Nealy v. Social Security, Commissioner of

Filing 20

ORDER denying 12 Motion for Summary Judgment; granting 15 Motion for Summary Judgment; adopting 16 Report and Recommendation and overruling 17 Objection. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
VANESSA K NEALY,
Case No. 13-10684
Plaintiff,
SENIOR UNITED STATES DISTRICT JUDGE
ARTHUR J. TARNOW

v.

MAGISTRATE JUDGE MARK A. RANDON
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
/

ORDER ADOPTING REPORT AND RECOMMENDATION [16];
OVERRULING PLAINTIFF’S OBJECTION [17]; GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [15]; AND
DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [12]
On January 22, 2014, Magistrate Judge Randon issued a Report and
Recommendation (“R&R”) [16] recommending that Defendant’s Motion for Summary
Judgment [15] be granted and that Plaintiff’s Motion for Summary Judgment [12] be
denied. Plaintiff filed an Objection [17] on February 5, 2014.
For the reasons stated below, the Report and Recommendation is ADOPTED
and is entered as the findings and conclusions of the Court. Defendant’s Motion for
Summary Judgment is GRANTED. Plaintiff’s Motion for Summary Judgment is
DENIED.

I. Factual Background
The R&R contains a detailed explanation of the factual background of this case,
and the Court adopts the factual background as set out in the R&R in full.
II. Standard of Review
This Court reviews objections to an R&R on a dispositive motion de novo. See
28 U.S.C. §636(b)(1)(c). Making some objections to an R&R, but failing to raise
others, will not preserve all objections a party may have to the report and
recommendation. McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 837 (6th Cir.
2006). Objections that are filed must be specific. Frontier Ins. Co. v. Blaty, 454 F.3d
590, 596 (6th Cir. 2006).
In reviewing an Administrative Law Judge’s (“ALJ”) decisions, 42 U.S.C. §
405(g) provides that the ALJ’s “factual findings are conclusive if supported by
substantial evidence.” Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 243
(6th Cir. 1987). “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 v. Comm’r of Soc. Sec., 486 F.3d
234, 241 (6th Cir. 2007) (citing Cutlip v. Sec’y of Health & Human Servs., 25 F.3d
284, 286 (6th Cir. 1994)) (internal quotation marks omitted); See also Richardson v.

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Perales, 402 U.S. 389, 401 (1971). In order to determine “whether the Secretary's
factual findings are supported by substantial evidence, we must examine the evidence
in the record taken as a whole and must take into account whatever in the record fairly
detracts from its weight.” Wyatt v. Sec’y of Health & Human Servs., 974 F.2d 680,
683 (6th Cir. 1992) (internal citations omitted). So long as the conclusion is supported
by substantial evidence, “this Court will defer to that finding even if there is
substantial evidence in the record that would have supported an opposite conclusion.”
Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005); see also Mullen
v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986). Finally, an ALJ's findings based on the
credibility of the applicant are to be accorded great weight and deference. Villarreal
v. Secretary of Health and Human Servs., 818 F.2d 461, 463 (6th Cir.1987).
III. Analysis
Plaintiff raises one objection to the R&R: that the Magistrate Judge erred in
finding that a treating doctor’s opinions as to a claimant’s residual functional capacity
(“RFC”) “are not entitled to any particular weight.” [16] at 9. Plaintiff cites recent
Sixth Circuit precedent which clarified that the treating-physician rule applies to the
RFC of the claimant. Gentry v. Commissioner of Social Sec., 741 F.3D 708, 727 (6th
Cir. 2014). Although the ultimate determination of disability is an administrative one
and reserved for the Commissioner, “an ALJ may only choose not to give a treating

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physician’s opinion controlling weight if she gives ‘good reasons. . . . for the weight
given.’” Id. (internal citations omitted).
The Court need not decide whether Plaintiff’s objection that the R&R
mischaracterizes the applicable law is correct. This is because Plaintiff’s argument
ultimately fails because the ALJ gave good reasons for not giving the treating
physician’s opinion controlling weight.
As stated in the R&R, the ALJ did not give Dr. Pierre’s opinions regarding
Plaintiff’s RFC controlling weight, because Dr. Pierre’s opinions were based upon
Plaintiff’s subjective complaints. As described in the R&R, the ALJ gave good
reasons for not giving Dr. Pierre’s opinion controlling weight. Dr. Pierre’s opinions
regarding Plaintiff’s RFC were based on Plaintiff’s own report that she could not walk
very far without running out of breath. When a plaintiff attempts to establish
disability based on subjective complaints, she must provide objective medical
evidence of an underlying medical condition that either confirms the severity of the
alleged symptoms or indicates the condition reasonably could be expected to cause
symptoms as severe as alleged. Duncan v. Sec’y of Health and Human Servs., 801
F.2d 847, 853 (6th Cir. 1986). As stated and more fully explained in the R&R, “the
evidence reveals that Plaintiff’s asthma was mild and under control” [16] at 7–8.
For the reasons stated above, Plaintiff’s objection is not persuasive.
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IV. Conclusion
The Court having reviewed the record in this case, the Report and
Recommendation [16] of the Magistrate Judge is hereby ADOPTED and is entered
as the findings and conclusions of the Court. Defendant’s Motion for Summary
Judgment [15] is GRANTED. Plaintiff’s Objection [17] is OVERRULED and her
Motion for Summary Judgment [12] is DENIED.
SO ORDERED.

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: March 7, 2014

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