1

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

TARIE HASSAN, 

 Plaintiff, 

v. 

COMMISSIONER OF 

SOCIAL SECURITY, 

 Defendant. 

 

Case No. 2:14-cv-14407 

Judge Robert H. Cleland 

Magistrate Judge Anthony P. Patti 

___________________________________/ 

REPORT AND RECOMMENDATION REGARDING PLAINTIFF’S 

MOTION FOR SUMMARY JUDGMENT (DE 14), PLAINTIFF’S 

AMENDED MOTION FOR SUMMARY JUDGMENT (DE 15) and 

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (DE 16) 

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

RECOMMENDED that the Court DEEM MOOT Plaintiff’s motion for summary 

judgment (DE 14), DENY Plaintiff’s amended motion for summary judgment (DE 

15), GRANT Defendant’s motion for summary judgment (DE 16), and AFFIRM 

the Commissioner’s decision. 

II. REPORT 

 Plaintiff, Tarie Hassan, brings this action under 42 U.S.C. § 405(g) for 

review of a final decision of the Commissioner of Social Security 

(“Commissioner”) denying his application for disability insurance (DI) benefits. 

This matter is before the United States Magistrate Judge for a Report and 

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Recommendation on Plaintiff’s motion for summary judgment (DE 14), Plaintiff’s 

amended motion for summary judgment (DE 15), the Commissioner’s cross 

motion for summary judgment (DE 16), Plaintiff’s reply (DE 18) and the 

administrative record (DE 12). 

A. Background

 Plaintiff filed his application for DI benefits on March 28, 2012, alleging 

that he has been disabled since April 1, 2010, at age 51. (R. at 128-131, 151-153.) 

Plaintiff alleges disability as a result of problems with his back and knees, 

numbness in his back and legs, pain in his legs due to his back, arthritis in his 

joints and depression. (R. at 154-160.) Plaintiff’s applications were denied. (R. at 

58-68, 69, 70, 71, 72-76.) 

Plaintiff sought a de novo hearing before an Administrative Law Judge 

(“ALJ”). R. at 77-78. ALJ B. Lloyd Blair held a hearing on April 30, 2013, at 

which Plaintiff was represented by counsel and Vocational Expert (VE) Melody 

Henry testified. (R. at 36-57.) On June 5, 2013, ALJ Blair determined that 

Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 18-

35.) 

Plaintiff requested review of the hearing decision. (R. at 15-17.) On 

September 17, 2014, the Appeals Council denied Plaintiff’s request for review. (R. 

at 1-5.) Thus, ALJ Blair’s decision became the Commissioner’s final decision. 

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Plaintiff then timely commenced the instant action on November 17, 2014. 

(DE 1.) 

B. Plaintiff’s Medical History 

 In this case, Plaintiff alleges that he has been disabled since April 1, 2010. 

(See R. at 128, 151.) Plaintiff’s medical records that were available to the ALJ 

span the period from February 1, 2011 to March 28, 2013. R. at 210-234 (Exhibits 

1F-8F). Following ALJ Blair’s June 5, 2013 decision, the Appeals Council was 

provided with the September 25, 2013 note of Wassim M. Younes, M.D. (R. at 7.) 

1. Orthopedic History 

Of particular import here are the records of Dr. Younes, Plaintiff’s treating 

physician. Plaintiff saw Dr. Younes on February 1, 2011 (R. at 214-215) and had 

x-rays of the lumbar spine and left knee (R. at 213). The lumbar spine x-ray 

revealed “mild degenerative changes especially upper portion, otherwise negative.” 

(R. at 213.) Plaintiff again saw Dr. Younes on February 28, 2011. (R. at 210-211) 

A right knee x-ray on the same date revealed “suggestion of minimal narrowing of 

joint space in the medial compartment. The right knee as visualized otherwise 

appears intact.” (R. at 212). 

More than one year later, on March 29, 2012, Plaintiff saw Dr. Younes (R. at 

216-217) and lab tests were performed (R. at 218-219). Among other things, Dr. 

Younes assessed generalized osteoarthorsis involving multiple sites. (R. at 216.) 

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Nearly one year following that diagnosis, on March 28, 2013, Dr. Younes 

performed a physical capacities evaluation, concluding that Plaintiff would be 

unable to work on a regular sustained basis for 1-2 days per week. (R. at 232-234.) 

On September 25, 2013 – a record which post-dates the ALJ’s hearing but 

was available to the Appeals Council – Dr. Younes noted that Plaintiff has multiple 

joint osteoarthrosis (Code 715.09) and chronic pain (Code 338.4) which “has 

impaired and continues to impair his ability to work with a permanent disability[.]” 

(R. at 7.) 

2. Psychiatric History 

On May 25, 2012, Plaintiff was seen at the Jefferson Medical Industrial 

Clinic for an adult mental status evaluation by John Jeter, M.A., L.L.P., L.M.S.W. 

and Hugh Bray, Ph.D., L.P., who addressed their findings to the State of Michigan 

Department of Human Services Disability Determination Service for Social 

Security Claims. The diagnostic analysis included adjustment disorder with 

depressed mood and a Global Assessment of Functioning (GAF) score of 58. (See

R. at 224-227.) Later that year, on September 13, 2012, Plaintiff underwent a 

psychiatric evaluation by Madhu Mendiratta, M.D. at Northwestern Psychiatric & 

Counseling Center and was diagnosed with major depressive affective disorder 

(Code 296.32). Dr. Mendiratta prescribed Celexa and Ativan. (R. at 228-231.) 

 C. Hearing Testimony (April 30, 2013) 

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 1. Plaintiff’s Testimony 

 Plaintiff Tarie Hassan testified at the April 30, 2013 hearing. (R. at 40-52.) 

At that time, he was 54 years old, 5’10” tall and 220 pounds. He is right-handed 

and completed 2 years in college. He has a driver’s license but does not drive. (R. 

at 41.) He does not smoke. He is separated and lives in a multi-story home with 

his daughter. (R. at 47.) His daughter does the cleaning, and his son does the yard 

work. (R. at 49.) 

Plaintiff testified that he gets out of bed around 10 a.m. or 11 a.m. and 

usually goes to bed at 8 p.m. or 10 p.m. (R. at 48.) He experiences difficulties or 

pain bathing and getting dressed. (R. at 50.) During the day, he mostly lies down, 

trying to avoid pain, as lying down is his most comfortable position. (R. at 48, 50.) 

He watches television, but cannot concentrate long enough to watch an hour long 

show and understand it. (R. at 50.) It is very difficult to climb stairs, and it hurts a 

lot to bend over to pick something off of the floor. (R. at 48.) He can stand around 

5 to 10 minutes before having to sit down, can sit for about half an hour before 

having to get up, and can walk about half a block before having to stop. (R. at 49.) 

Plaintiff testified that he has very severe arthritis, as well as constant lower 

back pain, and problems with his knees, elbows and sometimes fingers. (R. at 42, 

42-45, 51.) He also testified about psychiatric treatment. (R. at 46, 50.) He only 

went to therapy once, because he ran out of money and could not afford it. He 

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does not have insurance and has not had insurance since he stopped working. (R. 

at 51.) 

 2. Vocational Expert Testimony

 VE Melody Henry also testified. (R. at 52-56.) Ms. Henry was asked to 

assume a hypothetical individual who: can meet the demands of light work but 

should never use ladders, scaffolds, or ropes; can frequently, but not constantly 

handle and finger; should only occasionally bend, twist, or turn at the waist; should 

do no foot pedal usage; should only have simple, skilled work with a specific 

vocational preparation (SVP) of 1 or 2; should only perform work involved with 

just one, two, three step instructions; should not have a job involving concentration 

on detail or precision tasks, multitasking, reading, computing, calculating, or 

problem solving; and should have work requiring only brief or superficial contact 

with the general public. She testified that such an individual could not perform 

Plaintiff’s past relevant work. (R. at 53.) However, Ms. Henry further testified 

that such a hypothetical person with Plaintiff’s profile could perform light and 

unskilled work such as an office machine operator, a mail clerk or a record’s clerk. 

(R. at 53-54.) 

 Upon examination by Plaintiff’s counsel, the VE testified that being off-task 

at least 15 percent of the time, or being unable to be at work or be on time for work 

at least two times a month, would preclude all work. (R. at 54-55.) The VE 

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further testified that if Plaintiff was restricted to lifting less than 10 pounds, it 

would preclude the mail clerk and records clerk jobs. (R. at 55.) Moreover, if 

Plaintiff was not able to walk and stand more than an hour or two per day, it would 

preclude the office machine operator and mail clerk jobs. (R. at 55-56.) 

 D. The Administrative Decision1

 ALJ Blair rendered his decision on June 5, 2013. (R. at 18-35.) At Step 1, 

the ALJ found that Plaintiff has not engaged in substantial gainful activity since 

April 1, 2010, the alleged onset date. (R. at 23.) 

 

1 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 severe impairments of low 

back pain, knee pain, elbow and finger pain, and adjustment disorder with 

depressed mood. (R. at 23.) 

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 23-25.) 

At Step 4, the ALJ concluded that Plaintiff has the residual functional 

capacity (RFC) to: perform light work, except that he can never use ladders, 

scaffolds, or ropes; can frequently but not constantly handle and finger; can only 

occasionally bend, twist, and turn at the waist; no foot pedal usage; requires simple 

unskilled work with an SVP rating of 1 or 2; work involving one, two, or three-step 

instructions; no jobs involving concentration on detailed or precision tasks or 

multi-tasking, reading, computing/calculating, or problem solving; and work 

requiring only brief and superficial contact with the public. (R. at 25-29.) 

Furthermore, the ALJ concluded that Plaintiff is unable to perform any past 

relevant work. (R. at 29.) 

At Step 5, considering Plaintiff’s age, education, work experience and RFC, 

the ALJ determined that there are jobs that exist in significant numbers in the 

national economy that Plaintiff can perform. (R. at 29-30.) 

 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 his amended motion for summary judgment, as well as his reply to 

Defendant’s dispositive motion, Plaintiff sets forth four (4) statements of error: 

I. The ALJ failed to comply with controlling Sixth Circuit caselaw in 

essentially rejecting the opinion of Dr. Younes, Mr. Hassan’s treating 

physician, without considering the regulatory factors as required and 

without adequate explanation. 

II. The ALJ failed to comply with controlling law in evaluating Mr. Hassan’s 

subjective complaints and credibility. 

III. The Commissioner failed to sustain her burden of establishing that there is 

other work in the national economy that Mr. Hassan could perform because 

the vocational expert’s testimony conflicts with the Dictionary of 

Occupational Titles and because the ALJ relied on the VE’s response to a 

hypothetical question which failed to include all of the limitations 

supported by the record. 

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IV. The ALJ committed reversible error in failing to address Mr. Hassan’s 

“borderline age” in his decision as required. 

(DE 15 at 1, 7-23.) 

 

The Commissioner opposes Plaintiff’s motion, asserting that: (a) substantial 

evidence supports the ALJ’s RFC determination, (b) substantial evidence supports 

the ALJ’s finding that Plaintiff could perform other work at Step 5, and (c) 

substantial evidence supports the ALJ’s decision to apply Plaintiff’s chronological 

age category under the circumstances of this case. (DE 16 at 3, 6-19.) 

Plaintiff has filed a reply. (DE 18.) The Undersigned will address each of 

the parties’ arguments in turn. 

1. Substantial Evidence Supports the ALJ’s Weighing of 

Opinion Evidence. 

The ALJ must consider all medical opinions that he or she receives in 

evaluating a claimant’s case. 20 C.F.R. § 416.927(d). The regulations define 

medical opinions as “statements from physicians . . . that reflect judgments about 

the nature and severity of your impairment(s), including your symptoms, diagnosis 

and prognosis, what you can still do despite impairment(s), and your physical or 

mental restrictions.” 20 C.F.R. § 416.927(a)(2). “Administrative law judges are 

not bound by any findings made by State agency medical or psychological 

consultants, or other program physicians or psychologists.” 20 CFR § 

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404.1527(e)(2)(i). The ALJ must, however, “consider findings and other opinions” 

of State Agency medical or psychological consultants. 

The ALJ generally gives deference to the opinions of a treating source 

“since these are likely to be the medical professionals most able to provide a 

detailed, longitudinal picture of [a patient’s] medical impairment(s) and may bring 

a unique perspective to the medical evidence that cannot be obtained from the 

objective medical findings alone . . . .” 20 C.F.R. § 416.927(d)(2); Blakley v. 

Comm’r of Soc. Sec., 581 F.3d 399, 408 (6th Cir. 2009). To qualify as a treating 

source, the physician must have an “ongoing treatment relationship” with the 

claimant. 20 C.F.R. § 404.1502. 

If the ALJ does not afford controlling weight to a treating physician’s 

opinion, the ALJ must meet certain procedural requirements. Wilson v. Comm’r of 

Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). 2 Specifically, if an ALJ does not 

give a treating source’s opinion controlling weight: 

 

2 An exception exists for treating source opinions on issues that are reserved to the 

Commissioner, which “are never entitled to controlling weight or special 

significance.” S.S.R. 96-5p, 61 FR 34471-0, at *34473. Examples of issues 

reserved to the Commissioner include: 

1. Whether an individual’s impairment(s) meets or is equivalent in 

severity to the requirements of any impairment(s) in the listings; 

2. What an individual’s RFC is; 

3. Whether an individual’s RFC prevents him or her from doing past 

relevant work; 

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[A]n ALJ must apply certain factors—namely, the length of the 

treatment relationship and the frequency of examination, the nature 

and extent of the treatment relationship, supportability of the opinion, 

consistency of the opinion with the record as a whole, and the 

specialization of the treating source—in determining what weight to 

give the opinion. 

Id.

Furthermore, an ALJ must “always give good reasons in [the ALJ’s] notice 

of determination or decision for the weight [the ALJ] give[s] your treating source’s 

opinion.” 20 C.F.R. § 416.927(d)(2). Accordingly, the ALJ’s reasoning “must be 

sufficiently specific to make clear to any subsequent reviewers the weight the 

adjudicator gave to the treating source’s medical opinion and the reasons for that 

weight.” Friend v. Comm’r of Soc. Sec., No. 09-3889, 2010 WL 1725066, at *7 

(6th Cir. 2010) (internal quotation omitted). The United States Court of Appeals 

for the Sixth Circuit has stressed the importance of the good-reason requirement: 

“The requirement of reason-giving exists, in part, to let claimants 

understand the disposition of their cases,” particularly in situations 

where a claimant knows that his physician has deemed him disabled 

and therefore “might be especially bewildered when told by an 

administrative bureaucracy that she is not, unless some reason for the 

agency’s decision is supplied.” Snell v. Apfel, 177 F.3d 128, 134 (2d 

Cir.1999). The requirement also ensures that the ALJ applies the 

treating physician rule and permits meaningful review of the ALJ’s 

 

4. How the vocational factors of age, education, and work experience 

apply; and 

5. Whether an individual is “disabled” under the Act. 

Id. 

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application of the rule. See Halloran v. Barnhart, 362 F.3d 28, 32–33 

(2d Cir. 2004). 

Wilson, 378 F.3d at 544–45. Thus, the reason-giving requirement is “particularly 

important when the treating physician has diagnosed the claimant as disabled.” 

Germany-Johnson v. Comm’r of Soc. Sec., 312 F. A’ppx 771, 777 (6th Cir. 2008) 

(citing Rogers, 486 F.3d at 242). 

At Step 4, ALJ Blair expressly considered and weighed opinion evidence. 

In so doing, he assigned no more than modest weight to Dr. Younes’s March 29, 

2012 and March 28, 2013 opinions (R. at 217, 232-234) and limited weight to the 

May 25, 2012 opinion of Jeter and Bray; however, he assigned significant weight 

to their assigned GAF score of the same date (R. at 226-227) and significant 

weight to the May 7, 2012 opinion of Muhammad Khalid, M.D. (R. at 65-66). 

(See R. at 28-29.) Ultimately, the ALJ concluded that Plaintiff has the residual 

functional capacity (RFC) to: 

perform light work . . . except that he can never use ladders, scaffolds, 

or ropes; can frequently but not constantly handle and finger; can only 

occasionally bend, twist, and turn at the waist; no foot pedal usage; 

requires simple unskilled work with an SVP rating of 1 or 2; work 

involving one-, two-, or three-step instructions; no jobs involving 

concentration on detailed or precision tasks or multi-tasking, reading, 

computing/calculating, or problem solving; and work requiring only 

brief and superficial contact with the public. 

(R. at 25-29.) 

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In the motion at bar, Plaintiff contends that the ALJ improperly rejected the 

opinion of treating physician Dr. Younes by not considering the regulatory factors 

as required, and by not providing adequate explanation. (DE 15 at 7-12.) 

Specifically, Plaintiff points to Dr. Younes’s March 28, 2013 Physical Capacities 

Evaluation. (R. at 232-234.) Here, Dr. Younes opined that: (1) Plaintiff can sit 

for 5 hours in an 8 hour workday and can stand and/or walk for 5 hours in an 8 

hour workday; (2) Plaintiff’s spinal impairment, knee stiffness/cramping, pain, 

knee swelling and knee pain interfere with Plaintiff’s ability to sit; and (3) Plaintiff 

can frequently lift up to 5 pounds and occasionally lift from 6 to 10 pounds. (R. at 

232.) Dr. Younes further opined that Plaintiff could not use his feet for repetitive 

movements as in pushing and pulling of leg controls. Further, assuming Plaintiff 

returned to repetitive work activity allowing for a sit-stand opinion, he would 

minimally require one 20 minute rest period per hour, in addition to a 30 minute 

lunch. (R. at 233.) Finally, Dr. Younes opined that Plaintiff would be unable to 

work on a regular, sustained basis 1-2 days per week. (R. at 234.) 

Plaintiff argues that the limitations set by Dr. Younes would preclude 

Plaintiff from performing light work. (DE 15 at 7; see also, DE 15 at 11.) 

However, the Court should conclude that the ALJ did provide “good reasons” for 

rejecting the lifting, sitting, standing and walking limitations assessed by Dr. 

Younes: 

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a. Lifting 

As Plaintiff points out, Dr. Younes’s March 29, 2012 notes place a 

“restriction on lifting [weight] more than ten pounds due to exacerbation of 

symptoms[,]” and the March 28, 2013 notes indicate Plaintiff can frequently lift up 

to 5 pounds and occasionally lift from 6-10 pounds. (DE 15 at 7, 11, 217, 232-

234.) Yet, the ALJ’s RFC assessment includes the limitation of “light work,” 

which involves “. . . lifting no more than 20 pounds at a time with frequent lifting 

or carrying of objects weighing up to 10 pounds.” 20 CFR § 404.1567(b), 20 

C.F.R. § 416.967(b). (R. at 25.)3

 

At Step 4, the ALJ acknowledged both the March 29, 2012 and March 28, 

2013 assessments by Dr. Younes. (R. at 28.) Among other things, ALJ Blair 

stated: 

First, Dr. Younes has only seen the claimant three times[4

] over the 

last three years. Thus, he has not enjoyed the frequency and contact 

 

3 “Light work” involves: “. . . lifting no more than 20 pounds at a time with 

frequent lifting or carrying of objects weighing up to 10 pounds. Even though the 

weight lifted may be very little, a job is in this category when it requires a good 

deal of walking or standing, or when it involves sitting most of the time with some 

pushing and pulling of arm or leg controls. To be considered capable of 

performing a full or wide range of light work, you must have the ability to do 

substantially all of these activities. If someone can do light work, we determine 

that he or she can also do sedentary work, unless there are additional limiting 

factors such as loss of fine dexterity or inability to sit for long periods of time.” 20 

CFR § 404.1567(b), 20 C.F.R. § 416.967(b) (emphasis added). 

4 In referencing three visits, the ALJ presumably considered progress notes dated 

February 1, 2011 (R. at 214-215), February 28, 2011 (R. at 210-211) and March 

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of duration with the claimant that would allow him to make an 

accurate assessment of the claimant’s functional abilities.[5

] 

 

Secondly, several of his opinions are not well supported by the 

objective evidence. There is no compelling evidence showing that the 

claimant cannot lift more than 10 pounds . . . . there are no limitations 

on pushing or pulling (other than the weight limitations inherent in 

light work) given the lack of findings of diminished strength and the 

limited abnormal findings on x-ray images.[6

] 

 

(R. at 28.) Thus, when assigning Dr. Younes’s opinions no more than modest 

weight, the ALJ considered the examining relationship, treatment relationship and 

supportability factors. See 20 C.F.R. §§ 404.1527 and 416.927 (“Evaluating 

opinion evidence.”). 

Instead, the ALJ assigned significant weight to the May 8, 2012 physical 

RFC assessment of Muhammad Khalid, M.D. - who rated Plaintiff’s postural 

limitations as “occasionally,” and assessed Plaintiff for a light RFC finding - on the 

basis that Dr. Khalid’s assessment was generally supported by the objective 

evidence, such as the knee and lumbar spine x-rays and the physical examination 

findings (presumably Dr. Younes’s March 29, 2012 progress notes), upon which 

Dr. Khalid relied. (See R. at 27, 29, 65-66, 212-213, 216-217.). Although not 

 

29, 2012 (R. at 216-217) but not the “physical capacities evaluation” dated March 

28, 2013 (R. at 232-234).

5 As Plaintiff suggests in reply, this is a period of two years. (DE 18 at 3.) 

6 Here, the Court suspects the ALJ was referring to Dr. Younes’s February 28, 2011 

and March 29, 2012 musculoskeletal examinations and the February 2011 x-rays. 

(See R. at 210, 212-213, 216.) 

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expressly cited by the ALJ, Dr. Khalid also opined that Plaintiff can occasionally 

lift and/or carry 20 pounds and frequently lift and/or carry 10 pounds – limitations 

which are consistent with the definition of “light work.” 20 CFR § 404.1567(b), 

20 C.F.R. § 416.967(b). (R. at 65-66.) 

b. Sitting, Standing and/or Walking 

Dr. Younes’s February 1, 2011, February 28, 2011 notes, and March 29, 

2012 notes each mention some type of decreased range of motion, with respect to 

either the lumbar spine, knees, or rotation. (R. at 214, 210 and 216.) Plaintiff 

argues that Dr. Younes’s limited knee range of motion finding “also supports a 

finding that he is limited to standing and walking and being on his feet for [no] 

more than five hours during an 8-hour workday.” (DE 15 at 11.) 

To be sure, Dr. Younes’s February 28, 2011 notes indicate that Plaintiff was 

unable to perform chores and activities of daily living and has significant pain, and 

Plaintiff’s musculoskeletal examination revealed decreased range of motion in the 

lumbar spine, paraspinal muscle tenderness, crepitus in both knees, and low back 

pain with straight leg raising. (R. at 210.) Also, on March 28, 2012, Social 

Security Interviewer K. Makki observed that Plaintiff: “seemed very quiet and 

reserved. He walked slow and somewhat with a limp. Had to shift and adjust his 

seated position due to his back pain, had to stand up seve[r]al times during 

interview. He had to use counter for support to stand up due to his knees and 

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back[.]” (R. at 151-153) Furthermore, the opening paragraph of the May 25, 2012 

Jeter/Bray adult mental status evaluation states: “The claimant’s gait is slow and 

awkward. He leans on items for support.” (R. at 224-227.) 

However, in addition to the aforementioned reports of decreased range of 

motion, the ALJ also relied upon Dr. Mendiratta’s September 13, 2012 mental 

status examination, in which she observed that Plaintiff’s posture was 

unremarkable and his gait was normal. (R. at 27, 230.). Furthermore, the ALJ 

noted that “the objective findings on imaging studies have been out of proportion 

to his alleged pain.” (R. at 27.) For example, the February 28, 2011 right knee xray suggested “minimal narrowing of joint space in the medial compartment[,]” the 

February 1, 2011 the lumbar spine x-ray revealed “mild degenerative changes 

especially upper portion,” and the February 1, 2011 left knee x-ray was negative. 

(R. at 212-213.) (emphasis added). 

c. Regulatory factors 

Plaintiff alleges that the ALJ failed to consider the regulatory factors 

required by 20 C.F.R. §§ 404.1527 and 416.927 (“Evaluating opinion evidence.”). 

(DE 15 at 12.) These factors include examining relationship, treatment 

relationship, supportability, consistency, specialization and other factors. See 20 

C.F.R. §§ 404.1527(c) and 416.927(c). 

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20

To be sure, Plaintiff contends that Dr. Younes’s three visits “certainly placed 

him in a better position to evaluate Mr. Hassan than the State Agency nonexamining medical consultant, who never saw him at all, and upon whose opinion 

the ALJ substantially relied in assessing Mr. Hassan’s RFC.” (DE 15 at 10.) 

However, with regard to the factor “length of the treatment relationship and the 

frequency of examination,” the regulations counsel: “Generally, the longer a 

treating source has treated you and the more times you have been seen by a 

treating source, the more weight we will give to the source's medical opinion. 

When the treating source has seen you a number of times and long enough to have 

obtained a longitudinal picture of your impairment, we will give the source's 

opinion more weight than we would give it if it were from a nontreating source.” 

20 C.F.R. §§ 404.1527(c)(2)(i), 416.927(c)(2)(i) (emphasis added). Thus, it is 

permissible for the ALJ to observe that “in over three years, [Plaintiff] has had 

treatment on only three occasions with his primary care physician.” (R. at 27.) 

Moreover, citing the February 1, 2011, February 28, 2011 and March 29, 2012 

notes, the ALJ stated: “Dr. Younes simply offered prescriptions for pain 

medications Celebrex and Tylenol #3 as well as Valium[.]” (R. at 27, 210-214, 

216-217.) This is further evidence that the ALJ considered the factor of treatment 

relationship. Also, the ALJ accurately stated that “several of his opinions are not 

well supported by the objective evidence.” At the same time, the ALJ specifically 

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21

referred to Dr. Younes’s findings of limited range of motion of the knees when 

restricting Plaintiff’s RFC “against the usage of foot pedals.” (R. at 28.) Thus, the 

ALJ gave credit to Dr. Younes’s findings where he found them consistent and 

supportable. 

The ALJ did consider some of the factors. Moreover, “[a]lthough the 

regulations instruct an ALJ to consider these factors, they expressly require only 

that the ALJ's decision include ‘good reasons ... for the weight ... give[n] [to the] 

treating source's opinion’—not an exhaustive factor-by-factor analysis. Id. § 

404.1527(d)(2).” Francis v. Commissioner of Social Security, 414 F.App’x 802, 

804 (6th Cir. 2011). As outlined above, the ALJ provided good reasons for 

rejecting the lifting, sitting, standing and walking limitations imposed by Dr. 

Younes. As such, any omission by the ALJ of express discussion of one of these 

factors is not, alone, reversible error. Furthermore,, the ALJ is not required to 

adopt Dr. Younes’s March 28, 2013 opinion that Plaintiff would be unable to work 

on a regular sustained basis 1-2 days per week (see R. at 232-234). “[T]o require 

the ALJ to base her RFC finding on a physician’s opinion, ‘would, in effect, confer 

upon the treating source the authority to make the determination or decision about 

whether an individual is under a disability, and thus would be an abdication of the 

Commissioner’s statutory responsibility to determine whether an individual is 

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22

disabled.’” Rudd, 531 F.App’x at 728 (quoting SSR 96-5p, 1996 WL 374183 (July 

2, 1996)). 

2. Any failure to fully comply with SSR 96-7p was harmless. 

Dr. Younes’s February 28, 2011 progress notes reflect that Plaintiff has 

ongoing severe lower back pain, bilateral knee pain, is unable to do his chores and 

activities of daily living, and experiences significant pain. (R. at 210.) Also, Dr. 

Younes’s March 28, 2013 evaluation reflects that Plaintiff’s pain interferes with 

his ability to sit. (R. at 232). Furthermore, at the April 30, 2013 hearing, Plaintiff 

testified about his pain and stated that his most comfortable position is lying down. 

(R. at 50.) 

At Step 4, after expressly discussion Plaintiff’s disability report and 

Plaintiff’s hearing testimony, the ALJ did not consider Plaintiff’s allegations fully 

credible, because “they are not well supported by the treatment history.” (R. at 26-

27, 154-160, 18-35.) Specifically: 

 noting the lack of medical records for the approximate 10 

month period between the April 1, 2010 date of onset and the 

February 1, 2011 visit with Dr. Younes, the ALJ remarked, 

“[t]he delay in seeking treatment tends to suggest that his 

impairments were not so bothersome as to preclude work 

activity;” 

 referencing the February 1, 2011, February 28, 2011 and March 

29, 2012 visits with Dr. Younes, the ALJ observed: “in over 

three years, he has had treatment on only three occasions with 

his primary care physician[,]” with resulting prescriptions 

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including Celebrex, Tylenol/Codeine #3, and Valium. (R. at 

210, 214, 216-217);7

 

 observing that Plaintiff has not had evaluations or care with 

specialists, such as neurologists or orthopedists, and, 

presumably referring to Dr. Mendiratta’s September 13, 2012 

psychiatric evaluation, noting that Plaintiff “has had only one 

treatment encounter with a psychiatrist[.]” (R. at 228-231); 

and, 

 observing that Plaintiff “has not had any urgent care or 

emergency room encounters for his purportedly severe 

symptoms.” 

 

(R. at 27.) Overall, the ALJ permissibly noted that, “the lack of consistent, 

ongoing treatment coupled with the conservative nature of his treatment (versus 

specialized or urgent medical intervention) suggests that the claimant’s symptoms 

and related limitations are not as severe as alleged.” (R. at 27.) 

Here, Plaintiff asserts that the ALJ did not comply with SSR 96-7p 

(“Assessing The Credibility Of An Individual's Statements”) (July 2, 1996). (DE 

15 at 10.) In pertinent part, this regulation provides that, “the adjudicator 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 

 

7 I also note that, on March 29, 2012, Dr. Younes prescribed Restoril for insomnia. 

(R. at 217.) 

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24

medical treatment.” Id. For example, “[t]he individual may be unable to afford 

treatment and may not have access to free or low-cost medical services.” Id. 

The administrative record offers a possible explanation for the dearth of 

medical records. Plaintiff testified that he went to physical therapy once for his 

lower back, but it was expensive and he could not go again. (R. at 42.) When 

asked why he only once went to psychiatric / psychological therapy, he explained 

that he ran out of money and could not afford it. He further testified that he did not 

have any insurance and has not had any insurance since he stopped working. (R. at 

50-51.) In addition, Dr. Younes’s February 28, 2011 notes indicate he wrote off 

the visit, because Plaintiff could not pay. (R. at 210.) Likewise, Dr. Younes’s 

March 29, 2012 notes indicate that Plaintiff had not done physical therapy, because 

he has not had insurance. (R. at 216.) Stated otherwise, Plaintiff “declines PT at 

this time due to financial reasons.” (R. at 217.) 

It is Plaintiff’s position that the ALJ “failed to comply with SSR 96-7p by 

not inquiring of this issue during the [April 30, 2013] hearing as required, prior to 

using the failure to obtain treatment as a basis to discredit Mr. Hassan’s testimony 

[in the June 5, 2013 decision].” (DE 15 at 13.) Furthermore, based upon 

Plaintiff’s April 30, 2013 testimony that he sees psychiatrist Madhu Mendiratta, 

M.D. every month, and apparently referring to the fact that only Dr. Mendiratta’s 

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25

September 13, 2012 psychiatric evaluation is part of the administrative record, 

Plaintiff suspects that the record is incomplete. (R. at 46, 228-231; DE 15 at 13.) 

However, even if the ten-month gap in treatment and the limited amount of 

visits to Dr. Younes or other physicians was due to Plaintiff’s lack of insurance or 

indigency, “it does not alter the fact that the doctor was not privy to the more 

thorough longitudinal information and data that a more significant relationship 

would yield.” (DE 16 at 11.) As the Commissioner notes, “any error is harmless 

since the ALJ also relied on the available objective evidence and medical opinions 

. . . .” (DE 16 at 13; see also, Ulman v. Commissioner of Social Security, 693 F.3d 

709, 714 (6th Cir. 2012) (“‘[s]o long as there remains substantial evidence 

supporting the ALJ's conclusions on credibility and the error does not negate the 

validity of the ALJ's ultimate credibility conclusion, such is deemed harmless and 

does not warrant reversal.’”) (quoting Carmickle v. Commissioner of Social 

Security, 533 F.3d 1155, 1162 (9th Cir. 2008)). Here, the discrepancies between 

Plaintiff’s assertions and the objective medical evidence, and between Dr. 

Younes’s assessment and the objective medical evidence, all provide adequate 

bases for discounting their respective testimony and opinion. I agree that, even if 

Plaintiff failed to seek additional treatment for financial reasons, the ALJ was still 

well within his authority to find a lack of substantial evidence for the conclusion 

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26

which Plaintiff urges here. The ALJ’s conclusions are supported by substantial 

evidence, and, thus, the standard of review requires affirmance on this issue. 

3. The Commissioner did not fail to establish that there is 

other work in the national economy that Plaintiff could 

perform. 

a. The VE’s testimony does not conflict with the 

Dictionary of Occupational Titles (DOT). 

 The ALJ’s Step 4 RFC finding contained the limitation, “no jobs involving 

concentration on detailed or precision tasks or multi-tasking, reading, 

computing/calculating, or problem solving[.]” (R. at 25-26.) (emphasis added). 

Plaintiff argues that the VE’s testimony is not consistent with the DOT, because 

“the VE’s testimony that an individual who cannot read and is limited to jobs not 

involving detail or precision tasks is inconsistent with the DOT’s description of the 

jobs of office machine operator, mail clerk, and records clerk.” (DE 15 at 15.) 

By way of background, the DOT provides that the photocopying-machine 

operator job (DICOT 207.685-014) involves Level 1 reading, while the mail clerk 

job (DICOT 209.687-026) and router job (DICOT 222.587-038) involve Level 2 

reading. (DE 15-1 at 1, DE 15-2 at 2, DE 15-3 at 1.) Moreover, the mail clerk job 

involves “[a]ttaining precise set limits, TOLERANCES, and standards[.]” (DE 15-

2 at 3.) 

Here, Plaintiff refers to SSR 00-4p (“Use Of Vocational Expert And 

Vocational Specialist Evidence, And Other Reliable Occupational Information In 

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27

Disability Decisions”), which, in part, provides: “When vocational evidence 

provided by a VE or VS is not consistent with information in the DOT, the 

adjudicator must resolve this conflict before relying on the VE or VS evidence to 

support a determination or decision that the individual is or is not disabled. The 

adjudicator will explain in the determination or decision how he or she resolved the 

conflict. The adjudicator must explain the resolution of the conflict irrespective of 

how the conflict was identified.” (DE 15 at 15-16.) 

However, I agree with the Commissioner that “the ALJ’s RFC determination 

cannot be sensibly interpreted as stating that Plaintiff is completely unable to 

read.” (DE 16 at 16.) The limitation at issue states, “no jobs involving 

concentration on detailed or precision tasks or multi-tasking, reading, 

computing/calculating, or problem solving[.]” (R. at 26 (emphases added).) It 

seems to the Court that the word “concentration” modifies everything which 

follows it. Thus, it appears that the ALJ intended to limit Plaintiff from jobs which 

“concentrate” on reading, not all those which “require some level” of it, regardless 

of how minuscule. (R. at 25-26.) This interpretation is buttressed by the fact that 

the only mention of reading in the ALJ’s decision is in the two descriptions of the 

RFC. (See R. at 26, 28.) 

This interpretation is also buttressed by the ALJ’s finding that Plaintiff has 

at least a high school education. (R. at 29.) “High school education and above 

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28

means abilities in reasoning, arithmetic, and language skills acquired through 

formal schooling at a 12th grade level or above. We generally consider that 

someone with these educational abilities can do semi-skilled through skilled 

work.” 20 C.F.R. §§ 404.1564(b)(4), 416.964(b)(4). Moreover, the Plaintiff 

testified that he completed a two year college (R. at 41), and the May 25, 2012 

adult mental status evaluation states, “The claimant graduated from the 12th grade 

in Lebanon in regular education. He attended college in Cleveland for three 

years.” (R. at 225.) Thus, there is substantial evidence that the ALJ did not find 

that Plaintiff was completely unable to read. 

b. The ALJ’s hypothetical to the VE included all of the 

limitations supported by the record. 

 Plaintiff claims that the ALJ’s hypothetical question to the VE did not 

accurately portray: Plaintiff’s limitations, specifically Dr. Younes’s limitations 

(standing, walking, lifting, resting, likely missing work one to two days per week); 

Plaintiff’s social/mental limitations (moderate difficulties in social functioning, 

unskilled work with limited social interactions); and, Plaintiff’s credibility 

testimony. (DE 15 at 14, 16-18.) 

Plaintiff’s RFC is “the most [he or she] can still do despite the physical and 

mental limitations resulting from [his or] her impairments.” Poe v. Comm’r of Soc. 

Sec., 342 F. App’x 149, 155 (6th Cir. 2009); see also 20 C.F.R. §§ 404.1545(a), 

416.945(a). The determination of Plaintiff’s RFC is an issue reserved to the 

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Commissioner and must be supported by substantial evidence. 20 C.F.R. §§ 

404.1527(3), 416.927(e). ‘“ALJs must not succumb to the temptation to play 

doctor and make their own independent medical findings.’” Simpson v. Comm’r of 

Soc. Sec., 344 F. App’x 181, 194 (6th Cir. 2009) (quoting Rohan v. Chater, 98 

F.3d 966, 970 (7th Cir. 1996)). 

Pursuant to Social Security Rule 96-8p, the RFC assessment must include: 

[A] narrative discussion describing how the evidence supports each 

conclusion, citing specific medical facts (e.g., laboratory findings) and 

nonmedical evidence (e.g., daily activities, observations). In 

assessing RFC, the adjudicator must discuss the individual’s ability to 

perform sustained work activities in an ordinary work setting on a 

regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or 

an equivalent work schedule), and describe the maximum amount of 

each work-related activity the individual can perform based on the 

evidence available in the case record. The adjudicator must also 

explain how any material inconsistencies or ambiguities in the 

evidence in the case record were considered and resolved.

S.S.R. 96-8p, 1996 WL 374184, at *6-7 (July 2, 1996) (emphasis added). 

The Court should conclude that Plaintiff has not demonstrated that the ALJ 

omitted any significant physical or mental limitations from the residual functional 

capacity (RFC) finding. To the extent Plaintiff here contests the ALJ’s failure to 

include Dr. Younes’s functional limitations as to standing, walking, lifting, resting 

and likelihood of missing work one to two days per week (DE 15 at 16), this report 

has earlier recommended a finding that the ALJ did provide “good reasons” for 

rejecting the lifting, sitting, standing and walking limitations assessed by Dr. 

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30

Younes. Accordingly, the ALJ was permitted to refrain from adopting the VE’s 

answers to Plaintiff’s counsel’s lifting, walking and/or standing hypotheticals. (R. 

at 55-56.) 

Likewise, to the extent Plaintiff here contests the ALJ’s failure to include his 

pain and fatigue limitations (DE 15 at 18), this report has elsewhere recommended 

that the ALJ properly discounted Plaintiff’s credibility. The ALJ did not have to 

adopt the VE’s answer to Plaintiff’s counsel’s off-task, punctuality and/or 

absenteeism hypotheticals. (R. at 54-55.) 

Finally, to the extent Plaintiff contests the ALJ’s failure to include his 

alleged social/mental limitations, the non-exertional limitations in the RFC are 

supported by substantial evidence. As noted earlier, ALJ Blair’s Step 4 RFC 

determination included limitations for “simple unskilled work with an SVP rating 

of 1 or 2; work involving one-, two-, or three-step instructions; no jobs involving 

concentration on detailed or precision tasks or multi-tasking, reading, 

computing/calculating, or problem solving; and work requiring only brief and 

superficial contact with the public.” R. at 25-26. In arriving at his RFC 

determination, the ALJ considered several records, such as: 

 the May 25, 2012 Adult Mental Status Evaluation by 

Jeter/Bray, which notes that Plaintiff was cooperative and had 

good eye contact (R. at 225) and “has no difficulty 

comprehending simple directions[,]” (R. at 226) 

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 the September 13, 2012 Psychiatric Evaluation by Mendiratta 

(R. at 228-231), which documents normal progression, 

language and perception, appropriate attire, unremarkable facial 

expression and “immediate” memory (R. at 230) 

 Plaintiff’s April 19, 2012 Function Report, which notes he gets 

along with authority figures “very well” (R. at 178) 

 

See R. at 24, 27-29. 

Moreover, although not expressly cited in the ALJ’s decision, the record 

includes the June 14, 2012 determination by Dr. Zahra Khademian, M.D., that 

Plaintiff had non-severe affective disorders. (R. at 62-63.). See Kornecky v. 

Commissioner of Social Security, 167 F.App’x 496, 507-508 (6th Cir. 2006) 

(“While it might be ideal for an ALJ to articulate his reasons for crediting or 

discrediting each medical opinion, it is well settled that: ‘[a]n ALJ can consider all 

the evidence without directly addressing in his written decision every piece of 

evidence submitted by a party. Nor must an ALJ make explicit credibility findings 

as to each bit of conflicting testimony, so long as his factual findings as a whole 

show that he implicitly resolved such conflicts.’”) (quoting Loral Defense 

Systems–Akron v. N.L.R.B., 200 F.3d 436, 453 (6th Cir.1999)). 

Furthermore, the ALJ specifically noted the consultative psychological 

examiners’ May 25, 2012 evaluation that Plaintiff’s GAF score was 58. (R. at 29, 

227.) GAF scores in the mid-50s are consistent with a conclusion that Plaintiff has 

the mental capacity to hold at least some jobs. Smith v. Commissioner of Social 

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32

Sec., 482 F.3d 873, 877 (6th Cir. 2007) (“Even assuming GAF scores are 

determinative, the record supports a GAF in the high 40s to mid 50s, which would 

not preclude her from having the mental capacity to hold at least some jobs in the 

national economy.”).8

 

 Therefore, to the extent Plaintiff argues that the mental health evidence 

“would impact his ability to relate to supervisors and co-workers . . .[,]” in addition 

to his “ability to interact with the public,” and that the ALJ’s hypothetical “should 

have included a limitation in the ability to relate to co-workers and supervisors[,]” 

(DE 15 at 17-18), the ALJ has adequately addressed Plaintiff’s social, mental and 

non-exertional limitations. As discussed above, the ALJ’s light work RFC finding 

included several related limitations, and the ALJ’s assessment of Plaintiff’s nonexertional limitations is supported by substantial evidence. In the end, it is the 

 

8 The GAF scale was used to report a clinician’s judgment of an individual’s 

overall level of functioning. Clinicians selected a specific GAF score within the 

ten-point range by evaluating whether the individual was functioning at the higher 

or lower end of the range. See American Psychiatric Ass’n, Diagnostic and 

Statistical Manual of Mental Disorders 33–34 (American Psychiatric Association, 

4th ed. text rev. 2000) (DSM-IV-TR). “Individuals with scores of 51–60 are 

classified as having ‘moderate symptoms ... or moderate difficulty in social, 

occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers).’” Byrne v. Astrue, No. 3:11CV00353, 2012 WL 5988639, at *4 n.5 (S.D. 

Ohio Nov. 29, 2012) (report and recommendation of Ovington, M.J.) (quoting 

DSM–IV–TR at 34). However, “the most recent version of the DSM does not 

include a GAF rating for assessment of mental disorders.” Bryce v. Comm'r of 

Soc. Sec., No. 12-CV-14618, 2014 WL 1328277, at *10 (E.D. Mich. Mar. 28, 

2014). 

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33

claimant’s burden to prove his or her RFC. See 20 C.F.R. § 416.912(a);9 Foster v. 

Halter, 279 F.3d 348, 353 (6th Cir. 2001). It is not this Court’s role to reject the 

ALJ’s findings, even if it might have reached a different conclusion had it served 

as the trier of fact in the first instance. Braden v. Secretary of Health & Human 

Services, No. 90-3028, 1990 WL 177211, 2 (6th Cir. Nov. 14, 1990) (“If the 

administrative decision is supported by substantial evidence, it must be affirmed 

even if the court as trier of fact would have arrived at a different conclusion.”) 

(citing Elkins v. Secretary of Health and Human Services, 658 F.2d 437, 439 (6th 

Cir.1981)). 

4. The ALJ did not commit reversible error in failing to 

address Mr. Hassan’s “borderline age” in his decision. 

Plaintiff’s final statement of error concerns the ALJ’s alleged failure to 

address Plaintiff’s “borderline age.” (DE 15 at 18-23.) By way of background, the 

ALJ found that Plaintiff, “was born on June 13, 1958 and was 51 years old, which 

is defined as an individual closely approaching advanced age, on the alleged 

disability onset date [of April 1, 2010][.]” (R. at 29; see also 20 C.F.R. §§ 

404.1563(d), 416.963(d) (“If you are closely approaching advanced age (age 50–

54), we will consider that your age along with a severe impairment(s) and limited 

work experience may seriously affect your ability to adjust to other work.”).) 

 

9 “In general, you have to prove to us that you are blind or disabled.” 20 C.F.R. 

416.912(a). 

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However, at the time of the April 30, 2013 hearing, Plaintiff was 54 years 

old. (R. at 41.) Moreover, by the time of the ALJ’s June 5, 2013 decision, 

Plaintiff was just eight days shy of turning 55 years old, at which time he would be 

considered a “person of advanced age.” 20 C.F.R. §§ 404.1563(e), 416.963(e) 

(“We consider that at advanced age (age 55 or older), age significantly affects a 

person's ability to adjust to other work. We have special rules for persons of 

advanced age and for persons in this category who are closely approaching 

retirement age (age 60 or older).”). 

Here, Plaintiff argues that ALJ Blair committed reversible error in failing to 

address Plaintiff’s “borderline age” in his decision as required. (DE 15 at 18-23.). 

The Social Security Administration provides some guidance on application of the 

age categories: 

When we make a finding about your ability to do other work under § 

404.1520(f)(1), we will use the age categories in paragraphs (c) 

through (e) of this section. We will use each of the age categories that 

applies to you during the period for which we must determine if you 

are disabled. We will not apply the age categories mechanically in a 

borderline situation. If you are within a few days to a few months of 

reaching an older age category, and using the older age category 

would result in a determination or decision that you are disabled, we 

will consider whether to use the older age category after evaluating 

the overall impact of all the factors of your case. 

20 C.F.R. §§ 404.1563(b), 416.963(b) (emphasis added). Plaintiff asserts that, 

applying the “advanced age” category, he would be found disabled under 20 

C.F.R., Part 404, Subpt. P, App. 2 § 202.06. (DE 15 at 19, 21.) 

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The Commissioner agrees that this case presents a borderline age situation, 

but also takes the position that Plaintiff “has not established that ‘additional 

adversities’ justify the use of the higher age category.” (DE 16 at 18.) Here, the 

Social Security Administration’s Hearings, Appeals, and Litigation Law Manual 

(HALLEX) provides some guidance on applying the medical-vocational guidelines 

in borderline age situations. If a borderline situation exists: 

. . . the adjudicator must decide whether it is more appropriate to use the 

higher age or the claimant's chronological age. (Use of the higher age 

category is not automatic.) To decide which age category to use, take a 

“sliding scale” approach. Under this approach, the claimant must show

progressively more additional vocational adversity(ies) — to support use of 

the higher age — as the time period between the claimant's actual age and 

his or her attainment of the next higher age category lengthens. 

 

One finds additional vocational adversity(ies) if some adjudicative factor(s) 

is relatively more adverse when considered in terms of that factor's stated 

criteria, or when there is an additional element(s) which has adverse 

vocational implications. Examples of these additional vocational 

adversities are the presence of an additional impairment(s) which 

infringes upon—without substantially narrowing—a claimant's remaining 

occupational base; or the claimant may be barely literate in English, have 

only a marginal ability to communicate in English, or have a history of 

work experience in an unskilled job(s) in one isolated industry or work 

setting. (An isolated industry would be such as fishing or forestry.) Other 

adverse circumstances in individual cases may justify using the higher age 

category. 

Absent a showing of additional adversity(ies) justifying use of the higher age 

category, the adjudicator will use the claimant's chronological age — even 

when the time period is only a few days. The adjudicator need not explain 

his or her use of the claimant's chronological age. 

HALLEX, II-5-3-2 (emphases added). 

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36

The Court should find that the ALJ did not err in assessing Plaintiff by his 

chronological age or in refraining from express comment on Plaintiff’s borderline 

age situation. (R. at 29.). Plaintiff testified that he completed two years of college, 

and the VE classified his past work as an automobile salesperson as skilled with an 

SVP of 6. (R. at 41, 53.) Also, the ALJ recognized that Plaintiff “has at least a 

high school education and is able to communicate in English[.]” (R. at 29, see also

20 C.F.R. §§ 404.1564(4),(5), 416.964(4),(5).) Thus, guided by HALLEX, II-5-3-

2, Plaintiff does not have the additional vocational adversities of barely literate in 

English, marginally able to communicate in English, or unskilled work history. 

Plaintiff further directs the Court’s attention to SSA’s Program Operations 

Manual System (POMS) DI 25015.005 (“Age as a Vocational Factor.”), 

Subsection (D) of which concerns “[w]hen to use the next higher age category in a 

borderline age situation[.]” “Examples of mental limitations that could be 

considered additional vocational adversities include moderate limitations in: 

 Understanding and memory, such as the inability to understand and 

remember detailed instructions 

 Sustained concentration and persistence, such as the inability to 

maintain attention and concentration for extended periods 

 Social interaction, such as the inability to interact appropriately with 

the general public 

 Adaptation, such as the inability to travel in unfamiliar places or use 

public transportation; see DI 25020.010. 

(POMS) DI 25015.005(D)(2). Plaintiff contends he has additional vocational 

adversities, based upon the ALJ’s: Step 2 finding of a severe impairment of 

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37

adjustment disorder with depressed mood (R. at 23); Step 3 findings of moderate 

difficulties with social functioning and with regard to concentration, persistence or 

pace (R. at 24); Step 4 RFC limitations of “no jobs involving concentration on 

detailed or precision tasks . . .” and “work requiring only brief and superficial 

contact with the public[,]” (R. at 25-26); and, Step V observation that Plaintiff’s 

“ability to perform all or substantially all of the requirements of this level of work 

has been impeded by additional limitations[,]” (R. at 30). 

However, the mental RFC restrictions to which Plaintiff points – “no jobs 

involving concentration on detailed or precision tasks or multi-tasking, reading, 

computing/calculating, or problem solving[,]” and “work requiring only brief and 

superficial contact with the public[,]” (DE 15 at 22, R. at 25-26) – do not alone 

require remand when the ALJ has failed to expressly discuss a “borderline age 

situation.” Caudill v. Commissioner of Social Security, 424 F.App’x 510, 513, 

516-518 (6th Cir. 2011) (concluding that “[t]he ALJ properly categorized Caudill as 

an individual ‘closely approaching advanced age’ rather than a person of 

‘advanced age[,]’” even though the ALJ found that Plaintiff “has poor ability to 

understand, remember and carry out complex job instructions. He has fair ability to 

understand, remember and carry out detailed but not complex job instructions.”); 

Bowie v. Commissioner of Social Security, 539 F.3d 395, 396, 401 (6th Cir. 2008) 

(where the ALJ found that Bowie was “capable of performing unskilled sedentary 

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exertional work[,]” but “unable to perform any of her past relevant work as an 

assembler in the automobile industry[,]” the Court still “did not find problematic 

the ALJ’s failure to explain her age-categorization reasoning because the ALJ’s 

reasons were apparent from the record.”). Here, the ALJ noted that the 

consultative psychological examiners found that Plaintiff “has no difficulty 

comprehending simple directions,” and “displayed significant cognitive strengths 

in memory, attention, and concentration.” (R. at 28.) The ALJ also observed that 

the consultative examiners “failed to identify any limitations in the claimant’s 

ability to tolerate workplace social interactions.” (R. at 29.) 

Moreover, the ALJ was not required to explain his or her use of Plaintiff’s 

chronological age. See HALLEX, II-5-3-2. As the Sixth Circuit has noted, 

“Although an ALJ does not have a procedural obligation to address a claimant’s 

borderline age situation in his opinion or explain his reasons or arriving at a 

particular age categorization, lack of an explanation may in some cases mean that 

the ALJ’s ultimate decision is not supported by sufficient evidence.” Bowie, 539 

F.3d at 401. However, in Plaintiff’s case, the record does not support a conclusion 

that Plaintiff cannot read and write in English, his past relevant work is skilled, 

and, as discussed above, the ALJ already accounted for Plaintiff’s moderate 

difficulties in social functioning and concentration, persistence or pace. Moreover, 

at Step 5, the ALJ relied on the VE’s testimony (R. at 30.), and, as previously 

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noted, the ALJ’s hypothetical to the VE included all of the limitations supported by 

the record. Furthermore, Plaintiff has not demonstrated “other adverse 

circumstances” justifying use of the higher age category in HALLEX, II-5-3-2. 

For these reasons, the Court need not remand this case to “address Mr. Hassan’s 

borderline age[.]” (DE 15 at 23.) 

G. Conclusion

 In sum, from a review of the record as a whole, the Undersigned concludes 

that substantial evidence supports the ALJ’s decision denying benefits. 

Accordingly, it is RECOMMENDED that the Court DEEM MOOT Plaintiff’s 

motion for summary judgment (DE 14), DENY Plaintiff’s amended motion for 

summary judgment (DE 15), GRANT Defendant’s motion for summary judgment 

(DE 16), 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 

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40

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 

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: December 7, 2015 s/Anthony P. Patti 

 Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

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

on December 7, 2015, electronically and/or by U.S. Mail. 

 s/ Michael Williams 

 Case Manager for the 

Honorable Anthony P. Patti 

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