United States District Court, N.D. Ohio, Eastern Division
JESSICA SPEARS, Plaintiff.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
C. NUGENT United States District Judge
matter comes before the Court upon the Report and
Recommendation of Magistrate Judge Jonathan D. Greenberg,
which was issued on November 21, 2017 (ECF #21). Defendant,
Nancy Berryhill, as Acting Commissioner of the Social
Security Administration ("SSA"), indicated she
would not file objections to die Report and Recommendation.
(ECF #22). For the following reasons, the Report and
Recommendation, is hereby ADOPTED.
Ms. Spears, challenges the final decision of the SSA denying
her applications for Period of Disability ("POD"),
Disability Insurance Benefits ("DIB"), and
Supplemental Security Income ("SSI") under Titles
II and XVI of the Social Security Act, 42 U.S.C. §
416(1), 423, 1381 et seq. (ECF #1). After the
initial denial, Ms. Spears requested a hearing before an
administrative law judge ("ALJ"). On December 14,
2015, the AIJ issued a decision finding Ms. Spears was not
Complaint, Ms. Spears alleges the following errors with the
1. The ALJ"s residual functional capacity found
Plaintiff capable of frequent fine and gross handling
bilaterally. This finding is in error because the ALJ
assigned "little weight" to the opinions of the
State Agency medical consultants, reasoning that "later
records and the claimant's testimony reveal that further
limitations are warranted." However, the ALJ found
Plaintiff more capable than the medical consultants found,
and he failed to adequately assess Plaintiffs symptoms: and
2. The ALJ found at step five of the sequential evaluation
process that Plaintiff had the ability to perform jobs that
exist in significant numbers in the national economy. This
finding is in error because the ALJ relied upon vocational
expert opinion which was based upon a hypothetical question
unsupported by evidence.
(ECF #21, p. 3).
November 2L 2017, Magistrate Judge Greenberg issued his
Report and Recommendation. (ECF #21). As to the first
assignment of error, the Magistrate Judge found that the ALJ
failed to sufficiently articulate his basis for assessing Ms.
Spears' manipulative ability as greater than previously
determined, despite medical records indicating worsening
symptoms. (ECF #21, p. 35). The Magistrate Judge found that
such error was not harmless, and recommends that this matter
be remanded to the ALJ for reconsideration. Since this matter
is being remanded, the Magistrate Judge did not address or
rule upon the second assignment of error.
Standard of Review for a Magistrate Judge's Report
applicable district court standard of review for a magistrate
judge's report and recommendation depends upon whether
objections were made to that report. When objections are made
to a report and recommendation of a magistrate judge, the
district court reviews the case de novo. Fed. R.
Civ. P. 72(b) provides:
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
text of Rule 72(b) addresses only the review of reports to
which objections have been made; it does not indicate the
appropriate standard of review for those reports to which no
objections have been properly made. The Advisory Committee on
Civil Rules commented on a district court's review of
unopposed reports by magistrate judges. In regard to
subsection (b) of Rule 72, the advisory committee states:
"When no timely objection is filed, the court need only
satisfy itself that there is no clear error on the face of
the record in order to accept the
recommendation." Fed. R. Civ. P. 72 advisory
committee's notes (citation omitted).
U.S. Supreme Court stated in Thomas v. Am, 474 U.S.
140, 150 (1985): "It does not appear that Congress
intended to require district court review of a magistrate
judge's factual or legal conclusions, under a de
novo or any other standard, when neither party objects
to those findings."