Gustafson v. Commissioner of Social Security

Filing 18

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 15 ; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BRADLEY MICHAEL GUSTAFSON,
Plaintiff,

Case No: 1:12-cv-49

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 denying his claim for disability insurance benefits (DIB) for the reason that
Plaintiff’s disability ended as of February 1, 2007. 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 three objections to the Report and Recommendation. Defendant filed
a response to the objections. 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 portions of the Report and Recommendation
to which Plaintiff objects. The Court denies the objections and enters this Opinion and Order.
Plaintiff presented two issues for this Court to review: (1) whether the ALJ committed legal
error “in failing to properly consider” listing 12.05(C) (“Mental Retardation”); and (2) whether there
is substantial evidence “support[ing] the conclusion that the claimant’s impairments have improved
to the point where he is now capable of substantial gainful activity” (Pl. Brief [Dkt 9] at 5). In his

Report and Recommendation, the Magistrate Judge determined that the ALJ considered the
appropriate listing where, among other things, listing 12.05(C) requires a valid verbal, performance,
or full scale IQ of 60 through 70 and the ALJ found that all of Plaintiff’s IQ scores during the period
at issue were higher than 70 (R&R, Dkt 15 at 7-8). The Magistrate Judge also determined that
Plaintiff’s arguments about the credibility of his testimony and his father’s testimony and the weight
of the opinions of a consultative examiner and a social worker, were not arguments that provided
a basis for disturbing the Commissioner’s decision (R&R, Dkt 15 at 8-14).
In his first objection to the Report and Recommendation, Plaintiff argues that “the
Commissioner and the Magistrate have erred in failing to adequately consider the concept of res
adjudicata [sic]” (Dkt 16 at 2). Plaintiff opines that “[t]he Commissioner[’]s burden requires more
than simply a new ALJ who now chooses not to find the claimant disabled” (id. at 6). Plaintiff
asserts that the ALJ is mandated to compare the evidence at the time of the previous decision, and
not merely discuss alleged improvement from a worsened point after the time of the previous
decision (id. at 11).
In considering Plaintiff’s first issue presented—the proper listing, the Magistrate Judge
decided that the ALJ’s finding that Plaintiff did not meet or equal the requirements of listing
12.05(C) since February 1, 2007 is a finding supported by substantial evidence (R&R, Dkt 15 at 8);
however, the Magistrate Judge did not discuss the principles of res judicata in the Report and
Recommendation because Plaintiff did not present the issue for review. The issue is therefore
procedurally waived because parties may not raise new arguments or issues at the district court stage
that were not presented to the magistrate judge. Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535
(6th Cir. 2001) (citing Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000)).

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Even if the issue were not procedurally waived, Plaintiff’s argument lacks merit. The
principles of res judicata do not bind a subsequent ALJ to the findings of a previous ALJ where the
record contains evidence of improvement in a claimant’s condition. See generally Drummond v.
Comm’r of Soc. Sec., 126 F.3d 837, 841-42 (6th Cir. 1997). Here, the ALJ decided that new and
material evidence showed that medical improvement occurred as of February 1, 2007 (AR 25-27).
Plaintiff’s “objection” to the Report and Recommendation demonstrates only his disagreement with
the ALJ’s determination that his condition improved, a determination for which there is substantial
evidence. See Buxton v. Halter, 246 F.3d 762, 772-73 (6th Cir. 2001) (“The findings of the
Commissioner are not subject to reversal merely because there exists in the record substantial
evidence to support a different conclusion. . . . This is so because there is a ‘zone of choice’ within
which the Commissioner can act without fear of court interference.”).
Plaintiff’s second objection concerns “the failure of the ALJ to make specific findings
relative to the credibility of the witnesses,” an omission that Plaintiff opines constitutes error
requiring reversal (Objs., Dkt 16 at 6-7). Plaintiff argues that the Magistrate Judge did not address
the ALJ’s “legal error of failing to adequately consider and address the [credibility] issue.” (id. at
7). Plaintiff’s argument lacks merit. The Magistrate Judge excerpted the relevant portion of the
ALJ’s decision assessing credibility, indicating his agreement with the Appeals Council that the
ALJ’s opinion was “sufficiently specific to make clear the reason for the Administrative Law
Judge’s finding on credibility” (R&R, Dkt 15 at 9-10). Plaintiff’s argument does not identify any
factual or legal error in the Magistrate Judge’s review.
The remainder of Plaintiff’s second objection merely restates, nearly verbatim, the arguments
previously presented to the Magistrate Judge (Objs., Dkt 16 at 7-9). The Court declines to give these

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arguments duplicative consideration, an endeavor, which, as Defendant appropriately observes in
its response, would defeat the purpose and efficiency of consideration by the magistrate judge in the
first instance. See Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).
In his third objection to the Report and Recommendation,1 Plaintiff argues that in concluding
that Dr. Douglas Bentley’s report and test results were internally inconsistent, the ALJ either “went
outside the record to conclude it, or did so with no supportive evidence” (Objs., Dkt 16 at 9, 11).
The Magistrate Judge rejected Plaintiff’s latter argument, that the ALJ improperly weighed this
psychologist’s opinion (R&R, Dkt 15 at 11); however, the Magistrate Judge did not discuss the
administrative notice aspect to Plaintiff’s argument in the Report and Recommendation because
Plaintiff did not present the issue for review, merely discussing administrative notice in a footnote
to his brief (Pl. Brief, Dkt 9 at 12 n.2). Therefore, this issue is also procedurally waived. See
Heston, 245 F.3d at 535; Murr, 200 F.3d at 902 n.1.
In sum, Plaintiff’s objections reveal no error by the Magistrate Judge requiring a disposition
other than the affirmance recommended by the Magistrate Judge. Accordingly:
IT IS HEREBY ORDERED that the Objections (Dkt 16) are DENIED, the Report and
Recommendation of the Magistrate Judge (Dkt 15) 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: March 1 , 2013

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

1

Plaintiff misnumbers his third objection with the Roman numeral II (Dkt 16 at 9).
4