1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

AMY L. DEMYERS, 

Plaintiff, CIVIL ACTION NO. 14-CV-13543 

vs. DISTRICT JUDGE GEORGE CARAM STEEH 

MAGISTRATE JUDGE MONA K. MAJZOUB 

COMMISSIONER OF 

SOCIAL SECURITY, 

Defendant. 

___________________________________________/ 

REPORT AND RECOMMENDATION 

Plaintiff Amy Demyers seeks judicial review of Defendant the Commissioner of Society 

Security’s determination that she is not entitled to Social Security benefits for her physical and 

mental impairments under 42 U.S.C. § 405(g). (Docket no. 1.) Before the Court are Plaintiff’s 

Motion for Summary Judgment (docket no. 13) and Defendant’s Motion for Summary Judgment 

(docket no. 14). The motions have been referred to the undersigned for a report and 

recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). (Docket no. 3.) The Court has reviewed 

the pleadings, dispenses with a hearing pursuant to E.D. Mich. L.R. 7.1(f)(2), and issues this 

Report and Recommendation. 

I. Recommendation 

The undersigned recommends that Plaintiff’s Motion for Summary Judgment [13] be 

DENIED and that Defendant’s Motion for Summary Judgment [14] be GRANTED. 

II. Procedural History 

Plaintiff filed applications for Disability Insurance Benefits and Supplemental Security 

2:14-cv-13543-GCS-MKM Doc # 15 Filed 12/21/15 Pg 1 of 10 Pg ID 378
2 

Income with protective filing dates of July 15, 2008, alleging that she had been disabled since July 

1, 1997, due to depression, bipolar disorder, and hepatitis C. (See TR 29, 31.) The Social 

Security Administration denied benefits. (See TR 29.) Plaintiff then requested a de novo

hearing, which was held on May 18, 2010, before Administrative Law Judge (ALJ) Ethel Revels, 

who subsequently found that Plaintiff was not entitled to benefits because she was capable of 

performing a significant number of jobs in the national economy. (TR 29-38.) The Appeals 

Council declined to review the ALJ’s decision, and Plaintiff commenced this action for judicial 

review. The parties then filed their instant Motions. 

III. Plaintiff’s Testimony, Medical Evidence, and Vocational Expert Testimony

Plaintiff (docket no. 13 at 10-2), Defendant (docket no. 14 at 5-16), and the ALJ (TR 

33-36) each set out a detailed factual recitation with regard to Plaintiff’s medical record, the 

vocational expert’s testimony, and Plaintiff’s hearing testimony. There are no material 

inconsistencies between these accounts; therefore, the undersigned will incorporate these factual 

recitations by reference. Nevertheless, the undersigned has conducted an independent review of 

Plaintiff’s medical record and the hearing transcript and will include comments and citations as 

necessary throughout this Report and Recommendation. 

IV. Administrative Law Judge’s Determination

 The ALJ found that Plaintiff met the insured status requirements of the Act through 

September 30, 1997; that she had not engaged in substantial gainful activity since July 1, 1997, her 

original alleged onset date; and that she suffered from severe bipolar disorder, major depression, 

and hepatitis C. (TR 31.) The ALJ then found that her impairments did not meet or equal those 

listed in the Listing of Impairments. (TR 31-33.) The ALJ found, however, that Plaintiff’s 

2:14-cv-13543-GCS-MKM Doc # 15 Filed 12/21/15 Pg 2 of 10 Pg ID 379
3 

allegations regarding the extent of her symptoms were not wholly credible and that Plaintiff could 

perform a full range of work at all exertional levels with the following nonexertional limitations: 

[D]ue to her mental impairments, claimant has moderate limitations in her ability to 

maintain concentration for extended periods and moderate limitations in ability to 

understand, remembers, and carry out detailed instructions, therefore, all work be 

(sic) simple repetitive tasks. The work must also be low stress i.e., no working 

with the general public; no work at a production pace. 

(TR 33-36.) The ALJ then determined, in reliance on the VE’s testimony, that Plaintiff was 

capable of performing a significant number of jobs in the national economy. (TR 37.) 

Therefore, the ALJ found that Plaintiff was not disabled under the Social Security Act from July 1, 

1997, through the date of her decision. (TR 29.) 

V. Law and Analysis 

A. Standard of Review

 Pursuant to 42 U.S.C. § 405(g), this Court has jurisdiction to review the Commissioner’s 

final decisions. Judicial review of the Commissioner’s decisions is limited to determining 

whether his findings are supported by substantial evidence and whether he employed the proper 

legal standards. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Walters v. Comm’r, 127 

F.3d 525, 528 (6th Cir. 1997). Substantial evidence is more than a scintilla but less than a 

preponderance; it is “‘such relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion.’” Richardson, 402 U.S. at 401 (quoting Consolidated Edison Co. v. NLRB, 

305 U.S. 197, 229 (1938)); Walters, 127 F.3d at 528. It is not the function of this Court to try 

cases de novo, resolve conflicts in the evidence, or decide questions of credibility. See Brainard 

v. Sec’y of Health and Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v. Heckler, 745 

F.2d 383, 387 (6th Cir. 1984). 

2:14-cv-13543-GCS-MKM Doc # 15 Filed 12/21/15 Pg 3 of 10 Pg ID 380
4 

 In determining the existence of substantial evidence, the court must examine the 

administrative record as a whole. See Kirk v. Sec’y of Health and Human Servs., 667 F.2d 524, 

536 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983). If the Commissioner’s decision is 

supported by substantial evidence, it must be affirmed, even if the reviewing court would decide 

the matter differently, Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983), and even if 

substantial evidence also supports the opposite conclusion. See Her v. Comm’r, 203 F.3d 388, 

389-90 (6th Cir. 1999); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc) (noting that 

the substantial evidence standard “presupposes that there is a zone of choice within which the 

decisionmakers can go either way, without interference by the courts”). 

B. Framework for Social Security Determinations

 Plaintiff’s Social Security disability determination was made in accordance with a 

five-step sequential analysis. In the first four steps, Plaintiff was required to show that: 

(1) Plaintiff was not presently engaged in substantial gainful employment; and 

(2) Plaintiff suffered from a severe impairment; and 

(3) the impairment met or was medically equal to a “listed impairment;” or 

(4) Plaintiff did not have the residual functional capacity (RFC) to perform 

relevant past work. 

See 20 C.F.R. § 404.1520(a)-(f). If Plaintiff’s impairments prevented Plaintiff from doing past 

work, the Commissioner, at step five, would consider Plaintiff’s RFC, age, education, and past 

work experience to determine if Plaintiff could perform other work. If not, Plaintiff would be 

deemed disabled. See id. at § 404.1520(g). The Commissioner has the burden of proof only on 

“the fifth step, proving that there is work available in the economy that the claimant can perform.” 

Her, 203 F.3d at 391. To meet this burden, the Commissioner must make a finding “supported by 

2:14-cv-13543-GCS-MKM Doc # 15 Filed 12/21/15 Pg 4 of 10 Pg ID 381
5 

substantial evidence that [the claimant] has the vocational qualifications to perform specific jobs.” 

Varley v. Sec’y of Health and Human Servs., 820 F.2d 777, 779 (6th Cir. 1987). This 

“substantial evidence” may be in the form of vocational expert testimony in response to a 

hypothetical question, “but only ‘if the question accurately portrays [the claimant’s] individual 

physical and mental impairments.’” Id. (citations omitted). 

C. Analysis

 The Social Security Act authorizes “two types of remand: (1) a post judgment remand in 

conjunction with a decision affirming, modifying, or reversing a decision of the [Commissioner] (a 

sentence-four remand); and (2) a pre-judgment remand for consideration of new and material 

evidence that for good cause was not previously presented to the [Commissioner] (a sentence-six 

remand).” Faucher v. Sec’y of Health and Human Servs., 17 F.3d 171, 174 (6th Cir. 1994) (citing 

42 U.S.C. § 405(g)). Under a sentence-four remand, the Court has the authority to “enter upon the 

pleadings and transcript of the record, a judgment affirming, denying, or reversing the decision of 

the [Commissioner], with or without remanding the cause for a hearing. 42 U.S.C. § 405(g). 

Where there is insufficient support for the ALJ’s findings, “the appropriate remedy is reversal and 

a sentence-four remand for further consideration.” Morgan v. Astrue, 10-207, 2011 WL 

2292305, at *8 (E.D.Ky. June 8, 2011) (citing Faucher, 17 F.3d at 174). Plaintiff argues that this 

matter should be reversed or, in the alternative, remanded because (1) the ALJ failed to properly 

evaluate Plaitniff’s mental RFC under SSR 96-8p; and (2) the ALJ failed to give proper weight to 

the opinions of Plaintiff’s treating physician, Dr. Soverinsky. (Docket no. 13 at 14-19.) 

1. The ALJ’s Mental RFC Assessment 

Plaintiff asserts that with regard to her mental RFC, the ALJ failed to address her “ability to 

2:14-cv-13543-GCS-MKM Doc # 15 Filed 12/21/15 Pg 5 of 10 Pg ID 382
6 

understand, carry out, and remember instructions; use judgment in making work-related decisions; 

respond appropriately to supervision, co-workers and work situations; and deal with changes in a 

routine work setting.” (Docket no. 13 at 16.) Plaintiff contends that this failure is a violation of 

SSR 96-8p, which requires that a claimant’s mental limitations “must be expressed in terms of 

work-related functions;” SSR 96-8p further notes that “work-related mental activities generally 

required by competitive, remunerative work include [the abilities noted above].” Nevertheless, 

“[a]lthough a function-by-function analysis is desirable, SSR 96-8p does not require ALJs to 

produce such a detailed statement in writing.” Delgado v. Comm’r of Soc Sec., F.App’x 542, 

547-48 (6th Cir. 2002) (quoting Bencivengo c. Comm’r of Soc. Sec., No. 00-1995, 251 F.3d 153 

(Table) (3d Cir. Dec. 19, 2000)). Moreover, an ALJ is not required to include in a plaintiff’s RFC 

those limitations that he does not find credible. See Casey v. Sec’y of Health and Human Servs., 

987 F.2d 1230, 1235 (6th Cir. 1993) 

Here, the ALJ included in his RFC those limitations that he found credible: (1) moderate 

limitations in her ability to maintain concentration for extended periods; (2) moderate limitations 

in ability to understand, remember, and carry out details instructions; and (3) work must also be 

low stress with no working with the general public and no work at a production pace. (TR 33.) 

The ALJ found that Plaintiff’s allegations of further limitations were not credible. Thus, the ALJ 

did not err in failing to specifically discuss those limitations that did not apply to Plaintiff. 

Therefore, Plaintiff’s Motion should be denied with regard to this issue. 

2. The ALJ’s Review of Dr. Soverinsky’s Opinion 

The ALJ must give a treating physician’s opinion complete deference if it is supported by 

clinical and laboratory diagnostic evidence and it is not inconsistent with the other substantial 

2:14-cv-13543-GCS-MKM Doc # 15 Filed 12/21/15 Pg 6 of 10 Pg ID 383
7 

evidence in the record. 20 C.F.R. § 404.1527(c)(2). But it is equally well settled that the 

ultimate issue of disability is reserved to the Commissioner and not the treating or examining 

physician. Kidd v. Comm’r, 283 Fed. Appx. 336, 341 (6th Cir. 2008). Thus, when a medical or 

non-medical source offers an opinion on “an issue reserved to the Commissioner, such as whether 

the claimant is disabled, the ALJ need not accord that opinion controlling weight.” Id. (citing 

Bass v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007)). The opinion of an examining source is 

generally accorded more weight than is the opinion of a source who did not examine the claimant. 

20 C.F.R. § 404.1527(c)(1). The opinion of a state agency medical or psychological consultant is 

reviewed in the same manner as is the opinion of a nonexamining physician or psychologist. 20 

C.F.R. §404.1527(e). 

Additionally, the Commissioner requires its ALJs to “always give good reasons in [their] 

notice of determination or decision for the weight [they] give [a] treating source’s opinion.” 20 

C.F.R. § 404.1527(c)(2). Those good reasons must be “supported by the evidence in the case 

record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the 

adjudicator gave to the treating source’s medical opinion and the reasons for that weight.” Wilson 

v. Comm’r, 378 F.3d 541, 544 (6th Cir. 2004) (citing Social Security Ruling (SSR) 96-2p, 1996 

WL 374188, at *5 (1996)). If the opinion of a treating source is not afforded controlling weight, 

an ALJ must apply certain factors in determining what weight to give the opinion, including the 

length of the treatment relationship and the frequency of examination, the nature and extent of the 

treatment relationship, supportability of the opinion, consistency of the opinion with the record as 

a whole, and the specialization of the treating source. Wilson, 378 F.3d at 544 (citation omitted). 

Even then, a finding that a treating-source medical opinion is not well supported by medically 

2:14-cv-13543-GCS-MKM Doc # 15 Filed 12/21/15 Pg 7 of 10 Pg ID 384
8 

acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other 

substantial evidence in the case record means only that the opinion is not entitled to controlling 

weight, not that the opinion should be rejected. Social Security Ruling (SSR) 96-2p, 1996 WL 

374188, at *4. Notably, though, “it is not the Court’s job to conduct a de novo review of the 

evidence or to rubber stamp the ALJ’s decision. The Court must ensure both that the ALJ applied 

the correct legal standard and that his decision is supported by substantial evidence. See 

Christephore v. Commissioner of Social Sec., No. 11-13547, 2012 WL 2274328, *6 (E.D. Mich. 

June 18, 2012) (Roberts, J.) 

Nevertheless, the Sixth Circuit has upheld the decision of an ALJ which gave less than 

controlling weight to a treating physician without specifically analyzing the factors set forth in 20 

C.F.R. § 404.1527(c) where the ALJ provided “good reason” for the decision. See Infantado v. 

Astrue, 263 Fed.Appx. 469, 473-74 (6th Cir. 2008). There is no per se rule that requires an 

articulation of each of the six regulatory factors listed in 20 C.F.R. § 404.1527(c)(2)-(6). Norris 

v. Comm’r, No. 11-11974, 2012 WL 3584664, at *5 (E.D. Mich. Aug. 20, 2012) (citing Tilley v. 

Comm’r, 394 Fed. Appx. 216, 222 (6th Cir. 2010)). Moreover, an ALJ’s failure to discuss the 

factors of § 1527(c)(2)-(6) may constitute harmless error (1) if “a treating source’s opinion is so 

patently deficient that the Commissioner could not possibly credit it;” (2) “if the Commissioner 

adopts the opinion of the treating source or makes findings consistent with the opinion;” or (3) 

“where the Commissioner has met the goal of [Section 1527(c)]—the provision of the procedural 

safeguard of reasons—even though she has not complied with the terms of the regulation.” 

Nelson v. Comm’r, 195 Fed. Appx. 462, 470 (6th Cir. 2006) (citing Wilson v. Comm’r, 378 F.3d 

541, 547 (6th Cir. 2004)). 

2:14-cv-13543-GCS-MKM Doc # 15 Filed 12/21/15 Pg 8 of 10 Pg ID 385
9 

Here, while acknowledging that Dr. Soverinsky was Plaintiff’s treating physician, the ALJ 

gave the doctor’s opinion “little weight.” (TR 35.) Plaintiff contends that the ALJ erred in 

failing to give greater weight to Dr. Soverinsky’s opinion. (Docket no. 13 at 18-19.) But 

Plaintiff does not develop this argument, instead primarily arguing that the ALJ’s decision failed to 

provide a sufficient analysis with regard to her decision. (Id.) 

The ALJ discussed Dr. Soverinsky’s opinion as follows: 

In a letter dated January 26, 2009, Dr. Soverinsky, opines, that claimant is disabled 

from all work allegedly because her “condition” of recurrent depression and 

polysubstance dependence, makes her alleged impairment chronic and causes 

sporadic exacerbations. Dr. Soverinsky fails to support this opinion with any 

medical evidence separating the depression from the polysubstance abuse nor that 

the depression is a contributing factor to the substance abuse. There is no 

indication in the medical evidence of record to support that claimant has had 

depressive episodes more than on (1) or two (2) times a year. However the record 

does not show that the depression itself lasts from one to three months. Since the 

alleged onset date claimant has been in substance abuse treatment facilities of 

which two lasted for three months. The undersigned assigns “little” weight to the 

medical opinion of Dr. Soverinsky, the treating physician. 

(TR 35.) Notably, the ALJ did not err in assigning controlling weight to Dr. Soverinsky’s opinion 

where the opinion made a determination of disability, which is an issue reserved for the 

commissioner. Moreover, though, while the ALJ did not specifically discuss the § 1527(c) 

factors, her determination is supported by substantial evidence and is sufficiently specific to make 

clear to Plaintiff and the Court the weight given to Dr. Soverinsky’s opinion and the reasons for her 

decision. Plaintiff’s Motion should be denied. 

VI. Conclusion 

For the reasons discussed above, Plaintiff’s Motion for Summary Judgment [13] should be 

DENIED and Defendant’s Motion for Summary Judgment [14] should be GRANTED. 

2:14-cv-13543-GCS-MKM Doc # 15 Filed 12/21/15 Pg 9 of 10 Pg ID 386
10 

REVIEW OF REPORT AND RECOMMENDATION 

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

Recommendation, but must act within fourteen (14) days of service of a copy hereof as provided 

for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections 

constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard 

v. Sec’y of Health and Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 

F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but fail to raise others with 

specificity will not preserve all objections that 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 Rule 72.1(d)(2) of the Local Rules of the United States District Court for the Eastern 

District of Michigan, a copy of any objection must be served upon this Magistrate Judge. 

Within fourteen (14) days of service of any objecting party’s timely filed objections, the 

opposing party may file a response. The response shall be not more than five (5) pages in length 

unless by motion and order such page limit is extended by the Court. The response shall address 

specifically, and in the same order raised, each issue contained within the objections. 

Dated: December 21 2015 s/ Mona K. Majzoub 

 MONA K. MAJZOUB 

UNITED STATES MAGISTRATE JUDGE 

PROOF OF SERVICE 

I hereby certify that a copy of this Report and Recommendation was served on counsel of 

record on this date. 

Dated: December 21, 2015 s/ Lisa C. Bartlett 

Case Manager 

2:14-cv-13543-GCS-MKM Doc # 15 Filed 12/21/15 Pg 10 of 10 Pg ID 387