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

KEVIN M. TALLEY,

Plaintiff,

v. CASE NO. 09-CV-10005

COMMISSIONER OF DISTRICT JUDGE GEORGE CARAM STEEH

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 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 a period of disability, disability insurance
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benefits, and supplemental security income benefits. This matter is currently before the Court on

cross-motions for summary judgment. (Docs. 11, 15.)

Plaintiff was 35 years of age at the time of the most recent administrative hearing.

(Transcript, Doc. 5 at 16, 52.) Plaintiff’s relevant employment history includes work as a truck

driver for eleven years. (Tr. at 61.) Plaintiff last worked in 2002. (Id.)

Plaintiff filed the instant claims on April 16, 2004, alleging that he became unable to work

on February 4, 2004. (Tr. at 52-54.) The claim was denied at the initial administrative stages. (Tr.

at 29.) In denying Plaintiff’s claims, the Defendant Commissioner considered coagulation defects

(including hemophilia) as a possible basis of disability. (Id.) On May 14, 2007, Plaintiff appeared

with counsel before Administrative Law Judge (“ALJ”) Regina Sobrino, who considered the

application for benefits de novo. (Tr. at 13-22.) In a decision dated June 14, 2007, the ALJ found

that Plaintiff was not disabled. (Tr. at 22.) Plaintiff requested a review of this decision on August

15, 2007. (Tr. at 9-11.) 

The ALJ’s decision became the final decision of the Commissioner, see Wilson v. Comm’r

of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004), on November 4, 2008, when the Appeals

Council denied Plaintiff’s request for review. (Tr. at 4-6.) On January 2, 2009, Plaintiff filed the

instant suit pro se seeking judicial review of the Commissioner’s unfavorable decision.

B. Standard of Review

In enacting the social security system, Congress created a two-tiered system 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.

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
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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 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
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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, the 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 the 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

of Soc. Sec., 167 Fed. App’x 496, 508 (6th Cir. 2006) (“[a]n ALJ can consider all the evidence
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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 Disability Insurance Benefits Program (“DIB”) of Title II, 42 U.S.C. §§ 401 et seq.,

and the Supplemental Security Income Program (“SSI”) 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 [his] impairments and the fact that [he] is precluded from performing [his]

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 [his] 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 since the alleged

onset date of February 4, 2004. (Tr. at 18.) At step two, the ALJ found that Plaintiff’s

degenerative disc disease, history of an inguinal strain, and an affective disorder were “severe”
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within the meaning of the second sequential step. (Tr. at 18-19.) 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 19.) At step four, the ALJ found that Plaintiff lacked the residual functional

capacity to perform his past relevant work. (Tr. at 21.) At step five, the ALJ found that Plaintiff

had the residual functional capacity to perform a limited range of light work. (Tr. at 19-21.)

E. Administrative Record

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

presented to the ALJ indicates that Plaintiff was examined, at the request of the Disability

Determination Services (DDS) by Neil A. Friedman, M.D., who determined that Plaintiff’s

“[a]ctive range of motion of the major joints of the upper extremities is full,” testing of the muscles

in “the upper extremities reveals grossly intact strength,” “[r]ange of motion in the lower

extremities is full,” and although Plaintiff “reports right groin pain,” he “walks with a grossly

normal gait” and “has no difficulty stepping up onto or off of a 9” high stool.” (Tr. at 99.) Dr.

Friedman concluded that Plaintiff’s “examination was grossly negative other than tenderness in

the region of the right inguinal canal but no bulging mass was identified.” (Tr. at 100.) Dr.

Friedman noted that Plaintiff had reported a work-related inguinal strain injury while operating a

torque gun on February 4, 2004, but that “[n]o hernia was identified” and Plaintiff “was to return

to work with the restriction of no lifting greater than 30 lbs and no use of torque guns. Apparently,

these restrictions were intended to be permanent.” (Tr. at 100.) 

An MRI of the lumbar spine taken in August 2004 showed that “the vertebral heights and

alignment are well maintained.” (Tr. at 116.) The report’s impression statement noted “[s]mall

central disc protrusion with an annular tear at L5-S1 level without any evidence for segmental

spinal stenosis or neural foraminal stenosis.” (Tr. at 116, 159.) An MRI of the bilateral hips taken
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at that time was “[n]egative” with “[n]o evidence of fracture, avascular necrosis, or tears.” (Tr.

at 158.)

Medical records from the Hamilton County Health Network dated December 2006 indicate

that Plaintiff was “requesting pain medication for continued rt groin and hip pain” and that

although he “has seen many doctors over 3 years[, he] has not yet been given a diagnosis.” (Tr.

at 106.) An x-ray of the right hip taken at that time showed that the “joint space appears normal”

and that “[n]o osseous or articular abnormality is seen.” (Tr. at 115.) 

Plaintiff was also treated at the Catholic Charities from December 2006 through March

2007 with the goal of improving communication skills and reducing mood swings. (Tr. at 122-54.)

By March 2007, the counselor noted that Plaintiff had “developed better coping skills” and,

although the counselor opined that Plaintiff “will continue to struggle with depressive issues,” she

indicated she would “proceed with closing the file” since Plaintiff had completed the program.

(Tr. at 122.)

Plaintiff’s daily activity sheets indicated that he is able to care for his own and his

daughter’s basic needs, as well as those of his dogs, and that he watches television, cooks meals,

visits family members, and drives. (Tr. at 94-96.) Plaintiff testified at the administrative hearing

that he can stand, sit or walk for about thirty to forty-five minutes at a time and that he uses a cane

when his pain is at its worst even though no doctor prescribed the cane or suggested that he use

one. (Tr. at 168-69.) At the hearing, Plaintiff testified that his only hobbies are going to church

and going fishing in a large motor boat. (Tr. at 172-73.)

The ALJ asked the Vocational Expert (“VE”) to consider a person with Plaintiff’s

background and:

to assume someone who cannot lift, carry, push or pull more than 10 pounds

frequently, no more than 20 pounds occasionally. Assume an individual who can
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stand and walk six hours in an eight-hour workday, sit up to eight hours in an eighthour workday. The person should not need to climb ladders, ropes, or scaffolds.

Assume a person who can occasionally climb stairs, occasionally stoop, occasionally

crouch. The person should not be exposed to vibration, should not need to use

torque guns. Assume a person is limited to doing work that’s simple and routine and

repetitive. Assume an individual who is able to tolerate superficial contact with coworkers and supervisors, but the person should not have to deal with the general

public as a work duty. Superficial contact would not involve confrontation or

negotiation. Co-workers, however, could leave off materials, pick them up. There

can be a brief exchange of information, but the person should not have to work

together with someone else to get the work duty done. 

(Tr. at 182.) The VE testified that such a person could perform the following jobs existing in the

regional (lower peninsula of Michigan) economy: dishwasher (4,000); janitor (8,300)and assembler

(8,000). The ALJ then asked the VE to assume that instead of being able to lift up to 20 pounds,

he were could lift, push, pull or handle no more than five pounds frequently and no more than ten

pounds occasionally. The VE responded that such a person would be limited to sedentary work

and that the following jobs exist in the regional economy: surveillance system monitor (300);

assembler (6,500) and inspector (2,000). (Tr. at 183.) In answer to a question from the ALJ, the

VE testified that all the jobs he listed would permit a person to sit or stand at will. (Tr. at 186.)

When the ALJ asked the VE whether his testimony was consistent with the information contained

in the Dictionary of Occupational Titles (“DOT”), the VE responded in the affirmative. (Tr. at

184.) 

 F. Analysis and Conclusions

1. Legal Standards

The ALJ determined that Plaintiff possessed the residual functional capacity to perform

light work. (Tr. at 26.) 

Light work involves lifting no more than 20 pounds at a time with frequent lifting

or carrying of objects weighing up to 10 pounds. Even though the weight lifted may

be very little, a job is in this category when it requires a good deal of walking or

standing, or when it involves sitting most of the time with some pushing and pulling
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of arm or leg controls. To be considered capable of performing a full or wide range

of light work, you must have the ability to do substantially all of these activities. If

someone can do light work, we determine that he or she can also do sedentary work,

unless there are additional limiting factors such as loss of fine dexterity or inability

to sit for long periods of time. 

20 C.F.R. § 404.1567(b).

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 or not substantial evidence supports the ALJ’s decision.

2. Substantial Evidence

Plaintiff argues that substantial evidence fails to support the findings of the Commissioner.

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.

Plaintiff contends that the limitation in the hypothetical to simple, routine, and repetitive

work does not accurately address the fact that Plaintiff has a moderate impairment of functioning

in the area of concentration, persistence and pace. (Doc. 11 at 8-13, citing Tr. at 20-21.) There

is no Residual Functional Capacity (“RFC”) assessment or any other medical evidence indicating

that Plaintiff has a moderate impairment in the ability to concentrate, persist, or keep pace.

Plaintiff relies on the ALJ’s statement that such impairment exists but does not meet the Level “C”

criteria. The ALJ’s finding is not medical evidence. However, even assuming such medical

evidence existed, the hypothetical given by the ALJ was not in error.
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A hypothetical limitation to “jobs entailing no more than simple, routine, unskilled work”

is not, by itself, sufficient to convey moderate limitation in the ability to concentrate, persist, and

keep pace. Edwards v. Barnhart, 383 F. Supp. 2d 920, 930-31 (E.D. Mich. 2005) (cited with

approval in Ealy v. Comm’r of Social Security, ___ F.3d ___, 2010 WL 394241, at *11 (6th Cir.

2010)). However, I suggest that the hypothetical provided by the ALJ in this case sufficiently

conveyed the instant Plaintiff’s particular limitations. The hypothetical given thoroughly described

the issues Plaintiff addressed in counseling, e.g., communication skills and reducing mood swings.

(Tr. at 122-54.) The hypothetical included requirements that the individual tolerate only

superficial contact with co-workers and supervisors, should not have to deal with the general

public as a work duty, should not have to confront or negotiate with others, should only be exposed

to brief exchanges of information, and should not have to work together with someone else to get

the work load done. (Tr. at 182.) If anything, the hypothetical may have overstated his limitations

since, by the time his counseling ended, it was reported that Plaintiff had “developed better coping

skills.” (Tr. at 122.) 

I therefore suggest that even if there were medical evidence that Plaintiff was moderately

limited in concentration, persistence and pace, the ALJ’s hypothetical is supported by substantial

evidence. See Infantado v. Astrue, 263 Fed. App’x 469, 477 (6th Cir. 2008) (substantial evidence

supported ALJ’s decision where, although the psychiatrist found “moderate” limitations in the

plaintiff’s ability to maintain attention and concentration for extended periods, the psychiatrist

noted plaintiff’s daily activities and concluded that the plaintiff was capable of performing simple

tasks on a sustained basis); Moore v. Comm’r of Social Security, No. 08-14365, 2009 WL

3698550, at *5 (E.D. Mich. Nov. 5, 2009) (finding no error where plaintiff alleged that the ALJ

failed to adequately account for moderate limitations in ability to maintain concentration,
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persistence, and pace, because doctor concluded that although plaintiff had such limitations, he

could do the simple, unskilled work as addressed in the hypothetical) (citing Johnson v. Comm’r

of Social Security, No. 08-12042, 2009 WL 814509 (E.D. Mich. Mar. 26, 2009)).

Plaintiff also argues that although the ALJ properly incorporated Dr. Benton’s opinion that

Plaintiff should not lift more than ten pounds, the ALJ improperly discounted Dr. Benton’s

conclusion that Plaintiff was not “released to work” in any occupation. (Doc. 11 at 14-15; Tr. at

155.) Since “[i]t is well settled that the ultimate issue of disability is reserved to the

Commissioner,” I suggest that Dr. Benton’s conclusion that Plaintiff was not able to work was

properly discounted by the ALJ. See Kidd v. Commissioner, 283 Fed. App’x 336, 341 (6th Cir.

2008); Gaskin v. Commissioner, 280 Fed. App’x 472, 475-76 (6th Cir. 2008). Even if Dr.

Benton’s opinion included underlying medical opinions, I would further suggest that the ALJ’s

decision to not give controlling weight to his opinion was proper because it was not well-supported

and was inconsistent with other substantial evidence in the record. See Wilson v. Comm’r of Soc.

Sec., 378 F.3d 541, 544 (6th Cir. 2004); 20 C.F.R. § 404.1527(d)(2). 

I further suggest that the hypothetical was in harmony with the objective record medical

evidence as well as the daily activities described by Plaintiff himself, i.e., that he is able to care for

his own and his daughter’s basic needs, as well as those of his dogs, and that he watches television,

cooks meals, visits family members, and drives. (Tr. at 94-96.) 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). 

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

ALJ, which ultimately became the final decision of the Commissioner, is within that “zone of
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choice within which decision makers 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: February 26, 2010 United States Magistrate Judge

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.

Date: February 26, 2010 By s/Jean L. Broucek 

Case Manager to Magistrate Judge Binder