1

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MARK GREGORY 

WUDZINSKI, 

 Plaintiff, 

v. 

COMMISSIONER OF 

SOCIAL SECURITY, 

 Defendant. 

 

Case No. 4:15-cv-11062 

Judge Terrence G. Berg 

Magistrate Judge Anthony P. Patti 

___________________________________/ 

REPORT AND RECOMMENDATION TO DENY PLAINTIFF’S MOTION 

FOR SUMMARY JUDGMENT (DE 12) AND GRANT DEFENDANT’S 

MOTION FOR SUMMARY JUDGMENT (DE 14) 

I. RECOMMENDATION: For the reasons that follow, it is 

RECOMMENDED that the Court DENY Plaintiff’s motion for summary 

judgment (DE 12), GRANT Defendant’s motion for summary judgment (DE 14), 

and AFFIRM the Commissioner’s decision. 

II. REPORT 

 Plaintiff, Mark Gregory Wudzinski, brings this action under 42 U.S.C. § 

405(g) for review of a final decision of the Commissioner of Social Security 

(“Commissioner”) denying his application for disability insurance (DI) benefits. 

This matter is before the United States Magistrate Judge for a Report and 

Recommendation on Plaintiff’s motion for summary judgment (DE 12), the 

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Commissioner’s cross motion for summary judgment (DE 14) and the 

administrative record (DE 10). 

A. Background

 Plaintiff filed his application for DI benefits in February 2012, alleging that 

he has been disabled since June 23, 2007, at age 45. (R. at 134-137; see also R. at 

156-162.) Plaintiff alleges disability as a result of a metal plate in his right ankle, 

spinal surgery, a third degree burn to his right arm (which included his hand), and 

swelling in the left knee. (R. at 166-172; see also R. at 235.)1

 Plaintiff’s 

application was denied at the initial level in June 2012. (R. at 56-65, 66, 77-87.) 

In August 2012, Plaintiff sought a de novo hearing before an Administrative 

Law Judge (“ALJ”). (R. at 88-89.)2

 ALJ John J. Rabaut held a video hearing on 

August 8, 2013, at which Plaintiff was represented by attorney Stefanie Rossi, and 

Vocational Expert (VE) Scott Silver testified. (R. at 33-55; see also R. at 126.) 

On September 16, 2013, ALJ Rabaut determined that Plaintiff was not disabled 

within the meaning of the Social Security Act. (R. at 12-31.) 

On November 19, 2013, Plaintiff enlisted new counsel and requested review 

of the hearing decision. (R. at 1, 2-3, 4-10, 203-209.) On January 23, 2015, the 

 

1

 He also suffered a burn to his face (R. at 230), but this was not listed in his claim 

(R. at 167). 

2

 It appears Plaintiff also filed for reconsideration on August 17, 2012, the case was 

referred to Dr. McLarnon on or about October 19, 2012, and Mary McLarnon, 

M.D. rendered her decision on October 22, 2012. (R. at 67, 359-360.) 

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Appeals Council denied Plaintiff’s request for review. (R. at 68-73.) Thus, ALJ 

Rabaut’s decision became the Commissioner’s final decision. 

Plaintiff then timely commenced the instant action on March 22, 2015. (DE 

1.) 

B. Plaintiff’s Medical History 

 Plaintiff’s medical records span the period from January 12, 1995 to June 

21, 2013. (R. at 210-373 [Exhibits 1F-18F].)3

 Of particular import here are 

Plaintiff’s medical records dated June 23, 2007, his alleged date of disability, 

through June 30, 2010, his date last insured. 

Although Plaintiff treated with Ronald Barnett, D.O. of Shores Primary Care 

during this time (see R. at 324-342), particularly relevant to the case at bar are 

Plaintiff’s medical records regarding his admission to Detroit Receiving Hospital 

on June 22, 2007 for treatment of first and second degree burns to his face and 

right arm, which he suffered while “trying to cook breakfast on a propane stove on 

his boat when the propane stove exploded.” (R. at 230-232; see also R. at 233-

234.) On July 3, 2007, Michael T. White, M.D., performed several procedures: a 

split-thickness skin graft to the right hand, an excisional debridement of the 

dorsum of the right hand, placement of split-thickness skin graft to the extensor 

 

3

 Plaintiff’s surgical history includes back surgery on January 12, 1995, left ankle 

surgery on October 12, 1996, and an umbilical herniorrhaphy on April 9, 2007. (R. 

at 213-215, 222-225, 364-365.) A herniorrhaphy is a “[s]urgical repair of a 

hernia.” Stedman’s Medical Dictionary 406360 (Nov. 2014). 

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side of the left forearm and arm, and excisional debridement of the right forearm 

and distal arm. (R. at 235-237, 275-277.) He was discharged on July 6, 2007. (R. 

at 230-232.) 

Plaintiff received follow up treatment from July 9, 2007 through May 9, 

2008, including prescriptions for Vicodin and Lortab, as well as physical / 

occupational therapy. (R. at 241-274, 296, 291, 288.) Dr. White’s notes from July 

20, 2007 indicate that Plaintiff had a small blister on his right shoulder but that the 

wounds on his right arm and hand had closed. (R. at 263, 265.) Progress notes 

from February 15, 2008 indicate that Plaintiff did not show up for his last physical 

therapy appointment, scheduled for February 4, 2008. (R. at 284.) Burn Center 

follow up notes from May 9, 2008 seem to indicate that Plaintiff’s right upper 

extremity split-thickness skin graft (STSG) had healed and that Plaintiff had 

good/full range of motion of his right upper extremity and hand. (See R. at 241-

242.)4

 

In a letter dated July 17, 2008, Dr. White opined that Plaintiff’s “long-term 

prognosis includes some residual impairment in fine motor activity of his right 

hand, as well as limitations in his ability to lift over 10 lbs. He will also be limited 

in his ability to perform repetitive movements with his right hand and upper 

extremity[.]” (R. at 278.) 

 

4

 These notes are stamped May 9, 2008; however, they appear to have been signed 

on July 11, 2008. (R. at 241-242.) 

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C. Hearing Testimony

 1. Plaintiff’s Testimony 

 Plaintiff testified via video from Fort Gratiot, Michigan. (R. at 35.) At the 

time of the hearing, Plaintiff was 52 years old. (R. at 36.) Plaintiff has an 

Associate’s Degree. (R. at 36-37.) He lives with his son in a single-story house 

with a basement but first-floor laundry. (R. at 37.) Plaintiff testified that he last 

worked in 2007. (R. at 36.) He is right-handed. (R. at 48.) 

 With respect to Plaintiff’s medical records, the ALJ focused his questions on 

the period of 2007-2010, acknowledging both that Plaintiff’s date of last insured 

was June 2010 and that Plaintiff lost insurance seemingly during 2011, presumably 

resulting in less medical treatment thereafter. (R. at 37-38.) Plaintiff testified that 

it took him one year to heal following the June 2007 burn he suffered to his right 

hand and arm, since which time he cannot lift with his arm and drops everything. 

(R. at 38-39, 41-42, 48.) Through rehabilitation, he learned to use a computer, 

after which he went back to school and completed college; however, he was unable 

to type. (R. at 39-40.) Plaintiff also testified that his recovery involved being “laid 

up,” and the issue with his spine worsened and crept down into his hip. (R. at 38, 

40.) Now, his hip has gone out. (R. at 40.) 

Plaintiff testified about the problems he has had walking. (R. at 40-41.) 

Although he testified that he “can’t walk very far[,]” he also stated that he has 

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“probably maybe a two-hour time span if [he has] to walk.” Then, he has to lie 

down and stretch, otherwise his hip goes out of place. He has always had back 

pain. (R. at 41.) Additionally, his ankle swells up, and it takes approximately 45 

minutes to an hour after he wakes up “to loosen it up to walk on it.” (R. at 42.) 

Plaintiff testified that he has a driver’s license, but only drives if he has to. 

(R. at 41.) Plaintiff testified that he began to do the laundry himself again around 

nine or ten months after being burned, but he had his son’s assistance. (R. at 42-

43.) Now, his son takes care of most of the housework, because Plaintiff’s arm 

does not function well, although he is able to empty the dishwasher. (R. at 41, 43.) 

Plaintiff also testified that, during the recovery period, he could sit for one or two 

hours before needing to lie down, and was unable to use his arm to do anything and 

had to keep it elevated for about six months (R. at 43-44). During 2009, he could 

sit for one to two hours, after which he “could get up and walk a little bit, and 

move around[,]” but did not need to lie down as before. (R. at 45.) However, 

between 2009 and 2010, his mobility got progressively worse. (R. at 45-46.) 

During this time, he finished up school, although he faced some limitations with 

standing and sitting. (R. at 46-47.) 

With respect to his ability to resume sedentary or other work prior to June 

2010, Plaintiff explained that he could not lift his arm, pick up any objects or write, 

as it was too painful. (R. at 47.) Plaintiff stated that his Vicodin causes problems 

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with his stomach, groin or lower abdomen, and he also takes Prilosec. (R. at 47.) 

He naps all of the time and does not sleep through the night, seemingly the result 

of medication, soreness and/or pain. (R. at 47-48.) 

 2. Vocational Expert Testimony

 Vocational Expert (VE) Scott Silver also testified. (R. at 48-55.) The VE 

testified that an individual who could perform work at the light exertional level, 

but who had certain postural limitations (could not climb ladders, ropes, or 

scaffolds; could only occasionally climb ramps or stairs, balance, stoop, crouch, 

kneel; and could not crawl), manipulative limitations (no constant overhead 

reaching and handling, and handling or fingering with the right upper extremity) 

and environmental limitations (avoid exposure to unprotected heights) could not 

perform Plaintiff’s past work as a construction manager. (R. at 49-50.) However, 

the VE testified that such an individual could perform the light, unskilled jobs of 

parking lot attendant, usher and office helper. (R. at 50-51.) In addition, the VE 

testified that such an individual could perform work as a surveillance monitor at 

the sedentary exertion level. (R. at 51-52.) 

Upon examination by Plaintiff’s counsel, the VE testified that precluding use 

of the dominant hand “grossly reduces the pool of jobs available to that person . . . 

.” (R. at 53.) However, the surveillance monitor position would still exist. (R. at 

53-54.) 

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 D. The Administrative Decision5

 ALJ Rabaut rendered his decision on September 16, 2013. (R. at 12-31.) At 

Step 1, he found that Plaintiff did not engage in substantial gainful activity during 

the period from his alleged onset date of June 23, 2007 through his date last 

insured of June 30, 2010. (R. at 17.) 

At Step 2, the ALJ found that Plaintiff had the following severe 

impairments: degenerative disc disease L5-S1 post laminectomy; status post third 

degree burn, right wrist; status post ORIF (open reduction internal fixation) ankle 

fracture; obesity; and avascular necrosis, right hip. (R. at 17.) 

 

5 Social Security Regulations require ALJs to resolve a disability claim through a 

five-step sequential evaluation of the evidence. See 20 C.F.R. § 404.1520(a)(4). 

Although a dispositive finding at any step terminates the ALJ’s review, see Colvin 

v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), if fully considered, the sequential 

review considers and answers five questions: 

 1. Is the claimant engaged in substantial gainful activity? 

 2. Does the claimant suffer from one or more severe impairments? 

 3. Do the claimant’s severe impairments, alone or in combination, meet 

or equal the criteria of an impairment set forth in the Commissioner’s Listing of 

Impairments, 20 C.F.R. Subpart P, Appendix 1? 

 4. Considering the claimant’s residual functional capacity, can the 

claimant perform his or her past relevant work? 

 5. Considering the claimant’s age, education, past work experience, and 

residual functional capacity, can the claimant perform other work available in the 

national economy? 

See 20 C.F.R. §404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th 

Cir. 2009); Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001). 

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At Step 3, the ALJ found that Plaintiff did not have an impairment or 

combination of impairments that met or medically equaled the severity of one of 

the listed impairments. (R. at 17-18.) 

 At Step 4, the ALJ found that Plaintiff had the residual functional capacity 

(RFC) to perform light work, with multiple limitations. (R. at 18-25.) Moreover, 

the ALJ found that Plaintiff was unable to perform any past relevant work. (R. at 

25.) 

 At Step 5, considering Plaintiff’s age, education, work experience, and RFC, 

the ALJ found that there were jobs that existed in significant numbers in the 

national economy that Plaintiff could have performed. (R. at 26.) 

 E. Standard of Review

 The District Court has jurisdiction to review the Commissioner’s final 

administrative decision pursuant to 42 U.S.C. § 405(g). When reviewing a case 

under the Social Security Act, the Court “must affirm the Commissioner’s decision 

if it ‘is supported by substantial evidence and was made pursuant to proper legal 

standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) 

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see 

also 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner of Social Security as 

to any fact, if supported by substantial evidence, shall be conclusive . . . .”). Under 

this standard, “substantial evidence is defined as ‘more than a scintilla of evidence 

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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 

(quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 

1994)). In deciding whether substantial evidence supports the ALJ’s decision, the 

court does “not try the case de novo, resolve conflicts in evidence or decide 

questions of credibility.” Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007); 

Rogers, 486 F.3d at 247 (“It is of course for the ALJ, and not the reviewing court, 

to evaluate the credibility of witnesses, including that of the claimant.”). 

 Although the substantial evidence standard is deferential, it is not trivial. 

The Court must “‘take into account whatever in the record fairly detracts from 

[the] weight’” of the Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 

395 (6th Cir. 2002) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 

(1951)). Nevertheless, “if substantial evidence supports the ALJ’s decision, this 

Court defers to that finding ‘even if there is substantial evidence in the record that 

would have supported an opposite conclusion.’” Blakley v. Comm’r of Soc. Sec., 

581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th 

Cir. 1997)). Finally, even if the ALJ’s decision meets the substantial evidence 

standard, “‘a decision of the Commissioner will not be upheld where the SSA fails 

to follow its own regulations and where that error prejudices a claimant on the 

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merits or deprives the claimant of a substantial right.’” Rabbers, 582 F.3d at 651 

(quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)). 

F. Analysis

In his motion for summary judgment, Plaintiff generally contends that the 

ALJ’s RFC and credibility determinations do not comply with social security rules 

and regulations. Under this broad umbrella, Plaintiff takes issue with the ALJ’s 

Step 3 listing determination and his assignment of weight to the opinion of one of 

Plaintiff’s treating physicians. (DE 12 at 10-15.) The Commissioner opposes 

Plaintiff’s motion, arguing that substantial evidence supports the ALJ’s Step 3 

listing analysis and Step 4 RFC determination. (DE 14 at 9-17.) 

I will address each of these issues: 

1. Plaintiff’s Step 3 listing argument, to the extent he intended 

to bring one, is undeveloped and unavailing. 

At Step 3, the ALJ concluded that Plaintiff did not have an impairment or 

combination of impairments that met or medically equaled the severity of one of 

the listed impairments, specifically mentioning Listings 1.00Q (“Effects of 

obesity.”), 1.02 (“Major dysfunction of a joint(s) (due to any cause)”), 1.04 

(“Disorders of the spine”) and 1.08 (“Soft tissue injury (e.g., burns)”). (R. at 17-

18.) In a single paragraph of his brief, Plaintiff seems to challenge the ALJ’s 

conclusions as to Listings 1.02 and 1.08, although this was not identified as an 

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issue for review. (DE 12 at 5, 10, 12; R. at 18.) The Court should leave the ALJ’s 

Step 3 listing determination intact. 

First, Plaintiff’s listing argument is inadequately developed. He notes the 

ALJ’s Step 2 finding that Plaintiff’s severe impairments included a third degree

burn to his right wrist (R. at 17), refers to Plaintiff’s June / July 2007 diagnosis of 

first and second degree burns to his face and right arm (R. at 230) and then simply 

states, “[t]he medical records clearly reflect that Plaintiff met listing 1.02 and 

1.08.” (DE 12 at 12.) This Court is left to wonder how. 

“Plaintiff bears the burden of establishing that he meets a particular listing . . 

. .” Mortzfield v. Comm'r of Soc. Sec., No. 12-15270, 2014 WL 1304991, at *14 

(E.D. Mich. Mar. 31, 2014). As the Commissioner correctly observes (DE 14 at 9-

10), Plaintiff does not cite listing criteria or explain how the administrative record 

satisfies the criteria at issue. Mortzfield, 2014 WL 1304991 at *14 (“even 

examining plaintiff's argument as raised in the reply brief, he offers no evidentiary 

analysis to support his claim that he satisfied the requirements of Listing 12.02. . . . 

Plaintiff cannot simply make the bald claims that the ALJ erred, while leaving it to 

the Court to scour the record to support this claim.”), Harvey v. Comm'r of Soc. 

Sec., No. 14-CV-10614, 2014 WL 5465531, at *4 (E.D. Mich. Oct. 28, 2014) 

(“Although the ALJ did not explain his reasoning at Step Three . . . Harvey must 

show that there is evidence in the record that she meets any of the subsections 

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under Listing 1.04.”), Moran v. Comm'r of Soc. Sec., 40 F. Supp. 3d 896, 924 (E.D. 

Mich. 2014) (“the ALJ's analysis does not need to be extensive if the claimant fails 

to produce evidence that she meets the Listing.”) (citation omitted). Thus, 

Plaintiff’s argument that he met listing 1.02 and 1.08 is “insufficient and 

undeveloped[,]” Mortzfield, 2014 WL 1304991, at *14, and Plaintiff has not met 

his burden to challenge the ALJ’s Step 3 listing determination. 

Second, the ALJ made several, specific observations about why Plaintiff’s 

severe impairments did not meet the relative listings. As to Listing 1.04, the ALJ 

observed that Plaintiff “lacks the requisite motor and sensory deficits and there is 

no evidence of spinal arachnoiditis or lumbar spinal stenosis resulting in 

pseudoclaudication.” Next, as to Listings 1.02B or 1.08, the ALJ observed that 

Plaintiff “is able to perform fine and gross movements effectively as defined in the 

regulations,” further observing that “the evidence does not establish that the 

claimant is under continuing surgical management for such condition as defined in 

the regulations.” Also, as to Listing 1.02A, the ALJ observed that Plaintiff “is able 

to ambulate effectively as defined in the regulations.” Finally, as to obesity, the 

ALJ observed that “there is no evidence in the case record of the requisite impact 

on musculoskeletal, respiratory, cardiovascular, or other body system functioning.” 

(See R. at 18.) 

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Third, Plaintiff’s attack upon the time frame of the ALJ’s Step 3 listing 

decision is equally unavailing. Plaintiff seems to argue that the ALJ did not 

consider whether Plaintiff’s impairments met the 12 month duration requirement 

(at any time during the June 23, 2007 onset date to the June 30, 2010 date last 

insured). (See DE 12 at 12.) Casually referencing (but not quoting) Dr. White’s 

July 17, 2008 opinion, which stated that Plaintiff’s long-term prognosis included 

“some residual impairment in fine motor activity of his right hand,” and 

“limit[ation] in is ability to perform repetitive movements with his right hand and 

upper extremity[,]” (R. at 278), Plaintiff suggests that, “[t]hat would indicate 

Plaintiff had met the 12 month duration requirement and ought to have been at 

minimum awarded a closed period time of disability by the ALJ.” (DE 12 at 12.) 

That conclusion would be quite a leap for the Court to take, without more. 

Plaintiff asks this Court to conclude that Plaintiff met the 12 month duration 

requirement based upon Dr. White’s fairly vague July 17, 2008 letter about 

Plaintiff’s long-term prognosis (quoted above). (R. at 278, DE 12 at 12.) 

However, for the reasons discussed below the ALJ properly discounted this 

opinion. Moreover, as the Commissioner points out, Plaintiff was injured on June 

22, 2007, and burn clinic progress notes dated May (or July) 2008 indicate Plaintiff 

was doing well with no pain (although he had back pain unrelated to his burn 

injury) and had full range of motion in his fingers and hand. (DE 14 at 11, R. at 

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21, 230-232, 242.) In the end, the ALJ considered the listing definitions6

 and 

concluded that Plaintiff’s severe impairments did not meet them. Plaintiff has not 

met his burden to show otherwise. 

2. Substantial evidence supports the ALJ’s Step 4 RFC 

determination. 

Plaintiff’s RFC is “the most [he or she] can still do despite the physical and 

mental limitations resulting from [his or] her impairments.” Poe v. Comm’r of 

Soc. Sec., 342 F. App’x 149, 155 (6th Cir. 2009); see also 20 C.F.R. §§ 

404.1545(a), 416.945(a). The determination of Plaintiff’s RFC is an issue reserved 

to the Commissioner and must be supported by substantial evidence. 20 C.F.R. §§ 

404.1527(3), 416.927(e). ‘“ALJs must not succumb to the temptation to play 

doctor and make their own independent medical findings.’” Simpson v. Comm’r of 

Soc. Sec., 344 F. App’x 181, 194 (6th Cir. 2009) (quoting Rohan v. Chater, 98 

F.3d 966, 970 (7th Cir. 1996)). 

a. The ALJ complied with SSR 96-8p. 

Plaintiff generally asserts that the ALJ committed reversible error by not 

complying or even attempting to reconcile SSR 96-8p with his decision. (See DE 

12 at 14.) This argument is fruitless. Pursuant to Social Security Rule 96-8p, the 

RFC assessment must include: 

 

6

 See https://www.ssa.gov/disability/professionals/bluebook/1.00-MusculoskeletalAdult.htm. 

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[A] narrative discussion describing how the evidence supports each 

conclusion, citing specific medical facts (e.g., laboratory findings) and 

nonmedical evidence (e.g., daily activities, observations). In assessing 

RFC, the adjudicator must discuss the individual's ability to perform 

sustained work activities in an ordinary work setting on a regular and 

continuing basis (i.e., 8 hours a day, for 5 days a week, or an 

equivalent work schedule), and describe the maximum amount of each 

work-related activity the individual can perform based on the 

evidence available in the case record. The adjudicator must also 

explain how any material inconsistencies or ambiguities in the 

evidence in the case record were considered and resolved. 

S.S.R. 96-8p, 1996 WL 374184, at *7 (emphases added and internal footnote 

omitted). In fact, the ALJ’s Step 4 RFC determination is organized into a 

summary of Plaintiff’s testimony (R. at 19) and a review of “other evidence of 

record,” basically an extensive discussion of the medical record (R. at 19-23). This 

is followed by paragraphs describing why the ALJ reached his conclusions as to 

many of the limitations appearing in the Step 4 RFC determination. (R. at 23-24.) 

Also, the ALJ’s Step 4 RFC determination noted both that Plaintiff’s “back 

condition deteriorated prior to the date last insured, to the extent that he was 

limited to sitting for approximately two hours in a normal eight-hour workday[,]” 

and that Plaintiff “[p]rior to the date last insured . . . could stand and/or walk for 

approximately six hours, and sit for approximately two hours, in a normal eighthour workday.” (R. at 23-24 (emphasis added).) Also, as discussed in more detail 

below with respect to credibility, the ALJ found Plaintiff’s allegations regarding 

limitations “significantly inconsistent with the record prior to the date last 

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insured.” (R. at 25 (emphasis added).) The ALJ’s Step 4 RFC determination 

having complied with the considerations set forth in SSR 96-8p, the Court should 

dismiss Plaintiff’s general challenge regarding the ALJ’s compliance with this 

regulation. 

b. The ALJ’s RFC determination was supported by 

substantial evidence. 

Plaintiff’s more specific challenges to the ALJ’s Step 4 RFC determination 

are also fruitless. As noted above, the ALJ determined that Plaintiff had the RFC 

to perform “light work,” except that Plaintiff had certain postural limitations

(could not “climb ladders, ropes, or scaffolds;” could only occasionally “climb 

ramps or stairs, balance, stoop, crouch, and kneel;” could not crawl;), certain 

manipulative limitations (could not “constantly perform overhead reaching, 

handling, or fingering with the right upper extremity;”) and certain environmental 

limitations (should “avoid all exposure to unprotected heights.”). (R. at 18.) 

Here, Plaintiff argues that the ALJ’s RFC “is contradictory to his severe 

impairment findings[,]” apparently questioning the ALJ’s treatment of exertional 

limitations and non-exertional limitations. (DE 12 at 11, 14.)7

 In particular, 

 

7

 Exertional limitations include lifting, carrying, standing, walking, sitting, pushing 

and pulling. 20 C.F.R. §§ 404.1569a(b), 416.969a(b). Non-exertional limitations 

include difficulty (i) “functioning because you are nervous, anxious, or depressed;” 

(ii) “maintaining attention or concentrating;” (iii) “understanding or remembering 

detailed instructions;” (iv) “in seeing or hearing;” (v) “tolerating some physical 

feature(s) of certain work settings[;]” or (vi) “performing the manipulative or 

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Plaintiff challenges the alleged inconsistency between the ALJ’s Step 2 severe 

impairment findings - (1) degenerative disc disease L5-S1 post laminectomy, (2) 

status post third degree burn, right wrist; (3) status post ORIF ankle fracture; (4) 

obesity, and (5) avascular necrosis, right hip – and (a) the lifting, standing and 

walking exertional requirements of light work (including the constant use of 

bilateral hands and feet) and (b) the manipulative limitations of handling and 

fingering with his right dominant hand. (DE 12 at 11-12.) 

At the outset, I note that the ALJ took at least some of Plaintiff’s nonexertional limitations into consideration when he included the multiple foregoing 

postural (regarding climbing, balancing, stooping, kneeling, crouching and 

crawling) and manipulative limitations (reaching, handling and fingering), thus 

acknowledging that Plaintiff had at least some “difficulty performing the 

manipulative or postural functions of some work such as reaching, handling, 

stooping, climbing, crawling, or crouching[,]” see 20 C.F.R. §§ 

404.1569a(c)(1)(vi), 416.969a(c)(1)(vi). Still, each of Plaintiff’s specific 

complaints will be addressed here. 

i. Plaintiff’s challenges to the light work 

exertional limitations of lifting, standing and 

walking 

 

postural functions of some work such as reaching, handling, stooping, climbing, 

crawling, or crouching.” 20 C.F.R. §§ 404.1569a(c), 416.969a(c). 

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The regulations define the physical exertional requirements of light work as 

follows: 

Light work involves lifting no more than 20 pounds at a time with 

frequent lifting or carrying of objects weighing up to 10 pounds. 

Even though the weight lifted may be very little, a job is in this 

category when it requires a good deal of walking or standing, or 

when it involves sitting most of the time with some pushing and 

pulling of arm or leg controls. To be considered capable of 

performing a full or wide range of light work, you must have the 

ability to do substantially all of these activities. If someone can do 

light work, we determine that he or she can also do sedentary work, 

unless there are additional limiting factors such as loss of fine 

dexterity or inability to sit for long periods of time. 

20 C.F.R. §§ 404.1567(b), 416.967(b) (emphases added); see also SSR 83-10 

(S.S.A. 1983.)8

 

The ALJ found that, prior to the date last insured of June 30, 2010, Plaintiff 

“could lift, carry, push, and pull up to 20 pounds occasionally and up to 10 pounds 

frequently.” (R. at 23.) The ALJ supported this conclusion by citing Plaintiff’s 

January 12, 1995 decompressive lumbar laminotomy (R. at 364-366), as well as 

 

8

 “Frequent” means “occurring from one-third to two-thirds of the time. Since 

frequent lifting or carrying requires being on one's feet up to two-thirds of a 

workday, the full range of light work requires standing or walking, off and on, for 

a total of approximately 6 hours of an 8-hour workday. Sitting may occur 

intermittently during the remaining time. The lifting requirement for the majority 

of light jobs can be accomplished with occasional, rather than frequent, stooping. 

Many unskilled light jobs are performed primarily in one location, with the ability 

to stand being more critical than the ability to walk. They require use of arms and 

hands to grasp and to hold and turn objects, and they generally do not require use 

of the fingers for fine activities to the extent required in much sedentary work.” 

SSR 83-10.

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Plaintiff’s documented back pain history, with citations to multiple treatment 

records from 2005 through 2013 (R. at 218-221, 306-353, 367-373). In addition, 

the ALJ acknowledged the June through July 2007 records from Detroit Receiving 

Hospital (R. at 229-239) and Dr. White’s July 3, 2007 operative notes regarding 

Plaintiff’s right extremity 3rd degree burns. (R. at 275-277). The ALJ also cited 

the February 15, 2008 progress notes, indicating that Plaintiff was independent 

with his activities of daily living (R. at 284.) Therefore, with respect to light 

work’s exertional limitation on lifting, it cannot be said that the ALJ did not 

describe “how the evidence supports each conclusion, citing specific medical facts 

(e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, 

observations).” SSR 96-8p. 

The Court should reach the same conclusion as to the ALJ’s light work 

exertional limitations on standing and walking. Within his Step 4 RFC 

determination, the ALJ found that, prior to the date last insured, Plaintiff “could 

stand and/or walk for approximately six hours, and sit for approximately two 

hours, in a normal eight-hour workday.” (R. at 24.) As to this conclusion, the ALJ 

pointed to the operative report from Plaintiff’s October 12, 1996 ankle procedure 

(R. at 213-215), the July 10, 2009 notes regarding a left hip contusion (R. at 331), 

and the April 16, 2010 progress notes that Plaintiff’s gait was coordinated and 

smooth, there was no pain or crepitus of joints and no weakness, asymmetry or 

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21

atrophy (R. at 324).9

 Moreover, while the ALJ acknowledged the July 31, 2012 

progress notes, which seemingly indicate right hip avascular necrosis (R. at 372), 

the ALJ further observed that this occurred after the June 30, 2010 expiration of 

Plaintiff’s insured status. Here, too, with respect to light work’s exertional 

limitations on standing and walking, the ALJ did in fact describe his decision in 

accordance with SSR 96-8p.10

 

9

 Elsewhere in the ALJ’s Step 4 determination, he acknowledged Dr. Barnett’s 

May 31, 2006, March 7, 2007, April 16, 2010 and July 25, 2011 observations that 

Plaintiff’s gait was coordinated and smooth. (R. at 19-20, 22, 218, 312, 324, 346). 

The ALJ further acknowledged Dr. Barnett’s November 11, 2009 notes that 

Plaintiff was generally doing well. (R. at 22, 327.) 

10 Even though it is not specifically challenged in Plaintiff’s motion, a brief note 

about the light work exertional limitation of sitting is warranted here, as one of 

Plaintiff’s arguments is that the ALJ does not make “corresponding” limitations in 

the Step 4 RFC determination. (DE 12 at 11.) On August 8, 2013, Plaintiff 

testified about his ability to sit for one hour “to two at the most[,]” after his June 

2007 burn, but also stated “that was before it progressively got worse[,]” between 

2009 and 2010. (See R. at 43-46; see also R. at 47.) In the September 16, 2013 

decision, the ALJ observed that “[e]vidence received at the hearing level . . . shows 

that the claimant is more limited than Dr. McLarnon determined with respect to the 

claimant's residual functional capacity for sitting[,]” and had the objectivity to 

further explain that the medical evidence and Plaintiff’s testimony support a 

finding that his “back condition deteriorated prior to the date last insured [June 30, 

2010], to the extent that he was limited to sitting for approximately two hours in a 

normal eight-hour workday.” (R. at 23; see also R. at 24.) 

To be sure, the RFC does not contain any further exertional restrictions on 

sitting, other than the definition of light work, which does not provide a clear 

limitation on sitting. (See R. at 18, 20 C.F.R. §§ 404.1567(b), 416.967(b).) 

Nonetheless, this “omission,” alone, is not a cause for remand. First, the light jobs 

about which the VE testified (parking lot attendant, usher and office helper) were 

each classified as “unskilled,” and “[r]elatively few unskilled light jobs are 

performed in a seated position.” (R. at 26, 50-51, SSR 83-10 (1983)); see also 

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ii. Plaintiff’s challenges to the manipulative 

limitations of handling and fingering 

The ALJ found that, prior to the date last insured, Plaintiff “could not 

constantly perform overhead reaching, handling, or fingering with the right upper 

extremity . . . .” (R. at 24.) As justification for this finding, the ALJ specifically 

referred to the March 7, 2008 notes that that skin at the site of the graft was healed 

and Plaintiff had 4/5 strength in his right hand and fingers (R. at 243-244), 

observed that between October 3, 2007 and January 4, 2008, Plaintiff’s right grip 

strength improved from 225 kg to 340 kg (R. at 295-296, 287-288), and noted that 

by May 2008, Plaintiff had full range of motion in his right hand, wrist and fingers 

(R. at 241-242, 336). The ALJ also acknowledged that the January 4, 2008 

physical therapy notes reflect right arm pain (pain in his right wrist and fingers 

 

Short v. Dep’t of Health and Human Servs., No. 91-5897, 1992 WL 92790 (May 4, 

1992), Robinson v. Sec'y of Health & Human Servs., No. 93-3330, 1994 WL 

263905, *2-*3 (6th Cir. June 15, 1994).) Second, even though “a job is in [the 

light work] category when it requires a good deal of walking or standing, or when 

it involves sitting most of the time with some pushing and pulling of arm or leg 

controls,” 20 C.F.R. §§ 404.1567(b), 416.927(b) (emphasis added), “the full range 

of light work requires standing or walking, off and on, for a total of approximately 

6 hours of an 8-hour workday[,]” and “[s]itting may occur intermittently during the 

remaining time[,]” SSR 83-10 (1983), which would be two hours. Moreover, the 

ALJ’s RFC of light work includes “lifting no more than 20 pounds at a time with 

frequent lifting or carrying of objects weighing up to 10 pounds[,]” and the 6 hours 

standing and/or walking and 2 hours sitting described above. (R. at 23; 20 C.F.R. 

§§ 404.1567(b), 416.927(b); SSR 83-10), which appears to be more restrictive than 

that imposed by Dr. McLarnon, i.e., lift and/or carry 20 pounds occasionally and 

20 pounds frequently, stand and/or walk for a total of 6 hours and sit for a total of 6 

hours (R. at 360, see also R. at 61). 

 

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23

when gripping or moving his wrist, and palpation “elicits generalized tenderness 

over right hand and forearm with sensitivity to touch”) and problems holding on to 

objects with the right hand (functional limitations with gripping, holding objects in 

the right hand). (R. at 24, 287-288.) 

Plaintiff appears to argue that the ALJ’s Step 2 findings of “degenerative 

disc disease L5-S1 post laminectomy” and “status post ORIF ankle fracture” 

and/or that the ALJ’s Step 4 RFC exertional limitation to “light work” (which he 

contends requires walking and lifting objects for most of the day), contradicts the 

ALJ’s Step 4 RFC manipulative limitation that Plaintiff “could not constantly 

perform overhead reaching, handling, or fingering with the right upper extremity . . 

. .” (DE 12 at 11, R. at 17-18, 24.) It is unclear what the purported contradiction 

is, and Plaintiff’s brief is devoid of explanation; however, as with my conclusions 

regarding Plaintiff’s challenges to the ALJ’s exertional limitations, the ALJ did 

comply with the regulations, by describing “how the evidence supports each 

conclusion [as to the manipulative limitations], citing specific medical facts (e.g., 

laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” 

SSR 96-8p. Not having met his burden to successfully challenge the ALJ’s Step 4 

determination, the ALJ’s manipulative limitations should stand. 

iii. Plaintiff’s challenge to the ALJ’s assignment of 

weight to the treating source opinion 

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 Finally, the Court should address Plaintiff’s challenge to the “limited 

weight” assigned to treating physician Dr. White’s July 17, 2008 opinion – 

specifically that the ALJ committed error by failing to adopt Dr. White’s 

limitations as to lifting and use of the right hand. (See DE 12 at 11, 14, R. at 21, 

278.) The SSA’s assignment of weight to medical opinions is governed by 20 

C.F.R. §§ 404.1527(c), 416.927(c). Generally, more weight is given to treating 

source opinions, “since these sources are likely to be the medical professionals 

most able to provide a detailed, longitudinal picture of your medical impairment(s) 

and may bring a unique perspective to the medical evidence that cannot be 

obtained from the objective medical findings alone or from reports of individual 

examinations, such as consultative examinations or brief hospitalizations.” 20 

C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). 

Dr. White summarized Plaintiff’s long-term prognosis as including “some

residual impairment in fine motor activity of his right hand,” and having 

“limitations in his ability to lift over 10 lbs.” (R. at 278 (emphases added).) Dr. 

White further opined that Plaintiff would be “limited in his ability to perform 

repetitive movements with his right hand and upper extremity[.]” (R. at 278 

(emphasis added).) The ALJ found “that Dr. White's opinion is otherwise vague, 

and it does not meet the criteria of SSR 96-8p as a function-by-function analysis of 

the claimant's limitations.” (R. at 22.) As alluded to above, I agree. 

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The ALJ properly analyzed Dr. White’s opinion in accordance with the 

opinion evidence regulation. “When we do not give the treating source's opinion 

controlling weight, we apply the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) 

of this section, as well as the factors in paragraphs (c)(3) through (c)(6) of this 

section in determining the weight to give the opinion. We will always give good 

reasons in our notice of determination or decision for the weight we give your 

treating source's opinion.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). 

Although Plaintiff contends that “[t]here was nothing vague in Dr. White 

stating the Plaintiff should not be trying to lift over 10 pounds and should not be 

doing repetitive movements with his right hand[,]” (DE 12 at 14), the 

Commissioner correctly points out that “limitations” could mean that Plaintiff 

“cannot lift more than ten pounds on a frequent basis.” (DE 14 at 15.) Thus, the 

ALJ considered the supportability of Dr. White’s opinion, a consideration that is 

permitted by the appropriate regulation. See 20 C.F.R. §§ 404.1527(c)(3), 

416.927(c)(3); see also Pompos v. Comm'r of Soc. Sec., No. 3:12 CV 2276, 2013 

WL 8116891, at *7 (N.D. Ohio Nov. 22, 2013), report and recommendation 

adopted, No. 3:12-CV-2276, 2014 WL 1154247 (N.D. Ohio Mar. 21, 2014) (“the 

ALJ properly noted the opinion was ‘vague’, and therefore lacked support. § 

404.1527(c)(3).”). I further note that the opinion refers to “some” residual 

impairment in right hand fine motor activity, which is also vague. (R. at 278.) 

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The ALJ also assigned limited weight to this opinion on the basis that it was 

“not well supported by either the objective or other substantial evidence of record 

relative to exertional limitations,” because: 

Plaintiff’s “muscle strength at the right wrist was not significantly 

impaired . . ., when it was measured at 4/5[,]” citing the January 4, 

2008 Physical Therapy Evaluation notes (R. at 287-288); and 

 

Plaintiff “voiced no pain complaints [regarding his burn] as of May 9, 

2008[,]” citing the same-day Burn Center Ambulatory Service 

Interdisciplinary Clinic Follow-Up notes (R. at 241-242).11

(R. at 21-22.) Thus, the ALJ concluded that Dr. White’s opinion was inconsistent 

with the record as a whole, another consideration that is permitted by the 

appropriate regulation. See 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4); see also 

Bogle v. Sullivan, 998 F.2d 342, 347-48 (6th Cir. 1993) (“the Secretary is not 

bound by the treating physician's opinions, and . . . such opinions receive great 

weight only if they are supported by sufficient clinical findings and are consistent 

with the evidence.”). 

iv. “Significant weight” was assigned to the opinion 

of Dr. McLarnon (non-examining state agency 

physician) 

Instead, the ALJ appropriately accorded “significant weight” to the October 

22, 2012 case analysis of non-examining state agency physician Mary McLarnon, 

M.D. (See R. at 23, 360 [Ex. 15F].) The weight given to nonexamining sources 

 

11 These notes do document “back pain/unrelated to burn[.]” (R. at 242.) 

4:15-cv-11062-TGB-APP Doc # 17 Filed 07/29/16 Pg 26 of 34 Pg ID 480
27

“will depend on the degree to which they provide supporting explanations for their 

opinions.” 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3). Furthermore, the SSA 

“will evaluate the degree to which these opinions consider all of the pertinent 

evidence in [the] claim, including opinions of treating and other examining 

sources.” Id. 

The ALJ’s reliance on Dr. McLarnon’s opinion is in accordance with this 

regulation. Dr. McLarnon appears to have opined that, from June 2007 to 

February 2012, Plaintiff had the ability to (a) lift and/or carry 20 pounds 

occasionally, (b) lift and/or carry 20 pounds frequently, (c) stand and/or walk for 6 

hours in an 8 hour work day, and (d) sit for 6 hours in an 8 hour work day, but (e) 

could only handle and finger frequently with the right hand. (See R. at 360 [“RFC 

20/20; 6; 6[.]”]; see also R. at 61.)12 However, she also noted that, in July 2008, 

Plaintiff was able to carry 10 pounds with his right upper extremity (RUE), 

although he had some limitation in fine and rapid movements. (R. at 360.)13 

 

12 The lifting and carrying limitations are consistent with “light work.” 20 C.F.R. 

§§ 404.1567(b), 416.967(b) (“Light work involves lifting no more than 20 pounds 

at a time with frequent lifting or carrying of objects weighing up to 10 pounds.”) 

(emphases added). 

13 The bases for Dr. McLarnon’s October 22, 2012 case analysis (as it relates to 

the period from June 2007 to February 2012) appear to be: (a) Shores Care 

Progress notes from December 22, 2011 and March 23, 2012, which note “refer for 

PT” and “re start PT” (R. at 309, 307); (b) records concerning July 2007 surgery 

for “[t]hird degree burns to right dorsum of hand and right forearm and distal 

arm[,]” (R. at 235-237; see also R. at 275-277); and (c) Michael T. White, M.D.’s 

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In assigning “significant weight” to Dr. McLarnon’s opinion, the ALJ 

expressly observed that May 5, 2008 and May 9, 2008 progress and follow-up 

notes indicated full range of motion in the right finger(s), hand and wrist. (R. at 23, 

242, 336.) Thus, although she was a non-examining physician, the ALJ properly 

credited Dr. McLarnon’s opinion by citing medical records which support her 

conclusion that Plaintiff was capable of frequent handling and fingering with the 

right upper extremity or, as phrased in the RFC, “cannot constantly perform 

overhead reaching, handling, or fingering with the right upper extremity[.]” (R. at 

18.) 

c. The RFC finding should be affirmed. 

Plaintiff’s challenges to the ALJ’s Step 4 RFC limitations are unavailing. 

Moreover, the ALJ properly discounted the opinion of treating physician Dr. White 

and appropriately credited the opinion of non-examining state agency physician 

Dr. McLarnon. “[D]uring the first four steps, the claimant has the burden of proof; 

this burden shifts to the Commissioner only at Step Five.” Walters v. Comm'r of 

Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). Here, Plaintiff has failed to meet this 

burden. Moreover, as set forth above, the ALJ adequately explained and supported 

 

July 17, 2008 letter stating that Plaintiff’s “long-term prognosis includes some 

residual impairment in fine motor activity of his right hand, as well as limitations 

in his ability to lift over 10 lbs. He will also be limited in his ability to perform 

repetitive movements with his right hand and upper extremity[,]” (R. at 278). 

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29

his decision, which was supported by substantial evidence. Therefore, the ALJ’s 

Step 4 RFC determination should stand. 

3. Substantial evidence supports the ALJ’s assessment of 

Plaintiff’s credibility. 

Plaintiff challenges the ALJ’s credibility determination. (See DE 12 at 5, 8, 

10.) The standard of review requires that an ALJ's assessment of credibility be 

given “great weight and deference, since he [or she] had the opportunity to observe 

the witness's demeanor.” Infantado v. Astrue, 263 F. App’x 469, 475 (6th Cir. 

2008). Nevertheless, “an ALJ's assessment of a claimant's credibility must be 

supported by substantial evidence.” Walters, 127 F.3d at 531. 

Credibility challenges are further guided by the Social Security 

Administration’s regulations concerning the evaluation of symptoms, including 

pain. 20 C.F.R. §§ 404.1529, 416.929; see also SSR 96-7p (“Assessing The 

Credibility Of An Individual's Statements”). Among other things, these 

regulations provide that “[f]actors relevant to your symptoms, such as pain, which 

we will consider include: 

(i) Your daily activities; 

(ii) The location, duration, frequency, and intensity of your pain or 

other symptoms; 

(iii) Precipitating and aggravating factors; 

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30

(iv) The type, dosage, effectiveness, and side effects of any 

medication you take or have taken to alleviate your pain or 

other symptoms; 

(v) Treatment, other than medication, you receive or have received 

for relief of your pain or other symptoms; 

(vi) Any measures you use or have used to relieve your pain or 

other symptoms (e.g., lying flat on your back, standing for 15 to 

20 minutes every hour, sleeping on a board, etc.); and 

(vii) Other factors concerning your functional limitations and 

restrictions due to pain or other symptoms. 

20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). 

 The Court should find that Plaintiff’s credibility argument lacks merit. First, 

the ALJ adequately applied the 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) factors. 

Within his Step 4 RFC determination, the ALJ found that statements concerning 

the intensity, persistence and limiting effects of Plaintiff’s alleged symptoms were 

not entirely credible. (R. at 24-25.) Specifically, the ALJ found that Plaintiff’s 

allegations regarding limitations were “significantly inconsistent with the record 

prior to the date last insured[,]” explaining as follows: 

First, the objective evidence of record weighs heavily against the 

claimant's allegations, as set forth above. The record reflects no 

significant longitudinal treatment history after May 2008 and prior to 

the date last insured (Ex. 6F, pp. 2, 3)[14] to address the claimant's 

severe impairments affecting the right upper extremity, spine, and/or 

hip. When a claimant alleges a condition severe enough to be 

 

14 Here, the ALJ referenced the May 2008 or July 2008 follow-up notes from the 

Burn Center Ambulatory Service Interdisciplinary Clinic. (R. at 241-242.) 

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31

disabling, there is a reasonable expectation that he will seek 

examination and treatment. The claimant's failure to seek treatment, 

other than analgesic medication, reflects poorly on his credibility and 

the assertions that the condition was disabling prior to the date last 

insured. [See 20 C.F.R. §§ 404.1529(c)(3)(v), 416.929(c)(3)(v).] 

***** 

When considering the claimant's daily activities that included laundry, 

driving, and studying college level academic materials that culminated 

in the award of an associate's degree, I find the claimant is capable of 

work as set forth in more detail in the residual functional capacity, 

particularly noting the absence of any significant longitudinal 

treatment history to the contrary. [See 20 C.F.R. §§ 

404.1529(c)(3)(i), 416.929(c)(3)(i).] 

Further, the residual functional capacity addresses demands that might 

exacerbate the claimant's symptomatology, as well as having 

considered the location, duration, frequency, and intensity of the 

symptomatology. [See 20 C.F.R. §§ 404.1529(c)(3)(ii), 

416.929(c)(3)(ii).] 

In addition, the documentary evidence of record fails to indicate any 

significant side effects from medications. [See 20 C.F.R. §§ 

404.1529(c)(3)(iv), 416.929(c)(3)(iv).] 

(R. at 25.)15 Thus, it is clear that the ALJ expressly considered many of the factors 

set forth to evaluate the “the intensity and persistence of [Plaintiff’s] symptoms, 

such as pain,” 20 C.F.R. § 404.1529(c), and Plaintiff’s contention that the ALJ 

 

15 Within his explanation, the ALJ incorrectly states that “although the claimant 

was instructed to wear a pressure garment until approximately November 2008[], 

Mr. Wudzinski testified that he discontinued same in early 2008.” (R. at 25.) The 

Court suspects the ALJ was referring to Plaintiff’s testimony that “as of early 

2008, he did not elevate his right upper extremity, and within nine to 10 months 

after the June 2007 accident, he could do laundry and empty the dishwasher.” (R. 

at 24 (emphasis added); see also R. at 40-45.) 

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32

“never discusses or evaluates Mr. Wudzinski’s subjective complaints . . .” under 

this subsection (DE 12 at 13) lacks merit. 

Second, Plaintiff’s assertion that the ALJ committed “legal error” by never 

factoring or even attempting to factor Plaintiff’s “severe fatigue, severe pain, need 

to lie down, or severe medication side effects[,]” see DE 12 at 12-14, also lacks 

merit. As an initial matter, even if the ALJ did not expressly mention fatigue or 

Plaintiff’s testimony about sleeping or needing to lie down (see R. at 41, 44-48), 

the ALJ’s decision does note the functional limitation of sleeping recorded in the 

October 3, 2007 physical therapy notes. (R. at 20, 295-296.) Likewise, given the 

phrasing of the ALJ’s third hypothetical to the VE (as to needing extended or 

additional breaks beyond those traditionally granted in unskilled work - whether to 

lie down, walk away, or be off task), it is clear the ALJ considered the issue of rest 

in forming his decision. (See R. at 52.) 

More importantly, contrary to Plaintiff’s assertion, the ALJ in fact 

referenced pain multiple times throughout the Step 4 RFC determination. For 

example, the ALJ’s summary of Plaintiff’s testimony expressly cites elbow pain 

and back pain (R. at 19), and the ALJ’s discussion of the medical record is littered 

with references to pain, including the assertion that Plaintiff’s chronic pain was 

evaluated consistent with SSR 03-2p (R. at 19-23). Finally, the ALJ acknowledged 

Plaintiff’s testimony that his medication side effects included “stomach issues and 

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33

lower abdominal/groin pain[,]” and, as noted above, ultimately concluded that “the 

documentary evidence of record fails to indicate any significant side effects from 

medications.” (R. at 19, 25.) 

Plaintiff has the burden of proof in a challenge to the ALJ’s Step 4 RFC 

determination. See Walters, 127 F.3d at 529. As illustrated above, neither of 

Plaintiff’s challenges to the ALJ’s credibility assessment has merit. Therefore, the 

ALJ’s credibility determination should not be overturned. 

G. Conclusion

 In sum, the Undersigned concludes that substantial evidence supports the 

ALJ’s decision denying benefits. Accordingly, it is RECOMMENDED that the 

Court DENY Plaintiff’s motion for summary judgment, GRANT Defendant’s 

motion for summary judgment, and AFFIRM the Commissioner of Social 

Security’s decision. 

III. PROCEDURE ON OBJECTIONS

 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 & 

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some 

4:15-cv-11062-TGB-APP Doc # 17 Filed 07/29/16 Pg 33 of 34 Pg ID 487
34

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 & 

Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of 

Teachers Local 231, 829 F.2d 1370, 1273 (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,” and “Objection No. 

2,” etc. Any objection must recite precisely the provision of this Report and 

Recommendation 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); E.D. Mich. LR 

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. 

Dated: July 29, 2016 s/Anthony P. Patti 

 Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

I hereby certify that a copy of the foregoing document was sent to parties of record 

on July 29, 2016, electronically and/or by U.S. Mail. 

 s/Michael Williams 

 Case Manager for the 

 Honorable Anthony P. Patti 

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