UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MARK DIAMOND,

Plaintiff,

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

_____________________________________/

Case No. 14-14341

John Corbett O’Meara

United States District Judge

Michael Hluchaniuk

United States Magistrate Judge

REPORT AND RECOMMENDATION

CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkts. 16, 18)

I. PROCEDURAL HISTORY

A. Proceedings in this Court

On November 12, 2014, plaintiff filed the instant suit seeking judicial

review of the Commissioner’s decision disallowing benefits. (Dkt. 1). Pursuant to

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

O’Meara referred this matter to the undersigned for the purpose of reviewing the

Commissioner’s decision denying plaintiff’s claims. (Dkt. 3). This matter is

before the Court on cross-motions for summary judgment. (Dkts. 16, 18). The

cross-motions are now ready for report and recommendation.

B. Administrative Proceedings

On July 6, 2012, plaintiff filed the instant claim for a period of disability

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and disability insurance benefits, alleging disability beginning August 12, 2011. 

The Commissioner initially denied plaintiff’s application on October 16, 2012. 

(Tr. 44-45). Thereafter, plaintiff requested an administrative hearing, and on June

12, 2013, he appeared with counsel before Administrative Law Judge (“ALJ”)

Kim S. Nagle, who considered his case de novo. (Tr. 46-91). In a June 27, 2013

decision, the ALJ determined that plaintiff was not disabled within the meaning of

the Social Security Act. (Tr. 18-44). The ALJ’s decision became the final

decision of the Commissioner on September 12, 2014, when the Social Security

Administration’s Appeals Council denied plaintiff’s request for review. (Tr. 1-6). 

Plaintiff filed this suit on November 12, 2014. (Dkt. 1). 

For the reasons set forth below, the undersigned concludes that substantial

evidence supports the ALJ’s conclusion that there are jobs that exist in significant

numbers in the national economy that the plaintiff can perform. The Court

therefore RECOMMENDS that Plaintiff’s Motion for Summary Judgment (Dkt.

16) be DENIED, that Defendant’s Motion for Summary Judgment (Dkt. 18) be

GRANTED.

II. FACTUAL BACKGROUND

A. ALJ Findings

Plaintiff has past relevant work as a customer complaint clerk, account

coordinator, collector, sales representative, sales clerk, and as a security guard.

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(Tr. 38-39). The ALJ applied the five-step disability analysis to plaintiff’s claims

and found at step one that plaintiff had not engaged in any substantial gainful

activity since August 12, 2011 (the alleged onset date). (Tr. 23). At step two, the

ALJ found that plaintiff had the following severe impairments: depression and

asthma. (Tr. 24.) At step three, the ALJ found that plaintiff did not have an

impairment or combination of impairments that met or equaled one of the listings

in the regulations. (Id.)

The ALJ determined that plaintiff had the residual functional capacity

(RFC) to perform:

light work as defined in 20 CFR 404.1567(b) involving

occasional postural activities including stooping,

kneeling, crouching, crawling and climbing. He can

tolerate only occasional exposure to outside atmospheric

conditions (weather), however, he cannot withstand

temperature extremes, and he must avoid all exposure to

pulmonary irritants, such as fumes, odors, dust, and

gases. The claimant is restricted to simple, routine,

repetitive work tasks in low stress jobs, defined as work

requiring only occasional decision making, and

occasional changes in the work setting. Socially, the

claimant can only have occasional interaction with

others, including supervisors, co-workers and the general

public.

(Tr. 27). At step four, the ALJ determined that plaintiff was unable to perform any

past relevant work as a customer complaint clerk, account coordinator, collector,

sales representative, sales clerk, or as a security guard. (Tr. 38-39). Considering

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plaintiff’s age, education, work experience, and RFC, the ALJ determined that

jobs existed in significant numbers in the national economy that the plaintiff could

perform. (Tr. 39-40). As such, the ALJ concluded that plaintiff had not been

under a disability from August 11, 2011, through the date of his decision. (Tr. 40).

B. Plaintiff’s Claims of Error

1. The ALJ erred in concluding that he was capable of performing

substantial gainful activity.

Plaintiff argues that the ALJ committed error at Step Five of the sequential

evaluation when she determined that plaintiff had the RFC to perform jobs that

existed in the national economy including, cleaner/housekeeper, mail clerk, and

electronics worker. (Tr. 39-40). First, plaintiff notes that at Step Four, the ALJ

concluded that plaintiff “must avoid all exposure to pulmonary irritants, such as

fumes, odors, dusts and gases . . .” (Tr. 27). This is consistent with the State’s

physical consulting examiner’s, Dr. Florence Thomas, finding that plaintiff

“should avoid exposure to dusts, fumes, extremes of temperature, and pulmonary

irritants as well as gases, pollen and mold.” (Tr. 300). Plaintiff argues that the

ALJ presented a hypothetical to the vocational expert (“VE”) which indicated that

the claimant “should avoid all exposure to pulmonary irritants such as fumes,

odors, dusts and gases.” (Tr. 86). In response to this hypothetical, the VE

indicated that cashier II, housekeeping, and mail clerk (not in the post office),

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were available. Plaintiff argues, however, that the use of cleaning products would

preclude the job of cleaning/housekeeping as “irritants” were used in this job

category. Plaintiff also contends that according to the DOT, an “electronics

worker” job would have “occasional” exposure to toxic, caustic chemicals, which

was also at odds with the RFC determination. In sum, plaintiff claims that the

main flaw in the ALJ’s hypothetical is that it is non-specific, namely it does not

describe what “pulmonary irritants” plaintiff would be affected by. The only

description given is “such fumes, odors, dusts and gases.” 

Plaintiff cites Nichols v. Comm’r, 2010 WL 5178069, at *3 (W.D. Mich.

Dec. 15, 2010), where a vocational expert asked the ALJ to clarify what was

meant by limitations, “noting that there was no such place (‘you’d be in a

bubble’).” In essence, plaintiff claims, with the hypothetical given, no jobs would

exist. Plaintiff argues that he is plagued by asthma and sets forth a list of specific

allergens, irritants, exercise, and smoke that could, according to the American

Academy of Allergy, Asthma, and Immunology, exacerbate his condition. (Dkt.

16, at Pg ID 449-451). Thus, according to plaintiff, even in the position of mail

clerk, a worker could come across “strong odors and sprays of perfume ...” and/or

smoke from other employees. Also, there would be no guarantee that the

workplace would be free from mold, dust, gases, fumes, vapors, second-hand

smoke, cleaning chemicals, scented personal care products, pests (dust mites,

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cockroaches, mice), stress. Because of the lack of specificity of what would be an

irritant to a particular individual, the Nichols court remanded the case to the

Commissioner for a reevaluation of the environmental limitations applicable to

plaintiff. 

Plaintiff here argues that if the ALJ wants to rely on the testimony of the VE

to carry out her burden of proving that a substantial number of jobs exist that

plaintiff can perform, the VE must be given a hypothetical that accurately

describes the plaintiff. Because the hypothetical here did not accurately describe

plaintiff, the ALJ lacked substantial evidence to conclude that plaintiff could

perform the jobs outlined by the VE. 

Plaintiff asks the court to reverse the Commissioner’s decision denying his

disability insurance benefits, or, in the alternative, for a Sentence Four remand.

C. Commissioner’s Motion for Summary Judgment

The Commissioner argues that the ALJ did not err when she concluded that

plaintiff was not disabled because he could perform jobs existing in significant

numbers in the national economy. (Dkt. 18, at Pg ID 471-479). The

Commissioner contends that plaintiff’s sole challenge to the ALJ’s conclusions –

that the jobs identified by the vocational expert do not fully accommodate his

asthma-related environmental limitations – is unavailing. (Id.)

First, the Commissioner argues that it is hardly apparent that the vocational

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expert did not understand the ALJ’s second hypothetical question. In response to

the ALJ’s first hypothetical, the VE identified three jobs (cashier, cleaner, and

mail clerk), which provided for frequent exposure to pulmonary irritants, together

with the limitations ultimately included in the RFC assessment (except for social

limitations). (Tr. 85-86). When the ALJ posed the second hypothetical, which

instead provided for no exposure to pulmonary irritants, as well as a requirement

to avoid temperature extremes, and more than occasional exposure to weather, but

was otherwise identical to the first hypothetical, the VE immediately testified that

the same jobs would remain available, in the same numbers. (Tr. 86). The

Commissioner argues that there is no place in the transcript which indicates that

the VE misunderstood or underestimated these additional limitations. The VE

changed her testimony only when plaintiff’s counsel added a limitation to

occasional social interaction, when the VE eliminated the cashier job. (Tr. 87-88). 

Additionally, before identifying a third job (electronics worker), the VE asked for

clarification from the ALJ, seeking confirmation that the job could not involve

exposure to heat or cold. (Tr. 88). That the VE did not also ask the ALJ to repeat

all of the other limitations from the second hypothetical does not necessarily imply

that she disregarded them, as plaintiff suggests. Moreover, the Commissioner

contends that if plaintiff believed that the VE misunderstood the extent of the

limitations, he could have sought clarification at the hearing, but he failed to do

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so.

Second, the Commissioner argues that the ALJ was not required to further

specify what pulmonary irritants plaintiff needed to avoid, beyond what was

provided: “fumes, odors, dusts, and gases.” (Tr. 86). Indeed, plaintiff

acknowledges that the ALJ’s environmental limitations are similar to those

expressed by Dr. Thomas, except that Dr. Thomas also recommended avoiding

exposure to smoke, grass, pollen, and mold. (Tr. 300). And, plaintiff has not

pointed to any evidence that the jobs identified by the VE would expose plaintiff

to any of these additional irritants. 

Moreover, the Commissioner argues that plaintiff’s attempt to equate this

case with Nichols v. Comm’r, 2010 WL 5178069 (W.D. Mich. Nov. 18, 2010), is

unavailing. First, the RFC assessment in Nichols was not supported by substantial

evidence. There, a state agency physician opined that the claimant should avoid

all exposure to pulmonary irritants, whereas the ALJ concluded that the claimant

could tolerate moderate levels, without providing any reasoning for adopting the

lesser limitation. Id. at *3-4. Here, by contrast, the Commissioner argues that the

ALJ adopted environmental limitations consistent with Dr. Thomas’s opinion, and

even more restrictive than those identified by state agency physician, Dr.

Mahmood. (Tr. 37, 201, 300). Moreover, the VE in Nichols testified that no jobs

would be available to an individual who had to avoid exposure to all irritants,

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stating that such a person would “be in a bubble,” and the ALJ disregarded this

testimony without explanation. In this case, the VE offered no such testimony. 

Further, the VE in Nichols identified a total of only 7,000 available jobs, and the

court expressed concern that “different environmental restrictions could erode this

job base to the point where there is no substantial gainful employment that [the

claimant] could perform in the national economy.” Id. at *4. In this case,

however, the VE identified a total of 45,000 jobs statewide and over one million

jobs nationally. (Tr. 86, 88). 

Plaintiff’s final challenge, that the jobs identified by the VE are inconsistent

with his RFC, is also unavailing. Specifically Ruling 00-4p provides that the

occupational evidence provided by a VE should “generally” be consistent with the

Dictionary of Occupational Titles (DOT), that the ALJ should confirm that the

testimony is consistent, and that when there is an “apparent unresolved conflict”

between the VE’s testimony and the DOT, the ALJ must elicit a reasonable

explanation for the conflict before relying on the VE’s testimony. SSR 00-4p,

2000 WL 1898704, at *2 (Dec. 4, 2000). The Commissioner contends that

because this responsibility only arises when a conflict is “apparent,” an ALJ is not

required to independently confirm that a VE’s testimony is consistent with the

DOT when a claimant fails to bring a potential discrepancy to the ALJ’s attention. 

See Martin v. Comm’r of Soc. Sec., 170 F. App’x 369, 374 (6th Cir. 2006). 

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The Commissioner contends that with respect to the specific jobs identified,

plaintiff fails to demonstrate any apparent conflict that the ALJ failed to resolve,

and any conflict plaintiff attempts to suggest, at most, would result in harmless

error. With respect to the cleaner/housekeeper job, the Commissioner argues that

the DOT job description does not even reference cleaning products, and it further

indicates that toxic chemicals and other environmental conditions are not present. 

DOT #323.687-014, 1991 WL 672783. As such, the Commissioner avers that

plaintiff has established no error. 

The Commissioner also says that plaintiff failed to establish any conflict

between the VE’s testimony regarding the mail clerk position and the DOT. At

most, the plaintiff speculates that “even in a mail clerk position, the worker can

come across ‘strong odors and sprays such as perfumes’ and/or smoke from other

employees,” and that “[t]here would be no guarantee that the work place would

not have ‘mold’ or ‘house dust or dust mites.’” The Commissioner indicates that

plaintiff cites a list of potential asthma triggers (Pl.’s Br. 15), however, this list

does not appear in the record of the case. Moreover, the DOT’s summary of this

job indicates that toxic caustic chemicals and other environmental conditions are

not present. DOT #209.687-206, 1991 WL 671813. Again, there is no error.

Finally, the Commissioner argues that even though there does appear to be

conflict between the DOT job description and the VE’s testimony in the

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electronics worker job, plaintiff’s counsel never alerted the ALJ to this

discrepancy, and in any event, this one inconsistency is not fatal to the ALJ’s

conclusion. Any error relying on this job was harmless because even if all

electronics jobs were excluded (16,000 statewide, and 229,000 nationally), the

total number of jobs in the cleaner and mail clerk positions would still constitute a

significant number of jobs, both statewide and nationally (22,5000 statewide and

over one million nationally). See Nejat v. Comm’r of Soc. Sec., 359 F. App’x 574,

579 (6th Cir. 2009) (“Even if we agree that the ALJ’s finding included jobs

precluded by [claimant’s] exertional and non-exertional limitations, the ALJ’s

count of 2000 jobs [for one position] available in the third category withstands

[claimant’s] challenge.”); accord Martin v. Comm’r of Soc. Sec., 170 F. App’x

369, 375 (6th Cir. 2006) (870 jobs locally is significant); Hall v. Bowen, 837 F.2d

272, 273, 275–76 (6th Cir. 1988) (same; 1,350 jobs locally); see also Bradley v.

Comm’r of Soc. Sec., 40 F. App’x 972, 972 (6th Cir. 2002) (170,000 jobs

nationally is significant); Nash v. Sec’y of Health & Human Servs., No. 94-5376,

1995 WL 363381, at *3 (6th Cir. June 15, 1995) (same; 70,000 jobs nationally).

Accordingly, the Commissioner contends that plaintiff failed to establish

any reversible error the ALJ committed by relying on the VE’s testimony, or in her

ultimate conclusion that plaintiff could perform jobs existing in significant

numbers national economy.

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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

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, 127 F.3d at 528. In deciding whether substantial evidence supports the

ALJ’s decision, “we do not try the case de novo, resolve conflicts in evidence, or

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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 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.

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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

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

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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

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.

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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

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

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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

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

Plaintiff’s main argument is that substantial evidence does not support the

ALJ’s determination that he can perform jobs existing in significant numbers in

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the national economy. Specifically, plaintiff argues that the jobs identified by the

vocational expert (cleaner/housekeeper, mail clerk, and electronics worker, Tr. 39-

40) did not fully accommodate his asthma-related environmental limitations. For

the reasons that follow, the undersigned affirms the ALJ’s conclusion that there

are jobs that exist in significant numbers in the national economy that the plaintiff

can perform.

“In order for a vocational expert’s testimony in response to a hypothetical

question to serve as substantial evidence in support of the conclusion that a

claimant can perform other work, the question must accurately portray a

claimant’s physical and mental impairments.” Ealy v. Comm’r of Soc. Sec., 594

F.3d 504, 516 (6th Cir. 2010). The rule that a hypothetical question must

accurately portray all of claimant’s physical and mental limitations does not divest

the ALJ of her obligation to assess credibility and determine the facts. Griffeth v.

Comm’r of Soc. Sec., 217 Fed. App’x. 425, 429 (6th Cir. 2007) (citing Redfield v.

Comm’r of Soc. Sec., 366 F. Supp. 2d 489, 497 (E.D. Mich. 2005)). In fashioning

a hypothetical question to be posed to a vocational expert, the ALJ is required to

incorporate only those limitations that he accepts as credible. Id. (citing Casey v.

Sec’y of HHS, 987 F.2d 1230, 1235 (6th Cir.1993)). An ALJ is not required to

accept a claimant’s subjective complaints, and can present a hypothetical to the

VE on the basis of his own reasonable assessment of the testimony and other

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evidence. Id. (citing Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir.

2003)). In the view of the undersigned, the RFC assessment and the related

hypothetical questions posed to the VE accurately portray plaintiff’s physical and

mental impairments and thus provide substantial evidence to support the ALJ’s

non-disability finding. Plaintiff’s assertions to the contrary (that the second

hypothetical was deficient because it did not fully accommodate plaintiff’s

asthma-related environmental limitations) are not supported by the medical

evidence of record, nor credible lay testimony. The undersigned finds significant

the fact that the environmental limitations at issue were similar to those expressed

by State examiner, Dr. Florence Thomas. While Dr. Thomas specifically indicated

that plaintiff should avoid exposure to smoke, grass, pollen, and mold, the

undersigned agrees with the Commissioner that plaintiff has not identified any

evidence suggesting that the jobs identified by the VE would expose plaintiff to

these irritants. Additionally, the undersigned agrees with defendant that plaintiff

has waived any argument he may have had that the jobs identified by the VE failed

to account for all of his environmental limitations by failing to raise this issue at

the hearing. Hare v. Comm’r of Soc. Sec., 37 Fed. App’x. 773, 777 (6th Cir.

2002). 

Moreover, even if plaintiff had not waived this argument, the undersigned

concludes that any error with respect to the inconsistency between the RFC and

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DOT was harmless. First, it does not appear that plaintiff has identified any

inconsistencies between the RFC and DOT with respect to the

cleaner/housekeeper and mail clerk jobs. With respect to the electronics worker,

the DOT job description mentions “cleaning devices, solutions, and abrasives,”

and indicates that toxic, caustic chemicals are present occasionally. DOT#

726.687-010, 1991 WL 697633. While the undersigned agrees that there appears

to be inconsistency between the RFC and DOT, any error in this regard is

harmless. Indeed, even if the electronics worker job were excluded from the total

number of jobs available, as noted by the Commissioner, the cleaner/housekeeper

and mail clerk jobs would still constitute a significant number of jobs, both locally

and nationally (22,500 statewide and over one million nationally). For this

additional reason, the ALJ’s ultimate conclusion that the plaintiff could perform

jobs that exist in significant numbers in the national economy is supported by

substantial evidence. 

The Commissioner convincingly establishes that the ALJ’s RFC is

well-supported by substantial evidence and that plaintiff’s credible limitations

were accommodated in the RFC. Plaintiff simply fails to explain how the ALJ’s

RFC does not accommodate his credible limitations, as found by the ALJ, which

are fully supported by substantial evidence in the record. Moreover, simply

because plaintiff suffers from a certain condition or carries a certain diagnosis

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does not equate to disability or a particular RFC. Rather, the residual functional

capacity circumscribes “the claimant’s residual abilities or what the claimant can

do, not what maladies a claimant suffers from-though his maladies will certainly

inform the ALJ’s conclusion about the claimant’s abilities.” Howard v. Comm’r

of Soc. Sec., 276 F.3d 235, 240 (6th Cir. 2002). “A claimant’s severe impairment

may or may not affect his or her functional capacity to work. One does not

necessarily establish the other.” Yang v. Comm’r of Soc. Sec., 2004 WL 1765480,

at *5 (E.D. Mich. July 14, 2004). “The regulations recognized that individuals

who have the same severe impairment may have different [residual functional

capacities] depending on their other impairments, pain, and other symptoms.” 

Griffeth v. Comm’r of Soc. Sec., 217 Fed. App’x. 425, 429 (6th Cir. 2007); 20

C.F.R. § 404.1545(e). Thus, the mere existence of any condition from which

plaintiff may have suffered does not necessarily establish any functional limitation

or disability. Here, plaintiff seemingly argues that merely because he suffers from

asthma, he must be disabled. This is not so. And, significantly, plaintiff has failed

to produce medical evidence or an opinion showing that he had greater limitations

than the ALJ found. See Maher v. Sec’y of Health & Human Servs., 898 F.2d

1106, 1109 (6th Cir.1987) (citing Nunn v. Bowen, 828 F.2d 1140, 1145 (6th Cir.

1987).

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IV. RECOMMENDATION

For the reasons set forth above, the undersigned concludes that substantial

evidence supports the ALJ’s conclusion that there are jobs that exist in significant

numbers in the national economy that the plaintiff can perform. As such, the

undersigned RECOMMENDS that Plaintiff’s Motion for Summary Judgment

(Dkt. 16) be DENIED, that Defendant’s Motion for Summary Judgment (Dkt. 18)

be GRANTED. 

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 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 ofthisReport and Recommendation

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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: December 22, 2015 s/Michael Hluchaniuk

Michael Hluchaniuk

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on December 22, 2015, 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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