Hirman v. O'Malley

U.S. District Court, District of Minnesota February 7, 2024

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Jason H., Case No. 23-cv-0743 (WMW/LIB)

Plaintiff,
ORDER ADOPTING REPORT AND
v. RECOMMENDATION

Martin J. O’Malley, Commissioner of
Social Security Administration,

Defendant.

This matter is before the Court on the January 4, 2024 Report and Recommendation
(“R&R”) of United States Magistrate Judge Leo I. Brisbois. (Dkt. 23.) As the R&R
provides a detailed factual and procedural history, the Court briefly summarizes the
background of this litigation. On March 27, 2023, Plaintiff Jason H. commenced this
action, seeking judicial review of Defendant Martin J. O’Malley’s decision to deny
Plaintiff’s application for disability benefits. Plaintiff moves for relief and O’Malley
moves for summary judgment. The R&R recommends granting in part and denying in part
Plaintiff’s motion for relief and denying O’Malley’s motion for summary judgment.
O’Malley filed timely objections to the R&R. (Dkt. 24.) For the reasons addressed below,
the Court overrules O’Malley’s objections and adopts the R&R.
ANALYSIS
The Court reviews de novo those portions of an R&R to which a party has objected

and “may accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge.”

28 U.S.C. § 636

(b)(1)(C); D. Minn. LR 72.2(b)(3).  A 
party’s objections to an R&R must address the portions of the magistrate judge’s R&R to 
which objections are made and offer a basis for the objections.  Mayer v. Walvatne, No. 
07-cv-1958,

2008 WL 4527774

, at *2 (D. Minn. Sept. 28, 2008).  The Court reviews for 
clear error objections that restate arguments that were made to and considered by the 

magistrate judge.  Montgomery v. Compass Airlines, LLC,

98 F. Supp. 3d 1012, 1017

 (D. 
Minn. Mar. 30, 2015).  The Court does not consider evidence that was not submitted to the 
magistrate judge for consideration.  Roberts v. Apfel,

222 F.3d 466, 470

 (8th Cir. 2000).  
Absent specific objections, the Court reviews an R&R for clear error.  Grinder v. Gammon,

73 F.3d 793, 795

 (8th Cir. 1996).                                         

I.   O’Malley’s Objections to the R&R                                     
    O’Malley objects to the R&R, arguing that the magistrate judge failed to consider 
his argument that Dr. Larbi-Odam’s limitation on “repetitive” operation of foot controls 
would not preclude Plaintiff from  performing not only “frequent use,” but the  more 
strenuous “repetitive use” of foot controls.                              

    O’Malley’s objection, however, misconstrues the magistrate judge’s analysis.  The 
magistrate judge considered the argument and found that the ALJ failed to sufficiently 
develop the record to allow for a meaningful review on appeal.  Specifically, the magistrate 
judge found that the ALJ only provided generic references to the objective evidence in the 
record.  These generic references failed to sufficiently explain the contradiction between 
the ALJ’s decision that Dr. Larbi-Odam’s opinions were persuasive and the ALJ’s implied 

decision not to include all of Dr. Larbi-Odam’s opined limitation in the RFC determination.  
Because the record lacks this explanation, the Court cannot evaluate whether the ALJ’s 
decision is supported by substantial evidence.  As this objection restates an argument made 
to and considered by the magistrate judge, this Court reviews this portion of the R&R for 
clear error. See Montgomery,

98 F.Supp.3d at 1017

.  Having found no clear error here, 
O’Malley’s objection is overruled.                                        

    Alternatively, O’Malley objects to the R&R, contending that the ALJ’s decision 
should be affirmed because the vocational expert identified jobs that do not require the use 
of foot controls. At step five of the of the administrative review process, “the burden shifts 
to the Commissioner to show there are other available jobs in the economy.” Moore v. 
Astrue,

572 F.3d 520, 523

  (8th  Cir.  2009).    O’Malley’s  argument  is  based  on  the 

descriptions of job duties provided by the Dictionary of Occupational Titles (“DOT”). 
These descriptions provided by the DOT, however, do not address whether foot controls 
are required for these jobs.  Nor do these descriptions provide the possible physical, mental 
and environmental demands of a job.  Moreover, nothing in the record indicates that foot 
controls are required for these jobs.  As such, O’Malley’s argument is unavailing, and this 

objection is overruled.                                                   
II.  Clear Error Review                                                   
    The Court reviews the remainder of the R&R for clear error. See Grinder,

73 F.3d at 795

; see also Fed. R. Civ. P. 72(b) advisory committee’s note (“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.”).  After careful review of the R&R, the 
Court finds no clear error and, therefore, adopts the R&R.

ORDER

    Based on the R&R and all the files, records and proceedings herein, IT IS HEREBY 

ORDERED:                                                                  
    1.   Defendant Martin J. O’Malley’s objections, (Dkt. 24), to the January 4, 2024 
R&R, are OVERRULED;                                                       
    2.   The January 4, 2024 R&R, (Dkt. 23), is ADOPTED;                 
    3.   Plaintiff’s motion for relief, (Dkt. 15), is GRANTED in part and DENIED 
in part, as set forth in the R&R;                                         

    4.   Defendant’s motion for summary judgment, (Dkt. 21), is DENIED;   
    5.   Defendant’s  duplicative  brief  requesting  relief  by  affirming  the 
Commissioner’s Decision, (Dkt. 22), is DENIED;  and                       
    6.   This matter is REMANDED to the Social Security Administration, pursuant 
to sentence four of

42 U.S.C. § 405

(g), for further administrative proceedings consistent 

with this order.                                                          
    LET JUDGMENT BE ENTERED ACCORDINGLY.                                 

Dated: February 7, 2024             s/ Wilhelmina M. Wright              
                                   Wilhelmina M. Wright                  
                                   United States District Judge