Byers v. Commissioner of Social Security

Filing 31

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 28 ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, sdb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOSEPH BYERS,
Plaintiff,
v.

Case No. 1:13-cv-339
HON. ROBERT HOLMES BELL

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________/
OPINION AND ORDER APPROVING AND ADOPTING
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This is a social security review action filed pursuant to Section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g). The matter was referred to the Magistrate Judge, who issued a Report and
Recommendation (R&R), recommending that this Court affirm the final decision of the
Commissioner of Social Security. The matter is presently before the Court on Plaintiff’s objections
to the R&R. 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 those portions of the R&R to which objections have been made.
The Court overrules the objections and issues this Opinion and Order.
“[A] general objection to a magistrate’s report, which fails to specify the issues of contention,
does not satisfy the requirement that an objection be filed. The objections must be clear enough to
enable the district court to discern those issues that are dispositive and contentious.” Miller v. Currie,
50 F.3d 373, 380 (6th Cir. 1995). The Court may accept, reject, or modify any or all of the
Magistrate Judge’s findings or recommendations. Id.
Plaintiff objects to the Magistrate Judge’s following determinations: (1) that the

Administrative Law Judge (ALJ) gave the proper weight to medical testimony from various sources,
(Pl.’s Obj., Dkt. No. 29 at 1–6); (2) that the ALJ correctly assessed Plaintiff’s credibility, (id. at 6–7);
and (3) that the ALJ gave proper consideration to the impact of Plaintiff’s obesity. (Id. at 7–8.)
Plaintiff first objects to the Magistrate Judge’s conclusion that the ALJ gave appropriate
weight to the testimony of Plaintiff’s treating physician, Dr. Lado. (Id. at 2–3; R&R, Dkt. No. 28 at
25). Plaintiff asserts that “both the ALJ and [the R&R] contend that Dr. Lado’s opinion is not
supported by objective testing and is inconsistent with Plaintiff’s reported activities,” (Pl.’s Obj.,
Dkt. No. 209 at 2), and that the R&R “simply reiterates the ALJ’s own ambiguous reasoning for
rejecting the well-supported medical assessment of record from a treating physician.” (Id.) Plaintiff
also objects to what he characterizes as the R&R’s “omission on the issue of whether the ALJ
reasonably rejected Dr. Lado’s opinion, in light of Blakley [v. Comm’r of Soc. Sec., 581 F.3d 399,
408 (6th Cir. 2009)].” (Id.) These arguments lack merit.
First, as the Magistrate Judge correctly noted, in a § 205(g) action, “[t]he Court may not
conduct a de novo review of the case, resolve evidentiary conflicts, or decide questions of
credibility.” (R&R, Dkt. No. 28 at 2) (citing Garner v. Hekcler, 745 F.2d 383, 387 (6th Cir. 1984)).
Rather, judicial review is “limited to determining whether the Commissioner applied the proper legal
standards in making her decision and whether there exists in the record substantial evidence
supporting that decision.” (R&R, Dkt. No. 28 at 2) (citing Brainard v. Sec’y of Health and Human
Services, 889 F.2d 679, 681 (6th Cir. 1989)). This deferential level of review “indicates that a
decision supported by substantial evidence will not be reversed simply because the evidence would
have supported a contrary conclusion.” (R&R, Dkt. No. 28 at 2) (citing Bogle v. Sullivan, 998 F.2d
342, 347 (6th Cir. 1993); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)).
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Contrary to Plaintiff’s assertion, the Magistrate Judge reviewed in great detail the medical
record in this case, (see R&R, Dkt. No. 28 at 3–14), and concluded that the ALJ’s determination
“that Dr. Lado’s opinion was contrarty to the results of various objective medical testsing” was “well
supported by the record as detailed above.” (Id. at 25.) Assuming arguendo that Plaintiff’s argument
that Dr. Lado’s opinion was supported by tests he conducted; that the ALJ adopted some of Dr.
Lado’s restrictions, while rejecting others without explanation; and that Plaintiff’s physical activities
aggravated his condition, (Pl.’s Obj., Dkt. No. 29 at 2–3), would support a decision to give more
weight to Dr. Lado’s opinion, the existence of “evidence [that] would have supported a contrary
decision” is insufficient to overturn an ALJ’s conclusion, where, as here, substantial evidence exists
to support that conclusion. See Bogle, 998 F.2d at 347; Mullen, 800 F.2d at 545. Plaintiff’s objection
is therefore overruled.
Plaintiff next objects to the Magistrate Judge’s analysis of the ALJ’s reliance on the
testimony of Dr. Lazzara, because the R&R “omits the necessary, precedential analysis set by Ealy
[v. Comm’r of Soc. Sec., 594 F.3d 504 (6th Cir. 2010)].” (Pl’s Obj., Dkt. No. 29 at 4.) In Ealy, the
Sixth Circuit held that “[i]n order for a vocational expert’s testimony in response to a hypothetical
question to serve as substantial evidence in support of the conclusion that a claimant can perform
other work, the question must accurately portray a claimant’s physical and mental impairments.”
Ealy, 594 F.3d at 516. Plaintiff argues that “the ALJ failed to fairly reflect the medical expert’s final
opinion in the hypothetical questioning.” (Pl.’s Obj., Dkt. No. 29 at 4.) However, a review of the
transcript reveals that the ALJ summarized Dr. Lazzara’s conclusions to the vocational expert point
by point before asking any hypothetical questions. (Tr., Dkt. No. 8-2 at 72–74.) Plaintiff’s assertion
to the contrary is counterfactual and his objection is therefore overruled.
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Plaintiff also argues that Dr. Lazzara’s opinion cannot be substantial evidence for the ALJ’s
conclusions because the ALJ’s final Residual Functional Capacity (RFC) determination is less
restrictive than Dr. Lazzara’s opinion. (Pl.’s Obj., Dkt. No. 29 at 5.) As the Magistrate Judge
correctly noted, the ALJ did not adopt Dr. Lazzara’s opinion, but rather gave it significant weight,
as it was consistent with other record evidence. (R&R, Dkt. No. 28 at 26.) Plaintiff’s objection is
therefore overruled.
Plaintiff next objects to the Magistrate Judge’s conclusion that the ALJ’s decision to give
diminished weight to the opinions of Dr. Willmarth and Dr. King is supported by substantial
evidence. (Pl.’s Obj., Dkt. No. 29 at 5–6.) Plaintiff argues that the ALJ’s conclusion to give
diminished weight to the testimonies of these treating physicians was based on a
“mischaracterization of Dr. Andert’s1 opinion.” Specifically, Plaintiff states:
The [R&R] fails to discuss that the ALJ contended that Dr. Andert testified that a
psychological Global Assessment of Functioning (“GAF”) score of 45, as found by
the Plaintiff’s treating psychiatrist, “would place the claimant in such severe
psychological shape as to be unable to function independently or to live outside a
sheltered living environment.” Dr. Andert provided no such testimony.
(Id. at 6.) Contrary to Plaintiff’s assertion, Dr. Andert provided substantially the same testimony as
the language quoted from the ALJ. (See Tr., Dkt. No. 8-2 at 68–69.) Plaintiff’s assertion to the
contrary is counterfactual and his objection is therefore overruled.
Plaintiff next objects to the Magistrate Judge’s conclusion that the ALJ’s decision to give
diminished credibility to Plaintiff’s own testimony is supported by substantial evidence. (Pl.’s Obj.,
Dkt. No. 29 at 6–7.) Plaintiff states that he “respectfully objects to the conclusions of [the R&R], as
[the R&R] omits any consideration of the ALJ’s mischaracterization of the record, and simply defers
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Dr. Andert is an independent medical expert who testified before the ALJ.
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to the ALJ’s credibility finding, no matter how egregious.” (Id. at 7.) Plaintiff bases this objection
on the purported mischaracterization of Dr. Andert’s testimony, (Pl.’s Obj., Dkt. No. 29 at 7), which,
as discussed above, was not mischaracterized at all. Plaintiff’s objection is therefore overruled.
Finally, Plaintiff objects to the Magistrate Judge’s determination that the ALJ considered
Plaintiff’s obesity at every step of the sequential evaluation process. (Pl.’s Obj., Dkt. No. 29 at 7;
R&R, Dkt. No. 28 at 32.) The Magistrate Judge concluded that the “ALJ recognized that Plaintiff
is obese and analyzed the entire record in assessing Plaintiff’s residual functional capacity.” (R&R,
Dkt. No. 28 at 32.) Plaintiff argues that this conclusion is based on “a mischaracterization of the
medical opinion evidence and administrative record” because “[b]oth Dr. Lado and Dr. Lazzara
provided medical opinions that are far more restrictive than the RFC determination” based upon
Plaintiff’s obesity (Pl.’s Obj., Dkt. No. 29 at 8.) Plaintiff argues that, based on a hypothetical that
these opinions were correct, “the vocational expert testified that the restrictions opined by the doctors
would be work preclusive.” (Id.) Plaintiff argues that the opinions of these physicians should have
been afforded greater weight, and therefore the ALJ’s determination that Plaintiff’s obesity is
nonsevere cannot be supported by substantial evidence. (Id.) Plaintiff’s argument is without merit.
As discussed above, there exists substantial evidence that the ALJ afforded proper weight
to the opinions of Dr. Lado and Dr. Lazzara. Further, in discussing his RFC finding the ALJ stated,
“[i]n making this finding, the undersigned has considered all symptoms and the extent to which
theses symptoms can reasonably be accepted as consistent with the objective medical evidence and
other evidence . . . The undersigned has also considered opinion evidence . . .” (Tr., Dkt. No. 8-2 at
28.) The ALJ also discussed the impact of Plaintiff’s obesity on his findings. (Id. at 25.) Therefore,
the Court agrees with the Magistrate Judge’s conclusion that “[t]he ALJ’s RFC determination
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sufficiently accounts for Plaintiff’s obesity and the limitations reasonably imposed by such.” (R&R,
Dkt. No. 28 at 32.) Plaintiff’s objection is therefore overruled.
For the foregoing reasons, this Court adopts the Magistrate Judge’s Report and
Recommendation as the Opinion of this Court. A Judgment will be entered consistent with this
Opinion and Order. See Fed. R. Civ. P. 58.
IT IS HEREBY ORDERED that the Plaintiff’s Objections (Dkt. No. 29) are
OVERRULED.
IT IS FURTHER ORDERED that the Magistrate Judge’s January 27, 2014, R&R (Dkt.
No. 28) is APPROVED and ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that the final decision of the Commissioner of Social
Security is AFFIRMED.

Date: February 24, 2014

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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