UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Janice Bailey,

Plaintiff,

v. Case No. 15-10623

Honorable Sean F. Cox

Magistrate Judge Patricia T. Morris 

Commissioner of Social Security,

Defendant.

______________________________/

ORDER ACCEPTING AND ADOPTING 

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Plaintiff Janice Bailey (“Plaintiff”) brought this action seeking judicial review of

Defendant Commissioner of Social Security’s (“Defendant”) determination that she is not

entitled to Disability Insurance Benefits under 42 U.S.C. § 405(g). (Doc. # 1). 

All proceedings in this action were referred to Magistrate Judge Patricia T. Morris

pursuant to 28 U.S.C. § 636(b)(1)(B). (Doc. # 2). Sometime thereafter, Plaintiff and Defendant

filed cross-motions for summary judgment. (Doc. # 21; Doc. # 26). 

On December 28, 2016, Magistrate Judge Morris issued a Report and Recommendation

(“R&R), wherein she recommended that the Court DENY Plaintiff’s Motion for Summary

Judgment, GRANT Defendant’s Motion for Summary Judgment and AFFIRM the decision of

the Administrative Law Judge (“ALJ”). (Doc. # 27, R&R). Plaintiff filed a timely objection to

the December 28, 2016 R&R on January 11, 2017. (Doc. # 29, Pl.’s Obj.). Defendant timely

responded to Plaintiff’s objection on January 25, 2017. (Doc. # 31, Def.’s Resp.). 

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For the reasons outlined below, the Court finds Plaintiff’s objections to be without merit. 

The Court shall therefore ACCEPT AND ADOPT the R&R, GRANT Defendant’s Motion for

Summary Judgment and DENY Plaintiff’s Motion for Summary Judgment. 

STANDARD OF REVIEW 

Pursuant to Federal Rule of Civil Procedure 72(b), a party objecting to the recommended

disposition of a matter by a Magistrate Judge must file objections to the R&R within fourteen

(14) days after being served with a copy of the R&R. Fed. R. Civ. P. 72(b)(2). Objections must

“(A) specify the part of the order, proposed findings, recommendations, or report to which a

person objects; and (B) state the basis for the objection.” E.D. Mich. LR 72.1(d). 

Objections are not “a second opportunity to present the argument already considered by

the Magistrate Judge.” Betancourt v. Ace Ins. Co. of Puerto Rico, 313 F. Supp. 2d 32, 34

(D.P.R. 2004). Moreover, the district court should not consider arguments that have not first

been presented to the magistrate judge. See Stonecrest Partners, LLC v. Bank of Hampton

Roads, 770 F. Supp. 2d 778, 785 (E.D.N.C. 2011). 

“The district judge must determine de novo any part of the magistrate judge’s disposition

that has been properly objected to. The district judge may accept, reject, or modify the

recommended disposition; receive further evidence; or return the matter to the magistrate judge

with instructions.” Fed. R. Civ. P. 72(b)(3). 

ANALYSIS

At the outset, the Court notes that Plaintiff’s objections are not properly labeled, making

it difficult for the Court to discern which provisions of the R&R Plaintiff objects to. With this in

mind, it appears that Plaintiff takes issue with the Magistrate Judge’s determination that the ALJ

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properly assessed the severity of Plaintiff’s mental impairments and the Magistrate Judge’s

determination that the ALJ properly accorded great weight to the opinion of the agency’s nonexamining source, Dr. Tsai, even though certain records were not before Dr. Tsai at the time that

he completed his review. 

 Plaintiff appears to advance the following objections to the R&R: (1) the Magistrate

Judge was under the mistaken impression that Plaintiff did not argue that the Hillside reports

were from treating sources; (2) the Magistrate Judge erred in claiming that the ALJ “plainly

considered [Plaintiff’s] nonsevere mental impairments at each step of the disability

determination, including the RFC assessment;” (3) the Magistrate Judge erred in concluding that

because the ALJ considered the Hillside opinions in rendering his findings, Plaintiff cannot

demonstrate any error in according Dr. Tsai’s opinion great weight; and (4) the Magistrate Judge

erred in claiming that, by simply reciting the GAF scores in the record, the ALJ provided

sufficient indication that he gave due consideration to the Hillside non-treating opinions. None

of Plaintiff’s objections have merit. 

First, Plaintiff unpersuasively argues that the Magistrate Judge was mistaken when she

asserted that Plaintiff did not argue that the Hillside reports were from a treating source. Notably

absent from Plaintiff’s Motion for Summary Judgment was any substantive discussion as to

whether and why the Hillside opinions were from treating sources. Instead, Plaintiff merely

asserted, in a conclusory fashion, that the opinions were from Plaintiff’s “treating” psychiatrist

and therapist. As such, Plaintiff’s first objection is overruled. 

Plaintiff’s second argument–that the Magistrate Judge was wrong when she concluded

that the ALJ considered Plaintiff’s mental impairments at each step–is equally unpersuasive. As

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a threshold matter, this argument is conclusory. Moreover, as Magistrate Judge Morris correctly

notes in her R&R, the ALJ’s decision “plainly considered” Plaintiff’s nonsevere mental

impairments at each step. A review of the ALJ’s decision supports the Magistrate Judge’s

conclusion. Accordingly, Plaintiff’s second objection is overruled. 

In her third argument, Plaintiff disagrees that the ALJ did not err in according great

weight to Dr. Tsai’s opinion (even though Dr. Tsai did not review the Hillside opinions) because

the ALJ considered the opinions himself. In making this argument, Plaintiff argues that

Magistrate Judge Morris “endorses a bald speculation that IF Dr. Tsai has [sic] actually had

evidence, he WOULD HAVE had a basis for his opinion, and the ALJ WOULD HAVE been

justified in giving that opinion great weight.” (Pl.’s Obj. at 4) (emphasis in original). This

argument misconstrues the Magistrate Judge’s R&R. 

First, Magistrate Judge Morris correctly explained that where there is some indication

that the ALJ at least considered records that were not before the state agency sources, there is no

problem with according greater weight to the stage agency source than a treating source. (R&R

at 18). Next, the Magistrate Judge correctly noted that “[w]ith respect to mental impairments,

the ALJ’s findings must show that he considered the Hillside opinions in his analysis.” (Id. at

19). The R&R concludes that the ALJ “provided sufficient indication that he considered this

evidence in his opinion.” (Id.). The Court agrees with the Magistrate Judge’s reasoning as to

this point. As such, Plaintiff’s third objection is overruled. 

In her final argument, Plaintiff summarily asserts that Magistrate Judge Morris erred

when she claimed that the ALJ sufficiently indicated that he gave due consideration to the

Hillside opinions by “simply reciting the GAF scores in the record...” (Pl.’s Obj. at 4). This

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argument is without merit and wholly disregards the Magistrate Judge’s analysis: “[t]he ALJ’s

clear-as-day citation to the Hillside opinions–which directly follows the passage [Plaintiff]

quotes ... signals [the ALJ’s] consideration thereof.” (R&R at 19). The R&R then proceeds to

cite to specific portions of the transcript evidencing the ALJ’s consideration of the Hillside

opinions. As such, Plaintiff’s final objection is overruled. 

ORDER 

For the reasons set forth above IT IS ORDERED that the Court ACCEPTS AND

ADOPTS the December 28, 2016 R&R. IT IS FURTHER ORDERED that Plaintiff’s Motion

for Summary Judgment is DENIED, Defendant’s Motion for Summary Judgment is

GRANTED, and this case shall be DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

s/Sean F. Cox 

Sean F. Cox

United States District Judge

Dated: March 6, 2017

I hereby certify that a copy of the foregoing document was served upon counsel of record on

March 6, 2017, by electronic and/or ordinary mail.

s/Jennifer McCoy 

Case Manager

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