UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JODI CHRISTINE VETTER,

Plaintiff,

Case No. 14-13214

v. Hon. Gerald E. Rosen

Magistrate Judge Anthony P. Patti

COMMISSIONER OF

SOCIAL SECURITY,

Defendant.

_______________________________/

ORDER ADOPTING

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

At a session of said Court, held in

the U.S. Courthouse, Detroit, Michigan

on September 30, 2015 

PRESENT: Honorable Gerald E. Rosen

Chief Judge, United States District Court

On June 16, 2015, Magistrate Judge Anthony P. Patti issued a Report and

Recommendation (“R & R”) recommending that the Court deny Plaintiff Jodi

Christine Vetter’s motion for summary judgment and grant the Defendant

Commissioner of Social Security’s motion for summary judgment. Plaintiff filed

objections to the R & R on June 30, 2015, and Defendant responded to these

objections on July 6, 2015. The Court has now reviewed the R & R, Plaintiff’s

objections, Defendant’s response, the parties’ underlying summary judgment

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motions, and the remainder of the record. For the reasons stated below, the Court

overrules Plaintiff’s objections and adopts the Magistrate Judge’s thorough and

well-reasoned R & R as the opinion of this Court.

As her principal objection to the R & R, Plaintiff contends that the

Magistrate Judge erred in concluding that substantial evidence supports the

hypothetical questions posed by the Administrative Law Judge (“ALJ”) to the

vocational expert. Specifically, while the ALJ found at the third step of the

sequential evaluation process that Plaintiff had “moderate difficulties” with regard

to concentration, persistence or pace due to her depression, (Admin. Record at 16),

Plaintiff maintains that the ALJ erred by failing to explicitly incorporate this

finding of moderate limitations into his hypothetical questioning of the vocational

expert, and instead determining that these limitations were adequately accounted

for by restricting Plaintiff to unskilled work.

The Magistrate Judge extensively addressed this precise issue in the R & R,

and the Court has little to add to this analysis. As observed by the Magistrate

Judge, a number of cases in this District have considered the question whether,

and under what circumstances, limiting a claimant to unskilled work adequately

accounts for the claimant’s moderate deficiencies in concentration, persistence, or

pace. (See R & R at 15-20 (surveying this case law).) In particular, some courts

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have overturned a denial of benefits where an ALJ found that a claimant was

moderately limited in concentration, persistence or pace but the ALJ’s

determination of the claimant’s residual functional capacity (“RFC”) lacked any

such specific reference to these limitations. See, e.g., Brown v. Commissioner of

Social Security, 672 F. Supp.2d 794, 797 (E.D. Mich. 2009); Benton v.

Commissioner of Social Security, 511 F. Supp.2d 842, 849 (E.D. Mich. 2007);

Edwards v. Barnhart, 383 F. Supp.2d 920, 930 (E.D. Mich. 2005). Other courts in

this District — including this one — have eschewed an inflexible, per se rule that

an RFC finding must expressly refer to a claimant’s moderate limitations in

concentration, persistence, or pace, and have instead advocated a “case-by-case

determination” whether the ALJ’s findings in their totality have been appropriately

“harmonized and incorporated into” the ALJ’s assessment of the claimant’s RFC

and hypothetical questioning of the vocational expert. Bohn-Morton v.

Commissioner of Social Security, 389 F. Supp.2d 804, 806-07 (E.D. Mich. 2005)

(Rosen, J.); see also Southworth v. Commissioner of Social Security, No. 12-

12243, 2013 WL 3388946, at *16-*17 (E.D. Mich. July 8, 2013); Lewicki v.

Commissioner of Social Security, No. 09-11844, 2010 WL 3905375, at *3 (E.D.

Mich. Sept. 30, 2010); Street v. Commissioner of Social Security, 390 F. Supp.2d

630, 638-39 (E.D. Mich. 2005).

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Upon surveying these and other cases, the Magistrate Judge found that the

latter decisions were more persuasive and on point here, (see R & R at 19-22), and

this Court concurs. As observed by the Magistrate Judge, the ALJ’s finding that

Plaintiff experienced moderate difficulties in concentration, persistence, or pace

evidently rested solely on Plaintiff’s own responses in a function report. (See id.

at 15-16 (citing Admin. Record at 16).) Yet, the ALJ noted that this self-report

was somewhat mixed, with Plaintiff stating that she “sometimes finishes what she

starts and she can follow instructions well.” (Admin. Record at 16.) Moreover,

the Magistrate Judge pointed to Plaintiff’s testimony at the administrative hearing

that “she was having no difficulties maintaining attention or concentration,

understanding information or instructions, or making decisions,” and that her

depression instead “manifested itself in terms of her mood.” (R & R at 20

(emphasis in original) (citing Admin. Record at 54).) The Magistrate Judge

further observed that there was “nothing in the record” — such as, for instance, the

opinion of a medical source — to indicate that the ALJ’s limitation of Plaintiff to

unskilled work did not adequately account for Plaintiff’s moderate difficulties in

concentration, persistence, or pace. (R & R at 21.) Under the totality of this

record, the Magistrate Judge found — and this Court agrees — that substantial

evidence supports the ALJ’s determination of Plaintiff’s RFC and hypothetical

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questioning of the vocational expert, despite the absence of any explicit reference

in this RFC and hypothetical questioning to moderate limitations in concentration,

persistence, or pace. (See R & R at 21-22.)

Plaintiff’s remaining two objections to the R & R are wholly perfunctory

and warrant very little discussion. First, Plaintiff points to evidence in the record

that, in her view, indicates that the ALJ did not adequately account for her severe

migraine headaches in determining her RFC. Yet, the Magistrate Judge

extensively addressed this same challenge in the R & R, (see R & R at 22-27), and

Plaintiff fails to even acknowledge this analysis in her objections, much less

endeavor to explain how the Magistrate Judge might have erred in this analysis. 

Likewise, while Plaintiff takes issue with the Magistrate Judge’s conclusion that

the ALJ identified sufficient grounds for discounting Plaintiff’s testimony about

her headaches, she does nothing more than simply state this objection, without

presenting any sort of developed argument as to how the Magistrate Judge might

have erred in reaching this conclusion. As the Defendant Commissioner observes,

cursory objections of this sort are tantamount to no objection at all. See Howard v.

Secretary of Health & Human Services, 932 F.2d 505, 509 (6th Cir. 1991)

(holding that “[a] general objection to the entirety of the magistrate’s report has

the same effects as would a failure to object,” because such a generalized

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objection fails to focus the district court’s attention “on any specific issues for

review, thereby making the initial reference to the magistrate useless”).

For these reasons,

NOW, THEREFORE, IT IS HEREBY ORDERED that Plaintiff’s June 30,

2015 objections (docket #15) to the Magistrate Judge’s Report and

Recommendation are OVERRULED. IT IS FURTHER ORDERED that the

Magistrate Judge’s June 16, 2015 Report and Recommendation (docket #14) is

ADOPTED as the opinion of this Court. Finally, IT IS FURTHER ORDERED,

for the reasons set forth in the Magistrate Judge’s Report and Recommendation,

that Plaintiff’s December 29, 2014 motion for summary judgment (docket #11) is

DENIED, and that Defendant’s January 22, 2015 motion for summary judgment

(docket #13) is GRANTED.

s/Gerald E. Rosen 

Chief Judge, United States District Court

Dated: September 30, 2015

I hereby certify that a copy of the foregoing document was served upon the parties

and/or counsel of record on September 30, 2015, by electronic and/or ordinary

mail.

s/Julie Owens 

Case Manager, (313) 234-5135

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