UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

 Plaintiff Debra Smith worked for many years as a bus driver for disabled kids. In 2009, 

Smith began to suffer from back pain and, by July 2012, she had stopped working at least in part 

because of her pain. In October 2012, she applied for disability insurance benefits and 

supplemental security income asserting that her back pain, obesity, diabetes, left-knee arthritis, 

and depression prevented her from working full time. An administrative law judge thought 

otherwise. Smith then appealed here. 

 All pretrial matters in this case were referred to Magistrate Judge Mona K. Majzoub and 

she recommends that the ALJ’s decision be affirmed as supported by substantial evidence. (See 

generally Dkt. 13, R. & R.) 

 Smith objects. (Dkt 14, Pl.’s Objs.) Highlighting findings in several medical records, she 

asserts that substantial evidence does not support the ALJ’s conclusion that she could perform a 

restricted range of light work. (See generally id.) Although the specifics of this argument are not 

entirely clear, it appears that her main point is that “light work” requires “standing or walking, 

off and on, for a total of approximately 6 hours of an 8-hour workday,” SSR 83-10, 1983 WL 

DEBRA ANN SMITH, 

 Plaintiff, 

 

v. 

 

COMMISSIONER OF SOCIAL SECURITY, 

 Defendant. 

Case No. 2:14-cv-14571 

Honorable Laurie J. Michelson 

Magistrate Judge Mona K. Majzoub 

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION [13], 

GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [12], AND 

DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [11] 

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31251, at *6; see also 20 C.F.R. §§ 404.1567(b), 416.967(b), but her medical records show that 

she could not do that much standing or walking. (Pl.’s Objs. at 4–5.) 

 To address Smith’s objection, it would help if the ALJ had been clearer about how much 

he thought Smith could walk or stand. The ALJ reduced the walking and standing limitation 

associated with light work from six hours in an eight-hour workday as follows: “claimant must 

have the option to sit and/or stand option [sic] defined as: allowing the claimant to sit or stand, 

alternatively, at will, provided she is not off-task greater than ten percent of the work period.” 

(Tr. 30.) Although the ALJ may have meant that Smith could perform light-work jobs where 

sitting as needed would not take her off task for more than ten percent of the time, what the ALJ 

actually wrote (and told the vocational expert (Tr. 67)) is that Smith could sit at her light-work 

job so long as sitting did not take her off task more than ten percent of the time. But how much is 

that? Some light-work jobs might be such that sitting any more than two hours in a workday 

would mean being off task (i.e., to do the job, a bare minimum of six hours of standing or 

walking is necessary). Other light-work jobs might allow the worker to sit most of the time 

without being off task. In other words, the amount the ALJ permitted Smith to sit depends on the 

type of job—it is not a static limitation. And because this Court is not a vocational expert, it 

cannot tell whether the jobs the vocational expert identified—small products assembler, cashier, 

or ticket seller—are of the mostly-standing-or-walking or mostly-sitting variety. (And it is no 

answer that the vocational expert testified that these three jobs fit the ALJ’s limitation: the three 

jobs could require a minimum of standing or walking for six hours with all additional sitting time 

being off task and fit the description.) 

In short, the ALJ’s sit-stand option might have significantly reduced the standing and 

walking demands on Smith or not so much. And this would seem to be a relevant consideration 

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in assessing whether the evidence, which indisputably shows that Smith has severe medical 

conditions, reasonably supports the ALJ’s functional limitations. Yet no one—the Social 

Security Administration’s Appeals Council, Smith, the Commissioner of Social Security, or the 

Magistrate Judge—made any mention of the ALJ’s sit-stand option being vague. 

Fortunately, the Court need not clarify it. The Court can assume in Smith’s favor that the 

ALJ only reduced the walking and standing requirement associated by light work by ten percent 

of the work day, i.e., that he thought Smith could stand or walk for the six hours that light work 

requires except that she could take breaks to sit so long as those breaks did not exceed 45 

minutes in total. The Court can make this assumption in Smith’s favor because substantial 

evidence supports the ALJ’s finding that Smith could meet his walking and standing limitation—

even when interpreted in the manner most favorable to Smith. (To be clear, the Court is not 

making a finding that the ALJ did not make; whether the ALJ meant a robust or limited sit-stand 

option, he believed the evidence supported his limitation. The Court is simply determining 

whether that is so assuming the interpretation of the ALJ’s finding most favorable to Smith.) 

 A summary of the key medical records shows why substantial evidence supports the 

ALJ’s standing-walking-sitting limitation. In June 2009, Smith reported to a physician that she 

had daily pain in her back at the six-out-of-ten level and in her leg at the five- to nine-out-of-ten 

level. (Tr. 378.) But, at the time, Smith reported being able to walk a half-mile. (Id.) An MRI in 

July 2012 (the administrative record has a big gap) showed “severe” spinal stenosis and “severe” 

neural foraminal narrowing between Smith’s L5 and S1 vertebrae. (Tr. 296.) But in September 

2012, Smith again reported to a physician that she could walk about a half-mile before pain 

developed. (Tr. 296.) In November 2012, Smith underwent surgery: an L5-S1 fusion and L5 

laminectomy. The next month, Smith reported an onset of leg pain of moderate severity; the pain 

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was apparently related to her restless leg syndrome. (Tr. 314.) In a February 2013 exam, Smith 

exhibited full strength in her lower extremities save for in her right extensor and flexor hallucis 

longus (muscles that, among other things, extend and flex the big toe). (Tr. 402.) A physician 

noted, “[m]ost of [Ms. Smith’s] pain has improved, but she continues to have some baseline 

pain. . . . She is interested in returning to work and lifting of restrictions if possible.” (Tr. 401.) In 

March 2013, an EMG confirmed that Smith had “[r]ight L5 radiculopathy” (Tr. 425), and a 

physician noted that Smith’s low back pain and right buttock pain was “likely” attributable to 

that condition (Tr. 398). But the physician also provided that Smith could return to work with the 

following restrictions: no lifting, pushing, or pulling more than five pounds and the ability to 

“sit[] or stand[] as needed to control pain.” (Tr. 398.) In June 2013, Smith reported to a physician 

that she had back pain that was “mild-moderate” and occurred persistently. (Tr. 450.) Smith said 

her symptoms were “aggravated by walking” but “relieved by sitting.” (Id.) 

Nothing in the foregoing indicates that it was unreasonable for the ALJ to think that 

Smith could perform a job that required her to stand or walk for six hours a day but permitted 

Smith to sit for a total of 45 minutes any time Smith needed a break. Indeed, the physician that 

returned Smith to work following her surgery simply provided that Smith needed to “sit[] or 

stand[] as needed to control pain,” which is arguably consistent with the ALJ’s sit-stand 

limitation. (The ALJ apparently thought so as it seems he adopted a sit-stand limitation because 

of that physician’s findings. (See Tr. 31–32.)) 

In sum, the amount that the ALJ thought Smith could stand and walk is reasonable in 

view of the medical records. And because the ALJ’s functional limitations are supported by 

substantial evidence, this Court has no basis to disturb them. Cutlip v. Sec’y of Health & Human 

Servs., 25 F.3d 284, 286 (6th Cir. 1994); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en 

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banc). The report and recommendation is thus ADOPTED over Smith’s objections, the 

Commissioner’s motion for summary judgment GRANTED, and Smith’s motion DENIED. 

SO ORDERED. 

s/Laurie J. Michelson 

LAURIE J. MICHELSON 

UNITED STATES DISTRICT JUDGE 

 Dated: March 11, 2016 

CERTIFICATE OF SERVICE 

The undersigned certifies that a copy of the foregoing document was served on the 

attorneys and/or parties of record by electronic means or U.S. Mail on March 11, 2016. 

 s/Jane Johnson 

Case Manager to 

 Honorable Laurie J. Michelson 

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s/Laurie J. Michelson 

LAURIE J. MICHELSON 

UNITED STATES DISTRICT JUDGE 

 Dated: March 11, 2016 

CERTIFICATE OF SERVICE 

The undersigned certifies that a copy of the foregoing document was served on the attorneys 

and/or parties of record by electronic means or U.S. Mail on March 11, 2016. 

 s/Jane Johnson 

Case Manager to 

 Honorable Laurie J. Michelson 

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