UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

REGINA M. CLARK,

Plaintiff, CIVIL ACTION NO. 08-15324

vs.

DISTRICT JUDGE JOHN CORBETT O’MEARA

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, Plaintiff’s Motion for Summary Judgment (docket no. 7)

be DENIED, and the instant Complaint DISMISSED. 

***

II. PROCEDURAL HISTORY:

Plaintiff filed an application for a period of disability and Disability Insurance Benefits on

November 18, 2005, alleging that she had been disabled since June 17, 2004 due to a right shoulder

rotator cuff injury and injuries to both knees. (TR 56-59, 81). The Social Security Administration

denied benefits. (TR 42-45). A requested de novo hearing was held on July 21, 2008 before

Administrative Law Judge (ALJ) Larry Meuwissen who subsequently found that the claimant was

not entitled to a period of disability or Disability Insurance Benefits because she was not under a

disability at any time through the date of the ALJ’s August 8, 2008 decision. (TR 20, 28, 426). The

Appeals Council declined to review the ALJ’s decision and Plaintiff commenced the instant action

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for judicial review. (TR 6-8). 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. 

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

TESTIMONY

A. Plaintiff’s Testimony 

Plaintiff was forty-five years old at the time of the administrative hearing. (TR 431). She

has a GED and attended nursing school for three months but did not finish. (TR 433). Plaintiff has

past work experience as a custodian for a school district and testified that she can no longer perform

that work due to impairments of her shoulder and both knees. (TR 433-34). She testified that she

has been receiving workers’ compensation since 2005. (TR 435). 

Plaintiff is a widow with four adult children. (TR 432). Her youngest child is eighteen years

old and lived at home before going to college. (TR 432). Plaintiff’s husband passed away nine

months prior to the hearing. (TR 432). He had been ill for approximately five months and Plaintiff

provided care for him during that time. A visiting nurse also provided care once a week. (TR 433).

Plaintiff testified that she had shoulder surgeries in 2004 and 2005 and she has trouble lifting

and carrying heavy items. (TR 434). She had surgery on her knees in 2005 and 2006. (TR 434).

Plaintiff testified that she takes a cane with her to church or to the store, however, she did not have

one at the hearing. (TR 434, 444). She takes blood pressure medication, a water pill and medication

for her knee pain and takes prescription Motrin at night, but she tries not to use it every night

because “it would cause other problems.” (TR 435, 444). 

Plaintiff testified that her right knee and left ankle swell with increased walking and standing

and she has trouble bending her knees. (TR 71, 436, 442). She can walk approximately half a

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block, stand for about twenty minutes before her knee buckles. She can sit for up to forty-five

minutes before she needs to elevate her leg. (TR 437, 444-45). Plaintiff testified that she is not

involved in any social activities except attending church. (TR 437). She testified that she does her

own housework in ten or fifteen minute intervals before she sits down. (TR 438-39). Plaintiff

elevates her leg waist high for swelling and approximately two days per week she wears a brace to

immobilize her right leg. (TR 438-39). Plaintiff testified that the water pill helps a little with the

swelling. (TR 439). 

Plaintiff reported that she has trouble reaching over her head and she has right shoulder pain

when she washes dishes or puts them away. (TR 71, 443). She needs assistance from her daughter

to put the plates away. (TR 443). She testified that she can lift about twenty pounds, but not

regularly. (TR 445). Plaintiff attended workers’ compensation-related rehabilitation for her

shoulder. (TR 446). 

Plaintiff reported that she grocery shops for herself for approximately one hour every two

weeks. (TR 73, 438). She watches television for an hour or two a day and listens to music. (TR

442). At the time of her application Plaintiff reported that she was taking Accupril for cholesterol,

furosemide (Lasix) for her knees, and hydrocodone with APAP (acetaminophen), Ibuprofen,

Nabumetone and Tramadol for pain. (TR 87).

Plaintiff completed a Health Status Questionnaire with Simple Shoulder Test on February

6, 2006 in which she indicated that she can carry twenty pounds at her side with her affected

extremity but would have pain afterward. (TR 163-64). She also indicated that her shoulder

impairment would not allow her to work full-time at her regular job. (TR 163). 

B. Medical Record

1. Right Shoulder Impairment

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Plaintiff sustained a work-related injury to her right shoulder in June 2004. (Docket no. 103-

11). A June 17, 2004 x-ray of the shoulder was negative. (TR 111). An MRI of the right shoulder

on July 17, 2004 revealed “hypertrophic degenerative changes about the acromioclavicular joint

with impingement on the underlying musculotendinous junction of the supraspinatus” and a full

thickness tear of the supraspinatus tendon at its insertion with approximately 1-2 cm of retraction.

(TR 327). In August 2004 Mitchell Z. Pollak, M.D. performed an arthroscopy of the right shoulder

with open rotator cuff repair and anterior/inferior acromioplasty. (TR 318). 

On June 9, 2005 Dr. Pollak reported that following injection of Plaintiff’s shoulder, she had

“significant improvement in pain and her ability to function and bring the arm up and down without

difficulty.” (TR 298). On July 21, 2005 Dr. Pollak notified Plaintiff’s employer that she should be

able to return to work after she recovered from her knee surgery. Dr. Pollak reported that Plaintiff

would not be able to perform over the shoulder work or lift more than twenty pounds. (TR 296).

On August 4, 2005 Dr. Pollak clarified that the twenty-pound lifting restriction was applicable to

the right shoulder, “therefore, she could probably lift a total of 40 lbs. utilizing both shoulders” and

that the restriction on over the shoulder level work “will probably be permanent in nature.” (TR

295). A November 17, 2005 MRI of the right shoulder showed “[t]hickening of the distal

subscapularis and infraspinatus tendon consistent with tendinosis/tendinitis” and a supraspinatus

tendon was identified up to 1-2 cm from the insertion. (TR 324). 

On January 23, 2006 Steve A. Petersen, M.D., examined Plaintiff at the request of Dr. Pollak.

(TR 209). He noted that Plaintiff reported her shoulder pain as rated at a 6 on a ten-scale. (TR 209).

The doctor diagnosed Plaintiff with right rotator cuff tendinosis with subacromial bursitis and right

glenohumeral joint arthrosis. (TR 211). The doctor noted no evidence of recurrent rotator cuff tear.

(TR 211). On February 14, 2006 Dr. Petersen performed a “arthroscopic subacromial bursectomy

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with debridement and biceps release with chondroplasty of her right humeral head for chronic

supraspinatus tendonosis (sic) and glenohumeral joint arthrosis” of the right shoulder. (TR 133-35,

205). By April 2006 Dr. Petersen noted that Plaintiff reported her pain at most at a 4 on a scale of

ten and approximate 50 percent improvement compared to her pre-operative symptoms. (TR 201).

The doctor ordered that Plaintiff was to advance her activities, allowing a work hardening program

to be performed. (TR 201). Plaintiff was taking Norco and was prescribed Motrin for pain. (TR

201)

Plaintiff attended physical therapy following her acromioplasty repair of the right shoulder

from April 17, 2007 to June 26, 2007. (TR 308, 312, 314-16, 335). At the time of her discharge

from physical therapy it was noted that Plaintiff’s right shoulder reaching above the head and

reaching into cabinets was 20% better and her pain was rated at a level 3-4 of a scale of 10. (TR

335). Plaintiff had achieved decreased pain and increased strength and range of motion. (TR 335).

Plaintiff had made no progress with her difficulty in combing her hair. (TR 335). 

On May 7, 2007 Dr. Pollak noted that Plaintiff’s range of motion in the shoulder was “much

better and with less discomfort.” (TR 399). On June 18, 2007 Dr. Pollak noted that a Grashey’s

view of the shoulder showed no evidence of glenohumeral arthritis. (TR 398, 408). On December

13, 2007 Dr. Pollak noted that “[r]ight now, [Plaintiff] is not complaining too much of shoulder or

knee pain. Her major problem is the left ring finger which she injured a few months ago taking care

of her husband, trying to roll him over in bed.” (TR 373). An October 31, 2007 x-ray of the left

hand was negative. (TR 391). 

2. Knee and Other Impairments

During this period, Plaintiff also complained of impairments of her knees. A December 2004

MRI of the right knee showed a “possible oblique tear, posterior horn medial meniscus extending

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to the interior articular surface” and “[s]uspect Grade I sprain, medial collateral ligament” with

Plaintiff demonstrating “rather diffuse edema in the subcutaneous fat planes about the knee” and

“modest joint effusion.” (TR 322). In December 2004, Dr. Pollak performed a right knee

arthroscopy meniscectomy and compartment chondroplasty. (TR 114-15, 306, 309). Plaintiff

attended physical therapy and in February 2005 Dr. Pollack noted that she had made progress in

physical therapy but did not have 100 percent range of motion. (TR 305). Dr. Pollak noted that at

that time he could not send her back to work without restrictions and Plaintiff indicated that she

could not return to work with restrictions, so the doctor noted that she would “remain off work until

her next visit in approximately one month.” (TR 304, 305). 

Dr. Pollak noted that Plaintiff’s right knee was “significantly improved” on March 31, 2005,

following complaints of popping and catching in the knee and swelling and small effusion earlier

in March. (TR 302, 303). Lasix had reduced Plaintiff’s edema. (TR 302-03). A May 2005 MRI

of the left knee revealed a “[t]ear of the posterior horn of the medial meniscus” and “[p]ossible

sprain of the medial collateral ligament.” (TR 323, 325). On July 1, 2005 Dr. Pollak performed an

arthroscopy and debridement of Plaintiff’s left knee. (TR 112-13, 297). In October and November

2005 and again in June 2006 Plaintiff underwent a series of three Synvisc injections to the right

knee. (TR 290-93). 

In December 2005 Plaintiff complained of a fall in which she hurt her left knee. (TR 290).

Plaintiff opted to treat the knee with oral medication and ice rather than aspiration and injection with

corticosteriod. (TR 290). Plaintiff continued to complain of knee pain and/or buckling from May

2006 through March 2007 with some pain relief following the viscosupplementation injections. (TR

285-288).

On January 30, 2006 Dr. Pollak reported that Plaintiff continued to experience pain in her

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knee and has “severe chondromalacia but not bad enough to warrant” a total knee arthroplasty. (TR

290). He stated that she would continue to be treated with oral nonsteroidal anti-inflammatory

medicine, visco supplementation and chondral protective agents such as Glucosamine and

Chondroitin. (TR 290). He also stated that he would see her for follow-up in a few months and that

“[i]t does not appear that she will be going back to work.” (TR 290). On April 6, 2006 Dr. William

Higginbotham examined Plaintiff and the MRIs of her knees and concluded that she had

degenerative changes in the knees and likely chondromalacia. (TR 168). The doctor recommended

weight loss and improving quad strength to diminish her symptoms. (TR 168). 

In March 2007 Plaintiff complained of bilateral knee pain and Dr. Pollak noted that an x-ray

from December 8, 2006 showed a moderate degree of cartilage space and that Plaintiff had not

benefitted greatly in the past from Hyaluronate injections. (TR 373, 407). He continued treating

Plaintiff with oral nonsteroidal anti-inflammatories, Glucosamine and Chondroitin and topical

application of Capsaicin. (TR 373). 

Plaintiff treated with Geoffrey Trivax, M.D., from January 2007 through November 5, 2007

for elevated transaminases. (TR 250-81, 389-90). Evidence shows that Dr. Trivax treated Plaintiff

as early as May 2003 and in March and April 2005 Dr. Trivax noted that Plaintiff reported swelling

and stiffness in the knees and/or legs. (TR 228, 230, 250). A February 2007 CT of the abdomen

showed “[m]ild diffuse fatty infiltration of the liver without hepatosplenomegaly, upper abdominal

ascites, or acute hepatobiliary obstruction,” and “[s]mall to moderate midline anterior abdominal

wall/ventral/incisional hernia without acute GI obstruction.” (TR 244). Alan Cutler, M.D., noted

in a letter to Dr. Trivax that Plaintiff’s AST and ALT remained at 91 and 75 and that he had

discussed with Plaintiff alcoholic versus nonalcoholic fatty liver disease and possible NASH. (TR

282-83, 390). 

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3. Physical Residual Function Assessments and Vocational Rehabilitation

An agency medical consultant, Jack Kaufman, completed a Physical Residual Functional

Capacity Assessment dated February 3, 2006 and concluded that Plaintiff has the ability to

occasionally lift and/or carry twenty pounds, frequently lift and/or carry ten pounds and stand and/or

walk about six hours and sit about six hours of an eight-hour workday. (TR 124-32). On May 16,

2006 Dr. Pollak completed a Medical Source Statement concerning Plaintiff’s physical impairments.

(TR 172-80). Dr. Pollak concluded on the form that Plaintiff had not been capable of performing

sustained light work and would not be able to do so even with the option to alternate between sitting

and standing during the workday. (TR 173). 

In June 2006 Dr. Petersen released Plaintiff for work as of June 12, 2006 and Plaintiff

participated in a vocational rehabilitation plan. (TR 400-02). Dr. Petersen restricted Plaintiff to a

position within the light to medium category of work with the following limitations: Occasional

lifting from floor to knees up to 40 pounds, from knees to waist up to 35 pounds, from waist to

shoulders up to 30 pounds, from shoulders to overhead up to 25 pounds, occasional bilateral carrying

up to ten pounds for a distance of 100 feet, right and left carrying up to ten pounds with a distance

of 100 feet, occasional squatting, limited forward bending, no kneeling and providing for self-paced

walking. (TR 196, 401-02). 

Plaintiff attended nine of nine scheduled work hardening treatment sessions with Lori A.

Irvin, OTR, CEAS. (TR 181-82). Ms. Irvin concluded that Plaintiff did not meet the critical

physical demands for her prior custodian position and concluded that an appropriate position for

Plaintiff would fall within the light to medium category of work. (TR 181). Plaintiff’s functional

ability to lift and carry weight increased between initial treatment in April 2006 and interim

treatment in June 2006. (TR 182). Her grip strength weight initially increased, then decreased

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during this period. (TR 182). Plaintiff’s reported pain level ratings decreased from the first days

of treatment to the last day of interim treatment. (TR 182). 

C. Vocational Expert

The ALJ asked the Vocational Expert (VE) to consider an individual of Plaintiff’s age, workexperience and high-school equivalent education, with a residual functional capacity (“RFC”) to

perform light work with a sit/stand option limited to standing for about thirty minutes at a time and

sitting for forty-five minutes to one hour at a time, able to lift twenty pounds occasionally and ten

pounds frequently, needing to avoid repetitive reaching over or above the shoulder, but allowing

occasional reaching above the shoulder. (TR 447). The VE testified that Plaintiff could not do her

past relevant work if her RFC was for light work. (TR 447). The VE testified that such an

individual could perform unskilled sedentary occupations that are classified as “light because of the

requirement to lift up to twenty pounds on an occasional basis, but they can actually be performed

in a seated position with the option of sitting or standing.” (TR 447). The jobs included inspection,

sorting, packaging and hand assembly performed at bench or table areas. (TR 447). The jobs with

the sit/stand option number 30,000 in the state of Michigan with one-half of the jobs in Southeast

Michigan. (TR 448). The VE testified that her testimony was “somewhat inconsistent” with the

Dictionary of Occupational Titles (DOT) which does not identify whether jobs are performed seated,

standing and/or walking or in some combination of these. (TR 448). The VE based her testimony

on her work experience and awareness of the occupations to which she had testified. (TR 448). The

VE testified that the need to elevate one or both legs higher than waist height would preclude

competitive employment. (TR 448-49). The VE also testified that stooping, kneeling and crouching

are not an integral part of the job duties of any of the occupations to which she had testified. (TR

449). 

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IV. ADMINISTRATIVE LAW JUDGE’S DETERMINATION

The ALJ found that although Plaintiff met the disability insured status requirements through

December 31, 2009, had not engaged in substantial gainful activity since June 17, 2004 and suffered

from right rotator cuff tear, status post surgical times two, subsequent rotator cuff tendinosis with

subacromial bursitis and glenohumeral joint arthrosis, tear of the bilateral medial meninscus and

chondromalacia status post surgical repair and obesity, all severe impairments, she does not have

an impairment or combination of impairments that meets or equals the Listing of Impairments. (TR

22-23). The ALJ found that Plaintiff’s allegations regarding her symptoms were not totally credible

and although she could not perform her past work as a custodian, she has the ability to perform a

limited range of light work and there are a significant number of jobs in the economy which Plaintiff

can perform. (TR 23, 27-28). Therefore she is not suffering from a disability under the Social

Security Act from June 17, 2004 through the date of the ALJ’s decision. (TR 28). 

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

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

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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. Framework for Social Security Determinations

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) she was not presently engaged in substantial gainful employment; and

(2) she suffered from a severe impairment; and

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

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

See 20 C.F.R. § 404.1520(a)-(f). If Plaintiff’s impairments prevented her from doing her past work,

the Commissioner, at step five, would consider her RFC, age, education and past work experience

to determine if she could perform other work. If she could not, she would be deemed disabled. See

§ 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

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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’s credibility finding is not supported by substantial evidence,

the ALJ failed to adopt a treating physician’s opinion, the ALJ failed to present an accurate

hypothetical question to the vocational expert and the ALJ’s RFC finding is not supported by

substantial evidence. 

C. Analysis

1. Whether The ALJ’s Determination Of Plaintiff’s Credibility Is Supported By Substantial

Evidence. 

Plaintiff argues that the ALJ did not properly assess her credibility and testimony in light of

the medical records. (Docket no. 7). Specifically, Plaintiff argues that the ALJ’s determination

concerning Plaintiff’s activities of daily living are not supported by the record, the ALJ improperly

discounted her testimony that she requires frequent rest periods and must elevate her legs due to pain

and swelling and that the ALJ’s statements regarding care that Plaintiff provided for her ailing

husband are not supported by substantial evidence. (Docket no. 7). 

 “[A]n ALJ’s findings based on the credibility of the applicant are to be accorded great

weight and deference, particularly since an ALJ is charged with the duty of observing a witness’s

demeanor and credibility.” Walters, 127 F.3d at 531. Credibility assessments are not insulated from

judicial review. Despite deference due, such a determination must nevertheless be supported by

substantial evidence. Id. An ALJ’s credibility determination must contain “specific reasons . . .

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supported by the evidence in the case record, and must be sufficiently specific to make clear to the

individual and to any subsequent reviewers the weight the adjudicator gave to the individual's

statements and the reasons for that weight.” SSR 96-7p. “It is not enough to make a conclusory

statement that ‘the individual’s allegations have been considered’ or that ‘the allegations are (or are

not) credible.’” Id. “The adjudicator may find all, only some, or none of an individual’s allegations

to be credible” and may also find the statements credible to a certain degree. See id.

Furthermore, to the extent that the ALJ found that Plaintiff’s statements are not substantiated

by the objective medical evidence in the record, the Regulations explicitly provide that “we will not

reject your statements about the intensity and persistence of your pain or other symptoms or about

the effect your symptoms have on your ability to work . . . solely because the available objective

medical evidence does not substantiate your statements.” 20 C.F.R. § 404.1529(c)(2). In addition

to objective medical evidence, the ALJ considered all the evidence of record in making his

credibility determination. See 20 C.F.R. § 404.1529(c)(3); see also Felisky v. Bowen, 35 F.3d 1027,

1039-40 (6th Cir. 1994). 

In making his credibility determination the ALJ stated that Plaintiff’s statements regarding

the intensity, persistence and limiting effects of her symptoms was not credible. (TR 23). The ALJ

pointed out that the medical evidence shows that Plaintiff’s knee pain and swelling responded to

periodic Synvisc injections and her swelling and edema responded well to Lasix. (TR 25, 285-88,

302-03). In December 2006 Dr. Pollak advised Plaintiff to treated “any swelling or warmth that may

develop in the knee from inflammation” with a nonsteroidal anti-inflammatory medication. (TR

286). In June 2006 Plaintiff presented with no significant warmth or effusion of the knees and in

October 2006 Dr. Pollak reported that Plaintiff presented with a “little” swelling and small effusion.

(TR 286, 288). Dr. Pollak repeatedly noted that he wanted to hold off as long as possible on a total

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knee arthroplasty. (TR 26, 286). On at least one occasion, Plaintiff opted to treat her knees with

conservative measures, for example, ice and oral medication instead of aspiration and injection. (TR

290). The ALJ correctly concluded that the record does not show a medical necessity for Plaintiff

elevating her legs. 

The ALJ noted that in February 2005 Plaintiff made progress in physical therapy, but had

less than full range of motion in her knee. (TR 305). She also progressed in her work conditioning

program treatment in functional lifting and carrying, although she continued to reported bilateral

knee pain with squatting and carrying. (TR 181). Plaintiff’s treatment was interrupted on only one

occasion with a need to elevate her feet due to edema. (TR 181). She was otherwise able to average

four hours per day of work program treatment. (TR 181). 

Plaintiff argues that the ALJ’s statements regarding her ability to perform activities of daily

living are not supported by substantial evidence and that she required frequent rest periods and

needed to elevate her legs. As the ALJ correctly pointed out, Plaintiff reported being independent

in basic personal care, and was able to perform some household chores including laundry and

ironing. (TR 72). The ALJ also pointed out that Plaintiff was unable to complete vacuuming,

grocery shopping and mopping. (TR 25). The ALJ pointed out that Plaintiff regularly attends

church, which is supported by her own testimony. (TR 74, 442). Plaintiff continues to drive. (TR

73). The Court finds that the ALJ’s statements with respect to Plaintiff activities of daily living is

supported by substantial evidence. 

The Court also finds, despite Plaintiff’s allegations to the contrary, that the ALJ did not

speculate about the care she provided to her ailing husband. The ALJ stated that Plaintiff provided

primary care to her ailing husband, and concluded that the tasks involved were “light at best

considering the claimant’s injury to her finger in an attempt to move her husband in bed.” (TR 27).

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This statement is directly supported by the record. Plaintiff sought treatment for her injured finger

in October and December 2007 and Dr. Pollak noted that Plaintiff had reported injuring the finger

when attempting to move her husband. (TR 373, 391). “Light” work is defined as work involving

lifting no more than twenty pounds at a time. 20 C.F.R. § 404.1567(b). The ALJ’s assignment of

“light” exertion to this task is conservative and supported by the record. The Court also notes that

the ALJ did not rely solely on Plaintiff’s activities of daily living and care of her ailing husband to

find that her statements regarding her symptoms were not fully credible, but mentioned them as only

one of several areas which support a finding that Plaintiff’s statements are not fully credible. Even

if this Court were to find that the ALJ’s findings regarding Plaintiff’s activities of daily living and

care of her husband were not supported by substantial evidence, the ALJ has relied on other

substantial evidence of record in making his credibility determination. Based upon the foregoing,

the Court concludes that substantial evidence supports the ALJ’s credibility assessment.

2. Whether The ALJ Assigned Proper Weight To The Treating Physician’s Opinion

Plaintiff argues that the ALJ erred in failing to adopt Dr. Pollak’s opinions. Despite

Plaintiff’s argument that Dr. Pollak’s restrictions set forth in the Medical Source Statement are

“entitled to complete deference,” 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. Apfel, 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. Pollak’s conclusion that

Plaintiff is not capable of performing sustained work. (TR 172-73). 

It is well settled, however, 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

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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.

If an ALJ rejects a treating physician’s opinion, he must “give good reasons” for doing so

in his written opinion. See 20 C.F.R. 404.1527(d)(2); see also SSR 96-5p and 96-2p. Furthermore,

the Sixth Circuit has noted that the ALJ must provide good reasons for the weight given a treating

source’s opinion. Wilson v. Comm’r of Social Sec’ty, 378 F.3d 541, 544 (6th Cir. 2004). The

reasons must be “sufficiently specific to make clear to any subsequent reviewers the weight the

adjudicator gave to the treating source’s medical opinion and the reasons for that weight.” Id. (citing

SSR 96-2p, 1996 WL 374188, at *5).

Plaintiff specifically argues that the ALJ’s RFC is inconsistent with Dr. Pollak’s medical

documentation and Medical Source Statement dated May 16, 2006. (TR 172-80). Plaintiff argues

that the ALJ ignored Dr. Pollak’s opinion about the severity of her bilateral knee condition and his

statement that Plaintiff “may soon require total knee arthroplasty.” (TR 180).

The ALJ fully explained why he did not give controlling weight to Dr. Pollak’s statements

including the Medical Source Statement. (TR 26-27). The ALJ pointed out where Dr. Pollak’s

opinions were inconsistent with substantial evidence in the record. He showed that Dr. Pollak’s

May 2006 opinion reducing Plaintiff to less than sedentary work was inconsistent with his prior

opinions in July 2005 which stated that she could return to work after she recovered from her knee

surgery but was limited to lifting 20 pounds on the right, or forty pounds bilaterally and with likely

permanent restrictions from over-the-shoulder lifting. (TR 27, 295-96). The evidence also showed

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that Plaintiff made improvements in physical therapy and vocational rehabilitation and had

improvements in range of motion of her shoulder. (TR 399). The ALJ pointed out that the May

2006 opinion was inconsistent with evidence from the same period in which Dr. Petersen, also a

physician with a history of treating Plaintiff, released Plaintiff for participation in a vocational

rehabilitation program, assigned restrictions between the light and medium range of exertion, as set

forth in detail above, and the actual records of the vocational rehabilitation program supported less

restrictive exertional limitations than those set forth by Dr. Pollak. (TR 181-82, 400-02). 

With respect to Dr. Pollak’s statement that Plaintiff “may soon require total knee

arthroplasty,” the record shows that Dr. Pollak continued treatment with the intent to hold off on the

total knee arthroplasty as long as possible. (TR 286). The ALJ fully explained and gave good

reasons for the weight he assigned to Dr. Pollak’s opinion. 

3. Whether The ALJ’s RFC Is Supported By Substantial Evidence

The ALJ found that Plaintiff has the RFC to perform light work including lifting and carrying

20 pounds occasionally and ten pounds frequently, standing and/or walking six hours of an eighthour day, sitting six hours of an eight-hour day, allowing a sit/stand option and avoiding repetitive

above-the-shoulder reaching. (TR 23). This RFC is equally or more restrictive than the exertional

limitations set forth by Dr. Petersen or the agency medical consultant. (TR 125, 196). Even the

twenty pound restriction is supported by Dr. Pollak’s statement that Plaintiff can lift twenty pounds

with each arm. (TR 295). The ALJ addressed Plaintiff’s limitation from over the shoulder reaching

and assigned a sit/stand option consistent with Plaintiff’s knee impairments. (TR 295). The ALJ’s

RFC is supported by substantial evidence in the record. 

4. Whether The ALJ Presented An Accurate Hypothetical Question To The Vocational

Expert

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Finally, Plaintiff argues that the hypothetical question to the VE was inaccurate. In a

hypothetical question posed to the VE, an ALJ is required to incorporate only those limitations

which he finds credible and supported by the record and the ALJ did so. See Casey v. Sec’y of

Health and Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993). The ALJ presented all of the

limitations of the RFC in his hypothetical question to the VE and the VE testified that such an

individual would not be capable of performing Plaintiff’s prior work, but that there are jobs available

for a person with these limitations and cited the available jobs. (TR 447-48). The ALJ’s decision

that Plaintiff retained the RFC for a restricted range of light work is supported by substantial

evidence and the ALJ properly relied on the VE’s testimony to find that there are significant number

of jobs available which Plaintiff can perform.

VI. CONCLUSION

The Commissioner’s decision is supported by substantial evidence, was within the range of

discretion allowed by law and there is insufficient evidence for the undersigned to find otherwise.

Accordingly, 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 fourteen (14) 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 a party might have to this Report and

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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 fourteen (14) 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: January 11, 2010 s/ Mona K. Majzoub 

MONA K. MAJZOUB

UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE

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

of Record on this date.

Dated: January 11, 2010 s/ Lisa C. Bartlett 

Case Manager

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