Jaber v. SSA, Commissioner of

Filing 20

OPINION AND ORDER Adopting 17 Report and Recommendation GRANTING 16 Motion for Summary Judgment filed by SSA, Commissioner of DENYING 13 Motion for Summary Judgment filed by Eissa Jaber - Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EISSA JABER,
Plaintiff,

Case No. 18-cv-11166

v.

Paul D. Borman
United States District Judge

COMMISSIONER OF
SOCIAL SECURITY,

R. Steven Whalen
United States Magistrate Judge

Defendant.
______________________/
OPINION AND ORDER (1) ADOPTING MAGISTRATE JUDGE WHALEN’S
JUNE 28, 2019 REPORT AND RECOMMENDATION (ECF NO. 17),
(2) OVERRULING PLAINTIFF’S OBJECTIONS (ECF NO. 18)
(3) DENYING PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT (ECF NO. 13),
(4) GRANTING THE DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT (ECF NO. 16), AND
(5) AFFIRMING THE DECISION OF THE COMMISSIONER
On June 28, 2019, Magistrate Judge R. Steven Whalen issued a Report and
Recommendation (“Report”) to deny Plaintiff’s Motion for Summary Judgment, grant
Defendant’s Motion for Summary Judgment, and affirm the final decision of the
Commissioner to deny Plaintiff’s application for Disability Insurance Benefits. (ECF
No. 14, Report and Recommendation) (“Report”). On July 12, 2019, Plaintiff filed
Objections to the Report and Recommendation. (ECF No. 18.) Defendant filed a
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Response to Plaintiff’s Objections. (ECF No. 19.) 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,
GRANTS Defendant’s Motion for Summary Judgment (ECF No. 16), DENIES
Plaintiff’s Motion for Summary Judgment (ECF No. 13), and AFFIRMS the findings
of the Commissioner.
I.

BACKGROUND
The findings of the Administrative Law Judge (“ALJ”) and the pertinent

portions of the Administrative Record are accurately and adequately cited to in the
Report and the Court incorporates those factual recitations here. (Report at 2-10, PgID
1380-88) (citing ECF No. 7, Transcript of Social Security Proceedings passim
(hereinafter “Tr. at ___”). The record evidence will be discussed in this Opinion and
Order only as necessary to the Court’s resolution of Plaintiff’s Objections.
II.

STANDARD OF REVIEW
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.
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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
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)).
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
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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
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)).

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“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)).
“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
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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
A. Objection No. 1: “The Magistrate erred when he
found that ALJ’s decision was supported by substantial
evidence. (R&R 14-22).”
This one and one-half page general objection, which cites to the entirety of the

Analysis section of the Magistrate Judge’s Report and Recommendation and fails to
point to any specific error on the part of the Magistrate Judge, or to identify specific
record evidence in support of this Objection, or to develop any argument whatsoever
in support of this Objection, does not merit de novo review and results in a waiver of
any issue raised. Plaintiff asserts that “there is overwhelming evidence” that Plaintiff
was unable to adapt to “normal work pressures and stresses,” but fails to support this
assertion with citation to a single piece of record evidence or to identify any specific
finding or error on the Magistrate Judge’s part that if corrected might require a
different outcome. (Objs. 4, PgID 1406.) “‘[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,
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is tantamount to an outright failure to lodge objections to the R & R.’” Arroyo, 2016
WL 424939, at *3. This Objection contains nothing but general statements of the law
followed by the unsupported assertion that “[i]f Plaintiff’s symptoms and limitations
had been properly evaluated he would have been found disabled,” and the equally
unsupported conclusion that the ALJ and the Magistrate therefore erred in finding
Plaintiff not disabled. Plaintiff’s first Objection is OVERRULED based upon a
complete failure to “pinpoint” any portions of the Report or errors on the Magistrate
Judge’s part entitled to this Court’s de novo review.
B. Objection No. 2: “The Magistrate erred when he
found that the ALJ’s finding that Plaintiff could
perform light work was supported by the evidence
(R&R 17-19).”
In this Objection, Plaintiff generally challenges the Magistrate Judge’s
determination that substantial evidence supports the ALJ’s determination that Plaintiff
had the Residual Functional Capacity (“RFC”) to perform light unskilled work with
a sit/stand option. Plaintiff first asserts that Plaintiff’s mental health symptoms
preclude him from performing light work. Plaintiff objects to the Magistrate Judge’s
“minimization” of the statements of two of Plaintiff’s treating physicians that Plaintiff
was “disabled from any employment.” (Objs. 5, PgID 1407.) Fundamentally, this
objection is unfounded because it is well established, as ALJ Tobin acknowledged in
her Opinion, that an ALJ need not give “controlling weight” or even “special
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significance” to a doctor’s conclusion that a plaintiff is disabled from all work
“[b]ecause these are administrative findings that may determine whether an individual
is disabled, [and] they are reserved to the Commissioner.” Gentry v. Comm’r of Soc.
Sec., 741 F.3d 708, 727 (6th Cir. 2014) (citing 20 C.F.R. § 404.1527(d)(1)). But
more importantly, as the Magistrate Judge discussed at length, the ALJ provided
“multiple good reasons” for according little weight to Plaintiff’s treating mental health
provider’s opinions: Plaintiff’s health treatment was sporadic and conservative, with
gaps of over ten months between visits; as of September 2016, Plaintiff was reported
to have appropriate affect, thought processes, and thought content “without
distortions, suicidal ideation or angry outbursts;” Plaintiff’s treating physician’s
disability opinion failed to opine specifically on Plaintiff’s work-related abilities; and
the record reflected that Plaintiff engaged in numerous activities that undermined his
claimed mental (and physical) problems, such as making a solo 20-hour car trip to
Texas, performing indoor and outdoor household chores, engaging with his children
and attending their school functions, regularly attending his Mosque, and shopping at
crowded stores with his children without becoming anxious or overwhelmed. (Tr. at
20-22.) The ALJ further observed that the results of Plaintiff’s mental status
examinations were unsupported by academic, medical, or other objective evidence,
which tended to confirm the opinions of several consultative examiners that Plaintiff
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was exaggerating his symptoms for secondary gain. (Tr. 22.) Finally, as the
Magistrate Judge observed, the ALJ appropriately relied on an August 2015 nonexamining assessment that found only moderate psychological limitation, noting that
Plaintiff was capable of “simple, rote, repetitive tasks.” (Tr. 21.) The Magistrate
Judge correctly concluded that the ALJ appropriately gave little weight to the opinions
of Plaintiff’s mental health treater and relied on substantial record evidence in support
of her conclusions.
Plaintiff next objects to the Magistrate Judge’s conclusion that substantial
evidence supports the ALJ’s conclusions as to Plaintiff’s physical limitations. In
support of this Objection, Plaintiff cites to medical findings of a limited range of
motion of the spine, “reaching limitations,” positive bilateral straight leg raise, and
MRI results suggesting symptomatic disc bulges. Plaintiff also cites to self-reported
pain with certain activities. Plaintiff concludes that this evidence demands the
conclusion that Plaintiff could not perform light work. (Objs. 5-6, PgID 1408.) But
simply pointing to some evidence in the record that might suggest some limitations
does not undermine an ALJ’s conclusions that are adequately supported by other
substantial evidence. “[T]he Commissioner's decision cannot be overturned if
substantial evidence, or even a preponderance of the evidence, supports the claimant’s
position, so long as substantial evidence also supports the conclusion reached by the
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ALJ.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003).
Here, “there was more than enough evidence to support the ALJ's finding,” id.,
and the Magistrate Judge correctly concluded that the ALJ’s “RFC for a reduced range
of exertionally light work with a sit/stand option is well explained and generously
supported by the record.” (Report 19, PgID 1397.) The Magistrate Judge notes the
ALJ’s observations that while Plaintiff’s straight leg raise test was positive, Plaintiff
“retained 5/5 strength in the upper and lower extremities and his gait and station were
normal and unassisted.” (Tr. 18, 22.) And while a 2013 MRI demonstrated some
abnormalities in the lumbar spine, Plaintiff’s condition improved with only
conservative treatment including physical therapy and Norco, and Plaintiff did not rely
on any type of assistive device. (Tr. 18, 22.) Importantly, the last treatment records
from Plaintiff’s treating orthopedist, Dr. Radden, noted “significant improvement in
Plaintiff’s symptoms since the last visit.” (Tr. 18.) The ALJ also noted that Plaintiff’s
latest treatment records from his primary care physician in March 2016, note “no back
swelling, erythema, warmth, tenderness on palpation, muscle spasm or costovertebral
angle tenderness,” and noted “normal range of motion of all extremities without joint
or muscle tenderness.” (Tr. 19.) The ALJ also observed that Plaintiff testified at the
hearing that he “could sit and walk for unlimited amounts of time; he could lift his
children; and he could reach in all directions without difficulty.” (Tr. 18, 22.) The
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ALJ also cited the results of the Cooperative Disability Investigations Unit (“CDIU”)
Report, according to which the Plaintiff was “observed shopping, performing chores,”
including shoveling snow, mowing the lawn, lifting groceries, and “attending events
and going to the mosque,” and spending 20 hours in a car driving to Texas. (Tr. 22.)
In light of this substantial record evidence, the ALJ appropriately assigned little
weight to Plaintiff’s orthopedist’s “opinion,” which as a matter of law is entitled to no
controlling weight or even special significance, that Plaintiff was completely disabled
from his job duties and housework and a multitude of other daily activities. The
Magistrate Judge correctly observed that “Plaintiff’s claim that he is unable to perform
work consistent with the RFC due to back, shoulder, and knee problems is grossly
undermined by evidence that he was able to shovel snow, mow the lawn, lift groceries,
and did not require the use of an assistive device.” (Report 20, PgID 1398) (Emphasis
added.)
The Court finds that Magistrate Judge Whalen correctly concluded that
substantial evidence supports the ALJ’s conclusion that Plaintiff had the RFC to
perform light skilled work with a sit/stand option. Plaintiff’s second objection is
OVERRULED.

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IV.

CONCLUSION
For the foregoing reasons, Plaintiff’s Objections are OVERRULED, the

Defendant’s Motion for Summary Judgment is GRANTED, Plaintiff’s Motion for
Summary Judgment is DENIED, and the findings of the Commissioner are
AFFIRMED.
Dated: August 22, 2019

s/Paul D. Borman
Paul D. Borman
United States District Judge

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