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Biestek v. Berryhill

United States District Court, E.D. Michigan, Southern Division

March 30, 2017

MICHAEL J. BIESTEK, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

         OPINION AND ORDER (1) ADOPTING MAGISTRATE JUDGE'S FEBRUARY 24, 2017 REPORT AND RECOMMENDATION [ECF NO. 28]; (2) DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [ECF NO. 22]; (3) GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [ECF NO. 23]; (4) GRANTING DEFENDANT'S EX PARTE MOTION FOR LEAVE TO FILE EXCESS PAGES [ECF NO. 30] AND (5) GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE REPLY TO RESPONSE TO OBJECTIONS [ECF NO. 32]

          LINDA V. PARKER U.S. DISTRICT JUDGE.

         On February 5, 2016, Plaintiff filed this lawsuit challenging Defendant's final decision denying his application for benefits under the Social Security Act. (ECF No. 1.) On February 12, 2016, the matter was referred to Magistrate Judge Mona K. Majzoub for all pretrial proceedings, including a hearing and determination of all non-dispositive matters pursuant to 28 U.S.C. § 636(b)(1)(A) and/or a report and recommendation (“R&R”) on all dispositive matters pursuant to 28 U.S.C. § 636(b)(1)(B).[1] (ECF No. 13.) The parties subsequently filed cross-motions for summary judgment. (ECF Nos. 22, 23.)

         I. Background

         On February 24, 2017, Magistrate Judge Majzoub issued her R&R in which she recommends that this Court deny Plaintiff's motion, grant Defendant's motion, and affirm Defendant's decision finding Plaintiff not disabled under the Social Security Act. (ECF No. 28.) In her thorough analysis, Magistrate Judge Majzoub first rejects Plaintiff's argument that the administrative law judge (“ALJ”) erred in determining that Plaintiff's impairments do not meet or medically equal Listing 1.04. (Id. at Pg ID 2195.) Magistrate Judge Majzoub next declines Plaintiff's argument that the ALJ improperly evaluated the medical opinion evidence. (Id. at Pg ID 2199.) Magistrate Judge Majzoub dismisses Plaintiff's third argument that the ALJ failed to adequately account for Plaintiff's limitations in concentration, persistence, or pace. (Id. at Pg ID 2208.) The magistrate judge also deferred to the ALJ's determinations that Plaintiff's statements were not entirely credible and that the statements made by Plaintiff's mother should be given little weight. (Id. at Pg ID 2215. Lastly, Magistrate Judge Majzoub rejected Plaintiff's contention that the ALJ's step-five determination is not supported by substantial evidence. (Id.)

         Magistrate Judge Majzoub concludes by advising the parties that they may object to and seek review of the R&R within fourteen days of service upon them. (Id. at 2218.) She further specifically advises the parties that “[f]ailure to file specific objections constitutes a waiver of any further right to appeal.” (Id.) Plaintiff filed objections on March 10, 2017. (ECF No. 29.) Defendant responded to Plaintiff's objections on March 21, 2017.[2] (ECF No. 31.)

         II. Standard of Review

         When objections are filed to a magistrate judge's R&R on a dispositive matter, the Court “make[s] a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). The Court, however, “is not required to articulate all of the reasons it rejects a party's objections.” Thomas v. Halter, 131 F.Supp.2d 942, 944 (E.D. Mich. 2001) (citations omitted). A party's failure to file objections to certain conclusions of the report and recommendation waives any further right to appeal on those issues. See Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Likewise, the failure to object to certain conclusions in the magistrate judge's report releases the Court from its duty to independently review those issues. See Thomas v. Arn, 474 U.S. 140, 149 (1985).

         III. Applicable Law & Analysis

         A. Objection 1

         In Plaintiff's first objection, he reiterates the argument asserted in his summary judgment motion that the ALJ's step-five determination is not supported by substantial evidence. (ECF No. 22 at Pg ID 2129.) In particular, Plaintiff argues that the testimony of the vocational expert (“VE”) was not supported by substantial evidence because the VE based her testimony on her experience. (Id. at Pg ID 2130.) As Magistrate Judge Majzoub notes, the VE based her testimony “on her eleven-year experience as a vocational rehabilitation consultant, which included talking with employers, performing on-the-job analysis, and conducting her own individual labor market surveys.” (ECF No. 28 at Pg ID 2215.) At the end of VE's testimony, counsel for Plaintiff requested evidence of VE's experience. (Id.) The VE testified that it would require revealing patient's private confidential files; therefore, the ALJ determined that she would not require the VE to produce those files. (Id.)

         Plaintiff contends that the VE was required to provide support for her testimony, relying on a standard articulated by the Seventh Circuit in Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002). In Donahue, the Seventh Circuit stated that:

If the basis of the vocational expert's conclusions is questioned at the hearing, however, then the ALJ should make an inquiry (similar though not necessarily identical to that of Rule 702) to find out whether the purported expert's conclusions are reliable. Social Security Ruling 00-4p, promulgated in December 2000 (and thus not directly applicable to this case), is to much the same effect. This ruling requires the ALJ to “[e]xplain [in the] determination or decision how any conflict [with the Dictionary] that has been identified was resolved.” (Emphasis added.) The ruling requires an explanation only if the discrepancy was “identified”-that is, if the claimant (or the ALJ on his behalf) noticed the conflict and asked for substantiation.

Donahue, 279 F.3d at 446-47. The Sixth Circuit has not adopted this standard. See Masters v. Astrue, No. 07-123, 2008 WL 4082965 (E.D. Ky. Aug. 29, 2008) (rejecting Seventh Circuit standard requiring remand due to failure to inquire into reliability because “reliability is a factor only in the Sixth Circuit”). Plaintiff reasserts his summary judgment argument that this Court should rely on Donahue ...


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