UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CHERIE HARTSIG,

Plaintiff,

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

_____________________________________/

Case No. 14-14394

Avern Cohn

United States District Judge

Stephanie Dawkins Davis

United States Magistrate Judge

REPORT AND RECOMMENDATION

CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkt. 15, 16)

I. PROCEDURAL HISTORY

A. Proceedings in this Court

On November 15, 2014, plaintiff filed the instant suit seeking judicial

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

Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(b)(3), District Judge

Avern Cohn referred this matter to Magistrate Judge Michael Hluchaniuk for the

purpose of reviewing the Commissioner’s decision denying plaintiff’s claim for

benefits. (Dkt. 4). This matter was reassigned to the undersigned Magistrate

Judge on January 5, 2016, pursuant to administrative order. (See Text-Only Order

dated January 5, 2016). This matter is currently before the Court on cross-motions

for summary judgment. (Dkt. 15, 16).

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B. Administrative Proceedings

Plaintiff filed the instant claims for period of disability and disability

insurance benefits on May 8, 2012, alleging disability beginning March 15, 2012. 

(Dkt. 12-2, Pg ID 49). Plaintiff’s claim was initially disapproved by the

Commissioner on July 24, 2012. Id. Plaintiff requested a hearing and on May 6,

2013, plaintiff appeared, along with her attorney, before Administrative Law

Judge (ALJ) Melvyn B. Kalt, who considered the case de novo. (Dkt. 12-2, Pg ID

62-85). In a decision dated August 29, 2013, the ALJ found that plaintiff was not

disabled. (Dkt. 12-2, Pg ID 46-57). Plaintiff requested a review of this decision

on October 28, 2013. (Dkt. 12-2, Pg ID 45). The ALJ’s decision became the final

decision of the Commissioner when, after the review of additional exhibits, the

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Appeals Council on September 17, 2014, denied plaintiff’s request for review. 

(Dkt. 12-2, Pg ID 39-44); 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

In this circuit, where the Appeals Council considers additional evidence but denies a 1

request to review the ALJ’s decision, since it has been held that the record is closed at the

administrative law judge level, those “AC” exhibits submitted to the Appeals Council are not

part of the record for purposes of judicial review. See Cotton v. Sullivan, 2 F.3d 692, 696 (6th

Cir. 1993); Cline v. Comm’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996). Therefore, since

district court review of the administrative record is limited to the ALJ’s decision, which is the

final decision of the Commissioner, the court can consider only that evidence presented to the

ALJ. In other words, Appeals Council evidence may not be considered for the purpose of

substantial evidence review.

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plaintiff’s motion for summary judgment be GRANTED in part and DENIED in

part, that defendant’s motion for summary judgment be GRANTED in part and

DENIED in part, that the findings of the Commissioner be AFFIRMED in part

and REVERSED in part, and that this matter be REMANDED for further

proceedings as to plaintiff’s mental impairments.

II. FACTUAL BACKGROUND

A. ALJ Findings

Plaintiff was born in 1959 and was 52 years old on the alleged onset date. 

(Dkt. 12-2, Pg ID 56). Plaintiff’s last date insured was December 31, 2016. (Dkt.

12-2, Pg ID 51). The ALJ applied the five-step disability analysis to plaintiff’s

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

activity since the alleged onset date. Id. At step two, the ALJ found that

plaintiff’s carpal tunnel syndrome and DeQuervain’s tenosynovitis were “severe”

within the meaning of the second sequential step. 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. (Dkt. 12-2, Pg ID 52). The ALJ determined that

plaintiff had the residual functional capacity (RFC) to perform light work as

follows:

After careful consideration of the entire record, the

undersigned finds that the claimant has the residual

functional capacity to perform light work as defined in

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20 CFR 404.1567(b) except she can perform no repeated

grasping and fingering; she must be able to sit or stand as

she wishes; and there can be no requirement for writing

or typing. Further, the claimant is limited to simple, two

or three step jobs.

(Dkt. 12-2, Pg ID 52). At step four, the ALJ concluded that plaintiff could not

perform her past relevant work as a substance abuse counselor, administrative

assistant, manager, and pizza delivery driver. (Dkt. 12-2, Pg ID 56). At step five,

the ALJ denied plaintiff benefits because plaintiff could perform a significant

number of jobs available in the national economy. (Dkt. 12-2, Pg ID 56-57).

B. Plaintiff’s Claims of Error

According to plaintiff, there is no rationale or discussion of her medical

problems in the ALJ’s decision. Plaintiff asserts that the ALJ completely skips

steps two and three and only evaluates her carpal tunnel under the applicable

listings. Plaintiff contends that the ALJ improperly rejects her depression without

any evaluation under the listings, or the “Paragraph B” criteria. Moreover,

plaintiff maintains that the ALJ’s decision contains no explanation whatsoever for

the ALJ’s conclusions that plaintiff’s depression and anxiety are not severe

impairments. While mentioned in passing in the RFC discussion, plaintiff asserts

that the ALJ failed to evaluate her mental impairments at step two and three. And,

the ALJ never evaluated plaintiff’s severe impairment of headaches and chronic

pain; indeed, they are never mentioned at step two or three. According to plaintiff,

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the ALJ further made significant error in his findings that plaintiff’s

musculoskeletal impairments are non-severe. (Tr. 13, 14).

Plaintiff contends that the ALJ’s cursory approach is a flagrant violation of

her due process rights under both SSA regulations as well as the United States

Constitution. Again, the ALJ offers no explanation for his assessment that

plaintiff’s musculoskeletal impairments are non-severe. Rather, according to

plaintiff, the ALJ in an attempt to justify the findings states the findings of a CT

scan followed by a conclusory statement finding the impairment to be non-severe.

Id. Plaintiff says that there are voluminous medical records demonstrating her

severe limitations which include statements from her treating neurologist Dr.

Agner, MD, who states there is “restriction of motion” in the right shoulder. (Tr.

232). Thus, according to plaintiff, there is no reasoned explanation from the ALJ

for the rejection of plaintiff’s musculoskeletal impairments. 

Plaintiff also contends that the ALJ’s failure to give specific reasons and

explain precisely how those reasons affected the weight accorded to the opinions

is a legal error requiring reversal. In Varley v Secretary of HHS, 820 F.2d, 777,

779 (6th Cir. 1987), the court stated that the RFC assessment must accurately

portray the claimant’s physical and mental impairments. Plaintiff says that there is

no discussion of the evidence whatsoever in the ALJ decision; indeed, this is a

clear case of where an ALJ had a predetermined RFC and simply cherry picks

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facts to fit that RFC. Plaintiff maintains that the ALJ is so completely vague in his

decision on how he came to any conclusions and all factors point to an individual

who cannot maintain competitive employment.

Next, plaintiff argues that there is not a scintilla of evidence to support the

RFC assessment that she would be capable of work at the light exertional level

including work that requires lifting up to 20 pounds, standing, and walking on a

sustained basis. The ALJ never factors, or even attempts to factor, plaintiff’s

severe fatigue, severe pain, need to lie down, and reaching due to her right

shoulder issues. According to plaintiff, the ALJ makes no explanation on how he

found that plaintiff cannot perform repeated grasping and fingering, nor write or

type, but can lift and carry 20 pounds. 

Plaintiff points out that the ALJ never rejects any of plaintiff’s complaints

because they are simply never discussed in the decision. Rather, the ALJ states

that he does not find claimant credible; however, the ALJ never discusses or

evaluates her subjective complaints under 20 CFR 416.929. The ALJ severely

misstates and misquotes plaintiff throughout the decision. Plaintiff acknowledges

that while it is not necessary for the ALJ to discuss every factor under 20 CFR

416.929, the ALJ does have a duty to discuss more than the cherry-picked facts he

misrepresents throughout his decision. Plaintiff contends that here, the ALJ just

makes blanket statements dismissing the complaints of plaintiff and the entire

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decision is seemingly based on plaintiff’s ability to drive and check her e-mail. 

(Tr. 17). However, the ALJ fails to explain how driving and checking e-mail

equates to working a sustained 40-hour work week. Even assuming that plaintiff

performed all of these activities as alleged by the ALJ for limited periods, they do

not support the conclusions of the ALJ that claimant can work an 8-hour day on a

sustained basis. See Walston v. Gardner, 381 F2d 580, 585-586 (6th Cir. 1987)

(activities performed on an intermittent basis, standing alone, do not establish the

ability to perform such tasks on a sustained basis). According to plaintiff, the ALJ

provides no specific reasons or analysis for how he reached these limited

conclusions. 

Plaintiff also argues that there is never a discussion of what weight the ALJ

gave to the treating or non-treating medical sources except for one short paragraph

where he conveniently gives “significant weight” to the non-examining physician

Dr. Khalid “to the extent consistent with the residual functional capacity.” (Tr.

17). There is never a discussion of why or how the ALJ gave the RFC

determination he gave. In short, plaintiff argues that there is no discussion, no

rationale, and zero due process in the ALJ’s decision. According to Social

Security Ruling 96-8p, the ALJ “must” discuss these issues and is not free to

simply ignore the issue. However, according to plaintiff, the ALJ never complied

or even attempted to reconcile Social Security Ruling 96-8p with his decision. 

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The ALJ’s RFC of light work failed to “accurately portray the individual’s

physical and mental impairments” as required under Varley. Plaintiff maintains

that when one considers plaintiff’s serious physical and mental impairments, work

does not exist in significant numbers that she can perform.

C. The Commissioner’s Motion for Summary Judgment

The Commissioner acknowledges that, because this case was decided at the

fifth step, she had the burden of coming forward with evidence of other work

plaintiff could do, given her impairments. Jones v. Commissioner of Social

Security, 336 F.3d 469, 474 (6th Cir. 2003). However, the Commissioner also

points out that plaintiff retained the ultimate burden of persuasion even on this

point. Price v. Chater, 106 F.3d 401 (Table), 1996 WL 742206 at *2 (6th Cir.

1996). Even after the burden of coming forward with vocational evidence passes

to the Commissioner, the Commissioner never assumes any burden of proving the

non-existence of limitations alleged by a claimant. See 20 C.F.R.

§ 404.1560(c)(2); 68 Fed.Reg. 51,153, 51,155, 51,157. Here, plaintiff challenges

the ALJ’s finding as to her specific severe impairments, and her residual

functional capacity, contending that the ALJ did not properly evaluate either the

medical evidence or the credibility of her testimony that she had disabling

limitations. According to the Commissioner, however, she makes no express

challenge to the vocational evidence, other than implicitly questioning the

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adequacy of the hypotheticals presented to the expert by asserting the ALJ’s

ultimate residual functional capacity finding was not restrictive (or specific)

enough. Thus, the fundamental question here is whether plaintiff met her burden

of showing she had additional, significant functional limitations beyond those the

ALJ found.

The Commissioner first urges the Court to reject plaintiff’s step two

argument. According to the Commissioner, even if there were an error, so long as

the ALJ ultimately considers the cumulative impact of all impairments, severe and

non-severe, when assessing a claimant’s residual functional capacity, any error at

this preliminary stage is deemed harmless. Nejat v. Commissioner of Social

Security, 359 Fed.Appx. 574, 576-577 (6th Cir. 2009); Fisk v. Astrue, 253

Fed.Appx. 580, 583-584 (6th Cir. 2007). According to the Commissioner, the

ALJ had a sufficient basis for his residual functional capacity assessment and thus,

any step two error is harmless.

As to the alleged error at step three, the Commissioner contends that

plaintiff fails to present a prima facie case as to how she might possibly meet or

equal any relevant listed impairment (or even what listing she might meet or

equal). Yet, in order to show reversible error on such issue, she had to point to

specific evidence that demonstrates she reasonably could meet or equal every

requirement of some specific listing. Smith-Johnson v. Commissioner of Social

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Security, 579 Fed.Appx. 426, 432-436 (6th Cir. 2014). The Commissioner asserts

that no such showing has been made. 

Moreover, the Commissioner maintains that the ALJ’s RFC determination is

supported by substantial evidence. The ALJ found that plaintiff could physically

perform simple, sit-stand, light work which involved only limited use of her

hands, relying primarily on the opinion of Dr. Khalid, a state agency physician

who reviewed plaintiff’s treatment records. (Tr. 17, 59-62). Dr. Khalid concluded

that plaintiff should be able to do the basic activities required by light work. (Tr.

61). And, the Commissioner also points out that no treating or examining doctor

ever placed greater ongoing physical limitations on plaintiff. Thus, the ALJ could

properly rely on such opinion insofar as it was consistent with the totality of the

medical evidence in the record. Ealy v. Commissioner of Social Security, 594 F.3d

504, 514-515 (6th Cir. 2010). As to plaintiff’s mental work limitations, the

Commissioner maintains that the ALJ’s finding that she could do simple, two to

three step jobs (Tr. 14, 16-17) was consistent with the treatment reports in the

record, which showed that any functional limitations she had were at most

moderate (typical GAF scores of 53), and which did not document any significant

problems with memory, concentration or attention, or with her ability to interact

with others. (Tr. 472, 475, 479, 480-481, 483-484, 490, 492, 492-495, 497-498,

513). The Commissioner also points out that plaintiff fails to give any reason that

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the ALJ was obliged to reject Dr. Khalid’s opinion and fails to point to any

contrary medical opinion that supports her claimed inability to do the sort of work

the ALJ found her able to do (or the jobs the vocational expert testified she should

be able to do). And, while plaintiff challenges the ALJ’s statement that her

musculoskeletal impairments were not severe, she fails to note that the medical

opinion he relied on treated this problem as severe and considered it when

concluding she could do light work in general. (Tr. 59-62). According to the

Commissioner, plaintiff fails to explain how, given the ALJ’s reliance on such

expert medical opinion, the ALJ’s own classification of what was severe and not

severe affected his ultimate finding as to her capacity for work activities.

As to plaintiff’s credibility, the Commissioner submits that the ALJ here

had a sufficient basis for discounting her testimony as to the severity of her

symptoms. In assessing her claims of disabling symptoms, the Commissioner

maintains that the ALJ evaluated the credibility of those claims based on a detailed

consideration of relevant evidence in the record. (Tr. 17-21). When evaluating

the issue of credibility of plaintiff’s claims of disabling symptoms, the ALJ took

into account the contemporaneous medical evidence, the lack of adequate medical

evidence supporting her most extreme claims, the one uncontradicted medical

assessment in the record, and inconsistencies between her activities and her

allegedly disabling symptoms. (Tr. 15-17). The Commissioner submits that the

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factors considered by the ALJ in assessing (and rejecting) the credibility of

plaintiff’s claims of disabling pain were generally appropriate and sufficient. 

Jones v. Commissioner of Social Security, 336 F.3d at 476; 20 C.F.R. §

404.1529(a).

While plaintiff contends that her activities, such as driving and using the

computer, do not prove that she can work on a full-time basis, the Commissioner

says that the ALJ did not base his finding that she could work on a sustained basis,

solely on her activities. Rather this was only one factor he took into account. 

Indeed, the Commissioner points out that the ALJ could properly consider

plaintiff’s daily activities in determining the credibility of her complaints of pain.

See Brooks v. Social Security Administration, 430 Fed.Appx. 468, 482-483 (6th

Cir. 2011); Cruse v. Commissioner of Social Security, 502 F.3d 532, 542 (6th Cir.

2007). Thus, the Commissioner contends that there is no basis for overturning the

findings of the ALJ.

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

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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

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

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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.

 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

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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.

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).

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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). 

“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

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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

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

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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. 

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 Conclusions

1. Step Two

Plaintiff argues that the ALJ failed to properly evaluate all of her

impairments. At step two of the sequential evaluation here, the ALJ determined

that plaintiff had the following severe impairments: carpal tunnel syndrome and

DeQuervain’s tenosynovitis. Here, plaintiff appears to be advancing an argument

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that the ALJ erred in not identifying her mental impairments, headaches,

muskuloskeletal impairments, and chronic pain as “severe” at step two. 

At step two of the sequential evaluation process, the ALJ must consider

whether a claimant has a severe impairment and whether the impairment(s) meet

the twelve month durational requirement in 20 C.F.R. § 404.1509. See 20 C.F.R.

§§ 404.1520(a)(4), 416.920(a)(4); see also Simpson v. Comm’r of Soc. Sec., 344

Fed. Appx. 181, 188 (6th Cir. 2009) (“At step two, if a claimant does not have a

severe medically determinable physical or mental impairment ... that meets the

durational requirement in § 404.1509 ..., or a combination of impairments that is

severe and meets the durational requirement, then [she] is not disabled.”). “To

surmount the step two hurdle, the applicant bears the ultimate burden of

establishing that the administrative record contains objective medical evidence

suggesting that the applicant was “disabled” as defined by the Act....” Despins v.

Comm’r of Soc. Sec., 257 Fed. Appx. 923, 929 (6th Cir. 2007). A “severe”

impairment is defined as “any impairment or combination of impairments which

significantly limits your physical or mental ability to do basic work activities.” 20

C.F.R. §§ 404.1520(c), 416.920(c). Basic work activities are defined in the

regulations as “the abilities and aptitudes necessary to do most jobs.” 20 C.F.R.

§§ 404.1521(b), 416.921(b). Examples include: (1) physical functions such as

walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or

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handling; (2) capacities for seeing, hearing, and speaking; (3) understanding,

carrying out, and remembering simple instructions; (4) use of judgment; (5)

responding appropriately to supervision, co-workers, and usual work situations;

and (6) dealing with changes in routine work settings. See id.

It is well established in Sixth Circuit precedent that failure to find an

impairment severe at step two of the sequential analysis is not reversible error if

the ALJ found another impairment severe and therefore continued with the

five-step evaluation. See e.g., Fisk v. Astrue, 253 Fed. Appx. 580, 584 (6th Cir.

2007); Anthony v. Astrue, 266 Fed. Appx. 451, 457 (6th Cir. 2008). The purpose

of step two is “to screen out totally groundless claims.” Nejat v. Comm’r of Soc.

Sec., 359 Fed. Appx. 574, 576 (6th Cir. 2009). If the ALJ continues with the

remaining steps, any error at step two is harmless. Because the ALJ here found

the existence of severe impairments, and thus continued to the remaining steps of

the sequential evaluation, any error at step two in failing to find plaintiff’s other

impairments were severe is harmless.

2. Credibility/Physical RFC

Plaintiff also claims that the ALJ’s credibility analysis is flawed and is not

based on a proper characterization of record evidence. However, credibility

determinations concerning a claimant’s subjective complaints are peculiarly within

the province of the ALJ. See Gooch v. Sec’y of Health & Human Servs., 833 F.2d

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589, 592 (6th Cir. 1987). “It [i]s for the [Commissioner] and his examiner, as the

fact finders, to pass upon the credibility of the witnesses and weigh and evaluate

their testimony.” Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 536 (6th Cir.

2001) (quoting Myers v. Richardson, 471 F.2d 1265, 1267 (6th Cir. 1972)). As

the Sixth Circuit has held, determinations of credibility related to subjective

complaints of pain rest with the ALJ because “the ALJ’s opportunity to observe

the demeanor of the claimant ‘is invaluable, and should not be discarded lightly.’” 

Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 538 (6th Cir. 1981)

(citation omitted). “Upon review, [the court must] accord to the ALJ’s

determinations of credibility great weight and deference particularly since the ALJ

has the opportunity, which [the court] d[oes] not, of observing a witness’s

demeanor while testifying.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th

Cir. 2003). Thus, an ALJ’s credibility determination will not be disturbed “absent

compelling reason.” Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001). The ALJ

is not required to accept the testimony of a claimant if it conflicts with medical

reports, the claimant’s prior statements, the claimant’s daily activities, and other

evidence in the record. See Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531

(6th Cir. 1997). Rather, when a complaint of pain or other symptoms is in issue,

after the ALJ finds a medical condition that could reasonably be expected to

produce the claimant’s alleged symptoms, he must consider “the entire case

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record, including the objective medical evidence, statements and other information

provided by treating or examining physicians . . . and any other relevant evidence

in the case record” to determine if the claimant’s claims regarding the level of his

pain are credible. SSR 96-7p, 1996 WL 374186, at *1; see also 20 C.F.R.

§ 416.929. Consistency between the plaintiff’s subjective complaints and the

record evidence ‘tends to support the credibility of the [plaintiff], while

inconsistency, although not necessarily defeating, should have the opposite

effect.” Kalmbach v. Comm’r of Soc. Sec., 409 Fed. Appx. 852, 863 (6th Cir.

2011). 

The undersigned agrees with the Commissioner that the ALJ’s decision

regarding plaintiff’s credibility, the impact of the credible limitations caused by

pain, and the ultimate RFC findings are supported by substantial evidence. The

medical evidence does not support the extensive limitations claimed by plaintiff.

The spinal MRI performed on April 12, 2012 showed a “tiny left paracentral disc

protrusion” and a “mild disc bulge.” (Dkt. 12-7, Pg ID 253). The head CT

performed on March 6, 2012 revealed a “normal study.” (Dkt. 12-7, Pg ID 254).

The brain MRI performed on April 9, 2013 was also within normal limits. (Dkt.

12-9, Pg ID 589). The shoulder x-ray from March 6, 2012 showed a “negative

study.” (Dkt. 12-7, Pg ID 255). The June 2012 shoulder MRI found possible

bursitis and minimal degenerative changes in the AC joint. (Dkt. 12-9, Pg ID

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583). In April 2011, plaintiff had an abdominal ultrasound, which noted no “gross

lesion detected.” (Dkt. 12-7, Pg ID 256). The August 2011 chest x-ray showed

“very mild COPD, but with no acute pulmonary disease seen and no interval

change.” (Dkt. 12-7, Pg ID 257). Plaintiff’s April 2012 head and neck CT

angiography revealed an “unremarkable extracranial carotid CTA” and “no

evidence of stenosis.” (Dkt. 12-7, Pg ID 265, 266). The elbow x-ray taken on

June 16, 2012 was negative. (Dkt. 12-7, Pg ID 446). On July 28, 2012, plaintiff

had an “unremarkable” MRI of her right humerus. (Dkt. 12-9, Pg ID 582). In

December 2012, plaintiff had an abdominal/pelvis CT performed, which appeared

entirely normal, except that degenerative changes of the spine were noted. (Dkt.

12-7, Pg ID 469-470). These objective test results, along with the examinations

performed by plaintiff’s treating physicians revealed minor symptoms and little

evidence of significant impairment. (Dkt. 12-2, Pg ID 54). The ALJ also properly

pointed out that plaintiff was able to drive 10 hours per week, read, do gardening,

and check her email. These factors support the ALJ’s credibility determination.

Additionally, plaintiff only received conservative treatment during the

period at issue, which suggests that her limitations were not as disabling as she

claimed. Plaintiff used wrist-splints, had pain injections, and underwent some

physical therapy during the relevant period and that treatment does not undermine

the ALJ’s cited inconsistencies. See Villarreal v. Sec’y of Health & Human Servs.,

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818 F.2d 461, 463 (6th Cir. 1987) (finding it reasonable for fact finder to rely on

plaintiff’s “conservative treatment” in assessing credibility); SSR 96-7p, at *7

(“the individual’s statements may be less credible if the level or frequency of

treatment is inconsistent with the level of complaints.”). The undersigned agrees

with the Commissioner that substantial evidence supports the ALJ’s credibility

analysis, even if there is evidence to support another conclusion. 

The undersigned also concludes that, to the extent necessary, the ALJ also

discussed the regulatory factors under 20 C.F.R. § 404.1529(c) and 416.929(c). 

Specifically, the ALJ noted plaintiff’s alleged daily activities, symptoms and

limitations, medications, and treatment history along with the objective clinical

findings, including a multitude of x-rays, MRIs and CTs. Thus, the undersigned

finds no error in this regard.

3. Mental Impairment

Plaintiff did not indicate in her application that she suffered from any

mental impairments. As she testified at the hearing, she began treating for

depression and anxiety in 2013, well after the date of her application. Notably, Dr.

Khalid’s review of the medical records, dated July 24, 2012, occurred before

plaintiff began treating for any mental impairments. As he noted, there was no

psychiatric treatment or medications in the record at the time of his review. (Dkt.

12-3, Pg ID 98). At the time of the hearing, however, it was clear that plaintiff

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claimed to have a mental impairment and had submitted medical records in

support of that impairment before the hearing. 

Under 20 C.F.R. § 404.1520a, which governs the evaluation of mental

impairment, an ALJ is no longer required to complete the Psychiatric Review

Technique Form (PRTF), but must include “pertinent findings and conclusions

based on the technique” in the decision. See 20 C.F.R. § 416.920a(e). The ALJ

undertook no such assessment whatsoever in his opinion. This is an error which

must be remedied on remand. See e.g., Oliver v. Comm’r of Soc. Sec., 2015 WL

4661902, at *7 (N.D. Ohio Aug. 5, 2015) (Where the ALJ used the special

technique and rated the claimant’s functioning in the four broad functional areas,

the ALJ’s finding that the claimant’s mental impairments were non-severe

complied with the required application of the special technique.); see also SSR

968p, 1996 WL 374184, at *4 (July 2, 1996) (“The adjudicator must remember

that the limitations identified in the ‘paragraph B’ and ‘paragraph C’ criteria are

not an RFC assessment but are used to rate the severity of mental impairment(s) at

steps 2 and 3 of the sequential evaluation process.”). 

Unlike other cases where such an error has been found harmless, there is no

opinion in this record assessing the severity of plaintiff’s mental limitations and

the resulting functional limitations. See e.g., Rabbers v. Comm’r Soc. Sec. Admin.,

582 F.3d 647, 657 (6th Cir. 2009). In Rabbers, the Sixth Circuit found the failure

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to use the special technique at step two was harmless because the ALJ ultimately

concluded that plaintiff had a severe mental impairment and proceeded to step

three. Here, the ALJ did not so conclude. The court also concluded that even if

the ALJ had made specific findings regarding the B criteria, the same conclusion

would have been reached at step three. However, in Rabbers, the court’s analysis

of the B Criteria and ultimate determination that the error was harmless was

primarily based on the opinions of several physicians who had evaluated the

plaintiff’s mental impairments under the special technique. Id. at 658-660. There

is no such evidence in this record. Thus, the Court finds Rabbers and similar

cases to be distinguishable and inapplicable. See also, Taylor v. Comm’r of Soc.

Sec., 2013 WL 5348818, at *18 (E.D. Mich. Sept. 24, 2013) (Rabbers cautioned

that a court should only find a failure to examine the B criteria harmless where

“concrete factual and medical evidence” is “apparent in the record” and shows that

even if the ALJ had made the required findings “the ALJ would have found the

claimant not disabled.”) (Emphasis supplied in Taylor). Just as in Taylor, this

record “contain[s] conflicting or inconclusive evidence relating to the B criteria,”

such that the ALJ, rather than this court, should be the first to competently

explain” how the record, taken as a whole, does (or does not) support” plaintiff’s

mental impairments and resulting limitations. Id. at *18, quoting Rabbers, 582

F.3d at 657. 

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Indeed, in this case, there is no consulting physician opinion as to plaintiff’s

mental impairments and no PRTF in the record. Simply put, there is no treating

physician or any other consulting or examining physician who offered any opinion

regarding plaintiff’s functional limitations as to her mental impairment. Thus, we

are left with the circumstance of the ALJ interpreting raw medical data without the

benefit of an expert medical opinion. 

Importantly, in weighing the medical evidence, “‘ALJs must not succumb to

the temptation to play doctor and make their own independent medical findings.’”

Simpson v. Comm’r of Soc. Sec., 344 Fed. Appx. 181, 194 (6th Cir. 2009), quoting

Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996). Accordingly, “an ALJ may not

substitute his [or her] own medical judgment for that of the treating physician

where the opinion of the treating physician is supported by the medical evidence.”

Id. (internal quotations omitted); see also Bledsoe v. Comm’r of Social Sec., 2011

WL 549861, at *7 (S.D. Ohio Feb. 8, 2011) (“An ALJ is not permitted to

substitute her own medical judgment for that of a treating physician and may not

make her own independent medical findings.”); Mason v. Comm’r of Soc. Sec.,

2008 WL 1733181, at *13 (S.D. Ohio Apr. 14, 2008) (“The ALJ must not

substitute his own judgment for a doctor’s conclusion without relying on other

medical evidence or authority in the record.”). In other words, “[w]hile an ALJ is

free to resolve issues of credibility as to lay testimony, or to choose between

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properly submitted medical opinions, the ALJ cannot substitute his [or her] own

lay ‘medical’ opinion for that of a treating or examining doctor.” Beck v. Comm’r

of Soc. Sec., 2011 WL 3584468, at *14 (S.D. Ohio June 9, 2011), adopted by 2011

WL 3566009 (S.D. Ohio Aug. 12, 2011).

The undersigned recognizes that the final responsibility for deciding the

RFC “is reserved to the Commissioner.” 20 C.F.R. § 404.1527(d). Nevertheless,

courts have stressed the importance of medical opinions to support a claimant’s

RFC, and cautioned ALJs against relying on their own expertise in drawing RFC

conclusions from raw medical data. See Isaacs v. Astrue, 2009 WL 3672060, at

*10 (S.D. Ohio 2009) (“The residual functional capacity opinions of treating

physicians, consultative physicians, and medical experts who testify at hearings

are crucial to determining a claimant’s RFC because ‘[i]n making the residual

functional capacity finding, the ALJ may not interpret raw medical data in

functional terms.’”), quoting Deskin v. Comm'r Soc. Sec., 605 F. Supp.2d 908, 912

(N.D. Ohio 2008); see also Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (“As

a lay person, however, the ALJ was simply not qualified to interpret raw medical

data in functional terms and no medical opinion supported the [RFC]

determination.”); Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985) (“By

independently reviewing and interpreting the laboratory reports, the ALJ

impermissibly substituted his own judgment for that of a physician; an ALJ is not

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free to set his own expertise against that of a physician who presents competent

evidence.”). Thus, in the view of the undersigned, this matter must be remanded

so that the ALJ can obtain the opinion of a medical advisor to assess the severity

of the plaintiff’s mental impairments and any resulting functional limitations, as

well as to conduct the assessment required by 20 C.F.R. § 416.920a(e).

4. Treating Physician

Plaintiff has not identified any medical opinions, treating or otherwise, that

the ALJ failed to appropriately consider. Thus, the undersigned considers this

argument waived. See McPherson v. Kelsey, 125 F.3d at 989, 995-96 (6th Cir.

1997) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some

effort at developed argumentation, are deemed waived. it is not sufficient for a

party to mention a possible argument in the most skeletal way, leaving the court

to . . . put flesh on its bones.”). 

IV. RECOMMENDATION

For the reasons set forth above, the undersigned RECOMMENDS that

plaintiff’s motion for summary judgment be GRANTED in part and DENIED in

part, that defendant’s motion for summary judgment be GRANTED in part and

DENIED in part, that the findings of the Commissioner be AFFIRMED in part

and REVERSED in part, and that this matter be REMANDED for further

proceedings as to plaintiff’s mental impairments.

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The parties to this action may object to and seek review of this Report and

Recommendation, but are required to file any objections within 14 days of service,

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule

72.1(d). Failure to file specific objections constitutes a waiver of any further right

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

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Date: March 2, 2016 s/Stephanie Dawkins Davis

Stephanie Dawkins Davis

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on March 2, 2016, I electronically filed the foregoing paper

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

notification to all counsel of record.

s/Tammy Hallwood

Tammy Hallwood

Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov

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