Albright v. Social Security
Filing
18
OPINION AND ORDER Adopting 15 Report and Recommendation DENYING 9 Motion for Summary Judgment filed by Ian Albright, GRANTING 12 Motion for Summary Judgment filed by Commissioner Social Security Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
IAN ALBRIGHT,
Plaintiff,
Case No. 16-14100
v.
Paul D. Borman
United States District Judge
COMMISSIONER OF
SOCIAL SECURITY,
David R. Grand
United States Magistrate Judge
Defendant.
______________________/
OPINION AND ORDER (1) ADOPTING THE MAGISTRATE JUDGE’S
FEBRUARY 7, 2018 REPORT AND RECOMMENDATION (ECF NO. 15),
(2) OVERRULING PLAINTIFF’S OBJECTIONS (ECF NO. 16),
(3) GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT (ECF NO. 12),
(4) DENYING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT (ECF NO. 9); and
(5) AFFIRMING THE FINDINGS OF THE COMMISSIONER
On February 7, 2018, Magistrate Judge David R. Grand issued a Report and
Recommendation to Deny Plaintiff’s Motion for Summary Judgment and Grant
Defendant’s Motion for Summary Judgment in this action for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). (ECF No. 15, Report
and Recommendation.) On February 20, 2018, Plaintiff filed Objections to the Report
and Recommendation. (ECF No. 16.) On March 6, 2018, Defendant filed a Response
1
to Plaintiff’s Objections. (ECF No. 17.) Plaintiff filed a reply. (ECF No. 14.)
Having conducted a de novo review, pursuant to 28 U.S.C. § 636(b)(1), of those
parts of the Magistrate Judge’s Report and Recommendation to which specific
objections have been filed, the Court OVERRULES Plaintiff’s Objections, ADOPTS
the Magistrate Judge’s Report and Recommendation, GRANTS Defendant’s Motion
for Summary Judgment (ECF No. 12), DENIES Plaintiff’s Motion for Summary
Judgment (ECF No. 9), and AFFIRMS the findings of the Commissioner.
I.
BACKGROUND
Plaintiff Ian Albright filed applications for DIB and SSI on July 29, 2011,
alleging a disability onset date of December 28, 2009. (ECF No. 6, Transcript (“Tr.”)
87-88, 287-303.) The Michigan Disability Determination Service denied these
applications and Albright requested a hearing which was held before Administrative
Law Judge Oksana Xenos on March 14, 2013. On April 23, 2013, ALJ Xenos issued
a written decision finding Albright not disabled. Albright sought review of that
decision by the Appeals Council, which vacated ALJ Xenos’s decision and remanded
for further administrative proceedings. (Tr. 119-144.) The Appeals Council gave
specific direction as to matters that were required to be addressed on remand. (Tr.
2
142-44.)1
The second administrative hearing was held on November 12, 2014, before ALJ
Kendra Kleber. Albright and Vocational Expert Donald L. Hecker, PhD, testified at
the November 12, 2014 hearing. (Tr. 39-86.) On January 5, 2015, ALJ Kleber issued
a 31-page written decision, finding Albright not disabled. (Tr. 8-38.) ALJ Kleber
acknowledged at the outset of her decision the specific directives she had received
from the Appeals Council and summarized the new evidence that she had received and
incorporated into the record. (Tr. 11.) On September 29, 2016, the Appeals Council
denied Albright’s request for review of ALJ Kleber’s January 5, 2015 decision. (Tr.
1
The Appeals Council directed the Administrative Law Judge on remand to:
•
Consider and weigh all third party statements, particularly
Albright’s parents’ statements, consistent with SSR 06-03;
•
Further evaluate the opinion evidence, specifically the opinion
offered by treating source Mark Deskovitz, PhD, ABPP;
•
Ensure that the administrative record is complete and that all
medical records pertaining to the claimant are marked and made
a part of the record;
•
Give further consideration to the claimant’s maximum residual
functional capacity (“RFC”) and provide rationale with specific
references to evidence of record;
•
Obtain evidence from a vocational expert (“VE”) to clarify the
effect of the assessed limitations on the claimant’s occupational
base; and
•
Offer the claimant an opportunity for a hearing, address the
evidence submitted, take any further action required to complete
the administrative record, and issue a decision.
(Tr. 142-44.)
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1-5.) Albright timely filed for judicial review of that final decision, and this Court
referred the matter to Magistrate Judge David Grand for a Report and
Recommendation, which was issued on February 7, 2018. (ECF No. 15, “R&R”.)
Now before the Court are Plaintiff’s Objections to the Magistrate Judge’s R&R. (ECF
No. 16, Objections.) Throughout each of these filings and appeals, Albright has been
represented by his present attorney in these proceedings, Gerald Skupin.
On November 12, 2014, the date of the second administrative hearing before
ALJ Kleber, Plaintiff was 26 years old. (Tr. 47.) Plaintiff alleges the following
“physical or mental conditions (including emotional or learning problems) that limit
[his] ability to work:” depression, anxiety, psychosis, possible head injury, ADHD,
ADD, suicidal thoughts, generalized anxiety disorder, racing thoughts, voices in his
head, insomnia, PTSD, back trouble, sleep apnea, ticks, symptoms of Tourettes,
possible schizophrenia. (Tr. 341.)
Plaintiff graduated from high school in 2007 and did not attend special
education classes. (Tr. 342.) In his September 19, 2011 Work History Report,
Plaintiff reported intermittent jobs as a child care provider, server/busboy/cleaner,
chemical specialist for the United States Army, and a standby delivery helper for
United Parcel Service. (Tr. 360-68.) Plaintiff’s work for the United States Army was
at Fort Bragg in North Carolina, where he became “hazmat certified” and performed
4
the duties of a chemical specialist. (Tr. 55.) ALJ Kleber noted this work history but
found that none of his earning records during this time frame demonstrated work that
constituted substantial gainful activity. (Tr. 14.)
Plaintiff testified at the November 12, 2014 hearing that he had worked full
time from June 2012 through September 2012, as a sales representative for Verizon,
selling phones and setting them up for customers. Plaintiff liked his job at Verizon
“more than any other job he had,” that is “until [he] was fired.” (Tr. 14, 49-51.)
Plaintiff’s full-time work for Verizon did not include any accommodation for his
alleged impairments. (Tr. 14.) Plaintiff testified that he believes he was terminated
by Verizon because he did not enjoy reaching out to customers in follow-up because
he was more focused on selling. He also admits that he took money from the cash
register at Verizon, although he claims to have “replaced it the same day.” (Tr. 5153.)
ALJ Kleber found that Plaintiff’s work for Verizon was not “an unsuccessful
work attempt” because the record did not support a finding that he stopped working
at Verizon because of his conditions. Thus, ALJ Kleber concluded that Plaintiff had
engaged in substantial gainful activity from August 2012 through September 2012,
but that he did not engage in substantial gainful activity for a continuous twelvemonth period beginning on October 1, 2012. (Tr. 14.) ALJ Kleber thoroughly
5
evaluated the severity of Plaintiff’s impairments and the impact of Plaintiff’s
impairments on his residual functional capacity (“RFC”) to perform available work
and ultimately concluded that Plaintiff was not disabled. (Tr. 14-31.) Plaintiff’s
medical records are discussed below as relevant to his Objections.
II.
STANDARDS OF REVIEW
A.
De Novo Review of Objections Under 28 U.S.C. § 636(b)(1)
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 objection” 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 in part, the findings
or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). 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. (quotation marks and citation 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). “‘[B]are disagreement with the conclusions reached
6
by the Magistrate Judge, without any effort to identify any specific errors in the
Magistrate Judge’s analysis that, if corrected, might warrant a different outcome, is
tantamount to an outright failure to lodge objections to the R & R.’” Arroyo v.
Comm’r of Soc. Sec., No. 14-cv-14358, 2016 WL 424939, at *3 (E.D. Mich. Feb. 4,
2016) (quoting Depweg v. Comm'r of Soc. Sec., No. 14-11705, 2015 WL 5014361,
at *1 (E.D. Mich. Aug. 24, 2015) (citing Howard v. Secretary of Health & Human
Services, 932 F.2d 505, 509 (6th Cir. 1991)).
B.
The Substantial Evidence Standard
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) and Cutlip v. Sec’y 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 (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
7
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 SSA
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 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 also Cruse v. Comm’r of Soc. Sec.,
502 F.3d 532, 542 (6th Cir. 2007) (noting 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’”) (quoting Walters v. Comm'r
of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997)).
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“Judicial review of the Secretary’s findings must be based on the record as a
whole.” Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001)).
Therefore, “[b]oth the court of appeals and the district court may look to any evidence
in the record, regardless of whether it has been cited by the [ALJ].” Id. (citing Walker
v. Sec’y of Health and Human Services, 884 F.2d 241, 245 (6th Cir. 1989)). See also
Conley v. Comm’r of Soc. Sec., No. 13-cv-13072, 2015 WL 404229, at *10 (E.D.
Mich. Jan. 29, 2015) (“The court must examine the administrative record as a whole,
and may look to any evidence in the record, regardless of whether it has been cited by
the ALJ.”).
“[A]n ALJ can consider all the evidence without directly addressing in his
written decision every piece of evidence submitted by a party. Nor must an ALJ make
explicit credibility findings as to each bit of conflicting testimony, so long as his
factual findings as a whole show that he implicitly resolved such conflicts.” Kornecky
v. Comm’r of Soc. Sec., 167 F. App’x 496, 508 (6th Cir. 2006) (quoting Loral Defense
Systems-Akron v. N.L.R.B., 200 F.3d 436, 453 (6th Cir. 1999)).
III.
ANALYSIS
As an overarching failing, Plaintiff’s Objections are largely just restatements
of arguments (in some instances virtually verbatim from Plaintiff’s summary
judgment briefs) that were rejected by the Magistrate Judge that do not direct the
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Court to the source of the error allegedly committed by the Magistrate Judge. 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, 932 F.2d at 509. Such general disagreements with the conclusions reached
by the Magistrate Judge do not merit review by this Court, as noted infra where
appropriate. Nonetheless, the Court addresses Plaintiff’s arguments, none of which
demonstrate that the Magistrate Judge erred in his analysis or conclusions.
A.
Objection One: The ALJ’s Consideration of Albright’s
Father’s Statements.
The Appeals Council remanded on this issue because it appeared that the first
ALJ, ALJ Xenos, discounted Albright’s father’s statements purely based on “family
loyalties,” which is contrary to the directive in SSR 06-03p, 2006 WL 2329939 (Aug.
9, 2006). SSR 06-03p provides as follows, in relevant part, with regard to statements
from non-medical sources (including family members):
Information from these “other sources” cannot establish the existence of
a medically determinable impairment. Instead, there must be evidence
from an “acceptable medical source” for this purpose. However,
information from such “other sources” may be based on special
knowledge of the individual and may provide insight into the severity of
the impairment(s) and how it affects the individual's ability to function.
*
*
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*
In considering evidence from “non-medical sources” who have not seen
the individual in a professional capacity in connection with their
impairments, such as spouses, parents, friends, and neighbors, it would
be appropriate to consider such factors as the nature and extent of the
relationship, whether the evidence is consistent with other evidence, and
any other factors that tend to support or refute the evidence.
*
*
*
Although there is a distinction between what an adjudicator must
consider and what the adjudicator must explain in the disability
determination or decision, the adjudicator generally should explain the
weight given to opinions from these “other sources,” or otherwise ensure
that the discussion of the evidence in the determination or decision
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.
2016 WL 2329939, at *2, *6.
On remand, ALJ Kleber did not repeat the error of ALJ Xenos that was
identified by the Appeals Council and did not simply dismiss the father’s statements
as discredited due to family loyalties. To the contrary, ALJ Kleber did exactly what
SSR 06-03p requires – she evaluated the father’s statements in light of other record
evidence and explained why she found his statements in conflict with other record
evidence. The Magistrate Judge did not err in concluding that the ALJ properly
considered Plaintiff’s father’s statements. The ALJ explained that she found the
father’s statements to be in conflict with Plaintiff’s own statements about his ability
to function.
(Tr. 28.) The Magistrate Judge satisfied SSR 06-03p by clearly
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explaining the “weight given to [the father’s] opinions,” which allowed the Magistrate
Judge and this Court “to follow the [her] reasoning . . . .”2
Also included within this Objection is Plaintiff’s criticism of the ALJ’s
treatment of Dr. Bertram’s opinion. (Objs. 2-3, PgID 1668-69). The Magistrate Judge
ruled that Plaintiff’s arguments regarding Dr. Bertram were waived as a result of
Plaintiff’s failure to provide any analysis of the ALJ’s alleged mishandling of Dr.
Bertram’s opinion. The Magistrate Judge also rejected the meager rationale Plaintiff
endeavored to offer in his Reply. (R&R 26-27, 27 n. 5, PgID 1658-59.) In his
Objections, Plaintiff points to no specific error on the Magistrate Judge’s part but
argues that the ALJ erroneously assumed that Dr. Bertram based his October 24, 2014
opinion regarding Plaintiff’s impairments on information that Dr. Bertram obtained
from Plaintiff’s father. This argument lacks merit and there was no error here. ALJ
2
Unsurprisingly Plaintiff does not appeal that portion of the Magistrate Judge’s Order
rejecting Plaintiff’s argument regarding the ALJ’s decision not to hear additional
testimony from Plaintiff’s father at the administrative hearing. Counsel’s statements
in his summary judgment brief that the ALJ refused to take testimony from Plaintiff’s
father is a gross misrepresentation of what occurred. In fact, it was Plaintiff’s
counsel’s (Mr. Skupin’s) representations at the administrative hearing that Plaintiff’s
father really had “nothing to add” to his previous written statements other than to
expand upon issues regarding Plaintiff’s ability to “control[] money and mak[e] wise
decisions,” that reasonably prompted ALJ Kleber to decline to hear any additional
cumulative testimony from the father. (Tr. 84-85.) The ALJ did not deny Plaintiff’s
father the opportunity to testify and Plaintiff’s counsel offered no objection to the
ALJ’s decision not to hear additional testimony from Plaintiff’s father, who reportedly
had “nothing to add.”
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Kleber observed that Dr. Bertram was not a treating physician, evaluated Plaintiff only
once, and she noted that at that visit Dr. Bertram relied principally on Plaintiff’s
father’s reporting of his son’s symptoms. (Tr. 27.) Specifically, Dr. Bertram’s notes
state as follows: “His father was present for this exam and able to more eloquently
describe his son’s symptoms and history, with the Veteran agreeing and speaking only
a few times . . . .” (Tr. 1372.) The ALJ also noted that Dr. Bertram offered his
October 24, 2014 opinion with reference to a VA standard that does not apply in
DIB/SSI proceedings. (Tr. 27.) The ALJ relied on substantial evidence in giving Dr.
Bertram’s October 24, 2014 opinion little weight.
Plaintiff’s First Objection is OVERRULED.
B.
Objection Two: The ALJ’s Analysis of the VA’s Records.
Plaintiff fails to direct the Court’s attention to any specific error that the
Magistrate Judge committed in his analysis of the ALJ’s consideration of the VA
disability ratings, instead simply reiterating his summary judgment arguments without
once mentioning any particular error on the Magistrate Judge’s part. Such general
objections do not merit review. In any event, the argument lacks merit.
Magistrate Judge Grand correctly declined to rely on the standard proffered by
the Plaintiff from a Fifth Circuit opinion, Olson v. Schweiker, 663 F.2d 593 (5th Cir.
1981), that would give a VA disability rating “great weight.” (Pl.’s Objs. 3, PgID
13
1669.) As the Magistrate Judge expressly stated in his Report, Olson “is at odds with
the Sixth Circuit precedent” that is binding on this Court. (Report 13-14, n. 3, PgID
1645-46.) As Magistrate Judge Grand correctly pointed out in admonishing Plaintiff
for relying on Olson, the Sixth Circuit “ha[s] not specified the weight [a disability
rating from the VA] should carry when determining social security disability
eligibility.” (Report 13, PgID 1645.) This Court rejects Plaintiff’s continued
suggestion that Olson’s “great weight” standard should be applied here.
The Magistrate Judge correctly concluded that ALJ Kleber did not err in her
analysis of the VA records. The ALJ specifically noted the February 14, 2013 VA
50% disability determination and also noted that the VA subsequently found Plaintiff
“incompetent to handle his own financial affairs and appointed a fiduciary.” (Tr. 25,
citing Ex. 24E, pp. 6, 9.) While the ALJ did not specifically mention a November 5,
2014 letter from the VA noting that Plaintiff’s combined service-connected disability
was 100% (Tr. 512, Ex. 24E p. 4), it is clear that she did consult Exhibit 24E and she
was not required to address every page of every exhibit that she reviewed. Kornecky,
167 F. App’x at 508. The ALJ cogently explained that she considered the VA’s
disability determination but gave it only partial weight based upon other record
evidence that belied a finding of total disability. Specifically, the ALJ noted that in
2012, Plaintiff did in fact engage in full-time work for Verizon, without missing a
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single day and without any type of accommodation for his impairments. (Tr. 25, 4951, 73.) The ALJ also gave the VA disability ratings only partial weight because the
record evidence clearly demonstrated that when Plaintiff was compliant with his
medication regimen, and when he was not abusing his prescription medications, his
impairments were substantially improved. (Tr. 25, 76.) The Magistrate Judge
correctly observed that the Sixth Circuit has not determined any specific weight that
should be given VA disability ratings. Ritchie v. Comm’r of Soc. Sec., 540 F. App’x
508, 510-11 (6th Cir. 2013) (holding that ALJ was not bound by VA 100% disability
rating, which “is only one factor to be considered in making a social security disability
finding”). As the Sixth Circuit observed in Ritchie, and as the Magistrate Judge noted
here, the Social Security regulations, while requiring that such ratings be considered,
also expressly state that decisions by other governmental agencies are not binding on
the Commissioner. See Ritchie, 540 F. App’x at 510 (citing 20 C.F.R. § 404.1505);
R&R at 14, citing 20 C.F.R. § 404.1504, 416.904, SSR 06-03p. The Magistrate Judge
correctly concluded that ALJ Kleber did not err in her consideration of the VA
disability ratings.
Plaintiff also suggests in his Second Objection (again pointing to no specific
error on the Magistrate Judge’s part) that his employment with Verizon “should be
classified as an unsuccessful work attempt.” (Objs. 4, PgID 1670.) The ALJ
15
expressly rejected this argument, citing substantial evidence to support her conclusion
that the record did not support such a finding. (Tr. 14.) Plaintiff testified that he
worked full-time at Verizon for over a two-month period without accommodation of
any type, that he had no trouble meeting the 40 hours required, and never missed a day
of work. Plaintiff testified that he enjoyed the Verizon job more than any other job
he had ever had, and admitted that he was caught taking money from the cash register.
Plaintiff explained to the ALJ that he thought he was terminated by Verizon because
he was not keeping up with his “customer outreach” duties, but when asked by the
ALJ why he wasn’t fully performing those duties, Plaintiff explained that he didn’t
think the “outreach” tasks were as important as other things he was doing at work. (Tr.
52.) And when asked by the ALJ why he was only seeking part-time work at the time
of the administrative hearing, when the full-time work at Verizon had been so
successful, Plaintiff responded that he was only seeking part-time work because he
wanted to go back to school and “get [his] grades back up to where they should be.”
(Tr. 73.) The ALJ’s conclusion that the record did not show that Plaintiff was forced
to stop working at Verizon because of his conditions, and that Plaintiff’s work at
Verizon was not an unsuccessful work attempt, was supported by substantial evidence.
Plaintiff’s Second Objection is OVERRULED.
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C.
Objection Three: The ALJ’s Application of the Treating
Physician Rule.
“A medical opinion from a treating source must be given controlling weight if
it ‘is well-supported by medically acceptable clinical and laboratory diagnostic
techniques,’ and ‘is not inconsistent with other substantial evidence in [the] case
record.’” Spicer v. Comm’r of Soc. Sec., 651 F. App’x 491, 492-93 (6th Cir. 2016)
(quoting Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (quoting
20 C.F.R. § 404.1527(c)(2)). The “treating source rule” is a “mandatory procedural
protection” that requires an ALJ to give “good reasons” for disregarding the opinion
of a treating physician. Sawdy v. Comm’r of Soc. Sec., 436 F. App’x 551, 554-55 (6th
Cir. 2011). The social security regulations set forth a list of factors to be considered
by the ALJ in deciding to give a treating source non-controlling weight, but an ALJ
need not necessarily address each of these factors. See, e.g., Tess v. Comm’r of Soc.
Sec., No. 14-cv-14877, 2016 WL 454446, at *6 (E.D. Mich. Feb. 5, 2016) (“There is
no per se rule that requires an articulation of each of the six regulatory factors listed
in 20 C.F.R. § 404.1527(c)(2)-(6).”) (citing Norris v. Comm’r, No. 11-11974, 2012
WL 3584664, at *5 (E.D. Mich. Aug. 20, 2012) (citing Tilley v. Comm’r, 394 F.
App’x. 216, 222 (6th Cir. 2010)). The ALJ’s explanation of his or basis for
discounting a treating source “must be sufficiently specific to make clear to any
17
subsequent reviewers the weight the adjudicator gave to the treating source’s medical
opinion and the reasons for that weight.” Wilson v. Comm’r of Soc. Sec., 378 F.3d
541, 544 (6th Cir. 2004) (quoting Soc. Sec. Rul. 96-2, 1996 WL 374188, at *5
(1996)). If the ALJ has “has met the goal of § 1527(d)(2)—the provision of the
procedural safeguard of reasons,” the failure to address each of § 1527(d)(2)’s factors
may be “harmless error.” Id. at 547. See also Gross v. Comm’r of Soc. Sec., 247 F.
Supp. 3d 824, 827 (E.D. Mich. 2017) (“[T]here is no per se rule that requires a written
articulation of each of the six regulatory or “Wilson factors” listed in 20 C.F.R. §§
404.1527(c)(2)–(6), 416.927(c)(2)–(6). Tilley v. Comm'r of Soc. Sec., 394 Fed. Appx.
216, 222 (6th Cir. 2010). In other words, the regulations do not require ‘an exhaustive
factor-by-factor analysis.’ Francis v. Comm'r of Soc. Sec., 414 Fed. Appx. 802,
804–805 (6th Cir. 2011) (citing § 404.1527(d)(2))). “‘An administrative law judge
may give more weight to the opinions of examining or consultative sources where the
treating physician’s opinion is not well-supported by the objective medical records.’”
Spicer, 651 F. App’x at 493 (quoting Dyer v. Soc. Sec. Admin., 568 F. App’x 422, 428
(6th Cir. 2014)).
Plaintiff objects to the Magistrate Judge’s finding that substantial evidence
supported the ALJ’s decision for the weight she gave to Dr. Deskovitz’s February 20,
2013 opinion. Plaintiff’s objection appears to be in part that Magistrate Judge Grand
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discussed additional record evidence that ALJ Kleber did not specifically mention.
(Objs. 5, PgID 1671-72.) This is not error. “Both the court of appeals and the district
court may look to any evidence in the record, regardless of whether it has been cited
by the [ALJ].” Heston, 245 F.3d at 535; Conley, 2015 WL 404229, at *10 (“The court
must examine the administrative record as a whole, and may look to any evidence in
the record, regardless of whether it has been cited by the ALJ.”).
The remainder of Plaintiff’s Third Objection regarding Dr. Deskovitz fails once
again to point to specific errors committed by the Magistrate Judge, merely restating
arguments Plaintiff made in his summary judgment brief. Indeed, there is no
reference to the Magistrate Judge or his review at all until the fourth paragraph of the
Objection, which merely argues (as discussed supra) that Magistrate Judge Grand did
a more thorough job of reviewing Dr. Deskovitz’s opinions than the ALJ had done.
Plaintiff’s Third Objection does not merit de novo review and in any event his
argument lacks merit, as the Magistrate Judge correctly concluded after a thorough
review of the ALJ’s decision and the record evidence.
The ALJ expressly acknowledged the directive from the Appeals Council to
consider the opinion of treating source Deskovitz, PhD. (Tr. 11.) And ALJ Kleber
did just that, citing to extensive record evidence, including Dr. Deskovitz own
treatment notes, in support of her decision to give Dr. Deskovitz’s February 20, 2013
19
opinion, that was at odds with that evidence, little weight. (Tr. 20-22, 26.) The
Magistrate Judge thoroughly and correctly reviewed all of this evidence, and cited to
additional supporting evidence, and Plaintiff has failed to direct this Court to any
particular error in the Magistrate Judge’s reasoning or legal conclusions.
Plaintiff also seemingly objects to the Magistrate Judge’s evaluation of the
ALJ’s decision to give Dr. Weiss’s opinion little weight. (Objs. 6-7, PgID 1672-73.)
Plaintiff points to no error on the Magistrate Judge’s part and merely reasserts the
same one-line conclusion that Magistrate Judge Grand correctly concluded was
perfunctory and resulted in waiver, i.e. that Dr. Weiss’s opinion that Plaintiff is
disabled “is consistent with the record as a whole.” Making a general reference to the
names of other examiners and the VA disability ratings in support of this barebones
argument in his Objections does nothing to save it. The argument is perfunctory and
undeveloped and the Magistrate Judge correctly ruled that it was waived.
Plaintiff’s Third Objection is OVERRULED.
C.
Objection Four: The ALJ’s Analysis of the VE’s Testimony.
Plaintiff alleges that the Magistrate Judge erred in concluding that the ALJ’s
failure to ask the VE at the hearing whether there was an inconsistency between the
VE’s testimony and the occupational information supplied by the DOT required a
remand. (Objs. 7, PgID 1673.) Plaintiff argues that the ALJ did not follow the
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directive of the Appeals Council, which directed the ALJ on remand to:
Obtain evidence from a vocational expert to clarify the effect of the
assessed limitations on the claimant’s occupational base (Social Security
Ruling 83-14). The hypothetical questions should reflect the specific
capacity/limitations established by the record as a whole. The
Administrative Law Judge will ask the vocational expert to identify
examples of appropriate jobs and to state the incidence of such jobs in
the national economy (20 CFR 404.1566 and 416.966). Further, before
relying on the vocational expert evidence the Administrative Law Judge
will identify and resolve any conflicts between the occupational evidence
provided by the vocational expert and information in the Dictionary of
Occupational Titles and its companion publication, the Selected
Characteristics of Occupations (Social Security Ruling 00-4p).
(Tr. 143.)
ALJ Kleber complied with this directive in full. First she “obtained evidence”
from a VE to clarify the effect of the limitations that the ALJ found credible based on
the record as a whole. (Tr. 78-79, 80-81.) Next ALJ Kleber “asked” the vocational
expert at the hearing to identify appropriate jobs and to state the incidence of those
jobs in the economy. (Tr. 81-83.) Then, before relying on the VE’s evidence, ALJ
Kleber expressly determined that there were no conflicts with the DOT or the SCO:
“Pursuant to SSR 00-4p, I have determined that the vocational expert’s testimony is
consistent with the information contained in the Dictionary of Occupational Titles and
its companion volume, Selected Characteristics of Occupations.” (Tr. 30.) Although
the ALJ did not ask the VE at the hearing to confirm that there was no conflict, the
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Appeals Council remand didn’t expressly require that the ALJ “ask” the VE to
confirm the absence of a conflict – it tasked the ALJ with “identify[ing] and
resolv[ing] any conflicts between the occupational evidence provided by the
vocational expert and information in the Dictionary of Occupational Titles and its
companion publication, the Selected Characteristics of Occupations” before relying
on the VE’s evidence. (Tr. 143.) And the ALJ performed that task, concluded that
the VE’s testimony was consistent with the information contained in those sources,
and reported this in her written decision.
However, as the Magistrate Judge noted, the Sixth Circuit has stated that “the
Social Security Administration has imposed an affirmative duty on ALJs to ask the
VE if the evidence that he or she has provided ‘conflicts with [the]information
provided in the DOT.’” (R&R 31, PgID 1663) (quoting Lindsley v. Comm’r of Soc.
Sec., 560 F.3d 601, 603 (6th Cir. 2009)). But the goal of requiring the ALJ to ask the
question of the VE at the hearing is to “insure that such actual or apparent conflicts
are addressed.” Lindsley, 560 F.3d at 603. That goal was met here because the ALJ
reported in her written decision that she had determined that no such conflict existed.
(Tr. 30.)
In any event, as the Magistrate Judge noted, the failure to specifically inquire
of the VE at the hearing regarding a conflict with the DOT is harmless error where the
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claimant fails to point to a conflict. (R&R 32, PgID 1664.) Plaintiff’s attorney raised
no objection at the hearing regarding a potential conflict with the DOT and still in his
Objections fails to identify a conflict between the VE’s testimony and the DOT.
Indeed, Plaintiff’s Objections do not even identify or discuss any of the jobs identified
by the VE. Rather than identify a conflict between the occupational evidence
provided by the VE and the DOT, Plaintiff continues to disagree with the ALJ’s
determination of Plaintiff’s functional impairments based on the record as a whole.
“‘It is well established that an ALJ may pose hypothetical questions to a vocational
expert and is required to incorporate only those limitations accepted as credible by the
finder of fact.’” Spicer, 651 F. App’x at 494 (quoting Hardaway v. Sec’y of Health &
Human Servs., 823 F.2d 922, 927-28 (6th Cir. 1987)).
Plaintiff’s Fourth Objection is OVERRULED.
IV.
CONCLUSION
For the foregoing reasons, the Court:
(1) OVERRULES the Plaintiff’s Objections (ECF No. 16);
(2) ADOPTS the Magistrate Judge’s February 7, 2018 Report and
Recommendation (ECF No. 15);
(3) GRANTS the Commissioner’s Motion for Summary Judgment (ECF No.
12);
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(4) DENIES the Plaintiff’s Motion for Summary Judgment (ECF No. 9); and
(5) AFFIRMS the findings of the Commissioner.
IT IS SO ORDERED.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: September 24, 2018
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 24, 2018.
s/Deborah Tofil
Case Manager
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