UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

TIMOTHY W. DEMARS, 

 Plaintiff, CIVIL ACTION NO. 08-13936 

v. DISTRICT JUDGE THOMAS LUDINGTON

MAGISTRATE JUDGE DONALD A. SCHEER 

COMMISSIONER OF 

SOCIAL SECURITY, 

 Defendant.

____________________________/ 

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

RECOMMENDATION: Plaintiff's Motion for Summary Judgment should be DENIED, and

that of Defendant GRANTED, as there was substantial evidence on the record that

claimant retained the residual functional capacity for a limited range of medium work.

* * * 

Plaintiff filed applications for Social Security Disability Insurance Benefits (DIB) and

Supplemental Security Income (SSI) on April 5, 2007, alleging that he had become disabled

and unable to work on March 7, 2006, at age 49, due to mental depression and anxiety.

Benefits were denied by the Social Security Administration. A requested de novo hearing

was held on December 4, 2007, before Administrative Law Judge (ALJ) Henry Perez. The

ALJ found that the claimant retained the residual functional capacity to perform a limited

range of medium work. The ALJ restricted claimant to jobs involving simple, routine

instructions. The Law Judge determined that Plaintiff should have limited contact with the

public. The Appeals Council declined to review that decision and Plaintiff commenced the

instant action for judicial review of the denial of benefits. The parties have filed Motions for

Summary Judgment and the issue for review is whether Defendant's denial of benefits was

supported by substantial evidence on the record. 

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The witness opined that claimant’s alleged inability to concentrate, complete tasks

and remember details due to his emotional difficulties would preclude all work activity

(TR 444). 

2

Plaintiff was 50 years old at the time of the administrative hearing (TR 425). He had

a ninth grade education, but had received a certification in welding. Claimant had been

employed as a welder during the relevant past (TR 62-63, 72-73, 425-426). As a welder,

he did a lot of walking and standing. He had to constantly bend down and reach over his

head. He was required to lift upwards of 10 pounds on a regular basis (TR 63). Claimant

stopped working in March 2006, after being hospitalized for mental depression and anxiety

(TR 133-135, 427-428). He testified that emotional difficulties, particularly his inability to

handle stress and lack of energy, prevented him from returning to work (TR 431-432).

Plaintiff maintained that mental depression caused him to cry, for upwards of 15 minutes,

for no apparent reason (TR 430).

A Vocational Expert, Pauline Pegram, classified Plaintiff’s past work as light, skilled

activity (TR 443). The witness testified that there were no jobs for claimant to perform if his

testimony was fully accepted1

 (TR 444). If he were capable of medium work, however,

there were numerous unskilled janitorial, inspection, sorting, packaging and hand

assembly jobs that he could still perform with minimal vocational adjustment (TR 443).

These simple, routine jobs involved only occasional contact with the public (TR 442).

LAW JUDGE'S DETERMINATION

The Administrative Law Judge found that Plaintiff was impaired as result of major

depressive and generalized anxiety disorders, mild degenerative disc disease and

lumbosacral nerve root irritation, but that he did not have an impairment or combination of

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impairments severe enough to meet or equal the Listing of Impairments. The ALJ

recognized that claimant’s emotional difficulties limited him to simple, routine work

assignments that prevented him from having much contact with the public. Nevertheless,

the ALJ found that the claimant retained the residual functional capacity to perform a

significant number of medium level jobs, as identified by the Vocational Expert.

STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this court has jurisdiction to review the

Commissioner's decisions. Judicial review of those decisions is limited to determining

whether his findings are supported by substantial evidence and whether he employed the

proper legal standards. Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial

evidence is more than a scintilla but less than a preponderance. It is such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion. See

Kirk v. Secretary, 667 F.2d 524, 535 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983).

This court does not try the case de novo, resolve conflicts in the evidence, or decide

questions of credibility. See Brainard v. Secretary, 889 F.2d 679, 681 (6th Cir. 1989);

Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).

In determining the existence of substantial evidence, the court must examine the

administrative record as a whole. Kirk, 667 F.2d at 536. If the Commissioner's decision is

supported by substantial evidence, it must be affirmed even if even substantial evidence

also supports the opposite conclusion, Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)

(en banc), Casey v. Secretary, 987 F.2d 1230 (6th Cir. 1993), and even if the reviewing

court would decide the matter differently, Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th

Cir. 1983).

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The first area of the B criteria, known as “activities of daily living”, includes cleaning,

shopping, cooking, maintaining a residence, using the telephone and caring for one's

grooming and hygiene. The second area, social functioning, refers to an individual's

capacity to interact appropriately and communicate effectively with others, including family,

friends and merchants.

4

In the instant case, Plaintiff does not challenge the Law Judge’s determination that

his physical impairments would not interfere with his ability to perform a restricted range

of medium work. Instead, the claimant maintains that emotional difficulties, particularly his

inability to handle workplace stress, have prevented him from returning to work. The law

is clear, however, that the mere existence of an impairment, even a severe one, will not

entitle the claimant to disability benefits unless the impairment prevents him from returning

to his previous work or any other substantial, gainful activity existing in the national

economy, considering his age, education and work experience. 42 U.S.C. § 423(d)(2)(A),

20 C.F.R. § 416.1505 (2005).

DISCUSSION AND ANALYSIS

Substantial evidence existed on the record supporting the Commissioner's

conclusion that Plaintiff remained capable of performing a significant number of unskilled,

medium jobs that did not involve much interaction with the public. The medical evidence,

as a whole, failed to provide objective support for Plaintiff’s allegations of a disabling mental

disorder. Although the Law Judge found the presence of a mental impairment identified in

the A criteria (mental depression and generalized anxiety), the evidence failed to establish

significant functional limitations identified in the four categories of the “B” criteria. 

The evidence of record shows that Plaintiff remains capable of performing a variety

of daily activities and that he is able to communicate effectively with others.2

 Dr. Thomas

Tsai, a reviewing state agency physician, reported in June 2007, that the claimant had only

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The third area of function evaluated under the “B” criteria is concentration,

persistence, and pace, which refers to the "ability to sustain focused attention sufficiently

long to permit the timely completion of tasks commonly found in work settings." 20 C.F.R.

Pt. 404, Subpt. P, App. 1, § 12.00(C)(3).

5

mild restrictions in activities of daily living (TR 406). The assessment was based, in part,

on Plaintiff’s testimony that he was able to care for his son, perform household chores, go

shopping, attend weekly church services and prepare meals (TR 102-108, 112-116, 434-

438). While Plaintiff allegedly had difficulty interacting with others, due to depression, the

record reveals that he was evaluated for a kidney donation (TR 18, 355). This suggests

a substantial ability to reach out to other people in their time of need. Given this evidence,

the Law Judge reasonably determined that claimant's daily activities and social functioning

were, at most, moderately restricted. 

While Plaintiff alleged that his depression interfered with his memory and ability to

concentrate,3

 he also indicated that he was able to read, watch television and care for his

teenage son (TR 437-438). The ability to read or watch televison stands in sharp contrast

to his allegation that he suffered from a complete inability to concentrate. Dr. Sarva

Sarvananda, a treating psychiatrist, reported in March 2006, that Plaintiff was well oriented,

logical and goal directed. Sensorium and cognition were said to be intact, and his judgment

was not impaired (TR 339). Moreover, Debbie Gorney-Jankowski, a nurse practitioner

working with Dr. Sarvananda, indicated in May 2007, that Plaintiff’s attention span was

normal, and that his memory was intact (TR 333). Furthermore, the claimant’s ability to

read, perform household chores and care for his teenage son suggests that he retained at

least a minimal level of concentration as would be required in performing the unskilled jobs

identified by the Vocational Expert.

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Contrary to Plaintiff’s assertion, there was no medical corroboration that side effects

from the medications required him to nap in order to relieve chronic fatigue and dizziness.

6

The last area of function under the “B” criteria is deterioration or decompensation

in work or work-like settings, which refers to the "repeated failure to adapt to stressful

circumstances which cause the individual either to withdraw from that situation or to

experience exacerbation of signs or symptoms." 20 C.F.R. Pt. 404, Subpt. P, App. 1, §

12.00(C)(4). Dr. Tsai indicated in June 2007 that the claimant could maintain socially

appropriate behavior, and keep up basic standards of neatness and cleanliness. The

doctor added that Plaintiff could make simple, work-related decisions, and independently

perform routine, repetitive tasks. Claimant reportedly had the capacity to understand,

remember and carry out short, simple instructions (TR 410-412). No physician imposed a

specific work preclusive limitation on claimant’s functioning. Although Plaintiff contended

that depression and anxiety caused profound cognitive limitations, his depressed mood

showed much improvement following a five day voluntary hospitalization in March 2006 (TR

133-134)

 The claimant’s depression was no doubt exacerbated by the pain caused by his

various physical ailments. Each condition has apparently improved with the help of

medications to the point of no longer being disabling4. The medical evidence also failed to

show that the claimant has suffered any episodes of decompensation. Plaintiff’s ability to

speak in a logical, coherent manner while remaining well organized (TR 147) suggests that

he does not suffer disabling anxiety or depression. Furthermore, the types of unskilled jobs

identified by the Vocational Expert (assembly, sorting and packaging) would not cause a

great deal of stress. These entry level jobs did not involve interaction with the public

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In cases where, as here, the Appeals Council declines to review the ALJ's decision,

judicial review is limited to the evidence that was part of the record before the Law Judge.

Cotton v. Sullivan, 2 F.3rd 692 (6th Cir. 1993); Casey v. Secretary, 987 F.2d 1230, 1233

(6th Cir. 1993); Wyatt v. Secretary, 974 F.2d 680, 685 (6th Cir. 1993). Consequently, the

March 2008, report from Dr. Sarvananda, submitted to the Appeals Council only (TR 417),

was not considered by the undersigned. This report cannot serve as the basis for a

remand order under sentence six of the Social Security Act because Plaintiff failed to

demonstrate good cause for not submitting the evidence earlier to the ALJ.

6

The ALJ rejected the doctor’s opinion, setting forth persuasive reasons for doing

so. As noted by the Law Judge, Dr. Sarvananda did not have a sufficient treating

relationship with claimant (TR 19). The record indicates that Dr. Sarvananda relied

primarily upon Ms. Jankowski, his nurse practitioner, to complete all but one of claimant’s

treatment records (TR 322, 334, 340, 343, 393). Moreover, a review of the doctor’s lone

evaluation record shows he documented few objective test results (TR 325-327. Indeed,

it appears the doctor’s statements were based primarily on Plaintiff’s subjective complaints,

rather than the objective medical evidence.

7

(TR 442-4443). The Law Judge properly found that the degree of limitation for each of the

four B criteria was only moderate and not severe. As a result, Plaintiff did not meet the

requirements of the Listing of Impairments. 

Plaintiff relies heavily upon the fact that Dr. Sarvananda described him as totally

disabled5

 (TR 324, 327). It is well settled that opinions of treating physicians should be

given greater weight than those of one-time examining doctors retained by the government.

Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980). However, the opinion of a treating

physician is entitled to deference only if his clinical findings are uncontradicted by

substantial medical or other evidence, and if the opinion is based on detailed, clinical,

diagnostic evidence. Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). Since Dr.

Sarvanda offered little objective evidence to support his conclusion of disability, his opinion

need not have been given any special weight6. Miller v. Secretary, 843 F.2d 221, 224 (6th

Cir. 1988). Under these circumstances, the totality of the evidence must be considered.

Landsaw v. Secretary, 803 F.2d 211, 213 (6th Cir. 1986). 

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It is the rare case, the exception, in which every piece of evidence points

incontrovertibly towards a decision to deny benefits. There was evidence in the record

which, taken in isolation, might suggest that the Plaintiff was totally disabled and that his

testimony was fully credible. However, special deference is owed to the credibility findings

of the ALJ, who was the only one who had the opportunity to observe the demeanor of the

witness, evaluate what was said and how it was said, and to consider how that testimony

fit in with the rest of the medical evidence. Such observation is invaluable and should not

be discarded lightly. Beavers v. Secretary, 577 F.2d 383 (6th Cir. 1978). See also

Williamson v. Secretary, 796 F.2d 146, 150 (6th Cir. 1986).

By establishing that he could not return to his past relevant work, the Plaintiff here

effectively shifted to the Commissioner the burden of proving that he had the vocational

qualifications to perform alternative jobs in the economy, notwithstanding his various

impairments. The Commissioner, however, met his burden of proving the existence of jobs

which accommodated claimant's known restrictions. In response to hypothetical questions

that took into consideration claimant's educational and vocational background, along with

his significant impairments, the Vocational Expert testified that there were numerous

unskilled janitorial, inspection, sorting, packaging and hand assembly that he could still

perform with minimal vocational adjustment (TR 443). These simple, routine jobs involved

only occasional contact with the public (TR 442). Given the objective clinical findings of the

examining physicians of record, substantial evidence existed on the record that Plaintiff

retained the residual functional capacity for a restricted range of medium work activity. 

 In sum, the Commissioner's decision to deny benefits was within the range of

discretion allowed by law and there is simply insufficient evidence for the undersigned to

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find otherwise. Accordingly, Plaintiff's Motion for Summary Judgment should be denied,

that of Defendant granted and the instant Complaint dismissed. 

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). Failure to file specific objections constitutes a

waiver of any further right of appeal. United States v. Walters, 638 F.2d 947 (6th Cir.

1981), Thomas v. Arn, 474 U.S. 140 (1985), Howard v. Secretary of HHS, 932 F.2d 505

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

Cir. 1987), Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir. 1991). Pursuant to Rule

72.1 (d)(2) of the Local Rules of the United States District Court for the Eastern District of

Michigan, 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 not more than five (5) pages in

length unless by motion and order such page limits are extended by the Court. The

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

within the objections.

s/Donald A. Scheer

 DONALD A. SCHEER 

 UNITED STATES MAGISTRATE JUDGE

DATED: April 28, 2009

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______________________________________________________________________

CERTIFICATE OF SERVICE

I hereby certify on April 28, 2009 that I electronically filed the foregoing paper with

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

electronically. I hereby certify that a copy of this paper was mailed to the following nonregistered ECF participants on April 28, 2009: None.

s/Michael E. Lang 

Deputy Clerk to 

Magistrate Judge Donald A. Scheer

(313) 234-5217

 

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