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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DAVID M. HUEBLER,

Plaintiff, CIVIL ACTION NO. 09-11817

v. DISTRICT JUDGE VICTORIA A. ROBERTS

COMMISSIONER OF MAGISTRATE JUDGE MARK A. RANDON

SOCIAL SECURITY,

Defendant.

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REPORT AND RECOMMENDATION ON PLAINTIFF’S MOTION

TO REMAND AND DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I. PROCEDURAL HISTORY

A. Proceedings in this Court

On May 12, 2009, David M. Huebler (“Plaintiff”) filed the instant suit seeking judicial

review of the Commissioner’s decision disallowing benefits (Dkt. 1). Pursuant to 28 U.S.C. §

636(b)(1)(B) and Local Rule 72.1(b)(3), this matter was referred to the undersigned for the

purpose of reviewing the Commissioner’s decision denying Plaintiff’s claim for a period of

disability insurance benefits (Dkt. 3, 10). This matter is currently before the Court on Plaintiff’s

motion to remand (Dkt. 16) and Defendant’s motion for summary judgment (Dkt. 21).

B. Administrative Proceedings

Plaintiff filed the instant claims on March 13, 2006, alleging that he became unable to

work on September 25, 2005 (Tr. 8, 108). The claim was initially disapproved by the

Commissioner on May 26, 2006 (Tr. 8, 57). Plaintiff requested a hearing and on July 23, 2008,
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 In this circuit, where the Appeals Council considers additional evidence but denies a request to review the

ALJ’s decision, since it has been held that the record is closed at the administrative law judge level, those “AC”

exhibits submitted to the Appeals Council are not part of the record for purposes of judicial review. See Cotton v.

Sullivan, 2 F.3d 692, 696 (6th Cir. 1993); Cline v. Comm’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996). Therefore,

since district court review of the administrative record is limited to the ALJ’s decision, which is the final decision of

the Commissioner, the court can consider only that evidence presented to the ALJ. In other words, Appeals Council

evidence may not be considered for the purpose of substantial evidence review.

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Plaintiff appeared with counsel before Administrative Law Judge (ALJ) E. James Gildea, who

considered the case de novo. In a decision dated December 1, 2008, the ALJ found that Plaintiff

was not disabled (Tr. 8-15). Plaintiff requested a review of this decision on December 15, 2008

(Tr. 103). The ALJ’s decision became the final decision of the Commissioner when, after the

review of additional exhibits1

 (AC-1/13B, Tr. 4, 102-7), the Appeals Council, on April 15, 2009,

denied Plaintiff’s request for review (Tr. 1); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 543-

44 (6th Cir. 2004). 

In light of the entire record in this case, I find that substantial evidence does not support

the Commissioner’s determination that Plaintiff is not disabled. Accordingly, it is

RECOMMENDED that Plaintiff’s motion for remand be GRANTED, Defendant’s motion for

summary judgment be DENIED, and that the findings of the Commissioner be REVERSED. 

II. STATEMENT OF FACTS

A. ALJ Findings

Plaintiff was 49 years of age at the time of the most recent administrative hearing. 

Plaintiff’s relevant work history included work as a sales manager and co-owner of a cleaning

supply business (Tr. 15). The ALJ applied the five-step disability analysis to Plaintiff’s claim

and found at step one that Plaintiff had not engaged in substantial gainful activity since

September 25, 2005 (Tr. 10). At step two, the ALJ found that Plaintiff had the following
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“severe” impairments: hepatic liver disease with possible cirrhosis and pancreatitis. Id. At step

three, the ALJ found no evidence that Plaintiff’s combination of impairments met or equaled one

of the listings in the regulations. Id. Between steps three and four, the ALJ found that Plaintiff

had the Residual Functional Capacity (RFC) to perform “light work with some additional

limitations. He cannot climb ladders, ropes or scaffolds but can occasionally climb ramps and

stairs and occasionally balance, stoop, kneel, crouch and crawl. He should not be exposed to

concentrated levels of hazard” (Tr. 13). At step four, the ALJ found that Plaintiff could perform

his past work given his RFC. Id. Thus, the ALJ denied Plaintiff’s claim at step four, and did not

proceed to step five.

B. Administrative Record

1. Plaintiff’s Testimony and Statements

Plaintiff complains of muscle pain in his upper and lower extremities, as well as muscle

weakness (Tr. 201) and alleges that the pain started in 2003 (Tr. 205, 415). He states that he has

pain in his arms and “very badly” in his hands, and that the pain in his legs runs through all his

muscles from his feet to his pelvic area (Tr. 27). The last date Plaintiff was employed was

January 2004, when he had to quit working because of the pain he was experiencing (Tr. 127). 

Plaintiff has stated that he would like to work if he could make it through the day without having

pain (Tr. 205). 

At the hearing with the ALJ, Plaintiff stated that his pain was constant and on a scale

from one to ten, maintains a level of five. He went on to say: “when I start to do any type of

activity like walking or using my hands, then the pain level starts to creep up very high, to the

point where I have to stop doing whatever it is I’m doing” (Tr. 26-27). According to Plaintiff,
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“at most times it is very painful to walk, sit up, and lift things” (Tr. 127) and when the pain is

very bad, he is unable to shower or shave (Tr. 139). Even with pain medication, he states he is

only able to sleep for around two hours a night as a result of the pain (Tr. 139) and that the pain

can get so bad that it keeps him from sleeping for days (Tr. 127). Plaintiff also claims that he

sometimes wakes up in the middle of the night screaming because of the pain (Tr. 205). 

Plaintiff admits to taking pain medication to help control his pain so that he can have

some range of movement and perform household chores (Tr. 25). However, when he is tired,

Plaintiff says he spends half to three-quarters a day sitting in a recliner (Tr. 34) and when he

walks farther than 400 or 500 feet, “the pain just increases until I can’t walk any further” (Tr.

35). Plaintiff also complained of getting lightheaded when he bends over to pick items off the

floor (Tr. 36).

2. Medical Evidence

The sole issue raised on appeal relates to Plaintiff’s alleged pain syndrome. Therefore,

the undersigned only finds it necessary to discuss the medical evidence relating to such

syndrome. The record contains the following evidence of Plaintiff’s pain disorder: Plaintiff’s

original treating physician, Dr. Michael Schultz, diagnosed Plaintiff with Chronic Pain

Syndrome (Tr. 173). A consulting physician, Dr. Timothy J. Laing at the University of

Michigan, diagnosed Plaintiff with Generalized Pain Disorder (Tr. 448, 455). Another

consulting physician, Dr. Syed Naqvi, reported that during Plaintiff’s October 2005

hospitalization, he experienced a “diffuse sharp abdominal pain” that was “constant [and]

nonradiating” (Tr. 325). Dr. Schultz said that after that hospitalization, Plaintiff continued to

have the same persistent complaints of muscle pain in the upper and lower extremities as well as
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some abdominal pain, muscle weakness and joint aching (Tr. 201, 423). Rheumatologist Dr.

Carlos Diola determined on three separate occasions that Plaintiff was suffering from myalgia

(muscle pain) (Tr. 408, 412, 462). Dr. Schultz also stated in June 2006 that Plaintiff

demonstrated a “generalized loss of strength and reduced capacity for any type of physical

activity” (Tr .421).

Regarding muscle weakness, Dr. Schultz found that Plaintiff’s muscles “exhibit some

mild tenderness” (Tr. 423) and that his motor examination showed “some individual muscle

group strength weakness such as grip strength of both hands” (Tr. 479). Lastly, in April 2007,

PA-C Eva Michals, filled out a Disability Parking Placard Application because of Plaintiff’s

Chronic Pain Syndrome and “leg weakness and instability” (Tr. 186).

C. Plaintiff’s Claims of Error

Plaintiff raises three issues on appeal, namely: (1) whether the Commissioner failed to

recognize all of Plaintiff’s severe impairments; (2) whether the Commissioner considered

Plaintiff’s manipulative restrictions; and (3) whether the Commissioner properly weighed the

statements of Plaintiff’s treating physicians. As to the first issue, Plaintiff argues that the ALJ

should have found at step two that Plaintiff also suffers from the severe impairment of Chronic

Pain Syndrome. In support of this argument, Plaintiff points to his diagnoses of Chronic Pain

Syndrome and Generalized Pain Disorder as well as the amount of medication he has been

prescribed. Plaintiff’s second claim of error explains that the combination of Plaintiff’s Carpal

Tunnel, Raynaud’s Phenomenon and manipulative restrictions make it impossible for Plaintiff to

perform his past relevant work as a sales manager and co-owner of a cleaning supplies business.
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Lastly, Plaintiff avers that the ALJ did not adequately discuss either Dr. Schultz’ opinion or the

six factors under 20 CFR 404.1527, which addresses evaluating opinion evidence.

III. DISCUSSION

A. Standard of Review 

In enacting the Social Security system, Congress created a two-tiered system in which the

administrative agency handles claims, and the judiciary merely reviews the agency determination

for exceeding statutory authority or for being arbitrary and capricious. See Sullivan v. Zebley,

493 U.S. 521 (1990). The administrative process itself is multifaceted in that a state agency

makes an initial determination that can be appealed first to the agency itself, then to an ALJ, and

finally to the Appeals Council. See Bowen v. Yuckert, 482 U.S. 137 (1987). If relief is not found

during this administrative review process, the claimant may file an action in federal district

court. Id.; Mullen v. Bowen, 800 F.2d 535, 537 (6th Cir. 1986).

This Court has original jurisdiction to review the Commissioner’s final administrative

decision pursuant to 42 U.S.C. § 405(g). Judicial review under this statute is limited in that the

court “must affirm the Commissioner’s conclusions absent a determination that the

Commissioner has failed to apply the correct legal standard or has made findings of fact

unsupported by substantial evidence in the record.” Longworth v. Comm’r of Soc. Sec. Admin.,

402 F.3d 591, 595 (6th Cir. 2005); Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir.

1997). In deciding whether substantial evidence supports the ALJ’s decision, “we do not try the

case de novo, resolve conflicts in evidence, or decide questions of credibility.” Bass v.

McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.

1984). “It is of course for the ALJ, and not the reviewing court, to evaluate the credibility of
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witnesses, including that of the claimant.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247

(6th Cir. 2007); Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003) (an “ALJ is not

required to accept a claimant’s subjective complaints and may...consider the credibility of a

claimant when making a determination of disability.”); Cruse v. Comm’r of Soc. Sec., 502 F.3d

532, 542 (6th Cir. 2007) (the “ALJ’s credibility determinations about the claimant are to be

given great weight, particularly since the ALJ is charged with observing the claimant’s demeanor

and credibility.”) (quotation marks omitted); Walters, 127 F.3d at 531 (“discounting credibility

to a certain degree is appropriate where an ALJ finds contradictions among medical reports,

claimant’s testimony, and other evidence.”). “However, the ALJ is not free to make credibility

determinations based solely upon an ‘intangible or intuitive notion about an individual’s

credibility.’” Rogers, 486 F.3d at 247, quoting, Soc. Sec. Rul. 96-7p, 1996 WL 374186, *4.

If supported by substantial evidence, the Commissioner’s findings of fact are conclusive. 

42 U.S.C. § 405(g). Therefore, this Court may not reverse the Commissioner’s decision merely

because it disagrees or because “there exists in the record substantial evidence to support a

different conclusion.” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006);

Mullen, 800 F.2d at 545. Substantial evidence is “more than a scintilla of evidence but less than

a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Rogers, 486 F.3d at 241; Jones, 336 F.3d at 475. “The substantial

evidence standard presupposes that there is a ‘zone of choice’ within which the Commissioner

may proceed without interference from the courts.” Felisky v. Bowen, 35 F.3d 1027, 1035 (6th

Cir. 1994) (citations omitted), citing, Mullen, 800 F.2d at 545. 
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The scope of this Court’s review is limited to an examination of the record only. See

Bass, 499 F.3d at 512-13; Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). When reviewing

the Commissioner’s factual findings for substantial evidence, a reviewing court must consider

the evidence in the record as a whole, including that evidence which might subtract from its

weight. See Wyatt v. Sec’y of Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). “Both

the court of appeals and the district court may look to any evidence in the record, regardless of

whether it has been cited by the Appeals Council.” Heston v. Comm’r of Soc. Sec., 245 F.3d

528, 535 (6th Cir. 2001). There is no requirement, however, that either the ALJ or the reviewing

court must discuss every piece of evidence in the administrative record. See Kornecky v.

Comm’r of Soc. Sec., 167 Fed. Appx. 496, 508 (6th Cir. 2006) (“[a]n ALJ can consider all the

evidence without directly addressing in his written decision every piece of evidence submitted

by a party.”) (internal citation marks omitted); see also Van Der Maas v. Comm’r of Soc. Sec.,

198 Fed.Appx. 521, 526 (6th Cir. 2006). 

B. Governing Law

The “[c]laimant bears the burden of proving his/her entitlement to benefits.” Boyes v.

Sec’y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994); accord, Bartyzel v. Comm’r

of Soc. Sec., 74 Fed.Appx. 515, 524 (6th Cir. 2003). There are several benefits programs under

the Act, including the Disability Insurance Benefits Program (“DIB”) of Title II (42 U.S.C. §§

401 et seq.) and the Supplemental Security Income Program (“SSI”) of Title XVI (42 U.S.C. §§

1381 et seq.). Title II benefits are available to qualifying wage earners who become disabled

prior to the expiration of their insured status; Title XVI benefits are available to poverty stricken

adults and children who become disabled. F. Bloch, Federal Disability Law and Practice § 1.1
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(1984). While the two programs have different eligibility requirements, “DIB and SSI are

available only for those who have a ‘disability.’” Colvin v. Barnhart, 475 F.3d 727, 730 (6th

Cir. 2007). “Disability” means:

inability to engage in any substantial gainful activity by reason of

any medically determinable physical or mental impairment which

can be expected to result in death or which has lasted or can be

expected to last for a continuous period of not less than 12 months.

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); see also, 20 C.F.R. § 416.905(a) (SSI).

The Commissioner’s regulations provide that disability is to be determined through the

application of a five-step sequential analysis:

Step One: If the claimant is currently engaged in substantial

gainful activity, benefits are denied without further analysis.

Step Two: If the claimant does not have a severe impairment or

combination of impairments, that “significantly limits...physical or

mental ability to do basic work activities,” benefits are denied

without further analysis.

Step Three: If the claimant is not performing substantial gainful

activity, has a severe impairment that is expected to last for at least

twelve months, and the severe impairment meets or equals one of

the impairments listed in the regulations, the claimant is

conclusively presumed to be disabled regardless of age, education

or work experience.

Step Four: If the claimant is able to perform his or her past

relevant work, benefits are denied without further analysis.

Step Five: Even if the claimant is unable to perform his or her past

relevant work, if other work exists in the national economy that the

claimant can perform, in view of his or her age, education, and

work experience, benefits are denied.
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Carpenter v. Comm’r of Soc. Sec., 2008 WL 4793424 (E.D. Mich. 2008), citing, 20 C.F.R. §§

404.1520, 416.920; Heston, 245 F.3d at 534. “If the Commissioner makes a dispositive finding

at any point in the five-step process, the review terminates.” Colvin, 475 F.3d at 730. 

“Through step four, the claimant bears the burden of proving the existence and severity

of limitations caused by her impairments and the fact that she is precluded from performing her

past relevant work.” Jones, 336 F.3d at 474, cited with approval in Cruse, 502 F.3d at 540. If

the analysis reaches the fifth step without a finding that the claimant is not disabled, the burden

transfers to the Commissioner. Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir.

2006). At the fifth step, the Commissioner is required to show that “other jobs in significant

numbers exist in the national economy that [claimant] could perform given [his] RFC and

considering relevant vocational factors.” Rogers, 486 F.3d at 241; 20 C.F.R. §§ 416.920(a)(4)(v)

and (g). 

C. Analysis and Conclusions

The undersigned finds that by failing to follow proper procedures in considering the

testimony of treating physicians, consulting physicians and Plaintiff, the ALJ failed to recognize

that pain and muscle weakness, even if of unclear etiology, could qualify as a disability under

sections 216(i) and 223(d) of the Social Security Act. Under step two of the five-step sequential

evaluation process for determining whether an individual is disabled (20 CFR 404.1520(a)), the

ALJ erred in concluding that Plaintiff’s only severe impairments were hepatic liver disease with

possible cirrhosis and pancreatitis. This erroneous finding affected the following three steps in

the ALJ’s evaluation process. At step three, by not considering Plaintiff’s pain, the ALJ held

that Plaintiff’s hepatic liver disease and pancreatitis did not qualify as a disability because they
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did not meet or medically equal one of the listed impairments in 20 CFR Part 404, Subpart P,

Appendix 1 (Tr. 11, 13). At step four, the ALJ further developed a faulty RFC by failing to

recognize Plaintiff’s pain syndromes. Therefore, the ALJ erred in concluding at step four that

Plaintiff could perform his previous work and thus denying him Social Security disability

benefits before going on to step five.

The ALJ held that Plaintiff “has undergone extensive laboratory tests which have not

accounted for his pain complaints” (Tr. 12). Because Plaintiff’s complaints of weakness and

chronic pain “have not resulted in any definable etiology or cause,” the ALJ concluded, they “do

not fall under any listing classification” in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR

404.1520(d), 404.1525 and 404.1526 (Tr. 13) and therefore do not qualify as a disability. 

However, a plaintiff need not prove the exact cause of a symptom to qualify as having a

disability, particularly where the plaintiff’s impairment is not fully understood. Cohen v.

Secretary of Health and Human Servs., 964 F.2d 524 (6th Cir. 1992). 

Additionally, the ALJ erred by not giving adequate consideration to the opinions and

diagnoses of Plaintiff’s treating physicians, Drs. Schultz and Davison, in his discussion of

Plaintiff’s alleged pain and muscle weakness. In a social security disability proceeding, an

ALJ’s failure to follow the procedural requirement of identifying the reasons for discounting the

opinions of treating physicians and of explaining precisely how those reasons affected the weight

accorded the opinions denotes a lack of substantial evidence, even where the conclusion of the

ALJ may be justified based upon the record. Rogers, 486 F.3d at 243 (quoting Wilson, 378 F.3d

at 544). Additionally, 20 CFR 404.1527(d)(2) states that generally more weight is given to the

opinions of a claimant’s treating physician:
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“since these sources are likely to be the medical professionals most

able to provide a detailed, longitudinal picture of your medical

impairment(s) and may bring a unique perspective to the medical

evidence that cannot be obtained from the objective medical

findings alone or from reports of individual examinations, such as

consultative examinations or brief hospitalizations.”

First, Plaintiff’s original treating physician was Dr. Michael Schultz, until Dr. Schultz’

retirement, at which time Plaintiff saw Dr. Davison as his treating physician (Tr. 19). With

regard to pain and muscle strength, Dr. Schultz diagnosed Plaintiff with chronic pain and

weakness of undetermined etiology, generalized loss of strength, reduced capacity for any type

of physical activity and mild muscle tenderness (Tr. 421, 423). Dr. Schultz clarified that

although no medical practitioners have been able to diagnose Plaintiff’s exact medical condition,

“it certainly has not been for lack of trying” (Tr. 202). Dr. Schultz also stated that since Plaintiff

was hospitalized in October 2005, he has had the same persistent complaints of muscle pain in

the upper and lower extremities as well as some abdominal pain, muscle weakness and joint

aching (Tr. 201). Second, Dr. Davison, Plaintiff’s second treating physician, treated his

“significant pain” with a medication “10 times more potent than morphine” (Tr. 212). 

Even where the diagnosis of either Drs. Schultz or Davison conflicted with an opinion of

a consulting physician, the ALJ should have given deference to Drs. Schultz and Davison

because they were and are, respectively, Plaintiff’s treating physicians. The opinion of a

consulting physician is not substantial evidence if contrary to the opinion of a treating physician.

Miracle v. Celebrezze, 351 F.2d 361, 378-79 (6th Cir. 1965). Furthermore, it has repeatedly

been held that the opinions of a treating physician are entitled to great weight and generally are

entitled to greater weight than the contrary opinions of a consulting physician who has examined

the claimant on only a single occasion. Rogers, 486 F.3d at 242; Farris v. Sec’y of Health and
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Human Servs., 773 F.2d 85, 90 (6th Cir. 1985); Harris v. Heckler, 756 F.2d 431, 435 (6th Cir.

1985); Hurst v. Scheweiker, 725 F.2d 53, 55 (6th Cir. 1984); Stamper v. Harris, 650 F.2d 108,

111 (6th Cir. 1981); Branham v. Gardner, 383 F.2d 614, 634 (6th Cir. 1967). 

There are at least two examples of contrasting opinions between treating and consulting

physicians in this case. First, Dr. Schultz stated, “I do not believe he [Plaintiff] is a

malingerer...Pain is subjective to the patient but it is very real” to Plaintiff (Tr. 202). This

opinion is at odds with the opinion of a consulting physician, Dr. Ross Halpern, who said

Plaintiff’s “medical history is likely to be characterized by excessive and vague physical

complaints, weakness, and pain” (Tr. 206-7) and who implied that Plaintiff’s financial stress

caused him to apply for Social Security disability benefits (Tr. 205). This sole statement led the

ALJ to state, despite a lack of foundation, “the lack of much significant income...suggests a

secondary motive to apply for disability while, given his divorce and the presence of a daughter

who presumably is with his ex-wife, there is also a possibility of other secondary gain motives at

work” (Tr. 14-15). Second, Dr. Davison diagnosed Plaintiff in August 2008 with severe sensory

neuropathy with myopathy and significant atrophy of the lower extremities with muscle wasting

(Tr. 212). This opinion is in contrast to the November 2003 opinion of consulting physician Dr.

Devanshu Thakore, who said that Plaintiff did not have any atrophy (Tr. 251). In both instances,

the ALJ should have given greater deference to the opinions and diagnoses of Plaintiff’s treating

physicians, Drs. Schultz and Davison.

Moreover, the ALJ was unjustifiably selective in the number of consulting physicians

referenced and the types of comments that each of the cited treating physicians made. The ALJ

did not cite the testimony of consulting physicians Dr. Buday or Eva Michals, PA-C which
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would have been favorable to Plaintiff. For example, Neurologist Dr. Buday performed an EMG

on Plaintiff and diagnosed him with mild carpal tunnel syndrome (Tr. 104) and Eva Michals,

PA-C, qualified Plaintiff to use a Disability Parking Placard (Tr. 186) based on his medical

condition. Additionally, although the ALJ cited particular findings by Drs. Iftikhar Khan, Carlos

Diola and Timothy Laing, he failed to mention diagnoses of the same physicians which were

favorable to Plaintiff. Dr. Khan said that “there is some individual muscle group strength

weakness such as grip strength of both hands,” (Tr. 479) Dr. Diola found that Plaintiff had

diffuse joint and muscle pain (Tr. 411) and chronic leg myalgia (Tr. 462-63) and Dr. Laing

diagnosed Plaintiff with a “generalized pain disorder” and concluded that Plaintiff “seemed to be

debilitated by his diffuse pain” (Tr. 455).

The ALJ further failed to follow proper protocol by not mentioning Plaintiff’s subjective

testimony of pain and muscle weakness in his opinion. In Hurst v. Sec’y of Health and Human

Servs., 753 F.2d 517, 519 (6th Cir. 1985) the court held that an ALJ must state reasons for

crediting or rejecting particular items of evidence including the subjective testimony of the

claimant. See also, Wines v. Comm’rs of Soc. Sec., 268 F.Supp. 2d 954 (N.D. Ohio 2003);

Thompson v. Apfel, 199 F.Supp 2d 798, 815 (W.D. Tenn. 2001) (emphasis added). 20 CFR

404.1529(c)(4) states that the ALJ should consider a claimant’s statements about the intensity,

persistence, and limiting effects of his or her symptoms, and evaluate such statements in relation

to the objective medical evidence and other evidence, in reaching a conclusion as to whether the

claimant is disabled. In this case, the ALJ did not do so. Furthermore, 20 CFR 404.1529(c)(3)

lists examples of “other evidence” the court can consider to determine the severity of a

claimant’s pain or other symptom, including:
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(i) The claimant’s daily activities;

(ii) The location, duration, frequency, and intensity of the claimant’s pain or other

symptoms;

(iii) Precipitating and aggravating factors;

(iv) The type, dosage, effectiveness, and side effects of any medication the claimant takes

or has taken to alleviate your pain or other symptoms;

(v) Treatment, other than medication, the claimant receives or has received for relief of

pain or other symptoms;

(vi) Any measures the claimant uses or has used to relieve pain or other symptoms (e.g.,

lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board,

etc.); and

(vii) Other factors concerning the claimant’s functional limitations and restrictions due to

pain or other symptoms.

However, the ALJ did not sufficiently discuss any of these factors in relation to Plaintiff’s pain,

other than briefly concluding that because Plaintiff operated a tractor on a single known

occasion, attends to his personal needs, spends time with friends and family and drives a vehicle

regularly, he cannot be disabled (Tr.14). There were several additional pieces of evidence that

the ALJ should have taken into consideration, such as Plaintiff’s April 2006 Function Report

where he listed the activities he is involved in on a daily and weekly basis. According to those

statements, Plaintiff watches TV or reads books for most of the day and goes to the grocery store

and library only about once a week and only when he feels good enough to do so (Tr. 138). 

Plaintiff also explained that prior to his current condition, he was able to walk or ride a bike four

or more miles, bend down to pick up heavy items, mow the lawn with a push mower and clean

his home’s eave troughs (Tr. 139, 144). Regarding his current medical condition, Plaintiff

stated, he cannot squat or kneel at all and can only stand or sit until his legs begin to hurt (Tr.
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143). Plaintiff also said that with regard to walking, if he only has a small amount of pain he can

go shopping or cut the grass until the pain intensifies too much, but that if he is experiencing a

lot of pain, he is only able to walk to the bathroom or kitchen in his house (Tr. 143). Plaintiff

stated that climbing stairs hurts his legs the most, that he sometimes trips while climbing the

stairs and that occasionally his leg pain hurts so that he is unable to finish a task he is working on

such that he has to “stop and wait until the pain is bearable and then finish the task” (Tr. 145). 

When Plaintiff experiences pain and needs to rest as a result of walking, he stated that it could

take anywhere between ten minutes and three hours before he can resume walking (Tr. 143). 

None of this evidence was discussed by the ALJ, providing another reason why this case should

be remanded for further proceedings.

The ALJ also failed to explain why Plaintiff’s pain and muscle weakness would not

qualify as a musculoskeletal impairment under 20 CFR Part 404, Subpart P, Appendix 1. The

court in Johnson v. Sec’y of Health and Human Servs., 794 F.2d 1106, 1111 (6th Cir. 1986) held

that an ALJ must fully and fairly develop the administrative record. Where the evidence

suggests that a claimant may well meet a listed impairment, the ALJ must develop the evidence

in order to determine whether or not the listing is met. Consulting physician Dr. R. Michael

stated in July 2008 that “Plaintiff has done a variety of physically demanding tasks. The

combination of these tasks has aggravated and promoted the musculoskeletal problems that are

now diffuse” (Tr. 210). In his decision, however, the ALJ stated that because the etiology of

Plaintiff’s alleged pain and muscle weakness had not yet been determined, it “cannot be found to

represent any other definable severe physical impairment” (Tr. 13). In Duncan v. Sec’y of

Health and Human Servs., 801 F.2d 847, 853 (6th Cir. 1986), the court adopted the statutory
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pain standard contained in the Disability Benefits Reform Act of 1984 pursuant to which pain

can only be considered in determining disability if there is objective medical proof establishing

the presence of disabling pain or objective medical proof of an impairment which could

reasonably be expected to result in disabling pain. McCoy v. Chater, 81 F.3d 44, 47 (6th Cir.

1995); Shavers v. Sec’y of Health and Human Servs., 839 F.2d 232 (6th Cir. 1987). The

testimony of the aforementioned treating and consulting physicians establish the existence of

pain, therefore, the ALJ should have analyzed in greater depth whether Plaintiff’s pain alone

qualified as a disability.

In sum, the undersigned recommends that this matter be remanded for further

proceedings consistent with the discussion above.

IV. RECOMMENDATION

Based on the foregoing, it is RECOMMENDED that Plaintiff’s motion for remand be

GRANTED, Defendant’s motion for summary judgment be DENIED, and that the findings of

the Commissioner be REVERSED.

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as

provided for in 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). Failure to file specific

objections can constitute a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140,

142 106 S.Ct. 466, 468 (1985); Howard v. Sec’y of Health and Human Servs., 932 F.2d 505, 508

(6th Cir. 1991); U.S. v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). The filing of objections

which raise some issues, but fail to raise others with specificity, will not preserve all the

objections a party might have to this Report and Recommendation. Willis v. Sullivan, 931 F.2d
-18-

390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers, 829 F.2d 1370, 1373 (6th Cir.

1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this

magistrate judge.

Within fourteen (14) days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be no more than 20 pages in length

unless, by motion and order, the page limit is extended by the court. The response shall address 

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

S/Mark A. Randon 

MARK A. RANDON

UNITED STATES MAGISTRATE JUDGE

Dated: June 17, 2010

Certificate of Service

I hereby certify that a copy of the foregoing document was mailed to the parties of record

on this date, June 17, 2010, by electronic and/or ordinary mail.

S/Barbara M. Radke 

Judicial Assistant