UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

 

ANJILOAK HATHAWAY, 

 Plaintiff, CIVIL ACTION NO. 14-cv-13964 

 v. DISTRICT JUDGE PAUL D. BORMAN 

COMMISSIONER OF MAGISTRATE JUDGE MONA K. MAJZOUB

SOCIAL SECURITY, 

 

 Defendant. 

___________________________/ 

 

REPORT AND RECOMMENDATION 

Plaintiff Anjiloak Hathaway seeks judicial review of Defendant Commissioner of Social 

Security’s determination that she is not entitled to social security benefits for her physical and 

mental impairments under 42 U.S.C. § 405(g). (Docket no. 1.) Before the Court are Plaintiff’s 

Motion for Summary Judgment (docket no. 11) and Defendant’s Motion for Summary Judgment 

(docket no. 12). The motions have been referred to the undersigned for a Report and 

Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). (Docket no. 3.) The Court has 

reviewed the pleadings, dispenses with a hearing pursuant to Eastern District of Michigan Local 

Rule 7.1(f)(2), and issues this Report and Recommendation. 

I. RECOMMENDATION

 For the reasons that follow, it is recommended that Plaintiff’s Motion for Summary 

Judgment (docket no. 11) be DENIED and Defendant’s Motion for Summary Judgment (docket 

no. 12) be GRANTED. 

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II. PROCEDURAL HISTORY

 Plaintiff filed an application for supplemental security income with a protective filing 

date of December 14, 2011, alleging that she has been disabled since February 18, 2005, due to a 

growth on her brain, neuropathy, nerve damage in her head and neck, frequent falling, numbness 

in her arms and hands, and seizures. (TR 112, 148-53, 165.) The Social Security Administration 

denied Plaintiff’s claims on July 23, 2012, and Plaintiff requested a de novo hearing. (TR 99-

112, 119-21.) On June 10, 2013, Plaintiff appeared with a representative and testified at the 

hearing before Administrative Law Judge (ALJ) Patricia S. McKay. (TR 25-65.) In a June 28, 

2013 decision, the ALJ found that Plaintiff was not entitled to benefits because she was capable 

of performing a significant number of jobs in the national economy. (TR 12-21.) The Appeals 

Council declined to review the ALJ’s decision (TR 1-6), and Plaintiff commenced this action for 

judicial review. The parties then filed cross motions for summary judgment, which are currently 

before the Court. 

III. HEARING TESTIMONY AND MEDICAL EVIDENCE

In her brief, Plaintiff sets forth the procedural history of this matter, summarizes the 

hearing testimony, and provides a detailed, chronological outline of the medical evidence. 

(Docket no. 11 at 7-8, 11-16.) The ALJ set out a detailed, factual recitation with regard to 

Plaintiff’s hearing testimony, Plaintiff’s medical record, and the vocational expert’s (VE’s) 

testimony in her decision. (TR 14-21.) Defendant adopts the ALJ’s recitation of the facts. 

(Docket no. 12 at 4.) There are no material inconsistencies between Plaintiff’s and the ALJ’s 

accounts of the record; therefore, the undersigned will incorporate their factual recitations by 

reference. Additionally, the undersigned has conducted an independent review of Plaintiff’s 

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medical record and the hearing transcript and will include comments and citations as necessary 

throughout this Report and Recommendation. 

IV. ADMINISTRATIVE LAW JUDGE’S DETERMINATION

 The ALJ found that Plaintiff had not engaged in substantial gainful activity since the 

application date of December 14, 2011, and that Plaintiff suffered from the following severe 

impairments: history of multiple sclerosis (MS); occipital neuralgia/migraine headaches; brain 

growth near occipital nerve; and cervical degenerative disc disease with nerve damage. (TR 14.) 

The ALJ also found that Plaintiff’s hypertension, kidney infections, sepsis, high cholesterol, and 

adjustment disorder with anxious mood were non-severe impairments. (TR 14-16.) Next, the 

ALJ found that Plaintiff’s impairments did not meet or medically equal the severity of an 

impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (TR 16.) The ALJ then found 

that Plaintiff had the following RFC: 

[C]laimant has the residual functional capacity to perform light work as defined in 

20 CFR 416.967(b), except she must avoid climbing ladders, ropes, and 

scaffolding; she must avoid using her hands for fine manipulations; she must 

avoid even moderate exposure to hazards such as moving machinery or heights; 

she must avoid walking on shifting terrain; she needs to avoid concentrated 

exposure to pulmonary irritants; she needs to avoid frequent rotation of her head 

in all direction[s]; she can tolerate only occasional, incidental contact with the 

public and only occasional interaction with co-workers and supervisors; she is 

limited to work that is unskilled and simple, routine, and repetitive in nature; and 

she must be limited to low stress work such that she controls the pace of that 

work. 

(TR 16-19.) Subsequently, in reliance on the VE’s testimony, the ALJ determined that Plaintiff 

was capable of performing a significant number of jobs in the national economy. (TR 20-21.) 

Therefore, the ALJ found that Plaintiff was not disabled under the Social Security Act at any 

time since December 14, 2011, the date the application was filed. (TR 12, 21.) 

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V. LAW AND ANALYSIS

A. Standard of Review

 Pursuant to 42 U.S.C. § 405(g), this Court has jurisdiction to review the Commissioner’s 

final decisions. Judicial review of the Commissioner’s decisions is limited to determining 

whether his findings are supported by substantial evidence and whether he employed the proper 

legal standards. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Walters v. Comm’r, 127 

F.3d 525, 528 (6th Cir. 1997). Substantial evidence is more than a scintilla but less than a 

preponderance; it is “‘such relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion.’” Richardson, 402 U.S. at 401 (quoting Consolidated Edison Co. v. NLRB, 

305 U.S. 197, 229 (1938)); Walters, 127 F.3d at 528. It is not the function of this Court to try 

cases de novo, resolve conflicts in the evidence, or decide questions of credibility. See Brainard 

v. Sec’y of Health and Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v. Heckler, 745 

F.2d 383, 387 (6th Cir. 1984). 

 In determining the existence of substantial evidence, the court must examine the 

administrative record as a whole. See Kirk v. Sec’y of Health and Human Servs., 667 F.2d 524, 

536 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983). If the Commissioner’s decision is 

supported by substantial evidence, it must be affirmed, even if the reviewing court would decide 

the matter differently, Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983), and even if 

substantial evidence also supports the opposite conclusion. See Her v. Comm’r, 203 F.3d 388, 

389-90 (6th Cir. 1999); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc) (noting 

that the substantial evidence standard “presupposes that there is a zone of choice within which 

the decisionmakers can go either way, without interference by the courts”).

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B. Framework for Social Security Determinations

 Plaintiff’s Social Security disability determination was made in accordance with a fivestep sequential analysis. In the first four steps, Plaintiff was required to show that: 

(1) Plaintiff was not presently engaged in substantial gainful employment; and 

(2) Plaintiff suffered from a severe impairment; and 

(3) the impairment met or was medically equal to a “listed impairment;” or 

(4) Plaintiff did not have the residual functional capacity (RFC) to perform relevant 

past work. 

See 20 C.F.R. § 404.1520(a)-(f). If Plaintiff’s impairments prevented Plaintiff from doing past 

work, the Commissioner, at step five, would consider Plaintiff’s RFC, age, education, and past 

work experience to determine if Plaintiff could perform other work. If not, Plaintiff would be 

deemed disabled. See id. at § 404.1520(g). The Commissioner has the burden of proof only on 

“the fifth step, proving that there is work available in the economy that the claimant can 

perform.” Her, 203 F.3d at 391. To meet this burden, the Commissioner must make a finding 

“supported by substantial evidence that [the claimant] has the vocational qualifications to 

perform specific jobs.” Varley v. Sec’y of Health and Human Servs., 820 F.2d 777, 779 (6th Cir. 

1987). This “substantial evidence” may be in the form of vocational expert testimony in 

response to a hypothetical question, “but only ‘if the question accurately portrays [the 

claimant’s] individual physical and mental impairments.’” Id. (citations omitted). 

C. Analysis

 The Social Security Act authorizes “two types of remand: (1) a post judgment remand in 

conjunction with a decision affirming, modifying, or reversing a decision of the [Commissioner] 

(a sentence-four remand); and (2) a pre-judgment remand for consideration of new and material 

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evidence that for good cause was not previously presented to the [Commissioner] (a sentence-six 

remand).” Faucher v. Sec’y of Health and Human Servs., 17 F.3d 171, 174 (6th Cir. 1994) 

(citing 42 U.S.C. § 405(g)). Under a sentence-four remand, the Court has the authority to “enter 

upon the pleadings and transcript of the record, a judgment affirming, denying, or reversing the 

decision of the [Commissioner], with or without remanding the cause for a hearing. 42 U.S.C. § 

405(g). Where there is insufficient support for the ALJ’s findings, “the appropriate remedy is 

reversal and a sentence-four remand for further consideration.” Morgan v. Astrue, 10-207, 2011 

WL 2292305, at *8 (E.D. Ky. June 8, 2011) (citing Faucher, 17 F.3d at 174). 

 Plaintiff’s argument is muddled and disorganized; nevertheless, the Court will decipher 

and address the arguments developed by Plaintiff in the “Argument” portion of her brief. In that 

section, Plaintiff asserts that this matter should be reversed and remanded for an award of 

benefits under sentence four because (1) Plaintiff’s medical condition has deteriorated and 

worsened since April 28, 2011, the date of a prior, unfavorable ALJ decision; (2) the ALJ 

improperly substituted her own opinion in place of the examining state agency psychologist’s 

opinion that Plaintiff had a moderate limitation in concentration, persistence, or pace; (3) the 

ALJ erred by finding that Plaintiff’s mental disorder was a non-severe impairment; (4) the ALJ 

improperly assessed Plaintiff’s credibility; and (5) the ALJ failed to pose complete and accurate 

hypothetical questions to the VE. (Docket no. 11 at 17-28.) 

1. The ALJ’s Application of the Res Judicata Doctrine 

Plaintiff asserts that her condition has worsened since April 28, 2011, the date of a prior 

unfavorable ALJ decision that addressed Plaintiff’s previous applications for benefits. (Docket 

no. 1 at 17-18.) In making this assertion, Plaintiff seemingly argues that ALJ McKay was not, 

therefore, bound by the earlier decision. In Drummond v. Comm’r of Soc. Sec., the Sixth Circuit 

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held that social-security claimants and the Commissioner are barred by principles of res judicata 

from relitigating issues that have previously been determined. 126 F.3d 837 (6th Cir. 1997). 

The Commissioner is bound by the principles of res judicata unless there is new and material 

evidence of changed circumstances. Id. at 842; SSAR 98-4(6), 63 FR 29771-01 (June 1, 1998). 

Where a claimant who has previously been adjudicated “not disabled” seeks to avoid application 

of res judicata, he must provide proof that his condition has worsened since the date of the prior 

decision to such a degree that he is no longer capable of engaging in substantial gainful activity. 

Vesey v. Comm’r of Soc. Sec., No. 11-10967, 2012 WL 4475657, at *10 (E.D. Mich. Aug. 6, 

2012) (citations omitted). 

On April 28, 2011, Plaintiff was found “not disabled” by ALJ John Dodson, who 

determined that Plaintiff suffered from a history of multiple sclerosis (MS); occipital neuralgia; 

migraine headaches; brain growth near occipital nerve; and cervical degenerative disc disease 

with nerve damage. (TR 86-95.) He further found that Plaintiff had the following RFC: 

[T]he claimant has the residual functional capacity to perform light unskilled 

work as defined in 20 CFR 404.1567(b) and 416.967(b) with the following 

additional limitations: no climbing of ladders, ropes, or scaffolds; no fine 

manipulations; avoid even moderate exposure to hazards such as heights and 

moving machinery; no exposure to shifting terrain; avoid concentrated exposure 

to pulmonary irritants; no frequent rotation of the head, in all directions; 

occasional incidental contact with the public; occasional interaction with 

coworkers and supervisors. 

(TR 89-93.) Thus, ALJ McKay was bound by this determination unless she found new and 

material evidence of changed circumstances. Plaintiff argues that ALJ McKay erred in finding 

that Plaintiff was capable of performing light work as limited in the RFC because the record 

evidence indicates that her brain condition was worsening and that her headaches and seizure 

spells occurred more often than would be permitted by an employer. (Docket no. 11 at 17-18.) 

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Defendant argues that the evidence does not indicate as such and that Plaintiff has failed to meet 

her burden of establishing her RFC, as she has failed to produce any evidence that corroborates 

her claim that her condition has deteriorated. (Docket no. 12 at 5-11.) 

Noting her responsibility under Drummond, ALJ McKay found that “there is little to no 

indication of a worsened condition such that substantial departure from the prior Administrative 

Law Judge’s residual functional capacity would be warranted” but that an additional 

accommodation for Plaintiff’s potential difficulty with handling stress was warranted. (TR 18.) 

The ALJ supported this assertion by pointing out that Plaintiff did not allege that her 

impairments had worsened in her Appeal Report. (TR 17.) The ALJ also addressed Plaintiff’s 

representative’s assertion that Plaintiff’s MS had worsened based on a comparison of a February 

2011 MRI and an October 2011 MRI, but the ALJ countered this assertion by pointing out that 

the result of a July 2012 MRI suggested that the condition had stabilized. (TR 17 (citing TR 

365-66).) The ALJ also cited a summary report of Plaintiff’s May 7, 2013 neurology 

appointment at which Plaintiff and her significant other indicated that Plaintiff’s episodes had 

been less frequent over the last several months. (TR 17 (citing TR 397).) The ALJ also noted 

that Plaintiff’s current medical records no longer evidenced a loss of sensation in Plaintiff’s 

hands. (TR 17.) 

The only medical evidence that Plaintiff offers to support her contention that her 

condition has worsened since the previous ALJ decision is the report from her October 2011 

MRI, in which Dr. Peter M. Nefcy, M.D., a Board Certified Radiologist, opined that “[t]here has 

been interval development of additional small lesions in the periventricular and juxtacortical 

deep white matter bilaterally.” (Docket no. 11 at 17 (citing TR 247).) What Plaintiff does not 

highlight, however, is Dr. Nefcy’s continued opinion that those lesions may have been present, 

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but obscured, in the February 2011 MRI, and as compared to that MRI, the overall appearance of 

Plaintiff’s brain was unchanged. (TR 247.) Plaintiff also argues that both she and her friend, 

Mr. Brooks, testified that her spells were occurring more often, but, as noted above, the ALJ 

specifically addressed this aspect of their testimony and found it to be incredible. (Docket no. 11 

at 18; TR 17.) 

Plaintiff has not sufficiently provided proof that her condition has worsened since the 

date of the prior decision to such a degree that she is no longer capable of engaging in substantial 

gainful activity. Accordingly, the ALJ’s determination that “there is little to no indication of a 

worsened condition such that substantial departure from the prior Administrative Law Judge’s 

residual functional capacity would be warranted” is supported by substantial evidence. The 

undersigned finds that ALJ McKay did not err in her application of Drummond; Plaintiff’s 

Motion should be denied with regard to this issue. 

2. The ALJ’s Assessment of Plaintiff’s Mental RFC 

In her brief, Plaintiff alleges that her “ability to perform simple routine, repetitive work 

with limited stress and the ability to [do] self-pace work activity is not supported by the 

psychological reports in the record” and that the ALJ’s finding that Plaintiff had no limitation in 

activities of daily living, a mild limitation in social functioning, and a mild limitation in 

concentration, persistence, or pace is contrary to the medical evidence of record. (Docket no. 11 

at 20, 24.) Plaintiff spends several paragraphs summarizing the June 8, 2012 and July 13, 2012 

reports of the psychological evaluations conducted by Patricia Madej, Ph.D., LP, but she does 

not develop these general arguments any further. 

The only cognizable argument that Plaintiff sets forth in regard to Plaintiff’s mental RFC 

is that the ALJ improperly substituted her own opinion in place of the examining state agency 

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psychologist’s opinion that Plaintiff had a moderate limitation in concentration, persistence, or 

pace. (Docket no. 20-23.) The ALJ discussed Plaintiff’s limitations in concentration, 

persistence, or pace as follows: 

In this area, the claimant has mild limitation. The claimant drives an automobile; 

she puts together jigsaw puzzles; she exhibited cognitive abilities in the broad 

average to superior range; she had exceptional short-term memory recall 

suggestive of potential for sustained short-term attention and concentration which 

the consultative examiner noted should facilitate the processing of complex 

information and ease new learning for her (Exhibit B6F). The undersigned finds 

the claimant has no more than mild limitation in this area. Nonetheless, the 

undersigned has accommodated some difficulty in this area (and in social 

functioning) by limiting the claimant’s exposure to others and by limiting her to 

unskilled, simple, routine, repetitive, self-paced work. 

(TR 15.) With regard to the opinion of the state agency examining psychologist, Jerry Csokasy, 

Ph.D., the ALJ stated: 

The undersigned accords some weight to the state agency psychological 

examiner’s opinion at Exhibit B3A, but declines to adopt the portion indicating 

moderate limitation in concentration persistence, or pace, as such is simply 

inconsistent with noted capabilities at Exhibit B6F . . . which indicated significant 

capabilities and no more than mild (i.e. GAF 65) seizure-free symptomatology. 

 

(TR 16.) 

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. “When the ALJ has found such a limitation, the ALJ must 

incorporate these limitations into the hypothetical questions.” McPhee v. Comm’r of Soc. Sec., 

No. 11-13399, 2013 WL 1277889, at *2 (E.D. Mich. Mar. 27, 2013) (citations omitted). Courts 

are more likely to order a sentence-four remand in cases where the ALJ made the finding of 

moderate deficiencies in concentration, persistence, or pace in the absence of a medical opinion 

that found similar moderate deficiencies and indicated that the plaintiff was still capable of 

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sustained work. Cwik v. Comm’r of Soc. Sec., No. 10-15121, 2012 WL 1033578, at *10 (E.D. 

Mich. Feb. 23, 2012) (citing Hicks v. Comm’r of Soc. Sec., No. 10-13643, 2011 WL 6000701, at 

*4 (E.D. Mich. Nov. 28, 2011)). Findings of moderate limitations in concentration, persistence, 

or pace do not necessarily preclude “simple, routine, unskilled work.” Lewicki v. Comm’r of 

Soc. Sec., No. 09-11844-BC, 2010 WL 3905375, at *2 (E.D. Mich. Sept. 30, 2010) (citations 

omitted). Such limitations may, however, result in the claimant being unable to meet quotas, 

stay alert, or work at a consistent rate of speed. Edwards v. Barnhart, 383 F. Supp. 2d 920, 930 

(E.D. Mich. 2005). 

Here, in conducting a mental RFC assessment of Plaintiff, Dr. Csokasy determined that 

Plaintiff had moderate difficulties in maintaining concentration, persistence, or pace, but found 

that Plaintiff was capable of performing simple, routine tasks on a sustained basis in a low-stress 

environment. (TR 104, 107-08.) The ALJ determined that Plaintiff’s limitation in concentration, 

persistence, or pace was only mild, but found that Plaintiff was limited to unskilled, simple, 

routine, and repetitive work. (TR 16.) The ALJ further limited Plaintiff to low-stress work such 

that she would control the pace of that work. (TR 16.) Thus, even though the ALJ found that 

Plaintiff’s limitation in concentration, persistence, or pace was mild as compared to Dr. 

Csokasy’s opinion that it was moderate, the ALJ placed more limitations on Plaintiff’s mental 

RFC than Dr. Csokasy did, namely, that Plaintiff was limited to low-stress work such that she 

would control the pace of the work. Accordingly, any error committed by the ALJ in 

discounting Dr. Csokasy’s opinion on the basis of concentration, persistence, or pace is harmless; 

Plaintiff’s argument fails in this regard. 

Furthermore, as noted above, a limitation to self-paced work is a common and adequate 

limitation for those persons who suffer from moderate difficulties in concentration, persistence, 

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or pace. See Edwards, supra. Notably, Plaintiff does not explain what additional limitations the 

ALJ should have imposed. There is no error here on the part of the ALJ, as the ALJ 

appropriately accommodated for Plaintiff’s limitations in concentration, persistence, or pace, 

whether mild or moderate, in the RFC. It is, therefore, recommended that Plaintiff’s Motion for 

Summary Judgment on this issue be denied. 

 3. The ALJ’s Step-Two Determination 

Plaintiff suggests that the ALJ erred when she determined that Plaintiff’s adjustment 

disorder with anxious mood was a non-severe impairment. (Docket no. 11 at 24.) A severe 

impairment or combination of impairments is one that significantly limits the claimant’s physical 

or mental ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). An 

impairment will be considered non-severe only if it is a “slight abnormality which has such a 

minimal effect on the individual that it would not be expected to interfere with the individual’s 

ability to work, irrespective of age, education and work experience.” Farris v. Sec’y of Health & 

Human Servs., 773 F.2d 85, 90 (6th Cir. 1985) (citation omitted). But the step-two severity 

analysis is simply a threshold determination. It is well established that “once any one 

impairment is found to be severe, the ALJ must consider both severe and nonsevere impairments 

in the subsequent steps,” and it becomes “legally irrelevant” that other impairments are not 

considered severe. McGlothin v. Comm’r of Soc. Sec., 299 F. App’x 516, 522 (6th Cir. 2008) 

(citing Anthony v. Astrue, 266 F. App’x 451, 457 (6th Cir. 2008)). This is so because the second 

step is designed simply to screen out and dispose of baseless claims. Anthony, 266 F. App’x at 

457. Stated differently, as long as the ALJ considers all of a claimant’s impairments in the 

remaining steps of the disability determination, the ALJ’s failure to find additional severe 

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impairments at step two does not constitute reversible error. See Maziarz v. Sec’y of Health & 

Human Servs., 837 F.2d 240, 244 (6th Cir. 1987). 

Here, the ALJ engaged in a lengthy discussion of Plaintiff’s adjustment disorder with 

anxious mood, including an evaluation of the disorder under section 12.00C of the Listing of 

Impairments. (TR 15-16.) Additionally, when discussing Plaintiff’s RFC, the ALJ noted that 

Plaintiff’s depression and anxiety were stable. (TR 18.) The ALJ also cited to record evidence 

in which Plaintiff stated that her episodes seemed to be caused by strong emotion, stress, or 

excitement, and the ALJ explicitly accommodated for those issues by limiting Plaintiff to simple, 

routine, repetitive, and low-stress work such that Plaintiff would be able to control the pace of 

the work. (TR 17, 18, 19 (citing TR 397).) Thus, the ALJ properly considered Plaintiff’s nonsevere impairment of adjustment disorder with anxious mood at the remaining steps of the 

sequential evaluation process, and Plaintiff’s Step-Two challenge fails. 

4. The ALJ’s Assessment of Plaintiff’s Credibility 

Next, Plaintiff challenges the ALJ’s credibility determination as erroneous and not 

supported by the evidence of record. (Docket no. 11 at 24-26.) “[A]n ALJ’s findings based on 

the credibility of the applicant are to be accorded great weight and deference, particularly since 

an ALJ is charged with the duty of observing a witness’s demeanor and credibility.” Walters v. 

Comm’r, 127 F.3d 525, 531 (6th Cir. 1997). But credibility assessments are not insulated from 

judicial review. Despite the deference that is due, such a determination must nevertheless be 

supported by substantial evidence. Id. An ALJ’s credibility determination must contain 

“specific reasons . . . supported by the evidence in the case record, and must be sufficiently 

specific to make clear to the individual and to any subsequent reviewers the weight the 

adjudicator gave to the individual’s statements and the reasons for that weight.” SSR 96–7p. “It 

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is not sufficient to make a conclusory statement that ‘the individual’s allegations have been 

considered’ or that ‘the allegations are (or are not) credible.’” Id. “[T]he adjudicator may find 

all, only some, or none of an individual’s allegations to be credible” and may also find the 

statements credible to a certain degree. Id.

 Further, to the extent that the ALJ found that Plaintiff’s statements are not substantiated 

by the objective medical evidence in the record, the Regulations explicitly provide that “we will 

not reject your statements about the intensity and persistence of your pain or other symptoms or 

about the effect your symptoms have on your ability to work solely because the available 

objective medical evidence does not substantiate your statements.” 20 C.F.R. §§ 404.1529(c)(2), 

416.929(c)(2). The ALJ must consider: (1) the claimant’s daily activities, (2) the location, 

duration, frequency, and intensity of the claimant’s pain or other symptoms, (3) precipitating and 

aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication taken 

to alleviate pain or other symptoms, (5) treatment, other than medication, for symptom relief, (6) 

any measures used to relieve the symptoms, and (7) functional limitations and restrictions due to 

the pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); see also Felisky v. 

Bowen, 35 F.3d 1027, 1039-40 (6th Cir. 1994) (applying these factors). 

 Here, the ALJ considered and discussed Plaintiff’s hearing testimony and other subjective 

complaints in conjunction with the record evidence, and she found that Plaintiff’s allegations 

were not entirely credible. (TR 16-19.) In reaching this determination, the ALJ 

pointed out that the summary report of Plaintiff’s May 7, 2013 neurological examination 

directly contradicts Plaintiff and Mr. Brooks’s testimony that her seizures have been occurring 

more frequently. Indeed, the report indicates that at the examination, both Plaintiff and her 

significant other disclosed that her seizures had been less frequent over the last several months. 

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(TR 397.) The ALJ discussed Plaintiff’s testimony that she has been restricted to lifting no more 

than five pounds and that she has intermittent numbness in her hands but found that those 

allegations were unsupported by the record evidence, particularly noting that Plaintiff’s current 

records suggest that she has no loss of sensation in her hands. The ALJ also reasoned that 

Plaintiff’s medication was helping with her discomfort and preventing her seizures. (TR 18 

(citing TR 228).) Additionally, the ALJ acknowledged that Plaintiff’s seizures were precipitated 

or aggravated by stress, and accounted for that in her RFC assessment. The ALJ further 

reasoned that despite Plaintiff’s complaints of “spell-like confusional states” and seizure activity, 

Plaintiff’s September 2012, October 2012, and January 2013 neurology examinations were 

normal and unremarkable. 

Plaintiff argues that the treatment notes and records from her neurologist confirm her 

testimony regarding her pain, seizures and spells. (Docket no. 11 at 24-25.) She also highlights 

Dr. J. Matthew Voci, M.D.’s January 2013 letter in which he states that Plaintiff was still having 

seizures despite the use of Depakote and requests that Plaintiff be granted disability. (Docket no. 

11 at 25 (citing TR 393).) The ALJ, however, accorded no weight to Dr. Voci’s letter, finding it 

to be conclusory, entirely based upon Plaintiff’s subjective complaints, lacking in objective 

medical support, and an opinion on an issue reserved to the Commissioner. (TR 18-19.) It is not 

the Court’s function to reweigh or resolve conflicts in the evidence. As discussed above, the 

ALJ provided specific reasons for discounting Plaintiff’s credibility in her decision, many of 

which apply the factors set forth in 20 C.F.R. § 416.929(c)(3). Thus, the ALJ’s decision is 

sufficiently specific to make clear to Plaintiff and to the Court the weight that she gave to 

Plaintiff’s statements and the reasons for that weight. The ALJ’s assessment of Plaintiff’s 

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credibility is supported by substantial evidence and should not be disturbed; Plaintiff’s Motion 

should be denied in this regard. 

5. The ALJ’s Hypothetical Questions to the VE 

Plaintiff argues that the ALJ asked the VE incomplete and inaccurate hypothetical 

questions because the evidence of record demonstrates that Plaintiff has moderate limitations in 

concentration, persistence, or pace, and that she experiences seizures or spells that impact her 

more than one day per month. (Docket no. 11 at 26-28.) In a hypothetical question posed to the 

VE, an ALJ is required to incorporate only those limitations which he finds credible and 

supported by the record. See Casey v. Sec’y of Health and Human Servs., 987 F.2d 1230, 1235 

(6th Cir. 1993). The Sixth Circuit has held that hypothetical questions to experts are not required 

to include lists of a claimant's medical impairments. Webb v. Comm’r of Soc. Sec., 368 F.3d 629, 

633 (6th Cir. 2004). As discussed above, the ALJ incorporated Plaintiff’s limitations in 

concentration, persistence, and pace into the RFC, but she did not find Plaintiff’s testimony 

regarding the frequency of her seizures to be credible. Here, the ALJ incorporated all of 

Plaintiff’s limitations that she found credible into Plaintiff’s RFC, presented those limitations to 

the VE in her hypothetical questions, and the VE testified that such an individual would not be 

capable of performing Plaintiff’s prior work, but that there were jobs available for a person with 

these limitations, which the VE cited in detail. The ALJ properly relied on the VE’s testimony to 

find that there are significant numbers of jobs available which Plaintiff can perform. 

Accordingly, Plaintiff’s Motion should be denied in this regard. 

 6. Plaintiff’s Other Arguments 

 To the extent that Plaintiff sets forth other arguments in her brief, such as that the ALJ 

failed to properly assess the opinions of Plaintiff’s neurologist or the consultative examiner, such 

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arguments are completely undeveloped. For instance, Plaintiff makes general allegations in her 

Statement of Questions Presented and Conclusion that the ALJ did not give proper weight to her 

treating physician. (Docket no. 11 at 7, 29.) In the Argument portion of her brief, Plaintiff 

recites portions of Dr. Voci’s treatment notes and January 2013 letter opinion (Id. at 23-25), but 

she does not at any point discuss the ALJ’s assessment of Dr. Voci’s opinion or set forth an 

argument regarding why it was erroneous. With regard to the consultative examiner, Dr. Madej, 

Plaintiff asserts that the ALJ either mischaracterized or ignored items in Dr. Madej’s report; 

however, Plaintiff fails to address Dr. Madej’s opinion that Plaintiff does not have “any obvious 

cognitive deficits that would interfere with employability and she appears to be relatively free of 

major psychopathology,” or the fact that the ALJ placed restrictions on Plaintiff’s employability 

where Dr. Madej did not. (Id. at 23; TR 372.) The Court is not obligated to develop these 

arguments on Plaintiff’s behalf, and it declines to do so. See Bush v. Astrue, No. 12-11790, 2013 

WL 1747807, at *14 (E.D. Mich. Jan. 25, 2013) (Grand, M.J.) (citation omitted). 

VI. CONCLUSION

 For the reasons stated herein, the Court should DENY Plaintiff’s Motion for Summary 

Judgment (docket no. 11) and GRANT Defendant’s Motion for Summary Judgment (docket no. 

12). 

REVIEW OF REPORT AND RECOMMENDATION

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

Recommendation, but must act within fourteen (14) days of service of a copy hereof as provided 

for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections 

constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard 

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v. Sec’y of Health and Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 

F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but fail to raise others with 

specificity will not preserve all objections that a party might have to this Report and 

Recommendation. Willis v. Sec’y of Health and Human Servs., 931 F.2d 390, 401 (6th Cir. 

1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). 

Pursuant to Rule 72.1(d)(2) of the Local Rules of the United States District Court for the Eastern 

District of Michigan, a copy of any objection must be served upon this Magistrate Judge. 

 Within fourteen (14) days of service of any objecting party’s timely filed objections, the 

opposing party may file a response. The response shall be not more than five (5) pages in length 

unless by motion and order such page limit is extended by the Court. The response shall address 

specifically, and in the same order raised, each issue contained within the objections. 

Dated: November 3, 2015 s/ Mona K. Majzoub 

 MONA K. MAJZOUB 

 UNITED STATES MAGISTRATE JUDGE 

 

 

PROOF OF SERVICE

 I hereby certify that a copy of this Report and Recommendation was served upon counsel 

of record on this date. 

 

Dated: November 3, 2015 s/ Lisa C. Bartlett 

 Case Manager

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