Pastorino v. Social Security, Commissioner of

Filing 27

ORDER signed by District Judge Denise Page Hood Adopting 22 Report and Recommendation and Dismissing Case. (Grimes, K.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOSEPH PAUL PASTORINO,
Plaintiff,
v.

Case No. 15-10918
Hon. Denise Page Hood

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
/
ORDER ACCEPTING REPORT AND RECOMMENDATION
AND DISMISSING ACTION
This matter is before the Court on Magistrate Judge R. Steven Whalen’s
Report and Recommendation. [Doc. No. 22, filed January 31, 2016] Timely
objections and a response to the objections were filed in this matter. [Doc. Nos. 25
and 26]
Judicial review of the Commissioner’s decision is limited in scope to
determining whether the Commissioner employed the proper legal criteria in
reaching his conclusion. Garner v. Heckler, 745 F.2d 383 (6th Cir. 1984). The
credibility findings of an administrative law judge (“ALJ”) must not be discarded
lightly and should be accorded great deference. Hardaway v. Secretary of Health
and Human Services, 823 F.2d 922, 928 (6th Cir. 1987). A district court’s review

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of an ALJ’s decision is not a de novo review. The district court may not resolve
conflicts in the evidence nor decide questions of credibility. Garner, 745 F.2d at
397. The decision of the Commissioner must be upheld if it is supported by
substantial evidence, even if the record might support a contrary decision or if the
district court arrives at a different conclusion. Smith v. Secretary of HHS, 893 F.2d
106, 108 (6th Cir. 1984); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986).
The Court has had an opportunity to review this matter and finds that the
Magistrate Judge reached the correct conclusions for the proper reasons. Plaintiff
objects to the Magistrate Judge’s: (a) findings that a June 28, 2013, MRI showed
the absence of lumbar nerve root impingement and was essentially normal, (b)
conclusion that Plaintiff’s back pain generally was “OK or fine” and that radiating
pain was absent, (c) failure to give Nurse Practitioner Lisa “Lindsay’s restrictions
great weight pursuant to 20 C.F.R. 416.927(d) [sic] and Social Security Ruling 0603p *2, 2006 WL 2329939 (August 9, 2006),” and (d) erroneous belief that the
findings of Dr. Sayyid did not support the restrictions dictated by Nurse
Practitioner Lindsay. The Court first notes that Plaintiff’s objections are essentially
reiterations of his arguments presented in his summary judgment brief, an
approach that is not appropriate or sufficient. See, e.g., O’Connell v. Comm’r of
Soc. Sec., 2016 WL 537771, at *1 (E.D. Mich. Feb. 11, 2016) (citing Betancourt v.

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Ace Ins. Co. of Puerto Rico, 313 F.Supp.2d 32, 34 (D.P.R. 2004)). Second,
contrary to Plaintiff’s contentions, the ALJ correctly concluded that Nurse
Practitioner Lindsay is not an “acceptable medical source” under Social Security
law, the “treating physician rule” does not apply to her, her opinions do not carry
presumptive weight, and the ALJ did not have to explain why he discounted her
opinions. See, e.g., Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 875-76 (6th Cir.
2007) (“Before determining whether the ALJ violated [the reason-giving
requirement set forth in] Wilson [v. Comm’r Soc. Sec., 378 F.3d 541 (6th Cir.
2004)] by failing to properly consider a medical source, we must first classify that
source as a “treating source.”). See also 20 C.F.R. 416.902 (only “acceptable
medical sources” can be “treating sources” for purposes of Social Security law); 20
C.F.R. 416.913(a) (nurse practitioner not among listed “acceptable medical
sources”).
Third, as it relates to Plaintiff’s objections in parts (b)-(d), the Court finds
that there was substantial evidence in the record to support the conclusions reached
by the ALJ with respect to each of those issues, including the weight he gave to the
opinions and conclusions of Nurse Practitioner Lindsay and Dr. Sayyid.
Specifically, the Court finds that substantial evidence supports the ALJ’s finding
that Nurse Practitioner Lindsay’s opinion that Plaintiff was disabled was not

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consistent with the overall medical record and many of her own treatment notes.
Fourth, even if Plaintiff is correct with respect to part (a), i.e., that the Magistrate
Judge erroneously concluded that there was no lumbar nerve root impingement, the
ALJ’s decision reflects that the ALJ did not reach that conclusion. In addition, the
medical records reflect that the physician’s overall concluding “impressions” are
“mild L2-L3, mild L3-L4, and mild to moderate L4-L5 stenosis.” (Doc. No. 11-10,
PgID 496)
For the reasons set forth above, the Court finds that the ALJ’s decision was
supported by substantial evidence and was not based on any legally erroneous
determination.

Further, the Court accepts the Magistrate Judge’s Report and

Recommendation as this Court’s findings of fact and conclusions of law.
For the reasons set forth above,
IT IS ORDERED that the Report and Recommendation of Magistrate Judge
R. Steven Whalen [Doc. No. 22, filed January 31, 2016] is ACCEPTED and
ADOPTED as this Court’s findings of fact and conclusions of law.
IT IS FURTHER ORDERED that Plaintiff’s Objections [Doc. No. 25,
filed February 22, 2016] are OVERRULED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary
Judgment [Doc. No. 17, filed August 27, 2015] is DENIED.

IT IS FURTHER ORDERED that Defendant’s Motion for Summary
Judgment [Doc. No. 20, filed October 7, 2015] is GRANTED.
IT IS FURTHER ORDERED that this action is DISMISSED with
prejudice.

s/Denise Page Hood
DENISE PAGE HOOD
United States District Judge
DATED: February 29, 2016

Proof of Service
The undersigned certifies that a copy of the foregoing Order
Accepting Report and Recommendation and Dismissing Action
was served on the attorneys and parties of record herein by
electronic means or U.S. Mail on February 29, 2016
s/Kim Grimes
Acting in the Absence of
LaShawn Saulsberry, Case Manager

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