Kamphaus v. Colvin

Filing 20

ORDER Adopting 17 Report and Recommendation, Granting Defendant's 15 Motion for Summary Judgment, Denying Plaintiff's 13 Motion for Summary Judgment, Affirming the Findings of the Commissioner, and Dismissing Complaint. Motions terminated: 17 REPORT AND RECOMMENDATION, 15 MOTION for Summary Judgment, 13 MOTION for Summary Judgment. Signed by District Judge David M. Lawson. (SPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT L. KAMPHAUS,
Plaintiff,
v.

Case Number 14-12486
Honorable David M. Lawson
Magistrate Anthony P. Patti

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________/
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION, DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT, GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT, AFFIRMING THE FINDINGS OF THE
COMMISSIONER, AND DISMISSING COMPLAINT
Plaintiff Robert L. Kamphaus filed the present action on June 24, 2014 seeking review of
the Commissioner’s decision denying his claim for disability insurance benefits under Title II of the
Social Security Act. The case was referred to United States Magistrate Judge Anthony P. Patti under
28 U.S.C. § 636(b)(1)(B) and E.D. Mich. LR 72.1(b)(3). Thereafter, the plaintiff filed a motion for
summary judgement to reverse the decision of the Commissioner and remand the case for further
consideration by the administrative law judge. The defendant filed a motion for summary judgment
requesting affirmance of the decision of the Commissioner. Magistrate Judge Patti filed a report on
June 22, 2015 recommending that the defendant’s motion for summary judgment be granted, the
plaintiff’s motion for summary judgment be denied, and the decision of the Commissioner be
affirmed. The plaintiff filed timely objections to the recommendation and the defendant filed a
response to the objections. This matter is now before the Court.

The filing of timely objections to a report and recommendation requires the court to “make
a de novo determination of those portions of the report or specified findings or recommendations
to which objection is made.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667
(1980); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This de novo review requires the
court to re-examine all of the relevant evidence previously reviewed by the magistrate judge in order
to determine whether the recommendation should be accepted, rejected, or modified in whole or in
part. 28 U.S.C. § 636(b)(1).
“The filing of objections provides the district court with the opportunity to consider the
specific contentions of the parties and to correct any errors immediately,” Walters, 638 F.2d at 950,
enabling the court “to focus attention on those issues — factual and legal — that are at the heart of
the parties’ dispute,” Thomas v. Arn, 474 U.S. 140, 147 (1985). As a result, “‘[o]nly those specific
objections to the magistrate’s report made to the district court will be preserved for appellate review;
making some objections but failing to raise others will not preserve all the objections a party may
have.’” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (quoting Smith v.
Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987)).
The Court has reviewed the file, the report and recommendation, the plaintiff’s objections,
and the defendant’s response and has made a de novo review of the administrative record in light
of the parties’ submissions. Although the plaintiff raised several issues in his motion for summary
judgment, and the magistrate judge addressed them all, the only contested issue that remains before
the Court as framed by the objection to the report and recommendation is whether a report of a 2013
MRI study amounts to new and material evidence that would warrant an order to remand the case

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to the administrative law judge for further consideration of the plaintiff’s exertional capacity to
perform work.
The plaintiff, who is now 63 years old, filed his application for disability insurance benefits
on January 26, 2012, when he was 59. He completed high school and worked as a production
control scheduler until September 14, 2009. The plaintiff asserts that he stopped working due to
stress, memory lapses, and fatigue, which caused him to make frequent errors and often to be absent
from work at his last job. In the application that is the subject of the present appeal, the plaintiff
alleged a disability onset date of September 14, 2009. The plaintiff has been diagnosed with
affective disorder and sleep apnea. The plaintiff also claims that he has lower back and leg pain due
to a back injury suffered at his last job, but the Administrative Law Judge (ALJ) determined that the
record revealed no work related limitations due to back pain.
On January 26, 2012, the plaintiff filed his claim for disability benefits, alleging that he
became disabled on September 14, 2009. The plaintiff’s application was denied initially on June
11, 2012. The plaintiff timely filed a request for an administrative hearing, and on April 9, 2013,
the plaintiff, represented by counsel, appeared before ALJ Melvyn B. Kalt. On May 23, 2013, ALJ
Kalt issued a written decision in which he found the plaintiff not disabled. On April 22, 2014, the
Appeals Council denied the plaintiff’s request for review. The plaintiff filed his complaint seeking
judicial review on June 24, 2014.
ALJ Kalt reached the conclusion that the plaintiff was not disabled by applying the five-step
sequential analysis prescribed by the Secretary in 20 C.F.R. § 404.1520. He found that the plaintiff
had not engaged in substantial gainful activity since September 14, 2009 (step one); the plaintiff
suffered from affective disorder and sleep apnea, impairments which were “severe” within the

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meaning of the Social Security Act (step two); none of these impairments alone or in combination
met or equaled a listing in the regulations (step three); and the plaintiff could not perform his
previous work as a production control scheduler, which exceeded his current functional capacity
(step four). As noted earlier, the ALJ considered the plaintiff’s complaints of back pain in his Step-2
analysis, but concluded that although he showed evidence of degenerative disc disease, he did not
have a severe impairment.
In applying the fifth step, the ALJ concluded that the plaintiff had the residual functional
capacity to perform a full range of work at all exertional levels, with the nonexertional limitation
that he was “limited to simple, repetitive, routine tasks (unskilled).” A vocational expert testified
that the plaintiff could perform unskilled jobs such as “hand packager (there are 3,400 jobs in the
region and 10,000 statewide), packager/sealer (2,100 and 4,800), and order filler (2,800 and 6,000).”
Based on these findings and using Medical Vocational Rule 204.00 as a framework, the ALJ
concluded that the plaintiff was not disabled within the meaning of the Social Security Act.
Following the decision by the ALJ, the plaintiff appealed to the Appeals Council, which denied the
plaintiff’s request for review on April 22, 2014.
As noted earlier, the magistrate judge concluded that substantial evidence supported the
ALJ’s determination of the plaintiff’s capacity to work. Judge Patti also suggested that the plaintiff
did not offer a convincing argument that new evidence — the 2013 MRI report — justified
remanding the case for further administrative consideration under sentence six of 42 U.S.C. §
405(g).
The plaintiff raises a single objection to the magistrate judge’s report and recommendation.
He insists that remand is warranted because the 2013 MRI report is new and material evidence that

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supports the plaintiff’s claim that he has exertional limitations based on back pain, but that the ALJ
failed to consider any exertional limitations in making his residual functional capacity
determination. He notes that the MRI exam from June 13, 2013 was conducted after a referral from
the plaintiff’s doctor, Eric Neisch, M.D. And he believes that the test results would impact
significantly the ALJ’s determination that his back pain was not severe.
Section 405(g) provides the Court the authority to remand a case pursuant to either its
sentence four or sentence six. The court of appeals explained in Faucher v. Sec’y of Health &
Human Servs., 17 F.3d 171 (6th Cir. 1994), that these two provisions serve distinct purposes and set
forth different prerequisites for remand. Sentence six allows a remand for consideration of new
evidence, but the moving party must establish good cause for not submitting the evidence at the
hearing and show that the evidence is material, meaning that it is likely to change the ALJ’s
decision. Id. at 174; Sizemore v. Sec’y of Health & Human Servs., 865 F.2d 709, 711 (6th Cir.
1988). A post-judgment remand for further proceedings is authorized under sentence four of Section
405(g) for further consideration of evidence in the record, see Melkonyan v. Sullivan, 501 U.S. 89,
97-98 (1991), but the moving party must show “that substantial evidence does not support the
Secretary’s decision.” Faucher, 17 F.3d at 176. The plaintiff does not contend that remand is
appropriate under sentence four.
The magistrate judge agreed that the report was “new” because it was not created until after
the administrative hearing. Neither side disputes that finding.
The plaintiff maintains that the report is “material” because it provided objective medical
evidence of more severe spinal abnormalities than were revealed in the only MRI evidence that the
ALJ considered, which was from a scan taken in 2003. The plaintiff also argues that the magistrate

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judge erred in determining that the evidence was not indicative of his condition before the hearing,
because the 2013 MRI scan was taken just three weeks after the hearing, and it is implausible that
the plaintiff’s spinal condition degraded as much as the scan suggests in just three weeks. The
defendant responds that the plaintiff has failed to show that the evidence is material, because the
MRI scan is not accompanied by any interpretation by a medical source, and it does not, on its own,
objectively contradict the other medical record evidence showing no significant degradation in the
plaintiff’s functional capacity between the earlier 2003 scan — which was considered by the ALJ
— and the 2013 scan, including from 2010 to 2013 when he was treated for back pain.
It is not readily apparent that the differences in the 2003 and 2013 MRI reports are medically
significant. In fact, there are more similarities than differences in the listed findings on both reports.
It is well known that degenerative disc disease is a progressive ailment, but it is difficult to conclude
that the 2013 report is anything but evidence of the continued existence of that condition. But the
Court need not — in fact, ought not — attempt to interpret the report or make conclusions of
medical significance. It is the plaintiff who bears the burden of showing the significance of the
“new” report. Where new evidence is presented after the administrative hearing is closed, the “court
can remand for further consideration of the evidence only where the party seeking remand shows
that the new evidence is material.” Wyatt v. Secretary of Health and Human Services, 974 F.2d 680,
685 (6th Cir. 1992) (emphasis added). “In order for the claimant to satisfy [her] burden of proof as
to materiality, [s]he must demonstrate that there was a reasonable probability that the Secretary
would have reached a different disposition of the disability claim if presented with the new
evidence.” Sizemore v. Secretary of Health and Human Services, 865 F.2d 709, 711 (6th Cir. 1988)
(citing Carroll v. Califano, 619 F.2d 1157, 1162 (6th Cir.1980)).

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The magistrate judge concluded that the plaintiff did not satisfy his burden, and the Court
agrees with the magistrate judge’s reasoning and conclusion.
The plaintiff argues that he has shown good cause for failing to present the 2013 MRI results
before the ALJ issued his decision, because Dr. Neisch did not refer the plaintiff for an MRI scan
before the hearing, and the evidence therefore did not exist at a time when the plaintiff could have
presented it. The defendant counters that the plaintiff has not offered any good reason to explain
why he could not procure the new MRI evidence before the hearing, and the fact that Dr. Neisch saw
no need for an MRI referral suggests that there were no indications of a need for such an exam,
because the plaintiff’s condition was not severe or worsening. Once again, the Court believes that
the defendant has the better argument. The plaintiff suggests that a referral was necessary to obtain
the imaging study and qualify for insurance coverage. No doubt that is true. But the plaintiff has
not explained why the referral was even necessary until after the administrative hearing. If the
timing suggests that the report is “new,” then perhaps the symptoms or complaints that provoked
the referral are as well.
Finally, the plaintiff contends that the magistrate judge erred in concluding that the 2013
MRI evidence was cumulative of other evidence, because it provided objective verification for Dr.
Neisch’s opinion that the plaintiff was limited to light work only, which the ALJ discounted after
finding that the limitations noted by Dr. Neisch were unsupported by any objective medical evidence
or treatment records. The plaintiff argues that the magistrate judge erred in finding that the ALJ’s
determination that the plaintiff’s back pain was non-severe was supported by other evidence in the
record, such as the minimal treatment that was given for the pain and the plaintiff’s ability to ride
a motorcycle, mow his lawn with a riding lawnmower, drive, and go shopping. The plaintiff

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contends that all of those activities are “not inconsistent” with a limitation to light work only, but
that the ALJ nonetheless concluded that the plaintiff could work at any exertional level. The
defendant responds that the plaintiff waived the right to pursue this objection, by failing to present
it in his opening brief in support of his motion for summary judgment.
It is true that courts generally will not consider arguments on review that were not raised
before the magistrate judge. As the Sixth Circuit has explained in a similar circumstance:
Petitioner did not raise this [new] claim in his initial . . . motion. Rather, it was first
raised in his supplemental objections to the magistrate judge’s final Report and
Recommendation. The magistrate thus never had the opportunity to consider this
issue. Courts have held that while the Magistrate Judge Act, 28 U.S.C. § 631 et seq.,
permits de novo review by the district court if timely objections are filed, absent
compelling reasons, it does not allow parties to raise at the district court stage new
arguments or issues that were not presented to the magistrate. See United States v.
Waters, 158 F.3d 933, 936 (6th Cir. 1998) (citing Marshall v. Chater, 75 F.3d 1421,
1426-27 (10th Cir. 1996) (“issues raised for the first time in objections to magistrate
judge’s report and recommendation are deemed waived”)); see also Cupit v. Whitley,
28 F.3d 532, 535 (5th Cir. 1994); Paterson-Leitch Co., Inc. v. Massachusetts Mun.
Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988); Anna Ready Mix, Inc. v.
N.E. Pierson Constr. Co., Inc., 747 F. Supp. 1299, 1302-03 (S.D. Ill. 1990). Hence,
Petitioner’s failure to raise this claim before the magistrate constitutes waiver.
Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000); see also Greenhow v. Sec’y of Health
& Human Servs., 863 F.2d 633, 638-39 (9th Cir. 1988) (stating that the Magistrate Judges Act was
not intended “to give litigants an opportunity to run one version of their case past the magistrate,
then another past the district court”), rev’d on other grounds, United States v. Hardesty, 977 F.2d
1347 (9th Cir. 1992) (en banc); Jesselson v. Outlet Assocs. of Williamsburg, Ltd. P’ship, 784 F.
Supp. 1223, 1228 (E.D. Va. 1991) (“A magistrate’s decision should not be disturbed on the basis
of arguments not presented to him.”).
But even if the argument were not waived, the plaintiff has not offered any evidence of the
medical significance of the 2013 MRI report or an explanation of how it shows something more than
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the 2003 report. The magistrate judge’s suggestion that the 2013 report is cumulative is reasonable
in light of that failure of proof.
After a de novo review of the entire record and the materials submitted by the parties, the
Court concludes that the magistrate judge properly reviewed the administrative record and applied
the correct law in reaching his conclusion. The Court has considered all of the plaintiff’s objections
to the report and finds them to lack merit.
Accordingly, it is ORDERED that the magistrate judge’s report and recommendation [dkt.
#17] is ADOPTED.
It is further ORDERED that the plaintiff’s objections [dkt. #18] are OVERRULED.
It is further ORDERED that the plaintiff’s motion for summary judgment [dkt. #13] is
DENIED.
It is further ORDERED that the defendant’s motion for summary judgment [dkt #15] is
GRANTED. The findings of the Commissioner are AFFIRMED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: September 30, 2015
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on September 30, 2015.
s/Susan Pinkowski
SUSAN PINKOWSKI

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