UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

DEANNA JANE BRELINSKI, 

 Plaintiff, CIVIL ACTION NO. 14-13300 

 v. 

DISTRICT JUDGE STEPHEN J. MURPHY

MAGISTRATE JUDGE CHARLES E. BINDER

COMMISSIONER OF 

SOCIAL SECURITY, 

 Defendant. 

_______________________/ 

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

 

I. RECOMMENDATION: 

IT IS RECOMMENDED that Plaintiff's Motion for Summary Judgment be

DENIED, and that of Defendant GRANTED, as there is substantial evidence on the record

that claimant retained the residual functional capacity for a limited range of light work.

II. REPORT

A. Introduction and Procedural History

Plaintiff filed an application for Social Security Disability Income Benefits (DIB) on

September 7, 2011, alleging that she had been disabled and unable to work since July 1,

2010, at age 50, due to severe back, neck and left foot pain. Benefits were initially denied by

the Social SecurityAdministration (SSA). A requested de novo hearing was held on February

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5, 2013, before Administrative Law Judge (ALJ) Kevin W. Fallis. The ALJ subsequently

found that the claimant was not entitled to disability benefits because she retained the ability

to perform a restricted range of light work providing a sit-stand option where she would not

have to perform any overhead reaching or operate foot controls. The Administrative Law

Judge further restricted claimant from jobs requiring any pushing, pulling or the climbing of

ladders, ropes and scaffolds. In addition, claimant could not be exposed to excessive

vibration, hazardous moving machinery or unprotected heights. The Appeals Council

declined to review that decision and Plaintiff commenced the instant action for judicial

review of the denial of benefits. The parties have filed Motions for Summary Judgment and

the issue for review is whether Defendant's denial of benefits was supported by substantial

evidence on the record. 

Claimant was 52 years old at the time of the administrative hearing. She had been

graduated from high school, and had been employed as a housekeeper, parts inspector,

production worker and lunch monitor during the relevant past (TR 60-61). Plaintiff alleged

that she was disabled and unable to return to work due to severe back and neck pain

following a 2010 work injury (TR 29, 149). Despite undergoing back and neck surgeries,

claimant continued to experience chronic pain that radiated down into her left foot (TR 32,

34-35). She allegedly was unable to stand or walk for prolonged periods (TR 35-36).

Claimant estimated that she could not stand or sit for longer than ten minutes, walk more than

fifty feet or lift anything heavier than her three pound purse (TR 37-40). She was unable to

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crouch, kneel, crawl or climb a ladder (TR 40-41). As a result of the chronic pain, Plaintiff

explained that she was depressed and had frequent crying spells (TR 42). Claimant

admittedly was able to cook, go grocery shopping, drive an automobile, read for pleasure,

and occasionally attend church (TR 47-48, 51).

A Vocational Expert, MaryEverts, classified Plaintiff’s past work as light to medium,

unskilled activity (TR 61). The witness testified that, if claimant were capable of light work,

there were numerous unskilled assembly, surveillance monitor, information clerk and

inspection jobs that she could perform with minimal vocational adjustment. These jobs

involved performing repetitive tasks in a work environment free of fast paced production

requirements. They allowed a sit-stand option at will, provided a worker was not off task

more than 10 percent of the time . There would be no requirement to perform any overhead 1

reaching, or to frequently balance, stoop, kneel, crouch or crawl. Workers were not exposed

to excessive vibrations, moving machinery or unprotected heights (TR 62-65).

B. ALJ’s Findings

The Administrative Law Judge found that Plaintiff was impaired as a result of

degenerative disc disease of the lumbar and cervical spine and arthritis of the left foot, but

that she did not have an impairment or combination of impairments severe enough to meet

or equal the Listing of Impairments. The ALJ determined that claimant required a sit-stand

The witness testified that all work would be precluded if claimant needed to be off task more than 20 1

percent of the time in order to rest, or would miss more than two workdays a month in order to go to the

doctor (TR 65).

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option at will, but recognized that she could not be off-task more than ten percent of the work

period. She was found to be unable to perform any overhead reaching, operate foot controls,

or climb ladders, ropes and scaffolds. The ALJ further restricted claimant to jobs that did not

expose her to excessive vibrations, hazardous machinery or unprotected heights. 

Nevertheless, the Law Judge found that Plaintiff retained the residual functional capacity to

perform a significant number of light jobs, within those limitations, as identified by the

Vocational Expert (TR 13-19). 

C. Standard of Review

Pursuant to 42 U.S.C. § 405(g), this court has jurisdiction to review the

Commissioner's decisions. Judicial review of those decisions is limited to determining

whether her findings are supported by substantial evidence and whether she employed the

proper legal standards. Richardson v. Perales, 402 U.S. 389, 401 (1971). 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. See Kirk v.

Secretary, 667 F.2d 524, 535 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983). This court

does not try the case de novo, resolve conflicts in the evidence, or decide questions of

credibility. See Brainard v. Secretary, 889 F.2d 679, 681 (6th Cir. 1989); Garner v. Heckler,

745 F.2d 383, 387 (6th Cir. 1984).

In determining the existence of substantial evidence, the court must examine the

administrative record as a whole. Kirk, 667 F.2d at 536. If the Commissioner's decision is

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supported by substantial evidence, it must be affirmed even if substantial evidence also

supports the opposite conclusion, Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en

banc), Casey v. Secretary, 987 F.2d 1230 (6th Cir. 1993), and even if the reviewing court

would decide the matter differently, Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir.

1983).

Plaintiff maintains that substantial evidence does not support a finding that she

remains capable of performing a limited range of light work activity. She also argues that

the ALJ improperly evaluated her credibility, and did not take into consideration all of her

physical and emotional functional limitations. Defendant counters that the claimant retains

the residual functional capacity for a reduced range of light work because the objective

clinical evidence of record does not confirm the disabling nature of her joint pain or mental

difficulties. 

D. Discussion and Analysis

After review of the record, I suggest that there is substantial evidence on the record

supporting the Commissioner's conclusion that Plaintiff retained the residual functional

capacity for a restricted range of light work. Contrary to Plaintiff’s assertion, the medical

evidence does not support her allegations oftotallydisabling joint pain or chronic depression.

The medical record contains little objective medical basis for crediting Plaintiff’s

complaints of disabling symptoms related to her back and left foot pain. According to her

treating physicians, claimant enjoyed good results from her two back fusion operations. Dr.

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Jawad Shah, a long time family doctor, repeatedly described Plaintiff’s radiculopathy as

either improved, or no longer present, following her lumbar and cervical spine surgeries (TR 

688, 711, 742, 744, 746). Dr. Shah also observed, in both 2011 and 2012, that Plaintiff had

full strength in both legs, negative straight leg raising bilaterally and a normal gait.

(TR 742-745, 778-779). In addition, Dr. Paul Telehowski reported in February 2012, that the

claimant was able to perform heel walking without difficulty (TR 773). Several post-surgery

treatment records reported reduced pain symptoms, and described her overall level of

functioning as improved (TR 742-745, 770-779).

The ALJ also determined that Plaintiff had a history of depression and anxiety, but

found that these impairments were not severe (TR 15). An impairment is considered “not

severe” if it does not significantly limit the claimant’s physical or mental ability to do basic

work activities. 20 C.F.R. § 404.1521(a). While claimant maintains that her mental

impairments did interfere with her ability to engage in basic work activities, she had failed

to identifymedical evidence in the record supporting her assertion. See 20 C.F.R. § 404.1512

(“You must provide medical evidence showing that you have an impairment(s), and how

severe it is ... [and] how your impairment(s)affects your functioning during the time you say

that you are disabled.”).

Although claimant’s primary care physician prescribed psychiatric medications, she

did not seek or participate in any formal mental-health treatment. Plaintiff’s emotional

condition has remained stable over time with no evidence of mental related hospitalizations

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or emergency room visits. Moreover Plaintiff reportedly made good eye contact, engaged in

normal psychomotor activity, and was able to groom herself properly. In general, claimant

reportedlywas in a good mood and displayed a normal affect (TR 793). Following his review

of the medical record in December 2011, a state agency psychologist, Dr. Darrell Snyder,

concluded that Plaintiff’s mental impairments were not severe (TR 73-74). 

Contrary to Plaintiff’s assertion, the issue is not whether the ALJ properly labeled her

impairments as severe or non-severe, but whether the Law Judge adequately included all

functional limitations from those impairments into his residual functional capacity (RFC)

evaluation. In the instant case, the claimant has failed to point to any medical opinion, or

other evidence, demonstrating additional work-related limitations caused bythose conditions

allegedly ignored by the Law Judge. Considering the totality of the medical record, the

Commissioner could reasonably conclude that Plaintiff's subjective complaints of persistent,

severe, totally disabling symptoms stemming from her back pain and emotional difficulties

were not fully credible.

The medical record contains no evidence of debilitating side-effects from pain

medications. Significantly, no doctor declared her to be totally and permanently disabled.

Despite allegations that she suffered from severe pain radiating throughout her body, the

claimant was able to perform a wide range of activities of daily living. Claimant admittedly

was able to cook, go grocery shopping, drive an automobile, read for pleasure, and

occasionally attend church (TR 47-48, 51). See Warner v. Commissioner, 375 F.3d 387, 392

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(6th Cir. 2004) (“the [ALJ] justifiably considered [the plaintiff’s] ability to conduct activities

of daily life activities in the face of his claim of disabling pain”). The ALJ reasonably

accounted for claimant’s periodic joint pain by restricting her to slow paced light work that

did not require frequent crouching, crawling, stooping, climbing or balancing.

It is the rare case, indeed the exception, in which every piece of evidence points

incontrovertibly toward a decision to deny benefits. There was evidence in the record which,

taken in isolation, might suggest that the Plaintiff was totally disabled and that her testimony

was fully credible. However, special deference is owed to the credibility findings of the ALJ,

who was the only one who had the opportunity to observe the demeanor of the witness,

evaluate what was said and how it was said, and to consider how that testimony fit in with

the rest of the medical evidence. Such observation is invaluable and should not be discarded

lightly. Beavers v. Secretary, 577 F.2d 383 (6th Cir. 1978). See also Williamson v.

Secretary, 796 F.2d 146, 150 (6th Cir. 1986).

By establishing that she could not return to her past relevant work, the Plaintiff here

effectively shifted to the Commissioner the burden of proving that she had the vocational

qualifications to perform alternative jobs in the economy, notwithstanding her various

impairments. The Commissioner, however, met her burden of proving the existence of jobs

which accommodated claimant's known restrictions. In response to hypothetical questions

that took into consideration claimant's educational and vocational background, along with

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her significant impairments , the Vocational Expert testified that there were numerous 2

unskilled assembly, surveillance monitor, information clerk and inspection jobs that she

could perform with minimal vocational adjustment. These jobs involved performing

repetitive tasks in a work environment free of fast paced production requirements. They

provided a sit-stand option at will, as long as a worker was not off task more than 10 percent

of the time. There would be no requirement to perform any overhead reaching or to

frequently balance, stoop, kneel, crouch or crawl. Workers would not be exposed to

excessive vibrations, moving machinery or unprotected heights (TR 62-65). Given the

objective clinical findings ofthe examining physicians ofrecord, there is substantial evidence

on the record that Plaintiff retained the residual functional capacity for a restricted range of

light work activity . 

3

The Administrative Law Judge’s hypothetical questions to the Vocational Expert accurately described

2

Plaintiff’s moderate limitations caused by her joint pain, anxiety and depression. The ALJ reasonably

determined that claimant’s on-going joint discomfort limited her to simple, unskilled, routine type jobs that

did notrequire frequent bodily movements (TR 13-19). The Sixth Circuit has held that hypothetical questions

to experts are not required to included lists of claimant’s medical conditions. Webb v. Commissioner, 368

F.3d 629, 633 (6 Cir. 2004). Under these circumstances, the ALJ’s hypothetical question accurately

th

portrayed Plaintiff’s impairments.

Plaintiff asserts that the ALJ was required to find her limited to sedentary work, once he found that she 3

required a sit-stand option. This unsupported argument was contradicted by the Vocational Expert, who was

able to identify jobs consistent with both a light-work limitation and a sit-stand option (TR 64). The VE also

confirmed to counsel that the particular jobs she identified (assembler and inspector) could be performed

either sitting or standing, as long as the individual could meet the lifting requirements of light work (TR

66-67). Claimant also argues that the Vocational Expert’s testimony was inconsistent with the Dictionary

of Occupational Titles (“DOT”) because the DOT does not say anything about a sit-stand option. (See

Plaintiff’s Brief in Support of Summary Judgment at p.10). Generally, where there is a conflict between the

vocational expert’s testimony and the DOT, the ALJ should elicit an explanation for that conflict from the

vocational expert. See SSR 00-4p, 2000 WL 1898704, at *4. Here, the ALJ told the Vocational Expert that

he would assume her testimony was based on her “knowledge, education, training, and experience,” and

consistent with the DOT, unless she told him otherwise (TR 60). The Vocational Expert explained that she

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In sum, the Commissioner's decision to deny benefits was within the range of

discretion allowed by law and there is simply insufficient evidence for the undersigned to

find otherwise. Accordingly, Plaintiff's Motion for Summary Judgment should be denied,

that of Defendant granted and the instant Complaint dismissed. 

III. REVIEW

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

Recommendation, but are required to act within fourteen (14) days of service of a copy

hereof as provided for in 28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes

a waiver of any further right of appeal. United States v. Walters, 638 F.2d 947 (6th Cir.

1981), Thomas v. Arn, 474 U.S. 140 (1985), Howard v. Secretary of HHS, 932 F.2d 505 (6th

Cir. 1991). Filing of objections which 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. Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th

Cir. 1987), Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir. 1991). Pursuant to Rule

72.1 (d)(2) of the Local Rules of the United States District Court for the Eastern District of

Michigan, a copy of any objections is to be served upon this Magistrate Judge.

was reducing the number of jobs she identified in order to account for the sit-stand option, along with some

of the other restrictions (TR 64). The Vocational Expert, therefore, accounted for the DOT’s silence as to

a sit-stand option by relying on her experience and reducing the job numbers. Plaintiff did not raise any

objections regarding any potential inconsistency with the DOT during the hearing.

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Within fourteen (14) days of service of any objecting party's timely filed objections,

the opposing party may file a response. The response shall address specifically, and in the

same order raised, each issue contained within the objections.

 s/ Charles`E Binder 

CHARLES E. BINDER 

Dated: May 18, 2015 United States Magistrate Judge

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