UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DAWN ROBINSON

Plaintiff,

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

_____________________________________/

Case No. 14-12657

Sean F. Cox

United States District Judge

Michael Hluchaniuk

United States Magistrate Judge

REPORT AND RECOMMENDATION

CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkt. 13, 14)

I. PROCEDURAL HISTORY

A. Proceedings in this Court

On July 7, 2014, plaintiff filed the instant suit seeking judicial review of the

Commissioner’s unfavorable decision disallowing benefits. (Dkt. 1). Pursuant to

28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(b)(3), District Judge Sean F. Cox

referred this matter to the undersigned for the purpose of reviewing the

Commissioner’s decision denying plaintiff’s claim for benefits. (Dkt. 2). This

matter is before the Court on cross-motions for summary judgment. (Dkt. 13, 14).

B. Administrative Proceedings

Plaintiff filed the instant claims for a period of disability, disability

insurance, and supplemental security income benefits on February 13, 2012,

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alleging disability beginning January 8, 2011. (Dkt. 8-2, Pg ID 59). Plaintiff’s

claim was initially disapproved by the Commissioner on June 4, 2012. Id. 

Plaintiff requested a hearing and on December 19, 2012 plaintiff appeared, along

with her attorney, before Administrative Law Judge (“ALJ”) Kevin J. Detherage,

who considered the case de novo. (Dkt. 8-2, Pg ID 59-70). In a decision dated

January 25, 2013, the ALJ found that plaintiff was not disabled. Id. Plaintiff

requested a review of this decision on March 26, 2013. (Dkt. 8-2, Pg ID 53-55). 

The ALJ’s decision became the final decision of the Commissioner when the

Appeals Council on May 7, 2014, denied plaintiff’s request for review. (Dkt. 8-2,

Pg ID 28-31); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir.

2004).

For the reasons set forth below, the undersigned RECOMMENDS that

plaintiff’s motion for summary judgment be DENIED, that defendant’s motion for

summary judgment be GRANTED, and that the findings of the Commissioner be

AFFIRMED.

II. FACTUAL BACKGROUND

A. ALJ Findings

Plaintiff was born in 1959 and was 53 years old at the time of the

administrative hearing, and 51 years old the alleged onset date of disability. (Dkt.

8-2, Pg ID 68). The ALJ applied the five-step disability analysis to plaintiff’s

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claim and found at step one that plaintiff had not engaged in substantial gainful

activity since the alleged onset date. (Dkt. 8-2, Pg ID 61). At step two, the ALJ 1

found that plaintiff’s irritable bowel syndrome (IBS), chronic obstructive

pulmonary disease (COPD), degenerative disc disease, and depression were

“severe” within the meaning of the second sequential step. Id. At step three, the

ALJ found no evidence that plaintiff’s combination of impairments met or equaled

one of the listings in the regulations. (Dkt. 8-2, Pg ID 62-63). The ALJ

determined that plaintiff had the following residual functional capacity (“RFC”):

After careful consideration of the entire record, I find

that the claimant has the residual functional capacity to

perform light work as defined in 20 CFR 404.1567(b)

and 416.967(b) except the claimant can occasionally

stoop, kneel, crouch or crawl. She can never climb

ladders/ropes/scaffolds and can occasionally climb

ramps and stairs. She can sit or stand at will provided she

will not be off task more than 9% of the work period.

She should avoid concentrated exposure to dust, fumes,

gases, odors, and poorly ventilated areas.

(Dkt. 8-2, Pg ID 63-64). At step four, the ALJ concluded that plaintiff could not

perform her past relevant work as a cleaner and chore provider. (Dkt. 8-2, Pg ID

68). At step five, the ALJ denied plaintiff benefits because plaintiff could

perform a significant number of jobs available in the national economy. (Dkt. 8-2,

 Plaintiff worked as a chore provider for her elderly mother, with whom she lived in 1

2011 and 2012, but this work activity did not rise to the level of substantial gainful activity. 

(Dkt. 8-2, Pg ID 61).

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Pg ID 69).

B. Plaintiff’s Claims of Error

According to plaintiff, the ALJ’s decision is contrary to the great weight of

the evidence of record and not supported by substantial evidence. (Dkt. 13, Pg ID

504-509). Plaintiff argues that the ALJ ignored medical evidence supporting a

finding of disability, namely the severity of her COPD, IBS, back pain and

depression. Id.

Plaintiff contends that the ALJ denigrated the severity of her COPD by

relying on a chest x-ray showing mild hyperaeration changes. (Dkt. 13, Pg ID

508). Plaintiff argues there is no correlation between hyperaeration and the

severity of COPD. Id. Plaintiff further contends that the ALJ ignored the

consulting examiner, Dr. Sankaran’s observations that her chest was

“emphysematous” and the presence of rhonchi, which suggested more serious

COPD. Id. Similarly, plaintiff argues that the ALJ discounted the severity of her

IBS by relying on findings that plaintiff had no abdominal tenderness, no liver

enlargement and normal bowel sounds on examination in November 2011 and

ignoring her reports of more than six bowel movements a day and frequent bowel

incontinence. (Dkt. 13, Pg ID 506-508). Plaintiff also argues that the ALJ erred

in concluding that her back and leg pain were not disabling because Doppler

imaging showed no deep vein thrombosis, and because plaintiff did not exhibit

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abnormal gait and station. (Dkt. 13, Pg ID 507). Finally, according to plaintiff,

the ALJ erred by presuming that plaintiff’s diagnoses of dysthymic disorder and

generalized anxiety disorder, along with her Global Assessment of Functioning

(GAF) score of 50, were based on her mental status examination from September

2012. (Dkt. 13, Pg ID 509). Plaintiff emphasizes that her diagnoses and her GAF

score were based not solely on her mental status examination, but on “the totality

of the psychological interview.” Id. Moreover, plaintiff notes that her mental

status examination revealed agitated motor activity, flat affect and depressed

mood, and that her GAF score placed her in the severe category of depression. Id.

Plaintiff also argues that the defendant failed to carry its burden of proof

that jobs existed in significant numbers that plaintiff, given her exertional and

non-exertional limitations, especially her medically ascertained respiratory,

orthopaedic, gastrointestinal and psychological impairments, could perform on a

regular and sustained basis, once plaintiff established she was incapable of

performing her past relevant work. Plaintiff, citing Varley v. Sec’y of HHS, 820

F.2d 777, 779 (6th Cir. 1987), contends that to satisfy that burden, defendant must

find, with the support of substantial evidence, that plaintiff has the vocational

qualification to perform specific jobs. (Dkt. 13, Pg ID 506). The substantial

evidence may come from the testimony of a vocational expert in response to a

hypothetical question, but only if the hypothetical question accurately portrays

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plaintiff’s physical and mental impairments. Plaintiff argues that the ALJ’s

hypothetical did not accurately portray plaintiff’s physical and mental impairments

in that plaintiff could only sit for 30 minutes at a time, walk not more than a half a

block, needs to lie down several hours per day and suffers from diarrhea so severe

and frequent that she must spend much her day going to the toilet. Id.

Additionally, plaintiff argues that the ALJ failed to provide reasonable,

specific reasons for finding plaintiff’s testimony less than fully credible, especially

in light of the great weight of the medical evidence. (Dkt. 13, Pg ID 504). 

Specifically, plaintiff contends that ALJ committed clear and reversible error by

applying the discredited “sit and squirm test,” noting his observation that plaintiff

did not appear to be in obvious pain or discomfort during the hearing and that she

lacked the physical appearance of a person experiencing prolonged or severe pain. 

(Dkt. 13, Pg ID 509). Plaintiff also disputes the ALJ’s finding that plaintiff made

inconsistent statements regarding her work history because she reported her last

regular job and therefore her onset of disability was in January 2011 despite

performing chore provider work, which did not amount to SGA, after that date. 

Id. Plaintiff contests the ALJ’s negative inference from the seven month gap in

her medical treatment, arguing that the gap was due to lack of insurance and her

inability to pay for treatment and thus, could not be used to undermine the

credibility of her testimony regarding the severity of her symptoms. (Dkt. 13, Pg

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ID 507).

Finally, plaintiff maintains that the ALJ erred by according little weight to

plaintiff’s GAF score and great weight to the opinion of the non-examining

physician. (Dkt. 13, Pg ID 510). Plaintiff also accuses the ALJ of

mischaracterizing sedentary jobs as light duty jobs because a finding that plaintiff

could only perform sedentary jobs would entitle plaintiff to benefits due to her

age. Id. Plaintiff contends that the jobs identified by the VE are not designated as

light duty based on the amount of weight to be lifted, but rather by the fact that

they require standing and walking that is in direct contravention to the ALJ’s

imposition of a sit/stand option. (Dkt. 13, Pg ID 512). 

C. The Commissioner’s Motion for Summary Judgment

The Commissioner addresses plaintiff’s arguments that the ALJ’s decision

was against the great weight of the (and thus not supported by substantial)

evidence by emphasizing that the ALJ relied on the medical evidence, including

the records from hospital visits, treatment notes, radiographs and colonoscopy

reports and the opinions of Drs. Sankaran and Blum, in concluding that plaintiff

was not disabled by her serious impairments. (Dkt. 14, Pg ID 531). 

Defendant notes that plaintiff’s medical records reveal that after

complaining of shortness of breath, a chest x-ray in September 2011 showed “mild

hyperaeration changes suggestive of underlying COPD.” (Dkt. 8-7, Pg ID 405;

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Dkt. 14, Pg ID 521). According to defendant, in February 2012, plaintiff

presented to the emergency department complaining of chest pain. (Dkt. 14, Pg ID

522). Plaintiff acknowledged that she had not filled her prescriptions or seen her

primary care doctor. (Dkt. 8-7, Pg ID 365). An exam revealed minimal wheezing

and normal breathing effort. (Dkt. 8-7, Pg ID 367). Medication resolved the

wheezing and an echocardiogram and chest x-rays showed no abnormalities. Id.

In May 2012, Dr. Sankaran opined that plaintiff had COPD that was adequately

treated with medication and not helped by plaintiff’s continued smoking. (Dkt. 8-

7, Pg ID 410).

Defendant also notes plaintiff sought treatment for diarrhea and abdominal

pain in August 2011. (Dkt. 8-7, Pg ID 297-364). CT scan and flexible

sigmoidoscopy suggested colitis, and medication was prescribed. Id. 

According to defendant, plaintiff complained of continued diarrhea at a November

2011 follow-up appointment, but was not taking medication. (Dkt. 8-7, Pg ID

301-302). Medication was prescribed and a colonoscopy was recommended. Id.

A colonoscopy performed in May 2012 revealed small internal hemorrhoids, but

was otherwise normal. (Dkt. 8-7, Pg ID 429). Plaintiff was diagnosed with IBS

and prescribed Imodium AD. Id.

Defendant reports that plaintiff denied back pain and had a normal

musculoskeletal exam and Doppler leg study in August 2011. (Dkt. 8-7, Pg ID

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308, 364). Plaintiff denied difficulty walking and had a normal gait in November

2011. (Dkt. 8-7, Pg ID 301-302). Examinations in July and September 2012

revealed a stable and guarded gait, normal leg strength and range of motion. (Dkt.

8-7, Pg ID 465-477). She was prescribed Vicodin for her chronic back pain. Id. 

In May 2012, Dr. Sankaran noted no musculoskeletal abnormality. (Dkt. 8-7, Pg

ID 410).

As noted by defendant, a psychoevaluation in September 2012 revealed a

dysthymic mood, agitated motor activity and flat affect. (Dkt. 8-7, Pg ID 438-

445). Plaintiff was diagnosed with depression and generalized anxiety disorder

and assigned a GAF of 50. Id. 

The Commissioner refutes plaintiff’s argument that the ALJ did not

properly evaluate plaintiff’s credibility. First, defendant notes that the ALJ’s

credibility determination is entitled to great weight and that one strong indication

of credibility is the consistency, both internally and with the record evidence, of

plaintiff’s statements. Defendant notes the following inconsistencies identified by

the ALJ in his decision:

• Plaintiff sought no treatment from January 2011 to August

2011, suggesting her symptoms were not as bad as alleged.

(Dkt. 8-2, Pg ID 64).

• In August 2011, she denied back pain. Id.

• Despite allegations of disabling leg pain, her gait was found to

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be stable, and her leg strength and range of motion was normal.

(Dkt. 8-2, Pg ID 64-65).

• Chest x-rays showed no acute abnormalities, mild

abnormalities were suggestive of COPD. (Dkt. 8-2, Pg ID 65). 

• Plaintiff stopped using medications for her COPD and IBS. Id.

• In October 2012, plaintiff’s breathing was normal. Id.

• Dr. Sankaran found only mild obstructive airway disease. Id.

• In August 2011, plaintiff was diagnosed with mild colitis. Id. 

• Plaintiff’s doctor revised the diagnosis to IBS after a normal

colonoscopy in May 2012. Id.

• A 2012 psychological assessment showed only mild to

moderate depression and did not reflect total disability. (Dkt.

8-2, Pg ID 66).

• The ALJ did not observe any obvious pain or discomfort when

plaintiff appeared at the hearing. (Dkt. 8-2, Pg ID 67).

• Plaintiff’s activities of daily living are inconsistent with her

claims of total disability. Id.

Defendant argues the above litany of inconsistencies provides substantial evidence

for the ALJ’s credibility finding. (Dkt. 14, Pg ID 529). 

Defendant also counters plaintiff’s arguments regarding the negative

inference the ALJ made about the gap in plaintiff’s treatment. Id. Contrary to

plaintiff’s argument that the ALJ failed to consider plaintiff’s lack of insurance

and funds to pay for medications and treatment in making this negative inference,

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defendant emphasizes the ALJ’s acknowledgment of plaintiff’s testimony

regarding her lack of insurance and his rejection of her explanation. Id. The ALJ

concluded that plaintiff’s ability to regularly purchase tobacco and alcohol was

inconsistent with her averment that she was completely unable to afford her

prescriptions. Id. (citing Sias v. Sec’y of Health & Human Servs., 861 F.2d 475,

480 (6th Cir. 1988)). Defendant argues that plaintiff failed to meet her burden to

show she was denied care due lack of money. Id. (citing Goff v. Barnhart, 421

F.3d 785, 793 (8th Cir. 2005)).

Defendant refutes plaintiff’s argument that the ALJ committed reversible

error by relying on the discredited “sit and squirm” test. (Dkt. 8-2, Pg ID 529-530)

(citing Martin v. Sec’y of Health & Human Servs., 735 F.2d 1008, 1010 (6th Cir.

1984)). Defendant maintains that Martin did not hold that an ALJ could not

consider his own observations, rather that he could not disallow a claim for pain

based solely on his own observations. (Dkt. 8-2, Pg ID 530). According to

defendant, the ALJ may cite personal observation as a reason for denying a claim

as long as he cites to some other evidence to support that conclusion. Id. (citing

Lucido v. Comm’r of Soc. Sec., 109 Fed. App’x 715, 716 (6th Cir. 2004)).

Additionally, the Commissioner argues that credibility determinations are subject

to a harmless error analysis, so that, even if it were error for the ALJ to have relied

upon his own observations at the hearing, other substantial evidence still

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supported the credibility finding. (Dkt. 14, Pg ID 531). For example, the

defendant justifies the ALJ’s consideration of plaintiff’s non-SGA work as a chore

provider as an inconsistency which undermines her credibility, relying on Miller v.

Comm’r of Soc. Sec., 2013 WL 1705026, at *2 (6th Cir. Apr. 22, 2013)(the ALJ

did not err by considering plaintiff’s ability to maintain part-time employment as

one factor relevant to the determination of whether he was disabled). Defendant

asserts that the ALJ considered plaintiff’s part-time work as one of many

credibility factors. 

The Commissioner also refutes plaintiff’s objection to the weight given by

the ALJ to the consulting physicians’ opinions, and plaintiff’s GAF score. (Dkt.

14, Pg ID 535). The Commissioner argues that the ALJ properly assigned great

weight to the opinions of consulting examiner, Dr. Sankaran, and non-examining

consultant Dr. Blum, the only medical opinions in the record, because they were

consistent with the record evidence and that plaintiff does not point to any

evidence contradicting the consulting doctors’ opinions. Id. The Commissioner

argues that plaintiff’s position that the ALJ should have ignored the medical

opinions and assessed plaintiff’s limitations on his own violates the rule that ALJs

may not play doctor and make their own medical findings. (Dkt. 14, Pg ID 536). 

Similarly, the Commissioner argues that the ALJ was justified in assigning little

weight to plaintiff’s GAF score because the Sixth Circuit has ruled that GAF

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scores are not particularly helpful. Id. (citing Oliver v. Comm’r of Soc. Sec., 415

Fed. App’x 681, 684 (6th Cir. 2001)).

Lastly, defendant maintains the ALJ properly relied on the VE testimony

that the listed jobs were appropriate for plaintiff’s RFC. (Dkt. 14, Pg ID 538). 

Although plaintiff now argues that the listed jobs do not allow for a sit/stand

option, plaintiff failed to raise this issue at the hearing, and, thus, according to

defendant, has waived the argument. (Dkt. 14, Pg ID 539) (citing McClanahan v.

Comm’r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) and Hare v. Comm’r of

Soc. Sec., 37 Fed. App’x 773, 776-77 (6th Cir. 2002)). Moreover, plaintiff’s

argument that the jobs listed by the VE do not provide for a sit/stand option is

based upon the job descriptions from the Dictionary of Occupational Titles (DOT),

which, as noted by the VE at the hearing, does not address sit/stand options; the

Commissioner asserts that the VE appropriately relied upon his professional

experience to determine whether jobs that plaintiff could perform could be

performed with a sit/stand option and existed in significant numbers. Id. (citing

Smith v. Halter, 307 F.3d 377, 378 (6th Cir. 2001)).

C. Plaintiff’s Reply Brief

Plaintiff responds to the Commissioner’s arguments by noting excerpts of

plaintiff’s medical record in conflict with those relied upon by the ALJ and argued

by the Commissioner. Specifically, plaintiff emphasizes that plaintiff completed

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the medication prescribed for her colitis rather than stopped taking medication

prescribed to her. (Dkt. 15, Pg ID 542). Plaintiff notes her additional weight loss

and that the colonoscopy she underwent had to be discontinued due to interval

bradycardia. (Dkt. 15, Pg ID 543; Dkt. 8-7, Pg ID 368). Plaintiff also contrasts

defendant’s account of plaintiff having “minimal wheezing,” in the emergency

room, with other notes that her breathing sounds were “very diminished

bilaterally,” and that she complained of pain in her chest “like a load of bricks...”

(Dkt. 15, Pg ID 543; Dkt. 8-7, Pg ID 370). Plaintiff reiterates the contrasting

aspects of her treatment record relied on by the ALJ. (Dkt. 15, Pg ID 546-47).

Plaintiff also points out some psychological issues omitted from defendant’s

summary and the ALJ’s decision: 

• plaintiff grew up in an adoptive, broken, abusive home;

• plaintiff never met her biological father;

• plaintiff’s boyfriend suffers from depression and has problems

with alcohol;

• plaintiff got the ages of two of her three children wrong;

• plaintiff’s daughter has substance abuse problems;

•

• plaintiff no longer speaks to her oldest son;

• plaintiff did poorly in school, requiring special education for

math and social studies;

•

• plaintiff assists her verbally abusive mother with household

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chores;

• plaintiff has no support system;

• plaintiff suffers from depression, anxiety, low self-esteem and

feelings of worthlessness, resulting in “frequent crying jags;”

• plaintiff has suffered from suicidal ideation in the past and

attempted suicide at age 27;

• plaintiff’s ability to concentrate was poor, she was agitated,

depressed, demonstrated poor self-concept, a loss of appetite

and had only fair judgment and insight; and,

• plaintiff’s dysthymic disorder, generalized anxiety disorder and

GAF of 50 places her in the “serious impairment” category,

meaning she would have serious impairment in social,

occupational or school functioning, according to the DSM-IVTR.

(Dkt. 15, Pg ID 543-44). Plaintiff argues that plaintiff’s impairments meet or equal

the criterial of Listed Impairment 12.04. (Dkt. 15, Pg ID 544).

Plaintiff also argues that the ALJ erred in disregarding plaintiff’s

boyfriend’s testimony, which corroborates her testimony regarding the extent and

severity of her symptoms, and that the Commissioner erroneously cited a case

regarding harmless error. (Dkt. 15, Pg ID 544-45). Plaintiff argues, without citing

authority, that she need not demonstrate that she was denied required medical

treatment due to poverty because that fact is too obvious to require proof. (Dkt.

15, Pg ID 547). Plaintiff argues that the negative Doppler test does nothing to rule

out the presence of a herniated disc, impinged or irritated nerve or other organic

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cause of radiculopathy. Id. Finally, plaintiff reiterates her disagreement with the

ALJ’s reliance on the opinion of non-examining consultant, Dr. Blum, “especially

given the fact that in almost every case Dr. Blum and his cohorts find no basis for

disability...” (Dkt. 15, Pg ID 548).

III. DISCUSSION

A. Standard of Review 

In enacting the social security system, Congress created a two-tiered system

in which the administrative agency handles claims, and the judiciary merely

reviews the agency determination for exceeding statutory authority or for being

arbitrary and capricious. Sullivan v. Zebley, 493 U.S. 521 (1990). The

administrative process itself is multifaceted in that a state agency makes an initial

determination that can be appealed first to the agency itself, then to an ALJ, and

finally to the Appeals Council. Bowen v. Yuckert, 482 U.S. 137 (1987). If relief is

not found during this administrative review process, the claimant may file an

action in federal district court. Mullen v. Bowen, 800 F.2d 535, 537 (6th Cir.1986).

This Court has original jurisdiction to review the Commissioner’s final

administrative decision pursuant to 42 U.S.C. § 405(g). Judicial review under this

statute is limited in that the court “must affirm the Commissioner’s conclusions

absent a determination that the Commissioner has failed to apply the correct legal

standard or has made findings of fact unsupported by substantial evidence in the

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record.” Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005);

Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). In deciding

whether substantial evidence supports the ALJ’s decision, “we do not try the case

de novo, resolve conflicts in evidence, or decide questions of credibility.” Bass v.

McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Garner v. Heckler, 745 F.2d 383,

387 (6th Cir. 1984). “It is of course for the ALJ, and not the reviewing court, to

evaluate the credibility of witnesses, including that of the claimant.” Rogers v.

Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007); Jones v. Comm’r of Soc.

Sec., 336 F.3d 469, 475 (6th Cir. 2003) (an “ALJ is not required to accept a

claimant’s subjective complaints and may ... consider the credibility of a claimant

when making a determination of disability.”); Cruse v. Comm’r of Soc. Sec., 502

F.3d 532, 542 (6th Cir. 2007) (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.”) (quotation marks omitted);

Walters, 127 F.3d at 531 (“Discounting credibility to a certain degree is

appropriate where an ALJ finds contradictions among medical reports, claimant’s

testimony, and other evidence.”). “However, the ALJ is not free to make

credibility determinations based solely upon an ‘intangible or intuitive notion

about an individual’s credibility.’” Rogers, 486 F.3d at 247, quoting Soc. Sec.

Rul. 96-7p, 1996 WL 374186, *4.

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 If supported by substantial evidence, the Commissioner’s findings of fact

are conclusive. 42 U.S.C. § 405(g). Therefore, this Court may not reverse the

Commissioner’s decision merely because it disagrees or because “there exists in

the record substantial evidence to support a different conclusion.” McClanahan v.

Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006); Mullen v. Bowen, 800

F.2d 535, 545 (6th Cir. 1986) (en banc). Substantial evidence is “more than a

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

a reasonable mind might accept as adequate to support a conclusion.” Rogers, 486

F.3d at 241; Jones, 336 F.3d at 475. “The substantial evidence standard

presupposes that there is a ‘zone of choice’ within which the Commissioner may

proceed without interference from the courts.” Felisky v. Bowen, 35 F.3d 1027,

1035 (6th Cir. 1994) (citations omitted), citing, Mullen, 800 F.2d at 545. 

The scope of this Court’s review is limited to an examination of the record

only. Bass, 499 F.3d at 512-13; Foster v. Halter, 279 F.3d 348, 357 (6th Cir.

2001). When reviewing the Commissioner’s factual findings for substantial

evidence, a reviewing court must consider the evidence in the record as a whole,

including that evidence which might subtract from its weight. Wyatt v. Sec’y of

Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). “Both the court of

appeals and the district court may look to any evidence in the record, regardless of

whether it has been cited by the Appeals Council.” Heston v. Comm’r of Soc.

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Sec., 245 F.3d 528, 535 (6th Cir. 2001). There is no requirement, however, that

either the ALJ or the reviewing court must discuss every piece of evidence in the

administrative record. Kornecky v. Comm’r of Soc. Sec., 167 Fed. Appx. 496, 508

(6th Cir. 2006) (“[a]n ALJ can consider all the evidence without directly

addressing in his written decision every piece of evidence submitted by a party.”)

(internal citation marks omitted); see also Van Der Maas v. Comm’r of Soc. Sec.,

198 Fed. Appx. 521, 526 (6th Cir. 2006).

B. Governing Law

The “[c]laimant bears the burden of proving his entitlement to benefits.” 

Boyes v. Sec’y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994);

accord, Bartyzel v. Comm’r of Soc. Sec., 74 Fed. Appx. 515, 524 (6th Cir. 2003). 

There are several benefits programs under the Act, including the Disability

Insurance Benefits Program (DIB) of Title II (42 U.S.C. §§ 401 et seq.) and the

Supplemental Security Income Program (SSI) of Title XVI (42 U.S.C. §§ 1381 et

seq.). Title II benefits are available to qualifying wage earners who become

disabled prior to the expiration of their insured status; Title XVI benefits are

available to poverty stricken adults and children who become disabled. F. Bloch,

Federal Disability Law and Practice § 1.1 (1984). While the two programs have

different eligibility requirements, “DIB and SSI are available only for those who

have a ‘disability.’” Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). 

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“Disability” means:

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) (DIB); see also 20 C.F.R. § 416.905(a)

(SSI).

The Commissioner’s regulations provide that disability is to be determined

through the application of a five-step sequential analysis:

Step One: If the claimant is currently engaged in

substantial gainful activity, benefits are denied without

further analysis.

Step Two: If the claimant does not have a severe

impairment or combination of impairments, that

“significantly limits ... physical or mental ability to do

basic work activities,” benefits are denied without

further analysis.

Step Three: If plaintiff is not performing substantial

gainful activity, has a severe impairment that is expected

to last for at least twelve months, and the severe

impairment meets or equals one of the impairments listed

in the regulations, the claimant is conclusively presumed

to be disabled regardless of age, education or work

experience.

Step Four: If the claimant is able to perform his or her

past relevant work, benefits are denied without further

analysis.

Step Five: Even if the claimant is unable to perform his

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or her past relevant work, if other work exists in the

national economy that plaintiff can perform, in view of

his or her age, education, and work experience, benefits

are denied.

Carpenter v. Comm’r of Soc. Sec., 2008 WL 4793424 (E.D. Mich. 2008), citing,

20 C.F.R. §§ 404.1520, 416.920; Heston, 245 F.3d at 534. “If the Commissioner

makes a dispositive finding at any point in the five-step process, the review

terminates.” Colvin, 475 F.3d at 730. 

“Through step four, the claimant bears the burden of proving the existence

and severity of limitations caused by her impairments and the fact that she is

precluded from performing her past relevant work.” Jones, 336 F.3d at 474, cited

with approval in Cruse, 502 F.3d at 540. If the analysis reaches the fifth step

without a finding that the claimant is not disabled, the burden transfers to the

Commissioner. Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006). 

At the fifth step, the Commissioner is required to show that “other jobs in

significant numbers exist in the national economy that [claimant] could perform

given [his] RFC and considering relevant vocational factors.” Rogers, 486 F.3d at

241; 20 C.F.R. §§ 416.920(a)(4)(v) and (g).

If the Commissioner’s decision is supported by substantial evidence, the

decision must be affirmed even if the court would have decided the matter

differently and even where substantial evidence supports the opposite conclusion. 

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McClanahan, 474 F.3d at 833; Mullen, 800 F.2d at 545. In other words, where

substantial evidence supports the ALJ’s decision, it must be upheld.

C. Analysis and Conclusions

1. Weighing of Evidence

Plaintiff accuses the ALJ of improperly ignoring evidence supporting a

finding of disability. It is generally recognized that an ALJ “may not cherry-pick

facts to support a finding of non-disability while ignoring evidence that points to a

disability finding.” Smith v. Comm’r of Soc. Sec., 2013 WL 943874, at *6 (N.D.

Ohio 2013), citing Goble v. Astrue, 385 Fed. Appx. 588, 593 (7th Cir. 2010)

(citation omitted). Yet, “the ALJ does not ‘cherry pick’ the evidence merely by

resolving some inconsistencies unfavorably to a claimant’s position.” Id., quoting

Solembrino v. Astrue, 2011 WL 2115872, at *8 (N.D. Ohio 2011). The

undersigned cannot conduct a de novo review of the record evidence, and the

findings of the ALJ are not subject to reversal merely because there exists in the

record substantial evidence to support a different conclusion. Buxton v. Halter,

246 F.3d 762, 772-73 (6th Cir. 2001) (citation omitted); see also Her v. Comm’r of

Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999) (“Even if the evidence could also

support another conclusion, the decision of the [ALJ] must stand if the evidence

could reasonably support the conclusion reached.”) (citation omitted). This is so

because there is a “zone of choice” within which the Commissioner can act,

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without the fear of court interference. Mullen v. Bowen, 800 F.2d 535, 545 (6th

Cir. 1986) (citation omitted). Thus, it is not uncommon in disability cases for

there to be some inconsistencies in the record. It is the duty of the ALJ to resolve

any inconsistencies in the evidence, and the ALJ does not “cherry pick” the

evidence merely by resolving some inconsistencies unfavorably to a claimant’s

position. See Smith, 2013 WL 943874, at *6 (“Rather than describing the ALJ’s

actions as ‘cherry-picking,’ the Sixth Circuit has explained that it could be more

neutrally described as ‘weighing the evidence.’”), citing White v. Comm’r of Soc.

Sec., 572 F.3d 272, 284 (6th Cir. 2009). In the view of the undersigned, that is

precisely what the ALJ did here. He weighed the evidence and made a

determination, supported by substantial evidence, that plaintiff is not disabled.

2. Medical Opinion Evidence

“Medical opinions are statements from physicians and psychologists or

other ‘acceptable medical sources’ that reflect judgments about the nature and

severity of an individual’s impairment(s), including symptoms, diagnosis and

prognosis, what the individual can still do despite the impairment(s), and physical

and mental restrictions.” SSR 06-3p, 2006 WL 2329939, at *2 (2006).

An opinion from a medical source who has examined a

claimant is given more weight than that from a source

who has not performed an examination (a

“nonexamining source”), and an opinion from a medical

source who regularly treats the claimant (a “treating

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source”) is afforded more weight than that from a source

who has examined the claimant but does not have an

ongoing treatment relationship (a “nontreating source”).

Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375 (6th Cir. 2013) (internal

citations omitted).

An ALJ is required to evaluate every medical opinion of record, and set

forth a valid basis for rejecting any. 20 C.F.R. § 404.1527; see Shelman v.

Heckler, 821 F.2d 316, 321 (6th Cir. 1987). The Commissioner may not disregard

opinions of a consulting physician which are favorable to a claimant. See Lashley

v. Sec’y, 708 F. 2d 1048, 1054 (6th Cir. 1983). Moreover, “in weighing medical

evidence, ‘ALJs must not succumb to the temptation to play doctor and make their

own independent medical findings.’” Allen v. Comm’r of Soc. Sec., No. 12-15097,

2013 WL 5676254, at *15 (E.D. Mich. Sept. 13, 2013) (citing Simpson v. Comm’r

of Soc. Sec., 344 Fed. App’x 181, 194 (6th Cir. 2009)) . An ALJ may not

substitute his [or her] own medical judgment for that of a treating or examining

doctor where the opinion of that doctor is supported by the medical evidence. See

Simpson, 344 Fed. App’x at 194; see also Bledsoe v. Comm'r of Social Sec., 2011

WL 549861, at *7 (S.D. Ohio 2011) (“An ALJ is not permitted to substitute her

own medical judgment for that of a treating physician and may not make her own

independent medical findings.”); Mason v. Comm'r of Soc. Sec., 2008 WL

1733181, at * 13 (S.D. Ohio 2008) (“[t]he ALJ must not substitute his own

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judgment for a doctor’s conclusion without relying on other medical evidence or

authority in the record.”). In other words, “[w]hile an ALJ is free to resolve issues

of credibility as to lay testimony, or to choose between properly submitted medical

opinions, the ALJ cannot substitute his [or her] own lay ‘medical’ opinion for that

of a treating or examining doctor.” Beck v. Comm'r of Soc. Sec., 2011 WL

3584468, at *14 (S.D. Ohio 2011). This is so even though the final responsibility

for the RFC determination is an issue reserved to the Commissioner. Allen, 2013

WL 5676254, at *15.

Here, despite plaintiff’s disagreement with the outcome, the ALJ properly

applied the regulatory standards for evaluating medical source evidence. The ALJ

assigned great weight to the findings of both Dr. Sankaran and Dr. Blum, the only

medical opinion evidence of record in this case. Dr. Sankaran, who personally

examined and evaluated plaintiff, found that she had mild obstructive airway

disease that was adequately treated with medication and based this opinion on

objective testing and clinical findings. (Dkt. 8-2. Pg ID 68; Dkt. 8-7, Pg ID 408-

410). The ALJ agreed with Dr. Blum’s opinion that plaintiff could perform light

work, finding that it was substantially supported by and largely consistent with the

record as a whole. (Dkt. 8-2. Pg ID 68; Dkt. 8-3, Pg ID 146-148). Indeed, absent

evidence that the medical opinions were not well-supported by medically accepted

clinical techniques and inconsistent with other substantial evidence in the record,

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the ALJ was required to accept the medical opinions in evidence. See Simpson,

344 Fed. App’x at 194. Plaintiff does not argue, nor does the undersigned’s

review of the record evidence suggest that Dr. Sankaran’s and Dr. Blum’s

opinions were not well-supported by medically accepted clinical techniques or

were inconsistent with other substantial evidence in the record. 

Plaintiff argues that the ALJ erred in giving plaintiff’s GAF score “little

weight,” but the Commissioner “has declined to endorse the [GAF] score for ‘use

in the Social Security and SSI disability programs,’ and has indicated that [GAF]

scores have no ‘direct correlation to the severity requirements of the mental

disorders listings.’” Kennedy v. Astrue, 247 Fed. App’x 761, 766 (6th Cir. 2007)

(citations omitted). Accordingly, any decision to disregard the GAF score is of

little consequence and would not undermine a decision supported by substantial

evidence. See Oliver v. Comm’r of Soc. Sec., 2011 WL 924688, at *4 (6th Cir.

Mar. 17, 2011) (upholding ALJ’s decision not to rely on GAF score of 48 because

it was inconsistent with other substantial evidence in the record and noting that

“GAF score is not particularly helpful by itself”).

3. Credibility

Plaintiff argues that the ALJ erred in concluding that her testimony as to the

intensity and persistence of her symptoms associated with her impairments was

not entirely credible. As the relevant Social Security regulations make clear;

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however, a claimant’s “statements about [her] pain or other symptoms will not

alone establish that [he is] disabled.” 20 C.F.R. §§ 404.1529(a), 416.929. Instead,

the Sixth Circuit has repeatedly held that “subjective complaints may support a

finding of disability only where objective medical evidence confirms the severity

of the alleged symptoms.” See Workman v. Comm’r of Soc. Sec., 105 Fed. Appx.

794, 801 (6th Cir. 2004); see also Moon v. Sullivan, 923 F.2d 1175, 1182-83 (6th

Cir. 1990) (“[T]hough Moon alleges fully disabling and debilitating

symptomology, the ALJ, may distrust a claimant’s allegations . . . if the subjective

allegations, the ALJ’s personal observations, and the objective medical evidence

contradict each other.”).

“It [i]s for the [Commissioner] and his examiner, as the fact finders, to pass

upon the credibility of the witnesses and weigh and evaluate their testimony.”

Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 536 (6th Cir. 2001) (quoting Myers

v. Richardson, 471 F.2d 1265, 1267 (6th Cir. 1972)). As the Sixth Circuit has

held, determinations of credibility related to subjective complaints of pain rest

with the ALJ because “the ALJ’s opportunity to observe the demeanor of the

claimant ‘is invaluable, and should not be discarded lightly.’” Kirk v. Sec’y of

Health & Human Servs., 667 F.2d 524, 538 (6th Cir. 1981) (citation omitted). 

Thus, an ALJ’s credibility determination will not be disturbed “absent compelling

reason.” Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001). The ALJ is not

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required to accept the testimony of a claimant if it conflicts with medical reports,

the claimant’s prior statements, the claimant’s daily activities, and other evidence

in the record. See Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir.

1997). Rather, when a complaint of pain or other symptoms is in issue, after the

ALJ finds a medical condition that could reasonably be expected to produce the

claimant’s alleged symptoms, he must consider “the entire case record, including

the objective medical evidence, statements and other information provided by

treating or examining physicians . . . and any other relevant evidence in the case

record” to determine if the claimant’s claims regarding the level of his pain are

credible. SSR 96-7p, 1996 WL 374186, at *1 (July 2, 1996); see also 20 C.F.R.

§ 404.1529. Consistency between the plaintiff’s subjective complaints and the

record evidence ‘tends to support the credibility of the [plaintiff], while

inconsistency, although not necessarily defeating, should have the opposite

effect.” Kalmbach v. Comm’r of Soc. Sec., 409 Fed. Appx. 852, 863 (6th Cir.

2011). 

Here, the undersigned agrees with the Commissioner that the ALJ’s

conclusions regarding plaintiff’s claims of disabling limitations are supported by

substantial evidence. As the Commissioner points out, the ALJ noted that the

objective clinical tests in the record indicated generally minimal to moderate

abnormalities. (Dkt. 8-2, Pg ID 66). Specifically, the ALJ found that plaintiff’s

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low back pain and leg soreness were not the result of deep vein thrombosis, her

gait and station were stable or improved with prescription pain remedies and there

was no diagnostic imaging findings indicating she had disorders of the spine

consistent with spinal stenosis or other disease processes. Id. Chest x-ray showed

mild hyperaeration changes and an original diagnosis of mild ulcerative colitis was

later changed to irritable bowel syndrome after a colonoscopy showed colonic

mucosa with no evidence of significant pathological changes. Id. The ALJ

determined that plaintiff’s treatment had been relatively conservative in nature,

consisting of prescription and over-the-counter medications, “which have been

relatively effective in controlling her symptoms. (Dkt. 8-2, Pg ID 67). See Wray

v. Comm’r of Social Security, 2014 WL 4410154, at *9 (E.D. Mich. 2014) (ALJ

properly considered conservative nature of treatment for allegedly disabling

impairments in finding claimant not fully credible). 

As permitted by the regulations, the ALJ also considered plaintiff’s

activities of daily living in assessing the credibility of her subjective complaints. 

The ALJ considered her self-reported activities of performing household chores,

preparing simple meals, shopping for groceries, driving a car, watching television,

playing cards, and managing her finances without difficulty. (Dkt. 8-2, Pg ID 67). 

An ALJ may reasonably view such daily activities as inconsistent with subjective

complaints of disabling limitations. 20 C.F.R. § 404.1529(c)(3)(I); see also

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Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 392 (6th Cir. 2004) (recognizing

that in nearly all cases, an evaluation of a claimant’s daily activities is relevant to

the evaluation of subjective complaints and ultimately, to the determination of

disability); Heston, 245 F.3d at 536 (an ALJ may consider claimant’s testimony of

limitations in light of other evidence of claimant’s ability to perform tasks such as

walking, going to church, going on vacation, cooking, vacuuming and making

beds). Thus, it was appropriate for the ALJ to consider plaintiff’s activities of

daily living as one factor in assessing her credibility. 

Finally, the ALJ properly considered plaintiff’s less-than-full compliance

with her medical treatment as a factor in discounting her credibility. Plaintiff

acknowledged that she had stopped taking medications to manage her COPD (e.g.

Atrovent and ProAir) despite their relative effectiveness in treating her symptoms

due to financial limitations. A failure to seek treatment for a period of time may

be a factor to be considered against the plaintiff, unless a claimant simply has no

way to afford or obtain treatment to remedy his condition. McKnight v. Sullivan,

927 F.2d 241, 242 (6th Cir.1990); Gray v. Astrue, 780 F. Supp. 2d 548, 551 (E.D.

Ky. 2011); see Bloe v. Comm’r of Soc. Sec., 2011 WL 1233566, at *8 (E.D. Mich.

2011) report and recommendation adopted, 2011 WL 1188721 (E.D. Mich. 2011)

(“The failure to seek treatment for a period of time may be a factor to be

considered against a claimant...unless a claimant simply has no way to afford or

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obtain treatment to remedy her condition”). If there is evidence that plaintiff could

pay for treatment, then the ALJ may consider plaintiff’s non-compliance with

treatment in the credibility assessment. See SSR 96-7p. Here, the ALJ determined

that plaintiff’s ability to fund on-going nicotine and alcohol habits undermined her

assertion that she could not afford her prescription COPD medications. See Strong

v. Soc. Sec. Admin., 88 Fed. App’x 841, 846 (6th Cir. 2004) (ALJ’s consideration

of amount spent on cigarettes relevant where plaintiff asserted inability to pay for

medical treatment); see also, Sias v. Sec’y of Health & Human Servs., 861 F.2d

475, 480 (6th Cir. 1988) (ALJ determined funds used for tobacco could have been

used for medical treatment). Moreover, while the ability to afford treatment is a

factor used in determining a claimant’s credibility, it is not the only factor to be

considered. McClanahan v. Astrue, 2009 WL 1684488, *6 (M.D. Tenn., June 16,

2009) (While the ALJ found uninsured plaintiff not credible based in large part on

lack of treatment, finding upheld where ALJ expressly considered a variety of

other factors in evaluating credibility of the plaintiff.). In this instance, plaintiff’s

lack of treatment was not a “determinative factor” in assessing plaintiff’s

credibility, but was properly considered by the ALJ. See England v. Comm’r of

Soc. Sec., 2013 WL 1150718, at *4 (E.D. Tenn. March 19, 2013). 

4. VE Testimony

In order for a vocational expert’s testimony in response

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to a hypothetical question to serve as substantial

evidence in support of the conclusion that a claimant can

perform other work, the question must accurately portray

a claimant’s physical and mental impairments.

Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 516 (6th Cir. 2010). The rule that a

hypothetical question must accurately portray all of claimant’s physical and mental

limitations does not divest the ALJ of her obligation to assess credibility and

determine the facts. Griffeth v. Comm’r of Soc. Sec., 217 Fed. App’x 425, 429

(6th Cir. 2007) (citing Redfield v. Comm'r of Soc. Sec., 366 F.Supp.2d 489, 497

(E.D. Mich. 2005)). In fashioning a hypothetical question to be posed to a

vocational expert, the ALJ is required to incorporate only those limitations that she

accepts as credible. Id. (citing Casey v. Sec'y of HHS, 987 F.2d 1230, 1235 (6th

Cir. 1993)). An ALJ is not required to accept a claimant’s subjective complaints,

and can present a hypothetical to the VE on the basis of her own reasonable

assessment of the testimony and other evidence. Id. (citing Jones v. Comm'r of

Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003)).

In the view of the undersigned, the ALJ’s RFC assessment and the related

hypothetical posed to the VE accurately portray plaintiff’s mental and physical

impairments and thus provide substantial evidence to support the ALJ’s nondisability finding. Plaintiff’s assertions to the contrary (that the hypothetical was

deficient because it did not encompass plaintiff’s inability to sit for more than 30

minutes, walk for more than half a block and need to lay down for several hours

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per day) are not supported by the medical evidence of record, nor credible lay

testimony. Additionally, the undersigned agrees with defendant that plaintiff has

waived any argument she may have had that the jobs identified by the VE do not

actually include a sit/stand option by failing to raise this issue at the hearing. See

Hare, 37 Fed. App’x at 777.

2

IV. RECOMMENDATION

For the reasons set forth above, the undersigned RECOMMENDS that

plaintiff’s motion for summary judgment be DENIED, that defendant’s motion for

summary judgment be GRANTED, and that the findings of the Commissioner be

AFFIRMED.

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to file any objections within 14 days of service,

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule

72.1(d). 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. 1981). Filing objections that raise some

In her reply brief, plaintiff, for the first time, asserts that her depression meets or equals 2

Listed Impairment 12.04. Plaintiff does not cite to any evidence of record demonstrating that she

reasonably meets the requirements of listing 12.04. Cf. McPherson v. Kelsey, 125 F.3d 989, 995-

996 (6 Cir. 1997)(Issues adverted to in a perfunctory manner, unaccompanied by some effort at th

developed argumentation, are deemed waived. It is not sufficient for a party to mention a

possible argument in the most skeletal way, leaving the court to put flesh on its bones).

Accordingly, plaintiff’s argument is without merit. 

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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. 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 Local Rule

72.1(d)(2), any objections must be served on this Magistrate Judge.

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,”

etc. Any objection must recite precisely the provision of this Report and

Recommendation to which it pertains. Not later than 14 days after service of an

objection, the opposing party may file a concise response proportionate to the

objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Local Rule 72.1(d). 

The response must specifically address each issue raised in the objections, in the

same order, and labeled as “Response to Objection No. 1,” “Response to Objection

No. 2,” etc. If the Court determines that any objections are without merit, it may

rule without awaiting the response.

Date: August 6, 2015 s/Michael Hluchaniuk

Michael Hluchaniuk

United States Magistrate Judge

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CERTIFICATE OF SERVICE

I certify that on August 6, 2015, I electronically filed the foregoing paper

with the Clerk of the Court using the ECF system, which will send electronic

notification to all counsel of record.

s/Tammy Hallwood 

Tammy Hallwood, Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov

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