UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

REGINA M. WAGNER,

CASE NO. 15-11553

Plaintiff, DISTRICT JUDGE DENISE P. HOOD

v. MAGISTRATE JUDGE PATRICIA T. MORRIS

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

___________________________/

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION ON CROSS 

MOTIONS FOR SUMMARY JUDGMENT (Docs. 17, 18)

I. RECOMMENDATION

In light of the entire record in this case, I suggest that substantial evidence 

supports the Commissioner’s determination that Wagner is not disabled. Accordingly, IT 

IS RECOMMENDED that Wagner’s Motion for Summary Judgment (Doc. 17) be 

DENIED, that the Commissioner’s Motion for Summary Judgment (Doc. 18) be 

GRANTED, and that this case be AFFIRMED.

II. REPORT

A. Introduction and Procedural History

Pursuant to 28 U.S.C. § 636(b)(1)(B), E.D. Mich. LR 72.1(b)(3), and by Notice of 

Reference, this case was referred to the undersigned magistrate judge for the purpose of 

reviewing a final decision by the Commissioner of Social Security (“Commissioner”)

denying Plaintiff’s claims for the Disability Insurance Benefits (“DIB”) program of Title 

II, 42 U.S.C. § 401 et seq. and the Supplemental Security Income (“SSI”) program of 

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Title XVI, 42 U.S.C. § 1381 et seq. (Doc. 6; Tr. 1-3). The matter is currently before the 

Court on cross-motions for summary judgment. (Docs. 17, 18).

Plaintiff Regina Wagner was thirty-seven years old as of January 13, 2010, her 

amended date of alleged disability. (Tr. 14). Her applications for benefits were initially 

denied on March 9, 2012. (Tr. 46-60). Wagner requested a hearing before an 

Administrative Law Judge (“ALJ”), which took place before ALJ John J. Rabaut on 

September 10, 2013. (Tr. 25-45). Wagner, represented by attorney Jordan Leming, 

testified, as did vocational expert (“VE”) Diane Regan. (Id.). On January 10, 2014, the 

ALJ issued a written decision in which he found Wagner not disabled. (Tr. 9-19). On 

October 21, 2014, the Appeals Council denied review. (Tr. 1-3). Wagner filed for judicial 

review of that final decision on April 29, 2015. (Doc. 1). 

B. Standard of Review

The district court has jurisdiction to review the Commissioner’s final 

administrative decision pursuant to 42 U.S.C. § 405(g). The district court’s review is 

restricted solely to determining whether the “Commissioner has failed to apply the 

correct legal standard or has made findings of fact unsupported by substantial evidence in 

the record.” Sullivan v. Comm’r of Soc. Sec., 595 F. App’x 502, 506 (6th Cir. 2014) 

(internal citations omitted). 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 v. Comm’r of Soc. Sec., 486 F.3d 234, 241 

(6th Cir. 2007) (internal quotations omitted). 

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The Court must examine the administrative record as a whole, and may consider 

any evidence in the record, regardless of whether it has been cited by the ALJ. See 

Walker v. Secretary of Health and Human Services, 884 F.2d 241, 245 (6th Cir. 1989). 

The Court will not “try the case de novo, nor resolve conflicts in the evidence, nor decide 

questions of credibility.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 

(6th Cir. 1994). If the Commissioner’s decision is supported by substantial evidence, “it 

must be affirmed even if the reviewing court would decide the matter differently and 

even if substantial evidence also supports the opposite conclusion.” Id. at 286 (internal 

citations omitted). 

C. Framework for Disability Determinations

Under the Act, “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 the 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 

[twelve] months.

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); 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 . . . 

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physical or mental ability to do basic work activities,” benefits 

are denied without further analysis.

Step Three: If the claimant 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.

20 C.F.R. §§ 404.1520, 416.920. See also Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 

534 (6th Cir. 2001). “Through step four, the claimant bears the burden of proving the 

existence and severity of limitations caused by [his or] her impairments and the fact that 

she is precluded from performing [his or] her past relevant work.” Jones v. Comm’r of 

Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). The burden transfers to the Commissioner if 

the analysis reaches the fifth step without a finding that the claimant is not disabled. 

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 [the claimant] could perform given [his or] her RFC [residual 

functional capacity] and considering relevant vocational factors.” Rogers, 486 F.3d at 241 

(citing 20 C.F.R. §§ 416.920(a)(4)(v), (g)).

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D. ALJ Findings

Following the five-step sequential analysis, the ALJ found Wagner not disabled 

under the Act. (Tr. 19). The ALJ found at Step One that Wagner had not engaged in 

substantial gainful activity following the alleged onset date, January 13, 2010. (Tr. 14).

At Step Two, the ALJ concluded that Wagner had the following severe impairments: 

“scoliosis; cervical and lumbar degenerative disc disease/osteoarthritis; right ulnar 

neuropathy; and history of tobacco abuse.” (Tr. 15). At Step Three, the ALJ found that 

Wagner’s combination of impairments did not meet or equal one of the listings in the 

regulations. (Tr. 15). The ALJ then found that Wagner had the residual functional 

capacity (“RFC”) to perform light work, except that Wagner “cannot climb ladders, ropes 

or scaffolds . . . can occasionally climb ramps and stairs . . . can occasionally balance, 

stoop, kneel, crouch, and crawl . . . [and] should avoid all exposure to unprotected 

heights.” (Tr. 15). At Step Four, the ALJ found that Wagner was able to return to her past 

relevant work as either a housekeeper or cashier. (Tr. 19). As a result, the ALJ found 

Wagner not disabled under the Act. (Tr. 19). 

E. Administrative Record

1. Medical Evidence

In November 2004 Wagner complained of back pain; an MRI showed evidence of 

thoracic radiculopathy, along with scoliosis and degenerative disc disease. (Tr. 286). 

Wagner again sought treatment for chronic back pain in October 2009. (Tr. 237). 

In November 2009 Wagner underwent a neurology consultation with Dr. Demian 

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Naguib. (Tr. 264). Wagner complained of low back pain extending into the left lower 

extremities, along with midthoracic pain extending into the shoulders bilaterally. (Id.). 

She rated her pain as eight out of ten. (Id.). In December 2009 Wagner was informed that, 

on a periodic basis, she should not drive, due to her medical conditions. (Tr. 267). 

Wagner underwent a CT scan of her lumbar spine in January 2010; it was noted 

that she had a history of scoliosis. (Tr. 231). The scan revealed multilevel disc bulges 

with mild anterior thecal sac compression, no evidence of canal stenosis, and some hard 

calcification within the longitudinal ligament posterior to the T11/12 level, with mild 

anterior thecal sac compression. (Id.). Also in January 2010 Wagner visited several times 

with Dr. Naguib, who diagnosed low back pain syndrome, spondylosis, disc disease, and 

radiculopathy, along with muscle spasms and joint osteoarthritis. (Tr. 368-75). Dr. 

Naguib administered an epidural steroid injection. (Id.). Dr. Naguib performed a needle 

electromyography (“EMG”) study which revealed no significant findings. (Tr. 375).

In March 2010 Dr. Naguib found that Wagner was suffering from low back pain 

syndrome, spondylosis, and radiculopathy; she experienced a thirty to fifty percent 

improvement in her pain from the use of an epidural steroid injection. (Tr. 361). Later 

that month Dr. Naguib wrote that Wagner received a sixty-percent reduction of her pain 

from the administration of an epidural steroid injection. (Tr. 353-54). 

In July 2010, Dr. Naguib recorded complaints of low back pain, and found 

evidence of degenerative disc disease and spondylosis. (Tr. 348). He performed an

epidural steroid injection. (Id.). 

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In August 2010 Wagner reported to Dr. Naguib that pain reliving injections helped 

to reduce her pain to a “mild” level. (Tr. 279). During another visit that month, Dr. 

Naguib performed an epidural steroid injection for the treatment of Wagner’s intractable 

low back pain, lumbar facet spondylosis, degenerative disc disease, and spondylosis. (Tr. 

340). Later that month, Dr. Naguib performed an EMG test which revealed normal results 

in all muscle groups, without evidence of acute radiculopathy, plexopathy, or myopathy. 

(Tr. 328). Dr. Naguib concluded that Wagner’s pain was “mainly because of lumbar 

degenerative disk disease with picture of facet joint spondylosis.” (Id.). 

In October 2010, Dr. Naguib found that an epidural steroid injection provided 

Wagner with fifty-percent improvement in her back pain for three weeks, but that the 

pain returned and felt “bilateral, dull, deep.” (Tr. 322). Wagner’s pain was “aggravated 

by rest,” twisting, extension, or rotation, but was relieved by flexion. (Tr. 323). A lumbar 

facet joint block was performed to relieve pain resulting from facet joint spondylosis. 

(Id.). 

In February 2011 Dr. Naguib recorded complaints of chronic back pain that 

radiated into the posterior of the lower extremities, discogenic pain, facet arthrosis, disc 

bulges as L5/S1 and L4/L5. (Tr. 308). Dr. Naguib prescribed the narcotic pain reliever 

Norco and suggested epidural steroid injections. (Tr. 309). 

In March 2011 Dr. Naguib noted chronic and intractable back pain, degenerative 

disc disease, along with a disc bulge in the L5/S1 and L4/L5 region. (Tr. 299). A lumbar 

epidural steroid injection was performed. (Id.). Dr. Naguib noted that Wagner’s urine was 

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positive for marijuana, but was negative for Norco, showing that she was apparently not 

taking her pain relieving medication.1 (Tr. 300). Later that month, Wagner reported a 

forty-percent improvement in her pain since her last injection, but reported that her leg 

pain caused sleep issues, that she experienced neuropathy in her arms, and pain in her 

neck. (Tr. 302). 

In June 2011 Dr. Naguib noted complaints of “[c]hronic widespread fibromyalgiac 

myofascial pain syndrome,” “bilateral lower extremity tingling, numbness and 

paresthesia with bilateral upper extremity tingling, numbness and paresthesia,” along 

with “[t]horacic degenerative disc disease,” migraine, and occipital neuritis. (Tr. 294). 

Dr. Naguib recorded that the narcotic pain reliever Norco was not helping Wagner, thus 

she was switched to Vicodin. (Id.). Wagner complained of chronic, severe neck pain, 

which was constant, increased by activity, and decreased by use of a TENS unit and 

medications. (Id.). Wagner had “5/5 strength in all 4 extremities,” but had “trigger point 

tenderness” and “tenderness on palpation of the thoracic area and cervical area.” (Id.). 

Wagner’s diagnosis was of chronic thoracic pain, thoracic degenerative disc disease, 

cervical and lumbar sprain, tingling and numbness in all extremities, migraine, and 

fibromyalgia myofascial pain syndrome. (Tr. 295). 

Dr. Naguib performed two EMG studies in August 2011, again showing no 

significant findings. (Tr. 460, 482). 

 1 Wagner again tested negative for Norco in May 2012 and January 2013, again 

indicating that she was not taking her pain relieving medication as directed. (Tr. 418, 

543). 

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Between December of 2009 and December 2011, Wagner reported several times

that she experienced pain around seven out of ten in severity, that “everything” made the 

pain worse, that the pain was centralized in her neck, shoulders, and lumbar spine, and 

that the pain radiated into her leg and hips. (Tr. 275-85). She reported that use of a TENS 

unit helped to relieve her pain. (Tr. 278, 282). Wagner continued to report somewhere in 

the range of six to eight out of ten pain through 2013. (See, e.g., Tr. 528, 533). 

In February 2012 Wagner received a consultative examination from Dr. Scott 

Lazzara regarding her back pain; it was noted that she was taking narcotic pain 

medication multiple times per day under the care of Dr. Naguib for treatment of her back 

pain. (Tr. 242). Wagner reported some numbness in her legs after sitting for long periods, 

along with some complaints associated with fibromyalgia. (Id.). She reported being able 

to drive short distances, babysit for her daughter-in-law, shop for groceries, climb stairs, 

sit or stand for ten minutes, walk a mile, lift twenty pounds, and sew clothing. (Id.). 

Wagner could get on and off the examination table without issue, could walk on heel and 

toe, squat, and hop. (Tr. 243). She showed some signs of thoracic kyphosis and scoliosis 

in the cervical and thoracic spine, along with tenderness in the thoracic and lumbar spine. 

(Id.). Her range of motion was essentially normal. (Tr. 244-45). Consultative examiner 

Dr. Scott Lazzara concluded that Wagner’s 2010 CT scan showed signs of multilevel disc 

herniations, but that her “symptoms appear to be more arthritic and myofascial pain.” (Tr. 

246). Wagner was “not undergoing any treatment now other than pain management, and 

range of motion exercises . . . possibly injection treatments may be of additional benefit.” 

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(Id.). Dr. Lazzara also noted that Wagner was “at risk of further deterioration over time 

due to the nature of her abnormality.” (Id.). Wagner could perform all tested activities, 

including sitting, standing, stooping, carrying, pushing, pulling, picking up coins and 

pencils, squatting, and climbing. (Tr. 247). He ultimately assessed that her prognosis was 

“fair,” and that her “degree of impairment appears mild, but not remediable.” (Tr. 246).

In May 2012, Dr. Naguib completed a RFC questionnaire, in which he asserted 

that Wagner could frequently lift up to ten pounds, could occasionally lift twenty pounds, 

but could never lift fifty pounds. (Tr. 251). That form contains no explanation of her 

symptoms or the maladies causing her symptoms. Dr. Naguib noted signs of chronic 

widespread fibromyalgic myofascial pain syndrome, bilateral tingling in the lower 

extremities, numbness, paresthesia, thoracic degenerative disc disease, migraine, and 

occipital neuritis. (Tr. 426). Dr. Naguib also found that Wagner had “been very compliant 

with her medication treatment program.” (Id.). Wagner reported that the pain relieving 

injections “helped her very much with her back pain and leg pain.” (Id.).

Notes throughout the record indicate that Wagner received pain relieving 

injections regularly in 2010, 2011, 2012, and 2013. (Tr. 272). (Tr. 404, 413. 414. 416. 

417. 434. 437. 441. 444. 448. 452. 456. 459, 487, 488, 510, 513, 516, 517, 520, 521, 523, 

524, 529, 530, 534.) Wagner regularly reported that these injections provided substantial 

relief, but did not totally or permanently resolve her pain. (Tr. 487). 

In September 2012 Wagner reported that her pain generally interfered with her 

daily activities at the level of seven out of ten. (Tr. 268-69). Dr. Naguib performed an 

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occipital ridge injection in an attempt to remedy Wagner’s neck pain and an injection at 

the iliac crest to remedy her low back pain. (Tr. 395). 

In December 2012 Wagner again complained of chronic pain in the neck, back, 

and legs, stating that “everything causes pain” but that her pain was constant and worse at 

night. (Tr. 270). Wagner also reported midthoracic, shoulder, and leg pain in December 

2012. (Tr. 266).

Dr. Naguib drafted another RFC assessment in January 2013, wherein he found 

that Wagner suffered from back tenderness and pain, headaches, fatigue, and confusion, 

and that these symptoms would “frequently” interfere with her ability to work. (Tr. 253). 

He wrote that Wagner could walk less than one block, could sit or stand for fifteen 

minutes at a time comfortably, and could perform the same tasks for one hour per day 

each. (Id.). Wagner would require a job that permitted her to shift postural positions at 

will, and would need unscheduled breaks “as needed” for ten minutes at a time. (Id.). Dr. 

Naguib revised his weight restrictions such that Wagner could lift ten pounds 

occasionally but could never lift more than ten pounds. (Tr. 254). Wagner had limitations 

in reaching, handling, and fingering, and could perform those activities at most seventy 

percent of the time. (Id.). Finally, Dr. Naguib found that Wagner would be absent from 

work three to four times per month. (Id.).

In March 2013 Dr. Naguib again noted chronic back pain, lumbar degenerative 

disc disease, lumbar displaced disc disease, generative changes of the low thoracic spine, 

widespread fibromyalgia and myofascial pain syndrome, multilevel disc bulge with mild 

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degree of anterior thecal sac compression at L4/L5 and L5/S1, hard calcification at 

T11/T12, bilateral lower extremity pain, multiple widespread muscle pain syndromes, 

chronic neck pain and cervicalgia, paraspinal muscle spasms and myalgia, bilateral 

sacroiliitis, insomnia caused by pain, progressive cervical pain and cervical 

radiculopathy. (Tr. 526). 

In September 2013 Dr. Naguib drafted yet another RFC assessment, asserting that 

Wagner could walk only half a block without rest, could sit, stand, or walk for fifteen to 

twenty minutes, but could sit for three hours per day, could stand or walk for four hours 

per day, required a job which permitted her to shift positions at will, and would need 

breaks every fifteen to twenty minutes for ten to fifteen minutes each. (Tr. 591). He also 

revised upward Wagner’s lifting ability, finding that she could lift up to twenty pounds 

occasionally, but could never lift fifty pounds. (Id.). He wrote that Wagner was limited in 

her ability to use her hands, fingers, and arms, but also recorded that she could use her 

hands or fingers 100% of the time, but left the “arms” field blank as to both the left and 

right arm. (Id.). He also wrote that Wagner would miss work more than four times 

monthly due to uncontrolled headaches, and could not work a normal eight-hour day 

because of tailbone pain from sitting. (Tr. 592). 

In October 2009 Wagner treated with Dr. Seema Dohi, complaining of “chronic 

onset lower back pain,” which was worse with movement or bending, but with no 

radiation of pain into the legs, no tingling, and no numbness. (Tr. 578). Dr. Dohi 

diagnosed chronic back pain, and left sided spinal radiculopathy. (Tr. 578-79). 

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In June 2010 Wagner treated with Dr. Seema Dohi, complaining of rashes and 

sinus pain, but apparently was not suffering from any other maladies. (Tr. 507). 

In July 2012 Wagner treated with Dr. Seema Dohi, complaining of falling into a 

grill and injuring her ribs. (Tr. 504). Wagner “denie[d] any other symptoms” at that time. 

(Id.). 

In March 2013 Wagner again treated with Dr. Seema Dohi. (Tr. 495). Dr. Dohi 

noted no complaints regarding neck pain, muscle weakness, joint pain or stiffness, 

swelling, redness, or arthritis, and also denied numbness, and weakness. (Tr. 495-96, 

564). 

In April 2013, Wagner underwent an MRI at Port Huron Hospital, apparently 

pursuant to a breast exam, which revealed a “small syrinx seen at inferior [illegible] 

vertebral body level within spinal cord” along with “disc herniation [illegible] facing 

anterior thecal sac at C5-C6 levels.” (Tr. 554). 

In July 2013, Wagner treated with Dr. Nalini Samuel, who recorded complaints of 

chronic low back pain resulting from degenerative disc disease, a herniated disc, and 

scoliosis. (Tr. 588). Dr. Samuel noted that injections “did help” Wagner’s pain, but that 

in recent years her back pain has flared up, presenting particularly in the left leg, and that 

her arms had begun feeling numb recently. (Id.). On neurological examination, Dr. 

Samuel found Wagner’s condition to be unremarkable, noting primarily that she had pain 

in the lumbar area. (Tr. 589). 

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In September 2013 Wagner underwent another MRI of the lumbar spine, which 

showed a stable “right paracentral disc bulge or small protrusion,” an “abnormal signal 

along the anterolateral margin of the right thecal sac which could be an artifact.” (Tr. 

598). 

Wagner again treated with Dr. Samuel in September 2013, complaining of pain in 

the left leg, back, and neck. (Tr. 599). Dr. Samuel diagnosed a lumbar disc bulge and 

cervical disc protrusions in the form of a syrinx. (Id.). An August 2013 EMG study 

performed by Dr. Samuel showed no abnormalities, but a September 2013 study showed 

evidence of right ulnar nerve compressive mononeuropathy at the elbow, but with no 

electrodiagnostic evidence of a radiculopathy in the upper extremities. (Tr. 601-03). 

2. Application Reports and Administrative Hearing

a. Wagner’s Function Report

Wagner completed a function report on November 22, 2011, in which she asserted 

that her illness prevents her from standing or sitting for longs periods of time due to back 

and tailbone pain. (Tr. 190). Wagner reported that she cleans the house, does laundry, 

helps her son get ready for school, vacuums, sweeps, feeds her pets, cleans a chicken 

coop, mows the lawn, and babysits. (Tr. 191). Wagner’s pain interrupted her sleep, 

causing her to toss and turn all night. (Id.). She had no problems with personal care, could 

prepare complete meals every day. (Tr. 192). While preparing meals could take fifteen to 

sixty minutes, she experienced pain from standing for too long. (Id.). Wagner also split 

small pieces of wood to prepare for winter. (Id.). She traveled outside daily, and could 

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drive a car. (Tr. 193). Likewise she shopped in stores for groceries, but reported doing so 

only monthly. (Id.). Her hobbies included watching television, sewing, crafts, and 

working in her flower bed. (Tr. 194). She asserted that her conditions caused her to 

experience neck, tailbone, and back pain, ultimately resulting in a headache. (Id.). 

Wagner reported having problems lifting, bending, standing, walking, and stair climbing. 

(Tr. 195). Lifting caused her to experience shoulder pain, neck pain, and headaches, 

sometimes resulting in vomiting. (Id.). Wagner reported using a TENS machine and a 

back brace “all the time.” (Tr. 196). In a section for remarks, Wagner wrote that she had 

“trouble with bending long periods of time,” had difficulty “straightening up” her back, 

difficulty standing and walking, difficulty sitting for long periods, and alleviated her pain 

by getting up and down throughout the day. (Tr. 197). Wagner appears to have written 

out a second copy of her function report on the same date, in which she generally 

duplicated the answers provided in the first function report. (Tr. 198-205). 

b. Wagner’s Testimony at the Administrative Hearing

At the September 10, 2013, hearing before the ALJ, Wagner testified that she lived 

in a second floor apartment, and climbed approximately twelve steps to reach her 

dwelling. (Tr. 29). She complained of “[c]hronic pain all the time,” which prevented her 

from sleeping, and caused pain while do “everything,” including sitting and standing. (Tr. 

32). This pain was located in her neck, back, and left leg. (Id.). At the time of the hearing, 

her pain was at a level of about eight out of ten. (Tr. 33). Wagner stated that her 

conditions were getting worse because her pain was growing more intense over time. (Tr. 

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34). Wagner was taking only Ultram at the time of the hearing, and was no longer 

receiving injection therapy from a “Dr. McGee,” because he “got arrested,” though it 

appears that the parties were in actuality referencing Dr. Naguib. (Id.). 

Wagner reported that on an average day she takes care of her two children, cooks, 

does laundry, and acts as “a homemaker” insofar as her pain permits. (Tr. 34). While her 

children are at school, she takes care of her dogs. (Id.). Wagner stated that she could drive 

and did the family’s shopping, but that her children unloaded groceries from the car. (Tr. 

36). Wagner stated that she did not attend any social events. (Id.).

In terms of lifting capacity, Wagner stated that she “wouldn’t want to pick up any 

more than ten pounds.” (Tr. 36). Wagner also asserted that she had difficulty sitting for 

long periods of time, and could stand for approximately ten to fifteen minutes, and walk 

for fifteen to twenty minutes. (Id.). 

When asked why she was no longer making use of injections and narcotic pain 

medication other than Ultram, Wagner stated that her new doctor “don’t deal with 

narcotics at all,” and that “[s]he don’t do injections either.” (Tr. 37). When asked how she 

rests at home, Wagner asserted that she sits in a recliner, but that she still experiences 

pain when reclining, and that she “just kind of figure[s] out a way to deal with it. (Tr. 38). 

Wagner stated that she lost her job at a pizza restaurant because of difficulty lifting heavy 

drink coolers. (Id.). Wagner’s pain from fibromyalgia “hurt[] all over,” and she rated her 

overall body pain at a seven out of ten. (Tr. 39). 

c. The VE’s Testimony at the Administrative Hearing

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The ALJ then utilized a VE to determine Wagner’s ability to perform work. The 

ALJ first asked the VE to characterize Wagner’s past relevant work. (Tr. 41). The VE 

found that Wagner’s work as a nurse was semi-skilled work performed at the medium 

level, her work as a cashier was unskilled and light, and her work as a housekeeper was 

also unskilled and light. (Id.). The ALJ then asked the VE a series of hypothetical 

questions to determine whether Wagner was capable of completing competitive, 

remunerative work. (Tr. 42). First, he asked the VE to assume a person of identical age, 

education, and vocational history to Wagner, who could perform light work, who could 

never climb ladders, ropes, or scaffolds, but could occasionally climb ramps or stairs, 

could occasionally stoop, kneel, crouch, crawl, and balance, and who should avoid all 

exposure to unprotected heights. (Id.). The VE testified that such a person could perform 

Wagner’s past work as a housekeeper and cashier. (Tr. 42). The ALJ then inquired 

whether the hypothetical person could perform those positions if limited to a sedentary 

level of work; the VE testified that such a restriction would preclude both of those 

positions. (Id.). However, the VE also found that such a person limited to sedentary work 

could perform the positions of assembler (3,000 jobs in Southeast Michigan), inspector 

(2,000 jobs), and sorter (2,000 jobs). (Tr. 42-43). The VE also confirmed that a sit-stand 

option every fifteen minutes which would not put the worker off task more than ten 

percent of the day would not limit the hypothetical worker’s ability to perform any of the 

aforementioned jobs. (Tr. 43). However, if the hypothetical worker required more than 

two unscheduled absences per month, extended breaks, or the ability to leave work at 

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unscheduled times, those limitations would preclude all competitive employment. (Tr. 

44). 

 F. Governing Law

The ALJ must “consider all evidence” in the record when making a disability 

decision. 42 U.S.C. § 423(d)(5)(B). The regulations carve the evidence into various 

categories, “acceptable medical sources” and “other sources.” 20 C.F.R. § 404.1513. 

“Acceptable medical sources” include, among others, licensed physicians and licensed or 

certified psychologists. Id. § 404.1513(a). “Other sources” include medical sources who 

are not “acceptable” and almost any other individual able to provide relevant evidence. 

Id. § 404.1513(d). Only “acceptable medical sources” can establish the existence of an 

impairment. SSR 06-03p, 2006 WL 2329939, at *2. Both “acceptable” and nonacceptable sources provide evidence to the Commissioner, often in the form of opinions 

“about the nature and severity of an individual’s impairment(s), including symptoms, 

diagnosis and prognosis, what the individual can still do despite the impairment(s), and 

physical and mental restrictions.” Id. at *2. When “acceptable medical sources” issue 

such opinions, the regulations deem the statements to be “medical opinions” subject to a 

multi-factor test that weighs their value. 20 C.F.R. § 404.1527. Excluded from the 

definition of “medical opinions” are various decisions reserved to the Commissioner, 

such as whether the claimant meets the statutory definition of disability and how to 

measure his or her RFC. Id. at 404.1527(d). 

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The ALJ must use a six-factor balancing test to determine the probative value of 

medical opinions from acceptable sources. 20 C.F.R. § 404.1527(c). The test looks at 

whether the source examined the claimant, “the length of the treatment relationship and 

the frequency of examination, the nature and extent of the treatment relationship, 

supportability of the opinion, consistency of the opinion with the record as a whole, and 

specialization of the treating source.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 

(6th Cir. 2004). See also 20 C.F.R. § 404.1527(c). ALJs must also apply those factors to 

“other source” opinions. See Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 540-42 (6th 

Cir. 2007); SSR 06-3p, 2006 WL 2329939, at *2. 

Certain opinions of a treating physician, in contrast, receive controlling weight if 

they are “well-supported by medically acceptable clinical and laboratory diagnostic 

techniques” and are “not inconsistent with the other substantial evidence in [the] case 

record.” 20 C.F.R. § 404.1527(d)(2). See also Wilson, 378 F.3d at 544. The only opinions 

entitled to dispositive effect deal with the nature and severity of the claimant’s 

impairments. 20 C.F.R. § 404.1527(d); SSR 96-2p, 1996 WL 374188, at *1-2. Therefore, 

the ALJ does not owe a treating opinion deference on matters reserved to the 

Commissioner. 20 C.F.R. § 404.1527(d); SSR 96-2p, 1996 WL 374188, at *1-2. The ALJ 

“will not give any special significance to the source of an opinion” regarding whether a 

person is disabled or unable to work, whether an impairment meets or equals a Listing, 

the individual’s RFC, and the application of vocational factors. 20 C.F.R. § 

404.1527(d)(3). 

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The regulations mandate that the ALJ provide “good reasons” for the weight 

assigned to the treating source’s opinion in the written determination. 20 C.F.R. § 

404.1527(c)(2). See also Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 875 (6th Cir. 

2007). Therefore, a decision denying benefits

must contain specific reasons for the weight given to the treating 

source’s medical opinion, supported by the evidence in the case 

record, and must be sufficiently specific to make clear to any 

subsequent reviewers the weight the adjudicator gave to the treating 

source’s opinion and the reasons for that weight. 

SSR 96-2p, 1996 WL 374188, at *5 (1996). See also Rogers, 486 F.3d at 242. For 

example, an ALJ may properly reject a treating source opinion if it lacks supporting 

objective evidence. Revels v. Sec. of Health & Human Servs, 882 F. Supp. 637, 640-41 

(E.D. Mich. 1994), aff’d, 51 F.3d 273, 1995 WL 138930, at *1 (6th Cir. 1995) 

(unpublished table decision).

An ALJ must analyze the credibility of the claimant, considering the claimant’s 

statements about pain or other symptoms with the rest of the relevant evidence in the 

record and factors outlined in Social Security Ruling 96-7p. Credibility determinations 

regarding a claimant’s subjective complaints rest with the ALJ. See Siterlet v. Sec’y of 

Health & Human Servs., 823 F.2d 918, 920 (6th Cir. 1987). Generally, an ALJ’s 

credibility assessment can be disturbed only for a “compelling reason.” Sims v. Comm’r 

of Soc. Sec., No. 09-5773, 2011 WL 180789, at *4 (6th Cir. Jan. 19, 2011) (citing Smith 

v. Halter, 307 F.3d 377, 379 (6th Cir. 2001)); Warner v. Comm’r of Soc. Sec., 375 F.3d 

387, 390 (6th Cir. 2004).

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The Social Security regulations establish a two-step process for evaluating 

subjective symptoms, including pain. 20 C.F.R. § 404.1529; SSR 96-7p, 1996 WL 

374186, at *2. The ALJ evaluates complaints of disabling pain by confirming that 

objective medical evidence of the underlying condition exists. The ALJ then determines 

whether that condition could reasonably be expected to produce the alleged pain or 

whether other objective evidence verifies the severity of the pain. See 20 C.F.R. § 

404.1529; SSR 96-7p, 1996 WL 374186, at *2; Stanley v. Sec’y of Health & Human 

Servs., 39 F.3d 115, 117 (6th Cir. 1994). The ALJ ascertains the extent of the workrelated limitations by determining the intensity, persistence, and limiting effects of the 

claimant’s symptoms. SSR 96-7p, 1996 WL 374186, at *2. 

While “objective evidence of the pain itself” is not required, Duncan v. Sec’y of 

Health & Human Servs., 801 F.2d 847, 853 (6th Cir. 1986) (quotation omitted), a 

claimant’s description of his physical or mental impairments alone is “not enough to 

establish the existence of a physical or mental impairment,” 20 C.F.R. § 404.1528(a). 

Nonetheless, the ALJ may not disregard the claimant’s subjective complaints about the 

severity and persistence of the pain simply because they lack substantiating objective 

evidence. SSR 96-7p, 1996 WL 374186, at *1. Instead, the absence of objective 

confirming evidence forces the ALJ to consider the following factors:

(i) [D]aily activities;

(ii) The location, duration, frequency, and intensity of . . . pain;

(iii) Precipitating and aggravating factors;

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

medication . . . taken to alleviate . . . pain or other symptoms;

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(v) Treatment, other than medication, . . . received for relief of . . . 

pain;

(vi) Any measures . . . used to relieve . . . pain.

20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). See also Felisky v. Bowen, 35 F.3d 1027, 

1039-40 (6th Cir. 1994); SSR 96-7p, 1996 WL 374186, at *3. Furthermore, the 

claimant’s work history and the consistency of his or her subjective statements are also 

relevant. 20 C.F.R. § 404.1527(c); SSR 96-7p, 1996 WL 374186, at *5.

The claimant must provide evidence establishing her RFC. The statute lays the 

groundwork for this, stating, “An individual shall not be considered to be under a 

disability unless he [or she] furnishes such medical and other evidence of the existence 

thereof as the Secretary may require.” 42 U.S.C. § 423(d)(5)(A). See also Bowen, 482 

U.S. at 146 n.5. The RFC “is the most he [or she] can still do despite his [or her] 

limitations,” and is measured using “all the relevant evidence in [the] case record.” 20 

C.F.R. § 404.1545(a)(2). A hypothetical question to the VE is valid if it includes all 

credible limitations developed prior to Step Five. Casey v. Sec. of Health & Human 

Servs., 987 F.2d 1230, 1235 (6th Cir. 1993); Donald v. Comm’r of Soc. Sec., No. 08-

14784-BC, 2009 WL 4730453, at *7 (E.D. Mich. Dec. 9, 2009).

G. Analysis 

Wagner argues that the ALJ erred in the following ways: 1) Rejecting the opinions 

of treating physicians without providing the requisite good reasons for doing so; 2) 

Granting considerable weight to consultative physician Dr. Lazzara’s incomplete opinion; 

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3) Rendering a credibility determination not supported by substantial evidence; 4) 

Making several errors at Step Four. These arguments will be addressed in turn. 

1. The ALJ Gave Good Reasons for the Weight Assigned the 

Opinions of Wagner’s Physicians

Wagner first argues that the ALJ erred by granting only minimal weight to the 

opinions of Drs. Naguib and Samuel without providing good reasons for doing so. (Doc. 

17 at 11-17). Wagner also argues that the ALJ erred by providing considerable weight to 

the opinion of Dr. Lazzara, who acted as a mere consultative physician. (Doc. 17 at 11-

12). She asserts that ALJ should have favored the opinions of Drs. Naguib and Samuel 

given their “superior treatment relationship” with Wagner, and should have favored Dr. 

Naguib’s opinion given his expertise as a neurologist and pain management specialist. 

(Id. at 12). 

The ALJ rejected Dr. Naguib’s opinions because he found that “the restrictions he 

has proposed are unsupported by the objective medical evidence, including multiple MRI 

tests and nerve conduction studies, as well as Dr. Naguib’s own findings on the clinical 

exam (e.g. 5/5 strength),” and because Dr. Naguib’s finding that Wagner could stand for 

only one hour per day and lift less than ten pounds was inconsistent with Wagner’s own 

assertion that she could walk about a mile and lift twenty pounds. (Tr. 17). An ALJ 

provides “good reasons” for rejecting a treating physician’s opinions insofar as he 

demonstrates that the physician’s opinion is inconsistent with other evidence in the 

record. Workman v. Comm’r of Soc. Sec., 105 F. App’x 794, 800 (6th Cir. 2004). Said 

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differently, “the more consistent an opinion is with the record as a whole, the more 

weight we will give that opinion.” 20 C.F.R. § 404.1527(d)(4). 

By giving “little” weight to Dr. Naguib’s opinions, the ALJ concluded that the 

physician’s opinions were somewhat consistent with the other evidence in the record, but 

were largely inconsistent with that other evidence. This conclusion is well supported. Dr. 

Naguib performed four EMG studies between 2010 and 2011, each of which revealed no 

abnormal findings. (Tr. 328, 375, 460, 482). Only one EMG, performed by Dr. Samuel 

after Wagner left Dr. Naguib’s care, revealed abnormal findings of any sort, and that test 

showed only right ulnar nerve compressive mononeuropathy at the elbow. (Tr. 601-03). 

A review of the objective medical evidence shows little support for Dr. Naguib’s 

conclusion that Wagner suffered from neuropathy. 

Likewise, Wagner’s MRI scans showed only signs of mild to moderate 

impairment. Wagner’s 2004 MRI showed evidence of thoracic radiculopathy, scoliosis, 

and degenerative disc disease. (Tr. 286). Wagner’s MRI scans in April and September of 

2013 showed only a “small syrinx at the inferior . . . vertebral body level,” “disc 

herniation . . . at [the] C5-C6 levels,” a stable “right paracentral disc bulge or small 

protrusion,” and an “abnormal sign along the anterolateral margin of the right thecal sac.” 

(Tr. 554, 598). These relatively limited findings seem wholly inconsistent with Dr. 

Naguib’s laundry list of diagnosed conditions, including low back pain syndrome, 

spondylosis, degenerative disc disease, radiculopathy, muscle spasms, joint osteoarthritis, 

facet arthrosis, disc bulges at L5/S1, L4/L5, chronic widespread fibromyalgic myofascial 

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pain syndrome, bilateral lower extremity tingling, numbness, paresthesia with bilateral 

upper extremity tingling, trigger point tenderness, tenderness on palpation of the thoracic 

and cervical area, migraines, occipital neuritis, confusion, hard calcification at T11/12, 

multiple widespread pain syndromes, chronic neck pain, cervicalgia, bilateral sacroiliitis, 

insomnia, and progressive cervical pain. (Tr. 253, 294, 299, 308, 348, 368-75, 426, 526). 

Upon review of Dr. Naguib’s records, it is unclear how he diagnosed this tremendous 

number of disorders, or what methods he used to diagnose them. In any case it is clear 

that the relatively minor maladies noted in Wagner’s EMG and MRI scans could not 

rationally support all of Dr. Naguib’s diagnoses. 

Furthermore, as the ALJ points out, one would expect to see a far greater level of 

functional limitation if Wagner actually suffered from the immense number of conditions 

found by Dr. Naguib. (Tr. 17). Dr. Naguib’s May 2012 RFC assessment was that Wagner 

could “frequently lift up to ten pounds” and could “occasionally lift twenty pounds.” (Tr. 

251). Dr. Naguib asserted in his January 2013 RFC assessment that Wagner could walk 

less than one block, sit or stand for fifteen minutes, and could do those activities for one 

hour per day. (Tr. 253). She could lift ten pounds occasionally but never more than ten 

pounds. (Id.). Yet in September 2013, Dr. Naguib wrote that Wagner could only walk 

half a block, could sit for three hours per day, could stand or walk for four hours per day, 

would need breaks every fifteen to twenty minutes, and could lift up to twenty pounds 

occasionally. (Tr. 591). These assessments were thus inconsistent with one another, did 

not show a progressive decline in Wagner’s health, and state that Wagner could lift up to 

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twenty pounds in 2012 and late 2013, a substantial amount for someone who allegedly 

suffers from well over a dozen maladies of the back, neck, leg, and spine. 

Dr. Naguib’s assessments are also inconsistent with Wagner’s own asserted 

abilities. Wagner reported in 2011 that she could take care of her children, babysit, 

sweep, vacuum, take care of her pets, clean a chicken coop, mow the lawn, prepare 

complex meals, split firewood, shop for groceries, drive, sew, watch television, and work 

in her flower bed. (Tr. 192-93). It is evident on its face that Wagner’s self-professed 

abilities are inconsistent with Dr. Naguib’s list of diagnosed conditions. It is nigh 

unfathomable that someone with extreme back pain resulting from osteoarthritis, 

arthrosis, bulging discs, fibromyalgiac myofascial pain, paresthesia, and radiculopathy, 

among other conditions, would voluntarily chop wood, muck out a chicken coop, mow a 

lawn, or perhaps even regularly sweep and vacuum. The necessary conclusion is either 

that Dr. Naguib over-diagnosed Wagner, or that Wagner’s conditions were remarkably 

well treated by her conservative therapy. Yet the record makes clear that this second 

option is also untenable. 

Wagner ceased treating with Dr. Naguib in 2013, and in doing so also ceased the 

use of epidural steroid pain relieving injections, and scaled back her medication to a 

single narcotic pain reliever, Ultram, also known as Tramadol. (Tr. 37). Wagner testified 

at the hearing that her new physician, “don’t deal with narcotics at all,” and that “[s]he 

don’t do injections either.” (Id.). If Wagner’s pain was really as disabling as she and Dr. 

Naguib suggest, one would expect that she would seek out a new physician who was 

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willing and able to provide pain relieving injections. This is particularly true given that 

Wagner regularly reported that these injections relieved half of her pain. (Tr. 302, 322, 

353-54, 361). The necessary conclusion is that Wagner’s symptoms are not as severe as 

alleged, further undercutting Dr. Naguib’s bleak evaluation of Wagner’s condition. 

Furthermore, Dr. Naguib’s findings are not well supported by the findings of other 

physicians in the record. While it is true that Dr. Dohi diagnosed Wagner with chronic 

lower back pain and left-sided spinal radiculopathy in 2009, Wagner apparently had no 

complaints about her back, neck, leg, or spine pain during visits in 2010, 2012, or 2013. 

(Tr. 495, 504, 507). Dr. Samuel noted complaints of chronic back pain, leg pain, and 

some arm numbness in 2013, but on objective examination found that Wagner appeared 

largely unremarkable, showing only a “right paracentral disc bulge or small protrusion,” 

and an “abnormal signal along the anterolateral margin.” (Tr. 598). Dr. Lazzara found 

that Wagner’s pain was more likely to be of an “arthritic and myofascial” nature than 

from her disc herniations, and that she could complete all diagnostic tasks asked of her, 

including bending and hopping on the examination table, and found that she suffered 

from only a mild degree of impairment. (Tr. 246). 

Wagner also briefly suggests that the ALJ erred by way of failing to discuss Dr. 

Naguib’s specialized expertise and treating relationship, and by failing to discuss the bulk 

of Dr. Naguib’s findings, which support a finding of disability. (Doc. 17 at 14). Dr. 

Naguib’s treating relationship and expertise as a neurologist is irrelevant where his 

opinions do not comport with the other evidence of record. Furthermore, the ALJ noted 

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that Dr. Naguib was a neurologist, and thus clearly considered that expertise. (Tr. 16). As 

to the second argument, an “ALJ need not discuss every piece of evidence in the record 

for his decision to stand.” Thacker v. Comm’r of Soc. Sec., 99 F. App’x 661, 665 (6th Cir. 

2004). The ALJ discussed Dr. Naguib’s opinions and findings with sufficient 

particularity to establish that his findings were inconsistent with the other evidence in the 

record. 

In sum, the ALJ presented good reasons to doubt the validity of Dr. Naguib’s 

opinions, and thus did not err by giving little weight to that physician’s opinions. 

2. The ALJ Did Not Err by Granting Considerable Weight to Dr. 

Lazzara’s Opinion

Wagner next argues that the ALJ erred by “relying almost solely on the opinion of 

Dr. Lazzara because he did not provide a full functional assessment” and because the 

ALJ’s RFC finding was more restrictive than the one suggested by Dr. Lazzara. (Doc. 17 

at 17). An ALJ has no obligation to conform his RFC finding to a physician’s RFC 

assessment; as the Sixth Circuit has repeatedly noted, such a requirement “would, in 

effect, confer upon the treating source the authority to make the determination or decision 

about whether an individual is under a disability, and thus would be an abdication of the 

Commissioner’s statutory responsibility to determine whether an individual is disabled.” 

Rudd v. Comm’r of Soc. Sec., 531 F. Appx 719, 728 (6th Cir. 2013) (quoting SSR 96-5p,

1996 WL 374183 (July 2, 1996)). Instead, the ALJ’s RFC finding must be supported by 

substantial evidence, and thus must be consistent with the record as a whole. See 

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Kendrick v. Comm’r of Soc. Sec., No. 12-CV-15388, 2014 WL 1260665, at *11 (E.D. 

Mich. Mar. 27, 2014); see also Wills v. Sec’y, Health & Human Servs., 802 F.2d 870, 873 

(6th Cir. 1986) (“The existence of substantial evidence to support the Secretary’s finding 

must be reflected by the record as a whole.”). Because the ALJ has the power to craft his 

or her RFC finding based on the record as a whole, and is not tied to the opinion of any 

physician, it follows that the ALJ may craft a RFC finding which is more restrictive than 

that issued by any particular physician. 

3. The ALJ’s Credibility Determination is Supported by Substantial 

Evidence

Wagner also asserts that the ALJ erred by finding that her complaints of pain were 

not entirely credible. (Doc. 17 at 18-21). Wagner notes that she received over a dozen 

pain relieving epidural injections over the course of her three years of treatment with Dr. 

Naguib, indicating that she received more than “mere routine care,” and suggesting “a 

pattern of chronic, intractable pain.” (Id. at 18). Judges in this district have regularly 

found that epidural pain reliving injections are conservative therapy. See, e.g., Dimarzio 

v. Comm’r of Soc. Sec., No. 11-15635, 2013 WL 6163637, at *18 (E.D. Mich. Nov. 20, 

2013); Cobb v. Comm’r of Soc. Sec., No. CIV.A. 10-10023, 2010 WL 6243315, at *2 

(E.D. Mich. Dec. 13, 2010) report and recommendation adopted, No. 2:10-CV-10023, 

2011 WL 1085538 (E.D. Mich. Mar. 22, 2011). More persuasive, however, is Wagner’s 

failure to seek out further epidural steroid injections after she ceased treating with Dr. 

Naguib. As noted above, Wagner testified that she stopped receiving this effective 

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therapy after Dr. Naguib was arrested, allegedly because her new treating physician 

refused to provide either injections or narcotic pain relief medication. (Tr. 37). 

Particularly where Wagner asserts that her condition is severely painful and has 

deteriorated over time (Tr. 34), it is difficult to believe that she would not attempt to find 

an alternate physician who offered epidural steroid injections. 

Likewise, the Court is loath to accept Wagner’s assertion that her condition has 

deteriorated (Tr. 34) where even Dr. Naguib, who evinced a particularly dire view of 

Wagner’s health, and who diagnosed Wagner with a lengthy list of disorders, crafted 

RFC assessments that suggest her condition actually improved over time in certain 

respects. Dr. Naguib found that Wagner’s ability to lift weight increased from ten pounds 

to twenty pounds between his January 2013 and September 2013 RFC assessments. (Tr. 

253, 591). Similarly, he found that Wagner was able to stand or walk for one hour per 

day in January 2013, but that she could stand or walk for four hours per day in September 

2013. (Id.). The Court also notes that Wagner asserted that she could only lift less than 

ten pounds at the hearing before the ALJ, which is directly contradicted by Dr. Naguib’s 

assessment, rendered in the same month, that she could lift up to twenty pounds. (Tr. 41, 

591). 

Wagner also argues that her ability to perform some household tasks does not 

mean that she is capable of performing full time work. (Tr. 17 at 20-21). Wagner points 

to case law indicating that benefits claimants need not “vegetate in a dark room” to be 

found disabled. Allen v. Comm’r of Soc. Sec., No. 1:14-CV-86, 2015 WL 1119755, at *6 

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(W.D. Mich. Mar. 11, 2015) (quotation omitted). This point is well taken, but not 

applicable to Wagner’s particular situation. The ALJ did not find that Wagner was 

capable of performing competitive, remunerative work because she was capable of 

cutting firewood, mowing the lawn, caring for dogs and children, babysitting, cooking, 

and other strenuous activities, but instead properly used these activities to impugn 

Wagner’s credibility regarding the allegedly severe pain she experiences. (Tr. 18). The 

ALJ properly considered these daily activities in conjunction with the other evidence of 

record, and concluded that Wagner’s credibility was suspect. See Evans v. Astrue, No. 

09-10184, 2009 WL 4506435, at *5 (E.D. Mich. Dec. 1, 2009) (holding that an ALJ may 

consider a claimant’s daily activities in conjunction with other evidence of record to 

conclude that the claimant is less than credible). Wagner is not vegetating in a dark room, 

but rather is, by her own admission, living a relatively restriction-free life as a 

homemaker, and engages in a wide variety of taxing physical activities. The physician 

whose opinions most favor her claim of disability found that her condition actually 

improved in terms of her ability to lift, walk, and stand. Wagner’s pain was apparently 

sufficiently mitigated by late 2013 that she no longer felt motivated to seek out pain 

relieving injections. On the whole, there are numerous, significant reasons to doubt 

Wagner’s credibility, and the ALJ’s credibility determination is supported by substantial 

evidence. 

4. The ALJ Did Not Err at Step Four 

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Finally, Wagner argues that the ALJ erred by making an incorrect finding at Step 

Four of the five-step sequential analysis. (Doc. 17 at 21-22). Wagner notes that the ALJ 

found that she could return to her past work as a housekeeper, yet there is insufficient 

evidence that she performed this work at a level necessary for it to be considered 

substantial gainful activity. (Id.). Even assuming that the ALJ erred in finding that 

Wagner could return to her past work as a housekeeper, he also found that she could 

return to her past work as a cashier. (Tr. 19). Once the ALJ has identified a single past 

relevant job to which the claimant can return, the claimant may be found not disabled. 

Cowles v. Colvin, No. 1:15CV105, 2016 WL 527063, at *8 (M.D.N.C. Feb. 9, 2016) 

(“The ALJ’s step four finding can permissibly rest on a finding that Plaintiff can return to 

a single, former job, so long as that job qualifies as ‘past relevant work.’”) (quoting 20 

C.F.R. § 404.1560(b)(3)). Wagner has identified no compelling reason why she is unable 

to return to her past relevant work as a cashier, thus the ALJ’s Step Four finding stands. 

Furthermore, while the ALJ did not incorporate this testimony into his decision, the VE 

identified several positions which exist in substantial numbers in Southeast Michigan 

which Wagner could perform, and could have also found her not disabled on that basis. 

(Tr. 43). 

Wagner also argues that the ALJ erred by requesting that the VE consider 

hypothetical workers whose limitations do not comport with those she alleged. (Doc. 17 

at 21-23). The Court has already thoroughly examined the ALJ’s findings regarding 

Wagner’s credibility and Wagner’s treating physicians, and has concluded that the ALJ’s 

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RFC finding was supported by substantial evidence. An ALJ is not obligated to include in 

his or her hypothetical questions to the VE limitations which are found not to be credible. 

Smith v. Halter, 307 F.3d 377, 378 (6th Cir. 2001).

H. Conclusion

For the reasons stated above, the Court RECOMMENDS that Wagner’s Motion 

for Summary Judgment (Doc. 17) be DENIED, the Commissioner’s Motion (Doc. 18) be 

GRANTED, and that this case be AFFIRMED. 

III. REVIEW

Pursuant to Rule 72(b)(2) of the Federal Rules of Civil Procedure, “[w]ithin 14 

days after being served with a copy of the recommended disposition, a party may serve 

and file specific written objections to the proposed findings and recommendations. A 

party may respond to another party’s objections within 14 days after being served with a 

copy.” Fed. R. Civ. P. 72(b)(2). See also 28 U.S.C. § 636(b)(1). Failure to file specific 

objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 

140, 106 S. Ct. 466, 88 L. Ed.2d 435 (1985); Howard v. Sec’y of Health & Human Servs.,

932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The 

parties are advised that making some objections, but failing to raise others, will not 

preserve all the objections a party may 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, 1373 (6th Cir. 1987). Pursuant to E.D. 

Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this magistrate judge. 

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Any objections must be labeled as “Objection No. 1,” “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.

Date: March 22, 2016 s/ Patricia T. Morris

Patricia T. Morris

United States Magistrate Judge

CERTIFICATION

I hereby certify that the foregoing document was electronically filed this date 

through the Court’s CM/ECF system which delivers a copy to all counsel of record.

Date: March 22, 2016 By s/Kristen Krawczyk 

 Case Manager

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