UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Caleb Sharp, 

Plaintiff, 

v. 

Commissioner of Social Security, 

Defendant. 

________________________________/

Case No. 14-cv-13703 

Judith E. Levy 

United States District Judge 

Mag. Judge Patricia T. Morris 

OPINION AND ORDER DENYING PLAINTIFF’S OBJECTIONS 

[25] AND ADOPTING THE MAGISTRATE JUDGE’S REPORT 

AND RECOMMENDATION [24] TO GRANT DEFENDANT’S 

MOTION FOR SUMMARY JUDGMENT [23] AND DENY 

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [9] 

On March 9, 2016, the Magistrate Judge filed her Report and 

Recommendation, finding that substantial evidence supports the 

Commissioner of Social Security’s determination that plaintiff Caleb 

Sharp is not disabled and recommending that the denial of benefits be 

affirmed. Plaintiff timely filed objections on March 23, 2016, and the 

Commissioner responded on April 3, 2016. For the reasons set forth 

below, plaintiff’s objections are denied and the Report and 

Recommendation is adopted in full. 

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I. Background 

Plaintiff was twenty-nine years old when he applied for benefits 

on March 5, 2012, alleging that he became disabled on December 25, 

2010. (Dkt. 7-5 at 10.) His employment history includes work as a 

sales and stock person at Walmart for less than one year, a selfemployed secretary for four years, and a stock and repair worker at a 

furniture store for less than one year. (Dkt. 7-6 at 8.) At the initial 

administrative stage, the Commissioner considered whether plaintiff 

was disabled by discogenic and degenerative back disorders and other 

unspecified arthropathies. (Dkt. 7-3 at 3.) These impairments were 

found not to be disabling, alone or in combination. (Id. at 4.) Plaintiff 

asked for a hearing in front of an Administrative Law Judge, who would 

consider the application de novo. 

ALJ Joanne Adamczyk held a hearing on May 14, 2013. (Dkt. 7-2 

at 47-77.) In her decision filed on May 31, 2013, the ALJ found that 

Plaintiff was not disabled. (Dkt. 7-2 at 34-47.) The ALJ’s decision 

became the Commissioner’s final decision on September 26, 2014, after 

the Appeals Council reviewed additional exhibits and ultimately denied 

plaintiff’s request for review. (Dkt. 7-7 at 1-7, 140-66); see Wilson v. 

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Comm’r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004). Plaintiff filed 

suit in this Court on September 24, 2014. (Dkt. 1.) 

The Court finds that plaintiff’s relevant medical history was 

accurately described by the Magistrate Judge. (See Dkt. 24 at 8-14.) 

The Court adopts the factual background as set forth by the Magistrate 

Judge and expands where appropriate.1

II. Standard of Review 

An applicant who is not satisfied with the Commissioner’s final 

decision may obtain review in federal district court. 42 U.S.C. § 405(g). 

The district court “must affirm the Commissioner’s conclusions absent a 

determination that the Commissioner has failed to apply the correct 

legal standard or has made findings of fact unsupported by substantial 

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

591, 595 (6th Cir. 2005) (internal quotation marks omitted). The Court 

may affirm, modify, or reverse the Commissioner’s decision, and may 

also choose to remand the case for rehearing when appropriate. 42 

U.S.C. § 405(g). 

 

1 The Court did not review the additional evidence that was presented to the 

Appeals Council, because plaintiff’s request for review was denied and that evidence 

was not before the ALJ. See Cline v. Comm’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 

1996); Cotton v. Sullivan, 2 F.3d 692, 696 (6th Cir. 1993).

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The Commissioner’s findings of fact are given substantial 

deference on review and are conclusive if supported by substantial 

evidence. Barker v. Shalala, 40 F.3d 789, 795 (6th Cir. 1994); 42 U.S.C. 

§ 405(g). Substantial evidence is “more than a scintilla but less than a 

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

accept as adequate to support a conclusion.” Rogers v. Comm’r of Soc. 

Sec., 486 F.3d 234, 241 (6th Cir. 2007). If there is substantial evidence 

to support the Commissioner’s decision, the district court must affirm it 

even if substantial evidence also supports a contrary conclusion. Bass 

v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Wright v. Massanari, 

321 F.3d 611, 614 (6th Cir. 2003); see also Cutlip v. Sec’y of Health and 

Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (if the decision is 

supported by substantial evidence, “it must be affirmed even if the 

reviewing court would decide the matter differently . . . and even if 

substantial evidence also supports the opposite conclusion”). 

When deciding whether there is substantial evidence to support 

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

examination of the record and should consider the record as a whole. 

Bass, 499 F.3d at 512-13; Wyatt v. Sec’y of Health and Human Servs., 

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974 F.2d 680, 683 (6th Cir. 1992). However, neither the Commissioner 

nor the reviewing court must 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). 

When a Magistrate Judge has submitted a Report and 

Recommendation and a party has filed timely objections, the district 

court conducts a de novo review of those parts of the Report and 

Recommendation to which the party objects. 28 U.S.C. § 636(b)(1)(C). 

III. Analysis 

a. Objection No. 1 

Plaintiff argues that the Magistrate Judge “should have engaged 

and addressed the specific legal challenges raised by [p]laintiff rather 

than create[] post hoc rationalizations for the ALJ’s conclusions and 

look[] for substantial evidence to justify the ALJ’s ultimate decision.” 

(Dkt. 25 at 15.) Plaintiff seems to object to the Magistrate Judge’s 

finding that “the ALJ utilized the proper legal standard in his 

application of the Commissioner’s five-step disability analysis to 

[p]laintiff’s claim,” before turning to “whether substantial evidence 

supports the ALJ’s decision.” (Dkt. 24 at 14.) 

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Plaintiff is patently incorrect. The Court “must affirm the 

Commissioner’s conclusions absent a determination that the 

Commissioner has failed to apply the correct legal standard or has 

made findings of fact unsupported by substantial evidence in the 

record.” Longworth, 402 F.3d at 595. That is what the Magistrate 

Judge did here. She first found that the appropriate legal standard was 

applied by the ALJ, and then turned to the record to see “whether 

substantial evidence supports the ALJ’s decision.” Thus reversal or 

remand on this point is not warranted. 

b. Objection No. 2 

Plaintiff argues that the ALJ “failed to properly identify the 

[p]laintiff’s Residual Functional Capacity by properly complying with 

SSR 96-8p, 96-9p[,] and 02-1p.” (Dkt. 25 at 5-6.) According to plaintiff, 

the ALJ “failed to apply SSR 96-8p by specifically evaluating and 

explaining how [plaintiff] retains the ability to work a regular work 

schedule on a sustained and continuous basis, eight hours a day, five 

days a week, notwithstanding his lumbar radiculopathy, fractured 

vertebrae, need to lie down, need to be off task, and his mental 

limitations secondary to his pain, fatigue, insomnia, and medications.” 

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(Id. at 4.) Plaintiff argues that the ALJ “failed to even mention SSR 96-

8p in her decision” or “provide a narrative discussion or explanation as 

to how [plaintiff] can sustain work on a regular and continuous basis.” 

(Id. at 5-6.) 

The ALJ did in fact cite SSR 96-8p. (Id. at 35-36 (“An individual’s 

residual functional capacity is his ability to do physical and mental 

work activities on a sustained basis despite limitations from his 

impairments.”).) But plaintiff is correct that the ALJ is required to do 

more than that. She must also include a “narrative discussion” of “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.” SSR 96-8p, 

1996 SSR LEXIS 5, at *19 (July 2, 1996) (footnote omitted). 

 The ALJ concluded as follows: 

[Plaintiff] has the residual functional capacity to perform 

sedentary work as defined in 20 C[.]F[.]R[.] 404.1567(a) and 

416.967(a) except [plaintiff] requires a sit/stand option 

approximately once an hour to stretch. [Plaintiff] cannot 

operate foot controls. [Plaintiff] cannot climb ladders, ropes, 

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or scaffolds. [Plaintiff] can occasionally climb ramps or 

stairs. Because of [plaintiff]’s allegations of symptoms of 

gout, [plaintiff] cannot kneel, crouch, or crawl. [Plaintiff] 

can perform tasks that require frequent, but not constant, 

fine manipulation. [Plaintiff] must avoid work around 

moving machinery or unprotected heights. Because of 

chronic pain, [plaintiff] is limited to unskilled work, defined 

as simple, routine, repetitive tasks with no production rate 

or pace work, such as on an assembly line. 

(Dkt. 7-2 at 38.) 

However, the ALJ did not provide a narrative discussion 

regarding plaintiff’s “ability to perform sustained work activities in an 

ordinary setting on a regular and continuing basis.” To be sure, she 

recommends restrictions based on plaintiff’s ability to lift up to seventy 

pounds and other activities that require exertion. (Dkt. 7-2 at 40-41 

(considering functional abilities evaluation performed by Jodie 

Sarginson, residual functional capacity assessment of State agency 

examiner Russell E. Holmes, M.D., and other medical records of 

plaintiff’s treating physicians).) But the residual functional capacity “is 

defined as the most, not the least, [plaintiff] can do despite his 

impairments.” King v. Comm’r of Soc. Sec., No. 14-cv-14330, 2015 U.S. 

Dist. LEXIS 176662, at *13 (E.D. Mich. Dec. 3, 2015) (citing 20 C.F.R. 

§§ 404.1545(a), 416.945(a)). 

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Still, this is not necessarily fatal to the ALJ’s decision. See Payne 

v. Comm’r of Soc. Sec., 402 F. App’x 109, 118 (6th Cir. 2010) (“The only 

thing arguably missing from the ALJ’s decision is a specific discussion 

of Plaintiff’s ability to sustain work in an ordinary day, but it is implicit 

in her opinion that this ability is only moderately affected by Plaintiff’s 

[] impairments.”). Here, the ALJ noted that plaintiff’s “final safe weight 

lifting ability was determined to be 70 pounds,” as determined by Jodie 

Sarginson, an occupational therapist, who performed a functional 

abilities evaluation. (Dkt. 7-2 at 40.) And the ALJ noted that plaintiff 

“could frequently operate bilateral foot controls,” “occasionally climb 

ladders, ropes, and scaffolds,” and “occasionally stoop and crouch,” as 

determined by Russell E. Holmes, M.D., who performed a physical 

residual functional capacity assessment. (Id. at 41.) Moreover, the ALJ 

noted that Dr. Jawad Shah, M.D., one of plaintiff’s treating physicians, 

“recommended a 15 to 20-pound work weight restriction.” (Id. at 40.) 

Despite all this, the ALJ concluded that plaintiff’s “residual 

functional capacity assessment is somewhat more restrictive and limits 

[plaintiff] to lifting no more than 10 pounds.” (Id. at 40.) The ALJ 

further notes in the residual functional capacity assessment that 

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plaintiff must be able to sit and stand “approximately once an hour to 

stretch,” and “cannot operate foot controls” or “climb ladders, ropes, or 

scaffolds.” 

The ALJ’s finding as to residual functional capacity is much 

narrower than what the functional abilities evaluation, physical 

residual functional capacity assessment, and treating physician 

recommendations provide plaintiff can do. Even though the ALJ’s 

narrative lacks “a specific discussion of [p]laintiff’s ability to sustain 

work in an ordinary day,” the ALJ’s narrative is sufficient, because “it is 

implicit in her opinion” that plaintiff can perform sedentary work on a 

sustained basis if the work is restricted as provided in the residual 

functional capacity assessment determined by the ALJ. See Payne, 402 

F. App’x at 118. For these reasons, reversal or remand on this point is 

not warranted. 

c. Objection No. 3 

Plaintiff argues that the ALJ “failed to evaluate whether 

[p]laintiff possesses the mental capacity for sustained and continuous 

employment.” (Dkt. 25 at 8.) According to plaintiff, the Magistrate 

Judge “fails to address the ALJ’s failure to specifically evaluate and 

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explain how [plaintiff] retains these basic mental abilities required of 

employment and the capacity to maintain a normal work schedule.” 

(Id. at 9.) 

But plaintiff never claimed that he lacked the mental capacity for 

sustained and continuous employment. “Through step four, the 

claimant bears the burden of proving the existence and severity of 

limitations caused by h[is] impairments.” Jones v. Comm’r of Soc. Sec., 

336 F.3d 469, 474 (6th Cir. 2003). The ALJ was not required to address 

an issue that was not first raised by plaintiff. Thus reversal or remand 

on this point is not warranted. 

d. Objection No. 4 

Plaintiff argues that the “Magistrate Judge significantly 

understated the extent of [plaintiff]’s low back pathology as described in 

pain management doctor Dr. Rao’s records, and in neurosurgeon Dr. 

Shah’s records.” (Dkt. 25 at 10.) According to plaintiff, the “ALJ’s 

summation of the extent of [plaintiff]’s back pathology and associated 

symptoms is misleading, inaccurate[,] and when the record is read as a 

whole[,] there is not substantial evidence in the whole record to support 

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the idea that [plaintiff] is capable of employment on a sustained and 

continuous basis.” (Id. at 12.) 

 Plaintiff cites parts of the medical record that include recitations 

of his subjective statements of pain. For example, plaintiff highlight’s 

Dr. Rao’s recitation that plaintiff had complained of “numbness, 

tingling, muscle spasms[,] and sweating cold sensations,” and that 

“[p]ain increases with physical activity” and “is unbearable recurrence 

[sic] of persistent severe lower back pain radiating to the right hip and 

leg.” (Id. at 10.) Plaintiff also cites subjective complaints recited in Dr. 

Shah’s records that he had complained of “experiencing pain in his back 

on both sides” that had “become much worse,” including “numbness in 

right leg and constant weakness in his lower back,” and which had been 

exacerbated by “exercise, sitting, standing, walking, bending, pulling[,] 

and squatting.” (Id. at 11.) Dr. Shah recited that plaintiff “complains of 

pain sometimes going into his legs and sometimes losing his balance.” 

Plaintiff also notes that the record “includes a lumbar CT scan in 

July 2011 which revealed bilateral spondylolysis at L5, a central disc 

protrusion at L4-5, and a broad based disc herniation at L5-S1 which 

extends into the neural foramina bilaterally,” and an “MRI [that] 

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showed a disc protrusion and annular tear at L4-L5.” Plaintiff argues 

that “[t]he ALJ’s minimization of the [his] low back pathology is 

repeated by the Magistrate Judge by quoting isolated fragments from 

the record so as to create the misleading and inaccurate picture that 

[his] back is normal and that Dr. Rao released him to activity when in 

fact the record shows that surgery is contemplated once he loses 

weight.” (Id. at 11-12.) 

Plaintiff’s objection is without merit. The Magistrate Judge 

explicitly considered the CT scan that “showed ‘bilateral spondylolysis’ 

but ‘L5 without spondylolisthes[,] [sic]’ ‘[m]inor central disc protrusion 

at L4-L5[,]’ and ‘[f]airly prominent broad-based disc protrusion at L5-S1 

which extends to the neural foramina bilaterally, fairly extensively.’” 

(Dkt. 24 at 9.) The Magistrate Judge also noted that Dr. Rao “treated 

[p]laintiff with epidural steroid injections in June, July[,] and 

November, 2011,” for his pain. (Id. at 10.) Moreover, the Magistrate 

Judge highlighted that Dr. Shah “placed [p]laintiff on a ‘15-20 pound 

work weight restriction and told him that [he] would support [him] for 

disability if he needed a letter of support but . . . [Dr. Shah didn’t] 

recommend surgery at th[at] point.” (Id.) In addition to these records, 

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the ALJ also highlights many of the same recitations in her decision. 

(See Dkt. 7-2 at 39-40.) 

More to the point, the ALJ considered plaintiff’s subjective 

complaints of pain and physical limitations, but concluded that his 

“allegations regarding the limiting effects of his physical impairments 

are not wholly credible” because they were “not supported by the 

medical evidence of record.” (Dkt. 7-2 at 41.) 

While [plaintiff] complained of carpal tunnel syndrome and 

gout, the treatment records do not contain any evidence of 

these diagnoses. [Plaintiff] alleges severe back pain, yet the 

medical evidence of record reveals that he sought only 

sporadic treatment from specialists. He reported that 

injections and physical therapy helped, yet he discontinued 

pain management treatment and physical therapy almost 

one year [prior to his application]. [Plaintiff] was advised 

that weight loss would be necessary before surgery would be 

considered, despite having failed conservative treatment. 

(Id.) 

“It is of course for the ALJ, and not the reviewing court, to 

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

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

“However, the ALJ is not free to make credibility determinations based 

solely upon an intangible or intuitive notion about an individual’s 

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credibility.” Id. (internal quotation omitted). “Rather, such 

determinations must find support in the record.” Id.

Here, the ALJ based her determination on the lack of supporting 

objective medical evidence. And plaintiff, in his objection, does not 

point to anything new in the record that was not explicitly cited and 

considered by both the ALJ and the Magistrate Judge. Again, this 

Court’s duty is to decide whether substantial evidence supports the 

ALJ’s credibility determination, that is, whether there is “such relevant 

evidence as a reasonable mind might accept as adequate to support a 

conclusion.” Given the lack of any record diagnosis for plaintiff’s 

complaints of carpal tunnel or gout, and the fact that he did not seek 

treatment for severe back pain for over a year before filing for disability 

benefits, the ALJ’s conclusion that plaintiff’s subjective complaints of 

pain were not wholly credible is supported by substantial evidence. 

Thus reversal or remand on this point is not warranted. 

e. Objection No. 5 

Finally, plaintiff argues that “both the ALJ and the Magistrate 

Judge commit[ted] legal error for asserting that the opinion of the nonexamining physician[, Dr. Holmes,] who failed to review all the evidence 

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constituted substantial evidence justifying affirmance, particularly in 

light of the opinion of [plaintiff]’s treating neurosurgeon Dr. Shah who 

supported his application for disability benefits.” (Dkt. 25 at 13.) 

But as set forth above, the ALJ did not rely solely on the physical 

residual functional capacity assessment performed by Dr. Holmes. The 

ALJ also relied on the functional abilities evaluation of Jodie Sarginson. 

(Dkt. 7-2 at 40.) Moreover, although Dr. Shah supported plaintiff’s 

application for benefits, the more important determination was that Dr. 

Shah “recommended a 15 to 20-pound work weight restriction,” which is 

much less restrictive than the ALJ’s ultimate determination of residual 

functional capacity. 

Dr. Shah’s report also noted that “MRIs failed to show any 

significant neural impingement.” (Dkt. 7-7 at 105.) Dr. Shah noted 

that he wanted plaintiff “to be on a 15-20lb work weight restriction and 

told [plaintiff] that [he] would support [plaintiff] for disability if he 

needed a letter of support” but did not “recommend surgery at this 

point.” (Id.) Dr. Shah suggested that if plaintiff “require[d] any help 

with Pain Management he c[ould] also let [Dr. Shah] know and [he 

would] have [plaintiff] referred forward.” (Id.) As noted above, plaintiff 

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did not thereafter seek pain treatment for the year prior to filing his 

disability claim. Thus reversal or remand on this point is not 

warranted. 

IV. Conclusion 

For the reasons set forth above, plaintiff’s objections (Dkt. 25) are 

DENIED, the Magistrate Judge’s Report and Recommendation (Dkt. 

24) is ADOPTED in full, plaintiff’s motion for summary judgment as 

supplemented (Dkt. 9; Dkt. 15) is DENIED, and defendant’s motion for 

summary judgment as supplemented (Dkt. 11; Dkt. 23) is GRANTED. 

IT IS SO ORDERED. 

Dated: September 8, 2016 s/Judith E. Levy 

Ann Arbor, Michigan JUDITH E. LEVY 

United States District Judge 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s 

ECF System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on September 8, 2016. 

s/Felicia M. Moses 

FELICIA M. MOSES 

Case Manager 

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