UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RONNELL LEE JACKSON, 

Plaintiff, Case Number 08-14350

Honorable David M. Lawson

v. Magistrate Judge Donald A. Scheer

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

__________________________________________/

ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND

RECOMMENDATION, DENYING PLAINTIFF’S MOTION FOR SUMMARY

JUDGMENT, GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT,

AND AFFIRMING THE FINDINGS OF THE COMMISSIONER

The plaintiff filed the present action on October 14, 2008 seeking review of the

Commissioner’s decision denying his application for supplemental security income (SSI) benefits

under Title XVI of the Social Security Act. The case was referred to United States Magistrate Judge

Donald A. Scheer pursuant to 28 U.S.C. § 636(b)(1)(B) and E.D. Mich. LR 72.1(b)(3). Thereafter,

the plaintiff filed a motion for summary judgment to reverse the decision of the Commissioner and

award him benefits. The defendant filed a motion for summary judgment requesting affirmance of

the decision of the Commissioner. Magistrate Judge Scheer filed a report on May 19, 2009

recommending that the plaintiff’s motion for summary judgment be denied, the defendant’s motion

for summary judgment be granted, and the findings of the Commissioner be affirmed. The plaintiff

filed timely objections to the recommendation, and the defendant filed a timely response. This

matter is now before the Court.

The Court has reviewed the file, the report and recommendation, the plaintiff’s objections,

and the defendant’s responses thereto and has made a de novo review of the administrative record

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in light of the parties’ submissions. In his objections, the plaintiff seems to concede that that

substantial evidence supports the Administrative Law Judge’s (ALJ) determination that the plaintiff

was not disabled. However, the plaintiff challenges the magistrate judge’s conclusion that the ALJ’s

determination that his back and hip pain was not a “severe” impairment. He argues in his objections,

as he did in his motion for summary judgment, that by discounting the plaintiff’s conditions of S1

joint disorder, back pain, radicular pain, and stenosis in relationship to his lumbar spine as nonsevere, disregarding the plaintiff’s need to use a cane and the side effects of his prescription

medications, not affording sufficient deference to the plaintiff’s treating physicians, and failing to

consider all enumerated impairments together, the ALJ failed to carry out his duties to investigate

the pertinent facts and make a decision supported by substantial evidence. 

The plaintiff applied for SSI on April 24, 2006, when he was thirty-seven years old. He has

a ninth grade education, and has been periodically employed in a variety of temporary factory jobs

involving manual labor. The plaintiff last worked on June 1, 2003, although he alleges that he had

become disabled on April 1, 1998 when he was first diagnosed with Ewing’s sarcoma in the right

buttock. The plaintiff underwent several surgeries to remove the cancerous tumors, and he now

alleges that the ensuing back pain and depression made it impossible for him to work. The plaintiff

currently resides with a relative in the relative’s house, and purportedly engages only in some

limited sedentary activities.

The plaintiff’s application for SSI benefits was denied initially. The plaintiff made a timely

request for an administrative hearing. On April 17, 2008, he appeared at the hearing via video

conference before ALJ Paul R. Armstrong. ALJ Armstrong filed a decision on July 11, 2008 in

which he found the plaintiff was not disabled. The ALJ reached that conclusion by applying the

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five-step sequential analysis prescribed by the Secretary in 20 C.F.R. § 416.920(a)(4). The ALJ

concluded that the plaintiff had not engaged in substantial gainful activity since April 24, 2006, the

application date (step one). The ALJ further concluded that the plaintiff’s dermatofibrosarcoma in

his hip, excised as of April 2006 without recurrence, and depression qualify as “severe” impairments

within the meaning of the Social Security Act; however, the ALJ concluded that the plaintiff’s back

problems did not appear to interfere with the claimant’s ability to engage in basic work activities and

thus are not considered “severe” within the meaning of the Social Security Act (step two). The ALJ

found that none of these impairments alone or in combination met or equaled a listing in the

regulations (step three), and that the plaintiff has no past relevant work (step four). The ALJ next

concluded that the claimant has the residual capacity to perform simple, unskilled sedentary work

with several limitations, and that there are significant number of jobs in the national economy that

fit within the plaintiff’s limitations including assembler, hand packer, or inspector. Based on that

finding and using the Medical Vocational Guidelines found at 20 C.F.R. Pt. 404, Subpt. P, App. 2

§ 204.00 as a framework, the ALJ concluded that the plaintiff was not disabled within the meaning

of the Social Security Act. Following the decision by the ALJ, the plaintiff appealed to the Appeals

Council, which denied the plaintiff’s request for review on September 22, 2008.

The Court has conducted a de novo review of the entire record and the materials submitted

by the parties. The Court cannot find a flaw in the magistrate judge’s analysis and must conclude

that he properly reviewed the administrative record and applied the correct law in reaching his

conclusion. The Court has considered all of the plaintiff’s objections to the report and finds them

to lack merit. First, the plaintiff’s argument that the non-severity finding concerning the plaintiff’s

back pain affected the outcome in this case ignores the fact that other impairments were found to be

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severe. As the magistrate judge observed, reversal is not warranted, and the issue is governed by

Maziarz v. Sec’y of Helath & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987). Second, the

suggestion that the failure to find severe the back pain affected the step three analysis is

unpersuasive because the evidence establishes that the elements of Listing 1.04 (disorders of the

spine) have not been met. Third, the suggestion that the plaintiff’s use of a cane disqualifies him

from sedentary employment ignores the discussion of the evidence and lack of medical

determination that a cane is required, and his assertion that an unnamed consultative physician

supports his view of the evidence lacks specificity. Fourth, the argument that treating physicians’

opinions were disregarded improperly is not fortified by a single reference to an opinion that is

contrary to the ALJ’s residual functional capacity determination.

The Court agrees with the reasoning and conclusions of the magistrate judge.

Accordingly, it is ORDERED that the plaintiff’s objections [dkt. #11] are OVERRULED,

and the magistrate judge’s report and recommendation [dkt # 10] is ADOPTED.

It is further ORDERED that the plaintiff’s motion for summary judgment [dkt # 6] is

DENIED. 

It is further ORDERED that the defendant’s motion for summary judgment [dkt # 9] is

GRANTED. The findings of the Commissioner are AFFIRMED.

s/David M. Lawson 

DAVID M. LAWSON

United States District Judge

Dated: July 26, 2011

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PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on July 26, 2011.

s/Deborah R. Tofil 

DEBORAH R. TOFIL

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