United States District Court, E.D. Michigan, Southern Division
TERRY L. MCDANIEL, Plaintiff,
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
Anthony P. Patti United States Magistrate Judge
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. §
D. Borman United States District Judge
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
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.
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.
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
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
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?
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 ...