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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MICHELLE M. POLHEMUS, 

Plaintiff, 

v. 

CAROLYN W. COLVIN, 

Acting Commissioner of 

Social Security, 

Defendant. 

Case No. 14-14442 

SENIOR U.S. DISTRICT JUDGE

ARTHUR J. TARNOW

U.S. MAGISTRATE JUDGE

ELIZABETH A. STAFFORD

 / 

ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [17];

DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [19]; AND REMANDING 

CASE

 Plaintiff seeks review of an Administrative Law Judge (ALJ) decision 

denying her application for disability benefits. Plaintiff filed a Motion for 

Summary Judgment [17] on April 15, 2015. Defendant filed a Motion for 

Summary Judgment [19] on May 20, 2015. Plaintiff filed a Response to 

Defendant’s Motion for Summary Judgment [21] on July 13, 2015. On December 

12, 2015, the Magistrate Judge issued a Report and Recommendation [22] 

recommending that the Court grant Defendant’s motion and deny Plaintiff’s. 

Plaintiff filed Objections to the Report and Recommendation [23] on January 4, 

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2016. Defendant filed a Response to Plaintiff’s Objections [24] on January 14, 

2016. 

 For the reasons stated below, the Court declines to adopt the R&R. 

Defendant’s Motion for Summary Judgment [21] is DENIED. Plaintiff’s Motion 

for Summary Judgment [17] is GRANTED IN PART. 

FACTUAL BACKGROUND

Plaintiff applied for Disability Insurance Benefits (“DIB”) and Social 

Security Benefits (“SSI”) on June 21, 2012, alleging an onset date of April 23, 

2009. The state disability determination service denied her application on July 24, 

2012, and she requested a hearing before an Administrative Law Judge (“ALJ”). 

ALJ Thomas C. Ciccolini held a hearing in Akron, Ohio on December 17, 2013. 

Plaintiff appeared by video. A vocational expert (“VE”) testified as well. ALJ 

Ciccolini issued a decision on December 24, 2013, finding Plaintiff not disabled.

This decision became final on September 19, 2014, when the Appeals Council 

denied Plaintiff’s request for review. Plaintiff timely filed for judicial review. 

At the time of the administrative hearing, Plaintiff was a 47-year-old high 

school graduate, who had worked full-time as a medium unskilled commercial 

cleaner until April 2009, and part-time, intermittently, from that point on. At the 

time of the hearing, she was working every other weekend as a cleaner in a nursing 

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home. For DIB purposes, her date of last issued is June 30, 2015. She has claimed 

disability due to diabetes, hypoglycaemia, thyroid, memory and vision problems, 

acid reflux, chronic cough, breathing problems, heart palpitations and anxiety. 

STANDARD OF REVIEW

 The Court reviews objections to a Magistrate Judge’s Report and 

Recommendation (R&R) on a dispositive motion de novo. See 28 U.S.C. 

§636(b)(1)(c). Defendant has argued that Plaintiff’s Objections do not specifically 

address errors in the R&R, and therefore this Court should reject Plaintiff’s 

Objections and affirm the Magistrates decision. [24]. While this would mean that 

the Court is not obligated to address Plaintiff’s Objections, the Court must 

nonetheless exercises de novo review over a Magistrate’s findings and 

recommendations on dispositive matters. See Massey v. City of Ferndale, 7 F.3d 

506, 510-511 (6th Cir.1993); Flournoy v. Marshall, 842 F.2d 875, 878-79 (6th Cir. 

1988). 

 Judicial review of a decision by an ALJ is limited to determining whether 

the factual findings are supported by substantial evidence and whether the ALJ 

employed the proper legal standards. Richardson v. Perales, 402 U.S. 389, 401 

(1971). The ALJ’s factual findings “are conclusive if supported by substantial 

evidence.” Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 243 (6th 

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Cir. 1987). “Substantial evidence is defined as 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). The substantial evidence standard “does not 

permit a selective reading of the record,” as the reviewing court’s assessment of 

the evidence supporting the ALJ’s findings “must take into account whatever in the 

record fairly detracts from its weight.” McLean v. Comm’r of Soc. Sec., 360 F. 

Supp. 2d 864, 869 (E.D. Mich. 2005) (quoting Garner v. Heckler, 745 F.2d 383, 

388 (6th Cir. 1984)). However, so long as the ALJ’s conclusion is supported by 

substantial evidence, a court must “defer to that finding even if there is substantial 

evidence in the record that would have supported an opposite conclusion.” 

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

Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986). 

ANALYSIS

The Plaintiff raises three objections to the Report and Recommendation. 

First, Plaintiff objects to the Magistrate’s finding that the ALJ did not “play 

doctor.” Second, Plaintiff objects to the Magistrate’s holding that substantial 

evidence supported the ALJ’s credibility determination. Third, Plaintiff argues that 

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the ALJ’s RFC determination is improper, because the underlying credibility 

determinations regarding Plaintiff’s limitations were unsupported. 

a. Plaintiff’s First Objection 

Plaintiff first objects to the Magistrate’s finding that the ALJ did not “play 

doctor” when he assigned little weight to the opinions of Drs. Bishop and Tareen. 

[23 at 582]. The Magistrate held that the ALJ’s reasons for discounting the 

doctors’ opinions were supported by substantial evidence. [22 at 572]. Plaintiff 

argues that the ALJ’s reasons were factually inaccurate, and that he improperly 

drew negative inferences from Plaintiff’s scarce mental health treatment. [23 at 

583]. 

An ALJ impermissibly plays doctor by substituting his or her own judgment 

for that of medical experts whose opinions are supported by medical evidence. 

Simpson v. Comm'r of Soc. Sec., 344 F. App'x 181, 194 (6th Cir. 2009). On the 

other hand, an ALJ is not bound to accept an opinion of a medical expert that is not 

supported by reliable reasoning or objectively determinable symptoms. Id.; 20 

C.F.R. § 404.1527(c)(3). An ALJ must also consider whether a medical opinion is 

consistent with the record as a whole. § 404.1527(c)(4); Irvin v. Soc. Sec. Admin., 

573 F. App'x 498, 501 (6th Cir. 2014). Furthermore, because they do not provide 

the detailed longitudinal picture provided by treating sources, “opinions from 

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nontreating and nonexamining sources are never assessed for ‘controlling 

weight.’” Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) 

(citing § 404.1527(c)). However, “they may not ignore these opinions and must 

explain the weight given to the opinions in their decisions.” Soc. Sec. Ruling 96-

6p, 1996 WL 374180, at *2 (1996). 

The ALJ ultimately determines whether an impairment is severe. Id. An 

impairment is not considered severe when it “does not significantly limit [one's] 

physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1521(a) 

and 416.921(a). Step two “has been described as ‘a de minimis hurdle’; that is, ‘an 

impairment can be considered not severe only if it is a slight abnormality that 

minimally affects work ability regardless of age, education, and experience. The 

goal of the test is to ‘screen out totally groundless claims.’” Simpson v. Comm'r of 

Soc. Sec., 344 F. App'x 181, 190 (6th Cir. 2009) (internal citations omitted). 

Findings of fact are not supported by substantial evidence when the ALJ does not 

accurately state the evidence used to support his finding. White v. Comm'r of Soc. 

Sec., 312 F. App'x 779, 788 (6th Cir. 2009) (“Because the ALJ does not accurately 

state the evidence used to support his finding, his total discounting of the mental 

impairment is not supported by substantial evidence.”); see also Simpson, 344 F. 

App'x at 192. 

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The medical opinions at issue are those of State psychological consultants 

Dr. Ruqiya Tareen and Dr. Betty Bishop. Dr. Bishop performed a psychological 

consultative examination on April 19, 2012. [17 at 513-14]. Dr. Bishop opined 

that, “[g]iven [Plaintiff’s] panic attacks, agoraphobia, and multiple medical issues, 

she is likely to have difficulty maintaining consistent employment.” Id. 

Dr. Ruqiya Tareen examined Dr. Bishop’s report, and issued a Disability 

Determination Explanation, dated July 24, 2012. [13-3 at 105-130]. Dr. Tareen 

assessed the Plaintiff’s anxiety-related disorder according to the Paragraph ‘B’ 

Criteria as follows: 

Restriction of Activities of Daily Living: Mild 

Difficulties in Maintaining Social Functioning: Moderate 

Difficulties in Maintaining Concentration, Persistence or Pace: 

Moderate 

Repeated Episodes of Decompensation, Each of Extended 

Duration: None. 

[13-3 at 109]. In support of these findings, Dr. Tareen explained that Plaintiff 

could carry out simple tasks, but struggled with “detailed, complex and sequential 

tasks.” [13-3 at 113-14]. Her social functioning was “moderately limited” by her 

anxiety and by her tendency to isolate herself. Id. Therefore, her “ability to 

complete a normal workday and workweek without interruptions from 

psychologically based symptoms and to perform at a consistent pace without an 

unreasonable number and length of rest periods” was “moderately limited.” Id. 

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The ALJ gave little weight to the opinions of the Drs. Tareen and Bishop for 

three reasons: 

[T]he claimant was only just prior to her hearing prescribed 

psychotropic medication, has not required or received inpatient 

or outpatient psychological care, and no longitudinal signs or 

symptoms of mental distress or dysfunction are documented in 

the record. 

[13-2 at 62]. The ALJ then reassessed Plaintiff’s mental impairments according to 

the ‘B’ Criteria and found, respectively, as follows: none, mild, mild, and none. Id. 

The ALJ offers some additional explanation for why he discounted Dr. Bishop’s 

opinion: 

As noted, however, the claimant remained independent in her 

daily activities, and able to shop; her treatment records disclose 

no significant psychological complaints or observed clinical 

signs or findings, and I have accorded this opinion little weight 

herein. 

[13-2 at 66]. 

When weighting medical opinions, the ALJ must consider factors such as 

the length of the treatment relationship and frequency of examination, whether the 

opinions are supported by and consistent with the record as a whole, the 

specialization of the source, and “other factors” in the record. 20 C.F.R. § 

404.1527(c). The ALJ appears to have found these opinions unsupported by or 

inconsistent with the medical evidence in the record. He also appears to have 

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considered “other factors,” such as Plaintiff’s scarce history of treatment for 

mental impairments. 

In response her lack of treatment, Plaintiff points out that she had, in fact, 

been prescribed medication to treat her anxiety once before, in March 2011, 

contradicting the ALJ’s claim that “she was only just prior to her hearing 

prescribed psychotropic medication.” [13-2 at 62]. Defendant argues that the ALJ 

was still correct to draw a negative inference from this, because there was no 

evidence in the medical records that Plaintiff ever filled the prior medication. 

[19 at 548-49]. Social Security Ruling 96-7p states that a claimant’s testimony 

“may be less credible . . . if the medical reports or records show that the individual 

is not following [her] treatment as prescribed and there are no good reasons for this 

failure.” Titles II & Xvi: Evaluation of Symptoms in Disability Claims: Assessing 

the Credibility of an Individual's Statements, SSR 96-7P (S.S.A. July 2, 1996). The 

logic behind the ruling is that claimants with severe symptoms are more likely to 

comply with treatment, since the severity of their symptoms may increase their 

motivation to seek the relief promised by their treatment plan. See id. (“Persistent 

attempts by the individual to obtain relief of pain or other symptoms ... may be a 

strong indication that the symptoms are a source of distress to the individual and 

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generally lend support to an individual’s allegations of intense and persistent 

symptoms.”). 

However, Social Security Ruling 96-7p also provides that an ALJ “must not 

draw any inferences about an individual’s symptoms and their functional effects 

from a failure to seek or pursue regular medical treatment without first considering 

any explanations that the individual may provide, or other information in the case 

record, that may explain infrequent or irregular medical visits or failure to seek 

medical treatment.” Id. (emphasis added). The ruling lists examples of sound 

explanations for noncompliance, recognizing, for instance, that, “[t]he individual 

may be unable to afford treatment and may not have access to free or low-cost 

medical services;” and, “[t]he individual's daily activities may be structured so as 

to minimize symptoms to a tolerable level or eliminate them entirely, avoiding 

physical or mental stressors that would exacerbate the symptoms.” Id. at *8. 

Though Ruling 96-7p itself is silent on the effect of mental illness on 

compliance, the Sixth Circuit has joined other federal courts in recognizing that for 

a claimant suffering from mental illness, noncompliance with treatment may be a 

symptom of her condition, rather than evidence that her condition is not disabling. 

See White v. Comm’r of Soc. Sec., 572 F.3d 272, 283 (6th Cir. 2009) (citing PateFires v. Astrue, 564 F.3d 935, 945 (8th Cir. 2009)). See also Blankenship v. 

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Bowen, 874 F.2d 1116, 1124 (6th Cir. 1989) (“Appellant may have failed to seek 

psychiatric treatment for his mental condition, but it is a questionable practice to 

chastise one with a mental impairment for the exercise of poor judgment in seeking 

rehabilitation.”). 

Defendant argues that it was proper for the ALJ to draw a negative inference 

from Plaintiff’s lack of treatment, because Plaintiff “has failed to set forth any 

evidence that her lack of mental health treatment was a symptom of mental 

illness.” Defendant cites Bryce v. Comm’r of Soc. Sec. No. CIV.A. 12-14618, 2014 

WL 1328275, at *10, adopted by No. CIV.A. 12-14618, 2014 WL 1328277 (E.D. 

Mich. Mar. 28, 2014) The Magistrate accepts this argument. [22 at 573-74]. 

However, SSR 96-7p states that the ALJ must consider not only “explanations that 

the individual may provide,” but also “other information in the case record.” 1996 

WL 374186, at *7 (1996). The onus is on the ALJ to develop the case record in 

this regard: 

The adjudicator may need to recontact the individual or 

question the individual at the administrative proceeding in order 

to determine whether there are good reasons the individual does 

not seek medical treatment or does not pursue treatment in a 

consistent manner. 

Id. at *8. 

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The record should have put the ALJ on notice that Plaintiff’s lack of 

treatment was due at least in part to financial hardship. As the ALJ did note, when 

she was first prescribed medication in March 2011, she was unemployed and “her 

husband left her with no money or prospects.” [13-2 at 65]. That year, she fell 

behind on house payments, and her house was eventually foreclosed on in 2012. 

[13-7 at 297-98] Defendant even recognizes that Plaintiff had to forgo treatment in 

2012-13, because her insurance lapsed. [19 at 538 & 548]. It seems probable, then, 

that Plaintiff did not fill her prescription, because she could not afford to. The only 

insight the hearing transcript provides on this matter is Plaintiff’s testimony that 

she was getting treatment at the University of Michigan at the time of the hearing. 

That Michigan was “helping [her] out” because she did not have insurance. [13-2 

at 94-95]. This may explain why Plaintiff began taking medication for her anxiety 

in 2013 but had not taken similar prescriptions in 2011. Although, as Defendant 

notes, Plaintiff did seek some medical treatment during the period in question, it is 

not clear whether she had affordable coverage for mental health services, or access 

to “free or low-cost medical services.” The ALJ had the opportunity to question 

Plaintiff on this matter, and he failed to do so. 

The record also should have put the ALJ on notice that Plaintiff’s lack of 

treatment was a result of her condition. As Plaintiff argues, she was self2:14-cv-14442-AJT-EAS Doc # 25 Filed 03/14/16 Pg 12 of 26 Pg ID 604
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medicating with alcohol, a choice that perhaps explains her “exercise of poor 

judgment in seeking rehabilitation.” Accord Regennitter v. Commissioner, 166 

F.3d 1294, 1299-1300 (9th Cir. 1999); see Blackenship v. Bowen, 874 F.2d 1116, 

1124 (6th Cir. 1989); see also Kangail v. Barnhart, 454 F.3d 627, 630 (7th Cir. 

2006) (“mental illness in general...may prevent the sufferer from taking her 

prescribed medicines or otherwise submitting to treatment.”) [23 at 583]. At the 

hearing, Plaintiff testified that she was wary of taking new medications, because 

the side effects were “disorienting.” [13-2 at 97]. Several treatment notes state that 

Plaintiff had been self-medicating for her anxiety, and suggest that this was due, in 

part, to her fear of starting new medications: 

 On October 9, 2013, Dr. Francis noted: “She notes increase in overall 

baseline anxiety with pressured speech with steroid use. She admits to 

increased daily alcohol use as part of self medicating for anxiety and 

pain.” 

 Dr. Coffey noted on October 25, 2013: “She is wary of starting 

medicines. She has a history of alcohol intake and was recommended to 

cut down on and quit alcohol prior to starting any methotrexate therapy. 

She a history of anxiety, which is longstanding. ... I encouraged her to 

discuss with Dr. Francis the possibl[e] institution of methotrexate for her 

inflammatory arthropathy. It appears that she may find it difficult to quit 

alcohol since she appears to be using it to control anxiety.” 

[13-7 at 454 & 458] Plaintiff may have been self-medicating with alcohol because 

it was cheaper than prescribed medication. She may have preferred to use 

something she was familiar with, because new medications made her anxious. Her 

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medical records also show a history of frequent drinking, suggesting that she may 

have been doing this for many years. 

The record suggests other ways in which the Plaintiff’s anxiety could have 

interfered with her treatment. Plaintiff testified that she does not drive because of 

her anxiety: 

I suffer from anxiety, and I just don’t think I’d be a safe driver 

on the roads for me or anyone else. Because I – like I said, I 

have a sugar problem. I get confused a lot, and I shake a lot, 

and I just don’t think I’d be a very good person to be on the 

road. 

[13-2 at 98]. The ALJ does not find this claim credible, which is discussed below. 

Assuming, arguendo, that Plaintiff really is too anxious to drive, this may have 

made it too difficult to get to a counselor, therapist or psychiatrist on a regular 

basis. As Dr. Bishop noted, Plaintiff’s panic attacks happened “away from home,” 

and were “triggered by small places like elevators or big crowds,” not to mention, 

she was “afraid to leave home alone.” [13-7 at 329]. Thus, her symptoms may have 

made her reluctant to seek treatment. Plaintiff may have been “avoiding ... mental 

stressors that would exacerbate [her] symptoms,” such as leaving her house 

unaccompanied, or taking public transportation. Soc. Sec. Ruling 96-7p, 1996 WL 

374186 at *8. 

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Plaintiff’s symptoms, her self-medication and her financial problems, might 

have explained the lack her lack of mental health treatment. Indeed, when these 

factors are considered, her lack of treatment is consistent with Dr. Bishop’s 

opinion that Plaintiff suffered from panic attacks and agoraphobia which interfered 

with her daily activities. It was the ALJ’s responsibility to consider the foregoing 

evidence before relying on Plaintiff’s noncompliance to discredit her testimony. 

Id. at *7. The ALJ’s decision, however, appears to consider only one explanation – 

that her symptoms were less severe than she claimed. Neither the hearing 

transcript, nor the ALJ’s decision, suggests that he considered other explanations. 

The ALJ also discounted Dr. Bishop’s opinion. To reiterate: “As noted, 

however, the claimant remained independent in her daily activities, and able to 

shop...” [13-2 at 66]. The ALJ may have been arguing that Dr. Bishop’s report 

was inconsistent with Dr. Lazzara’s, which is referenced earlier in his decision. 

However, Drs. Bishop and Lazzara gave very similar descriptions of Plaintiff’s 

daily activities. Dr. Bishop wrote: 

The client has never driven and said her mother and 

grandmother also both have never driven. She is going through 

her house and cleaning it out to move; she has been there for 13 

years. She does her own housework and laundry. Her friend 

will shop and cook. She does get food stamps. She may do 

dishes. She can pay bills if she has money. She can partially 

meet her basic needs. 

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[13-7 at 329]. Dr. Lazzara’s wrote: 

She now lives with a friend as she lost her home due to 

foreclosure. She is able to do her activities of daily living. She 

does not drive. She now has been in the process of clearing all 

her stuff out of her house. She used to enjoy exercising. She is 

able to grocery shop and do household chores with her friend. 

She can sit and stand about a half hour. She does not know how 

much she can lift or how far she can walk. 

[13-7 at 322]. Both doctors’ notes show that Plaintiff did some household work, 

although they are unclear about what, exactly, she was able to do. Both 

descriptions reveal that she got help from her friend, particularly with grocery 

shopping. 

If the ALJ meant, instead, that Dr. Bishop’s conclusions were inconsistent 

with the daily activities Plaintiff reported to both doctors, he did not explain how. 

For example, Dr. Bishop noted that Plaintiff was “afraid to leave the house alone” 

and concluded that Plaintiff suffered from “agoraphobia.” The descriptions above 

mostly confine Plaintiff’s daily activities to her home. The one activity that 

involved leaving her home, shopping, she appears to have done either with her 

friend or not at all. If anything, Plaintiff’s daily activities are consistent with Dr. 

Bishop’s conclusions. The ALJ did not describe or allude to any other daily 

activities. Because the Court is unable to discern from the ALJ’s opinion which of 

Plaintiff’s activities undermined her credibility in the ALJ’s eyes, this basis for the 

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adverse credibility finding lacks the specificity required by Social Security Ruling 

96-7p. 

 Finally, Plaintiff maintains that the record does not support the ALJ’s 

finding that “no longitudinal signs or symptoms of mental distress or dysfunction 

are documented in the record.” [23 at 584]. While Plaintiff did not seek outpatient 

or inpatient psychological between 1999 and 2012, her examining physicians did 

record symptoms of her mental impairments. For example, on March 14, 2011, Dr. 

Demots wrote: 

MICHELLE POLHEMUS presents with complaints of sudden 

onset of anxiety, starting 2 weeks ago. (Husband left her no 

[money] or prospects and doubts the marriage can be put back 

tog[e]ther. Crying. Not sleeping but is in no [danger] or 

suicide). The patient confirms having difficulty concentrating, 

insomnia, irritability, nervousness, sweaty palms, sleep 

disruption, diaphoresis, gastrointestinal complaints, racing heart 

and tremors. 

[13-7 at 356]. The ALJ acknowledges the March 2011 note, but seems to suggest 

that she was only anxious because her husband left her. [13-2 at 65]. This 

argument would make more sense if it were the only mention of anxiety in 

Plaintiff’s records. It is not. Plaintiff saw a counselor for anxiety and depression 

once before, in 1999, following a fight with her supervisor. [13-7 at 314-18]. 

When Dr. Bishop examined Plaintiff, she observed signs of anxiety: “She had good 

reality contact with low self-esteem. She was pleasant although a little anxious. ... 

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She was anxious when seen and had fair eye contact.” [13-7 at 329]. The doctors at 

the University of Michigan also observed Plaintiff’s anxious affect, and prescribed 

medication to treat her anxiety. Infra 12. 

Furthermore, anxiety-disorders are often diagnosed by a person’s history of 

reactions to his or her circumstances. Both State psychological consultants 

reviewed her records and diagnosed her with an anxiety-disorder. It is not clear 

then, what the ALJ meant by “no longitudinal signs or symptoms of mental distress 

or dysfunction are documented in the record.” The ALJ has either ignored these 

signs, and thus misstated the record; White, 312 F. App'x at 788 (“Because the ALJ 

does not accurately state the evidence used to support his finding, his total 

discounting of the mental impairment is not supported by substantial evidence.”); 

or dismissed these signs where medical professionals did not, thus substituting his 

own judgment for that of medical experts. Simpson, 344 F. App'x at 194.

For the foregoing reasons, the Court does not agree with the R&R [22] that 

substantial evidence supported the ALJ’s reasons for discounting the State agency 

consultants’ opinions. Instead, the Court finds that the ALJ’s reliance on Plaintiff’s 

lack of treatment to discount the opinions violated Social Security Ruling 96-7p. 

The ALJ also mischaracterizes and misstates the record in finding no longitudinal 

signs of mental impairment. 

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b. Plaintiff’s Second Objection 

Plaintiff objects to the Magistrate’s conclusion that substantial evidence 

supports the ALJ’s credibility determination. Plaintiff maintains that the ALJ’s 

assessment is improper under SSR 96-7p, and that the ALJ’s support for his 

determination mischaracterizes the record. Aside from Plaintiff’s lack of mental 

health treatment, discussed above, the bases of the ALJ’s credibility assessment, as 

summarized by the Magistrate, were Plaintiff’s supposedly conflicting statements 

about why she quit work in 2009, why she does not drive, and what she was 

capable of doing on a daily basis, as well as a lack of objective support in the 

medical records for Plaintiff’s subjective complaints. [22 at 575-76]. 

Social Security Ruling 96-7p requires an ALJ to provide an explanation of 

his credibility determinations “sufficiently specific to make clear to the [claimant] 

and to any subsequent reviewers the weight the adjudicator gave to the [claimant’s] 

statements and the reasons for that weight.” Id. at *2. In the Sixth Circuit’s words, 

“blanket assertions that the claimant is not believable will not pass muster, nor will 

explanations as to credibility which are not consistent with the entire record and 

the weight of the relevant evidence.” Rogers, 486 F.3d at 248. In cases where 

subjective complaints play an important role in the diagnosis and treatment of the 

condition, providing justification for discounting a claimant’s statements is 

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particularly important. Id. (citing Hurst v. Sec’y of Health & Human Servs., 753 

F.2d 517, 519 (6th Cir. 1985)). Social Security Ruling 96-7p requires: “In 

recognition of the fact that an individual's symptoms can sometimes suggest a 

greater level of severity of impairment than can be shown by the objective medical 

evidence alone,” the ALJ must consider factors, “in addition to the objective 

medical evidence when assessing the credibility of an individual's statements,” 

including, “[t]he individual's daily activities.” 

Plaintiff claimed she quit work in 2009 because of pain in her hands and 

“sugar problems.” [13-2 at 64]. The ALJ found that this claim was not supported 

by the medical records, which showed “no significant ‘sugar problems’ since the 

early 2000s,” and no complaints about hand pain, “apart from some ‘generalized 

wear and tear [from] working maintenance’ until 2013.” [13-2 at 64].The ALJ’s 

reliance on the second point is unclear, because it seems consistent with Plaintiff’s 

claim that she quit her maintenance job in 2009 because of hand-pain. Plaintiff also 

reported “sugar problems” to her doctor in April 2009, 2011 and 2013. [13-7 at 

406; 359; 278]. The ALJ does say that the records show no significant problems, 

although he does not explain what this means. He mentions that Plaintiff’s blood 

glucose measurements were normal in January 2012, but this was nearly three 

years after she had quit her job. [13-2 at 65]. As discussed earlier, findings of fact 

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that misstate the record are not supported by substantial evidence. White, 312 F. 

App'x at 788. 

The ALJ has also argued that Plaintiff contradicted herself when she told a 

doctor, during an April 2012 Psychiatric/Psychological exam, that “[s]he stopped 

working in 2009 since she got married and moved.” [13-2 at 64]. It should be noted 

that this may not be a fair basis for comparison, as this report focused primarily on 

Plaintiff’s mental impairments. See Keeton v. Comm'r of Soc. Sec., 583 F. App'x 

515, 527 (6th Cir. 2014) (ALJ’s determination was not supported by the record, in 

part because he failed to consider that medical examiner and psychological 

examiner reported different findings because they were concerned with different 

ailments.) 

As discussed previously, the Plaintiff claimed that she does not drive due to 

her anxiety. The ALJ argued that she somehow contradicted herself when 

elsewhere she stated that she had never driven, and neither had her mother or 

grandmother. [13-2 at 64]. Defendant offers an explanation, stating that “the true 

reason she did not drive was that she never learned. ... Despite Plaintiff’s protest, 

the ALJ correctly found that she never drove, as opposed to having stopped driving 

at some point due to anxiety.” [19 at 553-54]. This explanation does not make 

sense. Plaintiff claimed to have had problems with anxiety since she was 15 years 

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old. Since this was around the time she would have learned how to drive, the fact 

that she has never driven is consistent with her claim. Defendant does not help by 

misstating the Plaintiff’s testimony, as Plaintiff never claimed that she “stopped 

driving at some point due to anxiety.” 

The ALJ notes that Plaintiff was able to clean out her house to move in 

2012, which would undermine the claims she made during her hearing about her 

limitations. [13-2 at 64]. However, the medical records only vaguely mention that 

she was in the “process” of “clearing out her house.” [13-7 at 323 & 329]. The 

records do not indicate what kind of physical activity this involved. Moreover, the 

ALJ downgraded the level of work Plaintiff was capable of performing from 

“medium” in 2012 to “light” at the time of the hearing, because she had 

subsequently been diagnosed with inflammatory arthritis and degenerative spinal 

changes. [13-2 at 67]. It is illogical for the ALJ to recognize further limitations on 

Plaintiff’s abilities during one determination, but ignore them for the purposes of 

his credibility determination. 

For the foregoing reasons, the Court does not agree with the R&R [22] that 

the ALJ’s RFC credibility determinations were supported by substantial evidence. 

The ALJ did not clearly explain how Plaintiff’s statements were inconsistent with 

the record, he otherwise misstated the record, and he did not properly consider the 

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factors listed in SSR 96-7p when assessing the credibility of Plaintiff’s subjective 

complaints. 

c. Plaintiff’s Third Objection 

 Plaintiff objects to the Magistrate’s decision that substantial evidence 

supports the ALJ’s RFC determination. Plaintiff contends that the ALJ failed to 

include limitations related [Plaintiff’s] ankle pain, cervical pain, and anxiety. [23 at 

586]. The Magistrate responded that the ALJ did not include limitations that he 

properly found not credible, and Plaintiff specifies no other limitations that 

warranted inclusion in her RFC. [22 at 577-78] 

 When crafting an RFC, an ALJ is only required to include those limitations 

he finds credible. See Irvin v. Soc. Sec. Admin., 573 Fed. Appx. 498, 502 (6th Cir. 

2014) (citing Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1235 (6th 

Cir. 1993)). The ALJ found that Plaintiff could “perform light work as defined in 

20 CFR 404.1567(b) and 416.967(b) ...In addition, [Plaintiff] requires a ‘sit/stand 

option’, defined as the ability to occasionally alternate between sitting and standing 

positions while remaining on-task at least 90 percent of an ordinary workday, with 

usual and customary breaks.” [13-2 at 63]. Based on this RFC, a vocational expert 

(“VE”) determined that Plaintiff could adjust to work that existed in significant 

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numbers in the national economy [13-2 at 83-84], and the ALJ adopted this 

determination. [13-2 at 68] 

 At the hearing, in response to questions from Plaintiff’s attorney, the VE 

testified that the work mentioned would require Plaintiff to be off-task for no more 

than ten percent of the work day, and would not allow more than one absence a 

month. [13-2 at 85-86]. Dr. Tareen had opined that Plaintiff’s “ability to complete 

a normal workday and workweek without interruptions from psychologically based 

symptoms and to perform at a consistent pace without an unreasonable number and 

length of rest periods” was “moderately limited.” The ALJ did not include this 

limitation in his RFC determination for reasons that are not supported by the 

record. 

The VE also testified that if Plaintiff were limited to lifting five pounds, 

work only existed in significant numbers at the sedentary level. [13-2 at 86]. 

“Light” work requires the ability to lift and carry up to 20 pounds for 2 hours of an 

8-hour workday, and to lift and carry up to 10 pounds for 6 hours of an 8-hour 

workday. Plaintiff testified that she did not lift more than 5 pounds on a daily basis, 

and doubted that she could frequently or occasionally lift more than that. Although 

the ALJ found this testimony not credible, the Court has already concluded that the 

ALJ did not properly evaluate her credibility. 

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CONCLUSION

Plaintiff’s Motion for Summary Judgment [17] asks the Court to reverse the 

ALJ’s decision and award her benefits or, in the alternative, remand the case for 

further proceedings. A district court may reverse a decision of the Commissioner 

of Social Security and immediately award benefits “only if all essential factual 

issues have been resolved and the record adequately establishes [the claimant’s] 

entitlement to benefits.” Faucher v. Sec’y of Health & Human Servs., 17 F.3d 171, 

176 (6th Cir. 1994). 

The Court finds that the credibility of Plaintiff’s testimony concerning the 

severity and limiting effects of her symptoms is an essential factual issue in this 

case. The ALJ failed to resolve the issue in a manner consistent with Social 

Security Agency regulations, as explained above. The Court may not decide 

questions of credibility. Garner, 745 F.2d at 387. Remand, rather than a judicial 

award of benefits, is thus the appropriate remedy. See Faucher, 17 F.3d at 174-76. 

 For the foregoing reasons, the Court declines to adopt the Report and 

Recommendation [23]. Therefore, 

IT IS ORDERED that Plaintiff’s Motion for Summary Judgment [17] is 

GRANTED IN PART. IT IS FURTHER ORDERED that Defendant's Motion 

for Summary Judgment [19] is DENIED. 

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 IT IS FURTHER ORDERED that this case is REMANDED for a 

reassessment of the credibility of Plaintiff’s testimony concerning the severity and 

limiting effects of her symptoms, employing the proper legal standards, and a new 

decision on her application consistent with the reassessment. 

 This case is CLOSED. 

SO ORDERED. 

s/Arthur J. Tarnow 

 Arthur J. Tarnow 

Dated: March 14, 2016 Senior United States District Judge 

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