Krcic v. Social Security, Commissioner of

Filing 16

ORDER Adopting 13 Report and Recommendation regarding 8 Motion for Summary Judgment, and 11 Motion for Summary Judgment, Signed by District Judge Judith E. Levy. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Jennifer M. K.,
Plaintiff,
v.
Commissioner of Social Security,
Defendant.

Case No. 23-cv-12173
Judith E. Levy
United States District Judge
Mag. Judge Curtis Ivy, Jr.

________________________________/
ORDER ADOPTING THE MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION [13], DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT [8], AND GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [11]
On July 15, 2024, Magistrate Judge Curtis Ivy, Jr. issued a Report
and Recommendation (“R&R”) (ECF No. 13) recommending that the
Court deny Plaintiff Jennifer M. K.’s motion for summary judgment (ECF
No. 8), grant Defendant Commissioner of Social Security’s motion for
summary judgment (ECF No. 11) and affirm the Commissioner’s decision
to deny Plaintiff benefits under the Social Security Act. On July 29, 2024,
Plaintiff filed a timely objection to the R&R under Federal Rule of Civil

Procedure 72(b)(2) and Eastern District of Michigan Local Rule 72.1(d).
(ECF No. 14.) Defendant responded to the objection. (ECF No. 15.)
For the reasons set forth below, Plaintiff’s objection is overruled and
the R&R is adopted. Accordingly, Plaintiff’s motion for summary
judgment is denied, Defendant’s motion for summary judgment is
granted, and the Commissioner’s decision is affirmed.
I.

Background

The Court adopts by reference the background set forth in the R&R,
having reviewed it and finding it to be accurate and thorough.1 (See ECF
No. 13, PageID.491–495.)
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. See 28 U.S.C.

For purposes of clarity, the Court notes that Plaintiff’s residual functional
capacity includes an additional limitation not mentioned in the R&R (ECF No. 13,
PageID.494): “She can perform pushing and pulling motions with the upper and lower
extremities within the aforementioned weight restrictions for two-thirds of an 8-hour
workday.” (ECF No. 4-1, PageID.25.) The Court also notes that the ALJ concluded
that Plaintiff “ha[d] not been under a disability, as defined in the Social Security Act,
from March 13, 2020, through the date of this decision.” (Id. at PageID.31.) The R&R
provides a different time frame for the ALJ’s finding. (ECF No. 13, PageID.494.)
1

2

§ 636(b)(1)(B)–(C); Fed. R. Civ. P. 72(b)(1)–(3). “For an objection to be
proper, Eastern District of Michigan Local Rule 72.1(d)(1) requires
parties

to

‘specify

the

part

of

the

order,

proposed

findings,

recommendations, or report to which [the party] objects’ and to ‘state the
basis for the objection.’” Pearce v. Chrysler Grp. LLC Pension Plan, 893
F.3d 339, 346 (6th Cir. 2018) (alteration in original). Objections that
restate arguments already presented to the magistrate judge are
improper, see 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, see 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 & Human Servs., 932 F.2d 505, 509 (6th Cir.
1991)); see also Thomas v. Arn, 474 U.S. 140, 147 (1985) (stating that
objections must go to “factual and legal” issues “at the heart of the
parties’ dispute”). In sum, objections must be clear and specific enough
that the Court can squarely address them on the merits. See Pearce, 893
F.3d at 346.

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In Biestek v. Berryhill, 139 S. Ct. 1148 (2019), the Supreme Court
articulated the standard the district court must apply when conducting
its de novo review. The Court indicated that the phrase “substantial
evidence” is a “term of art.” Id. at 1154 (internal citation omitted). “Under
the substantial-evidence standard, a court looks to an existing
administrative record and asks whether it contains ‘sufficien[t] evidence’
to support the agency’s factual determinations.” Id. (alteration in
original) (internal citation omitted). “And whatever the meaning of
‘substantial’ in other contexts, the threshold for such evidentiary
sufficiency is not high. Substantial evidence . . . is ‘more than a mere
scintilla.’” Id. (internal citations omitted). Specifically, “[i]t means—and
means only—‘such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.’” Id. (internal citations omitted). “[I]f
substantial evidence supports the ALJ’s [administrative law judge’s]
decision, this Court defers to that finding ‘even if there is substantial
evidence in the record that would have supported an opposite
conclusion.’” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir.
2009) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)).

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III. Analysis
Plaintiff objects to the R&R’s determination that “[c]ommon sense
dictates that when the VE [vocational expert] states he has the
information and that the ALJ need not repeat his question, there was no
error made in the second hypothetical question.” (ECF No. 14,
PageID.508–509 (quoting ECF No. 13, PageID.501).) Plaintiff argues
that the second hypothetical was ambiguous because the ALJ “repeated
only part of the sit-stand option.” (Id. at PageID.508; see id. at
PageID.509.) Plaintiff argues that it is unclear whether the VE
“understood th[at the ALJ’s] modified hypothetical still included a
requirement that the individual be allowed to sit for 30 minutes, before
standing for two minutes, before sitting again.” (Id. at PageID.509.)
Plaintiff believes that certain portions of the VE’s answers “indicate[ ] he
was responding to the hypothetical as presented by the ALJ, even if [the
VE] had previously indicated he had the rest of the hypothetical question
before him.” (Id. at PageID.510.)
Plaintiff’s objection is denied as improper because it repeats
arguments that were before Magistrate Judge Ivy (see ECF No. 8,
PageID.455–456; ECF No. 12, PageID.485–488) and because the

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objection fails to identify a factual or legal error in the R&R. The R&R
thoughtfully addresses Plaintiff’s arguments and properly rejects them.
“The Court is not obligated to reassess the identical arguments presented
before the Magistrate Judge with no identification of error in the
Magistrate Judge’s recommendation.” Pearson v. Comm’r of Soc. Sec., No.
2:15-cv-14031, 2017 WL 1190947, at *3 (E.D. Mich. Mar. 31, 2017)
(internal citations omitted); see McClure v. Comm’r of Soc. Sec., No. 2012517, 2022 WL 730631, at *1 (E.D. Mich. Mar. 10, 2022) (stating that
objections “that merely reiterate[ ] arguments previously presented,
[without] identify[ing] alleged errors on the part of the magistrate judge”
are “invalid” (alterations in original) (internal citation omitted)); Melvin
v. Comm’r of Soc. Sec., No. 2:18-cv-13405, 2020 WL 967479, at *2 (E.D.
Mich. Feb. 28, 2020) (overruling the plaintiff’s objection as improper
because the plaintiff was “merely rehashing his argument from his
motion for summary judgment,” which “[t]he magistrate judge
sufficiently addressed and properly rejected”); Pangburn v. Comm’r of
Soc. Sec., No. 16-13393, 2018 WL 992219, at *6 (E.D. Mich. Feb. 21, 2018)
(overruling improper objections that “simply reiterate the arguments

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presented to the Magistrate Judge in the summary judgment briefing”
(citing Aldrich v. Bock, 327 F. Supp. 2d 743, 747 (E.D. Mich. 2004)).
Plaintiff now expresses general disagreement with the R&R’s
findings, which is also improper for an objection. This court has stated
that
[w]hen a party properly objects to portions of a magistrate
judge’s report and recommendation, the Court reviews such
portions de novo. See Fed. R. Civ. P. 72(b). However, only
specific objections that pinpoint a source of error in the report
are entitled to de novo review. Mira v. Marshall, 806 F.2d 636,
637 (6th Cir. 1986). General objections—or those that do
nothing more than disagree with a magistrate judge’s
determination, without explaining the source of the error—
have “the same effect[ ] as would a failure to object.” Howard
v. Sec’y of Health and Human Servs., 932 F.2d 505, 509 (6th
Cir. 1991). That is, such objections are not valid, and the
Court may treat them as if they were waived. See BellmoreByrne v. Comm’r of Soc. Sec., No. 15-11950, 2016 WL 5219541,
at *1 (E.D. Mich. Sept. 22, 2016) (citing id.).
McClure, 2022 WL 730631, at *1. Because Plaintiff’s objection restates
arguments that were previously before Magistrate Judge Ivy, fails to
identify an error in the R&R, and disagrees with the R&R in a general
fashion, the objection is invalid and is overruled.
Even upon a review of the merits of the objection, Plaintiff’s
objection is still overruled. Plaintiff argues that the VE’s “subsequent
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responses”—after he informed the ALJ that he had the hypothetical in
front of him and did not need it repeated—“indicate [the VE] was . . .
responding to [a] modified hypothetical.”2 (ECF No. 14, PageID.509.) This
argument is unpersuasive. The portions of the hearing transcript that
Plaintiff emphasizes in her objection (and in her reply) (id.; ECF No. 12,
PageID.486; see supra note 2) do not establish that the VE responded to
a “modified hypothetical” that excluded “a requirement that the
individual be allowed to sit for 30 minutes, before standing for two

Plaintiff presents the relevant part of the exchange between the ALJ and the
VE—including the VE’s “subsequent responses” discussed above—as follows:
2

ALJ: Okay. So, for sake of the hypothetical let’s do the standing at six
but everything else remains the same. Total standing six. Do you want
me to repeat it?
VE: No, I have it here. I’m -ALJ: Okay. Yeah, can stand and or walk with normal breaks for six
hours in an eight-hour workday. The individual requires the opportunity
to stand 15 minutes at one time before needing to sit for 2 minutes before
resuming standing so long as they’re not off task.
VE: Thank you, sir. Then there would be some positions -ALJ: Sure.
VE: -- I could identify with that . . .
(ECF No. 14, PageID.509 (emphasis in original) (quoting ECF No. 4-1, PageID.68);
see ECF No. 12, PageID.486.)

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minutes, before sitting again.” (ECF No. 14, PageID.509.) Moreover, the
Court notes that the VE asked Plaintiff and the ALJ for clarification at
various points during the hearing. (See, e.g., ECF No. 4-1, PageID.62–
67.) The VE could have clarified any ambiguity he may have perceived
regarding the second hypothetical but apparently had no need to do so.
Plaintiff faults the ALJ for repeating the “standing at-one-time
restriction” when he gave the second hypothetical without repeating the
“sitting at-one-time allowance” from the first hypothetical. (ECF No. 14,
PageID.511.) According to Plaintiff, the ALJ’s failure to repeat the
“sitting at-one-time allowance” means that he “repeated only part of the
sit-stand option” that was eventually included in the residual functional
capacity determined by the ALJ for Plaintiff. (Id. at PageID.508; see ECF
No. 4-1, PageID.25.) But Plaintiff does not show that the ALJ was
required to repeat both components of the sit-stand option for the VE to
comprehend the hypothetical, particularly given that the VE confirmed
that he had the information he needed and did not ask the ALJ for
clarification.
Plaintiff states that “when presenting the second hypothetical, the
ALJ chose to include more than just the one change regarding total

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standing; he repeated the standing at-one-time restriction again as well.”
(ECF No. 14, PageID.511 (emphasis in original).) Plaintiff argues that
“[r]ather than implying the inclusion of the sitting at-one-time allowance,
the ALJ’s phrasing implied the opposite: that the second hypothetical
included only the standing restriction.” (Id.) Yet how Plaintiff reaches
this conclusion is unclear. She does not explain her reasoning or support
this assertion with citations to any applicable authority or the record.
Regardless, Plaintiff provides no basis for the Court to conclude
that the ALJ’s failure to specifically mention the “sitting-at-one-time
allowance” implies “that the second hypothetical included only the
standing restriction.” (Id.) The ALJ indicated that “everything else” in
the second hypothetical except for standing for six hours “remain[ed] the
same” as in the first hypothetical. (ECF No. 4-1, PageID.68; see supra
note 2.) The ALJ then recited the updated standing restriction and the
unchanged “standing at-one-time restriction.” (Id.) But at no point during
the hearing did the ALJ state that the “sitting at-one-time allowance” did
not apply to the second hypothetical. Instead, the ALJ instructed that the
remaining limitations from the first hypothetical carried over into the

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second hypothetical. Those limitations were not repeated—but there is
no indication that they were excluded.3
In sum, Plaintiff’s objection lacks merit. Plaintiff does not show that
the R&R is mistaken. Accordingly, Plaintiff’s objection is overruled.
IV.

Conclusion

For the reasons set forth above, the Court ADOPTS the Magistrate
Judge’s R&R. (ECF No. 13.) Plaintiff’s motion for summary judgment is
DENIED (ECF No. 8), Defendant’s motion for summary judgment is
GRANTED (ECF No. 11), and the Commissioner’s decision is
AFFIRMED.
IT IS SO ORDERED.
Dated: September 24, 2024
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

In fact, the ALJ stated toward the end of the hearing that the second
hypothetical included restrictions from the first hypothetical that were not repeated,
such as the first hypothetical’s limitations on (1) lifting and/or carrying and
(2) sitting. (ECF No. 4-1, PageID.70 (“[H]ypothetical number two” is “[t]he one with
the 10/20 occasionally, six, six.”).) Therefore, the second hypothetical was not limited
to only the restrictions on standing that the ALJ provided to the VE for that
hypothetical. Following the ALJ’s explanation, the VE did not ask questions or revise
his answer to the second hypothetical.
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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 September 24, 2024.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager

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