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McCarley v. Berryhill

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

March 27, 2018

SueAnn McCarley, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security Defendant.

          Mag. Judge Anthony P. Patti

          ORDER ADOPTING MAGISTRATE JUDGE PATTI'S REPORT AND RECOMMENDATION [20]

          Judith E. Levy, United States District Judge

         On February 12, 2018, Magistrate Judge Anthony P. Patti issued a Report and Recommendation recommending the Court deny plaintiff's motion for summary judgment (Dkt. 14), grant defendant's motion for summary judgment (Dkt. 18), and affirm the Commissioner's decision to deny plaintiff benefits under the Social Security Act. (Dkt. 20.)

         Plaintiff filed a timely objection to the Report and Recommendation on February 26, 2018. Where a magistrate judge has submitted a Report and Recommendation and a party has timely filed objections to some or all of the Report and Recommendation, the Court reviews de novo those parts of the Report and Recommendation to which the party has objected. 28 U.S.C. § 636(b)(1).

         I. Background

         The Court adopts by reference the background set forth in the Report and Recommendation, having reviewed it and found it to be accurate and thorough. (Dkt. 20 at 2-6.)

         II. Analysis

         The Court's review of a determination of the Commissioner of Social Security “is limited to determining whether it is supported by substantial evidence and was made pursuant to proper legal standards.” Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.2007). “Substantial evidence is less than a preponderance but more than a scintilla; it refers to relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Gentry v. Comm'r of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014) (citing Rogers, 486 F.3d at 241).

         Plaintiff filed a single objection to the Report and Recommendation, arguing that the Magistrate Judge erred when he upheld the Administrative Law Judge's (“ALJ”) determination that plaintiff could work as a surveillance system monitor given her residual functional capacity (“RFC”). Under plaintiff's theory, the ALJ failed to discharge his duty requiring him to resolve a conflict between two sources of information: a vocational expert and the Dictionary of Occupational Titles (“DOT”). (Dkt. 21 at 1.) Plaintiff argues that she cannot complete the tasks required of a surveillance system monitor as described in the DOT, and the ALJ erred by relying, instead, on the vocational expert's testimony indicating that she could perform those tasks. (Id.) Specifically, plaintiff points the Court to the fact that the job of surveillance system monitor requires “frequent” talking and “significant” interaction with people. (Id. at 2.) Additionally, a surveillance system monitor must be able to handle more than “simple” tasks. (Id. at 4.)

         Defendant counterargues that plaintiff has waived these claims, because they are either raised for the first time as objections or cannot be relitigated at the objection stage when they were litigated before the magistrate judge. Alternatively, defendant argues that plaintiff cannot now allege that the vocational expert's testimony conflicts with the DOT because she failed to cross examine the vocational expert about such conflicts at the time of the testimony.

         A. Waiver of Argument

         Defendant's primary argument against granting plaintiff's objection is a procedural one. The Commissioner argues that plaintiff waived her arguments in three different ways. First, plaintiff may not “re-hash her prior complaints with the ALJ's decision.” (Dkt. 22 at 3.) Second, plaintiff raises her argument that the duties of surveillance system monitor are inconsistent with her “RFC limitation to ‘few, if any, workplace changes'” for the first time at this stage of the litigation. (Id. at 6). Third, plaintiff cannot now claim that the vocational expert's testimony is inconsistent with the DOT because she did not cross-examine the vocational expert in the administrative hearing on this issue. (Id. at 3.)

         Defendant's first two arguments are not persuasive because they are logically inconsistent. Defendant essentially argues that plaintiff cannot assert her claims because she already argued them, but also she cannot assert her claims because she did not previously raise them.

         Defendant cites Davis v. Caruso, a 2008 Eastern District of Michigan case, for the proposition that “at this stage of the proceeding, Plaintiff cannot simply re-hash her prior complaints with the ALJ's decision.” (Dkt. 22 at 3.) In Davis, the plaintiff was not given the benefit of de novo review of the magistrate judge's decision because his objection to the Report and Recommendation was untimely, and thus could not be considered. Davis v. Caruso, No. 07-10115, 2008 WL 540818, at *2 (E.D. Mich. Feb. 25, 2008). It is true that the court noted there, in dicta, that the plaintiff “merely rehash[ed] his arguments” rather than filing a specific objection to the Magistrate Judge's Report and Recommendation. Id. But, here, plaintiff does “raise a specific objection” to the Report and Recommendation by objecting to the Magistrate Judge's specific finding that the job of surveillance system monitor was consistent with her RFC. (Dkt. 21 at 1.) Plaintiff carried her burden of identifying “specific issues for ...


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