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Stewart v. Commissioner of Social Security

United States District Court, Eastern District of Michigan, Southern Division

March 16, 2015

JOE LEE STEWART, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

R. Steven Whalen Magistrate Judge

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION [14], DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [12], AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [13]

LAURIE J. MICHELSON UNITED STATES DISTRICT JUDGE

Plaintiff Joe Stewart suffers from a number of medical conditions including diabetes, obesity, and chronic obstructive pulmonary disease (“COPD”). Based on his impairments, Stewart sought social security disability benefits. An administrative law judge acting on behalf of Defendant Commissioner of Social Security concluded that Stewart was not under a “disability” within the meaning of the Social Security Act. Stewart appealed that decision here. Stewart’s and the Commissioner’s motions for summary judgment were referred to Magistrate Judge R. Steven Whalen, who recommends that the Court affirm the ALJ’s disability determination. Stewart objects.

Having performed a de novo review of those portions of the magistrate judge’s report and recommendation to which Stewart has objected, 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b)(3); Thomas v. Arn, 474 U.S. 140, 150 (1985), the Court will adopt the recommendation of the magistrate judge for the reasons explained below.

I.

Stewart first objects that the magistrate judge erred in concluding that substantial evidence supported the ALJ’s rejection of the opinion of his treating physician, Dr. Todd Otten. (Dkt. 15, Pl.’s Obs. at 1–5.) The basis for Stewart’s objection is that his testimony, along with certain medical evidence submitted to the ALJ, showed that his COPD was severe, which, in turn, supports Dr. Otten’s opinion. (Id.) The problem for Stewart, however, is that he did not put this argument to the magistrate judge. True, in his summary-judgment brief he argued that the ALJ erred in evaluating Dr. Otten’s opinion. But Stewart did so by (1) arguing that Dr. Otten opined that he could lift only ten pounds occasionally, (2) asserting that this limitation meant that he was limited sedentary work (as opposed to the ALJ’s light-work assessment), (3) reciting two pages of law pertaining to the treating-physician rule, and (4) stating, “Here, the ALJ’s rejection of Dr. Otten’s Medical Source Statement constitutes reversible error.” (Dkt. 12, Pl.’s Mot. Summ. J. at 5–8.) Yet, in his objections, he now makes clear that the reason backing this conclusory statement was the severity of his COPD. (Pl.’s Obs. at 5.) Stewart should have provided that reason to the magistrate judge. He did not, and that disposes of his first objection. Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000) (“[I]ssues raised for the first time in objections to [a] magistrate judge’s report and recommendation are deemed waived.” (citing Marshall v. Chater, 75 F.3d 1421, 1426–27 (10th Cir. 1996)); Jones-Bey v. Caruso, No. 1:07-CV-392, 2009 WL 3644801, at *1 (W.D. Mich. Oct. 30, 2009) (“[T]he Magistrates 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.”); Mitchell v. Cnty. of Washtenaw, No. 06-13160, 2009 WL 909581, at *4 (E.D. Mich. Mar. 31, 2009) (citing cases to demonstrate that “Courts generally will not consider arguments on review that were not raised before the magistrate judge.”).

And even if the Court did not find the argument forfeited, the Court would not find it meritorious. Dr. Otten provided that he limited Stewart to lifting ten pounds because of “arthritis in hands/wrist[;] pain in knees.” (Tr. 233.) Stewart’s COPD-related evidence does not lend much support to a limitation that Dr. Otten did not premise on COPD-at least not to the extent that the ALJ treating-physician analysis warrants reversal or remand. See Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc) (noting that the substantial evidence standard “presupposes . . . a zone of choice within which the decisionmakers can go either way, without interference by the courts” (internal quotation marks omitted)); Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551 (6th Cir. 2010) (“[T]he procedural rule is not a procrustean bed, requiring an arbitrary conformity at all times. If the ALJ’s opinion permits the claimant and a reviewing court a clear understanding of the reasons for the weight given a treating physician’s opinion, strict compliance with the rule may sometimes be excused.”).

II.

Stewart’s second objection to the magistrate judge’s report and recommendation is stronger. He points out that the ALJ repeatedly drew inferences adverse to him because he had not quit smoking. (Pl.’s Objs. at 6–13.) For example, the ALJ stated:

Again, the treatment report indicated that the claimant continued his smoking abuse and marijuana use, even with his COPD condition. He had uncontrolled diabetes, which was stabilized, and the condition remained stable as reported in the March 2013 follow up office visit report of Dr. Otten (Exhibits B2F, B4F, and B5F).
Additionally, the undersigned takes judicial notice of the massive body of medical opinion regarding the effects of cigarette smoking. The United States [Court] of Appeals for the Sixth Circuit has held that a claimant was not entitled to benefits where she ignored the instructions of her physician to lose weight and to stop smoking. The Court stated that the Social Security Act did not repeal the principal of individual responsibility. Sias v. Secretary of Health and Human Services, 861 F.2d 475, 480 (6th Cir. 1988).
While the February 2013 and March 2013, office visit reports indicated a worsening dyspnea on exertion, shortness of breath, and wheezing, the medical evidence establishes that the claimant admittedly continued to smoke several cigarettes per day, which along with his obesity, undoubtedly contributes to his breathing problems (Exhibits B1F, B2F, B4F; and B5F). Then during his hearing, the claimant testified that he continues to smoke.

(Tr. 16.)[1] Stewart asserts that the ALJ’s reliance on Sias and the inferences about his credibility drawn from his continued smoking habit were error: “Ignoring the overwhelming public evidence that smoking is a legal addiction, the ALJ and the Magistrate appear to conclude that Joe Stewart’s medical conditions must not be as bad as he says; presumably, if they were, he would quit!” (Pl.’s Objs. at 8.) In support of this claim, Stewart relies on Seals v. Barnhart, which held that “due to the addictive nature of cigarettes, failing to stop smoking would not necessarily support a finding that the plaintiff’s testimony was not credible even if a link between smoking ...


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