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Grady v. Commissioner of Social Security

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

September 5, 2019

John E. Grady, Plaintiff,
v.
Commissioner of Social Security, Defendant.

          Mona 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 [#14]

          Hon. Gershwin A. Drain, United States District Court Judge

         I. Introduction

         This 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.

         Plaintiff 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).

         The ALJ 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.

         The ALJ 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.

         After 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. Id.

         Plaintiff 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).

         On July 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. 18.

         II. Analysis

         This 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.”).

         1. Objection

         One 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 Plaintiff's ...


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