UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GERALD HAYNOR,

Plaintiff, CIVIL ACTION NO. 8-14941

vs. DISTRICT JUDGE ARTHUR J. TARNOW

COMMISSIONER OF MAGISTRATE JUDGE MONA K. MAJZOUB

SOCIAL SECURITY,

Defendant.

________________________/

REPORT AND RECOMMENDATION

I. RECOMMENDATION: This Court recommends that Defendant’s Motion for Summary

Judgment (docket no. 10) be GRANTED, that Plaintiff’s Motion for Summary Judgment (docket

no. 7) be DENIED, and the instant complaint DISMISSED as there is substantial evidence on the

record that claimant retained the residual functional capacity for a limited range of sedentary work

prior to June 30, 1988, when his insured status expired.

***

II. PROCEDURAL BACKGROUND

Plaintiff filed an application for disability and Disability Insurance Benefits on March 9,

2006, alleging that he had been disabled and unable to work since June 1, 1986 due to back pain1

. 

(TR 14, 50, 55, 63, 69-70, 218). Plaintiff’s claim was initially denied. (TR 36, 44). Following a

February 6, 2008 hearing, Administrative Law Judge John L. Christensen (“ALJ”) found that the

1

Plaintiff requested that the alleged onset date be changed from June 1, 1989 to January 27,

1983. (TR 63, 218). Plaintiff reported that he became unable to work as of August 19, 1978. 

(TR 69). 

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claimant was not entitled to a period of disability or Disability Insurance Benefits because he was

not under a disability at any time from January 27, 1983 through the June 30, 1988 date last insured. 

 (Docket no. 14, 20, 212). The Appeals Council denied Plaintiff’s Request for Review. (TR 3-5). 

Plaintiff commenced the instant action for judicial review. The parties 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. Plaintiff must establish that he became disabled on or before

June 30, 1988, the date his insurance status expired. 42 U.S.C. § 416(i), 20 C.F.R.§§ 404.131(a),

404.320(b)(2). The parties do not dispute Plaintiff’s date last insured. 

III. PLAINTIFF’S TESTIMONY, MEDICAL EVIDENCE AND VOCATIONAL EXPERT

TESTIMONY

A. Plaintiff’s Testimony and Reports

Plaintiff was sixty-one years old at the time of the hearing. (TR 221). Plaintiff has a high

school education, attended Air Force electronic warfare school following high school and had

specialized training as a heavy equipment operator. (TR 221-22). Plaintiff testified that he last

worked in 1979 on drill presses, when he worked for three days in a shop. (TR 223). Plaintiff

worked in production at an automotive plant in 1977 and receives workers’ compensation. (TR

223). Plaintiff testified that he stopped working when he was injured in the factory. (TR 224). He

testified that as a result of the injury he was unable to concentrate due to pain, he could not sit or

stand and he suffered severe pain in his back, neck, shoulders and leg. (TR 224). Plaintiff

does not have any restrictions on his driver’s license and he drove himself to the hearing. (TR 221). 

Plaintiff testified that in the mid-1980's he lived in a first floor apartment with his two children. (TR

226). He and his daughter were able to perform grocery shopping and housework. (TR 226). 

Plaintiff testified that at that time he was unable to sleep due to pain in his back, shoulders and legs. 

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(TR 226). He confirmed that he treated his pain with Percodan and Vicodin, which curbed the pain

but “never really helped.” (TR 226). The medications caused him to be sleepy and “sometimes a

little nauseous.” (TR 226). Plaintiff took an average of three naps per day lasting a total of three

hours. (TR 227). Plaintiff testified that at that time he could sit for an average of twenty minutes

at a time before he would get up and move around and he could stand and walk an average of thirty

minutes. (TR 227). Plaintiff was able to lift a gallon of milk but nothing heavier. (TR 228). 

Plaintiff testified that his pain affected his upper extremities and he had difficulty pulling and

pushing and reaching overhead. (TR 228). He agreed that he had problems with grip strength,

opening lids and holding onto objects. (TR 228). He testified that he did not have any energy

during that time. 

At the time of the hearing Plaintiff wore a back brace and had been using a TENS unit for

two years. (TR 229). He testified that in the mid-eighties he also wore the back brace. (TR 229). 

Plaintiff testified that there was no job he could have performed in the mid-eighties on a full time

basis eight hours per day, five days a week for forty hours a week because he could not concentrate,

he was angry because he was in pain and he could not sit still. (TR 230). 

B. Medical and Record Evidence

Plaintiff’s medical records go back to 1971. Plaintiff complained of low back pain as early

as October 4, 1972. (TR 153). The doctor concluded noted that Plaintiff may have pulled a muscle

in the low back and prescribed Robaxin and Darvon. (TR 153). In October 1978, Plaintiff reported

to the hospital with leg and back pain and his provisional diagnosis was sacral radiculopathy. (TR

114). On October 30, 1978, Ted. S. Keller, M.D., and Glenn W. Kindt, M.D., at the University Of

Michigan examined Plaintiff at the request of Plaintiff’s doctor Gerald S. Buchanan, M.D. (TR 112-

13). The doctors noted that Plaintiff reported tiredness and aching sensations in his legs and forelegs

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with throbbing pain progressing to his calves and feet. Plaintiff reported that the pain and tiredness

began several months after he started working in August of 1977 as a manual laborer for an

automobile manufacturer. (TR 112). Plaintiff reported being off work for seven months and despite

attempting to return to work, he was not able to work for more than one hour at a time. (TR 112,

116-17). The doctors noted that examination of Plaintiff’s lumbar spine showed no paravertebral

spasm or list, range of motion was full, straight-leg raising was negative bilaterally, motor

examination showed no focal weakness, sensory examination was intact to all modalities and deep

tendon reflexes were absent at the knees and ankles. The doctors noted that Plaintiff’s condition

may not improve in a job involving a great deal of manual labor and could worsen over the years

and that Plaintiff did not want to change his line of work. (TR 113). Plaintiff was advised to followup in three months and to notify the doctors should he reconsider the option of myelography and

surgery. (TR 113). 

In 1982 Plaintiff underwent an upper gastrointestinal survey and D.R. Limbach, M.D.,

concluded that Plaintiff had chronic gastroduodenitis, ulceration of the duodenal bulb and postbulbar

duodenum, and evidence of subacute enteritis. (TR 131). A December 1983 x-ray of the chest and

cervical spine was negative. (TR 121). 

 The record contains Dr. Roome’s treatment notes for periodic examinations of Plaintiff from

1984 to 1992. (TR 138, 142-43, 145). Plaintiff treated with other physicians at the same clinic

during the time period from 1982. (TR 138-147, 151-53). From December 1982 through 1987

Plaintiff was treated for peptic ulcer disease and was prescribed Tagamet and Drixoral. (TR 118,

122-29, 141-46, 152-53). Plaintiff also treated for skin-related conditions during the same time

period. In October 1986 Plaintiff underwent x-rays of a lump on the anterior tibia of his right leg

following his complaints of the same. (TR 130). Plaintiff was treated for dermatitis in February

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1992. (TR 151-53). Dr. Roome, M.D., provided a note “To Whom It May Concern,” stating that

Plaintiff

 “[I]s a patient of mine and has been disabled for quite sometime now from a work

related neck injury. I did see him at 9:30 of 1988 and 10:07 of 1980 for this neck

problem at the Fenton Medical Center at which time he had acute neck pain and

acute torticollis. At that point he was already disabled for quite sometime and was

already unable to work. It should be noted during this time that I had already seen

him at the Fenton Urgent Care Clinic at that time because of an urgent flare up of his

neck and neck pain. (TR 137). 

The records from Dr. Roome and his associates are set forth in further detail in the analysis below.

In December 1982 Plaintiff complained of muscle spasm on the left side of the neck and into

the back of his scapula. (TR 152). In early January 1983 Plaintiff continued to complain of pain

in the neck and shoulder area, with some tingling in the left arm. (TR 151-52). The doctor noted

that Plaintiff’s lower back was better, Plaintiff would continue his PT and he was “improving.” (TR

152). Plaintiff was prescribed Demerol and Vistaril for pain in the neck and shoulder area and

Valium to aid with relaxation. (TR 151). Plaintiff was prescribed Emperin #4, which he reported

did not provide relief, and Plaintiff was later prescribed Percodan. (TR 151). On January 12, 1983

Plaintiff underwent an EMG of the left upper extremity. Jack R. Grommans, M.D., concluded that

the “electrodiagnostic studies suggest the probability of a spinal cord or root lesion or damage

affecting the C/7 myotome on the left.” (TR 134). Dr. Grommans noted that “[m]otor and sensory

nerve conduction studies of the left ulnar and median nerves” showed values that “are generally

normal throughout with the exception of a border line median latency at the wrist, but the change

is not of a magnitude that may be regarded as of diagnostic significance.” (TR 134). 

On January 27, 1983 Plaintiff was examined by S.V. Ramana Reddy, M.D., M.S., on referral

from J. Martin, M.D. (TR 148-49). Dr. Reddy noted that Plaintiff had reported “a history of neck

pain radiating along the upper extremity associated with paresthesia of (sic) left hand the past three

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weeks.” (TR 148). Dr. Reddy noted “considerable spasm of the paraspinal muscles and trapezius

on the left side of the neck,” minimal restriction in movement of the cervical spine, no evidence of

muscle atrophy or fasciculations, and cervical spine movement was “possible to normal range but

elicited discomfort in the extremes of range of movement.” (TR 149). The doctor diagnosed

“cervical disc protrusion with left C7 radiculopathy.” (TR 149). He noted that Plaintiff was

“improving under conservative management,” so Plaintiff should “continue on the present line of

management with analgesics and home cervical traction for the next two to three weeks.” Plaintiff

was advised to wear a soft cervical collar and the doctor would proceed with a myelography if

Plaintiff’s symptoms persisted or he developed a worsening neurological deficit. (TR 149). 

In October 1988 Plaintiff underwent an EMG of the right upper extremity which was

negative and normal. (TR 132). In November 1988 Plaintiff was examined by J.P. Femminineo,

M.D., upon a referral from Dr. Roome. Plaintiff complained of severe neck and right arm pain after

he fell asleep in an awkward position. (TR 139). The doctor reported that Plaintiff’s medications

at that time were Tagamet and Percodan. (TR 139). Dr. Femminineo concluded that Plaintiff

“exhibits signs and symptoms of probably chronic low grade right C7 radiculopathy with signs and

symptoms as well of a chronic pain syndrome.” (TR 140). Dr. Femminineo’s notes are set forth in

further detail below. November 1988 x-rays of the cervical spine were negative and there was no

herniated disc. (TR 154). 

Plaintiff treated with Gavin I. Awerbuch, M.D., from April 2003 through December 2007. 

(TR 164-212)2

. The record contains an October 12, 2005 note from Gavin I. Awerbuch, M.D.,

2

 Plaintiff has not raised Dr. Awerbuch’s records as an issue in his Motion for Summary

Judgment and the earliest of Dr. Awerbuch’s records post-dates the date last insured by nearly

fifteen years. Plaintiff does not argue that any of Dr. Awerbuch’s records relate to the period on

or before Plaintiff’s date last insured. The Court has reviewed and considered Dr. Awerbuch’s

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written on a prescription pad and stating simply, “Patient is totally + permanently disabled.” (TR

136).

C. Vocational Expert Testimony

The ALJ asked the Vocational Expert (VE) to consider an individual of the same age,

education and work experience as Plaintiff with the ability to do sedentary work limited to no use

of either lower extremity for pushing or pulling, including the use of foot controls, no use of

vibrating tools, only occasional use of either upper extremity for reaching, handling, grasping or

fingering and limited to performing simple, routine tasks. The ALJ asked the VE to consider the

hypothetical questions in the period of time from January 27, 1983 through June 30, 1988. (TR

233). The VE testified that the primary limitation on the sedentary range of work was the limitation

to only occasional use of the upper extremity. (TR 233). The VE testified that such an individual

could perform surveillance system monitor (300 regional jobs in the entire lower peninsula of the

records from this time period and they do not relate to the period on or before Plaintiff’s date last

insured. To the extent that some of the records (Dr. Awerbuch’s records from March 15, 2007,

June 14, 2007 and December 19, 2007, a February 1, 2008 physical medical source statement

and duplicate MRI’s of the cervical and lumbar spine ) were submitted by Plaintiff’s counsel

after the date of the ALJ’s February 13, 2008 decision in this matter, Plaintiff has not asked for a

sentence six remand pursuant to 42 U.S.C. § 405(g), has not shown any reason for his failure to

produce the records prior to the ALJ’s hearing and the records do not relate to the relevant time

frame, are not new and are not material. See Foster v. Halter, 279 F.3d 348, 357 (6th Cir.

2001). “Evidence of a subsequent deterioration or change in condition after the administrative

hearing is deemed immaterial.” Wyatt v. Sec’y of Health and Human Servs., 974 F.2d 680, 685

(6th Cir. 1992) (citing Sizemore v. Sec'y of Health and Human Servs., 865 F.2d 709, 712 (6th

Cir. 1988)). The Court also notes that Dr. Awerbuch in his April 9, 2003 examination noted

that Plaintiff had seen “Dr. Reddy a neurosurgeon, who put him off work permanently . . . .” 

(TR 177). The record contains one report from Dr. Reddy dated January 27, 1983 which opens

by thanking Dr. Martin for referring Plaintiff to Dr. Reddy, thus indicating that this was

Plaintiff’s first examination with Dr. Reddy. (TR 148). Dr. Reddy’s opinions are set forth in

detail above, but there is no evidence that Dr. Reddy put Plaintiff “off work permanently.” (TR

148-49). Dr. Reddy noted that Plaintiff was “improving under conservative management.” (TR

149). 

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State of Michigan), credit clerk (500 regional jobs) and general office clerk (2000 regional jobs). 

(TR 234). The VE testified that the jobs conform to the descriptions found in the Dictionary of

Occupational Titles (DOT). (TR 234). 

The ALJ also asked the VE to consider an individual of the same age, education and work

experience as Plaintiff with the ability to perform sedentary work limited as set forth in the prior

hypothetical question, but with the additional limitation that “as a result of pain, medication required

for pain and fatigue secondary to pain, that individual cannot sustain sufficient concentration,

persistence and pace to do any simple routine tasks on a regular continuing basis,” which would

include eight hours per day, five days per week, forty hours per week. (TR 234). The VE testified

that there would be no jobs available. (TR 234). 

IV. ADMINISTRATIVE LAW JUDGE’S DETERMINATION

The ALJ found that although Plaintiff had not engaged in substantial gainful activity since

June 1, 1986, met the insured status requirements of the Social Security Act until June 30, 1988 and

suffered from a history of leg pain, lumbar stenosis and cervical radiculopathy, he did not have an

impairment or combination of impairments that meets or medically equals the Listing of

Impairments. (TR 16). The ALJ found that Plaintiff was not entirely credible and prior to the

expiration of his insured status, he retained the ability to perform a limited range of sedentary level 

work. (TR 18-20). The ALJ concluded that there are jobs that exist in a significant number in the

national economy that Plaintiff could have performed. (TR 19-20). 

V. LAW AND ANALYSIS 

A. Standard Of Review

Pursuant to 42 U.S.C. § 405(g), this Court has jurisdiction to review the Commissioner’s

final decisions. Judicial review of the Commissioner’s decisions is limited to determining whether

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

standards. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Walters v. Comm’r, 127 F.3d 525,

528 (6th Cir. 1997). 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.’” 

Richardson, 402 U.S. at 401 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938));

Walters, 127 F.3d at 528. It is not the function of this Court to try cases de novo, resolve conflicts

in the evidence or decide questions of credibility. See Brainard v. Sec’y of Health and Human

Servs., 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. See Kirk v. Sec’y of Health and Human Servs., 667 F.2d 524, 536

(6th Cir. 1981), cert. denied, 461 U.S. 957 (1983). If the Commissioner’s decision is supported by

substantial evidence, it must be affirmed, even if the reviewing court would decide the matter

differently, Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983), and even if substantial

evidence also supports the opposite conclusion. See Her v. Comm’r, 203 F.3d 388, 389-90 (6th Cir.

1999); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc) (noting that the substantial

evidence standard “presupposes that there is a zone of choice within which the decisionmakers can

go either way, without interference by the courts”).

B. Analysis

1. Scope of the Court’s Review

Plaintiff’s Social Security disability determination was made in accordance with a five step

sequential analysis. In the first four steps, Plaintiff was required to show that:

(1) he was not presently engaged in substantial gainful employment; and

(2) he suffered from a severe impairment; and

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(3) the impairment met or was medically equal to a “listed impairment;” or

(4) he did not have the residual functional capacity to perform his relevant past work.

See 20 C.F.R. § 404.1520(a)-(f) (2009). If Plaintiff’s impairments prevented him from doing his

past work, the Commissioner, at step five, would consider his residual functional capacity (“RFC”),

age, education and past work experience to determine if he could perform other work. If he could

not, he would be deemed disabled. See id. § 404.1520(g). The Commissioner has the burden of

proof only on “the fifth step, proving that there is work available in the economy that the claimant

can perform.” Her, 203 F.3d at 391. To meet this burden, the Commissioner must make a finding

“supported by substantial evidence that [the claimant] has the vocational qualifications to perform

specific jobs.” Varley v. Sec’y of Health and Human Servs., 820 F.2d 777, 779 (6th Cir. 1987). 

This “substantial evidence” may be in the form of vocational expert testimony in response to a

hypothetical question, “but only ‘if the question accurately portrays [the claimant’s] individual

physical and mental impairments.’” Id. (citations omitted). 

Plaintiff argues that the ALJ erred in assessing his medical records, resulting in an inaccurate

hypothetical question presented to the VE. Plaintiff asks the Court to reverse the ALJ’s decision and

remand the claim for calculation and payment of SSI benefits, or, in the alternative, remand the

claim for further proceedings. (Docket no. 7). 

2. Whether Substantial Evidence Supports the ALJ’s Findings With Respect To The Medical

Record

Plaintiff argues that the ALJ failed to properly evaluate Plaintiff’s medical records for the

time period between the January 1983 onset date and the June 1988 date last insured (the “relevant

period”). (Docket no. 7 at 10 of 14). Plaintiff argues that the ALJ improperly rejected Dr. Roome’s

May 11, 2006 letter referencing the time period in question and stating that Plaintiff “has been

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disabled for quite sometime now from a work related neck injury.”3

 (TR 137). Plaintiff points out

that Dr. Roome’s examination notes during the relevant period are part of the record. 

It is well settled that the opinions and diagnoses of treating physicians are generally accorded

substantial deference. Under 20 C.F.R. § 404.1527(d)(2), the ALJ must give a treating physician’s

opinion controlling weight if it is well supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other substantial evidence in the case record. 

The Sixth Circuit has stated that “[i]n general, the opinions of treating physicians are accorded

greater weight than those of physicians who examine claimants only once.” Walters, 127 F.3d at

529-30. Dispositive administrative findings relating to the determination of a disability and

Plaintiff’s RFC are issues reserved to the Commissioner. See 20 C.F.R. § 404.1527(e). The ALJ

“is not required to accept a treating physician’s conclusory opinion on the ultimate issue of

disability.” Maple v. Comm’r of Soc. Sec., 14 Fed. Appx. 525, 536 (6th Cir. 2001); see also 20

C.F.R. § 404.1527(e). Therefore, the ALJ did not err in failing to adopt Dr. Roome’s conclusory

statement in the May 2006 letter that Plaintiff “has been disabled for quite some time.” (TR 137). 

Defendant argues that Dr. Roome only performed two examinations related to the neck pain

and his other examinations were unrelated to Plaintiff’s neck pain. Therefore, argues Defendant,

Dr. Roome does not have the longitudinal view of Plaintiff’s neck condition “for which treating

sources are valued.” (Docket no. 10 at 15 of 22). 

Plaintiff is correct that the record contains Dr. Roome’s notes of Plaintiff’s office visits

between March 1983 and February 1992. (TR 138, 141-47). As Defendant points out, however,

Dr. Roome’s May 2006 note references visits in 1980 and 1988. These are the only two visits in

3

Plaintiff refers to “Dr. Rome” throughout his brief, who is presumably “Dr. Roome.” (Docket

no. 7 at 10 of 14, TR 137-38). 

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which Dr. Roome treated Plaintiff related to Plaintiff’s neck pain. The 1980 visit pre-dates the

relevant period and the 1988 visit post-dates the date last insured. See Heston v. Comm’r Soc. Sec.,

245 F.3d 528, 536 (6th Cir. 2001) (The doctor’s report was based on a summary of claimant's

medical history, his last examination of claimant was in February of 1992 and claimant’s relevant

period for establishing disability was between November 17, 1992, and June 30, 1994. “Although

medical history is relevant to a claimant's condition, [Dr.] Heston's medical history should not be

given more weight than that of a doctor observing plaintiff during the relevant period of disability.”). 

The remainder of Dr. Roome’s examinations during the relevant time period relate to a bone cyst

on Plaintiff’s anterior tibia, a peptic ulcer for which Plaintiff was hospitalized and skin conditions. 

(TR 141-43). Despite Defendant’s argument that Dr. Roome is not a treating source because he only

examined Plaintiff twice related to neck pain, that evidence is relevant to both longitudinal treatment

for Plaintiff’s neck pain and the corresponding lack thereof. Dr. Roome did not note complaints

related to Plaintiff’s neck pain at the other examinations which occurred during the relevant period. 

It is also noted that Dr. Roome provided the May 2006 letter nearly 18 years after the latest exam

date on which Dr. Roome relies for his opinion, and he did not provide an objective basis for his

conclusory statement that Plaintiff has been disabled for quite some time. 

To the extent that Plaintiff argues that the ALJ did not address Dr. Roome’s examination

notes, the record shows that Dr. Roome practiced at the Fenton Medical Center with Dr. Buck

Buchanan, Dr. James Martin, and Dr. Duane Bailey and Plaintiff treated with Dr. Roome and other

physicians at the Fenton Medical Center from as early as January 1971 to February 1992. (TR 137-

147, 150-53). The ALJ addressed Dr. Martin’s examination of Plaintiff on January 14, 1983 and

note that Plaintiff complained of pain and spasms in the cervical spine. (TR 17). The ALJ correctly

pointed out that Plaintiff required very little treatment during the relevant period. (TR 18). As noted

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above, much of the treatment during the relevant time from Dr. Roome and his fellows was unrelated

to Plaintiff’s neck and back pain and included multiple complaints of skin conditions and peptic

ulcer symptoms.

Plaintiff points out that a January 1983 EMG was an examination of the left upper extremity

which “was read as suggesting spinal cord lesion or damage affecting C7 myotome on left.” 

(Docket no. 7, pp. 11 of 14, TR 134, 150). The statement to which Plaintiff refers was made by J.A.

Martin, M.D., upon review of the EMG. (TR 150). As evidenced by Dr. Martin’s statement, the

EMG studies “suggest the probability of” a spinal cord or root lesion or damage affecting the C7

myotome on the left, but are not conclusive evidence of the same. (TR 134). Following this

examination, Dr. Martin referred Plaintiff to Ramana Reddy, M.D. ( (TR 150). Dr. Reddy concluded

that Plaintiff had “cervical disc protrusion with left C7 radiculopathy” and noted that Plaintiff was

“improving under conservative management,” so Plaintiff should “continue on the present line of

management with analgesics and home cervical traction for the next two to three weeks.” (TR 149). 

The ALJ also considered the October 17, 1988 electrodiagnostic examination, performed

after the date last insured, for which Dr. Roome was the referring physician. Plaintiff argues that

the exam was performed on the right upper extremity despite the ALJ noting that the EMG exam

was performed on the cervical spine. The results of the examination were normal and demonstrated

normal motor and sensory nerve conduction studies of the right upper extremity. (TR 132). The

Court finds that the ALJ’s statement was harmless error where the complete examination was

actually negative, showed normal results and Jack R. Grommons, M.D., noted in the summary that

the examination was “[u]nable to demonstrate evidence suggestive of possible cervical radiculopathy

or other lower motor or sensory neuron disease or damage, at this time.” (TR 132-33). Furthermore,

the sampled muscles represented the “C5-T1 anterior and posterior myotomes.” The ALJ did not

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use this exam alone to determine Plaintiff’s limitations and in fact the ALJ included limitations to

Plaintiff’s upper and lower extremities in the RFC, supported in part by the 1983 MRI of the upper

left extremity. Furthermore, a November 1, 1988 x-ray of the cervical spine was negative. There

was no herniated disc, central canal measurements were normal, facet joints were unremarkable and

neural foramen were free of osteophytes. (TR 154). 

Plaintiff also argues that when he was examined on November 23, 1988 by J. P. Femminineo,

M.D., following a referral by Dr. Roome, he was diagnosed with “signs and symptoms of probably

a chronic low grade right C7 radiculopathy with signs and symptoms as well of a chronic pain

syndrome.” (Docket no. 7). Plaintiff correctly cites Dr. Femminineo’s diagnosis. The doctor’s

summary states that Plaintiff complained “of approximately 2 1⁄2 month history of severe neck and

right arm pain” and reported that his neck problems developed in 1978. (TR 139). The doctor also

noted that Plaintiff “was doing fairly well in a steady state of health until approximately 2 1⁄2 months

ago. Apparently, he fell asleep in an awkward position. Upon awakening he had severe neck pain

with pain referred down the right arm. This pain seemed to have corresponded to the same type of

radicular pain that he described in 1978.” (Docket no. 139). Therefore, the approximate onset of

the probable low grade right radiculopathy was September 1988. (TR 139). This is consistent with

Dr. Roome’s October 7, 1988 note that Plaintiff complained of right arm pain and had a pre-existing

neck problem but had “been quite asymptomatic for quite sometime.” (TR 142).

“Evidence of disability obtained after the expiration of insured status is generally of little

probative value.” Strong v. Soc. Sec. Admin., 88 Fed. Appx. 841, 845 (6th Cir. 2004). “Record

medical evidence from after a claimant's date last insured is only relevant to a disability

determination where the evidence relates back to the claimant's limitations prior to the date last

insured.” Abney v. Astrue, 2008 WL 2074011 at *6 (E.D. Ky. May 13, 2008) (citing Higgs v.

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Bowen, 880 F.2d 860, 863 (6th Cir.1988) (medical evidence after date last insured was only

minimally probative of claimant's condition before date last insured, so did not affect disability

determination) and Begley v. Matthews, 544 F.2d 1345, 1354 (6th Cir.1976) (“Medical evidence of

a subsequent condition of health, reasonably proximate to a preceding time may be used to establish

the existence of the same condition at the preceding time.”)). There is no evidence in the doctor’s

November 23, 1988 notes that the severe right arm pain which Plaintiff complained of had an onset

prior to the June 1988 date last insured. The November 1988 exams and the EMG are of little

probative value to Plaintiff’s impairments during the relevant period. 

Arguably the ALJ’s opinion is sparse, however, the medical record in this matter is similarly

sparse and fails to provide details or objective evidence of the alleged limitations resulting from

Plaintiff’s impairments. See generally Abney at *8 n.1 ( “However, since this Court finds that none

of this evidence relates back, any error that the ALJ may have made in not specifying this analysis

is harmless, and remand would not be warranted.”) (citing Fisher v. Bowen, 869 F.2d 1055, 1057

(7th Cir.1989) (“No principle of administrative law or common sense requires us to remand a case

in quest of a perfect opinion unless there is reason to believe that the remand might lead to a

different result.”)); Heston, 245 F.3d at 536 (“A review of Dr. Haun's report does not mandate a

reversal of the ALJ's determination that Heston was not disabled. Although the ALJ should have

included a reference to the report in its findings, the failure to do so, in this case, was harmless

error.”). The record simply does not contain evidence of impairments or resulting restrictions more

severe than those found by the ALJ. “[M]ere diagnoses alone cannot provide sufficient support for

an assessment of disabling limitations, unless other clinical evidence related to those diagnoses

supports the severity of limitation assessed . . . .” Nicholas v. Astrue, 2009 WL 693159 at *10

(M.D.Tenn. Mar. 13, 2009) (citing Murphy v. Sec'y of Health & Human Servs., 801 F.2d 182, 185

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(6th Cir.1986)). The ALJ’s findings with respect to the medical evidence was based on substantial

evidence in the record. 

3. The ALJ’s Credibility Assessment

Defendant argues that Plaintiff is challenging the ALJ’s credibility determination. Before

moving to the merits of a challenge to the ALJ’s credibility determination in this matter, the Court

notes that this issue was neither raised nor briefed in Plaintiff’s Motion for Summary Judgment. 

Issues not raised before the District Court are waived on appeal. See Shramek v. Apfel, 226 F.3d

809 (7th Cir. 2000). Defendant, however, gives Plaintiff’s brief a strained and generous reading.

Defendant extrapolates from Plaintiff’s allegation that the ALJ presented an improper hypothetical

question to the VE an argument by Plaintiff that “the ALJ should have fully credited Plaintiff’s

claims concerning his pain and side-effects from medication.” (Docket no. 10 at 16 of 22). 

The “issues” as stated in Plaintiff’s Motion for Summary Judgment are the following:

“Whether the Commissioner erred as a matter of law in assessing the medical records of evidence

and, thereby, formed an inaccurate hypothetical that did not accurately portray Mr. Haynor’s

impairments.” Plaintiff in his prayer for relief asks that the decision “be reversed and the case

remanded for further proceedings consistent with the above arguments, specifically to properly and

fully evaluate Mr. Haynor’s severe impairments and the opinions of his treating physicians.” There

is no reference to credibility in Plaintiff’s statement of the issues. Plaintiff has neither raised nor

briefed any issues related to his credibility and despite Defendant’s generous reading and full

defense of the issue, it is not properly before the Court. To the extent that Plaintiff’s statements

about his pain and his fatigue related to medication or pain are implicated in the Court’s review of

the ALJ’s step five analysis, those issues will be addressed therein. 

4. Whether The ALJ Relied On An Accurate Hypothetical Question To The Vocational

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Expert 

Plaintiff argues that by failing to properly assess the medical records, the ALJ formed an

inaccurate hypothetical question for the vocational expert. Although Plaintiff argues that each

element of the hypothetical question “does not accurately describe [Plaintiff] in all significant,

relevant respects,” Plaintiff in his brief fails to identify any specific limitation which the ALJ failed

to consider or include in the hypothetical question. Plaintiff in his brief does, however, quote the

following hypothetical question posed by the ALJ to the VE: 

“[Assume that] as a result of pain, medication required for pain and fatigue

secondary to pain, that individual cannot sustain sufficient concentration, persistence

and pace to do any simple routine tasks on a regular continuing basis. By that, I

mean, 8 hours a day, 5 days a week, 40 hours a week.” (Docket no. 7 at 11 of 14,

TR 234). 

The VE testified that there would be no work available for such an individual. (TR 234). For

purposes of Plaintiff’s Motion for Summary Judgment, the Court will limit its review to this portion

of the hypothetical question which is the only particular point raised by Plaintiff with respect to the

hypothetical question. The Court will treat these limitations as the limitations which Plaintiff argues

were not included in the hypothetical question. See generally Fore v. Astrue, 2009 WL 331353 *6

(E.D. Ky. 2009) slip op. (“The claimant . . . has not identified what factors or limitations the ALJ

failed to include in his hypothetical questions. Thus, the court will not consider this argument.") 

(citing Hollon ex rel. Hollon v. Comm'r of Soc. Sec., 447 F.3d 477, 490-91 (6th Cir. 2006)). The

Court notes that while the limitations due to pain, medication and fatigue were included in one of

the hypothetical questions, they were not adopted by the ALJ and incorporated into the RFC and the

ALJ’s final findings. 

The ALJ pointed out that during the relevant period from January 1983 to June 1988 Plaintiff

required very little treatment. (TR 18). Substantial evidence in the record supports this conclusion. 

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As set forth above, the record during that time shows that much of the treatment which Plaintiff

sought was related to his peptic ulcer disease and skin conditions. The record during this period

does not contain reports of fatigue or side effects as a result of pain medication. The ALJ properly

notes that there was no indication that Plaintiff required surgery or had attended a pain clinic. “In

the ordinary course, when a claimant alleges pain so severe as to be disabling, there is a reasonable

expectation that the claimant will seek examination or treatment. A failure to do so may cast doubt

on a claimant's assertions of disabling pain.” Strong, 88 Fed. Appx. at 846. Dr. Reddy noted that

Plaintiff’s “conservative” treatment was effective. (TR 149). 

The ALJ found that during the relevant period, Plaintiff had the RFC to perform “sedentary

work with no use of either lower extremity for pushing and pulling, including use of foot controls,

with no use of vibrating tools and only occasional use of either upper extremity for reaching,

handling, grasping and fingering.”4

 (TR 17). These findings are supported by substantial evidence

in the record and take into account the limited abilities in the upper extremity supported by the 1983

EMG.

The ALJ posed an accurate hypothetical question to the VE containing these limitations and

properly relied on the testimony of the VE to determine that during the relevant period Plaintiff was

capable of making a successful adjustment to other work that exists in significant numbers in the

national economy. (TR 19). Substantial evidence supports the ALJ’s finding that Plaintiff remained

capable of performing a limited range of sedentary work. 

4

 Sedentary work is defined as work that "involves lifting no more than 10 pounds at a time and

occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a

sedentary job is defined as one which involves sitting, a certain amount of walking and standing

is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are

required occasionally and other sedentary criteria are met." 20 C.R.F. § 404.1567(a). 

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VI. CONCLUSION

The ALJ’s opinion is supported by substantial evidence and there is insufficient evidence

in the record for the Court to find otherwise. Defendant’s Motion for Summary Judgment (docket

no. 10) should be GRANTED, that of Plaintiff (docket no. 7) DENIED and the instant complaint

dismissed. 

REVIEW OF REPORT AND RECOMMENDATION

Either party to this action may object to and seek review of this Report and

Recommendation, but must 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. Sec’y of

Health and Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th

Cir. 1981). Filing objections which raise some issues but fail to raise others with specificity will not

preserve all objections that party might have to this Report and Recommendation. Willis v. Sec’y

of Health and Human Servs., 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 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 objection must

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 limit is extended by the Court. The response shall address specifically,

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

Dated: November 23, 2009 s/ Mona K. Majzoub 

MONA K. MAJZOUB

UNITED STATES MAGISTRATE JUDGE

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PROOF OF SERVICE

I hereby certify that a copy of this Report and Recommendation was served upon Counsel

of Record on this date.

Dated: November 23, 2009 s/ Lisa C. Bartlett 

Courtroom Deputy

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