Dunlap v. Social Security Administration

Filing 25

ORDER denying Plaintiff's 14 Motion for Summary Judgment; granting Defendant's 18 Motion for Summary Judgment; accepting and adopting the Magistrate Judge's 22 Report and Recommendation. The decision of the Commissioner is AFFIRMED; and This matter is DISMISSED WITH PREJUDICE. Signed by District Judge Harry S Mattice, Jr on 3/6/2018. (BJL, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at KNOXVILLE
BRAD H. DUNLAP,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Case No. 3:17-cv-64
Judge Mattice
Magistrate Judge Poplin

ORDER
On January 19, 2018, the United States Magistrate Judge assigned to this case filed
a Report and Recommendation (Doc. 22) pursuant to 28 U.S.C. § 636(b)(1) and Federal
Rule of Civil Procedure 72(b). The Magistrate Judge recommended that: (1) Plaintiff’s
Motion for Summary Judgment (Doc. 14) be denied; (2) Defendant’s Motion for Summary
Judgment (Doc. 18) be granted; and (3) the decision of the Commissioner be affirmed.
(Doc. 22 at 23).
Plaintiff filed timely objections to the Magistrate Judge’s Report and
Recommendation (Doc. 23). He presents a wide array of arguments, including: (1) that
the medical opinion of Dr. Redmon, Plaintiff’s treating physician, regarding the nature
and extent of Plaintiff’s pain should have resulted in a finding of disability; (2) that Dr.
Redmon’s opinion that Plaintiff could not perform full-time work was well-supported and
should have been afforded greater weight; (3) that the ALJ improperly relied on the
opinion of Dr. Hunt, who did not examine all of Plaintiff’s medical records and “misread”
Plaintiff’s MRI; (4) the ALJ improperly denied Plaintiff’s subpoena request as to Dr.
Hunt; (5) the ALJ and Magistrate Judge failed to analyze the impact and side effects of

Plaintiff’s pain medication; (6) the Magistrate improperly relied on the Sixth Circuit’s
decision of a prior social security appeal filed by Plaintiff; and (7) the Magistrate Judge
improperly concluded that the report from Dr. Maccree was not a medical opinion. (Doc.
23). The Court reviews Plaintiff’s objections de novo. See 28 U.S.C. § 636(b)(3).
The Court has conducted a review of the Report and Recommendation, as well as
the record, and it agrees with the Magistrate Judge’s well-reasoned conclusions for the
reasons stated herein.
I.

ANALYSIS
A.

Opinion of Dr. Redmon Regarding Plaintiff’s Pain

As outlined above, Plaintiff’s treating physician Dr. Redmon opined: “[Plaintiff]
has a medical condition, confirmed by MRI and EMG/NCV that could reasonably be
expected to produce severe pain.” (Doc. 13-4 at 71). According to Plaintiff, if he has a
medical condition confirmed by objective medical evidence that may reasonably be
expected to produce severe pain, he must be found disabled. (Doc. 23 at 2). Plaintiff cites
Duncan v. Secretary, 801 F.2d 847, 853 (6th Cir. 1986), in support of this argument.
While Plaintiff’s recitation of the rule set forth in Duncan is correct, its application
to the facts of this case do not warrant a finding that he is disabled. The Magistrate Judge
addressed the ALJ’s consideration of Dr. Redmon’s opinion in this respect, and concluded
that Dr. Redmon’s conclusions regarding the severity of Plaintiff’s pain did not find
support in the record as a whole. (Doc. 22 at 13-14). As explained by the Magistrate Judge,
Redmon’s own treatment notes revealed that Plaintiff’s pain improved significantly in
response to oral medication and injections. See Burney v. Comm’r of Soc. Sec., 2013 WL
1289310, at *3 (E.D. Mich. Mar. 28, 2013) (citing Pasco v. Comm’r of Soc. Sec., 137 Fed.
App’x. 828, 836 (6th Cir. 2005)) (“Notably, impairments that are controlled by
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medication are not disabling.”). He also noted that Plaintiff “appeared in no acute
distress, his symptoms were stable, and his gait improved.” (Doc. 22 at 13-14). Duncan
does not stand for the proposition that any evidence indicating a condition causing severe
pain, no matter how contradictory or unsupported, commands a finding of disability.
Rather, courts must look to the objective medical evidence contained in the record as a
whole, which is exactly what occurred in this case. Thus, Plaintiff’s objection will be
OVERRULED.
B.

Opinion of Dr. Redmon Regarding Plaintiff’s Ability to
Work

Plaintiff’s argues that a second opinion of Dr. Redmon should have resulted in a
finding of disability. Specifically, Dr. Redmon opined: “[Plaintiff]’s medical conditions
prevent him from performing any type of full time work.” (Doc. 13-4 at 71). Plaintiff
presented an identical argument to the Magistrate Judge, who analyzed it fully and found
it was without merit. (Doc. 22 at 6-15). These arguments are not properly before the Court,
and Plaintiff’s objections in this respect will be OVERRULED. See VanDiver v. Martin,
304 F. Supp. 2d 934, 937 (E.D. Mich. 2004) (“A general objection, or one that merely
restates the arguments previously presented is not sufficient to alert the court to alleged
errors on the part of the magistrate judge. An ‘objection’ that does nothing more than
state a disagreement with a magistrate’s suggested resolution, or simply summarizes what
has been presented before, is not an ‘objection’ as that term is used in this context.”).
C.

Weight Afforded to Dr. Hunt’s Findings

Plaintiff also objects to the Magistrate Judge’s finding that the ALJ properly relied
upon the medical opinion of Dr. Hunt. According to Plaintiff, Dr. Hunt did not examine
Plaintiff’s medical records or review the report of his treating physician Dr. Redmon.

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(Doc. 23 at 3-4). In addition, Plaintiff alleges that Dr. Hunt’s conclusions regarding his
MRI are incorrect, as Dr. Hunt concluded that Plaintiff had “minimal left neural
foraminal narrowing” while another report in the record characterized the narrowing as
“marked.” (Docs. 23 at 3; 13-2 at 115; 13-4 at 72).
Plaintiff’s arguments regarding the medical records Dr. Hunt failed to review are
without merit. The record reflects that Dr. Hunt took a medical history from Plaintiff,
conducted a physical examination, and analyzed a recent MRI. (Doc. 13-2 at 114-116).
These are factors that courts should consider when evaluating medical opinions from
non-treating sources. 20 C.F.R. § 404.1527(C)(1), (3)-(6). Plaintiff cites no authority that
requires a physician to examine a claimant’s entire medical record before formulating an
opinion.
In addition, the Court finds Plaintiff’s challenges to Dr. Hunt’s interpretation of his
MRI similarly unavailing. The report Plaintiff refers to that explains the narrowing in his
spine as “marked” as opposed to “minimal” is unsigned. There is no indication of who
authored the report or their history of treatment with Plaintiff, which is perhaps why the
ALJ relied on Dr. Hunt’s findings instead. (Doc. 13-4 at 72). In any event, that two
physicians had different interpretations of the same MRI is no reason to disregard the
ALJ’s conclusions. Such contradictory evidence is commonplace in social security
appeals, and the Commissioner is tasked with resolving those contradictions. See Doll v.
Colvin, 2016 WL 6091403, at *14 (M. D. Tenn. Sept. 21, 2016) (“When contradictory
evidence in the records exists, the final decision regarding the evaluation of evidence as a
whole lies with the Commissioner.”) (citing 20 C.F.R. § 416.927(e)(2)). Finally, there is
no evidence suggesting that Dr. Hunt analyzed the wrong MRI, as Plaintiff seemingly

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speculates. Accordingly, because this objection is not well taken, it will be
OVERRULED.
D.

The ALJ’s Denial of Plaintiff’s Subpoena Request

Next, Plaintiff argues that Dr. Hunt should have clarified which MRI he analyzed
and also identified other evidence that supports his opinions. For that reason, he alleges
that the ALJ improperly denied his subpoena request as to Dr. Hunt. (Doc. 23 at 4).
The Court declines to address this objection because it rests upon arguments that
were not raised in Plaintiff’s underlying Motion for Summary Judgment (Docs. 14 & 15).
As explained by the Sixth Circuit, “while the Magistrate Judge Act, 28 U.S.C. § 631 et
seq., permits de novo review by the district court if timely objections are filed, absent
compelling reasons, it does not allow parties to raise at the district court stage
new arguments or issues that were not presented to the magistrate.” Murr v. United
States, 200 F.3d 895, 902 n. 1 (6th Cir.2000); see also Whittum v. Saginaw County,
2005 WL 3271810, at *4 (E.D.Mich. Nov.22, 2005) (“The Magistrate Act was not intended
to give litigants an opportunity to run one version of their case past the magistrate, then
another past the district court.”) (internal quotation marks and citation omitted).
Accordingly, this objection will be OVERRULED.
E.

Side Effects of Plaintiff’s Medications

Plaintiff also asserts that the Magistrate Judge did not address the ALJ’s failure to
consider the impact and side effects of Plaintiff’s pain medication. Specifically, Plaintiff
states that the ALJ failed to note his testimony at the hearing and at a previous hearing
that his hydrocodone prescription, which he ingests daily, causes drowsiness. Plaintiff
testified that the drowsiness is so severe that he must lay down for an hour or two, and
sometimes up to half a day, after taking this medication. (Docs. 23 at 4-6).
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First, the Court notes that Plaintiff did not clearly develop this particular argument
in his Motion for Summary Judgment (Doc. 15). He only mentions his alleged side effects
in a footnote, and instead mainly focuses on the ALJ’s omission in discussing the number
of epidural injections he received or the number of years he has been taking pain
medication. (Id. at 4-6 & n. 2). Thus, the question of whether this objection is properly
before the Court is borderline at best. See Murr, 200 F.3d at 902 n. 1.
Even if the Court were to give Plaintiff the benefit of the doubt, his objection fails
on its merits. Plaintiff is correct that in evaluating complaints of pain, federal regulations
mandates that the ALJ consider “[t]he type, dosage, effectiveness, and side effects of any
medication you take or have taken to alleviate your pain or other symptoms.” 20 C.F.R. §
416.929(c)(3)(iv). Indeed, the Magistrate Judge cited this rule in the Report and
Recommendation. (Doc. 22 at 14). Plaintiff’s alleged side effects, however, find no support
in his medical records or treatment notes. The only portion of the record Plaintiff relies
upon in this argument is his own testimony at two separate ALJ hearings. (Doc. 13-5 at
172, 195). Notably, Plaintiff’s credibility was called into question by the ALJ, who clearly
noted in the written opinion that he found certain testimony of Plaintiff “not believable.”
(Doc. 13 at 41). Furthermore, and as explained by the Magistrate Judge, “an ALJ can
consider all the evidence without directly addressing in his written decision every piece of
evidence submitted by a party.” (Doc. 22 at 14) (quoting Kornecky v. Comm’r of Soc. Sec.,
167 Fed. App’x. 496, 508 (6th Cir. 2006)).
Given that Plaintiff’s alleged side effects were not noted by his doctors, and the fact
that the ALJ is not required to discuss every consideration in the written opinion, the
Court finds that this objection should be OVERRULED.

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F.

The Magistrate Judge’s Reliance on Plaintiff’s Prior Case

This case is not Plaintiff’s first appeal of the Commissioner’s decision denying
benefits. He formerly filed an appeal that was denied by the district court, which was later
affirmed by the Sixth Circuit in Dunlap v. Comm’r of Soc. Sec., 509 Fed. App’x. 472, 474
(6th Cir. 2012). In his objections, Plaintiff argues that the Magistrate Judge improperly
relied on that Sixth Circuit’s opinion in his Report and Recommendation. According to
Plaintiff, the Sixth Circuit’s decision in Dunlap is not controlling here because his
condition has worsened since the time of the previous appeal. (Doc. 23 at 6).
Plaintiff is mistaken that the Magistrate Judge improperly relied on Dunlap. It is
evident from the Report and Recommendation that the Magistrate Judge did not look to
Plaintiff’s previous appeal in order to deduce the severity of his impairments or to avoid
analyzing the facts of this particular case. Rather, the Magistrate Judge merely cited the
Sixth Circuit’s rule in Dunlap outlining the proper weight to afford to medical opinions
that invade the purview of the Commissioner’s decision as to whether a claimant is
disabled. The Sixth Circuit further outlined instances in which an ALJ’s failure to clearly
label his explanation as to the weight he afforded an opinion constitute harmless error.
(Doc. 22 at 12-13); Dunlap, 509 Fed. App’x. 474-76. Despite Plaintiff’s assertions to the
contrary, there is no impropriety to be found here. The objection will accordingly be
OVERRULED.
G.

Whether Dr. Maccree’s Report is a Medical Opinion

Finally, Plaintiff’s contests the Magistrate Judge’s finding that a report authored
by Dr. Maccree did not constitute a medical opinion. Plaintiff’s arguments supporting this
objection are identical to those set forth in his Motion for Summary Judgment. (Doc. 15
at 7-8). The Magistrate Judge fully considered these arguments and outlined clear reasons
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for rejecting them in the Report and Recommendation. (Doc. 22 at 15-18). Thus, the
objection is not properly before the Court, and it will be OVERRULED. See VanDiver v.
Martin, 304 F. Supp. 2d at 937.
II.

CONCLUSION

For the reasons set forth above,
1.

The Court ACCEPTS and ADOPTS the Magistrate Judge’s findings of fact,
conclusions of law, and recommendations (Doc. 22) pursuant to 29 U.S.C.
§ 636(b)(1) and Rule 72(b);

2.

Plaintiff’s Objections (Doc. 23) are OVERRULED;

3.

Plaintiff’s Motion for Summary Judgment (Doc. 14) is DENIED;

4.

Defendant’s Motion for Summary Judgment (Doc. 18) is GRANTED;

5.

The decision of the Commissioner is AFFIRMED; and

6.

This matter is DISMISSED WITH PREJUDICE.

SO ORDERED this 6th day of March, 2018.

/s/ Harry S. Mattice, Jr._____
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE

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