Jackson v. Commissioner of Social Security

Filing 23

ORDER (1) Overruling Plaintiff's 21 Objections to the Magistrate Judge's 20 Report and Recommendation, (2) Adopting 20 Report and Recommendation as the Opinion of the Court, (3) Denying Plaintiff's 13 Motion for Summary Judgment, and (4) Granting Defendant's 16 Motion for Summary Judgment. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DEREK VAN JACKSON,
Plaintiff,

Case No. 15-cv-13792
Hon. Matthew F. Leitman

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_________________________________/
ORDER (1) OVERRULING PLAINTIFF’S OBJECTIONS (ECF #21) TO
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
(ECF #20), (2) ADOPTING REPORT AND RECOMMENDATION AS THE
OPINION OF THE COURT, (3) DENYING PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT (ECF #13), AND (4) GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT (ECF #16)
In this action, Plaintiff Derek Van Jackson (“Jackson”) challenges the denial
of his application for supplemental security income (“SSI”) benefits. After the
parties filed cross-motions for summary judgment, the assigned Magistrate Judge
issued a Report and Recommendation in which he recommends that the Court (1)
grant summary judgment in favor of the Defendant, the Commissioner of Social
Security (the “Commissioner”), and (2) deny Jackson’s motion for summary
judgment (the “R&R”). (See ECF #20.) Jackson filed a timely objections to the
R&R (the “Objections”). (See ECF #21.) The Court has conducted a de novo review
of the portions of the R&R to which Jackson has objected. For the reasons stated
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below, the Court OVERRULES the Objections, ADOPTS AS THE OPINION OF
THE COURT the well-reasoned R&R, GRANTS the Commissioner’s motion for
summary judgment, and DENIES Jackson’s motion for summary judgment.
I
A1
On June 21, 2012, Jackson filed an application for SSI benefits (the
“Application”). (See Admin. R., ECF #11-6 at 9-14, Pg. ID 345-50.)

In the

Application, Jackson alleged he became disabled on June 1, 2003. (See id.) Among
other things, Jackson insists that he suffers from depression, carpal tunnel syndrome,
a degenerative hip condition, and numerous gastrointestinal illnesses that prevent
him from working.

The Social Security Administration (the “SSA”) denied the

Application because it found that Jackson was not disabled. (See Admin. R., ECF
#11-4 at 7-10, Pg. ID 212-15.)
Jackson requested and received a de novo hearing before an administrative
law judge (an “ALJ”). ALJ Ben Barnett (“ALJ Barnett”) held that hearing on July
3, 2013. On August 13, 2013, ALJ Barnett issued a written decision affirming the
SSA’s denial of benefits. (See Admin. R., ECF #11-3 at 39-51, Pg. ID 160-72.) He
concluded that Jackson was not disabled and was not entitled to benefits. (See id.)

1

The Court recites only the facts relevant to Jackson’s Objections. A full description
of the facts is available in the R&R.
2

Jackson sought review of ALJ Barnett’s decision from the SSA’s Appeals
Council. On March 7, 2015, the Appeals Council vacated ALJ Barnett’s decision
and remanded Jackson’s Application for a second hearing. (See Admin R., ECF #113 at 62-63, Pg. ID 183-84.) The Appeals Council determined that ALJ Barnett erred
when he failed to evaluate the medical opinions of consulting examiner Anthony
Gensterblum, Ph.D (“Dr. Gensterblum”). (See id.) It ordered an ALJ to offer
Jackson a new hearing and to consider the findings of Dr. Gensterblum when
reviewing Jackson’s request for benefits. (See id.)
Jackson’s case was reassigned to ALJ Paul Jones (“ALJ Jones”). On June 9,
2015, ALJ Jones held a second hearing on the Application. Following that hearing,
ALJ Jones issued a written decision in which he determined that Jackson was not
disabled and was not entitled to benefits. (See Admin R., ECF #11-3 at 68-78, Pg.
ID 189-99.) As the Appeals Council required, ALJ Jones reviewed and considered
Dr. Gensterblum’s medical opinions in his decision. ALJ Jones concluded that those
opinions were entitled to “little weight” because they were based largely on
Jackson’s own “subjective complaints” (which ALJ Jones found not credible) and
the representations of Jackson’s girlfriend (whom ALJ Jones concluded was not an
impartial observer). (ECF #11-3 at 75, Pg. ID 196.) ALJ Jones also noted that “Dr.
Gensterblum saw [Jackson] only once and [did] not have a treating relationship with

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[Jackson].” (Id.) The Appeals Council thereafter declined to review ALJ Jones’
decision. (See Admin R., ECF #11-2 at 2-4, Pg. ID 32-34.)
B
On February 9, 2016, Jackson filed this action challenging the SSA’s denial
of benefits. (See Compl., ECF #1.) Jackson and the Commissioner then filed crossmotions for summary judgment. (See Jackson’s Mot. Summ. J., ECF #13;
Commissioner’s Mot. Summ. J., ECF #16.) The Court referred the cross-motions to
the assigned Magistrate Judge. In his motion for summary judgment, Jackson
alleged that ALJ Jones erred in three ways. (See Jackson Mot. at 10, ECF #13 at Pg.
ID 1071.) First, Jackson argued that ALJ Jones did not afford proper weight to either
the medical opinions of Dr. Gensterblum or to Jackson’s treating physician Dr. Larry
Farr (“Farr”). (See id. at 15-20, ECF #13 at Pg. ID 1077-81.) More specifically,
Jackson insisted that ALJ Jones did not follow the requirements of the Appeals
Council to fully consider Dr. Gensterblum’s opinion and did not provide sufficient
reasons for affording “little weight” to Dr. Farr’s opinion, an opinion ALJ Jones
found “ambiguous.” (Id.) Second, Jackson claimed that ALJ Jones did not consider
the effect of all of Jackson’s symptoms when assessing Jackson’s ability to work.
(See id. at 20-21, ECF #13 at Pg. ID 1081-82.) Finally, Jackson argued that ALJ
Jones’ conclusion that Jackson was not credible was not supported by evidence in
the record. (See id. at 22, ECF #13 at Pg. ID 1083.)
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On February 15, 2017, the Magistrate Judge issued the R&R in which he
recommends that the Court grant the Commissioner’s motion and deny Jackson’s
motion. (See R&R, ECF #20) In arriving at his recommendation, the Magistrate
Judge carefully analyzed the three arguments that Jackson made in his motion for
summary judgment, but he was not persuaded by any of them. (See id.)
On February 28, 2017, Jackson filed the Objections. (See ECF #17.) The
Objections raise the same three arguments described above that Jackson made in his
summary judgment motion. (See id.)
II
A
Where a party has objected to portions of a Magistrate Judge’s R&R, the Court
reviews those portions de novo. See Fed. R. Civ. P. 72(b)(3); see also Lyons v.
Comm’r of Soc. Sec., 351 F.Supp.2d 659, 661 (E.D. Mich. 2004). The Court has no
duty to conduct an independent review of the portions of the R&R to which a party
has not objected. See Thomas v. Arn, 474 U.S. 140, 149 (1985).
B
In reviewing the disputed findings of an ALJ, the Court is limited to
determining whether those findings are supported by substantial evidence and are
made pursuant to proper legal standards. See 42 U.S.C. § 405(g) (“The findings of
the Commissioner of Social Security as to any fact, if supported by substantial
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evidence, shall be conclusive . . . .”). 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.” Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec’y of
Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). “It 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. “[A] court is obligated to remand for
further administrative proceedings if there are any unresolved essential factual
issues.” Meehleder v. Comm’r of Soc. Sec., 2012 WL 3154968, at *2 (E.D. Mich.
Aug. 2, 2012) (citing Newkirk v. Shalala, 25 F.3d 316, 318 (6th Cir. 1994)).
III
As noted above, Jackson has raised three objections to the R&R. The Court
considers, and ultimately rejects, each argument below.
A
Jackson first objects to the limited weight ALJ Jones provided the medical
opinions of Dr. Gensterblum and Dr. Farr.2 (See Objections, ECF #21 at 3-7, Pg. ID
1167-71.) With respect to Dr. Gensterblum, Jackson argues that ALJ Jones did not

2

In the middle of his discussion of Dr. Gensterblum’s opinion, Jackson raises a
separate objection – that “substantial evidence did not support the ALJ’s
determination that [Jackson] could conduct work activities on a sustained basis.”
(Objections, ECF #21 at 5, Pg. ID 1169.) The Court addresses this separate
argument in sub-paragraph III(C) below.
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“fully analyze” Dr. Gensterblum’s opinion on remand as the Appeals Council
required and that ALJ Jones wrongly “swept aside” the observations Jackson’s
girlfriend reported to Dr. Gensterblum. (Id. at 4, Pg. ID 1168.) As to Dr. Farr,
Jackson insists that ALJ Jones “entirely disregarded” Dr. Farr’s opinions without
providing sufficient reasons for doing so, leaving the court “without a basis upon
which to judge the thoroughness of the ALJ’s analysis.” (Id. at 6-7, Pg. ID 117071.)
This objection is overruled. First, the objection largely restates the arguments
Jackson made in his motion for summary judgment and does not specifically identify
any errors by the Magistrate Judge as opposed to errors ALJ Jones made in the first
instance. “An ‘objection’ that does nothing more than state a disagreement with a
magistrate's suggested resolution, or simply summarizes what has been presented
before, is not an ‘objection’ as that term is used in this context.” Aldrich v. Bock,
327 F. Supp. 2d 743, 747 (E.D. Mich. 2004). See also Miller v. Currie, 50 F.3d 373,
380 (6th Cir. 1995) (“[A] general objection to a magistrate's report, which fails to
specify the issues of contention, does not satisfy the requirement that an objection
be filed. The objections must be clear enough to discern those issues that are
dispositive and contentious”).3

3

  See also Zimmerman v. Cason, 354 Fed. App’x 228, 230 (6th Cir. 2009) (“A
general objection to the entirety of the magistrate's report has the same effects as
would failure to object. The district court's attention is not focused on any specific
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Second, the Magistrate Judge considered and rejected nearly all of the
arguments Jackson raises in this objection, and Jackson has not offered any reason
to reject the Magistrate Judge’s conclusions. For example, while Jackson objects
that ALJ Jones insufficiently analyzed Dr. Gensterblum’s medical opinion in only a
single paragraph (see Objections, ECF #21 at 4, Pg. ID 1168), the Magistrate Judge
explained in the R&R how ALJ Jones repeatedly discussed Dr. Gensterblum’s
opinion throughout his decision and how he provided good reasons for discounting
that opinion. (See R&R at 18-21, Pg. ID 1142-45.) Jackson does not explain in any
way how the Magistrate Judge’s careful analysis is faulty. Moreover, ALJ Jones
explained in detail why the observations Jackson’s girlfriend, and her reports to Dr.
Gensterblum, were not entitled to much weight. (See Admin R., ECF #11-3 at 75,
Pg. ID 196 (noting that while the observations and opinions of Jackson’s girlfriend
were “largely supportive of his allegations … by virtue of [her] relationship with
[Jackson], [she] cannot be considered a disinterested third party witness whose
statements would not tend to be colored by affection for [Jackson] and a natural
tendency to agree with the symptoms and limitations [he] alleges”).)

issues for review, thereby making the initial reference to the magistrate useless. [….]
The duplication of time and effort wastes judicial resources rather than saving them,
and runs contrary to the purposes of the Magistrates Act”).
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Likewise, Jackson insists in this objection that ALJ Jones erred by not fully
articulating his reasons for affording “little weight” to the medical opinion of Dr.
Farr. But Jackson does not raise any specific objection to the Magistrate Judge’s
analysis of this issue or explain in any way how the Magistrate Judge erred.
Jackson’s general objection to ALJ Jones’ use and analysis of Dr. Farr’s opinion fails
to provide a basis to disturb the Magistrate Judge’s R&R. Moreover, the Court
agrees with the Magistrate Judge that Dr. Farr’s opinion is so ambiguous that it adds
essentially nothing to the analysis of whether Jackson is disabled. (See R&R at 30,
Pg. ID 1154.) Indeed, as the Magistrate Judge aptly points out, Dr. Farr’s report was
replete with “equivocal expressions.” (Id.) For example, Dr. Farr reported that he
was “unable” to answer how many hours Jackson could sit or walk on a typical day.
(Admin R., ECF #11-11 at 12, Pg. ID 751.) Likewise, when asked “[t]o what degree
can [Jackson] tolerate work stress” Dr. Farr responded “I do not know!” (Id. at 16,
Pg. ID 756.) Finally, when asked, “on average, how often would [Jackson] be likely
to be absent from work as a result of [his] impairments or treatment?” Dr. Farr
answered “Who knows?” (Id.) Jackson has not provided any basis to reject the
Magistrate Judge’s conclusion that ALJ Jones “was permitted to take into account
the strikingly ambivalent nature of Dr. Farr’s report.” (R&R at 30, Pg. ID 1154.)
Finally, Jackson argues to the extent Dr. Farr’s opinion was “ambiguous,”
ALJ Jones breached his “affirmative duty [under Social Security regulation 96-5p
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(“SSR 96-5p”)] to contact the doctor and see if the ambiguity could be clarified.”
(Objections, ECF #21 at 7, Pg. ID 1171.) This argument fails for two reasons.
First, this argument was not first presented to the Magistrate Judge. “[W]hile
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.” Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir.
2000). Here, Jackson did not argue to the Magistrate Judge that ALJ Jones had a
duty to contact Dr. Farr under SSR 96-5p to get further clarification as to his medical
opinions. Thus, Jackson has waived this argument. See Murr, 200 F.3d at 902 n.1
(“Petitioner's failure to raise this claim before the magistrate constitutes waiver”).
Moreover, and in any event, even if ALJ’s once had a duty to contact treating
sources to clarify ambiguous medical opinions, the decision whether to seek
clarification is now discretionary. See, e.g., Hall v. Comm'r of Soc. Sec., 2016 WL
3869936, *9 (E.D. Mich. June 3, 2016) (“New regulations became effective on
March 26, 2012, rendering the decision to recontact discretionary”); Glover v.
Comm’r of Soc. Sec., 2016 WL 7638142, at *8 (N.D. Ohio. Dec. 22, 2016) (same;
collecting cases recognizing same); Moss v. Colvin, 171 F.Supp.3d 1249, 1256 (N.D.
Ala. 2016) (“SSR 96–5p has been superseded ... and the decision to recontact a
physician is now within the ALJ's discretion”). Thus the provision Jackson relies on
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is no longer operative law and provides no basis to reject the Magistrate Judge’s
recommended disposition of this case.
B
In his second objection, Jackson argues that the Magistrate Judge was “not
familiar with the testimony or exhibits” in his administrative proceedings before ALJ
Jones. (See Objections, ECF #21 at 7-8, Pg. ID 1171-72.) This objection is overruled
because the Magistrate Judge’s detailed and well-reasoned R&R makes abundantly
clear that he was familiar with the facts of Jackson’s underlying proceedings.
In this objection, Jackson unfairly “nitpicks” one minor aspect of the R&R.
Jackson argues that the Magistrate Judge “seem[ed] to think [Jackson was] making
an argument over the ALJ failing to include the fact of a claimant needing to use a
cane which was not included in the [residual functional capacity] presented to the
[vocational expert]. The cane argument is a quote from another case, Ronald Miller
v. Commissioner of Social Security.” (Objections, ECF #21 at 8, Pg. ID 1172.) The
Court has reviewed Jackson’s summary judgment motion, and it is not at all clear
whether Jackson was making an argument regarding the use of a cane. On page 21
of that motion, Jackson wrote that “[i]n this case, the use of a cane was not factored
into the [residual functional capacity] or the hypothetical question to the [vocational
expert].” (Jackson Mot. at 21, ECF #13 at Pg. ID 1082.) Jackson now insists that
“this case” was the Ronald Miller case. But Jackson’s citation to the Ronald Miller
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case did not use the proper form, and it is at best ambiguous whether Jackson was
referring to Ronald Miller or referring to his own case. In any event, the Magistrate
Judge’s analysis of the “cane” issue was included in a footnote (see R&R at 33-34
n.16, Pg. ID 1157-58), and, even if misplaced, it in no way undercuts the soundness
of the Magistrate Judge’s ultimate conclusion that Jackson was able to perform some
work.
Jackson also includes in this same objection the unrelated argument that the
ALJ “did not credit the doctor’s opinions as required by the regulations and did not
treat the consistently low GAF scores4 with sufficient respect.” (Objections, ECF
#21 at 8, Pg. ID 1172.) Jackson further insists that his case is analogous to the Sixth
Circuit Court of Appeals’ decision in Miller v. Comm’r of Soc. Sec., 811 F.3d 825
(6th Cir. 2016), in which the Sixth Circuit determined that an ALJ’s findings were
contradicted by the medical evidence in the record and in which the court criticized
the ALJ for his “focus on isolated, often stale, portions of the record.” Id. at 838.
However, as with his objections related to Dr. Gensterblum and Dr. Farr, this
objection does not specifically identify any error by the Magistrate Judge. That
omission is fatal to this objection because the Magistrate Judge explained in detail

4

“The GAF score is a subjective determination that represents “the clinician's
judgment of the individual's overall level of functioning [….] It ranges from 100
(superior functioning) to 1 (persistent danger of severely hurting self or others,
persistent inability to maintain minimal personal hygiene, or serious suicidal act with
clear expectation of death).” (R&R at 5-6 n.6, Pg. ID 1129-30.)
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why “the fact that Dr. Gensterblum assigned [Jackson] a relatively low GAF of 39
does not mean that [Jackson] was entitled to benefits or that the ALJ was required
to adopt wholesale Dr. Gensterblum’s conclusions.” (R&R at 24-26, Pg. ID 114850.) The Court finds that explanation to be persuasive. Nor has Jackson articulated
how his case is analogous to Miller aside from repeating his argument that, like in
Miller, ALJ Jones failed to properly account for Jackson’s low GAF score (an
argument the Magistrate Judge considered and rejected in the R&R). This objection
therefore fails.
C
Jackson’s third and final objection is that ALJ Jones erred when he found
Jackson’s statements about the intensity, persistence, and limiting effects of his
alleged symptoms not credible. (See Objections, ECF #21 at 8-9, Pg. ID 1172-73.)
This objection does not mention the Magistrate Judge at all and identifies no flaws
with the R&R’s reasoning or conclusion. It therefore fails to state a proper objection
and fails for that reason. See Aldrich, Miller, Zimmerman, supra. In fact, the
Magistrate Judge fully considered and analyzed Jackson’s argument with respect to
ALJ Jones’ credibility determination and concluded that “the ALJ permissibly
addressed the record as a whole and explained adequately his reasons for assessing
[Jackson’s] credibility.” (R&R at 34-38, Pg. ID 1158-62.)
convinced the Court that it should disturb this recommendation.
13

Jackson has not

Furthermore, this objection is based largely on Dr. Gensterblum’s findings
which, Jackson insists, corroborate his claimed physical limitations. (See Objections,
ECF #21 at 8-9, Pg. ID 1172-73.) But, for the reasons explained above, ALJ Jones
adequately explained in his decision why he discounted the opinion of Dr.
Gensterblum, and Jackson has not persuaded the Court that ALJ Jones committed
reversible error in doing so.
Finally, Jackson argues that ALJ Jones “did not sufficiently establish that the
claimant’s social activities, as drawn from isolated portions of the record, allowed
him to function independently on a sustained basis and thus perform full time
consistent work.” (Objections, ECF #21 at 5, Pg. ID 1169.) The Court disagrees.
“The ALJ is not required to accept the testimony of a claimant if it conflicts with
medical reports, the claimant's prior statements, the claimant's daily activities, and
other evidence in the record.” Biermaker v. Comm’r of Soc. Sec., 2016 WL 7985329,
at *8 (E.D. Mich. June 13, 2016). Here, ALJ Jones thoroughly reviewed Jackson’s
medical record and identified many different pieces of evidence that supported his
conclusion that Jackson’s subjective complaints and insistence that he was unable to
work were not credible.
For example, ALJ Jones pointed out that during a December 2012
examination, Jackson “had a normal gait” and “intact grip strength.” (Admin R.,
ECF #11-3 at 76, Pg. ID 197.) And during a March 2013 examination, Dr. Farr
14

reported that Jackson’s “pain was controlled with medication.” (Id.) Then, February
2015, Jackson suffered minor injuries when he fell out of a moving truck while
helping the mother of his daughter move. (See id. at 74, Pg. ID 195.) When Jackson
was discharged from the hospital following that incident, he “declined” to use a
wheelchair and “ambulated with a steady gait.” (Id. at 76, Pg. ID 197.) Given
Jackson’s conduct of climbing into a moving truck and helping someone move, it
was not unreasonable for ALJ Jones to reject as not credible Jackson’s testimony
that he was “disabled or in debilitating pain.” (Id.) Lastly, ALJ Jones took into
consideration that Jackson lied about previously using cocaine. (See id. at 75, Pg. ID
196.) Jackson insists that “[w]hether or not he used cocaine some 20 years before
the hearing is inconsequential.” (Objections, ECF #21 at 9, Pg. ID 1173.) But the
fact that Jackson testified before ALJ Jones that he never used cocaine, when he
previously told Dr. Gensterblum that he had a history of cocaine use (see Admin R.,
ECF #11-9 at 8, Pg. ID 628), is relevant to Jackson’s overall credibility. Jackson
has not persuaded the Court that the Magistrate Judge erred when he recommended
rejecting Jackson’s credibility argument.
IV
For the reasons stated above, the Court is not persuaded by any of Jackson’s
three bases in the Objections. Accordingly, IT IS HEREBY ORDERED that
 Jackson’s Objections (ECF #21) to the R&R is OVERRULED;
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 The Magistrate Judge’s R&R (ECF #20) is ADOPTED AS THE OPINION
OF THE COURT;
 Jackson’s Motion for Summary Judgment (ECF #13) is DENIED; and
 The Commissioner’s Motion for Summary Judgment (ECF #16) is
GRANTED.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: March 22, 2017
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on March 22, 2017, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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