Dimarzio v. Social Security, Commissioner of

Filing 45

ORDER Adopting Magistrate Judge's Report and Recommendation 42 . Signed by District Judge Gerald E. Rosen. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANTHONY J. DIMARZIO,
Plaintiff,
Case No. 11-15635
Hon. Gerald E. Rosen
Magistrate Judge Charles E. Binder

v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
_______________________________/

ORDER ADOPTING
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
At a session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
on
November 20, 2013
PRESENT: Honorable Gerald E. Rosen
Chief Judge, United States District Court
On June 24, 2013, Magistrate Judge Charles E. Binder issued a Report and
Recommendation (“R & R”) recommending that the Court deny Plaintiff Anthony
Dimarzio’s motion for summary judgment and grant the Defendant Commissioner of
Social Security’s motion for summary judgment. Plaintiff filed objections to the R & R
on July 3, 2013, and Defendant responded to these objections on July 17, 2013. Having
reviewed the R & R, Plaintiff’s objections, the parties’ underlying summary judgment
motions, and the remainder of the record, the Court overrules Plaintiff’s objections and
adopts the Magistrate Judge’s R & R as the opinion of this Court.

Plaintiff first objects that the Magistrate Judge’s statement of the background legal
principles governing the assessment of a treating physician’s opinion, (see R & R at 1720), rests in part upon a Seventh Circuit ruling, Dixon v. Massanari, 270 F.3d 1171 (7th
Cir. 2001), that does not comport with the law of this Circuit. Yet, while the Magistrate
Judge cited Dixon for the proposition that a treating physician’s evaluation may be
unreliable due to bias in favor of a patient, (see R & R at 18 (citing Dixon, 270 F.3d at
1177)), nothing in the R & R’s ensuing analysis suggests that the Magistrate Judge
brought this principle to bear in determining whether the Administrative Law Judge
(“ALJ”) gave appropriate weight to the opinions of Plaintiff’s treating physicians. More
importantly, nothing in the record indicates that the ALJ relied on any such considerations
of favoritism or bias in determining the weight to be given to treating physician opinions,
so the Magistrate Judge’s citation to Dixon provides no basis for disturbing the ALJ’s
decision on this point.
Next, Plaintiff contends that the ALJ failed to give appropriate weight to the
opinion of a consultative psychological examiner, Dr. Nick Boneff, who assigned
Plaintiff a GAF score of 45 “based on [his] medical condition” and stated that “the
severity and chronicity of [Plaintiff’s] pain likely interferes with concentration and
attention at times such that he would have difficulty doing sustained work but would
probably be able to do part time simple routine task[s] not requiring any physical activity
or heavy labor.” (Admin. Record at 331.) As explained in the R & R, however, (see R &
R at 20-21), the ALJ determined that no weight should be given to Dr. Boneff’s “views
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on [Plaintiff’s] capacity to perform physical work-related activities,” where he had “no
professional background or qualifications to make such judgments” as to Plaintiff’s
physical impairments and resulting severity of pain, and where there was no indication in
the record that this opinion was based “upon a comprehensive physical examination of
[Plaintiff] or a review of [his] clinical evidence,” (ALJ Decision at 6 & n.1, Admin.
Record at 96). Likewise, Defendant points out that Plaintiff’s GAF score of 45 was
expressly “based on [Plaintiff’s] medical condition,” (Admin. Record at 331), which Dr.
Boneff lacked the qualifications to assess. To the extent that Plaintiff protests that the
Magistrate Judge “failed to note that Dr. Boneff is a specialist,” (Plaintiff’s Objections at
2), the R & R expressly states that Dr. Boneff has a Ph.D., (see R & R at 12), and the ALJ
likewise characterized the report of Dr. Boneff and his colleague, Julia Czarnecki, as
prepared by “a clinical psychologist” who conducted a “consultative psychiatric
examination” of Plaintiff, (ALJ Decision at 6, Admin. Record at 96).1 Accordingly, the
Court fully concurs in the Magistrate Judge’s finding that “the ALJ properly considered
and weighed the opinions of Dr. Boneff and Ms. Czarnecki.” (R & R at 21.)
Plaintiff next objects that the Magistrate Judge failed to sufficiently address the
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Plaintiff further suggests that the Magistrate Judge failed to recognize that Dr. Boneff, as
a purported “State Agency medical examiner[],” should be deemed a “highly qualified”
psychologist who is an “expert[] in the evaluation of medical issues in disability claims under the
Social Security Act.” (Plaintiff’s Objections at 2.) As Defendant points out, however, Plaintiff
evidently has confused state agency psychological consultants with consultative examiners. As
the latter, Dr. Boneff is an outside practitioner who performs examinations at the request of a
state agency, and he is not encompassed within the Social Security regulation providing that
state agency medical and psychological consultants are “highly qualified” medical specialists
“who are also experts in Social Security disability evaluation.” 20 C.F.R. § 404.1527(e)(2)(i).
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opinions of his “psychologist,” Patrick Cavell. Yet, as an initial matter, Defendant
correctly observes that Mr. Cavell is not a psychologist, but instead is a licensed
professional counselor. (See Admin. Record at 361.) Consequently, Mr. Cavell is not
deemed under the pertinent Social Security regulations to be an “acceptable medical
source” whose assessments of Plaintiff qualify as “medical opinions” that are entitled to
the protections of the treating-source rule. See 20 C.F.R. §§ 404.1527(a)(2), (c). In any
event, the Magistrate Judge recounted Plaintiff’s treatment history with Mr. Cavell, (see
R & R at 14-15), and also explained that Mr. Cavell’s findings, along with the remainder
of the record, provide substantial evidentiary support for the ALJ’s determination of
Plaintiff’s residual functional capacity (“RFC”), (see id. at 23-24). Moreover, the
underlying ALJ’s decision addressed Mr. Cavell’s opinion at length, explaining in
considerable detail why this opinion was given “scant weight” in determining Plaintiff’s
RFC. (See ALJ Decision at 10-12, Admin. Record at 100-02.) Against this backdrop, the
Court agrees with the Magistrate Judge that “the record as a whole provides substantial
evidence supporting the ALJ’s . . . RFC assessment limiting Plaintiff to simple, unskilled
work.” (R & R at 24.)
Next, Plaintiff complains that the Magistrate Judge was unduly “persuaded” by
the assessment of Plaintiff by psychiatric consultant Kathy A. Morrow, despite the fact
that Ms. Morrow’s qualifications purportedly are “unknown and not included in the
record,” and despite the fact that her assessment of Plaintiff conflicts to some extent with
those of Dr. Boneff and Mr. Cavell. (Plaintiff’s Objections at 4.) As Defendant explains
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in response, however, a code in the record reveals that Ms. Morrow is a psychologist, (see
Admin. Record at 334), and Defendant further observes that the Court may take judicial
notice of the State of Michigan licensing records showing that Dr. Morrow is a doctorallevel psychologist, (see Defendant’s Motion for Summary Judgment, Br. in Support at 8
& n.1 (citing to these state records)). In addition, the ALJ explained that Ms. Morrow’s
opinion was given “substantial weight” and was deemed “persuasive because her findings
are consistent with the totality of [Plaintiff’s] clinical evidence.” (ALJ Decision at 6,
Admin. Record at 96.) The Court is satisfied that this finding, like the ALJ’s other
determinations as to the weight to be given to the opinions of health care providers and
consultative examiners in this case, comports with the governing legal standards and
enjoys the support of substantial evidence in the record.
Finally, Plaintiff argues that the Magistrate Judge “ignored” a line of cases
supporting his “contention that the ALJ’s hypothetical question [to the vocational expert]
was incomplete and flawed.” (Plaintiff’s Objections at 4.) Yet, the Magistrate Judge
expressly acknowledged that the “case law resolves [this question] both ways,” and then
proceeded to determine that this case is more properly governed by the decisions finding
that a hypothetical question limiting a claimant to simple, unskilled work, without express
mention of moderate limitations in concentration, persistence or pace, can suffice to
accurately convey a claimant’s RFC. (R & R at 22-24 (internal quotation marks and
citation omitted).) Having independently reviewed this case law in light of the record
presented in this case, the Court fully concurs in the Magistrate Judge’s analysis and
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disposition of this issue.2
For these reasons,
NOW, THEREFORE, IT IS HEREBY ORDERED that Plaintiff’s July 3, 2013
objections to the Magistrate Judge’s June 24, 2013 Report and Recommendation are
OVERRULED. IT IS FURTHER ORDERED that the Magistrate Judge’s Report and
Recommendation (docket #42) is ADOPTED as the opinion of this Court, as
supplemented by the rulings in the present order. Finally, IT IS FURTHER ORDERED,
for the reasons set forth above and in the Magistrate Judge’s Report and

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Before leaving this matter, the Court wishes to express its appreciation to Plaintiff’s
present counsel, Kenneth F. Laritz, for agreeing to appear in this case and represent Plaintiff
after the Court found various deficiencies in the performance of Plaintiff’s initial counsel. As
always, Mr. Laritz has ably represented his client in this litigation.
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Recommendation, that Plaintiff’s January 18, 2013 motion for summary judgment (docket
#39) is DENIED, and that Defendant’s March 18, 2013 motion for summary judgment
(docket #41) is GRANTED.

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: November 20, 2013
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on November 20, 2013, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, [phone]

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