Jackson v. Commissioner of Social Security

Filing 9

REPORT AND RECOMMENDATIONS Re: 2 Complaint filed by Kenneth Jackson. IT IS THEREFORE RECOMMENDED THAT: 1. The Commissioner's final non-disability finding be found supported by substantial evidence, and AFFIRMED; and 2. This case be CLOSED. Objections to R&R due by 11/30/2012. Signed by Magistrate Judge Michael J Newman on 11/13/12. (cib1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
KENNETH JACKSON,

:

Case No. 3:11-cv-358

Plaintiff,

:

District Judge Thomas M. Rose
Magistrate Judge Michael J. Newman

vs.

:

COMMISSIONER OF
SOCIAL SECURITY,

:

Defendant.

:

REPORT AND RECOMMENDATION1 THAT: (1) THE ALJ’S NON-DISABILITY
FINDING BE FOUND SUPPORTED BY SUBSTANTIAL EVIDENCE, AND
AFFIRMED; AND (2) THE CASE BE CLOSED

This is a Social Security appeal brought pursuant to 42 U.S.C. § 405(g) and §1383(c). At
issue is whether the Administrative Law Judge (“ALJ”) erred in finding that Plaintiff Kenneth
Jackson (“Plaintiff”) was not “disabled,” and therefore unentitled to Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”).
This case is before the Court upon Plaintiff’s Statement of Errors (doc. 6), the
Commissioner’s Memorandum in Opposition (doc. 7), Plaintiff’s Reply (doc. 8), the
administrative record, and the record as a whole.

1

Attached hereto is NOTICE to the parties regarding objections to this Report and
Recommendation.

I. BACKGROUND
A. Procedural History
Plaintiff filed his applications for DIB and SSI in August 2008, asserting that he has been
under a “disability” since March 31, 2004.

See Administrative Transcript (“Tr.”) 117-42.

Plaintiff claims he is disabled due to back pain. Tr. 151.
Following initial administrative denial of his applications, Plaintiff received a video
hearing before ALJ Roy Richardson on September 27, 2010. Tr. 22-49. On November 9, 2010,
ALJ Richardson issued a written decision, concluding that Plaintiff was not “disabled.” Tr. 1117.
Specifically, the ALJ’s “Findings,” which represent the rationale of his decision, were as
follows:
1.

The claimant meets the insured status requirements of the Social Security
Act through March 31, 2009.

2.

The claimant has not engaged in substantial gainful activity since March
31, 2004, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et
seq.).

3.

The claimant has the following severe impairments: Degenerative disc
disease, arthralgia, and chronic obstructive pulmonary disease (20 CFR
404.1520(c) and 416.920(c)).

4.

The claimant does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926).

5.

After careful consideration of the entire record, the [ALJ] finds that the
claimant has the residual functional capacity [“RFC”] to lift/carry 10
pounds frequently and 20 pounds occasionally, stand/walk 6 hours in an 8hour workday, and sit 6 hours in an 8-hour workday. The claimant’s
ability to push/pull would be limited to the weights given. The claimant
would be unable to climb ramps, stairs, ladders, ropes, or scaffolds. He is
limited to occasional kneeling, stooping, crouching, or crawling. The
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claimant would need to avoid concentrated exposure to smoke, dust
fumes, gases, and temperature extremes.
6.

The claimant is unable to perform any past relevant work (20 CFR
404.1565 and 416.965).

7.

The claimant was born on January 29, 1961 and is currently 49 years old,
which is defined as a younger individual age 18-49 (20 CFR 404.1563 and
416.963).

8.

The claimant has a limited education and is able to communicate in
English (20 CFR 404.1564 and 416.964).

9.

Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not the
claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404,
Subpart P, Appendix 2).

10.

Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR 404.1569,
404.1569(a), 416.969, and 416.969(a)).

11.

The claimant has not been under a disability, as defined in the Social
Security Act, from March 31, 2004, through the date of this decision (20
CFR 404.1520(g) and 416.920(g)).

Tr. 13-17.
Thereafter, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s
non-disability finding the final administrative decision of the Commissioner. Tr. 2-7. See Casey
v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). Plaintiff then filed this
timely appeal on October 14, 2011. Doc. 2.
B.

Plaintiff’s Testimony

Plaintiff testified at the administrative hearing that he is unable to work because of pain
in his lower back and legs, left shoulder pain, and chronic obstructive pulmonary disease
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(“COPD”). Tr. 27. Plaintiff described his lower back pain as “constant,” and testified that the
pain radiates into his right leg.

Id.

His medication includes Tramadol, Combivent, and

Albuterol. Tr. 27, 33. Plaintiff also spoke about experiencing pain in his left shoulder when
lifting. Tr. 27-28.
Regarding his activities of daily living, Plaintiff testified that he does housework, yard
work, cooking, and household repairs, but noted that it takes him a significant amount of time to
do these things. Tr. 28-30. He sometimes goes grocery shopping, but does not have a driver’s
license because he lost it due to a DUI. Tr. 28-31. He testified that he takes care of his three
year-old son while his wife works full-time. Tr. 28.
Plaintiff testified that he is skilled in carpentry and that he installed new kitchen cabinets
and flooring in his mobile home during the twelve months prior to the hearing.

Tr. 29.

Nevertheless, he testified that he did those tasks slowly, and had to limit his activities for several
days afterwards. Tr. 37. He also described difficulty with basic daily activities, such as putting
on pants and getting into and out of the bathtub. Tr. 31. He testified that his pain will sometimes
flare up when he is doing nothing more than sitting, and that his pain is so significant that he is
unable to do anything two or three days per week. Tr. 38.
Plaintiff estimated he can sit for 30-45 minutes, stand for 10-15 minutes, and walk one
block before experiencing significant symptoms of pain. Tr. 32. He can lift his 3-year old son,
who weighs approximately 26-28 pounds. Tr. 31-32.
When questioned by his attorney, Plaintiff described the effect pain has on his focus and
concentration, stating, “Well, when you’re working, and you’re sitting there in pain, and you
have a hard time focusing on the job that’s on hand, and you know, I’m not going to do a good
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job if I’m sitting there hurting.” Tr. 36. Plaintiff also discussed problems with arthritis in his
hands. Tr. 34. As a result, he reportedly drops things, and has difficulty with buttons and small
tools. Tr. 34-35.
C.

Vocational Expert Testimony

Terry Vander-Molen, a vocational expert (“VE”), also testified at the hearing. Tr. 39-47.
The ALJ proposed a series of hypotheticals regarding Plaintiff’s residual functional capacity
(“RFC”) to the VE. See id. Based on Plaintiff’s age, education, work experience and RFC, the
VE testified that a significant number of jobs -- such as small parts assembler, with 10,000 jobs;
housekeeper, with 30,000 jobs; and sales attendant, with 9,000 jobs -- exist in the regional
economy which Plaintiff can perform. Tr. 41-44. The VE stated that his job findings were
consistent with the information found in the Dictionary of Occupational Titles (“DOT”). Tr. 44.
The VE next testified that if an individual missed two days of work a month on a fairly regular
basis, they would be not be able to maintain competitive employment. Tr. 45.
When examined by Plaintiff’s counsel, the VE testified that if additional limitations -- to
low stress work, no production quotas, and a static work environment -- were imposed, the
aforementioned jobs would be precluded. Tr. 68-69.
II. APPLICABLE LAW
A.

Substantial Evidence Standard

The Court’s inquiry on a Social Security appeal is to determine (1) whether the ALJ’s
non-disability finding is supported by substantial evidence, and (2) whether the ALJ employed
the correct legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742,74546 (6th Cir. 2007). In performing this review, the Court must consider the record as a whole.
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Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). When
substantial evidence supports the ALJ’s denial of benefits, that finding must be affirmed, even if
substantial evidence also exists in the record upon which the ALJ could have found plaintiff
disabled. Id.
The second judicial inquiry -- reviewing the correctness of the ALJ’s legal analysis -may result in reversal even if the ALJ’s decision is supported by substantial evidence in the
record. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). Thus, “a decision of
the Commissioner will not be upheld where the SSA fails to follow its own regulations and
where that error prejudices a claimant on the merits or deprives the claimant of a substantial
right.” Bowen, 478 F.3d at 746.
B.

“Disability” Defined

To qualify for disability benefits, a claimant must suffer from a medically determinable
physical or mental impairment that can be expected to result in death or that 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).2
The impairment must render the claimant unable to engage in the work previously performed or
in any other substantial gainful employment that exists in the national economy. 42 U.S.C.
§ 423(d)(2).
Administrative regulations require a five-step sequential evaluation for disability
determinations. 20 C.F.R. §§ 404.1520, 416.920. Although a dispositive finding at any step ends

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the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete
sequential review poses five questions:
1.

Has the claimant engaged in substantial gainful activity?

2.

Does the claimant suffer from one or more severe impairments?

3.

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 (the Listings), 20 C.F.R. Subpart P, Appendix 1?

4.

Considering the claimant’s RFC, can he or she perform his or her past
relevant work?

5.

Considering the claimant’s age, education, past work experience, and
RFC, can he or she perform other work available in the national economy?

20 C.F.R. § 404.1520(a)(4).
III. ANALYSIS
As a preliminary note, Plaintiff’s pertinent medical records have been adequately
summarized in the parties’ briefs and the administrative decision, see doc. 6, at PAGEID 40-42;
doc. 12, at Tr. 14-15, and the Court will not repeat them here. Where applicable, the Court will
identify the medical evidence relevant to its decision.
In his Statement of Errors, Plaintiff argues that the decision of the ALJ denying
benefits should be reversed on eight different grounds:
1.
2.

The hypothetical posed by the ALJ to the vocational expert
materially differed from the ALJ’s RFC finding;

3.

2

The ALJ considered the wrong period of disability;

The ALJ failed to properly consider the symptom of pain;

The remaining citations will identify the pertinent DIB Regulations with full knowledge
of the corresponding SSI Regulations.
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4.

The ALJ erred in not granting or even responding to
Plaintiff’s request for a state agency physical examination;

5.

The ALJ did not make a sufficient credibility finding;

6.

The ALJ fails to include any limitations related to
Plaintiff’s hand arthritis;

7.

The ALJ mischaracterizes Plaintiff’s daily activities; and

8.

The ALJ’s decision is not supported by substantial
evidence and the Commissioner’s position is not
substantially justified.

Doc. 6 at PageID 43-51.
For the reasons that follow, the Court finds all of Plaintiff’s allegations of error to be
unmeritorious, and further finds the ALJ’s decision to be supported by substantial evidence.
a.

Alleged Onset Date of Disability (First Assignment of Error)

Plaintiff argues that the ALJ committed reversible error by mistakenly identifying in his
decision the original onset date of March 31, 2004, and not the amended date of February 20,
2008. See doc. 6 at PageID 44. The Commissioner’s memorandum does not directly address
this contention. See doc. 53.
Although Plaintiff is correct that the ALJ’s decision improperly identifies the alleged
onset date as March 31, 2004 and not the date as amended at the hearing, see Tr. 11, 13, 26, he
nevertheless fails to identify how the ALJ’s misidentification constitutes reversible error, and
cites no cases or regulations in support of his argument that this case should be remanded on this
basis.
Plaintiff’s allegation -- that the ALJ’s would have been different had the amended date
been identified -- is unsupported by the record. The Court’s review of the record reveals that
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most, if not all, of the medical records contained therein are dated between 2008 and 2010. Tr.
222-391. The ALJ clearly considered Plaintiff’s condition from the amended alleged onset date
of February 20, 2008 onward, and his analysis does not identify the lack of medical records
between March 2004 and February 2008 as a basis for his non-disability finding. Tr. 14-15.
The substantial evidence of record does not show Plaintiff suffered from a disabling
condition for a twelve month period prior to February 2008, and any error related to the ALJ’s
use of the original alleged onset date is harmless, given that the ALJ fully considered Plaintiff’s
condition from the amended onset date of February 20, 2008 through the date of his decision.
Accordingly, the Court finds no merit in this assignment of error.
b.

Plaintiff’s Credibility, Pain, and Daily Activities (Third, Fifth, and Seventh
Assignments of Error)

Substantial evidence supports the ALJ’s finding regarding Plaintiff’s credibility, as well
as the ALJ’s consideration of Plaintiff’s daily activities and allegations of pain.
The Sixth Circuit has long recognized that “credibility determinations with respect to
subjective complaints of pain rest with the ALJ.” Allen v. Comm’r of Soc. Sec., 561 F.3d 646,
652 (6th Cir. 2009). Furthermore, “[t]he ALJ’s assessment of credibility is entitled to great
weight and deference, since he had the opportunity to observe the witness’s demeanor.”
Infantado v. Astrue, 263 Fed. Appx. 469, 475 (6th Cir. 2008) (citing Walters v. Comm’r of Soc.
Sec., 127 F.3d 525, 531 (6th Cir. 1997)). Despite this deference, “an ALJ’s assessment of a
claimant’s credibility must be supported by substantial evidence,” Walters, 127 F.3d at 531, and
the ALJ’s decision on credibility must be “based on a consideration of the entire record.” Rogers
v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007).

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The Sixth Circuit has developed a two-step process for evaluating a claimant’s
complaints of pain:
First, we examine whether there is objective medical evidence of an underlying
medical condition. If there is, we then examine: (1) whether objective medical
evidence confirms the severity of the alleged pain arising from the condition; or
(2) whether the objectively established medical condition is of such a severity that
it can reasonably be expected to produce the alleged disabling pain.
Walters, 127 F.3d at 531 (quoting Felisky v. Bowen, 35 F.3d 1027, 1038-39 (6th Cir. 1994)). In
making such determinations, “[d]iscounting credibility to a certain degree is appropriate where
an ALJ finds contradictions among the medical reports, claimant’s testimony, and other
evidence.” Id. Furthermore, in assessing credibility, the ALJ may consider a variety of factors
including “the location, duration, frequency, and intensity of the symptoms; ... [and] the type,
dosage, effectiveness, and side effects of any medication taken to alleviate the symptoms[.]”
Rogers, 486 F.3d at 247.
The record indicates that the ALJ properly employed the correct two-step standard in
evaluating Plaintiff’s complaints of pain.

First, the ALJ determined that “the claimant’s

medically determinable impairments could reasonably be expected to produce the alleged
symptoms.” Tr. 15. Second, the ALJ found that Plaintiff’s statements about the pain’s intensity
were not credible “to the extent they are inconsistent with the [RFC] assessment.” Id.
The ALJ’s credibility determination is based upon substantial evidence of record.
Specifically, the ALJ cited a variety of evidence to support his conclusion -- including the results
of an MRI of the lumbar spine in 2008, as well as Plaintiff’s decision to decline back surgery and
opt for a series of spinal injections and pain management with medication. Tr. 14-15. In
addition, the ALJ noted multiple visits in 2010 with Robert McCarthy, M.D. where Plaintiff had
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no decreased range of motion, no joint stiffness, and no muscle weakness. See Tr. 15, 374-76,
378-80. Similarly, in those examinations, Dr. McCarthy observed that Plaintiff’s posture and
gait were normal, all four extremities were of normal strength and tone, and his only abnormality
was some moderate tenderness in the lumbar spine. Id. Moreover, neither Dr. McCarthy, nor
any other physician, opined that Plaintiff’s impairments are completely debilitating and/or
disabling.
Plaintiff’s argument that the ALJ “mischaracterizes” his testimony regarding daily
activities is unsupported by the record and hearing transcript.

Although Plaintiff was

hospitalized in April 2008 for acute exacerbation of COPD, see tr. 15, 225-53, and treatment
records indicate that Plaintiff occasionally presented with some wheezing and rhonchi, the
evidence of record shows that Plaintiff is able to keep his respiratory condition under control
with Albuterol and Combivent. Tr. 366-71, 374-89. Regarding Plaintiff’s lower back pain, the
ALJ properly considered Plaintiff’s own testimony, in which he admitted to taking care of his 3year old son; doing yard work and housework; cooking; and installing new kitchen cabinets and
flooring. See Walters, 127 F.3d at 531. The ALJ’s finding that these activities are inconsistent
with the level of limitation Plaintiff alleges is well-supported by substantial evidence. Tr. 15.
While Plaintiff argues that portions of the record indicate that he is still experiencing
pain, evidence supporting an opposite conclusion is insufficient to reverse the ALJ’s decision.
There is a “zone of choice” within which the Commissioner’s decision to deny benefits is
supported by substantial evidence and, had the Commissioner granted benefits, that decision also
would have been supported by substantial evidence. Mullen v. Sec’y of Health & Human Servs.,
800 F.2d 535, 548 (6th Cir. 1986). Therefore, the ALJ’s credibility determination, analysis of
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Plaintiff’s subjective complaints of pain, and consideration of Plaintiff’s daily activities are all
supported by substantial evidence. Accordingly, the Court finds that the ALJ committed no
reversible error on any of these grounds, and Plaintiff’s assignments of error claiming otherwise
are meritless.
c.

Plaintiff’s Request for
Assignment of Error)

a

Consultative

Examination

(Fourth

Plaintiff argues that the ALJ committed reversible error by failing to order a state agency
physical examination. Doc. 6 at PageID 48. This argument implicates both the “substantial
evidence” and “correct legal criteria” prongs of Bowen. 478 F.3d at 745-46.
The regulations provide that, in making a medical equivalence determination, the Social
Security Administration will “consider the opinion given by one or more medical or
psychological consultants designated by the Commissioner.”

20 C.F.R. §404.1526(c).

Nevertheless, “[t]he burden [is] on the claimant to provide a record sufficiently complete for the
Secretary to make a determination.” Robinson v. Sullivan, No. 89-3110, 1989 U.S. App. LEXIS
15671, at *2 (6th Cir. Oct. 12, 1989) (citing 20 C.F.R. §§ 416.912, 416.913(d)).

“[T]he

regulations do not require an ALJ to refer a claimant to a consultative specialist, but simply grant
him the authority to do so if the existing medical sources do not contain sufficient evidence to
make a determination.” Id. (citing 20 C.F.R. § 416.917(a)). Accordingly, a “‘full inquiry’ does
not require a consultative examination unless the record establishes that such an examination is
necessary to enable the [ALJ] to make the disability decision.” Landsaw v. Sec’y of Health &
Human Servs., 803 F.2d 211, 214 (6th Cir. 1986) (emphasis in original).
Here, the ALJ had the benefit of being able to rely on the assessments of two state agency

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reviewing physicians, who reviewed Plaintiff’s record in October 2008 and February 2009, and
found that Plaintiff could perform a reduced range of light work. Tr. 313-320, 336. Moreover,
the reviewing physicians’ opinions were well-supported. See 20 C.F.R. §§ 404.1527(d)(3),
416.927(d)(3). As the ALJ explained, no doctor ever opined that Plaintiff was more limited than
his RFC finding. Tr. 15. Even though Plaintiff contends that a consultative examination was
necessary to properly determine his functioning, he failed to place relevant evidence supporting
his claim of disabling impairments before the ALJ, and as the claimant, it is his responsibility to
do so. Landsaw, 803 F.2d at 214. Moreover, because the ALJ’s decision not to order a
consultative examination is supported by substantial evidence, Plaintiff’s allegation of error is
without merit.
d.

The ALJ’s Hypotheticals to the VE (Second Assignment of Error)

Plaintiff argues that the ALJ “neglects to make any mention of an inability to climb
ramps or stairs” in posing hypothetical questions to the VE. Doc. 6 at PageID 45. Plaintiff
further alleges that “[t]he jobs which the ALJ finds that [I] can perform are…not supported by
the [VE’s] testimony because the [VE] did not consider an inability to climb ramps or stairs in
identifying those jobs.” Id.
The Sixth Circuit has long held that “[a] statement of [a] claimant’s abilities and
limitations need not include an enumeration of every diagnosis or impairment.” Howard v.
Comm’r of Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002). “A hypothetical question is adequate if
it accurately portrays a claimant’s abilities and limitations.” Chandler v. Comm’r of Soc. Sec.,
124 F.App’x 355, 359 (6th Cir. 2005).
In this case, the ALJ determined that Plaintiff is not capable of performing either his prior
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work or a full range of light work, so he appropriately called a VE to testify whether Plaintiff,
given his limitations, is capable of performing other jobs in the national economy. As noted
above, the VE identified certain jobs that, in his expert opinion, a claimant with Plaintiff’s
vocational profile and RFC could perform. In responding to a number of hypotheticals posed by
the ALJ, the VE testified that Plaintiff could perform a significant number of jobs in the region
such as small parts assembler, housekeeper and sales attendant. Tr. 41-43. The VE also testified
that these jobs were consistent with the DOT. Tr. 44.
At Step Five of the sequential evaluation process, an ALJ is permitted to consider
“‘reliable job information’ available from various publications” as evidence of a claimant’s
ability to do other work “that exists in the national economy.” S.S.R. 00-4p, 2000 WL 1898704,
at *2 (S.S.A. Dec. 4, 2000) (citing 20 C.F.R. §§ 404.1566(d), 416.966(d)). Such publications
include the DOT, which provides “information about jobs (classified by their exertional and skill
requirements) that exist in the national economy.” 20 C.F.R. § 404.1569.
As the Commissioner notes, according to the DOT, none of the jobs the VE identified
require any climbing of stairs or ramps at all. See “Small Parts Assembler,” DOT No. 739.687030 (DICOT 739.687-030, 1991 WL 680180); “Cleaner, Housekeeping,” DOT No. 323.687-014
(DICOT 323.687-014, 1991 WL 672783); “Sales Attendant,” DOT No. 299.677-010 (DICOT
299.677-010, 1991 WL 672643). The DOT job description for each of these three positions
states that climbing is “not present” and that the “activity or condition does not exist” in the each
of the three positions. Id. As such, Plaintiff has not, and cannot, show any harm by the ALJ’s
hypothetical questions because he can still perform every job identified by the VE. Accordingly,
the Court finds that the ALJ committed no error in the hypothetical questions he posed, and that
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remanding this case as Plaintiff requests would be futile.
e.

Plaintiff’s Alleged Hand Problems (Sixth Assignment of Error)

At Step Two of the sequential evaluation process, the ALJ identified the following severe
impairments: degenerative disc disease; arthralgia; and COPD. Tr. 13. Plaintiff argues that the
ALJ committed reversible error by not identifying any hand problems in his recounting of
Plaintiff’s severe impairments. Doc. 6 at PageID 49. Plaintiff further contends that the ALJ
erred by not including any manipulative limitations in his RFC. Id.
Although Plaintiff saw Dr. McCarthy for hand arthritis in February 2008, the ALJ
correctly noted that “subsequent medical records do not discuss any treatment sought by the
claimant” for his hand arthritis. Tr. 14. Cf. Strong v. Soc. Sec. Admin., 88 F. App’x 841, 846 (6th
Cir. 2004) (“In the ordinary course, when a claimant alleges pain so severe as to be disabling,
there is a reasonable expectation that the claimant will seek examination or treatment. A failure
to do so may cast doubt on a claimant’s assertions of disabling pain”). Additionally, reviewing
physician Gary Hinzman, M.D. noted that despite some indication of arthritis in Plaintiff’s
hands, Plaintiff had a full range of motion in his arms and legs, and did not require manipulation,
reaching, or handling restrictions in his RFC. Tr. 314-17.
Nevertheless, the ALJ incorporated into his hypotheticals to the VE limitations regarding
“constant handling and fingering.” Tr. 44. The VE testified that even if Plaintiff were “limited
to frequent but not constant handling and fingering,” he would still be able to perform all of the
jobs identified by the VE. Id. As such, Plaintiff’s assignment of error lacks merit, and the ALJ’s
decision is supported by substantial evidence.

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f.

Substantial Evidence (Eighth Assignment of Error)

Plaintiff’s Statement of Errors concludes with a summary argument that, for the reasons
detailed in the first seven assignments of error, the ALJ’s decision was not supported by
substantial evidence.
It is not the Court’s role to sift through the facts and make a de novo determination of
whether a claimant is disabled. The ALJ, not the Court, is the finder of fact. Siterlet v. Sec’y of
Health & Human Servs., 823 F.2d 918, 920 (6th Cir. 1987). So long as the Commissioner’s
decision is supported by substantial evidence, it must be affirmed.
Richardson, 402 U.S. at 401.

42 U.S.C. §405(g);

Where there is substantial evidence supporting the ALJ’s

resolution of the disputed facts, the Court must affirm the ALJ even if the Court would likely
have resolved the disputed facts in Plaintiff’s favor had it been the trier of fact. Nunn v. Bowen,
828 F.2d 1140, 1144 (6th Cir. 1987).
Were this Court to have been the initial finder of fact, hearing this case on a de novo
basis, the result reached herein might well have been different. However, the task of this Court
is not to determine whether the record contains substantial evidence of disability. Rather, the
Court’s task is limited to determining whether the Commissioner’s decision of non-disability is
supported by substantial evidence. In this matter, the record is so supported. Mullen, 800 F.2d at
548.
IV. RECOMMENDATION
For the foregoing reasons, the Court finds all of Plaintiff’s assignments of error to be
unavailing. The ALJ’s decision is supported by substantial evidence and should be affirmed.

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IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’s final non-disability finding be found supported by
substantial evidence, and AFFIRMED; and

2.

This case be CLOSED.

November 13, 2012

s/Michael J. Newman
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after being
served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is
extended to SEVENTEEN days because this Report is being served by one of the methods of
service listed in Fed. R. Civ. P. 5(b)(2)(B)(C), or (D) and may be extended further by the Court
on timely motion for an extension. Such objections shall specify the portions of the Report
objected to and shall be accompanied by a memorandum of law in support of the objections. If
the Report and Recommendations are based in whole or in part upon matters occurring of record
at an oral hearing, the objecting party shall promptly arrange for the transcription of the record,
or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient,
unless the assigned District Judge otherwise directs. A party may respond to another party’s
objections within FOURTEEN days after being served with a copy thereof. Failure to make
objections in accordance with this procedure may forfeit rights on appeal. See United States v.
Walters, 638 F. 2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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