1

The format and style of this Report and Recommendation are intended to comply with the requirements of the

E-Government Act of 2002, Pub. L. 107-347, 116 Stat. 2899 (Dec. 17, 2002), the recently amended provisions of

Fed. R. Civ. P. 5.2(c)(2)(B), E.D. Mich. Administrative Order 07-AO-030, and guidance promulgated by the

Administrative Office of the United States Courts found at: http://jnet.ao.dcn/img/assets/5710/dir7-108.pdf. This

Report and Recommendation only addresses the matters at issue in this case and is not intended for publication in

an official reporter or to serve as precedent.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GARY SCHMIDT,

Plaintiff,

v. CASE NO. 09-CV-12808

COMMISSIONER OF DISTRICT JUDGE AVERN COHN

SOCIAL SECURITY, MAGISTRATE JUDGE CHARLES E. BINDER

Defendant.

___________________________/ 

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION1

I. RECOMMENDATION

In light of the entire record in this case, I suggest that substantial evidence supports the

Commissioner’s determination that Plaintiff is disabled. Accordingly, IT IS RECOMMENDED

that Plaintiff’s Motion for Summary Judgment be DENIED, that Defendant’s Motion for Summary

Judgment be GRANTED, and that the findings of the Commissioner be AFFIRMED.

II. REPORT

A. Introduction and Procedural History

Pursuant to 28 U.S.C. § 636(b)(1)(B), E.D. Mich. LR 72.1(b)(3), and by Notice of

Reference, this case was referred to this magistrate judge for the purpose of reviewing the

Commissioner’s decision denying Plaintiff’s claim for a period of disability, disability insurance
 2

See Califano v. Sanders, 430 U.S. 99, 107-08, 97 S. Ct. 980, 51 L. Ed. 2d 192 (1977) (no jurisdiction to review

refusal to reopen absent a constitutional claim); Drummond v. Comm’r of Soc. Sec., 126 F.3d 837, 841 (6th Cir.

1997); Bagby v. Harris, 650 F.2d 836 (6th Cir. 1981), cert. denied, 454 U.S. 1087 (1981) (discussing res judicata).

2

benefits, and supplemental security income benefits. This matter is currently before the Court on

cross-motions for summary judgment. (Docs. 11, 16.)

Plaintiff was 35 years of age at the time of the most recent administrative hearing.

(Transcript, Doc. 9 at 19, 65.) Plaintiff’s relevant employment history includes work as a

construction laborer for 10 years and as a self-employed taxidermist from 2003 to the present. (Tr.

at 84.) Plaintiff filed his first application for a period of disability and disability insurance benefits

on March 18, 2002, alleging that he had been disabled since August 15, 2000. That application

was denied by initial determination dated August 16, 2002. Plaintiff requested and was granted

a hearing and appeared before Administrative Law Judge (“ALJ”) Douglas N. Jones on March 1,

2004. ALJ Jones found that although Plaintiff had a severe back impairment, he could perform

sedentary work and therefore was not disabled. Plaintiff did not appeal this decision, so, based on

the principles of res judicata, it is binding as to Plaintiff’s disability claim through July 12, 2004.2

Plaintiff filed the instant claims on August 19, 2004, alleging that he became disabled on

July 15, 2000, one month earlier than the date claimed on his first application. (Tr. at 65.) The

claim was denied at the initial administrative stages. (Tr. at 40.) In denying Plaintiff’s claims, the

Defendant Commissioner considered disorders of back, discogenic and degenerative, and other and

unspecified arthropathies as possible bases of disability. (Id.) On March 13, 2007, Plaintiff

appeared with counsel before ALJ Peter N. Dowd, who considered the application for benefits de

novo. (Tr. at 15-29.) In a decision dated April 25, 2007, the ALJ found that Plaintiff was not

disabled. (Tr. at 29.) Plaintiff requested a review of this decision on April 30, 2007. (Tr. at 11.)

The ALJ’s decision became the final decision of the Commissioner, see Wilson v. Comm’r
 3

In this circuit, when 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 Cline v. Comm’r

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

3

of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004), on June 9, 2009, when, after the review of

additional exhibits3

 (Tr. at 418-46), the Appeals Council denied Plaintiff’s request for review. (Tr.

at 3-6.) On July 16, 2009, Plaintiff filed the instant suit seeking judicial review of the

Commissioner’s unfavorable decision.

B. 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 determination for

exceeding statutory authority or for being arbitrary and capricious. Sullivan v. Zebley, 493 U.S.

521, 110 S. Ct. 885, 890, 107 L. Ed. 2d 967 (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. Bowen v. Yuckert, 482 U.S. 137,

142, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987). If relief is not found during the 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) (en banc).

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., 402 F.3d 591, 595 (6th Cir.
4

2005). See also 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). See also 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 witnesses, including that of

the claimant.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007). See also 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’”) (citing 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”)); 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.”). “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 S.S.R. 96-7p, 1996 WL 374186, at *4).

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

42 U.S.C. § 405(g). Therefore, the 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).

See also Mullen, 800 F.2d at 545. The scope of the court’s review is limited to an examination of

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

Substantial evidence is “more than a scintilla of evidence but less than a preponderance; it is such
5

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Rogers,

486 F.3d at 241. See also 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).

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. 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 discuss every piece of evidence in the administrative record. Kornecky v. Comm’r

of Soc. Sec., 167 Fed. App’x 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”);

Van Der Maas v. Comm’r of Soc. Sec., 198 Fed. App’x 521, 526 (6th Cir. 2006).

C. Governing Law

The “[c]laimant bears the burden of proving his 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. App’x 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
6

children who become disabled. F.BLOCH,FEDERAL DISABILITY LAW AND PRACTICE § 1.1 (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); 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 plaintiff can perform, in view of his

or her age, education, and work experience, benefits are denied.

20 C.F.R. §§ 404.1520, 416.920. See also 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.
 4

In order to be eligible for disability benefits, a person must become disabled during the period in which he or

she has met the statutory special earnings requirements. 42 U.S.C. §§ 416(i), 423 (d)(1)(A). Federal courts have

therefore held that “[m]edical evidence is relevant to prove a disability only while the claimant enjoyed insured

status. However, medical evidence that postdates the insured status may be, and ought to be, considered insofar as

it bears on the claimant’s condition prior to the expiration of insured status.” Anderson v. Comm’r of Soc. Sec., 440

F. Supp. 2d 696, 699 (E.D. Mich. 2006) (citing Estep v. Weinberger, 525 F.2d 757 (6th Cir. 1975)). See also Davis

v. Califano, 616 F.2d 348 (8th Cir. 1979); Begley v. Matthews, 544 F.2d 1345, 1354 (6th Cir. 1976).

7

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

limitations caused by [his] impairments and the fact that [he] is precluded from performing [his]

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, 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 [residual functional capacity] and

considering relevant vocational factors.” Rogers, 486 F.3d at 241 (citing 20 C.F.R. §§

416.920(a)(4)(v), (g)).

D. ALJ Findings

 The ALJ applied the Commissioner’s five-step disability analysis to Plaintiff’s claim and

found at step one that res judicata precluded him from considering whether Plaintiff could have

been disabled prior to July 13, 2004. (Tr. at 18.) The ALJ next concluded that as to his claim for

disability benefits, Plaintiff only met the insured status requirements of the Social Security Act

through March 31, 2006.4

 (Tr. at 21.) At step two, the ALJ found that Plaintiff’s degenerative disc

disease of the lumbar and thoracic spine and bilateral shoulder impingement syndrome were

“severe” within the meaning of the second sequential step. (Tr. at 22.) At step three, the ALJ

found no evidence that Plaintiff’s combination of impairments met or equaled one of the listings

in the regulations. (Tr. at 22-23.) At step four, the ALJ found that Plaintiff lacked the residual
8

functional capacity to perform his past relevant work. (Tr. at 27.) At step five, the ALJ found that

Plaintiff had the residual functional capacity to perform a limited range of sedentary work. (Tr.

at 22-26.)

E. Administrative Record

A review of the relevant medical evidence contained in the administrative record and

presented to the ALJ indicates that Plaintiff continued to be seen by Gavin Awerbach, M.D. Dr.

Awerbach opined that after having “reviewed his social security determination . . . [the ALJ] . . .

contradicted himself [because he] states the detailed findings in my notes and then reports that they

are ‘vague.’” (Tr. at 315.) Dr. Awerbach also noted Plaintiff’s back pain, that Plaintiff “completed

his series of epidural blocks” and that Plaintiff is a “part-time taxidermist.” The doctor

recommended that Plaintiff continue with a home exercise program. He also prepared a written

restriction in an effort to assist Plaintiff in finding work. (Id.) Plaintiff was described as

“compliant” and with “no aberrant behaviors.” (Id.)

A psychiatric review technique conducted in October 2004 found Plaintiff had no severe

mental impairments. (Tr. at 350.) A “DDS Consultation Form completed the same month also

concluded that Plaintiff did not suffer from any severe mental impairments.” (Tr. at 364.) A

physical Residual Functional Capacity (“RFC”) assessment performed in October 2004 concluded

that Plaintiff is able to lift “slightly” less than 10 pounds occasionally and frequently, that he is

able to stand or walk for 2 hours in an 8-hour workday, sit for about 6 hours in an 9-hour workday,

and that he is unlimited in his ability to push or pull. (Tr. at 366.) The assessment also concluded

that Plaintiff is occasionally limited in all the postural areas, such as climbing, stooping, and

kneeling, but that no manipulative, visual, communicative or environmental limitations were
9

found. (Tr. at 367-69.) There was no treating or examining source statement to compare to the

assessor’s findings. (Tr. at 371.) 

In August 2005, Plaintiff was examined by Abbas Bekhrad, M.D.,for urinary frequency;

prostate, renal ultrasounds, and cystometrograms were all normal. (Tr. at 412.) Chest and

abdominal x-rays taken in October 2005 were normal. (Tr. at 408.) In 2006, Plaintiff participated

in a program at the Insight Recovery Center for alcohol dependence. (Tr. at 409.) An EMG

performed in April 2006 showed “[b]ilateral L5-S1 radiculopathy.” (Tr. at 415.) 

In January and July 2006, Dr. Awerbach “stressed functional restoration rather than

complete pain relief as a goal of treatment” and reviewed home isometric strengthening and range

of motion exercises. (Tr. at 422, 428.) In mid-January 2006, Plaintiff underwent an

echocardiogram and doppler flow study of his heart, which indicated mild abnormalities of the

mitral valve, but normal aortic valve and normal size and function of the left ventricle and no

effusion of the pericardium. (Tr. at 417). In May 2006, Dr. Awerbach indicated he “would like

[Plaintiff] to begin physical therapy consisting of modalities and then progressing into a home

exercise program,” and later that month noted that Plaintiff “lost his slip again for physical

therapy,” so Dr. Awerbach gave him another one. (Tr. at 424-25.) In August 2006, Dr. Awerbach

“encouraged [Plaintiff’s] weightlifting in hopes of elevating muscle mass and testosterone level.”

(Tr. at 420.) Plaintiff was also given lumbar facet injections for his back pain. (Id.) 

An MRI taken in November 2006 to evaluate Plaintiff’s low testosterone level and fatigue

was normal except for the presence of a “small less enhancing lesion in the left side of the pituitary

gland measuring 3-4 mm in size most consistent with pituitary microadenoma.” (Tr. at 414.) After

review of this test, Dr. Awerbach placed Plaintiff on a prescription medicine for the deficiency.
10

(Tr. at 418.) Dr. Awerbach noted that although Plaintiff “does not sleep well[,] he has been out

hunting [and] getting up early in the morning as well.” (Tr. at 418.)

On March 15, 2007, Dr. Awerbach noted that he had referred Plaintiff to an endocrinologist

and that he “do[es] not feel that [Plaintiff] is capable of working in any significant capacity.” (Tr.

at 432.) Dr. Awerbach wrote a letter on behalf of Plaintiff dated March 27, 2007, in which he

noted Plaintiff’s medical history and indicated that Plaintiff has fatigue caused by his need to “use

the bathroom every two hours during the day or night,” sleep apnea, and endocrine abnormalities.

(Tr. at 431.) Dr. Awerbach also indicated that Plaintiff has “poor concentration and attention

deficit disorder type symptoms.” (Id.) Dr. Awerbach also stated that Plaintiff has “trouble

standing or walking and also has difficulty bending or twisting” and that Plaintiff “should avoid

climbing, working with machinery, working in open spaces, or doing any other activity where he

could potentially harm himself if he would become dizzy and lose his balance suddenly.” (Id.)

Plaintiff indicated in his daily activity report that he prepares simple meals and that he does

laundry and dishes with some help from others. (Tr. at 93.) Plaintiff also drives, shops for

groceries and personal items once or twice a week, and is able to manage his own finances. (Tr.

at 94.) Plaintiff watches television, reads, watches movies with his daughter, and spends time

visiting with others on the phone or in person several times a week. (Tr. at 95.) Plaintiff also

testified that he is taking two classes on three days of the week, that he does the housework, uses

a riding lawnmower to mow his yard, and deer hunts with a rifle. (Tr. at 484-85, 487-88, 491.)

When the ALJ asked Plaintiff whether his depression is currently worse or about the same as the

depression he had when he was able to work two and one-half years ago, Plaintiff indicated it was

“about the same.” (Tr. at 498.) 
11

The Vocational Expert (“VE”) was asked to assume a person with Plaintiff’s background

and one who has

a maximum Residual Functional Capacity to perform sedentary exertional work

activities that provide an option to sit or stand at will, and involve only occasional,

that is up to 33% of the time, use of foot controls, bending at the waist or knees,

twisting of the torso, kneeling, climbing, overhead reaching, and that individual can

do no crawling, no climbing of ladders, and no use of vibrating machinery or tools.

(Tr. at 504.) The VE testified that such a person could perform surveillance system monitor,

cashier, and telemarketer jobs that exist in significant specific numbers in the lower peninsula of

Michigan. (Tr. at 504-05.) The VE further testified that if such a person also needed to take naps

during the day, that person would not be capable of performing any work. (Tr. at 505.) Finally,

the VE stated that her testimony was consistent with the Dictionary of Occupational Titles

(“DOT”). (Tr. at 505.) 

 F. Analysis and Conclusions

1. Legal Standards

The ALJ determined that Plaintiff possessed the residual functional capacity to perform

sedentary work. (Tr. at 22-26.) Sedentary work involves lifting no more than ten pounds at a time

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

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

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

required occasionally and other sedentary criteria are met. 20 C.F.R. § 404.1567(a)(1991). Social

Security Ruling 83-10 clarifies this definition:

“Occasionally” means occurring from very little up to one-third of the time. Since

being on one’s feet is required “occasionally” at the sedentary level of exertion,

periods of standing or walking should generally total no more than about 2 hours of

an 8-hour workday, and sitting should generally total approximately 6 hours of an

8-hour workday. Work processes in specific jobs will dictate how often and how

long a person will need to be on his or her feet to obtain or return small articles.
12

SSR 83-10.

After review of the record, I suggest that the ALJ utilized the proper legal standard in his

application of the Commissioner’s five-step disability analysis to Plaintiff’s claim. I turn next to

the consideration of whether or not substantial evidence supports the ALJ’s decision.

2. Substantial Evidence

Plaintiff argues that substantial evidence fails to support the findings of the Commissioner.

As noted earlier, if the Commissioner’s decision is supported by substantial evidence, the decision

must be affirmed even if this Court would have decided the matter differently and even where

substantial evidence supports the opposite conclusion. McClanahan, 474 F.3d at 833; Mullen, 800

F.2d at 545. In other words, where substantial evidence supports the ALJ’s decision, it must be

upheld.

Plaintiff contends that the ALJ did not properly evaluate Plaintiff’s combination of

impairments and how they limit Plaintiff’s ability to perform basic work activities. (Doc. 11 at 9-

10.) Plaintiff further contends that the ALJ failed to consider Plaintiff’s need to nap in the

afternoon, his discogenic problems, and endocrine level issues. (Doc. 11 at 9.) In addition,

Plaintiff contends that the ALJ did not give proper weight to the medical evidence offered by

Plaintiff’s treating physician, Dr. Awerbach, i.e. that Plaintiff’s endocrine abnormalities cause

fatigue, poor concentration and depression, and that Plaintiff must use the bathroom every two

hours, which also causes fatigue. (Doc. 11 at 9-11.) 

Dr. Awerbach stated on March 15, 2007, that he “do[es] not feel that [Plaintiff] is capable

of working in any significant capacity.” (Tr. at 432.) Since “[i]t is well settled that the ultimate

issue of disability is reserved to the Commissioner,” I suggest that Dr. Awerbach’s conclusion that

Plaintiff was not able to work was properly discounted by the ALJ. See Kidd v. Commissioner,
13

283 Fed. App’x 336, 341 (6th Cir. 2008); Gaskin v. Commissioner, 280 Fed. App’x 472, 475-76

(6th Cir. 2008). I further suggest that the ALJ properly discounted Dr. Awerbach’s medical

opinions and chose not to give them controlling weight because they were not well-supported and

were inconsistent with other substantial evidence in the record. See Wilson v. Comm’r of Soc.

Sec., 378 F.3d 541, 544 (6th Cir. 2004); 20 C.F.R. § 404.1527(d)(2). Although Dr. Awerbach

wrote a letter on behalf of Plaintiff dated March 27, 2007, in which he indicated that Plaintiff has

fatigue caused by his need to “use the bathroom every two hours during the day or night” (Tr. at

431), the only examinations conducted because of urinary frequency, i.e., renal ultrasounds and

cystometrograms, were all normal. (Tr. at 412.) Although Dr. Awerbach stated that he believes

Plaintiff suffers from depression and poor concentration, the medical evidence reveals that Plaintiff

does not suffer from any severe mental impairment. (Tr. at 350, 364, 431.) In addition, Plaintiff’s

own testimony was that his depression is “about the same” as it was when he was able to work.

(Tr. at 498.)

As to physical impairments, Dr. Awerbach himself continued to suggest that Plaintiff

increase his activities when Dr. Awerbach “stressed functional restoration rather than complete

pain relief as a goal of treatment” and reviewed home isometric strengthening and range of motion

exercises. (Tr. at 422, 428.) Dr. Awerbach indicated that he “would like [Plaintiff] to begin

physical therapy consisting of modalities and then progressing into a home exercise program” and

even recommended weightlifting. (Tr. at 420, 424, 425.)

The limitations Dr. Awerbach suggested, i.e., that Plaintiff avoid bending or twisting,

climbing, working with machinery, working in open spaces, or doing any other activity where he

could potentially harm himself if he would become dizzy and lost his balance suddenly, were

incorporated into the hypothetical. (Tr. at 431, 504.) I therefore suggest that the hypothetical was
14

in harmony with the objective record medical evidence as well as the daily activities described by

Plaintiff himself, i.e., that he prepares simple meals, does laundry and dishes with some help from

others, drives, shops for groceries and personal items once or twice a week, is able to manage his

own finances, watches television, reads, watches movies with his daughter, spends time visiting

with others on the phone or in person several times a week, that he is taking two classes on three

days of the week, that he does the housework, uses a riding lawnmower to mow his yard, hunts

deer with a rifle, and is a part-time taxidermist. (Tr. at 93-95, 315, 484-85, 487-88, 491.) See

Griffeth v. Comm’r of Soc. Sec., 217 Fed. App’x 425, 429 (6th Cir. 2007); Varley v. Sec’y of

Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987). 

Finally, I suggest that although Plaintiff claims a need to nap in the afternoon, there is no

medical evidence supporting that need and, thus, the ALJ did not err in finding Plaintiff only

partially credible with respect to his claims of disabling pain based on the lack of objective medical

evidence to confirm the severity of the alleged pain. 20 C.F.R. § 404.1529(b); Jones v. Sec’y of

Health & Human Servs., 945 F.2d 1365, 1369 (6th Cir. 1991) (citing Duncan v. Sec’y of Health

& Human Servs., 801 F.2d 847, 853 (6th Cir. 1986)); see also Cummins v. Schweiker, 670 F.2d

81, 84 (7th Cir. 1982) (“a trier of fact is not required to ignore incentives in resolving issues of

credibility”); Krupa v. Comm’r of Soc. Sec., No. 98-3070, 1999 WL 98645 at *3 (6th Cir. Feb. 11,

1999) (unpublished).

For all these reasons, after review of the relevant record, I conclude that the decision of the

ALJ, which ultimately became the final decision of the Commissioner, is within that “zone of

choice within which decision makers may go either way without interference from the courts,”

Felisky, 35 F.3d at 1035, as the decision is supported by substantial evidence. 
15

III. REVIEW

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

within fourteen (14) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1).

Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v.

Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed.2d 435 (1985); Frontier Ins. Co. v. Blaty, 454 F.3d

590, 596 (6th Cir. 2006); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005). The parties

are advised that making some objections, but failing to raise others, will not preserve all the

objections a party may have to this Report and Recommendation. McClanahan, 474 F.3d at 837;

Frontier Ins. Co., 454 F.3d at 596-97. 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 concise, but commensurate in detail

with the objections, and shall address specifically, and in the same order raised, each issue

contained within the objections.

 s/ Charles` E Binder 

CHARLES E. BINDER 

Dated: April 20, 2010 United States Magistrate Judge

CERTIFICATION

I hereby certify that this Report and Recommendation was electronically filed this date and served upon counsel of

record via the Court’s ECF System.

Date: April 20, 2010 By s/Patricia T. Morris 

Law clerk to Magistrate Judge Binder