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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DAWN A. SMITH,

Plaintiff,

v.

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

Case No. 08-15317

DISTRICT JUDGE

ARTHUR J. TARNOW

MAGISTRATE JUDGE 

VIRGINIA M. MORGAN

______________________________/

ORDER

ADOPTING THE REPORT AND RECOMMENDATION [14],

GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [13],

DENYING PLAINTIFF’S AMENDED MOTION FOR SUMMARY JUDGMENT [10],

and 

DISMISSING THE CASE

On December 30, 2008, Dawn Smith (“Plaintiff”) filed suit seeking judicial review of a final

decision by which the Commissioner of Social Security (“Defendant”) disallowed Plaintiff’s claims

for Disability Insurance Benefits under Title II of the Social Security Act. Plaintiff alleged disability

was due to “morbid obesity, recurring right wrist de Quervain’s tendonitis, a C6/7 bulge without

stenosis or radiculopathy, a history of cervical strain, right scaphoid fracture, possible carpal tunnel

syndrome, arthritis of the bilateral knees and probable inferior wall diaphragm attenuation defect.”

Plaintiff’s alleged onset date was October 4, 2004.

Pursuant to Local Rule 72.1(b)(3), “all cases seeking review of a denial of social security

benefits [are] assigned both to a district judge and a magistrate judge.” On January 5, 2010, the

Magistrate issued a Report and Recommendation (“R&R”) [14] recommending that the Court deny

Plaintiff’s Motion for Summary Judgment [10] and grant Defendant’s Motion for Summary

Judgment [13]. On January 26, 2010, Plaintiff filed Objections [15] to the Report and

Recommendation. Defendant filed a Response [17] to Plaintiff’s Objections.

Those filings are now before the Court.
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I. STANDARD OF REVIEW

Judicial review of facts found by the Administrative Law Judge (“ALJ”) is limited to an

evaluation of whether those findings are supported by substantial evidence and whether the proper

legal standards were applied. Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997). The Court must

examine the administrative record as a whole. Cutlip v. Sec’y of Health & Human Servs., 25 F.3d

284, 286 (6th Cir. 1994). However, the Court does not review the evidence de novo, make

credibility determinations, or weigh the evidence. Brainard v. Sec’y of Health & Human Servs., 889

F.2d 679, 681 (6th Cir. 1989). The Court must affirm an ALJ’s decision if the findings and

inferences reasonably drawn from the record are supported by substantial evidence, even if the

record could support a different conclusion. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001).

Under 28 U.S.C. § 636(b)(1), a magistrate judge's orders shall not be disturbed unless “found

to be clearly erroneous or contrary to law.” United States v. Curtis, 237 F.3d 598, 603 (6th Cir.

2001). The “clearly erroneous” standard requires the Court to affirm the Magistrate's decision

unless, after reviewing the entirety of the evidence, it “is left with the definite and firm conviction

that a mistake has been committed.” Sandles v. U.S. Marshal's Service, 2007 WL 4374077, 1 (E.D.

Mich. 2007) (citing United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).

This Court reviews de novo any objections to a Magistrate’s Report and Recommendation.

See 28 U.S.C. § 636(b)(1). Here, Plaintiff has filed Objections, and the assignments of error are

considered below.

II. PLAINTIFF’S OBJECTIONS

I. ALJ’s Credibility Finding

In the Report and Recommendation [14], the Magistrate summarizes the ALJ’s evaluation

of evidence pertaining to Plaintiff’s credibility. See R&R at 3-7. 

In Plaintiff’s Objections [15], Plaintiff suggests that “the ALJ does not sufficiently explain

the adverse credibility finding as is required by the SSA rules and regulations,” and that thus, “the

ALJ’s findings do not allow for review,” making remand appropriate. Pl.’s Obj. at 1. 

In Response [17], Defendant identifies the Social Security regulations that require an ALJ

to consider a variety of factors in evaluating a claimant’s subjective allegations of disability. Def.’s

Resp. at 1-2 (citing 20 C.F.R. §§ 404.1529©, 416.929©; SSR 96-97p). Defendant then summarizes
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both the Magistrate’s analysis of the administrative record, and the record evidence that supports

the ALJ’s original determination. Id. at 2; 2-4.

The Court reviews de novo Plaintiff’s assignment of error regarding the ALJ’s assessment

of Plaintiff’s credibility. See 28 U.S.C. § 636(b)(1). As the Magistrate advised the parties, “[t]he

filing of objections which raise some issues, but fail to raise others with specificity, will not preserve

all the objections [Plaintiff] might have to this Report and Recommendation.” See R&R at 12 (citing

Willis v. Sec’y of HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of Teachers Local

231, 829 F.2d 1370, 1373 (6th Cir. 1987)). Here, it is difficult for the Court to ascertain from

Plaintiff’s superficial Objections [15] exactly how the ALJ is alleged to have erred in conducting

the credibility analysis, or in what respect the Magistrate’s review is alleged to be deficient.

The Social Security regulations provide the following language guiding the agency’s

determination of the extent to which symptoms affect a claimant’s capacity to perform basic work

activities:

We will consider your statements about the intensity, persistence, and limiting effects

of your symptoms, and we will evaluate your statements in relation to the objective

medical evidence and other evidence, in reaching a conclusion as to whether you are

disabled. We will consider whether there are any inconsistencies in the evidence and

the extent to which there are any conflicts between your statements and the rest of

the evidence, including your history, the signs and laboratory findings, and

statements by your treating or nontreating source or other persons about how your

symptoms affect you. Your symptoms, including pain, will be determined to

diminish your capacity for basic work activities . . . to the extent that your alleged

functional limitations and restrictions due to symptoms, such as pain, can reasonably

be accepted as consistent with the objective medical evidence and other evidence.

20 C.F.R. § 416.929(c)(4).

Here, “[a]fter considering the evidence of record,” the ALJ found “that the claimant’s

medically determinable impairments could reasonably be expected to produce the alleged symptoms;

however, the claimant’s statements concerning the intensity, persistence and limiting effects of these

symptoms are not credible to the extent they are inconsistent with the residual functional capacity

assessment for the [listed] reasons.” Tr. at 18. 

Summarizing, the ALJ found that:

The objective medical evidence does not demonstrate the existence of physical

abnormalities which can be expected to result in limitations beyond those set forth
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herein. In making this determination, [the ALJ] considered the claimant’s subjective

complaints, but finds the claimant’s testimony regarding an inability to work was not

wholly credible due to significant inconsistencies in the record as a whole. The

objective medical evidence does not support a disabling severity of her conditions

nor the duration, frequency, or intensity of the symptoms as alleged. The claimant’s

need for medication or other treatment is not consistent with an inability to work.

There are inconsistencies in daily activities, other factors, and medical opinions that

do not support a determination of disability.

Tr. at 19. The ALJ then specifically recounted the “inconsistencies in the evidence and the extent

to which there are any conflicts between [Plaintiff’s] statements and the rest of the evidence,

including [Plaintiff’s] history, the signs and laboratory findings, and statements by [Plaintiff’s]

treating and nontreating source[s].” See 20 C.F.R. § 416.929(c)(4); cf. Tr. at 19-21.

In the absence of more specifically articulated objections from Plaintiff, the Court must agree

with the Magistrate that “the ALJ considered appropriate factors including the objective medical

evidence and other evidence, such as: [Plaintiff’s] medication and treatment, her daily activities, and

her work history,” and that the ALJ “gave good reasons for finding that Plaintiff’s subjective

complaints of total disability were not fully credible.” See R&R at 15, 17. Furthermore, the Court

acknowledges that “[s]ince the ALJ has the opportunity to observe the demeanor of a witness, his

conclusions with respect to credibility should not be discarded lightly and should be accorded

deference.” See Casey v. Sec’y of Health and Human Servs., 987 F.2d 1230, 1234 (6th Cir. 1993).

Therefore, Plaintiff’s objection regarding the ALJ’s credibility determination will be

DENIED.

II. ALJ’s Treatment of Plaintiff’s Testimony

Plaintiff also states that “[i]f the ALJ had not overlooked the Plaintiff’s testimony that is

consistent with the treating medical sources, her limitations would preclude substantial gainful

activity.” Plaintiff does not identify the testimony that she believes the ALJ failed to consider.

This objection does not satisfy the specificity requirement set forth in the Magistrate’s

Report and Recommendation, and the Court is unable to conduct a meaningful review of Plaintiff’s

argument. Furthermore, this objection appears to be a reiteration of Plaintiff’s objection regarding

the ALJ’s credibility determination, which has been DENIED, above.

III. CONCLUSION

The Court having reviewed the administrative record, the Magistrate’s Report and
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Recommendation, and the parties’ pleadings in this case, and being fully advised in the premises,

IT IS HEREBY ORDERED that the Report and Recommendation [14] of the Magistrate

Judge is hereby ADOPTED. Plaintiff’s Objections [15] thereto are DENIED.

Accordingly, Defendant’s Motion for Summary Judgment [13] is GRANTED, and

Plaintiff’s Motion for Summary Judgment [10] is DENIED.

The case is hereby DISMISSED.

SO ORDERED.

S/ARTHUR J. TARNOW 

Arthur J. Tarnow

United States District Judge

Dated: March 26, 2010

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

26, 2010, by electronic and/or ordinary mail.

S/LISA M. WARE 

Case Manager