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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ARLENE WILSON, 

 Plaintiff, Case No. 14-cv-12677 

 Hon. Matthew F. Leitman 

v. 

COMMISSIONER OF SOCIAL 

SECURITY, 

 Defendant. 

_________________________________/ 

ORDER (1) SUSTAINING PLAINTIFF’S OBJECTION TO REPORT AND 

RECOMMENDATION (ECF #23); (2) GRANTING PLAINTIFF’S MOTION 

FOR SUMMARY JUDGMENT (ECF #19); (3) DENYING DEFENDANT’S 

MOTION FOR SUMMARY JUDGMENT (ECF #20); AND (4) 

REMANDING CASE FOR FURTHER PROCEEDINGS

 In this action, Plaintiff Arlene Wilson (“Wilson”) alleges that the Social 

Security Administration wrongly denied her application for Social Security 

Disability and Disability Insurance Benefits. After the parties filed cross-motions 

for summary judgment, the assigned Magistrate Judge issued a Report and 

Recommendation (the “R&R”) in which he recommended that the Court (1) grant 

summary judgment in favor of Defendant Commissioner of Social Security (the 

“Commissioner”), and (2) deny Wilson’s motion for summary judgment. (See

ECF #22.) Wilson filed a timely objection to the R&R (the “Objection”). (See 

ECF #23.) The Court has conducted a de novo review of the portions of the R&R 

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to which Wilson has objected. For the reasons stated below, the Court SUSTAINS

the Objection (ECF #23), GRANTS Wilson’s motion for summary judgment (ECF 

#19), DENIES the Commissioner’s motion for summary judgment (ECF #20), and 

REMANDS the matter to the Commissioner for further proceedings consistent 

with this Order. 

RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY

 In 1988, Wilson was involved in a car accident in which she fractured her 

coccyx and suffered multiple pelvic fractures. (See Admin. R. at 230, ECF #6-7 at 

75, Pg. ID 260.) Wilson alleges that she has experienced lower back pain since the 

accident. (See id.) On October 1, 2002, Wilson left her job as a life insurance 

sales agent due to her back pain. (See Admin. R. at 28, ECF #6-2 at 29, Pg. ID 

53.) Wilson has not worked since that date. (See id.) 

 On March 8, 2012, Wilson filed an application for a period of disability and 

Social Security disability insurance benefits. (See Admin. R. at 14, ECF #6-2 at 

15, Pg. ID 39.) Wilson also filed an application for supplemental security income 

on March 13, 2012. (See id.) In both applications, Wilson alleged that she has 

been disabled since October 1, 2002, due to the pain that resulted from her 1988 

car accident. (See id.) 

 The Social Security Administration initially denied Wilson’s claim on June 

1, 2012. (See id.) On June 26, 2012, Wilson then filed a written request for a 

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hearing before an Administrative Law Judge. (See id.) Wilson’s hearing was held 

on February 11, 2013, before Administrative Law Judge Andrew G. Sloss (the 

“ALJ”). (See Admin. R. at 24, ECF #6-2 at 25, Pg. ID 49.) At the hearing, Wilson 

testified that she has suffered from prolonged back pain that has impaired her 

ability to sit, stand, and walk. (See id. at 29-33, ECF #6-2 at 30-34, Pg. ID 54-58.) 

When Wilson was asked whether she could sit for long periods of time, she 

responded that she could not and that she had to elevate her feet above waist level 

or lie down to prevent her legs from falling asleep when sitting. (See id. at 32-33, 

ECF #6-2 at 33-34, Pg. ID 57-58.) 

 The ALJ also considered medical evidence from two physicians, Dr. Harold 

Nims and Dr. B.D. Choi. (See Admin. R. at 18-19, ECF #6-2 at 19-20, Pg. ID 43-

44.) Dr. Nims offered his assessment after examining Wilson. Dr. Nims 

concluded that Wilson’s 

chronic lower back and pelvic pain limits the function of 

her lower extremities. Her ability to walk and even sit is 

compromised by her problems with her coccyx primarily. 

She was able to perform her self-care skills and to 

accomplish light chores, though she does have to take her 

time. . . . She does seem capable of non-strenuous 

activities, which require a minimum of walking and 

standing. She also must continually change positions 

when sitting due to her pain from her coccyx. The 

claimant’s ability to perform work-related activities such 

as bending, stooping, lifting, walking, crawling, 

squatting, carrying and traveling as well as pushing and 

pulling heavy objects is moderately impaired . . . . 

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(Admin. R. at 234, ECF #6-7 at 79, Pg. ID 264; emphasis added.) 

Dr. Choi offered his opinion after reviewing Wilson’s medical records. (See

Admin. R. at 46-54, ECF #6-3 at 9-17, Pg. ID 72-80.) In contrast to Dr. Nims, Dr. 

Choi opined that Wilson could both sit and stand (with normal breaks) for a total of 

about six hours in an eight-hour work day. (See Admin. R. at 51, ECF #6-3 at 14, 

Pg. ID 77.) 

In addition, the ALJ heard testimony from a vocational expert (the “VE”) 

during the February 11, 2013 hearing. The ALJ asked the VE the following 

hypothetical question: 

Q: I would like to ask you a hypothetical question. I’d 

like you to assume a person of the claimant’s age 

and education and past work, who is able to 

perform light work, except that she can only 

occasionally climb, balance, stoop, crouch, kneel 

or crawl. Could such a person perform the 

claimant’s past work? 

A: Yes. 

(Admin. R. at 36, ECF #6-2 at 37, Pg. ID 61.) 

 On March 25, 2013, the ALJ issued a written decision in which he 

determined that Wilson was not disabled and was therefore not entitled to benefits 

(the “ALJ’s Decision”). (See Admin. R. at 20, ECF #6-2 at 21, Pg. ID 45.) The 

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ALJ followed a five-step analysis1 and made the following findings: (1) Wilson has 

not engaged in substantial gainful employment since her alleged disability onset 

date (October 1, 2002) (see id. at 16, ECF #6-2 at 17, Pg. ID 41); (2) Wilson did 

suffer from a severe impairment – degenerative disc disease (see id.); (3) Wilson’s 

impairment did not presumptively entitle her to disability benefits under the Act 

(see id. at 17, ECF #6-2 at 18, Pg. ID 42); (4) Wilson had the residual functional 

capacity (“RFC”)2

 to “perform light work as defined in [20 C.F.R. §§ 404.1567(b), 

416.967(b)] except occasional climbing, balancing, stooping, crouching, kneeling 

or crawling” (id.); and (5) Wilson was capable of performing past relevant work as 

a life insurance sales agent (see id. at 20, ECF #6-2 at 21, Pg. ID 45). The ALJ 

explained that in reaching his conclusion, he assigned “great weight” to the 

opinions of both Dr. Nims and Dr. Choi. (See id. at 19, ECF #6-2 at 20, Pg. ID 

44.) 

 On July 9, 2014, Wilson filed her Complaint in this Court challenging the 

ALJ’s Decision. (See ECF #1.) The parties later filed cross-motions for summary 

judgment. (See Pl.’s Mot. Summ. J., ECF #19; Def.’s Mot. Summ. J., ECF #20.) 

                                                            

1

 The Social Security Act’s five-step analysis is codified in two Federal 

Regulations at 20 C.F.R. §§ 404.1520, 416.920 and is provided in the R&R (see 

ECF #22 at 9-10, Pg. ID 450-51). 

2

 A claimant’s RFC is the “most [a claimant] can still do despite [her] limitations.” 

Combs v. Comm’r of Soc. Sec., 459 F.3d 650, 643 (6th Cir. 2006) (quoting 20 

C.F.R. § 404.1545(a)(1)). 

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The Magistrate Judge then issued the R&R in which he recommended that the 

Court grant the Commissioner’s motion for summary judgment and deny Wilson’s 

motion for summary judgment. (See ECF #22.) 

 On May 13, 2016, Wilson filed her Objection to the R&R. (See ECF #23.) 

Wilson has made only a single objection to the R&R. She argues that while the 

ALJ purported to assign “great weight” to Dr. Nims’ opinion, the ALJ’s RFC 

determination and the ALJ’s hypothetical question to the VE did not accurately 

reflect limitations and restrictions identified by Dr. Nims. More specifically, 

Wilson complains that even though Dr. Nims opined that she could do only 

“minim[al]” standing, the ALJ’s RFC found that she was capable of performing 

“light work” – which, by definition, typically includes “a good deal of walking and 

standing” under 20 C.F.R. §§ 404.1567(b). Likewise, Wilson complains that even 

though Dr. Nims opined that Wilson must continually change positions while 

sitting, “there was no mention of any limitation as to sitting in the RFC or the 

hypothetical question posed to the [Vocational Expert at the hearing before the 

ALJ].” (Objection at 4, ECF #23 at 4, Pg. ID 459.) 

Wilson asks the Court to remand this matter to the ALJ to reevaluate 

Wilson’s RFC and to reformulate the hypothetical question to the VE. (See id. at 

6, ECF #23 at 6, Pg. ID 461.) 

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GOVERNING LEGAL STANDARD

 When a party has objected to portions of a Magistrate Judge’s R&R, the 

Court reviews those portions de novo. See Fed. R. Civ. P. 72(b)(3); Lyons v. 

Comm’r Soc. Sec., 351 F. Supp. 2d 659, 661 (E.D. Mich. 2004). The Court has no 

duty to conduct an independent review of the portions of the R&R to which the 

parties did not object. See Thomas v. Arn, 474 U.S. 140, 149 (1985). 

In reviewing the disputed findings of the ALJ, the Court is limited to 

determining whether those findings are supported by substantial evidence and 

made pursuant to proper legal standards. See 42 U.S.C. § 405(g) (“The findings of 

the Commissioner of Social Security as to any fact, if supported by substantial 

evidence, shall be conclusive . . . .”) Substantial evidence is “more than a scintilla 

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

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

Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec’y of 

Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). “It is of course for the 

ALJ, and not the reviewing court, to evaluate the credibility of witnesses, including 

that of the claimant.” Rogers, 486 F.3d at 247. “[A] court is obligated to remand 

for further administrative proceedings if there are any unresolved essential factual 

issues.” Meehleder v. Comm’r of Soc. Sec., 2012 WL 3154968, at *2 (E.D. Mich. 

Aug. 2, 2012) (citing Newkirk v. Shalala, 25 F.3d 316, 318 (6th Cir. 1994)). 

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ANALYSIS

 The Court agrees with Wilson that a remand is appropriate so that the ALJ 

may either (1) modify the RFC and hypothetical question so that they accurately 

reflect the limitations on sitting and standing identified by Dr. Nims, or (2) explain 

why he chose not to include Dr. Nims’ sitting and standing limitations in the RFC 

and hypothetical question despite assigning “great weight” to Dr. Nims’ opinion. 

 The RFC and the hypothetical question to the VE serve related but distinct 

functions: 

[The] RFC is to be an “assessment of [the claimant’s] 

remaining capacity for work” once her limitations have 

been taken into account. 20 C.F.R. § 416.945. It is an 

assessment of what [the claimant] can and cannot do, not 

what she does and does not suffer from. The hypothetical 

question posed to a VE for purposes of determining 

whether [the claimant] can perform other work, on the 

other hand, should be a more complete assessment of [the 

claimant’s] physical and mental state and should include 

an accurate[ ] portray[al] [of her] individual physical and 

mental impairment[s]. Thus, while the RFC should focus 

on [the claimant’s] abilities or, in other words, what [the 

claimant] can and cannot do, the hypothetical question 

should focus on [the claimant’s] overall state including 

[the claimant’s] mental and physical maladies. 

Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002) (citations and 

quotations omitted). Importantly, both the RFC and the hypothetical question to 

the VE must accurately describe the claimant’s abilities and limitations. See 

Howard, 276 F.3d at 240; Varley v. Sec’y of Health & Human Servs., 820 F.2d 

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777, 779 (6th Cir.1987) (hypothetical question must accurately portray claimant's 

physical and mental impairments). 

 The Court cannot conclude that the RFC and the ALJ’s hypothetical 

question to the VE accurately reflected Wilson’s limitations and abilities. As noted 

above, Dr. Nims identified substantial limitations on Wilson’s ability to stand, and 

he opined that Wilson would have to change positions continually when sitting. 

And despite the fact that the ALJ assigned “great weight” to Dr. Nims’ opinion, the 

RFC and hypothetical question reflected neither of these limitations. 

 It is certainly possible, as the Commissioner argues, that the ALJ assigned 

more weight to the opinion of Dr. Choi than to the opinion of Dr. Nims and that the 

ALJ framed the RFC and hypothetical question based on Dr. Choi’s opinion. But 

the ALJ’s Decision does not make that clear, nor does it offer any reasoned 

analysis as to why the ALJ adopted Dr. Choi’s opinion over the conflicting opinion 

of Dr. Nims. And when there is a conflict in the record, “the adjudicator must [] 

explain how any material inconsistencies or ambiguities in the evidence in the case 

record were considered and resolved.” SSR 96-8P, 1996 WL 374184, at *7. 

 On this record, the Court concludes that the ALJ’s Decision is not supported 

by substantial evidence and that a remand to the ALJ is necessary. On remand, the 

ALJ shall either (1) reformulate the RFC and hypothetical question so that they 

reflect and/or account for the limitations on sitting and standing identified by Dr. 

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Nims, or (2) explain why he chose not to include those limitations in the RFC and 

hypothetical question even though he assigned “great weight” to Dr. Nims’ 

opinion. 

CONCLUSION

 For the reasons stated above, IT IS HEREBY ORDERED that: 

 Wilson’s Objection (ECF #23) is SUSTAINED; 

 Wilson’s motion for summary judgment (ECF #19) is GRANTED; and 

 The Commissioner’s motion for summary judgment (ECF #20) is DENIED.

IT IS FURTHER ORDERED that this matter is remanded to the 

Commissioner for further proceedings consistent with this Order. 

s/Matthew F. Leitman 

 MATTHEW F. LEITMAN 

 UNITED STATES DISTRICT JUDGE 

Dated: June 28, 2016 

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

and/or counsel of record on June 28, 2016, by electronic means and/or ordinary 

mail. 

 s/Holly A. Monda 

 Case Manager 

 (313) 234-5113 

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