Ramsey v. Social Security

Filing 27

OPINION and ORDER Accepting and Adopting 23 REPORT AND RECOMMENDATION; Granting 14 MOTION for Summary Judgment; and Denying 13 MOTION for Summary Judgment - Signed by District Judge Nancy G. Edmunds. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOYCE RAMSEY,
Case No. 17-13713
Plaintiff,
v.

Honorable Nancy G. Edmunds

NANCY BERRYHILL, Commissioner of
Social Security
Defendant.
/

ORDER ACCEPTING AND ADOPTING THE MAGISTRATE JUDGE’S
FEBRUARY 25, 2019 REPORT AND RECOMMENDATION [23]
Pending before the Court is the Magistrate Judge’s February 25, 2019 Report and
Recommendation. (ECF No. 23.) The Magistrate Judge recommends that the Court deny
Plaintiff’s motion for summary judgment, grant Defendant’s motion for summary
judgment, and affirm the findings of the Commissioner of Social Security. Plaintiff raises
two objections to the Magistrate Judge’s Report and Recommendation. (ECF No. 24.)
Defendant opposes Plaintiff’s objections. (ECF No. 26.) The Court has conducted a de
novo review of Plaintiff’s objections.

For the reasons set forth below, the Court

OVERRULES Plaintiff’s objections, ACCEPTS and ADOPTS the Magistrate Judge’s
Report and Recommendation, and GRANTS Defendant’s motion for summary judgment,
DENIES Plaintiff’s Motion for Summary Judgment, and AFFIRMS the decision of the
Commissioner of Social Security.
I.

Standard of Review

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This Court performs a de novo review of those portions of the Magistrate Judge's
Report and Recommendation to which Plaintiff has objected. Fed. R. Civ. P. 72(b); 28
U.S.C. § 636(b). The Court need not and does not perform a de novo review of the
report's unobjected-to findings. Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88
L.Ed.2d 435 (1985).

Moreover, an objection that “does nothing more than state a

disagreement with a magistrate’s suggested resolution, or simply summarizes what has
been presented before, is not an ‘objection’ as that term is used in this context.” Aldrich
v. Bock, 327 F. Supp. 2d. 743, 747 (E.D. Mich. 2004). Indeed, the purpose of an objection
to a report and recommendation is to provide the Court “with the opportunity to consider
the specific contentions of the parties and to correct any errors immediately.” Id. (quoting
United States v. Walters, 638 F.2d 947, 949–50 (6th Cir.1981)).
II.

Analysis
A. Plaintiff’s Appointments Clause Challenge
In supplemental briefing before the Magistrate Judge, Plaintiff argued that her case

should be remanded because the presiding ALJ was not appointed in accordance with
the United States Constitution. (See ECF Nos. 16, 17.) This argument stems from the
Supreme Court’s opinion in Lucia v. S.E.C., 138 S. Ct. 2044, 2055, 201 L. Ed. 2d 464
(2018) (opinion entered June 21, 2018), which holds that ALJs of the Securities and
Exchange Commission are “officers of the United States” within the meaning of the
Appointments Clause who must be appointed by the President, a court of law, or
department head. In Lucia, the Supreme Court found that the plaintiff raised a timely
challenge to the constitutionality of the ALJ’s appointment while the case was at the
administrative level and was therefore entitled to a remand for a hearing by a properly

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appointed ALJ. Id. (“‘[O]ne who makes a timely challenge to the constitutional validity of
the appointment of an officer who adjudicates his case’ is entitled to relief.”).
Relying on Lucia and the Sixth Circuit’s related decision in Jones Brothers v. Sec'y
of Labor, 898 F.3d 669 (6th Cir. 2018), Plaintiff argued to the Magistrate Judge that: (1)
ALJs in the Social Security Administration are similarly subject to the Appointments
Clause; (2) the ALJ in her administrative proceeding was not properly appointed; and
therefore (3) her case should be remanded so that her claim can proceed before a
properly appointed ALJ. Plaintiff’s opening brief, which was submitted to the Magistrate
Judge on February 28, 2018, did not raise the Appointments Clause issue. (See Plaintiff’s
Motion for Summary Judgment, ECF No. 13.) Plaintiff also did not question, note, or
challenge the ALJ’s authority during the administrative proceedings.
The Magistrate Judge found that Plaintiff forfeited and waived the Appointments
Clause issue by failing to raise it during her administrative proceedings and recommends
the Court deny Plaintiff’s request for remand. The Magistrate Judge did not, however,
address whether Lucia expressly applies to Social Security ALJs, whether Plaintiff met
her burden to demonstrate that the ALJ in her proceeding was not properly appointed, or
whether Plaintiff waived the argument by raising it for the first time in a supplemental brief
submitted several months after she filed her motion for summary judgment.
Plaintiff objects to the Magistrate Judge’s recommendation that Plaintiff forfeited
and waived her Appointments Clause challenge. Plaintiff contends that the Magistrate
Judge’s analysis conflicts with two recent report and recommendations from the Eastern
District of Michigan and a recent decision from the Middle District of Pennsylvania
addressing this very issue. Plaintiff argues that these three cases reflect a “trend” among

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the courts in finding that social security claimants are not required to raise Appointments
Clause challenges during their administrative proceedings. Plaintiff further argues that it
was not possible for her to raise the Appointments Clause challenge during her
administrative proceedings because Lucia was decided almost two years after her
hearing before the ALJ. Citing Jonas Brothers, Plaintiff asserts that her failure to raise
the constitutional issue at the administrative level should be excused, and urges this Court
to remand her claims.
Plaintiff’s objection is overruled.

The Magistrate Judge’s recommendation

followed the decisions of the overwhelming majority of courts in this circuit and around
the country who have addressed this exact issue and reached the same conclusion. See,
e.g., Page v. Comm'r of Soc. Sec., 344 F. Supp. 3d 902, 905 (E.D. Mich. 2018); Gothard
v. Comm'r of Soc. Sec., No. 1:17-CV-13638, 2018 WL 7254254, at *15 (E.D. Mich. Oct.
10, 2018), report and recommendation adopted, No. 1:17-CV-13638, 2019 WL 396785
(E.D. Mich. Jan. 31, 2019); Foster v. Comm’r of Soc. Sec., No. 1:18-CV-478, 2019 WL
1324008, at *4 (W.D. Mich. Mar. 25, 2019) (report and recommendation pending); Pugh
v. Comm'r of Soc. Sec., No. 1:18-CV-78, 2018 WL 7572831, at *1 (W.D. Mich. Nov. 8,
2018); Willis v. Comm'r of Soc. Sec., No. 1:18-CV-158, 2018 WL 6381066, at *3 (S.D.
Ohio Dec. 6, 2018); Garrison v. Berryhill, No. 17-302, 2018 WL 4924554, at *2 (W.D.N.C.
Oct. 10, 2018); Salmeron v. Berryhill, No. 17-3927, 2018 WL 4998107, at *3 n. 5 (C.D.
Cal. Oct. 15, 2018); Davidson v. Comm'r of Soc. Sec., No. 16-102, 2018 WL 4680327, at
*2 (M.D. Tenn. Sept. 28, 2018); Stearns v. Berryhill, No. 17-2031, 2018 WL 4380984, at
*4–5 (N.D. Iowa Sept. 14, 2018). As one court from this district recently observed, “nearly
every court to address the [Appointments Clause] issue in the context of the Social

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Security Administration (“SSA”) has summarily denied the claim without analysis, citing a
claimant’s forfeiture by failing to first raise the claim before the ALJ.” Gothard v. Comm'r
of Soc. Sec., 2019 WL 396785, at *3 (E.D. Mich. Jan. 31, 2019).
The Court is not persuaded by Plaintiff’s selected authorities. As an initial matter,
Plaintiff mischaracterizes the magistrate judge’s report and recommendation in Shoops
v. Comm’r of Soc. Sec., No. 18-10444, ECF No. 31 (E.D. Mich. Feb. 14, 2019). The
magistrate judge in Shoops expressly did not reach a conclusion as to whether a claimant
waives her appointment clause challenge by failing to raise the issue during the
administrative proceedings. Id. Instead, the magistrate judge recommends rejecting the
plaintiff’s Appointments Clause argument because: (1) the plaintiff failed to develop the
record as to whether the ALJ was not properly appointed; and (2) the plaintiff waived the
issue by not presenting it in her opening brief before the magistrate judge. See id.
Shoops, therefore, provides no support to Plaintiff’s argument that courts are departing
from the majority view on this issue. And the Court declines to adopt the reasoning of the
magistrate judge in Fortin v. Comm'r of Soc. Sec., No. CV 18-10187, 2019 WL 421071,
at *4 (E.D. Mich. Feb. 1, 2019). See also Hutchins v. Berryhill, No. 18-10182, 2019 WL
1353955, at *3 (E.D. Mich. Mar. 26, 2019) (granting the Commissioner’s objection to the
magistrate judge’s recommendation and holding that the plaintiff forfeited his
Appointments Clause argument by failing to raise it during the administrative
proceedings).
Plaintiff failed to make an argument or even note a split of authority pertaining to
the appointment of the ALJ at any point during her administrative proceedings. Plaintiff
failed to do so even though the split in authority on the Appointments Clause issue was

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recognized while Plaintiff’s claim was pending before the Appeals Council. See Page,
344 F. Supp. 3d at 905 (finding that the plaintiff failed to raise the Appointments Clause
issue where split in authority on appointments of ALJs was acknowledged in December
2016, which was prior to the plaintiff’s application of benefits being considered by the
Appeals Council). The Court therefore accepts the analysis of the Magistrate Judge and
the majority of courts addressing this issue, and finds that Plaintiff forfeited and waived
her Appointments Clause challenge because she failed to present it at the administrative
level.
B. Plaintiff’s Treating Physician
Plaintiff objects to the Magistrate Judge’s recommendation that the ALJ properly
discounted the opinion of Dr. Kovan, Plaintiff’s treating physician. Plaintiff contends that
Dr. Kovan’s opinions were consistent with his treatment records and that his opinion was
entitled to controlling weight. Plaintiff argues that ALJ committed reversible error by failing
to properly assess Dr. Kovan’s opinion using all of the factors listed in 20 C.F.R. §
404.1527, and the Magistrate Judge erred by concluding that any error by the ALJ was
harmless.
Defendant responds that the Magistrate Judge correctly found that even if the ALJ
did not discuss all of the factors listed 20 C.F.R. § 404.1527, the ALJ satisfied the
regulations by providing the reasons for not giving controlling weight to Dr. Kovan’s
opinions and an explanation of those reasons.

Defendant contends that there is

substantial evidence in the record supporting the ALJ’s finding that Dr. Kovan’s opinions
were inconsistent with other evidence in the record. Defendant also argues that Plaintiff’s
objection should be deemed waived because Plaintiff’s objection is essentially a rehash

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of the argument made to the Magistrate Judge on this same issue. Having reviewed the
record this issue, the Court agrees with Defendant and the Magistrate Judge that the ALJ
did not commit reversible error in declining to give controlling weight to Plaintiff’s treating
physician’s opinion.
An ALJ is required to give controlling weight to a treating physician’s opinion so
long as that opinion is supported by clinical and laboratory diagnostic evidence not
inconsistent with other substantial evidence in the record. 20 C.F.R. § 404.1527(c)(2);
Biestek v. Comm'r of Soc. Sec., 880 F.3d 778, 785 (6th Cir. 2017), cert. granted sub nom.,
138 S. Ct. 2677, 201 L. Ed. 2d 1070 (2018). When the ALJ concludes that a treating
physician’s medical opinion does not deserve controlling weight, the ALJ considers the
opinion in light of the factors listed in 20 C.F.R. § 404.1527(c). See Biestek, 880 F.3d at
785. However, “the ALJ need not perform an exhaustive, step-by-step analysis of each
factor; she need only provide ‘good reasons’ for both her decision not to afford the
physician’s opinion controlling weight and for her ultimate weighing of the opinion.” Id.
Ultimately, the ALJ’s written decision must contain good reasons for the weight
given to the treating source’s opinion, and the explanation must be sufficiently specific to
make clear to any subsequent reviewers the weight given to the treating source's medical
opinion and the reasons for that weight. Francis v. Comm'r Soc. Sec. Admin., 414 F. App'x
802, 804 (6th Cir. 2011) (internal quotations omitted). The ALJ’s failure to specifically
discuss each of the factors listed in 20 C.F.R. § 404.1527(c) is harmless error so long as
the ALJ’s decision provides “the claimant and a reviewing court a clear understanding of
the reasons for the weight given a treating physician's opinion.” Id. at 805 (quoting Friend
v. Comm'r of Soc. Sec., 375 Fed.Appx. 543, 551 (6th Cir.2010) (per curiam)).

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Here, as the Magistrate Judge found, the ALJ sufficiently discussed the
inconsistencies between Dr. Kovan’s opinions and the other evidence in the record. The
ALJ attacked both the consistency and supportability of Dr. Kovan’s opinion, and provided
specific details of the medical evidence which contradicts Dr. Kovan’s opinions. To this
end, the Magistrate Judge provides a detailed summary of the medical evidence that the
ALJ found to be either inconsistent or at least partially inconsistent with Dr. Kovan’s
opinions.

In sum, the ALJ’s decision presents both good reasons and a thorough

explanation as to why Dr. Kovan’s opinions were not given controlling weight. The ALJ’s
decision therefore satisfies the procedural safeguards and any failure to specifically follow
the letter of the regulations is harmless error.
In addition, the Magistrate Judge found that the Dr. Kovan’s July 2016 opinion was
patently deficient. This finding means that the ALJ’s alleged failure to discuss all of the
“good reasons” for not giving to controlling weight to Dr. Kovan’s opinion is harmless error.
See Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 547 (6th Cir. 2004) (“If a treating
source's opinion is so patently deficient that the Commissioner could not possibly credit
it, a failure to observe § 1527(d)(2) may not warrant reversal.”); see, e.g., Phillips v.
Comm'r of Soc. Sec., 972 F. Supp. 2d 1001, 1008 (N.D. Ohio 2013) (finding that treating
source’s opinion was so patently deficient that it could not be credited). Plaintiff failed to
object to the Magistrate Judge’s finding that Dr. Kovan’s July 2016 opinion is patently
deficient, and has therefore waived her objection on this issue. But even if Plaintiff did
raise an objection to this portion of the Report and Recommendation, the Court agrees
with the Magistrate Judge’s analysis. As a result, the ALJ’s purported failure to discuss

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all of the “good reasons” for giving Dr. Kovan’s opinion less than controlling weight is
harmless error.
III.

Conclusion

For the above-stated reasons, and for the reasons provided in the Magistrate
Judge’s Report and Recommendation, the Court OVERRULES Plaintiff’s objections,
ACCEPTS and ADOPTS the Magistrate Judge’s Report and Recommendation, DENIES
Plaintiff’s Motion for Summary Judgment; GRANTS Defendant’s Motion for Summary
Judgment, and AFFIRMS the decision of the Commissioner.
SO ORDERED.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge

Dated: March 28, 2019
I hereby certify that a copy of the foregoing document was served upon counsel of record
on March 28, 2019, by electronic and/or ordinary mail.

s/Lisa Bartlett
Case Manager

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