UNITED STATES DISTRICT COURT

EASTERN DISTICT OF MICHIGAN

SOUTHERN DIVISION

ROBIN MAGEE,

Plaintiff, Civil Action No. 14-13587

 Honorable Sean F. Cox

v. Magistrate Judge Elizabeth A. Stafford

 

CAROLYN W. COLVIN, 

Acting Commissioner of 

Social Security,

 

Defendant. 

_____________________________/

REPORT AND RECOMMENDATION ON CROSSMOTIONS FOR SUMMARY JUDGMENT [R. 20, 21]

Plaintiff Robin Magee appeals a final decision of Defendant 

Commissioner of Social Security (“Commissioner”) denying her application 

for Supplemental Security Income (“SSI”) under the Social Security Act (the 

“Act”). Both parties have filed summary judgment motions [R. 20; R. 21], 

which were referred to this Court for a Report and Recommendation 

pursuant to 28 U.S.C. § 636(b)(1)(B). After review of the record, the Court 

finds that the administrative law judge’s (“ALJ”) decision is supported by 

substantial evidence, and thus RECOMMENDS that:

• the Commissioner’s motion [R. 21] be GRANTED;

• Magee’s motion [R. 20] be DENIED; and

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• the Commissioner’s decision be AFFIRMED pursuant to 

sentence four of 42 U.S.C. § 405(g).

I. BACKGROUND 

A. Magee’s Background and Claimed Disabilities

At the time of the administrative hearing, Magee was a 50-year-old 

high school graduate with two associate’s degrees who previously worked 

as a blinds salesperson. [R. 15-6, Tr. 120]. She has not worked since 

October 2010. [Id., Tr. 114]. Magee alleges disability based on bipolar 

disorder, Charcot-Marie-Tooth disease1 (“CMT”), scoliosis, high blood 

pressure, hypertension, and a stroke. [Id.].

B. Procedural History

Magee filed her application for SSI in August 2011, alleging disability 

beginning June 1, 2010. [R. 15-5, Tr. 96-102]. Her claim was denied 

initially, and she filed a timely request for an administrative hearing. [R. 15-

4, Tr. 73-75]. Magee and a vocational expert (“VE”) testified at a hearing 

before an ALJ on January 7, 2013, after which the ALJ issued a written 

 

1 CMT is a neurological disorder that affects both motor and sensory 

nerves. “A typical feature [of CMT] includes weakness of the foot and 

lower leg muscles, which may result in foot drop and a high-stepped gait 

with frequent tripping or falls.” 

http://www.ninds.nih.gov/disorders/charcot_marie_tooth/detail_charcot_mar

ie_tooth.htm 

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decision finding Magee not disabled. [R. 15-2, Tr. 10-25, 26-53]. The 

Appeals Council denied review, making the ALJ’s decision the final 

decision of the Commissioner for purposes of this review. [Id., Tr. 1-4]. 

Magee subsequently filed for judicial review. [R. 1].

C. The ALJ’s Application of the Disability Framework

A “disability” is the “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).

The Commissioner determines whether an applicant is disabled by 

analyzing five sequential steps. First, if the applicant is “doing substantial 

gainful activity,” he or she will be found not disabled. 20 C.F.R. § 

416.920(a)(4). Second, if the claimant has not had a severe impairment or 

a combination of such impairments for a continuous period of at least 12 

months, no disability will be found. Id. Third, if the claimant’s severe 

impairments meet or equal the criteria of an impairment set forth in the 

Commissioner’s Listing of Impairments, the claimant will be found disabled. 

Id. If the fourth step is reached, the Commissioner considers its 

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assessment of the claimant’s residual functional capacity (“RFC”), and will 

find the claimant not disabled if he or she can still do past relevant work 

(“PRW”). Id. At the final step, the Commissioner reviews the claimant’s 

RFC, age, education and work experiences, and determines whether the 

claimant could adjust to other work. Id. The claimant bears the burden of 

proof throughout the first four steps, but the burden shifts to the 

Commissioner if the fifth step is reached. Preslar v. Sec’y of Health & 

Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994). 

Following the five-step sequential process, the ALJ concluded that 

Magee was not disabled. At step one, he found that Magee had not 

engaged in substantial gainful activity since August 8, 2011, the application 

date. [R. 15-2, Tr. 15]. At step two, he concluded that Magee had the 

following severe impairments: “ganglion cyst on the right foot, nonobstructive coronary artery disease, asthma, degenerative changes in the 

thoracic and cervical spines, bipolar disorder, and alcoholism.” [Id.] At 

step three, the ALJ determined that Magee’s impairments did not meet or 

medically equal the severity of any enumerated listing. [Id., Tr. 16]. 

Between steps three and four, the ALJ assessed Magee’s RFC, 

finding her capable of performing light work. [R. 15-2, Tr. 18]. He further 

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noted that Magee is limited to performing unskilled work if her alcoholism is 

considered; otherwise, she could perform semiskilled work. [Id., Tr. 20]. At 

step four, the ALJ found Magee capable of performing PRW as a 

salesperson, which the VE testified was semi-skilled, light work. [Id., Tr. 

20, 51]. Despite concluding that Magee could perform PRW, the ALJ made 

an alternative step five finding based on the Medical Vocational Guidelines

(“Grids”). Specifically, he found that based on Magee’s age, education, 

and transferable work skills, Grid Rules 202.15 and 202.22 (skills from 

PRW transferable) or Grid Rules 202.14 and 202.21 (skills from PRW not 

transferable) apply and direct a finding of not disabled.2

 [Id., Tr. 21]. Thus, 

the ALJ found Magee not disabled.

II. ANALYSIS

Pursuant to § 405(g), this Court’s review is limited to determining 

whether the Commissioner’s decision is supported by substantial evidence 

and was made in conformity with proper legal standards. Gentry v. Comm’r 

of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014). Substantial evidence is 

“more than a scintilla of evidence but less than a preponderance; it is such 

 

2 Two different Grid Rules apply because Magee was under 50 years of 

age and classified as a “younger person” when she filed her application, 

but at the time of the hearing, she was 50 years old and classified as a 

“person closely approaching advanced age.” See 20 C.F.R. § 416.963. 

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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) (internal quotation marks and citation omitted). Only the 

evidence in the record below may be considered when determining 

whether the ALJ’s decision is supported by substantial evidence. Bass v. 

McMahon, 499 F.3d 506, 513 (6th Cir. 2007). 

The significant deference accorded the Commissioner’s decision is 

conditioned on the ALJ’s adherence to governing standards. “Chief among 

these is the rule that the ALJ must consider all evidence in the record when 

making a determination, including all objective medical evidence, medical 

signs, and laboratory findings.” Gentry, 741 F.3d at 723. See also Rogers, 

486 F.3d at 249. In other words, substantial evidence cannot be based 

upon fragments of the evidence, and “must take into account whatever in 

the record fairly detracts from its weight.” Garner v. Heckler, 745 F.2d 383, 

388 (6th Cir. 1984) (internal quotation marks and citation omitted). 

The Commissioner must also adhere to its own procedures, but 

failure to do so constitutes only harmless error unless the claimant has 

been prejudiced or deprived of substantial rights. Rabbers v. Comm’r of 

Soc. Sec., 582 F.3d 647, 654 (6th Cir. 2009). An ALJ’s failure to use an 

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“adjudicatory tool” that does not change the outcome of the decision is 

harmless. Id. at 655-56. 

Magee argues that the ALJ committed reversible error by failing to 

properly evaluate the opinions of the consulting examiners, that the RFC is 

not supported by substantial evidence, and that the hypothetical question 

posed to the VE failed to accurately describe her limitations. The Court 

disagrees and recommends affirming the decision of the ALJ. 

A. Substantial Evidence Supports the ALJ’s Decision

Magee argues that the ALJ relied on a non-treating physician and 

substituted his own judgment in formulating the RFC determination. She 

contends that the RFC fails to accurately account for her physical and

mental impairments. These arguments are without merit. 

“In formulating a residual functional capacity, the ALJ evaluates all 

relevant medical and other evidence and considers what weight to assign 

to treating, consultative, and examining physicians’ opinions.” 20 C.F.R. § 

404.1545(a)(3). Eslinger v. Comm’r of Soc. Sec., 476 F. App’x 618, 621 

(6th Cir. 2012). Further, an ALJ is required only to incorporate those 

limitations he finds credible when making an RFC determination. Irvin v. 

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Soc. Sec. Admin., 573 Fed. Appx. 498, 502 (6th Cir. 2014) (citing Casey v. 

Secy' of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir.1993)).

1. Alleged Physical Impairments

In making his RFC determination, the ALJ cited to the State agency 

consultant’s January 2012 RFC assessment, which indicated Magee had 

an RFC for light work, and specified relevant medical evidence that 

supported the RFC. Regarding Magee’s physical impairments, the ALJ 

noted that the State agency consultant’s RFC was consistent with the 

opinion of consultative examiner Cynthia Shelby-Lane, M.D., whose 

examination is the only medical opinion of Magee’s exertional functional 

capacity. [R. 15-2, Tr. 19-20; R. 15-7, Tr. 182-90]. Dr. Shelby-Lane’s 

report shows a relatively normal physical examination, reflecting that 

Magee was capable of completing all physical abilities tested (e.g., sit, 

stand, bend, stoop, carry, push, pull, etc.). [R. 15-7, Tr. 186-88]. 

Magee contends that the medical evidence and her testimony show 

that her CMT disease was a severe impairment. [R. 20, PgID 333-34]. 

She argues that it disrupts her daily activities, causes chronic pain in both 

feet and causes her to fall once per week due to weakness, lack of 

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coordination, and lack of stability.3

 However, as the Commissioner argues, 

the only reference of CMT in the medical evidence arises in the opinion of 

Dr. Shelby-Lane, who conducted the consultative physical examination; the 

doctor relied upon Magee’s report of a history of CMT. [R. 21, PgID 353-

54, citing R. 15-2, Tr. 182, 184; R. 15-7, Tr. 184]. Despite this, Dr. ShelbyLane found that Magee showed no muscle atrophy; did not require a 

walking aid; had only a slight limp on the right side; could tandem, heel, 

and toe walk; and had normal reflexes. [R. 15-7, Tr. 186-89]. These 

findings are inconsistent with severe CMT, and Dr. Shelby-Lane did not 

assess any physical limitations based on Magee’s CMT disease. [R. 15-7, 

Tr. 182-90]. Further, none of Magee’s other medical records – either 

before or after the consultative examination – contain any reference to 

CMT disease, and a progress note from Sofia Syed, M.D., Magee’s most 

recent treating physician, indicates a normal musculoskeletal examination 

in June 2012. [R. 15-7, Tr. 252]. 

 

3 Magee also claims that her CMT causes numbness in her hands and feet, 

ataxic gait, and severe peripheral sensory loss [R. 20, PgID 333], but the 

records she cites are from her hospital visit for a heart attack and stroke. 

[See R. 15-7, Tr. 215]. The medical records indicate that her heart attack 

caused those symptoms, and when she was discharged the symptoms had 

resolved and she was in stable condition. [Id., Tr. 236].

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Since Dr. Shelby-Lane is the only doctor to diagnose CMT and she 

did not assess any physical limitation, the ALJ’s RFC limiting Magee to light 

work is more restrictive than the opinion on which Magee relies. This 

constitutes substantial evidence in support of the physical RFC. See Curler 

v. Comm’r of Soc. Sec., 561 Fed. Appx. 464, 473 (6th Cir. 2014) (finding 

substantial evidence to support an RFC finding where the ALJ’s finding was 

more restrictive than the opinion the plaintiff identified); Warren v. Comm’r 

of Soc. Sec., No. 13-13523, 2014 WL 3708565, at *4 (E.D. Mich. July 28, 

2014) (Battani, J.) (finding substantial evidence to support an RFC finding 

where the ALJ’s finding was more restrictive than the only medical opinion 

in the record).

2. Credibility Determination

The ALJ also held that Magee was not fully credible. Credibility 

determinations of witnesses are within the province of the ALJ, and will not 

be overturned “absent compelling reason.” Smith v. Halter, 307 F.3d 377, 

379 (6th Cir. 2001). At the same time, “such determinations must find 

support in the record.” Rogers, 486 F.3d at 241. Here, the ALJ found that 

Magee’s ability to care for four dogs contradicted her allegations regarding 

her ability to sit, stand, walk, lift and carry, see Walters v. Comm'r of Soc. 

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Sec., 127 F.3d 525, 532 (6th Cir. 1997) (an ALJ may consider household 

and social activities engaged in by the claimant in evaluating her assertions 

of pain or ailments); he noted that Magee did not have a long and 

continuous employment history, see Oleary v. Comm'r of Soc. Sec., No. 

14-10869, 2015 WL 730109, at *7 (E.D. Mich. Feb. 19, 2015) (a claimant’s 

minimal work history is an appropriate consideration in assessing her 

credibility); and he found that a person with the impairments and limitations 

alleged would go to the doctor more than once every six months, which is 

how often Magee indicated she saw a doctor, see Strong v. Comm’r of Soc. 

Sec., 88 Fed. Appx. 841, 846 (6th Cir. 2004) (failure to seek treatment for 

alleged impairment may cast doubt on claimant’s assertions regarding the 

severity of the condition). [R. 15-2, Tr. 18]. Therefore, the ALJ’s credibility 

determination finds support in the record and Magee has not proffered a 

compelling reason to overturn it. 

3. Alleged Mental Impairments

Substantial evidence also supports the ALJ’s findings regarding 

Magee’s mental impairments. The ALJ found that Magee had 

moderate restrictions in activities of daily living; mild difficulties in social 

functioning, and mild difficulties with regard to concentration, persistence or 

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pace. [R. 15-2, Tr. 17]. In so finding, the ALJ relied on the opinion of 

consultative psychologist Nice Boneff, Ph.D., who examined Magee on 

January 9, 2012, and the January 20, 2012 psychiatric assessment of Jung 

Kim, M.D., a State agency consultant who reviewed the records. [Id., Tr. 

17, 19; R. 15-3, Tr. 59-60; R. 15-7, Tr. 180].

Dr. Boneff opined that Magee “demonstrated strengths in immediate 

memory and the capacity to pay attention as well as short-term memory”; 

“displayed only slight to moderate capacities to concentrate ... on 

calculation tasks, but strengths in abstract thinking”; and “displayed 

variability in terms of the capacity for judgment and impulse control.” [R. 

15-7, Tr. 180]. Although Dr. Boneff diagnosed Magee with bipolar disorder, 

he concluded that that Magee “appear[ed] capable of engaging in worktype activities of a moderate to relatively high-degree of complexity, [and 

activities that involved] remembering and executing a multiple step 

procedure on a sustained basis....” [Id.]. Dr. Kim opined that Magee had a 

mild restriction in activities of daily living and mild difficulties in maintaining 

social functioning and maintaining concentration, persistence, or pace. [R. 

15-3, Tr. 60]. He further opined that Magee did not have a severe mental 

impairment and that her impairment “does not significantly limit mental 

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ability to do basic work activities.” [Id., Tr. 60]. 

Magee does not indicate how the ALJ erred with regard to assessing

her mental impairments, and she does not specify any non-exertional 

limitations that he should have included. Even if the ALJ erred in failing to 

assess specific mental limitations, any error was harmless because the 

ALJ’s alternative step five finding based on the Grids, see infra, § II., B., is 

supported by substantial evidence. See Gaskin v. Comm’r of Soc. Sec., 

No. 14-10859, 2015 WL 268335, at *4 (E.D. Mich. Jan. 21, 2015) (“Errors 

at step four are considered harmless when the ALJ makes an alternative 

determination at step five.”). Reliance on the Grids requires a finding that 

the claimant can perform unskilled work. 20 C.F.R. Pt. 404, Subpt. P, 

App’x 2 § 200.00(b). Unskilled work comprises the abilities to understand, 

carry out, and remember simple instructions; respond appropriately to 

supervision, coworkers, and usual work situations; and deal with changes 

in a routine work setting. SSR 85-15, 1985 WL 56857, at *4 (1985). The 

opinions of Dr. Boneff and Dr. Kim support the ALJ’s finding that Magee 

can perform unskilled work.

4. Determination of Non-Disability at Step Five

Magee argues that the hypothetical question posted to the VE failed to

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adequately describe her limitations. This argument is off the mark because 

the ALJ determined at step four that Magee could perform PRW, and VE 

testimony is not required for an ALJ to make a step four finding regarding 

PRW. See Estep v. Comm’r of Soc. Sec., No. 11-11241, 2012 WL 3776485, 

at *7 (E.D. Mich. Apr. 16, 2012), aff’d, 2012 WL 3758033 (E.D. Mich. Aug. 

30, 2012); 20 C.F.R. § 416.960(b)(2) (“We may use the services of 

vocational experts ... to obtain evidence we need to help us determine 

whether you can do your past relevant work, given your residual functional 

capacity.”) (emphasis added). On the other hand, the ALJ did err by finding 

that Magee could perform PRW because Magee’s alcoholism limits her to 

performing unskilled work, and her PRW as a salesperson is a semi-skilled 

position. [R. 15-2, Tr. 20, 51].4

However, this step-four error is harmless because the ALJ’s

alternative step-five finding that, based on Magee’s age and education, 

Grid Rules 202.14 and 202.21 (skills from PRW not transferable) apply and 

direct a finding of not disabled. [R 15-2, Tr. 21]. Magee did not argue that 

the Grid Rules are inapplicable or were applied erroneously, and the Court 

 

4 Magee did not make this argument, but the Commissioner admitted error 

and argued that error was harmless. See Commissioner’s brief at R. 21, 

PgID 361-62 & n. 6.

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finds no error. Accordingly, substantial evidence supports the ALJ’s 

determination that Magee is not disabled. 

For all of these reasons, substantial evidence supports the ALJ’s 

finding that Magee is capable of performing light and unskilled work, and 

his decision should be affirmed. Cutlip v. Sec’y of Health & Human Servs., 

25 F.3d 284, 286 (6th Cir. 1994) (internal citations omitted) (“If the 

[Commissioner’s] decision is supported by substantial evidence, it must be 

affirmed even if the reviewing court would decide the matter differently, and 

even if substantial evidence also supports the opposite conclusion.”).

III. CONCLUSION

For the reasons stated above, the Court RECOMMENDS that

Magee’s motion for summary judgment [R. 20] be DENIED, the 

Commissioner’s motion [R. 21] be GRANTED, and the Commissioner’s 

decision be AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g).

s/Elizabeth A. Stafford

ELIZABETH A. STAFFORD

United States Magistrate Judge

Dated: January 21, 2016

NOTICE TO THE PARTIES REGARDING OBJECTIONS

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

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Report and Recommendation, but must act within fourteen days of service 

of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed. R. Civ. 

P. 72(b)(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. 

Secretary of HHS, 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 party 

might have to this Report and Recommendation. Willis v. Secretary of 

HHS, 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). A copy of any objection 

must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2).

Each objection must be labeled as “Objection #1,” “Objection #2,” 

etc., and must specify precisely the provision of this Report and 

Recommendation to which it pertains. Not later than fourteen days after 

service of objections, the non-objecting party must file a response to 

the objections, specifically addressing each issue raised in the objections in 

the same order and labeled as “Response to Objection #1,” “Response to 

Objection #2,” etc. The response must be concise and proportionate in 

length and complexity to the objections, but there is otherwise no page 

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limitation. If the Court determines that any objections are without merit, it 

may rule without awaiting the response.

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s ECF 

System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on January 21, 2016.

s/Marlena Williams

MARLENA WILLIAMS

Case Manager

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