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Spears v. Berryhill

United States District Court, N.D. Ohio, Eastern Division

February 22, 2018

JESSICA SPEARS, Plaintiff.
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          DONALD C. NUGENT United States District Judge

         This 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.

         Plaintiff, 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 disabled.[1]

         In her Complaint, Ms. Spears alleges the following errors with the ALJ decision:

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).

         On 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.

         I. Standard of Review for a Magistrate Judge's Report and Recommendation

         The 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 instructions.

         The 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).

         The 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."

         II. L ...


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