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Rottmann v. Berryhill

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

August 22, 2019

Joyce Rottman, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          David R. Grand Mag. Judge

          ORDER ADOPTING REPORT AND RECOMMENDATION [22]

          JUDITH E. LEVY UNITED STATES DISTRICT JUDGE

         Before the Court is Magistrate Judge David R. Grand's Report and Recommendation (“R&R”) (ECF No. 22) recommending that the Court grant defendant Commissioner of Social Security's (the “government”) motion for summary judgment (ECF No. 19), deny plaintiff Joyce Rottman's (“Rottman”) motion for summary judgment (ECF No. 15), and affirm the Administrative Law Judge's (“ALJ”) decision. Rottman submitted four objections to the R&R, (ECF No. 25), and the government responded. (ECF No. 26.) For the reasons set forth below, Rottman's objections are overruled, and the R&R is adopted in full.

         I. Background

         The Court has carefully reviewed the R&R and is satisfied that it is a thorough account of the relevant portions of the record. The Court incorporates the factual background from the R&R as if set forth herein.

         II. Legal Standard

         A party may object to a magistrate judge's report and recommendation on dispositive motions, and a district judge must resolve proper objections under a de novo standard of review. 28 U.S.C. § 636(b)(1)(B)-(C); Fed.R.Civ.P. 72(b)(1)-(3). “For an objection to be proper, Eastern District of Michigan Local Rule 72.1(d)(1) requires parties to ‘specify the part of the order, proposed findings, recommendations, or report to which [the party] objects' and to ‘state the basis for the objection.'” Pearce v. Chrysler Group LLC Pension Plan, 893 F.3d 339, 346 (6th Cir. 2018). Objections that restate arguments already presented to the magistrate judge are improper, Coleman-Bey v. Bouchard, 287 Fed.Appx. 420, 422 (6th Cir. 2008) (citing Brumley v. Wingard, 269 F.3d 629, 647 (6th Cir. 2001)), as are those that dispute the general correctness of the report and recommendation. Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995).

         Moreover, objections must be clear so that the district court can “discern those issues that are dispositive and contentious.” Id. (citing Howard v. Sec'y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991)); see also Thomas v. Arn, 474 U.S. 140, 147 (1985) (explaining that objections must go to “factual and legal” issues “at the heart of the parties' dispute”). In sum, Rottman's objections must be clear and specific enough that the Court can squarely address them on the merits. See Pearce, 893 F.3d at 346.

         The Supreme Court recently articulated the standard the district court must apply when conducting its de novo review. In Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019), the Court explained that the phrase “substantial evidence” is a “term of art.” Id. (internal citations omitted). “Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains ‘sufficien[t] evidence' to support the agency's factual determinations.” Id. (internal citations omitted). “And whatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence . . . is ‘more than a mere scintilla.'” Id. (internal citations omitted). Specifically, “[i]t means-and means only-'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Id. (internal citations omitted).

         III. Analysis

         A. Objection 1

         In her first objection, Rottman argues that the ALJ did not properly weigh the opinion of her endocrinologist, Dr. Ashish Verma. (ECF No. 25 PageID.1384.) Rottman's first objection has three parts. She argues that the ALJ: (1) “selectively chose” from the restrictions in Dr. Verma's opinion in determining the residual functional capacity (“RFC”) and provided no reason for disregarding the other restrictions (Id. at PageID.1386); (2) provided unpersuasive reasons for giving little weight to Dr. Verma's opinion (Id. at PageID.1388, 1390-1395); and (3) impermissibly substituted his own medical judgment for that of Dr. Verma's (Id. at PageID.1389.).

         Dr. Verma is an endocrinologist who has been treating Rottman since 2006. (Tr. 818.) He completed two nearly-identical medical source statements on July 27, 2016 and October 17, 2016, with the only difference between them being that, in the later-dated statement, he indicated that his medical findings and limitations were present since June 2014, which was not included in his earlier statement. (Tr. 818-19; 1195-96.) Dr. Verma opined that Rottman's symptoms of diabetic neuropathy included sensory changes in both her hands and feet, reflex changes in her feet, grip strength weakness in both hands, pain in her feet and hands, and loss of vibration sense. (Tr. 818.) He also noted that Rottman could sit for up to four hours, and stand/walk for one hour. (Id.) He stated that she could lift or carry five pounds for up to one-third of an eight-hour work day, and that she would need breaks every one to two hours to check her blood sugar. (Tr. 819.) He also stated that she would be able to occasionally use her extremities for simple grasping and reaching, but never for pushing/pulling, fine manipulating, or foot/leg controls. (Id.) He also noted that, while engaging in occasional standing or walking, Rottman should use a cane because she has “neuropathy legs with poor balance.” (Id.)

         In his decision, the ALJ considered Dr. Verma's opinions, and, while the ALJ did “not contest that [Rottman] has peripheral neuropathy, ” he concluded that “this condition has been accommodated by limiting her work at the light exertional level, restricting her use of bilateral foot controls to occasional, and precluding her from work around unprotected heights and moving, mechanical parts.” (ECF No. 11-2 at PageID.54.) He also noted that, as to her hands, Rottman's “reduced grip strength that is noted by Dr. Verma has also been accounted for with the limitation ...


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