Christian v. Commissioner of Social Security Administration

Filing 12

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Penny L Christian. The Court RECOMMENDS that the Plaintiffs Statement of Errors be OVERRULED and AFFIRM the Commissioners decision. Objections to R&R due by 8/8/2017. Signed by Magistrate Judge Elizabeth Preston Deavers on July 25, 2017. (jlk)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

PENNY L. CHRISTIAN,
Plaintiff,
Civil Action 2:16-cv-398
Judge James L. Graham
Magistrate Judge Elizabeth P. Deavers

v.

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

REPORT AND RECCOMENDATION
Plaintiff, Penny L. Christian, brings this action under 42 U.S.C. § 405(g) for review of a
final decision of the Commissioner of Social Security (“Commissioner”) denying her application
for supplemental social security income (“SSI”) and disability insurance benefits (“DIB”). This
matter is before the United States Magistrate Judge for a Report and Recommendation on
Plaintiff’s Statement of Errors (ECF No. 9), the Commissioner’s Memorandum in Opposition
(ECF No. 10), Plaintiff’s Reply in Support (ECF No. 11), and the administrative record. (ECF
No. 8.) For the reasons that follow, the undersigned RECCOMENDS that the Court
OVERRULE Plaintiff’s Statement of Errors and AFFIRM the Commissioner’s decision.
I.

BACKGROUND

Plaintiff filed her application for benefits on February 17, 2012 alleging disability
beginning February 11, 2000. 1 (R. at 210–19.) Plaintiff’s applications were denied initially on
July 2, 2012 and upon reconsideration on January 11, 2013. (R. at 111–17, 121–32.) Plaintiff
1

Although the ALJ stated Plaintiff’s alleged onset date was July 1, 198, Plaintiff’s applications
reflect that she alleged disability as of February 11, 2000. (R. at 16, 210, 214, 242.)
1

sought a de novo hearing before an administrative judge. Administrative Law Judge
Shaughnessy (“ALJ”) held a hearing on October 30, 2014, at which Plaintiff, represented by
counsel, appeared through video and testified. (R. at 30–56.) Mark Pinti, Ph. D., a vocational
expert, also appeared and testified at the hearing. On December 18, 2014, the ALJ issued a
decision finding that Plaintiff was not disabled within the meaning of the Social Security Act.
On March 20, 2016, the Appeals Council denied Plaintiff’s request for review and adopted the
ALJ’s decision as the Commissioner’s final decision. Plaintiff then timely commenced the
instant action.
In her Statement of Errors, Plaintiff raises two issues. (Plaintiff’s Statement of Errors
(“SOE”) at 1, ECF No. 8.) Plaintiff asserts that although the ALJ found that Plaintiff’s carpal
tunnel syndrome constituted a severe impairment, the ALJ’s residual functional capacity
(“RFC”) did not include corresponding work related manipulative limitations. (Id.) Likewise,
Plaintiff contends that the ALJ inappropriately relied on the vocational expert’s testimony
because the controlling hypothetical incorporated the ALJ’s RFC and was therefore inadequate.
(Id.)
II.

HEARING TESTIMONY

A. Plaintiff’s Testimony
Plaintiff testified that she lives alone, has a driver’s license, and drives when she has a
doctor’s appointment. (R. at 34.) Plaintiff testified that she graduated high school. (R. at 35.)
In 2011, Plaintiff worked as a home health aide. (Id.) She testified that she was unable to
continue working because she is in pain. “I can’t really use my hands. They get numb and
tingling. I’ve got to have surgery on my right hand this coming month. And my left is messed
up, too. My neck, my back, my knees and feet. Pretty much basically everything.” (R. at 36.)
2

When asked what Plaintiff is able to do with her hands she testified that she “can scratch and I
can hold things for a little bit, but then they – I get real sharp shooting pains and stuff down to
my fingers. And they, like, burn and stuff.” (R. at 41.)
When asked about her typical day, Plaintiff testified that she watches the news, cleans her
house, does a little bit of cooking, washes the dishes, does laundry, and she occasionally shops
for groceries. (Id.) She testified that she can sit for “maybe a half hour” at a time before she
would need to lie down. Plaintiff further testified that she cannot have a sedentary job where she
would use her hands because she is not able to feel very well with her hands and she drops
things. (R. at 43.) She also testified that she is unable to work the buttons on a button up shirt or
open a jar. (R. at 44.)
B. Vocational Expert
The vocational expert (“VE”) testified at the administrative hearing that Plaintiff’s past
relevant employment as a nurse assistant was a medium and semiskilled position and her position
as a home health aide was also a medium and semiskilled position. (R. at 50–51.)
The ALJ proposed a series of hypotheticals regarding Plaintiff’s residual functional
capacity (“RFC”) to the VE. (R. at 51–52.) Based on Plaintiff’s age, education, work
experience, and residual functional capacity, the VE testified that a similarly situated
hypothetical individual could not perform Plaintiff’s past work, but could perform approximately
the requirements of representative occupations such as housekeeping cleaner, of which there are
4,000 jobs regionally and 300,000 jobs nationally; machine tender, of which there are 2,500 jobs
regionally and 175,000 jobs nationally; and laundry or garment folder, of which there are 600
jobs regionally and 70,000 jobs nationally. (Id.)

3

III.

MEDICAL RECORDS 2

A. Dr. Patrick Ball
Plaintiff began to see Dr. Patrick Ball on May 6, 2011, after not visiting him for years.
(R. at 431.) According to Dr. Ball’s notes, Plaintiff reported back and neck pain but did not
complain of wrist pain or other pain related to carpal tunnel syndrome. (R. at 431.) On August
8, 2011, Dr. Ball noted “[n]umbess in arms and hands worse on the right” and “[h]as decreased
grip bilaterally but symmetrical.” (R. at 445–46.) Dr. Ball listed six different diagnoses in his
notes but did not list carpal tunnel syndrome after this appointment. (R. at 446.) At an
appointment with Dr. Ball on September 22, 2011, Plaintiff reported pain and stated that the
“pain pills don’t seem to be helping as much.” (R. at 440.) However, Dr. Ball noted that
Plaintiff’s toxicity screen showed an absence of the oxycodone she was prescribed. (Id.) When
asked about why she was not taking the prescribed pain medication, Plaintiff reported that she
was working 96 hours a week and that she cannot take the medication when working. (Id.)
On September 22, 2011, a nerve conduction velocity electromyography test (“NVC
EMG”) was performed. (R. at 401–02.) The exam revealed “bilateral distal median neuropathy
that is mild to moderate on the right and mild on the left side.” (R. at 401.) The clinical history
revealed that Plaintiff underwent an EMG in 2009 where evidence of left carpal tunnel syndrome
and left C6-7 probable radiculopathy were found. (Id.)
On October 21, 2011, Plaintiff reported that she was experiencing “terrible pain.” (R. at
452.) After reviewing her chart, Dr. Ball noted that Plaintiff “does have some findings but seems
out of proportion to her pain I brought this up. I told her [that I] felt uncomfortable writing
pretty strong narcotics with rather scant findings on all of her tests. She is insistent that her pain
2

The Court limits its analysis of the medical evidence to the issues raised in Plaintiff’s Statement
of Errors, namely the ALJ’s determinations with regard to Plaintiff’s carpal tunnel syndrome.
4

is severe.” (Id.) Dr. Ball also documented “positive Tinel’s bilaterally.” (R. at 454.) Dr. Ball
did not provide any limitations.
B. State Agency Medical Consultant Dr. James Cacchillo
State agency medical consultant Dr. James Cacchillo reviewed Plaintiff’s records on June
28, 2012 as part of the initial determination on her claim. (R. at 58–68, 70–80.) Dr. Cacchillo
assessed severe medical impairments of “Disorders of Back-Discogenic and Degenerative” and
“Essential Hypertension.” (R. at 63, 75.) Dr. Cacchullo determined that Plaintiff’s RFC
permitted the ability to occasionally lift and/or carry twenty pounds, frequently lift and/or carry
ten pounds, stand and/or walk about six hours in an eight-hour workday, sit about six hours in an
eight-hour workday, frequently climb ramps/stairs, occasionally climb ladders/ropes/scaffolds,
frequently stoop, occasionally kneel, frequently crouch, and occasionally crawl, and also
Plaintiff should avoid concentrated exposure to hazards. (R. at 65–67, 77–79.) Dr. Cacchillo
specifically addressed Plaintiff’s alleged carpal tunnel by finding, “there is no evidence in
available MER of persistent weakness in hands or abnormal physical exam ([i.e.] weakness,
atrophy, dec[.] grip, etc[.]) that would cause handling/manipulative problems.” (R. at 66, 78.)
C. Dr. Teresita Cruz
Dr. Teresita Cruz evaluated Plaintiff’s physical RFC, repeating Dr. Cacchillo’s earlier
assessment. (R. at 90–92, 105–107.) She noted Plaintiff “alleges carpal tunnel-EMG 9/11 with
mild-mod right and mild left-there is no evidence in available MER of persistent weakness in
hands or abnormal physical exam ([i.e.] weakness, atrophy, dec grip, etc) that would cause
handling/manipulative problems.” (R. at 92.)

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IV.

ADMINISTRATIVE DECISION

On December 18, 2014, the ALJ issued her decision. (R. at 14–24.) At step one of the
sequential evaluation process, 3 the ALJ found that Plaintiff had not engaged in substantially
gainful activity since July 1, 1985, the alleged onset date of the disability. (R. at 16.) The ALJ
found that Plaintiff had the severe impairments of degenerative disc disease of the lumbar spine,
carpal tunnel syndrome, asthma, and major depressive disorder. (R. at 17.)
The ALJ further found that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled one of the listed impairments described in 20 C.F.R.
Part 404, Subpart P, Appendix 1. (R. at 17.) At step four of the sequential process, the ALJ set
forth Plaintiff’s RFC as follows:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in
20 CFR 404.1567(b) and 416.967(b) except she cannot climb ladders, ropes or
scaffolds; can kneel and crawl occasionally; should avoid concentrated exposure
to hazards; and is limited to tasks that are routine and static in nature.

3

Social Security Regulations require ALJs to resolve a disability claim through a five-step
sequential evaluation of the evidence. See 20 C.F.R. §416.920(a)(4). Although a dispositive
finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th
Cir. 2007), if fully considered, the sequential review considers and answers five questions:
1.
2.
3.

4.
5.

Is the claimant engaged in substantial gainful activity?
Does the claimant suffer from one or more severe impairments?
Do the claimant’s severe impairments, alone or in combination, meet or
equal the criteria of an impairment set forth in the Commissioner’s Listing of
Impairments, 20 C.F.R. Subpart P, Appendix 1?
Considering the claimant's residual functional capacity, can the claimant
perform his or her past relevant work?
Considering the claimant's age, education, past work experience, and residual
functional capacity, can the claimant perform other work available in the national
economy?

See 20 C.F.R. §416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);
Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
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(R. at 19.) In reaching this determination, the ALJ found that the objective medical evidence in
the record inconsistent with Plaintiff’s subjective allegations of pain and limitation.
Specifically, the ALJ reasoned that although Plaintiff “alleged debilitating back, neck,
foot, and essentially, her entire body, pain, physical examinations of record have remained
relatively unremarkable.” (R. at 20.) Moreover, the ALJ found Plaintiff’s allegations
concerning the intensity, persistence, and limiting effects of her symptoms lacked credibility.
(R. at 22.) For example, the ALJ noted that Plaintiff’s allegations about the severity of her
physical and mental impairments are inconsistent with her own reports about her activities of
daily living. “The claimant testified that she has pain in her entire body daily and that she can
only stand for 10-15 minutes and can lift a maximum of 13 pounds, but the evidence showed that
she took care of her grandchild, who was three-years-old in 2012, and would certainly weigh
more than 13 pounds.” (R. at 22.) The ALJ further noted that Plaintiff was prescribed
Oxycodone, but it did not show up in her toxicity screen, which she stated was because she could
not take it at work, another example of how her complaints of pain are out of proportion with her
actions. (R. at 22, 440.) Furthermore, the ALJ noted that Plaintiff’s doctor told her that he felt
uncomfortable prescribing strong narcotics with rather scant findings on tests and that her missed
appointments and narcotic history caused the doctor to raise “red flags,” all of which to suggest
that Plaintiff is not as limited as alleged. (R. at 22.)
The ALJ gave “great weight” to the State agency medical consultants’ physical
assessments, explaining that the assessments are generally consistent with the medical evidence
in concluding that the claimant is capable of performing a light residual functional capacity, and
that she is limited to tasks that are routine, repetitive, and static in nature.” (R. at 22–23.)

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In regards to Plaintiff’s complaints in relation to carpal tunnel syndrome, the ALJ found
as follows:
The claimant was also diagnosed with carpal tunnel syndrome, but it was found to
be negative for tinel or phalen signs bilaterally. Several records showed that it
was worse on the right side, but she was given bilateral wrist splints to wear in
order to ease the carpal tunnel syndrome pain.
(R. at 21.)
Relying on the VE’s testimony, the ALJ concluded that Plaintiff can perform jobs
existing in the national and local economy. She therefore concluded that Plaintiff was
not disabled under the Social Security Act.
V.

STANDARD OF REVIEW

When reviewing a case under the Social Security Act, the Court “must affirm the
Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to
proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. §
405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is
defined as ‘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 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).
Although the substantial evidence standard is deferential, it is not trivial. The Court must
“take into account whatever in the record fairly detracts from [the] weight” of the
Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial

8

evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is
substantial evidence in the record that would have supported an opposite conclusion.’” Blakley
v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.
1997)). Finally, even if the ALJ’s decision meets the substantial evidence standard, “a decision
of the Commissioner will not be upheld where the [Social Security Administration] fails to
follow its own regulations and where that error prejudices a claimant on the merits or deprives
the claimant of a substantial right.” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc.
Sec., 478 F.3d 742, 746 (6th Cir. 2007)).
VI.

ANALYSIS

In her Statement of Errors, Plaintiff argues that the ALJ’s formulation of her RFC failed
to include limiting effects related to her carpal tunnel syndrome and that as a result of the
incomplete RFC, the VE’s testimony was inadequate in fully accounting for Plaintiff’s
limitations. (SOE at 1.)
A. The ALJ did not err by failing to account for Plaintiff’s carpal tunnel syndrome in
the RFC
In her first assignment of error, Plaintiff argues that the ALJ inadequately formulated her
RFC because she failed to include limiting effects relating to her carpal tunnel syndrome.
Plaintiff contends that because the ALJ found Plaintiff’s carpal tunnel to be a “severe impairment
it must significantly limit the physical ability to perform basic work activities such as walking,
standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling.” (SOE at 6.) As a
result, Plaintiff asserts that “the ALJ’s lack of any corresponding work related manipulative
activities limitations . . . in Plaintiff’s RFC assessment . . . renders the ALJ’s RFC determination
unsupported by substantial evidence.” (Id.)

9

As a threshold matter, Plaintiff incorrectly argues that because an impairment is found
‘severe’ at step two, the ALJ must include that impairment in the RFC. A determination of
‘severe’ at step two is a “de minimus hurdle . . . intended to ‘screen out totally groundless
claims.” Nejat v. Comm'r of Soc. Sec., 359 F. App'x 574, 576 (6th Cir. 2009) (citing Farris v.
Sec’y of Health & Human Servs., 773 F.2d 85, 89 (6th Cir. 1985)). Thus, if an impairment has
“more than a minimal effect” on the claimant’s ability to do basic work activities, the ALJ must
treat it as “severe.” Soc. Sec. Rul. 1996 WL 374181, at *1 (1996). Accordingly, “[a] claimant’s
severe impairment may or may not affect his or her functional capacity to do work. One does
not necessarily establish the other.” Griffeth v. Comm’r of Soc. Sec., 217 F. App’x 425, 429 (6th
Cir. 2007); Little v. Comm’r of Sec. Sec., No. 2:14-cv-532, 2015 WL 5000253, at *14–15 (S.D.
Ohio Aug. 24, 2015) (holding ALJ “was not obligated . . . to include any additional limitations
that specifically addressed Plaintiff’s IBS simply because he determined that her IBS was a
severe condition at step two.”).
Rather, a plaintiff’s RFC “is defined as the most a [plaintiff] can still do despite the
physical and mental limitations resulting from her impairments.” Poe v. Comm’r of Soc. Sec.,
342 F. App’x 149, 155 (6th Cir. 2009); see also 20 C.F.R. §§ 404.1545(a), 416.945(a). The
determination of RFC is an issue reserved to the Commissioner. 20 C.F.R. §§ 404.1527(e),
416.927(e). Nevertheless, substantial evidence must support the Commissioner’s RFC finding.
Berry v. Astrue, No. 1:09CV000411, 2010 WL 3730983, at *8 (S.D. Ohio June 18, 2010). When
considering the medical evidence and calculating the RFC, “ALJs must not succumb to the
temptation to play doctor and make their own independent medical findings.” Simpson v.
Comm’r of Soc. Sec., 344 F. App’x 181, 194 (6th Cir. 2009) (quoting Rohan v. Chater, 98 F.3d
966, 970 (7th Cir. 1996)); see also Isaacs v. Astrue, No. 1:08–CV–00828, 2009 WL 3672060, at
10

*10 (S.D. Ohio Nov. 4, 2009) (holding that an “ALJ may not interpret raw medical data in
functional terms”) (internal quotations omitted).
An ALJ is required to explain how the evidence supports the limitations that he or she set
forth in the claimant’s RFC:
The RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts (e.g., laboratory
findings) and nonmedical evidence (e.g., daily activities, observations).
In
assessing RFC, the adjudicator must discuss the individual’s ability to perform
sustained work activities in an ordinary work setting on a regular and continuing
basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and
describe the maximum amount of each work-related activity the individual can
perform based on the evidence available in the case record. The adjudicator must
also explain how any material inconsistencies or ambiguities in the evidence in
the case record were considered and resolved.
S.S.R. 96–8p, 1996 WL 374184, at *6–7 (internal footnote omitted).
Additionally, the ALJ must consider all medical opinions that he or she receives in
evaluating a claimant’s case. 20 C.F.R. § 416.927(d). The applicable regulations define medical
opinions as “statements from physicians . . . that reflect judgments about the nature and severity
of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do
despite impairment(s), and your physical or mental restrictions.” 20 C.F.R. § 416.927(a)(2).
In her written decision, the ALJ found that Plaintiff had the RFC to perform light work,
except she could not climb ladders, ropes, or scaffolds; could kneel and crawl occasionally;
needed to avoid concentrated exposure to hazards; and was limited to tasks that were routine,
repetitive, and static in nature. (R. at 19.) To reach this determination, the ALJ properly
considered the objective medical findings, the medical source opinions, and Plaintiff’s treatment
history, daily activities, and subjective complaints. (R. at 16–22.)

11

Plaintiff has not shown that the ALJ erred by not including limitations in the RFC on
reaching, handling/fingering, and lifting. Plaintiff points to her own testimony at the ALJ
hearing regarding pain, numbness, tingling, weakness, and difficulty using her hands to
demonstrate that she has difficulties using her hands. (SOE at 6–7.) Plaintiff’s own subjective
complaints, however, are insufficient. See 42 U.S.C. § 423(d)(5)(A) (subjective complaints of
“pain or other symptoms shall not alone be conclusive evidence of disability”). Moreover,
substantial evidence supports the ALJ’s determination that Plaintiff’s subjective complaints of
disabling symptoms and limitations lacked credibility. (R. at 20.)
Plaintiff’s medical records provide substantial evidence to support the ALJ’s RFC. The
medical records do not provide objective evidence that Plaintiff’s RFC needed to include further
limitations for her carpal tunnel syndrome. Plaintiff argues that her decreased grip strength,
indicated on August 2011, is objective medical evidence that more limitations are necessary.
Examination findings related to Plaintiff’s upper extremities however generally came back
normal, including normal strength, coordination, and range of motion. (R. at 356, 362–63, 364,
432–33, 437–38, 441–42, 445–46, 449, 453–54, 547–58, 462, 465–66, 469–70, 479, 486–87,
492–93, 529, 534–35, 538–39, 541, 544, 562–63, 567, 570, 575–76, 601–03, 609, 618–19.)
On October 4, 2011, Plaintiff tested negative for “tinel or phalen bilaterally.” (R. at 449.)
In response to this objective evidence, Plaintiff argues that “[w]hile the ALJ’s indication of
negative tinel and phalen signs of October 4, 2011, is accurate, the ALJ ignores positive tinels
documented later that same month on October 21, 2011. . .” (SOE at 11.) While Plaintiff did
test positive for tinels on October 21, 2011, Dr. Ball did not assess carpal tunnel syndrome at that
visit. (R. at 454.) Dr. Ball rather reported in his notes that “[s]he does have some findings but

12

seems out of proportion to her pain I brought this up. I told her [that I] felt uncomfortable writing
pretty strong narcotics with rather scant findings on all of her tests.” (R. at 452.)
Moreover, no doctor imposed limitations on Plaintiff due to carpal tunnel syndrome.
Poppinger v. Colvin, No. 2:14-cv-492, 2015 WL 1245975, at *6 (S.D. Ohio Mar. 18, 2015)
(holding substantial evidence supported ALJ’s determination that the record lacked sufficient
objective or credible evidence of any functional limitations posed by claimant’s incontinence
where treating urologist did not state that claimant’s incontinence functionally limited her ability
to work). Furthermore, Plaintiff’s reported daily activities also support the ALJ’s RFC
determination. Plaintiff’s testimony revealed inconsistency in the limitations she requests and
her daily activities she; cooks, cleans, does laundry, drives, and takes care of her grandson. See
20 C.F.R. § 404.1529(c)(3)(i) (daily activities may be useful to assess nature and severity of
claimant’s symptoms); cf. Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 392 (6th Cir. 2004)
(“The administrative law judge justifiably considered [the claimant’s] ability to conduct daily life
activities in the face of his claim of disabling pain.”).
Because the Undersigned finds that the ALJ’s decision to not include limitations in the
RFC formulation on reaching, handling/fingering, and lifting was supported by substantial
evidence, it is RECCOMENDED that Plaintiff’s first contention of error be OVERRULED.
B. The Vocation Expert based his hypothetical on all necessary limitations.
In her second assignment of error, Plaintiff argues that the Vocational Expert’s testimony
was inappropriate because the controlling hypothetical given to the Vocation Expert did not fully
account for Plaintiff’s limitations.
It is “well established an ALJ may pose hypothetical questions to a vocational expert and
is required to incorporate only those limitations accepted as credible by the finder of fact.”
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Carrelli v. Comm’r of Soc. Sec., 390 F. App’x 429, 438 (6th Cir. 2010) (quoting Casey v. Sec’y
of Health and Hum. Servs., 987 F.2d 1230, 1235 (6th Cir. 1993)). “In order for a vocational
expert’s testimony in response to a hypothetical question to serve as substantial evidence in
support of the conclusion that a claimant can perform other work, the question must accurately
portray a claimant’s physical and mental impairments.” Parks v. Soc. Sec. Admin., 413 F. App’x
856, 865 (6th Cir. 2011) (quoting Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 516 (6th Cir.
2010); see also Payne v. Comm’r of Soc. Sec., 402 F. App’x 109, 118 (6th Cir. 2010) (“If the
ALJ relies on a vocational expert’s testimony in response to a hypothetical to conclude that the
claimant is capable of performing a number of jobs, the hypothetical question must describe the
claimant in all significant, relevant respects.”). “[A]lthough a hypothetical question need not
incorporate a listing of the claimant’s medical conditions, the vocational expert's testimony, to be
reliable, must take into account the claimant's functional limitations, i.e., what he or she ‘can and
cannot do.’” Infantado v. Astrue, 263 F. App'x 469, 476 (6th Cir. 2008) (citing Webb v. Comm’r
of Soc. Sec., 368 F.3d 629, 632-33 (6th Cir. 2004)).
Plaintiff’s second contention of error necessarily fails based on the Undersigned’s
determination that the ALJ did not err in her RFC formulation. Plaintiff contends that the
hypothetical upon which the VE based his testimony was incomplete because it does not account
for limitations on reaching, handling/fingering, and lifting. (SOE at 15–16.) Because the
Undersigned finds that the VE based his testimony on a hypothetical that accurately portrays
Plaintiff’s physical and mental impairments, it is RECOMMENDED that Plaintiff’s second
contention of error be OVERRULED.

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I.

CONCLUSION

In sum, from a review of the record as a whole, the Undersigned concludes that
substantial evidence supports the ALJ’s decision denying benefits. Accordingly, it is
RECCOMENDED that the Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM
the Commissioner of Social Security’s decision.
II.

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, he or
she may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to

15

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).
IT IS SO ORDERED.

Date: July 25, 2017

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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