1

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

CAROLYN ANN BELL, 

 Plaintiff, 

v. 

COMMISSIONER OF 

SOCIAL SECURITY, 

 Defendant. 

 

Case No. 1:14-cv-13390 

Judge Thomas L. Ludington 

Magistrate Judge Anthony P. Patti 

___________________________________/ 

RECOMMENDATION TO DENY PLAINTIFF’S MOTION FOR 

SUMMARY JUDGMENT (DE 14) AND TO GRANT DEFENDANT’S 

MOTION FOR SUMMARY JUDGMENT (DE 17) 

I. RECOMMENDATION: For the reasons that follow, it is 

RECOMMENDED that the Court DENY Plaintiff’s motion for summary 

judgment, GRANT Defendant’s motion for summary judgment, and AFFIRM the 

Commissioner’s decision. 

II. REPORT 

 Plaintiff, Carolyn Ann Bell, brings this action under 42 U.S.C. §§ 405(g) 

and 1383(c)(3) for review of a final decision of the Commissioner of Social 

Security (“Commissioner”) denying her application for social security disability 

insurance benefits. This matter is before the United States Magistrate Judge for a 

Report and Recommendation on Plaintiff’s motion for summary judgment (DE 

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14), the Commissioner’s cross motion for summary judgment (DE 17), and the 

administrative record (DE 13). 

A. Background

 Plaintiff filed her application for benefits on February 21, 2012, alleging that 

she has been disabled since February 21, 2012, at age 51. R 147-155.1

 Plaintiff 

alleges disability as a result of AIDS, Hepatitis C and depression. R at 165-172. 

Plaintiff’s application was denied initially on May 25, 2012 (R at 77-85, 86, 91-94) 

and upon reconsideration on September 11, 2012. R at 87. 

Plaintiff sought a de novo hearing before an Administrative Law Judge 

(“ALJ”). R at 95-97, 98-104, 108-114. ALJ Oksana Xenos held a hearing on May 

3, 2013, at which Plaintiff was represented by counsel and Vocational Expert (VE) 

Donald Harrison, Ph.D., testified. R at 37-53. On May 23, 2013, ALJ Xenos 

determined that Plaintiff was not disabled within the meaning of the Social 

Security Act. R at 19-36. 

 

1 Plaintiff applied for SSI benefits on June 3, 2010. R at 74. On September 19, 

2011, ALJ Richard L. Sasena issued an unfavorable decision. R at 59-76. “When 

the Commissioner has made a final decision concerning a claimant's entitlement to 

benefits, the Commissioner is bound by this determination absent changed 

circumstances.” Drummond v. Commissioner of Social Sec., 126 F.3d 837, 

842 (6th Cir. 1997). 

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On June 11, 2013, Plaintiff requested review of the hearing decision. R at 

16-18. On July 8, 2014, the Appeals Council denied Plaintiff’s request for review. 

R at 1-8, 9-15. Thus, ALJ Xenos’s decision became the Commissioner’s final 

decision. 

Plaintiff then timely commenced the instant action on September 2, 2014. 

DE 1. 

B. Plaintiff’s Medical History 

 In this case, Plaintiff alleges that she has been disabled since February 21, 

2012. See R at 147-155. Plaintiff’s medical records span the period from 

December 18, 2010 to January 18, 2013. R at 200-356 (Exhibits 1F-9F). Among 

those the ALJ cited are: 

 April 15, 2011 notes of Patricia Brown, M.D. (R at 200-201) 

 August 5, 2011 notes of Dr. Brown (R at 202-203) 

 August 18, 2011 psychiatric evaluation by Drita Gjelaj, L.L.M.S.W. (R at 

204-209) 

 October 25, 2011 report of Camille Jeanette Blake, D.O. (R at 263-266) 

 March 13, 2012 psychiatric evaluation of psychiatrist Timothy Chapman, 

M.D. (R at 277-278) 

 March 13, 2012 Individualized Plan of Service (IPOS) (R at 279-288) 

 April 17, 2012 Case Management Progress Notes of Lillian Hathorne (R at 

304) 

 April 17, 2012 Individual Progress Notes (R at 305) 

 May 7, 2012 report of Cynthia Shelby-Lane, M.D. (R at 253-262) 

 May 7, 2012 report of licensed psychologist Nick Boneff, Ph.D. (R at 352-

356) 

 June 5, 2012 Medical Progress Notes of Dr. Chapman (R at 307) 

 June 26, 2012 Individual Progress Notes of Zeinab Zahreidin, L.L.M.S.W. 

(R at 298-299) 

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 September 14, 2012 notes signed by Dr. Brown (R at 330-332) 

 January 18, 2013 notes of Dr. Brown (R at 328-329) 

R at 27-31. These records will be discussed in detail as required below. 

 C. Hearing Testimony (May 3, 2013) 

 1. Plaintiff’s Testimony 

 Plaintiff Carolyn Ann Bell testified at the May 3, 2013 hearing. R at 40-49. 

Plaintiff testified that she has a GED. R at 41. Plaintiff has never been married 

and does not have any children. R at 45. She does not generally get along well 

with people. Plaintiff stated she is “usually a loner[,]” and further stated that she 

prefers being alone. R at 46. 

At the time of the hearing, she was just completing a 90 day stay at a shelter. 

R at 41-42. She has no source of income, although in past years she apparently 

received assistance from the Department of Human Services (DHS). R at 44. 

The last time Plaintiff worked was from November 2011 through April 

2012, when she took care of her sister who had experienced a stroke. R at 42-43. 

Plaintiff stopped, because she could not handle the job. R at 43. She is not 

currently working. R at 42. Plaintiff testified that she could no longer work, 

because she tires out really quickly. She has nosebleeds, sores and diarrhea. She 

is weak, faints when she gets too hot and tends to pass out wherever she is. R at 

44. When asked about the side effects of her medication, Plaintiff noted diarrhea, 

nosebleeds, sores and fainting when warm. R at 48. 

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Plaintiff usually spends her time watching television. She does not drive; 

she takes buses occasionally. She goes to church. R at 44. She goes grocery 

shopping once per month. She does her own laundry. She can sit in one spot for 

about an hour, and she can stand for approximately 20-30 minutes. She can walk 

for two blocks before she gets tired. She can climb approximately one flight of 

stairs, and can lift 10 to 20 pounds. R at 45. Plaintiff’s fingers and hands hurt; she 

described the problem with her grip and noted difficulty with putting on her shoes. 

R at 45-46. 

Plaintiff further testified that she is not on a special diet. She tries to eat at 

least three meals per day. She fixes her own meals. R at 46. Plaintiff smokes 

about five cigarettes per day. She does not drink a lot, and she does not use 

marijuana. R at 47. She apparently gets about four hours of sleep per night. R at 

47. She naps during the day, every day, for about 2-3 hours. R at 47-48. Her most 

comfortable position throughout the day is lying down. R at 48. 

Finally, with respect to her memory, Plaintiff testified that she sometimes 

tends to forget and usually tries to keep a reminder. According to Plaintiff, she is 

very depressed and often has crying spells. R at 49. 

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 2. Vocational Expert Testimony2

 The VE also testified. R at 49-52. He was asked to assume that the claimant 

is a 51 year old individual with a GED high-school equivalent education and past 

work experience who: can perform work at the light exertional level; cannot climb 

ladders, ropes, or scaffolds; can occasionally climb stairs and ramps, stoop, crouch, 

and crawl; is limited to unskilled, simple, repetitive, self-paced work with 

occasional contact with the general public, and with minimal changes in the work 

setting. VE Harrison testified that there were jobs an individual with that residual 

functional capacity (RFC) and given profile could perform, in the categories of 

assembly, sorting, inspecting and cleaning. R at 50-51. 

However, when asked to further assume that, due to frequent episodes of 

pain, depression, and a combination of other impairments which would cause the 

individual to be off-task up to 20 percent of the work day and therefore unable to 

sit, stand, and/or walk a total of eight hours, five days a week, on a regular and 

continuing basis, VE Harrison testified there were no jobs with that RFC. R at 51-

52. 

 

2 R at 145-146 (Resume), 195-196 (Apr. 18, 2013 Vocational Consultant Case 

Analysis).

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 D. The Administrative Decision3

 ALJ Xenos rendered her decision on May 23, 2013. R at 19-36. In so 

doing, she found there had been a change in Plaintiff’s condition since the 

September 19, 2011 decision. R at 22. The ALJ held that Plaintiff had not been 

under a disability within the meaning of the Social Security Act since February 21, 

2012, the date of her application. R at 23. 

 At Step 1, the ALJ found that Plaintiff had not engaged in substantial gainful 

activity since February 21, 2012, the date of her application. R at 24-25. 

 

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. §404.1520(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. Is 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, 20 C.F.R. Subpart P, Appendix 1? 

 4. Considering the claimant’s residual functional capacity, can the 

claimant perform his or her past relevant work? 

 5. 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. §404.1520(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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At Step 2, the ALJ found that Plaintiff had the severe impairments of 

asymptomatic HIV, hepatitis C, depression, and antisocial personality disorder, as 

well as the non-severe impairment of a history of polysubstance abuse. R at 25. 

At Step 3, the ALJ found that Plaintiff did not have an impairment or 

combination of impairments that met or medically equaled the severity of one of 

the listed impairments. R at 25-26. 

 At Step 4, the ALJ found that Plaintiff had the RFC to perform light work, 

except that: Plaintiff needs unskilled, simple, repetitive, self-paced work with 

occasional contact with the general public and minimal changes in the work 

setting; cannot climb ladders, ropes, or scaffolds; can occasionally climb stairs and 

ramps, stoop, crouch, and crawl. R at 26-31. 

 At Step 5, having considered Plaintiff’s age, education, work experience, 

and RFC, the ALJ found that there are jobs that exist in significant numbers in the 

national economy that Plaintiff can perform. R at 32. 

 E. Standard of Review

 The District Court has jurisdiction to review the Commissioner’s final 

administrative decision pursuant to 42 U.S.C. § 405(g). 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. at 2009) 

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(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. at 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 & Human Servs., 25 F.3d 284, 286 (6th Cir. 

1994)). In deciding whether substantial evidence supports the ALJ’s decision, the 

court does “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); 

Rogers, 486 F.3d at 247 (“It is of course for the ALJ, and not the reviewing court, 

to evaluate the credibility of witnesses, including that of the claimant.”). 

 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 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)). 

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Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘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.’” Rabbers, 582 F.3d at 651 (quoting 

Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)). 

F. Analysis

In her motion for summary judgment, Plaintiff challenges the ALJ’s RFC 

and credibility determinations. DE 14 at 10-16. The Commissioner opposes 

Plaintiff’s motion, asserting that substantial evidence supports the ALJ’s RFC 

finding and credibility determinations. DE 17 at 11-23. The Undersigned will 

address each argument raised within this single, broad issue in turn. 

1. Substantial Evidence Supports the ALJ’s Weighing of 

Opinion Evidence 

“Because of the significance of the notice requirement in ensuring that each 

denied claimant receives fair process, a failure to follow the procedural 

requirement of identifying the reasons for discounting the opinions and for 

explaining precisely how those reasons affected the weight accorded the opinions 

denotes a lack of substantial evidence, even where the conclusion of the ALJ may 

be justified based upon the record.” Rogers, 486 F.3d at 243 (citing Wilson v. 

Commissioner of Social Security, 378 F.3d 541, 544 (6th Cir. 2004)). Citing 

Rogers, 486 F.3d at 242-243, Plaintiff argues that “[t]he ALJ's failure to give 

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specific reasons and explain precisely how those reasons affected the weight 

accorded the opinions is a legal error requiring reversal.” DE 14 at 11. Yet 

Plaintiff does not enlighten the Court as to which opinions were improperly 

weighed. To the extent possible, I will endeavor to guess at the Plaintiff’s 

criticisms. 

Plaintiff’s only mention of a “treating physician” is accompanied by 

citations to the September 14, 2012 and January 18, 2013 notes of Dr. Brown (R at 

330-332, 328-329). DE 14 at 13. To the extent, if at all, Plaintiff is challenging 

the ALJ’s assignment of weight to Dr. Brown’s opinions, the Court notes that 

Plaintiff was evaluated by Dr. Brown of University Physician Group on at least six 

(6) occasions. See R at 200-201 (April 15, 2011), 202-203 (August 5, 2011), 335-

336 (April 6, 2012), 333-334 (May 25, 2012), 330-332 (September 14, 2012) and 

328-329 (January 18, 2013). 

Within her Step 4 RFC discussion, the ALJ specifically referenced the April 

15, 2011, August 5, 2011, September 14, 2012 and January 18, 2013 notes of Dr. 

Brown. R at 27-28, 30. In fact, the ALJ in part used Dr. Brown’s September 14, 

2012 notes when detracting from Plaintiff’s credibility. See R at 30, 330-332.4

 

 

4 Although the ALJ did not reference the May 25, 2012 (R at 333-334) or the April 

6, 2012 (R at 335-336) notes, the ALJ need not expressly discuss each piece of 

evidence in her decision. Bailey v. Commissioner of Social Sec., 413 F.App’x 853, 

855 (6th Cir. 2011) (“But [an ALJ] is not required to analyze the relevance of each 

piece of evidence individually. Instead, the regulations state that the decision must 

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Rather than failing to accredit Dr. Brown’s opinion, the ALJ appears to have 

placed some reliance upon it. 

Moreover, the Court should agree that the ALJ properly explained the 

weight she assigned to other opinion evidence. For example, the ALJ found that 

Dr. Chapman’s March 13, 2012 opinion (R at 277-278) was not well supported by 

medically acceptable clinical or diagnostic findings or by the Plaintiff’s treatment 

history. Therefore, the ALJ gave Dr. Chapman’s opinion less weight than the State 

agency Physical Residual Functional Capacity Assessment – presumably the May 

25, 2012 assessment of Kathy A. Morrow, Ph.D. (R at 82-84). R at 28. 

Also, although Drs. Lane and Boneff are not treating medical sources and 

their May 7, 2012 opinions (R at 253-262, R at 352-356) are not entitled to 

controlling weight, the ALJ gave substantial weight to these opinions, noting that 

the opinions “are well supported by objective diagnostic testing, their trained 

observations, an impartial analysis of the evidence of record, and well-reasoned 

conclusions.” The ALJ opined that they “documented and attempted to resolve 

contradictions with input from the claimant and analyzed the claimant’s statements 

 

contain only ‘the findings of facts and the reasons for the decision.’”) (quoting 20 

C.F.R. § 404.953); Kornecky v. Commissioner of Social Security, 167 F.App’x 

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.’”) 

(quoting Loral Defense Systems–Akron v. N.L.R.B., 200 F.3d 436, 453 (6th 

Cir.1999)). 

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in view of the claimant’s daily activities, history, and previous work experience.” 

R at 29. 

Finally, the ALJ assigned great weight to the May 24, 2012 Physical 

Residual Functional Capacity Assessment of Muhammad Mian, M.D. (R at 82-83). 

Here, the ALJ explained that, even though she found Plaintiff slightly more

restricted than did Dr. Mian, Dr. Mian’s evaluation comported well with the 

medical evidence of record. R at 29. 

Thus, there is substantial evidence for the ALJ’s conclusion that the medical 

record failed to support Plaintiff’s allegations. R at 30. 

2. Plaintiff has not demonstrated that the ALJ omitted any 

significant physical or mental limitations from her residual 

functional capacity (RFC) finding. 

 Plaintiff’s RFC is “the most [he or she] can still do despite the physical and 

mental limitations resulting from [his or] 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 Plaintiff’s RFC is an issue reserved 

to the Commissioner and must be supported by substantial evidence. 20 C.F.R. §§ 

404.1527(3), 416.927(e). ‘“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)). 

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Pursuant to Social Security Rule 96-8p, 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 (July 2, 1996) (emphasis added). 

 Here, Plaintiff claims that the ALJ did not comply with the duty “to 

investigate the facts and develop the arguments both for and against granting 

benefits . . . .” Sims v. Apfel, 530 U.S. 103, 111 (2000). DE 14 at 11. At various 

points in her motion, Plaintiff cites Varley v. Secretary of Health & Human 

Services, 820 F.2d 777, 779 (6th Cir. 1987),5

 essentially arguing that the ALJ’s light 

work RFC does not “accurately portray” Plaintiff’s physical and mental 

impairments. DE 14 at 11, 15 & 16. For example, Plaintiff argues that ALJ Xenos 

“does not factor in her RFC determination her own previous conclusion that Ms. 

 

5 “Substantial evidence may be produced through reliance on the testimony of a 

vocational expert in response to a ‘hypothetical’ question, but only ‘if the question 

accurately portrays [plaintiff's] individual physical and mental impairments.’” 

Varley, 820 F.2d at 779 (quoting Podedworny v. Harris, 745 F.2d 210, 218 (3d 

Cir.1984)). 

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Bell suffers from the severe impairment of HIV/AIDS, hepatitis C, antisocial 

personality disorder, and depression.” DE 14 at 11. 

 Mainly, Plaintiff takes issue with what he claims to be missing from the 

ALJ’s decision; in other words, Plaintiff claims the ALJ did not comply with SSR 

96-8p’s narrative discussion requirements. See DE 14 at 16. 

a. Pain, fatigue & diarrhea 

Plaintiff states that “[t]he ALJ never discusses the fact that Plaintiff has pain, 

fatigue, severe diarrhea, and severe medical conditions, which is significant 

because the ALJ concluded she could perform light work which requires she can 

walk and lift object[s] for most of the day.” DE 14 at 11 (citing SSR 83-10). 

According to Plaintiff, “[t]he ALJ found HIV and hepatitis C as severe 

impairments but dismisses the Plaintiff’s complaints of severe fatigue.” DE 14 at 

12. Furthermore, Plaintiff contends the ALJ did not factor or even attempt to 

factor Plaintiff’s severe fatigue, severe pain, need to lie down, or severe medication 

side effects. DE 14 at 13-14. 

The Commissioner correctly observes that the ALJ discussed Plaintiff’s 

pain, fatigue, and diarrhea allegations. See DE 17 at 11-13. For example, the ALJ 

cited Plaintiff’s May 3, 2013 testimony that she could no longer work, because she 

tires out really quickly, has nosebleeds, sores and diarrhea, and faints when she 

gets too hot. R at 27, 44. The ALJ also acknowledged a June 12, 2011 visit for 

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nausea, vomiting and diarrhea, at which time Plaintiff had a .125 blood alcohol 

level. R at 27-28, 202-203. Additionally, the ALJ cited the May 7, 2012 notes of 

Dr. Shelby-Lane, which reflect Plaintiff’s statement that “she has occasional 

episodes of nausea, vomiting and diarrheal stools, possibly side effects from her 

medications.” R at 29, 253-255 (emphasis added). 

Moreover, the ALJ concluded that the medical record did not support 

Plaintiff’s allegations, explaining: 

While the claimant complained of daily diarrhea, on October 25, 

2011, the claimant denied having any abdominal pain; she had no 

constipation, or blood in her stool. The claimant reported she was 

doing well ([R at 263-265]). Within the medical evidence there is 

scant support for excessive nose bleeds or fatigue. Moreover, the 

claimant alleged that when she gets too hot she passes out. At her 

appointment of September 14, 2012, the claimant was negative for 

bone/joint symptoms and muscle weakness. The claimant exhibited 

no unusual anxiety or evidence of depression. She was negative for 

cold intolerance, heat intolerance, polydipsia, and polyphagia ([R at 

331]). Such testimony, without any support in the medical record, 

detracts from the claimant’s credibility. 

 

R at 30 (emphasis added). 

 Thus, not only did the ALJ’s RFC assessment (R at 26-31) discussed pain, 

fatigue and diarrhea, but also it explains why the claim of daily diarrhea was 

discredited. 

b. Use of transit 

Plaintiff takes issue with the extent to which the ALJ relied upon Plaintiff’s 

use of public transportation, arguing that the ALJ inappropriately decided “that 

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simply using the public bus system is proof that Plaintiff is employable in 

competitive employment” and is “proof that she is not disabled.” See DE 14 at 12 

(emphasis added). This argument grossly exaggerates the importance given by the 

ALJ to this particular, admitted activity, and takes her statements out of context. 

The ALJ noted that Plaintiff “was able to use the bus system, consistent with 

a higher level of functioning and inconsistent with disability.” R at 31. This 

observation is supported by Plaintiff’s May 3, 2013 testimony that she occasionally 

takes buses (R at 44) and her May 7, 2012 representation that she takes the bus if 

she needs to go somewhere (R at 353). Daily activities are properly considered 

when evaluating the intensity and persistence of symptoms and determining the 

extent to which symptoms limit the capacity for work. 20 C.F.R. § 

416.929(c)(3)(i). Moreover, the ALJ did not “hang her hat” on the fact that 

Plaintiff rides the bus, but only considered it in conjunction with other daily 

activities as part of the overall, composite picture.6

 

c. Medication & side effects 

Plaintiff testified that the side effects of her medications include diarrhea 

every day, nose bleeds, sores and fainting when she gets warm. R at 48. Yet, the 

 

6

 “The claimant washes her laundry, attends church, goes grocery shopping in 

stores, and rides the bus.” R at 27 (emphasis added). “The claimant was able to 

care for her daily living activities and was able to use the bus system, consistent 

with a higher level of functioning and inconsistent with disability.” R at 31 

(emphasis added). 

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ALJ opined that “[t]he medical record supports a finding that when the claimant is 

compliant with taking all of her medications, her symptoms are generally 

controlled and do not affect her ability to work.” R at 31. The ALJ also stated that 

“the record fails to indicate any significant side effects from medications, which 

would further affect the remaining residual functional capacity.” R at 31. 

Plaintiff considers this statement conclusory and contends that “[t]he ALJ 

never attempts to evaluate the medications or make any determination as to 

whether the medications are the cause of Plaintiff’s severe complaints of diarrhea 

and fatigue.” Plaintiff contends that, if the ALJ had analyzed Plaintiff’s 

medications, the ALJ would have seen that Plaintiff’s complaints are consistent 

with the side effects for Atripla®.7

 DE 14 at 12. It is Plaintiff’s position that the 

ALJ did not “give any adequate rationale for rejecting the Plaintiff’s complaints 

about the medication side effects.” DE 14 at 13. Elsewhere, after citing 20 C.F.R. 

§ 404.1529(c)(3), Plaintiff contends that that the ALJ never discusses the factors of 

medication side effects (see 20 C.F.R. § 404.1529(c)(3)(iv)) or pain symptoms (see

20 C.F.R. § 404.1529(c)(3)(ii)), with the exception of the ALJ’s sentence rejecting 

the medication side effects. DE 14 at 14. 

 

7

 “The most common (at least 5%) moderate to severe side effects in patients on 

ATRIPLA were diarrhea, nausea, tiredness, depression, dizziness, sinusitis, upper 

respiratory tract infections, rash, headache, trouble sleeping, anxiety, and common 

cold. Each of these was reported in less than 10% of patients[.]” See

www.atripla.com (last visited June 11, 2015).

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As discussed above, the ALJ did discuss Plaintiff’s allegations of fatigue and 

diarrhea. The ALJ also discussed Plaintiff’s allegation of nausea, citing Dr. 

Brown’s August 5, 2011 notes about a June 12, 2011 visit (R at 202) and Dr. 

Shelby-Lane’s May 7, 2012 notes (R at 253). R at 27-28 & 29.

However, Plaintiff “has the ultimate burden to establish an entitlement to 

benefits by proving the existence of a disability as defined in 42 U.S.C. § 423(d).” 

Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990). Plaintiff’s motion does not 

support her allegations regarding side effects from medications with citations to 

objective medical evidence. See Farhat v. Secretary of Health & Human Services, 

No. 91-1925, 1992 WL 174540, 3 (6th Cir. July 24, 1992) (“Farhat's allegations of 

the medication's side-effects must be supported by objective medical evidence.”); 

20 C.F.R. §§ 404.1529(a), 416.929(a) (“By objective medical evidence, we mean 

medical signs and laboratory findings as defined in § 404.1528 (b) and (c).”). It 

was well within the ALJs fact-finding function, based on the record before her, to 

find that the alleged side effects were: (a) occasional, as opposed to daily 

occurrences (R at 29, 253-255); (b) generally controlled when Plaintiff is 

compliant with taking all of her medications (R at 31); and (c) apparently 

exacerbated by excessive drinking (R at 27-28, 202-203). 

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d. Homeless 

According to Plaintiff, “[n]ever does the ALJ have any discussion as 

required as to the indigency of Plaintiff and how given the Plaintiff’s homeless 

status affects her ability to stabilize where she is going from night to night; let 

alone taking her medications.” DE 14 at 12.

It appears that Plaintiff’s sister put her out for an unknown amount of time 

after an argument on March 13, 2012 (R at 277). On April 6, 2012, Plaintiff was 

living with her sister (R at 335). On April 23, 2012, Plaintiff was living at COTS 

transitional housing, and expected to be there for about 90 days (R at 303; see also

R at 333). By September 14, 2012, Plaintiff was living in an apartment with a 

roommate, although when she first moved in is not clear in the record. (R at 330). 

Also, as noted above, at the time of the May 3, 2013 hearing, Plaintiff had been 

living in a shelter for approximately 90 days, expected to be there until May 5, 

2013, and did not know where she would be afterward (R at 41-42). 

Thus, the record does provide evidence of at least two 90 day stays in a shelter 

during the relevant period, although there is no evidence of her spending the 

evening hours on the street. Nonetheless, Plaintiff does not provide any law 

requiring these limited periods of homelessness to be factored into her RFC 

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21

analysis at Step 4, explaining how they are supposed to be factored with respect to 

her “ability to stabilize” or take medications, or should otherwise be considered.8

 

e. HIV, hepatitis & alleged hip pain 

The ALJ concluded that Plaintiff is asymptomatic for HIV when she 

complies with taking her HIV medication. The ALJ also stated that Plaintiff was 

asymptomatic for hepatitis C. R at 30. Here, the ALJ relied upon Dr. Brown’s 

January 18, 2013 notes. R at 30, 328-329. 

Plaintiff asserts that “[t]he ALJ without explanation dismisses the severe 

impairments of HIV and hepatitis C.” Plaintiff also contests the ALJ’s 

representation that Plaintiff’s hepatitis C is asymptomatic (R at 30), taking the 

position that Dr. Brown repeatedly expressed concern “about Plaintiff’s liver and 

her inability to get treatment due to insurance issues[,]” specifically citing Dr. 

Brown’s September 19, 2012 and July 18, 2013 notes (R at 329, R at 332). In 

addition, Plaintiff contends that “[t]he ALJ never evaluates the Plaintiff’s severe 

hip pain which there is significant treatment for in the medical records but is never 

evaluated by the ALJ in any way[,]” for which Plaintiff points to Dr. Brown’s 

January 18, 2013 notes. (R at 328). DE 14 at 13. Plaintiff contends that “[t]he 

 

8 See, i.e., Tucker v. Astrue, No. 08-232, 2009 WL 2922044, 7 (D. Idaho Sept. 8, 

2009) (within discussion of error at Step 3, “[w]hen reviewing Petitioner's record, 

it is important to note that Petitioner is homeless and has been living on the streets 

in Spokane and Coeur d'Alene for at least seven years[]. This fact in and of itself 

suggests a level of limitation with regard to activities of daily living well-above the 

‘mild’ range found by the consultants”).

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ALJ ought to have provided adequate limitations resulting from the HIV/AIDS 

[and] hepatitis C . . . .” DE 14 at 14. 

To be sure, Dr. Brown’s January 18, 2013 notes acknowledge that Plaintiff 

has pain in her right hip (R at 320) and state, “Patient cannot undergo hep[atitis] C 

treatment as she is currently uninsured[,]” R at 329. Furthermore, notes from the 

September 14, 2012 visit state: “HCV Ab positive in 2010. HCV quant with HIV 

labs. Likely cause of transaminase elevation. Will follow and address treatment 

needs.” R at 332. 

However, whatever the status of Plaintiff’s hepatitis C symptoms, the ALJ 

did acknowledge Dr. Brown’s August 5, 2011 notes that Plaintiff had missed one 

month of medications (R at 202) and that Plaintiff’s HIV remained clinically stable 

(R at 203). R at 27-28. The ALJ also acknowledged Dr. Blake’s October 25, 2011 

notes that the Plaintiff had no complaints and that “last CD4 count was 460 and 

viral load less than 48 done in December 2010[,]” (R at 263-266). R at 28.9

 The 

ALJ further acknowledged Dr. Shelby-Lane’s May 7, 2012 notes that Plaintiff: had 

a history of HIV disease; has occasional episodes of nausea, vomiting and diarrheal 

stools, which are possibly side effects from her medications; and had a history of 

hepatitis C, for which she had had blood tests and was being followed by her 

 

9 Although not expressly discussed by the ALJ, the undersigned acknowledges Dr. 

Brown’s April 6, 2012 notes, which represent that Plaintiff “[h]as been out of her 

meds for a month because she lost her insurance.” R at 335-336.

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23

primary care physician (R at 253). R at 29. Furthermore, in support of her 

conclusion that Plaintiff’s HIV is asymptomatic when she takes her HIV 

medication, the ALJ referred to and is supported by Dr. Brown’s January 18, 2013 

notes that Plaintiff’s October 24, 2012 CD4 count was 284 with viral load 20 (R at 

328-329). Moreover, even if the ALJ omitted discussion of Plaintiff’s hip pain as 

mentioned in Dr. Brown’s January 18, 2013 notes, the ALJ did recognize Dr. 

Brown’s note that Plaintiff no longer needed to ambulate with a cane (R at 328). R 

at 30. Contrary to Plaintiff’s argument, the ALJ neither ignored nor dismissed 

these conditions “without explanation.” 

 f. Antisocial personality disorder and depression 

As noted above, the ALJ’s Step 2 findings included the severe impairments 

of depression and antisocial personality disorder; accordingly, the ALJ stated that 

Plaintiff’s severe impairments “cause more than minimal limitations on the 

claimant’s ability to perform basic work-related activities.” R at 25. 

It is Plaintiff’s position that “[t]he ALJ ought to have provided adequate 

limitations resulting from . . . antisocial personality disorder, and depression.” DE 

14 at 14. This argument is unavailing. First, in her Step 4 analysis the ALJ 

explained, “[t]he claimant may have an antisocial personality disorder; therefore, 

the [RFC] assessment provides for only occasional contact with the public[,]” 

“[b]ecause of the claimant’s depression and personality disorder, all work is to be 

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unskilled, simple, repetitive, and self-paced[,]” and “[t]he claimant is limited to 

only minimal changes in the work setting.” R at 31. Second, these limitations 

were taken into consideration and repeated within the RFC statement, in which the 

ALJ included the limitations of unskilled, simple, repetitive and self-paced work, 

as well as occasional contact with the general public and minimal changes in the 

work setting. R at 26-27. 

Plaintiff also challenges the ALJ’s assessment of Plaintiff’s concentration, 

persistence, or pace. By way of background, within the ALJ’s Step 3 consideration 

of the “Paragraph B” criteria, the ALJ found that “[w]ith regard to concentration, 

persistence, or pace, the claimant had moderate difficulties.” R at 26. Plaintiff 

submits that “[t]here is no mention in the RFC of the ALJ’s findings that Plaintiff 

has moderate limitations in concentration, persistence, or pace.” Plaintiff further 

argues that the ALJ did not factor in Plaintiff’s moderate limitations in 

concentration into the RFC findings. Furthermore, Plaintiff challenges the 

“simple, repetitive, self-paced” conditions as non-descript, failing to accurately 

portray Plaintiff’s impairments, and failing to equate into an RFC. Plaintiff argues 

that the ALJ did not accurately portray Plaintiff’s severe mental impairments and 

concentration problems. Then, Plaintiff argues that “the concentration deficits 

must be factored.” 

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However, not only did the ALJ assess the foregoing mental limitations, but 

also the ALJ’s Step 4 RFC finding referred to Dr. Boneff’s May 7, 2012 report (R 

at 352-356), which stated that Plaintiff “[d]emonstrated intact capacity to 

concentrate as evidenced by performance on calculational tasks.” R at 29, 355. 

It is a recurring theme in Plaintiff’s criticism of the ALJ’s decision that she 

supposedly “over and over again contradicts her own severe [Step 2] impairment 

findings” in her Step 4 RFC, and that “the RFC is contradictory to her severe 

impairment findings.” See, e.g., DE 14 at 11. As pointed out by the Commissioner 

and understood by the ALJ, however, “the paragraph B analysis [done at Step 2] 

addresses global limitations, and is broader than the RFC’s narrow focus on work 

limitations.” DE 17 at 21. See Charlton v. Comm’r of Social Sec., No. 1:11-CV992, 2013 WL 5806169, at *8 (W.D. Mich. Oct. 29, 2013) (“It is well established 

that the paragraph B criteria...are not an RFC assessment.”) (citations and quotes 

omitted).10 

Finally, while “a hypothetical simply limiting a claimant to unskilled work 

may, in some instances, fail to capture a claimant's moderate limitations in 

 

10 See also, SSR 96–8p, 1996 WL 374184, at *4 (July 2, 1996) (“[t]he adjudicator 

must remember that the limitations identified in the “paragraph B” and “paragraph 

C” criteria are not an RFC assessment but are used to rate the severity of mental 

impairment(s) at steps 2 and 3 of the sequential evaluation process. The mental 

RFC assessment used at steps 4 and 5 of the sequential evaluation process requires 

a more detailed assessment by itemizing various functions contained in the broad 

categories found in paragraphs B and C of the adult mental disorders listings in 

12.00 of the Listing of Impairments, and summarized on the PRTF.”). 

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concentration, persistence or pace because the difficulty of a task does not always 

equate with the difficulty of staying on task[,]” “there is no bright-line rule 

requiring remand whenever an ALJ's hypothetical includes a limitation of 

“unskilled, routine work” but excludes a moderate limitation in concentration. 

Rather, this Court must look at the record as a whole and determine if substantial 

evidence supports the ALJ's RFC.” Smith v. Commissioner of Social Sec., No. 13-

10862, 2013 WL 6094745, 7-8 (E.D. Mich. Nov. 20, 2013) (Zatkoff, J., adopting 

report and recommendation of Randon, M.J.). 

g. Conclusion 

Defendant points out that it is the claimant’s burden to prove his RFC. DE 

17 at 13, 15, 16; see 20 C.F.R. § 416.912(a);11 Foster v. Halter, 279 F.3d 348, 353 

(6th Cir. 2001). Plaintiff has not satisfied his burden to challenge the ALJ’s RFC 

finding. 

Even if, as Plaintiff contends, the ALJ omitted discussion of some items, 

Plaintiff has not shown the omission was harmful. See Shinseki, Secretary of 

Veterans Affairs v. Sanders, 556 U.S. 396, 409 (2009) (“[T]he burden of showing 

that an error is harmful normally falls upon the party attacking the agency’s 

determination.”). 

 

11 “In general, you have to prove to us that you are blind or disabled.” 20 C.F.R. 

416.912(a). 

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In the end, as noted above, the ALJ’s light work RFC finding included 

several limitations (R at 26-27). The ALJ gave substantial weight to the May 7, 

2012 opinions of Drs. Lane and Boneff (R at 29, 253-262, 352-356), within which 

Dr. Boneff noted that Plaintiff appeared “capable of engaging in work type 

activities of a relatively high degree of complexity, remembering and executing a 

multiple-step procedure on a sustained basis with relatively intact capacity for 

work related judgment and decision making.” The ALJ also gave great weight to 

the May 24, 2012 Physical RFC Assessment of Dr. Mian (R at 29, 82-83), which 

noted that Plaintiff could stand and/or walk with normal breaks for a total of 

approximately 6 hours in an 8-hour workday and could sit with normal breaks for a 

total of approximately 6 hours in an 8-hour workday. Additionally, as to Plaintiff’s 

claim that the ALJ does not explain how Plaintiff can lift 20 pounds in her 

condition (DE 14 at 13), Plaintiff herself testified that she could lift “about 10, 20” 

pounds (R at 45). 

Thus, the ALJ’s conclusion that Plaintiff has the RFC to perform light work, 

except that she “needs unskilled, simple, repetitive, self-paced work with 

occasional contact with the general public and minimal changes in the work 

setting; cannot climb ladders, ropes, or scaffolds; can occasionally climb stairs and 

ramps, stoop, crouch, and crawl[,]” R at 26-27, is supported by the record. 

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 3. Substantial Evidence Supports the ALJ’s Conclusions with 

 Regard to Plaintiff’s Credibility 

 The ALJ found that Plaintiff was less than fully credible, contending the 

allegations regarding her limitations were significantly inconsistent with the 

record. Specifically, the ALJ noted: 

The claimant is an alcoholic; however, her alcoholism does not more 

than minimally affect her ability to perform work-related activities. 

She also intermittently used crack cocaine and marijuana, although 

she denied doing so at hearing. The claimant stated that the reason 

she could not work was because of fatigue, nose bleeds, diarrhea, and 

“when I get too hot, I passed out.” However, these impairments, either 

separately or in combination, are not disabling.

 12

R at 30 (emphasis added); see also May 3, 2013 hearing testimony (R 44, 48). The 

ALJ further stated that Plaintiff “is often noncompliant in taking her 

medications[,]” explaining as follows: 

When a claimant alleges a condition severe enough to be disabling, 

there is a reasonable expectation that the claimant will not only seek 

examination and treatment, but also follow her doctor’s advice. The 

failure of the claimant to seek examination and treatment for the 

condition and to follow her doctor’s advice reflects poorly on the 

credibility of the claimant and the assertions that the condition is 

disabling. 

 

12 April 15, 2011 notes indicate that Plaintiff had tested positive for cocaine (R at 

200). April 6, 2012 notes indicate that Plaintiff completed a 45 day rehabilitation 

program for use of crack (R at 335). Dr. Brown’s January 18, 2013 notes indicate 

that, at some point, Plaintiff was seen at the DMC for the use of crack cocaine (R 

at 328). Then, on May 3, 2013, Plaintiff testified that she does not still drink a lot 

and does not use marijuana. R at 47. 

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R at 30. Noncompliance is a sufficient reason to discount credibility. See Sias v. 

Sec’y of Health & Hum. Servs., 861 F. 2d 475, 480 (6th Cir. 1988) (concluding that 

the ALJ properly discounted the claimant’s credibility where he failed to follow 

prescribed treatment); S.S.R. 96-7p, 1996 WL 374186, at *8 (noting that “the 

individual’s statements may be less credible if . . . the medical reports or records 

show that the individual is not following the treatment as prescribed and there are 

no good reasons for this failure.”). As previously noted, Plaintiff argues, in part, 

that the ALJ’s credibility determination does not comply with the SSA’s rules and 

regulations. DE 14 at 10-16. Plaintiff takes issue with the insinuation that a lack 

of compliance with medication on her part suggests her conditions are not 

disabling and, as noted in an earlier section, takes the position that the ALJ should 

have accounted for her economic and domestic situation. 

 However, the Court should conclude, as the Commissioner argues, that the 

ALJ properly evaluated Plaintiff’s credibility. “In evaluating complaints of pain, 

an ALJ may properly consider the credibility of the claimant.” Walters v. 

Commissioner of Social Sec., 127 F.3d 525, 531 (6th Cir. 1997). “Furthermore, an 

ALJ's findings based on the credibility of the applicant are to be accorded great 

weight and deference, particularly since an ALJ is charged with the duty of 

observing a witness's demeanor and credibility.” Walters, 127 F.3d at 531. 

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“Nevertheless, an ALJ's assessment of a claimant's credibility must be supported 

by substantial evidence.” Id. 

Contrary to her own representations to medical personnel and to the ALJ, 

her medical records demonstrate a 2011 urine drug screen which was positive for 

cocaine (R at 200); a June 12, 2011 blood alcohol level of .125 (R at 202); an 

April 17, 2012 admission of drinking heavily (R at 304), and a positive test for 

alcohol and crack cocaine in November 2012 (R at 328).13 Moreover, the 

Commissioner permissibly notes Dr. Boneff’s May 7, 2012 impression that 

Plaintiff could engage in a certain type of work (R at 355), Dr. Mian’s May 24, 

2012 assessment that Plaintiff’s condition was not severe enough to keep her from 

working (R at 84), and Dr. Morrow’s May 25, 2012 notes that Plaintiff “retains the 

mental capacity to sustain an independent routine of simple work activity.” R at 

84. 

Additionally, and also contrary to Plaintiff’s allegations and testimony, the 

medical record indicates that she was not cold or heat intolerant on September 14, 

2012 (R at 331), she no longer needed to ambulate with a cane (R at 328), and she 

displayed “[n]o unusual anxiety or evidence of depression[,]” on several occasions. 

R at 329 (January 18, 2013), 331 (September 19, 2012), 334 (May 25, 2012) & 336 

(April 6, 2012). Notes from September 14, 2012 state: “Two weeks of semi-

 

13 See R 202-203, where Plaintiff denies use of cocaine and alcohol, and R 47, 

where she denies heavy drinking and use of marijuana. 

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31

formed bowel movements 3 times per day which has occurred in the past while 

taking Atripla and resolved on its own.” At the same visit, Plaintiff was negative 

for fatigue, fever and night sweats. R at 330. Each of these records arguably 

contradicts or indicates an exaggeration of the complaints made here. 

Additionally, Plaintiff testified on May 3, 2013 that she worked from 

November 2011 through April 2012, when she took care of her sister who had 

experienced a stroke, and that she earned $4,000 in doing so. R at 42-43. She also 

testified that she occasionally takes the bus (R at 44), grocery shops once per 

month, does her own laundry (R at 45), and fixes her own meals (R at 46). The 

March 6, 2012 function report indicates she has no problem with personal care. R 

at 174. 

Given the totality of the record, the ALJ provided a sufficiently specific 

explanation for finding that: “[t]he medical record fails to support the claimant’s 

allegations,” and “detracts from claimant’s credibility” (R at 30); “these symptoms 

are not entirely credible” (R at 27); and, that “such activity reflects poorly upon 

[Plaintiff’s] veracity . . . .” (R at 31). The Court should conclude, as illustrated in 

the immediately foregoing paragraphs, that the ALJ’s credibility assessment is 

supported by substantial evidence by way of Plaintiff’s medical records, Plaintiff’s 

own testimony and the May 2012 Disability Determination Explanation. 

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G. 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 RECOMMENDED that the Court DENY Plaintiff’s motion for 

summary judgment, GRANT Defendant’s motion for summary judgment, and 

AFFIRM the Commissioner of Social Security’s decision. 

III. PROCEDURE ON OBJECTIONS

 The parties to this action may object to and seek review of this Report and 

Recommendation, but are required to file any objections within 14 days of service, 

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 

72.1(d). Failure to file specific objections constitutes a waiver of any further right 

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health & 

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that 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. Sec’y of Health & 

Human Servs., 932 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of 

Teachers Local 231, 829 F.2d 1370, 1273 (6th Cir. 1987). Pursuant to Local Rule 

72.1(d)(2), any objections must be served on this Magistrate Judge. 

 Any objections must be labeled as “Objection No. 1,” and “Objection No. 

2,” etc. Any objection must recite precisely the provision of this Report and 

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33

Recommendation to which it pertains. Not later than 14 days after service of an 

objection, the opposing party may file a concise response proportionate to the 

objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR 

72.1(d). The response must specifically address each issue raised in the objections, 

in the same order, and labeled as “Response to Objection No. 1,” “Response to 

Objection No. 2,” etc. If the Court determines that any objections are without 

merit, it may rule without awaiting the response. 

 /s/Anthony P. Patti 

 ANTHONY P. PATTI 

 UNITED STATES MAGISTRATE JUDGE 

Dated: June 24, 2015 

I hereby certify that a copy of the foregoing document was served upon the parties 

and/or counsel of record on June 24, 2015, by electronic means and/or ordinary 

mail. 

 s/Holly A. Monda 

HOLLY MONDA, in the absence of 

Michael Williams 

Case Manager 

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