UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Dino A. Schmidt,

Plaintiff,

v. Case No. 14-13885

Honorable Sean F. Cox

Magistrate Judge R. Steven Whalen

Commissioner of Social Security,

Defendant.

______________________________/

ORDER ACCEPTING AND ADOPTING 

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Plaintiff brought this action seeking judicial review of the Commissioner of Social

Security’s determination that he is not entitled to disability insurance benefits and supplemental

security income for his mental and physical impairments under 42 U.S.C. § 405(g). (Doc. #1). 

Sometime thereafter, Plaintiff and Defendant filed cross-motions for summary judgment. 

(Doc. #15 and Doc. #16). All proceedings in this case were referred to Magistrate Judge R.

Steven Whalen pursuant to 28 U.S.C. §§ 636(b)(1)(A), (B), and (C). (Doc. #3). 

On October 26, 2015, Magistrate Judge Whalen issued a Report and Recommendation

(“R&R”) wherein he recommended that the Court DENY Defendant’s Motion for Summary

Judgment, and GRANT Plaintiff’s Motion for Summary Judgment to the following extent: 1) a

remand for an award of benefits for, at a minimum, a closed period of at least 12 months under

Listing 3.03B; 2) a remand for determination of whether Dr. Long’s treating opinion is entitled

to controlling weight; and 3) a remand for determination of whether Plaintiff is entitled to

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ongoing benefits. (Doc. #20). Defendant timely filed objections to this R&R on November 3,

2015. (Doc. #21). Plaintiff filed a Response to Defendant’s objections. (Doc. #24). 

The Court finds Defendant’s objections to be without merit. The Court shall therefore

ADOPT the R&R, GRANT Plaintiff’s Motion for Summary Judgment, to the extent specified in

the Magistrate Judge’s October 26, 2015 R&R, and DENY Defendant’s Motion for Summary

Judgment. 

STANDARD OF REVIEW 

Pursuant to Federal Rule of Civil Procedure 72(b), a party objecting to the recommended

disposition of a matter by a Magistrate Judge must file objections to the R&R within fourteen

(14) days after being served with a copy of the R&R. Fed. R. Civ. P. 72(b)(2). Objections must

“(A) specify the part of the order, proposed findings, recommendations, or report to which a

person objects; and (B) state the basis for the objection.” E.D. Mich. LR 72.1(d). Objections are

not “a second opportunity to present the argument already considered by the Magistrate Judge.” 

Betancourt v. Ace Ins. Co. of Puerto Rico, 313 F. Supp. 2d 32, 34 (D.P.R. 2004). Moreover, the

district court should not consider arguments that have not first been presented to the magistrate

judge. See Stonecrest Partners, LLC v. Bank of Hampton Roads, 770 F. Supp. 2d 778, 785

(E.D.N.C. 2011). 

“The district judge must determine de novo any part of the magistrate judge’s disposition

that has been properly objected to. The 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). 

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ANALYSIS

Plaintiff’s Motion for Summary Judgment sought to have this Court reverse the

Administrative Law Judge’s (“ALJ”) conclusion that Plaintiff was not under a disability because

Plaintiff was able to perform other work. Plaintiff argued: 1) that the ALJ erred at the third step

of the sequential evaluation process by failing to properly consider whether Plaintiff met listed

impairment 3.03; and 2) that the ALJ failed to properly consider and give controlling weight to

the opinion of treating physician Dr. Toby Long. (Doc. #15, Pl.’s Br. at 10, 16). 

Defendant cross-motioned for summary judgment, arguing, inter alia, that: 1) as a matter

of law, there is no possibility that the evidence that plaintiff advances could meet a listing

because an impairment must persist at listing-level severity for at least a continuous period of

twelve months for a listing to be met; and 2) that the ALJ permissibly discounted the opinion of

Plaintiff’s treating physician, Dr. Long. (Doc. #16, Def.’s Br. at 11-12). 

Magistrate Judge Whalen recommended that the Court grant Plaintiff’s motion, to a

certain extent1

, and deny Defendant’s motion because the ALJ erred in determining that Plaintiff

did not meet Listing 3.03(B) (R&R at 13-15) and because the ALJ failed to properly articulate

“good reasons” for discounting Dr. Long’s treating opinion. (R&R at 15-17). 

Defendant has lodged three objections to Magistrate Judge Whalen’s October 26, 2015

R&R. (Doc. #21, Def.’s Objs.). First, Defendant argues that the Magistrate Judge “erred in

recommending reversal of the ALJ’s finding that Listing 3.03(B) (Asthma) was not met.” 

1

 Magistrate Judge Whalen recommended that Plaintiff’s motion be granted to the

following extent: 1) a remand for an award of benefits for, at a minimum, a closed period of at

least 12 months under Listing 3.03B; 2) a remand for determination of whether Dr. Long’s

treating opinion is entitled to controlling weight; and 3) a remand for determination of whether

Plaintiff is entitled to ongoing benefits. 

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(Def.’s Objs. at 1). Second, Defendant argues that the Magistrate Judge “erred in finding that

Plaintiff is entitled to remand for an award of a closed period of disability and reconsideration of

the entire alleged disability period.” (Def.’s Objs. at 4). And finally, Defendant argues that “the

Magistrate Judge erred in finding that the ALJ failed to give good reasons for discounting Dr.

Long’s Opinion.” (Def.’s Objs. at 10). 

The Court finds that Defendant has not asserted any proper objections to the R&R. As

explained below, Defendant’s objections advance the same arguments that Magistrate Judge

Whalen has already rejected without pointing to a specific deficiency in the Magistrate Judge’s

reasoning. Additionally, the Court agrees with the Magistrate Judge’s analysis as to the issues

challenged. 

Defendant’s First Objection

Defendant’s first objection has already been advanced before, and rejected by, the

Magistrate Judge. In her brief, Defendant argued that, “as a matter of law, there is no possibility

that the evidence that plaintiff advances could meet a listing, because an impairment must persist

at listing-level for at least a continuous period of twelve months for a listing to be met...” (Def.’s

Br. at 11) . The Magistrate Judge exhaustively addressed this argument and correctly pointed

out that: 

[u]nder Listing 3.03B a claimant can establish disability by experiencing attacks

by either (1) “at least once every 2 months” or (2) “at least six times a year.” 

(Emphasis added). While the following sentence states that “an evaluation period

of at least 12 consecutive months must be used to determine the frequency of

attacks, it cannot be interpreted to state that an individual experiencing at least six

attacks over the course of eight to nine months, followed by a three to four month

period without a hospitalization, does not meet the Listing. 

. . . . 

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Moreover, the ALJ acknowledged that Plaintiff experienced asthma for more than

12 months by including it among the “severe” impairments at Step Two. 

(R&R at 13-14). For the reasons set forth in the R&R, the Court finds that Defendant’s first

objection is without merit. Defendant appears to conflate the duration requirement with the 

additional requirements specified in each Listing. Despite Defendant’s assertions, the 12-month

requirement is separate from the specifications of each Listing. Here, Magistrate Judge Whalen

correctly found that the ALJ had already determined that Plaintiff’s asthma had lasted, or was

expected to last, 12 months and that Plaintiff had in fact satisfied the additional “6 times a year”

requirement specified in Listing 3.03(B). (R&R at 13-14). 

Defendant’s objection also fails because it serves as an attempt to advance a Step Two

argument at Step Three. Defendant’s argument mistakenly presumes that the ALJ had not

already determined, at Step Two of the sequential process, that Plaintiff’s asthma satisfied the

12-month duration requirement. (R&R at fn. 3, “Notably in contrast, the ALJ declined to

include sleep apnea among the severe impairments because the medical evidence did not support

a finding that the condition lasted 12 months.”). However, most detrimental to Defendant’s

objection is the fact that, here, a determination of not disabled occurred at Step Five. The ALJ

concluded that despite Plaintiff’s severe impairments, Plaintiff was still able to perform other

work. At this point in the sequential evaluation process, Plaintiff’s severe impairments must

have necessarily met the 12-month requirement. If the ALJ determined that the duration

requirement had not been satisfied, Plaintiff would have been found disabled at Step Two: “[a]t

the second step, we consider the medical severity of your impairment(s). If you do not have a

severe medically determinable physical or mental impairment that meets the duration

requirement, we will find that you are not disabled.” 20 C.F.R. § 404.1520(a)(4)(ii). Thus, this 

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objection fails for the same reasons advanced in the R&R, and for the additional reasons

advanced above. Accordingly, Defendant’s first objection is overruled. 

Defendant’s Second Objection 

In her second objection, Defendant argues that the Magistrate Judge erred: 1) in ordering

a remand for an award of a closed period of disability; and 2) in recommending reconsideration

of the entire alleged disability period. Defendant’s objection is without merit. The Court also

notes that Defendant does not properly flesh out the arguments advanced here. 

As to the first claim of error, Defendant argues that there is no prima facie showing that

Plaintiff did not retain the limited sedentary RFC determined by the ALJ for a continuous period

of 12 months. (Def.’s Objs. at 5). To the extent that this argument relates to an award of a

closed period of disability, it is misplaced. Here, Defendant appears to be arguing that Plaintiff

bears the burden of establishing that he cannot perform sedentary work at Step Three of the

sequential evaluation process. Although Defendant is correct in that it is Plaintiff’s burden to

demonstrate limitations, there is no such burden at Step Three. Defendant has not cited authority

that supports the proposition that Plaintiff is required to rule out sedentary work at this point in

the sequential evaluation. This is because these limitations are implicated at Steps Four and Five

of the sequential evaluation process. Magistrate Judge Whalen’s order as to an award of benefits

pertains solely to a Step Three determination that Plaintiff met Listing 3.03(B). Accordingly, if

Plaintiff “suffers from one of the listed impairments, benefits are owing without further

inquiry.” Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990). It belies common sense to

hold Plaintiff accountable for an RFC determination that would not have been reached had the

ALJ properly determined that Plaintiff met Listing 3.03(B). As Magistrate Judge Whalen

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determined, an award of benefits for a closed period was proper here because “the record shows

that Plaintiff’s hospitalizations for asthma attacks in 2011 and 2012 establish disability under

Listing 3.03B, at minimum, for a closed period of at least one year.” (R&R at 18). 

Moreover, Defendant’s argument that the ALJ’s RFC determination is supported by

substantial evidence is not persuasive and has already been raised before the Magistrate Judge. 

Defendant’s focus is on the fact that a “non-examining source can outweigh treating source

opinions as long as the former is ‘supported by evidence in the case record.’” (Def.’s Objs. at 7)

(citations omitted). However, in making this argument, Defendant ignores the fact that the

Magistrate Judge took issue with the ALJ’s decision to discount the opinion of Plaintiff’s

treating source when reaching the RFC determination. As will be explained in the section

below, the ALJ did not properly support its decision to adopt one opinion over another with

“good reasons.” Accordingly, Magistrate Judge Whalen correctly determined that, “while the

record does not establish overwhelmingly that Plaintiff met the listings for either COPD or

emphysema for the period in question, his extensive treatment for these conditions, in

combination with the other physical and mental conditions, casts doubt on the Step Five finding

that he is capable of even sedentary work. [T]hus, Plaintiff is entitled... [to a] reconsideration of

his entitlement to further or ongoing benefits.” (R&R at 19). 

Defendant has not presented any argument that persuades this Court to reject Magistrate 

Judge Whalen’s conclusions. Thus, Plaintiff’s second objection is overruled. 

Objection 3

In her last objection, Defendant argues that Magistrate Judge Whalen erred in concluding

that the ALJ failed to give good reasons for discounting Dr. Long’s opinion. (Def.’s Objs. at

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10). The reasons advanced by Defendant in this regard have already been raised before, and

properly rejected by, the Magistrate Judge. As Magistrate Judge Whalen noted: 

The ALJ’s conclusion that Dr. Long based the bulk of his findings on subjective

but unsupported complaints is inaccurate. While the ALJ discounted Plaintiff’s

claim of back problems, the 2008 cervical spine fracture and ensuing back pain is

well documented by the treating sources (Tr. 570). Although the ALJ appeared to

conclude that Dr. Long found that the exertional limitations were attributable to

back problems alone, his assessment notes that Plaintiff’s exertional abilities were

not just limited by back problems but primarily, the “most severe” diagnosis of

emphysema, combined with chronic pain and a history of anxiety would severely

restrict his work abilities (Tr. 580). Dr. Long’s treating records, documenting the

long-term respiratory problems due to asthma, emphysema, and COPD, support

the finding that Plaintiff experienced significant exertional limitations as a result

of respiratory problems (Tr. 572-577). Dr. Long’s finding that Plaintiff

experienced disabling respiratory problems is supported by the hospital records

and objective testing (Tr. 495, 511). Because the ALJ’s explanation for

discounting the treating opinion does not constitute “good reasons,” under §

404.1527(c)(2), a remand on this basis is also appropriate. 

(R&R at 17). And although Defendant’s objection is comprised of countless “good reasons”2

that support the ALJ’s decision to discount the treating opinion of Dr. Long, it is the duty of the

ALJ to substantiate its decision with “good reasons,” not Defendant’s. Thus, Magistrate Judge

Whalen properly concluded that the “ALJ’s weakly supported rejection of Dr. Long’s opinion

points to a remand for further fact-finding rather than an award of benefits.” (R&R at 18). 

Accordingly, Defendant’s third objection is overruled. 

CONCLUSION 

Because Defendant has presented no argument that persuades this Court to reject

Magistrate Judge Whalen’s resolution of the challenged issues, the Court concludes that

Defendant’s objections to the October 26, 2015 R&R are without merit. The Court shall

2

 The Court does not concede that the reasons advanced by Defendant are “good

reasons,” but only that they are alleged by Defendant as such. 

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ADOPT AND ACCEPT the October 26, 2015 R&R. Thus, the Court shall DENY Defendant’s

Motion for Summary Judgment and GRANT Plaintiff’s Motion for Summary Judgment, to the

following extent: 1) a remand for an award of benefits for, at a minimum, a closed period of at

least 12 months under Listing 3.03B; 2) a remand for determination of whether Dr. Long’s

treating opinion is entitled to controlling weight; and 3) a remand for determination of whether

Plaintiff is entitled to ongoing benefits.

IT IS SO ORDERED.

S/Sean F. Cox 

Sean F. Cox

United States District Judge

Dated: February 9, 2016

I hereby certify that a copy of the foregoing document was served upon counsel of record on

February 9, 2016, by electronic and/or ordinary mail.

S/Jennifer McCoy 

Case Manager

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