Hight v. Commissioner of Social Security

Filing 19

ORDER Overruling 17 Objections, Adopting 16 Report and Recommendation, Denying Plaintiff's 12 Motion for Summary Judgment, and Granting Defendant's 14 Motion for Summary Judgment. Signed by District Judge Stephen J. Murphy, III. (DPar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DEMARIO G. HIGHT,
Case No. 2:18-cv-11817

Plaintiff,

HONORABLE STEPHEN J. MURPHY, III

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

/

ORDER OVERRULING OBJECTIONS [17],
ADOPTING REPORT AND RECOMMENDATION [16],
DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [12],
AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [14]
The Commissioner of the Social Security Administration ("SSA") denied the
application of DeMario G. Hight ("Hight") for supplemental security income and
disability insurance benefits in a decision issued by an Administrative Law Judge
("ALJ"). ECF 9-2, PgID 38–48. After the SSA Appeals Council declined to review the
ruling, Hight appealed. ECF 1. The Court referred the matter to Magistrate Judge
Patricia T. Morris and the parties filed cross-motions for summary judgment. ECF 3,
12, 14. The magistrate judge issued a Report and Recommendation ("Report")
advising the Court to deny Hight's motion and grant the Commissioner's motion. ECF
16. Hight filed timely objections to the Report. ECF 17. After examining the record
and considering Hight's objections de novo, the Court concludes that his arguments
lack merit. Accordingly, the Court will adopt the Report's findings, deny Hight's

motion for summary judgment, grant the Commissioner's motion for summary
judgment, and dismiss the complaint.
BACKGROUND
The Report properly details the events giving rise to Hight's action against the
Commissioner. ECF 16, PgID 672–73, 675–83. The Court will adopt that portion of
the Report. Critically, Hight's objections all relate to "whether the ALJ should have
considered a medical source opinion from Dr. Andrew Thomas, his treating physician,
that was submitted" after the hearing but before the ALJ issued his decision. Id. at
679. Hight's counsel had written a letter to the ALJ a week before the administrative
hearing stating that she was "still awaiting records/evidence from Dr. Andrew
Thomas." Id.
LEGAL STANDARD
Civil Rule 72(b) governs the review of a magistrate judge's report. A district
court's standard of review depends upon whether a party files objections. The Court
need not undertake any review of portions of a Report to which no party has objected.
Thomas v. Arn, 474 U.S. 140, 149–50 (1985). De novo review is required, however, if
the parties "serve and file specific written objections to the proposed findings and
recommendations." Fed. R. Civ. P. 72(b)(2). In conducting a de novo review, "[t]he
district judge may accept, reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate judge with instructions."
Fed. R. Civ. P. 72(b)(3).

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Individuals who receive an adverse final decision from the Commissioner of
Social Security may appeal the decision to a federal district court. 42 U.S.C. § 405(g).
When reviewing a case under § 405(g), the Court "must affirm the Commissioner's
conclusions absent a determination that the Commissioner has failed to apply the
correct legal standards or has made findings of fact unsupported by substantial
evidence in the record." Longworth v. Comm'r Soc. Sec. Admin., 402 F.3d 591, 595
(6th Cir. 2005) (citation omitted). Substantial evidence consists of "more than a
scintilla of evidence but less than a preponderance" such that a "reasonable mind
might accept [the evidence] as adequate to support a conclusion." Rogers v. Comm'r
of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quotations omitted). An ALJ may
consider the entire body of evidence without directly addressing each piece in his
decision. Kornecky v. Comm'r of Soc. Sec., 167 F. App'x 496, 508 (6th Cir. 2006). "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." Id. (citation omitted).
DISCUSSION
Hight raises three objections. The Court will first provide a brief overview of
the legal framework governing the submission of evidence for social security
proceedings. Then, the Court will address each of Hight's objections in turn.
I.

Legal Framework
During a social security proceeding before an ALJ, the parties submit evidence

for review. "Each party must make every effort to ensure that the administrative law

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judge receives all of the evidence and must inform [the Commissioner] about or
submit any written evidence . . . no later than 5 business days before the date of the
scheduled hearing"—the so-called "5-day Rule." 20 C.F.R. § 416.1435(a). If a claimant
does not comply with the 5-day Rule, "the administrative law judge may decline to
consider or obtain the evidence" unless an exception applies. Id.
Two exceptions excusing the failure to timely submit evidence are relevant
here. First, the ALJ will excuse a tardy submission if the claimant "actively and
diligently sought evidence from a source and the evidence was not received or was
received

less

than

5

business

days

prior

to

the

hearing."

20

C.F.R.

§ 416.1435(b)(3)(iv). Second, the ALJ will excuse failure to comply with the 5-day Rule
if the Commissioner's actions misled the claimant ("misleading-action exception"). 20
C.F.R. § 416.1435(b)(1).
II.

Objection 1
First, Hight objects that the Report erred in finding that "Plaintiff did not

properly inform the ALJ" about a letter from Dr. Thomas, who treated Plaintiff. ECF
17, PgID 709. One week before the hearing, Hight sent a letter to the ALJ and advised
that he was "still awaiting records/evidence from Dr. Andrew Thomas, [his] current
primary care provider." ECF 9-6, PgID 274. Then, during the hearing, Hight
reiterated that he was waiting for records from Dr. Thomas. ECF 9-2, PgID 84–85.
Shortly after the hearing, Hight "submitted medical records from Dr. Thomas." ECF
12, PgID 629. Then, three months later, Hight submitted Dr. Thomas's statement
(which was created and produced after the hearing). See id. at 631.

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The ALJ wrote that the claimant "informed [her] about additional written
evidence" within the 5-day Rule. ECF 9-2, PgID 41; ECF 9-6, PgID 274 (Hight's
counsel sent the letter on July 11, 2017—seven days before the hearing began on July
18, 2017). Thus, the ALJ admitted "some, but not all, of the additional evidence." ECF
9-2, PgID 41. She admitted the evidence submitted shortly after the hearing but
excluded Dr. Thomas's statement because it was "submitted several months after the
hearing" and was extremely untimely. Id.
Under the 5-day Rule, a claimant "must inform [the ALJ] about . . . any written
evidence." 20 C.F.R. § 416.1435(a) (emphasis added). The dispute here involves the
definition of "inform," namely how much specificity a claimant must provide to have
adequately informed the ALJ. ECF 16, PgID 691 ("Plaintiff argues for a broad
interpretation of 'inform'" but the Commissioner "seeks to impose a narrower
interpretation."); ECF 17, PgID 709–10; ECF 18, PgID 716–19. The plain definition
of "inform" means to "'impart knowledge of some particular fact, occurrence, [or]
situation' concerning the evidence." ECF 16, PgID 695 (citing Oxford English
Dictionary (online ed.)). To satisfy the 5-day Rule, therefore, "a claimant must impart
some knowledge about the particular facts of the written evidence—even such basic
information as that the evidence consists of medical opinions or treatment records."
Id.
The Report properly found that merely telling the ALJ that potential evidence
exists in a broad catch-all phrase, such as "records/evidence," does not impart the
necessary knowledge about the evidence, and certainly did not provide sufficient

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information to indicate that future consultations with Dr. Thomas would occur that
could potentially produce additional evidence that would be submitted. Id. at 696–97.
Additionally, common sense dictates that after the initial set of reports from
Dr. Thomas was submitted shortly after the hearing, a reasonable person would
believe that the "records/evidence" that Hight had informed the ALJ of had been
submitted and the record could be closed. If Hight knew of more "records/evidence" to
come, he should have informed the ALJ that more still would be submitted.
Hight, therefore, did not satisfy the requirements of § 416.1435(a) because he
failed to properly inform the ALJ about Dr. Thomas's opinion at least five days before
the hearing. As such, the submission of Dr. Thomas's opinion was untimely, and the
ALJ was correct in excluding it. The Court will therefore overrule Hight's first
objection.
Moreover, the letter from Dr. Thomas was created as a result of a consultation
that occurred after the conclusion of the hearing. See ECF 12, PgID 631. Under §
416.1435(b), a post-hearing procedure must qualify as an "unavoidable circumstance"
to be admitted. See Rivard v. Comm'r of Soc. Sec., No. 2:17-cv-12665, 2019 WL
659014, at *15 (E.D. Mich. Jan. 11, 2019), report and recommendation adopted, No.
2:17-cv-12665, 2019 WL 659006 (E.D. Mich. Jan. 30, 2019). The requirement would
not be necessary if § 416.1435(a) automatically allowed a claimant to submit medical
records created after a hearing. The letter from Dr. Thomas was written after the
hearing was adjourned, and the Report properly concluded that Hight failed to

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explain any "unavoidable consequence" that prevented him from obtaining the
medical opinion sooner. ECF 16, PgID 697.
III.

Objection 2
Second, Hight contends that the Report failed "to take into account Plaintiff's

inability to speak" to members of Dr. Thomas's office. ECF 17, PgID 710. Hight does
not explicitly identify an error in the Report but asks the Court to consider the
additional documentation. See id. at 711.
Hight is incorrect. The Report does in fact consider Hight's inability to speak
with members of Dr. Thomas's office. ECF 16, PgID 697. The Report explicitly
mentions the fact that Hight claims that "Dr. Thomas 'was nearly impossible to reach'
by phone, despite repeated effort." Id. (citing ECF 12, PgID 638). After considering
Hight's claim, the Report goes on to explain why it was not sufficient to satisfy the
exception under § 416.1435(b)(3). Id. at 698. The Report properly concludes that
Hight's claim that Dr. Thomas "was nearly impossible to reach" was contradicted by
the fact that Hight had consistent, in-person consultations with Dr. Thomas before
and throughout the time period during which Hight claims that he was unable to
reach Dr. Thomas's office by phone. Id.
Furthermore, to the extent Hight asks the Court to consider the additional
documentation, his request is merely a rehashing of arguments he already presented
in his motion for summary judgment, which were thoroughly addressed and properly
rejected in the Report. See Bentley v. Colvin, No. 16-11314, 2017 WL 3768941, at *2
(E.D. Mich. Aug. 31, 2017) (finding that the plaintiff's "challenge [was] not a proper

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objection to the Report and Recommendation, as required by Fed. R. Civ. P. 72(b),
because it merely rehashe[d] [the plaintiff's] arguments.") (citing Davis v. Caruso,
No. 07-10115, 2008 WL 540818, at *2 (E.D. Mich. Feb. 25, 2008)). The Court will
therefore overrule Hight's second objection.
IV.

Objection 3
Third, Hight argues that the Report misapplied the standard for the

misleading-action exception. ECF 17, PgID 712. Particularly, Hight argues that the
ALJ's misleading statements made during the hearing excuse his untimely
submission of additional evidence. Id.
The misleading-action exception applies when a party "misse[s] the deadline
. . . because: (1) [the Commissioner's] actions misled [the party]." 20 C.F.R. §
416.1435(b) (emphasis added). As the magistrate judge rightly concluded, "the ALJ's
post-deadline comments . . . did not cause [Hight's] earlier failure to timely submit
the evidence." Id. The misleading-action exception therefore does not apply to Hight's
case. And Hight merely objects to the Report's alternative argument. The Court will
therefore overrule Hight's third objection.
CONCLUSION
The Court has carefully reviewed the parties' motions, the Report, and Hight's
objections. The Court finds Hight's objections unconvincing and agrees with the
Report's recommendation to grant the Commissioner's motion for summary judgment
and deny Hight's motion for summary judgment.

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ORDER
WHEREFORE, it is hereby ORDERED that Hight's Objections [17] are
OVERRULED.
IT IS FURTHER ORDERED that the magistrate judge's Report and
Recommendation [16] is ADOPTED.
IT IS FURTHER ORDERED that Hight's Motion for Summary Judgment
[12] is DENIED.
IT IS FURTHER ORDERED that the Commissioner's Motion for Summary
Judgment [14] is GRANTED.
IT IS FURTHER ORDERED that this case is DISMISSED WITH
PREJUDICE.
SO ORDERED.
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: August 21, 2019
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on August 21, 2019, by electronic and/or ordinary mail.
s/David P. Parker
Case Manager

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