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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

JAMIE BUDZINSKI, 

Plaintiff, CIVIL ACTION NO. 14-CV-13705 

vs. 

MAGISTRATE JUDGE MONA K. MAJZOUB 

COMMISSIONER OF 

SOCIAL SECURITY, 

Defendant. 

___________________________________________/ 

OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY 

JUDGMENT [20] AND GRANTING DEFENDANT’S MOTION FOR SUMMARY 

JUDGMENT [22] 

Plaintiff Jamie Budzinski seeks judicial review of Defendant the Commissioner of Society 

Security’s determination that he is not entitled to Social Security benefits for his physical 

impairments under 42 U.S.C. § 405(g). (Docket no. 1.) Before the Court are Plaintiff’s Motion 

for Summary Judgment (docket no. 20) and Defendant’s Motion for Summary Judgment (docket 

no. 22). With consent of the Parties, this case has been referred to the undersigned for final 

judgment in accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. (Docket no. 19.) The 

Court has reviewed the pleadings, dispenses with a hearing pursuant to E.D. Mich. L.R. 7.1(f)(2), 

and issues this Opinion and Order. 

I. Procedural History 

Plaintiff initially filed an application for Disability Insurance Benefits on April 9, 2007, 

alleging that he had been disabled since May 30, 1987, due to degenerative disc disease. (See TR 

34, 36.) The Social Security Administration denied benefits, and Plaintiff requested a de novo

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hearing, which was held on October 5, 2009, before Administrative Law Judge (ALJ) Michael 

Wilenkin, who subsequently found that Plaintiff was not entitled to benefits because he was 

capable of performing a significant number of jobs in the national economy. (TR 34-39.) The 

Appeals Council declined to review the ALJ’s decision, and Plaintiff commenced an action for 

judicial review in this Court. (See TR 386-410.) On March 1, 2012, Magistrate Judge Michael 

Hluchaniuk entered a Report and Recommendation, recommending that the Court remand this 

matter for “further vocational evidence.” (Id.) 

Judge David M. Lawson adopted this recommendation, and on remand, the matter was 

resubmitted to ALJ Wilenkin for further consideration. (See TR 325.) The ALJ held a second 

hearing in this matter on March 14, 2013, after which the ALJ again determined that Plaintiff was 

not entitled to benefits because he was capable of performing a significant number of jobs in the 

national economy. (TR 325-331. The Appeals Council again declined to review the ALJ’s 

decision, and Plaintiff commenced the instant action for judicial review. After some procedural 

abnormalities related to Plaintiff’s prior counsel (see docket nos. 11, 12, 13, 16, 17, and 21; see 

also Administrative Order Nos. 15-AO-033 and 15-AO-045), the parties then filed their instant 

Motions. 

II. Plaintiff’s Testimony and the Medical Evidence of Record

Plaintiff (docket no. 20 at 11-12), Defendant (docket no. 22 at 10-11), and the ALJ (TR 

329) each set out a factual recitation with regard to Plaintiff’s hearing testimony. Likewise, 

Defendant (docket no. 22 at 7-10) and the ALJ (TR 329-30) each discuss the relevant portions of 

Plaintiff’s medical record. Having conducted an independent review of Plaintiff’s medical record 

and the hearing transcript, the undersigned finds that there are no material inconsistencies between 

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these recitations of the record. Therefore, the Court will incorporate these factual recitations by 

reference and will include any comments and citations as necessary throughout this Opinion and 

Order. 

III. Administrative Law Judge’s Determination

 The ALJ found that Plaintiff met the insured status requirements of the act “at all times 

pertinent through September 30, 1993 but not thereafter.” (TR 327.) He found that Plaintiff had 

not engaged in substantial gainful activity from May 30, 1987, through his date last insured; that 

claimant suffered from severe degenerative disc disease of the lumbar spine with disc herniation at 

L4-5; and that Plaintiff’s impairments did not meet or equal those listed in the Listing of 

Impairments. (TR 327-28.) The ALJ then found that Plaintiff’s allegations regarding the extent 

of his symptoms were not wholly credible and that Plaintiff had the Residual Functional Capacity 

to perform unskilled light work except he was “restricted to limited twisting of less than 1/3 of a 

day.”1

 (TR 328-29.) 

The ALJ then determined, in reliance on the VE’s testimony, that Plaintiff was capable of 

performing work as an assembler, an inspector, or a packager. (TR 330-31.) The ALJ noted that 

there “would have been approximately 18,000 such jobs existing in the Metropolitan Detroit Area 

and roughly 36,000 such jobs existing in the State in 1993.” (TR 331.) The ALJ found that 

Plaintiff was not disabled under the Social Security Act from May 30, 1987, through September 

30, 1993. (TR 331.) 

 

1 This RFC finding is the same as the ALJ’s initial RFC finding in 2009, at which time he 

found that Plaintiff had the RFC to “perform light work as defined in 20 CFR 404.1567(b) except 

See Sr. Sperl.” (TR 36.) Dr. Sperl is Plaintiff’s treating physician; the ALJ adopted Dr. Sperl’s 

findings from the 1990s, noting that “he only restricted the claimant to limited bending and 

twisting and lifting no more than 25 pounds.” (TR 37.)

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IV. Vocational Expert Testimony 

 In 2009, the ALJ initially held that “if the claimant had the residual functional capacity to 

perform the full range of light work, . . . a finding of ‘not disabled’ would be directed by 

Medical-Vocational Rule 202.17.” (TR 38.) He then noted that “the additional limitations had 

little or no effect on the occupational base of unskilled light work.” (TR 38.) Thus, the ALJ 

held, Plaintiff was “not disabled.” As noted, though, this matter was remanded for further 

vocational evidence regarding Plaintiff’s limitations because the ALJ’s discussion “simply did not 

expressly address how his finding that plaintiff had a limited ability to twist affected the 

occupational base for light work.” (TR 404.) 

 On remand, the ALJ first asked the VE whether she was familiar with the usual, customary 

demands of work at the light exertional level. The VE testified that she was. He then asked the 

VE whether she could discuss what role twisting of the torso would play in the performance of 

work at the light exertional level. The VE testified that it would be difficult without referring to 

any particular type of work because “all the jobs are different.” (TR 348.) 

 The ALJ then asked the VE to assume that by “limited twisting,” he meant “that perhaps 

that means less than a third of the day,” and he asked her “what, if any, impact would that have on 

the performance of . . . light unskilled work.” (TR 348-49.) The VE testified: 

In my opinion that would probably limit it to work that’s normally performed at a 

bench, like a light industrial work, where you’re not moving around a lot for the 

nature of your job. You’re standing, but you’re basically working with something 

that’s in front of you. 

(TR 349.) She noted that “[e]xamples at the light level would be like an assembler, packager, or 

inspector, where everything’s on a table in front of you.” (TR 349.) 

 Next, the ALJ asked the VE to estimate the number of such jobs that would have existed in 

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the State of Michigan in September of 1993. The VE testified that it “would obviously clearly be 

an estimate,” but today, there are 3,000 assembler positions, 2,000 inspector positions, and 2,000 

packager positions in the Detroit Metropolitan Area, with approximately 6,000, 4,000, and 3,000 

such jobs (respectively) statewide. (TR 349.) The ALJ follow this statement by noting, “So 

roughly 12,000 today in the metropolitan Detroit Area.” (TR 349.) The VE answered “Yes,” 

and then testified that there would have been at least 50% more of the same jobs in 1993. (TR 

350.) The ALJ then commented, “Probably somewhere in the neighborhood of 18.000 in the 

metropolitan area and 36,000 in the state of Michigan,” to which the VE responded “Yes.” (TR 

350.) 

 Plaintiff’s counsel then questioned the VE, asking whether any jobs existed for an 

individual who had to be absent from work two or more days per month or who “was required to 

have a sit, stand, or lie down option.” The VE testified that there would be no such jobs. (TR 

350-51.) 

V. Law and Analysis 

A. Standard of Review

 Pursuant to 42 U.S.C. § 405(g), this Court has jurisdiction to review the Commissioner’s 

final decisions. Judicial review of the Commissioner’s decisions is limited to determining 

whether his findings are supported by substantial evidence and whether he employed the proper 

legal standards. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Walters v. Comm’r, 127 

F.3d 525, 528 (6th Cir. 1997). Substantial evidence is more than a scintilla but less than a 

preponderance; it is “‘such relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion.’” Richardson, 402 U.S. at 401 (quoting Consolidated Edison Co. v. NLRB, 

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305 U.S. 197, 229 (1938)); Walters, 127 F.3d at 528. It is not the function of this Court to try 

cases de novo, resolve conflicts in the evidence, or decide questions of credibility. See Brainard 

v. Sec’y of Health and Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v. Heckler, 745 

F.2d 383, 387 (6th Cir. 1984). 

 In determining the existence of substantial evidence, the court must examine the 

administrative record as a whole. See Kirk v. Sec’y of Health and Human Servs., 667 F.2d 524, 

536 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983). If the Commissioner’s decision is 

supported by substantial evidence, it must be affirmed, even if the reviewing court would decide 

the matter differently, Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983), and even if 

substantial evidence also supports the opposite conclusion. See Her v. Comm’r, 203 F.3d 388, 

389-90 (6th Cir. 1999); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc) (noting that 

the substantial evidence standard “presupposes that there is a zone of choice within which the 

decisionmakers can go either way, without interference by the courts”). 

B. Framework for Social Security Determinations

 Plaintiff’s Social Security disability determination was made in accordance with a 

five-step sequential analysis. In the first four steps, Plaintiff was required to show that: 

(1) Plaintiff was not presently engaged in substantial gainful employment; and 

(2) Plaintiff suffered from a severe impairment; and 

(3) the impairment met or was medically equal to a “listed impairment;” or 

(4) Plaintiff did not have the residual functional capacity (RFC) to perform 

relevant past work. 

See 20 C.F.R. § 404.1520(a)-(f). If Plaintiff’s impairments prevented Plaintiff from doing past 

work, the Commissioner, at step five, would consider Plaintiff’s RFC, age, education, and past 

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work experience to determine if Plaintiff could perform other work. If not, Plaintiff would be 

deemed disabled. See id. at § 404.1520(g). The Commissioner has the burden of proof only on 

“the fifth step, proving that there is work available in the economy that the claimant can perform.” 

Her, 203 F.3d at 391. To meet this burden, the Commissioner must make a finding “supported by 

substantial evidence that [the claimant] has the vocational qualifications to perform specific jobs.” 

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

“substantial evidence” may be in the form of vocational expert testimony in response to a 

hypothetical question, “but only ‘if the question accurately portrays [the claimant’s] individual 

physical and mental impairments.’” Id. (citations omitted). 

C. Analysis

 The Social Security Act authorizes “two types of remand: (1) a post judgment remand in 

conjunction with a decision affirming, modifying, or reversing a decision of the [Commissioner] (a 

sentence-four remand); and (2) a pre-judgment remand for consideration of new and material 

evidence that for good cause was not previously presented to the [Commissioner] (a sentence-six 

remand).” Faucher v. Sec’y of Health and Human Servs., 17 F.3d 171, 174 (6th Cir. 1994) (citing 

42 U.S.C. § 405(g)). Under a sentence-four remand, the Court has the authority to “enter upon the 

pleadings and transcript of the record, a judgment affirming, denying, or reversing the decision of 

the [Commissioner], with or without remanding the cause for a hearing. 42 U.S.C. § 405(g). 

Where there is insufficient support for the ALJ’s findings, “the appropriate remedy is reversal and 

a sentence-four remand for further consideration.” Morgan v. Astrue, 10-207, 2011 WL 

2292305, at *8 (E.D.Ky. June 8, 2011) (citing Faucher, 17 F.3d at 174). Plaintiff argues that this 

matter should be remanded because (1) the ALJ erred when he failed to ask the VE for DOT 

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numbers for the jobs set forth in her testimony; (2) the ALJ erred when he failed to question the VE 

regarding any possible conflicts between her testimony and the DOT; and (3) the ALJ did not 

properly assess Plaintiff’s credibility. (Docket no. 20.) 

1. The ALJ’s Failure to Request DOT Numbers and Question the VE 

Regarding Possible Conflicts

Plaintiff primarily takes issue with the ALJ’s questioning of the VE during his March 14, 

2013 hearing. Specifically, Plaintiff asserts that by failing to ask the VE for DOT numbers related 

to the jobs enumerating during her testimony, the ALJ implicitly failed in his duty to determine if 

the VE’s testimony was consistent with the DOT in accordance with SSR 00-4p. Moreover, 

Plaintiff contends, the ALJ exacerbated this problem when he failed to include any DOT numbers 

in his written decision and when he failed to ask the VE whether her testimony was consistent with 

the DOT. (Docket no. 20 at 12-15.) 

Defendant argues that a lack of DOT codes in the VE’s testimony is harmless error where 

the claimant’s attorney does not raise the issue at the hearing and where the claimant has failed to 

specify any prejudice. (Docket no. 22 at 14-15.) Defendant then lists a myriad of possible DOT 

codes associated with jobs that could have fallen under the jobs identified by the VE. (Id. at 15.) 

Defendant further asserts that Plaintiff’s argument fails because his attorney did not question the 

VE with regard to the source of her information and because the VE may rely on the DOT and the 

VE’s own experience when testifying. (Id. at 15-17.) 

“‘[N]othing in SSR 00-4p places an affirmative duty on the ALJ to conduct an independent 

investigation into the testimony of witnesses to determine if they are correct.’” Wilson v. 

Comm’r, No. 10-13828, 2011 WL2607098, *6 (E.D. Mich. July 1, 2011) (Cohn, J.) (quoting 

Martin v. Comm’r, 170 F. App’x 369, 374 (6th Cir. 2006)). And as Defendant argues, even where 

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an inconsistency may exist and where there is a failure to provide DOT codes, “the ALJ [is] within 

his rights to rely on the VE’s testimony because the Social Security regulations do not require the 

VE to rely on classifications in the DOT.” Wilson, at *6 (citing Conn v. Sec’y of HHS, 51 F.3d 

607, 610 (6th Cir. 1995)). That is, where inconsistencies may exist, if Plaintiff’s attorney has a 

full and fair opportunity to cross examine the VE and does not do so, the ALJ is not required to 

assume that a conflict may exist. 

Nevertheless, the ALJ’s failure to question the VE, on the record, with regard to the source 

of her information gives the Court pause. SSR 00-4p explicitly holds that “[a]t the hearings level, 

as part of the adjudicator’s duty to fully develop the record, the adjudicator will inquire, on the 

record, as to whether or not there is such consistency.” SSR 00-4p. Moreover, the ALJ 

compounded his failure to question the VE with regard to the source of her testimony by stating the 

following in his written decision: 

Pursuant to SSR 00-4p, the vocational expert’s testimony is consistent with the 

information contained in the Dictionary of Occupational Titles (DOT), with the 

exception of testimony regarding the number of jobs existing in 1993. Testimony 

regarding same is based on the vocational expert’s experience. 

(TR 331.) The VE made no such statement. Therefore, the Court could remand this matter to 

determine whether the VE’s testimony was consistent with the DOT. 

The Court recognizes that “[i]t is an elemental principle of administrative law that agencies 

are bound to follow their own regulations.” Wilson, 378 F.3d at 545; see also 5 U.S.C. § 706(2)(D) 

(“The reviewing court shall . . . hold unlawful and set aside agency action . . . found to be . . . 

without observance of procedure required by law.”) But the decisions of administrative agencies 

are always reviewed for harmless error. Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th 

Cir.2001). “No principle of administrative law or common sense requires [a reviewing court] to 

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remand a case in quest of a perfect opinion unless there is reason to believe that the remand might 

lead to a different result.” Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir.1989). And “[w]hen 

‘remand would be an idle and useless formality,’ courts are not required ‘to convert judicial review 

of agency action into a ping-pong game.’” Kobetic v. Commissioner of Social Security, 114 Fed. 

Appx. 171, 173 (6th Cir.2004), quoting NLRB v. Wyman–Gordon Co., 394 U.S. 759, 766 n. 6 

(1969). As Defendant points out, Plaintiff’s argument relies on the ALJ’s failure to inquire into 

the source of the VE’s testimony, not on any actual inconsistency with the DOT. To the contrary, 

Defendants point to a non-exclusive list of 14 light- and sedentary-level jobs that would be 

consistent with the VE’s testimony and Plaintiff’s work capabilities. Remand in this matter 

would amount to nothing more than a useless formality. Accordingly, the Court will deny 

Plaintiff’s Motion with regard to the VE’s testimony. 

2. The ALJ’s Credibility Determination

As a secondary position, Plaintiff argues that the ALJ failed to properly assess his 

credibility. (Docket no. 20 at 15-19.) In support of this argument, Plaintiff points to medical 

evidence supporting his subjective complaints. Defendant argues that the ALJ properly 

considered Plaintiff’s credibility and that Plaintiff’s ability to point to evidence in support of his 

complaints is inapposite. (Docket no. 22 at 17-21.) The Court agrees. 

 “An ALJ’s findings based on the credibility of the applicant are to be accorded great 

weight and deference, particularly since an ALJ is charged with the duty of observing a witness’s 

demeanor and credibility.” Walters v. Commissioner, 127 F.3d 525, 531 (6th Cir. 1997). But 

credibility assessments are not insulated from judicial review. Despite the deference that is due, 

such a determination must nevertheless be supported by substantial evidence. Id. An ALJ’s 

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credibility determination must contain “specific reasons . . . supported by the evidence in the case 

record, and must be sufficiently specific to make clear to the individual and to any subsequent 

reviewers the weight the adjudicator gave to the individual’s statements and the reasons for that 

weight.” SSR 96–7p. “It is not enough to make a conclusory statement that ‘the individual’s 

allegations have been considered’ or that ‘the allegations are (or are not) credible.’” Id. “The 

adjudicator may find all, only some, or none of an individual’s allegations to be credible” and may 

also find the statements credible to a certain degree. See id.

Further, to the extent that the ALJ found that Plaintiff’s statements are not substantiated by 

the objective medical evidence in the record, the Regulations explicitly provide that “we will not 

reject your statements about the intensity and persistence of your pain or other symptoms or about 

the effect your symptoms have on your ability to work . . . solely because the available objective 

medical evidence does not substantiate your statements.” 20 C.F.R. § 416.929(c)(2). The ALJ 

must consider: (1) the claimant’s daily activities, (2) the location, duration, frequency, and 

intensity of claimant’s pain, (3) precipitating and aggravating factors; (4) the type, dosage, 

effectiveness, and side effects of any medication taken to alleviate pain or other symptoms, (5) 

treatment, other than medication, for pain relief, (6) any measures used to relieve the pain, and (7) 

functional limitations and restrictions due to the pain. See 20 C.F.R. § 416.929(c)(3); see also 

Felisky v. Bowen, 35 F.3d 1027, 1039-40 (6th Cir. 1994) (applying these factors). 

The ALJ found that Plaintiff was not entirely credible, primarily based on a lack of medical 

evidence supporting his allegations. The ALJ noted that all of the records provided by Plaintiff 

are from after his date last insured and that Plaintiff’s primary physician, Dr. M.G. Sperl, only 

restricted Plaintiff to “limited bending and twisting an lifting no more than 25 pounds,” with a 

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“passing reference to a so-called sit/stand option.” (TR 37.) Likewise, Plaintiff’s argument 

relies entirely on medical records that Plaintiff contends support his complaints. (Docket no. 20 

at 16-19.) But even if the Court would find differently, the substantial evidence standard 

“presupposes that there is a zone of choice within which the decisionmakers can go either way, 

without interference by the courts.” Mullen, 800 F.2d at 545. Plaintiff has not persuaded the 

Court that such interference is appropriate here.2

Accordingly, IT IS ORDERED, that Plaintiff's motion for summary judgment [20] is 

DENIED and that Defendant’s motion for summary judgment [22] is GRANTED. 

Dated: February 12, 2016 s/ Mona K. Majzoub 

 MONA K. MAJZOUB 

 UNITED STATES MAGISTRATE JUDGE 

 

PROOF OF SERVICE 

I hereby certify that a copy of this Order was served upon Counsel of Record on this date. 

Dated: February 12, 2016 s/ Lisa C. Bartlett 

 Case Manager 

 

2 Addtionally, Plaintiff’s substantive positions with regard to the ALJ’s RFC 

determination, particularly with regard to Dr. Sperl’s opinion, were addressed by Magistrate Judge 

Hluchainuk and Judge Lawson when this matter was before the Court in 2012. (TR 405.) 

Although now characterized as a credibility argument, the Court finds no reason to reach a 

different conclusion. 

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