United States District Court, W.D. Tennessee, Eastern Division
ORDER OVERRULING PLAINTIFF'S OBJECTIONS TO REPORT
AND RECOMMENDATION, ADOPTING REPORT AND RECOMMENDATION, AND
AFFIRMING DECISION OF THE COMMISSIONER
DANIEL BREEN UNITED STATES DISTRICT JUDGE.
January 2, 2013, the pro se Plaintiff, Dineen
Jordan, appealed from a final decision of the Commissioner of
Social Security (the "Commissioner") denying her
application for disability insurance benefits under Title II
of the Social Security Act, 42 U.S.C. § 401, et
seq. (Docket Entry ("D.E.") 1.) Pursuant to
Administrative Order No. 2013-05, this matter was referred to
the United States magistrate judge for all pretrial matters
for determination or report and recommendation, as
appropriate. On June 16, 2017, United States Magistrate Judge
Tu M. Pham issued a report and recommendation in which he
recommended that the decision of the Commissioner be
affirmed. (D.E. 27.) Before the Court are the Plaintiff's
timely objections to the report and
recommendation. (D.E. 32.) In resolving objections to a
report and recommendation, "[t]he 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.
review of Jordan's objections reveals that their focus
lies solely with the magistrate judge's recommendation to
affirm the denial of her claim by the administrative law
judge (ALJ) at the fifth step of the sequential analysis set
forth in the Social Security Regulations. Specifically,
Plaintiff takes issue with the testimony of the vocational
expert (VE) adduced at the hearing before the ALJ from which
this appeal arose.
event an ALJ finds during the analysis that the claimant
cannot perform her past relevant work, he must at step five
determine whether she can perform other work existing in
significant numbers in the national economy. See 20
C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g)(1) &
416.960(c). Evidence regarding this determination may be
obtained by means of a hypothetical question posed by the ALJ
to a VE, the response to which he is permitted to rely upon
in making his decision. Gibbens v. Comm'r of Soc.
Sec., 659 F.App'x 238, 248-49 (6th Cir. 2016). The
hypothetical must include an accurate portrayal of the
claimant's physical and mental impairments. Koster v.
Comm'r of Soc. Sec., 643 F.App'x 466, 479 (6th
Cir. 2016) (quoting Ealy v. Comm'r of Soc. Sec.,
594 F.3d 504, 516 (6th Cir. 2010)).
hearing, the ALJ asked VE Nancy Hughes whether there were
jobs existing in significant numbers in the national or
regional economy that could be performed by a hypothetical
person of Plaintiff's age, education, experience, and
residual functional capacity. Based on Hughes's testimony
in response to his inquiry, the ALJ concluded at step five
that jobs existed in significant numbers in the national
economy that could be performed by Jordan during the time
period at issue.
objections, Plaintiff points to numerous specific errors in
Hughes's testimony. However, neither of her submissions
before the magistrate judge (D.E. 24 & 26) contained any
of these assertions nor, in fact, made any mention whatever
of the VE or her testimony. In her complaint, as noted by
Judge Pham, she alleged only that "Ms. Hughes never
physically examined Plaintiff." (D.E. 1 at PageID 8.)
Thus, the arguments contained in her objections were not made
to the magistrate judge.
claim raised for the first time in objections to a magistrate
judge's report is deemed waived." Swain v.
Comm'r of Soc. Sec., 379 F.App'x 512, 517-18
(6th Cir. 2010). There are two reasons for this rule:
Systemic efficiencies would be frustrated and the
magistrate's role reduced to that of a mere dress
rehearser if a party were allowed to feint and weave at the
initial hearing, and saved its knockout punch for the second
round. In addition, it would be fundamentally unfair to
permit a litigant to set its case in motion before the
magistrate judge, wait to see which way the wind was blowing,
and -- having received an unfavorable recommendation -- shift
gears before the district judge.
Owens v. Comm'r of Soc. Sec., Case No. 15-10920,
2016 WL 5660526, at *1 (E.D. Mich. Sept. 29, 2016). Although
she is representing herself in this matter, Jordan's
filings have been detailed, articulate, and thorough. She has
offered no reason for her failure to raise her arguments
relative to the VE earlier. Accordingly, the Court finds she
has waived the assertions raised in her objections.
reasons articulated herein, the Plaintiff's objections
are OVERRULED, the report and recommendation of the
magistrate judge is ADOPTED, and the decision of the
Commissioner is AFFIRMED.
The Commissioner has not responded to
the objections and the time for such response has expired.
See Fed. R. ...