Oslin v. Social Security

Filing 24

ORDER Adopting 19 Report and Recommendation for Granting 14 Motion for Summary Judgment filed by Lisa Oslin, and Denying 17 Motion for Summary Judgment filed by Social Security, Commissioner of. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Lisa Oslin,
Plaintiff,
Case No. 15-14126
Hon. Sean F. Cox
Magistrate Judge Patricia T. Morris

v.
Commissioner of Social Security,
Defendant.
_______________________________/

ORDER ACCEPTING AND ADOPTING
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff Lisa Oslin (“Plaintiff”) brought this action seeking judicial review of Defendant
Commissioner of Social Security’s (“Defendant”) determination that she is not entitled to Social
Security Income Benefits and Disability Insurance Benefits. (Doc. # 1).
All proceedings in this case were subsequently referred to Magistrate Judge Patricia T.
Morris pursuant to 28 U.S.C. § 636(b)(1)(B). (Doc. # 3). Sometime thereafter, Plaintiff and
Defendant filed cross-motions for summary judgment. (Doc. # 14; Doc. # 17).
On January 24, 2017, Magistrate Judge Morris issued a Report and Recommendation
(“R&R”), wherein she recommended that the Court DENY Defendant’s Motion for Summary
Judgment, GRANT Plaintiff’s Motion for Summary Judgment, and REMAND this case to the
Commissioner under sentence four of 42 U.S.C. § 405(g). (R&R at 30). Defendant filed timely
objections to the January 24, 2017 R&R on February 7, 2017. (Doc. # 21, Def.’s Objs.).
Plaintiff timely responded to Defendant’s objections on February 21, 2017. (Doc. # 23, Pl.’s
Resp.).

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The Court finds Defendant’s objections to be improper and without merit. The Court
shall therefore ACCEPT AND ADOPT the R&R, GRANT Plaintiff’s Motion for Summary
Judgment (Doc. #14), and DENY Defendant’s Motion for Summary Judgment (Doc. # 17).
STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 72(b), a party objecting to the recommended
disposition of a matter by a Magistrate Judge must file objections to the R&R within fourteen
(14) days after being served with a copy of the R&R. Fed. R. Civ. P. 72(b)(2). Objections must
“(A) specify the part of the order, proposed findings, recommendations, or report to which a
person objects; and (B) state the basis for the objection.” E.D. Mich. LR 72.1(d).
Objections are not “a second opportunity to present the argument already considered by
the Magistrate Judge.” Betancourt v. Ace Ins. Co. of Puerto Rico, 313 F. Supp. 2d 32, 34
(D.P.R. 2004). Moreover, the district court should not consider arguments that have not first
been presented to the magistrate judge. See Stonecrest Partners, LLC v. Bank of Hampton
Roads, 770 F. Supp. 2d 778, 785 (E.D.N.C. 2011).
“The district judge must determine de novo any part of the magistrate judge’s disposition
that has been properly objected to. The district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the magistrate judge
with instructions.” Fed. R. Civ. P. 72(b)(3).
ANALYSIS
In her R&R, Magistrate Judge Morris determined that the Administrative Law Judge’s
(“ALJ”) Step Three analysis–whether Plaintiff met or equaled Social Security Listing 1.04–was
defective because the ALJ failed to consider the medical examination records of Plaintiff’s

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neurosurgeon, Dr. Palavali. (R&R at 21-25). The Magistrate Judge further found “that because
the ALJ failed to consider the entire record, substantial evidence does not support her RFC
findings.” (R&R at 29-30). Defendant lodges three objections to the Magistrate Judge’s R&R.
Objection # 1. In her first objection, Defendant improperly reasserts arguments already
advanced before Magistrate Judge Morris: (1) the State agency physician reviewed the evidence
of record and explicitly considered Listing 1.04, finding that Plaintiff was not disabled because
she did not meet or equal that Listing; (2) the record is “filled with evidence that Plaintiff did not
meet or equal Listing 1.04;” (3) the statement in the Palavali note that Plaintiff had “nerve root
compromise” appears to be a scrivener’s error; and (4) the fact that the ALJ did not address the
Palavali notes does not indicate that the ALJ did not consider them. (Def.’s Objs. at 3-4).
Magistrate Judge Morris’s R&R properly rejects these arguments. Specifically, the
Magistrate Judge noted that:
[T]he ALJ’s opinion reveals that she did not in fact consider Dr. Palavali’s
examination records either. She remarks for instance, that “the undersigned did
not find evidence in the record that surgery has been recommended,” (Tr. 89),
even though Dr. Palavali plainly recommended surgery in Exhibit 17F.
****
Though the record contains little evidence of nerve root compromise or impaired
sensation, reflexes, and motor functioning, the ALJ’s frequent assertion that it
contained “no [such] evidence” proves mistaken.
****
That the Commissioner can point to “multiple findings that squarely preclude”
[Plaintiff’s] claim to meet Listing 1.04 only serves to illustrate a conflict in the
medical evidence, and this Court remains ill-equipped to settle such conflicts.
(R&R at 23, 25). Defendant fails to point to a specific deficiency in the Magistrate Judge’s
reasoning as to these points. Moreover, the Court agrees with the Magistrate Judge.
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Defendant also unpersuasively objects to Magistrate Judge Morris’s conclusion that the
ALJ’s failure to consider the Palavali notes, which “addressed each aspect of Listing 1.04,”
“imperiled her Step Three inquiry into whether [Plaintiff] met Listing 1.04.” (R&R at 25).
Specifically, Defendant argues that Dr. Palavali’s notes did not address “each aspect” of the
Listing. This argument is not persuasive because Defendant disregards that the ALJ was also
required to determine whether Plaintiff medically “equaled” Listing 1.04. To that end,
Magistrate Judge Morris correctly noted that the ALJ’s Step Three equivalency analysis was
defective because there is no indication that the ALJ considered Dr. Palavali’s notes. (R&R at
25). For these reasons, and the reasons outlined in the R&R, Defendant’s first objection is
overruled.
Objection # 2. In her second objection, Defendant summarily asserts that the ALJ
resolved any conflict in the medical evidence when she found that Plaintiff did not meet or equal
Listing 1.04. (Def.’s Objs. at 4). Defendants’ objection is improper. Defendant fails to point to
any defect in the Magistrate Judge’s analysis. Nor does Defendant address the numerous
conflicts identified in the R&R. As such, Defendant’s second objection is overruled.
Objection # 3. In her last objection, Defendant states that “[t]he remainder of the R&R
essentially incorporates by reference the propositions that the Commissioner discussed supra.
The Commissioner thus incorporates that discussion by reference, along with the corresponding
discussion set forth in the Decision and in the Motion.” (Def.’s Objs. at 5) (emphasis in
original). Here, Defendant has not presented any argument that persuades this Court to reject
the Magistrate Judge’s resolution of the challenged issues. Notably, this objection is improper as
it fails to identify a specific deficiency in the Magistrate Judge’s reasoning. As such,

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Defendant’s third objection is overruled.
CONCLUSION & ORDER
For the foregoing reasons, the Court shall ADOPT AND ACCEPT the January 24, 2017
R&R. Accordingly, Plaintiff’s Motion for Summary Judgment is GRANTED and Defendant’s
Motion for Summary Judgment is DENIED. The Court shall therefore REMAND this case
back to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g).
IT IS SO ORDERED.
s/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: March 6, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of record on
March 6, 2017, by electronic and/or ordinary mail.
s/Jennifer McCoy
Case Manager

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