UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

BRIAN G. ADAMS,

CASE NO. 14-14724

Plaintiff,

DISTRICT JUDGE MATTHEW F. LEITMAN

v. MAGISTRATE JUDGE PATRICIA T. MORRIS

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

___________________________/

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION ON CROSS 

MOTIONS FOR SUMMARY JUDGMENT (Docs. 13, 16)

I. RECOMMENDATION

In light of the entire record in this case, I suggest that substantial evidence 

supports the Commissioner’s determination that Adams is not disabled. Accordingly, IT 

IS RECOMMENDED that Adams’ Motion for Summary Judgment (Doc. 13) be 

DENIED, that the Commissioner’s Motion for Summary Judgment (Doc. 16) be 

GRANTED, and that this case be AFFIRMED.

II. REPORT

A. Introduction and Procedural History

Pursuant to 28 U.S.C. § 636(b)(1)(B), E.D. Mich. LR 72.1(b)(3), and by Notice of 

Reference, this case was referred to the undersigned magistrate judge for the purpose of 

reviewing a final decision by the Commissioner of Social Security (“Commissioner”)

denying Plaintiff’s claims for the Disability Insurance Benefits (“DIB”) program of Title 

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II, 42 U.S.C. § 401 et seq. (Doc. 6; Tr. 1-3). The matter is currently before the Court on 

cross-motions for summary judgment. (Docs. 13, 16).

Plaintiff Brian Adams was fifty-two years old when he applied for benefits on 

May 12, 2012. (Tr. 126). This application was denied on July 13, 2012. (Tr. 56). Adams

requested a hearing before an Administrative Law Judge (“ALJ”), which took place 

before ALJ Neil Sullivan on August 8, 2013. (Tr. 24-55). Adams, represented by attorney 

J. Gregory Frye, testified, as did vocational expert (“VE”) Heather Benton. (Id.). On 

August 19, 2013, the ALJ issued a written decision in which he found Adams not 

disabled. (Tr. 10-19). On October 21, 2014, the Appeals Council denied review. (Tr. 1-3). 

Adams filed for judicial review of that final decision on December 15, 2014. (Doc. 1). 

B. Standard of Review

The district court has jurisdiction to review the Commissioner’s final 

administrative decision pursuant to 42 U.S.C. § 405(g). The district court’s review is 

restricted solely to determining whether the “Commissioner has failed to apply the 

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

the record.” Sullivan v. Comm’r of Soc. Sec., 595 F. App’x 502, 506 (6th Cir. 2014) 

(internal citations omitted). 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 v. Comm’r of Soc. Sec., 486 F.3d 234, 241 

(6th Cir. 2007) (internal quotations omitted). 

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The Court must examine the administrative record as a whole, and may consider 

any evidence in the record, regardless of whether it has been cited by the ALJ. See 

Walker v. Secretary of Health and Human Services, 884 F.2d 241, 245 (6th Cir. 1989). 

The Court will not “try the case de novo, nor resolve conflicts in the evidence, nor decide 

questions of credibility.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 

(6th Cir. 1994). If the Commissioner’s decision is supported by substantial evidence, “it 

must be affirmed even if the reviewing court would decide the matter differently and 

even if substantial evidence also supports the opposite conclusion.” Id. at 286 (internal 

citations omitted).

C. Framework for Disability Determinations

Under the Act, “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 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 

[twelve] months.

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); 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 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 . . . 

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physical or mental ability to do basic work activities,” benefits 

are denied without further analysis.

Step Three: If the claimant 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.

20 C.F.R. §§ 404.1520, 416.920. See also Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 

534 (6th Cir. 2001). “Through step four, the claimant bears the burden of proving the 

existence and severity of limitations caused by [his or] her impairments and the fact that 

she is precluded from performing [his or] her past relevant work.” Jones v. Comm’r of 

Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). The burden transfers to the Commissioner if 

the analysis reaches the fifth step without a finding that the claimant is not disabled. 

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 [the claimant] could perform given [his or] her RFC [residual 

functional capacity] and considering relevant vocational factors.” Rogers, 486 F.3d at 241 

(citing 20 C.F.R. §§ 416.920(a)(4)(v), (g)).

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D. ALJ Findings

Following the five-step sequential analysis, the ALJ found Adams not disabled 

under the Act. (Tr. 19). The ALJ found at Step One that Adams had not engaged in 

substantial gainful following the alleged onset date, December 16, 2009. (Tr. 12). At Step 

Two, the ALJ concluded that Adams had the following severe impairments: “disorders of 

the back, neck, shoulder, and trapezius status-post cervical fusion at C4-6, hypertension, 

myofascial pain and other reported chronic pain.” (Id.). At Step Three, the ALJ found that 

Adams’ combination of impairments did not meet or equal one of the listings in the 

regulations. (Tr. 13-14). The ALJ then found that Adams had the residual functional 

capacity (“RFC”) to perform light work, except that Adams “should never climb ladders, 

ropes or scaffolds, and can only occasionally climb ramps or stairs. In addition, the 

claimant can only occasionally stoop, kneel, crouch, crawl or balance. Finally, the 

claimant should avoid concentrated exposure to the use of hazardous machinery, 

operational control of moving machinery, and unprotected heights.” (Tr. 14-17). At Step 

Four, the ALJ found that Adams was able unable to perform any past relevant work. (Tr. 

18). At Step Five, the ALJ found that Adams retained the ability to perform a significant 

number of jobs which exist in the national economy. (Tr. 18-19). As a result, the ALJ 

found Adams not disabled under the Act. (Tr. 19). 

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E. Administrative Record

1. Medical Evidence

In January 2009 Adams sought treatment for neck and shoulder pain. (Tr. 541). In 

February 2009, Adams complained of worsening anxiety. (Tr. 539). In July 2009 he 

complained of back pain without radiation. (Tr. 537). 

On July 7, 2009, Adams treated with Dr. Erin Murfey, who found evidence of 

cervicalgia and cervical radiculopathy, but with full strength in the upper extremities. (Tr. 

323). On that same date, a scan of Adams’ spine was interpreted by Dr. L. Anderson to 

show degenerative changes at C5-C6 with encroachment upon the neural foramina, along 

with slight narrowing at C5-C7. (Tr. 427). 

On July 17, 2009, Dr. John Hopkins interpreted an MRI scan of Adams’ spine, 

finding moderate-severe right foraminal stenosis with impingement at C3-C4, moderatesevere left foraminal stenosis at C4-C5 with impingement on the left C5 nerve root, along 

with some stenosis at C5-C6 and C6-C7, and other degenerative changes. (Tr. 232-33). 

On July 21, 2009, Dr. Umesh Verma found some evidence of median neuropathy 

in both wrists. (Tr. 320). 

On July 31, 2009, Adams rated his functional level at eight out of ten, but also 

rated his pain at eight out of ten; Adams noted that he enjoyed hunting and fishing. (Tr. 

250). In August 2009, Adams asserted following rehabilitation that he felt zero pain with 

movement, had no complaints of pain or numbness generally, and had good strength 

throughout. (Tr. 237, 243). 

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In December 2009 Adams experienced some cardiovascular distress, including 

abnormal EKG findings. (Tr. 274-86).

In July, September, and October of 2009, Adams treated with Dr. Nilesh Kotecha, 

who recommended therapy for carpal tunnel syndrome, administered steroid injections to 

relieve neck pain, and noted abnormal discographies at all levels tested; surgery was 

recommended. (Tr. 309). 

On December 16, 2009, Adams underwent a spinal fusion surgery; the surgery 

was performed without complications, and his preoperative and postoperative diagnoses 

were both “[m]ultilevel cervical spondylosis without myelopathy.” (Tr. 419). 

In a January 2010 follow-up appointment, Dr. Kotecha noted that Adams was 

“doing beautifully,” and that his x-rays “look[ed] excellent. (Id.). Also in January 2010, 

Dr. P.C. Patel found satisfactory appearance of Adams’ cervical fusion at C4-C6, with 

moderate degenerative disc disease at C6-C7. (Tr. 408). 

In March, August, and September 2010, Adams again treated with Dr. Kotecha, 

who noted that Adams’ x-rays looked “very good” following his spinal surgery, that he 

had “good strength throughout both is upper extremities,” but with some mild disc 

degeneration at C6-C7. (Tr. 305). Adams complained of some bilateral upper extremity 

discomfort, particularly in the left extremity. (Id.). 

Also in March 2010, Dr. Mohamed Asad interpreted a scan of Adams’ spine, 

finding stable anterior fusion at C4-C6, stable degenerative disease at C6-C7, and “some 

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increased narrowing of the anterior aspect of the C3-C4 disc space on the flexion view” 

without “pathologic subluxation or instability” on flexion or extension. (Tr. 398-99). 

Also in August 2010, Dr. P.C. Patel reviewed a scan of Adams’ spine, which he 

interpreted as a “satisfactory appearance of the cervical fusion at C4-C6, along with 

“[e]arly cervical spondylotic changes at C3-C4 and moderate cervical spondylotic C6-C7 

level.” (Tr. 396). 

Adams complained of shoulder pain and depression on November 26, 2010. (Tr. 

525). D.O. Legere-Struntz recorded that Adams’ pain was not relieved with medication, 

and was consistently getting worse. (Id.). Adams also said that his depression was making 

it difficult to meet his obligations at home and work. (Id.). His cervical spine showed 

spasms, and was tender, but had full range of motion; Adams also had spasms in the 

thoracic spine. (Id.). His grip was “good” bilaterally. (Id.). 

On December 3, 2010, Dr. Diedre Redd noted that Adams’ cervical fusion 

resolved most of his pain, with the exception of “some left upper trapezius discomfort 

extending into the left arm and around the periscapular area.” (Tr. 331). Adams stated 

that he experienced pain at a rate of eight out of ten, and that he experienced occasional 

numbness. (Id.). Despite this, Adams was able to rest easily through the night, and 

occasionally took Tylenol for pain relief, but was “not terribly interested in taking too 

many medications.” (Id.). Dr. Redd thus characterized Adams’ pain as “relatively well 

controlled,” and dependent upon his activity level, noting his penchant for hunting and 

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fishing; she recommended “just doing a few sessions of outpatient physical therapy to 

primarily address stretching and a home exercise program.” (Tr. 332). 

On January 3, 2011, Dr. Diedre Redd noted that physical therapy resolved Adams’ 

pain, but that his symptoms rapidly returned. (Tr. 327). Adams complained of tightness in 

the periscapular area. (Id.). Dr. Redd made note of Adams’ high degree of activity, 

including chopping wood for his stove at home, loading large diameter wood that was 

four feet long into his stove, and that he did not experience notable pain when engaging 

in this exercise. (Id.). Adams did not seem to experience his pain during the treatment 

sessions, and rated his pain at zero out of ten. (Tr. 327-28). Adams showed no cervical or 

periscapular pain, along with full range of motion and strength in his upper limbs. (Id.). 

On January 31, 2011, Dr. Diedre Redd recorded complaints of left upper limb and 

left parascapular pain, which had improved by half over the prior month, such that 

Adams rated his then-current discomfort at zero out of ten, with his worst pain rating at 

three out of ten. (Tr. 325). Adams was well enough to perform a home exercise program 

daily, along with performing “a lot of” wood hauling and chopping. (Id.). Adams 

experienced some soreness in the cervical spine, which his wife treated with massage. 

(Id.). In Adams’ own estimation, he was “doing well.” (Id.). He had normal range of 

motion in his cervical spine, with no paraspinal tenderness, and normal strength and 

reflexes in his upper limbs. (Id.).

On October 20, 2011, D.O. Legere-Struntz recorded complaints of chronic, 

constant pain in the cervical spine, which Adams said ranged from minimal to extreme. 

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(Tr. 513). Adams reported that he suffered severe pain for several days after attempting to 

work. (Id.). The physician encouraged Adams to seek disability. (Id.). 

On November 21, 2011, Adams was admitted to the hospital for abdominal pain; 

Adams also complained of hypertension, back pain, insomnia, abdominal pain, and 

depression. (Tr. 369-71). Adams’ pain resolved on its own; he was diagnosed with 

nonspecific colitis and discharged. (Tr. 376-77, 382). 

On December 5, 2011, Adams complained of neck pain with radiation into the 

face, arm, elbow, wrist, which was aggravated by walking and turning his head. (Tr. 

342). He reported that injections helped temporarily, he experienced side effects that led 

him to cease using Cymbalta, and rarely took Ultram because it was ineffective. (Id.). 

Adams had decreased range of motion in the cervical spine, but with normal gait. (Tr. 

344). 

On January 16, 2012, Adams treated with D.O. Michelle Brewer for moderate pain 

occurring intermittently, and ranging from three out of ten to ten out of ten. (Tr. 338). He 

was prescribed with a TENS pain relief unit. (Tr. 340). 

On February 2, 2012, Adams treated with D.O. Lisa Legere-Struntz, complaining 

of pain in the neck, shoulders, and arms. (Tr. 504). Adams’ anxiety and depression were 

noted to be controlled with treatment. (Id.). He was positive for back pain, bone and joint 

symptoms, and muscle weakness. (Tr. 505). He rated his pain at two out of ten. (Tr. 506). 

On February 28, 2012, Adams told D.O. Brewer of “mild” but constant and 

worsening pain in his neck, head, shoulder, and arms. (Tr. 334). However, Adams also 

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claimed that his pain ranged from two out of ten to ten out of ten. (Id.). Adams was 

prescribed pain relief medication and scheduled for a follow-up. (Tr. 336-37). 

On July 3, 2012, Adams was evaluated by Michigan State Disability 

Determination Services physician Dr. Karen Krieger. (Tr. 443). Dr. Krieger noted 

complaints of back and neck pain, arthritis, hypertension, cardiomyopathy, heat 

intolerance, insomnia, obesity, acid reflux, and depression. (Id.). Adams asserted that he 

could dress and feed himself, stand for twenty minutes at a time, walk ten minutes, sit for 

sixty minutes, lift ten pounds with either arm, and could perform household chores in 

short intervals. (Id.). Adams was properly dressed and groomed, could follow complex 

commands without difficulty, his recent and long-term memory appeared intact, he was 

pleasant and cooperative, and his intellectual function was generally normal. (Tr. 443-

44). Adams had no tenderness in the cervical spine or dorsolumbar spine and showed no 

paravertebral muscle spasms or tenderness. (Tr. 444). His elbows and shoulders were 

nominal. (Tr. 445-46). Adams’ wrists were normal, and his grip strength was about sixty 

pounds bilaterally. (Tr. 446). Dr. Krieger found that Adams could perform all tested 

activities, including pushing, pulling, squatting, hopping on and off the examination 

table, and lift light weights, among others. (Tr. 447). Adams’ gait was normal, he could 

walk on heels and toes, and he was comfortable seated and supine. (Tr. 448). Dr. Krieger 

diagnosed Adams with low back pain, neck pain with bilateral radiculopathy, 

hypertension, history of cardiomyopathy, controlled acid reflux, depression, and 

difficulty with sleep. (Id.). 

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In July 2012, state agency physician Dr. B.D. Choi found, based on a review of 

Adams’ medical transcripts, that he could perform “light work” with certain postural 

limitations, including a limitation to only occasionally climbing ramps, stairs, or ladders, 

and only occasionally balancing, stooping, kneeling, crouching, and crawling. (Tr. 63-

64). 

On January 18, 2013, Adams sought treatment from D.O. Lisa Legere-Struntz for 

ongoing beck pain, depression, anxiety, and hypertension. (Tr. 493). Adams was found to 

be anxious, but did not suffer from paranoia, had normal insight, normal judgment, and a 

normal attention span. (Tr. 494). 

On February 6, 2013, Adams treated with Dr. Heather Lara, complaining of 

burning, sharp neck pain with radiation into the shoulder and arms. (Tr. 449). Dr. Lara 

recommended Adams undergo an MRI scan to determine the nature of his pain. (Tr. 451). 

On February 19, 2013, Adams treated with Dr. Frederick Vincent, Sr. (Tr. 452). 

Adams reported that his pain attenuated following his 2009 neck surgery, but that he 

began to experience bilateral trapezius pain and spasms about five months later, 

accompanied with a burning sensation in the left arm. (Id.). Adams asserted that 

nocturnal use of wrist splints abated his paresthesia by morning. (Id.). Adams’ muscle 

bulk and strength were normal in his arms and hands, and his reflexes were symmetrical. 

(Id.). An electrodiagnostic examination revealed no evidence of cervical radiculopathy, 

brachial plexopathy, proximal mononeuropathy, polyneuropathy, or myopathy in the 

upper limbs. (Tr. 453). Dr. Vincent concluded that it was “possible [Adams] has an 

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atypical C6 sensory radiculopathy, but I don’t think that he has a focal mononeuropathy 

or plexopathy as a cause of this symptom,” that Adams’ hand paresthesia was unchanged 

by his surgery, that he suffered from minimal carpal tunnel, and that his “proximal left 

upper limb sensory problems he is experience [has nothing] to do with the distal median 

neuropathy on the left.” (Id.). Dr. Vincent found that Adams did not require any 

immediate treatment for his median neuropathies, and instead would wait for the results 

of an MRI that would be performed the same day. (Tr. 453). 

Also on February 19, 2013, Adams treated with Dr. Hedstrom-Lara. (Tr. 457). 

That physician found that Adams suffered from trapezius spasms, likely myofascial in 

origin, minimal carpal tunnel, and episodic bilateral paresthesia of the hand. (Tr. 458).

That physician also recorded that Adams’ “[e]pisodic left upper limb burning sensation” 

was what “really bother[ed] him the most especially as the day progresses.” (Id.). 

Depending on the results of an MRI, the physician noted that referral to a pain specialist 

may be appropriate. (Tr. 458-59).

On February 26, 2013, Adams again treated with Dr. Hedstrom-Lara, who 

reviewed an MRI of Adams’ spine, finding that he had “left sided neural foraminal 

stenosis at C6/7 and he may benefit from a[ pain relieving] injection on the left at that 

level.” (Tr. 460-62). 

On March 4, 2013, Adams treated with D.O. Michael Wheeler, who noted burning 

pain radiating into the left arm, along with some paresthesia, but without weakness. (Tr. 

463). Adams stated that his pain ranged from mild to severe, and acknowledged some 

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relief through medication, but asserted that physical therapy and a pain relieving 

injections did not help. (Tr. 463). D.O. Wheeler found decreased range of motion in the 

neck, normal gait, 5/5 strength in all major muscle groups, normal neurological response, 

and no abnormalities in terms of mental status. (Tr. 465). D.O. Wheeler discussed pain 

relief injections, and scheduled two such procedures. (Id.). On March 22, 2013, D.O. 

Wheeler performed an injection. (Tr. 467). On April 5, 2013, Adams returned for another 

injection, but asserted that he experienced no relief from the first injection. (Tr. 470). 

Adams reported his pain at seven out of ten prior to the second injection. (Tr. 471). 

Immediately following the procedure, Adams asserted that his pain was reduced to two 

out of ten. (Id.). 

On April 18, 2013, Adams returned to D.O. Wheeler reporting “slight relief” from 

his second injection, such that his pain was “tolerable at rest,” but that he experienced 

limited activity tolerance. (Tr. 473). Adams was negative for depression, anxiety, and 

sleep disturbance; his gait, muscle strength, and psychiatric status were similarly normal.

(Tr. 473-74). D.O. Wheeler concluded that Adams was “doing better . . . but not 

significantly or such that his function has really improved. He is still hoping to avoid 

another surgery but may consider it if non-surgical treatment fails.” (Tr. 475). Adams was 

prescribed a larger dose of Neurontin to treat his pain. (Id.). 

On May 10, 2013, Adams underwent a third pain relieving injection at the hands 

of D.O. Wheeler, who recorded that Adams’ pain was reduced from three or four out of 

ten before the procedure to one out of ten afterward. (Tr. 477). On May 23, 2013, Adams 

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reported no “additional relief beyond the first two epidurals,” such that his “pain is better 

at rest [but] his functional tolerance has not improved significantly.” (Tr. 479). D.O. 

Wheeler noted that Adams was considering filing for disability at that time. (Id.). Adams 

was negative for depression. (Tr. 480). 

On May 29, 2013, Dr. Hedstrom-Lara recorded that Adams obtained one week of 

relief from his injections, and denied any change to his arm or neck pain since his last 

visit. (Tr. 482). She also recorded that “[t]he main part that bothers him is left radicular 

arm pain that radiates into his left third finger;” Adams denied any weakness. (Id.). His 

gait was normal, muscle and strength were grossly normal, and Adams retained a full, 

painless range of motion in all joints. (Tr. 484). The physician discussed the possibility of 

an exploratory surgery to determine the cause of his pain, but Adams declined. (Id.). 

In April and July 2013, Adams sought treatment of a rash. (Tr. 486-89). The only 

mention of his muscular condition was a note that he experienced “[e]xtremity weakness 

and numbness in extremities.” (Tr. 491). In July 2013 D.O. Legere-Struntz noted that 

Adams “[w]as recently camping and tubing down the AuSable.” (Tr. 486). 

2. Application Reports and Administrative Hearing

a. Adams’ Function Report

On June 13, 2012, Adams completed a function report in which he asserted that he 

was unable to work because of difficulty standing or sitting for more than one hour, 

walking, raising his arms, and turning his head. (Tr. 201). He reported that his daily 

activities included walking around the house when he felt able to do so, sitting in his easy 

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chair, taking pills, talking to and visiting friends, and watching television. (Tr. 202). He 

reported sleeping difficulties, along with difficulty performing all personal care activities, 

particularly those which require raising his arms, which he noted cause pain that can last 

minutes or hours. (Id.). Adams wrote that he did not require reminders to take medicine 

or go places, and did not prepare his own meals. (Tr. 203). He was able to mow his lawn, 

but doing so took “all day” because his neck hurts and he must rest; he also noted that he 

had to “putter” with household repairs. (Id.). Adams wrote that he left housework to his 

wife “when [his] neck gets to hurting.” (Tr. 204). He got out of the house as often as 

possible, was able to drive, and could go out alone. (Id.). His wife performed all shopping 

and paid all the bills; Adams said he was unable to pay bills, handle a savings account, or 

use a checkbook, but also reported that his ability to perform these activities was not 

impacted by his illnesses. (Tr. 204-05). Adams reported that his hobbies included 

hunting, fishing, wood-working, and camping, but stated that he “rarely” went fishing, 

“almost never” hunted, no longer performed woodworking, but still camped “once or 

twice a summer,” but that his wife did most of the work. (Tr. 205). Adams elsewhere 

specified that he went fishing two or three times per season, and could not walk for 

hunting purposes. (Tr. 202). His social activities included speaking to his mother and 

friends on the phone daily; he did not visit friends or have friends visit him. (Tr. 205-

06).1 Regarding his lifting ability, Adams asserted that he could lift five pounds without 

 1 The Court notes that Adams directly contradicts himself in his function report, writing 

that his daily activities include “[v]isit[ing] friends” and later writing that since his 

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pain, but that any repetitive reaching above his shoulders caused neck and arm pain. (Tr. 

206). He could walk fifty yards without rest, and wrote that he would have to wait for an 

hour before his “neck and arm pain . . . calm down.” (Id.). He could pay attention for 

thirty minutes, followed instructions without issue, but did not finish what he started. 

(Id.). He reported responding to stress “not very well.” (Tr. 207). In a comment section, 

Adams wrote that he “was stick of taking all these pills and quit taking them,” but that 

after two days he was “so crippled up that he had to resume taking his medications.” (Tr. 

208). Finally, he wrote that he “has been messed up since Dr. Katecha [sic] did his neck 

surgery!” (Id.). 

b. Adams’ Testimony at the Administrative Hearing

At the August 8, 2013, hearing before the ALJ, Adams testified that he suffered 

from “bad nerves” in his neck, a “bad lower back,” heart problems, dizziness, shooting 

pain into his shoulders and hands, headaches, and numbness. (Tr. 33-36). He testified that 

his pain was variable, such that he could be “perfectly good one hour, and the next hour I 

feel like I could lay down and die somewhere;” Adams further asserted that he 

experiences this extreme pain four or five times a day. (Tr. 36). He noted that his neck 

surgery and epidural injections provided only temporary relief. (Tr. 37). Adams 

acknowledged that he could lift objects above head level, but had to do so slowly, and 

could not perform a job requiring such motions repetitively. (Id.). Adams said he always 

 

illnesses he “[d]on’t go to friends [sic] homes anymore. Don’t have friends over to my 

house.” (Tr. 202, 206). The ALJ did not make note of this discrepancy. Nevertheless, the 

Court notes this contradiction as additional support for the ALJ’s credibility finding.

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experiences back pain, and that it aggravates with walking, bending, and sitting for 

extended periods. (Tr. 37-38). Adams also spoke of problems with his heart, resulting in 

shortness of breath, and experiencing sweatiness. (Tr. 39). In terms of depression, Adams 

noted that feels down about losing the ability to participate in his hobbies, but said that he 

was “all right with other people” despite his depression. (Tr. 40). Adams also asserted 

that he lacks motivation, and that his medications leave him feeling tired. (Id.). Adams 

said he could sit and stand for ten to fifteen minutes before experiencing significant neck 

pain and back pain. (Tr. 40-41). He could walk 100 yards without a break, could carry a 

trash bag that distance to the road, and could carry a gallon of milk. (Tr. 42-43). Adams 

also said he could take a flight of steps up and down, but could not do so multiple times 

daily. (Tr. 43). Bending hurt his back, and bending or squatting caused dizziness. (Id.). 

He could “absolutely not” vacuum the house because of arm pain, did not do the dishes 

for fear of back pain, and could not carry laundry baskets comfortably. (Tr. 44). Adams 

said he did not drive unless it was necessary because of neck pain. (Id.). Adams also said 

he shopped for groceries with his wife weekly, but sometimes had to sit down while 

shopping. (Id.). He could hold his arms up in front of himself for about ten minutes. (Tr. 

46). Adams could no longer fish or hunt because he could not carry a gun or cast a rod. 

(Id.). Adams said he mowed the grass, but did so ten minutes at a time, and testified that 

doing so took him two days. (Tr. 47). Finally, Adams acknowledged that he was 

terminated from his last job during a recession, and was unable to secure work thereafter. 

(Tr. 47-48). 

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c. The VE’s Testimony at the Administrative Hearing

The ALJ first asked the VE to characterize Adams’ past relevant work. (Tr. 52). 

The VE found that Adams worked as a machine assembler and a construction worker. 

(Id.). The ALJ then asked the VE a series of hypothetical questions to determine whether 

Adams is capable of completing competitive, remunerative work. (Tr. 50). First, he asked 

the VE to assume a person of identical age, education, and vocational history to Adams, 

who could perform light work, but who could “never climb ladders, ropes, or scaffolds, 

but could occasionally climb ramps or stairs, and could occasionally stoop, kneel, crouch, 

crawl, and balance. Additionally, the individual should avoid concentrated exposure to 

the use of hazardous machinery, operational control of moving machinery, and

unprotected heights.” (Tr. 52-53). The VE testified that such a person could not perform 

Adams’ past relevant work. (Tr. 53). However, the VE also found that such a person 

could work as a hand packager (9,000 jobs in Michigan), material handling (1,200 jobs), 

or production worker (12,000 jobs). (Id.). 

The ALJ then added a limitation that the hypothetical worker would be off task up 

to twenty percent of the day; the VE testified that such a limitation would preclude 

competitive employment. (Tr. 54). Similarly, the VE found that a limitation to three 

absences per month would be work-preclusive. (Id.). Adams’ attorney asked whether a 

limitation to extreme temperatures, particularly those over eighty degrees Fahrenheit, 

would preclude competitive work; the VE found that such a limitation would preclude 

about fifty percent of the positions listed. (Id.). 

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 F. Governing Law

The ALJ must “consider all evidence” in the record when making a disability 

decision. 42 U.S.C. § 423(d)(5)(B). The regulations carve the evidence into various 

categories, “acceptable medical sources” and “other sources.” 20 C.F.R. § 404.1513. 

“Acceptable medical sources” include, among others, licensed physicians and licensed or 

certified psychologists. Id. § 404.1513(a). “Other sources” include medical sources who 

are not “acceptable” and almost any other individual able to provide relevant evidence. 

Id. § 404.1513(d). Only “acceptable medical sources” can establish the existence of an 

impairment. SSR 06-03p, 2006 WL 2329939, at *2. Both “acceptable” and nonacceptable sources provide evidence to the Commissioner, often in the form of opinions 

“about the nature and severity of an individual’s impairment(s), including symptoms, 

diagnosis and prognosis, what the individual can still do despite the impairment(s), and 

physical and mental restrictions.” Id. at *2. When “acceptable medical sources” issue 

such opinions, the regulations deem the statements to be “medical opinions” subject to a 

multi-factor test that weighs their value. 20 C.F.R. § 404.1527. Excluded from the 

definition of “medical opinions” are various decisions reserved to the Commissioner, 

such as whether the claimant meets the statutory definition of disability and how to 

measure his or her residual functional capacity. Id. at 404.1527(d). 

The ALJ must use a six-factor balancing test to determine the probative value of 

medical opinions from acceptable sources. 20 C.F.R. § 404.1527(c). The test looks at 

whether the source examined the claimant, “the length of the treatment relationship and 

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the frequency of examination, the nature and extent of the treatment relationship, 

supportability of the opinion, consistency of the opinion with the record as a whole, and 

specialization of the treating source.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 

(6th Cir. 2004). See also 20 C.F.R. § 404.1527(c). ALJs must also apply those factors to 

“other source” opinions. See Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 540-42 (6th 

Cir. 2007); SSR 06-3p, 2006 WL 2329939, at *2. 

Certain opinions of a treating physician, in contrast, receive controlling weight if 

they are “well-supported by medically acceptable clinical and laboratory diagnostic 

techniques” and are “not inconsistent with the other substantial evidence in [the] case 

record.” 20 C.F.R. § 404.1527(d)(2). See also Wilson, 378 F.3d at 544. The only opinions 

entitled to dispositive effect deal with the nature and severity of the claimant’s 

impairments. 20 C.F.R. § 404.1527(d); SSR 96-2p, 1996 WL 374188, at *1-2. Therefore, 

the ALJ does not owe a treating opinion deference on matters reserved to the 

Commissioner. 20 C.F.R. § 404.1527(d); SSR 96-2p, 1996 WL 374188, at *1-2. The ALJ 

“will not give any special significance to the source of an opinion” regarding whether a 

person is disabled or unable to work, whether an impairment meets or equals a Listing, 

the individual’s RFC, and the application of vocational factors. 20 C.F.R. § 

404.1527(d)(3). 

The regulations mandate that the ALJ provide “good reasons” for the weight 

assigned to the treating source’s opinion in the written determination. 20 C.F.R. § 

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404.1527(c)(2). See also Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 875 (6th Cir. 

2007). Therefore, a decision denying benefits

must contain specific reasons for the weight given to the treating 

source’s medical opinion, 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 

source’s opinion and the reasons for that weight. 

SSR 96-2p, 1996 WL 374188, at *5 (1996). See also Rogers, 486 F.3d at 242. For 

example, an ALJ may properly reject a treating source opinion if it lacks supporting 

objective evidence. Revels v. Sec. of Health & Human Servs, 882 F. Supp. 637, 640-41 

(E.D. Mich. 1994), aff’d, 51 F.3d 273, 1995 WL 138930, at *1 (6th Cir. 1995) 

(unpublished table decision).

An ALJ must analyze the credibility of the claimant, considering the claimant’s 

statements about pain or other symptoms with the rest of the relevant evidence in the 

record and factors outlined in Social Security Ruling 96-7p. Credibility determinations 

regarding a claimant’s subjective complaints rest with the ALJ. See Siterlet v. Sec’y of 

Health & Human Servs., 823 F.2d 918, 920 (6th Cir. 1987). Generally, an ALJ’s 

credibility assessment can be disturbed only for a “compelling reason.” Sims v. Comm’r 

of Soc. Sec., No. 09-5773, 2011 WL 180789, at *4 (6th Cir. Jan. 19, 2011) (citing Smith 

v. Halter, 307 F.3d 377, 379 (6th Cir. 2001)); Warner v. Comm’r of Soc. Sec., 375 F.3d 

387, 390 (6th Cir. 2004). 

The Social Security regulations establish a two-step process for evaluating 

subjective symptoms, including pain. 20 C.F.R. § 404.1529; SSR 96-7p, 1996 WL 

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374186, at *2. The ALJ evaluates complaints of disabling pain by confirming that 

objective medical evidence of the underlying condition exists. The ALJ then determines 

whether that condition could reasonably be expected to produce the alleged pain or 

whether other objective evidence verifies the severity of the pain. See 20 C.F.R. § 

404.1529; SSR 96-7p, 1996 WL 374186, at *2; Stanley v. Sec’y of Health & Human 

Servs., 39 F.3d 115, 117 (6th Cir. 1994). The ALJ ascertains the extent of the workrelated limitations by determining the intensity, persistence, and limiting effects of the 

claimant’s symptoms. SSR 96-7p, 1996 WL 374186, at *2. 

While “objective evidence of the pain itself” is not required, Duncan v. Sec’y of 

Health & Human Servs., 801 F.2d 847, 853 (6th Cir. 1986) (quotation omitted), a 

claimant’s description of his physical or mental impairments alone is “not enough to 

establish the existence of a physical or mental impairment,” 20 C.F.R. § 404.1528(a). 

Nonetheless, the ALJ may not disregard the claimant’s subjective complaints about the 

severity and persistence of the pain simply because they lack substantiating objective 

evidence. SSR 96-7p, 1996 WL 374186, at *1. Instead, the absence of objective 

confirming evidence forces the ALJ to consider the following factors:

(i) [D]aily activities;

(ii) The location, duration, frequency, and intensity of . . . pain;

(iii) Precipitating and aggravating factors;

(iv) The type, dosage, effectiveness, and side effects of any 

medication . . . taken to alleviate . . . pain or other symptoms;

(v) Treatment, other than medication, . . . received for relief of . . . 

pain;

(vi) Any measures . . . used to relieve . . . pain.

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20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). See also Felisky v. Bowen, 35 F.3d 1027, 

1039-40 (6th Cir. 1994); SSR 96-7p, 1996 WL 374186, at *3. Furthermore, the 

claimant’s work history and the consistency of his or her subjective statements are also 

relevant. 20 C.F.R. § 404.1527(c); SSR 96-7p, 1996 WL 374186, at *5.

The claimant must provide evidence establishing her RFC. The statute lays the 

groundwork for this, stating, “An individual shall not be considered to be under a 

disability unless he [or she] furnishes such medical and other evidence of the existence 

thereof as the Secretary may require.” 42 U.S.C. § 423(d)(5)(A). See also Bowen, 482 

U.S. at 146 n.5. The RFC “is the most he [or she] can still do despite his [or her] 

limitations,” and is measured using “all the relevant evidence in [the] case record.” 20 

C.F.R. § 404.1545(a)(2). A hypothetical question to the VE is valid if it includes all 

credible limitations developed prior to Step Five. Casey v. Sec. of Health & Human 

Servs., 987 F.2d 1230, 1235 (6th Cir. 1993); Donald v. Comm’r of Soc. Sec., No. 08-

14784-BC, 2009 WL 4730453, at *7 (E.D. Mich. Dec. 9, 2009).

G. Analysis 

Adams argues that the ALJ erred in the following ways: 1) Erroneously 

discounting the opinion of treating physician D.O. Legere-Struntz without giving good 

reasons for doing so; 2) Drafting an RFC that is not supported by medical evidence and 

improperly impugning Adams’ credibility; 3) Failing to discuss whether Adams could 

perform work on a consistent basis; 4) Failing to discuss Listing 1.04 regarding Adams’ 

spine ailment; 5) Failing to properly discuss Adams’ past relevant employment at Step 

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Four. Adams also argues that remand is appropriate pursuant to sentence six of 42 U.S.C. 

§ 405(g), because certain evidence was not available to the state agency consultative 

physicians. These arguments will be addressed in turn.

1. The ALJ Gave Good Reasons for the Weight Given to D.O. LegereStruntz’s Findings

Adams first asserts that the ALJ improperly rejected D.O. Legere-Struntz’s 

findings without giving the requisite “good reasons” for doing so, including consideration 

of the length, frequency, and nature of treatment, the supportability of the physician’s 

opinion, and the physician’s specialty. (Id. at 17-18). The ALJ gave sufficient “good 

reasons” to discount her findings. Specifically, the ALJ noted that her suggestion to 

Adams that he seek disability was a “one sentence” statement, which lacked any

explanation regarding the manner in which Adams was disabled, his residual functional 

capacity, or even clarifying whether Adams would be disabled temporarily or 

permanently. (Tr. 17). Furthermore, the ALJ asserted that D.O. Legere-Struntz’s notes 

from that October 2011 offer scant justification for her finding of disability. (Tr. 17, 513). 

While that physician found that Adams had chronic pain of the cervical spine and 

suffered from severe pain for several days after attempting to work, there are no objective 

findings, e.g. ability to lift, stand or squat, which would suggest that Adams was disabled. 

In January 2011 Adams was performing “a lot” of wood chopping and hauling, and by 

his own estimation was “doing well.” (Tr. 325). He did not seek treatment from any 

physician until October 2011, whereupon he asserted that he was experiencing constant 

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back pain, ranging from minor to extreme. (Tr. 513). While Adams’ latter medical 

records reveal consistent complaints of back pain, an MRI of his spine in early 2013 

revealed only “left sided neural foraminal stenosis at C6/7,” and an electrodiagnostic 

exam revealed only evidence of minimal carpal tunnel, some sensory problems in the 

upper left limb, and distal median neuropathy on the left side. (Tr. 460, 543). In his most 

recent medical records, produced in April and July 2013, Adams had few complaints 

regarding his back and left upper limb ailments, and received no treatment for those 

ailments. (Tr. 486-89). Adams’ records also generally indicate that he retained full 

strength in his limbs throughout his treatment. (Tr. 237, 305, 323, 327, 446, 452, 465, 

473). Perhaps most harmfully, Adams admitted in his final medical transcript prepared by 

D.O. Legere-Struntz in July 2013 that he “[w]as recently camping and tubing down the 

AuSable.”2 (Tr. 486). In short, D.O. Legere-Struntz’s notes are largely recordings of 

subjective complaints without objective support; she rendered no opinion regarding 

Adams’ functional limitations, and her statement that he should seek disability was 

wholly unsupported by evidence. The ALJ thus gave sufficiently “good reasons” for 

assigning no weight to D.O. Legere-Struntz’s statements. 

 2 While the ALJ did not specifically discuss this piece of evidence, his finding that 

Adams’ self-reports contradict his asserted degree of limitation is sufficient to encompass 

this evidence. (Tr. 17).

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2. The ALJ’s RFC Assessment and Credibility Determination Were

Supported by Substantial Evidence

Adams next argues that the ALJ erred by rendering an RFC assessment not 

supported by substantial evidence. Specifically, he asserts that “there is clear objective 

evidence which supports a finding of disability including MRI test results, surgical 

procedures, failed conservative treatment (physical therapy and epidural injections),” that 

the ALJ’s RFC “did not even include the primary physician records,” and “no reference 

in the hearing testimony relating [to] the significance of the objective findings below the 

fusion site.” (Doc. 13 at 20-21).

It cannot be doubted that Adams’ medical records contain numerous reports of 

pain, and findings of serious spinal problems. Adams underwent fusion of the cervical 

spine, and reported pain following that surgery on a generally consistent basis between 

December 2009 and August 2013. (Tr. 44-47, 541). While Adams on one occasion

eschewed the use of medication (Tr. 331) and on another turned down an offered 

exploratory surgery (Tr. 484), he sought treatment nearly thirty times between his 2009 

surgery and last appointment in 2013, and underwent a series of three pain relieving

injections in an attempt to mitigate his back pain in early 2013. (Tr. 460-470). 

In examining whether the ALJ’s decision is supported by substantial evidence, it 

may be helpful to examine each of the ways in which he supports his finding. First, the 

ALJ asserts that “the claimant’s allegations of impairment were not supported by 

objective evidence,” because Adams received “conservative treatment after his spinal 

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fusion,” and because the findings of his physicians were “essentially unremarkable.” (Tr. 

16-17). 

The objective medical evidence supports Adams’ assertion of chronic back and 

arm pain, but does not support his asserted degree of limitation resulting from that pain. 

Prior to his surgery, Adams experienced moderate to severe right foraminal stenosis with 

impingement at C3-C4, C4-C5, along with impingement of the nerve at C5 and some 

stenosis at C5-C6 and C6-C7. (Tr. 232-33). Following his surgery, Adams was found in

January 2010 to suffer from moderate degenerative disc disease at C6-C7 (Tr. 408); in 

March 2010 he showed narrowing of the anterior aspect of C3-C4 disc space (Tr. 398-

99); in August 2010 he showed early cervical spondylotic changes at C3-C4 with 

moderate cervical spondylotic changes at the C6-C7 level (Tr. 525); an EMG performed 

in February 2013 revealed bilateral median mononeuropathy in the carpal tunnel (Tr. 

453); and an MRI performed in February 2013 showed left sided neural foraminal 

stenosis at C6-C7 (Tr. 460-62). Adams was consistently found to retain full strength in all 

extremities. (Tr. 237, 305, 323, 327, 446, 452, 465, 473). Adams’ final treatment sessions 

generally focused on the treatment of a rash, and contained little mention of his back or 

arm ailments. (Tr. 486-91). 

It is also notable that only one physician, D.O. Hedstrom-Lara, discussed the 

possibility of surgery following Adams’ 2009 spinal fusion, which was an exploratory 

surgery that Adams declined. (Tr. 484). While Adams frequently sought treatment for 

back pain, his medication regimen was generally unchanged throughout his treatment, 

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and as of April 2013 was using only one pain relief medication, and reported pain at an 

intensity of four out of ten. (Tr. 491).

The ALJ also cites several pieces of evidence which challenge Adams’ credibility 

regarding his asserted degree of pain and limitation. In particular, he notes that Adams 

admitted to chopping and hauling large pieces of wood for his stove, along with engaging 

in recreational hunting and fishing. (Tr. 15). The ALJ thus concludes that Adams’ “own 

self-reports to providers were not consistent with his allegations of disability and 

limitation.” (Tr. 17). This conclusion requires some additional explanation. Adams’ selfreported level of activity was indeed inconsistent with disability through January 31, 

2011, which was the last date upon which Adams spoke of performing wood chopping. 

(Tr. 325). On that date, Adams reported that his worst pain was three out of ten (id.); by 

October 20, 2011, Adams reported experiencing pain that ranged from “minimal to 

extreme,” and that he experienced severe and disabling pain for several days after 

attempting to perform a day’s work (Tr. 513). Similarly, whereas Adams told a physician 

in December 2010 that he regularly went hunting and fishing (Tr. 332), Adams wrote in 

his June 2012 function report that he was unable to walk the distances necessary to hunt, 

and rarely went fishing or camping (Tr. 205). At the August 2013 hearing before the ALJ, 

Adams testified that he was unable to hold a gun or fishing rod, and thus could not 

engage in hunting or fishing. (Tr. 46). If the record ended here, the question of whether 

the ALJ’s decision was supported by substantial evidence would be a close one. 

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While Adams admittedly retained some ability to participate in his outdoor 

hobbies through June 2012, his medical records and self-reported limitations generally 

indicate that his spine an arm conditions worsened following October 2011; the record 

could thus be read to support Adams’ claims of disability at some point in 2012 or 2013. 

However, this interpretation is confounded by one record which no party specifically 

references: in July 2013 Adams reported that he “[w]as recently camping and tubing 

down the AuSable.” (Tr. 486). This record discredits Adams’ assertion that he suffered 

from consistently worsening pain related to his arm and spine condition, providing good 

reason to question the veracity of Adams’ statements regarding the severity of his pain 

and his limited ability to engage in hunting, fishing, wood chopping, camping, and other 

strenuous activities. (Tr. 486). This record also contradicts Adams’ August 2013 assertion

that he was unable to sit for more than ten to fifteen minutes at a time, as common sense 

dictates that “tubing down the AuSable” would require more than fifteen minutes of 

sitting. (Tr. 40-41, 486). This record also gives good reason to doubt Adams’ report that 

he could be “perfectly good one hour, and the next hour I feel like I could lay down and 

die somewhere,” particularly given that he asserted that he experienced such extreme 

pain four or five times a day. (Tr. 36).

There is also a notable dearth of objective findings or doctor notes regarding 

Adams’ alleged difficulty sitting in the record. In his June 2012 function report, Adams 

wrote he could sit for one hour without pain. (Tr. 201). Adams apparently only 

mentioned his sitting limitations to Dr. Krieger of the state disability determination 

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service in July 2012, wherein he asserted that he could sit for an hour without pain. (Tr. 

443). Adams sharply reduced this number to “ten to fifteen minutes” in his statements 

before the ALJ in August 2013. (Tr. 40-41). Adams apparently never complained of

difficulty sitting when treating with his various physicians, and no apparent cause for his 

sharp decline in sitting ability between 2012 and 2013 can be found in the record. Again, 

while the ALJ did not specifically cite this inconsistency as a justification for his 

decision, the ALJ’s finding that Adams’ condition was “generally normal,” that his 

treatment was generally conservative, and that his treatment records indicate at least the 

level of functionality identified by Dr. Choi are sufficient to encompass this reasoning. 

(Tr. 16-17). 

Thus, while the ALJ can be said to have produced a somewhat lackadaisical 

decision, and did not specifically cite every piece of evidence impugning Adams’ 

credibility, he did a sufficient job of noting the inconsistency between Adams’ reported 

level of disability and his own self-reported hobbies, and properly noted the generally 

conservative treatment for his ailments following his 2009 surgery. 

3. Adams’ Other Claims Are Non-Meritorious 

Adams also argues that the ALJ erred by failing to discuss whether his work could 

be performed on a consistent basis, failed to discuss Listing 1.04, and failed to discuss his

past employment. Additionally, Adams argues that remand is appropriate pursuant to 

sentence six of 42 U.S.C. § 405(g). 

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First, as courts around the country have repeatedly found, “an RFC implicitly 

includes the determination on whether the claimant can sustain a regular work schedule.”

See Houston v. Comm’r of Soc. Sec., No. 14-14426, 2015 WL 5752720, at *18 (E.D. 

Mich. Aug. 25, 2015) (compiling cases) report and recommendation adopted, No. 14-

14426, 2015 WL 5729079 (E.D. Mich. Sept. 30, 2015). The ALJ was thus not required to 

specifically state that his RFC assessment assumed Adams was capable of sustaining a 

regular work schedule. 

Second, while Adams suggests that the ALJ “failed to consider the application of 

Listing 1.04 in the decision,” he does not point to evidence sufficient to meet that listing. 

(Doc. 13 at 21-22). Listing 1.04 relates to disorders of the spine. Specifically Listing 

1.04A refers to evidence of nerve root compression characterized by specific clinical 

findings; Listing 1.04 B refers to spinal arachnoiditis, confirmed by an operative note or 

tissue biopsy, and Listing 1.04C refers to lumbar spinal stenosis that results in certain 

findings on diagnostic imaging techniques and certain specified physical limitations. 20 

C.F.R. Part 404. To warrant remand, “[a] claimant must do more than point to evidence 

on which the ALJ could have based his finding . . . [r]ather, the claimant must point to 

specific evidence that demonstrates he reasonably could meet or equal every requirement 

of the listing.” See Smith-Johnson v. Comm’r of Soc. Sec., 579 F. App’x 426, 432 (6th 

Cir. 2014). Here, Adams merely suggests that there are “clear indications of a spinal 

injury,” including “the surgical procedure and the fact that objective evidence indicated 

further deficit at a level below the fusion.” (Doc. 13 at 22). This non-specific reference to 

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the medical record cannot support remand. For his part, the ALJ sufficiently explained 

why Adams did not meet this listing by evaluating in detail the objective findings relating 

to Adams’ spinal impairments. (Tr. 14-17). Thus, no error can be found on this point 

either. 

Third, Adams’ complaint that the ALJ did not evaluate his ability to perform his 

past work is a misreading of the ALJ’s decision. (Doc. 13 at 14, 20). The ALJ stated in 

his decision that Adams was unable to perform his past relevant work. (Tr. 18). The ALJ 

did not identify Adams’ past relevant work by title in the decision, but instead referenced 

the oral hearing in which the issue was thoroughly discussed with the VE. (Id.). This

incorporation by reference is more than sufficient to satisfy the ALJ’s burden. Even if the 

ALJ erred at Step Four, his Step Five finding that Adams is able to perform jobs which 

exist in a substantial number in the national economy would render any Step Four error 

harmless. See, e.g., Martinez v. Astrue, 316 F. App’x 819, 824 (10th Cir. 2009) (finding a 

Step Four error harmless in light of an alternate Step Five finding); Rice v. Comm’r of 

Soc. Sec., No. 12-CV-15690, 2014 WL 521045, at *8 (E.D. Mich. Feb. 10, 2014) (same).

Furthermore, it is somewhat quizzical why Adams takes issue with this portion of the 

ALJ’s decision. Whether a claimant can perform his or her past relevant employment is 

determined at Step Four of the five-step sequential analysis; as noted above, through Step 

Four the claimant bears the burden of proving the existence and severity of their 

limitations. See Jones, 336 F.3d at 474. Even if the ALJ failed to properly consider 

whether Adams was able to perform his past relevant work, this failure would inure to 

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Adams’ benefit, making it more likely that he would receive benefits. See Roby v. 

Comm’r of Soc. Sec., No. CIV.A. 12-10615, 2013 WL 451329, at *4 (E.D. Mich. Jan. 14, 

2013) (“[T]he ALJ’s finding of no past relevant work was actually favorable to Plaintiff. 

Thus even assuming the ALJ somehow erred in concluding that Plaintiff had to prior 

relevant work, any such error was harmless to Plaintiff.”) report and recommendation 

adopted, No. 12-CV-10615, 2013 WL 450934 (E.D. Mich. Feb. 6, 2013).

Finally, Adams asserts that remand pursuant to sentence six of 42 U.S.C. § 405(g)

is appropriate because the state agency consultative physicians, Drs. Choi and Pinaire

rendered their decisions without the benefit of “the treating physician’s notes which 

indicate psychiatric, cardiac, and GI conditions.” (Doc. 13 at 28). Adams has simply 

misconstrued the purpose of sentence six remand. Remand pursuant to that provision is 

“appropriate only when the district court learns of evidence not in existence or available 

to the claimant at the time of the administrative proceeding that might have changed that 

proceeding’s outcome.” Sullivan v. Finkelstein, 496 U.S. 617, 618 (1990). Here, all 

relevant medical records were available to the ALJ at the time of the administrative 

hearing; whether those records were available to the state agency consultative physicians

is irrelevant to this inquiry, thus remand under sentence six is not appropriate. 

H. Conclusion

For the reasons stated above, the Court RECOMMENDS that Adams’ Motion for 

Summary Judgment (Doc. 13) be DENIED, the Commissioner’s Motion (Doc. 16) be 

GRANTED, and that this case be AFFIRMED. 

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III. REVIEW

Pursuant to Rule 72(b)(2) of the Federal Rules of Civil Procedure, “[w]ithin 14 

days after being served with a copy of the recommended disposition, a party may serve 

and file specific written objections to the proposed findings and recommendations. A 

party may respond to another party’s objections within 14 days after being served with a 

copy.” Fed. R. Civ. P. 72(b)(2). See also 28 U.S.C. § 636(b)(1). 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. Sec’y of Health & Human Servs., 

932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The 

parties are advised that making some objections, but failing to raise others, will not 

preserve all the objections a party may have to this Report and Recommendation. Willis 

v. Sec’y of Health & 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 E.D. 

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

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,” etc. 

Any objection must recite precisely the provision of this Report and Recommendation to 

which it pertains. Not later than 14 days after service of an objection, the opposing party 

may file a concise response proportionate to the objections in length and complexity. Fed. 

R. Civ. P. 72(b)(2); E.D. Mich. LR 72.1(d). The response must specifically address each 

issue raised in the objections, in the same order, and labeled as “Response to Objection 

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36

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: December 8, 2015 s/ patricia t. morris

Patricia T. Morris

United States Magistrate Judge

CERTIFICATION

I hereby certify that the foregoing document was electronically filed this date 

through the Court’s CM/ECF system which delivers a copy to all counsel of record. 

Date: December 8, 2015 By s/Kristen Krawczyk 

 Case Manager to Magistrate Judge Morris

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