Jidas v. Social Security, Commissioner of
Filing
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OPINION and ORDER Adopting 16 Report and Recommendation. Signed by District Judge Judith E. Levy. (SBur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Kimberly Sue Jidas,
Plaintiff,
v.
Case No. 17-cv-14198
Judith E. Levy
United States District Judge
Commissioner of Social Security,
Defendant.
Mag. Judge Stephanie Dawkins
Davis
________________________________/
OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION
This is a Social Security benefits appeal. On February 26, 2019,
Magistrate Judge Stephanie Dawkins Davis issued a Report and
Recommendation (“R&R”) (Dkt. 16) recommending that the Court deny
plaintiff Kimberly Sue Jidas’ motion for summary judgment (Dkt. 13) and
grant defendant’s, Acting Commissioner of the Social Security
Administration Nancy Berryhill, motion for summary judgment. (Dkt.
14.) Plaintiff timely filed an objection on March 12, 2019 (Dkt. 17), and
defendant filed a response on March 18, 2019. (Dkt. 18.)
I.
Background
In April 2015, plaintiff applied for Disability Insurance Benefits
based upon a history of papillary thyroid cancer, iron deficiency anemia,
chronic leukopenia, seasonal allergies, degenerative disc disease, chronic
fatigue syndrome, and fibromyalgia. (Tr. 12–13.) The agency initially
denied her application for benefits (Tr. 65), as did the administrative law
judge (“ALJ”) after holding a hearing. (Id. at 20.) She filed for judicial
review on December 28, 2017. (Dkt. 1.)
The Court has carefully reviewed the R&R and is satisfied that it is
a thorough account of the relevant portions of the record. The Court
incorporates the factual background from the R&R as if set forth herein.
(Dkt. 16 at 1–4.)
II.
Legal Standard
A party may object to a magistrate judge’s report and
recommendation on dispositive motions, and a district judge must resolve
proper objections under a de novo standard of review. 28 U.S.C. §
636(b)(1)(B)–(C); Fed. R. Civ. P. 72(b)(1)–(3). A proper objection identifies
the portion of the report and recommendation that the party takes issue
with and then specifies the factual or legal basis of the error. E.D. Mich.
LR 72.1(d)(1); see Andres v. Comm’r of Soc. Sec., 733 F. App’x 241, 244
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(6th Cir. 2018). Objections that restate arguments already presented to
the magistrate judge are improper, Coleman-Bey v. Bouchard, 287 F.
App’x 420, 422 (6th Cir. 2008) (citing Brumley v. Wingard, 269 F.3d 629,
647 (6th Cir. 2001)), as are those that dispute the general correctness of
the report and recommendation, Miller v. Currie, 50 F.3d 373, 380 (6th
Cir. 1995). Moreover, objections must be clear so that the district court
can “discern those issues that are dispositive and contentious.” Id. (citing
Howard v. Sec’y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir.
1991)); Thomas v. Arn, 474 U.S. 140, 147 (1985) (explaining that
objections must go to “factual and legal” issues “at the heart of the
parties’ dispute”).
III. Analysis
Plaintiff filed one objection to the R&R. She argues that the
magistrate judge “misapplied the case law and rulings addressing 20
C.F.R. § 405.1529(c) [sic].” (Dkt. 17 at 1.) Specifically, she asserts that
she satisfied the first step and the objective evidence element of the
second step of the analysis outlined in § 405.1529(c), and so she was
entitled to rely on subjective evidence to satisfy the rest of second step,
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here her own testimony, which the magistrate judge evaluated
incorrectly.1 (Dkt. 17 at 1–2.) However, the objection is improper.
The majority of plaintiff’s objection is improper because it does not
identify a specific error made by the magistrate judge and repeats
arguments that she previously raised before the magistrate judge.
Plaintiff provides a broad statement that the magistrate judge applied
the wrong legal rule (Dkt. 17 at 1) and discusses the two-step analysis
and SSR 16-3p, but these are not specific objections. She goes on to apply
step two to her testimony and other evidence in the record, but she raised
this argument in her brief in support of her motion for summary
judgment and reply brief. (Compare Dkt. 13 at 17–18, Dkt. 15 at 1–2 with
[Section 405.1529(c)] and SSR 16-3p3 describe a two-part process for
evaluating an individual’s statements about symptoms, including pain.
First, the ALJ must determine whether a claimant has a medically
determinable physical or mental impairment that can reasonably be
expected to produce the symptoms alleged; second, the ALJ must
evaluate the intensity, persistence, and functional limitations of those
symptoms by considering objective medical evidence and other evidence,
including: (1) daily activities; (2) the location, duration, frequency, and
intensity of pain or other symptoms; (3) precipitating and aggravating
factors; (4) the type, dosage, effectiveness, and side effects of any
medication taken to alleviate pain or other symptoms; (5) treatment,
other than medication, received for relief of pain or other symptoms; (6)
any measures used to relieve pain or other symptoms; and (7) other
factors concerning functional limitations and restrictions due to pain or
other symptoms.
1
Hoffman v. Comm’r of Soc. Sec., No. 1:18-cv-171, 2019 U.S. Dist. LEXIS 27010,
at *13 (S.D. Ohio Feb. 20, 2019) (citations omitted).
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Dkt. 17 at 1–2; Dkt. 15 at 2–4 with Dkt. 17 at 2–4.) Therefore, these parts
of the objection are improper.
This leaves only plaintiff’s argument that the magistrate judge
inappropriately defferred to the ALJ in her review of step two of the §
404.1529(c) analysis because she determined that the ALJ’s analysis at
this step was a credibility determination, misinterpreting SSR 16-3p.
(Dkt. 17 at 4.) SSR 16-3p was enacted to remove the emphasis on
credibility, as in a character for truthfulness, see Dooley v. Comm’r of Soc.
Sec., 656 F. App’x 113, 119 n.1 (6th Cir. 2016), a replace it with a focus
on “whether the claimant’s statements about the intensity, persistence,
and limiting effects of symptoms are consistent with the objective medical
evidence and other evidence on the record,” Rhinebolt v. Comm’r of Soc.
Sec., No. 2:17-cv-369, 2018 U.S. Dist. LEXIS 9388, at *10 (S.D. Ohio Jan.
22, 2018) (citations omitted). But regardless of whether the magistrate
judge’s use of the word “credibility” is permissible, the magistrate judge
went on to apply the step two factors outlined in § 405.1529(c), which SSR
16-3p seeks to clarify. Plaintiff does not address how this statement about
credibility renders the magistrate judge’s review of the ALJ’s
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consideration of the regulatory factors deficient.2 It is the factor analysis,
not the stray mention of “credibility,” that is the dispositive issue. Thus,
plaintiff’s objection is improper because it does not go to legal issues at
the heart of this dispute. The objection is overruled.
IV.
Conclusion
Accordingly, the R&R (Dkt. 16) is ADOPTED; defendant’s motion
for summary judgment (Dkt. 14) is GRANTED; and plaintiff’s motion for
summary judgment (Dkt. 13) is DENIED.
IT IS SO ORDERED.
Dated: March 22, 2019
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on March 22, 2019.
s/Shawna Burns
SHAWNA BURNS
Case Manager
And as defendant points out, there is no indication that Sixth Circuit
precedent holding that these ALJ determinations, whether they be deemed credibility
determinations or otherwise, receive deference are overruled based on SSR 16-3p.
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