United States District Court, W.D. Michigan, Southern Division
ORDER ADOPTING R & R
HONORABLE PAUL L. MALONEY JUDGE
matter was referred to the Honorable Phillip J. Green, United
States Magistrate Judge, who issued a Report and
Recommendation (“R & R”) on February 21,
2018. (ECF No. 20.) Plaintiff Ernesto Bustillos timely filed
objections (ECF No. 21), and the Commissioner responded. (ECF
& R recommends affirming the Commissioner's decision
denying benefits because substantial evidence supported his
conclusion that Plaintiff was not disabled and that the
Commissioner correctly applied the law in reaching his
is entitled to de novo review on the portions of the R &
R for which he has articulated clear and specific objections.
Fed.R.Civ.P. 72(b)(3). But “[O]bjections to magistrate
judges' reports and recommendations are not meant to be
simply a vehicle to rehash arguments set forth in the
petition.” Owens v. Comm'r of Soc. Sec.,
2013 WL 1304470, at *3 (W.D. Mich. Mar. 28, 2013) (quoting
Nickelson v. Warden, 2012 WL 700827, at *4 (S.D.
Ohio Mar. 1, 2012)). The Court is not obligated to address
objections that do not identify specific errors in
the magistrate judge's proposed recommendations.
Id. Here, the Court has had difficulty discerning
the Plaintiff's specific objections.
the Court is unable to tell whether Plaintiff objects to the
magistrate judge's conclusion that he waived an argument
relating to Dr. Nevin.
for Plaintiff seems to suggest that he purposefully did not
address Dr. Nevin because he did not feel it “to be
worth the Court's time[, ]” but that he will raise
similar issues in the future. (ECF No. 21 at PageID.468 n.1.)
In that case, and given Plaintiff's admission that he
“relied little, if at all, upon the opinion of Dr.
Nevin[, ] the Court concludes that the magistrate judge did
not err by concluding that the argument was waived. (ECF No.
21 at PageID.468.)
Plaintiff does make a relatively clear objection that the
magistrate judge should have concluded that the ALJ could not
rely on the opinion evidence of State Agency psychological
consultant, Dr. Leonard C. Balunas because his opinion was
rendered more than one year prior to the ALJ's decision.
However, as the magistrate judge noted, the opinion of a
non-examining source can support the conclusion of the ALJ so
long as the ALJ considers the subsequent record after the
opinion is rendered, and if the opinion remains consistent
with the record as a whole. See Brooks v. Soc. Sec.
Admin., 430 Fed.Appx. 468, 482 (6th Cir. 2011);
Blakely v. Comm'r Soc. Sec., 581 F.3d 399, 409
(6th Cir. 2009).
the ALJ clearly considered the entirety of the record,
including medical records generated after Dr. Balunas
rendered his opinion. (See ECF No. 9-2 at PageID.
38-42.) Accordingly, the magistrate judge did not err by
concluding that the ALJ properly considered Dr. Balunas'
opinion when concluding that Plaintiff was not disabled, so
this objection will be overruled.
Plaintiff takes a passing swipe at the magistrate judge's
conclusion relating to the weight given to the opinion of
Plaintiff's treating physician, Dr. Dominic Barberio.
magistrate judge reasoned that the ALJ acted appropriately by
giving the opinion of Barberio little weight for several
ALJs are not bound by conclusory statements where they appear
on “check-box forms” and are “unsupported
by explanations citing detailed objective criteria and
documentation.” Second, the magistrate judge found that
the ALJ did not violate the “treating physician
rule” because Dr. Barberio's own treatment records
did not support his opinions. Dr. Barberio found Plaintiff
“to be pleasant cooperative, coherent, organized, goal
directed, alert and oriented, and to have preserved memories,
attentiveness, and concentration.” Thus, the ALJ
concluded that Dr. Barberio's opinions were not entitled
to controlling deference.
argues that “momentary improvement does not suggest
that benefits cannot be awarded if the evidence shows a
longitudinal inability to sustain work activity.” (ECF
No. 21 at PageID.471.) He asserts that “Duration and
consistency over time are a key distinction[, ]” so the
fact that Dr. Barberio observed him to be attentive during a
visit would not contradict a finding that he was
“unable to complete a full week without interference
from psychological symptoms.” (Id. at
Plaintiff has not refuted that “ALJs are not bound by
conclusory statement of doctors, particularly where they
appear on ‘check-box forms and are unsupported by
explanations citing detailed objective criteria and
documentation.” Birgy v. Commissioner, No.
1-16-cv-1111, 2017 WL 4081528, at *5 (W.D. Mich. Sept. 15,
2017). This is fatal to Plaintiff's argument.
even if that was not the case, the ALJ's conclusion that
Dr. Barberio overstated the degree of Plaintiff's mental
dysfunction was supported by substantial evidence.
(PageID.42.) The overarching conclusion that Plaintiff's
mental dysfunctions were not severe enough to rule out work
under the ...