UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROBERT COTTER II,

Plaintiff,

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

____________________________________/

Case No. 14-13215

Marianne O. Battani

United States District Judge

Stephanie Dawkins Davis

United States Magistrate Judge

REPORT AND RECOMMENDATION

CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkt. 25, 27)

I. PROCEDURAL HISTORY

A. Proceedings in this Court

On August 20, 2014, plaintiff filed the instant suit seeking judicial review of

the Commissioner’s unfavorable decision disallowing benefits. (Dkt. 1). Pursuant

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

Battani referred this matter to Magistrate Judge Michael Hluchaniuk for the

purpose of reviewing the Commissioner’s decision denying plaintiff’s claims for a

period of disability, disability insurance benefits and supplemental security

income. (Dkt. 3). Both parties filed briefs in this case (Dkt. 9, 10). This Court

then referred the matter to a three-judge panel to consider a request for a sixty-day

stay and substitution of counsel. That panel subsequently transferred the case

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back to the original judge, lifted the stay (Dkt. 13), struck the parties’ briefs, and

ordered supplemental briefing (Dkt. 17). This matter was reassigned to the

undersigned pursuant to Administrative Order on January 5, 2016. (Text-only

Order of Reassignment). This matter is now before the Court on the re-filed

 cross-motions for summary judgment. (Dkt. 25, 27). These motions are now

ready for report and recommendation.

B. Administrative Proceedings

Plaintiff filed the instant claim for disability insurance benefits on January

26, 2012, alleging disability beginning May 22, 2006. (Dkt. 7-2, Pg ID 40). 

Plaintiff’s claims were initially denied by the Commissioner on July 3, 2012. Id.

Plaintiff requested a hearing and on March 26, 2013, plaintiff testified before

Administrative Law Judge (“ALJ”) Joy Turner, who considered the case de novo. 

(Dkt. 7-2, Pg ID 57-87). In a decision dated May 7, 2013, the ALJ found that

plaintiff was not disabled. (Dkt. 7-2, Pg ID 40-52). Plaintiff requested a review of

this decision, and the ALJ’s decision became the final decision of the

Commissioner when the Appeals Council, on June 21, 2014, denied plaintiff’s

request for review. (Dkt. 7-2, Pg ID 29-31); Wilson v. Comm’r of Soc. Sec., 378

F.3d 541, 543-44 (6th Cir. 2004).

For the reasons set forth below, the undersigned RECOMMENDS that

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

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for summary judgment be DENIED, and that, pursuant to 42 U.S.C. § 405(g), the

decision of the Commissioner of Social Security be REVERSED AND

REMANDED for proceedings consistent with this Report and Recommendation.

II. FACTUAL BACKGROUND

A. ALJ Findings

Plaintiff was born in 1978 and was 34 years old on the date last insured,

December 31, 2012. (Dkt. 7-2, Pg ID 51). Plaintiff had past relevant work as a

general foreman. (Dkt. 7-2, Pg ID 65-67). The ALJ applied the five-step

disability analysis to plaintiff’s claims and found at step one that plaintiff had not

engaged in substantial gainful activity from May 22, 2006, the alleged onset date

to the date he was last insured, December 31, 2012. (Dkt. 7-2, Pg ID 42). At step

two, the ALJ found that plaintiff had the following severe impairments:

degenerative joint disease of the right ankle; degenerative joint disease of the right

knee; degenerative disc disease of the lumbar spine; obesity; mood disorder;

depression; and adjustment disorder. Id. Plaintiff’s neck pain, bilateral shoulder

pain, osteoarthritis of the right wrist, bilateral carpel tunnel syndrome, and/or

bilateral cubital tunnel syndrome, were deemed non-severe. (Dkt. 7-2, Pg ID 42-

43). Plaintiff’s complaints of incontinence had ceased by July 2011 and were

deemed not medically determined. (Dkt. 7-2, Pg ID 43). At step three, the ALJ

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

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of the listings in the regulations. (Dkt. 7-2, Pg ID 43-45). 

The ALJ determined that plaintiff had the residual functional capacity

(RFC) to perform unskilled sedentary work...

[h]e cannot reach overhead with his left upper extremity.

He has no limitations in his dominant right upper

extremity. [He] requires the option to sit or stand at will.

[h]e can occasionally climb ramps and stairs...[but] never

climb ladders, ropes, or scaffolds; he may occasionally

balance, stoop, kneel, crouch, and crawl. He can

occasionally balance, kneel, stoop, crouch or crawl. [He]

must avoid hazards such as unprotected heights and

dangerous moving machinery. He is limited to simple,

routine tasks. [He] can interact occasionally with coworkers and supervisors. He cannot interact with the

public.

(Dkt.7-2, Pg ID 45). At Step Four, the ALJ found that plaintiff could not perform

his past relevant work. (Dkt. 7-2, Pg ID 51). However, the ALJ determined that,

considering plaintiff’s age, education, experience, and RFC, there were jobs that

exist in sufficient numbers that plaintiff can perform and therefore, plaintiff had

not been under a disability from the alleged onset date through the date last

insured. (Dkt. 7-2, Pg ID 51-52).

B. Plaintiff’s Claims of Error

Plaintiff argues that the ALJ’s decision of non-disability is not supported by

substantial evidence because the ALJ improperly discounted the opinion of

plaintiff’s treating orthopaedic surgeon. (Dkt. 25, Pg ID 534-543). Plaintiff

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specifically argues that the treating physician rule requires the ALJ to give the

treating source’s opinions on the nature and severity of the impairments

controlling weight as long they are well-supported by medically accepted clinical

or laboratory diagnostic techniques and not inconsistent with other substantial

evidence in the record. (Dkt. 25, Pg ID 536). Plaintiff posits that if the ALJ finds

that the treating physician’s opinion is not entitled to controlling weight, the

decision must contain specific reasons for the weight assigned to the treating

source’s opinion, supported by evidence in the case record, and must be

sufficiently specific to make clear to any subsequent reviewer the weight the

adjudicator gave the treating source’s medical opinion and the reasons for that

weight. Id. (citing Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir.

2007). 

Plaintiff argues that the reasons for giving the opinions of plaintiff’s treating

orthopaedic surgeon, Dr. Mendelson, limited weight are not supported by

substantial evidence. (Dkt. 25, Pg ID 541). Plaintiff contends that the ALJ erred

by relying solely on Dr. Mendelson’s comments denoting progress and

improvement shortly after his 2007 surgery, while ignoring notes reflecting

ongoing consequences from his injury and reconstructive surgery. Id. 

Plaintiff also argues that the ALJ’s findings are not supported by substantial

evidence because she selectively chose unrepresentative and unreliable negative

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EMG, MRI and X-Ray findings, and ignored or misstated positive findings to

minimize plaintiff’s impairments. (Dkt. 25, Pg ID 546). On this basis, plaintiff

argues he is entitled to a remand for a new hearing. 

C. The Commissioner’s Motion for Summary Judgment

The Commissioner contends that substantial evidence supports the ALJ’s

weighing of conflicting medical opinion evidence. (Dkt. 27, Pg ID 557-565). The

Commissioner notes that the ALJ gave limited weight to Dr. Mendelson’s

opinions because they did not reflect the progress and improvement he achieved

through conservative care. First, the Commissioner notes that Dr. Mendelson’s

opinions were largely consistent with the ALJ’s RFC; specifically Dr. Mendelson

limited plaintiff to sedentary work (Dkt. 7-7, Pg ID 301), and the ALJ concluded

that plaintiff had the RFC for sedentary work (Dkt. 7-2, Pg ID 45). The doctor

also concluded that plaintiff could engage in limited walking and could not lift

more than 10 pounds (Dkt. 7-7, Pg ID 301), and sedentary work involves standing

and walking for no more than two hours in an eight-hour day, and lifting no more

than 10 pounds at a time. Moreover, while Dr. Mendelson’s opinion precluded

bending (Dkt. 7-7, Pg ID 301), the ALJ partially accounted for that limitation by

restricting Plaintiff to occasional stooping (Dkt. 7-2, Pg ID 45). (Dkt. 27, Pg ID

558-559). Furthermore, according to the Commissioner, the objective medical

records corroborated the ALJ’s conclusion that plaintiff’s condition improved after

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Dr. Mendelson’s 2007 opinion. (Dkt. 27, Pg ID 559-560). The Commissioner

emphasizes that plaintiff underwent conservative treatment for his back pain,

including pain medication, physical therapy, and a TENS unit (Dkt. 7-7, Pg ID

290, 296-297, 304, 305, 311, 332), and he indicated that his pain was better after

physical therapy (Dkt. 7-7, Pg ID 290, 296-297, 302), that plaintiff’s strength and

sensation were intact from May 2007 to January 2008 (Dkt. 7-7, Pg ID 297, 302),

his September 2008 and June 2009 repeat lumbar studies were unchanged and

stable (Dkt. 7-7, Pg ID 290, 419), and his EMG of the lumbar spine was negative

for radiculopathy. (Dkt. 7-7 , Pg ID 320; Dkt. 27, Pg ID 560). 

The Commissioner argues the ALJ-noted opinions of Dr. Friedman and Dr.

LaClair did not corroborate Dr. Mendelson’s opinion. Id. Dr. Friedman

concluded that plaintiff was limited to work that did not require more than 30

minutes of standing or walking; repetitive bending, squatting, stooping, creeping,

crawling; or reaching with his left arm above shoulder level. (Dkt. 7-7, Pg ID

352). Dr. LaClair also opined that plaintiff was restricted to work that allowed

for a sit/stand option and did not require lifting more than 15 pounds, crawling,

kneeling, squatting or the performance of repetitive bending, lifting, twisting,

stooping, or stair climbing. (Dkt. 7-7, Pg ID 390). Additionally, the

Commissioner contends that Dr. Friedman’s observations that plaintiff was not

putting forth full effort, that he was exaggerating his symptoms and profound pain

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reactions, and that he could sit and stand without difficulty (Dkt. 7-7, PgID 351-

352) was inconsistent with Dr. Mendelson’s opinion.

In sum, the Commissioner argues that the ALJ provided good reasons for

giving the treating doctor’s opinion limited weight, as the ALJ found that

Plaintiff’s back problems had not progressed since the opinion was given and his

pain improved with conservative treatment (Dkt. 7-2, PgID 49), findings that are

supported by substantial evidence. (Dkt. 27, PgID 561-562). Countering

plaintiff’s arguments that the ALJ did not consider the required regulatory factors,

the Commissioner notes the ALJ also considered the doctor’s length of

treatment and specialization, as she noted Dr. Mendelson’s status as an

orthopaedic surgeon (Dkt. 7-2, Pg ID 47), and his treatment of plaintiff back to

June 2007. (Dkt. 7-2, Pg ID 46, Dkt. 7-7, Pg ID 300-301). Further, with respect

to the regulatory factors of supportability and consistency, the Commissioner

argues that plaintiff failed to point to any treatment report from Dr. Mendelson or

other evidence in the record that substantiates the doctor’s opinion. (Dkt. 27, Pg

ID 563). Therefore, as the ALJ took into consideration the doctor’s treatment

history, specialization, and the evidence of record that established that plaintiff’s

back impairment improved with treatment (Dkt. 7-2, Pg ID 46), she properly

evaluated Dr. Mendelson’s opinion. 

Furthermore, the Commissioner argues that the ALJ properly disregarded

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Dr. Mendelson’s later opinions in which he opined that plaintiff was permanently

disabled. (Dkt. 7-7, Pg ID 283). Such an opinion is not entitled to controlling

weight, and in fact, is not entitled to any special significance, as the opinion is on

an issue reserved to the Commissioner. Bass v. McMahon, 499 F.3d 506, 511 (6th

Cir. 2007) (quoting 20 C.F.R. § 404.1527(e)(3)) (“Subsection (e)(3) further

elaborates that no ‘special significance’ will be given to opinions of disability,

even if they come from a treating physician.”); 20 C.F.R. § 404.1527(d)(3) (“We

will not give any special significance to the source of an opinion on issues

reserved to the Commissioner.”). Further, the Commissioner argues that opinions

on issues reserved to Commissioner are not medical opinions that require explicit

consideration by the ALJ. See Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 652

(6th Cir. 2009) (“Precedent in this circuit and agency rulings support the ALJ’s

conclusion that Dr. McCord’s opinion of Allen’s credibility addresses one of the

issues reserved to the Commissioner and therefore is not a medical opinion

requiring consideration.”).

The Commissioner also argues that the ALJ’s findings are otherwise

supported by substantial evidence. The Commissioner argues that plaintiff failed

to establish that the ALJ could not rely on the results of the May 2009 EMG. The

findings from the EMG were as follows: “SUMMARY: NORMAL STUDY,”

“Normal EMG and nerve conduction values of lower extremities” (Dkt. 7-7, Pg ID

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320). While the test results indicated that the EMG was a limited study (Dkt. 7-7,

Pg ID 320, according to the Commissioner, that does not negate the normal

results. (Dkt. 27, Pg ID 567).

Moreover, plaintiff contrasts the 2009 EMG results with the results from his

August 2011 EMG, arguing that those results do not provide “support for the

ALJ’s overall rationale, including rejection of Dr. Mendelson’s opinions.” (Dkt.

25, Pg ID 545). The Commissioner counters by arguing that the 2011 EMG study

revealed mild bilateral carpal tunnel syndrome and mild bilateral ulnar neuropathy,

presenting as cubital tunnel syndrome (Dkt. 7-7, Pg ID 418), conditions the ALJ

found to be non-severe impairments (Dkt. 7-2, Pg ID 42-43). The Commissioner

notes there has been no challenge to that determination and that other evidence in

the record supports the ALJ’s finding that this impairment was non-severe (Dkt. 7-

7, Pg ID 281, 351, 403, 408), including Plaintiff’s May 2011 consultative

examination findings where Dr. Friedman observed that his right wrist range of

motion was full, his Hoffman’s sign was negative bilaterally, there was no focal or

diffuse weakness in the major muscle groups of his upper extremities, and he

provided poor effort on grip testing. (Dkt. 7-7, Pg ID 351). According to the

Commissioner, the plaintiff does not explain how his August 2011 EMG results

contradict the ALJ’s decision or corroborates Dr. Mendelson’s opinion. (See Dkt.

25, Pg ID 545).

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The Commissioner also refutes plaintiff’s argument that his 2009 MRI does

not support the ALJ’s finding that his back condition was stable. The

Commissioner emphasizes that the ALJ noted that Plaintiff’s lumbar spine MRI

and x-rays had been repeated and that his condition was unchanged and stable. 

(Dkt. 7-2, Pg ID 46). According to the Commissioner, a review of both of the

referenced test results demonstrates that the ALJ’s finding is supported by

substantial evidence. (Dkt. 27, Pg ID 568). The Commissioner notes that, on

September 11, 2008, Dr. Munk concluded that Plaintiff’s repeat x-rays showed no

obvious fractures or dislocations, and there had been no changes or worsening of

his degenerative disc disease. (Dkt. 7-7, Pg ID 290). The doctor added that

Plaintiff could continue with conservative treatment, and he seemed to be doing

relatively well. Id. Plaintiff then underwent a lumbar spine MRI in June 2009,

and Dr. Porter-Grenn indicated that there was a component of degenerative disc

disease between L4 and S1. (Dkt. 7-7, Pg ID 419). This result, however, is

seemingly unchanged from Plaintiff’s initial lumbar spine MRI, as Dr. Munk

concluded in January 2007, that the study indicated degenerative changes at L4-5

and L5-S1 with no significant disc herniation. (Dkt. 7-7, Pg ID 307). Therefore,

given that an ALJ is permitted to weigh the evidence in the record, her conclusion

on this issue is permissible. Richardson v. Perales, 402 U.S. 389, 399-400 (1971). 

The ALJ provided sufficient evidence for this Court to review the evidence relied

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on in reaching the decision. The Commissioner also notes that an allegation, like

plaintiff’s, of “‘cherry picking’ the record . . . is seldom successful because

crediting it would require a court to re-weigh record evidence.” DeLong v.

Comm’r of Soc. Sec. Admin., 748 F.3d 723, 726 (6th Cir. 2014). (Dkt. 27, Pg ID

569-570).

III. DISCUSSION

A. Standard of Review

In enacting the social security system, Congress created a two-tiered system

in which the administrative agency handles claims, and the judiciary merely

reviews the agency determination for exceeding statutory authority or for being

arbitrary and capricious. Sullivan v. Zebley, 493 U.S. 521 (1990). The

administrative process itself is multifaceted in that a state agency makes an initial

determination that can be appealed first to the agency itself, then to an ALJ, and

finally to the Appeals Council. Bowen v. Yuckert, 482 U.S. 137 (1987). If relief is

not found during this administrative review process, the claimant may file an

action in federal district court. Mullen v. Bowen, 800 F.2d 535, 537 (6th Cir.

1986).

This Court has original jurisdiction to review the Commissioner’s final

administrative decision pursuant to 42 U.S.C. § 405(g). Judicial review under this

statute is limited in that the court “must affirm the Commissioner’s conclusions

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absent a determination that the Commissioner has failed to apply the correct legal

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

record.” Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005);

Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). In deciding

whether substantial evidence supports the ALJ’s decision, “we do not try the case

de novo, resolve conflicts in evidence, or decide questions of credibility.” Bass v.

McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Garner v. Heckler, 745 F.2d 383,

387 (6th Cir. 1984). “It is of course for the ALJ, and not the reviewing court, to

evaluate the credibility of witnesses, including that of the claimant.” Rogers v.

Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007); Jones v. Comm’r of Soc.

Sec., 336 F.3d 469, 475 (6th Cir. 2003) (an “ALJ is not required to accept a

claimant’s subjective complaints and may ... consider the credibility of a claimant

when making a determination of disability.”); Cruse v. Comm’r of Soc. Sec., 502

F.3d 532, 542 (6th Cir. 2007) (the “ALJ’s credibility determinations about the

claimant are to be given great weight, particularly since the ALJ is charged with

observing the claimant’s demeanor and credibility.”) (quotation marks omitted);

Walters, 127 F.3d at 531 (“Discounting credibility to a certain degree is

appropriate where an ALJ finds contradictions among medical reports, claimant’s

testimony, and other evidence.”). “However, the ALJ is not free to make

credibility determinations based solely upon an ‘intangible or intuitive notion

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about an individual’s credibility.’” Rogers, 486 F.3d at 247, quoting Soc. Sec.

Rul. 96-7p, 1996 WL 374186, *4.

 If supported by substantial evidence, the Commissioner’s findings of fact

are conclusive. 42 U.S.C. § 405(g). Therefore, this Court may not reverse the

Commissioner’s decision merely because it disagrees or because “there exists in

the record substantial evidence to support a different conclusion.” McClanahan v.

Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006); Mullen v. Bowen, 800

F.2d 535, 545 (6th Cir. 1986) (en banc). Substantial evidence is “more than a

scintilla of evidence but less than a preponderance; it is such relevant evidence as

a reasonable mind might accept as adequate to support a conclusion.” Rogers, 486

F.3d at 241; Jones, 336 F.3d at 475. “The substantial evidence standard

presupposes that there is a ‘zone of choice’ within which the Commissioner may

proceed without interference from the courts.” Felisky v. Bowen, 35 F.3d 1027,

1035 (6th Cir. 1994) (citations omitted), citing, Mullen, 800 F.2d at 545. 

The scope of this Court’s review is limited to an examination of the record

only. Bass, 499 F.3d at 512-13; Foster v. Halter, 279 F.3d 348, 357 (6th Cir.

2001). When reviewing the Commissioner’s factual findings for substantial

evidence, a reviewing court must consider the evidence in the record as a whole,

including that evidence which might subtract from its weight. Wyatt v. Sec’y of

Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). “Both the court of

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appeals and the district court may look to any evidence in the record, regardless of

whether it has been cited by the Appeals Council.” Heston v. Comm’r of Soc.

Sec., 245 F.3d 528, 535 (6th Cir. 2001). There is no requirement, however, that

either the ALJ or the reviewing court must discuss every piece of evidence in the

administrative record. Kornecky v. Comm’r of Soc. Sec., 167 Fed. Appx. 496, 508

(6th Cir. 2006) (“[a]n ALJ can consider all the evidence without directly

addressing in his written decision every piece of evidence submitted by a party.”)

(internal citation marks omitted); see also Van Der Maas v. Comm’r of Soc. Sec.,

198 Fed. Appx. 521, 526 (6th Cir. 2006).

B. Governing Law

The “[c]laimant bears the burden of proving his entitlement to benefits.” 

Boyes v. Sec’y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994);

accord, Bartyzel v. Comm’r of Soc. Sec., 74 Fed. Appx. 515, 524 (6th Cir. 2003). 

There are several benefits programs under the Act, including the Disability

Insurance Benefits Program (DIB) of Title II (42 U.S.C. §§ 401 et seq.) and the

Supplemental Security Income Program (SSI) of Title XVI (42 U.S.C. §§ 1381 et

seq.). Title II benefits are available to qualifying wage earners who become

disabled prior to the expiration of their insured status; Title XVI benefits are

available to poverty stricken adults and children who become disabled. F. Bloch,

Federal Disability Law and Practice § 1.1 (1984). While the two programs have

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different eligibility requirements, “DIB and SSI are available only for those who

have a ‘disability.’” Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). 

“Disability” means:

inability to engage in any substantial gainful activity by

reason of any medically determinable physical or mental

impairment which can be expected to result in death or

which has lasted or can be expected to last for a

continuous period of not less than 12 months.

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); see also 20 C.F.R. § 416.905(a)

(SSI).

The Commissioner’s regulations provide that disability is to be determined

through the application of a five-step sequential analysis:

Step One: If the claimant is currently engaged in

substantial gainful activity, benefits are denied without

further analysis.

Step Two: If the claimant does not have a severe

impairment or combination of impairments, that

“significantly limits ... physical or mental ability to do

basic work activities,” benefits are denied without

further analysis.

Step Three: If plaintiff is not performing substantial

gainful activity, has a severe impairment that is expected

to last for at least twelve months, and the severe

impairment meets or equals one of the impairments listed

in the regulations, the claimant is conclusively presumed

to be disabled regardless of age, education or work

experience.

Step Four: If the claimant is able to perform his or her

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past relevant work, benefits are denied without further

analysis.

Step Five: Even if the claimant is unable to perform his

or her past relevant work, if other work exists in the

national economy that plaintiff can perform, in view of

his or her age, education, and work experience, benefits

are denied.

Carpenter v. Comm’r of Soc. Sec., 2008 WL 4793424 (E.D. Mich. 2008), citing,

20 C.F.R. §§ 404.1520, 416.920; Heston, 245 F.3d at 534. “If the Commissioner

makes a dispositive finding at any point in the five-step process, the review

terminates.” Colvin, 475 F.3d at 730. 

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

and severity of limitations caused by her impairments and the fact that she is

precluded from performing her past relevant work.” Jones, 336 F.3d at 474, cited

with approval in Cruse, 502 F.3d at 540. If the analysis reaches the fifth step

without a finding that the claimant is not disabled, the burden transfers to the

Commissioner. Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006). 

At the fifth step, the Commissioner is required to show that “other jobs in

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

given [his] RFC and considering relevant vocational factors.” Rogers, 486 F.3d at

241; 20 C.F.R. §§ 416.920(a)(4)(v) and (g).

If the Commissioner’s decision is supported by substantial evidence, the

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decision must be affirmed even if the court would have decided the matter

differently and even where substantial evidence supports the opposite conclusion. 

McClanahan, 474 F.3d at 833; Mullen, 800 F.2d at 545. In other words, where

substantial evidence supports the ALJ’s decision, it must be upheld.

C. Analysis

1. Treating Physician Opinion

“Medical opinions are statements from physicians and psychologists or

other ‘acceptable medical sources’ that reflect judgments 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.” SSR 06-3p, 2006 WL 2329939, at *2 (2006). An

opinion from a medical source who has examined a claimant is given more weight

than that from a source who has not performed an examination (a “nonexamining

source”), and an opinion from a medical source who regularly treats the claimant

(a “treating source”) is afforded more weight than that from a source who has

examined the claimant but does not have an ongoing treatment relationship (a

“nontreating source”). Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375 (6th

Cir. 2013) (internal citations omitted). 

An ALJ is required to give controlling weight to the opinions of a treating

source if the opinion “is well-supported by medically acceptable clinical and

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laboratory diagnostic techniques and is not inconsistent with the other substantial

evidence in [the] case record.” 20 C.F.R. § 404.1527(c)(2). If the ALJ chooses

not to give a treating source controlling weight, the ALJ must still “apply certain

factors—namely, the length of the treatment relationship and 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 the

specialization of the treating source—in determining what weight to give the

opinion.” Dickey-Williams v. Comm’r of Soc. Sec., 975 F. Supp. 2d 792, 802

(E.D. Mich. 2013) (citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th

Cir. 2004)).

When refusing to give controlling weight to a treating source, an ALJ must

give good reasons for discounting the weight given to a treating-source opinion.

Dickey-Williams, 975 F.Supp.2d at 803 (citing Gayheart v. Comm'r of Soc. Sec.,

710 F.3d 365 (6th Cir. 2013)). 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 source’s

medical opinion and the reasons for that weight. Gayheart, 710 F.3d at 376. This

procedural requirement ensures that the ALJ applies the treating physician rule

and permits meaningful review of the ALJ's application of the rule. Id. In

Gayheart, the court ruled that the ALJ failed to set forth good reasons for how and

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why the treating doctor’s opinions failed the controlling weight test because, inter

alia, he did not identify the substantial evidence that was purportedly inconsistent

with the treating source’s opinions. Id. at 376-377. 

Here, the ALJ does not set forth good reasons for how and why Dr.

Mendelson’s June 2007 opinion regarding plaintiff’s ability to perform limited

sedentary work is not entitled to controlling weight. The ALJ’s only justification

for discounting Dr. Mendelson’s opinion is that plaintiff’s condition progressed

and improved with conservative treatment after 2007. Nevertheless, the ALJ does

1

not identify any evidence from the record to support that conclusion, or any

substantial evidence inconsistent with Dr. Mendelson’s opinion. Indeed, as

discussed more fully infra, Dr. Mendelson’s opinions regarding plaintiff’s postural

limitations are consistent with those of Dr. Friedman and Dr. LaClair, consulting

examiners whose opinions were given great weight by the ALJ. Additionally,

nothing in Dr. Mendelson’s later reports conflict with his 2007 opinion, with the

exception of his conclusion that plaintiff is permanently disabled (Dkt. 7-7, Pg ID

283), which was appropriately disregarded by the ALJ as a matter reserved

exclusively to the Commissioner. See Bass, 499 F.3d at 511. The undersigned

 Notably, the ALJ’s assertion that plaintiff’s progress and improvement with 1

conservative treatment relates only to his back conditions. (Dkt. 7-2, Pg ID 49). The ALJ does

not offer any contradicting evidence pertaining to plaintiff’s leg injury, which is the focus of Dr.

Mendelson’s opinion.

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believes that the discounting of Dr. Mendelson’s opinion by the ALJ has not been

adequately justified under the controlling weight test and thus mandates a remand

for a proper evaluation of the treating physician’s opinion under Gayheart, 710

F.3d at 376-77.

2. Other Medical Opinions

An ALJ is required to evaluate every medical opinion of record, and set

forth a valid basis for rejecting any. 20 C.F.R. § 404.1527; see Shelman v.

Heckler, 821 F.2d 316, 321 (6th Cir.1987). The Commissioner may not disregard

opinions of a consulting physician which are favorable to a claimant. See Lashley

v. Sec’y, 708 F.2d 1048, 1054 (6th Cir.1983). Moreover, “in weighing medical

evidence, ‘ALJs must not succumb to the temptation to play doctor and make their

own independent medical findings.’” Allen v. Comm’r of Soc. Sec., 2013 WL

5676254, at *15 (E.D. Mich. Sept. 13, 2013) (citing Simpson v. Comm’r of Soc.

Sec., 344 Fed. Appx. 181, 194 (6th Cir. 2009)). An ALJ may not substitute his [or

her] own medical judgment for that of a treating or examining doctor where the

opinion of that doctor is supported by the medical evidence. See Simpson, 344

Fed. Appx. at 194; see also Bledsoe v. Comm’r of Social Sec., 2011 WL 549861,

at *7 (S.D. Ohio 2011) (“An ALJ is not permitted to substitute her own medical

judgment for that of a treating physician and may not make her own independent

medical findings.”). This is so even though the final responsibility for the RFC

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determination is an issue reserved to the Commissioner. Allen, 2013 WL

5676254, at *15.

Further, an ALJ must “explain how any material inconsistencies or

ambiguities in the evidence in the case record were considered and resolved,”

discuss “why reported symptom-related functional limitations and restrictions can

or cannot reasonably be accepted as consistent with the medical and other

evidence,” “consider and address medical source opinions,” and “[i]f the RFC

assessment conflicts with an opinion from a medical source, ... explain why the

opinion was not adopted.” SSR 96-8p. 

In the case at bar, the ALJ failed to offer any explanation, as required by

SSR 96-8p, as to why she discounted the medical source statement of Dr. LaClair

regarding plaintiff’s postural limitations. Despite giving Dr. LaClair’s opinion

great weight and finding it consistent with plaintiff’s history and the opinion of

Dr. Friedman, the ALJ did not explain or discuss why she did not adopt Dr.

LaClair’s postural limitations, namely, no crawling, kneeling or squatting. 

2

To the extent the ALJ intended to adopt Dr. Friedman’s postural limitations in the RFC, 2

she did so without any explanation or discussion as to why she accepted those limitations over

those of Dr. LaClair, whose opinion was consistent with plaintiff’s treater and to which she gave

great weight. Such explanation is mandated by SSR 96-8p. Moreover, the RFC postural

limitations are not consistent with those given by Dr. Friedman. Dr. Friedman opined that

claimant could not bend, squat, stoop, creep, or crawl repetitively (Dkt. 7-2, Pg ID 49; Dkt. 7-7,

Pg ID 352), whereas the RFC provides that plaintiff “can occasionally balance, kneel, stoop,

crouch, and crawl.” (Dkt. 7-2, Pg ID 45) (emphasis added). Although in other contexts the

difference between any “occasionally” and “not repetitively” might be de minimis, in social

security disability cases the word “occasionally” is a term of art: it means up to one-third of

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Without this analysis, the court is unable to determine how the ALJ fashioned the

less restrictive postural limitations within the RFC. See Berryhill v. Shalala, 4

F.3d 993, 1993 WL 361792 (6th Cir. Sept.16, 1993) (“[A] simple but fundamental

rule of administrative law ... is ... that a reviewing court, in dealing with a

determination or judgment which an administrative agency alone is authorized to

make, must judge the propriety of such action solely by the grounds invoked by

the agency. If those grounds are inadequate or improper, the court is powerless to

affirm the administrative action.”) (internal citations omitted). Moreover, Dr.

LaClair’s postural limitations are consistent with those of Dr. Mendelson, who

opined that plaintiff could not bend, twist or lift over 10lbs. (Dkt. 7-2, Pg ID 49;

Dkt. 7-7, Pg ID 300-301). 

The undersigned believes that the ALJ has failed to engage in the

meaningful review that is necessary to show why she discounted Dr. LaClair’s

postural limitations. SSR 96-8p. Further, the undersigned has reviewed the

citations to the record that the ALJ used to support her RFC and finds no medical

evidence to support the postural limitations imposed therein, thereby suggesting

someone's working time. Hensley v. Astrue, 573 F.3d 263, 265 (6th Cir. 2009) (citing S.S.R. 83-

10 (1983) (“‘Occasionally’ means occurring from very little up to one-third of the time”.). 

Accordingly, under the RFC, plaintiff could be required to kneel, bend or crawl for two hours in

an eight-hour workday, and there is nothing in the RFC (or in the hypothetical posed to the VE)

prohibiting plaintiff from having to kneel, bend or crawl continually or repeatedly for those two

hours, in direct contravention of the limitations imposed on plaintiff by the treating and both

examining physicians alike.

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the ALJ engaged in the prohibited practice of substituting her own medical

judgment for that of a treating or examining doctor. See Simpson, 344 Fed. Appx.

at 194.

For these reasons, in addition to the controlling weight issue outlined above, 

the undersigned finds that remand to re-evaluate the RFC, especially the postural

limitations and their relation to those supplied by the consulting examiners, is

required.

IV. RECOMMENDATION

For the reasons set forth above, the undersigned RECOMMENDS that

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

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

REVERSED AND REMANDED for proceedings consistent with this Report and

Recommendation.

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to file any objections within 14 days of service,

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule

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

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health and

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some

issues but fail to raise others with specificity will not preserve all the objections a

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party might have to this Report and Recommendation. Willis v. Sec’y of Health

and Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of

Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to Local Rule

72.1(d)(2), any objections must be served on this Magistrate Judge.

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

etc. Any objection must recite precisely the provision of this Report and

Recommendation to which it pertains. Not later than 14 days after service of an

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

objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Local Rule 72.1(d). 

The response must specifically address each issue raised in the objections, in the

same order, and labeled as “Response to Objection No. 1,” “Response to Objection

No. 2,” etc. If the Court determines that any objections are without merit, it may

rule without awaiting the response.

Date: August 16, 2016 s/Stephanie Dawkins Davis

Stephanie Dawkins Davis

United States Magistrate Judge

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CERTIFICATE OF SERVICE

I certify that on August 16, 2016, I electronically filed the foregoing paper

with the Clerk of the Court using the ECF system, which will send electronic

notification to all counsel of record.

s/Tammy Hallwood 

Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov

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