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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JESUS TOSCANO

Plaintiff, CIVIL ACTION NO. 08-125140

v. DISTRICT JUDGE JOHN CORBETT O’MEARA

COMMISSIONER OF MAGISTRATE JUDGE VIRGINIA MORGAN

SOCIAL SECURITY,

Defendant.

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REPORT AND RECOMMENDATION

On his current application for social security disability benefits, plaintiff received a

partially favorable decision granting him benefits effective as of January 21, 2008. In his

complaint, he seeks judicial review of the defendant’s decision denying plaintiff’s application for

social security disability benefits from June 1, 2004 until January 21, 2008. Plaintiff was insured

for disability benefits (Title II) through December 1, 2008. Plaintiff was found to be disabled as

of January 21, 2008, the date of the psychiatric examination he had with Dr. Feldstein. Plaintiff

seeks to be determined disabled as of June 4, 2004 when he fractured his wrist.

Plaintiff went through the ninth grade in Mexico and was determined by the ALJ to be

functionally illiterate in English. Plaintiff was 43 at the time of his alleged onset date and has

past relevant work as a painter. The defendant found that plaintiff had history of left wrist

fracture, status post three surgeries, right carpal tunnel syndrome, status post surgery, and

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depression. (Tr. 22) His impairments did not meet or equal the Listing of Impairments. (Tr. 23)

The ALJ found that during the relevant period–from June 4, 2004 to January 21, 2008, plaintiff

was not disabled because he could perform simple, unskilled work with up to three steps of

instructions, could lift or carry 10 pounds frequently and 20 pounds occasionally, up to a third of

the work day with the right, dominant hand; stand or walk, with normal breaks, for six hours of

an 8 hour day, sit for a total of six hours, push pull with the above weight restrictions, perform

bilateral manual dexterity, limited fingering and handling, and with no vibrations. Plaintiff

contends that this determination is not supported by substantial evidence. Defendant disagrees,

and contends that substantial evidence supports the denial. For the reasons set forth in this

Report, it is recommended that the decision denying benefits prior to January 21, 2008 be

affirmed.

Standard of Review

The issue before the court is whether to affirm the Commissioner's determination. In

Brainard v. Secretary of HHS, 889 F.2d 679, 681 (6th Cir. 1989), the court held that:

Judicial review of the Secretary's decision is limited to determining

whether the Secretary's findings are supported by substantial

evidence and whether the Secretary employed the proper legal

standards in reaching her conclusion. 42 U.S.C. §405(g);

Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L. Ed.

2d 842 (1971). Substantial evidence is more than a scintilla of

evidence but less than a preponderance and is such relevant

evidence as a reasonable mind might accept as adequate to support

a conclusion. Consolidated Edison Co. v. NLRB, 305 U.S. 197,

229, 59 S.Ct. 206, 83 L. Ed. 2d 126 (1938). The scope of our

review is limited to an examination of the record only. We do not

review the evidence de novo, make credibility determinations nor

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weigh the evidence. Reynolds v. Secretary of Health and Human

Services, 707 F.2d 927 (5th Cir. 1983).

Brainard, 889 F.2d at 681. 

To establish a compensable disability under the Social Security Act, a claimant must

demonstrate that he is unable to engage in any substantial gainful activity because he has a

medically determinable physical or mental impairment that can be expected to result in death or

has lasted, or can be expected to last, for at least 12 continuous months. 42 U.S.C. §

423(d)(1)(A); 20 C.F.R. § 416.905(a). If a claimant establishes that he cannot perform his past

relevant work, the burden is on the Commissioner to establish that the claimant is not disabled

by showing that the claimant has transferable skills which enable him to perform other work in

the national economy. Preslar v. Secretary of HHS, 14 F.3d 1107 (6th Cir. 1994); Kirk v.

Secretary of HHS, 667 F.2d 524, 529 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983). 

Background

Plaintiff testified that he completed the ninth grade in Mexico, came to this country in

1988, and the ALJ found that he was unable to communicate in English, and thus was deemed

illiterate. He can read and write some in Spanish. Disability was based on physical as well as

mental impairments. (Tr. 27)

The administrative law judge found that before January 21, 2008, plaintiff was able to

perform a limited range of 1,2, or three-step jobs at the light exertional level. He had no

psychiatric treatment prior thereto, but on January 21, 2008, plaintiff was examined for disability

at the request of his lawyer, by Richard Feldstein M.D., a board certified psychiatrist. (Tr. 265)

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Plaintiff attended the examination with an interpreter. Dr. Feldstein found that plaintiff

was 47 years old, married, the father of two children, he came to the United States from Mexico

to better his life. (TR. 265) Plaintiff described his current major problem as related to his

“nerves” and states he is unable to control his emotions and has involuntary movements.

Throughout the examination plaintiff appeared to the psychiatrist to be gasping and choking

involuntarily. Plaintiff stated that this difficulty in breathing and swallowing has been going on

since his accident. In addition, plaintiff described impulsive behavior and impaired judgment,

stated that he was irritable and has low stress tolerance, and easily becomes angry with people.

(TR 266) Plaintiff stated that he was not able to read English at all and can read only on a very

limited basis in Spanish. The examiner opined that plaintiff would have been unable to arrive at

the examination without the assistance of the interpreter. His shoes were untied and he told the

examiner he did not know why but believes that they were not tied because “his wife did not tell

him to tie them today.” According to the examiner, plaintiff presented as marginally in contact

with reality. Plaintiff, while not psychotic, was quite preoccupied with himself and so inwardly

directed that he had limited contact with reality. Plaintiff demonstrated significantly lowered

self-worth and self-esteem. He also appeared quite intense and preoccupied and demonstrated no

spontaneity and only limited verbal productivity. There were no active psychotic symptoms or

indication of thought disorder. According to the examiner, plaintiff’s emotions reflected

depressed mood and affect along with fearfulness, anger, and emotional lability and instability. 

Dr. Feldstein diagnosed major depressive disorder anxiety disorder and psychological factors

affecting his physical condition. (TR. 267) His global assessment of functioning (GAF) was

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rated as 45. In the opinion of the examiner, plaintiff was incapable of functioning in any

occupational area and needed assistance in order to maintain stability with his day-to-day life

circumstance. (TR 268) 

Medically, plaintiff had undergone several surgeries for left wrist fracture after falling

from a ladder in June, 2004. (Tr. 195) The fracture was repaired surgically shortly after the

injury and plaintiff was in occupational therapy from August 2004 through April 2005. (TR 140

– 95) Plaintiff also had carpal tunnel release surgery and claimed he could not lift 2 pounds

with his left, non-dominant hand. Plaintiff had a driver’s license and stated he usually drove

about 20 minutes to the grocery store and was assisted by friends in doing lawn work (TR 354 –

363) 

Plaintiff was treated by hand surgeon Edward Burke, D.O. from February 2005 through

October 2007 and was seen frequently. (Tr.269 – 341) Plaintiff complained of numbness and

tingling and exhibited loss of range of motion and marked pain. (TR 269) A CT scan of the left

wrist revealed multiple fracture lines that could potentially limit range of motion. (TR 274) He

complained of shoulder pain as well but a CT scan of the left shoulder showed no sign of acute

fracture or dislocation in February 2005. (TR 272) In May 2005, plaintiff underwent a second

left wrist surgery on Dr. Burke’s recommendation. He recovered well and was taking only

Tylenol as needed for pain. (TR281, 288, 199) In June, 2005 plaintiff’s fingers and wrist

showed improvement. A July 2005 arthrogram showed focal and linear defects. (TR 292) It

was also noted that the right carpal tunnel syndrome had worsened slightly but the radial sensory

response had improved. (TR 293) In September 2005 plaintiff had another surgery which was

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successful in restoring the angles of the radius. (TR 297 – 300) By early November 2005,

plaintiff had 80 degrees of active motion, full pronation, and 50% supination in the left wrist.

(TR 305) Dr. Burke authorized a return to restrictive level of work as of November 11, 2005. 

(Tr. 303, 305) In March 2006, Dr. Burke advised plaintiff to use his left wrist as normally as

possible. (TR 318) 

Plaintiff was examined in April 2006, by consultive physician Dr. Cynthia Shelby–Lane. 

She noted decreased range of motion in the left wrist and slightly decreased (4/5) grip strength.

(TR 229) Plaintiff also had atrophy in the left forearm and wrist. With respect to the lower

extremities, he did not use a cane or assistive device to walk and had normal gait and stance.

Gross and fine dexterity were bilaterally intact but he had carpal tunnel syndrome on the right.

(TR 229 – 230) In April 2006, state reviewing physician Jack Kaufman, M.D. opined that

plaintiff could lift up to 20 pounds occasionally 10 pounds frequently, stand/walk for 6 hours of

an 8 hour day, sit for 6 hours in an 8 hour day, and push/pull without limitation. (TR 239) Dr.

Kaufman opined that plaintiff had limited handling and fingering ability and should avoid use of

vibrating tools. In January 2007 a CT scan of the left wrist showed no significant changes since

November 2005. Examination showed he was doing well and EMG results showed significant

nerve improvement. (TR 333) He was continued on restrictions by Dr. Burke, limited to no

more than 10 pounds and avoid repeated flexion of the wrist. (TR 337) 

His mental health history begins with the psychiatric examination by Dr. Feldstein. He

had no prior hospitalizations, psychiatric or psychological treatment, and otherwise was not

noted to have any mental impairment. After Dr. Feldstein’s examination, plaintiff underwent a

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consulted psychiatric examination in February by Dr. Gummadi. (TR 246 – 51) According to

Dr. Gummadi, plaintiff reported he was taking Xanax and a pain reliever and was not doing any

household chores. Plaintiff appeared unable to take care of his basic needs. (TR 246–247) The

diagnosis was major depressive disorder and the doctor opined that plaintiff was markedly

limited in understanding, remembering, and carrying out complex instructions. 

At the hearing in April 2008, the ALJ asked a vocational expert when or whether any

jobs existed for persons such as plaintiff. The vocational expert identified unskilled light jobs

such as visual inspector of which is thousand existed regionally and more than that nationally.

(TR 365) If mental limitations prevented him from sustaining concentration, persistence or pace

sufficient to complete a 40 hour work week, then there would be no jobs that he could do. (TR

365 – 366).

Arguments of Plaintiff

Plaintiff argues that it was error for the ALJ not to address plaintiff’s severe emotional

impairments before January, 2008 and should have found, at Step Three, that plaintiff met or

equaled a Listing of Impairments in the Social Security regulations. He argues that based on

plaintiff’s testimony alone it was apparent that condition was long-standing. However, plaintiff

has not shown that prior to January 2008, he had two or more marked limitations in any

functional areas. (See ALJ opinion, Tr 23) Plaintiff’s reports of his daily activities, his medical

records, and his lack of mental health treatment make this conclusion insupportable. Substantial

evidence supports the ALJ’s finding at step 3 that plaintiff did not meet the Listings. It is

plaintiff’s burden to establish his disability. He offered no evidence that he had 2 or more

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marked limitations in any functional areas. Indeed, his reports are to the contrary. In February

2006, plaintiff reported he read the Bible, attended church several times a week, went to the

grocery store and mall, and drove a car. (TR at 23, 97) He did yard work with friends.

Although plaintiff now contends that his ability to step outside the family was nonexistent, the

record does not support this claim. There are no psychiatric examinations, reports, emergency

room treatment, or other treatment records demonstrating that such limitations were present

before January 2008. Before January 2008 plaintiff had reported no problems getting along with

friends or family or authority figures. (TR 23, 103) 

In addition, no medical testimony supports this position. Dr. Feldstein, not a treater but a

one time examiner, does not opine as to plaintiff’s past mental health history. Although great

deference is to be given to medical opinions and diagnoses of treating physicians, Harris v.

Heckler, 756 F.2d 431 (6th Cir. 1985), Dr. Feldstein is not such a physician. Further, the opinion

of the treating physician must be based on sufficient medical data. Garner v. Heckler, 745 F.2d

383, 391 (6th Cir. 1984); Houston v. Secretary of HHS, 736 F.2d 365, 367 (6th Cir. 1984). Here,

the Dr. Feldstein’s conclusion contains no substantiating facts outside of his observation and

interview of plaintiff on one occasion. Under such circumstances, the defendant is not required

to credit such opinions. Cf..Villarreal v. HHS, 818 F.2d 461, 463 (6th Cir. 1987) The fact that

the ALJ did so and found plaintiff disabled as of that date is a benefit to plaintiff. Determination

of disability is ultimately the prerogative of the Commissioner, not the physician. Warner v.

Commissioner of Social Security, 375 F.3d 387 (2004). Importantly, Dr. Feldstein did not offer

any retrospective opinion. While neither a treating nor examining physician's opinion should be

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dismissed merely because it is retrospective, there was no basis for such an opinion here and it

was not offered. See Dousewicz v. Harris, 646 F.2d 771, 774 (2d Cir.1981).

Plaintiff may have had some earlier limitations in terms of concentration, persistence and

pace, and the ALJ took this into account. Plaintiff reported in February, 2006, he could pay

attention for a few minutes at a time. (TR 102) The occupational therapy notes and other

medical records fail to indicate that plaintiff had any problems concentrating on his exercises or

rehabilitation. Despite being seen regularly and frequently by Dr. Burke, none of Dr. Burke’s

records indicate any evidence of mental limitation or incapacity. Nor is there any evidence of

emotional lability or other mental health issues. Plaintiff is described from time to time as

pleasant, able to identify his complaints, reported that he was doing well, and could

appropriately describe his physical difficulties. None of his medical records even mentioned

anything like the physical choking and involuntary gasping noticed by Dr. Feldstein. Dr.

Feldstein, a one-time examiner, did not perform the mental status examination because it

appeared to him that plaintiff was too self-preccupied to undertake it. While the ALJ credited Dr.

Feldstein’s opinion, there is no evidence that plaintiff established the criteria for disability prior

to that date. 

Plaintiff also argues that the ALJ improperly assessed his credibility. Because

determinations of credibility are peculiarly within the province of the ALJ, those conclusions

should not be discarded lightly. Villarreal v. HHS, 818 F.2d 461, 463 (6th Cir. 1987) Further,

the medical record and other evidence did not support his allegations of significantly limiting

impairments prior to January 21, 2008 (TR. 25) When examined by Dr. Burke for his wrist

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problems, it was noted that he spoke English fairly well unlike when he was seen for the

psychiatric examination and stated that he could not speak English at all. (TR 269, 265) 

Plaintiff clearly had physical difficulties involving his wrist with a series of surgeries between

2004 to 2006, though he did well post operatively and regained substantial use of his wrist, hand,

and grip strength. In none of these contacts with physicians did anyone report the kind of

involuntary physical activities of which appeared in the psychiatric examination. This cuts

against his credibility. Further, to the extent that plaintiff raised credible allegations of pain and

limitation, the ALJ accommodated these by finding a residual functional capacity for only

simple, unskilled, light work with limited lifting, carrying pushing and pulling with the left hand

of not more than 10 pounds and restricted him to only occasional bilateral fingering and

handling, and requiring no exposure to vibration. (TR. 24) It was proper for the ALJ to rely on

the vocational expert’s testimony regarding jobs that accommodated these limitations, and it is

clear that the record supports the ALJ’s findings. 

After a careful review of all of the medical records and the briefs, it is recommended that

the defendants’ motion for summary judgment be granted, that of the plaintiff denied, and the

decision denying disability benefits prior to January 21, 2008 be affirmed. The ALJ carefully

considered the facts and circumstances of the relevant period, the medical records of treatment,

and plaintiff’s other activities. She reached a well supported conclusion that plaintiff could

perform a limited range of sedentary work. 

Accordingly, it is recommended that the defendant’s motion be granted, that of the

plaintiff denied, and decision denying benefits prior to January 21, 2008 be affirmed.

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

Recommendation, but are required to act within ten (10) 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). Failure to file specific

objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140

(1985); Howard v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir. 1991); United States v.

Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). The filing of objections which 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. Secretary of HHS, 931 F.2d 390, 401 (6th Cir.

1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). 

Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this

magistrate judge.

Within ten (10) days of service of any objecting party's timely filed objections, the

opposing party may file a response. The response shall be no more than 20 pages in length

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

each issue contained within the objections specifically and in the same order raised.

S/Virginia M. Morgan 

Virginia M. Morgan

United States Magistrate Judge

Dated: November 18, 2009

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PROOF OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record via the

Court’s ECF System and/or U. S. Mail on November 19, 2009.

s/J. Johnson 

Case Manager to

Magistrate Judge Virginia M. Morgan

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