UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

JODI CHRISTINE VETTER, 

 Plaintiff, 

v. 

COMMISSIONER OF 

SOCIAL SECURITY, 

 Defendant. 

 

Case No. 2:14-cv-13214 

District Judge Gerald E. Rosen 

Magistrate Judge Anthony P. Patti 

___________________________________/ 

RECOMMENDATION TO GRANT DEFENDANT’S MOTION FOR 

SUMMARY JUDGMENT (DE 13) AND TO DENY PLAINTIFF’S MOTION 

FOR SUMMARY JUDGMENT (DE 11) 

I. RECOMMENDATION: For the reasons that follow, it is 

RECOMMENDED that the Court GRANT Defendant’s motion for summary 

judgment, DENY Plaintiff’s motion for summary judgment, and AFFIRM the 

Commissioner’s decision. 

II. REPORT 

 Plaintiff, Jodi Christine Vetter, brings this action under 42 U.S.C. §§ 405(g) 

and 1383(c)(3) for review of a final decision of the Commissioner of Social 

Security (“Commissioner”) denying her applications for social security disability 

insurance benefits and supplemental security income. This matter is before the 

United States Magistrate Judge for a Report and Recommendation on Plaintiff’s 

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motion for summary judgment (DE 11), the Commissioner’s memorandum in 

opposition and cross motion for summary judgment (DE 13), and the 

administrative record (DE 9). 

A. Background 

 Plaintiff initially filed her applications for benefits on May 4, 2010, alleging 

that she had been disabled since January 1, 2009. (R. at 99.) Her applications 

were denied and Plaintiff sought a de novo hearing before an Administrative Law 

Judge (“ALJ”). ALJ Kathleen H. Eiler held a hearing on July 19, 2011 and issued 

a decision on August 19, 2011 (“the 2011 denial”), concluding that Plaintiff was 

not disabled within the meaning of the Social Security Act. (R. at 73-107.) ALJ 

Eiler determined that Plaintiff had severe impairments of diabetes mellitus with 

neuropathy and migraine headaches. (R. at 101.) She assessed an RFC of light 

work with postural limitations. (R. at 102.) The Appeals Council denied review of 

the 2011 denial and Plaintiff did not appeal. (R. at 112-17.) 

 In the instant action, Plaintiff protectively filed her applications for benefits 

on March 4, 2012, alleging that she has been disabled since August 20, 2011, at 

age 28.1

 (R. at 202.) Plaintiff’s applications were denied. Plaintiff sought a de 

 

1

 During the hearing, there was a brief period of confusion in which the ALJ 

indicated that the alleged onset date was January 1, 2009. (R. at 30.) Plaintiff’s 

applications, however, list an alleged onset date of August 20, 2011 – the day after 

her prior administrative denial – and Plaintiff affirmed that as the onset date during 

her testimony. (R. at 34 and 202.) 

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novo hearing before an Administrative Law Judge (“ALJ”). ALJ Kevin J. 

Detherage held a hearing on February 20, 2013 and subsequently determined that 

Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 13-

71.) On June 16, 2014, the Appeals Council denied Plaintiff’s request for review. 

(R. at 1-4.) ALJ Detherage’s decision became the Commissioner’s final decision. 

Plaintiff then timely commenced the instant action. 

B. Plaintiff’s Medical History 

Plaintiff’s assertions of error are related to her impairments of depression 

and migraine headaches. Plaintiff presented to neurologist Khalil Nasrallah, M.D., 

on November 17, 2011, complaining of frequent headaches. (R. at 311.) Plaintiff 

indicated that the headaches were severe, throbbing, and could last for two days. 

She informed Dr. Nasrallah that she took Excedrin, plus her mother’s Vicodin and 

Ultram. Dr. Nasrallah’s examination showed no focal neurological deficits. (R. at 

311-12.) Dr. Nasrallah prescribed Plaintiff Depakote ER and Medrol Dosepak, 

and instructed her not to take other people’s medications. (R. at 312.) On 

December 29, 2011, Plaintiff indicated that her headaches had improved by 30% 

since beginning Depakote ER, and Dr. Nasrallah increased her dose. (R. at 309.) 

On February 27, 2012, however, Plaintiff indicated that she had been unable to fill 

her prescriptions for two weeks due to an insurance issue, and, as a result, her 

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headaches were severe again. (R. at 307.) Dr. Nasrallah instructed her to pick up 

the Inderal LA while she resolved her insurance issues. (R. at 308.) 

 Plaintiff apparently resolved those issues by April 30, 2012, when she 

reported to Dr. Nasrallah that she had been able to fill her Depakote ER and 

Inderal LA prescriptions, but nevertheless had around twenty headaches over the 

past month. (R. at 355.) A neurological examination was normal. Dr. Nasrallah 

recommended Botox injections for her headaches. (R. at 356.) On June 8, 2012, 

Plaintiff underwent an MRI which showed normal results. (R. at 386.) Plaintiff 

underwent a Botox injection on June 12, 2012, but reported to Dr. Nasrallah one 

month later that her headaches did not improve. (R. at 398.) Dr. Nasrallah 

recommended physical therapy and water exercises. 

 Plaintiff saw nurse practitioner Heather Prior on September 20, 2012. (R. at 

414-422.) Ms. Prior noted that Plaintiff had symptoms consistent with depression. 

(R. at 414.) She prescribed Plaintiff Cymbalta after the results of Plaintiff’s 

depression assessment indicated a provisional diagnosis of severe major 

depression. (R. at 420.) On November 1, 2012, Plaintiff reported that she the 

Cymbalta had helped greatly and that she was “very content.” (R. at 408.) 

 State Agency reviewers, Mark Garner, Ph.D. and Eric VanderHaagen, D.O., 

completed a review of Plaintiff’s records on May 18, 2012 and on June 26, 2012, 

respectively. (R. at 123 and 126.) Dr. Garner opined that Plaintiff had no ongoing 

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treatment for depression and adopted ALJ Eiler’s decision as it pertained to her 

psychological impairments. (R. at 123.) Dr. VanderHaagen did not adopt ALJ 

Eiler’s physical RFC because of new and material evidence of increasing 

headaches. (R. at 126.) He noted, however, that although Plaintiff complained of 

increasing headaches, the medical evidence did not support increased visits to 

health care providers for treatment of these headaches. Both State Agency 

reviewers assessed Plaintiff as not disabled. 

 C. Hearing Testimony 

 1. Plaintiff’s Testimony 

 At the February 20, 2013 hearing, the 29 year-old Plaintiff testified that she 

lived in an apartment with her two sons, aged nine and seven. (R. at 35-36.) She 

averred that she completed schooling through the eleventh grade. (R. at 36.) 

Plaintiff testified that she was the primary caregiver to her two sons. (R. at 49.) 

She indicated that she cooked their meals, did laundry, did household chores, and 

drove them to school, even when she had headaches. (R. at 49-50, 52, and 58.) 

She averred that she took her sons sledding and drove them to soccer and 

basketball games, unless she washaving a headache. (R. at 54-55.) Plaintiff 

testified that she watched about six hours of television per day and loved to read. 

(R. at 51.) She testified that she had trouble sleeping and generally slept five to six 

hours per night. (R. at 51.) 

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 Plaintiff testified that she recently worked as a bartender at the Washington 

Street Pub for just over three months, a job that required her to be on her feet 

frequently. (R. at 36 and 40.) She noted that she was fired from this job because 

she called in too often (four to five times per month). (R. at 37.) Plaintiff averred 

that while she was working, her headaches would cause her to get sick and her legs 

swelled up. (R. at 39.) Plaintiff averred that she might be able to perform a job 

where she was not standing as much as she did during her past employment, unless 

her head began to hurt. (R. at 55.) 

 Plaintiff testified that she previously worked as a home health aide at 

Riverstone, a home for adults with brain injuries. (R. at 40.) According to 

Plaintiff, she received one month of on-the-job training and had to be licensed in 

CPR. (R. at 66.) As a home health aide, Plaintiff cared for the residents by doing 

their laundry, cooking their meals, and bathing them. (R. at 40-41.) She worked 

there for six months, but was fired because she missed work seven to eight times 

per month, left early, and had doctor’s appointments. (R. at 41.) 

 Plaintiff testified that prior to this position she worked as a hotel clerk for 

four years. (R. at 51.) Her job duties included taking reservations, greeting 

people, entering their information in the computer, billing, and doing light 

cleaning. (R. at 63-64.) 

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 Plaintiff testified to severe headaches and diabetes. She indicated that she 

began having severe headaches after her son was born in 2004. (R. at 42.) She 

saw a doctor the same year and was prescribed Imitrex, which did not help because 

it interfered with her diabetes. (R. at 43.) Plaintiff averred that she has about six 

headaches per month that last for a few hours each. (R. at 45.) She indicated that 

she takes Excedrin and puts wash cloths on her forehead to alleviate the pain. (R. 

at 46.) Her neurologist also administered Botox as a headache treatment and that 

her neurologist would like to test for spinal leakage once her insurance approves 

the procedure. (R. at 46.) 

 Plaintiff testified that her diabetes was “out of control” at the time of the 

hearing. (R. at 43.) She averred that she also suffered from neuropathy in her legs 

and rated the pain as a six out of ten. (R. at 44.) 

 Plaintiff testified that she used to get mental health counseling for her 

depression, but that she no longer went because she did not want to get out of bed. 

(R. at 52.) She averred that she took Cymbalta for her depression, but did not 

indicate its effectiveness. (Id.) Plaintiff testified that she had no trouble with her 

memory, no difficulty maintaining attention or concentration, no problems 

understanding information or instructions, making decisions, or getting along with 

other people. (R. at 53-54.) According to Plaintiff, the effects of her depression 

mainly involved her feeling down. (R. at 54.) 

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 Plaintiff testified that she could lift a jug of milk, but that it made her dizzy. 

(R. at 46.) She testified that she could walk about one hundred yards, but that her 

neuropathy caused her legs to hurt. (R. at 47.) She also averred that she could 

stand for twenty minutes, but that her legs started to cramp up if she stood or sat 

for too long. (R. at 47.) Plaintiff testified that she had trouble grasping and 

fingering because of numbness in her fingers, but noted that she could write her 

name, fill out a short form, use a computer keyboard, and use a cell phone. (R. at 

48.) 

 2. Vocational Expert Testimony

 David Holtwater testified as the Vocational Expert (“VE”) at the 

administrative hearing. (R. at 60-71.) The VE testified that Plaintiff’s past 

relevant work as a hotel clerk, DOT 238.367-038, was light and semiskilled with a 

specific vocational preparation (“SVP”)2

 of 4, her work as a home health aide, 

DOT 354.377-014 was medium (but heavy as performed by Plaintiff), and 

semiskilled with an SVP of three. (R. at 64.) The ALJ asked the VE a series of 

hypotheticals. In the first hypothetical, he asked the VE if a hypothetical 

individual with Plaintiff’s work history with a residual functional capacity to do 

 

2

 “The DOT lists a specific vocational preparation (SVP) time for each described 

occupation. Using the skill level definitions in 20 CFR 404.1568 and 416.968, 

unskilled work corresponds to an SVP of 1-2; semi-skilled work corresponds to an 

SVP of 3-4; and skilled work corresponds to an SVP of 5-9 in the DOT.” SSR 00-

4P. 

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unskilled light work, would be able to perform any of Plaintiff’s past relevant 

work, to which the VE answered in the negative. (R. at 66-67.) The VE testified 

that the hypothetical individual could perform other work, including assembler, 

with 11,000 jobs in Michigan and 200,000 nationally; inspector, with 6,000 jobs in 

Michigan and 130,000 nationally; a hand packager, with 9,000 jobs in Michigan 

and 300,000 nationally. (R. at 67.) 

 The ALJ then asked the VE if the first hypothetical individual could perform 

other work if she was limited to occasionally stooping, kneeling, crouching, or 

crawling, could never climb ramps and stairs, and should avoid exposure to 

hazardous conditions. (R. at 68.) The VE testified that such a limitation would 

result in a twelve percent reduction in the number of jobs noted above. 

 Finally, the ALJ asked the VE to assume that individual in the second 

hypothetical was also likely to be absent from work three days per month. (R. at 

69.) The VE testified that such a limitation would preclude competitive 

employment. (R. at 70.) The VE further testified that being off task for more than 

30 minutes per day would be work preclusive. (R. at 70.) 

 D. THE ADMINISTRATIVE DECISION

 On April 25, 2013, the ALJ issued his decision. (R. at 13-22.) As a 

preliminary matter, the ALJ noted that Plaintiff had previously filed for disability 

insurance and supplemental security income on May 4, 2010. (R. at 13.) The 

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claims were denied by ALJ Kathleen H. Eiler on August 19, 2011. The ALJ 

pointed out that ALJ Eiler’s decision was final and binding through August 19, 

2011, but that Plaintiff’s alleged onset date here was August 20, 2011, making the 

principles of res judicata inapplicable to the current applications. (Id.) 

 At step one of the sequential evaluation process, 2 the ALJ found that 

Plaintiff had not engaged in substantially gainful activity since August 20, 2011. 

(R. at 15.) 

 At step two, the ALJ found that Plaintiff had the following severe 

impairments: diabetes mellitus with neuropathy, migraine headaches, and 

depression. (Id.) 

 At step three, the ALJ found that Plaintiff did not have an impairment or 

combination of impairments that met or medically equaled one of the listed 

impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 16-

17.) 

 At step four of the sequential process, the ALJ evaluated Plaintiff’s residual 

functional capacity (“RFC”)3

 and determined that Plaintiff could perform light 

work with the following exceptions: 

 

3 The claimant’s “residual functional capacity” is an assessment of the most the 

claimant can do in a work setting despite his or her physical or mental limitations. 

20 C.F.R. §404.1545(a); Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239 (6th 

Cir. 2002). 

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she can occasionally stoop, kneel, crouch, crawl, and climb ramps or 

stairs, but she can never climb ladders, ropes, or scaffolds; she must 

avoid exposure to hazardous conditions; and she is limited to 

unskilled work. 

 

(R. at 17.) In making this finding, the ALJ noted that he found evidence of record 

to show a change in Plaintiff’s condition since ALJ Eiler’s prior decision and that 

the substantial evidence of record supports the current RFC. (Id.) Specifically, the 

ALJ adopted the physical RFC opined by ALJ Eiler, with an additional limitation 

that Plaintiff be restricted to only unskilled work, due to her depression. 

 Relying on the VE’s testimony, the ALJ determined that Plaintiff was unable 

to perform her past relevant work, but concluded that she was capable of 

performing other jobs that exist in significant numbers in the state and national 

economy, including assembler, with 9,680 jobs in Michigan; inspector, with 5,280 

jobs in Michigan; and hand packager, with 7,920 jobs in Michigan. (R. at 21.) He 

therefore concluded that Plaintiff was not disabled under the Social Security Act. 

(Id.) 

 E. STANDARD OF REVIEW

 The District Court has jurisdiction to review the Commissioner’s final 

administrative decision pursuant to 42 U.S.C. § 405(g). When reviewing a case 

under the Social Security Act, the Court “must affirm the Commissioner’s decision 

if it ‘is supported by substantial evidence and was made pursuant to proper legal 

standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. at 2009) 

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(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. at 2007)); see 

also 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner of Social Security as 

to any fact, if supported by substantial evidence, shall be conclusive . . . .”). Under 

this standard, “substantial evidence is defined as ‘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 

(quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 

1994)). In deciding whether substantial evidence supports the ALJ’s decision, the 

court does “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); 

Rogers, 486 F.3d at 247 (“It is of course for the ALJ, and not the reviewing court, 

to evaluate the credibility of witnesses, including that of the claimant.”). 

 Although the substantial evidence standard is deferential, it is not trivial. 

The Court must “‘take into account whatever in the record fairly detracts from 

[the] weight’” of the Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 

395 (6th Cir. 2002) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 

(1951)). Nevertheless, “if substantial evidence supports the ALJ’s decision, this 

Court defers to that finding ‘even if there is substantial evidence in the record that 

would have supported an opposite conclusion.’” Blakley v. Comm’r of Soc. Sec., 

581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). 

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Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘a 

decision of the Commissioner will not be upheld where the SSA fails to follow its 

own regulations and where that error prejudices a claimant on the merits or 

deprives the claimant of a substantial right.’” Rabbers, 582 F.3d at 651 (quoting 

Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)). 

F. ANALYSIS

In her motion for summary judgment, Plaintiff asserts that the ALJ erred in 

two ways. First, Plaintiff argues that the ALJ’s hypothetical to the VE was not 

supported by substantial evidence. Second, she contends that the ALJ erred in 

concluding that there was new and material evidence of Plaintiff’s migraines since 

the previous denial by ALJ Eiler, but that the ALJ did not incorporate such a 

limitation into Plaintiff’s RFC. The Commissioner opposes Plaintiff’s motion, 

asserting that she is entitled to a grant of summary judgment because substantial 

evidence supports the ALJ’s conclusions. The Undersigned agrees with the 

Commissioner’s assertion and will address each argument in turn. 

 1. Substantial Evidence Supports the ALJ’s Hypothetical Questions 

 to the VE Regarding Plaintiff’s Depression 

 

Plaintiff asserts that the ALJ erred in applying Drummond v. Commissioner 

of Social Security, 126 F.3d 837 (6th Cir. 1997) and Social Security Acquiescence 

Ruling (“AR”) 98-4(6). Specifically, she contends that the 2011 denial stated that 

Plaintiff’s “alleged depression [was] not a medically determinable impairment.” 

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(DE 11 at 11, R. at 101-102.) Because the ALJ in the current case determined that 

Plaintiff’s depression was a severe impairment, Plaintiff maintains that the ALJ in 

some way erred. 

This argument appears to be misplaced. In Drummond, the Sixth Circuit 

held that “[a]bsent evidence of an improvement in a claimant’s condition, a 

subsequent ALJ is bound by the findings of the previous ALJ.” Drummond, 126 

F.3d at 842 (emphasis added). Following Drummond, the Commissioner issued 

AR 98-4(6), which required those adjudicating subsequent disability claims arising 

under the same title as a prior claim to adopt the finding from the final decision of 

the prior claim, absent a finding of new and material evidence, or a change in the 

law. AR 98-4(6), 63 Fed. Reg. 29771-01 (June 1, 1998). Here, the ALJ concluded 

that there was new and material evidence regarding Plaintiff’s depression. He 

adopted the RFC from the 2011 denial, with the addition that Plaintiff was limited 

to unskilled work, thereby imposing a more restrictive RFC than that opined by 

ALJ Eiler. Here, rather than rest upon the principles of res judicata and succumb 

to the temptation to lazily duplicate the prior RFC finding, the ALJ carefully 

accredited the new evidence and adjusted the RFC to reflect greater limitations. 

Drummond and AR 98-4(6) do not appear to be implicated, and Plaintiff does not 

explain how the ALJ erred in his application of the same, much less how this has 

prejudiced her position. 

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Instead, despite her references to Drummond and AR 98-4(6), Plaintiff’s 

primary argument seems to be that the ALJ erred by not including Plaintiff’s 

moderate difficulties with concentration, persistence, and pace (“CPP”) in his 

hypotheticals to the VE. When an ALJ concludes that a claimant does not have the 

RFC to perform his or her past relevant work, the burden shifts to the 

Commissioner to show that Plaintiff “possesses the capacity to perform other 

substantial gainful activity that exists in the national economy.” Varley v. Sec’y of 

Health & Hum. Servs., 820 F.2d 777, 779 (6th Cir. 1987). This requires the 

Commissioner to “make a finding supported by substantial evidence that [the 

claimant] has the vocational qualifications to perform specific jobs.” Howard v. 

Comm’r of Soc. Sec., 276 F.3d 235, 238 (6th Cir. 2002) (internal citations omitted). 

Such substantial evidence “may be produced through reliance on the 

testimony of a vocational expert (VE) in response to a ‘hypothetical’ question, but 

only if the question accurately portrays [the claimant’s] individual physical and 

mental impairments.” Id. “A response to a flawed hypothetical question is not 

substantial evidence and cannot support a finding that work exists which the 

Plaintiff can perform.” Edwards v. Barnhart, 383 F. Supp. 2d 920, 927 (E.D. 

Mich. 2005). 

 In the instant action, the ALJ concluded at step three that, as a result of her 

depression, Plaintiff had moderate difficulties with regard to CPP. (R. at 16.) This 

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finding appears to be based on Plaintiff’s responses in a Function Report, 

indicating that her depression affected her ability to remember, complete tasks, and 

concentrate. (R. at 249.) Plaintiff points out that ALJ Eiler and both of the State 

Agency reviewing physicians declined to propose similar restrictions. (R. at 101-

102, 123, and 127.) 

 Plaintiff relies on Aldrich v. Commissioner of Social Security, No. 14208, 

2013 WL 5372802 (E.D. Mich. Sept. 25, 2013), an unpublished opinion, for the 

proposition that where an ALJ (as opposed to a medical expert) independently 

finds moderate limitations in CPP, he or she is required to incorporate those 

limitations into the hypothetical question. (DE 11 at 13.) The Aldrich holding 

explains that “Courts in this district draw a distinction between cases in which a 

medical expert finds a moderate deficiency in concentration, persistence, or pace 

from those in which the ALJ independently finds such a limitation.” Aldrich, 2013 

WL 5372802 at *4; see also McPhee v. Comm’r of Soc. Sec., No. 11-13399, 2013 

WL 1277889, at *2 (E.D. Mich. Mar. 27, 2013) (“The case law in this district 

distinguishes those cases in which a medical expert has found a moderate 

limitation in CPP, and those where the ALJ found such a limitation. When the ALJ 

has found such a limitation, the ALJ must incorporate these limitations into the 

hypothetical questions.”). Plaintiff also cites to case law finding that a limitation 

of “unskilled work” is not sufficient to account for moderate limitations in CPP. 

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See Bielat v. Comm’r of Soc. Sec., 267 F. Supp. 2d 698, 702 (E.D. Mich. 2003) 

(“In general, a reference to “unskilled, sedentary work” is not sufficient to describe 

deficiencies in concentration.”); see also Edwards v. Barnhart, 383 F. Supp. 2d 

920, 930 (E.D. Mich. 2005) (concluding that a claimant with moderate deficits in 

concentration, persistence, or pace may be unable “to meet quotas, stay alert, or 

work at a consistent pace, even at a simple, unskilled, routine job.”). 

The Commissioner counters that the Sixth Circuit has rejected “the notion 

that a hypothetical question must contain talismanic language,” including a 

recitation that Plaintiff had moderate limitations in CPP. (DE 13 at 14, quoting 

Street v. Comm’r of Soc. Sec., 390 F. Supp. 2d 630, 638 (E.D. Mich. 2005) (citing 

Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001)). The Commissioner maintains 

that the Court should instead consider whether substantial evidence supports the 

ALJ’s RFC assessment. 

As support, the Commissioner cites to a line of pre-Aldrich cases from this 

District that seemingly refute Plaintiff’s assertions, including the published opinion 

by Rosen, J., Bohn-Morton v. Commissioner of Social Security, 389 F. Supp. 2d 

804, 805-07 (E.D. Mich. 2005), emphasizing the need for a case-by-case analysis 

and concluding that limiting a claimant to unskilled work adequately accounted for 

a moderate deficiency in CPP. See also Lewicki v. Comm’r of Soc. Sec., No. 09-

11844, 2010 WL 3905375, at *3 (E.D. Mich. Sept. 30, 2010)(noting that 

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“[d]ecisions in this district reflect the conclusion that a moderate impairment in 

concentration, persistence, and pace does not necessarily preclude simple, routine, 

unskilled work.”); McNamara v. Comm’r of Soc. Sec., No. CIV.A. 11-10331, 2011 

WL 7025855, at *12 (E.D. Mich. Dec. 1, 2011) report and recommendation 

adopted, No. 11-10331, 2012 WL 113541 (E.D. Mich. Jan. 13, 2012) (concluding 

that the ALJ’s hypothetical “need not incorporate a listing of the claimant’s 

medical conditions, so long as the vocational expert’s testimony . . . takes into 

account the claimant’s functional limitations.”); Schalk v. Comm’r of Soc. Sec., No. 

10-CV-13894, 2011 WL 4406824, at *11 (E.D. Mich. Aug. 30, 2011) report and 

recommendation adopted, No. 10-13894, 2011 WL 4406332 (E.D. Mich. Sept. 22, 

2011)(concluding that there is “no bright-line rule requiring remand whenever an 

ALJ’s hypothetical includes a limitation of “unskilled work” but excludes a 

moderate limitation in concentration” and holding that, instead, the “Court must 

look at the record as a whole and determine if substantial evidence supports the 

ALJ’s RFC.”). The Commissioner also asserts that Plaintiff has failed to reference 

any specific work-related mental limitation which the ALJ failed to consider or 

failed to include in the RFC. (DE 13 at 18.) 

The holding in Southworth v. Commissioner of Social Security, No. 12-

12243, 2013 WL 3388946 (E.D.Mich. July 8, 2013) is instructive. In that case, the 

ALJ concluded at step three that the claimant had moderate difficulties in CPP, but 

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“when formulating a residual functional capacity assessment and corresponding 

hypothetical for the vocational expert, the ALJ did not include CPP-specific 

limitations,” other than to limit the claimant to unskilled work. Id. at *15. After 

making the RFC finding, the ALJ noted that “the following residual functional 

capacity assessment reflects the degree of limitation the undersigned has found in 

the ‘paragraph B’ mental function analysis.” Id. at *17. The Court found this 

language persuasive, concluding that it could be construed to mean that “the ALJ 

believed that his ‘moderate’ CPP rating was fully accounted for by the limitations 

in his residual functional capacity assessment. . . .” Id. The Court went on to 

analyze the case under the substantial error framework and concluded that remand 

was not necessary. The ALJ included verbatim language in the instant case, 

indicating that the ALJ believed his moderate CPP rating was accounted for by the 

limitations imposed in his RFC, including limiting Plaintiff to unskilled work. (R. 

at 17.) 

 The Undersigned concludes that the ALJ’s hypothetical to the VE accurately 

portrayed Plaintiff’s mental limitations and substantial evidence supports the 

hypothetical and subsequent RFC. Although Plaintiff’s brief shows some support 

for requiring a specifically worded hypothetical to the VE in cases where an ALJ 

finds a limitation in CPP that is not supported by a medical expert, she points to 

primarily unpublished decisions from this district, and no binding authority on the 

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matter. See, e.g., Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 430 n. 10 

(1996) (each district court judge “sits alone and renders decisions not binding on 

others”). I find more persuasive the published cases such as Bohn Morton, 398 F. 

Supp. 2d at 805-07, which advocate for a case-by-case analysis based on whether 

substantial evidence supports the ALJ’s hypothetical to the VE and corresponding 

RFC. 

 Here, the ALJ’s hypothetical to the VE and corresponding RFC are 

supported by substantial evidence. In his opinion, the ALJ concluded that, per 

Plaintiff’s self-report, her conditions affected her ability to remember, complete 

tasks and concentrate, but that she sometimes finished what she started and could 

follow instructions. (R. at 16.) Plaintiff testified at the hearing that she was having 

no difficulties maintaining attention or concentration, understanding information or 

instructions, or making decisions, and that her depression manifested itself in terms 

of her mood. (R. at 54.) The ALJ’s hypothetical to the VE involved a hypothetical 

individual who could do light work, which was unskilled.3

 

 

3

 The Regulations define unskilled work as: 

work which needs little or no judgment to do simple duties that can be 

learned on the job in a short period of time. The job may or may not 

require considerable strength. For example, we consider jobs unskilled 

if the primary work duties are handling, feeding and off bearing . . . or 

machine tending, and a person can usually learn to do the job in 30 

days, and little specific vocational preparation and judgment are 

needed. A person does not gain work skills by doing unskilled jobs. 

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21

 Plaintiff points to nothing in the record to indicate that the limitation to 

unskilled work does not account for her limitations in CPP, and there is sufficient 

case law in this district to support a finding that a limitation to unskilled work 

reflects a claimant’s moderate deficiencies in CPP. See Bohn-Morton, 389 F. 

Supp. 2d at 805-07 (concluding that a limitation to unskilled work adequately 

reflected Plaintiff’s moderate deficiencies in CPP.); Berkowski v. Comm’r of Soc. 

Sec., 652 F. Supp. 2d 846, 860 (E.D. Mich. 2009) (Declining to remand where the 

plaintiff failed to reference “any specific work-related mental limitation . . . which 

the ALJ failed to consider, failed to include in the RFC” or requiring a “more 

restrictive limitation than that set forth in the RFC.”). If anything, the ALJ 

committed a harmless error – and one that gave the benefit of the doubt to Plaintiff 

at that – by finding such a limitation at step three of the sequential evaluation. See 

S.S.R. 96-8P (S.S.A. July 2, 1996) (“The adjudicator must remember that the 

limitations identified in the “paragraph B” and “paragraph C” criteria are not an 

RFC assessment but are used to rate the severity of mental impairment(s) at steps 2 

and 3 of the sequential evaluation process.”). 

 Substantial evidence in the record, including Plaintiff’s own testimony, 

supports Plaintiff’s ability to perform unskilled work. At the February 20, 2013 

 

20 C.F.R. § 404.1568(a). 

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22

hearing, Plaintiff testified that she had no trouble with her memory, no 

difficulty maintaining attention or concentration, no problems understanding 

information or instructions, and no problems making decisions. (R. at 53-54.) In 

addition, Plaintiff reported on November 1, 2012, that she was “very content” with 

Cymbalta, indicating that her depression (and, presumably, any related effect on 

CPP) was under control. (R. at 408.) The same day, nurse practitioner Heather 

Prior assessed Plaintiff as having “no depression, anxiety, or agitation.” (R. at 

410.) Substantial evidence in the record supports the RFC limiting Plaintiff to 

unskilled work. The Undersigned therefore recommends that the Court decline to 

remand on this basis. 

 2. Substantial Evidence Supports the ALJ’s RFC with Respect 

 to Plaintiff’s Migraines 

 Plaintiff next argues that the ALJ failed to incorporate Plaintiff’s impairment 

of severe migraines into her RFC.4

 Plaintiff notes that State Agency physician, Dr. 

VanderHaagen opined that, since Plaintiff’s previous denial of benefits, there was 

new and material evidence of “increasing headaches.” (DE 11 at 17, R. at 126.) 

According to Plaintiff, it was therefore an error for the ALJ to assess the same RFC 

as ALJ Eiler, with only the change of limiting Plaintiff to unskilled work as 

 

4

 The entirety of this argument takes up one page at the end of her brief, is not 

identified as a separate issue for consideration, and is difficult to follow. 

Nevertheless, I will endeavor to analyze this argument to the extent it is 

discernable. 

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23

addressed above. The Commissioner argues that the ALJ’s RFC assessment was 

appropriate because there is no requirement that every impairment deemed severe 

at step two must be included in the RFC and that the ALJ found Plaintiff’s 

testimony about her headaches to be less than credible. 

 Plaintiff’s argument is unavailing. First, an ALJ is not required to 

incorporate all impairments deemed severe at step two into his or her hypothetical 

to the VE or the corresponding RFC. Griffeth v Comm’r of Soc. Sec., 217 F. App’x 

425, 429 (6th Cir. 2007). A step two finding of severity is merely a “de minimis 

hurdle,” which “enable[s] the Commissioner to screen out ‘totally groundless 

claims.’” Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988); Griffeth, 217 F. 

App’x at 428 (quoting Farris v. Sec’y of Health & Hum. Servs., 773 F.2d 85, 89 

(6th Cir. 1985)). “A claimant’s severe impairment may or may not affect his [or 

her] functional capacity to do work.” Yang v. Comm’r of Soc. Sec., No. 00-10446-

BC, 2014 WL 1765480, at *5 (E.D. Mich. July 14, 2004). Even after determining 

that an impairment is severe at step two, the ALJ retains an obligation to “assess 

credibility and determine the facts” as to the claimant’s physical and mental 

limitations. Redfield v. Comm’r of Soc. Sec., 366 F.Supp. 2d 489, 497 (E.D. Mich. 

2005). 

 Here, the ALJ concluded at step two that Plaintiff’s migraines were a severe 

impairment. (R. at 15.) He went on to summarize Plaintiff’s testimony that she 

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24

experienced debilitating headaches about six times per month. (R. at 18.) The 

ALJ then concluded that Plaintiff’s testimony was not entirely credible for a 

number of reasons. (Id.) First, he pointed out that Plaintiff received 

unemployment benefits from her alleged onset date until the end of 2012, which 

required her to certify that she was available for and seeking full-time work, but 

testified at the hearing that she was unable to perform work due to her debilitating 

headaches. (R. at 19.) I entirely agree with the ALJ’s finding that “the claimant’s 

willingness to tell one government agency that she is able to work full-time to 

collect benefits while simultaneously alleging to another government agency that 

she is unable to work full-time in an attempt to collect benefits raises serious 

doubts about her overall veracity.” (R. at 18-19.) See Workman v. Comm’r of 

Soc.Sec., 105 F. App’x 794, 801-02 (6th Cir. 2004) (concluding that the ALJ 

appropriately discounted a claimant’s credibility where the claimant 

simultaneously filed for unemployment benefits, noting that there was “no 

reasonable explanation for how a person can claim disability benefits under the 

guise of being unable to work, and yet file an application for unemployment 

benefits claiming that he [or she] is ready and willing to work.” (internal 

quotations omitted)). Plaintiff appears to be “blowing hot and cold as the occasion 

demands [or] having one’s cake and eating it too” in her attempts to collect 

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25

benefits from two government agencies for conflicting reasons. See Reynolds v. 

CIR, 862 F.2d 469, 472 (6th Cir. 1988) (internal citations omitted)). 

 Second, the ALJ noted the lack of consistency between her allegations of 

severity and objective medical evidence. In support of this assertion, the ALJ 

pointed to a January 3, 2013 record of a normal neurological examination 

performed by Khalil Nasrallah, M.D., at Bay Regional Neurosciences. (R. at 423.) 

At the same visit, Plaintiff reported that she was “feeling better lately,” and that her 

headaches were under better control following a course of physical therapy. (Id.) 

The ALJ also noted that Plaintiff “engages in significant activities on a regular 

basis, which further undermines her allegations of disability,” even when she was 

experiencing headaches. (R. at 19.) For example, she takes her two sons to 

school, picks them up, cooks for them, does their laundry, washes dishes, cleans 

the house, drives, goes shopping, watches television, reads, plays with her children, 

and spends time with others twice a week.5

 (R. at 245-248.) 

 

5

 She also reported that her diabetes was better controlled, although her leg pain 

increased after standing on her feet or working all day, and that she did not take 

her insulin as directed, nor did she complete her required lab work. (R. at 401 and 

414.) See Sias v. Sec’y of Health & Hum. Servs., 861 F. 2d 475, 480 (6th Cir. 

1988) (concluding that the ALJ properly discounted the claimant’s credibility 

where he failed to follow prescribed treatment); S.S.R. 96-7p, 1996 WL 374186, at 

*8 (noting that “the individual’s statements may be less credible if . . . the medical 

reports or records show that the individual is not following the treatment as 

prescribed and there are no good reasons for this failure.”). In addition, Plaintiff 

denied having any depression and reported that her pain symptoms have improved. 

(R. at 406 and 408.) 

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26

 Plaintiff relies on Clifford v. Apfel, 227 F.3d 863, 871 (7th Cir. 2000) for the 

proposition that the ALJ “cannot summarily reject medical evidence without 

explanation and substitute his [or her] own judgment for that of a treating or even a 

consulting physician.” (DE 11 at 18.) Plaintiff asserts that the ALJ failed to 

explain the inconsistency between Dr. VanderHaagen’s opinion that there was 

“new and material evidence of migraine headaches” and the ALJ’s ultimate RFC, 

which was largely similar to the one opined by ALJ Eiler. (R. at 126.) However, 

the ALJ did not summarily reject medical evidence and substitute his own 

judgment for a treating or consulting physician. As noted above, the ALJ 

concluded that Plaintiff’s testimony as to her migraines was not entirely credible. 

Furthermore, the ALJ gave “great weight” to Dr. VanderHaagen’s opinion, which 

noted that Plaintiff’s allegations that her headaches were increasing in frequency 

were not supported by the medical evidence of record. (R. at 126.) He found that 

medical evidence supported only a limited range of lighter work with postural and 

environmental limitations (R. at 124-127), and no other medical source imposed 

greater limitations. Plaintiff points to nothing to the contrary here, and it was 

appropriate for the ALJ to rely on these findings. See Johnson v. Comm’r of Soc. 

Sec., No. 11-14655, 2013 WL 812081, at *6 (E.D. Mich. Feb. 12, 2013) 

(concluding that, where “the record [did] not include an opinion from a treating 

source, or an examining source . . . identifying limitations greater than those found 

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27

by the state agency consultant,” and where Plaintiff did not point to any evidence 

to contradict the findings of the stage agency consultant, the ALJ was entitled to 

rely on the findings of the state agency consultant). Accordingly, Plaintiff has not 

met her burden to show that the ALJ improperly failed to incorporate evidence of 

her migraine headaches into her RFC. 

G. CONCLUSION

 In sum, from a review of the record as a whole, the Undersigned concludes 

that substantial evidence supports the ALJ’s decision denying benefits. 

Accordingly, it is RECOMMENDED that the Court DENY Plaintiff’s motion for 

summary judgment, GRANT Defendant’s motion for summary judgment, and 

AFFIRM the Commissioner of Social Security’s decision. 

III. PROCEDURE ON OBJECTIONS

 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 & 

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that 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. Sec’y of Health & 

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28

Human Servs., 932 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of 

Teachers Local 231, 829 F.2d 1370, 1273 (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,” and “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); E.D. Mich LR 

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. 

Dated: June 16, 2015 s/Anthony P. Patti 

 Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

 

Certificate of Service 

I certify that a copy of this document was sent to parties of record on Tuesday, 

June 16, 2015, electronically and/or by U.S. Mail. 

 

s/Michael L. Williams 

 Case Manager to the 

 Honorable Anthony P. Patti 

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