UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

HAROLD HICKS,

Plaintiff,

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

_____________________________________/

Case No. 15-12329

Stephen J. Murphy, III

United States District Judge

Stephanie Dawkins Davis

United States Magistrate Judge

REPORT AND RECOMMENDATION ON 

CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkts. 16, 19)

I. PROCEDURAL HISTORY

A. Proceedings in this Court

On June 29, 2015, plaintiff Harold Hicks, filed the instant suit seeking

judicial review of the Commissioner’s unfavorable decision disallowing benefits.

(Dkt. 1). Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(b)(3), District

Judge Stephen J. Murphy, III referred this matter to Magistrate Judge Michael

Hluchaniuk for the purpose of reviewing the Commissioner’s decision denying

plaintiff’s claim for a period of disability and disability insurance benefits. (Dkt.

3). On January 5, 2016, the case was subsequently reassigned to the undersigned

pursuant to Administrative Order. (See Text-Only Order, dated 1/5/16). This

matter is before the Court on cross-motions for summary judgment. (Dkt. 16, 19).

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B. Administrative Proceedings

Plaintiff filed the instant claim for disability and disability insurance

benefits on September 25, 2012. (Dkt. 14-5, Pg ID 238-244). The same day,

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plaintiff filed a claim for social security income benefits. (Id. at 245-250). In both

applications, plaintiff alleged disability beginning August 27, 2011. The claims

were initially disapproved by the state agency responsible for making disability

determinations on behalf of the Commissioner on January 31, 2013. (Dkt. 14-4,

Pg ID 175-183). Plaintiff requested a hearing and on March 25, 2014, plaintiff

appeared before Administrative Law Judge (“ALJ”) Ramona L. Fernandez, who

considered the case de novo. (Dkt. 14-2, Pg ID 79-114). Although informed of

the right to representation, plaintiff chose to appear and testify without the

assistance of an attorney or other representative. (Id. at 83). 

In a decision dated April 23, 2014, the ALJ found that plaintiff was not

disabled. (Dkt. 14-2, Pg ID 63-74). Plaintiff requested a review of that decision,

and the ALJ’s decision became the final decision of the Commissioner when, after

the review of additional exhibits , the Appeals Council on June 2, 2015, denied

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 Plaintiff filed a prior claim for disability and disability insurance benefits together with 1

social security income benefits on May 6, 2010, alleging a disability beginning August 15, 2008. 

(Dkt. 14-3, Pg ID 131). Eventually, in a decision dated August 26, 2011, ALJ Anthony R.

Smereka determined that plaintiff had not been under a disability from August 15, 2008, through

the date of his decision. (Dkt. 14-3, Pg ID 137). 

In this circuit, where the Appeals Council considers additional evidence but denies a 2

request to review the ALJ’s decision, since it has been held that the record is closed at the

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plaintiff’s request for review. (Dkt. 14-2, Pg ID 45-50); Wilson v. Comm’r of Soc.

Sec., 378 F.3d 541, 543-44 (6th Cir. 2004). 

For the reasons set forth below, the undersigned RECOMMENDS that

plaintiff’s motion for summary judgment be DENIED, that defendant’s motion for

summary judgment be GRANTED, and that the findings of the Commissioner be

AFFIRMED.

II. FACTUAL BACKGROUND

A. ALJ Findings

Plaintiff was born on October 5, 1958, making him 52 years old on his

alleged onset date. Plaintiff has the equivalent of a high school education (he has

a GED). Plaintiff has previously worked as a press operator and production

laborer. Both of these jobs are classified as unskilled. 

The ALJ applied the five-step disability analysis to plaintiff’s claims and

found at step one that plaintiff had not engaged in substantial gainful activity since

August 27, 2011, the alleged onset date. (Dkt. 14-2, Pg ID 65). At step two, the

ALJ found that plaintiff has the following severe impairments: alcohol and drug

administrative law judge level, those “AC” exhibits submitted to the Appeals Council are not

part of the record for purposes of judicial review. See Cotton v. Sullivan, 2 F.3d 692, 696 (6th

Cir. 1993); Cline v. Comm’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996). Therefore, since

district court review of the administrative record is limited to the ALJ’s decision, which is the

final decision of the Commissioner, the court can consider only that evidence presented to the

ALJ. In other words, Appeals Council evidence may not be considered for the purpose of

substantial evidence review.

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abuse in partial or recent remission per history and alcohol related seizure

disorder. (Id. at 66). The ALJ then concluded that claimant does not have an

impairment or combination of impairments that meets or medically equals the

severity of one of the listed impairments. (Id.) As such, the ALJ found that the

claimant had the residual functional capacity (“RFC”) to perform:

a full range of work at all exertional levels but with the

following nonexertional limitations: the claimant is

limited to unskilled work with simple instructions. He

should be subject to no more than routine changes. The

claimant cannot climb ladders, ropes, or scaffolds. He

cannot engage in commercial driving. The claimant

must avoid concentrated exposure to hazards including

moving machinery and work at unprotected heights.

(Id. at 68). The ALJ next determined that claimant was capable of performing his

past relevant work as a press operator and production laborer. (Id. at 73). The

ALJ reasoned that plaintiff’s past work did not require the performance of workrelated activities that were precluded by the claimant’s RFC. (Id.) As such, the

ALJ concluded that plaintiff has not been under a disability from August 27, 2011,

through the date of his decision. (Id. at 74).

B. Plaintiff’s Motion for Summary Judgment

Plaintiff, acting without counsel, filed a one-page, handwritten motion for

summary judgment, indicating that he is suffering from health problems including

“hands locking” and “stiff[en]ing”, together with arthritis in his hands and knees. 

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(Dkt. 16). Plaintiff also alleges that he has been denied benefits because he

believes that his physicians have given false information and/or documents when

responding to claim inquiries on his behalf. (Id.)

C. The Commissioner’s Motion for Summary Judgment

 The Commissioner indicates that plaintiff’s motion does not challenge any

of the ALJ’s specific legal or factual findings; therefore, the Commissioner

identifies the issue as being whether the ALJ’s final decision is supported by

substantial evidence. In its motion, the Commissioner argues that substantial

evidence supports the ALJ’s decision at each step of the sequential evaluation.

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For this reason, the Commissioner respectfully asks this Court to enter judgment

affirming the ALJ’s final decision.

III. DISCUSSION

A. Standard of Review

This Court has original jurisdiction to review the Commissioner's final

administrative decision pursuant to 42 U.S.C. § 405(g). Judicial review under this

statute is limited in that the court “must affirm the Commissioner’s conclusions

absent a determination that the Commissioner has failed to apply the correct legal

 The ALJ concluded that plaintiff satisfied his burden at step one of the sequential 3

evaluation; therefore, the Commissioner presumes that plaintiff does not challenge this finding. 

Moreover, the ALJ did not make a step five finding because she found that plaintiff was not

disabled at step four. As such, the Commissioner’s brief only addresses steps two through four

of the sequential evaluation. 

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

record.” Longworth v. Comm'r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005);

Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). In deciding

whether substantial evidence supports the ALJ’s decision, “we do 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); Garner v. Heckler, 745 F.2d 383,

387 (6th Cir. 1984). “It is of course for the ALJ, and not the reviewing court, to

evaluate the credibility of witnesses, including that of the claimant.” Rogers v.

Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007). “However, the ALJ is not

free to make credibility determinations based solely upon an 'intangible or

intuitive notion about an individual's credibility.’” Rogers, 486 F.3d at 247,

quoting Soc. Sec. Rul. 96–7p, 1996 WL 374186, *4.

If supported by substantial evidence, the Commissioner’s findings of fact

are conclusive. 42 U.S.C. § 405(g). Therefore, this Court may not reverse the

Commissioner's decision merely because it disagrees or because “there exists in

the record substantial evidence to support a different conclusion.” McClanahan v.

Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006); Mullen v. Bowen, 800

F.2d 535, 545 (6th Cir. 1986) (en banc ). Substantial evidence is “more than a

scintilla of evidence but less than a preponderance; it is such relevant evidence as

a reasonable mind might accept as adequate to support a conclusion.” Rogers, 486

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F.3d at 241; Jones, 336 F.3d at 475. “The substantial evidence standard

presupposes that there is a ‘zone of choice’ within which the Commissioner may

proceed without interference from the courts.” Felisky v. Bowen, 35 F.3d 1027,

1035 (6th Cir. 1994) (citations omitted), citing, Mullen, 800 F.2d at 545.

B. Governing Law

The “[c]laimant bears the burden of proving his entitlement to benefits.” 

Boyes v. Sec’y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994);

accord, Bartyzel v. Comm’r of Soc. Sec., 74 Fed. Appx. 515, 524 (6th Cir. 2003). 

There are several benefits programs under the Act, including the Disability

Insurance Benefits Program (DIB) of Title II (42 U.S.C. §§ 401 et seq.) and the

Supplemental Security Income Program (SSI) of Title XVI (42 U.S.C. §§ 1381 et

seq.). Title II benefits are available to qualifying wage earners who become

disabled prior to the expiration of their insured status; Title XVI benefits are

available to poverty stricken adults and children who become disabled. F. Bloch,

Federal Disability Law and Practice § 1.1 (1984). While the two programs have

different eligibility requirements, “DIB and SSI are available only for those who

have a ‘disability.’” Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). 

“Disability” means:

inability to engage in any substantial gainful activity by

reason of any medically determinable physical or mental

impairment which can be expected to result in death or

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which has lasted or can be expected to last for a

continuous period of not less than 12 months.

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); see also 20 C.F.R. § 416.905(a)

(SSI).

The Commissioner’s regulations provide that disability is to be determined

through the application of a five-step sequential analysis:

Step One: If the claimant is currently engaged in

substantial gainful activity, benefits are denied without

further analysis.

Step Two: If the claimant does not have a severe

impairment or combination of impairments, that

“significantly limits ... physical or mental ability to do

basic work activities,” benefits are denied without

further analysis.

Step Three: If plaintiff is not performing substantial

gainful activity, has a severe impairment that is expected

to last for at least twelve months, and the severe

impairment meets or equals one of the impairments listed

in the regulations, the claimant is conclusively presumed

to be disabled regardless of age, education or work

experience.

Step Four: If the claimant is able to perform his or her

past relevant work, benefits are denied without further

analysis.

Step Five: Even if the claimant is unable to perform his

or her past relevant work, if other work exists in the

national economy that plaintiff can perform, in view of

his or her age, education, and work experience, benefits

are denied.

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Carpenter v. Comm’r of Soc. Sec., 2008 WL 4793424 (E.D. Mich. 2008), citing,

20 C.F.R. §§ 404.1520, 416.920; Heston, 245 F.3d at 534. “If the Commissioner

makes a dispositive finding at any point in the five-step process, the review

terminates.” Colvin, 475 F.3d at 730. 

“Through step four, the claimant bears the burden of proving the existence

and severity of limitations caused by her impairments and the fact that she is

precluded from performing her past relevant work.” Jones, 336 F.3d at 474, cited

with approval in Cruse, 502 F.3d at 540. If the analysis reaches the fifth step

without a finding that the claimant is not disabled, the burden transfers to the

Commissioner. Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006). 

At the fifth step, the Commissioner is required to show that “other jobs in

significant numbers exist in the national economy that [claimant] could perform

given [his] RFC and considering relevant vocational factors.” Rogers, 486 F.3d at

241; 20 C.F.R. §§ 416.920(a)(4)(v) and (g).

If the Commissioner’s decision is supported by substantial evidence, the

decision must be affirmed even if the court would have decided the matter

differently and even where substantial evidence supports the opposite conclusion. 

McClanahan, 474 F.3d at 833; Mullen, 800 F.2d at 545. In other words, where

substantial evidence supports the ALJ’s decision, it must be upheld.

C. Legal Analysis

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Because plaintiff did not make any specific factual or legal objections to the

ALJ’s conclusions, and because plaintiff is proceeding pro se, the undersigned

focuses on whether the ALJ’s conclusions are supported by substantial evidence.

At step one, the ALJ determined that plaintiff had met the insured

requirements of the Social Security Act though December 31, 2012. (Dkt. 14-2,

Pg ID 65). As the Commissioner points out, the ALJ ruled in favor of plaintiff at

step one, and neither party contests this finding, therefore the court has no reason

to believe that plaintiff did not satisfy this requirement.

At step two, the ALJ determined that claimant has the following severe

impairments: alcohol and drug abuse in partial or recent remission per history and

alcohol related seizure disorder. (Dkt. 14-2, Pg ID 66). At the same time, the ALJ

ruled out that plaintiff’s depressive disorder, cognitive disorder, and left wrist

tendonitis were severe in nature. (Id.) At step two of the sequential evaluation 4

process, the ALJ must consider whether a claimant has a severe impairment and

whether the impairment(s) meet the twelve month durational requirement in 20

C.F.R. § 404.1509. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also

Simpson v. Comm’r of Soc. Sec., 344 Fed. Appx. 181, 188 (6th Cir. 2009) (“At

 Plaintiff made additional allegations at the administrative level that he also suffers from 4

back and “left finger” pain; however, the undersigned has reviewed the record and agrees with

the Commissioner that there is nothing in the record to support a finding that these are medically

determinable impairments.

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step two, if a claimant does not have a severe medically determinable physical or

mental impairment ... that meets the durational requirement in § 404.1509 ..., or a

combination of impairments that is severe and meets the durational requirement,

then [she] is not disabled.”). “To surmount the step two hurdle, the applicant

bears the ultimate burden of establishing that the administrative record contains

objective medical evidence suggesting that the applicant was “disabled” as defined

by the Act....” Despins v. Comm’r of Soc. Sec., 257 Fed. Appx. 923, 929 (6th Cir.

2007); 20 C.F.R. 404.1513(c) (“You must provide medical evidence showing that

you have an impairment(s) and how severe it is ... [and] how your impairment(s)

affects your functioning during the time you say that you are disabled.”) A

“severe” impairment is defined as “any impairment or combination of impairments

which significantly limits your physical or mental ability to do basic work

activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c). Basic work activities are

defined in the regulations as “the abilities and aptitudes necessary to do most

jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). Examples include: (1) physical

functions such as walking, standing, sitting, lifting, pushing, pulling, reaching,

carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3)

understanding, carrying out, and remembering simple instructions; (4) use of

judgment; (5) responding appropriately to supervision, co-workers, and usual

work situations; and (6) dealing with changes in routine work settings. See id. 

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Regarding plaintiff’s mental health issues, the ALJ observed that plaintiff

never sought any mental health treatment. (Dkt. 14-2, Pg ID 66). Further, in

December 2012, plaintiff underwent a consultative psychiatric examination which

indicated that plaintiff had no more than a mild impairment relating to others; mild

impairment maintaining concentration, persistence, or pace; mild impairment in

his ability to withstand stress; and moderate impairment in his ability to carry out

tasks. (Dkt. 14-7, Pg ID 455-460). The consultative examiner, Dr. Hugh Bray,

noted that plaintiff could perform simple, repetitive tasks and likely even more

complex tasks, notwithstanding his moderate difficulty performing multiple-step

tasks. (Id. at Pg ID 460). The ALJ also noted that state agency psychiatrist, Dr.

David A. Harley, similarly opined that plaintiff would have no more than moderate

difficulty in his ability to maintain concentration, persistence, or pace, and that

plaintiff was not significantly limited in his ability to complete a normal workday

and workweek. (Dkt. 14-3, Pg ID 164-165). The undersigned notes that plaintiff

makes no specific arguments regarding the ALJ’s step two findings. And, as

pointed out by the Commissioner, even if the ALJ did err in concluding that

plaintiff’s psychological impairments were non-severe, any error in this regard is

harmless because the ALJ later considered and included reasonable mental

limitations in her RFC assessment. (Dkt. 14-2, Pg ID 68) (limiting plaintiff to

unskilled work with simple instructions, subject to no more than routine changes).

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The ALJ also determined that the plaintiff did not meet his burden of

proving that his left wrist tendonitis was a severe impairment. (Dkt. 14-2, Pg ID

66). As noted by the ALJ, plaintiff only sought treatment for left wrist pain on

two occasions, first in January 2011 more than eight months prior to his alleged

onset date, when x-rays were negative for any fractures and plaintiff was able to

fully flex and extend his wrist with only mild tenderness. Plaintiff’s next doctor’s

visit was on April 25, 2011, approximately four months prior to his onset date. 

(Id.) At that time, plaintiff’s range of motion in all joints was noted to be intact

and, again, he showed only mild tenderness. Plaintiff’s only testimony to support

any alleged disability was that he sought treatment for “arthritis in [his] wrist,”

however, the ALJ noted that the record did not reflect any treatment for pain

during the alleged period of disability, including plaintiff’s recent history of

physical labor involving significant hand usage and lifting. (Dkt. 14-2, Pg ID 66). 

Again, plaintiff does not specifically dispute the ALJ’s findings regarding these

step two conclusions and the undersigned concludes that these findings are

supported by substantial evidence.

The first step at which the ALJ’s findings diverge from the path leading to a

finding of disability in plaintiff’s case is at step three, where the ALJ concluded

that plaintiff did not have an impairment or combination of impairments that met

or equaled one of the listings in the regulations as no acceptable medical source

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has mentioned findings equivalent in severity to any listed impairment in Part 404. 

(Dkt. 14-2, Pg ID 66). Under the theory of presumptive disability, a claimant is

eligible for benefits if he has an impairment that meets or medically equals a

Listed Impairment. See Christephore v. Comm’r of Soc. Sec., 2012 WL 2274328,

at *6 (E.D. Mich. June 18, 2012). When considering presumptive disability at step

three, “an ALJ must analyze the claimant’s impairments in relation to the Listed

Impairments and must give a reasoned explanation of his findings and conclusions

in order to facilitate meaningful review.” Id. (citing Reynolds v. Comm’r of Soc.

Sec., 424 Fed. Appx. 411, 416 (6th Cir. 2011)). An ALJ’s failure to sufficiently

articulate his step three findings is error. See M.G. v. Comm’r of Soc. Sec., 861 F.

Supp.2d 846, 858-59 (E.D. Mich. 2012). “For a claimant to show that his

impairment matches a listing, it must meet all of the specific medical criteria.” 

Sullivan v. Zebely, 493 U.S. 521, 530 (1990) (emphasis in original). 

Here, the ALJ concluded that there was no evidence that plaintiff met or

equaled Listings 11.02 or 11.03. With respect to listing 11.02, the ALJ opined

that the medical record did not show that plaintiff experienced grand mal seizures

that occurred more than one time per month despite three months of prescribed

treatment. (Dkt. 14-2, Pg ID 67). Regarding Listing 11.03, the ALJ reasoned that

the record did not contain a detailed description of a typical seizure pattern

including all associated phenomena, occurring more frequently than one time per

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week in spite of at least three months of prescribed treatment, with alteration of

awareness or loss of consciousness and transient postictal manifestations of

unconventional behavior or significant interference with activity during the day. 

(Id.) 

The ALJ also determined that plaintiff’s mental impairments did not meet or

medically equal the criteria of Listings 12.02 or 12.04, as evaluated under 12.09. 

In making these determinations, the ALJ considered whether the “paragraph B”

criteria were satisfied. In activities of daily living, the ALJ determined that

plaintiff had mild restrictions. (Dkt. 14-2, Pg ID 67). In support of her decision,

the ALJ noted that plaintiff “lives alone and handles his own housekeeping,

cooking, shopping, laundry, finances (Exhibit 6F).” (Id.) The ALJ also relied on

the fact that until mid-2013, he was helping to care for his elderly mother. (Id.) 

With regard to social functioning, the ALJ determined that plaintiff has mild

difficulties. (Id.) The ALJ noted that plaintiff reported to the consultative

examiner that he gets along with family and coworkers, but has some “friction”

with friends. (Id.) Plaintiff additionally stated in a function report that he does

not get along with others because they do not understand him. (Id.) With respect

to concentration, persistence, or pace, the ALJ concluded that plaintiff has

“moderate” difficulties. (Id.) The consultative examiner additionally noted in

December 2012 that plaintiff’s concentration, attention, persistence, and effort at

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the exam were average. Plaintiff stated in his function report that he follows

spoken instructions well, but not written instructions. Plaintiff’s internist further

noted in July 2012 that plaintiff had memory problems. (Id.) The ALJ concluded

that because plaintiff’s mental impairment did not cause at least two “marked”

limitations, or one “marked” limitation and “repeated” episodes of

decompensation, each of extended duration, the paragraph “B” criteria were not

satisfied. (Id.) 

The ALJ also considered whether the “paragraph C” criteria of 12.02 or

12.04 were satisfied. (Dkt. 14-2, Pg ID 67-68). On this point, the ALJ concluded:

The medical evidence does not provide a documented

history of a chronic organic mental disorder or chronic

affective disorder of at least two years’ duration that has

caused more than a minimal limitations of ability to do

basic work activities, or any medical evidence of

episodes of decomposition, a residual disease process

that would cause the claimant to decompensate, or a oneyear history of inability to function outside a highly

supportive living arrangement.

(Id., Pg ID 68).

Again, the undersigned notes that plaintiff does not specifically challenge

any of the ALJ’s step three findings or conclusions. After a review of the ALJ’s

findings against the record, the undersigned concludes that the ALJ’s step three

conclusions are supported by substantial evidence. 

Next, the undersigned concludes that the RFC finding is also supported by

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substantial evidence. The ALJ determined that plaintiff has the RFC to perform a

full range of work at all exertional levels but with the following nonexertional

limitations: “plaintiff is limited to unskilled work with simple instructions. He

should be subject to no more than routine changes. The claimant cannot climb

ladders, ropes, or scaffolds. He cannot engage in commercial driving. The

claimant must avoid concentrated exposure to hazards including moving

machinery and work at unprotected heights.” (Dkt. 14-2, Pg ID 68). 

ALJ Fernandez noted her obligation under Drummond v. Comm’r of Soc.

Sec., 126 F.3d 837 (6th Cir. 1997), Acquiescence Ruling 98-4(6), that an ALJ

must adopt a finding of a claimant’s RFC or other finding required under the

applicable sequential evaluation process for determining disability, made in the

final decision by an ALJ or Appeals Council on a prior disability claim, unless

new and additional evidence or changed circumstances provide a basis for a

different finding. Acknowledging this obligation, ALJ Fernandez determined that

that substantial evidence supported additional non-exertional limitations. (Dkt.

14-2, Pg ID 68).

In making her RFC conclusions, ALJ Fernandez made detailed findings,

noting that she considered all objective medical evidence, including medical

opinions (both psychological and physical), plaintiff’s history of alcohol and drug

use, prescription drug use, a third-party statement from plaintiff’s brother, together

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with plaintiff’s testimony. In sum, the ALJ determined that the record did not

provide evidence of any impairment or combination of impairments that rendered

plaintiff unable to work. (Dkt. 14-2, Pg ID 73). Plaintiff makes no specific

challenge to the RFC findings, and the undersigned finds no errors regarding the

weighing of the opinion evidence and finds that substantial evidence supports the

RFC.

With respect to the step four findings, the ALJ concluded that plaintiff is

capable of performing his past relevant work as a press operator and production

laborer. (Dkt. 14-2, Pg ID 73). The ALJ, relying on the vocational expert’s

testimony, determined that both jobs could be performed within the limitations of

the RFC. (Id.) Although the ALJ noted that this work was not performed during

the period of disability alleged in this case, it was performed during the past

fifteen years and is considered past relevant work. Plaintiff does not challenge the

vocational expert’s testimony. Because the undersigned has already determined

that the RFC is supported by substantial evidence, the court finds no error in the

ALJ’s step four analysis.

IV. RECOMMENDATIONS

For the reasons set forth above, the undersigned RECOMMENDS that

plaintiff’s motion for summary judgment be DENIED, that defendant’s motion for

summary judgment be GRANTED, and that the findings of the Commissioner be

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AFFIRMED. 

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to file any objections within 14 days of service,

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule

72.1(d). Failure to file specific objections constitutes a waiver of any further right

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health and

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

issues but fail to raise others with specificity will not preserve all the objections a

party might have to this Report and Recommendation. Willis v. Sec’y of Health

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

Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to Local Rule

72.1(d)(2), any objections must be served on this Magistrate Judge.

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,”•

etc. Any objection must recite precisely the provision 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), Local Rule 72.1(d).

The response must specifically address each issue raised in the objections, in the

same order, and labeled as “Response to Objection No. 1,” “Response to Objection

No. 2,” etc. If the Court determines that any objections are without merit, it may

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rule without awaiting the response.

Date: August 15, 2016 s/Stephanie Dawkins Davis

Stephanie Dawkins Davis

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on August 15, 2016, I electronically filed the foregoing paper

with the Clerk of the Court using the ECF system, which will send electronic

notification to all counsel of record and that I have mailed by United States Postal

Service to the following non-ECF participant: Harold Hicks, 1632 Heatherwood,

Apt. 204, Inkster, MI 48141.

s/Tammy Hallwood

Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov

20

2:15-cv-12329-SJM-SDD Doc # 21 Filed 08/15/16 Pg 20 of 20 Pg ID 586