UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LEVON WALKER

Plaintiff,

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

_____________________________________/

Case No. 14-13679

Patrick J. Duggan

United States District Judge

Michael Hluchaniuk

United States Magistrate Judge

REPORT AND RECOMMENDATION

CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkt. 10, 12)

I. PROCEDURAL HISTORY

A. Proceedings in this Court

On September 23, 2014, plaintiff filed the instant suit seeking judicial

review of the Commissioner’s partially favorable decision that plaintiff was not

disabled and thus not entitled to disability insurance benefits from his alleged

onset date of March 31, 2011 to the ALJ-established onset date of June 26, 2012. 

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

Judge Patrick J. Duggan referred this matter to the undersigned for the purpose of

reviewing the Commissioner’s decision denying plaintiff’s claim for benefits. 

(Dkt. 3). This matter is before the Court on cross-motions for summary judgment. 

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(Dkt. 10, 12).

B. Administrative Proceedings

Plaintiff filed the instant claims for a period of disability, disability

insurance and benefits on April 4 , 2011, alleging disability beginning March 31,

2011. (Dkt. 1, Pg ID 2). Plaintiff’s claims were initially disapproved by the

Commissioner on July 2, 2011. Id. Plaintiff requested a hearing and on March 16,

2012 plaintiff appeared, along with his attorney, before Administrative Law Judge

(“ALJ”) Oksana Xenos, who considered the case de novo. (Dkt. 7-2, Pg ID 66-

87). In a decision dated April 6, 2012, the ALJ found that plaintiff was not

disabled. (Dkt. 7-3, Pg ID 124-131). Plaintiff requested a review of this decision

on May 4, 2012. (Dkt. 7-4, Pg ID 190). The Appeals Council vacated the

decision and remanded the case to the ALJ on July 30, 2013. (Dkt. 7-3, Pg ID

136-138). The Appeals Council instructed the ALJ, on remand, to:

• Further consider the claimant’s maximum residual functional capacity

during the entire period at issue and provide rationale with specific

references in the record in support of alleged limitations (20 CFR 404.1545

and Social Security Rulings 85-16 and 96-8p). If available, the additional

evidence should include a consultative orthopedic examination and medical

source statements about what the claimant can still do despite his

impairments;

• Further consider the claimant’s maximum residual functional capacity

during the entire period at issue and provide rationale with specific

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references in the record in support of alleged limitations (20 CFR 404.1545

and Social Security Rulings 96-8p).

• Obtain supplemental evidence from a vocational expert to clarify the effect

of the assessed limitations on the claimant’s occupational base (Social

Security Ruling 83-14). The hypothetical questions should reflect the

specific capacity/limitations established by the record as a whole. The

Administrative Law Judge will ask the vocational expert to identify

examples of appropriate jobs and to state the incidence of such jobs in the

national economy (20 C.F.R. §§404.1566 and 416.966). Further, before

relying on the vocational expert evidence the Administrative Law Judge will

identify and resolve any conflicts between the occupational evidence

provided by the vocational expert and information in the Dictionary of

Occupational Titles (DOT) and its companion publication, the Selected

Characteristics of Occupations (Social Security Ruling 00-4p).

(Id.)

Plaintiff again appeared and testified before the ALJ at a hearing held on

January 22, 2014. (Dkt. 7-2, Pg ID 88-109). In a decision dated March 3, 2014,

the ALJ found that Plaintiff was not under a disability within the meaning of the

Social Security Act prior to June 26, 2012, but became disabled on that date and

continued to be disabled through the date of the decision. (Dkt. 7-2, Pg ID 60). 

Plaintiff again requested Appeals Council review of this decision. (Dkt. 7-2, Pg ID

45).

The ALJ’s decision became the final decision of the Commissioner, see

Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004), on August 2,

2014, when the Appeals Council denied Plaintiff’s request for review. (Dkt. 7-2,

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Pg ID 34-36). 

For the reasons set forth below, the undersigned RECOMMENDS that

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

summary judgment be GRANTED, and that this matter be REMANDED for

further proceedings.

II. FACTUAL BACKGROUND

A. Appeals Council Remand Order

The Appeals Council granted plaintiff’s request for review of the ALJ’s

April 6, 2012 decision. (Dkt. 7-3, Pg ID 136). The Appeals Council vacated the

hearing decision and remanded this case for further proceedings. The decision

indicated the plaintiff had the severe impairment of "reduced vision"and the

residual functional capacity for work at all exertional levels, not involving

working with small objects, such as screws and coins, precision work, fineprint, or

commercial driving, work around hazards, at heights, or moving machinery. The

plaintiff was found not disabled at step 5 of the sequential evaluation, specifically

that he could perform light jobs as an information clerk/greeter and hand

packager and medium jobs as a cleaner (DOT 381-687-018) and packager (DOT

920.587-018). 

The Appeals Council observed that if limited to light jobs, the Medical

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Vocational Rules in Appendix 2 of 20 CFR Part 404, Subpart P, would direct a

finding of disabled, considering the plaintiff was closely approaching retirement

age on the alleged disability onset date, has a high school education, and unskilled

past relevant work as a vending machine attendant. As described in the Dictionary

of Occupational Titles, however, both of the light jobs require frequent near acuity

and both of the medium jobs involve occasional near acuity ("clarity of vision at

20 inches or less"). The Appeals Council noted that plaintiff alleged that he has

difficulty reading newspapers, mail, and bills, writing checks, and seeing his

computer screens. Plaintiff received vision rehabilitation training on May 19, 2011

and was given a 4X handheld magnifier, +3.00 upper clip-on, and amber clip-ons

to enable him to do spot reading, use a computer, and improve performing daily

living tasks. Plaintiff testified that he used a hand-held magnifying glass to read

the newspaper. The residual functional capacity did not include the need for a

hand-held magnifier for reading, but precludes work involving fine print or small

objects. The Appeals Council determined it was unclear if the claimant can

perform the visual acuity required by the jobs cited in the decision (occasional

need for clarity of vision at 20 inches or less) if the claimant needs to use a

hand-held magnifying glass to achieve this level of visual acuity. Thus, according

to the Appeals Council, further consideration at step 5 of the sequential evaluation

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was warranted. The Appeals Council instructed the ALJ, on remand, to:

• Further consider the claimant’s maximum residual functional capacity

during the entire period at issue and provide rationale with specific

references in the record in support of alleged limitations (20 CFR 404.1545

and Social Security Rulings 85-16 and 96-8p). If available, the additional

evidence should include a consultative orthopedic examination and medical

source statements about what the claimant can still do despite his

impairments;

• Further consider the claimant’s maximum residual functional capacity

during the entire period at issue and provide rationale with specific

references in the record in support of alleged limitations (20 CFR 404.1545

and Social Security Rulings 96-8p).

• Obtain supplemental evidence from a vocational expert to clarify the effect

of the assessed limitations on the claimant’s occupational base (Social

Security Ruling 83-14). The hypothetical questions should reflect the

specific capacity/limitations established by the record as a whole. The

Administrative Law Judge will ask the vocational expert to identify

examples of appropriate jobs and to state the incidence of such jobs in the

national economy (20 C.F.R. §§404.1566 and 416.966). Further, before

relying on the vocational expert evidence the Administrative Law Judge will

identify and resolve any conflicts between the occupational evidence

provided by the vocational expert and information in the Dictionary of

Occupational Titles (DOT) and its companion publication, the Selected

Characteristics of Occupations (Social Security Ruling 00-4p).

(Id.)

B. ALJ Findings on Remand

Plaintiff was born in 1947 and was 66 years old at the time of the

administrative hearing, 65 years old on the established onset date of disability and

63 years old on the alleged onset date of disability. (Dkt.7-2, Pg ID 54). The ALJ

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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 step two, the ALJ found that plaintiff’s reduced vision was a “severe

impairment” within the meaning of the second sequential step since the alleged

on-set date of March 31, 2011 and that his reduced vision, degenerative disc

disease, lumbar spondylosis, and kidney disease were serious impairments as of

the established onset date of disability, June 26, 2012. Id. Plaintiff’s hypertension

and diabetes were considered nonsevere impairments. Id. At step three, the ALJ

found no evidence that plaintiff’s combination of impairments met or equaled one

of the listings in the regulations. (Dkt. 7-2, Pg ID 54-55). The ALJ determined

that plaintiff had the following residual functional capacity (“RFC”):

After careful consideration of the entire record, the

undersigned finds that prior to June 26, 2012, the date 

the claimant became disabled, the claimant had the

residual functional capacity to perform a full range of

work at all exertional levels but with the following

nonexertional limitations: the claimant could never climb

ladders, ropes or scaffolds; can only frequently climb

ramps and stairs; claimant was required to avoid hazards

such as moving machinery and unprotected heights;

claimant could work with large objects, but not small

objects, such as screws or coins; claimant could not

perform commercial driving or monitor a computer

screen; claimant could perform work requiring only

occasional near acuity.

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(Dkt. 7-2, Pg ID 55). At step four, the ALJ concluded that plaintiff could not

perform his past relevant work as a vending machine operator. (Dkt. 7-2, Pg ID

59). At step five, the ALJ denied plaintiff benefits prior to June 26, 2012,

because before that date, plaintiff could perform a significant number of jobs

available in the national economy. (Dkt. 7-2, Pg ID 59-60).

C. Plaintiff’s Claims of Error

According to plaintiff, the ALJ committed reversible error by failing to

comply with the Appeals Council’s remand order, by relying on Vocational Expert

testimony that conflicts with the Medical-Vocational Guidelines and by failing to

seek input from a Medical Advisor to determine the onset date of plaintiff’s

impairments. (Dkt. 10, Pg ID 501).

Plaintiff argues that, despite the Appeals Council’s clear directive to include

the plaintiff’s use of a hand-held magnifying device in the RFC, the ALJ erred by

failing to include it in the RFC, and in the hypotheticals presented to the VE. (Dkt.

10, Pg ID 511). Although plaintiff’s counsel asked the VE to consider the use of

the hand-held magnifying device prescribed to plaintiff, the VE testified that he

did not know whether that would prevent plaintiff from performing the identified

jobs. Id. Plaintiff contends this error requires remand.

Plaintiff also argues that the ALJ erred by finding plaintiff capable of

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performing medium work given his spine disorders and the VE’s testimony that

his past work was light and unskilled, with no transferrable skills. (Dkt. 10, Pg ID

513). Plaintiff argues that this conclusion, along with ignoring plaintiff’s need for

a magnifying device results in findings not supported by substantial evidence. Id.

Finally, plaintiff argues that the ALJ erred by not utilizing the services of a

medical advisor to infer an onset date prior to plaintiff’s diagnosis with severe

spondylosis. (Dkt. 10, Pg ID 515). Plaintiff argues that a condition so extensive

and beyond surgical intervention could not have arisen contemporaneously with

his diagnosis in June 2012. Id. Accordingly, plaintiff urges a remand to allow for

medical advisor input. Id.

D. The Commissioner’s Motion for Summary Judgment

In addressing plaintiff’s arguments that the ALJ did not comply with the

Appeals Council’s remand order, the Commissioner argues that the Appeals

Council did not direct the ALJ to include the use of a hand-held magnifying

device in the RFC, but rather it instructed the ALJ to assess if plaintiff could

perform the jobs identified by the VE if plaintiff needed to use the assistive device. 

(Dkt. 12, Pg ID 528-529). The Commissioner contends the ALJ did just that on

remand. (Dkt. 12, Pg ID 529). The Commissioner further argues that substantial

evidence supports the ALJ’s finding that plaintiff was capable of occasional near

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vision acuity despite his complaints about difficulty reading the newspaper, mail

and bills, writing checks and using a computer, because he was able to perform

self-care, prepare meals, wash dishes, sweep and mop the floor, take out the trash,

go outside everyday, walk and ride in a car, pay bills, count change, manage his

finances, be active at home with his children and grandchildren and reported no

safety concerns. (Dkt. 12, Pg ID 530).

The Commissioner further argues that substantial evidence supported the

ALJ’s determination that plaintiff’s back condition was not disabling prior to June

26, 2012. (Dkt. 12, Pg ID 531). The Commissioner contends the ALJ’s finding

was supported by substantial evidence because plaintiff did not seek treatment

before June 26, 2012, his back pain prior to that was relieved with over-thecounter medication, and he was able to engage in a range of activities including

playing with his grandchildren and performing household chores. Id citing White

v. Comm’r of Soc. Sec., 572 F.3d 272, 283-284 (6 Cir. 2009)(lack of treatment

th

implies an alleviation or absence of symptoms); Mullen v. Bowen, 800 F.2d 535,

547-548 (6 Cir. 1986)(pain which is responsive to medication is not disabling);

th

Blacha v. Sec’y of Health & Human Servs., 972 F.2d 228, 231 (6 Cir. 1990)(an th

ALJ may consider household and social activities in evaluating a claimant’s

subjective complaints). 

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Finally, the Commissioner argues that the ALJ did not err by not enlisting

the services of a medical advisor in determining the disability onset date. (Dkt. 12,

Pg ID 532). The Commissioner contends that the ALJ was acting within her

discretion in deciding the case without a medical advisor because the medical

evidence did not support a disabling level of impairment during the period at

isuue. (Dkt. 12, Pg ID 532-533) citing Clendening v. Comm’r of Soc. Sec., 482

Fed. App’x 93, 95-96 (6 Cir. 2012) and McClanahan v. Comm’r of Soc. Sec., 474

th

F.3d 830, 836-837 (6 Cir. 2006). According to the Commissioner, the medical th

evidence was developed and carefully reviewed by the ALJ, and thus a medical

advisor’s services were not necessary. (Dkt. 12, Pg ID 533).

III. 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

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

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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.

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

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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

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,

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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).

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);

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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

through the application of a five-step sequential analysis:

Step One: If the claimant is currently engaged in

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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

Plaintiff argues that the Appeals Council directed the ALJ to include

plaintiff’s use of a hand-held magnifying device in the RFC, whereas the

Commissioner contends the order was merely to assess whether the VE-identified

jobs could be performed if a hand-held magnifying device was necessary. The

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undersigned finds that either interpretation of the Appeals Council’s order requires

remand. The ALJ clearly did not include plaintiff’s use of the prescribed handheld magnifying device in the revised RFC. (Dkt. 7-2, Pg ID 55). She also did not

assess whether plaintiff could perform the identified jobs with the use of the handheld magnifying device or whether plaintiff’s use of the device was necessary.

1

The RFC assessment must include a discussion of why reported

symptom-related functional limitations and restrictions can or cannot

reasonably be accepted as consistent with the medical and other

evidence. [Moreover,] the RFC assessment must always consider and

address medical source opinions. If the RFC assessment conflicts

with an opinion from a medical source, the adjudicator must explain

why the opinion was not adopted. Medical opinions from treating

sources about the nature and severity of an individual's impairment(s)

are entitled to special significance and may be entitled to controlling

weight. If a treating source's medical opinion on an issue of the nature

and severity of an individual's impairment(s) is well-supported by

medically acceptable clinical and laboratory diagnostic techniques

and is not inconsistent with the other substantial evidence in the case

record, the adjudicator must give it controlling weight.

SSR 96-8p (internal citations omitted). Accordingly, the ALJ’s failure to discuss

why a hand-held magnifying device was not necessary for near vision acuity

constitutes reversible error. The device, along with other visual-assistive devices,

was prescribed by plaintiff’s treating ophthalmologist to address plaintiff’s

 The ALJ did not present the VE with a hypothetical including the use of a hand-held magnifying 1

device. Plaintiff’s counsel directed such a question to the VE, but did not receive an answer. (Dkt. 7-

2, Pg ID 107-108).

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medically-supported near-vision impairment. (Dkt. 7-7, Pg ID 380-385). As noted

by one of plaintiff’s treating ophthalmologists, the use of the assistive devices

increased his Functional Independence Measure (FIM), a 1-6 scale used to rate the

level of independence in performing daily living tasks, from a 1.5 to a 5.5 in spot

reading and from a 1.5 to a 4.5 in computer use. (Dkt. 7-7, Pg ID 380). The ALJ

cites nothing in the medical record of evidence that is inconsistent with plaintiff’s

need for the hand-held magnifying device for near vision acuity. (Dkt. 7-2, Pg ID

51-61). In light of the treating physicians’ opinion regarding the magnifying

device’s demonstrable impact on plaintiff’s ability to perform daily living tasks,

the ALJ’s failure to explain why the RFC does not include plaintiff’s use of a

magnifying device violates the dictates of both SSR 96-8p and the Appeals

Council’s remand order and thus requires remand. Because this matter is being

2

remanded for further proceedings, and in the interests of judicial economy, the

undersigned will not consider Plaintiff’s remaining assignments of error.

 Had the VE provided an answer to plaintiff’s counsel’s direct question about the hand-held 2

magnifying device’s impact on plaintiff’s ability to perform the identified jobs, remand may well have

been unnecessary. See Faucher v. Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994)

(“If a court determines that substantial evidence does not support the Secretary’s decision, the court can

reverse the decision and immediately award benefits...if all essential factual issues have been resolved

and the record adequately establishes a plaintiff's entitlement to benefits.”); see also, Mowery v.

Heckler, 771 F.2d 966, 973 (6th Cir. 1985) (A court may directly award benefits, rather than remanding

for proper consideration by the ALJ, where the record is complete and the Commissioner’s decision is

clearly erroneous, proof of disability is strong and evidence to the contrary is lacking, or the claimant

has presented overwhelming evidence of disability.).

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IV. RECOMMENDATION

For the reasons set forth above, the undersigned RECOMMENDS that

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

for summary judgment be DENIED, that the findings of the Commissioner be

REVERSED, and that this matter be REMANDED for further proceedings.

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

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objection, the opposing party may file a concise response proportionate to the

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: August 19, 2015 s/Michael Hluchaniuk

Michael Hluchaniuk

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on August 19, 2015, 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

Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov

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