Weirauch v. Commissioner of Social Security

Filing 18

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 16 ; the Commissioner's decision is affirmed ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMIE WEIRAUCH,
Plaintiff,
CASE NO. 1:18-CV-303
v.
HON. ROBERT J. JONKER
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
__________________________________/
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
The Court has reviewed Magistrate Judge Green’s Report and Recommendation in this
matter (ECF No. 16) and Plaintiff’s Objection to it (ECF No. 17). Under the Federal Rules of Civil
Procedure, where, as here, a party has objected to portions of a Report and Recommendation, “[t]he
district judge . . . has a duty to reject the magistrate judge’s recommendation unless, on de novo
reconsideration, he or she finds it justified.” 12 WRIGHT, MILLER & MARCUS, FEDERAL PRACTICE
AND PROCEDURE §

3070.2, at 451 (3d ed. 2014). Specifically, the Rules provide that:

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). De novo review in these circumstances requires at least a review of the
evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981).

PLAINTIFF’S OBJECTION
The Magistrate Judge recommends affirming the Commissioner’s decision on the basis that
the ALJ’s decision is supported by substantial evidence.

Plaintiff’s Objection to the

recommendation is perfunctory. The only references to the Magistrate’s analysis is a statement that
“Plaintiff objects to the Magistrate’s reasoning, report, and recommendation in relation thereto as
more fully set forth below.” (ECF No. 17, PageID.1019). The remainder of the objection merely
repeats, nearly verbatim, the argument in Plaintiff’s initial brief. As the Magistrate Judge cautioned,
“[g]eneral objections do not suffice.” (ECF No. 16, PageID.1015). Nevertheless the Court has
reviewed de novo the claims and evidence presented to the Magistrate Judge; the Report and
Recommendation itself; and Plaintiff’s Objection to it. After its review, the Court finds that
Magistrate Judge Green’s Report and Recommendation is factually sound and legally correct and
accordingly adopts its conclusion.
Plaintiff argues that the ALJ’s RFC is not supported by substantial evidence because it fails
to include handing and fingering restrictions that are necessary given her severe and non-severe
impairments. As the Magistrate Judge properly recognized, the mere diagnosis of a condition says
nothing about its severity. Moreover, “[a] claimant’s severe impairment may or may not affect his
or her functional capacity to do work. One does not necessarily establish the other.” Griffeth v.
Comm’r of Soc. Sec., 217 F. App’x 425, 429 (6th Cir. 2007) (quoting Yang v. Comm’r of Soc. Sec.,
No. 00-10046-BC, 2004 WL 1765480, at *5 (E.D. Mich. July 14, 2004)). No physician, treating or
otherwise, opined that Plaintiff required handling and fingering limitations, and the Court agrees
with the Magistrate Judge that the absence of such an opinion is substantial evidence supporting
the ALJ’s decision not to include the limitation in the RFC.
2

The only evidence that Plaintiff points to in support of a handling and fingering limitation
is her testimony during the hearing. As Magistrate Judge Green correctly recognized, these
allegations were found to be less than fully credible by the ALJ because they were inconsistent with
the objective medical evidence.

That determination is supported by substantial evidence.

Accordingly, Plaintiff fails to demonstrate the ALJ acted outside the “zone of choice” that is
accorded ALJs at this stage of review. See Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001).1
CONCLUSION
ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the
Magistrate Judge (ECF No. 16) is approved and adopted as the opinion of the Court.
IT IS FURTHER ORDERED that the Commissioner’s decision is AFFIRMED.
A separate Judgment shall issue.

Dated:

December 26, 2018

/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE

1

The Court notes that even if the ALJ should have included handling and fingering
limitations, the vocational expert testified that there would still be a significant number of jobs
available with an occasional reaching, handling and fingering restriction added to the ALJ’s RFC
hypothetical. (ECF No. 7-2, PageID.114-115).
3