Jones v. Commissioner of Social Security

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATION 11 over objections; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, aeb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DANIEL P. JONES,
Plaintiff,

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COMMISSIONER OF SOCIAL SECURITY,
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Defendant.
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No. 1:08-cv-529
HONORABLE PAUL L. MALONEY

ORDER ADOPTING REPORT AND RECOMMENDATION OVER OBJECTIONS
Plaintiff Daniel Jones seeks review of a final decision of the Commissioner of Social
Security that Plaintiff was not entitled to disability insurance benefits. The magistrate judge issued
a report recommending the Commissioner’s decision be affirmed. (ECF No. 11.) Plaintiff Jones
filed objections. (ECF No. 12.) The Commissioner filed a response to Plaintiff’s objections. (ECF
No. 13.) For the reasons provided below, the report is ADOPTED and the Commissioner’s decision
is AFFIRMED.
STANDARD OF REVIEW
After being served with a report and recommendation issued by a magistrate judge, a party
has fourteen days to file written objections to the proposed findings and recommendations. 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see United States v. Sullivan, 431 F.3d 976, 984 (6th Cir.
2005); Howard v. Sec’y of Health and Human Servs., 932 F.2d 505, 508 (6th Cir. 1991). A district
court judge reviews de novo the portions of the R&R to which objections have been filed. 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72(b). 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) (per curiam) (holding
the district court need not provide de novo review where the objections are frivolous, conclusive or
too general because the burden is on the parties to “pinpoint those portions of the magistrate’s report

that the district court must specifically consider”); Howard, 932 F.2d at 509. The United States
Supreme Court has held that the statute does not “positively require[] some lesser review by the
district court when no objections are filed.” Thomas v. Arn, 474 U.S. 140, 150 (1985).
DISCUSSION
Plaintiff Jones expresses disagreement with three points in the report and recommendation.
A. Admission of Post-Hearing Evidence
The magistrate judge concludes the Commissioner did not err when he declined to consider
two documents from Dr. Donald Schanz, D.O. and one document from Dr. Andrew Head, M.D. The
magistrate judge concludes Plaintiff did not establish that the documents were new material and that
there was good cause for the failure to present the evidence in the prior proceeding. Plaintiff does
not object to the conclusion good cause did not exist for the failure to present the document from
Dr. Head. Plaintiff objects to the conclusion that the Commissioner erred by not considering the
documents from Dr. Schanz. Plaintiff insists he made a sufficient effort to obtain the documents
before the hearing.
Plaintiff’s objection is OVERRULED. The magistrate judge concludes Plaintiff had the
opportunity to request documents from Dr. Schanz between December 6, 2005, when Dr. Schanz
made progress notes in Plaintiff's file, and May 5, 2006, when the hearing occurred. (R&R at 8.)
Nor were attempts to secure the documents made after the hearing and before the Administrative
Law Judge (“ALJ”) issued the ruling on October 10, 2006. (Id. at 8-9.) Plaintiff insists Dr. Schanz
was unavailable at the time of the hearing due to an automobile accident. (Obj. at 1.) Plaintiff’s
objection is not supported by the record.
Furthermore, Plaintiff has not objected to the conclusion that Appeal’s Council’s denial of

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review to those documents is beyond this Court’s scope of review. (R&R at 5.) Neither has Plaintiff
objected to the conclusion that, even if good cause could be established, the documents would not
have reasonably persuaded the Commissioner to reach a different conclusion. (Id. at 9-10.)
B. The Commissioner Failed to Give Weight to the Opinions of Treating Physicians.
The magistrate judge concludes the Commissioner did not err by failing to give adequate
weight to the opinions of Dr. Probes and Dr. Schanz. Plaintiff objects.
Plaintiff’s objection is OVERRULED. Dr. Schanz’s opinions could not be considered
because the documents reflecting those opinions were never presented to the ALJ. The magistrate
judge concludes the ALJ gave full weight to Dr. Probe’s opinions, quoting the relevant portion of
the ALJ’s opinion. Plaintiff’s general objection does not undermine the magistrate judge’s sound
reasoning in light of the record.
C. Credibility Determinations
The magistrate judge addressed two credibility-related arguments raised in Plaintiff’s reply
brief, concluding the Commissioner did not concede the arguments because they were not properly
raised in Plaintiff’s initial brief. The magistrate judge also concludes Plaintiff’s credibility
arguments are meritless. Plaintiff objects.
Plaintiff’s objection is OVERRULED. As correctly explained in the report, credibility
determinations are the province of ALJ, not the court. (R&R at 15, 16.) The magistrate judge
concludes that Plaintiff failed to identify these arguments as specific errors of law or fact that require
remand or reversal. Plaintiff does not object to that particular conclusion. The magistrate judge
points out Plaintiff’s brief generally lacks any details regarding the alleged “work history” error by
the ALJ. The magistrate judge outlines Plaintiff’s work history in some detail. (R&R at 16-17.)

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Plaintiff does not point to any error in the summary of his work history. Plaintiff’s assertion that
his work history supports his credibility is simply an assertion without further explanation or
reasoning. It does not establish that the ALJ erred such that the case must be remanded or the
conclusions reversed. The single reference to Plaintiff’s demeanor in the ALJ’s opinion does not
establish that the ALJ utilized the “sit and squirm” test. As detailed in the report, the ALJ’s opinion
is replete with references to evidence establishing an absence of disabling symptoms.
CONCLUSION
Having reviewed the record, the Court finds the magistrate judge’s report factually accurate
and the reasoning sound. The report and recommendations are ADOPTED as the opinion of this
Court.

For these reasons, IT IS HEREBY ORDERED:
1.

The report and recommendation (ECF No. 11) is ADOPTED, over objections, as the opinion
of this Court.

2.

The Commissioner’s decision is AFFIRMED.

3.

Plaintiff’s request for remand to the Agency is DENIED.

Date:

May 17, 2011

/s/ Paul L. Maloney
Paul L. Maloney
Chief United States District Judge

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