UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ANTOINE DION WILLIAMS, 

Plaintiff, 

v. Case No. 14-13677 

COMMISSIONER OF SOCIAL HON. TERRENCE G. BERG 

SECURITY, HON. CHARLES E. BINDER 

Defendant. 

 / 

ORDER ADOPTING REPORT AND RECOMMENDATION 

This matter is before the Court on Magistrate Judge Charles 

Binder’s report and recommendation of June 23, 2015 (Dkt. 12), 

recommending that Plaintiff’s motion for summary judgment be denied, 

that Defendant’s motion for summary judgment be granted, and that 

the findings and conclusions of the Commissioner be affirmed. 

The law provides that either party may serve and file written 

objections “[w]ithin fourteen days after being served with a copy” of the 

report and recommendation. 28 U.S.C. § 636(b)(1). Plaintiff filed 

timely objections (Dkt. 13) to the report and recommendation; 

Defendant filed a response (Dkt. 14) to Plaintiff’s objections. A District 

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Court must conduct a de novo review of the parts of a report and 

recommendation to which a party objects. See 28 U.S.C. § 636(b)(1). “A 

judge of the court may accept, reject, or modify, in whole or in part, the 

findings or recommendations made by the magistrate judge. The judge 

may also receive further evidence or recommit the matter to the 

magistrate judge with instructions.” Id. 

The Court has reviewed Magistrate Judge Binder’s report and 

recommendation, and Plaintiff’s objections thereto. For the reasons set 

forth below, Plaintiff’s objections are OVERRULED, and the report 

and recommendation is ACCEPTED and ADOPTED as the Court’s 

findings of fact and conclusions of law. Consequently, the decision of 

the Commissioner denying Plaintiff’s disability claim is AFFIRMED. 

ANALYSIS 

 A. The Social Security Act 

The Social Security Act (the Act) “entitles benefits to certain 

claimants who, by virtue of a medically determinable physical or mental 

impairment of at least a year’s expected duration, cannot engage in 

‘substantial gainful activity.’” Combs v. Comm’r of Soc. Sec., 459 F.3d 

640, 642 (6th Cir. 2006) (en banc) (quoting 42 U.S.C. § 423(d)(1)(A)). A 

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claimant qualifies as disabled “if []he cannot, in light of h[is] age, 

education, and work experience, ‘engage in any other kind of 

substantial gainful work which exists in the national economy.’” 

Combs, 459 F.3d at 642 (quoting 42 U.S.C. § 423(d)(2)(A)). 

 Under the authority of the Act, the Social Security Administration 

(SSA) has established a five-step sequential evaluation process for 

determining whether an individual is disabled. See 20 C.F.R. § 

404.1520(a)(4). The five steps are as follows: 

In step one, the SSA identifies claimants who “are doing 

substantial gainful activity” and concludes that these 

claimants are not disabled. [20 C.F.R.] § 404.1520(a)(4)(i). If 

claimants get past this step, the SSA at step two considers 

the “medical severity” of claimants’ impairments, 

particularly whether such impairments have lasted or will 

last for at least twelve months. Id. § 404.1520(a)(4)(ii). 

Claimants with impairments of insufficient duration are not 

disabled. See id. Those with impairments that have lasted or 

will last at least twelve months proceed to step three. 

At step three, the SSA examines the severity of claimants’ 

impairments but with a view not solely to their duration but 

also to the degree of affliction imposed. Id. § 

404.1520(a)(4)(iii). Claimants are conclusively presumed to 

be disabled if they suffer from an infirmity that appears on 

the SSA’s special list of impairments, or that is at least equal 

in severity to those listed. Id. § 404.1520(a)(4)(iii), (d). The 

list identifies and defines impairments that are of sufficient 

severity as to prevent any gainful activity. See Sullivan v. 

Zebley, 493 U.S. 521, 532 (1990). A person with such an 

impairment or an equivalent, consequently, necessarily 

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satisfies the statutory definition of disability. For such 

claimants, the process ends at step three. Claimants with 

lesser impairments proceed to step four. 

In the fourth step, the SSA evaluates claimant’s “residual 

functional capacity,” defined as “the most [the claimant] can 

still do despite [her] limitations.” 20 C.F.R. § 404.1545(a)(1). 

Claimants whose residual functional capacity permits them 

to perform their “past relevant work” are not disabled. Id. § 

404.1520(a)(4)(iv), (f). “Past relevant work” is defined as 

work claimants have done within the past fifteen years that 

is “substantial gainful activity” and that lasted long enough 

for the claimant to learn to do it. Id. § 404.1560(b)(1). 

Claimants who can still do their past relevant work are not 

disabled. Those who cannot do their past relevant work 

proceed to the fifth step, in which the SSA determines 

whether claimants, in light of their residual functional 

capacity, age, education, and work experience, can perform 

“substantial gainful activity” other than their past relevant 

work. See id. § 404.1520(a)(4)(v), (g)(1). Claimants who can 

perform such work are not disabled. See id.; § 

404.1560(c)(1). 

Combs, 459 F.3d at 642–43. 

“Through step four, the claimant bears the burden of proving the 

existence and severity of limitations caused by her impairments and the 

fact that []he is precluded from performing h[is] past relevant work.” 

Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). If the 

analysis reaches the fifth step, the burden transfers to the 

Commissioner. See Combs, 459 F.3d at 643. At that point, the 

Commissioner is required to show that “other jobs in significant 

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

given her RFC and considering relevant vocational factors.” Rogers v. 

Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007); 20 C.F.R. §§ 

416.920(a)(4)(v) and (g). 

 Judicial review of the Commissioner’s final decision is authorized 

pursuant to 42 U.S.C. § 405(g). If the Appeals Council denies review, 

then the ALJ’s decision stands as the Commissioner’s final decision. 

See 20 C.F.R. § 404.981. Judicial review, however, is circumscribed 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). Substantial evidence is “such relevant 

evidence as a reasonable mind might accept to support the ALJ’s 

conclusion.” Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007) 

(quotation marks omitted) (quoting Foster v. Halter, 279 F.3d 348, 353 

(6th Cir. 2001)). This substantial evidence standard is less exacting 

than the preponderance of evidence standard. See Bass, 499 F.3d at 

509 (citing Bell v. Comm’r of Soc. Sec., 105 F.3d 244, 246 (6th Cir. 

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1996)). For example, if the ALJ’s decision is supported by substantial 

evidence, “then reversal would not be warranted even if substantial 

evidence would support the opposite conclusion.” Bass, 499 F.3d at 509. 

B. The ALJ’s Decision is Supported by 

Substantial Evidence 

 Plaintiff raises four objections to the Report and Recommendation, 

namely, that Magistrate Judge Binder: (1) erred in finding that the ALJ 

properly evaluated Plaintiff’s purported mood disorder and neck and 

back pain; (2) erred in affirming the ALJ’s evaluation of the Plaintiff’s 

credibility, specifically the ALJ’s rejection of Plaintiff’s testimony 

concerning his need for breaks during the day, and his need to elevate 

his legs; (3) erred in purportedly ignoring the opinion of Plaintiff’s 

treating physician, Dr. Backos, that Plaintiff was totally disabled; and 

(4) erred when he failed to address Plaintiff’s many additional 

arguments in support of disability. As discussed below, none of these 

objections warrants disturbing Magistrate Judge Binder’s 

recommendation. 

i) Neck Impairments and Mood Disorder 

 Plaintiff first objects that Magistrate Judge Binder should have 

recommended a remand, as the ALJ determined that Plaintiff had only 

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one severe impairment at step two – status post non-operative fracture 

of left knee – and failed to recognize Plaintiff’s mood disorder, and Cspine and L-spine impairments, as potentially disabling. It appears, 

then, that Plaintiff is specifically objecting to Magistrate Judge Binder 

conclusion that the ALJ did not reversibly err in failing to recognize 

Plaintiff’s mood disorder and neck and spine conditions as severe 

impairments at step two. 

However, since the ALJ did recognize Plaintiff’s knee fracture as a 

“severe impairment” at step two, Plaintiff cleared step two of the 

analysis and the ALJ proceeded to the subsequent steps. This caused 

the ALJ to consider Plaintiff’s severe and non-severe impairments in 

the remaining steps of the sequential analysis. The fact that some of 

Plaintiff’s impairments were not deemed to be “severe” at step two is 

therefore legally irrelevant, because Plaintiff’s other conditions were 

still being considered at the subsequent steps of the analysis. See 

Anthony v. Astrue, 266 Fed. App’x 451, 457 (6th Cir. 2008); Maziarz v. 

Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987) 

(holding that the failure to find that an impairment was severe was 

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harmless error where other impairments were deemed severe). The 

ALJ’s opinion explicitly acknowledged this, finding at step two that: 

[Plaintiff] has the following identifiable regulatory “severe” 

impairments: 

Status post non-operative fracture of the left knee. 

Non-“severe” mild disc herniation; mild uncovertebral joint 

spurring left at C4-5 with foraminal narrowing but no stenosis. 

The regulatory identified “severe” impairments impose some 

limits on [Plaintiff’s] ability to stand, walk and lift. The non-

“severe” impairments are not independently limiting although do 

act in combination with the “severe” impairments to limit 

[Plaintiff] as I have found when limiting [Plaintiff’s] remaining 

residual functional capacity (Tr. 58). 

In other words, even though the ALJ did not find Plaintiff’s spine 

ailments to be “severe” at step two, the ALJ evaluated the objective 

medical evidence relating to this condition when fashioning Plaintiff’s 

residual functional capacity. 

As to Plaintiff’s alleged “mood disorder,” Plaintiff’s objection does 

not point to any medical evidence in the record that the ALJ supposedly 

ignored. Plaintiff’s objections lack any survey, much less meaningful 

discussion, of the medical record, and Plaintiff likewise failed to show 

any meaningful error in Magistrate Judge Binder’s reasoning. “It is 

well-established that issues adverted to in a perfunctory manner, 

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unaccompanied by some effort at developed argument, are deemed 

waived.” Dillery v. City of Sandusky, 398 F.3d 562, 569 (6th Cir. 2005) 

(internal quotation marks and citations omitted); see also Bishop v. 

Gosiger, Inc., 692 F.Supp.2d 762, 774 (E.D. Mich. 2010) (“It is not 

sufficient for a party to mention a possible argument in a most skeletal 

way, leaving the court to put flesh on its bones” (internal quotation 

marks and citations omitted). Furthermore, the Court has 

independently reviewed the medical records on file, and has not 

uncovered any significant treatment of Plaintiff for a “mood disorder.” 

Additionally, in Plaintiff’s initial disability application, he did not allege 

that he had a “mood disorder” (Tr. 308).1 

In sum, substantial evidence on the record supports the ALJ’s 

finding that Plaintiff retained the residual functional capacity for a 

restricted range of sedentary work activity. Specifically, substantial 

evidence supports the conclusion that Plaintiff’s impairments prevented 

him from working at jobs that exposed workers to temperature 

extremes, high humidity, moving machinery and unprotected heights. 

 

1 Rather, Plaintiff alleged that the following physical or mental conditions limited 

his ability to work: (1) slipped disc in back; (2) pinched nerve in back; (3) severe 

migraines; (4) permanent broken patella in L knee; (5) permanent nerve damage in 

L knee; (6) arthritis in L foot; (7) gastrointestinal problems; and (8) floaters in eye 

(Tr. 308). 

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He was also found incapable of climbing ladders, ramps or scaffolding. 

Nevertheless, the ALJ found that the Plaintiff retained the residual 

functional capacity to perform a significant number of sedentary jobs. 

Plaintiff does not point to any evidence in the record that the ALJ failed 

to analyze in crafting this residual functional capacity. Thus, this 

objection is not well-taken. 

ii) Credibility Determination 

Plaintiff next argues that the ALJ erred in finding that his 

claimed limitations were not supported by the medical evidence and 

were less than fully credible. Specifically, Plaintiff argues that the ALJ 

should have accepted his testimony concerning his need for breaks 

throughout the day, and his need to elevate his legs. “There is no 

question that subjective complaints of a claimant can support a claim 

for disability, if there is also evidence of an underlying medical 

condition in the record.” Jones, 336 F.3d at 475 (citing Young v. Sec’y of 

Health & Human Servs., 925 F.2d 146, 150–51 (6th Cir. 1990)). 

 However, “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.” Id. at 476 (citing Walters, 127 

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F.3d at 531). Notably, an 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.” 

However, they must also be supported by substantial evidence. See 

Walters, 127 F.3d at 531 (citations omitted). 

Here, the ALJ specifically set forth his reasons for discrediting 

Plaintiff’s subjective complaints based on the medical evidence in the 

record and inconsistencies in his testimony. In particular, the ALJ 

found that: 

[Plaintiff’s] allegations are not consistent with his activities. 

Supposedly he is lying down much of the day, yet he goes to 

physical therapy three times a week, he writes music and once or 

twice a year takes a bus to a studio to record it. His cousin 

Dominic visits daily and Dominic was driving at least until he 

broke the grandmother's car. [Plaintiff] also has to pick up his 

medical marijuana himself to stay within the law (Tr. 62). 

Plaintiff’s objections do not cite to any evidence indicating that this 

credibility determination was unsupported by substantial evidence. 

Most notably, Plaintiff does not cite to any objective medical evidence 

indicating that Plaintiff needs breaks throughout the day, or needs to 

elevate his legs. Given that an ALJ’s credibility determinations are to 

be given “great weight,” there is simply not enough contrary evidence in 

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the record to discard the ALJ’s credibility determination. This objection 

is not well-taken. 

iii) Treating Physician 

Next, Plaintiff objects that Magistrate Judge Binder did not 

reverse the ALJ based on his analysis concerning Plaintiff’s treating 

physician, Dr. Backos. This objection is also without merit. In 

assessing the medical evidence supplied in support of a claim, there are 

certain governing standards to which an ALJ must adhere. Key among 

these is that greater deference is generally given to the opinions of 

treating physicians than to those of non-treating physicians, commonly 

known as the treating physician rule. See SSR 96–2p, 1996 WL 374188 

(July 2, 1996); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 

2004). Because treating physicians are “the medical professionals most 

able to provide a detailed, longitudinal picture of [a claimant’s] medical 

impairment(s) and may bring a unique perspective to the medical 

evidence that cannot be obtained from the objective medical findings 

alone,” their opinions are generally accorded more weight than those of 

non-treating physicians. 20 C.F.R. § 416.927(d)(2). Therefore, if the 

opinion of the treating physician as to the nature and severity of a 

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claimant’s conditions is “well-supported by medically acceptable clinical 

and laboratory diagnostic techniques and is not inconsistent with other 

substantial evidence in [the] case record,” then it will be accorded 

controlling weight. Wilson, 378 F.3d at 544. 

When the treating physician’s opinion is not controlling the ALJ, 

in determining how much weight is appropriate, must consider a host of 

factors, including the length, frequency, nature, and extent of the 

treatment relationship; the supportability and consistency of the 

physician’s conclusions; the specialization of the physician; and any 

other relevant factors. Id. However, in all cases there remains a 

presumption, albeit a rebuttable one, that the opinion of a treating 

physician is entitled to great deference, its non-controlling status 

notwithstanding. See SSR 96–2p, 1996 WL 374188, at *4 (“In many 

cases, a treating physician’s medical opinion will be entitled to the 

greatest weight and should be adopted, even if it does not meet the test 

for controlling weight”). 

There is an additional procedural requirement associated with the 

treating physician rule. Specifically, the ALJ must provide “good 

reasons” for discounting treating physicians’ opinions, reasons that are 

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“sufficiently specific to make clear to any subsequent reviewers the 

weight the adjudicator gave to the treating source’s medical opinion and 

the reasons for that weight.” Id. at *5. The purpose of this procedural 

aspect of the treating physician rule is two-fold. First, the explanation 

“‘let[s] claimants understand the disposition of their cases,’ particularly 

where a claimant knows that his physician has deemed him disabled 

and therefore ‘might be bewildered when told by an administrative 

bureaucracy that []he is not, unless some reason for the agency’s 

decision is supplied.’” Wilson, 378 F.3d at 544 (quoting Snell v. Apfel, 

177 F.3d 128, 134 (2d Cir. 1999)). Second, the explanation “ensures 

that the ALJ applies the treating physician rule and permits 

meaningful appellate review of the ALJ’s application of the rule.” Id. 

Magistrate Judge Binder correctly concluded that that the ALJ 

gave “good reasons” for discounting Dr. Backos’s opinion that Plaintiff 

was completely unable to work and required household assistance (Tr. 

471). The reason given was that Dr. Backos offered little objective 

evidence during the relevant period to support his disability 

determination. Moreover, the ALJ discounted Dr. Backos’s opinion 

based upon the “negative” examinations (i.e. no significant findings) of 

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Plaintiff’s other treating physicians, in particular Dr. Eltawahy.2 

Having reviewed the ALJ’s decision, as well as the underlying medical 

records, the Court agrees with the Magistrate Judge that the ALJ’s 

decision to give Dr. Backos’s opinion non-controlling weight was both 

reasonable and adequately explained. The ALJ based his decision on a 

review of all of the physicians and other medical professionals who 

treated and examined Plaintiff, and reached his conclusions based on 

the entire record. Moreover, the Court has also reviewed Dr. Backos’s 

records. The record contains several one-page “disability certificates” 

(see, e.g., Tr. 544, 548, 558) upon which Dr. Backos checked a box 

indicating that Plaintiff is “disabled” from all “work/employment.” 

First, these “certificates” are not entitled to any special deference since 

“[i]t is well settled that the ultimate issue of disability is reserved to the 

Commissioner.” Kidd v. Comm’r of Soc. Sec., 283 Fed. App’x 336, 341 

(6th Cir.2008); Gaskin v. Comm’r of Soc. Sec., 280 Fed. App’x 472, 475–

76 (6th Cir. 2008); 20 C.F.R. § 416.927(e)(1) (Commissioner is 

responsible for deciding the ultimate issue of disability and a statement 

 

2 The ALJ specifically cited to a November 25, 2011 MRI of Plaintiff’s cervical spine 

ordered by Dr. Eltahawy, which showed a mild degenerative change with anterior 

minimal spurs at C4-5 and C5-6 and mild uncovertebral joint spurring on the left at 

C4-5 with foraminal narrowing but no stenosis (Tr. 61). 

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by a medical source that you are “disabled” or “unable to work” does not 

mean that claimant will be found disabled); SSR 96–5p, 61 Fed.Reg. 

34471, 34472, 1996 WL 374183 (1996) (the issue of whether an 

individual is “disabled” under the Act is an administrative finding 

reserved to the Commissioner). Second, the ALJ’s decision to discount 

Dr. Backos’s conclusion that Plaintiff was “disabled” was sound, as this 

result was supported by references to objective medical evidence 

concerning Plaintiff’s condition. In sum, this objection is not well-taken. 

iv) Push-Pull Restrictions 

Finally, Plaintiff objects that Magistrate Judge Binder erred by 

not accepting Plaintiff’s “many additional arguments in support of 

disability.” This objection, therefore, appears to be in the nature of a 

catch-all. The two specific arguments raised by Plaintiff relate to (1) 

the ALJ’s purported failure to “to provide a function by-function 

analysis (omitting Plaintiff’s ability to push and/or pull)” and (2) a 

general objection about a failure to recognize Plaintiff’s alleged mood 

disorder. As to the mood disorder, Plaintiff fails to specify any medical 

evidence in the record relating to a mood disorder which the ALJ 

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allegedly ignored. Indeed, it does not appear that the medical records 

include significant treatment for a mood disorder. 

As to Plaintiff’s ability to push or pull, the Commissioner argues 

persuasively that, even if the ALJ erred in not discussing Plaintiff’s 

purported limitations in his ability to push or pull, the outcome of this 

case would not have changed because the ALJ found Plaintiff limited to 

a reduced range of sedentary work (Tr. 13). SSR 96–9p states 

restrictions on the ability to push or pull will generally have “little 

effect” on the unskilled sedentary occupational base. See Riley v. 

Colvin, No. 1:13-CV-23, 2014 WL 619558, at *4 (E.D. Tenn. Feb. 18, 

2014) citing SSR 96–9p, 1996 WL 374185 at *6. 

In any event, this generalized objection does not demonstrate that 

Magistrate Judge Binder’s recommendation should not be adopted. 

CONCLUSION 

For the reasons set forth above, 

It is hereby ORDERED that Magistrate Judge Binder’s report 

and recommendation of June 23, 2015 (Dkt. 12) is ACCEPTED and 

ADOPTED. 

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It is FURTHER ORDERED that Plaintiff’s motion for summary 

judgment (Dkt. 10) is DENIED and Defendant’s motion for summary 

judgment (Dkt. 11) is GRANTED. 

It is FURTHER ORDERED that the findings and conclusions of 

the Commissioner are AFFIRMED. 

SO ORDERED. 

s/Terrence G. Berg 

TERRENCE G. BERG 

UNITED STATES DISTRICT JUDGE 

Dated: September 30, 2015 

Certificate of Service 

I hereby certify that this Order was electronically submitted on 

September 30, 2015, using the CM/ECF system, which will send 

notification to each party. 

 By: s/A. Chubb 

Case Manager 

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