United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER ADOPTING THE REPORT AND
RECOMMENDATION , DENYING PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT , AND GRANTING DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT 
STEPHEN J. MURPHY, III JUDGE
appeals Defendant's decision denying her disability
insurance benefits under the Social Security Act. The Court
referred the matter to the magistrate judge, and the parties
filed cross-motions for summary judgment. The magistrate
judge then issued a report and recommendation, and Plaintiff
objected. For the reasons below, the Court will adopt the
report and recommendation over Plaintiff's objection,
deny Plaintiff's motion for summary judgment, and grant
Defendant's motion for summary judgment.
Rule 72(b) governs the review of a magistrate judge's
report, and the review varies depending on whether a party
objects. The Court need not undertake any review of portions
of a report to which no party has objected. Thomas v.
Arn, 474 U.S. 140, 153 (1985). De novo review is
required, however, if the parties "serve and file
specific written objections to the proposed findings and
recommendations." Fed.R.Civ.P. 72(b)(2). When performing
de novo review, "[t]he district judge may accept,
reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate
judge with instructions." Fed.R.Civ.P. 72(b)(3).
reviewing a case under 42 U.S.C. § 405(g), the Court
"must affirm the Commissioner's conclusions absent a
determination that the Commissioner has failed to apply the
correct legal standards or has made findings of fact
unsupported by substantial evidence in the record."
Longworth v. Comm'r Soc. Sec. Admin., 402 F.3d
591, 595 (6th Cir. 2005) (quotations omitted). Substantial
evidence consists of "more than a scintilla of evidence
but less than a preponderance" such that a
"reasonable mind might accept [it] as adequate to
support a conclusion." Rogers v. Comm'r of
Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quotations
omitted). An ALJ may consider the entire body of evidence
without directly addressing each piece in his decision. 167
Fed.Appx. 496, 507-08 (6th Cir. 2006). And an ALJ need not
"make explicit credibility findings as to each bit of
conflicting testimony, so long as his factual findings as a
whole show that he implicitly resolved such conflicts."
worked as a hairstylist, nail technician, and home healthcare
aid for her mother and grandmother until July 2013, when she
fractured her tibia and fibula. ECF 9-2, PgID 70-73. Because
of her injury, Plaintiff sought disability benefits. When
making a disability determination, an ALJ performs a
five-step sequential analysis. Walters v. Comm'r of
Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (citing 20
C.F.R. § 404.1520). At step five, the ALJ here
determined that Plaintiff is not disabled. ECF 9-2, PgID 59.
That means Plaintiff cannot perform her previous work because
of a severe impairment, but that she can adjust to other
work. See 20 C.F.R. § 404.1520(a)(4)(i)-(v). After
careful review, the magistrate judge agreed with the
ALJ's analysis. ECF 14, PgID 444.
objects, but her argument is difficult to follow. Her opening
line suggests that she believes the magistrate judge erred by
not treating Dr. Harold Nims as her treating physician. ECF
15, PgID 454. That would be significant because, for claims
filed before March 27, 2017, a treating physician's
opinion is controlling in certain circumstances. 20 C.F.R.
§ 404.1527(c)(2). But a few paragraphs later, Plaintiff
admits that Dr. Nims is not her treating physician. See ECF
15, PgID 455 ("A consultative examiner obviously does
not have [sic] ongoing treatment relationship with a claimant
[sic] anytime."); 20 C.F.R. § 404.1527(a)(2). So it
seems that Plaintiff's objection resolves itself.
Fed.R.Civ.P. 72(b)(2) (requiring a party to "file
specific written objections").
interest of finality, however, the Court will give Plaintiff
the benefit of the doubt. Near the end of her objection,
Plaintiff states that "it is submitted that Dr. Nims
[sic] opinion should not be discounted because he is a
consultative examiner." ECF 15, PgID 456. And Dr.
Nims's purported opinion is that Plaintiff was
"capable of performing non-strenuous, sedentary work
with the ability to elevate her right leg as necessary."
Id. at 454. Plaintiff again does not connect the
dots, but she eventually states that "[t]he vocational
expert testified that all work would be precluded by an
individual's need to elevate the right lower extremity to
waist height." Id. at 457. Her argument thus
seems to be: if the ALJ adopted Dr. Nims's opinion that
Plaintiff needed to elevate her leg, then the ALJ should have
found that Plaintiff could not adjust to any work.
that argument is not persuasive. As the magistrate judge
thoroughly explained, an ALJ should consider all of the
evidence-not just the consultative examiner's opinion-
when determining a claimant's residual functional
capacity. See Coldiron v. Comm'r of Soc. Sec.,
391 Fed.Appx. 435, 439 (6th Cir. 2010). And when weighing a
medical opinion, six factors are pertinent: (1) whether the
opining medical professional examined the claimant, (2) the
treatment relationship between the opining medical
professional and the claimant; (3) the presentation of
relevant evidence that supports the medical opinion; (4) the
consistency of the medical opinion with the record as a
whole; (5) whether the opining medical professional is
operating within his specialty; and (6) other factors. 20
C.F.R. § 404.1527(c).
those factors here, the ALJ properly weighed Dr. Nims's
opinion. First, Dr. Nims is a D.O., not a specialist. And
although he examined Plaintiff, he did so only once. Thus,
there was a limited relationship. On the other hand, Dr.
Nims's opinion was supported by relevant evidence:
Plaintiff reportedly had constant swelling and edema in the
right foot and ankle on the date of examination. But, there
are some inconsistencies between Dr. Nims's opinion and
the record as a whole. Although there are two reports of mild
or moderate swelling, ECF 9-7, PgID 243, 288, there are at
least four times that Plaintiff did not report swelling, ECF
9-8, PgID 356, 371-76. The whole record therefore suggests
that Plaintiff did not suffer from constant swelling. And
even if she did, the few reports of swelling are not coupled
with leg elevation restrictions.
Plaintiff failed to file an adequate objection. But even
liberally construing her objection, Plaintiff's objection
fails because the ALJ properly weighed Dr. Nims's
it is hereby ORDERED that the Magistrate
Judge's Report and ...