UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DAWN MAY JACKSON,

Plaintiff, Civil Action No. 14-13323

v. HON. PATRICK J. DUGGAN

 U.S. District Judge

HON. R. STEVEN WHALEN

COMMISSIONER OF SOCIAL U.S. Magistrate Judge

SECURITY,

Defendant.

__________________________________/

REPORT AND RECOMMENDATION

Plaintiff Dawn May Jackson (“Plaintiff”) brings this action pursuant to 42 U.S.C.

§405(g) challenging a final decision of Defendant Commissioner denying her application for 

Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act. Both

parties have filed summary judgment motions which have been referred for a Report and

Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, I

recommend that Defendant’s Motion for Summary Judgment be DENIED, and that

Plaintiff’s Motion for Summary Judgment be GRANTED to the extent that the case is

remanded to the administrative level for further proceedings 

PROCEDURAL HISTORY

On April 26, 2011, Plaintiff filed an application for SSI, alleging disability as of

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March 1, 2010 (Tr. 132). After the initial denial of benefits, Plaintiff requested an

administrative hearing, held on November 14, 2012 in Livonia, Michigan before

Administrative Law Judge (“ALJ”) Henry Perez, Jr. (Tr. 47). Plaintiff, represented by

attorney John Searles, testified (51-76), as did Vocational Expert (“VE”) Dr. Lois Brooks

(Tr. 76-81). On January 25, 2013, ALJ Perez found Plaintiff not disabled (Tr. 42-43). On

June 27, 2014, the Appeals Council denied review (Tr. 1-3). Plaintiff filed suit in this Court

on August 26, 2014. Docket #1. 

BACKGROUND FACTS

Plaintiff, born January 13, 1975, was 38 when the ALJ issued his decision (Tr. 43,

132). She completed two years of college and worked previously as a chore provider, clerk, 

and certified nursing assistant (“CNA”) (Tr. 156). She alleges disability as a result of back

pain, Attention Deficit Disorder (“ADD”), depression, and panic attacks (Tr. 155). 

A. Plaintiff’s Testimony

Plaintiff offered the following testimony:

She last worked in 2007 (Tr. 52). Her low back condition took a downturn at the time

of her daughter’s February, 2010 birth (Tr. 52). She received conservative treatment until

undergoing surgery in December, 2010 (Tr. 53). She initially experienced an improvement 

until two months after surgery at which time the back pain and radiating left leg pain and

numbness dramatically worsened (Tr. 53-54). A post-operative MRI study showed the

presence of a cyst (Tr. 55). She had been told that the back pain was the result of the cyst,

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scar tissue, and arthritis (Tr. 57). She was unable to finish a course of physical therapy due

to back pain (Tr. 57-58). 

Plaintiff took Morphine Sulfate, Oxycontin, and Motrin for back pain (Tr. 59). While

the pain medication initially caused the side effect of drowsiness, her body had “adjusted”

to the medication regimen (Tr. 59). The medication reduced but did not eliminate her pain

(Tr. 60). She took between one and three naps each day lasting between 20 and 60 minutes

(Tr. 60). Back pain required her to sit leaning to the right (Tr. 61). She walked with a limp

due to left leg problems (Tr. 62). She was unable to walk more than 30 minutes at a time (Tr.

62). She was unable to stand upright for any length of time, but could stand listing to the

right for up to 30 minutes (Tr. 62, 65). She was able to sit for up to 30 minutes provided that

she leaned to the right (Tr. 66). She was unable to lift even five pounds (Tr. 66). She

experienced exacerbations of pain approximately four times a week lasting anywhere from

three hours to a full day (Tr. 67). She coped with such episodes by taking Motrin, using a

heating pad, and reclining (Tr. 67). 

Plaintiff was treated for depression “years ago” at which time she took Cymbalta (Tr.

68). She had not received a diagnosis of ADD but believed that she had the condition (Tr.

68). She was forgetful and often forgot to complete scheduled household chores or

paperwork (Tr. 70). On occasions, she “panic[ed]” at the thought of going to the store (Tr.

71). During depressive episodes, she would typically stay in her pajamas all day (Tr. 72). 

Her mother suffered from panic attacks and depression (Tr. 72). She began psychological

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counseling approximately two weeks before the hearing (Tr. 73). She experienced panic

attacks both at home and in public approximately once a week (Tr. 75). Back problems

prevented her from engaging in her former pastimes ofswimming and walking (Tr. 76). She

had not driven since her licence was suspended for the non-payment of traffic tickets (Tr.

74). 

 B. Medical Evidence

 1. Treating Sources

In June, 2009, neurologist Frank Schinco, M.D. diagnosed Plaintiff with mild lumbar

radiculopathy, recommending epidural nerve blocks (Tr. 333). In September, 2010, Dr.

Schinco noted Plaintiff’s reports of worsening back pain (Tr. 334). She demonstrated full

strength in all extremities (Tr. 335). Dr. Schinco recommended conservative treatment (Tr.

291). In December, 2010, an MRI showed a large synovial cyst at L5-S1 (Tr. 259). Treating

notes the same month by Charles Ellsworth, D.O. state that Plaintiff was “hyper” and

“nervous” but responded well to reassurance regarding upcoming lumbar surgery (Tr. 279). 

Later the same month, Plaintiff underwent a hemilaminotomy and the partial excision of the

synovia cyst (Tr. 257, 261, 284-285, 341-342, 433-434). She was restricted to lifting 10

pounds or less (Tr. 258, 344). In February, 2011, Plaintiff reported an exacerbation of back

pain after lifting her three-year-old son (Tr. 280). A March, 2011 MRI of the lumbar spine

showed a broad-based protrusion affecting the S-1 nerve root with a remaining synovia cyst

at L5-S1 (Tr. 267). Plaintiffsought emergency treatment for back pain, noting that “nothing”

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relieved her back pain (Tr. 302). She was given Dilaudid before being released (Tr. 304).

(Tr. 351). In April, 2011, Plaintiff reported shooting left leg pain and that her discomfort

was worse than before surgery (Tr. 282). Dr. Schinco offered to perform followup surgery

(Tr. 350). The same month, neurologist Naman A. Salibi noted Plaintiff’s report that she

used Lortab, Vicodin, and Motrin to relieve back pain (Tr. 294). An examination of the

upper extremities was unremarkable (Tr. 296). Plaintiffsquatted with difficultybut was able

to walk on “tiptoes” and heels (Tr. 296). Dr. Salibi noted that a recommendation for future

surgical intervention was “most likely” (Tr. 297, 362). A May, 2011 EMG of the lower

extremities was unremarkable (Tr. 299). The same month, Plaintiff sought emergency

treatment, reporting that she twisted her back and was unable to obtain medicine from her

physician (Tr. 312). A CT of the lumbar spine showed a “broad-based disc bulge” causing

severe stenosis at L5-S1 (Tr. 318, 364). 

In August, 2011, emergency room records show mild tenderness of the left lower

paralumbar area with left leg pain (Tr. 367). The following month, she reported “constant”

back pain (Tr. 375). Treating notes state that she was making “excuses” for not having an

updated MRI (Tr. 378). A November, 2011 MRI of the lumbar spine was essentially

unchanged from earlier studies (Tr. 369, 388, 426). In January, 2012, Plaintiff reported that

she had been out-of-town “a lot” in the past month (Tr. 401). In March, 2012, she reported

reduced pain after an epidural pain block but increased pain the following month (Tr. 406-

407). In May, 2012, Plaintiff reported that she was unable to get a ride to physical therapy

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(Tr. 408). June, 2012 treating notes by Mazher Hussain, M.D. note Plaintiff’s report of left

leg numbness (Tr. 371). Plaintiff denied medication side effects (Tr. 371). Dr. Hussain

recommended epidural nerve blocks, and the continued use of oxycodone and morphine (Tr.

372). Plantiff was prescribed physical therapy in October, 2012 (Tr. 436). A December,

2012MedicalSource Statement regarding Plaintiff’s psychological limitations states that she

experienced no more than slight concentrational problems (Tr. 445, 447). 

2. Non-treating Sources

In August, 2011, Bruce Fowler, Psy.D. performed a psychological examination of

Plaintiff on behalf of the SSA, noting Plaintiff’s report that she experienced PMS at which

times she isolated herself, felt sad, and stayed in her pajamas all day (Tr. 325). She also

reported anxiety characterized by nausea, hyperventilation, and hysteria (Tr. 325). She

acknowledged that she had not received a diagnosis of Attention Deficit Hyperactivity

Disorder (“ADHD”) (Tr. 325). She denied the use of illegal drugs or the excessive use of

alcohol (Tr. 326). Dr. Fowler observed that Plaintiff appeared anxious, “fidgety and even

frenetic at times” (Tr. 327). She appeared fully oriented and was able to perform serial 3's

and 7's (Tr. 328). Dr. Fowler assigned Plaintiff a GAF of 52, noting that she was “able to 1

understand and follow fairly complex directions” (Tr. 329). 

A GAF score of 41–50 indicates “[s]erious symptoms ... [or] serious impairment 1

in social, occupational, or school functioning,” such as inability to keep a job. Diagnostic

and Statistical Manual of Mental Disorders—Text Revision (“DSM–IV–TR”) 34, (4th

ed.2000). 

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The same month, Edward J. Brophy completed a non-examining disability

determination on behalf of the SSA (Tr. 95). He found that Plaintiff could carry 20 pounds

occasionally and 10 pounds frequently; sit, stand, or walk for six hours in an eight-hour

workday; and push and pull without limitation (Tr. 90). As to postural limitations, he found

that Plaintiff could climb ramps or stairs frequently, and balance, stoop, kneel, crouch, crawl,

and climb ladders, ropes, or scaffolds on an occasional basis (Tr. 90). He found the absence

of additional physical limitations (Tr. 91). 

Also in August, 2011, Judy Strait, Psy., L.P. completed a non-examining assessment

of the treating records, finding that Plaintiff experienced mild restriction of activities of daily

living and social functioning and moderate difficulties in maintaining concentration,

persistence or pace (Tr. 88). She found that Plaintiff would “have difficulty with detailed

tasks” and might “not work well with the general public” (Tr. 93). She found that Plaintiff

could perform “routine, 2-step tasks on a sustained basis” (Tr. 93). 

In November, 2012, Dawn Bane Gventer, Psy.D noted Plaintiff’s report of panic

attacks up to five times each month (Tr. 450). Plaintiff appeared fully oriented but “sat in

an awkward position on the couch” due to “visible pain” (Tr. 451). She assigned Plaintiff

a GAF of 48 due to primarily physical problems, noting that the functional impairments 2

were due to the “medical ailments” (Tr. 452). 

A GAF score of 41-50 indicates "[s]erious symptoms ... [or] serious impairment in 2

social, occupational, or school functioning," such as inability to keep a job. DSM–IV–TR

at 34.

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C. Vocational Expert Testimony

VE Dr. Lois Brooks classified Plaintiff’s former work as a home attendant and CNA

as exertionally medium and semiskilled and clerical work, light/semiskilled (sedentary as 3

performed)(Tr.77-78). 

The ALJ then posed the following question to the VE, describing a hypothetical

individual of Plaintiff’s age, education, and work background: 

[A]ssume that such a person has an exertional limitation of lifting 20 pounds

occasionally, 10 pounds frequently, sitting, standing, walking six hours. 

There’s occasional climbing ladders, ropes, and scaffolds, occasionally

stooping, crouching, kneeling, and crawling. Jobs that would allow for routine

production orstress,simple job assignments, occasional contact with the public,

and jobs where the individual could perform routine two step tasks on a

sustained basis. Putting this individual at the unskilled level. Could such a

person be able to perform Claimant’s past relevant work? (Tr. 64). 

The VE replied that the above limitations would preclude Plaintiff’s past relevant

work, but would permit the light, unskilled work of an assembler (22,000 jobs in the State

of Michigan) packager (13,000); and visual inspector (Tr. 6,000) (Tr. 78). The VE testified

3

20 C.F.R. § 404.1567(a-d) defines sedentary work as “lifting no more than 10 pounds at a

time and occasionally lifting or carrying articles like docket files, ledgers, and small tools; 

light work as “lifting no more than 20 pounds at a time with frequent lifting or carrying of

objects weighing up to 10 pounds;” medium work as “lifting no more than 50 pounds at a

time with frequent lifting or carrying of objects weighing up to 25 pounds;” and that

exertionally heavy work “involves lifting no more than 100 pounds at a time with frequent

lifting or carrying of objects weighing up to 50 pounds. Very Heavy work requires “lifting

objects weighing more than 100 pounds at a time with frequent lifting or carrying of objects

weighing 50 pounds or more. § 404.1567(e). 

 

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that if Plaintiff’s testimony regarding her exertional limitations were fully credited, she

would be able to perform the sedentary jobs of assembler (6,000 in the State of Michigan); 

sedentary visual inspector (3,000); and packager (4,200) (Tr. 79). However, the VE testified

that if Plaintiff’s testimony regarding the non-exertional limitations of pain, concentrational

problems, and panic attacks were credited, no work would be available (Tr. 80). In response

to questioning by Plaintiff’s attorney, the VE testified that the need to recline at unpredicted

times or, more than one workday absence each month would preclude all competitive

employment (Tr. 81). 

D. The ALJ’s Decision

Citing themedicalrecords, ALJ Perez determined that Plaintiff experienced the severe

impairments of “spine disorder; affective disorder; and anxiety disorder” but that none of the

conditions met or medically equaled one of the impairments found in 20 C.F.R. Part 404

Appendix 1 Subpart P (Tr. 30). He found that Plaintiff experienced mild limitation in

activities of daily living and social functioning and moderate limitation in concentration,

persistence, or pace (Tr. 31). 

The ALJ found that Plaintiff retained the Residual Functional Capacity to perform

unskilled, exertionally light work with the following limitations: 

[S]he can lift 20 pounds occasionally and 10 pounds frequently. She can

stand/walk for six hours in an eight-hour day; and sit for six hours in an eighthour day. She can occasionally climb ladders, ropes, and scaffolds. She is

limited to occasional stooping, crouching, kneeling, and crawling. Claimant

is limited to jobs that provide for routine production and stress; simple job

assignments; jobs that involve only occasional contact with the public; and

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routine two-step tasks on a sustained basis (Tr. 32-33). 

Adopting the VE’s job numbers, the ALJ found that although Plaintiff was unable to perform

any past relevant work, she could perform the exertionally light work of an assembler,

packager, and visual inspector and the sedentary jobs of assembler, visual inspector, and

packager (Tr. 43, 78-79). 

The ALJ discounted Plaintiff’s alleged degree of physical and psychological

limitation (Tr. 33-42). He cited Dr. Schinco’s September, 2010 neurological examination

notes showing a good range of motion and muscle strength (Tr. 34). He noted that 2011

EMG and nerve conduction studies were normal (Tr. 36-37). He cited May, 2011 emergency

room records showing that Plaintiff demonstrated a normal gait (Tr. 36). He observed that

Plaintiff was able to take a vacation in January, 2012 (Tr. 37). He noted that she reported

good results from an April, 2012 epidural injection (Tr. 37). 

The ALJ noted that consultative psychological examination notes showed that

Plaintiff was able to “understand and follow fairly complex directions” (Tr. 39). The ALJ

discounted Dr. Gventer’s finding of serious psychological symptoms on the basis that it was

supported mostly by Plaintiff’s subjective complaints (Tr. 39-40). He found that Plaintiff’s

ability to go on vacation since the alleged onset of disability undermined her claims of

extreme limitation (Tr. 40). The ALJ observed that Plaintiff was able to care for her young

children, perform light household chores, and manage her finances (Tr. 40). He noted that

she denied significant medication side effects (Tr. 41). 

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 STANDARD OF REVIEW

The district court reviews the final decision of the Commissioner to determine

whether it is supported by substantial evidence. 42 U.S.C. §405(g); Sherrill v. Secretary of

Health and Human Services, 757 F.2d 803, 804 (6 Cir. 1985). Substantial evidence is more th

than a scintilla but less that a preponderance. It is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.

389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB,

305 U.S. 197, 229, S. Ct. 206, 83 L.Ed.126 (1938)). The standard of review is deferential and 

“presupposes that there is a ‘zone of choice’ within which decision makers can go either way,

without interference from the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6 Cir. 

th

1986)(en banc). In determining whether the evidence is substantial, the court must “take into

account whatever in the record fairly detracts from its weight.” Wages v. Secretary of Health

& Human Services, 755 F.2d 495, 497 (6 Cir. 1985). The court must examine the th

administrative record as a whole, and may look to any evidence in the record, regardless of

whether it has been cited by the ALJ. Walker v. Secretary of Health and Human Services,

884 F.2d 241, 245 (6 Cir. 1989). th

FRAMEWORK FOR DISABILITY DETERMINATIONS

Disability is defined in the Social Security Act as 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

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to last for a continuous period of not less than 12 months.” 42 U.S.C. §423(d)(1)(A). In

evaluating whether a claimant is disabled, the Commissioner is to consider, in sequence,

whether the claimant: 1) worked during the alleged period of disability; 2) has a severe

impairment; 3) has an impairment that meets or equals the requirements of an impairment

listed in the regulations; 4) can return to past relevant work; and 5) if not, whether he or she

can perform other work in the national economy. 20 C.F.R. §416.920(a). The Plaintiff has

the burden of proof as steps one through four, but the burden shifts to the Commissioner at

step five to demonstrate that, “notwithstanding the claimant's impairment, he retains the

residual functional capacity to perform specific jobs existing in the national economy.” 

Richardson v. Secretary of Health & Human Services, 735 F.2d 962, 964 (6th Cir.1984).

ANALYSIS

Plaintiff argues that the ALJ’s determination was not supported by substantial

evidence. Plaintiff’s Brief, 17-30, Docket #14. She disputes the ALJ’s conclusion that her

testimony was not credible, arguing that the erroneous omission of her professed limitations

from the hypothetical question tainted the VE’s job testimony. Id. She contends that her

allegations of physical and psychological limitation were amplysupported bythe treating and

consultative record. Id. 

A. The Physical Limitations

In support of the credibility determination, the ALJ discounted Plaintiff’s claims of

physical limitations by noting that she was able to take a vacation since the alleged onset of

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disability (Tr. 40). He noted that Plaintiff was able to “care for young children at home,

which can be quite demanding both physically and emotionally” (Tr. 40). The ALJ cited

Plaintiff’s acknowledgment that she watched television with her children and read to them

(Tr. 40). He noted that she was able to cook, albeit from a sitting position, do “small loads

of laundry,” and “shop for necessities” (Tr. 40). The ALJ noted that in November, 2011,

Plaintiff made “‘many excuses’” for her failure to procure an updated MRI (Tr. 37, 378). 

He noted that in March, 2012, Plaintiff was “refused by Dr. Best for pain management” with

“no explanation” for the refusal (Tr. 37). He also cited treating records showing that

Plaintiff’s pain was controlled with medication and that she denied medication side effects

(Tr. 41). 

It is well settled that “an 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.’ “ Cruse v. Commissioner of Social Sec., 502 F.3d 532, 542 (6th

Cir.2007)(citing Walters v. Commissioner of Social Sec., 127 F.3d 525, 531 (6th Cir.1997));

See also Casey v. Secretary of Health and Human Services, 987 F.2d 1230, 1234 (6th

Cir.1993); Anderson v. Bowen, 868 F.2d 921, 927 (7th Cir.1989) (citing Imani v. Heckler,

797 F.2d 508, 512 (7th Cir.1986))(An ALJ's “credibility determination must stand unless

‘patently wrong in view of the cold record’”).

Nonetheless here, the ALJ’s rationale for discounting Plaintiff’s physical limitations 

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is not well supported or articulated. Although the ALJ found that Plaintiff’s ability to “take 4

a vacation” undermined the disability claim, the cited January, 2012 record states only that

she “was out of town a lot [that] month” (Tr. 37, 40, 401). Moreover, assuming that Plaintiff

took a vacation, the ALJ did not question her as to the length of the vacation or her level of

activity during her travel. Likewise, Plaintiff’s acknowledgment that she was able to watch

television with her children and read to them does not support his conclusion that she was

able to lift 20 pounds occasionally or walk up to six hours in an eight-hour (Tr. 32-33, 40). 

 The ALJ’s observation that Plaintiff made “many excuses” for delaying a

recommended followup MRI implies that she avoided undergoing studieswhich would refute

her subjective complaints. However, the MRI ultimately performed in November, 2011

supports rather than undermines her claim of significant exertional and postural limitations

due to back pain (369). It is unclear why the ALJ believed that Plaintiff’s delay of the

imaging study undermined her credibility. Likewise, while the ALJ placed some import on

the fact she was at one point denied pain clinic treatment (apparently implying that she did

not require treatment or was abusing prescribed pain medication), none of the treating

4

The credibility determination, guided by SSR 96-7p, describes a two-step process for

evaluating symptoms. “First, the adjudicator must consider whether there is an underlying

medically determinable physical or mental impairment. . . that can be shown by medically

acceptable clinical and laboratory diagnostic techniques.” 1996 WL 374186,*2 (July 2,

1996). The second prong of SSR 96-7p directs that whenever a claimant’s allegations

regarding “the intensity, persistence, or functionally limiting effects of pain or other

symptoms are not substantiated by objective medical evidence,” the testimony must be

evaluated “based on a consideration of the entire case record.” Id. 

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records state or even suggest such a conclusion. Although the treating records show that pain

medication provided some relief, none of the records contradict Plaintiff’s testimony that she

continued to experience significant, ongoing back pain despite the use of opiates (Tr. 60, 280,

282, 302, 375, 406-407, 372). The ALJ’s rationale for the credibility determination is

particularly inadequate when weighed against numerous objective studies supporting

Plaintiff’s allegations of limitation (Tr. 297, 318, 369). 

The ALJ’s heavy reliance on Dr. Brophy’s August, 2011 non-examining conclusion

that Plaintiff was capable of a range of light work is also of concern (Tr. 36). Dr. Brophy’s

review of the treating records cites May 17, 2011 emergency room notes stating that Plaintiff

was able to walk to the bathroom without assistance (Tr. 87). However, Dr. Brophy’s

summation of the May, 2011 records does not acknowledge a CT study (attached to the same

emergency room records) showing the presence of a “broad-based disc bulge” causing

“severe” stenosis at L5-S1 (Tr. 318). While Dr. Brophy was not required to restate all the 

records, it is impossible to reconcile his finding that Plaintiff was capable of climbing ropes

and scaffolds up to one-third of an eight-hour workday (based only on Plaintiff’s ability to

walk to a bathroom) with the CT study showing severe stenosis (Tr. 90). 

Further, Dr. Brophy did not have benefit of records created between September, 2011

and December, 2012. As a rule, “updated” medical records are to be accorded more weight

than older ones. See Hamblin v. Apfel, 7 Fed.Appx. 449, 451, 2001 WL 345798, *2 (6th Cir.

March 26, 2001)(affirming an ALJ's rejection of a treating physician's “outdated” opinion

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on the basis that a consultive physician had performed a more recent appraisal with

contradicting findings). The records post-dating Dr. Brophy’s assessment show that 

Plaintiff’s condition continued to worsen: September, 2011 (“constant” back pain);

November, 2011 (MRI showing continued nerve root involvement at L5-S1); March, 2012

(only short term improvement from epidural injections); June, 2012 (left leg numbness) (Tr.

371, 375, 388, 406-407). The increased weight accorded to updated medical information 

is especially appropriate here, where in contrast to Dr. Brophy’s findings, the newer evidence

was created by treating and examining sources. See Sayles v. Barnhart, 2004 WL 3008739,

*23 (N.D.Ill. December 27, 2004) (adoption of “outdated and inadequate” non-treating

findings created prior to a diagnosis of diabetes grounds for remand). 

The inadequately supported credibility determination and adoption of Dr. Brophy’s

assessment undermines the ALJ’s Step Five Findings. The hypothetical question forming

the basis for the VE’s job findings is drawn directly from Dr. Brophy’s August, 2011

assessment (compare Tr. 78, 90). The adoption of the questionable findings, coupled with

the poorly supported rejection of Plaintiff’s allegations, casts doubt on the ALJ’s choice of

hypothetical limitations. It is well settled that the failure to include all of a claimant’s

relevant limitations in the hypothetical question invalidates the vocational testimony. Varley

v. Commissioner of Health and Human Services, 820 F.2d 777, 779 (6th Cir.1987). As as

result, the VE’s job findings are tainted by both the erroneous credibility determination and

Dr. Brophy’s incomplete and outdated findings. 

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Moreover, the fact that the ALJ posed a second hypothetical question to the VE

including all of Plaintiff’s professed exertional limitations does not cure the error (Tr. 43,

79). The VE testified that if Plaintiff’s alleged inability to lift more than five pounds were

credited, she would be capable of a significant range of sedentary work (Tr. 79). However,

the VE testified that if Plaintiff’s professed need to lie down for significant portions of the

day as a result of back pain were credited, all gainful employment would be eliminated (Tr.

80). The ALJ’s failure to articulate a well supported rationale for rejecting these claims

warrants remand. 

B. Plaintiff’s Other Arguments for Remand

 In contrast, the remaining arguments do not provide a basis for remand. Plaintiff’s

argument that she is disabled under Listing 1.04A is not well taken. Subsection A of Listing

1.04 (disorders of the spine) requires evidence, among other limitations, evidence of “motor

loss.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04A. Plaintiff’s concession that she did not 

experienced motor loss defeats this argument. Plaintiff’s Brief at 25. While she argues that

her condition “at the very least” “equals” Listing 1.04A, she does not offer any specifics as

to how she “equals” the Listing. While as noted above, the ALJ’s over-reliance on Dr.

Brophy’s findings (combined with other errors) provides grounds for remand, Plaintiff has

not explained why Dr. Brophy’s finding that she did not equal a Listing should be

challenged. 

Likewise, Plaintiff’s contention that she met Listings 12.04 (affective disorders) and 

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12.06 (anxiety disorders) is unavailing. Both Listings require a showing of at least two

“marked” deficiencies in the categories of activities of daily living, social functioning, and

concentration, persistence, or pace. 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 12.04, 1206. 5

The ALJ found that Plaintiff experienced onlymild limitation in activities of daily and social

functioning and moderate limitation in concentration, persistence, or pace (Tr. 31). In

support of his finding that Plaintiff did not meet or equal a psychological Listing, the ALJ

noted that Plaintiff was able to perform personal care and light housekeeping activities and

interact well with her husband, children, and other family members (Tr. 31). The ALJ noted

that while Plaintiff experienced some degree of concentrational impairment, the condition

did not prevent her from completing two years of college and reading to her children (Tr. 31). 

Because the ALJ’s assessment of Plaintiff’s psychological conditions is supported by

substantial evidence, a remand on this basis is not warranted. 

In closing, I note that for the reasons set forth in section A., a remand is required. 

Still, because the present transcript does not present an “overwhelming” case for disability,

it is appropriate for the ALJ, rather than this Court, to determine if Plaintiff is entitled to

benefits based on the present record. Faucher v. Secretary of Health and Human Services,

17 F.3d 171 (6th Cir.1994). Accordingly, I recommend that the case be remanded to the

5

Alternatively, the Listings can be met with one marked limitation combined with

“repeated episodes of decompensation, each of extended duration.” 20 C.F.R. Pt. 404, Subpt.

P, App. 1, §§12.04, 12.06. Because Plaintiff does not allege even one episode of

decompensation, she cannot meet either Listing on this basis. 

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administrative level for further proceedings consistent with the above findings. 

CONCLUSION

For the reasons stated above, I recommend that Defendant’s Motion for Summary

Judgment be DENIED, and that Plaintiff’s Motion for Summary Judgment be GRANTED to

the extent that the case is remanded to the administrative level for further proceedings. 

Any objections to this Report and Recommendation must be filed within 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, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v.

Secretary of HHS, 932 F.2d 505 (6 Cir. 1991); United States v. Walters, 638 F.2d 947 (6 th th

Cir. 1981). Filing of objections which 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. Secretary of HHS, 931 F.2d 390, 401 (6 Cir. 1991); Smith v. th

Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6 Cir. 1987). Pursuant to E.D. th

Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.

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Within 14 days ofservice of any objecting party’s timely filed objections, the opposing

party may file a response. The response shall be not more than 20 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. 

s/ R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Dated: June 19, 2015

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was sent to parties of record

on June 19, 2015, electronically and/or by U.S. mail.

s/Carolyn M. Ciesla 

Case Manager to the

Honorable R. Steven Whalen

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