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

WADE E. MONROE, 

Plaintiff, 

v. CASE NO. 09-CV-11738

COMMISSIONER OF DISTRICT JUDGE PAUL D. BORMAN

SOCIAL SECURITY, MAGISTRATE JUDGE CHARLES E. BINDER

Defendant. 

___________________________/ 

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION1

I. RECOMMENDATION

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

supports the Commissioner’s determination that Plaintiff is not disabled. Accordingly, IT IS

RECOMMENDED that Plaintiff’s Motion for Summary Judgment be DENIED, 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 the undersigned magistrate judge for the purpose of reviewing

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Plaintiff originally appeared on August 16, 2005. The ALJ sent interrogatories to William DeBolt, M.D., to

provide a medical source statement and, after such answers were given, Plaintiff’s counsel requested a supplemental

hearing, which the ALJ permitted. (Tr. at 17-18.)

 3In 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 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. 

2

the Commissioner’s decision denying Plaintiff’s claim for a period of disability and disability

insurance benefits. This matter is currently before the Court on cross-motions for summary

judgment. (Docs. 11, 14.)

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

(Transcript, Doc. 6 at 14, 43.) Plaintiff’s relevant employment history consists of 23 years

working as a machine operator in a factory. (Tr. at 52.) Plaintiff filed the instant claim on October

7, 2005, alleging that he became unable to work on August 21, 2004. (Tr. at 43.) The claim was

denied at the administrative level. (Tr. at 31.) In denying Plaintiff’s claims, the Defendant

Commissioner considered left tibia-fibula fracture and bilateral rotator cuff injury as possible bases

of disability. (Id.)

On December 10, 2007,2

 Plaintiff appeared with counsel before Administrative Law Judge

(“ALJ”) Regina Sobrino, who considered the case de novo. In a decision dated January 25, 2008,

the ALJ found that Plaintiff was not disabled. (Tr. at 20.) Plaintiff requested a review of this

decision on February 8, 2008. (Tr. at 9.)

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

of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004), on March 5, 2009, when, after the review of

additional exhibits3

 (Tr. at 148-49), the Appeals Council denied Plaintiff’s request for review. (Tr.

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at 3-5.) On May 5, 2010, 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 which 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 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) (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.

2005). Accord 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 witnesses, including that of the claimant.”

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007). Accord Cruse v. Comm’r of

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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.”))). See also 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 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, 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

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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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.”);

accord 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). “[Benefits] 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.

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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 Plaintiff 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; 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, 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 her RFC [residual functional capacity] and

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

(g).

D. Administrative Record

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Presumably, “they” refers to the occupational therapist’s conclusion. See infra.

7

The evidence presented to the ALJ reveals that Plaintiff sought treatment with Thomas

Ververka, M.D., for abdominal pain suffered following a car accident in 2004 which caused

spleen, duodenal and small bowel injuries. (Tr. at 107, 103-119.) In September 2005, Plaintiff

underwent a esophagogastroduodenoscopy with a biopsy. (Tr. at 104-05.) The biopsy was

negative. (Tr. at 106.) Dr. Ververka’s post-operative diagnosis was dyspepsia with epigastric

abdominal pain, and gastritis with patent gastrojejunostomy. (Tr. at 104.) Plaintiff also sought

treatment for left shoulder pain with Anthony DeBari, M.D. (Tr. at 145.) 

Plaintiff was also treated by B.D. Behan, M.D., for tibial pillon and calcaneal fractures of

the right ankle. Plaintiff was fitted with an external fixator brace and continued to suffer pain and

discomfort, all of which were caused by the motor vehicle accident in 2004. (Tr. at 132-38.) In

August 2005, Dr. Behan noted that Plaintiff “continues to complain of pain” and “is unable to

ambulate without a cane.” (Tr. at 134.) Dr. Behan also indicated that Plaintiff cannot lift more

than 50 pounds and that “they do not recommend any sustained walking or standing to exceed 10

minutes.” (Id.)

4

Dr. Behan sent Plaintiff to occupational therapy from August 2004 through August 2005

at Bay Regional Medical Center. (Tr. at 74-96.) As part of his therapy, Plaintiff adapted to

wearing an insert in his right shoe. Upon discharge, Plaintiff reported that he tolerated the second

insert but still had pain with sustained walking or standing. (Tr. at 74.) The occupational therapist

noted that Plaintiff could lift 50 pounds but recommended that he not carry anything with two

hands and that he not engage in sustained walking or standing that exceeds 10 minutes. (Tr. at 75.)

In May 2006, Dr. Behan noted that since the right foot insert did not work well, Plaintiff

was given a brace, which did work well and allowed Plaintiff to walk without a cane. (Tr. at 140.)

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In November 2007, Dr. Behan completed a Medical Source Statement wherein he concluded that

Plaintiff has the ability to occasionally and frequently lift, carry or pull up to 20 pounds, sit about

6 hours during an 8-hour day, and is unlimited in his ability to push or pull. (Tr. at 147.) Dr.

Behan also concluded that the above limitations would likely disrupt a regular job schedule with

low physical demands for 40 hours out of 160 hours per month. (Id.) 

A Residual Functional Capacity (RFC) Assessment concluded that Plaintiff can

occasionally and frequently lift or carry up to 10 pounds, stand or walk for at least 2 hours in an

8-hour workday, sit for about 6 hours in an 8-hour workday if allowed to periodically alternate

sitting and standing to relieve pain or discomfort, and is limited in his ability to push or pull in both

upper and lower extremities. (Tr. at 121.) The assessment further concluded that Plaintiff is

occasionally limited in his postural abilities, is limited in his ability to reach in all directions, and

should avoid hazards, but otherwise has no limitations in the manipulative, visual, communicative,

or environmental areas. (Tr. at 122-25.) The assessment also noted that it differed from the

treating source statement submitted by Dr. Behan (which concluded that Plaintiff was permanently

disabled), but further noted that Dr. Behan’s statement was made “in [the] context of describing

[Plaintiff’s] prior job, which he described as labor intensive work.” (Tr. at 126.) The assessment

explains that Plaintiff is “unable to return to [his] prior job” but that Plaintiff is “still capable of

activities described in [the] RFC.” (Tr. at 126.) 

Plaintiff’s daily activity sheets show that Plaintiff is able to care for his own personal needs,

cook, clean, shop, and watch television. (Tr. at 67-69.) Plaintiff testified at the administrative

hearing that he can stand for 15 minutes, walk for 20 or more minutes, uses a cane for long walks,

has no trouble sitting, no trouble using his hands, and is able to lift 10 pounds. (Tr. at 154-55.)

Plaintiff testified that he does some cooking, cleaning, laundry, dishes, a little shopping, bathes and

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dresses himself, takes out the trash, mows the grass on a riding lawn mower, drives a car, and likes

to tinker with “[s]mall motors or anything that I can get my hands on that I can tear apart or put

back together.” (Tr. at 156-58.) Plaintiff also testified that he needs to sit down a couple times a

day and elevate his foot above waist level for about an hour to bring the swelling down. (Tr. at

160-63.) 

The ALJ asked the vocational expert (VE) to consider a person with Plaintiff’s background

and

[a]ssume a person who’s limited to lifting, carrying, pushing, and pulling no more

than 10 pounds frequently, no more than 20 pounds occasionally. Assume a person

who can stand or walk two hours in an eight-hour work day, and sit up to eight hours

in an eight-hour work day. The person should not climb ladders, ropes, or scaffolds.

Should not need to kneel, crouch, or crawl. Assume a person who can rarely climb

stairs. Rarely is not never, but it’s less than a third of the work day. Assume a

person who can occasionally balance and stoop. Assume a person who should not

need to reach overhead. The person should not be exposed to hazards or to

vibration, should not have to operate foot or leg controls. There should be no

exposure to extremes of temperature or humidity. The person should be able to use

a cane to walk and be able to wear an ankle brace while working. The person should

not need to stand on concrete while working, and should not need to walk on uneven

ground. There should be no continuous standing for more than 10 minutes at any

one time.

(Tr. at 164-65.) The VE testified that such a person could not perform Plaintiff’s prior work but

that there are a significant number of light, unskilled jobs in the regional or national economy that

he could perform such as assembler, inspector, cashier, and packer. (Tr. at 165-66.) When the ALJ

asked the VE to consider the additional requirement that a person needs to elevate his leg to waist

level during the work period, rather than on breaks or during the lunch period, the VE stated that

requirement would be inconsistent with the jobs given. (Tr. at 166.) 

E. ALJ Findings

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

found at step one that Plaintiff had not engaged in substantial gainful activity since August 21,

2004, and that he met the insured status requirement through December 31, 2010. (Tr. at 16.) At

step two, the ALJ found that Plaintiff’s residuals of left tibia-fibula fracture and degenerative joint

disease were “severe” within the meaning of the second sequential step. (Tr. at 15-16.) 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 16.) At step four, the ALJ found that Plaintiff could not

perform his past relevant work as a machine operator. (Tr. at 18-19.) At step five, the ALJ found

that Plaintiff possesses the residual functional capacity to perform a limited range of sedentary

work. (Tr. at 19.) Therefore, the ALJ found that Plaintiff was “not disabled.” (Tr. at 19-20.)

F. Analysis & Conclusions

1. Legal Standards

As mentioned, the ALJ determined that Plaintiff possessed the residual functional capacity

to undertake a limited range of light work. (Tr. at 19.) 

Light work involves lifting no more than 20 pounds at a time with frequent lifting

or carrying of objects weighing up to 10 pounds. Even though the weight lifted may

be very little, a job is in this category when it requires a good deal of walking or

standing, or when it involves sitting most of the time with some pushing and pulling

of arm or leg controls. To be considered capable of performing a full or wide range

of light work, you must have the ability to do substantially all of these activities. If

someone can do light work, we determine that he or she can also do sedentary work,

unless there are additional limiting factors such as loss of fine dexterity or inability

to sit for long periods of time. 

20 C.F.R. § 404.1567(b).

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

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

to the consideration of whether substantial evidence supports the ALJ’s decision.

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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 failed to incorporate the Plaintiff’s need to “‘elevate one of

their legs to waist level or above – while they’re supposed to be working’ and the VE testified that

such an individual would not be competitively employed.” (Doc. 11 at 7.) In addition, Plaintiff

argues that the ALJ improperly evaluated the credibility of Plaintiff’s complaints of pain and his

specific need to elevate his foot for an hour or so to avoid swelling. (Doc. 11 at 7-12.) Finally,

Plaintiff contends the ALJ failed to give controlling weight to the opinion of Plaintiff’s treating

orthopedic surgeon Dr. Behan who opined that Plaintiff’s limitations would disrupt a regular job

schedule 40 out of 160 hours per month, rendering Plaintiff unable to sustain a regular work

schedule. (Doc. 11 at 12-14.)

Plaintiff’s contention that the ALJ should not have discounted the credibility of Plaintiff’s

need to elevate his foot for an hour a couple times a day and his contention that the ALJ failed to

incorporate that restriction in the hypothetical are related and will be considered together. If the

ALJ’s decision to find Plaintiff’s need for elevation less than fully credible is supported by

substantial evidence, then the ALJ’s refusal to include that restriction in the hypothetical is, I

suggest, also properly supported. 

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Social Security Regulations prescribe a two-step process for evaluating subjective

complaints of pain. The plaintiff must establish an underlying medical condition and (1) there

must be objective medical evidence to confirm the severity of the alleged pain rising from the

condition or (2) the objectively determined medical condition must be of a severity which can

reasonably be expected to give rise to 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)). If a plaintiff establishes such an impairment,

the ALJ then evaluates the intensity and persistence of the plaintiff’s symptoms. 20 C.F.R. §

404.1529(c); Jones, 945 F.2d at 1369-70. In evaluating the intensity and persistence of subjective

symptoms, the ALJ considers objective medical evidence and other information, such as what may

precipitate or aggravate the plaintiff’s symptoms, what medications, treatments, or other methods

plaintiff uses to alleviate his symptoms, and how the symptoms may affect the plaintiff’s pattern

of daily living. Id.

The issue is whether the ALJ’s credibility determinations are supported by substantial

evidence. An ALJ’s findings based on the credibility of an applicant are to be accorded great

weight and deference, particularly since the ALJ is charged with the duty of observing a witness’s

demeanor and credibility. Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997).

When weighing credibility, an ALJ may give less weight to the testimony of interested witnesses.

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).

In the instant case, I suggest that Plaintiff’s testimony coupled with the medical evidence

of record provides substantial evidence to believe that Plaintiff’s need to elevate his leg is not

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disabling and would not interfere with a daily work schedule. Plaintiff testified that he can stand

for 15 minutes, walk for 20 or more minutes, uses a cane for long walks, has no trouble sitting, no

trouble using his hands, and is able to lift 10 pounds. (Tr. at 154-55.) Plaintiff further testified that

he does some cooking, cleaning, laundry, dishes, a little shopping, bathes and dresses himself,

takes out the trash, mows the grass on a riding lawn mower, drives a car, and likes to tinker with

“[s]mall motors or anything that I can get my hands on that I can tear apart or put back together.”

(Tr. at 156-58.) In addition, the occupational therapist did not note any occupational limitations

other than not engaging in sustained walking or standing that exceeds 10 minutes. (Tr. at 75.)

Furthemore, Dr. Behan’s medical source statement concluded that Plaintiff would be able to sit

about 6 hours during an 8-hour day. (Tr. at 147.) Finally, the RFC Assessment concluded that

Plaintiff could stand or walk for at least 2 hours in an 8-hour workday and sit for about 6 hours in

an 8-hour workday if allowed to periodically alternate sitting and standing to relieve pain or

discomfort. (Tr. at 121.) Therefore, I suggest that the ALJ’s decision not to fully credit Plaintiff’s

statement and resulting decision not to include that limitation in the hypothetical is supported by

substantial evidence. 

As to Plaintiff’s contention that the ALJ failed to give controlling weight to Dr. Behar’s

conclusion that Plaintiff’s limitations would disrupt a regular work schedule 40 out of 160 hours

per month, I suggest that the ALJ’s decision to decline to accord his conclusion any weight is also

supported by substantial evidence. In weighing the opinions and medical evidence, the ALJ must

consider relevant factors such as the length, nature and extent of the treating relationship, the

frequency of examination, the medical specialty of the treating physician, the opinion’s evidentiary

support, and its consistency with the record as a whole. 20 C.F.R. § 404.1527(d)(2)-(6).

Therefore, a medical opinion of an examining source is entitled to more weight than a non2:09-cv-11738-PDB-CEB Doc # 15 Filed 12/16/09 Pg 13 of 16 Pg ID 245
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examining source and a treating physician’s opinion is entitled to more weight than a consultative

physician who only examined the claimant one time. 20 C.F.R. § 404.1527(d)(1)-(2). See also

Rogers, 486 F.3d at 242 (stating that the “treating physician rule,” which provides that “greater

deference is usually given to the opinions of treating physicians than to those of non-treating

physicians,” is a key governing standard in social security cases).

The opinion of a treating physician should be given controlling weight if it is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques” and is “not

inconsistent with the other substantial evidence in [the] case record.” Wilson v. Comm’r of Soc.

Sec., 378 F.3d 541, 544 (6th Cir. 2004); 20 C.F.R. § 404.1527(d)(2). A physician qualifies as a

treating source if the claimant sees the physician “with a frequency consistent with accepted

medical practice for the type of treatment and/or evaluation required for [the] medical condition.”

20 C.F.R. § 404.1502. “The opinion of a non-examining physician, on the other hand, ‘is entitled

to little weight if it is contrary to the opinion of the claimant’s treating physician.’” Adams v.

Massanari, 55 Fed App’x 279, 284 (6th Cir. 2003) (quoting Shelman v. Heckler, 821 F.2d 316, 321

(6th Cir. 1987)).

As noted earlier, Dr. Behan’s medical source statement was incorporated into the

hypothetical except for his conclusion that Plaintiff’s limitations would disrupt his work schedule

for 40 out of 160 hours per month. As indicated in the RFC Assessment, this statement by Dr.

Behan was made “in [the] context of describing [Plaintiff’s] prior job, which he described as labor

intensive work.” (Tr. at 126.) Even if it were not made in reference to Plaintiff’s prior work but

work in general, I suggest that it is not supported by objective medical evidence, and that such a

finding would contradict the doctor’s own objective medical findings and opinions discussed

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above. I therefore suggest that Dr. Behan’s conclusion relating to work schedule disruption was

properly denied controlling weight by the ALJ. Wilson, supra. 

The ALJ’s findings also follow the opinions of the vocational expert which came in

response to detailed and proper hypothetical questions that accurately portrayed plaintiff’s

individual impairments in harmony with the relevant objective record medical evidence and

Plaintiff’s testimony. 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).

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 decisionmakers may go either way without interference from the courts,” Felisky, 35 F.3d

at 1035, as the decision is supported by substantial evidence. 

III. REVIEW

Pursuant to Rule 72(b)(2) of the Federal Rules of Civil Procedure, “[w]ithin 14 days after

being served with a copy of the recommended disposition, a party may serve and file specific

written objections to the proposed findings and recommendations. A party may respond to another

party’s objections within 14 days after being served with a copy.” Fed. R. Civ. P. 72(b)(2). See

also28 U.S.C. § 636(b)(1). 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.

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).

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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. 

 s/ Charles` E Binder 

CHARLES E. BINDER 

Dated: December 16, 2009 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: December 16, 2009 By s/Patricia T. Morris 

Law Clerk to Magistrate Judge Binder

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