UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RONDAL COX,

Plaintiff,

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

____________________________________/

Case No. 15-12472

David M. Lawson

United States District Judge

Stephanie Dawkins Davis

United States Magistrate Judge

REPORT AND RECOMMENDATION

CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkt. 11, 14)

I. PROCEDURAL HISTORY

A. Proceedings in this Court

On July 10, 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 David M.

Lawson referred this matter to Magistrate Judge Michael Hluchaniuk for the

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

period of disability, disability insurance benefits and supplemental security

income. (Dkt. 2). This matter was reassigned to the undersigned pursuant to

Administrative Order on January 5, 2016. (See Text-only Order of Reassignment).

Both parties filed motions for summary judgment in this case. (Dkt. 11, 14). This

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matter is now ready for report and recommendation.

B. Administrative Proceedings

Plaintiff filed the instant claim for disability insurance benefits and

supplemental security income on October 26, 2013, alleging disability beginning

May 17, 2013. (Dkt. 9-2, Pg ID 44). Plaintiff’s claims were initially denied by 1

the Commissioner on January 9, 2013. ( Id.) Plaintiff requested a hearing and on

March 20, 2014, plaintiff testified before Administrative Law Judge (“ALJ”)

Gregory Holiday, who considered the case de novo. (Dkt. 9-2, Pg ID 57-96). In a

decision dated April 25, 2014, the ALJ found that plaintiff was not disabled. (Dkt.

9-2, Pg ID 44-52). Plaintiff requested a review of this decision, and the ALJ’s

decision became the final decision of the Commissioner when the Appeals

Council, on June 18, 2015, denied plaintiff’s request for review. (Dkt. 9-2, Pg ID

1-6); 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 decision of the Commissioner of

Social Security be AFFIRMED.

 Plaintiff amended his alleged onset date from October 1, 2009, to May 17, 2013, at the 1

hearing. (Dkt. 9-2, Pg ID 60).

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II. FACTUAL BACKGROUND

A. ALJ Findings

Plaintiff was born in 1963 and was 50 years old on the alleged onset date,

May 17, 2013. (Dkt. 9-2, Pg ID 49-50). Plaintiff had past relevant work as a

general laborer, delivery driver and machinist. Id. 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 the alleged on-set date to the date,

May 17, 2013. (Dkt. 9-2, Pg ID 47). At step two, the ALJ found that plaintiff had

the following severe impairments: chronic left foot pain, status post bypass

surgery for left femoral artery occlusion, complaints of chronic right knee pain due

to deformity, complaints of chronic low back pain due to degenerative

lumbrosacral disc disease, recurrent symptoms of anxiety and depression, tobacco

use disorder and alcohol abuse. 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. (Dkt. 9-2, Pg ID 47-48). 

The ALJ determined that plaintiff had the residual functional capacity

(RFC) to perform light work...

except he can only occasionally operate foot controls

with lower left extremity, cannot climb ladders, ropes or

scaffolds, can only occasionally climb ramps and stairs,

limited to only occasional stooping, crouching, kneeling

or crawling, must be permitted to use a cane or other

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assistive device for ambulation, no exposure to

hazardous machinery or unprotected heights, limited to

simple, routine tasks in a low stress work environment

defined as requiring only occasional decision making

with no more than occasional changes in work setting,

and is limited to no more than occasional interaction

with the public and co-workers.

(Dkt. 9-2, Pg ID 49). At Step Four, the ALJ found that plaintiff could not perform

his past relevant work. (Dkt. 9-2, Pg ID 50). However, the ALJ determined that,

considering plaintiff’s age, education, experience, and RFC, there were jobs that

exist in sufficient numbers that plaintiff can perform and therefore, plaintiff had

not been under a disability from the alleged onset date through the date of the

decision. (Dkt. 9-2, Pg ID 52).

B. Plaintiff’s Claims of Error

Plaintiff argues that the ALJ’s decision of non-disability is not supported by

substantial evidence because the ALJ failed to give proper deference to plaintiff’s

impaired ambulation. (Dkt. 11, Pg ID 534-535). Plaintiff specifically argues that

the ALJ’s RFC for light work would require plaintiff to walk or stand for

significant portions of the day, and that such a requirement is impossible with his

impairment. (Dkt. 11, Pg ID 534). In support of his position, plaintiff recites

details of his vascular condition from the medical record. (Id.) Plaintiff also

argues that the VE testified at hearing that the jobs he identified would be difficult

with impaired ambulation. (Id.) On this basis, plaintiff contends that the ALJ’s

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RFC assessment is not supported by substantial evidence both because it conflicts

with objective medical evidence and with the vocational expert’s opinions. (Id.) 

Next, plaintiff argues that the ALJ erred in assessing plaintiff’s credibility.

(Dkt. 11, Pg ID 535-537). Specifically, plaintiff argues that the ALJ

mischaracterizes, embellishes or omits plaintiff’s activities of daily living to

support his RFC findings. (Dkt. 11, Pg ID 535). According to plaintiff, the ALJ’s

credibility assessment is not sufficiently specific to establish his reasons for giving

plaintiff’s credibility the assigned weight and is not supported by substantial

evidence. (Dkt. 11, Pg ID 537).

Plaintiff argues that the ALJ committed reversible error by failing to order a

consultive examination of plaintiff in order to resolve uncertainty about plaintiff’s

conditions. (Dkt. 11, Pg ID 538-539). Plaintiff argues that the ALJ is required to

order such an examination if it could be reasonably expected to be of material

assistance in resolving the issue of disability. (Dkt. 11, Pg ID 538). Plaintiff

further contends he was prejudiced by the lack of consultive examination, and thus

remand is appropriate. (Dkt. 11, Pg ID 539). Similarly, plaintiff argues that the

ALJ erred by failing to consider plaintiff’s lack of medical insurance in

minimizing the severity of plaintiff’s condition. Specifically, plaintiff argues that

the ALJ found that plaintiff experienced no surgical complications and otherwise

concluded that plaintiff’s ailments were less serious and limiting based, at least in

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part, on a lack of medical records reflecting such complications. Plaintiff suggests

the lack of medical documentation of complications and other limitations arises

not from a lack of severity of the condition, but from a lack of insurance to cover

follow-up examinations and testing, which, according to plaintiff, would have

demonstrated plaintiff’s disability. (Dkt. 11, Pg ID 539-540).

Finally, plaintiff argues that the ALJ’s RFC is not supported by substantial

evidence because the hypotheticals he posed to the VE did not include a sit/stand

option. (Dkt. 11, Pg ID 540-542). Nevertheless, the VE testified that the existing

jobs within plaintiff’s abilities all provided a sit/stand option. (Dkt. 11, Pg ID

540). Plaintiff argues that the sit/stand option conflicts with the ALJ’s RFC

providing that plaintiff was capable of light work, and that creating such a conflict

was not harmless error because the VE did not identify or explain any deviation

from the DOT, which does not account for sit/stand options. (Dkt. 11, Pg ID 541).

C. The Commissioner’s Motion for Summary Judgment

The Commissioner contends that, contrary to plaintiff’s argument, the ALJ’s

decision is supported by substantial evidence because the ALJ gave proper

deference to plaintiff’s ambulatory limitations by including the use of an assistive

ambulatory device within the RFC. (Dkt. 14, Pg ID 563-567). Addressing

plaintiff’s recitation of details of his vascular condition, the Commissioner notes

that the ALJ was concerned with what plaintiff could or could not do, not

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what he did or did not suffer from, Howard v. Comm’r of Soc. Sec., 276 F.3d 235,

239 (6th Cir. 2002). (Dkt. 14, Pg ID 564). The Commissioner contends that

plaintiff suggests that the mere existence of these impairments is enough, but the

Sixth Circuit has found otherwise. Germany-Johnson v. Comm’r of Soc. Sec., 313

Fed. Appx. 771, 779 (6th Cir. 2008) (citing Higgs v. Bowen, 880 F.2d 860, 863

(6th Cir. 1988)) (“[T]he mere diagnosis of [an impairment], of course, says

nothing about the severity of the condition.”). (Id.) Moreover, the studies

referenced by plaintiff led to emergency femoral artery bypass surgery on the left

side the following day, and do not shed light on his ambulatory ability after the

surgical intervention. (Id.)

The Commissioner further argues that plaintiff’s ambulatory difficulties are

adequately addressed by RFC because the ALJ reasonably relied on the objective

examination findings showing normal functioning of the lower extremities and

normal gait and station, as well as his activities of daily living, to find that plaintiff

could perform light work with additional accommodations including use of a cane.

(Dkt. 14, Pg ID 565-566). The Commissioner contends that the ALJ’s decision

should be affirmed because plaintiff has not identified any evidence demonstrating

a functional limitation in ambulation that was not included the RFC finding or

presented in the hypothetical to the vocational expert. (Dkt. 14, Pg ID 567).

As to plaintiff’s arguments regarding the assessment of his credibility, the

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Commissioner notes that the ALJ is in the best position to observe demeanor and

to make an appropriate evaluation as to credibility and, thus, an ALJ’s credibility

assessment will not be disturbed “absent compelling reason.” Smith v. Halter, 307

F.3d 377, 379 (6th Cir. 2001). (Id.) Indeed, according to the Commissioner, “an

administrative law judge’s credibility findings are virtually ‘unchallengeable.’”

Ritchie v. Comm’r of Soc. Sec., 540 Fed. Appx. 508, 511 (6th Cir. 2013) (citation

omitted). The Commissioner notes that the ALJ gave supported reasons for

discounting plaintiff’s credibility, and his finding should not be disturbed. The

ALJ explained that Plaintiff’s allegations of disabling symptoms were not

consistent with the absence of complications following his bypass surgery. (Dkt.

14, Pg ID 568). The Commissioner argues that the ALJ further supportably

explained that Plaintiff’s activities of living, including his ability to walk short

distances, prepare simple meals, do light household chores, shop, and go out

alone, were inconsistent with his allegations of debilitating impairments. See 20

C.F.R. §§404.1529(c)(3) and 416.929(c)(3); Social Security Ruling 96-7p, 1996

WL 374186, at *5 (ALJ may reasonably consider statements about a plaintiff’s

“daily activities” as part of the credibility assessment).

The Commissioner contends that the ALJ did not err by failing to order a

consultative examination of plaintiff. The Commissioner notes that “an ALJ has

the discretion to determine whether further evidence, such as additional testing or

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expert testimony, is necessary.” Foster v. Halter, 279 F.3d 348, 355 (6th Cir.

2001). According to the Commissioner, the duty to obtain additional evidence is

triggered only when it is necessary to resolve an ambiguity in the record, or when

there is insufficient evidence to determine the merits of the disability claim. Id. at

355-56; 20 C.F.R. §§ 404.1519a(b), 416.919a(b). Additionally, the Commissioner

argues that counsel’s failure to make a request for a consultative examination

resulted in the waiver of this claim. Cyrus v. Astrue, 2012 WL 2601495, at *8

(S.D. Ohio July 5, 2012), report and recommendation adopted, 2012 WL 3113224

(S.D. Ohio July 31, 2012) (“in this case Plaintiff made no formal request to expand

the record through a consultative examination at any point during the

administrative proceedings, including at the evidentiary hearing when he was

represented by counsel...Plaintiff appears to have waived this issue for purposes of

this appeal...”). (Dkt. 14, Pg ID 570). Reciting entries from the medical record,

the Commissioner concludes that substantial evidence supports the ALJ’s RFC

finding, and plaintiff has not identified any unresolved issue regarding his

functional abilities that required further development. (Dkt. 14, Pg ID 573).

Similarly, the Commissioner argues that plaintiff’s contentions regarding

his finances are unavailing. (Id.) The ALJ’s RFC finding is not predicated on a

lack of medical evidence that could be attributable to a lack of finances and, even

if it was, plaintiff would need to demonstrate how further medical evidence would

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have tipped the scales in his favor. Gooch v. Sec’y of Health & Human Servs., 833

F.2d 589, 592 (6th Cir. 1987). (Dkt. 14, Pg ID 573). According to the

Commissioner, the ALJ found that the medical record affirmatively showed that

plaintiff “appeared to make a reasonably good recovery,” a finding supported by

the objective examination findings and observations of plaintiff’s treatment

providers, as well as Plaintiff’s daily activities. (Id.) The Commissioner contends

that plaintiff has not shown that additional testing was required to evaluate his

claim, or that his ability to afford treatment was otherwise material to the ALJ’s

decision. (Id.) Furthermore, argues the Commissioner, his claim regarding his

finances is not well-developed, because, even if plaintiff had identified a finding

by the ALJ predicated on an absence of treatment records, plaintiff has not made

any showing that he explored all of his options to afford additional treatment. Cf.

SSR 82-59, 1982 WL 31384, at *4 (where a claimant asserts that he would follow

prescribed treatment but cannot afford it, “[a]ll possible resources” must be 

explored and the claimant must document contacts with such resources as well as

his financial circumstances); see also Connolly v. U.S. Soc. Sec. Admin., Comm’r,

2010 WL 148137, at *4 (D. N.H. Jan. 14, 2010) (“Plaintiff has not made the

requisite showing that he tried to pursue therapy or to acquire prescription

medication despite his financial limitations but to no avail, and his bald assertion

now does not carry his burden of proof.”). (Dkt. 14, Pg ID 574). The

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Commissioner points out that the record contains evidence to the contrary, as

plaintiff’s medical records are replete with evidence that he is able to afford

cigarettes and alcohol. See Strong v. Soc. Sec. Admin., 88 Fed. Appx. 841, 846

(6th Cir. 2004) (ALJ’s.consideration of the claimant’s smoking habit was relevant

“in light of Claimant’s assertion that he did not have the money for medical

examination or treatment during the relevant period”). (Id.) 

Finally, the Commissioner notes that plaintiff’s position regarding the VE’s

application of the sit/stand option is unclear, but plaintiff seems to argue that he

required a sit/stand option but faults the ALJ for not including that limitation in

the RFC finding. (Dkt. 14, Pg ID 575). The Commissioner maintains that the

failure to include limitations in the RFC is harmless when the hypothetical

contains those limitations. Jennings v. Comm’r of Soc. Sec., 2011 WL 7025815, at

*8-9 (E.D. Mich. Oct. 31, 2011), report and recommendation adopted, 2012 WL

113491 (E.D. Mich. Jan. 13, 2012). (Dkt. 14, Pg ID 575). As noted by the

Commissioner, in this case, the ALJ not only questioned the vocational expert

about whether there were jobs that an individual with the assessed RFC could

perform, on questioning from plaintiff’s counsel, the VE further testified that the

jobs he had identified could also be performed by an individual who required a

sit/stand option. (Id.) The VE testified that his testimony was consistent with the

DOT. (Id.) He added that the only exception was his testimony about the sit/stand

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option, because that limitation is not addressed in the DOT, but confirmed that his

opinion was based on his “experience placing people in the local labor market.”

(Id.) Thus, according to the Commissioner, any error in the RFC not containing a

sit/stand option was harmless. See Jennings, 2011 WL 7025815, at *8-9. (Id.)

D. Plaintiff’s Reply Brief

In his reply brief, plaintiff asserts that defendant is “wrong when he states

that the ALJ did account for the plaintiff’s use of a cane in the RFC assessment.”

(Dkt. 15, Pg ID 578). Plaintiff argues that the diagnoses he cites to are objective

medical evidence to support the treating doctor’s opinion that plaintiff has an

antalgic gait and should use a cane. (Id.). Plaintiff cites to the medical record to

support his claim that he has an abnormal gait and a diminished capacity to

ambulate effectively, and suggests that defendant belittles this argument by noting

that plaintiff’s doctor “never mentions the use of a cane.” (Dkt. 15, Pg ID 579-

580). Plaintiff counters this by emphasizing that the words “cane” and “antalgic”

are handwritten by plaintiff’s doctor in October 2013. (Dkt. 15, Pg ID 580).

Plaintiff further counters the Commissioner’s support for the ALJ’s

credibility determination by arguing that the ALJ's analysis of Plaintiffs credibility

is not supported by substantial evidence in the record. (Id.) Plaintiff contends that

not only is the ALJ’s analysis cherry picked, but it altogether ignores significant

diagnoses and findings. (Id.) Plaintiff maintains that the ALJ inaccurately

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summarized the evidence and did not articulate his reasoning enough to satisfy the

requirements of the regulations, case law, and SSR 96-7p. (Dkt. 15, Pg ID 580-

581). Instead of performing a proper analysis of the medical evidence under

agency regulations and controlling case law, plaintiff contends that the ALJ

cherry-picked select portions of the medical record or wrongly claimed Plaintiff

alleged certain severe impairments, to discredit him. (Dkt. 15, Pg ID 581).

Plaintiff asserts that he did not waive the issue of requiring a consultative

examination because counsel pointed out in his pre-hearing brief that no

consultative examination had been done and stated at the hearing that an x-ray was

not done. (Id.). Moreover, he argues that because the ALJ “obviously was

struggling with plaintiff[’s]....impaired ambulation,” and knew plaintiff had no

medical insurance, he was obligated to order a consultative examination. (Id.)

Finally, plaintiff again advances the argument that the VE testified that the

jobs plaintiff could perform had a sit/stand option despite the fact that the ALJ did

not pose that limitation to the VE in any hypothetical, and that this inconsistency

creates a conflict between the VE’s testimony and the DOT. (Dkt. 15, Pg ID 582). 

Consequently, plaintiff concludes that the VE’s testimony fails to provide

substantial evidence that plaintiff can perform other work. (Id.)

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III. DISCUSSION

A. Standard of Review

In enacting the social security system, Congress created a two-tiered system

in which the administrative agency handles claims, and the judiciary merely

reviews the agency determination for exceeding statutory authority or for being

arbitrary and capricious. Sullivan v. Zebley, 493 U.S. 521 (1990). The

administrative process itself is multifaceted in that a state agency makes an initial

determination that can be appealed first to the agency itself, then to an ALJ, and

finally to the Appeals Council. Bowen v. Yuckert, 482 U.S. 137 (1987). If relief is

not found during this administrative review process, the claimant may file an

action in federal district court. Mullen v. Bowen, 800 F.2d 535, 537 (6th Cir.

1986).

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

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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); Jones v. Comm’r of Soc.

Sec., 336 F.3d 469, 475 (6th Cir. 2003) (an “ALJ is not required to accept a

claimant’s subjective complaints and may ... consider the credibility of a claimant

when making a determination of disability.”); Cruse v. Comm’r of Soc. Sec., 502

F.3d 532, 542 (6th Cir. 2007) (the “ALJ’s credibility determinations about the

claimant are to be given great weight, particularly since the ALJ is charged with

observing the claimant’s demeanor and credibility.”) (quotation marks omitted);

Walters, 127 F.3d at 531 (“Discounting credibility to a certain degree is

appropriate where an ALJ finds contradictions among medical reports, claimant’s

testimony, and other evidence.”). “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

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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.

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

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(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.). 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.

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C. Analysis

1. Impaired Ambulation

Plaintiff argues that the ALJ’s decision is not supported by substantial

evidence because the ALJ did not properly consider plaintiff’s impaired

ambulation. The Commissioner refutes this argument by pointing out that the ALJ

indeed gave deference to the plaintiff’s ambulatory difficulties by including the

use of an assistive ambulatory device within the RFC. Plaintiff argues that the

Commissioner is wrong in stating that the ALJ accounted for plaintiff’s use of a

cane in his RFC assessment.

The ALJ clearly accounts for plaintiff’s ambulatory difficulties within the

RFC by indicating that plaintiff “must be permitted to use a cane or other assistive

device for ambulation.” (Dkt. 9-2, Pg ID 49). Accordingly, the undersigned finds

that plaintiff’s argument that the ALJ did not properly consider or address

plaintiff’s ambulatory difficulties is without merit. Plaintiff's motion should be

denied in this regard.

Plaintiff’s related argument, that the VE testimony regarding jobs plaintiff

could continue to perform was not supported by substantial evidence, is equally

without merit. Plaintiff argues that the VE testified that the jobs he identified

would be problematic to perform if plaintiff had impaired ambulation. (Dkt. 11,

Pg ID 534, citing Dkt. 9-2, Pg ID 91-92). This argument actually cites to the VE’s

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response to plaintiff’s counsel’s questions regarding the impact of taking more or

longer breaks during the course of the workday, not impaired ambulation. (Dkt. 9-

2, Pg ID 91-92). To the contrary, when the ALJ presented the VE with a

hypothetical specifically limiting the person to “jobs that can be performed while

using a handheld assisted device, such as a cane, principally for ambulation” (Dkt.

9-2, Pg ID 87-88), the VE testified that this limitation eliminated the cleaner

position upon which he earlier testified, but plaintiff could still perform the hand

packager position at a reduced level, with 2,500 positions in the regional labor

market and greater than 100,000 positions in the national market. He could also

still perform the small products assembler position, with 2,500 positions

regionally and 100,000 positions nationally, and a visual inspector position with

1,000 regional openings and greater than 80,000 national openings. (Dkt. 9-2, Pg

ID 88). 

Additionally, plaintiff argues that the VE erroneously testified that his

testimony was consistent with the Dictionary of Occupational Titles (“DOT”).

Plaintiff asserts that the DOT does not account for the sit/stand option imposed by

the VE, and thus a conflict exists between the VE’s testimony and the DOT. 

According to plaintiff, only after determining whether the VE has deviated from

the DOT, and whether any deviation is reasonable, can an ALJ properly rely on the

VE's testimony as substantial evidence to support a disability determination.

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Massachi v. Astrue, 486 F .3d 1149 (9th Cir. 2007). 

When the testimony of a vocational expert differs from the DOT, the ALJ

may rely on the experience of the VE. Conn v. Sec’y of Health and Human

Servcs., 51 F.3d 607, 610 (6th Cir. 1995). Here, contrary to plaintiff’s assertion

that the VE erroneously testified that his findings were consistent with the DOT,

the VE later corrected himself, testifying that “the sit/stand option is not an issue

addressed by the DOT and my opinion in this regard is based upon my experience

placing people in the local labor market.” (Dkt. 9-2, Pg ID 93). Accordingly, the

ALJ was well within his authority to rely on the VE’s testimony in reaching his

decision that jobs existed that plaintiff could perform and the decision should not

be disturbed.2

2. Credibility Determination

“[A]n ALJ’s findings based on the credibility of the applicant are to be

accorded great weight and deference, particularly since an ALJ is charged with the

duty of observing a witness’s demeanor and credibility.” Walters v. Comm’r, 127

F.3d 525, 531 (6th Cir. 1997). But credibility assessments are not insulated from

 Although the ALJ cites the VE’s erroneous testimony regarding consistency with the 2

DOT (Dkt. 9-2, Pg ID 51), it is clear from the exchange between the VE and the ALJ when the

VE corrects his earlier testimony that the ALJ understood that the VE’s testimony regarding the

hypothetical containing the assistive ambulatory device differed from the DOT. (Dkt. 9-2, Pg ID

93). Further, the ALJ’s decision clearly relies upon the VE’s testimony, as opposed to the DOT,

in that the ALJ adopted the limitation within the hypothetical which created the conflict between

the VE’s testimony and the DOT.

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judicial review. Despite the deference that is due, such a determination must

nevertheless be supported by substantial evidence. Id. An ALJ’s credibility

determination must contain “specific reasons . . . supported by the evidence in the

case record, and must be sufficiently specific to make clear to the individual and to

any subsequent reviewers the weight the adjudicator gave to the individual's

statements and the reasons for that weight.” SSR 96-7p. “It is not sufficient to

make a conclusory statement that ‘the individual's allegations have been

considered’ or that ‘the allegations are (or are not) credible.’” Id. “[T]he

adjudicator may find all, only some, or none of an individual’s allegations to be

credible” and may also find the statements credible to a certain degree. Id.

Further, to the extent that the ALJ finds that plaintiff’s statements are not

substantiated by the objective medical evidence in the record, the regulations

explicitly provide that “we will not reject your statements about the intensity and

persistence of your pain or other symptoms or about the effect your symptoms

have on your ability to work solely because the available objective medical

evidence does not substantiate your statements.” 20 C.F.R. §§ 404.1529(c)(2),

416.929(c)(2). The ALJ must consider: (1) the claimant’s daily activities, (2) the

location, duration, frequency, and intensity of the claimant's pain or other

symptoms, (3) precipitating and aggravating factors; (4) the type, dosage,

effectiveness, and side effects of any medication taken to alleviate pain or other

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symptoms, (5) treatment, other than medication, for symptom relief, (6) any

measures used to relieve the symptoms, and (7) functional limitations and

restrictions due to the pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3),

416.929(c)(3); see also Felisky v. Bowen, 35 F.3d 1027, 1039-40 (6th Cir. 1994)

(applying these factors).

Here, the ALJ considered and discussed plaintiff’s hearing testimony and

other subjective complaints in conjunction with the record evidence, and he found

that plaintiff’s allegations were not entirely credible. (Dkt. 9-2, Pg ID 50). In

reaching this determination, the ALJ reasoned that the objective medical evidence

did not support plaintiff’s allegations. (Id.) Additionally, the ALJ pointed out

plaintiff’s stated abilities to walk short distances, prepare simple meals, do light

household chores, shop and go out alone. (Id.) The ALJ notes that plaintiff lives

alone in an upper flat, indicating that plaintiff can routinely climb stairs. (Id.) As

discussed above, the ALJ provided specific reasons for discounting plaintiff’s

credibility in his decision, many of which apply the factors set forth in 20 C.F.R.

§ 404.1529(c)(3). Thus, the ALJ’s decision is sufficiently specific to make clear

to plaintiff and to the Court the weight that he gave to plaintiff’s statements and

the reasons for that weight. The ALJ’s assessment of plaintiff’s credibility is

supported by substantial evidence and should not be disturbed; plaintiff’s motion

should be denied in this regard.

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3. Consultative Examination

Plaintiff argues that the ALJ committed reversible error by failing to order 

consultive examination. Plaintiff contends a consultive examination was

necessary to resolve uncertainty about plaintiff’s impaired ambulation and to

compensate for gaps in the medical record resulting from plaintiff’s lack of

medical insurance coverage. The undersigned is not persuaded that either of these

proffered reasons required the ALJ to request a consultative examination before

issuing his decision. 

First, as noted by the Commissioner, plaintiff waived this issue by failing to

specifically request an expansion of the record through a consultative examination

at any point during the administrative proceedings, including the hearing. See

Cyrus v. Astrue, 2012 WL 2601495, at *8 (S.D.Ohio, July 5, 2012), report and

recommendation adopted, 2012 WL 3113224 (S.D.Ohio, July 31, 2012). 

Moreover, even if plaintiff had not waived this issue, as discussed supra, the

asserted ambiguity regarding plaintiff’s impaired ambulation is nonexistent given

that the ALJ found that plaintiff indeed experienced difficulties with ambulation,

and incorporated the use of an assistive ambulatory device, such as a cane, as part

of plaintiff’s RFC. Hence, any ambiguity was resolved in plaintiff’s favor.

Furthermore, plaintiff has not demonstrated or even suggested how further

medical evidence would have altered the ALJ’s decision. See Gooch v. Sec’y of

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Health & Human Servs.,833 F.2d 589, 592 (6th Cir. 1987) (a more detailed

medical record does not compel the conclusion that plaintiff is disabled). The ALJ

found the record sufficient to determine that plaintiff made a reasonably good

recovery without any surgical or postoperative complications from his fermoral

arterial bypass. (Dkt. 9-2, Pg ID 50). Consequently, his alleged inability to afford

additional medical treatment is inapposite. Moreover, even if it were pertinent,

plaintiff has not made the requisite showing that he tried to pursue medical

treatment but was thwarted by the excessive cost. See SSR 82-59, 1982 WL

31384, at *4; Connolly v. Comm’r of Soc. Sec., 2010 WL 148137, at *4 (D.N.H.,

Jan. 14, 2010). 

For all of the above reasons, the undersigned finds that the ALJ was well

within his discretion, and thus did not commit reversible error, in not ordering a

consultative examination of plaintiff prior to issuing his decision of non-disability. 

IV. RECOMMENDATION

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

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,

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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). 

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

rule without awaiting the response

Date: August 19, 2016 s/Stephanie Dawkins Davis

Stephanie Dawkins Davis

United States Magistrate Judge

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CERTIFICATE OF SERVICE

I certify that on August 19, 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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