Holben v. Commissioner of Social Security

Filing 13

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 10 ; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SHERI HOLBEN,
Plaintiff,

Case No: 1:10-cv-567

v

HON. JANET T. NEFF

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
/
OPINION AND ORDER
Plaintiff seeks judicial review of a decision of the Commissioner of the Social Security
Administration to discontinue her Disability Insurance Benefits (DIB). 42 U.S.C. § 405(g). The
matter was referred to the Magistrate Judge, who issued a Report and Recommendation,
recommending that this Court affirm the decision of the Administrative Law Judge (ALJ) rendered
on behalf of the Commissioner. The matter is presently before the Court on Plaintiff’s objection to
the Report and Recommendation. Defendant filed a response to the objection. In accordance with
28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b)(3), the Court has performed de novo consideration
of the portion of the Report and Recommendation to which Plaintiff objects. The Court denies the
objection and enters this Opinion and Order.
Plaintiff presents one objection: her argument that this Court should reject the Magistrate
Judge’s recommendation to affirm the ALJ because the ALJ failed to properly analyze the opinion
of her treating physician, neurologist Timothy K. Thoits, M.D. In this regard, Plaintiff highlights
one of the ALJ’s reasons for finding Dr. Thoit’s opinion “not controlling,” to wit: the inconsistency
between his opinion and his treatment notes (Objs., Dkt 11 at 3). Relying on Johnson v. Comm’r

of Social Security, ___ F.3d ___, 2011 WL 2652192 (6th Cir. July 8, 2011), Plaintiff argues that the
disconnect between Dr. Thoits’ treatment notes and opinion “clearly is not a sufficient reason to
dismiss the opinion of a treating specialist, especially when he has testified twice as to the basis of
his opinion that Plaintiff could not perform substantial gainful activity (SGA)” (id. at 3-4).
Defendant responds that the ALJ was not obligated to accept Dr. Thoits’ disability
determination (Resp., Dkt 12 at 1). Defendant points out that the determination of disability is
ultimately the prerogative of the Commissioner, not a treating physician (id., citing Warner v.
Comm’r of Social Security, 375 F.3d 387, 390 (6th Cir. 2004)). Defendant opines that the “complete
reversal” of position between Dr. Thoits’ treatment notes and his contrary statements to Plaintiff’s
lawyer about Plaintiff’s condition “strongly suggests that he was attempting to aid Plaintiff’s
disability claim when he gave a statement to Plaintiff’s counsel” (id. at 3).
The applicable regulation, 20 C.F.R. § 404.1527(d)(2), provides that “[g]enerally, we give
more weight to opinions from your treating sources, since these sources are likely to be the medical
professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and
may bring a unique perspective to the medical evidence that cannot be obtained from the objective
medical findings alone or from reports of individual examinations, such as consultative examinations
or brief hospitalizations.” The regulation further provides that “[i]f we find that a treating source’s
opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence in your case record, we will give it controlling weight.” 20 C.F.R.
§ 404.1527(d)(2) (emphasis added). Last, the regulation provides that when the ALJ does not give

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the treating source’s opinion controlling weight, the ALJ will apply certain factors delineated therein
and give “good reasons” for the weight given to a treating source’s opinion. Id.
The procedural “good reason” rule serves both to ensure adequacy of review and to permit
the claimant to understand the disposition of her case. Kalmbach v. Comm’r of Social Sec., 409 F.
App’x 852, 860 (6th Cir. 2011). The requirement of reason-giving lets claimants understand the
disposition of their cases, particularly in situations where a claimant knows that her physician has
deemed her disabled and therefore “might be especially bewildered when told by an administrative
bureaucracy that she is not, unless some reason for the agency’s decision is supplied.” Wilson v.
Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (quoting Snell v. Apfel, 177 F.3d 128, 134
(2d Cir. 1999)).
In Johnson, 2011 WL 2652192, at *5-6, the facts of which Plaintiff contends “precisely
parallel” her case, the Sixth Circuit recited these procedural requirements and decided that the record
before it contained enough objective medical evidence to support the conclusions reached by the
treating physician. Here, however, the Court agrees with Defendant that the Magistrate Judge
properly determined that the facts at bar do not compel the same result. As summarized by the
Magistrate Judge, the ALJ found that Dr. Thoits’ opinion was contradicted by not only his
contemporaneous treatment notes, which indicated that Plaintiff’s headaches were well controlled
with medication and other conservative measures, but also contradicted by Plaintiff’s reported
activities and the medical evidence, which similarly revealed that Plaintiff’s headaches were now
well-controlled (R & R, Dkt 10 at 10-11). The Magistrate Judge properly concluded that, in sum,
the ALJ articulated good reasons, supported by substantial evidence in the record, for affording less
than controlling weight to Dr. Thoits’ opinion. Plaintiff’s objection reveals no error by the

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Magistrate Judge requiring a disposition other than the affirmance recommended by the Magistrate
Judge.
Therefore:
IT IS HEREBY ORDERED that the Objections (Dkt 11) are DENIED, the Report and
Recommendation of the Magistrate Judge (Dkt 10) is APPROVED and ADOPTED as the Opinion
of the Court, and the decision of the Commissioner of Social Security is AFFIRMED.
A Judgment will be entered consistent with this Opinion and Order.

Dated: September 16 , 2011

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

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