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Zibble v. Commissioner of Social Security

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

September 17, 2019

DARRELL R. ZIBBLE, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Patricia T. Morris, Magistrate Judge.

          ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION (ECF #17); GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF #15); DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF #14)

          Victoria A. Roberts, United States District Judge.

         I. INTRODUCTION

         Plaintiff Darrell Zibble (“Zibble”) filed a claim for Title II disability insurance benefits. The Administrative Law Judge (“ALJ”) denied this claim on April 11, 2018. Zibble and Defendant Commissioner of Social Security filed cross-motions for summary judgment. Magistrate Judge Patricia T. Morris issued a Report and Recommendation (“R&R”) recommending that the Court deny Zibble's Motion for Summary Judgment and grant Defendant's Motion for Summary Judgment. Zibble timely objected.

         The Court agrees with Magistrate Judge Morris's analysis and ADOPTS the R&R. The Court GRANTS Commissioner's Motion for Summary Judgment and DENIES Plaintiff's Motion.

         II. STANDARD OF REVIEW

         When a party properly objects to any part of a magistrate judge's report and recommendation, the Court reviews these portions de novo. Fed.R.Civ.P. 72(b). The party must object to specific portions of the report, citing a specific source of error, to be entitled to de novo review. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). General objections that do not cite a point of error are not valid objections and have “the same effects as would a failure to object.” Howard v. Sec'y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). In effect the Court may treat such objections as waived. See Bellmore-Byrne v. Comm'r of Soc. Sec., No. 15-11950, 2016 WL 5219541, at *1 (E.D. Mich. Sept. 22, 2016).

         One of Zibble's objections is barred. It is simply a restatement of a previous argument. Zibble argues that the ALJ failed to develop the record or make findings regarding dosages and amounts of medications that Zibble was taking. Zibble says this approach conflicts with Sixth Circuit precedent. However, this merely restates an argument made in Zibble's brief and is waived. Zibble makes several arguments regarding the side effects of narcotic medications. The other objections about medication side effects were made properly, but Zibble's complaint regarding the responsibility of the ALJ to make specific findings about the dosage of medications is waived because it is a restatement.

         Zibble is also barred from raising new issues in his objections if he did not raise them in his original petition. Murr v. United States, 200 F.3d 895, 902 n. 1 (6th Cir. 2000). Therefore, Zibble's argument that the ALJ did not properly consult with a medical advisor when determining the RFC is not valid. Zibble argues that the RFC assessment must link the ALJ's findings to specific RFC capabilities; however, since Zibble is raising this issue for the first time in his objection to the R&R, it is waived.

         The above arguments are barred on procedural grounds. Zibble's properly made objections are now considered on the merits.

         III. ANALYSIS

         1. Zibble argues that the ALJ did not properly consider the side effects of narcotic medications when calculating the Residual Functional Capacity.

         Zibble's first objection is that he has significant side effects from taking several narcotic medications, and that the ALJ failed to account for these side effects when calculating the Residual Functional Capacity (“RFC”). The alleged side effects are (1) drowsiness, (2) dizziness, and (3) nausea. Zibble does not press his argument about the effect of nausea on his ability to perform light work; therefore, the Court will focus on the complaints of drowsiness and dizziness. In his Reply to the Commissioner's response to the original Objections, Zibble also claims broadly that his past highly skilled work “is not always congruent to being under the influence of narcotic medications, ” without specifying further. Doc. No. 22 at PageID.795. The Court will consider this and other references to Zibble's alleged social limitations to be a reference to the impact of narcotic medications on his mental state.

         a. ...


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