IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

MARY L. SHERMAN, 

 Plaintiff, 

 Civil Action 2:12-cv-738 

 v. Judge James L. Graham 

 Magistrate Judge Elizabeth P. Deavers 

COMMISSIONER OF SOCIAL SECURITY, 

 

 Defendant. 

REPORT AND RECOMMENDATION 

 Plaintiff brings this action under 42 U.S.C. § 405(g) for review of a final decision of the 

Commissioner of Social Security (“Commissioner”) denying her application for social security 

disability benefits. This matter is before the United States Magistrate Judge for a Report and 

Recommendation on Plaintiff’s Statement of Errors, the Commissioner’s Memorandum in 

Opposition, Plaintiff’s Reply, and the administrative record. (ECF Nos. 10, 13, 14, 9.) For the 

reasons that follow, it is RECOMMENDED that the Commissioner’s nondisability finding be 

REVERSED and that this action be REMANDED to the Commissioner and the ALJ under 

Sentence Four of § 405(g). 

I. BACKGROUND

 Plaintiff filed her application for benefits on April 22, 2008, alleging that she has been 

disabled since July 13, 2007, at age 50. (R. at 94-98.) Plaintiff alleges disability as a result of 

bipolar disorder, depression and anxiety, insomnia, hypothyroid, osteopenia, carpel tunnel of 

the left wrist, allergies, attention deficit disorder, severe headaches and acid reflux. (R. at 123.) 

Plaintiff’s application was denied initially and upon reconsideration. Plaintiff sought a de novo

hearing before an administrative law judge (“ALJ”). 

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 ALJ Timothy G. Keller held a hearing on September 21, 2010, at which Plaintiff, 

represented by counsel, appeared and testified. (R. at 28-36.) Barry J. Brown, a vocational 

expert, also appeared and testified at the hearing. (R. at 36-40.) On December 2, 2010, the ALJ 

issued a decision finding that Plaintiff is not disabled within the meaning of the Social Security 

Act. (R. at 11-20.) On June 25, 2012, the Appeals Council denied Plaintiff’s request for review 

and adopted the ALJ’s decision as the Commissioner’s final decision. (R. at 1-4.) Plaintiff then 

timely commenced the instant action. 

II. HEARING TESTIMONY 

A. Plaintiff’s Testimony 

 At the administrative hearing, Plaintiff testified that she has a certificate in paralegal 

studies, although it is currently expired, as well as a diploma for administrative medical assisting. 

(R. at 29.) Plaintiff indicated that she has not worked since December 8, 2006. (R. at 31.) She 

testified that before that date she worked as a paralegal. According to Plaintiff, she was fired 

from her last four jobs only a short period of time because she “told them off.” Id. She held a 

job as a paralegal for approximately two years at another location before she was fired for 

making mistakes. (R. at 32.) 

 Plaintiff testified that she receives treatment for bipolar disorder, anxiety, and social 

phobia. Id. She indicated that she suffers from crying spells and mood swings. She stated that 

during manic episodes she overspends and has more energy. In a “down state,” however, she 

stated that she gets depressed and irritable and does not feel like doing anything. Plaintiff 

testified that she suffers from depression more than manic symptoms. (R. at 33.) She also 

indicated that she suffers from poor memory and has difficulty focusing on one thing at a time. 

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She testified that she rarely leaves her house alone because she dislikes crowds and people. She 

indicated that she experiences anxiety attacks when she is near crowds. Plaintiff also stated that 

her medications cause her to feel tired. (R. at 35.) 

 Plaintiff further testified that she suffers from various physical symptoms. She stated that 

she suffers from back pain. She also indicated that she has pain in her right arm, which prevents 

her from lifting heavy objects. (R. at 34.) She stated that she cannot lean over the bath tub for 

any length of time when she bathes her dog. 

 According to her testimony, Plaintiff performs light housekeeping. (R. at 35.) She stated 

that she does her laundry. If her house needs any “heavy vacuuming” or if she needs any “major 

moving done,” she has a friend who comes over to help her. (R. at 35.) She had a significant 

other who lived with her up until a month before the hearing. Plaintiff testified that her 

significant other did the chores and yard work when he lived there. 

 Plaintiff testified that she usually stays home by herself. (R. at 35.) She stated that her 

daughter calls her once or twice per week. She indicated that she has friends who live around 

her condo, but that she visits with them only briefly. 

B. Vocational Expert Testimony

Barry Brown testified as the vocational expert (“VE”) at the administrative hearing. (R. 

at 36-40.) The ALJ asked the VE to assume that a hypothetical individual suffered no physical 

limitations, and that she was able to understand, remember, and carryout simple tasks and 

instructions. In addition, the ALJ asked the VE to assume this person was able to maintain 

concentration and attention for two-hour segments over an eight-hour work period; respond 

appropriately to supervisors and coworkers in a task-oriented setting where contact with others is 

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casual and infrequent; and adapt to simple changes and avoid hazards in a setting without strict 

production quotas. Based the ALJ’s hypothetical, the VE testified that such a person would be 

unable to perform Plaintiff’s past work. The VE further testified that such a person would be 

able to perform other jobs that exist in the regional or national economy. (R. at 37.) The VE 

testified that such jobs exist at all exertional levels, and offered several examples of positions in 

the medium, unskilled range, including machine tender positions, “cleaner type jobs,” and 

“office helper positions.” Id. 

 On cross examination by Plaintiff’s counsel, the VE testified that if the same hypothetical 

person was required to miss three days of work or more, she would not be able to sustain 

competitive work activity. (R. at 38.) The VE further testified that no work would be available 

to the individual if she had no useful ability to understand even short simple instructions or 

maintain attention for two-hour segments, or if she was unable to work in coordination with 

others without being unduly distracted. (R. at 39.) He also testified that such an individual 

would be precluded from work if for two-thirds, one-half, or one-quarter of the workday she was 

unable to sufficiently maintain concentration, persistence and pace, and unable to complete tasks 

in a timely manner. (R. at 40.) 

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III. MEDICAL RECORDS1

A. Dale Michalak, M.D. 

Plaintiff treated with Dr. Michalak, for primary care from December 2006 through at 

least March 2010. (R. at 203-74, 362-422, 501-12.) Unfortunately, Dr. Michalak’s treatment 

notes are hand-written and difficult to decipher due to poor penmanship. 

On April 8, 2008, Dr. Michalak completed an evaluation form relating to Plaintiff’s 

mental and physical limitations. (R. at 250-55.) He diagnosed Plaintiff with bipolar disorder, 

depression, anxiety, insomnia, and hypothyroid disease. Dr. Michalak assigned her a Global 

Assessment of Functioning (“GAF”) score of 45.2

 (R. at 250.) He indicated on the form that 

Plaintiff has “no impairment” in her abilities to climb, bend, reach above her shoulders or 

operate heavy machinery. (R. at 257.) In a section entitled “limitations (activities patient cannot 

do),” Dr. Michalak wrote “Do physical labor (chronic back pain)”; “work under stress”; and 

“work at a fast pace.” Id. 

Plaintiff continued to treat with Dr. Michalak through 2010, but his treatment notes for 

that period are illegible. On May 13, 2010, Dr. Michalak authored a letter to Plaintiff’s counsel 

regarding Plaintiff’s medical condition. (R. at 587.) Dr. Michalak indicated that Plaintiff has 

diagnoses of a thyroid condition, neck pain, decreased density of the bones, back pain, 

depression with anxiety, and attention deficit disorder (“ADD”). Id. He noted that he last saw 

 

1

 For the sake of judicial economy, this section includes only those medical records related to the 

Undersigned’s conclusion that this matter must be reversed and remanded to the Commissioner. 

2

The GAF scale is used to report a clinician’s judgment of an individual’s overall level of 

functioning. Clinicians select a specific GAF score within the ten-point range by evaluating 

whether the individual is functioning at the higher or lower end of the range. See Am. 

Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders, 4th ed., Text Revision 

at pp. 32-34 (“DSM-IV-TR”). A GAF score of 45 is indicative of “serious symptoms . . . or 

serious impairment in occupational, social, or school functioning.” DSM-IV-TR at 34. 

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Plaintiff on March 15, 2010 for an injury to her right arm as a result of lifting an object. He 

stated that Plaintiff suffers limitations in her ability to lift, bend, walk, push and pull due to pain 

in her neck, back and arm pain. He further opined that Plaintiff suffers marked impairment as a 

result of her ADD and depression, “which manifests itself in decreased concentration, increased 

frustration, inability to control emotions, and interaction with others.” Id. Dr. Michalak further 

noted that Plaintiff experiences increased difficulty during times of stress or perceived stress. Id. 

 Dr. Michalak also completed a physical capacity evaluation form on May 13, 2010. (R. 

at 591-92.) He opined that Plaintiff can stand up to thirty minutes at a time for a total of three 

hours in the work day; walk fifteen minutes at a time for a total of two hours in the work day; 

and that she can sit for a total of eight hours in a work day. He opined that she can lift up to ten 

pounds occasionally; and that she is unable to push or pull. (R. at 591.) He indicated that 

Plaintiff can bend and climb steps occasionally, but that she cannot squat, crawl or climb ladders. 

(R. at 592.) Lastly, Dr. Michalak opined that Plaintiff’s condition would deteriorate if she were 

under stress associated with a job because stress increases her physical and emotional symptoms. 

Id.

B. Peggy Cook, Ph.D. 

Plaintiff began treating with Dr. Cook on December 14, 2006 and continued treatment 

until at least March 28, 2009. (R. at 294-325, 595-98.)

On April 8, 2008, Dr. Cook completed a medical source statement as to Plaintiff’s mental 

limitations. (R. at 275-80.) Dr. Cook noted that Plaintiff suffers from various mental 

impairments. She further noted that Plaintiff’s mental-health condition exacerbates her pain and 

other physical symptoms. Specifically, she noted that “high stress environments lead to muscle 

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tension and spinal complaints.” (R. at 277.) She opined that Plaintiff’s impairments would 

cause her to miss work approximately one day per month. Dr. Cook also opined that Plaintiff 

cannot be exposed to repetitive bending or lifting due to her back condition. (R. at 280.) 

C. Herbert Grodner, M.D.

On June 29, 2008, Dr. Grodner examined Plaintiff on behalf of the state agency. (R. at 

478-84.) He noted that Plaintiff “has problems with her neck and her hips.” (R. at 478.) She 

also presented with complaints of low back pain. He noted that Plaintiff also has decreased 

density in her bones. On examination, Dr. Grodner noted that Plaintiff appeared in no acute 

distress. (R. at 479.) He also noted Plaintiff’s gait as normal, and that she can squat and walk 

heel-to-toe. (R. at 480.) Dr. Grodner also noted normal range of motion in all of Plaintiff’s 

joints. He concluded that Plaintiff can perform “most types of physical activities,” but that 

“weight bearing and heavy lifting would be difficult[] because of the [decreased density of her 

bones.]” Id. In addition, Dr. Grodner noted that Plaintiff “could perform sedentary activity,” but 

that “there is also a history of depression and that diagnosis needs to be evaluated by the 

appropriate specialist to assess it[s] impact for her to perform daily activities.” Id. 

IV. THE ADMINISTRATIVE DECISION

 On December 2, 2010, the ALJ issued his decision. (R. at 11-20.) At step one of the 

sequential evaluation process,5

 the ALJ found that Plaintiff had not engaged in substantially 

 

5

 Social Security Regulations require ALJs to resolve a disability claim through a five-step sequential 

evaluation of the evidence. See 20 C.F.R. §416.920(a)(4). Although a dispositive finding at any step 

terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), if fully 

considered, the sequential review considers and answers five questions: 

 1. Is the claimant engaged in substantial gainful activity? 

 2. Does the claimant suffer from one or more severe impairments? 

 3. Do the claimant’s severe impairments, alone or in combination, meet or 

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gainful activity since her alleged onset date of July 13, 2007. (R. at 13.) The ALJ found that 

Plaintiff suffers from the severe impairments of bipolar disorder and anxiety disorder. Id. The 

ALJ concluded that none of Plaintiff’s physical impairments is severe. (R. at 14.) He found that 

Plaintiff suffers severe mental impairments of bipolar disorder and anxiety disorder. (R. at 13.) 

He further found that Plaintiff does not have an impairment or combination of impairments that 

meets or medically equals one of the listed impairments described in 20 C.F.R. Part 404, Subpart 

P, Appendix 1. Id. At step four of the sequential process, the ALJ evaluated Plaintiff’s RFC as 

follows: 

After careful consideration of the entire record, I find that the claimant has the 

residual functional capacity to perform a full range of work at all exertional levels 

but with the following nonexertional limitations: simple tasks and instructions 

with the ability to maintain concentration and attention for two hours at a time and 

no strict production quotas. The claimant can adapt to simple changes and can 

respond appropriately to supervisors and co-workers. 

(R. at 16.) In reaching this determination, the ALJ accepted Dr. Michalak’s April 2008 opinion, 

but gave “little” weight to his May 2010 opinion, stating “[t]here has been no change in 

[Plaintiff’s] condition from April 2008 until May 2010 to warrant the severe limitations offered 

by Dr. Michalak.” (R. at 17.) The ALJ also rejected Dr. Cook’s April 2008 opinion concerning 

Plaintiff’s physical limitations, finding that she is a psychologist and “thus not qualified to offer 

an opinion regarding the claimant’s physical impairments.” Id. The ALJ also rejected Dr. 

 

equal the criteria of an impairment set forth in the Commissioner’s Listing of 

Impairments, 20 C.F.R. Subpart P, Appendix 1? 

 4. Considering the claimant's residual functional capacity, can the claimant 

 perform his or her past relevant work? 

 5. Considering the claimant's age, education, past work experience, and residual functional 

capacity, can the claimant perform other work available in the national economy? 

See 20 C.F.R. §416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009); 

Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001). 

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Grodner’s June 2008 opinion concerning Plaintiff’s physical limitations. In doing so, he stated 

that the opinion “is inconsistent with itself,” because Dr. Grodner opines that Plaintiff can 

perform most types of physical activities, but only limited to sedentary work. Id. In addition, 

the ALJ found that Dr. Grodner’s opinion is unsupported by the evidence because the record, 

including Dr. Grodner’s examination, fails to indicate that Plaintiff suffers from significant 

abnormalities. Id. 

The ALJ next considered Plaintiff’s mental limitations. He rejected Dr. Michalak’s April 

2008 opinion that Plaintiff had poor to no ability to perform most work-related activities and his 

May 2010 opinion in which he opined that Plaintiff suffers moderate to marked limitations in 

most work-related categories. In doing so, the ALJ stated that he “cannot accept these opinions 

[because] Dr. Michalak is not a mental health practitioner.” (R. at 18.) The ALJ also indicated 

that “the evidence does not support these limitations, i.e. [Plaintiff’s] ability to perform routine, 

daily activities, etc.” Id. The ALJ found the October 18, 2008 opinion of Dr. Cook to be 

consistent with the RFC he imposed. Id. Finally, the ALJ indicated that he “cannot give much 

weight” to the May 2010 opinion of Dr. Stark, wherein Dr. Stark opined that Plaintiff would 

have difficulty dealing with the stress of working a full-time job. Id. In that opinion, as the ALJ 

recognized, Dr. Stark also opined that Plaintiff suffers mild to moderate limitations in most work 

areas. The ALJ rejected Dr. Stark’s first statement as “too nebulous to determine exactly what 

the claimant can tolerate or not tolerate.” Id. He rejected her latter opinion, stating that “[a]s for 

the check marks, it is difficult to determine just how these terms, i.e. mildly, moderately, would 

relate to the claimant’s ability to work.” Id. 

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 Relying on the VE’s testimony, the ALJ determined that jobs exist in significant numbers 

in the state and national economy that Plaintiff can perform. (R. at 19-20.) He therefore 

concluded that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 

20.) 

V. STANDARD OF REVIEW 

When reviewing a case under the Social Security Act, the Court “must affirm the 

Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to 

proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. at 2009) 

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. at 2007)); see also 42 

U.S.C. § 405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if 

supported by substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial 

evidence is defined as ‘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 (quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 

(6th Cir. 1994)). 

 Although the substantial evidence standard is deferential, it is not trivial. The Court must 

“‘take into account whatever in the record fairly detracts from [the] weight’” of the 

Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting 

Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial 

evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is 

substantial evidence in the record that would have supported an opposite conclusion.’” Blakley v. 

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Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 

1997)). 

Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘a decision of the 

Commissioner will not be upheld where the SSA fails to follow its own regulations and where 

that error prejudices a claimant on the merits or deprives the claimant of a substantial right.’” 

Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 

2007)). 

VI. LEGAL ANALYSIS 

 In her Statement of Errors, Plaintiff contends that the ALJ committed reversible error in 

according the weight that he did to the opinions of her treating physician. The Undersigned 

agrees, and concludes that the ALJ’s error precludes a finding that substantial evidence supports 

his decision.2

 

 The ALJ must consider all medical opinions that he or she receives in evaluating a 

claimant’s case. 20 C.F.R. § 416.927(d). The applicable regulations define medical opinions as 

“statements from physicians . . . that reflect judgments about the nature and severity of your 

impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite 

impairment(s), and your physical or mental restrictions.” 20 C.F.R. § 416.927(a)(2). 

 The ALJ generally gives deference to the opinions of a treating source “since these are 

likely to be the medical professionals most able to provide a detailed, longitudinal picture of [a 

patient’s] medical impairment(s) and may bring a unique perspective to the medical evidence 

that cannot be obtained from the objective medical findings alone . . . .” 20 C.F.R. 

 

2 This finding obviates the need for in-depth analysis of Plaintiff’s remaining assignments of 

error. The Undersigned need not, and does not, resolve the alternative bases that Plaintiff asserts 

support reversal and remand. 

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§ 416.927(d)(2); Blakley, 581 F.3d at 408. If the treating physician’s opinion is “well-supported 

by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with 

other substantial evidence in [the claimant’s] case record, [the ALJ] will give it controlling 

weight.” 20 C.F.R. § 404.1527(d)(2). 

 If the ALJ does not afford controlling weight to a treating physician’s opinion, the ALJ 

must meet certain procedural requirements. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 

(6th Cir. 2004). Specifically, if an ALJ does not give a treating source’s opinion controlling 

weight: 

[A]n ALJ must apply certain factors—namely, the length of the treatment 

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

treatment relationship, supportability of the opinion, consistency of the opinion 

with the record as a whole, and the specialization of the treating source—in 

determining what weight to give the opinion. 

Id.

 Furthermore, an ALJ must “always give good reasons in [the ALJ’s] notice of 

determination or decision for the weight [the ALJ] give[s] your treating source’s opinion.” 20 

C.F.R. § 416.927(d)(2). Accordingly, the ALJ’s reasoning “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.” Friend v. Comm’r of Soc. Sec., No. 09-3889, 

2010 WL 1725066, at *7 (6th Cir. 2010) (internal quotation omitted). 

 Finally, the Commissioner reserves the power to decide certain issues, such as a 

claimant’s residual functional capacity. 20 C.F.R. § 404.1527(e). Although the ALJ will 

consider opinions of treating physicians “on the nature and severity of your impairment(s),” 

opinions on issues reserved to the Commissioner are generally not entitled to special 

significance. 20 C.F.R. § 404.1527(e); Bass v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007). 

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Nevertheless, substantial evidence must support the Commissioner’s RFC finding. Berry v. 

Astrue, No. 1:09CV000411, 2010 WL 3730983, at *8 (S.D. Ohio June 18, 2010). When 

considering the medical evidence and calculating the RFC, “‘ALJs must not succumb to the 

temptation to play doctor and make their own independent medical findings.’” Simpson v. 

Comm’r of Soc. Sec., 344 F. App’x 181, 194 (6th Cir. 2009) (quoting Rohan v. Chater, 98 F.3d 

966, 970 (7th Cir. 1996)); see also Isaacs v. Astrue, No. 1:08–CV–00828, 2009 WL 3672060, at 

*10 (S.D. Ohio Nov. 4, 2009) (holding that an “ALJ may not interpret raw medical data in 

functional terms”) (internal quotations omitted). 

 Here, the ALJ erred in the degree of deference he assigned to Dr. Michalak’s opinions, 

which precludes a finding that substantial evidence supports his decision. The ALJ adopted Dr. 

Michalak’s 2008 opinion in which Dr. Michalak opined that Plaintiff suffered no impairment 

with respect to various physical limitations. (R. at 17.) The ALJ accorded no weight, however, 

to Dr. Michalak’s 2010 opinion in which he opined that Plaintiff suffers various physical 

limitations. In rejecting the more recent opinion, the ALJ stated that “[t]here has been no change 

in the claimant’s condition from April 2008 until May 2010 to warrant the severe limitations 

offered [in the later opinion].” Id. The ALJ cites neither a treatment note from Dr. Michalak nor 

an opinion from another physician to support his conclusion. Nor did he include a single 

physical limitation in his RFC. The ALJ, therefore, failed to articulate good reasons for rejecting 

the medical opinion of Plaintiff’s treating physician. 

 The ALJ’s rejection of the 2010 opinion and his conclusion that Plaintiff suffers no 

physical limitations constitutes error for several reasons. First, contrary to the ALJ’s 

determination, Dr. Michalak did not opine in 2008 that Plaintiff suffers no physical limitations. 

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Although Dr. Michalak wrote the words “no impairment” in a box that refers to whether Plaintiff 

is impaired in her abilities to climb, twist, bend, reach and operate machinery, at the bottom of 

the same page, Dr. Michalak indicated that Plaintiff is unable to “do physical labor.” (R. at 257.) 

Next to this notation, Dr. Michalak wrote in parenthesis: “chronic back pain.” Id. Although at 

best the form contains an inconsistency related to Plaintiff’s physical abilities, it cannot be said 

that the form constitutes evidence that Plaintiff suffers no physical limitations whatsoever. 

 Indeed, every other medical professional that commented on Plaintiff’s physical 

condition opined that she suffered at least some limitation in this regard. Dr. Cook, for example, 

opined that Plaintiff suffers limitations in her ability to bend and lift. (R. at 280.) She also noted 

that stress will exacerbate Plaintiff’s physical symptoms. (R. at 277.) In addition, Dr. Grodner 

opined that although Plaintiff can perform “most types” of physical activity, “weight bearing and 

heavy lifting will be difficult” due to decreased density of her bones. (R. at 480.) The ALJ 

dismissed out of hand the opinions of Drs. Cook and Grodner, and concluded that Plaintiff 

suffers no physical limitations. (R. at 17.) The ALJ’s conclusion, however, finds no support in 

the medical evidence. Again, although he cites to Dr. Michalak’s 2008 opinion to support his 

finding, even this opinion indicates that Plaintiff suffers some physical limitation due to “chronic 

back pain.” (R. at 257.) 

 Furthermore, the ALJ’s stated reason for rejecting Dr. Michalak’s 2010 opinion fails to 

withstand scrutiny. The ALJ rejected Dr. Michalak’s 2010 opinion on the basis that “[t]here has 

been no change in [Plaintiff’s] condition” from 2008 to 2010 that could support the change in Dr. 

Michalak’s conclusion related to physical limitations. (R. at 17.) Dr. Michalak’s 2010 opinion, 

however, indicates that Plaintiff suffered an injury to her arm in March 2010. (R. at 587.) 

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Indeed, the ALJ acknowledges in his decision that “in March 2010 [Plaintiff] was seen for an 

injury to her right arm.” (R. at 14.) The ALJ fails to consider this injury as a potential source of 

change responsible for the increase in physical limitations. For all of these reasons, the ALJ 

erred in rejecting Dr. Michalak’s 2010 opinion and concluding that Plaintiff suffers no physical 

limitations. His error precludes a finding that substantial evidence supports his decision.

 Accordingly, it is RECOMMENDED that the Commissioner’s nondisability finding be 

REVERSED and that this action be REMANDED to the Commissioner and the ALJ under 

Sentence Four of § 405(g). 

VII. PROCEDURE ON OBJECTIONS 

 If any party seeks review by the District Judge of this Report and Recommendation, that 

party may, within fourteen (14) days, file and serve on all parties objections to the Report and 

Recommendation, specifically designating this Report and Recommendation, and the part in 

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy. 

Fed. R. Civ. P. 72(b). 

 The parties are specifically advised that the failure to object to the Report and 

Recommendation will result in a waiver of the right to de novo review by the District Judge and 

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex 

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate 

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district 

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that 

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to 

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magistrate judge’s report and recommendation). Even when timely objections are filed, appellate 

review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994 

(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the 

issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)). 

Date: July 23, 2013 /s/ Elizabeth A. Preston Deavers_____ 

Elizabeth A. Preston Deavers 

 United States Magistrate Judge

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