United States District Court, E.D. Michigan, Southern Division
DEMARIO G. HIGHT, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER OVERRULING OBJECTIONS , ADOPTING REPORT AND
RECOMMENDATION , DENYING PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT , AND GRANTING DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT 
STEPHEN J. MURPHY, III United States District Judge.
Commissioner of the Social Security Administration
("SSA") denied the application of DeMario G. Hight
("Hight") for supplemental security income and
disability insurance benefits in a decision issued by an
Administrative Law Judge ("ALJ"). ECF 9-2, PgID
38-48. After the SSA Appeals Council declined to review the
ruling, Hight appealed. ECF 1. The Court referred the matter
to Magistrate Judge Patricia T. Morris and the parties filed
cross-motions for summary judgment. ECF 3, 12, 14. The
magistrate judge issued a Report and Recommendation
("Report") advising the Court to deny Hight's
motion and grant the Commissioner's motion. ECF 16. Hight
filed timely objections to the Report. ECF 17. After
examining the record and considering Hight's objections
de novo, the Court concludes that his arguments lack merit.
Accordingly, the Court will adopt the Report's findings,
deny Hight's motion for summary judgment, grant the
Commissioner's motion for summary judgment, and dismiss
Report properly details the events giving rise to Hight's
action against the Commissioner. ECF 16, PgID 672-73, 675-83.
The Court will adopt that portion of the Report. Critically,
Hight's objections all relate to "whether the ALJ
should have considered a medical source opinion from Dr.
Andrew Thomas, his treating physician, that was
submitted" after the hearing but before the ALJ issued
his decision. Id. at 679. Hight's counsel had
written a letter to the ALJ a week before the administrative
hearing stating that she was "still awaiting
records/evidence from Dr. Andrew Thomas." Id.
Rule 72(b) governs the review of a magistrate judge's
report. A district court's standard of review depends
upon whether a party files objections. 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,
149-50 (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). In conducting a 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.
who receive an adverse final decision from the Commissioner
of Social Security may appeal the decision to a federal
district court. 42 U.S.C. § 405(g). When reviewing a
case under § 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) (citation omitted). Substantial evidence consists of
"more than a scintilla of evidence but less than a
preponderance" such that a "reasonable mind might
accept [the evidence] 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. Kornecky v.
Comm'r of Soc. Sec., 167 Fed.Appx. 496, 508 (6th
Cir. 2006). "Nor must an ALJ 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." Id. (citation
raises three objections. The Court will first provide a brief
overview of the legal framework governing the submission of
evidence for social security proceedings. Then, the Court
will address each of Hight's objections in turn.
a social security proceeding before an ALJ, the parties
submit evidence for review. "Each party must make every
effort to ensure that the administrative law judge receives
all of the evidence and must inform [the Commissioner] about
or submit any written evidence . . . no later than 5 business
days before the date of the scheduled hearing"-the
so-called "5-day Rule." 20 C.F.R. §
416.1435(a). If a claimant does not comply with the 5-day
Rule, "the administrative law judge may decline to
consider or obtain the evidence" unless an exception
exceptions excusing the failure to timely submit evidence are
relevant here. First, the ALJ will excuse a tardy submission
if the claimant "actively and diligently sought evidence
from a source and the evidence was not received or was
received less than 5 business days prior to the
hearing." 20 C.F.R. § 416.1435(b)(3)(iv). Second,
the ALJ will excuse failure to comply with the 5-day Rule if
the Commissioner's actions misled the claimant
("misleading-action exception"). 20 C.F.R. §
Hight objects that the Report erred in finding that
"Plaintiff did not properly inform the ALJ" about a
letter from Dr. Thomas, who treated Plaintiff. ECF 17, PgID
709. One week before the hearing, Hight sent a letter to the
ALJ and advised that he was "still awaiting
records/evidence from Dr. Andrew Thomas, [his] current
primary care provider." ECF 9-6, PgID 274. Then, during
the hearing, Hight reiterated that he was waiting for records
from Dr. Thomas. ECF 9-2, PgID 84-85. Shortly after the
hearing, Hight "submitted medical records from Dr.
Thomas." ECF 12, PgID 629. ...