UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

FRANK VENNER, 

 Plaintiff, CIVIL ACTION NO. 09-13428 

v. DISTRICT JUDGE JOHN CORBETT O’MEARA

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 Insurance Benefits (DIB) and

Supplemental Security Income (SSI) benefits on April 4, 2006, alleging that he had become

disabled and unable to work on January 15, 2001, at age 29, due to severe back pain

caused by a herniated lumbosacral disc. Benefits were denied by the Social Security

Administration. A requested de novo hearing was held on October 14, 2008, before

Administrative Law Judge (ALJ) Karen Goheen. The ALJ found that the claimant retained

the residual functional capacity to perform a limited range of sedentary work providing a sitstand option. Corresponding jobs would not require climbing, bending from the waist, power

gripping or moving the head from side to side greater than 45 degrees. The ALJ further

concluded that the claimant should have no exposure to dangerous machinery, unprotected
heights or the general public. Plaintiff was limited to simple, routine duties, given his

difficulties with detailed instructions and maintaining attention and concentration for

extended periods. The Appeals Council declined to review that 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. 

Plaintiff was 36 years old at the time of the administrative hearing (TR 31-32). He

had earned the equivalent of a high school education, and had been employed during the

relevant past as a insulation installer, chairlift operator, dishwasher, hardwood floor installer

and stock person (TR 132). As a floor and insulation installer, he was required to be on his

feet for most of the work day. He had to constantly handle and grasp large objects. He was

required to lift upwards of 100 pounds on a regular basis (TR 34-35). 

Claimant stopped working in January 2001, when he injured his back in a workrelated accident (TR 35). Plaintiff declared that he remained disabled as a result of severe

back pain radiating into his lower extremities (TR 47). Pain medications proved ineffective,

but he did not suffer any side-effects (TR 38, 49). Plaintiff estimated that he could stand for

15 minutes, sit for 20 minutes and walk only short distances before needing to rest

(TR 143). He claimed that he was forced to lie down for several hours each day in order

to get any pain relief (TR 54). The claimant spent his days at home watching television. 

He occasionally helped his girlfriend with housekeeping, but he did not operate an

automobile after his license was suspended for drunk driving (TR 33-34, 41).

A Vocational Expert, Elaine Trippi, classified Plaintiff’s past work as heavy, semiskilled activity (TR 61). The witness testified that there were no jobs for claimant to perform

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if his testimony were fully accepted1

 (TR 63). If he were capable of sedentary work,

however, there were numerous unskilled assembly, inspection and sorting jobs that he

could perform with minimal vocational adjustment (TR 62). These simple, routine jobs

provided a sit-stand option, and did not require much concentration or reading ability. They

did not expose the claimant to moving machinery, unprotected heights or the general public

(TR 61). Postural activities, such as climbing, bending at the waist and moving his head

from side to side, would be minimal (TR 61-62).

LAW JUDGE'S DETERMINATION

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

disorder of the lumbar spine, a herniated nucleus pulposus, degenerative joint disease of

the cervical spine, a history of alcohol and marijuana abuse and an adjustment disorder

with depressed mood, 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 back and neck pain prevented him from sitting, standing or

walking for prolonged periods, and precluded him from climbing, bending, power gripping

or moving his head from side to side. The ALJ further concluded that the claimant should

have no exposure to dangerous machinery or unprotected heights. Plaintiff was limited to

simple, routine duties, given his difficulties with detailed instructions and maintaining

attention and concentration for extended periods. Nevertheless, the Law Judge found that

the claimant retained the residual functional capacity to perform a significant number of

sedentary jobs, as identified by the Vocational Expert.

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The witness opined that, if claimant was required to lie down for most of the day,

all work activity would be precluded (TR 63).

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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 does not challenge the Law Judge’s residual functional capacity evaluation

of his physical ability to perform the exertional demands of sedentary work. Instead, he

argues that the Law Judge’s hypothetical questions to the vocational expert failed to

incorporate all of his mental limitations, particularly his difficulties with maintaining

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concentration, persistence or pace (See pp. 6-13 of Plaintiff’s memorandum in support of

Summary Judgment).

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

simple, unskilled, sedentary work. The medical evidence, as a whole, failed to provide

objective support for Plaintiff’s allegations of severe and totally disabling functional

limitations stemming from his difficulties in maintaining concentration, attention and pace. 

The ALJ fully explained her evaluation of claimant’s mental impairments and

abilities. She found that Plaintiff was limited to “simple and repetitive tasks (due to difficulty

with detailed instructions and maintaining attention and concentration for extended

periods)” (TR 20). The ALJ based her mental residual functional capacity evaluation on the

fact that the claimant could mow the lawn, clean the house, do the laundry and care for

the yard (TR 21 referring to Exhibits 3E, 4E, 12F and 15F). Significantly, none of the

examining physicians opined that the claimant was mentally deficient or had below average

intellectual functioning. 

Dr. Wladimir Zarski, a consulting psychiatrist, reported in July 2006, that Plaintiff had

never been hospitalized for mental symptoms (TR 337). Moreover, Dr. Zarski noted that

the claimant was well oriented, had a good attitude, was cooperative, and did not

experience any delusions or hallucinations (TR 338). The claimant had a good memory,

spelled words correctly and could recall three objects after five minutes (TR 338). Plaintiff

reportedly was able to follow written instructions, as long as they were not too lengthy (TR

143).

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Dr. Leonard C. Balunas, Ph.D., a non-examining state agency psychologist,

reviewed the mental status evaluation from Dr. Zarski before concluding that Plaintiff

retained the ability to perform simple tasks on a sustained basis (TR 341-342). Substantial

evidence supported the ALJ’s finding that, even with moderate difficulties in maintaining

concentration, persistence and pace, Plaintiff could perform unskilled work on a sustained

basis. 

The Law Judge’s hypothetical questions to the Vocational Expert accurately

described Plaintiff’s moderate limitations caused by his adjustment disorder with depressed

mood. There is no merit to Plaintiff’s argument that the ALJ should have included a 

limitation that he had marked limitations in carrying out complex instructions and making

judgments on complex work-related decisions. Unskilled work, by definition, is limited to

understanding, remembering and carrying out only simple instructions requiring little, if any,

judgment. 20 C.F.R. 404.1568(a) (2009). Under these circumstances, the ALJ’s

hypothetical questions accurately portrayed Plaintiff’s impairment. The Vocational Expert

was aware of claimant’s mental limitations before she identified the types of jobs that the

Plaintiff could still perform2 (TR 61-62).

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Moreover, any interpretation that would require vocational experts to evaluate the

effect of medical conditions would be inconsistent with the purpose that vocational experts

serve under social security regulations. Under those regulations, the ALJ is charged with

the responsibility of evaluating the medical evidence and the claimant's testimony to form

an “assessment of [his] residual functional capacity.” 20 C.F.R. § 416.920(a)(4)(iv) (2008), 

The vocational expert testifies on the basis of a claimant's “residual functional capacity and

... age, education, and work experience” and assesses whether the claimant “can make an

adjustment to other work.” 20 C.F.R. § 416.920(a)(4)(v) (2009). The vocational expert's

testimony is directed solely to whether, given a claimant's age, experience, and education,

along with the ALJ's assessment of what he “can and cannot do,” there exist a significant

number of employment opportunities for him in the regional and national economies. The

vocational expert is not expected to evaluate the claimant's medical conditions in making

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 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 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: April 14, 2010

this determination. Indeed, vocational experts are not required to have any medical training,

so any evaluation of medical evidence they perform would be outside their area of

expertise. 

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CERTIFICATE OF SERVICE

I hereby certify on April 14, 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 April 14, 2010: None. 

s/Michael E. Lang 

Deputy Clerk to 

Magistrate Judge Donald A. Scheer

(313) 234-5217

 

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