Daniel Andres v. Comm'r of Soc. Sec.

Sixth Circuit

Daniel Andres v. Comm'r of Soc. Sec.

Court of Appeals for the Sixth Circuit·Decided April 30, 2018·No. 17-4070·Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 18a0221n.06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.

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

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.

§ 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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