Billings v. Commissioner of Social Security

Filing 24

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 22 ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, sdb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SCOTT BILLINGS,
Plaintiff,
CASE NO. 1:17-CV-775
v.
HON. ROBERT J. JONKER
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
__________________________________/
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
The Court has reviewed Magistrate Judge Carmody’s Report and Recommendation in this
matter (ECF No. 22) and Plaintiff’s Objection to it (ECF No. 23). Under the Federal Rules of Civil
Procedure, where, as here, a party has objected to portions of a Report and Recommendation, “[t]he
district judge . . . as 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 451 (3d ed. 2014). Specifically, the Rules provide that:

The district judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to. The district
judge may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge
with instructions.
FED R. CIV. P. 72(b)(3). 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 Magistrate Judge recommends affirming the Commissioner’s decision on the basis that
the ALJ’s decision is supported by substantial evidence. The Court has reviewed de novo the
claims and evidence presented to the Magistrate Judge; the Report and Recommendation itself; and
Plaintiff’s Objection to it. After its review, the Court finds that Magistrate Judge Carmody’s Report
and Recommendation is factually sound and legally correct and accordingly adopts its conclusion.
PLAINTIFF’S OBJECTION
Plaintiff raises three objections, all of which lack merit. First, Plaintiff argues the Magistrate
Judge erred in finding the ALJ’s treatment of Dr. Safdar’s opinion was supported by substantial
evidence. Plaintiff contends the ALJ should have explicitly discussed each of the factors used to
determine the weight given the opinions of his treating physician. An ALJ’s explanation “must be
sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to
the treating source’s medical opinion and the reasons for that weight.” SSR 96–2p, 1996 WL
374188, at *5 (1996).1

But the Court is unaware of any binding authority–and Plaintiff’s

Objections provide none–requiring an ALJ to explicitly discuss each factor. Moreover, there is
persuasive authority indicating that an ALJ need not engage in a discussion of each factor. See, e.g.,
Francis v. Comm'r of Soc. Sec., 414 F. App’x 802, 804 (6th Cir. Mar. 16, 2011) (“Although the
regulations instruct an ALJ to consider these factors, they expressly require only that the ALJ’s
decision include ‘good reasons . . . for the weight . . . give[n] [to the] treating source’s
opinion’—not an exhaustive factor-by-factor analysis”); Tilley v. Comm’r of Soc. Sec., 394 F.
App’x 216, 222 (6th Cir. 2010) (indicating that an ALJ is not required to explicitly address each of
the factors); Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (“[Plaintiff] cites no law, and
1

This SSR has been rescinded by the Commissioner and new regulations have been
established for claims filed after March 27, 2017. Plaintiff filed his claim before March 27, 2017,
and so the SSR is properly considered.
2

we have found none, requiring an ALJ's decision to apply expressly each of the six relevant factors
in deciding what weight to give a medical opinion.”).
After a de novo review of the administrative record, the Court agrees with the magistrate
judge that the ALJ articulated goods reasons, supported by substantial evidence, for according the
opinion of Dr. Safdar less than controlling weight. The ALJ thoroughly discussed the supportability
of the opinions, as well as the consistency of the opinion with the record as a whole. The ALJ was
not required to expressly consider all the other factors.
Second, Plaintiff objects to the Magistrate’s treatment of his testimony at the administrative
hearing. First, it is plain that the ALJ found that Plaintiff’s testimony was less than fully
credible–this is as specific as the ALJ needed to have been. And to the extent that Plaintiff
complains that the ALJ failed to articulate his reasons for finding Plaintiff’s subjective allegations
to be less than fully credible, the Court agrees with the Magistrate Judge that the ALJ clearly, in
fact, did provide his reasoning–and concluded that the severity of the allegations were not borne out
in the record. Plaintiff says the ALJ should have discussed his testimony that he was unable to hold
a cane in his hand, unless he uses the full weight and balance of his hip to control it. (ECF No. 23,
PageID.641). But the ALJ found this assertion to be inconsistent with, among other things, the
November 2015 treatment records of Dr. Khaleel, which noted that Plaintiff did not use a cane
during the physical examination and could heel and toe walk without any difficulty. In other words,
the ALJ performed precisely the type of analysis that Plaintiff says was not conducted.
Accordingly, this objection fails.
Finally, Plaintiff objects to the Magistrate’s conclusion that the ALJ’s decision is supported
by substantial evidence. In this objection, Plaintiff mainly relies on his testimony–which claimed
limitations that were in excess of those the ALJ ultimately assigned. The problem for Plaintiff is
3

this: Plaintiff’s burden on appeal is much higher than citing evidence on which the ALJ could have
found a greater level of restriction. Indeed “the Commissioner’s decision cannot be overturned if
substantial evidence, or even a preponderance of the evidence, supports the claimant's position, so
long as substantial evidence also supports the conclusion reached by the ALJ.” Jones v.
Commissioner of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003).

Here, Plaintiff’s subjective

allegations were found to be less than fully credible by the ALJ because they were inconsistent with
the objective medical evidence.

That determination is supported by substantial evidence.

Accordingly, Plaintiff fails to demonstrate the ALJ acted outside the “zone of choice” that is
accorded ALJs at this stage of review. See Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001).
CONCLUSION
ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the
Magistrate Judge (ECF No. 22) is approved and adopted as the opinion of the Court.
IT IS FURTHER ORDERED that the Commissioner’s decision is AFFIRMED.
A separate Judgment shall issue.

Date:

September 4, 2018

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

4