                             NOT RECOMMENDED FOR PUBLICATION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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No. 17-4070, Andres v. Comm’r of Soc. Sec.


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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No. 17-4070, Andres v. Comm’r of Soc. Sec.


        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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