The opinion of the court was delivered by: Honorable Paul L. Maloney
Adopting the R&R without Objection; Affirming the Commissioner's Denial of Social Security Disability Benefits; Denying the Plaintiff's Request for Remand under Sentence Six of 42 U.S.C. § 405(g); Terminating and Closing the Case
Pursuant to 28 U.S.C. § 636 and W.D. MICH. LCIVR 72.2(b), this matter was automatically referred to United States Magistrate Judge Joseph G. Scoville, who issued a Report and Recommendation ("R&R") on Wednesday, March 3, 2010. Because plaintiff's counsel registered to participate in the court's Electronic Filing System ("ECF"), she was deemed served with the R&R that same day, upon receipt of the Notice of Electronic Filing ("NEF") advising that the R&R had been filed and was available to view, print and/or download. See Reed v. Deutsche Bank Nat'l Trust Co., 2009 WL 3270481, *1 n.1 (W.D. Mich. Oct. 5, 2009) (Maloney, C.J.) (citing Love v. SSA, 605 F. Supp.2d 893, 895 (W.D. Mich. 2009) (citing W.D. MICH. LCIVR 5.7(d)(i)(II)); Malik v. AT&T Mobility, LLC, 2009 WL 198710, *6 (W.D. Mich. Jan. 23, 2009) (Maloney, C.J.) (applying rule to find counsel was served with summary-judgment motion on same date that the adversary e-filed it).
"Both the Federal Rules of Civil Procedure and the Federal Magistrates Act were amended effective December 1, 2009 to simplify the calculation of time periods." Esch v. SSA, 2010 WL432265, *1 n.1 (W.D. Mich. Jan. 25, 2010) (citing PUB. L. NO. 111-16 § 6(1), 123 Stat. 1608). After being served with the R&R, the plaintiff had fourteen days to object, see Holwerda v. Warner Law Firm, 2010 WL 707361, *1 (W.D. Mich. Feb. 22, 2010) (Maloney, C.J.) (citing 28 U.S.C. § 636(b)(1), FED. R. CIV. P. 72(a), W.D. MICH. LCIVR 72.3(b)), including weekends and holidays, FED. R. CIV. P. 6(a)(1)(B). In computing any period of time specified by the Federal Rules of Civil Procedure, a statute, a court order, or our local rules, the court excludes the day of the act or event from which any time period begins to run, see FED. R. CIV. P. 6(a)(1)(A) and Southall v. Grand Rapids, 2008 WL 4739163, *1 (W.D. Mich. Oct. 29, 2008) (citing FED. R. CIV. P. 6(a)).
Accordingly, the objection period began on Thursday, March 4, 2010 and ended at midnight on Wednesday, March 17, 2010, see Valdes v. SSA, 2010 WL 911181, *1 (W.D. Mich. Mar. 12, 2010) (citing FED. R. CIV. P. 6(a)(4)(A)). That deadline has passed, and the court need not wait further for an objection from the plaintiff.
As the United States Supreme Court held in Peretz v. US, 501 U.S. 923 (1991), The statutory provision we upheld in Raddatz [447 U.S. 667 (1980)] provided for de novo review only when a party objected to the magistrate's findings or recommendations. See 28 U.S.C. § 636(b)(1). To the extent de novo review is required to satisfy Article III concerns, it need not be exercised unless requested by the parties.
Id. at 939 (citation and internal quotation marks omitted). See, e.g., Johnson v. SSA, 2007 WL 2292440, *1 (N.D. Ohio 2007) ("The Federal Magistrates Act requires a district court to conduct a de novo review only of those portions of the Report to which an objection has been made.").
Furthermore, the failure to file timely specific objections obviates not only de novo district-judge review of the R&R, but all district-judge review. Nottingham v. SSA, 2009 WL 230131, *2 (W.D. Mich. Jan. 29, 2009) (Maloney, C.J.). Again in the words of the Supreme Court,
In 1976, Congress amended § 101 of the Federal Magistrates Act, 28 U.S.C. § 636, to provide that a United States district judge may refer dispositive pretrial motions, and petitions for writs of habeas corpus, to a magistrate, who shall conduct appropriate proceedings and recommend dispositions. The amendments also provide that any party that disagrees with the magistrate's recommendations "may serve and file written objections" to the magistrate's report, and thus obtain de novo review by the district judge.
Petitioner first argues that a failure to object waives only de novo review, and that the district judge must still review the magistrate's report [regarding the case-dispositive matters listed in § 636(b)(1)(A)] under some lesser standard. However, § 636(b)(1)(C) simply does not provide for such review. This omission does not seem to be inadvertent, because Congress provided for a "clearly erroneous or contrary to law" standard of review of a magistrate's disposition of certain pretrial matters in § 636(b)(1)(A) [essentially, non-dispositive motions]. Nor does petitioner point to anything in the legislative history of the 1976 amendments mandating review under some lesser standard. We are therefore not persuaded that the statute requires some lesser review by the district court when no objections are filed.
Thomas v. Arn, 470 U.S. 140, 141-42, 149-50 (1985) (emphasis added, legislation citation omitted).
In any event, the court finds the R&R's outcome and rationale to be sound.*fn1 For the reasons explained by the R&R, Saunders' severe impairments -- degenerative disc disease of the lumbosacral and cervical spine, and bipolar disorder -- did not render her disabled between her alleged disability onset date (November 15, 2002) and the ALJ's decision (March 27, 2007). See R&R at 4.
First, the Magistrate did not err in concluding that Saunders' request for a 42 U.S.C. § 405(g) sentence-six remand must be denied, because much of the evidence she seeks to introduce is not "new", and even the evidence which is new is not shown to be "material." R&R at 5-8; see also Edwards v. SSA, 654 F. Supp.2d 692, 702 (W.D. Mich. 2009) (Maloney, C.J.) ("[N]ew evidence is not 'material' unless there is a 'reasonable probability' that the ALJ would have reached a different disposition of the claim if he had been presented with the new evidence.") (citing Hollon v. SSA, 447 F.3d 477, 484 (6th Cir. 2006) (citing Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001))).
Second, the Magistrate correctly concluded that substantial evidence supported the ALJ's determination that Saunders had the RFC to perform unskilled light work, notwithstanding the opinion proffered by her supposed "treating clinic" that she could not engage even in a full range of sedentary work. As the Magistrate noted, R&R at 8-9, Saunders presents no authority for the notion that a treating clinic's opinion is entitled to presumptive deference, rather than a particular medical professional whose contacts and familiarity with the claimant renders him a treating physician. See generally Blakley v. SSA, 581 F.3d 399, 407 (6th Cir. 2009) (McKeague, joined by Clay) (quoting 20 C.F.R. § 1502 for standard determining whether a particular medical professional qualifies as a treating source); Pethers v. SSA, 580 F,. Supp.2d 572, 579 n.16 (W.D. Mich. 2008) (discussing 20 C.F.R. § 1502's definition of treating source and setting forth "rules of thumb" for determining whether a physician qualifies as a treating source) (citing, inter alia, Kornecky v. SSA, 167 F. App'x 496, 506 (6th Cir. 2006) (per curiam) (Siler, Griffin, D.J. Katz)). Contrast Bieschke v. SSA, 2009 WL 735077, *1 n.1 (W.D. Mich. Mar. 12, 2009) (Maloney, C.J.) ("[T]he court finds that the number and frequency of Bieschke's visits to him, the nature and extent of their medical relationship, and his consequent familiarity with Bieschke's medical history and experiences, ...