exhibits 1F — 18F].) They will be discussed in detail, as necessary, below.

C. The Administrative Decision

Pursuant 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 January 1, 2013, the alleged onset date. (R. at 14.) At Step 2, the ALJ found that Plaintiff had the following severe impairments: osteoarthritis of the bilateral knees (status-post right knee arthroplasty and left knee arthroscopy), right foot hallux valgus and degenerative disc disease (DDD. the lumbar spine. (Id. at 14-16.) 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 16.) Between Steps 3 and 4 of the sequential process, the ALJ evaluated Plaintiff's residual functional capacity ("RFC")2 and determined that Plaintiff had the RFC:

(Id. at 16-19.) At Step 4, the ALJ determined that Plaintiff was unable to perform any past relevant work. (R. at 19.) At Step 5, considering Plaintiff's age, education, work experience, and RFC, the ALJ found that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. (R. at 19-20.) The ALJ therefore concluded that Plaintiff had not been under a disability, as defined in the Social Security Act, from January 1, 2013, through the date of the decision. (R. at 20.)

D. Standard of Review

The 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.").

Although 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)).

E. Analysis

Plaintiff sets forth four arguments:

(DE 11 at 3, 10-18.)

The Commissioner argues that Plaintiff "cannot sustain her burden of establishing that the ALJ committed reversible error when he assessed Plaintiff's RFC." (DE 13 at 3, 5-27.)

1. Physical RFC assessment

Plaintiff's first three statements of error concern her physical impairments. At Step 2, the ALJ determined that Plaintiff's severe impairments included osteoarthritis of the bilateral knees (status-post right knee arthroplasty and left knee arthroscropy), right foot hallux valgus, and DJD of the lumbar spine, but the ALJ also determined that Plaintiff's eczema was non-severe. (R. at 14.) At Step 3, the ALJ determined that Plaintiff's knee impairments and DDD did not meet Listings 1.02A and 1.04. (R. at 16.) The ALJ then determined that Plaintiff had the RFC to perform light work, with additional exertional, postural, and environmental limitations. (R. at 16.)

a. Opinion evidence generally

ALJ LaRoche stated that he "considered opinion evidence in accordance with the requirements of 20 CFR 404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p and 06-3p." (R. at 17.) As expressed in her 1st statement of error, Plaintiff disagrees; she claims that the ALJ did not comply with 20 C.F.R. §§ 404.1527, 416.927 by "failing to accord adequate weight to the opinion of the Plaintiff's treating physicians." (DE 11 at 10-12.)

The SSA "will always give good reasons in [its] notice of determination or decision for the weight [it] give[s] [a Plaintiff's] treating source's medical opinion." 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). "[T]he notice of the determination or decision [regarding a denial of benefits] must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight." SSR 96-2P, 1996 WL 374188 at *5 (S.S.A. July 2, 1996).

b. The ALJ's treatment of physical opinion evidence

As pertinent to this statement of error, the ALJ:

(R. at 18.) Having identified Drs. Marsheh, Wimmer, Scott and Harris, respectively, as "a treating source," "claimant's neurologist," "claimant's orthopedic surgeon," and "claimant's physician," it is clear the ALJ discounted these opinions after he considered the examining relationship and treatment relationship factors, and, at least as to Drs. Wimmer and Scott, the specialization factor. 20 C.F.R. §§ 404.1527(c)(1),(2),(5), 416.927(c)(1),(2),(5). Moreover, as Plaintiff at least partially acknowledges, "[a] doctor's conclusion that a patient is disabled from all work may be considered . . ., but could `never be entitled to controlling weight or given special significance' because it may invade the ultimate disability issue reserved to the Commissioner." Gentry v. Commissioner of Social Sec., 741 F.3d 708, 727 (6th Cir. 2014) (quoting SSR 96-5P, 1996 WL 374183 at *5 (S.S.A. July 2, 1996)); (DE 11 at 12). See also 20 C.F.R. §§ 404.1527(d), 416.927(d) ("Medical source opinions on issues reserved to the Commissioner.").

c. Discussion

Nonetheless, with scant analysis, Plaintiff directs the Court's attention to the following pieces of evidence, which she contends are consistent with the opinions of Drs. Marsheh, Wimmer and Scott:

(DE 11 at 11-12.) Still, as the Commissioner points out, "[t]he mere diagnosis of [a condition], of course, says nothing about the severity of the condition." Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988). (See DE 14 at 12.)

More to the point, Plaintiff arguably contends that the ALJ should have adopted Drs. Marsheh, Wimmer and Scott's opinions on the bases of the supportability and/or consistency factors. 20 C.F.R. §§ 404.1527(c)(3),(4), 416.927(c)(3),(4). However, it is not this Court's job to re-weigh the evidence. Mullins v. Sec'y of Health & Human Servs., 680 F.2d 472, 472 (6th Cir. 1982) ("Our task is not to reweigh the evidence. That is solely the province of the Secretary.") (citing Wokojance v. Weinberger, 513 F.2d 210 (6th Cir. 1975)). In this case, the factors considered by the ALJ in weighing Drs. Marsheh, Wimmer, Scott and Harris's medical opinions are "clear to [this] subsequent reviewer[]" and the ALJ gave good and clear reasons for his treatment of this opinion evidence. SSR 96-2P. Pointing out that there is evidence in the record to support a contrary conclusion will not suffice, as the Court defers to an ALJ's findings that are supported by substantial evidence "even if there is substantial evidence in the record that would have supported an opposite conclusion." Blakley, 581 F.3d at 406 (internal quotations omitted). As such, the ALJ's RFC determination of light work — with additional exertional, postural, and environmental limitations — should stand.

2. Credibility

a. Sustained physical work activity

Plaintiff's 2nd statement of error is that substantial evidence "does not support a finding that Plaintiff can perform sustained work activities." (DE 11 at 12-15.) Here, as Plaintiff points out, "[a] `regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule." SSR 96-8P, 1996 WL 374184 at *1 (S.S.A. July 2, 1996). She also directs the Court's attention to the differences between "sedentary work" and "light work," as described in SSR 83-10. (DE 11 at 13-14.)

Plaintiff claims that, "[d]espite undergoing physical therapy, epidural steroid injections and faithfully taking pain medication," she "continues to constantly experience pain in her knees and back." (DE 11 at 14.) In support of this statement, Plaintiff cites:

(Id.) Plaintiff argues, in conclusory fashion, that an individual, such as herself, "who regularly experiences difficulty walking without an assistive device [and] stiffness due to swollen legs," would not be able to perform light or sedentary work. (DE 11 at 14.)

This statement of error is unavailing, and its foundation is unclear. To the extent this statement of error challenges the ALJ's determination that Plaintiff is exertionally limited to "light work," with some further exertional limitations, her references to SSR 96-8p and SSR 83-10 and citations to "pain in her knees and back," "difficulty walking without an assistive device," and "stiffness due to swollen legs," etc., do not necessarily equate with being unable to perform the lifting, carrying, standing, walking, sitting, pushing, and pulling requirements of light work. 20 C.F.R. §§ 404.1567(b), 416.967(b). (DE 11 at 13-14.) And, she fails to convincingly explain why the Court should reach such an emphatic conclusion. To the extent this statement of error challenges the ALJ's credibility determination, Plaintiff's argument is undeveloped, as it does not explain how ALJ LaRoche's May 19, 2016 decision was errant under 20 C.F.R. §§ 404.1529, 416.929 (effective June 13, 2011 to March 26, 2017). Finally, to the extent this statement of error is based upon the ALJ's failure to order a consultative examination under "the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits," Sims v. Apfel, 530 U.S. 103, 11 (2000) (see DE 11 at 14-15), the SSA has discretion as to whether to do so. See 20 C.F.R. §§ 404.1517, 416.917 ("If your medical sources cannot or will not give us sufficient medical evidence about your impairment for us to determine whether you are disabled or blind, we may ask you to have one or more physical or mental examinations or tests.") (emphasis added). Plaintiff fails to establish that the existing medical sources within the administrative record were unable or failed to provide sufficient medical information for the ALJ to make a determination as to her physical capabilities, even if he afforded little or no weight to specific opinions by Drs. Marsheh, Wimmer, Scott and Harris.

b. Credibility

Plaintiff's 3rd statement of error challenges the ALJ's credibility finding. (DE 11 at 15-16.) ALJ LaRoche stated that he "considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 CFR 404.1529 and 416.929 and SSR 96-4p." (R. at 17.) Ultimately, the ALJ concluded that Plaintiff's "statements concerning the intensity, persistence and limiting effects of [her alleged] symptoms are not entirely consistent with the medical evidence and other evidence." (Id.)

"In determining whether you are disabled," the SSA will "consider all your symptoms, including pain, and the extent to which your symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence." 20 C.F.R. §§ 404.1529(a), 416.929(a). When "[e]valuating the intensity and persistence of your symptoms, such as pain, and determining the extent to which your symptoms limit your capacity for work[,]" the SSA will consider "objective medical evidence" and "other evidence." 20 C.F.R. §§ 404.1529(c)(2),(3), 416.929(c)(2),(3). The SSA will consider "[f]actors relevant to your symptoms," including:

20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).

Plaintiff claims that ALJ LaRoche did not consider that her "persistent efforts to obtain pain relief enhanced h[er] credibility as set forth in SSR 96-7p." (DE 11 at 15.) As Plaintiff points out,

SSR 96-7P, 1996 WL 374186, *7 (S.S.A. July 2, 1996) (footnote omitted). See also SSR 16-3P, 2017 WL 5180304, *9 (S.S.A. Oct. 25, 2017) ("Persistent attempts to obtain relief of symptoms, such as increasing dosages and changing medications, trying a variety of treatments, referrals to specialists, or changing treatment sources may be an indication that an individual's symptoms are a source of distress and may show that they are intense and persistent.").

Here, Plaintiff cites a multitude of records to document her chondromalacia, including, but not limited to: (a) her August 20, 2014 left knee arthroscopy (R. at 278-286); (b) Dr. Nabity's October 27, 2015 notes about her December 2014 right knee replacement, which provided a "less than optimal result," (R. at 787); and, (c) a November 7, 2015 MRI of the right knee (R. at 702). (DE 11 at 15-16.) Plaintiff also refers to a November 16, 2015 lumbar epidurogram, which followed an MRI that revealed "multi level disc disease. . . ." (DE 11 at 16, R. at 786-787.)

However, even if "[t]he record establishes not only chronic knee and back pain," but also "frequent and consistent efforts by Plaintiff to seek solutions to these chronic impairments[,]" (DE 11 at 16), the ALJ's opinion acknowledges:

(R. at 17-19; see also R. at 35-37, 278-286, 529-532, 545-546, 702.) Thus, it is clear that the ALJ took these forms of "treatment modalities" or this "variety of treatments" into consideration. (See SSR 96-7p, SSR 16-3p.) Stated otherwise, these acknowledgements by the ALJ reflect his consideration of "[t]reatment, other than medication," that Plaintiff receives or received "for relief of . . . pain or other symptoms[.]" 20 C.F.R. §§ 404.1529(c)(3)(v), 416.929(c)(3)(v).

Moreover, the Court notes that, at the hearing, Plaintiff testified that her pain medication causes drowsiness, she takes this medication every six to eight hours, and it helps relieve her pain "for a short period of time[.]" (R. at 40, 52-53.) Plaintiff also testified that she had a shot in her left knee "to give moisture in between the bones, so it wouldn't be so painful by it being bone to bone." (R. at 41.) Plaintiff also testified about Dr. Wimmer's recommendations for back treatment and Dr. Fremont's direction to use a cane. (R. at 44-45.) Additionally, Plaintiff testified that her most comfortable position when she is in pain is "to sit with [her] legs straight out . . . [,]" such as supporting her legs with a pillow and resting them on an ottoman. (R. at 51-52.) Not only was ALJ LaRoche present at the March 23, 2016 hearing (R. at 25, 27), his May 19, 2016 decision notes that "[s]he stated she used a walker after surgery but transitioned to a cane[,]" (R. at 17). Thus, it is clear that the ALJ was informed by Plaintiff's medication and the measures she uses to alleviate or relieve her pain. 20 C.F.R. §§ 404.1529(c)(3)(iv),(vi), 416.929(c)(3)(iv),(vi).

Plaintiff has not shown that the ALJ was errant in his credibility determination. Therefore, it should stand.

3. The absence of mental RFC limitations

Plaintiff's 4th statement of error concerns her mental impairment(s). At Step 2, the ALJ determined that Plaintiff's anxiety/post-traumatic stress disorder "does not cause more than minimal limitation in the claimant's ability to perform basic mental work activities and is therefore nonsevere." (R. at 15.) In particular, the ALJ cited:

(Id.) Then, with express citations to Plaintiff's function report, the ALJ observed that Plaintiff had mild limitations in activities of daily living, social functioning, and concentration, persistence or pace (CPP), and "no episodes of decompensation which have been of extended duration[,]" and found that Plaintiff's "medically determinable mental impairment causes no more than `mild' limitation in any of the first three functional areas and `no' episodes of decompensation which have been of extended duration in the fourth area[.]" (R. at 15-16, 182-189.) Consistently, the ALJ's RFC assessment does not include any mental health limitations, such as those related to understanding and memory, sustained concentration and persistence, social interaction or adaptation. (Id.)

Within this final statement of error, Plaintiff argues that the ALJ did not properly assess her mental RFC, as required by SSR 96-8p and SSR 85-15, because the "RFC assessment does not consider the impact of [her mental health] impairment on functional ability. . . ." (DE 11 at 16.) "In assessing RFC, the adjudicator must consider limitations and restrictions imposed by all of an individual's impairments, even those that are not `severe.'" SSR 96-8P, 1996 WL 374184, *5 (S.S.A. July 2, 1996). As noted in detail above, the ALJ did so here, albeit within his Step 2 discussion. That this analysis occurred at Step 2 does not mean that the ALJ did not consider these mental health impairments in forming Plaintiff's RFC. "`[N]o purpose would be served' and no different outcome would result by remanding for the ALJ to revisit the RFC only to restate its analysis in step two." Thomas v. Colvin, No. 0:14-CV-129-JMH, 2015 WL 1281701, at *4 (E.D. Ky. Mar. 20, 2015) (quoting Kornecky v. Comm'r of Soc. Sec., 167 F. App'x 496, 507 (6th Cir. 2006)).

More to the point, Plaintiff seems to be challenging the ALJ's failure to express her abilities to "understand, carry out, and remember instructions; use judgment in making work-related decisions; respond appropriately to supervision, co-workers and work situations; and deal with changes in a routine work setting." (Id., at *6.) In this regard, Plaintiff correctly notes this Court's direction that:

Biehl v. Comm'r of Soc. Sec., No. 14-10293, 2015 WL 736366, at *21 (E.D. Mich. Feb. 20, 2015) (O'Meara, J., adopting report and recommendation of Hluchaniuk, M.J.). (DE 11 at 17.)

As noted above, ALJ LaRoche considered Plaintiff's psychologist's records at Step 2. (R. at 15, 817-820.) Then, within the RFC determination, ALJ LaRoche assigned "little weight" to any of the Global Assessment of Functioning (GAF) scores. (R. at 18-19.)4 Thus, although to a limited extent, the ALJ expressly discussed Plaintiff's mental health within the RFC determination. However, even if, for the sake of argument, the ALJ's Step 2 and RFC assessment mental health discussions were insufficient under Biehl, the Commissioner quotes case law from this Court, which pertinently explains that . . .

Shamsud-Din v. Comm'r of Soc. Sec., No. 16-CV-11818, 2017 WL 3574694, at *6 (E.D. Mich. July 24, 2017) (Majzoub, M.J.), report and recommendation adopted, No. 16-CV-11818, 2017 WL 3531438 (E.D. Mich. Aug. 17, 2017) (Steeh, J.). (DE 14 at 23-24.)5

Here, as in Shamsud-Din, Plaintiff "has not met her burden. . . ." Shamsud-Din, 2017 WL 3574694, *7. According to Plaintiff, the record "continually provides that [she] has significant difficulty controlling her anxiety and panic attacks." (DE 11 at 17.) However, in doing so, she provides only one medical record citation — the June 1, 2015 intake assessment form, which states, inter alia, that "[t]he client has racing heart beat at times[,]" and "[t]he client does not sleep throughout the night." (R. at 830.)6 The only other record cite within this statement of error is to her testimony about the efficacy of her medication and its side effect(s). (DE 11 at 17, R. at 52; see also R. at 40, 46.) Plaintiff's statement that, given "this medical history," the "mental demands of substantially gainful work activity would be arduous[,] if possible at all[,]" (DE 11 at 17), is not convincing. Beyond the claim about "her poor sleep hygiene" negatively effecting her work performance, Plaintiff proposes that "changes in work setting" and "interactions with others" would "surely contribute to her being off task[] and overwhelmed[,]" and contends that the ALJ did not seriously entertain these considerations. (DE 11 at 17-18 (emphasis added).) Without any citation to the record for this conclusory statement, it should be deemed undeveloped, and the Undersigned is unwilling to leap to such a certainty.

Plaintiff not having shown error in the ALJ's consideration of her anxiety/post-traumatic stress disorder — either at Step 2 or within the RFC determination — the absence of mental RFC limitations should stand.

F. Conclusion

For the foregoing reasons, it is RECOMMENDED that the Court DENY Plaintiff's motion for summary judgment (DE 11), GRANT Defendant's motion for summary judgment (DE 14), and AFFIRM the Commissioner of Social Security's decision.

III. PROCEDURE ON OBJECTIONS

The parties to this action may object to and seek review of this Report and Recommendation, but are required to file any objections within 14 days of service, as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 72.1(d). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec'y of Health & Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sec'y of Health & Hum. Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1273 (6th Cir. 1987). Pursuant to Local Rule 72.1(d)(2), any objections must be served on this Magistrate Judge.

Any objections must be labeled as "Objection No. 1," and "Objection No. 2," etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than 14 days after service of an objection, the opposing party may file a concise response proportionate to the objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR 72.1(d). The response must specifically address each issue raised in the objections, in the same order, and labeled as "Response to Objection No. 1," "Response to Objection No. 2," etc. If the Court determines that any objections are without merit, it may rule without awaiting the response.