1

The format and style of this Report and Recommendation are intended to comply with the requirements of the

E-Government Act of 2002, Pub. L. 107-347, 116 Stat. 2899 (Dec. 17, 2002), the recently amended provisions of

Fed. R. Civ. P. 5.2(c)(2)(B), E.D. Mich. Administrative Order 07-AO-030, and guidance promulgated by the

Administrative Office of the United States Courts found at: http://jnet.ao.dcn/img/assets/5710/dir7-108.pdf. This

Report and Recommendation only addresses the matters at issue in this case and is not intended for publication in

an official reporter or to serve as precedent.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LAURA STRZELECKI,

Plaintiff,

v. CASE NO. 08-CV-15171

COMMISSIONER OF DISTRICT JUDGE GERALD E. ROSEN

SOCIAL SECURITY, MAGISTRATE JUDGE CHARLES E. BINDER

Defendant.

___________________________/ 

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION1

I. RECOMMENDATION

In light of the entire record in this case, I suggest that substantial evidence supports the

Commissioner’s determination that Plaintiff is not disabled. Accordingly, IT IS

RECOMMENDED 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.

II. REPORT

A. Introduction and Procedural History

Pursuant to 28 U.S.C. § 636(b)(1)(B), E.D. Mich. LR 72.1(b)(3), and by Notice of

Reference, this case was referred to this magistrate judge for the purpose of reviewing the

Commissioner’s decision denying Plaintiff’s claim for Supplemental Security Income (SSI)

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Since this particular portion of the transcript was filed separately as a supplement, it will be referred to by its

Electronic Case Filing (“ECF”) number. All other transcript references are to the originally filed transcript. (Docs.

14-17.)

2

benefits. This matter is currently before this Court on cross-motions for summary judgment. (Docs.

26, 32.)

Plaintiff was 51 years of age at the time of the most recent administrative hearing. (Supp.

Tr., ECF 31 at 6, 13.)2

 Plaintiff’s employment history includes work as a cleaning lady, waitress,

and day care worker. (Tr. at 282.) Plaintiff filed the instant claims on January 19, 2005, alleging

that she became unable to work on February 24, 2002. (Tr. at 181.) The claim was denied at the

initial administrative stages. (Tr. at 37.) In denying Plaintiff’s claim, the Commissioner considered

affective disorders and disorders of back, discogenic and degenerative, as possible bases for

disability. (Id.) 

Plaintiff’s case has a rather lengthy history which need not be completely recited here.

After the instant case was filed in the district court, the case was remanded, at the request of the

Commissioner, because the hearing tape was blank. (ECF 31 at 11.) On remand, Administrative

Law Judge (“ALJ”) Lawrence Blatnik found that Plaintiff was not disabled for Disability

Insurance Benefits (“DIB”) purposes, i.e., was not disabled prior to June 30, 2004, but, in a

concurrently filed opinion, found that Plaintiff was disabled for Supplemental Security Income

(“SSI”) purposes in January 2009. (Tr. at 20; ECF 31 at 15.) The instant case was reopened on

February 8, 2011, and only the unfavorable DIB decision is under review at this time.

B. Standard of Review

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

administrative agency handles claims and the judiciary merely reviews the determination for

exceeding statutory authority or for being arbitrary and capricious. Sullivan v. Zebley, 493 U.S.

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521, 110 S. Ct. 885, 890, 107 L. Ed. 2d 967 (1990). The administrative process itself is

multifaceted in that a state agency makes an initial determination which 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, 142, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987). If relief is not found during the administrative

review process, the claimant may file an action in federal district court. Id.; Mullen v. Bowen, 800

F.2d 535, 537 (6th Cir. 1986) (en banc).

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). See also 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 de novo, resolve

conflicts in evidence, or decide questions of credibility.” Bass v. McMahon, 499 F.3d 506, 509 (6th

Cir. 2007). See also 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). See also 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’”) (citing 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”)); Jones v.

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

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

a determination of disability.”). “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 S.S.R. 96-7p, 1996 WL 374186, at *4).

If supported by substantial evidence, the Commissioner’s findings of fact are conclusive.

42 U.S.C. § 405(g). Therefore, a court may not reverse the Commissioner’s decision merely

because it disagrees or because “there exists in the record substantial evidence to support a

different conclusion.” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006).

See also Mullen, 800 F.2d at 545. The scope of a 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).

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. See also 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).

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 discuss every piece of evidence in the administrative record. Kornecky v. Comm’r

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of Soc. Sec., 167 Fed. App’x 496, 508 (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”);

Van Der Maas v. Comm’r of Soc. Sec., 198 Fed. App’x 521, 526 (6th Cir. 2006).

C. 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. App’x 515, 524 (6th Cir. 2003). There are several benefits programs under the Act,

including the DIB program of Title II, 42 U.S.C. §§ 401 et seq., and the SSI program 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 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); 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.

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Step Three: If the claimant 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.

20 C.F.R. §§ 404.1520, 416.920. See also 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, 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 [her] RFC [residual functional capacity] and

considering relevant vocational factors.” Rogers, 486 F.3d at 241 (citing 20 C.F.R. §§

416.920(a)(4)(v), (g)).

D. ALJ Findings

 The ALJ applied the Commissioner’s five-step disability analysis to Plaintiff’s claim and

found at step one that Plaintiff had not engaged in substantial gainful activity during the period of

her alleged onset date of February 24, 2002, through her date last insured of June 30, 2004. (Tr.

at 14.) At step two, the ALJ found that Plaintiff’s degenerative disc disease of the lumbar spine,

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headaches, sleep apnea, and depression were “severe” within the meaning of the second sequential

step. (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. (Tr. at 15.) At step four, the ALJ found that

Plaintiff could not perform any of her past relevant work. (Tr. at 18.) The ALJ also found that on

the alleged disability onset date, Plaintiff was a younger individual age 18 to 44 and that on March

22, 2004, Plaintiff’s age category changed to a younger individual age 45 to 49. (Id.) At step five,

the ALJ found that Plaintiff could perform a limited range of sedentary work. (Tr. at 15-18.)

Therefore, the ALJ found that Plaintiff was not disabled. (Tr. at 20.)

E. Administrative Record

A review of the relevant medical evidence contained in the administrative record indicates

that Plaintiff had “episodic lower back pain [that] started at the age of 13.” (Tr. at 518.) Plaintiff

was involved in a car accident in February 2002. On the day of the accident, based on Plaintiff’s

reported pain, x-rays of Plaintiff’s right elbow, right foot, and both ankles showed no evidence of

fracture or malignment. (Tr. at 451-52.) An x-ray of Plaintiff’s cervical spine was normal and

showed no signs of soft tissue swelling, but based on Plaintiff’s reported “low cervical spine

tenderness,” a CT scan was recommended. (Tr. at 453.) In addition, x-rays of Plaintiff’s

lumbosacral spine, thoracic spine, and left hip and pelvis showed no evidence of fracture or

malignment. (Tr. at 453-54.)

On March 6, 2002, Plaintiff underwent an MRI of her lumbosacral spine, which was “the

same and there were no significant changes” from the “previous abnormal MRI findings at the

T11-T12 level.” (Tr. at 459.) The MRI showed “[n]o lumbar disc herniation, spinal canal stenosis

or foraminal stenosis.” (Tr. at 594.) 

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On April 10, 2002, Terry D. Howell, M.D., wrote a letter indicating that Plaintiff was

“being treated for chronic back pain, which has intensified after being involved in a motor vehicle

accident” and that “[d]ue to her current health condition, [Plaintiff] is unable to perform janitorial

services.” (Tr. at 566.)

On April 23, 2002, Steven Harwood, M.D., examined Plaintiff and reviewed the results of

an MRI taken on March 6, 2002. Dr. Harwood noted that there were “very minimal degenerative

changes seen at L4 and L5/S1” and that there was “some protrusion of the disc at T11/T12

unchanged from before . . . [but that t]here was no other indication of any problem with the disc

in the lower back or any type of nerve root encroachment.” (Tr. at 482.) Dr. Harwood also found

“[n]o evidence of lumbar radiculopathy.” (Tr. at 483.) 

On May 29, 2002, Dr. Harwood examined Plaintiff and found she was “normal” for sensory

and tone in her lower extremities, that her reflexes were normal, that she could “flex about 70%

of normal,” and that her gait was normal. (Tr. at 478.) Dr. Harwood concluded that Plaintiff had

“some underlying degenerative disc disease on MRI scan, but no evidence of a disc rupture” and

“no evidence of a lumbar radiculopathy.” (Tr. at 479.) Dr. Harwood recommended aquatic therapy

and concluded that neither a TENS unit nor local injections were needed. (Id.) 

On July 12, 2002, Dr. Harwood recommended aquatic therapy and noted that Plaintiff “does

have a history of back pain, so I am not sure it will take it all away, but just get her back to her

baseline.” (Tr. at 477.) On August 28, 2002, Dr. Harwood indicated that Plaintiff was under his

care and that she was currently unable to perform the duties of her regular job and that she would

be re-examined in October. (Tr. at 476.) On October 4, 2002, Dr. Harwood found that Plaintiff

“maintains a normal motor exam.” (Tr. at 474.) 

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In August 2002, H. J. Kim, M.D., examined and evaluated Plaintiff and found that Plaintiff

“has an old low back disorder and claims to have increased pain after the car accident. However,

the clinical findings and the MRI study did not reveal any new findings . . . .” (Tr. at 460.) Dr. Kim

indicated that “[t]hrough my examination, besides her subjective pain and tenderness, I was unable

to identify any significant objective findings to constitute any physical impairment from her spine

and extremities.” (Tr. at 460.) Dr. Kim concluded that Plaintiff “should be able to return to her

previous level of work activities without any contraindication, such as a janitor.” (Tr. at 460.) 

On October 25, 2002, James E. Sander, M.D., performed a neurological examination that

was normal. (Tr. at 495.) On November 18, 2002, Dr. Sander indicated that he “put [Plaintiff] off

of work because of increased pain after the accident from the time that I saw you until the first of

June . . . because of continued soft tissue complaints . . . .” (Tr. at 494.) He went on to state that

“[s]ince there is no additional injury noted on your films, pre and post accident, I am therefore

assuming that your complaints are soft tissue in nature, as you have no specific neurologic deficit

that would require a neurosurgical operation.” (Id.)

On January 15, 2004, an MRI of the lumbar spine revealed “[c]entral disc herniation at T11-

12 resulting in moderate central canal stenosis.” (Tr. at 516.) 

In April 2004, Matthew Smuck, M.D., examined Plaintiff and recommended that she be

referred to a migraine clinic for treatment of headaches but stated that he was sorry that he could

not “be of any significant help from the surgical standpoint, but I feel strongly that surgery in

[Plaintiff’s] case would be contraindicated.” (Tr. at 513.) On April 26, 2004, x-rays of the pelvis

and left hip were normal. (Tr. at 589.)

A physical residual functional capacity (“RFC”) assessment was completed on March 25,

2005, for the period between the alleged onset date of February 24, 2002, and the date last insured

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of June 30, 2004. The RFC indicated that Plaintiff could occasionally lift 20 pounds, frequently

lift 10 pounds, stand or walk about 6 hours in an 8-hour workday, sit about 6 hours in an 8-hour

workday, and was unlimited in her ability to push or pull. (Tr. at 605.) Plaintiff was found to be

occasionally limited in all the postural areas, and unlimited in the manipulative, visual,

communicative and environmental areas. (Tr. at 606-08.) The assessment concluded that Plaintiff’s

“statements appear partially credible” because the “available MER does not support the degree of

impairment alleged.” (Tr. at 609.)

A psychiatric review technique completed on March 25, 2005, for the period between the

alleged onset date of February 24, 2002, and the date last insured of June 30, 2004, concluded that

Plaintiff had an affective disorder, i.e., dysthymic disorder, shown by “sad mood, crying spells,

[and] sleep disruption at times.” (Tr. at 612, 615.) The assessor found that Plaintiff was mildly

limited in her activities of daily living, moderately limited in maintaining concentration,

persistence and pace, and unlimited in maintaining social functioning. (Tr. at 622.)

A mental RFC assessment found that there was no evidence of limitation as to Plaintiff’s

ability to remember locations and work-like procedures or to understand and remember very short

and simple instructions, but that Plaintiff was moderately limited in her ability to understand and

remember detailed instructions. (Tr. at 627.) Similarly, the assessment concluded that there was

no evidence of limitation in Plaintiff’s ability to carry out very short and simple instructions,

sustain an ordinary routine without special supervision, work in coordination with or proximity to

others without being distracted by them, or to make simple work-related decisions. (Tr. at 627.)

Plaintiff was found to not be significantly limited in her ability to carry out detailed instructions

or perform activities within a schedule, maintain regular attendance, and be punctual within

customary tolerances but was moderately limited in her to maintain attention and concentration for

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extended periods and to complete a normal workday and workweek without interruptions from

psychologically based symptoms and to perform at a consistent pace without an unreasonable

number of rest periods. (Tr. at 627-28.) With respect to social interaction and adaption abilities,

Plaintiff was found to either not be significantly limited or there was no evidence of limitation in

these areas. (Tr. at 628.) The assessment concluded that Plaintiff is “capable of simple repetitive

tasks on a consistent and effective basis” and that her “depression is not a significant source of

dysfunction.” (Tr. at 629.)

F. Analysis and Conclusions

1. Legal Standards

In order to be eligible for disability benefits, a person must become disabled during the

period in which he or she has met the statutory special earnings requirements. 42 U.S.C. §§ 416(i),

423(d)(1)(A). Federal courts have therefore held that “[m]edical evidence is relevant to prove a

disability only while the claimant enjoyed insured status. However, medical evidence that

postdates the insured status may be, and ought to be, considered insofar as it bears on the

claimant’s condition prior to the expiration of insured status.” Anderson v. Comm’r of Soc. Sec.,

440 F. Supp. 2d 696, 699 (E.D. Mich. 2006) (citing Estep v. Weinberger, 525 F.2d 757 (6th Cir.

1975); Davis v. Califano, 616 F.2d 348 (8th Cir. 1979); and Begley v. Matthews, 544 F.2d 1345,

1354 (6th Cir. 1976)).

The ALJ determined that during the time she qualified for benefits, Plaintiff possessed the

residual functional capacity to perform a limited range of sedentary work. (Tr. at 15-18.) Sedentary

work involves lifting no more than ten pounds at a time and occasionally lifting and carrying

articles like docket files, ledgers and small tools. Although a sedentary job is defined as one that

involves sitting, a certain amount of walking and standing is often necessary in carrying out job

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duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary

criteria are met. 20 C.F.R. § 404.1567(a)(1991). Social Security Ruling 83-10 clarifies this

definition:

“Occasionally” means occurring from very little up to one-third of the time. Since

being on one’s feet is required “occasionally” at the sedentary level of exertion,

periods of standing or walking should generally total no more than about 2 hours of

an 8-hour workday, and sitting should generally total approximately 6 hours of an

8-hour workday. Work processes in specific jobs will dictate how often and how

long a person will need to be on his or her feet to obtain or return small articles.

SSR 83-10.

After review of the record, I suggest that the ALJ utilized the proper legal standard in his

application of the Commissioner’s five-step disability analysis to Plaintiff’s claim. I turn next to

the consideration of whether substantial evidence supports the ALJ’s decision.

2. Substantial Evidence

As noted earlier, if the Commissioner’s decision is supported by substantial evidence, the

decision must be affirmed even if this 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.

As indicated earlier, the relevant time period for purposes of this appeal is limited to

February 2002 through June 2004. Although Plaintiff bases the onset date on having been in a car

accident in 2002, I suggest that the evidence does not support her allegation that the event caused

her to be disabled during the period of February 2002 through June 2004. Although Plaintiff

reported pain on the day of the car accident, x-rays of Plaintiff’s right elbow, right foot, and both

ankles showed no evidence for fracture or malignment. (Tr. at 451-52.) An x-ray of Plaintiff’s

cervical spine was normal and showed no signs of soft tissue swelling but, based on Plaintiff’s

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reported “low cervical spine tenderness,” a CT scan was recommended. (Tr. at 453.) In addition,

x-rays of Plaintiff’s lumbosacral spine, thoracic spine, left hip, and pelvis showed no evidence of

fracture or malignment. (Tr. at 453-54.) In March 2002, an MRI of her lumbosacral spine was “the

same and there were no significant changes” from the “previous abnormal MRI findings at the

T11-T12 level.” (Tr. at 459.) The MRI showed “[n]o lumbar disc herniation, spinal canal stenosis

or foraminal stenosis.” (Tr. at 594.) 

Although Dr. Howell opined on April 10, 2002, that Plaintiff was “unable to perform

janitorial services[,]” Dr. Howell did not state that Plaintiff was unable to perform sedentary work

nor did Dr. Howell indicate that Plaintiff was permanently unable to perform janitorial services.

(Tr. at 566.)

As of April 2002, Dr. Harwood’s assessment of Plaintiff, after having reviewed an MRI

taken one month earlier, was that there were “very minimal degenerative changes seen at L4 and

L5/S1” and that there was “some protrusion of the disc at T11/T12 unchanged from before . . . [but

that t]here was no other indication of any problem with the disc in the lower back or any type of

nerve root encroachment.” (Tr. at 482.) Dr. Harwood also found “[n]o evidence of lumbar

radiculopathy.” (Tr. at 483.) On May 29, 2002, Dr. Harwood found Plaintiff to be “normal” for

sensory and tone in her lower extremities, found that her reflexes were normal, that she could “flex

about 70% of normal,” and that her gait was normal. (Tr. at 478.) Dr. Harwood concluded that

Plaintiff had “some underlying degenerative disc disease on MRI scan, but no evidence of a disc

rupture” and “no evidence of a lumbar radiculopathy.” (Tr. at 479.) Although Dr. Harwood opined

in August 2002 that Plaintiff was currently unable to perform the duties of her regular job, when

he re-examined her in October 2002, he concluded that Plaintiff “maintains a normal motor exam.”

(Tr. at 474, 476.) 

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In August 2002, Dr. Kim noted that, after the car accident, the clinical findings and the MRI

study did not reveal any new findings. (Tr. at 460.) Dr. Kim indicated that “[t]hrough my

examination, besides her subjective pain and tenderness, I was unable to identify any significant

objective findings to constitute any physical impairment from her spine and extremities.” (Tr. at

460.) Dr. Kim concluded that Plaintiff “should be able to return to her previous level of work

activities without any contraindication, such as a janitor.” (Tr. at 460.) 

In November 2002, Dr. Sander indicated that he “put [Plaintiff] off of work because of

increased pain after the accident from the time that I saw you until the first of June . . . because of

continued soft tissue complaints . . . .” (Tr. at 494.) He went on to state that “[s]ince there is no

additional injury noted on your films, pre and post accident, I am therefore assuming that your

complaints are soft tissue in nature, as you have no specific neurologic deficit that would require

a neurosurgical operation.” (Id.) In April 2004, Dr. Smuck confirmed Dr. Sander when he

indicated that he felt “strongly that surgery in [Plaintiff’s] case would be contraindicated.” (Tr. at

513.)

I therefore suggest that the objective medical evidence from February 2002 through June

2004 provides substantial evidence for the ALJ’s conclusion that Plaintiff was not disabled. I

further suggest that the hypothetical posed to the vocational expert properly incorporated the

limitations found in the mental and physical RFC assessments and that the hypothetical was in

harmony with the objective record medical evidence. See Griffeth v. Comm’r of Soc. Sec., 217 Fed.

App’x 425, 429 (6th Cir. 2007); Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 779 (6th

Cir. 1987).

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3. Conclusion

For all these reasons, after review of the record, I conclude that the decision of the ALJ,

which ultimately became the final decision of the Commissioner, is within that “zone of choice

within which decisionmakers may go either way without interference from the courts,” Felisky,

35 F.3d at 1035, as the decision is supported by substantial evidence. 

III. REVIEW

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

within fourteen (14) 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. Thomas v.

Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed.2d 435 (1985); Frontier Ins. Co. v. Blaty, 454 F.3d

590, 596 (6th Cir. 2006); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005). The parties

are advised that making some objections, but failing to raise others, will not preserve all the

objections a party may have to this Report and Recommendation. McClanahan, 474 F.3d at 837;

Frontier Ins. Co., 454 F.3d at 596-97. Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any

objections is to be served upon this Magistrate Judge.

Within fourteen (14) days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be concise, but commensurate in detail

with the objections, and shall address specifically, and in the same order raised, each issue

contained within the objections.

 s/ Charles` E Binder 

CHARLES E. BINDER 

Dated: October 12, 2011 United States Magistrate Judge

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16

CERTIFICATION

I hereby certify that this Report and Recommendation was electronically filed this date and served upon

counsel of record via the Court’s ECF System, and served on the following non-ECF participant via the United

States Postal Service: Laura Strzelecki, 9615 Beecher Rd, Pittsford, MI 49271-8603.

Date: October 12, 2011 By s/Patricia T. Morris 

Law Clerk to Magistrate Judge Binder

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