United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER OVERRULING PLAINTIFF'S
OBJECTIONS AND ADOPTING MAGISTRATE JUDGE'S REPORT AND
MARIANNE O. BATTANI, United States District Judge.
the Court are objections filed by Plaintiff Gail Ann Fox
(Dkt. 22) to Magistrate Judge R. Steven Whalen's December
8, 2017 Report and Recommendation (“R & R”)
(Dkt. 21). The R & R recommends that the Court deny
Plaintiff's motion for summary judgment (Dkt. 16), grant
the Defendant Commissioner of Social Security's motion
for summary judgment (Dkt. 20), and affirm the challenged
decision of the Defendant Commissioner. For the reasons
discussed below, the Court OVERRULES
Plaintiff's objections and ADOPTS the
Magistrate Judge's R & R in its entirety.
STATEMENT OF FACTS
party objects to the Magistrate Judge's summary of the
background facts concerning Plaintiff's claim for Social
Security disability insurance benefits and supplemental
security income, her medical history, and her testimony at
the administrative hearing. Accordingly, the Court adopts
these unchallenged portions of the R & R.
STANDARD OF REVIEW
district court must conduct a de novo review of any
portion of a magistrate judge's R & R to which a
party objects. 28 U.S.C. § 636(b)(1). The district court
“may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1). The requirement of
de novo review “is a statutory recognition
that Article III of the United States Constitution mandates
that the judicial power of the United States be vested in
judges with life tenure.” United States v.
Shami, 754 F.2d 670, 672 (6th Cir. 1985). Accordingly,
Congress enacted 28 U.S.C. § 636(b)(1) to “insure[
] that the district judge would be the final arbiter”
of matters referred to a magistrate judge. Flournoy v.
Marshall, 842 F.2d 875, 878 (6th Cir. 1988).
Court must affirm the decision of the Defendant Commissioner
so long as “it is supported by substantial evidence and
was made pursuant to proper legal standards.”
Rogers v. Commissioner of Social Security, 486 F.3d
234, 241 (6th Cir. 2007). “Substantial evidence is
defined as more than a scintilla of evidence but less than a
preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Rogers, 486 F.3d at 241 (internal quotation marks
and citation omitted). If the Commissioner's decision is
supported by substantial evidence, “it must be affirmed
even if the reviewing court would decide the matter
differently, and even if substantial evidence also supports
the opposite conclusion.” Cutlip v. Secretary of
Health & Human Services, 25 F.3d 284, 286 (6th Cir.
1994) (citations omitted).
determining whether the Defendant Commissioner's factual
findings are supported by substantial evidence, the Court
confines its examination to the administrative record
considered as a whole. Wyatt v. Secretary of Health &
Human Services, 974 F.2d 680, 683 (6th Cir. 1992)
(internal quotation marks and citation omitted). There is no
requirement, however, that either the Commissioner or this
Court must discuss every piece of evidence in the record.
Kornecky v. Commissioner of Social Security, No.
04-2171, 167 F. App'x 496, 508 (6th Cir. Feb. 9, 2006).
Further, this Court does not “try the case de novo,
resolve conflicts in evidence, or decide questions of
credibility.” Bass v. McMahon, 499 F.3d 506,
509 (6th Cir. 2007).
Plaintiff purports to advance multiple objections to the R
& R, the Defendant Commissioner aptly observes in
response that these objections all rest upon the purported
failure of the Administrative Law Judge (“ALJ”)
to account for the record of Plaintiff's April 15, 2015
visit to the office of psychiatrist Bryan S. Weinstein, D.O.
During this visit, Dr. Weinstein found that Plaintiff had
poor concentration, exhibited a depressed and anxious mood,
and slept very poorly. (Admin. Record at 380.) This record
also includes a handwritten note stating “letter to
continue disability.” (Id. at 381.) Plaintiff
contends that the ALJ failed to properly consider these
findings by Dr. Weinstein, resulting in a flawed assessment
of her credibility.
threshold matter, Defendant correctly points out that
Plaintiff did not even mention this April 15, 2015 visit to
Dr. Weinstein in her underlying motion for summary judgment,
much less advance any argument concerning the ALJ's
purported failure to consider this evidence. Accordingly,
Plaintiff cannot raise this issue for the first time in her
objections to the R & R. See Murr v. United
States, 200 F.3d 895, 902 n.1 (6th Cir. 2000); Swain
v. Commissioner of Social Security, No. 09-3500, 379 F.
App'x 512, 517-18 (6th Cir. June 7, 2010).
assuming this challenge has not been waived, Plaintiff does
not explain how the ALJ's failure to expressly address
one particular treatment note in a voluminous record might
operate to deprive the ALJ's decision of substantial
evidentiary support. First, while Plaintiff characterizes
this treatment note as reflecting Dr. Weinstein's finding
that she was “disabled, ” (Dkt. 22,
Plaintiff's Objections at 1), the Defendant Commissioner
observes that Dr. Weinstein's handwritten reference to
“continue[d] disability” does not qualify as a
medical opinion under the pertinent Social Security
regulations. See 20 C.F.R. §§
404.1527(d)(1), 416.927(d)(1). Next, Defendant points out
that the ALJ did, in fact, cite to other treatment notes
prepared by Dr. Weinstein, (see Admin. Record at
26), indicating that the ALJ properly considered Dr.
Weinstein's records and findings as a whole. As the Sixth
Circuit has emphasized, it is “well settled” that
an ALJ “can consider all the evidence without directly
addressing in his written decision every piece of evidence
submitted by a party.” Kornecky, 167 F.
App'x at 507-08 (internal quotation marks and citation
Plaintiff fails to suggest how this single April 15, 2015
treatment note could lead the Court to reject the Magistrate
Judge's determination, based upon an independent review
of the record, that “[t]he ALJ's conclusions
regarding Plaintiff's psychological limitations are . . .
well supported.” (R & R at 15.) Rather, having
reviewed the R & R's discussion of this ...