Fasburg v. Commissioner of Social Security

Filing 18

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 15 ; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DOUGLAS E. FASBURG,
Plaintiff,

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COMMISSIONER OF SOCIAL SECURITY,
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Defendant.
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No. 1:13-cv-708
HONORABLE PAUL L. MALONEY

OPINION AND ORDER APPROVING AND ADOPTING MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION

The matter before the Court is Magistrate Judge Scoville’s Report and Recommendation in
this matter (ECF No. 15). Plaintiff has filed Objections (ECF No. 17). When a party has objected
to portions of the Magistrate Judge’s recommendation, “[t]he 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). Here, de novo review
requires at least a review of the evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d
1208, 1215 (6th Cir. 1981). But only specific objections are entitled to a de novo review. See Mira
v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986).
The Court has reviewed de novo the claims and evidence presented to the Magistrate Judge;
the Report and Recommendation itself; and Plaintiff’s Objections. After its review, the Court finds
Magistrate Judge Scoville’s Report and Recommendation to be factually sound and legally correct.
At bottom, Plaintiff objects to the Magistrate’s conclusion that Plaintiff does not meet a listed
impairment. That is, Plaintiff argues that he satisfies the requirements for mental retardation in

section 12.05(C) of the Listing of Impairments. Plaintiff argues the Magistrate committed error in
finding that Plaintiff must satisfy the diagnostic description of mental retardation. Plaintiff points
out that he has an IQ score of 70 and has limits in function. Plaintiff’s objections are overruled.
The Sixth Circuit has stated that “[I]t is not enough for a claimant to point to one score below
71; the claimant must also satisfy the ‘diagnostic description’ of mental retardation in Listing 12.05.
It is undisputed that no psychologist has diagnosed [the plaintiff] with mental retardation. The
examiner and clinical psychologist who tested him diagnosed him instead as borderline intellectual
functioning. Moreover [the plaintiff] performed a number of common activities inconsistent with
mental retardation . . . .” Cooper v. Comm. of Soc. Sec., 217 F. App’x 450, 452 (6th Cir. 2007). Such
is the case in the instant matter. Plaintiff has been diagnosed with experiencing borderline
intellectual functioning, but not mental retardation. Accordingly the ALJ’s conclusion was not in
error, nor was the Magistrate Judge’s.
Plaintiff also argues that the ALJ should have recused himself from the case. Plaintiff merely
reasserts claims that the Magistrate Judge thoroughly considered and makes no objections to the
Magistrate’s analysis. After its review the Court finds that the Magistrate Judge correctly found there
was no competent evidence that the ALJ was biased against Plaintiff or his attorney.
ACCORDINGLY, IT IS ORDERED THAT:
The Plaintiff’s objections (ECF No. 17) are OVERRULED;
The R&R (ECF No. 15) is APPROVED AND ADOPTED as the opinion of the Court;

Date:

September 29, 2014

/s/ Paul L. Maloney
Paul L. Maloney
Chief United States District Judge
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