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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

THOMAS G. STREET,

Plaintiff,

v.

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

Case No. 08-14201

DISTRICT JUDGE

ARTHUR J. TARNOW

MAGISTRATE JUDGE 

CHARLES E. BINDER

______________________________/

AMENDED ORDER

ADOPTING THE REPORT AND RECOMMENDATION [18],

GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [15],

DENYING PLAINTIFF’S AMENDED MOTION FOR SUMMARY JUDGMENT [12],

and 

DISMISSING THE CASE

On October 1, 2008, Thomas Street (“Plaintiff”) filed suit seeking judicial review of a final

decision by which the Commissioner of Social Security (“Defendant”) disallowed Plaintiff’s claims

for Social Security benefits. In denying Plaintiff’s claims, the Defendant Commissioner considered

chronic obstructive pulmonary disease (“COPD”) and affective disorders as possible bases of

disability. See Tr. at 30, 45-49. Plaintiff’s alleged onset date was February 1, 2002.

Pursuant to Local Rule 72.1(b)(3), “all cases seeking review of a denial of social security

benefits [are] assigned both to a district judge and a magistrate judge.” On March 2, 2010, the

Magistrate issued a Report and Recommendation (“R&R”) [18] recommending that the Court deny

Plaintiff’s Motion for Summary Judgment [12] and grant Defendant’s Motion for Summary

Judgment [15]. On March 16, 2010, Plaintiff filed Objections [19] to the Report and

Recommendation. Defendant filed a Response [20] to Plaintiff’s Objections on March 30, 2010.
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Those filings are now before the Court.

I. STANDARD OF REVIEW

Judicial review of facts found by the Administrative Law Judge (“ALJ”) is limited to an

evaluation of whether those findings are supported by substantial evidence and whether the proper

legal standards were applied. Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997). The Court must

examine the administrative record as a whole. Cutlip v. Sec’y of Health & Human Servs., 25 F.3d

284, 286 (6th Cir. 1994). However, the Court does not review the evidence de novo, make

credibility determinations, or weigh the evidence. Brainard v. Sec’y of Health & Human Servs., 889

F.2d 679, 681 (6th Cir. 1989). The Court must affirm an ALJ’s decision if the findings and

inferences reasonably drawn from the record are supported by substantial evidence, even if the

record could support a different conclusion. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001).

Under 28 U.S.C. § 636(b)(1), a magistrate judge's orders shall not be disturbed unless “found

to be clearly erroneous or contrary to law.” United States v. Curtis, 237 F.3d 598, 603 (6th Cir.

2001). The “clearly erroneous” standard requires the Court to affirm the Magistrate's decision

unless, after reviewing the entirety of the evidence, it “is left with the definite and firm conviction

that a mistake has been committed.” Sandles v. U.S. Marshal's Service, 2007 WL 4374077, 1 (E.D.

Mich. 2007) (citing United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).

This Court reviews de novo any objections to a Magistrate’s Report and Recommendation.

See 28 U.S.C. § 636(b)(1). Here, Plaintiff has filed Objections, and the assignments of error are

considered below.

II. PLAINTIFF’S OBJECTIONS
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In his Objections [19] to the Magistrate’s R&R, Plaintiff raises several issues for the Court’s

de novo review. Specifically, Plaintiff contends that: (1) the Magistrate erroneously found the ALJ’s

hypothetical was to be consistent with the record evidence regarding Plaintiff’s pulmonary

limitations; (2) the ALJ erred in finding that Plaintiff failed to establish that certain symptoms

constituted severe impairments for twelve continuous months; (3) the Magistrate did not address the

ALJ’s disregard of evidence that Plaintiff suffers from mental disorders; (4) the ALJ’s decision is

superficial and fails to engage all relevant evidence; (5) the Magistrate did not address the ALJ’s

failure to make a proper determination regarding Plaintiff’s credibility; and (6) the Magistrate

erroneously held that the ALJ reasonably inquired as to any conflicts between the testimony of the

vocational expert (“VE”) and the Dictionary of Occupations (“DOT”).

In Response [20], Defendant argues that Plaintiff’s objections simply restate the same

arguments presented to the Magistrate at the summary judgment stage. Suggesting that Plaintiff

“simply desires a second bite at the apple,” Defendant urges the Court to adopt the R&R.

I. Sufficiency of the Hypothetical

Plaintiff objects that the Magistrate erred in finding that the ALJ posed an accurate and

sufficient hypothetical to the Vocational Expert. See Obj. at 1. Specifically, Plaintiff objects that

the ALJ “ignore[d] Plaintiff’s COPD.” Id.

Sixth Circuit case law has upheld disability determinations in which an ALJ has “translated

[the plaintiff]’s condition into . . . concrete restrictions . . . and duly incorporated them into his

hypothetical to the vocational expert.” See Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001). “A

hypothetical question that an ALJ poses to a [vocational expert] must only include those limitations

that are supported by the record.” Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 780 (6th
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Cir. 1987).

The Court observes that the ALJ did not “ignor[e] Plaintiff’s COPD,” as Plaintiff contends.

See Obj. at 1. Rather, the ALJ explicitly acknowledged Plaintiff’s COPD in the written decision,

but rejected it as a basis for a finding of disability. See Tr. at 27 (“The claimant also has a severe

impairment of COPD, which causes him to experience shortness of breath; however, this condition

is not work preclusive pursuant to the evidence of record.”). Defendant collects the record evidence

that could reasonably support the ALJ’s conclusion. See Def.’s Mot. S.J. at 13 (citing Sixth Circuit

authority for the proposition that “Plaintiff’s continued smoking [is] inconsistent with his claims of

debilitating pulmonary impairment”; also citing record evidence that Plaintiff refused smoking

cessation classes and declined medication to help him quit, that pulmonary test results were

inconsistent, that “Plaintiff’s lungs were consistently clear upon examination with normal breath

sounds and no wheezes,” and that Plaintiff’s symptoms were responsive on those occasions when

Plaintiff consented to treatment). See id. at 13-14.

The Court finds that substantial evidence supported the ALJ’s decision to exclude Plaintiff’s

COPD from the hypothetical. The Court further finds that, in all relevant respects, the ALJ

“translated [the plaintiff]’s condition into . . . concrete restrictions . . . and duly incorporated them

into his hypothetical to the vocational expert.” See Smith, 307 F.3d at 379.

Therefore, Plaintiff’s Objection is DENIED on this issue.

II. Continuity of Impairments

Plaintiff objects that the ALJ made a “contention that [certain] impairments did not last 12

months.” See Obj. at 1.

Plaintiff does not direct the Court to this “contention,” and no such contention is immediately
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evident in the ALJ’s written decision. Furthermore, the ALJ explicitly incorporated some discussion

of at least one of the symptoms (headaches) that Plaintiff objects the ALJ has ignored. See Tr. at

27.

As the Magistrate advised the parties, “[f]ailure to file specific objections constitutes a

waiver of any further right of appeal.” See R&R at 13. The Court finds that Plaintiff’s objection

regarding the continuity of certain impairments falls short of the specificity requirement of Fed. R.

Civ. P. 72(b)(2). Therefore, Plaintiff’s Objection is DENIED on this issue.

III. ALJ’s Treatment of Evidence of Plaintiff’s Mental Disorders

Plaintiff objects that “the ALJ completely ignores and the Magistrate fails to address the fact

that Plaintiff suffers from mental disorders.” See Pl.’s Obj. at 2. Plaintiff cites record evidence

demonstrating that Plaintiff has some history of depression and of taking anti-depressant

medications. Id. at 2-3. The Court finds that Plaintiff is correct in noting that the ALJ’s written

decision failed to include any discussion of Plaintiff’s psychological health (although the ALJ did

discuss a finding that “[n]eurologically, the claimant was reported as testing within normal limits”).

See Tr. at 27. It appears that there existed record evidence that could have triggered the ALJ’s

application of the provisions of 20 C.F.R. 404.1520a regarding the “evaluation of mental

impairments.” This Court would have urged that some discussion of Plaintiff’s mental health history

be included in the ALJ’s written decision. 

Plaintiff is incorrect, however, in asserting that the Magistrate similarly failed to

acknowledge Plaintiff’s potential mental limitations. Indeed, the Magistrate’s discussion of the

administrative record included review of the findings that Plaintiff “has no problems paying

attention, following directions, getting along with others, or handling stress.” See R&R at 11. (citing
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Tr. at 68-75). The administrative record includes a contact report noting that although Plaintiff has

previously been diagnosed with bipolar disorder, he “did not claim this as one of his problems” in

his application for disability benefits. See Tr. at 68. Similarly, the original “Notice of Disapproved

Claim” that Plaintiff received in his case confirmed that Plaintiff only “said [he was] disabled

because of VERTEBRA PROBLEM, NECK AND BACK, RESPIRATORY PROBLEMS.” See

Tr. at 45. That letter acknowledged mental health evidence, despite the fact that it apparently fell

outside of Plaintiff’s stated claim for disability. See id. (“The medical evidence shows that you may

be depressed at times. You are still able to remember, understand and communicate with others.

You are able to carry on with your regular activities. Your condition does not prevent you from

doing work which does not require heavy lifting.”).

After conducting a de novo review of the administrative record, the Court concludes that,

despite the existence of some evidence relevant to Plaintiff’s mental health history, such evidence

was not the basis of Plaintiff’s claim for disability. Therefore, the ALJ was justified in excluding

the mental health evidence from the overall disability analysis.

Accordingly, Plaintiff’s objection on this point is DENIED.

IV. Brevity of the ALJ’s Decision

Plaintiff objects that “the ALJ’s decision is incomplete and fails to give the proper analysis

to Plaintiff’s impairments,” and that it “is only a few paragraphs long, glossing over the evidence

generally, stating arbitrarily that it supports the ALJ’s analysis and determination.” See Pl.’s Obj.

at 3.

This objection, itself, is too general to direct the Court in a meaningful judicial review. The

Court finds that Plaintiff’s objection regarding the brevity of the ALJ’s decision falls short of the
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specificity requirement of Fed. R. Civ. P. 72(b)(2). Therefore, Plaintiff’s Objection is DENIED on

this issue. 

V. ALJ’s Credibility Determination

Plaintiff objects that the Magistrate did not address the ALJ’s failure to make a proper

determination regarding Plaintiff’s credibility. See Obj. at 4-5. The Court agrees that the R&R does

not specifically address the ALJ’s finding that “the claimant’s medically determinable impairments

could reasonably be expected to produce the alleged symptoms, but that the claimant’s statements

concerning the intensity, persistence and limiting effects of these symptoms are not entirely

credible.” See Tr. at 27.

Defendant concedes, and the Court agrees, that “the ALJ could have articulated his

credibility analysis in greater detail.” See Def.’s Mot. S.J. at 12. However, the written decision

indicates the ALJ’s consideration of “the intensity, persistence, and limiting effects of the claimant’s

symptoms to determine the extent to which they limit the claimant’s ability to do basic work

activities.” See Tr. at 26. The ALJ recites the correct legal standard, acknowledging that he is

required to “make a finding on the credibility of the statements based on a consideration of the entire

case record.” Id. Contrary to Plaintiff’s suggestion, the ALJ also cites the seven factors to be

considered, in addition to objective medical evidence, when assessing a claimant’s credibility. See

id. (citing 20 C.F.R. 416.929( c )); Pl.’s Mot. S.J. at 11. The Court observes that the ALJ’s

discussion directly addresses: the first listed factor (“claimant’s daily activities”); the second factor

(“location, duration, frequency, and intensity of the claimant’s pain or other symptoms”); the fourth

factor (“type, dosage [and] effectiveness” of claimant’s medications); and the fifth factor

(“treatment, other than medication,” that Plaintiff has received). See Tr. at 26-27. The ALJ’s
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discussion does not address the impact of any potential side effects of Plaintiff’s medication, as

provided in the fourth factor. See id.; see also Pl.’s Obj. at 5 (claiming that “side effects from

[Plaintiff’s] other medications [include] headaches and ‘goofy’ feeling”). Nor does it explicitly

address factors that may aggravate Plaintiff’s symptoms, measures other than treatment that Plaintiff

may use to alleviate pain, or “other” factors, as provided in the third, sixth, and seventh criteria. See

Tr. at 26-27. 

The ALJ’s written decision specifically incorporated at least some of Plaintiff’s subjective

testimony regarding his “constant pain,” his “decreased range of motion,” the “progressiv[e]

worsen[ing]” of his condition, his inability to turn his head, and his continuing use of prescription

medications. See id. at 27. As Plaintiff notes in his Objections [19], the ALJ’s decision did not

specifically incorporate other parts of Plaintiff’s subjective testimony. See Pl.’s Obj. at 5 (“Plaintiff

does not do household chores often, and requires help from his wife.”) However, the ALJ’s decision

also did not specifically incorporate other record evidence that would tend to weigh against

Plaintiff’s credibility. See R&R at 8 (noting that the March, 2005, assessment of Plaintiff’s Residual

Functional Capacity found him “only ‘partially credible’”; noting also that an examining physician

retained by Disability Determination Services “noted that Plaintiff ‘tended to give diagnoses rather

than symptoms’ and that Plaintiff’s ‘symptoms and lack of joint motion raised a serious question .

. . as to his level of effort’”).

Had the written report provided a more explicit statement of the ALJ’s reasons for arriving

at his ultimate credibility determination, this Court would have a more comfortable basis for judicial

review. Nevertheless, considering de novo the administrative record as a whole, the Court finds that

the ALJ applied the correct legal standard and that he clearly considered, but rejected, Plaintiff’s
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subjective testimony that would weigh in favor of a finding of disability. See Cutlip, 25 F.3d at 286.

Further, “[s]ince the ALJ has the opportunity to observe the demeanor of a witness, his conclusions

with respect to credibility should not be discarded lightly and should be accorded deference.” See

Casey v. Sec’y of Health and Human Servs., 987 F.2d 1230, 1234 (6th Cir. 1993). The Court

concludes that the ALJ’s credibility findings were supported by substantial evidence, and should not

be overturned on review. See Key, 109 F.3d at 273.

Therefore, Plaintiff’s Objection on this issue is DENIED.

VI. ALJ’s Inquiry Into Conflicts Between Vocational Expert Testimony and the DOT

Finally, Plaintiff objects that the Magistrate erred by finding that the ALJ reasonably

inquired as to any conflicts between the vocational expert testimony and the DOT. See Obj. at 6.

Specifically, Plaintiff argues that the Magistrate’s affirmation of the ALJ’s inquiry “ignores SSR

004p’s requirement that the ALJ ‘verify’ the VE’s testimony.” Id.

Plaintiff’s objection does not acknowledge the Sixth Circuit authority, cited by the

Magistrate Judge, holding that “[i]n this Circuit, Social Security Ruling 00-4p is satisfied . . . by the

ALJ simply asking the VE if his testimony is consistent with the DOT.” See R&R at 12 (citing

Martin v. Comm’r of Soc. Security, 170 Fed. App’x 369, 375-76 (6th Cir. 2006)). Plaintiff also fails

to engage the Magistrate’s further collection of extensive authority for the proposition that “the ALJ

was not under any obligation to inquire any further into the accuracy of the VE’s testimony.” See

id. (collecting cases).

In the absence of any citation by Plaintiff of legal authority to the contrary, the Court finds

that the Magistrate’s conclusion is neither “clearly erroneous [n]or contrary to law.” See Curtis, 237

F.3d at 603. Thus, the Court will not disturb the Magistrate’s recommendation regarding the ALJ’s
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failure to inquire as to any conflicts between the vocational expert testimony and the DOT, and

Plaintiff’s Objection is DENIED as to this issue.

III. CONCLUSION

The Court having reviewed the administrative record, the Magistrate’s Report and

Recommendation, and the parties’ pleadings in this case, and being fully advised in the premises,

IT IS HEREBY ORDERED that the Report and Recommendation [18] of the Magistrate

Judge is hereby ADOPTED. Plaintiff’s Objections [19] thereto are DENIED.

Accordingly, Defendant’s Motion for Summary Judgment [15] is GRANTED, and

Plaintiff’s Motion for Summary Judgment [12] is DENIED.

The case is hereby DISMISSED.

SO ORDERED.

S/ARTHUR J. TARNOW 

Arthur J. Tarnow

United States District Judge

Dated: March 31, 2010

I hereby certify that a copy of the foregoing document was served upon counsel of record on

March 31, 2010, by electronic and/or ordinary mail.

S/LISA M. WARE 

Case Manager