UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MARY DENISE SHARP,

Plaintiff,

v.

COMMISSIONER OF

SOCIAL SECURITY,

Defendant.

Case No. 5:14-cv-12829

Magistrate Judge Anthony P. Patti

___________________________________/

OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR

REMAND PURSUANT TO SENTENCE FOUR (DE 12), GRANTING

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (DE 15) and

AFFIRMING THE DECISION OF THE COMMISSIONER OF SOCIAL

SECURITY

I. OPINION

Plaintiff, Mary Denise Sharp, 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 application for supplemental security

income (SSI) benefits. Currently before the Court is Plaintiff’s motion for remand

pursuant to Sentence Four (DE 12), the Commissioner’s cross motion for summary

judgment (DE 15), Plaintiff’s reply (DE 16) and the administrative record (DE 10). 

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The parties have consented to my authority. See DEs 17, 18 and 19. A

hearing was noticed for September 17, 2015. On that date, Plaintiff’s counsel

(John M. Morosi) and local government counsel (AUSA Laura A. Sagolla)

appeared in person, while AUSA Michael L. Henry appeared by telephone. At the

conclusion of the hearing, I took the motions under advisement. Having

considered the motion papers and oral arguments of counsel for the parties, the

Court DENIES Plaintiff’s motion for remand pursuant to Sentence Four (DE 12),

GRANTS Defendant’s motion for summary judgment (DE 15) and AFFIRMS the

decision of the Commissioner of Social Security, for the reasons stated below 

A. Background

Plaintiff filed her application for SSI benefits on March 8, 2011, alleging

that she has been disabled since January 1, 2001, at age 33. (R. at 166-174.) 

Plaintiff alleges disability as a result of fibromyalgia, back problems, carpal tunnel

syndrome in her hands, arthritis, heart condition, pain, depression, asthma and

chronic obstructive pulmonary disease (COPD). (R. at 188-196.) Plaintiff’s

application was denied initially on September 13, 2010 and again on August 24,

2011. (R. at 90-97, 98, 114-117; R. at 99-112, 113, 118-121.) 

On September 30, 2011, Plaintiff sought a de novo hearing before an

Administrative Law Judge (“ALJ”). (R. at 122-124.) ALJ JoErin O’Leary held a

hearing on October 1, 2012, at which Plaintiff and Witness James Sharp

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(Plaintiff’s husband) appeared and Vocational Expert (VE) Toni McFarland

testified. (R. at 47-89.) On March 21, 2013, ALJ O’Leary determined that

Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 10-

46.) 

On May 13, 2013, Plaintiff requested review of the hearing decision. (R. at

8-9.) On June 30, 2014, the Appeals Council denied Plaintiff’s request for review. 

(R. at 1-5.) Thus, ALJ O’Leary’s decision became the Commissioner’s final

decision. 

Plaintiff then timely commenced the instant action on July 21, 2014, via

counsel. (DE 1.) Plaintiff is represented here by attorney John M. Morosi.1

 

B. The Administrative Decision2

1 Plaintiff was not represented by an attorney at the October 1, 2012 hearing. R. at

47-89. On May 15, 2013, attorney John M. Morosi submitted a brief on Plaintiff’s

behalf to the Appeals Council. R. at 301-313. Attorney Morosi also filed the July

21, 2014 complaint in this case. DE 1. 

2 Social Security Regulations require ALJs to resolve a disability claim

through a five-step sequential evaluation of the evidence. See 20 C.F.R.

§404.1520(a)(4). Although a dispositive finding at any step terminates the

ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), if fully

considered, the sequential review considers and answers five questions:

1. Is the claimant engaged in substantial gainful activity?

2. Does the claimant suffer from one or more severe impairments?

3. Do the claimant’s severe impairments, alone or in combination,

meet or equal the criteria of an impairment set forth in the Commissioner’s

Listing of Impairments, 20 C.F.R. Subpart P, Appendix 1?

4. Considering the claimant’s residual functional capacity, can the

claimant perform his or her past relevant work?

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ALJ O’Leary rendered her decision on March 21, 2013. (R. at 10-46.) At

Step 1, the ALJ found that Plaintiff had not engaged in substantial gainful activity

since February 28, 2011,3

 the date of her application. (R. at 15.) 

At Step 2, the ALJ found that Plaintiff had the following severe

impairments: chronic pain syndrome, fibromyalgia, myalgias, migraine headaches,

mild cervical degenerative disc disease, bilateral carpal tunnel syndrome, bilateral

epicondylitis, asthma, status-post three myocardial infarctions, sensorineural

hearing loss, obesity, and dysthymia. (R. at 15-18.) 

At Step 3, the ALJ found that Plaintiff does not have an impairment or

combination of impairments that meets or medically equals the severity of one of

the listed impairments. (R. at 18-22.) 

At Step 4, after an incredibly thorough review of the Plaintiff’s medical

records, the ALJ found that Plaintiff has the residual functional capacity (RFC) to

perform sedentary work with the following exceptions: she is able to frequently,

but not constantly, perform handling and fingering; should not climb ladders, ropes

5. Considering the claimant’s age, education, past work experience,

and residual functional capacity, can the claimant perform other work

available in the national economy?

See 20 C.F.R. §404.1520(a)(4); see also Hensley v. Astrue, 573 F.3d 263, 264

(6th Cir. 2009); Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).

3 In the instant case, Plaintiff filed her application on March 8, 2011. (R. at 166-

174.) This report assumes the discrepancy is a typographical error. 

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or scaffolds, kneel, or crawl; must avoid extremely loud environments to preserve

remaining hearing, defined as environments such as a foundry; must avoid

unprotected heights or dangerous moving mechanical parts; must avoid

concentrated exposure to dusts, odors, fumes, and other pulmonary irritants; and is

limited to simple, routine tasks. (R. at 22-38.) Moreover, the ALJ found that

Plaintiff is unable to perform any past relevant work. (R. at 38-39.) 

At Step 5, having considered Plaintiff’s age, education, work experience,

and RFC, the ALJ found that there are jobs that exist in significant numbers in the

national economy that Plaintiff can perform. (R. at 39-40.)

C. Issues and Sub-Issues

In her motion for remand, Plaintiff asserts that the ALJ erred in three ways,

namely: (1) By failing to address her moderate limitations in consistency,

persistence or pace (CPP) in either the hypothetical question posed to the VE

and/or the RFC; (2) By failing to apply the Treating Source Rule; and (3) By

failing to give Plaintiff, as a pro se litigant, the opportunity to (a) object to the

VE’s credentials and/or voir dire the VE, and (b) cross-examine the VE. 

D. 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

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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)

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 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. N.L.R.B., 296 F.3d

384, 395 (6th Cir. 2002) (quoting Universal Camera Corp. v. N.L.R.B., 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

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the record that would have supported an opposite conclusion.’” Blakley v. Comm’r

of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d

270, 273 (6th Cir. 1997)). 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)).

E. Analysis

1. The ALJ adequately addressed Plaintiff’s CPP. 

Plaintiff’s first statement of error is that the ALJ’s RFC assessment and

hypothetical to the VE do not address Plaintiff’s moderate limitations in

concentration, persistence or pace. (See DE 12 at 14-17.).4

 By way of background,

the SSA has identified “four broad functional areas in which we will rate the

degree of your functional limitation: Activities of daily living; social functioning;

concentration, persistence, or pace; and episodes of decompensation.” 20 C.F.R. §

404.1520a(c)(3) (emphasis added). Moreover:

4 At the outset, I note the ALJ found that “the claimant’s statements concerning the

intensity, persistence and limiting effects of these symptoms are not entirely

credible for the reasons explained in this decision.” (R. at 23.) Plaintiff does not

challenge this credibility determination in her January 8, 2015 motion. (See DE 12

at 8, 13.)

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When we rate the degree of limitation in the first three functional

areas (activities of daily living; social functioning; and concentration,

persistence, or pace), we will use the following five-point scale:

None, mild, moderate, marked, and extreme. When we rate the degree

of limitation in the fourth functional area (episodes of

decompensation), we will use the following four-point scale: None,

one or two, three, four or more. The last point on each scale represents

a degree of limitation that is incompatible with the ability to do any

gainful activity.

20 C.F.R. § 404.1520(c)(4) (emphasis added). 

At Step 3, ALJ O’Leary determined that Plaintiff has moderate difficulties

with regard to concentration, persistence or pace. Here, the ALJ relied upon

several items, including certain pages of Dr. Deskovitz’s August 9, 2011

evaluation (R. at 493-498) and some notes from Gregory J. Dardas, M.D. (R. at

625-626 (December 5, 2011), 628-629 (September 19, 2011)). (R. at 21.) The

ALJ referred to each of these at Step 4. See, i.e., R. at 27-28, 33-34, 35-36. 

Ultimately, as set forth above, ALJ O’Leary’s RFC determination included a

limitation of “simple, routine tasks.” (R. at 22-38.)

Nonetheless, Plaintiff claims that the ALJ “totally ignored” and “completely

failed to address” her moderate difficulties with regard to CPP when questioning

the VE and determining Plaintiff’s RFC, “despite a rather exhaustive review of the

medical record....” DE 12 at 15, 16.

a. Hypothetical questions to the VE

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“In order for a vocational expert's testimony in response 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). See also Potter v. Commissioner of Social Sec., 223 F.App’x

458, 464 (6th Cir. 2007) (quoting Varley v. Secretary of Health & Human Services,

820 F.2d 777, 779 (6th Cir.1987)); Smith v. Halter, 307 F.3d 377, 378 (6th Cir.

2001).

ALJ O’Leary’s October 1, 2012 hypothetical to VE McFarland included a

limitation of “simple, routine tasks.” R. at 85. According to Plaintiff, the ALJ’s

hypothetical limitation of “simple, routine tasks[,]” does not address her moderate

CPP impairments. DE 12 at 15, R. at 85. Here, Plaintiff refers to “physical

limitations and mental limitations,” including her testimony about chronic pain,

frequently laying down and napping, and an inability to function on “bad days.” 

DE 12 at 15; see also, i.e., R. at 74, 75, 76. In addition, Plaintiff contends the

medical record is “replete with references” to diagnostic testing and diagnoses of

chronic pain syndrome, fibromyalgia and myalgia, each of which the ALJ found to

be a severe impairment, yet fails to identify these references. DE 12 at 15-16, R. at

15. At oral argument, her counsel shifted the focus squarely on to the physical side

of CPP. When asked for record support, he pointed to Dr. Herdzik’s report at R.

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505, which is admittedly based upon Plaintiff’s own reporting, rather than

objective diagnostic testing, and was permissibly rejected as such by the ALJ. 

The Commissioner points out that the ALJ assigned great weight to Dr.

Hill’s August 23, 2011 opinion, which included that Plaintiff retained the mental

residual capacity to perform one and two step tasks on a sustained basis (R. at 35,

110), and acknowledged Dr. Dardas’s September 19, 2011 and December 5, 2011

evaluations, which included that attention and concentration were unremarkable

and fund of knowledge was normal (R. at 34, 625, 628). See DE 15 at 15. 

In reply, setting aside an alleged improper reliance by the ALJ upon the

opinion of state examiner Wayne Hill, Ph.D., Plaintiff contends that the ALJ

focused on the mental limitations and overlooked CPP limitations associated with

pain and fatigue. (DE 16 at 2-3.) Again, Plaintiff urges that there “is

overwhelming evidence of record supporting CPP limitations associated with [her]

pain and fatigue[,]” yet fails to supply anything more than a reference to the single

page of Dr. Herdzik’s report (R. at 505), based largely on Plaintiff’s self-reporting.

Here, Plaintiff refers to Ealy and Edwards v. Barnhart, 383 F.Supp.2d 920, 930

(E.D. Mich. 2005) (Friedman, C.J., accepting and adopting report and

recommendation of Pepe, M.J.) (“while finding that Plaintiff has a ‘moderate

limitation in her ability to concentrate, persist and keep pace,’ the ALJ's limitations

were with co-workers, supervisors and the public, and to ‘jobs entailing no more

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than simple, routine, unskilled work’[]. While close, these are not sufficient, and

do not fully convey Plaintiff's limitations in concentration to the VE.”).5

 Plaintiff

contends that, by ignoring the impact of her physical impairments on her CPP, ALJ

O’Leary “understated the restriction applicable to the Plaintiff and thus fashioned

an inadequate RFC[,]” which rendered the VE’s opinion irrelevant. DE 16 at 3.

However, as this Court has recognized: “The court in Smith v. Halter, 307

F.3d 377, 379 (6th Cir.2001), rejecting the notion that a hypothetical question must

contain talismanic language, found that a question was sufficient provided that it

encompassed the plaintiff's relevant limitations: ‘The ALJ went beyond [a] simple

frequency assessment to develop a complete and accurate assessment of Smith's

mental impairment.’” Street v. Commissioner of Social Security, 390 F.Supp.2d

630, 638 (E.D. Mich. 2005) (Edmunds, J., accepting report and recommendation of

Whalen, M.J.).

For the reasons discussed in more detail below, Plaintiff has not shown that

the hypothetical question posed to the VE – specifically the limitation of “simple,

routine tasks” - inaccurately portrays Plaintiff’s physical and mental impairments;

therefore, the VE’s response may constitute substantial evidence in support of the

ALJ’s determination that there is work Plaintiff can perform. 

5 “Plaintiff may be unable to meet quotas, stay alert, or work at a consistent pace,

even at a simple, unskilled, routine job. *** Each of these jobs seems to require a

degree of sustained concentration, persistence and pace. ***Thus, the ALJ's

hypothetical question is insufficient.” Edwards, 383 F.Supp.2d at 930-931.

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b. RFC determination 

“SSR 96–8p requires an ALJ to individually assess the exertional (lifting,

carrying, standing, walking, sitting, pushing, and pulling), and non-exertional

(manipulative, postural, visual, communicative, and mental functions) capacities of

the claimant in determining a claimant's RFC. Although SSR 96–8p requires a

“function-by-function evaluation” to determine a claimant's RFC, case law does

not require the ALJ to discuss those capacities for which no limitation is alleged.” 

Delgado v. Commissioner of Social Sec., 30 F.App’x 542, 547 (6th Cir. 2002).

As with the hypothetical posed to the VE, the Step 4 RFC assessment

includes a limitation of “simple, routine tasks.” (R. at 85, R. at 22). Citing

Edwards and Ealy, Plaintiff maintains that the ALJ’s findings of moderate

difficulties with regard to concentration, persistence or pace “would equal a

determination that [Plaintiff] would often experience difficulties sustaining pace.” 

DE 12 at 17 (emphasis added).

However, “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. Rather, this Court must look at the record as a whole

and determine if substantial evidence supports the ALJ's RFC.” Schalk v.

Commissioner of Social Sec., No. 10-13894, 2011 WL 4406824, *11 (E.D. Mich.

Aug. 30, 2011) (report and recommendation of Michelson, M.J.) (citations

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omitted) See also Lewicki v. Comm’r of Soc. Sec., No. 09-11844, 2010 WL

3905375, *2-*3 (E.D. Mich. Sept. 30, 2010) (Ludington, J., adopting report and

recommendation of Hluchaniuk, M.J.);6

 Swadling v. Astrue, No. 11-10421, 2012

WL 3030154, *6 (E.D. Mich. June 26, 2012) (report and recommendation of

Majzoub, M.J.),7 Carlin v. Commissioner of Social Sec., No. 12-10222, 2013 WL

639338, 7 (E.D. Mich. Jan. 11, 2013) (report and recommendation of Randon,

M.J.).8

In support of her position that her severe impairments negatively impact her

ability to sustain persistence and pace for an eight-hour work day, regardless of

mental health, Plaintiff points to the standing and walking limitations referenced in

the September 26, 2012 Medical Source Statement by Dr. Monika Herdzik, M.D.,

6 “There may be cases where such moderate limitations preclude the performance

of even some simple, unskilled tasks. Plaintiff does not, however, explain why the

facts of this particular case require a more detailed hypothetical question to

adequately account for his own moderate limitations in concentration, persistence,

or pace.” Lewicki, 2010 WL 3905375 at 3.

7 “While Plaintiff does point to cases from this district that appear to support his

argument that an ALJ must craft a hypothetical question that factors in moderate

limitations in concentration, persistence, or pace, courts in this district have also

held that even when an ALJ does not explicitly address moderate limitations in

concentration, persistence, or pace, and only references “unskilled work,” remand

is not necessary when substantial evidence supports the hypothetical question.” 

Swadling, 2012 WL 3030154 at 6.

8 “In this case, the ALJ's RFC limitation of simple, routine work accurately reflects

state reviewing psychologist Dr. Judy Strait's opinion that Plaintiff was

‘moderately’ limited with respect to concentration, persistence and pace.” Carlin,

2013 WL 639338 at 7.

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including that Plaintiff has “chronic pain” and “cannot continue a task without

taking a break.” (DE 16 at 3, R. at 500-505.) Plaintiff argues that these limitations

were “specifically stated” by Dr. Herdzik; however, and contrary to this assertion,

the physician in no fewer than four places noted that these limitations were “Per

patient.” She also did not identify any objective, diagnostic tests which confirmed

them, even where the form specifically asks, “What are the medical findings that

support this assessment?” (R. at 501, 503-505) (emphasis added). Notably, the

RFC and the hypothetical question posed to the VE fully adopt Dr. Herdzik’s

statements regarding postural activities and environmental limitations. (R. at 22,

38, 84-85, 503-504.) 

However, setting aside the weight assigned to Dr. Herdzik’s September 26,

2012 assessment, which is addressed below, I am instructed and persuaded by the

Sixth Circuit’s clear distinctions articulated in Smith-Johnson v. Commissioner of

Social Sec., 579 F.App’x 426 (6th Cir. 2014), which also apply here:

Smith–Johnson's first challenge concerns her concentration,

persistence, or pace. She relies on Ealy, 594 F.3d 504, to support her

argument that more specific limitations should have been included in

the hypothetical to the VE. Yet, Ealy is distinguishable from this case.

In Ealy, the claimant's doctor limited him to “simple, repetitive tasks

[for] [two-hour] segments over an eight-hour day where speed was not

critical.” Ealy, 594 F.3d at 516. In that RFC assessment, however, the

ALJ included only a limitation to “simple repetitive tasks and

instructions in nonpublic work settings.” Id. That RFC finding was

included in the hypothetical to the VE. Id. This court held that the

RFC assessment and the hypothetical did not adequately reflect the

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claimant's limitations because it truncated the doctor's specific

restrictions. Id.

Here, the limitation to simple, routine, and repetitive tasks adequately

conveys Smith–Johnson's moderately-limited ability “to maintain

attention and concentration for extended periods.” Unlike in Ealy, Dr.

Kriauciunas [state agency consultant] did not place any concrete

functional limitations on her abilities to maintain attention,

concentration, or pace when performing simple, repetitive, or routine

tasks. Instead, Dr. Kriauciunas plainly determined that

Smith–Johnson could perform simple tasks on a “sustained basis,”

even considering her moderate limitations in maintaining

concentration and persistence for “extended periods.” In other words,

the limitation to simple tasks portrays the tasks that she can perform

without being affected by her moderate limitations. The ALJ thus did

not fail to include a restriction on her ability to maintain

concentration, persistence, or pace while performing simple tasks, and

he further reduced the required attention and concentration by

restricting her to routine and repetitive tasks.

Smith-Johnson, 579 F.App’x at 436 -437 (emphasis added). 

Likewise, in the case at bar, ALJ O’Leary assigned great weight to the

assessment of Dr. Hill, who had opined that Plaintiff “retains the mental residual

capacity to perform one and two step tasks on a sustained basis.” (R. at 35, 110

(emphasis added)). Moreover, Gregory J. Dardas, M.D., apparently a neurologist,

noted on December 5, 2011 and again on September 19, 2011 that Plaintiff’s

attention and concentration were “unremarkable,” each time further observing that

her “fund of knowledge is normal.” (R. at 625, 628.) Additionally, with respect to

alleged CPP deficiencies which are physical (as opposed to mental) in nature,

Plaintiff had multiple opportunities in her briefing and at oral argument to point out 

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definitive record support for her claimed disability in this area, in response to

which she repeatedly referred to page 505 of the record, a portion of Dr. Herdzik’s

report which was justifiably discounted by the ALJ for a lack of objective medical

evidence, as it was based largely upon Plaintiff’s own subjective self-reporting.

Her counsel also made unspecified reference to treatment provided by Drs.

Binsfield and Duff, without record citation and without demonstrating how these

support her claimed CPP disability. The ALJ appropriately considered these

records for what they were worth. 9 

Furthermore, there is sufficient case law in this district to support a finding

that a limitation to unskilled work does reflect a claimant’s moderate deficiencies

in CPP. See Bohn-Morton v. Commissioner of Social Sec., 389 F. Supp. 2d 804,

805-07 (E.D. Mich. 2005) (Rosen, J.) (concluding that a limitation to unskilled

9 See Williamson v. Aetna Life Ins. Co., 481 F.3d 369, 379 (6th Cir. 2007) (“Rule 56 does not impose upon

the district court a duty to sift through the record in search of evidence to support a

party's opposition to summary judgment.... Rule 56 allocates that duty to the

opponent of the motion, who is required to point out the evidence, albeit evidence

that is already in the record, that creates an issue of fact.”) (quoting Skotak v.

Tenneco Resins, Inc., 953 F.2d 909, 916 n. 7 (5th Cir.1992)). Nevertheless, the

Court has reviewed those portions of the record referenced by the ALJ with respect

to those two physicians (R. at 35-37), which reveal that Dr. Duff treated Plaintiff in

the emergency room for sinus related ailments in 2011 (R. at 561- 576) and that

Dr. Binsfield performed right and left carpal tunnel release surgeries on her in 2008

and 2012, respectively, with seemingly good prognoses. (R. at 545, 559-560.)

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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) (opinion and

order of Duggan, J., regarding report and recommendation of Majzoub, M.J.)

(declining to remand where the plaintiff failed to reference “any specific workrelated 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.”). Courts in this district have eschewed an inflexible, per se rule that an RFC

finding must expressly refer to the claimant’s moderate limitations in CPP, and

have instead advocated a “case-by-case determination” as to whether the ALJ’s

findings have been appropriately “harmonized and incorporated into” the RFC and

hypothetical questioning of the VE. Bohn-Morton at 806-807. 

 Here, the ALJ thoroughly analyzed the record and made extensive

observations about the plaintiff’s ability to maintain CPP, noting that, “she was

able to care for personal needs without reminders, drive, play cards, shop in stores,

pay bills, count change... use a money order” and care for her grandmother. (R. at

21 and citations contained therein.) The ALJ further noted that no difficulties in

pace and persistence were alleged on this application – while acknowledging that

difficulties in concentration were – and that in her prior application, Plaintiff had

also reported being “able to drive, shop, handle money, and play cards or dice

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games, which are activities that require at least a fair amount of concentration,

persistence, or pace.” (Id.)10 

To summarize, ALJ’s RFC findings were well supported by the record. The

ALJ did find that Plaintiff had moderate limitations in CPP, and these were

harmonized and incorporated into the RFC and in the hypothetical to the VE. (R. at

17, 21-22, 84-85.) To the limited extent that Plaintiff relies upon any medical

records which would allegedly demonstrate a more severe CPP limitation, these

records are lacking in objective, diagnostic evidence and rely upon the claimant’s

self-reporting. The ALJ found that Plaintiff’s credibility was wanting, and that

finding has not been challenged on appeal. (R. at 35.) The ALJ’s attribution of

diminished weight to such medical opinions, as discussed below, was thus

appropriate, and in any case well within the ALJ’s authority and discretion. Thus,

there is substantial evidence for ALJ O’Leary’s RFC determination that Plaintiff is

limited to “simple, routine tasks,” and this determination adequately addressed any

10 Moreover, while State of Michigan Disability Determination Service report by

Mark A. Deskovitz, Ph.D., mentions that Plaintiff would have “difficulty” in

sustaining work as of August 2011, and mentions difficulty on “some” memory

tasks and “some difficulty sleeping recently,” it does not state that she is unable to

work, and does note that on a typical day she is able to “wake up, collect the eggs

from the chickens, feed the rabbits, [and ] feed the dogs....” (R. at 493-498.) 

Likewise, her MidMichigan Health record from July 3, 2012, discussing chest pain

and an apparent asthma or panic attack notes that, “Her symptoms do not limit

her activities.” (R. at 591.)

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limitations in CPP. Plaintiff has failed to demonstrate reversible error in this

regard.

2. The ALJ properly addressed the opinion of treating

physician Dr. Herdzik’s opinion. 

By way of background, treating physician Monika Herdzik, M.D., evaluated

Plaintiff on several occasions throughout 2011 and 2012. See Medical Records

dated January 31, 2011 (R. at 692); November 9, 2011 (R. at 616-618); December

16, 2011 (R. at 613-615); March 2, 2012 (R. at 609-612); March 23, 2012 (R. at

599-603); June 7, 2012 (R. at 508-510, 595-598); September 26, 2012 (R. at 500-

505) and October 3, 2012 (R. at 633-634). 

Among these evaluations is Dr. Herdzik’s September 26, 2012 SSA Medical

Source Statement of Ability to do Work-Related Activities (Physical). (R. at 500-

505.) Specifically, Dr. Herdzik opined that Plaintiff could occasionally lift/carry

up to 20 pounds. (R. at 500.) Dr. Herdzik also somewhat inconsistently noted

that, per patient, Plaintiff could: sit for 8 hours at one time without interruption

but sit for 30 minutes total in an 8 hour work day; stand for 30 minutes total in an

eight hour work day; walk less than 60 minutes at one time without interruption

and walk less than 30 minutes total in an 8 hour work day. (R. at 501.) Moreover,

Dr. Herdzik noted Plaintiff could frequently feel with both hands and occasionally

reach, handle, finger and push/pull with both hands. (R. at 502.) Dr. Herdzik went

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on to state that Plaintiff had “chronic pain . . . cannot continue a task without

taking a break[,]” and “cannot read.” (R. at 505.) 

At Step 4, ALJ O’Leary accorded “limited weight” to Dr. Herdzik’s

assessment, noting that it “is generally not consistent with weight of the medical

evidence of record, including objective examination findings, diagnostic testing,

and the longitudinal treatment record.” The ALJ continued, “[a]dditionally, the

[RFC] form indicates that a portion of the assessment was based on the claimant’s

own report, rather than an objective assessment of the claimant’s abilities and

limitations.” (R. at 36.)

Plaintiff’s second statement of error is that the ALJ’s decision does not give

good reasons for rejecting the treating source opinion of Dr. Herdzik, as required

by 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2) and SSR 96-2P. (DE 12 at 17-20.). 

An ALJ must “always give good reasons in [the ALJ’s] notice of determination or

decision for the weight [the ALJ] give[s] your treating source’s opinion.” 20

C.F.R. § 416.927(d)(2). “Although the regulations instruct an ALJ to consider

[certain] factors [when weighing medical opinions], they expressly require only

that the ALJ's decision include ‘good reasons ... for the weight ... give[n] [to the]

treating source's opinion’—not an exhaustive factor-by-factor analysis.” Francis,

414 F.App’x 804-805 (citing § 404.1527(d)(2)). Accordingly, the ALJ’s reasoning

“must be sufficiently specific to make clear to any subsequent reviewers the weight

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the adjudicator gave to the treating source’s medical opinion and the reasons for

that weight.” Friend v. Comm’r of Soc. Sec., No. 09-3889, 2010 WL 1725066, at

*7 (6th Cir. 2010) (internal quotation omitted). The United States Court of

Appeals for the Sixth Circuit has stressed the importance of the good-reason

requirement:

“The requirement of reason-giving exists, in part, to let claimants

understand the disposition of their cases,” particularly in situations

where a claimant knows that his physician has deemed him disabled

and therefore “might be especially bewildered when told by an

administrative bureaucracy that she is not, unless some reason for the

agency’s decision is supplied.” Snell v. Apfel, 177 F.3d 128, 134 (2d

Cir.1999). The requirement also ensures that the ALJ applies the

treating physician rule and permits meaningful review of the ALJ’s

application of the rule. See Halloran v. Barnhart, 362 F.3d 28, 32–33

(2d Cir. 2004).

Wilson, 378 F.3d at 544–45. Thus, the reason-giving requirement is “particularly

important when the treating physician has diagnosed the claimant as disabled.” 

Germany-Johnson v. Comm’r of Soc. Sec., 312 F. A’ppx 771, 777 (6th Cir. 2008)

(citing Rogers, 486 F.3d at 242). According to Plaintiff, ALJ O’Leary failed to

support her assignment of limited weight to Dr. Herdzik’s opinion with citation to

relevant evidence, in contravention of 20 C.F.R. § 404.1527(d)(2) and Rogers, 486

F.3d at 243. (DE 12 at 19.) However, the Court agrees with the Commissioner

that the ALJ properly discounted Dr. Herdzik’s opinion. (DE 15 at 16.) First, the

ALJ’s review of the medical record was superlatively thorough and wellorganized. (See R. at 23-34.) For example, she first opined that Plaintiff had

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limitation arising from chronic pain syndrome, fibromyalgia, myalgias, mild

cervical degenerative disc disease, migraine headaches, bilateral carpal tunnel

syndrome, and bilateral epicondylitis.” (R. at 23-30).11 She then discussed

limitations arising from asthma (R. at 30-31), Plaintiff’s cardiovascular history (R.

at 31-32), limitations arising from sensorineural hearing loss (R. at 32), Plaintiff’s

obesity (R. at 33) and limitations arising from dysthymia (R. at 33). Among other

records, the ALJ specifically cited a July 3, 2012 evaluation. Although this portion

of it was not quoted by the ALJ, this report notes that Plaintiff’s symptoms “do not

limit her activities[.]” (R. at 32, 591.) 

Second, the ALJ’s discussion of the opinion evidence is also thorough and

well organized. Namely, she referred to the records of Wayne Hill, Ph.D. (R. at

110); Dr. Deskovitz (R. at 497); Monika Herdzik, M.D. (R. at 500-505); Bradley

Binsfeld, D.O. (R. at 545-546); and John Duff, M.D. (R. at 572). As to these, she

specified the weight assigned to each. (R. at 35-37.). For example, the August 23,

2011 mental RFC assessment by Wayne Hill, Ph.D. opined that Plaintiff retained

the mental residual capacity to perform one and two step tasks on a sustained basis. 

(R. at 109-110.) ALJ O’Leary gave great weight to Dr. Hill’s assessment. (R. at

35.) 

11 At length discussing Dr. Bruma’s January 2011 and June 2012 notes. (R. at 25-

26, 29.)

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Third, as noted above, ALJ O’Leary explained that Dr. Herdzik’s September

26, 2012 assessment was partially completed by Connie Posigian, P.T.;12 was

generally inconsistent with the weight of the record medical evidence; and was

based in part on Plaintiff’s own, subjective report (R. at 36, R. at 57, R. at 500-505,

R. at 631-632; see also R. at 633-634). See Francis v. Commissioner Social Sec.

Admin., 414 F.App’x 802, 804 (6th Cir. 2011) (“Dr. Killefer's pain-related

statement, on the other hand, is not a ‘medical opinion’ at all—it merely

regurgitates Francis's self-described symptoms.”). 

Fourth, my conclusion is unchanged by Plaintiff’s contention that the ALJ

did not critically assess the evidence. DE 16 at 4. “The burden rests with the

claimant through step four.” Harris v. Commissioner of Social Sec., 598 F.App’x

355, 361 n.7 (6th Cir. 2015). Although Plaintiff replies that she “cited to the

similarities between the doctor’s practice notes and the doctor’s opinions[,]” DE 16

at 4, the argument portion of her January 8, 2015 motion makes only one express

citation to the medical record – namely the concluding page of Dr. Herdzik’s

September 26, 2012 Medical Source Statement of Activity to do Work-Related

Activities (Physical). See DE 12 at 11, 20, R. at 505.

12 Under the SSA regulations, evidence from a physical therapist is not an

“acceptable medical source.” Rather, it is considered an “other source.” 20 C.F.R.

§ 404.1513, 20 C.F.R. § 416.913 (“Medical and other evidence of your

impairment(s).”).

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To be sure, in the statement of the case portion of her January 8, 2015

motion, Plaintiff expressly cited Lakeshore Spine & Pain Larisa Bruma, M.D.’s

January 26, 2011 and Great Lakes Medical Dr. Bruma’s June 22, 2012 notes (R. at

444-446, 621-623), as well as Mark A. Deskovitz, Ph.D.’s August 9, 2011 State of

Michigan Disability Determination Service evaluation (R. at 493-498.). (See DE

12 at 10-11.). Also, during the September 17, 2015 hearing, Plaintiff’s counsel

vaguely referred to Dr. Binsfeld and Dr. Duff, albeit without reference to any

specific findings or records. As outlined above, ALJ O’Leary cited Deskovitz,

Herdzik, Binsfeld and Duff in her Step 4 decision of the opinion evidence. (R. at

35-37, 497, 500-505, 545-546 and 572.) Moreover, the ALJ cited Bruma within

her Step 4 discussion of the medical record. (R. at 25-26, 29, 444-446, 621-623.) 

Thus, it cannot be said she did not consider these reports before forming her RFC

assessment. 

3. Plaintiff was notified of her right to question witnesses, such

as the VE; moreover, she has not shown that any alleged

error harmed her. 

Plaintiff’s third statement of error is that the ALJ failed to allow Plaintiff an

opportunity to object to the VE’s credentials and did not offer Plaintiff an

opportunity to cross-examine the VE. (See DE 12 at 20-22.) To the extent these

arguments challenge the ALJ’s Step 5 determination that there are jobs that exist in

significant numbers in the national economy that Plaintiff can perform (R. at 39-

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40), the burden shifts to the Commissioner. “[A]t step five of the inquiry, . . . the

burden shifts to the Commissioner to identify a significant number of jobs in the

economy that accommodate the claimant's residual functional capacity (determined

at step four) and vocational profile.” Jones v. Commissioner of Social Sec., 336

F.3d 469, 474 (6th Cir. 2003).

Importantly, the July 16, 2012 and September 10, 2012 Notices of Hearing

state that a VE will testify at the hearing and inform Plaintiff that she may question

witnesses. (R. at 136-141, 154-155.). Therefore, Plaintiff was twice notified in

writing of her right to question witnesses, such as the VE. See Thomas v. Comm’r

of Soc. Sec., 550 F. App’x 289, 290-291 (6th Cir. 2014), (DE 15 at 21.)13 

13 A quick note about Plaintiff’s reading proficiency, as mentioned by Plaintiff’s

counsel at oral argument, is in order. In her June 6, 2010 function report, when

asked about following written instructions, Plaintiff responded, “I have a hard time

with reading and [knowing] what it means[.]” (R. at 197-204 [Ex. B3E].) In her

April 22, 2011 SSA Function Report, Plaintiff noted difficulty with memory,

completing tasks, concentration, understanding and following instructions. (R. at

262-269 [Ex. B10E].) Also, the March 15, 2011 field office disability report notes

that Plaintiff can read and write, but she has comprehension issues. (R. at 231 [Ex.

B7E].) Additionally, in her September 26, 2012 notes, Dr. Herdzik stated, “Patient

cannot read.” (R. at 505.) However, the May 2010 and March 2011 disability

reports each represent that Plaintiff can read and understand English. (R. at 188

[Ex. B2E], 230 [Ex. B7E].) And, in the June 2010 third party function report,

Plaintiff’s husband reported that Plaintiff can follow a recipe well. (R. at 218 [Ex.

B5E].) Moreover, her neurologist notes that her “fund of knowledge is normal.” 

(R. at 625, 628.) Thus, the Court is not convinced that Plaintiff was unable to read

the notice, especially since Plaintiff appeared at the October 1, 2012 hearing in

response to it. (R. at 47-89.) Therefore, it cannot be said that she was unable to

appreciate its import, and the Court assumes that Plaintiff was able to read and

understand the hearing notices sent to her. Even if Plaintiff were unable to read

the September 10, 2012 notice of hearing (R. at 152-162), this, alone, is not a basis

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a. Any failure to allow Plaintiff an opportunity to object

to the VE’s credentials was harmless.

VE McFarland’s resume is part of the administrative record. (R. at 147). 

During the October 1, 2012 hearing, the ALJ confirmed with VE McFarland that

her resume properly reflected her professional qualifications. (R. at 82.) She also

asked VE McFarland to briefly describe her qualifications, because Plaintiff was

not represented by counsel. (R. at 82-83.) 

According to Plaintiff, she “was never afforded the opportunity to voir dire

the VE, object to the VE’s qualifications or cross-examine the expert. It cannot be

assumed she would have declined these opportunities if presented.” DE 12 at 21. 

Among other cases, Plaintiff relies upon Calvin v. Chater, 73 F.3d 87, 91 (6th Cir.

1996).14

for remaining idle. See, i.e., Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002)

("An inability to speak, write and/or understand English, in and of itself, does not

automatically give a petitioner reasonable cause for failing to know about the legal

requirements for filing his claims."), Anderson v. City Finance Co., No. 3:02-CV1074-LN, 2003 WL 21788947 (S.D. Miss. July 14, 2003) ("a plaintiff's inability to

read does not excuse his failure to inform himself as to the contents of the contracts

he signs."). If she did have trouble understanding the instructions contained in the

hearing notice, she should have either requested assistance from someone or

pointed out to the ALJ that she was unable to comprehend the remaining contents

of the notice. The ALJ’s kindness and patience toward Plaintiff is manifest in the

transcript, and there is no doubt that she would have explained the process further,

if asked.

14 “[S]ocial security hearings must conform to the requirements of the

Administrative Procedure Act.” Calvin v. Chater, 73 F.3d 87, 91 (6th Cir. 1996). 

The Administrative Procedure Act is codified at 5 U.S.C. §§ 551-559, 701-706,

1305, 3105, 3344, 4301, 5335, 5372, 7521. “A party is entitled to present his case

or defense by oral or documentary evidence, to submit rebuttal evidence, and to

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However, “the burden of showing that an error is harmful normally falls

upon the party attacking the agency’s determination.” See Shinseki, Secretary of

Veterans Affairs v. Sanders, 556 U.S. 396, 409 (2009). Here, the Court agrees with

the Commissioner that Plaintiff has not shown that if she had been invited to

challenge the VE’s qualifications the result may have been different. DE 15 at 21-

22. 

b. Any failure to offer Plaintiff an opportunity to crossexamine the VE was harmless.

According to Plaintiff, “[t]here can be no argument of waiver in the instant

case as [she] was never afforded the opportunity to cross-examine the vocational

expert.” DE 12 at 21. In support of her argument regarding the ALJ’s failure to

accord her the right to cross-examine the VE, Plaintiff relies in part upon Glenn v.

Commissioner of Social Sec., 763 F.3d 494, 499 (6th Cir. 2014), wherein the Sixth

Circuit stated: “[The ALJ’s] failure to advise Glenn of her right to cross-examine

the VE was error under 20 C.F.R. § 404.1545(e) and caused prejudice because the

VE's opinion that Glenn could work as a cashier or cafeteria attendant did not take

into account her moderate limitations on interacting with the public.” Glenn v.

Commissioner of Social Sec., 763 F.3d 494, 499 (6th Cir. 2014); (DE 16 at 4-5.)

conduct such cross-examination as may be required for a full and true disclosure of

the facts.” 5 U.S.C.A. § 556(d). 

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However, I find the Commissioner’s reliance upon Thomas v. Comm’r of

Soc. Sec., 550 F. App’x 289, 291 (6th Cir. 2014) to be more instructive and directly

on point: 

[T]he ALJ did not reversibly err by failing to explicitly invite Thomas

to cross-examine the vocational expert. Thomas had been notified in

writing that she could speak to the expert, the ALJ gave her the

opportunity to speak after the expert testified, and Thomas has not

identified any significant inaccuracy in the expert's testimony or any

significant testimony that she could have elicited.

Thomas v. Commissioner of Social Sec., 550 F.App’x 289, 290-291 (6th Cir. 2014).

As previously noted, “the burden of showing that an error is harmful

normally falls upon the party attacking the agency’s determination.” See Shinseki,

556 U.S. at 409. Here, the Court agrees with the Commissioner that, even if the

ALJ should have orally reminded Plaintiff of the previously advised fact that she

was entitled to cross-examine the VE, Plaintiff has not shown that the omission

was prejudicial. In other words, Plaintiff has not shown what inaccuracies, if any,

there were in the VE’s October 1, 2012 testimony (DE 15 at 21), nor has she

specified the testimony she believes she could have elicited from the VE at the

October 1, 2012 hearing. Finally, the ALJ did pose a second hypothetical,

including limitations of “unable to maintain regular attendance” resulting in being

“absent from work more than four times per month,” to which the VE responded

there would be no work that such an individual could perform. (R. at 85-86.) 

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Thus, the VE’s testimony regarding the effect of an inability to maintain regular

attendance was before the ALJ when she arrived at her decision. 

II. ORDER

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, the Plaintiff’s motion for remand pursuant to Sentence Four is

DENIED, Defendant’s motion for summary judgment is GRANTED, and the

Commissioner of Social Security’s decision is AFFIRMED.

IT IS SO ORDERED. 

Dated: September 30, 2015 s/Anthony P. Patti

Anthony P. Patti

UNITED STATES MAGISTRATE JUDGE

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

on September 30, 2015, electronically and/or by U.S. Mail.

s/Michael Williams

Case Manager for the

Honorable Anthony P. Patti

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