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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DETRIUS DEVON BURKS, 

 Plaintiff, 

v. 

COMMISSIONER OF 

SOCIAL SECURITY, 

 Defendant. 

 

Case No. 2:14-cv-13331 

Judge Stephen J. Murphy, III 

Magistrate Judge Anthony P. Patti 

___________________________________/ 

REPORT AND RECOMMENDATION REGARDING PLAINTIFF’S 

AMENDED MOTION FOR SUMMARY JUDGMENT (DE 10) and 

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (DE 13) 

I. RECOMMENDATION: For the reasons that follow, it is 

RECOMMENDED that the Court DENY Plaintiff’s amended motion for 

summary judgment (DE 10), GRANT Defendant’s motion for summary judgment 

(DE 13), and AFFIRM the Commissioner’s decision. 

II. REPORT 

 Plaintiff, Deatrius Devon Burks, brings this action under 42 U.S.C. § 405(g) 

for review of a final decision of the Commissioner of Social Security 

(“Commissioner”) denying her applications for disability insurance benefits (DIB) 

and supplemental security income benefits (SSIB). This matter is before the 

United States Magistrate Judge for a Report and Recommendation on Plaintiff’s 

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amended motion for summary judgment (DE 10), the Commissioner’s cross 

motion for summary judgment (DE 13) and the administrative record (DE 6). 

 When this action began, Plaintiff’s was represented by attorney, Richard J. 

Doud of the law firm of Davidson, Breen, Doud, Steele & Ferguson, P.C. (the 

“Davidson firm”). During the pendency of this action, this case was temporarily 

transferred to a three-judge panel for consideration of the Commissioner’s request 

for a global 60 day stay and the question of substitution of counsel in all pending 

cases of attorney Richard J. Doud. (See Text-Only Order dated 5/20/15 and 

Administrative Order 15-AO-033.) On June 9, 2015, the case was stayed. (DE 

16.) On October 19, 2015, the panel concluded its work and transferred the case 

back to the judge to whom the matter was originally assigned, indicating that it was 

the responsibility of the originally assigned judge to determine when to lift the stay 

in the case. (See Text-Only Order dated 10/19/2015 and Administrative Order 15- 

AO-045.) This Court lifted the stay in this matter on November 3, 2015. (DE 17.) 

 As a result of the panel’s work, the Davidson firm was directed to send 

Plaintiff a letter indicating that no lawyers at that firm are permitted to represent 

her in this case. The letter was also to provide her with the names of other lawyers 

who handle Social Security disability cases, as well as the State Bar of Michigan’s 

attorney referral telephone number. Plaintiff was given 60 days from October 19, 

2015 to retain a new lawyer or proceed without the assistance of counsel. To date, 

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there is no indication that Plaintiff has retained alternate counsel. On January 8, 

2016, the Court issued a notice to inform Plaintiff that she could file a new motion 

for summary judgment or supplement the existing motion by informing the Court 

of her intention to do so on or before January 15, 2016. The Court did not receive 

any notice from Plaintiff and will therefore proceed on the current briefing. 

A. Background

 Plaintiff filed her applications for DIB and SSIB on December 21, 2011, 

alleging that she has been disabled since December 1, 2009, at age 38. (R. at 154-

160, 161-167.) Plaintiff alleges disability as a result of: lupus, Achilles tendonitis, 

fibromyalgia, plantar fasciitis and tendonitis in both shoulders. (R. at 199-209.) 

Plaintiff’s applications were denied on March 19, 2012. (R. at 74-83, 84, 85, 86-

95.) 

On April 17-18, 2012, Plaintiff sought a de novo hearing before an 

Administrative Law Judge (“ALJ”). (R. at 105, 108-112.) ALJ John Ransom held 

a hearing on May 9, 2013, at which Plaintiff was represented by attorney Aaron 

Lemmens and Vocational Expert (VE) Judith Katheryn Findora testified. (R. at 

57-73.) On May 15, 2013, ALJ Ransom determined that Plaintiff was not disabled 

within the meaning of the Social Security Act. (R. at 41-56.) 

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Plaintiff requested review of the hearing decision. (R. at 39-40.) On June 

25, 2014, the Appeals Council denied Plaintiff’s request for review. (R. at 1-5.) 

Thus, ALJ Ransom’s decision became the Commissioner’s final decision. 

Plaintiff then timely commenced the instant action on August 27, 2014, via 

attorney Richard Doud. (DE 1.) 

B. Plaintiff’s Medical History 

 Plaintiff alleges that he has been disabled since December 1, 2009. (See R. 

at 156, 161.) Approximately 478 pages of Plaintiff’s medical records, spanning the 

period of June 16, 2009 through March 11, 2013, were available to ALJ Ransom. 

R. at 237-714 (Exhibits 1F-26F; see also R. at 54-56). In addition, the record 

contains documents from the University of Michigan Health System dated 

December 14, 2013 through February 24, 2014 (R. at 13-36), as well as a March 

24, 2014 letter from Todd A. Sandrock, D.O., of Flint Orthopedic Associates, P.C., 

to James Brown, M.D. (R. at 37-38.) 

Although Plaintiff’s medical records will be discussed in detail as necessary 

below, I particularly note pertinent records cited by the ALJ in his decision and by 

the Plaintiff in her brief: 

 During June and July 2010, Plaintiff received speech therapy at 

Genesys Therapy Services. She was discharged on July 7, 

2010, “secondary to consistent lack of attendance.” (R. at 262-

270.) 

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 On September 2, 2010, Plaintiff was examined by Ali Karrar, 

M.D., for an initial evaluation of joint pain and tenderness, 

“mostly located in the ankle bilateral, elbow bilateral, fingers 

bilateral, hand bilateral, hip bilateral, knee, [multiple] joints of 

the upper and lower extremities, low back and neck.” Plaintiff 

described her pain as aching and sharp, as well as constant. Dr. 

Karrar’s impressions included rheumatoid arthritis (RA), 

fibromyalgia, systemic lupus erythematosus (SLE), and 

hypothyroidism. (R. at 514-516.) 

 Plaintiff again saw Dr. Karrar on October 6, 2010, who noted 

pain elicited from multiple tender point sites. Dr. Karrar’s 

impressions included fibromyalgia and SLE. (R. at 517-518.) 

 On November 17, 2010, Plaintiff again saw Dr. Karrar. As to 

the right shoulder, he noted “[m]ovements are painful with 

flexion beyond degrees, extension beyond degrees, abduction 

beyond degrees and adduction beyond degrees. On palpation, 

tenderness is noted in the genohumeral joint.” Dr. Karrar 

diagnosed Plaintiff with myalgia and myositis not otherwise 

specified, SLE and rotator cuff syndrome et al. (R. at 519-521.) 

 On December 3, 2010, Plaintiff was evaluated at Hurley 

Medical Center Rehabilitation Services, as she had been 

diagnosed with bilateral Achilles tendonitis, as well as plantar 

fasciitis. The subjective findings noted, among other things, 

that Plaintiff has had Achilles tendonitis, left worse than right, 

for years and that Plaintiff was also developing right plantar 

fasciitis and/or a right heel spur. (R. at 342-348.) Plaintiff was 

re-assessed on December 30, 2010. (R. at 349.) 

 On January 13, 2011, Plaintiff again saw Dr. Karrar. He 

diagnosed Plaintiff with SLE, rotator cuff syndrome et al. and 

fibromyalgia/fibrositis. (R. at 522-524.) 

 On March 3, 2011, Plaintiff was seen by James Brown, M.D., 

who noted Plaintiff’s complaints of “exacerbation of diffuse 

pain in muscles and joints . . . .” The diagnoses appear to have 

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included SLE/fibromyalgia, plantar fasciitis and 

gastroesophageal reflux disease (GERD). (R. at 593.) 

 On December 20, 2011, Plaintiff was again seen by Dr. James 

Brown, who noted continuing joint pain. Dr. Brown’s 

diagnoses appear to have included fibromyalgia, lupus 

erythematosus, chronic rotator cuff tear, chronic pain, Achilles 

tendonitis and GERD. (R. at 586.) 

 On March 6 and March 26, 2012, Plaintiff saw David Taylor, 

D.P.M., whose impressions included bilateral plantar fasciitis, 

fibromyalgia and/or RA and possible medial calcaneal neuritis. 

(R. at 697-698.) During the earlier visit, which was to follow 

up on plantar fasciitis, Dr. Taylor noted pain in both heels, as 

well as swelling and pain to touch. (R. at 698.) 

 On March 7, 2012 and April 2, 2012, Plaintiff again saw Dr. 

Karrar, who diagnosed RA, SLE, “rotator cuff syndrome et al,” 

and fibromyalgia/fibrositis. (R. at 558-561, 562-565.) Among 

other things, Dr. Karrar’s April 2, 2012 notes indicated that 

Plaintiff’s condition was, “Over all stable.” (R. at 564.) 

(See R. at 47-49, DE 10 at 10-11.) 

 C. Hearing Testimony (May 9, 2013) 

 1. Plaintiff’s Testimony 

 Plaintiff testified at the May 9, 2013 hearing. (R. at 60-70.) At the time of 

the hearing, Plaintiff was 42 years of age and weighed 235 pounds, although her 

normal weight was 180, 200. She attributed the weight gain to steroids. (R. at 67.) 

Plaintiff testified that she is divorced, and her three children (ages 12, 15 and 20) 

live with her in a house. (R. at 68.) She graduated from high school, and the last 

time she worked was in 2010, following vocal cord surgery. (R. at 68-69.) She 

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had been working as an assistant teacher at a preschool – a paraprofessional. (R. at 

69.) She finally stopped working, because she “couldn’t take the pain too much 

longer.” (R. at 70.) 

Plaintiff additionally testified about impairments involving her shoulders, 

arthritis, plantar fasciitis and fibromyalgia. (R. at 60-62.) 1 For example, she stated 

she cannot reach too far above her head or reach out too far, because her shoulders 

and wrists give out on her. (R. at 60.) She also testified that her arthritis causes 

“[s]harp pain, some numbness, and I can barely walk on my feet at times[,]” and 

that the pain from her plantar fasciitis is constant. (R. at 61.) As for her hands, 

Plaintiff testified that she experiences tingling, and her fingers get stiff, such that 

she has to “take [her] fingers and unfold them.” (R. at 66-67.) She can write about 

five or six sentences. (R. at 67.) 

She also explained that the side effects from her medications include not 

sleeping, hair falling out and dizzy spells. (R. at 62-63.) She further testified that 

she spends approximately 80-85 percent of the day lying down, while her children 

are in school, because her body aches or she gets dizzy. (R. at 63.) According to 

Plaintiff, she can sit for 20-30 minutes and stand for 10-15 minutes; also, she can 

walk half of a city block before needing to sit down. (R. at 65.) She can 

 

1 The ALJ questioned Plaintiff regarding “mention in the medical record that you 

also have arthritis[,]” and Plaintiff explained it was all through her body. (R. at 

61.) Here, I note that arthritis is not one of the disabilities Plaintiff alleged on her 

application; however, the application does list lupus and fibromyalgia. (R. at 200.)

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comfortably lift “[a]bout a 5-pound bag of sugar, or a 10-pound. That’s it.” (R. at 

65-66.) 

 2. Vocational Expert Testimony

 VE Judith Katheryn Findora testified as to four (4) hypotheticals. (R. at 70-

72.) First, when asked to assume an individual of 42 years of age with Plaintiff’s 

education and past work, her alleged limitations and impairments, and the 

credibility of her testimony, the VE testified that such an individual would not be 

able to perform any of Plaintiff’s past work or any other sedentary or light work, 

because she would need at least a seated position, she was unable to use her hands 

or to walk for any extended period of time, and she lays down 80 percent of the 

day. (R. at 70-71.) Second, the VE was asked to assume such an individual could 

perform sedentary work with the following restrictions: 

. . . she would need a sit/stand option at will; with no repetitive 

bending, twisting, turning, pushing, pulling, reaching, torquing, 

gripping, or grasping; occasional crawling, squatting, kneeling, and 

stair-climbing; no air or vibrating tools; no working around 

unprotected heights or moving machinery; and no repetitive foot 

controls. 

The VE testified that such an individual could perform jobs as a credit and account 

clerk, an information clerk and an administrative clerk. (R. at 71.) 

Upon examination by Plaintiff’s counsel, the VE testified that if such an 

individual, due to impairments or a combination of impairments, or doctors’ visits, 

would be absent from work two or more days a month on a continued, ongoing 

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basis, neither the indicated jobs nor any other jobs would exist. (R. at 71-72.) 

Finally, the VE provided the same testimony when asked to assume this individual 

would have to take additional breaks above and beyond the normal work breaks 

and lunches, about two extra breaks, 15 minutes apiece. (R. at 72.) 

 D. The Administrative Decision2

 ALJ Ransom rendered his decision on May 15, 2013. (R. at 41-56.) At Step 

1, the ALJ found that Plaintiff has not engaged in any substantial gainful activity 

since December 1, 2009, the alleged onset date. (R. at 46.) 

 

2 Social Security Regulations require ALJs to resolve a disability claim through a 

five-step sequential evaluation of the evidence. See 20 C.F.R. §404.1520(a)(4). 

Although a dispositive finding at any step terminates the ALJ’s review, see Colvin 

v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), if fully considered, the sequential 

review considers and answers five questions: 

 1. Is the claimant engaged in substantial gainful activity? 

 2. Does the claimant suffer from one or more severe impairments? 

 3. Do the claimant’s severe impairments, alone or in combination, meet 

or equal the criteria of an impairment set forth in the Commissioner’s Listing of 

Impairments, 20 C.F.R. Subpart P, Appendix 1? 

 4. Considering the claimant’s residual functional capacity, can the 

claimant perform his or her past relevant work? 

 5. Considering the claimant’s age, education, past work experience, and 

residual functional capacity, can the claimant perform other work available in the 

national economy? 

See 20 C.F.R. §404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th 

Cir. 2009); Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001). 

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At Step 2, the ALJ found that Plaintiff has the following severe impairments: 

rheumatoid arthritis (RA), lupus erythematosus, fibromyalgia, plantar fasciitis, 

shoulder pain, and a mitral valve disorder. (R. at 47.) 

At Step 3, the ALJ found that Plaintiff does not have an impairment or 

combination of impairments that meets or medically equals the severity of one of 

the listed impairments. (R. at 47.) 

At Step 4, the ALJ found that Plaintiff has the residual functional capacity 

(RFC) to perform sedentary work, except with restrictions of a sit/stand option at 

will, no repetitive bending, twisting, turning, pushing, pulling, gripping, grasping, 

reaching or torquing. Further limitations include occasional crawling, squatting, 

kneeling and stair climbing, no air or vibrating tools, no unprotected heights or 

working around moving machinery, and no repetitive use of foot controls. (R. at 

47-49.) Moreover, the ALJ found that Plaintiff is unable to perform any past 

relevant work. (R. at 49-50.) 

At Step 5, the ALJ found that, considering Plaintiff’s age, education, work 

experience, and RFC, there are other jobs that exist in significant numbers in the 

national economy that Plaintiff can perform, including the unskilled sedentary jobs 

of credit clerk, information clerk and administrative clerk. (R. at 50-51.) 

 E. Standard of Review

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 The District Court has jurisdiction to review the Commissioner’s final 

administrative decision pursuant to 42 U.S.C. § 405(g). When reviewing a case 

under the Social Security Act, the Court “must affirm the Commissioner’s decision 

if it ‘is supported by substantial evidence and was made pursuant to proper legal 

standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. at 2009) 

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. at 2007)); see 

also 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner of Social Security as 

to any fact, if supported by substantial evidence, shall be conclusive . . . .”). Under 

this standard, “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, 486 F.3d at 241 

(quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 

1994)). In deciding whether substantial evidence supports the ALJ’s decision, the 

court does “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); 

Rogers, 486 F.3d at 247 (“It is of course for the ALJ, and not the reviewing court, 

to evaluate the credibility of witnesses, including that of the claimant.”). 

 Although the substantial evidence standard is deferential, it is not trivial. 

The Court must “‘take into account whatever in the record fairly detracts from 

[the] weight’” of the Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 

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395 (6th Cir. 2002) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 

(1951)). Nevertheless, “if substantial evidence supports the ALJ’s decision, this 

Court defers to that finding ‘even if there is substantial evidence in the record that 

would have supported an opposite conclusion.’” Blakley v. Comm’r of Soc. Sec., 

581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). 

Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘a 

decision of the Commissioner will not be upheld where the SSA fails to follow its 

own regulations and where that error prejudices a claimant on the merits or 

deprives the claimant of a substantial right.’” Rabbers, 582 F.3d at 651 (quoting 

Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)). 

F. Analysis

In her motion for summary judgment, Plaintiff sets forth an overriding 

statement of error that “[t]he Commissioner erred as a matter of law in assessing 

Deatrius Burks’s credibility and by failing to properly evaluate the medical records 

of evidence and, thereby, forming an inaccurate hypothetical that did not 

accurately portray Deatrius Burks’s impairments.” (DE 10 at 6-15.) This is the 

verbatim statement of error repeatedly propounded by Plaintiff’s counsel in 

numerous other cases filed in this District, apparently without taking into account 

the factual and procedural history of each unique adjudication. See, e.g., 

Henderson v. Comm’r of Soc. Sec., No. 13-13225, 2014 WL 3529727, *4 (E.D. 

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Mich. June 19, 2014) (Grand, M.J.), report and recommendation adopted, 2014 

WL 3529441 (E.D. Mich. July 16, 2014) (Berg, J.). 

More accurately, Plaintiff asserts that the ALJ erred by improperly 

discounting her credibility and failing to properly evaluate the medical records of 

evidence (DE 10 at 10-11, 14), which, in turn, led to an improper hypothetical to 

the VE that did not accurately portray Plaintiff’s impairments (Id. at 11-12.) In 

addition, she briefly mentions the treating source rule, but does not explain how the 

ALJ erred in this regard. (Id. at 12-14.) She also attempts a Step 5 argument, 

alleging that “the Commissioner failed to satisfy this burden of proof . . . .” (Id. at 

1 ¶ 3, 8-9). The Commissioner opposes Plaintiff’s motion, specifically asserting 

that “[t]he ALJ properly assessed Plaintiff’s credibility.” (DE 13 at 14-18.) 

 Plaintiff has been put in an unfortunate situation by her former counsel 

(Richard J. Doud), who, among other significant shortcomings in his briefing, 

twice refers to Plaintiff by the wrong name, presumably that of another client, 

including in the opening line of the motion. (DE 10 at 1, 5.) Also, on at least four 

occasions, counsel makes use of masculine pronouns or modifiers, such as “he” 

and “his,” for this female claimant. (DE 10 at 5, 14-15.) As noted above, due to 

myriad issues, her counsel of record and his law firm were removed from this case 

(and all Social Security appeals in the Eastern District of Michigan). Plaintiff did 

not take the opportunity to retain new counsel and chose not to re-file or 

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supplement the current briefing, despite this Court’s invitation to do so. (DE 20.) 

Therefore, the Court will limit its consideration to those matters arguably presented 

by Plaintiff’s motion (DE 10), even if, as discussed below, the briefing on those 

matters is inadequate, and to a consideration of the administrative record for any 

obvious errors in the ALJ’s conclusions. See Brinkley v. Comm’r of Soc. Sec., No. 

14-13560, 2015 WL 1637598, at *2-3 (E.D. Mich. Apr. 13, 2015) (Michelson, J., 

adopting report and recommendation of Patti, M.J.) (where Plaintiff is pro se, the 

Court may “review[] the administrative record for obvious errors in order to affirm 

the Commissioner’s conclusions . . . .” (internal citations and quotations omitted)). 

The Undersigned will address each of the parties’ arguments in turn. 

1. Substantial evidence supports the ALJ’s credibility 

determination. 

In his Step 4 RFC determination, ALJ Ransom considered Plaintiff’s hearing 

testimony, several medical records and Plaintiff’s January 11, 2012 function report. 

(See R. at 47-49.) ALJ Ransom concluded that Plaintiff’s “allegations of totally 

disabling physical impairments resulting in an inability to engage in any type of 

sustained work activity [are] not fully credible[,]” and “statements concerning the 

intensity, persistence and limiting effects of these symptoms are not entirely 

credible for the reasons explained in this decision.” (R. at 49.) 

Plaintiff takes issue with the ALJ’s credibility determination (see DE 10 at 

6-12, 14-15), in particular citing 20 C.F.R. § 404.1520 (“Evaluation of disability in 

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general.”) and 20 C.F.R. § 404.1529 (“How we evaluate symptoms, including 

pain.”). 

 Plaintiff contends “[h]er testimony is backed up by the medical evidence and 

to indicate it is not and that her testimony [is] not credible is clearly in error.” (DE 

10 at 10.) In support of this argument, Plaintiff expressly cites certain records by 

Dr. Taylor, Dr. Brown, ophthalmologist Daniel J. Ryan, M.D. (R. at 602), Dr. 

Karrar, and the December 2010 records from Hurley Medical Center Rehabilitation 

Services, ultimately contending that her testimony about her severe medical 

impairments is “backed up by medical documentation . . . .” (DE 10 at 10-11.) 

According to Plaintiff, she “would only be capable of engaging in substantial 

gainful activity only [sic] by enduring great pain . . . .” (DE 10 at 14.) 

Still, the Court should conclude that substantial evidence supports the ALJ’s 

credibility determination. “The ALJ's assessment of credibility is entitled to great 

weight and deference, since he [or she] had the opportunity to observe the witness's 

demeanor.” Infantado v. Astrue, 263 F. App’x 469, 475 (6th Cir. 2008). “[A]n 

administrative law judge's credibility findings are virtually ‘unchallengeable.’” 

Ritchie v. Comm'r of Soc. Sec., 540 F.App'x 508, 511 (6th Cir. 2013) (quoting 

Payne v. Comm'r of Soc. Sec., 402 F.App’x 109, 112–13 (6th Cir. 2010)). 

Nevertheless, “an ALJ's assessment of a claimant's credibility must be supported 

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by substantial evidence.” Walters v. Comm'r Soc. Sec., 127 F.3d 525, 531 (6th Cir. 

1997). 

 Here, the ALJ appropriately evaluated Plaintiff’s symptoms. As to the 

Plaintiff’s testimony that her medications caused loss of hair and dizzy spells, the 

ALJ pointed to Dr. Karrar’s March 7, 2012 notes from a follow up visit for right 

shoulder and bilateral knee pain, which report that Plaintiff’s joint pain is 

intermittent and “gets better with medication.” The ALJ also stated, “Claimant did 

not testify that prescribed medication was ineffective when taken as directed. Even 

if medication caused dizziness, the record has failed to establish a severity which 

would preclude all work activity.” (See R. at 48, 63, 558-561.) 

Next, the ALJ referred to, among other things, Plaintiff’s testimony about 

lying down “[a]t least about 80, 85 percent of the day, while my children are in 

school.” Here, the ALJ observed that “[t]he record does not indicate that any 

treating source has recommended napping or resting most waking hours[,]” and 

also cited to Plaintiff’s January 11, 2012 function report, with references to 

Plaintiff’s answers about meals, house and yard work, getting around, shopping 

and social activities. (R. at 48, 63; see also R. at 221-222.) 

Then, the ALJ stated: 

Claimant's allegations of totally disabling physical impairments 

resulting in an inability to engage in any type of sustained work 

activity [are] not fully credible. Further, the objective findings of 

record do not support the degree of her subjective complaints. The 

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record does not indicate that any treating or examining physician has 

placed specific exertional limitations upon her activities of daily 

living.[3

] None has stated she is precluded from all gainful work 

activity. Although she underwent physical therapy in June and July 

2010, the record does not indicate any treatment at a chronic pain 

clinic or prescription of a TENS [transcutaneous electrical nerve 

stimulation] unit. The record does not indicate that claimant has been 

advised to undergo a surgical procedure for any condition, including 

for shoulder, plantar fasciitis or mitral valve disorders. She advised 

Dr. Karrar that her leg and arm pain was only intermittent and the 

physician disclosed she was able to bear weight and had a normal gait. 

(R. at 49.) 4 The ALJ further noted that Plaintiff reported no residual limitations 

following her vocal cord surgery and also noted that the record has not established 

ongoing treatment for her alleged dizzy spells. Id. 

Although the above analysis does not contain express citations, it is clear the 

ALJ was referring to the June and July 2010 speech therapy records from Genesys 

Therapy Services (R. at 262-270).5

 It is also likely the ALJ was referring to Dr. 

 

3 “[A] lack of physical restrictions constitutes substantial evidence for a finding of 

non-disability.” Maher v. Sec'y of Health & Human Servs., 898 F.2d 1106, 1109 

(6th Cir. 1989) (citing Nunn v. Bowen, 828 F.2d 1140, 1145 (6th Cir.1987)). 

4 See McKenzie v. Comm'r, Soc. Sec. Admin., No. 99-3400, 2000 WL 687680, *4 

(6th Cir. May 19, 2000) (“Plaintiff's complaints of disabling pain are undermined 

by his non aggressive treatment.”), Byberg v. Comm'r of Soc. Sec., No. 12-10158, 

2013 WL 1278397, at *9 (E.D. Mich. Mar. 11, 2013) (Hluchaniuk, M.J.), report 

and recommendation adopted, No. 12-10158, 2013 WL 1278500 (E.D. Mich. Mar. 

27, 2013) (Zatkoff, J.) (“Their records show very conservative routine treatment, 

including occasional injections, mild pain medication, and use of a TENS unit.”) 

5 The Court further notes the December 2010 assessments at Hurley Medical Center 

Rehabilitation Services, specifically the December 30, 2010 re-assessment which 

indicated improvement in foot pain, and range of motion (ROM) but did not 

indicate improvement in tolerance for standing/ambulation. (R. at 342-349.) 

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Karrar’s September 2, 2010, January 13, 2011, March 7, 2012 and April 2, 2012 

notes, because the ALJ discussed these notes earlier in the Step 4 RFC discussion. 

(See R. at 48.) While the earlier two visits note constant pain, the latter two visits 

note intermittent joint pain. (Compare R. at 514, 522, 558 & 562.) Moreover, 

while notes from the earliest visit indicate “antalgic gait-minimal[,]” the notes 

from the three other visits indicate, among other things, an ability to bear weight 

on both ankles and/or normal gait. (R. at 515, 523, 559 & 563; see also R. at 403-

405, 411-413, and 446-449.) 

Furthermore, the ALJ highlighted other substantial, objective evidence from 

the medical record which contradicted Plaintiff’s subjective complaints, 

specifically noting the following with reference to Dr. Karrar’s March 7, 2012 

notes: 

. . . claimant was able to sit comfortably on the examination table 

without difficulty or evidence of pain. She had full range of motion 

without pain of the neck. She reported pain with range of motion 

movement of the right shoulder and left elbow. Tinnel’s and Phalen’s 

signs were negative in the hands. There was no decreased range of 

motion, weakness or numbness of the hands. Examination of the 

spine was normal with no limitation in range of motion. There were 

no negative findings in the ankles and she was able to bear weight on 

both ankles and had a normal gait. 

 

(R. at 48.) This appears to be a fair characterization of Dr. Karrar’s March 7, 2012 

objective findings. (See R. at 446-449, 558-561.) 

 

 

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Therefore, within his Step 4 RFC determination, the ALJ considered 

Plaintiff’s testimony, various medical records, and the January 11, 2012 function 

report (R. at 47-49), as well as several of the factors set forth in 20 C.F.R. § 

404.1529(c), such as Plaintiff’s daily activities, medication, and treatment other 

than medication. 20 C.F.R. § 404.1529(c)(i),(iv),(v). “Discounting credibility to a 

certain degree is appropriate where an ALJ finds contradictions among the medical 

reports, claimant's testimony, and other evidence.” Walters v. Comm'r of Soc. Sec., 

127 F.3d 525, 531 (6th Cir. 1997). The ALJ’s credibility determination here is 

supported by substantial evidence. 

At this juncture, I direct the Court’s attention to the “legal argument” portion 

of Plaintiff’s brief. (DE 10 at 6-15.) Plaintiff makes several express references to 

the medical record; however, these are mostly lists of diagnoses or impressions 

(such as fibromyalgia, lupus / systemic lupus erythematosus (SLE), rheumatoid 

arthritis (RA) / arthritis, plantar fasciitis bilateral / right heel spur, Achilles 

tendonitis, and chronic rotator cuff tear / rotator cuff syndrome), many of which 

the ALJ acknowledged in some form at Step 2 as severe impairments (rheumatoid 

arthritis, lupus erythematosus, fibromyalgia, plantar fasciitis, shoulder pain and a 

mitral valve disorder). (See DE 10 at 10-11, R. at 47.). In addition, the ALJ 

acknowledged Dr. Karrar’s diagnoses of rotator cuff syndrome at Step 4. (R. at 48, 

560, 564.) Also, while the ALJ’s decision does not mention Achilles tendonitis, 

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the ALJ’s Step 4 discussion acknowledged Plaintiff’s testimony about plantar 

fasciitis causing sharp foot pain (R. at 47, 61) and Dr. Taylor’s March 6, 2012 

notes indicating “possible medial calcaneal neuritis.” (R. at 48, 698.)6

 The same 

would apply to the ALJ’s failure to expressly mention the right heel spur indicated 

in the December 3, 2010 Hurley Medical Center Rehabilitation notes or to 

expressly mention the swelling in her heels indicated in Dr. Taylor’s March 6, 

2012 notes. (See DE 10 at 11, R. 342, R. at 698.) Plaintiff’s argument that her 

testimony regarding her severe medical impairments is “backed up” by the medical 

evidence merely takes issue with the ALJ’s Step 4 RFC determination. (See DE 10 

at 10-11.) The fact is, her testimony about sharp foot pain and plantar fasciitis was 

considered and accommodated in the RFC’s prohibition against “repetitive use of 

foot controls[,]” and requirement of “a sit/stand option at will[.]” (R. at 47, 49, 

61.) 

To be sure, Plaintiff also cites documentation of pain, tenderness and 

positive trigger points noted in various records from Drs. Ryan, Karrar, Taylor and 

Brown. (See DE 10 at 11.) However, the ALJ’s decision gave credit to much of 

her testimony, expressly stating: 

 

6 Contrary to the ALJ’s citation to Dr. Taylor’s March 26, 2012 notes, it is actually 

Dr. Taylor’s March 6, 2012 notes which document this impression. (Compare R. 

at 48, 697, 698.) Nonetheless, “Achilles tendon” and “calcaneal tendon” are 

synonyms. Stedman’s Medical Dictionary 901240. 

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 Her allegations with respect to the shoulders would be accommodated 

by no use of air or vibrating tools and no repetitive pushing, pulling, 

gripping, grasping, reaching or torquing. 

. . . 

 Claimant has been diagnosed with fibromyalgia and lupus 

erythematosus. A reduced range of sedentary work with the 

restrictions cited in her residual functional capacity would 

accommodate the alleged joint discomfort. 

 Her allegations of a knee giving out on occasional [sic] when 

climbing stairs would be accommodated by no repetitive use of foot 

controls and a sit/stand option at will. 

 The mitral valve disorder would be accommodated by a reduced 

range of sedentary exertion work. 

(R. at 49 (emphasis added).) Thus, the ALJ acknowledged these allegations and 

complaints, provided specific limitations to address them, and, therefore, 

appropriately evaluated Plaintiff’s symptoms. 

 Finally, although the Commissioner acknowledges Dr. Taylor’s March 6, 

2012 note regarding treatment options, including surgery (see DE 13 at 17 n.5, R. 

at 698), I note the ALJ’s unrefuted comment that “[t]he record does not indicate 

that claimant has been advised to undergo a surgical procedure for any condition, 

including for shoulder, plantar fasciitis or mitral valve disorders.” (R. at 49) 

(emphasis added). Also, I note Dr. Sandrock’s March 24, 2014 letter to Dr. Brown 

– not available to the ALJ but available to the Appeals Council - which states: 

“She will consider her options and get back in touch with this office if she desires

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to pursue surgery.” (R. at 38) (emphasis added). However, Plaintiff’s motion does 

not take issue with the ALJ’s comment about surgery, nor does it cite Dr. 

Sandrock’s letter, nor does it suggest she ever chose or underwent surgery. 

2. Plaintiff does not independently challenge the accuracy of 

the hypotheticals posed to the VE. Instead, she appears to 

challenge the ALJ’s adoption of the VE’s testimony as to the 

second hypothetical instead of adopting the VE’s testimony 

as to the first, third or fourth hypotheticals. 

Plaintiff discusses the shift in the burden of proof to the Commissioner, 

which occurs at Step 5, claiming that “each element of the [second] hypothetical 

does not accurately describe Deatrius Burks in all significant, relevant respects, the 

VE’s testimony at the hearing should not constitute substantial evidence.” (See 

DE 10 at 10; see also DE 10 at 12.) 

The second hypothetical, while not verbatim, is substantially similar to the 

phrasing of the ALJ’s Step 4 RFC determination, and it was in response to the 

second hypothetical to which the VE testified that the credit/account clerk, 

information clerk and administrative clerk positions could be performed. 

(Compare R. at 47, R. at 71.) 

In reality, Plaintiff seems to be challenging the ALJ’s assessment of her 

credibility in his Step 4 RFC determination, a point at which Plaintiff has the 

burden, rather than the hypothetical itself. As the Commissioner suggests, the 

Court interprets Plaintiff’s statements as challenging the ALJ’s failure to adopt the 

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absence or extra breaks restrictions which were the subject of Plaintiff’s counsel’s 

(third and fourth) hypotheticals to the VE. (R. at 71-72, DE 13 at 18 n.6.) 

Furthermore, to the extent Plaintiff is challenging the ALJ’s assessment of 

Plaintiff’s testimony about sitting, use of her hands, ability to walk or laying down 

when formulating the second hypothetical, the ALJ’s RFC determination contains 

the restrictions of a sit/stand option at will, and the ALJ’s Step IV determination 

discussed Dr. Karrar’s March 7, 2012 notes, which observed, in part: “Both the 

hands show no evidence of decreased range of motion, joint abnormality, 

weakness, numbness or other significant abnormal findings.” (See R. at 47-48, 70-

71.) Moreover, as noted above, the ALJ discounted Plaintiff’s testimony about 

laying down. (R. at 48, 63.) 

In essence, Plaintiff seeks to re-challenge the ALJ’s negative credibility 

determination through the back door by re-inserting subjective complaints which 

were properly discounted into a re-formed RFC, thus substituting her own version 

of the VE’s hypothetical as the operative one. However, for the reasons stated 

above, once the ALJ’s credibility determination is affirmed, as I suggest it should 

be, the ALJ’s Step 4 RFC determination - supported by the VE’s testimony in 

response to a like-phrased hypothetical - must necessarily be affirmed as well. 

3. Plaintiff does not properly challenge the ALJ’s assessment 

of records from a treating physician. 

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 Plaintiff’s pending December 5, 2014 amended motion for summary 

judgment was filed by attorney Richard Doud. (DE 10.) On January 8, 2016, this 

Court denied the April 2015 motions for substitution of counsel, which had been 

filed by attorney James Smith, and removed attorney Doud as Plaintiff’s counsel. 

(DEs 14, 15 & 20.) 

As the Commissioner acknowledges, attorney Doud’s work product has 

been called into question. (See DE 13 at 7-8, Fielder v. Comm'r of Soc. Sec., No. 

13-10325, 2014 WL 1207865, at *1 n.1 (E.D. Mich. Mar. 24, 2014) (Rosen, C.J., 

adopting report and recommendation of Majzoub, M.J.) (“nearly every Magistrate 

Judge in this District has expressed this concern with the work product of 

Plaintiff's counsel.”), see also Armstrong v. Comm'r of Soc. Sec., 95 F. Supp. 3d 

1049, 1054 (E.D. Mich. 2015) (Lawson, J., adopting in part report and 

recommendation of Majzoub, M.J.) (“Because the conduct in this case appears to 

be a pattern of activity that has emerged in several of Mr. Doud's cases in this 

district, the Court believes that the better course is to refer the matter to the Chief 

Judge to determine whether disciplinary or remedial measures should be taken.”), 

Swadling v. Comm'r of Soc. Sec., No. 14-10251, 2015 WL 1511048, at *1 (E.D. 

Mich. Mar. 24, 2015) (Berg, J., adopting report and recommendation of Majzoub, 

M.J.) (“Unfortunately, Attorney Doud has paid no attention to the Court's warning 

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to improve his work product. He continues to file motions containing the same 

kind of sub-standard advocacy that led to the criticism in the Fielder case.”). 

 Here, too, the Court expresses concern with the organization and quality of 

Plaintiff’s brief. Suffice it to say that the Court interprets Plaintiff’s brief as 

challenging only the ALJ’s assessment of Plaintiff’s credibility. (See DE 10 at 6-

12, 14-15.) Although Plaintiff’s brief makes several references to regulations and 

case law regarding treating source opinions, this section of Plaintiff’s brief does 

not contain any references to the medical record. (See DE 10 at 12-14.) This 

leaves the Court to assume Plaintiff is challenging the ALJ’s assessment of Drs. 

Karrar, Ryan, Brown and/or Taylor’s opinions, as mentioned in the credibility 

portion of Plaintiff’s brief. 

Where Plaintiff is represented by counsel, it is not the Court’s job to make 

arguments on her behalf. During October 2015, Plaintiff was given an opportunity 

to retain new counsel. (See DE 19.) Moreover, the Court’s January 8, 2016 order, 

while terminating attorneys Doud and Smith as Plaintiff’s counsel, provided 

Plaintiff with an opportunity to file an amended motion for summary judgment or 

to supplement the current motion for summary judgment (DE 20), and Plaintiff did 

not do so. Therefore, Plaintiff apparently having chosen to rely on the current 

briefing, the Court will not address any argument that the ALJ improperly assessed 

the opinions of Plaintiff’s treating physician(s). 

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G. Conclusion

 In sum, the Undersigned concludes that substantial evidence supports the 

ALJ’s decision denying benefits. Accordingly, it is RECOMMENDED that the 

Court DENY Plaintiff’s amended motion for summary judgment (DE 10), 

GRANT Defendant’s motion for summary judgment (DE 13), and AFFIRM the 

Commissioner of Social Security’s decision. 

III. PROCEDURE ON OBJECTIONS

 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 & 

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 & 

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

Teachers Local 231, 829 F.2d 1370, 1273 (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,” and “Objection No. 

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

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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); E.D. Mich. LR 

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. 

Dated: February 17, 2016 s/Anthony P. Patti 

 Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

I hereby certify that a copy of the foregoing document was sent to parties of record 

on February 17, 2016, electronically and/or by U.S. Mail. 

 s/Michael Williams 

 Case Manager for the 

 Honorable Anthony P. Patti 

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