Malec v. Commissioner of Social Security

Filing 22

OPINION AND ORDER ACCEPTING REPORT AND RECOMMENDATION 19 for the added reasons recited in this Order ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)

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

THOMAS ANTHONY MALEC, III,
Plaintiff,

Case No. 1:13-CV-0919

v.

HON. ROBERT J. JONKER

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
/
OPINION AND ORDER RE
REPORT AND RECOMMENDATION
The matter before the Court is the Magistrate Judge’s Report and Recommendation (docket
no. 19), filed on November 10, 2014. The Plaintiff filed a set of Objections to the Magistrate
Judge’s Report and Recommendation (docket no. 20) on November 24, 2014. The Defendant filed
a Response to the Plaintiff’s Objections (docket no. 21) on December 8, 2014.
Under the Federal Rules of Civil Procedure, where a party has objected to portions of a
Report and Recommendation, “[t]he district judge . . . has a duty to reject the magistrate judge’s
recommendation unless, on de novo reconsideration, he or she finds it justified.” 12 WRIGHT,
MILLER & MARCUS, FEDERAL PRACTICE AND PROCEDURE § 3070.2, at 381 (2d ed. 1997).
Specifically, the Rules provide that:
The district judge to whom the case is assigned shall make a de novo
determination upon the record, or after additional evidence, of any
portion of the magistrate judge’s disposition to which specific written
objection has been made in accordance with this rule. The district
judge may accept, reject, or modify the recommended decision,
receive further evidence, or recommit the matter to the magistrate
judge with instructions.

FED. R. CIV. P. 72(b). De novo review in these circumstances requires at least a review of the
evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981).
The Court has reviewed de novo the claims and evidence presented to the Magistrate Judge, the
Report and Recommendation itself, the Plaintiff’s Objections to the Magistrate’s Report and
Recommendation, and the Defendant’s Response. After its review, the Court approves and adopts
Magistrate Judge Green’s Report and Recommendation as modified in this Order.
On October 2, 2007, Plaintiff Malec filed applications for Social Security Disability Benefits
and Supplemental Security Income Benefits, alleging that he became disabled on February 1, 2007
due to back pain, other related injuries, and feelings of anxiety, which had led him to visit various
emergency rooms on multiple occasions. (R. 15, Pl. Br. at 2–4, PageID # 880–82.) Malec does not
contest that he had an ongoing substance abuse problem. (R. 20, Pl. Br. at 3, PageID # 967.) After
his claim for benefits was denied, Malec requested a hearing, and then appeared before an
Administrative Law Judge (“ALJ”). On July 27, 2010, the ALJ found that Malec had severe
impairments, but that he also had the residual functioning capacity to perform simple tasks in select
work environments, and so he denied Malec’s claim for benefits. (R. 9-2, ALJ decision at 28,
PageID # 57.) Notably, the ALJ did not accept the opinions of some of the medical professionals
who treated Malec. (R. 15, Pl. Br. at 18, PageID # 896.)
The Report and Recommendation carefully examines the Plaintiff’s request for review of the
Commissioner’s final decision, and recommends that the Commissioner’s decision be affirmed. The
Court finds the Magistrate Judge’s Report and Recommendation to be well-reasoned and thorough.
In particular, the Court notes the careful and detailed examination of Malec’s case record. The Court
agrees that the Commissioner’s decision must be affirmed on the basis that the ALJ clearly
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considered all relevant evidence, and because the ALJ’s reasoning of how he weighed the evidence
satisfies the substantial-evidence standard. To the extent that the parties dispute whether the law is
clear on these points, this Court has discussed the case law and relevant standards that fully support
the Magistrate Judge’s Report and Recommendation.
I. MALEC’S OBJECTIONS
The Court’s review of Malec’s brief identifies two basic objections. First, Malec argues that
the ALJ erred in not considering the medical opinions of those who treated Malec. Second, Malec
argues that the ALJ’s finding that Malec could have performed full-time work is not supported by
substantial evidence, either because the ALJ either failed to examine or improperly weighed
significant medical evidence. The Court considers in turn each objection.
Objection #1:

The ALJ committed reversible error by not considering the opinions of
Plaintiff’s treating psychiatrist, Dr. Orellana.

Malec argues that the ALJ committed reversible error because the ALJ did not at all consider
the opinion of Dr. Orellana. (R. 20, Pl. Br. at 4, PageID # 968.) This is simply incorrect. Both the
Magistrate Judge and the ALJ considered what Dr. Orellana had to say. It is true that the ALJ did
not mention Dr. Orellana by name, but as the Magistrate Judge noted: “That is because the ALJ
addressed the evidence generated by Dr. Orellana by its exhibit number, Ex. 20F.” (R. 19, Report
at 29, PageID # 959.) The ALJ and the Magistrate Judge recited and evaluated the material
generated by Dr. Orellana in detail, and the ALJ even incorported the doctor’s initial diagnosis into
his conclusion. The Court agrees with the Magistrate Judge’s reasoning and finds no error. The
Court is satisfied that the ALJ considered this evidence and that no error worthy of reversal occurred.
See Gayheart, 710 F.3d at 378.

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Careful examination of the case law that addresses the requirement that an ALJ consider all
of the evidence confirms this conclusion. In Blakley, the Sixth Circuit found reversible error where
an ALJ “placed nothing on the record indicating that she considered the opinion” of a physician. See
Blakley, 581 F.3d at 407–08. But Blakley is distinguishable because here the ALJ considered the
physician’s opinion, as is obvious by the citation to the evidence and the discussion of the diagnosis.
In Gayheart, the Sixth Circuit implied that an ALJ’s reasons for accepting or rejecting a physician’s
opinion cannot be well founded if “the ALJ's decision does not discuss or even acknowledge the
extensive treatment notes from [a physican].”

Gayheart, 710 F.3d at 378. But unlike the

circumstances in Gayheart, which involved the “complete absence” of any mention of such evidence
in the ALJ’s opinion and no explanation, the discussion of and citation to the evidence indicates that
the ALJ considered this portion of the record. See id. at 379. The Court therefore overrules this
objection.
Objection #2:

The ALJ’s finding that Plaintiff could have performed full-time work is
not supported by substantial evidence because the ALJ improperly
weighed the medical professionals’ opinions.

As the Court observed at the onset, the parties dispute whether the law is clear on certain
points, and so it will specify the standards against which it reviews the ALJ’s decision. (R. 20, Pl.
Br. at 3, PageID # 967.) This Court reviews the ALJ’s decision under the highly deferential
substantial-evidence standard. See 42 U.S.C. § 405(g); Cotton v. Sullivan, 2 F.3d 692, 695 (6th Cir.
1993). The substantial-evidence standard is met if a “reasonable mind might accept the relevant
evidence as adequate to support a conclusion.” Warner v. Commissioner, 375 F.3d 387, 390 (6th Cir.
2004). “The substantial-evidence standard . . . presupposes that there is a zone of choice within
which the decision-makers can go either way, without interference by the courts.” Blakley v.
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Commissioner, 581 F.3d 399, 406 (6th Cir. 2009) (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th
Cir. 1986)). To be sure, “an ALJ’s failure to follow agency rules and regulations denotes a lack of
substantial evidence, even where the conclusion of the ALJ may be justified based upon the record.”
Gayheart, 710 F.3d at 374. However, if substantial evidence supports the ALJ’s decision and the
ALJ does not violate rules or regulations, this Court defers to that finding “even if there is substantial
evidence in the record that would have supported an opposite conclusion.” Id.
As noted above, ALJs must consider all evidence in the record, including the opinions of
medical professionals, in making a benefits determination. Gayheart, 710 F.3d at 378. “Medical
opinions are statements from physicians and psychologists or other acceptable medical sources that
reflect judgments about the nature and severity of your impairment(s), including your symptoms,
diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental
restrictions.” 20 C.F.R. § 404.1527(a)(2). “We use medical sources, including your treating source,
to provide evidence, including opinions, on the nature and severity of your impairment(s). Although
we consider opinions from medical sources on issues such as whether your impairment(s) meets or
equals the [listed] requirements of any impairment(s) . . . the final responsibility for deciding these
issues is reserved to the Commissioner.” Id. § 404.1527(d)(2) (emphasis added). In other words,
an ALJ is not required to accept a particular medical opinion, provided that he provides good reasons
as to why he is choosing not to do so.
When a case presents multiple conflicting medical opinions, such as this one, ALJs weigh
opinions differently depending on whether the source is considered a treating physician or a nontreating physician. The “treating physician rule” requires the ALJ to “generally give greater deference
to the opinions of treating physicians than to the opinions of non-treating physicians. Id. at 406. A
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physician is a treating physician if he has provided medical treatment to and has had an ongoing
treatment relationship with the claimant. See Blakley, 581 F.3d at 407. The ALJ must give a treating
source opinion controlling weight if two conditions are met: (1) the treating source opinion is
well-supported by medically acceptable clinical and laboratory diagnostic techniques; and (2) is not
inconsistent with the other substantial evidence in the case record.’” See Gayheart, 710 F.3d at 376
(quoting 20 C.F.R. § 404.1527(c)(2))). An ALJ must provide “good reasons” for why a treating
physician’s opinions fail to meet either the well-supported prong or the inconsistent with other
evidence prong. See Gayheart, 710 F.3d at 376. “If the ALJ does not accord controlling weight to
a treating physician, the ALJ must still determine how much weight is appropriate by considering
a number of factors, including the length of the treatment relationship and the frequency of
examination, the nature and extent of the treatment relationship, supportability of the opinion,
consistency of the opinion with the record as a whole, and any specialization of the treating
physician.” Blakley, 581 F.3d at 406. Treating sources in this case would include Dr. Orellana and
Dr. Harris, as well as the doctors who treated Malec when he was admitted to the Salvation Army
Turning Point Program. (R. 9-2, ALJ decision at 29, PageID # 53.)
In contrast, non-treating sources are never assessed for “controlling weight.” Gayheart, 710
F.3d at 376. “The Commissioner instead weighs these opinions based on the examining relationship
(or lack thereof), specialization, consistency, and supportability, but only if a treating-source opinion
is not deemed controlling.” Id. (citing 20 C.F.R. § 404.1527(c)). “Other factors ‘which tend to
support or contradict the opinion’ may be considered in assessing any type of medical opinion.” Id.
(quoting 20 C.F.R. § 404.1527(c)(6)). In this case, the state agency psychologists would fall under
the category of non-treating sources. (R. 9-2, ALJ decision at 31, PageID # 55.)
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With this standard in mind, the Court turns to Malec’s objection. Malec argues that the ALJ
failed to properly consider the opinions of Dr. Harris and Dr. Orellana, and that the Magistrate Judge
erred in finding otherwise. (R. 20, Pl. Br. at 6, PageID # 970.) Defendant the Commissioner
counters that “the ALJ was not required to consider the opinion as if it were a treating physician’s
opinion” and that the “ALJ did properly review the opinion.” (R. 21, Def. Br. at 4, PageID # 976.)
And the Commissioner also generally alleges that Malec’s objections are mere resuscitations of
arguments already presented to the Magistrate Judge. (R. 21, Def. Br. at 21, PageID # 977.) The
Court agrees with Malec to the extent that Dr. Harris and Dr. Orellana are properly considered to be
treating sources, but its agreement with Malec stops there.
As to Dr. Harris, Malec contends that the ALJ’s reasons for discounting the opinion were
“utterly specious.” (R. 20, Pl. Br. at 6, PageID # 970.) The Court disagrees, and adopts the
reasoning outlined in the Report and Recommendation. As noted above, an ALJ need not give a
treating source opinion controlling weight if it is inconsistent with other substantial evidence in the
case record. See Gayheart, 710 F.3d at 376 (quoting 20 C.F.R. § 404.1527(c)(2))). To be sure, the
conflicting substantial evidence must consist of more than just the medical opinions of non-treating
doctors, such as the state agency psychologists that reviewed Malec’s case file. See Gayheart, 710
F.3d at 377. Had the ALJ only identified the conflicting non-treating source opinions as the evidence
that was inconsistent with the treating source opinions, he would not have provided “good reasons”
and the Sixth Circuit’s holding in Gayheart would have compelled this Court to remand Malec’s
case back to the Commissioner. See id.
But that is not the case. The Court directs Malec’s attention to the Report and
Recommendation, which reproduces the ALJ’s observation that Dr. Harris’s assignment of a GAF
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of 25 would indicate that Malec’s behavior is considerably influenced by delusions and
hallucinations, which would seriously affect Malec’s ability to function in almost all areas. (R. 9-2,
ALJ decision at 30, PageID # 54.) There is ample evidence in the case record that is inconsistent
with this diagnosis, which the ALJ listed: Malec goes out and drives regularly, does laundry
regularly, feeds himself and provides himself personal care regularly, and so on. (R. 9-2, ALJ
decision at 30, PageID # 54.) Other treating sources, namely Dr. Orellana and the treating physician
at the Salvation Army Turning Point Program, did not describe Malec this way. Non-treating
sources associated with the state did not believe the evidence led to this conclusion. And Malec did
not require prompting during the interview process and seemed alert and functioning before the ALJ.
(R. 9-2, ALJ decision at 29–30, PageID # 53–54.) A reasonable mind could find that this evidence
is inconsistent with a diagnosis that indicates a seriously delusional individual. The ALJ also noted
that Dr. Harris’s later opinion was that Malec was logical and organized and capable of managing
his benefits. (R. 9-2, ALJ decision at 31, PageID # 55.) The ALJ did not give significant weight to
the opinion because the ALJ believed that Dr. Harris’s reports were internally inconsistent, and on
reviewing other substantial evidence in the case record, the ALJ found that Dr. Harris’s reported
findings were not supported by the record. (R. 9-2, ALJ decision at 31, PageID # 55.) These
constitute good reasons, and this Court identifies no reversible error.
As to Dr. Orellana, Malec reiterates his objection above and suggests that the ALJ’s reasons
for discounting the opinion were not thorough. (R. 20, Pl. Br. at 6, PageID # 970.) To the extent
Malec relies on the mentioning of the exhibit rather than his name, the Court disagrees with Malec
because nothing requires the ALJ to use the doctor’s name. To the extent that the parties disagree
whether Dr. Orellana was a treating physician, the Court believes that he was, but finds that the ALJ
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provided a discussion of his diagnosis that was satisfactory.

As noted in the Report and

Recommendation, Dr. Orellana indicated that Malec’s condition was improving, and a reasonable
mind could reach the conclusion that the ALJ did. There is no glaring inconsistency that was
overlooked by the ALJ. See Gayheart, 710 F.3d at 379. Instead, there were several treating source
opinions as well as a non-treating source opinion, their conclusions were divergent, and the ALJ
relied on the opinions that he felt were supported by the record evidence.
Malec also points to the fact that Dr. Orellana provided him with a Global Assessment of
Function (“GAF”) score of 45 in arguing that the “clear import of the evidence from the doctor
indicated that Plaintiff would not have been able to perform significant work on a regular basis.”
(R. 20, Pl. Br. at 4, PageID # 968.) The Court agrees that one reasonable interpretation of the
evidence leads to the conclusion that Malec reaches, but in light of the substantial-evidence standard
of review, this argument is of no help. See Warner, 375 F.3d at 390. Malec himself acknowledges
that “GAF scores alone will not support a finding of disability,” and instead notes that when GAF
scores are accompanied by evidence which supports a finding of disability, an ALJ may not dismiss
the GAF scores out of hand. (R. 20, Pl. Br. at 5, PageID # 969.) But as this Court noted in its above
discussion, the ALJ did in fact detail his reasons for weighing the evidence as he did. The ALJ noted
that the treating source at the Salvation Army Training Point program gave Malec a GAF score of
58. (R. 9-2, ALJ decision at 29, PageID # 53.) The ALJ also noted that a GAF score of 61 would
indicate only mild symptoms. (R. 9-2, ALJ decision at 29, PageID # 53.) That treating source
observed that Malec was capable of maintaining his “activities of daily living.” (R. 9-2, ALJ
decision at 29, PageID # 53.) It is true that select evidence in the record “provide[s] support for
Dr. Orellana’s findings that Plaintiff had significant disabilities,” but it is also true that select
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evidence in the record provides support for the ALJ’s findings. (R. 20, Pl. Br. at 5, PageID # 969.)
Again, the highly deferential standard of review limits this Court to determining only if the ALJ’s
decision falls within the “zone of choice within which the decision-makers can go either way,
without interference by the courts.” Blakley, 581 F.3d at 406. The Court finds that it does.
Finally, Malec insists that there “is absolutely no question that the ALJ and the Magistrate
completely neglected to follow the rulings in Gayheart. This is incorrect for the reasons stated
above. The Court goes on to note the significant factual differences between Malec’s case and
Gayheart. In Gayheart, the Sixth Circuit found that an ALJ’s observation that the claimant could
leave home, drive, keep medical appointments, visit friends and neighbors, shop with his wife, and
attend hearings did not constitute substantial evidence which undermined the treating physician’s
opinion that the claimant was disabled because there was no evidence that the claimant could
perform these tasks on a sustained basis.

Gayheart, 710 F.3d at 377 (citing 20 CFR

§ 404.1520a(c)(2)). But the Sixth Circuit made clear that its rationale was that taking examples out
of context, where the examples are clearly offset by other examples in the record, is an insufficient
basis for giving a treating physician’s opinions little weight under 20 CFR § 404.1527(c). See id.
at 378. In this case, there were multiple treating source opinions that suggested levels of
functionality ranging from approximately mild to seriously delusional, non-treating source opinions
that suggested a moderate level of functionality, and other record evidence that suggested Malec can
perform the basic “activities of daily living.” (R. 9-2, ALJ decision at 29, PageID # 53.) Gayheart
does not compel reversal in this case. It is therefore perhaps unsurprising that the Sixth Circuit has
since cautioned that while Gayheart “helped identify “which reasons will later be found to be
sufficiently good reasons on appellate review. . . the lines of demarcation are not clear, and in the
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vast majority of cases, a position defending a final administrative decision despite its imperfections
will be justified.” DeLong v. Commissioner, 748 F.3d 723, 728 (6th Cir. 2014) (internal quotation
marks omitted). Malec’s objection is overruled.
II. CONCLUSION
ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the
Magistrate Judge (docket no. 19), is accepted for the added reasons recited in this Order.
IT IS SO ORDERED.

Dated:

January 20, 2015

/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE

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