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McDaniel v. Berryhill

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

April 17, 2017

TERRY L. MCDANIEL, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Anthony P. Patti United States Magistrate Judge

         OPINION AND ORDER: (1) REJECTING DEFENDANT’S OBJECTION (ECF NO. 37); (2) ADOPTING THE REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE ANTHONY P. PATTI (ECF NO. 36); (3) DENYING AS MOOT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 27); (4) GRANTING PLAINTIFF’S AMENDED MOTION FOR SUMMARY JUDGMENT (ECF NO. 30); (5) DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 34); (6) REVERSING THE DECISION OF THE COMMISSIONER; AND (7) REMANDING FOR FURTHER PROCEEDINGS PURSUANT TO SENTENCE FOUR OF 42 U.S.C. § 405(G)

          Paul D. Borman United States District Judge

         On February 7, 2017, Magistrate Judge Anthony P. Patti issued a Report and Recommendation addressing the outstanding motions in this action. (ECF No. 36, Report and Recommendation.) In the Report and Recommendation, the Magistrate Judge recommended that this Court deny as moot Plaintiff’s August 29, 2016 Motion for Summary Judgment (ECF No. 27), grant Plaintiff’s September 2, 2016 Motion for Summary Judgment (ECF No. 30), Deny Defendant’s Motion for Summary Judgment (ECF No. 34), reverse the decision of the Commissioner of Social Security (“Commissioner”), and remand the matter to the Commissioner pursuant to Sentence Four of 42 U.S.C. § 405(g) for further proceedings.

         Now before the Court is Defendant’s Objection to the Report and Recommendation. (ECF No. 37, Def.’s Objs.) Plaintiff filed a timely Response. (ECF No. 39.) Having conducted a de novo review of the parts of the Magistrate Judge’s Report and Recommendation to which objections have been filed pursuant to 28 U.S.C. § 636(b)(1), the Court will reject Plaintiffs Objection and adopt the Magistrate Judge’s Report and Recommendation.

         I. BACKGROUND

         The findings of the Administrative Law Judge (“ALJ”) and the pertinent portions of the Administrative Record are accurately and adequately set forth in the Report and Recommendation. There are no material inconsistencies with these accounts and the Court incorporates those factual recitations here. (Report and Recommendation at 2-6; ECF No. 14, Transcript of Social Security Proceedings at 10-17 (hereinafter “Tr. at__ ”).) The following summary contains only the facts essential to the Court’s evaluation of Defendant’s objections.

         Plaintiff first submitted an application for Supplemental Security Income (“SSI”) to the Social Security Administration (“SSA”) in either June or July of 2012. (Tr. 10, 94.) Plaintiff alleged that he had been disabled since May 10, 2012, owing to chronic pain in his neck, lower back, knees, and left wrist. (Tr. at 94, 110.) His SSI application was denied on November 26, 2012. (Tr. at 39-46.)

         On February 26, 2014, ALJ Oksana Xenos held a de novo hearing on Plaintiff’s SSI application. Plaintiff, who was unrepresented (tr. at 23-24), and Vocational Expert Pauline McEachin testified at the hearing. (Tr. at 21-38.) At the hearing, the ALJ asked Plaintiff whether, in addition to the documents he had brought to the hearing, there were any health care providers that the SSA should obtain updated records from. (Tr. at 25-26.) After naming a few such health care providers, Plaintiff testified as follows:

ALJ: Go ahead.
CLMT: Mendolsohn, Dr. Mendolsohn. I just had surgery on my knee.
ALJ: Mendolsohn?
CLMT: Yeah. And he did surgery on my knee.
ALJ: Oh. And where is he located?
CLMT: On the Lavan and Five Mile.
ALJ: Lavan and Five Mile?
CLMT: Yes.
ALJ: And what is that, is that Livonia over there or what?
CLMT: I think that is Livonia. Yes.
ALJ: Okay. When did you have that surgery with him?
CLMT: Last month, around the -- I think it was the 24th. It was the ...

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