Darby v. Commissioner of Social Security Administration
Filing
22
OPINION AND ORDER Adopting 19 Report and Recommendation Denying 17 Motion for Summary Judgment filed by John Howard Darbee, Granting 18 Motion for Summary Judgment filed by Commissioner of Social Security Administration, Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN HOWARD DARBEE,
Plaintiff,
Case No. 17-cv-10776
v.
Paul D. Borman
United States District Judge
COMMISSIONER OF
SOCIAL SECURITY,
Anthony P. Patti
United States Magistrate Judge
Defendant.
______________________/
OPINION AND ORDER (1) ADOPTING THE MAGISTRATE JUDGE’S
AUGUST 13, 2018 REPORT AND RECOMMENDATION (ECF NO. 19),
(2) OVERRULING PLAINTIFF’S OBJECTIONS (ECF NO. 20)
(3) DENYING PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT (ECF NO. 17),
(4) GRANTING THE DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT (ECF NO. 18), AND
(5) AFFIRMING THE DECISION OF THE COMMISSIONER
On August 13, 2018, Magistrate Judge Anthony P. Patti issued a Report and
Recommendation to Deny Plaintiff’s Motion for Summary Judgment and Grant
Defendant’s Motion for Summary Judgment, and affirm the findings of the
Commissioner. (ECF No. 19, Report and Recommendation “Report”.) On February
21, 2018, Plaintiff filed Objections to the Report and Recommendation. (ECF No. 20.)
Defendant filed a Response to Plaintiff’s Objections. (ECF No. 21.) Having
1
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. 18), DENIES Plaintiff’s Motion for Summary Judgment (ECF
No. 17), and AFFIRMS the findings of the Commissioner.
I.
BACKGROUND
Plaintiff filed his application for Social Security Disability Insurance Benefits
(“DIB”) and Supplemental Security Income (“SSI”) on December 17, 2013. (ECF
No. 15, Administrative Record of Proceedings (“Tr.”) 260-277.)
Plaintiff’s
application was denied on March 31, 2014, and he timely sought an administrative
hearing, which occurred on February 16, 2016, before Administrative Law Judge
(“ALJ”) Brian Garves. (Tr. 187-208, 40-77.) The ALJ considered the record
evidence, as well as the testimony of the Plaintiff and vocational expert (“VE”)
Adolph Cwik at the February 16, 2016 hearing, and determined that Plaintiff was not
disabled as that term is defined under the Social Security Act, issuing his written
decision on March 10, 2016. (Tr. 15-39.) On January 11, 2017, the Appeals Council
denied Plaintiff’s request for review (Tr. 1-6), and Plaintiff timely appealed to this
Court for judicial review.
2
The matter was referred to Magistrate Judge Anthony P. Patti for a Report and
Recommendation, which was issued on August 13, 2018. Plaintiff has filed a single
Objection to the Magistrate Judge’s Report, which is now before the Court for review.
The ALJ’s findings and relevant matters from the administrative record are adequately
set forth in the Magistrate Judge’s Report and will be referenced in this Opinion and
Order as necessary to the Court’s analysis of the Plaintiff’s Objections. II. S T A
NDA
RDS
O
F
REVI
EW
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). Only
those objections that are specific are entitled to a de novo review under the statute.
3
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
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(g) 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
4
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
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
5
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)).
“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
6
Systems-Akron v. N.L.R.B., 200 F.3d 436, 453 (6th Cir. 1999)).
III.
ANALYSIS
The Plaintiff has filed a single Objection to the Report, arguing that the
Magistrate Judge erred in concluding that the ALJ adequately considered the 70%
disability rating assigned to the Plaintiff by the Veteran’s Administration (“VA”) in
reaching his conclusion that Plaintiff was not disabled under the Social Security Act.
Plaintiff served in the United States Army and received a 70% “service connected
combined evaluation” for disability connected to his service in the Gulf War. The VA
assessed the following disability ratings in reaching its 70% combined rating: 30%
disability rating for exertional dyspnea, 20% disability rating for degenerative disc
disease, 10% disability rating for left ankle condition, and 30% disability rating for
mood disorder. (Tr. 384-86.)
The ALJ expressly acknowledged in his March 10, 2016 written decision that
he had received the VA evidence assessing the 70% disability rating, but the ALJ
ultimately rejected the finding of 70% disability and “place[d] little weight upon the
opinion offered by the VA.” (Tr. 32.) As the Magistrate Judge explained in detail in
his Report, the ALJ thoroughly reviewed the medical record evidence pertaining to
each of the areas of disability assessed by the VA. The Magistrate Judge explained
that the ALJ specifically referenced and discussed in several instances Plaintiff’s VA
7
medical records (Tr. 528-644, 853-999), in reaching his decision that Plaintiff was not
disabled. The Magistrate Judge correctly concluded that the ALJ did all that was
required of him with regard to consideration of the VA disability rating.
The Sixth Circuit has not determined any specific weight that should be given
VA disability ratings, instructing only that the VA disability rating should be
“considered” by the ALJ in his review of the record evidence. 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. § 404.1504); Report at 8, PgID1115 (citing 20 C.F.R. § 404.1504,
SSR 06-03p.)
In this case, “the ALJ reviewed and discussed the same medical records that the
VA used to make its disability determination; [he] simply arrived at a different
conclusion than the VA, in part because the criteria for the SSA and the VA are
different.” Harrier v. Colvin, No. 16-cv-11456, 2017 WL 2927629, at *2 (E.D. Mich.
July 10, 2017). “[B]oth the magistrate judge and the ALJ considered the VA records
8
and the VA’s determination, yet pointed out that the standards controlling disability
determinations by the VA are not the same as under the Social Security Regulations.”
Mason v. Comm’r of Soc. Sec., No. 15-cv-14300, 2017 WL 1018148, at *1 (E.D.
Mich. March 16, 2017). “As the magistrate judge pointed out, the ALJ properly
considered the VA records and the disability rating, referenced both in his decision,
yet is not bound by the VA’s determination.” Id.
Magistrate Judge Patti correctly determined that “[t]he ALJ reviewed the record
evidence (including the VA record evidence []) and found that there was no sufficient
objective medical evidence to substantiate the severity of the symptoms and degree
of functional limitation alleged by Plaintiff.” (Report 11, PgID 1118.) The Magistrate
Judge correctly concluded that no more was required of the ALJ here. Accordingly,
the Court OVERRULES Plaintiff’s Objections.
IV.
CONCLUSION
For the foregoing reasons, it is ORDERED that:
1) Plaintiff’s Objections (ECF No. 20) are OVERRULED;
2) Magistrate Judge Patti’s August 13, 2018 Report and Recommendation (ECF
No. 19) is ADOPTED;
3) Plaintiff’s Motion for Summary Judgment (ECF No. 17) is DENIED;
4) Defendant’s Motion for Summary Judgment (ECF No. 18) is GRANTED;
and
9
5) The Findings of the Commissioner are AFFIRMED.
IT IS SO ORDERED.
s/Paul D. Borman
Paul D. Borman
United States District Judge
Dated: September 26, 2018
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?