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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DEBRA ANN SMITH, 

Plaintiff, CIVIL ACTION NO. 14-CV-14571 

vs. DISTRICT JUDGE LAURIE J. MICHELSON 

MAGISTRATE JUDGE MONA K. MAJZOUB 

COMMISSIONER OF 

SOCIAL SECURITY, 

Defendant. 

___________________________________________/ 

REPORT AND RECOMMENDATION 

Plaintiff Debra Smith seeks judicial review of Defendant the Commissioner of Society 

Security’s determination that she is not entitled to Social Security benefits for her physical 

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

for Summary Judgment (docket no. 11) and Defendant’s Motion for Summary Judgment (docket 

no. 12). The motions have been referred to the undersigned for a report and recommendation 

pursuant to 28 U.S.C. § 636(b)(1)(B). (Docket no. 3.) The Court has reviewed the pleadings, 

dispenses with a hearing pursuant to E.D. Mich. L.R. 7.1(f)(2), and issues this Report and 

Recommendation. 

I. Recommendation 

The undersigned recommends that Plaintiff’s Motion for Summary Judgment [11] be 

DENIED and that Defendant’s Motion for Summary Judgment [12] be GRANTED. 

II. Procedural History 

Plaintiff filed an application for Supplement Security Income with a protective filing date 

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of October 1, 2012, and an application for Disability Insurance Benefits with a protective filing 

date of October 16, 2012, in both of which she alleged that she had been disabled since July 1, 

2012, due to back problems, obesity, diabetes, knee problems, depression, and anxiety. (See TR 

25, 27, 171-80.) The Social Security Administration denied benefits. (See TR 25.) Plaintiff 

then requested a de novo hearing, which was held on July 24, 2013, before Administrative Law 

Judge (ALJ) Ben Barnett, who subsequently found that Plaintiff was not entitled to benefits 

because she was capable of performing a significant number of jobs in the national economy. 

(TR 25-35.) The Appeals Council declined to review the ALJ’s decision, and Plaintiff 

commenced this action for judicial review. The parties then filed their instant Motions. 

III. Plaintiff’s Testimony, Medical Evidence, and Vocational Expert Testimony

Plaintiff (docket no. 11 at 1-14), Defendant (docket no. 12 at 4-7), and the ALJ (TR 30-33) 

each set out a detailed factual recitation with regard to Plaintiff’s medical record, the vocational 

expert’s testimony, and Plaintiff’s hearing testimony. The undersigned finds that there are no 

material inconsistencies between these three recitations of the record. Therefore, the undersigned 

will incorporate these statements of fact by reference. Additionally, the undersigned has 

conducted an independent review of Plaintiff’s medical record and the hearing transcript and will 

include comments and citations as necessary throughout this Report and Recommendation. 

IV. Administrative Law Judge’s Determination

 The ALJ found that Plaintiff met the insured status requirements of the Act through 

December 31, 2017; that she had not engaged in substantial gainful activity since July 1, 2012, her 

alleged onset date; and that she suffered from severe “degenerative disc disease; sponylolisthesis 

(sic) at L5-S1, status post-surgery; L5 radiculopathy, status post L4 and L5 laminectomy and 

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inter-body fusion; obesity, diabetes mellitus, and left knee arthritis, status post arthroscopy and 

articular debridement, removal of cartilaginous loose bodies.” (TR 27.) The ALJ also found that 

Plaintiff’s anxiety and depression were nonsevere. (TR 28.) The ALJ then found that her 

impairments did not meet or equal those listed in the Listing of Impairments. (TR 29-30.) The 

ALJ found, however, that Plaintiff’s allegations regarding the extent of her symptoms were not 

wholly credible and that Plaintiff had the residual functional capacity to perform light work with 

the following additional exceptions: 

. . . [C]laimant 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. She can occasionally climb 

ramps and stairs; but can never climb ladders, ropes, or scaffolds. The claimant 

can frequently balance; and can occasionally stoop, kneel, crouch, and crawl. 

(TR 30-33.) The ALJ then determined, in reliance on the VE’s testimony, that Plaintiff was 

capable of performing a significant number of jobs in the national economy. (TR 33-34.) 

Therefore, the ALJ found that Plaintiff was not disabled under the Social Security Act from July 1, 

2012, through the date of his decision. (TR 34-35.) 

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 

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

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 

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

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’s arguments are 

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not entirely clear, but she appears to assert that this matter should be reversed or remanded because 

(1) the ALJ’s determination that she could perform light work was erroneous, and (2) the ALJ 

improperly applied Grid Rule 202.21 where he should have applied Grid Rule 201.14. (See

docket no. 11.) 

1. The ALJ’s finding that Plaintiff Could Perform Light Work 

Plaintiff asserts that the ALJ erred in finding that she could perform light work for two 

reasons. First, Plaintiff contends that the ALJ ignored her testimony and a restriction from her 

doctor limiting her to lifting no more than five pounds. (Docket no. 11 at 15.) Second, Plaintiff 

argues that SSR 83-10 states that performing a full range of light work requires an individual to 

stand or walk for approximately six hours of an eight-hour workday; therefore, the ALJ’s finding 

that she required the option to sit/stand at will precluded her from being able to perform light work. 

(Id.) The undersigned does not find Plaintiff’s argument persuasive. 

With regard to the five-pound limitation, Plaintiff is correct that her treating physician, Dr. 

Fitch, limited her to lifting no more than five pounds in March 2013. (See TR 398-99.) But the 

ALJ acknowledged this restriction, noting that her condition improved in the months following her 

surgery: 

In March 2013, Dr. Fitch, again indicated that the claimant could return to work and 

wrote a note limiting the claimant to lifting no more than give pounds and indicated 

that she needed an option to sit or stand as needed; he also recommended a function 

exam to assess the claimant’s limitations. Dr. Fitch indicated that he could 

reassess the claimant’s work capacity in three months after the January exam. 

Although Dr. Fitch indicated that the claimant was restricted to five pounds of 

lifting, in January 2013, Dr. Rakesh Patel indicated that the claimant could return to 

work in February 2013 without the restrictions that he had indicated in January 

2013. . . . Then in March 2013, Dr. Patel indicated that the claimant could return to 

activities as tolerated. On examination in June 2013, the claimant’s gait was 

normal, there was no spasm, muscle tone was normal, and strength was normal in 

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the bilateral lower extremities, she had decreased range of motion and strength in 

the right ankle. During that June examination, the claimant reported that she had 

not returned to see the surgeon, had not gone to physical therapy, was not receiving 

treatment, and was using Tylenol for pain. The claimant’s lack of treatment and 

the improvements in the physical examination do not support work restrictions at 

the same level that Dr. Fitch indicated. I find that the claimant can perform lifting 

up to twenty pounds occasionally and ten pounds frequently; however, I find that 

she must have the option to sit and stand, at will, as described above. 

. . . 

. . . I considered the five pound restriction given immediately after the claimant’s 

back surgery. This restriction was not intended to reflect the claimants long term 

limitations. I give these short-terms (sic) restrictions little weight and find that the 

claimant is not as limited now as she was shortly after undergoing surgery. 

(TR 31-32.) Thus, while Plaintiff does not agree with the ALJ’s findings, it is clear that he 

considered all of the available evidence when determining Plaintiff’s ability to lift more than five 

pounds. And as discussed, supra, it is not the Court’s role to evaluate or resolve conflicts in the 

evidence. See Brainard, 889 F.2d at 681; Garner, 745 F.2d at 387. Here, the ALJ’s decision is 

supported by substantial evidence, and while Plaintiff’s contention may also be supported, this 

determination falls within the ALJ’s zone of choice. 

With regard to Plaintiff’s contention that an at-will sit/stand option precludes her ability to 

perform light work, Plaintiff has provided no basis for such a broad generalization. Plaintiff’s 

argument relies on an example from the Program Operation Manual System (POMS), in which an 

individual falling between light and sedentary work levels was limited to sedentary work because 

the individual had a “significantly reduced capacity to perform light work.” (Docket no. 11 at 

16-17.) But the individual in the POMS example was limited to standing or walking for only two 

hours in an eight-hour workday. (Id. at 16.) Plaintiff asserts that an at-will sit/stand option 

would allow her to choose to sit for an entire day, thus requiring sedentary work, but the ALJ 

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resolved this conflict by asking the VE to assume that Plaintiff had an at-will sit/stand option. 

The VE testified that such an individual could perform work as a small products assembler, a 

cashier, or a ticket seller. (See TR 33-34.) Therefore, notwithstanding Plaintiff’s argument, the 

VE’s testimony, based on her expertise and knowledge, provided substantial evidence to support 

the ALJ’s finding that even after the light-work base was eroded by Plaintiff’s sit/stand 

requirement, there were still a significant number of jobs in the national economy that Plaintiff 

could perform. 

2. Plaintiff’s GRID Argument 

In reaching his determination, the ALJ relied, in part, on Medical Vocational (GRID) Rule 

202.21, noting that “[i]f the claimant had the residual functional capacity to perform the full range 

of light work, a finding of “not disabled” would be directed by [GRID] Rule 202.21.” (TR 34.) 

Plaintiff argues that even considering this rule was error because the rule applies to individuals 

between the ages of 45 and 49, and although she was 49 years old, she was only 45 days shy of her 

50th birthday, which would have placed her in the “closely approaching advance age” category. 

(Docket no. 11 at 17-18.) Therefore, Plaintiff contends, the ALJ should have considered her age 

to be “borderline,” he should have considered her to be 50 years old, and he should have applied 

GRID Rule 201.14 to find her disabled. (Id. at 18-22.) 

While Plaintiff’s argument flows logically, it rests of several inaccurate assumptions. As 

Defendant asserts, GRID Rule 201.14 applies to individuals who are between 50 and 54 years old, 

have a high-school education, do not have transferrable skills, and are limited to sedentary work. 

While it would have been acceptable for the ALJ to place Plaintiff in the “closely approaching 

advanced age” category at 50 years old, nothing in the evidence presented by Plaintiff compelled 

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him to do so. See 20 C.F.R. §§ 404.1563(b), 416.963(b); Bowie v. Comm’r of Soc. Sec., 539j F.3d 

395, 399 (6th Cir. 2008); Crady v. Sec’y of Health & Hum. Servs., 835 F.2d 617, 622 (6th Cir. 

1987). And while Plaintiff does not directly address the issue, the ALJ did not find that she did 

not have transferable work skills; instead, he made no final determination on the matter. (TR 33.) 

Most notably, however, Plaintiff’s argument rests on the assumption that the ALJ erred in not 

limiting her to sedentary work. But as discussed, supra, the ALJ’s finding that she could perform 

less than a full range of light work is supported by substantial evidence. Therefore, Plaintiff’s 

GRID argument fails as well. 

VI. Conclusion 

For the reasons discussed above, Plaintiff’s Motion for Summary Judgment [11] should be 

DENIED and Defendant’s Motion for Summary Judgment [12] should be GRANTED. 

REVIEW OF REPORT AND RECOMMENDATION 

Either party to this action may object to and seek review of this Report and 

Recommendation, but must act within fourteen (14) days of service of a copy hereof as provided 

for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). 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. 1991); United States v. Walters, 638 

F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but fail to raise others with 

specificity will not preserve all objections that 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 Rule 72.1(d)(2) of the Local Rules of the United States District Court for the Eastern 

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District of Michigan, a copy of any objection must be served upon this Magistrate Judge. 

Within fourteen (14) days of service of any objecting party’s timely filed objections, the 

opposing party may file a response. The response shall be not more than five (5) pages in length 

unless by motion and order such page limit is extended by the Court. The response shall address 

specifically, and in the same order raised, each issue contained within the objections. 

Dated: September 18, 2015 s/ Mona K. Majzoub 

 MONA K. MAJZOUB 

UNITED STATES MAGISTRATE JUDGE 

PROOF OF SERVICE 

I hereby certify that a copy of this Report and Recommendation was served on counsel of 

record on this date. 

Dated: September 18, 2015 s/ Lisa C. Bartlett 

Case Manager 

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