Schacht v. Colvin

Filing 31

OPINION AND ORDER Adopting 24 Report and Recommendation Denying 20 Motion for Summary Judgment filed by Carolyn W Colvin, Granting 21 Motion for Summary Judgment filed by David L. Schacht. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID L. SCHACHT,
Case No. 15-10251
Plaintiff,
Paul D. Borman
United States District Judge
v.
Elizabeth A. Stafford
United States Magistrate Judge
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
______________________________/
OPINION AND ORDER
(1) DENYING PLAINTIFF’S OBJECTIONS (ECF NO. 28);
(2) ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION (ECF NO. 24);
(3) DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 21);
(4) GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 20);
AND (5) DISMISSING THE CASE
On May 5, 2016, Magistrate Judge Elizabeth A. Stafford issued a Report and
Recommendation addressing the outstanding motions in this action. (ECF No. 24). In the
Report and Recommendation, the Magistrate Judge suggests that this Court deny Plaintiff David
L. Schacht’s Motion for Summary Judgment (ECF No. 21). Further, the Magistrate Judge
recommends that this Court grant Defendant Commissioner of Social Security’s Motion for
Summary Judgment (ECF No. 20).
Now before the Court is Plaintiff’s Objections to the Magistrate Judge’s Report and
Recommendation. (ECF No. 28, Objections.) Defendant filed a timely reply. (ECF No. 30.)
Having conducted a de novo review of the parts of the Magistrate Judge’s Report and
Recommendation to which objections have been filed pursuant to 28 U.S.C. § 636(b)(1), the

Court will deny Plaintiff’s Objections, adopt the Magistrate Judge’s Report and
Recommendation, deny Plaintiff’s motion for summary judgment, and grant the Defendant’s
motion for summary judgment.
I. BACKGROUND
The Court notes that the Administrative Law Judge’s (“ALJ”) findings and the pertinent
portions of the Administrative Record are accurately and adequately set forth in the ALJ’s
decision and the Plaintiff’s motion for summary judgment. The Court finds that there are no
material inconsistencies with these accounts and the Court incorporates those factual recitations
here. (ECF No. 21, at 2-11; Tr. 13-22.)
Briefly, in February 2010, Plaintiff filed his first application for disability insurance
benefits and alleged a disability onset date on August 27, 2009. (Tr. 95.) On August 19, 2011,
after an administrative hearing, ALJ Raymond L. Souza found that Plaintiff suffered from the
severe impairments of “glossopharyngeal neuralgia; disorder of the neck and back; migraine
headaches; and, depression.” (Tr. 97.) ALJ Souza concluded that Plaintiff was not disabled
within the meaning of the Social Security Act and had the residual functional capacity (“RFC”)
to perform light work ... except the claimant must avoid all exposure to hazardous
machinery and unprotected heights. The claimant is limited to simple, routine,
and repetitive tasks in a low stress work environment with only occasional
decision making required and only occasionally changes in the work setting but
no strict production quotas.
(Tr. 99.) On November 1, 2011, the Appeals Council denied review, making ALJ Souza’s
decision the final decision of the Commissioner. (Tr. 106-11.) Plaintiff did not appeal that
decision.

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Thereafter, on April 9, 2012, Plaintiff applied for disability insurance benefits a second
time and alleged a disability onset date of January 26, 2012.1 (Tr. 20, 31, 182-83.) His
application was denied and he then requested a hearing before an ALJ. (Tr. 141-47.) Plaintiff,
represented by counsel, appeared and testified before ALJ Michael R. Dunn on August 4, 2013.
(Tr. 26-55.)
On September 25, 2013, ALJ Dunn issued his decision and concluded that Plaintiff
suffered from the severe impairments of “glossopharyngeal neuralgia, a chronic pain syndrome,
depression, and anxiety.” (Tr. 16.) ALJ Dunn determined that Plaintiff’s
impairments and symptoms have been essentially the same since the new
amended onset date of January 26, 2012. Because there is really no new and
material evidence since the last decision was made [], the case of Drummond v.
Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997) is applicable in
this case. I am finding that the claimant has essentially the same residual
functional capacity as determined by Judge Souza.
(Tr. 18.) ALJ Dunn then held that Plaintiff had the RFC
to preform light work ... except that he is restricted to simple, repetitive unskilled
work which would be at “SVP” level one or two as defined in the Dictionary of
Occupational Titles, and which would not have fast-paced production
requirements or few if any workplace changes, and only simple work-related
decisions, and he cannot be exposed to unprotected heights or hazardous
machinery.
(Tr. 17-18.) ALJ Dunn then concluded that Plaintiff was not disabled within the meaning of the
Social Security Act. (Tr. 13-22.)
The Appeals Council denied request for review on November 19, 2014, making ALJ
Dunn’s decision the final decision of the Commissioner. Thereafter, Plaintiff filed his appeal in

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Plaintiff originally alleged an onset date of August 16, 2012 but amended this alleged
disability onset date to January 26, 2012 at the hearing. (Tr. 13.)
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this Court. (ECF No. 1.)
II. STANDARD OF REVIEW
Where a party has objected to portions of a Magistrate Judge’s Report and
Recommendation, the Court conducts a de novo review of those portions. FED. R. CIV. P. 72(b);
Lyons v. Comm’r of Soc. Sec., 351 F. Supp. 2d 659, 661 (E.D. Mich. 2004). In reviewing the
findings of the ALJ, the Court is limited to determining whether those findings are supported by
substantial evidence and made pursuant to proper legal standards. See Rogers v. Comm’r of Soc.
Sec., 486 F.3d 234, 241 (6th Cir. 2007) (citing 42 U.S.C. § 405(h)); see also Cutlip v. Sec’t of
Health and Human Servs., 25 F.3d 284, 286 (1994) (“Judicial review of the Secretary’s decisions
is limited to determining whether the Secretary’s findings are supported by substantial evidence
and whether the Secretary employed the proper legal standards.”).
Substantial evidence is “‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Kyle v. Comm’r of Soc. Sec., 609 F.3d 847, 854 (6th Cir.
2010) (quoting Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601, 604 (6th Cir. 2009)); see also
McGlothin v. Comm’r of Soc. Sec., 299 F. App’x 516, 522 (6th Cir. 2008) (recognizing that
substantial evidence is “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.”)
(internal quotations omitted). “If the Commissioner’s decision is supported by substantial
evidence, we must defer to that decision, ‘even if there is substantial evidence in the record that
would have supported an opposite conclusion.’” Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir.
2007) (quoting Longworth v. Comm’r of Soc. Sec. Admin., 402 F.3d 591, 595 (6th Cir. 2005)).

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As to the second inquiry – whether proper legal criteria were followed – a decision of the
Commission supported by substantial evidence 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.” Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir.
2007) (citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-47 (6th Cir. 2004)).
This Court does not “try the case de novo, nor resolve conflicts in the evidence, nor
decide questions of credibility.” Cutlip, 25 F.3d at 286. Indeed, “[i]t is of course for the ALJ,
and not the reviewing court, to evaluate the credibility of witnesses, including that of the
claimant.” Rogers, 486 F.3d at 247; see Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 542 (6th
Cir. 2007) (providing that the “ALJ’s credibility determinations about the claimant are to be
given great weight, ‘particularly since the ALJ is charged with observing the claimant’s
demeanor and credibility.”) (citation omitted)).
Finally, the Court notes that a general objection that merely rehashes the argument
previously made by the party is insufficient to alert this Court to any alleged error. Moreover, a
party’s objection that does nothing more than disagree with the Magistrate Judge’s
recommendation is not a proper objection. See Howard v. Sec’y of Health and Hum. Servs., 932
F.2d 505, 508 (6th Cir. 1991); Slater v. Potter, 29 F. App’x 512, 513 (6th Cir. 2002) (“the filing
of vague, general or conclusory objections does not meet the requirement of specific objections
and its tantamount to a complete failure to object.”).
III. ANALYSIS
Plaintiff identifies one general objection to the Magistrate Judge’s Report and
Recommendation regarding the Magistrate Judge’s ultimate conclusion that there was substantial

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evidence to support ALJ Dunn’s decision to adopt the RFC from the earlier ruling. Plaintiff’s
single general objection is more accurately construed as three specific objections to the Report
and Recommendation: (1) that the Magistrate Judge erred in failing to recognize that the ALJ’s
designation of Plaintiff’s anxiety as a severe impairment constituted evidence of “changed
circumstances”; (2) the Magistrate Judge erred when she required Plaintiff to show “material
change” in his condition rather than merely “changed circumstances” as required in Drummond
v. Comm’r of Soc. Sec., 126 F.3d 837 (1997); and (3) that the Magistrate Judge erred in
concluding the ALJ provided “good reasons” for discounting Dr. Veena Dua’s July 30, 2013
Opinion Letter that stated Plaintiff’s mental health had declined and his depression had increased
in 2012 and 2013. The Court addresses each of these objections below.
A.

Anxiety as a Severe Impairment

Plaintiff first argues that ALJ Dunn’s designation of “anxiety” as a severe impairment,
which ALJ Souza did not recognize as a severe impairment in the earlier ruling, is a tacit
acknowledgment that his overall condition had deteriorated since the first adjudication. As an
initial matter, the Court recognizes that Plaintiff did not raise this argument to the Magistrate
Judge in the first instance, and ordinarily when a party fails to make an argument to the
Magistrate Judge that argument is waived. Murr v. United States, 200 F.3d 895, 902 n .1 (6th
Cir. 2000); see also Heston v. Comm’r of Soc. Sec., 245 F.3d 528 (6th Cir. 2001). Regardless,
however, the Court finds Plaintiff’s claim of error is unpersuasive, as examined below.
As explained in Drummond, a subsequent ALJ is bound by an earlier ALJ’s ruling
regarding a claimant’s RFC “absent changed circumstances.” 126 F.3d at 842; see also AR 984(6) (SSA), 1998 WL 283902, * 3 (1998) (advising that adjudicators must adopt a finding of a

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claimant’s residual functional capacity “from the final decision by an ALJ or the Appeals
Council on the prior claim in determining whether the claimant is disabled with respect to the
unadjudicated period unless there is new and material evidence relating to such a findings ....”).
Plaintiff relies upon the district court decision of Salsgiver v. Comm’r of Soc. Sec., No. 1:11-CV351, 2012 WL 2344095 (N.D. Ohio June 20, 2012) to support his argument that ALJ’s
designation of “anxiety” as a new “severe impairment,” is evidence of changed circumstances
under Drummond. (Obj., at 14.) In Salsgiver, the District Court noted that a second ALJ had
designated four other conditions as “severe impairments” that were not identified in an earlier
ruling denying benefits and explained that “[w]hile the Court acknowledges that an ALJ’s
determination at step two of the disability evaluation process is judged under a de minimis
standard, the ALJ’s recognition of these additional severe impairments suggests that Plaintiff’s
overall condition had further deteriorated to some degree since the prior ALJ’s ruling.”
Salsgiver v. Comm’r of Soc. Sec., No. 1:11-CV-351, 2012 WL 2344095, at * 13.
Salsgiver, however, is distinguishable from the present case. In Salsgiver, the District
Court found the ALJ erred when he failed to offer “some explanation” as to why Plaintiff’s
condition remained unchanged during the intervening time period between the first disability
ruling and the second. Id. (“Without such an explanation, the Court is unable to discern why the
ALJ rejected the evidence [of changed circumstances] presented by Plaintiff.”). Yet, in the
present action, the ALJ addressed the evidence Plaintiff alleged supported his worsened
condition and the ALJ found it unavailing. Indeed, Plaintiff’s argument in the present case is
that ALJ Dunn erroneously rejected Plaintiff’s evidence of changed circumstances, not that ALJ
Dunn failed to sufficiently address that evidence in the first place. As the Defendant correctly

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noted, “[a] claimant’s severe impairment may or may not affect his or her functional capacity to
work. One does not necessarily establish the other.” Yang v. Comm’r of Soc. Sec., No. 0010446-BC, 2004 WL 1765480, at * 5 (E.D. Mich., July 14, 2004) (examining the issue and
noting that “the application of the requirement to establish ‘severity’ is quite ‘lenient,’ and
generally it is ‘employed as an administrative convenience to screen out claims that are ‘totally
groundless solely from a medical standpoint.’” (quoting Higgs v. Bowen, 880 F.2d 860, 862-63
(6th Cir. 1988)). Thus, Salsgiver is unpersuasive and Plaintiff’s objection is denied.
B.

Incorrect Legal Standard

Plaintiff next objects to the Magistrate Judge’s Report and Recommendation on the basis
that she applied the wrong legal standard in connection with determining whether ALJ Dunn was
bound by ALJ’s Souza’s earlier RFC under Drummond v. Comm’r of Soc. Sec., 126 F.3d 837
(1997). Plaintiff contends that the Magistrate Judge erroneously required that Plaintiff show a
“material change” in his condition rather than just “changed circumstances” as provided in
Drummond.
The Court has reviewed the Report and Recommendation and finds that the Magistrate
Judge did not apply an incorrect legal standard. The Sixth Circuit has explained that reading
Drummond and the subsequent Acquiescence Ruling 98-4(6) together, it is clearly established
that “a subsequent ALJ is bound by the legal and factual findings of a prior ALJ unless the
claimant presents new and material evidence that there has been either a change in the law or a
change in the claimant’s condition.” Blankenship v. Comm’r of Soc. Sec., 624 F. App’x 419, 425
(6th Cir. 2015). Here, the Magistrate Judge recited the proper standard described in Drummond
and AR 98-4(6) and her analysis was consistent with that authority. (See ECF No. 24, at 10, i.e.,

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concluding that “[t]he diagnosis of these three conditions do not constitute new and material
evidence.”) The Magistrate Judge’s use of the term “material change” a single time in the
Report and Recommendation does not, by itself, evidence that Plaintiff was subject to a higher
burden or standard. See also Blankenship, 624 F. App’x at 426-27 (rejecting the claim that an
ALJ erred in when he failed to consider new evidence of a worsening condition under
Drummond and explaining, “Blankenship has failed to show how these five additional surgeries
resulted in a qualitative, material change to her condition. Absent such a showing, ALJ Dowd
did not err in finding that these five additional surgeries tend to suggest that Blankenship’s
chronic foot problems, and treatment of those problems, continued to occur in the same pattern.”
(emphasis added). Accordingly, Plaintiff’s objection in denied.
C.

Good Reasons

Finally, Plaintiff objects to the Magistrate Judge’s finding that ALJ Dunn provided “good
reasons” for giving less than controlling weight to Dr. Dua’s July 2013 Opinion Letter. The
Court notes that Plaintiff does not pinpoint an error with the Magistrate Judge’s analysis in this
regard, but rather objects generally to the Magistrate Judge’s conclusion and rehashes the exact
arguments he earlier asserted. Such an objection is improper. See Howard v. Sec’y of Health
and Hum. Servs., 932 F.2d 505, 508 (6th Cir. 1991). Regardless, the Court finds that Plaintiff’s
objection is without merit.
As correctly noted by the Magistrate Judge, the “treating physician rule” requires that an
ALJ give “controlling weight to a treating physician’s opinion as to the nature and severity of the
claimant’s condition as long as it ‘is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in

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[the] case record.” Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 723 (6th Cir. 2014) (citation
omitted). Where an ALJ gives less than controlling weight to a treating physician’s opinion,
then the ALJ must provide “good reasons” for that decision, and such reasons 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.” Gayheart v. Comm’r of
Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (citing SSR 96-2p, 1996 WL 374188, at * 5 (1996));
see 20 C.F.R. § 404.1527(d)(2).
Here, Plaintiff argues that the Magistrate Judge erred in concluding that ALJ Dunn
properly gave less than controlling weight to Dr. Dua’s July 2013 Opinion Letter. (Obj., at 18.)
More specifically, the Magistrate Judge and ALJ Dunn found that Dr. Dua’s conclusion that
Plaintiff’s mental health had declined and his depression had increased in 2012 and 2013 was
inconsistent with her own contemporaneous progress notes; each of these medical notes stated
that Plaintiff’s “mood has been good and overall doing well.” (See October 2, 2012
Appointment (Tr. 299); January 24, 2013 Appointment (Tr. 301); and June 27, 2013
Appointment (Tr. 307)). Plaintiff claims that these notations do not exist in the record. Despite
Plaintiff’s claims to the contrary, however, these notes are in the record under the headings
“Review of Systems” or “ROS,” and are accurately quoted by both ALJ Dunn and the Magistrate
Judge. Moreover, the Court agrees with the Magistrate Judge’s conclusion that ALJ Dunn set
forth good reasons for giving less than controlling weight to Dr. Dua’s July 2013 opinion,
including the internal inconsistency that Dr. Dua found Plaintiff was in “good mood” and
“overall doing well” in each of her appointments with him immediately prior to concluding on
July 30, 2013 that Plaintiff’s mental health had declined. (See Tr. 19-20.)

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Plaintiff also appears to argue that ALJ Dunn improperly discounted her July 30, 2013
Opinion Letter because she was not a specialist and failed to note Dr. Dua’s long time treatment
of Plaintiff. (Obj., at 15.) However, the length of a treatment relationship is not dispositive
under the “treating physician’s rule,” but is just one factor to consider. See Gentry, 741 F.3d at
723 (noting that the ALJ must consider certain factors “including the length, frequency, nature,
and extent of the treatment relationship; the supportability of the physician’s conclusions; the
specialization of the physician; and any other relevant factors.” (citation omitted)). Here, ALJ
Dunn noted one of the reasons he found Dr. Dua’s opinion not controlling on the issue of
Plaintiff’s disability was that Dr. Dua’s opinion regarding Plaintiff’s mental status was
contradicted Dr. Hugh Bray, a psychologist who was “more qualified to express an opinion on
the claimant’s mental health.” (Tr. 20.) ALJ Dunn found that Dr. Bray’s opinion, that Plaintiff
was “only mildly impaired in the ability to maintain concentration, persistence, or pace” and
assessed Plaintiff with a global assessment functioning level of 65 was “consistent with only
mild symptoms and limitations,” constituted medical evidence that contradicted Dr. Dua’s July
30, 2013 opinion of disability and declining mental health. (Id.)
The Court agrees with the Magistrate Judge’s conclusion that ALJ Dunn did not err in
this regard because under the regulations ALJs “generally give more weight to the opinion of a
specialist about medical issues related to his or her area of specialty than to the opinion source
who is not a specialist.” (ECF No. 24, at 14, quoting 20 C.F.R. § 404.1527(c)(5)). Thus, while
Dr. Dua did have a long treatment history with Plaintiff; ALJ Dunn found her opinion was not
controlling because it was not supported by her own contemporaneous notes or other medical
evidence, and because that opinion was contradicted by the opinion of a mental health specialist.

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These factors constitute “good reasons” for discounting Dr. Dua’s conclusion that Plaintiff was
disabled or that his condition had worsened. Thus, Plaintiff’s objection is denied.
IV. CONCLUSION
For all these reasons, the Court DENIES Plaintiff’s Objections (ECF No. 28), ADOPTS
the Magistrate Judge’s Report and Recommendation (ECF No. 24), DENIES Plaintiff’s Motion
for Summary Judgement (ECF No. 21), GRANTS Defendant Commissioner’s Motion for
Summary Judgment (ECF No. 20) and DISMISSES this action with prejudice.
IT IS SO ORDERED.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: September 22, 2016
CERTIFICATE 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 22, 2016.

s/Deborah Tofil
Case Manager

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