UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LATISHA CALLOWAY,

Plaintiff,

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

_____________________________________/

Case No. 15-10020

John Corbett O’Meara

United States District Judge

Stephanie Dawkins Davis

United States Magistrate Judge

REPORT AND RECOMMENDATION

CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkt. 11, 13)

I. PROCEDURAL HISTORY

A. Proceedings in this Court

On January 6, 2015, plaintiff filed the instant suit seeking judicial review of

the Commissioner’s unfavorable decision disallowing benefits. (Dkt. 1). Pursuant

to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(b)(3), District Judge John

Corbett O’Meara referred this matter to Magistrate Judge Michael Hluchaniuk for

the purpose of reviewing the Commissioner’s decision denying plaintiff’s claim

for benefits. (Dkt. 3). This matter was reassigned to the undersigned Magistrate

Judge on January 5, 2016, pursuant to administrative order. (See Text-Only Order

dated January 5, 2016). This matter is currently before the Court on cross-motions

for summary judgment. (Dkt. 11, 13).

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B. Administrative Proceedings

Plaintiff filed the instant claim for supplemental security income on

February 24, 2012, alleging disability beginning on that same date. (Dkt. 7-2, Pg

ID 56). Plaintiff’s claim was initially disapproved by the Commissioner on July 6,

2012. Id. Plaintiff requested a hearing and on June 10, 2013, plaintiff appeared,

along with her attorney, before Administrative Law Judge (ALJ) Melvyn B. Kalt,

who considered the case de novo. (Dkt. 7-2, Pg ID 72-100). In a decision dated

August 30, 2013, the ALJ found that plaintiff was not disabled. (Dkt. 7-2, Pg ID

53-68). Plaintiff requested a review of this decision on October 10, 2013. (Dkt. 7-

2, Pg ID 51). The ALJ’s decision became the final decision of the Commissioner

when, after the review of additional exhibits, the Appeals Council on September

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17, 2014, denied plaintiff’s request for review. (Dkt. 7-2, Pg ID 33-38); Wilson v.

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

For the reasons set forth below, the undersigned RECOMMENDS that

plaintiff’s motion for summary judgment be DENIED, that defendant’s motion for

In this circuit, where the Appeals Council considers additional evidence but denies a 1

request to review the ALJ’s decision, since it has been held that the record is closed at the

administrative law judge level, those “AC” exhibits submitted to the Appeals Council are not

part of the record for purposes of judicial review. See Cotton v. Sullivan, 2 F.3d 692, 696 (6th

Cir. 1993); Cline v. Comm’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996). Therefore, since

district court review of the administrative record is limited to the ALJ’s decision, which is the

final decision of the Commissioner, the court can consider only that evidence presented to the

ALJ. In other words, Appeals Council evidence may not be considered for the purpose of

substantial evidence review.

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summary judgment be GRANTED, and that the findings of the Commissioner be

AFFIRMED.

II. FACTUAL BACKGROUND

A. ALJ Findings

Plaintiff was born in 1970 and was 41 years old on the application date and

37 years old on the alleged onset date. (Dkt. 7-2, Pg ID 62, 66). The ALJ applied

the five-step disability analysis to plaintiff’s claim and found at step one that

plaintiff had not engaged in substantial gainful activity since the alleged onset date. 

Id. at 58. At step two, the ALJ found that plaintiff’s status post gunshot wounds to

the left shoulder, left buttock, and right leg were “severe” within the meaning of

the second sequential step. Id. at 59. At step three, the ALJ found no evidence that

plaintiff’s combination of impairments met or equaled one of the listings in the

regulations. Id. at 61. The ALJ determined that plaintiff had the residual

functional capacity (RFC) to perform sedentary work as follows:

After careful consideration of the entire record, the

undersigned finds that the claimant has the residual

functional capacity to perform sedentary work as defined

in 20 CFR 416.967(a) except that she would require the

option to alternate between sitting and standing at will.

The claimant could never climb. She could occasionally

balance, stoop, kneel, crouch, or crawl. The claimant

could not perform activities requiring the use of the upper

extremities above shoulder level. She could not work

around unprotected heights. Due to pain and the side

effects of medication, the claimant would be limited to

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simple, unskilled work.

Id. at 61. At step four, the ALJ concluded that plaintiff could not perform her past

relevant work as a housekeeper, laundry laborer, telemarketer, and waitress. Id. at

66. At step five, the ALJ denied plaintiff benefits because plaintiff could perform a

significant number of jobs available in the national economy. Id. at 67-68.

B. Plaintiff’s Claims of Error

Plaintiff first argues that the ALJ failed to accord proper weight to the

opinions of her treating physician, Dr. Ayres. Specifically, plaintiff contends that

the ALJ indicating that her pain is no worse than a 3 out of a 10 on average since

the application date is incorrect, especially considering the medical documentation

from Dr. Ayres, which reports several dates of service where she reported a

significant increase in pain. According to plaintiff, the ALJ selectively relied on

portions of Dr. Ayres’ opinions without explaining why all of the opinion was not

accepted. Furthermore, the ALJ indicated that plaintiff’s pain had been

generally manageable with conservative treatment; however, plaintiff also points

out that she often sought medical treatment when her pain was exacerbated and for

which her conservative treatment was not working. Thus, plaintiff contends, the

evidence shows that conservative treatment was not working due to the fact she has

had significant flare ups. As indicated in the records, plaintiff reported her pain at

a 10 at its worse and the 10 level was not addressed by the ALJ anywhere in the

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decision. According to plaintiff, this is especially problematic, considering how

her pain level of a 10 would affect her RFC. Plaintiff contends that the ALJ did not

give the opinion of Dr. Ayres great weight, in fact, he specifically states that this

medical opinion is given “very limited weight.” Therefore, the ALJ failed to

comply with 20 C.F.R. § 404.1527 by failing to record adequate weight to the

opinion of Dr. Ayres’ records and findings.

Next, plaintiff argues that the ALJ erred in finding that plaintiff can perform

sustained work activities, despite an absence of support for such a finding in the

record. Although the ALJ’s RFC provides for “the option to alternate between

sitting and standing at will,” plaintiff says the evidence in the record does not

support her ability to stand and/or sit for an 8 hour work day with breaks.

Specifically, the record documents a severe medical condition in her lumbar spine

including pain, muscle spasm, and reduced range of motion. The pain in her back

radiates to her left buttock. Throughout the record she complains of prolonged

sitting and standing causing increased pain in her left buttock. Even with her

sedentary lifestyle, on April 9, 2012, she was seen by Dr. Ayres for increased pain

in her buttocks. (Dkt. 7-10, Pg ID 329). On that date, she reported her pain as a 5

and her prescriptions for Oxycodone and Xanax were refilled. On May 1, 2012,

she was seen for increased pain in her left buttocks, right knee and left arm. She

reported her pain at a 4 and, at its worst, a 10. (Dkt. 7-10, Pg ID 325). In addition,

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Plaintiff reported in multiple forms, as well as her testimony during the hearing,

that she has to lay down for pain as a result of her left buttocks and prolonged

sitting and/or standing aggravate her left buttocks pain. In addition, the ALJ

indicated that “the record does contain some evidence of pain with straight-leg

raising, particularly on the left, which is consistent with the claimant’s comments

of discomfort in her back, left buttock and right knee.” Furthermore, the ALJ also

stated that “Dr. Ayres’ consistent findings of tenderness and increased pain with

movements support a limitation to sedentary work with only occasional postural

activities, allowing the opportunity to alternate between sitting and standing at

will.” Therefore, the medical evidence from Dr. Ayres coupled with plaintiff’s

testimony does not support her ability to stand and/or sit for an 8-hour work day

with breaks.

Plaintiff alleged nerve damage in her left upper extremity and repeatedly

indicated that she has an inability to use her left upper extremity except to support

the right upper extremity. (Dkt. 7-2, Pg ID 77). The ALJ observed that “... when

the claimant presented for the psychological consultative examination, Dr. Mills

stated that she had many rings on her fingers and was wearing make-up, which also

demonstrates intact bilateral manual dexterity. (Ex. B5F4-3).” According to

plaintiff, however, nowhere in the decision nor at the time of the hearing did the

ALJ question her as to whether she put her own makeup on, nor does the report

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from Dr. Mills indicate on what hand her rings were placed or how much make-up

she was wearing. Without further exploration into the rings and her make-up,

plaintiff contends that it was reversible error for the ALJ to assume that this one

instance demonstrates that her bilateral manual dexterity is intact.

In addition, plaintiff asserts that the ALJ did not address the non-exertional

capacities for performing sedentary work such as understanding, remembering and

carrying out simple instructions. Rather, the ALJ merely states that plaintiff would

be limited to simple, unskilled work in the RFC (Dkt. 7-2, Pg ID 61) but nowhere

in the decision does the ALJ indicate how he concluded that the pain and side

effects of medication would affect her ability to understand, remember and carry

out simple instructions. Therefore, plaintiff maintains that the ALJ did not address

the non-exertional limitations in order to perform sedentary work outlined within

SSR 96-9p; nor did he address the medical evidence and her complaints in support

of her ability to perform sitting or standing 8 hours a day with breaks. Agency

regulations require that RFC assessments consider an individual’s maximum

remaining ability to do sustained work activities in an ordinary work setting, on a

regular and continuous basis. A “regular and continuing basis” means 8 hours a

day, for 5 days a week, or an equivalent work schedule. (SSR 96-8p). The medical

evidence as a whole (and as noted in the ALJ’s findings) indicate that plaintiff has

several severe medical conditions, including: status post gunshot wounds to left

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shoulder, left buttock and right leg. (Dkt. 7-2, Pg ID 59). The ALJ also recognized

several non-severe impairments, including: obesity, asthma, nerve damage and

anxiety. Id. Although the ALJ found that plaintiff was capable of having a

sit/stand option and sitting for 6 hours per day, according to plaintiff, she testified,

and the medical documentation supports, that she has significant back pain as well

as leg pain with prolonged sitting. Even with a sit/stand option, plaintiff says she

would still need to either sit, stand or walk for a total of all of these in an 8 hour

work day. Plaintiff specifically testified that she could sit for only 15 minutes

before needing to get up and move (id. at 83) and testified that she requires

“breaks” after any period more than 10 minutes of standing or sitting and will need

to lay down and elevate her legs. (Id. at 88, 91). Overall, according to plaintiff, the

record supports her contention that her severe medical conditions preclude any

sustained work activities.

Plaintiff next contends that the limitations preclude even sedentary work.

Courts have held repeatedly that sedentary work requires the ability to sit for

extended periods and is precluded by an impairment which requires a claimant to

alternate sitting and standing. Preston v. Secretary of H.H.S., 854 F.2d 815, 819

(6th Cir. 1988); Howse v. Heckler, 782 F.2d 626, 628 (6th Cir. 1986). Plaintiff

testified that she cannot sit or stand for an entire day, and needs breaks and to

switch back and forth. (Dkt. 7-2, Pg ID 92-93). In Faison v. Secretary of H.H.S.,

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679 F.2d 598, 599 (1982), the court took judicial notice that sedentary jobs, while

requiring less strength than other jobs, also require more manual dexterity and

speed than other jobs. This dexterity is simply impossible where plaintiff

repeatedly testified about her “excruciating” pain in her arm and her total inability

to use her left hand. (Dkt. 7-2, Pg ID 80, 77). According to plaintiff, this finding

does not allow for plaintiff to perform even unskilled, sedentary work.

According to plaintiff, the ALJ’s finding that she was capable of a limited

range of unskilled, sedentary work is not supported by the requisite substantial

evidence, and should be reversed accordingly. Here, the only physical RFC in the

file was performed by Dr. Montasir who performed a consultative examination on

June 16, 2012. (Dkt. 7-9, Pg ID 296-302). It was Dr. Montasir’s opinion that

plaintiff should be able to work as far as her physical condition is concerned and

that there would be limitations on her working overhead, she should not be

involved in climbing ropes, ladders, or scaffolding due to the above impressions

and walking, sitting and standing should be without difficulty. Furthermore, he

indicated that pushing, pulling and lifting should be reasonable and that carrying

should be mainly with the right hand. However, Dr. Montasir does not provide any

further limitations especially considering the side effects of her medications or pain

levels. Plaintiff contends that nowhere in the decision does the ALJ indicate the

medical evidence he relied on in providing her with “the option to alternate

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between sitting and standing at will.” Plaintiff asserts that there is no assessment

from a medical provider which supports the ALJ’s conclusion and his resulting

RFC.

Plaintiff argues that the ALJ’s RFC findings directly contradict the testimony

and evidence presented at the hearing. The plaintiff testified that she could lift, at

most, 15 pounds with both hands. Further, she testified that she needed to elevate

her left leg on a regular basis throughout the day. (Dkt. 7-2, Pg ID 93). Several

hypotheticals were posed to the VE, including one asking him to presume that all

of plaintiff’s testimony was accurate. (Id. at 97). The VE responded that if the

plaintiff needed multiple naps per day, as she testified, that would preclude

employment. A further hypothetical was posed to the VE based on plaintiff’s

testimony regarding her drowsiness and weekly panic attacks, asking if she had

more than 2 absences per month, and the VE replied that “would eliminate these

jobs.” (Id. at 98). Despite this direct testimony, the ALJ found that plaintiff is not

disabled and can hold a sedentary job (of only three given). (Id. at 68). According

to plaintiff, this is particularly significant where the burden to prove that a claimant

could perform other work existing in the national economy falls on the

Commissioner. Thus, plaintiff contends that the ALJ’s findings are not supported

by substantial evidence where the determination that plaintiff can work is directly

contradicted by both her own testimony and that of the VE.

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C. The Commissioner’s Motion for Summary Judgment

The Commissioner argues that the ALJ properly assessed the opinion

evidence of record, in accordance with 20 C.F.R. § 416.927 and Social Security

Ruling (SSR) 96-2p, 1996 WL 374188 (July 2, 1996). (Dkt. 7-2, Pg ID 66). 

Contrary to plaintiff’s argument, the Commissioner maintains that Dr. Ayres did

not provide an “opinion” within the meaning of the regulations and the ALJ

thoroughly considered the medical evidence, including Dr. Ayres’s treatment notes

and the opinion of consultative examiner Dr. Montasir, in his RFC assessment. Id.

at 62-66. “Medical opinions are statements from physicians and psychologists or

other acceptable medical sources that reflect judgments about the nature and

severity of [the claimant’s] impairment(s), including [her] symptoms, diagnosis and

prognosis, what [she] can still do despite impairment(s), and [her] physical or

mental restrictions.” 20 C.F.R. § 416.927(a)(2). The Commissioner points out that

plaintiff’s treating physician, Dr. Ayres, did not opine that she was disabled, nor

did his notes indicate any functional limitations related to her impairments. (Dkt.

7-7, Pg ID 222-239; Dkt. 7-8, Pg ID 240-266; Dkt. 7-9, Pg ID 269-295; Dkt. 7-10,

Pg ID 313-336). Thus, plaintiff’s record did not include any “opinion[s]” from her

treating physician. In the absence of a treating source opinion, the ALJ must

consider, and may rely on, non-treating or non-examining medical opinions, such

as those from state agency physicians or psychologists or consultative examiners. 

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20 C.F.R. § 416.927(e)(1); see Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376

(6th Cir. 2013).

Plaintiff argues that the ALJ outlined Dr. Ayres’s “opinion” in his decision,

but improperly considered Plaintiff’s pain and the fact that it waxed and waned.

Again, the Commissioner points out that Dr. Ayres did not provide an “opinion”

within the meaning of the regulations and the ALJ thoroughly considered the

doctor’s treatment notes in his RFC determination. 20 C.F.R. § 416.927(a)(2). 

Plaintiff also incorrectly states in her brief that the ALJ specifically stated he gave

“very limited weight” to the doctor’s opinion; the ALJ made no such finding. (Dkt.

7-2, Pg ID 61-66). The ALJ assigned “great weight” to the consultative examiner’s

opinion, which was proper under the regulations, in the absence of a treating source

opinion and where the opinion itself was consistent with plaintiff’s medical history

and the findings from her physical examination. Id. at 66; 20 C.F.R.

§416.927(e)(1).

According to the Commissioner, plaintiff’s argument, that the ALJ

improperly considered the evidence of her level of pain, misunderstands this

Court’s standard of review. The ALJ’s findings as to plaintiff’s pain were

substantially supported by the medical record. (Dkt. 7-2, Pg ID 64). Plaintiff

points to medical evidence that she argues demonstrates the ALJ improperly

considered Dr. Ayres’s treatment notes, as she “often sought medical treatment

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when her pain was exacerbated and for which her conservative treatment was not

working.” Pl. Br. at 13. The Commissioner suggests, however, that it is the

Commissioner’s duty, not this Court’s, to weigh the evidence and resolve material

conflicts in the evidence. Perales, 402 U.S. at 399-400. The ALJ’s findings are

not subject to reversal merely because substantial evidence may exist in the record

to support a different conclusion, provided there is substantial evidence to support

the ALJ’s findings, as the Commissioner asserts there is in this case. Torres v.

Comm’r of Soc. Sec., 490 Fed. Appx. 748, 754 (6th Cir. 2012). The Commissioner

further contends that the records plaintiff cites do not contradict the ALJ’s findings. 

Although her pain level may have been higher at points, such as at particular doctor

visits or on her worst day, during the adjudicated period, she mainly reported to Dr.

Ayres that her pain was an average of three out of ten on the pain scale. (Dkt. 7-9,

Pg ID 273; Dkt. 7-10, Pg ID 314, 316; 320, 323, 330).

While Plaintiff suggests that Dr. Ayres’s treatment notes are inconsistent

with the RFC finding, the record does not support her argument. Plaintiff has not

pointed to any evidence, from Dr. Ayres’s treatment notes, that indicates a finding

of disability was required, or that suggests further limitations to the RFC were

warranted. The Commissioner maintains that the ALJ properly determined

Plaintiff maintained the RFC to perform limited sedentary work, relying on the

substantial medical evidence of record, including treatment notes from Dr. Ayres

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and the opinion evidence. 

Next, the Commissioner contends that substantial evidence, including

treatment notes and the opinion of the consultative examiner, support the ALJ’s

determination that plaintiff could perform limited sedentary work, given a sit/stand

option, despite her physical impairments. (Dkt. 7-2, Pg ID 61); see 20 C.F.R.

§§ 416.920(e), 945(a). The ALJ determined that plaintiff retained the RFC to

perform sedentary work, except she would require the option to alternate between

sitting and standing. (Dkt. 7-2, Pg ID 61); 20 C.F.R. § 416.967(a). Further, the

ALJ found plaintiff: could never climb; could occasionally balance, stoop, kneel,

crouch, and crawl; could not perform activities requiring the use of her upper

extremities above shoulder level; and could not work around unprotected heights. 

(Dkt. 7-2, Pg ID 61). Because of pain and the side effects of medication, plaintiff

was limited to simple, unskilled work. Id.

The ALJ assigned Dr. Montasir’s opinion “great weight,” as it was consistent

with Plaintiff’s medical history and the findings from her physical examination. 

(Dkt. 7-2, Pg ID 65). The ALJ rejected Dr. Montasir’s opinion to the extent that it

concluded plaintiff’s ability to sit, stand, or walk would not be affected. Id. 

According to the Commissioner, the ALJ limited plaintiff to sedentary work,

consistent with her persistent tenderness and pain with range of motion of her back

and right knee. Id. The limitation to occasional postural activities was consistent

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with Dr. Montasir’s opinion and physical examination findings, as well as the

treatment notes from Dr. Ayres. (Id. at 63; Dkt. 7-10, Pg ID 319). The ALJ

provided an opportunity to alternate between sitting and standing at will to account

for her tenderness and increased pain with movement. (Dkt. 7-2, Pg ID 63).

The Commissioner asserts that the ALJ’s discussion established the RFC

finding was supported by substantial evidence. Id. at 61-66. According to the

Commissioner, Dr. Ayres’s treatment notes are consistent with the ALJ’s finding

that plaintiff could perform a limited range of sedentary work and was not totally

disabled. While the limitations in the RFC are consistent with plaintiff’s

tenderness to palpation and pain with movement of the left shoulder, left hip, and

right leg and low back tenderness, with occasional muscle spasms, (Dkt. 7-2, Pg ID

62; Dkt. 7-7, Pg ID 234; Dkt. 7-8, Pg ID 245, 251, 254, 263, 266; Dkt. 7-9, Pg ID

273, 280, 283, 287, 289; Dkt. 7-10, Pg ID 316, 319, 332), during the relevant

period, plaintiff reported average pain levels that were mild, suggesting, as the ALJ

found, that she was capable of performing some full-time work, with proper

limitations for her impairments. (Dkt. 7-2, Pg ID 64; Dkt. 7-9, Pg ID 273; Dkt. 7-

10, Pg ID 314, 317, 320, 232, 330); Baily v. Comm’r of Soc. Sec., 623 F. Supp. 2d

889, 902-03 (W.D. Mich. 2009) (and cases cited) (“In other words, pain may or

may not be disabling, i.e., under appropriate circumstances a claimant will be

denied disability benefits if there is substantial evidence that [s]he can work despite

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the pain.”).

The Commissioner also points out that during her consultative examination,

plaintiff had a normal gait and stance, ambulated well, had no muscle atrophy or

joint deformity, could tandem walk, could get on and off the examination table, and

had fair muscle tone. (Dkt. 7-9, Pg ID 297). The RFC is consistent with Dr.

Montasir’s finding that fatigue might be possible if plaintiff was working overhead

using mainly her left extremity, but otherwise had no neurological dysfunction. 

(Dkt. 7-2, Pg ID 61; Dkt. 7-9, Pg ID 298). The doctor found plaintiff’s range of

motion was normal in her cervical and lumbar spine, both elbows, hips, knees,

ankles, and wrists, and in her right shoulder, but was slightly reduced in her left

shoulder. (Dkt. 7-9, Pg ID 299-300). Plaintiff’s reflexes were normal bilaterally in

both her upper and lower extremities. Id. at 301. As the ALJ concluded, while her

symptoms suggested work limitations were appropriate, there was no opinion that

plaintiff was completely precluded from all work activity. (Dkt. 7-2, Pg ID 61-66).

Plaintiff also argues that the ALJ erroneously assumed that “her bilateral

manual dexterity [wa]s intact,” where she alleged nerve damage in her left upper

extremity and an inability to use her left upper extremity, except to support her

right upper extremity. (Dkt. 11, PgID 281). In part, the ALJ found plaintiff

maintained bilateral manual dexterity because, during her psychological

consultative examination with Terrance Mills, Ph.D., she wore many rings on her

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fingers and was wearing make-up. (Dkt. 7-2, Pg ID 63; Dkt. 7-9, Pg ID 306). 

According to the Commissioner, there was no error in the ALJ’s reliance on this

observation, even though he did not elicit testimony during the hearing as to which

hand plaintiff wore her rings or whether she was able to apply make-up herself. 

The Commissioner contends that plaintiff has pointed to nothing in the medical

record that contradicts the ALJ’s finding.

Further, although the ALJ found plaintiff maintained bilateral manual

dexterity, the ALJ did limit the use of her upper extremities in the RFC, consistent

with the medical evidence. (Dkt. 7-2, Pg ID 61, 63). The RFC limited plaintiff to

lifting no more than ten pounds occasionally, with no climbing and no overhead

work involving either upper extremity—limitations supported by Dr. Montasir’s

opinion. Id.; (Dkt. 7-9, Pg ID 298). Dr. Ayres found that plaintiff had increased

pain with palpation and movement of her left shoulder, but did not opine any

limitations resulted from her impairment, and made no negative findings regarding

her manual dexterity. (Dkt. 7-2, Pg ID 63; Dkt. 707, Pg ID 234; Dkt. 7-8, Pg ID

244; 251, 254, 262, 265; Dkt. 7-9, Pg ID 272, 280, 283, 287, 289; Dkt. 7-10, Pg ID

316, 319, 332). Further, during plaintiff’s examination with Dr. Montasir, her

flexion and extension in both hands and all of her fingers were normal, her reflexes

were normal bilaterally in both upper extremities, her fine and gross dexterity were

intact, and her handgrip was good bilaterally, with her grip strength at five out of

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five. (Dkt. 7-2, Pg ID 63; Dkt. 7-9, Pg ID 297, 300-302). The Commissioner

maintains, therefore, that the ALJ’s findings and the limitations in the RFC were

supported by substantial evidence.

Plaintiff next argues that limiting plaintiff to simple, unskilled work in the

RFC did not address the other non-exertional capacities required for performing

sedentary work, such as understanding, remembering, or carrying out simple

instructions. Plaintiff also contends the ALJ’s failure to articulate how her pain

and the side effects from her medication would affect these work-related mental

abilities was error. The Commissioner acknowledges that when assessing RFC,

non-exertional capacity, such as mental limitations, “must be expressed in terms of

work-related functions,” including the ability to “understand, carry-out and

remember instructions, use judgment in making work-related decisions, respond

appropriately to supervision, co-workers, and supervisors, and deal with changes in

a routine work setting.” SSR 96-8p, 1996 WL 374184, at *6 (July 1, 1996); see

also SSR 85-15, 1985 WL 56857, at *4 (Jan. 1, 1985) (discussing the basic mental

demands of competitive, unskilled work, as part of a broader consideration of what

limitations severely limit the potential occupational base in the step-five inquiry).

But, the Commissioner points out that the ALJ is not required to discuss the

capacities where no limitation has been alleged. Delgado v. Comm’r of Soc. Sec.,

30 Fed. Appx. 542, 547 (6th Cir. 2002). According to the Commissioner,

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plaintiff’s argument fails to identify how the evidence contradicts the mental RFC

finding. Initially, plaintiff did not allege disability based on any mental

impairment. (Dkt. 7-3, Pg ID 115). The ALJ considered plaintiff’s anxiety

disorder and affective disorder at steps three and four of the sequential evaluation,

although he determined both were non-severe impairments within the meaning of

the Act, as they did not cause more than minimal limitation in her ability to perform

basic mental work activities. (Dkt. 7-2, Pg ID 59-66).

The Commissioner also maintains that there is not substantial evidence that

plaintiff’s ability to understand, remember, or carry out instructions was limited.

The ALJ found plaintiff was mildly limited in the area of concentration,

persistence, or pace, as she complained of significant drowsiness from pain

medication. Id. at 60. But plaintiff “did not allege serious problems with

maintaining attention or completing tasks due to her mental impairments,” and she

consistently reported to Dr. Ayres that she experienced no side effects or problems

with her medications. Id. at 60, 63. In her function report, plaintiff stated she

could pay attention for “as long as needed.” Id. at 60; (Dkt. 7-6, Pg ID 188). 

During her psychological consultative examination, plaintiff did not demonstrate

any deficits in memory. (Dkt. 7-2, Pg ID 60; Dkt. 7-9, Pg ID 307-308). However,

giving plaintiff the benefit of the doubt that medication could reasonably cause a

limitation, the ALJ limited her to simple, unskilled work, with no exposure to

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unprotected heights. (Dkt. 7-2, Pg ID 63).

The Commissioner contends that although the record supports plaintiff does

have some back and leg pain, nothing contradicts the ALJ’s finding that, despite

her impairments, plaintiff maintained the ability to work at a limited sedentary

capacity. To the extent plaintiff argues that the ALJ erred in assessing the

credibility of her testimony and subjective complaints of pain, weighing conflicting

evidence falls squarely within the ALJ’s province, and, according to the

Commissioner, the Court should not disturb his sensible resolution of these

conflicts. Id. at 62-66; Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir. 1990). The

ALJ’s credibility determination was “sufficiently specific to make clear . . . the

weight [he] gave to . . . statements and the reasons for that weight.” Burbo v.

Comm’r of Soc. Sec., 877 F. Supp. 2d 526, 540 (E.D. Mich. 2012) (citing SSR

96-7p, 1996 WL 374186, at *2 (July 1, 1996)).

Plaintiff’s final contention is that case law precludes the ALJ’s RFC finding,

as sedentary work is not compatible with a limitation to alternating between sitting

and standing. The Commissioner maintains, however, that on the facts of this case,

however, plaintiff’s argument is not persuasive. There is no error if, when

non-exertional impairments are present which may be expected to significantly

erode the occupational base for the full range of sedentary work, the Commissioner

consults with a VE to determine whether a claimant can still perform a significant

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number of sedentary jobs. Bennett v. Astrue, 2008 WL 345523, at *5 (W.D. Ky.

Feb. 7, 2008) (and sources cited). In Howse, which plaintiff relies on, there was no

VE testimony to confirm that the requirement to alternate between sitting and

standing would still allow the plaintiff to perform a significant number of jobs.

Howse, 782 F.2d at 628. Here, on the contrary, the VE testified that even with such

limitation, plaintiff was able to perform other work, such as information clerk, hand

packager, and security monitor. (Dkt. 7-2, Pg ID 66-67, 95-97). In sum, the ALJ

weighed the evidence and assessed the credibility of plaintiff’s subjective

complaints to determine she maintained the ability to perform a limited range of

sedentary work. The Commissioner maintains that the ALJ’s RFC finding is

consistent with both the opinion of the consultative examiner and the treatment

notes from plaintiff’s treating physician.

Substantial evidence supports the ALJ’s finding that plaintiff was not

disabled where there was other work in the economy that she could perform with

her RFC. (Dkt. 7-2, Pg ID 67). Plaintiff argues that the step-five finding was not

supported by substantial evidence, where the VE testified that the need to elevate

her leg and take multiple naps per day would preclude all employment. Id. at 96-

97. The Commissioner argues that plaintiff’s argument is without merit. Plaintiff

does not argue that the hypothetical question did not match the RFC, but that the

ALJ’s RFC finding was incorrect, where it did not include limitations that she

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testified to, and the hypothetical question was equally flawed. Id. at 55-56. 

However, the Commissioner points out that a hypothetical question need only

include those limitations that the ALJ accepts as credible. See Casey v. Sec’y of

Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993); Blacha v. Sec’y of

Health & Human Servs., 927 F.2d 228, 231 (6th Cir. 1990). Essentially, plaintiff’s

argument is a collateral attack on the RFC finding, the credibility determination,

and the ALJ’s weighing of the evidence.

The Commissioner next points out that the ALJ found plaintiff’s statements

that she would need to lie down more than ten times per day, either due to

medication side effects, to relieve pain, or to elevate her right knee above the level

of her hip were not credible. (Dkt. 7-2, Pg ID 63, 93; Dkt. 7-9, Pg ID 296-297;

305-206). According to the Commissioner, nothing in the medical record suggests

stiffness or swelling in her knee that would require elevating her leg multiple times

per day. (Dkt. 7-2, Pg ID 63). Plaintiff did not indicate to Dr. Montasir that she

spent a significant amount of time lying down. (Dkt. 7-2, Pg ID 63; Dkt. 7-9, Pg

ID 296-298). According to the Commissioner, the ALJ supportably found

plaintiff’s habit of lying down related more to her incarceration than her physical

symptoms. (Dkt. 7-2, Pg ID 63). Further, plaintiff did not report debilitating

fatigue or excessive drowsiness to Dr. Ayres, who prescribed her pain medications. 

(Dkt. 7-2, Pg ID 63-64; Dkt. 7-7, Pg ID 234; Dkt. 7-8, Pg ID 244, 251, 262, 265;

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Dkt. 7-9, Pg ID 272, 280, 283, 287, 289; Dkt. 7-10, Pg ID 316, 319). Therefore,

the Commissioner maintains that the ALJ properly concluded that plaintiff

exaggerated the cause and frequency of her daily naps during the hearing. (Dkt. 7-

2, Pg ID 64)

Similarly, although plaintiff complained of weekly panic attacks, the

Commissioner points out that the record reflects she reported improvement in her

anxiety with Xanax. (Dkt. 7-2, Pg ID 64, 87-88; Dkt. 7-7, Pg ID 234; Dkt. 7-8, Pg

ID 244, 251, 254, 262, 265; Dkt. 7-9, Pg ID 272, 280, 283, 287; Dkt. 7-10, Pg ID

316, 319). During the psychological consultative examination, with Dr. Mills, the

doctor did not observe any overt signs of anxiety. (Dkt. 7-2, Pg ID 60; Dkt. 7-9, Pg

ID 306-307). During her psychological evaluation when she was incarcerated,

plaintiff also demonstrated no signs of anxiety. (Dkt. 7-2, Pg ID 60; Dkt. 7-10, Pg

ID 341). As demonstrated, therefore, the Commissioner urges the Court to

concludes that substantial evidence supports the ALJ’s RFC and credibility

findings, his weighing of the evidence, and, ultimately, his determination that

plaintiff was not disabled within the meaning of the Act.

II. DISCUSSION

A. Standard of Review 

In enacting the social security system, Congress created a two-tiered system

in which the administrative agency handles claims, and the judiciary merely

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reviews the agency determination for exceeding statutory authority or for being

arbitrary and capricious. Sullivan v. Zebley, 493 U.S. 521 (1990). The

administrative process itself is multifaceted in that a state agency makes an initial

determination that can be appealed first to the agency itself, then to an ALJ, and

finally to the Appeals Council. Bowen v. Yuckert, 482 U.S. 137 (1987). If relief is

not found during this administrative review process, the claimant may file an action

in federal district court. Mullen v. Bowen, 800 F.2d 535, 537 (6th Cir. 1986).

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

administrative decision pursuant to 42 U.S.C. § 405(g). Judicial review under this

statute is limited in that the court “must affirm the Commissioner’s conclusions

absent a determination that the Commissioner has failed to apply the correct legal

standard or has made findings of fact unsupported by substantial evidence in the

record.” Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005);

Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). 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 v.

McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Garner v. Heckler, 745 F.2d 383,

387 (6th Cir. 1984). “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); Jones v. Comm’r of Soc.

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Sec., 336 F.3d 469, 475 (6th Cir. 2003) (an “ALJ is not required to accept a

claimant’s subjective complaints and may ... consider the credibility of a claimant

when making a determination of disability.”); Cruse v. Comm’r of Soc. Sec., 502

F.3d 532, 542 (6th Cir. 2007) (the “ALJ’s credibility determinations about the

claimant are to be given great weight, particularly since the ALJ is charged with

observing the claimant’s demeanor and credibility.”) (quotation marks omitted);

Walters, 127 F.3d at 531 (“Discounting credibility to a certain degree is appropriate

where an ALJ finds contradictions among medical reports, claimant’s testimony,

and other evidence.”). “However, the ALJ is not free to make credibility

determinations based solely upon an ‘intangible or intuitive notion about an

individual’s credibility.’” Rogers, 486 F.3d at 247, quoting Soc. Sec. Rul. 96-7p,

1996 WL 374186, *4.

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

conclusive. 42 U.S.C. § 405(g). Therefore, this 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 v.

Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006); Mullen v. Bowen, 800 F.2d

535, 545 (6th Cir. 1986) (en banc). Substantial evidence is “more than a scintilla

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

reasonable mind might accept as adequate to support a conclusion.” Rogers, 486

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F.3d at 241; 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), citing, Mullen, 800 F.2d at 545. 

The scope of this Court’s review is limited to an examination of the record

only. Bass, 499 F.3d at 512-13; Foster v. Halter, 279 F.3d 348, 357 (6th Cir.

2001). When reviewing the Commissioner’s factual findings for substantial

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

including that evidence which might subtract from its weight. 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 v. Comm’r of Soc. Sec.,

245 F.3d 528, 535 (6th Cir. 2001). There is no requirement, however, that either

the ALJ or the reviewing court must discuss every piece of evidence in the

administrative record. Kornecky v. Comm’r of Soc. Sec., 167 Fed. Appx. 496, 508

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

in his written decision every piece of evidence submitted by a party.”) (internal

citation marks omitted); see also Van Der Maas v. Comm’r of Soc. Sec., 198 Fed.

Appx. 521, 526 (6th Cir. 2006).

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B. Governing Law

The “[c]laimant bears the burden of proving his 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 Fed. Appx. 515, 524 (6th Cir. 2003). 

There are several benefits programs under the Act, including the Disability

Insurance Benefits Program (DIB) of Title II (42 U.S.C. §§ 401 et seq.) and the

Supplemental Security Income Program (SSI) of Title XVI (42 U.S.C. §§ 1381 et

seq.). Title II benefits are available to qualifying wage earners who become

disabled prior to the expiration of their insured status; Title XVI benefits are

available to poverty stricken adults and children who become disabled. F. Bloch,

Federal Disability Law and Practice § 1.1 (1984). While the two programs have

different eligibility requirements, “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) (DIB); see also 20 C.F.R. § 416.905(a)

(SSI).

The Commissioner’s regulations provide that disability is to be determined

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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 plaintiff is not performing substantial

gainful activity, has a severe impairment that is expected

to last for at least twelve months, and the severe

impairment meets or equals one of the impairments listed

in the regulations, the claimant is conclusively presumed

to be disabled regardless of age, education or work

experience.

Step Four: If the claimant is able to perform his or her

past relevant work, benefits are denied without further

analysis.

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

her past 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.

Carpenter v. Comm’r of Soc. Sec., 2008 WL 4793424 (E.D. Mich. 2008), citing, 20

C.F.R. §§ 404.1520, 416.920; Heston, 245 F.3d at 534. “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

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and severity of limitations caused by her impairments and the fact that she is

precluded from performing her past relevant work.” Jones, 336 F.3d at 474, cited

with approval in Cruse, 502 F.3d at 540. If the analysis reaches the fifth step

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

Commissioner. Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006). 

At the fifth step, the Commissioner is required to show that “other jobs in

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

given [his] RFC and considering relevant vocational factors.” Rogers, 486 F.3d at

241; 20 C.F.R. §§ 416.920(a)(4)(v) and (g).

If the Commissioner’s decision is supported by substantial evidence, the

decision must be affirmed even if the court would have decided the matter

differently and even where substantial evidence supports the opposite conclusion. 

McClanahan, 474 F.3d at 833; Mullen, 800 F.2d at 545. In other words, where

substantial evidence supports the ALJ’s decision, it must be upheld.

C. Analysis and Conclusions

1. Treating Physician

The undersigned agrees with the Commissioner that Dr. Ayres did not

provide an “opinion” within the meaning of the regulations. The law and the

Social Security regulations recognize a difference between a treating physician’s

treatment notes or comments, and a treating physician’s “medical opinion.” See 20

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C.F.R. § 404.1527(a)(2); Bass v. McMahon, 499 F.3d 506, 510 (6th Cir. 2007)

(finding that a doctor’s observations do not qualify as “medical opinions” under the

Social Security regulations, and “without more, are not the type of information

from a treating physician which will be provided great weight under 20 C.F.R. §

404.1513(b)”); Bowen, 478 F.3d at 749 (noting that a treating doctor’s general

findings are relevant, but not controlling without a residual functional capacity

(“RFC”) assessment). According to the relevant regulation, medical opinions are

defined as statements “that reflect judgments about the nature and severity of [the

claimant’s] impairment(s), including [the claimant’s] symptoms, diagnosis and

prognosis, what [the claimant] can still do despite impairment(s), and [the

claimant’s] physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(2) (emphasis

added). Only opinions of treating physicians are entitled to controlling weight. On

the other hand, mere observations about a claimant’s condition do not qualify as

“medical opinions.” Bass, 499 F.3d at 510 (“Observations about plaintiff’s gait

and ambulation, then, are more like statements made by plaintiff and about his

conditions, statements that the ALJ here found not entirely credible when compared

to the objective medical evidence.”). The Commissioner correctly points out that

Dr. Ayres did not opine that she was disabled, nor did his notes indicate any

functional limitations related to her impairments. (Dkt. 7-7, Pg ID 221-239; Dkt.

7-8, Pg ID 241-266; Dkt. 7-9, Pg ID 269-294; Dkt. 7-10, Pg ID 313-336). Indeed,

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Dr. Ayres’ medical reports do not reflect opinions regarding plaintiff’s symptoms,

diagnosis, or prognosis. See Mitchell v. Comm’r of Soc. Sec., 330 Fed. Appx. 563,

569 (6th Cir. 2009) (“[T]he regulations and our case law also make clear that

before the ALJ must apply the good reasons rule, there must be a genuine assertion

by the treating physician of an opinion involving the claimant’s “symptoms,

diagnosis, and prognosis. A doctor’s report that merely repeats the patient’s

assertions is not credible, objective medical evidence and is not entitled to the

protections of the good reasons rule.”) (internal citation omitted); see also King v.

Comm’r of Soc. Sec., 2013 WL 3456957, at *7 (E.D. Mich. July 9, 2013) (“The

Sixth Circuit has held that the treating source rule does not apply unless there is a

genuine assertion by the treating physician of an opinion involving the claimant’s

“symptoms, diagnosis, and prognosis.”) (internal quotation marks and citations

omitted); SSR 96-2p, 1996 WL 374188, at *2. Here, Dr. Ayres simply did not

offer any opinions regarding plaintiff’s functional limitations for the ALJ to weigh. 

Thus, the undersigned finds no error in this regard. 

2. Sustained work activity

Plaintiff’s complaints that she is not able to perform work on a sustained

basis amount to an improper request for the Court to re-weigh the evidence. 

Essentially, plaintiff is asserting a claim of improper “cherry-picking” of the record

by the ALJ. It is generally recognized that an ALJ “may not cherry-pick facts to

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support a finding of non-disability while ignoring evidence that points to a

disability finding.” Smith v. Comm’r of Soc. Sec., 2013 WL 943874, at *6 (N.D.

Ohio 2013), citing Goble v. Astrue, 385 Fed. Appx. 588, 593 (7th Cir. 2010)

(citation omitted). Yet, “the ALJ does not ‘cherry pick’ the evidence merely by

resolving some inconsistencies unfavorably to a claimant’s position.” Id., quoting

Solembrino v. Astrue, 2011 WL 2115872, at *8 (N.D. Ohio 2011). The

undersigned cannot conduct a de novo review of the record evidence, and the

findings of the ALJ are not subject to reversal merely because there exists in the

record substantial evidence to support a different conclusion. Buxton v. Halter,

246 F.3d 762, 772-73 (6th Cir. 2001) (citation omitted); see also Her v. Comm’r of

Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999) (“Even if the evidence could also

support another conclusion, the decision of the [ALJ] must stand if the evidence

could reasonably support the conclusion reached.”) (citation omitted). This is so

because there is a “zone of choice” within which the Commissioner can act,

without the fear of court interference. Mullen v. Bowen, 800 F.2d 535, 545 (6th

Cir. 1986) (citation omitted). Thus, it is not uncommon in disability cases for there

to be some inconsistencies in the record. It is the duty of the ALJ to resolve any

inconsistencies in the evidence, and the ALJ does not “cherry pick” the evidence

merely by resolving some inconsistencies unfavorably to a claimant’s position. See

Smith, 2013 WL 943874, at *6 (“Rather than describing the ALJ’s actions as

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‘cherry-picking,’ the Sixth Circuit has explained that it could be more neutrally

described as ‘weighing the evidence.’”), citing White v. Comm’r of Soc. Sec., 572

F.3d 272, 284 (6th Cir. 2009). In the view of the undersigned, that is precisely

what the ALJ did here. He weighed the evidence and made a determination,

supported by substantial evidence, that plaintiff is not disabled. The undersigned

sees no evidence of improper “cherry-picking” of the record in order to find that

plaintiff can work on a sustained basis. This is especially true because here, there

is no opinion evidence from any treating physician indicating that plaintiff’s

physical or mental limitations were greater than those found by the ALJ in

formulating the RFC. See Maher v. Sec’y of Health and Human Serv., 898 F.2d

1106, 1109 (6th Cir.1987), citing Nunn v. Bowen, 828 F.2d 1140, 1145 (6th Cir.

1987) (“lack of physical restrictions constitutes substantial evidence for a finding

of non-disability.”). Morever, the opinion of Dr. Montasir, the consulting 2

examiner, fully support the ALJ’s conclusion that plaintiff can perform work on a

sustained basis. Thus, the undersigned finds no error in the ALJ’s determination

that plaintiff could perform work on a sustained basis. 

 The ALJ found that plaintiff’s mental impairments were nonsevere, and plaintiff does 2

not challenge this step two finding. While plaintiff makes some reference to the ALJ’s failure to

account for her ability to concentrate, the ALJ specifically accommodated this concern by

limiting her to simple, unskilled work, based on her pain and medication side effects. And again,

no physician concluded that plaintiff is more limited than as found by the ALJ, with respect to

either her mental or physical limitations.

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3. Sit/stand option for sedentary RFC

Plaintiff argues that a sit/stand option is not consistent with sedentary work. 

Plaintiff’s argument, however, misses the mark. Where, as here, expert vocational

testimony is obtained, as opposed to relying solely on the Grids, sedentary work is

not inconsistent with a sit/stand option. See Sharp v. Barnhart, 152 Fed.Appx.

502, 506-07 (6th Cir. 2005) (rejecting claim that unskilled light work was

inherently inconsistent with a sit/stand option); Bradley v. Sec’y of Health &

Human Servs., 862 F.2d 1224 (6th Cir. 1988) (sit/stand option not inconsistent with

sedentary work if vocational expert identifies jobs that an individual with the

claimant’s residual functional capacity could do); Whiting v. Comm’r of Soc. Sec.,

2013 WL 5595359 (E.D. Mich. 2013) (“SSR 83-12 explicitly recognizes that there

are some ‘light’ jobs that can accommodate a sit/stand option . . . .”). Here, the VE

specifically testified that a sufficient number of jobs in the sedentary work category

were available with both a sit/stand option. It is well-established that sedentary

work is not precluded by a sit/stand option. Rather, this is an issue that must be

addressed by VE testimony, which is precisely what the ALJ did here. Wyatt v.

Comm’r of Soc. Sec., 2014 WL 793643 (E.D. Mich. 2014) (Plaintiff’s RFC also

included a sit/stand option which would not be accounted for by the grids and

would need to be addressed by a VE), citing Lash v. Astrue, 2013 WL 821333, at

*8 (N.D. Ohio 2013). The undersigned finds no reversible error in this regard.

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IV. RECOMMENDATION

For the reasons set forth above, the undersigned RECOMMENDS that

plaintiff’s motion for summary judgment be DENIED, that defendant’s motion for

summary judgment be GRANTED, and that the findings of the Commissioner be

AFFIRMED.

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 of appeal. 

Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health and 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 and 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). 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,” “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

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objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Local Rule 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: March 1, 2016 s/Stephanie Dawkins Davis

Stephanie Dawkins Davis

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on March 1, 2016, I electronically filed the foregoing paper

with the Clerk of the Court using the ECF system, which will send electronic

notification to all counsel of record.

s/Tammy Hallwood

Tammy Hallwood

Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov

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