England v. Social Security

Filing 25

OPINION AND ORDER Adopting 22 Report and Recommendation, Granting 20 Motion for Summary Judgment filed by Commissioner of Social Security, Denying 17 Motion for Summary Judgment filed by Jesse Lee England, Affirming the Findings of the Commissioner and Dismissing the Complaint. Signed by District Judge David M. Lawson. (SPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JESSE LEE ENGLAND,
Plaintiff,
v.

Case Number 15-12818
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 August 10, 2015 seeking review of the
Commissioner’s decision denying her claims for child’s disability insurance and supplemental
security income benefits under Title II and Title XVI 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 July 11,
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 a timely document purporting to be objections to the report and recommendation, and
the defendant filed a response. The 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 Court has reviewed the file, the report and recommendation, and the 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 25 years old, filed her applications for child’s disability insurance
and supplemental security income benefits on July 19, 2012, when she was 21. She finished high
school but has never been regularly employed. In the application that is the subject of the present
appeal, the plaintiff alleged a disability onset date of July 28, 2010. The plaintiff has been diagnosed
with lupus, fibromyalgia, seizures, and post-traumatic stress disorder. She also had a shoulder injury
that was corrected by surgery, and a history of opioid abuse.
The plaintiff’s application for disability benefits was denied initially on November 21, 2012.
The plaintiff timely filed a request for an administrative hearing, and on January 14, 2014, the
plaintiff appeared before Administrative Law Judge (ALJ) David A. Mason, Jr. On February 28,
2014, ALJ Mason issued a written decision in which he found that the plaintiff was not disabled.
On June 12, 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 August 10, 2015.

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The ALJ acknowledged that, under section 202(d) of the Social Security Act, in order to
receive child’s insurance benefits the claimant must show that she has a disability that began before
the age of 22. ALJ Mason reached his conclusion that the plaintiff was not disabled by applying the
five-step sequential analysis prescribed by the Secretary in 20 C.F.R. §§ 404.1520, 416.920. He
found that the plaintiff had not engaged in substantial gainful activity since July 28, 2010 (step one);
the plaintiff suffered from lupus, fibromyalgia, seizures, and post-traumatic stress disorder, and she
had a history of surgical shoulder injury repair and opioid abuse, impairments which were “severe”
within the meaning of the Social Security Act (step two); none of those impairments alone or in
combination met or equaled a listing in the regulations (step three); and the plaintiff had no past
relevant work experience (step four).
In applying the fifth step, the ALJ concluded that the plaintiff had the residual functional
capacity to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), with the
following limitations: (1) the work must be limited to simple, routine, repetitive tasks in a work
environment free of fast-paced production requirements and requiring only simple work-related
decisions, with few or no changes in work setting; (2) the plaintiff must have only occasional contact
with co-workers, supervisors, and the general public; (3) she may be off-task for a total of five
minutes per hour outside of break and meal periods, for a total of 8% of a normal work shift; (4) she
can climb ramps and stairs only occasionally and never can climb ropes or scaffolds; (5) she can
balance, stoop, kneel, crouch, and crawl only occasionally; (6) she must have no exposure to
“dangerous hazards,” dangerous moving machinery, or unprotected heights; (7) she must have no
concentrated exposure to temperature extremes, humidity, dampness, cold, heat, fumes, dusts, odors,
or gases, and cannot work in poorly ventilated areas; (8) she could not perform any overhead

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reaching with her right arm; and (9) she must be required no more than “frequently” to use her hands
for grasping and fingering, to use her right hand for pushing or pulling, or to reach in any direction
with her right arm. A vocational expert testified that the plaintiff could perform unskilled light work
such as packager and assembler, and that there are 450,000 jobs in those occupations in the national
economy. Based on those findings and using Medical Vocational Rule 202.20 as a framework, the
ALJ concluded that the plaintiff was not disabled within the meaning of the Social Security Act.
The crux of the dispute is the ALJ’s determination that the severity of the plaintiff’s
symptoms and limitations are not as disabling as she claims, and that there is a substantial disconnect
between the plaintiff’s own reports and the medical evidence in the record. In her challenge to the
ALJ’s decision, the plaintiff raised four arguments in her motion for summary judgment: (1) the ALJ
(whom plaintiff’s counsel identified as “the magistrate”) failed to give proper weight to the opinions
of treating physician Dr. David Vallance; (2) the ALJ improperly discounted Ms. England’s reports
of pain, fatigue, memory loss, and other symptoms of fibromyalgia and lupus, concluding that they
were not disabling; (3) the ALJ did not properly account for Ms. England’s mental impairments,
which caused moderate limitations in her concentration, persistence, or pace (“CPP”); and (4) the
ALJ did not sufficiently account for England’s concentration limitations.
The magistrate judge addressed each of these arguments thoroughly, making explicit
references to the administrative record and citing the appropriate law. The plaintiff’s purported
objections take issue with none of the magistrate judge’s determinations, observations, or
conclusions. Instead, the objections are nothing more than a verbatim, cut-and-paste repetition of
the plaintiff’s brief in support of her motion for summary judgment.

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“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)).
Objections that are “merely recitations of the identical arguments that were before the
magistrate judge” do not constitute “specific written objections to the proposed findings and
recommendations.” Fed. R. Civ. P. 72(b)(2). See Owens v. Comm’r of Soc. Sec., No. 12-47, 2013
WL 1304470, at *3 (W.D. Mich. Mar. 28, 2013). As the Owens court explained:
This Court is not obligated to address objections made in this form because the
objections fail to identify the specific errors in the magistrate judge’s proposed
recommendations, see, e.g., Camardo v. Gen. Motors Hourly-Rate Emps. Pension
Plan, 806 F.Supp. 380, 382 (W.D.N.Y. 1992) (recitations of nearly identical
arguments are insufficient as objections and constitute an improper “second bite at
the apple”), and such objections undermine the purpose of the Federal Magistrate’s
Act, 28 U.S.C. § 636, which serves to reduce duplicative work and conserve judicial
resources, see, e.g., Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 509
(6th Cir. 1991). See also Nickelson v. Warden, No. 1:11-cv-334, 2012 WL 700827,
at *4 (S.D. Ohio Mar.1, 2012) (“[O]bjections to magistrate judges’ reports and
recommendations are not meant to be simply a vehicle to rehash arguments set forth
in the petition.”). Therefore, after a de novo review of the record, the Court
incorporates the magistrate judge’s analysis of Plaintiff’s restated arguments . . . and
adopts the R & R as the opinion of the Court.
Ibid. (footnote omitted).
Likewise, in this case, because the plaintiff has not pointed to any part of the magistrate
judge’s analysis that is erroneous, and has merely restated — word-for-word — her summary
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judgment arguments, and because the Court agrees with the magistrate judge’s disposition of those
arguments, the Court will adopt the report and recommendation as the opinion of the Court.
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 all of the plaintiff’s objections
to the report and finds them to lack merit.
Accordingly, it is ORDERED that the magistrate judge’s report and recommendation [dkt.
#22] is ADOPTED.
It is further ORDERED that the plaintiff’s objections [dkt. #23] are OVERRULED.
It is further ORDERED that the plaintiff’s motion for summary judgment [dkt. #17] is
DENIED.
It is further ORDERED that the defendant’s motion for summary judgment [dkt #20] is
GRANTED. The findings of the Commissioner are AFFIRMED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: October 13, 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 October 13, 2016.
s/Susan Pinkowski
SUSAN PINKOWSKI

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