Stief v. Social Security

Filing 27

OPINION AND ORDER Adopting 24 Report and Recommendation Granting 22 Motion for Summary Judgment filed by Commissioner of Social Security Denying 17 Motion for Summary Judgment filed by Charles Kirwin Stief - Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHARLES KIRWIN STIEF,
Plaintiff,

Case No. 16-11923
Paul D. Borman
United States District Judge

v.
COMMISSIONER OF SOCIAL
SECURITY,

Patricia T. Morris
United States Magistrate Judge

Defendant.
______________________________/
OPINION AND ORDER:
(1) OVERRULING PLAINTIFF’S OBJECTIONS (ECF NO. 25);
(2) ADOPTING THE REPORT AND RECOMMENDATION OF THE
MAGISTRATE JUDGE (ECF NO. 24);
(3) DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
(ECF NO. 17);
(4) GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT (ECF NO. 22); AND
(5) AFFIRMING THE DECISION OF THE COMMISSIONER OF
SOCIAL SECURITY
On May 23, 2017, Magistrate Judge Patricia T. Morris issued a Report and
Recommendation on the parties’ cross-motions for summary judgment. (ECF No.
24, Report and Recommendation.) In the Report and Recommendation, the
Magistrate Judge recommended that this Court deny Plaintiff Charles Kirwin
Stief’s Motion for Summary Judgment (ECF No. 17, Pl.’s Mot.), grant Defendant
Commissioner of Social Security’s Motion for Summary Judgment (ECF No. 22,
Def.’s Mot.), and affirm the decision of the Commissioner of Social Security to

deny Plaintiff’s claim for a period of disability and Disability Insurance Benefits
under the Social Security Act, 42 U.S.C. § 401 et seq. (ECF Nos. 13-2-13-9,
Transcript of Social Security Proceedings (hereinafter “Tr. at ___”) at 24-34.).
Now before the Court are Plaintiff’s Objections to the Report and
Recommendation. (ECF No. 25, Pl.’s Objs.) Defendant filed a timely Response.
(ECF No. 26, Def.’s Resp.) 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 overrule Plaintiff’s
Objections and adopt the Magistrate Judge’s Report and Recommendation.
BACKGROUND
The Magistrate Judge comprehensively set forth the procedural and factual
background of this matter in her Report and Recommendation. The Court adopts
that account here. (Report and Recommendation at 3-13, Pg ID 982-992.)
STANDARDS OF REVIEW
Pursuant to Federal Rule of Civil Procedure 72(b) and 28 U.S.C. §
636(b)(1), the Court conducts a de novo review of the portions of the Magistrate
Judge’s Report and Recommendation to which a party has filed “specific written
objections” in a timely manner. Lyons v. Comm’r Soc. Sec., 351 F. Supp. 2d 659,
661 (E.D. Mich. 2004). A district court “may accept, reject, or modify, in whole or
2

in part, the findings or recommendations made by the magistrate judge.” Id. Only
those objections that are specific are entitled to a de novo review under the statute.
Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). “The parties have the duty to
pinpoint those portions of the magistrate's report that the district court must
specially consider.” Id. (internal quotation marks omitted). “A general objection, or
one that merely restates the arguments previously presented is not sufficient to
alert the court to alleged errors on the part of the magistrate judge.” Aldrich v.
Bock, 327 F. Supp. 2d 743, 747 (E.D. Mich. 2004). Likewise, an objection that
does nothing more than disagree with a magistrate judge's determination “without
explaining the source of the error” is not a valid objection. Howard v. Sec'y of
Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).
In reviewing the findings of the Administrative Law Judge (“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 (6th Cir. 1994).
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
3

(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”) (internal quotation marks omitted). “If
the Commissioner’s decision is supported by substantial evidence, [the court] 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)).
As to whether proper legal criteria were followed, a decision of the Social
Security Administration (“SSA”) that is 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. It is “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 also Cruse v. Comm’r of Soc.
Sec., 502 F.3d 532, 542 (6th Cir. 2007) (noting that the “ALJ’s credibility
4

determinations about the claimant are to be given great weight, ‘particularly since
the ALJ is charged with observing the claimant’s demeanor and credibility’”)
(quoting Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997)).
ANALYSIS
Plaintiff raises nine Objections to the Report and Recommendation. Seven of
the nine Objections are substantially devoid of any argument that was not already
presented in Plaintiff’s Motion for Summary Judgment; Plaintiff’s second and
ninth objections do attempt to identify a specific legal error on the part of the
Magistrate Judge, but each lacks merits for the reasons discussed below.
Accordingly, the Court will overrule all nine of Plaintiff’s Objections and adopt the
Magistrate Judge’s Report and Recommendation.
Objection 1: Weight Given to Medical Opinions
First, Plaintiff objects to the Magistrate Judge’s finding that ALJ Patricia S.
McKay correctly evaluated certain medical opinions in the record, taking particular
issue with her determination that “the ALJ properly applied the relevant factors in
evaluating the opinions of Dr. Madej, Dr. Hoffman, Dr. Vollmer, and Dr. Terlep
under 20 CFR 404.1527[(c)].” (Pl.’s Objs. at 2, Pg ID 1009.)
As summarized by the Magistrate Judge, the factors that 20 C.F.R. §
404.1527(c) provides for assigning probative value to medical opinions include
5

“whether the source examined the claimant, ‘the length of the treatment
relationship and the frequency of examination, the nature and extent of the
treatment relationship, supportability of the opinion, consistency of the opinion
with the record as a whole, and specialization of the treating source.’” (Report and
Recommendation at 14-15, Pg ID 993-94 (quoting Wilson, 378 F.3d at 544).)
Opinions of treating medical professionals that concern “the nature and severity of
[the claimant’s] impairment(s)[,]” if they are “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and [are] not inconsistent
with the other substantial evidence” in the case record, are to be given “controlling
weight.” 20 C.F.R. § 404.1527(c)(2).
The Magistrate Judge determined that psychologist Dr. Barbara Hofmann
did not qualify as a treating source,1 thus requiring the ALJ only to “generally . . .
explain the weight given” to her opinions or to “otherwise ensure that the
discussion of the evidence . . . allows a claimant or subsequent reviewer to follow
the adjudicator’s reasoning, when such opinions may have an effect on the
outcome of the case.” (Report and Recommendation at 19-20, Pg ID 998-99
(quoting SSR 06-03p, 2006 WL 2329939, at *6 (S.S.A. Aug. 9, 2006)).) That some
of Dr. Hofmann’s opinions were conclusory and that others were contradicted by
1

Plaintiff makes a separate Objection to this finding, which is discussed below.
6

record evidence led the Magistrate Judge to find no error in the ALJ’s giving little
weight to those opinions. Psychologist Dr. Gerald Terlep and physician Dr. John
Vollmer were treating sources, but their opinions were given little weight by the
ALJ (tr. at 31), and the Magistrate Judge concluded that the ALJ gave good
reasons for this: Plaintiff’s participation in producing Dr. Vollmer’s opinions,
substantial evidence inconsistent with Dr. Terlep’s opinions, and the conclusory
nature of both doctors’ opinions. The ALJ afforded “some weight” to the opinions
of psychologist Dr. Patricia Madej, finding that even though they were based on a
one-time consultative examination, they were consistent with objective information
in the record. (Tr. at 30.) Dr. Madej’s opinions partially supported the ALJ’s
determination that Plaintiff is not disabled under the Social Security Act. (Id.)
Plaintiff identifies no specific error in the reasoning by which the Magistrate
Judge concluded that the ALJ properly applied the § 404.1527(c)(2) factors to the
medical opinion evidence in the record, and as a result, his first Objection presents
no argument beyond that which was already asserted in Plaintiff’s Motion for
Summary Judgment. Seeing no reason to set aside the Magistrate Judge’s findings,
the Court will overrule Plaintiff’s first Objection.
Objection 2: Dr. Hofmann’s Opinions as Treating Source Opinions
As noted above, one component of the Magistrate Judge’s analysis of the
7

weight placed by the ALJ on Dr. Hofmann’s opinions was the Magistrate Judge’s
finding that Dr. Hofmann was not a “treating source,” as would require the ALJ to
give her opinions “controlling weight.” 20 C.F.R. § 404.1527(c)(2). Plaintiff
objects, pointing out that the ALJ did not expressly indicate in her decision
whether Dr. Hofmann was a treating source, and that the Magistrate Judge
erroneously stated that Dr. Hofmann examined Plaintiff twice over the course of
two years, when in fact she did so three times over the course of three years.
The governing regulations provide that “[t]reating source means [a
claimant’s] own acceptable medical source who provides . . . or has provided [the
claimant] with medical treatment or evaluation and who has, or has had, an
ongoing treatment relationship” with him or her. 20 C.F.R. § 404.1527(c)(2). An
“ongoing treatment relationship” is generally found where “medical evidence
establishes” that the claimant has seen the source “with a frequency consistent with
accepted medical practice for the type of treatment and/or evaluation required for
[the claimant’s] medical condition(s).” Id. A treating source can be a practitioner
who has “treated or evaluated [the claimant] only a few times or only after long
intervals (e.g., twice a year) . . . if the nature and frequency of the treatment or
evaluation is typical for [the claimant’s] condition(s).” Id. Further, the use of the
phrase “treatment and/or evaluation” in the regulation suggests that a treating
8

source’s role can be diagnostic only, so long as its “nature and frequency . . . is
typical for [the claimant’s] condition(s).” Id.; see also Dickey-Williams v. Comm'r
of Soc. Sec., 975 F. Supp. 2d 792, 802 (E.D. Mich. 2013) (classifying as a treating
source a clinical neurologist who examined the claimant eight times over the
course of 26 months, and after each examination “prepared a multi-page letter
explaining the results of his examination and his medical opinions”). Even so, in
the Sixth Circuit, “as a matter of law, more than one examination is required to
attain treating-physician status. Indeed, ‘depending on the circumstances and
nature of the alleged condition, two or three visits often will not suffice for an
ongoing treatment relationship.’” Pethers v. Comm'r of Soc. Sec., 580 F. Supp. 2d
572, 579 (W.D. Mich. 2008) (internal citations omitted) (quoting Kornecky v.
Comm'r of Soc. Sec., 167 F. App'x 496, 506-07 (6th Cir. 2006)).
This Court agrees with the Magistrate Judge that Dr. Hofmann does not
qualify as a treating source. The administrative record does indicate that she
examined Plaintiff three times in three years rather than twice in two,2 and while

2

Defendant correctly notes an important qualification to this: although the record
shows that Dr. Hofmann examined Plaintiff on three separate occasions with the
first in July 2008, the record only contains Dr. Hofmann’s write-ups of the latter
two, which took place in August 2009 and July 2011. (Tr. at 444, 508.) Plaintiff
attributes this to the fact that the July 2008 examination preceded his claimed
disability onset date of August 10, 2010 (ECF No. 23, Pl.’s Reply at 3 n.1; tr. at
9

relative infrequency of examinations or treatments does not necessarily disqualify
a practitioner as a treating source, Plaintiff has not clearly demonstrated that the
infrequency of his visits to Dr. Hofmann is typical for his conditions. It may be
true, as Plaintiff maintains, that “[p]sychological evaluations and assessments like
those provided by [Dr. Hofmann] by their nature cannot be expected to be
performed with great frequency, as they are intended to show progression of
symptoms and changes in functioning over a period of time.” (Pl.’s Objs. at 3, Pg
ID 1010.) But the central purpose behind the “treating physician rule” is to afford
special status to the opinions of practitioners who have, in administering an
ongoing course of treatments, evaluations, or both, developed a special familiarity
with their patients’ relevant medical conditions. See 20 C.F.R. § 404.1527(c)(2)
(providing that more weight is given to medical opinions from treating sources
because they are “likely to be the medical professionals most able to provide a
detailed, longitudinal picture of [the claimant’s] medical impairment(s) and may
bring a unique perspective to the medical evidence that cannot be obtained from
the objective medical findings alone or from reports of individual examinations,

24)—though this is equally true of the August 2009 examination. In any case, the
scope of this Court’s analysis is cabined to the August 2009 and July 2011 reports
in the record, as well as the limited extent to which the August 2009 report
references test results from the July 2008 examination. (Tr. at 446.)
10

such as consultative examinations or brief hospitalizations”).
The administrative record strongly suggests that Dr. Hofmann’s opinions
were based on a series of discrete “individual examinations” rather than an
ongoing course of treatment. Both of Dr. Hofmann’s reports that are in the record
begin by stating that Plaintiff was “referred for an evaluation to aid in diagnostic
clarification.” (Tr. at 444, 508.) Plaintiff was referred to Dr. Hofmann by Dr.
Terlep, who as of the hearing date had been treating Plaintiff monthly for
approximately six years (tr. at 24), and whom both the ALJ and Defendant agree
was a treating source (id.; Def.’s Mot. at 3, Pg ID 946). The evidence strongly
implies that Dr. Hofmann’s assessments supplemented Plaintiff’s primary and
ongoing course of treatment with Dr. Terlep, and this weighs against a finding that
her assessments are treating-source opinions. See, e.g., Daniels v. Comm'r of Soc.
Sec., 152 F. App'x 485, 491 (6th Cir. 2005) (“Daniels's two visits to Dr. Pinson
within the span of a few days is not a frequency consistent with the treatment of
back pain, as evidenced by the fact that he received treatment from other sources
on many other occasions.”). Given that, and given the relative infrequency of Dr.
Hofmann’s examinations, this Court finds no error in the determinations of the
Magistrate Judge and the ALJ that Dr. Hofmann was not a treating source.
Finally, even if Dr. Hofmann’s opinions were treating source opinions, such
11

opinions are entitled to controlling weight only if they “[are] not inconsistent with
the other substantial evidence” in the record. 20 C.F.R. § 404.1527(c)(2). Here, the
Magistrate Judge noted that there was substantial record evidence that conflicted
with Dr. Hofmann’s opinions, including evidence of Plaintiff’s functional abilities,
as well as opinion evidence from Dr. Madej and consultative psychologist Dr.
Jerry Csokasy. (Report and Recommendation at 21-22, Pg ID 1000-01.) Plaintiff
has made no specific argument to the contrary in his Objections.
For all of these reasons, the Court will overrule Plaintiff’s second Objection.
Objection 3: The ALJ’s Purported Substitution of Her Own Judgments
for Medical Evidence
Plaintiff objects to the Magistrate Judge’s finding that the ALJ did not
substitute her own judgment for that of a medical professional, arguing that the
ALJ “fail[ed] to provide substantial evidence to support her weighing of the
opinion evidence and instead relie[d] upon her own assessment of [Plaintiff]’s
functional capacity and activities of daily living.” (Pl.’s Objs. at 4, Pg ID 1011.)
The Magistrate Judge considered and rejected this argument, detailing the
substantial evidence that the ALJ cited to justify the weight she assigned to the
medical opinion evidence in the record (Report and Recommendation at 19-25, Pg
ID 998-1004), and Plaintiff has not made any non-generic argument that he did not

12

already make in his Motion for Summary Judgment. The Court will overrule
Plaintiff’s third Objection.
Objection 4: The ALJ’s Purported Cherry-Picking of Evidence
Plaintiff contends that the ALJ selectively relied upon certain items of
evidence rather than considering the evidence in the record as a whole, but the only
aspect

of

this

argument

that

specifically

addresses

the

Report

and

Recommendation is Plaintiff’s assertion that the Magistrate Judge “limits
discussion of this issue to two short sentences[,]” whereupon Plaintiff cites the
arguments he made in his Motion for Summary Judgment. (Pl.’s Objs. at 4, Pg ID
1011.) The Magistrate Judge rejected Plaintiff’s cherry-picking argument based on
her earlier determinations that the ALJ’s decision was supported by substantial
evidence, and in his Objection, Plaintiff has not identified any specific error in that
decision. The Court will overrule Plaintiff’s fourth Objection.
Objection 5: Dr. Terlep’s Opinions as regards Listings 12.02 and 12.04
Plaintiff argued in his Motion for Summary Judgment that had the ALJ not
improperly disregarded Dr. Terlep’s testimony, she would not have concluded at

13

Step Three of the analysis that Plaintiff did not meet Listings 12.02 and 12.04.3
The Magistrate Judge acknowledged that the ALJ did not expressly discuss Dr.
Terlep’s views as to Listings 12.02 and 12.04 at Step Three of the analysis, and did
not discuss paragraph A of those Listings at all, but nevertheless found that the
ALJ’s lengthy discussion later in her decision of Dr. Terlep’s opinions
demonstrates that the ALJ properly considered those opinions, noting further that
the ALJ also supplied valid reasons for discrediting those opinions.
In his Objections, Plaintiff highlights both the ALJ’s failure to discuss Dr.
Terlep’s opinions in the context of Step Three and her failure to evaluate Plaintiff
under paragraph A of Listings 12.02 and 12.04,4 but beyond that, he makes no nongeneric argument that the Magistrate Judge’s findings were incorrect. The Court
will overrule Plaintiff’s fifth Objection.
3

In the third step of the “five-step sequential evaluation process” prescribed by 20
C.F.R. § 404.1520, the ALJ must compare the claimant’s medical impairments to a
listing of conditions set forth as Appendix 1 to § 404.1520. If the claimant has “an
impairment(s) that meets or equals one of [the] listings in appendix 1 . . . and meets
the duration requirement [in 20 C.F.R. § 404.1509],” the claimant will be
conclusively presumed to be disabled. 20 C.F.R. § 404.1520(a)(4)(iii).
4
As to the second of these two points, the Magistrate Judge noted that “Listings
12.02 and 12.04 ‘have three paragraphs, designated A, B, and C,’ and to meet
either listing a claimant must fulfill paragraphs A and B or paragraphs A and C.”
(Report and Recommendation at 23, Pg ID 1002 (quoting 20 C.F.R. Pt. 404,
Subpart P, App. I).) The ALJ presumably did not evaluate Plaintiff under
paragraph A because her determination that he did not satisfy paragraphs B or C
made this unnecessary. Plaintiff does not explain why this was legally erroneous.
14

Objection 6: Dr. Terlep’s Opinions as regards Plaintiff’s Residual
Functional Capacity
Plaintiff’s sixth Objection—that the ALJ did not properly consider Dr.
Terlep’s opinions in determining Mr. Stief’s Residual Functional Capacity—is a
slightly more general variation on Plaintiff’s fifth Objection. As with his fifth
Objection, in his sixth Objection Plaintiff generally disagrees with the Magistrate
Judge’s determination, and argues that the Magistrate Judge’s reasons for finding
the ALJ’s decision to be supported by substantial evidence are not apparent from
the text of the ALJ’s decision. And as with his fifth Objection, Plaintiff has neither
identified any specific disagreements that he did not already raise in his summary
judgment motion, nor cited case law to support his argument that the ALJ’s
discussion of Dr. Terlep’s opinions in one part of her decision cannot support the
conclusions drawn in another. The Court will overrule Plaintiff’s sixth Objection.
Objection 7: Weight Given to Opinions of State Agency Physicians
Plaintiff’s seventh Objection reiterates an argument he made in his summary
judgment motion: that the ALJ gave undue weight to the opinions of nonexamining state agency psychological and medical consultants (Dr. Csokasy and
Dr. W. Gupta respectively), which were rendered more than three years before the
hearing, and only for the purpose of making an initial determination at the outset of

15

Plaintiff’s application process.
Plaintiff’s seventh Objection adds nothing to the earlier version of the same
argument that Plaintiff has already made—and which the Magistrate Judge has
already considered. In any event, the record makes clear that the ALJ considered
the limitations of these opinions and thus gave them only “some weight.” (Tr. at 31
(“Although these individuals were non-examining, and therefore their opinions do
not as a general matter deserve as much weight as those of examining or treating
physicians, those opinions do deserve some weight, particularly in a case like this
in which there exist a number of other reasons to reach similar conclusions (as
explained throughout this decision).”).) The Magistrate Judge found the ALJ’s
explanations for the weight placed on these opinions to be supported by substantial
evidence, and this Court agrees. Plaintiff’s seventh Objection will be overruled.
Objection 8: Full and Fair Hearing
When it was first presented in his summary judgment motion, Plaintiff’s
assertion that he was denied a full and hearing did not contain any argumentative
substance separate from his claim that the ALJ selectively considered evidence,
and his claim that the ALJ failed in her duty of inquiry by neglecting to question
Dr. Terlep about inconsistencies between his opinions and other evidence in the
record. This remains true of Plaintiff’s restatement of the same argument in the
16

form of his eighth Objection, which bootstraps the cherry-picking argument in his
fourth Objection and the duty-of-inquiry argument in his ninth Objection. For that
reason, and because Plaintiff does not add any substance to the argument in its new
form, the Court will overrule Plaintiff’s eighth Objection.
Objection 9: The ALJ’s Purported Failure to Cross-Examine Dr. Terlep
Plaintiff’s ninth and final Objection is also based on an argument that he first
presented in his Motion for Summary Judgment: that the ALJ breached her duty
“to investigate the facts and develop the arguments both for and against granting
benefits” when she failed to cross-examine Dr. Terlep on inconsistencies between
his opinions and other record evidence that the ALJ later identified in her opinion
as a basis for affording Dr. Terlep’s opinions less weight. (ECF No. 17, Pl.’s Mot.
at 23, Pg ID 932 (quoting Sims v. Apfel, 530 U.S. 103, 111 (2000).) The Magistrate
Judge addressed this argument in the Report and Recommendation by pointing out
that “the ALJ commended the thorough questioning of Dr. Terlep performed by
Stief’s attorney, which brought on record a number of details regarding Dr.
Terlep’s assessment for the ALJ to weigh, as she did in her opinion.” (Report and
Recommendation at 26, Pg ID 1005.) The Magistrate Judge then contrasted this
case, in which Plaintiff had an attorney who thoroughly questioned the witness in
the context of a hearing that lasted over two hours, with Lashley v. Sec’y of Health
17

& Human Servs., 708 F.2d 1048 (6th Cir. 1983), in which the Sixth Circuit
reversed an ALJ’s negative determination “for the ALJ’s failure to develop the
administrative record [because] the claimant was unrepresented and inarticulate,
and the hearing lasted only twenty-five minutes.” (Report and Recommendation at
26, Pg ID 1005 (citing Lashley, 708 F.2d at 1051-53).)
Plaintiff maintains that Lashley “can easily be distinguished from the instant
case,” but does not state what he believes the material distinction to be. Plaintiff
then argues that the fact that he was represented and the fact that his attorney
questioned Dr. Terlep “does not remove the ALJ’s duty to see that the record is
fully developed and that [the] claimant is afforded an opportunity to address [the]
ALJ’s perceived inconsistencies in the record. The ALJ is not to hide the ball and
is to conduct a full and fair hearing.” (Pl.’s Objs. at 7, Pg ID 1014.)
Plaintiff’s conclusory argument does not explain why the ALJ’s reliance on
the testimony that his attorney elicited from Dr. Terlep amounts to denying him the
opportunity to address inconsistencies in the record, or “hiding the ball” in any
other way. Whatever other superficial differences exist between Lashley and this
case, Lashley provides a useful contrast that illustrates why the Magistrate Judge
found that the ALJ’s failure to cross-examine Dr. Terlep did not make the hearing
less than “full and fair.” The Court perceives no error in the Magistrate Judge’s
18

reliance on Lashley. The Court will therefore overrule Plaintiff’s ninth Objection.
CONCLUSION
For all of the reasons stated above, the Court hereby:
- OVERRULES Plaintiff’s Objections (ECF No. 25);
- ADOPTS the Report and Recommendation of Magistrate Judge Patricia T.
Morris (ECF No. 24) as this Court’s findings and conclusions of law;
- DENIES Plaintiff’s Motion for Summary Judgment (ECF No. 17);
- GRANTS Defendant’s Motion for Summary Judgment (ECF No. 22); and
- AFFIRMS the decision of the Commissioner of Social Security.
IT IS SO ORDERED.
s/Paul D. Borman
Paul D. Borman
United States District Judge
Dated: September 11, 2017
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 11, 2017.
s/D. Tofil
Deborah Tofil, Case Manager

19