1

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DAVID ROBERT 

OPPERMAN, 

 Plaintiff, 

v. 

COMMISSIONER OF 

SOCIAL SECURITY, 

 Defendant. 

 

Case No. 2:14-cv-13145 

Judge George Caram Steeh 

Magistrate Judge Anthony P. Patti 

___________________________________/ 

REPORT AND RECOMMENDATION TO DENY PLAINTIFF’S MOTION 

FOR SUMMARY JUDGMENT (DE 10) and GRANT DEFENDANT’S 

MOTION FOR SUMMARY JUDGMENT (DE 13) 

I. RECOMMENDATION: For the reasons that follow, it is 

RECOMMENDED that the Court DENY Plaintiff’s motion for summary 

judgment, GRANT Defendant’s motion for summary judgment, and AFFIRM the 

Commissioner’s decision. 

II. REPORT 

 Plaintiff, David Robert Opperman, brings this action under 42 U.S.C. §§ 

405(g) for review of a final decision of the Commissioner of Social Security 

(“Commissioner”) denying his application for disability insurance benefits. This 

matter is before the United States Magistrate Judge for a Report and 

Recommendation on Plaintiff’s motion for summary judgment (DE 10), the 

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Commissioner’s cross motion for summary judgment (DE 13) and the 

administrative record (DE 7). 

A. Background

 Plaintiff filed his application for disability insurance benefits (DIB) during 

June 2011, alleging that he has been disabled since December 5, 2005, at age 41. 

R 80-86. Plaintiff alleges disability as a result of: three right knee replacements, 

surgeries, back pain; leg pain; depression; anxiety; fatigue and arthritis. R. at 89-

101. Plaintiff’s application was denied initially on October 13, 2011. R. at 61, 62-

66. 

On December 3, 2011, Plaintiff sought a de novo hearing before an 

Administrative Law Judge (“ALJ”). R. at 69-70. ALJ Brenton L. Rogozen held a 

hearing on February 13, 2013, at which Plaintiff, his counsel and vocational expert, 

Ms. Gasgo, appeared. R. at 27-60; see also R. at 7-8. On March 14, 2013, the ALJ 

Rogozen issued an unfavorable decision, concluding that Plaintiff had not been 

under a disability within the meaning of the Social Security Act since the alleged 

onset date of December 5, 2005, through the date last insured of March 31, 2011. 

R. at 9-26. 

On May 2, 2013, Plaintiff requested review of the decision. R. at 7-8. On 

June 25, 2014, the Appeals Council denied Plaintiff’s request for review. R. at 1-6. 

Thus, the ALJ’s decision became the Commissioner’s final decision. 

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Plaintiff then timely commenced the instant action on August 14, 2014. DE 

1. 

B. Plaintiff’s Medical History 

 Plaintiff alleges that he has been disabled since December 5, 2005. R. at 80. 

Plaintiff’s medical records span the period from January 9, 2006 to October 13, 

2011. R. at 162-595 (Exhibits 1F-12F). Among those the ALJ reviewed and cited 

are: 

 April 4, 2006 operative report of T.J. Cherwin, D.O. (R. at 173-

174) 

 January 11, 2007 examination under fluoroscopy of the right 

knee (R. at 178) 

 March 15, 2007 radiology consultation (R. at 187-188) 

 March 15, 2007 operative report of Dr. Cherwin (R. at 191) 

 January 2, 2008 four views of right knee (R. at 252) 

 January 2, 2008 notes of John David Blaha, M.D. (R. at 299-

300) 

 July 28, 2008 letter of Laurie Astrowski, P.T. (R. at 238) 

 September 24, 2008 four views of right knee (R. at 266) 

 March 17, 2009 four views of right knee (R. at 262) 

 January 12, 2010 MRI of lumbar spine (R. at 267-268) 

 February 2, 2010 notes of Dr. Blaha (R. at 275-276) 

 March 25, 2010 notes of Daniel Leung, D.O. (R. at 270-271) 

 May 3, 2010 physical therapy report (R. at 321-326) 

 October 19, 2010 notes of Sridhar Rao, M.D. (R. at 352) 

 July 13, 2011 notes of Dr. Rao and Kathy Pittenger (R. at 341-

342) 

 October 12, 2011 assessment of Natalie Gray, M.D. (R. at 361-

363) 

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R. at 19-21. In addition, the Undersigned acknowledges that the May 21, 2008 

notes of Dr. Blaha reflect a November 29, 2007 “revision right total knee 

arthroplasty.” R. at 295.1

 

 C. Hearing Testimony (February 13, 2013) 

1. Plaintiff’s Testimony 

Plaintiff testified at the hearing in response to questioning by the ALJ and 

his attorney. R. at 31-52. Plaintiff testified that he went up to but did not finish the 

twelfth grade. R. at 32. He last worked in December 2005 as a union labor 

foreman. R. at 33. 

He has had three knee replacements. R. at 33. The first took place on April 

4, 2006, but it did not work. R. at 35. The second took place on March 15, 2007, 

but he still had pain. The third took place on November 29, 2007; however, now 

his knee pops. R. at 36. Plaintiff testified that, “the pain from my knee rolls up the 

back of my leg up to my butt and into my back.” R. at 37. He is not walking 

correctly, and his back hurts all of the time. R. at 37. It feels as if his leg is 

“shaky.” Each time he walks, you can hear his leg “clunk.” R. at 47. At this 

point, Plaintiff is “just holding off until they find a different – maybe a different 

procedure they can do.” R. at 38. 

 

1 The italicized records concern Plaintiff’s first, second and third knee replacement 

surgeries. See DE 10 at 17-19. 

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Plaintiff’s wife drove him the hour and 45 minutes to the hearing. R. at 31-

32. It was too far for him to drive, and he has to get out and stretch. R. at 32. 

Plaintiff sits leaning to the left in order to lessen the Charlie horse-like pain in his 

right buttocks. R. at 40. A cane helps to keep his back straighter and stabilize his 

body when he walks. R. at 50. 

He can go to Walmart with his wife, but he will be in pain by the time he 

gets home and will probably be in a little bit more pain the following day. R. at 41. 

He lays down as many as two to three times per day. R. at 42. He cannot sit in a 

chair for very long and has to keep moving around. R. at 44. Plaintiff also 

testified that he did not sleep well the night before the hearing, having slept on the 

couch because he did not want to bother his wife. If he stands to wash dishes for 

30 minutes, he has to go lay down. R. at 46. Plaintiff watches television. He tries 

to vacuum and take care of the house. R. at 48. He has a pontoon boat, and he will 

swim. R. at 48-49. 

Plaintiff takes Vicodin for pain, Valium for muscle relaxation and anxiety, 

and Zoloft for a little depression and anxiety. R. at 42. 

 2. Vocational Expert Testimony

 The ALJ posed the hypothetical of a person similar to Plaintiff who is 

limited to unskilled work, no lifting greater than 20 pounds occasionally and 10 

pounds frequently, and could be performed either sitting or standing at any point 

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during the day. Ms. Gasco, the vocational expert (VE), testified that such a person 

could perform some jobs at the light range of exertion, including construction site 

flagger, router, and inspector. R. at 53-56. 

The VE then testified that missing more than 2 days of work per month 

would result in job loss; however, when asked whether some employers would not 

accept that level of time, the VE stated, “[i]t might vary.” R. at 56-58. Moreover, 

the VE testified that if, in addition to taking regular breaks, a person needed to take 

breaks totaling up to an hour in order to be able to lie down, or if a person is off 

task more than 10 percent of the work day, an employer would not keep such a 

person employed. R. at 56-57. 

 D. The Administrative Decision2

 

2 Social Security Regulations require ALJs to resolve a disability claim through a 

five-step sequential evaluation of the evidence. See 20 C.F.R. §404.1520(a)(4). 

Although a dispositive finding at any step terminates the ALJ’s review, see Colvin 

v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), if fully considered, the sequential 

review considers and answers five questions: 

 1. Is the claimant engaged in substantial gainful activity? 

 2. Does the claimant suffer from one or more severe impairments? 

 3. Do the claimant’s severe impairments, alone or in combination, meet 

or equal the criteria of an impairment set forth in the Commissioner’s Listing of 

Impairments, 20 C.F.R. Subpart P, Appendix 1? 

 4. Considering the claimant’s residual functional capacity, can the 

claimant perform his or her past relevant work? 

 5. Considering the claimant’s age, education, past work experience, and 

residual functional capacity, can the claimant perform other work available in the 

national economy? 

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 ALJ Rogozen rendered his decision on March 14, 2013. R. at 9-26. 

At Step 1, he concluded that Plaintiff did not engage in substantial gainful activity 

from December 5, 2005, his alleged onset date, through March 31, 2011, his date 

last insured. R. at 14. 

 At Step 2, the ALJ found that, through the date last insured, Plaintiff had the 

severe impairments of degenerative joint disease of the right knee and disorders of 

the back. R. at 14-16. 

At Step 3, the ALJ found that, through the date last insured, Plaintiff did not 

have an impairment or combination of impairments that met or medially equaled 

the severity of one of the listed impairments. R. at 16. 

 At Step 4, the ALJ found that Plaintiff had the residual functional capacity 

(RFC) to perform light work, specifically: Plaintiff can occasionally lift and carry 

20 pounds and frequently lift and carry 10 pounds; he needs a job that 

accommodate[s] [a] sit or stand option at any point throughout the workday; and he 

is limited to an unskilled job. R. at 16-21. Moreover, the ALJ concluded that 

Plaintiff was unable to perform any past relevant work. R. at 21-22. 

Finally, at Step 5, the ALJ found that through the date last insured, 

considering Plaintiff’s age, education, work experience, and RFC, there were jobs 

 

See 20 C.F.R. §404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th 

Cir. 2009); Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001). 

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that existed in significant numbers in the national economy that Plaintiff could 

have performed. R. at 22-23. 

 E. Standard of Review

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

administrative decision pursuant to 42 U.S.C. § 405(g). When reviewing a case 

under the Social Security Act, the Court “must affirm the Commissioner’s decision 

if it ‘is supported by substantial evidence and was made pursuant to proper legal 

standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. at 2009) 

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. at 2007)); see 

also 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner of Social Security as 

to any fact, if supported by substantial evidence, shall be conclusive . . . .”). Under 

this standard, “substantial evidence is defined as ‘more than a scintilla of evidence 

but less than a preponderance; it is such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion.’” Rogers, 486 F.3d at 241 

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

1994)). In deciding whether substantial evidence supports the ALJ’s decision, the 

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

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

Rogers, 486 F.3d at 247 (“It is of course for the ALJ, and not the reviewing court, 

to evaluate the credibility of witnesses, including that of the claimant.”). 

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Furthermore, the claimant “has the ultimate burden to establish an entitlement to 

benefits by proving the existence of a disability.” Moon v. Sullivan, 923 F.2d 

1175, 1181 (6th Cir. 1990). 

 Although the substantial evidence standard is deferential, it is not trivial. 

The Court must “‘take into account whatever in the record fairly detracts from 

[the] weight’” of the Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 

395 (6th Cir. 2002) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 

(1951)). Nevertheless, “if substantial evidence supports the ALJ’s decision, this 

Court defers to that finding ‘even if there is substantial evidence in the record that 

would have supported an opposite conclusion.’” Blakley v. Comm’r of Soc. Sec., 

581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)); 

see also 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security 

as to any fact, if supported by substantial evidence, shall be conclusive . . . .”). 

Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘a 

decision of the Commissioner will not be upheld where the SSA fails to follow its 

own regulations and where that error prejudices a claimant on the merits or 

deprives the claimant of a substantial right.’” Rabbers, 582 F.3d at 651 (quoting 

Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)). 

F. Analysis

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In his motion for summary judgment, Plaintiff generally argues that the 

record evidence does not support the ALJ’s finding that Plaintiff had the RFC to 

perform light work. DE 10 at 10. Specifically, Plaintiff contends that the ALJ did 

not properly assess Plaintiff’s complaints of pain, limitations and credibility. DE 

10 at 17-31. Also, Plaintiff contends that the ALJ did not pose complete and 

accurate hypothetical questions to the VE. DE 10 at 31-33. 

The Commissioner opposes Plaintiff’s motion, asserting that substantial 

evidence supports both the ALJ’s RFC finding and Step 5 finding. DE 13 at 7-19, 

19-21. 

The Undersigned will address each of the salient points in these arguments 

in turn. 

1. Whether substantial evidence supports the ALJ’s RFC 

finding? 

 

Plaintiff’s RFC is “the most [he or she] can still do despite the physical and 

mental limitations resulting from [his or] her impairments.” Poe v. Comm’r of 

Soc. Sec., 342 F. App’x 149, 155 (6th Cir. 2009); see also 20 C.F.R. §§ 

404.1545(a), 416.945(a). The determination of Plaintiff’s RFC is an issue reserved 

to the Commissioner and must be supported by substantial evidence. 20 C.F.R. §§ 

404.1527(3), 416.927(e). ‘“ALJs must not succumb to the temptation to play 

doctor and make their own independent medical findings.’” Simpson v. Comm’r of 

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Soc. Sec., 344 F. App’x 181, 194 (6th Cir. 2009) (quoting Rohan v. Chater, 98 

F.3d 966, 970 (7th Cir. 1996)). 

Pursuant to Social Security Rule 96-8p, the RFC assessment must include: 

[A] narrative discussion describing how the evidence supports each 

conclusion, citing specific medical facts (e.g., laboratory findings) and 

nonmedical evidence (e.g., daily activities, observations). In 

assessing RFC, the adjudicator must 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 schedule), and describe the maximum amount of 

each work-related activity the individual can perform based on the 

evidence available in the case record. The adjudicator must also 

explain how any material inconsistencies or ambiguities in the 

evidence in the case record were considered and resolved. 

S.S.R. 96-8-, 1996 WL 374184, at *6-7.

a. Opinion evidence 

The ALJ must consider all medical opinions that he or she receives in 

evaluating a claimant’s case. 20 C.F.R. § 416.927(d). The regulations define 

medical opinions as “statements from physicians . . . that reflect judgments about 

the nature and severity of your impairment(s), including your symptoms, diagnosis 

and prognosis, what you can still do despite impairment(s), and your physical or 

mental restrictions.” 20 C.F.R. § 416.927(a)(2). “Administrative law judges are 

not bound by any findings made by State agency medical or psychological 

consultants, or other program physicians or psychologists.” 20 CFR § 

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404.1527(e)(2)(i). The ALJ must, however, “consider findings and other opinions” 

of State Agency medical or psychological consultants. 

The ALJ generally gives deference to the opinions of a treating source 

“since these are likely to be the medical professionals most able to provide a 

detailed, longitudinal picture of [a patient’s] medical impairment(s) and may bring 

a unique perspective to the medical evidence that cannot be obtained from the 

objective medical findings alone . . . .” 20 C.F.R. § 416.927(d)(2); Blakley v. 

Comm’r of Soc. Sec., 581 F.3d 399, 408 (6th Cir. 2009). To qualify as a treating 

source, the physician must have an “ongoing treatment relationship” with the 

claimant. 20 C.F.R. § 404.1502. 

If the ALJ does not afford controlling weight to a treating physician’s 

opinion, the ALJ must meet certain procedural requirements.3

 Wilson v. Comm’r 

 

3 An exception exists for treating source opinions on issues that are reserved to the 

Commissioner, which “are never entitled to controlling weight or special 

significance.” S.S.R. 96-5p, 61 FR 34471-0, at *34473. Examples of issues 

reserved to the Commissioner include: 

1. Whether an individual’s impairment(s) meets or is equivalent in 

severity to the requirements of any impairment(s) in the listings; 

2. What an individual’s RFC is; 

3. Whether an individual’s RFC prevents him or her from doing past 

relevant work; 

4. How the vocational factors of age, education, and work experience 

apply; and 

5. Whether an individual is “disabled” under the Act. 

Id. 

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of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). Specifically, if an ALJ does not 

give a treating source’s opinion controlling weight: 

[A]n ALJ must apply certain factors—namely, 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 

the specialization of the treating source—in determining what 

weight to give the opinion. 

Id.

 Furthermore, an ALJ must “always give good reasons in [the ALJ’s] notice 

of determination or decision for the weight [the ALJ] give[s] your treating source’s 

opinion.” 20 C.F.R. § 416.927(d)(2). Accordingly, the ALJ’s reasoning “must be 

sufficiently specific to make clear to any subsequent reviewers the weight the 

adjudicator gave to the treating source’s medical opinion and the reasons for that 

weight.” Friend v. Comm’r of Soc. Sec., No. 09-3889, 2010 WL 1725066, at *7 

(6th Cir. 2010) (internal quotation omitted). The United States Court of Appeals 

for the Sixth Circuit has stressed the importance of the good-reason requirement: 

“The requirement of reason-giving exists, in part, to let claimants 

understand the disposition of their cases,” particularly in situations 

where a claimant knows that his physician has deemed him 

disabled and therefore “might be especially bewildered when told 

by an administrative bureaucracy that she is not, unless some 

reason for the agency’s decision is supplied.” Snell v. Apfel, 177 

F.3d 128, 134 (2d Cir.1999). The requirement also ensures that the 

ALJ applies the treating physician rule and permits meaningful 

review of the ALJ’s application of the rule. See Halloran v. 

Barnhart, 362 F.3d 28, 32–33 (2d Cir. 2004). 

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Wilson, 378 F.3d at 544–45. Thus, the reason-giving requirement is “particularly 

important when the treating physician has diagnosed the claimant as disabled.” 

Germany-Johnson v. Comm’r of Soc. Sec., 312 F. A’ppx 771, 777 (6th Cir. 2008) 

(citing Rogers, 486 F.3d at 242). 

i. Dr. Gray (State Agency Consultant) 

As noted above, the ALJ found Plaintiff’s RFC to include light work, with 

occasional lifting and carrying of 20 pounds and frequently lifting and carrying of 

10 pounds, with a sit or stand option at any point throughout the work day, and 

limited to an unskilled job. R. at 16. In arriving at this finding, the ALJ gave great 

weight to the opinions of state agency consultant, Natalie Gray, M.D. R. at 21, 

361-363. Specifically, Dr. Gray assessed Plaintiff’s physical RFC, noting that his 

exertional limitations included occasionally lifting and/or carrying 20 pounds, 

frequently lifting and/or carrying 10 pounds, standing and/or walking for a total of 

4 hours, sitting for a total of approximately 6 hours in an 8-hour workday and that 

a cane was not medically necessary but may be used as needed for pain. R. at 362. 

Dr. Gray also listed several postural limitations. R. at 362-363. After citing Dr. 

Gray’s opinion, the ALJ “added additional limitations of having [a] sit or stand 

option in an eight-hour workday and limited to unskilled work to accommodate the 

claimant’s subjective complaints.” R. at 21. 

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Plaintiff claims the ALJ erred in attributing great weight to Dr. Gray’s 

opinion, noting that her conclusions (R. at 362) were not consistent with light work 

but, rather, demonstrate a capacity for sedentary work. DE 10 at 18, 21-22, 34.4

 

In support of this statement, Plaintiff cites, in part, the “Assessment of Vocational 

Factors,” which appears to have been offered by Christina Clark on October 13, 

2011 and lists Plaintiff’s maximum sustained work capability as sedentary. R. at 

364-365. Moreover, Plaintiff contends that he “did not even have the capacity to 

perform sedentary work activity, 8 hours a day, 5 days a week.” DE 10 at 22.5

 

Interestingly, the ALJ’s determination states that Dr. Gray opined that 

Plaintiff is limited to light work. R. at 21. However, the Court did not locate such 

a conclusion within Dr. Gray’s physical RFC assessment (R. at 362-363). Instead, 

the Court assumes the ALJ found Dr. Gray’s opinions to be consistent with 20 

C.F.R. § 404.1567(b).6

 Thus, I agree with the Commissioner that Plaintiff is 

 

4 “To determine the physical exertion requirements of work in the national 

economy, we classify jobs as sedentary, light, medium, heavy, and very heavy.” 

20 C.F.R. § 404.1567.

5 “Sedentary work involves lifting no more than 10 pounds at a time and 

occasionally lifting or carrying articles like docket files, ledgers, and small tools. 

Although a sedentary job is defined as one which involves sitting, a certain amount 

of walking and standing is often necessary in carrying out job duties. Jobs are 

sedentary if walking and standing are required occasionally and other sedentary 

criteria are met.” 20 CFR § 404.1567(a).

6 “Light work involves 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 

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actually challenging the ALJ’s interpretation of Dr. Gray’s opinion, rather than the 

weight assigned to it. See DE 10 at 21-22, DE 13 at 8. 

Nonetheless, as the Commissioner points out, the ALJ adopted the 

limitations of occasionally lifting and carrying 20 pounds and frequently lifting and 

carrying 10 pounds (R. at 16), which is consistent with Dr. Gray’s exertional 

limitations in those categories (R. at 362) and is also consistent with those 

categories in 20 C.F.R. § 404.1567(b)’s description of light work. Moreover, the 

ALJ’s RFC contains the limitation of a sit or stand at will option, which 

accommodates Dr. Gray’s exertional limitations of standing and/or walking for a 

total of 4 hours and sitting for a total of approximately 6 hours in an 8-hour 

workday (R. at 362). Thus, the inconsistency between the standing, walking and 

sitting provisions of a full-range of light work7

 and Dr. Gray’s exertional 

limitations for standing, walking and sitting was cured by the addition of a sit or 

stand option at any point throughout the workday. 

 

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 CFR § 404.1567(b). 

7 “Since frequent lifting or carrying requires being on one's feet up to two-thirds of 

a workday, the full range of light work requires standing or walking, off and on, 

for a total of approximately 6 hours of an 8-hour workday. Sitting may occur 

intermittently during the remaining time.” SSR 83-10, 1983 WL 31251, 6 (1983). 

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ii. Dr. Cherwin (Plaintiff’s Knee Surgeon) 

Plaintiff contends that the ALJ gave “no weight” to the permanent 

restrictions listed by Dr. Cherwin on November 15, 2006. See DE 10 at 17-18, 21, 

23; R. at 195. Specifically, Dr. Cherwin remarked: “no slopes, uneven ground, no 

ladders, no shoveling, no kneeling, no side to side movements, no climbing more 

than 4 stairs[.]” R. at 195. 

However, within the October 2011 Disability Determination Explanation, 

“Assessment of Policy Issues,” it appears that Dr. Gray considered the November 

15, 2006 restrictions (R. at 195), noting that, “[t]his is mostly in line [with] 

typical[] restrictions standardly advised.” R. at 361-362. Within the physical RFC 

assessment portion of Dr. Gray’s review, she additionally notes that, “Cane is not 

medically necessary, but may be used prn [i.e., as necessary for] pain[,]” and 

further that, “Even when considering all surgeries, there were no prolonged periods 

of non-weight bearing.” R. at 362-363. All of this appears to have been considered 

by the ALJ in his own RFC assessment. R. at 21 (citing Ex. 10F, pp. 7-9 [R. at 

361-363]). 

Moreover, with respect to the effects of postural-manipulative impairments 

on the occupational base, the regulations provide, “[u]sual everyday activities, both 

at home and at work, include ascending or descending ramps or a few stairs and 

maintaining body equilibrium while doing so. These activities are required more 

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in some jobs than in others, and they may be critical in some occupations. Where a 

person has some limitation in climbing and balancing and it is the only limitation, 

it would not ordinarily have a significant impact on the broad world of work.” 

SSR 85-15, 1985 WL 56857, *6 (1985). Plaintiff has not shown that the 

limitations imposed by Dr. Cherwin on November 15, 2006 (R. at 195) were more 

restrictive than the ALJ’s RFC finding that Plaintiff could perform light work with 

a “sit or stand option at any point throughout the workday” limitation (R. at 16). 

iii. Lisa Jo Opperman (Plaintiff’s Wife) 

The ALJ assigned little weight to the statements of Lisa Joe Opperman, 

Plaintiff’s wife, found in the July 7, 2011 function report (R. at 104-111). R. at 18-

19. Among other things, Mrs. Opperman noted that Plaintiff “can only lift about 

25-50” pounds and can walk approximately 50 yards. R. at 109. She also 

indicated that Plaintiff uses a cane and a brace/splint. R. at 110. 

Plaintiff contends that the ALJ did not give proper weight to Mrs. 

Opperman’s report. DE 10 at 31, 34. However, the ALJ explained that he 

assigned little weight to Mrs. Opperman’s statements because she is not considered 

a disinterested third party, and also because the statements were inconsistent with 

the preponderance of the objective clinical and diagnostic medical evidence and 

the record as a whole. R. at 19. 

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“In considering evidence from ‘non-medical sources’ who have not seen the 

individual in a professional capacity in connection with their impairments, such as 

spouses, parents, friends, and neighbors, it would be appropriate to consider such 

factors as the nature and extent of the relationship, whether the evidence is 

consistent with other evidence, and any other factors that tend to support or refute 

the evidence.” SSR 06-03p, 2006 WL 2329939, 6 (Aug. 9, 2006) (emphasis 

added). Thus, the ALJ’s evaluation of Mrs. Opperman’s relationship with Plaintiff 

and the consistency of her statements with other evidence is permitted by SSR 06-

03p. 

iv. Michael G. Sperl, M.D.8

 

In support of his claim that he has reached maximum medical improvement, 

Plaintiff refers to the May 25, 2010 letter of Michael G. Sperl, M.D. (DE 10 at 16, 

19, R. at 588-590). Therein, Dr. Sperl stated: 

The patient has basically reached maximum medical improvement. It 

is doubtful that any type of additional surgical intervention, injections, 

therapy and/or testing would be of significant clinical efficacy and, as 

such, there is little else to offer the patient other than conservative 

modalities entailing exercises as well as the continued utilization of a 

stabilizing knee brace. 

R. at 590. However, Dr. Sperl continued: 

From a functional/vocational standpoint, the patient again is limited. I 

do not feel that he could perform his unrestricted employment duties. 

The patient again requires restrictions in terms of avoiding prolonged 

 

8 See DE 10-1 at 4-7 (Dr. Sperl’s curriculum vitae).

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periods of standing, walking, squatting, crawling, and/or climbing 

activities given the residual symptoms and findings pertaining to the 

right knee proper. 

Id. (emphasis added). 

 Noticeably, Dr. Sperl does not state that Plaintiff cannot perform any

employment duties, nor would it be within his province to do so. To the contrary, 

the quoted material suggests that Plaintiff can work, albeit subject to restrictions. 

As previously noted, the ALJ’s RFC finding includes a sit or stand option at any 

point throughout the day. R. at 16. Thus, the limitations contained in the RFC 

appear to be appropriate.9

 

b. Credibility 

Plaintiff argues that the ALJ “failed to properly assess the plaintiff's 

pain, limitations and credibility.” DE 10 at 1 ¶ 2. The United States Court of 

Appeals for the Sixth Circuit provides the following with regard to credibility 

assessments: 

Where the symptoms and not the underlying condition form the basis 

of the disability claim, a two-part analysis is used in evaluating 

complaints of disabling pain. 20 C.F.R. § 416.929(a); Buxton v. 

 

9 Moreover, crawling and crouching would be rare occurrences in light work. See 

SSR 85-15, 1985 WL 56857, 7 (“crawling on hands and knees and feet is a 

relatively rare activity even in arduous work, and limitations on the ability to crawl 

would be of little significance in the broad world of work.”), SSR 83-14, 1983 WL 

31254, 2 (1983) (“to perform substantially all of the exertional requirements of 

most sedentary and light jobs, a person would not need to crouch and would need 

to stoop only occasionally (from very little up to one-third of the time, depending 

on the particular job).”).

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Halter, 246 F.3d 762, 773 (6th Cir. 2001); Felisky v. Bowen, 35 F.3d 

1027, 1038–39 (6th Cir. 1994). First, the ALJ will ask whether there is 

an underlying medically determinable physical impairment that could 

reasonably be expected to produce the claimant's symptoms. 20 

C.F.R. § 416.929(a). Second, if the ALJ finds that such an impairment 

exists, then he must evaluate the intensity, persistence, and limiting 

effects of the symptoms on the individual's ability to do basic work 

activities. Id. 

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007). 

“The ALJ's assessment of credibility is entitled to great weight and 

deference, since he [or she] had the opportunity to observe the witness's 

demeanor.” Infantado v. Astrue, 263 F. App’x 469, 475 (6th Cir. 2008). 

Nevertheless, “an ALJ's assessment of a claimant's credibility must be supported 

by substantial evidence.” Walters v. Comm'r Soc. Sec., 127 F.3d 525, 531 (6th Cir. 

1997). “Discounting credibility to a certain degree is appropriate where an ALJ 

finds contradictions among the medical reports, claimant's testimony, and other 

evidence.” Walters, 127 F.3d at 531. 

The ALJ did not find Plaintiff fully credible. For example, the ALJ stated 

that Plaintiff’s “allegations concerning the intensity, persistence and limiting 

effects of [his] symptoms [were] less than fully credible.” R. at 17. Referring to 

the July 7, 2011 function report completed by Plaintiff (R. at 120-127), the ALJ 

noted that “[d]espite his impairment, the claimant has engaged in a somewhat 

normal level of daily activity and interaction.” The ALJ further stated: 

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The lack of more aggressive treatment, or additional surgical 

intervention or even a referral to a specialist suggests the claimant’s 

symptoms and limitations were not as severe as he alleged. The 

credibility of the claimant’s allegations regarding the severity of his 

symptoms and limitations is diminished because those allegations are 

greater than expected in light of the objective evidence of record. 

R. at 18. In addition, the ALJ noted his observations of Plaintiff during the 

hearing: 

The claimant did not demonstrate or manifest any difficulty 

concentrating during the hearing. During the time when the claimant 

was being questioned, the claimant appeared to process the questions 

without difficulty, and to respond to the questions appropriately and 

without delay. The claimant paid attention throughout the hearing. 

Id. 

Here, the Court should conclude that the ALJ’s assessment of Plaintiff’s 

credibility was within his discretion and supported by substantial evidence. To 

begin, it was appropriate for the ALJ to comment upon his observations of Plaintiff 

during the hearing. As the Sixth Circuit has instructed, “[t]he ALJ’s assessment of 

credibility is entitled to great weight and deference, since he [or she] had the 

opportunity to observe the witness’s demeanor.” Infantado v. Astrue, 263 F. App’x 

469, 475 (6th Cir. 2008); see also Beavers v. Sec’y of Health, Ed., and Welfare, 

577 F.2d 383, 387 (6th Cir. 1978) (“The opportunity to observe the demeanor of a 

witness, evaluating what is said in the light of how it is said, and considering how 

it fits with the rest of the evidence gathered before the person who is conducting 

the hearing, is invaluable, and should not be discarded lightly.”). 

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Moreover, there is evidence to support the ALJ’s exertional findings that 

Plaintiff could occasionally lift and carry 20 pounds and frequently lift and carry 

10 pounds. R. at 16. To be sure, Plaintiff contends that the ALJ “incorrectly 

assumed that the plaintiff’s ability to do some physical activity equated with an 

ability to maintain employment.” DE 10 at 26. Plaintiff contends that “an 

individual’s ability to do some activity does not diminish his credibility regarding 

pain and limitations.” DE 10 at 27. However, Plaintiff’s wife noted that Plaintiff 

can lift about 25-50 pounds, and Plaintiff himself noted that he “can lift about 50 

[pounds] but can’t walk with it very far . . . .” See R. at 18, 109, 125. It was 

certainly within the realm of reason for the ALJ to utilize and include this 

information in his RFC assessment and for him to conclude that it undermines 

Plaintiff’s credibility. 

Moreover, the ALJ acknowledged his compliance with SSR 96-7p. R. at 16. 

“One strong indication of the credibility of an individual's statements is their 

consistency, both internally and with other information in the case record. The 

adjudicator must consider such factors as: . . . The degree to which the individual's 

statements are consistent with the medical signs and laboratory findings and other 

information provided by medical sources, including information about medical 

history and treatment.” SSR 96-7, 1996 WL 374186, *5 (July 2, 1996) (emphasis 

added). A sampling of the record evidence shows: physical therapy discharge 

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notes from April 20, 2006 do not indicate atrophy or spasticity (R. at 414-430, 421 

(Ex. 11F)); notes from January 28, 2010 indicate “no evidence of erythema, 

edema,” and “[n]o palpable defect in the tendon . . . .” (R. at 277 (Ex. 6F)); 

Plaintiff’s admission that he can drive short distances, watches television, tries to 

take care of the house and swims (R. at 32, 48-49); a May 3, 2010 physical therapy 

discharge report by Sachin Desai, P.T., indicating “fair improvement,” noting that 

Plaintiff “[r]eports 25% improvement overall[,]” and showing “progressive 

improvement in spinal flexibility and functional strength[,]” (R. at 326); and 

imaging from September 24, 2008, March 17, 2009 and June 24, 2009 showing no 

evidence of interval hardware complication (R. at 261-262, 266 (Ex. 4F)). 

Given this “composite sketch” of the evidence, the ALJ’s assessment of 

Plaintiff’s credibility was well within the reasonable range of his discretion and is 

supported by substantial evidence, bearing in mind that this Court does 

“not...decide questions of credibility.” Bass, 499 F.3d at 509. 

c. Harmless error 

 Within his RFC finding, the ALJ stated, “The lack of more aggressive 

treatment, or additional surgical intervention or even a referral to a specialist 

suggests the claimant’s symptoms and limitations were not as severe as he 

alleged.” R. at 18. The ALJ further stated, “The treatment records reveal the 

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claimant received routine, conservative, and non-emergency treatment since the 

alleged onset date.” R. at 19. 

Plaintiff takes issue with these statements, using words such as “not 

accurate,” apparent “distortion,” “exaggeration,” and/or “mischaracterization.” See

DE 10 at 10-21. In conclusion, Plaintiff contends that “the ALJ erroneously found 

that the plaintiff was less than credible because of lack of objective findings, 

inconsistent statements, lack of more aggressive treatment, lack of referral to a 

specialist, and receipt of only routine, conservative and non-emergency treatment.” 

DE 10 at 33. Notwithstanding Plaintiff’s portrayal of the ALJ’s opinion, Plaintiff 

did, in fact, testify that in terms of ongoing medical treatment, he is “just holding 

off until they find a different – maybe a different procedure they can do.” R. at 38. 

Even if I assume, for the sake of argument, that the ALJ’s above 

characterization is an understatement of Plaintiff’s treatment, the Court should 

agree with the Commissioner, who asserts that: “while the ALJ may have 

understated the extent of Plaintiff’s treatment, any error is harmless[,] because . . . 

the ALJ gave great weight to the assessment of Dr. Gray, who specifically 

chronicled Plaintiff’s three knee surgeries and other treatment, but nevertheless 

concluded that Plaintiff could perform a limited range of light work ([R. at 21, 

363]).” DE 13 at 18. As discussed above, the ALJ’s RFC is consistent with Dr. 

Gray’s physical RFC assessment (see R. at 362-363). 

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2. Whether substantial evidence supports the ALJ’s Step 5 

finding? 

“A vocational expert's testimony concerning the availability of suitable work 

may constitute substantial evidence where the testimony is elicited in response to a 

hypothetical question that accurately sets forth the plaintiff's physical and mental 

impairments.” Smith v. Halter, 307 F.3d 377, 378 (6th Cir. 2001) (emphasis 

added). Plaintiff contends that the ALJ did not pose complete and accurate 

hypothetical questions to the VE. DE 10 at 31-33. Specifically, Plaintiff mentions 

the absence of Plaintiff’s need for a cane or knee brace, as well as the permanent 

restrictions of no slopes, no uneven ground, no side to side movement and no 

climbing more than 4 stairs, as set forth by Dr. Cherwin on November 15, 2006. 

DE 10 at 31, R. at 195. The three jobs identified by the VE are addressed in turn.

a. Flagger 

During the February 13, 2013 hearing, the ALJ and VE discussed the job of 

a “flagger,” explained as a person who holds up a sign telling traffic to “stop” or 

“slow” at a construction site on a road. The VE testified there were 68,740 such 

full time jobs nationally and 1,400 such full-time jobs statewide. Although the 

ALJ questioned whether people are hired solely to be a flagger, the VE stated she 

knew employers “who hire flaggers specifically for flagging.” R. at 54. The VE 

further testified that she has seen the job done with a sit/stand option, if the 

employer was willing. R. at 55. 

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Plaintiff contends that the VE would have precluded the flagger job if the 

ALJ had included Plaintiff’s need to use a cane and knee brace, as well as the 

permanent restrictions of no uneven ground or side to side movements. DE 10 at 

32-33. Plaintiff takes the position that “[i]t is difficult to imagine a road 

construction site that has no uneven ground, no slopes and no side to side 

movement.” DE 10 at 33. This is really a challenge to the ALJ’s decision not to 

include these limitations in the RFC finding. 

As for a cane, the ALJ cited Dr. Leung’s March 25, 2010 notes, which 

indicate Plaintiff “does have a cane, but does not use it.” R. at 20, 270. Moreover, 

as noted above, Dr. Gray’s October 12, 2011 physical RFC assessment states that a 

“[c]ane is not medically necessary, but may be used [as needed for] pain.” R. at 

362. Thus, it was well within the ALJ’s discretion not to expressly include this 

particular restriction. Moreover, the sit/stand at will option, which was included in 

the hypothetical, accommodates for this. Furthermore, Plaintiff has not shown that 

the restrictions regarding uneven ground or side-to-side movement or the need to 

wear a knee brace were more restrictive than the ALJ’s RFC finding, which limited 

him to light jobs allowing him to sit or stand at will. See Shinseki v. Sanders, 556 

U.S. 396, 409 (2009) (“[T]he burden of showing that an error is harmful normally 

falls upon the party attacking the agency's determination.”); Wilson v. 

Commissioner of Social Sec., 378 F.3d 541, 547 (6th Cir. 2004) (“There is also the 

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possibility that if the Commissioner adopts the opinion of the treating source or 

makes findings consistent with the opinion, it may be irrelevant that the ALJ did 

not give weight to the treating physician's opinion, and the failure to give reasons 

for not giving such weight is correspondingly irrelevant.”). 

b. Router and Inspector 

The ALJ’s Step 5 determination also identified the occupations of router and 

inspector as existing jobs that Plaintiff is capable of performing. R. at 22-23. 

Plaintiff has failed to show this Court that any limitations would prevent him from 

performing these specific jobs. At the hearing, the VE described a “router” as a 

person marking packages for delivery, and testified this was light, unskilled work 

for which there were 53,126 full-time jobs nationally and 2,073 full-time jobs in 

the State of Michigan. R. at 55. Moreover, the VE described the “inspector” job 

as light, unskilled work for which there were 20,984 full-time jobs nationally and 

974 full-time jobs in the State of Michigan. R. at 56. 

Plaintiff’s motion does not address the VE’s testimony regarding the 

proposed jobs of “router” and “inspector.” Nor does he challenge the ALJ’s 

finding that these jobs “existed in significant numbers.10 Accordingly, the Court 

 

10 The Sixth Circuit has acknowledged, “the difficult task of enumerating exactly 

what constitutes a ‘significant number[,]’” noting that the Court “cannot set forth 

one special number which is to be the boundary between a ‘significant number’ 

and an insignificant number of jobs.” Hall v. Bowen, 837 F.2d 272, 275 (6th Cir. 

1988).

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should agree with the Commissioner that “even assuming, arguendo, that the 

flagger job could not be performed, the error would be harmless[,] because a 

significant number of jobs remain that Plaintiff could perform.” DE 13 at 21 n.3. 

G. Conclusion

 It is the claimant’s burden to prove his RFC. See 20 C.F.R. § 416.912(a);11

Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001).12 Plaintiff has not satisfied his 

burden to challenge the ALJ’s RFC finding. Furthermore, from a review of the 

record as a whole, the Undersigned concludes that substantial evidence supports 

the ALJ’s decision denying benefits. Accordingly, it is RECOMMENDED that 

the Court DENY Plaintiff’s motion for summary judgment, GRANT Defendant’s 

motion for summary judgment, and AFFIRM the Commissioner of Social 

Security’s decision. 

III. PROCEDURE ON OBJECTIONS

 The parties to this action may object to and seek review of this Report and 

Recommendation, but are required to file any objections within 14 days of service, 

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 

72.1(d). Failure to file specific objections constitutes a waiver of any further right 

 

11 “In general, you have to prove to us that you are blind or disabled.” 20 C.F.R. 

416.912(a). 

12 “If the impairment does not meet or equal a listed impairment, the fourth step 

requires the claimant to prove that she is incapable of performing work that she has 

done in the past.” Foster, 279 F.3d at 354 (citing 20 C.F.R. § 404.1520(e)). 

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of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health & 

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some 

issues but fail to raise others with specificity will not preserve all the objections a 

party might have to this Report and Recommendation. Willis v. Sec’y of Health & 

Human Servs., 932 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of 

Teachers Local 231, 829 F.2d 1370, 1273 (6th Cir. 1987). Pursuant to Local Rule 

72.1(d)(2), any objections must be served on this Magistrate Judge. 

 Any objections must be labeled as “Objection No. 1,” and “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. 

Dated: July 16, 2016 s/Anthony P. Patti 

Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

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I hereby certify that a copy of the foregoing document was sent to parties of record 

on July 16, 2015, electronically and/or by U.S. Mail. 

 s/Michael Williams 

 Case Manager for the 

Honorable Anthony P. Patti 

 

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