UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KENNETH ALBERTSON

Plaintiff,

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

_____________________________________/

Case No. 15-12160

Stephanie Dawkins Davis

United States Magistrate Judge

OPINION AND ORDER

CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkt. 14,15)

I. PROCEDURAL HISTORY AND FACTUAL BACKGROUND

A. Proceedings in this Court

On June 14, 2015, plaintiff 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 Victoria A.

Roberts referred this matter to Magistrate Judge Michael Hluchaniuk for the

purpose of reviewing the Commissioner’s decision denying plaintiff’s claims for

disability insurance benefits and supplemental security income. (Dkt. 4). On

January 5, 2016, this matter was reassigned to the undersigned Magistrate Judge.

See Text-Only Order of reassignment dated 1/5/16. On February 29, 2016, the

parties filed a notice of consent to this Magistrate Judge’s authority, which was

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signed by Judge Roberts. (Dkt. 17, 18). This matter is before the Court on crossmotions for summary judgment. (Dkt. 14, 15).

B. Administrative Proceedings

Plaintiff filed the instant claims for a period of disability and disability

insurance benefits on October 27, 2011, alleging that he became disabled on April

28, 2008. (Dkt. 12-2, Pg ID 50). The claims were initially disapproved by the

Commissioner on December 15, 2010. Id. Plaintiff requested a hearing and on

September 25, 2013, plaintiff appeared with counsel before Administrative Law

Judge (ALJ) Michael R. Dunn, who considered the case de novo. (Dkt. 12-2, Pg

ID 66-95). In a decision dated December 23, 2013, the ALJ found that plaintiff

was not disabled. (Dkt. 12-2, Pg ID 47-61). Plaintiff requested a review of this

decision on February 26, 2014. (Dkt. 12-2, Pg ID 42). The ALJ’s decision

became the final decision of the Commissioner when the Appeals Council, on

April 14, 2015, denied plaintiff’s request for review. (Dkt. 12-2, Pg ID 36-41);

Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004).

C. ALJ Findings

Plaintiff was 43 years old at the time of the hearing and 37 years old on the

alleged disability onset date. (Dkt. 12-2, Pg ID 52). Plaintiff had past relevant

work as a cleaner, fast food cook, and fast food manager. Id. The ALJ applied the

five-step disability analysis to plaintiff’s claim and found at step one that plaintiff

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had not engaged in substantial gainful activity since the alleged onset date. Id. At

step two, the ALJ found that plaintiff’s degenerative disc disease of the thoracic

and lumbar spine, diabetes mellitus, obesity, loss of vision in the left eye, and

obstructive sleep apnea were “severe” within the meaning of the second sequential

step. Id. At step three, the ALJ found no evidence that plaintiff’s combination of

impairments met or equaled one of the listings in the regulations. Id. at 54. 

The ALJ determined that plaintiff had the following residual functional

capacity (“RFC”)

After careful consideration of the entire record, I find

that the claimant has the residual functional capacity to

perform light work as defined in 20 CFR 404.1567(b)

except as otherwise stated in this paragraph. The

claimant can lift and carry 20 pounds occasionally and

ten pounds frequently. The claimant can push and pull

within the same weight restrictions. In an eight-hour

work day, with normal breaks, the claimant can sit for a

total of six hours and he can stand/walk for a total of six

hours. The claimant requires the option to alternate

between sitting and standing every 30 minutes provided

that in exercising this option, the claimant will not be off

task more than 10% of the work period. The claimant can

frequently balance and he cannot crouch or climb ladders

or scaffolds. The claimant can occasionally perform each

of the following postural activities: climbing ramps and

stairs; stooping; kneeling; and crawling. The claimant

can tolerate no exposure to unprotected heights. The

claimant must avoid hazardous machinery and he cannot

perform commercial driving. The claimant can read

ordinary news and book print, but he cannot perform

work requiring more than occasional reading or reading

of small print.

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Id. at 54-55. At step four, the ALJ found that plaintiff was unable to perform his

past relevant work, given his RFC. Id. at 60. At step five, the ALJ denied plaintiff

benefits because he could perform a significant number of jobs available in the

national economy. Id. at 60-61.

For the reasons set forth below, plaintiff’s motion for summary judgment is

DENIED, defendant’s motion for summary judgment is GRANTED, and the

findings of the Commissioner are AFFIRMED.

II. ANALYSIS AND CONCLUSIONS

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

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).

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 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

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). 

The scope of this Court’s review is limited to an examination of the record

only. Bass, 499 F.3d at 512-13; Foster v. Halter, 279 F.3d 348, 357 (6th Cir.

2001). When reviewing the Commissioner’s factual findings for substantial

evidence, a reviewing court must consider the evidence in the record as a whole,

including that evidence which might subtract from its weight. Wyatt v. Sec’y of

Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). “Both the court of

appeals and the district court may look to any evidence in the record, regardless of

whether it has been cited by the Appeals Council.” Heston v. Comm’r of Soc.

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Sec., 245 F.3d 528, 535 (6th Cir. 2001). There is no requirement, however, that

either the ALJ or the reviewing court must discuss every piece of evidence in the

administrative record. Kornecky v. Comm’r of Soc. Sec., 167 Fed. Appx. 496, 508

(6th Cir. 2006) (“[a]n ALJ can consider all the evidence without directly

addressing in his written decision every piece of evidence submitted by a party.”)

(internal citation marks omitted); see also Van Der Maas v. Comm’r of Soc. Sec.,

198 Fed. Appx. 521, 526 (6th Cir. 2006).

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.). 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

which has lasted or can be expected to last for a

continuous period of not less than 12 months.

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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.

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.

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“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. Learning Disorder

Plaintiff argues that the ALJ never lists any functional limitations from

plaintiff’s severe cognitive impairments. According to plaintiff, the ALJ does not

give any rationale for his decision, only conclusory statements. Plaintiff takes

issue with the ALJ’S examination of the mental health evidence and the clear error

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in finding plaintiff’s learning disorder as nonsevere. (Dkt. 12-2, Pg ID 52-53). He

argues that the ALJ minimizes the evidence with little discussion citing that

plaintiff was a student who “worked hard.” Id. The evaluation by the ALJ of the

“paragraph B” criteria is superficial and really does not evaluate anything. Id. 

Plaintiff asserts that there is “zero analysis” in evaluating the “paragraph B”

criteria. Id. Plaintiff respectfully disagrees with the ALJ’s analysis. It is wellestablished that “once any one impairment is found to be severe, the ALJ must

consider both severe and nonsevere impairments in the subsequent steps,” and it

becomes “legally irrelevant” that other impairments are not considered severe. 

McGlothin v. Comm’r of Soc. Sec., 299 Fed. Appx. 516, 522 (6th Cir. 2008). 

Here, plaintiff contends that there is no discussion or evaluation at the remaining

steps, because the ALJ superficially rejected plaintiff’s impairment of learning

disability, and as a consequence did not analyze or discuss it during any further

step in the sequential process. 

The Commissioner maintains that substantial evidence supports the ALJ’s

finding that plaintiff’s learning disorder was not severe at step two and asks the

Court to reject plaintiff’s argument that the ALJ’s analysis was “superficial” and

requires remand. The Commissioner points out that plaintiff bears the burden of

showing that he is disabled within the meaning of the Act and this includes the

burden of establishing the existence of a severe medically determinable

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impairment at step two. See 20 C.F.R. § 404.1512(a). According to the

Commissioner, the ALJ reasonably determined that plaintiff did not meet his

step-two burden based on the facts of this case. The ALJ expressly reviewed the

evidence from 1989 related to plaintiff’s learning disorder and found it did not

establish more than mild restrictions in plaintiff’s ability to perform daily

activities, maintain concentration, persistence or pace, or function socially. (Dkt.

12-2, Pg ID 53). The ALJ also found that plaintiff had experienced no episodes of

decompensation on account of his learning disability. Id. In support of these

findings, the ALJ explained that, despite his learning disability, 

[t]he claimant remained in and graduated from a general

education curriculum, but he qualified for one 55 minute

period of special education assistance daily. A

psychological evaluation in the 12th grade showed the

claimant to be reading at 12th grade level. Plaintiff was

described as a good student who worked hard. Nothing

else in the claimant’s voluminous records [ ] documents

subjective complaints, observed signs or symptoms, or

other significant problems related to the claimant’s

learning disability. 

Id. (internal citations omitted)). Thus, in essence, the ALJ found that plaintiff

provided no evidence that his learning disability in any way affected him during

the period at issue; the only records referring to this impairment date back to 1989. 

(Dkt. 12-2, Pg ID 53). Also, plaintiff’s 1989 records did not show any significant

functional impairment since plaintiff was described as a good student, and

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exhibited grade appropriate reading ability. (Dkt. 12-2, Pg ID 53 supported at Dkt.

12-7, Pg ID 283, 292). Accordingly, the Commissioner says that the ALJ’s

analysis was not “superficial”; rather, there is no other relevant evidence that the

ALJ failed to consider. Notably, plaintiff – who bears the burden of establishing

severity – did not allege any mental limitations in the documents he submitted to

the Agency (see Dkt. 12-6, Pg ID 218), and does not point to any evidence that

would support a finding that his learning disorder severely affected his ability to

work. Thus, the Commissioner maintains that there is no error.

The Court rejects plaintiff’s argument of reversible error regarding the

ALJ’s Step 2 analysis. As plaintiff acknowledges, the omission of an impairment

from the step two findings does not typically warrant remand because the ALJ

found that plaintiff had other impairments that met the criteria for severity at step

two, and thus proceeded to step three in the sequential analysis. See Maziarz v.

Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987) (holding that

because the Secretary had found at least one other “severe” limitation, the severity

of Maziarz’s cervical condition was irrelevant for the step two analysis). If a

claimant has more than one impairment, the ALJ must consider all medically

determinable impairments when assessing the RFC, including those that are not

severe. 20 C.F.R. § 404.1545(a)(3); Fisk v. Astrue, 253 Fed.Appx. 580, 584 (6th

Cir. 2007) (noting that once the ALJ determines at least one severe impairment, he

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“must consider limitations and restrictions imposed by all of an individual’s

impairments, even those that are not ‘severe’”). A step two omission is of “little

consequence,” provided that the ALJ considered “all impairments, severe and

nonsevere,” in crafting the RFC. See Pompa v. Comm’r of Soc. Sec., 73

Fed.Appx. 801, 803 (6th Cir. 2003).

Plaintiff contends, however, that the ALJ’s failure to find his cognitive

impairment “severe” calls the entirety of the ALJ’s evaluation into question. In

the Court’s view, however, plaintiff fails to show that his cognitive impairment

was a severe impairment and even if it were a severe impairment, plaintiff does

not explain how that cognitive impairment has worsened such that he was

previously able to work in several occupations, but now that impairment is work

preclusive. Rather, plaintiff makes a conclusory argument that the ALJ’s analysis

was lacking in any rationale. Yet, there is nothing in the treatment records

suggesting that plaintiff’s cognitive impairment “significantly limits [his] physical

or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c),

416.920(c). For these reasons, plaintiff’s step two argument is rejected.

D. Listing

Plaintiff next contends that the ALJ entirely ignored Step 3. According to

plaintiff, “[t]here is no explanation, no reasoning, and no discussion whatsoever as

to how the ALJ determined that listings were not met.” Plaintiff contends that the

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ALJ makes conclusory statements that he does not meet any listing, but never

evaluates the objective medical evidence in making his decision. According to

plaintiff, the “lack of rationale and explanation is astounding considering the

claimant’s imaging results discussed previously and medical observations from

both treating and consultative examiners.” 

Plaintiff’s argument fails in that it wholly ignores the extensive Step 3

analysis contained in the ALJ’s decision. As the Commissioner points out, the

ALJ provided almost a full page of analysis at step three, where he considered

several listings, including listings 1.04, 2.02, 2.03, 2.04, 3.02, 3.03 and 3.09, and

stated why plaintiff’s impairments did not satisfy the listings’ criteria. (Dkt. 12-2,

Pg ID 54). The ALJ also indicated that he considered plaintiff’s obesity and

diabetes, and found that these impairments did not “affect[ ] any bodily system to a

degree meeting a listing.” Id. Then, to the extent plaintiff claims that a more

detailed analysis of the record evidence was required, the ALJ did just that at the

RFC stage, where he considered plaintiff’s treatment notes, examinations, and

objective tests. (Dkt. 12-2, Pg ID 56-59). Also, at the RFC stage, the ALJ relied

on the opinion of Dr. McManus, a “highly qualified physician[ ]... who [is] also

[an] expert[ ] in Social Security disability evaluation,” 20 C.F.R.

§ 404.1527(e)(2)(i), who reviewed plaintiff’s records and found that he retained

the ability to perform a limited range of light work, not that his impairments met a

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listing. (Dkt. 12-3, Pg ID 104-108). The Court agrees with the Commissioner that

this alone is sufficient to support the ALJ’s step three determination. See e.g.,

Gower v. Comm’r of Soc. Sec., 2015 WL 163830, at *9 (E.D. Mich. Jan. 13, 2015)

(“The Court agrees with the Magistrate Judge’s conclusion that the ALJ’s cursory

discussion of Listing 1.04 does not require remand, since the ALJ’s opinion as a

whole demonstrates sufficient consideration of the relevant evidence. For

instance... [t]he ALJ [ ] stated that she gave great weight to the opinion of Dr.

Cole. Dr. Cole opined that Plaintiff was not disabled, despite indicating that he

considered Listing 1.04”). 

At Step 3 of the sequential analysis, plaintiff retains the burden of proving

that she met or medically equaled a Listing. See Jones v. Comm’r of Soc. Sec.,

336 F.3d 469, 474 (6th Cir. 2003). Here, plaintiff does not cite to any specific

listing or explain how the evidence in the record satisfies a listing’s criteria;

instead, he only summarily states that “[t]he lack of rationale and explanation [by

the ALJ] is astounding considering the claimant’s imaging results... and medical

observations from both treating and consultative examiners.” Pl. Br. at 17-18. 

The Court further agrees with the Commissioner that, absent a showing by the

claimant that his impairments meet the specified listing criteria, he cannot

establish actionable error, and the ALJ’s decision should be affirmed. See Harvey

v. Comm’r of Soc. Sec., 2014 WL 5465531, at *4 (E.D. Mich. Oct. 28, 2014)

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(“Although the ALJ did not explain his reasoning at Step Three, Harvey has not

shown that she suffered prejudice as a result.”); Moran v. Comm’r of Soc. Sec.,

2014 WL 4197366, at *26 (E.D. Mich. Aug. 22, 2014) (“ALJ’s analysis does not

need to be extensive if the claimant fails to produce evidence that she meets the

Listing.”). Plaintiff’s Step 3 argument is, therefore, rejected.

E. Residual Functional Capacity

Plaintiff makes a host of arguments seemingly related to the RFC findings,

including that plaintiff’s treating physician opinions were not given controlling

weight. According to plaintiff, there is no discussion of the objective medical

evidence in the decision, no discussion of the factual basis for the decision, and

not a single discussion in the decision of special factors such as medication side

effects, fatigue, and pain that the plaintiff suffers. Plaintiff further asserts that the

“ALJ rejects the treating physician medical opinion of Dr. Shuayto, MD, with the

caveat of an unrecognizable standard beyond any that SSA recognizes.” 

Specifically, the ALJ states that he gives the medical opinion “limited weight” due

to the fact that the objective medical testing is not corroborative “of any injury or

pathology which could be expected to give rise to such functional limitations.” 

(Dkt. 12-2, Pg ID 59). Plaintiff asserts that it is unclear how objective medical

testing could ever meet such a burden and upon what the ALJ relies for his

analysis. Plaintiff points out that the objective medical testing reveals severe

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injuries including positive straight test; limitation rotation of spine; MRI testing;

and EMG testing results. Thus, plaintiff asserts that the reasoning of the ALJ is

“non-existent and flawed.” Plaintiff also claims that “the evidence was not

evaluated nor weighed.” Dr. Shuayto opined that claimant would need to change

positions more than once every two hours, could stand and/or walk 30 minutes, sit

for 30 minutes, lift 10 pounds occasionally and 5 pounds frequently, and bend and

stoop occasionally. (Dkt. 12-9, Pg ID 791-792). Plaintiff maintains that all of the

restrictions by Dr. Shuayto would be reasonable considering the plaintiff’s

medical history, yet the ALJ makes no attempts to explain why those limitations

would be unreasonable nor does he state any factual basis for rejecting Dr.

Shuayto’s medical opinion with regards to functional limitations. According to

plaintiff, the ALJ never evaluates Dr. Shuayto’s medical opinion in context and

never evaluates the medical opinion considering his specialty of Neurology and

the objective medical testing, which includes: MRI of the thoracic spine revealed

small disc protrusion at T4-T5, disc bulging at T5-T6, and central disc protrusion

at T7-T8 (Dkt. 12-2, Pg ID 57); and MRI of the lumbar spine reveals disc

herniation at L4-L5, disc herniation at L2-L3, and disc bulging at L1-L2 with mild

anterior impression upon the thecal sac (Dkt. 12-9, Pg ID 788); Dr. Shuayto

performed lumbar and thoracic injections (Dkt. 12-10, Pg ID 915, 923, 933). 

Plaintiff also points out that the ALJ states that Dr. Shuayto’s medical records

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indicate the plaintiff has normal gait, stance, and strength, (Dkt. 12-2, Pg ID 59)

but says this is misleading by the ALJ as the medical records consistently

demonstrate positive bilateral straight leg testing and limited range of motions. 

(Dkt. 12-10, Pg ID 913-954). According to plaintiff, the ALJ points to no

substantial evidence in the record to dispute Dr. Shuayto’s medical opinions.

Plaintiff also finds fault with the ALJ’s reliance on the “non-examining

MD” medical opinion, who was neither a treating physician nor an examining

physician but was given controlling “significant weight.” (Dkt. 12-2, Pg ID 57). 

According to plaintiff, the ALJ never states who that physician is but notes that the

opinion is “unbiased.” Id. Plaintiff contends that a DDS examiner is a physician

who was paid by SSA to deny claimant’s claim for Social Security and could

hardly be considered a neutral third party. Plaintiff also asserts that the

non-examining physician only reviewed a very small portion of the medical

records that were available at the time he reviewed the file. Yet, the ALJ “blindly”

adopted the non-examining medical opinion to fit his RFC despite the clear

medical evidence and dismisses all treating and examining physicians based on

vague and irrelevant reasoning. 

The Court agrees with the Commissioner’s assertions that the ALJ

reasonably evaluated the medical opinions, and other supporting evidence in the

record. In this case, the ALJ did not reject Dr. Shuayto’s opinion. Rather, the ALJ

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assigned “limited weight” to Dr. Shuayto’s opinion and “substantial weight” to Dr.

McManus’s assessment. (Dkt. 12-2, Pg ID 57, 59). He conducted a detailed

review of the evidence (see Dkt. 12-2, Pg ID 55-60), finding that it was

“reasonably consistent” with the opinion of Dr. McManus (Dkt. 12-2, Pg ID 57),

but not entirely corroborative of Dr. Shuayto’s opinion. (Dkt. 12-2, Pg ID 59).

Concerning Dr. Shuayto’s opinion, the ALJ found that it was “not corroborated by

objective imaging, electrodiagnostic or clinical findings of any injury or pathology

which could be expected to give rise to such functional limitations.” (Dkt. 12-2,

Pg ID 59). While plaintiff states that it is “unclear how objective medical testing

could ever meet such a burden and what the ALJ relies [on] for his analysis,” the

Commissioner correctly points out that the ALJ found that the evidence did not

support RFC restrictions as significant as Dr. Shuayto assessed. Indeed, the ALJ

subsequently explained that,

despite the claimant’s frequent visits to his physicians’

offices and to the hospital emergency room, there is very

little objective imaging, laboratory or clinical evidence

supporting the claimant’s allegations. Imaging studies

have revealed mostly mild problems. Physical

examinations of the claimant have resulted in mostly

normal findings concerning the claimant’s gait, stance

and strength. Much of the medical source statement

provided by Dr. Shuayto finds no corroboration in Dr.

Shuayto’s abundant contemporaneous treatment records.

(Dkt. 12-2, Pg ID 59 (citations omitted)). 

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The Court agrees with the Commissioner that the record supports the ALJ’s

conclusion that plaintiff’s objective medical testing was mostly unremarkable. For

example, the NCV examination that Dr. Shuayto ordered was essentially normal

and did not reveal any problems associated with plaintiff’s hands and arms. (Dkt.

12-10, Pg ID 939). Plaintiff’s MRI examinations revealed disc herniations and

protrusions, but no compromise of the spinal cord. (Dkt. 12-9, Pg ID 787-788). 

Also, Dr. Shuayto repeatedly observed on examination that plaintiff was in no

distress, and retained normal gait, and intact strength and sensation throughout. 

(Dkt. 12-10, Pg ID 919, 927-928). While plaintiff notes that the doctor also

observed some limitation in the range of motion of plaintiff’s spine and positive

straight leg raise findings, the Commissioner maintains that these findings alone

are insufficient to justify limitations as significant as Dr. Shuayto assessed. The

Court agrees that the ALJ’s decision in this regard is supported by the record

because other doctors who have met with plaintiff have also identified largely

unremarkable objective findings like no motor, sensory or reflex deficits, normal

gait, full range of motion of all extremities, negative straight leg raise test results,

and good range of motion and no weakness in the lumbar region. (Dkt. 12-7, Pg

ID 439; Dkt. 12-8, Pg ID 519). Dr. McManus considered these latter findings in

formulating his opinion (Dkt. 12-3, Pg ID 104 (considering plaintiff’s

“8/9/11-ER” visit)), and the ALJ reasonably found that they did not support the

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degree of RFC restriction Dr. Shuayto assessed.

The ALJ’s RFC is also supported by other evidence in the record. For

example, the ALJ found that plaintiff’s reported activity level also supported his

RFC finding. (Dkt. 12-2, Pg ID 59-60). In the function report plaintiff completed

for the Agency, he reported that he cared for his kids and pets, had no problems

performing self-care activities, cooked, drove, and performed household chores

like doing laundry, washing dishes, vacuuming, sweeping and raking the lawn. 

(Dkt. 12-6, Pg ID 214-217). Apart from these activities, plaintiff’s records also

show that he shoveled snow, exercised with a Wii Fit that he purchased, and did

“physical work” as part of a class he participated in. (Dkt. 12-7, Pg ID 347; Dkt.

12-9, Pg ID 680, 694). This evidence further supports the ALJ’s decision to rely

on the less restrictive assessment of Dr. McManus. 

The Court concludes that the ALJ’s weighing of the evidence to formulate

the RFC is supported by substantial evidence. As set forth above, even if there is 

substantial evidence to support an opposite conclusion, the Court may not reverse

the Commissioner’s decision unless it is unsupported by substantial evidence. In

this case, the Commissioner’s administrative decision falls within the zone of

choice outlined in Felisky v. Brown, supra. 

Based on the foregoing, plaintiff’s motion for summary judgment is

DENIED, defendant’s motion for summary judgment is GRANTED, and the

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findings of the Commissioner are AFFIRMED.

IT IS SO ORDERED.

Date: September 30, 2016 s/Stephanie Dawkins Davis

Stephanie Dawkins Davis

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on September 30, 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.

s/Tammy Hallwood

Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov

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