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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

THOMAS A. KRAMER,

Plaintiff, Case No. 08-15182

vs. HONORABLE DENISE PAGE HOOD

COMMISSIONER OF SOCIAL

SECURITY, 

Defendant.

_______________________________________/

ORDER ACCEPTING REPORT AND RECOMMENDATION

I. Introduction

This matter is before the Court on Magistrate Judge Mark A. Randon’s Report and

Recommendation, dated January 14, 2010 [Docket No. 19]. On September 3, 2009, Plaintiff

filed a Motion for Remand pursuant to Sentence Four [Docket No. 14]. Defendant filed a

Motion for Summary Judgment on November 4, 2009 [Docket No. 17]. Plaintiff filed a

Response to the Motion for Summary Judgment on November 13, 2009 [Docket No. 18]. The

Magistrate Judge issued a Report and Recommendation denying Plaintiff’s Motion to Remand

and granting Defendant’s Motion for Summary Judgment on January 4, 2010. Plaintiff filed

objections to the Magistrate Judge’s Report and Recommendation on January 28, 2010 [Docket

No. 20]. Defendant filed its response to Plaintiff’s objections on February 11, 2010 [Docket No.

21].
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II. Standard of Review

A. Report and Recommendation

Judicial review of the Commissioner’s decision is limited in scope to determining

whether the findings of fact made by the Commissioner are supported by substantial evidence,

and deciding whether the Commissioner employed the proper legal criteria in reaching his or her

conclusion. Garner v. Heckler, 745 F. 2d 383 (6th Cir. 1984). The credibility findings of an

administrative law judge (“ALJ”) must not be discarded lightly and should be accorded great

deference. Hardaway v. Secretary of Health and Human Services, 823 F. 2d 922, 928 (6th Cir.

1987). A district court’s review of an ALJ’s decision is not de novo review. The district court

may not resolve conflicts in the evidence nor decide questions of credibility. Garner, 745 F. 2d

at 397. The decision of the Commissioner must be upheld if supported by substantial evidence,

even if the record might support a contrary decision. Smith v. Secretary of HHS, 893 F. 2d 106,

108 (6th Cir. 1989). An administrative decision must be affirmed if supported by substantial

evidence, even if the Court might arrive at a different conclusion. Mullen v. Bowen, 800 F. 2d

535, 545 (6th Cir. 1986) (quoting Baker v. Heckler, 730 F. 2d 1147, 1150 (8th Cir. 1984)). 

To preserve the right to appeal the Magistrate Judge’s recommendation, Plaintiff was

obligated to file objections to the Report and Recommendation within ten days of service of

copy, as provided in 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 to an appeal. Thomas v. Arn, 474 U.S. 140

(1985); Howard v. Secretary of Health and Human Servs., 932 F.2d 505 (6th Cir. 1991); United

States v. Walters, 638 F.2d 947 (6th Cir. 1981). Plaintiff filed timely objections to the

Magistrate Judge’s recommendation on January 28, 2010.
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B. Summary Judgment

Under Fed. R. Civ. P. 56, summary judgment is to be entered if the moving party

demonstrates there is no genuine issue as to any material fact. The Supreme Court has

interpreted this to mean that summary judgment should be entered if the evidence is such that a

reasonable jury could find only for the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249 (1986). The moving party has “the burden of showing the absence of a genuine issue

as to any material fact.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); see also Lenz v.

Erdmann Corp., 773 F.2d 62 (6th Cir. 1985). In resolving a summary judgment motion, the

Court must view the evidence in the light most favorable to the non-moving party. See Duchon

v. Cajon Co., 791 F.2d 43, 46 (6th Cir. 1986); Bouldis v. United States Suzuki Motor Corp., 711

F.2d 1319 (6th Cir. 1983). 

 To create a genuine issue of material fact, the nonmovant must do more than present 

“some evidence” of a disputed fact. “If the [nonmovant’s] evidence is merely colorable, or is not

significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-250

(citations omitted). Accordingly, a nonmovant “must produce evidence that would be sufficient

to require submission to the jury of the dispute over the fact.” Mathieu v. Chun, 828 F. Supp.

495, 497 (E.D. Mich. 1993) (citations omitted).

III. Applicable Law & Analysis

Plaintiff raises two objections to the Magistrate Judge’s Report and Recommendation.

First, Plaintiff objects to the Magistrate Judge’s assessment that Plaintiff failed to meet or equal

Listing 12.05(C) Mental Retardation. Plaintiff argues that his “IQ score is ‘close enough’ and

that he should qualify for Listing 12.05(C) given that he has other mental limitations.” (R & R at
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12). Plaintiff contends that his score is “much more than a ‘margin of error’ or ‘close enough’”

case because Plaintiff was only one point above the qualifying range. (Plaintiff’s Reply to the

R& R at 2). The Magistrate Judge acknowledged that other courts have rejected the “margin of

error” argument with respect to Listing 12.05( C), even when an individual’s IQ falls outside of

the qualifying range by one point. The Magistrate Judge also states that there was substantial

evidence on the record that “Plaintiff’s IQ was above the range set forth in Listing 12.05(C).” (R

& R at 14). This Court agrees with the Magistrate Judge’s assessment.

Second, Plaintiff objects to the Magistrate Judge’s assessment that the ALJ did not err in

relying on the Vocational Expert’s (VE) testimony about jobs that Plaintiff could perform. 

Plaintiff argues that the VE erroneously relied on jobs listed in the Dictionary of Occupational

Titles (DOT), failing to take into consideration that Plaintiff is functionally illiterate. The

Magistrate Judge concluded that the VE’s testimony did not result in unresolved inconsistencies

with the DOT, because the VE’s testimony expressly addressed and accounted for Plaintiff’s

literacy issues. This Court agrees with the Magistrate Judge’s assessment. 

Accordingly, 

IT IS ORDERED that Magistrate Judge Mark A. Randon’s Report and Recommendation

[Docket No. 19, filed January 14, 2010] is ACCEPTED and ADOPTED as this Court’s

findings and conclusions of law. 

IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment [Docket

No. 17, filed on November 4, 2009] is GRANTED.
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IT IS FURTHER ORDERED that Plaintiff’s Motion for Remand Pursuant to Sentence

Four [Docket No. 14, filed on September 3, 2009 ] is DENIED. 

IT IS FURTHER ORDERED that this cause of action is DISMISSED with prejudice. 

S/Denise Page Hood 

Denise Page Hood

United States District Judge

Dated: March 18, 2010

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

on March 18, 2010, by electronic and/or ordinary mail.

S/William F. Lewis 

Case Manager