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Carter v. Burwell

United States District Court, W.D. Michigan, Southern Division

January 9, 2018

Rosaline Carter, Plaintiff,
v.
Sylvia Mathews Burwell, Defendant.

          ORDER ADOPTING REPORT AND RECOMMENDATION, DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, AND AFFIRMING DECISION OF THE MEDICARE APPEALS COUNCIL

          Paul L. Maloney United States District Judge

         Plaintiff Rosaline Carter filed this lawsuit seeking judicial review of the final decision of the Medicare Appeals Council (MAC) denying her benefits.[1] The magistrate judge issued a report recommending the decision be affirmed. (ECF No. 26.) Plaintiff filed objections. (ECF No. 27.)

         After being served with a report and recommendation (R&R) issued by a magistrate judge, a party has fourteen days to file written objections to the proposed findings and recommendations. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). A district court judge reviews de novo the portions of the R&R to which objections have been filed. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Only those objections that are specific are entitled to a de novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per curiam).

         Plaintiff advances three objections, with multiple arguments under each. The Court has endeavored to address each argument de novo.

         Objection 1 - Deference Should Not Be Given When the Interpretation Is Unreasonable.

         A. Plaintiff argues she received extensive treatment for sarcoidosis prior to the specific procedure at issue in this lawsuit and has continued to receive treatment for sarcoidosis since the procedure at issue. Plaintiff asserts her treatment for sarcoidosis was reimbursed by Medicare as early as 2005.

         Plaintiff's objection is overruled. Her medical history is not in dispute. Her medical treatment since the procedure not relevant. Plaintiff has not identified an error of fact or an omission in the R&R that would require correction.

         B. Plaintiff objects to the portion of the R&R that identifies the billing codes used as part of her request for reimbursement. Plaintiff argues that the decision was unreasonable because a computer made the decision to deny benefits based on the billing codes, rather than on a consideration of "substantial evidence."

         Plaintiff's objection is overruled. The magistrate judge's recitation of the facts is accurate. Plaintiff did use these particular billing codes when requesting reimbursement. Plaintiff appealed the decision denying reimbursement. The Administrative Law Judge (ALJ) and then the MAC both rejected the request for reimbursement by considering the statutory exclusion and exceptions in light of the services provided to Plaintiff. The ALJ and MAC both made the decision based on the evidence in the record and the specific statutory exclusion, not on the codes used to identify the services provided.

         C. Plaintiff objects base on the MAC and the R&R's alleged failure to consider the affidavits of Dr. Downey and Dr. Kazor.

         Plaintiff's objection is overruled. The MAC's review of the ALJ's decision is limited to consideration of the evidence before the ALJ. See 42 C.F.R. § 405.1122(a)(1). Dr. Downey testified, by telephone, at the hearing before the ALJ. In its opinion, the MAC acknowledged the two affidavits had been submitted by counsel for Plaintiff. (MAC Decision PageID.9.)

         Objection 2 - Standard of Review Does Not Properly Apply to the Facts

         The Magistrate Judge agreed with the MAC that the ALJ's error - finding no treatment recommendation for sarcoidosis lesion by the University of Michigan - was harmless. Plaintiff objects.

         Plaintiff's objection is overruled. This Court reviews the MAC's decision, not the ALJ's decision. The MAC found the error harmless, as the "statement added little more than historical background" and the "absence or presence of any preliminary University-generated services had no bearing on the availability of coverage for those services." (MAC Decision PageID.11.) The MAC reached its ...


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