UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

 

TERISA LYN PICKELL, 

 Plaintiff, CIVIL ACTION NO. 14-cv-12824 

 v. DISTRICT JUDGE MATTHEW F. LEITMAN 

COMMISSIONER OF MAGISTRATE JUDGE MONA K. MAJZOUB

SOCIAL SECURITY, 

 

 Defendant. 

_________________________/ 

 

REPORT AND RECOMMENDATION 

Plaintiff Terisa Pickell 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. 10) 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. 2.) 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. 10) be GRANTED IN PART and Defendant’s Motion for Summary 

Judgment (docket no. 12) be DENIED. It is further recommended that the Commissioner’s 

denial of Plaintiff’s claims for benefits be reversed and this matter be remanded pursuant to 

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sentence four of 42 U.S.C. § 405(g) for further proceedings in consideration of Plaintiff’s 

moderate difficulties with concentration, persistence, or pace. 

II. PROCEDURAL HISTORY

 Plaintiff filed an application for a period of disability and disability insurance benefits 

with a protective filing date of September 27, 2011, alleging that she has been disabled since 

May 1, 2008, due to memory loss, a back injury, two herniated discs, a splenectomy, irritable 

bowel syndrome, high eye pressure, and “ITP Immune Thrombouytopenia Purpren.” (TR 102-

08, 116, 120.) The Social Security Administration denied Plaintiff’s claims on November 29, 

2011, and Plaintiff requested a de novo hearing. (TR 48-57, 65.) On November 1, 2012, 

Plaintiff appeared with a representative and testified at the hearing before Administrative Law 

Judge (ALJ) Thomas L. Walters. (TR 21-47.) In a January 11, 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 9-17.) The Appeals Council declined to review 

the ALJ’s decision (TR 1-4), 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 as well as a thorough 

summary of her medical record and hearing testimony. (Docket no. 10 at 3-10.) 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 13-16, 17.) Defendant 

adopts the ALJ’s factual recitation and concurs with Plaintiff’s factual summary to the extent that 

it is consistent with that of the ALJ. (Docket no. 12 at 5.) There are no material inconsistencies 

between Plaintiff’s and the ALJ’s accounts of the record; therefore, the undersigned will 

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incorporate these factual recitations by reference. Additionally, the undersigned has conducted 

an independent review of Plaintiff’s 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 between the 

alleged onset date of May 1, 2008 and the date last insured of March 31, 2011, and that Plaintiff 

suffered from the following severe impairments: degenerative disc disease lumbar spine, ocular 

hypertension, episcleritis, irritable bowel syndrome (IBS), idiopathic thrombocytopenic purpura 

(ITP) status post splenectomy, and depression with symptoms of memory loss. (TR 11.) 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 11-13.) The ALJ then 

found that Plaintiff had the following residual functional capacity (RFC): 

[T]hrough the date last insured, the claimant had the residual functional capacity 

to perform light work as defined in 20 CFR 404.1567(b) except that the claimant 

is limited [to] no prolonged walking beyond 100 yards and is unable to work 

around moving machinery or unprotected heights. In addition, the claimant is 

limited to unskilled work with limited dealings [with] the public. 

(TR 13-16.) 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 16-17.) 

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

time from May 1, 2008, through the date last insured of March 31, 2011. (TR 17.) 

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 

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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”).

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 

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(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 

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. § 

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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 asserts that this matter should be reversed and remanded under sentence four 

because (1) “[t]he ALJ’s RFC analysis fails to adequately account for [P]laintiff’s physical 

problems and is unsupported by substantial evidence” and (2) “[t]he ALJ’s analysis of 

[P]laintiff’s mental limitations was not supported by substantial evidence and his RFC 

assessment does not incorporate limiting factors he himself found existed.” (Docket no. 10 at 

12-18.) 

 1. The ALJ’s Assessment of Plaintiff’s Physical RFC

 a. Plaintiff’s ITP Impairment 

 In step two of the sequential evaluation process, the ALJ found that Plaintiff had a severe 

impairment of idiopathic thrombocytopenic purpura (ITP) status post splenectomy. (TR 11.) 

Plaintiff informs that ITP is defined by Mayo Clinic as a disorder that can lead to easy or 

excessive bruising or bleeding as a result of unusually low platelet levels. (Docket no. 10 at 5.) 

Plaintiff argues that the ALJ’s physical RFC assessment does not account for the limitations 

suffered by Plaintiff as a result of ITP. (Id. at 12-13.) In his decision, the ALJ acknowledged 

that Plaintiff’s ITP had been in remission until a couple years prior and that her recent treatment 

for ITP was quite involved. (TR 14.) He noted that Plaintiff suffered symptoms of fatigue, 

increased bruising, cold sweats, and general achiness. The ALJ then discussed the findings of 

Plaintiff’s treating physicians of pain in Plaintiff’s upper left quadrant, mild bruising in 

Plaintiff’s upper extremities, and a lack of edema or petechiae. The ALJ also discussed the 

ineffectiveness of Plaintiff’s medications and the splenectomy that Plaintiff eventually 

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underwent. Finally, the ALJ pointed out that Plaintiff’s platelet levels had since stabilized, but 

were not yet in a normal range. The ALJ found that Plaintiff had the physical residual functional 

capacity to perform light work except that she was unable to walk distances greater than 100 

yards and could not work around moving machinery or unprotected heights. (TR 13.) 

 Plaintiff claims that the ALJ’s analysis of Plaintiff’s ITP and the resulting physical RFC 

is inadequate. As support for her position, Plaintiff recites her subjective complaints of fatigue, 

pain, and trouble sleeping, as well as her claims that she takes frequent daily naps. Plaintiff also 

directs the Court’s attention to the VE’s testimony that Plaintiff’s alleged postural limitations 

combined with Plaintiff’s daily schedule, in which she spent most of her day trying to 

accommodate her limitations, pain, and frequent periods of lying down, would preclude work. 

(Docket no. 10 at 12-13 (citing TR 45).) Nevertheless, Plaintiff is unable to point to any opinion 

from her treating physicians regarding her functional limitations caused by the ITP on which the 

ALJ should have relied. Also, other than a self-proclaimed need to take daily naps, Plaintiff does 

not specify what additional functional limitations the ALJ should have included in the physical 

RFC. The ALJ adequately considered the objective medical evidence and Plaintiff’s subjective 

complaints regarding her ITP diagnosis in formulating Plaintiff’s physical RFC. As further 

discussed below, the ALJ properly found those subjective complaints to be incredible. 

b. Plaintiff’s Credibility 

Next, Plaintiff challenges the ALJ’s credibility finding. (Docket no. 10 at 13-15.) “[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 

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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 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. § 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, (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 pain relief, (6) any measures used to relieve 

the pain, and (7) functional limitations and restrictions due to the pain. See 20 C.F.R. § 

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 medical record and hearing testimony 

and found that Plaintiff’s allegations of total disability were not entirely credible. (TR 15.) In 

making this determination, the ALJ reasoned that Plaintiff’s self-described daily activities were 

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not limited to the extent that one would expect given her complaints of disabling symptoms and 

limitations. The ALJ then cited several examples of Plaintiff’s daily activities, such as preparing 

simple meals, doing housework, caring for her pets, shopping, reading, crocheting, driving and 

riding in a car, socializing with friends and family, and going for short walks. The ALJ also 

reasoned that the limited amount of treatment sought by Plaintiff was unexpected in light of her 

allegations. The ALJ specifically noted that Plaintiff had not participated in outpatient 

psychotherapy for her alleged mental impairments and had not undergone regular treatment for 

her back impairment. 

Plaintiff argues that the daily activities cited by the ALJ in his credibility analysis do not 

support a finding that Plaintiff can perform light work and that the physical effort required to 

perform those activities would not even rise to the level applicable to sedentary work. (Docket 

no. 10 at 13-14.) Defendant argues that the “issue is not, however, whether Plaintiff’s daily 

activities are equivalent to light work activities.” (Docket no. 12 at 13.) The Court agrees; 

Plaintiff’s argument misses the mark. The ALJ did not find that Plaintiff can perform light work 

because she is able to perform the aforementioned daily activities. Rather, the ALJ found that 

Plaintiff’s statements regarding the intensity, persistence, and limiting effects of her symptoms 

were less than credible in light of Plaintiff’s ability to perform those activities. Furthermore, the 

ALJ did not base his credibility determination solely on Plaintiff’s daily activities; he also 

considered the record evidence and factored Plaintiff’s lack of treatment for her mental and back 

impairments into his assessment. The undersigned finds that the ALJ’s decision is sufficiently 

specific to make clear to Plaintiff and to the Court the weight that he gave to Plaintiff’s 

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

supported by substantial evidence.

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c. The State Agency Medical Consultant’s Opinion 

Plaintiff also challenges the ALJ’s decision to give great weight to the opinion of the 

State agency medical consultant, Dr. B.D. Choi, M.D. (Docket no. 10 at 15.) Social Security 

Ruling 96-6p states that an ALJ must consider the findings made by State agency medical 

consultants regarding the nature and severity of an individual’s impairments as expert opinion 

evidence of a nonexamining source. SSR 96-6p, 1996 WL 374180, at *2 (July 2, 1996). The 

Ruling further states that ALJ’s are not bound by findings made by State agency physicians, but 

they may not ignore these opinions and must explain the weight given to these opinions in their 

decisions. Id. The opinions of State agency medical consultants “can be given weight only 

insofar as they are supported by evidence in the case record, considering such factors as the 

supportability of the opinion in the evidence including any evidence received at the 

administrative law judge and Appeals Council levels that was not before the State agency, [and] 

the consistency of the opinion with the record as a whole . . . .” Id. 

On November 29, 2011, Dr. Choi examined Plaintiff’s medical records and determined 

that Plaintiff was able to perform light work with occasional postural and environmental 

limitations. (TR 53-55.) Specifically, Dr. Choi found that Plaintiff was able to lift twenty 

pounds occasionally and ten pounds frequently; stand and/or walk for a total of six hours in an 

eight-hour workday; sit for a total of six hours in an eight-hour workday; and occasionally climb, 

balance, stoop, kneel, crouch, or crawl; but should avoid concentrated exposure to extreme 

temperatures, humidity, vibrations, and hazards. The ALJ found that Dr. Choi’s RFC assessment 

was reasonable and consistent with the objective medical evidence and assigned great weight to 

Dr. Choi’s opinion. (TR 15-16.) 

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Plaintiff argues that the ALJ erred in assigning great weight to Dr. Choi’s opinion 

because Dr. Choi did not examine Plaintiff and did not have Plaintiff’s full medical record before 

him. Dr. Choi’s RFC assessment reveals that he reviewed Plaintiff’s records dated as late as 

September 2011 (TR 54); however, Plaintiff claims that Dr. Choi had insufficient knowledge of 

Plaintiff’s subsequent progress, especially because he did not examine Dr. Beekman’s November 

2011 and April 2012 findings. As Defendant points out, though, Dr. Beekman’s November 2011 

and April 2012 findings (TR 296-99) are beyond the relevant time period, as Plaintiff’s date last 

insured was March 31, 2011. (Docket no. 12 at 15.) More importantly, Dr. Beekman’s 

November 2011 and April 2012 findings offer no new evidence regarding Plaintiff’s condition 

during the alleged period of disability. Accordingly, the fact that Dr. Choi did not have access to 

Plaintiff’s complete medical record when he assessed Plaintiff’s physical RFC does not mandate 

a discounting of his opinion. 

Plaintiff further asserts that the ALJ should have relied on Plaintiff’s testimony or the 

findings of her “various treating physicians” instead of Dr. Choi’s opinion. (Docket no. 10 at 

15.) But an ALJ is only required to rely on a claimant’s testimony to the extent he finds it 

credible, and as discussed above, the ALJ found that Plaintiff’s allegations were not entirely 

credible. With regard to Plaintiff’s “various treating physicians,” Plaintiff does not point to any 

medical opinion from a treating physician on which the ALJ should have relied, and the Court 

finds none. See Bush v. Astrue, No. 12-11790, 2013 WL 1747807, *14 (E.D. Mich. Jan 25, 

2013) (Grand, M.J.) (quoting Martinez v. Comm’r of Soc. Sec., No. 09-13700 (E.D. Mich. Mar. 

2, 2011)) (The “‘court is under no obligation to scour the record for errors not identified by [the] 

claimant.’”). Defendant correctly argues that “[w]here the record contains no detailed functional 

assessment for Plaintiff from her treating physicians, the functional capacity assessment from Dr. 

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Choi remains important evidence upon which the ALJ was entitled to rely.” (Docket no. 12 at 

15-16 (citing Watts. v. Comm’r of Soc. Sec., 179 F. Appx 290, 294 (6th Cir. 2006) (“[N]one of 

[the plaintiff’s] treating doctors during the relevant period . . . made detailed functional capacity 

analyses, which leaves the functional capacity forms from the medical reviewers as the best 

evidence.”)).) Plaintiff’s arguments with regard to the ALJ’s assessment of Dr. Choi’s opinion 

fail. 

Finally, Plaintiff challenges the ALJ’s explanation of his physical RFC assessment, that 

“[t]he objective findings and symptoms have been reasonably considered within the above 

residual functional capacity and there is no evidence to support further physical restrictions,” as 

inadequate where the ALJ expressly found problems and then failed to account for those 

problems in Plaintiff’s RFC. (Docket no. 10 at 15.) Plaintiff does not further develop this 

argument with relevant law or facts, and the Court declines to address it. As discussed herein, 

each of Plaintiff’s arguments in support of his overall position that the ALJ’s physical RFC 

determination is unsupported by substantial evidence fail. Plaintiff’s Motion should be denied in 

this regard. 

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

Plaintiff asserts that the ALJ’s assessment of Plaintiff’s mental RFC, which limits 

Plaintiff to unskilled work and limited dealings with the public, does not account for Plaintiff’s 

mental impairments and limitations. (Docket no. 10 at 16.) In step three of the sequential 

evaluation process, the ALJ evaluated Plaintiff’s severe mental impairment of “depression with 

symptoms of memory loss” pursuant to 20 C.F.R. § 404.1520(a) and concluded that Plaintiff had 

mild restrictions in activities of daily living, mild difficulties in maintaining social functioning, 

moderate difficulties in maintaining concentration, persistence, or pace, and had suffered no 

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episodes of decompensation. (TR 11-13.) Neither party challenges these findings. Essentially, 

then, Plaintiff’s argument is that the ALJ did not include these limitations caused by his mental 

impairments in the RFC. 

Indeed, Plaintiff specifically argues that the ALJ’s mental RFC assessment and the 

hypothetical questions posed to the VE failed to take into account her moderate deficits in 

concentration, persistence, or pace as determined by the ALJ himself. (Docket no 10 at 16-18.) 

The ALJ is required to present a hypothetical question that “accurately portrays [the plaintiff’s] 

individual physical and mental impairments” in order for the VE’s response to constitute 

substantial evidence. Varley, 820 F.2d at 779 (citations omitted). When the ALJ makes a 

finding that a claimant has moderate limitations in concentration, persistence or pace, “but does 

not specifically include that limitation in the hypothetical question, the question is whether the 

ALJ used adequate alternate concrete job restrictions in the hypothetical question that suitably 

accommodated the worker’s . . . limitations.” Tinker v. Astrue, No. 08-11675, 2009 WL 

3064780, at *8 (E.D. Mich. Sept. 22, 2009). 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). However, a claimant with moderate deficits in concentration, persistence, or 

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

unskilled, routine job.” Edwards v. Barnhart, 383 F. Supp. 2d 920, 930 (E.D. Mich. 2005). 

Plaintiff relies on Edwards, supra, and Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 516 

(6th Cir. 2010) to support her argument for remand on this matter. (Docket no. 10 at 17.) 

Plaintiff asserts that the Ealy court reversed an ALJ’s decision where the ALJ limited the 

claimant to simple, routine work without further explanation of how the claimant’s limitations 

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with regard to attention and concentration impacted the claimant’s ability to work. (Id.) 

Defendant, however, points to a decision from this district that clarifies the holding in Ealy and 

deflates Plaintiff’s argument. (Docket no. 12 at 18 (citing Despain v. Comm’r of Soc. Sec., No. 

13-14378, 2014 WL 6686770, at *12 (E.D. Mich Nov. 26, 2014)).) In Despain, Magistrate 

Judge Whalen explained: 

. . . Ealy does not hold that the terms “simple, repetitive, routine” or similar 

descriptives are intrinsically inadequate to address moderate CPP deficiencies. 

Rather, the Ealy Court determined that the hypothetical limitations of “simple, 

repetitive” (drawn from a non-examining medical source) impermissibly 

truncated the source's conclusion that the claimant should be limited to “simple 

repetitive tasks to ‘[two-hour] segments over an eight-hour day where speed was 

not critical.’” 

Despain, 2014 WL 6686770, at *12 (citing Ealy, 594 F.3d at 516). Defendant further cites 

Despain for the notion that the ALJ in this matter “was not required to include moderate 

limitations in concentration, persistence, or pace in the hypothetical question to the vocational 

expert.” (Docket no. 12 at 18.) But Despain does not stand for that notion. Rather, Magistrate 

Judge Whalen stated that “the ALJ was not required include the phrase ‘moderate limitations in 

concentration, persistence, or pace’ in the question to the VE.” Despain, 2014 WL 6686770, at 

*13 (emphasis added). Furthermore, Despain is distinguishable from the instant matter because 

the ALJ in Despain limited the claimant to “simple, routine, repetitive tasks performed in a work 

environment free of fast-paced production requirements involving only simple work-related 

decisions and routine workplace changes.” Id., at *12. Such limitations are more extensive than 

the ALJ’s mental RFC assessment in this matter, in which the ALJ limited Plaintiff to “unskilled 

work with limited dealings [with] the public.” 

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 

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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). 

Furthermore, “[w]here the ALJ finds that a claimant has deficiencies in concentration, 

persistence and pace, [the] failure to account for such deficiencies in the hypothetical question 

constitutes reversible error.” Kretzmer v. Comm’r of Soc. Sec., No. 11-15623, 2012 WL 

6642637, at *4 (E.D. Mich. Dec. 20, 2012) (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 which found similar 

moderate deficiencies and which indicated that the plaintiff was still capable of 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)). 

Here, the ALJ stated that the record evidence, including Plaintiff’s hearing testimony, 

reveals that Plaintiff “has some difficulty in sustaining focus, attention, and concentration 

sufficiently long enough to permit the timely and appropriate completion of tasks commonly 

found in work settings.” (TR 12.) Plaintiff’s medical record, however, contains no medical 

opinions from Plaintiff’s mental health providers regarding the functional limitations resulting 

from Plaintiff’s depression. Hence, the ALJ made an independent finding that Plaintiff has 

moderate difficulties with regard to concentration, persistence, or pace. The ALJ then fashioned 

an RFC and posed a hypothetical question to the VE that merely limited Plaintiff to unskilled 

work. (TR 13, 44.) It is well established that the difficulty of a task does not necessarily equate 

to the difficulty of staying on task. See e.g., Green v. Comm’r, No. 08-CV-11398-DT, 2009 WL 

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2365557, at *10 (E.D. Mich. July 28, 2009). The ALJ did not adequately address concentration, 

persistence, or pace limitations in her mental RFC assessment or hypothetical question to the VE. 

Without discussion from the ALJ, the Court is not able to assess whether the VE’s testimony 

constitutes substantial evidence. Accordingly, Plaintiff’s Motion regarding the ALJ’s assessment 

of Plaintiff’s mental RFC should be granted, and this matter should be remanded for further 

proceedings in consideration of Plaintiff’s moderate difficulties with concentration, persistence, 

or pace. 

VI. CONCLUSION

 For the reasons stated herein, the Court should GRANT IN PART Plaintiff’s Motion for 

Summary Judgment (docket no. 10) and DENY Defendant’s Motion for Summary Judgment 

(docket no. 12). The Commissioner’s denial of Plaintiff’s claims for benefits should be reversed, 

and this matter should be remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further 

proceedings in consideration of Plaintiff’s moderate difficulties with concentration, persistence, 

or pace. 

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 

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 

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17

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: August 12, 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: August 12, 2015 s/ Lisa C. Bartlett 

 Case Manager

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