UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

BOBBYJOE M. HOFFMEYER,

Case No. 14-11690

Plaintiff,

Paul D. Borman

v. United States District Judge

CAROLYN W. COLVIN, Michael J. Hluchaniuk

ACTING COMMISSIONER United States Magistrate

Judge

SOCIAL SECURITY ADMINISTRATION,

Defendant.

_________________________________________/

OPINION AND ORDER (1) ADOPTING THE MAGISTRATE JUDGE’S REPORT AND

RECOMMENDATION (ECF NO. 18), (2) OVERRULING PLAINTIFF’S OBJECTIONS TO

THE REPORT AND RECOMMENDATION (ECF NO. 20), (3) DENYING PLAINTIFF’S

MOTION FOR SUMMARY JUDGMENT OR REMAND (ECF NO. 15). (4) GRANTING

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 16), AND

(5) AFFIRMING THE DECISION OF THE COMMISSIONER

Before the Court is Magistrate Judge Michael J. Hluchaniuk’s August 17, 2015 Report and

Recommendation. (ECF No. 18.) Plaintiff has filed Objections to the Report and Recommendation 

(ECF No. 20) and Defendant has responded to Plaintiff’s Objections (ECF No. 21). Having

conducted a de novo review, pursuant to 28 U.S.C. § 636(b)(1), of those parts of the Magistrate

Judge’s Report and Recommendation to which specific objections have been filed, the Court

ADOPTS the Magistrate Judge’s Report and Recommendation, OVERRULES Plaintiff’s

Objections, DENIES Plaintiff’s Motion to for Summary Judgment or Remand, GRANTS

Defendant’s Motion for Summary Judgment, and AFFIRMS the findings of the Commissioner.

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I. BACKGROUND

The Magistrate Judge thoroughly summarized the background of this case and the parties’

respective positions in his August 17, 2015 Report and Recommendation and the Court adopts that

summary here. (ECF No. 18, Report and Recommendation 1-23.) 

II. STANDARD OF REVIEW

Where a party has objected to portions of a Magistrate Judge’s Report and Recommendation,

the Court conducts a de novo review of those portions. FED. R. CIV. P. 72(b); Lyons v. Comm’r of

Soc. Sec., 351 F. Supp. 2d 659, 661 (E.D. Mich. 2004). Only those objections that are specific are

entitled to a de novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). 

“The parties have the duty to pinpoint those portions of the magistrate's report that the district court

must specially consider.” Id. (internal quotation marks and citation omitted). A non-specific

objection, or one that merely reiterates arguments previously presented, does not adequately identify

alleged errors on the part of the magistrate judge and results in a duplication of effort on the part of

the district court: “A general objection to the entirety of the magistrate's report has the same effects

as would a failure to object. The district court's attention is not focused on any specific issues for

review, thereby making the initial reference to the magistrate useless.” Howard v. Sec'y of Health

and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Specific objections enable the Court to focus

on the particular issues in contention. An “objection” that does nothing more than disagree with a

magistrate judge's determination, “without explaining the source of the error,” is not considered a

valid objection. Id. Without specific objections, “[t]he functions of the district court are effectively

duplicated as both the magistrate and the district court perform identical tasks. This duplication of

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time and effort wastes judicial resources rather than saving them, and runs contrary to the purposes

of the Magistrates Act.” Id. 

In reviewing the findings of the ALJ, the Court is limited to determining whether those

findings are supported by substantial evidence and made pursuant to proper legal standards. See 42

U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported

by substantial evidence, shall be conclusive . . . .”); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234,

241 (6th Cir. 2007). Substantial evidence is “‘such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.’” Kyle v. Comm’r of Soc. Sec., 609 F.3d 847, 854 (6th

Cir. 2010) (quoting Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601, 604 (6th Cir. 2009)); see also

McGlothin v. Comm’r of Soc. Sec., 299 F. App’x 516, 522 (6th Cir. 2008) (recognizing that

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.”) (internal

quotations omitted). “If the Commissioner’s decision is supported by substantial evidence, we must

defer to that decision, ‘even if there is substantial evidence in the record that would have supported

an opposite conclusion.’” Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007) (quoting

Longworth v. Comm’r of Soc. Sec. Admin., 402 F.3d 591, 595 (6th Cir. 2005)). “It is of course for

the ALJ, and not the reviewing court, to evaluate the credibility of witnesses, including that of the

claimant.” Rogers, 486 F.3d at 247.

III. ANALYSIS

Plaintiff has stated two specific objections to the Magistrate Judge’s Report: (1) the

Magistrate Judge erred in concluding that the ALJ’s finding that Plaintiff has failed to demonstrate

sensory or reflex loss is supported by substantial evidence; and (2) the Magistrate Judge erred by

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improperly evaluating post-surgical evidence. The Court agrees with Magistrate Judge Hluchaniuk

that substantial evidence supports the ALJ’s determination that Plaintiff failed to demonstrate

sensory loss and finds that the Magistrate Judge did not improperly evaluate Plaintiff’s post-surgical

evidence. 

The relevant Listing for disorders of the spine, as pertinent to this disability appeal, provides

as follows:

1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis,

spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral

fracture), resulting in compromise of a nerve root (including the cauda equina) or the

spinal cord. With:

A. Evidence of nerve root compression characterized by

neuro-anatomic distribution of pain, limitation of motion of the spine,

motor loss (atrophy with associated muscle weakness or muscle

weakness) accompanied by sensory or reflex loss and, if there is

involvement of the lower back, positive straight-leg raising test

(sitting and supine).

20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.04(A).

Magistrate Judge Hluchaniuk correctly recognized that “in order to satisfy Listing 1.04(A),

[Plaintiff] was required to admit evidence of sensory or reflex loss” in addition to muscle weakness. 

Norfolk v. Astrue, No. 12-10338, 2013 WL 183938, at *3 (E.D. Mich. Jan. 17, 2013) (citing Burbo

v. Comm’r of Soc. Sec., 877 F. Supp. 2d 526, 549-50 (E.D. Mich. 2012)). Listing 1.04(A) requires

“[e]vidence of nerve root compression characterized by neuro-anatomic distribution of pain,

limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle

weakness) accompanied by sensory or reflex loss . . . .” Burbo, 877 F. Supp. 2d at 550 (noting that

evidence of nerve root compression does not satisfy Listing 1.04(A) where medical examinations

did not document sensory or reflex deficits) (emphasis in original) (alteration added). 

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In her Objections, Plaintiff points to two isolated pieces of evidence that she argues

demonstrate sensory loss sufficient to meet or medically equal Listing 1.04(A). The first is an exam

note by Dr. Schell dated February 6, 2012 (three days prior to Plaintiff’s February 9, 2012 surgery)

indicating that Plaintiff had “mechanical findings of positive straight leg raising with sensory

changes in the L5 distribution.” (ECF No. 10, Transcript of Proceedings of the Social Security

Administration at 419) (hereinafter “Tr. __.”). The second piece of evidence on which Plaintiff

relies is an August 30, 2012 notation by Plaintiff’s physical therapist indicating that Plaintiff “does

have decreased sensation in the left lower extremity in the lateral aspect.” Tr. 380.

Both before and after Dr. Schell’s February 6, 2012 exam note on which Plaintiff relies,

Plaintiff repeatedly was found to have no sensory loss on exam by her neurologist, Dr. Zhao. In

each instance, on May 3, 2010, April 28, 2010, July 10, 2010, December 10, 2010, March 14, 2011,

July 21, 2011, October 17, 2011, January 9, 2012, March 28, 2012, and May 29, 2012, Dr. Zhao

conducted an exam for sensory loss and concluded in his notes: “Sensory exam was normal for

pinprick and temperature of all limbs.” Tr. 426, 428,430, 432, 434. Thus, both prior to and after

Dr. Schell’s February 6, 2012 note indicating “sensory changes,” neither Dr. Zhao nor any other

medical doctor ever noted any sensory changes or loss. 

The only other evidence of a sensory loss finding is a notation in an August 30, 2012 entry

by Plaintiff’s physical therapist noting “decreased sensation in the left lower extremity.” Tr. 380. 

Less than a month following this August 30, 2012 entry, this same therapist’s assessment mentions

no sensory deficits and finds that Plaintiff was “able to tolerate all exercises,” and had “met most

of her goals,” and was “able to ambulate without antalgia,” and was “able to ascend/descend stairs

with a reciprocal gait pattern” and upgraded Plaintiff’s rehabilitation potential to “good.” Tr. 377.

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 There is no subsequent medical opinion confirming this August 30, 2012 notation by Plaintiff’s

physical therapist. Norfolk, 2013 WL 183938, at * 4. Thus, the ALJ’s finding of no sensory loss

was supported by substantial evidence. 

Even assuming that the isolated findings on February 6, 2012 and August 30, 2012 did

indicate possible sensory loss, none of the preceding, intervening or subsequent medical opinions

confirmed such a deficit. Thus, Plaintiff “did not show that [her] symptoms lasted for any

consecutive twelve month period.” Norfolk, 2013 WL 183938, at * 4 (“[E]ven if Dr. Liem’s opinion

established evidence of sensory or reflex loss, such a finding is still insufficient to satisfy Listing

1.04 because [plaintiff] did not show that his symptoms lasted for any consecutive twelve month

period.”).

It is undisputed that to meet Listing 1.04(A), Plaintiff had to satisfy each and every element

of that Listing and therefore had to demonstrate “sensory or reflex loss.” Sullivan v. Zebley, 493

U.S. 521, 530 (1990) (“For a claimant to show that his impairment matches a listing, it must meet

all of the specified medical criteria. An impairment that manifests only some of those criteria, no

matter how severely, does not qualify.”); Blanton v. Soc. Sec. Admin, 118 F. App’x 3, 6 (6th Cir.

2004) (“An impairment meets a listed impairment only when it manifests the specific findings

described in the set of medical criteria for that particular listed impairment.”). Likewise, it is

undisputed that to equal Listing 1.04(A), Plaintiff had to present medical evidence equal in severity

and duration “to all the criteria” of the relevant Listing, including “sensory or reflex loss.” Daniels

v. Comm’r of Soc. Sec., 70 F. App’x 868, 874 (6th Cir. 2003) (finding that to equal a Listing, “a

claimant must present medical findings equal in severity to all the criteria for the one most similar

listed impairment”) (emphasis in original) (internal quotation marks and citation omitted). 

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The Court finds that Magistrate Judge Hluchaniuk correctly concluded that substantial

evidence supports the ALJ’s decision that Plaintiff failed to present such evidence here. Even

crediting the two isolated notations regarding sensory loss, there was substantial evidence in the

record to support the ALJ’s conclusion and, in any event, there was insufficient evidence in the

record to support a finding that any such sensory loss accompanied any other medically documented

1.04(A) conditions for a period of at least 12 months. 

IV. CONCLUSION

The Court concludes that Magistrate Judge Hluchaniuk correctly found that the ALJ’s

conclusion that Plaintiff is not disabled is supported by substantial evidence. For the foregoing

reasons, the Court:

(1) ADOPTS Magistrate Judge Hluchaniuk’s Report and Recommendation (ECF No. 18); 

(2) OVERRULES Plaintiff’s Objections (ECF No. 20);

(3) DENIES Plaintiff’s Motion for Summary Judgment or Remand (ECF No. 15);

(4) GRANTS the Defendant’s Motion for Summary Judgment (ECF No. 16); and

(5) AFFIRMS the decision of the Commissioner.

IT IS SO ORDERED.

s/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: November 4, 2015

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record

herein by electronic means or first class U.S. mail on November 4, 2015.

s/Deborah Tofil 

Case Manager

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