Despain v. Social Security, Commissioner of

Filing 17

ORDER Adopting Report and Recommendation 14 Granting 10 Motion for Summary Judgment filed by Commissioner of Social Security, and Denying 9 Motion for Summary Judgment filed by Mark Anthony Despain Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARK ANTHONY DESPAIN,
Plaintiff,
Case No. 13-14378

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
/

OPINION AND ORDER OVERRULING PLAINTIFF’S OBJECTIONS,
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION,
DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT,
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
On September 30, 2014, Magistrate Judge R. Steven Whalen issued a Report
and Recommendation (“R&R”) (Dkt. # 14) in the above-captioned matter,
recommending that the court grant Defendant the Commissioner of Social Security’s
(the “Commissioner”) motion for summary judgment (Dkt. # 10) and deny Plaintiff’s
motion for summary judgment (Dkt. # 9). On October 14, 2014, Plaintiff filed objections
to the R&R. For the reasons stated below and in the well-reasoned R&R, the court will
overrule Plaintiff’s objections, adopt the R&R in full, grant Defendant’s motion for
summary judgment, and deny Plaintiff’s motion for summary judgment.
I. STANDARD
The filing of timely objections requires the court to “make a de novo
determination of those portions of the report or specified findings or recommendations
to which objection is made.” 28 U.S.C. § 636(b)(1); see United States v. Raddatz, 447
U.S. 667 (1980); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This de novo

review, in turn, requires this court to re-examine all the relevant evidence previously
reviewed by the magistrate to determine whether the recommendation should be
accepted, rejected, or modified in whole or in part. 28 U.S.C. § 636(b)(1). The court
may “receive further evidence” if desired. Id.
A party who files timely objections to a magistrate’s report in order to preserve
the right to appeal must be mindful of the purpose of such objections: to provide the
district court “with the opportunity to consider the specific contentions of the parties and
to correct any errors immediately.” Walters, 638 F.2d at 949–50. “The filing of
objections to a magistrate’s report enables the district judge to focus attention on those
issues—factual and legal—that are at the heart of the parties’ dispute.” Thomas v. Arn,
474 U.S. 140, 147 (1985) (footnote omitted). Further, “[o]nly those specific objections to
the magistrate’s report made to the district court will be preserved for appellate review;
making some objections but failing to raise others will not preserve all the objections a
party may have.” Smith v. Detroit Fed’n of Teachers, Local 231, 829 F.2d 1370, 1373
(6th Cir. 1987).
II. DISCUSSION
As a threshold matter, Plaintiff begins by “object[ing] to the entire analysis
contained in [the R&R] for the reasons set forth in Plaintiff’s Motion for Summary
Judgment and his supporting Brief.” (Dkt. # 15, Pg. ID 499.) A general objection, or
one that merely restates the arguments previously presented, is not sufficient to alert
the court to alleged errors on the part of the magistrate judge. “An ‘objection’ that does
nothing more than state a disagreement with a magistrate’s suggested resolution, or
simply summarizes what has been presented before, is not an objection as that term is
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used in this context.” Woelk v. Comm’r of Social. Sec., No. 13-12411, 2014 WL
2931411 (E.D. Mich. Jun. 30, 2014) (citing Howard v. Sec'y of Health and Human
Servs., 932 F.2d 505, 508 (6th Cir.1991)). Plaintiff also claims that the Magistrate
Judge’s “analysis is far too d[ef]erential to the Administrative Law Judge [(“ALJ”)].” (Dkt.
# 15, Pg. ID 499.) However, Plaintiff does not reference the proper level of deference
that should be given to the Commissioner’s1 decision, namely whether it is supported by
substantial evidence. 42 U.S.C. § 405(g); Sherrill v. Secretary of Health and Human
Services, 757 F.2d 803, 804 (6th Cir. 1985). “[T]here is a ‘zone of choice’ within which
decision makers can go either way without interference from the courts.” Mullen v.
Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc).
As a general matter, Plaintiff’s objections for the most part merely restate his
arguments made in the original summary judgment motion. Not much is said about the
Magistrate Judge’s analysis except to criticize it for agreeing with the ALJ.
Nevertheless, although Plaintiff did not enumerate specific objections, the court will
attempt to deal with each objection adopting the enumeration used in Defendant’s
response.
A. Objection # 1 - The July 2011 MRI
Plaintiff argues that the Magistrate Judge erred by “not conclud[ing] that the
[ALJ’s] summation of the July 2011 cervical spine MRI was not [sic] a distortion of the
record.” (Dkt. # 15, Pg. ID 499.) However, the ALJ relied on the very evidence Plaintiff
points to in determining Plaintiff’s Residual Function Capacity (“RFC”). Specifically, the

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When the Appeals Council denied review, the ALJ’s decision became the final
decision of the Commissioner.
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ALJ relied on consultative examiner Dr. Raffee’s report and Dr. Kovan’s examination
finding. The ALJ concluded that Plaintiff did indeed suffer “the severe impairments of
‘degenerative joint disease, degenerative disc disease, osteoarthritis, chronic pain, liver
disease, dysphagia, coronary artery disease, a depressive disorder and an anxiety
disorder’ but that none of the conditions met or medically equaled an impairment listed
in 20 C.F.R. Part 404, Subpart P, Appendix 1.” (Dkt. # 14, Pg. ID 488–89.) Although
Plaintiff does not specifically identify which additional impairment he believes he suffers,
it appears he is claiming that he has a “[d]isorder[] of the spine (e.g., herniated nucleus
pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease,
facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the
cauda equina) or the spinal cord, [with] [e]vidence of nerve root compression
characterized by neuro-anatomic distribution of pain, limitation of motion of the spine,
motor loss (atrophy with associated muscle weakness or muscle weakness)
accompanied by sensory or reflex loss and, if there is involvement of the lower back,
positive straight-leg raising test (sitting and supine).” 20 C.F.R. Part 404, Subpart P,
Appendix 1, 1.04. Plaintiff argues that “[n]erve roots can be impinged outside the spinal
cord and without evidence of a ‘spinal cord signal abnormality.’” That may be true, as far
as it goes. Nevertheless, this does not establish that such an impingement existed.
Plaintiff argues that an Electromyography (“EMG”) should have been performed.
However, on the record before him, the ALJ’s decision was supported by substantial
evidence and the R&R was correct to recognize it as such. The court’s review of the
record yields an identical conclusion; the ALJ comprehensively analyzed the record

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before him and incorporated much of it in his residual functional capacity assessment.
Plaintiff’s first objection is overruled.
B. Objection # 2 - Shoulder Pain
Plaintiff next complains that the Magistrate Judge should have faulted the ALJ’s
suggestion that Plaintiff had no complaints of shoulder pain prior to the filing of his prehearing brief. However, as the Magistrate Judge noted, the ALJ did “credit[] Plaintiff’s
allegations of shoulder pain by crafting an RFC restricting manipulative functioning
including overhead reaching” (Dkt. # 14, Pg ID 492), rather than discrediting Plaintiff’s
pain complaints, as he suggests in his objection. The court further agrees with the
Magistrate Judge that the one instance where the ALJ mistakenly referred to a May
2011 x-ray as an MRI constituted harmless error, as the ALJ correctly referred to that
study as an x-ray elsewhere in the opinion and noted that it contained unremarkable
results. (Id. at 492–93). Plaintiff’s second objection is overruled.
C. Objection # 3 - Leg Elevation
Plaintiff’s third objection centers around the need to elevate his feet. Apart from
“preprinted, generalized recommendations for treating edema given to Plaintiff during an
emergency room visit,” the only evidence Plaintiff submits regarding his need to elevate
his legs were treating notes dated June 4, 2012, submitted only after the ALJ’s June 29,
2012 decision. As to the preprinted notes, both the Magistrate Judge and the ALJ
reasonably concluded that they do not support an alleged need for leg or foot elevation.
(Id. at 493.) Plaintiff failed to show good cause for his failure to incorporate the June 4,
2012 treating notes into the record. See 42 U.S.C. § 404(g). In any case, the

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Magistrate Judge properly determined that the one-time elevation recommendation
contained in the treating notes would not have been likely to change the ALJ’s finding
that his edema was not chronic. (Dkt. # 14, Pg. ID 494-95.) Plaintiff’s third objection is
overruled.
D. Objection # 4 - Vocational Expert Hypothetical
Finally, Plaintiff claims the ALJ’s hypothetical to the Vocation Expert was deficient
because his impairments were not quantified and specifically included. However, as the
Magistrate Judge correctly noted, the hypothetical “need not contain a laundry list of all
his particularized conditions.” (Id. at 497 (citing Webb v. Comm’r of Social Sec., 368
F.3d 629, 632 (6th Cir. 2004).) Plaintiff’s citation to out-of-circuit cases to the contrary is
of no assistance to him. Circuit precedent holds that “a hypothetical question need only
reference all of a claimant's limitations, without reference to the claimant's medical
conditions.” Webb, 368 F.3d at 633. The ALJ’s hypothetical was adequate. The fourth
objection is overruled.
III. CONCLUSION
As noted by the Magistrate Judge, Plaintiff’s limitations should not be trivialized.
However, because the ALJ’s determination that Plaintiff was not disabled falls well
within the “zone of choice” accorded to him, it will not be disturbed by this court.
Accordingly,
IT IS ORDERED that Plaintiff’s objections (Dkt. # 15) are OVERRULED, and the
Magistrate Judge’s Report and Recommendation (Dkt. # 14) is ADOPTED IN FULL
AND INCORPORATED BY REFERENCE.

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IT IS FURTHER ORDERED that Defendant’s motion for summary judgment (Dkt.
# 10) is GRANTED and Plaintiff’s motion for summary judgment (Dkt. # 9) is DENIED.
A separate judgment will issue.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: November 26, 2014

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, November 26, 2014, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

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