UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

GLENDA J. BARR, 

 

 Plaintiff, Civil Action No. 14-13477 

 Honorable Robert H. Cleland 

 Magistrate Judge David R. Grand 

v. 

 

COMMISSIONER OF 

SOCIAL SECURITY, 

 

 Defendant. 

__________________________________/ 

REPORT AND RECOMMENDATION 

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT [15, 18] 

Plaintiff Glenda J. Barr (“Barr”) brings this action pursuant to 42 U.S.C. §405(g), 

challenging the final decision of Defendant Commissioner of Social Security (“Commissioner”) 

denying her application for Disability Insurance Benefits (“DIB”) under the Social Security Act 

(the “Act”). Both parties have filed summary judgment motions [15, 18], which have been 

referred to this Court for a Report and Recommendation pursuant to 28 U.S.C. §636(b)(1)(B). 

I. RECOMMENDATION 

For the reasons set forth below, the Court finds that substantial evidence supports the 

Administrative Law Judge’s (“ALJ”) conclusion that Barr is not disabled under the Act. 

Accordingly, the Court recommends that the Commissioner’s Motion for Summary Judgment 

[18] be GRANTED, Barr’s Motion for Summary Judgment [15] be DENIED, and that, pursuant 

to sentence four of 42 U.S.C. §405(g), the ALJ’s decision be AFFIRMED. 

II. REPORT 

A. Procedural History 

On April 5, 2012, Barr filed an application for DIB, alleging a disability onset date of 

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June 29, 2008. (Tr. 98-104). This application was denied initially on May 30, 2012. (Tr. 77-

81). Barr filed a timely request for an administrative hearing, which was held on April 17, 2013, 

before ALJ Timothy Christensen. (Tr. 44-67). Barr, who was represented by attorney Kiel 

Roeschke, testified at the hearing, as did vocational expert Scott Silver. (Id.). On May 22, 2013, 

the ALJ issued a written decision finding that Barr is not disabled. (Tr. 30-40). On July 11, 

2014, the Appeals Council denied review. (Tr. 1-5). Barr timely filed for judicial review of the 

final decision on September 8, 2014. (Doc. #1). 

B. Framework for Disability Determinations

Under the Act, DIB are available only for those who have a “disability.” See Colvin v. 

Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). The Act defines “disability” as the: 

inability to engage in any substantial gainful activity by reason of any 

medically determinable physical or mental impairment which can be 

expected to result in death or which has lasted or can be expected to last 

for a continuous period of not less than 12 months. 

42 U.S.C. §1382c(a)(3)(A). The Commissioner’s regulations provide that a disability is to be 

determined through the application of a five-step sequential analysis: 

Step One: If the claimant is currently engaged in substantial gainful 

activity, benefits are denied without further analysis. 

Step Two: If the claimant does not have a severe impairment or 

combination of impairments that “significantly limits . . . physical or 

mental ability to do basic work activities,” benefits are denied without 

further analysis. 

Step Three: If the claimant is not performing substantial gainful activity, 

has a severe impairment that is expected to last for at least twelve months, 

and the severe impairment meets or equals one of the impairments listed in 

the regulations, the claimant is conclusively presumed to be disabled 

regardless of age, education, or work experience. 

Step Four: If the claimant is able to perform his or her past relevant work, 

benefits are denied without further analysis. 

Step Five: Even if the claimant is unable to perform his or her past 

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relevant work, if other work exists in the national economy that the 

claimant can perform, in view of his or her age, education, and work 

experience, benefits are denied. 

Scheuneman v. Comm’r of Soc. Sec., 2011 WL 6937331, at *7 (E.D. Mich. Dec. 6, 2011) (citing 

20 C.F.R. §404.1520); see also Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 

2001). “The burden of proof is on the claimant throughout the first four steps .... If the analysis 

reaches the fifth step without a finding that claimant is not disabled, the burden transfers to the 

[defendant].” Preslar v. Sec’y of Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994). 

C. Background 

 1. Barr’s Reports and Testimony1

In an undated disability report, Barr, who was born in 1972, indicated that she was 5’5” 

tall and weighed 330 pounds.2

 (Tr. 117, 145). She lived in a house with her husband and son. 

(Tr. 49, 137). She completed high school and took a childcare vocational preparation course. 

(Tr. 47, 118). Barr stopped working on June 29, 2008, after she suffered a back injury in a car 

accident. (Tr. 51). She alleges that she still suffers from a “herniated and torn disc,” as well as 

nerve and muscle damage. (Tr. 117). She has undergone physical therapy, epidural steroid 

injections, and a rhizotomy; in addition, a specialist recommended a laminectomy, but she opted 

not to undergo this surgery for fear it would make her condition worse. (Tr. 60-61). 

Barr testified that she still experiences constant low back pain, which “pinches the 

nerves” and “goes down [her] legs.” (Tr. 52-53). The pain ranges from 4/10 to 10/10 on the 

pain scale, and worsens with walking, standing, and sitting. (Tr. 53). She is most comfortable 

 

1

 The ALJ found that Barr’s mental impairments are non-severe. (Tr. 32-33). Barr does not 

challenge this conclusion and cites only evidence related to her physical impairments in her 

motion for summary judgment. Consequently, the Court will limit its discussion to Barr’s 

physical impairments. 

2

 By the time of the administrative hearing in April 2013, Barr had undergone gastric bypass 

surgery and, as a result, lost approximately 80 pounds. (Tr. 50). 

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when sitting in a recliner with a heating pad on her lower back, which she does five or six times 

a day. (Tr. 54). She can stand for 15 minutes at a time, sit for 30 minutes at a time, and walk 

approximately 1⁄2 block. (Tr. 53-54). She uses a cane, which was recommended by her physical 

therapist and prescribed by her physician. (Tr. 53, 143). She has difficulty lifting, squatting, 

bending, standing, reaching, walking, sitting, kneeling, and stair climbing. (Tr. 56, 61, 142). 

Barr testified that she has difficulty with memory and concentration, because of the 

numerous medications she takes. (Tr. 55, 58-59, 120). She takes at least one nap per day. (Tr. 

55). She does not sleep well at night and wakes every few hours due to pain. (Tr. 56, 138). She 

is able to drive and was certified by her physician for a permanent handicapped parking placard. 

(Tr. 56-57, 140, 422). She is able to perform some household chores, such as washing dishes, 

preparing meals, shopping for groceries (using an electric cart), and doing laundry. (Tr. 57-58, 

139-40). Although she has some difficulty putting on her socks and shoes, she can otherwise 

attend to her own personal care needs. (Tr. 138). She can lift five or ten pounds. (Tr. 57). She 

enjoys socializing with friends outside the home two or three times a week, attends church and 

her son’s sporting events, and goes out to dinner once a week. (Tr. 59, 141).3

2. Medical Evidence

The Court has thoroughly reviewed Barr’s medical record. In lieu of summarizing her 

medical history here, the Court will make references and provide citations to the record as 

necessary in its discussion of the parties’ arguments. 

3. Vocational Expert’s Testimony

Scott Silver testified as an independent vocational expert (“VE”) at the administrative 

hearing. (Tr. 62-65). The VE characterized Barr’s past relevant work as a bus attendant and 

 

3

 In a third party function report dated May 1, 2012, Barr’s mother, LaDonna Johnston, generally 

corroborated her daughter’s statements. (Tr. 129-36). 

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daycare worker as ranging from unskilled to semi-skilled in nature, and from light to medium in 

exertion. (Tr. 62). The ALJ asked the VE to imagine a claimant of Barr’s age, education, and 

work experience, who could perform unskilled, light work, with the following additional 

limitations: only occasional balancing, stooping, kneeling, crouching, crawling, and climbing 

ramps or stairs; no climbing ladders, ropes, or scaffolds, or operating foot controls; a sit/stand 

option is required, but exercising that option must not require her to be off task; and she must be 

able to use a cane to ambulate to and from the worksite. (Tr. 62). The VE testified that the 

hypothetical individual would not be capable of performing Barr’s past relevant work. (Tr. 62-

63). However, the VE testified that the hypothetical individual would be capable of performing 

the light jobs of office helper (3,400 jobs in the state of Michigan) and parking lot attendant 

(3,000 jobs), as well as the sedentary job of addresser (3,300 jobs). (Tr. 62-64). 

D. The ALJ’s Findings 

Following the five-step sequential analysis, the ALJ found that Barr is not disabled under 

the Act. At Step One, the ALJ found that Barr did not engage in substantial gainful activity 

between her alleged onset date (June 29, 2008) and her date last insured (September 30, 2009). 

(Tr. 32). At Step Two, the ALJ found that Barr has the severe impairments of degenerative disc 

disease of the lumbar spine, status post-rhizotomy, radiculopathy, restless leg syndrome, 

hypertension, and obesity. (Tr. 32-33). At Step Three, the ALJ found that Barr’s impairments, 

whether considered alone or in combination, do not meet or medically equal a listed impairment. 

(Tr. 33-34). 

The ALJ then assessed Barr’s residual functional capacity (“RFC”), concluding that she 

is capable of performing unskilled, light work, with the following additional limitations: only 

occasional balancing, stooping, kneeling, crouching, crawling, and climbing ramps or stairs; no 

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climbing ladders, ropes, or scaffolds, or operating foot controls; a sit/stand option is required, but 

exercising that option must not require her to be off task; and she must be able to use a cane to 

walk to and from the worksite. (Tr. 34-38). 

At Step Four, the ALJ determined that Barr is unable to perform her past relevant work. 

(Tr. 38). At Step Five, the ALJ concluded, based in part on the VE’s testimony, that Barr is 

capable of performing a significant number of jobs that exist in the national economy. (Tr. 38-

40). As a result, the ALJ concluded that Barr is not disabled under the Act. (Tr. 40). 

E. Standard of Review 

The District Court has jurisdiction to review the Commissioner’s final administrative 

decision pursuant to 42 U.S.C. §405(g). Judicial review under this statute is limited in that the 

court “must affirm the Commissioner’s conclusions absent a determination that the 

Commissioner has failed to apply the correct legal standard or has made findings of fact 

unsupported by substantial evidence in the record.” Longworth v. Comm’r of Soc. Sec., 402 F.3d 

591, 595 (6th Cir. 2005) (internal citations omitted); Rabbers v. Comm’r of Soc. Sec., 582 F.3d 

647, 654 (6th Cir. 2009) (“[I]f an agency has failed to adhere to its own procedures, we will not 

remand for further administrative proceedings unless the claimant has been prejudiced on the 

merits or deprived of substantial rights because of the agency’s procedural lapses.”) (internal 

quotations omitted). Substantial evidence is “more than a scintilla of evidence but less than a 

preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) 

(internal quotations omitted). In deciding whether substantial evidence supports the ALJ’s 

decision, the court does “not try the case de novo, resolve conflicts in evidence or decide 

questions of credibility.” Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Rogers, 486 

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F.3d at 247 (“It is of course for the ALJ, and not the reviewing court, to evaluate the credibility 

of witnesses, including that of the claimant.”). 

When reviewing the Commissioner’s factual findings, the court is limited to an 

examination of the record and must consider the record as a whole. Bass, 499 F.3d at 512-13; 

Wyatt v. Sec’y of Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). The court “may 

look to any evidence in the record, regardless of whether it has been cited by the Appeals 

Council,” or in this case, the ALJ. Heston, 245 F.3d at 535; Walker v. Sec’y of Health & Human 

Servs., 884 F.2d 241, 245 (6th Cir. 1989). There is no requirement, however, that either the ALJ 

or this court discuss every piece of evidence in the administrative record. See Kornecky v. 

Comm’r of Soc. Sec., 167 F. App’x 496, 508 (6th Cir. 2006) (“[A]n ALJ can consider all 

evidence without directly addressing in his written decision every piece of evidence submitted by 

a party.”) (internal quotations omitted). If the Commissioner’s decision is supported by 

substantial evidence, “it must be affirmed even if the reviewing court would decide the matter 

differently and even if substantial evidence also supports the opposite conclusion.” Cutlip v. 

Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (internal citations omitted);

Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (“if substantial evidence 

supports the ALJ’s decision, this Court defers to that finding ‘even if there is substantial 

evidence in the record that would have supported an opposite conclusion’”). 

F. Analysis

Barr argues that the ALJ erred in: (1) finding at Step Three that her impairments do not 

meet or medically equal Listing 1.04A; and (2) improperly discounting the August 2012 opinion 

of her treating physician, Dr. Richardson. (Doc. #15 at 17-29). Each of these arguments will be 

addressed in turn. 

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1. The ALJ’s Conclusion that Barr Does Not Have a Listing 

Level Impairment is Supported by Substantial Evidence 

Barr first challenges the ALJ’s conclusion at Step Three that her impairments, whether 

considered alone or in combination, do not meet or medically equal Listing 1.04 (disorders of the 

spine). (Doc. #15 at 17-25). 

 a. The ALJ’s Obligation at Step Three 

Barr bears the burden of proving that her impairments meet or medically equal a 

particular listing. See Buress v. Sec’y of Health & Human Servs., 835 F.2d 139, 140 (6th Cir. 

1987). The Listing of Impairments, located at Appendix 1 to Subpart P of the regulations, 

describes impairments the Social Security Administration considers to be “severe enough to 

prevent an individual from doing any gainful activity, regardless of his or her age, education, or 

work experience.” 20 C.F.R. §404.1525(a). In other words, a claimant who meets or medically 

equals the requirements of a listed impairment will be deemed conclusively disabled. See 

Reynolds v. Comm’r of Soc. Sec., 2011 WL 1228165, at *2 (6th Cir. Apr. 1, 2011). “A claimant 

must satisfy all of the criteria to meet the listing.” Rabbers, 582 F.3d at 653. 

In this case, the ALJ found, in relevant part, that Barr has the severe impairments of 

degenerative disc disease of the lumbar spine, status post-rhizotomy, and radiculopathy. (Tr. 32-

33). He then went on at Step Three to consider whether these impairments, alone or in 

combination, meet or medically equal a listed impairment. In doing so, the ALJ explicitly 

considered whether Barr’s impairments satisfied Listing 1.04’s requirements: 

Specifically regarding the requirements of listing 1.04, the medical evidence does 

not indicate that the claimant’s degenerative disc disease of the lumbar spine, 

status-post rhizotomy, and radiculopathy resulted in nerve root compression, 

spinal arachnoiditis, or lumbar spinal stenosis resulting in an inability to ambulate 

effectively. 

(Tr. 33-34). Barr now argues that the ALJ’s Step Three determination “neglects to properly 

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analyze or explain” why her impairments do not meet or medically equal Listing 1.04A, and 

instead merely consists of a “regurgitation” of a portion of the language of the Listing and a 

summary conclusion that she does not meet its criteria. (Doc. #15 at 18-19). The Court 

disagrees. 

Listing 1.04A contemplates disorders of the spine, including degenerative disc disease 

and spinal stenosis, which result in compromise of a nerve root or the spinal cord with: 

Evidence of nerve root compression characterized by neuro-anatomic 

distribution of pain, limitation of motion of the spine, motor loss (atrophy 

with associated muscle weakness or muscle weakness) accompanied by 

sensory or reflex loss and, if there is involvement of the lower back, 

positive straight-leg raising test (sitting and supine) . . . . 

20 C.F.R. Pt. 404, Subpt. P, App’x 1, §1.04A. As set forth above, the ALJ explicitly considered 

this Listing in his decision, concluding that Barr’s impairments fail to satisfy its criteria. (Tr. 33-

34). To the extent that Barr argues that the ALJ’s analysis was insufficient, or that he was 

required to explain his conclusions in greater detail, such an argument fails. 

It has been recognized that, “The Sixth Circuit has consistently rejected a heightened 

articulation standard, noting ... that the ALJ is under no obligation to spell out ‘every 

consideration that went into the step three determination’ or ‘the weight he gave each factor in 

his step three analysis,’ or to discuss every single impairment.” Staggs v. Astrue, 2011 WL 

3444014, at *3 (M.D. Tenn. Aug. 8, 2011) (quoting Bledsoe v. Barnhart, 165 F. App’x 408, 411 

(6th Cir. 2006)). The Staggs court further stated, “Nor is the procedure so legalistic that the 

requisite explanation and support must be located entirely within the section of the ALJ’s 

decision devoted specifically to step three; the court in Bledsoe implicitly endorsed the practice 

of searching the ALJ’s entire decision for statements supporting his step three analysis.” Staggs, 

supra, at *3 (citing Bledsoe, supra, at 411); see also Smith v. Comm’r of Soc. Sec., 2012 WL 

4897364, at *6 (E.D. Mich. Sept. 14, 2012). In this case, as discussed below, the plain language 

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of the ALJ’s decision, read in its entirety, makes clear that the ALJ thoroughly considered and 

discussed the evidence supporting his Step Three finding, and that his conclusion at Step Three is 

supported by substantial evidence. 

 b. Substantial Evidence Supports the ALJ’s Step Three Finding 

In her brief, Barr asserts that there is “ample evidence reasonably supporting a meeting or 

medically equaling of Listing 1.04(A).” (Doc. #15 at 20). A review of the evidence of record, 

however, indicates just the opposite. 

As the ALJ noted, Barr has a history of radiating neck and low back pain stemming from 

a motor vehicle accident that occurred on June 29, 2008. (Tr. 35, 316, 327). X-rays of her right 

shoulder and cervical spine taken at that time were negative. (Tr. 365-66). She presented to her 

treating physician, Stephen Richardson, D.O., on July 3, 2008, with complaints of shoulder, 

neck, and back pain. (Tr. 293). On examination, she had right-sided paraspinal muscle 

tenderness and a positive shoulder impingement sign on the right. (Tr. 294). At her next visit, 

on July 16, 2008, she continued to have paraspinal tenderness, bilateral shoulder tenderness, and 

shoulder pain with abduction. (Tr. 290-91). At a follow-up visit to Dr. Richardson on July 29, 

2008, similar observations were made on examination. (Tr. 285-86). During this period of time, 

Barr was undergoing physical therapy; by late-August 2008, she reported that her neck pain was 

“80% better,” but she was continuing to experience pain in her lumbar and thoracic spines. (Tr. 

282, 328). 

At a visit to Dr. Richardson on September 17, 2008, Barr complained of back pain 

without radiculopathy. (Tr. 276). On examination she had only bilateral lower and middle 

paraspinal muscle tenderness. (Id.). Dr. Richardson ordered a lumbar spine MRI, which was 

performed the next day, and revealed a “small central herniation at L5-S1 without impingement.” 

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(Tr. 337). Subsequently, he referred Barr to Andrea Tann, M.D., for injection therapy. (Tr. 275, 

350-51). Dr. Tann’s initial examination revealed point tenderness along Barr’s spine and pain in 

her left posterior superior iliac spine (“PSIS”), but she otherwise appeared normal, with negative 

straight leg-raising and intact strength, sensation, and gait. (Tr. 351). Dr. Tann administered a 

series of three epidural injections between October and December 2008. (Tr. 338, 341, 352-53). 

When Barr saw Dr. Richardson again, on October 14, 2008, she reported that a TENS 

unit had been helping her back pain. (Tr. 261). She continued to show no objective physical 

deficits other than paraspinal muscle tenderness. (Id.). An x-ray of Barr’s thoracic spine 

performed on October 22, 2008, showed only “[m]ild degenerative changes.” (Tr. 363-64). On 

October 27, 2008, at Dr. Richardson’s suggestion, Barr presented to John Maltese, M.D., for a 

consultative examination. (Tr. 183-84). She reported pain in her mid-back and low back, but 

indicated that her initial neck and shoulder pain had resolved. (Tr. 183). On examination, Barr 

had pain-free range of motion in her neck, shoulders, and hips, and a Spurling’s maneuver was 

negative for radicular symptoms. (Tr. 184). She had paraspinal tenderness, some SI joint 

tenderness, and discomfort with extension of the back. (Id.). However, her strength, sensation, 

reflexes, and gait were all normal, and she had a negative straight-leg raising test. (Id.). Dr. 

Maltese recommended an MRI of Barr’s thoracic spine and electrodiagnostic studies. (Id.). The 

MRI, which was performed on November 7, 2008, was negative for any herniated disc or cord 

compression. (Tr. 336). The November 2008 EMG revealed membrane irritability in the left 

lumbosacral paraspinal muscles and gastrocnemius, consistent with left S1 radiculopathy. (Tr. 

180-82, 235). 

During this same period of time, Barr also presented to John Karazim, M.D., for a lumbar 

and thoracic spine evaluation. (Tr. 172-77). At the examination, Barr sat uncomfortably but was 

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able to transfer from sitting to standing with some difficulty. (Tr. 174). She reported no pain on 

palpation, stood erect, and had a normal gait. (Id.). Her lumbar range of motion was restricted; 

she was able to walk with difficulty on her toes and heels; and she was unable to squat. (Tr. 

175). She had normal sensation in both legs, but straight-leg raising produced low back pain. 

(Id.). Dr. Karazim recommended physical therapy and characterized Barr’s prognosis as “good.” 

(Tr. 176-77). 

At a December 11, 2008 visit to Dr. Maltese, Barr reported that the “current therapy 

[epidural injections] is going quite well, and she is happy with her progress.” (Tr. 178). On 

examination, Barr had some paraspinal muscle and SI joint tenderness, but her gait was stable 

and her straight-leg raising test was negative. (Id.). Nevertheless, Dr. Maltese referred her to an 

orthopedic surgeon because “her progress is still slow.” (Id.). At follow-up visits to Dr. 

Richardson between January and July 2010 (well after Barr’s date last insured), he consistently 

found only paraspinal muscle tenderness (Tr. 191, 201, 214, 226, 230, 459, 468, 471) and, on 

occasion, mildly reduced flexion or extension of the lower spine (Tr. 191, 201, 214). 

As the ALJ noted, on April 27, 2009, Barr presented to another pain management 

specialist, Kevin Lee, M.D. (Tr. 35, 328-30). On examination, Barr had “exquisite tenderness” 

over the paraspinal area in the lumbar region bilaterally, significant worsening of back pain on 

extension, and a positive straight-leg raising test on the left. (Tr. 329). At the same time, she 

was able to flex forward and showed normal strength, muscle tone, and bulk; had grossly intact 

sensation; and had normal deep-tendon reflexes. (Id.). Dr. Lee reviewed Barr’s earlier MRI and 

EMG/nerve conduction studies and concluded that she “may eventually benefit from a lumbar 

facet rhizotomy procedure.” (Tr. 329-30). In the meantime, Dr. Lee ordered diagnostic lumbar 

facet blocks (performed on May 12, 2009) and a diagnostic lumbar discogram (performed on 

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May 19, 2009). (Tr. 330). The discogram showed “evidence of a disruption of the posterior 

annulus of the disc” at L5-S1. (Tr. 326). A follow-up CT scan of Barr’s lumbar spine performed 

on May 19, 2009, showed a mild broad-based disc bulge at L5-S1, which resulted in “minimal 

flattening [of] the anterior thecal sac which does not contribute to any central canal stenosis at 

this level.” (Tr. 324). In addition, “The neural foramina [were] widely patent at this level with 

the exiting nerves and nerve roots exiting [in the] usual fashion.” (Id.). 

On June 1, 2009, Barr told Dr. Lee had she had experienced “at least 45% relief” of her 

low back pain with the recent facet blocks. (Tr. 322). Dr. Lee indicated an impression of 

discogenic pain at L5-S1, along with left S1 radiculopathy, and recommended a lumbar facet 

rhizotomy procedure. (Id.). This procedure was performed on June 19, 2009, and provided 

“good relief.” (Tr. 318, 320-22).4

 According to a June 30, 2009 discharge note, Barr was 

experiencing positive results with physical therapy until her insurance coverage ran out. (Tr. 

300). Her prognosis was good and she was instructed to continue with a fitness program. (Id.). 

In February 2010, approximately four months after Barr’s date last insured, she returned 

to Dr. Lee complaining that she remained “disabled and unable to work,” with leg pain 

accounting for “80% of the pain that she is experiencing.” (Tr. 316). Based on the November 

2008 EMG/nerve studies showing S1 radiculopathy, Dr. Lee’s impression was that Barr “likely 

has pinching of the S1 nerve roots.” (Id.). He suggested that she might benefit from a “lumbar 

laminectomy procedure and discectomy to decompress the S1 nerve roots.”5 (Id.). 

The ALJ further noted that, on August 24, 2012, Dr. Richardson completed a “Physical 

Residual Functional Capacity Questionnaire,” in which he opined that, as of September 30, 2009, 

 

4

 In December 2009, after her date last insured, Barr underwent a right-sided rhizotomy, which 

provided less relief. (Tr. 316-19). 

5

 Barr testified that she elected not to undergo this procedure because Dr. Richardson advised 

against it. (Tr. 60-61). 

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Barr’s physical and mental symptoms were frequently severe enough to interfere with the 

attention and concentration needed to perform even simple work tasks, but that she might be 

capable of working in a low-stress situation. (Tr. 37, 414-17). He opined that Barr could walk 

less than one block; sit for 30 minutes at one time; and stand for 15 minutes at one time. (Tr. 

415). He also opined that she could sit, stand, or walk for a total of less than two hours in an 

eight-hour workday; needed to walk around every 20 minutes for five minutes at a time; required 

a sit/stand at will option; needed to take unscheduled breaks every 15 to 30 minutes; and required 

an assistive device to ambulate. (Tr. 416). Dr. Richardson opined that Barr could rarely lift up 

to 20 pounds and occasionally lift less than 10 pounds; could rarely stoop, crouch, or climb 

stairs; could never climb ladders; could occasionally perform all other postural activities; and 

could reach for only five percent of the workday. (Tr. 416-17). As objective support for his 

conclusions, Dr. Richardson cited Barr’s spinal tenderness, reduced flexion and extension due to 

pain, and 2/4+ patellar and Achilles reflexes.6

 (Tr. 414). 

As set forth above, in order for Barr to meet the criteria of Listing 1.04A, she must first 

show “[e]vidence of nerve root compression.” Critically, she has failed to do so here. Her 

September 2008 lumbar spine MRI showed a “small central herniation at L5-S1 without 

impingement.” (Tr. 337 (emphasis added)). Similarly, a November 2008 MRI of Barr’s thoracic 

spine was negative for any herniated disc or cord compression. (Tr. 336). And, a CT scan of 

Barr’s lumbar spine performed in May 2009 showed that the neural foramina at L5-S1 were 

 

6

 As the Commissioner points out, Dr. Richardson purportedly assessed Barr’s functioning as of 

September 30, 2009, her date last insured. (Doc. #18 at 11 (citing Tr. 65, 414)). However, Dr. 

Richardson’s treatment notes from that time period do not reflect clinical findings of reduced 

motion or 2/4+ patellar or Achilles reflexes. Specifically, on August 19, 2009, Dr. Richardson 

observed that Barr had spinal tenderness, but no other clinical abnormalities. (Tr. 478). And, on 

October 28, 2009, her spine was still tender, but she was neurologically intact, with normal 

strength, tone, major deep-tendon reflexes, and sensorium. (Tr. 475). 

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widely patent, “with the exiting nerves and nerve roots exiting [in the] usual fashion.” (Tr. 324). 

Where, as here, the objective medical evidence affirmatively shows that there is no nerve 

root compression, Barr cannot meet her burden at Step Three by relying on symptoms – such as 

radiating pain – that sometimes suggest nerve root compression. See Miller v. Comm’r of Soc. 

Sec., 848 F. Supp. 2d 694, 709 (E.D. Mich. 2011) (“An implication, based on radiating pain, is 

not enough to satisfy the Listing.”); see also Steagall v. Comm’r of Soc. Sec., 2009 WL 806634, 

at *5 (S.D. Ohio Mar. 25, 2009) (treating physician’s opinion that plaintiff met Listing 1.04A 

was insufficient where medical records stated there was no nerve root compression). Thus, 

where Barr has failed to offer evidence of nerve root compression, any error in the ALJ’s Step 

Three analysis is harmless.7

 See, e.g., Elkins v. Astrue, 442 F. App’x 406, 407 (10th Cir. 2011) 

(any error in ALJ’s Step Three analysis was harmless where the plaintiff “presented no evidence 

of nerve-root compression, one of the requirements of Listing 1.04(A)”); Hines v. Comm’r of 

Soc. Sec., 2014 WL 6390231, at *9 (S.D. Ohio Nov. 14, 2014) (“Here, there is no evidence of 

nerve root compression, and plaintiff does not meet the requirements of 1.04A as a result.”); 

Daniels-Richardson v. Comm’r of Soc. Sec., 2010 WL 6001600, at * 3 (E.D. Mich. Sept. 2, 

2010) (plaintiff did not meet Listing 1.04A where no evidence of nerve root compression). 

 

7

 The Court recognizes that, in February 2010 – more than four months after Barr’s date last 

insured – Dr. Lee opined that Barr “likely has pinching of the S1 nerve roots.” (Tr. 316). Dr. 

Lee appears to have reached this conclusion based on a review of the results of the November 

2008 EMG/nerve studies (which showed the presence of an S1 radiculopathy), as well as the 

September 2008 lumbar spine MRI (which showed a “small central herniation at L5-S1 without 

impingement”). (Tr. 316, 336-37). Given the fact that both Dr. Richardson and the physician 

who interpreted the MRI agreed that nerve root-impingement was not the source of Barr’s back 

pain (Tr. 260, 267, 337), as well as the other evidence discussed above, Dr. Lee’s somewhat 

equivocal diagnosis (“likely” has pinching of the nerve roots) does not constitute evidence of 

nerve root compression sufficient to satisfy Listing 1.04A. On the other hand, the two doctors’ 

specific negative findings as to nerve root impingement constitute substantial evidence in support 

of the ALJ’s conclusion as to Listing 1.04. See supra at 7; Cutlip, 25 F.3d at 286; Blakley, 581 

F.3d at 406. 

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Moreover, even if the Court were to find evidence of nerve root compression, Barr has 

not shown the requisite evidence of “motor loss” (atrophy with associated muscle weakness or 

muscle weakness) accompanied by sensory or reflex loss. See 20 C.F.R. Pt. 404, Subpt. P., App. 

1, Listing 1.04A. Indeed, Barr’s motor functioning (strength, bulk, tone, sensation, and reflexes) 

was consistently normal prior to her date last insured (Tr. 184, 214, 226, 235, 275, 329, 346, 351, 

388, 475, 478), which precludes a finding that she meets Listing 1.04A. See Lawson v. Comm’r 

of Soc. Sec., 192 F. App’x 521, 529-30 (6th Cir. 2006) (plaintiff’s failure to meet all of the “strict 

requirements” of Listing 1.04A was fatal to her claim). 

Having failed to produce evidence that she meets this Listing, Barr was required to 

present evidence that her impairment was equivalent to this (or any other) Listing. See Lusk v. 

Comm’r of Soc. Sec., 106 F. App’x 405, 411 (6th Cir. 2004). She failed to do so,8

 and the ALJ’s 

conclusion that she does not meet or medically equal a Listing is supported by substantial 

evidence as discussed above. 

2. The ALJ Gave “Good Reasons” for 

Discounting Dr. Richardson’s Opinion 

Barr also challenges the ALJ’s decision to give “little weight” to the August 2012 opinion 

of her treating physician, Dr. Richardson. (Doc. #15 at 25-29). In that opinion, Dr. Richardson 

opined that, as of September 30, 2009 (her date last insured), Barr’s physical and mental 

symptoms were frequently severe enough to interfere with the attention and concentration 

 

8

 Barr does identify evidence in the record indicative of a serious back impairment. (Doc. #15 at 

20-24). But that issue is not in dispute – indeed, at Step Two, the ALJ determined her back 

impairment to be “severe.” (Tr. 32). Rather, at Step Three, Barr was required to show that she 

met or medically equaled the applicable listing, and she clearly cannot do that simply by showing 

evidence of a severe impairment; to hold otherwise would be to eviscerate Step Three as a 

separate requirement. See Sullivan v. Zebley, 493 U.S. 521, 531 (1990) (holding that in order to 

establish medical equivalency, a claimant “must present medical findings equal in severity to all

the criteria for the one most similar listed impairment.”) (emphasis in original); see also 20 

C.F.R. §404.1526(a) (defining “medical equivalence” as a showing that an impairment “is at 

least equal in severity and duration to the criteria of any listed impairment.”). 

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needed to perform even simple work tasks, but that she might be capable of working in a lowstress situation; that she could walk less than one block, sit for 30 minutes at one time, and stand 

for 15 minutes at one time; that she could sit, stand, or walk for a total of less than two hours in 

an eight-hour workday; that she needed to walk around every 20 minutes for five minutes at a 

time, required a sit/stand at will option, needed to take unscheduled breaks every 15 to 30 

minutes, and required an assistive device to ambulate; that she could rarely lift up to 20 pounds 

and occasionally lift less than 10 pounds; and that she could rarely stoop, crouch, or climb stairs, 

could never climb ladders, could occasionally perform all other postural activities, and could 

reach for only five percent of the workday. (Tr. 414-17). Barr argues that the ALJ failed to give 

“good reasons” for discounting this opinion. 

The law is clear that an ALJ “‘must’ give a treating source opinion controlling weight if 

the treating source opinion is ‘well-supported by medically acceptable clinical and laboratory 

diagnostic techniques’ and is ‘not inconsistent with the other substantial evidence in [the] case 

record.’” Blakely, 581 F.3d at 406 (internal quotations omitted). While treating source opinions 

are entitled to controlling weight under these circumstances, it is “error to give an opinion 

controlling weight simply because it is the opinion of a treating source” unless it is wellsupported and consistent with the record as a whole. Soc. Sec. Rul. 96-2p, 1996 WL 374188, at 

*2 (July 2, 1996); see also Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) 

(“Treating physicians’ opinions are only given such deference when supported by objective 

medical evidence.”). If the ALJ declines to give a treating physician’s opinion controlling 

weight, he must document how much weight he gives it, considering a number of factors, 

including the “length of the treatment relationship and the frequency of examination, the nature 

and extent of the treatment relationship, supportability of the opinion, consistency of the opinion 

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with the record as a whole, and the specialization of the treating source.” Wilson v. Comm’r of 

Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (citing 20 C.F.R. §404.1527(c)(2) (ALJ must “give 

good reasons” for weight given to treating source opinion)). 

In this case, the ALJ considered Dr. Richardson’s August 2012 opinion and explained 

that it was entitled to “little weight” because: 

His own treatment notes do not support such a restrictive residual 

functional capacity as they consistently showed that [Barr] had paraspinal 

muscle tenderness and mildly reduced range of motion in her lumbar 

spine. Moreover, his opinion is not consistent with the record as a whole, 

which showed that [Barr] reported pain at a four and a two on a scale of 

one to ten. 

(Tr. 37) (internal citations omitted). Barr claims that the ALJ’s reasoning is “vague and 

conclusory” and that he has not articulated “good reasons” for rejecting Dr. Richardson’s 

opinion. (Doc. #15 at 27). The Court disagrees.9

Barr first challenges the ALJ’s reliance on mild objective findings (i.e., paraspinal muscle 

tenderness and mildly reduced range of motion) to discount Dr. Richardson’s opinion. (Doc. #15 

at 28). Specifically, Barr asserts that “the fact that [she] demonstrated paraspinal muscle 

tenderness and reduced range of motion is certainly no reason to discredit the most longitudinal 

opinion contained in the record.” (Id.). A fair reading of the ALJ’s opinion, however, reveals 

that the ALJ discounted Dr. Richardson’s opinion not because he documented tenderness and 

mildly reduced range of motion (which would tend to indicate at least some degree of physical 

limitation), but because these are the only supportive findings, and because they are inconsistent 

with other substantial record evidence. (Tr. 37). Indeed, as the ALJ noted, Dr. Richardson’s 

 

9

 The Court also rejects Barr’s argument (Doc. #19 at 6-7) that remand is required because the 

ALJ did not explicitly discuss certain discrepancies identified by the Commissioner. The mere 

fact that the Commissioner identified additional record evidence that allegedly supports the 

ALJ’s analysis does not undermine an otherwise valid analysis by the ALJ. This is precisely 

why courts hold that an ALJ “can consider all evidence without directly addressing in his written 

decision every piece of evidence submitted by a party.” Kornecky, 167 F. App’x at 508. 

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assessment of disabling limitations simply does not square with his own treatment notes, which 

contain relatively mild clinical findings, including normal gait, station, and posture; negative 

Romberg sign; intact cranial nerves; and normal strength, tone, major deep-tendon reflexes, and 

sensorium. (Tr. 35 (citing Tr. 213-14, 37; see also Tr. 235, 276, 475). 

Similarly, Barr argues that, in discounting Dr. Richardson’s opinion, the ALJ improperly 

relied on Barr’s “one-time report” of pain scores on a physical therapy discharge report in June 

2009. (Doc. #15 at 28). Barr claims that such “limited evidence bears no weight upon Dr. 

Richardson’s medical source opinion.” (Id.). As the Commissioner persuasively argues, 

however, Barr’s reduced pain level just a few months prior to her date last insured is relevant in 

evaluating Dr. Richardson’s opinion that she suffered from disabling pain through this date. 

(Doc. #18 at 25 (citing 20 C.F.R. §404.1527(c) (ALJs may consider “any factors” that tend to 

support or contradict the opinion)); see also Johnson v. Comm’r of Soc. Sec., 2013 WL 4799156, 

at *7 (E.D. Mich. Sept. 9, 2013) (plaintiff’s statements about pain to treatment providers were 

inconsistent with his allegations of disabling pain). If the ALJ had relied exclusively on Barr’s 

one-time reported pain scores in discounting Dr. Richardson’s opinion, Barr’s argument would 

be stronger. In this case, however, where the ALJ also relied on the fact that Dr. Richardson’s 

opinion was at odds with his own treatment notes from the relevant period of time, the ALJ’s 

decision to discount this opinion is supported by substantial evidence. 

For all of the above reasons, and upon an independent review of the entire record, the 

Court concludes that the ALJ’s decision is supported by substantial evidence. 

III. CONCLUSION 

For the foregoing reasons, the Court RECOMMENDS that the Commissioner’s Motion 

for Summary Judgment [18] be GRANTED, Barr’s Motion for Summary Judgment [15] be 

DENIED, and the ALJ’s decision be AFFIRMED. 

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Dated: July 8, 2015 s/David R. Grand 

Ann Arbor, Michigan DAVID R. GRAND 

 United States Magistrate Judge 

REVIEW

Either party to this action may object to and seek review of this Report and 

Recommendation, but must act within fourteen days of service of a copy hereof as provided for 

in 28 U.S.C. §636(b)(1) and Fed. R. Civ. P. 72(b)(2). Failure to file specific objections 

constitutes a waiver of any further right of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); 

Howard v. Sec’y of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 

(6th Cir. 1981). Filing objections which raise some issues but fail to raise others with specificity 

will not preserve all objections that party might have to this Report and Recommendation. See 

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). A copy of any objection must be served upon 

this Magistrate Judge. See E.D. Mich. L.R. 72.1(d)(2). 

Note these additional requirements at the direction of Judge Cleland: 

Each objection must be labeled as “Objection #1,” “Objection #2,” etc., and must 

specify precisely the provision of this Report and Recommendation to which it pertains. Not 

later than fourteen days after service of objections, the non-objecting party must file a 

response to the objections, specifically addressing each issue raised in the objections in the same 

order and labeled as “Response to Objection #1,” “Response to Objection #2,” etc. The response 

must be concise and proportionate in length and complexity to the objections, but there is 

otherwise no page limitation. 

 

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CERTIFICATE OF SERVICE

 The undersigned certifies that the foregoing document was served upon counsel of record 

and any unrepresented parties via the Court’s ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on July 8, 2015. 

 s/Eddrey O. Butts 

 EDDREY O. BUTTS 

 Case Manager 

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