UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

CLARENCE JIM JIMENEZ, 

 Plaintiff, Civil Action No. 14-CV-13298 

 

v. Honorable Patrick J. Duggan 

COMMISSIONER OF 

SOCIAL SECURITY, 

 

 Defendant. 

_________________________/ 

OPINION AND ORDER (1) ADOPTING THE MAGISTRATE JUDGE’S 

REPORT AND RECOMMENDATION, (2) OVERRULING PLAINTIFF’S 

OBJECTIONS, (3) DENYING PLAINTIFF’S MOTION FOR SUMMARY 

JUDGMENT, and (4) GRANTING DEFENDANT’S MOTION FOR 

SUMMARY JUDGMENT 

This is a social security case. Plaintiff Clarence Jim Jimenez appeals from 

the final determination of the Commissioner of Social Security that he is not 

disabled and, therefore, not entitled to disability insurance benefits and 

supplemental security income. The matter was referred to Magistrate Judge 

Patricia T. Morris for all pretrial proceedings. The parties filed cross-motions for 

summary judgment. On September 1, 2015, Magistrate Judge Morris issued a 

Report and Recommendation (“R&R”), recommending that Defendant’s motion be 

granted and that Plaintiff’s motion be denied. Plaintiff filed objections to the 

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R&R. The Court reviews de novo those portions of the R&R to which a specific 

objection has been made. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Plaintiff advances three objections to the R&R. All of them involve the 

argument that the ALJ failed to incorporate the full extent of Plaintiff’s limitations 

into his residual functional capacity (“RFC”). Specifically, in his first objection, 

Plaintiff argues that the ALJ failed to accommodate in the RFC limitations 

stemming from Plaintiff’s knee impairment; in his second objection, Plaintiff 

argues that the ALJ failed to consider evidence relating to Plaintiff’s depression 

and incorporate limitations resulting from that condition into his RFC; and in his 

third objection, Plaintiff argues that the RFC does not accommodate the full extent 

of Plaintiff’s limitations because it does not take into account Plaintiff’s inability to 

withstand stress. With respect to the third objection, Plaintiff contends that the 

jobs that the vocational expert testified Plaintiff can perform involve a degree of 

stress that Plaintiff cannot tolerate. 

Regarding the first objection, the ALJ discussed Plaintiff’s left knee pain in 

her decision. The ALJ noted that Plaintiff complained of left knee pain in June 

2010 and that an x-ray of Plaintiff’s left knee at that time was “negative.” ALJ 

Decision at 7 (ECF No. 11-2 Page ID 64). The ALJ also noted that an MRI of 

Plaintiff’s left knee in November 2010 revealed a “‘small’ medial meniscal tear, 

small joint effusion, and ‘questionably’ abnormal appearance of the anterior 

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cruciate ligament.” Id. Finally, the ALJ noted that Plaintiff complained of knee 

pain in January 2011. Id. at 8 (Page ID 65). In the RFC, the ALJ limited Plaintiff 

to sedentary work in which Plaintiff sits for most of the day (up to about six hours 

in an eight-hour workday) and stands/walks occasionally (up to about two hours in 

an eight-hour work day). Id. at 5 (Page ID 62). Plaintiff does not explain why 

these limitations do not adequately accommodate his left knee pain. In fact, 

Plaintiff does not point to any evidence suggesting that his knee pain impairs his 

ability to work. Moreover, the record does not specify what positions or activities 

(sitting, standing, running, etc.) cause or exacerbate Plaintiff’s knee pain, and 

Plaintiff’s knee pain was mentioned only very briefly during the hearing before the 

ALJ. Instead, the hearing focused on Plaintiff’s diverticulitis and left shoulder 

pain. Only two questions were asked during the hearing about Plaintiff knee pain – 

when the pain began and what types of problems he was having with his knee – 

and then Plaintiff’s attorney moved on to a different topic without eliciting 

testimony about any work-related limitations resulting from Plaintiff’s knee 

impairment. See 3/4/13 Hr’g at 22-23 (ECF No. 11-2 Page ID 97-98). In sum, 

having reviewed the record, the Court does not find evidence suggesting any 

limitations resulting from Plaintiff’s left knee pain, much less limitations beyond 

those included in the RFC. 

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In his second objection, Plaintiff argues that the ALJ “failed to consider or 

address the evidence regarding [his] depression.” Objections at 2 (ECF No. 18 

Page ID 496). However, Plaintiff’s treatment for depression is discussed 

extensively in the ALJ’s decision. See ALJ Decision at 6-9 (Page ID 63-66). After 

recounting the medical evidence relating to Plaintiff’s depression, the ALJ 

concluded that Plaintiff’s “mental health treatment history . . . demonstrated 

improving depression that was relatively well treated through medication.” Id. at 9 

(Page ID 66). Plaintiff does not explain why he believes the ALJ’s conclusion, or 

the reasoning underlying it, is erroneous and, having reviewed the record, the 

Court concludes that the conclusion is supported by substantial evidence. 

Plaintiff’s third and final objection encompasses two issues. The first is 

Plaintiff’s argument that the RFC is faulty because it does not accommodate his 

purported inability to handle stress. Plaintiff acknowledges that the RFC limits 

him to tasks involving “simple instructions” and “simple tasks,” but argues that 

these limitations do “not account for stress, because although something may be a 

‘simple task’ does not mean that it is not stressful.” Objections at 5 (Page ID 499). 

While Plaintiff may be correct that his RFC does not accommodate stress, the only 

evidence to which Plaintiff points suggesting that he has issues with stress is the 

opinion of Ms. McLaren, a nurse practitioner who opined in a medical source 

statement that Plaintiff was “moderately limited” in his ability to “withstand the 

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stress and pressures associated with an eight-hour work day and day-to-day work 

activity.” ECF No. 11-7 (Page ID 415). However, the ALJ assigned “little 

weight” to Ms. McLaren’s opinion, noting that Ms. McLaren “is not an acceptable 

medical source and her findings are inconsistent with [Plaintiff’s] mental health 

treatment history, which demonstrated improving depression that was relatively 

well treated through medication.” ALJ Decision at 9 (Page ID 66). Plaintiff does 

not challenge the ALJ’s decision to discount Ms. McLaren’s opinion, a decision by 

the ALJ that is entitled to deference on review. See Walters v. Comm’r of Soc. 

Sec., 127 F.3d 525, 530 (6th Cir. 1997) (“[T]he ALJ has the discretion to determine 

the appropriate weight to accord a [nurse practitioner’s] opinion based on all 

evidence in the record since a [nurse practitioner] is not a medical source.”). 

The second issue raised in Plaintiff’s third objection is an argument that the 

Commissioner failed to meet its burden at step five of the familiar five-step 

sequential evaluation process used to determine whether a social security claimant 

is disabled. “At step five, the Commissioner must identify a significant number of 

jobs in the economy that accommodate the claimant’s residual functional capacity 

and vocational profile.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548 (6th 

Cir. 2014). Here, the ALJ relied on the testimony of a vocational expert to 

determine that there are sufficient jobs available for Plaintiff, given his RFC. The 

vocational expert testified that Plaintiff could perform the following three 

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occupations: surveillance system monitor (1,800 positions available in Michigan 

and 74,400 positions available nationally); paper inserter (1,700 positions available 

in Michigan and 80,200 positions available nationally); and order clerk (1,900 

positions available in Michigan and 215,000 positions available nationally). ALJ 

Decision at 12 (Page ID 69). In his summary judgment brief, Plaintiff argued that 

the vocational expert erred in concluding that Plaintiff could perform the job of 

paper inserter because Plaintiff’s RFC limits him to sedentary work and the job of 

paper inserter is classified as “light” work. Both the Commissioner in her 

summary judgment brief and the Magistrate Judge in her R&R assume that 

Plaintiff’s argument is correct. However, the Magistrate Judge accepted the 

Commissioner’s counter-argument that the vocational expert’s mistake is harmless 

because, even if Plaintiff cannot perform the demands of a paper inserter, the 

vocational expert identified two additional occupations that Plaintiff can perform – 

surveillance system monitor and order clerk – both of which are classified as 

sedentary and available in sufficient numbers. See R&R at 23-24 (ECF No. 17 

Page ID 491-92). 

Plaintiff appears to take issue with the Magistrate Judge’s determination that 

the error is harmless, arguing that jobs in the two additional occupations are not 

available in sufficient numbers. However, the Court rejects that argument, as there 

are at least 3,700 positions for Plaintiff in Michigan and 289,400 positions 

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nationally, and those numbers are sufficient. See, e.g., Nejat v. Comm’r of Soc. 

Sec., 359 F. App’x 574, 579 (6th Cir. 2009) (availability of 2,000 jobs regionally 

sufficient to satisfy step five burden); Colon v. Comm’r of Soc. Sec., No. 00-CV0556, 2004 WL 1144059, at *8-9 (N.D.N.Y. Mar. 22, 2004) (availability of 

100,000 jobs nationally and 100 jobs regionally sufficient to satisfy step five 

burden). Moreover, whether the jobs are available locally is irrelevant. See 42 

U.S.C. § 423(d)(2)(A) (“An individual shall be determined to be under a disability 

. . . if his physical or mental impairment or impairments are of such severity that he 

. . . cannot . . . engage in any . . . kind of substantial gainful work which exists in 

the national economy, regardless of whether such work exists in the immediate 

area in which he lives.”); 20 C.F.R. § 404.1566(a)(1) (“We consider that work 

exists in the national economy when it exists in significant numbers either in the 

region where you live or in several other regions of the country. It does not matter 

whether . . . Work exists in the immediate area in which you live.”). 

For these reasons, the Court overrules Plaintiff’s objections to the R&R. 

Accordingly, 

IT IS ORDERED that the Magistrate Judge’s R&R adopted; 

IT IS FURTHER ORDERED that Plaintiff’s objections to the Magistrate 

Judge’s R&R are overruled; 

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IT IS FURTHER ORDERED that Defendant’s motion for summary 

judgment is granted; 

IT IS FURTHER ORDERED that Plaintiff’s motion for summary 

judgment is denied. 

Dated: September 21, 2015 s/PATRICK J. DUGGAN 

 UNITED STATES DISTRICT JUDGE 

Copies to: 

Hugh R. LeFevre, Esq. 

Derri T. Thomas, Esq. 

Karla J. Gwinn, Esq. 

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