UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Ella Mae White, 

Plaintiff, 

v. 

Carolyn W. Colvin, Acting 

Commissioner of the Social 

Security Administration, 

Defendant. 

________________________________/

Case No. 14-cv-12870 

Hon. Judith E. Levy 

Mag. Judge Michael J. Hluchaniuk

ORDER ADOPTING THE MAGISTRATE JUDGE’S REPORT 

AND RECOMMENDATION [16], DENYING PLAINTIFF’S 

MOTION FOR SUMMARY JUDGMENT [12], AND GRANTING 

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [13] 

 Plaintiff Ella Mae White brings this action pursuant to 42 U.S.C. 

§ 405(g), challenging the Commissioner of Social Security’s denial of her 

application for disability insurance benefits under the Social Security 

Act. Cross motions for summary judgment were filed (Dkts. 12, 13), 

and this case was referred to Magistrate Judge Michael J. Hluchaniuk 

for issuance of a Report and Recommendation. Magistrate Judge 

Hluchaniuk recommended that the Court deny plaintiff’s motion for 

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summary judgment, grant defendant’s motion for summary judgment, 

and affirm the Commissioner’s final decision denying plaintiff disability 

benefits. Plaintiff filed timely objections to the Magistrate Judge’s 

Report and Recommendation. (Dkt. 17). Defendant timely filed a 

response to plaintiff’s objections. (Dkt. 18.) 

For the reasons set forth below, plaintiff’s objections to the Report 

and Recommendation are denied. The Court adopts the Report and 

Recommendation, denies plaintiff’s motion for summary judgment, 

grants defendant’s motion for summary judgment, and affirms the 

Commissioner’s final decision. 

I. Standard of Review 

An applicant who is not satisfied with the Commissioner’s final 

decision may obtain review in federal district court. 42 U.S.C. § 405(g). 

The district court “must affirm the Commissioner’s conclusions absent a 

determination that the Commissioner has failed to apply the correct 

legal standard or has made findings of fact unsupported by substantial 

evidence in the record.” Longworth v. Comm’r of Soc. Sec., 402 F.3d 

591, 595 (6th Cir. 2005) (internal quotation marks omitted). The Court 

may affirm, modify, or reverse the Commissioner’s decision, and may 

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also choose to remand the case for rehearing where appropriate. 42 

U.S.C. § 405(g). 

The Commissioner’s findings of fact are given substantial 

deference on review and are conclusive if supported by substantial 

evidence. Barker v. Shalala, 40 F.3d 789, 795 (6th Cir. 1994); 42 U.S.C. 

§ 405(g). Substantial evidence is “more than a scintilla but less than a 

preponderance; it is such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion.” Rogers v. Comm’r of Soc. 

Sec., 486 F.3d 234, 241 (6th Cir. 2007). If there is substantial evidence 

to support the Commissioner’s decision, the district court must affirm it 

even if substantial evidence also supports a contrary conclusion. Bass 

v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Wright v. Massanari, 

321 F.3d 611, 614 (6th Cir. 2003); see also Cutlip v. Sec’y of Health and 

Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (explaining that if the 

decision is supported by substantial evidence, “it must be affirmed even 

if the reviewing court would decide the matter differently . . . and even 

if substantial evidence also supports the opposite conclusion.”). 

When deciding whether there is substantial evidence to support 

the Commissioner’s factual findings, the district court is limited to an 

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examination of the record and should consider the record as a whole. 

Bass, 499 F.3d at 512-13; Wyatt v. Sec’y of Health and Human Servs., 

974 F.2d 680, 683 (6th Cir. 1992). However, neither the Commissioner 

nor the reviewing court must discuss every piece of evidence in the 

administrative record. Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 

496, 508 (6th Cir. 2006). 

In cases where a magistrate judge has submitted a Report and 

Recommendation and a party has filed timely objections, the district 

court conducts a de novo review of those parts of the Report and 

Recommendation to which the party objects. 28 U.S.C. § 636(b)(1)(C). 

II. Analysis 

The Court adopts the factual background set forth in the Report 

and Recommendation. 

Plaintiff raises two objections to the Magistrate Judge’s Report 

and Recommendation: (1) the Magistrate Judge and the Administrative 

Law Judge (“ALJ”) erred when they did not adequately address 

plaintiff’s credibility; and (2) the Magistrate Judge erred in finding that 

the ALJ’s decision was supported by substantial evidence. (Dkt. 17.) 

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Defendant responds by arguing that (1) plaintiff’s challenge to the 

ALJ’s credibility finding was improperly raised for the first time in her 

objection to the Report and Recommendation; (2) the ALJ properly 

evaluated plaintiff’s credibility, regardless; (3) plaintiff, in stating that 

the ALJ’s decision was not supported by substantial evidence, fails to 

identify which evidence the ALJ or Magistrate Judge did not evaluate; 

and (4) the ALJ addressed and evaluated every condition that plaintiff 

contends the ALJ failed to address. (Dkt. 18.) 

Plaintiff’s first objection, that the Magistrate Judge and ALJ 

failed to adequately address her credibility, is waived. “A claim raised 

for the first time in objections to a magistrate judge's report is deemed 

waived.” Swain v. Comm'r of Soc. Sec., 379 F. App'x 512, 517-18 (6th 

Cir. 2010) (further citation omitted). Nowhere in plaintiff’s motion for 

summary judgment did she raise any issue related to the assessment of 

her credibility. (See generally Dkt. 12.) Further, plaintiff has provided 

virtually no argument as to how either the ALJ or Magistrate Judge 

erred in assessing her credibility, and instead relies on cursory 

references to her own testimony and a handful of references to cases 

and regulations that do not relate to assessments of credibility. 

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Plaintiff’s second objection is that the Magistrate Judge erred in 

finding that the ALJ’s decision was supported by substantial evidence. 

Again, plaintiff does not indicate what evidence, specifically, the ALJ 

“misconstrued” or “overlooked.” (Dkt. 17 at 4.) Instead, plaintiff argues 

generally that evidence exists somewhere in the record that would 

support her claim of disability. 

To the extent that plaintiff makes a specific objection, it is that 

“the ALJ did not obtain any consultative examinations or opinions from 

a medical expert” regarding her alleged psychological impairments and, 

as a result, “the ALJ drafted an RFC that was inconsistent with the 

restrictions given by Plaintiff’s treating physician.” (Dkt. 17 at 5-6.) 

First, as defendant points out, “[a]n ALJ has discretion to 

determine whether further evidence, such as additional testimony, is 

necessary.” Foster v. Halter, 279 F.3d 348, 355 (6th Cir. 2001) (citing 20 

C.F.R. § 404.1517.) During the proceedings in front of the ALJ, plaintiff 

provided no medical evidence that she actually suffered from any of her 

alleged psychological impairments. It is the plaintiff’s burden to show 

that a severe impairment exists for the purposes of determining 

disability. Bowen v. Yuckert, 482 U.S. 137, 146 (1987). Here, plaintiff 

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did not meet that burden, because she not only alleged no psychological 

disability in the record, but, as the Magistrate Judge noted, her medical 

records “evidence a stated lack of any unusual depression or anxiety.” 

(Dkt. 16 at 26.) An ALJ does not abuse his or her discretion by 

declining to seek additional testimony or evaluations from a medical 

expert as to a claimed impairment when the record not only fails to 

indicate that the impairment exists, but, in fact, shows that the plaintiff 

was repeatedly evaluated for and found to lack the claimed impairment. 

Second, plaintiff’s contention that the ALJ drafted an RFC that 

was inconsistent with the restrictions given by plaintiff’s treating 

physician is insufficiently specific to permit the Court to conduct a 

review under 28 U.S.C. § 636(b)(1)(C). The fact that an ALJ’s RFC is 

inconsistent with the restrictions given by a treating physician is not 

itself an error, and does not merit remand. Plaintiff provides no further 

argument as to how the ALJ erred by coming to a different conclusion 

from her treating physician. Accordingly, she has not indicated which 

“portions of the report or specified proposed findings or 

recommendations” she is objecting to, other than the general 

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conclusions set forth on pages 26 and 28 of the Report and 

Recommendation, or what the basis for her objections is. 

On de novo review of the portions of the Report and 

Recommendation to which plaintiff has raised objections, it is hereby 

ordered that: 

Magistrate Judge Hluchaniuk’s Report and Recommendation 

(Dkt. 16) is ADOPTED; 

Plaintiff’s motion for summary judgment (Dkt. 12) is DENIED; 

and 

Defendant’s motion for summary judgment (Dkt. 13) is 

GRANTED. 

IT IS SO ORDERED. 

Dated: September 3, 2015 s/Judith E. Levy 

Ann Arbor, Michigan JUDITH E. LEVY 

United States District Judge 

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CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s 

ECF System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on September 3, 2015. 

s/Felicia M. Moses 

FELICIA M. MOSES 

Case Manager 

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