Jackson v. COLVIN

Filing 20

ORDER accepting 17 Report and Recommendation on 15 Motion for Summary Judgment, 14 Motion for Summary Judgment. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BARBARA JACKSON,
Plaintiff,
Case No. 17-CV-10060
HON. GEORGE CARAM STEEH

vs.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
___________________________/

ORDER ACCEPTING MAGISTRATE JUDGE=S
REPORT AND RECOMMENDATION [DOC. 17]
This matter is before the court on the parties' cross-motions for
summary judgment as to plaintiff Barbara Jackson=s claim for judicial
review of defendant Commissioner of Social Security's decision that she is
not entitled to disability insurance benefits (DIB) or Supplemental Security
Income (SSI) under the Social Security Act. On January 16, 2018,
Magistrate Judge Stafford issued a report and recommendation
recommending that plaintiff's motion for summary judgment be denied, that
defendant=s motion for summary judgment be granted. Objections to that
report have been filed by plaintiff within the established time period. The
-1-

court has reviewed the file, record, and Magistrate Judge's report and
recommendation, and now addresses plaintiff=s objections.
Plaintiff raises two objections to the Magistrate Judge=s
recommendation that the ALJ=s finding that plaintiff was not disabled under
the Commissioner=s five-step disability analysis was supported by
substantial evidence. The first objection is that the ALJ’s conclusion that
plaintiff was not disabled because she had no medically determinable
impairments that met the qualifications for a severe impairment at step two
was improper. A severe impairment is “any impairment or combination if
impairments which significantly limits your physical or mental ability to do
basic work activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c). The severe
impairment requirement at step two is a “de minimis hurdle” that serves to
screen out groundless Social Security claims.” Higgs v. Bowen, 880 F.2d
860, 862-63 (6th Cir. 1988). The claimant bears the burden of showing
the severity of their medically determinable impairments. Bowen v.
Yuckert, 482 U.S. 137, 146 (1987).
Plaintiff identifies several impairments as causing significant
limitations in performing her work activities. Two of the identified
impairments, vision loss and hypertensive retinopathy, were not claimed in
-2-

her initial brief and therefore cannot be raised for the first time in an
objection to an R&R. Murr v. United States, 200 F.3d 895, 902 n.1 (6th
Cir. 2000). The other impairments are a recitation of the same arguments
plaintiff raised in her initial district court brief before the Magistrate Judge,
as opposed to challenging part of the R&R. See Funderburg v. Comm’r of
Soc. Sec., No. 15-10068, 2016 WL 1104466, at *1 (E.D. Mich. Mar. 22,
2016).
Even if the court considered plaintiff’s reiteration of her previous
argument, plaintiff only cites to her hearing testimony to support her
argument that her impairments are severe. However, to meet her burden
of proof, plaintiff must present medical evidence of a severe impairment,
which she has failed to do. The ALJ considered plaintiff’s subjective
complaints and concluded that they were not substantiated with objective
evidence. The Magistrate Judge did not err in concluding that plaintiff did
not sustain her burden of establishing a severe impairment.
Plaintiff’s second objection concerns the Magistrate Judge’s
conclusion that the plaintiff’s reliance on the ALJ’s oral statement at the
hearing is without merit. At the hearing, the ALJ stated, “I’m going to grant
your benefits back to the onset date of 2013. Your attorney will explain to
-3-

you how that works, converting it to disability; okay?” Plaintiff contends
that this oral statement is clearly inconsistent with the ALJ’s final written
decision denying benefits.
The Magistrate Judge discussed the applicable regulations, noting
that 20 C.F.R. § 404.953(a) requires the ALJ to prepare a written decision,
and 20 C.F.R. § 404.953(b) requires that if the ALJ enters a fully favorable
oral decision into the record then the ALJ must also enter into the record an
exhibit that sets forth the key data, findings of fact, and a narrative rational
for the decision. The Magistrate Judge concluded that plaintiff failed to
cite any statute, regulation or case mandating that the ALJ’s written
decision must be consistent with prior oral statements. Because the
regulations are binding, the Magistrate Judge concluded that they support
the conclusion that plaintiff’s reliance on the oral statement during the
hearing is without merit. This court agrees with the Magistrate Judge and
overrules plaintiff’s objection.
The ALJ=s decision is supported by substantial evidence, and is
therefore affirmed. Accordingly,
IT IS HEREBY ORDERED that the Magistrate Judge's report and
recommendation is ACCEPTED.
-4-

IT IS FURTHER ORDERED that the Commissioner=s motion for
summary judgment is GRANTED.
IT IS FURTHER ORDERED that plaintiff=s motion for summary
judgment is DENIED.
Dated: February 27, 2018
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
February 27, 2018, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

-5-