UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GLENDA J. BARR,

Plaintiff,

v. Case No. 14-13477

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

 /

OPINION AND ORDER (1) OVERRULING PLAINTIFF’S OBJECTIONS;

(2) ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION;

(3) GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT;

AND (4) DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Plaintiff Glenda Barr appeals from Defendant Commissioner of Social Security’s

determination that she is not entitled to disability insurance benefits under 42 U.S.C. §

405(g). Magistrate Judge David R. Grand issued a Report and Recommendation

advising the court to grant Defendant’s Motion for Summary Judgment and deny

Plaintiff’s Motion for Summary Judgment. (Dkt. # 20.) Plaintiff timely filed objections to

the R. & R. (Dkt. # 21), to which Defendant responded (Dkt. # 22). After reviewing the

R. & R. and the parties’ briefs, the court concludes that a hearing is unnecessary. See

E.D. Mich. LR 7.1(f)(2). For the reasons stated below and in the well-reasoned R. & R.,

the court will overrule Plaintiff’s objections and adopt the R. & R.

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I. STANDARD

A. Timely Objections and De Novo Review

The filing of timely objections to an R. & R. requires the court to “make a de novo

determination of those portions of the report or specified findings or recommendations

to which objection is made.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz,

447 U.S. 667 (1980); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This de

novo review requires the court to re-examine all of the relevant evidence previously

reviewed by the magistrate judge in order to determine whether the recommendation

should be accepted, rejected, or modified in whole or in part. 28 U.S.C. § 636(b)(1).

“The filing of objections provides the district court with the opportunity to consider

the specific contentions of the parties and to correct any errors immediately,” Walters,

638 F.2d at 950, enabling the court “to focus attention on those issues—factual and

legal—that are at the heart of the parties’ dispute,” Thomas v. Arn, 474 U.S. 140, 147

(1985). As a result, “‘[o]nly those specific objections to the magistrate’s report made to

the district court will be preserved for appellate review; making some objections but

failing to raise others will not preserve all the objections a party may have.’” 

McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (quoting Smith

v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987)).

B. Substantial Evidence Standard

In a social security case, the court “must affirm the Commissioner’s decision if it

‘is supported by substantial evidence and was made pursuant to proper legal

standards.’” Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 651 (6th Cir. 2009)

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(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42

U.S.C. § 405(g). When, as here, the Appeals Council declines review of a plaintiff’s

claim, “the decision of the ALJ becomes the final decision of the [Commissioner].” 

Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993).

The court’s review of the record for substantial evidence is quite deferential to the

ALJ. “Substantial evidence is more than a scintilla of evidence but less than a

preponderance and is such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion,” Pittsburgh & Conneaut Dock Co. v. Dir., Office of

Workers’ Comp. Programs, 473 F.3d 253, 259 (6th Cir. 2007), “even if that evidence

could support a decision the other way,” Casey, 987 F.2d at 1233. Moreover, the court

bases its review on the entire administrative record, not just what the ALJ cited. Heston

v. Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). “Even if supported by

substantial evidence, however, a decision of the Commissioner will not be upheld where

the [Social Security Administration] fails to follow its own regulations and where that

error prejudices a claimant on the merits or deprives the claimant of a substantial right.”

Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007) (citing Wilson v.

Comm’r of Soc. Sec., 378 F.3d 541, 546-47 (6th Cir. 2004)).

II. DISCUSSION

A. Objection One

Plaintiff objects to “the Magistrate Judge’s conclusion that substantial evidence

supports the ALJ’s Step Three finding.” (Pl.’s Obj. at 2.) However, it is difficult to

determine what Plaintiff’s objection actually is, because, in arguing the objection,

Plaintiff makes two other arguments. At one point, Plaintiff argues, “[r]egardless of how

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the ALJ might ultimately decide Plaintiff’s claims, it is unreasonable to conclude that he

would have necessarily would have [sic] determined that Plaintiff did not medically equal

Listing 1.04(A).” (Id. (emphasis in original).) In the next sentence, Plaintiff argues,

“[b]ecause the ALJ failed to provide any sort of detailed explanation at this Step, it is

impossible to determine if substantial evidence supports his conclusions.” (Id.) As

explained below, these are three different arguments, and the court will address each in

turn.

The first objection is that there was not substantial evidence to support the ALJ’s

finding that Plaintiff failed to meet or medically equal Listing 1.04(A). The court

disagrees. The Magistrate Judge throughly detailed the evidence supporting this finding.

(R. & R. at 10-16.) To meet Listing 1.04(A) a claimant must show “evidence of nerve

root compression.” 20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 1.04A; see also Steagall v.

Comm’r of Soc. Sec., 2009 WL 806634, at *5 (S.D. Ohio Mar. 25, 2009) (treating

physician’s opinion that plaintiff met Listing 1.04A was insufficient where medical

records stated there was no nerve root compression.) The record contained substantial

evidence indicating there was no nerve root compression. Specifically, Plaintiff’s 2008

lumbar spine MRI showed a “small central herniation at L5-S1 without impingement,”

(Dkt. # 12-7, Pg. ID 380), a November 2008 MRI of the thoracic spine was negative for

any herniated disc or cord compression, (Id. at Pg. ID 379), and a May 2009 CT scan

showed “nerve roots existing [in the] usual fashion,” (Id. at Pg. ID 367). Additionally, the

above evidence and other record evidence showing that Plaintiff had a normal gait and

range of motion, (Dkt. # 12-7, Pg. ID 226-27), was substantial evidence for the ALJ’s

finding that Plaintiff’s condition did not medically equal Listing 1.04(A). (R. & R. at 16.)

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Some evidence to the contrary existed, such as Dr. Lee’s opinion that Plaintiff

“likely has pinching of the S1 nerve root.” (Id. at Pg. ID 359.) However, it is not this

court’s job to re-weigh the evidence. The court can go no further than satisfying itself

that the ALJ fell within the “zone of choice” supported by substantial evidence, see

Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009), and the court is so

satisfied. 

The second possible argument is that it was “unreasonable to conclude that [the

ALJ] would have necessarily would have [sic] determined that Plaintiff did not medically

equal Listing 1.04(A).” (Pl.’s Obj. at 2 (emphasis in original).) Different than arguing a

lack of substantial evidence, here Plaintiff seems to imply that the ALJ completely failed

to make a finding on medical equivalency and that the Magistrate Judge unreasonably

substituted his own judgment in order to fill the gap. This argument fails, also. The ALJ

stated, “I find that the medical evidence does not support a finding that these

impairments meet or, individually or in combination, medically equal the criteria of

[listing 1.04].” (Dkt. # 12-2, Pg. ID 72 (emphasis added).) The ALJ made the finding, and

the Magistrate Judge identified substantial evidence for that finding.

Third, Plaintiff contends, “[b]ecause the ALJ failed to provide any sort of detailed

explanation at this Step, it is impossible to determine if substantial evidence supports

his conclusions.” (Pl.’s Obj. at 2.) To follow the rabbit further down the hole, this

argument could be interpreted in two ways. First, Plaintiff may be making another

substantial-evidence argument. If so, the argument fails because it misapprehends the

substantial evidence standard. The court bases its review on the entire administrative

record, not just what the ALJ cited. Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535

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(6th Cir. 2001). Thus, an ALJ’s scant citations to the record at Step Three do not “make

it impossible to determine if substantial evidence supports his conclusions.”

Alternatively, Plaintiff might be arguing that the Social Security regulations provide a

procedural right to a fulsome explanation of a Step Three conclusion, and the ALJ

violated that right. This argument fails, too. Unlike 20 C.F.R. § 404.1527(c)(2), which

requires an ALJ to “give good reasons” for rejecting a treating physician’s opinion, 20

C.F.R. § 404.1520(a)(3) requires only that the ALJ “consider all evidence in [the

claimant’s] case record.” Accordingly, the Sixth Circuit has declined to extend the

procedural protections of the “good reason” requirement to the Step Three analysis.

Forrest v. Comm’r of Soc. Sec., 591 F. App’x 359, 365 (6th Cir. 2014) (citing Bowie v.

Comm’r of Soc. Sec., 539 F.3d 395, 400 (6th Cir. 2008) (distinguishing requirement that

ALJ “consider” from requirement that he “give good reasons”). Thus, both versions of

Plaintiff’s third argument fail. 

B. Objection Two

Plaintiff objects “[t]o the Magistrate Judge’s conclusion that the ALJ gave ‘good

reasons’ for discounting Dr. Richardson’s opinion.” (Pl.’s Obj. at 3.) When an ALJ

declines to give a treating physician’s opinion controlling weight, “an ALJ must apply

certain factors—namely, the length of the treatment relationship and the frequency of

examination, the nature and extent of the treatment relationship, supportability of the

opinion, consistency of the opinion with the record as a whole, and the specialization of

the treating source.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004);

see also 20 C.F.R. § 404.1527(c)(2). Procedurally, the ALJ must give “specific reasons

for the weight given the treating source’s medical opinion, supported by evidence in the

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case record, and must be sufficiently specific to make clear to any subsequent

reviewers the weight the adjudicator gave to the treating source’s medical opinion and

the reasons for that weight.” Wilson, 378 F.3d at 544 (citing SSR, 96-2p, 1996 WL

374188, at *5 (1996)). The ALJ did just that. First the ALJ thoroughly explaining the

relationship between Plaintiff and Dr. Richardson, enumerating their various

appointments and the resulting diagnoses. The ALJ then turned to Dr. Richardson’s

opinion. He outlined the statements Dr. Richardson made in the residual functional

capacity questionnaire and then stated:

I give little weight to Dr. Richardson’s opinion. His own treatment notes do

not support such a restrictive residual functional capacity as they

consistently showed that the claimant had paraspinal muscle tenderness

and mildly reduced range of motion in her lumbar spine. Moreover, his

opinion is not consistent with the record as a whole, which showed that

the claimant reported pain at a four and a two on a scale of one to ten.

(Dkt. # 12-2, Pg. ID 75.) The court agrees with the Magistrate Judge that this analysis

meets the Wilson standard. The ALJ addressed the nature and extent of the doctorpatient relationship and also explained why he believed Dr. Richardson’s findings were

inconsistent with the record and unsupportable.

Indeed, the Sixth Circuit has upheld determinations of this kind based on less

analysis. In Bledsoe v. Barnhart, 165 F. App’x 408, 412 (6th Cir. 2006), the ALJ

reasoned that the treating physician’s conclusions are “not well supported by the overall

evidence of record and are inconsistent with other medical evidence of record.” The

Sixth Circuit held, “[t]his is a specific reason for not affording controlling weight to [the

treating physician]. . . . The ALJ thus did not violate any procedural right to an adequate

explanation of why the ALJ did not credit [the plaintiff’s] treating physician’s opinion.”

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Here, the ALJ gave a more detailed analysis, citing the specific facts that led him to

doubt Dr. Richardson’s opinion. The court therefore agrees with the Magistrate Judge

that the ALJ applied the proper legal standards and reached a conclusion supported by

substantial evidence. 

III. CONCLUSION

Accordingly, IT IS ORDERED that Plaintiff’s objections [Dkt. # 21] are

OVERRULED and the Magistrate Judge’s report and recommendation [Dkt. # 20] is

ADOPTED IN FULL AND INCORPORATED BY REFERENCE.

IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment

[Dkt. # 18] is GRANTED and Plaintiff’s Motion for Summary Judgment [Dkt. # 15] is

DENIED.

 s/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: September 29, 2015

I hereby certify that a copy of the foregoing document was mailed to counsel of record on

this date, September 29, 2015, by electronic and/or ordinary mail.

 s/Lisa Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

S:\Cleland\JUDGE'S DESK\C2 ORDERS\14-13466.BARR.Adopt.Soc.Sec.R&R.wpd

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