NOT RECOMMENDED FOR PUBLICATION File Name: 18a0221n.06
No. 17-4070
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Apr 30, 2018 DANIEL J. ANDRES, ) DEBORAH S. HUNT, Clerk ) Petitioner-Appellant, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE COMMISSIONER OF SOCIAL SECURITY, ) NORTHERN DISTRICT OF ) OHIO Defendant-Appellee. ) ) )
BEFORE: SUHRHEINRICH, GIBBONS, and KETHLEDGE, Circuit Judges.
SUHRHEINRICH, Circuit Judge. Plaintiff-Appellant Daniel J. Andres has a history of
neck and low-back pain and has had two cervical spine fusion surgeries. He applied for
disability insurance benefits and supplemental security income in February 2013, claiming an
onset date of January 2012. His past work included forklift driver, hi-lo operator, and job setter.
R. 11, ID# 127.1 Applying 20 C.F.R. § 404.1529(a)’s five-step analysis, the administrative law
judge (“ALJ”) concluded that, despite his medically severe impairments, which included lumbar
degenerative disc disease, cervical degenerative disc disease with status-post decompression and
fusion procedures, degenerative joint disease of the left shoulder, obesity, major depressive
disorder, and social phobia, Andres retained the residual functional capacity (“RFC”) to perform
light sedentary work with additional limitations. The ALJ also concluded that jobs with those
restrictions existed in significant numbers in the national economy. The appeals council denied
1 Record entry 11 is the transcript of the entire record of proceedings before the Social Security Administration. See R. 11, ID#54. The ALJ’s decision is located at ID# 68-86. No. 17-4070, Andres v. Comm’r of Soc. Sec.
Andres’ request for review of the ALJ’s decision, making it the final decision of the
Commissioner. See 20 C.F.R. § 404.981. The magistrate judge and district court affirmed that
decision.
Andres appeals, contending that the ALJ ignored the fact that he cannot sit for long
periods and therefore cannot perform repetitive jobs such as inspector, assembler, or
polisher/smoother. The Commissioner claims that Andres forfeited his right to appeal the district
court’s judgment because he failed to file specific objections to the magistrate judge’s report and
recommendation and that substantial evidence supports the ALJ’s determination in any event.
Forfeiture. The magistrate judge’s report and recommendation informed Andres that he
had fourteen days to file objections or he would waive them. R. 20, ID# 1401-02. The day after
the magistrate judge issued his report and recommendation, the district court issued an order
outlining the briefing requirements for filing objections. R. 21, ID# 1403. That order told the
parties that they had fourteen days to file any objection “under Local Rule 72.3,” which requires
that “written objections . . . shall specifically identify the portions of the proposed findings,
recommendations, or report to which objection is made and the basis for such objections.” N.D.
Ohio Civ. R. 72.3(b); R. 21, ID# 1403. The district court’s order also stated that “[e]ach
Objection must (1) be separately enumerated, (2) specifically identify the portion of the R&R to
which the party objects, and (3) clearly outline the basis for the Objection, with appropriate
citations to the record and relevant legal authority.” R. 21, ID# 1403. Further, the court set a
ten-page limit, absent a showing of good cause. Id. Finally, the court warned that noncomplying
submissions “shall be stricken.” Id.
Although Andres’ filing was timely, he failed to comply with any of the enumerated
requirements (and he blew past the ten-page limit). Instead, as the district court noted, Andres
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essentially re-filed his merits brief, R. 24, ID# 1433, with the addition of one paragraph.
Compare R. 16, ID# 1309-33 (merits brief), with R. 22, ID# 1404-29 (objections to magistrate
judge’s report and recommendation). In that paragraph, which Andres characterizes as a
“crystallization” of his objections to the magistrate judge’s report, Reply Br. at 2-3, he does not
identify, “with appropriate citations to the record and relevant legal authority,” R. 21, ID# 1403,
any specific errors by the magistrate judge.
If a party receives notice, yet fails to file timely and compliant objections, he forfeits
appellate review of the district court’s adoption of the magistrate judge’s report. See Spencer v.
Bouchard, 449 F.3d 721, 724 (6th Cir. 2006), abrogated on other grounds by Jones v. Brock,
549 U.S. 199 (2007). See generally Thomas v. Arn, 474 U.S. 140, 147-48 (1985) (holding that
the waiver rule is a valid exercise of this court’s supervisory power); United States v. Walters,
638 F.2d 947, 949-50 (6th Cir. 1981). And the objections must be specific. Spencer, 449 F.3d at
725 (“‘[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.”) (quoting Miller v. Currie,
50 F.3d 373, 380 (6th Cir. 1995)). Because Andres failed to pinpoint the magistrate judge’s
alleged errors, he has forfeited his arguments on appeal.
Merits. We nonetheless find that Andres has not shown that the ALJ failed to properly
apply the correct legal standards or made findings of fact unsupported in the record. See Miller
v. Comm’r of Soc. Sec., 811 F.3d 825, 833 (6th Cir. 2016) (citing Blakely v. Comm’r of Soc. Sec.,
581 F.3d 399, 405-06 (6th Cir. 2009)).
Dr. Kanney’s Opinion. Andres argues that the ALJ should have given controlling weight
to treating physician Dr. Robert Kanney’s opinion that Andres is “totally unable to work.” This
assessment was not a medical opinion as described in the regulations, see 20 C.F.R.
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§ 404.1527(a)(1) (“Medical opinions are statements from acceptable medical sources that reflect
judgments about the nature and severity of your impairment(s) . . . .”),2 but rather an “opinion[]
on issues reserved to the Commissioner,” namely an assessment of the ability to work. See 20
C.F.R. § 404.1527(d)(1) (“We are responsible for making the determination or decision about
whether you meet the statutory definition of disability. . . . A statement by a medical source that
you are ‘disabled’ or ‘unable to work’ does not mean that we will determine that you are
disabled.”). Cf. 20 C.F.R. § 404.1527(c)(2) (directing that a treating physician’s opinion should
be given controlling weight when it relates to “the nature and severity” of a claimant’s
impairment and is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques and not inconsistent with the other substantial evidence”).
The statement also must be read in context. Dr. Kanney made it two weeks prior to
Andres’ revision neck surgery, and remarked that Andres was “[a]t this point . . . totally unable
to work and I do not expect to be able to physically return to the heavy labor he had been doing.”
R. 11, ID# 629. That statement in no way suggests that Andres was totally and permanently
disabled from all labor. In his discharge order after the revision surgery, neurosurgeon Azedine
Medkhour cleared Andres to return to work, although he did not specify a date. R. 11, ID# 1145.
Furthermore, the ALJ agreed that Andres could not return to his heavy labor work. R. 11,
ID# 78. Specifically, the ALJ found that Andres was limited to a reduced range of sedentary
work. R. 11, ID# 74.
Moreover, the ALJ’s rejection of Dr. Kanney’s “rather extreme preclusion on all work
activity” was based on clinical and diagnostic findings in the record, which consistently showed
normal neurological examination findings, including normal tone and sensation, as well as full
strength in the upper and lower extremities. See R. 11, ID# 78 (citing ID# 445, 449, 597, 608, 2 20 C.F.R. § 404.1527 applies to opinion evidence for claims filed before March 27, 2017.
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720, 895, 905-08, 914, 1243-44). In addition, post-revision cervical spine x-rays consistently
showed satisfactory alignment with no hardware complications. R. 11, ID# 78 (citing ID# 430-
33, 439, 714-15, 731, 791-97, 906, 914-19, 1244, 1249-50).
Occupational therapist Lynne Chapman, who performed a work performance test on
Andres in March 2013, also lent support to the ALJ’s conclusion. See R. 11, ID# 79. She
concluded that Andres could perform light work with additional non-exertional restrictions,
including only occasional working with arms overhead while standing, never working in a bent
position while standing or sitting, and never engaging in repetitive trunk rotation while sitting.
Chapman assessed that Andres could occasionally kneel, climb stairs and ladders, and engage in
repetitive trunk rotation while sitting. R. 11, ID# 79 (citing ID# 920-22). The state agency
reviewing physicians, Drs. Louis Goorey and Gerald Klyop, reached the same conclusions after
taking into account Andres’ neck pain, diminished spinal range of motion, and positive facet
loading as well as postoperative findings of normal gait, normal bulk and tone, normal strength,
and normal sensation. R. 11, ID# 144-46, 171-74. The ALJ did not err in discounting Dr.
Kanney’s opinion in light of the objective findings of Goorey and Kylop. See Reeves v. Comm’r
of Soc. Sec., 618 F. App’x 267, 274-75 (6th Cir. 2015) (ALJ may give greater weight to state
agency physician’s opinion if it is supported by record evidence).
Thus, as the magistrate judge (and district court by adoption) concluded, “the ALJ did not
err in its treatment of Dr. Kanney’s opinions,” R. 24, ID# 1434, because (1) the ultimate
disability question was the Commissioner’s prerogative; (2) the ALJ’s decision was partially
consistent with Dr. Kanney’s conclusion that Andres would not be able to return to his prior
heavy labor work; (3) the ALJ gave “good reasons” for rejecting the rest of Dr. Kanney’s
opinion; and (4) the ALJ gave “great weight” to the unanimous views of occupational therapist
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Lynne Chapman, and state agency reviewing physicians that Andres was capable of some level
of work. R. 20, ID# 1389-91. In short, the ALJ was not bound by Dr. Kanney’s opinion because
it was not supported by sufficient medical data and the ALJ provided “a reasoned basis for her
rejection.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003) (citing Shelman v.
Heckler, 821 F.2d 316, 321 (6th Cir. 1987)).
Dr. Shamberg’s Opinion. Andres is also mistaken in suggesting that the ALJ was
required to give controlling weight to the opinion of psychological consultative examiner
Dr. Neil Shamberg. The regulations give controlling weight to a treating physician only (and
only if certain criteria are met). See 20 C.F.R. § 404.1527(c)(2). Dr. Shamberg only examined
Andres one time. See Staymate v. Comm’r of Soc. Sec., 681 F. App’x 462, 467 (2017) (one-time
meeting with a psychological consultative examiner does not “create the on-going treatment
relationship necessary to apply the treating source rule” and the ALJ is entitled to give less
weight to the consultative examiner’s opinion). The ALJ also reasonably discounted Dr.
Shamberg’s assessments that Andres would have problems remembering and carrying out job
instructions, and maintaining persistence and pace, because Dr. Shamberg noted that Andres
showed no signs of anxiety, and his thought processes “were always logical, coherent, and goal
directed.” R. 11, ID# 583-84. As the ALJ further noted, Andres’ treatment records of Drs.
Medhkour and Kanney consistently documented “normal memory function, good concentration
and clear articulation.” R. 11, ID# 81 (citing ID# 444-60, 469-88, 495-503, 720-36, 894, 899-
915, 1194-95, 1243).
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The ALJ’s rejection of Dr. Shamberg’s low GAF assignment of 453 was not
unreasonable, because the GAF score was inconsistent with Dr. Shamberg’s observations of
polite and cooperative demeanor with no signs of anxiety or anger. R. 11, ID# 82 (citing ID#
444-60, 469-88, 495-503, 720-36, 894, 899-915, 1194-95, 1243). See Bowman v. Comm’r of
Soc. Sec., 683 F. App’x 367, 375 (6th Cir. 2017) (holding that ALJ properly discounted
psychological consultative examiner’s score because it was inconsistent with his own
examination report and the record as a whole). Furthermore, the ALJ’s RFC was consistent with
Dr. Shamberg’s assessments. Dr. Shamberg assessed problems remembering and carrying out
job instructions; the ALJ similarly restricted Andres to understanding, remembering, and
carrying out simple, routine, and repetitive tasks, R. 11, ID# 74 (citing ID# 586). Dr. Shamberg
also assessed problems responding appropriately to supervisors and coworkers, R. 11, ID# 586;
the ALJ precluded all interaction with the public and allowed only occasional interaction with
coworkers and supervisors, R. 11, ID# 74. Dr. Shamberg concluded that Andres would have
problems with maintaining concentration, persistence, and pace as well as responding to work
pressures, R. 11, ID# 586; the ALJ found that Andres’ productivity pace could not be dictated by
an external source that Andres could not control. R. 11, ID# 74. In short, Andres has not shown
how the limited weight the ALJ afforded Dr. Shamberg’s assessment harmed him.
As the magistrate judge held, the ALJ appropriately (1) gave “some weight” to
Dr. Shamberg’s opinion by adopting his conclusions regarding Andres’ ability to respond to
coworkers and work pressures; (2) rejected Dr. Shamberg’s opinion regarding Plaintiff’s ability
to follow job instructions and maintain pace; and (3) discounted the GAF score R. 20, ID# 1398-
99.
3 The Global Assessment of Functioning, or GAF, scale measures the impact of mental illness on an individual’s daily life. A GAF of 41-50 indicates serious symptoms or impairments. See Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed. 2000).
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RFC Finding. The ALJ found that while Andres could not perform his past relevant
work, he had the RFC to perform sedentary work (which, by definition, involves sitting, see
20 C.F.R. §§ 404.1567(a), 416.967(a)) with additional limitations, including: standing/walking
for four hours in an eight-hour workday; occasionally stooping, crouching, and crawling; never
climbing ladders, ropes, or scaffolds; avoiding workplace hazards such as unprotected heights
and dangerous moving machinery; occasionally reaching overhead with left upper extremity;
understanding, remembering, and carrying out simple, routine, and repetitive tasks; not
interacting with the general public, but tolerating occasional, superficial interaction with
supervisors and coworkers; no twisting or turning of the head to the ends of range of motion, but
maintaining capability to turn his body to accommodate; and not performing tasks requiring him
to hold his head in a fixed position. R. 11, ID# 74. Additionally, the ALJ found that Andres’
productivity pace should not be dictated by an external source over which he lacked control, such
as an assembly line or conveyor belt. R. 11, ID# 74, 80, 82.4
On appeal, Andres focuses on the ALJ’s alleged failure to include in the RFC finding
Andres’ sitting restrictions—that he cannot sit for long periods of time. But Andres did not
challenge the ALJ’s sitting assessments until his district court reply brief (and did not raise any
challenge to the ALJ’s RFC in his merits brief). See R. 15, ID# 1283 (merits brief); R. 19, ID#
1363 (reply brief). He has therefore forfeited any argument on the subject here. See Kennedy v.
Comm’r of Soc. Sec., 87 F. App’x 464, 466 (6th Cir. 2003) (issues not properly raised in opening
district court brief are waived).
Substantial evidence supports the ALJ’s RFC finding in any event. As the nineteen-page
single-spaced decision reflects, the ALJ considered Andres’ complaints of back pain, neck pain,
4 In her appeal brief, the appellee states the ALJ found that Andres could sit for six hours in an eight-hour workday. Appellee’s Br. at 17. That is not correct. Only state agency reviewing physicians, Drs. Louis Goorey and Gerald Klyop, made that assessment. R. 11, ID# 144, 171-72.
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and left shoulder pain; as well as his medical treatments; physical therapy; ongoing clinical
findings of decreased spinal range of motion, spinal tenderness, and positive facet loading and
mental complaints. R. 11, ID# 75-80. The ALJ balanced these findings against other record
proof showing that Andres nonetheless retained normal strength in the upper and lower
extremities, normal gait and stance, and normal sensory findings. R.11, ID# 76 (citing ID# 414-
15, 445, 448-49, 455, 597, 608, 693, 720, 727, 889, 895, 905-08, 914, 1229-31, 1243-44).
Further, as the ALJ noted, x-rays consistently showed normal alignment without hardware
complications after the September 2012 revision neck surgery. R. 11, ID# 77-78 (citing ID#
430-33, 436-39, 452, 714-15, 720-21, 906, 914-19, 1112-15, 1244, 1249-50).
The ALJ also properly considered Andres’ noncompliant behavior, which undermined his
credibility regarding pain. See 61 Fed. Reg. 34,483 (July 2, 1996) (describing SSR 96-7p and
stating that “the individual's statements may be less credible if the level or frequency of
treatment is inconsistent with the level of complaints, or if the medical reports or records show
that the individual is not following the treatment as prescribed and there are no good reasons for
this failure”).5 Andres abruptly stopped going to physical therapy in July 2014, R. 11, ID# 83
(citing ID# 870); stopped wearing a cervical collar after his initial surgery contrary to Dr.
Medhkour’s orders, R. 11, ID# 83 (citing ID# 507), which prompted Dr. Medhkour to place
Andres in an invasive halo brace following the revision surgery, R. 11, ID# 507, 536-37; and
continued to smoke despite recommendations by medical professionals to quit, see R. 11, ID#
442, 449, 474-75, 479, 486.
5 This regulation has been replaced with a new ruling, SSR 16-3p, see 81 Fed. Reg. 14,166 (March 16, 2016). SSR 16-3p’s substantive aspects do not apply retroactively, so SSR 96-7p controls here.
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The ALJ also noted that Dr. Medkour determined that Andres was not a candidate for
lumbar surgery. R. 11, ID# 83 (citing ID# 670-75).6
Andres claims that “[a] straight-forward reading of Dr. Kanney’s record reinforces, for
example, limited strength and control issues with Andres’ abdominals, including limitations with
his sitting . . . .” Appellant’s Br. at 22. But he provides no citations to the record for this
assertion. Further, Andres has failed to show that any of the physicians documented clinical
findings consonant with his pain complaints, let alone assess any ongoing functional restrictions,
including sitting limitations. Subjective complaints of pain alone do not support a disability
finding. See generally 20 C.F.R. § 404.1529.
Conclusion. The ALJ’s decision is entitled to substantial deference because she
comprehensively discussed the objective evidence, while acknowledging that it supported the
conclusion that Andres’ severe impairments significantly affected his ability to perform certain
work activities. Nonetheless, as the ALJ reasonably concluded, the objective medical and other
evidence did not establish a complete inability to perform work with appropriate
accommodations. See 20 C.F.R. §§ 404.1527(d)(2); 404.1546(c). Andres failed to show that his
impairments precluded performance of the restricted range of sedentary work set forth in the
ALJ’s RFC assessment. Therefore, we AFFIRM the decision of the district court affirming the
final decision of the Commissioner.
6 The ALJ also found that despite Andres’ mental complaints, he never sought mental health treatment. R. 11, ID# 83. Andres’ failure to seek treatment was just one factor in the mix; it was not a determinative factor in assessing Andres’ credibility. See Strong v. Soc. Sec. Admin., 88 F. App’x 841, 846 (6th Cir. 2004).
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