UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

WINDA K. KIDD, 

 Plaintiff, CIVIL ACTION NO. 09-12275 

v. 

 DISTRICT JUDGE GEORGE CARAM STEEH

 MAGISTRATE JUDGE DONALD A. SCHEER 

COMMISSIONER OF 

SOCIAL SECURITY, 

 Defendant. 

___________________________/ 

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

RECOMMENDATION: Plaintiff's Motion for Summary Judgment should be DENIED, and

that of Defendant GRANTED, as there was substantial evidence on the record that

claimant retained the residual functional capacity for a limited range of sedentary work.

 * * * 

Plaintiff filed applications for Social Security Disability Income Benefits (DIB) and

Supplemental Security Income (SSI) benefits on January 13, 2006, alleging that he had

been disabled and unable to work since December 1, 2004, at age 35, due to abdominal

problems, back pain, a hiatal hernia and mental depression. Benefits were denied by the

Social Security Administration (SSA). A requested de novo hearing was held on September

16, 2008, before Administrative Law Judge (ALJ) John Christensen. The ALJ subsequently

found that the claimant was not entitled to disability benefits because he retained the ability

to perform a restricted range of sedentary work providing a sit-stand option. The Law Judge

restricted claimant from jobs that would expose him to pushing and pulling, moving

machinery or unprotected heights. The ALJ also limited him to simple, low stress jobs that
had no more than occasional contact with the general public. The Appeals Council declined

to review the ALJ’s decision and Plaintiff commenced the instant action for judicial review

of the denial of benefits. The parties have 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. 

Claimant was 39 years old at the time of the administrative hearing (TR 244). He had

a tenth grade education, and had been employed as a janitor, salesman, factory worker

and as a groundskeeper for a funeral home, (TR 51, 246-248). These jobs required him

to be on him feet for a majority of the workday. He constantly had to handle, grip and

manipulate large and small objects. He had to lift up to 50 pounds on a regular basis

(TR 52-57). Claimant stopped working in December 2004, due to progressively worsening

gastrointestinal difficulties that forced him to lie down for extended periods (TR 249, 251). 

 Plaintiff alleged that he was disabled as a result of abdominal and stomach pain, low

back discomfort and mental depression (TR 251). Claimant doubted that he could return

to work due to chronic fatigue, and the need to take frequent bathroom breaks (TR 249,

251). He claimed that he needed to use the bathroom five times a day (TR 251). Plaintiff

testified that medications helped alleviate his pain (TR 249). Since the medications needed

to be taken with food, the claimant smoked marijuana to improve his appetite (TR 251).

Plaintiff remained capable of shopping, cooking, housekeeping, socializing and cared for

his personal needs (TR 96). He was able to drive an automobile, help with child care, play

the piano and grow his own marijuana (TR 96, 118, 201-202).

A Vocational Expert, Melody Henry, classified Plaintiff’s past work as medium to

heavy, unskilled activity (TR 20). The witness testified that there would not be any jobs for

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claimant to perform if him testimony were fully accepted1

 (TR 255-256). If he were capable

of sedentary work, however, there were numerous unskilled sorting, packaging, inspection

and bench assembly jobs that he could still perform with minimal vocational adjustment

(TR 255). These simple, low stress jobs allowed a sit-stand option, and did not expose

workers to high production demands, moving machinery or unprotected heights. They

involved only occasional interaction with the public. There would be no pushing or pulling

with either arm, and no foot controls would be required (TR 254-255).

LAW JUDGE'S DETERMINATION

The Administrative Law Judge found that Plaintiff was impaired as a result of a

history of a small bowel obstruction, a bulging lumbosacral disc, a history of a hiatal hernia

and mental depression, but that he did not have an impairment or combination of

impairments severe enough to meet or equal the Listing of Impairments. The ALJ

recognized that claimant’s multiple impairments prevented him from working at jobs

requiring him to sit or stand for prolonged periods, and from work involving pushing or 

pulling with either arm. The Law Judge also restricted claimant from jobs that would expose

him to frequent changes in the workplace, moving machinery or unprotected heights. 

Nevertheless, the Law Judge found that Plaintiff retained the residual functional capacity

to perform a significant number of sedentary jobs, within those limitations, as identified by

the Vocational Expert.

 1The witness testified that claimant’s alleged need to take frequent days off every

month would preclude all work activity (TR 255).

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STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this court has jurisdiction to review the

Commissioner's decisions. Judicial review of those decisions is limited to determining

whether his findings are supported by substantial evidence and whether he employed the

proper legal standards. Richardson v. Perales, 402 U.S. 389, 401 (1971). 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. See Kirk

v. Secretary, 667 F.2d 524, 535 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983). This

court does not try the case de novo, resolve conflicts in the evidence, or decide questions

of credibility. See Brainard v. Secretary, 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. Kirk, 667 F.2d at 536. If the Commissioner's decision is

supported by substantial evidence, it must be affirmed even if substantial evidence also

supports the opposite conclusion, Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en

banc), Casey v. Secretary, 987 F.2d 1230 (6th Cir. 1993), and even if the reviewing court

would decide the matter differently, Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir.

1983).

Plaintiff maintains that substantial evidence does not exist on the record that he

remains capable of performing a limited range of sedentary work activity. He also argues

that the ALJ improperly evaluated his credibility, and did not take into consideration all of

his functional limitations. Defendant counters that the claimant retains the residual

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functional capacity for a reduced range of sedentary work because the objective clinical

evidence of record did not confirm the disabling nature of his various impairments.

DISCUSSION AND ANALYSIS

Substantial evidence existed on the record supporting the Commissioner's

conclusion that Plaintiff retained the residual functional capacity for a restricted range of

sedentary work providing a sit-stand option and involving no exposure to frequent

workplace changes, moving machinery or unprotected heights. Contrary to Plaintiff’s

assertion, the medical evidence did not support his allegations of totally disabling pain or

mental difficulties.

The medical record contained little objective medical basis for crediting Plaintiff’s

complaints of disabling symptoms related to back, neck and arm pain. A January 2005

range of motion study indicated normal extremity movement (TR 84). Dr. Richard Kovan

reported in June 2007, that Plaintiff enjoyed full lumbosacral and cervical spine flexibility,

and full ranges of motion in the upper extremities, both knees and hips (TR 192). 

Dr. Kovan found no evidence of muscle atrophy, deformity, erythema, edema or effusion,

and a straight leg raising test was negative (TR 192). An MRI of claimant’s lumbar spine

and right shoulder showed only minor abnormalities (TR 164-165). 

Plaintiff told Dr. Kovan that he experienced only occasional hand, wrist and right

shoulder pain (TR 191). He testified in September 2008, that medications helped alleviate

his joint pain (TR 249). Claimant’s abdominal discomfort was also responsive to medication

(TR 147, 154). The fact that the pain was triggered by food intake (TR 143) suggests that

the condition could be controlled with a proper diet. Significantly, no examining doctor of

record attributed any functional limitations to claimant’s abdominal problems. 

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The ALJ reasonably accommodated Plaintiff’s mental difficulties by limiting him to

simple, routine tasks performed in a non-stressful work environment. He was also restricted

to occasional interactions with the public (TR 19). The Law Judge took into consideration

that fact that Plaintiff could drive, help to care for his children, socially interact with family

members, and respond appropriately to all questions posed to him at the hearing (TR 18).

Plaintiff remained capable of shopping, cooking, housekeeping and caring for his personal

needs (TR 96). The fact that he could play the piano and grow his own marijuana (TR 96,

118, 201-202) suggests that his concentration, persistence and pace were not impaired. 

Plaintiff relies heavily upon the fact that Dr. Brown opined on May 2, 2007, that he

was unable to work on a full time basis (TR 136). It is well settled that opinions of treating

physicians should be given greater weight than those of one-time examining doctors

retained by the government. Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980). However,

the opinion of a treating physician is entitled to deference only if his clinical findings are

uncontradicted by substantial medical or other evidence, and if the opinion is based on

detailed, clinical, diagnostic evidence. Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). 

Since Dr. Brown offered little objective evidence during the relevant period to support his

May 2007, statement of disability2

, his opinion need not have been given any special

weight. Miller v. Secretary, 843 F.2d 221, 224 (6th Cir. 1988). Under these circumstances,

the totality of the evidence must be considered. Landsaw v. Secretary, 803 F.2d 211, 213

(6th Cir. 1986).

 2The doctor failed to provide clinical or diagnostic medical evidence substantiating

his opinion that the claimant could not work on a full time basis. Dr. Brown simply named

medical conditions without indicating their severity (TR 135). In a residual functional

capacity analysis, Dr. Brown also failed to specify the extent to which Plaintiff remained

capable of walking, standing and sitting during an eight hour day (TR 137).

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It is the rare case, the exception, in which every piece of evidence points

incontrovertibly toward a decision to deny benefits. There was evidence in the record

which, taken in isolation, might suggest that the Plaintiff was totally disabled and that him

testimony was fully credible. However, special deference is owed to the credibility findings

of the ALJ, who was the only one who had the opportunity to observe the demeanor of the

witness, evaluate what was said and how it was said, and to consider how that testimony

fit in with the rest of the medical evidence. Such observation is invaluable and should not

be discarded lightly. Beavers v. Secretary, 577 F.2d 383 (6th Cir. 1978). See also

Williamson v. Secretary, 796 F.2d 146, 150 (6th Cir. 1986).

By establishing that he could not return to his past relevant work, the Plaintiff

effectively shifted to the Commissioner the burden of proving that he had the vocational

qualifications to perform alternative jobs in the economy, notwithstanding his various

impairments. The Commissioner, however, met his burden of proving the existence of jobs

which accommodated claimant's known restrictions. In response to hypothetical questions

that took into consideration claimant's educational and vocational background, along with

his significant impairments, the Vocational Expert testified that there were numerous

unskilled sorting, packaging, inspection and bench assembly jobs that he could still perform

with minimal vocational adjustment (TR 255).

These simple, low stress jobs allowed a sit-stand option, and did not expose workers

to high production demands, moving machinery or unprotected heights. They involved only

occasional interaction with the public. There would be no pushing or pulling, and he would

not have to operate foot controls (TR 254-255). Given the objective clinical findings of the

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examining physicians of record, substantial evidence existed on the record that Plaintiff

retained the residual functional capacity for a restricted range of sedentary work activity. 

 In sum, the Commissioner's decision to deny benefits was within the range of

discretion allowed by law and there is simply insufficient evidence for the undersigned to

find otherwise. Accordingly, Plaintiff's Motion for Summary Judgment should be denied,

that of Defendant granted and the instant Complaint dismissed. 

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). Failure to file specific objections constitutes

a waiver of any further right of appeal. United States v. Walters, 638 F.2d 947 (6th Cir.

1981), Thomas v. Arn, 474 U.S. 140 (1985), Howard v. Secretary of HHS, 932 F.2d 505

(6th Cir. 1991). 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. Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th

Cir. 1987), Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir. 1991). 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 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 address specifically, and in the

same order raised, each issue contained within the objections.

s/Donald A,. Scheer

DONALD A. SCHEER 

 UNITED STATES MAGISTRATE JUDGE

DATED: February 23, 2010

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CERTIFICATE OF SERVICE

I hereby certify on February 23, 2010 that I electronically filed the foregoing paper

with the Clerk of the Court sending notification of such filing to all counsel registered

electronically. I hereby certify that a copy of this paper was mailed to the following nonregistered ECF participants on February 23, 2010: Winda Kidd.

s/Michael E. Lang 

Deputy Clerk to 

Magistrate Judge Donald A. Scheer

(313) 234-5217

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