Loesel v. Social Security

Filing 23

ORDER OVERRULING Plaintiff's 21 Objections, Adopting 20 Report and Recommendation; GRANTING 19 Motion for Summary Judgment filed by Commissioner of Social Security and DENYING, 16 Motion for Summary Judgment filed by Paul Ronald Loesel Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PAUL RONALD LOESEL,
Plaintiff,
v.
Case No. 16-13959
COMMISSIONER OF SOCIAL
SECURITY,
Defendant,
/
OPINION AND ORDER (1) OVERRULING PLAINTIFF’S OBJECTIONS;
(2) ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION;
(3) DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT;
AND (4) GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Paul Loesel appeals from Defendant Commissioner of Social Security’s
denial of his application for disability insurance benefits. Before the court are the parties’
cross motions for summary judgment. (Dkt. # 16, 19.) The case was referred to United
States Magistrate Judge Patricia T. Morris pursuant to 28 U.S.C. ' 636(b)(1)(B) and
Local Rule 72.1. Judge Morris issued a Report and Recommendation (“R&R”) on
August 31, 2017, advising this court to deny Plaintiff=s motion for summary judgment
and grant Defendant=s motion for summary judgment. Plaintiff filed objections on
September 14, 2017 and Defendant responded on September 28, 2017. Having
reviewed the record, the R&R, the objections, and Plaintiff’s response, the court
concludes that a hearing is unnecessary. See E.D. LR7.1(f)(2). For the reasons stated
below and in the well-reasoned R&R, the court will overrule Plaintiff’s objections and
adopt the R&R.

I. STANDARD
The filing of timely objections to an R&R 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, 673-74 (1980); United States v. Walters, 638 F.2d 947, 949 (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)).
In a social security case, the court “must affirm the Commissioner’s decision if it
‘is supported by substantial evidence and was made pursuant to proper legal
standards.’” Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 651 (6th Cir. 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42
U.S.C. § 405(g). When, as here, the Appeals Council declines review of a plaintiff’s
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claim, “the decision of the ALJ becomes the final decision of the [Commissioner].”
Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993).
The court’s review of the record for substantial evidence is quite deferential to the ALJ.
“Substantial evidence is more than a scintilla of evidence but less than a preponderance
and is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion,” Pittsburgh & Conneaut Dock Co. v. Dir., Office of Workers’
Comp. Programs, 473 F.3d 253, 259 (6th Cir. 2007), “even if that evidence could
support a decision the other way,” Casey, 987 F.2d at 1233. Moreover, the court bases
its review on the entire administrative record, not just what the ALJ cited. Heston v.
Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). “Even if supported by
substantial evidence, however, a decision of the Commissioner will not be upheld where
the [Social Security Administration] 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)).
II. DISCUSSION
Plaintiff raises three objections to the R&R: (1) it erroneously relied on the ALJ’s
“lack of treatment” finding; (2) it failed to credit one of the statements of the
psychological consultant; and (3) it erroneously relied on the ALJ’s incomplete analysis
of Plaintiff’s concentration abilities. (Dkt. # 21.)
After conducting a de novo review of Plaintiff’s objections, the court concludes
that they are meritless and will be overruled. Plaintiff’s objections are arguments that

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were presented to the Magistrate Judge in Plaintiff’s Motion for Summary Judgment.
The R&R correctly addresses and analyzes the issues raised by Plaintiff’s objections.
Because Plaintiff’s first objection is an argument that made in his summary
judgment briefing, the R&R has already addressed it. (Dkt. # 16, Pg. ID 420.) The R&R
explicitly notes Plaintiff’s concern regarding the weight the ALJ gave to his lack of
treatment and whether such consideration was improper given Sixth Circuit precedent,
specifically McKnight v. Sullivan, 927 F.2d 241 (6th Cir. 1990) and Strong v. Soc. Sec.
Admin., 88 F. App'x 841 (6th Cir. 2004). (See Dkt. # 20, Pg. ID 483-84.) The R&R
properly concluded that the ALJ did not err in considering Plaintiff’s lack of treatment as
a factor. Plaintiff objects to the R&R on the basis that Strong misinterpreted McKnight.
Judge Morris disagreed as this court does as well. As Defendant explains in its
response to Plaintiff’s objections, Strong is consistent with McKnight because McKnight
“did not address the question of whether the claimant had a severe impairment if his
conditions were untreated.” (Dkt. # 22, Pg. ID 501.)
Plaintiff’s second objection is an argument derived directly from his previous
filings and was addressed by both the ALJ and Judge Morris. (See Dkt. # 16, Pg. ID
419-20) (Plaintiff arguing that the ALJ failed to consider mentally-based limitations on
Plaintiff’s RFC); (Dkt. # 20, Pg. ID 481) (Judge Morris explicitly addressing and rejecting
this argument) (Dkt. # 21, Pg. ID 493) (Plaintiff rebranding the same argument as an
objection). Judge Morris properly concluded that the ALJ, did in fact, consider the
psychological consultant’s statements concerning mentally-based limitations when the
ALJ reviewed the consultant’s evaluation. (Dkt. # 20, Pg. ID 484.)

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Plaintiff’s third objection argues that the ALJ’s analysis of Plaintiff’s concentration
abilities was incomplete. In contrast, the R&R correctly concludes that the ALJ’s
determination was supported by substantial evidence. The ALJ considered “the
absence of longitudinal medical evidence corroborating” some of the psychologist’s
concentration findings. (Dkt. # 20, Pg. ID 485.) The ALJ likewise considered that the
finding of “moderately depressed” was countered by the finding that there was no
evidence that Plaintiff’s “mental impairment[s] are anything other than mild.” (Id.) The
court agrees that the ALJ’s findings on this issue are supported by substantial evidence.
Plaintiff’s objections are overruled.
III. CONCLUSION
For the reasons stated in the R&R as well as Defendant’s response to Plaintiff’s
objections, the court will adopt the findings and conclusions of the Magistrate Judge.
Accordingly, IT IS ORDERED that Plaintiff’s objections (Dkt. # 21) are
OVERRULED and the Magistrate Judge's Report and Recommendation (Dkt. # 20) is
ADOPTED and incorporated by reference.
IT FURTHER ORDERED that Plaintiff=s motion for summary judgment (Dkt. # 16)
is DENIED, and that Defendant=s motion for summary judgment (Dkt. # 19) is
GRANTED. The Commissioner’s determination is AFFIRMED.

S/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE

Dated: March 28, 2018

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I hereby certify that a copy of the foregoing document was mailed to counsel of record
and/or pro se parties on this date, March 28, 2018, by electronic and/or ordinary mail.

S/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

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