UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANTHONY J. SIMKINS, 

Plaintiff, Civil Action No. 15-12731

v. HON. SEAN F. COX

 U.S. District Judge

HON. R. STEVEN WHALEN

COMMISSIONER OF SOCIAL U.S. Magistrate Judge

SECURITY,

Defendant.

_____________________________/

REPORT AND RECOMMENDATION

Plaintiff Anthony J. Simkins (“Plaintiff”) brings this action under 42 U.S.C. §405(g)

challenging a final decision of Defendant Commissioner denying his application for

Disability Insurance Benefits (“DIB”) under the Social Security Act. Both parties have filed

summary judgment motions which have been referred for a Report and Recommendation

pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, I recommend that

Plaintiff’s Motion for Summary Judgment be GRANTED to the extent that the case is

remanded to the administrative level for further administrative proceedings, and that

Defendant’s Motion for Summary Judgment be DENIED. 

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I. PROCEDURAL HISTORY

On March 28, 2012, Plaintiff filed an application for DIB, alleging disability as of

May 10, 2003 (Tr. 150). After the initial denial of the claim, Plaintiff requested an

administrative hearing, held on November 26, 2013 in Toledo, Michigan before

Administrative Law Judge (“ALJ”) Ryan Johannes (Tr. 36). Plaintiff, unrepresented, 1

testified (Tr. 42-58), as did Vocational Expert (“VE”) Charles McBee (Tr. 58-64). On

February 20, 2014, ALJ Johannes found that Plaintiff was not disabled on or before the

December 31, 2008 expiration of DIB benefits (Tr. 30-31). On May 19, 2015, the Appeals

Council denied review (Tr. 1-3). Plaintiff filed for judicial review of the final decision in this

Court on July 27, 2015. 

On February 23, 2016, Defendant Commissioner filed a motion to dismiss, arguing

that Plaintiff’s July 27, 2015 filing was outside the 60 days allowed to commence judicial

review under 42 U.S.C. 405(g). Docket #12. On June 23, 2016, the Honorable Sean F. Cox

adopted my recommendation to deny Defendant’s motion for dismissal. Docket #15, 19. 

II. BACKGROUND FACTS

Plaintiff, born August 6, 1967, was 41 on the date last insured (“DLI”) of December

31, 2008 and 46 when the ALJ issued his decision (Tr. 31, 150). He completed two years

of college and worked previously as a fabricator and mill wright (Tr. 179). He alleges

1

The original hearing of September 19, 2013 was adjourned to give Plaintiff additional

time to find an attorney (Tr. 66-73). 

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disability due to diabetes, bone spurs of the bilateral feet, right eye blindness, left shoulder

rotator cuff damage, right shoulder nerve damage, neuropathy of the feet, arthritis, bladder

problems, and lower back and hip ligament damage (Tr. 178). 

 A. Plaintiff’s Testimony

Plaintiff offered the following testimony.

He lived in Adrian, Michigan, stood 5' 7", and weighed 223 pounds (Tr. 43). He was

left-handed (Tr. 44). He lived with his wife and 10-year-old daughter (Tr. 43). He drove

himself to the hearing but generally limited his driving to short distances (Tr. 43). He had

medical insurance (Tr. 44). Since becoming disabled in May, 2003, he ran “a small hotrod

camp” in 2011 for four hours every Saturday (Tr. 44). His last full-time work was as a

fabricator in 2003 (Tr. 44). In 2003, his employer let him go due to limitations brought on

by neuropathy of the feet, “sugar issues,” and injuries from both a workplace accident and

an automobile collision (Tr. 45). He received Workers’ Compensation benefits (Tr. 45). 

The vehicle accident resulted in torn hip and back ligaments and shattered a bone in

his back (Tr. 46). He experienced hip pain upon even minimal activity and one leg was

shorter than the other (Tr. 46). The right eye blindness caused him to overwork the left eye,

resulting in “starbursts” in his vision (Tr. 46). He continued to experience foot pain and

stiffness and ankle swelling due to neuropathy (Tr. 46). He also experienced left shoulder

pain due to the vehicle accident and right shoulder joint problems (Tr. 47). Due to intestinal

damage and diabetes, he experience chronic constipation (Tr. 48). Both wrists tended to “fall

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asleep” after overuse due to prior wrist fractures (Tr. 48).

The ALJ then directed Plaintiff to discuss his condition prior to the DLI of December

31, 2008 (Tr. 48). 

Plaintiff underwent up to 27 steroid injections to the spine in 2004 and 2005 (Tr. 48). 

At the same time, he treated with a chiropractor on a regular basis (Tr. 48). The right eye

blindness, beginning in 1993, was attributable to diabetes (Tr. 49). As of 2003, he was able

to stay on his feet for a maximum of two hours a day before experiencing heaviness and

numbness (Tr. 49). He underwent October, 2002 arthroscopic surgery to repair the rotator

cuff tear sustained in the June, 2002 accident (Tr. 50-51). He had not been treated for

depression between May, 2003 and December, 2008 due to “[lack of] funding” (Tr. 52). 

Between May, 2003 and December 31, 2008 (“relevant period”) he experienced hand

numbness and gripping problems but did not experience medication side effects other than

constipation (Tr. 52). He denied the use of alcohol or marijuana (Tr. 53). During the

relevant period, he was able to take care of his personal needs, prepare meals, wash “some

dishes,” vacuum, and use a computer for about an hour every day (Tr. 54). He was unable

to do laundry, grocery shop, or do significant yard work (Tr. 54-55). He spent most of his

time caring for his diabetic daughter (Tr. 55). He was unable to walk more than a quarter of

a mile, stand for more than two hours, or sit for more than one (Tr. 56). He was unable to

lift more than 15 pounds (Tr. 56). He experienced significant weakness when reaching

overhead and problems gripping (Tr. 57). 

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B. Medical Evidence2

1. Treating Sources

A January, 2003 MRI of the lumbar spine was “fairly unremarkable” (Tr. 330). 

April, 2003 imaging studies of the right foot showed only minimal degenerative changes of

the first toe (Tr. 328). In August, 2003, Plaintiff noted that his vision had been stable in the

past year (Tr. 257). In January, 2004, Steven N. Gross, D.O. examined Plaintiff, advising

him to avoid “a great deal of bending or lifting (Tr. 396). Plaintiff exhibited full muscle

strength with a normal knee and and ankle motion (Tr. 395). In March, 2004, Plaintiff

sought treatment for a head cold (Tr. 355) 

March, 2005 treating records by Jody Rhames, M.D. note tenderness and a reduced

range of right shoulder motion (Tr. 352). May and September, 2005 records state that

Plaintiff’s health was stable despite lower back pain (Tr. 383-384). Paul Shapiro, M.D.

administered epidural injections (Tr. 384). Treating notes for August, 2005 state that

Plaintiff planned to resume motocross cycling to stay in shape (Tr. 385). October, 2005

physical therapy records states that Plaintiff experienced increased lower back pain with

activity (Tr. 382). He was diagnosed with chronic lower back pain “without radiculopathy”

2

Discussion of the evidence pertaining to Plaintiff’s condition before the alleged onset

of disability date of May 10, 2003 and after the DLI of December 31, 2008 is included for

background purposes only. Treatment for medical conditions unrelated to the application for

DIB benefits, while reviewed in full, are omitted from mention here. 

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(Tr. 382). Dr. Shapiro administered six steroid injections to the lower back (Tr. 382). 

December, 2005 physical therapy records state that Plaintiff’s lower back condition was

“much better” with only “one episode” of sciatica (Tr. 380-381). 

January, 2007 records state that Plaintiff completed one month of physicaltherapy(Tr.

349). In April, 2007, Plaintiff was treated for athlete’s foot, and the following month

experienced sunburn of the top of the feet while mowing the yard (Tr. 347-348). May, 2007

imaging studies of the right foot showed soft tissue swelling (Tr. 302). July, 2007

chiropractic records state that Plaintiff was a candidate for “intensive” care consisting of

three sessions a week for 12 weeks (Tr. 260). Chiropractor Dr. Sullivan observed a “slight

right lumbar list” and “slight pelvic unleveling” on the left (Tr. 261). December, 2007

ophthalmological records note Plaintiff’s report of good left eye vision without “floaters”

(Tr. 254). Examination records (including February, 2009 records) 20/25 vision on the left

(Tr. 254, 339, 340). Plaintiff continued to receive intermittent chiropractic treatment until

mid-2008 for the conditions of fatigue, neck pain, stiffness, and numbness and tingling of

both hands (Tr. 263, 268). An October, 2008 stress test showed an unremarkable ejection

fraction (Tr. 270). Ophthalmologist Charles K. Dabbs, M.D. reported that Plaintiff was

“doing well” (Tr. 334). 

Dr. Rhames’ December, 2009 records state that Plaintiff was writing a “screen play”

(Tr. 344). In March, 2010, Plaintiff reported that his vision had remained stable since a

February, 2009 examination (Tr. 338). Chiropractic records from January, 2014 were

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negative for recent fractures but the presence of degenerative disc disease (Tr. 417). The

records note the symptoms of fatigue of the lower back and hands; hand numbness and pain;

and neck, back, and leg pain (Tr. 419). 

The same month, Dr. Dabbs noted the left eye had a Posterior Chamber Intraocular

Lens Implantation (“PCIOL”) with “limited visual fields secondary to diabetic retinal

ischemic and laser treatment” (Tr. 421). He noted that Plaintiff “best-corrected vision” was

20/30 (Tr. 421). He noted that Plaintiff also experienced Charles Bonnet syndrome of the

left eye (Tr. 421). Dr. Dabbs found that Plaintiff was “permanently visually disabled and 3

no improvement [was] expected.” 

 2. Non-Treating Sources

In May, 2012, Saada Abbas, M.D. performed a non-examining review of the treating

and consultative records on behalf of the SSA, finding insufficient evidence through

December 31, 2008 to make a disability finding (Tr. 75-80). 

In December, 2013, R. Scott Lazzara, M.D. performed a consultative examination on

behalf of the SSA, noting Plaintiff’s report of disability due to uncontrolled diabetes, lower

back and hip problems, right eye blindness, bilateral shoulder problems, neuropathy of the

feet, and arthritis (Tr. 369, 404). Plaintiff reported that he sustained injuries in a 1991

3

Charles Bonnet Syndrome, associated with diabetic retinopathy, “causes vivid,

complex, recurring visual hallucinations, usually . . . in older adults with later-life vision

loss.” http://www.visionaware.org/info/your-eye-condition/guide-to-eye-conditions/

charles-bonnet-syndrome/125. (Last visited, May 12, 2017). 

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motorcycle accident and was again injured in a 2002 accident resulting in right shoulder and

lower back problems (Tr. 369). He admitted that he was able to drive, do household chores,

and spend time “filming with a friend” (Tr. 370). He reported that he could stand or sit for

around one hour, walk a mile, and lift 40 pounds “to the waist but [not] overhead” (Tr. 370). 

He exhibited a slightly reduced range of bilateral shoulder, knee and lumbar spine motion

(Tr. 371, 373). Dr. Lazzara found that Plaintiff did not require the use of a cane (Tr. 373). 

Dr. Lazzara also completed an assessment of Plaintiff’swork-related abilities, finding

that he could lift up to 20 pounds occasionally (up to 50 on the right); sit for six hours in an

eight-hour workday and stand, or walk for four hours (Tr. 364). He found that Plaintiff

would need to change position once an hour (Tr. 364). He limited Plaintiff to occasional

reaching overhead and push/pulling (Tr. 365). He also found that Plaintiff could climb,

balance, stoop, knee, and crouch on an occasional basis (Tr. 366). Dr. Lazarra precluded all

crawling (Tr. 366). He found that due to right-eye blindness, Plaintiff was unable to read

small print (Tr. 366). Dr. Lazarra precluded all exposure to unprotected heights, extreme

cold, and moving mechanical parts (Tr. 367). He limited Plaintiff to occasional driving,

exposure to extreme heat, operating a motor vehicle, and vibration (Tr. 367). He found no

limitation in activities of daily living (Tr. 368, 403). 

C. Vocational Expert Testimony

VE McGee classified Plaintiff’s past relevant work as a stock-parts fabricator as

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semiskilled and exertionally medium (Tr. 239). The ALJ then posed the following set of 4

restrictions, describing a hypothetical individual of Plaintiff’s age, education, and work

history:

[A]ll the functions of light exertional work; occasionally climb stairs and

ramps; never climb ladders, ropes or scaffolds; occasionally stoop, kneel,

crouch, and crawl; can frequently reach above the shoulder and handle; must

avoid concentrated exposure to fumes, odors, dusts, gases, poor ventilation, et

cetera; is able to perform work that does not require bilateral depth perception

for visual acuity or accommodation . . . . due to single-eyed vision. Would

such a person be able to perform the Claimant’s past relevant work? (Tr. 61). 

Based on the above restrictions, VE testified that the hypothetical individual would

be unable to perform Plaintiff’s past relevant work but could performthe light, unskilled jobs

of a palletizer (1,500 positions in the regional economy); bagger of garments (2,000); and

shipping and receiving weigher (1,500-2,000) (Tr. 62). The VE testified that if the same

individual were limited to sedentary rather than exertionally light work, he could perform the

work of a telephone quotation clerk (1,500-2,000); table worker (1,000); and document

preparer (10,000) (Tr. 62-63). The VE stated that the need for a sit/stand “at will” option

would not change the sedentary job numbers (Tr. 63). He testified that the need to be off task

for 20 percent or more of the workday, or, more than one absence each month would

4

20 C.F.R. § 404.1567(a-d) defines sedentary work as “lifting no more than 10 pounds

at a time and occasionally lifting or carrying articles like docket files, ledgers, and small

tools; light work as “lifting no more than 20 pounds at a time with frequent lifting or carrying

of objects weighing up to 10 pounds;” medium work as “lifting no more than 50 pounds at

a time with frequent lifting or carrying of objects weighing up to 25 pounds;” and that

exertionally heavy work “involves lifting no more than 100 pounds at a time with frequent

lifting or carrying of objects weighing up to 50 pounds. 

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preclude all work (Tr. 64). 

The VE stated that his testimony was consistent with the information found in the

Dictionary of Occupational Titles except for his finding regarding a sit/stand option which

was based on his own professional experience (Tr. 61, 63). 

D. The ALJ’s Decision

Citing Plaintiff’s treating records, ALJ Johannes found that Plaintiff experienced

the severe impairments of “lumbar degenerative disc disease, cervical degenerative disc

disease, right eye blindness, diabetes mellitus, and residuals of right shoulder injury” but that

none of the impairments met or equaled a listed impairment under 20 C.F.R. Part 404,

Subpart P, Appendix 1 (Tr. 24-25). The VE found that on or before the date last insured of

December 31, 2008, Plaintiff retained the Residual Functional Capacity (“RFC”) for

exertionally light work with the following additional limitations: 

[O]ccasionally climb stairs and ramps; occasionally stoop, kneel, crouch, and

crawl; never climb ladders, ropes or scaffolds; frequently reach above the

shoulder and handle; must avoid concentrated exposure to fumes, odors, dusts,

gases, poor ventilation, etc.; must perform work that does not require bilateral

depth perception, or visual acuity, or accommodation due to single eye vision

(Tr. 25). 

Citing the VE’s findings, the ALJ found that while Plaintiff was unable to perform his past

relevant work, he could perform the exertionally light, unskilled work of a palletizer, bagger

of garments, and shipping and receiving weigher (Tr. 30, 62). 

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The ALJ discounted Plaintiff’s allegations of limitation. He noted that a January,

2003 MRI of the lumbar spine was unremarkable and that May, 2008 treatment notes showed

only mild lumbar spine abnormalities (Tr. 27). The ALJ observed “a break in chiropractic

treatment fromMay, 2008 to January, 2014” and that the recent records showed only“routine

and conservative treatment” (Tr. 27). He commented that Plaintiff had “relatively little

medical treatment for the allegedly disabling impairments” despite having health insurance

for the past 18 years (Tr. 29). He noted that while Plaintiff experienced right eye blindness,

the left eye vision was “good” (Tr. 27). He cited Plaintiff’s admission to Dr. Lazzara that he

could lift up to 40 pounds, drive, and perform activities of daily living (Tr. 28). The ALJ

noted that while Dr. Lazzara conducted the examination in December, 2013 (five years after

the expiration of benefits) Plaintiff [did] not assert that his physical abilities [had] improved

since the date last insured” (Tr. 28). 

III. STANDARD OF REVIEW

The district court reviews the final decision of the Commissioner to determine

whether it is supported by substantial evidence. 42 U.S.C. §405(g); Sherrill v. Secretary of

Health and Human Services, 757 F.2d 803, 804 (6 Cir. 1985). Substantial evidence is more th

than a scintilla but less that a preponderance. It is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.

389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB,

305 U.S. 197, 229, S. Ct. 206, 83 L.Ed.126 (1938)). The standard of review is deferential and 

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“presupposes that there is a ‘zone of choice’ within which decision makers can go either way,

without interference from the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6 Cir. th

1986)(en banc). In determining whether the evidence is substantial, the court must “take into

account whatever in the record fairly detracts fromits weight.” Wages v. Secretary of Health

& Human Services, 755 F.2d 495, 497 (6 Cir. 1985). The court must examine the th

administrative record as a whole, and may look to any evidence in the record, regardless of

whether it has been cited by the ALJ. Walker v. Secretary of Health and Human Services,

884 F.2d 241, 245 (6 Cir. 1989). th

 IV. FRAMEWORK FOR DISABILITY DETERMINATIONS

 Disability is defined in the Social Security Act as 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 12 months.” 42 U.S.C. §423(d)(1)(A). In

evaluating whether a claimant is disabled, the Commissioner is to consider, in sequence,

whether the claimant: 1) worked during the alleged period of disability; 2) has a severe

impairment; 3) has an impairment that meets or equals the requirements of an impairment

listed in the regulations; 4) can return to past relevant work; and 5) if not, whether he or she

can perform other work in the national economy. 20 C.F.R. §416.920(a). The Plaintiff has

the burden of proof at steps one through four, but the burden shifts to the Commissioner at

step five to demonstrate that, “notwithstanding the claimant's impairment, he retains the

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residual functional capacity to perform specific jobs existing in the national economy.” 

Richardson v. Secretary of Health & Human Services, 735 F.2d 962, 964 (6th Cir.1984).

V. ANALYSIS

A. The Treating Physician Analysis

Plaintiff argues first that the ALJ erred by rejecting Dr. Dibbs’ January, 2014 finding

of permanent disability due to vision problems. Plaintiff’s Brief, 16-18, Docket #24, Pg ID 

581 (citing Tr. 28, 421). He contends that instead of simply discounting the disability

opinion, the ALJ was required to recontact Dr. Dibbs’ for “clarification” of the treating

findings. Id. 

“[I]f the opinion of the claimant's treating physician is supported by medically

acceptable clinical and laboratorydiagnostic techniques and is not inconsistent with the other

substantial evidence in [the] case record, it must be given controlling weight.” Hensley v.

Astrue, 573 F.3d 263, 266 (6th Cir. 2009)(internal quotation marks omitted)(citing Wilson,

378 F.3d 541, 544 (6 Cir. 2004); 20 C.F.R. § 404.1527(c)(2)). However, in the presence of th

contradicting substantial evidence, the ALJ may reject all or a portion of the treating source's

findings, see Warner v. Commissioner of Social Sec., 375 F.3d 387, 391-392 (6th Cir. 2004),

provided that he supplies “good reasons” for doing so. Wilson, at 547; 20 C.F.R. §

404.1527(c)(2)) . The failure to articulate “good reasons” for rejecting a treating physician's 5

5

In explaining the reasons for giving less than controlling weight to the treating

physician opinion, the ALJ must consider (1) “the length of the ... relationship” (2)

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opinion constitutes reversible error. Gayheart v. CSS, 710 F.3d 365, 376 (6th Cir. 2013). 

“[T]he Commissioner imposes on its decision-makers a clear duty to ‘always give good

reasons in our notice of determination or decision for the weight we give [a] treating source's

opinion.’” Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011). “These reasons must be

‘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 medical

opinion and the reasons for that weight.’ ” Gayheart, at 376 (citing SSR 96–2p, 1996 WL

374188, *5 (1996)).

In support of the rejection of the “disability” opinion, the ALJ cited Dr. Dibbs’

February, 2009 records that Plaintiff’s left eye vision was “good” approximately one month

following the DLI of December 31, 2008 (Tr. 27). The ALJ then addressed Dr. Dibbs’

January, 2014 that Plaintiff was disabled as a result of vision problems: 

No weight is given to Dr. Dabbs’ opinion regarding the claimant’s

employability, as this is an issue reserved to the Commissioner. . . . However,

some weight is given to his opinion regarding the claimant’s visual acuity, as

he is a treatment provider with a longitudinal treatment history and his opinion

is consistent with his treatment notes and the claimant’s credible testimony. 

Dr. Dabbs first began treating the claimant in 1996, and has continued to this

date. His treatment notes indicate that the claimant’s right eye has required a

prosthetic since 2007. . . . Nonetheless, the claimant’s visual limitation was

accounted for in the [assessed] residual functional capacity outlined above (Tr.

28). 

“frequency of examination,” (3) “nature and extent of the treatment,” (4) the “supportability

of the opinion,” (5) “consistency ... with the record as a whole,” and, (6) “the specialization

of the treating source.” Wilson, at 544. 

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In the RFC, the ALJ included a restriction to “work that does not require bilateral depth

perception, or visual acuity, or accommodation due to single eye vision” (Tr. 25). 

The ALJ’s rationale for rejecting Dr. Dibbs’ January, 2014 disability opinion is well

supported and explained. The Commissioner, not a treating source, is responsible for

deciding whether a claimant meets “the statutory definition of disability.” 20 C.F.R. §

404.1527(d)(1). While a treating source opinion regarding a claimant’s medical condition is

entitled to deference, the SSA “will not give any special significance to the source of an

opinion on issues reserved to the Commissioner.” § 404.1527(d)(3)(emphasis added). The

ALJ noted that in contrast to Dr. Dibbs’ disability opinion, his treating records for the

relevant period showed “good” left eye vision (Tr. 27). Plaintiff cites a number Dr. Dibbs

records for the relevant period. Plaintiff’s Brief at 17 (citing Tr. 254-257, 331-340, 420-421). 

However, these records generallyundermine rathersupport the allegations of disabling vision

problems: (Tr. 254)(denied “flashers” or “floaters” in left eye vision), (Tr. 255)(rare or

occasional floaters), (Tr. 256)(no floaters), (Tr. 256)(no ocular pain or floaters), and

approximately one month after the DLI (Tr. 234)(doing well). 

Plaintiff’s argument that the ALJ was required to recontact Dr. Dibbs for

“clarification” of the treating opinion is not well taken. To be sure, “after weighing the

evidence,” the ALJ may seek “additional evidence or clarification” if s/he “cannot reach a

conclusion about whether” the claimant is disabled. 20 C.F.R. § 404.1520b(c)(1). However,

recontacting a medical source is appropriate “only if the evidence received from that source

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is inadequate for a disability determination,” DeBoard v. CSS, 2006 WL 3690637, *5 (6th

Cir. December 15, 2006); § 404.1512(e) and that “[a]bsent a gap in the record, the ALJ has

no duty to recontact the physician.” Starkey v. CSS, 2008 WL 828861, *4 (W.D. Mich.

March 26, 2008)(citing Johnson v. Barnhart, 138 Fed. Appx. 186, 189, 2005 WL 1414406,

*3 (11th Cir. June 17, 2005)). Dr. Dibbs’ treating records for the relevant period amply

support the finding that visual problems did not preclude all work. As such, the ALJ was not

obliged to recontact Dr. Dibbs. 

6

For overlapping reasons, Plaintiff’s contention that the ALJ misquoted Dr. Rhames’ 

findings regarding the vision problems does not provide grounds for remand. Plaintiff takes

issue with the ALJ’s statement that Dr. Rhames diagnosed Plaintiff “as legally blind in his

right eye.” Plaintiff’s Brief at 17 (citing Tr. 27, 341). While Dr. Rhames, a general

practitioner, listed “legally blind” among Plaintiff’s “active problems” at a December, 2011

examination, the “legally blind” statement is followed by “right eye prosthesis” (Tr. 341). 

Dr. Rhames’ findings do not mention left eye vision problems much less suggest that

Plaintiff experienced legal blindness in both eyes. Moreover, Dr. Dibbs’ records for the

relevant period showing 20/30 vision in the left eye do not meet the statutory definition of

blindness which requires 20/200 central visual acuity “or less of the better eye.” See

Williams v. Comm’r of Soc. Sec., 93 F. App’x 34, 36, 2004 WL 445184 (6th Cir. March 9,

Moreover, it is unclear whether the disability opinion, composed in January, 2014, 6

pertains to Plaintiff’s condition on or before the DLI of December 31, 2008. 

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2004)(citing 42 U.S.C. § 416(i)(1)(B); 20 C.F.R. § 404.1581). More obviously, Plaintiff’s

ability to drive, mow the lawn, run a hotrod camp, and care for his daughter during the

relevant period belies his claim that the treating physician found him legally blind in both

eyes. 

As such, the ALJ’s statement that Dr. Rhames found Plaintiff “legally blind” in only

the right eye does not constitute a misstatement of the record. 

 B. The Credibility Determination and SSR 96-8p 

In his second argument, Plaintiff argues that the ALJ’s credibility determination is

tainted by the ALJ’s failure to consider the limiting effects of Charles Bonnet syndrome,

bilateral neuropathy of the feet, and obesity. Plaintiff’s Brief at 19-20. In his third

argument, Plaintiff revisits his claim that the ALJ did not adequately consider the same

conditions in crafting the RFC. Plaintiff’s Brief at 20-22. He contends that as a result, the

RFC does not reflect his full degree of limitation. Id. 

The credibility determination, currently guided by SSR 96-7p, describes the process

for evaluating symptoms. As a threshold matter, the adjudicator must consider whether 7

7

In March, 2016, SSR 16-3p superceded SSR 96-7p. The newer Ruling eliminates the

use of the term “credibility” from SSA policy. SSR 16-3p, 2016 WL 1119029, *1 (Mar. 16,

2016). The Ruling states that “subjective symptom evaluation is not an examination of an

individual's character.” Instead, ALJs are directed to “more closely follow [the] regulatory

language regarding symptom evaluation.” See 20 C.F.R. § 404.1529(c)(3), fn 7, below.

Nonetheless, SSR 96-7p applies to the present determination, decided on May 11, 2015. See

Combs v. CSS, 459 F.3d 640, 642 (6th Cir. 2006)(accord 42 U.S.C. § 405(a))(The Social

Security Act “does not generally give the SSA the power to promulgate retroactive

regulations”).

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there is an underlying medically determinable physical or mental impairment ... that can be

shown by medically acceptable clinical and laboratory diagnostic techniques.” 1996 WL

374186 at *2 (July 2, 1996). In the instance that a claimant is found to be obese, the 8

Commissioner must conduct an individualized assessment of the impact of the claimant's

obesity on his or her functional abilities. SSR 02–1p, 2002 WL 34686281, *3 (June 21,

2002). SSR 02–1p “does not mandate a particular mode of analysis, but merely directs an

ALJ to consider the claimant's obesity, in combination with other impairments, at all stages

of the sequential evaluation.” Nejat v. Commissioner of CSS, 359 Fed. Appx. 574, 577 (6th

Cir. 2009). 

Plaintiff’s October, 2008 BMI of 32.7 places him in the obese range (Tr. 272). 9

However, the administrative decision does not contain reference to the condition. The ALJ’s

failure to discuss obesity at Step Two, by itself, does not constitute reversible error. See

8

In addition to an analysis of the medical evidence, 20 C.F.R. 404.1529(c)(3) lists the

factors to be considered in making a credibility determination: (i) Your daily activities; (ii)

The location, duration, frequency, and intensity of your pain or other symptoms; (iii)

Precipitating and aggravating factors; (iv) The type, dosage, effectiveness, and side effects

of any medication you take or have taken to alleviate your pain or other symptoms; (v)

treatment, other than medication, you receive or have received for relief of your pain or other

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

... and (vii) Other factors concerning your functional limitations and restrictions due to pain

or other symptoms.”

https://www.nhlbi.nih.gov/health/educational/lose_wt/BMI/bmicalc.htm. (Last 9

visited May 16, 2017). Earlier records created during the relevant period show an even

higher BMI (Tr. 345). 

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Pompa v. CSS, 73 Fed.Appx. 801, 803, 2003 WL 21949797, * 1 (6th Cir. August 11,

2003)(omission of an impairment causing work-related limitations at Step Two is of “little

consequence,” provided that ALJ considers “all impairments” in crafting the RFC). But it

is the ALJ’s failure to consider obesity in crafting the RFC that provides grounds for remand. 

“The RFC assessment must include a narrative discussion describing how the evidence

supports each conclusion, citing specific medical facts” including objective findings,

non-medical evidence, and activities of daily living. SSR 96–8p, 1996 WL 374184, *7 (July

2, 1996). The analysis must include the non-exertional limitations. 20 C.F.R. § 404.1545. 

At a minimum, the ALJ must “‘articulate how the evidence in the record supports the RFC

determination, discuss the claimant's abilityto performsustained work-related activities, and

explain the resolution of any inconsistencies in the record.’” Delgado v. CSS, 30 Fed.Appx.

542, 547–548, 2002 WL 343402, *5 (6th Cir. March 4, 2002)(citing Bencivengo v. CSS, 251

F.3d 153, slip op., 5 (Table)(3rd Cir. December 19, 2000))(punctuation added). The lack of

reference to Plaintiff’s obesity is of particular concern, given the probable effect of obesity

on the conditions of diabetes mellitus with the complications of retinopathy and neuropathy,

his degenerative disc disease and back injuries, and his shoulder problems. The ALJ’s failure

to identify the condition in either the credibility analysis or in composing the RFC requires

a remand for further analysis. 

10

10

While Plaintiff also argues that the ALJ did not consider the conditions of Charles

Bonnet syndrome and bilateral neuropathy of the feet, the ALJ provided an adequate

discussion of the relevant ophthalmological records and acknowledged Dr. Dibb’s diagnosis

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The lack of reference to obesity in the RFC discussion is coupled with other errors. 

For example, while Dr. Lazzara limited Plaintiff to walking or standing for four hours in an

eight-hour workdaywith a sit/stand option, the ALJ provided no rationale for his finding that

Plaintiff was capable of walking or standing for six hours in eight (Tr. 25, 28, 364). The

question of whether Plaintiff can walk four (with a sit/stand option) or six hours a day is

particularly critical, given that exertionally light work as found in the RFC requires walking

up to six hours a day. In performing light work, “the weight lifted may be very little,” so

long as a “good deal of walking or standing” is involved. 20 C.F.R. § 404.1567(b). None

of the medical records or Plaintiff’s description of his own activities can be interpreted to

state that he is capable of walking up to six hours in an eight-hour workday. 

Likewise, while Dr. Lazarra found that Plaintiff was limited to occasional overhead

reaching due to shoulder problems, the ALJ failed to provide an explanation for the RFC for

frequent rather than occasional overhead reaching (Tr. 25, 28, 365). While I am mindful that

the VE testified that an individual of Plaintiff’s education, age, and work experience would

be capable of a range of sedentary work with a sit/stand option (Tr. 62-63), an additional

limitation to occasional overhead reaching (as found by Dr. Lazzara) raises the question of

whether a significant number of sedentary jobs exist for an individual with some degree of

manipulative limitation. See SSR 96-9p, 1996 WL 374185,*8 (July2, 1996) “Any significant

of Charles Bonnet syndrome (Tr. 27-28). The ALJ discussed the allegations of neuropathy

(Tr. 26-27), but noted that Dr. Lazzara found only “mild difficulty” with heel and toe walking

(Tr. 28). 

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manipulative limitation of an individual's ability to handle and work with small objects with

both hands will result in a significant erosion of the unskilled sedentary occupational base.”

(Emphasis added). Although the ALJ was not required to adopt Dr. Lazzara’s consultative

opinion, none of the other medical records or testimony supports the finding that Plaintiff

could reach overhead for up to two-thirds of an eight-hour workday (Tr. 365). Moreover,

while the ALJ accorded only “partial weight” to Dr. Lazzara’s findings, it appears that the

ALJ discounted those findings only to the extent that they were a “current” assessment rather

than an evaluation of Plaintiff’s limitations during the relevant period (Tr. 28). The ALJ did

not provide any rationale for his alternative finding that Plaintiff was capable of walking six

hours a day and performing frequent overhead reaching. 

Although the ALJ concluded that Dr. Lazzara’s opinion supported an RFC for light

work, it is unclear that Dr. Lazzara’s findings of the inability to walk for more than four

hours, a sit/stand option, and a limitation in manipulative abilities allows for either light or

sedentarywork. Accordingly, a remand for further administrative proceedings is appropriate

on this basis as well. 

While a remand to the administrative level is warranted for the above-discussed

reasons, I decline to recommend a remand for an award of benefits. An award of benefits

is appropriate “only if all essential factual issues have been resolved and the record

adequately establishes a plaintiff's entitlement to benefits.” Faucher v. HHS, 17 F.3d 171,

176 (6th Cir. 1994). While the transcript shows that Plaintiff experiences multiple,

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significant conditions, a remand for benefits prior to the resolution of the unresolved factual

issues would be premature. As such, I recommend a remand for further administrative

proceedings consistent with the above discussion. 

VI. CONCLUSION

For the reasons stated above, I recommend that Plaintiff’s Motion for Summary

Judgment be GRANTED to the extent that the case is remanded to the administrative level

for further administrative proceedings, and that Defendant’s Motion for Summary Judgment

be DENIED. 

Any objections to this Report and Recommendation must be filed within 14 days of

service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D. Mich. LR

72.1(d)(2). Issue first raised in objections to a magistrate judge's report and recommendation

are deemed waived. U.S. v. Waters, 158 F.3d 933, 936 (6 Cir. 1998). Failure to file specific th

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. Secretary of HHS, 932 F.2d 505 (6 Cir. th

1991); United States v. Walters, 638 F.2d 947 (6 Cir. 1981). Filing of objections which th

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

a partymight have to this Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d

390, 401 (6 Cir. 1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 th

(6 Cir. 1987). th

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

opposing party may file a response. The response shall be not more than 20 pages in length

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

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

objections. 

s/R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Dated: May 18, 2017

CERTIFICATE OF SERVICE

I hereby certify on May 18, 2017, that I electronically filed the foregoing paper

with the Clerk of the Court sending notification of such filing to all counsel registered

electronically. I hereby certify that a copy of this paper was mailed to non-registered ECF

participants.

s/Carolyn Ciesla 

Case Manager to 

Magistrate Judge R. Steven Whalen

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