UNITED STATES DISTRICT COURT

EASTERN DISTICT OF MICHIGAN

SOUTHERN DIVISION

JESS AARON RITZ,

Plaintiff, Civil Action No.: 14-13038

 Honorable Thomas L. Ludington

v. Magistrate Judge Elizabeth A. Stafford

 

CAROLYN W. COLVIN, 

Acting Commissioner of 

Social Security,

 

Defendant. 

__________________________________/

REPORT AND RECOMMENDATION ON 

CROSS-MOTIONS FOR SUMMARY JUDGMENT [R. 18, 19]

Plaintiff Jess Aaron Ritz appeals a final decision of Defendant 

Commissioner of Social Security (“Commissioner”) denying his applications

for Disability Insurance Benefits (“DIB”) and Supplemental Security Income 

(“SSI”) under the Social Security Act (the “Act”). Both parties have filed

summary judgment motions, referred to this Court for a Report and 

Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). The Court finds 

that the Administrative Law Judge’s (“ALJ”) decision is supported by 

substantial evidence, and therefore RECOMMENDS that:

• the Commissioner’s motion [R. 19] be GRANTED; 

• Ritz’s motion [R. 18] be DENIED; and,

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• the Commissioner’s decision be AFFIRMED, pursuant to sentence 

four of 42 U.S.C. § 405(g).

I. BACKGROUND

A. Claimant’s Background and Claimed Disabilities

At the time of the hearing, Ritz was a 36-year-old father of two, who 

had completed eleventh grade and had worked previously as a caregiver 

and construction worker. He claimed disability as a result of avascular 

necrosis1 of the hip, gouty arthritis, high blood pressure and attention deficit 

disorder. In July 2012, after his application but prior to his administrative 

hearing, Ritz fractured his ankle and underwent an external fixation to 

repair it. 

B. Procedural History

Ritz filed applications for DIB and SSI, alleging disability as of 

October 25, 2011. [R. 16-5, Tr. 126-41]. The claims were denied initially, 

and Ritz filed a timely request for an administrative hearing, held on

February 12, 2013, at which both he and a vocational expert (“VE”) 

testified. [R. 16-2, Tr. 33-53; R. 16-4, Tr. 86-92]. In a March 1, 2013

written decision, the ALJ found Ritz not disabled. [R. 16-2, Tr. 16-32]. The

 1 “Avascular necrosis is the death of bone tissue due to a lack of blood 

supply.” Mayo Clinic (January 8, 2016), 

http://www.mayoclinic.org/diseases-conditions/avascularnecrosis/basics/definition/con-20025517

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Appeals Council denied review, making the ALJ’s decision the final 

decision of the Commissioner. [Id., Tr. 1-4]. Ritz timely filed for judicial 

review. [R. 1]. 

C. The ALJ’s Application of the Disability Framework

DIB and SSI are available for those who have a “disability.” See 

Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). A “disability” is the 

“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).

The Commissioner determines whether an applicant is disabled by 

analyzing five sequential steps. First, if the applicant is “doing substantial 

gainful activity,” he or she will be found not disabled. 20 C.F.R. § 

404.1520(a)(4); 20 C.F.R. § 416.920(a)(4).

2

 Second, if the claimant has 

not had a severe impairment or a combination of such impairments3 for a 

continuous period of at least 12 months, no disability will be found. Id. 

Third, if the claimant’s severe impairments meet or equal the criteria of an 

 2 Sections 1520(a)(4) and 920(a)(4), which pertain to DIB and SSI 

respectively, list the same five-step analysis.

3 A severe impairment is one that “significantly limits [the claimant’s] 

physical or mental ability to do basic work activities.” §§ 1520(c); 920(c).

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impairment set forth in the Commissioner’s Listing of Impairments, the 

claimant will be found disabled. Id. If the fourth step is reached, the 

Commissioner considers its assessment of the claimant’s residual 

functional capacity (“RFC”), and will find the claimant not disabled if he or 

she can still do past relevant work. Id. At the final step, the Commissioner 

reviews the claimant’s RFC, age, education and work experiences, and 

determines whether the claimant could adjust to other work. Id. The 

claimant bears the burden of proof throughout the first four steps, but the 

burden shifts to the Commissioner if the fifth step is reached. Preslar v. 

Sec’y of Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994). 

Applying this framework, the ALJ concluded that Ritz was not 

disabled. At step one, he found that Ritz had not engaged in substantial 

gainful activity since his alleged onset date. [R. 16-2, Tr. 21]. At step two, 

the ALJ identified severe impairments of “status post left ankle fracture with 

open reduction internal fixation, avascular necrosis of the right hip and left 

hip, attention deficit disorder/attention deficit hyperactivity disorder 

(ADD/ADHD), and gout.” [Id.]. At step three, the ALJ found that none of 

Ritz’s severe impairments, either alone or in combination, met or medically 

equaled a listed impairment, specifically comparing them to the relevant 

listings. [Id., Tr. 22-23]. 

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Next, the ALJ assessed Ritz’s residual functional capacity (“RFC”), 

finding him capable of a limited range of sedentary work that involved only 

occasional climbing of ramps and stairs, balancing, stooping, crouching, 

crawling, kneeling and operating foot controls and no climbing of ladders, 

ropes or scaffolds. [Id., Tr. 23]. The RFC further indicated that Ritz must 

be able to use a hand-held assistive device for prolonged walking or 

walking over uneven terrain, while the contralateral upper extremity could 

be used to lift and carry up to exertional limits. [Id.]. Ritz was limited to 

avoiding concentrated exposure to moving machinery and all exposure to 

unprotected heights or hazards. [Id.]. Finally, the ALJ limited Ritz to 

“simple, routine, and repetitive tasks, performed in a work environment free 

of fast-paced production requirements; involving only simple[ ] work-related 

decisions[ ] with few, if any, workplace changes.” [Id.]. 

At step four, the ALJ determined that Ritz’s RFC prevented him from 

returning to his past relevant work as a caregiver. [Id., Tr. 26]. However, 

with the assistance of VE testimony, the ALJ concluded at step five that 

there were a significant number of other jobs that a hypothetical claimant 

matching Ritz’s profile could still perform, including visual inspector (1,500 

jobs in the region), assembly (3,000 jobs) and packaging (2,100 jobs). [Id., 

Tr. 27]. Thus, Ritz was found to be not disabled. [Id., Tr. 28]. 

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II. STANDARD OF REVIEW

Pursuant to § 405(g), this Court’s review is limited to determining 

whether the Commissioner’s decision is supported by substantial evidence 

and was made in conformity with proper legal standards. Gentry v. Comm’r 

of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014). 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 v. Comm’r of Soc. Sec., 486 F.3d 234, 241 

(6th Cir. 2007) (internal quotation marks and citation omitted). Only the 

evidence in the record below may be considered when determining 

whether the ALJ’s decision is supported by substantial evidence. Bass v. 

McMahon, 499 F.3d 506, 513 (6th Cir. 2007). “If the [Commissioner’s]

decision is supported by substantial evidence, it must be affirmed even if 

the reviewing court would decide the matter differently, and even if 

substantial evidence also supports the opposite conclusion.” Cutlip v. 

Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (internal 

citations omitted). 

With these standards in mind, this Court finds that the ALJ’s 

determination that Ritz is not disabled is supported by substantial evidence.

III. ANALYSIS

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Ritz argues that the ALJ erred by finding that Ritz’s avascular hip 

necrosis did not meet or medically equal a listing; by making an 

unsupportable credibility determination; and by relying on erroneous VE 

testimony. The Court finds no merit in Ritz’s arguments.

A. Listing 1.02

The Court disagrees with Ritz’s argument that the ALJ erred by 

finding that his avascular hip necrosis did not meet the criteria of Listing 

1.02 (major dysfunction of a joint). That Listing requires “gross anatomical 

deformity” and “chronic joint pain and stiffness with signs of limitation of 

motion” or “abnormal motion” and “findings on appropriate medically 

acceptable imaging of joint space narrowing, bony destruction or 

ankylosis”, involving “one major peripheral weight-bearing joint . . . resulting 

in inability to ambulate effectively.” 20 C.F.R. Pt. 4, subpt. P, Appx. 1, 

§1.02. The inability to ambulate is defined generally as “an extreme 

limitation of the ability to walk.” Id. § 1.00B2b(1). A claimant will be found 

unable to ambulate effectively if, for example, he cannot walk “without the 

use of a walker, two crutches[,] or two canes,” cannot “walk a block at a 

reasonable pace on rough or uneven surfaces,” or “carry out routine 

ambulatory activities, such as shopping and banking.” Id. § 1.00B2b(2). 

Here, the ALJ compared Ritz’s hip necrosis to Listing 1.02, but found 

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that he did not meet or medically equal the listing. [R. 16-2, Tr. 22]. 

Although the ALJ did not specifically mention the inability to ambulate 

effectively with regard to Listing 1.02, he did when comparing Ritz’s other 

impairments to Listings 1.03 and 1.06, which similarly require a finding of 

ineffective ambulation. [Id.]. Further, although Ritz points to evidence 

showing the general severity of his necrosis, [R. 18, PgID 422-23], he 

presents no evidence demonstrating ineffective ambulation, and it is his 

burden to demonstrate that his impairment meets or medically equals a 

listing. Forrest v. Comm’r of Soc. Sec., 591 Fed. Appx. 359, 366 (6th Cir. 

2014). 

Moreover, the evidence of record supports the ALJ’s finding. Ritz 

was diagnosed with right hip avascular necrosis in June 2011, given the 

option to decide “where and when he would have the surgery,” and 

prescribed Percocet for pain. [R. 16-7, Tr. 212-16, 219, 225-30]. He 

presented with a right-side limp, but there is no indication that an assistive 

device was prescribed. [Id., R. 215-16]. At a follow-up visit he reported 

good pain control using less than the prescribed Percocet dosage. [Id., Tr. 

249]. After an exacerbation of pain in November 2011, his Percocet 

dosage was increased – an adjustment that he subsequently reported was 

successful for controlling his pain. [Id., Tr. 257-58, Tr. 265-66, 277, 279]. 

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There is no evidence of a treating provider ever prescribing a hand-held 

assistive device for Ritz’s hip pain. Ritz did use crutches following his 

ankle surgery in August 2012, [Id., Tr. 341-42], but there is no evidence 

that he was dependent upon them after his recovery. 

Consultant reviewer Natalie Gray, M.D., opined that Ritz would 

require an assistive device for prolonged ambulation or uneven terrain, but 

found him capable of ambulation and of carrying small objects with this 

other hand. [R. 16-3, Tr. 59-61]. Notably, she considered Listing 1.02 

when determining Ritz’s RFC. [Id., Tr. 59-60]. Ritz has offered no 

evidence demonstrating that his impairment meets all the requirements of 

Listing 1.02, and the Court finds no error in the ALJ’s step three finding. 

B. Credibility Determination

Credibility determinations of witnesses are within the province of the 

ALJ, and will not be overturned “absent compelling reason.” Smith v. 

Halter, 307 F.3d 377, 379 (6th Cir.2001). At the same time, “such 

determinations must find support in the record.” Rogers, 486 F.3d at 241. 

Here, Ritz has not proffered a compelling reason to overturn the ALJ’s 

credibility determination, and that determination finds support in the record.

Ritz argues that the ALJ minimized his credible allegations of pain, 

which he alleges are supported by the medical records and the third-party 

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report from his neighbor. However, as discussed above and by the ALJ, 

Ritz’s treatment notes described his pain as being well-controlled with 

Percocet. [R. 16-2, Tr. 26; R. 16-7, Tr. 249, 265-66, 277, 279]. Further, 

the ALJ also relied on the only opinion of record, that of Dr. Gray, to 

determine that Ritz’s subjective allegations were less than fully credible. 

Kirkland, 528 Fed. Appx. at 427 (ALJ did not err in relying in part on agency 

physicians to find claimant less than fully credible). 

In the same vein, the ALJ properly relied upon the opinions of a 

treating physician and a State agency psychologist to determine that Ritz’s 

ADD was well controlled by medication. [R. 16-2, Tr. 25; R. 16-7, Tr. 249, 

257, 277; R. 16-3, Tr. 58-59].

It is true that the ALJ did not discuss the third-party report from Ritz’s 

neighbor,

4 but any error as a result is harmless. According to 20 C.F.R. § 

404.1513(d)(4), the ALJ may consider non-medical sources including family 

members and friends, but is not required to do so. See Holbrook v. Astrue, 

No. CIV.A. 07-78-JBC, 2008 WL 4000423, at *3 (E.D. Ky. Aug. 25, 2008)

(“The regulation clearly states that the ALJ may take non-medical sources 

into consideration, not that he is required to do so.”). Moreover, an ALJ’s 

failure to consider lay source evidence cannot be more than harmless error 

 4 The neighbor’s third party report is found at R. 16-6, Tr. 182-189].

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unless it would affect the disability decision and is fully supported by the 

reports of treating physicians. Maloney v. Comm'r of Soc. Sec., 480 Fed. 

Appx. 804, 810 (6th Cir. 2012); Simons v. Barnhart, 114 F. App'x 727, 733 

(6th Cir. 2004). Here, the treatment records showed Ritz receiving

conservative treatment for his condition and that he reported good pain 

control. [R. 16-6, Tr. 182-97; R. 16-7, Tr. 249, 265-66, 277, 279]. 

Similarly, although Ritz is correct that the ability to perform minimal 

daily activities does not mean that he is capable of working on a full-time 

basis, see Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 377-78 (6th Cir. 

2013), any error by the ALJ in relying in part on his activities of daily living 

to find him less than fully credible would be harmless given the evidence 

that his pain was well-controlled with medication and that he was capable 

of ambulation.

The Court finds no error in the ALJ’s credibility analysis and no 

compelling reason to overturn it. 

C. VE testimony 

Finally, Ritz argues that the ALJ erred in relying on VE testimony 

identifying jobs that either do not exist or that Ritz could not actually 

perform given his impairments and his lack of a high school diploma. At 

the hearing, the VE testified to jobs that a person with Ritz’s RFC and 

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education could perform. [R. 16-2, Tr. 37, 47-50]. “An ALJ may rely on a 

vocational expert’s response to a hypothetical question if that question was 

based on limitations that were properly credited by the ALJ and supported

by substantial evidence in the record.” Keeton v. Comm’r of Soc. Sec., 583 

Fed. Appx. 515, 533 (6th Cir. 2014). Here, the ALJ’s RFC assessment was 

supported by substantial evidence, so he was entitled to rely upon the VE’s 

testimony.

IV. CONCLUSION

The ALJ’s decision was procedurally sound and supported by 

substantial evidence of record. As a result, the Court RECOMMENDS that 

Ritz’s Motion for Summary Judgment [R. 18] be DENIED, the 

Commissioner’s Motion [R. 19] be GRANTED and this case be 

AFFIRMED.

s/Elizabeth A. Stafford

ELIZABETH A. STAFFORD

United States Magistrate Judge

Dated: January 11, 2016

NOTICE TO THE PARTIES REGARDING OBJECTIONS

Either party to this action may object to and seek review of this 

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Report and Recommendation, but must act within fourteen 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 (6th Cir. 1991); United States v. Walters, 

638 F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but 

fail to raise others with specificity will not preserve all objections that 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). A copy of any objection 

must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2).

Each objection must be labeled as “Objection #1,” “Objection #2,” 

etc., and must specify precisely the provision of this Report and 

Recommendation to which it pertains. Not later than fourteen days after 

service of objections, the non-objecting party must file a response to 

the objections, specifically addressing each issue raised in the objections in 

the same order and labeled as “Response to Objection #1,” “Response to 

Objection #2,” etc. The response must be concise and proportionate in 

length and complexity to the objections, but there is otherwise no page 

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limitation. If the Court determines that any objections are without merit, it 

may rule without awaiting the response.

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s ECF 

System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on January 11, 2016.

s/Marlena Williams

MARLENA WILLIAMS

Case Manager

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