United States District Court, W.D. Michigan, Southern Division
ORDER ADOPTING REPORT AND RECOMMENDATION
J. QUIST UNITED STATES DISTRICT JUDGE.
Theodore Kamerling, filed a complaint pursuant to 42 U.S.C.
§§ 405(g) and 1383(c) seeking judicial review of
the Commissioner of Social Security’s final decision
denying Kamerling’s claim for disability insurance
benefits and supplemental security benefits. (ECF No. 1.)
Kamerling raised the following issues in his initial brief:
(1) the Administrative Law Judge (ALJ) did not take into
account CPP (concentration, persistence and pace) limitations
that he had found; (2) the ALJ mishandled Dr. Sheill’s
report; (3) the ALJ mishandled Plaintiff’s complaints;
and (4) the ALJ failed to address regional jobs. (ECF No. 18
9, 2019, Magistrate Judge Ray Kent issued a Report and
Recommendation (R & R), recommending that the Court
reject Kamerling’s arguments and affirm the
Commissioner’s decision. First, as to the asserted
inconsistency between the ALJ’s findings at step three
of the five-step sequential analysis, see 20 C.F.R.
§404.1520, and the ALJ’s mental residual
functional capacity (RFC) finding-that Kamerling is limited
to simple, routine tasks with short, simple instructions-the
magistrate judge observed that because step three findings
differ from the RFC determination, which involves a more
detailed analysis, the ALJ’s analysis was not
internally inconsistent. (ECF No. 24 at PageID.678–79.)
Second, regarding the April 22, 2014, opinion of consultative
medical examiner Dr. Sheill, the magistrate judge concluded
that the ALJ properly weighed and considered Dr.
Sheill’s opinion. (Id. at PageID. 681.) Third,
the magistrate judge concluded that the ALJ properly
evaluated Kamerling’s subjective complaints, rejecting
Kamerling’s argument that the ALJ was required to
explain why each statement Kamerling made during the
administrative hearing was inconsistent with the medical and
other evidence in the record. (Id. at
PageID.683–85.) Finally, the magistrate judge concluded
that Kamerling waived any objection to the sufficiency of the
vocational expert’s (VE) testimony, but in any event,
he failed to demonstrate that the ALJ erred in relying on the
VE’s testimony about the number of jobs existing on a
national basis. (Id. at PageID.686–87.)
has filed Objections to the R & R, asserting that the
magistrate judge erred in his analysis of all four issues.
The Commissioner has filed a response, arguing that the Court
should adopt the R & R.
to 28 U.S.C. § 636(b)(1), this Court is required to
review de novo those portions of the R & R to
which specific objections have been made. The Court may
accept, reject, or modify any or all of the magistrate
judge’s findings or recommendations. Id. After
reviewing the R & R, Kamerling’s Objections, the
Commissioner’s response, and the pertinent portions of
the administrative record, the Court will overrule
Kamerling’s Objections and adopt the R & R as the
opinion of the Court.
the Court notes that Kamerling’s Objections, in large
part (although not completely) repeat his arguments to the
magistrate judge. Objections of this nature are improper. A
party who objects to a report and recommendation must
“specifically identify the portions of the proposed
findings, recommendations or report to which objections are
made and the basis for such objections.” W.D. Mich.
LCivR 72.3(b). Objections that restate arguments already
presented to the magistrate judge are improper,
Coleman-Bey v. Bouchard, 287 F. App’x 420, 422
(6th Cir. 2008) (citing Brumley v. Wingard, 269 F.3d
629, 647 (6th Cir. 2001), as are those that offer only
general objections to the report and recommendation.
Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995).
the Court could overrule Kamerling’s Objections solely
on the basis that they are procedurally improper, the Court
has nonetheless reviewed the portions of the arguments
addressing the R & R and, as explained below, concludes
that they lack merit.
to Take CPP Limitations into Account
magistrate judge fully and properly explained why the
ALJ’s mental RFC was not required to parrot the
ALJ’s CPP findings at step three of the sequential
analysis: “step three findings are not the same as the
RFC determination.” (ECF No. 24 at PageID.678.) Courts
in this district have consistently rejected the very same
argument that Kamerling raises. In Hycoop v. Commissioner
of Social Security, No. 1:15-CV-795, 2016 WL 400794, at
*3–4 (Aug. 29, 2016), the court noted:
Plaintiff’s claim conflates the analysis conducted at
separate points of the ALJ’s decision. . . . Plaintiff
is attempting to take a portion of the ALJ’s step three
finding out of context and substitute it for the ALJ’s
factual finding at step four. It is well established . . .
that the paragraph B criteria used in determining whether a
claimant meets or equals a listed impairment “are not
an RFC assessment, ” but rather are “used to rate
the severity of mental impairment(s) at steps 2 and 3 of the
sequential evaluation process.”
(quoting SSR 96-8p, 1996 WL 374184, at *4 (S.S.A. July 2,
2996)); see also Darling v. Comm’r of Soc.
Sec., No. 1:14-CV-660, 2015 WL 6758767, at *4 (W.D.
Mich. Nov. 5, 2015) (“The ALJ’s findings at
earlier steps in the sequential analysis do not undermine her
RFC determination.”); Collier v. Comm’r of
Soc. Sec., No. 1:11-CV-1144, 2013 WL 4539631, at *6
(W.D. Mich. Aug. 27, 2013) (same). As substantial evidence
otherwise supported the ALJ’s mental RFC, there was no
R & R, the magistrate judge first noted that, because Dr.
Sheill was not a treating source, the “good
reasons” requirement does not apply to the ALJ’s
explanation of the weight he gave Dr. Sheill’s opinion.
See Smith v. Comm’r of Soc. Sec., 482 F.3d
873, 875 (6th Cir. 2007) (“Claimants are entitled to
receive good reasons for the weight accorded their treating
sources independent of their substantive right to receive
disability benefits.”). The magistrate judge then noted
that the ALJ accepted Dr. Sheill’s opinion that
Kamerling could not perform manual labor, but could perform
more than sedentary work, with a question of whether
Kamerling could sustain it long term. (Id. at
PageID.681.) Initially, the Court notes that Dr.
Sheill’s statement that “[i]t may be that
sedentary work is all [Kamerling] could handle long-term,
” (PageID.580), is somewhat ambiguous. That is, it is
not clear whether Dr. Sheill was opining that Kamerling was
presently limited to sedentary work or that he retained the
capacity to perform light work but could only perform
sedentary work long term. The ALJ interpreted the statement
in the former sense, while the magistrate judge apparently
interpreted the statement in the latter sense.
event, the ALJ properly weighed Dr. Sheill’s opinion,
as required by 20 C.F.R. §§ 404.1527(c) and
416.929(c), and adequately explained his decision to assign
it only partial weight-adopting Dr. Sheill’s opinion
that Kamerling could not perform manual labor but concluding
that the evidence supported an RFC for light work. Contrary
to Kamerling’s argument, the ALJ did not “play
doctor” by finding that Dr. Sheill’s observations
that Kamerling had only a slight limp, was able to walk at a
moderate pace, and appeared “reasonably
vigorous”-in combination with Kamerling’s
statement to the consultative psychological examiners
“that he walks around his house for exercise and tries
to stay limber” and the examiners’ observation
that Kamerling “walked quickly”-supported a
finding that Kamerling had the capacity to do light work with
restrictions. (ECF No. 11-2 at PageID.44.) This finding was
consistent with State Agency Consultant Eric VanderHaagen,
D.O., ’s opinion that Kamerling could perform light
work, which the ALJ accorded “some weight, ” as
well as other evidence in the record. (Id. at