Parker v. Social Security

Filing 18

OPINION AND ORDER OVERRULING PLAINTIFFS OBJECTIONS AND ADOPTING MAGISTRATE JUDGES REPORT AND RECOMMENDATION denying 11 Motion for Summary Judgment filed by David A. Parker and granting 14 Motion for Summary Judgment filed by Commissioner of Social Security Signed by District Judge Marianne O. Battani. (KDoa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DAVID A. PARKER,
Plaintiff,
Case No. 17-12307
v.
Hon. Marianne O. Battani
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_____________________________________/
OPINION AND ORDER OVERRULING PLAINTIFF’S OBJECTIONS
AND ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
I.

INTRODUCTION
Before the Court are objections filed by Plaintiff David A. Parker (Dkt. 16) to

Magistrate Judge Anthony P. Patti’s August 17, 2018 Report and Recommendation (“R
& R”) (Dkt. 15). In the R & R, the Magistrate Judge recommends that the Court deny
Plaintiff’s motion for summary judgment (Dkt. 11), grant the Defendant Commissioner of
Social Security’s motion for summary judgment (Dkt. 14), and affirm the challenged
decision of the Defendant Commissioner. For the reasons discussed below, the Court
OVERRULES Plaintiff’s objections and ADOPTS the Magistrate Judge’s R & R in its
entirety.

II.

STATEMENT OF FACTS
Neither party has objected to the Magistrate Judge’s statement of the

background facts of this case regarding Plaintiff’s claim for supplemental security
income (“SSI”) benefits, his medical and treatment history, and his testimony at the
administrative hearing. Accordingly, the Court adopts these unchallenged portions of
the R & R.
III.

STANDARD OF REVIEW
A district court must conduct a de novo review of any portion of a magistrate

judge’s R & R to which a party objects. 28 U.S.C. § 636(b)(1). The 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). The requirement of de novo review “is a
statutory recognition that Article III of the United States Constitution mandates that the
judicial power of the United States be vested in judges with life tenure.” United States v.
Shami, 754 F.2d 670, 672 (6th Cir. 1985). Accordingly, Congress enacted 28 U.S.C. §
636(b)(1) to “insure[ ] that the district judge would be the final arbiter” of matters referred
to a magistrate judge. Flournoy v. Marshall, 842 F.2d 875, 878 (6th Cir. 1988).
The Court must affirm the decision of the Defendant Commissioner so long as “it
is supported by substantial evidence and was made pursuant to proper legal
standards.” Rogers v. Commissioner of Social Security, 486 F.3d 234, 241 (6th Cir.
2007). “Substantial evidence is defined as 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, 486 F.3d at 241 (internal quotation
marks and citation omitted). If the Commissioner’s decision is supported by substantial
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evidence, “it must be affirmed even if the reviewing court would decide the matter
differently, and even if substantial evidence also supports the opposite conclusion.”
Cutlip v. Secretary of Health & Human Services, 25 F.3d 284, 286 (6th Cir. 1994)
(citations omitted).
When determining whether the Defendant Commissioner’s factual findings are
supported by substantial evidence, the Court confines its examination to the
administrative record considered as a whole. Wyatt v. Secretary of Health & Human
Services, 974 F.2d 680, 683 (6th Cir. 1992) (internal quotation marks and citation
omitted). There is no requirement, however, that either the Commissioner or this Court
must discuss every piece of evidence in the record. Kornecky v. Commissioner of
Social Security, No. 04-2171, 167 F. App’x 496, 508 (6th Cir. Feb. 9, 2006). Further, in
reviewing the Defendant Commissioner’s resolution of Plaintiff’s claim for benefits, this
Court does not “try the case de novo, resolve conflicts in evidence, or decide questions
of credibility.” Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007).
IV.

ANALYSIS
Plaintiff advances three objections to the R & R. First, he takes issue with the

Magistrate Judge’s determination that he has failed to show prejudice resulting from
multiple omissions and alleged inaccuracies in the written transcript of Plaintiff’s hearing
before the Administrative Law Judge (“ALJ”). Yet, as explained in the R & R, although
Plaintiff invites the Court to presume that the testimony omitted from the hearing
transcript was “central to the case,” “pertinent” to his claim for benefits, and would have
“bolster[ed] [his] arguments” in support of this claim, (Dkt. 16, Plaintiff’s Objections at 24), he “does not fill in any of the blanks or correct any of the alleged inaccuracies” in an
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effort to show that he was prejudiced by these transcription errors, (R & R at 7). The
Magistrate Judge correctly observes that Plaintiff’s present counsel also represented
him at the administrative hearing and kept “detailed hearing notes,” (see id. (quoting
Dkt. 11, Plaintiff’s Motion for Summary Judgment, Br. in Support at 13)), but Plaintiff and
his counsel have not identified any specific testimony that was missing from the hearing
transcript and would have lent support to Plaintiff’s claims of disabling impairments.
Moreover, the Magistrate Judge points out that despite the omissions from the
transcript, the ALJ heard the testimony as it was given and considered it in arriving at
her decision. (See R & R at 8.)
As noted by the Defendant Commissioner, Plaintiff takes a different tack in his
objections to the R & R, seeking to raise a question whether the ALJ did, in fact, hear
and consider the testimony that is omitted from the hearing transcript. Plaintiff has
forfeited this challenge, however, by raising it for the first time in his objections to the R
& R. See Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000); Swain v.
Commissioner of Social Security, No. 09-3500, 379 F. App’x 512, 517-18 (6th Cir. June
7, 2010). In any event, Plaintiff offers only pure speculation that the testimony omitted
from the transcript “was evidently not considered by the ALJ.” (Plaintiff’s Objections at
3.) And even under this assumption, Plaintiff still must establish prejudice, but he
instead invites the Court to presume it. The Court is unaware of any authority for such a
presumption of prejudice, and the Social Security guideline cited by Plaintiff on this point
is inapplicable, where it is triggered by more than three omissions per page of the
hearing transcript and Plaintiff has identified thirteen omissions over the transcript’s
entirety. Finally, as for Plaintiff’s more specific complaint that the transcript omits “vital
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testimony” by the vocational expert in response to a question about the sort of reading
required to perform the identified positions, (id. at 5-6), Defendant points out that
immediately after this omitted response, the vocational expert gave thorough
descriptions of the reading requirements for each of these positions, (see Admin.
Record at 47-50). Thus, Plaintiff again has failed to show the requisite prejudice.
Next, Plaintiff reiterates his contention, first advanced in his underlying summary
judgment motion, that the ALJ erred in determining at Step 2 of her inquiry that
Plaintiff’s cognitive deficits and borderline intellectual functioning did not rise to the level
of severe impairments. As a threshold matter, however, the Magistrate Judge points
out that Plaintiff has not been diagnosed with a cognitive impairment or borderline
intellectual functioning, (see R & R at 9-10), and Plaintiff has not identified any
purported error in the Magistrate Judge’s disposition of this issue. Absent a showing of
any such error, Plaintiff’s objection lacks merit.
In any event, the Magistrate Judge goes on to explain that any such error would
be harmless, so long as “the ALJ properly considered these impairments in the
remaining steps of the sequential evaluation.” (Id. at 11.) Although Plaintiff suggests
that the ALJ’s consideration of his cognitive deficits was inadequate and resulted in a
hypothetical question to the vocational expert that did not properly incorporate these
limitations, the Magistrate Judge aptly observes that this contention is “inaccurate,”
where the ALJ (i) expressly took note of the relevant evidence in the medical record,
and (ii) gave sufficient reasons for discounting the opinion of one medical professional
and according significant weight to the opinion of another. (Id. at 11-13.) To the extent
that Plaintiff would prefer that the ALJ had allocated different weights to these opinions,
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this is a task left to the ALJ so long as she acts within the relevant legal parameters,
and Plaintiff fails to establish otherwise.
To be sure, Plaintiff advances precisely this challenge as his final objection to the
R & R, arguing that the ALJ erred in giving limited weight to the opinion of a one-time
examining psychologist, Matthew P. Dickson, Ph.D., while according significant weight
to the opinion of Jerry Csokasy, Ph.D., a state agency psychologist who did not
examine Plaintiff. As noted by Defendant, however, this challenge rests on the flawed
premise that the ALJ relied on Dr. Dickson’s lack of a treatment relationship with Plaintiff
as “the critical element in discounting [his] opinion.” (Plaintiff’s Objections at 10.) In
fact, the Magistrate Judge points out that the ALJ considered a number of factors in
determining that Dr. Dickson’s opinion was entitled to limited weight. (See R & R at 1415 (quoting Admin. Record at 18).) Plaintiff does not even acknowledge the Magistrate
Judge’s analysis of this issue, much less identify any flaws in this analysis. Accordingly,
this objection is overruled.
V. CONCLUSION
The Court has reviewed de novo the entire record and the pleadings, giving
particular attention to those portions of the record relevant to Plaintiff's objections. 28
U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b)(3). For the reasons stated above, the
Court ADOPTS the Magistrate Judge’s August 17, 2018 report and recommendation
(Dkt. 15) in its entirety, and OVERRULES Plaintiff's August 28, 2018 objections to the
report and recommendation (Dkt. 16). Accordingly, Plaintiff’s motion for summary
judgment (Dkt. 11) is DENIED, Defendant’s motion for summary judgment (Dkt. 14) is

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GRANTED, and the challenged decision of the Defendant Commissioner is AFFIRMED
pursuant to sentence four of 42 U.S.C. § 405(g).
IT IS SO ORDERED.

Date: November 6, 2018

s/Marianne O. Battani
MARIANNE O. BATTANI
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their
respective email addresses or First Class U.S. mail to the non-ECF participants on November 6, 2018.
s/ Kay Doaks
Case Manager

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