Opinion
Case No.: 01-CV-70956
February 19, 2002
OPINION ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
At a session of said Court, held in the U.S. District Courthouse, City of Detroit, County of Wayne State of Michigan, February 19, 2002
I. Background
On August 13, 1996, Plaintiff James Flagg ("Flagg") filed an application for Social Security disability insurance benefits, alleging that he had become disabled and unable to work on May 26, 1995, due to depression, arthritis, and musculo-skeletal pain. Benefits were denied initially and upon reconsideration by the Social Security Administration.
A de novo hearing was held on May 1, 1998, before Administrative Law Judge ("ALJ") Henry Perez. The ALJ determined that Flagg retained the residual functional capacity to perform a limited range of sedentary work activity providing a sit-stand option prior to June 30, 1997, when his insured status expired. After the Appeals Council declined to review that action, Flagg filed this action seeking judicial review of the denial of benefits.
The parties both filed motions for summary judgment. This matter was referred to Magistrate Judge Donald A. Scheer for entry of a Report and Recommendation ("RR"). On January 15, 2002, Magistrate Judge Scheer issued his RR, recommending that Plaintiffs motion for summary judgment be denied. (RR at 1). Magistrate Judge Scheer further recommended that Defendant's motion for summary judgment be granted, as there was substantial evidence on the record to support the ALJ's determination that Flagg retained the residual functional capacity for a limited range of sedentary work providing a sit-stand option prior to June 30, 1997, when his insured status expired. ( Id.).
The RR also notified the parties that they may object to and seek review of the RR, but are required to do within ten days of service of a copy of the RR. (RR at 15). This Court reviews de novo those portions of the RR that Flagg finds objectionable. See 28 U.S.C. § 636(b)(1)(C); Smith v. Detroit Fed'n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987).
On January 23, 2002, Flagg filed timely objections to the RR.
II. Discussion
Flagg asserts several objections to Magistrate Judge Scheer's January 15, 2002 RR. For the following reasons, the Court rejects each of these objections.
The Magistrate Judge Ignored Evidence From Treating Doctors
First, Flagg asserts that the Magistrate Judge "ignored evidence from treating psychiatrist Dr. Karabey (A.R. 317-318, 346-349), Administrative Consulting Psychiatrist, H.C. Tin, M.D. (A.R. 136), and Rom Kriauciurias, Ph.D. (A.R. 145)." (Objections at 1).
The Court finds this objection without merit, as there is nothing to indicate that the Magistrate Judge "ignored" any evidence from the above individuals. Magistrate Judge Scheer, who noted that it is the exceptionally rare case in which "every piece of evidence points incontrovertibly towards a decision to deny benefits," acknowledged that in this case there was "medical evidence to support both sides." (RR at 13). However, as explained in the RR, judicial review of the ALJ's determination is limited to determining whether the ALJ's findings were supported by substantial evidence in the record, with substantial evidence being "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." (RR at 8). The Magistrate Judge does not need to discuss or specifically reject all of the evidence presented by both sides in making such a determination.
The Magistrate Judge Erred in His Conclusion on Page 12 Regarding Dr. Ciullo
Flagg also asserts that the "Magistrate Judge's conclusion on page twelve of his recommendation regarding the opinion of treating physician Jerome Ciullo, M.D. is in error." (Objections at 2). With respect to Dr. Ciullo, page 12 of Magistrate Scheer's RR stated:
It is well settled that opinions of treating physicians should be given greater weight than those of one-time examining doctors retained by the government. Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980). However, the opinion of the treating physician is entitled to deference only if his clinical findings are uncontradicted by substantial medical or other evidence, and if the opinion is based on detailed, clinical, diagnostic evidence. Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). Since Dr. Ciullo offered little objective evidence to support his conclusion of disability during the relevant period, his opinion need not have been given any special weight.
A footnote on page 12 of the RR further explained that:
Dr. Ciullo only saw Plaintiff one time during the relevant period between May 1995 and June 1997. The single page treatment note, dated July 2, 1996, summarized claimant's subjective complaints of bilateral shoulder pain, and recommended that he undergo additional surgery to help alleviate the joint discomfort (TR 259). Contrary to the claimant's suggestion, the fact that the doctor had treated him since November 1990 for joint pain provides no support for his declaratory statement that he would never be able to work again. Nevertheless, the Law Judge incorporated the treating doctor's restrictions concerning Plaintiffs limited use of his upper extremities and inability to do more than minimal lifting (TR 337) into his residual functional capacity evaluation.
( Id.).
The Court believes that Flagg is asserting that the Magistrate Judge's conclusion that "Dr. Ciullo offered little objective evidence to support his conclusion of disability during the relevant period" is in error. Flagg states that "Dr. Ciullo outlined in detail the objective evidence supporting his conclusion of disability (A.R. 334-343), and then specifically stated that the Plaintiffs impairment has been at this severe level since 1990 (A.R. 341)." (Objections at 2). However, the Court fails to find any such "detailed, objective evidence" supporting Dr. Ciullo's conclusion of total disability in the pages of the record cited by Flagg. Accordingly, the Court rejects this objection.
The Magistrate Failed to Properly Evaluate the Hypothetical Posed to the Vocational Expert
Flagg also asserts that the Magistrate Judge "failed to evaluate the conclusions of the Administrative Law Judge with regard to mental restrictions," and "failed to evaluate the flawed hypothetical to the Vocational Expert pursuant to Reed v. Secretary, 804F.Sub [sic] 914 (E.D. Mich, 1992)." (Objections at 2). Although it is clear that Flagg intended to refer to Reed v. Secretary of Health Human Serv's., 804 F. Supp. 914 (E.D. Mich. 1992), his objections do not identify any specific portions of that opinion. Nevertheless, the Court notes that the above case stated that "[a] hypothetical question to a VE may omit nonsevere impairment but must include those which the ALJ finds to be severe." Id. at 924.
In support of his position, Flagg states that "[t]he ALJ concluded that Plaintiff would often experience deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner in work settings or elsewhere (A.R. 25), yet failed to pose this conclusion to the Vocational Expert." (Objections at 2-3). Thus, it appears that Flagg is asserting that the above noted difficulties are a severe impairment that should have been included in the hypothetical posed to the Vocational Expert, but were not. The Court disagrees.
The ALJ concluded that:
The medical evidence establishes that Claimant has bilateral shoulder pain, complaints of other musculoskelatal pain, and mild depression, but that he does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.
(A.R. at 21). The ALJ did find that Flagg "often" experienced deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner, on scale ranging from "never, seldom, often, frequent, constant or insufficient evidence." However, a rating at that degree of limitation does not satisfy the functional limitation required for affective disorders. ( Id. at 23-26).
The degree of limitation must be at "frequent" or "constant" to satisfy the applicable listings. ( Id.).
Moreover, the hypothetical posed to the Vocational Expert did include Flagg's nonsevere functional limitation, as the hypothetical stated that Flagg "should not be asked to carry out complex job assignments," and that he "should not be asked to deal with high levels of stress or high production levels." (A.R. at 20).
The Magistrate Judge Failed to Properly Evaluate the ALJ's Failure to Complete the Administrative Record
Flagg's final objection to the RR is that the Magistrate Judge "did not evaluate the ALJ's failure to complete the Administrative Record in accordance with regulatory standards concerning existing medical evidence pursuant to 20 C.F.R. § 404.1512." (Objections at 3).
Objections made to an RR must be clear enough to enable the district court to discern those issues that are dispositive and contentious. Howard v. Secretary of Health Human Serv's., 932 F.2d 505, 509 (6th Cir. 1991). Flagg has not explained in what respect he believes the ALJ failed to complete the Administrative Record in accordance with the applicable regulatory standards. As such, the Court rejects this objection.
III. Conclusion
Having reviewed the RR and objections thereto, this Court concurs with the recommendations of Magistrate Judge Scheer.
Accordingly, for the reasons set forth above, and for the reasons set forth by Magistrate Judge Scheer in the January 15, 2002 RR, IT IS ORDERED that Plaintiffs motion for summary judgment is DENIED and Defendant's motion for summary judgment is GRANTED. A Judgment consistent with this Opinion and Order shall issue forthwith.