UNITED STATES DISTRICT COURT

EASTERN DISTICT OF MICHIGAN

SOUTHERN DIVISION

ANTHONY RHODES,

Plaintiff, Civil Action No.: 14-13716

 Honorable Avern Cohn

v. Magistrate Judge Elizabeth A. Stafford

 

CAROLYN W. COLVIN, 

Acting Commissioner of 

Social Security,

 

Defendant. 

__________________________________/

REPORT AND RECOMMENDATION

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT [R. 15, 18]

Plaintiff Anthony Rhodes appeals a final decision of Defendant 

Commissioner of Social Security (“Commissioner”) denying his applications 

for Disability Insurance Benefits (“DIB”) and Supplemental Security Income 

(“SSI”) under the Social Security Act (the “Act”). Both parties have filed

summary judgment motions, which were referred to this Court for a Report 

and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Although the 

ALJ’s decision could have been better crafted, the Court finds no error 

warranting remand. For these reasons, the Court RECOMMENDS that:

• the Commissioner’s motion [R. 18] be GRANTED; 

• Rhodes’s motion [R. 15] be DENIED; and,

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• the Commissioner’s decision be AFFIRMED, pursuant to sentence 

four of 42 U.S.C. § 405(g).

I. BACKGROUND

A. Claimant’s Background and Claimed Disabilities

At the time of application, Rhodes was 52 years old, with a seventh 

grade education, and had previously worked in maintenance, general labor 

and painting. He alleges disability due to neck and back pain stemming 

from an automobile accident, hand pain, and mental impairments. 

B. Procedural History

Rhodes filed applications for DIB and SSI, alleging disability as of 

August 8, 2011. [R. 12-5, Tr. 153-158]. The claims were denied initially, 

and Rhodes filed a timely request for an administrative hearing, held on 

May 6, 2013, at which both he and a vocational expert (“VE”) testified. [R. 

12-2, Tr. 31-68; R. 12-4, Tr. 95-103]. In a May 30, 2013 written decision, 

the ALJ found Rhodes not disabled. [R. 12-2, Tr. 12-30]. The Appeals 

Council denied review, making the ALJ’s decision the final decision of the 

Commissioner for purposes of this review. [Id., Tr. 1-5]. Rhodes timely

filed for judicial review. [R. 1]. 

C. The ALJ’s Application of the Disability Framework

DIB and SSI are available for those who have a “disability.” See 

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Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). A “disability” is the 

“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).

The Commissioner determines whether an applicant is disabled by 

analyzing five sequential steps. First, if the applicant is “doing substantial 

gainful activity,” he or she will be found not disabled. 20 C.F.R. § 

404.1520(a)(4); 20 C.F.R. § 416.920(a)(4).

1

 Second, if the claimant has 

not had a severe impairment or a combination of such impairments2 for a 

continuous period of at least 12 months, no disability will be found. Id. 

Third, if the claimant’s severe impairments meet or equal the criteria of an 

impairment set forth in the Commissioner’s Listing of Impairments, the 

claimant will be found disabled. Id. If the fourth step is reached, the 

Commissioner considers its assessment of the claimant’s residual 

functional capacity (“RFC”), and will find the claimant not disabled if he or 

she can still do past relevant work. Id. At the final step, the Commissioner 

 1 Sections 1520(a)(4) and 920(a)(4), which pertain to DIB and SSI 

respectively, list the same five-step analysis.

2 A severe impairment is one that “significantly limits [the claimant’s] 

physical or mental ability to do basic work activities.” §§ 1520(c); 920(c).

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reviews the claimant’s RFC, age, education and work experiences, and 

determines whether the claimant could adjust to other work. Id. The 

claimant bears the burden of proof throughout the first four steps, but the 

burden shifts to the Commissioner if the fifth step is reached. Preslar v. 

Sec’y of Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994). 

Applying this framework, the ALJ concluded that Rhodes was not 

disabled. At step one, the ALJ determined that Rhodes had not engaged in 

substantial gainful activity since his alleged onset date. [R. 12-2, Tr. 17]. 

At step two, he identified severe impairments of low back disorder, 

schizoaffective disorder, major depressive disorder, personality disorder 

and substance abuse disorder. [Id., Tr. 18]. He found that other 

impairments, including Rhodes’s cervical disc disorder, mild carpal tunnel 

syndrome, headaches and urinary disorder were not severe. [Id.]. 

At step three, the ALJ concluded that none of Rhodes’s impairments, 

either alone or in combination, met or medically equaled a listed 

impairment. [Id., Tr. 19-20]. In evaluating Rhodes’s mental impairments, 

the ALJ found that Rhodes suffered from no more than moderate 

restrictions in activities of daily living, moderate difficulties in social 

functioning and moderate difficulties in maintaining concentration, 

persistence and pace, with no episodes of decompensation. [Id.]. 

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Next, the ALJ assessed Rhodes’s residual functional capacity 

(“RFC”) finding him capable of light work that permitted alternating between 

sitting and standing up to three times an hour, did not require climbing of 

ladders, ropes or scaffolds, and only occasional climbing of ramps and 

stairs. [Id., Tr. 20]. Rhodes also could only occasionally stoop, kneel, or 

crawl, and needed to avoid all hazards like dangerous machinery and 

unprotected heights. [Id.]. He was further limited to simple, routine tasks 

with no more than brief, superficial interaction with the public and coworkers and no more than occasional supervision. [Id.]. 

At step four, the ALJ concluded that, based on the foregoing RFC, 

Rhodes could not return to his past relevant work. [Id., Tr. 25]. However, 

at step five, with the assistance of VE testimony, the ALJ determined that 

there were a significant number of other jobs in the national economy that a 

hypothetical claimant matching Rhodes’s profile could perform, and thus he 

was not disabled. [Id., Tr. 25-26]. These jobs included electrical 

accessories assembler (1,200 jobs in the region), light fixture inspector 

(1,500 jobs) and hand packer (1,200 jobs). [Id., Tr. 26]. 

II. STANDARD OF REVIEW

Pursuant to § 405(g), this Court’s review is limited to determining 

whether the Commissioner’s decision is supported by substantial evidence 

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and was made in conformity with proper legal standards. Gentry v. Comm’r 

of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014). 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 v. Comm’r of Soc. Sec., 486 F.3d 234, 241 

(6th Cir. 2007) (internal quotation marks and citation omitted). Only the 

evidence in the record below may be considered when determining 

whether the ALJ’s decision is supported by substantial evidence. Bass v. 

McMahon, 499 F.3d 506, 513 (6th Cir. 2007). “If the [Commissioner’s]

decision is supported by substantial evidence, it must be affirmed even if 

the reviewing court would decide the matter differently, and even if 

substantial evidence also supports the opposite conclusion.” Cutlip v. 

Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (internal 

citations omitted). 

With these standards in mind, this Court finds that the ALJ’s 

determination that Rhodes is not disabled is supported by substantial 

evidence.

III. ANALYSIS

Rhodes’s brief alleges numerous errors in the ALJ’s decision. Some 

alleged errors seriously misrepresent the ALJ’s decision (i.e. claiming that 

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the ALJ offered “absolutely no rationale nor discussion of Mr. Rhodes’ 

medical problems” and that the RFC included “no non-exertional limitations 

whatsoever . . . that would account for his severe [mental] impairment 

finding.”) [R. 15, PgID 484]. Other arguments are barely supported by 

reference to record evidence; Rhodes cites to only one page of the medical 

record while the remaining references are to his own testimony or to the 

ALJ’s decision. [Id., PgID 484-89]. Such practice could permit the Court to 

find Rhodes has waived most, if not all, of his arguments. “[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.” McPherson v. Kelsey, 125 F.3d 989, 995-96 

(6th Cir. 1997) (citation and internal quotation marks omitted). However, in 

light of the Court’s independent obligation to ensure the ALJ’s decision is 

supported by substantial evidence, the Court broadly addresses Rhodes’s

allegations. 

A. ALJ’s Evaluation of the Record Evidence

Rhodes takes issue with the ALJ’s evaluation of the record evidence, 

arguing that the ALJ cherry-picked the evidence, failed to provide support 

for the weight given to various opinions, and failed to articulate the basis for 

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his RFC. 

The Sixth Circuit has cautioned that an allegation of “cherry-picking” 

is “seldom successful because crediting it would require a court to re-weigh 

record evidence.” DeLong v. Comm’r of Soc. Sec. Admin., 748 F.3d 723, 

726 (6th Cir. 2014). That caution is especially pertinent here because 

Rhodes fails to cite any piece of objective medical evidence that was not 

considered by the ALJ. The Court rejects Rhodes’s invitation to reweigh all 

of the evidence on his behalf. Nonetheless, the Court has reviewed the 

record and finds that, while the ALJ omitted from his discussion reference 

to some records, none warrant reversal on the facts of this case. 

The most pertinent omission pertained to Rhodes’s diagnosis of 

cervical disc herniation. A 2011 MRI showed cervical multilevel disc 

desiccation, superimposed disc herniation, and multilevel mild bilateral 

inferior nerve root recess encroachment.

3

 [R. 12-7, Tr. 287-88]. Treatment 

notes from February 2012 appear to recommend that Rhodes undergo

“ACDF,” anterior cervical discectomy and fusion. [Id., Tr. 273-74]. A 

check-box form completed around this time, apparently by a physician’s 

assistant (“PA”) in the same practice, indicated that Rhodes was disabled 

from work for two months based on cervical radiculopathy and prescribed 

 3 Rhodes does not even mention this opinion in his brief, permitting this 

Court to find any error waived. 

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housekeeping and transportation replacement services. [Id., Tr. 269]. The 

Court acknowledges that the ALJ probably should have discussed these 

records, particularly the PA’s disability note. SSR-06-03P states that

opinions from treating sources, “who are not technically deemed 

‘acceptable medical sources’ under our rules, are important and should be 

evaluated on key issues such as impairment severity and functional effects, 

along with the other relevant evidence in the file.” 2006 SSR LEXIS 5, *8, 

2006 WL 2329939, at *3 (Aug. 9, 2006). 

However, any error on the part of the ALJ in failing to address the 

PA’s opinion was harmless as the treatment notes accompanying the PA’s 

opinion offer no objective findings to support that Rhodes required 

additional limitations; they noted 5/5 muscle strength in the upper 

extremities and +2/4 reflexes bilaterally. [R. 12-7, Tr. 274]. Additionally, 

during the same month in which the PA described Rhodes as “disabled,” he 

underwent a consultative exam during which a physician found no 

symptoms associated with cervical disorder or radiculopathy, full cervical 

range of motion, full upper extremity muscle strength and grip strength, and 

no neurological or sensory deficits. [R. 12-7, Tr. 234-41]. Likewise, 

physical therapy notes from the beginning of February showed a full range 

of motion and strength of 4+/5. [Id., Tr. 294]. Finally, at the hearing (more 

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than one year after the ACDF was recommended), Rhodes did not testify 

that he ever underwent that surgery or even that he was having neck pain. 

[R. 12-2, Tr. 53 (explaining that his pain was located in his lower and upper 

back)]. Thus, any error on the part of the ALJ in failing to discuss these 

treatment notes is harmless. 

Rhodes argues that “there is absolutely no account” for the opinion of 

Dr. Terrance Mills, Ph.D., the consultative mental examiner, in the ALJ’s 

RFC. [R. 15, PgID 485]. Dr. Mills found that Rhodes was “able to 

understand, retain and follow simple directions,” although “at times he 

needed things repeated and explained,” and also “would appear to have 

difficulty maintaining standards of safety issues and work routines due to 

his current mental health issues.” [R. 12-7, Tr. 246]. Rhodes also claims 

that the RFC does not account for this opinion or for his diagnoses of 

schizoaffective, major depressive and personality disorders. These

representations of the ALJ’s RFC analysis are factually untrue.

The ALJ did acknowledge and discuss at length Rhodes’s diagnoses 

of mental impairments, including those from Dr. Mills, but concluded 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 mental restrictions.” [R. 12-2, Tr. 23]. The ALJ included 

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limitations within the RFC that addressed Rhodes’s mental impairments, 

including that he “must avoid all hazards like dangerous machinery and 

exposure to unprotected heights,” that he was “limited to simple, routine 

tasks,” and that he could have only limited interaction with the public, coworkers and supervision.4

 [Id. at Tr. 20]. Rhodes does not specify what 

additional limitations he believes should have been imposed. Thus, the 

Court finds no reversible error. 

B. ALJ’s Credibility Determination

The ALJ found Rhodes’s claim of total disability to be not entirely 

credible. Rhodes argues that, in making that finding, the ALJ failed to 

address his complaints of fatigue and pain, his need to lie down, “or severe 

medication side effects which include balance issues . . . .” [R. 15, PgID 

486]. Additionally, according to Rhodes, the ALJ improperly relied on his 

appearance and demeanor at the hearing, and based his credibility 

determination on feelings rather than conducting a proper analysis as 

required by the regulations. Credibility determinations of witnesses are 

within the province of the ALJ, and will not be overturned “absent 

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

 4 Notably, the DDS consultant reviewer who interpreted Dr. Mills’s opinion 

at the initial stage found that it only required a limitation to simple, unskilled 

work, which was part of the ALJ’s RFC. [R. 12-3, Tr. 72, 75-76].

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the same time, “such determinations must find support in the record.” 

Rogers, 486 F.3d at 241. Here, Rhodes has not proffered a compelling 

reason to overturn the ALJ’s credibility determination, and that 

determination finds support in the record.

Rhodes’s argument that the ALJ did not mention his specific 

complaints of physical and mental impairments is untrue. [See R. 12-2, Tr. 

21]. The Court notes that the ALJ did misstate some of Rhodes’s 

testimony when claiming that he alleged “no impairment in his abilities to 

lift, squat, bend, stand, reach, walk, sit, kneel, talk, hear, stair climb, follow 

instructions, and us[e] his hands.” [Id., Tr. 24]. In truth, Rhodes testified 

that he could lift only 10 to 15 pounds for a short distance, could only stand 

or sit for a half-hour at a time, and that he could not reach above his head 

or behind his back. [Id. at Tr. 56-57]. However, no treating physician 

opined that Rhodes suffered from those functional limitations, and a 

consulting doctor found him capable of lifting, pushing and pulling up to 40 

pounds and having no limitation with manipulation. [R. 12-7, Tr. 236]. The 

ALJ was required to factor in Rhodes’s subjective complaints only to the 

“extent to which [his] symptoms can reasonably be accepted as consistent 

with the objective medical evidence and other evidence.” 20 C.F.R. § 

404.1529(a). For that reason, the lack of physical restrictions from a 

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physician is considered substantial evidence supporting the ALJ’s 

determination that Rhodes is not as limited as he claims. Hamper v. 

Comm'r of Soc. Sec., 714 F. Supp. 2d 693, 705 (E.D. Mich. 2010).

Further, contrary to Rhodes’s argument, the ALJ did conduct a 

credibility analysis. He stated that Rhodes was less than fully credible 

because, despite his allegations of isolative behavior, disabling depression 

and physical pain, Rhodes admitted to being able to perform some 

household chores (cleaning and laundry), go shopping, use public 

transportation, and watch television. [R. 12-2, Tr. 19, 21, 23-24]. The ALJ 

also noted that Rhodes got along well with his brother with whom he lived, 

as well as the examiners and interviewers of record, and had never been 

laid off due to problems getting along with others. [Id.]. Additionally, the 

ALJ considered that Rhodes exhibited no pain behavior at the hearing, 

although he gave this factor only “slight weight” in his overall credibility 

analysis. [Id., Tr. 24]. 

The ALJ was somewhat misleading in characterizing some of 

Rhodes’s alleged admissions of his activities. While the ALJ described 

Rhodes as admitting to doing household chores and shopping, Rhodes 

testified that his brother usually does his laundry, that he does not cook 

(although he heats up food in the microwave), and that he goes grocery 

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shopping only under his brother’s supervision about twice per month. [R. 

12-2, Tr. 44-46].5

 However, the harmless error analysis applies to 

credibility determinations. Ulman v. Comm'r of Soc. Sec., 693 F.3d 709, 

714 (6th Cir. 2012). The ALJ’s mischaracterization of some of Rhodes’s 

testimony is harmless because the lack of medical evidence that he is as 

limited as he claims constitutes substantial evidence. Hamper, 714 F. 

Supp. at 705. 

Moreover, when describing the evidence of Rhodes’s mental 

impairment, the ALJ accurately summarized the reports of clinicians that 

Rhodes had an unremarkable general appearance, posture, motor status, 

speech, affect, perception, cognition, and good insight and judgment; that 

he was oriented and did not present as impaired; that he was able to 

maintain his own appointments, monitor his own medication, advocate for 

and transport himself; and showed fair hygiene and good motility, grooming 

and overall appearance. [R. 12-2, Tr. 22-23; R. 12-7, Tr. 227, 230; R. 12-8, 

Tr. 370, 372, 377, 383, 415-26, 430-31]. These reports constitute

substantial evidence in support of the ALJ’s credibility determination.

The Court also rejects Rhodes’s complaint regarding the ALJ’s 

 5 On the other hand, Rhodes’s testimony that he does not watch much 

television because he has to lie down contradicts his earlier report of daily 

activities, on which he reported watching movies and television “everyday 

most of the day.” [R. 12-2 at Tr. 49; R. 12-6, Tr. 194].

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reliance on his appearance and demeanor at the hearing. Although it 

would have been error if that were the sole reason for rejecting Rhodes’s 

credibility, the ALJ did not err in citing it as one factor to which he gave 

slight weight. See Johnson v. Comm’r of Soc. Sec., 210 F.3d 372, *4 (6th 

Cir. Mar. 22, 2000) (unpublished) (finding no error where ALJ’s reference to 

hearing demeanor not only factor in credibility assessment). 

Finally, the record does not support Rhodes’s argument that the ALJ 

should have given weight to his statements that he needed to lie down 

frequently, that his hands swell, and that he has a loss of balance due to 

medication side effects. Rhodes testified that he lies down “most of the 

time,” but offered no reason for doing so, let alone describe the amount of 

time he must lie down or in what intervals. [R. 12-2, Tr. 49]. While he 

testified to stumbling and catching himself four to five times a week, he did 

not testify, and the record does not otherwise reflect, that such incidents 

were the result of medication. [Id., Tr. 53-54]. Furthermore, five months of 

physical therapy notes consistently show that Rhodes maintained good 

balance. [R. 12-7, Tr. 294-335]. With respect to Rhodes’s testimony that 

his hands would occasionally swell and were painful, he did not state that 

he suffered any limitations as a result, and there is no record evidence that 

he had any. To the contrary, the record reflects that Rhodes maintained 

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full grip strength. [R. 12-2, Tr. 57; R. 12-7, Tr. 240]. The Court finds no 

error in the ALJ’s omission of these subjective statements. 

C. ALJ’s Non-Exertional Limitations

Rhodes argues that the ALJ erred in failing to propose a hypothetical 

question to the VE that specifically accounted for the interval of time 

Rhodes needed for alternating between sitting and standing. However, the 

ALJ did specifically pose a hypothetical question about a claimant who 

needed to alternate between sitting and standing up to three times an hour, 

and the VE testified that there were jobs for such a claimant. [R. 12-2, Tr. 

64-65]. Rhodes does not claim that this restriction is not sufficient to 

accommodate his limitations and he testified that he was able to sit and 

stand each for about a half an hour at a time. [Id., Tr. 56]. Rhodes’s 

argument therefore lacks merit. 

IV. CONCLUSION

Although the ALJ’s decision could have been better-crafted, the Court 

finds that no more than harmless error under the deferential consideration 

afforded the ALJ’s decision. Furthermore, an independent review of the 

record finds that the ALJ’s decision is supported by substantial evidence. 

For these reasons, the Court RECOMMENDS that Rhodes’s Motion for 

Summary Judgment [R. 15] be DENIED, the Commissioner’s Motion [R. 

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18] be GRANTED, and this case be AFFIRMED.

s/Elizabeth A. Stafford

ELIZABETH A. STAFFORD

United States Magistrate Judge

Dated: October 7, 2015

NOTICE TO THE PARTIES REGARDING OBJECTIONS

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

Report and Recommendation, but must act within fourteen days of service 

of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 

72(b)(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. 

Secretary of HHS, 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 party 

might have to this Report and Recommendation. Willis v. Secretary of 

HHS, 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). A copy of any objection 

must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2).

Each objection must be labeled as “Objection #1,” “Objection #2,” 

etc., and must specify precisely the provision of this Report and 

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Recommendation to which it pertains. Not later than fourteen days after 

service of objections, the non-objecting party must file a response to 

the objections, specifically addressing each issue raised in the objections in 

the same order and labeled as “Response to Objection #1,” “Response to 

Objection #2,” etc. The response must be concise and proportionate in 

length and complexity to the objections, but there is otherwise no page 

limitation. If the Court determines that any objections are without merit, it 

may rule without awaiting the response.

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s ECF 

System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on October 7, 2015.

s/Marlena Williams

MARLENA WILLIAMS

Case Manager

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