UNTIED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KIMBERLY HILTUNEN,

Plaintiff, 

v.

CAROLYN W. COLVIN, Acting

Commissioner of Social Security,

Defendant.

_______________________ __________/

CASE NO. 2:14-cv-13315

HON. MARIANNE O. BATTANI

OPINION AND ORDER OVERRULING THE PLAINTIFF’S OBJECTIONS 

AND ADOPTING THE REPORT AND RECOMMENDATION

I. INTRODUCTION

Before the Court are the Plaintiff’s objections to Magistrate Judge David R.

Grand’s June 23, 2015, Report and Recommendation ("R&R"). (Doc. 21.) In the R&R

(Doc. 20), the Magistrate Judge recommended that the Court grant Defendant’s motion

for summary judgment (Doc. 19) and deny Plaintiff's motion for summary judgment

(Doc. 18). For the reasons that follow, the Court OVERRULES the Plaintiff’s objections

and ADOPTS the R&R.

II. STATEMENT OF FACTS

As the parties have not objected to the R&R’s recitation of the facts, the Court

adopts that portion of the R&R. (See Doc. 20, pp. 3-6.)

III. STANDARD OF REVIEW

A. Objections to a Magistrate Judge’s R&R

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A district court must conduct a de novo review of the parts of a magistrate

judge’s report and recommendation to which a party objects. 28 U.S.C. § 636(b)(1). 

The district “court may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate” judge. Id. The requirement of de novo

review “is a statutory recognition that Article III of the United States Constitution

mandates that the judicial power of the United States be vested in judges with life

tenure.” United States v. Shami, 754 F.2d 670, 672 (6th Cir. 1985). Accordingly,

Congress enacted 28 U.S.C. § 636(b)(1) to “insure[ ] that the district judge would be the

final arbiter” of a matter referred to a magistrate. Flournoy v. Marshall, 842 F.2d 875,

878 (6th Cir. 1987).

The Sixth Circuit has made clear that “[o]verly general objections do not satisfy the

objection requirement.” Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006). Only

specific objections are entitled to de novo review; vague and conclusory objections

amount to a complete failure to object as they are not sufficient to pinpoint those

portions of the R&R that are legitimately in contention. Mira v. Marshall, 806 F.2d 636,

637 (6th Cir.1986) (per curiam). “The objections must be clear enough to enable the

district court to discern those issues that are dispositive and contentious.” Miller v.

Currie, 50 F.3d 373, 380 (6th Cir. 1995). "‘[O]bjections disput[ing] the correctness of the

magistrate's recommendation but fail[ing] to specify the findings . . . believed [to be] in

error' are too general.” Spencer, 449 F.3d at 725 (quoting Miller, 50 F.3d at 380).

B. Standard of Review Applicable to Social Security Cases

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This Court has jurisdiction to review the Commissioner's final administrative

decision pursuant to 42 U.S.C. § 405(g). Judicial review is limited to determining

whether the Commissioner’s decision is supported by substantial evidence and was

made pursuant to proper legal standards. Rogers v. Comm'r of Soc. Sec., 486 F.3d

234, 241 (6th Cir. 2007). Substantial evidence is "more than a scintilla of evidence but

less than a preponderance; it is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion." Id. (internal quotation marks omitted). If

the Commissioner's decision is supported by substantial evidence, "it must be affirmed

even if the reviewing court would decide the matter differently and even if substantial

evidence also supports the opposite conclusion." Cutlip v. Sec'y of Health & Human

Servs., 25 F.3d 284, 286 (6th Cir. 1994) (internal citations omitted).

When reviewing the Commissioner's factual findings for substantial evidence, the

Court is limited to an examination of the record and must consider that record as a

whole. Wyatt v. Sec'y of Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). 

There is no requirement, however, that either the ALJ or this Court discuss every piece

of evidence in the administrative record. Kornecky v. Comm'r of Soc. Sec., 167 F.

App'x 496, 508 (6th Cir. 2006). Further, this Court does "not try the case de novo,

resolve conflicts in evidence, or decide questions of credibility." Bass v. McMahon, 499

F.3d 506, 509 (6th Cir. 2007). 

IV. DISCUSSION

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A. Objections to the Weight Assigned to Treating Physician’s Opinions

Plaintiff first objects to the lack of weight afforded to the various opinions

rendered by her treating physician, Floyd Stevens, D.O. In November 2011, Dr.

Stevens opined that Plaintiff would be unable to ambulate or stand for a prolonged

period of time, lift heavy objects, or reach. (Tr. 509). He emphasized the unpredictable

and recurrent nature of Plaintiff’s Crohn’s disease flare-ups and predicted that Plaintiff

would be incapacitated due to exacerbations approximately two and a half days per

month. (Id. at 510). In July 2012, Dr. Stevens provided another opinion stating that

Plaintiff would be limited to lifting and carrying less than ten pounds for no more than

one-third of an eight-hour workday; standing and walking for less than two hours in an

eight-hour workday and requiring an assistive device; and sitting with the ability to

alternate her posture. (Id. at 438). He further stated that Plaintiff’s limitations would

disrupt her job schedule “3/4 of total time.” (Id.).

The Administrative Law Judge (“ALJ”) afforded Dr. Stevens’ November 2011

opinion limited probative weight due to the “lack of significant findings during the

consultative examination and the claimant’s lack of treatment for Crohn’s disease.” (Id.

at 19). The Magistrate Judge affirmed that these two factors supported the ALJ’s

determination. Further, the Magistrate Judge noted that Plaintiff’s ability to sustain work

at Substantial Gainful Activity (“SGA”) levels through December 2011 was inconsistent

with Dr. Stevens’ opinion. Plaintiff disputes the Magistrate Judge’s reliance on her

ability to work at SGA levels and argues that the record reflects numerous absences

from work that were permitted pursuant to the Family Medical Leave Act (“FMLA”). In

fact, Plaintiff asserts that her employment was terminated precisely because of these

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excessive absences. Accordingly, given the allowances of the FMLA, the fact that

Plaintiff was able to work at SGA levels is not inconsistent with Dr. Stevens’ opinion.

As discussed in the Magistrate Judge’s opinion, there can be no question that

Plaintiff engaged in SGA between the alleged onset date of January 1, 2008, and the

time she was terminated from employment on December 19, 2011. (Doc. 20, p. 8). 

Plaintiff is therefore ineligible to receive disability benefits for this period. See 20 C.F.R.

§ 404.1520(b) (“If you are working and the work you are doing is substantial gainful

activity, we will find that you are not disabled regardless of your medical condition or

your age, education, and work experience.”). Accordingly, the only period at issue

relevant to this case is from December 19, 2011, onward. 

Plaintiff specifically challenges the ALJ’s reliance on her work activity as

evidence that she was physically capable of performing work when, in reality, she was

on FMLA leave for some of that time. Indeed, the Court agrees that Plaintiff was

frequently absent from work. In 2008, the record reflects that she missed several days

of work in January. (Tr. 459-60). In 2009, Plaintiff was absent for two to three days in

February and early June. (Tr. 454, 468). Shortly thereafter, she requested

approximately one month of FMLA leave between June 21, 2009, and July 16, 2009. 

(Tr. 469.) In this request, Dr. Stevens noted that Plaintiff could expect to suffer from

flare-ups of her Crohn’s disease once every six months for five to ten days. (Id.) The

record reflects no further FMLA requests or doctor recommendations that Plaintiff be

excused from work until July 15, 2010, when Plaintiff requested FMLA leave until

November 11, 2010. (Tr. 481, 493). Interestingly, a CT scan of Plaintiff’s abdomen

taken on September 19, 2010, during the leave period, indicated no bowel obstruction,

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thickening, or inflammation. (Tr. 401). However, on October 20, 2010, Plaintiff was

hospitalized for her gastrointestinal difficulties. On November 12, 2010, Dr. Stevens

indicated that Plaintiff could return to work with no restrictions. (Tr. 498). Between

November 2010 and December 2011, the date of Plaintiff’s employment termination,

there is no evidence in the record that Plaintiff took any further leave time, at least under

medical advisement. In fact, more recent visits to Dr. Stevens indicated that she felt

better since not working, that her gastrointestinal issues had improved, and that she had

minimal abdominal tenderness. (Tr. 513). Other than stating at one visit that she

experienced nausea and cramping frequently (Tr. 514), Plaintiff did not complain about

her Crohn’s disease during the remainder of her visits in 2012. (Tr. 515-19). Therefore,

although Plaintiff’s point that the FMLA may have protected her employment from being

terminated sooner is well-taken, the evidence provided is insufficient to support the

conclusion that she was unable to work between December 2011 and the present time.

The ALJ also gave Dr. Steven’s July 2012 opinion little weight, explaining that it

was inconsistent with the medical evidence on record, including the consultative

examiner’s (“CE”) report; Plaintiff’s own testimony; Plaintiff’s ability to engage in SGA;

and Dr. Stevens’ November 2010 statement authorizing Plaintiff to return to work

without restrictions. (Tr. 19). The Magistrate Judge agreed that these conclusions were

supported by the record. Plaintiff argues that: (i) the November 2010 return to work

certification was not inconsistent with Dr. Stevens’ July 2012 opinion; (ii) because

Crohn’s disease is intermittent, the lack of significant findings by the CE does not lead

to the conclusion that Plaintiff is not disabled; and (iii) the CE’s observation concerning

Plaintiff’s weight is not inconsistent with Crohn’s disease. 

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In light of the above discussion, the ALJ’s determination that Dr. Stevens’ July

2012 opinion was inconsistent with the record – namely, with his own treatment notes –

is supported by substantial evidence. Nonetheless, the Court will address Plaintiff’s

arguments. First, the Court agrees with Plaintiff that Dr. Stevens’ November 2010 work

authorization is not necessarily inconsistent with his July 2012 opinion. Merely because

Plaintiff’s Crohn’s exacerbation ended does not undermine Dr. Steven’s global

assessment of her abilities when she is afflicted with a flare-up. However, this

conclusion does not overcome the substantial evidence supporting the ALJ’s

determination. Second regarding Plaintiff’s assertion that her symptoms were

“quiescent” during the CE examination, it would appear that Plaintiff’s symptomatology

had been improved for some time, consistent with the above discussion. Moreover, the

CE appeared to be skeptical of the severity of Plaintiff’s Crohn’s symptoms, stating,

“Amazingly despite this problem she does weigh 317 pounds,” and reiterating, “It is

striking that she has been able to maintain such severe obesity.” (Tr. 428, 431). It is no

stretch to infer from this language – and it is indeed suggested by Plaintiff (Doc. 21, p.

4) – that Plaintiff’s weight is unusual for a patient suffering from Crohn’s disease. 

Accordingly, the CE report, along with the substantial evidence of record, supports the

ALJ’s decision to afford Dr. Stevens’ opinions little weight.

B. Objections to the Weight Assigned to “Off-Work” Slips

Plaintiff’s next objection concerns the ALJ’s decision to afford “little weight” to her

physicians’ statements holding her off work. The ALJ granted little weight to these offwork slips because they were intended to be only temporary restrictions and because

Plaintiff returned to work after these notes were issued. (Tr. 20). The Magistrate Judge

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agreed with the ALJ’s conclusions. Similar to her arguments advanced above, Plaintiff

contends that a “temporary restriction” is not the same as a temporary condition and

that Plaintiff’s frequent absences from work would have prevented her from sustaining

employment without the protections of FMLA. As discussed above, Plaintiff’s multiple

absences from work may have been indicative of disability during certain periods of

2009 and 2010. However, during that time, Plaintiff was engaged in SGA and therefore

is ineligible for disability benefits. See 20 C.F.R. § 404.1520(b). Further, Plaintiff has

produced no evidence that she was restricted from working, per a doctor’s

recommendation, for the period between mid-November 2010 and December 2011. 

Accordingly, the ALJ’s conclusion to afford the off-work slips only little weight is

supported by substantial evidence.

C. Objections to the Weight Assigned to Psychological Consultative

Examiner’s Opinion and the Global Assessment of Functioning Scores

The ALJ noted the fact that Plaintiff had been issued multiple global assessment

of functioning (“GAF”) scores of 50, indicating serious symptoms or serious limitations in

functioning. (Tr. 20). However, the ALJ afforded these GAF scores little weight

because they are highly subjective and do not indicate whether the score is intended to

assess symptom severity or limitations in functioning. (Id.). The Magistrate Judge

agreed with the ALJ’s conclusions, reasoning that an ALJ need not consider GAF

scores as opinion evidence in accordance with Administrative Message 13066 (AM13066”) where the ALJ’s decision was rendered prior to the promulgation of AM-13066

on July 22, 2013. See Bryce v. Comm’r of Soc. Sec., No. 12-CV-14618, 2014 WL

1328277 at *9 (E.D. Mich. Mar. 28, 2014). Further, a GAF score, standing alone, need

not be afforded much weight “[u]nless the clinician clearly explains the reasons behind

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his or her GAF rating, and the period to which the rating applies.” Id. (citing Nienaber v.

Colvin, No. 13-1216, 2014 WL 910203 at *4 (W.D. Wash. Mar. 7, 2014)).

The Plaintiff appears to imply that the present case may be distinguished from

Bryce because the ALJ rendered her opinion on April 18, 2013. Like the decision in

Bryce, however, the ALJ’s decision here was written before the promulgation of AM13066 on July 22, 2013. Moreover, the GAF scores of 50 are inconsistent with the

medical sources’ qualitative observations. For example, Plaintiff’s treating psychiatrist

opined that Plaintiff’s grooming and hygiene were good; that she had an open,

cooperative, and engaging interpersonal style; that she exhibited coherent speech and

logical thought process; and that although she had a depressed and anxious affect, her

judgment and eye contact were good. (Tr. 540). The report goes on to describe

Plaintiff’s self-reported symptoms, including feelings of panic and anxiety when in public,

difficulty concentrating, considerable stress, and psychosomatic symptoms such as

dizziness and sweating. (Id.). The treating source’s GAF score does not explain

whether it is based on Plaintiff’s subjective, self-reported statements or on her own

clinical observations. Indeed, her own objective findings would appear inconsistent with

a GAF score of 50. Because self-reports are insufficient to support a finding of

disability, the Court concludes that the ALJ’s determination was supported by

substantial evidence. See Bell v. Barnhart,148 F. App’x 277, 285 (6th Cir. 2005)

(“There is no indication that Dr. McFadden's opinion was supported by anything other

than Bell's self-reports of his symptoms. Such reports alone cannot support a finding of

impairment.”) (citing 20 C.F.R. § 404.1508; Young v. Sec’y of HHS, 925 F.2d 146, 151

(6th Cir. 1990)).

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Likewise, CE Michael Brady, Ph.D., assigned Plaintiff a GAF score of 50,

explaining that:

Her ability to understand, recall, and complete tasks and expectations

does not appear to be significantly impaired. Her ability to maintain

concentration was impaired. As a result of her emotional state she may

often be distracted and her effectiveness and performance will likely be

limited and slowed. Her ability to withstand the normal stressors

associated with a workplace setting is somewhat impaired.

(Tr. 425). Plaintiff argues that the ALJ erred in discounting Dr. Brady’s assessment and

GAF score. As noted by the ALJ, a GAF score of 50 is inconsistent with aspects of Dr.

Brady’s report, to the extent that Plaintiff stated that she cares for her home and

children, cooks, maintains close relationships with her family members, and

demonstrated an intact memory. (Tr. 423-24). The ALJ also correctly observed that a

GAF score of 50 is also inconsistent with Plaintiff’s lack of mental health treatment

during the bulk of her alleged disability, given that she only began seeking counseling in

August 2012. (See Tr. 534-55). Further, state agency medical reviewer Judy Strait,

Psy.D., L.P., took Dr. Brady’s opinion into consideration when she rendered her own

residual functional capacity assessment, which the ALJ adopted. (See Tr. 69-70, 75-

76). Accordingly, the Court finds that the ALJ’s determinations regarding Plaintiff’s GAF

scores and Dr. Brady’s assessment are supported by substantial evidence.

V. CONCLUSION

For the foregoing reasons, the Court OVERRULES Plaintiff’s objections and

ADOPTS the Magistrate Judge’s recommendation to grant Defendant’s motion for

summary judgment and deny Plaintiff’s motion for summary judgment.

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IT IS SO ORDERED.

Date: September 17, 2015 s/Marianne O. Battani 

MARIANNE O. BATTANI

United States District Judge

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their

respective email addresses or First Class U.S. mail to the non-ECF participants on September 17, 2015.

s/ Kay Doaks 

Case Manager

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