UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ELLA MAE WHITE,

Plaintiff,

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

____________________________________/

Case No. 14-12870

Judith E. Levy

United States District Judge

Michael Hluchaniuk

United States Magistrate Judge

REPORT AND RECOMMENDATION

CROSS MOTIONS FOR SUMMARY JUDGMENT (Dkt. 12, 13)

I. PROCEDURAL HISTORY

A. Proceedings in this Court

On July 23, 2014, plaintiff filed the instant suit seeking judicial review of

the Commissioner’s unfavorable decision disallowing benefits. (Dkt. 1). Pursuant

to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(b)(3), District Judge Judith E.

Levy referred this matter to the undersigned for the purpose of reviewing the

Commissioner’s decision denying plaintiff’s claim for supplemental security

income. (Dkt. 2). This matter is before the Court on cross-motions for summary

judgment. (Dkt. 12, 13). 

A. Administrative Proceedings

Plaintiff filed the instant claim on May 10, 2011, alleging disability

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beginning October 1, 2006. (Dkt. 9-2, Pg ID 59). The claims were initially

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disapproved by the Commissioner on November 4, 2011. Id. Plaintiff requested a

hearing and on December 3, 2012, plaintiff appeared with counsel before

Administrative Law Judge (ALJ), Gregory Holiday, who considered the case de

novo. (Dkt. 9-2, Pg ID 77-125). In a decision dated March 12, 2013, the ALJ

found that plaintiff was not disabled from the application date through the date of

decision. (Dkt. 9-2, Pg ID 56-73). Plaintiff requested a review of that decision,

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

review of additional exhibits, the Appeals Council, on May 29, 2014, denied

plaintiff’s request for review. (Dkt. 9-2, Pg ID 40-45); Wilson v. Comm’r of Soc.

Sec., 378 F.3d 541, 543-44 (6th Cir. 2004). 

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For the reasons set forth below, the undersigned RECOMMENDS that

plaintiff’s motion for summary judgment be DENIED, that defendant’s motion for

 Notably, a prior application for SSI was filed by plaintiff on November 15, 2006,which 1

was denied on September 8, 2009. (Dkt. 9-2, Pg ID 59). The ALJ noted at the hearing that he

would have to find that, as of September 3, 2009 (the date of the prior decision), plaintiff was not

disabled. (Dkt. 9-2, Pg ID 82).

 In this circuit, where the Appeals Council considers additional evidence but denies a 2

request to review the ALJ’s decision, since it has been held that the record is closed at the

administrative law judge level, those “AC” exhibits submitted to the Appeals Council are not

part of the record for purposes of judicial review. See Cotton v. Sullivan, 2 F.3d 692, 696 (6th

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

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

final decision of the Commissioner, the court can consider only that evidence presented to the

ALJ. In other words, Appeals Council evidence may not be considered for the purpose of

substantial evidence review.

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

AFFIRMED.

II. FACTUAL BACKGROUND

A. ALJ Findings

Plaintiff was 36 years old on the application date. (Dkt. 9-2, Pg ID 61). 

Plaintiff’s relevant work history included work as a home health aide. (Dkt. 9-2,

Pg ID 61). The ALJ applied the five-step disability analysis to plaintiff’s claims

and found at step one that plaintiff had not engaged in substantial gainful activity

since the application date. (Dkt. 9-2, Pg ID 62). At step two, the ALJ found that

plaintiff’s systemic lupus erythematosus (SLE), congestive heart failure,

hypertension , and pulmonary HTN were “severe” within the meaning of the

second sequential step. Id. At step three, the ALJ found that plaintiff’s severe

impairments did not meet or equal a listed impairment. Id. The ALJ found that

plaintiff had the following residual functional capacity:

After careful consideration of the entire record, I find

that the claimant has the residual functional capacity to

perform sedentary work as defined in 20 CFR 416.967

(a) except the claimant cannot push or pull with the right

upper extremity; cannot operate foot controls with the

right lower extremity; cannot climb any ladders, ropes,

or scaffolds; can only briefly (up to 10% of the workday)

climb ramps or stairs; can only occasionally stoop,

crouch, or kneel; can only briefly crawl; cannot perform

overhead reaching and handling bilaterally; cannot

constantly perform gross manipulation; and must avoid

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even moderate exposure to environmental irritants (such

as dusts, gases, fumes, and odors) and to poorly

ventilated areas.

(Dkt. 9-2, Pg ID 62-63). At step four, the ALJ found that plaintiff was unable to

perform her past relevant work. (Dkt. 9-2, Pg ID 71). At step five, the ALJ denied

plaintiff benefits because she could perform a significant number of jobs available

in the national economy. (Dkt. 9-2, Pg ID 72-73).

B. Plaintiff’s Claims of Error

According to plaintiff, the ALJ erred when he failed to properly assess the

plaintiff’s mental RFC as required by agency regulations. 20 C.F.R.

§ 404.1503(e). Plaintiff testified to both symptoms of depression as well as

anxiety. Specifically, she testified to having crying spells, fixation on pain,

isolation and not wanting to leave her house, anxiety when out of her house as

well as lack of motivation and lethargy. Plaintiff contends that her testimony

concerning her depression and anxiety warranted a consultative examination by a

qualified psychologist or psychiatrist pursuant to 20 C.F.R. § 404.1503(e). Thus,

plaintiff also argues that the ALJ did not properly evaluate her mental impairment

pursuant to SSR 96-8p and SSR 85-15. A severe impairment, is one that causes

more than a minimal effect on the claimant’s ability to perform basic

work activities. Higgs v. Bowen, 880 F2d 860, 862 (6th Cir. 1988). The Higgs

court further held that “an impairment can be considered not severe only if it

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is a slight abnormality that minimally affects work ability regardless of age,

education, and experience.” Under this standard, plaintiff says that it is clear that

her mental impairment was mischaracterized by the ALJ and must be revisited.

Pursuant to Farris v. Secretary of H.H.S., 773 F.2d 85, 89-90 (1985),

remand is required where there has been an erroneous finding regarding the

claimant’s severe impairment. According to plaintiff, her ability to work has been

severely over-estimated, resulting in an erroneous finding that she retains the

ability to perform sedentary work. The ALJ ignored her numerous additional

significant symptoms when determining that she could work as a surveillance

system monitor, order checker, or visual inspector (for example from the VE’s

findings). Plaintiff says that the ALJ seems to have ignored the additional

hypotheticals posed to the VE, which asked if plaintiff would be able to work if it

was necessary for her to take breaks or miss three or more days of work per month

due to illness. (Tr 79). The VE clearly stated that such a requirement would

preclude the plaintiff from holding a job.

Plaintiff next argues that the ALJ violated agency regulations by failing to

state a rationale or reference supporting evidence to back his RFC findings.

Agency regulations, SSR 96-8p, require that an RFC assessment “include a

narrative discussion describing how the evidence supports each conclusion, citing

specific medical facts (e.g. laboratory findings) and nonmedical evidence (e.g.

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daily activities, observations).” The ALJ is also required to include in his RFC

assessment “a discussion of why reported symptom-related functional

limitation/restrictions can or cannot reasonably be accepted as consistent with the

medical and other evidence.” Id. As indicated above, nowhere in the ALJ’s

decision does he go through each work-related activity the plaintiff can perform

and nor does he address the medical evidence that supports his conclusions

outlined in the RFC. (Tr. 23). Plaintiff contends that the ALJ does not, as

required by SSR 96-8p, include a narrative discussion describing how the

evidence supports each conclusion, citing specific medical facts and non-medical

evidence and as such must be reversed.

Plaintiff also asserts that this case should be remanded because there is no

support for the ALJ’s RFC assessment, and the RFC’s contained in the record do

not comport with the ALJ’s conclusion. In this matter, the ALJ discounted the

Physical Residual Functional Capacity Assessment performed by the state agency

medical consultant dated November 2, 2011. The state agency medical consultant

found that plaintiff was capable of performing light exertional weight parameters

and that she was capable of sitting, standing, and/or walking for approximately 6

hours in a normal 8 hour work day with no postural, manipulative, visual,

communicative, or environmental limitations. (Tr. 587). In addition, the ALJ

determined that “I find that the treatment notes do not substantiate Dr. Popoff’s

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conclusions, and thus assign greater weight to the treatment notes than to his

opinion.” (Tr. 26). The ALJ is referring to a checklist-type form, Dr. Popoff

completed for the State of Michigan, Department Human Services. Specifically,

Dr. Popoff completed a Physical Capacity Assessment and a Medical Needs Form

for plaintiff’s qualifications for state benefits through the State of Michigan,

Department of Human Services. In rejecting the opinions of the state agency

medical consultant as well as Dr. Popoff, plaintiff’s treating physician, the only

two medical providers who provided an RFC, plaintiff asserts that the ALJ has

essentially made up an RFC. Pursuant to SSR 83-10 the ALJ’s RFC is required to

rely on the medical evidence presented, as residual functional capacity is a medical

assessment. According to plaintiff, the ALJ is not qualified to make a medical

assessment and must rely on the medical assessments of the treating and/or

consultative examiner(s).

The RFC finding directly contradicts the testimony and evidence presented

at the hearing. The plaintiff testified that she had flare-ups 10 days a month,

where she would be fatigued and in pain to the point that she could not do

any activity whatsoever. Further, she testified that she was winded walking

from her apartment to the elevator. (Tr. 61). Several hypotheticals were posed

to the VE, including one including all the above restrictions and instructed

the VE to assume that the employee would require 3 health-related absences

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per month. The VE, Pauline McEachin, replied that most employment allows

for only one such absence per month, thus eliminating any available jobs.

Despite this direct testimony, the ALJ found that plaintiff is not disabled and

can hold a (of only three given) sedentary job. (Tr 14). This is particularly

significant where the burden to prove that a claimant could perform other

work existing in the national economy falls upon the Commissioner. Felisky

v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). This Court may reverse the ALJ’s

findings if they are either contrary to controlling legal standards or unsupported by

substantial evidence in the record. 42 U.S.C. § 405 (g); Lindsley v. Comm’r of Soc

Sec, 560 F.3d 601, 604 (6th Cir. 2009). Clearly, the ALJ’s findings are not

supported by substantial evidence where the determination that plaintiff can work

is directly contradicted by both her own testimony and that of the VE. Therefore,

it is respectfully requested that this matter be remanded for a proper evaluation of

her RFC.

C. The Commissioner’s Motion for Summary Judgment

Plaintiff alleges that the ALJ failed to assess her mental RFC according to

the Agency’s regulations. In evaluating plaintiff’s impairments, the ALJ found at

step two, that her systemic lupus erythematosus, congestive heart failure,

hypertension, and pulmonary hypertension were severe impairments, but her

anemia and overweight/obesity were non-severe impairments. (Tr. 23). Thus, as

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the Commissioner points out, the initial issue is whether the ALJ’s step-two

finding is supported by substantial evidence.

Pursuant to the regulations, a severe impairment is a “medically

determinable” physical or mental impairment or a combination of impairments that

significantly limit(s) an individual’s physical or mental ability to perform basic

work activities. 20 C.F.R. §§ 416.920(a)(4)(ii), 416.920(c). The regulations go on

to state that basic work activities include the following: 1) physical functions such

as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or

handling; 2) capacities for seeing, hearing, and speaking; 3) understanding,

carrying out, and remembering simple instructions; 4) use of judgment; 5)

responding appropriately to supervision, co-workers, and usual work situations;

and 6) dealing with changes in a routine work setting. 20 C.F.R. § 416.921(b). In

establishing the presence of a severe, medically determinable impairment,

however, plaintiff bears the burden of providing medical evidence that

demonstrates the severity of her condition. See Bowen v. Yuckert, 482 U.S. 137,

146 (1987); Social Security Ruling (“SSR”) 85-28, 1985 WL 56856, at *3. Here,

though, the only evidence plaintiff presents to establish that her mental

impairment(s) was severe is her hearing testimony. In addition, as explained in

SSR 96-4p:

Although the regulations provide that the existence of a

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medically determinable physical or mental impairment

must be established by medical evidence consisting of

signs, symptoms, and laboratory findings, the regulations

further provide that under no circumstances may the

existence of an impairment be established on the basis of

symptoms alone. Thus, regardless of how many

symptoms an individual alleges, or how genuine the

individual's complaints may appear to be, the existence

of a medically determinable physical or mental

impairment cannot be established in the absence of

objective medical abnormalities; i.e., medical signs and

laboratory findings.

1996 WL 374187, at *1. As such, the Commissioner maintains that plaintiff failed

to carry her burden of establishing a severe mental impairment through medical

evidence. Yuckert, 482 U.S. at 146; SSR 85-28, 1985 WL 56856, at *3.

The Commissioner also contends that a review of the record reveals that

there is no evidence establishing that plaintiff had a mental impairment. First,

Plaintiff does not list a mental impairment in her Disability Report – Adult,

though, she does report that she has eleven physical impairments (Tr. 255); and in

her Disability Report – Appeal she states that she has no new illnesses or

conditions. (Tr. 300). Plaintiff’s medical records also demonstrate that on

numerous occasions her providers observed that she had no unusual anxiety or

evidence of depression. (Tr. 460, 464, 469, 548, 566, 577). Further, Plaintiff’s

providers consistently observed that she was alert and oriented or alert and

oriented to three spheres (Tr. 365, 450, 460, 464, 469, 488, 548, 566, 577), and her

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mood and affect were appropriate. (Tr. 450). In addition, Dr. Shaw concluded

that plaintiff was alert and oriented to three spheres, her speech was normal, and

she knew her date of birth and the current President. (Tr. 600). Moreover, there is

no evidence that plaintiff ever sought any mental health treatment. (Tr. 315-604).

Therefore, the Commissioner contends that, as plaintiff failed to identify any

objective evidence that demonstrates that she has a medically determinable mental

impairment, and the evidence in the record does not reveal a mental impairment,

plaintiff failed to establish any error by the ALJ.

While plaintiff then contends that the Agency’s regulations require the state

agency to have a psychologist or psychiatrist review the file when there is

evidence of the existence of a mental impairment, the Commissioner points out

that the record does not contain any evidence of a mental impairment. Further,

while plaintiff testified at the hearing that she had mental health symptoms, the

ALJ found that her subjective complaints were not entirely credible (Tr. 32), a

finding that the Commissioner points out that plaintiff has not challenged in this

appeal.

Plaintiff also claims that due to her testimony about her mental health

symptoms, the Agency was required to refer her to a psychiatrist or a psychologist

for a mental consultative examination. A consultative examination may be

obtained when the evidence as a whole, both medical and nonmedical, is not

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sufficient to support a decision on an individual’s claim. 20 C.F.R.

§ 416.919a(b)). Here, the Agency determined that additional evidence regarding

plaintiff’s physical impairments was required (Tr. 145), and plaintiff was referred

to a consultative examination with Dr. Shaw. (Tr. 598-604). However, given that

there was no evidence that established the presence of a mental impairment, the

Commissioner maintains that the Agency was not required to obtain a psychiatric

or psychological consultative examination. See Landsaw v. Sec’y of Health &

Human Servs., 803 F.2d 211, 214 (6th Cir. 1986) (“[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.”) (citing 20 C.F.R. § 416.917(a)). 

While plaintiff asserts that in assessing a claimant’s RFC, the ALJ has to

express her mental limitations in terms of work-related functions, the

Commissioner points out that in determining a claimant’s RFC, the ALJ only

considers functional limitations from medically determinable impairments. SSR

96-8p, 1996 WL 374184, at *1. Here, plaintiff has presented no evidence that she

has a medically determinable mental impairment, nor has plaintiff identified any

work-related limitations that her alleged condition imposes. Plaintiff points to

SSR 85-15, but the Commissioner says that Ruling merely sets forth the basic

mental demands of unskilled work, and in the present case, there is no evidence in

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the record that plaintiff has a mental impairment or experiences any mental

limitations. SSR 85-15, 1985 WL 56857, at *4. Moreover, while plaintiff cites

Farris v. Sec’y of Health and Human Servs., 773 F.2d 85, 89-90 (6th Cir. 1985),

the Commissioner contends that decision merely discusses the severity standard;

but again, plaintiff failed to present any medical evidence establishing the

existence of a mental impairment, let alone a severe impairment.

Plaintiff additionally maintains that the ALJ ignored the hypothetical

question to the vocational expert that included restrictions that she needed to take

breaks and would miss three or more days of work a month due to illness. “A

vocational expert’s testimony concerning the availability of suitable work may

constitute substantial evidence where the testimony is elicited in response to a

hypothetical question that accurately sets forth the plaintiff’s physical and mental

impairments.” Smith v. Halter, 307 F.3d 377, 378 (6th Cir. 2001). An ALJ,

however, is not required to incorporate unsubstantiated allegations into his

hypothetical question. Stanley v. Sec’y of Health & Human Servs., 39 F.3d 115,

118 (6th Cir. 1994); Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230,

1235 (6th Cir. 1993) (“It is well established that an ALJ . . . is required to

incorporate only those limitations accepted as credible by the finder of fact.”).

Here, according to the Commissioner, there is no evidence that corroborates the

limitations in the hypothetical question that plaintiff cited, and thus, the ALJ was

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not required to adopt the vocational expert’s response.

Plaintiff contends that the ALJ failed to discuss each work-related activity

in determining her RFC. Pursuant to SSR 96-8p, an ALJ must do a

function-by-function assessment of the seven strength demands, i.e., sitting,

standing, walking, lifting, carrying, pushing, and pulling. SSR 96-8p, 1996 WL

374184, at *5. The Commissioner maintains that the ALJ complied with that

requirement. First, in the RFC finding, the ALJ limited plaintiff to no

pushing/pulling with her right upper extremity and no use of foot controls with her

right lower extremity. (Tr. 23). The ALJ also determined that plaintiff could only

lift and carry up to ten pounds occasionally, stand and walk for approximately two

hours in an eight-hour day, and sit for approximately six hours in an eight-hour

day. (Tr. 31). As such, the ALJ accounted for the seven strength demands in his

decision. (Tr. 23, 31). Further, to the extent that plaintiff is alleging that the ALJ

had to conduct a function-by-function assessment of her mental limitations, as

discussed in Section A, the Commissioner again asserts that there is no evidence

that plaintiff had a medically determinable or severe mental impairment, or that

she experienced any mental restrictions.

Plaintiff also claims that the ALJ did not include a narrative discussion of

how the evidence supported each of his conclusions. An RFC assessment must

include a narrative discussion describing how the evidence supports each

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conclusion with citations to specific medical facts and nonmedical evidence. SSR

96-8p, 1996 WL 374184, at *7. In the present case, the Commissioner contends

that the ALJ complied with that requirement, as he discussed the objective and

subjective evidence that he considered in formulating his RFC determination, and

cited the evidence that supported his finding. (Tr. 24-32). Specifically, the ALJ

evaluated the evidence regarding plaintiff’s fibromyalgia (Tr. 24-25), discussed

plaintiff’s hearing testimony (Tr. 25-26) and the objective evidence in the record

(Tr. 26-30), and went through the required analysis for SSRs 03-2p and 02-1p. 

(Tr. 30-31). The ALJ also discussed the evidence that supported his findings

regarding plaintiff’s ability to lift, carry, push, pull, stand, walk, sit, operate foot

controls, and engage in postural activities (Tr. 31), as well as the evidence that

substantiated her environmental restrictions and his credibility finding. (Tr. 32).

Plaintiff also asserts that because the ALJ rejected the opinion of the state

agency physician and her treating physician, the ALJ “essentially made up an

RFC.” Plaintiff goes on to state that the RFC finding is a medical assessment, and

thus, the ALJ is not qualified to make such a determination and has to rely on

assessments from treating and/or examining sources. Contrary to plaintiff’s

argument, the Commissioner maintains that the RFC finding is an administrative

determination of the most that a claimant can do despite her impairments. 20

C.F.R. §§ 416.927(d)(2), 416.945(a). The ALJ is also charged with rendering the

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RFC determination, and is not required to base it on any particular piece of

evidence. 20 C.F.R. § 416.946(c); Rudd v. Comm’r of Soc. Sec., 531 Fed. Appx.

719, 728 (6th Cir. 2013) (quoting SSR 96-5p) (“[T]o require the ALJ to base her

RFC finding on a physician’s opinion, ‘would, in effect, confer upon the treating

source the authority to make the determination or decision about whether an

individual is under a disability, and thus would be an abdication of the

Commissioner’s statutory responsibility to determine whether an individual is

disabled.’”). Further, the ALJ was not playing doctor by determining plaintiff’s

RFC, but instead, discharging his duties, as required by the regulations. 20 C.F.R.

§ 416.946(c); Coldiron v. Comm’r of Soc. Sec., 391 Fed. Appx. 435, 439 (6th Cir.

2010) (“An ALJ does not improperly assume the role of a medical expert by

weighing the medical and non-medical evidence before rendering an RFC

finding.”).

As for the ALJ rejecting the other medical opinions in the record, the

Commissioner argues that the ALJ’s RFC finding is consistent with Dr. Shaw’s

opinion that plaintiff could work eight hours a day, and was able to sit, stand,

walk, bend minimally, and lift at least five pounds without difficulty. (Tr. 23-24,

600). The ALJ also found that plaintiff was more limited than the state agency

medical consultant, as the ALJ limited plaintiff to a range of sedentary work while

Dr. Flores restricted her to light work (Tr. 23-24, 150), but it is unclear how that

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was harmful to Plaintiff. See Shinseki 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.”). With respect to Dr. Popoff’s opinion,

while the ALJ evaluated the doctor’s opinion, and concluded that it was entitled to

limited weight because it was a check-list opinion, which was not substantiated by

his treatment notes; the ALJ gave greater weight to the doctor’s treatment notes. 

(Tr. 26). Moreover, plaintiff failed to challenge the ALJ’s evaluation of Dr.

Popoff’s opinion, or demonstrate that the doctor’s opinion was supported by the

evidence in the record.

Plaintiff further maintains that the ALJ’s step-three and RFC findings are

contradicted by her hearing testimony and the evidence presented at the hearing.

The only evidence that plaintiff cites in support of her argument, however, is her

hearing testimony and the ALJ found that her subjective complaints were not

credible (Tr. 32), a finding that she has not challenged. Moreover, “[s]ubjective

claims of disabling pain must be supported by objective medical evidence in order

to serve as the basis of a finding of disability,” and here, no objective evidence has

been presented that supports plaintiff’s alleged limitations. McCoy on behalf of

McCoy v. Chater, 81 F.3d 44, 47 (6th Cir. 1995). Plaintiff adds that when

presented with hypotheticals based on the limitations described in her hearing

testimony the vocational expert testified that there were no jobs available. An

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ALJ, however, is not required to incorporate unsubstantiated allegations into his

hypothetical question. Stanley, 39 F.3d at 118; Casey, 987 F.2d at 1235. Here,

the Commissioner maintains that there is no evidence that corroborates the

limitations in the hypotheticals that plaintiff referenced and thus, the ALJ was not

required to adopt the vocational expert’s response.

III. DISCUSSION

A. Standard of Review 

In enacting the social security system, Congress created a two-tiered system

in which the administrative agency handles claims, and the judiciary merely

reviews the agency determination for exceeding statutory authority or for being

arbitrary and capricious. Sullivan v. Zebley, 493 U.S. 521 (1990). The

administrative process itself is multifaceted in that a state agency makes an initial

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

finally to the Appeals Council. Bowen v. Yuckert, 482 U.S. 137 (1987). If relief is

not found during this administrative review process, the claimant may file an

action in federal district court. Mullen v. Bowen, 800 F.2d 535, 537 (6th Cir.1986).

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

administrative decision pursuant to 42 U.S.C. § 405(g). Judicial review under this

statute is limited in that the court “must affirm the Commissioner’s conclusions

absent a determination that the Commissioner has failed to apply the correct legal

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standard or has made findings of fact unsupported by substantial evidence in the

record.” Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005);

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

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

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

McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Garner v. Heckler, 745 F.2d 383,

387 (6th Cir. 1984). “It is of course for the ALJ, and not the reviewing court, to

evaluate the credibility of witnesses, including that of the claimant.” Rogers v.

Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007); Jones v. Comm’r of Soc.

Sec., 336 F.3d 469, 475 (6th Cir. 2003) (an “ALJ is not required to accept a

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

when making a determination of disability.”); Cruse v. Comm’r of Soc. Sec., 502

F.3d 532, 542 (6th Cir. 2007) (the “ALJ’s credibility determinations about the

claimant are to be given great weight, particularly since the ALJ is charged with

observing the claimant’s demeanor and credibility.”) (quotation marks omitted);

Walters, 127 F.3d at 531 (“Discounting credibility to a certain degree is

appropriate where an ALJ finds contradictions among medical reports, claimant’s

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

credibility determinations based solely upon an ‘intangible or intuitive notion

about an individual’s credibility.’” Rogers, 486 F.3d at 247, quoting Soc. Sec.

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Rul. 96-7p, 1996 WL 374186, *4.

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

are conclusive. 42 U.S.C. § 405(g). Therefore, this Court may not reverse the

Commissioner’s decision merely because it disagrees or because “there exists in

the record substantial evidence to support a different conclusion.” McClanahan v.

Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006); Mullen v. Bowen, 800

F.2d 535, 545 (6th Cir. 1986) (en banc). Substantial evidence is “more than a

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

a reasonable mind might accept as adequate to support a conclusion.” Rogers, 486

F.3d at 241; Jones, 336 F.3d at 475. “The substantial evidence standard

presupposes that there is a ‘zone of choice’ within which the Commissioner may

proceed without interference from the courts.” Felisky v. Bowen, 35 F.3d 1027,

1035 (6th Cir. 1994) (citations omitted), citing, Mullen, 800 F.2d at 545. 

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

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

2001). When reviewing the Commissioner’s factual findings for substantial

evidence, a reviewing court must consider the evidence in the record as a whole,

including that evidence which might subtract from its weight. Wyatt v. Sec’y of

Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). “Both the court of

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

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whether it has been cited by the Appeals Council.” Heston v. Comm’r of Soc.

Sec., 245 F.3d 528, 535 (6th Cir. 2001). There is no requirement, however, that

either the ALJ or the reviewing court must discuss every piece of evidence in the

administrative record. Kornecky v. Comm’r of Soc. Sec., 167 Fed.Appx. 496, 508

(6th Cir. 2006) (“[a]n ALJ can consider all the evidence without directly

addressing in his written decision every piece of evidence submitted by a party.”)

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

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

B. Governing Law

The “[c]laimant bears the burden of proving his entitlement to benefits.” 

Boyes v. Sec’y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994);

accord, Bartyzel v. Comm’r of Soc. Sec., 74 Fed.Appx. 515, 524 (6th Cir. 2003). 

There are several benefits programs under the Act, including the Disability

Insurance Benefits Program (DIB) of Title II (42 U.S.C. §§ 401 et seq.) and the

Supplemental Security Income Program (SSI) of Title XVI (42 U.S.C. §§ 1381 et

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

disabled prior to the expiration of their insured status; Title XVI benefits are

available to poverty stricken adults and children who become disabled. F. Bloch,

Federal Disability Law and Practice § 1.1 (1984). While the two programs have

different eligibility requirements, “DIB and SSI are available only for those who

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

“Disability” means:

inability to engage in any substantial gainful activity by

reason of any medically determinable physical or mental

impairment which can be expected to result in death or

which has lasted or can be expected to last for a

continuous period of not less than 12 months.

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); see also 20 C.F.R. § 416.905(a)

(SSI).

The Commissioner’s regulations provide that disability is to be determined

through the application of a five-step sequential analysis:

Step One: If the claimant is currently engaged in

substantial gainful activity, benefits are denied without

further analysis.

Step Two: If the claimant does not have a severe

impairment or combination of impairments, that

“significantly limits ... physical or mental ability to do

basic work activities,” benefits are denied without

further analysis.

Step Three: If plaintiff is not performing substantial

gainful activity, has a severe impairment that is expected

to last for at least twelve months, and the severe

impairment meets or equals one of the impairments listed

in the regulations, the claimant is conclusively presumed

to be disabled regardless of age, education or work

experience.

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

past relevant work, benefits are denied without further

analysis.

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

or her past relevant work, if other work exists in the

national economy that plaintiff can perform, in view of

his or her age, education, and work experience, benefits

are denied.

Carpenter v. Comm’r of Soc. Sec., 2008 WL 4793424 (E.D. Mich. 2008), citing,

20 C.F.R. §§ 404.1520, 416.920; Heston, 245 F.3d at 534. “If the Commissioner

makes a dispositive finding at any point in the five-step process, the review

terminates.” Colvin, 475 F.3d at 730. 

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

and severity of limitations caused by her impairments and the fact that she is

precluded from performing her past relevant work.” Jones, 336 F.3d at 474, cited

with approval in Cruse, 502 F.3d at 540. If the analysis reaches the fifth step

without a finding that the claimant is not disabled, the burden transfers to the

Commissioner. Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006). 

At the fifth step, the Commissioner is required to show that “other jobs in

significant numbers exist in the national economy that [claimant] could perform

given [his] RFC and considering relevant vocational factors.” Rogers, 486 F.3d at

241; 20 C.F.R. §§ 416.920(a)(4)(v) and (g).

If the Commissioner’s decision is supported by substantial evidence, the

decision must be affirmed even if the court would have decided the matter

differently and even where substantial evidence supports the opposite conclusion. 

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McClanahan, 474 F.3d at 833; Mullen, 800 F.2d at 545. In other words, where

substantial evidence supports the ALJ’s decision, it must be upheld.

C. Analysis and Conclusions

1. Mental Impairment

At step two of the sequential evaluation the claimant bears the burden of

showing a severe impairment. Bowen v. Yuckert, 482 U.S. 137, 146 (1987). In

order to meet this burden, the claimant must demonstrate a medically determinable

impairment that significantly limits her physical or mental ability to do basic work

activities. Kilgore v. Colvin, 2014 WL 5594984, at *3 (E.D. Ky. 2014), citing 20

C.F.R. §§ 404, 1508, 404.1521. Plaintiff has the burden of proof to show not only

that she has a medically-determinable impairment, but that it is so severe that it

prevents her from engaging in her past relevant work or any other substantial

gainful activity that exists in the national economy. Cade v. Colvin, 2014 WL

5518149, at *6 (N.D. Ohio 2014). At step two, an ALJ must first evaluate the

claimant's “symptoms, signs, and laboratory findings” to determine whether the

claimant has a “medically determinable mental impairment(s).” Fiore v. Soc. Sec.

Comm’r, 2013 WL 6410375 (S.D. Ohio 2013), quoting Rabbers v.Soc. Sec.

Comm’r, 582 F.3d 647, 652-53 (6th Cir. 2009). The burden of establishing the

medically determinable impairment rests squarely on a claimant, given that the Act

provides that “[a]n individual shall not be considered to be under a disability

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unless he furnishes such medical and other evidence of the existence thereof as the

Secretary may require.” Bowen, 482 U.S. at 146. 

Plaintiff points to no medical evidence in this record to support her claim

that she suffers from a medically determinable mental impairment. This case is

quite similar to the circumstances presented in Kavalousky v. Colvin, 2013 WL

1910433 (N.D. Ohio 2013). In Kavalousky, the ALJ did not consider the

plaintiff’s alleged anxiety at any step of the sequential analysis. The court

affirmed the ALJ’s analysis because the plaintiff failed to carry his burden that his

anxiety was a medical determinable impairment. No physician had diagnosed

plaintiff with anxiety and he had never sought any treatment with a psychologist

or psychiatrist. Other than a prescription for Xanax, the record was devoid of any

other medical evidence to support the claimed anxiety. In addition, the plaintiff

had not alleged anxiety as a basis for disability. Thus, the court concluded that

plaintiff could not credibly claim that anxiety was a medically determinable

impairment. Id. at *7. In this case, plaintiff points to no medical records to

support her claim of a mental impairment, offers no diagnosis by an acceptable

medical source, and did not claim that she was disabled because of any mental

impairment.

Plaintiff argues that the ALJ should have had her examined by a mental

health professional based on her testimony at the hearing that she had anxiety and

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depression. However, the undersigned does not find this testimony to be a

compelling reason for the ALJ to have ordered a psychological or psychiatric

examination of plaintiff. While the ALJ does bear some obligation to develop the

record, in this case, plaintiff was regularly seeing a multitude of health care

practitioners and was represented by counsel at the hearing. Staten v. Astrue, 2011

WL 6950930, *8 (S.D. Ohio 2011). As the Commissioner points out, plaintiff’s

medical records evidence a stated lack of any unusual depression or anxiety.

Plaintiff’s testimony does not obviate her own obligation to establish that she had

a medically determinable impairment. Under these circumstances, the undersigned

finds no error in the ALJ’s decision. 

2. RFC/Narrative

The undersigned is not persuaded that the ALJ failed to observe the

requirements of SSR 96-8p, which requires that the RFC assessment to “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).” SSR 96-8p, 1996 WL 374184, at *7 (July 2,

1996). The ALJ must “explain how any material inconsistencies or ambiguities in

the evidence in the case record were considered and resolved,” discuss “why

reported symptom-related functional limitations and restrictions can or cannot

reasonably be accepted as consistent with the medical and other evidence,”

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“consider and address medical source opinions,” and “[i]f the RFC assessment

conflicts with an opinion from a medical source, ... explain why the opinion was

not adopted.” Id. Social Security Ruling (SSR) 96-8p defines RFC as:

an assessment of an individual’s ability to do sustained

work-related physical and mental activities in a work

setting on a regular and continuing basis. A ‘regular and

continuing basis’ means 8 hours a day, for 5 days a

week, or an equivalent work schedule. SSR 96-8p, 1996

LEXIS 5. When assessing the 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, 5 days a week, or an

equivalent schedule), and describe the maximum amount

of each work-related activity the individual can perform

on the evidence available in the record.

Kane v. Astrue, 2011 WL 3353866 (N.D. Ohio 2011). Where, as here, the ALJ

provided a narrative discussion of a claimant’s symptoms, their effect on the

claimant’s work, and how he reached those conclusions, the ALJ’s narrative

substantially complied with the requirements of SSR 96-8p. Waters v. Astrue,

2011 WL 3847421, *6 (E.D. Ky. 2011). In this case, the undersigned finds no

failure in the ALJ’s narrative or formulation of the RFC such that any remand is

necessary or appropriate.

3. Hypothetical Questions

Plaintiff complains that the ALJ failed to adopt the limitations posed in

certain hypothetical questions to the vocational expert. However, the ALJ did not

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find these limitations credible and is not required to adopt limitations that are not

found to be credible. Notably, as the Commissioner points out, plaintiff did not

challenge the ALJ’s credibility determination. In the view of the undersigned, the

ALJ’s RFC is well-supported by substantial evidence and that plaintiff’s credible

limitations were accommodated in both the RFC and the hypothetical question

posed to the vocational expert. The ALJ’s credibility analysis was thorough,

followed applicable law, and he specifically relied on substantial evidence in the

record to support each of his conclusions. Plaintiff’s argument that the ALJ erred

by not adopting her testimony wholesale is neither well-developed nor supported

by the record evidence. Plaintiff fails to explain how the ALJ’s RFC does not

accommodate her credible limitations, as found by the ALJ, which are fully

supported by substantial evidence in the record.

4. Medical Expert Opinions

Plaintiff first finds fault with the ALJ’s failure to adopt the limitations set

forth in the 2011 consulting examiner report. However, the ALJ’s RFC is more

restrictive than that set forth in this opinion. Thus, the undersigned fails to see

how this could be reversible error. 

Next, plaintiff claims the ALJ erred by not adopting Dr. Popoff’s

conclusions. However, Dr. Popoff’s treating records and opinion long pre-dated

the time period at issue in this case. Indeed, his opinions and records all predate

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the prior administrative decision in which plaintiff’s claim was rejected. 

Moreover, the ALJ explained in detail why Dr. Popoff’s opinions were not

supported by his own treatment records and the medical evidence as a whole. 

Thus, the undersigned finds no basis to disturb the ALJ’s treatment of Dr. Popoff’s

opinions. 

Moreover, the ALJ’s RFC finding is consistent with Dr. Shaw’s opinion that

plaintiff could work eight hours a day, and was able to sit, stand, walk, bend

minimally, and lift at least five pounds without difficulty. (Tr. 23-24, 600). Thus,

the undersigned concludes that the ALJ did not “make up” the RFC without

utilizing any medical opinions, as alleged by plaintiff

IV. RECOMMENDATION

For the reasons set forth above, the undersigned RECOMMENDS that

plaintiff’s motion for summary judgment be DENIED, that defendant’s motion for

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

AFFIRMED.

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

Recommendation, but are required to 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 and

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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

and Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of

Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to Local Rule

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

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,”

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

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), Local Rule 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.

Date: August 14, 2015 s/Michael Hluchaniuk

Michael Hluchaniuk

United States Magistrate Judge

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CERTIFICATE OF SERVICE

I certify that on August 14, 2015, I electronically filed the foregoing paper

with the Clerk of the Court using the ECF system, which will send electronic

notification to all counsel of record.

s/Tammy Hallwood 

Case Manager

(810) 341-7850

tammy_hallwood@mied.uscourts.gov

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