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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

THOMAS R. BURGOYNE,

Plaintiff,

v.

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

Case No. 09-11056

DISTRICT JUDGE

ARTHUR J. TARNOW

MAGISTRATE JUDGE 

DONALD A. SCHEER

______________________________/

ORDER REJECTING THE MAGISTRATE JUDGE’S

REPORT AND RECOMMENDATION [20],

DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [18], 

GRANTING IN PART PLAINTIFF’S MOTION FOR SUMMARY

JUDGMENT [15], AND REMANDING THE CASE TO A DIFFERENT

ADMINISTRATIVE LAW JUDGE TO RENDER A DECISION

CONSISTENT WITH THIS ORDER

On March 19, 2009, Plaintiff, a Navy veteran, filed suit seeking judicial review

of the Commissioner’s decision disallowing his claim for Social Security benefits.

Pursuant to Local Rule 72.1(b)(3), “all cases seeking review of a denial of social

security benefits [are] assigned both to a district judge and a magistrate judge.” 

On October 29, 2009, the Magistrate Judge issued a Report and

Recommendation [20] recommending that the Court grant Defendant’s Motion for

Summary Judgment [18] and deny Plaintiff’s Motion for Summary Judgment [15].

On November 11, 2009, Plaintiff timely filed an Objection [21] to the Report and

Recommendation. Defendant failed to filed a Response. Those filings are now before
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the Court. 

For the reasons that follow, the Court REJECTS the Magistrate’s Report and

Recommendation to Grant Defendant’s Motion of Summary Judgment [20], DENIES

Defendant’s Motion for Summary Judgement [18], GRANTS IN PART Plaintiff’s

Motion for Summary Judgment [15], and REMANDS the case to a different

Administrative Law Judge to consider Plaintiff’s application in a manner consistent

with this opinion. 

I. STANDARD OF REVIEW

Judicial review of facts found by the Administrative Law Judge (“ALJ”) is

limited to an evaluation of whether those findings are supported by substantial

evidence and whether the proper legal standards were applied. See Key v. Callahan,

109 F.3d 270, 273 (6th Cir. 1997). The Court must examine the administrative record

as a whole. See Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.

1994). However, the Court does not review the evidence de novo, make credibility

determinations, or weigh the evidence. See Brainard v. Sec’y of Health & Human

Servs., 889 F.2d 679, 681 (6th Cir. 1989). The Court must affirm an ALJ’s decision

if the findings and inferences reasonably drawn from the record are supported by

substantial evidence, even if the record could support a different conclusion. See

Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001).

Under 28 U.S.C. § 636(b)(1), a magistrate judge's orders shall not be disturbed

unless “found to be clearly erroneous or contrary to law.” U.S. v. Curtis, 237 F.3d

598, 603 (6th Cir. 2001). The “clearly erroneous” standard mandates Court affirm the

Magistrate's decision unless, after reviewing the entirety of the evidence, it “is left

with the definite and firm conviction that a mistake has been committed.” Sandles v.
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U.S. Marshal's Service, 2007 WL 4374077 at *1 (E.D. Mich. 2007) (citing U. S. v. U.

S. Gypsum Co., 333 U.S. 364, 395 (1948)). The test is: 

not whether the finding is the best or only conclusion that can be drawn

from the evidence, or whether it is the one which the reviewing court

would draw. Rather the test is whether there is evidence in the record to

support the lower court's finding, and whether its construction of that

evidence is a reasonable one. 

Heights Community Congress v. Hilltop Realty, Inc., 774 F.2d 135, 140 (6th

Cir.1985).

This Court reviews de novo any objections to a Magistrate’s Report and

Recommendation. See 28 U.S.C. § 636(b)(1). Plaintiff has filed an Objection, and

his assignments of error are considered below.

II. PLAINTIFF’S OBJECTIONS

A. Substantial Evidence

The ALJ concluded that substantial evidence demonstrated Plaintiff was not

totally disabled, as he retained the residual functional capacity to perform sedentary

work providing a sit-stand option. In his Report and Recommendation, the Magistrate

concluded that the ALJ’s finding should be affirmed. Plaintiff objects, arguing that

the Magistrate erred when he concluded the ALJ’s decision was consistent with the

specific limitations imposed by Plaintiff’s examining physicians. Plaintiff asserts he

suffers from totally disabling pain and requires frequent rest periods throughout the

day. Plaintiff cites various portions of the record in support of his assertions. 
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The Sixth Circuit has held that an ALJ’s selective inclusion of only portions of

a report which cast Plaintiff in a “capable light” but excludes those portions which

present Plaintiff in a “less than capable light” is an error, because it suggests the ALJ

has only considered part of the report in formulating his conclusion. See Howard v.

Comm’r of Soc. Sec., 276 F.3d 235, 240-241 (6th Cir. 2002); see also Fanning v.

Shalala 1994 WL 706653 at *7 (W.D. Mich. 1994) (“In reaching his conclusion, the

ALJ selectively evaluated portions of the record to the exclusion of others. As a result,

this court cannot conclude that the ALJ's determination was supported by substantial

evidence”); Hopkins v. Comm’r of Soc. Sec., 2009 WL 1360222 at *14 (S.D. Ohio

2009) (“The ALJ may not ignore evidence favorable to plaintiff. Rather, he must

articulate the evidence accepted or rejected when making a disability finding to enable

the reviewing court to engage in meaningful judicial review . . . When, as in this case,

the ALJ fails to mention rejected evidence, the Court is unable to determine if

significant probative evidence was not credited or simply ignored”). 

In this case, there were several instances throughout the ALJ’s decision which,

when viewed together, evidence the ALJ did not consider the entire record. Rather,

he selectively included portions of reports that suggested Plaintiff is capable of doing

sedentary work with a sit-stand option, yet failed to include imperative portions which

favored Plaintiff’s position that he suffers from limitations that further restrict his
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 Although Plaintiff maintains in his objections that the ALJ failed to consider the VA’s

finding regarding Plaintiff’s disability, the ALJ made multiple references to the findings made by

physicians in the 287 pages of medical records from the VA that were included in the record. 

Accordingly, that objection lacks merit. 

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ability to work. 

In support of the ALJ’s decision to deny Plaintiff’s disability claim, the ALJ

relied on various pieces of evidence, including a radiological study of Plaintiff’s

“lumbar spine performed on May 1, 2004 [that revealed] normal alignment of

vertebral bodies, maintained disc spaces and soft tissue areas within normal limits.”

See Tr. at 23, citing Tr. at 234. The ALJ also cited “[a]n MRI of the claimant’s left

knee performed on May 5, 2004 [that revealed] evidence of slight degenerative

changes in the lateral meniscus and evidence of very small joint effusion.” See Tr. at

23. Dr. Nowaczyk referenced this evidence in a report dated May 5, 2004. See Tr.

at 428-431.1

 Although the ALJ also referenced and relied on this evidence in his

decision, he failed to mention that Dr. Nowaczyk’s report stated the following: 

• “These pain medications do interfere with his employability due to their effects

on his sensorium.” See Tr. at 429.

• “There is objective evidence of painful motion, spasm, weakness, and

tenderness over the lumbar spine. Neurological exam, patient does have slightly

decreased sensation below the knee on both right and left to pinprick.” See Tr.

at 429.

• “Patient does show instability . . . being greater than 5mm of motion and
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evaluation of the anterior and posterior cruciate ligaments, medial and lateral

collateral ligaments show no motion... There is some positive point tenderness.

The knee is painful on motion with instability as described.” See Tr. at 429.

• “Additional limitations following repetitive use, patient cannot perform

repetitive use. The flare-ups occur approximately three times per month at

which time, the patient uses Motrin. He is limited an additional 80% due to

pain, fatigue, weakness, and lack of endurance. There is instability of the knee

present on examination.” See Tr. at 429-430 (emphasis added). 

• “Patient evaluation of the hand is also performed. Patient does show additional

limitation and dexterity he has of the right index finger. Evaluation of the hand

as a unit, the hand does have decreased dexterity and pushing, pulling, and

twisting . . . He has decreased flexion [in his right index finger], 60/80

degrees.” See Tr. at 430.

• “Additional limitation of motion, additional function impairments during flareups are greater than 50%.” See Tr. at 430 (emphasis added). 

• “[I]t is the opinion of the medical examiner with the information available to

me at this time that there are medical restrictions on ordinary activities due to

a service-connected back, left knee, right index finger, and hypertension that

would prevent that from performing physical acts required by employment.”

See Tr. at 431. 

Additionally, in support of his decision to deny Plaintiff’s disability claim, the

ALJ relied on two radiology reports performed on January 28, 2003. See Tr. at 166,

167. The ALJ stated, “x-ray studies of the claimant’s left knee . . . reveal very minor

degenerative changes, with no significant abnormalities. In addition, x-rays of the

claimant’s lumbar spine performed on the same date suggest some evidence of

spurring in the lower thoracic vertebrae, but no evidence of any significant
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abnormality.” See Tr. at 22, citing Tr. at 166, 167. However, the ALJ ignored that on

the same day of that hospital visit, Dr. Nowaczyk physically examined Plaintiff. See

Tr. at 169-171. Dr. Nowaczyk stated that “[p]atient does have limited range of

motion in both flexion and extension at the knee joint” and that at his spine, “there is

some tenderness to deep palpation over L4-5.” See Tr. at 170. Dr. Nowaczyk also

noted that Plaintiff’s gait is altered due to his problems with the L4-5 and left knee

and assessed that Plaintiff had a L4-5 disc herniation. See Tr. at 170. 

Furthermore, in support of his conclusion that Plaintiff is capable of doing

sedentary work with a sit-stand option, the ALJ relied on a radiological study of

Plaintiff’s left hip performed on January 21, 2004. The ALJ stated that this study of

the hip was described as “normal.” See Tr. at 23, citing Tr. at 236. The x-ray

performed on Plaintiff’s hip appears to have been ordered in the report by nurse

practitioner Pamela Spencer after an examination done on January 21, 2004. See Tr.

at 236, 457. Although the ALJ relied on the results of the x-ray, he failed to mention

that Spencer’s report also made additional findings regarding Plaintiff, which include:

• “Musculoskeletal, spinous process tenderness noted L4-5 bilaterally with

muscle spasms noted lumbar spine with range of motion testing.” See Tr. at

457.

• “Patient unable to complete range of motion testing left hip due to increased

pain.” See Tr. at 457.
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• “L5-S1 disease herniation with radiculopathy, lower extremities/[s]ignificant

decreased daily functioning activities.” See Tr. at 457. 

Finally, in support of the ALJ’s decision to deny Plaintiff’s disability claim, the

ALJ relied on a report by Dr. Beltran dated September 28, 2004. See Tr. at 359-360.

Although the ALJ stated, “[s]pecifically, Dr. Beltran notes that the claimant

demonstrated no evidence of motor deficits or paresthesias” (See Tr. at 23, citing Tr.

at 359 (emphasis added)), Dr. Beltran’s report explicitly stated, “[Claimant’s] initial

evaluation was unrevealing. However there was some paresthesias identified on

examination.” See Tr. at 359 (emphasis added). The ALJ also failed to mention Dr.

Beltran’s report stated that Plaintiff experienced “some pain with lower extremity

testing and lumbar spine with some decrease in range of motion” and “reflexes were

diminished.” See Tr. at 360. 

Thus, the ALJ failed to consider the full record and entirety of the reports he

relied on in reaching his determination that Plaintiff retained the residual functional

capacity to perform a significant range of sedentary activity that requires lifting and

carrying up to ten pounds, sitting for up to six hours, and standing and walking up to

two hours during an eight hour work day. As a result, this Court is unable to

conclude that his determination was supported by substantial evidence. 
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 Plaintiff also asks this Court in his objections to find that Dr. Foster’s opinion regarding

Plaintiff’s condition be given deference, as Dr. Foster is allegedly his treating physician. Even if

this Court were to conclude that he was Plaintiff’s treating physician, the ALJ properly found

that Dr. Foster’s opinion regarding Plaintiff’s functional capacity was not entitled to deference

since his determination stated in his June 30, 2003 letter was not supported with objective

medical evidence in the record during the relevant time period eligibility for benefits were

assessed. 

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 Since the Appeals Council has already remanded the case to the ALJ for further

consideration, thus giving him two opportunities to review Plaintiff’s application for

benefits, this Court concludes that upon remand, it is appropriate that this matter be

referred to a different ALJ. On remand, the new ALJ is to render a decision which

takes into account the record as a whole and does not selectively rely on only certain

findings in reports without explaining why other portions of the same report are to be

rejected.2

B. Credibility

Plaintiff objects that the ALJ failed to properly assess his credibility. Plaintiff

maintains that the pain he experiences impacts his residual functional capacity and

restricts him from performing the range of sedentary work that the ALJ concluded he

could perform. 

As the Sixth Circuit has noted, “It is of course for the ALJ, and not the

reviewing court, to evaluate the credibility of witnesses, including that of the
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claimant.” See Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007). In

assessing credibility: 

Social Security Ruling 96-7p . . . requires the ALJ [to] explain his

credibility determinations in his decision such that it ‘must be

sufficiently specific to make clear to the individual and to any

subsequent reviewers the weight the adjudicator gave to the

individual's statements and the reasons for that weight.’ In other

words, blanket assertions that the claimant is not believable will

not pass muster, nor will explanations as to credibility which are

not consistent with the entire record and the weight of the relevant

evidence.

Id. at 248; see also Mendoza v. Astrue, 2009 WL 5062103 at *6 (S.D. Ohio 2009)

(Court remands case to ALJ after finding that proper credibility findings were not

made).

In initially making his determination regarding disability, the ALJ found that

Plaintiff’s allegations regarding his pain and limitations were not totally credible.

Upon review of the decision by the Appeals Council, the case was remanded to the

ALJ with the order that the ALJ’s decision “contain specific reasons for the credibility

findings, supported by the evidence of record, and [the decision] must be sufficiently

specific to make clear the weight given the individual’s statements and the reason for

that weight.” See Tr. at 37. 

Following the remand, the ALJ issued a decision barely addressing the issue of

credibility, simply stating in a single sentence that “[a]fter considering the evidence
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 Moreover, the Magistrate Judge relied heavily on the ALJ’s credibility findings in

recommending that this Court affirm the ALJ’s decision, noting that although he agreed with the

ALJ’s finding that there was evidence in the record that Plaintiff was totally disabled and that his

testimony was fully credible, the ALJ’s decision was not to be affirmed because “special

deference is owed to the credibility findings of the ALJ . . . .” See Report and Recommendation

at 7. While deference is typically given to the ALJ’s findings, such deference is not appropriate

where the credibility findings lack the specificity required by SSR 96-7p. 

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of record, the undersigned finds that the claimant’s medically determinable

impairments could reasonably be expected to produce the alleged symptoms, but the

claimant’s statements concerning the intensity, persistence and limiting effects of

these symptoms are not entirely credible.” See Tr. at 24-25. The ALJ does not

express to the Court the part(s) of the record the ALJ considered pertinent to assessing

Plaintiff’s credibility. Plaintiff’s credibility is particularly relevant in this case since

his subjective complaints regarding the frequency, intensity, and limiting effects can

serve to support the objective evidence in the record.3

 

As noted above, Dr. Nowaczyk’s report states that “[t]he flare-ups occur

approximately three times per month . . . [and Plaintiff] is limited an additional 80%

due to pain, fatigue, weakness, and lack of endurance.” See Tr. at 429. Furthermore,

the record indicates that another physician, Dr. Haddad, stated that Plaintiff’s back

“exacerbations . . . occur one to three times a month.” See Tr. at 256. These doctor’s

reports are important because they provide guidance on the limiting effects and

frequency of Plaintiff’s pain, and call into question the ALJ’s assessment of Plaintiff’s
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 Additionally, in assessing the residual functional capacity, the ALJ is to consider

Plaintiff’s obesity and use of assistive devices to ambulate, as “the residual functional capacity

assessment must be based on all of the relevant evidence in the case record . . . .” See Tr. at 37.

The ALJ noted in his decision Plaintiff’s use of such devices, but is unclear how such devices

impact the sit-stand at will option. 

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residual functional capacity. The vocational expert testified that if Plaintiff requests

to be off work, or leaves work early once every two weeks, then he is not eligible for

the any of the jobs she identified. See Tr. at 600. It would then follow that if Plaintiff

suffers flare-ups approximately three times a month, then he would be unable to

perform the jobs identified by the vocational expert. 

A full assessment of Plaintiff’s residual functional capacity requires specific

credibility findings. The ALJ erred in failing to explain his credibility determinations

with specificity. Therefore, the Court remands this case to a new ALJ to reassess

Plaintiff’s credibility and support his specific credibility findings with evidence, as

well as reevaluate if any sedentary work is available for Plaintiff.4

III. CONCLUSION

Having reviewed the administrative file, the motions, the Magistrate’s Report

and Recommendation, and Plaintiff’s objections, for the reasons stated above, this

Court REJECTS the Magistrate’s Report and Recommendation [20], DENIES

Defendant’s Motion for Summary Judgment [18], GRANTS IN PART Plaintiff’s
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Motion for Summary Judgment [15], and REMANDS this case to a new

Administrative Law Judge to render a decision which includes all of the limitations

indicated by Plaintiff’s physicians, specific reasons supported by evidence in the

record regarding Plaintiff’s credibility finding, and a determination as to whether

Plaintiff is able to perform sedentary work. 

IT IS SO ORDERED. 

S/ARTHUR J. TARNOW 

Arthur J. Tarnow

United States District Judge

Dated: March 15, 2010

I hereby certify that a copy of the foregoing document was served upon counsel of

record on March 15, 2010, by electronic and/or ordinary mail.

S/LISA M. WARE 

Case Manager