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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TISA D. MALONE,

Plaintiff, CIVIL ACTION NO. 09-13740

v. DISTRICT JUDGE ARTHUR J. TARNOW

COMMISSIONER OF MAGISTRATE JUDGE MARK A. RANDON

SOCIAL SECURITY,

Defendant.

 /

REPORT AND RECOMMENDATION

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

I. PROCEDURAL HISTORY

A. Proceedings in this Court

On September 21, 2009, Plaintiff filed the instant suit, seeking judicial review of the

Commissioner’s decision disallowing benefits (Dkt. No. 1). Pursuant to 28 U.S.C. §

636(b)(1)(B) and Local Rule 72.1(b)(3), this matter was referred to the undersigned for the

purpose of reviewing the Commissioner’s decision denying Plaintiff’s claim for a period of

disability/disability insurance and Supplemental Security Income benefits (Dkt. No. 3). This

matter is currently before the Court on cross-motions for summary judgment (Dkt. Nos. 11, 14).

B. Administrative Proceedings

Plaintiff filed the instant claims on January 26, 2005, alleging that she became unable to

work on May 10, 2004 (Tr. 53). The claim was initially disapproved by the Commissioner on

March 24, 2005 (Tr. 36, 240). Plaintiff requested a hearing and, on June 7, 2007, Plaintiff
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 In this circuit, where the Appeals Council considers additional evidence but denies a request to review the

ALJ’s decision, since it has been held that the record is closed at the administrative law judge level, those “AC”

exhibits submitted to the Appeals Council are not part of the record for purposes of judicial review. See Cotton v.

Sullivan, 2 F.3d 692, 696 (6th Cir. 1993); Cline v. Comm’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996). Therefore,

since district court review of the administrative record is limited to the ALJ’s decision, which is the final decision of

the Commissioner, the court can consider only that evidence presented to the ALJ. In other words, Appeals Council

evidence may not be considered for the purpose of substantial evidence review.

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appeared with counsel before Administrative Law Judge (ALJ) Joel G. Fina, who considered the

case de novo. In a decision dated August 7, 2007, the ALJ found that Plaintiff was not disabled

(Tr. 13-23). Plaintiff requested a review of this decision on August 13, 2007 (Tr. 10-12). The

ALJ’s decision became the final decision of the Commissioner when, after the review of

additional exhibits1

 (AC-1-2, Tr. 246-263), the Appeals Council, on July 27, 2009, denied

Plaintiff’s request for review (Tr. 3-5); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 543-44 (6th

Cir. 2004). 

In light of the entire record in this case, I find that substantial evidence supports the

Commissioner’s determination that Plaintiff is not disabled. Accordingly, it is

RECOMMENDED that Plaintiff’s motion for summary judgment be DENIED, Defendant’s

motion for summary judgment be GRANTED, and that the findings of the Commissioner be

AFFIRMED. 

II. STATEMENT OF FACTS

A. ALJ Findings

Plaintiff was 33 years old at the time of the most recent administrative hearing (Tr. 22). 

Plaintiff has past relevant work history as an assembler and a medical assistant (Tr. 22). The

ALJ applied the five-step disability analysis to Plaintiff’s claim and found at step one that

Plaintiff had not engaged in substantial gainful activity since May 10, 2004 (Tr. 18). At step
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two, the ALJ found that Plaintiff had the following “severe” impairments: degenerative disc

disease, right carpal tunnel syndrome and diabetes mellitus. Id. At step three, the ALJ found no

evidence that Plaintiff’s combination of impairments met or equaled one of the listings in the

regulations (Tr. 20). Between steps three and four, the ALJ found that Plaintiff had the Residual

Functional Capacity (RFC) to: 

[L]ift up to twenty pounds occasionally and ten pounds frequently

in light work that allows for a sit/stand option alternating at will.

[Plaintiff] cannot climb ladders, ropes or scaffold or crawl. She

can frequently climb ramps or stairs. [Plaintiff] can occasionally

stoop, crouching and kneel. [Plaintiff] can occasionally handle

objects (gross manipulation) with the right hand and occasionally

finger (fine manipulation) using the right hand. [Plaintiff] must

avoid concentrated exposure to excessive vibration, concentrated

use of moving machinery and concentrated exposure to

unprotected heights (Tr. 20). 

At step four, the ALJ found that Plaintiff could not perform her previous work as an assembler

nor as a medical assistant. (Tr. 22) At step five, the ALJ found that Plaintiff could perform a

significant number of jobs available in the national economy, such as security guard (4,500 jobs

in the region and 555,000 nationally), childcare worker (3,400 jobs in the region and 411,000

nationally) and parking lot attendant (2,200 jobs in the region and 58,000 nationally) (Tr. 23). 

Thus, the ALJ found that Plaintiff was not disabled.

B. Administrative Record

1. Plaintiff’s Testimony and Statements

Plaintiff provided information in February 2005 about her ability to perform daily and

social activities (Tr. 72-79). When asked which of nineteen activities were affected by her

illnesses, Plaintiff identified only her abilities to lift and use her hands (Tr. 77). Specifically, she

reported problems combing her hair (Tr. 73). However, she reported that she prepared meals
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every day, cleaned, did laundry, ironed and cared for her personal needs (Tr. 73, 74). She further

reported that she went outside every day, and that she drove a car (Tr. 75). Plaintiff also

provided information about her hobbies, interests, and social activities (Tr. 76). Her hobbies

included watching television, baking, and lifting weights, but she reported difficulties engaging

in those activities (Tr. 76). She spent three or four hours a month grocery shopping, and visited

her family and friends daily (Tr. 75-76). She also went to church and to her daughter’s school

(Tr. 76).

Plaintiff also provided detailed information about her activities during three days in July

2005 and three days in May 2007 (Tr. 87-91, 102-05). During these time-frames, Plaintiff

reported that she spent several hours cooking, cleaning, washing clothes, going to the gym,

taking her daughter to the pool, attending church, grocery shopping, and going to Wal-Mart (Tr.

87-91, 102-05). She also watered plants, got gas for her car and paid bills (Tr. 89, 103).

Plaintiff’s attorney stated, at the start of the hearing that Plaintiff could not work because

she had problems with her back and right hand (Tr. 267). Plaintiff testified that the pain caused

her to have difficulties caring for her personal needs, but that she drove three or four times a day,

cooked, vacuumed, made her bed, folded clothes, grocery shopped with her daughter and cleaned

the restroom, performing these activities at a slow pace (Tr. 275-78). She claimed that she had

difficulties sitting for extended periods of time, but she climbed stairs and exercised an hour to

an hour and a half (Tr. 281, 287-88).
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2. Medical Evidence

In December 2002, prior to her alleged onset of disability, Plaintiff had surgery for carpal

tunnel on her right hand (Tr. 210). About three weeks later, Dr. Dong Wha Ohm, M.D., noted

that Plaintiff’s symptoms had improved since the surgery, and that she was now doing active

exercises (Tr. 210). He estimated her recovery time to be about four to six weeks (Tr. 210). 

Several months later, in August 2003, Plaintiff’s primary care physician, Dr. Samuel Dismond,

M.D., referred her to Dr. M.N. Sabbagh, M.D., for reported headaches (Tr. 115-16).

Dr. Sabbagh’s assessment was that Plaintiff’s headaches were related to migraines (Tr.

116). She prescribed medication, and advised Plaintiff to lose weight (Tr. 116). The following

month, Plaintiff had a follow-up appointment (Tr. 114). Dr. Sabbagh noted that the abnormal

findings on an MRI of the brain were quite mild and non-specific (Tr. 114). Therefore, she

advised Plaintiff to continue taking the medications, and suggested that she return for a followup in two months (Tr. 114). Three months later, Plaintiff reported that the medications were

working and that she felt better (Tr. 113). Therefore, Dr. Sabbagh advised that she stay on the

medications, and noted that she would re-evaluate her in six months (Tr. 113).

Two months later, in February 2004, Plaintiff saw Dr. Saeed, apparently an associate of

Dr. Dismond, complaining that she had a migraine headache and pain in her right hand (Tr. 139).

She admitted that she had not been using her wrist support (Tr.139). Dr. Saeed examined

Plaintiff’s hand (Tr. 139). He noted that there was no swelling and that her handgrip was within

normal limits (Tr. 139). Therefore, he continued her on medication, and advised her to use her

wrist support (Tr. 139).
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In May 2004, Plaintiff returned to Dr. Sabbagh for a neurological follow-up appointment 

(Tr. 111). Dr. Sabbagh noted that Plaintiff was responding well to the medication (Tr. 111). 

Plaintiff, however, reported that it made her feel funny (Tr. 111). Dr. Sabbagh noted that

Plaintiff’s migraines were controlled and that she appeared to be doing well (Tr. 111). 

Therefore, she advised her to follow-up in six months (Tr. 111).

In August 2004, Plaintiff returned to Dr. Sabbagh (Tr. 109). Plaintiff reported that she

was having carpal tunnel syndrome symptoms (Tr. 109). Dr. Sabbagh noted that her Tinel’s sign

test was positive, and that an EMG (electromyography) of the right upper extremity showed mild

to moderate carpal tunnel syndrome (Tr. 109). She suggested conservative treatment, rather than

surgical intervention (Tr. 109). She prescribed medication, and advised Plaintiff to wear a wrist

splint at night and use an elbow pad (Tr. 109).

Later that month, Plaintiff went back to Dr. Dismond, complaining of pain in her elbow,

wrist and knee (Tr. 136). Dr. Dismond noted that the examination of Plaintiff’s right knee was

completely negative, that she did not have any swelling, and that her range of motion was good

(Tr. 136). A week later, Plaintiff had a follow-up with her carpal tunnel surgeon, Dr. Ohm (Tr.

119). He noted there was no clinical evidence of recurrent carpal tunnel syndrome (Tr. 119).

Over the next several months, Plaintiff continued to report that she was experiencing pain

(Tr. 133-35). Dr. Dismond ordered an EMG of her right leg and an MRI of her lumbar spine, and

advised her to try water exercises (Tr. 134). However, at a follow-up visit she admitted that she

had not tried the exercises (Tr. 135). The EMG showed a moderate degree of radiculopathy

(nerve root disease) (Tr. 120-21) but the MRI reflected no abnormalities (Tr. 142). Dr. Dismond

advised Plaintiff to participate in physical therapy (Tr. 133).
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In February 2005, after slipping on ice, Plaintiff returned to Dr. Saeed (Tr. 131). Plaintiff

reported that she had pain in her left arm (Tr. 131). However, the examination showed that there

was no swelling and full range of motion (Tr. 131). Dr. Saeed recommended medication as

needed (Tr. 131).

Over the next year, Plaintiff had surgery on her foot and had a benign nodule removed

from her thyroid (Tr. 157, 168). Dr. Dismond noted that she was breathing better after her

thyroid surgery, and Plaintiff reported that she was getting good results from her foot surgery

(Tr. 168).

In September 2005, Plaintiff saw Dr. Sabbagh for a follow-up appointment (Tr. 153). Dr.

Sabbagh noted that her headaches were under control and advised Plaintiff to return for a

reevaluation in six months (Tr. 153). In February 2006, Plaintiff went back to Dr. Saeed

complaining that she had pain in her right wrist (Tr. 167). He prescribed a wrist support (Tr.

167). Two months later, in April 2006, she returned for a follow-up appointment and told Dr.

Dismond that she was exercising regularly, walking about three miles a day, and doing 100 situps three times a week (Tr. 166). He advised her to return for a follow up in three months (Tr.

166). The following month, she went to Dr. Dismond complaining of pain associated with

carpal tunnel syndrome (Tr. 165). She said the pain was intense, but an examination of the right

wrist and hand were unremarkable (Tr. 165).

In May 2006, Dr. Thomas Beird, M.D., wrote a letter to Plaintiff’s attorney about her

current condition (Tr. 159-60). He opined that Plaintiff would require permanent restrictions on

or off the job to prevent further aggravation of her carpal tunnel syndrome (Tr. 160). He

specifically noted that she should avoid the use of vibratory power tools and repetition and
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intensive activities with her right hand (Tr. 160). He further noted that she should wear a splint

on her right hand when performing any job related activities (Tr. 160).

At a follow-up appointment, in October, Plaintiff reported to Dr. Dismond that she was

having problems with her lower back and left hip (Tr. 161). Plaintiff said the pain was

aggravated by driving (Tr. 161). Dr. Dismond noted that she had pain on extreme right straight

leg raising, but her back revealed no spasm or tenderness, and she had good range of motion in

her legs (Tr. 161). He advised her to lose weight and to return in a month, for a follow-up (Tr.

161). The following month, Karen Smith, Plaintiff’s physical therapist, provided an update on

her hand condition (Tr. 203). Ms. Smith noted that Plaintiff reported that there was no

improvement in her pain level or her ability to perform activities of daily living (Tr. 203). She

also noted that Plaintiff’s prehension grasping had decreased (Tr. 203). However, Ms. Smith

noted that there was an improvement in the range of motion in her wrist, her grip strength, her

fine motor coordination, and the edema in her right hand (Tr. 203).

In May 2007, Dr. Sabbagh completed a medical source statement (Tr. 236). She opined

that Plaintiff could occasionally lift and carry 20 pounds, frequently lift and carry 10 pounds,

stand, walk and sit about six hours each in an eight-hour work day, and had a mild limitation on

pushing and pulling with her right upper extremity (Tr. 236). She further opined that Plaintiff

should avoid hammering and use of power tools with her right hand (Tr. 236).

Seven months later, in January 2008, Plaintiff returned to Dr. Dismond, complaining that

she was experiencing pain and numbness in her right hand (Tr. 260). Dr. Dismond noted that the

examination of her right hand and wrist were unremarkable (Tr. 260). As a result, he advised her

to continue on medications and follow up in one month (Tr. 260). Two months later, Plaintiff
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had an MRI of the lumbar spine (Tr. 252). There was slight hypertrophy, but no focal herniation

(Tr. 252). Overall, it was similar to the November 2004 MRI (Tr. 252). In April 2008, Plaintiff

complained that it felt as if someone were sticking her with pins in her left leg, but Dr. Dismond

stated that her sensation seemed good on examination (Tr. 262).

3. Vocational Expert

Ann Tremblay testified during the hearing as an impartial vocational expert (VE) (Tr.

297). Ms. Tremblay classified Plaintiff’s past work as an assembler as light and unskilled, and

her work as a medical assistant as light to medium and skilled (Tr. 298). The ALJ asked Ms.

Tremblay to consider a hypothetical person the same age as Plaintiff, with the same education

and work experience, who was limited to lifting up to 20 pounds occasionally and lifting or

carrying up to 10 pounds frequently; who could not climb ladders, ropes, or scaffolds; who could

frequently climb ramps and stairs; and who could occasionally stoop, crouch and kneel, but

never crawl (Tr. 299). Ms. Tremblay said an individual with the specified characteristics could

perform both of Plaintiff’s past jobs (Tr. 299). 

The ALJ then modified the hypothetical to specify that the individual could frequently

handle objects with the right upper extremity with no limitation on the left upper extremity;

could frequently finger with the right upper extremity with no limitation on the left upper

extremity; and needed to avoid concentrated exposure to moving machinery, unprotected

heights, and excessive vibration (Tr. 299). Ms. Tremblay testified that the individual would be

able to perform Plaintiff’s past assembly position (Tr. 300). 

The ALJ further modified the hypothetical to specify that the individual that would also

be limited to positions that allowed her to sit or stand at will (Tr. 300). Ms. Tremblay testified
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that the individual would not be able to perform Plaintiff’s past work, but could perform other

light unskilled jobs that exist in the national economy such as inspector, assembler or security

guard (Tr. 300). 

The ALJ then modified the hypothetical to include a limitation to occasional, rather than

frequent, fingering and handling with the right upper extremity (Tr. 301). Ms. Tremblay testified

that the individual would still be able to perform various light jobs such as security guard, child

care worker or parking lot attendant (Tr. 301).

The ALJ modified the hypothetical again to provide that the individual would exceed

normal breaks and could not engage in sustained work activity on a regular basis for eight hours

a day and five days a week (Tr. 301). Ms. Tremblay testified that those limitations would be

inconsistent with full-time competitive work (Tr. 301). She testified that her testimony was

consistent with the Dictionary of Occupational Titles (Tr. 302).

C. Plaintiff’s Claims of Error

Plaintiff’s only argument on appeal is that the ALJ erred by failing to properly evaluate

Dr. Sabbagh’s medical opinion (Pl. Br. 9). Specifically, Plaintiff avers that, while the ALJ’s

opinion did mention the medical source statement filled out by Dr. Sabbagh, the ALJ did not

adequately discuss nor analyze the opinion of Dr. Sabbagh.

III. DISCUSSION

A. Standard of Review 

In enacting the Social Security system, Congress created a two-tiered system in which the

administrative agency handles claims, and the judiciary merely reviews the agency determination

for exceeding statutory authority or for being arbitrary and capricious. See Sullivan v. Zebley,
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493 U.S. 521 (1990). The administrative process itself is multifaceted in that a state agency

makes an initial determination that can be appealed first to the agency itself, then to an ALJ, and

finally to the Appeals Council. See Bowen v. Yuckert, 482 U.S. 137 (1987). If relief is not found

during this administrative review process, the claimant may file an action in federal district

court. Id.; Mullen v. Bowen, 800 F.2d 535, 537 (6th Cir. 1986).

This Court has original jurisdiction to review the Commissioner’s final administrative

decision pursuant to 42 U.S.C. § 405(g). Judicial review under this statute is limited in that the

court “must affirm the Commissioner’s conclusions absent a determination that the

Commissioner has failed to apply the correct legal standard or has made findings of fact

unsupported by substantial evidence in the record.” Longworth v. Comm’r of Soc. Sec., 402 F.3d

591, 595 (6th Cir. 2005); Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). In

deciding whether substantial evidence supports the ALJ’s decision, “we do not try the case de

novo, resolve conflicts in evidence, or decide questions of credibility.” Bass v. McMahon, 499

F.3d 506, 509 (6th Cir. 2007); Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). “It is of

course for the ALJ, and not the reviewing court, to evaluate the credibility of witnesses,

including that of the claimant.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir.

2007); Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003) (an “ALJ is not required

to accept a claimant’s subjective complaints and may...consider the credibility of a claimant

when making a determination of disability.”); Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 542

(6th Cir. 2007) (the “ALJ’s credibility determinations about the claimant are to be given great

weight, particularly since the ALJ is charged with observing the claimant’s demeanor and

credibility.”) (quotation marks omitted); Walters, 127 F.3d at 531 (“Discounting credibility to a
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certain degree is appropriate where an ALJ finds contradictions among medical reports,

claimant’s testimony, and other evidence.”). “However, the ALJ is not free to make credibility

determinations based solely upon an ‘intangible or intuitive notion about an individual’s

credibility.’” Rogers, 486 F.3d at 247, quoting, Soc. Sec. Rul. 96-7p, 1996 WL 374186, *4.

If supported by substantial evidence, the Commissioner’s findings of fact are conclusive. 

42 U.S.C. § 405(g). Therefore, this Court may not reverse the Commissioner’s decision merely

because it disagrees or because “there exists in the record substantial evidence to support a

different conclusion.” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006);

Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc). Substantial evidence is “more

than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Rogers, 486 F.3d at 241;

Jones, 336 F.3d at 475. “The substantial evidence standard presupposes that there is a ‘zone of

choice’ within which the Commissioner may proceed without interference from the courts.” 

Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994) (citations omitted), citing, Mullen, 800

F.2d at 545. 

The scope of this Court’s review is limited to an examination of the record only. See

Bass, 499 F.3d at 512-13; Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). When reviewing

the Commissioner’s factual findings for substantial evidence, a reviewing court must consider

the evidence in the record as a whole, including that evidence which might subtract from its

weight. See Wyatt v. Sec’y of Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). “Both

the court of appeals and the district court may look to any evidence in the record, regardless of

whether it has been cited by the Appeals Council.” Heston v. Comm’r of Soc. Sec., 245 F.3d
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528, 535 (6th Cir. 2001). There is no requirement, however, that either the ALJ or the reviewing

court must discuss every piece of evidence in the administrative record. See Kornecky v.

Comm’r of Soc. Sec., 167 Fed. Appx. 496, 508 (6th Cir. 2006) (“[a]n ALJ can consider all the

evidence without directly addressing in his written decision every piece of evidence submitted

by a party.”) (internal citation marks omitted); see also Van Der Maas v. Comm’r of Soc. Sec.,

198 Fed.Appx. 521, 526 (6th Cir. 2006). 

B. Governing Law

The “[c]laimant bears the burden of proving her entitlement to benefits.” Boyes v. Sec’y

of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994); accord, Bartyzel v. Comm’r of Soc.

Sec., 74 Fed.Appx. 515, 524 (6th Cir. 2003). There are several benefits programs under the Act,

including the Disability Insurance Benefits Program (“DIB”) of Title II (42 U.S.C. §§ 401 et

seq.) and the Supplemental Security Income Program (“SSI”) of Title XVI (42 U.S.C. §§ 1381 et

seq.). Title II benefits are available to qualifying wage earners who become disabled prior to the

expiration of their insured status; Title XVI benefits are available to poverty stricken adults and

children who become disabled. F. Bloch, Federal Disability Law and Practice § 1.1 (1984). 

While the two programs have different eligibility requirements, “DIB and SSI are available only

for those who have a ‘disability.’” Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). 

“Disability” means:

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), 1382c(a)(3)(A) (DIB); see also, 20 C.F.R. § 416.905(a) (SSI).
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The Commissioner’s regulations provide that disability is to be determined through the

application of a five-step sequential analysis:

Step One: If the claimant is currently engaged in substantial

gainful activity, benefits are denied without further analysis.

Step Two: If the claimant does not have a severe impairment or

combination of impairments, that “significantly limits...physical or

mental ability to do basic work activities,” benefits are denied

without further analysis.

Step Three: If the claimant is not performing substantial gainful

activity, has a severe impairment that is expected to last for at least

twelve months, and the severe impairment meets or equals one of

the impairments listed in the regulations, the claimant is

conclusively presumed to be disabled regardless of age, education

or work experience.

Step Four: If the claimant is able to perform his or her past

relevant work, benefits are denied without further analysis.

Step Five: Even if the claimant is unable to perform his or her past

relevant work, if other work exists in the national economy that the

claimant can perform, in view of his or her age, education, and

work experience, benefits are denied.

Carpenter v. Comm’r of Soc. Sec., 2008 WL 4793424 (E.D. Mich. 2008), citing, 20 C.F.R. §§

404.1520, 416.920; Heston, 245 F.3d at 534. “If the Commissioner makes a dispositive finding

at any point in the five-step process, the review terminates.” Colvin, 475 F.3d at 730. 

“Through step four, the claimant bears the burden of proving the existence and severity

of limitations caused by her impairments and the fact that she is precluded from performing her

past relevant work.” Jones, 336 F.3d at 474, cited with approval in Cruse, 502 F.3d at 540. If

the analysis reaches the fifth step without a finding that the claimant is not disabled, the burden

transfers to the Commissioner. Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir.

2006). At the fifth step, the Commissioner is required to show that “other jobs in significant
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numbers exist in the national economy that [claimant] could perform given [his] RFC and

considering relevant vocational factors.” Rogers, 486 F.3d at 241; 20 C.F.R. §§ 416.920(a)(4)(v)

and (g). 

C. Analysis and Conclusions

As noted earlier, Plaintiff’s only argument on appeal is that the ALJ erred by failing to

properly evaluate Dr. Sabbagh’s medical opinion (Pl. Br. 9). Defendant responds that the ALJ

not only considered Dr. Sabbagh’s opinion (Tr. 19), but that the ALJ’s findings are almost

completely consistent with Dr. Sabbagh’s opinion (Def. Br. 10-12). Defendant’s argument is

well-taken. 

Dr. Sabbagh opined that Plaintiff could occasionally lift/carry up to 20 pounds, and

frequently lift/carry up to 10 pounds; stand/walk and sit with normal breaks up to 6 hours a day;

had mild upper extremity limitations on pushing and pulling with her upper right extremity,

including the operation of hand and foot controls; should avoid hammering and the use of power

tools with her right hand; and would miss work one to two hours per month (Tr. 236). The ALJ

found that Plaintiff had to avoid concentrated exposure to excessive vibration and concentrated

use of moving machinery, which accounted for Dr. Sabbagh’s specific limitation to avoid the use

of power tools (Tr. 20, 236). Dr. Sabbagh also found that Plaintiff needed to avoid the use of

hammering (Tr. 236). None of the jobs the ALJ found Plaintiff could perform (i.e., security

guard, child care worker, and parking lot attendant) require hammering (Tr. 23) or similar

motions. Dr. Sabbagh also noted that Plaintiff’s limitations would cause her to miss 1 to 2 hours

of work a month (Tr. 236). The VE testified that generally the maximum allowable absences

was one day per month (Tr. 302). As such, it was reasonable for the ALJ to find that Plaintiff
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could perform the jobs identified by the VE, notwithstanding Plaintiff’s impairments (Tr. 23). 

The ALJ properly accounted for all of Dr. Sabbagh’s limitations when arriving at Plaintiff’s

RFC.

Indeed, the ALJ’s findings as to Plaintiff residual functional capacity (RFC) actually

included many greater restrictions than those reflected in Dr. Sabbagh’s opinion – unlike Dr.

Sabbagh, the ALJ also found that Plaintiff could not climb ladders, ropes, scaffolds, or crawl;

could only stoop, crouch, and kneel occasionally; must avoid moving machinery, and

unprotected heights; and needed a sit-stand option (Tr. 19, 20).

Plaintiff does not argue that the ALJ erred in adopting Dr. Sabbagh’s opinion. Rather,

Plaintiff argues that the ALJ failed to comply with the Agency’s regulations, because he did not

provide good reasons for rejecting it (Pl. Br. 8). The premise of Plaintiff’s argument is wrong. 

In Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 547 (6th Cir. 2004), the Sixth Circuit held that

“if the Commissioner adopts the opinion of the treating source or makes findings consistent with

the opinion, it may be irrelevant that the ALJ did not give weight to the treating physician’s

opinion, and the failure to give reasons for not giving such weight is correspondingly irrelevant.” 

Since, the ALJ’s decision is consistent with Dr. Sabbagh’s opinion, the absence of a specific

discussion about how much weight the ALJ gave the opinion is simply not reversible error.

Furthermore, the ALJ was entitled to rely on Dr. Sabbagh’s opinion because it was

consistent with the medical evidence and did not conflict with any other opinions of record. See

20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2) (treating physician’s medical opinion entitled to

controlling weight if supported by medical evidence and not inconsistent with other substantial

evidence); Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 660 (6th Cir. 2009) (citing regulation).
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In sum, after review of the record, I conclude that the decision of the ALJ, which ultimately

became the final decision of the Commissioner, is within that “zone of choice within which

decisionmakers may go either way without interference from the courts,” Felisky, 35 F.3d at

1035, as the decision is supported by substantial evidence. 

III. RECOMMENDATION

Based on the foregoing, it is RECOMMENDED that Plaintiff’s motion for summary

judgment be DENIED, that Defendant’s motion for summary judgment be GRANTED and that

the findings and conclusions of the Commissioner be AFFIRMED.

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) and Fed.R.Civ.P. 72(b)(2). Failure to file specific

objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140

(1985); Howard v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir. 1991); United States v.

Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). The 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

opposing party may file a response. The response shall be no more than 20 pages in length
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unless, by motion and order, the page limit is extended by the court. The response shall address 

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

S/Mark A. Randon 

MARK A. RANDON

UNITED STATES MAGISTRATE JUDGE

Dated: September 20, 2010

Certificate of Service

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

date, September 20, 2010, by electronic and/or ordinary mail.

S/Barbara M. Radke 

Judicial Assistant