UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL L. TOPPING,

Plaintiff,

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

____________________________________/

Case No. 14-cv-14011

George Caram Steeh

United States District Judge

Stephanie Dawkins Davis

United States Magistrate Judge

REPORT AND RECOMMENDATION

CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkt. 14, 15)

I. PROCEDURAL HISTORY

A. Proceedings in this Court

On October 17, 2014, plaintiff filed the instant suit seeking judicial review

of the Commissioner’s unfavorable decision disallowing benefits. (Dkt. 1). This

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

Commissioner’s decision denying plaintiff’s claims for a period of disability and

disability insurance benefits. (Dkt. 3). This matter is before the Court on cross1

motions for summary judgment. (Dkt. 14, 15). Plaintiff also filed a reply brief in

support of his motion for summary judgment. (Dkt. 16). These motions are now

 This matter was initially referred to Magistrate Judge Michael Hluchaniuk but was 1

reassigned to the undersigned pursuant to Administrative Order. (See Text-Only Order dated

January 5, 2016).

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ready for report and recommendation.

B. Administrative Proceedings

Plaintiff filed the instant claim for disability insurance benefits on January

20, 2012, alleging disability beginning April 13, 2011. (Dkt. 11-2, Pg ID 47). 

Plaintiff’s claims were initially denied by the Commissioner on May 4, 2012. Id.

Plaintiff requested a hearing and on October 11, 2012, plaintiff testified before

Administrative Law Judge (“ALJ”) Timothy C. Scallen who considered the case

de novo. (Dkt. 11-2, Pg ID 60-97). In a decision dated August 28, 2013, the ALJ

found that plaintiff was not disabled. (Dkt. 11-2, Pg ID 47-56). Plaintiff

requested a review of this decision, and the ALJ’s decision became the final

decision of the Commissioner when the Appeals Council, on August 23, 2014,

denied plaintiff’s request for review. (Dkt. 11-2, Pg ID 36-39); Wilson v. Comm’r

of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004).

For the reasons set forth below, the undersigned RECOMMENDS that

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

for summary judgment be DENIED, that the findings of the Commissioner be

REVERSED, and this matter be REMANDED for further proceedings under

Sentence Four.

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II. FACTUAL BACKGROUND

A. ALJ Findings

Plaintiff was born in 1985 and was 25 years old on the alleged disability

onset date. (Dkt. 11-2, Pg ID 54). Plaintiff had past relevant work as a sign

installer, kitchen worker, dining room attendant, grocery bagger, stock clerk, and

military. Id. The ALJ applied the five-step disability analysis to plaintiff’s claims

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

since April 13, 2011, the alleged onset date. (Dkt. 11-2, Pg ID 49). At step two,

the ALJ found that plaintiff had the following severe impairments: low back

pain/disorder; obstructive sleep apnea; depressive disorder NOS; anxiety disorder;

post-traumatic stress disorder. Id. At step three, the ALJ found no evidence that

plaintiff’s combination of impairments met or equaled one of the listings in the

regulations. Id. 

The ALJ determined that plaintiff had the residual functional capacity

(RFC) to perform light work, with the following limitations:

occasional use of stairs, ramps, ropes, or ladders stairs;

occasional stooping, kneeling, crouching, and crawling;

only simple, routine tasks; no contact with the general

public; and only incidental contact with co-workers.

(Dkt. 11-2, Pg ID 52). At step four, the ALJ found that plaintiff could not perform

any of his past relevant work. (Dkt. 11-2, Pg ID 54). However, the ALJ

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determined that, considering plaintiff’s age, education, experience, and RFC, there

were jobs that exist in sufficient numbers that plaintiff can perform and therefore,

plaintiff had not been under a disability from the alleged onset date through the

date of the decision. (Dkt. 11-2, Pg ID 55).

B. Plaintiff’s Claims of Error

Plaintiff argues that the ALJ’s decision of non-disability is not supported by

substantial evidence because the ALJ erroneously evaluated the opinion of

consultive examiner, Dr. Terrance Mills. (Dkt. 14, Pg ID 866). Initially, plaintiff

argues that the ALJ erred by evaluating the opinion of a Dr. Cohn, when the case

record reveals no opinion or evaluation of plaintiff by a Dr. Cohn. Id. 

Acknowledging that the ALJ may have simply misstated the name of the

consultive examiner when attempting to refer to the opinion of Dr. Mills (in his

discussion of the opinion, the ALJ cites to Exhibit 9F, which contains the report of

Dr. Mills), plaintiff suggests that the ALJ could have been referencing the opinion

of consulting examiner, Sandra Coutu, LLP, whose report is also contained in the

exhibit cited by the ALJ. (Dkt. 14, Pg ID 867). Plaintiff argues that this

ambiguity alone renders the ALJ’s disability determination unsupported by

substantial evidence. Id.

Plaintiff further contends that, even assuming arguendo that the ALJ was

relying on Dr. Mill’s assessment when he refers to Dr. Cohn’s assessment, the

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ALJ failed to properly consider the entirety of Dr. Mills’ opinion evidence. Id. 

Despite assigning great weight to Dr. Cohn’s (Dr. Mills’) assessment, plaintiff

points out that the ALJ ignores the assessment’s specific indication that plaintiff

would have difficulty maintaining safety standards and work routines and would

have difficulties with social interactions and responding appropriately to changes

to work routine due to his current mental status. Id. Plaintiff also contends that

the ALJ ignored the assessment’s specific notation of plaintiff’s poor

concentration and thus erred in not including any concentrational limitations in the 

RFC assessment. (Dkt. 14, Pg ID 868). Plaintiff argues that the ALJ’s failure to

explain his reasons for accepting some, but not all of the limitations set forth in the

assessment to which he assigned great weight requires remand because the

decision does not provide an adequate path of reasoning to permit appropriate

judicial review and demonstrates improper cherry-picking. Id.

Plaintiff asserts that the ALJ erred by failing to properly account for

plaintiff’s moderate limitations in concentration, persistence and pace (“CPP”) in

his RFC and the corresponding hypothetical presented to the vocational expert

(“VE”). (Dkt. 14, Pg ID 869). The ALJ determined that plaintiff had “moderate”

limitations in maintaining CPP, i.e., that plaintiff was moderately impaired in his

“ability to sustain focused attention and concentration sufficiently long to permit

the timely and appropriate completion of tasks commonly found in work settings,”

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20 C.F.R. pt. 404, subpt. P, app’x, §12.00(C)(3); however, in formulation of his

RFC assessment and hypothetical questions to the VE, the ALJ failed to include

limitations that were specific to the CPP limitations he had previously assessed.

(Dkt. 11-2, Pg ID 52). Instead, the ALJ’s non-exertional restrictions only limited

plaintiff to “simple, routine tasks; no contact with the general public; and only

incidental contact with coworkers.” Id. Plaintiff contends that these limitations

do not accurately portray his mental impairments and thus cannot serve as

substantial evidence in support of the conclusion that plaintiff can perform other

work. (Dkt. 14, Pg ID 869).

Plaintiff urges that the ALJ erred by failing to consider the Department of

Veterans Affairs (VA)’s disability determination. (Dkt. 14, Pg ID 872). Although

it is well-settled that disability decisions by any other governmental agencies, such

as the VA, are based on that agency’s rules and are not binding on the

Administration, plaintiff argues that disability decisions made by any other

governmental agency are evidence that adjudicators must consider. Id. (citing 20

C.F.R. § 404.1504; 20 C.F.R. § 404.1512(b)(5)). Furthermore, according to

plaintiff, when making a determination, adjudicators should explain the

consideration they give to evidence in the record of another agency’s disability

decision. See SSR 06-03p. Plaintiff argues that the ALJ erred by failing to

reference or analyze the VA rating decision of 90% disabled (70% due to mental

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health limitations) in his determination and that this case should be remanded for

proper consideration of this evidence on that basis.

Finally, plaintiff asserts that the ALJ erred by failing to properly evaluate

plaintiff’s credibility under Social Security Ruling (SSR) 96-7p. (Dkt. 14, Pg ID

873). Specifically, plaintiff contends that the ALJ failed to set forth sufficiently

specific reasons as to why he found plaintiff’s testimony and statements not

credible; making only a brief summary of Plaintiff’s testimony. (Dkt. 14, Pg ID

874). According to plaintiff, the only support the ALJ offered was a conclusory

statement that “[t]he objective medical evidence does not fully corroborate the

claimant’s testimony regarding the extent of his limitations.” Id. (citing Dkt. 11-2,

Pg ID 52-53). Plaintiff asserts that this vague reasoning cannot be said to be

supported by substantial evidence for multiple reasons. 

First, the ALJ fails to even identify which objective evidence plaintiff’s

statements are inconsistent with and does not provide any analysis whatsoever

linking plaintiff’s statements to the medical evidence. (Dkt. 14, Pg ID 874-75).

Second, plaintiff’s disability is largely psychological in nature, which is not

demonstrated through objective testing. As the record reflects, psychological

conditions are assessed through subjective reports and clinical assessments and

evaluations. The ALJ does not consider this evidence as part of his credibility

determination. (Dkt. 14, Pg ID 875). Although the ALJ purports to rely on

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plaintiff’s testimony that he “is able to care for his personal needs, care for his 3

year old son, perform household chores, grocery shop, and drive.” (Dkt. 11-2, Pg

ID 50), plaintiff asserts that a proper review of his testimony reveals that he

testified much differently than the ALJ portrays in his decision. (Dkt. 14, Pg ID

875). Namely, plaintiff emphasizes his testimony that his medications cause him

to be drowsy and “loopy,” that his roommate does most of the household chores,

such as cooking, laundry, and grocery shopping and that he experiences anger and

depression, along with anxiety attacks. Id. He testified about how “messed up”

his life is, and that he does not leave his house very much or interact with anyone,

that he has not “been able to get up the nerve to go movies, bars, or anything like

that.” Id. He explained that he feels paranoid around groups of people, that he has

felt the urge to check rooms in other peoples’ homes, that he has difficulty

concentrating and focusing due to his psychological conditions, and has

flashbacks and nightmares of being in a fire fight, or dealing with stressful military

situations. (Dkt. 14, Pg ID 876). Plaintiff also cites his testimony that he has

custody of his young son because the State of Michigan had declared his ex-wife

as unfit, due to problems with drugs, fraud, and neglect, and that he receives help

with his son from his father and step-mother. Id. 

In sum, plaintiff argues that the ALJ’s credibility determination is not

supported by substantial evidence, made with a very brief summary discussion of

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plaintiff’s testimony, and lacks compliance with Social Security’s own rulings and

regulations; as a result, remand is required.

C. The Commissioner’s Motion for Summary Judgment

The Commissioner responsively argues that the ALJ properly considered the

consultive examiner’s opinion. First, the Commissioner contends that the ALJ

clearly reviewed and analyzed Dr. Mill’s opinion and the incorrect references to

Dr. Cohn were merely harmless scrivener errors because the ALJ correctly cited to

Dr. Mill’s opinion and accurately described its contents. (Dkt. 15, Pg ID 892).

Substantively, the Commissioner argues that the ALJ properly evaluated Dr.

Mills’ opinion. The Commissioner notes that the ALJ assigned the opinion great

weight, rather than adopting it, and thus was justified in accepting some, but not

all of the limitations set forth in the opinion in the RFC. (Dkt. 15, Pg ID 893). The

Commissioner argues that the ALJ correctly noted that plaintiff’s activities of

daily living belied some of the limitations assessed by Dr. Mills and thus were

appropriately discounted in constructing the RFC. Id.

The Commissioner also contends that the ALJ properly accounted for

plaintiff’s concentration deficit in the RFC. The Commissioner maintains that,

under recent district precedent and contrary to plaintiff’s argument, a restriction to

simple, unskilled work adequately addresses moderate concentration difficulties.

(Dkt. 15, Pg ID 895).

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The Commissioner contradicts plaintiff’s argument that the ALJ failed to

consider the VA’s award of disability benefits to plaintiff, noting that the ALJ

specifically references the VA award in the decision. (Dkt. 15, Pg ID 896-97).

Moreover, the Commissioner emphasizes that the VA disability determination

differs significantly from the Social Security disability determination. (Dkt. 15,

Pg ID 897). According to the Commissioner, VA disability accounts for deficits

in both work and non-work related functioning and is based on the average

impairment to earning capacity resulting from the pertinent conditions or injuries.

By contrast, Social Security disability is based exclusively on an individual’s

ability to work in existing jobs in the national economy. Id. The Commissioner

argues that these differing standards limit the relevance one determination has to

the other. Id. The Commissioner illustrates this argument by noting that the VA

based its disability determination on plaintiff’s mild degenerative disc disease and

lumbar strain, sleep apnea, limited range of wrist motion, and acne, as well as his

mood disorder and PTSD, and specifically determined that only his back and

mental conditions had any impact on his ability to work. (Dkt. 15, Pg ID 898).

Accordingly, the Commissioner concludes that the ALJ properly considered

plaintiff’s VA disability award in his disability determination.

Finally, the Commissioner argues that substantial evidence supports the

ALJ’s credibility determination of the plaintiff. Id. First, an ALJ’s credibility

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determinations are afforded great weight. Id. The Commissioner further contends

that consistency, internal and with the case record as a whole, is a strong

indication of credibility and that the ALJ cited inconsistencies in plaintiff’s

testimony and the record evidence sufficient to support his finding of plaintiff

being less than fully credible. Id.

D. Plaintiff’s Reply

In his reply, plaintiff asserts that the ALJ impermissibly ignored evidence

that did not support his RFC and reiterates that the ALJ’s disability determination

was based on a cherry-picked record, not supported by substantial evidence and

must be remanded for proper evaluation. (Dkt. 16, Pg ID 906-07).

Plaintiff also reiterates his arguments that: the ALJ’s RFC and the

hypothetical questions posed to the VE do not accurately portray plaintiff’s

moderate limitations with concentration, persistence and pace and thus do not

support the non-disability determination, and; the ALJ did not properly consider

the plaintiff’s disability determination by the VA, specifically that he was 70%

disabled by his mental health impairments alone, and that this is not harmless error

because if accorded proper weight, this evidence could change the determination.

(Dkt. 16, Pg ID 907-08).

Plaintiff argues that the Commissioner’s arguments to support the ALJ’s

credibility assessment are post-hoc rationalizations which represent the defense

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counsel’s rationale rather than that of the ALJ; the ALJ’s underlying credibility

assessment is not supported by substantial evidence and thus justifies remand.

(Dkt. 16, Pg ID 909).

III. DISCUSSION

A. Standard of Review

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

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

reviews the agency determination for exceeding statutory authority or for being

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

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

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

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

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

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

1986).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

F.3d 532, 542 (6th Cir. 2007) (the “ALJ’s credibility determinations about the

claimant are to be given great weight, particularly since the ALJ is charged with

observing the claimant’s demeanor and credibility.”) (quotation marks omitted);

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

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

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

credibility determinations based solely upon an ‘intangible or intuitive notion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B. Governing Law

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

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

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

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

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

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

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

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

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

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

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

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

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“Disability” means:

inability to engage in any substantial gainful activity by

reason of any medically determinable physical or mental

impairment which can be expected to result in death or

which has lasted or can be expected to last for a

continuous period of not less than 12 months.

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); see also 20 C.F.R. § 416.905(a)

(SSI).

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

through the application of a five-step sequential analysis:

Step One: If the claimant is currently engaged in

substantial gainful activity, benefits are denied without

further analysis.

Step Two: If the claimant does not have a severe

impairment or combination of impairments, that

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

basic work activities,” benefits are denied without

further analysis.

Step Three: If plaintiff is not performing substantial

gainful activity, has a severe impairment that is expected

to last for at least twelve months, and the severe

impairment meets or equals one of the impairments listed

in the regulations, the claimant is conclusively presumed

to be disabled regardless of age, education or work

experience.

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

past relevant work, benefits are denied without further

analysis.

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

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

national economy that plaintiff can perform, in view of

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

are denied.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

differently and even where substantial evidence supports the opposite conclusion. 

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

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

C. Analysis and Conclusion

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

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

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

of a consulting physician which are favorable to a claimant. See Lashley v. Sec’y,

708 F.2d 1048, 1054 (6th Cir. 1983). While the responsibility for determining a

claimant’s residual functional capacity resides with the ALJ, see 20 C.F.R.

§§ 404.1546(c), 416.946, “an ALJ nonetheless cannot substitute his ‘medical’

opinion for that of a treating or examining doctor.” Fleischer v. Astrue, 774 F.

Supp. 2d 875, 881 (N.D. Ohio 2011) (quoting Potter v. Astrue, 2010 WL 2679754

at *11 (S.D. Ohio June 2, 2010)). In rendering his decision, the ALJ must give

some indication of the evidence upon which he is relying, and he may not ignore

evidence that does not support his decision, especially when that evidence, if

accepted, would change his analysis. Id. (citing Bryan v. Comm’r of Soc. Sec., 383

Fed.Appx. 140, 148 (3d Cir. 2010)). “The ALJ has an obligation to ‘consider all

evidence before him’ when he ‘mak[es] a residual functional capacity

determination,’ and must also ‘mention or refute [...] contradictory, objective

medical evidence’ presented to him.” Burnett v. Comm’r of Soc. Sec., 220 F.3d

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112, 121 (3d Cir. 2000); see also SSR 96-8p, at *7 (“The RFC assessment must

always consider and address medical source opinions. If the RFC assessment

conflicts with an opinion from a medical source, the adjudicator must explain why

the opinion was not adopted.”).

In the case at bar, consulting examiner Dr. Terrance Mills determined in his

Psychological Assessment that plaintiff suffers from PTSD, generalized anxiety

disorder, depression, an Impulse Control Disorder and possibly Intermittent

Explosive Disorder. (Dkt. 11-9, Pg ID 837-38). Dr. Mills observed that plaintiff

did not have difficulty carrying out one-step instructions, but he demonstrated

poor concentration, was easily distracted, and was noted to jump from topic to

topic. Id. Dr. Mills’ colleague, Sandra Coutu, MA, a limited license psychologist

who cosigned the assessment and signed the Medical Source Statement included

therein, likewise observed that plaintiff became confused if asked to respond to

more than one question. (Dkt. 11-9, Pg ID 843). Dr. Mills noted throughout the

report that plaintiff was anxious, constantly shaking his leg or foot. Id. Dr. Mills

also noted that plaintiff exhibited pressured, circumstantial speech. (Dkt. 11-9, Pg

ID 835). Based on his examination of plaintiff, Dr. Mills opined that plaintiff

would have difficulty maintaining safety standards and work routines due to his

mental illness. (Dkt. 11-9, Pg ID 838). He further opined that plaintiff would

have difficulty with social interactions and responding appropriately to changes in

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a work routine. Id. Ms. Coutu noted on the Medical Source Statement that

plaintiff’s inability to interact with others without frustration and anger was

obvious, he was easily irritated by others, and suspicious of others, and when

suspicious, his reaction could be violent. (Dkt. 11-9, Pg ID 844).

The ALJ purportedly gave Dr. Mills’ evaluation great weight in 2

constructing plaintiff’s RFC, finding that it was based on a thorough evaluation of

the plaintiff and consistent with the objective clinical findings. (Dkt. 11-2, Pg ID

54). Nevertheless, the ALJ, without explanation or discussion, ignores a number

of Dr. Mills’ findings and opinions which arguably run counter to a finding of no

disability. Although the ALJ incorporates some aspects of Dr. Mills’ opinions

with the restriction to only simple, routine tasks, no contact with the general

public, and only incidental contact with coworkers, the decision does not address

plaintiff’s noted poor concentration, easy distractibility, difficulty maintaining

safety standards and work routines and inability to respond appropriately to

changes in work routines. (Dkt. 11-2, Pg ID 52; Dkt. 11-9, Pg ID 838). 

The ALJ does not offer a rationale for rejecting or discounting some of Dr.

Mills’ opinions, nor does he discuss or even mention the opinions not incorporated

 The ALJ’s repeated reference to the consulting examiner as “Dr. Cohn,” rather than Dr. 2

Mills seems to be merely scrivener error, as record citations and substantive references align with

Dr. Mills’ evaluation in the case record. Moreover, even if this mistake amounted to more than

harmless error, the outcome would be the same because the undersigned is recommending

remand for other reasons.

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in the RFC. That the ALJ has seemingly ignored portions of the consulting

examiner’s opinion he otherwise endorsed is particularly troubling in light of other

objective findings in the case record that are consistent with the overlooked

opinions. For example, with regard to plaintiff’s social interactions, his therapist

William Miles, LLMSW, notes that plaintiff is uncomfortable with crowds and

3

easily agitated by perceived disrespect. (Dkt. 11-9, Pg ID 786). Mr. Miles opines

that plaintiff does not function well with others in general, and notes “marked

agitation with negative outbursts.” (Dkt. 11-9, Pg ID 789). Similarly, Ms. Coutu

observed plaintiff’s obvious inability to interact with others without frustration

and anger, his easy irritation and suspicion of others, and notes that his reaction

when suspicious could be violent. (Dkt. 11-9, Pg ID 844). Also mirroring the

overlooked opinions of Dr. Mills, Mr. Miles’ and Ms. Coutu’s opinions indicate

that plaintiff has moderate difficulties maintaining concentration, persistence and

pace, trouble focusing, is often overwhelmed, and would miss four or more days of

work per month due to the symptoms or treatment of his impairments. (Dkt. 11-9,

4

Pg ID 786-89).

The undersigned finds that the ALJ’s selection of certain of Dr. Mills’

 Notably, the ALJ gave Mr. Miles’ report little weight because he found it to be 3

inconsistent with the record as a whole, despite its concurrence with Dr. Mills’ assessment.

 Mr. Miles’ opinion that plaintiff would miss work as a result of his mental health 4

impairments corresponds with Dr. Mills’ assessment that plaintiff would have difficulty

maintaining work routines due to his mental status. (Dkt. 11-9, Pg ID 838). 

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opinions without an analysis, discussion, or even mention of his other omitted

opinions, despite support of these omitted opinions by other objective evidence in

the case record, amounts to the improper cherry picking of evidence routinely

rejected by courts in this district. See Fleischer, 774 F. Supp. 2d at 881; see also,

Davis v. Comm’r of Soc. Sec., 2011 WL 7330518, at *8 (E.D. Mich. Oct. 27,

2011); report adopted by 2012 WL 511937 (Feb. 16, 2012). Consequently, the

undersigned concludes that this matter should be remanded so that the ALJ can

appropriately consider all of the opinions of the consulting examiner regarding

plaintiff’s residual functional capacity. Because this matter is being recommended

for remand for further proceedings, and in the interests of judicial economy, the

undersigned will not consider plaintiff’s remaining assignments of error.

IV. RECOMMENDATION

For the reasons set forth above, the undersigned RECOMMENDS that

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

for summary judgment be DENIED, that the findings of the Commissioner be

REVERSED, and that this matter be REMANDED for further proceedings.

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

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of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health and

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some

issues but fail to raise others with specificity will not preserve all the objections a

party might have to this Report and Recommendation. Willis v. Sec’y of Health

and Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of

Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to Local Rule

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

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

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

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

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

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

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

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

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

rule without awaiting the response.

Date: February 17, 2016 s/Stephanie Dawkins Davis

Stephanie Dawkins Davis

United States Magistrate Judge

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CERTIFICATE OF SERVICE

I certify that on February 17, 2016, I electronically filed the foregoing paper

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

notification to counsel of record.

s/Tammy Hallwood

Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov

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