UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DAWN RESOP, 

 Plaintiff, CIVIL ACTION NO. 09-12548 

v. DISTRICT JUDGE LAWRENCE P. ZATKOFF

 MAGISTRATE JUDGE DONALD A. SCHEER 

COMMISSIONER OF 

SOCIAL SECURITY, 

 Defendant. 

__________________________/

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION 

RECOMMENDATION: Plaintiff's Motion for Summary Judgment should be DENIED, and

that of Defendant GRANTED, as there was substantial evidence on the record that claimant

retained the residual functional capacity for a limited range of sedentary work.

 * * * 

Plaintiff filed an application for Social Security disability income benefits on

September 23, 2004, alleging that she had been disabled and unable to work since March

10, 2004, at age 33, due to fibromyalgia, chronic fatigue syndrome and blurred vision. 

Benefits were denied by the Social Security Administration (SSA). A requested de novo

hearing was held on November 15, 2006, before Administrative Law Judge (ALJ) Henry

Perez. The ALJ subsequently found that the claimant was not entitled to disability benefits

because she retained the ability to perform a restricted range of sedentary work providing

a sit-stand option. The Administrative Law Judge restricted claimant from jobs that required

fine visual acuity or would expose her to hazards and unprotected heights. The Appeals

Council declined to review that decision and Plaintiff commenced the instant action for

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judicial review of the denial of benefits. The parties have filed Motions for Summary

Judgment and the issue for review is whether Defendant's denial of benefits was supported

by substantial evidence on the record. 

Claimant was 35 years old at the time of the administrative hearing (TR 661). She

had a limited education, and had been employed as a machine operator and hi-lo driver

(TR 98, 661). As a machine operator, Plaintiff had to be on her feet for a majority of the

workday. She constantly had to handle, grip and manipulate large and small objects. She

had to lift up to 10 pounds on a regular basis (TR 99). Claimant stopped working in

February 2004, when she experienced vision problems after being exposed to the smell

of burning plastic (TR 670-671). Following this incident, Plaintiff was unable to return to

work due to severe headaches, chronic fatigue, periodic blackouts and joint pain (TR 677-

680, 684). 

 Plaintiff alleged that she was disabled as a result of radiating joint pain and chronic

fatigue (TR 677). She remained capable of shopping, cooking, housekeeping, socializing

and doing her laundry (TR 107-109, 683-684). Plaintiff drove short distances, including

driving her child home from school (TR 685). She had to lie down several times a day in

order to get any pain relief (TR 683). Claimant was allegedly unable to sit or stand for

prolonged periods, and was unable to lift more than ten pounds (TR 687). 

A Vocational Expert, Michael Rosko, classified Plaintiff’s past work as light to

medium, semi-skilled activity, which imparted some transferable skills (TR 689-690). The

witness testified that there would not be any jobs for claimant to perform if her testimony

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were fully accepted1

 (TR 692). If she were capable of sedentary work, however, there were

numerous unskilled packaging and sorting jobs that she could still perform with minimal

vocational adjustment (TR 691). These simple, routine jobs allowed a sit-stand option, and

did not expose workers to hazards or unprotected heights (TR 690).

ADMINISTRATIVE LAW JUDGE'S DETERMINATION

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

fibromyalgia, chronic headaches and right shoulder/left knee pain, but that she did not have

an impairment or combination of impairments severe enough to meet or equal the Listing

of Impairments. The ALJ recognized that claimant’s joint pain prevented her from working

at jobs requiring her to sit or stand for prolonged periods, and from work involving frequent

crouching, crawling, stooping, climbing or balancing. The Administrative Law Judge also

restricted claimant from jobs that would expose her to hazards and unprotected heights. 

Nevertheless, he found that Ms. Resop retained the residual functional capacity to perform

a significant number of sedentary jobs, within those limitations, as identified by the

Vocational Expert.

STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this court has jurisdiction to review the

Commissioner's decisions. Judicial review of those decisions is limited to determining

whether his findings are supported by substantial evidence and whether he employed the

proper legal standards. Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial

 1The witness testified that claimant’s alleged need to take frequent breaks

throughout the day due to her joint pain and chronic fatigue would preclude all work activity

(TR 692).

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evidence is more than a scintilla but less than a preponderance. It is such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion. See Kirk

v. Secretary, 667 F.2d 524, 535 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983). This

court does not try the case de novo, resolve conflicts in the evidence, or decide questions

of credibility. See Brainard v. Secretary, 889 F.2d 679, 681 (6th Cir. 1989); Garner v.

Heckler, 745 F.2d 383, 387 (6th Cir. 1984).

In determining the existence of substantial evidence, the court must examine the

administrative record as a whole. Kirk, 667 F.2d at 536. If the Commissioner's decision is

supported by substantial evidence, it must be affirmed even if substantial evidence also

supports the opposite conclusion, Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en

banc), Casey v. Secretary, 987 F.2d 1230 (6th Cir. 1993), and even if the reviewing court

would decide the matter differently, Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir.

1983).

Plaintiff maintains that substantial evidence does not exist on the record that she

remains capable of performing a limited range of sedentary work activity. She also argues

that the ALJ improperly evaluated her credibility, and did not take into consideration all of

her functional limitations. Defendant counters that the claimant retains the residual

functional capacity for a reduced range of sedentary work because the objective clinical

evidence of record did not confirm the disabling nature of her joint pain or other alleged

impairments. 

DISCUSSION AND ANALYSIS

Substantial evidence existed on the record supporting the Commissioner's

conclusion that Plaintiff retained the residual functional capacity for a restricted range of

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sedentary work providing a sit-stand option and involving no exposure to hazards or

unprotected heights. Contrary to Plaintiff’s assertion, the medical evidence did not support

her allegations of totally disabling joint pain.

The medical record contained little objective medical basis for crediting Plaintiff’s

complaints of disabling symptoms related to fibromyalgia. As pointed out by the ALJ, the

claimant has never been hospitalized, nor has she received aggressive treatment for the

condition (TR 50). Moreover, diagnostic tests did not support all her complaints. Examining

physicians reported no significant abnormalities. The claimant had full ranges of joint

motion, and good muscle strength in her arms and legs. Muscle bulk and tone were normal,

coordination was unimpaired, and she did not exhibit any neurological deficits (TR 516-523,

526-536, 588-599).

 Plaintiff also obtained significant relief from medications taken as prescribed, and

the medical record contained no evidence of significant side-effects from those

medications. The Administrative Law Judge also noted that no examining physician

recommended that she frequently lie down throughout the day (TR 50). Despite Plaintiff’s

allegations of severe functional limitations, a significant portion of the treatment notes found

in the record document routine medical care for such ailments as diffuse joint pain, fatigue,

seasonal allergies, headaches and blurred vision (TR 216, 222, 243, 303, 313, 334, 372,

413).

While the subjective nature of fibromyalgia does not usually lend itself to objective

medical verification, the ALJ did not rely solely on the lack of objective medical support in

determining that Plaintiff was not disabled. Despite her allegations that she suffered from

severe pain radiating throughout her body, the claimant was able to prepare meals, pay

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bills and perform household chores. She spent time watching television, caring for her

children and visiting with friends (TR 107-109, 683-684). The ALJ reasonably accounted

for claimant’s periodic joint pain by restricting her to slow paced sedentary work that did not

require frequent crouching, crawling, stooping, climbing or balancing.

Plaintiff relies heavily upon the fact that Dr. Henein opined in October 2006, that she

“cannot stand during a workday.” (TR 287-288). It is well settled that opinions of treating

physicians should be given greater weight than those of one-time examining doctors

retained by the government. Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980). However,

the opinion of a treating physician is entitled to deference only if his clinical findings are

uncontradicted by substantial medical or other evidence, and if the opinion is based on

detailed, clinical, diagnostic evidence. Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985).

Since Dr. Henein offered no objective evidence to support his statement of disability, his

opinion need not have been given any special weight2. Miller v. Secretary, 843 F.2d 221,

224 (6th Cir. 1988). Under these circumstances, the totality of the evidence must be

considered. Landsaw v. Secretary, 803 F.2d 211, 213 (6th Cir. 1986). 

Contrary to Plaintiff’s assertion, the issue is not whether the ALJ properly labeled her

impairments as severe or non-severe, but whether the Administrative Law Judge

adequately included all functional limitations from those impairments into his residual

functional capacity (RFC) evaluation. In the instant case, the claimant has failed to point

 2The ALJ rejected the doctor’s disability opinion, setting forth persuasive reasons for

doing so. The ALJ expressed concern about the lack of medical documentation to support

any disability (TR 51). The ALJ also correctly pointed out that Dr. Henein treated claimant

very briefly, and did so in a conservative manner (TR 51). 

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to any medical opinion, or other evidence demonstrating additional work-related limitations,

ignored by the Administrative Law Judge.

It is the rare case, the exception, in which every piece of evidence points

incontrovertibly toward a decision to deny benefits. There was evidence in the record

which, taken in isolation, might suggest that the Plaintiff was totally disabled and that her

testimony was fully credible. However, special deference is owed to the credibility findings

of the ALJ, who was the only one who had the opportunity to observe the demeanor of the

witness, evaluate what was said and how it was said, and to consider how that testimony

fit in with the rest of the medical evidence. Such observation is invaluable and should not

be discarded lightly. Beavers v. Secretary, 577 F.2d 383 (6th Cir. 1978). See also

Williamson v. Secretary, 796 F.2d 146, 150 (6th Cir. 1986).

By establishing that she could not return to her past relevant work, the Plaintiff here

effectively shifted to the Commissioner the burden of proving that she had the vocational

qualifications to perform alternative jobs in the economy, notwithstanding her various

impairments. The Commissioner, however, met his burden of proving the existence of jobs

which accommodated claimant's known restrictions. In response to hypothetical questions

that took into consideration claimant's educational and vocational background, along with

her significant impairments3

, the Vocational Expert testified that there were numerous

 3The Administrative Law Judge’s hypothetical questions to the Vocational Expert

accurately described Plaintiff’s moderate limitations caused by her joint pain. The ALJ

reasonably determined that claimant’s on-going joint discomfort limited her to simple,

unskilled, routine type jobs (TR 53). The Sixth Circuit has held that hypothetical questions

to experts are not required to included lists of claimant’s medical conditions. Webb v.

Commissioner, 368 F.3d 629, 633 (6th Cir. 2004). Under these circumstances, the ALJ’s

hypothetical question accurately portrayed Plaintiff’s impairments.

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unskilled packaging and sorting jobs that she could still perform with minimal vocational

adjustment (TR 691). These simple, routine jobs allowed a sit-stand option and did not

expose workers to hazards or unprotected heights (TR 690). Given the objective clinical

findings of the examining physicians of record, substantial evidence existed on the record

that Plaintiff retained the residual functional capacity for a restricted range of sedentary

work activity. 

 In sum, the Commissioner's decision to deny benefits was within the range of

discretion allowed by law and there is simply insufficient evidence for the undersigned to

find otherwise. Accordingly, Plaintiff's Motion for Summary Judgment should be denied, that

of Defendant granted and the instant Complaint dismissed. 

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to act within fourteen (14) days of service of a copy

hereof as provided for in 28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes

a waiver of any further right of appeal. United States v. Walters, 638 F.2d 947 (6th Cir.

1981), Thomas v. Arn, 474 U.S. 140 (1985), Howard v. Secretary of HHS, 932 F.2d 505

(6th Cir. 1991). Filing of objections which raise some issues but fail to raise others with

specificity, will not preserve all the objections a party might have to this Report and

Recommendation. Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th

Cir. 1987), Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir. 1991). Pursuant to Rule

72.1 (d)(2) of the Local Rules of the United States District Court for the Eastern District of

Michigan, a copy of any objections is to be served upon this Magistrate Judge.

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Within fourteen (14) days of service of any objecting party's timely filed objections,

the opposing party may file a response. The response shall address specifically, and in the

same order raised, each issue contained within the objections.

s/Donald A. Scheer

 DONALD A. SCHEER 

 UNITED STATES MAGISTRATE JUDGE

DATED: December 11, 2009

______________________________________________________________________

CERTIFICATE OF SERVICE

I hereby certify on December 11, 2009 that I electronically filed the foregoing paper

with the Clerk of the Court sending notification of such filing to all counsel registered

electronically. I hereby certify that a copy of this paper was mailed to the following nonregistered ECF participants on December 11, 2009: None.

s/Michael E. Lang 

Deputy Clerk to 

Magistrate Judge Donald A. Scheer

(313) 234-5217

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