United States District Court, E.D. Michigan, Southern Division
John E. Grady, Plaintiff,
Commissioner of Social Security, Defendant.
K. Majzoub, United States Magistrate Judge
ORDER OVERRULING PLAINTIFF'S OBJECTION [#17] AND
ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION [#16]
DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [#11] AND
GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Gershwin A. Drain, United States District Court Judge
matter is before the Court on Plaintiff John Grady's
appeal of the social security commissioner's decision to
deny him Social Security Disability benefits. Plaintiff is a
forty six year old man who worked as a dump truck driver and
diesel mechanic helper before his alleged disability. Dkt.
No. 11, pg. 5 (Pg. ID 402). Plaintiff alleged disability from
Hepatitis, right leg pain, bipolar disease, depression,
anxiety, and addiction to medication. Id.
filed an application for Social Security Disability benefits
and an application for Supplemental Security Income on July
10, 2015. Dkt. No. 11, pg. 4 (Pg. ID 401). Plaintiff's
initial application was denied and he filed an appeal and
requested a hearing before an Administrative Law Judge
(“ALJ”). The ALJ determined that Plaintiff has
the following severe impairments: Hepatitis C, status post
traumatic right lower extremity injuries, anxiety, panic
disorder, adjustment disorder with depressed mood, cannabis
use disorder, and opiate use disorder. Dkt. No. 9-2, pg. 15
(Pg. ID 40). However, the ALJ concluded that the Plaintiff
does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the
listed impairments in part four of the sequential analysis of
the statute. Id. The ALJ found that Plaintiff did
not have an extreme limitation on his ability to walk.
Id. He reasoned that Plaintiff's statements
about the intensity, persistence, and limiting effects of his
symptoms were inconsistent with his medical records, which
suggested that Plaintiff's impairments were mild.
Id. at pg. 18 (Pg. ID 43).
determined that Plaintiff has the residual functional
capacity (“RFC”) to perform light work, except:
Plaintiff cannot climb ladders, ropes, or scaffolds; he can
occasionally balance, kneel, stoop, crouch, crawl, and climb
ramps and stairs; and he can occasionally push, pull, and
operate foot controls with his right lower extremity.
Id. at pg. 17 (Pg. ID 42). The ALJ stated that
Plaintiff can perform simple, routine, and repetitive tasks.
Id. However, Plaintiff cannot work at a production
rate pace and must avoid all exposure to hazards like
unprotected heights and moving machinery. Id. The
ALJ noted that Plaintiff was scheduled for a total knee
replacement surgery in July of 2017. Id. at pg. 19
(Pg. ID 44). However, the ALJ stated that there were no
records about the procedure or the reasoning behind it in the
medical records. Id.
concluded that Plaintiff could perform any past relevant
work; but Plaintiff could perform jobs that exist in
significant numbers in the national economy, such as: kitchen
helper, marker, and hand packager. Id. at pg. 22
(Pg. ID 47). Therefore, the ALJ denied Plaintiff's
application on September 25, 2017. Id.
Plaintiff's hearing before the ALJ, but before the ALJ
issued his decision, Plaintiff underwent his scheduled knee
surgery in July of 2017. Plaintiff then submitted a letter
from his representative and a report of the knee surgery to
the Appeals Council. Id. On October 7, 2017,
Plaintiff requested the Appeals Council to review the
ALJ's unfavorable decision. Id. The Appeals
Council refused to consider the evidence and did not file it.
Id. On March 14, 2018, the Appeals Council also
refused to review the ALJ's unfavorable decision.
filed his appeal with this Court on May 2, 2018. Dkt. No. 1.
On that same day, this Court referred the case to Magistrate
Judge Mona Majzoub. Dkt. No. 3. On August 27, 2018, Plaintiff
filed his Motion for Summary Judgment. Dkt. No. 11.
Plaintiff's Motion argued that the Appeals Council should
have accepted his knee surgery report and that the ALJ's
credibility determination was not supported by substantial
evidence. Id. at pg. 11 (Pg. ID 408). On November
28, 2018, Defendant filed his Motion for Summary Judgment.
Dkt. No. 14. In his Motion, Defendant stated that the
decision to deny benefits was supported by substantial
evidence in the record. Id. at pg. 1 (Pg. ID 428).
2, 2019, Magistrate Judge Majzoub issued a Report and
Recommendation (“R&R”) recommending that this
Court deny Plaintiff's Motion for Summary Judgment and
grant Defendant's Motion for Summary Judgment. Dkt. No.
16. On July 15, 2019, Plaintiff filed an Objection to the
Report and Recommendation, stating that the magistrate judge
misjudged the reliability of his testimony about his symptoms
and arguing that if the Appeals Council considered his knee
surgery report, it would have resulted in a favorable
disability decision. Dkt. No. 17. Defendant responded to the
Objection on July 25, 2019, stating that the magistrate judge
properly considered Plaintiff's subjective complaints and
that Plaintiff's knee surgery report would not have
provided new and material evidence requiring remand. Dkt. No.
Court employs “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)(C). This Court “may accept, reject or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” Id. However,
when objections are “merely perfunctory responses . . .
rehashing . . . the same arguments set forth in the original
petition, reviewing courts should review [a Report and
Recommendation] for clear error.” Ramirez v.
U.S., 898 F.Supp.2d 659, 663 (S.D.N.Y. 2012); see
also Funderburg v. Comm'r of Soc. Sec., No.
15-10068, 2016 WL 1104466, at *1 (E.D. Mich. Mar. 22, 2016)
(Hood, J.) (noting that the Plaintiff's objections merely
restated his summary judgment arguments, “an approach
that is not appropriate or sufficient.”).
Plaintiff's first objection states that the magistrate
judge incorrectly assessed the reliability of his testimony.
Dkt. No. 17, pg. 3 (Pg. ID 469). Plaintiff states that the
magistrate incorrectly evaluated the objective medical
evidence of examining physicians; improperly considered
Plaintiff's unemployment payments; improperly considered