UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DEBORAH OWENS,

Case No. 14-14109

Plaintiff,

Paul D. Borman

v. United States District Judge

COMMISSIONER OF Mona K. Majzoub

SOCIAL SECURITY, United States Magistrate Judge

Defendant.

_____________________________/

OPINION AND ORDER 

(1) DENYING PLAINTIFF’S OBJECTIONS (ECF NO. 20); 

(2) ADOPTING THE MAGISTRATE JUDGE’S 

REPORT AND RECOMMENDATION (ECF NO. 19); 

(3) DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 15); 

(4) GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (ECF NO.

18); AND (5) DISMISSING THE CASE

On March 8, 2016, Magistrate Judge Mona K. Majzoub issued a Report and

Recommendation addressing the outstanding motions in this action. (ECF No. 19). In the

Report and Recommendation, the Magistrate Judge recommends that this Court deny

Plaintiff Deborah Owens’ Motion for Summary Judgment (ECF No. 15) and grant

Defendant Commissioner of Social Security’s Motion for Summary Judgment (ECF No.

18). 

Now before the Court is Plaintiff’s Objections to the Magistrate Judge’s Report

and Recommendation. (ECF No. 20, Objections.) Defendant filed a response. (ECF No.

21.) Having conducted a de novo review of the parts of the Magistrate Judge’s Report

and Recommendation to which objections have been filed pursuant to 28 U.S.C. §

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636(b)(1), the Court will deny Plaintiff’s Objections, adopt the Magistrate Judge’s Report

and Recommendation, deny Plaintiff’s motion for summary judgment, and grant the

Defendant’s motion for summary judgment. 

I. BACKGROUND

The Administrative Law Judge’s (“ALJ”) findings and the pertinent portions of the

Administrative Record are accurately and adequately set forth in the ALJ’s decision and

Defendant’s motion for summary judgment. While Plaintiff did not set forth her medical

history in her motion for summary judgment or objections, she did note the relevant portions

throughout her analysis. The Magistrate Judge held, and the Court agrees, that there are no

material factual inconsistencies with these accounts and the Court incorporates those factual

recitations here. (ECF No. 19, Report and Recommendation at *2-3; ECF No. 18, at *5-11;

Tr. 670-73.) 

Briefly, Plaintiff filed applications for Supplemental Security Income and Disability

Insurance benefits with protective filing dates of February 12, 2012 and alleged disability

onset date of August 20, 2010 due to bone pain, headaches, affective disorder, and anxiety

disorder. (Tr. 667-68.) Plaintiff’s applications were denied and she requested a hearing

before an ALJ. (Tr. 665-74.) The hearing was held on March 26, 2013, before ALJ Kathleen

H. Eiler; Plaintiff was not represented by counsel at the hearing, and a Vocational Expert

(“VE”) testified at the hearing. (Tr. 678-706.) 

On May 31, 2013, the ALJ issued a written decision finding that Plaintiff was not

disabled. (Tr. 665-74.) The ALJ concluded in her decision that Plaintiff suffered from the

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severe impairments of hungry bone syndrome, status-post thyroidectomy, headaches,

affective disorder, and anxiety disorder. (Tr. 668.) The ALJ then determined that the

Plaintiff did not have an impairment or combination of impairments that met or medically

equalled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P,

Appendix 1. (Tr. 668-69.) 

Plaintiff was born on July 25, 1972 and was 38 years old at the alleged disability onset

date. (Tr. 672.) Plaintiff had at least a high school education and had previously done

unskilled work as a cleaner. (Tr. 672-73.) Plaintiff alleged that she began suffering from

fatigue and headaches in August 2010 and was eventually diagnosed with a parathyroid

disorder and had those glands removed in May 2012. (Tr. 670, 861, 864-69.) Plaintiff

claimed that she then suffered from hypocalcaemia, an anxiety disorder, panic attacks,

chronic depression, migraines and pain “24/7” that did not abate with medications. (Tr. 670,

683-84, 691-92.) Plaintiff lived with her son and two daughters, ages 20, 17, and 10. (Tr.

691.) Plaintiff testified that she was able to cook dinner, do dishes, vacuum, grocery shop,

drive, and attend her children’s parent teacher conferences. She further testified that she had

difficulty sleeping, but enjoyed spending time on her computer. (Tr. 691-92.) 

The ALJ determined that the Plaintiff had the residual functioning capacity (“RFC”)

to perform:

light work as defined in 20 CFR 404.1567(b and 416967(b) except she can

never climb ladders/ropes/scaffolds but can occasionally climb ramps/stairs,

balance, stoop, crouch, kneel, or crawl. She must avoid concentrated exposure

to vibration and to workplace hazards. She can perform simple, routine,

repetitive tasks with minimal changes in a routine work setting and no

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production rate pace work. She can occasionally interact with supervisors,

coworkers, and the general public.

(Tr. 669.) The ALJ concluded that Plaintiff’s allegations regarding the extent of her

symptoms were not completely credible given the lack of any medical evidence or opinions

indicating Plaintiff had limitations greater than those reflected in the RFC, inconsistencies

in Plaintiff’s allegations regarding her symptoms, as well as daily activities that were “not

limited to the extent one would expect.” (Tr. 671-72.)

The ALJ determined that Plaintiff could not perform her past work. The ALJ then

concluded, based upon Plaintiff’s age, education, work experience, and residual functional

capacity, and relying upon the testimony of the VE, that Plaintiff was capable of performing

the representative occupations such as mail clerk and night cleaner which existed in

significant numbers in the national economy. (Tr. 673-74.) Accordingly, the ALJ

concluded that Plaintiff was not disabled. (Tr. 674.)

Plaintiff appealed the ALJ’s decision. On August 25, 2014, the Appeals Council

denied her request for review, and the ALJ’s decision became the agency’s final decision. 

(Tr. 1-7.) Thereafter, Plaintiff timely filed this federal action seeking judicial review of the

Defendant’s decision. (ECF No. 1.) Plaintiff filed a Motion for Summary Judgment

requesting the Court reverse the decision of the Defendant and remand for further hearings

or, in the alternative, remand for an award of full benefits pursuant to Sentence Four of 42

U.S.C. § 405(g). (ECF No. 15.) Plaintiff argued that the ALJ had violated her due process

rights and the ALJ’s credibility determination was not supported by substantial evidence. 

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Defendant also filed a Motion for Summary Judgment. (ECF No. 18.) 

 On March 8, 2016, the Magistrate Judge issued a Report and Recommendation which

recommended denying Plaintiff’s motion summary judgment and granting Defendant’s

motion for summary judgment. (ECF No. 19.) Thereafter, Plaintiff filed her Objections to

the Report and Recommendation and Defendant filed a response. (ECF Nos. 20, 21.) 

II. STANDARD OF REVIEW

Where a party has objected to portions of a Magistrate Judge’s Report and

Recommendation, the Court conducts a de novo review of those portions. FED. R. CIV. P.

72(b); Lyons v. Comm’r of Soc. Sec., 351 F. Supp. 2d 659, 661 (E.D. Mich. 2004). In

reviewing the 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

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (citing 42 U.S.C. §

405(h)); see also Cutlip v. Sec’t of Health and Human Servs., 25 F.3d 284, 286 (1994)

(“Judicial review of the Secretary’s decisions is limited to determining whether the

Secretary’s findings are supported by substantial evidence and whether the Secretary

employed the proper legal standards.”). 

Substantial evidence is “‘such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.’” Kyle v. Comm’r of Soc. Sec., 609 F.3d 847, 854 (6th

Cir. 2010) (quoting Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601, 604 (6th Cir. 2009)); see

also McGlothin v. Comm’r of Soc. Sec., 299 F. App’x 516, 522 (6th Cir. 2008) (recognizing

that substantial evidence is “more than a scintilla of evidence but less than a preponderance;

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it is such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.”) (internal quotations omitted). “If the Commissioner’s decision is supported by

substantial evidence, we must defer to that decision, ‘even if there is substantial evidence in

the record that would have supported an opposite conclusion.’” Colvin v. Barnhart, 475 F.3d

727, 730 (6th Cir. 2007) (quoting Longworth v. Comm’r of Soc. Sec. Admin., 402 F.3d 591,

595 (6th Cir. 2005)). 

As to the second inquiry – whether proper legal criteria were followed – a decision

of the Commission supported by substantial evidence will not be upheld “where the SSA

fails to follow its own regulations and where that error prejudices a claimant on the merits

or deprives the claimant of a substantial right.” Bowen v. Comm’r of Soc. Sec., 478 F.3d 742,

746 (6th Cir. 2007) (citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-47 (6th Cir.

2004)).

This Court does not “try the case de novo, nor resolve conflicts in the evidence, nor

decide questions of credibility.” Cutlip, 25 F.3d at 286. Indeed, “[i]t 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; see Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 542

(6th Cir. 2007) (providing that 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.”) (citation omitted)).

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III. ANALYSIS

A. Objection 1

Plaintiff argues that the Magistrate Judge erred in evaluating Plaintiff’s claim that

her due process rights were violated by the ALJ’s acquisition of additional evidence after

the hearing. Plaintiff argues pursuant to the Social Security Administration Hearings,

Appeals and Litigation Law Manual (“HALLEX”) I-2-7-1, the ALJ was required to give

Plaintiff the opportunity to examine any additional evidence received after the hearing to

allow the Plaintiff to comment on, object to, or refute the evidence by submitting other

evidence, request a supplemental hearing, or cross-examine the author of the evidence. 

See HALLEX I-2-7-1. Plaintiff contends that the Magistrate Judge erred by finding

Plaintiff failed to show prejudice from the violation of HALLEX I-2-7-1. Plaintiff notes

that the Magistrate Judge “was not swayed by the fact” that the ALJ represented that she

would request evidence from three sources but did not explain where or from what was

ever received. Plaintiff further claims the Magistrate Judge erred in failing to give

consideration to the fact that Plaintiff was not represented by counsel during her hearing.

Plaintiff’s arguments are without merit. The Magistrate Judge accurately noted

that HALLEX regulations are not binding authority on this Court and merely provide

“guiding principles, procedural guidance and information to adjudicators and staff of the

Office of Hearings and Appeals.” Bowie v. Comm’r of Soc. Sec., 539 F.3d 395, 397 (6th

Cir. 2008). Further, some courts in this district have granted relief for violations of

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HALLEX, but only “where the plaintiff demonstrates prejudice from the failure to follow

procedures.” (ECF No. 19, at *7, quoting Adams v. Comm’r of Soc. Sec., No. 4:13-cv-22,

2014 WL 3368692, at * 8 (E.D. Tenn. Jul. 9, 2014) (emphasis in Adams)). The

Magistrate Judge correctly deduced from the record, and Plaintiff does not challenge, that

the ALJ received only one additional record item after the hearing: Exhibit 8F regarding

the Plaintiff’s March 16, 2013 visit to Med Express. Plaintiff alerted the ALJ to her

March 16, 2013 visit to Med Express during the hearing and was generally aware of the

contents of Exhibit 8F. (Tr. 689, noting she thought she had a pinched nerve but was

diagnosed with a muscle spasm due to dropping calcium.) Critically, the ALJ did not

materially rely upon that record in her decision. Thus, regardless of whether Plaintiff was

represented by counsel at the hearing, Plaintiff has still not identified any prejudice

flowing from the ALJ’s failure to follow HALLEX I-2-7-1. Plaintiff’s objection is

denied. 

B. Objection 2

Plaintiff next objects to the Magistrate Judge’s conclusion that there was

substantial evidence to support the ALJ’s credibility assessment of Plaintiff. Plaintiff

argues that the inconsistencies that the ALJ relied upon in finding her credibility was

lacking were “manufactured and false.” (ECF No. 20, at *3.) Plaintiff further contends

that the ALJ selectively relied upon medical records that predated her diagnosis to

discredit her claims of chronic pain. 

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It is well settled that it is within the province of the ALJ to make credibility

assessments, not the Court. Siterlet v. Sec’y of Health and Human Serv., 823 F.2d 918,

920 (6th Cir. 1987) (“A reviewing court may not try the case de novo, nor resolve

conflicts in the evidence nor decide questions of credibility.”); Cruse v. Comm’r of Soc.

Sec., 502 F.3d 532, 542 (6th Cir. 2007) (holding “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.’” (citation omitted)). Accordingly, an

ALJ’s credibility determination will only be disturbed for a “compelling reason.” See

Sims v. Comm’r of Soc. Sec., 09-5773, 2011 WL 180789, at *4 (6th Cir. Jan. 19, 2011)

(citing Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001)). In the present case, the Court

finds no compelling reason to disturb the ALJ’s credibility determination. 

While it is true that many of Plaintiff’s more recent medical records indicate

complaints of chronic pain, many of those records only indicate moderate pain. (See

PGID 862, 933, 953, 964.) More significantly, however, the Court finds that the ALJ’s

credibility determination was not based solely upon the claims of chronic pain or lack

thereof. The ALJ also found a number of inconsistencies in Plaintiff’s complaints

regarding her allegations of back pain and her loss of vision in one eye and the lack of

any medical record documenting those issues. The ALJ further noted that Plaintiff’s

activities of daily living did not correspond to her complaints of pain and found that her

medications were “relatively effective in controlling the claimant’s symptoms.” (Tr.

672.) The ALJ observed that her “gait/station, strength, and reflexes” were normal during

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evaluation and she was “repeatedly observed to be oriented to time/place/person, and

showing no depression, anxiety, or agitation.” (Tr. 671.) The ALJ further concluded that 

[g]iven the claimant’s allegations of totally disabling symptom, one might

expect to see some indication in the treatment records of restrictions placed

on the claimant by the treating doctor. Yet a review of the record in this

case reveals no restrictions recommended by the treating doctor. 

Consequently, the claimant’s allegations are not credible to the extent they

are inconsistent with the above residual functional capacity assessment.

(Tr. 672.); see Rhodes v. Colvin, No. 14-13716, 2015 WL 6509151, at *5 (E.D. Mich.,

Oct. 7, 2015), report and recommendation adopted by 2015 WL 6796594 (E.D. Mich.

Nov. 6, 2015) (concluding that where a claimant testified as to certain functional

limitations but there was no medical record supporting those claim “the lack of physical

restriction from a physician is considered substantial evidence supporting the ALJ’s

determination that [the claimant] is not as limited as he claims.”) Given the number of

inconsistencies and reasons cited by the ALJ, the Court finds that even assuming

arguendo that the ALJ improperly relied upon Plaintiff’s earlier medical record, Plaintiff

cannot show any harm stemming from the ALJ’s reliance when this was not the sole

reason for the credibility determination. Ulman v. Comm’r of Soc. Sec., 693 F.3d 709,

714 (6th Cir. 2012) (adopting a harmless error analysis for credibility determinations). 

Plaintiff also claims that the “Magistrate Judge’s final and most obvious error”

regarding the ALJ’s credibility determination was her conclusion that the Plaintiff failed

to identify any additional restrictions based upon the evidence in the record. (See ECF

No. 20, at *7.) Plaintiff argues that her failure to identify any restrictions beyond those

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provided in the ALJ’s residual functional capacity assessment was due to the fact she was

unrepresented and unfamiliar with the hearing process. (Id. at *7-8.) This argument is

without merit. Plaintiff is currently represented in the present action, and Plaintiff has

failed to identify any evidence to support additional restrictions beyond her subjective

complaints in her motion for summary judgment or in her objections. The Magistrate

Judge’s observation in this regard was correct and relevant and was not directed at any

alleged deficiencies at the hearing. (ECF No. 19, at *11.) 

In summary, Plaintiff contends that evidence in the record could support a her

subjective complaints of pain and disability. Yet, “[i]f the Commissioner’s decision is

supported by substantial evidence, we must defer to that decision, ‘even if there is

substantial evidence in the record that would have supported an opposite conclusion.’” 

Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007) (citation omitted). In the present

case, the ALJ set forth a detailed examination of the medical evidence and testimony

regarding both Plaintiff’s disabilities and her daily activities that were inconsistent with

Plaintiff’s claims regarding the severity of pain and other symptoms. The Court does not

diminish Plaintiff’s hardships, however,

[t]he substantial-evidence standard .... presupposes that there is a zone of

choice within which the decisionmakers can go either way, without

interference by the courts. Therefore, 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 (6th Cir. 2009) (internal citations

omitted). Here, there is substantial evidence to support the ALJ’s decision and thus the

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Court must defer to the ALJ’s decision. Accordingly, Plaintiff’s objection regarding the

her credibility assessment is denied.

IV. CONCLUSION

For all these reasons, the Court DENIES Plaintiff’s Objections (ECF No. 20),

ADOPTS the Report and Recommendation (ECF No. 19), DENIES Plaintiff’s Motion for

Summary Judgement (ECF No. 15), GRANTS Defendant Commissioner’s Motion for

Summary Judgment (ECF No. 18) and DISMISSES this action with prejudice.

IT IS SO ORDERED.

s/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: July 27, 2016

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing order was served upon each

attorney or party of record herein by electronic means or first class U.S. mail on July 27,

2016.

s/Deborah Tofil 

Case Manager

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