Foster v. Social Security, Commissioner of

Filing 15

OPINION AND ORDER Adopting 12 Report and Recommendation, Denying 9 Motion for Summary Judgment filed by Debra Lynn Foster, and Granting 11 Motion for Summary Judgment filed by Commissioner of Social Security. Signed by District Judge David M. Lawson. (SPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DEBRA LYNN FOSTER,
Plaintiff,
v.

Case Number 15-11133
Honorable David M. Lawson
Magistrate Judge Patricia T. Morris

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________/
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION, DENYING PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT, GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT, AFFIRMING THE FINDINGS OF THE COMMISSIONER,
AND DISMISSING COMPLAINT
The plaintiff filed the present action on March 26, 2015 seeking review of the
Commissioner’s decision denying the plaintiff’s claims for a period of disability, disability insurance
benefits, and disabled widow’s benefits under Title II of the Social Security Act. The case was
referred to United States Magistrate Judge Patricia T. Morris pursuant to 28 U.S.C. § 636(b)(1)(B)
and E.D. Mich. LR 72.1(b)(3). Thereafter, the plaintiff filed a motion for summary judgment to
reverse the decision of the Commissioner and remand the case for further consideration by the
administrative law judge. The defendant filed a motion for summary judgment requesting
affirmance of the decision of the Commissioner. Magistrate Judge Morris filed a report on April 6,
2016 recommending that the defendant’s motion for summary judgment be granted, the plaintiff’s
motion for summary judgment be denied, and the decision of the Commissioner be affirmed. The
plaintiff filed timely objections to the recommendation and the defendant responded to the
objections. This matter is now before the Court.

The filing of timely objections to a report and recommendation 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 also United States v. Raddatz, 447 U.S. 667
(1980); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This de novo review requires the
court to re-examine all of the relevant evidence previously reviewed by the magistrate judge in order
to determine whether the recommendation should be accepted, rejected, or modified in whole or in
part. 28 U.S.C. § 636(b)(1).
“The filing of objections provides 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 950,
enabling the court “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). As a result, “‘[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.’” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (quoting Smith v.
Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987)).
The Court has reviewed the file, the report and recommendation, the plaintiff’s objections,
and the defendant’s response to plaintiff’s objections and has made a de novo review of the
administrative record in light of the parties’ submissions.
The plaintiff, who is now 58 years old, filed her application for disability insurance benefits
and an application for disabled widow’s benefits on June 19, 2012, when she was 53. The plaintiff
previously worked as a head cashier. In the original applications that are the subject of the present
appeal, the plaintiff alleged a disability onset date of December 9, 2011. The plaintiff has been

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diagnosed with degenerative joint disease of the knees, and osteoarthritis of the right hip, and has
undergone procedures to repair her left rotator cuff and install a prosthetic joint in her right knee.
The plaintiff’s applications for disability and disabled widow’s benefits were denied initially
on October 12, 2012. The plaintiff timely filed a request for an administrative hearing, and on
November 7, 2013, the plaintiff appeared before Administrative Law Judge (ALJ) Ramona L.
Fernandez. On January 3, 2014, ALJ Fernandez issued a written decision in which she found that
the plaintiff was not disabled. On February 4, 2015, the Appeals Council denied the plaintiff’s
request for review of the ALJ’s decision. The plaintiff filed her complaint seeking judicial review
on March 26, 2015.
As noted by the ALJ, to qualify for disabled widow benefits, the widow must show: (1) she
is the widow of a wage earner who died fully insured, (2) she has attained the age of 50 but not yet
60, (3) she is disabled as defined in the social security statute, and (4) her disability began before
the end of the prescribed period. 42 U.S.C. § 402(e); 20 C.F.R. § 404.335. As with other claims,
a widow must show that she is under a disability as defined by the Social Security Act. 42 U.S.C.
§ 423(a) & (d), 1382c(a). The ALJ found that the plaintiff met the non-disability requirements to
qualify for disabled widow benefits through August 31, 2016.
The ALJ reached her conclusion in her written decision that the plaintiff was not disabled
by applying the five-step sequential analysis prescribed by the Secretary in 20 C.F.R. § 404.1520.
She found that the plaintiff had not engaged in substantial gainful activity since December 9, 2011
(step one); the plaintiff suffered from degenerative joint disease of the knees, and osteoarthritis of
the right hip, and has undergone surgical procedures to repair her left rotator cuff tear and replace
her right knee joint, impairments which were “severe” within the meaning of the Social Security Act

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(step two); none of those impairments alone or in combination met or equaled a listing in the
regulations (step three).
Before applying the fourth step, the ALJ determined that the plaintiff had the residual
functional capacity to perform a limited range of sedentary work. She was limited to jobs that
required only occasional climbing, stooping, crouching, and balancing; no kneeling, crawling, or
using ladders, ropes, or scaffolds; occasional reaching with the left (non-dominant) upper extremity;
and must avoid concentrated exposure to extreme cold and wetness. A vocational expert testified
that the plaintiff’s prior relevant work as a head cashier is skilled and at the sedentary exertional
level as generally performed and at the light exertional level as actually performed. The vocational
expert testified that an individual with the plaintiff’s residual functional capacity could continue to
work as a head cashier as generally performed in the national economy. The ALJ then concluded
that the plaintiff is capable of performing past relevant work as a head cashier (step four). Based
on those findings, the ALJ concluded that the plaintiff was not disabled within the meaning of the
Social Security Act.
In challenging the ALJ’s determination, the plaintiff filed a motion for summary judgment
in which she argued that (1) the ALJ erred when she concluded that the plaintiff did not meet or
equal Listing 1.02A of the Commissioner’s listing of impairments, which deals with major
disfunctions of a joint; (2) the ALJ’s decision was not supported by substantial evidence; and (3) the
ALJ erred by not granting the plaintiff a closed period of disability and benefits from November
2011 through January 2013. In a thorough and detailed report, the magistrate judge recommended
that each of those arguments be rejected.

The plaintiff’s objection to that report and

recommendation does not challenge any of the discussion relating to the arguments she made in her

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summary judgment motion. Instead, the plaintiff contends that the Appeals Council failed to
consider records submitted after the ALJ’s decision, which she asserts supports ongoing disability
through August 2013. For the first time in her objection, the plaintiff asks the Court to remand the
case to the Commission for consideration of this evidence.
The plaintiff’s objection must be overruled for several reasons. First, as noted by the
defendant, the Appeals Council actually did consider the records in question; it simply found that
the records did not provide a basis for changing the ALJ’s decision. The defendant notes that
according to the “Notice of Appeals Council Action,” the Appeals Council “considered the reasons
[Plaintiff] disagree[s] with the decision and the additional evidence listed on the enclosed Order of
Appeals Council.” The order from the Appeals Council specifically identified Exhibits 10F and 11F
— the new evidence the plaintiff submitted — as evidence that was considered in denying review.
Second, as the magistrate judge noted, the plaintiff never asked the Court to remand the case
for consideration of new evidence under sentence six of 42 U.S.C. § 405(g). A sentence six remand
may be ordered when new evidence that was not considered by the ALJ comes to light, and “there
is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” 42
U.S.C. § 405(g); Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 243 (6th Cir. 2002).
Moreover, a Social Security claimant seeking such a remand has the burden of establishing
“(1) that the evidence is ‘new’ or was otherwise unavailable to the claimant, (2) that the evidence
is ‘material,’ and (3) that he or she has ‘good cause’ for failing to submit the evidence below.”
Glasco v. Comm’r of Soc. Sec., --- F. App’x ---, No. 15-3964, 2016 WL 1460384, at *2 (6th Cir.
Apr. 14, 2016) (citing Hollon ex rel. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 483 (6th Cir.
2006). The plaintiff has made no effort to develop any of these three elements. It should come as

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no surprise that “[i]ssues adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived,” and that “[i]t is not sufficient for a party to mention
a possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones.”
McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (internal quotation marks and citation
omitted); see also United States v. Reed, 167 F.3d 984, 993 (6th Cir. 1999) (invoking this rule to
deem an issue forfeited). The plaintiff merely “mention[ed]” the argument that the case should be
remanded to consider additional evidence, and for the first time in her objections to the magistrate
judge’s report and recommendation to boot. She has forfeited consideration of that argument.
Third, the magistrate judge did not discuss the merits of a sentence six remand because it was
not presented to her. In Murr v. United States, 200 F.3d 895 (6th Cir. 2000), the Sixth Circuit held
that new issues raised for the first time in objections to reports of magistrate judges are waived. The
Court explained:
Before moving to the merits, we note that Petitioner’s argument may be procedurally
barred. Petitioner did not raise this claim in his initial § 2255 motion. Rather, it was
first raised in his supplemental objections to the magistrate judge’s final Report and
Recommendation. The magistrate thus never had the opportunity to consider this
issue. Courts have held that while the Magistrate Judge Act, 28 U.S.C. § 631 et seq.,
permits de novo review by the district court if timely objections are filed, absent
compelling reasons, it does not allow parties to raise at the district court stage new
arguments or issues that were not presented to the magistrate. See United States v.
Waters, 158 F.3d 933, 936 (6th Cir.1998) (citing Marshall v. Chater, 75 F.3d 1421,
1426-27 (10th Cir.1996) (“issues raised for the first time in objections to magistrate
judge’s report and recommendation are deemed waived”)); see also Cupit v. Whitley,
28 F.3d 532, 535 (5th Cir.1994); Paterson-Leitch Co., Inc. v. Massachusetts Mun.
Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir.1988); Anna Ready Mix, Inc. v.
N.E. Pierson Constr. Co., Inc., 747 F. Supp. 1299, 1302-03 (S.D.Ill.1990). Hence,
Petitioner’s failure to raise this claim before the magistrate constitutes waiver.
Id. at 902 n.1. For the same reasons, the Court finds that this issue is waived and need not be
addressed further on the merits.

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Fourth, the plaintiff is not entitled to have her case remanded under sentence four of section
405(g). Sentence four of 42 U.S.C. § 405(g) states:
The Court shall have the power to enter, upon the pleadings and transcript of the
record, a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a
rehearing.
The authority conferred upon the Court by this sentence, however, is subject to the substantial
evidence rule. Sentence five of Section 405(g) states: “The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .” The
magistrate judge found that the ALJ’s determination that the plaintiff was not disabled was
supported by substantial evidence in the administrative record, and the plaintiff has not challenged
that finding in her objections.
After a de novo review of the entire record and the materials submitted by the parties, the
Court concludes that the magistrate judge properly reviewed the administrative record and applied
the correct law in reaching her conclusion. The Court has considered the plaintiff’s objection to the
report and finds that it lacks merit.
Accordingly, it is ORDERED that the magistrate judge’s report and recommendation [dkt.
#12] is ADOPTED.
It is further ORDERED that the plaintiff’s objection [dkt. #13] is OVERRULED.
It is further ORDERED that the plaintiff’s motion for summary judgment [dkt. #9] is
DENIED.
It is further ORDERED that the defendant’s motion for summary judgment [dkt #11] is

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GRANTED. The findings of the Commissioner are AFFIRMED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: August 1, 2016

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on August 1, 2016.
s/Susan Pinkowski
SUSAN PINKOWSKI

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