United States District Court, E.D. Michigan, Southern Division
VALINDA L. TOLLES, Plaintiff,
ACTING COMMISSIONER NANCY A. BERRYHILL, Defendant.
& ORDER (1) OVERRULING PLAINTIFF’S OBJECTION (DKT.
28), (2) ACCEPTING THE RECOMMENDATION OF THE MAGISTRATE JUDGE
(DKT. 27), (3) DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT (DKT. 15), (4) GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT (DKT. 21), AND AFFIRMING THE
COMMISSIONER’S FINAL DECISION
A. GOLDSMITH, JUDGE
Valinda L. Tolles appeals from the final determination of the
Commissioner of Social Security that she is not entitled to
Supplemental Security Income and Disability Insurance
Benefits. The matter was referred to Magistrate Judge R.
Steven Whalen for a Report and Recommendation
(“R&R”). The parties filed cross-motions for
summary judgment (Dkts. 15, 21), and Magistrate Judge Whalen
issued an R&R recommending that the Court grant the
Commissioner’s motion for summary judgment and deny
Tolles’ motion for summary judgment (Dkt. 27). Tolles
filed an objection to the R&R (Dkt. 28) and the
Commissioner filed a reply brief (Dkt. 29).
reasons that follow, the Court overrules Tolles’
objection and accepts the recommendation contained in the
magistrate judge’s R&R. The Commissioner’s
motion is granted, and Tolles’ motion is denied. The
final decision of the Commissioner is affirmed.
Court reviews de novo those portions of the R&R to which
a specific objection has been made. See 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72(b). Under 42 U.S.C. §
405(g), this Court’s “review is limited to
determining whether the Commissioner’s decision
‘is supported by substantial evidence and was made
pursuant to proper legal standards.’” Ealy v.
Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir.
2010) (quoting Rogers v. Comm’r of Soc. Sec.,
486 F.3d 234, 241 (6th Cir. 2007)). “Substantial
evidence is ‘such relevant evidence as a reasonable
mind might accept as adequate to support a
conclusion.’” Lindsley v. Comm’r of
Soc. Sec., 560 F.3d 601, 604 (6th Cir. 2009) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)). In
determining whether substantial evidence exists, the Court
may “look to any evidence in the record, regardless of
whether it has been cited by the [Administrative Law Judge
(“ALJ”)].” Heston v. Comm’r of
Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001).
“[T]he claimant bears the burden of producing
sufficient evidence to show the existence of a
disability.” Watters v. Comm’r of Soc. Sec.
Admin., 530 F. App’x 419, 425 (6th Cir. 2013).
case has a lengthy history. As relevant here, Tolles filed a
Title II application for a period of disability and
Disability Insurance Benefits alleging a disability onset
date of April 1, 2006. Admin. Record (“AR”) at
1049 (Dkt. 13). She eventually received a partially favorable
decision finding that she had a disability onset date of May
26, 2011. Tolles appealed the determination that she was not
disabled for the period from April 1, 2006 to May 26, 2011.
Her appeal was successful, and the case was remanded to a new
ALJ. The new ALJ also denied Tolles’ application for
benefits under Title II, and Tolles appealed again. Once
again, she succeeded on her appeal, and the case made its way
to a third ALJ. On February 14, 2017, the ALJ denied benefits
for the relevant time period. Id. at 1050. The
appeal before this Court arises from the February 14, 2017
motion for summary judgment, Tolles argues that the
ALJ’s decision to discount Dr. Louis Fuchs’
medical opinion was not supported by substantial evidence.
Pl. Mot. for Summ. J. at 10-12 (Dkt. 15). Dr. Fuchs was the
agency’s medical examiner who testified at the ALJ
hearing. Id. She also argues that the ALJ should
have found that she had a residual functional capacity
(“RFC”) to perform sedentary work, rather than
light work, which would have necessarily resulted in a
finding of disability under 20 C.F.R. § Part 404,
Subpart. P, App. 2, R. 201.09. Id. at 13-14. And she
argues that the ALJ failed to properly consider her
subjective symptoms. Id. at 15-25. The magistrate
judge was not persuaded by Tolles’ arguments and
recommends denying her motion for summary judgment.
makes a single objection to the R&R. She argues that the
magistrate judge erred by finding that the ALJ properly
addressed Tolles’ past relevant work. Obj. at 1.
Specifically, she argues that the ALJ did not specify the
duties involved in her previous work and the ALJ did not
perform an adequate “function-by-function”
assessment. Id. This argument with respect to her
previous work was not raised before the magistrate
judge. A failure to raise certain arguments
before a magistrate judge renders those arguments waived;
courts generally will not consider new arguments presented
for the first time on review. Murr v. United States,
200 F.3d 895, 902 n.1 (6th Cir. 2000); Murphy v.
Lockhart, 826 F.Supp.2d 1016, 1025-1026 (E.D. Mich.
2011) (collecting cases). But even if this argument were
properly before this Court, it would not alter the outcome of
objection is aimed at the fourth step of the five-step
sequential evaluation process to determine whether an
individual is disabled within the meaning of the Social
Security Act. 20 C.F.R. § 404.1520(a)(1). The ALJ found
that Tolles met the requirements of the first three steps. AR
1053-1057. At the fourth step, the ALJ determined that Tolles
had an RFC to perform light work and an ability to perform
her past relevant work as a “hand cutter –
balloon” as actually and generally performed, and as a
maintenance worker as actually performed. AR 1063. Because
the ALJ found that Tolles, in light of her RFC, could engage
in past relevant work, the ALJ found she was not disabled at
step four. AR 1063-1064; see also 20 C.F.R. §
404.1560(b)(3) (explaining that if a claimant can perform
past relevant work, the claimant is not considered disabled).
Notwithstanding this finding, the ALJ found in the
alternative that at the fifth step of the sequential
analysis, based on Tolles’ age, education, work
experience, and RFC, that there were jobs in the national
economy she was capable of performing during the relevant
period. AR 1064-1065.
objections, Tolles does not dispute the RFC determination
that she can perform light work and does not dispute the
ALJ’s finding that there were jobs in the national
economy during the relevant time that she could have
performed. Instead, Tolles argues that the ALJ
mischaracterized her past work as a “balloon
worker” and that her maintenance position was not
substantial gainful activity. Obj. at 1-2. Even if the Court
were to agree with Tolles that the ALJ erred in finding that
she was capable of performing past relevant work, her appeal
would still fail because she does not object to the RFC
determination and she does not object to the ALJ’s
step-five analysis. In other words, the ALJ concluded that
Tolles was not entitled to benefits at step four (because she
could perform past relevant work) and he concluded that she
was not entitled to benefits at step five (because there were
jobs in the national economy that she could perform).
Accordingly, Tolles’ objection is overruled.