United States District Court, E.D. Michigan, Southern Division
Patricia T. Morris Magistrate Judge.
ORDER ACCEPTING AND ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
F. Cox United States District Judge.
Lisa Oslin (“Plaintiff”) brought this action
seeking judicial review of Defendant Commissioner of Social
Security's (“Defendant”) determination that
she is not entitled to Social Security Income Benefits and
Disability Insurance Benefits. (Doc. # 1).
proceedings in this case were subsequently referred to
Magistrate Judge Patricia T. Morris pursuant to 28 U.S.C.
§ 636(b)(1)(B). (Doc. # 3). Sometime thereafter,
Plaintiff and Defendant filed cross-motions for summary
judgment. (Doc. # 14; Doc. # 17).
January 24, 2017, Magistrate Judge Morris issued a Report and
Recommendation (“R&R”), wherein she
recommended that the Court DENY Defendant's Motion for
Summary Judgment, GRANT Plaintiff's Motion for Summary
Judgment, and REMAND this case to the Commissioner under
sentence four of 42 U.S.C. § 405(g). (R&R at 30).
Defendant filed timely objections to the January 24, 2017
R&R on February 7, 2017. (Doc. # 21, Def.'s Objs.).
Plaintiff timely responded to Defendant's objections on
February 21, 2017. (Doc. # 23, Pl.'s Resp.).
Court finds Defendant's objections to be improper and
without merit. The Court shall therefore ACCEPT AND ADOPT the
R&R, GRANT Plaintiff's Motion for Summary Judgment
(Doc. #14), and DENY Defendant's Motion for Summary
Judgment (Doc. # 17).
to Federal Rule of Civil Procedure 72(b), a party objecting
to the recommended disposition of a matter by a Magistrate
Judge must file objections to the R&R within fourteen
(14) days after being served with a copy of the R&R.
Fed.R.Civ.P. 72(b)(2). Objections must “(A) specify the
part of the order, proposed findings, recommendations, or
report to which a person objects; and (B) state the basis for
the objection.” E.D. Mich. LR 72.1(d).
are not “a second opportunity to present the argument
already considered by the Magistrate Judge.”
Betancourt v. Ace Ins. Co. of Puerto Rico, 313
F.Supp.2d 32, 34 (D.P.R. 2004). Moreover, the district court
should not consider arguments that have not first been
presented to the magistrate judge. See Stonecrest
Partners, LLC v. Bank of Hampton Roads, 770 F.Supp.2d
778, 785 (E.D. N.C. 2011).
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).
R&R, Magistrate Judge Morris determined that the
Administrative Law Judge's (“ALJ”) Step Three
analysis-whether Plaintiff met or equaled Social Security
Listing 1.04-was defective because the ALJ failed to consider
the medical examination records of Plaintiff's
neurosurgeon, Dr. Palavali. (R&R at 21-25). The
Magistrate Judge further found “that because the ALJ
failed to consider the entire record, substantial evidence
does not support her RFC findings.” (R&R at 29-30).
Defendant lodges three objections to the Magistrate
# 1. In her first objection, Defendant improperly
reasserts arguments already advanced before Magistrate Judge
Morris: (1) the State agency physician reviewed the evidence
of record and explicitly considered Listing 1.04, finding
that Plaintiff was not disabled because she did not meet or
equal that Listing; (2) the record is “filled with
evidence that Plaintiff did not meet or equal Listing
1.04;” (3) the statement in the Palavali note that
Plaintiff had “nerve root compromise” appears to
be a scrivener's error; and (4) the fact that the ALJ did
not address the Palavali notes does not indicate that the ALJ
did not consider them. (Def.'s Objs. at 3-4).
Judge Morris's R&R properly rejects these arguments.