United States District Court, E.D. Michigan, Southern Division
MILES H. MALOZIEC, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
Steven Whalen Magistrate Judge.
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION, DENYING PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT, GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT, AFFIRMING THE FINDINGS OF THE COMMISSIONER, AND
M. LAWSON United States District Judge.
plaintiff filed the present action on February 9, 2017
seeking review of the Commissioner's decision denying his
claims for supplemental security income under Title XVI of
the Social Security Act. The case was referred to United
States Magistrate Judge R. Steven Whalen pursuant to 28
U.S.C. § 636(b)(1)(B) and E.D. Mich. LR 72.1(b)(3).
Thereafter, the plaintiff filed a motion for summary judgment
to reverse the decision of the Commissioner and award
benefits. The defendant filed a motion for summary judgment
requesting affirmance of the decision of the Commissioner.
Judge Whalen filed a report on January 16, 2018 recommending
that the defendant's motion for summary judgment be
granted, the plaintiff's motion for summary judgment be
denied, and the decision of the Commissioner be affirmed. The
plaintiff filed timely objections, and the defendant filed a
non-substantive response. The matter is now before the Court.
plaintiff, who is now 30 years old, filed his application for
supplemental security income on June 22, 2012, when he was
25. He had no previous relevant work experience, and he
alleged a disability onset date of January 1, 1998, due to
bipolar disorder, anxiety, severe depression, hypertension,
panic disorder, chronic pain syndrome, a fractured right
ankle, tendinitis, obsessive compulsive disorder, panic
attacks, hip pain due to a previous injury, non-epileptic
seizures, ticks, and a history of one epileptic seizure.
plaintiff's application was denied initially on December
4, 2012. He timely filed a request for an administrative
hearing, and on January 13, 2014, the plaintiff appeared
before Administrative Law Judge (ALJ) B. Lloyd Blair. On
February 24, 2014, ALJ Blair issued a written decision in
which he found that the plaintiff was not disabled. On June
10, 2015, the Appeals Council remanded the case to obtain
additional evidence on the plaintiff's conditions and for
further consideration of the plaintiff's maximum residual
functional capacity. On November 19, 2015, after conducting a
second hearing, ALJ Blair again determined that the plaintiff
was not disabled. On December 9, 2016, the Appeals Council
denied the plaintiff's request for review of the
ALJ's decision. The plaintiff then filed his complaint
seeking judicial review.
Blair reached his conclusion that the plaintiff was not
disabled by applying the five-step sequential analysis
prescribed by the Secretary in 20 C.F.R. § 416.920(a).
He found that the plaintiff had not engaged in substantial
gainful activity since June 22, 2012 (step one); and the
plaintiff suffered from a history of heroin abuse, alcohol
abuse, obsessive-compulsive disorder (OCD), depression, and
panic disorder, impairments which were “severe”
within the meaning of the Social Security Act (step two). He
also determined that the plaintiff's right ankle
tenosynovitis was not severe, a finding not challenged in
this case. The ALJ also found that none of those impairments
alone or in combination met or equaled a listing in the
regulations (step three).
proceeding further, the ALJ determined that the plaintiff
retained the capacity to perform a range of work at all
exertional levels, but that he had substantial nonexertional
limitations. He found that the plaintiff's work: (1) must
be limited to simple, unskilled tasks with one-to-three step
instructions; (2) cannot require concentration on
detailed/precision tasks, multitasking, reading,
computing/calculating, or problem solving; and (3) cannot
require teamwork, or working in close physical proximity to
coworkers. (4) The plaintiff should have minimal contact with
supervisors, and no contact with the public; and (5) he must
be able to work at a flexible pace without quotas mandating a
specific number of pieces per hour, or with up line or down
line coworkers dependent on the plaintiff's productivity.
four, he found that the plaintiff had no past relevant work
experience. In applying step five, the ALJ considered the
testimony of a vocational expert, who stated that even with
these limitations, the plaintiff could perform jobs such as
assembler, with 1, 500 jobs existing in southeast Michigan
and 90, 000 jobs existing nationally; inspector, with 1, 000
jobs existing in southeast Michigan and 60, 000 jobs existing
nationally; and packager, with 1, 500 jobs existing in
southeast Michigan and 60, 000 jobs existing nationally.
Based on those findings and using Medical Vocational Rule
202.20 as a framework, which applies to a person limited to
light work, the ALJ concluded that the plaintiff was not
disabled within the meaning of the Social Security Act.
plaintiff sought judicial review of this decision, and filed
a motion for summary judgment asking for an award of
benefits. He did not take issue with the conclusion that he
was not limited by exertional deficits. Instead, he argued in
essence that the ALJ's determination that the plaintiff
could perform any work continuously for eight hours per day,
five days per week was not supported by substantial evidence.
He points to the treatment records and opinions of his
treating psychiatrist, Fred Stelson, M.D., who also testified
at the administrative hearing, and insists that they were not
given the appropriate weight. He contended the ALJ
cherry-picked the evidence coming from the activity logs and
therapist Patrick Reid (who he refers to as “a Dr.
Reid”) to support the finding that the plaintiff's
own description of his deficits is not fully credible. He
also contended that the ALJ did not look to separate
twelve-month periods to see if there was disability for a
arguments were made in support of five discrete issues that
he listed in his opening brief. The magistrate judge grouped
them into two categories, addressing them in turn. He found
that the ALJ fairly considered the record as a whole and did
not misstate any facts, including the statements in the
plaintiff's father's daily activity log; other
observations by the ALJ, which the plaintiff characterized as
“snippets” from the record, were contextually
accurate; the consideration of Dr. Stelson's records and
opinions was reasonably accurate and within the proper
bounds, even for a treating source; the ALJ did not err in
the conclusions he drew from Dr. Stelson's records and
testimony, including later records dating from 2015; and the
ALJ did not discount improperly the findings of consultative
examiner Suzann Kenna. Next, the magistrate judge found that,
although the plaintiff's argument that he was entitled to
benefits for a closed period was “undeveloped, ”
the ALJ properly evaluated the records of the plaintiff's
treatment in 2012, 2013, and 2014 in finding no disability.
The magistrate judge found no fault with the ALJ's
reliance on the findings of Dr. Rose Moten, a non-examining
records-reviewer, over the later records of Dr. Stelson.
plaintiff filed timely objections. The Commissioner
responded, arguing - incorrectly - that the objections were
not specific enough and merely reprised the summary judgment
brief. The defendant offered no substantive arguments.
filing of timely objections to a report and recommendation
requires the court to “make a de novo determination of
those portions of the report or specified findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1); see also United States v. Raddatz,
447 U.S. 667 (1980); United States v. Walters, 638
F.2d 947 (6th Cir. 1981). This de novo review
requires the court to re-examine all of the relevant evidence
previously reviewed by the magistrate judge in order to
determine whether the recommendation should be accepted,
rejected, or modified in whole or in part. 28 U.S.C. §
filing of objections provides the district court with the
opportunity to consider the specific contentions of the
parties and to correct any errors immediately, ”
Walters, 638 F.2d at 950, enabling the court
“to focus attention on those issues-factual and
legal-that are at the heart of the parties' dispute,
” Thomas v. Arn, 474 U.S. 140, 147 (1985). As
a result, “‘[o]nly those specific objections to
the magistrate's report made to the district court will
be preserved for appellate review; making some objections but
failing to raise others will not preserve all the objections
a party may have.'” McClanahan v. Comm'r of
Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (quoting
Smith v. Detroit Fed'n of Teachers Local 231,
829 F.2d 1370, 1373 (6th Cir. 1987)).
Court has reviewed the file, the report and recommendation,
the plaintiff's objections, and the Commissioner's
response and has made a de novo review of the