UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GENELLE TRISCHLER,

Plaintiff, CASE NO. 2:14-CV-12867-PDB-PTM

v.

COMMISSIONER OF DISTRICT JUDGE PAUL D. BORMAN

SOCIAL SECURITY, MAGISTRATE JUDGE PATRICIA T. MORRIS

Defendant.

 /

MAGISTRATE JUDGE’S AMENDED REPORT AND RECOMMENDATION1

I. RECOMMENDATION

In light of the entire record in this case, I suggest that substantial evidence

supports the Commissioner’s determination that Plaintiff is not disabled. Accordingly, IT 

IS RECOMMENDED that Plaintiff’s Motion for Summary Judgment be DENIED, that 

Defendant’s Motion for Summary Judgment be GRANTED, and that the case be 

dismissed.

II. REPORT

A. Introduction and Procedural History

This case was referred to the undersigned to review the Commissioner’s decision 

denying Plaintiff’s claim for Disability Insurance Benefits (“DIB”). See 28 U.S.C. § 

 1 This Report was only amended to correct the first sentence’s statement of the conclusion to bring it in 

accord with the remainder of the Report.

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636(b)(1)(B); E.D. Mich. LR 72.1(b)(3). This matter is currently before the Court on 

cross-motions for summary judgment. (Docs. 12, 14.)

Genelle Trischler was thirty-seven years old at the time of the administrative 

hearing on January 30, 2013. (Transcript, Doc. 10 at 41, 139.) Plaintiff worked as an 

assistant manager in a retail store, a mental health technician, a receptionist, and a 

waitress before her alleged disability onset date. (Tr. at 153.) Plaintiff filed her claim for 

DIB on December 27, 2011, alleging that she became unable to work on September 21, 

2009. (Tr. at 139.) The claim was denied at the initial administrative stage. (Tr. at 91.) In 

denying Plaintiff’s claims, the Commissioner considered discogenic and degenerative 

disorders of the back, obesity, and other hyperalimentation. (Id.) On January 30, 2013, 

Plaintiff appeared before Administrative Law Judge (“ALJ”) Kevin J. Detherage, who 

considered the application for benefits de novo. (Tr. at 41-79.) In a decision dated March 

1, 2013, the ALJ found that Plaintiff was not disabled. (Tr. at 16-40.) 

On May 23, 2014, the ALJ’s decision became the final decision of the 

Commissioner, see Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004),

when the Appeals Council denied Plaintiff’s request for review. (Tr. at 1-6.) On July 22, 

2014, Plaintiff filed the instant suit, seeking judicial review of the Commissioner’s 

unfavorable decision. (Doc. 1.)

B. Standard of Review

The Social Security Administration has promulgated the following rules for the 

administration of disability benefits. See 20 C.F.R. §§ 401-422. First, a state agency, 

acting under the authority and supervision of the Administration, usually makes the initial 

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determination of whether a person is disabled. 20 C.F.R. § 404.1503; Bowen v. Yuckert, 

482 U.S. 137, 142 (1987). If denied, the claimant may seek review of the state’s decision 

through the Administration’s three-stage review process. Bowen, 482 U.S. at 142. In the 

first step of this process, the state’s disability determination is reconsidered de novo by 

the state agency. Id. Next the claimant has the right to a hearing before an ALJ. Id. 

Finally, “the claimant may seek review by the Appeals Council.” Id. Only after the 

Commissioner has issued a final administrative decision that is unfavorable may the

claimant file an action in federal district court. Id.; Mullen v. Bowen, 800 F.2d 535, 537 

(6th Cir. 1986) (en banc). 

This Court has original jurisdiction to review the Commissioner’s final 

administrative decisions under 42 U.S.C. § 405(g). This is a limited review where we 

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

Commissioner has failed to apply the correct legal standards 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) (quoting Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 

390 (6th Cir. 2004); see also Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 

1997).

C. The ALJ’s Five-Step Sequential Analysis

The “[c]laimant bears the burden of proving his [or her] entitlement to benefits.” 

Boyes v. Sec’y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994); accord 

Bartyzel v. Comm’r of Soc. Sec., 74 F. App’x 515, 524 (6th Cir. 2003). While, in general, 

the claimant “is responsible for providing the evidence” to make a residual functional 

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capacity (“RFC”) assessment, before a determination of not disabled is made, the 

Commissioner is “responsible for developing [a claimant’s] complete medical history, 

including arranging for a consultative examination[] if necessary.” 20 C.F.R. § 

404.1545(a)(3).

Title II, 42 U.S.C. §§ 401-434, provides DIB to qualifying wage earners who 

become disabled prior to the expiration of their insured status; Title XVI, 42 U.S.C. §§ 

1381-1385, provides Supplemental Security Income (“SSI”) to poverty-stricken adults 

and children who become disabled. F. Bloch, Federal Disability Law and Practice § 1.1 

(1984). “DIB and SSI are available only for those who have a ‘disability.’” Colvin v. 

Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). “Disability” means:

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. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. § 416.905(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.

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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 

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

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

experience, benefits are denied.

20 C.F.R. §§ 404.1520, 416.920; see also Heston v.Comm’r of Soc. Sec., 245 F.3d 528, 

534 (6th Cir. 2001). “If the Commissioner makes a dispositive finding at any point in the 

five-step process, the review terminates.” Colvin, 475 F.3d at 730.

“Through step four, the claimant bears the burden of proving the existence and 

severity of limitations caused by” an impairment that precludes performance of past 

relevant work. Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003) (cited 

with approval in Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 540 (6th Cir. 2007)). If the 

analysis reaches step five, the burden shifts to the Commissioner to show that “other jobs 

in significant numbers exist in the national economy that [the claimant] could perform 

given [his or] her RFC and considering relevant vocational factors.” Rogers v. Comm’r of 

Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (citing 20 C.F.R. §§ 416.920(a)(4)(v), 

416.920(a)(4)(g)); see also Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 

2006).

D. The ALJ’s Findings

The ALJ applied the five-step disability analysis to Plaintiff’s claim and found at 

Step One that Plaintiff met the insured status requirements through June 30, 2015, and 

had not engaged in substantial gainful activity since September 20, 2009, the alleged 

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onset date. (Tr. at 21.) At Step Two, he found that Plaintiff’s conditions of “degenerative 

disc disease, obesity, depression, cervical spondylosis, right lower extremity peripheral 

polyneuropathy, bilateral radiculopathy, and right foot pain were “severe” within the 

meaning of 20 C.F.R. § 404.1520 and § 416.920. (Id.) At Step Three, he found that 

Plaintiff did not have an impairment or combination of impairments that met or was the 

medical equivalent of a listing in the regulations. (Tr. at 22-24.) At Step Four, he found 

that Plaintiff could perform light, a limited range of unskilled and was unable to perform 

any past relevant work. (Tr. at 24-25, 34.) He also found that Plaintiff was thirty-three

years old on the alleged onset date, putting her into the “younger individual” category.

(Tr. at 64.) At Step Five the ALJ found that, considering Plaintiff’s age, education, work 

experience, and RFC, Plaintiff could perform a significant number of jobs in the national 

economy, and therefore she was not disabled. (Tr. at 34-35.)

E. Administrative Record

1. Medical History

On September 20, 2009, Plaintiff was injured in a high speed motor vehicle 

collision. (Tr. at 240-43.) Her ankle was placed in a temporary splint and she was placed 

in a cervical collar and brought to Covenant HealthCare by ambulance. (Tr. at 350-53.) 

An x-ray of Plaintiff’s spine showed “[m]ild degenerative disk disease at the C5-C6 level 

and “[n]o loss of alignment of the cervical spine [was] seen in the neutral, flexion and 

extension position.” (Tr. at 223.) A CT of the right ankle showed 

(1) [c]omminuted and minimally displaced fracture of the medial 

malleolus. 

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(2) [s]mall avulsion fracture at the inferior margin of the 

sustentaculum tali. 

(3) [s]uspected undisplaced hairline fracture along the medial aspect 

of the navicular.

(4) [e]xtensive circumferential soft tissue edema in the ankle and 

foot.

(Tr. at 224-25.) A CT scan of the chest, abdomen, and pelvis showed “[n]o evidence of 

acute traumatic injury,” cholelithiasis, and left nephrolithiasis. (Tr. at 229.) A CT of the 

head was normal. (Tr. at 231.) A CT scan of the cervical spine showed no evidence of 

fractures and “[q]uestionable soft tissue density overlying the sternocleidomastoid” so 

that hemorrhage and contusion injury could not be ruled out. (Tr. at 232.) An x-ray of the 

right ankle showed a “[n]ondisplaced medial malleolar fracture.” (Tr. at 234.) An x-ray of 

the lower leg showed a “[f]racture involving the medial mealleolus and the base of the 

5th metatarsal bone” and “[m]inimal distortion of the ankle mortise.” (Tr. at 235.)

Plaintiff was assessed with “[m]ultiple right foot and ankle fractures.” (Tr. at 241.) She 

was also diagnosed with an acute concussion and an acute contusion to the neck with a 

possible carotid injury. (Tr. at 353.) She was “placed in a well-padded posterior fiberglass 

splint,” and was advised to return in about a week for possible casting. (Tr. at 241.) She 

was advised to remain non-weightbearing, and was prescribed a walker and Percocet. 

(Id.)

On October 19, 2009 Plaintiff transitioned into a CAM boot (Tr. at 561), and she 

continued using the boot and bearing weight as tolerated until January 2010. (Tr. at 549.) 

By May 11, 2010, Plaintiff was ambulating independently and using an “Aircast sport 

brace” on her right ankle. (Id.) 

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A September 23, 2009 note from Saginaw Valley Bone and Joint Center reads:

P[atient] requests prescriptions for lift chair recliner, wheelchair, 

wheelchair ramp, toilet seat riser, [and] shower bar, stating her insurance 

told her ‘sky’s the limit’ . . . . P[atient] currently has a walker and a roll 

about walker which she states will not roll over her carpeting. P[atient] 

states she has not been in contact with her case manager at State Farm to 

approve these items yet but her home medical agency . . . has given her 

ideas and brochures. [I] instructed P[atient] while reimbursement may be 

‘sky’s the limit,’ physician has responsibility of prescribing what is 

medically necessary only.

(Tr. at 571.) Another note from the same day in the same handwriting reads,

[I] received call from Karen identifying herself as p[atient]’s case manager 

stating, “when I say sky’s the limit, that’s what I mean,” I will be providing 

a list and if those things are not prescribed then we will change doctors.” 

Karen then stated “you upset my daughter.” Karen then identified “herself 

as p[atient]’s parent and case manager and disconnected phone.” 

(Id.) 

Plaintiff received physical therapy from Hills & Dales General Hospital Center for 

Rehabilitation from December 16, 2009 to March 5, 2010. (Tr. at 247-349.) Most of the 

notes from these therapy sessions are illegible. (Id.) As of April 16, 2010, Plaintiff 

reported that she was about fifty percent better and the physical therapist opined that 

Plaintiff had “plateaued” and would not benefit from any more services. (Tr. at 258.)

On May 13, 2010, Plaintiff underwent a neuropsychological evaluation by Dr. 

William MacInnes at MidMichigan Neuropsychology Associates. (Tr. at 402-17.) She 

was referred because of her neck injury and symptoms of dizziness and nausea. (Id.) 

Plaintiff stated that she did not feel that her focus had been hindered by the accident and 

that her mind felt like it was “all there.” (Id.) Pain frequently kept Plaintiff up at night, 

she had “brash, vivid nightmares,” and she snored when she slept. (Id.) She denied a 

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history of learning disabilities or attention deficit disorder. (Id.) Plaintiff enjoyed 

“camping in the summer, going for . . . walks, shopping, and scrapbooking.” (Id.) 

Dr. MacInnes administered a battery of screening procedures. (Tr. at 403.)

Throughout the testing, Plaintiff “was friendly, talkative, cooperative, and appeared to 

give a genuine effort on all tasks.” (Tr. at 404.) Instructions occasionally had to be 

repeated or elaborated upon before Plaintiff fully understood them. (Id.) Dr. MacInnes 

made the following summary and recommendations:

[Plaintiff’s] performance on the neuropsychological evaluation [was] 

generally within normal limits for an individual her age. She [was] not 

experiencing significant cognitive deficits as a result of her accident; 

however, she d[id] appear to have a chronic pain disorder, which [was] 

having a negative impact on her mood and sleep hygiene. [Plaintiff was] 

reporting significant increases in her level of apathy; likewise her mother 

note[d] significant increases in her level of apathy and disinhibition. [Dr. 

MacInnes] suspect[ed] that her subjective occasional cognitive 

difficulties [we]re related to her sleep deprivation and disruption, chronic 

pain, and evolving mood disorder. [Plaintiff was] struggling emotionally 

with the fact she ha[d] not improved as much as she would have liked. 

[Dr. MacInnes] would strongly urge her to begin some individual 

counselling and/or group counselling regarding the psychological effects 

of chronic pain. . . . [Plaintiff] may also be a good candidate for the use of 

an energizing antidepressant medication [such as Lexapro]. . . . Likewise, 

[Plaintiff] may benefit from some alternative and/or additional therapies 

to work on her pain problems such as water aerobics, possibly massage 

therapy, etc. She does seem to be a willing candidate for additional 

therapy and [he was] optimistic she c[ould] benefit from these therapies.

(Tr. at 406.) His diagnostic impression was “1. Chronic pain disorder secondary to 

injuries from automobile accident. 2. Sleep disruption secondary to chronic pain. [And] 3. 

Organic mood disorder secondary to chronic pain and sleep disruption.” (Tr. at 407.) 

Plaintiff returned to MidMichigan for a few individual psychotherapy sessions in 

May and June 2010 and saw limited license psychologist Zigmond A. Kozicki. (Tr. at 

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409-12, 623-25.) He noted her “borderline” depression and vaguely observed, or perhaps 

recorded her self-report, that she “had some trouble thinking since the accident.” (Tr. at 

409.) She wore an ankle brace to her June 18, 2010 appointment. (Tr. at 412.) 

A July 30, 2010 MRI of the cervical spine showed “[d]isc ostcophyte complex 

centrally causing slight compression of thecal sac at level C5-C6.” (Tr. at 474-75.) An 

August 6, 2010 MRI of Plaintiff’s right ankle showed: (1) an “[i]rregularity of the 

articular surface of the talus on the medial side adjacent to the medial malleolus, likely 

secondary to early ostcoarthritis or due to chronic stress. No osteochondral fracture is 

seen. No loose fragments are seen in the ankle. No effusion is seen in the ankle and 

subtalar joints”; and (2) “marrow edema in the cuboid and base of the fifth metatarsal on 

either side of the tarsometatarsal joint. There is also mild edema surrounding the 

peroneus longus tendon at this level. This part of the foot is not included in the field-ofview as the study is limited to the ankle exam.” (Tr. at 436-37.) It was noted that Plaintiff 

had problems remaining still during the scanning “resulting in motion artifacts.” (Tr. at 

472.)

On November 19, 2010, Plaintiff received an independent medical evaluation for 

her right ankle from Dr. Jeffrey Lawley. (Tr. at 440-51.) She was five foot, nine inches 

tall and weighed 397 pounds. (Id.) She was wearing an ankle brace “on a nearly full-time 

basis.” (Id.) She complained of “frequent pain and stiffness involving her right foot and 

ankle as well as her shoulder,” which typically ranked as a five on a scale of one to ten. 

(Id.) She did not think she could stand or walk for more than twenty to thirty minutes 

before she would need to sit down and rest. (Id.) Her foot was almost always swollen, 

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which was aggravated by standing or walking. (Id.) Her neck pain was just as intense as 

her right foot pain. (Id.) Surprisingly, sitting aggravated her neck pain. (Id.) Ice, heat, and 

pain medications provided her temporary relief from her neck pain. (Id.) Plaintiff had full 

range of motion in all three planes on her neck. (Id.) “She had full active plantar flexion 

of her ankle; however, dorsiflexion was to -5 degrees.” (Id.) She had “full subtalar joint 

range of motion with both inversion and eversion.” (Id.) She “ambulated with a 

noticeable limp,” and had “no difficulty toe walking; however, she did complain of 

difficulty with heel walking on her right side because of limited dorsiflexion.” (Tr. at 

445.) After reviewing her medical records and radiology reports, Dr. Lawley diagnosed 

her as follows:

1. Mild cervical spondylosis without neurological deficit, pre-existent condition.

2. Healed medial malleolus fracture right ankle with slight loss of terminal 

dorsiflexion.

3. Mild degenerative joint disease right ankle, pre-existent condition.

(Tr. at 445.) 

Dr. Lawley opined that Plaintiff was not in need of any active medical treatment 

for her neck. (Tr. at 446.) She had full active range of motion, “a negative Spurling’s 

maneuver, as well as intact neurological status,” and her “x-rays showed minimal 

degenerative changes in her mid cervical spine . . . .” (Id.) He further opined that 

Plaintiff could return to work “without restrictions or limitations for her neck.” (Id.) With 

regard to Plaintiff’s right foot and ankle, he found that Plaintiff had “a slight loss of 

terminal dorsiflexion, which has failed to improve with the treatment she has received to 

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date.” (Tr. at 447.) He recommended “aggressive home exercise program as well as the 

use of a dynamic splint before considering surgical options as recommended by Dr. 

Danielle Duncan.” (Id.) He reasoned that she only had “5 degree loss of dorsiflexion,”

and he did not consider that significant enough to merit surgery. (Id.) He opined that 

Plaintiff was capable of working with restrictions for her right foot and ankle—she would 

need to avoid continuous standing or walking, would not be able to climb, and would be 

able to lift no more than twenty pounds.” (Id.) He also said “If her right ankle 

dorsiflexion does not improve with this conservative treatment, then I would suggest an 

Achilles tendon lengthening procedure as recommended by Dr. Duncan.” (Id.) He also 

opined that Plaintiff had not “reached maximum medical improvement regarding her 

right foot/ankle injuries.” (Id.)

Plaintiff saw Dr. Farruch Anwar from September 20, 2009 to January 5, 2011. (Tr. 

at 452-500.) On May 16, 2011 Plaintiff was progressing well overall, although she still 

had pain in her right ankle. (Tr. at 485-89.) Her neck had “significantly improved.” (Id.)

Dr. Anwar said that “[h]er functional capacity remain[ed] limited which appeared 

multifactorial related to patient’s body aches and pains, depression and her weight.” (Id.) 

Upon examination on August 23, 2011, Plaintiff’s right ankle did not show any redness, 

swelling, or discoloration. (Tr. at 483-84.) Dr. Anwar’s impression was “1. Chronic right 

ankle pain. 2. Automobile accident. 3. Essential hypertension. 4. Anxiety and 

depression.” (Id.) He refilled her Cymbalta and Vicodin prescriptions. (Id.)

Plaintiff was treated at Saginaw Valley Bone and Joint Center from September 23, 

2009 to September 27, 2011. (Tr. at 533-74.) On May 11, 2010, Dr. Duncan was not 

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convinced that the right ankle fracture had completely healed; she recommended Plaintiff 

use a brace with a lace-up shoe, crutch or can in her opposite hand, and to bear weight on 

her right ankle as tolerated. (Tr. at 548.) On May 19, 2011, Dr. Duncan recommended 

Plaintiff “consider ankle arthroscopy and Achilles lengthening” surgery. (Tr. at 535.) 

However, Dr. Duncan noted that she had not considered a neurological diagnosis of 

reflex sympathetic dystrophy/complex regional pain syndrome (“RSD/CRPS”) before, 

and if Plaintiff did end up with such a diagnosis, any surgical intervention could increase 

her symptoms. (Tr. at 535-36.)

As of September 27, 2011 Plaintiff continued to wear an ankle brace for support. 

(Tr. at 533.) She was walking for exercise and attempting to lose weight. (Id.) There was 

mild ankle swelling and moderate tenderness anteriorly, but no numbness or 

hypersensitivity in her right foot or ankle. (Id.) At this appointment, Dr. Duncan had 

reconsidered her surgical intervention advice because she now believed RSD/CRPS was 

likely, and therefore that “bracing [was] her best option.” (Tr. at 533.) She noted that 

Plaintiff’s “footwear is showing significant wear.” (Tr. at 533.) Dr. Duncan noted that 

elevation of her right leg helped reduce swelling. (Tr. at 535.) 

Dr. Anwar referred Plaintiff to Dr. Karim Fram for a neurological evaluation, 

which was conducted on March 22, 2011. (Tr. at 583-85.) She complained about neck 

pain, back pain, leg pain, right ankle pain, problems sleeping because of pain, and 

headaches. (Id.) Upon examination she had tenderness over her lower cervical spine; 

tenderness in the lower lumbar spine; she was alert and oriented times three; her speech 

was fluent; her judgment, insight, and perception were normal; and her recent and remote 

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memory was normal. (Id.) There was limited dorsiflextion in her right foot, she had 

“decreased sensation to pinprick and light touch in the right foot and the distal part of the 

right leg,” her gait was independent, she was unable to walk on her right heal, her tandem 

gait was impaired, and the Romberg test was negative. (Id.) 

Dr. Fram’s impression was “[c]losed head injury with post-traumatic headaches 

and post-concussion syndrome,” and “[t]raumatic injury of the right lower extremity and 

right foot with swelling consistent with probable chronic regional pain syndrome (reflex 

sympathetic dystrophy) of the right foot.” (Id.) He also found Plaintiff’s medical record 

was consistent with “[b]ilateral S1 radiculopathy” and “[r]ight lower extremity peripheral 

polyneuropathy.” (Id.) He found her neck pain was “probably secondary to cervical strain 

and possible radiculopathy.” (Id.) He started Plaintiff on Neurontin and she was given

instructions for at home neck, lower back, and muscle strengthening exercises, including 

daily walks as tolerated. (Id.)

Plaintiff went to Covenant Healthcare on April 26, 2011 for a follow up visit with 

Dr. Fram. (Tr. at 243-44.) She continued to have problems with intermittent headaches, 

but they had decreased with chiropractic treatment, she still had neck pain and stiffness 

with pain radiating to the right shoulder, and her right leg pain had not gotten any better. 

(Id.) The pain in her right foot became worse with mobility. (Id.) She was given a sciatic 

nerve block. (Id.) She was advised to continue neck, lower back, and muscle 

strengthening exercises at home, including daily walks as she was able to tolerate them. 

(Id.) She was to continue taking Neurontin. (Id.)

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On May 9, 2011, Plaintiff had a foot and ankle bone scan. (Tr. at 501.) The 

impression was “[g]eneralized increased activity in the right midfoot and ankle and 

possible reflex sympathetic dystrophy cannot be excluded” and “[f]ocus of increased 

activity in the lateral right foot is more suggestive of possible trauma or arthritic changes 

and plain film radiographs are recommended.” (Id.) 

On August 30, 2011, Plaintiff followed up with Dr. Fram. (Tr. at 577-79.) The 

pain in her foot had not changed. (Id.) Her mental status examination was normal. (Id.) 

Her gait was independent but unsteady, she was unable to walk on the right heel, and her 

tandem gait was impaired. (Id.) On January 6, 2012, Plaintiff had another follow up visit 

with Dr. Fram. (Tr. 574-76.) She reported her headaches were intermittent but improving 

with chiropractic visits. (Id.) Her neck pain radiated into her right shoulder and increased 

with activity. (Id.) Her balance was poor because of her pain. (Id.) She continued to 

experience numbness and tingling in her foot. (Id.) She was alert and oriented times 

three, her speech was fluent, and her recent and remote memory function was normal. 

(Id.) 

On May 24, 2011, Plaintiff saw Dr. Frank Greiffenstein for a neuropsychological 

consultation. (Tr. at 507-18.) She was five foot, nine inches tall and weighed 413 pounds. 

(Tr. at 512.) “She ambulated with a steady, narrow-based, and brisk gait. . . . I did not 

observe any physical distress while walking or sitting. I also did not observe any 

exaggerated pain behaviors.” (Id.) “Her affect was bright but shallow. She seemed to 

speak with great relish about her many somatic symptoms. Her bright affect was 

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incongruent with her reported physical disability.” (Id.) Dr. Greiffenstein was “unable to 

replicate Dr. MacInnes’ finding of mildly weak grip strength.” (Tr. at 514.) 

After reviewing Plaintiff’s medical records and administering several tests, Dr. 

Greiffenstein had the following impressions. He did not find any grounds for the 

conclusion that she sustained an “acute concussion” after the car accident on September 

20, 2009. (Tr. at 515.) His findings supported “normal to superior memory and learning, 

average intelligence with commensurate academic achievement, normal psychomotor 

speed and vigilance, and normal to excellent cognitive skills to testing and interview.” 

(Id.) He found “no objective evidence for cognitive impairment, even though [Plaintiff] 

reports widespread cognitive concerns on a subjective basis.” (Id.) The clinical 

psychological component of his assessment “show[ed] that emotional factors probably 

explain[ed] her cognitive complaints. Interview and personality testing show[ed] strongly 

held illness conviction, overstatement of disability and physical dysfunction, pain 

sensitivity, feelings of inadequacy and inefficacy, and definite neuroticism.” (Id.) 

On September 13, 2011, Plaintiff received an independent medical examination 

from Dr. David J. Spiteri. (Tr. at 519-31.) She was bearing full weight on her right leg 

and she continued to wear an ankle brace. (Tr. at 520.) She was also ambulating without a 

cane because she did not like using it. (Id.) The range of motion of her cervical spine was 

intact. (Tr. at 523.) She was able to “evert and invert bilaterally and symmetrically 

without any significant discomfort.” (Id.) She was limited “in some dorsiflexion 

involving the right foot about -5 degrees compared to that of the left, although her range 

of motion of the left with dorsiflexion also seem[ed] to be somewhat restricted.” (Id.) 

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There was “no significant pain with palpitation of either ankle joint. No gross instability 

[was] appreciated on testing of either ankle joint. No guarding with palpitation of the 

ankle joint. [And] [t]here [was] no evidence of any sensitivity to light or medium touch in 

the region to suggest chronic regional pain syndrome.” (Tr. at 523-24.) 

After Dr. Spiteri reviewed Plaintiff’s medical records, he concluded that there was 

no “clinical evidence that she has experienced” RSD/CRPS. (Tr. at 528.) He noted that 

two months after the September 20, 2009 accident Plaintiff was allowed to bear weight as 

tolerated on her right ankle. (Tr. at 529.) He did not believe that the “slight loss of 

dorsiflexion at the right ankle relative to the left side” resulted in “any significant 

disability or loss of function.” (Id.) He pointed to the fact that she was ambulating 

without any assistive devices and was bearing weight as tolerated. (Id.) He also opined 

that “surgery would not change her current status.” (Id.) In his opinion, Plaintiff would 

have needed assistance “with laundry, meal preparation, as well as yard work-type 

activities up until April 2010.” (Tr. at 530.) 

On January 16, 2012, Plaintiff followed up with Dr. Anwar. (Tr. at 720-21.) His 

impression from this visit was “1. Chronic pain/myofascial pain syndrome. 2. Obesity. 3. 

History of generalized anxiety and depression. 4. Rule out sleep apnea.” (Id.) On April 

30, 2012, Dr. Anwar added fibromyalgia to the list. (Tr. at 721.) On January 30, 2012, 

Plaintiff had an MRI of the lumbar spine. (Tr. at 589-90.) The impression was a “small 

left paracentral disc protrusion at L3-4 and a “mild right foraminal stenosis” at L4-5 and 

L5-S1. (Id.) 

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On May 23, 2012, Dr. Herbert Kushner completed a medical evaluation for 

Plaintiff. (Tr. at 593.) He concluded that RSD/CRPS was not a medically determinable 

impairment; her improving headaches were not severe; her concussion was not a 

medically determinable impairment; and that her obesity, foot, and ankle problems were 

severe impairments. (Id.) He also stated that Plaintiff’s activities of daily living were very 

complete, which was inconsistent with the alleged severity of the pain. (Id.)

Dr. Duncan submitted a medical needs form for the Michigan Department of 

Human Services on March 1, 2012. (Tr. at 704-05.) Aside from listing her diagnoses, the 

form was blank. (Id.) On March 27, 2012, Plaintiff followed up with Dr. Duncan at 

Saginaw Valley Bone and Joint Center. (Tr. at 693-94.) At this time she was taking 

Cymbalta for depression and pain and Vicodin twice a day for pain. (Id.) Her ankle pain 

seemed to be getting worse in the last few weeks, so she asked about the possibility of 

being prescribed a cane and possibly a new brace. (Id.) Plaintiff was prescribed a cane, to 

be used “as needed.” (Id.) 

On April 16, 2012, Dr. Anwar completed a medical needs assessment of Plaintiff. 

(Tr. at 603-07.) He said that she had RSD/CRPS, chronic pain, and depression. (Id.) He 

also asserted that she would not be able to work any job and that her symptoms were 

“poss[ibly] life long.” (Id.) He indicated that she could lift or carry ten pounds 

occasionally and could never carry twenty five pounds.2 (Id.) Plaintiff could stand or 

 2 Dr. Anwar placed x’s indicating that Plaintiff could frequently carry 25 pounds and 50 pounds, but these 

appear to be crossed out. (Tr. at 603.)

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walk at least two hours in an eight hour workday.3 (Id.) Plaintiff would need assistance 

with mobility, dressing, shopping, laundry, and housework. (Id.) Dr. Anwar indicated that 

he was Plaintiff’s primary medical provider. (Id.) 

On, May 23, 2012, Dr. Herbert Kushner completed an RFC assessment of 

Plaintiff. (Tr. at 594-602.) His primary diagnosis was obesity and his secondary diagnosis 

was residual right foot/ankle fracture. (Id.) She could occasionally lift and/or carry up to 

twenty pounds, frequently lift and/or carry up to ten pounds, stand and/or walk for a total 

of at least two hours in an eight-hour workday, and sit for a total of about six hours in an 

eight-hour workday. (Id.) Her ability to push and/or pull was unlimited. (Id.) She could 

never climb ladders, ropes, or scaffolds; she could occasionally climb ramps/stairs, 

balance, stoop, kneel, crouch, and crawl. (Id.) No manipulative, visual, or communicative 

limitations were established. (Id.) She was to avoid concentrated exposure to work 

hazards, such as machinery and heights. (Id.) He noted that RSD/CRPS was never 

established. (Id.)

Plaintiff followed up with Dr. Fram on April 17 and August 24, 2012. (Tr. at 706-

15.) Her headaches, neck pain, and lower back pain were intermittent but improving with 

chiropractic treatment. (Id.) Her pain was not being controlled with her pain medications. 

 3 Dr. Anwar also marked that Plaintiff could “[s]tand and/or walk less than 2 hours” during the workday. 

(Tr. at 603.) This potentially contradicts his selection of the next listed option, in which he indicated she could 

perform these tasks at least two hours per day. It seems that he intended to select each ascending option until 

reaching what he felt was Plaintiff’s maximum standing and sitting ability. The boxes for “Lifting/Carrying” are 

selected in the same manner: he checked both that she could lift less than ten pounds and that she could lift ten 

pounds, and he marked that she could never carry over twenty-five pounds and that she could never lift over fifty 

pounds. (Id.)

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(Id.) Treatment options “were discussed to include paravertebral nerve blocks.” (Id.) A 

sciatic nerve block was administered on August 24. (Id.) 

Dr. Fram completed an RFC assessment of Plaintiff on April 18, 2012. (Tr. at 748-

49.) He diagnosed her with neck pain “secondary to disc protrusion,” post-traumatic 

headaches, “back pain “secondary to radiculopathy,” and a fourth item that is illegible. 

(Tr. at 748.) He did not think Plaintiff would be able to work—he was unsure for how 

long. (Id.) He said she could only lift less than ten pounds frequently, could only 

occasionally lift ten pounds, and could never lift greater than twenty-five pounds. (Id.) 

She could sit and stand “at least two hours in an eight hour workday. (Id.)

2. Adult Function Reports

On January 10, 2012, Plaintiff completed an adult function report. (Tr. at 178-88.) 

Her conditions limited her ability to work as follows: 

Pain, swelling, stiffness in my right foot and ankle increasing when I am 

on feet. neck pain and muscle spasms in my back weaken without 

support. Headaches cause dizziness, nausea, vomiting. I have limited 

flexibility in my right foot, [A]chilles tendon, while any activity causes 

shooting pains from foot to lower back. Depression and anxiety create 

lack of focus/motivation mostly form pain. 

(Tr. at 178 (sic throughout).) On a typical day she would “wake up and prepare breakfast 

and cold lunches for [her] daughters,” sometimes she drove them to school, do “light 

housekeeping, rest, do paperwork, pay bills, watch tv, take a nap, maybe shower,” run 

errands like grocery shopping or doctor appointments; after her daughters returned from 

school she would help them with their homework, make dinner, do laundry, watch 

television, and go to bed. (Tr. at 179.) With the help of her daughters and sometimes 

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from her mother, she also provided care for one dog and two birds. (Id.) Before her 

injury she was able to “go up and down stairs without difficulty,” walk without pain, 

work, lift heavier objects, sleep through the night, and be more social. (Id.) Plaintiff only 

cooked dinner a couple days a week. (Tr. at 180.) 

Plaintiff’s pain interfered with her sleep and she had nightmares that caused her to 

wake up screaming. (Tr. at 179.) She did not have problems with personal care and did 

not need reminders to take her medicine. (Id.) Plaintiff washed clothes and dishes, swept, 

mopped, dusted, and vacuumed; she spent about an hour to an hour and fifteen minutes a 

day doing housework. (Tr. at 180.) She needed help putting away laundry, going 

upstairs, moving out couches, washing the walls, mowing, raking, shoveling snow, and 

cleaning upstairs. (Id.) Some days, however, Plaintiff would not do housework because 

she would be in too much pain or be too depressed. (Tr. at 181.) 

Plaintiff only reported going outside about two times a week: “[m]ost days I don’t 

go anywhere[.] I don’t like to drive [because] it causes anxiety. I don’t really want to be 

in a crowd.” (Id.) Her hobbies included watching television, couponing, spending time 

on Facebook, crosswords, scrabble, and camping. (Tr. at 182.) Before her injury, she also 

enjoyed playing tennis, walking, going to parks, and fishing. (Id.) She indicated that her 

condition caused problems lifting, squatting, bending, standing, reaching, walking sitting, 

kneeling, stair climbing, remembering, completing tasks, and concentrating. (Tr. at 183.) 

She could only walk for about thirty minutes before she would need about a thirty minute 

break, she could pay attention for about an hour, she did not finish things that she started, 

she could follow written instructions such as a recipe or toy assembly instructions, and 

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she could follow spoken instructions but sometimes would need things repeated. (Tr. at 

183.) She got along well with authority figures, tried to avoid stress, sometimes when she 

was under stress she would get a headache or “want to scream,” and she did not handle 

changes in routine easily, but felt she could “go with the flow.” (Tr. at 184.) Plaintiff was 

prescribed an ankle brace in March, 2010, which she wore almost every day. (Tr. at 184.) 

She was taking Cymbalta, which caused dizziness, and Neurontin, which caused mood 

changes. (Tr. at 185.) 

Plaintiff’s mother, Karen Bazon, completed a third party adult function report on 

January 10, 2012, which largely mirrored Plaintiff’s. (Tr. at 167-77.) 

3. Plaintiff’s Testimony at Administrative Hearing

At the administrative hearing held on January 30, 2013, Plaintiff testified as 

follows. (Tr. at 41-72.) She had two daughters: one fourteen-year-old and one twelveyear-old. (Id.) Both children lived with her. (Id.) The last time she had worked was 

September 20, 2009, the day of her automobile accident. (Tr. at 45.) Her primary injury 

was a fractured right ankle. (Tr. at 47-48.) She continued to experience a “lot of 

numbness and tingling and burning,” along with pain shooting up her right leg, 

sometimes into her lower right back. (Id.) She also suffered whiplash and continued to 

experience “persistent neck pain,” and muscle stiffness and spasms. (Id.) After the 

accident, from September 2009 to May 2010, Plaintiff’s mother came to her house every 

day to help her with household cleaning, chores, etc. (Tr. at 66-67.) From May 2010 to 

September 2012, her mother came three times per week to help; she had not been coming

lately however because she was helping Plaintiff’s grandfather in another state. (Id.)

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At the time of the hearing, Plaintiff measured the pain in her ankle and in her neck

as about a seven out of ten. (Tr. at 48-50.) She said Vicodin would bring it down as low 

as a four or five out of ten; she was taking Vicodin twice a day. (Id.) She was elevating 

her leg between four to six hours a day. (Tr. at 49.) She considered Dr. Anwar her 

primary care physician. (Tr. at 50.) She had a difficult time sleeping at night because of 

the pain—she estimated she only slept about five hours a night. (Id.) Her neck pain was 

somewhat relieved by chiropractic adjustments, which she received every two weeks. (Tr. 

at 51.) She also complained of back pain, which she measured as a five out of ten. (Tr. at 

51-52.) The pain and neck muscle spasms made it difficult for her to concentrate. (Tr. at 

53.)

Plaintiff estimated that the most she could lift was a gallon of milk. (Id.) She went 

grocery shopping for about thirty minutes every two weeks. (Id.) She was able to walk 

around the grocery store, but she relied upon the shopping cart to take some of the 

pressure off of her foot. (Tr. at 54.) She was able to stand, for example when she cooked 

dinner or washed dishes, but the pain became too excruciating after about forty-five 

minutes. (Id.) She was able to sit for about two hours before experiencing pain. (Id.) She 

often took a two hour nap during the day while her children were at school. (Tr. at 57.) 

Plaintiff struggled with depression that she believed stemmed from dealing with 

her pain. (Tr. at 58.) She had just begun counseling the previous November and felt that it 

was helping her by allowing her to talk about living with pain every day. (Id.) She was 

seeing Dr. Trevor Grace approximately every two weeks. (Id.) She had a “crucial 

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problem with memory.” (Tr. at 60.) She also had a problem maintaining attention and 

concentration. (Id.)

About three times a week Plaintiff developed headaches that lasted between two to 

six hours and were so bad that she would have to lie down. (Tr. at 62.) Her attorney asked 

her if she had been prescribed a cane after asking for one from Dr. Dunkin on March 27, 

2012. (Tr. at 63-64.) Plaintiff testified that she had not asked about the cane and that Dr. 

Dunkin had recommended that she use it, because her “second MRI showed some wear 

and tear on the bone and [because of] the pressure.” (Id.) She used the cane at home, but 

she did not like to take it outside because she became embarrassed. (Id.)

Plaintiff received a “right sciatic nerve block” from Dr. Fram on August 24, 2012, 

which provided no relief—she had received relief from an earlier pain block, however. 

(Tr. at 64-65.) 

4. Vocational Expert Testimony at Administrative Hearing

The vocational expert (“VE”) testified as follows at the administrative hearing. 

(Tr. at 72-79.) She first noted that her testimony was consistent with the Dictionary of 

Occupational Titles (“DOT”). (Tr. at 75.) The ALJ asked her to assume a hypothetical 

individual who shared Plaintiff’s age, education, and work experience,” and to “further 

assume . . . that the hypothetical individual has the residual functional capacity to do light 

work, which is unskilled; can occasionally stoop, kneel, crouch or crawl; can never climb 

ladders, ropes or scaffolds; can occasionally climb ramps or stairs.” (Tr. at 73-74.) The 

VE testified that the individual would not be able to perform any of Plaintiff’s past work. 

(Tr. at 74.) However, the individual could do other work, such as machine tending with 

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approximately 7800 jobs available in Michigan, light assembly with approximately 

14,000 jobs in Michigan, and counter clerking with approximately 14,900 jobs in 

Michigan. (Id.) 

The ALJ then asked the VE to assume “that the hypothetical individual has an 

RFC to do light work, which is unskilled; again can occasionally stoop, kneel, crouch or 

crawl; can never climb ladders, ropes or scaffolds; can occasionally climb ramps or stairs; 

and in this case can stand or walk for two hours of a standard eight-hour workday.” (Tr. 

at 74-75.) The individual would also not be able to do any of Plaintiff’s past work, but 

would be able to do all of the above-listed jobs except the counter clerk would be reduced 

to approximately 7200 available positions for the region. (Tr. at 75.) 

For the third hypothetical, the ALJ asked the VE to “assume the same as in 

hypothetical number two. In addition, the hypothetical individual should be allowed to 

elevate her right foot as necessary for two hours in a standard eight-hour work period.” 

(Tr. at 76.) The VE said that there would be approximately 1800 security monitor 

positions and approximately 4600 information clerk positions in Michigan that the 

individual could perform. (Tr. at 76-77.) It would be work preclusive if the individual 

required four additional ten-minute breaks in the standard eight-hour work period. (Tr. at 

77.) 

Plaintiff’s attorney asked the VE to assume the same individual as the second 

hypothetical, but with the following limitations: 

[B]eing unable to perform the tasks up to one-third of the time. Moderate 

limitations in the ability to maintain attention and concentration for 

extended periods in order to perform simple tasks; moderate limitation in 

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the ability to maintain attention and concentration for extended period in 

order to perform detailed tasks; and moderate limitation in the ability to 

perform a consistent pace without an unreasonable number of rest 

periods.

(Tr. at 77-78.) The VE said the individual would not be able to perform any of Plaintiff’s 

past work or any job because he or she would be off task too much of the time. (Tr. at 

77.) 

F. Governing Law and Analysis

1. Legal Standard

The ALJ determined that Plaintiff had the RFC

to perform light work as defined in 20 CFR 404.1567(b) except: the 

claimant is limited to unskilled work. She can occasionally stoop, 

kneel, crouch or crawl. She can never climb ladders, ropes or 

scaffolds. She can occasionally climb ramps or stairs. She can stand or 

walk for two hours of a standard eight hour workday. She should be 

allowed to elevate her right foot at any level necessary for two hours 

in a standard, eight-hour work period.

(Tr. at 24-25.) The regulations define light work as involving

lifting no more than 20 pounds at a time with frequent lifting or 

carrying of objects weighing up to 10 pounds. Even though the weight 

lifted may be very little, a job is in this category when it requires a 

good deal of walking or standing, or when it involves sitting most of 

the time with some pushing and pulling of arm or leg controls. To be 

considered capable of performing a full or wide range of light work, 

you must have the ability to do substantially all of these activities. If 

someone can do light work, we determine that he or she can also do 

sedentary work, unless there are additional limiting factors such as 

loss of fine dexterity or inability to sit for long periods of time.

20 C.F.R. § 404.1567(b).

After review of the record, I suggest that the ALJ utilized the proper legal standard 

in his application of the Commissioner’s five-step disability analysis to Plaintiff’s claim. 

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I turn next to the consideration of whether substantial evidence supports the ALJ’s 

decision.

2. Substantial Evidence

In deciding whether substantial evidence supports the ALJ’s decision, “we do not 

try the case de novo, resolve conflicts in evidence, or decide questions of credibility.” 

Bass, 499 F.3d at 509; see also Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). A 

reviewing court must consider the evidence in the record as a whole, including any 

evidence that might subtract from the weight of the Commissioner’s factual findings. 

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

court of appeals and the district court may look to any evidence in the record, regardless 

of whether it has been cited by the Appeals Council.” Heston, 245 F.3d at 535. There is 

no requirement that either the ALJ or the reviewing court discuss every piece of evidence 

in the administrative record. Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 508 

(6th Cir. 2006) (“‘[A]n ALJ can consider all the evidence without directly addressing in 

his [or her] written decision every piece of evidence submitted by a party.’” (quoting 

Loral Defense Systems-Akron v. N.L.R.B., 200 F.3d 436, 453 (6th Cir. 1999)); Van Der 

Maas v. Comm’r of Soc. Sec., 198 F. App’x 521, 526 (6th Cir. 2006).

If supported by substantial evidence, the Commissioner’s findings of fact are 

conclusive. 42 U.S.C. § 405(g). Therefore, a court may not reverse the Commissioner’s 

decision merely because it disagrees or because “‘there exists in the record substantial 

evidence to support a different conclusion.’” McClanahan, 474 F.3d at 833 (quoting 

Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001)); see also Mullen, 800 F.2d at 545. 

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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.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994); 

see also Jones, 336 F.3d at 475. “The substantial evidence standard presupposes that 

there is a ‘“zone of choice”’ within which the Commissioner may proceed without 

interference from the courts.” Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994) 

(citations omitted) (quoting Mullen, 800 F.2d at 545).

Plaintiff offers two arguments against the ALJ’s decision. First, she disputes his 

analysis of the treating sources, particularly Dr. Anwar but apparently also Dr. Duncan. 

(Doc. 12 at 10-14.) Included in this argument is a litany of factual and legal errors the 

ALJ supposedly committed. In short, Plaintiff concludes, the “ALJ slanted and even 

outright misstates the evidence in his decision.” (Id. at 14.) The next argument similarly 

cobbles together various strands to contend that the RFC is flawed. (Id. at 15-17.) 

Specifically, she points to two errors skewing the findings: (1) the ALJ improperly 

rejected Plaintiff’s leg-elevation needs and relied on the VE’s mistaken testimony about

the DOT; and (2) the RFC did not incorporate Plaintiff’s depression and limitations in 

concentration, persistence, and pace. (Id. at 15-16.)

a. Treating Source Opinions

Certain opinions of a treating physician receive controlling weight if they are 

“well-supported by medically acceptable clinical and laboratory diagnostic techniques” 

and are “not inconsistent with the other substantial evidence in [the] case record.” 20 

C.F.R. § 404.1527(d)(2). See also Wilson, 378 F.3d at 544. The only opinions entitled to 

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dispositive effect deal with the nature and severity of the claimant’s impairments. 20 

C.F.R. § 404.1527(d); SSR 96-2p, 1996 WL 374188, at *1-2. Therefore, the ALJ does 

not owe a treating opinion deference on matters reserved to the Commissioner. 20 C.F.R. 

§ 404.1527(d); SSR 96-2p, 1996 WL 374188, at *1-2. The ALJ “will not give any special 

significance to the source of an opinion [including treating sources],” regarding whether a 

person is disabled or unable to work, whether an impairment meets or equals a Listing, 

the individual’s RFC, and the application of vocational factors. 20 C.F.R. § 

404.1527(d)(3). 

The Commissioner’s discretion to determine the claimant’s RFC is less capacious 

than it appears at first. While the ALJ determines the RFC, the ALJ might be required to 

give controlling weight to treating source opinions on specific limitations. See 20 C.F.R. 

§ 404.1513(b)-(c) (describing that medical reports can include a source’s “statement 

about what [the claimant] can still do despite [her] impairments”). These opinions would 

necessarily affect the RFC. See Green-Young v. Barnhart, 335 F.3d 99, 106-07 (2d Cir. 

2003) (holding that treating physician’s opinion that claimant could not sit or stand for 

definite periods “should have been accorded controlling weight”). Thus, as the Sixth 

Circuit has noted, “The treating physician rule also applies to the RFC of the claimant.” 

Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 727 (6th Cir. 2014).

Additionally, a physician’s “notation in his notes of a claimed symptom or 

subjective complaint from the patient is not medical evidence; it is the ‘opposite of 

objective medical evidence.’ . . . An ALJ is not required to accept the statement as true or 

to accept as true a physician’s opinion based on those assertions.” Masters v. Astrue, 818 

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F. Supp. 2d 1054, 1067 (N.D. Ill. 2011) (quoting Schaaf v. Astrue, 602 F.3d 869, 875 (7th 

Cir. 2010)). “Otherwise, the hearing would be a useless exercise.” Id. See also Francis v. 

Comm’r of Soc. Sec., 414 F. App’x 802, 804 (6th Cir. 2011) (noting that there was no 

medical opinion in “Dr. Kllefer’s pain-related statement . . . [because] it merely 

regurgitates Francis’s self-described symptoms.”); Poe v. Comm’r of Soc. Sec., 342 F. 

App’x 149, 156 (6th Cir. 2009) (“[S]ubstantial evidence supports the ALJ’s 

determination that the opinion of Dr. Boyd, Poe’s treating physician, was not entitled to 

deference because it was based on Poe’s subjective complaints, rather than objective 

medical data.”).

The regulations mandate that the ALJ provide “good reasons” for the weight 

assigned to the treating source’s opinion in the written determination. 20 C.F.R. § 

404.1527(c)(2). See also Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 875 (6th Cir. 

2007). Therefore, a decision denying benefits

must contain specific reasons for the weight given to the treating 

source’s medical opinion, supported by the evidence in the case record, 

and must be sufficiently specific to make clear to any subsequent 

reviewers the weight the adjudicator gave to the treating source’s 

opinion and the reasons for that weight. 

SSR 96-2p, 1996 WL 374188, at *5 (1996). See also Rogers, 486 F.3d at 242. For 

example, an ALJ can properly reject a treating source opinion if it lacks supporting 

objective evidence. Revels v. Sec. of Health & Human Servs, 882 F. Supp. 637, 640-41 

(E.D. Mich. 1994), aff’d, 51 F.3d 273, 1995 WL 138930, at *1 (6th Cir. 1995) 

(unpublished table decision). “This requirement is not simply a formality; it is to 

safeguard the claimant’s procedural rights.” Cole, 661 F.3d at 937. “[A] failure to follow 

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the procedural requirement of identifying the reasons for discounting the opinions and for 

explaining precisely how those reasons affected the weight accorded the opinions denotes 

a lack of substantial evidence, even where the conclusion of the ALJ may be justified 

based upon the record.” Rogers, 486 F.3d at 243. If the opinion is not entitled to 

controlling weight, the ALJ must nonetheless use a six-factor balancing test to determine 

its probative value. 20 C.F.R. § 404.1527(c). The test looks at whether the source 

examined the claimant, “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 with the record as a whole, and specialization of the 

treating source.” Wilson, 378 F.3d at 544. See also 20 C.F.R. § 404.1527(c).

i. Dr. Duncan

Here, Plaintiff contends the ALJ rejected Dr. Duncan’s and Dr. Anwar’s opinions 

without providing “good reasons.” (Doc. 12 at 13.) I suggest that substantial evidence 

supports the ALJ’s treatment of both physicians. Regarding Dr. Duncan, Plaintiff does 

not single out any particular opinion that the ALJ disregarded. (Id. at 11-12.) Instead, she 

seems to take issue with the ALJ’s discussion of the evidence in Dr. Duncan’s notes. The

ALJ “cherry-pick[ed] . . . . strange” and “bizarre statements,” which he then “twist[ed] 

and turn[ed] to somehow paint Plaintiff in a bad light.” (Id. at 11.) That was, of course, 

when the ALJ was not simply fabricating “evidence from thin air” or “completely 

tak[ing] statements out of context.” (Doc. 12 at 12.)

As an example of the ALJ’s allegedly biased approach, Plaintiff asserts that he 

“never mentioned” Dr. Duncan’s recommendation that Plaintiff needed ankle surgery. 

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(Id. at 11; Tr. at 537.) Plaintiff is mistaken. The ALJ cited to Dr. Duncan’s notes, stating, 

“[W]hile one physician has recommend[ed] arthroscopic surgery ([Exhibit] 12F), two 

other physicians have not supported this recommendation” and the claimant never 

underwent the procedure. (Tr. at 27.) Moreover, Dr. Duncan’s recommendation was 

provisional. (Tr. at 535.) He asked Plaintiff to “consider” surgery and noted that if it 

turned out she had CRPS the surgery might increase those symptoms. (Id. at 536-36.) By 

the next appointment a few months later, Dr. Duncan reversed course and now thought 

that bracing rather than surgery was the “best option.” (Tr. at 533.) Thus the alleged error

was no error at all, and the ALJ even understated the evidence against Plaintiff.4

Next is a picayune objection to a picayune statement in the ALJ’s decision. (Doc. 

12 at 11-12.) Plaintiff finds it “beyond the pale” for the ALJ to suggest that her requests 

for a cane and a brace somehow indicate a less severe medical condition than if a doctor 

had prescribed them unsolicited. (Doc. 12 at 11; Tr. at 27, 693.) As an initial matter, 

Plaintiff fails to connect this part of the ALJ’s analysis to any of Dr. Duncan’s opinions. 

How Dr. Duncan’s opinion appreciates in value by this chain of argument is left unstated. 

Moreover, this was not the lone instance the ALJ noted where Plaintiff’s requests 

for medical goods outstripped her need for those goods. (Id.) The ALJ cited to the 

peculiar incident in September 2009 in which Plaintiff rolled out a lengthy list of medical 

supplies to be filled by the Saginaw Valley Bone and Joint Center. (Tr. at 27, 571.) 

 4 Plaintiff also objects that the ALJ noted the “significant wear” on her shoes, as observed in Dr. Duncan’s 

notes (Tr. at 533), and found it consistent with reports of her weight loss. (Doc. 12 at 11; Tr. at 27.) She presents no 

developed argument on the matter, however. The ALJ’s deductions might fall short Sherlock Holmes’s standards, 

but they are not clearly inappropriate. Cf. Arthur Conan Doyle, The Five Orange Pips, reprinted in I The New 

Annotated Sherlock Holmes 133, 136 (Leslie S. Klinger, ed., 2005) (“You have come up from the south-west, I see. . 

. . That clay and chalk mixture which I see upon your toe-caps is quite distinctive.”).

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Assuring the Center that the insurance agency had told her the “‘sky’s the limit,” she 

proceeded to request a lift chair recliner, wheelchair, ramp, shower bar, and a toilet seat 

riser. (Id.) Unhappy with the reply that prescriptions were limited to medical necessities, 

Plaintiff’s mother called in acting as Plaintiff’s health insurance case manager and 

threatening to take her business elsewhere unless the items were prescribed. (Id.) In light 

of this situation, the ALJ could justifiably question whether Plaintiff requested only 

medically necessary goods and services.5

Plaintiff also complains of other factual mistakes. The ALJ allegedly relied on an 

“invalid” MRI to bolster his conclusion. (Doc. 12 at 11.) Plaintiff says that the MRI was 

deemed “‘extremely limited’” because she experienced excruciating pain during it. (Id.

(quoting (Tr. at 438, 548)).) Perhaps this is a reasonable interpretation of the report, but 

neither it nor Dr. Duncan’s review of it explained why or how it was “limited.” (Tr. at 

438, 548.) More importantly, the ALJ did not cite the report as unequivocal evidence of 

Plaintiff’s health. Instead, he flagged the findings and then discussed later MRIs showing 

improvement. (Tr. at 26.) If anything, then, the ALJ treated the MRI as evidence in 

Plaintiff’s favor by suggesting she improved subsequently.

The ALJ also supposedly misinterpreted Dr. Duncan’s prescription of a 

replacement brace. (Doc. 12 at 12.) Plaintiff’s references to both the record and the ALJ’s 

decision are unclear. She cites an April 2011 report from Dr. Duncan’s office 

recommending a “[b]race with a lace up shoe. She is still having pain about 3/10 or 

 5 Plaintiff hints that her insurance required the “ambulatory aid and not that Plaintiff requested it.” (Doc. 12 

at 11.) She does not cite supporting evidence, or consider the treatment notes’ unequivocal statement that “Plaintiff 

would like to discuss possibly getting a cane to use. . . . [And] [s]he would also like to discuss getting a new brace 

for stability if possible.” (Tr. at 693.) 

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higher, use crutch or cane in opposite hand. Weight-bear as tolerated, with activity as 

tolerated. Patient’s heavy weight does place more strain on healing foot and ankle.” (Tr. 

at 548.) From this, Plaintiff concludes that she needed the brace due to her “‘heavy 

weight’ and not her activity as the ALJ notes.” (Doc. 12 at 12.) These treatment notes are 

ambiguous at best, and in any case the ALJ did not address this specific line in his 

decision, or suggest that her “activity” led to the brace. 

Another of the ALJ’s alleged errors was finding that Dr. Duncan’s blank function 

report form “suggests the claimant does not have any work-related limitations.” (Tr. at 

27; Doc. 12 at 12.) The form in question was nearly blank; it contained only diagnoses. 

(Tr. at 703-04.) Dr. Duncan did not answer, for example, whether Plaintiff had any

physical limitations. (Id.) Plaintiff explains that Dr. Duncan left the form blank because 

“she was unable to assess the limitations without an examination by a physiatrist to 

determine functional limitations.” (Doc. 12 at 12.) The treatment notes Plaintiff cites, 

however, are more ambiguous: “[Plaintiff] is questioning functional capacity today in the 

office and we discussed referral to physiatry for functional capacity exam for need for 

replacement services.” (Tr. at 694.) Perhaps the referral was necessary to determine 

Plaintiff’s functioning, but the notes do not clearly support the claim that Dr. Duncan felt 

incapable of coming to any conclusions without the referral. 

Plaintiff falls back upon the implications arising from Dr. Duncan’s notes: “There 

is no evidence from the medical records to suggest that Dr. Duncan’s medical opinion 

was that Plaintiff did not have any work related impairments as the ALJ suggested.” 

(Doc. 12 at 12.) This double negative hardly helps Plaintiff meet her evidentiary burden 

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to prove that she indeed had such impairments. Nor does it demonstrate an error in the 

ALJ’s decision. He could reasonably conclude that the blank form, submitted by a 

treating physician, “suggest[ed]” Plaintiff had no impairments. (Tr. at 27.) This qualified 

and tepid interpretation does not indicate undue reliance on this form. Moreover, even if 

Plaintiff is correct, and Dr. Duncan lacked the capacity to judge her functioning, this fails 

to help her case. Rather, it undercuts Dr. Duncan by casting her as unprepared to opine on 

the critical issues in this case.

At the tail end of her paragraph on Dr. Duncan, Plaintiff states, “Further, the ALJ 

relied more in his decision about lawsuits and evaluation of alleged phone calls made to 

the orthopedic surgeon for equipment he deemed ‘not medically needed’ than the actual 

evidence.” (Doc. 12 at 12.) Tellingly, she cites for support only one page out of the ALJ’s 

seventeen-page decision. (Tr. at 29.) On that page, the ALG spent one long sentence on 

Plaintiff’s personal injury litigation, and one similarly lengthy sentence on the phone 

calls. (Id.) As a quantitative matter, then, these issues did not occupy disproportionate 

space. And the ALJ coupled his analysis of the litigation with the objective evidence, 

noting that the ongoing lawsuits might explain why Plaintiff’s subjective complaints were 

much more severe than the “normal to mild objective, diagnostic findings reflected 

within the record.” (Id.) Moreover, the ALJ’s analysis concerns Plaintiff’s credibility, not 

Dr. Duncan’s opinion. But Plaintiff does not appear to challenge expressly the credibility 

findings. 

It is true that “the existence of a pending lawsuit alone does not constitute the type 

of substantial evidence needed to discount a plaintiff’s subjective complaints of pain.” 

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Aronis v. Barnhart, No. 02 Civ. 7660(SAS), 2003 WL 22953167, at *7 (S.D. N.Y. Dec. 

15, 2003). The ALJ here, however, did not rely exclusively on the pending lawsuits. Nor 

was his single-sentence analysis comparable to other cases where the ALJ’s 

preoccupation with the outside litigation was deemed improper. Fortier v. Astrue, No. 

3:10cv01688, 2012 WL 3727178, at *10-11 (D. Conn. May 11, 2012). There the ALJ’s 

“obsession with Plaintiff’s personal injury suit” spanned multiple decisions; even after 

the court remanded specifically because the ALJ speculated on the litigation, he 

continued to cite it repeatedly for support. Id. at *11. In the instant case, the lone 

reference to the outside lawsuit does not suggest a similar “obsession.” 

Other courts have approved an ALJ’s use of such lawsuits as a factor. One court, 

for example, has rejected claims that a similar analysis displayed bias in the ALJ’s 

credibility determination. See Williams v. Comm’r of Soc. Sec., 679 F. Supp. 2d 664, 701 

(N.D. W.Va. 2010) (adopting Report & Recommendation) (“While the ALJ’s comments 

do indicate a skepticism regarding Claimant’s filing for SSI, his comments regarding 

Claimant’s work history and pending legal actions do not ‘display a deep-seated 

favoritism or antagonism that would make fair judgment impossible.” (citation omitted)).

The Eight Circuit has gone further, agreeing with the ALJ that ancillary litigation could 

demonstrate a motive for exaggerating subjective complaints. Gaddis v. Chater, 76 F.3d 

893, 895-96 (8th Cir. 1996); see also Baker v. Barnhart, No. 02 C 3195, 2003 WL 

2105844, at *9 (N.D. Ill. 2003) (“At least one other court has recognized that in some 

circumstances it may be proper to consider a claimant’s other litigation as evidence of 

secondary motive for exaggerating symptoms or pursuing disability insurance benefits.”);

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cf. James-Parker v. Comm’r of Soc. Sec., No. 1:11-cv-1236, 2013 WL 1150593, at *6 

(W.D. Mich. Mar. 19, 2013) (upholding the ALJ’s credibility analysis, which discounted 

the plaintiff’s testimony because she gave “evasive” answers “regarding her history of 

claims and lawsuits related to long term disability, workers compensation and no-fault 

insurance”). Here, the ALJ could properly discount Plaintiff’s credibility due to the 

incentives provided by pending litigation, especially when the objective evidence 

supported that assessment. The issue was not central to the credibility assessment, which 

Plaintiff does not directly attack. Plaintiff’s underdeveloped argument thus fails to 

persuade.

ii. Dr. Anwar

Plaintiff next turns to the ALJ’s analysis of Dr. Anwar. (Doc. 12 at 12-13.) She 

contends that the ALJ provided one insufficient reason for rejecting the physician’s 

opinion: that it was completed for a state benefit program that “is designed to assist the 

claimant in obtain[ing] medical insurance coverage, which renders it inherently biased.”6

(Tr. at 31.) According to Plaintiff, this fails to provide “good reasons” under 20 C.F.R. § 

404.1527(c) for rejecting a treating source opinion. (Doc. 12 at 13.) Defendant admits 

that “the ALJ’s inference . . . is too thin a reed on which to rest an outright rejection of a 

treating medical source opinion.” (Doc. 14 at 12.) 

The ALJ erred by not demonstrating he considered the required factors when 

weighing the opinion. See 20 C.F.R. § 404.1527(c). Even if the form’s questionable 

 6 Plaintiff does not appear to take issue with the ALJ’s handling of Dr. Anwar’s second opinion, to which 

he gave little weight because it only addressed “medication side effects” and not a “function by function 

assessment.” (Tr. at 31.)

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provenance was relevant, the ALJ still failed to explain why this fact outweighed other 

considerations. Nor did he did he examine how the nature of the state benefits application 

would skew Dr. Anwar’s findings or why Dr. Anwar’s answers on it would be any 

different than if he submitted an opinion for a Social Security disability application. The 

single reason the ALJ gave cannot support his conclusion.

I suggest, however, that the error does not merit remand, but is instead among the 

narrow class of harmless mistakes made when rejecting a treating source opinion. 

Generally, as Judge Richard Posner put it, “If it is predictable with great confidence that 

the agency will reinstate its decision on remand because the decision is overwhelmingly 

supported by the record though the agency’s original opinion failed to marshal that 

support, then remanding is a waste of time.” Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 

2010). Yet finding harmless error when an ALJ bungles the treating opinion analysis is a 

rare occurrence.

The Sixth Circuit employs a “circumscribed form of harmless error review . . . [in] 

the context of the reasons-giving requirement of [20 C.F.R.] § 404.1527(d)(2).” Rabbers 

v. Comm’r of Soc. Sec., 582 F.3d 647, 656 (6th Cir. 2009). This test stems from Wilson v. 

Commissioner of Social Security. In that case, the ALJ did not give “good reasons” for 

the weight he provided a treating physician’s opinions. 378 F.3d at 545. The court 

refused to brush this off as harmless because the “good reasons” regulation conferred a 

substantial procedural protection. Id. at 546-47. The error would not be overlooked 

“simply because . . . there is sufficient evidence in the record for the ALJ to discount the 

treating source’s opinion and, thus, a different outcome on remand is unlikely.” Id. at 

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546. This is particularly true when there are no medical opinions contradicting the 

erroneously rejected treating source. See Kalmbach v. Comm’r of Soc. Sec., 409 F. App’x 

852, 862 (6th Cir. 2011). 

The Wilson court offered three potential grounds for harmless errors in this 

context: (1) where the “treating source’s opinion is so patently deficient that the 

Commissioner could not possibly credit it,” (2) where the ALJ adopted the opinion or 

made findings consistent with it, or (3) where the ALJ “met the goal of § 1527(d)(2).” 

Wilson, 378 F.3d at 547. These conditions do not leave much room for finding harmless 

error. See, e.g., Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 552 (6th Cir. 2010) 

(refusing to find harmless error where the ALJ “discussed no opinions contrary to that of 

[the rejected treating source] other than that of the reviewing physician”). 

However, the Sixth Circuit’s opinion in Heston v. Commissioner of Social 

Security, provides another type of harmless error. 245 F.3d 528 (6th Cir. 2001). There, 

the ALJ failed to discuss a treating physician’s three-page summary of the claimant’s 

medical history. Id. at 535. The court offered various reasons for finding the error 

harmless, including the report’s lack of supporting objective evidence and its genesis 

prior to the disability onset date Id. at 535-36. The final consideration was that the ALJ 

posed a hypothetical to VE incorporating the physician’s limitations and the VE 

“concluded that there were jobs in the area, taking into consideration[] the limitations, 

that could be performed.” Id.

Nearly the same exchange occurred at the hearing here. The ALJ’s penultimate 

hypothetical incorporated all of the restrictions eventually listed in the RFC. (Tr. at 76.) 

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The VE responded not by proposing “light work” jobs but rather “sedentary” jobs, 

including positions as a ticket seller, information clerk, and security monitor.7 (Tr. at 76-

77.) The VE’s classification of these positions as “sedentary” is critical. Such work 

“involves lifting no more than 10 pounds at a time and occasionally lifting or carrying 

articles like docket files, ledgers, and small tools.” 20 C.F.R. § 404.1567(a). The specific 

job descriptions in the DOT also provide that each job requires lifting ten pounds 

occasionally.8 Dr. Anwar’s opinion easily fits within the “sedentary” classification. As a 

result, all the positions the VE offered in response to the relevant hypothetical could be 

performed by someone laboring under Dr. Anwar’s restrictions. And these were the only 

positions the ALJ’s decision cited to demonstrate that Plaintiff could be gainfully 

employed. (Tr. at 34.) Consequently, the already slight difference between the RFC and 

the opinion disappears altogether in the VE’s testimony. In other words, the error was 

harmless.

iii. Miscellany

Tucked at the end of her treating source argument are two brief contentions 

bearing little relation to the treating physician rule. First, she gripes that “Dr. Kushner is a 

DDS examiner physician who was paid to deny claimant’s claim for Social Security and 

 7 Each job has a specific DOT number, and the VE provided those numbers along with the title. (Tr. at 76-

77.) The number she gave for the “information clerk” position does not match that title, but rather belongs to the 

“call-out operator” position. DOT, Call-Out Operator, 237.367-014 , 1991 WL 672186 (4th ed. 1991). The 

difference is immaterial because both positions are “sedentary,” requiring only occasional lifting up to ten pounds. 

Id; DOT, Information Clerk, 237.367-022, 1991 WL 672188. 8 See DOT, Call-Out Operator, 237.367-014 , 1991 WL 672186 (“Exerting up to 10 pounds of force 

occasionally (Occasionally: activity or condition exists up to 1/3 of the time) and/or a negligible amount of force 

frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise 

move objects.”); DOT, Parimutuel-Ticket Checker, 219.587-010, 1991 WL 671989 (same); DOT, SurveillanceSystem Monitor, 379.367-010, 1991 WL 673244 (same).

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never examined the Plaintiff. Hardly, could Dr. Kushner be considered a neutral third 

party.” (Doc. 12 at 14.) Actually, that is exactly what the regulations and the Sixth Circuit 

would call him. According to the regulations, “State agency medical and psychological 

consultants and other program physicians . . . are highly qualified physicians, 

psychologists, and other medical specialists who are also experts in Social Security 

disability evaluation.” 20 C.F.R. § 404.1527(d)(2)(i). The Sixth Circuit has observed that 

“reviewing physicians” hired by the state agency “have the strongest claims to 

neutrality.” Lucido v. Barnhart, 121 F. App’x 619, 622 (6th Cir. 2005); see also 

Richardson, 402 U.S. at 403 (“The vast workings of the social security administrative 

system make for reliability and impartiality in the consultant reports.”). Simply giving 

“greater weight to state agency physicians over [Plaintiff’s] treating sources [is] not, by 

itself, reversible error.” Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 409 (6th Cir. 

2009). Even if Plaintiff had demonstrated the possibility of bias, she has not shown how 

it prejudiced the findings. Her only contention is that the ALJ “blindly” adopted Dr. 

Kushner’s RFC “but [did] not elicit any light skilled work from the vocational expert.” 

(Doc. 12 at 14.) The vocational-skill level had nothing to do with Dr. Kushner, who 

evaluated her medical condition, not her vocational capabilities. 

Finally, Plaintiff argues that the ALJ never evaluated “whether claimant is capable 

of a competitive work schedule i.e., 8 hour day, 40 hour work week,” as required by 

Social Security Ruling (“SSR”) 96-8p. (Id.) That ruling requires ALJs to “discuss the 

individual’s ability to perform sustained work activities in an ordinary work setting on a 

regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work 

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schedule).” SSR 96-8p, 1996 WL 374184, at *7 (citation omitted). The RFC, however, 

“is the individual’s maximum remaining ability to do sustained work activities in an 

ordinary setting on a regular and continuing basis,” which is a forty-hour work week. Id.

at *2 (emphasis omitted). The evaluation of a claimant’s physical and mental abilities 

aims to “assess the nature and extent of [the claimant’s] physical limitations and then 

determine [the claimant’s] residual functional capacity for work activity on a regular and 

continuing basis.” 20 C.F.R. § 404.1545(b). Thus, generally, the RFC implicitly 

encompasses this finding, see Mynhier v. Astrue, No. 10-cv-037, 2010 WL 3245394, at 

*7 (E.D. Ky. Aug. 16, 2010), although some courts hold that the ALJ must still explain 

his or her reasoning. See Stanfield v. Colvin, No. 2:12-cv-213, 2013 WL 3935071, at *6-7 

(E.D. Ky. July 30, 2013)

Most courts do not require any discussion. Instead, they find that an RFC 

implicitly includes the determination on whether the claimant can sustain a regular work 

schedule. As one explained, “Generally, such a finding is implicit. There is no 

requirement to make an explicit ‘regular and continuing basis’ finding evidence of a 

waxing and waning nature of the claimant’s symptoms.” Thomas v. Comm’r of Soc. Sec., 

No. 1:03-CV-925, 2005 WL 588752, at *6 (E.D. Tex. Jan. 3, 2005).9

 9 See also Beckham v. Colvin, No. 8:13-2774, 2015 WL 733785, at *11 (D. S.C. Feb. 20, 2015) (“Thus, the 

RFC is, by definition, an assessment of an individual’s ability to do sustained work-related physical and mental 

activities in a work setting on a regular and continuing basis.”); Bowers v. Colvin, No. 11-40229, 2014 WL 

3530781, at *10 (D. Mass. Mar. 12, 2014) (noting that there is no requirement the ALJ explicitly make this 

determination and finding that the ALJ implicitly made the finding), Report & Recommendation adopted by 2014 

WL 3530797 (“The record evidence establishes the ALJ implicitly considered Bowers’s ability to sustain her 

activities.”); Raley v. Astrue, No. 2:11cv555, 2012 WL 2368609, at *6 (M.D. Ala. June 21, 2012) (“Thus, in creating 

a RFC assessment for Plaintiff, the ALJ has implicitly reached a determination on whether or not Plaintiff can 

perform those work activities during an eight-hour day.”); Ramirez ex rel. Zetino v. Astrue, No. 10-CV-03522, 2012 

WL 372011, at *22 n.31 (E.D. N.Y. Feb. 3, 2012) (“Thus, in determining that Zetino retained the capacity to 

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Many other courts give the ALJs significant leeway in satisfying this ruling. The 

Fourth Circuit has found that an RFC limiting the claimant to a “‘a wide range of 

sedentary work” at production rate or simple tasks “implicitly contained a finding that 

Mr. Hines physically is able to work an eight hour day.” Hines v. Barnhart, 453 F.3d 559, 

563 (4th Cir. 2006). Likewise, the Fifth Circuit has held that an “ALJ’s determination 

that [the claimant] had the RFC to perform sedentary work is a determination that he is 

able to sustain work-related activities on a ‘regular and continuing basis’” under the SSR 

96-8p. Pekrul v. Barnhart, 153 F. App’x 329, 332 (5th Cir. 2005); see also Dunbar v. 

Barnhart, 330 F.3d 670, 672 (5th Cir. 2003) (holding that the ALJ did not need to make 

“a specific finding that the claimant can maintain employment” where there was no 

evidence that this ability was “compromised despite [the claimant’s] ability to perform 

employment as an initial matter” and no “indication that the ALJ did not appreciate that 

 

‘perform the full range of light work . . .’ the ALJ implicitly found that Zetino could perform such work on a 

sustained basis.”); Ricks v. Comm’r of Soc. Sec., No. 2:09cv622, 2010 WL 6621693, at *14 (E.D. Va. Dec. 29, 

2010) (Report & Recommendation) (“As defined, any assessment of a claimant’s RFC is necessarily an assessment 

of the claimant’s ability to work a forty-hour week.”); Mynhier, 2010 WL 3245394, at *7 (noting SSR 96-8p’s 

definition of RFC and concluding, “Thus, implicit in an ALJ’s RFC finding was the ALJ’s determination that [the 

claimant] could perform light work on a ‘regular and continuing’ basis and not merely for a short period of time”); 

Clark v. Astrue, No. C09-5342, 2010 WL 842322, at *9 (W.D. Wash. Mar. 8, 2010) (adopting Report &

Recommendation) (“It is axiomatic that the residual functional capacity finding is inherently an assessment of a 

claimant’s ability to perform ongoing work.”); Porter v. Astrue, No. 08-CV-33, 2009 WL 2595562, at *15 (D. Ore. 

Aug. 19, 2009) (adopting Report & Recommendation) (“Because Porter did not explain his argument, this court 

relies upon a plain reading of SSR 96-8p and finds that the ALJ implicitly considered Porter’s ability to work eight 

hours per day, five days per week.”); but see Martin v. Astrue, No. 6:08-3006, 2010 WL 890064, at *10 (D. S.C. 

Mar. 8, 2010) (noting the contrary authority, binding authority from the Fourth Circuit but simply holding, without 

elaboration, that those cases “do[] not excuse the ALJ’s failure to comply” with the Ruling); Brodbeck v. Astrue, No. 

5:05-CV-0257, 2008 WL 681905, at *8 (N.D. N.Y. Mar. 7, 2008) (remanding where the ALJ’s only 

acknowledgement of the workday limitation came by giving great weight to a medical source’s opinion concerning 

how much the claimant could lift in a normal day); Mardukhayev v. Comm’r of Soc. Sec., No. 01-CV-1324, 2002 

WL 603041, at *6 (E.D. N.Y. Mar. 29, 2002) (“In addition, I conclude that the ALJ did not determine, explicitly or 

implicitly, whether the claimant had the capacity to work on a ‘regular and continuing basis.’”).

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an ability to perform work on a regular and continuing basis is inherent in the definition 

of RFC”). 

Even courts demanding more thorough discussions have allowed broad assertions 

in the decision to fulfill this requirement. In Stanfield v. Colvin, the court held that the

ALJ “must still explain [his or her] determination” that the claimant can perform fulltime work. 2013 WL 3935071, at *6-7. Nonetheless, it was sufficient that the ALJ 

mentioned the claimant’s part-time work, he “regurgitated” a doctor’s assessment and 

other third-party statements, and the plaintiff pointed “to no additional evidence to 

suggest she could not perform in the limited capacity the RFC details on a full-time 

basis.” Id. Similarly, in Scott v. Commissioner of Social Security, the ALJ’s consideration 

of the claimant’s “past experience with various ailments” and his references to an eighthour work day sufficed to meet the Ruling. No. 11-13545, 2012 WL 4178844, at *3-4 

(E.D. Mich. Sept. 19, 2012).

The RFC here sufficiently demonstrates the ALJ’s finding that Plaintiff can work 

on a regular schedule. The ALJ’s decision defines the RFC as the claimant’s ability “to 

do physical and mental work activities on a sustained basis despite limitations from her 

impairments.” (Tr. at 20.) “[S]ustained basis” suggests that the ALJ considered Plaintiff’s

capacity to work for an extended period. Moreover, in that discussion, he cited 20 C.F.R. 

§ 404.1520(e), which in turn references § 404.1545, the provision establishing the 

“regular and continuing basis” requirement. (Tr. at 20.) He also cited the Ruling at issue 

here, SSR 96-8p. (Tr. at 20, 24.) Cf. Dunbar, 330 F.3d at 672 (noting that the ALJ cited 

the regulation, suggesting he considered the claimant’s ability to maintain employment); 

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Clark, 2010 WL 842322, at *9 (same). At the hearing, the ALJ frequently mentioned the 

standard workday. (Tr. at 76-77.) For example, he asked the VE whether forty-minutes of 

additional breaks in an eight-hour day would preclude employment (Tr. at 77.) 

More importantly, the RFC references her ability to “stand or walk for two hours 

of a standard eight hour workday.” (Tr. at 24.) It also states that Plaintiff must “be 

allowed to elevate her right foot at any level necessary for two hours in a standard, eighthour work period.” (Tr. at 25.) Cf. Scott, 2012 WL 4178844, at *3-4. The ALJ was 

plainly considering her ability to maintain a normal work schedule, and he offered 

reasons why she could. The RFC’s references to a “standard” workday more directly 

address SSR-96-8p than either of the ALJs’ decisions in Hines and Pekrul. Further, 

Plaintiff offers no plausible evidence indicating she could not maintain employment once 

begun. Cf. Dunbar, 330 F.3d at 672; Porter, 2009 WL 2595562, at *15. The only possible 

limitation affecting her ability to endure a normal schedule is her alleged need to raise her 

ankle for four to six hours per day (Doc. 12 at 15). But as discussed below, the ALJ

properly rejected this contention. Therefore, I suggest that he did not need to type out 

“forty hours per week” alongside his references to “a standard, eight-hour work period.”

b. The RFC

i. Leg Elevation and Vocational Evidence

Plaintiff next contends that the RFC did not accurately portray her impairments. 

(Doc. 12 at 14.) First, she claims that the ALJ did not “factor” into his RFC all the severe 

impairments he found at step two. (Id. at 15.) It seems that the only result of this error, at 

least the only one Plaintiff flags, is that the RFC allotted her two hours of leg elevation 

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per day rather than the four to six she claimed to need. (Id.) The only evidence she 

adduces is her hearing testimony. (Id.); (Tr. at 48-50.) Finally, she states, “The ALJ 

points to no medical records for his rejection that Plaintiff needs to elevate her legs for 4-

6 hours per day.” (Doc. 12 at 15.)

If the ALJ pointed to no such records, it was for the same reason Plaintiff does 

not: none exist demonstrating her need to raise her leg for a shorter length of time

because none exist demonstrating her need to raise her leg at all. A 2011 note from Dr. 

Duncan states, “[Plaintiff] does notice swelling all the time, it increases with activity, 

elevation does help.” (Tr. at 535.) Other than this statement, apparently coming from 

Plaintiff herself, the record scarcely mentions leg elevation. Despite the lack of “objective 

support” for this limitation, the RFC nonetheless accommodated Plaintiff by allowing her 

to raise the leg for two hours per day. (Tr. at 24, 32.) 

The Sixth Circuit has addressed a similarly “bald claim” that an RFC’s allowance 

of two hours of leg elevation per day was not enough. Morris v. Barnhart, 223 F. App’x 

465, 468 (6th Cir. 2007). There, as here, the claimant propped his claim upon little more 

than his own testimony and his doctors’ observations of discoloration when he stood. Id.

The court stated, “Nowhere in [the doctors’] reports do they detail for how long, at what 

elevation, or even whether elevating the feet at all would improve Morris’[s] condition.” 

Id. He stood and walked “in a number of [his] daily activities,” including when he 

cleaned his house. Id. The court consequently upheld the ALJ’s findings. 

For many of the same reasons, substantial evidence supports the ALJ here. With 

no evidence bolstering Plaintiff’s testimony, the ALJ was entitled to discredit it. He gave 

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several valid grounds for questioning her general allegations, including her pending 

related lawsuits, the decreasing frequency of her doctor visits, her exercise and weight 

loss, her inconsistent work history, and her self-employment earnings after the alleged 

onset date. (Tr. at 28-32, 143, 243-44, 533.) Like the claimant in Morris, Plaintiff could 

leave the house and do light housekeeping, such as vacuuming, mopping, sweeping, and 

dusting. (Tr. at 179-80.) With help, she cared for a dog and two birds, and sometimes 

could take on even more physically demanding tasks like “mov[ing] out couches, 

washing walls, mowing, raking, [and] shoveling snow.”10 (Tr. at 180.) This establishes 

substantial evidence supporting the ALJ’s determination.

Plaintiff is not done, however, with the leg elevation argument. After “scour[ing]” 

the DOT, Plaintiff questions whether it is consistent with the VE’s testimony, as the VE 

claimed it was at the hearing. (Doc. 12 at 15-16; Tr. at 75.) Nothing in the DOT’s job 

descriptions mentions leg elevation, Plaintiff observes. (Id.) She does not connect this 

observation to any relevant law, but clearly she means to undercut the vocational 

evidence. 

“‘Substantial evidence may be produced through reliance on the testimony of a 

vocational exert in response to a “hypothetical” question’” if the question accurately 

describes the claimant. Griffeth v. Comm’r of Soc. Sec., 217 F. App’x 425, 429 (6th Cir. 

2007) (quoting Varley v. Sec’y of Human Health Servs., 820 F.2d 777, 779 (6th Cir. 

 10 “The court may consider evidence in the record, regardless of whether it has been cited by the ALJ.” Blackburn v. 

Comm’r of Soc. Sec., No. 4:11-cv-58, 2012 WL 6764068, at *5 (E.D. Tenn. Nov. 14, 2012) (citing Heston v. 

Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th Cir.2001)), Report & Recommendation adopted by 2013 WL 53980, at 

*1 (E.D. Tenn. Jan. 2, 2013). The analysis above merely plugs additional facts into the ALJ’s analysis, it does not 

construct new rationales or arguments for the ALJ’s action.

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1987)). Plaintiff does not say, in this portion of her argument at least, that the 

hypothetical failed to correctly depict her impairments. Instead, the issue she raises

revolves around the DOT. According to SSR 00-4p, “When a VE provides evidence, it 

‘generally should be consistent with . . . the DOT.’” Moran v. Comm’r of Soc. Sec., 40 F. 

Supp. 3d 896, 929 (E.D. Mich. 2014) (quoting SSR 00-4p, 2000 WL 1898704, at *2). But 

while Plaintiff hints that the two are inconsistent, she does not point out how. True, none 

of the DOT job descriptions for the three positions invite workers to put their legs up 

during the workday. But none explicitly prohibit it either.

SSR 00-4p’s consistency requirement is designed to address what the ALJ must do 

“[w]hen there is an apparent unresolved conflict between VE . . . evidence and the DOT.” 

2000 WL 1898704, at *2. As Defendant recognizes, however, “where . . . the DOT is 

silent about specific demands of a particular job, a VE’s testimony filling in the gaps does 

not raise a conflict.” (Doc. 15 at 24.) See also Hynes v. Barnhart, No. 04CV490SM, 2005 

WL 1458747, at *5 (D. N.H. June 15, 2005) (“Here the vocational expert simply applied 

his expertise and provided the ALJ with information that was not provided in the DOT. 

Contrary to claimant’s assertion, there was no ‘conflict’ between the vocational expert’s 

testimony and the data provided by the DOT.”).

Because the positions do not expressly prohibit leg elevation, they could only 

“conflict” with this limitation if one of their required work activities would naturally 

preclude it. Within the DOT descriptions, the only apparent activities that could preclude

leg elevation would be standing and walking. Each of the positions requires standing and 

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walking occasionally, or up to one-third of the eight-hour workday.11 This means the 

worker will stand or walk for roughly 2 hours and 45 minutes per day. And this leaves 5 

hours and 15 minutes for sitting, during which the worker could presumably raise at least 

one leg. Thus the leg elevation requirement does not conflict with the DOT. Other courts 

have held likewise. See Creque v. Astrue, No. 4:10-CV-1528, 2011 WL 4054859, at *6 

(N.D. Ohio Aug. 18, 2011) (“Thus, the Court finds that the VE’s Testimony regarding 

occupations permitting an individual to periodically raise his legs is not contradictory to 

the DOT, but rather augments the data provided in the DOT.”), Report & 

Recommendation adopted by 2011 WL 4043786, at *1 (N.D. Ohio Sept. 12, 2011). 

Without any guidance from the Plaintiff on other potential conflicts, the Court is unable 

determine that the VE’s testimony conflicted with the DOT.

But even if it did, “the plaintiff has not pointed to any authority that the ALJ erred 

in his findings based on the VE’s testimony, which went unchallenged by the plaintiff 

until after the ALJ issued his decision.” Beinlich v. Comm’r of Soc. Sec., 345 F. App’x 

163, 168 (6th Cir. 2009). The DOT does not bind either the ALJ or the VE. Id. (quoting 

Wright v. Massanari, 321 F.3d 611, 616 (6th Cir. 2003)). Nor must the ALJ scour the 

DOT after the hearing to determine whether the VE’s testimony matched it. Lindsley v. 

Comm’r of Soc. Sec., 560 F.3d 601, 606 (6th Cir. 2009). It suffices under SSR 00-4p for 

the ALJ to ask the VE at the hearing if his or her testimony conflicts with the DOT. Id.; 

see also Martin v. Comm’r of Soc. Sec., 170 F. App’x 369, 374 (6th Cir. 2006) (“Nothing 

 11 See DOT, Call-Out Operator, 237.367-014 , 1991 WL 672186; DOT, Parimutuel-Ticket Checker, 

219.587-010, 1991 WL 671989; DOT, Surveillance-System Monitor, 379.367-010, 1991 WL 673244.

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in SSR 00-4p places an affirmative duty on the ALJ to conduct an independent 

investigation into the testimony of witnesses to determine if they are correct.”). The ALJ 

here did that four times, after each hypothetical. (Tr. at 74, 76-77.) In doing so, he 

satisfied his obligations under SSR 00-4p.

ii. Concentration, Persistence, and Pace

Plaintiff’s final substantial argument is that the RFC and hearing hypotheticals do 

not “mention” or “factor” Plaintiff’s “depression and moderate limitations in 

concentration, persistence, or pace” found at Step Three. (Doc. 12 at 16.) At that step, the 

ALJ found Plaintiff had moderate difficulties with concentration, persistence, or pace. 

(Tr. at 24.) In the RFC, Plaintiff is limited to “unskilled” work. (Id.) Plaintiff’s argument 

consists of a series of sentences each stating that the ALJ never “factor[ed],” 

“mention[ed],” or “include[d]” Plaintiff’s concentration problems in the hypothetical or 

the RFC. (Doc. 12 at 16.) Along with these allegations, Plaintiff cites two cases for the 

proposition that the hypothetical must incorporate a claimant’s impairments. (Id. (quoting 

Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 516 (6th Cir. 2010); Green v. Comm’r of Soc. 

Sec., No. 08-11398, 2009 WL 2365557, at *10 (E.D. Mich. July 28, 2009))). How did the 

RFC and hypothetical fail to encompass these concentrational difficulties? Plaintiff offers 

a single non-conclusory sentence, citing no medical evidence: “The medical records 

demonstrate Plaintiff has severe memory problems, fatigue, and severe pain.” (Id.)

Plaintiff’s argument is “not uncommon and the case law resolves it both ways.” 

Hernandez v. Comm’r of Soc. Sec., No. 10-cv-14364, 2011 WL 4407225, at *9 (E.D. 

Mich. Aug. 30, 2011) (collecting cases). The Hernandez court stated that

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a hypothetical simply limiting a claimant to unskilled work may, in some 

instances, fail to capture a claimant’s moderate limitation in 

concentration, persistence, or pace . . . . However, the Court also finds 

that there is no bright-line rule requiring remand whenever an ALJ’s 

hypothetical includes a limitation of, for example, “unskilled work” but 

excludes a moderate limitation in concentration. Rather, this Court must 

look at the record as a whole and determine if substantial evidence 

supports the ALJ’s hypothetical and RFC assessment.

Id. at *10 (citations omitted). In some cases courts will remand when an ALJ’s 

“hypothetical does not include a specific reference to moderate limitations in 

concentration or pace and only limits the hypothetical individual to unskilled work or 

simple, routine tasks,” but “other cases have found that an ALJ formed an accurate 

hypothetical by limiting the claimant to unskilled work and omitting a moderate 

concentration or pace limitation.” Taylor v. Commissioner of Soc. Sec., No. 10-CV12519, 2011 WL 2682682, at *7 (E.D. Mich. May 17, 2011), Report & Recommendation 

adopted, No. 10-12519, 2011 WL 2682892 (E.D. Mich. July 11, 2011). “[T]here is no 

bright-line rule requiring remand” in these circumstances. Roberts v. Comm’r of Soc. 

Sec., No. 10-cv-14064, at *8 (E.D. Mich. Aug. 8, 2011), Report & Recommendation 

adopted by 2011 WL 4406344, at *1 (E.D. Mich. Sept. 22, 2011). Instead, “this Court 

must look at the record as a whole and determine if substantial evidence supports the 

ALJ’s decision.” Id.

In this case, the “unskilled” designation adequately reflects the rather meager 

evidence of mental health problems. The ALJ explained that Plaintiff had not received 

consistent specialized mental health treatment. (Tr. at 29.) He also pointed to the 

unremarkable results from two neuropsychological examinations. (Tr. at 30, 402-07, 507-

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18.) During the first, with Dr. MacInnes, Plaintiff “denied losing her train of thought or 

misplacing things more often than in the past and she felt that ‘[her] memory is still 

intact.’” (Tr. at 402.) In the testing, she “was able to maintain the purpose throughout 

each test” and “enjoyed working at a rapid pace and also seemed to enjoy the challenge 

that many of the tests presented.” (Tr. at 404.) Indeed, she “preferred to work at a steady, 

slightly hurried pace and performed quite well.” (Id.) Her conversation was pleasant and 

“she was easily redirected to testing and remained focused throughout the tasks.” (Id.)

With observations like these, it is no surprise that Dr. MacInnes made the 

following findings: her “basic attention span on the auditory modality fell in the aboveaverage to superior range,” her ability to sustain auditory attention was average, her 

mental speed and calculations “in the auditory modality” were above average, and her 

sustained visual attention-span for brief period was above average. (Tr. at 405.) Only on 

“less engaging” tasks did she have “mild difficulties” with visual attention. (Id.) Her 

problems-solving skills and abstract thinking were “average-to-above average,” and 

overall her intellectual functioning fell “in the average range.” (Id.) In his summary, Dr. 

MacInnes concluded that the results were generally normal, and that she did not have 

significant cognitive deficits. (Tr. at 406.) This report, then, does not support Plaintiff’s 

argument.

Dr. Greiffenstein’s neuropsychological report confirms these findings. (Tr. at 507-

18.) Her main complaint at that session was physical pain; “she [did] not really think 

there is anything wrong with her mind.” (Tr. at 508.) She stated that her memory and 

concentration waned “when she experience[d] great pain,” but returned to normal “with 

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relatively less pain.” (Id.) One of her favorite daily activities was reading magazines, and 

she could “maintain vigilance over long periods of time” when reading. (Id.) Regarding 

her depression, she “was uncertain why she never sought mental health care,” referring 

particularly to the period before the accident. (Tr. at 509.) Dr. Greiffenstein thought her 

“attention and concentration were normal” during conversation, and she could easily be 

redirected on topic. (Tr. at 512.) Overall, her performance on neuropsychological tests 

“was in the superior range.” (Tr. at 513.) Her memory and “learning” were normal in 

most aspects and superior in others. (Tr. at 514-15.) Concluding, the doctor wrote, “There 

is no objective evidence for cognitive impairment, even though Ms. Trischler reports 

widespread cognitive concerns on a subjective basis.” (Tr. at 515.) Like the other report, 

these findings do not aid Plaintiff’s cause.

Further, Plaintiff’s self-reported hobbies suggest a greater ability to concentrate. 

(Tr. at 182.) Among these, she searches for coupons weekly, uses social media, and plays 

Scrabble, although only a few times a year. (Id.) Further, as the ALJ noted, Plaintiff 

reported being able to follow recipes, assemble toys, and follow instructions if given 

reminders. (Tr. at 24, 183.) These are certainly not strong indications of her ability to 

concentrate, but when added to the neuropsychological reports and weighed against 

countervailing evidence, which is almost entirely subjective (Tr. at 53, 60, 77-78, 183), 

they give further support to the ALJ’s decision. Moreover, her depression seemed wellcontrolled with medication. (Tr. at 29, 486, 492, 493, 624.)

The evidence, taken as a whole, simply does not demonstrate significant problems 

with concentration, persistence, or pace. Cf. Roberts, 2011 WL 4407221, at *8. All the 

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objective testing of these functions, described above, displayed normal results. The only

medical evidence suggesting any concentrational issues was from reviewing psychologist 

Dr. Wayne Hill, who found “mild” problems (Tr. at 85), and from Mr. Kozicki, who 

wrote without explanation that Plaintiff had “some trouble thinking.” (Tr. at 624.) It is 

unclear whether this latter observation came from Plaintiff or Mr. Kozicki. In any case, 

these two statements do not overcome the intricate and extensive testing by examining 

experts noted above. Moreover, Plaintiff fails to offer the Court any guidance on how her 

mental problems manifested or what additional limitations the RFC should include. 

Absent such guidance, the Court cannot say that the ALJ erred by only limiting her to 

unskilled work.

c. Waived Arguments

Plaintiff implies two additional arguments in her brief, but I suggest she waived 

both. At the end of Plaintiff’s paragraph dealing with leg elevation, she plants an 

unrelated, single-sentence argument: “The ALJ does not evaluate Ms. Trischler’s pain, 

medication side effect or any other symptoms whatsoever in his decision.” (Doc. 12 at 

16.) The ALJ did discuss her pain and medication side effects (Tr. at 28, 31), and spent 

about nine pages evaluating the medical evidence of her “symptoms.” (Tr. at 25-33.) The 

decision dealt with little else. Aside from being inaccurate, Plaintiff’s contention is fatally 

undeveloped. Kuhn v. Washtenaw Cnty., 709 F.3d 612, 624 (6th Cir. 2013) (“This court 

has consistently held that . . . arguments adverted to in only a perfunctory manner, are 

waived.”). I suggest that she has waived this argument.

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On the last page of her brief, Plaintiff provides an extensive block quote from SSR 

96-8p, which requires the RFC assessment to “include a narrative discussion describing 

how the evidence supports each conclusion, citing specific medical facts . . . and 

nonmedical evidence.” SSR 96-8p, 1996 WL 374184, at *7. Beneath the quote, she 

appends her argument: “Curiously, the ALJ never complied or even attempted to 

reconcile Social Security Ruling 96-8p with his decision.” (Doc. 12 at 17.) Thus begins 

and ends the argument. Again, the ALJ’s extensive discussion analytically engaged the 

evidence, weighed it, and found Plaintiff’s claims lacking. Her citation to SSR 96-8p and 

conclusory remark do not provide a reason to find otherwise. Therefore I suggest that this 

argument, too, has been waived.

G. Conclusion

For all these reasons, after review of the record, I suggest that the decision of the 

ALJ, which ultimately became the final decision of the Commissioner, is supported by 

substantial evidence. 

III. REVIEW

Rule 72(b)(2) of the Federal Rules of Civil Procedure states that “[w]ithin 14 days 

after being served with a copy of the recommended disposition, a party may serve and 

file specific written objections to the proposed findings and recommendations. A party 

may respond to another party’s objections within 14 days after being served with a copy.” 

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

constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 155; 

Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 508 (6th Cir. 1991); United 

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States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981). The parties are advised that making 

some objections, but failing to raise others, will not preserve all the objections a party 

may have to this Report and Recommendation. Willis v. Sec’y of Health & Human Servs., 

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). According to E.D. Mich. LR 72.1(d)(2), a copy of any 

objections is to be served upon this magistrate judge.

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,” etc. Any 

objection must recite precisely the provision of this Report and Recommendation to 

which it pertains. Not later than 14 days after service of an objection, the opposing party 

may file a concise response proportionate to the objections in length and complexity. Fed. 

R. Civ. P. 72(b)(2); E.D. Mich. LR 72.1(d). The response must specifically address each 

issue raised in the objections, in the same order, and labeled as “Response to Objection 

No. 1,” “Response to Objection No. 2,” etc. If the Court determines that any objections 

are without merit, it may rule without awaiting the response.

Date: August 19, 2015 s/ patricia t. morris

Patricia T. Morris

United States Magistrate Judge

CERTIFICATION

I hereby certify that the foregoing document was electronically filed this date 

through the Court’s CM/ECF system which delivers a copy to all counsel of record.

Date: August 19, 2015 By s/Kristen Krawczyk 

 Case Manager to Magistrate Judge Morris

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