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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

THOMAS J. MCCOY,

Plaintiff Civil Action No. 09-11897

v. 

 District Judge Marianne O. Battani

Magistrate Judge R. Steven Whalen 

COMMISSIONER OF SOCIAL 

SECURITY,

Defendant.

_________________________________/

REPORT AND RECOMMENDATION

Plaintiff Thomas J. McCoy brings this action under 42 U.S.C. §405(g) challenging a

final decision of Defendant Commissioner denying his application for Supplement Security

Income under the Social Security Act. Both parties have filed motions for summary

judgment which have been referred for a Report and Recommendation pursuant to 28 U.S.C.

§636(b)(1)(B). For the reasons set forth below, I recommend that Defendant’s motion be

GRANTED and Plaintiff’s motion DENIED.

PROCEDURAL HISTORY

On April 27, 2005, Plaintiff applied for Supplemental Security Income (“SSI”)

alleging a disability onset date of December 7, 2002 (Tr. 206-208). After the initial denial

of the claim, he requested an administrative hearing, held before Administrative Law Judge
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(“ALJ”) Ethel Revels in Detroit, Michigan on January 15, 2008 (Tr. 217). Plaintiff,

represented non-attorney Karl E. Brown, testified (Tr. 223-254), as did Vocational Expert

(“VE”) Lois Brooks (Tr. 254-259). On January 25, 2008, ALJ Revels found Plaintiff not

disabled (Tr. 21). On March 12, 2009, the Appeals Council denied review (Tr. 4-6).

Plaintiff filed for judicial review of the final decision on May 18, 2009.

BACKGROUND FACTS

Plaintiff, born May 2, 1967, was 40 when ALJ Revels issued her decision (Tr. 21,

206). He completed 11th grade and worked previously as a meat packer and a stocker (Tr.

77). He alleges disability as a result of right hip problems, hearing loss, ankle surgery, right

hand fractures, learning disabilities, and dislocated discs of the neck and back (Tr. 76). 

A. Plaintiff’s Testimony

Plaintiff testified that his past relevant work included jobs as a short order cook,

setting molds for manhole covers, and performing assembly work for a steel company,

adding that he worked his way up from sweeping floors to the assembly job (Tr. 223-224).

Plaintiff reported that the assembly job did not require lifting more than five pounds (Tr.

227). Plaintiff also reported temporary work running a machine that manufactured rear

windshield wiper components (Tr. 228). In addition, Plaintiff testified that he worked as a

kitchen helper and meat packer (Tr. 231). 

Plaintiff indicated that during his school years, he experienced both concentrational

and cognitive problems (Tr. 232). He alleged that he currently experienced nightmares,

anxiety, mood swings, and anger management problems (Tr. 233). He reported that he had
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been unable to work since a December, 2002 car accident resulting in an inability to stand

for extended periods and pinched nerves in his lumbar spine (Tr. 233). Plaintiff also reported

intense headaches three to four times each week (Tr. 234). He indicated that he coped with

headache and back pain by taking Motrin and applying an ice pack to his neck (Tr. 235). 

Plaintiff testified that he was hospitalized for psychiatric problems after slashing his

wrists as a teenager (Tr. 236). He also reported that as an adult, he had himself committed

after trying to overdose on pills (Tr. 237). He reiterated however that the alleged disability

was the result of injuries sustained in the December, 2002 car accident (Tr. 237). He stated

that he required frequent position changes as a result of back, leg, and neck discomfort (Tr.

238). Noting that he was trying to limit his intake of Motrin and Vicodin, Plaintiff reported

that his condition obliged him to recline for three to four hours most days (Tr. 238-240). 

Plaintiff denied performing household chores (Tr. 240). Acknowledging a history of

drinking problems, he denied current alcohol or drug use (Tr. 240-241). He reported that he

had given up trying to launder his own clothes and relied on his son to grocery shop for him

(Tr. 241-242). Noting that he spent most of his waking hours watching television or listening

to CDs, Plaintiff testified that he occasionally read a newspaper (Tr. 242). He alleged sleep

disturbances and mood swings, attributing these conditions to a bipolar disorder (Tr. 244).

Admitting that he had worked for many years while on psychotropic medication, Plaintiff

noted that his recent attempts to wean himself from the medication had led to behavioral

problems (Tr. 244). 

Plaintiff estimated that he could sit for a maximum of 20 minutes, stand for 45, and
1

 GAF scores of 51-60 indicate moderate symptoms (occasional panic attacks) or

moderate difficulty in social, occupational, or school functioning. American Psychiatric

Association, Diagnostic and Statistical Manual of Mental Disorders--Text Revision at 34

(DSM-IV-TR ) (4th ed.2000).

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walk for half a block (Tr. 245). He testified that as a result of his fear of falling, he had

requested a cane from his physician several months earlier (Tr. 247). He alleged writing

problems as a result of a right hand fracture occurring sometime between 1992 and 1996 (Tr.

248). Plaintiff reported that a pinched nerve in his neck precluded climbing (Tr. 253). 

B. Medical Records

1. Treating Sources

 Emergency room notes show that Plaintiff reported chest pain and anxiety in April,

2002 (Tr. 116). In December, 2002, Plaintiff sought emergency treatment after a car accident

(Tr. 105-112). Imaging studies show a Grade II spondylolisthesis at L5 and S1 but no

evidence of a fracture (Tr. 110). Medical records from January, 2004 show that Plaintiff

sustained a concussion but a CT scan of the head was normal (Tr. 139, 145). Imaging studies

of the cervical spine showed mild spondylosis (Tr. 132). Plaintiff denied back pain (Tr. 127).

November, 2004 mental health treating notes indicate a history of a bipolar disorder (Tr. 146,

149). Plaintiff exhibited normal speech and appearance with an anxious affect (Tr. 148). He

was assigned a GAF of 50 to 551

 (Tr. 149). 

In May, 2007, Wook Kim, M.D. treated Plaintiff at the request of a treating physician

(Tr. 196). Dr. Kim, observing that a recent MRI of the back was normal, found “pain and

tenderness in the lower lumbar paraspinal muscles” (Tr. 196). Dr. Kim administered a
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cervical facet joint nerve block without complications (Tr. 197). Nerve conduction studies

of the lower extremities showed radiculopathy at L5 and S1 right, but “no evidence of lumbar

[r]adiculopathy or peripheral polyneuropathy” (Tr. 202). Upper extremity studies showed

radiculopathy at C6 left but the absence of cervical radiculopathy, peripheral polyneuropathy,

Carpal Tunnel Syndrome (“CTS”) or ulnar neuropathy (Tr. 203). Dr. Kim administered a

lumbar facet joint nerve block in June and July, 2007 (Tr. 199-200). In July, 2007, he

renewed Plaintiff’s prescription for Vicodin (Tr. 199). 

In January, 2008, Dr. Kim found that Plaintiff was limited to lifting 10 pounds, sitting

for four hours a day and standing for two with a preclusion on walking (Tr. 204). He 

precluded all climbing, stooping crouching, pushing/pulling, but found that Plaintiff could

balance, bend, crawl, reach, and handle on an occasional basis (Tr. 204). He opined that

Plaintiff was unable to perform any full-time work (Tr. 204). 

2. Consultive and Non-examining Sources

 In July, 2005, Thomas S. Rosenbaum, Ph.D. performed a consultive psychological

examination at the request of Plaintiff’s attorney (Tr. 151). Dr. Rosenbaum remarked that

Plaintiff had not worked since the December 7, 2002 car accident, noting that Plaintiff

alleged exertional limitations as a result of a pinched nerve (Tr. 151). Acknowledging a

history of mood swings, depression, and panic attack from the age of 16, Dr. Rosenbaum

noted that Plaintiff attended regular classes until dropping out of school after 11th grade (Tr.

151, 153). He remarked that Plaintiff had been receiving psychiatric treatment since

September, 2004 (Tr. 152). Plaintiff exhibited normal conversation skills, normal self-
2

A GAF score of 41-50 indicates "[s]erious symptoms ... [or] serious impairment in

social, occupational, or school functioning," such as inability to keep a job. American

Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders--Text

Revision, 34 (DSM-IV-TR ) (4th ed.2000).

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esteem and appropriate hygiene (Tr. 154-155). He denied suicidal ideation, but admitted

that he was depressed that he was unable to work (Tr. 155-156). Intelligent tests indicated

that Plaintiff’s functioning was borderline normal or slow (Tr. 157). Noting Plaintiff’s

allegations of back and neck problems as well as borderline intellectual functioning, Dr.

Rosenbaum assigned Plaintiff a GAF of 452

 (Tr. 159). In an accompanying “Mental

Capacities Evaluation,” Dr. Rosenbaum deemed Plaintiff moderately to severely impaired

in all areas of psychological functioning (Tr. 161-162). 

A Psychiatric Review Technique performed the following month on behalf of the

SSA found the presence of a bipolar disorder and anxiety (Tr. 167, 170, 172). Under the “B

Criteria,” Plaintiff was deemed moderately limited in activities of daily living and

maintaining concentration, persistence, and pace but no episodes of decompensation (Tr.

177-178). A Mental Residual Functional Capacity Assessment completed by the same

individual found that Plaintiff’s work-related mental limitations consisted of a moderately

impaired ability to “understand and remember detailed instructions,” concentrate for

extended periods, and “respond appropriately changes in the work setting” (Tr. 163-164).

The Assessment concluded that Plaintiff could “do simple work on [a] sustained basis with

[adequate] pace and [endurance]” (Tr. 165). 

In October, 2005, Ashok Gupta performed a consultive medical examination of
3

20 C.F.R. § 404.1567(a-d) defines sedentary work as “lifting no more than 10 pounds

at a time and occasionally lifting or carrying articles like docket files, ledgers, and small

tools; light work as “lifting no more than 20 pounds at a time with frequent lifting or

carrying of objects weighing up to 10 pounds;” medium work as “lifting no more than 50

pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds;” and

that exertionally heavy work “involves lifting no more than 100 pounds at a time with

frequent lifting or carrying of objects weighing up to 50 pounds.

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Plaintiff (Tr. 181). Dr. Gupta found that Plaintiff’s level of discomfort as a result of his

physical condition was moderate to severe with weakness and fatigue causing moderate

difficulty (Tr. 182). He found that Plaintiff was limited to sitting for five hours a day and

standing or walking for four with no more than five pounds lifting (Tr. 184). In the

dominant hand, Plaintiff was capable of simple grasping for six hours a day; pushing/pulling

for four; fine manipulations, three; and above shoulder reaching, four (Tr. 184-185). Dr.

Gupta found that aside from a half hour lunch, Plaintiff required one 10-minute rest period

(Tr. 185). 

The same month, a Physical Residual Functional Capacity Assessment found that

Plaintiff could lift twenty pounds occasionally and ten pounds frequently; sit, stand, or walk

for up to six hours in an eight-hour workday; and push and pull without limitation (Tr. 189).

Plaintiff was limited to occasional climbing, stooping, kneeling, crouching, and crawling

and frequent (as opposed to constant ) balancing (Tr. 190). The Assessment found the

absence of manipulative, visual, communicative, or environmental limitations, concluding

that Plaintiff was capable of performing exertionally light work3

 (Tr. 189-191). 

 C. VE Testimony
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VE Lois Brooks classified Plaintiff’s past relevant work as a machine feeder as

unskilled at the light exertional level; kitchen helper, unskilled/light to medium; and short

order clerk, semiskilled/light(Tr. 254-255). 

The ALJ then posed the following question, taking into account Plaintiff’s age,

education level, and work experience: 

“Assume . . . that our hypothetical claimant needs additional limitations for a

sit/stand option, one that will not require sitting more than 30 minutes at a

time, standing more than 30 minutes at a time and walking a half a block.

However our hypothetical claimant can walk and stand six out of eight hours,

lift ten pounds frequently, and 20 pounds occasionally. That work however,

must be simple repetitive type tasks because there are moderate limitations in

the ability to maintain concentration for extended periods due to pain as well

as moderate limitations in the ability to carry out detailed instructions due to

the depression and there is also a learning disability. The work must not

require reading and calculation. . . . No more than minimum reading and

calculations. That work also [must] not involve any climbing or scaffolds,

ropes or ladders. No frequent climbing of stairs and ramps. The work must

not involve frequent bending. If you assume that, what jobs, if any, would our

hypothetical claimant be vocationally qualified to perform?”

(Tr. 256). 

 VE testified that given the above limitations, the individual could perform work

assembling (4,200 positions in the region of southeastern Michigan), “inspecting sorting”

(3,000), and packaging (2,500) (Tr. 256). The VE testified that if the hypothetical individual

was obliged to use a cane, the job numbers would be unchanged (Tr. 257). However, if the

individual was unable to grip repetitively with the dominant hand, all of the above jobs would

be precluded (Tr. 257). The VE stated that his findings were consistent with the information

found in the Dictionary of Occupational Titles (“DOT”) (Tr. 258). 
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In response to questioning by Plaintiff’s attorney, the VE testified that if the individual

was also encumbered by the need to rest for two hours a day and the inability to stand, sit, or

walk for more than six hours at a time, all full-time work would be precluded (Tr. 258-259).

D. The ALJ’s Decision

 ALJ Revels found that although Plaintiff’s conditions of “a back disorder, a neck

disorder, bipolar disorder, learning disorder, anxiety disorder, and polysubstance dependence -

in remission” were severe impairments under 20 C.F.R. § 404.1520(c), none of the conditions

met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P,

Appendix 1 (Tr. 14-15). 

The ALJ determined that although Plaintiff was unable to perform his past relevant

work, he retained the following residual functional capacity (“RFC”): 

 “[T]o perform work that allows a sit/stand option that does not require sitting

more than 30 minutes or standing more than 35 minutes at a time; stand or walk

for six of eight hours in an eight-hour workday; lift 10- pounds frequently and

20 pounds occasionally; perform simple, routine, repetitive tasks due to

moderate limitations in the ability to maintain concentration because of pain

and moderate limitations in the ability to understand, remember, and carry out

detailed instructions because of depression and learning disorder; perform work

that requires no more than minimal reading and calculations; perform no

climbing of scaffolds, ropes, or ladders and no frequent climbing of stairs or

ramps; perform no work at hazardous heights or around dangerous machinery;

perform no frequent bending; and perform work that allows use of a cane”

(Tr. 16). 

 The ALJ found that Plaintiff was unable to perform his past relevant work but was

capable of performing a significant number of other jobs, citing the VE’s job findings supra

(Tr. 20-21). 
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The ALJ found Plaintiff’s claims “not entirely credible,” noting that his hand fracture

did not prevent him from later working as a short-order cook (Tr. 18). She observed that

although Plaintiff alleged that he needed a cane, he had only fallen on four or five occasions

since December, 2002 (Tr. 19). The ALJ cited January, 2004 emergency treatment records

indicating that Plaintiff denied back pain (Tr. 19). She noted that Plaintiff’s exclusively nonsurgical treatment stood at odds with his claim of disability (Tr. 19). 

 STANDARD OF REVIEW

 The district court reviews the final decision of the Commissioner to determine whether

it is supported by substantial evidence. 42 U.S.C. §405(g); Sherrill v. Secretary of Health and

Human Services, 757 F.2d 803, 804 (6th Cir. 1985). Substantial evidence is more than a

scintilla but less that a preponderance. It is “such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401,

91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.

197, 229, S. Ct. 206, 83 L.Ed.126 (1938)). The standard of review is deferential and

“presupposes that there is a ‘zone of choice’ within which decision makers can go either way,

without interference from the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)(en

banc). In determining whether the evidence is substantial, the court must “take into account

whatever in the record fairly detracts from its weight.” Wages v. Secretary of Health &

Human Services, 755 F.2d 495, 497 (6th Cir. 1985). The court must examine the

administrative record as a whole, and may look to any evidence in the record, regardless of

whether it has been cited by the ALJ. Walker v. Secretary of Health and Human Services, 884
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F.2d 241, 245 (6th Cir. 1989).

 FRAMEWORK FOR DISABILITY DETERMINATIONS

 Disability is defined in the Social Security Act as the “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). In

evaluating whether a claimant is disabled, the Commissioner is to consider, in sequence,

whether the claimant: 1) worked during the alleged period of disability; 2) has a severe

impairment; 3) has an impairment that meets or equals the requirements of an impairment

listed in the regulations; 4) can return to past relevant work; and 5) if not, whether he or she

can perform other work in the national economy. 20 C.F.R. §416.920(a). The plaintiff has

the burden of proof as steps one through four, but the burden shifts to the Commissioner at

step five to demonstrate that, “notwithstanding the claimant's impairment, he retains the

residual functional capacity to perform specific jobs existing in the national economy.”

Richardson v. Secretary of Health & Human Services, 735 F.2d 962, 964 (6th Cir.1984).

ANALYSIS

A. The Analyses of Treating and Examining Sources 

1. Dr. Kim

Plaintiff contends that the ALJ erred in discounting Dr. Kim’s disability opinion.

Plaintiff’s Brief at 10-16, Docket #10. He disputes the ALJ’s finding that Dr. Kim’s opinion

was not well supported by objective medical evidence, citing the treating physician’s clinical
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observations. Id. at 12. 

 “If uncontradicted, the [treating] physicians' opinions are entitled to complete

deference.” Jones v. Secretary of Health and Human Services, 945 F.2d 1365, 1370 (FN 7)(6th

Cir. 1991). “[I]f the opinion of the claimant's treating physician is well-supported by

medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with

the other substantial evidence in [the] case record, it must be given controlling weight.”

Hensley v. Astrue, 573 F. 3d 263, 266 (6th Cir. 2009)(internal quotation marks omitted)(citing

Wilson v. Commissioner of Social Sec. 378 F.3d 541, 544 (6th Cir. 2004));20 C.F.R. §

404.1527(d)(2)). Further,

“[i]f the opinion of a treating source is not accorded controlling weight, an ALJ

must apply certain factors--namely, the length of the treatment relationship and

the frequency of examination, the nature and extent of the treatment

relationship, supportability of the opinion, consistency of the opinion with the

record as a whole, and the specialization of the treating source--in determining

what weight to give the opinion.” 

Wilson, at 544. However, in the presence of contradicting substantial evidence, the ALJ may

reject all or a portion of the treating source’s findings. Warner v. Commissioner of Social

Sec., 375 F.3d 387, 391 -392 (6th Cir. 2004). 

Contrary to Plaintiff’s claim, the ALJ complied with the procedural and substantive

requirements of Wilson in rejecting Dr. Kim’s opinion of disability. The ALJ, noting that the

treating relationship began in May, 2007, observed that Dr. Kim saw Plaintiff on three

occasions only in May through July, 2007 before making his January, 2008 disability
4

http://www.sportsinjuryclinic.net/cybertherapist/back/lowback/spondylolisthesis.h

tm;http://backandneck.about.com/od/conditions/p/spondylolisthes.htm.

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pronouncement (Tr. 19). The ALJ permissibly noted that “lumbar and cervical spine x-rays,

the EMG studies, and a lumbar spine MRI,” did not support the conclusion that Plaintiff was

capable of less than sedentary work (Tr. 20). 

Specifically, Plaintiff faults ALJ for overlooking an MRI showing a grade 2

spondylolisthesis and Dr. Kim’s clinical observations which would support the disability

opinion. Plaintiff’s Brief at 13. This argument fails for several reasons. First, Plaintiff’s

diagnosis of grade 2 spondylolisthesis (as opposed to grades 3 or 4) is not synonymous with

disability. Grade 2 patients are generally treated with conservative measures and can return

to normal activities once they have “good core strength.”4

 Second, the ALJ noted that

Plaintiff had received only conservative (non-surgical) treatment since the December, 2002

car accident and admitted that prescribed pain killers relieved his back discomfort (Tr. 19).

Third, the ALJ pointed out that the October, 2005 Residual Functional Capacity Assessment,

standing at odds with Dr. Kim’s disability opinion, was better supported by objective medical

evidence. There was no error in the ALJ’s rejection of Dr. Kim’s January, 2008 assessment.

2. Dr. Gupta

Plaintiff concedes the ALJ’s finding that Dr. Gupta was a one-time examining source

rather than a treating source. Plaintiff’s Brief at 12-13. Nonetheless, he argues that the ALJ

impermissibly rejected Dr. Gupta’s opinion on the basis that it was placed below the

letterhead of Plaintiff’s former attorney, contending that this was an insufficient basis to
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discount the opinion. Id. at 12. 

 Because Dr. Gupta performed only a one-time consultive examination, “the treating

physician doctrine simply does not apply here.”Barker v. Shalala, 40 F.3d 789, 794 (6th Cir.

1994). As such, Dr. Gupta’s findings were “entitled to no special degree of deference.” Id.

(citing Atterberry v. Secretary of Health & Human Servs., 871 F.2d 567, 572 (6th Cir.1989)).

 Moreover, I disagree with Plaintiff’s contention that the ALJ summarily rejected the opinion

solely on the basis that the physician had been hired for the purpose of bolstering the

disability claim. The ALJ noted that the examining physician’s opinion was not supported

by objective medical evidence or Plaintiff’s history of conservative treatment (Tr. 19).

Although in rejecting Dr. Gupta’s findings, the ALJ did not delve into the level of detail

allotted to Dr. Kim, she noted on the same page that 1) Plaintiff admitted that medication

relieved his back and neck pain 2) January, 2004 emergency treatment notes state that he

denied back pain 3) he sought treatment on a sporadic basis only (Tr. 19). The ALJ noted

elsewhere in the opinion that objective testing, including CT scans, EMG studies, and MRI

studies did not support the conclusion that Plaintiff was disabled (Tr. 18). 

3. Dr. Rosenbaum

Plaintiff also faults the ALJ for rejecting Dr. Rosenbaum’s findings of borderline

intelligence. Plaintiff’s Brief at 13-14. Contrary to Plaintiff’s contention, the ALJ adequately

supported her reasons for rejecting Dr. Rosenbaum’s opinion with record evidence. She noted

that Plaintiff appeared “healthy, well-groomed, alert, and cooperative” at a November, 2004
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psychological examination (Tr. 18). She acted within her discretion in rejecting Dr.

Rosenbaum’s GAF of 45, noting elsewhere in the opinion that Plaintiff’s relatively static

history of emotional and cognitive problems had not prevented him from performing

semiskilled and unskilled work for many years before the December, 2002 car accident (Tr.

19). Indeed, Dr. Rosenbaum noted that Plaintiff exhibited normal conversation skills, normal

self-esteem and appropriate hygiene (Tr. 154-155). Dr. Rosenbaum’s finding that Plaintiff

was moderately to severely impaired in all areas of psychological functioning stands at odds

with his own examination notes as well as the record as a whole. As such, the ALJ did not

err in discounting his opinion (Tr. 161-162). 

B. The Credibility Determination

 The ALJ’s reasons for rejecting Drs. Kim, Gupta, and Rosenbaum’s assessments also

support her determination that Plaintiff claims were not fully credible (Tr. 18). Contrary to

Plaintiff’s assertion that the ALJ did not comply with the requirements of SSR 96-7p, her

findings concerning claims of both physical and mental abilities are well supported by

substantial evidence. 

 The credibility determination, guided by SSR 96-7p, describes a two-step process for

evaluating symptoms. See also Duncan v. Secretary of Health and Human Services, 801 F.2d

847, 853 (6th Cir. 1986). “First, the adjudicator must consider whether there is an underlying

medically determinable physical or mental impairment. . .that can be shown by medically

acceptable clinical and laboratory diagnostic techniques.” Id. Second, SSR 96-7p directs that
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whenever a claimant’s allegations regarding “the intensity, persistence, or functionally

limiting effects of pain or other symptoms are not substantiated by objective medical

evidence,” the ALJ must analyze his testimony “based on a consideration of the entire case

record.” C.F.R. §404.1529(c)(3) lists the factors to be considered in making a credibility 

determination, including daily activities, “precipitating and aggravating factors,” treatment

received for relief of symptoms, and additional considerations relevant to functional

limitations. 20 C.F.R. § 404.1529(c)(3). 

 The ALJ noted that claims of manipulative impairments because of an old hand

fracture stood at odds with Plaintiff’s post-fracture ability to work as a short-order cook

flipping omelettes (Tr. 18). She cited Plaintiff’s testimony that medications eliminated his

pain (Tr. 18). She noted that x-rays showing a grade 2 spondylolisthesis, discussed above,

showed no fractures or herniations (Tr. 18). The ALJ observed that in January, 2004, Plaintiff

denied back pain and in fact, imaging studies showed “only mild spondylosis” (Tr. 18).

Acknowledging nerve conduction studies showing left C6 radiculopathy and right L5 and S1

neuropathy, but “no evidence” of CTS, peripheral neuropathy, or ulnar neuropathy, the ALJ

remarked that Dr. Kim deemed a lumbar spine MRI “normal” (Tr. 18). Although Plaintiff

testified that he needed a cane to prevent falling, the she noted that he reported only four or

five falls since December, 2002 (Tr. 19).

 Plaintiff criticizes the ALJ for citing his marijuana and alcohol use, contending that

it was not a proper basis for rejecting his claims. First, this observation was one of many
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factors that the ALJ used to discount Plaintiff’s credibility. Moreover, she was entitled to

note that the November, 2004 statement admitting to current alcohol and drug use stood at

odds with Plaintiff’s testimony (Tr. 240-241). Second, as noted above, Plaintiff’s ability to

work despite a long-term mental condition before December, 2002 undermines his current

claim that his psychological problems preclude all work (Tr. 19). Because there is no support

for the argument that the ALJ performed an inadequate credibility analysis or applied the

wrong legal standard, the deference generally accorded the administrative credibility finding

is appropriate here. Casey v. Secretary of Health and Human Services, 987 F.2d 1230, 1234

(6th Cir. 1993); Richardson, supra, 402 U.S. at 401, 1427. As such, the ALJ’s credibility

determination, consistent with the rest of non-disability decision, should not be disturbed. 

C. The VE’s Testimony

Finally, Plaintiff contends that the ALJ failed to meet her Step Five burden that

Plaintiff could perform a substantial number of jobs in the national economy. Plaintiff’s Brief

at 19-21(citing Teverbaugh v. Commissioner of Social Security, 258 F. Supp. 2d 702, 705-706

(E.D. Mich. 2003). He argues that the VE’s failure to provide DOT codes for her job findings

invalidates the ALJ’s non-disability conclusion. Id. at 19-20. He also contends that because

he was unrepresented by counsel, ALJ had an affirmative duty to develop the record. Id. at

20-21 (citing Lashley v. Secretary of HHS, 708 F.2d 1048 (6th Cir. 1983). 

Varley v. HHS, 820 F.2d 777, 779 (6th Cir. 1987), sets forth the Sixth Circuit’s
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requirements for a VE’s testimony. “Substantial evidence may be produced through reliance

on the testimony of a vocational expert in response to a hypothetical question, but only if the

question accurately portrays [the] plaintiff’s individual physical and mental impairments.” Id.

at 779 (internal citations omitted); See also Webb v. Commissioner of Social Sec. 368 F.3d

629, 632 (6th Cir. 2004). The hypothetical question must be supported by record evidence.

 First, Plaintiff’s argument that the ALJ did not include all of the limitations found by

his treating and consultive physicians is defeated by substantial evidence contradicting Drs.

Kim, Gupta, and Rosenbaum’s findings. “[T]he ALJ is not obliged to incorporate

unsubstantiated complaints into his hypotheticals.” Stanley v. Secretary of Health and Human

Services, 39 F.3d 115,118-119 (6th Cir.1994)(citing Hardaway v. Secretary of Health &

Human Servs., 823 F.2d 922, 927-28 (6th Cir.1987)). 

Second, Plaintiff faults the ALJ for omitting limitations on stooping, kneeling,

crouching, and crawling from the hypothetical question. Plaintiff’s Brief at 15. However, the

Physical Residual Functional Capacity Assessment did not preclude these functions, but

merely stated that Plaintiff would be limited to performing stooping, kneeling, crouching, and

crawling one-third of the time or less (occasionally) (Tr. 190). Plaintiff makes no attempt to

show how the work as an assembler, inspector/sorter, or packager required more than

occasional stooping, kneeling, crouching, and crawling (Tr. 256). Defendant, citing SSR 85-

15, notes that so long as the “individual can stoop and crouch occasionally, the base of
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sedentary and light jobs “‘is virtually intact.’” Defendant’s Brief at 18, Docket #18. 

Consistent with SSR 85-15, the VE, noting that the job findings would not be altered if

Plaintiff were required to use a cane, found that “[t]he jobs that I identified really require very

little ambulating. It was mostly sitting or standing” (Tr. 257). These jobs, involving “mostly

sitting or standing,” would certainly not require stooping, kneeling, crouching, or crawling

for more than one third of the workday. As such, even if the omission of greater postural

limitations constitutes error, it would be at most harmless error insufficient to justify a

remand. 

 Third, Plaintiff’s argument that the VE was required to provide DOT codes for her

job findings is similarly meritless. In compliance with SSR 00-4p, the VE testified

specifically that her job findings were consistent with the DOT (Tr. 258). “The absence of

specific DOT code numbers does not undermine the substantial evidence supporting the ALJ's

decision.” Patterson v. Commissioner of Social Sec., 2010 WL 774678, at *3 (W.D.Mich.

2010); see also Pefley v. Astrue 2010 WL 1002613, at *11 (E.D.Mich.2010)(Borman, J.)(the

ALJ need not elicit DOT job codes from the VE to comply with SSR 00-4p). 

Fourth, Plaintiff takes issue with the VE’s testimony that he could perform “inspecting

sorting” work, noting that the one sorter/inspector position in the DOT (#589.387.010) is

semi-skilled and thus unavailable to him. Plaintiff’s Brief at 20. However, I note that the VE

did not state that Plaintiff could perform the specific position of “sorter/inspector,” but instead

that he could do “inspecting and sorting” work (Tr. 256). Plaintiff acknowledges that the
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DOT contains 137 subclassifications for sorter and approximately 932 subclasses of inspector.

Id. As such, the testimony is more obviously interpreted to state that Plaintiff could perform

a reduced range number of either the sorter or inspector positions. Plaintiff notes that many

of the assembler, packer, inspector, and sorting positions listed in the DOT are either semiskilled, skilled, or are exertionally medium. Plaintiff’s Brief at 20. By the same token, he

does not claim that none of the inspector or sorter positions are unskilled and either sedentary

or light. The VE’s testimony was elicited for the purposes of finding the number of jobs in

existence given the hypothetical limitations. “The function of the VE is to advise the ALJ of

jobs found among various categories of employment which the claimant can perform with

h[is] limitations. The ALJ may choose to rely on the VE's testimony in complex cases, given

the VE's ability to tailor h[is] finding to an ‘individual's particular residual functional

capacity.’” Beinlich v. Commissioner, No. 08-4500, 2009 WL 2877930, at *4 (6th Cir. Sept.9,

2009) (citing Wright v. Massanari, 321 F.3d 611, 616 (6th Cir.2003)). 

Fifth, Plaintiff contends that the sit/stand option included in the hypothetical question

automatically precludes exertionally light work. Plaintiff’s Brief at 14-15. He relies on SSR

83-12 which states that “[u]nskilled types of jobs are particularly structured so that a person

cannot ordinarily sit or stand at will.” 1983 WL 31253 at *4. However, as noted by

Defendant, Plaintiff ignores the Regulation’s following sentence indicating that “[i]n cases

of unusual limitation of ability to sit or stand, a [VE] should be consulted to clarify the

implications for the occupational base.” 1983 WL 31253 at *4. This is exactly what ALJ
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Revels did. 

Finally, Plaintiff, citing Lashley v. Secretary of Health and Human Services 708 F.2d

1048, 1051(6th Cir. 1983), argues that the ALJ had a heightened duty to develop the record

in light of the fact that he was not represented by an attorney at the hearing. Plaintiff’s Brief

at 20. Indeed, “where the claimant is unrepresented by counsel, the ALJ has a duty to exercise

a heightened level of care and assume a more active role” in the proceedings. Id.; Smith v.

Harris, 644 F.2d 985, 989 (3d Cir.1981). However, “the mere fact that a claimant is

unrepresented is not grounds for reversal.” Born v. Secretary of Health & Human Services

923 F.2d 1168, 1172 (6th Cir. 1990), (citing Duncan v. Secretary of Health and Human

Services, 801 F.2d 847, 856 (6th Cir.1986)). 

 Plaintiff makes his “failure to develop the record” argument to support his contention

that the ALJ’s Step Five findings were not supported by substantial evidence. However, his

arguments that (1) he is incapable of all exertionally light work (2) the ALJ was obliged to

elicit DOT job numbers from the VE (3) the jobs cited by the VE do not include unskilled

work, have been discussed and rejected. The ALJ questioned Plaintiff at length and in great

detail regarding his daily activities, work history, and treatment for both his mental and

physical conditions. Moreover, while Plaintiff was not represented by an attorney at the

hearing, a non-attorney representative vigorously questioned both Plaintiff and the VE (Tr.

223-236, 258-259). Because the record has been sufficiently developed by the representative

and the ALJ, remand on this issue is not appropriate. 
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In closing I note that this Court’s recommendation that the administrative opinion be

upheld is not intended to trivialize Plaintiff’s conditions, particularly as to what appear to be

long-term psychological impairments. While the transcript shows some degree of limitation,

a review of this record as a whole indicates that the ALJ’s determination that he was capable

of returning to full-time work is easily within the “zone of choice” accorded to the fact-finder

at the administrative hearing level. Mullen v. Bowen, supra. 

CONCLUSION

For the reasons stated above, I recommend that Plaintiff’s Motion for Summary

Judgment be DENIED, and Defendant’s Motion for Summary Judgment GRANTED. 

 Any objections to this Report and Recommendation must be filed within fourteen (14)

days of service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D. Mich. LR

72.1(d)(2). 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); Howard v. Secretary of

HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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. Willis v.

Secretary of HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of Teachers Local

231, 829 F.2d 1370, 1373 (6th Cir. 1987). 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
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opposing party may file a response. The response shall be not more than twenty (20) pages in

length unless by motion and order such page limit is extended by the court. The response shall

address specifically, and in the same order raised, each issue contained within the objections.

s/R. Steven Whalen 

 R. STEVEN WHALEN 

 UNITED STATES MAGISTRATE JUDGE

Dated: April 12, 2010

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing order was served on the attorneys

and/or parties of record by electronic means or U.S. Mail on April 12, 2010.

s/Susan Jefferson 

 Case Manager