UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

SHIMROZE MOTIN,

Plaintiff,

v. Case No. 09-13354

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

/

OPINION AND ORDER (1) OVERRULING PLAINTIFF’S OBJECTIONS, 

(2) ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION, 

(3) GRANTING DEFENDANT’S SUMMARY JUDGMENT MOTION, 

AND (4) DENYING PLAINTIFF’S SUMMARY JUDGMENT MOTION

On April 6, 2010, Magistrate Judge Charles E. Binder issued a Report and

Recommendation (“R&R”) in the above-captioned matter, recommending that this court

grant Defendant Commissioner of Social Security’s “Motion for Summary Judgment”

and deny Plaintiff Shimroze Motin’s “Motion for Summary Judgment.” On April 14,

2010, Plaintiff filed timely objections to the R&R, and the Government filed a response

on April 28, 2010. The court concludes that a hearing is unnecessary. See E.D. Mich.

LR 7.1(e)(2). For the reasons stated below, the court will overrule Plaintiff’s objections,

adopt the R&R, grant Defendant’s “Motion for Summary Judgment,” and deny Plaintiff’s

“Motion for Summary Judgment.” 

I. BACKGROUND

The sole issue before the court involves Plaintiff’s alleged illiteracy, and the

Magistrate Judge accurately detailed the administrative record. The court will therefore

not describe Plaintiff’s medical record in detail, and will instead briefly set forth the

pertinent facts concerning Plaintiff’s ability to read and write. (See Pl.’s Mot. Br. at 2
2

(“Plaintiff has no dispute with the medical assessment and findings of the ALJ. . . . The

area of dispute obviously involves the findings, or lack thereof, on literacy.”).)

When Plaintiff applied for Social Security benefits, she completed a “Disability

Report - Adult - Form SSA -3368.” (Tr. at 51.) On the form, Plaintiff indicated that she

could “read and understand English” and that she could “write more than [her] name in

English.” (Id. at 52.) A field office employee conducted a face-to-face interview with

Plaintiff and filled out a “Disability Report - Field Office - Form SSA-3367.” (Id. at 48.) 

The form indicates that Plaintiff had no difficulty reading or writing. (Id. at 49.) Plaintiff

also signed two “Fee Agreements” with her representatives which were written in

English. (Id. at 36, 143.)

Plaintiff appeared for a hearing before the ALJ on March 12, 2008, accompanied

by a non-attorney representative. (Id. at 212-14.) Also present at the hearing was a

vocational expert and a Bengali interpreter. (Id. at 214-16.) During the examination of

Plaintiff, the ALJ asked Plaintiff, “Can you read and write English?” (Id. at 215.) Plaintiff

responded, “My memory is not that good. That’s why I can’t do it.” (Id.) Plaintiff also

testified that she had a twelfth grade education in Bangladesh and that she has lived in

the United States for almost twenty years. (Id.)

Prior to the hearing, Plaintiff’s representative submitted to the ALJ a document

entitled “Proposed Conclusion and Findings of Facts.” (Id. at 141.) The document

stated that Plaintiff “completed the 12th grade and has no special skills.” (Id.) It further

detailed Plaintiff’s impairments of asthma, depression, and diabetes and explained how

these impairments limited Plaintiff. (Id.) However, the document made no mention of

Plaintiff’s alleged inability to read and write. (Id.)
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On August 19, 2008, the ALJ issued a written decision concluding that Plaintiff

was not disabled under the meaning of the Social Security Act, (id. at 16-22), and on

June 26, 2009, the Appeals Council found no reason to review the ALJ’s decision, (id. at

5-7). In the decision, the ALJ described Plaintiff as “a 52-year-old individual with a high

school education in Bangladesh.” (Id. at 18.) The ALJ noted that she “has been in the

United States almost 20 years at the time of the hearing” and that she “speaks ‘pretty

good broken English’ and was easily understood at the hearing.” (Id.) 

After considering the record, the ALJ found that Plaintiff had the residual

functional capacity (“RFC”) to:

perform light work as defined in 20 CFR 416.967(b) except with lifting and

carrying 20 pounds occasionally, 10 pounds frequently; 6 hours

standing/walking; 2 hours sitting; avoiding concentrated exposure to

unprotected heights, vibrating tools, moving machinery, and dust, fumes

and gases; and she is able to handle work involving simple tasks.

(Id. at 19-20.) The ALJ further found that Plaintiff had no past relevant work, was

“closely approaching advanced age” as of March 7, 2006, and has “at least a high

school education and is able to communicate in English.” (Id. at 21.) Based on

Plaintiff’s age, education, work experience, and RFC, the ALJ concluded that there “are

jobs that exist in significant numbers in the national economy that the claimant can

perform.” (Id.) In reaching this conclusion, the ALJ utilized the framework of MedicalVocational Rule 202.13. (Id. at 22.)

On August 25, 2009, Plaintiff sought review of the Commissioner’s decision in

this court. The case was referred to Magistrate Judge Binder, and both parties filed

motions for summary judgment. The Magistrate Judge recommended granting

Defendant’s “Motion for Summary Judgment,” concluding that substantial evidence
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supported the Commissioner’s determination. (R&R at 1.) Plaintiff has lodged timely

objections to the Magistrate Judge’s R&R. 

II. STANDARD

A. Substantial Evidence Standard

Pursuant to 42 U.S.C. § 405(g), the Commissioner’s findings of fact are

conclusive if supported by substantial evidence. When the Appeals Council declines

review, “the decision of the ALJ becomes the final decision of the [Commissioner].” 

Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993) (per

curiam). “The decision of an ALJ is reviewed to determine whether it is supported by

substantial evidence and consistent with applicable law.” Pittsburgh & Conneaut Dock

Co., v. Dir., Office of Workers’ Comp. Programs, 473 F.3d 253, 258 (6th Cir. 2007). 

This judicial review is limited to the record and evidence that was before the ALJ. Cline

v. Comm’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996) (citing Cotton v. Sullivan, 2

F.3d 692, 696 (6th Cir. 1993)). 

The court’s review of the record for substantial evidence is quite deferential to the

ALJ’s evaluation of the facts. The court must uphold the ALJ’s finding if supported by

substantial evidence. “Substantial evidence is more than a scintilla of evidence but less

than a preponderance and is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion,” Pittsburgh & Conneaut Dock Co., 473

F.3d at 259 (citation omitted), “even if that evidence could support a decision the other

way,” Casey, 987 F.2d at 1233. Moreover, the court bases its review on the entire

record, not just what the ALJ cited. Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535

(6th Cir. 2001) (“Both the court of appeals and the district court may look to any
5

evidence in the record, regardless of whether it has been cited by the Appeals

Council.”). 

B. Timely Objections and De Novo Review

The filing of timely objections requires the court to “make a de novo

determination of those portions of the report or specified findings or recommendations

to which objection is made.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz,

447 U.S. 667 (1980); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This de

novo review, in turn, requires this court to re-examine all the relevant evidence

previously reviewed by the magistrate judge to determine whether the recommendation

should be accepted, rejected, or modified in whole or in part. 28 U.S.C. § 636(b)(1). 

The court may “receive further evidence” if desired. Id.

A party who files timely objections to a magistrate judge’s report in order to

preserve the right to appeal must be mindful of the purpose of such objections: to

provide the district court “with the opportunity to consider the specific contentions of the

parties and to correct any errors immediately.” Walters, 638 F.2d at 949-50. The

Supreme Court upheld this rule in Thomas v. Arn, 474 U.S. 140 (1985), noting that

“[t]he filing of objections to a magistrate’s report enables the district judge to focus

attention on those issues--factual and legal--that are at the heart of the parties’ dispute.” 

Id. at 147 (footnote omitted). 

Furthermore, “[o]nly those specific objections to the magistrate’s report made to

the district court will be preserved for appellate review; making some objections but

failing to raise others will not preserve all the objections a party may have.” 
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McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (quoting Smith

v. Detroit Fed’n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987)).

III. DISCUSSION

A. Waiver

The Magistrate Judge concluded that Plaintiff waived the issue of her alleged

illiteracy. (R&R at 15.) Plaintiff objects to this conclusion, arguing that the issue of her

illiteracy was not waived because it was raised with the Appeals Council; the issue was

“preserved tacitly by the use of a translator;” the issue was preserved “specifically by

the ALJ’s question to the Plaintiff, which elicited a response that she could not read and

write;” and the “issue was not fully triggered until the ALJ made his findings of a residual

functional capacity for light work.” (Pl.’s Objs. ¶¶ 2, 3, 5.) 

The court agrees with the Magistrate Judge that Plaintiff waived her literacy

argument. The Magistrate Judge cited cases from other circuits that held that a failure

to raise an argument with the ALJ results in waiver. See, e.g., Anderson v. Barnhart,

344 F.3d 809, 814 (8th Cir. 2003) (“[Claimant] never alleged any limitation in function as

a result of his obesity in his application for benefits or during the hearing. Accordingly,

this claim was waived from being raised on appeal.”); Meanel v. Apfel, 172 F.3d 1111,

1115 (9th Cir. 1999) (“We now hold that, at least when claimants are represented by

counsel, they must raise all issues and evidence at their administrative hearings in order

to preserve them on appeal.”). The court finds the reasoning of these cases persuasive

and therefore concludes that Plaintiff’s argument to the Appeals Council, which declined

to review the case, does not preserve her illiteracy argument which was never made in

the application or to the ALJ. As the Magistrate Judge notes, this was not a technical
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argument for which only an attorney knowledgeable in the intricacies of Social Security

law would know. (R&R at 15.) Instead, Plaintiff should have been readily aware of her

inability to read and write English and that this may affect her ability to obtain

employment. 

Also, the presence of a translator, provided by the Social Security Administration,

does not automatically raise an illiteracy argument. It was Plaintiff’s burden to

demonstrate that she was disabled by affirmatively setting forth the reasons. See 20

C.F.R. § 416.912(a) (“In general, you have to prove to us that you are blind or

disabled.”); Boyes v. Sec’y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994)

(“Claimant bears the burden of proving [her] entitlement to benefits.”). Under Plaintiff’s

reasoning, the presence of an overweight claimant would automatically raise an

argument that a person was limited by obesity, contrary to Anderson. Moreover, a

translator involves oral communication, not the ability to read and write. Thus, even if

the presence of a translator could “tacitly” raise an argument, it would be based on an

ability to communicate in English, which the ALJ addressed. (See Tr. at 21.) 

In addition, the ALJ’s question regarding ability to read and write in English,

which he was required to ask per the Regulations, does not automatically mean that a

literacy argument has been raised. Plaintiff’s answer to the question regarding her poor

memory was not entirely clear, particularly in light of her assertions in her Form SSA3368 that she could “read and understand English” and could “write more than [her]

name in English” and in light of the lack of any mention of illiteracy on the “Proposed

Conclusion and Findings of Fact” submitted by her representative. (Tr. at 52, 141.)
8

Plaintiff’s final argument that the illiteracy issue was not “triggered” until the ALJ

found that Plaintiff could perform light work is without merit. Simply because a

potentially dispositive issue is revealed in hindsight to have been more important than

earlier thought—based on the resolution of other issues—does not mean that it need

not have been raised in the first instance. Plaintiff waived her illiteracy argument.

Alternatively, even if Plaintiff’s argument was not waived, the court agrees with

the Magistrate Judge that the ALJ did not error in his application of the Regulations.

B. Application of the Regulations

The Magistrate Judge determined that “the record supports the ALJ’s decision

declining to make use of medical-vocational guideline 202.09” and the “ALJ’s decision is

supported by substantial evidence.” (R&R at 15-16.) Plaintiff objects because she

alleges that Defendant failed to properly apply its own regulations. (Pl.’s Obj. ¶ 1.) 

Plaintiff contends that the case should be remanded because the ALJ never made a

finding regarding Plaintiff’s literacy, as Plaintiff alleges was required by Rule 202.09 of

Appendix 2. (Id.)

At step five of the Social Security Administration’s sequential analysis, the ALJ is

to consider, among other things, the claimant’s age, education, past work experience,

and residual functional capacity, in order to determine whether the claimant is capable

of performing other work in the national economy. White v. Comm’r of Soc. Sec., 572

F.3d 272, 282 (6th Cir. 2009). To promote consistent and uniform determinations at this

step, the Social Security Administration has promulgated Appendix 2, which establishes

numbered table rules. Soc. Sec. Ruling 83-10. “Each numbered rule in the appendix

resolves the issue of capability to do other work by addressing specific combinations of
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the factors (i.e., RFC, age, education, and work experience) that determine capability to

do work other than that previously performed.” Id. As relevant to this case, Appendix 2

sets forth the following numbered table rules for a claimant capable of performing light

work:

Rule Age Education

Previous

Work

Experience

Decision

202.09

Closely

approaching

advanced age

Illiterate or

unable to

communicate

in English

Unskilled or

none

Disabled

202.13

Closely

approaching

advanced age

High school

graduate or

more

Unskilled or

none

Not disabled

Appendix 2 to Subpart P of Part 404—Medical-Vocational Guidelines, Section 202.00,

Table No. 2.

The Social Security Administration has determined that “with respect to the

elements of a numbered rule, findings of fact based on the evidence in the individual

claim must be made.” Soc. Sec. Ruling 83-11. The Administration has stated that

“appropriate findings” should show the RFC, education, age, and work experience of the

claimant. Id. It described the “appropriate findings” for education as follows:

Education coincides with one of the education categories listed in the

regulations. Where an individual’s present level of reasoning,

communication, and arithmetical ability is higher or lower than the level of

formal education, an explanation must be given. In the cases in which a

person recently completed education at the high school level or above

which provides a basis for direct entry into skilled work within his or her

RFC, this finding of fact requires identification of the work skills, examples

of specific occupations with his or her RFC the person can do, and a

statement of the incidence of such jobs in the region in which the person

lives or in several regions of the country. 
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Id. The Regulations list six categories that will be used in evaluating a claimant’s

educational level: (1) illiteracy, (2) marginal education, (3) limited education, (4) high

school education and above, (5) inability to communicate in English, and (6) information

about the claimant’s education. 20 C.F.R. § 416.964(b). 

The Regulations define illiteracy as “the inability to read or write.” Id. The

Administration will “consider someone illiterate if the person cannot read or write a

simple message such as instructions or inventory lists even though the person can sign

his or her name.” Id. “Generally, an illiterate person has had little or no formal

schooling.” Id.

Regarding inability to communicate in English, the Regulations provide:

[s]ince the ability to speak, read and understand English is generally

learned or increased at school, we may consider this an educational

factor. Because English is the dominant language of the country, it may

be difficult for someone who doesn’t speak and understand English to do

a job, regardless of the amount of education the person may have in

another language. Therefore, we consider a person’s ability to

communicate in English when we evaluate what work, if any, he or she

can do. It generally doesn’t matter what other language a person may be

fluent in.

Id. Inability to communicate in English and illiteracy have less significance in the

context of unskilled work because “the primary work functions in the bulk of unskilled

work relate to working with things (rather than with data or people).” Appendix 2 to

Subpart P of Part 404—Medical-Vocational Guidelines, Section 202.00(g). The

Administration will ask a claimant “how long [he or she] attended school and whether

[he or she is] able to speak, understand, read and write in English and do at least

simple calculations in arithmetic.” 20 C.F.R. § 416.964(b). Unless there is evidence to
11

contradict it, the Administration will use the claimant’s numerical grade level to

determine his or her educational abilities. Id.

The court concludes that the ALJ properly applied the Regulations. As required,

the ALJ made a finding concerning Plaintiff’s RFC, education, age, and work

experience. (Tr. at 19-21.) Specifically, the ALJ’s finding regarding education—that the

“claimant has at least a high school education and is able to communicate in

English”—was proper. (Id. at 21 (citing 20 C.F.R. § 416.964).) This finding, coupled

with the ALJ’s finding that Plaintiff could perform light work, triggered the framework of

Rule 202.13, which the ALJ applied. (Id. at 22.) Plaintiff cites no authority for the

proposition that an ALJ must make specific findings on every educational category listed

in 20 C.F.R. § 416.964(b). An explicit finding regarding literacy would be especially

unnecessary when Plaintiff has previously affirmatively represented on her forms that

she could “read and write English” and could “write more than [her] name in English”

and when her “Proposed Conclusion and Findings of Fact” made no mention of

illiteracy. (Id. at 52, 141.) The court therefore agrees with the Magistrate Judge that

substantial evidence supported the ALJ’s application of Rule 202.13, as opposed to

Rule 202.09, and finds no error in the ALJ’s failure to make an explicit finding regarding

literacy. Accordingly, the court will overrule Plaintiff’s objections. 

IV. CONCLUSION

For the reasons stated above, IT IS ORDERED that Plaintiff’s objections [Dkt. #

13] are OVERRULED and the Magistrate Judge’s April 6, 2010 report and

recommendation [Dkt. # 12] is ADOPTED IN FULL AND INCORPORATED BY

REFERENCE.
C:\Documents and Settings\mullins\Local Settings\Temp\Domino Web Access\09-13354.MOTIN.SocialSecurity.R&R.npk66.wpd

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IT IS FURTHER ORDERED that Plaintiff’s “Motion for Summary Judgment” [Dkt.

# 8] is DENIED and Defendant’s “Motion for Summary Judgment” [Dkt. # 11] is

GRANTED.

 s/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: April 30, 2010

I hereby certify that a copy of the foregoing document was mailed to counsel of record on

this date, April 30, 2010, by electronic and/or ordinary mail.

 s/Deborah J. Goltz 

Case Manager and Deputy Clerk

(313) 234-5522