                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0345n.06

                                           No. 09-3500                                 FILED
                                                                                    Jun 07, 2010
                          UNITED STATES COURT OF APPEALS
                                                                              LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


DAVID SWAIN,                                             )
                                                         )        ON APPEAL FROM THE
       Plaintiff - Appellant,                            )        UNITED STATES DISTRICT
                                                         )        COURT     FOR    THE
v.                                                       )        NORTHERN DISTRICT OF
                                                         )        OHIO
COMMISSIONER OF SOCIAL SECURITY,                         )
                                                         )
       Defendant - Appellee.                             )
                                                         )


BEFORE: MARTIN, SUHRHEINRICH, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. David Swain appeals from the district court’s

affirmance of the Commissioner of Social Security’s decision denying his application for Social

Security Disability Insurance Benefits (DIB) on the basis that he was not disabled prior to the

expiration of his insured status in March 2002. We affirm.

                                                 I

       Swain alleges that he became disabled in August 2000, when he aggravated a prior back

injury while lifting a heavy pot. His insured status expired on March 31, 2002. Swain has an

extensive record of physician visits.1 He first sought treatment for his injury in December 2001

from Dr. Neriel Bernblum, to whom he reported pain radiating from his left buttock to his left foot,




       1
        We do not find it necessary to recount every physician visit and diagnosis, so we only
recount the facts most relevant to the ALJ’s decision.
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Swain v. Comm’r of Soc. Sec.

and left foot numbness. Dr. Bernblum ordered a magnetic resonance imaging scan (MRI) of Swain’s

lumbar spine, which revealed disc herniation at L5-S1.

       Swain was referred to Dr. Thomas O’Hara, who performed microdiscectomy surgery to repair

the herniated disc in January 2002. In a February followup visit, an MRI showed no displacement

of the left S1 nerve root, and Dr. O’Hara prescribed physical therapy and advised Swain to resume

normal activities if he was doing well.

       Following the expiration of his insured status, Swain visited a number of physicians. On

April 2, 2002, he saw Dr. Brian Hoeflinger, complaining of continued left leg pain and additional

pain in his right leg. Swain refused an epidural steroid injection. He returned to Dr. Hoeflinger on

May 14, 2002, and reported that his left leg pain had improved, but that he continued to have

significant pain in his right leg. In June and July 2002, Swain saw two different pain specialists, Dr.

Ashok Salvi and Dr. James Bassett, Jr., for continued pain in his right leg, back, buttocks, and hip.

However, he refused recommended injections for his pain and reported that he was taking no

medicines.

       In October 2002, Swain saw a neurologist, Dr. Duane Gainsburg. Swain reported that he was

pain-free for a week after back surgery, but he had subsequently redeveloped low back pain and right

leg pain, with pain again spreading to his left side. Dr. Gainsburg diagnosed Swain as having

chronic lumbosacral sprain syndrome interacting with depression. Dr. Gainsburg also ordered

another MRI, which showed expected postoperative changes. At a November appointment, Swain

reported that the medicines he was taking were “significantly beneficial” for his pain and mood.



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Swain v. Comm’r of Soc. Sec.

Swain also began to receive treatment from Dr. John Pierce, a family practitioner, in November

2002.

        Drs. Pierce and Gainsburg both completed residual functional capacity analyses of Swain in

early 2003. Dr. Gainsburg found that Swain could sit for up to one hour at a time and for four hours

per day, stand for fifteen minutes at a time, walk for thirty minutes at a time, and stand and walk for

two hours per day. His assessment stated that Swain could lift one to two pounds frequently and five

pounds occasionally, but not more than five pounds. Dr. Gainsburg also wrote that Swain had severe

fatigue, could not perform repetitive pushing and pulling of arm controls, could not perform fine

manipulation, and was sometimes unable to grip things and dropped them. Dr. Pierce’s assessment

found that Swain was able to stand and sit for no more than thirty minutes, and lift up to ten to

fifteen pounds, but was unable to grasp if it was associated with pulling or pushing.

        Swain’s medical records were reviewed for the Social Security Administration in December

2002 by Dr. Maria Congbalay and in May 2003 by Dr. Paul Morton. Drs. Congbalay and Morton

perceived Swain to have greater residual functional capacity than either Drs. Pierce or Gainsburg.

Dr. Congbalay found that Swain could occasionally lift 20 pounds and frequently lift ten; stand, walk

and sit up to six hours per day; and had no push/pull or manipulative limitations. Dr. Morton

reported similar, but slightly more restrictive limitations, finding that Swain could occasionally lift

20 pounds and frequently lift ten; walk up to two hours per day and stand up to four; sit about six

hours a day; and had no manipulative limitations.2



        2
            Dr. Morton did not indicate whether Swain had push/pull limitations.

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Swain v. Comm’r of Soc. Sec.

       Swain filed an application for disability insurance benefits on September 30, 2002. His claim

was denied, as was his request for reconsideration. Swain requested a hearing, which was held

before an ALJ on November 4, 2004. At the hearing, Swain and vocational expert Chris Young

testified. The ALJ issued a decision on February 16, 2005, denying Swain’s application for benefits.

Swain appealed to the district court and, pursuant to a joint stipulation, the matter was remanded to

the Agency for a new hearing, with instructions that the ALJ expressly articulate the weight given

to the opinions of Drs. Pierce and Gainsbourg. The ALJ held a second hearing on June 22, at which

Swain, his wife, and vocational expert Joseph Thompson testified. The testimony and exhibits from

the prior hearing were also incorporated into the record.

       Swain testified that he had been unable to work since his back injury in August 2000 and that

he did not seek medical attention until December 2001 because he was uninsured and could not

afford to do so. He stated that his injury had worsened after Dr. O’Hara performed surgery and that

he was in constant pain that was not alleviated by medication.

       At the 2004 hearing, the ALJ asked vocational expert Young to evaluate the ability to work

of a hypothetical individual with Swain’s prior experience,3 who could perform light work with the

following additional limitations: no climbing of ladders, ropes, or scaffolds; no working around

unprotected heights; no squatting, stooping, or crawling. The hypothetical also assumed that the

individual would have to have a sit/stand option and could sit or stand for up to thirty minutes at a

time. Young stated that the individual could not perform any of Swain’s past relevant work, but


       3
      Swain has past relevant work experience as an auto and truck mechanic, security guard, and
woodworker.

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Swain v. Comm’r of Soc. Sec.

could perform a number of unskilled jobs available in the local and national economies, including

electronics assembler, mail clerk, and electronics inspector. At the 2007 hearing, vocational expert

Thompson was questioned by Swain’s attorney. Thompson testified that an individual who could

only sit, stand, and walk a total of one and three-quarter hours in an eight-hour day could not do any

job.

       In a decision dated August 10, 2007, the ALJ found that Swain was not disabled through

March 31, 2002, when his insured status expired, and was therefore ineligible for benefits pursuant

to 42 U.S.C. §§ 423(a)(1)(D); 423(d)(1)(A). The ALJ followed the sequential five-step analysis

detailed in 20 C.F.R. § 404.1520. The ALJ found that Swain’s degenerative disc disease was a

severe impediment that left him unable to perform past relevant work. The ALJ found, however, that

Swain was still capable of performing unskilled light work with the limitations included in the

hypothetical posed to the vocational expert at the 2004 hearing. The ALJ concluded that Swain

could perform work available in significant numbers in the national economy and was not disabled

for the purposes of the Social Security Act.

       In reaching this decision, the ALJ determined that Swain was “not entirely credible.” The

ALJ also found that the opinions of Drs. Pierce and Gainsburg were entitled to less weight because

they did not see Swain prior to the expiration of his insured status and because they relied on Swain’s

unreliable, subjective accounts of his medical history. After the Appeals Council denied review,

Swain sought judicial review in the district court. Adopting the magistrate judge’s report and

recommendation, the district court affirmed the ALJ’s decision. Swain appeals.

                                                  II

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Swain v. Comm’r of Soc. Sec.

        This court reviews a district court’s decision in a social security case de novo. Ealy v.

Comm’r of Soc. Sec. 594 F.3d 504, 512 (6th Cir. 2010). This review “is limited to determining

whether the Commissioner's decision ‘is supported by substantial evidence and was made pursuant

to proper legal standards.’” Id. (quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.

2007)); see also 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any

fact, if supported by substantial evidence, shall be conclusive”). “The substantial-evidence standard

is met if a reasonable mind might accept the relevant evidence as adequate to support a conclusion

[and] . . . presupposes that there is a zone of choice within which the decisionmakers can go either

way, without interference by the courts.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir.

2009) (internal citation omitted). However, “even if supported by substantial evidence, ‘a decision

of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where

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

Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of

Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).

                                                   III

        Swain’s argument on appeal is premised almost entirely on the alleged errors committed by

the magistrate judge and the district court. In particular, Swain faults the district court for failing to

identify how material inconsistencies in the record were considered and resolved, as required of an

adjudicator in SSR 96-8p. However, the relevant adjudicator for the purposes of SSR 96-8p is the

ALJ, not the district court or the magistrate judge. Their review, like this court’s, is limited to

whether the record contains substantial evidence in support of the ALJ’s explanation of how

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inconsistencies were resolved. They are not required or permitted to conduct their own separate

analysis. The district court’s order properly considered the evidence in the record relevant to

determining if substantial evidence supported the ALJ’s decision and correctly concluded that it did.

       Swain does appear to challenge, at least indirectly, the failure of the ALJ to accord significant

or controlling weight to the opinions of Drs. Pierce and Gainsburg and the ALJ’s finding that Swain

was not entirely credible. Swain does not point to any particular error in the ALJ’s decision, but

rather states reasons why the ALJ should have found in his favor.4 However, this court only

determines whether the ALJ’s decision is supported by substantial evidence. We find that it is.

       Swain states that there are no inconsistencies in the record that warrant the ALJ’s adverse

credibility finding, but he fails to mention or respond to the litany of inconsistent statements and

actions noted by the ALJ in its decision. Swain does not contest that he gave multiple, conflicting

accounts of his treatment history, symptoms, and use of medication to various physicians. We give

deference to the credibility determinations of an ALJ provided that they are supported by substantial

evidence. White v. Comm’r of Soc. Sec., 572 F.3d 272, 287 (6th Cir. 2009) (citation omitted). Swain

has failed to demonstrate that the ALJ’s credibility determination was not supported by substantial

evidence.

       Swain’s claim that the opinions of Drs. Pierce and Gainsburg should have been given more

weight is similarly without merit. We have held that, although a treating physician’s opinion is


       4
         Swain states that he would be entitled to disability benefits if the evidence in the case were
viewed in the light most favorable to his position. Even if correct, the ALJ was not required to view
the evidence in his favor, and this court is prohibited from doing so on review of a decision denying
benefits.

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Swain v. Comm’r of Soc. Sec.

generally given “substantial, if not controlling, deference,” it is “only given such deference when

supported by objective medical evidence.” Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th

Cir. 2004) (holding that the Commissioner properly rejected claimant’s treating physician’s opinion

where the opinion was “inconsistent with the substantial evidence in the record indicating

otherwise.”).5

       Here, the ALJ explained that the doctors were not treating physicians prior to the expiration

of Swain’s insured status. Further, the ALJ noted that their opinions were made without the benefit

of Swain’s complete medical records, were based on Swain’s own subjective accounts, and were

inconsistent with medical records generated at the relevant time. Again, Swain fails to address these

issues on appeal. Rather, he states that the ALJ failed to give “good reasons” for the weight

accorded to the physicians’ opinions, as required by 20 C.F.R. § 404.1527(d)(2). We conclude that

the ALJ gave sufficient reasons for its decision not to give controlling weight to the opinions of Drs.

Pierce and Gainsburg. See, e.g., Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 875-77 (6th Cir. 2007)

(affirming the ALJ’s decision not to give controlling weight to treating physicians where their

opinions conflicted with other substantial evidence in the record and were based on the claimant’s

unreliable reports). Further, this court has held that a treating physician’s opinion is “minimally

probative” when the physician began treatment after the expiration of the claimant’s insured status.



       5
         In Warner, this court also noted that it was significant that the ALJ “did not reject wholesale
the conclusions” of the treating physician, and incorporated some of his conclusions in formulating
the hypothetical presented to the vocational expert. The ALJ in the instant case did the same,
incorporating Dr. Pierce’s assessment that Swain could sit/stand for thirty minutes at a time in the
residual functional capacity determination and the hypothetical to vocational expert Young.

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Siterlet v. Sec’y of Health & Human Servs., 823 F.2d 918, 920 (6th Cir. 1987). Thus, the ALJ

properly stated “good reasons” supported by substantial evidence to explain the weight accorded to

Drs. Pierce and Gainsburg.

                                                 IV

       Swain briefly argues that the district court erred when it determined that he waived his

argument concerning the ALJ’s treatment of his psychological claims. In his merits brief before the

district court, Swain argued only that the ALJ gave improper weight to the treating physicians’

opinion, that the ALJ employed the wrong pain standard, and that the Commissioner failed to

establish that Swain could perform other work in the national economy. He did not raise the

psychological disability argument until his objections to the magistrate judge’s report and

recommendation. Even then, Swain’s argument consisted only of his assertion that the issue had not

been properly addressed by the ALJ or magistrate judge. The district court found that Swain failed

to provide support for his claim and that the claim was waived, regardless.

       The district court’s assessment was correct. “[A] claim raised for the first time in objections

to a magistrate judge's report is deemed waived.” See, e.g., Ward v. United States, 208 F.3d 216, 216

(6th Cir. 2000) (unpublished table decision) (citing Marshall v. Chater, 75 F.3d 1421, 1426-27 (10th

Cir. 1996)). Further, Swain has not made any attempt at any level to develop an argument as to how

the ALJ’s treatment of his psychological issues was improper. The ALJ found that Swain’s pain

interfered with his ability to concentrate and sleep and that he therefore could not perform detailed

or complex tasks. The ALJ noted, however, that there was no indication in the record that Swain



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had ever been diagnosed with a mental impairment. Swain neither disputes this finding, nor

advances any argument as to how the ALJ’s treatment of his mental residual function was in error.

                                               V

       For the reasons set forth above, we AFFIRM the judgment of the district court.




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