1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

THOMAS FORT,

PLAINTIFF,

v. CASE NO. 09-11128

COMMISSIONER OF HONORABLE SEAN F. COX

SOCIAL SECURITY,

DEFENDANT.

____________________________________/

OPINION & ORDER 

ACCEPTING AND ADOPTING REPORT & RECOMMENDATION

This social security appeal is before the Court for consideration of Plaintiff’s objections

to the Report and Recommendation (“R&R”) filed by Magistrate Judge Mark Randon on July

28, 2010, relating to the parties’ cross-motions for summary judgment. In the R&R, Magistrate

Judge Randon recommends that the Court grant Defendant’s motion and deny Plaintiff’s motion. 

 For the reasons that follow, the Court overrules Plaintiff’s objections to the R&R, and shall

adopt the R&R in its entirety.

BACKGROUND

Plaintiff Thomas Fort (“Plaintiff”) brought this action challenging a final decision of

Defendant Commissioner of Social Security (“Defendant” or “Commissioner”) denying his

application for disability-insurance benefits. Thereafter, both parties filed cross-motions for

summary judgment (Doc. Nos. 15 & 20), which were ultimately assigned to Magistrate Judge

Randon pursuant to 28 U.S.C. §636(b)(1)(B) & (C). On July 28, 2010, Magistrate Judge Randon

issued his R&R (Doc. No. 22) which recommends that the Court deny Plaintiff’s Motion for
2

Summary Judgment or Remand (Doc. No. 15) and grant Defendant’s Motion for Summary

Judgment (Doc. No. 20).

Pursuant to Federal Rule of Civil Procedure 72(b), a party objecting to the recommended

disposition of a matter by a Magistrate Judge must filed objections to the R&R within fourteen 

days after being served with a copy of the R&R. “The district judge must determine de novo any

part of the magistrate judge’s disposition that has been properly objected to. The district judge

may accept, reject, or modify the recommended disposition; receive further evidence; or return

the matter to the magistrate judge with instructions.” FED. R. CIV. P. 72(b).

On August 11, 2010, Plaintiff filed timely objections to the R&R. 

ANALYSIS

Plaintiff asserts several different objections to the R&R.

Objection 1

Plaintiff first objects to Magistrate Judge Randon’s determination that the decisions of

the Administrative Law Judge (“ALJ”) regarding Plaintiff’s mental impairments were supported

by substantial evidence. 

The R&R states:

A review of the record indicates that Plaintiff saw a counselor, Mr.

Haefner, approximately 14 times during an eight-month period from

October 2007 through May 2008 (Tr. 473-86, 488-91, 495-500).

During this period, psychiatrist Dr. Sadasivan examined Plaintiff

once, in November 2007 (Tr. 492-94). These sparse treatment

records simply do not establish that – as of Plaintiff’s alleged onset

of disability, in January 2006 – Plaintiff experienced mental

impairments that significantly interfered with his ability to work. As

such, the ALJ reasonably concluded that these records did not

establish that Plaintiff’s ability to perform the mental and emotional

requirements of simple, routine work was impaired for a continuous

twelve-month period (Tr. 13). See 20 C.F.R. §§ 404.1509, 416.909.
1

Listing 12.04 is found in 20 C.F.R. Part 404, Subpart P, Appendix 1, Part A, Section

12.04. It is divided into three paragraphs, A, B, and C. The listing states, “The required level of

severity for these disorders is met when the requirements in both A and B are satisfied, or when

the requirements in C are satisfied.” Id. 

3

(R&R at 11) (emphasis added).

In his objections, Plaintiff argues that “the characterization of 15 visits for mental health

concerns as sparse is erroneous.” The R&R stated, however, that the treatment records were

sparse and “did not establish” that Plaintiff was unable to preform simple and routine work for a

twelve-month period. This Court agrees with that finding. 

Plaintiff also argues, 

[T]he ALJ failed to indicate what evidence he weighed in dismissing

meeting Listing 12.041

 and simply recited the listings and made

special technique findings without rationale. (R.11). However, the

Magistrate Judge seems to gloss over the lack of rationale and simply

addresses Defendant’s arguments in regards to why greater

limitations should not be found based on the evidence. . . 

(Pl.’s Obj. at 2).

The ALJ’s written decision contained a section titled “Findings of Fact and Conclusions

of Law,” in which that ALJ wrote:

Claimants’s mental impairments, including the substance abuse

disorders, do not meet listings 12.04 affective disorders, or 12.09

Substance addiction disorders. In making this finding, the

undersigned has considered whether the “paragraph B” criteria are

satisfied. To satisfy the “paragraph B” criteria, the impairments must

result in at least two of the following: marked restriction of activities

of daily living; marked difficulties in maintaining social functioning;

marked difficulties in maintaining concentration, persistence, or pace;

or repeated episodes of decompensation, each of extended duration.

A marked limitation means more than moderate but less than

extreme. 

(R. at 11; Doc. No. 13-3) (emphasis added).
4

The ALJ noted that Plaintiff had only “moderate restriction” in his daily living activities

and social functioning, that he had “marked difficulties” with concentration caused by smoking

marijuana regularly, and that he had no episodes of decompensation. In light of these findings,

the ALJ determined the Plaintiff did not meet the “paragraph B” criteria. (R. at 11). 

Further, the ALJ stated, “The undersigned has also considered whether the ‘paragraph C’

criteria are satisfied. In this case, the evidence fails to establish the presence of the ‘paragraph

C’ criteria [e.g. 12.04].” (R. at 11). 

The R&R stated, “Plaintiff argues that the ALJ ignored evidence of his mental limitations

and erred by finding that he did not meet Listing 12.04 . . . . Defendant responds that the ALJ

expressly considered Plaintiff’s condition under Section 12.04 and other sections of the Listing

of Impairments . . . . Defendant’s argument is well taken.” (R&R at 12). 

This Court agrees. The ALJ considered whether Plaintiff met the criteria of Listing

12.04, and there is sufficient evidence to support the ALJ’s decision. See (R&R at 12). 

In arguing that Plaintiff meets the criteria of Listing 12.04, Plaintiff relies on the report of

Dr. Sadasivan and records from therapist Thomas Haefner. Regarding Dr. Sadasivan, the R&R

accurately noted that Dr. Sadasivan “does not appear to be a long-term treating physician, who

was familiar with plaintiff over an extended period of time.” (R&R at 12). Regarding Haefner’s

records, the R&R agreed with Defendant’s assertion that the records “do not show that the ALJ

erred in assessing the severity of Plaintiff’s mental impairment.” (R&R at 12). Additionally,

this Court agrees that the ALJ “was under no obligation to purchase a consultative examination

in order to assist Plaintiff in establishing disability.” (R&R at 13). 

Plaintiff also objects to the R&R’s discussion of Plaintiff’s use of marijuana. Plaintiff
5

argues:

[T]he Magistrate fails to address the fact that Defendant did not

contest that the ALJ played doctor by concluding that Plaintiff’s

inability to sustain concentration/attention is due to routine use of

marijuana. Defendant also failed to respond to Plaintiff’s argument

that the ALJ’s determination that Plaintiff’s “use of cannabis could

reasonably exacerbate his depression” is another unfounded and

incorrect lay opinion, despite the medical study cited by Plaintiff that

adults do not increase their risk of depression by using marijuana. 

(Pl.’s Obj. at 8)(internal citations omitted).

As the R&R noted, “SSI benefits cannot be awarded where drug or alcohol abuse is

material to a finding of disability. See 20 C.F.R. § 416.935.” (R&R at 14).

The R&R stated that Plaintiff reported daily marijuana use to therapist Haefner on

October 17, 2007. (R&R at 4). Six days later, on October 23, 2007, Plaintiff told Dr. Sadasivan

that he used marijuana 1-2 times a week. (R&R at 5). Lastly, at the hearing, Plaintiff testified

that he continued to use cannabis once a month. (R&R at 13). This is sufficient evidence to

support the ALJ’s determination that if Plaintiff stopped using marijuana, he would be able to

work. (R. at 15). This evidence also supports the ALJ’s other determinations regarding

Plaintiff’s substance abuse.

With regards to Plaintiff’s first objection, the Court has reviewed the R&R de novo, and

has considered all of Plaintiff’s arguments. After doing so, the Court finds that the ALJ’s

decision regarding Plaintiff’s mental impairment was supported by substantial evidence. 

Accordingly, the Court will overrule Defendant’s first objection.
6

Objection 2

Plaintiff’s also objects to the recommendation to uphold the ALJ’s determination that

Plaintiff was not credible. (Pl.’s Obj. at 8).

An ALJ’s credibility determination should “be accorded great weight and deference,

particularly since an ALJ is charged with the duty of observing a witness’s demeanor and

credibility. Nevertheless, an ALJ’s assessment of a claimant’s credibility must be supported by

substantial evidence.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997)

(internal citations omitted).

On October 17, 2007, Plaintiff reported daily marijuana use, but at the hearing, Plaintiff

testified that he continued to use cannabis once a month. (R&R at 13). 

The ALJ’s report stated:

Although the representative denied [Plaintiff] had a drinking or drug

problem, it was reported [10/17/07] that [Plaintiff] used cannabis on

a daily basis. At the hearing [7/17/08], [Plaintiff] admitted that he

was still using; e.g. on 7/4/08; once a day, for depression.

(R. at 12) 

Plaintiff argues that “Plaintiff was forthcoming and credible in his reports of marijuana

use,” and that “Plaintiff’s activities do not demonstrate a lack of credibility.” (Pl.’s Obj. at 8). 

The Court disagrees. 

The ALJ did not expressly note the contradiction between Plaintiff’s statement on

October 17, 2007, and his hearing testimony. Despite this, the ALJ was aware of Plaintiff’s

October 17, 2007 statement that he used marijuana daily, and was present at the hearing when

Plaintiff stated that he used marijuana on a monthly basis. Further, he rejected Plaintiff’s

hearing testimony when he found that Plaintiff used marijuana on a daily basis. 
7

This Court finds that substantial evidence supported the ALJ’s credibility determination. 

Accordingly, the Court will overrule Plaintiff’s second objection. 

Third Objection

Lastly, Plaintiff objects to the recommendation to uphold the ALJ’s determination that

Plaintiff could perform a significant number of jobs other than his past relevant work. See 20

C.F.R. § 404.1520(a)(4)(v). 

The ALJ wrote, “If [Plaintiff] stopped the substance abuse, considering [his] age,

education, work experience, and residual functional capacity, there would be a significant

number of jobs in the national economy that [he] could perform.” (R. at 15) (citations omitted). 

This determination is supported by the testimony of Lawrence Zatkin, a vocational expert

(“VE”), who testified at the hearing that “[t]here’s a variety of unskilled jobs . . . that comport

with [Plaintiff’s] physical capacity as long as he has the flexibility to sit or stand at will.” (R. at

60). 

Plaintiff argues that the “sit / stand option” does not exist in the Dictionary of

Occupational Titles (“DOT”), and therefore the VE’s testimony conflicted with the DOT. 

Plaintiff’s motion for summary judgment states, “According to SSR 00-04p, ‘when there is an

apparent unresolved conflict between VE [ ] evidence and the DOT, the adjudicator must elicit a

reasonable explanation for the conflict before relying on the VE [ ] evidence to support a

determination or decision about whether the claimant is disabled.’ ” (Pl.’s Br. at 19).

Defendant’s brief noted, “The VE’s testimony supplemented information in the DOT, it

did not conflict with the DOT. Contrary to the Plaintiff’s assertion, the VE was not testifying as

to any vocational ‘accommodation’; instead, he was testifying as to the manner in which the jobs
8

he identified were performed.” (Def.’s Br. at 13). 

This Court agrees that the VE’s testimony supplemented the DOT, and did not contradict

it. The Court also agrees with the R&R, “the VE was not testifying as to any vocational

‘accommodation’; instead, he was testifying as to the manner in which the jobs he identified

were performed.” (R&R at 15). Accordingly, the Court shall overrule Plaintiff’s third objection.

CONCLUSION & ORDER

For the reasons above, the Court ADOPTS the July 28, 2010 R&R in its entirety. The

Court DENIES Plaintiff’s Motion for Summary Judgment or Remand and GRANTS Defendant’s

Motion for Summary Judgment. 

IT IS SO ORDERED.

S/Sean F. Cox 

Sean F. Cox

United States District Judge

Dated: September 22, 2010

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

September 22, 2010, by electronic and/or ordinary mail.

S/Jennifer Hernandez 

Case Manager