UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CHARLES F. MARTIN,

Plaintiff Civil Action No. 14-14343

v. HON. VICTORIA A. ROBERTS

 U.S. District Judge

HON. R. STEVEN WHALEN

COMMISSIONER OF SOCIAL U.S. Magistrate Judge

SECURITY,

Defendant.

__________________________________/

REPORT AND RECOMMENDATION

Plaintiff Charles Martin (“Plaintiff”) brings this action pursuant to 42 U.S.C. §405(g),

challenging a final decision of Defendant Commissioner denying his application for

Disability Insurance Benefits and Supplemental Security Income under the Social Security

Act. Both parties have filed summary judgment motions which have been referred for a

Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth

below, I recommend that Defendant’s motion for summary judgment [Doc. #14] be

GRANTED and that Plaintiff’s motion [Doc. #13] be DENIED. 

PROCEDURAL HISTORY

Plaintiff filed applications for Disability Insurance Benefits (“DIB”) and

Supplemental Security Income (“SSI”) on November 2, 2011, alleging disability beginning

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January 20, 2010 (Tr. 147, 153). After the initial denial of the claim, Plaintiff requested an

administrative hearing, held on April 17, 2013 before Administrative Law Judge (“ALJ”)

David Neumann (Tr. 34). Plaintiff, represented by attorney Steven Harthorne, testified (Tr.

37-66), as did vocational expert (“VE”) Don Harrison (Tr. 66-69). On July 24, 2013, ALJ

Neumann found Plaintiff not disabled (Tr. 29). On September 15, 2014, the Appeals Council

denied review (Tr. 1-3). Plaintiff filed for judicial review of the final decision on November

12, 2014. 

BACKGROUND FACTS

Plaintiff, born January 14, 1986, was 27 at the time of the administrative decision (Tr.

29, 147). He completed one year of college (Tr. 182) and worked previously as a pizza

delivery driver, fast food worker, and a factory worker (Tr. 182). He alleges disability due

to depression, Post Traumatic Stress Disorder (“PTSD”), chronic back pain, and kidney,

knee, and hip problems (Tr. 181). 

A. Plaintiff’s Testimony

Plaintiff offered the following testimony:

He currently lived in Gibraltar, Michigan (Tr. 37). He underwent left knee surgery

in April, 2007 and had a “severely atrophic” right kidney (Tr. 38). He lived with his

girlfriend and her mother (Tr. 45). He was right-handed, stood 6'2" and weighed 315 pounds

(Tr. 45). He attended college for one semester (Tr. 26).

Plaintiff required the use of a cane (Tr. 46). He was unable to work due to walking

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and sitting limitations resulting from right hip and leg pain (Tr. 47). Plaintiff, a half-pack-aday smoker, experienced shortness of breath “all the time” (Tr. 48). In March, 2011, he 

injured his hand moving a 900-pound pizza oven (Tr. 48, 52). He worked as a cashier until

March, 2011 when he injured his hand (Tr. 50). In December, 2010, he spent one day

hauling drywall to a dumpster (Tr. 51). He stopped working “on the payroll” as of January,

2010 (Tr. 54). 

Plaintiff currently took Vicodin for pain and Paxil for anxiety and depression (Tr. 54). 

He was unable to walk more than 20 feet (Tr. 55). He had been able to lift up to 100 pounds

through March, 2011 but had not since done any lifting, carrying, pushing, or pulling (Tr. 55-

56). On a typical day, he would arise at 9:30 or 10:00 a.m. and retire at 3:00 a.m. (Tr. 56). 

He experienced sleep disturbances and customarily took a one-hour nap each day (Tr. 56). 

He was able to care for his personal needs but did not shop (Tr. 56). He did not cook and

was unable to wash dishes by hand, vacuum, sweep, mop, take out trash, or perform yard

work (Tr. 57-58). His girlfriend performed all of the laundry chores (Tr. 57). He had not

attended church since January, 2010 (Tr. 57). He was able to drive up to 20 minutes at a time

(Tr. 58). He spent time each day lying on the couch watching television (Tr. 58). He did not

use a computer, but read novels (Tr. 58). He denied the use of recreational drugs but

acknowledged that he drank two beers on his last birthday (Tr. 59). 

In response to questioning by his attorney, Plaintiff testified that the hip problems

began in high school after he sustained a football injury (Tr. 60). His hip condition had

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worsened since high school (Tr. 61). He reported that he dislocated his right hip a few

months before the hearing, adding that his girlfriend, rather than a medical source, “popped

it back in place” (Tr. 61). He stated that his girlfriend payed for his medication (Tr. 61-62). 

Plaintiff reported that due to a “shredded meniscus” he also experienced left knee pain in

damp weather (Tr. 62). He reiterated that he experienced shortness of breath and fatigue (Tr.

63). He reported the side effect of sleepiness from prescribed medications (Tr. 63). He

opined that he would be unable to fulfill the standing and sitting requirements of full-time

work (Tr. 63). He testified that he coped with shooting leg pain by having his girlfriend rub

his leg (Tr. 64). Valium and Vicodin created concentrational problems (Tr. 64). 

B. Medical Evidence1

1. Records Related to Plaintiff’s Treatment

In July, 2009, Plaintiff sought emergency treatment for left foot pain (Tr. 257). 

Plaintiff was diagnosed with a small avulsion fracture (Tr. 258, 261). He was prescribed

Motrin 800 and discharged (Tr. 258). In June, 2010, he sought treatment after an injury to

the right flank resulted in hematuria (Tr. 264). He reported a history of depression (Tr. 265). 

A physical examination was otherwise unremarkable (Tr. 265-266). He was discharged in

stable condition (Tr. 268). The following month, Plaintiff sought treatment for unexplained

lower back pain (Tr. 278). He was prescribed Vicodin upon discharge (Tr. 280). Treating

1

Medical records significantly predating the alleged June 30, 2010 onset of disability, while

reviewed in full, have been omitted from the present discussion. 

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records note a normal gait full use of the extremities (Tr. 278). Later the same month,

Plaintiffsought emergency treatment for knee and back pain after injuring his back (Tr. 229). 

Treating notes state that Plaintiff was born without a left kidney (Tr. 229). Plaintiff

exhibited a steady gait and normal extremity movement (Tr. 230). X-rays of the thoracic

spine and left knee were unremarkable (Tr. 235-236). The following month, Plaintiffsought

emergency treatment for right hip pain after taking a fall (Tr. 239, 509, 513). A physical

examination was unremarkable (Tr. 240, 245). September, 2010 emergencyroomnotes state

that he reported ongoing right hip pain (Tr. 282). Plaintiff displayed a limited range of right

hip motion (Tr. 283). Imaging studies of the hip were unremarkable (Tr. 287-288). Later

the same month, he sought treatment for hand pain (Tr. 292). Treating records note a normal

gait (Tr. 292). He exhibited hand swelling but a normal range of motion (Tr. 301). 

In March, 2011, Plaintiff sought emergency treatment after being “crushed” between

a pizza oven and a truck tailgate (Tr. 299). Imaging studies of the right hand were

unremarkable (Tr. 303). In June, 2011, he sought non-urgent treatment for hip pain (Tr.

307). He reported a “popping” hip after doing yard work (Tr. 308). X-rays of the right hip

were unremarkable (Tr. 311, 313). Treating notes from the following month note continued

hip pain and anxiety (Tr. 337). Dr. Leila Haddad found that Plaintiff’s condition was

“deteriorating” due to pain and decreased range of motion (Tr. 492). In August, 2011,

Plaintiff sought treatment for a bee sting (Tr. 317). In October, 2011, Plaintiff sought

emergency treatment for upper right leg pain (Tr. 249). Treating staff noted a normal gait

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and the normal use of all extremities (Tr. 250). An x-ray of the pelvis was negative for

abnormalities (Tr. 254). Later the same month, he sought non-urgent treatment after falling

on steps (Tr. 325). He exhibited an antalgic gait (Tr. 327). Imaging studies were

unremarkable (Tr. 331-332). He was prescribed Vicodin (Tr. 333). The following month,

Plaintiff sought treatment for shoulder pain following a fall (Tr. 431). No swelling or

bruising was noted (Tr. 428). Imaging studies of the right shoulder were unremarkable (Tr.

433). 

January, 2012 x-rays of the left elbow, taken in response to Plaintiff’s report of injury,

were negative for abnormalities (Tr. 424). June, 2012 x-rays of the right hip, left foot, and

left ankle, taken in response to Plaintiff’s report of an ankle injury, were unremarkable (Tr.

412, 417-419). Treating records by Dr. Nurse Practitioner (“DNP”) Andrea Connors state

that Plaintiff reported “extreme pain” (Tr. 550). The following month, she noted the

diagnoses of anxiety and lumbago (Tr. 596). October, 2012 imaging studies of the right hip

were unremarkable (Tr. 504). Treating records note Plaintiff’s report of increased hip pain

(Tr. 547). In November, 2012, Dr. Connors stated that Plaintiff had not experienced “new

issues” and had not “followed up” with psychological referrals (Tr. 594). December, 2012

treating records state that Plaintiff had a history of degenerative hip disease with “frequent

dislocations” (Tr. 460). Physician’s Assistant (“PA”) Don Wilkins opined that Plaintiff

would “likely need surgery” (Tr. 460). 

March, 2013 treating records state that Plaintiff experienced chronic pain and anxiety

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(Tr. 567). In April, 2013, Dr. Haddad completed a Medical Source Statement, finding that

Plaintiff was limited to lifting 10 pounds on an occasional basis and was unable to walk even

two hours in an eight-hour workday (Tr. 514). She found that Plaintiff experienced pushing

and pulling limitations in the upper and lower extremities (Tr. 514). She noted manipulative

limitations in reaching and handling (Tr. 515). She found that Plaintiff’s condition was

limited by chronic pain, falls, a reduced range of motion, and an unsteady gait (Tr. 515). 

June, 2013 records note the conditions ofChronic Pain Syndrome, hypertension, obesity, and

digestive problems (Tr. 598). Plaintiff was referred for an orthopedic surgery evaluation (Tr.

599). 

 2. Non-Treating Sources

In February, 2012, Harold Nims, D.O. performed a consultive physical examination,

noting Plaintiff’s claim that he was unable to walk for more than one block due to right hip

and lower back pain (Tr. 339). Plaintiff also alleged anxiety and PTSD due to being

separated from his parents as a small child (Tr. 340). He reported working as a delivery

driver and cook, adding that he last worked in July, 2011 as a cook (Tr. 341). 

Dr. Nims noted that Plaintiff used a cane and had a slightly antalgic gait (Tr. 341). 

A physical examination was unremarkable except for “some hip joint tenderness” (Tr. 342). 

Dr. Nims concluded that Plaintiff’s “physical problems [were] not over impressive” (Tr.

343). He noted that Plaintiff did “not seem to be terribly invested in resolving” the alleged

“physical and emotional problems” (Tr. 344). 

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C. The Vocational Testimony

VE Harrison testified that none of Plaintiff’s past relevant work skills were

transferrable to other positions (Tr. 66, 225). The ALJ then described a hypothetical

individual of Plaintiff’s age, education and work history:

[A]ssume a . . . person individual . . . who can only lift or carry 10 pounds

frequently and 15 pounds occasionally, who can stand or walk with normal

breaks for a total of one hour in an eight-hour workday who could sit with

normal breaks for a total seven hours in an eight-hour workday, who should

avoid frequent ascending and descending stairs, who could perform pushing

and pulling motions with their upper and lower extremities within those weight

restrictions but only occasional pushing or pulling with the right lower

extremity, who should be restricted to stable temperatures, who could perform

each of the following postural activities occasionally, climbing ramps and

stairs, balancing, stooping, kneeling, crouching or crawling, who should avoid

climbing ropes, ladders and scaffolds and who would require work in a low

stress job defined as having no more than occasional changes in the work

setting and given those restrictions could such a person perform any of the

claimant’s past work that you’ve identified? (Tr. 67).

The VE testified that the above restrictions would preclude Plaintiff’s past relevant

work, but would allow the hypothetical individual to perform the sedentary, unskilled work 2

of a bench assembler (2,000 positions in the regional economy); circuit board inspector

(1,500); and surveillance system monitor (1,500) (Tr. 68). The VE testified further that if

2

20 C.F.R. § 404.1567(a-d) defines sedentary work as “lifting no more than 10 pounds

at a time and occasionally lifting or carrying articles like docket files, ledgers, and small

tools; light work as “lifting no more than 20 pounds at a time with frequent lifting or

carrying of objects weighing up to 10 pounds;” medium work as “lifting no more than 50

pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds;” and

that exertionally heavy work “involves lifting no more than 100 pounds at a time with

frequent lifting or carrying of objects weighing up to 50 pounds. 

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the same individual also required the use of a cane “but the contra lateral upper extremity

could be used to lift and carry,” the job testimonywould remain unchanged (Tr. 68). The VE

testified that the need to be off task for 20 percent of the work day, or, the inability to sit for

more than two hours and stand or walk for more than one hour would preclude all work (Tr.

69). In response to questioning by Plaintiff’s attorney, the VE stated that an absentee rate

of more than one-and-a-half days each month would preclude all competitive employment

(Tr. 69). 

D. The ALJ’s Decision

Citing the medical records, ALJ Neumann found that Plaintiff experienced the severe

impairments of “obesity, chronic dislocations of right hip with mild degenerative changes,

and status post meniscectomy of left knee” but that none of the conditions met or medically

equaled any listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 15-16). 

The ALJ found that Plaintiff retained the Residual Functional Capacity for sedentary work

with the following additional limitations:

[C]an only lift or carry 10 pounds frequently, and 15 pounds occasionally

(from very little, up to one third of an [eight]-hour work day); can stand and/or

walk (with normal breaks) for a total of one hour in an eight-hour work day;

can sit (with normal breaks) for a total of seven hours in an eight-hour work

day; should avoid frequent ascending and descending of stairs; can perform

pushing and pulling motions with his upper and lower extremities within the

aforementioned weight restrictions but only occasional pushing/pulling with

thei right lower extremity; should be restricted to stable temperatures; can

perform each of the following postural activities occasionally: climbing

(ramps/stairs), balancing, stooping, kneeling, crouching, or crawling; should

avoid climbing ropes, ladders, and scaffolds; requires work in a low stress job,

defined as having no more than occasional changes in the work setting; and

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requires use of a cane for ambulation, but the contra lateral upper extremity

can be used to lift and carry up to the exertional limits (Tr. 16-17). 

Citing the VE’s testimony, the ALJ found that while Plaintiff was unable to perform any past

relevant work, he could perform the work of a bench assembler, circuit board inspector, and

surveillance system monitor (Tr. 27-28). 

The ALJ found Plaintiff’s claims “less than fully credible” (Tr. 26). He noted that

Plaintiff’s testimony that he had shopped only once in the past three years contradicted

evidence that he regularly shopped at Kroger (Tr. 26). The ALJ noted further that Plaintiff

had been non-compliant with prescribed medication and had failed “to follow up with

referrals to psychological, neurological, and orthopedic specialists” (Tr. 27). He cited Dr.

Nims’ finding that Plaintiff did not seem interested in resolving his alleged physical and

emotional problems (Tr. 27). The ALJ observed that Plaintiff’s testimony of medication side

effects contradicted his November, 2011 denial of side effects (Tr. 27). 

 STANDARD OF REVIEW

The district court reviews the final decision of the Commissioner to determine

whether it is supported by substantial evidence. 42 U.S.C. §405(g); Sherrill v. Secretary of

Health and Human Services, 757 F.2d 803, 804 (6 Cir. 1985). Substantial evidence is more th

than a scintilla but less that a preponderance. It is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.

389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB,

305 U.S. 197, 229, S. Ct. 206, 83 L.Ed.126 (1938)). The standard of review is deferential and 

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“presupposes that there is a ‘zone of choice’ within which decision makers can go either way,

without interference from the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6 Cir. th

1986)(en banc). In determining whether the evidence is substantial, the court must “take into

account whatever in the record fairly detracts fromits weight.” Wages v. Secretary of Health

& Human Services, 755 F.2d 495, 497 (6 Cir. 1985). The court must examine the th

administrative record as a whole, and may look to any evidence in the record, regardless of

whether it has been cited by the ALJ. Walker v. Secretary of Health and Human Services,

884 F.2d 241, 245 (6 Cir. 1989). th

FRAMEWORK FOR DISABILITY DETERMINATIONS

Disability is defined in the Social Security Act as the “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). In

evaluating whether a claimant is disabled, the Commissioner is to consider, in sequence,

whether the claimant: 1) worked during the alleged period of disability; 2) has a severe

impairment; 3) has an impairment that meets or equals the requirements of an impairment

listed in the regulations; 4) can return to past relevant work; and 5) if not, whether he or she

can perform other work in the national economy. 20 C.F.R. §416.920(a). The Plaintiff has

the burden of proof at steps one through four, but the burden shifts to the Commissioner at

step five to demonstrate that, “notwithstanding the claimant's impairment, he retains the

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residual functional capacity to perform specific jobs existing in the national economy.” 

Richardson v. Secretary of Health & Human Services, 735 F.2d 962, 964 (6th Cir.1984).

ANALYSIS 

 A. Weight Accorded Dr. Haddad’s Treating Opinions

In his first argument, Plaintiff disputes the ALJ’s rejection of Dr. Haddad’s July,

2011 and April 2013 medical source statements. Plaintiff’s Brief, 16-18, Docket #13 (citing

SSR 96–2p, 1996 WL 374188, *5 (July 2, 1996)). He contends that the ALJ did not provide

adequate reasons for discounting Dr. Haddad’s treating opinion. Id. 

Plaintiff is correct that the failure to articulate “good reasons” for rejecting a treating

physician's opinion constitutes reversible error. Gayheart v. CSS, 710 F.3d 365, 376 (6th Cir.

2013); Wilson, 378 F.3d at 544–546 (6th Cir. 2004)(citing § 404.1527(c)(2)). “[T]he

Commissioner imposes on its decision-makers a clear duty to ‘always give good reasons in

our notice of determination or decision for the weight we give [a] treating source's opinion.’”

Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011). In explaining the reasons for giving less

than controlling weight to a treating physician opinion, the ALJ must consider (1) ‘the length

of the... relationship” (2) “frequency of examination,” (3) “nature and extent of the

treatment,” (4) the “supportability of the opinion,” (5) “consistency...with the record as a

whole,” and, (6) “the specialization of the treating source.” Wilson, at 544. “These reasons

must be ‘supported by the evidence in the case record, and must be sufficiently specific to

make clear to any subsequent reviewers the weight the adjudicator gave to the treating

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source's medical opinion and the reasons for that weight.’” Gayheart, at 376 (citing SSR

96–2p at *5). 

Nonetheless here, the ALJ’s reasons for rejecting Dr. Haddad’s opinions are well

supported and explained. The ALJ noted that when Dr. Haddad opined in July, 2011 that

Plaintiff’s condition was “deteriorating,” “no apparent treating relationship [had] been

established” with Plaintiff (Tr. 492). My own review of the records indicates that Dr.

Haddad was not yet a “treating source” at the time she issued the July, 2011 assessment. Her

opinion would thus be “entitled to no special degree of deference.” Barker v. Shalala, 40

F.3d 789, 794 (6th Cir.1994) (citing Atterberry v. Secretary of Health & Human Servs., 871

F.2d 567, 572 (6th Cir.1989)). The ALJ also noted that the July, 2011 opinion was

undermined by Plaintiff’s ability to lift an 800 to 900-pound pizza oven the previous March

and the ability to perform yard work within the month prior to the assessment (Tr. 20, 48,

52). 

Likewise, theALJ’s analysis of Dr. Haddad’s April, 2013 assessment does not provide

grounds for remand. The ALJ reasonably concluded Plaintiff’s lifting limitations of “less

than 10 pounds on an occasional basis” was unsupported by either the treating or consultative

records (Tr. 23-24). He observed further that while Dr. Haddad found that Plaintiff was

unable to walk even two hours in an eight-hour period, she did not set forth limitations for

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sitting (Tr. 23). The ALJ also noted that Dr. Haddad’s opinion that Plaintiff was “never” 3

able to climb, balance, kneel, crouch, or crawl was contradicted byDr. Nims’ February, 2012

observation that Plaintiff was able to squat and “stand on one leg at a time without difficulty”

(Tr. 24, 342). Plaintiff’s related argument that the ALJ was nonetheless required to include

Dr. Haddad’s discounted findings in the RFC is without merit. See Stanley v. Secretary of

Health and Human Services, 39 F.3d 115, 118–119 (6th Cir.1994)(ALJ not obliged to credit

rejected claims in question to VE or by extension, in the ultimate RFC); See also Warner v.

Commissioner of Social Sec., 375 F.3d 387, 391-392 (6th Cir.2004)(In the presence of

contradicting substantial evidence the ALJ may reject all or a portion of the treating source's

findings provided that he supplies “good reasons” for doing so). Because the rejection of the

April, 2013 opinion was well explained and supported by substantial evidence, the treating

physician analysis should remain undisturbed. 

B. The Credibility Determination

Plaintiff also disputes the finding that his allegations of limitation were not credible. 

Plaintiff’s Brief at 18. He contends that the ALJ provided inadequate reasons for discounting

his claims. On a related note, he argues that the ALJ failed to consider whether he could

perform competitive employment on a full-time basis as required by SSR 96-8p. Id. at 20. 

The credibility determination, guided by SSR 96-7p, describes a two-step process for

While the ALJ provided ample grounds for rejecting the April, 2013 assessment 3

in its totality, the RFC for one hour standing in an eight-hour day and sitting for seven

does not contradict Dr. Haddad’s findings (Tr. 16). 

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evaluating symptoms. “First, the adjudicator must consider whether there is an underlying

medically determinable physical or mental impairment. . .that can be shown by medically

acceptable clinical and laboratory diagnostic techniques.” 1996 WL 374186 at *2 (July 2,

1996). The second prong of SSR 96-7p directs that whenever a claimant’s allegations

regarding “the intensity, persistence, or functionally limiting effects of pain or other

symptoms are not substantiated by objective medical evidence,” the testimony must be

evaluated “based on a consideration of the entire case record.”Id. 

4

Plaintiff disputes the ALJ’s reasons for rejecting his allegations. Specifically, he

faults the ALJ for finding that the failure to seek regular treatment between September, 2010

and March, 2011 undermined the disability claim (Tr. 19). He argues, in effect, that his

financial limitations prevented him from seeking treatment during that period. However, as

noted by the ALJ, the record shows that Plaintiff did not hesitate to seek both emergency and

non-urgent treatment on a frequent basis both before September, 2010 and after February,

In addition to an analysis of the medical evidence, C.F.R. 404.1529(c)(3) lists the 4

factors to be considered in making a credibility determination: 

 (i) Your daily activities; (ii) The location, duration, frequency, and intensity

of your pain or other symptoms; (iii) Precipitating and aggravating factors; (iv)

The type, dosage, effectiveness, and side effects of any medication you take

or have taken to alleviate your pain or other symptoms; (v) treatment, other

than medication, you receive or have received for relief of your pain or other

symptoms; (vi) Any measures you use or have used to relieve your pain or

other symptoms ... and (vii) Other factors concerning your functional

limitations and restrictions due to pain or other symptoms.” 

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2011 (Tr. 229-230, 235-236, 240, 245, 257-258, 264-270, 278, 282, 292, 299, 308-313, 317,

337, 424). Moreover, the March, 2011 emergency records showing that he experienced an

injury to his hand while moving an 800 to 900-pound pizza oven, standing alone, undermines

his claim. His ability to lift a pizza oven (albeit with the help of his cousin and the use of a

dolly) stands grossly at odds with his claim that he was incapable of performing even

sedentary work. As such, the ALJ’s inference that Plaintiff did not experience significant

health problems between September, 2010 and March, 2011 is not unreasonable. Likewise,

the ALJ did not err in finding that Plaintiff’s ability to haul 25 to 30-pound drywall pieces

to a dumpster in late 2010 or early 2011 undermined the his professed disability (Tr. 27, 51). 

Plaintiff also takes issue with the observation that he testified that he shopped at WalMart but earlier reported that he shopped at Kroger (Tr. 26). However, the ALJ raised WalMart/Kroger inconsistency by way of noting that while Plaintiff testified that his shopping

in the past three years was limited to one brief trip to Wal-Mart, he reported earlier that he

shopped (presumably on a repeated basis) at Kroger (Tr. 202). The ALJ also noted that

Plaintiff told emergency room personnel in October, 2011 that he sustained injuries in a

shopping cart accident while shopping (Tr. 249). The ALJ did not err in noting that the

testimony of one shopping trip in three years (to pick a Christmas present for a relative)

contradicted the earlier report and medical records showing that he shopped for groceries on

a repeated basis. The ALJ permissibly found that Plaintiff’s professed limitations as a result

of chronic pain syndrome were similarly undermined by gaps in the treatment history and the

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willingness to perform strenuous work-related activity well after the January, 2010 alleged

onset of disability (Tr. 24). 

Finally, Plaintiff’s argument that no consideration was given to whether he could

perform sedentary work on a sustained basis should be rejected. Plaintiff relies on SSR

96–8p, 1996 WL 374184, *2 (July 2, 1996) which states that RFC refers to “the individual's

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

regular and continuing basis, and . . . must include a discussion of the individual's abilities

on that basis,” stating further that “‘regular and continuing basis’ means 8 hours a day, for

5 days a week, or an equivalent work schedule.” Id. (emphasis in original). However, the

VE testified that the limitations found in the hypothetical question posed by the ALJ

(identical to those in the RFC) would allow for full-time, sedentarywork a bench assembler,

circuit board inspector, and surveillance system monitor (Tr. 68). Because the hypothetical

question to the VE accurately (if not over-generously) accounted for Plaintiff’s limitations,

the VE’s responding testimony constitutes substantial evidence in support of the RFC and

the ultimate conclusion that Plaintiff was capable of a significant range of full-time work. 

Varley v. Sec'y of Health and Human Servs., 820 F.2d 777, 779 (6th Cir.1987). 

Further, the ALJ’s rationale for choosing the limitations found in the hypothetical

question and RFC are well articulated. He supported his finding that Plaintiff was capable

of walking for one hour a day and sitting for seven on a full-time basis by citing October,

2011, June, 2012, and October, 2012 imaging studies showed at most minor abnormalities

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(Tr. 25). The ALJ permissibly noted that the unremarkable studies were also supported by

Dr. Nims’ observation that Plaintiff’s “physical problems [were] not over impressive” and

did not prevent “moderately strenuous activities involving lifting up to 15 to 20 pounds at a

time for 2 to 3 hours per day” (Tr. 344). Again, while Dr. Nims’ findings and the objective

medical evidence support a less restrictive RFC, the ALJ credited Plaintiff’s allegations to

a large extent by crafting an RFC for a limited range of sedentary work with significant

postural limitations (Tr. 16-17). 

Because the ALJ’s credibility determination and rationale for the RFC are well

supported and explained, the deference generallyaccorded anALJ’s credibilitydetermination

is appropriate here. “[A]n 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.’” Cruse v. Commissioner of Social Sec., 502 F.3d 532, 542 (6th Cir.2007)

(citing Walters v. Commissioner of Social Sec., 127 F.3d 525, 531 (6th Cir.1997)); See also

Casey v. Secretary of Health and Human Services, 987 F.2d 1230, 1234 (6th Cir.1993);

Anderson v. Bowen, 868 F.2d 921, 927 (7th Cir.1989) (citing Imani v. Heckler, 797 F.2d 508,

512 (7th Cir.1986))(An ALJ's “credibility determination must stand unless ‘patently wrong

in view of the cold record’”).

My recommendation to uphold the ALJ’s findings should not be read to trivialize

Plaintiff’s physical problems. Nonetheless, the determination that he was not disabled is

well within the “zone of choice” accorded to the fact-finder at the administrative hearing

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level and should not be disturbed by this Court. Mullen v. Bowen, supra. 

CONCLUSION

For the reasons stated above, I recommend that Defendant’s motion for summary

judgment [Doc. #14] be GRANTED and Plaintiff’s motion [Doc. #13] DENIED. 

Any objections to this Report and Recommendation must be filed within 14 days of

service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D. Mich. LR

72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of

appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v.

Secretary of HHS, 932 F.2d 505 (6 Cir. 1991); United States v. Walters, 638 F.2d 947 (6 th th

Cir. 1981). Filing of objections which raise some issues but fail to raise others with

specificity will not preserve all the objections a party might have to this Report and

Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6 Cir. 1991); Smith v. th

Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6 Cir. 1987). Pursuant to E.D. th

Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.

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Within 14 days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be not more than 20 pages in length

unless by motion and order such page limit is extended by the court. The response shall

address specifically, and in the same order raised, each issue contained within the objections.

s/ R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Dated: January 19, 2015

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was sent to parties of record on

January 19, 2016, electronically and/or by U.S. mail.

s/Carolyn M. Ciesla 

Case Manager to the

Honorable R. Steven Whalen

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